WT/DS353/R 
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ANNEX E 
  
SELECTED RULINGS OF THE PA NEL CONCERNING BCI/HSBI  
PROCEDURES AND THEIR APPLICATION 
 
 
Contents Page 
Annex E-1 Communication of 4 June 2007 E-2 
Annex E-2 Communication of 9 July 2007 E-6 
Annex E-3 Communication of 16 July 2007 E-7 
 WT/DS353/R 
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ANNEX E-1 
  
COMMUNICATION OF 4 JUNE 2007 
  
United States – Measures Affecting Trade in Large Civil Aircraft 
 
(Second Complaint) (DS353)  
  
1. The Panel has carefully considered the lette r from the European Communities ("EC") dated 
23 April 2007, responding to the comments of the United States ("US") concerning designation of 
certain BCI and HSBI. In support of its approach to the designation of information as HSBI, the EC 
draws a distinction between (a) information sought to be protected, and (b) documents that reveal 
such information.  According to the EC, the BCI/H SBI Procedures are concerned with the former, and 
support for this proposition can be found in paragrap h 8 of the BCI/HSBI Procedures which refers to 
"information ... regardless of whether contained in a document...".  The EC contends therefore that 
"publicly available documents may be classified as HS BI if their disclosure (particularly in light of 
the context in which they are disclosed) would re veal business information not in the public domain 
that, in the view of the Party submitting the in formation, could cause exceptional harm to its 
originators."
1  From this, the Panel understands the EC to be arguing that the "information" which 
may be protected as BCI or HSBI under the BCI/HSBI Procedures extends beyond information imparted directly in the content of a particular te xt or speech and comprehends more indirectly the use 
made of a particular document or u tterance, or the context in which a particular document or utterance 
is obtained, communicated, made or reproduced.   
2. Paragraph 2 of the BCI/HSBI Procedures defines BCI as "any business information that a 
Party or Third Party has 'Designated as BCI' regard less of whether contained in a document provided 
by a public or private body because it is not otherwise available in the public domain".   Paragraph 8 
of the BCI/HSBI Procedures, defines HSBI as "any business information regardless of whether contained in a document provided by a public or pr ivate body that a Party or Third Party has 
'Designated as HSBI' because it is not otherwise available in the public domain  and its disclosure 
could, in the Party's or Third Party's view, cause excep tional harm to its originators."  It is clear that a 
common feature of both BCI and HSBI is that the in formation so designated is not otherwise in the 
public domain.  The EC interprets the concept of "information" which may be designated as BCI and 
HSBI under the BCI/HSBI Procedures in a broad manner.  Such interpretation leads to the result that, 
notwithstanding the clear requirement in both para graphs 2 and 8 that information in the public 
domain cannot be designated as BCI or HSBI, it would nonetheless be possible to designate information which is in the public domain as BCI or HSBI where one can derive from that 
information other "information" (in a more abstract sense) which is distinct from the information that 
is in the public domain.  We do not consider this  to be a reasonable interpretation of the BCI/HSBI 
Procedures.  The Panel considers that the "information" with which the BCI/HSBI Procedures is 
concerned is information which is explicitly communicated in a document,
2 as opposed to 
"information" concerning the use being made of a particular document3 in the context of the present 
dispute, or "information" as to how a particular document4 came into the possession or knowledge of 
one of the Parties.  The Panel considers that this is  evident from a reading of paragraphs 2 and 8 of the 
BCI/Procedures in conjunction with terms "Designated as BCI" and "Designated as HSBI" in 
                                                      
1 EC Letter dated 23 April 2007, p. 3. 
2 Or electronic file or oral statement. 
3 Or electronic file or oral statement. 
4 Or electronic file or oral statement.  WT/DS353/R 
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paragraphs 4 and 5, respectively, of the BCI/HSBI Pr ocedures.  Paragraphs 4 and 5 refer to the means 
of designating information as BCI and HSBI, respectiv ely.  These paragraphs refer to "information" 
that is in printed form, electronic form or spoken form and clearly show that the BCI/HSBI 
Procedures were intended to apply to sp ecific sensitive information appearing within  a document or 
electronic file, or revealed in the course of speech.  
1. The fact that a document is being used by the EC in the context of this dispute 
3. In relation to the specific issues for determina tion by the Panel, the Panel notes that the EC 
argues as follows (italics in original, underlining added): 
"In particular, the information  being protected through the HSBI designation is the 
identity of the airlines  involved in the sales campai gns selected by the European 
Communities as evidencing lost sales, displacement and impedance, and price 
suppression within the meaning of Article 6.3 of the SCM Agreement .  While it is true 
that publicly available documents provide  certain information regarding these 
campaigns, the fact that campaigns involving these airlines are being used by the 
European Communities to demonstrate lost sales, displacement and impedance, and 
price suppression is not information in the public domain.   It is therefore necessary to 
classify even publicly available documents related to these sales campaigns as HSBI in order to protect the fact that they ar e being used by the European Communities in 
the context of this dispute ."5 
4. It follows from the view we have expressed in paragraph 2 that the Panel does not agree with 
the EC that "the fact that {a document is} being used by the European Comm unities in the context of 
this dispute" in and of itself is the information  which the BCI/HSBI intends to protect – be it as BCI 
or HSBI. It is obvious that the fact the EC is us ing a particular document in this dispute is not 
"information in the public domain". In fact, unless a part y elects to publicly disclose the fact that it is 
using certain documents as evidence in s upport of its claims in a dispute, it is always  the case that the 
identity of the documents being used by a party in  an ongoing dispute is confidential – that is, 
information not in the public domain.6 If the EC's argument were correct, it would result in a party 
being free to designate any document in this dispute as BCI or HSBI unless it voluntarily elects to 
disclose the fact that it is using a specific documen t in this dispute. Moreover, to accept the EC's 
arguments on this issue would be tantamount to classifying a core part of its case as HSBI.  We do not consider that the BCI/HSBI Procedures were  intended to lead to such a result.  
2. Documents obtained on an informal and confidential basis 
5. The EC has also sought to (i) designate as HSBI various presentations made by Boeing 
executives to particular airline clients in the contex t of sales campaigns, which have been shared with 
Airbus by those airlines on condition of anonymity ; and (ii) designate as BCI presentations made by 
Boeing  at airline conferences which have been shar ed with Airbus by conference organizers on 
condition of anonymity.  According to the EC, "the information  that the European Communities is 
trying to protect, by classifying these documents as BCI  and HSBI is that Airbus is in possession of 
these documents and that certain airline executives or conference organisers have provided these documents to Airbus."   
6. In relation to the information it has sought to designate as HSBI, the EC argues that such 
information constitutes "information gathered or pr oduced in the context of LCA sales campaigns" 
within the meaning of subparagraph 8(a)(ii) of the BCI/HSBI Procedures.  In addition, the EC argues 
that failure to designate these documents as HSBI  in their entirety (including the titles of the 
                                                     
 
5 EC Letter of 23 April 2007, p. 4. 
6 DSU Article 14.1 WT/DS353/R 
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documents) could cause exceptional harm to Airbus and to the airlines and airline executives that 
provided the documents to Airbus if Boeing were to  learn that these documents had been provided to 
Airbus by the airlines concerned.  
7. In relation to the Boeing presentations at airlin e conferences, which the EC has designated as 
BCI, the EC contends that if these documents were not classified as BCI in th eir entirety, the identity 
of the conference organizers who provided these docum ents to Airbus would be readily apparent and 
this disclosure would cause harm to Airbus as well as to the conference organizers in question.  
8. The Panel understands that the EC is in effect arguing that the fact of how it obtained the 
document/information is the "information" it seeks to protect under the BCI/HSBI Procedures. It 
follows from the views we have expressed in paragra ph 2 that the Panel rejects this argument. As the 
Panel stated in its communication of 16 April 2007: 
"The Panel considers that the standard  for determining whether {information 
contained in Boeing documents} is BCI or HSBI relates to the possibility of harm to the "originator" of the information, which in this case is Boeing, in the event of 
disclosure.  In our view, the originator of a document is entitled, through appropriate 
channels, to waive BCI or HSBI status where it believes that disclosure of the 
information would not cause the requisite ha rm, or where it is prepared to accept such 
harm.  The Panel has, at the very least, strong doubts about how it could be that it 
would be consistent with fundamental fairness for it to rely on documents originated by a private party where that private part y was unaware that those documents were 
even before the Panel (let alone their cont ent) because they were designated as BCI or 
HSBI by the other party." 
3. Exhibit EC-15 
9. The EC has sought to defend its designation of exhibit EC-15 as BCI in its entirety on a 
somewhat different basis.  Exhibit EC-15 compri ses an analysis, conducted by Airbus aeronautical 
engineers, of alleged links between various NAS A research and development programs and specific 
Boeing civil aircraft programs.  Concerning exhibit EC-15, the EC states as follows (underlining 
added): 
"Second, disclosure of any portion of exhibit EC-15, including its conclusions, would 
cause harm to Airbus. As this is a st udy conducted by Airbus’ engineering 
department, it provides valuable insights in to the extent of Airbus’ aeronautical 
engineering expertise, for it is that very  expertise that provides the basis for the 
study’s conclusions.   Indeed, a Boeing engineer examining this study would be able 
to ascertain from it how far advanced Airbus’ knowledge is with respect to the wide variety of aeronautics technologies covered by the study."
7   
10. The Panel notes that the conclusions of any expe rt analysis are necessarily based, at least in 
part, on the subjective knowledge of the expert, and that such conclusions are therefore inherently 
revelatory of that expert's subjective state of knowledge. However, it is clear from the approach 
outlined by the Panel in paragraph 2 that it is incu mbent on the EC to specifica lly identify the Airbus 
aeronautical engineering expertise, or other Air bus technological information or know-how that is 
explicit in the document itself.   
                                                      
7 EC Letter of 23 April 2007, p. 8.    WT/DS353/R 
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4. Concluding remarks 
11. The Panel clarifies that the views we have expressed above do not mean that the documents 
the EC is seeking to protect can be made public by the US.  As the parties are well aware, panel 
deliberations are confidential.  
12. In the light of the above, the Panel directs the EC to submit, by Monday 11 June , properly 
bracketed versions of all the para graphs and exhibits raised by th e US – including paragraphs 717 and 
1361 of the EC submission, which the US identified in footnote 3 of its 10 April letter.  In so doing, the EC is directed to perform the re-bracketing in accordance with the Panel's understanding of the 
HSBI/BCI Procedures as outlined ab ove, as well as indicated in our communication dated 16 April.  
13. Other than paragraphs 717 and 1361, the EC n eed not resubmit the body (i.e. the 678 page-
document) of the submission at this time.  The Pane l has noted that the EC stated as follows in its 
letter: 
"The European Communities is willing to  re-designate the name and number of 
exhibit EC-15 as non-BCI in the citations throughout its first written submission."
8 
The Panel will inform the EC in due course when it must submit a revised version of the body of the 
submission.   
 14. Unless
 the EC makes changes to the text of the specific exhibit/paragraph, the Panel requests 
the EC to submit the re-bracketed exhibits a nd paragraphs (i.e. Annexes) in a BCI version.9 
 
 
_______________ 
 
 
                                                      
8 Page 8 of the 23 April EC letter. 
9 That is, the Panel does not, for example, expect the EC to upload the re-bracketed ex hibits onto the 
HSBI laptop.  Needless to say, the EC  is allowed to redact all information which it deems as HSBI from the BCI 
version.   WT/DS353/R 
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ANNEX E-2 
 
COMMUNICATION OF 9 JULY 2007 
 
 
United States – Measures Affecting Trade in Large Civil Aircraft  
(Second Complaint) (DS353)  
 
 
The Panel confirms receipt of the letter and the documents submitted by the European Communities 
("EC") on 18 June, which were submitted in response to the Panel's ruing dated 4 June on the issue of 
bracketing of certain information.  The Panel has also noted the comments of the United States on this 
issue in its cover letter of the submission made on 6 July.  As the parties will recall, this issue was 
triggered by the comments of the United States ("US "), dated 10 April, on the non-BCI version and on 
the Redacted Version Appendix submitted by the EC on 3 April.  
 The Panel hereby suggests that the revised versi on submitted by the EC on 18 June be deemed as the 
basis of the non-BCI version to be serviced to the Third Parties. The Panel requests the EC to service 
the non-BCI version (i.e. with information between  brackets being deleted) by close of business on 
10 July .  
 
In addition, in accordance with paragraph 32 of the BCI/HSBI Procedures
1, the Panel proposes that 
the attached procedures be followed in order fo r Third Parties to access BCI in the parties' 
submission. The Panel requests that the parties submit comments, if any, on the attached draft procedures by close of business 11 July . The Panel understands that once the parties agree on the 
procedures, the revised BCI version of the body of the submission and the revised Redacted Version 
Appendix submitted from the EC on 18 June is the document that the Third Parties will be granted 
access at this point of time. The Panel understands that Third Parties will not be granted access to the 
"BCI exhibits". 
 
 
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1 "Additional Working Procedures For DS353 – Procedures for the Protection of Business Confidential 
Information and Highly Sensitive Business Information".  WT/DS353/R 
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ANNEX E-3 
  
COMMUNICATION OF 16 JULY 2007 
  
United States – Measures Affecting Trade in Large Civil Aircraft 
 
(Second Complaint) (DS353)  
  
 The Panel informs the Parties and Third Partie s that it has amended,  after consulting the 
parties, the BCI/HSBI Procedures1 as attached in accordance with the original paragraph 322 of the 
BCI/HSBI Procedures.3   
 
 In accordance with paragraph 32 and paragraph 37 bis(d) of the amended BCI/HSBI 
Procedures, the Panel invites Third Parties to submit, if they so wish, the following information to the Panel as well as to the Parties and other Third Parties by close of  business of 18 July 2007 .  
 
• A list of the names and titles (including aff iliation) of any Representatives and Outside 
Advisors (including clerical or support staff) who need access to Party-BCI and whom it wishes to have designated as Third Party BCI Approved Persons.  (Please note that no more 
than 5 persons can be designated.) 
 
• The identity of the "specific room" (including the address and the room number) in which the 
locked "security container", as referred to in paragraph 37 bis(c) of the amended BCI/HSBI 
Procedures, is located. (Please note that onl y one "specific room" can be designated.) 
 Once the above information is submitted from Thir d Parties, the Panel invites the Parties to 
submit any objections based on paragraph 32 bis of the amended BCI/HSBI Procedures by close of 
business of 20 July 2007 .  
 
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1 "Additional Working Procedures For DS353 – Procedures for the Protection of Business Confidential 
Information and Highly Sensitive Business Information".  
2 This paragraph has been amended in the attached latest version. See Panel's communication dated 
19 February 2007 for the original wording of this paragraph. 
3 Changes are highlighted in the a ttachment for ease of reference.