TURKEY – MEASURES AFFECTING THE IMPORTATION OF RICE
Document: Communication from the United States
Date: 26 October 2007
Document codes: WT/DS334/9; WT/DS334/R
Complainant: U.S.
Respondent: Turkey
Third parties: Argentina, Australia, China, Egypt, EU, South Korea, Pakistan, Thailand
Dispute stage: Panel
Agreements cited: Art. XI:1, X:1, X:2, III:4, X:3(a)  GATT 1994Art. 4.2  AgricultureArt. 1.4, 3.3, 3.5(e), 3.5(f), 3.5(b), 3.5(d), 3.5(g), 3.5(h), 1.2, 1.3, 1.5, 1.6, 3.2, 3.5(a), 5.1, 5.2, 5.3, 5.4  Import LicensingArt. 2.1, Annex 1  Trade-Related Investment Measures (TRIMs)

TURKEY – MEASURES AFFECTING THE IMPORTATION OF RICE

Communication from the United States

 The following communication, dated 22 October 2007, is circulated at the request of the
delegation of the United States.

Systemic Concern Raised by the Final Report

 The final report in ("Turkey – Rice") ,
, was circulated to Members on 21 Sept ember 2007. While the United States is pleased
with the overall result of this dispute, it would like to take this opportunity to highlight one aspect of
the report that has systemic implications
1 that the United States believes should be of concern to
Members: the inclusion by a panel of findings not requested by either party and that neither party had
a chance to review in the interim report.

Inclusion of New Findings, Not Requested by Either Party, in the Final Report

 The final report issued to the parties in Turkey – Rice included a completely new section in
the report's findings, Part VII.G, that had not been included in the interim report. Prior to the
originally scheduled date for circul ation of the final report, the United States drew to the attention of
the Panel the irregularity of Part VII.G's inclusion at the final stage in the panel process. After the
United States reiterated its objecti on and request for removal of Part VII.G in reply to both Turkey
and the Panel's responses, the Panel delayed circulation of the final report. At the Panel's invitation,
the parties then submitted further comments on the issue of including Part VII.G, and on
21 September, the Panel circulated the final repor t, which retained Part VII.G with some minor
modifications, together with the parties' comments regarding the addition of new findings.

 The United States is troubled by the systemic implications of the Pa nel's addition of new
findings in the final report. The Panel made the ne w findings despite the fact that Article 15.2 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU") provides that
findings and conclusions are to be issued in the inte rim report. Even more im portantly, neither party
requested the findings in question. Because Turkey never requested or raised the issues during the
Panel proceedings, neither party presented any evidence or arguments on the subject, and the Panel
had no factual basis for making the findings at all. Furthermore, because neither the United States nor
Turkey requested the findings as part of the in terim comments either, th ere was no basis under DSU
Articles 15.2 or 15.3 for the Panel to make the add itional findings in the final report. As previous

1 As noted in the statement of the United States to the Dispute Settlement Body at its 22 October 2007,
meeting, there is more than one aspect of the panel repo rt that raises systemic concerns. This paper is not
intended to address more than the one aspect.

panels and the Appellate Body have noted
2, panels are not authorized to make findings under these
circumstances. The Panel's decision nevertheless to do so represents a serious erosion of the due
process protections reflected in these DSU provisions.

The "Findings" at Issue

 As the United States explained to the Panel, it does not matter what the substance of the
"findings" at issue may be (in this case they i nvolved the treatment of Turkey). The addition of
findings after a panel has already provided its inte rim report and received the parties' requests for
review raises important systemic concerns, regardless of what those findings are. It means that,
contrary to Article 15 of the DSU, the parties have not been provided an opportunity to review and
comment on the findings. Accordingly, there has be en no opportunity to review the factual findings
that may underlie any legal findings, for example, wh ether the relevant facts are accurately described,
whether they were contested, or even whether they were presented to the panel at all. Similarly, there
is no opportunity for either party to consider whet her the findings of law or legal interpretation take
into account the claims made and arguments presente d by a party, including whether they concern a
claim actually made by the complaining party or a defense asserted by a responding party. And
parties are unable to consider and comment upon how these additional findings might affect any other
aspect of the panel report.

Treatment of the Parties' Comments

 When the United States discovered that the Pane l had added findings to the final report that
were not contained in the interim report and that neither party requested either during the panel
proceedings or in response to the interim report, the United States raised its concerns with the Panel.
Annex K of the final report contains the parties' comments and the Panel's response. This added to
the transparency of the discussion and assists Members' consideration of the systemic concerns arising
from the addition of these findings. At the same time, however, the United States wonders how this
relates to the confidentiality of the interim and final reports provided to the parties. The United States
would call to Members' attention that this treatment of the parties' comments also differs from the
treatment that is accorded during the interim review phase. At the interim phase, the interim report
and the parties' comments on it are treated as c onfidential. Although some of the comments on the
interim report may be summarized as part of the "d iscussion of the arguments made at the interim
review stage" that is required by Article 15.3 of the DSU to be included in the panel's final report,
those comments are not treated as non-confidential in their entirety. The fact that the Panel treated the
comments on its final report differently than it treated the comments on the interim report only
underscores the systemic concerns raised – the Panel considered those findings added for the first time
at the final report stage to somehow be of a different nature or status than the findings in the interim
report. There is no basis for this under the DSU.

Conclusion

 It should not be possible to circumvent the ag reed process for interim review in the DSU by
including findings for the first time at the final report stage. The United States believes that the
systemic interests of the WTO would be best ser ved by the careful adherence by panels to the
provisions of the DSU in this area.
WT/DS231/AB/R, adopted 23 October 2002, para. 301; Panel Report, European Communities – Selected
Customs Matters , WT/DS315/R, adopted 11 December 200 6, paras. 6.3-6. 6; Panel Report, Australia –
Measures Affecting Importation of Salmon , WT/DS18/R, adopted 6 November 1998, as modified by the
Appellate Body Report, WT/DS18/AB/R, para. 7.3.