CANADA – MEASURES CONCERNING TRADE IN COMMERCI AL AIRCRAFT AGREED PROCEDURES FO R ARBITRATION UNDER ARTICLE 25 OF THE DS U
Document: AGREED PROCEDURES
Date: 3 June 2020
Document codes: WT/DS522/20
Complainant: Brazil
Respondent: Canada
Third parties: China, EU, Japan, Russia, Singapore, U.S.
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 3.1(a), 3.2, 3.1(b), 5(c), 6.3(a), 6.3(b), 6.3(c), 6.4, 6.5  Subsidies and Countervailing Measures (SCM)

CANADA – MEASURES CONCERNING TRADE IN COMMERCI AL AIRCRAFT
AGREED PROCEDURES FO R ARBITRATION UNDER ARTICLE 25 OF THE DS U
The following communication, dated 29 May 2020 , from the delegation of Brazil and the delegation
of Canada to the Chairperson of the Dispute Settlement Body, is circulated at the request of these
delegations.

Pursuant to Article 25.2 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes (DSU), Brazil and Canada no tify the Dispute Settlement Body that they have agreed to the
attached Procedures for Arbitration under Article 25 of the DSU in the Canada – Measures Concerning
Trade in Commercial Aircraf t (DS522) dispute.

Brazil and Canada jointly request that you notify all Members through circulation of those Procedures
in the DS document series for that dispute.

AGREED PROCEDURES FOR ARBITRATION
UNDER ARTICLE 25 OF THE DSU IN THE DISPUTE
CANADA - MEASURES CONCERNING TRADE IN COMMERCIAL AIRCRAFT (DS522)

1. In order to give effect to communication JOB/DSB/1/Add.12 in this dispute, Brazil and Canada
(hereafter the "parties") mutually agree pursuant to Article 25.2 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (DSU) to enter into arbitration under Article 25 of
the DSU to decide any appeal from any final panel report 1 as issued to the parties in the dispute
Canada - Measures Concerning Trade in Commercial Aircraft (DS522). Any party to the dispute may
initiate arbitration in accordance with these agreed procedures .
2. The arbitration may only be initiated if the Appellate Body is not able to hear an appeal in th is
dispute under Article 16.4 and 17 of the DSU. For the purposes of these agreed procedures, such
situation is deemed to arise where, on the date of issuance of the final panel report to the parties,
there are fewer than three Appellate Body members.
For greater certainty, if the Appellate Body is able to hear appeals at the date on which the final
panel report is issued to the parties, a party may not initiate an arbitration, and the parties shall be
free to consider an appeal under Articles 16.4 and 17 o f the DSU.

3. In order to facilitate the proper administration of arbitration under these agreed procedures,
the parties hereby jointly request the panel to notify the parties of the anticipated date of circulation
of the final panel report within the meaning of Article 16 of the DSU, no later than 45 days in advance
of that date.
4. Following the issuance of the final panel report to the parties, but no later than 10 days prior
to the anticipated date of circulation of the final panel report to the rest o f the Membership, any
party may request that the panel suspend the panel proceedings with a view to initiating the
arbitration under these agreed procedures. Such request by any party is deemed to constitute a
joint request by the parties for suspension of the panel proceedings pursuant to Article 12.12 of the
DSU.
The parties hereby jointly request the panel to provide for the following, before the suspension takes
effect:

i. the lifting of confidentiality with respect of the final panel report under the Working
Procedures of the panel, subject to the protection of business confidential information
("BCI") and highly sensitive business information ("HSBI"), in accordance with the
panel's adopted procedures for the protection of BCI and HSBI ("BCI/HSBI procedures");

ii. the transmission of the entire panel record (including BCI and HSBI submissions and
exhibits and the confidential version(s) of the final panel report) to the arbitrators upon
the filing of the Notice of Appeal; Rule 25 of the Working Procedures for Appellate Review
shall apply mutatis mutandis ;

iii. the transmission of the final non -confidential panel report in the working languages of
the WTO to the parties and to the third parties, as well as the confidential version(s) of
the final panel report to the parties. 2

Except as provided in paragraphs 6 and 18, the parties shall not request the panel to resume the
panel proceedings.

5. The arbitration shall be initiated by filing of a Notice of Appeal with the WTO Secretariat no
later than 20 days after the suspension of the panel proceedings referred to in paragraph 4 has

1 For greater certainty, this includes any final panel report issued in compliance proceedings pursuant to
Article 21.5 of the DSU.
2 The parties confirm that it is not their intention that the panel report be circulated within the meaning
of Article 16 of the DSU.

taken effect. The Notice of Appeal shall include the non-confidential final panel report in the working
languages of the WTO. The Notice of Appeal shall be simultaneously notified to the other party and
to the third parties in the panel proceedings. Rules 20 -23 of the Working Procedures for Appellate
Review shall apply mutatis mutandis .
6. Subject to paragraph 2, where the arbi tration has not been initiated under these agreed
procedures, the parties shall be deemed to have agreed not to appeal the panel report pursuant to
Articles 16.4 and 17 of the DSU, with a view to its adoption by the DSB. If the panel proceedings
have been suspended in accordance with paragraph 4, but no Notice of Appeal has been filed in
accordance with paragraph 5, the parties hereby jointly request the panel to resume the panel
proceedings.
7. The arbitrators shall be three persons selected from the pool of 10 standing appeal arbitrators
composed in accordance with paragraph 4 of communication JOB/DSB/1/Add.12 (hereafter the "pool
of arbitrators"). 3 The selection from the pool of arbitrators will be done on the basis of the same
principles and methods that apply to form a division of the Appellate Body under Article 17.1 of the
DSU and Rule 6(2) of the Working Procedures for Appellate Review, including the principle of
rotation.4 The WTO Director General will notify the parties and third parties of the results of the
selection. The arbitrators shall elect a Chairperson. Rule 3(2) of the Working Procedures for Appellate
Review shall apply, mutatis mutandis, to the decision -making by the arbitrators.
8. In order to give effect to paragraph 5 of communication JOB/DSB/1/Add.12 in this dispute,
the arbitrators may discuss their decisions relating to the appeal with all of the other members of
the pool of arbitrators, without prejudice to the exclusive responsibility and freedom of the
arbitrators with respect to such decisions and their quality. All members of the pool of arbitrators
shall receive any document relating to the appeal.
9. An appeal shall be limited to issues of law covered by the panel report and legal interpretations
developed by the panel. The arbitr ators may uphold, modify or reverse the legal findings and
conclusions of the panel. Where applicable, the arbitration award shall include recommendations, as
envisaged in Article 19 of the DSU. The findings of the panel which have not been appealed shall be
deemed to form an integral part of the arbitration award together with the arbitrators' own findings.
10. The arbitrators shall only address those issues that are necessary for the resolution of the
dispute. They shall address only those issues that have been raised by the parties, without prejudice
to their obligation to rule on jurisdictional issues.
11. Unless otherwise provided for in these agreed procedures, the arbitration shall be governed,
mutatis mutandis , by the provisions of the DSU and other rules and procedures applicable to
Appellate Review. This includes in particular the Working Procedures for Appellate Review and the
timetable for appeals provided for therein as well as the Rules of Conduct. 5 It also includes, mutatis
mutandis, the panel's BCI/HSBI procedures in force at the time of the suspension of the panel
proceedings, pursuant to paragraph 4. 6 The arbitrators may adapt the Working Procedures for
Appellate Review and the timetable for appeals provided for therein, as well as the BCI/HSBI
procedures, where justified under Rule 16 of the Working Procedures for Appellate Review, after
consulting the parties.
12. The parties request the arbitrators to issue the award within 90 days following the filing of the
Notice of Appeal. To tha t end, the arbitrators may take appropriate organizational measures to
streamline the proceedings, without prejudice to the procedural rights and obligations of the parties

3 If the pool of arbitrators has not been composed, footnote 1 to paragraph 4 of communication
JOB/DSB/1/Add.12 shall apply.
4 However, at the request of a party to a dispute, any member of the pool of arbitrators who is not a
national of a participating Member shall be excluded from the selection process. Two nationals of the same
Member shall not serve on the same case.
5 For greater certainty, paragraphs 14 – 17 of the Rules of Conduct shall apply to arbitrators.
6 In these arbitration proceedings, references in the panel's BCI/HSBI procedures to the "panel" shall be
read as references to the "arbitrators" and references to any appellate proceedings in the panel's BCI/HSBI
procedures shall be read as references to these arbitration proceedings.

and due process. Such measures may include decisions on page limits, time limits and deadlines as
well as on the length and number of hearings required.
13. If necessary in order to issue the award within the 90 day time-period, the arbitrators may also
propose substantive measures to the parties, such as an exclusion of claims base d on the alleged
lack of an objective assessment of the facts pursuant to Article 11 of the DSU.7
14. On a proposal from the arbitrators, the parties may agree to extend the 90 day time-period
for the issuance of the award.
15. The parties agree to abide by the arbitration award, which shall be final. Pursuant to Article 25.3
of the DSU, the award shall be notified to, but not adopted by, the DSB and to the Council or
Committee of any relevant agreement.
16. Only parties to the dispute, not third parties, may initiate the arbitration. Third parties which
have notified the DSB of a substantial interest in the matter before the panel pursuant to Article 10.2
of the DSU may make written submissions to, and shall be given an opportunity to be heard by, the
arbitrators. Rule 24 of the Working Procedures for Appellate Review shall apply mutatis mutandis.
17. Pursuant to Article 25.4 of the DSU, Articles 21 and 22 of the DSU shall apply mutatis mutandis
to the arbitration award issued in this dispute.
18. At any time during the arbitration, the appellant, or other appellant, may withdraw its appeal,
or other appeal, by notifying the arbitrators. This notification shall also be notified to the panel and
third parties, at the same time as the notification to the arbit rators. If no other appeal or appeal
remains, the notification shall be deemed to constitute a joint request by the parties to resume panel
proceedings under Article 12.12 of the DSU. 8 If an other appeal or appeal remains at the time an
appeal or other appeal is withdrawn, the arbitration shall continue.
19. The parties shall jointly notify these agreed procedures to the panel in Canada - Measures
Concerning Trade in Commercial Aircraft (DS522) and ask the panel to grant, where applicable, the
joint requests formulated in paragraphs 3, 4, 6, and 18.9