WORLD TRADE
ORGANIZATIONTN/DS/W/42
24 January 2003
(03-0400)
Dispute Settlement Body
Special SessionOriginal:  English
TEXT FOR THE AFRICAN GROUP PROPOSALS ON DISPUTE SETTLEMENT
UNDERSTANDING NEGOTIATIONS
Communication from Kenya
The following communication, dated 16 January 2003, has been received from the Permanent
Mission of Kenya on behalf of the African Group.
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I. CONFLICT BETWEEN PROVISIONS AND AGREEMENTS
Article 3.2 should be amended by adding the following:
When, in the course of proceedings before a panel or the Appellate Body, a question arises on
whether or not there is a conflict between pr ovisions of any covered Agreement or between
any covered Agreements, the panel or Appellate Body shall refer the matter to the General
Council for a determination.  In reaching the determination, the General Council may
exercise the authority conferred under paragraph 2 of Article IX of the WTO Agreement.
II. MEASURES WITHDRAWN BEFORE, OR IN THE COURSE OF,
CONSULTATIONS
Article 3.6 of the DSU should be amended by renaming the current provision as
paragraph (a) –  as amended – and adding the following paragraphs:
(b) Developed-country Members that adopt measures against developing or least-
developed country Members and withdraw them in the course of consultations or 90 days
before the commencement of consultations pursuant to Article 4 of this Understanding shall
notify them individually or jointly to the DSB within 60 days of their withdrawal.  The
notification shall, describe the measure and the reason or circumstances for the withdrawal,
state whether consultations were held and finalised, and indicate the amount of injury to thedeveloping or least-developed country Member resu lting from the measure.  Disputes over the
amount of injury may be referred to arbitration under Article 25 of this Understanding.
(c) Where injury has resulted from the withdrawn measure, and if the developing or
least-developed country Member so requests, the DSB may recommend monetary and anyother appropriate compensation taking into account the nature of injury suffered.  The level
of compensation shall be determined by arbitration in accordance with Article 25 of this
Understanding and shall be implemented muta tis mutandis in accordance with Articles 21
and 22.TN/DS/W/42
Page 2
(d) The requests referred to in paragraph (c) may be made at the meeting of the DSB
considering the notification of the withdrawn measures or subsequently within a period of
60 days, unless there are exceptional circumstances justifying the consideration of the request
at a later date .
III. DEVELOPMENT PERSPECTIVE IN THE TERMS OF REFERENCE
Article 7 should be amended by adding paragraphs 4 and 5 as follows:
4. Where a developing or least-developed country Member is a party to any dispute
under this Understanding, the panels, in consulta tion with relevant development institutions
where necessary, shall consider and make specific findings on the development implications
of the issues raised in the dispute and shall specifically consider any adverse impact thatfindings may have on the social and economic welfare of the developing or least-developed
country Member.  The DSB shall fully take those findings into account in making its
recommendations and rulings.
5. This Understanding is an important mechanism for achieving the development
objectives of the WTO Agreement.  Accordingly, the findings of the panels and the Appellate
Body, and the recommendations and rulings of the DSB shall fully take into account the
development needs of developing and least-developed country Members.  The General
Council shall review this Understanding ever y five years in order to consider and adopt
appropriate improvements to ensure the achiev ement of the development objectives of the
WTO Agreement.
IV. THIRD PARTIES
Article 10 should be amended by adding the following to paragraph 2:
For purposes of developing and least-developed country Members, the term “substantial
interest” shall be interpreted to include, any amount of international trade; trade impact on
major domestic macro-economic indicators su ch as employment, national income, and
foreign exchange reserves; the gaining of expertise in the procedural, substantive, and
systemic issues relating to this Underst anding; and protecting long-term development
interests that any measures inconsistent with covered agreements and any findings,
recommendations and rulings could affect.
Article 10 should be further amended by replacing paragraph 3 with the following:Third parties shall receive all the documentation relating to the dispute from the parties,
other third parties, and the panel without prejudice to the provisions of paragraph 2 ofArticle 18.  Third parties, if they request, shall have a right to attend the proceedings and to
be availed the opportunity to put written and oral questions to the parties and other third
parties during the proceedings.
Article 17.4 should be amended by replacing it with the following:4. The parties to the dispute may appeal a panel report.  Third parties in the panel
proceedings, if they request, shall have a right to attend the proceedings and have an
opportunity to be heard and to make written submissions to the Appellate Body.  Their
submissions shall also be given to the parties to the dispute and shall be reflected in theAppellate Body report.TN/DS/W/42
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V. THE RIGHT TO SEEK INFORMATION
Article 13 should be amended by adding the following as paragraph 3:
3. For purposes of this Article, “the right to seek information and technical advice”
shall not be construed as a requirement to receive unsolicited information or technicaladvice.
VI. SEPARATE OPINIONS OF PANELISTS AND APPELLATE BODY MEMBERS
Article 14.3 should be amended by replacing it with the following:
3. Each panelist shall deliver a fully reasoned, separate written opinion stating clearly
the party which has prevailed in the dispute.  Where two or more panelists are in agreement,they may decide to provide a joint opinion.  The majority opinion shall be the decision of the
panel.
Article 17.11 should be amended by replacing it with the following:
11. Appellate Body members shall each deliver a fully reasoned, separate written opinion
stating clearly the party which has prevailed in the dispute.  Where two or more members are
in agreement, they may decide to provide a joint opinion.  The majority opinion shall be the
decision of the Appellate Body.
VII. DEVELOPMENT PERSPECTIVE IN THE IMPLEMENTATION OF
RECOMMENDATIONS AND RULINGS
Article 21.2 should be amended by adding the following:
In this regard, notwithstanding any finding of inconsistency of measures with a covered
agreement, the DSB, if requested by the developing-country Member and fully taking into
account the findings of the panel or Appellate Body, as well as the reports of relevant
development institutions where appropriate, on the development implications of the issues
raised in the dispute, may recommend arbitration in accordance with Article 25 for purposes
of drawing up an adjustment programme unde r which the developing-country Member will
gradually implement the recommendations and rulings.
VIII.  MONETARY COMPENSATION AND COMPUTATION OF INJURY
Article 21.8 should be amended by adding the following:
Further, if the case is one brought by a developing-country Member against a developed-
country member, the DSB may recommend monetary and other appropriate compensationtaking into account the injury suffered.  The quantification of injury and compensation shall
be computed as from the date of the adoption of the measure found to be inconsistent with
covered agreements until the date of its withdrawal.
IX. COLLECTIVE ENFORCEMENT OF RECOMMENDATIONS AND RULINGS
Article 22.6 should be amended by renaming the current provision as paragraph (a) and
adding the following paragraphs (b), (c) and (d):TN/DS/W/42
Page 4
(b) The following principles and procedures shall apply to requests for collective
suspension of concessions under paragraph (c):
(i) Before making such a request, the developing or least-developed country
Member shall refer the matter to arbitration for determination of the level ofnullification and impairment, which shall be done taking into account the legitimate
expectations of the developing or least-developed country Member.  The arbitration
shall further take into account any impediment to the attainment of the development
objectives of the WTO Agreement as further elaborated by the developing or least-
developed country Member.
(ii) The arbitration shall consider whether suspension of concessions or other
obligations in other sectors by the developing or least-developed country Member
would be appropriate to effectively encourage the withdrawal of the measure found to
be inconsistent with a covered Agreement, taking into account possible effects on that
developing or least-developed country Member.
(iii) Where the DSB grants authorisation to Members to suspend concessions or
other obligations under paragraph (c), the level of suspension for each Member
authorized shall be such as to secure, full compensation for the injury to the
developing or least-developed country Member, the protection of its development
interests, and the timely and effective im plementation of the recommendations and
rulings.
(c) Where the case is one brought by a developing or least-developed country Member
against a developed-country Member and the situation described in paragraph 2 occurs, and
in order to promote the timely and effective implementation of recommendations and rulings,
the DSB, upon request, shall grant authorization to the developing or least-developed country
Member and any other Members to suspend concessions or other obligations within 30 days.
(d) The DSB shall review the operation of paragraph 6 of this Article not later than
five years after its implementation with a view to ensuring its effectiveness and in this regard
may adopt appropriate measures and amendments to this Understanding.
X. RESPONSIBILITIES OF THE SECRETARIAT
Article 27.1 should be amended by adding the following:
The Secretariat shall provide all relevant legal, historical and procedural research and other
material relating to a dispute to the developing and least-developed country Members thatare parties or third parties in the dispute.  The material shall cover the specific rights and
obligations relating to the particular issues raised in the dispute.
Article 27.2 should be amended by adding the following:
The Secretariat shall maintain a geographically balanced roster of legal experts from which
developing and least-developed country Members may select experts to assist them in dispute
settlement proceedings.  Notwithstanding the reference to impartiality in the provision of
legal and other services by the Secretariat, the legal expert shall fully discharge the functions
of counsel to the developing or least-developed country Member party to a dispute.TN/DS/W/42
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XI. FUND ON DISPUTE SETTLEMENT
A new Article 28 should be introduced in the following terms:
Article 28
WTO Fund on Dispute Settlement
1. There shall be a fund on dispute settlement to facilitate the effective utilization by developing
and least-developed country Members of this Understanding in the settlement of disputes arising from
the covered agreements.
2. The fund established under paragraph 1 of this Article shall be financed from the regular
WTO budget.  However, to ensure its adequacy, the fund may additionally be funded from extra-
budgetary sources, which may include voluntary contributions from Members.
3. The General Council shall annually review the adequacy and u tilization of the fund with a
view to improving its effectiveness and in this regard may adopt appropriate measures and
amendments to this Understanding.
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