RESTRICTEDWORLD TRADE
ORGANIZATIONWT/DSB/M/83
7 July 2000
(00-2795)
Dispute Settlement Body
7 June 2000
MINUTES OF MEETING
Held in the Centre William Rappard
on 7 June 2000
Chairman:  Mr. Stuart Harbinson (Hong Kong, China)
1. United States – Imposition of countervailing duties on certain hot-rolled lead and
bismuth  carbon steel products origin ating in the United Kingdom
(a) Report of  the Appellate Body (WT/DS138/A B/R) and Report of the Panel (WT/DS138/R)
1. The Chairman drew attention to the communi cation from the Appellate Body contained in
document WT/DS138/8 transmitting the Appellate Body Report on "United States – Imposition of
Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in
the United Kingdom", which had been circulated in document WT/DS138/AB/R in accordance with
Article 17.5 of the DSU.  In accordance with the Decision on Procedures for the Circulation and
Derestriction of WTO Documents contained in  document WT/L/160/Rev.1, both Reports had been
circulated as unrestricted documents.  He recalled that Article 17.14 of the DSU required that:  "An
Appellate Body report shall be adopted by the DS B and unconditionally accepted by the parties to the
dispute unless the DSB decides by consensus not to adopt the Appellate Body report within 30 days
following its circulation to Members.  This adoption procedure is without prejudice to the right of
Members to express their views on an Appellate Body report."
2. The representative of the European Communities said that the EC welcomed the Appellate
Body Report, which had upheld the Panel's findings that the imposition of countervailing duties by the
United States was inconsistent with the provisions of the Agreement on the Subsidies and
Countervailing Measures (SCM). The Appellate Body had confirmed that in conducting a
countervailing duty investigation concerning a firm that was privatized or otherwise changedownership, one had to examine whether, during the investigation period, a benefit had accrued to that
firm.  Therefore, the United States could not continue its present practice of irrefutably presuming that
subsidies granted before the change of ownership "passed through" to the current producer of the
product concerned.  The Appellate Body had also confirmed that where a firm was privatized or
otherwise changed ownership for fair market valu e, prior subsidies conferred no benefit to the
successor company.  It  was now up to the United States to change its countervailing duty practice to
prevent this situation from arising in future inves tigations and reviews, and to promptly review the
large number of outstanding countervailing duty orders which involved pre-privatization subsidies, in
order to bring them into conformity  with the Appellate Body's findings.
3. A number of steps were required to this end and the first step could be taken immediately.
Although the United States had terminated its measures on the lead and bismuth steel from the United
Kingdom, there was an outstanding countervailing duty order on cut-to-length carbon steel plate from
the United Kingdom.  The United States had imposed that measure in July 1993 and, onWT/DSB/M/83
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29 March 2000, the US Department of Commerce (the US Department) had concluded, in the
framework of a sunset review, that the alleged subsidization would continue.  The company involved
was British Steel plc. the same that had been subject to measures in the Lead and Bismuth case.  The
alleged subsidies as well as the circumstances of the privatization were the same.  The Appellate Body
had found that British Steel plc. (now Corus) had received no subsidy.  Therefore, the United Statesshould terminate the proceeding immediately.
4. The next step concerned the outstanding countervailing orders on other EC privatized
companies.  The EC would soon enter into consulta tions with the United States on a number of these
cases, which all involved subsidies granted prior to privatizations at a fair market value.  In none of
these cases, had the United States examined whether a benefit had accrued to the firms concerned nor
had it taken into account the nature of privatization.  In the light of the Appellate Body report, the
United States had to do this now.  The EC looked  forward to a prompt review of the measures in
question to be carried out on this basis.  Finally, the United States would have to change its
countervailing practices to ensure that its methodology used with regard to lead and bismuth could not
be repeated in the future.  The EC looked forw ard to a good faith implementation of this important
ruling to avoid unnecessary litigation in the future.
5. The EC considered that the way the Appellate Body had dealt with the issue of amicus curiae
briefs was not entirely satisfactory.  The Appellate Body had made it clear that individuals and
organisations that were not WTO Members had no legal right to make submissions to, or to be heard
by, the Appellate Body and that the Appellate Body did not have the legal authority to accept or
consider unsolicited amicus curiae  briefs submitted by non-WTO parties.  Nevertheless, the Appellate
Body had concluded that it had the legal authority under the DSU to accept and consider amicus
curiae  briefs in an appeal in which it found it pert inent to do so.  However, the Appellate Body did
not provide any guidance under what circumstances it might find it pertinent to consider amicus
curiae briefs nor how this would be reflected in its Working Procedures.
6. The representative of the United States said that her country had always implemented the
DSB's recommendations promptly and in good faith.  It should not come as a surprise that the
United States was disappointed with the Panel and Appellate Body Reports and that it fundamentally
disagreed with their contents.  It remained the US view that subsidies did not disappear simply
because the ownership of a subsidized firm changed and the new owner paid a fair market value for
the subsidized assets that it had acquired.  The United States did not wish to engage in a re-argument
of the substantive issues in this case.  However, it was compelled to comment on one aspect of the
analysis of Reports which involved systemic concerns.
7. In the proceedings, the United States had demonstrated that if the Panel's findings were
allowed to stand, Members could easily circumvent  the remedies authorized by the SCM Agreement
against subsidies that caused injury.  The United States had referred to a situation in which a
government that invested £1 billion to build a steel facility which, due to market conditions, was
worth only £400 million based on the income stream that the facility was to be able to generate.
Immediately after the facility was built, the govern ment decided to sell it to a private entity that
agreed to pay what the facility was worth:  i.e. £400 million.  Since the private purchaser paid only
£400 million for a facility that would have cost it  £1 billion to build on its own, the company was able
to compete with lower prices for its steel because it s cost was artificially lower.  However, according
to the Panel and the Appellate Body, this effective gift of at least £600 million could not be
countervailed because the private purchaser had paid what the facility was worth.  In the US view, thiswas an absurd outcome which undermined one of the objectives and purposes of the SCM Agreement,
namely, to provide a remedy against government subsidies that distorted trade.  Because the outcome
was so absurd, it raised very serious questions about the validity of the Panel's interpretative analysis.
However, the United States was in particular concerned that the Appellate Body had not addressed
that argument at all.  The credibility of the dispute settlement system would be affected, ifWT/DSB/M/83
Page 3
fundamental arguments were not addressed or interpretations that undermined the basic objectives of
an agreement were adopted.
8. However, there was one positive aspect of the Appellate Body Report, namely, its finding that
the Appellate Body had the authority to take into account submissions by interested private parties,
so-called amicus  curiae  briefs.  By allowing affected private parties to present their views in WTO
appeals, the Appellate Body had taken a positive step towards making the WTO more open and
enhancing public confidence in the dispute settlement process.  The possibility to make amicus curiae
submissions in an appeal built on the possibility to do so at the panel level.  This seemed to have
worked well and the same should be true at the appeal level.  As her delegation had noted in the
Appellate Body proceeding, the United States was c onfident that the Appellate Body was fully able to
adopt procedures for amicus  curiae submissions so as to benefit from them without unduly burdening
the system or the parties.  The United States, therefore, welcomed the Appellate Body's findings onamicus curiae  submissions.
9. The representative of Mexico said that his country had participated in the dispute at hand as a
third party due to its interest in ensuring that the provisions of the SCM Agreement were being
applied properly.  In Mexico's view, the Panel had correctly concluded that the three administrative
reviews carried out by the United States and the resulting countervailing duties were inconsistent withArticle 10 of the SCM Agreement.  The manner in which the Panel and the Appellate Body had
interpreted the concept of "benefit" was particularly sound.  Nevertheless, Mexico believed that a
conclusion on Article 19.4 of SCM Agreement would have considerably added to the security and
predictability of the multilateral trading system.  Mexico particularly welcomed the Panel's suggestion
in paragraph 8.2 of its Report that the United States take "… all appropriate steps, including a revisionof its administrative practices, to prevent the aforementioned violation of Article 10 of the SCM
Agreement from arising in the futu re".  This would allow other companies to benefit from the
outcome of this case.
10. With regard to the submission of amicus curiae  briefs by entities not related to the WTO, the
Appellate Body had rightly observed that the pa rticipation in panels or the Appellate Body
proceedings was reserved exclusively to WTO Members, and specifically to the parties and third
parties to a dispute.  On this basis, the Appellat e Body had correctly stated in paragraph 41 of its
Report that "… individuals and organizations, which are not Members of the WTO, have no legal
right  to make submissions to or to be heard by the Appellate Body".  However, the authority granted
to the Appellate Body under Article 17.9 of the DSU should not be seen as a way to legitimize such
submissions.  Had the Appellate Body accepted the so-called amicus curiae  submissions that would
have affected the rights of Members, in particular the rights of parties and third parties, arising fromthe covered agreements and the DSU, which prevailed over the working procedures of the Appellate
Body.  The outcome of this case was beneficial to the WTO and would encourage efforts being made
by Members, in particular developing-country Members, towards privatization.
11. The representative of Canada said that his delegation wished to comment on the preliminary
procedural matter decided upon by the Appellate Body with respect to amicus curiae  briefs.  The
Appellate Body had stated that it had the legal authority under the DSU to accept and consider
amicus curiae  briefs in an appeal in which it found it "pertinent and useful to do so"(paragraph 42 of
the AB Report).  The Appellate Body had pointed th at Article 17.9 of the DSU provided that working
procedures should be drawn up by the Appellate Body  in consultation with the DSB Chairman and the
Director-General.  The Appellate Body had stated that Article 17.9 made it clear that it had broadauthority to adopt procedural rules which did not conflict with any rules and procedures of the DSU
and the covered agreements.  The Appellate Body had concluded that as long as it acted consistently
with the provisions of the DSU and the covered agreements, it had the legal authority to decide
whether or not to accept and consider any information it believed to be pertinent and useful in an
appeal.  Canada had a number of concerns about the Appellate Body's ruling on this issue.WT/DSB/M/83
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12. First, Canada questioned whether the general authority under Article 17.9 of the DSU to draw
up working procedures provided a sufficient legal basis for the Appellate Body to accept and consider
amicus curiae  briefs.  Second, the Appellate Body had provided no guidance as to when, in future
cases, it would be prepared to accept and consider amicus curiae  briefs.  Third, by explicitly
recognizing that it had to act consistently with the DSU provisions, the Appellate Body seemed tohave precluded its consideration of amicus curiae  briefs that contained new facts, or that sought to
re-argue issues of facts already decided by the Panel.  To do otherwise would contravene Article 17.6
of the DSU, which limited the jurisdiction of the Appellate Body to issues of law.  However, the
Appellate Body's reasons did not specifically addr ess whether it could consider factual information
contained in an amicus curiae  submission.  The Appellate Body's decision on this critical issue was
more than a matter of procedure.  It highlighted the need for Members to decide and clarify, in the
DSU rules, whether amicus curiae  briefs should be permitted and, if so, under what conditions.
Canada was aware that the issue of amicus curiae  briefs raised many complex and controversial issues
which could not be resolved at the present meeting.  Those issues were of systemic concern and, as
such, should only be addressed by Members.
13. The representative of Japan said that his country had serious concerns with regard to the
Appellate Body's interpretation of the treatment of amicus curiae  briefs.  Japan had expressed its
position on this issue at the DSB meeting on 6 November 1998 upon adoption of the Panel and the
Appellate Body reports in the Shrimp case.1  That position had not changed since then.  In the Report
before the DSB, the Appellate Body had argued that "as long as we act consistently with the
provisions of the DSU and of the covered agreements, we have the legal authority to decide whether
or not to accept and consider any information that we believe is pertinent and useful in an appeal"(paragraph 39 of the AB Report).  As a legal basis for its argument, the Appellate Body had only
referred to Article 17.9 of the DSU and in Japan's view that was not convincing.  The issue of the
treatment of amicus curiae  briefs should be decided by Members, possibly through the clarification of
the current DSU provisions.  He regretted that the Appellate Body repeatedly made findings on this
controversial issue without taking into consideration the opposite view expressed by many Members.
14. The representative of Argentina said that his country also wished to express its view on the
systemic issue of the Appellate Body's decision concerning its authority to accept and consider amicus
curiae briefs submitted in an appeal.  The Appellate Body had recognized that the authority to accept
and consider amicus curiae  briefs was not specifically provided  for in the DSU nor in the Working
Procedures for Appellate Review.  However, the Ap pellate Body had concluded that its authority was
covered by the authority to adopt rules granted to it under Article 17.9 of the DSU. Argentina did not
share the Appellate Body's interpretation thereon.  First, it was not clear that the procedural ruleestablished in this case was authorized by the DSU.  The dispute settlement system established
intergovernmental procedures and the authority to accept and consider unsolicited briefs submitted by
individuals or organizations, not Members of th e WTO, could distort the character of dispute
settlement procedures.  Access to the WTO dispute settlement procedure was restricted to WTO
Members and panels, and the Appellate Body only had a duty to consider submissions from parties orthird parties in a given dispute.  The authority to accept and consider amicus curiae  briefs appeared
less justified if one took into account the fact that an appeal had to be limited to issues of law covered
in panel reports and to legal interpretations develo ped by panels.  Furthermore, recognition of the
authority to accept amicus curiae  briefs raised a number of doubts over the rights of Members that
were neither parties nor third parties in a dispute.  The question was whether those Members had theright to make voluntary submissions that might be accepted and considered by panels or the Appellate
Body.  If not, this would entail that they would ha ve less rights than individuals or organizations that
were not Members of the WTO.  Argentina believed that recognition of the authority to accept and
consider amicus curiae  briefs raised many complex problems.  Furthermore, the interpretation made
by the Appellate Body exceeded its authority to establish working procedures for Appellate Review.
                                                     
1 WT/DS58WT/DSB/M/83
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15. The representative of Hong Kong, China said that the dispute under consideration raised a
number of systemic issues that deserved Members' attention and examination. Hong Kong, China was
concerned about the Appellate Body's view on the question of amicus curiae  briefs (paragraphs 36-42
of the AB Report).  In paragraph 42, the Appellate Body had stated:  "We are of the opinion that we
have the legal authority under the DSU to accept and consider amicus curiae  b r i e f s  i n  a n  a p p e a l
proceedings in which we find it pertinent and us eful to do so."  The Appellate Body's view was
legally unsound and practically problematic.  To justify its claim, the Appellate Body had relied upon
its interpretation of Article 17.9 of the DSU.  However, that Article concerned only procedures for
Appellate Review and allowed the Appellate Body to draw up its working procedures under certain
constraints.  Therefore, the issues to be considered in this context had to be procedural.  However, the
acceptance by the Appellate Body of amicus curiae  briefs was not a procedural but a substantive
matter.  It affected the inter-governmental character of the WTO as well as Members' rights and theobligations.  It  might also affect the Appellate Body rulings in other cases.  Therefore, Article 17.9 of
the DSU and, by extension, the Working Procedures for Appellate Review were not applicable to
substantive issues.  Moreover, the acceptance of amicus curiae  briefs by the Appellate Body was not
explicitly provided for in the DSU nor had it been envisaged during the negotiations of the DSU.  The
unilateral expansion by the Appellate Body of its legal authority, which went beyond the DSU, was
not only an act of judicial activism but also a violation of the amendment provisions under Article X:8
of the WTO Agreement.  Furthermore, the acceptance of a brief which contained factual information
was contrary to the letter and spirit of Article 17.6 of the DSU.  The Appellate Body's view was
practically problematic and was not a model of clarity.  The only criterion put forward by the
Appellate Body to distinguish which briefs to accept or not was to state "in which we find it pertinentand useful to do so".  However, the question was what could be considered to be useful.  The
Appellate Body had refused to bind its discretion, which it should not have, ex ante,  in this respect.
Member were thus left with some uncertainty.  Moreover, if the Appellate Body accepted what the
Panel had previously rejected, it would take its decision on an evidentiary basis which did not
correspond to that of the Panel.  Hong Kong, Chin a reiterated that the Appellate Body's view on the
question of amicus curiae  briefs was legally unsound and practically problematic.
16. The representative of Hungary said that his delegation wished to make comments on the issue
of acceptance of amicus curiae  briefs by the Appellate Body.  This was without prejudice to
Hungary's consistently open-minded position on whether or not amicus curiae  submissions should be
accepted in dispute settlement proceedings.  Hungary was concerned about the approach taken by the
Appellate Body on this issue.  In  Hungary's view, that issue went beyond a question of procedure.  It
affected the intergovernmental character of the dispute settlement mechanism and, as such, itconstituted an issue of substance with far-reaching implications.  It was up to Members to decide on
this matter.  Hungary was also concerned that the Ap pellate Body in taking its decision that it had the
legal authority to decide as to whether or not to accept and consider amicus  curiae  briefs, had not
elaborated on the criteria for its decision.  Members were, therefore, left without any guidance with
regard to future cases and this was a systemic problem.
17. The representative of India said that although his country had not participated as a third party
in the dispute at hand, it wished to comment on two systemic issues.  First, India noted with
satisfaction that the Appellate Body had reiterated its earlier decision that the standard of review in
Article 17.6 of the Anti-Dumping Agreement (ADA) was only relevant to the ADA.  In this case, the
Appellate Body had ruled more specifically that the standard of review provided for in Article 17.6 of
the ADA was not applicable to the SCM Agreement.  India believed this was a good and timely
contribution of the Appellate Body to the multilateral trading system.
18. With regard to the issue of acceptance of amicus curiae  briefs, India continued to have
serious reservations on the approach taken by the Appellate Body. India was not convinced that the
DSU permitted, by not prohibiting, panels and the Appellate Body to consider amicus curiae briefs.
Such an interpretation was resulting in a situation in which not only non-governmental voluntaryWT/DSB/M/83
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organisations, but also powerful business associations, like in this dispute, would be able to intervene
in the dispute settlement process.  This was not a good development for the long-term functioning of
the dispute settlement system, which was meant to be a mechanism for the resolution of disputes
between Members.  India believed that this was not merely a procedural but rather substantive matter.
India was also surprised about the analysis contai ned in paragraph 39 of the Appellate Body Report.
There was no provision in the working procedures, which had been drawn up by the Appellate Body
in consultation with the Chairman of the DSB and the Director-General of the WTO and
communicated by the Appellate Body to the Members, that enabled the Appellate Body to accept
amicus curiae  briefs.  The Appellate Body had argued that neither the DSU nor the working
procedures explicitly prohibited acceptance or consideration of such briefs.  In India's view, this
approach was completely against the basis on whic h the DSU had been negotiated.  India questioned
whether in any system it was possible to list all the prohibitions in order to prevent a situation faced inthis case.  India considered that an approach which was not explicitly prohibited and was permitted on
a discretionary basis, might not be consistent with the predictability and security of a rule-based
system.
19. The representative of the Philippines said that his country shared and supported the concerns
expressed by previous speakers with regard to paragraph 42 of the Appellate Body Report.  In
accordance with the Appellate Body, the DSU and the Working Procedures for Appellate Review did
not contain any provisions in regard to acceptance of amicus curiae briefs.  The Appellate Body had
also stated that it had the authority to draw up procedures for Appellate Review.  In paragraph 40 of
its Report the Appellate Body had stated:  "We wish to emphasize that in the dispute settlement
system of the WTO, the DSU envisages participation in panel and Appellate Body proceedings, as a
matter of legal right, only by parties and third parties to a dispute."  The Philippines supported this
statement.  In the context of the WTO, the righ t to participate in dispute settlement proceedings
implied the opportunity to be heard.  However, that right did not mean that a panel or the Appellate
Body would have to accept arguments made by part ies.  In paragraph 40 of its Report, the Appellate
Body had also stated that only Members had a legal right to participate and to be heard in a dispute.However in paragraph 42 the Appellate Body had made a different argument and had conferred itself
the authority to accept and consider submissions if it found it pertinent and useful to do so.  The
Philippines believed the Appellate Body had acted inconsistently with the DSU because Members had
clearly specified or limited as to who had the opportunity to be heard.  In that sense, the Appellate
Body had exercised the prerogatives of Members and should not be encouraged to continue to do so.
20. Although the Appellate Body coul d draw up procedures for Appe llate Review, it could not do
so as it went along.  He asked whether in drawing up its working procedures in the case at hand, theAppellate Body had consulted the DSB Chairman and the Director-General and if those procedures
had been communicated to Members, as provided for in Article 17.9 of the DSU.  The Appellate
Body should have also kept in mind that the issue of amicus curiae briefs had been taken up in the
context of the DSU Review and was among those issues which were considered to be controversial.
At that time no Member had claimed that the issue of amicus curiae briefs was part of the WTO law.
Members still had to decide thereon.  The Appellate Body should have taken into account the fact that
Members still had to discuss whether and under what circumstances amicus curiae  briefs could be
accepted.  Therefore, the Appellate Body's decision to accept amicus curiae briefs had again
pre-empted the powers of Members.  The Philippi nes took exception with regard to paragraph 42 of
the Appellate Body Report.
21. The representative of Brazil said that his country wished to comment on the issue of amicus
curiae briefs and the implications of the Reports for US countervailing duty proceedings involving
other Members.  He recalled that Brazil, which had participated as a third party in the dispute at hand,
had objected to the possibility of the Panel or the Appellate Body accepting amicus curiae briefs.
Brazil joined previous speakers who had expressed their concerns about the way the Appellate BodyWT/DSB/M/83
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had dealt with this issue.  The Appellate Body should be informed by the Chairman of the DSB of
Members' views regarding its decision on amicus curiae briefs.
22. He noted that like the British steel producer subject to the proceedings in question, Brazil's
largest steel producers had also been privatized in the early and mid-1990s.  Like steel exports from
the United Kingdom, steel exports from Brazil had also been subject to US countervailing duties overthe past decade, based on the US presumption that subsidies conferred to a company prior to its
privatization somehow "passed through" to the purchaser of a company.  This presumption had now
been found by the Panel and the Appellate Body to be inconsistent with the SCM Agreement.  The
Panel had recommended that the United States bring its countervailing duty practice on privatized
companies into conformity with the SCM Agreement.  By recognizing that the inconsistencies in the
United States practice were not specific to the dispute at hand, but actually tainted all countervailing
duties investigations involving privatized co mpanies, the Panel had recommended that the
United States take "all appropriate steps, including a revision of its administrative practices" to
prevent future violations of the SCM Agreement.  The Panel's recommendation was intended to
obviate the need for Members subject to the US  practice to bring their cases under the dispute
settlement system.  The Panel and Appellate Body decisions, pursuant to Article 3.2 of the DSU, had
clarified the existing provisions of the SCM Agreement.   As a result, in order for the United States to
be in conformity with its obligations under the SCM Agreement all its countervailing duties decisions
had to conform to the Panel's recommendations.  The United States had to examine the analysis that
supported its current application of countervailing duties to imports from Brazil, and from other
Members, so as to ensure that it conformed with the Panel and the Appellate Body decision.  There
were no legal or procedural barriers to delay a US decision to swiftly and comprehensivelyincorporate the Panel's recommendations into its countervailing duties practice.  No changes to the US
law or to its pertinent regulations were necessary because the United States had never integrated its
privatization practice into its countervailing duties regulations.  As a result, there was no justification
for the United States to delay putting its prac tice into conformity with the Panel's decision.
Ultimately, a revision of US practice would remove import restrictions on several steel productsoriginating from Brazil as they were based exclusively on the countervailing duties analysis that had
been found to be invalid.  In adopting the Panel's recommendations, Brazil hoped that the United
States would reiterate its commitment to the integrity of the dispute settlement system.  He noted that
in light of the Panel and the Appellate Body findings , Brazil was considering all options available to it
under the multilateral framework of the WTO.
23. The representative of Malaysia said that he only wished to comment on the issue of amicus
curiae briefs.  He did not wish to repeat the argument s as to why the Appellate Body had gone beyond
its legal authority.  Malaysia took great exception to paragraph 42 of the Appellate Body Report and
shared the concerns expressed by previous speakers with respect to the Appellate Body's view that it
had the legal authority under the DSU to accept and consider amicus curiae briefs.  At the DSB
meeting on 6 November 1998, upon adoption of the Panel and the Appellate Body reports in the
Shrimp case, Malaysia, along with other delegations, had raised its concern about the AppellateBody's interpretation of Article 13.1 of the DSU regarding the word "seek" and the acceptance of
amicus curiae briefs by panels and the Appellate Body.  In the case at hand, the Appellate Body had
not only repeated but had further compounded that mistake.  It was clear that the Appellate Body had
chosen to ignore the views of Members in this regard.  There was a need to resolve this issue and
Malaysia would act accordingly at the appropriate tim e and place.  Malaysia wished to register its
strong exception with regard to paragraph 42 of the Appellate Body Report.
24. The representative of Pakistan expressed his delegation's concern with regard to the Appellate
Body's opinion on amicus curiae briefs as contained in paragraph 42 of its report.  Like other
delegations, in Pakistan's view the arguments ma de by the Appellate Body in order to accept amicus
curiae briefs were not well-founded and, as such, they were inconsistent with the DSU.  The
Appellate Body's reference to Article 17.9 of the DSU, did not convince Pakistan as well as otherWT/DSB/M/83
Page 8
Members.  Pakistan did not share the Appellate Body's argument.  Pakistan considered that amicus
curiae briefs should not be accepted or considered by panels and much less by the Appellate Body
whose authority was limited to issues of law in accordance with Article 17.6 of the DSU.  The
Appellate Body should not be encouraged to go beyond the authority granted to it by the DSU.
Pakistan wished to register its serious concerns about paragraph 42 of the Appellate Body Report.
25. The representative of Ecuador expressed his delegation's concern regarding the Appellate
Body's decision to accept and consider amicus curiae briefs.  The Appellate Body's decision went
against the letter and spirit of the DSU and was counter to the balance that should be preserved.  The
Appellate Body's decision was not only inconsiste nt with the DSU but also ran a risk of causing
damage to developing countries, in particular to those that had limited resources to participate actively
in the DSB's proceedings.  In Ecuador's view, the difficult situation of developing countries would
further deteriorate if their scarce resources were to be spent to examine and react to amicus curiae
briefs that the Appellate Body considered to be relevant to an appeal, even when such briefs were
unsolicited.
26. The representative of Australia said that it was clear from the statements made by previous
speakers that the ways in which panels and the Appellate Body had approached amicus curiae briefs
was a very important issue with systemic implications for the rights of Members in the disputesettlement process.  Australia, therefore, considered that it would be useful for Members to discuss the
issues involved, including what rules might be agreed for appropriate handling of submissions by
non-WTO Members.
27. The representative of Thailand said that like previous speakers, in particular Malaysia and the
Philippines, his country wished to express its concern with regard to the way in which the Appellate
Body report had dealt with the issue of amicus curiae briefs.  In Thailand's view, this was a
substantive and not merely a procedural issue is which affected Members' rights and obligations.  The
Appellate Body's position created a situation of uncertainty with regard to the basis of a review,
factual or otherwise, by the Appellate Body in a given case.  A number of Members wished to avoid
such a situation and had repeatedly expressed their views in the DSB in relation to the Shrimp case aswell as in the DSU review.  The Appellate Body had taken its position on this issue in spite of
Members' views and on the basis of a legal reasoning that was not convincing.  Thailand hoped that its
concerns would be heard and taken into account.
28. The representative of India recalled that the Philippines had sought information as to whether
the Chairman of the DSB and the Director-General had been consulted by the Appellate Body on the
issue of acceptance of amicus curiae  briefs, in accordance with Article 17.9 of the DSU.  In this
context and based on the discussion in the DSB in 1995, it had been agreed that whenever theAppellate Body consulted the DSB Chairman on pr ocedures, the Chairman would, in turn, consult
Members because under Article 17.9 of the DSU, the Chairman should be consulted in his official
capacity;  i.e. on behalf of Members.  He asked the Chairman to confirm India's understanding.
29. The Chairman said that it would not be appropriate for him to respond at the present meeting
to the questions raised by the Philippines and India.  Some careful study of the Appellate Body
wording would be required to see the extent to which it relied totally and directly on Article 17.9 of
the DSU.  He asked the Secretariat to consult its records to see whether there had been consultation
with the Director-General or with the previous Chairman of the DSB.  He believed that the questions
raised were legitimate and it was his intention to revert to them.
30. The representative of India said that he did not have any problem with the fact that the matter
had to be examined.  He only wished the Chairman to be aware that the matter had been discussed in
the DSB in 1995.  He asked whether the Chairman, at an appropriate time, could confirm India's
understanding thereon.WT/DSB/M/83
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31. The Chairman said that it was his recollection, as confirmed by the Secretariat, that India's
understanding was correct.  Therefore, there was no need for further research on the point in relation
to the reference to the Chairman of the DSB acting on behalf of Members and not in his personal
capacity.
32. The representative of the Philippines said that he had raised three questions in relation with
the matter under consideration:  (i) whether the Chairman of the DSB had been consulted on behalf of
Members?;  (ii) whether the Director-General had been consulted?;  and (iii) whether information had
been communicated to Members?
33. The representative of the United States said that her delegation noted the questions raised by
the Philippines and India.  The United States believed that it was not accurate to state that no
delegation in the DSU review had thought that amicus curiae briefs were allowed under the current
DSU.  On the contrary, the United States was one of those delegations who had recognized thatamicus curiae  submissions were allowed under the DSU.  The United States had made known its
position on this matter which had been discussed at length.  Therefore, the point made by the
Philippines that the Appellate Body had pre-empted this issue was not correct.  In the DSU review
Members had focused on the question of how to make amicus curiae submissions more operational
under the current DSU rather than whether or not amicus curiae could be submitted.  With regard to
Article 17.9 of the DSU, the United States referred Members to Rule 16(1) of the Working Procedures
for Appellate Review .  However, the concerns expressed by delegations at the present meeting
pointed out to the need that this issue required further consultations.
34. The representative of the Philippines said that the issues relating to amicus curiae briefs, as
discussed in the DSU review, were only proposals on how to modify rather than interpret the WTO
Agreement.  These included the proposal by the United States.
35. The DSB took note of the statements, and adopted  the Appellate Body Report in
WT/DS138/AB/R and the Panel Repo rt in WT/DS138/R, as upheld by the Appellate Body Report.
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