WORLD TRADE  
ORGANIZATION  TN/DS/W/86 
21 April 2006 
 (06-1858) 
Dispute Settlement Body 
Special Session Original:   English 
 
 
  
FURTHER CONTRIBUTION OF THE UNIT ED STATES TO THE IMPROVEMENT 
OF THE DISPUTE SETTLEMENT UNDERSTANDING OF THE WTO 
RELATED TO TRANSPARENCY – REVISED LEGAL DRAFTING 
 
Communication from the United States
 
   The following communication, dated 20 April 2006,  is being circulated at the request of the 
delegation of the United States. 
 
_______________ 
 
  Over 10 years of experience under the WTO dis pute settlement system h as demonstrated that 
the system would be improved by enhancing its tr ansparency.  The recommendations and rulings of 
the Dispute Settlement Body ("DSB") can affect large sectors of civil society, and increased 
membership in the WTO has also meant that more gove rnments and their nationals have an interest in 
those recommendations and rulings.  
 The United States recalls its pending proposals to  help achieve a more open and transparent 
dispute settlement process (TN/DS/W/13), incl uding proposed textual amendments to the 
Understanding on Rules and Procedures Governing the Settlement of Disputes  ("Dispute Settlement 
Understanding" or "DSU") or proposed decisions of  the Dispute Settlement Body (TN/DS/W/46) and 
its observations on some practical considerations involved in open meetings (TN/DS/W/79).  After 
further discussion with delegations re lated to the legal drafting of those proposals and in light of some 
of the legal drafting guidelines that have been suggested
1, the United States would propose revising 
the drafting of those proposals in certain places.  These revisions are reflected in the following.2  For 
Members' convenience, the United States is also including an annex that specifies the drafting changes.  
(1) Open meetings
 
  US proposal : 
 
  The DSU should provide that the public may observe all substantive panel, Appellate 
Body and arbitration
3 meetings with the parties except those portions dealing with 
                                                      
1 In particular the United States ap preciates the suggested guidelines to use the same term throughout to 
mean the same concept and, wherever po ssible, to use singular rather than plural terms and avoid the use of the 
passive voice. 
2 Additional conforming amendments, such as corrections to Article references, may be needed or 
appropriate once the substantive text has been agreed upon. 
3 This would include arbitration under Articles 21.3(c), 22.6, and 25 of the DSU. TN/DS/W/86 
Page 2  
 
  confidential information (such as business c onfidential information or law enforcement 
methods).  The DSU could provide a basic set of procedures for this  purpose with some 
flexibility for the relevant body to refine these in  light of the particular circumstances of a 
specific proceeding.  For example, the proce dures could provide a number of options for 
allowing the public to observe the meetings, such as broadcasting meetings to special viewing 
facilities. 
 To reflect the proposal in the text of the DSU
: 
 
(a) Article 18 of the DSU is amended by inserting the following new paragraph 3: 
 
"3. Each substantive meeting with the part ies of a panel, the Appellate Body, or 
an arbitrator, and each meeting of a panel or  arbitrator with an expert, shall be open 
for the public to observe4, except for any portion dea ling with confidential 
information.5" 
(b) Appendix 3 is amended by deleting paragraph 2. 
  Conforming changes to reflect the inclusion of arbitrators in Article 18:  (c) Article 18 is amended by deleting in the title "with the Panel or Appellate Body".  
 
(d) Paragraph 1 of Article 18 is amended by deleting "panel or Appellate Body" and inserting in 
its place "panel, Appellate Body, or arbitrator,"  both places that it occurs and by inserting the 
following footnote after the first appearance of the term "arbitrator": "
6". 
 (2) Timely access to submissions
 
 
US proposal: 
 
 The DSU should provide that parties' submissions and written versions of oral statements in panel, Appellate Body, or ar bitration proceedings are public, except those 
portions dealing with confidential information. 
 
 To help facilitate public access to thes e documents, the Secretariat should maintain 
them in a central location that would be res ponsible for making these documents available to 
the public. 
 
To reflect the proposal
: 
 
(e) Paragraph 2 of Article 18 is  amended to read as follows: 
 
"2. Any document7 that a Member provides to a panel, the Appellate Body, or an 
arbitrator shall be public, except for conf idential information.  Nothing in this 
                                                      
4 The expression "observe" does not re quire physical presence in the meeting. 
5 For purposes of this Article, the term "confidential information" means certain factual information 
designated as such by the Member at the time that Member submitted the information. 
6 As used in this Article, the expression "arbitrator" means any arbitrator under paragraph 3(c) of 
Article 21, Article 22, or Article 25.  [NOTE:  this list is intended to include all arbitration proceedings under 
the DSU and the references would need to be up dated to reflect any amendments to the DSU.] 
7 The term "document" does not include a document concerning an interim report or that is purely 
administrative in nature.  TN/DS/W/86 
 Page 3 
 
 
  Understanding precludes a Member from disclos ing statements of its own positions to 
the public.  A Member shall not disclose another Member's confidential information.  The Member submitting the confidential inform ation shall provide within 15 days of 
the request of another Member a non-confidential summary of the information." 
(f) Appendix 3 is amended by dele ting paragraph 3 and renumbering the subsequent paragraphs 
accordingly.  
 (g) A decision by the DSB:   "The Dispute Settlement Body directs the Secret ariat to maintain the documents referenced in 
paragraph 2 of Article 18 in a central location a nd to make these documents available to the public, 
except for confidential information."  (3) Timely access to Final Reports
 
 
US proposal: 
 
 The WTO should make a final panel report available to WTO Members and the public once it is issued to the parties, alt hough only circulation would trigger the relevant 
DSU deadlines. 
 
Text to reflect the proposal
: 
 
(h) A decision by the DSB: 
  "A final report issued by a panel to the parties is an unrestricted document, except for any 
confidential information (as defined in Article 18).  Any interim report considered final by operation 
of the last sentence of paragraph 2 of Article 15 is unrestricted when considered final.   
  "This decision is without prejudice to the practice concerning the date of circulation of the report.
8" 
 
(4) Amicus curiae  submissions  
 
US proposal: 
 
 In light of the experience to date with am icus curiae submissions to panels and the 
Appellate Body, Members may wish to consid er whether it would be helpful to propose 
guideline procedures for handling amicus curiae  submissions to address those procedural 
concerns that have been raised by Members, panels and the Appellate Body. 
 
 The United States notes with interest the pro cedures proposed by the European Communities 
for handling amicus curiae  submissions (TN/DS/W/1) and looks forward to working with the 
                                                      
8 That practice was established on a trial basis and under that practice a docu ment is deemed to be 
circulated on the "date printed on the WTO document to be  circulated with the assurance of the Secretariat that 
the date printed on the document was the date on which this document was effectively put in the pigeon holes of delegations in all three working languages."   (WT/DSB/M/2). TN/DS/W/86 
Page 4  
 
  European Communities and other Members on this issu e.  The United States does not believe that an 
amendment to the Dispute Settlement Unde rstanding is necessary for this purpose. 
  TN/DS/W/86 
 Page 5 
 
 
  Annex:  Revised Legal Drafting Showing Ch anges from Proposed Text in WT/DS/W/46  
  This Annex reproduces and marks the revised legal dr afting proposed above to show changes from the 
text proposed in WT/DS/W/46 (additions in bold and underline, deletions in strike-through). 
 
(1) Open meetings
 
 (a) Article 18 of the DSU is amended by inserting the following new paragraph 3: 
 
"3. Each
 All substantive meetings  with the parties of a panel, the Appellate 
Body, or an arbitrator ,3 and each meeting of a panel or arbitrator with an expert,  
shall be open for the public to observe1 except for any those  portions  dealing with 
confidential information.2" 
[NOTE: the text in footnote 3 of TN/DS/W/46 has been moved to the new footnote proposed in 
subparagraph (d) for paragraph 1 of Article 18.  Ch anges to footnote 3 of TN/DS/W/46 are marked in 
the footnote in subparagraph (d).]  (b) Appendix 3 is amended by deleting paragraph 2. 
  Conforming changes to reflect the inclusion of arbitrators in Article 18: 
 
(c) Article 18 is amended by deleting in the title "with the Panel or Appellate Body".  
 (d) Paragraph 1 of Artic le 18 is amended by deleting "panel or Appellate Body" and inserting 
in its place "panel, Appellate Body, or arbitrator,"  inserting ", arbitrator," after "panel"  both places 
that it occurs and by inserting the following footnote after the first appearance of the term 
"arbitrator":3 
 
(2) Timely access to submissions  
 (e) Paragraph 2 of Article 18 is  amended to read as follows: 
 
"2. Any
 A Member's  document4 that a Member  provide sd to a panel, the 
Appellate Body, or an arbitrator shall be public, except for confidential information.  
Nothing in this Understanding shall  preclude s a Member  party to a dispute  from 
disclosing statements of its own positions to  the public.  A Member shall not disclose 
another Member's confidential information.   The Member submitting the confidential 
information shall provide within 15 days  of the request of another Member a 
non-confidential summary of the information." 
 
                                                      
1 The expression "observe" does not re quire physical presence in the meeting. 
2 For purposes of this Article, the term "confidential information" sh all mean s certain factual 
information designated as such by the Member  party or third party to the dispute  at the time that Member  party 
or third party  submitted the information. 
3 As used in this Article, the expression "arbitrator" means any arbitrator under paragraph 3(c) of 
Article 21, paragraph 6 of  Article 22, or Article 25.  [NOTE:  this  list is intended to include all arbitration 
proceedings under the DSU and the refe rences would need to be updated to reflect any amendments to the 
DSU.] 
4 The term "documents " does not include a documents  concerning an interim report or that is are purely 
administrative in nature. TN/DS/W/86 
Page 6  
 
  (f) Appendix 3 is amended by dele ting paragraph 3 and renumbering the subsequent paragraphs 
accordingly.  
 (g) A decision by the DSB:  
 "The Dispute Settlement Body directs the Secret ariat to maintain the documents referenced in 
paragraph 2 of Article 18 in a central location and to
 make these documents available to the public, 
except for  other than  confidential information." 
 (3) Timely access to Final Reports
 
 
(h) A decision by the DSB:   "A final report issued by a panel to the parties is
 shall be  an unrestricted document, except for 
any confidential information (as defined in Article  18).  Any interim report considered final by 
operation of the last sentence of paragraph 2 of Article 15 is shall be  unrestricted when considered 
final.     "This decision is without prejudice to the practice concerning the date of circulation of the report.
5" 
 
__________ 
 
 
                                                      
5 That practice was established on a trial basis and under that practice a docu ment is deemed to be 
circulated on the "date printed on the WTO document to be  circulated with the assurance of the Secretariat that 
the date printed on the document was the date on which this document was effectively put in the pigeon holes of 
delegations in all three working languages."   (WT/DSB/M/2).