UNITED STATES – CONDITIONAL TAX INCENTIVES FOR LARGE CIVIL AIRCRAFT AB-2016-8
Document: Report of the Appellate Body Addendum
Date: 4 September 2017
Document codes: WT/DS487/AB/R/Add.1; WT/DS487/AB/R.
Complainant: EU
Respondent: U.S.
Third parties: Brazil, China, India, Japan, South Korea, Russia, Australia, Canada
Dispute stage: Appellate Body
Agreements cited: Art. 1, 2, 1.1(a)(1)(ii), 1.1(b), 2.3, 3.1(b), 3.2, 4.7  Subsidies and Countervailing Measures (SCM)

UNITED STATES – CONDITIONAL TAX INCENTIVES
FOR LARGE CIVIL AIRCRAFT
AB-2016-8
Report of the Appellate Body
Addendum
This Addendum contains Annexes A to D to the Report of the Appellate Body circulated as
document

The Notice s of Appeal and Other Appeal and the executive summaries of written submissions
contained in this Addendum are attached as they were received from the participants and third
participants. The content h as not been revised or edited by the Appellate Body, except that
paragraph and footnote numbers that did not start at one in the original may have been
re-numbered to do so, and the text may have been formatted in order to adhere to WTO style. The
executive summaries do not serve as substitutes for the submissions of the participants and third
participants in the Appellate Body's examination of the appeal.

LIST OF ANNEXES
ANNEX A
NOTICES OF APPEAL AND OTHER APPEAL
Contents Page
Annex A-1 United States' Notice of Appeal A-2
Annex A-2 European Union's Notice of Other Appeal A-4
ANNEX B
ARGUMENTS OF THE PARTICIPANTS
Contents Page
Annex B-1 Executive summary of the United States' appellant's submission B-2
Annex B-2 Executive summary of the European Union's other appellant's submission B-5
Annex B-3 Executive summary of the European Union's appellee's submission B-9
Annex B-4 Executive summary of the United States' appellee's submission B-14
ANNEX C
ARGUMENTS OF THE THIRD PARTICIPANTS
Contents Page
Annex C-1 Executive summary of Australia's third participant's submission C-2
Annex C-2 Executive summary of Brazil's third participant's submission C-4
Annex C-3 Executive summary of Canada's third participant's submission C-5
Annex C-4 Executive summary of China's third participant's submission C-6
Annex C-5 Executive summary of Japan's third participant's submission C-7
ANNEX D
PROCEDURAL RULINGS
Contents Page
Annex D-1 Procedural Ruling of 22 December 2016 regarding additional procedures to
protect business confidential information (BCI)
D-2
Annex D-2 Procedural Ruling of 6 January 2017 regarding the United States' request to
modify the deadline for filing its appellant's submission
D-9
Annex D-3 Procedural Ruling of 2 June 2017 regarding public observation of the opening
statements at the oral hearing
D-11

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ANNEX A
NOTICES OF APPEAL AND OTHER APPEAL
Contents Page
Annex A-1 United States' Notice of Appeal A-2
Annex A-2 European Union's Notice of Other Appeal A-4

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ANNEX A-1
UNITED STATES' NOTICE OF APPEAL*
Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review, the
United States files this Notice of Appeal to the Appellate Body on certain issues of law covered in
the Report of the Panel in United States – Conditional Tax Incentives for Large Civil Aircraft
(WT/DS487/R & WT/DS487/R/Add.1) ("P anel Report") and certain legal interpretations developed
by the Panel.
The United States seeks review by the Appellate Body of the Panel 's finding and conclusion
that the Washington State B&O aerospace tax rate for the manufacturing or sale of Boeing 777X
airplanes (the "B&O aerospace tax rate") is inconsistent with Articles 3.1(b) and 3.2 of the
Agreement on Subsidies and Countervailing Measures (the "SCM Agreement") because it is
de facto contingent on the use of domestic over imported goods. 1 This finding is in error and is
based on erroneous findings on issues of law and legal interpretations, including the Panel 's failure
to conduct an objective assessment of the matter as required by Article 11 of the DSU.
The Panel erred in finding that t he B&O aerospace tax rate for the 777X program is
contingent on the use of domestic over imported wings for the 777X. In particular:
a. The Panel erroneously interpreted and applied Article 3.1(b) of the SCM Agreement as if
it prohibited subsidies conditional on the domestic siting of production activities.2
b. The Panel erroneously interpreted and applied Article 3.1(b) of the SCM Agreement in
finding that the B&O aerospace tax rate for the 777X program is contingent on the "use"
of wings for the 777X, even tho ugh Boeing does not and will not "use" wings to produce
the 777X, and Boeing is nonetheless eligible to receive the B&O aerospace tax rate for
the 777X program (and other programs).3
c. The Panel erroneously interpreted and applied Article 3.1(b) of the SCM Agreement in
finding that the B&O aerospace tax rate for the 777X program is contingent on the use
of "domestic" over "imported" wings for the 777X, even though the Panel did not
interpret the meaning of the terms "domestic" and "imported," did not provide sufficient
analysis of what would make wings "domestic" or "imported," and did not assess
whether the 777X wings are "domestic." 4 The Panel also failed to provide the basic
rationale behind its finding as required by Article 12.7 of the DSU.
d. The Panel err oneously interpreted and applied Article 3.1(b) of the SCM Agreement by
relying on hypothetical scenarios with no evidentiary basis to evaluate whether the B&O
aerospace tax rate for the 777X program is "contingent" in fact on the use of domestic
over imported goods.5 The Panel failed to make "an objective assessment of the matter
before it, including an objective assessment of the facts of the case," as required by
Article 11 of the DSU because it used hypothetical scenarios involving Boeing 's purchase
of 777X wings from another Washington manufacturer and Boeing 's importation of 777X
wings from a foreign producer that were contrary to the evidence before it.6

* This notification, dated 16 December 2016, was circulated to Members as document WT/DS487/6.

1 See, e.g., Panel Report, paras. 7.369, 8.1(c), 8.2.
2 See, e.g., Panel Report, paras. 7.360, 7.368-7.369, 8.1(c), 8.2.
3 See, e.g., Panel Report, paras. 7.219-7.222, 7.353-7.356, 7.368.
4 See, e.g., Panel Report, Section 7.5.4 (interpreting certain terms of Article 3.1(b), but not interpreting
the terms "domestic" and "imported"), paras. 7.364, 7.367.
5 See, e.g., Panel Report, paras. 7.355-7.356, 7.359, 7.363-7.369.
6 See, e.g., Panel Report, paras. 7.355-7.356, 7.359, 7.363-7.369.

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e. The Panel failed to make "an objective assessment of the matter before it, including an
objective assessment of the facts of the case," as required by Article 11 of the DSU in
finding that Boeing would lose the B&O aerospace tax rate for the 777X program if it
used 777X wings produced outside Washington State, and in finding that it would not
lose that tax rate if it sourced 777X wings from a Washington manufacturer.7
f. The Panel failed to make "an objective assessment of the matter before it, including an
objective assessment of the facts of the case," as required by Article 11 of the DSU in
finding that the Second Siting Provision 8 concerns the use of certain goods, and
specifically the origin of those goods that enter into the production process for the 777X,
as a condition for the continued availability of the B&O aerospace tax rate for the 777X
program.9 Were the Appellate Body to consider the meaning and operation of the Second
Siting Provision as an issue of law for purposes of the DSU, then the United States
considers the Panel erred as a matter of law in its understanding or interpretation of the
Second Siting Provision.
The United States respectfully requests that the Appellate Body reverse these findings by
the Panel.

7 See, e.g., Panel Report, paras. 7.363-7.367, 7.369.
8 See Panel Report, Section 7.3.2.2.
9 See, e.g., Panel Report, paras. 7.341, 7.348-7.356, 7.358-7.368.

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ANNEX A-2
EUROPEAN UNION'S NOTICE OF OTHER APPEAL*
Pursuant to Articles 16.4 and 17.1 of the DSU and Article 4.8 of the SCM Agreement , the
European Union hereby notifies to the Dispute Settlement Body its decision to appeal to the
Appellate Body certain issues of law covered in t he Panel Report and certain legal interpretations
developed by the Panel in the dispute United States – Conditional Tax Incentives for Large Civil
Aircraft (WT/DS487). Pursuant to Rule 23(1) of the Working Procedures for Appellate Review , the
European Unio n simultaneously files this Notice of Other Appeal with the Appellate Body
Secretariat.

For the reasons to be further elaborated in its submissions to the Appellate Body, the
European Union appeals, and requests the Appellate Body to reverse, modify or de clare moot and
of no legal effect, the findings, conclusions and recommendations of the Panel, with respect to the
following errors of law and legal interpretations contained in the Panel Report1:

1. The Panel erred in the interpretation of Article 3.1(b) of the SCM Agreement by requiring the
complaining Member to demonstrate that the measure at issue "per se and necessarily
exclude{s}" the use of imported goods, and on that basis, finding that the First Siting
Provision,2 set out in Section 2 of Washington State Engrossed Substitute Senate Bill 5952
("ESSB 5952"), does not make the subsidies subject to that condition de jure contingent on
the use of domestic over imported goods.3
2. The Panel erred in the application of Artic le 3.1(b) of the SCM Agreement in finding that the
First Siting Provision does not make the subsidies subject to that condition 4 de jure
contingent on the use of domestic over imported goods.5
3. The Panel erred in the interpretation of Article 3.1(b) of the SCM Agreement by requiring the
complaining Member to demonstrate that the measure at issue "per se and necessarily
exclude{s}" the use of imported goods, and on that basis, finding that the First Siting
Provision, considered alone, does not make the subsid ies subject to that condition 6 de facto
contingent on the use of domestic over imported goods. 7 The European Union requests the
Appellate Body to consider this appeal only if it does not find (in accordance with the appeals
described in paragraph 1 or 2, above) that the First Siting Provision, considered alone,
makes the subsidies subject to it de jure contingent on the use of domestic over imported
goods in violation of Article 3.1(b).
4. The Panel failed to make an objective assessment under Article 11 of the DSU in finding that
the First Siting Provision, considered alone, does not make the subsidies subject to that
condition8 de facto contingent on the use of domestic over imported goods, within the

* This notification, dated 17 January 2017, was circulated to Members as document WT/DS487/7.

1 Paragraph numbers provided in footnotes to the following description of the Panel's errors are intended
to indicate the primary instance of the errors.
2 See Panel Report, paras. 7.28-7.30 (defining "First Siting Provision").
3 Panel Report, paras. 7.290, 7.291, 7.294, 7.296, 7.297, 8.1(1)(b)(i). The subsidies subject to the First
Siting Provision are the following: (a) reduced business and occupation (B&O) tax rate for the manufacture and
sale of commercial airplanes; (b) B&O tax credit for pre-production development for commercial airplanes and
components; (c) B&O tax credit for property taxes on commercial airplane manufacturing facilities;
(d) exemption from sales and use taxes for certain computer hardware, software, and peripherals;
(e) exemption from sales and use taxes for certain construction services and materials; (f) exemption from
leasehold excise taxes on port district facilities used to manufacture superefficient airplanes; and
(g) exemption from property taxes for the personal property of port district lessees used to manufacture
superefficient airplanes. See Panel Report, paras. 7.15, 7.28.
4 See footnote 3, above.
5 Panel Report, paras. 7.294, 7.296, 7.297, 8.1(1)(b)(i).
6 See footnote 3, above.
7 Panel Report, paras. 7.291, 7.330, 7.342-7.345.
8 See footnote 3, above.

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meaning of Article 3.1(b) of the SCM Agreement .9 The European Union requests the
Appellate Body to consider this appeal only if it does not find (in accordance with the appeals
described in paragraph 1 or 2, above) that the First Siting Provision, considered alone,
makes the subsidies subject to it de jure contingent on the use of domestic over imported
goods in violation of Article 3.1(b).
5. The Panel erred in the interpretation of Article 3.1(b) of the SCM Agreement by requiring the
complaining Member to demonstrate that the measure at issue "per se and necessarily
exclude{s}" the use of imported goods, and on that basis, finding that the S econd Siting
Provision,10 set out in Sections 5 and 6 of ESSB 5952, considered alone or together with the
First Siting Provision, does not make the B&O tax rate reduction (in respect of the 777X)
de jure contingent on the use of domestic over imported goods.11
6. The Panel erred in the application of Article 3.1(b) of the SCM Agreement in finding that the
Second Siting Provision, considered alone or together with the First Siting Provision, does
not make the B&O tax rate reduction (in respect of the 777X) de jure contingent on the use
of domestic over imported goods.12
7. The Panel failed to make an objective assessment under Article 11 of the DSU, in finding
that the Second Siting Provision, considered alone or together with the First Siting Provision,
does not make the B&O tax rate reduction (in respect of the 777X) de jure contingent on the
use of domestic over imported goods, within the meaning of Article 3.1(b) of the
SCM Agreement.13 In particular, the Panel's findings lacked a sufficient evidentiary basis.

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ANNEX B
ARGUMENTS OF THE PARTICIPANTS
Contents Page
Annex B-1 Executive summary of the United States' appellant's submission B-2
Annex B-2 Executive summary of the European Union's other appellant's submission B-5
Annex B-3 Executive summary of the European Union's appellee's submission B-9
Annex B-4 Executive summary of the United States' appellee's submission B-14

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ANNEX B-1
EXECUTIVE SUMMARY OF THE UNITED STATES' APPELLANT'S SUBMISSION

(Business confidential information redacted as marked "[BCI]")
1. The Panel correctly found that the Washington 0.2904 percent business and occupation
("B&O") tax rate for aerospace activities under Revised Code of Wash ington ("RCW") § 82.32.850,
as extended under Engrossed Substitute Senate Bill 5952 ( "ESSB 5952"), is de jure contingent on
the location of production activities in the state of Washington, and not on the use of domestic
goods.1 This finding is in line wit h the understanding of both parties and the third parties that
Article 3.1(b) of the Agreement on Subsidies and Countervailing Measures ("SCM Agreement ")
does not prohibit a Member making the receipt of subsidies contingent on the location of
production ac tivities in its territory. This principle follows from Article III:8(b) of the General
Agreement on Tariffs and Trade 1994 ("GATT 1994"), under which national treatment disciplines
do not prevent the payment of subsidies exclusively to "domestic producers".
2. However, under the Panel's erroneous de facto analysis, defining eligibility for a subsidy in
terms that describe the necessary production process – or who qualifies as a domestic producer –
will invariably lead to a finding of de facto contingency. Specifically, Washington made the entry
into force of the B&O aerospace tax rate contingent on the siting in Washington of a significant
commercial airplane manufacturing program, which was defined by the manufacture of a new
airplane model, including its fuse lage and wings. 2 (The Panel referred to this as the "First Siting
Provision.") The legislation also specified that that tax rate would cease to apply to the airplane
program that was sited in Washington ( i.e., Boeing's 777X) if Boeing sited 777X wing assem bly or
final assembly outside of Washington. 3 (The Panel referred to this as the "Second Siting
Provision.") The Panel found that by making the 777X's continued eligibility for the B&O aerospace
tax rate conditional on keeping production in Washington of t he aircraft and its wings, the Second
Siting Provision de facto required the use of domestic over imported wings. Thus, under the
Panel's analysis, the very act of defining eligibility for the subsidy in terms of production
activities – a mechanism express ly permissible under Article III:8(b) – led to the finding of a
de facto requirement to use domestic over imported goods if the specified production activities
could potentially result in intermediate goods.
3. That legal interpretation by the Panel was in error and vitiates its conclusion that the Second
Siting Provision renders the 0.2904 percent B&O tax rate on the manufacture and sale of 777Xs
inconsistent with Article 3.1(b). In addition, the Panel made multiple errors that led to this
self-contradictory and erroneous conclusion. These fall into three groups.
4. First, although Article 3.1(b) prohibits a subsidy only if it is contingent on the "use" of
domestic over imported goods, the Panel failed to evaluate whether Boeing's 777X process
involves the "use" of wings to manufacture the 777X. The evidence showed that it does not. The
ordinary meaning of "use" is the employment as an input or instrumentality in a productive
process, or consumption of a good for its intended purpose by the end user. In Boeing's production
of the 777X, the wing is none of these things – it is the output of Boeing's production process, and
not an input or instrumentality. The wing never exists as a separate entity; it is only completed
during and as part of final assembly. (In fact, a partial wing structure is joined with a partial
fuselage structure before a fuselage or wing ever exists.)
5. In a related vein, the Panel did not evaluate whether the 777X wing, much of which consists
of parts and components from outside Washington, including from foreign sources, is a "domestic
good," another prerequisite legal element to establish an inconsistency with Article 3.1(b).
Because Boeing is eligible for the tax treatment found to be a subsidy, if Boeing's 777X production
process does not involve the use of wings at all, or if such wings are not domestic, then the

1 Panel Report, paras. 7.296, 7.308, and 7.315. The United States refers to the Panel Report in this
dispute as "Panel Report," with no dispute short title following it.
2 RCW § 82.32.850(1) and (2)(c).
3 RCW § 82.323.85011(e)(ii).

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subsidy necessarily is not contingent on the use of domestic over imported wings. Thus, the Panel
failed to correctly apply the legal standard set out in Article 3.1(b) to the facts of the case.
6. Second, the Panel used hypothetical scenarios devoid of grounding in the facts to analyz e
whether the Second Siting Provision was de facto contingent on the use of domestic over imported
goods. The Panel recognized that "{d}e facto contingency must be established from the total
configuration of the facts constituting and surrounding the granting of the subsidy… ."4
7. However, the Panel based its evaluation of the operation of the Second Siting Provision on
hypotheticals in which "Boeing in the future sourced some 777X wings from other entities,
including foreign producers, rather than assemblin g all of them itself. "5 These hypotheticals relied
on the assumption that [BCI]. It further assumed that Boeing's production process could be
modified so as to feed in wings as discrete inputs. And finally, it assumed that it was possible to
[BCI]. These a ssumptions were not only devoid of evidentiary support, but also contrary to the
evidence. In performing the analysis in this way, the Panel erroneously interpreted or applied
Article 3.1(b), failed to make an objective assessment of the matter under Artic le 11 of the DSU,
and found a de facto breach before it could exist, even under the Panel's own reasoning.
8. Third, and finally, the Panel's evaluation of the operation of the Second Siting Provision
relied on faulty interpretations of evidence that, when o bjectively considered, do not support the
Panel's conclusion that the Second Siting Provision concerns the use and origin of certain goods.
The Panel based this finding on three pieces of evidence: the U.S. responses to two questions from
the Panel, the pr esence of the phrase "wing assembly or final assembly " in the Second Siting
Provision, and two statements by the Governor of Washington. However, it misinterpreted each of
these.
9. The U.S. responses to questions reflected the fact that eligibility for the B&O aerospace tax
rate depends on the siting of production activities, which does not necessitate, as the Panel
believed, that the results of such activities would be "domestic goods" if the activities occurred in
Washington, but "imported goods" if the activities occurred outside of the United States.
10. The "or" in "wing assembly or final assembly " indicates that these two processes are
distinct, but contrary to the Panel's apparent view, it does not mean that they are mutually
exclusive or necessarily sequ ential. In fact, in Boeing's current process for manufacturing the
777X, the wing never exists as a distinct component.
11. Lastly, of the two statements by the Governor of Washington, one deals with the siting of
production activities, and the other addresse s an earlier version of the legislation that framed the
contingency in terms of "wing fabrication" in addition to "wing assembly," which was not true of
the legislation that was ultimately enacted. Thus, neither is relevant to the question of whether
conditioning the B&O aerospace tax rate on the location of wing assembly makes it contingent on
the use of domestic over imported goods.
12. Below, Section II provides relevant background for the legal issues before the
Appellate Body, including undisputed facts and Panel findings regarding the Washington aerospace
industry, the elements of large civil aircraft (LCA), Boeing's development of the 777X and its 777X
manufacturing operations in Washington, the B&O aerospace tax rate, and the Panel's findings.
13. Section III lays out the proper legal standard for assessing claims under Article 3.1(b) of the
SCM Agreement.
14. Section IV explains that the Panel erroneously interpreted and applied Article 3.1(b) so as to
effectively prohibit subsidies conditional on the domestic siting of production activities – even
though it is clear from Article III:8(b) of the GATT 1994, inter alia, that such subsidies are not in
fact prohibited.

4 Panel Report, para. 7.320 (citing Appellate Body Report, Canada – Aircraft, para. 167; Appellate Body
Report, EC – Large Civil Aircraft, para. 1051).
5 Panel Report, para. 7.362.

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15. Section V explains that the Panel erred in the interpretation and application of Article 3.1(b)
by failing to evaluate whether Boeing uses domestic wings to manufacture the 777X.
16. Section VI explains that the Panel's reliance on hypothetical scenarios with no basis in fact
constitutes an erroneous interpretation and application of Article 3.1(b), or in the alternative, a
failure to make an objective assessment of the matter under Article 11 of the DSU.
17. Section VI I explains that the Panel 's finding regarding the operation of Washington law
constitutes a failure to make an objective assessment of the matter before it under Article 11 of
the DSU , as does the Panel's reliance on the word "or" in the Secon d Siting Provision and its
reliance on two statements by the Governor of Washington.

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ANNEX B-2
EXECUTIVE SUMMARY OF THE EUROPEAN UNION'S OTHER APPELLANT'S SUBMISSION
I. INTRODUCTION
1. Washington State enacted Engrossed Substitute Senate Bill 5952 ("ESSB 5952") in
November 2013,1 creating the largest targeted state tax break in United States history. This
legislation amended aerospace tax incentives originally created in 2003, including incentives
found to be WTO-inconsistent in the US – Large Civil Aircraft dispute, and extended them
through fiscal year 2040.
2. The Panel found that each of the seven tax incentives, as amended and extended by
ESSB 5952, constitutes a subsidy within the meaning of Article 1.1 of the Agreement on
Subsidies and Countervailing Measures ("SCM Agreement"). These subsidy findings have not
been appealed.
3. ESSB 5952 makes the amendment and extension of all of the subsidies c ontingent on
satisfying a condition the Panel referred to as the "First Siting Provision".2 Additionally, one
of these subsidies – the B&O aerospace tax rate reduction, in respect of Boeing's 777X – is
subject to a condition that the Panel referred to as t he "Second Siting Provision".3 The Panel
found that the two Siting Provisions, together, make the B&O tax rate reduction for Boeing's
777X de facto contingent on the use of domestic over imported goods, in violation of
Article 3.1(b) of the SCM Agreement.
4. The European Union appeals the Panel's findings that the European Union failed to
demonstrate that (i) the First Siting Provision, considered alone, makes the subsidies
subject to it contingent on the use of domestic over imported goods, and (ii) the
Second Siting Provision makes the B&O tax rate reduction for the 777X de jure contingent
on the use of domestic over imported goods.
II. THE PANEL ERRED IN F INDING THAT THE FIRS T SITING PROVISION D OES NOT
MAKE THE CHALLENGED AEROSPACE TAX SUBSIDIES CONTINGENT UPON THE USE
OF DOMESTIC OVER IMPORTED GOODS
5. Section 2 of ESSB 5952 provides that the entirety of the legislation, amending and
extending (through the year 2040) billions of dollars in tax breaks to the aircraft industry,
would take effect only upon Boeing 's decision to locate a new commercial aircraft
programme in Washington State, i.e., the First Siting Provision. In addition to the production
of the aircraft itself in Washington, the First Siting Provision requires that wings and
fuselages of the sited aircraft are manufactured in Washington State. The Washington State
Department of Revenue ("DOR") determined in July 2014 that this First Siting Provision had
been satisfied, based on Boeing's decision to produce the 777X in Washington State, and to
also manufacture the wings and fuselages of that aircraft there.
6. The European Union details several legal errors made by the Panel in finding that the
First Siting Provision, alone, does not make the tax incentives either de jure or de facto
contingent on the use of domestic over imported goods.

1 Engrossed Substitute Senate Bill 5952 ("ESSB 5952"), Exhibit EU-03.
2 ESSB 5952 § 2(1), Exhibit EU-03.
3 ESSB 5952 (exhibit EU-3), Sections 5 and 6; Panel Report, para. 7.32.

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A. The Panel erred in the interpretation and application of Article 3.1(b) of the
SCM Agreement in finding that the First Siting Provision does not make the
subsidies de jure contingent on the use of domestic over imported goods
7. In rejecting the European Union's principal claim of de jure contingency, in respect of the
First Siting Provision, the Panel erred in the interpretation and application of Article 3.1(b) of
the SCM Agreement.
8. First, the Panel interpreted Article 3.1(b) to mean that the relevant contingency would exist
only where the measure "per se and necessarily exclude{s} " any use of imported goods.
Under the Panel's interpretation, to the extent that the subsidy r ecipient may use some
imported goods in addition to domestic goods, and is nevertheless eligible for the subsidy,
the subsidy is not contingent on the use of domestic over imported goods. Such an
interpretation finds no support in Article 3.1(b), would def eat the object and purpose of that
provision, and is contradicted by the relevant context provided by Article 3.1(a) of the
SCM Agreement.
9. Second, the Panel's finding that the First Siting Provision does not, by necessary implication,
require the use of do mestic over imported goods constitutes an error in the application of
Article 3.1(b). The words in the First Siting Provision require the siting in Washington State
of "an airplane program " "in which" the aircraft itself is produced in Washington State, an d
"in which" the wings and fuselages of that same aircraft type are likewise manufactured in
Washington State. That is, according to the words and necessary implication of the
First Siting Provision, the aircraft program would not only include production o f an aircraft in
Washington State, but would also integrate in that aircraft the wings and fuselages that
must also be manufactured in Washington State.
10. In all possible interpretations envisaged by the Panel for the First Siting Provision, at least
some p roduction of the 777X must be undertaken in Washington State as a legal
requirement, and at least some 777X wings and fuselages must be, as a legal requirement ,
manufactured in Washington State. These dual requirements necessarily imply that the
aircraft produced in Washington State would use the wings and fuselages manufactured in
Washington State. Thus, the Panel should have found the contingency by necessary
implication. The Panel's finding to the contrary constitutes an error in the application of
Article 3.1(b).
11. The European Union requests the Appellate Body to reverse the Panel's finding and complete
the analysis to find that the First Siting Provision, considered alone, makes all of the
subsidies amended and extended by ESSB 5952 de jure contingent on the use of domestic
over imported goods.
B. Conditional appeal: The Panel erred in its interpretation of Article 3.1(b) of the
SCM Agreement , and failed to make an objective assessment of the matter
before it under Article 11 of the DSU, in finding that the First Siting Provision,
considered alone, does not make the subsidies de facto contingent on the use
of domestic over imported goods
12. The European Union appeals the Panel's finding that the First Siting Provision does not make
these subsidies de facto contingent on the use of domestic over imported goods. The
European Union requests the Appellate Body to consider this appeal only if it does not find
that the First Siting Provision, considered alone, makes all of the subsidies subject to it
contingent on the use of domestic over imported goods.
13. First, the Panel's finding of de facto contingency suffers from the same interpretative error
that the European Union demonstrated above, in relation to de jure contingency.4
14. Second, the Panel failed to make an ob jective assessment of the matter before it, under
Article 11 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes ( "DSU"). The Panel found that "the Department of Revenue 's determination

4 See paragraph 8, above.

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{that the First Siting Provision had been satisfied} was based exclusively on Boeing's
decision to locate a significant commercial airplane manufacturing programme ( as defined
by the legislation ) in the state of Washington ".5 The Panel also found that "{t}here {was}
no indication that the act ivation of the First Siting Provision was the result of any other
factor, such as a commitment by the manufacturer to use domestic over imported goods".6
15. In treating as conclusive the fact that Washington State law described the contingency as a
decision to locate "a significant commercial airplane manufacturing programme ", and that
the DOR used those terms in its determination, and by failing to properly consider the
implications of that contingency on Boeing 's incentives to use domestic over imported 777 X
wings or 777X fuselages in its Washington State production of the 777X, the Panel failed to
make an objective assessment of the matter before it.
16. The European Union explained that the dual requirements, under the First Siting Provision,
of producing the 777X in Washington State, and of manufacturing the wings and fuselages
of the same aircraft in Washington State, necessarily implied a requirement that domestic
wings and fuselages be used on the 777X. Given that the only confirming fact, outside the
text of the measure, that the Panel might have considered to arrive at that conclusion was
that aircraft producers are economically rational entities, the European Union considered
that a finding of de jure contingency was warranted. However, if the Panel consi dered that
the assertion that aircraft manufacturers are rational economic actors somehow fell outside
the purview of a de jure contingency claim, the Panel's analysis of the de facto contingency
claim would have been the place to accommodate that assertion.
17. In light of the errors demonstrated above, the European Union seeks the reversal of the
Panel's findings, and completion of the analysis to find that the First Siting Provision,
considered alone, makes the subsidies subject to it de facto contingent on the use of
domestic over imported goods, in violation of Article 3.1(b).
III. THE PANEL ERRED IN FINDING THAT THE SECOND SITING PROVIS ION,
CONSIDERED ALONE OR TOGETHER WITH THE FI RST SITING PROVISION , DOES
NOT MAKE THE B&O TAX RATE REDUCTION FOR T HE 777X DE JURE CONTINGENT
UPON THE USE OF DOMESTIC OVER IMPORTED GOODS
18. The Second Siting Provision provides that the B&O tax rate reduction subsidy would become
unavailable in respect of the aircraft program satisfying the First Siting Provision – the 777X
– if the DOR determines that "any final assembly or wing assembly " of the relevant aircraft
model "has been sited outside the state of Washington".
19. The Panel's finding that the Second Siting Provision does not create, de jure, a contingency
on using domestic ove r imported goods, is the result of errors in the interpretation and
application of Article 3.1(b), as well as a failure to make an objective assessment of the
matter, under Article 11 of the DSU.
20. First, as the European Union has already demonstrated above, in the context of the
First Siting Provision, the Panel erred in the interpretation of Article 3.1(b). 7 The Panel's
finding of lack of de jure contingency in respect of the Second Siting Provision was driven by
this same interpretative error.
21. Second, the United States admitted before the Panel that the Second Siting Provision,
properly interpreted, would deprive Boeing of the B&O tax rate reduction if the wings for the
777X were imported. This confirmation by the United States played a key role in the Pane l
subsequently making a finding of de facto contingency. This evidence would have been
critical in the assessment of de jure contingency, but the Panel entirely ignored it in its
de jure analysis. By imposing undue restrictions on the scope of evidence tha t it considered
permissible for the purpose of assessing de jure contingency, the Panel erred in the
application of Article 3.1(b).

7 See paragraph 8, above.

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22. Finally, the Panel failed to make an objective assessment, under Article 11 of the DSU , in
according to the Second Siting Provision an "interpretation" that neither Party advocated.
That "interpretation" is contradicted by the words of ESSB 5952, the critical admission made
by the United States, as well as the arguments put forth by both Parties. The Panel's finding
thus suffers from the lack of an evidentiary basis.
23. In light of these errors, the European Union seeks reversal of the Panel's finding, and
completion of the analysis to find that the Second Siting Provision, considered alone or
together with the First Siting Provision, makes the B&O tax rate reduction for the 777X
de jure contingent on the use of domestic over imported goods, in violation of Article 3.1(b).

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ANNEX B-3
EXECUTIVE SUMMARY OF THE EUROPEAN UNION'S APPELLEE'S SUBMISSION
I. INTRODUCTION
1. The Panel in the present dispute concluded that a subsidy (the B&O tax rate reduction for
the 777X) which would be available to Boeing so long as Boeing uses wings manufactured in
Washington State (including wings man ufactured by third parties in Washington State), but
would be lost if any imported 777X wings are used, is contingent on the use of domestic
over imported wings. On that basis, the Panel correctly found that the subsidy is
inconsistent with Article 3.1(b) of the Agreement on Subsidies and Countervailing Measures
("SCM Agreement"). The Panel's finding was based not just on the words of the measure at
issue, but also confirmed by other evidence that aided the Panel in interpreting those words
(i.e., admissions by the United States confirming the proper interpretation under domestic
law, and legislative history of the measure).1
2. In its Appellant's Submission, the United States expends significant effort and creativity to
convert what is a textbook example of a subsidy contingent upon the use of domestic over
imported goods (in this case, "wings"), within the meaning of Article 3.1(b), into a comple x
dispute requiring careful consideration of the peculiarities of the currently planned (but not
yet active) manufacturing process of the primary subsidy recipient, Boeing. But the Panel
correctly found that the focus in evaluating a claim under Article 3. 1(b) of the
SCM Agreement is "not on the production processes for the 777X ", but the "design,
structure, and modalities of operation" of the measure at issue.2
3. As detailed herein, however, a Member cannot defend a measure that, on its face (and in
view of confirmatory admissions by that Member) is contingent upon the use of domestic
over imported goods, by simply asserting that a subsidy recipient has not yet used those
goods, whether domestic or imported, or does not currently have plans to use such goods in
the future, whether domestic or imported. Indeed, it is the measure 's contingency, itself, at
the time the subsidy is granted, that can skew the subsidy recipients' incentives in a manner
that shapes its current or future plans on whether or not to use imported goods.
4. Regardless of whether the United States ' assertions about Boeing's plans for the production
of the 777X are factually accurate, the entirety of the US appeal rests on a deeply flawed
reading of the word "use". According to the United States, Boeing can be considered to "use"
a wing only if it first fully assembles a wing, and then attaches that wing to the fuselage of
the aircraft. Under the US ' theory, if Boeing employs a slightly different process, such as
attaching one part of the wing to the fuselage first, and then finishing the wing (regardless
of how little additional work is required), then no "use" of a wing occurs. As the
European Union details below, this interpretation of the term "use", which makes the
WTO-consistency of a meas ure dependent on the sequence in which a subsidy recipient
turns certain screws, is erroneous.
5. As for the United States ' attempts throughout its Appellant's Submission to characterise the
Panel's finding of de facto contingency as reflecting an interpretat ion of Article 3.1(b)
prohibiting subsidies contingent on the location of production activities (regardless of
whether they are contingent on the use of domestic over imported goods), 3 this is
contradicted by the Panel's clear explanations to the contrary.
6. Before turning to the United States ' allegations of error, the European Union notes that the
United States dedicates 19 pages, of its 56 -page Appellant 's Submission, to a section
entitled "Background".4 This section is filled with numerous factual assert ions that are

1 Panel Report, paras. 7.361-7.367.
2 Panel Report, para. 7.355.
4 US Appellant's Submission, pp. 4-23.

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neither factual findings by the Panel nor undisputed. Many of these factual assertions are
also entirely irrelevant to the present appeal. This attempt at re -litigating, on appeal, purely
factual matters on which the United States failed to convince the Panel, must fail.
7. Below, the European Union responds to each of the specific allegations of error that the
United States raises in its Appellant's Submission.
II. THE UNITED STATES' A SSERTIONS RELATING T O "PRODUCTION SUBSIDIES " DO
NOT REVEAL AN ERROR IN INTERPRETATION OR APPLICATION OF ARTICLE 3.1(B)
8. The United States argues that the Panel erroneously interpreted and applied Article 3.1(b) of
the SCM Agreement, and characterises the Panel 's application/interpretation as effectively
prohibiting any subsidies conditional on domestic manufacturing.5
9. The European Union, and the Panel, agreed with the United States that a subsidy contingent
solely on domestic production of goods, without more, is not disciplined by Article 3.1(b). 6
Specifically in the context of de facto contingency, the Panel clarified that "provision of
subsidies exclusively to domestic producers, without more, is not in itself a breach of the
obligations under the covered agreements ".7 Thus, the Panel made no err or in
interpretation.
10. As for application, the Panel examined whether the subsidy was contingent on the use of
domestic over imported goods. Having reviewed the evidence before it, the Panel found that
"the only decision by Boeing to source wings which it would then 'use' in producing the 777X
that would not trigger the Second Siting Provision would be to source such wings within
Washington State, which by definition would be domestic wings ".8 Therefore, it was
abundantly clear to the Panel that the subsidy was conditioned solely on the origin of the
wings used on the 777X. In this context, the Panel was right in rejecting the United States '
unilateral characterisation of the subsidy as a "production subsidy ", and finding that the
subsidy was inconsistent with Article 3.1(b).
III. THE UNITED STATES' A SSERTIONS REGARDING THE PLANNED 777X PRO DUCTION
PROCESS DO NOT REVEAL ANY ERROR IN THE PANEL'S FINDINGS
11. The United States alleges that the Panel failed to evaluate whether Boeing 's intended
production process for the 777X will involve the "use" of wings.9 The United States begins
this appeal with an allegation of error in application of Article 3.1(b), expands the allegation
to include an error in interpretation of Article 3.1(b), and finally alleges error under
Article 12.7 of the DSU. All of these allegations are baseless.
A. The US assertions about Boeing's intended production process are based on a
flawed interpretation of "use", and are not dispositive of the "contingency"
analysis
12. The focus of analysis in adjudicating a claim under Article 3.1(b) is the subsidy measure, not
the recipient. In this context, the Panel was right in finding that "{t}he focus of the Panel's
analysis, for the purpose of the current dispute, is not on the production processes for the
777X, in general or at any point in time, but rather on whether the measures at issue, in
their design, structure, and modalities of operation, would limit access to existing subsidies
if imported goods were to be used in any such processes".10
13. The United S tates repeatedly makes claims regarding the "current production process " for
the 777X. Yet, it is entirely meaningless to speak of "Boeing's current 777X production
process". It is undisputed that no 777X wing or 777X aircraft production even began during

5 US Appellant's Submission, Section IV.
6 Panel Report, paras. 7.201, 7.357.
7 Panel Report, para. 7.357.
8 Panel Report, para. 7.364.
9 US Appellant's Submission, Section V.
10 Panel Report, para. 7.355.

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the course of the Panel proceedings. Thus, the US assertions must relate only to Boeing 's
alleged intentions regarding the production process.
14. The United States alleges that these intended production processes do not involve the "use"
of a wing. The US' position translates into an assertion that Boeing would "use" wings within
the meaning of Article 3.1(b) only if it first finishes the manufacture of complete wings, and
then attaches them to the fuselage of the 777X. 11 If Boeing alters this production proces s
such that one part of the wing is attached to the fuselage first, and then the remaining
components of the wing (however small or insignificant) are attached to that first part, no
"use" of a wing occurs.12
15. As illustrated in the figure below, imagine an a ircraft wing consists of two rectangular
pieces, A and B. If A and B are first screwed together, and then B (with A attached) is
screwed on to the fuselage, the United States would consider this "use" of a wing. On the
other hand, under the US position, if B is first screwed on to the fuselage, and then A is
screwed on to B, no "use" of a wing occurs. In this way, the order in which these screws are
turned would be "dispositive" as to whether a subsidy, which would become unavailable
upon importation of any wings, is consistent with Article 3.1(b).
 "Use" of wings as an "input" No "use" of wings; wings are part of
"output"
Step 1

Step 2

Step 3

16. Nothing in the words of Article 3.1(b) supports the view that a good must be "use{d}",
within the meaning of that provision, at a particular point of an overall production process.
Such an interpretation, if accepted, would defeat the object and purpose of Article 3.1(b),
making it easy for Members to circumvent the discipline. Under the US position, if a Member
were found to have violated Article 3.1(b), achieving compliance would merely require
convincing a subsidy recipient to alter the sequence in wh ich it undertakes assembly
activities.

11 See US Appellant's Submission, para. 115.
12 Ibid.

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17. Additionally, the word "contingent" in Article 3.1(b) does not cover only those subsidies that
are available exclusively to entities that use domestic over imported goods. When faced with
a claim under that provision, the responding Member cannot defeat that claim by simply
demonstrating that the subsidy is available to some entities that do not use domestic goods,
or in some circumstances where such use does not occur.
18. Thus, the United States errs in asserting that B oeing's production plan does not involve the
"use" of wings. Even if that assertion were true ( quod non), it would not be "dispositive" on
the question of contingency.
B. The Panel's finding that wings made in Washington State are "domestic" is not
in error
19. The Panel interpreted and applied the word "domestic" in Article 3.1(b), in finding that wings
manufactured in Washington State would be "domestic". The United States alleges error in
the interpretation and application of Article 3.1(b), and under Article 12.7 of the DSU.
20. The United States fails to offer any legal arguments in support of its allegation of error in
interpretation. This appeal therefore fails to meet the requirement in Rule 21(2)(b)(i) of the
Working Procedures for Appellate Review, and must fail.
21. In any event, the words used in Article 3.1(b) support the interpretation that "domestic"
means "not imported ". Under this proper interpretation, any wings made in Washington
State are domestic wings. Thus, the Panel did not err in the interpretat ion or application of
Article 3.1(b).
22. The brevity of the Panel's treatment of this issue does not constitute error under Article 12.7
of the DSU. Nothing in Article 12.7 requires a panel to elaborate the reasons behind each of
its intermediate findings. Th e requirement is that a panel should inform the responding
Member about "(i) what must be done in order to implement the eventual rulings and
recommendations made by the DSB; and (ii) whether and what to appeal".13 Here, the Panel
provided the United States adequate information for both implementation and appeal. The
Panel's approach is consistent with practice of WTO panels and the Appellate Body. Not a
single panel adjudicating claims under similar provisions, where "domestic" goods, "imported
goods" or "products of the territory " of a Member are relevant, has ever identified specific
goods and extensively examined the make -up of those goods in order to determine whether
they were "domestic", "imported", or "products of the territory " of a specific Member. The
Panel's approach was further justified by the United States' failure to allege that wings made
in Washington State were not "domestic".
IV. THE PANEL'S USE OF HYPOTHETICAL SCENARIOS WAS APPROPRIATE
23. The United States takes issue with the Panel's use of hypothetical scenarios in assessment of
de facto contingency.
24. The logical way for the Panel to test whether the Second Siting Provision includes a
contingency on use of domestic over imported wings was to examine what would happen in
a scenario where Boeing, in the future, chooses to use imported wings, rather than domestic
wings. This enquiry is necessarily hypothetical in nature, because the production process of
the 777X is yet to commence, and the Second Siting Provision is yet to be triggered.
25. Article 3.1(b) "protects competitive opportunities of imported products, rather than existing
trade flows of such products ".14 In assessing a claim under a provision of that type, "the
analysis … is not limited to an exa mination of the operation of the {subsidy} at issue within
the confines of scenarios that are representative of current patterns of trade".15
26. The Panel's use of hypothetical scenarios was thus not only permissible, but also inevitable.

13 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 107.
14 Panel Report, para. 7.225.
15 Appellate Body Reports, US – COOL (Article 21.5 – Canada and Mexico), para. 5.17.

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V. THE UNITED STATES DOES NOT DEMONSTRATE ANY FAILURE BY THE P ANEL TO
MAKE AN OBJECTIVE ASSESSMENT, UNDER ARTICLE 11 OF THE DSU
27. The United States alleges multiple errors under Article 11 of the DSU. Each of these is
baseless.
28. The first appeal in this series 16 improperly seeks to modify or retract the US ' confirmatory
admissions made in response to Panel Questions 40 and 80. These admissions confirmed
that the subsidy would continue to be available as long as Boeing uses domestic wings
(including those manufactured by third parties), but would become unavailable if wings were
imported. The US assertions on appeal are contradicted by the responses that the
United States offered to the Panel.
29. The second appeal 17 is conditional on the Appellate Body finding that the Panel understood
the word "or" in the Second Siting Provision to require the sequential undertaking of wing
assembly and final assembly. The Panel made no such finding. Rather, the Panel found that
none of the Siting Provisions "either explicitly or in their operation, binds Boeing to a specific
process for manufacturing 777X aircraft".18 Thus, there is no basis for the Appellate Body to
consider the substance of this appeal.
30. In the third appeal in this series, 19 the United States takes issue with the Panel 's
appreciation of the Washington State Governor 's statements. The United States seeks to
simply re -litigate the meaning and relevance of the Governor 's statements. These US
disagreements with the Panel 's factual findings do not evidence any error under Article 11.
In any event, the Panel 's finding of de facto contingency was only confirmed by, not based
on, the Governor's statements.
31. Finally, the United States' factual assertions about the "Section 12 Sub -Assemblies"20 are
irrelevant. In this section, the United States makes no allegation of error. As such there
simply is no "appeal" for the Appellate Body to adjudicate.

16 US Appellant's Submission, Section VII.A.
17 US Appellant's Submission, Section VII.B.
18 Panel Report, para. 7.355.
19 US Appellant's Submission, Section VII.C.
20 US Appellant's Submission, Section VII.D.

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ANNEX B-4
EXECUTIVE SUMMARY OF THE UNITED STATES' APPELLEE'S SUBMISSION
1. The Panel correctly found that neither the First Siting Provision nor the Second Siting
Provision makes the 0.2904 percent Business and Occupation tax rate (the "B&O aerospace tax
rate"), as extended into 2040, de jure contingent on the use of domestic ove r imported fuselages
or wings. The Panel also correctly found that the First Siting Provision does not make the subsidy
de facto contingent on the use of domestic over imported fuselages or wings.
2. The EU's appeal of these findings raises technical argument s, which themselves are
meritless. But perhaps more importantly, in arguing that the two siting provisions create a
prohibited import -substitution subsidy, the EU fundamentally misunderstands the nature of the
measure at issue. The extension from 2024 to 2 040 of the tax treatment that was found to be a
subsidy was aimed at the employment and related economic activities associated with siting
manufacturing activity in the grantor's territory. It simply did not concern the "use" of "goods,"
whether domestic or imported, within the meaning of Article 3.1(b) of the Agreement on Subsidies
and Countervailing Measures ("SCM Agreement").
3. Article III:8(b) of the General Agreement on Tariffs and Trade 1994 ("GATT 1994 ")
establishes that production subsidies ( i.e., subsidies paid exclusively to producer of a good in the
grantor's territory) are not inconsistent with the provisions of the GATT 1994 and the
SCM Agreement that prohibit conditioning a subsidy on the use of domestic over imported goods
as a condition for a subsidy. Just as the SCM Agreement, read together with Article III:8(b) of the
GATT 1994, does not preclude production subsidies (assuming they do not cause adverse effects),
it does not preclude a Member from defining the scope or extent of the production activity
necessary to receive the subsidy, and thereby defining who qualifies as a domestic producer. If a
Member provides subsidies to domestic airplane producers, it can define what it means to produce
an airplane and, therefore, who qualifies as a domes tic airplane producer. To find otherwise would
be to severely limit the discretion protected by Members in Article III:8(b) of the GATT 1994 and
which informs the interpretation of Article 3.1(b) of the SCM Agreement.
4. The panel in EC – Large Civil Aircraft (21.5) recognized as much when it found that subsidies
requiring the production of A350 XWB components in the EU as well as production of the
A350 XWB airplane in the EU did not breach Article 3.1(b).
5. The siting conditions in Engrossed Substitute Senate B ill 5952 ("ESSB 5952") aimed only at
ensuring that the manufacturing activity Washington sought was indeed sited in Washington. As
such, it falls squarely within Article III:8(b).
6. The basis for finding a breach of Article 3.1(b) of the SCM Agreement in this dispute is far
weaker than in EC – Large Civil Aircraft (21.5) , where the panel found that Article 3.1(b) did not
prohibit the EU from requiring the production of certain A350 XWB parts – which were
unquestionably inputs – along with the finished A350 XWB in the territory of the EU. Here, the
measure at issue does not even require the production of parts in the grantor's territory.
7. The First Siting Provision ensured that the extension of the B&O aerospace tax rate would
only take effect i f a manufacturer sited a new commercial airplane program in Washington. The
Second Siting Provision ensured that, as time progressed, the relevant manufacturer would not
site the wing assembly and final assembly associated with that program somewhere else.
8. These conditions have nothing to do with disciplining the use of goods. There are millions of
parts that go into an LCA, and this measure is silent with respect to the domestic or imported
character of all of them.
9. Because fuselages and wings are struct ural elements that can be identified on a finished
airplane, merely referring to fuselages and wings says nothing meaningful about how an airplane
will be manufactured or what inputs will be used in that process. For the 777X, fuselages and

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wings are simpl y elements of the output of Boeing's production process. Again, the most
fundamental way to describe the main elements of a commercial airplane is with reference to its
fuselage and wings. Boeing remains free to have the millions of components or parts pro duced
wherever it chooses.
10. Because the extended B&O aerospace tax rate with respect to the manufacture and sale of
the 777X is conditioned only on the location of production activities, and not on the use of goods,
it is not contingent on the use of domes tic over imported goods within the meaning of
Article 3.1(b). This is what the panel found in EC – Large Civil Aircraft (21.5) , and this
interpretation of Article 3.1(b) should be confirmed in this appeal.
11. The EU's arguments throughout its Other Appellant Submission erroneously assume the
"use" of fuselages and wings. In Section II, the United States demonstrates that, under the proper
interpretation of the term "use," airplane manufacturing does not necessarily involve the "use" of
fuselages and wings. The United States further shows that there is nothing inherent to LCA
manufacturing that requires that fuselages or wings be produced as separate articles and then
used as inputs in downstream production of airplanes.
12. In Section III, the United States demons trates that the Panel did not err in interpreting and
applying Article 3.1(b) in finding that the First Siting Provision does not make the B&O aerospace
tax rate for the 777X de jure contingent on the use of domestic over imported goods. The EU is
also wro ng that the Panel misapplied Article 3.1(b) because, according to the EU, under any
scenario, domestic goods must be used for at least some period of time. As the Panel found, the
First Siting Provision calls for a one -time determination regarding a decisi on to site manufacturing
activities in Washington that occurred prior to the use of any goods. It placed no requirements on
the use of goods.
13. In Section IV, the United States demonstrates that the Panel did not err in the interpretation
of Article 3.1(b) or fail to make an objective assessment in finding that the First Siting Provision is
not de facto contingent on the use of domestic over imported goods. There are no undisputed facts
or Panel factual findings that even suggest that the First Siting Provis ion contains a prohibited
contingency.
14. In Section V, the United States demonstrates that the Panel did not err in finding that the
EU failed to establish that the Second Siting Provision contains a de jure prohibited
import-substitution contingency. As the Panel found, the Second Siting Provision is silent as to the
use of goods. It merely refers to the siting of production activities. Contrary to the EU's appeal, the
Panel did not interpret Article 3.1(b) as requiring the use of exclusively domestic goods . Nor did
the Panel improperly fail to consider a supposed U.S. "admission or to make an objective
assessment in reaching its de jure finding. The EU's argument to the contrary merely re -packages
its complaint that the erroneous conclusion reached in the P anel's de facto analysis should have
informed the Panel's de jure analysis.

- C-1 -

ANNEX C
ARGUMENTS OF THE THIRD PARTICIPANTS
Contents Page
Annex C-1 Executive summary of Australia's third participant's submission C-2
Annex C-2 Executive summary of Brazil's third participant's submission C-4
Annex C-3 Executive summary of Canada's third participant's submission C-5
Annex C-4 Executive summary of China's third participant's submission C-6
Annex C-5 Executive summary of Japan's third participant's submission C-7

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ANNEX C-1
EXECUTIVE SUMMARY OF AUSTRALIA'S THIRD PARTICIPANT'S SUBMISSION
1. This dispute addresses important distinctions between a subsidy which is prohibited for
being issued contingent on the use of domestic over imported goods, and a subsidy which is
issued to incentivise an activity taking place in a particular location.
2. Australia supports the Panel's finding that the first siting provision does not, of itself, make
any subsidy contingent upon the use of domestic over imported goods. 1 Australia regards
the second siting provision as one which may possibly be contingent upon the use of
domestic over imported goods.
I. THE FIRST SITING PROVISION ONLY DESCRIBES AN ACTIVITY
3. Australia supports the Panel's description of the legal tests fo r de jure and de facto
contingency. De jure contingency is to be found, according to the Appellate Body in
Canada – Autos where the condition "is set out expressly, in so many words, on the face of
the law, regulation or other legal instrument … [or] is c learly, though implicitly, in the
instrument comprising the measure ."2 In Australia's view, the first siting provision does not
make any subsidy contingent, de jure, on the use of domestic over imported goods. All it
does is incentivise an activity taking place in a particular location.
4. According to the Appellate Body in EC and certain member States – Large Civil Aircraft ,
de facto contingency is to be "inferred from the total configuration of the facts constituting
and surrounding the granting of the subsidy."3 In Australia's written submission to the Panel,
Australia encouraged the Panel to "clarify whether the beneficiary of the tax incentive would
receive benefits for manufacture and assembly regardless of the source of the inputs to
manufacture and asse mbly." As the Panel found, the total configuration of facts in this
instance show that the recipient of the subsidy could relocate their manufacturing processes
without losing access to the tax incentives under the first siting provision.4
5. Australia therefore regards the first siting provision as a description of an activity. It does
not make a subsidy contingent on the use of domestic over imported goods. Subsidies which
incentivise an activity, absent other elements, are permitted under the Agreement on
Subsidies and Countervailing Duties (SCM). Article III(8) of GATT provides helpful guidance
to interpreting the SCM, and makes it clear that subsidies which only encourage local
activities are permitted. The effect of Articles 1, 8.2(b) and 25.2 of the SCM also help
demonstrate that a subsidy which does nothing more than encourage an activity is
permitted under the SCM. Where these subsidies cause adverse effects, a WTO Member
could still challenge them, but it is appropriate to alter the distinction between a finding of
adverse effects and contingency.5
II. THE SECOND SITING PR OVISION MAKES A S UBSIDY CONTINGENT ON THE USE OF
DOMESTIC OVER IMPORTED GOODS
6. In contrast, in Australia's view, the second siting provision may establish contingency of a
subsidy upon the use of domestic goods. The US advised that if a wing was assembled
outside of Washington State, the siting provision would be triggered, and a subsidy would be
lost.6 This could equate to prohibited contingency, but could also just acknowledge that

1 Panel Report, US – Conditional Tax Incentives For Large Civil Aircraft, para. 7.311.
2 Appellate Body Report, Canada – Autos, para. 100.
3 Appellate Body Report, EC – Large Civil Aircraft, para. 1046, quoting Appellate Body Report,
Canada – Aircraft, para. 1038.
4 Panel Report, US – Conditional Tax Incentives For Large Civil Aircraft, para. 7.291.
5 Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1054, has warned
against blurring the lines between actionable and prohibited subsidies.
6 Panel Report, US – Conditional Tax Incentives For Large Civil Aircraft, para. 7.362.

- C-3 -

subsides are only paid to Boeing where it undertakes an activity – assembly of wings and
aircraft in Washington State.
III. CONCLUSION
7. Australia notes that it is important to recognise the rights of WTO Members to provide
certain subsidies to domestic manufa cturing activities. In light of this, Australia agrees with
the Panel that the first siting provision does not, of itself, offer subsidies contingent on the
use of domestic over imported goods. 7 Rather, the first siting provision just incentivises an
activity taking place in a particular place. With regards to the second siting provision,
Australia considers that there are questions regarding whether there is a requirement to use
domestic over imported goods.

7 Panel Report, US – Conditional Tax Incentives For Large Civil Aircraft, para. 7.311.

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ANNEX C-2
EXECUTIVE SUMMARY OF BRAZIL'S THIRD PARTICIPANT'S SUBMISSION
1. Brazil's submission deals with three main issues: (i) the Panel 's interpretation of prohibited
import substitution sub sidies under the SCM Agreement, (ii) the Panel 's findings on that
"by necessary implication " subsidies are de jure contingent on the use of domestic over
imported goods, and (iii) the proper interpretation of the term "use" under Article 3.1(b) of
the SCM Agreement.
2. With regard to the first issue, the SCM Agreement does not prevent a Member from
conditioning the provision of a subsidy on the performance of production steps in the
country granting the subsidy. It is not because a subsidy is granted upon a re quirement to
perform locally certain production steps related to different stages of the production chain
that a subsidy should be considered ipso facto a subsidy contingent upon the use of
domestic product.
3. On the second , the key question in order to asse ss the existence of de jure contingency is
whether by necessary implication the requirements establish or create any condition
favoring domestic or imported goods as the source of the components used in the
production process. Just as in the distinction be tween production and product, the
contingency under Article 3.1(b) of the SCM Agreement must be established upon the actual
use of the domestic content to the detriment of the imported content , not in relation to "any
domestic transaction" it may entail.
4. On the concept of "use", Brazil understands that the sourcing of the input rather than its
production determines the import substitution contingency, which is made clear by the term
"use". Article 3.1(b) prohibits the contingency upon the use of finished do mestic products,
even if they are inputs used in the production of final goods, not upon the production of
domestic products.

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ANNEX C-3
EXECUTIVE SUMMARY OF CANADA'S THIRD PARTICIPANT'S SUBMISSION1
1. In Canada's view, the Panel properly interpreted Article 3.1(b) of the SCM Agreement as not
prohibiting subsidies contingent on the recipient siting manufacturing activities in the territory of
the subsidizing Member. In addition, the Panel properly recognized that Article 3.1(b) do es not
prohibit subsidies that require the recipient to produce both intermediate goods (e.g. wings or
fuselages) and finished goods (e.g. commercial airplanes). Even though the specialized nature of
the intermediate goods at issue in this case made it lik ely that they would be used in the
production of finished aircraft, the Panel did not equate a requirement to site the manufacturing of
intermediate and finished goods in Washington with a requirement to use intermediate goods in
the production of finished goods within the meaning of Article 3.1(b).
2. The ability of a Memb er to require a subsidy recipient to produce both intermediate and
finished goods, even highly specialized goods, logically flows from that Member's ability to provide
subsidies exclusively to domestic producers. If a Member may provide subsidies exclusively to
domestic producers, it must also be able to condition receipt of the subsidy on the recipient
producing both intermediate a nd finished goods. If this were not so, a Member 's ability to
condition the provision of a subsidy on a production requirement would be significantly curtailed –
it would only be able to condition the provision of a subsidy on the simple assembly of goods.

1 Canada's Third-Participant Submission consists of 1,996 words. This Executive Summary consists of
235 words.

- C-6 -

ANNEX C-4
EXECUTIVE SUMMARY OF CHINA'S THIRD PARTICIPANT'S SUBMISSION
1. In the present dispute, China has a systemic interest in the interpretation and application of
Article 3.1(b) of the SCM Agreement:
2. Firstly, the assessment of de jure contingency of prohibited subsidy under Article 3.1(b) of
the SCM Agreement shall be made with caution. The Panel has established a test for "necessary
implication", i.e., an implication is not the necessary implication as long as there are other
interpretations available. China wishes to stress that an "implication" of a legal text shall be
inevitable implication and shall not be mixed with the facts as to operation of the measure.
Moreover, the "inevitable interpretation" can be rebutted if the defendant can show there are other
interpretations available.
3. Secondly, Article III:8(b) of the GATT 1994 does not preclude a subsidy measure from being
found inconsistent with Article 3.1(b) of the SCM Agreement . Even if a measure meets the
requirements set by Article III:8(b) of the GATT 1994 and constitutes as a production subsidy, it is
not exempted from the disciplines provided by Article 3.1(b) of the SCM Agreement.
4. Thirdly, uniqueness of certain input shall be an element to be considered in the assessment
of de facto contingency under Article 3.1(b) of the SCM Agreement. China considers that the
existence of de facto contingency in the present dispute might be partly due to the uniqueness of
the input, i.e., wings and fuselage. C hina believes that whether a subsidy contingent on the
location of input production constitutes a de facto prohibited subsidy, shall be examined on a case-
by-case basis.

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ANNEX C-5
EXECUTIVE SUMMARY OF JAPAN'S THIRD PARTICIPANT'S SUBMISSION
1. Japan requests the Appellate Body to examine (i) whether the Panel found, with cogent
reasons and appropriate evidence, that the measure was indeed de facto contingent upon
the use of domestic over imported goods, (ii) without unnecessarily derogating f rom the
ordinary meaning of the terms, "use", "domestic" and "good".
A. "Contingency"
2. Japan agrees with the Panel taking note of the Appellate Body 's findings that " contingency"
has the same meaning in Articles 3.1(a) and 3.1(b) of the SCM Agreement.1
3. In c ase of de facto contingency, the Appellate Body has concluded that the contingency
must be established on the basis of objective evidence 2 and by assessing the subsidy itself3,
rather than by relying on subjective intent.4
4. Japan considers that if a subsidy-scheme has been designed not to be terminated as long as
a long -term commitment of the subsidized investment is maintained regardless of the
circumstances, including when imported goods are used in the production, then the local
production requirement appears not to be contingent upon the use of domestic products.5
B. "Use" of a "domestic" "good"
5. The text of Article 3.1(b) refers to a contingency upon the "use" of domestic over imported
goods. The position of the US appears unduly restrictive and co nfines the term "use" to the
phrase "use of purchased products from another entity".
6. The Panel added that "… the goods in question must be at least potentially tradable". Japan
has systemic concerns with this interpretation of "goods" by the Panel 6 not least because
neither the words "potentially tradable" nor "tradable" form part of the text of the
SCM Agreement whatsoever. Such interpretation limiting the meaning of a "good" would
open up an easy path for circumvention of the disciplines under Article 3.1(b).
7. "{D}omestic over imported goods" in Article 3.1(b) suggests that the term "domestic" refers
to any good that itself is not imported.
C. Irrelevance of GATT III:8(b) to this dispute
8. While Japan agrees that GATT Article III:8(b) could in some si tuations provide relevant
context for the interpretation of Article 3.1(b)7, this cannot diminish or curtail the prohibition
contained in Article 3.1(b).

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ANNEX D
PROCEDURAL RULINGS
Contents Page
Annex D-1 Procedural Ruling of 22 December 2016 regarding additional procedures to
protect business confidential information (BCI)
D-2
Annex D-2 Procedural Ruling of 6 January 2017 regarding the United States' request to
modify the deadline for filing its appellant's submission
D-9
Annex D-3 Procedural Ruling of 2 June 2017 regarding public observation of the opening
statements at the oral hearing
D-11

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ANNEX D-1
PROCEDURAL RULING OF 22 DECEMBER 2016
1. On 16 December 2016, the Chair of the Appellate Body received a joint letter from the
participants in these appellate proceedings, the European Union and the United States, requesting
the Appellate Body Division hearing this appeal to adopt additional procedures to protect business
confidential information (BCI) included in the record of this dispute. In their letter, the
European Union and the Un ited States proposed that the additional procedures adopted by the
Appellate Body in the appeal in European Communities and Certain Member States – Measures
Affecting Trade in Large Civil Aircraft – Recourse to Article 21.5 of the DSU by the United States
(DS316), with adjustments to remove references to highly sensitive business information (HSBI),
form the basis for any procedural ruling on confidentiality in these appellate proceedings.
2. The European Union and the United States argued that BCI procedures are needed in these
proceedings to avoid the undue risk of detrimental disclosure of particularly sensitive confidential
information provided by the United States to the Panel. Such information pertains to The Boeing
Company (Boeing), a US manufacturer of large civil aircraft, notably in relation to the production
process and the selection of suppliers and a manufacturing site for Boeing's 777X program.
Drawing an analogy with the types of confidential information included in the records in the
original and compliance proceedings in EC and certain member States – Large Civil Aircraft, as well
as in the original proceedings in United States – Measures Affecting Trade in Large Civil Aircraft
(Second Complaint) (DS353), and which have been protected by BCI/HSBI procedures adopted at
the appellate stage of these proceedings, the European Union and the United States submitted
that additional procedures to protect BCI are required in this appeal because the disclosure of
certain sensitive information on the Panel r ecord to unauthorized persons not entitled to the
information would be prejudicial to Boeing and to the United States. The European Union and the
United States further noted the need to balance the risk of prejudicial disclosure of sensitive
business infor mation against the rights and interests of third participants and the WTO
membership at large, taking into account due process and the need to preserve the
Appellate Body's ability to discharge its mandate. They submitted that the proposed procedures
would strike the appropriate balance in this regard.
3. Also on 16 December 2016, and on behalf of the Division hearing this appeal, the Chair of
the Appellate Body invited the third parties in this dispute to comment in writing on the joint
request of the European Union and the United States by 12 noon on Tuesday, 20 December 2016.
The Chair also informed the participants and the third parties that the Division had decided to
provide interim additional protection to all BCI transmitted to the Appellate Body in this dispute on
the terms set out below:
a. Only Appellate Body Members and Appellate Body Secretariat staff assigned to work on
this appeal may have access to BCI contained in the Panel record pending a final
decision on the joint request. Appellate Body Member s and Appellate Body Secretariat
staff shall not disclose BCI, or allow BCI to be disclosed to any person other than those
identified in the preceding sentence.
b. BCI shall be stored in locked cabinets when not in use. When in use by Appellate Body
Members and assigned Appellate Body Secretariat staff, all necessary precautions will be
taken to protect the confidentiality of the BCI.
c. Pending a decision on the joint re quest for the protection of BCI in these proceedings,
BCI shall not be transmitted electronically, whether by e-mail, facsimile, or otherwise.
4. On Tuesday, 20 December 2016, written comments were received from Australia. Noting
that the additional procedure s proposed by the European Union and the United States largely
reflect those that were adopted to protect BCI in the appellate proceedings in EC and certain
member States – Large Civil Aircraft (Article 21.5 – US), Australia indicated that it did not objec t
to the joint request, provided that the proposed procedures are not implemented in a manner that
unduly restricts the ability of third participants to gain reasonable access to information. Australia

- D-3 -

further requested the Appellate Body to take account o f the complexity of this matter and to set
the timetable for this appeal so as to enable meaningful participation by third participants in the
proceedings.
5. The Division makes its ruling having considered the arguments made by the European Union
and the United States in support of their request, and the comments received from Australia.
6. As an initial matter, we recall that the Appellate Body adopted additional procedures to
protect the confidentiality of sensitive information in the original and compliance p roceedings in
EC and certain member States – Large Civil Aircraft and in the original proceedings in US ‒ Large
Civil Aircraft (2 nd complaint). In this appeal, the participants have suggested that the additional
procedures adopted by the Appellate Body in the ongoing appellate proceedings in EC and certain
member States – Large Civil Aircraft (Article 21.5 – US) should form the basis for any procedural
ruling on confidentiality, with adjustments to remove references to HSBI, since neither party
submitted HSBI to the Panel in this dispute . In the Procedural Rulings adopted in the original and
compliance proceedings in EC and certain member States – Large Civil Aircraft and the original
proceedings in US – Large Civil Aircraft (2 nd complaint), the Appellate Body explained the
considerations relevant to a decision on whether to provide additional protection to certain
sensitive information.1 We believe that similar considerations are relevant to our evaluation of the
request made by the European Union and the United States in this appeal, and we briefly recall
them before addressing the specific points raised in the joint request and in the comments of
Australia.
7. The confidentiality requirements set out in the Understanding on Rules and Procedures
Governing the Settlement of Disputes (DSU) and in the Rules of Conduct for the Understanding on
Rules and Procedures Governing the Settlement of Disputes 2 (Rules of Conduct) are stated at a
high level of generality that may need to be particularized in situat ions in which the nature of the
information provided requires more detailed arrangements to protect the confidentiality of that
information. The adoption of such arrangements falls within the authority of the Appellate Body to
hear the appeal and to regula te its procedures in a manner that ensures that the proceedings are
conducted with fairness and in an orderly manner. To the extent that the arrangements elaborate
on the confidentiality requirements of the DSU, the adoption of such arrangements in an
"appropriate procedure" needs to conform to the requirement in Rule 16(1) of the
Working Procedures for Appellate Review3 (Working Procedures) that any such procedure may not
be inconsistent with the DSU, the other covered agreements, or the Working Procedures
themselves.
8. Additional confidentiality protection implicates the authority of the Appellate Body and the
rights and duties of the participants, third participants, and the WTO membership at large. The
determination of whether such protection is warranted and, if so, of the particular arrangements
that are appropriate in a given case essentially involves a balancing exercise: the risks associated
with the disclosure of the information sought to be protected must be weighed against the degree
to which the particular arrangements affect the rights and duties established in the DSU, the other
covered agreements, and the Working Procedures. Furthermore, a relationship of proportionality
must exist between the risks associated with disclosure and the measures ado pted. Participants
requesting particularized arrangements have the burden of justifying that such arrangements are
needed in a given case to protect certain information adequately, taking into account the rights
and duties recognized in the DSU, the other covered agreements, and the Working Procedures.
This burden of justification will increase the more the proposed arrangements affect the exercise
by the Appellate Body of its adjudicative duties, the exercise by the participants of their rights to
due process, the exercise by the third participants of their participatory rights, and the rights and
systemic interests of the WTO membership at large.

1 See Appellate Body Reports, EC and certain member States – Large Civil Aircraft, WT/DS316/AB/R,
Annex III – Procedural Ruling and Additional Procedures to Protect Sensitive Information, paras. 7-13, and
United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS353/AB/R,
Annex III – Procedural Ruling and Additional Procedures to Protect Sensitive Information, paras. 8-9. See also
EC and certain member States – Large Civil Aircraft (Article 21.5 – US), Procedural Ruling of the
Appellate Body dated 25 October 2016, paras. 10-11.
2 The Rules of Conduct, as adopted by the DSB on 3 December 1996 (WT/DSB/RC/1), are incorporated
into the Working Procedures for Appellate Review (WT/AB/WP/6), as Annex II thereto. (See WT/DSB/RC/2,
WT/AB/WP/W/2)
3 16 August 2010, WT/AB/WP/6.

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9. In the original and compliance proceedings in EC and certain member States – Large Civil
Aircraft and in the or iginal proceedings in US – Large Civil Aircraft (2 nd complaint), the
Appellate Body adopted additional procedures that it considered struck an appropriate balance
between the risks associated with the disclosure of sensitive information, on the one hand, and the
adjudicative authority of the Appellate Body and the rights and duties of the participants,
third participants, and the WTO membership at large, on the other hand. Similar considerations
are relevant in these appellate proceedings.
10. We recall that it is for the adjudicator to decide whether certain information calls for
additional confidentiality protection. Likewise, it is for the adjudicator to decide whether and to
what extent specific arrangements are necessary, while safeguarding the various righ ts and duties
that are implicated in any decision to adopt additional protection. We note that, in this dispute,
and in contrast to the proceedings in EC and certain member States – Large Civil Aircraft and in
US – Large Civil Aircraft (2 nd complaint), neither party submitted HSBI to the Panel. This could
suggest that the procedures to protect sensitive information in this appeal need not be as stringent
as the procedures adopted in the prior appeals relied upon by the participants , which have
accorded protection to both BCI and HSBI. Indeed, for this reason, the participants themselves
have suggested that, in basing additional procedures in this appeal on those adopted in the appeal
in EC and certain member States – Large Civil Aircraft (Article 21.5 – US), we omit those aspects
of the procedures that deal with HSBI. At the same time, if we compare the type of BCI at issue in
this dispute with the BCI that has been accorded protection in these prior appeals, there are some
similarities in the nature of the i nformation, the industry concerned, and the risks associated with
disclosure. Moreover, neither participant has appealed the Panel's decisions regarding the
protection of BCI, and there are issues of practicality to consider. We will therefore proceed larg ely
on the basis of how BCI was treated before the Panel. Nevertheless, we do not exclude revisiting
whether a particular piece of information meets the objective criteria justifying additional
protection, or the particular degree thereof, should a disagre ement on the classification of that
information arise before us, or should we consider that we need to refer to that information in our
report in order to give a sufficient exposition of our reasoning and findings.
11. Having reaffirmed the relevant considerat ions that guide our decision, we turn to the
participants' proposed procedures, which essentially replicate the procedures adopted by the
Appellate Body in EC and certain member States – Large Civil Aircraft (Article 21.5 – US), insofar
as they protect BCI.
12. The arrangements that the participants have jointly proposed do not appear unduly to affect
the Appellate Body's ability to adjudicate the dispute, the rights of the third participants to be
heard, or the rights and interests of the WTO membership at la rge. We have largely reflected the
proposed arrangements in the additional procedures that we adopt below. These procedures
ensure that Appellate Body Members and assigned Appellate Body Secretariat staff have sufficient
access to the entirety of the Panel Report, the submissions, and the record of the dispute. They
also limit the risk of inadvertent disclosure of BCI and set out an efficient process for correcting
and transmitting BCI-redacted versions of submissions.
13. Finally, we note, as the Appellate Body did in the original and compliance proceedings in
EC and certain member States – Large Civil Aircraft and in the original proceedings in US – Large
Civil Aircraft (2 nd complaint), that we will make every effort to draft our report without including
BCI. The additional procedures that we adopt below foresee that the participants will be provided
in advance with a copy of the Appellate Body report intended for circulation to WTO Members, and
will have an opportunity to request the removal of any BCI that is inadvertently included in the
report. If we consider it necessary to include BCI in our report, the participants will be given an
opportunity to comment. We will provide further guidance at a later point in these proceedings as
to the modalities and details of such a procedure.
14. For these reasons, we have decided to provide additional confidentiality protection in this
appeal. Accordingly, we adopt the following additional procedures:

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Additional Procedures to Protect Sensitive Information
General
i. These additional procedures shall apply to information that was treated as business
confidential information (BCI) in the Panel proceedings and that is contained in
documents or electronic media that are part of the Panel record. The a dditional
procedures apply to written and oral submissions made in the appellate proceedings only
to the extent that they incorporate BCI.
ii. To the extent that information on the record is submitted to the Appellate Body in a form
that differs from the way in which it was presented to the Panel, and there is a
disagreement between the participants on the proper treatment of this information, the
Appellate Body shall decide upon the treatment to be accorded to such information after
hearing their views.
iii. Each participant may, at any time, request that information that it submitted, and that
was previously treated as BCI, no longer be treated as such.
iv. The participants and third participants shall file their written submissions and executive
summaries with the Ap pellate Body Secretariat in accordance with the Working Schedule
drawn up by the Division for this appeal. Where a written submission and/or an executive
summary contains BCI, a redacted version of the submission and/or the executive
summary (that is, a ve rsion without BCI) shall be filed simultaneously with the
Appellate Body Secretariat. Should an executive summary submitted by a participant or
third participant contain BCI, the redacted version of the executive summary will be
annexed to the Appellate Body report. The redacted version shall be sufficient to permit a
reasonable understanding of the substance of the relevant document. The Division may
take appropriate action to ensure that this obligation is satisfied. The participants and
third participant s shall also provide the Appellate Body Secretariat with an electronic
version of all submissions, including the redacted versions. The transmittal of
participants' submissions to each other and to the third participants, and the transmittal
of third parti cipants' submissions to the participants and to the other third participants
are further regulated in the provisions below, which apply mutatis mutandis to executive
summaries of written submissions.
Appellate Body Members and Appellate Body Secretariat Staff
v. Appellate Body Members and assigned staff of the Appellate Body Secretariat may have
access to the BCI on the Panel record and in the written and oral submissions made in
these appellate proceedings. Appellate Body Members and assigned Appellate Body
Secretariat staff shall not disclose BCI, or allow BCI to be disclosed, to any person other
than those identified in the preceding sentence, or to those "BCI -Approved Persons" of
the participants and third participants identified in accordance with paragraphs xii and xiv
below. Appellate Body Members and assigned staff of the Appellate Body Secretariat shall
ensure that, when it is not in use, BCI is stored in locked cabinets. Appellate Body
Members and Appellate Body Secretariat staff are covered by the Rules of Conduct . As
provided for in the Rules of Conduct, evidence of breach of these Rules may be submitted
to the Appellate Body, which will take appropriate action.
vi. Appellate Body Members may maintain a copy of documents containing BCI at their
places of residence outside Geneva. When not in use, the documents and materials
containing BCI kept by Appellate Body Members at their places of residence outside of
Geneva shall be stored in locked cabinets. Documents and materials containing BCI shall
be sent to Appellate Body Members only by secure e-mail or courier.
vii. The participants shall provide printed copies of their submissions and other documents
containing BCI that are intended for use by Appellate Body Members or assigned
Appellate Body Secretariat staff on coloured paper and individually watermarked with
"Appellate Body" and numbered consecutively ("Appellate Body No. 1", "Appellate Body
No. 2", etc.).

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viii. Subject to appropriate precautions, BCI may be taken outside of the premises of the
Appellate Body Secretariat, in hard copy and electronic form, for purposes of any oral
hearings that may be held in connection with this appeal.
ix. Except as provided for in paragr aph x, all documents and electronic files containing BCI
shall be destroyed or deleted when the Appellate Body report in this dispute has been
adopted by the DSB.
x. The Appellate Body shall retain one hard copy and one electronic version of all
documents containing BCI as part of the appellate record. Documents and electronic
media containing BCI shall be kept in sealed boxes within locked cabinets on the
Appellate Body Secretariat's premises.
Appellate Body Report
xi. The Division will make every effort to draft an Appellate Body report that does not
disclose BCI. The Division will, in particular, endeavour to limit itself to making
statements or drawing conclusions that, even when based on BCI, do not quote or reveal
the substance of such BCI, to the extent that such an approach does not compromise the
clarity of the reasoning. A copy of the Appellate Body report intended for circulation to
WTO Members will be provided in advance to the participants, at a date and in a manner
to be specified by the Division. The participants will be provided with an opportunity to
request the removal of any BCI that is inadvertently included in the report. The Division
will also indicate to the participants if it finds it necessary to include in the Appellate Body
report information that was treated by the Panel as BCI, and will provide the participants
with an opportunity to comment. Comments on the inclusion of information previously
treated as BCI and requests for removal of BCI inadvertently included in the report shall
be filed with the Appellate Body Secretariat within a time period to be specified by the
Division. No other comments or submissions on the report will be accepted. In coming to
a decision on the need to include BCI to ensure that the final report is understandable,
the Division will strike an appropriate balance between the rights of the
WTO membership at large to obtain a report that gives a sufficient exp osition of its
reasoning and findings, on the one hand, and the legitimate concerns of the participants
to protect sensitive information, on the other hand.
Participants
xii. The participants shall provide lists of persons who are "BCI -Approved Persons". These
lists shall be provided to the Appellate Body Secretariat by 5 p.m. on Wednesday,
4 January 2017, and shall be served on the other participant and the third participants.
Participants may submit amendments to their list of BCI -Approved Persons by filing an
amended list with the Appellate Body Secretariat and serving it on the other participant
and the third participants. A participant may object to the designation of an outside
advisor as a BCI -Approved Person by the other participant. Any objection to the
designation of such individual as a BCI -Approved Person must be filed with the
Appellate Body Secretariat within two working days of the submission of the original or
amended list and simultaneously served on the other participant and the third
participants. Thus, any objections to the designation of an outside advisor as a
BCI-Approved Person in the lists to be filed on 4 January 2017 must be filed with the
Appellate Body Secretariat and served on the other participant and the third participants
by 5 p.m. on Friday, 6 January 2017. The Division will reject a request for designation of
an outside advisor as a BCI-Approved Person only upon a showing of compelling reasons,
having regard to, inter alia, the relevant principles reflected in the Rules of Conduct and
the Illustrative List in Annex 2 thereto. BCI -Approved Persons shall not disclose BCI, or
allow either to be disclosed, except to the Appellate Body, assigned Appellate Body
Secretariat staff, other BCI -Approved Persons, and Third Participant BCI -Approved
Persons.
xiii. Any participant referring in its written submissions to information that is classified as BCI
shall clearly identify the information as such in those submissions. Each participant shall
simultaneously provide a redacted version of its submissi ons to the other participant.

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Submissions containing BCI, and redacted versions of submissions, shall be transmitted
only to BCI -Approved Persons of the other participant. The other participant shall have
two working days to object to the inclusion of any information that it considers to be BCI,
but that is not designated as such and/or is not redacted. If no objections are made, then
the redacted version of the relevant submission shall be transmitted the following day to
the third participants. If there a re objections, the Division shall resolve the matter and
instruct, as appropriate, the relevant participant to redact the information that was
subject to the objection, unless the participant agrees to remove it, and to transmit a
correctly redacted versio n of its submission to the Appellate Body Secretariat, the other
participant, and the third participants. The electronic copy of the BCI version of the
submission shall be corrected by the participant according to the Division's resolution of
the matter and re -transmitted to the Appellate Body Secretariat and the other
participant. The Appellate Body shall direct BCI-Approved Persons to implement modified
confidentiality treatment in any paper copies of the submission and to replace the
electronic copies with the corrected versions. The BCI version of all participants'
submissions shall be transmitted to the third participants pursuant to p aragraph xv
below.
Third Participants
xiv. Third participants may designate up to eight individuals as "Third Participant
BCI-Approved Persons". For this purpose, each third participant shall provide a list of
Third Participant BCI -Approved Persons to the Appel late Body Secretariat by 5 p.m. on
Wednesday, 4 January 2017. A copy of the list of Third Participant BCI -Approved Persons
shall be served on each participant and on each other third participant. Third participants
may submit amendments to their lists of B CI-Approved Persons by filing an amended list
with the Appellate Body Secretariat and serving it on the participants and the other
third participants. A participant may object to the designation of an outside advisor as a
Third Participant BCI-Approved Person by a third participant. Any objections must be filed
with the Appellate Body Secretariat within two working days of the filing of the original or
of an amended list of Third Participant BCI -Approved Persons, and simultaneously served
on the other participant and the third participants. The Division will reject the designation
of an outside advisor as a Third Participant BCI-Approved Person only upon a showing of
compelling reasons, having regard to, inter alia, the relevant principles in the Rules of
Conduct and the Illustrative List in Annex 2 thereto. Third Participant BCI -Approved
Persons shall not disclose BCI, or allow it to be disclosed, except to the Appellate Body,
assigned Appellate Body Secretariat staff, BCI -Approved Persons, and other
Third Participant BCI-Approved Persons.
xv. The BCI version of all submissions shall be transmitted to the third participants by
providing a copy to the Appellate Body Secretariat for placement in the designated
reading room located on the premises of the WTO. Third Participant BCI -Approved
Persons shall be allowed to view in the designated reading room the BCI version of the
Panel Report and the BCI version of the submissions filed in these appellate proceedings.
Third Participant BCI -Approved Persons shall not bring into that room any electronic
recording or transmitting devices, nor shall they remove copies of the BCI version of the
Panel Report or the BCI version of the submissions from that room. Upon request, each
third participant shall be provided with one copy of the Panel Report as circulated to WTO
Members and of the redacted version of the submissions for use in the reading room.
Third Participant BCI -Approved Persons may take handwritten notes on the provided
copies of the circulated Panel Report and redact ed version of the submissions and they
may take these copies with them. These documents shall be printed on coloured ,
individually watermarked paper; shall bear the names of the Third Participant
BCI-Approved Persons for that third participant ; and shall s tate that "This document is
not to be copied". In addition, the cover page of each such document shall state that any
handwritten BCI added to the document shall only be discussed or shared with other
Third Participant BCI -Approved Persons. The content of any handwritten notes shall not
be incorporated, electronically or in handwritten form, into any other copy of the Panel
Report or of the submissions. These documents and any other handwritten notes taken
by the Third Participant BCI-Approved Persons in th e reading room shall be locked in a
secure cabinet when not in use. These documents and handwritten notes must be

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returned to the Appellate Body Secretariat at the closing of the final session of the oral
hearing held in this appeal.
xvi. Each Third Participant BCI-Approved Person viewing the BCI version of the Panel Report
and submissions in the designated reading room shall complete and sign a log. The
Appellate Body Secretariat shall keep such log as part of the record of the appeal.
xvii. Third participants making written submissions shall transmit their submissions to the
Appellate Body Secretariat and the participants. If a third participant wishes to refer in its
written submission to information that is classified as BCI, it shall clearly identify such
information. A third participant referring to BCI in its submission shall also
simultaneously provide the participants with a redacted version of that submission. Third
participant's submissions containing BCI, and redacted versions of such submissions,
shall be t ransmitted only to BCI -Approved Persons of the participants. The participants
shall have two working days to object to the inclusion of any information in a third
participant's submission that a participant considers to be BCI, but that is not designated
as such and/or is not redacted. If no objections are made, then on the following day:
(i) a third participant's submission that contains no BCI shall be transmitted to the other
third participants; and (ii) if a third participant's submission contains BCI, the redacted
submission shall be transmitted to the other third participants. If there are objections,
the Division shall resolve the matter and instruct, as appropriate, the relevant third
participant to redact the information that was subject to the obje ction, unless the third
participant agrees to remove it, and to transmit a corrected BCI version of its submission
to the Appellate Body Secretariat and the participants, and a correctly redacted version of
its submission to the Appellate Body Secretariat, each of the participants , and the other
third participants. The electronic copy of the BCI version of the submission shall be
corrected by the third participant according to the Division's resolution of the matter and
re-transmitted to the Appellate Body Secretariat and the participants; the Appellate Body
shall direct BCI-Approved Persons to implement modified confidentiality treatment in any
paper copies of the submission and to replace the electronic copies. Third participants
shall transmit the BCI ver sion of their submissions to the other third participants by
providing a copy to the Appellate Body Secretariat for placement in the designated
reading room referred to in paragraph xv above.
Oral Hearing
xviii. Appropriate procedures shall be adopted to protect BCI from unauthorized disclosure at
any oral hearing held in this appeal.

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ANNEX D-2
PROCEDURAL RULING OF 6 JANUARY 2017
1. On Thursday, 5 January 2017 , the Chair of the Appellate Body received a communication
from the United States requesting that the Division selected to hear this appeal modify t he
deadline for the filing of its appellant's submission. In its letter, the United States invokes
Rule 16(2) of the Working Procedures for Appellate Review 1 (Working Procedures), and seeks to
have this deadline extended from 10 January 2017 to 17 January 2017. According to the
United States, there are exceptional circumstances present in these proceedings, such that " failing
to grant such a request would result in manifest unfairness within the meaning of Rule 16(2)". We
understand that the European Union and the third participants were served a copy of the
United States' request. The United States also indicate d, in its letter, that it ha d asked the
European Union for its views on this request for an extension of time.
2. In support of its request, the United States highlighted that the deadline for the filing of its
appellee's submission in EC and certain member States – Large Civil Aircraft (Article 21.5 – US)
(WT/DS316) is Friday 13 January 2017. The United States submitted that the scheduling of the
deadlines for the filing of the United States' appellee's submission in EC and certain member
States – Large Civil Aircraft (Article 21.5 – US) (WT/DS316) and its appellant's submission in the
present dispute on 10 and 13 January, respectively, with only a three -day time difference, would
impede the ability of its staff to finalize these submissions. In particular, the United States
observed that in its appellee's submission in EC and certain member States – Large Civil Aircraft
(Article 21.5 – US), the United States has to respond to a lengthy appellant's submission, and the
inclusion of business confidential information (BCI) and possibly highly sensitive business
information (HSBI) in the appellee's submission presents further difficulties. Moreover, the
United States argued that its appellant's submission in this appeal, while shorter than its appellee's
submission in EC and certain member States – Large Civil Aircraft (Article 21.5 – US), will still be
lengthy, and that the United States' appellee's submission in that case is farther advanced than its
appellant's submission in the present appeal.
3. Also on 5 January 2017 , and on behalf of the Division hearing this appeal, the Chair of the
Appellate Body invited the European Union and the third participants in this dispute to comment in
writing on the communication from the United States by 1:00 p.m. on 6 January 2017. No
comments were received from the third participants.
4. On Friday, 6 January 2017 , written comments were received from the European Union. The
European Union indicated that it did not, in principle , oppose the United States' request, if the
Appellate Body considers that the reasons given by the United States constitute exceptional
circumstances within the meaning of Rule 1 6(2) of the Working Procedures. However, the
European Union observed that the United States has had more than five months, since receipt of
the final Panel Report to prepare its appellant's submission, and that the time periods in this
dispute are subject to the expedited treatment required by Art icle 4.12 of the Agreement on
Subsidies and Countervailing Measures. According to the European Union, these considerations
should also be taken into account when deciding whether the United States' request meets the
burden of demonstrating exceptional circumstances within the meaning of Rule 16(2) of the
Working Procedures. In its letter commenting on the United States' request, the European Union
highlighted the " significant overlaps in the matters at issue" in thi s appeal and in the appellate
proceedings in EC and certain member States – Large Civil Aircraft (Article 21.5 – US). For reasons
similar to those outlined in the United States' request in this dispute, the European Union
requested a one -week extension for the filing of its appellee 's submission in the appellate
proceedings in EC and certain member States – Large Civil Aircraft (Article 21.5 – US), as well as a
one-week extension for the filing of the United States' appellee's submission in that dispute.
5. We observe that the United States filed its appeal in the present dispute on
16 December 2016. Pursuant to Rule 21(1) of the Working Procedures, an appellant is required to
file its appellant's submission o n the same day as the date of the filing of the Noti ce of Appeal.

1 WT/AB/WP/6, 16 August 2010.

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Therefore, under normal circumstances, the United States would already have prepared, and
would have filed, its appellant's submission on 16 December 2016. In these appellate proceedings,
however, on 16 December 2016 , the European Union and the United States filed a joint letter
requesting the adoption of additional procedures to protect sensitive information included in the
record of this dispute . In response to that letter, the Division hearing this appeal suspended t he
deadline for the filing of the appellant's submission pending the adoption of additional procedures
to protect sensitive information. On 22 December 2016, the Appellate Body adopted a procedural
ruling to protect sensitive information, and communicated the filing date for the United States'
appellant's submission to the participants and third participants.
6. We highlight that the reason for postponing the filing deadline for the United States'
appellant's submission, otherwise due on 16 December 2016, was to enable proper procedures to
be put in place to ensure adequate protection of BCI in that submission. The United States did not
request more time to prepare the contents of its appellant's submission at that time . Indeed, in
the joint letter by the Euro pean Union and the United States of 16 December 2016 requesting the
adoption of BCI procedures, the United States sought "the Appellate Body's guidance on how to
proceed with the filing of its appellant's submission consistent with the requirements of Rule 21(1),
and in light of the particular confidentiality concerns", in the even t that "the Appellate Body is not
in a position to consider and adopt BCI procedures at this point in time". We understand from this
statement that, on 16 December 2016, the United States was already prepared to file its
appellant's submission consistently with Rule 21(1) of the Working Procedures . This, in turn,
suggests that the filing date for the United States' appellee's submission in EC and certain member
States – Large Civil Aircraft (Article 21.5 – US), namely 13 January 2017, should not have affected
the preparation of the United States' appellant's submission in the present case.
7. For this reason, we are not persuaded by the United States' argument that the curren t
scheduling of the deadlines for its appellant's submission in the present dispute and its appellee's
submission in EC and certain member States – Large Civil Aircraft (Article 21.5 – US) would
impede the ability of its staff to finalize the submissions . We also recall, in this regard, that the
European Union's appellant's submission in EC and certain member States – Large Civil Aircraft
(Article 21.5 – US) was filed on 3 November 2016, and the United States' appellee's submission is
due 71 days later, on 13 January 2017. In normal circumstances, under Rule 22(1) of the
Working Procedures, an appellee's submission is to be filed 18 days after the date of the filing of
the Notice of Appeal (and an appellant's submission filed pursuant to Rule 21).
8. We further observe that , in view of the WTO end-of-year closure, the deadline set for the
filing of the United States' appellant's submission in the present dispute was delayed until the
second working week of 2017. In addition, t he Panel Report in the present dispute is relatively
short and, in its letter, the United States itself indicates that its appellant's submission will not be
exceptionally lengthy.
9. For the reasons above, we consider that strict adherence to the time periods set by the
Division for the filing of the United States' appellant's submission will not result in manifest
unfairness within the meaning of Rule 16(2) of the Working Procedures , and that it is not,
therefore, necessary or appropriate to modify the deadline for the filing of the Unit ed States
appellant's submission.
10. In these circumstances, the Division declines the United States' request for extension of the
deadline for filing its appellant's submission in the present appeal, and, instead, affirms the
deadline for filing the United States' appellant's submission set for Tuesday, 10 January 2017.

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ANNEX D-3
PROCEDURAL RULING OF 2 JUNE 2017
1. On 1 June 2017, we received a communication from the United States proposing additional
procedures to protect Business Confidential Information (BCI) during the oral hearing in this
appeal and requesting that we allow public observation of the opening statements at the
oral hearing. The oral hearing is scheduled for 6-7 June 2017.
2. Specifically, the United States proposes that we adopt procedures similar to those adopted
by the Appellate Body in EC and certain member States – Large Civil Aircraft (Article 21.5 – US),
pursuant to the Pr ocedural Ruling dated 19 April 2017, with adjustments to remove references to
highly sensitive business information given that such information does not form part of the record
of the present dispute. They state that the reasons for their request and propo sal are substantially
the same as the reasons that were given in a joint letter of 11 April 2017 from the United States
and the European Union, which contained a similar request.
3. On 1 June 2017, we issued a communication soliciting the views of the Europea n Union and
third participants on the United States' request. The European Union and third participants were
given until the following day at noon on 2 June 2017 in order to respond.
4. The European Union expressed its support for the United States' request, but noted that it
should be for the Appellate Body to decide whether or not in this particular instance sufficient time
remained to organise an open hearing. Australia also supported the United States' request,
indicating that it considered that the reques t helpfully provided transparency and appropriately
protected BCI. Brazil noted that it had not received the United States' request, and therefore was
not able to comment specifically on it, but expressed its concern with the timeliness of the request
and what measures might be needed to comply with the request. Brazil indicated that it did not
wish its opening statement to be broadcast. China submitted that the United States' request to
exclude non -BCI-Approved persons of the third participants from the se gment of the hearing
dedicated to questions and answers would significantly constrain the ability of third participants to
engage fully in the oral hearing. China added that, in the circumstances of this appeal, the need
for protection of sensitive informa tion cannot sufficiently justify a complete exclusion of
non-BCI-Approved persons from the question and answer session. China also remarked that this
appeal raises important interpretative issues that deserve the full participation of
third participants. F inally, China indicated that it does not want to open to the public its
statements and oral responses to the questions during the oral hearing. No comments were
received from Canada, India, Japan, Korea, or the Russian Federation.
5. The request of the partic ipants raises issues similar to those that were before the
Appellate Body in EC and certain member States – Large Civil Aircraft , EC and certain member
States – Large Civil Aircraft (Article 21.5 – US), and in US – Large Civil Aircraft (2nd complaint).
6. In this appeal, we already adopted, in a Procedural Ruling dated 22 December 2016,
additional procedures for the protection of sensitive information. Pursuant to that ruling , the
participants have provided a list of persons who are authorized to have acces s to BCI. Therefore,
only members of the participants' delegations who are BCI -Approved Persons are invited to attend
the session of the oral hearing in which BCI may be discussed. Moreover, also pursuant to this
Procedural Ruling, the third participants h ave been allowed to designate up to eight individuals as
Third Participant BCI -Approved Persons. We consider this to be sufficient to allow the
third participants to be represented properly at the oral hearing. In view of the need to provide
additional protection to BCI, only Third Participant BCI -Approved Persons are invited to attend the
session of the oral hearing in which BCI may be discussed. Having carefully considered the
comments provided by China, we do not consider that this will unduly impinge up on the rights of
the third participants in this case.
7. Regarding the United States' request that we allow public observation of the opening
statements at the oral hearing, we wish to express our strong concerns regarding the timeliness of
that request. The request was filed on 1 June 2017, two working days before the oral hearing in

- D-12 -

this dispute. Given the time needed to solicit comments from the European Union and
third participants, and the fact that the oral hearing follows a weekend and an official WTO holiday,
there was less than one business day remaining in order to deliberate the United States' request
together with the comments of the European Union and the third participants. As noted above,
although the European Union expressed its support for the United States' request, it also noted
that it should be for the Appellate Body to decide whether or not in this particular instance
sufficient time remained to organise such an open hearing. Devising arrangements for public
viewing of the opening statemen ts at the oral hearing also entails a burden on a number WTO
departments and services and causes budgetary expenditures, particularly when such requests are
made at a very late stage. We note in this respect that the above -mentioned Procedural Ruling
was issued on 22 December 2016 and the pre -hearing letter regarding the hearing arrangements
was sent to participants on 18 May 2017. While we decide, by majority, to grant exceptionally the
United States' request, as supported by the European Union, regarding public observation, we
underscore the importance for participants wishing to request public observation of all or part of
oral hearings in disputes to make such requests in a timely fashion, taking into account the due
process rights of other participants and third participants and the burden on WTO Secretariat
resources.
8. Notwithstanding the concerns we express above, for reasons similar to those adopted by the
Appellate Body in prior such disputes, including, most recently, EC and certain member
States – Large Civil Aircraft (Article 21.5 – US), we adopt below the Additional Procedures on the
Conduct of the Oral Hearing in this appeal.
Additional Procedures on the Conduct of the Oral Hearing
i. These Additional Procedures shall apply to all sessions of the o ral hearing to be held in this
appeal and, in particular, to any information that is referred to during the course of the oral
hearing that was treated as business confidential information (BCI) in the Panel proceedings
and that is contained in documents o r electronic media that are part of the Panel record.
These Additional Procedures complement the Additional Procedures for the Protection of
Sensitive Information that we adopted in our Procedural Ruling of 22 December 2016.
ii. To the extent that information on the record is presented at the oral hearing in a form that
differs from the way in which it was presented to the Panel, and there is a disagreement
between the participants as to the proper treatment and confidentiality of this information,
the Appellate Body shall decide the matter after hearing the views of the participants.
iii. Appellate Body Members, Secretariat staff assigned by the Appellate Body to work on this
appeal, and interpreters and court reporters retained for this appeal may be present
throughout the oral hearing, including the session dedicated to the discussion of BCI.
iv. In addition to the persons indicated in paragraph iii above, BCI shall be disclosed during the
oral hearing only to BCI-Approved Persons of the participants and Third Participant
BCI-Approved Persons, as designated in accordance with our Procedural Ruling of
22 December 2016.
v. The session of the oral hearing dedicated to the opening statements of the participants and
third participants shall be open to all members of the delegations of the participants and
third participants. The participants and third participants shall abstain from referring to BCI in
their opening statements.
vi. In order to protect BCI from unauthorized disclosure, only BCI -Approved Persons of the
participants and Third Participant BCI -Approved Persons are invited to attend the session of
the oral hearing dedicated to questions and answers.
vii. During the session of the oral hearing dedicated to questions and answers, the BCI version of
the Panel Report and the BCI versions of the submissions filed in this appeal will be made
available. Only Third Participant BCI -Approved Persons wil l be allowed to consult these
documents. The documents shall not be removed from the hearing room and shall be
returned to the Appellate Body Secretariat at the end of the oral hearing.

- D-13 -

viii. The parts of the transcript of the oral hearing containing BCI shall b ecome part of the
appellate record in this appeal and shall be kept in accordance with the Procedural Ruling of
22 December 2016.
Public observation of the oral hearing
ix. The first session of the oral hearing, which will consist of the opening statements by the
participants and third participants, shall be open to public observation, subject to paragraph x
below. The session of the oral hearing open to public observation shall be videotaped . Within
two days of the completion of the oral hearing, either participant may request to review the
videotape to verify that no BCI has been included inadvertently or otherwise. Upon such
request, staff of the Appellate Body Secretariat shall be present while the participant(s)
review the videotape. If the videotape contains BCI, a redacted version of the videotape shall
be produced in which the BCI has been deleted. In case of disagreement between the
participants regarding the sensitive nature of any in formation referred to during the opening
statements, the relevant portion will not be subject to public observation.
x. The opening statements of third participants wishing to maintain the confidentiality of their
submissions will not be subject to public obs ervation. Any third participant that has not
already done so may request that its oral statements remain confidential and not be subject
to public observation. Such requests should be made as soon as possible, and no later than
the beginning of the oral hearing at 9:30 a.m. Geneva time on Tuesday, 6 June 2017.
xi. Notice of the oral hearing will be provided to the general public through the WTO website.
Members of the general public wishing to observe the oral hearing will be required to
register in advance wit h the WTO Secretariat. The videotapes, or if applicable the redacted
versions of the videotapes, shall be screened to WTO delegates and members of the public
subject to the terms set out in paragraph ix above. The time and location of the videotape
screening shall be announced in due course , and WTO delegates will be invited to indicate to
the Appellate Body Secretariat whether they wish to have a reserved seat in the room where
the videotape will be screened.