WORLD TRADE
ORGANIZATIONWT/MIN(99)/8
22 November 1999
(99-5063)
MINISTERIAL CONFERENCE
Third Session
Seattle, 30 November - 3 December 1999Original:  English
PROPOSED AMENDMENT OF THE
DISPUTE SETTLEMENT UNDERSTANDING
Communication from Canada, Costa Rica, Czech Republic, Ecuador, the European Communities
and its member States, Hungary, Japan, Korea, New Zealand, Norway, Peru,
Slovenia, Switzerland, Thailand and Venezuela
The following communication, dated 16 November 1999, has been received by the Chairman
of the General Council from the Permanent Mission of Japan.
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I have the honour to formally send you herewith1 the "PROPOSED AMENDMENT OF THE
DSU" on behalf of my Government and the Governments of those co-sponsoring the paper.  This
proposal is co-sponsored by the following Member s: Canada, Costa Rica, Czech Republic, Ecuador,
the European Communities and its member States, Hungary, Japan, Korea, New Zealand, Norway,
Peru, Slovenia, Switzerland, Thailand and Venezuela.
It would be appreciated if the attached paper could be circulated as an official WTO
document.
To end, I would just like to say that I believe this paper to be a good basis for consensus and I
would thus like to request you to forward the text to the Ministers in view of a decision at the Seattle
Ministerial Conference.
                                                     
1 Reproduced in the Annex.WT/MIN(99)/8
Page 2
ANNEX
Proposed Amendment of the DSU
1. The following footnote shall be added to the third sentence of paragraph 3 of Article 21 after
the term “reasonable period of time”:
“For purposes of this Understanding, reasonable period of time shall include the time-period
specified under paragraph 7 of Article 4 of the Agreement on Subsidies and Countervailing
Measures.”
2. Paragraph 5 of Article 21 is amended to read as follows:
"During the reasonable period of time, each party shall accord sympathetic consideration to
any request from another party for consultations with a view to reaching a mutually
satisfactory solution regarding the implementation of the recommendations or rulings of the
DSB.”
3. Paragraph 6 of Article 21 is amended to read as follows:
"6. (a) The DSB shall keep under surveillance the implementation of adopted
recommendations or rulings.  The issue of implementation of the recommendations or rulings
may be raised at the DSB by any Member at any time following their adoption.
“(b) The Member concerned shall report on the status of its implementation of the
recommendations or rulings of the DSB at each DSB meeting,2 where any Member may raise
any point pertaining thereto, beginning 6 months after the date of adoption of the
recommendations or rulings of the DSB, until the parties to the dispute have mutually agreed
that the issue is resolved or until the DSB finds pursuant to Article 21 bis that the Member
concerned has complied. At least 10 days prior to each such DSB meeting, the Member
concerned shall provide the DSB with a detailed written status report concerning its progress
in the implementation of the recommendations or rulings.
"(c)(i)Upon compliance with the recommendations or rulings of the DSB the Member
concerned shall submit to the DSB a written notification on compliance.
"(ii)If the Member concerned has not submitted a notification under subparagraph
(c)(i) by the date that is 20 days before the date of expiry of the reasonable period of
time, then not later than that date the Member concerned shall submit to the DSB a
written notification on compliance including the measures that it has taken, or the
measures that it expects to have taken by the expiry of the reasonable period of time.Where the notification refers to measures that the Member concerned expects to have
taken, the Member concerned shall submit to the DSB a supplementary written
notification no later than the expiry of the reasonable period of time, stating that it
has, or has not, taken such measures, and indicating any changes to them.
“(iii)Each notification under this subparagraph shall include a detailed description as
well as the text of the relevant measures the Member concerned has taken.  The
notification requirement of this subparagraph shall not be construed to reduce the
reasonable period of time established pursuant to paragraph 3 of Article 21. ”
                                                     
2 The parties to the dispute may agree to waive this requirement for a particular DSB meeting.WT/MIN(99)/8
Page 3
4. The following new Article shall be inserted after Article 21:
“Article 21bis
Determination of Compliance
“1. Where there is disagreement between a complaining party and the Member concerned
as to the existence or consistency with a covered agreement of measures taken to comply with
the recommendations or rulings of the DSB, su ch disagreement shall be resolved through
recourse to the dispute settlement procedures provided for in this Article.3
“2. A complaining party may request  the establishment of a compliance panel referred to
in paragraph 6 of this Article at any time after:4
“(i) the Member concerned states that it does not need a reasonable period of timefor compliance pursuant to paragraph 3 of Article 21;
“(ii) the Member concerned has submitted a notification pursuant to paragraph
6(c) of Article 21 that it has complied with the recommendations or rulings of the
DSB; or
“(iii) ten days before the date of expiry of the reasonable period of time;
whichever is the earlier.  Such request shall be made in writing.
“3. While consultations between the Member concerned and the complaining party are
desirable, they are not required prior to a request for a compliance panel under paragraph 2.
“4. When requesting the establishment of a compliance panel, the complaining party
shall identify the specific measures at issue and provide a brief summary of the legal basis of
the complaint, sufficient to present the problem clearly.  Unless the parties to the compliance
panel proceeding agree on special terms of reference within 5 days from the establishment of
the compliance panel, standard terms of reference in accordance with Article 7 shall apply to
the compliance panel.
“5. The DSB shall meet 10 days after such a request unless the complaining party
requests that the meeting be held at a later date. At that meeting,
5 the DSB shall establish a
compliance panel, unless the DSB decides by consensus not to establish such a panel.
“6. (a) The compliance panel shall consist of:
“(i) the members of the original panel, where the report of the original
panel had not been appealed,6 or
                                                     
3 This is without prejudice to the right of the parties to have recourse to normal dispute settlement
procedures under this Understanding or to the procedures under Article 5 or Article 25.
4 A compliance panel may also be established pursuant to paragraph 9 of Article 22.
5 In the case of a compliance panel established pursuant to paragraph 9 of Article 22, the DSB shall
establish the compliance panel at the meeting requested by the Member concerned pursuant to that paragraph.
6 In the case of a compliance panel established pursuant to paragraph 9 of Article 22, the DSB shall
establish the compliance panel at the meeting requested by the Member concerned pursuant to that paragraph.WT/MIN(99)/8
Page 4
“(ii) the members of the Appellate Body that considered the appeal, where
the report of the original panel had been appealed.7
“(b) A compliance panel composed pursuant to paragraph 6 (a)(ii) may seek
information or advice from the original panel concerning the facts of the case, the
procedural history of the case, or legal issues that were not appealed.  The compliance
panel shall provide the parties to the compliance panel proceeding the opportunity toreview and comment on any such information or advice.
“7. The compliance panel shall circulate  its report to the Members within 90 days of the
date of its establishment.
“8. The party requesting the establishment of a compliance panel shall not request
authorization to suspend concessions or other obligations under paragraph 9 of this Articleuntil the compliance panel has circulated its report to the Members.
8
“9. (a) On or after the date of circulation of the report of the compliance panel, any
party to the compliance panel proceeding may request a meeting of the DSB to adopt the
report, and the DSB shall meet 10 days after such a request unless the party requesting themeeting requests that the meeting be held at a later date.  At that meeting, the compliance
panel report shall be adopted by the DSB and unconditionally accepted by the parties to the
compliance panel proceeding unless the DSB decides by consensus not to adopt the report.  A
report of a compliance panel pursuant to this Article is not subject to appeal.  This adoption
procedure is without prejudice to the right of Members to express their views on a compliancepanel report.
“(b) If the compliance panel report finds that the Member concerned has failed to
bring the measure found to be inconsistent with a covered agreement into compliance
therewith or otherwise comply with the recommendations or rulings of the DSB in the disputewithin the reasonable period of time, then:
“(i) The Member concerned shall not be entitled to any further period of time for
implementation following adoption by the DSB of the compliance panel’s report; and
“(ii) After circulation of the compliance panel report, a complaining party that was
a party to the compliance panel proceeding may request authorization from the DSB
to suspend the application to the Member concerned of concessions or other
obligations under the covered agreements pursuant to Article 22.  The DSB shall
grant authorization to such request only after the adoption of the report of the
compliance panel.
“10. The compliance panel shall establish its own working procedures. The provisions of
Articles 1 through 3, 8 through 14 (other than  paragraph 5 of Article 8), 18, 19, 21.1, 21.2,
21.7, 21.8, 23, 24, 26 and 27.1 of the DSU shall apply to compliance panel proceedings
except to the extent that (i) such provisions are incompatible with the time frame provided in
this Article, or (ii) this Article provides more specific provisions.”
                                                     
7 If any member of the compliance panel composed pursuant to paragraph 6(a)(i) is not available, the
Director-General shall appoint a replacement within 5 days after the date of establishment of the compliance
panel, unless the Director-General has been requested not to do so by the parties to the compliance panelproceeding.
8 This paragraph does not apply in the case of a compliance panel established pursuant to paragraph 9
of Article 22.WT/MIN(99)/8
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5. Paragraph 2 of Article 22 shall be amended to read as follows:
“2. If:
“(i) the Member concerned does not inform the DSB pursuant to paragraph 3 of
Article 21 that it intends to implement the recommendations or rulings of the DSB;
“(ii) the Member concerned does not submit within the required time period a
notification pursuant to paragraph 6(c) of Article 21 stating that the Member
concerned has complied; or
“(iii) the compliance panel report pursuant to Article 21 bis finds that the Member
concerned has failed to bring the measures found to be inconsistent with a coveredagreement into compliance therewith or otherwise comply with the recommendations
or rulings of the DSB; then
a complaining party may request authorization from the DSB to suspend the application to the
Member concerned of concessions or other obligations under the covered agreements. Ameeting of the DSB shall be convened for this purpose 10 days after the request, unless the
complaining party requests that the meeting be held at a later date.
9  The parties to the dispute
are encouraged to consult before the meeting to discuss a mutually satisfactory solution.”
6. Paragraph 6 of Article 22 shall be amended to read as follows:
“6.  (a) When a complaining party has made a request for authorization to suspend
concessions or other obligations pursuant to paragraph 9 of Article 21 bis or paragraph 2 of
this Article, the DSB shall grant authorization to such request at the meeting requested by the
complaining party unless the DSB decides by consensus to reject the request.  However, if the
Member concerned objects to the level of suspension proposed, or claims that the principlesand procedures set forth in paragraph 3 have not been followed where a complaining party
has requested authorization to suspend concessions or other obligations pursuant to paragraph
3(b) or (c), the matter shall be referred to arbitration.
“(b) Such arbitration shall be carried out by the original panel, if its members are
available.  The Director-General shall determine whether the members of the original panel
are available.
10  If any members of the original panel are not available, and the parties to the
arbitration do not agree on a replacement, at the request of any party the Director-General
shall appoint a replacement arbitrator11 within 5 days after the matter is referred to the
arbitration, after consulting with the parties to the arbitration.
“(c) The arbitration shall be completed and the decision of the arbitrator shall be
circulated to Members within 45 days after the  referral of the matter.  The complaining party
shall not suspend concessions or other obligations during the course of the arbitration.”
                                                     
9 In the case of paragraph 2 (ii) above, such DSB meeting shall not be convened before the expiry of
the reasonable period of time.
10 In order to avoid delay, the Director-General shall make this determination sufficiently in advance of
the DSB meeting at which the matter is to be referred to arbitration.
11 The expression "arbitrator" shall be interpreted as referring either to an individual or a group.WT/MIN(99)/8
Page 6
7. In paragraph 7 of Article 22:
A footnote12 shall be added at the end of the first sentence.
8. Article 22 is amended by inserting the following paragraph after paragraph 8.  The existing
paragraph 9 shall be renumbered as paragraph 10.
“9. (a) After the DSB has authorized the suspension of concessions or other
obligations pursuant to paragraph 6 or 7 of this Article, the Member concerned may request a
termination of such authorization on the grounds that it has eliminated the inconsistency or
the nullification or impairment of benefits under the covered agreements identified in the
recommendations or rulings of the DSB.  The Member concerned shall include with any such
request a written notice to the DSB describing in detail the measures it has taken, providing
the text of the relevant measures, and requesting a meeting of the DSB.  The DSB shall meet20 days after such a request unless the Member concerned requests that the meeting be held at
a later date.  At such meeting the DSB sha ll withdraw the authorization for suspension of
concessions and other obligations unless the DSB decides by consensus not to withdraw the
                                                     
12 *To this end, the arbitrator shall first determine the level of nullification and impairment.  The
complaining party shall provide sufficient trade information and data to enable the arbitrator to determine suchlevel. The complaining party shall then, with due respect to paragraph 3 of Article 22, identify the concessionsor other obligations it intends to suspend and shall submit a detailed proposal to the arbitrator consistent with thelevel of nullification and impairment determined by the arbitrator. The arbitrator shall examine and decidewhether the proposed level of suspension is equivalent to the level of nullification and impairment determinedby the arbitrator.  The  detailed proposal shall serve as the basis of the authorization by the DSB.  Any time afterthe authorization by the DSB, upon request from the complaining party, the arbitrator shall examine theconsistency with the arbitration of any modification the complaining party intends to make on the suspension ofconcessions or other obligations authorized by the DSB and inform promptly the DSB of its views.  Then, theDSB shall upon request, grant authorization to modify the suspension of concessions or other obligations wherethe request is consistent with the initial decision of th e arbitrator, unless the DSB decides by consensus to reject
the request.
OR
*To this end, the arbitrator shall first determine the level of nullification and impairment.  The
complaining party shall provide sufficient trade information and data to enable the arbitrator to determine suchlevel.  The complaining party shall then, with due respect to paragraph 3 of Article 22, identify the concessionsor other obligations it intends to suspend and shall submit a detail proposal to the arbitrator consistent with thelevel of nullification and impairment determined by th e arbitrator.  The arbitrat or shall examine and decide
whether the level of suspension reflected by the detailed proposal is equivalent with the level of nullification andimpairment determined by the arbitrator.  The determina tion by the arbitrator shall serve as the basis of the
authorisation by the DSB.  The complaining party’s re quest for DSB authorisation shall be accompanied by a
list of concessions or other obligations it seeks to suspend.  After authorisation by the DSB, the complainingparty shall not depart from the list of concessions or other obligations on which authorisation was granted unlessboth parties agree or except in the case of  adaptations of a technical nature.  Any time after the authorisation by
the DSB, upon request from a party to the dispute, the arbitrator shall examine the consistency with the initialdetermination of the arbitrator of any intended adaptation of a technical nature to the list of suspension ofconcessions or other obligations authorised by the DSB and inform promptly the DSB of its decision.  The DSBshall then upon request, grant authorisation to adapt the list of suspension of concessions or other obligationswhere the request is consistent with the decision of th e arbitrator, unless the DSB decides by consensus to reject
the request".
*Two different versions of this footnote are proposed.  Some of the delegations are able to support
either of the two versions and some others are only able to support one of these versions.WT/MIN(99)/8
Page 7
authorization, or unless the complaining party objects to such withdrawal, in which case
subparagraph (b) shall apply.
“(b) Where there is disagreement between a complaining party and the Member
concerned as to the existence or consistency with a covered agreement of measures taken tocomply with the recommendations or rulings of  the DSB in the dispute, such disagreement
shall be resolved through recourse to the dispute settlement procedures provided for in Article
21bis.  If the compliance panel finds that the measures taken to comply are not inconsistent
with a covered agreement and comply with the recommendations or rulings of the DSB in the
dispute, then on or after the date of circulation of the report of the compliance panel, the
Member concerned may request a meeting of the DSB to withdraw the authorization for the
suspension of concessions or other obligations.  The DSB shall meet 10 days after such arequest unless the Member concerned requests that the meeting be held at a later date.  At
such meeting the DSB shall withdraw the authorization for suspension of concessions and
other obligations unless the DSB decides by consensus not to do so.
13
“(c) The complaining party shall not maintain the suspension of concessions and
other obligations after the DSB withdraws the authorization.”
9. In paragraph 7 of Article 4, the numeral “60” shall be deleted wherever it occurs and the
numeral “30” shall be inserted in its place.  Insert at the end of this paragraph the following footnote:
“Where one or more of the parties is a developing country  Member, the time period
established in paragraph 7 of Article 4 shall, if the parties agree, be extended by up to 30
days.   Any other Member shall accord sympathetic consideration to a request by a developing
country Member for such an extension.”
10. Paragraph 1 of Article 6 shall be amended to read as follows:
“1. If the complaining party so requests, the DSB shall establish a panel at the meeting at
which the request first appears as an item on the DSB's  agenda, unless the DSB decides byconsensus not to establish a panel.”
The existing footnote to Article 6.1 shall be retained at the end of paragraph 1.
11. Paragraph 12(a) of Appendix 3 shall be amended to read as follows:
“(a) Receipt of first written submissions of the parties:
(1) complaining party: ____ 3-4 weeks
14
(2) party complained against: ____ 4-5 weeks”
12. In Appendix 3, the following paragraph shall be  inserted following paragraph 10.  Paragraphs
11 and 12 shall be renumbered as 12 and 13 respectively.
“11. The descriptive part of the panel report shall include a brief summary of the facts and
the procedural history of the case.  The documents submitted by the parties and third parties
to the panel shall be attached to the panel report, except for certain factual confidential
information designated as such by the disputing party that submitted it.15 "
                                                     
13 The DSB shall not consider the request for the withdrawal of the authorization for the suspension of
concessions until after it has adopted the report of the compliance panel.
14 Up to 6 weeks if the complaining party is a developing country Member.
15 Documents of an administrative or procedural natu re, annexes, and exhibits  need not be attached.WT/MIN(99)/8
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13. Paragraph 1 of Article 15 shall be deleted and paragraphs 2 and 3 of Article 15 shall be
renumbered as paragraphs 1 and 2.  In the first sentence of the present paragraph 2 of Article 15, the
first sentence shall be amended to read as follows:
“2. The panel shall issue an interim report to the parties, including the descriptive
sections and the panel’s findings and conclusions.”
14. Present paragraph 2 of Article 15 shall be amended by deleting therefrom the sentence “At the
request of a party, the panel shall hold a further meeting with the parties on the issues identified in the
written comments.”
15. The following conforming changes on time frames need to be made in light of the other
changes in the text.
"Present paragraph 12 of Appendix 3 shall be amended as follows:
"(1) Items (e) and (f) shall be deleted and the following items redesignated accordingly."(2) Item (g) (prior to redesignation) shall be amended by deleting “2-4 weeks” and inserting
"4-8 weeks".
"(3) Item (h)(prior to redesignation)shall be amended by deleting “1 week” and inserting “10
days”
"(4) Item (i)(prior to redesignation) shall be deleted and the following items redesignated
accordingly.
"(5) Item (j) (prior to redesignation)shall be amended by deleting “2 weeks” and inserting “10
days”
"(6) Item(k) (prior to redesignation)shall be amended to be  to read as follows:
“(k) Circulation of the final report to the Members: ____ 3 days”Based on a total reduction of time (up to approximately 47 days), the time frames in Article
20 (the reference to "nine months" and to "12 months"), the periods in 21.4 (the reference to
"15 months" and to "18 months") shall be reduced by one month.
16. A new paragraph 13 will be added to Article 3:
“Any time period in this Understanding shall be extended by mutual agreement of the parties
to the proceeding concerned.”
17. Paragraph 3 of Article 10 shall be amended to read as follows:
“3. Each third party shall receive a copy of all documents or information submitted to the
panel, at the time of submission, except for certain factual confidential information designated
as such by the disputing party that submitted  it, and except for any submission following the
interim panel report.
16  Without prejudice to paragraph 2 of this Article, a third party may
observe any of the substantive meetings of the panel with the parties, except for portions of
sessions when such factual confidential information is discussed.”
                                                     
16 Documents of an administrative or pro cedural nature need not be provided.WT/MIN(99)/8
Page 9
18. The following sentence shall be added after current paragraph 6 of Appendix 3.
“In establishing the working procedures to be followed the panel may take into consideration
any special circumstances of a third party that are closely related to the matter under dispute.”
19. In paragraph 2 of Article 18 and in paragraph 3 of Appendix 3, the last sentence of each of
these paragraphs shall be amended to read as follows:
“Each party and third party to a proceeding shall also, if requested by a Member, provide a
non-confidential summary of the information contained in its submissions that could be
disclosed to the public, no later than 15 days after the date of either the request or the
submission, whichever is later, or such other deadline as is agreed by the party and the
requesting Member.”
20. In paragraph 10 of Article 4, the word “should” shall be deleted and the word “shall” shall be
inserted in place thereof.
21. In paragraph 2 of Article 21, the word “should” shall be deleted and the word “shall” shall be
inserted in place thereof.
22. Paragraph 6 of Article 3 shall be amended by inserting the following footnote after the word
“notified”:
“It is the obligation of both parties to notify any mutually agreed solution promptly and in no
event more than two months after the solution is agreed.  The notification shall describe the
terms of the mutually agreed solution related to  the WTO obligations in sufficient detail to
enable other Members to understand and evaluate it.”
23. The footnote numbers in the current DSU shall be renumbered according to the insertion of
the new footnotes in this text.
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