  
  
TN/DS/31  
 
17 June 2019  
(19-4072) Page: 1/123 
Dispute Settlement Body Special Session  Original: English  
 
 SPECIAL SESSION OF T HE DISPUTE SETTLEMEN T BODY  
REPORT BY THE CHAIRM AN, AMBASSADOR COLY SECK  
TABLE OF CONTENTS  
1  OVERALL ASSESSMEN T ................................ ................................ ................................  3 
1.1   Introduction  ................................ ................................ ................................ ................  3 
1.2   Approach to the negotiations  ................................ ................................ ........................  3 
1.3   State of play  ................................ ................................ ................................ ...............  4 
1.3.1    Challenges surrounding the negotiations  ................................ ................................ ...... 4 
1.3.2    General assessment  ................................ ................................ ................................ .. 5 
1.3.3    Specific outcome of the focused work on Strictly confidential information  ........................  6 
1.4   Possible ways forward  ................................ ................................ ................................ .. 6 
1.4.1    Comprehensive outcome  ................................ ................................ ...........................  6 
1.4.2    Incremental outcome(s)  ................................ ................................ ............................  8 
1.4.2.1    Amendment(s) to the DSU  ................................ ................................ ......................  8 
1.4.2.2    DSB decision(s)  ................................ ................................ ................................ ..... 9 
1.5   Concluding observation  ................................ ................................ ............................... 10 
2  SPECIFIC RESULTS OF THE FOCUSED WORK CONDUCTED ON THE 12 ISSUES  ...........  10 
2.1   Mutually agreed solutions  ................................ ................................ ............................ 11 
2.1.1    Comments from the Chair on his text on Mutually agreed solutions  ................................ 11 
2.1.2    Comments from Members on the Chair's text  ................................ .............................. 11 
2.1.3    Chair's text  ................................ ................................ ................................ ............. 12 
2.2   Third-party rights  ................................ ................................ ................................ .......13 
2.2.1    Comments from the Chair on his text on Third -party rights  ................................ ........... 13 
2.2.2    Comments from Members on the Chair's text  ................................ .............................. 16 
2.2.3    Chair's text  ................................ ................................ ................................ ............. 17 
2.3   Strictly confidential information (SCI)  ................................ ................................ ........... 19 
2.3.1    Comments from the Chair on his text on SCI................................ ............................... 19 
2.3.2    Comments from Members on the Chair's t ext ................................ .............................. 20 
2.3.3    Chair's text  ................................ ................................ ................................ ............. 21 
2.4   Sequencing  ................................ ................................ ................................ ................ 23 
2.4.1    Comments from the Chair on his text on  Sequencing  ................................ ................... 23 
2.4.2    Comments from Members on the Chair's text  ................................ .............................. 24 
2.4.3    Chair's text  ................................ ................................ ................................ ............. 25 TN/DS/31  
 
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  2.5   Post-retaliation  ................................ ................................ ................................ ........... 27 
2.5.1    Comments from the Chair on his statement on Post -retaliation  ................................ ......27 
2.5.2    Comments from Members on the Chair's statement  ................................ ..................... 27 
2.5.3    Chair's statement  ................................ ................................ ................................ ....28 
2.6   Transparency and amicus curiae  briefs  ................................ ................................ .......... 32 
2.6.1    Comments from the Chair on his text on Transparency and amicus curiae  briefs  .............. 32 
2.6.2    Comments from Members on the Chair's text  ................................ .............................. 33 
2.6.3    Chair's text  ................................ ................................ ................................ ............. 34 
2.6.4    Annex to the Chair's text on the proposed early derestriction of final panel reports  .......... 38 
2.7   Timeframes  ................................ ................................ ................................ ............... 41 
2.7.1    Comments from the Chair on his text on Timeframes  ................................ ................... 41 
2.7.2    Comments from Members on the Cha ir's text  ................................ .............................. 43 
2.7.3    Chair's text  ................................ ................................ ................................ ............. 43 
2.8   Remand  ................................ ................................ ................................ .................... 49 
2.8.1    Comments from the Chair on his statement on Remand  ................................ ............... 49 
2.8.2    Comments from Members on the Chair's statement  ................................ ..................... 49 
2.8.3    Chair's statement  ................................ ................................ ................................ ....50 
2.9   Panel composition  ................................ ................................ ................................ .......55 
2.9.1    Comments from the Chair on his text on Panel composition  ................................ .......... 55 
2.9.2    Comments from Members on the Chair's text  ................................ .............................. 57 
2.9.3    Chair's text  ................................ ................................ ................................ ............. 57 
2.10   Effective compliance  ................................ ................................ ................................ .60 
2.10.1    Comments from the Chair on his statement on Effective compliance ............................. 60 
2.10.2    Comments from Members on the Chair's statement  ................................ .................... 60 
2.10.3    Chair's statement  ................................ ................................ ................................ ...60 
2.11   Developing country interests  ................................ ................................ ...................... 63 
2.11.1    Comments from the Chair on his text on Developing country interests  .......................... 63 
2.11.2    Comments from Members on the Chair's text  ................................ ............................ 66 
2.11.3    Chair's text  ................................ ................................ ................................ ........... 67 
2.12   Flexibility and Member control and Additional guidance for WTO adjudicative bodies  ......... 70 
2.12.1    Comments from the Chair on his statement on Flexibility and Member control, and on 
Additional guidance fo r WTO adjudicative bodies  ................................ ................................ ....70 
2.12.2    Chair's statement  ................................ ................................ ................................ ...70 
ANNEX 1: PROPO SED DRAFT LEGAL TEXT S THAT FORMED THE BA SIS OF  THE FOCUSED 
WORK CONDUCTED  ................................ ................................ ................................ ........  73 
 
  TN/DS/31  
 
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  1  OVERALL ASSESSMENT  
1.1  Introduction  
1.1.  In this document, I report on the activities of the Dispute Settlement Body in Special Session 
(DSB-SS) during my tenure as its chairperson from May 2017 to July 2019. To provide Members 
with a single and comprehensive report and facilitate an overall assessment, this document also 
incorpo rates the specific results of work undertaken under my predecessor, Chair Dr. Stephen 
Karau.1  
1.2.  This report initially describes the approach to the negotiations that Chair Karau devised and 
that I continued and further developed in consultation with  partici pants  in the negotiations.2 The 
report then provides the state of play on the negotiations. As part of that section, I give an overview 
of the challenges surrounding the negotiations and a general assessment of the work that was 
conducted in the DSB -SS since November 2016. I also identify possible ways forward for the 
consideration of participants. The remainder of the report gives a detailed account of the specific 
results of work conducted on an issue -by-issue basis. Finally, the annex to th is report  (Annex 1),  
compiles the draft legal texts that formed the basis of the work conducted by the DSB -SS under 
Chair Karau and myself.   
1.3.  I present this report  under my own responsibility. It is without prejudice to Members' final 
positions on the issues under negot iation .  
1.2  Approach to the negotiations  
1.4.  Chair Karau and I inherited the 12 issues under negotiation in the DSB -SS from our 
predecessor, Chair Saborío Soto .3 They were selected after extensive discussions  among 
participants . The issue s are: (1) Mutually agree d solutions, (2) Third -party rights, (3) Strictly 
confidential information, (4) Sequencing, (5) Post -retaliation, (6) Transparency and amicus curiae  
briefs, (7) Timeframes, (8) Remand, (9) Panel composition, (10) Effective compliance, (11) 
Developing count ry interests, and (12) Flexibility and Member control. Issues 1 and 2 were discussed 
during Chair Karau's tenure, while the other ten issues were considered during mine.  
1.5.  Following his election and consultations with participants, Chair Karau decided to ado pt a 
somewhat new approach to the DSU negotiations.4 I continued and subsequently adjusted that 
approach in consultation with participants. Under this approach, which has come to be known as 
"sequential focused work", the DSB -SS discussed one of the 12 iss ues at a time. A fixed period of 
time was allotted for the discussion of each issue, after which the DSB -SS proceeded to the next 
issue.5  The focused work of the DSB -SS commenced in November 2016 and concentrated on those 
components of an issue that prese nted a sufficiently strong possibility for convergence or a high 
level of maturity, whether in terms of draft legal text or conceptual discussion. In determining the 
level of convergence or maturity, Chair Karau and I were guided initially by reports circu lated by our 
predecessor.6  
1.6.  Following this approach, the DSB -SS held 47 meetings  under Chair Karau or my chairmanship . 
The meetings were open to all Members.7 For each issue, the DSB -SS held (a) an opening meeting 
to identify the main points of agreement and disagreement among participants and establish 
priorities for the focused work and (b) a closing meeting to record the progress made, identify any 
remaining  conceptual gaps or technical work and bring to a close the focused work. In between, the 
                                                
1 Chair Karau conducted work on two out of twelve issues under negotiation between November 2016 
and May 2017. See TN/DS/ 29, pp. 3-6.  
2 The term "participants" is used in this report, as in reports by prior chairpersons of the DSB -SS, to 
refer to those Mem bers that actively participate in the DSU negotiations, which tends to be mainly those 
Members who from time to time participate in WTO dispute settlement proceedings as parties or third parties.    
3 See TN/DS/25, p. A -3. 
4 See TN/DS/29, para. 2.6.  
5 In response to an interest expressed by some participants in progressing more rapidly, for the last 
four issues on which the DSB -SS conducted focused work, the work on the different issues proceeded in 
separate meetings that were scheduled in a manner that ena bled parallel progress on all four issues.  
6 See, for instance, TN/DS/28, TN/DS/27, TN/DS/26, TN/DS/25 and JOB/DS/14.  
7 All meeting agendas and accompanying documentation are available to Members as room documents 
via the documents for meetings search function on the WTO website .   TN/DS/31  
 
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  Chair held one or two consultations with participants that were aimed at addressing the priority 
aspects identified during the opening meeting and exploring possible flexibilities on the part of 
proponents and other participants that would allow further convergence. This process was often 
facilitated through questions from the Chair that were circulated in advance. In preparation of the 
multilateral consultations and c losing meetings, the Chair engaged directly with the proponents and 
other interested participants.  
1.7.  When participants' positions were sufficiently aligned on a particular issue, prior to the closing 
meeting  the Chair  circulated a Chair's text under his own  responsibility to identify a possible new 
baseline draft legal text that could be acceptable to all participants or to identify possible incremental 
changes to the draft legal text that reflect the discussions during the focused work. When 
proponents' or participants' positions differed significantly, the Chair circulated a Chair's statement 
under his own responsibility, recording points that were clarified, or remained to be clarified, in 
respect of the available draft legal texts and providing his perspe ctive on where participants' 
positions converge or diverge. Participants were given an opportunity to make comments on the 
Chair's texts and statements at the closing meetings.  
1.3  State of play  
1.8.  To assess, realistically, what has been achieved to date and what  outcomes are within reach 
of the participants, it is important, in my view, to identify at the outset some of the challenges 
surrounding these negotiations. Against this background , my report then give s a general assessment 
of the work undertaken and iden tifies options for the consideration of participants.  
1.3.1   Challenges surrounding the negotiations  
1.9.  The participants in these negotiations , which were commenced in November 2001,  have had 
to contend with challenges long before Chair Karau and I set out to condu ct sequential focused work 
on the 12 issues. These challenges continue unabated  and arise in the form of (a) low expectations, 
(b) a limited willingness on the part of proponents to compromise, and (c) the negotiating group's 
lack of confidence in itself .  
1.10.   Participants in recent years have tended to hold low expectations as to the chances of 
successfully concluding the DSU negotiations. The  negotiations  have not benefited from the kind of 
collective political  will and engagement needed to drive them towards  a conclusion, which 
undoubtedly reflects the fact that for much of its history the DSU has been widely seen as operat ing 
effectively and efficiently.8  
1.11.   In the absence of a collective political will to promptly complete the DSU negotiations, 
proponents have in some cases sought to  establish linkages across unrelated issues . While such 
approaches are common in multilateral trade negotiations, this has also limited the ability for the 
various proposals to be considered on the basis of their individual merits . This tendency to link 
unrelated issues is what Chair Karau and I tried to counteract by conducting sequential focused work 
on the 12 issues . Both Chairs considered that this approach  would facilitate consideration of each 
individual issue on its own merit s.  
1.12.   The prolonged lack of results in the negotiations has contributed in my view to a lack of 
confidence on the part of the negotiating group in its ability to deliver outcomes. This sentiment has 
provoked periodic expressions of frustration with the proce ss and made it difficult at times for my 
predecessor and me to get participants to engage actively in text -based work and explore 
compromise solutions  with proponents . Chair Karau and I have therefore persistently reminded the 
participants of the value of pursuing incremental outcomes.9 A success, even if minor, would boost 
the negotiating group's confidence and would likely create the conditions for further outcomes down 
the road.  
1.13.   In addition to these long -standing challenges, new ones have arisen since t he DSB -SS 
embarked on its focused work  in late 2016 . One of these is the lack of strategic alignment among 
                                                
8 The DSU negotiations were not part of the single undertaking approach adopted for the Doha Round. 
They could thus have been concluded before any conclusion of the Doha Round.  
9 See, for instance,  TN/DS/29, p. 7, and TN/DS/30, p. 2.  
 TN/DS/31  
 
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  participants, which has affected the level of engagement of some participants. Although Chair Karau 
in consultation with participants decided to cont inue working with the 12 issues10, certain 
participants have continued to express doubt about the chosen negotiating agenda. According to 
those participants, several of the 12 issues are no longer relevant, or are less relevant than other 
issues that came t o the fore in recent years. Participants adhering to this view consider that new 
issues would stimulate greater  engagement and interest in concluding the negotiations.11  
1.14.   Another new challenge is the dynamic negotiating environment. Four aspects are worth 
highlighting in this regard. First, the dynamic s in the negotiating group itself ha ve change d. New 
active participants have emerged, either because they recently acceded to the WTO or because they 
recently became active users of the dispute settlemen t mechanism. Their positions did not always 
coincide with well -known positions of other participants.    
1.15.   Second, issues arising in recent WTO dispute settlement proceedings or recent rulings by WTO 
adjudicators have in some instances had a negative bearing  on proponents' or other participants' 
willingness to compromise. Moreover, solutions found through dispute settlement practice have led 
some participants to question the continuing need to pursue solutions through the DSU negotiations. 
However, even as so me participants provided updated positions  on specific issues during the focused 
work, some  (though not all)  proponents displayed limited interest in exploring possible compromise 
solutions  in response , apparently because of a belief that their proposals h ad enjoyed informal 
support during a prior stage of the negotiations.  
1.16.   Third, a concern raised by some Members in the recent WTO reform debate has spilled over 
to the DSU negotiations. This notably affected the discussion s of any proposals before the DSB -SS 
relating to special and differential treatment for all Members self-designati ng as developing 
countries.  
1.17.   Fourth, within the context of DSU reform itself, Members' priorities have shifted of late 
towards reforming the Appellate Body in respons e to criticism  expressed by certain Members. 
Dedicated discussions on th e issues raised in  this area  are currently being held in a facilitator -led 
process under the auspices of  the General Council, reflecting Members' sense of urgency. As part of 
those dedicated discussions, several Members proposed amendments to the DSU or DSB decisions. 
These  discussions have , understandably, diverted attention away from the DSB -SS. In this regard, 
I note that while the 12 issues that have been the recent focus in the DSU negotiations, do not, for 
the most part, directly intersect with issues that have been un der discussion in the more recent 
General Council consultative process, there are aspects of issues within the DSU negotiations that 
have also featured to some degree in the facilitator -led process.  
1.3.2   General assessment  
1.18.   Turning to my general assessment of th e focused work conducted by the DSB -SS, I note at 
the outset that my observations are based on (a) my earlier comments and Chair's texts or 
statements  on the 12 issues  and (b) the participants' comments on my Chair's texts or statements. 
They are all compi led in section 2 below .12 I invite the participants and other Members to take note  
also of those  comments, Chair's texts and Chair's statements, as they  contain det ailed information 
and analysis .   
1.19.   The next point of note is that t he DSB -SS has successfully fulfilled the task that it set for itself 
under Chair Karau. It recently completed its focused work on 10 of the 12 issues. For the other  2 
issues, Effective compl iance as well as  Flexibility and Member control, the DSB -SS conducted 
substantive work on certain components. To the extent that other components of those issues were 
not discussed, this was at the specific request of the proponent(s). The DSB -SS has thus reached 
an important milestone.  
                                                
10 See TN/DS/29, p ara. 2.5.  
11 See also TN/DS/30, p ara. 3.3.  
12 All of my earlier comments and Chair's texts or statements were submitted to the participants as and 
when the DSB -SS completed its focused work on each issue.  TN/DS/31  
 
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  1.20.   The focused work conducted by the DSB -SS since November 2016  has in my view been useful  
and indeed necessary. As amply documented in section 2 below , this work has allowed the DSB -SS 
to make progress on several fronts. In particular, the focused work  enabled the DSB -SS: 
• to either improve or clarify most of the existing draft legal texts;  
• to uncover the need for further conceptual or text -based work;  
• to update the participants' understanding of each other's positions bearing in mind the 
changed negotiating environment13; 
• to gain a better appreciation of where there currently is substantial co nvergence among 
the participants and where there is not; and  
• to bring on board new active participants and become aware of their positions.  
1.21.   The focused work has also thrown into relief that in respect of some issues, or  their 
components , the participants are now further apart than was assumed to be the case during prior 
stages of the negotiations. It also became clear in the case of several issues that there is broad 
convergence among the participants in respect of one or more, but not all, components  of those 
issues .  
1.22.   In my assessment, a majority of the participants remain committed to the DSU negotiations 
and interested in achieving outcome s. However, based on what I have said about the challenges 
surrounding these negotiations, it is open to doubt that m ost participants would be prepared to go 
over the 12 issues again at some point in the future. In that sense, the DSU negotiations have in 
my view reached , not just a milestone, but  a critical juncture.   
1.3.3   Specific outcome of the focused work on Strictly co nfidential information  
1.23.   I am pleased to inform Members that the focused work of the DSB -SS has  already  produced 
one specific outcome. This concerns the proposed DSB decision on Strictly confidential information 
(SCI). According to that proposal, the WTO Sec retariat would be directed "to make publicly available 
on the WTO website any procedures adopted by a panel, the Appellate Body or an arbitrator for the 
protection of [strictly confidential information]".14 One Member expressed the view  that some of 
what th e proposed DSB decision intended to achieve could be implemented  even without a  DSB 
decision. I encouraged the WTO Secretariat to look into this.  
1.24.   Thanks to the Secretariat's efforts, it is now possible to search for all published SCI procedures 
on the WTO website via the "Find disputes documents" page.15 I trust that Members will find this 
useful. I wish to underline, however, that this initiative does not address all aspects of the proposed 
DSB decision and is without prejudice to the views of the proponent  and other participants.  
1.4  Possible ways forward  
1.25.   The DSU negotiations are, and can only be, participant -driven. Moreover, a decision to 
approve any amendments to the DSU can be made only by consensus.16 However, d epending on 
their nature, negotiating outcomes can be adopted not only by the Ministerial Conference  or the 
General Council , but also the DSB. Bearing these elements in mind, I propose below for the 
consideration of participants a range of possible ways fo rward. It is useful to distinguish in this 
context between working towards (a) a comprehensive outcome or (b) one or more incremental  
outcomes.   
1.4.1   Comprehensive outcome  
1.26.   Despite the challenges identified in section  1.3.1 above , I am convinced that a comprehensive , 
and hence ambitious,  outcome covering all 12 issues remains a possibility , although it would 
obviously require a degree of political will that has not been evident to date . Also, as  is demonstrated 
                                                
13 The last time tha t a Chair of the DSB -SS circulated a comprehensive assessment was in 2015.  See 
TN/DS/27.  
14 See the Proposed DSB Decision on page 21  below.  
15 Go to https://www.wto.org/english/tratop_e/dispu_e/find_dispu_documents_e.htm , and under 
"Selec t a type of document", select "P rocedures for the pro tection of business/s trictly confidential information ". 
16 Article X:8 of the Marrakesh Agreement Establishing the World Trade Organization.  
 TN/DS/31  
 
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  by my Chair's texts and statements on the various issues in section 2 below ,  it cou ld be difficult to 
reach a consens us on a package that includes every component of every issue. Furthermore, t o 
achieve  a comprehensive outcome, participants would need to commence a horizontal process  in 
these negotiations. As I reported previously17, many Members in fact expressed an interest in having  
such an opportunity for horizontal negotiation across all issues after completion of the focused work 
of the DSB -SS.  
1.27.   My overall assessment of the state of play is that a comprehensive outcome would require 
more work directe d at further clarifying certain aspects of the draft legal texts and resolving the 
conceptual issues that were uncovered during the focused work. A comprehensive outcome would 
also require more flexibility on the part of certain proponents or other partici pants.   
1.28.    Based on the focused work conducted by the DSB -SS and as elaborated in detail in the 
relevant parts of section  2 below , I consider that the following iss ues, or related components of 
these issues, could benefit from more work18:  
a. Remand;  
b. Effective compliance;  
c. Developing country interests (in particular the component concerning the creation of a 
DSB Fund and the  award of legal costs) ; and  
d. Flexibility and Member control.  
1.29.   In a similar vein, the focused work conducted by the DSB -SS and the detailed explanations 
in the relevant parts of section 2 below  lead me to consider that greater flexibility either from the 
proponent(s) or other participants, or both, would be necessary to bring about the necessary 
convergence. This applies notably to the following issues or some of their components19: 
a. Sequencing;  
b. Post-retaliation;  
c. Transparency and amicus curiae  briefs;  
d. Remand;  
e. Panel composition; and  
f. Developing country interests.  
1.30.   Regarding Sequencing, a large majority of participants appear to be favourably disposed 
towards the draft legal text that is now before t he DSB -SS. One participant has signalled 
fundamental concerns, however. In the light of this, I have engaged directly with the proponents 
and the concerned participant to explore specific conceptual adjustments to the proposal that would 
lessen the latter participant's concerns about delays that may occur with mandatory sequencing 
before a complaining party can obtain the DSB's authoriz ation to suspend concessions or other 
obligations . My efforts did not meet with success. It is worth noting also another co ncern was 
expressed about the draft legal text on Sequencing. This relates to the possibility that a responding 
party might make a claim of compliance prematurely, or as a litigation tactic, with the result  that 
the complaining  party would  be barred from r equesting authorization to suspend concessions or 
other obligations until after it has brought, and prevailed in, proceedings under Article 21.5 of the 
DSU. Subsequently, during focused work on Post -retaliation, similar concerns were raised by other 
partic ipants in respect of one of the draft legal texts on that issue.20  
                                                
17 See TN/DS/30, para. 3.3.  
18 Issues are listed in the order in which they appear in section 2 below.  
19 Issues are listed in the order in which they appear in section 2 below.  
20 See the Chair's statement on Post -retaliation on page 28  below, third paragraph.   TN/DS/31  
 
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  1.31.   For Post -retaliation and Remand, an obvious remaining roadblock is that for each of these 
issues there still are two competing draft legal texts. As Chair, I have explored middle ground 
solutions directly with the different proponents with a view to achieving a single, consolidated draft 
legal text. Ultimately, however, no breakthrough was achieved.  
1.32.   Regarding Transparency and amicus curiae  briefs, divergent preferences among the 
participant s persist. During the focused work on this issue, I therefore put before all participants a 
possible middle -ground solution concerning the amicus curiae  briefs component.21 This did not assist 
in narrowing the divide, with notably participants in favour of greater transparency expressing 
hesitation.22 As far as the transparency component is concerned, one of my predecessors had already 
suggested a possible compromise solution .23  
1.33.   Turning to Panel composition, the proponent highlighted that the draft legal text that emerged 
at the end of the focused work on this issue already incorporates various comments received from 
participants and Chairs. To address any remaining concerns r elating to perceived uncertainties 
associated with the proposed procedures on the composition of panels, participants could consider 
exploring an opt -in mechanism as a first step. This could allow Members to gather experience with, 
and gain confidence in, the proposed procedures.  
1.34.   Regarding Developing country interests, my sense is that developed country Members are in 
principle open to working with the proponents towards a solution to their concerns about Geneva as 
the default venue for consultations held under Article 4 of the DSU. In the light of the concerns 
expressed during the focused work about the binding obligation envisaged in the draft legal text, it 
could be explored whether  the proposed obligation could be circumscribed (e.g. by imposing an 
obligation to accept a request from a developing country Member only where the request is that 
consultations be held via secure videoconferencing)  or appropriately softened (e.g. by using "shall 
endeavour" language).   
1.4.2   Incremental outcome(s)  
1.35.   Under a different and less ambitious approach, participants could pursue one or more 
incremental, or partial, outcomes covering a subset of the 12 issues. This could be done f ollowing  a 
process of  horizontal negotiation  covering all 12 issues. Or it could be done in lieu of  a comprehensive 
horizontal process.  
1.36.   An incremental outcome could take the form of an amendment to the DSU or a DSB decision. 
While a DSU amendment would typically produce a legally binding and enforceable rule, a DSB 
decision would normally contain  rules that are non -binding or not directly enforceable through WTO 
dispute settlement. Adopting a DSB decision is procedurally straightforward and  hence  quicker than 
approving and bringing into force a DSU amendment. Moreover, a DSB decision could be pursued 
as an interim incremental outcome. If participants' experience with implementing a DSB decision is 
positive, this may provide impetus  for converting some or all of the contents of a DSB decision into 
an amendment to the DSU.24   
1.4.2.1   Amendment(s) to the DSU  
1.37.   The focused work conducted by the DSB -SS has in my view confirmed that an incremental 
outcome in the form of one or more amendments to the DSU would be within reach of participants. 
More specifically, and as further explained in the relevant parts of section 2 below , there appears to 
be substantial convergence among participants regarding a number of components of issues that 
contemplate amendments to the DSU, including , but not limited to, the following:25 
                                                
21 See RD/TN/DSB/34.  
22 See paragraph 2.99 below.  
23 See TN/DS/27, paras. 3.20 -3.21. 
24 For a case in point, see the 2003 General Council decision on the Implementation of Paragraph 6 of 
the Doha Declaration on the TRIPS Agreement and Public Health  ("TRIPS waiver", document WT/L/540 and 
Corr.1), which in 2005 was converted into a full -fledged  amendment to the TRIPS  Agreement (document 
WT/L/641).  
25 Issues are listed in the order in which they appear in section 2 below.  For some other proposed 
amendment s to the DSU that in one form or another could be within reach, see paragraph 1.42below.  TN/DS/31  
 
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  a. Third-party rights: The component concerning enhanced third -party rights at the panel 
stage, as reflected in Chair Karau's text and further discussed in section 2.2 below  (draft 
Article 10.2(b) and 10.3(a) -(c)); 
b. Strictly confidential information: The proposed new draft Article 18.3 of the DSU, as  
reflected in my Chair's text and further discussed in section 2.3 below ; 
c. Sequencing: The component concerning clarifications of, and improvements to, Article 
21.5 of the DSU, as  reflected in my Chair's text and further discussed in section 2.4 below ; 
d. Timeframes:  The component concerning establishment of panels at the first  request (with 
a possibility for the responding party to request a postponement from the complaining 
party), as reflected in my Chair's text and further discussed in section 2.7 below  (draft 
Article 6.1 of the DSU); and  
e. Flexibility and Member control: The component concerning panelist expertise, as reflected 
in my Chair's text on Panel composition and further discussed in section 2.12 bel ow (draft 
Article 8.2 of the DSU).  
1.4.2.2   DSB decision(s)  
1.38.   As mentioned, a possible incremental outcome could also take the form of a DSB decision. 
This type of outcome likewise appears to me eminently achievable in the light of the focused work 
conducted by the DSB -SS. In my assessment, there is a genuine and rea listic prospect of participants 
achieving an outcome in the form of a DSB decision covering certain  aspects of the following issues, 
or components of issues:26 
a. Mutually agreed solutions;  
b. Third-party rights: The components concerning third -party participati on at the 
consultations stage and notification of third -party interest at the panel stage;  
c. Sequencing: The component concerning notification of measures taken by the complaining 
party following authorization to suspend concessions or other obligations;  
d. Developing country interests: The component concerning advance notice of questions at 
the consultations stage; and  
e. Transparency and amicus curiae  briefs: The component concerning early derestriction of 
final panel reports in their original language.  
1.39.   The proposals identified in items (a), (b), (c) and (d) immediately above have in common 
that they would establish deadlines where the DSU specifies none. The proposed deadlines seek to 
reduce uncertainty and procedural inefficiencies. They relate to the expec ted timing of notification 
of mutually agreed solutions (item (a)), responses to requests to be joined in consultations (item 
(b)), notification of third -party interest at the panel stage (item (b)), notification of retaliatory 
measures (item (c)), and sub mission of questions in advance of consultations (idem (d)). As further 
elaborated in the relevant parts of section  2 below , it is this aspect of the relevant ite ms, i.e. the 
proposal to establish a specific deadline, that enjoys broad support among participants, and a DSB 
decision could potentially focus on that aspect.27   
1.40.   The proposal identified in item (e) does not establish a new deadline  per se , but seeks to g ive 
Members and the  general  public prompt er access to final panel report s in the ir original language , 
without affecting applicable DSU deadlines for adoption of circulated panel reports or appeal. The 
proposal thus enhances transparency . This  connects it to the proposals identified in items (a) -(d), 
since those proposals also foster transparency by establishing deadlines. As  indicated in section 
                                                
26 Except for the last one, issues are listed in the order in which they ap pear in section 2 below.  
27 As explained in the relevant parts of section 2 below, there is not necessarily a similarly high level of 
support among participants for o ther aspects of the relevant i tems.  TN/DS/31  
 
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  2.6.1 below , the pro posal identified in item (e) likewise has broad support among participants in 
view of its practical benefits.  
1.41.   It is important to make clear that a ll but one of the proposals  identified in items (a) -(e) above 
are for amendments of the DSU. Participants cou ld consequently pursue incremental outcomes of 
that type. However, in this subsection I am concerned with identifying, against the background of 
the recently conducted focused work of the DSB -SS, a possible interim incremental outcome in the 
form a DSB dec ision that could be deliverable in the short term.28 As noted above, besides its intrinsic 
value, such an outcome could serve to enhance the negotiating group's self -confidence and provide 
a stepping stone for further progress.  
1.42.   I also underline that there are other components of issues in respect of which the proponent 
proposes a DSB decision. This includes Panel composition, Amicus curiae  briefs, Flexibility and 
Member control, and Strictly confidential information. The combination of components as outlined in 
items (a) to (e) above is but one option in this regard that  reflect s my assessment of the level of 
participant support for the rel evant aspect of the components . This particular combination also  has 
a unifying theme, which revolves around reducing procedural uncertainty through deadlines and 
providing greater transparency , and it thematic ally fits with an already adopted DSB decision  on 
agreed "Working Practices Concerning Dispute Settlement Procedures".29 
1.5  Conclu ding observation  
1.43.   In concluding my overview of the state of play and possible ways forward, I wish to express 
my sincere thanks to proponents and other participants alike for th eir participation in DSB -SS 
meetings and Chair consultations and their thoughtful contributions to the extensive focused work 
undertaken since November 2016. I greatly appreciate the support extended by participant officials, 
both in capitals and Geneva, t o this long -term work project of the DSB -SS. It appears to me all the 
more important, therefore, that the time and effort that participants have invested in this project is 
rewarded with concrete outcomes.    
1.44.   While the DSB -SS has made significant headway s ince November 2017 in deepening 
participants' understanding of the issues and clarifying and improving the draft legal texts, the 
sobering reality is that this negotiating group has been at work for almost eighteen years and thus 
far no agreed outcome can be credited to it. I therefore encourage the group, once again, to redouble 
its efforts to concentrate on what is doable and be open to delivering results through incremental 
steps. In my view, the outcome reached at MC10 in Nairobi on one of the three pil lars of the 
agricultural negotiations affords a timely and inspirational example that this group could follow with 
confidence in view of all the technical work that has now been accomplished.  
2  SPECIFIC RESULTS OF THE FOCUS ED WORK CONDUCTED ON  THE 12 ISSUES  
2.1.  This section contains, for each of the 12 issues, the Chair's text or statement that the Chair 
circulated to Members under his own responsibility in advance of the closing meeting on each issue. 
The Chair's text or statement was accompanied in each case b y explanatory comments from the 
Chair. These are also reproduced below. Additionally, Members provided comments on the Chair's 
text or statement, which are likewise summarized below for each issue.  
                                                
28 During the 2017 stock -taking exercise of the DSB -SS, some participants expressed interest in 
exploring outcomes in the form decisions or recommendations of the DSB (rather than amendments to the 
DSU), because "this could lead to concrete results in the shorter term" (TN/DS/30, para. 3.4). It is also worth 
noting that in the context of the dedicated discussions in the Gener al Council on the functioning of the 
Appellate Body, several Members proposed, not amendments to the DSU, but General Council or DSB 
decisions. See, for instance, WT/GC/W/767/Rev.1, WT/GC/W/768/Rev.1, WT/GC/W/769.  
29 See WT/DSB/6 . This DSB decision covers  (a) the "date of circulation" in the DSU, (b) communications 
under the DSU, (c) time -periods under the DSU and other covered agreements, and (d) notifications of 
requests for consultations.  TN/DS/31  
 
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  2.1  Mutually agreed solutions  
2.1.1   Comments from the Chair on his text on Mutually agreed solutions  
2.2.  The Chair's  text below  on Mutually agreed solutions was circulated in advance of the DSB-SS 
meeting of 1  December 2016  and presented under Chair  Karau 's own responsibility . It is without 
prejudice to Members' final positions. Focused work on Mutually agreed solutions was conducted on 
the basis of the most recent draft legal text on MAS.   
2.3.  It emerged during the discussions that the text still raised concerns for some Members. Fi rst, 
some Members had reservations about the option of each party to the dispute making a separate 
notification. These Members expressed the view that the content of the notification should be agreed 
by the parties. In their view, if and when a mutually ag reed solution could be found, the parties 
should have no difficulties agreeing on making a joint notification about the terms of that solution. 
Other Members, however, submitted that there could be circumstances under which a party to a 
mutually agreed sol ution would wish to separately notify its terms and potentially at a greater level 
of detail than the other party. For this reason, many Members also did not support a proposal to 
qualify the draft text by adding that the parties should agree on the level of detail to be provided in 
notifications.   
2.4.  Second, it was noted that the term "a matter" as opposed to "the matter" in the first sentence 
of the draft text could be read to imply a requirement to notify also partial solutions to a dispute. 
One Member considered that such a requirement might dissuad e parties from reaching a mutually 
agreed solution.  
2.5.  In addition, the question was raised in which factual situations parties would be required to 
notify a solution under Article 3.6 of the DSU. In response, it was observed that the draft text under 
discus sion did not seek to clarify Article 3.6 in this respect.  
2.6.  These remaining points of difference notwithstanding, there was general confirmation of 
interest in increasing the transparency of the terms of mutually agreed solutions through a 
requirement to not ify their terms "in detail".  
2.7.  Moreover, there was general convergence among Members that it was useful to clarify that 
each of the parties to a mutually agreed solution has the obligation to notify it, notwithstanding 
different views as to the possibility of separate notifications.  
2.8.  Similarly, there was general convergence on the desirability of setting a fixed deadline for 
notifying mutually agreed solutions. Several developing country Members indicated, however, that 
the 14 -day deadline set out in the mos t recent draft text was too short. This concern met with broad 
support, and there was general willingness to extend the deadline. A few Members indicated, 
however, that any extension of the deadline should be limited and that it would raise a concern if 
parties were given more than a month to notify a mutually agreed solution.  
2.9.  Certain drafting and consistency points were also discussed. A few Members supported 
inserting in the most recent draft text a reference to "consultation" provisions as well as dispu te 
settlement provisions. No Member raised any concern in this respect.  
2.10.   Taking account of the views expressed by Members, on 29 November 2016 I circulated an 
updated Chair's text for Members' consideration on a without prejudice basis.  That text introduc ed 
two new proposed changes beyond those already present in the most recent draft text: (i) insertion 
of a reference to "consultation" provisions to clarify that solutions mutually agreed at that stage of 
dispute settlement are covered, and (ii) extension of the new deadline for notifying mutually agreed 
solutions from 14 days to 30 days.  
2.1.2   Comments from Members on the Chair's text  
2.11.   Members did not indicate specific concerns about the changes reflected in the Chair's text. 
Several Members that spoke expressed  support for increasing transparency of mutually agreed 
solutions and said that they could join the text if there is a consensus. One  Member indicated that TN/DS/31  
 
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  it is important, however, to retain some degree of flexibility in notification, so as not to discour age 
mutually agreed solutions.  
2.12.   A different Member stated that there is value in clarifying the notification of mutually agreed 
solutions as currently provided for in Article 3.6 of the DSU, in particular who has the obligation to 
notify and when. That Mem ber proposed using the phrase "the matter" rather than "a matter", noting 
that Articles 3.4 and 12.7 of the DSU also used "the matter". Another Member considered that 
referring to "a  matter" indicates that a partial solution would be subject to notificatio n, and would 
warrant further discussion.  
2.13.   One Member stated that addition of "consultation and" and "each party" are improvements to 
the current text of Article 3.6. With respect to "each party", several Members indicated that providing 
for the possibility of having separate notifications from the parties, and with potentially different 
levels of detail, would cause some concerns.  
2.14.   One Member indicated that providing for a deadline for notifying mutually agreed solutions 
adds real value to Article 3.6 and wo uld make that provision operational. In that Member's view, 
addition of a deadline would be a sufficient improvement.  Another Member considered that the 30 -
day period for notification is appropriate and that providing for the notification period in number of 
days is preferable to indicating it in weeks.   
2.15.   An additional Member stated that the words "in detail", as envisaged in the underlying draft 
legal text, serves the purpose of prompting more information, but is not overly prescriptive. Another 
Member sta ted that it still has concerns about adding that phrase.  
2.1.3   Chair's text30 
Where the parties to a dispute reach a mutually agreed solution with respect to a matter 
raised under the consultation and  dispute settlement provisions of the covered 
agreements, each party shall notify the solution to the DSB and relevant Councils and 
Committees. The parties shall submit jointly or, if a party so prefers, separately, the 
notification in writing within 14 30 days after reaching the solution and shall set out in 
detail t he terms of the solution. Any  Member may raise any point relating to the solution 
in the DSB and the relevant Councils and Committees.  
_______________  
 
 
  
                                                
30 Chair Karau's proposed deletions of current DSU text are reflecte d in strikeout  and proposed new text 
is in bold. TN/DS/31  
 
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  2.2  Third -party rights  
2.2.1   Comments from the Chair on his text on Third -party rights  
2.16.   The Chair's text below  on selected components of Third-party rights  was circulated in advance 
of the DSB-SS meeting of 22 February 2017  and presented under Chair  Karau 's own responsibility . 
It is without prejudice to Members' final positions.  
2.17.   Based on my prior consultati ons with Members and my assessment of work under my 
predecessor, I determined that the negotiating group would conduct focused work on three 
components of the issue of Third-party rights : (i) the right to join in consultations as third parties, 
(ii) enhanc ed third -party rights in panel proceedings, and (iii) the timing of the notification of interest 
to participate in panel proceedings as a third party.  
2.18.   Focused work on the issue of Third-party rights  was conducted on the basis of the previously 
available draft legal text on Third-party rights31 as well as with reference to new proposals submitted 
in the course of the focused work  on Third-party rights .32  
2.19.   Taking account of the views expressed by Members  in the co urse of our focused work, on 
15 February 2017 I circulated a Chair's text for Members' consideration on a without prejudice basis. 
That text identifies a possible common baseline reflecting the progress and convergence that was 
achieved during th e focused work on the three components. I indicated to Members that this text 
should not be taken as representing a conclusion by the Chair that further improvements in respect 
of these components would not be possible. Provisions regarding protection of c ertain confidential 
information submitted to a panel by the parties were placed in square brackets, as this was reserved 
for future work on the issue of Strictly confidential information . 
Third -party participation at the  consultations  stage  
 
2.20.   It became clear from the negotiating group's focused work on this component that the most 
recent draft legal text raised concerns for some Members. In particular, several Members were 
concerned about automatic acceptance of Members as third parties in consult ations in the absence 
of timely rejection by the Member to which the request for consultations was addressed (the 
responding party). In these Members' view, automatic acceptance after expiry of a strict deadline 
could raise practical difficulties for the r esponding party, and it could undermine a key function of 
consultations, which is to help the parties to settle their dispute.  
2.21.   At the same time, there was broad convergence among Members on three points. First, there 
was broad agreement that it would be u seful to specify an explicit time -period within which the 
responding party should respond to a Member's request to be joined in consultations. In this regard, 
Members discussed what length of time would be appropriate to provide responses, taking account 
of any administrative constraints that some Members may face. There was also discussion of the 
suggestion by a few Members that the draft text refer to a "reasonable" time -period rather than 
specify a number of days. Some Members suggested that any explicit  time-period should start to 
run from the date of the applicant Member's request, but other Members preferred that the date by 
which a response should be provided  be calculated by reference to the date of consultations. Second, 
although a few Members prefe rred a binding deadline, there was broad support for a soft (indicative) 
deadline. Third, while a few Members considered it sufficient that responses be provided only in 
cases of acceptances, many participants considered that responses should be provided i n writing 
and for both acceptances and rejections.   
2.22.   The text that I circulated on third -party rights in consultations would enhance transparency 
by introducing a soft (indicative) deadline for responding parties to provide written information on 
their acc eptances and rejections of requests made by other Members to be joined in consultations. 
The deadline is expressed as a number of days counted from the date of consultations, that takes 
into account the 10 -day deadline (within which applicant Members must make requests to be joined 
                                                
31 As contained in JOB/DS/14, pp. 3 and 5 -6. Articles 4.11 and 10 of the DSU contain the current 
provisions of the DSU that are relevant to the three components of Third -party rights on which the negotiating 
group conducted focused work . 
32 As contained in  JOB/DS/21/Rev.1, and JOB/DS/22.  See Annex 1 below, sections 2.2 and 2.3 . TN/DS/31  
 
- 14 - 
 
  in consultations) in Article 4.11 of the DSU and the 30 -day deadline (within which a responding party 
must enter into consultations) in Article 4.3 of the DSU.   
2.23.   At the closing meeting, several Members stated that the Chair's tex t reflected Members' 
convergence and constituted  an improvement over the existing Article 4.11 of the DSU. Some 
Members indicated that they broadly agreed with the text as proposed. Other Members raised points 
of drafting. Specifically, some Members were c oncerned that the draft text could be read to suggest 
that notification of responses to the DSB was no longer obligatory. A few Members raised a concern 
that the draft text may not unambiguously indicate that a failure by the responding party to respond 
within the deadline does not give the applicant Member the right be joined in the consultations.  
Notification of third -party interest at the panel stage  
 
2.24.   During the negotiating group's focused work on notifications of third -party interest, there was 
broad c onvergence on codifying the current practice of requesting Member to notify their interest in 
participating as third parties within 10 days of panel establishment. Members broadly supported the 
idea of specifying a time -period within which a Member could s ecure its participation as a third party 
at the panel stage without requiring the parties' or panel's agreement. While one developing country 
Member preferred a longer deadline, other Members considered the 10 -day period to be sufficient 
given that the est ablishment of panels comes well after the circulation by the WTO of a request for 
establishment of a panel and a request for consultations.  
2.25.   Many Members considered, however, that it was necessary to also provide for some flexibility 
in connection with any deadline that would be specified, including because of the situation of 
developing country Members, such that a Member could in certain circumstances participate as a 
third party even if it did not notify its interest within 10 days. However, there remaine d significant 
points of difference among Members in this respect. Several Members indicated that any flexibility 
should not interfere unduly with the composition of panels or the conduct of panel proceedings. For 
some Members, any flexibility should theref ore be subject to the parties' agreement, whereas other 
Members considered that the panel should decide after consulting the parties, possibly based on 
criteria to be included in the DSU, whether a Member having notified its interest outside the 10 day -
period could participate as a third party. Another Member suggested that the panel be given a 
decision -making role in such cases only if the parties disagree over whether another Member could 
participate as a third party.     
2.26.   The text that I circulated on not ifications of third -party interest  would enhance clarity by 
codifying the current practice based on the  statement made by the Chair of the GATT Council at the 
Council's meeting of 21 June 1994. At the GATT Council meeting of 21 June 1994, the Council agree d 
with a proposal by the Chair to agree to the following practices, without prejudice to the rights of 
contracting parties under established dispute settlement procedures: "Delegations in a position to 
do so, should indicate their intention to participate as a third party in a panel proceeding at the 
Council session which establishes the panel. Others who wish to indicate a third -party interest should 
do so within the next ten days" .33 
2.27.   At the closing meeting, no Member raised concerns about providing greater  clarity by 
codifying the existing practice of requesting notification of third -party interest within 10 days after 
panel establishment. One Member suggested that, as in the GATT Council Chair's statement, it could 
be made explicit that third -party  notific ations can be made at the DSB meeting establishing a panel 
or subsequently in writing. A developing country Member continued to prefer a longer time -period. 
Moreover, several Members reaffirmed their interest in explicitly clarifying what happens if a Memb er 
fails to notify its interest within the 10 -day soft (indicative) deadline (e.g. whether participation as 
a third party is subject to the parties' agreement or whether the panel should decide after consulting 
the parties).  
Enhanced third -party rights at  the panel stage  
 
2.28.   During the negotiating group's focused work on Third-party rights  at the panel stage, there 
was general convergence  around the possibility of enhancing third -party rights to include the right 
to receive all written submissions of the part ies and to be present at all substantive meetings of a 
                                                
33 See Statement by the Chairman of the Council, GATT document C/COM/3; Minutes of GATT Council 
meeting of 21 June 1994, GAT T document C/M/273, p. 15.  TN/DS/31  
 
- 15 - 
 
  panel with the parties. While there was no specific objection to third parties having such enhanced 
access to panel proceedings, one Member considered that proposals previously discussed by the 
negotia ting group on public transparency, including with regard to the opening of substantive panel 
meetings for public observation and publication of the parties' written submission, would provide the 
same degree of access to third parties and all other Members.  In addition, there was broad 
convergence around making explicit third parties' right to respond to questions from the panel.  
2.29.   A group of Members also made a new proposal that would build upon the above -mentioned 
enhanced third -party rights. Under the prop osal, third parties would continue to have the opportunity 
to make an oral statement at the first substantive meeting of a panel, but would provide their written 
submissions at a later stage of the panel proceedings. Specifically, third parties would make a written 
submission after receiving the written rebuttals of the parties, but prior to the second substantive 
meeting of the panel. The proponents explained that this was intended to maintain the same number 
of opportunities for active third -party partici pation, while allowing third parties to participate more 
meaningfully at a later stage of the panel proceedings.  
2.30.   However, several Members raised concerns about providing any additional opportunities for 
active third -party participation, or about allowing the same opportunities for active participation later 
in panel proceedings, citing burdens that this could place on the parties to the dispute or the 
possibility of new arguments being raised by third parties at a very late stage in the proceedings. 
Severa l Members also stressed the importance of maintaining the balance between the rights and 
interests of the parties and those of third parties. At the same time, other Members recognized the 
value of active third -party participation and considered that there  were potential advantages in 
allowing third parties to actively participate after the first substantive meeting of a panel.  
2.31.   The text that I circulated on enhanced third -party rights at the panel stage would increase 
clarity by codifying certain aspects o f established dispute settlement practice at the panel stage. It 
would further improve access for third parties at the panel stage by increasing the opportunities for 
observation of substantive panel meetings and receipt of written submissions of the parti es. 
2.32.   At the closing meeting, there was general support for the suggested draft text. At the same 
time, one Member reiterated its view that existing proposals on public transparency would make it 
unnecessary to provide for the right of third parties to be pr esent at all substantive meetings of a 
panel with the parties and to receive all written submissions of the parties. Another Member stated 
that the text could raise a possible concern because it brought the rights of third parties close to 
those of parties .   
Enhanced third -party rights at the appellate review stage  
 
2.33.   Although this was not one of the components of the issue of Third-party rights  on which the 
negotiation group conducted focused work, at the request of several Members the group under 
"other bu siness" discussed the participation of Members as third participants on appeal.     
2.34.   According to these Members, it was important to provide for the possibility for Members to 
join as third participants at the appellate review stage even if they were not th ird parties at the 
panel stage. They noted that the issues discussed on appeal could be partly different, and there 
could be legitimate reasons for not participating at the panel stage, such as recent accession of the 
Member.  
2.35.   Many Members supported this pr oposal. Other Members raised concerns, however. One 
Member indicated that this should be contemplated only as a transparency -enhancing measure, and 
the participation of additional Members should therefore be limited to receiving documents and 
passively obs erving the hearing. Another Member considered that this would be appropriate only if 
the parties agreed to additional third participants. Other Members were not in favour, submitting 
that new third participants would increase the workload of the parties an d that the parties would 
need to address what could be new arguments for the first time during the Appellate Body hearing.   
2.36.   As this was not one of the components selected for  focused work and there was limited 
convergence, I did not circulate a Chair's te xt on this component for Members' consideration.  TN/DS/31  
 
- 16 - 
 
  2.2.2   Comments from Members on the Chair's text  
2.37.   Several Members that spoke, including proponents, expressed appreciation and agreement 
with the Chair's pragmatic and result -oriented approach, which aimed to identify a common baseline 
reflecting incremental progress . Several Members stated that the Chair 's text reflects accurately the 
state of the negotiations on this issue and agreed with the Chair's assessment in terms of broad 
convergence on possible incremental improvements among a majority of Members. Several 
Members stated that the Chair's text refl ects an improvement to the current text of the DSU and 
that they agree with many of its aspects. A couple of Members indicated an interest in exploring 
further improvements beyond those reflected in the Chair's text.  
2.38.   Reflected below are comments by Members  on specific aspects of the Chair's text.  
Third -party participation at the consultations stage  
  
2.39.   One Member expressed a preference for using the phrase " the Member requesting to be joined 
in consultations " rather than " the applicant Member ".  
2.40.   One Member reiterated its concern that the text leaves room for ambiguity in that it appears 
to provide for the possibility for automaticity in joining consultations, and that it therefore needs to 
be discussed further.  
2.41.   Several Members indicated that setting a  deadline for responding to a request to join 
consultations would be an improvement. Some Members expressed a preference for a soft obligation 
concerning the deadline. One Member suggested using "shall endeavour" language. However, one 
Member agreed with t he hard five -day deadline in the Chair's text. Another Member wondered 
whether a mere five -day deadline allows for sufficient flexibility. It was noted that it takes time to 
assess the existence of a substantial trade interest asserted by a requesting Memb er. One Member 
considered that it is better not to specify the number of days, or alternatively if a number is indicated, 
to include the qualification "to the extent possible". For that Member, the number indicated would 
be acceptable with that qualificati on. A couple of Members suggested that the deadline be 
established by reference to the request for, instead of the date of, consultations, as the date of 
consultations would not be known to other Members.  
2.42.   One Member expressed the view that independently o f whether the deadline for responding 
to a request to join consultations is adopted as a soft or a hard deadline, the obligation to notify the 
DSB of a Member's response to a request to join consultations should be a hard obligation. According 
to that Memb er, under the Chair's text both the deadline and the notification obligations are soft.   
2.43.   Another Member also suggested that "in writing" should be added in the first sentence of 
Article 4.11 to read in relevant part, "... in writing 10 days after the date  of circulation  ...".  
Notification of third -party interest  at the panel stage  
 
2.44.   Several Members expressed support for codifying the current practice of indicating a Member's 
interest to join a dispute as a third party at the relevant DSB meeting or else in  writing within 10 
days from panel establishment. Some Members indicated that while codifying the practice would be 
preferable, there should also be reasonable flexibility. One Member would prefer to go beyond the 
hortatory language used in the Chair's tex t. 
2.45.   A number of Members stated that while they had no particular concern about the 10 -day 
period as such, it would be useful to clarify what happens if a Member signals its intention to join as 
a third party after the 10 -day period. One Member reiterated th at the 10 -day period remained a 
concern. Another Member responded that consultations take place before a panel is established, 
with the consequence that a Member has more than 10 days to make its decision on whether to 
notify its interest to participate as  a third party before the panel.  
Enhanced t hird-party rights at panel stage  
 
2.46.   Several Members stated that they could, in principle, agree to the Chair's text in this regard. 
Several Members also expressed the view that qualifying third -party rights as "enha nced" is not TN/DS/31  
 
- 17 - 
 
  necessary. Accordingly, the Chair's text below has been adjusted to eliminate the word "enhanced" 
from one of the subheadings.  
2.47.   Some Members indicated that they could agree to granting third parties active rights up until 
the first substantive meeting and passive rights following that meeting. Another Member indicated 
that it would like to keep the option of panels enhancing active rights on an ad hoc  basis, including 
following the first substantive meeting. A further Member reiterated its conce rn about granting 
passive rights to third parties following the first substantive meeting. One other Member expressed 
a concern about blurring the difference between parties and third parties.  
2.2.3   Chair's text34 
Article 4  
Consultations  
… 
Article 4.11.  Whenever a Member other than the consulting Members considers 
that it has a substantial trade interest in consultations being held pursuant to paragraph 
1 of Article XXII of GATT 1994, paragraph  1 of Article XXII of GATS, or the correspondin g 
provisions in other covered agreements4, such Member may notify the consulting 
Members and the DSB, within 10 days after the date of the circulation of the request 
for consultations under said Article, of its desire to be joined in the consultations.   Such 
Member shall be joined in the consultations, provided that the Member to which the 
request for consultations was addressed agrees that the claim of substantial interest is 
well-founded.   In that event they shall so inform the DSB.   The Member to which t he 
request for consultations was addressed should inform [the Member 
requesting to be joined in consultations][the applicant Member] and the DSB 
in writing no later than [5] days prior to the date of consultations whether it 
accepts the request to be joine d in consultations.  If the request to be joined in 
the consultations is not accepted, the applicant Member shall be free to request 
consultations under paragraph 1 of Article XXII or paragraph  1 of Article XXIII of GATT 
1994, paragraph 1 of Article XXII or  paragraph 1 of Article XXIII of GATS, or the 
corresponding provisions in other covered agreements.  
_______________  
4 (unchanged footnote)  
... 
Article 10  
Third Parties  
… 
Article 10.2.  Any Member having a substantial interest in a matter before a panel 
and having notified its interest to the DSB (referred to in this Understanding as a "third 
party") shall have an opportunity to be heard by the panel and to make written 
submissions to the panel.   These submissions shall also be given to the parties to the 
dispute and shall be reflected in the panel report.  
Deadline for notification  
(a) Any Member interested in participating as a third party before a panel shall 
notify its interest to do so to the DSB and each party. Such Member should 
                                                
34 Chair Karau's proposed deletions of current DSU text are reflected in strikeout  and proposed new text 
is in bold.  TN/DS/31  
 
- 18 - 
 
  notify its interest within a period of no more than 10 days after the date of 
establishment of the panel . 
Rights in  panel proceedings  
(b) Each third party has the right to:  
(i) be present at any substantive meeting of the panel with the parties to 
the dispute preceding the issuance of the interim report to the parties[, except 
for portions of such meetings w hen information designated by a Member as 
strictly confidential in accordance with the procedures referred to in paragraph 
4 of Article 18 is discussed];  
(ii) make a written submission prior to the first substantive meeting;  
(iii) make an oral statement to  the panel, and respond to questions from the 
panel, at a session of the first substantive meeting set aside for that purpose; 
and 
(iv) respond in writing to questions from the panel arising out of the session 
set aside for third parties at the first subst antive meeting.  
Article 10.3.          Third parties shall receive the submissions of the parties to the 
dispute to the first meeting of the panel.  
(a) Each party to the dispute shall make available to each third party its 
written submissions to the panel ( other than any submission made subsequent 
to the issuance of the interim report to the parties) at the time such 
submissions are made[, except for information designated by a Member as 
strictly confidential in accordance with the procedures referred to in paragraph 
4 of Article 18*].  
_______________  
[* This provision does not preclude third parties from receiving 
information designated by a Member as strictly confidential if this is 
expressly provided for in the specific procedures adopted by the panel in 
accordance with paragraph 4 of Article 18 for the purposes of that 
dispute.]  
(b) Each third party shall make available its submissions to each party to the 
dispute and to every other third party at the time such submissions are made.  
(c) The panel shall reflect the submissions of third parties in its report.  
_______________  
 
 
  TN/DS/31  
 
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  2.3  Strictly confidential information (SCI)  
2.3.1   Comments from the Chair on his text on SCI  
2.48.   The Chair's text below  on SCI was circulated in advance of the DSB-SS meeting of 12 June 
2017 and presented under Chair  Seck's own responsibility . It is without prejudice to Members' final 
positions.  
2.49.   The text reflects possible incremental improvements on which, in the Chair's assessme nt, 
there could be support among Members, taking into account the views of Members expressed during 
the focused work of the DSB -SS on SCI .  
2.50.   This text should not be taken as representing a conclusion by the Chair that further 
improvements in respect of SCI would not be possible. Rather, the text seeks to identify a possible 
common baseline reflecting the progress and convergence that has been achieved during the focused 
work conducted by the DSB -SS.    
2.51.   Draft Article 18.3 of the DSU would constitute an improv ement over the current DSU in several 
respects:  
• It enhances clarity for Members and individuals or entities providing SCI by clarifying in the 
DSU itself that additional protection for SCI is available in proceedings under the DSU.  
• It creates greater certa inty by providing that, if and when a party requests the adoption of 
SCI procedures for the protection of strictly confidential information that it wishes to submit 
in the context of the proceedings under the DSU, the relevant WTO adjudicator is required t o 
adopt such procedures.  
• It ensures consistency of the level of protection across successive proceedings in a dispute, 
by providing that the level of protection of SCI set in any initial proceedings (e.g. before a 
panel) will not be lower in any subsequen t proceedings (e.g. before the Appellate Body) in 
which the SCI may also be used. This may also enhance the confidence of individuals or 
entities providing SCI.  
• It provides assurance to individuals or entities providing SCI that their information will be used 
by those authorized to access the information (i.e. the panel, the Appellate Body, the 
arbitrator, the WTO Secretariat, the parties and the third parties) only for the purposes of the 
proceedings in which the information has been submitted or forms pa rt of the record .   
2.52.   Draft Article 18.3 is non -prescriptive regarding the operational details of the SCI procedures 
to be adopted. It thus  preserves the flexibility to adapt SCI procedures on a case -by-case basis, 
including with regard to the definition of SCI, the precise level of protection and other operational 
aspects.  
2.53.   The proposed Decision by the DSB would directly support draft Article 18.3 of the DSU by 
providing access to SCI procedures, both past and current, for parties that are considering whether  
to request the adoption of SCI procedures or are consulted by a WTO adjudicator on proposed SCI 
procedures.  Ready access to a range of actual SCI procedures may also reduce uncertainty for 
individuals or entities considering whether to provide SCI. Public  availability of such  SCI procedu res 
through the WTO website would also  facilitate greater access compared to the practice of annexing 
SCI procedures to WTO adjudicators' reports or decisions.  
2.54.   The text on Third-party rights  builds on former DSB -SS Chair K arau's text on components of 
Third-party rights . The new text in Articles 10.2(b)(i) and 10.3(a) would constitute an improvement 
over the initial draft in document JOB/DS/14 in that it preserves the current situation under which 
SCI procedures typically grant third parties access to SCI, while also mai ntaining the possibility, 
where this is deemed necessary, to restrict access to SCI for third parties on a case -by-case basis, 
through procedures adopted pursuant to draft Article 18.3 of the DSU that are consistent with the 
DSU.  
 TN/DS/31  
 
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  2.3.2   Comments  from Members on the Chair's text  
2.55.   The proponent on SCI noted that as explained by the Chair, the Chair's text is less ambitious 
than the previous draft legal text. The proponent still sees value in having definitions and objections 
procedures. However, the  proponent agreed that the key element was the right to have SCI 
procedures adopted upon request. It also understood that aiming for incremental changes could be 
the best way to achieve convergence, and for this reason it would be able to support the Chair 's text 
if this were needed to achieve a consensus on SCI.  
2.56.   Several Members that spoke stated that they have no major concerns with the text proposed 
by the Chair, that it would result in incremental improvements, and that it would be a good basis 
for futu re discussions. One Member thanked the Chair for having responded to the concerns 
expressed by some Members. Moreover, while another Member stated that the Chair's baseline 
approach should not preclude greater ambition, a further Member expressed the view that it is 
generally better to go with straightforward than with complicated text like the previous draft legal 
text.  
2.57.   A couple of Members noted that the recent new proposal  on SCI  by one Member35 bears some 
similarities with the Chair's text. One Member in dicated that it prefers the Chair's text for its clarity 
and accuracy and another Member expressed concern about aspects of the new proposal (e.g. if 
under the proposal a party's SCI designations were binding on WTO adjudicators). The new 
proponent on SCI indicated that the Chair's text incorporates the main elements that are also 
reflected in its proposal, including the right to have SCI procedures adopted upon request. This 
proponent further stated that it is willing to work with other Members on a text t hat can attract a 
consensus.  
2.58.   Reflected below are comments by Members on specific aspects of the Chair's text.  
Draft Article 18.3  
 
2.59.   Several Members stated that the Chair's text would be a good basis for future discussions. 
With regard to the first sentence of the new Article 18.3, one Member stated that providing for a 
requirement to adopt procedures for the protection of strictly confidential information  would be an 
improvement. One Member indicated that it would favour a general reference  to "confidential 
information " rather than to "strictly confidential information" and leave it to parties to use more 
specific terms . 
2.60.   With regard to the second sentence of draft Article 18.3, one Member considers that it adds 
important value. In that Member's view, the same  level of protection must be maintained on appeal. 
One Member likewise saw as positive the continuing protection of SCI across proceedings. It inquired 
about the drafting, specifically the reference to "newly submitted information" on appeal. That 
Member i ndicated that usually parties would not submit new information on appeal. Another Member 
indicated that it was important that any new Article 18.3 would not preclude the Appellate Body 
from reviewing a panel's findings of law on SCI.  
2.61.   With regard to the thi rd sentence, the same Member wondered whether SCI was misused in 
the past. The same Member noted that draft Article 18.5 of the proposal provides for obligations on 
various parties, e.g. the WTO adjudicator, the Secretariat, the parties to the dispute  and third 
parties , to protect SCI. The Member inquired whether this provision should be included in the Chair's 
text. Another Member stated that the third sentence is not necessary.  
Proposed DSB Decision  
 
2.62.   A number of Members that spoke stated that the propose d DSB Decision would improve 
transparency and thus instil confidence in the system. It was noted that the public should be able to 
know what procedures WTO adjudicators are using. One Member noted that given that draft Article 
18.3 is shorter than in the p revious draft legal text, the proposed DSB Decision becomes all the 
                                                
35 See Annex 1 below, section 3.2.  TN/DS/31  
 
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  more significant for parties that are less experienced because they would have something to draw 
on. 
2.63.   A number of Members expressed a preference for removing the phrase "subject to the 
agreement of the parties" in item (ii) as in their view this would devoid the proposed DSB decision 
of some of its value. One Member stated in this respect that it fails to see what concerns with 
publishing new SCI procedures could possibly arise.  
2.64.   A couple of Members did not consider the proposed DSB decision to be very useful because 
WTO dispute settlement practice shows that parties are in any event free to agree to the publication 
of the procedures.  
Third -party rights  
 
2.65.   Some  Members that spoke stated that the y support the Chair's text. One Member noted that 
the text on Third -party rights is dependent on an agreement on draft Article 18.3.  
2.66.   A couple  of Members suggested to delete the phrase "consistent with this Understanding" 
because, in their view, it does no t add a lot of value to the text.  
2.3.3   Chair's text36 
Article 18  
Communications with the Panel or Appellate Body  
… 
3. Where requested by a party to the dispute, the panel, the  Appellate Body 
and the arbitrator acting pursuant to Articles 22 or 25 of this Understanding 
shall adopt procedures for the protection of strictly confidential information, 
including business confid ential information, after consulting the parties to the 
dispute. The Appellate Body and the arbitrator shall adopt procedures that 
afford a level of protection not lower than that provided by the panel and that 
allow for the designation as strictly confide ntial information of newly -
submitted information. The panel, the Appellate Body, the arbitrator, the WTO 
Secretariat, the parties and the third parties shall use information obtained in 
proceedings under this Understanding and protected under procedures 
adopted pursuant to this paragraph only for the purposes of the proceedings 
in which the information forms part of the dispute record.  
Proposed decision by the DSB on protection of SCI  
 
The DSB directs the WTO Secretariat and the Appellate Body Secretariat t o 
make publicly available on the WTO website: (i) all published additional 
working procedures for the protection of strictly confidential information (SCI 
procedures), including business confidential information, adopted by a WTO 
adjudicator in past dispu tes; and (ii) subject to the agreement of the parties, 
any SCI procedures adopted by a WTO adjudicator after the date of this 
decision, upon adoption of the final version of these procedures and following 
their transmission by the WTO adjudicator. Public a vailability of these SCI 
procedures furthers transparency and provides a reference tool for parties to 
a dispute that are considering whether to request the adoption of such 
procedures.  
                                                
36 Regarding the proposed new Article 18.3 of the DSU, Chair Seck's proposed ne w text is in bold. 
Regarding the proposed new DSB decision, Chair Seck's proposed new text is in bold. Regarding Article 10.2 
and 10.3 of the DSU, bold text  indicate s additions  proposed  by former Chair Karau in connection with 
Third-party rights, and bold underlined text  indicates additional text proposed by Chair Seck in connection 
with SCI.   TN/DS/31  
 
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   __________________ ____ 
 The expression "WTO adjudicator" refers to panels, the  Appellate Body and arbitrators 
acting pursuant to Articles 22 or 25 of the DSU.  
ARTICLE 10 – Third -Party Rights in Panel Proceedings  
Article 10.2  
(b)  Each third party has the right to:  
(i) be presen t at any substantive meeting of the panel with the parties to 
the dispute preceding the issuance of the interim report to the parties, subject 
to any procedures adopted by the panel in accordance with paragraph 3 of 
Article 18 that are consistent with this  Understanding ; 
… 
Article 10.3           
(a) Each party to the dispute shall make available to each third party its 
written submissions to the panel (other than any submission made subsequent 
to the issuance of the interim report to the parties) at the time  such 
submissions are made, subject to any procedures adopted by the panel in 
accordance with paragraph 3 of Article 18 that are consistent with this 
Understanding . 
… 
_______________  
  TN/DS/31  
 
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  2.4  Sequencing  
2.4.1   Comments from the Chair on his text on  Sequencing  
2.67.   The Chair 's text below  on Sequencing was circulated in advance of the DSB -SS meeting of 28 
July 2017  and presented under the Chair's own responsibility . It is without prejudice to Members' 
final positions.  
2.68.   The text reflects elements discussed in recent focused work of the DSB -SS on Sequencing, 
on which, in the Chair's assessment, there is broad convergence among Members. During this recent 
period of work, there was broad support among Members for the view th at no suspension of 
concessions or other obligations should be authorized, unless there has been a prior WTO 
determination of non -compliance or there is another situation establishing that there is no 
disagreement between the parties on compliance. However , Members continue to hold divergent 
views on whether disagreements on compliance should be resolved exclusively by panels acting 
under Article 21.5 of the DSU and before the DSB may be requested to authorize the suspension of 
concessions or other obligati ons under Article 22.2 of the DSU.     
2.69.   In light of the broad convergence among Members in respect of some elements discussed in 
the context of Sequencing and a lack of convergence in respect of others, the text presented below 
reflects possible clarifications and improvements with regard to Art icles 21.5 and 22.7. These 
clarifications and improvements could be made independently of a possible amendment mandating 
recourse to Articles 21.5 in cases where there is disagreement as to the existence or WTO -
consistency of a measure taken to comply, bef ore recourse may be had to Article 22.2.  
2.70.   The text below on Articles 21.5 and 22.7 is largely based on relevant portions of the 
Sequencing working text of 2011, which reflects extensive work conducted among co -proponents 
and other interested delegations.  
2.71.   With regard to compliance proceedings under Article 21.5, the text contains possible 
incremental improvements that in some respects may also represent time -savings compared to 
current procedures under the DSU.  
• Consultations:  Draft Article 21.5(a) would pro vide that each party shall accord sympathetic 
consideration to a request from another party for consultations during the reasonable period 
of time (RPT), so as to give parties an opportunity to prevent a dispute over compliance from 
arising, without obliga ting a party to enter into consultations if so requested. Further, draft 
Article  21.5(c)(i) would clarify that after the expiry of the RPT and in situations where there 
is a dispute over compliance, formal consultations are not required before requesting t he 
establishment of a compliance panel.  
• Notification of measures taken to comply:  Draft Article 21.5(b) would improve transparency 
at the implementation stage of disputes by requiring a Member to notify the DSB once it 
considers that it has fully complied with DSB rulings and recommendations. The required 
notification would include a description of any measure considered to achieve compliance, the 
date of entry into force, and the text of the measure, if any. Members may wish to consider 
whether similar to draft Article 21.5(a) and Articles 3.6 (on mutually agreed solutions) and 
4.4 (on consultations) of the DSU, the text could also provide for notification to the relevant 
Councils and Committees.     
• Compliance panel establishment and composition:  Draft Art icle 21.5(c)(ii) would provide for 
mandatory establishment of compliance panels at the first DSB meeting at which the panel 
request is made. This draft provision would also provide for the possibility to replace a member 
of the original panel who is no lon ger available within an expedited time -frame compared to 
that provided for under current Article 8 of the DSU.  
• No additional RPT following a finding of non -compliance:  Draft Article 21.5(c)(iv) would clarify 
that a responding party is not entitled to an ad ditional RPT to comply, should the DSB rule 
that a measure taken to comply does not exist or is WTO -inconsistent.  TN/DS/31  
 
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  2.72.   Taking into account views expressed during recent focused work, and recalling the lack of 
convergence regarding a possible amendment mandatin g recourse to Article 21.5 for disagreements 
on compliance, the text below would ensure that both complaining parties and responding parties 
may initiate compliance proceedings. Further, the chapeau of draft Article  21.5(c) would clarify that 
DSU rules and  procedures, including those concerning appellate review, and relevant special or 
additional rules and procedures in Appendix 2 would apply in compliance proceedings, subject to 
any modification under draft Article 21.5(c).  
2.73.   With respect to Article 22.7, th e added text provides for greater transparency through a 
requirement to notify the DSB of any measure taken pursuant to the DSB's authorization to suspend 
concessions or other obligations, including any amendment or termination of the measure, within a 
specified deadline. Such measures are discriminatory and trade -restrictive by design. Members may 
wish to consider whether the text could also provide for notification to the relevant Councils and 
Committees.     
2.4.2   Comments from Members on the Chair's text  
2.74.   Memb ers that spoke noted that the Chair's text reflects the discussions during the focused 
work conducted on Sequencing and identified incremental progress that could be achievable and 
would enhance efficiency and transparency. One Member observed that it shar es the perception 
reflected in the Chair's text that there was no convergence regarding the component that would 
provide for mandatory sequencing. Another Member wished to underline, however, that there was 
convergence, except for one Member, towards relyi ng on compliance panels as the proper forum for 
compliance disputes. That Member noted more generally that the latest draft legal text on 
Sequencing  is a mature text that was the outcome of convergence among Members after  the result 
of many years of negoti ations.  Another Member indicated willingness to explore conceptual 
alternatives, such as allowing a single adjudicative body to carry out and achieve the desired 
sequencing. That Member indicated that this could be done by authorizing Article 21.5 panels t o rule 
first on compliance issues and then, in case of non -compliance, on the level of suspension to be 
authorized by the DSB.   
2.75.   Several Members stated that the component of the proposal which envisages a requirement 
for a multilateral decision on non -comp liance before the DSB authorizes the suspension of 
concessions or other obligations remains important and of systemic interest in view of the lack of 
clarity of the current DSU provisions. These Members also declared that they are open to discussing 
with o ther Members about how to proceed. Two proponents stated that the Chair's text contains 
elements that are certainly of value and could be agreed independently, but that in themselves they 
are not sufficient to reach an agreement on the issue of Sequencing.  In other words, there could be 
no agreement on "Sequencing" without a text stipulating a sequencing requirement. For that reason, 
one of those proponents suggested that the Chair could include Article 22.2 bis in his document. 
Following this suggestion, fo r greater clarity about the scope of the underlying proposal on 
Sequencing, the Chair included the proposals concerning Article 22.2 bis and 22.6 and the additional 
proposal concerning Article 22.7 in Annex 1 to this report . However, the additional componen ts of 
Sequencing included in Annex 1 do  not form part of the Chair's text on Sequencing.   
2.76.   Regarding the components of the proposal included in the Chair's text, which relate to Articles 
21.5 and 22.7, several Members indicated that they see value in these components, that they 
promoted good faith engagement between parties, and that the Chair's text reflects the existing 
convergence among Members. They considered that the text would achieve clarifications and 
improvements and, if accepted, would constitute incremental progress by achieving efficiencies and 
greater transparency. Several Members therefore indicated that they could support the proposed 
text. 
2.77.   Some Members offered more specific comments on the Chair's text. Regarding the proposed 
Article 21.5(a),  one Member stated that this proposal should be welcomed by all Members as it would 
serve to facilitate mutual understanding between the parties and facilitate solutions agreed between 
the parties.  
2.78.   Regarding the proposed Article 21.5(b), one Member questi oned inclusion of the word "fully" 
("considers that it has fully complied"). According to that Member, no explanation had been provided 
for why this is needed when the current DSU does not use that word. The Chair notes that this TN/DS/31  
 
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  comment had not been made during the preceding focused work on Sequencing. The Chair further 
notes that whereas Articles 21.1, 21.5 and 22.2 of the DSU do not use the word "fully" when referring 
to compliance with DSB recommendations or rulings, Article 22.1 refers to "full impleme ntation of a 
recommendation". To take account of this doubt and bearing in mind that the second sentence of 
Article 21.5(b) does not repeat the word "fully" when using the word "compliance", the Chair put 
the word "fully" between square brackets in the fir st sentence of Article 21.5(b) in his Chair's text 
to indicate a possible need for confirmation.  
2.79.   Also, regarding the proposed Article 21.5(b), one Member raised the question of whether it 
might be useful to require that a notification of compliance be subm itted not just to the DSB, but 
also other relevant WTO councils and committees. The proposed Article 21.5(a) in fact envisages a 
notification to the DSB and the relevant councils and committees.  
2.80.   Regarding the proposed Article 21.5(c)(i), one Member sugges ted that this clause not be 
included because, in its view, consultations are necessary. Regarding the proposed Article 
21.5(c)(ii), one Member signalled a preference that a panel be established only at the request of the 
complaining party, but it indicated  that it was still reflecting on this. One of the proponents likewise 
indicated concerns about allowing the responding party to initiate an Article 21.5 proceeding. In that 
Member's view, this would mean that the responding party could initiate new proceed ings every 
time it takes a new measure that in its view achieves compliance, which would present the risk of 
an endless loop of litigation. That Member considers that the complaining party is in a better position 
to define any remaining disagreement and th e matter to be referred to a compliance panel.  
2.4.3   Chair's text37 
Article 21 – Surveillance of Implementation of Recommendations and Ruling s 
… 
5. (a) After the midpoint of the reasonable period of time, or after the 
DSB meeting referred to in paragraph 3 where the Member concerned does not 
have a reasonable period of time pursuant to paragraph 3, each party shall, if 
requested by another party, accord sympathetic consideration to any request 
for consultations in good faith with a view to reaching a mutuall y satisfactory 
solution regarding the implementation of the recommendations and rulings of 
the DSB. The party requesting consultations shall notify its request to the DSB 
and the relevant Councils and Committees.  
(b) Where the Member concerned considers th at it has [fully] complied  with 
the recommendations and rulings of the DSB it shall so notify the DSB in 
writing without delay. The Member concerned shall include with the 
notification all relevant information including a description of any measure it 
cons iders achieves compliance, the date of entry into force of the measure, 
and its text, if any.  
(c) Where there is disagreement as to the existence or consistency with a covered 
agreement of any measure s taken to comply with the recommendations and rulings of 
the DSB,  such disagreement  dispute  shall be decided through recourse to these 
dispute settlement  procedures, including wherever possible resort to the original panel.  
the rules and  procedures of  this Understanding  and relevant special or 
additional rules and procedures identified in Appendix 2,  as modified by this 
sub-paragraph. 
_______________  
                                                
37 Chair Seck's proposed deletions of current DSU text are reflected in strikeout  and proposed new text 
is in bold.  TN/DS/31  
 
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   This is without prejudice to the right of a party to initiate new dispute 
settlement procedures under Articles 4, 5, 6 and 25 of this 
Understanding.  
(i) The procedures under this sub -paragraph do not require a party to 
request consultations under Article 4 b efore requesting the 
establishment of a panel.  
(ii) The DSB shall establish a panel upon request by any party at the 
first meeting at which the request is made, unless it decides by 
consensus not to do so. The same persons shall serve on this panel as 
served on the original panel. If any member of the original panel is not 
available, unless the parties agree otherwise, the Director -General shall 
appoint a replacement within 14 days after the date of establishment of 
the panel, after consulting with the par ties. 
(iii) The panel shall circulate its report within 90 days after the date of referral 
of the matter to it  its establishment . Whe nre the panel considers that it cannot 
provide  circulate  its report within this time frame  timeframe , it shall inform the 
DSB in writing of the reasons for the delay together with an estimate of the period 
within which it will submit  circulate  its report.  
(iv) Where the DSB rules that a measure taken to comply does not exist 
or is inconsistent with a covered agreement, the Mem ber concerned shall 
not have an additional reasonable period of time to comply with the 
recommendations and rulings of the DSB.  
Article 22 – Compensation and Suspension of Concessions  
… 
7. The arbitrator16 acting pursuant to paragraph 6 shall not examine the nature of 
the concessions or other obligations to be suspended but shall determine whether the 
level of such suspension is equivalent to the level of nullification or impairment. The 
arbitrator may also  determine if the proposed suspension of concessions or other 
obligations is allowed under the covered agreement. However, if the matter referred to 
arbitration includes a claim that the principles and procedures set forth in paragraph 3 
have not been foll owed, the arbitrator shall examine that claim. In the event the 
arbitrator determines that those principles and procedures have not been followed, the 
complaining party shall apply them consistent with paragraph 3. The parties shall accept 
the arbitrator's  decision as final and the parties concerned shall not seek a second 
arbitration. The DSB shall be informed promptly of the decision of the arbitrator and 
shall upon request, grant authorization to suspend concessions or other obligations 
where the request  is consistent with the decision of the arbitrator, unless the DSB 
decides by consensus to reject the request.  The authorized Member shall notify the 
DSB of any measure taken pursuant to the authorization granted by the DSB 
and any amendment or termination  of the measure. The Member shall submit 
the notification, including any relevant information, in writing no later than 28 
days after the date on which the measure, its amendment or termination takes 
effect.  
_______________  
16 The expression "arbitrator" s hall be interpreted as referring either to an 
individual or a group or to the members of the original panel when serving in the 
capacity of arbitrator.  
_______________  
  TN/DS/31  
 
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2.5  Post-retaliation  
2.5.1   Comment s from the Chair  on his statement on Post -retaliation   
2.81.   The Chair's  statement below on Post -retaliation  was circulated in advance  
of the DSB-SS meeting of  28 March 2018  and presented under the Chair's own responsibility . It is 
without prejudice to Members' final positions.  
2.82.   It has emerged from the recent focused wor k in the DSB -SS on Post -retaliation that there still 
is significant divergence between the two groups of proponents on Post -retaliation, two co-
proponents , on the one hand, and the G6 , on the other hand. In parallel, I have engaged directly 
with each group  to explore the possibility for "middle ground" convergence. This also did not narrow 
the gap. It is therefore not possible to put forward a single and unified Chair's text on Post -
retaliation.  
2.83.   In the light of this, I limit myself to recording some points  that were clarified by the 
proponents, or could be clarified, in respect of the two textual proposals, and the main concerns that 
were expressed about each proposal. In addition, I provide an overall picture of the work conducted 
from my perspective, high lighting where Members' views converge or diverge.  
2.5.2   Comments from Members on the Chair's statement  
2.84.   Members made general comments about both proposals at the meeting of 28 March 2018. 
The proponents indicated that the Chair's statement accurately reflected the discussions and that 
they remained open to continuing discussions on Post -retaliation. In response to their comments, I 
made minor editorial adjustments to my Statement, under points 1 and 3 of the points of 
convergence.  
2.85.   The two co-proponents  noted that the two proposals were mature draft legal texts. They also 
stated  that in addition to those reflected in the Chair's document , there were other  points of 
convergence between the two proposals . For instance , the idea of having some ki nd of notification  
of compliance,  as such , did not seem to be a concern for the G6 proponents, and all proponents 
appeared to agree that the complaining party had at least some role to play in defining the scope of 
the disagreement.  
2.86.   One G6 proponent state d that it agreed with the Chair's assessment that there was no 
convergence overall. Another G6 proponent considered the points of convergence identified by the 
Chair as the minimum level of convergence possible. That proponent also expressed the view that 
both the authorized Member and the responding Member should be allowed to initiate post -
retaliation compliance proceedings. An additional G6 proponent stated that, in the light of the 
differences in views, it would be premature to move to a single text on Post-retaliation. That Member 
also stated that it was not in favour of adding new points of convergence to the Chair's list. For 
example, while many Members shared the view that the responding Member should provide 
enhanced information at some stage, there  was no convergence between the proponents towards a 
notification requirement.  
2.87.   One other Member expressed a general preference for the  joint proposal by the two co-
proponents , but was open to continuing the discussions. Another Member noted that there wer e 
fundamental differences between the two proposals and that it had not been possible for the 
proponents to reach common ground. Against this background, that Member expressed doubts about 
the need to pursue specific regulation of post -retaliation. The Mem ber noted that the current DSU 
as interpreted in the Appellate Body's ruling in US/Canada – Continued Suspension , while not 
perfect, could adequately address the problem covered by the proposals.  
2.88.   In their comments, Members also addressed certain specific a spects of both proposals:  
• Notification of compliance:  One of the  two co-proponents of the  joint proposal noted that 
the notification requirement provides an opportunity for the authorized Member to assess 
whether compliance has taken place. In response, on e of the G6 proponents expressed TN/DS/31  
 
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  reservations about creating  a system in which the respond ing Member subjectively defines 
the adequacy of its compliance notification .  
 
• Withdrawal of the authorization to suspend concessions or other obligations:  According to  
the two co-proponents , their joint proposal would not necessarily invite more litigation. 
Litigation was not the default option under their proposal, as litigation would occur only if 
there is no agreement between the parties on c ompliance.  
 
• Initiati on of post-retaliation compliance proceedings:  One of the two co-proponents of the 
joint proposal stated that initiation of post -retaliation compliance proceedings after the 
deadline for requesting a panel is possible, with the agreemen t of the responding Member, 
but should not be encouraged. According to that proponent, the proposal provides ample 
opportunity for the complaining party to request establishment of a panel within the 
deadline. However, a G6 proponent responded that, whethe r the litigation started sooner or 
later, requiring the authorized Member to initiate litigation to avoid the withdrawal of the 
authorization to suspend concessions or other obligations would shift the burden of litigation 
back to the authorized Member and  was thus at odds with the principle of fairness.  
  
2.5.3   Chair's statement  
Members' review of the two proposals on post -retaliation  
Joint p roposal by the two co-proponents  
The two co-proponents indicated that an important consideration underlying their 
proposal  is that retaliatory measures are "abnormal" and should be temporary, and that 
there should therefore be an efficient and orderly process by which such measures are 
removed automatically if compliance was asserted by the Member concerned, unless 
certain st eps were taken. They emphasized, however, that under their proposal, if the 
Member concerned (original responding party)  does not meet its burden of explaining 
in detail its post -retaliation compliance measure, no automatic withdrawal would occur.  
The co-proponents clarified that the detailed notification, which under their proposal the 
Member concerned would need to submit to the DSB, would be substantially similar to 
the first written submission filed in panel proceedings, except that the notification wo uld 
not include any confidential information and would provide a list of supporting 
documents, but not any actual exhibits. According to the co-proponents, if the 
authorized Member considers that the notification submitted by the Member concerned 
is insuff icient and that the measure taken to comply is WTO -inconsistent, the authorized 
Member would include both matters in the request for establishment of an Article 21.5 
panel that it would file within the 60 -day deadline. The co-proponents also indicated 
that if the authorized Member does not request the establishment of a post -retaliation 
Article 21.5 panel within the 60 -day deadline, the DSB authorization to suspend 
concessions would be withdrawn. They observed that the authorized Member could, 
however, init iate compliance proceedings after the deadline had passed and seek a new 
authorization to suspend concessions in this way.  
The main concern raised by Members about this joint proposal is that the Member 
concerned might make a claim of compliance prematurel y, or as a litigation tactic, and 
that the authorized Member would then have to assume the burden of initiating further 
proceedings under Article 21.5 if it wished to prevent the automatic withdrawal of the 
DSB authorization. Another aspect that was questi oned is the 60 -day deadline for the 
authorized Member to request the establishment of a post -retaliation Article 21.5 panel. 
It was noted that this might be too short to assess whether the Member concerned had 
achieved compliance, particularly in the case of complex measures taken to comply.  
 
Proposal by the G6  
The proponents highlighted that it is difficult and costly, and takes a long time, for a 
complaining party to obtain the DSB's authorization to suspend concessions, with its TN/DS/31  
 
- 29 - 
 
  trade being adversely a ffected in the meantime. The proponents thus consider that the 
Member concerned should assume the burden of initiating further litigation at the post -
retaliation stage. They pointed out that this also provided an additional incentive for the 
Member concern ed to come into compliance promptly at the post -retaliation stage. The 
proponents noted that recent dispute settlement practice, including the proceedings in 
WT/DS381, WT/DS430 and WT/DS461, confirmed that it could be appropriate for the 
Member concerned t o initiate post-retaliation Article 21.5 proceedings .   
The proponents clarified that under their proposal further litigation at the post -
retaliation stage would not be necessary where the parties agree that the Member 
concerned had come into compliance. A s foreseen in their proposal, in that scenario one 
or all parties could request the DSB to withdraw the authorization to suspend 
concessions. The proponents further clarified that where the authorized Member did not 
submit a notice setting out any addition al measure taken to comply or additional WTO 
provision within the deadline specified for supplementing the terms of reference of a 
post-retaliation Article 21.5 panel, the authorized Member could still file its own, 
independent complaint under Article 21.5 .  
Other aspects that were discussed, but not definitively clarified, were whether the 
authorized Member's notice supplementing the terms of reference would be  subject to 
the same or a lower standard of clarity and specificity as the Article 21.5 panel req uest 
filed by the Member concerned, and what would be the legally relevant date(s) of 
establishment of the post -retaliation Article 21.5 panel (since the panel would be 
established before the authorized Member would submit any notice setting out 
additional  measures or WTO provisions that would fall within the terms of reference). 
Another aspect that was not fully clarified is w hether under this proposal recourse to 
Article 22.6 arbitration is always required  where a party to post -retaliation Article 21.5 
proceedings requests that the DSB modify its authorization to suspend concessions , or 
whether such recourse is necessary only where a party disagrees with a modification 
previously proposed by the other party  (Article 22.8(c)(ii) of the proposal).  
One concern raised by  some  Members about this proposal is that in their view the 
authorized Member is better placed to determine the scope of any post -retaliation 
compliance dispute. As they see it, only the authorized Member knows what aspect of 
a post -retaliation compliance measu re is problematic for it.  Another point that was 
raised relates to the absence of a specific time -frame within which the authorized 
Member would be expected to indicate its agreement or disagreement as to the 
existence or consistency of a post -retaliation measure taken to comply.  
Relationship with Article 12.12 of the DSU  
WTO dispute settlement practice suggests that Article 21.5 panel proceedings can be 
suspended pursuant to Article 12.12 of the DSU.38 A question from the Chair about the 
relationship of the  proposals with Article 12.12 indicated that further clarification and 
consideration could be useful. As Article 12.12 provides for the possibility of suspension 
at the request of the complaining party, under the proposal by the G6 the issue arises 
as to w hich party is the complaining party and whether both the Member concerned and 
the authorized Member could be considered as complaining parties where the latter had 
submitted a notice. Under the  joint proposal by the two co -proponents , the possibility 
of the authorized Member requesting a suspension of post -retaliation Article 21.5 
proceedings could work to counteract any risk of premature claims of compliance by the 
Member concerned. It was mentioned, however, that the authorized Member might 
request a susp ension even where the Member concerned had come into compliance, 
thereby unjustifiably delaying the withdrawal of the DSB authorization to suspend 
concessions.       
Overall picture  
                                                
38 See e .g. Panel Report, US – Stainless Steel (Mexico)  (Article 21.5 – Mexico)  (WT/DS344/RW), para. 
1.8. See also the sequencing agreements in e.g. documents WT/DS381/19, WT/DS384/25, WT/DS371/16 , and 
WT/DS397/16 . TN/DS/31  
 
- 30 - 
 
  Points in respect  of which there appears to be convergence among Members  
Based on the views expressed by Members during the focused work on Post -retaliation, 
there appears to be convergence towards the following conceptual points, with square 
brackets reflecting the differences in approach under the  two textual proposals:  
1. It is useful to provide for an explicit mechanism for withdrawing the 
authorization to suspend concessions by the DSB in situations where the 
Member concerned (original responding party) has substantively  complied with 
the DSB recommendations and rulings.  
2. The Me mber concerned must make known [to the authorized Member (original 
complaining party) ]/[the DSB ] its claim that it has complied with the DSB 
recommendations and rulings. In at least some situations, the Member 
concerned may have to provide a factual and le gal explanation, in writing, of 
how its measure taken to comply brings it into compliance with the DSB 
recommendations and rulings.  
3. The authorized Member must have the possibility to [determine ]/[supplement ] 
the scope of the disagreement  [by initiating post -retaliation Article 21.5 
proceedings ]/[by adding measures and claims in response to the establishment 
of a post-retaliation  Article 21.5  panel at the request of  the Member concerned ]. 
4. A DSB decision is needed to withdraw or modify the DSB's  authorization to 
suspend concessions.  
5. The DSB authorization to suspend concessions remains in effect during any 
post-retaliation Article 21.5 proceedings, until the DSB withdraws or modifies 
its authorization.  
6. Where the DSB rules, following post -retaliati on Article 21.5 proceedings, that 
the Member concerned has complied with the DSB recommendations and 
rulings, the DSB must, upon request, withdraw its authorization to suspend 
concessions, unless it decides by consensus not to do so.  
7. Where the DSB rules, f ollowing post -retaliation Article 21.5 proceedings, that 
the Member concerned has not complied , fully or partially,  with the DSB 
recommendations and rulings, any party to the Article 21.5 proceedings may 
request that the DSB modify its authorization to sus pend concessions. The DSB 
may modify its authorization only if the request is consistent with the decision 
of an Article 22.6 arbitrator (where the matter has been referred to arbitration). 
Depending on the request and arbitrator decision, the DSB may eith er increase 
or lower the level of suspension, unless the DSB decides by consensus not to 
do so.  
Points in respect of which Members have expressed divergent preferences  
Notwithstanding the points listed above, Members have expressed divergent 
preferences re garding:  
1. whether there should be a requirement that the Member concerned formally 
notify  the DSB that it has complied with the DSB recommendations and rulings ; 
2. which party should initiate any post -retaliation Article 21.5 panel proceedings – 
the authorized  Member (on the grounds that retaliation is an "abnormal" state 
of affairs and meant to be temporary, and that the authorized Member is better 
placed to determine the scope of the dispute) or the Member concerned (on the 
grounds that the right to retaliate  is obtained following lengthy legal 
proceedings and that the Member concerned should not be enabled to impose 
on the authorized Member the burden of initiating further legal proceedings, 
notably if its claim of compliance is not well -founded) ; and  TN/DS/31  
 
- 31 - 
 
  3. whether  following a claim of compliance by the Member concerned (through a 
formal notific ation or otherwise) and upon request, the DSB should withdraw its 
authorization to suspend concessions, unless the authorized Member requests 
the establishment of a post -retaliation Article 21.5 panel within a defined time -
period . 
_______________  
 
  TN/DS/31  
 
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  2.6  Transparency and amicus curiae  briefs 
2.6.1   Comments from the Chair on his text on Transparency and amicus curiae  briefs  
2.89.   The Chair's text below  on Transparency and amicus curiae briefs was circulated in advance of 
the DSB -SS meeting of 30 May 2018  and presented under the Chair's own responsibility . It is without 
prejudice to Members' final positions.  
2.90.   The Chair's text takes into account the views of Members expressed during the focu sed work 
of the DSB -SS on Transparency and amicus curiae briefs, including clarifications by the proponents 
of certain elements of the proposals. As Members continue to hold opposite views on this issue, 
including at the conceptual level, it is not possibl e to identify a text on transparency that reflects 
broad convergence or a consolidated text on amicus curiae  briefs. Nevertheless, the Chair's text 
contains possible incremental improvements, that, in the Chair's assessment, further clarify the 
proposals a nd could serve as a basis for further discussions.  
Transparency  
 
2.91.   The transparency  proposal , which takes the form of proposed amendments to Article 18 and 
Appendix 3 of the DSU and a proposed DSB decision, consists of three components: (i) open WTO 
panel, Appellate Body and arbitrator meetings, (ii) public access to most documents provided by 
parties and third parties to WTO adjudicators, and (iii)  Member and public access to final panel 
reports in their original language already upon their issuance to the parties, rather than only upon 
completion of their translation.  
2.92.   The proposal suggests systematically opening WTO panel, Appellate Body and arbitrator 
meetings to public observation, without there being a need for a decision by the WTO adjudicator. 
This wou ld include the third -party session of panel meetings. The proposal also provides that public 
observation need not be through physical presence at the meeting or simultaneous viewing. In 
addition, the transparency proposal also foresees public access to mos t documents submitted by the 
parties and third parties. In this regard, some Members indicated a preference for such access to 
extend to basically any type of document submitted, including the evidence, rather than only the 
written submissions by the parti es and third parties.  
2.93.   There was general agreement that any increase in transparency of proceedings with regard 
to these two components would need be accompanied by safeguards to protect sensitive information, 
in particular business -confidential informatio n. While several Members supported these two 
components of the transparency proposal, others expressed a preference for incremental solutions 
that would not entail systematically opening WTO dispute settlement proceedings to the public. 
Several Members gen erally opposed the idea of increasing transparency of WTO dispute settlement 
proceedings. These Members highlighted the intergovernmental nature of WTO disputes. Some 
developing country Members expressed concerns about the additional strain that enhanced 
transparency of proceedings could put on their resources owing to the need to handle greater media 
attention as well as the potential risk of misrepresentation of the proceedings by the media.  
2.94.   With respect to making final panel reports publicly accessible in their original language already 
when they are issued to the parties, there was convergence among Members that this could be 
useful, including because of the sometimes substantial amount of time required to translate reports 
into the other two official W TO languages. The proposal would ensure that prompt public access to 
the original language version of a final panel report would not affect the DSU deadlines for adoption 
of panel reports or appeals, which would still be triggered by the date on which pane l reports are 
circulated in all three official WTO languages. There was broad support for the idea that if this 
proposal were adopted, there should be a procedure (i) to allow for the redaction of confidential 
information in the report issued to parties pr ior to disclosing its content to the public and (ii) to allow 
for the correction of any errors detected during the translation process. Members also discussed the 
idea of the relevant panel issuing a communication to Members in all three official WTO langu ages 
to inform them about the prompt public access to the panel report in its original language.  In an 
annex to my Chair's text,  in section  2.6.4 below , I have included additional material used by the 
DSB-SS during its focused work  on this component  of the transparency proposal .  TN/DS/31  
 
- 33 - 
 
  Amicus curiae  briefs  
 
2.95.   Regarding  amicus curiae  briefs , Members' views are reflected in two contrasting proposals, 
which take the form of proposed amendments to Articles 13 and 17 of the DSU and a proposed DSB 
decision. The proposed DSB decision provides for standard procedures for use by WTO adjudicators 
that would reg ulate the filing of amicus curiae  briefs. The other proposal precludes WTO adjudicators 
from accepting unsolicited amicus  curiae  briefs. The arguments that some Members presented 
against permitting and regulating the filing of amicus curiae  briefs relate m ainly to the 
intergovernmental nature of WTO disputes and resource constraints facing developing country 
Members. The argument about resource constraints arises because of a concern by developing 
country parties that they might need to respond not only to the views presented by the other party 
and third parties, but also to those presented by amici curiae . In view of the continuing divergence 
among Members, I identified for discussion purposes and under my own responsibility a potential 
compromise solution.  Under that compromise solution, acceptance and consideration of amicus 
curiae  briefs by a WTO adjudicator would be permitted only if the parties to a dispute agree that the 
WTO adjudicator may, in principle, accept and consider such briefs in the context of the relevant 
WTO proceeding. Where the parties agree that the WTO adjudicator may, in principle, accept and 
consider such briefs in the context of the relevant WTO proceeding, the WTO adjudicator would be 
required to apply the proposed Procedures for Amicus Curiae  Submissions in Disputes (the proposed 
DSB decision). While some Members saw this as a possible basis for further discussion, others raised 
concerns about conditioning a WTO adjudicator's decision to accept or reject an amicus curiae  brief 
upon the parties' consent. As a result, the Chair's text on amicus curiae briefs mainly reflects certain 
clarifying modifications, such as making clear that Members might also choose to submit such briefs.  
2.6.2   Comments from Members on the Chair's text  
2.96.   Regarding the transparency proposal, several Members continued to harbour concerns about 
greater transparency and possible repercussions on the intergovernmental nature of the WTO. Those 
Members submitted that increased transparency may not facilitate the dispute settlement process 
and constitute an additional burden on developing country Members. They noted that there already 
is a good deal of transparency compared to WTO decision -making more generally. One of those 
Members stated that the priority in disp ute settlement is to achieve a positive solution to dispute 
between Members and not to enhance public support for the WTO. That Member also considered it 
important to avoid additional political pressure from outside.  
2.97.   The proponent, supported by several ot her Members, considered that transparency would 
further enhance the legitimacy of the WTO. It noted that the lack of transparency in WTO dispute 
settlement contrasts with other international adjudicative fora and unhelpfully gives the impression 
that the W TO has something to hide. The proponent further suggested that it remains unclear which 
disputes would really be sensitive. It noted that the record of standard trade remedy disputes is 
usually either publicly available or available to the parties to a WTO  dispute.  
2.98.   Several Members made comments on the various components of the transparency proposals. 
Regarding open meetings, one Member expressed the view that any opening of  dispute settlement  
meetings should be gradual and should protect confidential inform ation. According to that Member, 
what is missing is a standard procedure to be used in cases where the parties agree to open 
meetings. Another Member said that the current DSU rules should be maintained, as in that 
Member's view it would not be appropriate  to open all meetings. Regarding public access to 
documents provided by parties and third parties, one Member wondered whether it would be 
appropriate to limit the intended exception to "strictly" confidential information and whether 
Members should not be allowed to redact also other confidential information. The proponent likewise 
indicated that it does not endorse the references to "strictly" confidential information, which had 
been inserted by a previous Chair of the DSB -SS. Another Member stated that th e current DSU rules 
should be maintained, as it would not be appropriate to give access to all documents. Regarding the 
proposal to give  Members and the public access to final panel reports in their original language 
already upon their issuance to the part ies, the proponent noted that there had been positive 
movement on this component during the focused work conducted. Another Member agreed, noting 
that this component was the closest that Members had come to reaching an agreement during the 
focused work. On e Member indicated that it is still evaluating this proposal and recorded its 
understanding that the reason behind the proposal are the delays resulting from the need to 
translate panel reports. In that Member's view, if this component were considered for adoption, it 
would be important to ensure, as already foreseen in the proposal, that the deadlines for adoption TN/DS/31  
 
- 34 - 
 
  of or appeal against panel reports would start running only from the date of circulation of panel 
reports.  
2.99.   Regarding the proposals concerning amicus curiae  briefs, several Members reiterated their 
reservations about the idea of regulating them. One Member noted that the WTO provides for rights 
and obligations of Members and not entities other than Members, and that it would therefore need 
to be s pecified clearly what conduct was expected of amici curiae . Another Member observed that 
non-governmental organizations can provide input at the national level as and when a country 
formulates its positions and that amicus curiae  briefs should therefore be  allowed only in disputes 
where both parties agree to this. That Member also asked what accepting amicus curiae  briefs would 
mean for the other parts of the WTO's work and whether this would mean that non -governmental 
organizations could also participate i n WTO negotiations and committee work. One Member indicated 
that it would prefer not to go backwards on amicus curiae  briefs by making their use subject to the 
parties' agreement. The proponent similarly indicated that it would have concerns about a single  
party being able to veto acceptance of amicus curiae  briefs.     
2.6.3   Chair's text39 
Article  13 
Right to Seek Information  
3. [In exercising the right to seek information and technical advice, the 
panel shall not accept or consider information or technical advice  provided by 
any [ Member, ] individual or body from whom the panel has not sought it.]  
… 
Article  17 
Appellate Review  
Standing Appellate Body  
 
4.(a) ... 
… 
[(e) The Appellate Body shall consider only the submissions of parties and 
third [ participants] , and shall not accept or consider any submission beyond 
those submitted by the parties and the third [ participants] .] 
Article  18 
Communications with the Panel or Appellate Body  
1. There shall be no ex parte  communications with the panel , or Appellate Body , or 
arbitratorc, concerning matters under consideration by the panel , or Appellate Body , 
or arbitrator . 
_______________  
c For [ the] purposes of  this Article, the expression "arbitrator" means any 
arbitrator  under paragraph 3(c) of Article  21, Article  22, or Article  25.   
                                                
39 Chair Seck 's proposed modifications appear in grey shading and italics, or in the case  of proposed 
deletions, just in grey shading . Other proposed changes are  explained  in Annex 1, section 6.1. TN/DS/31  
 
- 35 - 
 
  2. [ [Any documentd]/[The written submissions ] that a Member provides to 
a panel, the Appellate Body, or an arbitrator [( other than any submission made 
subsequent to the issuance of the inte rim report to the parties )] shall be 
public[ ,] except for information designated as strictly  confidential information 
[in accordance with the procedures referred to in paragraph 3 ].  Written 
submissions to the panel or the Appellate Body shall be treated as confidential, but shall 
be made available to the parties to the dispute. ]   
_______________  
[d For [ the] purposes of this paragraph,  the term "document" does not include 
a document concerning an interim report or that is purely administrative in  
nature.]  
Nothing in this Understanding shall preclude s a Member  party to a dispute  from 
disclosing statements of its own positions to the public. [ Members shall treat as 
confidential information submitted by another Member to the panel or the Appellate 
Body which that Member has designated as confidential.   [A Member shall not 
disclose information designated by another Member as strictly confidential 
information in accordance with the procedures referred to in paragraph 3 .]  
A party [or third party]  to a dispute shall also, upon request of a Member, provide a 
non-confidential summary of the information contained in  its written submissions that 
could be disclosed to the public.  [A Member submitting strictly confidential 
information in accordance with the p rocedures referred to in paragraph 3  shall 
provide a non -confidential summary of the information within 15  days [ after 
a] request [ by] another Member].  
3. [Where a party designates any information submitted to the panel or the 
Appellate Body as "strictly confidential information", such information shall be 
treated in accordance with the procedures set out in Appendix 5[ , unless the 
panel or the Appellate Body decides otherwise after consulting the parties to 
the dispute ].  These procedures also a pply mutatis mutandis  to strictly 
confidential information submitted in the course of arbitrations pursuant to 
this Understanding  or in the course of procedures under Annex V of the 
Agreement on Subsidies and Countervailing Measures. ]   
[Each substantive m eeting with the parties of a panel [ (including each third 
party session held by a panel) ], the Appellate Body, or an arbitrator, and each 
meeting of a panel or arbitrator with an expert, shall be open for the public to 
observe g, except for any portion dea ling with strictly confidential information 
[submitted in accordance with the procedures referred to in paragraph 3. ] ] 
_______________  
g The expression "observe" does not require physical presence in the meeting 
[or simultaneous viewing ]. 
 
APPENDIX 3  
WORKING PROCEDURES  
... 
[2. The panel shall meet in closed session.  The parties to the dispute, and interested 
parties, shall be present at the meetings only when invited by the panel to appear before 
it.] TN/DS/31  
 
- 36 - 
 
  [3. The deliberations of the panel [and the documents submitted written 
submissions  to it] shall be kept confidential. Nothing in this Understanding shall 
preclude a party to a dispute from disclosing statements of its own positions to the 
public. [Where a par ty to a dispute submits a confidential version of its written 
submissions to the panel, it shall also, upon request of a Member, provide a non -
confidential summary of the information contained it its submissions that could be 
disclosed to the public .] [Members shall treat as confidential information submitted by 
another Member to the panel or the Appellate Body which that Member has designated 
as confidential . ] ] 
… 
Proposed DSB decision on the protection of strictly confidential information  
The Dispute Set tlement Body directs the Secretariat to maintain the 
documents referenced in paragraph 2 of Article  18 in a central location and to 
make these documents available to the public [ via the WTO website ], except 
for [ strictly ] confidential information [ designat ed as such by a Member in 
accordance with the procedures referred to in paragraph 3 of Article  18]. 
A final report issued by a panel to the parties is an unrestricted document, 
except for any [strictly ] confidential information, as defined in [ paragraph 3 
of] Article  18.  Any interim report considered final by operation of the last 
sentence of paragraph 2 of Article  15 is unrestricted when considered final 
[,except for any [strictly] confidential information ]. 
This decision is without prejudice to the practice concerning the date of 
circulation of the report.q] 
_______________  
q That practice was established on a trial basis and under that practice a 
document is deemed to be circulated on the "date printed on the WTO 
document to be circulated with the a ssurance of the Secretariat that the date 
printed on the document was the date on which this document was effectively 
put in the pigeon holes of delegations in all three working languages."  
(WT/DSB/M/2).  
 
 
Proposed DSB decision on procedures for amicus cu riae submissions in disputes 
(based  on JOB/DS/14)  
 
PROPOSED  TEXT40 SOURCE  
1. Any [person, whether ] natural or legal 
[person]  ("person"), [ including a Member ] other 
than a party to the dispute or a third party, wishing 
to file an amicus curiae submission ("submission") 
with a panel, the Appellate Body, or an arbitrator 
("adjudicative body") must apply in writing for 
leave to file such a submission by the deadline 
established by the adjudicative body. The 
adjudicative body should establish a dea dline that 
(1) falls when the basic arguments of the parties to 
the dispute and third parties are known, (2) avoids Non-
paper of 
23 June 
2011  
                                                
40 This text incorporates proposed modifications by Chair Seck based on the discussions among 
Members. Those modifications appear in grey shading. Pl ease note that errors corrected by Chair Seck did not 
appear in the original non -paper.  TN/DS/31  
 
- 37 - 
 
  PROPOSED  TEXT40 SOURCE  
undue burden on a party to the dispute, and (3) does 
not delay [ the proceedings ]. The Secretariat will 
post on the WTO  website the deadline and a 
description of where the documents relating to the 
dispute are to be found.  
_______________  
 Applying in writing would include transmission by 
electronic means.  
2. The person applying for the leave to file such 
a submission ("applicant") shall:  
(a) date and sign the application and include the 
address and other contact details of the applicant;  
(b) limit the application to not longer than three 
[typed ] pages;  
(c) include a description of the applicant, 
including a statement of the membership and leg al 
status of the applicant, the general objectives 
pursued by the applicant, the nature of the activities 
of the applicant, and the sources of financing of the 
applicant;  
(d) specify the nature of the interest [ that] the 
applicant has in the dispute;  
(e) identify the specific issues in the dispute that 
the applicant intends to address in its submission;  
(f) explain why it would be desirable, in the 
interests of achieving a resolution of the matter at 
issue[ ,] in accordance with the rights and 
obligations of  WTO Members under the DSU and the 
other covered agreements, for the adjudicative body 
to grant the applicant leave to file a submission, and 
indicate, in  particular, in what way the applicant will 
make a contribution to the resolution of the dispute 
that is not likely to be repetitive of what a party to 
the dispute or a third party submits;  and  
(g) disclose whether the applicant has any 
relationship, direct or indirect, with any party to the 
dispute or any third party, as well as whether it has 
[received ,] or will[ ,] receive any assistance, 
financial or otherwise, from [ a] party to the dispute, 
a third party, or any other person in the preparation 
of its application or its submission.  
_______________  
 A signature could be electronic.  
3. The adjudicative body will give each party to 
the dispute an adequate opportunity to comment on 
any application filed.  
 TN/DS/31  
 
- 38 - 
 
  PROPOSED  TEXT40 SOURCE  
4. The adjudicative body will review and consider 
each application and will, without delay, render a 
decision whether to grant or deny leave to file in 
whole or in part. The adjudicative body will promptly 
notify the applicant and each party to the dispute 
and each third party of its decision with respect to 
an application. Where the adjudicative body has 
granted leave to file in part, [ then] the adjudicative 
body will include in the notification the issues in the 
dispute for which it grants the applicant leave to file 
a submission.  
5. The grant of leave to fil e a submission by the 
adjudicative body does not imply that the 
adjudicative body will address, in its report, 
the arguments made in the submission.  
6. An applicant granted leave to file a submission 
must:  
(a) file any submission in writing, and ser[ v]e a 
copy of the submission on each party to the dispute 
and each third party, by a deadline established by 
the adjudicative body;  
(b) date and sign the submission;  
(c) be concise and limit the submission to no 
longer than the number of pages to be established 
by the adjudicative body (as  a general guideline, the 
limit should normally be no more than 15 typed 
pages, including [ any] appendices);  and  
(d) limit the submission to those issues in the 
dispute for which the adjudicative body granted the 
applicant leav e to file a submission.  
 
7. The adjudicative body will give each party to 
the dispute an adequate opportunity to comment on 
any submission filed by an applicant.  
  
 
 
2.6.4   Annex to the Chair's text on the proposed early derestriction of final panel reports  
2.100.   As indicated in the Chair's text, the DSB -SS during its focused work reviewed in some detail 
the practical aspects of the propos ed DSB decision providing for  early derestriction of final panel 
reports in their original language. In response to comments  and to facilitate discussions , I circulated  
to participants  a brief summary  of the practical benefits that early derestriction could afford Members 
and a step-by-step overview of how  the proposal for  early derestriction would operate in practice , 
especially in a case where strictly confidential information is at issue . I include these two 
contributions  in this annex to my Chair's text.   
2.101.   The proposal for early der estriction of final panel reports would impose no new obligations 
on Members . It would , however, provide benefits that Members do not currently enjoy . Specifically, 
prompter access to final panel reports in their original language  (English, French or Spani sh, as the 
case may be) could be of interest to:   TN/DS/31  
 
- 39 - 
 
  • parties to the dispute wishing to  promptly  inform members of their public of the outcome  
of the panel proceedings ; 
• third parties to the dispute participating in a possible appeal of the panel report;  
• parties and third parties to other panel or Appellate Body proceedings in which similar 
issues arise;  
• other panels and the Appellate Body in disputes in which similar is sues arise; and  
• other Members following disputes or engaging in dispute settlement activities, such as 
preparing requests for consultations or the establishment of panels.  
2.102.    Regarding how the proposal for early derestriction of final panel reports would wor k in 
practice, the table below illustrates  how the proposal could be implemented, step by step, in WTO 
panel proceedings with additional working procedures for the protection of strictly confidential 
information .  
 Sequence of steps  Explanation  of each step  
1. Issuance of interim  panel  report to 
parties  The panel issues  the confidential interim panel 
report to parties . 
2. Interim review, including parties' 
requests for redaction  of strictly 
confidential information  Parties in their comments on the interim  panel  
report may request redaction of strictly 
confidential information that cannot appear in the 
public version of the final panel report . 
3. Issuance of final original language 
panel report to parties  
(Where no party makes any co mments 
on the interim report, the interim 
report is considered as the final original 
language  panel  report; see Article 15.2 
of the DSU.)  The p anel issues the confidential final panel 
report to parties . 
4. Supplementary parties' requests for 
redaction of the final original language 
panel report, as necessary  Parties would be given an opportunity to (i) 
review the changes made by the panel in its final 
report, as identified in the interim review section 
of the panel report, and (ii) request redaction of 
any new references to strictly confidential 
information that cannot appear in the public 
version of the final report . 
5. Making available to Members , via the 
WTO website,  an advance copy of the 
public version of the final original 
language panel report, with redactions 
as appropriate  The pa nel makes further redactions, if 
appropriate, and  requests the WTO Secretariat to 
make available  on the WTO website  the 
(redacted) publ ic version of the final panel report 
to Members in the original language of the panel 
report as an advance copy  (indicated as such) . 
The panel could at the same time  circulate  a 
communication in all three official languages  in 
the WT/DS series  to inform th e DSB of the 
circulation of its report in the original language.  
Such a communication could possibly also 
provide a tabular summary of the panel's 
conclusions  in all three official languages . 
6. Translation  The WTO Secretariat undertakes and completes 
the translation of the public version of the final 
panel report into the other two official WTO 
languages . 
7. Circulation to Members of the 
(redacted  and possibly corrected ) 
public version of the final panel report 
in the three official WTO languages  The WTO Secretariat circulates to Members the  
(redacted)  public version of the final panel report 
in the three official WTO languages .  
The translation process may result in 
typographical errors being spotted in the original 
language panel report . If the original language 
version is initially circulated as an advance copy, 
the original language version that would  replace 
the advance copy version  when the panel report TN/DS/31  
 
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   Sequence of steps  Explanation  of each step  
is circulated to Members in the three official 
languages  could incorporate all necessary  
corrections .  
 
8. Date of circulation of the panel report  The DSU deadline for appeal or adoption of a 
panel report (Article 16.4 of the DSU) starts to 
run from the date on which the panel report is 
circulated to Members in the three official WTO 
languages . 
 
_______________  
 
  TN/DS/31  
 
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  2.7  Timeframes  
2.7.1   Comments from the C hair on hi s text on Timeframes   
2.103.   The Chair's  text below  on Timeframes  was circulated in advance of the  
DSB-SS meeting of  12 July 2018  and presented under the Chair's own responsibility . It is without 
prejudice to Members' final positions.  
2.104.   The Chair's text takes into account the views of Members expressed during the focused work 
conducted by the DSB -SS on Timeframes. The proposals on Timefra mes cover five main 
components: (i) the length and start of consultations, (ii) establishment of panels at the first DSB 
meeting, (iii) rebalancing of and other adjustments to standard indicative panel timetables, 
(iv) prompter adoption of panel reports, a nd (v) accelerated timeframes for disputes on safeguard 
measures.  
2.105.   The DSB -SS' recent focused work has shown that there is insufficient convergence among 
Members regarding this issue. I am therefore unable to put forward a text that identifies a common 
baseline for further work regarding any of the five components of this issue.  
2.106.   Nonetheless, there was broad conceptual support among Members for key aspects of two 
components – establishment of panels at the first DSB meeting and rebalancing of standard 
indica tive timeframes for the filing of the parties' first written submissions.  
2.107.   The first such instance of conceptual convergence concerns the proposal that the DSB 
establish panels at the first DSB meeting at which the request appears as an item on the DSB's 
agenda. One Member considered it important, however, to include a mechanism for the 
postponement of panel establishment upon request. That Member explained that such a mechanism 
was important for developing country Members because they needed to have suffic ient time, once 
it became clear that a panel would be established, to hire outside legal advisors, where appropriate, 
to assist them in the panel proceedings.  
2.108.   The second instance of conceptual convergence concerns the proposal that would rebalance 
the stan dard indicative timeframes for the filing of the parties' first written submissions in a manner 
that would grant the respondent more time than is currently contemplated in Appendix 3 of the DSU. 
Some differences remain among Members, however. They relate m ainly to the precise time -period 
to be granted each party for the filing of its first written submission.  
2.109.   The two aspects on which there was broad support should not be viewed in isolation. 
Although under the second proposed component a panel could be esta blished already at the first 
DSB meeting, the respondent would be granted additional time under the third proposed component 
to prepare its first written submission.    
2.110.   Owing to the lack of sufficient convergence, in the Chair's text below, I limited mysel f to 
identifying possible incremental changes to the text of the proposals beyond those already reflected 
in document TN/DS/25. These possible changes serve to clarify the proposals and respond to 
concerns raised by Members during the focused work.  
2.111.   The fo llowing observations are provided to introduce the changes identified in the Chair's 
text:  
• Length and start of consultations: As regards the length of the consultations period, the 
Chair's text concerning draft Article 4.7 clarifies that any request to ex tend the consultations 
period would need to be made by a "responding" developing country Member. It indicates 
the maximum extension that a responding developing country Member could request, and 
clarifies that the extension would correspond to the number o f days requested, provided 
that this number does not exceed the maximum. Similar changes have been included in the 
third sentence of draft Article 12.10. The text concerning draft Article 12.10 also clarifies 
that an extension of the consultations period w ould need to be granted regardless of whether 
the complaining party  is a developed country Member or a developing country Member. The 
second and third sentences of draft Article 12.10 further clarify that just like  the 
consultations period must be  extended  upon request, so also the time-period within which  TN/DS/31  
 
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  consultations are to be started must be extended upon request by the responding developing 
country Member.    
 
• Establishing panels at first request: The Chair's text concerning draft Article 6.1 dispenses  
with the word "first", as there would no longer be a need to distinguish between a first and 
subsequent request for establishment. If and when a request for establishment appears on 
the DSB's agenda, the DSB would be required to establish a panel immediat ely.  As regards 
draft footnote a, which is about the possible postponement of panel establishment, the 
Chair's text now contemplates that both developed and developing country Members would 
have the possibility to request the complaining party  to postpone  panel establishment. This 
avoids the need for characterizing Members as either developed or developing to determine 
eligibility to make a request for postponement. During the focused work, the view was 
expressed that where the complaining party  agrees to a request for postponement, it should 
withdraw the request for establishment from the DSB's agenda. Consequently, if the 
complaining party  later proceeds to seek establishment of a panel, the DSB would be dealing 
with the request for the first t ime at such later date. Bearing this in mind, the Chair's text 
also makes consequential adjustments to footnote 5 to draft Article 6.1.  
 
• Rebalancing and other adjustments of standard indicative panel timetables: The Chair's text 
concerning paragraph 12 of  Appendix 3 of the DSU creates a new timetable item for the 
organizational meeting, to provide a starting date for the panel proceedings for purposes of 
calculating due dates. During the focused work, it was clarified that the date of the 
organizational me eting had been chosen deliberately following prior discussions among 
Members, and notwithstanding Article 12.8 of the DSU (which refers to the date of panel 
composition as the starting date for calculating the maximum period in which panels must, 
as a gene ral rule, conduct their examination). Annex 2 to the Chair's text reflects, for 
illustrative purposes, (i) the standard panel timetable applicable in disputes involving 
developed country respondents under draft paragraph 12 of Appendix 3 and (ii) the stand ard 
timetable applicable, in general, in disputes involving developing country respondents under 
the penultimate sentence of draft Article 12.10. The Chair's text concerning draft Article 
12.10 modifies the last sentence in response to a comment from a Mem ber that any 
additional time granted by way of special and differential treatment should not result in less 
time being available for panels to complete their internal work.  
 
• Prompter adoption of panel reports: The Chair's text concerning draft Article 16 reinserts 
the provisions contained in paragraphs 2 and 3 of the current Article 16, as some Members 
were concerned about dispensing with the rights and obligations they contain. As Article 16 
is entitled "Adoption of Panel Reports" and paragraphs 2 and 3 d o not use the term 
"adoption", the Chair's text in the interest of greater clarity reinserts these two paragraphs 
at the end of draft Article 16, after the new opening paragraph, which, for its part, does use 
the term "adoption". Regarding the new paragrap h 2 of draft Article 16, the Chair's text also 
indicates a need to specify a new deadline for circulating written objections to the adoption 
of a panel report. The current 10 -day minimum deadline could in some circumstances be 
unworkable (e.g. where circul ation of a report and the request for adoption occur 
immediately before the expiry of the 10 -day notice period for including items on the DSB 
agenda). It should be noted in this respect that this issue would not arise if Members were 
to adopt the proposal that is part of the Transparency issue and that would require early 
derestriction of final panel reports. Under that proposal, a final panel report would be 
available to all Members when it is issued to the parties, which is well before the circulation 
of the same panel report to Members.  
 
• Accelerated timeframes for disputes on safeguard measures: The Chair's text concerning 
draft Article 20 bis adds a reference to paragraph 4 in the opening paragraph to clarify the 
relationship between the two paragraphs. T he Chair's text further explains that the second 
paragraph would be unnecessary if Articles 4.7 and 6.1 were amended as envisaged in the 
Timeframe proposals. The Chair's text also spells out more clearly in the second paragraph 
of draft Article 20 bis what is meant by "immediate" panel establishment by referencing 
language used in the current Article 6.1 of the DSU. To ensure consistency with the current 
Article 6.1, the second paragraph also identifies only the complaining party  as the Member 
that would be able to request the establishment of a panel. Regarding the third paragraph 
of draft Article 20 bis, the Chair's text reflects more clearly the intention of the proponent 
that panels would be required to halve the standard indicative timeframes provided for  in TN/DS/31  
 
- 43 - 
 
  paragraph 12 of Appendix 3 of the DSU. However, paragraph 1 provides for the possibility 
that the parties could nonetheless extend any otherwise accelerated timeframes by mutual 
agreement. The new numbering adopted in the Chair's text – Article 20 bis rather than Article 
8bis –reflects that Article 8 concerns only the panel composition stage, whereas the current 
Article 20 deals with overall timeframes and thus would seem to provide an appropriate 
article to which the new rules concerning accelerated tim eframes in safeguards disputes 
could be attached.  
 
2.7.2   Comments from Members on the Chair's text  
2.112.   The proponent generally agree d with the Chair's assessment of the discussions  on 
Timeframes. In particular, the proponent agreed that  the components relating to panel 
establishment upon first request , with a mechanism that would allow for postponement,  and 
rebalancing of time frames present most potential for convergence . Two other Members also agreed 
with this appraisal by the Chair. Like the Chair, the proponent no ted, however, that these 
components  should not be viewed  in isolation , and that they are linked  with other components of 
the same proposal as well as other issues discussed by the DSB -SS, including Transparency.  
2.113.   One Member considered the  current timeframes  to be reasonable and did not see a need for 
any amendments. That Member considered that the WTO should rather adhere to the timeframes 
that are already there and give itself the resources to do so.  
2.114.   Two developing country Members indica ted that establishment at first request would have 
to be accompanied by a guarantee that panel establishment can be postponed, and that due to 
resource constraints the proposed rebalancing of timeframes is likewise problematic for a developing 
country comp laining Member. Fourteen days, in their view, are not enough to file the first written 
submission. For the proponent, the Chair's proposed changes to Article 6 provide the necessary 
flexibility to postpone the establishment of a panel and does so in a way that dispenses with the 
need to distinguish between developed and developing country Members. The proponent observed  
in this regard that one Member opposed introducing any distinction between developed and 
developing country Members in connection with the process of panel establishment. Regarding the 
rebalancing of timeframes, the proponent noted  that the complaining Member has the time to 
determine when it is ready to bring a case and fourteen days are therefore enough.  
2.115.   With regard to adoption of panel reports, the proponent stated that it is open to retain 
Article  16.2, as suggested by the Chair, to ensure full participation of Members , including the 
disputing parties,  in considering a report  submitted for adoption. At t he same time, the proponent 
and one other Member stated that they are not convinced that it is necessary to retain Article 16.3, 
as the parties' right of participation  should be understood to follow implicitly  from the provisions of 
the DSU . One Member not ed that the 20 -day period before adoption of a panel report should be 
maintained as it is important to the consideration about whether to file an appeal.  
2.116.   Finally, the proponent noted that unlike previously, the issue of translation times should now 
also b e part of the discussions about timeframes.  
2.7.3   Chair's text41 
Article  4 
Consultations  
… 
 
 
7. If the consultations fail to settle a dispute within 60 
[30] days after the date of receipt of the request for 
consultations, the complaining party may request the 
establishment of a panel.  The complaining party may Note by Chair Seck : To 
avoid ambiguity about 
the length of the 
extension, it may be 
                                                
41 Chair Seck 's proposed modifications appear in grey shading and italics, or in the case of proposed 
deletions, just in grey shading . Other proposed changes are explained in Annex 1, section 7.1.  TN/DS/31  
 
- 44 - 
 
  request a panel during the 60 [30]-day period if the 
consulting parties jointly consider that consultations have 
failed to settle the dispute.  [This 30 -day period shall 
be extended by up to 30  days  upon th e request of a 
developing country Member that is a consulting 
[responding ] party. The maximum extension that 
may be requested is 30 days. ]  advisable not to combine 
the last sentence with 
the amendment to the 
second sentence of 
Article 12.10 as 
proposed below.  
… 
Article  6 
Establishment of Panels  
1. If the complaining party so requestsa, the DSB shall establish  a panel shall be 
established at the latest  at the DSB meeting following that  at which the request first 
appears as an item on the DSB's agenda, unless at that meeting  the DSB decides by 
consensus not to establish a panel.5 
_______________  
[a Where the party complained against is a developing country Member, 
t[T]he complaining party shall accord sympathetic consideration to a request 
from that Member  [the party complained against ] to postpone the 
establishment of a panel.  Such a request shall be made not less than five  days 
prior to the DSB meeting at which the request for panel establishment appears 
on the DSB's [proposed ] agenda, and the complaining party shall respond to 
such  a request prior to the commencement of that DSB meeting.]  
5 [In the event that the DSB decides not to establish a panel or the complaining 
party decides to postpone the establishment of a panel, i]f  and] the complaining 
party so requests, a meeting of the D SB shall be convened for this the purpose of 
[making a subsequent request for panel establishment]  [establishing the 
panel ] within 15  days of the request, provided that at least 10  days' advance notice of 
the meeting is given.  
… 
Article  12 
Panel Procedures  
… 
10. In the context of consultations involving a measure taken by a developing -country 
Member, the parties may agree to extend the periods established in paragraphs [3,] 7 
and 8 of Article  4.  [ [[Where]] t The consulting Member  compl aining party [[is 
a developed country [Member], it]]  shall agree to a request [ by the consulting 
responding party ] for an extension of the periods established in paragraphs [3 
(for entering into consultations), ] 7 and 8 of Article  4. The maximum 
extensions that the c onsulting responding party may request are of up to  [15 
days,]  30 days and 15  days [,] respectively.]  If, after the relevant period has 
elapsed, the consulting parties cannot agree that the consultations have concluded, the 
Chairman of the DSB shall decide,  after consultation with the parties, whether to extend 
the relevant period and, if so, for how long.  In addition, in examining a complaint 
against a developing country Member, the panel shall accord  allow  sufficient time for 
the developing country Member to prepare and present its argumentation  
[submissions.  In general, the panel should extend the timeframes in Appendix 
3 by two weeks for the presentation by the developing country Member 
[respondent ] [responding party ] of its first written submission and by one 
additional week for the presentation of written submissions or presentations TN/DS/31  
 
- 45 - 
 
  at each subsequent stage ]. [The provisions of paragraph 1 of Article  20 and 
paragraph 4 of Article  21 are not affected by  any action pursuant to this paragraph.  
Where the panel has acted pursuant to this paragraph to extend the time for 
preparation and presentation of submissions, the additional time taken shall 
be added to the periods referred to in Article 20 and paragraph  4 of Article 21 ]. 
… 
Article  16 
Adoption of Panel Reports  
 
1. In order to provide sufficient time for the Members to consider panel reports, 
the reports shall not be considered for adoption by the DSB until 20  days after the 
date they have been circulated to Members.  
2. Members having objections to a panel report shall give written reasons to 
explain their objections for circulation at least 10  days prior to the DSB meeting at 
which the panel report will be considered.  
3. The parties to a dispute  shall have the right to participate fully in the 
consideration of the panel report by the DSB, and their views shall be fully recorded.   
4.1. Within 60 days after the date of circulation of a panel report to the Members, 
the report shall be adopted at a DSB meeting42 unless a party to the dispute formally 
notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt 
the report. If a party has notified its decision to appeal, the report by the panel shall 
not be considered for adop tion by the DSB until after completion of the appeal.  This 
adoption procedure is without prejudice to the right of Members to express their views 
on a panel report . 
2. Members having objections to a panel report shall give written reasons 
to explain their  objections for circulation at least 10[x] days prior to the DSB 
meeting at which the panel report will be considered.  
3. The parties to a dispute shall have the right to participate fully in the 
consideration of the panel report by the DSB, and their view s shall be fully 
recorded . 
… 
[[Article  [820]bis 
Accelerated time -frames for disputes on safeguard measures  
1. [Subject to paragraph 4, t ]he following accelerated time -frames shall 
apply to disputes on safeguard measures unless otherwise extended by 
mutual agreement of the parties to the dispute.  
2. If the consultations fail to settle a dispute 
under Article  4 within 30 days of the request for 
consultations , any [the complaining ] party to such 
consultations may refer the matter to the Dispute 
Settlement Body  [DSB] for the immediate  
establishment of a panel [at the DSB meeting at 
which the request appears as an item on the DSB's Note by Chair Seck : 
This paragraph would 
not be necessary if 
Articles 4.7 and 6.1 
were amended as  
 proposed above.  
                                                
42 If a meeting of the DSB is not scheduled within this period at a time that enables the 
requirements of paragraphs 1 and  4 of Article 16 to be met, a meeting of the DSB shall be held for 
this purpose.  TN/DS/31  
 
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  agenda] , unless the DSB decides by consensus not 
to establish a panel.  
3. [Notwithstanding paragraph 1 of Article 12, t ]he time -frames in the 
Working Procedures of item 12 of Appendix 3 [ shall be halved. ] and. [The 
time-frames]  in paragraph 4 of Article  16 shall [ also] be halved.  
4. The accelerated time -frames in this Article  shall not apply to a dispute 
if a developing country party to that dispute requests the application of the 
standard DSU time -frames.]]  
… 
 
APPENDIX 3  
WORKING PROCEDURES  
… 
12. Proposed timetable for panel work : 
 
[(a)]  Organisational meeting with the parties    Starting date  
 
[(a)(b)] Receipt of first written submissions of the parties:  
 
(1) complaining Party:     3-6 weeks  
        14 days 
(2) Party complained against:     2-3 3-4 weeks  
… 
_______________  
 
 
  TN/DS/31  
 
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Standard indicative timetable for panel proceedings  
prepared by Chair Seck based on the proposed new Appendix 3 and Article 
12.10  of the D SU 
 
Description  Datefn 
Disputes 
involving a 
DEVELOPED 
country 
responding 
party  Date  
Disputes 
involving a 
DEVELOPING 
country 
responding 
party,  
"in general" 
(proposed new 
Article 12.10)  
Organizational meeting  Starting date  Starting date  
(a) First written 
submissions    
i) [complaining 
party ]  14 days  14 days  
ii) [responding party ] 3-4 weeks  5-6 weeks  
(b) Third parties' written 
submissions    
(c) First substantive 
meeting with the 
parties (including third -
party session)  1-2 weeks  2-3 weeks * 
(d) Responses from the 
parties and third 
parties to written 
questions    
(e) Integrated executive 
summaries of third 
parties' arguments    
(f) First integrated 
executive summaries 
of the parties    
(g) Second written 
submissions of the 
parties  2-3 weeks  3-4 weeks * 
(h) Second substantive 
meeting with the 
parties  1-2 weeks  2-3 weeks * 
(i) Responses to written 
questions    
(j) Comments on 
responses to questions    TN/DS/31  
 
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  Description  Datefn 
Disputes 
involving a 
DEVELOPED 
country 
responding 
party  Date  
Disputes 
involving a 
DEVELOPING 
country 
responding 
party,  
"in general" 
(proposed new 
Article 12.10)  
(k) Second integrated 
executive summaries 
of the parties    
(l) Issuance of descriptive 
part of the report to 
the parties  2-4 weeks  2-4 weeks  
(m) Comments by the 
parties on the 
descriptive part of the 
report  2 weeks  3 weeks * 
(n) Issuance of the interim 
report, including 
findings and 
conclusions, to the 
parties  2-4 weeks  2-4 weeks  
(o) Deadline for parties to 
request review of 
part(s) of the report 
and to request an 
interim review meeting  1 week  2 weeks * 
(p) Interim review meeting 
or, if no meeting is 
requested, deadline for 
comments on reque sts 
for review  2 weeks  3 weeks * 
(q) Issuance of the final 
report to the parties  2 weeks  2 weeks  
(r) Circulation of the final 
report to Members  Following 
translation  Following 
translation  
Total net difference, 
where the respondent is 
a developing country:  + 8 weeks   
* The additional week would be granted to both parties.  
_______________  
fnThe above timetable may be changed in the light of subsequent developments (Article  12.1 of 
the DSU).  
_______________  
 
   TN/DS/31  
 
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  2.8  Remand  
2.8.1   Comments from the Chair on his statement on Remand  
2.117.   The Chair's statement  below  on Remand  was circulated in advance of the DSB -SS meeting 
of 20 November 2018  and presented under the Chair's own responsibility . It is without prejudice to 
Members' final positions.  
2.118.   It emerged from the focused work in the DSB -SS on Remand that there still is significant 
divergence between  the G7 proposal , on the one hand, and the other  proposal by a single proponent , 
on the other hand. I therefore engaged directly with the proponents to explore the possi bility for 
achieving convergence through combining elements of both proposals. As this did not result in any 
progress, I am not in a position to put forward a single and unified Chair's text on Remand.  
2.119.   In the light of this, this statement limits itself to  recording in respect of the two textual 
proposals certain points that were clarified by the proponents, or could be clarified. In addition, the 
statement indicates points of convergence and divergence among the WTO membership at large.   
2.8.2   Comments from Mem bers on the Chair's statement  
2.120.   Members who commented noted that the Chair's statement correctly reflects that there was 
a lack of convergence between the G7, on the one hand, and the other proponent , on the other 
hand, and that there is substantial divergen ce among Members on whether it is desirable to have 
remand at all.  
2.121.   For one Member, remand raises serious concerns and would likely have negative 
consequences for dispute settlement without adding any real value to the system. According to that 
Member, it is unclear what problem remand would solve and it could even create new issues. That 
Member considered that no plausible reason exists to think that remand would lead to time -saving; 
to the contrary, it is difficult for that Member to see how parties could resist having a second bite at 
the apple by initiating remand proce edings. There would also be additional resource costs both for 
parties and the system. In that Member's view, the Chair's statement serves to highlight that 
significant elements of the proposals remain unclear.     
2.122.   The G7 proponents regretted that consensu s was not possible among the various proponents 
and reiterated their view that the introduction of a remand mechanism would improve WTO dispute 
settlement. They also observed that the Chair's statement would provide a useful document for 
future discussion of the topic. One G7 proponent suggested a small clarification to the Chair's 
statement. Specifically, it recalled that initiation of remand proceedings would be possible only by 
the party who had advanced the claim or defence to which the unresolved issue  to be remanded to 
the original panel relates. The Chair modified his statement to incorporate that suggestion.  
2.123.   The other proponent highlighted that there are key differences between the two proposals. 
For that proponent , the main question is which propos al assists more in achieving implementation 
by the responding party. This proponent prefers a single implementation process in this regard and 
considers that multiple Appellate Body or panel reports, as foreseen under the G7 proposal, could 
hamper the ulti mate resolution of the dispute.  
2.124.   One Member that spoke indicated that a remand mechanism could promote efficient dispute 
resolution, but emphasized that its support would depend on there being a properly conceived 
mechanism. That Member indicated that it wo uld need assurances that the mechanism would not be 
exploited to cause delay in the process or that it would not lead to unintended consequences. 
According to that Member, the discussions showed that the proponents need to provide further 
clarifications.  
  TN/DS/31  
 
- 50 - 
 
   
2.8.3   Chair's statement  
Members' review of the two proposals on Remand  
Proposal by the G7  
Six of the seven Members that make up the G7 proponents indicated that an important 
consideration underlying their proposal is that any incomplete analysis by the Appellate 
Body is an unfortunate outcome for the parties to a dispute, as it will result in a partially 
unresolved dispute. In their view, the inclusion in the DSU of a mechanism that would 
allow either party to pursue a remand to the panel would not waste  time, but save time, 
since the likely alternative would be to re -litigate aspects of the dispute through ordinary 
dispute settlement proceedings.  
The same G7 proponents highlighted that the key elements of their remand proposal 
include that: (i) the Appel late Body would provide a detailed description of what aspects 
of a dispute it cannot resolve; (ii) there would be standard procedures for the adoption 
of panel and Appellate Body reports; (iii) the party that advanced the claim or defence 
in respect of wh ich the Appellate Body could not complete the analysis would have 
discretion to pursue or not pursue remand (no automatic remand); (iv) if a party wished 
to pursue remand, the matter would be referred to the panel prior to the adoption of 
the panel and App ellate Body reports; (v) the mandate of the remand panel would be 
clearly circumscribed to facilitate expedited proceedings; (vi) the remand panel's report 
would be subject to appeal; and (vii) there would again be standard procedures for the 
adoption of r emand panel and Appellate Body reports.  
The remaining G7 proponent observed that there was a known concern around the 
amount of time it would take to complete remand proceedings. There could be more or 
less delay in the resolution of a dispute depending on  whether the adoption of non -
remanded parts of a panel report could be requested before or after the completion of 
remand proceedings. That G7 proponent also pointed to studies suggesting that the 
Appellate Body was unable to complete the analysis in only about 20 per cent of appeals. 
It was also not clear that in all these instances the Appellate Body could not complete 
the analysis because of a lack of necessary factual findings in the panel reports. The 
Member in question posed the question whether in th e light of these elements it was 
necessary to create a remand procedure. The Member made clear, however, that it 
remained flexible if there was a shared understanding among Members that it was 
desirable to introduce a remand procedure.  
One of the G7 propo nents stated that the deadline for a referral to a remand panel was 
very short, as a referral would need to occur before the adoption of the Appellate Body 
report, which in turn must occur within 30 days of its circulation to Members. That 
proponent indica ted its willingness to discuss alternatives. Other G7 proponents that 
addressed this point saw no need for any extension, but indicated flexibility.  
The focused work conducted on the G7 proposal showed that there are aspects of the 
proposal that could ben efit from further textual clarification.   
• First, the G7 proposal envisages that the referring party must make its referral 
before the adoption of the Appellate Body report. This raises the question of 
what would constitute the date of referral, i.e. wheth er it would be the date of 
receipt of the referral letter by the panel or the date of receipt by the Secretariat 
of the notification to the DSB. The G7 proponents indicated flexibility to add 
clarity about the date of receipt. The G7 proponents that spoke on this indicated 
a preference for using the date of receipt of the referral letter by the panel as 
the formal date of referral.  
• Second, the G7 proposal provides that the referring party must address its 
referral to the panel and must notify the DSB thereo f. It is not clear from the 
text of the G7 proposal whether the DSB would need to be notified at the same TN/DS/31  
 
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  time as the panel or only afterwards, and if so, whether the notification would 
need to be circulated to Members prior to the DSB meeting at which the  relevant 
panel and Appellate Body reports would be adopted. In connection with the 
adoption of the panel and Appellate Body reports, it could be useful for WTO 
Members to know, e.g. for purposes of expressing their views on panel and 
Appellate Body report s (Articles 16.4 and 17.14 of the DSU), whether aspects 
of the reports will be the subject of further litigation.  
• Third, and again concerning the proposed requirement to notify the DSB of a 
referral to a remand panel, it is not clear from the text of the G7 proposal 
whether, in view of the broad wording of Article 10.2 of the DSU, additional 
Members could come forward and participate as third parties for the first time 
in remand panel proceedings. The G7 proponents that addressed this point 
expressed the v iew that no additional Members should be allowed to participate 
as third parties for the first time in remand panel proceedings.  
• Fourth, the G7 proposal envisages that both the complaining party and the 
responding party may make a referral to a remand pane l. If it is the responding 
party who makes the referral, it would appear to be important to consider also 
the applicability to remand panel proceedings of Article 12.12 of the DSU, which 
provides for the possibility to suspend panel proceedings at the requ est of the 
complaining party. The DSB -SS already discussed a similar problem in the 
context of focused work conducted on the Post -retaliation proposals. If Article 
12.12 applied to remand panel proceedings initiated by the responding party 
and the original  complaining party (the complaining party from the original 
panel proceedings) could request a suspension of the remand panel 
proceedings, this could raise the concern that the complaining party might seek 
a suspension to delay the resolution of unresolved  issues (e.g. the merits of an 
affirmative defence invoked by the responding party) that had been referred to 
the remand panel by the responding party.  
• Fifth, as experience shows, the original panelists may not always be available 
to serve again. A partia l or complete re -composition of the remand panel may 
sometimes be necessary. As it can take time to re -compose the remand panel, 
it could be appropriate to have the 90 -day period for the completion of the 
remand panel's work start to run from the date on w hich the remand panel has 
been constituted, or (in accordance with the Timeframes proposal before the 
DSB-SS) the date on which the remand panel holds its organizational meeting, 
rather than from the date of referral of the matter to it. The G7 proponents that 
spoke on this point indicated readiness to review this matter.  
• Sixth, the G7 proposal states that Article 17 of the DSU and the proposed new 
Article 17. bis would apply to Appellate Body proceedings initiated after remand 
panel proceedings. It would ap pear that this would make it possible to initiate 
an appeal against a remand panel report on procedural grounds, e.g. that the 
remand panel examined issues that the referring party had not identified clearly 
enough in accordance with Article 17. bis.2. As s uch appeals would have an 
impact on the overall timeframe for dispute settlement and some Members 
emphasized the need to minimize the risk of abuse of remand, it could be 
reviewed whether the reference to the applicability of Article 17. bis.2 serves an 
important purpose.   
The other  proposal by a single proponent  
The proponent of the other proposal observed that a key consideration behind its distinct 
proposal is that, in its view, the inclusion in the DSU of a remand procedure should 
result in minimum chan ges to the current DSU. Otherwise, there was a risk of 
overburdening the dispute settlement system. This proponent noted that consistent with 
this consideration its proposal envisages that the Appellate Body would suspend the 
finalization of its report in order to give time to a remand panel to make the necessary 
factual findings. In this proponent's view, limiting the remand panel's role to that of TN/DS/31  
 
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  providing the necessary factual findings would ensure that remand proceedings could 
be completed promptly.    
 
Various aspects of this proposal were clarified during the focused work through 
questions from the Chair.  
• First, the proposal contemplates that the Appellate Body would provide the parties 
with tentative findings and recommendations on the issues for which it had been 
able to complete the analysis. The proponent confirmed that if no party made a 
subsequent referral to a remand panel, the Appellate Body's findings and 
recommendations would become definitive. It also confirmed that if there were a 
referral to a remand panel, the Appellate Body could modify its tentative findings 
and recommendations in the light of the reman d panel's factual findings.  
• Second, the proponent clarified the clause in its proposal that indicates that the 
Appellate Body, prior to circulating its report, would provide to the parties its 
tentative findings and recommendations and its description of the types of findings 
required to complete the analysis.  According to this proponent , the Appellate  Body 
would provide to the parties its tentative findings and recommendations and its 
description of the relevant types of findings before the 60 -90-day-period (Article 
17.5 of the DSU) elapses (i.e. sooner than it currently provides its findings and 
recommendations), and that the Appellate Body would circulate its report to 
Members within the 60 -90-day period if no party makes a referral to a remand 
panel.  
• Third, the proposal states that the Appellate Body is to complete its analysis upon 
receiving the factual findings from the remand panel. The proponent confirmed that 
this means that the Appellate Body would complete its analysis on its own, without 
furthe r input from the parties and third parties. However, the proponent indicated 
that it could be open to reviewing this aspect of its proposal.       
It emerged from the focused work conducted on this proposal that there also were 
aspects of the proposal that  could be further clarified.   
• First, the proposal envisages that the referring party make any referral to a remand 
panel by the time the Appellate Body specifies. The proponent confirmed that the 
Appellate Body would provide more or less time to parties f or deciding whether to 
make a referral depending on the number and complexity of the issues for which 
the Appellate Body lacks a sufficient factual basis. The proponent also answered in 
the affirmative the question whether it would be appropriate for the A ppellate Body 
to specify the time -period in each case only after consulting the parties.  
• Second, unlike the G7 proposal, this proposal does not specify the number of days 
that the remand panel would have to complete its task. The proponent indicated 
that it was reviewing the matter. It stated, however, that there should be flexibility 
to take into account the complexity of disputes and that a fixed 90 -day period would 
therefore not be desirable.  
• Third, the proposal indicates that the remand panel would sub mit its factual findings 
to the Appellate Body. There is no suggestion that these findings would be circulated 
as a separate panel report. There thus is a question as to how these findings, which 
are findings by the panel and not the Appellate Body, would be adopted by the DSB.  
• Fourth, under this proposal, appellate review proceedings are suspended in case of 
remand. It seems likely that if the Appellate Body had to complete the analysis upon 
receiving the factual findings by the panel, the 90 -day-period (Article 17.5 of the 
DSU) could be exceeded,  since the Appellate Body would first have to prepare and 
issue to the parties its tentative findings and provide a detailed description of the 
issues that could be remanded and would later still have to complete the analysis 
in the light of the remand pan el's factual findings. It could therefore be considered TN/DS/31  
 
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  whether in the context of this proposal it would be useful to clarify in Article 17.5 of 
the DSU that Article 17.5 applies subject to the provisions of the proposed Article 
17.bis.6, if indeed those p rovisions could result in the 90 days being exceeded.   
Overall picture  
The comments made during the focused work on Remand by Members other than the 
proponents revealed that Members hold contrasting views on whether it would be 
desirable to provide in the  DSU for a remand procedure.  
At one end of the spectrum, some Members indicated that they were in favour of 
inserting a remand procedure in the DSU, but they did not necessarily support all 
features of the procedure set out in the two proposals. Several o ther Members indicated 
that they supported the idea of creating a remand procedure in principle. At the same 
time, they signalled that their ultimate support would critically depend on whether all 
relevant aspects were adequately addressed. Their hesitatio n concerned such aspects 
as the impact that remand proceedings would have on the overall timeframes for dispute 
settlement and questions about how to guard against unintended consequences as well 
as how to prevent the responding party from exploiting the a vailability of remand to 
delay dispute settlement.   
At the other end of the spectrum, one Member expressed serious concerns about the 
two proposals to introduce a remand procedure, saying that remand would have 
negative consequences for the dispute settle ment system. In that Member's view, the 
value of remand is not clear, as the system has been working well for many years and 
there was no instance where remand was critical for resolving a dispute. One concern 
raised by this Member is that remand could aff ect how panels or the Appellate Body 
address issues before them. For instance, with the possibility of remand, panels might 
prepare incomplete reports because they would not want to reach complicated or 
sensitive issues. Or the Appellate Body might not wan t to complete the analysis in some 
cases. The result could be delay in case of a remand in a specific dispute. Another 
concern identified by this Member is that remand could change the nature of the 
relationship between panels and the Appellate Body in tha t there could be more mutual 
criticism between the two adjudicating bodies, leading to more remands. In that 
Member's view, it is also not clear how it could be avoided that the parties would try to 
re-argue their cases on remand. Finally, the Member conce rned pointed to the 
implications remand would have for the resources of parties, particularly responding 
parties.  
Even reviewing the Remand proposals on a without prejudice basis, Members expressed 
divergent preferences, or continued to have concerns, abo ut a number of specific 
aspects of these proposals. Some of these are briefly identified below.  
• Initiation of remand proceedings . All proponents favour an approach under which 
both the complaining and the responding party can initiate remand proceedings, i t 
being understood that only the party who put forward the claim or defence to which 
the unresolved issue relates may refer that issue to the original panel. Several other 
Members have stated that they would prefer that only, or mainly, the complaining 
party have the automatic right to initiate remand proceedings. In their view, this 
could avoid a situation where the responding party would make a referral to a 
remand panel just to delay the process, which would be the case e.g. where the 
outcome of the rema nd proceedings could not materially affect the ultimate dispute 
settlement outcome in view of other conclusions that the Appellate Body had been 
able to reach on the measure in question.  
• Double adoption (G7 proposal) versus single adoption ( the other proposal) of panel 
and Appellate Body reports . Some Members expressed a preference for double 
adoption (immediate adoption of panel and Appellate Body reports in a given dispute 
before any remand proceedings and subsequent adoption of panel and Appellate 
Body reports in the same dispute after any remand proceedings). In their view, this 
would make it possible for the complaining party to seek implementing action from TN/DS/31  
 
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  the responding party in respect of any findings of violation that the Appellate Body 
had made i n its report, without having to wait for the completion of the remand 
panel and any subsequent appellate review proceedings. However, other Members 
voiced a strong preference for single adoption and opposed double adoption. In their 
view, under a double ad option system, it could be difficult for the responding party, 
for domestic political and legal reasons, to implement adverse rulings and 
recommendations in the same dispute in two separate stages, or it might at the 
very least be inefficient to do so wher e the later rulings and recommendations could 
impact upon how the earlier rulings and recommendations would be implemented. 
The concern was also raised that there could even be conflicting rulings and 
recommendations concerning the same measure, in the sen se that a measure 
initially found WTO -inconsistent would subsequently, following remand panel 
proceedings, be found to be justified under a WTO exception.  
Noting the concerns raised about double adoption, the Chair explored with Members 
whether under a do uble adoption system the responding party could be required to 
implement only those recommendations and rulings of the DSB that would not be 
affected by the possible outcomes of remand proceedings, and if so, whether the 
Appellate Body could be required to  identify in its report which recommendations and 
rulings the responding party should implement in case there is a referral to a remand 
panel. Some Members that spoke agreed that it should not be left up to the responding 
party to determine which rulings a nd recommendations it would implement because it 
could have an incentive to determine that all recommendations and rulings of the DSB 
could be affected by the remand proceedings. Equally, however, other Members 
wondered whether the Appellate Body should ma ke that determination on its own, and 
if not, whether it would complicate and prolong the appellate review process if the 
Appellate Body first had to seek the views of the parties.  
• Overall length of dispute settlement proceedings . The proponents highlighte d that 
the availability of remand would ultimately save time, by obviating the need for re -
litigating unresolved issues. They also highlighted that their proposals already 
incorporate time -saving features, such as the short deadlines and the limited scope 
of remand panel proceedings (only issues identified by the Appellate Body may be 
the subject of remand proceedings). Some Members remained concerned, however, 
arguing that even if remand proceedings were conducted with a limited mandate 
and on an expedited  basis, they would still constitute a new step in the procedure 
and thus would prolong the dispute settlement process. They also stated that there 
was a risk of abuse, as the losing party could initiate remand proceedings to delay 
the entire process or par t of the process (depending on whether a single or double 
adoption system was used).  
• Possibility of multiple remands . In connection with concerns raised about extending 
the overall timeframes, one G7 proponent stated that under its proposal multiple 
reman ds in the same dispute are a possibility, but are considered unlikely owing to 
the narrow focus of remand proceedings, which could concern only those issues that 
the Appellate Body could not resolve. However, other G7 proponents indicated that 
they preferr ed to allow only a single remand. The other proponent observed that 
under its proposal there should be no need for multiple remands because remand 
would be limited to issues of fact. It is not clear from that proponent's proposal, 
however, how the Appellat e Body should proceed if it considered that the additional 
factual findings by the remand panel still did not provide it with a sufficient factual 
basis to complete the analysis.   
 
_______________  
 
  TN/DS/31  
 
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  2.9  Panel composition   
2.9.1   Comments from the C hair on his  text on Panel composition  
2.125.   The Chair's  text below  on Panel composition  was circulated in advance  
of the DSB -SS meeting  of 27 March  2019 and  presented under the Chair's own responsibility . It is 
without prejudice to Members' final positions.  
2.126.   The Chair's text takes into account the views of Members expressed during the focused work 
conducted by the DSB -SS on Panel composition . The proposal  on Panel composition  takes the form 
of a draft DSB deci sion on Working Practices Concerning Panel Composition , which sets forth a 
specific process for selecting the chair and members of WTO dispute settlement panels. Along with 
this proposal, the DSB -SS, at my suggestion and consistent with the approach of a p revious DSB -
SS Chair, included in its focused work on Panel composition  an aspect of the proposal on Flexibility 
and Member control  relating to the required expertise of panelists.  
Proposed DSB Decision on Working Practices Concerning Panel Composition  
 
2.127.   The proponent explained that the draft DSB decision aims at increasing the likelihood of the 
parties agreeing on a panel's composition, expediting the panel composition process and enhancing 
its predictability for the parties to a dispute. The proposal seeks  to achieve these objectives through, 
among other things, a single list of candidates to be put forward by the WTO Secretariat that allows 
the parties to know about all potential candidates from the outset and to rank them in accordance 
with their preferen ces. The proposal also limits the parties' ability to reject candidates, as routine 
rejection of candidates with no effective independent review of the reasons supporting the rejection 
can, according to the proponent, lead to a sub -optimal, lowest -common -denominator choice of 
panelists. The proponent indicated that the proposed DSB decision is the result of a collective 
Member effort and constitutes a mature draft, but that the proponent remained open to modifying 
the text to make it acceptable to Members.   
2.128.   Two Members wondered whether the ranking approach reflected in the proposed Working 
Practices would ensure that a panel's composition was balanced overall and included panelists with 
a sufficiently diverse background and a wide spectrum of experience , as required by Article 8.2 of 
the DSU. One Member was also concerned that the proposal could be going too far in limiting a 
party's ability to reject a potential panelist whom that party did not consider acceptable. Some 
Members indicated a need for further clarifications of certain aspects of the proposed DSB decision.  
2.129.   During the focused work of the DSB -SS, I posed questions to the proponent aimed at 
clarifying various aspects of the proposal. Based on the proponent's responses as well as questions 
and comme nts shared by other Members, I have suggested some specific modifications of the text 
of the proposed DSB decision. They are reflected in my Chair's text.  
2.130.   Below I provide a brief explanation of these changes and address certain other aspects of 
the propos al that were discussed by the group.  
Compiling a  single  Secretariat list of candidates for panelists  
 
2.131.   With respect to the single list of candidates that the Secretariat would submit to the parties 
under paragraph 4 of the proposed DSB decision, I have sugg ested clarifying that each person on 
the list meet at least one of the criteria requested by the parties to ensure that the list is responsive 
to those criteria. In a similar vein, I have suggested a textual modification in the first footnote to 
paragraph 6 of the draft DSB decision to make it clear that the parties may be present when the 
Secretariat must draw by lot the number of persons needed to compose a panel (as would be the 
case in a situation where there is more than one nomination with equal combi ned preference and 
the lowest degree of divergence between the parties' rankings).   
Procedure in case  of objections to Secretariat nominations on conflict of interest grounds  
 
2.132.   Paragraph 5 of the proposed DSB decision states that t he parties may object to t he 
Secretariat's nominations in the event of a conflict of interest as referred to in the  WTO's  Rules of 
Conduct  (WT/DSB/RC/1) . Pursuant to paragraph 5, t he Secretariat is to decide whether there is a TN/DS/31  
 
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  conflict of interest with respect to a particular nomination, and if there is, the relevant nomination 
is to be withdrawn from the Secretariat's list of nominations. At the DSB -SS meetings, Members 
considered whether in view of the existing Rules of Conduc t, and in particular their paragraph VIII, 
it would be necessary and appropriate for the Secretariat to be the decision -maker in a contentious 
situation where one party considers that there is a conflict of interest and another considers that 
there is none  and that the nomination should therefore remain on the list. According to the 
proponent, a party's objection based on conflict of interest would need to be substantiated. In the 
proponent's view, such an objection should not be ignored, but it should also  not be accepted 
automatically, and the Secretariat would be best placed to make a decision on whether a conflict 
exists. One Member expressed doubt that the Secretariat would be best placed to judge whether a 
conflict of interest arises and submitted that  a party's objection relating to a conflict of interest 
should be accepted automatically, as long as it had been duly substantiated. Another Member 
suggested that the Secretariat could avoid the need for a decision if it withdrew from its list a 
nomination  with respect to whom a conflict of interest issue had been raised. However, the proposed 
DSB decision does not appear to enable the Secretariat to avoid a decision and instead withdraw 
and replace a nomination in a situation where the parties disagree on whether a conflict of interest 
arises regarding a particular nomination. The Chair's text below does not contain any suggestions 
concerning paragraph 5.   
Appointment of panelists by the WTO Director -General  
 
2.133.   Paragraph 9 of the proposed DSB decision provid es that the WTO Director -General " shall 
determine the composition of the panel by appointing, [if possible][to the utmost extent possible] 
from the nominations prop osed by the Secretariat, [to the extent they are available,] except the 
nominations rejected  in accordance with paragraph 5, the panelists whom the Director -General 
considers most appropriate , after consulting with the parties to the dispute ". The proposed draft text 
does not explicitly reflect the current practice of some Members whereby they in itially authorize the 
Secretariat to nominate third -party nationals (e.g. non -governmental third -party nationals), but 
subsequently invoke their rights under Article 8.3 of the DSU, with the consequence that the 
Director -General is not authorized to appoin t any third -party nationals (whether governmental or 
non-governmental individuals). The proposed draft text requires the Director -General to appoint 
panelists from the nominations proposed by the Secretariat, which may include third -party nationals, 
and st ipulates an exception, which relates to previously rejected nominations (paragraph 5). During 
the focused work, Members discussed whether the current draft text makes sufficiently clear that 
the Director -General would not be allowed to appoint a third -party national previously nominated by 
the Secretariat, but not rejected by a party in accordance with paragraph 5, if a party does not wish 
the Director -General to appoint any third -party nationals to the panel. The proponent took note of 
the issue and stated  that it was open to considering it further.  
2.134.   Paragraph 9 refers to the Director -General's obligation under Article 8.7 of the DSU to consult 
with the parties before determining the composition of a panel , but it does not refer to the Director -
General's pa rallel obligation under Article 8.7 to consult with chairpersons of the DSB and the 
relevant WTO councils or committees before determining the composition of a panel. In response to 
a question, the proponent expressed the view that the latter obligation ne ed not be repeated in the 
proposed DSB decision, but indicated its readiness to consider this issue further.  
2.135.   In response to a further question about the meaning of the language within the first set of 
square brackets in paragraph 9 (according to which the Director -General is to determine the 
composition of the panel by appointing, "[if possible][to the utmost extent possible] ", from the 
nominations proposed by the Secretariat ), the proponent responded that the options between square 
brackets are meant to pr ovide the Director -General with a degree of flexibility in appointing 
panelists. According to the proponent, the objective is to make the panel composition process more 
predictable for the parties. But the proponent observed that ultimately it was for the Director -General 
to assess whether it would be possible to appoint candidates from the list initially suggested by the 
Secretariat. Members did not express any preference concerning the two options proposed in square 
brackets.  
2.136.   Finally, after receiving confirmation from the proponent, I have suggested inserting in 
paragraph 9 a reference to the chairperson of the panel to clarify that the Director -General can be 
requested to compose a panel also in the situation contemplated in t he second set of square brackets 
in paragraph 6 of the proposed DSB decision, i.e. in a situation where the parties can in principle 
agree on three persons, but cannot agree on who should serve as chairperson of the panel.  TN/DS/31  
 
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  Proposed additional language on the required expertise of panelists  
(Article 8.2 of the DSU)  
 
2.137.   In view of its direct relevance to the selection of panelists, I suggested to participants that 
the DSB -SS discuss the revised language in Article 8.2 of the DSU, which forms part of a proposal  
on Flexibility and Member control , together with the proposal on Panel composition . One of the co -
proponents of the amendment to Article 8.2 stated that it was continuing to consult internally on the 
issue of Flexibility and Member control  and that it was not in a position to discuss the proposal 
concerning Article 8.2 during the opening meeting and Chair's consultations. That co -proponent 
reserved its right to comment on the proposal at a later stage. The other co -proponent explained 
that the additional language in Article 8.2 of the DSU is intended to ensure that panelists have the 
preparation and competence to do their work. It noted that while in practice the condition has been 
met, there currently is no obligation to do so.  
2.138.   While sever al Members spoke in support of the proposed modified language of Article 8.2, 
one Member questioned the need for the amendment given that the Director -General and Secretariat 
have, in that Member's view, been mindful in their panel composition activities o f the expertise 
required for panel service.  
2.139.   The Chair's text below does not suggest any changes to the proposed additional language 
on the expertise of panelists as contained in document JOB/DS/14.  
2.9.2   Comments from Members on the Chair's text  
2.140.   According to t he proponent, the Chair's text appropriately  reflects the most recent  
discussions  on Panel composition . The proponent indicated that it supports the additional language 
inserted by the Chair . The proponent further stated that this latest draft legal text  already 
incorporates the views previously expressed by Members and that it is a technically ready and 
mature legal draft, which, with the additional clarifications by the Chair, should be acceptable to 
Members . 
2.141.   Two Members raised concerns about the proposal  on a conceptual and technical level. One 
Member questioned the need to change the current process and doubted that the proposal would 
improve the panel composition process. That Member expressed the view that the proposal would 
make it more difficult for the parties to agree on panel composition. Another Member queried 
whether the mathematic al formula embedded in the proposal would  ensure that  the overall 
composition of a panel was balanced and that the panelists  selected through the process have 
appropria te background. That Member also had doubts regarding whether rejections of candidates 
can be limited only to instances of conflict of interests.  
2.9.3   Chair's text43 
Article 8 – Composition of Panels  
… 
2. Panel members  Panelists  should be selected with a view to ensuring the their  
independence of the members  and that the panel as a whole contains expertise 
to examine the kind of matter at issue in the dispute , a sufficiently diverse 
background and a wide spectrum of relevant  experience.  
 
… 
Proposed Decision by the Dispute Settlement Body on  
Working Practices Concerning Panel Composition  
 
                                                
43 Chair Seck 's proposed modifications appear in grey shading and italics . Other proposed changes are 
explained in Annex 1, section 9.1.   TN/DS/31  
 
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  The Dispute Settlement Body (DSB),  
[Desiring to enhance the process by which panels are composed under Article 
8 of the Understanding on Rules a nd Procedures Governing the Settlement of 
Disputes (DSU);  
Resolved to expedite this process and enhance its 
[transparency ][predictability] ; 
[Recalling the need to compose panels of well -qualified individuals and to 
ensure their independence; ] ] 
Hereby decides as follows:  
1. This Decision establishes [rules ] [procedures] [working practices]  on 
the composition of panels pursuant to Article 8 of the DSU for the parties, the 
Director -General and the Secretariat.  
2. [The DSB may at any time review or terminate  these rules, as necessary [, 
in order to further improve them in the light of the experience gained, ] by 
revising the present Decision or adopting other Decisions .] 
3. The following procedure shall apply [where a panel has been established 
and needs to be composed ][to the composition of panels] , without prejudice 
to the parties' [right ][ability]  to agree on any or all panelists or on an 
alternative procedure for selecting them . 
4. After the establishment of the panel, the Secreta riat shall ask each party 
to indicate any particular selection criteria (such as qualifications or 
experience) it wishes the panelists to [have ][satisfy] . The Secretariat shall 
present to the parties a single list of persons [whom the Secretariat has been 
able to identify][ known to the Secretariat ] who each  meet [at least one ] [any  
of] the requested criterias, to the utmost extent possible. Unless the parties 
agree otherwise, Tthis list should normally comprise the names of between 12 
and 20 persons, togeth er with their [if possible updated] curricula vitae , 
unless the parties agree otherwise . 
_______________  
s Where the parties request several or different criteria, the list should 
comprise persons who meet one or more of these criteria.  
5. Each partyt may reject one of those nominations where the list comprises 
no more than 10 persons, two where it comprises between 11 and 20 persons 
and three where it comprises more than 20 persons. The parties may otherwise 
object to the Secretariat's nominations to the l ist only in the event of a conflict 
of interest as referred to in the Rules of Conduct. In such cases, the party 
concerned must substantiate its reasons and provide the corresponding 
evidence. The Secretariat shall not take into account objections of other  
nature. Each party shall then provide to the Secretariat a ranking in order of 
preference of all the proposed names, except of the rejected nominations and 
those withdrawn from the list based on the Secretariat's decision that there is 
a conflict of inter est. [Paragraph 3 of Article 8 of the DSU remains unaffected.]  
_______________  
t Where there are multiple complainants and a single panel is established 
under paragraph 1 of Article 9 or several panels are composed of the same 
persons under paragraph 3 of Article 9, the complainants shall exercise the 
right of rejection by dividing th e available rejections among themselves, 
unless the complainants agree otherwise.  TN/DS/31  
 
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  6. The Secretariat shall ascertain which nominations received the highestu 
combined preference by adding the results of the ranking of the respondent 
and that of the complain ant.v  The Secretariat shall then verify whether [these 
persons are available and whether the parties agree on the resulting panel 
composition as well as on the member of the panel who shall serve as 
chairman ] [the parties agree on the resulting panel comp osition as well as on 
the member of the panel who shall serve as chairman and whether these 
persons are available] . 
_______________  
u Among nominations with equal combined preference, the person(s) with the 
lowest degree of divergence between the parties' rankings shall receive 
priority. Where this is the case for more nominations than are needed to 
compose the panel, the Secretariat shall draw by lot , in the presence of the 
parties,  the needed number of persons from among those nominations.  
v Where there a re multiple complainants and a single panel is established 
under paragraph 1 of Article 9 or several panels are composed of the same 
persons under paragraph 3 of Article 9, the Secretariat shall, before 
proceeding to this addition, merge the results of the  rankings of all 
complainants into a single ranking by calculating an average for each 
nomination.  
7. [In exceptional circumstances, and at the joint request of the parties , or 
where an insufficient number of persons are available , the Secretariat shall 
may present an expanded, second list of nominations, in order to repeat the 
steps set out in paragraphs 5 and 6.]  
8. In accordance with paragraph 10 of Article 8 of the DSU, [when a dispute 
is between a developing country Member and a developed country Membe r and 
the developing country Member so request sed, at the moment of indicating 
criteria under paragraph 4 , [this Decision shall be applyied in such a manner 
that at least one panelist shall be from a developing country Member. To this 
end,] as necessary, t he Secretariat shall select the developing country citizen 
obtaining the highest combined preference shall be chosen .w 
_______________  
w Among nominations with equal combined preference, the person(s) with the 
lowest degree of divergence between the partie s' rankings shall receive 
priority. Where this is the case for more nominations than are needed to 
compose the panel, the Secretariat shall draw by lot the needed number of 
persons from among those nominations.  
9. Where the parties do not agree on the pane l's composition , including the 
panel's chairperson,  within 20 days after the date of the establishment of a 
panel and either party requests that the Director -General compose the panel 
in accordance with paragraph 7 of Article 8 of the DSU, the Director -General 
shall determine the composition of the panel by appointing,  [if possible][to 
the utmost extent possible] from the nominations proposed by the Secretariat,  
[to the extent they are available,] except the nominations rejected in 
accordance with paragraph 5, the panelists whom the Director -General 
considers most appropriate, after consulting with the parties to the dispute.  
_______________  
 
 
 
  TN/DS/31  
 
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  2.10  Effective compliance  
2.10.1   Comments from the C hair on hi s statement  on Effective compliance  
2.142.   The Chair's  statement  below  on Effective compliance  was circulated in advance of the DSB -
SS meeting of 27 March  2019 and  presented under the Chair's own responsibility . It is without 
prejudice to Members' final positions.  
2.143.   The proposals on Effective compliance,  which relate to distinct aspects of compliance with 
and enforcement of DSB rulings and recommendations, include:  
• a joint proposal by a group of Members relating to effective remedies as well as temporary 
administrative measures in case of a failure to com ply with DSB rulings and 
recommendations;  
 
• a proposal by another Member on including in the calculation of the level of nullification or 
impairment the nullification or impairment suffered during the RPT; and  
 
• a proposal by a further Member seeking to clarify that the level of nullification or impairment 
should be calculated from the expiry of the RPT and that the year of expiry of the RPT should 
be used as the relevant reference period.  
 
2.144.   A further proposal for a new obligation to be inserted in Article  22.7 of the DSU requires that 
the DSB be notified of any  retaliatory  measure taken pursuant to an authorization granted by the 
DSB and any amendment or termination of such measure . This proposal was discussed by the DSB -
SS as part of its focused work on S equencing. The present Chair's statement does not, therefore, 
include any further reference to this proposal.   
2.145.   During its focused work on Effective compliance, the DSB -SS did not hold substantive 
discussions on all aspects of the three above -mentioned pro posals. Some proponents requested 
clarifications from the Secretariat regarding the origin and status of the texts of the proposals that 
the Secretariat had circulated. The sponsors of the joint proposal also stated that they were revisiting 
certain aspect s of their proposal with a view to narrowing its scope and consolidating it. The 
proponents reserved their right to come back to this matter at a later stage.  
2.146.   Against this background, I have decided to circulate a Chair's statement rather than a Chair's 
text.  
2.10.2   Comments from Members on the Chair's statement  
2.147.   One Member noted that effective compliance was essential for the proper functioning of the 
system and therefore deserves attention. Another Member recognized the importance of making 
compliance with DSB rulings and recommendations more effective, but expressed serious 
reservations about whether the proposals were the right ones to achieve that objective. A further 
Member questioned whether the proposals on Effective compliance would improve the functionin g 
of the WTO dispute settlement . In that Member's view, the proposals are problematic because they 
would  fundamentally change the nature of compliance by introducing retroactivity and distorting the 
concept of compliance.  
2.10.3   Chair's  statement  
Joint proposal r elating to effective remedies as well as temporary  
administrative measures in case of a failure to comply with  
DSB rulings and  recommendations  
In the context of the meetings of the DSB -SS on Effective compliance, I submitted a list 
of possible questions t o the sponsors of the joint proposal. They were annexed to the 
meeting agendas. As no responses could be received to these questions during our 
focused work, it is useful for purposes of any follow -up work to record which aspects of 
the text or practical f unctioning of the joint proposal could be further examined. The 
article references identified below relate to the joint proposal as it currently stands.  TN/DS/31  
 
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  With respect to effective remedies, the following aspects of the joint proposal may 
benefit from furthe r clarification by the proponents:  
• regarding the proposed additional sentence of Article 22.4, the question arises 
whether in the case of a developing country complaining Member the level of 
nullification or impairment would include not only lost trade, bu t also a separate 
estimate of the impact of the inconsistent measure on the economy of that Member, 
and if so, what kinds of direct or indirect economic "impact" could properly be taken 
into account;  
• regarding the proposed additions to draft Article 22.6(b ), there are questions 
around how authorizing other Members to suspend concessions or other obligations 
on behalf of the developing country complaining Member would operate in practice 
(e.g. when the developing country complaining Member would have to requ est that 
the DSB authorize other Members to suspend concession on its behalf and whether 
the other Members who would be granted authorization would have to be identified 
by name in advance, and whether once other Members have been authorized to 
suspend con cessions on behalf of the developing country complaining Member, the 
latter would have given up its right to suspend concessions, and if not, whether all 
authorized Members could suspend concessions at the same time); and, finally,  
• regarding the proposed n ew Article 22.3 bis, I explored the possibility of using 
language that ensures consistency with the language of the current Article 22.2 of 
the DSU.  
As regards the proposed Article 28 bis concerning temporary administrative measures 
in case of a failure to comply with DSB rulings and recommendations, a question was 
submitted to further clarify what, precisely, the Secretariat would report in every DSB 
and General Council meeting about the implementation of temporary administrative 
measures.  
Proposals concerning the calculation of the level of nullification  
or impairment  
As noted, there are two separate proposals relating to the manner in which arbitrators 
acting under Article 22.6 of the DSU should calculate the level of nullification or 
impairment.  
Proposal to include the RPT in the calculation of the level of nullifica tion or impairment  
First, the DSB -SS considered one Member's proposal to render compliance with rulings 
and recommendations of the DSB more effective by including the RPT for 
implementation of these rulings and recommendations in the calculation of nullifi cation 
or impairment. This element of the proposal is reflected in document JOB/DS/14, which 
I had generally used as a basis for the group's discussion on Effective compliance.  
According to the proponent, this proposal would include both a retroactive and  a 
prospective element, because the complaining Member suffers nullification or 
impairment already during the RPT. The proponent submitted that its proposal would 
reduce the incentive for the responding party to maintain inconsistent measures until 
the end  of the RPT or even during any subsequent compliance proceedings. According 
to the proponent, the proposal would thus help to bring about prompter compliance 
following the adoption of a panel report or panel and Appellate Body reports. The 
proponent also c larified that under its proposal, an Article 22.6 arbitrator would, upon 
request, make a separate determination of the level of nullification or impairment 
suffered during the RPT, in addition to the determination of the level of nullification or 
impairmen t suffered from the end of the RPT, and that the DSB would then be required 
to authorize an additional level of suspension  (beyond the level of suspension that may 
already be authorized under the DSU as it currently stands)  that reflects the level of 
nullification or impairment suffered during the RPT. TN/DS/31  
 
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  Proposal to calculate the level of nullification or impairment from the end of the RPT 
and using the year of expiry of the RPT as the relevant reference period  
Second, the DSB -SS considered a proposal by anot her Member clarifying that the level 
of nullification or impairment should exclude any nullification or impairment suffered 
during the RPT and that the reference period for the Article 22.6 arbitrator's calculation 
should be the year in which the RPT expir ed. This proposal, while not reflected in 
document JOB/DS/14, was discussed by the DSB -SS after the circulation of that 
document and prior to the commencement of the sequential focused work in 2016.  
In explaining its proposal, the proponent noted that it i s often very difficult for a 
responding Member to correct inconsistent measures immediately after the DSB issues 
its rulings and recommendations. The proponent stated that if a responding Member 
needs a RPT to implement DSB rulings and recommendations, thi s is not a failure to 
comply and any impairment or nullification caused during any RPT that has been granted 
should therefore not be included in the calculation of the level of nullification or 
impairment. However, the proponent clarified that under its pr oposal an authorization 
from the DSB to suspend concessions or other obligations would include an amount 
covering nullification or impairment suffered during the period between the expiry of 
the RPT and the day of the DSB authorization. The proponent furth er observed that 
arbitrators acting under Article 22.6 needed guidance from Members regarding what 
reference period they should use to determine the level of nullification or impairment. 
The proponent indicated that its proposal regarding the relevant refe rence period 
codified the practice at the time the proposal was made.  
As regards using the year in which the RPT expires as the reference period for calculating 
the level of nullification or impairment, the proponent explained that the phrase "unless 
circumstances require otherwise" would allow deviations from this approach, including 
using the year immediately after the year in which the RPT expires. It was further 
clarified in response to a question that the intention of the proposal is that an Article 
22.6 arbitrator would use as a reference period, if possible, a period of the year in which 
the RPT ends (e.g. a six -month period in year 20XX). However, the reference period 
used would need to follow the end of the RPT (i.e. the six -month period following t he 
last month of the RPT, which might for instance be March 20XX). One Member wondered 
in this respect how this would work in practice if, for instance, the RPT were to expire 
close to the end of a year, leaving, for instance, only two weeks as the relevan t 
reference period for establishing the level of nullification or impairment.  
During the discussions of this proposal, certain Members expressed support for the idea 
that the calculation of the level of nullification or impairment should include nullificat ion 
or impairment suffered after the end of the RPT, but not nullification or impairment 
suffered earlier.  
In view of the comments that Members made on this proposal, it is in my view useful 
for future work of the DSB -SS to insert it in the most recent dra ft legal text under 
consideration by the DSB -SS as a possible alternative amendment to Article 22.7. I 
have therefore included the proposal in Annex 1 to this document.44 
 
_______________  
 
 
  
                                                
44 See Annex 1 below, section 10.1. TN/DS/31  
 
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  2.11  Developing country interests  
2.11.1   Comments from the Chair on his text on Developing country interests   
2.148.   The Chair's  text below  on Developing country interests  was circulated in advance of the DSB -
SS meeting of 27 March  2019 and  presented under the Chair's own responsibility . It is without 
prejudice to Members' final positions.  
2.149.   The Chair's text takes into account the views of Members expressed during the focused work 
conducted by the DSB -SS on Developing country interests . The Chair's text excludes certain 
elements relevant to Developing coun try interests  that have been previously considered by the DSB -
SS when conducting focused work on other issues, such as  Third-party rights,  Timeframes  and 
Effective compliance.   
2.150.   The joint proposal on Developing country interests , on which the DSB -SS conduct ed focused 
work, has three main components:  
• a proposed amendment to Article 4.10 of the DSU requiring Members to give special 
attention to problems and interests of developing country Members, including with regard 
to the venue for consultations and the questions to be answered by developing country 
responding Members  during consultations;  
 
• a proposed amendment to Article 21.3 of the DSU, requiring an arbitrator acting under that 
provision to give due consideration to the problems an d interests of developing country 
Members in determining the RPT to implement DSB rulings and recommendations; and  
 
• a proposed new Article 28 of the DSU and a related proposed new Appendix to the DSU, 
establishing a DSB Fund to facilitate developing countr y Members' effective use of dispute 
settlement procedures and requiring that in certain situations WTO adjudicators award legal 
costs to developing country Members unable to access the DSB Fund due to lack of WTO 
budget.  
 
2.151.   Thus, the joint proposal has essen tially two prongs: one that seeks to ensure adequate 
consideration of developing country interests at the consultations and implementation stages and 
another that aims at making the WTO dispute settlement mechanism more accessible for developing 
country Me mbers.  
2.152.   As there was limited engagement by Members on this issue , in the Chair's text below , I 
limited myself to identifying possible incremental changes to the text of each of the components of 
the proposal. These possible changes serve to clarify the  text or operation of the relevant  
component. The following observations are provided to introduce the possible changes and identify 
issues or concerns  by some Members  that emerged during the focused  work of the DSB -SS.  
Proposal relating to developing country Members' problems and interests  
at the consultations stage  
 
2.153.   The proposal concerning Article 4.10 contemplates three changes. First, it introduces 
mandatory rather than exhortatory language to ensu re that special attention be given during 
consultations to the developing country Members' problems and interests. Second, it gives 
developing country Members the right to determine the venue for consultations with developed 
country Members. Third, it prov ides for a mandatory deadline by which a complaining Member must 
submit to a developing country responding Member any written questions prior to the consultations. 
The focused work of the DSB -SS concentrated on the second and third proposed changes.  
2.154.   Regard ing the obligation of developed country Members to accept a request of a developing 
country Member concerning the venue for the consultations, the co -proponents explained that the 
proposal is meant to address developing country Members' financial constrain ts, since travelling to 
Geneva for consultations is costly for them. In response to a question from the Chair, the 
co-proponents agreed that the current draft text is quite broad and could thus be appropriately 
circumscribed, as the preference was for cons ultations to be held in the territory of the developing 
country Member concerned, specifically its capital. Two co -proponents also indicated that with the TN/DS/31  
 
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  advances of technology, it could now also be contemplated that consultations would be held via 
videoc onferencing, provided this was available and secure so that the confidentiality of the 
consultations could be safeguarded. They indicated that appropriate language could be built into the 
proposal.  
2.155.   During the discussions, some Members indicated that they w ere open to exploring the idea 
of holding consultations at a venue other than Geneva. One Member considered that different 
scenarios should be developed, as different developing country Members had different needs. 
Another Member made a cautionary note abo ut the mandatory nature of the proposal. In its view, 
there should be an agreement between the parties to hold consultations outside Geneva, as aspects 
like efficiency and convenience also came into play for developed country Members even if they 
could fin ancially afford holding consultations at another venue.  
2.156.   The Chair's text below seeks to reflect the incremental additional convergence that was 
achieved during the focused work by inserting into the proposed Article 4.10(a) an alternative 
version to expre ss more clearly that when it comes to consultations, the co -proponents are mainly 
seeking to avoid the need for travelling, due to its cost implications, and that this could be achieved 
in a variety of ways, including, where appropriate, recourse to electr onic communication.   
2.157.   Regarding the other proposal, which requires the complaining Member to give specified 
advance notice of questions that a developing country responding Member is invited to answer when 
the consultations take place, the co -proponents in dicated in response to a question that there was 
no need to refer to questions that third parties participating in consultations may have, as only the 
complaining Member was typically given the opportunity to ask questions. One co -proponent 
suggested that for the avoidance of doubt it could thus be clarified in the draft text that the questions 
at issue in the proposal are questions posed by the complaining party.  
2.158.   One Member noted that the language of the proposal could be understood as precluding 
follow -up questions that might arise only during the consultations. One co -proponent explained that 
this was not the intention of the proposal. As Chair, I submitted for discussion a textual clarification 
to indicate that the questions at issue are questions "for w hich responses are requested on the date 
of holding the consultations", which would preserve the possibility of asking follow -up questions for 
which responses would be requested after the consultations. One co -proponent expressed the view 
that it was not n ecessary to insert this clarification.  
2.159.   Based on a question from the Chair, the DSB -SS also explored the practical operation of the 
proposed deadline for submitting questions in different situations, as it seemed possible that the 15 -
day deadline could not  be met in all scenarios contemplated in Article 4.3 of the DSU. One co -
proponent indicated that in view of the timeframes specified in Article 4.3 it appeared reasonable to 
specify in the proposed text that the complaining party is not expected to submit any questions 
before the developing country responding Member has responded to the request for consultations in 
accordance with Article 4.3.  
2.160.   Based on Members' discussions during the focused work, I included i n the Chair's text below 
possible changes  to clarify the proposal  and its operation .  
Proposal relating to consideration of the problems and interests of developing country 
Members in determining the RPT to implement DSB rulings and recommendations  
2.161.   The proposed amendment to Article 21.3 of the DSU requ ires that due consideration be given 
to the problems and interests of developing country Members in determining the RPT to implement 
rulings and recommendations of the DSB . One co -proponent clarified in response to a question from 
the Chair that this propo sed obligation would apply in three situations and operates as follows:  
• Where a developing country complaining Member prevailed in a dispute against a developed 
country responding Member, it should, for instance, be considered what impact on the 
economy of  the developing country Member the grant of a longer RPT to the developed 
country Member could have.  
 TN/DS/31  
 
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  • Where a developing country Member is the responding party, it should, for instance, be 
considered what particular challenges a developing country respondi ng party would face in 
complying with DSB rulings and recommendations.  
 
• Where all parties to the dispute are developing country Members, all developing country 
parties' interests should be considered.  
 
2.162.   The co -proponent also clarified that the proposed obligation would apply under all three 
methods set out in Article 21.3 for determining the RPT, and that the proposal is concerned with the 
problems and interests of any developing country Members involved in a dispute as parties.  
2.163.   One Member cautioned that it was less than clear what were relevant and appropriate 
problems and interests of developing country Members that an arbitrator acting under Article 21.3(c) 
would need to consider in determining the RPT  and wondered whether a developing country Member 
could simply assert the existence of such problems and interests.  
2.164.   To clarify that the proposal applies to each subparagraph of Article 21.3 (such that 
developing country Member interests must be considered  when the responding Member proposes 
an RPT, the parties agree on the RPT, or the RPT is determined by an arbitrator), I have included in 
the annexed Chair's text appropriate modifications to the proposed language of the provision. In the 
same vein I have included in the Chair's text below additional wording to clarify that the problems 
and interests to be considered are those of developing country Members that are parties to the 
dispute in which the RPT is to be established.  
Proposal for the creation of a DSB Fund and award of legal costs to  
developing country Members  
DSB Fund  
 
2.165.   The propos ed new Article 28(a) requires the DSB to establish a DSB Fund , to be financed, 
inter alia , from the regular WTO budget,  to facilitate access  to and use of  the WTO dispute settlement  
mechanism by developing country Members, whether it be as complaining or responding parties . A 
proposed new Appendix to the DSU sets forth the rules governing disbursements under  the DSB 
Fund to developing country Members involved in dispute set tlement.  
2.166.   In response to questions from the Chair regarding the method for allocating disbursements 
to developing country Members, two  co-proponent s expla ined that  disbursements from the DSB 
Fund could be made on a first  come, first  served basis  and that s pecific minimum amounts could be 
allocated for  each quarter  to ensure that some funds would be available throughout the year . One 
co-proponent further explained  in response to a question  that, in its view,  if a disbursement from 
the DSB Fund w as made to a developing country Member for one stage  of the dispute settlement 
process,  disbursement should also be made available for any subsequent stages that the dispute 
might reach. The co -proponent acknowledged, however, that this aspect of the proposa l would need 
to be further clarified and elaborated . 
2.167.   Two Members expressed reservations about the creat ion of a  DSB Fund in  the light of the 
assistance already available to developing country Members involved in dispute settlement  through  
the Advisory Cent re on WTO Law (ACWL). One co -proponent noted  in response  that the services of 
the ACWL are not always available to Members due to conflict s of interest on the part of the ACWL 
and that even if in such cases a developing country Member party could obtain le gal assistance from 
another source and benefit from subsidized lawyers' fees through that source, the fees that would 
be charged would still have to be financed by the developing country Member . Another Member 
indicated that it was generally supportive of the creation of a DSB Fund, but that more details needed 
to be provided regarding how funds would be distributed under such a fund.  
2.168.   Based on the aforementioned suggestions from co -proponents, I inserted in the Chair's text 
below an additional sentence at the end of paragraph 1 of the proposed new Appendix to achieve 
additional clarity on the important question of how disbursements would be made under the 
proposed DSB Fund.    TN/DS/31  
 
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  Award by a WTO adjudicator of legal costs to developing country Members  
 
2.169.   The prop osed new Article 28(b) requires a panel or the Appellate Body to award legal costs 
to a developing country Member prevailing in a dispute  settlement proceeding  against  a developed 
country Member, either as complain ing party or as respond ing party, provided  that the developing 
country Member  was unable to access the DSB Fund due to lack of WTO budget.   
2.170.   In response to questions from the Chair,  one of the co -proponents  explained that an  award  
of legal costs was available only in circumscribed situations, i.e. if a developing country M ember's 
measure had been  found  to be  inconsistent with provisions of the covered agreements, or a 
developed country Member's claim s against a developing country respond ing Member had  failed. 
This is different from the proposed DSB Fund, under which  disbursements would be available to a 
developing country Member  already at the pre -litigation stage. And at the litigation stage, 
disbursements could be made under the DSB Fund  regardless of the outcome of the dispute  
settlement procedures and also in disputes not involving developed country Members . According to 
that co -proponent , although legal costs can be awarded only if a developing country Member is 
unable to access disbursements under the DSB Fund, which are sub ject to the limits set forth in 
paragraph 5 of the proposed new Appendix , those limits sh ould not apply to  the award of  legal costs, 
which would need to be awarded in full.  
2.171.   In response to a question about how a panel could meet its obligation to award lega l costs  
at the end of  panel proceedings if it does not know whether there would be  an appeal  and whether 
its conclusions would stand , one of the co -proponents expressed the view  that the legal costs would 
be award ed by the panel  subject to DSB  adoption of the panel report  (in the event of no appeal) or 
the panel and Appellate Body subject to DSB adoption of their report s (in the event of an appeal). 
The co -proponent explained that the award could be included in the panel's and Appellate Body's 
recommendatio ns under Article 19 of the DSU .  
2.172.   A further question was posed to inquire about  the time -period within which the developed 
country Member would have to  pay for the  legal costs  awarded to a developing country Member. 
One co -proponent  responded that there wou ld seem to be  two options. Either the  panel or Appellate 
Body would  determine such a time -period in their report s on a case -by-case basis . Or Members 
could establish  a fixed ex ante  deadline, such as six months from the adoption of the panel and 
Appellate Body report (s). 
2.173.   One Member stated that the proposal relating to the award of legal costs might be beneficial, 
but that further details needed to be provided to facilitate further evaluation of the proposal. As 
indicated, this could include the question of the time -period within which legal costs would have to 
be paid.  
2.174.   To reflect the explanations provided during Members' discussions on the award of legal costs, 
I have included in the Chair's text below a possible insertion to clarify the operation of the pr oposed 
new Article 28(b).  
2.11.2   Comments from Members on the Chair's text  
2.175.   Several Members doubted that the proposals on Developing Country Interests would improve 
the functioning of the system and that after almost 25 years the system now needs the proposed 
changes. One Member stated that the proposals would in any event need more detailed discussions 
and work to take them further.  
2.176.   More specifically, regarding the venue for consultations, one Member expressed concerns 
that replacing the word "should"  with "shall" in the chapeau of Article 4.10 of the DSU could lead to 
procedural difficulties,  as the hard obligation would  not match with the ambiguous and open -ended 
content of the first subparagraph . The Member cautioned that while this was not intended by the 
proponents, a hard obligation regarding venue preferences could be abused by a developing country 
Member to block the consultations process. The Member considers the textual qualifications 
propos ed by the Chair to be helpful and finds the reference to video -conferencing interesting, but 
ultimately considers them to be still not sufficient to address the main concern related to  the 
mandatory wording of the proposal . Regarding the proposal in the se cond subparagraph concerning 
advance notice of questions, that same Member wonders whether 15 days is the right period, even TN/DS/31  
 
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  taking into account the adjustments included in the Chair's text. The Member also questioned 
whether  this subparagraph should use m andatory language.   
2.177.   One Member also wondered about the rationale behind the proposed amendment to Article 
21.3 of the DSU and was unclear about how the proposed change would benefit the interests of 
developing country Members.  
2.178.   Finally, one Member expresse d reservations about whether the proposed award of legal costs 
is the most appropriate way to increase developing country Members' participation in WTO dispute 
settlement.  
2.11.3   Chair's  text45 
Article 4 – Consultations  
… 
10. During consultations Members should  shall give special attention to the particular 
problems and interests of the developing country Members. This includes inter alia  
the following:  
(a) Developed country Members shall accept the request from a developing 
country Member [regarding the venue for the consultations ] [that 
consultations be held in its capital or, where appropriate, via secure 
videoconferencing] ; and  
(b) In the context of consu ltations involving a measure taken by a 
developing country Member, any questions shall be submitted by the 
complaining party  in writing at least 15 days before the date of holding of the 
consultations , but not before the developing country Member has respo nded 
to the request for consultations in accordance with paragraph 3 . 
… 
Article 21 – Surveillance of Implementation of Recommendations and Rulings  
… 
3. At a DSB meeting held within 30 days11 after the date of adoption of the panel or 
Appellate Body report,  the Member concerned shall inform the DSB of its intentions in 
respect of implementation of the recommendations and rulings of the DSB. If it is 
impracticable to comply immediately with the recommendations and rulings, the 
Member concerned shall have a re asonable period of time in which to do so. The 
reasonable period of time shall be:  
(a) the period of time proposed by the Member concerned, provided that such a 
period is approved by the DSB; or, in the absence of such approval,  
(b) a period of time mutual ly agreed by the parties to the dispute within 45 days after 
the date of adoption of the recommendations and rulings; or, in the absence of such 
agreement,  
(c) a period of time determined through binding arbitration within 90 days after the 
date of adoptio n of the recommendations and rulings.12 In such arbitration, a guideline 
for the arbitrator13 should be that the reasonable period of time to implement panel or 
Appellate Body recommendations should not exceed 15  months from the date of 
                                                
45 Chair Seck 's proposed modifications appear in grey shading and italics, or in the case of proposed 
deletions, just in grey shading . Other proposed changes are explained in Annex 1, section 11.1.  TN/DS/31  
 
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  adoption of a panel  or Appellate Body report. However, that time may be shorter or 
longer, depending upon the particular circumstances.  
In proposing, mutually agreeing on or  determining the reasonable period of 
time, due consideration shall be given to the problems and inter ests of 
developing country Members that are parties to the dispute . 
_______________  
11 If a meeting of the DSB is not scheduled during this period, such a meeting of the 
DSB shall be held for this purpose.  
12 If the parties cannot agree on an arbitrator wi thin ten days after referring the matter 
to arbitration, the arbitrator shall be appointed by the Director -General within ten days, 
after consulting the parties.  
13 The expression "arbitrator" shall be interpreted as referring either to an individual or 
a group.  
… 
 Article 28 (proposed)  
 
28. (a) The DSB shall establish a fund called the DSB Fund to facilitate the 
effective utilisation of the dispute settlement procedures by developing 
country Members. The disbursement from this fund shall be made in 
accordance with the provisions of Appendix [X].  
(b) In a dispute between a developed and developing country Member, 
where a developing country Member is unable to access the DSB Fund due to 
lack of budget, the panel or the Appellate Body shall award legal costs to the 
developing country Member as part of its recommendations under Article 19   
in the case where the developed country Member’s measures have been found 
inconsistent with the covered agreements or a developed Member's claims do 
not succeed in a di spute against a developing country Member.  
… 
APPENDIX [X]  
Disbursements under the DSB Fund shall be made in accordance with the 
following criteria:  
1. The DSB Fund shall be available to all developing country Members where 
they are parties in a dispute in  the WTO as complainants, co -complainants or 
respondents. Disbursements under the DSB Fund shall be made every quarter 
on a first come, first served basis.  
2. The DSB Fund established under Article 28 shall be financed from the 
regular WTO budget. Voluntar y Contributions could also be accepted for this 
fund.  
3. The DSB Fund shall have an initial corpus of 4 million CHF and thereafter 
an annual budget of 2 million CHF. From the initial corpus, 2 million CHF shall 
be put in a buffer fund called the DSB Operat ion Fund. The DSB Operation Fund 
will be utilized only if the DSB Fund has lapsed in any fiscal year. At the end of 
any fiscal year, the money left unspent in the DSB Fund shall be transferred to 
the DSB Operation Fund. In case the amount is less than 2 mi llion CHF in the 
DSB Operation Fund in any fiscal year, the DSB Operation Fund shall be 
recouped in the next fiscal year from the regular budget of the WTO.  TN/DS/31  
 
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  4. Only cost incurred by a developing country Member towards payment of 
the fee and charges to the lawyers/legal firms shall be reimbursed from the 
DSB Fund.  
5. The reimbursement in each dispute shall be limited to the following amounts: 
Stage of the  
Dispute Settlement Process  Maximum Amount  
to be Reimbursed  
Consultations  CHF 28, 261  
Panel  CHF 85, 359  
Appellate Body  CHF 50, 562  
Article 21.3 (c)  CHF 21, 532  
Article 21.5 Panel  CHF 37, 104  
Article 21.5 AB   CHF 34, 221  
Article 22.6 Panel  CHF 22,109  
Total  CHF 279,148  
_______________  
 The adequacy of these amounts shall be reviewed by the Committee on 
Budget, Finance and Administration every two years.  
6. A developing country Member shall be eligible for reimbursement from 
the Fund for a maximum of two disputes per year.  
7. The develop ing country Member concerned shall present a bill for the 
reimbursement of the legal costs after each stage of the dispute settlement 
process. The Secretariat, upon confirmation of the availability of funds, will 
release the payment.  
8. The Committee on Bu dget, Finance and Administration shall oversee the 
functioning of these funds and the General Council shall annually review the 
adequacy and utilization of the funds with a view to improving its 
effectiveness.  
_______________  
  TN/DS/31  
 
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  2.12  Flexibility and Member control and Additional guidance for WTO adjudicative bodies  
2.12.1   Comment s from the Chair  on his statement on Flexibility and Member  control , and  
on Additional guidance for WTO adjudicative bodies  
2.179.   The Chair's statement below on Flexibility and Member control , and Additional guidance for 
WTO adjudicative bodies, was circulated by the Chair on 17 June 2019 and  presented under the 
Chair's own responsibility . It is without prejudice to Members' final positions.  
Flexibility and Member control  
2.180.   The proposals on Flexibility and Member control , which were put forward by two co -
proponents , seek to amend the DSU to provide Members with greater flexibility and control over 
dispute settlement proceedings and their outcomes. These proposals comprise the  following 
components : 
• a proposal for a revised provision on the s uspension of panel proceedings ; 
 
• a proposal for p artial deletion of the content of panel and Appellate Body reports upon 
agreement of the parties ; 
 
• a proposal for p artial adoption of panel a nd Appellate Body reports  by consensus of the DSB  
(which consists of both proposed DSU amendments and a proposed DSB decision);   
 
• a proposal for s uspension of Appellate Body proceedings upon request of the parties ;  
 
• a proposal for an i nterim review stage on appeal ; and  
 
• a proposal for m utually agreed solution s to appeal s. 
 
2.181.   A further component of Flexibility and Member control , which concerns the composition of 
dispute settlement panels, is addressed in the Chair's text on Panel Composit ion. The present Chair's 
statement does not, therefore, include any further reference to this component.    
Additional guidance for WTO adjudicative bodies  
2.182.   One of the two co -proponents on Flexibility and Member control  also put forward a propos al 
for a DSB decision on additional guidance for WTO adjudicative bodies. The proposed additional 
guidance concerns three identified parameters:  
• the use of public international law;  
 
• the interpretative approach to  be followed  in WTO dispute settlement; and  
 
• the meas ure under review in WTO dispute settlement . 
 
2.183.   During the time set aside for focused work on Flexibility and Member control , and Additional 
guidance for WTO adjudicat ive bodies , the DSB -SS could not engage in substantive discussions on 
the above -mentioned pr oposals. This is because one of the co -proponents indicated that it had not 
completed its i nternal consultations on the various proposals. The co-proponents reserved the right 
to come back to this matter at a later stage.  
2.184.   Against this background, I have decided to circulate this Chair's statement rather than a 
Chair's text.  
2.12.2   Chair's  statement  
In convening meetings of the DSB -SS on Flexibility and Member control , and Additional 
guidance for WTO adjudicat ive bodies , I submitted possible questions to the sponsors 
of the se proposal s. As no responses were received to these questions during our focused TN/DS/31  
 
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  work, it is useful for purposes of any follow -up work to record which aspects of the text 
or practical functioning of the p roposal s could be further examined.  
Flexibility and Member control  
With respect to the proposals on Flexibility and Member control , the following aspects 
may benefit from further clarification by the co-proponents:  
• regarding the proposal for partial deleti on of the content of panel or Appellate Body 
reports upon agreement of the parties , questions that arise include:  
(a) when the parties would have to approach the panel regarding what they do not 
wish the panel to include in its report , i.e. during the interim review stage  of 
the panel proceeding  or only after the panel has issued its confidential final 
report to the parties,  
(b) whether the Appellate Body would have to delay the circulation of its report to 
give the parties time to reach agreement on any finding o r rationale that they 
would not like the Appellate Body to include in its report, and if so, whether the 
60/90 -day time -period for completing Appellate Body proceedings provided for 
in Article 17.5 of the DSU would need to be adjusted upwards to accommodat e 
this new procedural step, and by how many days, and  
(c) whether panel and Appellate Body reports circulated to Members would make 
transparent where in the public version of the reports an exclusion has occurred, 
for instance in the same way that is already t he case for any redactions of 
confidential information;  
• regarding the proposal for partial adoption by the DSB of findings contained in panel 
or Appellate Body reports, there are questions around how the proposal would 
operate in practice, including:  
(a) wheth er a separate WTO document would need to be circulated in the DS series 
after a panel or Appellate Body report has been circulated to Members and 
adopted by the DSB, to identify any specific finding or rationale that the DSB 
has decided not to adopt,  
(b) whether the DSB would be required to decide on any non -adoption of a finding 
or rationale in a panel or Appellate Body report during the same DSB meeting 
at which the report is adopted, such that the opportunity for partial adoption 
would be lost if the right were not exercised at the same time as the report is 
adopted, and  
(c) whether it is correct that a Member's request for non -adoption of certain 
findings or rationales could only cover those parts of the panel report that had 
not been appealed and thus had not  in the meantime formed the basis for the 
Appellate Body's consideration of allegations of error;  
• regarding the proposal for the s uspension of Appellate Body proceedings upon 
request of the parties , a question that arises is whether, unlike the proposal fo r a 
time-limited suspension of panel proceedings, an appeal could be suspended 
indefinitely and even permanently, and if so, what indefinite suspension of an appeal 
would mean systemically for the status of the underlying panel report that has been 
circula ted, but not adopted;   
• regarding the proposal for an interim review stage on appeal, similar questions arise 
as in the case of partial deletion of the content of Appellate Body reports, i.e. 
whether the 60/90 -day time -period for completing Appellate Body proceedings 
provided for in Article 17.5 of the DSU would need to be adjusted upwards to 
accommodate this new interim review stage on appeal, and if so, how much TN/DS/31  
 
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  additional time the Appellate Body should be allowed for carrying out  the new stage, 
including any further meeting with the parties; and, lastly,  
• regarding the proposal for  mutually agreed solution s to appeal s, and specifically the 
scenario in which the parties have reached a solution to the appeal (but not a 
solution to the matter ), a question that arises is whether the language proposed in 
Article 17.13 ("if a party … so requests") is intended to allow the adoption of the 
underlying panel report to become optional, which would appear to be a possible 
consequence in cases where no party requests that the DSB adopt the circulated 
panel report.  
Additional guidance for WTO adjudicative bodies  
With respect to the proposed DSB decision on Additional guidance for WTO adjudicat ive 
bodies , the following aspects may benefit from further cla rification by the proponent:  
• whether WTO adjudicators would be required, rather than merely invited, to follow 
this Guidance in addition to the DSU rules, and if so, how this Guidance would fit 
within the analytical framework of the customary rules of inte rpretation referred to 
in Article 3.2 of the DSU; and  
• whether the guidance as presently drafted (in section B concerning the "second 
type" of gap -filling) indicates that, when faced with unresolved ambiguity, a WTO 
adjudicating body engaging in treaty inte rpretation should adopt (i) a plausible 
meaning favouring the responding  party in case the ambiguous provision at issue 
is the basis for a claim and (ii) a plausible meaning favouring the complaining party 
in case the ambiguous provision is the basis for a  defence invoked by the responding 
party; if that is not the intention and an unresolved ambiguity should rather favour 
the responding party in both situations, it could be reviewed whether the relevant 
text of the Guidance could be further clarified.  
____ ___________  
 
  TN/DS/31  
 
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  ANNEX 1: PROPOSED DRAFT LEGAL TEXTS TH AT FORMED THE BASIS OF  
THE FOCUSED WORK CON DUCTED  
Previous Chairs ' draft legal texts were used as basis for focused work.  This was with a view to taking 
into account extensive prior work of the DSB-SS on the issues under negotiation . During the focused 
work conducted, Members submitted new or updated proposals as reflected below.  
 
Unless otherwise indicated, the draft legal texts compiled in Annex 1 contain proposals for 
amendments to the text of  the DSU. References to a rticle numbers  and appendices  in these texts 
are to  those contained in the DSU in force, except where new articles or appendices are proposed.  
 
TABLE OF CONTENTS  
1   MUTUALLY AGREED SOLUTIONS  ................................ ................................ ... 74 
1.1   Relevant parts of JOB/DS/14 r eproduced in RD/TN/DSB/1  ................................ . 74 
2   THIRD -PARTY RIGH TS ................................ ................................ ..................  75 
2.1   Relevant parts of JOB/DS/14 reproduced in RD/TN/DSB/7  ................................ . 75 
2.2   Updated proposal by the Friends of Third Parties (JOB/DS/21/Rev.1)  ..................  77 
2.3   A new and separate proposal on third -party participation in consultations 
(JOB/DS/22/REV.1)  ................................ ................................ ..............................  83 
3   STRICTLY CONFIDE NTIAL INFORMATION  ................................ ....................  85 
3.1   Relevant parts of JOB/DS/14 reproduced in RD/TN/DSB/14  ...............................  85 
3.2   A new and separate proposal on confidential information(JOB/DS/23)  .................  87 
4   SEQUENCING  ................................ ................................ ................................  88 
4.1   Relevant parts of JOB/DS/14 reproduced in RD/TN/DSB/19  ...............................  88 
5   POST -RETALIATION  ................................ ................................ .....................  92 
5.1   Relevant parts of TN/DS/25, JOB(04)/52/Rev.1, and JOB(05)/47/Rev.1, reproduced 
in RD/TN/DSB/26  ................................ ................................ ................................ . 92 
6   TRANSPARENCY AND  AMICUS CURIAE  BRIEFS  ................................ .............  98 
6.1   Relevant parts of T N/DS/25 reproduced in RD/TN/DSB/30  ................................ . 98 
7   TIMEFRAMES  ................................ ................................ ..............................  102  
7.1   Relevant parts of TN/DS/25 and JOB/DS/14, reproduced in RD/TN/DSB/35  ........  102 
8   REMAND  ................................ ................................ ................................ ..... 105  
8.1   Relevant parts of JOB/DS/14 reproduced in RD/TN/DSB/40  ..............................  105 
9   PANEL COMPOSITIO N ................................ ................................ ................  107  
9.1   Relevant parts of JOB/DS/14 reproduced in RD/TN/DSB/45  ..............................  107 
10   EFFECTIVE COMPL IANCE  ................................ ................................ ..........  110  
10.1   Relevant parts of JOB/DS/14 and non -paper  of 18 January 2011 , reproduced in 
RD/TN/DSB/46/Rev.1  ................................ ................................ ..........................  110 
11   DEVELOPING COUN TRY INTERESTS  ................................ .........................  113  
11.1   Relevant parts o f non-paper of 17 July 2012 and non -paper of 14 November 2012, 
reproduced in RD/TN/DSB/46/Rev.1  ................................ ................................ ...... 113 
12   FLEXIBILITY AND  MEMBER CONTROL AND ADDITIONAL GUIDANCE FOR 
WTO ADJUDICATIVE BOD IES ................................ ................................ ..........  116  
12.1   Relevant parts of JOB/DS/14 and TN/DS/25, reproduced in R D/TN/DSB/45  ...... 116 
 
_______________  TN/DS/31  
 
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1  MUTUALLY AGREED SOLU TIONS  
1.1  Relevant part s of JOB/DS/14 reproduced in RD/TN/DSB/146 
PROVISION  PROPOSED TEXT  SOURCE  
Article 3 - General Provisions  
Article 3.6  6. Mutually agreed solutions to matters formally raised under 
the consultation and dispute settlement provisions of the covered 
agreements shall be notified to the DSB and the relevant Councils 
and Committees, where any Member may raise any point relating 
thereto.  
 
Where the parties to a dispute reach a mutuall y agreed 
solution with respect to a matter raised under the dispute 
settlement provisions of the covered agreements, each 
party shall notify the solution to the DSB and relevant 
Councils and Committees. The parties shall submit jointly 
or, if a party so pr efers, separately, the notification in 
writing within 14 days after reaching the solution and shall 
set out in detail the terms of the solution. Any  Member may 
raise any point relating to the solution in the DSB and the 
relevant Councils and Committees.  
 JOB/DS/3, para. 46. 
(See  also JOB/DS/4, 
paras. 77 -79 and 
JOB/DS/2, p. 7.)  
 
 
_______________  
  
                                                
46 The compilation [in document JOB/DS/14] reproduces the most recent draft legal texts presented and 
discussed in the DSU negotiations, where the relevant text ha s evolved since the issuance of the consolidated 
text reproduced in TN/DS/25, Annex A. The compilation supplements the Chairman's summaries of discussions 
issued in the JOB/DS series. It is without prejudice to the position of any participant.  
Unless other wise indicated, proposed deletions to the current DSU text are reflected in strikeout  and 
proposed new text is in bold. Footnotes reproduced from the current DSU carry their current numbering, 
whereas proposed footnotes are identified with letters.  TN/DS/31  
 
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2  THIRD -PARTY RIGHTS  
2.1  Relevant part s of JOB/DS/14 reproduced in RD/TN/DSB/747 
PROVISION  PROPOSED TEXT  SOURCE  
Article 4 - Consultations  
Article 4.11  11. (a) Whenever a Member other than the consulting 
Members considers that it has a substantial trade interest in 
consultations being held pursuant to paragraph 1 of Article  XXII 
of GATT 1994, paragraph  1 of Article  XXII of GATS, or the 
corresponding provisions in  other covered agreements,4 such 
Member may notify the consulting Members and the DSB in 
writing , within 10  days after the date of the circulation of the 
request for consultations under said Article, of its desire to be 
joined in the consultations.  
 
_______________  
4 The corresponding consultation provisions in the 
covered agreements are listed hereunder:  Agreement on 
Agriculture, Article 19;  Agreement on the Application of 
Sanitary and Phytosanitary Measures, paragraph 1 of 
Article 11;  Agreement on Textiles and Cl othing, 
paragraph 4 of Article 8;  Agreement on Technical 
Barriers to Trade, paragraph 1 of Article 14;  Agreement 
on Trade -Related Investment Measures, Article 8;  
Agreement on Implementation of Article VI of GATT 1994, 
paragraph 2 of Article 17;  Agreeme nt on Implementation 
of Article VII of GATT 1994, paragraph 2 of Article 19;  
Agreement on Preshipment Inspection, Article 7;  
Agreement on Rules of Origin, Article 7;  Agreement on 
Import Licensing Procedures, Article 6;  Agreement on 
Subsidies and Counte rvailing Measures, Article 30;  
Agreement on Safeguards, Article 14;  Agreement on 
Trade -Related Aspects of Intellectual Property Rights, 
Article 64.1; and any corresponding consultation 
provisions in Plurilateral Trade Agreements as determined 
by the comp etent bodies of each Agreement and as 
notified to the DSB.  
 
(b) Such Member shall be joined in the consultations, 
provided that the Member to which the request for consultations 
was addressed agrees that the claim of substantial interest is 
well-founded. I n that event they shall so inform the DSB.  
 
The Member to which the request for consultations was 
addressed undertakes to accord sympathetic 
consideration to any representations made by the 
applicant Member concerning its reasons to be joined in 
the consul tations. The applicant Member shall be joined 
in the consultations unless the Member to which the 
request for consultations was addressed notifies the 
applicant Member and the DSB, within 7 days after the 
date of receipt of the request to be joined in the 
consultations, that it considers that the claim of 
substantial trade interest is not well -founded.  
 Enhanced Rights for 
Third Parties – 
Consolidated (Non -
Consensus) Text of G7 
and "Friends"  
(13 November  2012)  
 
 
                                                
47 The c ompilation [in document JOB/DS/14] reproduces the most recent draft legal texts presented and 
discussed in the DSU negotiations, where the relevant text has evolved since the issuance of the consolidated 
text reproduced in TN/DS/25, Annex A. The compilatio n supplements the Chairman's summaries of discussions 
issued in the JOB/DS series. It is without prejudice to the position of any participant.  
Unless otherwise indicated, proposed deletions to the current DSU text are reflected in strikeout  and 
proposed ne w text is in bold. Footnotes reproduced from the current DSU carry their current numbering, 
whereas proposed footnotes are identified with letters.  
 TN/DS/31  
 
- 76 - 
 
  PROVISION  PROPOSED TEXT  SOURCE  
Article 10 – Third Parties  
Article 10.2  2. Any Member having a substantial interest in a matter 
before a panel and having notified its interest to the DSB 
(referred to in this Understanding as a "third party") shall have 
an opportunity to be heard by the panel and to make written 
submissions to the panel. These submissions shall also be given 
to the parties to the dispute and shall be reflected in the panel 
report.  
 
(a) Any Member may participate as a third party before 
a panel by notifying its interest to do so to the DSB and to 
each party to th e dispute no later than 10 days after the 
establishment of the panel. [FRIENDS:  The panel shall 
decide, in consultation with the parties to the dispute, 
whether a Member may participate as a third party if its 
notification of interest is submitted after t his 10 -day 
period.]  Enhanced Rights for 
Third Parties – 
Consolidated (Non -
Consensus) Text of G7 
and "Friends" 
(13 November  2012)  
 
 
 
 
 
 
 
 (b) Each third party has the right to:  
 
(i) be present at the substantive meetings of the 
panel with the parties to the dispute preceding the 
issuance of the interim report to the parties, except 
for portions of such meetings when information 
designated by a Member as strictly confidential in 
accordance with the procedures referred to in 
paragraph 4 of Articl e 18 is discussed;  
 
(ii) make a written submission prior to the first 
substantive meeting;  
 
(iii) make an oral statement to the panel, and 
respond to questions at a session of [G7: the first / 
FRIENDS: each]  substantive meeting set aside for 
that purpose;  and 
 
(iv) respond in writing to questions arising out of 
such a session.  
 Enhanced Rights for 
Third Parties – 
Consolidated (Non -
Consensus) Text of G7 
and "Friends" 
(13 November  2012)  
 
 
Article 10.3  3. Third parties shall receive the submissions of the parties 
to the dispute to the first meeting of the panel.  
 
(a) Each party to the dispute shall make available to 
each third party its written submissions to the panel 
(other than any submission made subsequent to the 
issuance of the inte rim report to the parties) at the time 
such submissions are made, except for information 
designated by a Member as strictly confidential in 
accordance with the procedures referred to in paragraph 
4 of Article  18.b 
 
_______________  
b This provision does not preclude third parties from 
receiving information designated by a Member as 
strictly confidential if this is expressly provided for 
in the specific procedures adopted by the panel in 
accordance with paragraph 4 of Article  18 for th e 
purposes of that dispute.  
 
(b) Each third party shall make available its 
submissions to each party to the dispute and to every 
other third party at the time such submissions are made.  
 
(c) The panel shall reflect the submissions of third 
parties in its r eport.  Enhanced Rights for 
Third Parties – 
Consolidated (Non -
Consensus) Text of G7 
and "Friends" 
(13 November  2012)  
 
 
 TN/DS/31  
 
- 77 - 
 
  2.2  Updated proposal by  the Friends of Third Parties (JOB/DS/21/Rev.1)  
Introduction  
 
This communication is submitted at the request of [the Proponents ] and provides a revised version 
of the proposals contained in documents JOB/DS/6 and JOB/DS/14.  
 
For convenience, the proposals below replace those contained in previous documents. Unless 
otherwise indicated, proposed deletions to the current DSU text are reflected in strikeout  and 
proposed new text is in bold. Following previous practice, footnotes r eproduced from the current 
DSU carry their current numbering, whereas proposed footnotes are identified with letters.  
 
Consultations  
 
The Proponents support the proposed amendment to Article 4.11 of the DSU, contained in document 
JOB/DS/14, which reflects an emerging consensus of the Members by May 2013. For convenience, 
the text is reproduced below:  
 
11. (a) Whenever a Member other than the consulting Members considers 
that it has a substantial trade interest in consultations being held pursuant to 
paragra ph 1 of Article  XXII of GATT 1994, paragraph  1 of Article  XXII of GATS, 
or the corresponding provisions in other covered agreements,4 such Member 
may notify the consulting Members and the DSB in writing , within 10  days 
after the date of the circulation of the request for consultations under said 
Article, of its desire to be joined in the consultations.  
 
_______________  
4 The corresponding consultation provisions in the covered agreements 
are listed hereunder:  Agreement on Agriculture, Article 19;  Agreemen t 
on the Application of Sanitary and Phytosanitary Measures, paragraph 1 
of Article 11; Agreement on Textiles and Clothing, paragraph 4 of Article 
8;  Agreement on Technical Barriers to Trade, paragraph 1 of Article 14;  
Agreement on Trade -Related Investme nt Measures, Article 8;  Agreement 
on Implementation of Article VI of GATT 1994, paragraph 2 of Article 17; 
Agreement on Implementation of Article VII of GATT 1994, paragraph 2 
of Article 19; Agreement on Preshipment Inspection, Article  7; Agreement 
on Rul es of Origin, Article 7; Agreement on Import Licensing Procedures, 
Article 6; Agreement on Subsidies and Countervailing Measures, Article 
30; Agreement on Safeguards, Article  14; Agreement on Trade -Related 
Aspects of Intellectual Property Rights, Article 6 4.1; and any 
corresponding consultation provisions in Plurilateral Trade Agreements as 
determined by the competent bodies of each Agreement and as notified 
to the DSB.  
 
(b) Such Member shall be joined in the consultations, provided that the 
Member to which the request for consultations was addressed agrees that 
the claim of substantial interest is well -founded. In that event they shall 
so inform the DSB.  The Member to which the request for 
consultations was addressed undertakes to accord sympathetic 
consideration to any representations made by the applicant 
Member concerning its reasons to be joined in the consultations. 
The applicant Member shall be joined in the consultatio ns unless 
the Member to which the request for consultations was addressed 
notifies the applicant Member and the DSB, within 7 days after the 
date of receipt of the request to be joined in the consultations, 
that it considers that the claim of substantial t rade interest is not 
well-founded.  
 
(c) If the a request to be joined in the consultations is not accepted, the applicant 
Member shall be free to request consultations under paragraph 1 of Article  XXII or 
paragraph  1 of Article  XXIII of GATT 1994, paragrap h 1 of Article  XXII or paragraph 1 
of Article  XXIII of GATS, or the corresponding provisions in other covered agreements.   TN/DS/31  
 
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Under the current DSU provisions, a Member can request to join consultations if it considers that it 
has a "substantial trade  intere st" on the matter at issue. There is no definition of, nor guidelines to 
determine a "substantial trade interest". It is the Member to which the request for consultations was 
addressed who decides whether the request of the Member wishing to join consultat ions is well -
founded.  
 
Furthermore, to be joined in the consultations, Article 4.11 requires an action  by the Member to 
which the request for consultations was addressed: i.e., to agree that the claim of substantial interest 
is well founded and to notify its decision to the requesting Member. There is no obligation for the 
Member to which the request for c onsultations was addressed to respond to the requests to be joined 
in the consultations nor the obligation to inform the DSB about which requests were accepted or 
denied.  
 
The proposal to amend Article 4.11 of the DSU has essentially two objectives: a) wit hout defining 
"substantial trade interest", to provide responding Members with enough flexibility to accord 
"sympathetic consideration to any representations made" by any Member concerning its reasons to 
join consultations. This language is similar to the one used in current Article 4.2 of the DSU. This 
proposal would not change in any way the discretion that Members to which the request for 
consultations was addressed have in deciding whether to accept or not Members' requests to join 
consultations; b) To increase transparency and efficiency. All requests to join consultations would 
be considered to have been accepted unless denial to join consultations is notified to the requesting 
Members and to the DSB. In other words, action by the Member to which the r equest for 
consultations was addressed is required only if it intends to deny any request to join the 
consultations. Additionally, WTO Members would have information as to whom was accepted or 
rejected to participate in the consultations.  
 
Panel proceeding s 
 
The proposals on Article 10 address three issues:  
 
a) The codification of the 10 -day period after the establishment of a panel to request a 
participation as a third party (Article 10.2(a)).  
b) The third -party rights during panel proceedings (Article 10.2(b) a nd 10.2(c)); and  
c) Clarifications about the submissions that would be made available to third parties.  
 
Article 10.2(a) of the DSU (10 -day period)  
 
The proposed text is reproduced below:  
 
2. Any Member having a substantial interest in a matter before a panel 
and having notified its interest to the DSB (referred to in this 
Understanding as a "third party") shall have an opportunity to be heard 
by the panel and to make written submissions to the panel. These 
submissions shall also be given to the parties t o the dispute and shall be 
reflected in the panel report.  
 
(a) Any Member may participate as a third party before a panel 
by notifying its interest to do so to the DSB and to each party to 
the dispute no later than 10 days after the establishment of the 
panel. Unless agreed otherwise by the parties to the dispute, any 
notification received after the 10 -day period will be considered by 
the panel. The panel shall decide, after consulting with the parties 
to the dispute, to allow a Member to participate as a t hird party if 
its notification of interest is submitted after this 10 -day period, 
provided that doing so would not unduly affect the panel 
proceedings or prejudice the interests of any of the parties to the 
dispute. In accordance with Article 8.3, the acce ptance of a 
request after the 10 -day period from a Member whose citizen has 
been appointed to the panel is subject to the agreement of the 
parties to the dispute.  
 TN/DS/31  
 
- 79 - 
 
  Practice has been consistent in allowing any Member to express its interest in becoming a t hird party 
within 10 days as from the moment of establishment of a Panel. There have been cases in which 
Members have requested to become a third party after this deadline. There is no precise procedure 
to address those cases; in particular, when the dispu ting Parties disagree with respect to whether a 
particular Member could be accepted as a third party.  
 
The proposal seeks to codify the 10 -day period for requesting a participation as a third party. The 
proposal also seeks to establish a procedure to addre ss those situations in which a Member requests 
participation as a third party after the 10 -day deadline.  
 
Article 10.2(b) and 10.2(c) of the DSU (third -party rights)  
 
The proposed text is the following:  
 
b) Each third party has the right to:  
 
(i) be present at the substantive meetings of the panel with the 
parties to the dispute preceding the issuance of the interim report 
to the parties, except for portions of such meetings when 
information designated by a Member as strictly confidential in 
accordanc e with the procedures referred to in paragraph 4 of 
Article  18 is discussed;  
 
(ii) make an oral statement to the panel at a session at the first 
substantive meeting set aside for that purpose;   
 
(iii)  make a written submission after the rebuttal 
submissi ons of the parties to the dispute but prior to the second 
substantive meeting; and  
 
(iv) respond orally and in writing to questions arising out of each 
session set aside for third parties at each substantive meeting 
held prior to the issuance of the interi m report.  
 
c)  The panel may grant third -party rights additional to those 
listed in paragraph (b) only upon agreement by the parties to the 
dispute.  
 
Article 10.1 of the DSU guarantees that the "interest of the parties to a dispute and those of other 
Membe rs under a covered agreement at issue in the dispute shall be fully taken into account during 
the panel process " (emphasis added).  
 
In the view of the Proponents, current rules are inadequate to fully take into account the interests 
of third parties. This  inadequacy is due to the limited access to information; and the impossibility to 
express any views after the first substantive meeting of the Panel with the Parties; particularly, 
views regarding new arguments and counterarguments submitted by the Parties  after that first 
substantive meeting.48 
  
Article 12.1 of the DSU provides the Panel with the discretion to adopt Working Procedures, in 
consultation with the Parties. Such Working Procedures could fully take into account the interests of 
third parties.  P anels have used this discretion in the past to enhance third -party rights. Enhanced 
third-party rights have been adopted on an ad hoc  basis and have varied in scope.49  
 
The proponents are mindful of the need to maintain a distinction between the role of the Parties to 
a dispute and that of the third parties; as well as the need to avoid any interference with the 
efficiency of the Panel's proceedings. In this regard, the Proponents are of the view that a balance 
should be achieved between efficiency of the  proceedings on the one hand; and a meaningful 
participation of third parties on the other hand.  
                                                
48 Normally, third parties only have access to the first written communications of the Parties to the 
dispute.  
49 See for example Canada – Renewable energy  / Feed-in tariff ; US – Cool and US-Cool (21.5) ; 
EC-Bananas , EC-Bananas (21.5)  and EC-Bananas (21.5) II ; EC-Tariff preferences ; EC-Hormones . TN/DS/31  
 
- 80 - 
 
   
Bearing in mind the need for that balance, there has been an evolution in the thinking of the 
Proponents regarding third party rights during the panel proceed ings.  In this regard, the Proponents 
would like to see the following third -party rights reflected in an amendment to the DSU:  
 
a)  The right to receive copies of all submissions and statements by the Parties, including 
responses to panel questions, up to immediately before the issuance of the interim 
report.   
b)  The right to be present for the entirety of all substantive meetings of t he Panel with 
the Parties. Third parties would only participate and respond to questions from the 
Panel during the session that is specifically designated for that purpose.  
c)  The right to respond to questions from the Panel during the proceedings, up to 
immediately before to the issuance of the interim report.  
These rights relate to access to information and are intended to improve transparency. In no way, 
these rights would increase the workload of the disputing Parties and/or the Panel and the WTO 
Secretar iat.  
 
Additionally, Article 10 of the DSU provides that a third party "shall have an opportunity to be heard 
by the panel and to make written submissions to the panel". Unless the Panel exercises its discretion 
to adopt different Working Procedures, Appen dix 3 of the DSU foresees the moments  in which a 
panel may give these opportunities to the third parties.  
 
In practice, both the written communication and the statement of a third party, address the 
arguments raised by the Parties to the dispute in their first written communications. The Proponents 
are of the view that this is inefficient: third parties have the opportunity to comment twice on the 
same set of documents  (i.e., the first written communications of the Parties to the dispute). In this 
manner, third parties miss the opportunity to comment on issues that are discussed after the first 
substantive meeting of the Panel with the Parties.   
 
In the view of the Proponents, this inefficiency can be solved by redistributing the moments  in which 
those sub missions and statements can be delivered. This redistribution would improve the 
participation of third parties. In this regard, the Proponents would like to propose the following:  
 
a) To deliver an oral statement during the first substantive meeting of the  Panel with the 
Parties, during a session dedicated to third parties.  
 
b) To submit a written communication before the second substantive meeting, but after 
the submission of the written rebuttals of the Parties to the dispute.  
 
With this proposal, third  parties would maintain the same two opportunities to express their views. 
However, third parties would have the opportunity to address different aspects of the dispute, at 
different points in time. Because third parties would maintain the same two opportu nities to express 
their views, it is not expected that there will be an increase in the workload of the Parties to the 
dispute, the Panel and the WTO Secretariat team.  
 
Furthermore, the Parties to the dispute would have to comment on the same amount of in terventions 
and they would also have ample opportunities to comment on submissions and statements made by 
third parties (i.e., during the first substantive meeting; in the written rebuttals; during the second 
substantive meeting; and in their responses to the Panel's questions).  
 
Finally, if these proposed amendments are accepted, the Proponents consider that any additional 
right to third parties should be granted by a Panel only upon agreement by the parties to the dispute.  
 
Article 10.3 of the DSU (submi ssions)  
 
The proposed text is the following:  
 
3. Third parties shall receive the submissions of the parties to the 
dispute to the first meeting of the panel.  
 
(a) Each party to the dispute shall make available to each third 
party its written submissions to the panel (other than any TN/DS/31  
 
- 81 - 
 
  submission made subsequent to the issuance of the interim report 
to the parties) at the time such submissions are made, except for 
infor mation designated by a Member as strictly confidential in 
accordance with the procedures referred to in paragraph 4 of 
Article  18.b 
 
_______________  
b This provision does not preclude third parties from receiving 
information designated by a Member as stric tly confidential if this 
is expressly provided for in the specific procedures adopted by the 
panel in accordance with paragraph 4 of Article  18 for the 
purposes of that dispute.  
 
(b) Each third party shall make available its submissions to each 
party to th e dispute and to every other third party at the time such 
submissions are made.  
 
(c) The panel shall reflect the submissions of third parties in its 
report.  
 
The proposal seeks to amend the DSU in order to make it clear that third parties would receive 
written submissions up to the issuance of the interim report. The proposal further clarifies that the 
submissions shall be received at the time such submissions are made, except for information 
designated as strictly confidential pursuant to paragraph 4 of Ar ticle 18. Footnote b provides that 
this provision does not preclude third parties from receiving strictly confidential information if that 
is allowed by the procedures adopted by the panel in accordance with paragraph 4 of Article 18 of 
the DSU.  
  
Appella te Proceedings  
 
The Proponents seek to amend Article 17.4 of the DSU as follows:  
 
4. (a) Only parties to the dispute, not third parties, may appeal a 
panel report.  
 
(b) Each third party and any other Member having notified to the 
Appellate Body, the DSB an d each party to the dispute its interest 
to do so no later than 9  days after the date of circulation of the 
notification of appeal referred to in paragraph 5(a), may 
participate as a third participant in a proceeding before the 
Appellate Body.  
 
(c) Third p arties which have notified the DSB of a substantial interest in 
the matter pursuant to paragraph 2 of Article 10 may make written 
submissions to, and be given an opportunity to be heard by, the Appellate 
Body.  Each third participant shall have an opportunity to be heard 
by and to make a written submission to the Appellate Body.  
 
(d) Each third participant shall give its submission to each party 
to the dispute and to every other third participant. The Appellate 
Body shall reflect the submissions of third participants in its 
report.  
 
In accordance with Article 17.4 of the DSU, third parties which have notified the DSB of a substantial 
interest in the matter pursuant to paragraph 2 of Article 10 may make written submissions to, and 
be given an opportunity to be heard by, the Appellate Body.  Thus, in all phases of the dispute 
settlement mechanism but the appellate proceedings, any Member may notify its interest to be 
joined as a third party.  
The proposal seeks to open the possibility for  Members that have not been third parties in panel 
proceedings to become third participants in appellate proceedings.  
 TN/DS/31  
 
- 82 - 
 
  Compliance Panel Proceedings  
 
The proposal seeks to amend a proposal under paragraph 5 of Article 21 as follows:  
 
5. (c) Where there is disagreement as to the existence or consistency 
with a covered agreement of any measure s taken to comply with the 
recommendations and rulings of the DSB,  such disagreement  dispute  
shall be decided through recourse to [the procedures provided for 
under this  Understanding, ] as modified by this paragraph . these 
dispute settlement procedures, including wherever possible resort to the 
original panel   
 
(i) The procedures under this paragraph do not require the 
complaining party to request consultations under Arti cle 4 before 
requesting the establishment of a panel.  The complaining party 
may request the establishment of a panel without requesting 
consultations.  
 
The proposal intends to clarify what appears to be a general understanding among delegations 
participati ng in the DSU review. That is, if the complaining party decides to request consultations, 
where applicable, third parties would be allowed to participate in such consultations in accordance 
with Article 4 of the DSU.  
 
Post-retaliation proceedings  
 
The Pro ponents supports the text contained in document JOB/DS/14. For convenience, the text is 
reproduced as follows:  
 
 
6. [(a) Following one of  When ] the situation [s] described 
in paragraph [2bis occurs ], the DSB, upon request, shall grant 
authorization to suspend concessions or other obligations within 30 
days of the expiry of the reasonable period of time , unless the DSB 
decides by consensus to reject the request.  However, if the Member 
concerned objec ts to the level of suspension proposed, or claims 
that the principles and procedures set forth in paragraph 3 have not 
been followed where a complaining party has requested 
authorization to suspend concessions or other obligations pursuant 
to paragraph 3(b ) or (c), the matter shall be referred to arbitration. 
Any Member may participate as a third party before the arbitrator 
by notifying its interest to do so to the DSB and to each party to the 
dispute no later than 10 days after the referral of the matter t o 
arbitration. Article 10 shall apply mutatis mutandis . 
 
7. The arbitrator16 acting pursuant to paragraph 6 shall not 
examine the nature of the concessions or other obligations to be 
suspended but shall determine whether the level of such suspension 
is equivalent to the level of nullification or impairment [, and if no 
compensation  has been [granted ][agreed ] or compensation  
has not been granted as agreed, the arbitrator shall, if so 
requested, additionally determine the level of nullification or 
impairment suffered during the reasonable period of time ].  
The arbitrator may also dete rmine if the proposed suspension of 
concessions or other obligations is allowed under the covered 
agreement.  However, if the matter referred to arbitration includes 
a claim that the principles and procedures set forth in paragraph 3 
have not been followed , the arbitrator shall examine that claim.  In 
the event the arbitrator determines that those principles and TN/DS/31  
 
- 83 - 
 
  procedures have not been followed, the complaining party shall 
apply them consistent with paragraph 3.  [However, within [30] 
days after the issuan ce of the decision of the arbitrator, any 
party may appeal any issue of law covered in the decision 
and legal interpretation developed by the arbitrator.  
Paragraphs 1, 4, 5 and 10 to 14 of Article 17 shall apply to 
such appeals mutatis mutandis .  If the A ppellate Body 
reverses or modifies the arbitrator's legal findings, the 
arbitrator shall immediately resume its work to re -examine 
its decision to ensure its consistency with such findings and 
conclusions of the Appellate Body. The arbitrator shall, upon 
request, give the parties to the dispute the opportunity to 
make written and oral representations in respect of the 
consequences of the findings and conclusions of the 
Appellate Body for the decision.]   The parties shall accept the 
arbitrator's decision as final and the parties concerned shall not seek 
a second arbitration.  The DSB shall be informed promptly of the 
decision of the arbitrator and shall upon request, grant authorization 
to suspend concessions or other obligations where the request is 
consiste nt with the decision of the arbitrator, unless the DSB 
decides by consensus to reject the request.  
_______________  
16 The expression "arbitrator" shall be interpreted as referring either 
to an individual or a group or to the members of the original panel 
when serving in the capacity of arbitrator.  
 
The participation of third parties is not addressed under current Article 22 of the DSU. In practice, 
such participation is subject to the discretion of the arbitrator, in accordance with Article 12.1 of the 
DSU. The arbitrator, after lengthy discussions, takes the decision to allow or deny the participation 
of third parties. The participation of third parties in these proceedings is, therefore, uncertain and 
time-consuming. In view of that, the proposal seeks to  grant Members the possibility to participate 
as third party in the proceedings under Article 22.6 of the DSU.  
If Members agree on an appeal proceeding under Article 22.7, third parties should also be allowed 
to participate in such a proceeding. This propo sal is without prejudice to the proponents' views on 
the inclusion of an appeal proceeding under Article 22.7.   
 
2.3  A new  and separate p roposal on third -party participation in consultations 
(JOB/DS/22 /REV.1 ) 
Third -party participation in consultations  
 
Article 4.11 of the DSU:  
11. Whenever a Member other than the consulting Members considers that it has a 
substantial trade interest in consultations being held pursuant to paragraph 1 of Article 
XXII of GATT 1994, paragraph  1 of Article XXI I of GATS, or the corresponding provisions 
in other covered agreements4, such Member may notify the consulting Members and 
the DSB, within 10 days after the date of the circulation of the request for consultations 
under said Article, of its desire to be jo ined in the consultations.   Such Member shall be 
joined in the consultations, provided that the Member to which the request for 
consultations was addressed agrees that the claim of substantial interest is well -
founded.  The Member to which the request for c onsultations was addressed 
shall endeavor to notify the DSB and the Member requesting to join in the 
consultations of its agreement  within a reasonable period of time [X days (for 
ex. 5 days)] prior to the date of consultations.  In that event they shall so  inform 
the DSB.   If the request to be joined in the consultations is not accepted, the applicant 
Member shall be free to request consultations under paragraph 1 of Article XXII or TN/DS/31  
 
- 84 - 
 
  paragraph  1 of Article XXIII of GATT 1994, paragraph 1 of Article XXII or p aragraph 1 
of Article XXIII of GATS, or the corresponding provisions in other covered agreements.  
 
 
_______________  
4 The corresponding consultation provisions in the covered agreements are listed hereunder: 
Agreement on Agriculture, Article 19; Agreement on the Application of Sanitary and 
Phytosanitary Measures, paragraph 1 of Article 11; Agreement on Textiles and Clothing, 
paragraph 4 of Article 8; Agreement on Technical Barriers to Trade, paragraph 1 of Article 14; 
Agreement on Trade -Related Investment M easures, Article 8;  Agreement on Implementation of 
Article VI of GATT 1994, paragraph 2 of Article 17; Agreement on Implementation of Article  VII 
of GATT 1994, paragraph 2 of Article 19; Agreement on Preshipment Inspection, Article 7; 
Agreement on Rules o f Origin, Article 7; Agreement on Import Licensing Procedures, Article 6; 
Agreement on Subsidies and Countervailing Measures, Article 30; Agreement on Safeguards, 
Article 14; Agreement on Trade -Related Aspects of Intellectual Property Rights, Article 64.1;  and 
any corresponding consultation provisions in Plurilateral Trade Agreements as determined by the 
competent bodies of each Agreement and as notified to the DSB.  
 
 
_______________  
 
  TN/DS/31  
 
- 85 - 
 
   
3  STRICTLY CONFIDENTIA L INFORMATION  
3.1  Relevant part s of JOB/DS/14 reproduced in RD/TN/DSB/1450 
PROVISION  PROPOSED TEXT  SOURCE  
Article 18 – Communications with the Panel or Appellate Body  
Article 18.4  4. Where requested by a party to the dispute, the panel shall 
adopt procedures for the treatment of Strictly Confidential 
Information (SCI) after consulting the parties to the dispute. The 
Appellate Body and the arbitrator shall, after consulting the 
parties, adopt procedures that afford the same level of protection 
as provided by the panel and that allow for the designation as SCI 
of newly -submitted information. SCI procedures adopted 
pursuant to this provision shall incorp orate directly or by 
reference the minimum provisions set in Appendix 5.  
 
_______________  
 The expression "arbitrator" shall be interpreted as 
referring either to an individual or a group acting pursuant 
to DSU Articles 22 or 25.  Revised SCI 
proposals in 
DSU – 
May 2012  
 
 
Article 18.5  5. Subject to paragraphs 5 and 6 of Appendix 5, where a party 
or a third party designates information it has submitted as SCI 
through procedures adopted pursuant to Article 18.4, including 
information submitted through the information -gathering 
procedures of Annex V of the Agreement on Subsidies and 
Countervailing Measures (SCM Agreement), the adjudicator, the 
Secretariat, the parties to the dispute, third parties and the 
representative designated under the SCM Agreement, s hall treat 
the information as SCI and in accordance with the requirements 
of the SCI procedures established for this purpose. [Where 
information has been designated as SCI, it shall retain this 
designation until the party making the designation withdraws i t. / 
or / Information obtained in this manner shall be used only for the 
purposes of the proceedings under the DSU].  
 
_______________  
 The expression "adjudicator" refers to panels, 
the Appellate Body and arbitrators acting pursuant to 
DSU Articles 22 or 25.  
 Revised SCI 
proposals in 
DSU – 
May 2012  
 
 
Appendix 3 – Working Procedures  
Paragraph 
3bis 
(proposed)  3bis. Information designated by a Member as strictly confidential 
shall be treated in accordance with the adopted procedures.  
 Revised SCI 
proposals in 
DSU – 
May 2012  
Appendix 5 – Strictly Confidential Information (proposed)  
Paragraph 1  
(proposed)  1. In accordance with Article 18 of this Understanding, the 
following rules shall be incorporated directly or by reference into 
procedures established for the protection of SCI.  
 Revised SCI 
proposals in 
DSU – 
May 2012  
Paragraph 2  
(proposed)  2. In acknowledgement of the intention that procedures 
established for the protection of SCI be used only in exceptional 
circumstances, each party or third party shall act in good faith and 
exercise the utmost restraint in exercising its rights under these 
proce dures.  Revised SCI 
proposals in 
DSU – 
May 2012  
 
 
Paragraph 3  
(proposed)  Definition  
 Revised SCI 
proposals in 
                                                
50 The compilation [in document JOB/DS/14] reproduces the most r ecent draft legal texts presented and 
discussed in the DSU negotiations, where the relevant text has evolved since the issuance of the consolidated 
text reproduced in TN/DS/25, Annex A. The compilation supplements the Chairman's summaries of discussions 
issued in the JOB/DS series. It is without prejudice to the position of any participant.  
Unless otherwise indicated, proposed deletions to the current DSU text are reflected in strikeout  and 
proposed new text is in bold. Footnotes reproduced from the current  DSU carry their current numbering, 
whereas proposed footnotes are identified with letters.  TN/DS/31  
 
- 86 - 
 
  3. "Strictly confidential information" means: specific 
information, including business confidential information, in any 
form, that (i) is secret in the sense that it is no t in the public 
domain;  (ii) has been the subject of reasonable efforts by the 
individual or entity lawfully in control of the information to keep it 
secret;  and (iii) if disclosed would cause or threaten to cause 
serious harm to an essential interest of  that individual or entity.  DSU – 
May 2012  
 
 
Paragraph 4  
(proposed)  Designation of SCI by a Party or Third Party  
 
4. When submitting information, a party or third party may 
designate all or any part of that information as SCI provided that 
such information meets the definition of SCI . Revised SCI 
proposals in 
DSU – 
May 2012  
 
 
Paragraph 5  
(proposed)  Objections by a Party to Designations and Non -Designations of SCI  
 
5. Information designated by a party or third party as SCI shall 
be presumed to be SCI unless a party objects to the designation. 
Upon an objection, the panel shall decide if the information meets 
the defi nition of SCI. If the panel decides that the information does 
not meet the definition, the party or third party submitting it shall 
promptly:  
 
(i) withdraw the designation of the information as SCI; or  
 
(ii) withdraw the information, in which case the pane l, the 
parties and the third parties shall promptly return to 
the party or third party submitting it any physical 
copies and destroy any electronic copie s, and refrain 
from disclosing its content.  
 Revised SCI 
proposals in 
DSU – 
May 2012  
 
 
Paragraph 6  
(proposed)  6. If a party considers that information submitted by another 
party or a third party should have been designated as SCI and it 
objects to such submission without the designation, the panel 
shall decide if the information meets the de finition of SCI. If the 
panel decides that the information meets the definition, the party 
or third party submitting it shall promptly:  
 
(i) designate the information as SCI;  or  
 
(ii) withdraw the information, in which case the panel, the 
parties and the third parties shall promptly return to 
the party or third party submitting it any physical 
copies and destroy any electronic copies, and refrain 
from disclosing  its content.  
 Revised SCI 
proposals in 
DSU – 
May 2012  
 
Proposed DSB decision on strictly confidential information in JOB/DS/14  
 
PROPOSED TEXT  SOURCE  
The DSB takes note of Document [XX] that has been circulated to Members. 
This document is designed to further transparency and to provide a 
reference tool when parties to a dispute are considering requesting the 
adoption by the panel of additional procedures for the protection of Strictly 
Confidential Information (SCI). It contains examples of procedures 
adopted in past disputes for the protection of confide ntial business 
information and other highly confidential information.  
 
In addition, the DSB directs the WTO Secretariat and the Appellate Body 
Secretariat to make publicly available on the WTO website any procedures 
adopted by a panel, the Appellate Body o r an arbitrator for the protection 
of SCI.  
 Revised SCI proposals 
in DSU – May 2012  
 
 
  TN/DS/31  
 
- 87 - 
 
  3.2  A new and separate p roposal on confidential information  (JOB/DS/2 3)51 
 
PROVISION  PROPOSED TEXT  
Article 10.2 of the DSU  (a) ...  
 
(b) Each third party has the right to: 
 
(i)        be present at any substantive meeting of the panel with the parties 
to the dispute preceding the issuance of the interim report to the parties 
[subject to the procedures adopted by the panel in accordance with 
paragraph 3 of Article 18];  
Article 10.3 of the DSU  (a)       Each party to the dispute shall make available to each third party 
its written submissions to the panel (other than any submission made 
subsequent to the issuance of the interim report to the parties) at the time 
such submi ssions are made [subject to the procedures adopted by the 
panel in accordance with paragraph 3 of Article 18]  
Article 18.3 of the DSU  Where requested by a party to the dispute, the panel shall adopt 
procedures for the treatment of confidential information  after consulting 
the parties to the dispute. The Appellate Body and the arbitratora shall, 
after consulting the parties to the dispute, adopt procedures that afford at 
least the same level of protection as provided by the panel.  
  
_______________  
a The ex pression "arbitrator" shall be interpreted as referring either to an 
individual or a group acting pursuant to DSU Articles 22 or 25.  
 
Article 18.4 of the DSU  Where a party or a third party designates information it has submitted as 
confidential through procedures adopted pursuant to Article 18.3, 
including information submitted through the information -gathering 
procedures of Annex V of the Agreement on Subsidies and Countervailing 
Measures (SCM Agreement), the adjudicatorb, the Secre tariat, the parties 
to the dispute, third parties and the representative designated under the 
SCM Agreement, shall treat the information as confidential in accordance 
with the requirements of the procedures established for this 
purpose.   Information  design ated as confidential shall be used only for the 
purposes of the proceedings under the DSU, during which this information 
was submitted. Where information has been designated as confidential, it 
shall retain this designation until the party making the desig nation 
withdraws it.  
  
_______________  
b The expression "adjudicator" refers to panels, the  Appellate Body and 
arbitrators acting pursuant to DSU  Articles 22 or 25.  
 
 
 
_______________  
  
                                                
51 The proposal is based on the relevant parts of the draft legal text contained in JOB/DS/14.  TN/DS/31  
 
- 88 - 
 
  4  SEQUENCING  
4.1  Relevant part s of JOB/DS/14 reproduced in RD/TN/DSB/1952 
PROVISION  PROPOSED TEXT  SOURCE  
Article 21.5  5. (a) After the midpoint of the reasonable period of 
time, or after the DSB meeting referred to in paragraph 3 
where the Member concerned does not have a reasonable 
period of time pursuant to paragraph 3, each party to the 
dispute shall, if requested by another party, accord 
sympathetic consideration to any request for consultations 
in good faith with a view to reaching a mutually satisfactory 
solution regarding the impl ementation of the 
recommendations and rulings of the DSB. The party 
requesting consultations shall notify its request to the DSB 
and the relevant Councils and Committees.  
 
(b) Where the Member concerned considers that it has 
fully complied with the recomme ndations and rulings of the 
DSB it shall so notify the DSB in writing without delay. The 
Member concerned shall include with the notification all 
relevant information including a description of any measure 
it considers achieves compliance, the date of entr y into 
force of the measure, and its text, if any.  
 
(c) Where there is disagreement as to the existence or 
consistency with a covered agreement of any measure s taken to 
comply with the recommendations and rulings of the DSB,  such 
disagreement  dispute  shall be decided through recourse to these 
dispute settlement procedures, including wherever possible resort 
to the original panel.  the [rules and]  procedures [provided for 
under ][of]  this Understanding  [and relevant special or 
additional rules and procedures identified in Appendix 2] , 
as modified by this paragraph. 
 
_______________  
 This is without prejudice to the right of a party to 
initiate new dispute settlement procedures under 
Articles 4, 5, 6 and 25 of this Understanding.  
 
(i) The procedures under this paragraph do not 
require the complaining party to request 
consultations und er Article 4 before requesting the 
establishment of a panel. [FRIENDS: The  
complaining party may request the establishment of 
a panel without requesting consultations.]  
 
(ii) The DSB shall establish a panel, upon request 
by the complaining party, at the fi rst meeting at 
which the request is made, unless it decides by 
consensus not to do so. The same persons shall serve 
on this panel as served on the original panel. If any 
member of the original panel is not available, unless 
the parties to the dispute agree  otherwise, the 
Director -General shall appoint a replacement within 
14 days after the date of establishment of the panel, 
after consulting with the parties.  
 
(iii) The panel shall circulate its report within 90 days 
after the date of referral of the matter  to it its Sequencing Working 
Text – 10 March 2011  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Shaded text in (c)(i):   
Consolidated 
G7/Friends of third 
parties text – 13 
November 2012  
                                                
52 The compilation [in document JOB/DS/14] reproduces the most recent d raft legal texts presented and 
discussed in the DSU negotiations, where the relevant text has evolved since the issuance of the consolidated 
text reproduced in TN/DS/25, Annex A. The compilation supplements the Chairman's summaries of discussions 
issued in  the JOB/DS series. It is without prejudice to the position of any participant.  
Unless otherwise indicated, proposed deletions to the current DSU text are reflected in strikeout  and 
proposed new text is in bold. Footnotes reproduced from the current DSU ca rry their current numbering, 
whereas proposed footnotes are identified with letters.  TN/DS/31  
 
- 89 - 
 
  PROVISION  PROPOSED TEXT  SOURCE  
establishment . Whe nre the panel considers that it cannot 
provide  circulate  its report within this time frame  
timeframe , it shall inform the DSB in writing of the 
reasons for the delay together with an estimate of the 
period within which it will submit  circulate  its report.  
 
(iv) Where the DSB rules that a measure taken to 
comply does not exist or is inconsistent with a 
covered agreement, the Member concerned shall not 
have an additional reasonable period of time to 
comply with the recommendations  and rulings of the 
DSB.  
 
Article 22 – Compensation and the Suspension of Concessions  
Article 
22.2bis 
(proposed)  2bis A complaining party If no satisfactory compensation has 
been agreed within 20 days after the date of expiry of the 
reasonable period of time, any party having invoked the dispute 
settlement procedures  may request authorization from the DSB to 
suspend the application to the Member concerned of concessions 
or other obligations under the covered agreements  only where:  
 
(a) the Member concerned does not inform the DSB, 
within the timeframe of paragraph 3, first  sentence, of 
Article 21, that it intends to comply with the 
recommendations and rulings of the DSB;  
 
(b) the Member concerned does not notify the DSB by the 
expiry of the reasonable period of timej that it has fully 
complied with the recommendations and r ulings of the 
DSB;  or  
 
_______________  
j Or by the date of the DSB meeting referred to in 
paragraph 3 of Article 21 where the Member 
concerned does not have a reasonable period of time 
pursuant to paragraph 3 of Article 21.  
 
(c) the complaining party has had recourse to 
proceedings under paragra ph 5 of Article 21, and the DSB 
has ruled that a measure taken to comply does not exist or 
is inconsistent with a covered agreement. 
 
_______________  
 Recourse to new dispute settlement procedures as 
foreseen in footnote [1] does not constitute recourse 
to proceedings under paragraph 5 of Article 21. 
Recourse to arbitration under Article 25, as foreseen 
in footnote [1], does not constitute recourse to 
proceedings under paragraph 5 of Article 21, unless 
the parties to the arbitration agree otherwise.  
 Sequ encing Working 
Text – 10 March 2011  
Article 22.6  6. (a) When  Following one of  the situation s described in 
paragraph 2 bis occurs , the DSB, upon request, shall grant 
authorization to suspend concessions or other obligations within 
30 days of the expiry of the reasonable period of time , unless the 
DSB decides by consensus to reject the request. However, if the 
Member concerned object s to the level of suspension proposed, or 
claims that the principles and procedures set forth in paragraph 3 
have not been followed where a complaining party has requested 
authorization to suspend concessions or other obligations pursuant 
to paragraph 3(b)  or (c), the matter shall be referred to 
arbitration. [FRIENDS:  Any Member may participate as a 
third party before the arbitrator by notifying its interest to 
do so to the DSB and to each party to the dispute no later 
than 10 days after the referral of th e matter to arbitration. 
Article 10 shall apply mutatis mutandis. ] Sequencing working 
text – 10 March 2011  
 
 
 
 
 
 
Shaded text in (a):   
Consolidated 
G7/Friends of third 
parties text – 13 
November 2012  
 
 TN/DS/31  
 
- 90 - 
 
  PROVISION  PROPOSED TEXT  SOURCE  
 
 
(b) Such arbitration shall be carried out by the original panel , 
if members are available, or by an arbitrator15 appointed by the 
Director -General and . If any member of the original panel  is 
not available, unless the parties agree otherwise, the 
Director -General shall appoint a replacement  [within X 
days ], after consulting with the parties. The arbitration shall 
be completed within 60 days  after the expiry of the reasonable 
period of time  of the appointment of the arbitrator.15  A 
complaining party may not suspend Cconcessions or other 
obligations  shall not be suspended  during the course of the 
arbitration.  
 
 
_______________  
15 The expression "arbitrator" shall be interpreted as 
referring either to an individual or a group.  
  
 
Shaded text in (b):  
Based on commentary in 
Sequencing Working 
Text of 10 March 2011  
 
 
 
Article 22.7  7. The arbitrator16 acting pursuant to paragraph 6 shall not 
examine the nature of the concessions or other obligations to be 
suspended but shall determine whether the level of such 
suspension is equivalent to the level of nullification or impairment 
[, and if no compensatio n has been granted or has not been 
granted as agreed, the arbitrator shall, if so requested, 
additionally determine the level of nullification or 
impairment suffered during the reasonable period of time] . 
The arbitrator may also determine if the proposed s uspension of 
concessions or other obligations is allowed under the covered 
agreement. However, if the matter referred to arbitration includes 
a claim that the principles and procedures set forth in paragraph 
3 have not been followed, the arbitrator shall e xamine that claim. 
In the event the arbitrator determines that those principles and 
procedures have not been followed, the complaining party shall 
apply them consistent with paragraph 3. [However, within [30] 
days after the issuance of the decision of the arbitrator, any 
party may appeal any issue of law covered in the decision 
and legal interpretation developed by the arbitrator. 
Paragraphs 1, [ FRIENDS: 4,]  5 and 10 to 14 of Article 17 
shall apply to such appeals mutatis mutandis . If the 
Appellate Body rev erses or modifies the arbitrator's legal 
findings, the arbitrator shall immediately resume its work 
to re -examine its decision to ensure its consistency with 
such findings and conclusions of the Appellate Body. The 
arbitrator shall, upon request, give the parties to the 
dispute the opportunity to make written and oral 
representations in respect of the consequences of the 
findings and conclusions of the Appellate Body for the 
decision.]   The parties shall accept the arbitrator's decision as 
final and the par ties concerned shall not seek a second arbitration. 
The DSB shall be informed promptly of the decision of the 
arbitrator and shall upon request, grant authorization to suspend 
concessions or other obligations where the request is consistent 
with the decisi on of the arbitrator, unless the DSB decides by 
consensus to reject the request.  
 
_______________  
16 The expression "arbitrator" shall be interpreted as 
referring either to an individual or a group or to the 
members of the original panel when serving in the capacity 
of arbitrator.  
 Sequencing working 
text – 10 March 2011  
 
 
Shaded text:  as 
contained in C hairman's 
text of July 2008 
(JOB(08)/81)  
 
 
 
 
 
 
 
Shaded text:  as 
contained in Chairman's 
text of July 2008 
(JOB(08)/81)  
 
 
Square brackets within 
shaded text:   
Enhanced Rights for 
Third Parties – 
Consolidated (Non -
Consensus) Text of 
G7 and "Friends" 
(13 November  2012)  
…  The authorized Member shall notify the DSB of any 
measure taken pursuant to the authorization granted by 
the DSB and any amendment or termination of the 
measure. The Member shall submit the notification, 
including any relevant information, in writing no la ter than JOB/DS/4, para. 34.  TN/DS/31  
 
- 91 - 
 
  PROVISION  PROPOSED TEXT  SOURCE  
28 days after the date on which the measure, its 
amendment or termination takes effect.  
 
 
_______________  
 
  TN/DS/31  
 
- 92 - 
 
   
5  POST -RETALIATION  
5.1  Relevant parts of TN/DS/25, JOB(04)/52/Rev.1, and JOB(05)/47/Rev.1 , reproduced 
in RD/TN/DSB/2653 
DSU Article 22.8  
 G6 Joint p roposal by  
two co-proponents   
(a) 
 
 
 
Note:  
 
G6 proposal moves 
second sentence of 
Article 22.8 to subpara. 
(e) below   The suspension of 
concessions or other 
obligations shall be 
temporary and shall only 
be applied until such time 
as the measure found to 
be inconsistent with a 
covered agreement has 
been removed, or the 
Member that must 
implement 
recommendations or 
rulings provides a 
solution to the 
nullification or 
impairment of benefits, 
or a m utually satisfactory 
solution is reached.  The suspension of 
concessions or other 
obligations shall be 
temporary and shall only 
be applied until such time 
as the measure found to 
be inconsistent with a 
covered agreement has 
been removed, or the 
Member that must 
implement 
recommendations or 
rulings provides a 
solution to the 
nullification or 
impairment of benefits, 
or a mutually satisfactory 
solution is reached.  In 
accordance with 
paragraph 6 of Article 21, 
the DSB shall continue to 
keep under surveillance 
the implementation of 
adopted 
recommendations or 
rulings, including those 
cases where 
compensation has been 
provided or concessions 
or other obligations have 
been suspended but the 
recommendations to 
bring a measure into 
conformity with the 
covered agreemen ts 
have not been 
implemented.  (a) 
(b) 
 
 
 
Note:  
 
G6: Compliance 
proceedings initiated by 
respondent  
 
 
  Where the DSB has 
authorized the 
suspension of 
concessions or other 
obligations against a 
Member and there is a 
subsequent 
disagreement as to the 
existence or 
consistency with a 
covered agreement of 
a measure taken to 
comply with the 
recommendations and After the DSB has 
authorized a 
complaining party to 
suspend concessions 
or other obligations 
pursuant to paragraph 
6 or 7 (in this 
paragraph referred to 
as the "authorized 
party"), the Member 
concerned may notify 
the DSB that it has 
fully rem oved the 
inconsistency with a (b) 
 
 
 
Note:  
 
Two co-proponents : 
respondent's  
compliance notification  
                                                
53Unless otherwise indicated, proposed deletions to the current DSU text are reflected in strikeout  and 
proposed new text is in bold. Footnotes reproduced from the current DSU carry their current numbering, 
whereas proposed footnotes are identified with letters.  
The marginal notes and the double square bracket are not part of the proponents' proposed texts.  The 
text in double square bracket s was inserted by Chair Seck.  TN/DS/31  
 
- 93 - 
 
  DSU Article 22.8  
 G6 Joint p roposal by  
two co-proponents   
rulings of the DSB, the 
Member concerned 
may have recourse to 
the procedures of 
Article 21.5 as 
modified by this 
paragraph.  In such a 
case:  
 
(i) in its request for 
the establishment of a 
panel, the Member 
concerned shall set 
out the specific 
measures taken  to 
comply, the text of 
these measures, and a 
factual and legal 
description of how 
these measures bring 
the Member into 
compliance with the 
recommendations and 
rulings of the DSB;  
 
(ii) where a 
Member that has been 
authorized to suspend 
concessions or other 
obligations considers 
that a measure taken 
to comply is 
inconsistent with any 
other provision of the 
covered agreements, 
or that the Member 
concerned has 
otherwise not brought 
itself into compliance 
with the 
recommendations and 
rulings  of the DSB, it 
may submit to the 
DSB, no later than [xx 
days] of [[or "after" 
(see document 
TN/DS/2 5)]] the 
establishment of a 
panel, a notice setting 
out any additional 
measure taken to 
comply and a brief 
summary of the legal 
basis for its 
disagreement w ith the 
Member concerned; 
and 
 
(iii) for the purposes 
of these proceedings, 
the word "document" 
in the terms of 
reference of the panel 
under paragraph 1 of covered agreement, or 
that it has provided a 
solution to the 
nullification or 
impairment of 
benefits.  Such 
notification shall be 
accompanied by:  
 
(i) a detailed 
description of any 
measure taken by the 
Member concerned, its 
date of entry into 
force, any text of such 
measure, and a list of 
documents that the 
Member concerned 
considers relevant for 
the assessment of 
implementation;  and  
 
(ii) a detailed 
factual and legal 
explanation of how the 
measure taken by the 
Member concerne d 
has removed any 
inconsistency with, or 
provided a solution to 
any nullification or 
impairment of benefits 
under, the covered 
agreements.  TN/DS/31  
 
- 94 - 
 
  DSU Article 22.8  
 G6 Joint p roposal by  
two co-proponents   
Article 7 comprises the 
request for the 
establishment of the 
panel and the notice 
submitted under th is 
provision.  
(c) 
 
 
 
Note: 
 
G6: 
Conditional withdrawal of 
authorization  
 
Modification of level of 
suspension following 
compliance proceedings  Where, following 
these proceedings, the 
DSB:  
 
 (i) rules that 
the measure taken to 
comply is not 
inconsistent with the 
provisions in question 
or otherwise bri ngs 
the Member concerned 
into compliance with 
the recommendations 
and rulings of the DSB, 
on the request of the 
Member concerned, 
the DSB shall 
withdraw that 
authorization, unless 
it decides by 
consensus not to do 
so; 
 
 (ii) does not 
rule that the Member 
concerned is in 
compliance with the 
recommendations and 
rulings of the DSB, 
notwithstanding 
paragraph 7 of Article 
22, fifth sentence, a 
party to the dispute 
may refer the matter 
to arbitration pursuant 
to paragraph 6 of 
Artic le 22.  The 
Arbitrator may 
determine a new level 
of suspension or make 
findings, as 
appropriate, under 
paragraph 3 of Article 
22.  The Arbitrator 
shall inform the DSB 
promptly of its 
decision.  Upon the 
request of a party to 
the dispute, the DSB 
shall modi fy the 
authorization to 
suspend concessions 
or other obligations 
consistently with the 
decision of the 
Arbitrator, unless the 
DSB decides by Where an authorized 
party so requests, the 
Member concerned 
shall enter into 
consu ltations 
regarding any matter 
associated with the 
notification within 10 
days upon receiving 
such request.  The 
Member concerned 
shall respond 
promptly and to the 
extent reasonably 
possible to any 
request by the 
authorized party for 
further information or 
documents regarding 
the measure it has 
taken.   (c) 
 
 
 
Note:  
 
Two co-proponents : 
Consultations after 
notice of compliance  TN/DS/31  
 
- 95 - 
 
  DSU Article 22.8  
 G6 Joint p roposal by  
two co-proponents   
consensus to reject 
the request.  
(d) 
 
 
 
Note: 
 
G6: 
Continued authorization  The existing 
authorization to 
suspend concessions 
or other obligations 
remains in effect until, 
pursuant to paragraph 
(c), the DSB 
withdraws or modifies 
that authorization.  The DSB shall, upon 
request, withdraw the 
authorized party’s 
authorization to 
suspend concessions 
or other obligations, 
unless the DSB 
decides by consensus 
not to do  so, where:  
 
(i) the authorized 
party does not 
request, within 60 
days of the circulation 
of the notification 
referred to in 
paragraph (b),1 the 
establishment of a 
panel under paragraph 
7 of Article 21; or  
 
(ii) the authorized 
party has requested 
the establishment of a 
panel under paragraph 
7 of Article 21 and, as 
a result of the 
proceedings, the DSB 
rules that the measure 
taken to comply exists 
and has fully removed 
the inconsistency 
with, or has provided a 
solution to the 
nullification or benefit 
under, the covered 
agreements.  
 
__________  
1 The Member 
concerned and the 
authorized party may 
agree to extend this 
60 day period.  Where 
there is disagreement 
as to whether the 
Member concerned 
has satisfied the 
requirements of 
subparagraph (b) (i) 
and (ii), such 
disagreement shall 
also be resolved 
through recourse to 
dispute settlement 
procedures pursuant 
to paragraph 7.   (d) 
 
 
 
Note:  
 
Two co-proponents : 
Conditional withdrawal 
of authorization  
 
Compliance proceedings  
under Art. 21.7 initiated 
by complainant (for 
Article 21.7, see the 
Sequencing proposal in 
document JOB(05)/71/  
Rev.1)  
(e) 
 
Note: 
 
G6: In accordance with 
paragraph 6 of Article 
21, the DSB shall 
continue to keep 
under surveillance the If, as a result of 
recourse to the 
dispute settlement 
procedures provided 
for in paragraph 7 of (e) 
 
Note:  
 
Two co-proponents : TN/DS/31  
 
- 96 - 
 
  DSU Article 22.8  
 G6 Joint p roposal by  
two co-proponents   
Moved from current 
Article 22.8, second 
sentence  
 implementation of 
adopted 
recommendations or 
rulings, including 
those cases where 
compensation has 
been provided or 
concessions or other 
obligations have be en 
suspended but the 
recommendations to 
bring a measure into 
conformity with the 
covered agreements 
have not been 
implemented.   Article 21, the DSB 
does not ru le that the 
Member concerned 
has fully removed the 
inconsistency with, or 
provided a solution to 
the nullification or 
impairment under, the 
covered agreements, 
the complaining party 
in the dispute under 
paragraph 7 of Article 
21 may request that 
the DSB mo dify the 
authorization for the 
suspension of 
concessions or other 
obligations.  However, 
if the Member 
concerned objects to 
the modified level of 
suspension proposed, 
or claims that the 
principles and 
procedures set forth in 
paragraph 3 have not 
been follo wed in the 
request for 
modification, it shall 
have recourse to 
arbitration.  If, in the 
absence of the 
complaining party’s 
request for 
modification, the 
Member concerned 
objects to the level of 
suspension permitted 
under the existing 
authorization, it shal l 
also have recourse to 
arbitration.  The first 
sentence of paragraph 
6(a), the first 
sentence of paragraph 
6(b) as well as 
paragraph 7 of 
Article  22 shall apply 
mutatis mutandis to 
such modification by 
the DSB and such 
arbitration.  Until the 
modification  by the 
DSB, the complaining 
party may only 
suspend concessions 
or other obligations in 
accordance with the 
existing authorization.  Modification of level of 
suspension following 
compliance proceedings  
 
For Article 22.6(a) and 
(b), see the Sequencing 
proposal in document 
JOB(05)/71/  
Rev.1  TN/DS/31  
 
- 97 - 
 
  DSU Article 22.8  
 G6 Joint p roposal by  
two co-proponents   
(f) 
 
Note: 
 
G6: 
Request for 
withdrawal/modification 
of authorization  
 Upon the request of a 
party to the dispute, 
the DSB may at any 
point withdraw or 
modify an 
authorization.    
 
 
_______________  
 
  TN/DS/31  
 
- 98 - 
 
  6  TRANSPARENCY AND AMICUS CURIAE  BRIEFS  
6.1  Relevant part s of TN/DS/25 reproduced in RD/TN/DSB/3054 
I.  PROPOSED AMENDMENTS TO THE DSU  
 
… 
 
Article  13 
Right to Seek Information  
 
… 
 
3. [In exercising the right to seek information and technical advice, the panel shall 
not accept or consider information or technical advice provided by any individual or 
body from whom the panel has not sought it.]  
… 
 
Article  17 
 
Appellate Review  
 
Standing Appellate Body  
 
… 
 
4.(a) ... 
 
… 
 
[(e) The Appellate Body shall consider only the submissions of parties and third 
[participants] , and shall not accept or consider any submission beyond those submitted 
by the parties and the third [ participants] .] 
 
Article  18 
 
Communications with the Panel or Appellate Body  
 
1. There shall be no ex parte  communications with the panel , or Appellate Body , or 
arbitratorc, concerning matters under consideration by the panel , or Appellate Body , or 
arbitrator . 
_______________  
c For the purposes of  this Article, the e xpression "arbitrator" means any 
arbitrator under paragraph 3(c) of Article  21, Article  22, or Article  25.   
 
 
                                                
54 This text is based on the contributions of Members, and also incorporates some proposals by 
[Chairman Saborío Soto] .  It is presented under [the Chairman's]  own responsibility, as a basis for further 
work.  
Proposed amendments to the DSU are shown in the sequ ence of the provisions of the DSU, and only the 
DSU provisions to which changes are proposed are reflected.  Proposed amendments to the DSU are shown 
first, followed by proposed Decisions by the Dispute Settlement Body (DSB).  
  
Proposed deletions to the cu rrent DSU text are reflected in strikeout  text.  Proposed new text is in bold.  
For clarity, proposed footnotes are identified with letters rather than numbers, and would be renumbered as 
appropriate if agreed to.  
   
Single square brackets reflect text requiring further work, decision or confirmation.  In some cases, 
square brackets are used to reflect alternative texts for consideration.  Italicised text in double square brackets 
indicates text on which no convergence  is apparent at this stage.   
 
Proposed textual changes by the Chairman are shaded in grey. Where proposed text by the Chairman 
involves deletions to text proposed by Members, this is not expressly reflected in this text.  TN/DS/31  
 
- 99 - 
 
   
2. [ [Any documentd] [The written submissions ] that a Member provides to a panel, 
the Appellate Body, or an arbitrator [( other than any submission made subsequent to 
the issuance of the interim report to the parties )] shall be public except for information 
designated as strictly  confidential information [ in accordance with the procedures 
referred to in paragraph 3 ].  Written submissions to  the panel or the Appellate Body shall be 
treated as confidential, but shall be made available to the parties to the dispute. ]   
_______________  
[d For the purposes of this paragraph,  the term "document" does not include a 
document concerning an interim re port or that is purely administrative in 
nature.]  
 
Nothing in this Understanding shall preclude s a Member  party to a dispute  from disclosing 
statements of its own positions to the public. [ Members shall treat as confidential information 
submitted by anoth er Member to the panel or the Appellate Body which that Member has 
designated as confidential.   [A Member shall not disclose information designated by 
another Member as strictly confidential information in accordance with the procedures 
referred to in para graph 3 .]  
 
A party [or third party]  to a dispute shall also, upon request of a Member, provide a non -
confidential summary of the information contained in  its written submissions that could be 
disclosed to the public.  [A Member submitting strictly confide ntial information in 
accordance with the procedures referred to in paragraph 3  shall provide a 
non-confidential summary of the information within 15  days of the request of another 
Member].  
 
3. [Where a party designates any information submitted to the panel or the Appellate 
Body as "strictly confidential information", such information shall be treated in 
accordance with the procedures set out in Appendix 5, unless the panel or the Appellate 
Body  decides otherwise after consulting the parties to the dispute.  These procedures 
also apply mutatis mutandis  to strictly confidential information submitted in the course 
of arbitrations pursuant to this Understanding  or in the course of procedures under 
Annex V of the Agreement on Subsidies and Countervailing Measures. ]   
 
[Each substantive meeting with the parties of a panel, the Appellate Body, or an 
arbitrator, and each meeting of a panel or arbitrator with an expert, shall be open for 
the public to observe g, except for any portion dealing with strictly confidential 
information [submitted in accordance with the procedures referred to in paragraph 3. ]] 
_______________  
g The expression "observe" does not require physical presence in the meeting.  
 
… 
 
APPENDIX 3  
 
WORKING PROCEDURES  
 
[2. The panel shall meet in closed session.  The parties to the dispute, and interested parties, 
shall be present at the meetings only when invited by the panel to appear before it. ] 
 
 
[3. The deliberations of the panel [and the documents submitted  written submissions  to it] 
shall be kept confidential.  Nothing in this Understanding shall preclude a party to a dispute 
from disclosing statements of its own positions to the public. [Where a party to a dispute 
submits a confidential version of its written submissions to the panel, it shall als o, upon request 
of a Member, provide a non -confidential summary of the information contained it its submissions 
that could be disclosed to the public .] [Members shall treat as confidential information 
submitted by another Member to the panel or the Appella te Body which that Member has 
designated as confidential . ] ] 
 
… TN/DS/31  
 
- 100 - 
 
   
II.  PROPOSED DSB DECISIONS  
 
PROTECTION OF STRICT LY CONFIDENTIAL INFO RMATION  
 
Decision by the Dispute Settlement Body  
 
The Dispute Settlement Body directs the Secretariat to maintain the documents referenced in 
paragraph 2 of Article  18 in a central location and to make these documents available to the public, 
except for [ strictly ] confidential information [ designated as such by a Member in accordance with 
the procedures referred to in par agraph 3 of Article  18]. 
 
A final report issued by a panel to the parties is an unrestricted document, except for any [strictly ] 
confidential information, as defined in [ paragraph 3 of ] Article  18.  Any interim report considered 
final by operation of the last sentence of paragraph 2 of Article  15 is unrestricted when considered 
final.  
This decision is without prejudice to the practice concerning the date of circulation of the report.q] 
_______________  
q That practice was established on a trial basis an d under that practice a document is deemed to be 
circulated on the "date printed on the WTO document to be circulated with the assurance of the 
Secretariat that the date printed on the document was the date on which this document was 
effectively put in the  pigeon holes of delegations in all three working languages."  (WT/DSB/M/2).  
 
PROPOSED DSB DECISIO N ON PROCEDURES FOR AMICUS CURIAE  SUBMISSION  
IN DISPUTES IN JOB/D S/14 
PROPOSED TEXT  SOURCE  
1. Any person, whether natural or legal ("person"), other than a party 
to the dispute or a third party, wishing to file an amicus curiae submission 
("submission") with a panel, the Appellate Body, or an arbitrator 
("adjudicative body") must apply in writing for leave to file such a 
submission by the deadline established by the adjudicative body. The 
adjudicative body should establish a deadline that (1) falls when the basic 
arguments of the parties to the dispute and third parties are known, (2) 
avoids undue  burden on a party to the dispute, and (3) does not delay the 
dispute. The Secretariat will post on the WTO  website the deadline and a 
description of where the documents relating to the dispute are to be found.  
 
_______________  
 Applying in writing would include transmission by electronic means.  
 
2. The person applying for the leave to file such a submission 
("applicant") shall:  
 
(a) date and sign the application and include the address and other 
contact details of the applicant;  
 
(b) limit the applicatio n to not longer than three pages;  
 
(c) include a description of the applicant, including a statement of 
the membership and legal status of the applicant, the general 
objectives pursued by the applicant, the nature of the activities 
of the applicant, and th e sources of financing of the applicant;  
 
(d) specify the nature of the interest the applicant has in the dispute;  
 
(e) identify the specific issues in the dispute that the applicant 
intends to address in its submission;  
 
(f) explain why it would be desirable, in the interests of achieving a 
resolution of the matter at issue, in accordance with the rights 
and obligations of WTO Members under the DSU and the other 
covered agreements, for the adjudicative body to grant the 
applic ant leave to file a submission, and indicate, in  particular, in 
what way the applicant will make a contribution to the resolution Non-paper of 23 
June 2011  TN/DS/31  
 
- 101 - 
 
  PROPOSED TEXT  SOURCE  
of the dispute that is not likely to be repetitive of what a party to 
the dispute or a third party submits;  and  
 
(g) disclose  whether the applicant has any relationship, direct or 
indirect, with any party to the dispute or any third party, as well 
as whether it has, or will, receive any assistance, financial or 
otherwise, from  party to the dispute, a third party, or any other 
person in the preparation of its application or its submission.  
 
_______________  
 A signature could be electronic.  
 
3. The adjudicative body will give each party to the dispute an adequate 
opportunity to comment on any application filed.  
 
4. The adjudicative body will review and consider each application and 
will, without delay, render a decision whether to grant or deny leave to file 
in whole or in part. The adjudicative body will promptly notify the applicant 
and each party to the dispute and each third party of its decision with 
respect to an application. Where the adjudicative body has granted leave 
to file in part, then the adjudicative body will include in the notification the 
issues in the dispute for which it grants the applicant leave to file a 
submission.  
 
5. The grant of leave to file a submission by the adjudicative body does 
not imply that the adjudicative body will address, in its report, 
the arguments made in the submission.  
 
6. An applicant granted l eave to file a submission must:  
 
(a) file any submission in writing, and sere a copy of the submission 
on each party to the dispute and each third party, by a deadline 
established by the adjudicative body;  
 
(b) date and sign the submission;  
 
(c) be concise and limit the submission to no longer than the number 
of pages to be established by the adjudicative body (as  a general 
guideline, the limit should normally be no more than 15 typed 
pages, including and appendices);  and  
 
(d) limit the submission t o those issues in the dispute for which the 
adjudicative body granted the applicant leave to file a 
submission.  
 
7. The adjudicative body will give each party to the dispute an adequate 
opportunity to comment on any submission filed by an applicant.  
  
 
 
_______________  
 
  TN/DS/31  
 
- 102 - 
 
  7  TIMEFRAMES  
7.1  Relevant pa rts of TN/DS/25 and JOB/DS/14 , reproduced in RD/TN/DSB/35  
Relevant parts of  TN/DS/2555 
Article  4 
 
Consultations  
… 
 
7. If the consultations fail to settle a dispute within 60 [30] days after the date of receipt of 
the request for consultations, the complaining party may request the establishment of a panel.  The 
complaining party may request a panel during the 60 [30]-day period if the consulting parties jointly 
consider that consultations have failed to settle the dispute.  [This 30 -day period shall be 
extended by up to 30  days upon the request of a developing country Member that is a 
consulting party.]  
 
… 
Article  6 
 
Establishment of Panels  
 
1. If the complaining party so requestsa, the DSB shall establish  a panel shall be established 
at the latest  at the DSB meeting following that  at which the request first appears as an item on the 
DSB's agenda, unless at that meetin g the DSB decides by consensus not to establish a panel.5 
_______________  
[a Where the party complained against is a developing country Member, 
the complaining party shall accord sympathetic consideration to a request from 
that Member to postpone the estab lishment of a panel.  Such a request shall be 
made not less than five  days prior to the DSB meeting at which the request for 
panel establishment appears on the DSB's [proposed ] agenda, and the 
complaining party shall respond to such  a request prior to the commencement of 
that DSB meeting.]  
5 [In the event that the DSB decides not to establish a panel or the complaining 
party decides to postpone the establishment of a panel, i] f the complaining party so 
requests, a meeting of the DSB shall be convened for this the purpose of [making a 
subsequent request for panel establishment]  [establishing the panel ] within 
15 days of the request, provided that at least 10  days' advance notice of the meeting is 
given.  
 
… 
[[Article  8bis 
 
Accelerated time -frames for disputes on safeguard measures  
                                                
55 This text is based on the contributions of Members, and also incorporates some proposals by 
[Chairman Saborío Soto] .  It is presented under [the Chairman's]  own responsibility, as a basis for further 
work.  
Proposed amendments to the DSU are shown in the s equence of the provisions of the DSU, and only the 
DSU provisions to which changes are proposed are reflected.  Proposed amendments to the DSU are shown 
first, followed by proposed Decisions by the Dispute Settlement Body (DSB).  
  
Proposed deletions to the  current DSU text are reflected in strikeout  text.  Proposed new text is in bold.  
For clarity, proposed footnotes are identified with letters rather than numbers, and would be renumbered as 
appropriate if agreed to.  
   
Single square brackets reflect text requiring further work, decision or confirmation.  In some cases, 
square brackets are used to reflect alternative texts for consideration.  Italicised text in double square brackets 
indicates text on which no convergence is apparent at this stage.   
 
Propo sed textual changes by the Chairman are shaded in grey. Where proposed text by the Chairman 
involves deletions to text proposed by Members, this is not expressly reflected in this text.  TN/DS/31  
 
- 103 - 
 
   
1. The following accelerated time -frames shall apply to disputes on safeguard 
measures unless otherwise extended by mutual agreement of the parties to the dispute.  
 
2. If the consultations fail to settle a dispute under Arti cle 4 within 30  days of the 
request for consultations, any party to such consultations may refer the matter to the 
Dispute Settlement Body for the immediate establishment of a panel, unless the DSB 
decides by consensus not to establish a panel.  
 
3. The tim e-frames in the Working Procedures of item 12 of Appendix 3 and in 
paragraph 4 of Article  16 shall be halved.  
 
4. The accelerated time -frames in this Article  shall not apply to a dispute if a 
developing country party to that dispute requests the applicatio n of the standard DSU 
time-frames.]]  
 
… 
Article  12 
 
Panel Procedures  
 
… 
 
10. In the context of consultations involving a measure taken by a developing -country Member, 
the parties may agree to extend the periods established in paragraphs 7 and 8 of Article  4.  [ 
[[Where]]  the consulting Member [[is a developed country, it]]  shall ag ree to a request 
for an extension of the periods established in paragraphs 7 and 8 of Article  4 of up to 
30 days and 15  days respectively.]   If, after the relevant period has elapsed, the consulting 
parties cannot agree that the consultations have conclude d, the Chairman of the DSB shall decide, 
after consultation with the parties, whether to extend the relevant period and, if so, for how long.  
In addition, in examining a complaint against a developing country Member, the panel shall accord  
allow  sufficien t time for the developing country Member to prepare and present its argumentation  
[submissions.  In general, the panel should extend the timeframes in Appendix 3 by two 
weeks for the presentation by the developing country Member respondent of its first 
written submission and by one additional week for the presentation of written 
submissions or presentations at each subsequent stage ].  The  provisions of paragraph 1 of  
Article  20 and paragraph 4 of Article  21 are not affected by any action pursuant to this pa ragraph.  
 
… 
Article  16 
 
Adoption of Panel Reports  
 
1. In order to provide sufficient time for the Members to consider panel reports, the reports 
shall not be considered for adoption by the DSB until 20  days after the date they have been 
circulated to Members . 
 
2. Members having objections to a panel report shall give written reasons to explain their 
objections for circulation at least 10  days prior to the DSB meeting at which the panel report will 
be considered . 
 
… 
  TN/DS/31  
 
- 104 - 
 
  APPENDIX 3  
 
WORKING PROCEDURES  
… 
 
12. Proposed timetable for panel work : 
 
 Organisational meeting with the parties    Starting date  
 
(a) Receipt of first written submissions of the parties:  
 
(1) complaining Party:      3-6 weeks  
       14 days 
 
(2) Party complained against:     2-3 3-4 weeks  
… 
 
Relevant part s of JOB/DS/1456 
PROVISION  PROPOSED TEXT  SOURCE/ COMMENTS  
Article 12 – Panel Procedures  
Article 12.10  10. In the context of the consultations involving a measure taken 
by a developing country Member, the parties may agree to extend 
the periods established in paragraphs 7 and 8 of Article 4.  upon the 
request by that developing country Member:  
 
(a) The period to  hold consultations established in 
paragraph 3 of article 4, shall be extended by at 
least 15 days;  
(b) the periods established in paragraphs 7 an 8 of 
Article 4 shall be extended up to [x] days and [y] 
days, respectively.  
If, after the relevant period has  elapsed, the consulting parties 
cannot agree that the consultations have concluded, the Chairman 
of the DSB shall decide, after consultation with the parties, whether 
to extend the relevant period and, if so, for how long. In addition, 
in examining a comp laint against a developing -country Member, the 
panel shall accord  allow  sufficient time  a minimum period of 4 to 
6 weeks  for developing -country Members to prepare and present 
its first written submission. The provisions of paragraph 1 of Article 
20 and par agraph 4 of Article 21 are not affected by any action 
pursuant to this paragraph . Where the panel has acted pursuant 
to this paragraph to extend the time for preparation and 
presentation of the first written submission, the additional 
time taken shall be a dded to the periods referred to in Article 
20 and paragraph 4 of Article 21.  
 Non-Paper of 17 July 
2012 on Suggested 
Textual Changes on 
Timeframes for 
Developing Country 
Members  
 
 
_______________  
 
  
                                                
56 The compilation [in document JOB/DS/14] reproduces the most recent d raft legal texts presented and 
discussed in the DSU negotiations, where the relevant text has evolved since the issuance of the consolidated 
text reproduced in TN/DS/25, Annex A. The compilation supplements the Chairman's summaries of discussions 
issued in  the JOB/DS series. It is without prejudice to the position of any participant.  
Unless otherwise indicated, proposed deletions to the current DSU text are reflected in strikeout  and 
proposed new text is in bold. Footnotes reproduced from the current DSU ca rry their current numbering, 
whereas proposed footnotes are identified with letters.  TN/DS/31  
 
- 105 - 
 
  8  REMAND  
8.1  Relevant part s of JOB/DS/14 reproduced in RD/TN/DSB/4057 
PROVISION  PROPOSED TEXT  SOURCE  
 
Article 17.12  12. (a) The Appellate Body shall address each of the issues raised 
in accordance with paragraph 6 during the appellate proceeding.  
 
(b) Where the Appellate Body finds that there is not a 
sufficient factual basis  to complete the analysis with respect to 
certain issues, it shall provide  [G7: in its report / Other  
proponent : , prior to circulating its report , the parties to the 
dispute with]  a detailed description of the types of findings that 
are required to complete the analysis with respect to those 
issues   [Other  proponent : , including identification of a party 
whose claim or defence is determined to relate to such issues 
and who may refer them to th e original panel according to 
paragraph 1 of Article 17 bis; it shall also provide the parties 
with its tentative findings and  recommendations on the issues 
for which it has been able to complete the analysis. ] 
 Merged 
G7/Other 
propo nent' s 
remand text wit h 
mark -up – 13 
November 2012  
[G7:  (c)  Notwithstanding any issue  in respect of which it 
has found that there was not a sufficient factual basis to 
complete the analysis,  the Appellate Body shall make 
appropriate findings and recommendations in accordance with 
Article 19.]  
[G7:  (d)  Nothing in this paragraph or Article 17 bis affects 
the adoption of panel and Appellate Body reports and the 
implementation of the recommendations and rulings of the 
DSB.]  
Article 17 bis – Referral Procedure (proposed)  
Article 
17bis.1 
(proposed)  17bis.1 Where the Appellate Body has identified certain 
issues according to paragraph 12(b) of Article 17, the party who 
advanced the particular claim or defence to which the 
unresolved issue s relate  [Other  proponent : , as determined and 
identified by the Appellate Body,]  may refer such issue s to the 
original panel.  
Article 
17bis.2 
(proposed)  17bis.2 The referring party shall make the referral  [G7: 
before the adoption of the Appellate Body report / Other  
proponent : by the time the Appellate Body specifies].  It shall do 
so in writing and shall identify the specific issues it seeks to 
have addressed by the panel as well as the relevant paragraphs 
in [G7: the Appellate Body report / Other  proponent : the 
Appellate Body determination according to paragraph 12(b) of 
Article 17]. The referring party shall address the referral to the 
panel and shall notify the DSB thereof.  
Article 
17bis.3 
(proposed)  17bis.3 The panel may examine only those issues with 
respect to which the Appellate Body has expressl y found that 
there is not a sufficient factual basis to complete the analysis, 
and that the referring party has identified in accordance with 
paragraph 2.  
Article 
17bis.4 
(proposed)  17bis.4 The panel shall make such  [G7: findings and 
recommendations / Other proponent : factual findings]  in 
accordance with the description provided by the Appellate Body 
pursuant to paragraph 12 of Article 17, as will assist the DSB in 
making its rulings and recommendations.  
Article 
17bis.5 
(proposed)  17bis.5 [G7: As a general rule,]  the panel shall  [G7: 
circulate its report / Other  proponent : submit its factual findings 
to the Appellate Body and to the parties]  within  [G7: 90 / Other  
                                                
57 The compilation [in document JOB/DS/14] reproduces the most recent draft legal texts presented and 
discussed in the DSU negotiations, where the relevant text has evolved  since the issuance of the consolidated 
text reproduced in TN/DS/25, Annex A. The compilation supplements the Chairman's summaries of discussions 
issued in the JOB/DS series. It is without prejudice to the position of any participant.  
Unless otherwise indi cated, proposed deletions to the current DSU text are reflected in strikeout  and 
proposed new text is in bold. Footnotes reproduced from the current DSU carry their current numbering, 
whereas proposed footnotes are identified with letters.  TN/DS/31  
 
- 106 - 
 
  PROVISION  PROPOSED TEXT  SOURCE  
 
proponent : XX]  days after the date of referral of the matter to 
it. When the panel cons iders that it cannot provide its  [G7: 
report / Other  proponent : findings]  within  [G7: 90 / Other  
proponent : XX]  days, it shall inform the DSB [Other proponent : 
and the Appellate Body]  in writing of the reasons for the delay 
together with an estimate of the period within which it will 
provide its  [G7: report / Other  proponent : findings].  
Article 
17bis.6 
(proposed)  17bis.6 [G7: If a party appeals the report of the panel, 
Article 17 and  Article 17 bis apply to Appellate Body proceedings 
and the adoption of the Appellate Body report.]  
 
[Other  proponent : The Appellate Body shall complete  its analysis 
upon receiving the factual findings by the panel on the referred 
issues, and circulate its repor t within [XX] days .] 
 
 
_______________  
 
  TN/DS/31  
 
- 107 - 
 
  9  PANEL COMPOSITION  
9.1  Relevant part s of JOB/DS/14 reproduced in RD/TN/DSB/4558  
PROVISION  PROPOSED TEXT  SOURCE  
Article 8 – Composition of Panels  
Article 8.2  2. Panel members  Panelists  should be selected with a view to 
ensuring the their  independence of the members  and that the 
panel as a whole contains expertise to examine the kind of 
matter at issue in the dispute , a sufficiently diverse background 
and a wide spectrum of relevant  experience.  
 JOB/DS/7, paras. 
22-23. 
 
Proposed DSB D ecision on  Panel composition  
 
PROPOSED TEXT  SOURCE  
The Dispute Settlement Body (DSB),  
 
[Desiring to enhance the process by which panels are composed under 
Article 8 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU);  
 
Resolved to expedite this process and enhance its 
[transparency ][predictability] ; 
 
[Recalling the need to compose  panels of well -qualified individuals and to 
ensure their independence; ] ] 
 
Hereby decides as follows:  
 
1. This Decision establishes [rules ] [procedures] [working practices]  
on the composition of panels pursuant to Article 8 of the DSU for the 
parties, the Director -General and the Secretariat.  
 
2. [The DSB may at any time review or terminate  these rules, as 
necessary [, in order to further improve them in the light of the experience 
gained, ] by revising the present Decision or adopting other Decisions .] 
 
3. The following procedure shall apply [where a panel has been 
established and needs to be composed ][to the composition of panels] , 
without prejudice to the parties' [right ][ability]  to agree on any or all 
panelists or on an alternative procedure for selecting them . 
 
4. After the establishment of the panel, the Secretariat shall ask each 
party to indicate any particular selection criteria (such as qualifications or 
experienc e) it wishes the panelists to [have ][satisfy] . The Secretariat shall 
present to the parties a single list of persons [whom the Secretariat has 
been able to identify][ known to the Secretariat ] who meet [at least one ] 
[any  of] the requested criterias, to the  utmost extent possible. Unless the 
parties agree otherwise, Tthis list should normally comprise the names of 
between 12 and 20 persons, together with their [if possible updated] 
curricula vitae , unless the parties agree otherwise . 
 
_______________  
s Where  the parties request several or different criteria, the list 
should comprise persons who meet one or more of these criteria.  
 Proposal as in 
TN/DS/25, as well 
as comments 
received from 
delegations during 
discussions – May 
2011  
                                                
58 The compilatio n [in document JOB/DS/14] reproduces the most recent draft legal texts presented and 
discussed in the DSU negotiations, where the relevant text has evolved since the issuance of the consolidated 
text reproduced in TN/DS/25, Annex A. The compilation supplem ents the Chairman's summaries of discussions 
issued in the JOB/DS series. It is without prejudice to the position of any participant.  
Unless otherwise indicated, proposed deletions to the current DSU text are reflected in strikeout  and 
proposed new text is  in bold. Footnotes reproduced from the current DSU carry their current numbering, 
whereas proposed footnotes are identified with letters.  TN/DS/31  
 
- 108 - 
 
  PROPOSED TEXT  SOURCE  
5. Each partyt may reject one of those nominations where the list 
comprises no more than 10 persons, two where it comprises between 11 
and 20 persons and three where it comprises more than 20 persons. The 
parties may otherwise object to the Secretariat's nominations to the list 
only in the event of a conflict of interest as referred to in the Rules of 
Conduct. In such cases, the party concerned must substantiate its reasons 
and provide the corresponding evidence. The Secretariat shall not take into 
account objections of other nature. Each party shall then provide to the 
Secretariat a ranking in order of preference of all the proposed names, 
except of the rejected nominations and those withdrawn from the list based 
on the Secretariat's decision that there is a conflict of interest. [Paragraph 
3 of Article 8 of the DSU remains unaffected.]  
 
_______________  
t Where there are multiple complainants and a single panel is 
established under paragraph 1 of Article 9 or several panels are 
composed of the same persons under paragraph 3 of Article 9, the 
complainants shall exercise the right of rejection by dividing th e 
available rejections among themselves, unless the complainants 
agree otherwise.  
 
6. The Secretariat shall ascertain which nominations received the 
highestu combined preference by adding the results of the ranking of the 
respondent and that of the complai nant.v  The Secretariat shall then verify 
whether [these persons are available and whether the parties agree on the 
resulting panel composition as well as on the member of the panel who 
shall serve as chairman ] [the parties agree on the resulting panel 
composition as well as on the member of the panel who shall serve as 
chairman and whether these persons are available] . 
 
_______________  
u Among nominations with equal combined preference, the person(s) 
with the lowest degree of divergence between the parties ' rankings 
shall receive priority. Where this is the case for more nominations 
than are needed to compose the panel, the Secretariat shall draw by 
lot the needed number of persons from among those nominations.  
v Where there are multiple complainants and a single panel is 
established under paragraph 1 of Article 9 or several panels are 
composed of the same persons under paragraph 3 of Article 9, the 
Secretariat shall, before proceeding to this addition, merge the 
results of the rankings of all complainants i nto a single ranking by 
calculating an average for each nomination.  
 
7. [In exceptional circumstances, and at the joint request of the 
parties , or where an insufficient number of persons are available , the 
Secretariat shall may present an expanded, second list of nominations, in 
order to repeat the steps set out in paragraphs 5 and 6.]  
 
  
8. In accordance with paragraph 10 of Article 8 of the DSU, [when a 
dispute is between a developing country Member and a developed country 
Member and the developing country Member so request sed, at the moment 
of indicating criteria under paragraph 4 , [this Decision shall be applyied in 
such a manner that at least one panelist shall be from a developing country 
Member. To this end,] as necessary, the Secretariat shall select the 
developing country citizen obtaining the highest combined preference shall 
be chosen .w 
 
_______________  
w Among nominations with equal combined preference, the person(s) 
with the lowest degree of divergence between the parties'  rankings 
shall receive priority. Where this is the case for more nominations 
than are needed to compose the panel, the Secretariat shall draw by 
lot the needed number of persons from among those nominations.  
 
9. Where the parties do not agree on the panel 's composition within 20 
days after the date of the establishment of a panel and either party requests  TN/DS/31  
 
- 109 - 
 
  PROPOSED TEXT  SOURCE  
that the Director -General compose the panel in accordance with paragraph 
7 of Article 8 of the DSU, the Director -General shall determine the 
composition of the panel by appointing, [if possible][to the utmost extent 
possible] from the nominations proposed by the Secretariat,  [to the extent 
they are available,] except the nominations rejected in accordance with 
paragraph 5, the panelists whom the Director -General considers most 
appropriate, after consulting with the parties to the dispute.  
 
 
 
_______________  
 
  TN/DS/31  
 
- 110 - 
 
  10  EFFECTIVE COMPLIANCE  
10.1  Relevant par ts of JOB/DS/14 and non -paper  of 18 January 2011 , reproduced in 
RD/TN/DSB/46/Rev.159 
Relevant part s of JOB/DS/14  
 
PROVISION  PROPOSED TEXT  SOURCE  
Article 22 – Compensation and the Suspension of Concessions  
Article 
22.3bis 
(proposed)  3bis Notwithstanding the provisions contained in 
paragraph 3, if the complaining party is a developing 
country, such Member shall have the right to seek 
authorization to suspend concessions or other obligations in 
any sector(s) under any covered agreement(s).  
 Non-Paper – Textual 
Suggestions for 
Developing 
Countries' Issues in 
DSB-SS - 
14 November 2012  
Article 22.4  
 4. The level of the suspension of concessions or other 
obligations authorized by the DSB shall be equivalent to the level of 
the nullification or impairment. If the case is one brought by a 
developing country Member, the level of nullification and 
impairme nt shall also include an estimate of the impact of 
the inconsistent measure on the economy of such Member.  
 Non-Paper – Textual 
Suggestions for 
Developing 
Countries' Issues in 
DSB-SS - 
14 November 2012  
Article 22.6  6. (a) When  Following one of  the situation s described in 
paragraph 2 bis occurs , the DSB, upon request, shall grant 
authorization to suspend concessions or other obligations within 30 
days of the expiry of the reasonable period of time , unless the DSB 
decides by consensus to reject th e request. However, if the Member 
concerned objects to the level of suspension proposed, or claims 
that the principles and procedures set forth in paragraph 3 have not 
been followed where a complaining party has requested 
authorization to suspend concessio ns or other obligations pursuant 
to paragraph 3(b) or (c), the matter shall be referred to arbitration. 
[FRIENDS:  Any Member may participate as a third party 
before the arbitrator by notifying its interest to do so to the 
DSB and to each party to the disp ute no later than 10 days 
after the referral of the matter to arbitration. Article 10 shall 
apply mutatis mutandis. ] 
 
(b) Such arbitration shall be carried out by the original panel , if 
members are available, or by an arbitrator15 appointed by the 
Director -General and . If any member of the original panel is 
not available, unless the parties agree otherwise, the 
Director -General shall appoint a replacement  [within X 
days ], after consulting with the parties. The arbitration shall 
be completed within 60 days  after the expiry of the reasonable 
period of time  of the appointment of the arbitrator.15  A 
complaining party may not suspend Cconcessions or other 
obligations  shall not be suspended  during the course of the 
arbitration.  
 
_______________  
15 The expression "arbitrator" shall be interpreted as 
referring either to an individual or a group.  
 
 Sequencing working 
text – 10 March 
2011  
 
 
 
 
 
 
Shaded text in (a):   
Consolidated 
G7/Friends of third 
parties text – 13 
November 2012  
 
 
 
 
 
 
(b) … Where a developing country Member has been 
authorized to suspend concessions or other obligations 
under Article 22.6 (a), the DSB shall, upon request by such Non-Paper – Textual 
Suggestions for 
Developing 
                                                
59 The compilation [in document JOB/DS/14] reproduces the most recent draft legal texts presented and 
discussed in the  DSU negotiations, where the relevant text has evolved since the issuance of the consolidated 
text reproduced in TN/DS/25, Annex A. The compilation supplements the Chairman's summaries of discussions 
issued in the JOB/DS series. It is without prejudice to the position of any participant.  
Unless otherwise indicated, proposed deletions to the current DSU text are reflected in strikeout  and 
proposed new text is in bold. Footnotes reproduced from the current DSU carry their current numbering, 
whereas proposed f ootnotes are identified with letters.  TN/DS/31  
 
- 111 - 
 
  PROVISION  PROPOSED TEXT  SOURCE  
Member, authorize other Member(s) to suspend concessions 
or other obligations on behalf of the req uesting Member 
unless the DSB decides by consensus to reject the request . 
The authorization established in this Article shall be the 
same as the initial authorization granted under Article 22.6 
(a). 
 Countries ' Issues in 
DSB-SS - 
14 November 2012  
Article 22.7  7. The arbitrator16 acting pursuant to paragraph 6 shall not 
examine the nature of the concessions or other obligations to be 
suspended but shall determine whether the level of such suspension 
is equivalent to the level of nullification or impairment [, and if no 
compensatio n has been granted or has not been granted as 
agreed, the arbitrator shall, if so requested, additionally 
determine the level of nullification or impairment suffered 
during the reasonable period of time] . The arbitrator may also 
determine if the proposed s uspension of concessions or other 
obligations is allowed under the covered agreement. However, if the 
matter referred to arbitration includes a claim that the principles 
and procedures set forth in paragraph 3 have not been followed, the 
arbitrator shall e xamine that claim. In the event the arbitrator 
determines that those principles and procedures have not been 
followed, the complaining party shall apply them consistent with 
paragraph 3. [However, within [30] days after the issuance of 
the decision of the arbitrator, any party may appeal any issue 
of law covered in the decision and legal interpretation 
developed by the arbitrator. Paragraphs 1, [ FRIENDS: 4,]  5 
and 10 to 14 of Article 17 shall apply to such appeals mutatis 
mutandis . If the Appellate Body rev erses or modifies the 
arbitrator's legal findings, the arbitrator shall immediately 
resume its work to re -examine its decision to ensure its 
consistency with such findings and conclusions of the 
Appellate Body. The arbitrator shall, upon request, give the 
parties to the dispute the opportunity to make written and 
oral representations in respect of the consequences of the 
findings and conclusions of the Appellate Body for the 
decision.]   The parties shall accept the arbitrator's decision as final 
and the par ties concerned shall not seek a second arbitration. The 
DSB shall be informed promptly of the decision of the arbitrator and 
shall upon request, grant authorization to suspend concessions or 
other obligations where the request is consistent with the decisi on 
of the arbitrator, unless the DSB decides by consensus to reject the 
request.  
 
_______________  
16 The expression "arbitrator" shall be interpreted as 
referring either to an individual or a group or to the members 
of the original panel when serving in th e capacity of 
arbitrator.  
 Sequencing working 
text – 10 March 
2011  
 
Shaded text:  as 
contained in 
Chairman's text of July 
2008 (JOB(08)/81)  
 
 
 
 
 
 
 
Shaded text:  as 
contained in 
Chairman's text of July 
2008 (JOB(08)/81)  
 
Square brackets within 
shaded text:  
Enhanced Rights for 
Third Parties – 
Consolidated (Non -
Consensus) Text of 
G7 and "Friends" 
(13 November  2012)  
Article 
22.8bis 
(proposed)  8bis If a Member fails to comply with the rulings and 
recommendations of the DSB at the expiry of the reasonable 
period of time established under Article 21.3, the DSB shall, 
at the request of the complaining party, apply the following 
temporary administrative  measures to the Member that has 
failed to comply with the rulings and recommendations of 
the DSB, unless the DSB decides by consensus not to do so:  
 
1. Representatives of such Member shall not be 
nominated to preside over WTO bodies.  
 
2. Documentation will not be posted to such Member's 
delegation in Geneva nor to its Capital. The access to the 
WTO Members' website will be discontinued.  
 
3. The Secretariat shall report about the implementation 
of these administrative measures in every meet ing of the 
DSB and the General Council.  Non-Paper – Textual 
Suggestions for 
Developing 
Countries' Issues in 
DSB SS - 
14 November 2012  TN/DS/31  
 
- 112 - 
 
  PROVISION  PROPOSED TEXT  SOURCE  
 
4. At the beginning of each year, the Director -General 
shall notify in writing the Minister of such Member of the 
applicable administrative measures, and emphasise the 
importance of full implementation of the  ruling s and 
recommendations of the DSB . 
 
5. The Director -General shall report to each Ministerial 
conference about the administrative measures already 
applied to such Member. Such Member shall inform the 
Ministerial conference of its intention and time frame for  full 
implementation of the rulings and recommendations of the 
DSB.  
 
 
Relevant part of non -paper of 18 January 2011  
 
PROVISION  PROPOSED TEXT* SOURCE/COMMENTS  
Article 22 – Compensation and the Suspension of Concessions  
Article 22.7  The arbitrator16 acting pursuant to paragraph 6 shall not examine 
the nature of the concessions or other obligations to be suspended 
but shall determine whether the level of such suspension is 
equivalent to the level of nullification or impairment [suffered 
from the day af ter RPT expires.  A period of reference for 
the arbitrator shall be the year in which the reasonable 
period of time ends, unless circumstances require 
otherwise.]  … 
 
_______________  
16 The expression "arbitrator" shall be interpreted as 
referring either to an individual or a group or to the 
members of the original panel when serving in the capacity 
of arbitrator.  
 Non-Paper of 18 
January 2011, Revised 
Textual Contribution 
to the Dispute  
Settlement 
Understanding Review 
Negotiations  
 
 
_______________  
 
 TN/DS/31  
 
- 113 - 
 
  11  DEVELOPING COUNTRY I NTERESTS60 
11.1  Relevant par ts of non -paper of 17 July 2012 and non -paper of 14 November 2012 , 
reproduced in RD/TN/DSB/46/Rev.1  
PROVISION  PROPOSED TEXT  SOURCE  
Article 4 – Consultations  
Article 4.10  10. During consultations Members should  shall  give special 
attention to the particular problems and interests of the developing 
country Members. This includes inter alia  the following:  
 
(a) Developed country Members shall accept the request 
from a developing country Member regarding the 
venue for the consultations; and  
 
(b) In the context of consultations involving a measure 
taken by a developing country member, any 
questions shall be submitted in writing at l east 15 
days before the date of holding of the consultations.  
 Non-Paper of 17 
July 2012 on 
Suggested Textual 
Changes on 
Timeframes for 
Developing Country 
Members  
Article 21 – Surveillance of Implementation of Recommendations and Rulings  
Article 21.3  3. At a DSB meeting held within 30 days11 after the date of 
adoption of the panel or Appellate Body report, the Member 
concerned shall inform the DSB of its intentions in respect of 
implementation of the recommendations and rulings of the DSB. If 
it is impracticable to comply immediately with the  recommendations 
and rulings, the Member concerned shall have a reasonable period 
of time in which to do so. The reasonable period of time shall be:  
 
(a) the period of time proposed by the Member concerned, 
provided that such a period is approved by the DSB; or, 
in the absence of such approval,  
 
(b) a period of time mutually agreed by the parties to the 
dispute within 45 days after the date of adoption of the 
recommendations and rulings; or, in the absence of such 
agreement,  
 
(c) a period of time determin ed through binding arbitration 
within 90 days after the date of adoption of the 
recommendations and rulings.12 In such arbitration, a 
guideline for the arbitrator13 should be that the 
reasonable period of time to implement panel or 
Appellate Body recommend ations should not exceed 
15 months from the date of adoption of a panel or 
Appellate Body report. However, that time may be 
shorter or longer, depending upon the particular 
circumstances.  
 
In determining the reasonable period of time, due 
consideration sha ll be given to the problems and interested 
of developing country members.  
 
_______________  
11 If a meeting of the DSB is not scheduled during this 
period, such a meeting of the DSB shall be held for this 
purpose.  Non-Paper of 17 
July 2012 on 
Suggested Textual 
Changes on 
Timeframes for 
Developing Country 
Members  
                                                
60 The compilation [in document JOB/DS/14] reproduces the most recent draft legal texts presented and 
discussed in the DSU negotiations, where the relevant text has evolved since the issuance of the consolidated 
text re produced in TN/DS/25, Annex A. The compilation supplements the Chairman's summaries of discussions 
issued in the JOB/DS series. It is without prejudice to the position of any participant.  
Unless otherwise indicated, proposed deletions to the current DSU te xt are reflected in strikeout  and 
proposed new text is in bold. Footnotes reproduced from the current DSU carry their current numbering, 
whereas proposed footnotes are identified with letters.  TN/DS/31  
 
- 114 - 
 
  PROVISION  PROPOSED TEXT  SOURCE  
12 If the parties cannot agree on an arbitr ator within ten 
days after referring the matter to arbitration, the arbitrator 
shall be appointed by the Director -General within ten days, 
after consulting the parties.  
13 The expression "arbitrator" shall be interpreted as 
referring either to an individua l or a group.  
Article 28 ( proposed ) 
Article 28 
(proposed)  
 
 
 
 
 
 
 
 
 
 
 
 
 28. (a) The DSB shall establish a fund called the DSB 
Fund to facilitate the effective utilisation of the dispute 
settlement procedures by developing country Members. The 
disbursement from this fund shall be made in accordance 
with the provisions of Appendix [X].  
 
(b) In a dispute between a developed and developing 
country Member, where a developing country Member is 
unable to access the DSB Fund due to lack of budget, 
the panel or the Appellate Body shall award legal costs to the 
developing country Member in the case where the developed 
country Member’s measures have been found inc onsistent 
with the covered agreements or a developed Member's 
claims do not succeed in a dispute against a developing 
country Member.  Non-Paper – Textual 
Suggestions for 
Developing 
Countries' Issues in 
DSB-SS - 
14 November 2012  
Appendix [X] (proposed)  
Paragraph 1  
(proposed)  Disbursements under the DSB Fund shall be made in 
accordance with the following criteria:  
 
1. The DSB Fund shall be available to all developing 
country Members where they are parties in a dispute in the 
WTO as complainants, co -complainants or respondents.  
 Non-Paper – Textual 
Suggestions for 
Developing 
Countries' Issues in 
DSB-SS - 
14 November 2012  
 
Paragraph 2  
(proposed)  2. The DSB Fund established under Article 28 shall be 
financed from the regular WTO budget . Voluntary 
Contributions could also be accepted for this fund.  
 
Paragraph 3  
(proposed)  3. The DSB Fund shall have an initial corpus of 4 million 
CHF and thereafter an annual budget of 2 million CHF. From 
the initial corpus, 2 million CHF shall be put in a buffer fund 
called the DSB Operation Fund. The DSB Operation Fund will 
be utilized only if the DSB Fund has lapsed in any fiscal year. 
At the end of any fiscal year, the money left unspent in the 
DSB Fund shall be transferred to the DSB Operation Fund . In 
case the amount is less than 2 million CHF in the DSB 
Operation Fund in any fiscal year, the DSB Operation Fund 
shall be recouped in the next fiscal year from the regular 
budget of the WTO.  
 
Paragraph 4  
(proposed)  4. Only cost incurred by a developing country Member 
towards payment of the fee and charges to the lawyers/legal 
firms shall be reimbursed from the DSB Fund.  
 
Paragraph 5  
(proposed)  5. The reimbursement in each dispute shall be limited to 
the following amounts: 
 
Stage of the  
Dispute Settlement Process  Maximum Amount  
to be Reimbursed  
Consultations  CHF 28, 261  
Panel  CHF 85, 359  
Appellate Body  CHF 50, 562  
Article 21.3 (c)  CHF 21, 532  
Article 21.5 Panel  CHF 37, 104  
Article 21.5 AB   CHF 34, 221  
Article 22.6 Panel  CHF 22,109  
Total  CHF 279,148  
 TN/DS/31  
 
- 115 - 
 
  PROVISION  PROPOSED TEXT  SOURCE  
_______________  
 The adequacy of these amounts shall be reviewed by 
the Committee on Budget, Finance and Administration 
every two years.  
 
Paragraph 6  
(proposed)  6. A developing country Member shall be eligible for 
reimbursement from the Fund for a maximum of two disputes 
per year.  
 
Paragraph 7  
(proposed)  7. The developing country Member concerned shall 
present a bill for the reimbursement of the legal costs after 
each stage of the dispute settlement process. The 
Secretariat, upon confirmation of the availability  of funds, 
will release the payment.  
 
Paragraph 8  
(proposed)  8. The Committee on Budget, Finance and Administration 
shall oversee the functioning of these funds and the General 
Council shall annually review the adequacy and utilization of 
the funds with a view to improving its effectiveness.  
 
 
 
_______________  
 
  TN/DS/31  
 
- 116 - 
 
  12  FLEXIBILITY  AND MEMBER CONTROL  AND ADDITIONAL GUID ANCE FOR WTO 
ADJUDICATIVE BODIES  
12.1  Relevant part s of JOB/DS/14 and TN/DS/25 , reproduced in RD/TN/DSB/45  
Relevant part of JOB/DS/1461 
 
PROVISION  PROPOSED TEXT  SOURCE  
 
Article 8 – Composition of Panels  
 
Article 8.2  2. Panel members  Panelists  should be selected with a view to ensuring 
the their  independence of the members  and that the panel as a whole 
contains expertise to examine the kin d of matter at issue in the 
dispute , a sufficiently diverse background and a wide spectrum of relevant  
experience.  
 JOB/DS/7, 
paras. 22 -23 
 
Relevant part of TN/DS/2562 
 
PROVISION  PROPOSED TEXT  SOURCE  
Article 17 – Appellate Review  
Article 17.5  5. (b)  [Following the consideration of submissions and oral 
arguments, the Appellate Body shall issue an interim report to 
the parties to the dispute, including both the descriptive sections 
and the Appellate Body's findings and conclusions. Within a 
period of t ime set by the Appellate Body, a party to the dispute 
may submit a written request for the Appellate Body to review 
precise aspects of the interim report prior to circulation of the 
final report to the Members. At the request of a party to the 
dispute, the  Appellate Body shall hold a further meeting with the 
parties to the dispute on the issues identified in the written 
comments. If no party to the dispute submits comments within 
the comment period, the interim report shall be considered the 
final report an d circulated promptly to the Members. The 
Appellate Body shall include in its final report a discussion of the 
comments made at the interim review stage.]  
 
(c)  The Appellate Body shall suspend its work where the parties 
to the dispute so agree.  In the event of such a suspension, the Joint proposal 
on Flexibility 
and Member 
Control (FMC)  in 
TN/DS/25, p. A -
10 
                                                
61 The compilation [in document JOB/DS/14] reproduces the most r ecent draft legal texts presented and 
discussed in the DSU negotiations, where the relevant text has evolved since the issuance of the consolidated 
text reproduced in TN/DS/25, Annex A. The compilation supplements the Chairman's summaries of discussions 
issued in the JOB/DS series. It is without prejudice to the position of any participant.  
Unless otherwise indicated, proposed deletions to the current DSU text are reflected in strikeout  and 
proposed new text is in bold. Footnotes reproduced from the current  DSU carry their current numbering, 
whereas proposed footnotes are identified with letters.  
62 This text is based on the contributions of Members, and also incorporates some proposals by 
[Chairman Saborío Soto] .  It is presented under [the Chairman's]  own r esponsibility, as a basis for further 
work.  
Proposed amendments to the DSU are shown in the sequence of the provisions of the DSU, and only the 
DSU provisions to which changes are proposed are reflected.  Proposed amendments to the DSU are shown 
first, fo llowed by proposed Decisions by the Dispute Settlement Body (DSB).  
  
Proposed deletions to the current DSU text are reflected in strikeout  text.  Proposed new text is in bold.  
For clarity, proposed footnotes are identified with letters rather than numbers, and would be renumbered as 
appropriate if agreed to.  
   
Single square brackets reflect text requiring further work, decision or confirmation.  In some cases, 
square brackets are used to reflect alternative texts for consideration.  Italicised text  in double square brackets 
indicates text on which no convergence is apparent at this stage.   
 
Proposed textual changes by the Chairman are shaded in grey. Where proposed text by the Chairman 
involves deletions to text proposed by Members, this is not exp ressly reflected in this text.  TN/DS/31  
 
- 117 - 
 
  PROVISION  PROPOSED TEXT  SOURCE  
time-frames set out in this paragraph, Article  20, and paragraph 
4 of Article  21 shall be extended by the amount of time that the 
work was suspended.  [ The Appellate Body shall resume its work 
at the request of [either party], unless otherwise agreed 
between the parties. ] 
Article 17.13 Where the parties to the dispute fail to develop a mutually 
satisfactory solution [to the matter ], the Appellate Body shall 
submit its findings in the form of a written  report to the DSB.  In 
such cases, the Appellate Body shall set out in its report the 
applicability of relevant provisions and the basic rationale behind 
any findings and recommendations that it makes.   The Appellate 
Body may uphold, modify or reverse the legal findings and conclusions 
of the panel.   
 
[The Appellate Body shall not include i n its report circulated to 
the Members any finding, any finding together with its basic 
rationale, [[or a basic rationale behind a finding (where there is 
more than one basic rationale behind the finding),]]  that the 
parties to the dispute have agreed is n ot to be included].   
 
[Where the parties to the dispute have reached a [ mutually 
satisfactory ] solution to the matter, the report of the Appellate 
Body shall be confined to a brief description of the case and to 
reporting that a solution has been reached, and the report of the 
panel shall be void and of no legal effect.  Where the parties to 
the dispute have reached a solution to the appeal: (a) the report 
of the Appellate Body shall be confined to a brief description of 
the case and to reporting t hat a solution to the appeal has been 
reached, and (b) if a party to the dispute so requests, the DSB 
shall adopt the panel report [within 21  days of circulation of the 
Appellate Body report], unless the DSB decides by consensus not 
to adopt the report.]  
 Joint proposal 
on FMC in  
TN/DS/25, p. A -
11 
Article 17.14  14.  The DSB shall adopt  Aan Appellate Body report shall be adopted 
by the DSB and unconditionally accepted by the parties to the dispute  
unless the DSB decides by consensus not to adopt the Appella te Body 
report within 30 days following its circulation to the Members.8  [The 
DSB may by consensus decide not to adopt a finding in the report 
[[or the basic rationale behind a finding.]]  ] This adoption 
procedure is without prejudice to the right of Memb ers to express their 
views on an Appellate Body report .8 
 
_______________  
8 If a meeting of the DSB is not scheduled during this period, such 
a meeting of the DSB shall be held for this purpose.  
 Joint proposal 
on FMC in  
TN/DS/25, p. A -
11 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 TN/DS/31  
 
- 118 - 
 
   
 
Proposed DSB Decision on partial adoption of panel and Appellate Body Reports  
 
PROPOSED TEXT  COMMENTS /
SOURCE  
A Member proposing that a finding, [[or basic rationale behind a finding]] , in a 
panel or Appellate Body report should not be adopted by the Dispute Settlement 
Body shall submit the proposal in writing to the Dispute Settlement Body no later 
than 3 days (or the WTO working day following the 3rd day if the 3rd day is a non -
working day for the WTO) after the issuance of the airgram convening the meeting 
at which the report is proposed to be considered.r The Member shall specify in the 
proposal the finding [[, or the basic rationale behind a finding,]]  at issue and give 
a brief description of the reason not to adopt.]   
_______________  
r In the  case of a panel report, the Member shall submit the 
proposal no later than 3 days (or the WTO working day following 
the 3rd day if the 3rd day is a non -working day for the WTO) after 
the issuance of the airgram convening either: (1) the meeting at 
which t he panel report is proposed to be considered if no party has 
filed a notice of appeal; or (2) the meeting at which the panel report 
together with the Appellate Body report is proposed to be 
considered if a party has filed a notice of appeal.  
 TN/DS/25, 
p. A-25 
 
Proposed DSB Decision on additional guidance for WTO adjudicative bodies  
 
PROPOSED TEXT  COMMENTS / 
SOURCE  
A. PARAMETERS CONCERNING THE USE OF PUBLIC INTERNATIONAL LAW  
 
Areas in which public international law plays a role in WTO dispute settlement  
 
Members recognize that public international law plays an important role in WTO 
dispute settlement.  In particular, there are three important means through which 
public international law plays a role.  
 
First, the Marrakesh Agreement Establishing  the World Trade Organization is itself 
public international law.  
 
Second, in Article 3.2 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  ("DSU") Members recognize with respect to the covered 
agreements that the WTO dispu te settlement system serves "to clarify the existing 
provisions of those agreements in accordance with customary rules of 
interpretation of public international law."  The WTO Appellate Body recognized 
that this description in Article 3.2 of the role of th e WTO dispute settlement system 
"reflects a measure of recognition that the General Agreement is not to be read in 
clinical isolation from public international law."x 
_______________  
x United States - Standards for Conventional and Reformulated Gasoline 
(WT/DS2/AB/R), page 17.]]  
 
Those customary rules of interpretation of public international law are reflected in 
Articles  31 through 33 of the Vienna Convention on the Law of Treaties, including 
as state d in Article 31(3)(c) any relevant rules of international law (i.e., rules 
relevant to treaty interpretation) applicable in the relations between the parties.  
 
I[t is useful to note that i]n the commentary of the International Law Commission 
concerning Art icles 31 and 32 of the Vienna Convention, the Commission observed 
that it is not possible to identify principles of international law that apply in all 
instances.  Rather, this must be examined on a case -by-case basis.  The Commission 
stated:  
 
"Most cases submitted to international adjudication involve the interpretation of 
treaties, and the jurisprudence of international tribunals is rich in reference to 
principles and maxims of interpretation.  In fact, statements can be found in the TN/DS/25, 
pp. A -27 to 
A-35 TN/DS/31  
 
- 119 - 
 
  PROPOSED TEXT  COMMENTS / 
SOURCE  
decisions of internat ional tribunals to support the use of almost every principle or 
maxim of which use is made in national systems of law in the interpretation of 
statutes and contracts ....  Thus it would be possible to find sufficient evidence of 
recourse to principles and maxims in international practice to justify their inclusion 
in a codification of the law of treaties, if the question were simply one of their 
relevance on the international plane.  But the question raised by jurists is rather as 
to the non -obligatory char acter of many of these principles and maxims.  They are, 
for the most part, principles of logic and good sense valuable only as guides to 
assist in appreciating the meaning which the parties may have intended to attach 
to the expressions that they employed  in a document.  Their suitability for use in 
any given case hinges on a variety of considerations which have first to be 
appreciated by the interpreter of the document; the particular arrangement of the 
words and sentences, their relation to each other an d to other parts of the 
document, the general nature and subject -matter of the document, the 
circumstances in which it was drawn up, etc.  Even when a possible occasion for 
their application may appear to exist, their application is not automatic but depen ds 
on the conviction of the interpreter that it is appropriate in the particular 
circumstances of the case.  In other words, recourse to many of these principles is 
discretionary rather than obligatory and the interpretation of documents is to some 
extent an art, not an exact science."y 
_______________  
y Report of the International Law Commission on its eighteenth session, 4 May to 
19 July 1966 (A/6309/Rev.1).  Articles 31 and 32 were at that time Articles 27 and 
28. 
 
It is also important to identify the sources from which the rules relevant to treaty 
interpretation are obtained.  An international instrument that is not in force 
embodies relevant international rules only to the extent that it reflects principles 
of customary international law.  An international instrument that is in force, in 
addition to p ossibly reflecting principles of customary international law, may also 
embody relevant international rules as between the parties to that instrument, but 
not to non -parties.  
 
Third, the covered agreements include numerous references to other public 
interna tional law.  Some examples include Article XV:4 of the General Agreement 
on Tariffs and Trade 1994 (referring to the Articles of Agreement of the 
International Monetary Fund) and Article 2 of the Agreement on Trade -Related 
Aspects of Intellectual Property Rights (referring to the Paris Convention, Berne 
Convention, Rome Convention and Treaty on Intellectual Property in Respect of 
Integrated Circuits).  
 
Limitations on the use of public international law in WTO dispute settlement  
 
[Recognizing that internatio nal dispute settlement fora vary regarding the breadth 
of their adjudicatory authority,] WTO dispute settlement under the DSU is focused 
on the adjudication of rights and obligations under specified agreements.  These 
"covered agreements" are listed in App endix 1 of the DSU.  While other 
international law might properly play a role in WTO dispute settlement fora, it is 
not the function of WTO dispute settlement to adjudicate rights and obligations 
beyond those in the covered agreements.  
 
Consideration of pr ocedural approaches of other adjudicative bodies  
 
In addition, Members recognize that each WTO adjudicative body is tasked with 
managing its own proceedings, including developing its own working procedures.  
It is natural that in managing its proceedings, a body may wish to consider how 
other adjudicative bodies have approached similar procedural issues, including 
other international adjudicative bodies as well as those in an individual Member.  
Ultimately, however, such consideration is a question of the b ody exercising its 
discretion as to how to manage its proceedings; such consideration is not a 
question of interpreting a covered agreement in accordance with public 
international law.  
 
B. PARAMETERS CONCERNING THE INTERPRETIVE APPROACH  
TO USE IN WTO DISPU TE SETTLEMENT  
 TN/DS/31  
 
- 120 - 
 
  PROPOSED TEXT  COMMENTS / 
SOURCE  
WTO adjudicative bodies are constrained from adding to or diminishing the covered 
agreements  
 
Articles 3.2 and 19.2 of the DSU provide that recommendations and rulings of the 
DSB "cannot add to or diminish the rights and obligations provided  in the covered 
agreements."  This means that WTO adjudicative bodies must take care that [any 
interpretive approach they may use] results neither in supplementing nor in 
reducing the rights and obligations of Members under the covered agreements.  
 
The cov ered agreements reflect differing negotiating objectives and positions  
 
The covered agreements are the result of negotiations among sovereign nations 
and autonomous customs territories.  Negotiations inherently entail a number of 
compromises.  [Agreement b y participants on particular terms in a covered 
agreement does not mean that all WTO Members have agreed on the same 
underlying approach or rationale for those terms.]  Some participants may have 
wanted stronger rules or disciplines that went further in a particular area, while 
other participants may not have wanted rules as strong or disciplines that went as 
far.  It is for this reason that the text of the covered agreements is the best 
representation of the expectations of WTO Members.  
 
[The differences i n approach and perspective also mean that, w]hen interpreting a 
provision of a covered agreement, while other provisions of the covered 
agreements may serve as useful context, [it is not possible to deduce from the 
existence of certain provisions that WTO Members have agreed on a particular 
underlying policy and that this policy may be used as a guideline to interpret other 
provisions.  In other words,] it is not appropriate to extrapolate from the fact that 
Members have agreed to move in a particular direc tion in one provision and 
conclude that therefore Members must have intended another provision to move 
equally in the same direction.  It often may be possible to reach agreement only on 
one particular obligation or discipline while being unable to reach a greement on 
any obligation or discipline even in a related area.  
 
The covered agreements embody [constructive] ambiguity  
 
Customary international law rules of treaty interpretation, reflected in Articles 31 
through 33 of the Vienna Convention on the Law of Treaties, recognize that an 
examination in accordance with the general rule reflected in Article 31 of the Vienna 
Convention may result in a meaning that is ambiguous, and that resort to the 
supplementary means of interpretation in Article 32 may be  necessaryz. [Typically 
such analysis will permit a determination of the meaning of the terms of the treaty, 
although there is no guarantee that recourse to supplementary means of 
interpretation will always resolve that ambiguity.]  
_______________  
z See fo r example Article 32(a) of the VCLT.  
 
[Sometimes that ambiguity is deliberate.  In some circumstances, reaching 
agreement on the terms of the covered agreements may have necessitated the use 
of constructive ambiguity in a provision of a covered agreement w here the 
negotiators leave unresolved particular issues by agreeing on language that does 
not resolve the issue and is capable of more than one interpretation.  Constructive 
ambiguity can serve as a placeholder marking an area where negotiators accept 
that it may be appropriate to agree on disciplines but where further negotiation is 
necessary before those disciplines can be specified.  
 
WTO adjudicative bodies are not called to determine if ambiguity is deliberate.]  
Ambiguity is ascertained from an examina tion of the text.  WTO adjudicative bodies 
will determine whether the meaning of a text is ambiguous after applying the 
customary rules of interpretation and in light of the evidence and argument 
presented by the parties to the dispute.  There is no separa te requirement to 
establish the intent behind or reason for the ambiguity.  
 
Gap-filling  
 TN/DS/31  
 
- 121 - 
 
  PROPOSED TEXT  COMMENTS / 
SOURCE  
[In light of the nature of the covered agreements, there are at least two ways in 
which "gaps" in a covered agreement could be unacceptably filled, other than 
through negotiation.   
 
 First would be to read into the text of a covered agreement an obligation or 
right that is not present in the text, for example by extrapolating from a different 
provision.[aa] 
_______________  
[aa Some commentators would give as an example of extrapolation a situation 
where a treaty interpreter argues that "if the negotiators agreed on x in this 
provision over here, then they must have intended to agree on y in this other 
provision."]  
 
 Second woul d be to resolve ambiguity in the text of a covered agreement in 
a manner that  supplements or diminishes rights and obligations under the covered 
agreement.  
 
Neither type of "gap -filling" is an appropriate function for WTO adjudicative bodies.  
Rather, the  function of WTO adjudicative bodies is to resolve disputes over 
obligations undertaken, not to substitute for negotiators and re -write, reduce or 
supplement the agreed text.]  
 
[With respect to the first type of gap -filling], there have been several instan ces in 
which the Appellate Body has found that a panel has gone beyond the terms of a 
covered agreement and imputed obligations that were not present in the text.  The 
Appellate Body has correctly found that this is cause for overturning panel findings.  
It is important to respect the limits of the agreement negotiated.  A Member signing 
a covered agreement indicates by its signature that it is agreeing to the text of that 
agreement.  The Member is not indicating its acceptance to go beyond the text of 
that agreement.  
 
Similarly, prior reports of WTO adjudicative bodies are not covered agreements.  
They do not themselves represent agreed text.  Accordingly, it is not appropriate 
to treat or interpret a prior report as though it is agreement text or to use a prior 
report to add to or diminish rights and obligations under a covered agreement.  
 
[With respect to the second type of gap -filling,] where the application of the 
customary rules of treaty interpretation leaves the meaning of a provision 
ambiguous, e.g.,  there may be two plausible meanings, a WTO adjudicative body 
should not use that language as the basis for validating a claim or a defense where 
that validation would require foreclosing one of those meanings.  
 
[WTO Members have agreed that the WTO disput e settlement system is not to add 
to or diminish the rights and obligations under the covered agreements.  They have 
not agreed to delegate to WTO adjudicative bodies the task of filling in gaps in the 
covered agreements.]  
 
C.  PARAMETERS CONCERNING THE MEASURE UNDER REVIEW IN WTO DISPUTE 
SETTLEMENT  
 
Order of analysis  
 
Article 3.4 of the DSU provides that: "Recommendations and rulings made by the 
DSB shall be aimed at achieving a satisfactory settlement of the matter in 
accordance with the rights and obligations under this Understanding and under the 
covered agreements."  Accordingly, the purpose of the dispute settlement system 
is not to produce reports or to "make law", but rather to help Members resolve 
trade disputes among them.   
 
WTO a djudicative bodies should avoid making findings that are not aimed at 
resolving the dispute.  It is useful to bear in mind that such bodies are not permitted 
to render authoritative interpretations of the covered agreements.bb  It is also 
useful to bear in  mind that the "matter" that is referred to dispute settlement in 
the standard terms of reference under Article 7 of the DSU consists of the particular 
"measure" challenged together with the claims concerning that measure.cc 
_______________  TN/DS/31  
 
- 122 - 
 
  PROPOSED TEXT  COMMENTS / 
SOURCE  
bbArticle IX:2 of the Marrakesh Agreement Establishing the World Trade 
Organization  makes clear that the Ministerial Conference and the General Council 
"have the exclusive authority to adopt interpretations" of the covered agreements.  
cc See, e.g., Appellate Body Report,  Guatemala – Anti-Dumping Investigation 
Regarding Portland Cement from Mexico , WT/DS60/AB/R, adopted 
25 November  1998, para. 72.  
 
The order of analysis followed by WTO adjudicative bodies should respect the 
function assigned to those bodies.  In particular, the order of analysis should 
respect the fact that findings need to relate to "measures affecting the operation 
of any covered agreement"dd taken by a Member.  
_______________  
dd Article 4.2 of the DSU.  
 
[For example, consider the situation wher e one party claims another Member's 
measure does x, and that x is inconsistent with a provision of a covered agreement, 
but the responding Member claims that its measure does not do x.  In such a 
situation, it would not be appropriate for a WTO adjudicativ e body first to make 
findings on whether x is inconsistent with a provision of a covered agreement 
before making findings on whether the measure at issue actually does x.  
Otherwise, in the event that the body finds that the measure does not do x, the 
body 's finding that x is inconsistent with a covered agreement is not aimed at a 
"measure ... affecting the operation of any covered agreement taken within the 
territory" of a Member.ee  Instead the finding is an advisory opinion divorced from 
the measure at i ssue (and therefore divorced from the actual "matter" referred to 
the body).]  
_______________  
ee Article 4.2 of the DSU.  
 
[A further implication of the "measure affecting" language is that WTO dispute 
settlement is not concerned in a dispute with a measure  of a Member that expired 
prior to the date of the request for consultations by another Member in that dispute 
or that otherwise does not exist as of the date of the request for consultations].  
 
The question of whether a measure does x is a factual questio n because at that 
point it is not a question of the interpretation of a provision of a covered agreement 
or of whether a provision applies to the measure.  
 
Definition of a measure  
 
It is useful to recall that the covered agreements do not define the term " measure."  
There  is no such definition because the content of the term may vary from case to 
case.  For  example, what constitutes a "measure" for purposes of the General 
Agreement on Tariffs and Trade 1994  may be different from what constitutes a 
measure f or purposes of the Agreement on Trade -Related Aspects of Intellectual 
Property Rights  or the DSU.  
 
The Appellate Body has suggested that "instruments of a Member containing rules 
or norms could constitute a 'measure', irrespective of how or whether those rules 
or norms are applied in a particular instance."ff  The Appellate Body, in using the 
term "could constitute" clearly indicated that this is not intended to be a definition 
of "measure," but rather one starting point for analysis. In particular, not all such 
"instruments" are measures and not all measures are "instruments."  For example, 
a measure may not be an "instrument" but may be an "action" by a Member or in 
some cases could be viewed as "inaction" by a Member.gg  See for example the 
discuss ion by the Appellate Body in Guatemala – Anti-Dumping Investigation 
Regarding Portland Cement from Mexico :  "In the practice established under the 
GATT 1947, a 'measure' may be any act of a Member, whether or not legally binding, 
and it can include even no n-binding administrative guidance by a government.  A 
measure can also be an omission or a failure to act on the part of a Member.hh 
_______________  
ff Appellate Body Report, United States – Sunset Review of Anti -Dumping Duties on 
Corrosion -Resistant Carbo n Steel Flat Products from Japan  , WT/DS244/AB/R, 
adopted 9  January 2004, para.  82. 
gg For example, a failure to submit a notification to the WTO could be viewed as 
"inaction."  (See, e.g., Article 12.6 of the Agreement on Safeguards .) TN/DS/31  
 
- 123 - 
 
  PROPOSED TEXT  COMMENTS / 
SOURCE  
hh WT/DS60/AB/R at footnote 47, internal citations omitted.  
 
Conversely, not all "instruments"ii that contain rules or norms are "measures."jj 
For example, a "measure" would not include:  
_______________  
ii Definitions of "instrument" include:  "A formal or le gal document in writing, such 
as a contract, deed, will, bond, or lease" and "Anything reduced to writing, a 
document of a formal or solemn character, a writing given as a means of affording 
evidence."  Black's Law Dictionary, Sixth Edition.  
jj Instruments  that are not "measures" could nonetheless in some circumstances 
assist in understanding the meaning of a particular measure.  
 
(1) legislative history that does not itself have any legal standing or effect other 
than as legislative history;  
 
(2) statements  without effect, for example, a statement by an individual 
legislator that is solely the expression of that individual's view; and  
 
(3) statements in court decisions that are obiter dicta , or dissenting opinions in 
court decisions.  
 
 
Mandatory vs. discreti onary measures  
 
A WTO adjudicative body is not permitted to presume that a Member will choose to 
breach a covered agreement.  Accordingly, where a measure provides a Member 
with the discretion to comply with a covered agreement, the measure may not be 
found to be inconsistent as such with the covered agreement, even if the discretion 
is broad enough also to permit the Member to act in a manner that would breach 
the covered agreement.] ]  
 
 
__________  
 
  
 