Document: WT/DS353/R Page E-1 BCI deleted, as indicated [***] ANNEX E SELECTED RULINGS OF THE PANEL CONCERNING BCI/HSBI PROCEDURES AND THEIR APPLICATION Contents Page Annex E-1 Communication of 4 June 2007 E-2
Date: 4 June 2007
Document codes: WT/DS353/R
Complainant: EU
Respondent: U.S.
Third parties: Australia, Brazil, Canada, China, Japan, South Korea
Dispute stage: Implementation & Compliance
Agreements cited: Art. 3.1, 3.2, 5, 6.3, 1.1, 2  Subsidies and Countervailing Measures (SCM)Art. III:4  GATT 1994

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ANNEX E

SELECTED RULINGS OF THE PANEL 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

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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/HSBI 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 text or speech and comprehends more indirectly the use
made of a particular document or utterance, 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 document 3 in the context of the present
dispute, or "information" as to how a particular document 4 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.

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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

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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 harm, 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 content) 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.

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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 paragraphs and exhibits raised by the 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 above, 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 and paragraphs (i.e. Annexes) in a BCI version.9

HSBI laptop. Needless to say, the EC is allowed to redact all information which it deems as HSBI from the BCI
version.

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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".

Information and Highly Sensitive Business Information".

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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 Procedures 1 as attached in accordance with the original paragraph 32 2 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 only 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.

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 attachment for ease of reference.