WT/DS316/R 
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ANNEX C 
 
REPORT OF THE DESIGNATED REPRESENTATIVE, INCLUDING 
ATTACHMENTS 1 AND 2 (WORKING PROCEDURES FOR DEVELOPING 
INFORMATION UNDER ANNEX V OF TH E AGREEMENT ON SUBSIDIES AND 
COUNTERVAILING MEASURES;  AND PR OCEDURES FOR THE PROTECTION 
OF BUSINESS CONFIDENTIAL INFORMATION AND HIGHLY SENSITIVE  
BUSINESS INFORMATION) 
 
 
Contents Page 
Annex C-1 Procedure under Annex V of  the Agreement on Subsidies and 
Countervailing Measures – Report to the Panel from the Facilitator C-2 
Attachment 1  Working Procedures for De veloping Information under Annex V of 
the Agreement on Subsidies and Countervailing Measures C-10 
Attachment 2  Procedures for the Protection of Business Confidential Information 
and Highly Sensitive Business Information in the Procedure under Annex V of the SCM Agreement C-13 WT/DS316/R  
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 ANNEX C 
 
EUROPEAN COMMUNITIES AND CERTAI N MEMBER STATES – MEASURES  
AFFECTING TRADE IN LARGE CIVIL AIRCRAFT (WT/DS316) 
 
PROCEDURE UNDER ANNEX V OF THE AGREEMENT  
ON SUBSIDIES AND COUNTERVAILING MEASURES 
 
Report to the Panel from the Facilitator  
 
(24 February 2006) 
  A. B
ACKGROUND  
 
1. On 20 July 2005, the Dispute Settlement Body  ("DSB") established a Panel at the request of 
the United States with respect to the above matter.  In its request for establishment of a panel, the 
United States invoked, inter alia , paragraph 4 of Article 7 of the SCM Agreement  and requested that, 
upon establishment of a panel in this matter, the DSB initiate the procedures provided for in Annex V 
of the SCM Agreement , pursuant to paragraph 2 of that Annex.1  
 
2. On 23 September 2005, the DSB initiated th e procedures for developing information 
concerning serious prejudice under Annex V of the SCM Agreement , pursuant to paragraph 2 of 
Annex V of the SCM Agreement , and designated Mr. Mateo Diego-Fernández as a representative to 
serve the function of facilitating the information- gathering process, pursuant to paragraph 4 of 
Annex V of the SCM Agreement .2  
 B. W
ORKING PROCEDURES  
 3. Annex V does not describe all aspects of the procedures for developing information 
concerning serious prejudice.  On 30 Septem ber 2005, Mr. Diego-Fernández (the "Facilitator") 
adopted Working Procedures for the Annex V procedure
3 (the "Working Procedures") after consulting 
upon them with the United States a nd the European Communities.   
 4. The Working Procedures provided for a round of  questions and responses, and then a round 
of follow-up questions and responses.  In e ach round, the United States and the European 
Communities would submit draft questions, comment on each other's draft questions and then pose 
final versions of the draft questions.  Upon review  of the questions submitted by the parties, the 
Facilitator would transmit questions that he cons idered necessary "to ensure the timely development 
of the information necessary to facilitate expeditious subsequent multilateral review of the dispute" as 
set out in paragraph 4 of Annex V.  Questions c ould be addressed to third-country Members in the 
initial round of questions.  Each party and third-co untry Member would respond to each question, or 
specify the reason why it did not respond, by a particular date. 
 
                                                     
 
1 Document WT/DS316/2.  See also the minutes of the meetings of the DSB held on 13 June 2005 
(WT/DSB/M/191, para. 4) and 20 July 2005 (WT/DSB/M/194, para. 49). 
2 See the minutes of the meeting of the DSB held on 23 September 2005 (WT/DSB/M/197, paras. 6 
and 9). 
3 The Working Procedures, as modified, are contained in Attachment 1 to this report. WT/DS316/R  
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 5. Third-country Members were identified by the parties in their draft questions.4 
6. The Working Procedures were transmitted to the parties upon adoption and to third-country 
Members at the time of transmission of questions to such Members.  
7. The Working Procedures were modified on va rious occasions after c onsultations with the 
parties, in accordance with paragraph 16.  On 4 N ovember 2005, at the request of the parties, the 
Facilitator modified the date for submission of responses to initial questions in paragraph 6 by 
postponing it one week.  On 15 November 2005, at the request of the parties, the Facilitator modified 
the method of delivery of responses in paragraph 12 to  allow submissions to be made exclusively in 
electronic form.  On 24 November 2005, the Facilita tor modified the date for submission of draft 
follow-up questions in paragraph 7 by postponi ng it one week, with additional time for those 
questions which followed up on certain responses submitte d after the deadline.  At the same time, the 
Facilitator also eliminated the procedures for submission of comments on follow-up questions and finalized versions in para graphs 7 and 8, in order to avoid undue delays in the process.  Modifications 
to the Working Procedures were notified to the par ties and to third-country Members upon adoption.   
 C. B
USINESS CONFIDENTIAL INFORMATION AND HIGHLY SENSITIVE BUSINESS INFORMATION  
 8. The Annex V process shall – pursuant to footnot e 67 of Annex V – take into account the need 
to protect information which is by nature confiden tial or which is provided on a confidential basis by 
any Member involved in this process.  In this connect ion, and in light of the particularities of the large 
civil aircraft ("LCA") industry, the need to estab lish rules for the enhanced protection of certain 
information was recognized.  Accordingly, paragra ph 17 of the Working Procedures provided for the 
possibility of procedures for the protection of busin ess confidential information.  On 10 October 2005, 
the European Communities requested that the F acilitator adopt additional procedures for the 
protection of business confidential information and highly sensitive business information, and 
submitted a set of draft procedures.  At the inv itation of the Facilitator, the United States submitted 
comments to this draft on 13 October 2005.    9. The Facilitator responded by suggesting ways to  most efficiently solicit necessary information 
as well as encourage the co-operation of the parties,  consistent with paragr aph 4 of Annex V of the 
SCM Agreement .  Throughout the development of the pro cedures, the parties underlined that they 
should be specifically tailored to the particular nature  of the market for LCA.  As this market has only 
two producers and a limited number of major purchasers, the parties asserted that certain (e.g. price and cost) data of the LCA producers in these disput es was extraordinarily and uniquely sensitive.  It 
was for this reason that, at the request of the parties, the F acilitator undertook to establish procedures 
to protect this information that substantially ex ceeded the protections that prior WTO panels had 
provided for certain kinds of information.  On 19 October 2005, the Facilitator met the United States 
and the European Communities, and on 21 October 2005, he posed a series of questions to both of them.  On 25 October 2005, the United Stat es and the European Communities responded to the 
Facilitator's questions and, on 28 October 2005 , commented on each other's responses.  On 
                                                     
 
4 The European Communities, in its draft questions  (and in document WT/DS317/2), identified the 
following 49 Members as third country Members: Arge ntina; Australia; Bahrain; Brazil; Brunei; Cameroon; 
Canada; Chile; China; Colombia; Egypt; El Salvador; Fiji; Hong Kong, China; Iceland;  India; Indonesia; Israel; 
Japan; Jordan; Kenya; Kuwait; Madagascar; Malaysia; Mauritania; Mexico; Mongolia; Morocco; Namibia; 
New Zealand; Norway; Oman; Pakistan; Panama; Peru; Philippines; Romania; Senegal; Singapore; 
South Africa; Republic of Korea; Switzerland; Separate Customs Terr itory of Taiwan, Penghu, Kinmen 
and Matsu; Thailand; Trinidad and Tobago; Tunisia; Turkey; United Arab Emirates and Venezuela.  
The Facilitator sent the questions to all these 49 Members. WT/DS316/R  
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 1 November 2005, the Facilitator transmitted to the parties a set of draft procedures, on which the 
parties commented on 3 November 2005.   
10. On 4 November 2005, the Facilitator adopted  the Procedures for the protection of business 
confidential information and highly sensitive business information for the Annex V procedure5 (the 
"BCI/HSBI Procedures") in accordance with para graph 17 of the Working Procedures.  The 
Procedures were transmitted to the par ties and third-country Members.   
 11. Briefly, the BCI/HSBI Procedures accord enha nced protection to information designated by a 
Party or Third Country Member as "Business Confid ential Information" ("BCI") or "Highly Sensitive 
Business Information" ("HSBI").  In respect of  BCI, only "Approved Persons", designated under the 
Procedures, may have access to such information, under specific conditions, and they must use such 
information only for the purposes of the Annex V process.  No Approved Person shall disclose BCI, or allow it to be disclosed, to any person except another Approved Person.  The Procedures also 
restrict copying, transmission and storage of BCI.  In respect of HSBI, the Procedures stipulate, in 
addition, that HSBI shall be submitted to the WTO in electronic form, using locked CDs or two sealed 
laptop computers, and stored at the special HSBI location at the WTO Secretariat.  No HSBI Approved Person shall disclose HSBI to any person except another HSBI Approved Person, and then 
only for the purpose of the specific dispute in which it is being used.  Except as otherwise provided, HSBI shall not be stored, transmitted or copied e ither in written or electronic form.  HSBI Approved 
Persons of a Party may view HSBI on the Sealed laptop computer submitted by the other Party or, in 
the case of HSBI submitted on Locked CDs on a Sta nd-alone computer, only in a designated room at 
one of the HSBI locations, subject to certain conditions.  All HSBI must be stored in a safe at the relevant HSBI location.  D. P
ROCEDURAL ISSUES  
 
1. Approved Persons 
 
12. On 11 November 2005, pursuant to paragraph 23 of the BCI/HSBI Procedures, the United States and the European Communities each submitted to the Facilitator a list of 
Representatives and Outside Advisors who needed access to BCI and HSBI submitted by the other 
party.  On the same day, the designee of the Dir ector-General of the WTO submitted to the Facilitator 
a list of Secretariat employees who needed access to BCI and HSBI in this dispute.  On 
18 November 2005 the United States revised its lis t by reducing the number of Representatives and 
Outside Advisors who needed access to HSBI.
6  
 
13. On 18 November 2005, in accordance with paragraph 26 of the BCI/HSBI Procedures, the 
Facilitator designated as Approved Persons t hose persons included on the list submitted on 
11 November 2005 by the United States, as confirme d on 18 November 2005;  those persons included 
on the list submitted on 11 November 2005 by the European Communities;  and those persons 
included on the relevant list submitted on 11 Novemb er 2005 by the designee of the Director-General 
of the WTO.  He indicated that HSBI Approved Persons were those Approved Persons specifically 
designated as such on the list submitted by the United States on 18 November 2005 
(16 Representatives and 12 Outside Advisors), on the list submitted by the European Communities on 
                                                      
5 The Procedures for the Protection of Busine ss Confidential Information and Highly Sensitive 
Business Information for the Annex V Procedure are contained in Attachment 2 to this report. 
6 The United States reduced its list in reaction to  a comment from the European Communities received 
on 18 November 2005, pointing out that the United States had proposed the maximum number of persons possible under the BCI/HSBI Procedures, and that parties could not, in the future, give access to more persons 
by withdrawing some of the currently approved persons.     WT/DS316/R  
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 11 November 2005 (14 Representatives and 8 Outside Advisors) or by the designee of the 
Director-General of the WTO on the list s ubmitted on 11 November 2005, as well as himself. 
 14. On 5 January 2006, the European Communities notified the designation of two of its existing 
Approved Persons as HSBI Approved Persons and the addition of three new persons to its list of 
Approved Persons.  On 9 January 2006, the United States expressly indicated that it did not object to the designation of the two existing persons.  On 27 January 2006, as no objection was received, one 
additional person, who had been notified by the S ecretariat on 25 January, was added to its list of 
Approved Persons. 
2. Designation of information 
 
15. On 10 January 2006, the United States form ally objected to the European Communities' 
designation of certain information in 17 documents  as highly sensitive business information.  On 
16 January 2006, the European Communities comment ed on the objections, at the invitation of the 
Facilitator.  On 3 and 13 February 2006, the Fac ilitator posed questions to the European Communities 
concerning certain documents, without prejudice to th e status of any other documents.  On 8 and 
14 February 2006, the European Communities r esponded to the Facilitator's questions.   
 16. On 15 February 2006 the Facilitator communicat ed to the parties his view that, while he 
rejected many of the US objections, he accepted the US objection that four documents or parts thereof 
designated as HSBI by the European Communities may not be designated as HSBI and that the 
European Communities should communicate in writi ng any action taken in lig ht of the Facilitator's 
views and the BCI/HSBI Procedures by 20 February 200 6.  On that date, the European Communities 
requested the Facilitator to reconsider certain of  his views, and the United States sent a related 
communication on 21 February 2006.  On 21 and 22 February, the Facilitator took note of the parties' 
communications, confirmed his 15 February views and recalled his 15 February request that the 
European Communities submit written confirmation of an y actions taken in light of those views.  The 
European Communities was also reque sted to inform him whether it had decided to redesignate or 
withdraw the information concerned, so that he could act accordingly.  On 22 February 2006, the 
European Communities indicated, among other things, that, due to the sensitivity of the documents 
concerned, "...the originators ha[d] indicated that th ey need a reasonable time to consider and discuss 
internally how to best proceed.  On the basis of th is, the EC s[aw] no other immediate solution than to 
exclude the four documents concerned ... from th e batch of translations due [that] day."  
The European Communities indicated that it was "wor king closely with the parties concerned to reach 
a decision before the end of th[e] week", and requested the Facilitator to "hold off" on issuing his final 
report until the classification issue was settled a nd all the translations had been submitted.  
On 23 February, the Facilitator took note of the EC  communication and indicated that he intended to 
issue his report by 24 February 2006, and unless he  heard otherwise from the European Communities 
by a certain time on that day, he intended to de em the European Communities to have withdrawn the 
information concerned.  On 24 February, the Euro pean Communities designated two of the documents 
concerned as BCI and withdrew the other two documents.    3. Other procedural issues 
 
17. On 16 November 2005, pursuant to paragr aph 17(d) of the BCI/HSBI Procedures, the 
European Communities designated the Brussels of fice of Sidley Austin Brown Wood LLP as an 
additional Secure site for BCI.  On 17 November 2005, pursuant to paragraph 17(d) of the BCI/HSBI 
Procedures, the United States designated the Washingt on D.C. and Berlin offices of Wilmer Hale as 
two additional Secure sites for BCI.  WT/DS316/R  
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 18. On 18 November 2005, at the time of deliver y of responses, the Facilitator met with the 
United States and the European Communities to discuss certain practical matters concerning the 
smooth functioning of the Annex V process, includ ing the parties' proposed modification of the 
timetable under the Working Procedures, as well as th e operation of the HSBI location at the WTO in 
accordance with the BCI/HSBI Procedures. 
19. On 25 November 2005, pursuant to paragraph 14 of the Working Procedures, the 
United States requested that the European Communi ties provide English-language  translations of all 
the German language documents that it had provide d in its responses to questions and of all the 
German language documents identifie d in Section VIII of the questions  to the European Communities 
(Questions Nos. 340-352).  On 30 November 2005, th e European Communities objected to the request 
insofar as it related to publicly available official  documents or websites to which the United States 
allegedly already had at its di sposal before the Annex V process.  After consulting with the 
United States and the European Communities, on 5 December 2005 the Facilitator fixed a staggered 
time-limit for the European Communities to provide  the requested translations into English of 
documents provided in response to questions as follows:  6 January 2006 (750 pages);  
31 January 2006 (750 pages);  and 22 February 2006 (remaining pages). 
 20. Over the course of the Annex V process, the United States and th e European Communities 
each made a series of comments regarding alleged deficiencies in the responses submitted by the 
other.  The Facilitator took note of these comments.   
 
E. EC
 MEMBER STATES  
 21. Four EC member States (France, Germany, Spain and the United Kingdom) are named as respondents in the request for consultations and th e request for establishment of a panel in this 
dispute.  Much of the information developed in this procedure under Annex V may concern measures 
of these four EC member States.  However, wh ilst the European Communities spoke during the DSB 
meetings which led to the initiation of  this procedure under Annex V of the SCM Agreement  and 
communicated directly with the Facilitator during this  procedure, the EC member States did not.   
 22. On 5 October 2005, in light of certain comments by the United States and the 
European Communities on draft questions
7, the Facilitator wrote to the European Communities stating 
that it was his understanding that in this pro cedure under Annex V, the European Communities 
represented all five respondents in this dispute,  namely itself, France, Germany, Spain and the 
United Kingdom.  Accordingly, he intended to tr ansmit questions to the European Communities on 
behalf of all five respondents and expected that  the European Communities would respond on behalf 
of all five respondents.   
 23. On 6 October 2005, the European Communities replied that it was the proper respondent in 
this case.  It advised that it had never said that it "represent[ed]" its member States but took full responsibility in these proceedings for the actions of its member States and would to the best of its 
ability provide documents that were properly request ed wherever they might be located and trusted 
that the United States would do the same.  It al so considered that the term "and certain member 
States" could be deleted from the title of the dispute.  24. On 5 December 2005, the United States a lleged that several responses submitted by the 
European Communities were ambiguous because they referred to the "European Commission".  The 
                                                     
 
7 The European Communities and the United States exchanged views about whom the questions should 
be addressed to.  (For example, the European Communities opined on this matter in its 29 September 2005 
comments, and the United States, in turn, submitted its views in its 3 October 2005 comments).   WT/DS316/R  
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 United States stated that it was seeking information in the possession of EC institutions as well as the 
member States, all of which, in its view, were res pondents in the dispute in their own right.  It asked 
the Facilitator to send the questions directly to the member States themselves to ensure full and 
adequate responses.   
 
25. On 7 December 2005, the European Communities reiterated its view that it was the sole 
respondent.  It stated that it ha d internally closely cooperated with the member States and other bodies 
concerned to ensure the timely development of in formation and would continue to do so throughout 
the case.  It recalled that the European Commis sion represented the European Communities before the 
WTO but, for clarity, references to the "European Commission" should be read as 
"European Communities".  It asked the Facilita tor to dismiss the United States' request. 
 26. In light of the above statements, the Facilitato r did not transmit any questions directly to the 
EC member States but included several follow-up questions requesting docum ents and information 
that could be expected to be in the possession of a particular EC member State but which had not been 
provided by the European Communities in its responses to the original questions.    27. The Facilitator submits this report without pr ejudice to the issue whether France, Germany, 
Spain and the United Kingdom are separate responde nts in this dispute represented by the 
European Communities, or whether they are inco rporated within the Eu ropean Communities as the 
sole respondent. 
 F. I
NFORMATION GATHERED  
 28. On 7 October 2005, in accordance with pa ragraph 5 of the Working Procedures, the 
Facilitator transmitted 352 questions (many including sub-questions) to the European Communities, 
115 questions (some including sub-questions) to the United States, and eight questions to 
49 third-country Members identified by the parties.    29. The Facilitator did not transmit certain draft questions that he did not consider "necessary to 
facilitate the expeditious subsequent multilatera l review of the dispute" in accordance with 
paragraph 4 of Annex V of the SCM Agreement  and paragraph 5 of the Working Procedures.  Certain 
of these draft questions were submitted by the European Communities, in particular 216 draft questions addressed to the United States concerning the existence and amount  of subsid ization of 
Boeing by the United States and 54 draft questions  addressed to Japan concerning the existence and 
amount of subsidization of Boeing's component ma nufacturers by Japan.  Certain draft questions 
submitted by the United States were also excluded.  The Facilitator also modified certain draft 
questions in order to ensure "the timely developm ent of information" in accordance with paragraph 4 
of Annex V of the SCM Agreement  and paragraph 5 of the Working Procedures. 
 30. On 17 November 2005, the United States and the European Communities jointly informed the Facilitator that they had agreed that neither of them would respond, in the Annex V process, to a 
number of cost-related questions.  As such, they pr ovided a list of 24 questions or sub-questions posed 
to the European Communities and 27 questions posed to  the United States.  They indicated that this 
agreement did not affect the rights and obligatio ns of the parties to request and disclose any 
information at a later stage in the dispute settlement proceeding.  
31. On 18 November 2005, the European Communities and the United States provided responses 
to questions and specified the reason why they did not respond to certain other questions.  The 
following third-country Members responded to questions  posed to them – albeit with widely ranging 
degrees of comprehensiveness – or specified the reason why they did not respond to some or all of the WT/DS316/R  
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 questions8:  Argentina; Australia; Brazil; Canada; Chile;   China; Colombia; El Salvador; Hong Kong, 
China; Iceland; India; Indonesia; Israel; Japan; Jordan; Korea; Madagascar; Malaysia; New Zealand;  
Norway; Panama; Peru; the Philippines; Romania;  Singapore; Switzerland; the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu; Thailand; and Turkey.   
 
32. On 9 December 2005, in accordance with pa ragraph 9 of the Working Procedures, the 
Facilitator transmitted 280 follow-up questions  (many including sub-questions) to the 
European Communities and 31 follow-up questions to the United States.   
 
33. The Facilitator did not transmit certain draft follow-up questions that he considered did not 
ask for clarification or elaboration of responses pr ovided to the original questions, in accordance with 
paragraph 7 of the Working Procedures.   
34. On 22 December 2005, in accordance with paragraph 10 of the Working Procedures, the 
European Communities and the United States provided responses to follow-up questions and specified 
the reason why they did not respond to certain other follow-up questions. 
 35. On 6 and 31 January and 22 February 2006, the European Communities provided translations 
into English of documents provided in response to questions, in accordance with the staggered 
time-limits fixed by the Facilitator on 5 December 2005.
9  
 
36. The questionnaires, replies to questionnaires, follow-up ques tions and replies to follow-up 
questions constitute Annexes I – III to this report.  However, the annexes omit information designated 
as Business Confidential Information ("BCI") and Hi ghly Sensitive Business Information ("HSBI").  
In accordance with paragraphs 30 and 40 of the Pr ocedures for the protection of business confidential 
information and highly sensitive business information for the Annex V procedure, the Facilitator will 
submit BCI and HSBI to the Panel once the Panel h as adopted its own BCI and HSBI procedures.   
  
_______________ 
 
 
ATTACHMENT 1 
 
[Working Procedures, as modified] 
 
ATTACHMENT 2 
 
[BCI/HSBI Procedures] 
 
ANNEX 1:  INFORMATION SUBMITTED BY THE EUROPEAN COMMUNITIES
10 
 
[Non BCI/HSBI CD-ROMs] 
 
ANNEX 2:  INFORMATION SUBMITTED BY THE UNITED STATES 
 
                                                      
8 The following 20 Members did not respond: Bahrain; Brunei; Cameroon; Egypt; Fiji; Kenya; Kuwait; 
Mauritania; Mexico; Mongolia; Morocco; Namibia; Oman; Pakistan; Senegal; South Africa; 
Trinidad and Tobago; Tunisia; Unite d Arab Emirates and Venezuela. 
9 See supra , para. 19. 
10 {Footnote added for the Panel report.} Annexes 1-3 are not reproduced in the Panel report. WT/DS316/R  
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 [Non BCI/HSBI CD-ROMs] 
 
ANNEX 3:  INFORMATION SUBMITTED BY THIRD-COUNTRY MEMBERS 
 
[Non BCI/HSBI CD-ROM produced by the Secretariat] 
 
_______________ 
 WT/DS316/R  
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 ATTACHMENT 1  
 
EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – 
MEASURES AFFECTING TRADE IN LARGE CIVIL AIRCRAFT 
(DS316) 
 
and 
 
UNITED STATES – MEASURES AFFECTING TRADE IN  
LARGE CIVIL AIRCRAFT 
(DS317) 
 
WORKING PROCEDURES FOR DEVELOPING INFORMATION  
UNDER ANNEX V OF THE AGREEMENT ON SUBSIDIES  
AND COUNTERVAILING MEASURES 
 
(24 November 2005) 
  
I. SCOPE OF THE PROCEDURES 
 
1. These procedures apply to the development of  information between the parties pursuant to 
Annex V in disputes DS316 and DS317.  These proce dures provide for the application of identical 
rules and schedules for the separate Annex V processes that will develop the factual records in the 
two disputes.  It shall be without prejudice to the rights and obligations of the parties under the 
SCM Agreement  and the DSU, unless explicitl y otherwise provided herein. 
 
II. STEPS IN THE PROCEDURE 
 
2. On 23 September 2005, each party submitted to th e other party and to the facilitator a draft of 
the questions the party proposes be asked of the ot her party and of third-country Members.  On 
29 September 2005, each party submitted to the ot her party and to the facilitator comments on the 
draft questions submitted by the other party on 23 September 2005.  3. At the request of a party, the facilitator may direct a question equivalent to one directed to 
that party in the Annex V process in one dispute to the other party in the Annex V process in the other 
dispute. 
 4. At the latest on 3 October 2005, each party will transmit to the other party and to the 
facilitator a final version of its questions, which may incorporate revisions to reflect the other party's 
comments and additional questions only in accordance with paragraphs 2 and 3.  
 
5. Upon review of the questions submitted by  the parties, and any comments submitted under 
paragraph 2, the facilitator will transmit to the pa rties and to third-country Members any questions 
that he considers necessary to ensure the timely de velopment of the information necessary to facilitate 
expeditious subsequent multilatera l review of the dispute, at the latest on 7 October 2005. 
 
6. Each party / third-country Member will r espond to each question transmitted to it by the 
facilitator pursuant to paragraph 5 or specify th e reason why it does not respond, at the latest on 
18 November 2005.  WT/DS316/R  
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 7. The parties may submit draft follow-up questions to each other at the latest on 
5 December 2005, except as provided in paragraph 8.   "Follow-up questions" are exclusively those 
questions that ask for clarification or ela boration of responses provi ded under paragraph 6. 
8. The European Communities may submit draft follo w-up questions that ask for clarification or 
elaboration of responses provided by the Unite d States on 23 November 2005 at the latest on 
7 December 2005.  9. Upon review of the follow-up questions s ubmitted by the parties, the facilitator will 
endeavour to transmit to the parties the follow-up que stions that he considers necessary to ensure the 
timely development of the information necessary to  facilitate expeditious subsequent multilateral 
review of the dispute at the latest on 9 December 2005.  10. Each party will respond to each follow-up ques tion transmitted to it by the facilitator, or 
specify the reason why it does not respond, at the latest on 22 December 2005.    
 
11. For ease of reference, when submitting docum ents annexed to responses to questions and 
follow-up questions, parties and third-country Memb ers will number exhibits sequentially, with US 
exhibit numbers prefixed with "US-" and EC exhibi t numbers prefixed with "EC-" (and third-country 
Members using a suitable prefix).  
12. Each party / third-country Member will file  the submissions envisaged in these procedures 
with the Secretariat (Mr. Ferdinand Ferranco (Office 3154)), by 5pm on the deadlines established by 
the facilitator.  In addition, each party must serve a single copy of the submissions envisaged in these 
procedures on the other party, and third-country Members must serve single copies of their responses on both of the parties. 
 
13. The parties and third-country Members may file  submissions with the Secretariat in hard copy 
or electronic format.  They will provide electronic copies of any hard copy submissions to the Secretariat at the time they provide any such  subm issions.  Submissions in electronic format should, 
if possible, be in a format compatible with that us ed by the Secretariat.  If the electronic version is 
provided by e-mail, it should be addressed to DSRe gistry@wto.org, and cc'd to guy.evans@wto.org, 
hiromi.yano@wto.org and matthew.kennedy@wto.org .  If a diskette or CD-ROM is provided, it 
should be delivered to Mr. Ferdina nd Ferranco.  Each party will also provide electronic copies of their 
submissions to the other party, and third-country  Members will provide electronic copies of their 
submissions to both parties.  
14. A party / third-country Member submitting doc uments in response to a question or follow-up 
question will provide a copy in the original language , it being understood that the party / third-country 
Member will also submit an English version if one is  available.  Each party may request translations 
into English of any document or information provide d in response to a question that is not submitted 
in a WTO language as of 25 November 2005.  Each pa rty may also request translations into English 
of any document or information provided in response to a follow-up question that is not submitted in a 
WTO language as of 9 January 2006.  Any such tr anslations will be provided by the party / 
third-country Member submitting the relevant documen t or information.  The time limit for providing 
these translations will be fixed by the facilitator.  15. The facilitator will transmit any responses su bmitted by parties and third-country Members, 
as well as the requested documents and any translati ons thereof, taking account of the time that he 
considers to be necessary for the translation of documents as set out in paragraph 14 above.  The 
facilitator will submit this information to each of  the panels separately, but on the same day.  
 WT/DS316/R  
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 III. FINAL CLAUSES 
 
16. The facilitator may at any time modify these working procedures, including the timetable,  
after consulting with the parties. 
 
17. The parties may propose to the facilita tor procedures for the protection of business 
confidential information during the present Annex V procedure.  If the parties do so, the facilitator 
will adopt procedures for the protection of business c onfidential information during the course of the 
present Annex V procedure.  The facilitator will be considered a "covered person" for purposes of 
paragraphs II:1, III:1, III:2, VI:2, VI:5, VII:1, V II:2, VIII:1, VIII:2, and VIII:5 of the Rules of 
Conduct, and will be subject to the same obligations  as a panellist under paragraphs IV:1, VI:1(a);  
VI:4(a), VIII:5, and VIII:7.  WT/DS316/R  
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 ATTACHMENT 2  
 
EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES –  
MEASURES AFFECTING TRADE IN LARGE CIVIL AIRCRAFT 
(WT/DS316) 
 
and 
 
UNITED STATES – MEASURES AFFECTING TRADE IN  
LARGE CIVIL AIRCRAFT 
(WT/DS317) 
 
PROCEDURES FOR THE PROTECTION OF BUSINESS CONFIDENTIAL 
INFORMATION AND HIGHLY SENSITIVE BUSINESS INFORMATION 
IN THE PROCEDURE UNDER ANNEX V OF THE SCM AGREEMENT 
 
(4 November 2005) 
  
I. GENERAL 
 
 These procedures do not diminish the rights and obligations of the parties to request and disclose any information within the scope of A nnex V of the SCM Agreement and Article 13 of 
the DSU.   II. DEFINITIONS 
 
1. "Approved Persons"  means: 
 
(a) Representatives or Outside Advisors of a Party, or Employees of the Secretariat, 
when designated in accordance with Se ction IV of these procedures;  and 
 
(b) the Facilitator. 
 2. "Business Confidential Information"  or " BCI"  means any business information that a 
Party  or a Third-country Member has "Designated as BCI" regardless of whether contained in a 
document provided by a public or private body because it is not otherwise available in the public 
domain.  Each Party and Third-country Member shall act in good faith and exercise restraint in 
designating information as BCI, and will endeavor  to designate information as BCI only if its 
disclosure would cause harm to the originators of the information.  3. "Conclusion of the Panel Process"  means the earliest to occu r of the following events: 
 
(a) pursuant to Article 16.4 of the DSU, the Panel report is adopted by the DSB, or the 
DSB decides by consensus not to adopt the report; 
 
(b) pursuant to Articles 16.4 and 17.14 of the DSU, the Appellate Body report is adopted 
and the Panel report is adopted as modified, if at all, by the Appellate Body report; 
  (c) pursuant to Article 12.12 of the DSU, the authority for establishment of the Panel 
lapses;  and 
 WT/DS316/R  
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BCI deleted, as indicated [***] 
 
 
  (d) pursuant to Article 3.6 of the DSU, a mutually satisfactory solution is notified to 
the DSB. 
4. "Designated as BCI"  means:   
 
(a) for printed information, text that is set  off with bold square brackets in a document 
clearly marked with the notation 'BUSINESS CONFIDENTIAL INFORMATION' and with the name of the Party or Th ird-country Member that submitted the 
information;  and 
 
 (b) for electronic information, characters that  are set off with bolded square brackets (or 
with a heading with bolded square bracket s on each page) in an electronic file that 
contains the notation 'BUSINESS CONFID ENTIAL INFORMATION', has a file 
name that contains the letters "BCI", and is stored on a storage medium with a label 
marked 'BUSINESS CONFIDENTIAL INFORM ATION' and indicating the name of 
the Party or Third-country Member that submitted the information.  
 5. "Designated as HSBI" means electronic information in characters that are set off with 
double bolded square brackets (or a heading with do uble bolded square brackets on each page) in an 
electronic file that contains the notation 'H IGHLY SENSITIVE BUSINESS INFORMATION', has a 
file name that contains the letters "HSBI", and is  stored on a storage medium with a label marked 
'HIGHLY SENSITIVE BUSINESS INFORMATION' a nd indicating the name of the Party or 
Third-country Member that submitted the information.  6. "Electronic information"  means any information stored in an electronic form (including but 
not limited to binary-encoded information). 
 
7. "Employee of the Secretariat"  means a person employed or appointed by the Secretariat 
who has been authorized by the S ecretariat to work on the dispute. 
 8. "Facilitator"  means the person designated by the DSB in accordance with paragraph 4 of 
Annex V of the SCM Agreement . 
 
9. "Highly Sensitive Business Information"  or "HSBI" means any business information 
regardless of whether contained in a document provi ded by a public or private body that a Party or 
Third-country Member has "Designated as HSBI" becau se it is not otherwise available in the public 
domain and its disclosure could, in the Party's or  Third-country Member's view, cause exceptional 
harm to its originators.  Each Party and Third-country Member shall act in good faith and exercise the 
utmost restraint in designating information as HSBI.   Each Party and Third-country Member may at 
any time designate as non-BCI/HSBI or as BCI informa tion designated by that Party or Third-country 
Member as HSBI.    (a) The following categories of information may be Designated as HSBI: 
 
(i) information indicating the actual selling or offered price of any large civil 
aircraft (LCA) manufacturer's products or services
1, and, except as provided 
                                                      
1 This category includes (but is not limited to) information on individual LCA prices, prices per seat, or 
information allowing the operating cost per seat of an LCA to be determined, calculated or reflected;  the 
negotiated or offered prices for the airframe;  all concessions offered or agreed to by an LCA manufacturer including financing, spare parts, maintenance, pilot training, asset value and other guarantees, buy back options, 
remarketing arrangements or other forms of credit support .  This category shall also include the actual pricing WT/DS316/R  
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BCI deleted, as indicated [***] 
 
 
 in subparagraph (d)(i) below, any gra phs or other use of the data which 
reflect the movement of prices, prici ng trends or actual prices of an LCA 
model or a family of LCA;  
(ii) information gathered or produced in the context of LCA sales campaigns;  
 
(iii) information concerning market fo recasts, analyses, business plans and 
share/business valuations generate d by LCA producers, consultants, 
investment banks or the European In vestment Bank, with regard to LCA 
products;  or 
 
(iv) information concerning an LCA manufact urer's costs of production, including 
but not limited to data regarding pricing by suppliers. 
 
(b) Each Party may also designate as HSBI other categories of business information that 
is not otherwise available in the public dom ain and the disclosure of which could, in 
the Party's view, cause exceptional harm to its originators.  In case the other Party 
objects to the designation of such informati on as HSBI, the dispute shall be resolved 
by the Facilitator.  If the Facilitator disag rees with designation of information as 
HSBI, the submitting Party may either designate it as BCI, as non-BCI/HSBI or withdraw the information.  The Facilitator shall either destroy such information or 
return it to the submitting Party.  Each Party may at any time designate as 
non-BCI/HSBI or as BCI information previously designated by that Party as HSBI.    
 
(c) Each Party shall Designate as HSBI an y information described in subparagraph (a) 
that pertains to LCA produced by an LCA manufacturer headquartered within the 
territorial jurisdiction of the other Party. 
  (d) The following categories of information may not be Designated as HSBI:    
(i) aggregated pricing data for a particul ar LCA model or family of LCA within 
a particular market that is indexed ( i.e., does not reflect actual prices but 
rather movements in prices off a base of 100 for a particular year).  Such data 
shall be treated as BCI;   
 
(ii) general legal conclusions based on HS BI (e.g., that HSBI demonstrates that a 
producer engaged in price undercutting).  Such conclusions shall be treated as 
neither BCI nor HSBI;   
 
(iii) contracts on the granting of launch aid or reimbursable launch investment and 
project appraisal documents relating thereto, other than information described in subparagraph (a); 
 
(iv) the terms and conditions of loans,  other than information described in 
subparagraph (a);  and 
 
(v) intergovernmental agreements a nd government decisions, other than 
information described in subparagraph (a). 
 
                                                                                                                                                                    
 
information relating to any number of individual LCA offers and prices (including concessions) aggregated by 
model or other category. WT/DS316/R  
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BCI deleted, as indicated [***] 
 
 
 (e) Information may not be Designated as HSBI simply because it is subject to bank 
secrecy or banker-client confidentiality.  
 10. "HSBI Approved Person"  means Approved Persons specifically designated by the Parties 
and the Director-General of the WTO or his desi gnee as having the right to access HSBI (according to 
the procedures laid down in Section IV), as well as the Facilitator.   
 11. "HSBI location"  means a room to be kept locked wh en not occupied and the access to which 
shall be possible only for HSBI Approved Persons, located: 
(a) for the HSBI submitted by the United St ates, the European Communities and any 
Third-country Members, on the premises  of the WTO (Centre William Rappard, 
Rue de Lausanne 154, Geneva, Switzerland); 
 
(b) for HSBI submitted by the United States, on the premises of the United States 
Mission to the European Union in Brussels; 
 
(c) for HSBI submitted by the European Comm unities, on the premises of the Delegation 
of the European Commission to th e United States in Washington; 
 
(d) for HSBI submitted by a Third-country Member, on the premises of its Geneva 
Mission to the WTO, should that Third-country Member so wish. 
 12. "Locked CD"  means a CD-ROM that is not rewritable. 
 13. "Outside Advisor"  means a legal counsel or other advisor of a Party, who: 
 
 (a) advises a Party in the course of the dispute;    
(b) is not an employee, officer or agent of an entity or an affiliate of an entity engaged in 
the manufacture of LCA, the provision of supplies to an entity engaged in the manufacture of LCA, or the supply of air transportation services;  and 
 
(c) is subject to an enforceable code of professional conduct that includes an obligation 
to protect confidential information, or has been retained by another outside advisor 
who assumes responsibility for compliance with these procedures and is subject to such a code of professional conduct.  
 
For purposes of this paragraph, outside le gal counsel representing an LCA producer 
headquartered in the territory of one of the Parties in connection with these proceedings or 
outside consultants who have been retained by such counsel to provide advice with regard to 
these proceedings are not considered agents of an entity listed in  subparagraph (b). 
 
14. "Party"  means the European Communities or the United States. 
 15. "Representative"  means an employee of a Party. 
 16. "Sealed laptop computer"  means a laptop computer having (software and hardware) 
characteristics considered necessary by the submitting Pa rty for protection of that HSBI, provided that 
it has software installed that permits such HSBI  to be searched and printed in accordance with 
paragraph 37.  However, HSBI may not be edited on the sealed laptop computer. 
 WT/DS316/R  
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 17. "Secure site"  means a facility to be kept locked wh en not occupied and the access to which 
shall be possible only for Approved Persons, located:    
(a) in the case of the Facilitator and the Secretariat, on the premises of the WTO 
(Centre William Rappard, Rue de La usanne 154, Geneva, Switzerland); 
 
(b) in the case of the European Communities, th e offices of External Relations Team of 
the Legal Service of the European Commission (Rue de la Loi 200, Brussels, Belgium), the offices of Directorate Gene ral for Trade of the European Commission 
(Rue de la Loi 170, Brussels, Belgium), the offices of the Permanent Delegation of 
the European Communities to the International Organisations in Geneva (Rue du 
Grand-Pré 66, 1202 Geneva, Switzerland), and one additional site specified in 
accordance with subparagraph (d); 
 
(c) in the case of the United States, the offi ces of the General Counsel of the Office of 
the United States Trade Representative (600 17
th Street, NW, Washington, DC, 
USA), the offices of the United States International Trade Commission (500 E Street, S.W., Washington, DC, USA) the Mission of the United States to the World Trade Organization (11, route de Pregny, 1292 Chambésy, Switzerland), and one additional 
site specified in accordance with subparagraph (d);  and 
 
(d) two sites other than a government office that are designated by each Party for use by 
its Outside Advisors;  provided that the iden tity of those sites has been submitted to 
the other Party, the Facilitator, and the othe r Party has not objected to the designation 
of that site within ten days of such submission. 
 
 Any objections raised under  subparagraph (d) may be resolved by the Facilitator. 
 18. "Stand-alone computer"  means a computer that is not connected to a network. 
 19. "Stand-alone printer"  means a printer that is not connected to a network.   
 
20. "Third-country Member"  means Members to whom questi ons have been submitted by the 
Facilitator in accordance with paragraph 3 of Annex V of the SCM Agreement. 
 
III. SCOPE 
 
21. These procedures apply to all BCI and HSBI received by an Approved Person as a result of 
the Annex V procedures.  Unless this Understanding specifically provides otherwise, these procedures 
do not apply to a Party's treatment of its own BCI and HSBI.   22. The Facilitator is  aware that, in order to respond fully to all questions, the United States may 
need to submit information pertaining to United States Special Access Programs, and/or information 
that it internally classifies as "Top Secret", "S ecret", or "Confidential".  Similarly, the 
European Communities may need to submit info rmation that it internally classifies as 
"EU Top Secret", "EU Secret" or "EU Confidentia l".  The Facilitator will to the extent possible 
implement procedures for the protection of such classi fied information in the event that either Party 
informs the Secretariat that it will be submitting such  classified information in the context of the 
present Annex V procedure and has not already designated it as BCI or HSBI.  In such cases, the submitting Party shall propose appropriate procedures for the protection of such classified information.  WT/DS316/R  
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 IV. DESIGNATION OF APPROVED PERSONS 
 
23. At the latest on 11 November 2005, each Part y shall submit to the other Party, and to the 
Facilitator a list of the names and titles of its Re presentatives and Outside A dvisors who need access 
to BCI and HSBI submitted by the other Party an d whom it wishes to have designated as Approved 
Persons for either DS316 and/or DS317, along with any clerical or support staff that would have 
access to the BCI and HSBI.    24. Each Party shall keep the number of Approve d Persons as limited as possible.  Each Party 
may designate no more than a combined total of  20 Representatives and 15 Outside Advisors as 
"HSBI Approved Persons" for both disputes.   25. The Facilitator shall have access to BCI and HSBI .  The Director-General of the WTO, or his 
designee, shall submit to the Parties, and the Facilita tor, a list of the employees of the Secretariat who 
need access to BCI and/or HSBI for each dispute. 
 26. Unless a Party objects to the designation of an Outside Advisor of the other Party or an 
Employee of the Secretariat, the Facilitator sha ll designate those persons as Approved Persons.  A 
Party also may object within ten days of becoming aware of information that was not available to the 
Party at the time of the filing of a list under paragra phs 23 or 25 that would suggest that designation of 
an individual is not appropriate. If a Party object s, the Facilitator shall decide on the objection within 
ten days.    27. An objection may be based on the failure to sa tisfy the definition of "Outside Advisor" or on 
any other compelling basis, including conflicts of interest.   
 
28. The Parties or the Director-General of the WTO, or his designee, may submit amendments to 
their lists at any time, subject to objections for the addition of new Approved Persons in accordance 
with paragraph 27.  
V. BCI  
 
29. To the extent possible, BCI should be submitte d in an exhibit or annex to a response to an 
Annex V question or to a submission.   An entir e response to an Annex V question or an entire 
submission, or significant parts thereof, may be designated as BCI only when necessary.   
 
30. Only Approved Persons may have access to BCI  submitted in each of these proceedings.  
Approved Persons shall use BCI only for the purposes of the Annex V process.  No Approved Person 
shall disclose BCI, or allow it to be disclosed, to  any person except another Approved Person.  The 
Facilitator is entitled to disclose BCI information to the members of each Panel, once these have 
adopted their own procedures on BCI.  
31. A Party shall make no more than one copy of any BCI submitted by the other Party and any 
Third-country Member for each Secure site provided for that Party in paragraph 17. 
 32. BCI submitted pursuant to these procedures shall not be copied, distributed, or removed from the Secure site, except as necessary for submission to  the Panel in accordance with paragraph 5 of 
Annex V of the SCM Agreement. 
 33. Parties may incorporate BCI in internal memoranda for the exclusive use of Approved 
Persons.  Any memorandum and the BCI it contains sh all be marked in accordance with paragraph 4. 
 WT/DS316/R  
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 34. Any document or annex referenced in para graph 33 shall not be copied in excess of the 
number of copies required by the Approved Persons.  All copies of such documents or annexes shall 
be consecutively numbered.  The making of electronic copies shall be avoided whenever possible.  Such documents may be transmitted electronically only by using secure e-mail.  Unless the submitting 
Party agrees otherwise, original documents containi ng the information designated as BCI shall not be 
transmitted electronically, and shall be viewed only on a Stand-alone computer and printed on a 
Stand-alone printer.  If a Party submits to the Facilitator an original document that cannot be 
transmitted electronically, it shall on the day of subm ission deliver a copy of that document to the first 
secure site listed for the other Party in paragraph 17. 
 
35. Approved Persons shall store BCI only in lo cked security containers.  BCI shall be 
appropriately protected against improper inspecti on and eavesdropping when being consulted and will 
be transmitted in sealed heavy duty double envelopes only.  All work papers (e.g., draft submissions, 
worksheets, etc.) containing BCI shall, when no long er needed, be shredded or  burned consistent with 
normal government practice for destroying sensitive documents. 
 
VI. HSBI 
 
36. Unless otherwise provided below, HSBI shall be  subject to all the restrictions in Section V 
applicable to BCI.  
 
37. HSBI shall be submitted to the WTO in electronic form, using locked CDs or two Sealed laptop computers connectable to 19" - 21" monitors.
2  HSBI shall be stored at the HSBI location 
indicated in paragraph 11a) and shall be made available for viewing and use by HSBI Approved 
Persons pursuant to paragraph 39 belo w.  Each Party shall maintain an  additional copy (electronic or 
hard) of the HSBI it submits to the WTO for access by HSBI Approved Persons acting on behalf of 
the other Party in the HSBI location listed in paragr aph 11 located within its territory.  A Stand-alone 
printer may be used to make hard copies of any HSBI.  Such hard copies shall be made on 
distinctively colored paper and marked in accordance with paragraph 5.  Such hard copies shall either 
be stored in a safe at the relevant HSBI location,  or destroyed at the end of the relevant working 
session. 
 
38. Except as otherwise provided in these procedur es, HSBI shall not be stored, transmitted or 
copied either in written or electronic form.  39. HSBI Approved Persons of a Party may view HSBI on the Sealed laptop computer submitted 
by the other Party or, in the case of HSBI subm itted on Locked CDs on a Stand-alone computer, only 
in a designated room at one of the HSBI loca tions indicated in paragraph 11, unless otherwise 
mutually agreed by the Parties. The designated r oom shall be available to  HSBI Approved Persons 
from 9:00 a.m. to 5:00 p.m. during official working da ys at the respective HSBI location, except at the 
location indicated in paragraph 11a) where the room  will also be available during weekends to the 
Facilitator and HSBI Approved Persons designated by the Director-General of the WTO or his 
designee.  HSBI Approved Persons may not bring into that room any electronic recording or 
transmitting devices.  HSBI Approved Persons may not remove HSBI from that room, except in the form of handwritten notes or aggregated information generated on a Stand-alone computer.  In either 
case, such notes or information shall be used exclusiv ely for the individual dispute in connection with 
which the HSBI has been submitted.  Each pers on viewing the HSBI in the HSBI location shall 
complete and sign a log identifying the HSBI that th e person reviewed or, alternatively, such a log can 
be generated automatically.  Each Party shall, for th e HSBI location within its territory referenced in 
paragraph 11, maintain such log until one year af ter the Conclusion of the Panel Process.  Before 
                                                     
 
2 Only Locked CDs may be used for HSBI submitted by a Third-country Member. WT/DS316/R  
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 entering and when leaving the room, Outside A dvisors who are HSBI Approved Persons may be 
subject to appropriate controls.  Viewing of HSBI  at the location indicated in paragraph 11(a) by 
HSBI Approved Persons designated by the Parties shall be conducted under the observation of a WTO 
security guard or employee. 
 
40. No Approved Person shall disclose HSBI to any person except another HSBI Approved 
Person, and then only for the purpose of the specific dispute in which it is being used.  The Facilitator 
is entitled to submit HSBI to each Panel pursuant to  paragraph 5 of Annex V of the SCM Agreement, 
once that Panel has adopted its own HSBI procedures. 
 
41. HSBI may be processed only on Stand-alone co mputers.  Any memorandum or appendix to a 
submission containing HSBI shall not be transmitted  electronically, whether by e-mail, facsimile, or 
otherwise.  
42. All HSBI shall be stored in a safe at the relevant HSBI location. 
VII. RESPONSIBILITY FOR COMPLIANCE 
 
43. Each Party is responsible for ensuri ng that its Approved Persons and designated 
Representatives comply with these procedures to prot ect BCI and HSBI submitted by each Party, as 
well as with enforceable codes of professional conduct  to which its approved persons or other outside 
advisors are subject.  The Secretariat is responsible  for ensuring that its employees comply with these 
procedures to protect BCI and HSBI submitted by a Party or Third-country Member and for adhering 
to the requirements to provide access in the WTO to  Approved Persons and to control the use by 
HSBI Approved Persons when reviewing the materi al in the WTO premises.  The Facilitator shall 
comply with these procedures to protect BCI and HSBI submitted by a Party or Third-country 
Member.   
 
VIII. ADDITIONAL PROCEDURES 
 
44. After consulting with the Parties, the Fac ilitator may apply any other additional procedures 
that he considers necessary to provide additional pr otections to the confidentiality of BCI or HSBI or 
other types of information not explicitly covered by these Procedures.  In the event that the Facilitator 
applies additional procedures or modifies these proce dures as applied in that dispute, the Parties will 
endeavour to obtain adoption of the same procedures in the other dispute.  45. The Facilitator may, with the consent of both Parties, waive any part of these procedures.  
Such "waiver" shall be specifically set forth in wr iting and signed by a representative of both Parties. 
 
IX. RETURN AND DESTRUCTION 
 
46. After the Conclusion of the Panel Process, within a period fixed by the Facilitator, 
the Facilitator, the Secretariat and the Parties (a long with all Approved Pe rsons) shall return all 
documents (including electronic material) or othe r recordings containing BCI to the Party or 
Third-country Member that submitted such docum ents or other recordings.  The Facilitator, 
Secretariat, and the Parties shall destroy and/or re turn any electronic material submitted by a Party or 
Third-country Member that contains HSBI.   
47. The hard drive of all Stand-alone computers and all media used to b ack up such computers 
shall be destroyed at the Conclusion of the Panel Process.  
_______________