AUSTRALIA – ANTI-DUMPING MEASURES ON A4 COPY PAPER COMMUNICATION FROM THE PANEL
Document: COMMUNICATION FROM
Date: 14 May 2019
Document codes: WT/DS529/13
Complainant: Indonesia
Respondent: Australia
Third parties: Canada, China, EU, Egypt, India, Israel, Japan, South Korea, Russia, Singapore, Thailand, Ukraine, U.S., Vietnam
Dispute stage: Panel
Agreements cited: Art. 2.2, 2.2.1.1  Anti-dumpingArt. VI:1  GATT 1994Art. 9.3  Anti-dumpingArt. VI:2  GATT 1994

AUSTRALIA – ANTI-DUMPING MEASURES ON A4 COPY PAPER
COMMUNICATION FROM THE PANEL
The following communication, dated 13 May 2019, was received from the Chairperson of the Panel
with the request that it be circulated to the Dispute Settlement Body.

On 19 December 2018, at the third party session, the European Union made a request for the third
parties to be present at the second substantive meeting of the Panel with the parties, later submitted
in writing on 11 January 2019.

On 24 April 2019, the Panel issued the attached decision to the parties and third parties.

Paragraph 1(3) of the Working Procedures for the Panel proceedings in the dispute Australia – Anti-
Dumping Measures o n A4 Copy Paper provides in relevant part that "[t]h e Panel will circulate
preliminary rulings as appropriate." Therefore, I would be grateful if you c ould circulate this letter
and the attached decision to the DSB.

AUSTRALIA – ANTI-DUMPING MEASURES ON A4 COPY PAPER (DS529)
DECISION OF THE PANEL CONCERNING THE EUROPEAN UNION'S REQUEST FOR THIRD PARTIES
TO OBSERVE THE SECOND SUBSTANTIVE MEETING OF THE PANEL

1.1. In the course of its oral statement at the third party session of the current proceeding, which
took place on 19 December 2018, the Euro pean Union made a request that the third parties be
allowed to observe the second substantive meeting of the Panel with the parties .
On 20 December 2018, the Panel asked the European Union to submit its request in writing and
"indicate what circumstances before the Panel warrant granting additional participatory rights to the
third parties at this stage of the proceeding" as well as explain "how the circumstances before the
Panel are different from those already considered in paragraphs 1.7 -1.10 of the [Panel's] Decision
concerning the requests for enhanced third party rights issued on 29 November 2018".1
1.2. In its written communication of 11 January 2019 , the European Union request s the Panel to
allow the presence of the third parties in the room as observers during the second substantive
meeting with the parties. In case the Panel decides to pose additional questions to the third parties,
the European Union contends that the third parties would be better p laced to respond to any such
questions having observed the exchange of arguments between the parties at the second meeting.
Regarding the circumstances that have changed from those considered in the Panel's Decision of
29 November 2018, the European Union argues that the present request is limited in scope and
places no additional burden on the parties and that the Panel now has the benefit of having witnessed
the third party participation during the first meeting which demonstrated the breadth and depth of
interest of the third parties in the issues involved and the interactive nature of their interventions ,
and has helped to assist the Panel in its deliberations.
1.3. In its communication of 25 January 2019, Indonesia has objected to the
European Union's request. Indonesia points out that , as indicated in paragraph 1.8 of the
Panel's Decision of 29 November 2018, in past cases, additional third party rights were granted over
the objections of a party "only in exceptional circumstances". According to Indone sia, since the
request does not demonstrate a change in the circumstances already considered by the Panel, it
should be rejected. In Indonesia's view, the depth and breadth of third parties' interest in the dispute
do not justify revisiting the Panel's Dec ision Concerning the Requests for Enhanced Third Party
Rights.
1.4. In its communication of 25 January 2019, Australia supports the European Union's request and
points out the active participation of third parties in the third party session. Relying on the Panel's
Working Procedures which provide that the Panel may pose questions to third parties at any time,
Australia argues that , should the Panel wish to ask additional questions following the second
substantive meeting, the third parties would be better informed to respond to such questions having
observed that meeting. Australia considers that the presence of the third parties in the room does
not place any additional burden on the parties.
1.5. None of the other third parties have provided any specific comments o n the substance of the
request. China has indicated that if the Panel were to grant any additional rights to the
European Union, China requests to be granted the same additional third party rights.
1.6. We note first that the European Union's request seeks thir d party presence at the second
substantive meeting of the Panel with the parties – a right which is not provided for in the DSU, and
which the Panel therefore regards as an additional or "enhanced" right for third parties. We recall
that, according to the Appellate Body, "[a] panel's decision whether to grant 'enhanced' participatory
rights to third parties … falls within the discretionary authority of that panel. Such discretionary

1 Panel communication to the parties (20 December 2018).

authority is, of course, not unlimited and is circumscribed, for example, by the requirements of due
process."2
1.7. At the early stage of this proceeding, the Panel considered and declined requests for enhanced
third party rights in this disput e. In its Decision of 29 November 2018, the Panel set out its
understanding of panel practices on the issue of enhanced third party rights. Noting
Indonesia's objection to the requests for enhanced third party rights, the Panel observed that:
[I]n past cases additional third party rights have been granted over the objections of a
party only in exceptional circumstances such as parallel proceedings involving the same
measures, where challenged measures had a significant economic effect on third
parties, or w here certain third parties maintained similar measures that could be
affected by the outcome of the case.3
1.8. In denying the requests, the Panel further noted that:
None of the parties or third parties have alleged the existence of parallel proceedings
involving the same measures as the present dispute or indicated that they maintain
measures similar to the challenged one that could be affected by the outcome of the
dispute. China, the Russian Federation and Australia have equally not demonstrated the
existence of significant economic effects of the contested measures on third parties or
presented other similarly compelling circumstances that would suggest that granting
additional third party rights is warranted.4
1.9. The Panel notes that the present request for enhanced third party rights is more limited in
scope than the prior requests addressed by the Panel in its Decision of 29 November 2018, and the
Panel does not understand this to be a request to reconsider that decision. While the Panel is mindful
of the limited scope of the present request, granting additional rights to third parties beyond those
provided for in the DSU over the objection of a party nevertheless requires an adequate justification.
The Panel has taken into account the arguments presented by the European Union, Indonesia, and
Australia, and has considered the full record of the dispute up to this point. The Panel also observes
that in accordance with Article 10.2 of the DSU, third parties in any dispute are understood to have
a "substantial interest" in the case and that the Panel's ability to ask questions of third parties at
any time is a standard aspect of panel working procedures. In light of these considerations, the
Panel does not find sufficient justification to distinguish this dispute from others in which the interests
of third parties are fully taken into account without affording enhanced participatory rights.
1.10. For the above reasons, the Panel declines the European Union's request for third parties to
be present as observers at the second substantive meeting with the parties.

EC), para. 7; and EC – Hormones (Canada) (Article 22.6 – EC), para. 7). (fns omitted)
4 Decision of the Panel concerning the requests for enhanced third party rights (29 November 2018),
para. 1.8.