WORLD TRADE  
ORGANIZATION  TN/DS/W/89 
31 May 2007 
 
 (07-2227) 
Dispute Settlement Body 
Special Session Original:   English 
 
 
 
FLEXIBILITY AND MEMBER CONTROL 
 
Revised Textual Proposal by Chile and the United States  
 
Communication from Chile and the United States  
  
 The following communication, dated 30 May 2007, is being circulated at the request of the delegation of Chile and the United States. 
 
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  Following further informal discussions with dele gations in the context of the Special Session 
of the Dispute Settlement Body, Chile and the Unite d States have revised the proposed text for items 
(a) through (e) of their proposal on flexibility and Memb er control.  Those revisions have particularly 
benefitted from three simple guidelines that can help clarify and improve agreement text:  (1) use the 
same term throughout to mean the same concept, (2) wherever possible, use singular rather than plural 
terms, and (3) avoid the use of the passive voice.    
 The original textual proposal was circulated as TN/DS/W/52 and reprodu ced in TN/DS/W/82.  
In this document, additions to the existing text of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes  are indicated through double-underlining, and deletions are 
indicated through strike-through.  In addition, changes from the original textual proposal are indicated in bold.
1 
 
 
(a) interim reports at the Appellate Body stage  
 
Article 17  
 
5. (a) As a general rule, the proceedings shall not exceed 60  90 days from 
the date a party to the dispute formally  notifies its decision to appeal to the 
date the Appellate Body circulates its report.  In fixing its timetable the 
Appellate Body shall take into accoun t the provisions of paragraph 9 of 
Article 4, if relevant.  When the A ppellate Body considers that it cannot 
circulate provide  its report within 60  90 days, it shall inform the DSB in 
writing of the reasons for the delay toge ther with an estimate of the period 
within which it will circulate submit  its report.  In no case shall the 
proceedings exceed 90  120 days.   
 
                                                      
1 Additional conforming amendments, such as corrections to Article references, may be needed or 
appropriate once the substantive text has been agreed upon. TN/DS/W/89 
Page 2  
 
   (b) Following the consideration of submissions and oral arguments, the 
Appellate Body shall issue an interim report to the parties to the dispute , 
including both the descriptive sections and the Appellate Body's findings and 
conclusions.  Within a period of time set by the Appellate Body, a party to 
the dispute  may submit a written request for the Appellate Body to review 
precise aspects of the interim report prior to circulation of the final report to 
the Members.  At the request of a party to the dispute , the Appellate Body 
shall hold a further meeting with the parties to the dispute  on the issues 
identified in the written comments.  If no party to the dispute submits 
comments  within the comment period, the in terim report shall be considered 
the final report and circulated promptly to the Members.  The Appellate 
Body shall include in its final report  a discussion of the comments  made at 
the interim review stage.  
 
(b) providing a mechanism for parties, after re view of the interim report, to delete by 
mutual agreement findings in the report  
 
Article 12  
 
7. Where the parties to the dispute failhave failed  to develop a mutually 
satisfactory solution, the panel shall submit its findings in the form of a written report 
to the DSB.  In such cases, the report of a  panel shall set out in its report  the 
findings of fact, the applicability of relevant  provisions and the basic rationale behind 
any findings and recommendations that it makes.  The panel shall not include in its 
report circulated to the Members  any finding, any finding together with its basic 
rationale , or a basic rationale behind a finding (where there is more than one basic 
rationale behind the finding) , that the parties to the dispute  have agreed is not to be 
included.   Where a settlement of the matter among the parties to the dispute has 
been found have reached a solution to the matter , the report of the panel shall be 
confined to a brief description of the case a nd to reporting that a solution has been 
reached.   
 Article 17
 
 
13. Where the parties to the dispute fail to develop a mutually satisfactory 
solution, the Appellate Body shall submit its  findings in the form of a written report 
to the DSB.  In such cases, the Appellate Body shall set out in its report  the 
applicability of relevant provisions and th e basic rationale behind any findings and 
recommendations that it makes.   The Appellate Body may uphold, modify or reverse 
the legal findings and conclusions of the pane l.  The Appellate Body shall not include 
in its report circulated to the Members  any finding, any finding together with its 
basic rationale,  or a basic rationale behind a finding (where there is more than one 
basic rationale behind the finding),  that the parties to the dispute have agreed is not 
to be included.  Where the parties to the dispute have reached a solution to the 
matter, the report of the Appellate Body shall be confined to a brief description 
of the case and to reporting that a solution has been reached, and the report of 
the panel shall be void and of no legal effect.  Where the parties to the dispute 
have reached a solution to the appeal: (a ) the report of the Appellate Body shall 
be confined to a brief description of the case and to reporting that a solution to 
the appeal has been reached, and (b) if a party to the dispute so requests, the 
DSB shall adopt the panel report within 21 days of circulation of the Appellate 
Body report, unless the DSB decides by  consensus not to adopt the report.   TN/DS/W/89 
 Page 3 
 
 
   
(c) "partial adoption" procedure, where the DS B would decline to adopt certain parts of 
reports while still allowing the parti es to secure the DSB recommendations and 
rulings necessary to help resolve the dispute 
 
Article 16  
 
4. Within 60 days after the date of circ ulation of a panel report to the Members, 
the DSB shall adopt  the report shall be adopted at a DSB meeting7 unless a party 
to the dispute formally notifies the DSB of its decision to appeal or the DSB decides 
by consensus not to adopt the report.2   The  DSB may by consensus decide not to 
adopt a finding in the report or a basic rationale behind a finding .  If a party has 
notified its decision to appeal, the report by the panel shall not be considered for 
adoption by the DSB until after completion of the appeal.  This adoption procedure is 
without prejudice to the right of Members to express their views on a panel report. 
 
Article 17   
 
14. The DSB shall adopt an An Appellate Body report shall be adopted by the 
DSB and unconditionally accepted by the parties to the dispute  unless the DSB 
decides by consensus not to adopt the Appellate Body report within 30 days 
following its circulation to the Members.3  The DSB may by consensus decide not to 
adopt a finding in the report or a basic rationale behind a finding .  This adoption 
procedure is without prejudice to the right of Members to express their views on an Appellate Body report. 
 
(See also proposed DSB decision below. ) 
 DSB decision on the procedure for partial adoption: 
 
 "A Member proposing that a finding, or basic rationale behind a finding, in a panel or 
Appellate Body report should not be adopted by the Dispute Settlement Body shall 
submit the proposal in writing to the Disput e Settlement Body no later than 3 days (or 
the WTO working day following the 3rd day if the 3rd day is a non-working day for the WTO) after the issuance of the airgram convening the meeting at which the report is proposed to be considered.
4   The Member shall specify in the proposal the finding, 
or the basic rationale behind a finding , at issue and give a brief description of the 
reason not to adopt." 
  
                                                     
 
2 [No change proposed to footnote 7 in current DSU:] If a meeting of the DSB is not scheduled within 
this period at a time that enables the requirements of paragraphs 1 and 4 of Article 16 to be met, a meeting of the DSB shall be held for this purpose. 
3 [No change proposed to footnote 8 in current DSU:] If a meeting of the DSB is not scheduled during 
this period, such a meeting of the DSB shall be held for this purpose. 
4 In the case of a panel report, the Member shall subm it the proposal no later than 3 days (or the WTO 
working day following the 3rd day if the 3rd day is a non-working day for the WTO) after the issuance of the 
airgram convening either:  (1) the meeting at which the panel report is proposed to be considered if no party has filed a notice of appeal;  or (2) the meeting at which the panel report together with the Appellate Body report is 
proposed to be considered if a party has filed a notice of appeal.
  TN/DS/W/89 
Page 4  
 
  (d) providing the parties a right, by mutual  agreement, to suspend panel and Appellate 
Body procedures to allow time to c ontinue to work on resolving the dispute 
 
Article 12
  
 
12. The panel may suspend its work at any time at the request of the complaining 
party for a period not to exceed 12 months.  The panel shall suspend its work where 
the parties to the dispute  so agree.  In the event of such a suspension, the 
time-frames set out in paragraphs 8 and 9 of this Article,  paragraph  1 of Article 20, 
and paragraph 4 of Article 21 shall be exte nded by the amount of time that the work 
was suspended.  If the work of the pane l has been suspended for more than 12 
months, the authority for establishment of the panel shall lapse. 
 Article 17
 
 
In addition to the amendment under item (a) above: 
   (c) The Appellate Body shall suspe nd its work where the parties to the 
dispute so agree.  In the event of such  a suspension, the time-frames set out in 
this paragraph, Article 20, and paragrap h 4 of Article 21 shall be extended by 
the amount of time that the work was suspended.  
 
(e) ensuring that the members of panels  have appropriate expertise to appreciate the 
issues presented in a dispute 
 
Article 8   
 
2. Panel members should be selected with a view to ensuring the independence of the members, expertise to examine the kind of matter at issue in the dispute, 
a 
sufficiently diverse background and a wide spectrum of experience. 
  
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