EUROPEAN COMMUNITIES – MEASURES AFFECTING THE APPROVAL AND MARKETING OF BIOTECH PRODUCTS
Document: Communication from the Chairman of the Panel
Date: 29 September 2006
Document codes: WT/DS291/32; WT/DS292/26; WT/DS293/26
Complainant: Argentina
Respondent: EU
Third parties: Australia, Brazil, Canada, Chile, China, Taiwan, Colombia, El Salvador, Honduras, Mexico, New Zealand, Norway, Paraguay, Peru, Thailand, Uruguay, U.S.
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 2.2, 2.3, 5.1, 5.2, 5.5, 5.6, 7, 8, 10.1, Annex B, Annex C  Sanitary and Phytosanitary Measures (SPS)Art. III:4, X:1, X:3(a), XI:1  GATT 1994Art. 2.1, 2.2, 2.8, 2.9, 2.11, 5.1, 5.2, 5.6, 5.8, 12  Technical Barriers to Trade (TBT)Art. 4.2  AgricultureArt. I:1  GATT 1994

EUROPEAN COMMUNITIES – MEASURES AFFECTING THE APPROVAL
AND MARKETING OF BIOTECH PRODUCTS

Communication from the Chairman of the Panel

 The following communication, dated 29 September 2006, from Christian Häberli, Chairman
of the Panel, addressed to the Chairman of the Di spute Settlement Body, is circulated in accordance
with Article 12 of the Understanding on Rules and Procedures Governing the Settlement of Disputes.

 On behalf of the Panel, it is my honour to provide you with our Reports in European
Communities - Measures Affecting the A pproval and Marketing of Biotech Products , WT/DS291,
WT/DS292 and WT/DS293, which will be circulated to Members of the
today. In this connection, I would like to draw the attention of the DSB to two systemic issues
encountered in this case that should be of concern to the Membership as a whole:

1. With the circulation of its Reports, the Panel is completing more than two and a half years of
legal proceedings. This is an unusually l ong period of time for WTO panel proceedings,
considering also that Article 3.3 of the DSU st resses the importance of the prompt settlement
of disputes. But the number of claims and pr oducts involved in this case was unprecedented
and the record before the Panel immense. An estimated 7-8 work years of professional
Secretariat staff time (not including transla tion and support staff time) have gone into the
preparation of these Reports, not counting the time invested by the Panellists. This quite
simply means that panels are unable to complete proceedings concerning such disputes within
the 6-9 month timeframe laid down in Article 12.9 of the DSU, without additional resources
being made available to the Secretariat for this purpose.

2. The second point concerns the importance of pa rties maintaining the confidentiality of panel
proceedings. Regrettably, a serious confiden tiality breach occurred after the Panel's Interim
Reports were circulated to the Parties. Failure to respect the confidentiality of interim reports,
and indeed of all stages of the proceedings, ma kes it more difficult for parties to reach a
mutually acceptable solution. It is worth recalli ng in this regard that Article 3.7 of the DSU
characterizes mutually acceptable solutions as the preferred solution to disputes. Failure to
respect the confidentiality of interim reports al so has an adverse effect on the willingness of
private parties to make available to the par ties and panels business confidential information
that may be critical to the resolution of a disput e. Finally, it may potentially expose panels or
the Secretariat to political pressure as a result of public discussion of, and debate on, a panel's
interim findings and conclusions, with possibl e consequences for the panel process neither
intended nor desired by WTO Members. Given the serious breach which occurred in this
case, the Panel provided the Parties with a conf idential version of its Final Reports which

would have allowed it to trace back and attribut e any leak to the Party responsible for it.
Future panels may wish to consider adopting similar procedures, as appropriate.