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REPERTORY OF APPELLATE BODY REPORTS

Working Procedures for Appellate Review


ON THIS PAGE:

Timing of an appeal. See also Rule 26 — Working schedule (W.2.10); Rule 30 — Withdrawal (W.2.13)
General
Rule 3.1 — Decision-making
Rule 3.2 — Concurring opinion — Article 17.11 of the DSU
Rule 3.2 — Separate opinion — Article 17.11 of the DSU
Rule 8 — Rules of conduct — Confidentiality. See also Business Confidential Information (B.4); Confidentiality (C.6)
Rule 13 — Replacement of Appellate Body Member on Division. See also Working Procedures for Appellate Review, Rule 16 — Process (W.2.6)
Rule 15 — Transition
Rule 16 — Process. See also Amicus Curiae Briefs, Additional procedure (A.2.3); Working Procedures for Appellate Review, Rule 26 — Working schedule (W.2.10); Working Procedures for Appellate Review, Rule 27 — Oral hearing (W.2.11)
Rule 18 — Documents
Rule 20 — Notice of Appeal
Rule 21 — Appellant’s submission
Rule 22 — Appellee’s submission
Rule 23 — Multiple appeals — (cross appeal). See also Working Procedures for Appellate Review, Rule 20 — Notice of Appeal (W.2.7); Working Procedures for Appellate Review, Rule 22 — Appellee’s submission (W.2.7B)
Rule 24 — Third participants. See also Third Party Rights (T.8); Working Procedures for Appellate Review, Rule 26 — Working schedule (W.2.10); Working Procedures for Appellate Review, Rule 27 — Oral hearing (W.2.11)
Rule 26 — Working schedule
Rule 27 — Oral hearing. See also Business Confidential Information (B.4); Confidentiality (C.6)
Rule 28 — Written responses
Rule 30 — Withdrawal


W.2.0 Timing of an appeal. See also Rule 26 — Working schedule (W.2.10); Rule 30 — Withdrawal (W.2.13)     back to top

W.2.0.1 EC — Sardines, para. 147
(WT/DS231/AB/R)

 

In addition, we believe there are circumstances that, although not constituting “abusive practices”, would be in violation of the DSU, and would, thus, compel us to disallow the conditional withdrawal of a notice of appeal as well as the filing of a replacement notice. For example, if the conditional withdrawal or the filing of new notice were to take place after the 60-day deadline in Article 16.4 of the DSU for adoption of panel reports, this would effectively circumvent the requirement to file appeals within 60 days of circulation of panel reports. In such circumstances, we would reject the conditional withdrawal and the new notice of appeal.

 

W.2.0.2 EC — Export Subsidies on Sugar, para. 5
(WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R)

 

In a communication dated 2 December 2004, Australia, Brazil, the European Communities, and Thailand informed the Chair of the Dispute Settlement Body (the “DSB”) of a “procedural agreement” concluded between these four parties regarding the 60-day period provided for in Article 16.4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the “DSU”) for the adoption or appeal of the Panel Reports. The parties requested the DSB to postpone the consideration of the Panel Reports and to agree to the extension of the time period in Article 16.4 of the DSU until 31 January 2005. At a meeting held on 13 December 2004, the DSB took note of these requests and agreed that it would adopt the Panel Reports on or before 31 January 2005, unless the DSB decided by consensus not to do so, or a party notified the DSB of its decision to appeal.

 

W.2.0.3 Brazil — Retreaded Tyres, para. 6
(WT/DS332/AB/R)

 

At its meeting on 10 August 2007, the DSB agreed to a joint request by Brazil and the European Communities to extend the time period for adoption of the Panel Report until no later than 20 September 2007. …

 
W.2.1 General     back to top

W.2.1.1 US — FSC, para. 166
(WT/DS108/AB/R)

 

… The procedural rules of WTO dispute settlement are designed to promote, not the development of litigation techniques, but simply the fair, prompt and effective resolution of trade disputes.

 

W.2.1.2 EC — Sardines, para. 139
(WT/DS231/AB/R)

 

… we emphasize that the Working Procedures must not be interpreted in a way that could undermine the effectiveness of the dispute settlement system, for they have been drawn up pursuant to the DSU and as a means of ensuring that the dispute settlement mechanism achieves the aim of securing a positive solution to a dispute. …

 
W.2.2 Rule 3.1 — Decision-making     back to top

W.2.2.1 EC — Asbestos, para. 51
(WT/DS135/AB/R)

 

… after consultations among all seven Members of the Appellate Body, we adopted, pursuant to Rule 16(1) of the Working Procedures, an additional procedure, for the purposes of this appeal only, to deal with written submissions received from persons other than the parties and third parties to this dispute (the “Additional Procedure”).

 
W.2.3 Rule 3.2 — Concurring opinion — Article 17.11 of the DSU     back to top

W.2.3.1 EC — Asbestos, para. 149
(WT/DS135/AB/R)

 

One Member of the Division hearing this appeal wishes to make a concurring statement. At the outset, I would like to make it abundantly clear that I agree with the findings and conclusions reached, and the reasoning set out in support thereof, by the Division, in: Section V (TBT Agreement); Section VII (Article XX(b) of the GATT 1994 and Article 11 of the DSU); Section VIII (Article XXIII:1(b) of the GATT 1994); and Section IX (Findings and Conclusions) of the Report. This concurring statement, in other words, relates only to Section VI (“Like Products” in Article III:4 of the GATT 1994) of the Report.

 

W.2.3.2 EC — Asbestos, para. 150
(WT/DS135/AB/R)

 

More particularly, in respect of Section VI of the Report, I join in the findings and conclusions set out in: paragraphs 116, 126, 128, 131, 132, 141, 147 and 148. I am bound to say that, in truth, I agree with a great deal more than just the bare findings and conclusions contained in these eight paragraphs of the Report. It is, however, as a practical matter, not feasible to sort out and identify which part of which paragraph, of the sixty-odd paragraphs comprising Section VI of our Report in which I join. Nor is it feasible to offer a detailed statement with respect to the portions that would then remain. Accordingly, I set out only two related matters below.

 

W.2.3.3 EC — Asbestos, para. 154
(WT/DS135/AB/R)

 

…Moreover, in future concrete contexts, the line between a “fundamentally” and “exclusively” economic view of “like products” under Article III:4 may well prove very difficult, as a practical matter, to identify. It seems to me the better part of valour to reserve one’s opinion on such an important, indeed, philosophical matter, which may have unforeseeable implications, and to leave that matter for another appeal and another day, or perhaps other appeals and other days. I so reserve my opinion on this matter.

 

W.2.3.4 US — Continued Zeroing, paras. 312-313
(WT/DS350/AB/R)

 

There is little point in further rehearsing the fine points of these interpretations. In my view, there is every reason to survey this debate with humility. There are arguments of substance made on both sides; but one issue is unavoidable. In matters of adjudication, there must be an end to every great debate. The Appellate Body exists to clarify the meaning of the covered agreements. On the question of zeroing it has spoken definitively. Its decisions have been adopted by the DSB. The membership of the WTO is entitled to rely upon these outcomes. Whatever the difficulty of interpreting the meaning of “dumping”, it cannot bear a meaning that is both exporter-specific and transaction-specific. We have sought to elucidate the notion of permissibility in the second sentence of Article 17(6)(ii). The range of meanings that may constitute a permissible interpretation does not encompass meanings of such wide variability, and even contradiction, so as to accommodate the two rival interpretations. One must prevail. The Appellate Body has decided the matter. At a point in every debate, there comes a time when it is more important for the system of dispute resolution to have a definitive outcome, than further to pick over the entrails of battles past. With respect to zeroing, that time has come.

 

For these reasons, I concur in the decision reached by the Division in section E that the United States acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 by using simple zeroing in periodic reviews.

 
W.2.3A Rule 3.2 — Separate opinion — Article 17.11 of the DSU     back to top

W.2.3A.1 US — Upland Cotton, para. 631
(WT/DS267/AB/R)

 

One Member of the Division hearing this appeal wishes to set out a brief separate opinion. At the outset, I would like to make it absolutely clear that I agree with the findings and conclusions and reasoning set out in all preceding Sections of this Report, but one, namely, Section C above, which relates to Article 10.2 of the Agreement on Agriculture. It is only on the interpretation of Article 10.2 that I must respectfully disagree.

 

W.2.3A.2 US — Upland Cotton, para. 641 and footnote 952
(WT/DS267/AB/R)

 

I also recognize that this interpretation of Article 10.2 has consequential results for some of the other claims on appeal brought by both the United States and Brazil in connection with the United States’ export credit guarantee programmes. As to the other Sections of this Report dealing with export credit guarantees, I agree that the legal interpretation and analyses contained therein follow logically from the view of my colleagues on the Division with respect to Article 10.2, as set forth in paragraphs 605 through 630 of this Report.952

 

W.2.3A.3 US — Zeroing (EC) (Article 21.5 — EC), para. 259
(WT/DS294/AB/RW, WT/DS294/AB/RW/Corr.1)

 

One Member of the Division wishes to set out a separate opinion concerning the United States’ appeal of the Panel’s finding that the 2004-2005 administrative reviews in Cases 1 and 6 fell within its terms of reference under Article 21.5 of the DSU by virtue of their close nexus, in terms of nature, effects, and timing, with the declared measures taken to comply, and the recommendations and rulings of the DSB.

 

W.2.3A.4 US — Zeroing (EC) (Article 21.5 — EC), para. 270
(WT/DS294/AB/RW, WT/DS294/AB/RW/Corr.1)

 

Accordingly, I do not see how it can be concluded, in the light of the Appellate Body Reports in US — Softwood Lumber IV (Article 21.5 — Canada) and US — Stainless Steel (Mexico), that the administrative reviews in Cases 1 and 6 (including the rescission of the 2005-2006 administrative review in Case 1) have a close nexus with the recommendations and rulings of the DSB or the declared measures “taken to comply”, and fall within the Panel’s terms of reference. Since I do not consider that the scope of these Article 21.5 proceedings can properly be expanded to include compliance obligations with respect to measures for which there were no recommendations and rulings by the DSB, I do not consider it appropriate to make further findings with respect to Cases 1 and 6.

 
W.2.4 Rule 8 — Rules of conduct — Confidentiality.
See also Business Confidential Information (B.4); Confidentiality (C.6)     back to top

W.2.4.1 Brazil — Aircraft, para. 124; Canada — Aircraft, para. 146
(WT/DS46/AB/R, WT/DS70/AB/R)

 

… Members of the Appellate Body and its staff are covered by Article VII:1 of the Rules of Conduct, which provides:

 

Each covered person shall at all times maintain the confidentiality of dispute settlement deliberations and proceedings together with any information identified by a party as confidential. (emphasis added)

 
W.2.5 Rule 13 — Replacement of Appellate Body Member on Division.
See also Working Procedures for Appellate Review, Rule 16 — Process (W.2.6)     back to top

W.2.5.1 US — Lead and Bismuth II, para. 8
(WT/DS138/AB/R)

 

On 19 March 2000, Mr Christopher Beeby, a Member of the Division hearing this appeal, passed away. On 20 March 2000, the Appellate Body, pursuant to Rule 13 of the Working Procedures, selected Mr Julio Lacarte-Muró to replace Mr Beeby. …

 

W.2.5.2 US — Offset Act (Byrd Amendment), para. 8
(WT/DS217/AB/R, WT/DS234/AB/R)

 

In a letter dated 22 November 2002, the Director of the Appellate Body Secretariat informed the participants and third participants that, in accordance with Rule 13 of the Working Procedures, the Appellate Body had selected Mr Giorgio Sacerdoti to replace Mr A.V. Ganesan as Presiding Member of the Division hearing this appeal. The latter was prevented from continuing to serve on the Division for serious personal reasons.

 

W.2.5.3 US — Softwood Lumber IV, para. 10
(WT/DS257/AB/R)

 

In a letter dated 12 November 2003, the Director of the Appellate Body Secretariat informed the participants and third participants that, in accordance with Rule 13 of the Working Procedures, the Appellate Body had selected Mr Giorgio Sacerdoti to replace Mr A.V. Ganesan as a Member of the Division hearing this appeal because the latter was prevented from continuing to serve on the Division for serious personal reasons.

 
W.2.5A Rule 15 — Transition     back to top

W.2.5A.1 US — Shrimp (Thailand) / US — Customs Bond Directive, para. 16
(WT/DS343/AB/R, WT/DS345/AB/R)

 

In a letter dated 21 April 2008, the participants were informed that Appellate Body Member, Mr A.V. Ganesan, had been selected, on the basis of rotation, to serve on the Division hearing these appeals, and that, in accordance with Rule 15 of the Working Procedures, the Appellate Body had notified the Chairman of the DSB of its decision to authorize Mr Ganesan to complete the disposition of the appeals even though his second term as Appellate Body Member was to expire before the completion of the appellate proceedings. …

 

W.2.5A.2 US — Continued Suspension / Canada — Continued Suspension, para. 27
(WT/DS320/AB/R, WT/DS321/AB/R)

 

… The participants were further informed that Appellate Body Member, Mr Georges Abi-Saab, had been selected, on the basis of rotation, to serve on the Division hearing these appeals, and that, in accordance with Rule 15 of the Working Procedures, the Appellate Body had notified the Chairman of the DSB of its decision to authorize Mr Abi-Saab to complete the disposition of the appeals even though his second term as Appellate Body Member was due to expire before the completion of the appellate proceedings.

 
W.2.6 Rule 16 — Process.
See also Amicus Curiae Briefs, Additional procedure (A.2.3); Working Procedures for Appellate Review, Rule 26 — Working schedule (W.2.10); Working Procedures for Appellate Review, Rule 27 — Oral hearing (W.2.11)     back to top

W.2.6.1 EC — Bananas III, para. 10
(WT/DS27/AB/R)

 

On 15 July 1997, the Appellate Body notified the participants and third participants in this appeal of its ruling that the request by Saint Lucia would be allowed. The Appellate Body said the following:

 

… we can find nothing in the Marrakesh Agreement Establishing the World Trade Organization (the “WTO Agreement”), the DSU or the Working Procedures, nor in customary international law or the prevailing practice of international tribunals, which prevents a WTO Member from determining the composition of its delegation in Appellate Body proceedings. Having carefully considered the request made by the government of Saint Lucia, and the responses dated 14 July 1997 received from Canada; Jamaica; Ecuador, Guatemala, Honduras, Mexico and the United States, we rule that it is for a WTO Member to decide who should represent it as members of its delegation in an oral hearing of the Appellate Body.

 

W.2.6.2 Guatemala — Cement I, para. 4
(WT/DS60/AB/R)

 

… On 14 August 1998, Guatemala filed an appellant’s submission drafted in Spanish. On 31 August 1998, Mexico filed an appellee’s submission also drafted in Spanish. In order to ensure that the third participant would have time to prepare its submission after receiving an English version of the appellant’s submission, the Appellate Body granted the United States additional time to file its third participant’s submission. The United States filed that submission on 14 September 1998. By our ruling of 31 August 1998, we declined Mexico’s request that its appellee’s submission be withheld from Guatemala and the United States until the end of the time-period allowed to the United States to file its third participant’s submission. …

 

W.2.6.3 Brazil — Aircraft, para. 9; mutatis mutandis
(
WT/DS46/AB/R)

 

… by joint letter of 27 May 1999, Brazil and Canada requested that the Appellate Body apply, mutatis mutandis, the Procedures Governing Business Confidential Information adopted by the Panel in this case. A preliminary hearing on this issue was held on 10 June 1999, with this Division sitting jointly with the Division of the Appellate Body hearing the appeal in Canada — Measures Affecting the Export of Civilian Aircraft (“Canada — Aircraft”), and a preliminary ruling was issued by this Division on 11 June 1999.

 

W.2.6.4 Brazil — Aircraft, para. 104; mutatis mutandis
(
WT/DS46/AB/R)

 

By letter of 31 May 1999, we invited the participants to file legal memoranda in support of their request, and offered each an opportunity to respond to the legal memorandum submitted by the other. The third participants were also given an opportunity to file legal memoranda. Brazil and Canada submitted legal memoranda on 2 June 1999. On 4 June 1999, the third participants, the European Communities and the United States, also filed legal memoranda. On the same date, Brazil and Canada each filed a written response to the memorandum previously submitted by the other on 2 June 1999. A preliminary hearing on this issue was held on 10 June 1999, with this Division sitting jointly with the Division of the Appellate Body hearing the appeal in Canada — Aircraft.

 

W.2.6.5 Brazil — Aircraft, para. 119; Canada — Aircraft, para. 141
(WT/DS46/AB/R, WT/DS70/AB/R)

 

In our preliminary ruling of 11 June 1999, we concluded that it is not necessary, under all the circumstances of this case, to adopt additional procedures to protect business confidential information in these appellate proceedings. …

 

W.2.6.6 EC — Asbestos, para. 51
(WT/DS135/AB/R)

 

… after consultations among all seven Members of the Appellate Body, we adopted, pursuant to Rule 16(1) of the Working Procedures, an additional procedure, for the purposes of this appeal only, to deal with written submissions received from persons other than the parties and third parties to this dispute (the “Additional Procedure”). The Additional Procedure was communicated to the parties and third parties. … the Chairman of the Appellate Body informed the Chairman of the Dispute Settlement Body, in writing, of the Additional Procedure adopted, and this letter was circulated, for information, as a dispute settlement document to the Members of the WTO. …

 

W.2.6.7 US — FSC (Article 21.5 — EC), para. 8
(WT/DS108/AB/RW)

 

By letter of 22 October 2001, the United States requested the Appellate Body pursuant to Rule 16(2) of the Working Procedures to modify the timetable set out in the Working Schedule for Appeal for the filing of the appellant’s submissions by the United States. The United States stated that suspected bioterrorist attacks had compromised the ability of the United States to conduct the necessary consultations with the United States Congress with regard to this appeal. According to the United States, the effect of these circumstances was such that adhering to the original timetable would result in manifest unfairness to the United States. In its letter of 23 October 2001, the European Communities did not object to the request made by the United States, but requested that, in order to preserve the balance of procedural rights afforded to the participants in this appeal, the Appellate Body extend the deadline for the filing of the European Communities’ appellee’s submission by 14 days. In a letter dated 23 October 2001, the Division of the Appellate Body hearing the appeal accepted that the circumstances identified by the United States constituted “exceptional circumstances” within the meaning of Rule 16(2) of the Working Procedures and that maintaining the deadline for submission of the appellants’ submission would result in “manifest unfairness” to the United States. Accordingly, the Division agreed to modify the Working Schedule for this appeal to allow the United States an additional seven days for the filing of its appellant’s submission. In the same letter, the Division also extended by seven days the deadlines for the filing of the other appellant’s submissions, the appellee’s submission, and the third participants’ submissions.

 

W.2.6.8 US — Lead and Bismuth II, para. 8
(WT/DS138/AB/R)

 

On 19 March 2000, Mr Christopher Beeby, a Member of the Division hearing this appeal, passed away. On 20 March 2000, the Appellate Body, pursuant to Rule 13 of the Working Procedures, selected Mr Julio Lacarte-Muró to replace Mr Beeby. In view of these extraordinary circumstances, the newly constituted Division decided, pursuant to Rule 16(1) of the Working Procedures, and in the interests of fairness and orderly procedure in the conduct of this appeal, to hold another oral hearing on 4 April 2000. On that date, the participants and third participants presented oral arguments and responded to questions put to them by the Members of the newly constituted Division. Due to these same extraordinary circumstances, the participants in this appeal, the European Communities and the United States, agreed to a two week extension of the 90-day time limit for the consideration of this appeal, and thus agreed that this Report should be circulated no later than 10 May 2000.

 

W.2.6.9 US — Countervailing Measures on Certain EC Products, para. 52
(WT/DS212/AB/R)

 

On 10 September 2002, the European Communities the filed a Request for a Preliminary Ruling (the “Request”), alleging that the United States’ Notice of Appeal “is manifestly not in conformity with Rule 20(2)(d) of the Working Procedures for Appellate Review” because it “fails to identify the findings or the legal interpretations that it considers to be erroneous”. The European Communities argued that “[a]s a consequence, the European Communities is unable to prepare its response to the appeal.” The European Communities asked us to “order the United States, pursuant to Rule 16(1) of the Working Procedures, immediately to file further and better particulars to its notice of appeal identifying the precise legal findings and legal interpretations that it is challenging”.

 

W.2.6.10 US — Countervailing Measures on Certain EC Products, para. 55
(WT/DS212/AB/R)

 

On 12 September 2002, we invited the United States “to identify the precise findings and interpretations of the Panel which are alleged, in the Notice of Appeal filed on 9 September 2002, to constitute errors”. The United States responded by letter dated 13 September 2002. In an attachment to that letter, the United States quoted in full the paragraphs of the Panel Report to which it had merely referred by number in the Notice of Appeal. The United States also provided information as to legal errors allegedly committed by the Panel.

 

W.2.6.11 US — Softwood Lumber VI (Article 21.5 — Canada), para. 13 and footnote 25
(WT/DS277/AB/RW, WT/DS277/AB/RW/Corr.1)

 

On 18 January 2006, the Director of the Appellate Body Secretariat received a letter from the United States requesting to change the date scheduled for the oral hearing in this appeal — 23 February 2006 — on the grounds that “lead counsel for the United States [was] not available on that date, due to a long-established prior commitment”. Neither Canada nor the third participants objected to the United States’ request.25 By letter dated 26 January 2006, the Division informed the participants and the third participants that it had decided to change the date of the oral hearing to 24 February 2006.

 

W.2.6.12 US — Stainless Steel (Mexico), para. 164
(WT/DS344/AB/R)

 

… The late filing of a participant’s submission could have implications for the other participants. Compliance with the procedural requirements relating to the timely filing of submissions is a matter of fairness and orderly procedure, which are referred to in Rule 16(1) of the Working Procedures. …

 

W.2.6.13 US — Shrimp (Thailand) / US — Customs Bond Directive, para. 16
(WT/DS343/AB/R, WT/DS345/AB/R)

 

In a letter dated 21 April 2008, … [t]he Division further noted that, in the interests of “fairness and orderly procedure”, as referred to in Rule16(1) of the Working Procedures, and in agreement with the participants, the appellate proceedings in respect of the appeals by both Thailand and India would be consolidated due to the substantial overlap in the content of the disputes. A single Division would hear and decide both appeals, and a single oral hearing would be held by the Division. Further to a request by the United States, and in consultation with the participants, the Division extended, pursuant to Rule 16(2) of the Working Procedures, the time periods for the filing of the other appellant’s submissions by the United States, as well as for the filing of appellees’ and third participants’ submissions. The Division also invited all third parties in US — Shrimp (Thailand) and US — Customs Bonds Directive to attend the single oral hearing in the consolidated appellate proceedings, noting, however, the understanding that, in their written submissions and oral statements, the third participants would address only the issues appealed in the dispute(s) to which they were third parties in the panel proceedings.

 

W.2.6.14 US — Shrimp (Thailand) / US — Customs Bond Directive, paras. 17-18
(WT/DS343/AB/R, WT/DS345/AB/R)

 

By letter dated 22 April 2008, India requested the Division to extend the time period for filing its appellant’s submission by one working day, that is, from 24 April to 25 April 2008, pursuant to Rule 16(2) of the Working Procedures, due to certain unforeseen developments. On the same day, the Division invited the participants and third participants to comment on India’s request by 5 p.m. on 23 April 2008. Two comments were received: Thailand did not object to India’s request; and the United States submitted that it would accept India’s request provided that the filing dates applicable to the United States’ submissions would be adjusted accordingly.

 

Having carefully considered India’s request and the views expressed by the United States and Thailand, the Division granted India time until 1 p.m., Geneva time, on 25 April 2008 to file its appellant’s submission. Further, in view of the submission made by the United States, the Division also granted the United States time until 1 p.m., Geneva time, on 20 May 2008 to file its appellee’s submissions. The same extension was also granted to India and to Thailand to file their appellee’s submissions and to those third participants wishing to file a submission pursuant to Rule 24(1) or a notification pursuant to Rule 24(2) of the Working Procedures.

 

W.2.6.15 US — Continued Suspension / Canada — Continued Suspension, para. 27 and footnote 62
(WT/DS320/AB/R, WT/DS321/AB/R)

 

In a letter dated 30 May 2008, the Division noted that, in the interests of “fairness and orderly procedure”, as referred to in Rule 16(1) of the Working Procedures, and in agreement with the participants, the appellate proceedings in respect of the European Communities’ appeal from the Panel Reports in US — Continued Suspension and Canada — Continued Suspension would be consolidated due to the substantial overlap in the content of the disputes. A single Division would hear and decide the appeals, and a single oral hearing would be held by the Division.62

 

W.2.6.16 China — Auto Parts, para. 10
(WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R)

 

On 19 September 2008, the Presiding Member of the Division hearing the appeal in this dispute received a letter from the United States requesting, pursuant to Rule 16(2) of the Working Procedures, to change the dates scheduled for the oral hearing in this appeal from 27-28 October 2008 to 28-29 October 2008. On the same day, the Division hearing this appeal offered Canada, China, the European Communities and the third participants the opportunity, if they so chose, to comment on the United States’ request. None of the participants or third participants objected to this request by the United States. By letter dated 26 September 2008, the Division informed the participants and the third participants that it had decided to change the starting time of the oral hearing in this appeal from the morning to the afternoon of 27 October 2008.

 

W.2.6.17 China — Auto Parts, para. 12
(WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R)

 

On 10 October 2008, the United States requested the Appellate Body to issue three separate reports in this appeal, setting out its conclusions and recommendations separately for each Panel Report under appeal. The other participants and the third participants were afforded an opportunity to comment on this request at the oral hearing. They made no objection to the United States’ request.

 
W.2.6A Rule 18 — Documents     back to top

W.2.6A.1 Mexico — Taxes on Soft Drinks, para. 7
(WT/DS308/AB/R)

 

By letter dated 5 January 2006, Mexico requested authorization to correct certain clerical errors in its appellant’s submission pursuant to Rule 18(5) of the Working Procedures. … By letter dated 16 January 2006, the Division authorized Mexico to correct the clerical errors in its appellant’s submission but emphasized, however, that it had not been requested, and did not make, a finding “as to whether all of the corrections requested by Mexico are ‘clerical’ within the meaning of Rule 18(5) of the Working Procedures”.

 

W.2.6A.2 US — Softwood Lumber VI (Article 21.5 — Canada), para. 15 and footnote 28
(WT/DS277/AB/RW, WT/DS277/AB/RW/Corr.1)

 

By letter dated 8 March 2006, Canada requested authorization from the Division to correct certain clerical errors in its appellant’s submission, although the deadline for such a request had passed. On 9 March 2006, the Division invited the United States and the third participants to comment in writing on Canada’s request.28 No objections were received. By letter dated 17 March 2006, the Division granted the request because: the correct information was, in any event, set forth in one of the exhibits submitted by Canada to the Panel; the matter had been discussed at the oral hearing; and the United States did not object to the request.

 

W.2.6A.3 EC — Selected Customs Matters, para. 13
(WT/DS315/AB/R)

 

By letter dated 15 September 2006, Japan requested authorization from the Appellate Body Division hearing the appeal to correct a “clerical error” in its third participant’s submission, pursuant to Rule 18(5) of the Working Procedures. On 18 September 2006, the Division invited all participants and third participants to comment on Japan’s request. None of the participants or third participants objected to Japan’s request. On 20 September 2006, the Division authorized Japan, pursuant to Rule 18(5), to correct the clerical error in its third participant’s submission.

 

W.2.6A.4 US — Zeroing (Japan), para. 5
(WT/DS322/AB/R)

 

By letter dated 20 October 2006, Japan requested authorization from the Appellate Body Division hearing the appeal to correct a clerical error in its appellant’s submission, pursuant to Rule 18(5) of the Working Procedures. On 23 October 2006, the Division invited, pursuant to Rule 18(5), all participants and third participants to comment on Japan’s request. No objection to Japan’s request was received and, on 25 October 2006, the Division authorized Japan to correct the clerical error in its appellant’s submission.

 

W.2.6A.5 Japan — DRAMs (Korea), para. 12
(WT/DS336/AB/R, WT/DS336/AB/R/Corr.1)

 

By letter dated 12 September 2007, Japan requested authorization from the Appellate Body Division hearing the appeal to correct certain “clerical errors” in its appellant’s submission, pursuant to Rule 18(5) of the Working Procedures. On 14 September 2007, the Division invited all participants and third participants to comment on Japan’s request. None of the participants or third participants objected to Japan’s request. On 18 September 2007, the Division authorized Japan to correct the “clerical errors” in its appellant’s submission.

 

W.2.6A.6 US — Stainless Steel (Mexico), para. 5
(WT/DS344/AB/R)

 

By letter dated 8 February 2008, Mexico requested authorization from the Appellate Body to correct a clerical error in its appellant’s submission, and two clerical errors in the executive summary of that submission, pursuant to Rule 18(5) of the Working Procedures. On 12 February 2008, the Appellate Body Division hearing the appeal invited the United States and the third participants to comment on Mexico’s request. No objections to Mexico’s request were received and, on 14 February 2008, the Division authorized Mexico to correct the identified clerical errors.

 

W.2.6A.7 US — Stainless Steel (Mexico), para. 7
(WT/DS344/AB/R)

 

During the course of the appeal, the Division received a request pertaining to a procedural matter. By letter dated 3 March 2008, the European Communities requested the Appellate Body to clarify whether the United States’ appellee’s submission was considered to be filed with the Appellate Body within the meaning of Rule 18(1) of the Working Procedures. The European Communities pointed out that the Working Schedule for this appeal, communicated to the parties on 1 February 2008, provided for the United States’ appellee’s submission to be filed by Monday, 25 February 2008, at 5.00 p.m. However, the electronic version of the United States’ appellee’s submission was sent to the Appellate Body by e-mail only at 7.56 p.m., and the European Communities presumes that printed copies were delivered to the Appellate Body after that time. As a result, the United States “had significant time to examine the filings of the Third Participants and eventually adjust its own submission prior to filing”. At the oral hearing, the European Communities reiterated its request that the Appellate Body clarify whether it considers the United States’ appellee’s submission to be filed within the meaning of Rule 18(1) of the Working Procedures, and what the consequences are, if any, of a late filing.

 

W.2.6A.8 US — Stainless Steel (Mexico), paras. 163-164
(WT/DS344/AB/R)

 

In a letter dated 3 March 2008, the European Communities complained that the United States’ appellee’s submission was submitted almost three hours after the time-limit set out by the Appellate Body in the Working Schedule for this appeal, communicated to the participants and third participants on 1 February 2008. The European Communities submits that the United States “had significant time to examine the filings of the Third Participants and eventually adjust its own submission prior to filing”. At the oral hearing, the European Communities reiterated its request that the Appellate Body clarify whether it considers the United States’ appellee’s submission to be filed within the meaning of Rule 18(1) of the Working Procedures, and what the consequences are, if any, of a late filing.

 

We share the concerns raised by the European Communities. Compliance with established time periods by all participants regarding the filing of submissions is an important element of due process of law. The Appellate Body clarified in India — Patents (US) that due process requirements are implicit in the DSU. This is particularly important, given that, according to Rules 22(1) and 24(1) of the Working Procedures, the appellee’s submission(s) and the third participant’s submission( s) are filed contemporaneously. The late filing of a participant’s submission could have implications for the other participants. Compliance with the procedural requirements relating to the timely filing of submissions is a matter of fairness and orderly procedure, which are referred to in Rule 16(1) of the Working Procedures. In the circumstances of this appeal, we nevertheless consider the United States’ appellee’s submission as filed.

 

W.2.6A.9 US — Shrimp (Thailand) / US — Customs Bond Directive, para. 20
(WT/DS343/AB/R, WT/DS345/AB/R)

 

By letter dated 29 April 2008, India requested authorization from the Division to correct certain “clerical errors” in its appellant’s submission, pursuant to Rule 18(5) of the Working Procedures. On 30 April 2008, the Division invited all participants and third participants to comment on India’s request. None of the participants or third participants objected to India’s request. On 7 May 2008, the Division authorized India to correct the “clerical errors” in its appellant’s submission.

 

W.2.6A.10 US — Continued Suspension / Canada — Continued Suspension, para. 30 and footnote 72
(WT/DS320/AB/R, WT/DS321/AB/R)

 

On 27 June 2008, the European Communities sent a letter to the Appellate Body Secretariat noting that the United States and Canada had filed their appellee’s submissions after the 5.00 p.m. time-limit set out by the Division in the Working Schedule drawn up for these appeals. The European Communities referred to Rule 18(1) of the Working Procedures and requested that the Division “inform the parties of the treatment that should be accorded to these documents”. The United States and Canada responded in separate letters and requested the Division to reject the European Communities’ request.72 At the oral hearing, the Division gave a ruling on the European Communities’ request regarding the late filing of the appellee’s submission by the United States and Canada. The Division emphasized the importance of all participants adhering strictly to the time-limits set out in the Working Schedule, given the time constraints imposed upon both the participants and the Appellate Body Members in these proceedings. It also noted that the failure to strictly observe such time-limits can have an impact upon the fairness and the orderly conduct of the proceedings. However, having thoroughly examined the matter, and in the light of the particular time-limits concerned and potential prejudice that might be involved, the Division decided nevertheless to consider the appellees’ submissions filed by the United States and Canada.

 

W.2.6A.11 China — Auto Parts, para. 9
(WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R)

 

By letter dated 17 September 2008, China requested authorization from the Appellate Body to correct two clerical errors in its Notice of Appeal, pursuant to Rule 18(5) of the Working Procedures. On 17 September 2008, the Appellate Body Division hearing the appeal invited the European Communities, the United States, Canada, and the third participants, to comment on China’s request. No objections to China’s request were received and, on 19 September 2008, the Division authorized China to correct the clerical errors in its Notice of Appeal.

 
W.2.7 Rule 20 — Notice of Appeal     back to top

W.2.7.1 GENERAL

 

W.2.7.1.1 US — Countervailing Measures on Certain EC Products, para. 62
(WT/DS212/AB/R)

 

… [we] have underscored the important balance that must be maintained between the right of Members to exercise the right of appeal meaningfully and effectively, and the right of appellees to receive notice through the Notice of Appeal of the findings under appeal, so that they may exercise their right of defence effectively. Hence, we disagree with the contention of the United States here that the Notice of Appeal “serves a limited purpose” as “simply a formal trigger for initiating the appeal”. Indeed, if this were the only objective of the notice, our Working Procedures would have included only the first paragraph of Rule 20, which refers to commencement of an appeal through written notification to the Dispute Settlement Body and Appellate Body Secretariat. However, Rule 20 also prescribes additional requirements for commencing an appeal; it provides that the Notice of Appeal must include “a brief statement of the nature of the appeal, including the allegations of errors in the issues of law covered in the panel report and legal interpretations developed by the panel”. The notification under Rule 20(1) serves as the “trigger” to which the United States refers. The additional requirements under Rule 20(2) serve to ensure that the appellee also receives notice, albeit brief, of the “nature of the appeal” and the “allegations of errors” by the panel.

 

W.2.7.1.2 US — Offset Act (Byrd Amendment), para. 200
(WT/DS217/AB/R, WT/DS234/AB/R)

 

… the Notice of Appeal “serve[s] to ensure that the appellee also receives notice, albeit brief, of the ‘nature of the appeal’ and the ‘allegations of errors’ by the panel”. Generic statements such as that relied upon by the United States cannot serve to give the appellees adequate notice that they will be required to defend against a claim that the Panel exceeded its terms of reference. This is particularly so for procedural errors; it can be especially difficult to discern a claim of procedural error by a panel from general references to panel findings or from extracts of a panel report, because allegations of procedural error by a panel may not necessarily be raised until the appellate stage.

 

W.2.7.1.3 US — Offset Act (Byrd Amendment), para. 208
(WT/DS217/AB/R, WT/DS234/AB/R)

 

… we have said, “[a]n objection to jurisdiction should be raised as early as possible” and it would be preferable, in the interests of due process, for the appellant to raise such issues in the Notice of Appeal, so that appellees will be aware that this claim will be advanced on appeal. However, in our view, the issue of a panel’s jurisdiction is so fundamental that it is appropriate to consider claims that a panel has exceeded its jurisdiction even if such claims were not raised in the Notice of Appeal.

 

W.2.7.2 CONTENT. See also Claims and Arguments (C.1)

 

W.2.7.2.1 US — Shrimp, para. 95
(WT/DS58/AB/R)

 

… The Working Procedures for Appellate Review enjoin the appellant to be brief in its notice of appeal in setting out “the nature of the appeal, including the allegations of errors”. We believe that, in principle, the “nature of the appeal” and “the allegations of errors” are sufficiently set out where the notice of appeal adequately identifies the findings or legal interpretations of the Panel which are being appealed as erroneous. The notice of appeal is not expected to contain the reasons why the appellant regards those findings or interpretations as erroneous. The notice of appeal is not designed to be a summary or outline of the arguments to be made by the appellant. The legal arguments in support of the allegations of error are, of course, to be set out and developed in the appellant’s submission.

 

W.2.7.2.2 Chile — Price Band System, para. 182
(WT/DS207/AB/R, WT/DS207/AB/R/Corr.1)

 

In our view, this distinction between claims and legal arguments under Article 6.2 of the DSU is also relevant to the distinction between “allegations of error” and legal arguments as contemplated by Rule 20 of the Working Procedures. Bearing this distinction in mind, we do not agree with Argentina that Chile’s arguments regarding the order of analysis chosen by the Panel amount to a separate “allegation of error” that Chile should have — or could have — included in its Notice of Appeal. In fact, we do not see, nor has Argentina explained, what separate “allegation of error” could have been made, or what legal basis for such “allegation of error” there could have been. Rather than making a separate “allegation of error”, Chile has, in our view, simply set out a legal argument in support of the issues it raised on appeal relating to Article 4.2 of the Agreement on Agriculture and Article II:1(b) of the GATT 1994.

 

W.2.7.3 SUFFICIENCY OF NOTICE OF APPEAL

 

W.2.7.3.1 EC — Bananas III, para. 152
(WT/DS27/AB/R)

 

In our view, the claims of error by the European Communities set out in paragraphs (c) and (d) of the Notice of Appeal do not cover the Panel’s finding in paragraph 7.93 of the Panel Reports. The finding in that paragraph explicitly deals with Ecuador’s right to invoke Article XIII:2 or XIII:4 of the GATT 1994, given that Ecuador acceded to the WTO after the WTO Agreement entered into force and after the tariff quota for the BFA countries had been negotiated and inscribed in the EC Schedule to the GATT 1994. There is no specific mention of this Panel finding in either the Notice of Appeal or in the main arguments of the appellant’s submission by the European Communities. Therefore, Ecuador had no notice that the European Communities was appealing this finding. For these reasons, we conclude that the Panel’s finding in paragraph 7.93 of the Panel Reports should be excluded from the scope of this appeal.

 

W.2.7.3.2 US — Countervailing Measures on Certain EC Products, para. 70
(WT/DS212/AB/R)

 

We observe that, in coming to these conclusions, we have before us a rather unusual example of the “Conclusions and Recommendations” section of a panel report. In most panel reports, the “Conclusions and Recommendations” section is relatively brief, setting out findings in summary fashion. Detailed legal interpretations and reasoning upon which panels rely are usually found only in the “Findings” sections of panel reports. In this case, however, the Panel’s “Conclusions and Recommendations” are more detailed than usual. Paragraphs 8.1(a)-8.1(d) of the Panel Report include, not only the Panel’s findings, but also certain of the reasons leading to those findings. Hence, in this case, it is possible, by reading the “Conclusions and Recommendations” section from the Panel Report, to discern alleged errors of law appealed by the United States. We emphasize, however, that generally, a Notice of Appeal that refers simply to the paragraph numbers found in the “Conclusions and Recommendations” section of a panel report, or that quotes them in full, will be insufficient to provide adequate notice of the allegations of error on appeal, and, hence, will fall short of the requirements set out in Rule 20(2)(d) of the Working Procedures.

 

W.2.7.3.3 US — Upland Cotton, para. 495
(WT/DS267/AB/R)

 

We acknowledge that the wording of paragraph 10 of the United States’ Notice of Appeal (and, in particular, the use of the words “for example”) suggests that the findings listed in this paragraph are simply examples of findings challenged in connection with Article 12.7 of the DSU, and that the United States’ claim of error under Article 12.7 extends to other Panel findings. In other words, paragraph 10 purports to provide an illustrative rather than exhaustive list of the findings that the United States intends to challenge under Article 12.7 of the DSU. However, the fact that paragraph 10 purports to provide an illustrative list is not conclusive as to whether the Notice of Appeal contains a sufficient reference to the Panel’s findings described in paragraph 493 above for us to conclude that these findings are included in the United States’ appeal. The significance of terms such as “for example” is likely to depend on the particular claim in question and the particular context in which the term is used in a given appeal. In our view, the United States’ Notice of Appeal did not provide adequate notice to Brazil, as contemplated by Rule 20(2) of the Working Procedures for Appellate Review (the “Working Procedures”), that the United States intended to make a claim of error under Article 12.7 of the DSU with respect to the Panel’s findings described in paragraph 493 above. We therefore decline to rule on these findings in connection with Article 12.7 of the DSU.

 

W.2.7.3.4 EC — Export Subsidies on Sugar, para. 344
(WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R)

 

In its Notice of Appeal, the European Communities “seeks review” of six “conclusion[ s]” and “related legal findings and interpretations” set out in certain specified paragraphs of the Panel Reports. The European Communities summarizes the substance of each contested conclusion and the related legal findings and interpretations. The Notice of Appeal also contains a list of the legal provisions of the covered agreements that the Panel is alleged to have erred in interpreting or applying. In our view, the Notice of Appeal gives adequate notice to the Complaining Parties of the content of its appeal so as to allow them to make a proper defence, as required by Rule 20(2)(d) of the Working Procedures.

 

W.2.7.3.5 US — Countervailing Duty Investigation on DRAMS, para. 97
(WT/DS296/AB/R)

 

Korea alleges that the United States’ Notice of Appeal does not identify the alleged errors in the issues of law covered in the Panel Report and legal interpretations developed by the Panel. We disagree. Although Korea is correct that the United States’ Notice of Appeal simply tracks the Panel’s finding, nevertheless, the Notice of Appeal states that the alleged error of the Panel is the finding that Korea’s request for consultations provides sufficient indication of the legal basis for the complaint; it mentions that Article 4.4 of the DSU is the relevant legal provision, and it indicates the paragraphs of the Panel Report where this finding is made. Thus, the United States’ Notice of Appeal provides adequate notice to Korea of the “nature of the appeal” in order to allow it to know the case to which it must respond. In our view, this is sufficient, in this case, for purposes of Rule 20(2)(d) of the Working Procedures.

 

W.2.7.3.6 EC — Bananas III (Article 21.5 — Ecuador II) / EC — Bananas III (Article 21.5 — US), paras. 280-283
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1, WT/DS27/AB/RW/USA/Corr.1)

 

Rule 20(2)(d) does not stipulate what consequences flow from a failure to meet its requirements. In assessing the potential consequences, we are mindful of the due process function that this Rule fulfils. The Appellate Body recognized in US — Countervailing Measures on Certain EC Products:

 

… the important balance that must be maintained between the right of Members to exercise the right of appeal meaningfully and effectively, and the right of appellees to receive notice through the Notice of Appeal of the findings under appeal, so that they may exercise their right of defence effectively.

 

The Appellate Body stated in that case that the requirements of Rule 20(2) “serve to ensure that the appellee also receives notice, albeit brief, of the ‘nature of the appeal’ and the ‘allegations of errors’ by the panel”. The Appellate Body held, in Japan — Apples, that “an evaluation of the sufficiency of a Notice of Appeal must examine whether the appellee received notice therein of the issues to be argued on appeal”.

 

In keeping with this approach, we assess, in the present case, whether the United States was put on notice of the alleged errors of law and legal interpretations in the US Panel Report by the European Communities’ Notice of Appeal. …

 

… We therefore consider that the United States was in the position to “know the case [it had] to meet”, and was thus placed on notice of the issues raised in the European Communities’ Notice of Appeal. The formal defects in the Notice of Appeal thus do not give rise to procedural detriment of the kind that would warrant the dismissal of the European Communities’ appeal. We therefore find that the deficiencies in the European Communities’ Notice of Appeal do not lead to dismissal of the European Communities’ appeal.

 

W.2.7.4 AMENDMENT. See also Working Procedures for Appellate Review, Rule 30 — Withdrawal, Withdrawal and re-filing of Notice of Appeal (W.2.13.1)

 

W.2.7.4.1 US — Countervailing Measures on Certain EC Products, para. 52
(WT/DS212/AB/R)

 

On 10 September 2002, the European Communities filed a Request for a Preliminary Ruling (the “Request”), alleging that the United States’ Notice of Appeal “is manifestly not in conformity with Rule 20(2)(d) of the Working Procedures for Appellate Review” because it “fails to identify the findings or the legal interpretations that it considers to be erroneous”. The European Communities argued that “[a]s a consequence, the European Communities is unable to prepare its response to the appeal.” The European Communities asked us to “order the United States, pursuant to Rule 16(1) of the Working Procedures, immediately to file further and better particulars to its notice of appeal identifying the precise legal findings and legal interpretations that it is challenging”.

 

W.2.7.4.2 US — Countervailing Measures on Certain EC Products, para. 64
(WT/DS212/AB/R)

 

In conducting our analysis, we will examine both the Notice of Appeal and the letter of 13 September 2002 supplementing the Notice of Appeal. Although the Working Procedures do not expressly provide for the filing of clarifications or further particulars or supplementary or amended Notices of Appeal, we consider it appropriate, in the particular circumstances of this case, to examine both documents with a view to giving “full meaning and effect to the right of appeal”. We note in particular that the additional document was filed by the United States in response to our invitation to do so, based in part on a request for additional particulars filed by the European Communities. Moreover, the additional document was filed shortly after the filing of the Notice of Appeal (three days). Finally, we note that the European Communities referred to both the Notice of Appeal and the letter of 13 September 2002 in its arguments on this issue.

 

W.2.7.5 ARTICLE 11 OF THE DSU — ALLEGATION OF THE PANEL’S FAILURE TO OBJECTIVELY ASSESS. See also Standard of Review, Article 11 of the DSU (S.7.2-8)

 

W.2.7.5.1 US — Countervailing Measures on Certain EC Products, para. 74
(WT/DS212/AB/R)

 

… A claim of error by a panel under Article 11 of the DSU is possible only in the context of an appeal. By definition, this claim will not be found in requests for establishment of a panel, and panels therefore will not have referred to it in panel reports. Accordingly, if appellants intend to argue that issue on appeal, they must refer to it in Notices of Appeal in a way that will enable appellees to discern it and know the case they have to meet.

 

W.2.7.5.2 Japan — Apples, paras. 126-127
(WT/DS245/AB/R)

 

By referring to the Panel’s alleged failure to comply with Article 11 of the DSU only in the context of Article 2.2, Japan did not enable the United States to “know the case [it had] to meet” as to the Article 11 claim related to Article 5.1 of the SPS Agreement. The Appellate Body has consistently emphasized that due process requires that a Notice of Appeal place an appellee on notice of the issues raised on appeal. It is this concern with due process, reflected in Rule 20 of the Working Procedures, that underlay the Appellate Body’s ruling on the sufficiency of the Notice of Appeal in US — Countervailing Measures on Certain EC Products.

 

… the Appellate Body determined in US — Countervailing Measures on Certain EC Products that Article 11 claims are distinct from those raised under substantive provisions of other covered agreements. It follows from this distinction that notice of an Article 11 challenge cannot be “assumed” merely because there is a challenge to a panel’s analysis of a substantive provision of a WTO agreement. Rather, an Article 11 claim constitutes a “separate ‘allegation of error’ ” that must be included in a Notice of Appeal. We therefore reject Japan’s assertion that an Article 11 challenge is only a “legal argument” underlying the issues raised on appeal.

 

W.2.7.5.3 US — Corrosion-Resistant Steel Sunset Review, footnote 60 to para. 71
(WT/DS244/AB/R)

 

We have already held that a claim, by an appellant, that a panel erred under Article 11 of the DSU, and a request for a finding to this effect, must be included in the Notice of Appeal, and clearly articulated and substantiated in an appellant’s submission with specific arguments. …

 

W.2.7.5.4 US — Steel Safeguards, paras. 498-499
(WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R)

 

A challenge under Article 11 of the DSU must not be vague or ambiguous. On the contrary, such a challenge must be clearly articulated and substantiated with specific arguments. An Article 11 claim is not to be made lightly, or merely as a subsidiary argument or claim in support of a claim of a panel’s failure to construe or apply correctly a particular provision of a covered agreement. A claim under Article 11 of the DSU must stand by itself and be substantiated, as such, and not as subsidiary to another alleged violation.

 

The United States’ arguments on Article 11 of the DSU are mentioned only in passing in its appellant’s submission. Nowhere do we find a clearly articulated claim or specific arguments that would support such a claim. Moreover, the United States did not clarify its challenge under Article 11 of the DSU during the oral hearing. In sum, the United States has not substantiated its claim that the Panel acted inconsistently with Article 11 of the DSU, and this claim must therefore fail.

 

W.2.7.5.5 Canada — Wheat Exports and Grain Imports, paras. 176-177
(WT/DS276/AB/R)

 

We agree with Canada that [the United States’ claim that the Panel did not examine the measure in its entirety] fits more properly under Article 11 of the DSU [than under Article XVII:1 of the GATT 1994]. The Appellate Body has stated previously that the measure at issue (and the claims made by the complaining Member) make up the “matter referred to the DSB” for the purpose of Article 7 of the DSU. In this sense, the United States’ argument that the Panel did not examine the measure in its entirety relates to the Panel’s examination of the “matter”. Article 11 of the DSU sets out the duties of a panel, including that it “should make an objective assessment of the matter before it” (emphasis added). Therefore, as we see it, the United States’ allegation that the Panel did not examine the measure in its entirety amounts to an allegation that the Panel did not “make an objective assessment of the matter” under Article 11 of the DSU.

 

Although an appellant is free to determine how to characterize its claims on appeal, at the same time due process requires that the legal basis of a claim be sufficiently clear to allow an appellee to respond effectively. This is especially the case when the claim is an allegation that the panel did not make an objective assessment of the matter as required by Article 11 of the DSU because, by definition, such a claim will not be found in the request for the establishment of the panel and, therefore, the panel will not have referred to it in the panel report.

 

W.2.7.5.6 US — Upland Cotton, para. 398
(WT/DS267/AB/R)

 

In its opening statement delivered at the oral hearing, the United States confirmed that it has not made an Article 11 claim in this appeal. Rather, the United States claims that the Panel erred in its interpretation of Article 6.3(c) of the SCM Agreement and in applying this interpretation to the facts in this dispute. The United States also requests us not to dismiss certain of its arguments as requested by Brazil. Under these circumstances, there is no need for us to rule that the United States makes no Article 11 claim. We also refrain from ruling on whether the Panel complied with Article 11 of the DSU. Moreover, we decline to dismiss the United States’ arguments that Brazil lists in Annex A to its appellee’s submission on the basis that an Article 11 claim was not properly set out by the United States.

 

W.2.7.5.7 EC — Bananas III (Article 21.5 — Ecuador II) / EC — Bananas III (Article 21.5 — US), para. 229
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1, WT/DS27/AB/RW/USA/Corr.1)

 

Making reference to Article 11 of the DSU, the European Communities further alleges that the Panel failed to provide any justification for rejecting its claim based on the principle of good faith. The United States responds that this claim is outside the scope of this appeal because the European Communities’ Notice of Appeal does not contain a reference to Article 11 of the DSU. We note that the European Communities clarified at the oral hearing that it was not advancing a claim under Article 11 of the DSU. Therefore, we make no finding in respect to that provision.

 

W.2.7.5.8 EC — Bananas III (Article 21.5 — Ecuador II) / EC — Bananas III (Article 21.5 — US), para. 259
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1, WT/DS27/AB/RW/USA/Corr.1)

 

With respect to the European Communities’ mention of Article 11 of the DSU, we note that the European Communities clarified, at the oral hearing, that it was not invoking Article 11 as the basis of a separate claim. The European Communities explained that, rather, it made reference to Article 11 of the DSU as a supporting argument in the context of allegations of violation of other provisions of the GATT 1994 or the DSU. We also note that Article 11 has not been listed by the European Communities in its Notice of Appeal. In these circumstances, we make no finding with respect to Article 11 of the DSU.

 
W.2.7A Rule 21 — Appellant’s submission     back to top

W.2.7A.1 Japan — DRAMs (Korea), paras. 145-146
(WT/DS336/AB/R, WT/DS336/AB/R/Corr.1)

 

Korea contends that Japan’s appellant’s submission does not satisfy the requirements of Rule 21(2) of the Working Procedures and the requirements of due process. Korea asserts, in particular, that it had “not been given adequate notice of the nature of Japan’s arguments or an adequate opportunity to refute them”.

 

Japan provides extensive arguments, in its appellant’s submission, to support its assertion that the Panel’s review of the JIA’s determination of entrustment or direction is erroneous. As we see it, a careful reading of Japan’s appellant’s submission should have indicated to Korea that these arguments are also relevant with respect to the Panel’s review of the JIA’s benefit determination. Therefore, in our view, Japan’s appellant’s submission satisfies the requirements of Rule 21(2) of the Working Procedures and of due process.

 

W.2.7A.2 US — Stainless Steel (Mexico), footnote 16 to para. 4
(WT/DS344/AB/R)

 

… Along with its appellant’s submission, which it filed in Spanish, Mexico provided a courtesy English translation and an English executive summary of its appellant’s submission. On 8 February 2008, Mexico provided an executive summary of its appellant’s submission in Spanish to the Appellate Body and to the United States and the third participants. In view of the fact that Mexico filed the appellant’s submission in Spanish and the executive summary in English on the due date, and that the Spanish executive summary was filed after the deadline for filing an appellant’s submission, the Appellate Body Division hearing the appeal informed the participants and the third participants that it considered the Spanish version of the executive summary to be a courtesy translation.

 
W.2.7B Rule 22 — Appellee’s submission     back to top

W.2.7B.1 Canada — Wheat Exports and Grain Imports, paras. 162-163 and footnote 190
(WT/DS276/AB/R)

 

Canada states that it would welcome “guidance” from the Appellate Body as to whether a conditional request to complete the analysis of a particular issue should be raised in an appellee’s submission filed pursuant to Rule 22 of the Working Procedures, or in an other appellant’s submission filed pursuant to Rule 23. …

 

As we have not reversed the Panel’s interpretation of subparagraph (b) of Article XVII:1, the condition on which Canada’s request to complete the analysis is made has not been satisfied. … In the circumstances of this appeal, it is neither necessary nor appropriate for us to provide “guidance” on the issue of how conditional requests to complete the analysis are properly brought before the Appellate Body.190

 
W.2.8 Rule 23 — Multiple appeals — (cross appeal).
See also Working Procedures for Appellate Review, Rule 20 — Notice of Appeal (W.2.7); Working Procedures for Appellate Review, Rule 22 — Appellee’s submission (W.2.7B)     back to top

W.2.8.1 US — Gasoline, p. 12, DSR 1996:I, p. 3 at 11
(WT/DS2/AB/R)

 

… to deal with those two issues [i.e. the clean air issue and the application of the TBT Agreement], under the circumstances of this appeal, would have required the Appellate Body casually to disregard its own Working Procedures and to do so in the absence of a compelling reason grounded on, for instance, fundamental fairness or force majeure. Venezuela and Brazil could have appealed the Panel’s finding and non-finding on the two matters by taking advantage of Rules 23(1) or 23(4) of the Working Procedures and thereby placing the Appellate Body in a position to dispose of those issues directly in one and the same appellate proceeding.

 

… the route they chose for addressing the two issues in question is not contemplated by the Working Procedures, and therefore, these issues are not properly the subject of this appeal.

 
W.2.9 Rule 24 — Third participants. See also Third Party Rights (T.8); Working Procedures for Appellate Review, Rule 26 — Working schedule (W.2.10); Working Procedures for Appellate Review, Rule 27 — Oral hearing (W.2.11)     back to top

W.2.9.1 Argentina — Footwear (EC), para. 7
(WT/DS121/AB/R)

 

On 19 October 1999, the Appellate Body received a letter from the Government of Paraguay indicating its interest “in attending” the oral hearing in this appeal. On 25 October 1999, the Appellate Body received a second letter from Paraguay clarifying that it was not requesting an opportunity to “make oral arguments or presentations at the oral hearing” as set forth in Rule 27.3 of the Working Procedures. Rather, Paraguay maintained that, as a third party which had notified its interest to the Dispute Settlement Body under Article 10.2 of the DSU, it had the right to “participate passively” in the oral hearing before the Appellate Body in the present dispute. No participant or third participant objected to the participation of Paraguay on a “passive” basis. On 26 October 1999, the Members of the Division hearing this appeal informed Paraguay, the participants and third participants that, having regard to the provisions of Articles 10.2 and 17.4 of the DSU as well as the provisions of Rules 24 and 27 of the Working Procedures, Paraguay would be allowed to attend the oral hearing as a “passive observer”.

 

W.2.9.2 EC — Asbestos, para. 7
(WT/DS135/AB/R)

 

On 21 November 2000, the Appellate Body received a letter from Zimbabwe indicating its interest in attending the oral hearing in this appeal. Zimbabwe participated in the proceedings before the Panel as a third party which had notified its interest to the DSB under Article 10.2 of the DSU, but it did not file a third participant’s submission in the appeal. No participant or third participant objected to Zimbabwe’s request. On 15 December 2000, the Members of the Division hearing this appeal informed Zimbabwe, the participants and third participants, that Zimbabwe would be allowed to attend the oral hearing as a passive observer.

 

W.2.9.3 US — Lamb, paras. 8-9
(WT/DS177/AB/R, WT/DS178/AB/R)

 

On 26 February 2001, the Appellate Body received letters from Canada and Japan indicating that they would not be filing written submissions in this appeal. Canada stated that it “reserve[d] the right to intervene, as appropriate, during the oral hearing” and Japan indicated that it wished “to reserve its right to present its views at the oral hearing”. On 6 March 2001, the Appellate Body Secretariat replied to Canada and Japan that the Division hearing this appeal wished to have clarification as to whether Canada and Japan wanted to attend the oral hearing simply as “passive observers” or to participate actively in the oral hearing. By their letters dated 9 March 2001, Canada stated that it wished to attend the oral hearing as a “passive observer”, while Japan stated that it “would like to hear the arguments made by the parties to the dispute, and to intervene when necessary and [when] given an opportunity to do so by the Appellate Body”.

 

On 9 March 2001, the Appellate Body Secretariat informed the participants and third participants that the Division hearing this appeal was “inclined to allow Canada and Japan to attend the oral hearing as passive observers, if none of the participants or third participants object”. No such objection was received. On 14 March 2001, the Division hearing this appeal informed Canada, Japan, the participants and the European Communities, that Canada and Japan would be allowed to attend the oral hearing as passive observers, that is, to hear the oral statements and responses to questioning by Australia, the European Communities, New Zealand and the United States.

 

W.2.9.4 US — Shrimp (Article 21.5 — Malaysia), footnote 16 to para. 10
(WT/DS58/AB/RW)

 

Pursuant to Rule 24 of the Working Procedures, Ecuador, a third party in the proceedings before the Panel, did not file a third participant’s submission, but requested permission to attend the oral hearing as a “passive observer”. After consulting the participants and third participants, the Division hearing this appeal granted Ecuador permission to attend the oral hearing in this capacity.

 

W.2.9.5 India — Autos, paras. 12-13
(WT/DS146/AB/R, WT/DS175/AB/R)

 

On 25 February 2002, the Appellate Body received a letter from Japan indicating that Japan would not be filing a written submission in this appeal, but that Japan wished to attend the oral hearing. By letter dated 27 February 2002, the Appellate Body Secretariat informed Japan, the participants and the third participant that the Division hearing this appeal was “inclined to allow Japan to attend the oral hearing as a passive observer, if none of the participants or third participants object”. On 1 March 2002 and 4 March 2002, respectively, the Appellate Body received written responses from the European Communities and the United States.

 

Taking account of the views expressed by the European Communities and the United States, the Division on 5 March 2002 informed Japan, the participants, and the third participant, that although Japan had not filed a written submission as a third participant, Japan would be allowed to attend the oral hearing as a passive observer, that is, to attend the oral hearing and hear the oral statements and responses to questioning by the participants and the third participant in this appeal.

 

W.2.9.6 Chile — Price Band System, para. 6
(WT/DS207/AB/R, WT/DS207/AB/R/Corr.1)

 

On 19 July 2002, the Appellate Body received communications from Japan and Nicaragua stating that they wished to attend the oral hearing in this appeal, although neither wished to file a written submission in accordance with Rule 24 of the Working Procedures. On 22 July 2002, the Appellate Body notified the participants and third participants that it was inclined to allow Japan and Nicaragua to attend the oral hearing as passive observers, if none of the participants or other third participants objected. No participant or third participant objected to Japan and Nicaragua attending the oral hearing. However, the European Communities considered that Japan and Nicaragua should be allowed to attend the oral hearing as third participants and not as passive observers. On 30 July 2002, the participants and third participants were informed that Japan and Nicaragua would be allowed to attend the oral hearing as passive observers.

 

W.2.9.7 EC — Sardines, para. 18
(WT/DS231/AB/R)

 

On 23 July 2002, we received a letter from Colombia indicating that, although it would not file a third participant’s submission, it had an interest in attending the oral hearing in this appeal. Colombia had participated in the proceedings before the Panel as a third party which had notified its interest to the DSB under Article 10.2 of the DSU. By letter of 7 August 2002, we informed the participants and third participants that we were inclined to allow Colombia to attend the oral hearing as a passive observer, and to notify us if they had any objection. The European Communities had no objection to Colombia attending the oral hearing as a third participant, but did object to Colombia attending as a passive observer. Ecuador had no objection to Colombia attending the hearing, but found there was no legal basis to apply a passive observer status and deny them the right to attend as a third participant. On 9 August 2002, we informed the participants and third participants that Colombia would be permitted to attend the oral hearing as a passive observer.

 

W.2.9.8 EC — Tariff Preferences, para. 7
(WT/DS246/AB/R)

 

… on 2 February 2004, Brazil notified its intention to make a statement at the oral hearing as a third participant, and Mauritius notified its intention to appear at the oral hearing as a third participant. Finally, on 2 February 2004, El Salvador, Guatemala, Honduras, and Nicaragua jointly notified their intention to make a statement at the oral hearing as third participants. On 4 February 2004, Cuba notified its intention to appear at the oral hearing as a third participant. By letter dated 16 February 2004, Pakistan submitted a request to make a statement at the oral hearing. No participant objected to Pakistan’s request, which was authorized by the Division hearing the appeal on 18 February 2004.

 

W.2.9.9 US — Softwood Lumber VI (Article 21.5 — Canada), para. 14 and footnote 27
(WT/DS277/AB/RW, WT/DS277/AB/RW/Corr.1)

 

In its third participant’s submission, the European Communities requested the Division hearing this appeal to allow the third participants additional time to make their presentations at the oral hearing. The European Communities based this request on “the particularly complex context of this dispute and the importance of factual issues” and the need for the European Communities to have time to reflect on the United States’ appellee’s submission. The participants and third participants were given an opportunity to comment on this request27 and were then informed, by letter dated 21 February 2006, that the Division had decided to allow 10 minutes to the third participants to deliver their oral presentations.

 

W.2.9.10 US — Zeroing (EC), footnote 16 to para. 4
(WT/DS294/AB/R, WT/DS294/AB/R/Corr.1)

 

… Concerning the timing of its submission, Japan stated that, given that it has brought its own dispute regarding the United States’ zeroing methodology (US — Zeroing (Japan), WT/DS322), “its interests in this appeal are, essentially, those of an appellant, even though it is a third participant”. Japan went on to say that it was, therefore, taking “the unusual step of filing its third participant’s submission on the same day as the appellant, that is, considerably ‘within 25 days after the date of filing of the Notice of Appeal’ ”. …

 

W.2.9.11 US — Shrimp (Thailand) / US — Customs Bond Directive, footnote 36 to para. 19
(WT/DS343/AB/R, WT/DS345/AB/R)

 

… On 26 May 2008, the participants and the third participants were provided an English translation, prepared by the WTO Language Services and Documentation Division, of Chile’s third participant’s submission, filed originally in Spanish on 20 May 2008.

 
W.2.10 Rule 26 — Working schedule     back to top

W.2.10.1 EXTENSION OF DEADLINE FOR SUBMISSIONS OF PARTICIPANTS OR THIRD PARTICIPANTS

 

W.2.10.1.1 EC — Bananas III, para. 3
(WT/DS27/AB/R)

 

… In accordance with Rule 16(2) of the Working Procedures, and at the request of the Complaining Parties, the Appellate Body granted a two-day extension for the filing of appellees’ and third participants’ submissions. …

 

W.2.10.1.2 Guatemala — Cement I, para. 4
(WT/DS60/AB/R)

 

… On 14 August 1998, Guatemala filed an appellant’s submission drafted in Spanish. On 31 August 1998, Mexico filed an appellee’s submission also drafted in Spanish. In order to ensure that the third participant would have time to prepare its submission after receiving an English version of the appellant’s submission, the Appellate Body granted the United States additional time to file its third participant’s submission. The United States filed that submission on 14 September 1998. By our ruling of 31 August 1998, we declined Mexico’s request that its appellee’s submission be withheld from Guatemala and the United States until the end of the time-period allowed to the United States to file its third participant’s submission. …

 

W.2.10.1.3 EC — Bed Linen, footnote 12 to para. 6
(WT/DS141/AB/R)

 

Following a joint request by the European Communities and India, the Division hearing the appeal decided on 12 December 2000, pursuant to Rule 16(2) of the Working Procedures and in the light of the “exceptional circumstances” in this appeal, to extend the time-period for filing the appellee’s and third participant’s submissions from 2 January 2001 to 8 January 2001.

 

W.2.10.1.4 US — Softwood Lumber IV, paras. 6-7 and footnotes 16-17
(WT/DS257/AB/R)

 

… On 3 October 2003, for scheduling reasons, the United States withdrew its Notice of Appeal pursuant to Rule 30 of the Working Procedures, conditional on its right to re-file the Notice of Appeal at a later date. On 21 October 2003, the United States re-filed a substantively identical Notice of Appeal pursuant to Rule 20 of the Working Procedures. On that same day, the United States filed its appellant’s submission in accordance with the Working Schedule drawn up by the Division for this appeal.

 

On 23 October 2003, the European Communities, a third participant in these proceedings, requested the Appellate Body to modify the Working Schedule.16 On 24 October 2003, the Appellate Body declined the European Communities’ request, noting that extending the date for the filing of third participants’ submissions would significantly reduce the time available for the Division to consider carefully the arguments raised therein as well as the time available to the participants to respond to those arguments.17 The Division also observed that the new Notice of Appeal filed by the United States on 21 October 2003 was, in all relevant respects, identical to the one submitted on 2 October 2003, and that the critical time-period for third participants and appellees to prepare their responses to arguments raised by appellants and other appellants is the period between the receipt of the appellant’s or other appellant’s submissions, which contains the appellants’ arguments, and the due date for the filing of the third participants’ submissions. The Division noted that the time-period between the receipt of the appellant’s submission and the due date for third participants’ submissions in this case was the same as it would have been, had the Notice of Appeal of 21 October 2003 been filed 10 days before the date of the appellant’s submission, as normally occurs.

 

W.2.10.1.5 Chile — Price Band System (Article 21.5 — Argentina), para. 11 and footnote 30
(WT/DS207/AB/RW)

 

… on 9 February 2007, the Division received a letter from Argentina requesting, pursuant to Rule 16(2) of the Working Procedures, to change the date scheduled for filing its other appellant’s submission from 20 February to 26 February 2007. Argentina explained that filing a submission on 20 February would be “highly problematic for Argentina” because the oral hearing in another appellate proceeding, in which Argentina was also a participant, would be held on 19 February 2007. The Appellate Body invited Chile and the third participants to comment on Argentina’s request. Neither Chile nor any third participant objected to Argentina’s request, but Chile and the United States requested extensions of the deadlines for filing their submissions in the event that the Division granted Argentina’s request.30 By letter dated 15 February 2007, the Division informed the participants and the third participants that it had decided to change the date for filing Argentina’s other appellant’s submission from 20 February to 23 February 2007, and the date for filing Chile’s appellee’s submission and the third participants’ submissions from 2 March to 6 March 2007.

 

W.2.10.1.6 US — Upland Cotton (Article 21.5 — Brazil), footnote 35 to para. 13
(WT/DS267/AB/RW)

 

… After consultation with the participants, the Appellate Body Division hearing this appeal allocated additional time for filing the appellees’ submissions and the third participants’ submissions and notifications, pursuant to Rules 16, 22, 23, 24, and 26 of the Working Procedures.

 

W.2.10.1.7 US — Shrimp (Thailand) / US — Customs Bond Directive, paras. 17-18
(WT/DS343/AB/R, WT/DS345/AB/R)

 

By letter dated 22 April 2008, India requested the Division to extend the time period for filing its appellant’s submission by one working day, that is, from 24 April to 25 April 2008, pursuant to Rule 16(2) of the Working Procedures, due to certain unforeseen developments. On the same day, the Division invited the participants and third participants to comment on India’s request by 5 p.m. on 23 April 2008. Two comments were received: Thailand did not object to India’s request; and the United States submitted that it would accept India’s request provided that the filing dates applicable to the United States’ submissions would be adjusted accordingly.

 

Having carefully considered India’s request and the views expressed by the United States and Thailand, the Division granted India time until 1 p.m., Geneva time, on 25 April 2008 to file its appellant’s submission. Further, in view of the submission made by the United States, the Division also granted the United States time until 1 p.m., Geneva time, on 20 May 2008 to file its appellee’s submissions. The same extension was also granted to India and to Thailand to file their appellee’s submissions and to those third participants wishing to file a submission pursuant to Rule 24(1) or a notification pursuant to Rule 24(2) of the Working Procedures.

 

W.2.10.1.8 US — Continued Suspension / Canada — Continued Suspension, footnote 66 to para. 27
(WT/DS320/AB/R, WT/DS321/AB/R)

 

Pursuant to Rules 22 and 23(4) of the Working Procedures. After consultation with the participants, the Division hearing this appeal allocated additional time for filing the appellees’ submissions and the third participants’ submissions and notifications, pursuant to Rules 16, 22, 23, 24, and 26 of the Working Procedures.

 

W.2.10.2 EXTENSION OF DEADLINE FOR CIRCULATION OF APPELLATE BODY REPORT

 

W.2.10.2.1 EC — Hormones (Communication from the Appellate Body — WT/DS26/11, WT/DS48/9)

 

… I am writing to inform you that the Appellate Body will not be able to circulate its Report in this appeal by 23 December 1997, due to the exceptional nature of this case, the time needed for translation and the intervention of the Christmas holiday period. As a result, the Appellate Body Report in this appeal will be circulated to WTO Members by Friday, 16 January 1998.

 

W.2.10.2.2 US — Lead and Bismuth II, para. 8
(WT/DS138/AB/R)

 

On 19 March 2000, Mr Christopher Beeby, a Member of the Division hearing this appeal, passed away. … Due to these same extraordinary circumstances, the participants in this appeal, the European Communities and the United States, agreed to a two week extension of the 90-day time limit for the consideration of this appeal, and thus agreed that this Report should be circulated no later than 10 May 2000.

 

W.2.10.2.3 EC — Asbestos, para. 8
(WT/DS135/AB/R)

 

On 20 December 2000, the Appellate Body informed the DSB that, due to the exceptional workload of the Appellate Body, and in light of the agreement of the participants, Canada and the European Communities, the Appellate Body Report in this appeal would be circulated to WTO Members no later than Monday, 12 March 2001.

 

W.2.10.2.4 Thailand — H-Beams, para. 7
(WT/DS122/AB/R)

 

… On 20 December 2000, the Appellate Body informed the DSB that, due to the exceptional workload of the Appellate Body, and in light of the agreement of the participants in this appeal, the Appellate Body Report in the appeal would be circulated to Members of the WTO no later than 12 March 2001.

 

W.2.10.2.5 US — Upland Cotton, para. 8
(WT/DS267/AB/R)

 

After consultation with the Appellate Body Secretariat, Brazil and the United States noted, in letters filed on 10 December 2004, that it would not be possible for the Appellate Body to circulate its Report in this appeal within the 90-day time limit referred to in Article 17.5 of the DSU. Brazil and the United States agreed that additional time was needed for several reasons: the issues arising in this appeal were particularly numerous and complex compared to prior appeals, which increased the burden on the Appellate Body and WTO translation services; WTO translation services were unavailable during the WTO holiday period; and the Appellate Body was likely to be considering two or three other appeals during the same period. Brazil and the United States accordingly confirmed that they would deem the Appellate Body Report in this proceeding, issued no later than 3 March 2005, to be an Appellate Body Report circulated pursuant to Article 17.5 of the DSU.

 

W.2.10.2.6 US — Upland Cotton (Article 21.5 — Brazil), para. 14
(WT/DS267/AB/RW)

 

After consultation with the Appellate Body Secretariat, Brazil and the United States agreed, in a joint letter dated 19 March 2008, that it would not be possible for the Appellate Body to circulate its Report in this appeal within the 90-day time-limit referred to in Article 17.5 of the DSU. Brazil and the United States agreed that additional time was needed because of the complexity of the issues arising in the appeal and the difficulties encountered by the Appellate Body in scheduling the oral hearing. Brazil and the United States accordingly confirmed that they would deem the Appellate Body Report in these proceedings, issued no later than 2 June 2008, to be an Appellate Body Report circulated pursuant to Article 17.5 of the DSU.

 

W.2.10.2.7 US — Continued Suspension / Canada — Continued Suspension, para. 29
(WT/DS320/AB/R, WT/DS321/AB/R)

 

After consultation with the Appellate Body Secretariat, Canada, the European Communities, and the United States each agreed that it would not be possible for the Appellate Body to circulate its Reports in these appeals within the 90-day time limit referred to in Article 17.5 of the DSU. Canada, the European Communities, and the United States agreed that additional time was needed because of the preliminary procedural issue arising in these proceedings, the size of the Panel record, the number and complexity of the issues appealed, and the fact that there was another appellate proceeding running simultaneously. Accordingly, Canada, the European Communities, and the United States each confirmed that it would deem the Appellate Body Reports in these proceedings, issued no later than 16 October 2008, to be Appellate Body reports circulated pursuant to Article 17.5 of the DSU.

 
W.2.11 Rule 27 — Oral hearing. See also Business Confidential Information (B.4); Confidentiality (C.6)     back to top

W.2.11.1 CHANGE OF DATE

 

W.2.11.1.1 EC — Bananas III, para. 4
(WT/DS27/AB/R)

 

On 10 July 1997, pursuant to Rule 16(2) of the Working Procedures, the Government of Jamaica asked the Appellate Body to postpone the dates of the oral hearing, set out in the working schedule for 21 and 22 July 1997, to 4 and 5 August 1997. This request was not granted as the Appellate Body was not persuaded that there were exceptional circumstances resulting in manifest unfairness to any participant or third participant that justified the postponement of the oral hearing in this appeal.

 

W.2.11.1.2 US — Shrimp (Article 21.5 — Malaysia), para. 11
(WT/DS58/AB/RW)

 

On 13 August 2001, the United States requested that the Division hearing this appeal change the date of the oral hearing set out in the working schedule for this appeal. After inviting the participants to make their views known with respect to this request, the Division ruled that it would not change the date of the oral hearing. Accordingly, the oral hearing in the appeal was held on 4 September 2001. …

 

W.2.11.1.3 US — Softwood Lumber VI (Article 21.5 — Canada), para. 13 and footnote 25
(WT/DS277/AB/RW)

 

On 18 January 2006, the Director of the Appellate Body Secretariat received a letter from the United States requesting to change the date scheduled for the oral hearing in this appeal — 23 February 2006 — on the grounds that “lead counsel for the United States [was] not available on that date, due to a long-established prior commitment”. Neither Canada nor the third participants objected to the United States’ request.25 By letter dated 26 January 2006, the Division informed the participants and the third participants that it had decided to change the date of the oral hearing to 24 February 2006.

 

W.2.11.1.4 US — Softwood Lumber V (Article 21.5 — Canada), para. 9 and footnote 29
(WT/DS264/AB/RW)

 

The oral hearing in this appeal was held on 24 June 2006.29

 

W.2.11.2 JOINT ORAL HEARING

 

W.2.11.2.1 US — 1916 Act, para. 8
(WT/DS136/AB/R, WT/DS162/AB/R)

 

The oral hearing in the two appeals was held on 19 July 2000. The participants and third participants presented oral arguments and responded to questions put to them by the Members of the Division hearing the appeals.

 

W.2.11.2.2 US — Continued Suspension / Canada — Continued Suspension, para. 27
(WT/DS320/AB/R, WT/DS321/AB/R)

 

In a letter dated 30 May 2008, the Division noted that, in the interests of “fairness and orderly procedure”, as referred to in Rule 16(1) of the Working Procedures, and in agreement with the participants, the appellate proceedings in respect of the European Communities’ appeal from the Panel Reports in US — Continued Suspension and Canada — Continued Suspension would be consolidated due to the substantial overlap in the content of the disputes. A single Division would hear and decide the appeals, and a single oral hearing would be held by the Division. …

 

W.2.11.3 OPEN ORAL HEARING

 

W.2.11.3.1 US — Continued Suspension / Canada — Continued Suspension, paras. 31-33
(WT/DS320/AB/R, WT/DS321/AB/R)

 

Canada, the European Communities, and the United States requested, on 3 June 2008, that the Division authorize public observation of the oral hearing. They argued that public observation of the oral hearing was not precluded by the DSU, the Working Procedures, or the Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes (the “Rules of Conduct”). The participants proposed various logistical arrangements that would allow public observation, while respecting the confidentiality of any third participants that did not wish to disclose their oral statements or responses to questions. On 4 June 2008, the Division invited the third participants to comment in writing on the participants’ request to open the hearing to public observation. In particular, the Division asked for the third participants’ views on the permissibility of opening the hearing for public observation under the DSU and the Working Procedures, and, if they so wished, on the specific logistical arrangements proposed in the requests. Comments were received, on 12 June 2008, from Australia, Brazil, China, India, Mexico, New Zealand, Norway, and the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu. Australia, New Zealand, Norway, and the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu supported the participants’ request to open the hearing to public observation. Brazil, China, India, and Mexico requested the Appellate Body to deny the participants’ request. According to these third participants, the oral hearing forms part of the proceedings of the Appellate Body and, therefore, is subject to the requirement of Article 17.10 of the DSU that “[t]he proceedings of the Appellate Body shall be confidential”. On 16 June 2008, the Division invited Canada, the European Communities, and the United States to comment on the submissions made by the third participants. Third participants who wished to submit comments on the submissions made by the other third participants were also invited to do so. Additional comments from Canada, the European Communities, and the United States were received on 23 June 2008. On 7 July 2008, the Division held an oral hearing with the participants and third participants, exclusively dedicated to exploring the issues raised by the request of the participants to authorize public observation. The participants and third participants made oral statements and responded to questions from the Division. At the end of the oral hearing, the participants and third participants were invited to submit, by close of business, 8 July 2008, additional comments relating specifically to the technical modalities proposed by the participants for public observation. Comments were received from Brazil, China, India, and Mexico, as well as Canada, the European Communities, and the United States.

 

On 10 July 2008, the Division issued a Procedural Ruling in which it authorized the public observation of the oral hearing and adopted additional procedures for that purpose in accordance with Rule 16(1) of the Working Procedures. The Procedural Ruling is attached as Annex 4 of this Report. Public observation took place via simultaneous closed-circuit television broadcast to a separate room. …

 

The oral hearing took place on 28-29 July 2008. Pursuant to the additional procedures adopted by the Division, Canada, the European Communities, and the United States were authorized to disclose their oral statements and responses to questions. Australia, New Zealand, Norway, and the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu were also authorized to disclose their statements and responses to questions. The oral statements and responses to questions of the other third participants were not subject to observation by the public.

 

W.2.11.3.2 US — Continued Suspension / Canada — Continued Suspension, Annex IV, paras. 3-10
(WT/DS320/AB/R, WT/DS321/AB/R)

 

The participants have different views on the scope of the term “proceedings” in Article 17.10 of the DSU. The European Communities argues that the term “proceedings” in Article 17.10 should be interpreted narrowly as referring to the Appellate Body’s internal work and does not include its oral hearing. The United States refers to the Recommendations by the Preparatory Committee for the WTO. The United States contends that the Preparatory Committee viewed Article 17.10 as focused on the deliberations of the Appellate Body. Canada concedes that the term “proceedings” covers the oral hearing. A similar view has been put forward by Brazil, China, India, and Mexico. We consider the term “proceedings” to mean the entire process by which an appeal is prosecuted, from the initiation of an appeal to the circulation of the Appellate Body report, including the oral hearing. This is also how the Appellate Body understood the term in Canada — Aircraft. Having agreed with this broad interpretation of the term “proceedings”, we now consider the precise meaning and scope of the confidentiality requirement in Article 17.10.

 

The third participants that object to the request to allow public observation argue that the confidentiality requirement in Article 17.10 is absolute and permits of no derogation. We disagree with this interpretation because Article 17.10 must be read in context, particularly in relation to Article 18.2 of the DSU. The second sentence of Article 18.2 expressly provides that “[n]othing in this Understanding shall preclude a party to a dispute from disclosing statements of its own positions to the public”. Thus, under Article 18.2, the parties may decide to forgo confidentiality protection in respect of their statements of position. With the exception of India, the participants and third participants agreed that the term “statements of its own positions” in Article 18.2 extends beyond the written submissions referred to in the first sentence of Article 18.2, and includes oral statements and responses to questions posed by the Appellate Body at the oral hearing. The third sentence of Article 18.2 states that “Members shall treat as confidential information submitted by another Member to the panel or the Appellate Body which that Member has designated as confidential.” This provision would be redundant if Article 17.10 were interpreted to require absolute confidentiality in respect of all elements of appellate proceedings. There would be no need to require, pursuant to Article 18.2, that a Member designate certain information as confidential. The last sentence of Article 18.2 ensures that even such designation by a Member does not put an end to the right of another Member to make disclosure to the public. Upon request, a Member must provide a non-confidential summary of the information contained in its written submissions that it designated as confidential, which can then be disclosed to the public. Thus, Article 18.2 provides contextual support for the view that the confidentiality rule in Article 17.10 is not absolute. Otherwise, no disclosure of written submissions or other statements would be permitted during any stage of the proceedings.

 

In practice, the confidentiality requirement in Article 17.10 has its limits. Notices of Appeal and Appellate Body reports are disclosed to the public. Appellate Body reports contain summaries of the participants’ and third participants’ written and oral submissions and frequently quote directly from them. Public disclosure of Appellate Body reports is an inherent and necessary feature of our rules-based system of adjudication. Consequently, under the DSU, confidentiality is relative and time-bound.

 

In our view, the confidentiality requirement in Article 17.10 is more properly understood as operating in a relational manner. There are different sets of relationships that are implicated in appellate proceedings. Among them are the following relationships. First, a relationship between the participants and the Appellate Body. Secondly, a relationship between the third participants and the Appellate Body. The requirement that the proceedings of the Appellate Body are confidential affords protection to these separate relationships and is intended to safeguard the interests of the participants and third participants and the adjudicative function of the Appellate Body, so as to foster the system of dispute settlement under conditions of fairness, impartiality, independence and integrity. In this case, the participants have jointly requested authorization to forgo confidentiality protection for their communications with the Appellate Body at the oral hearing. The request of the participants does not extend to any communications, nor touches upon the relationship, between the third participants and the Appellate Body. The right to confidentiality of third participants vis-à-vis the Appellate Body is not implicated by the joint request. The question is thus whether the request of the participants to forgo confidentiality protection satisfies the requirements of fairness and integrity that are the essential attributes of the appellate process and define the relationship between the Appellate Body and the participants. If the request meets these standards, then the Appellate Body would incline towards authorizing such a joint request.

 

We note that the DSU does not specifically provide for an oral hearing at the appellate stage. The oral hearing was instituted by the Appellate Body in its Working Procedures, which were drawn up pursuant to Article 17.9 of the DSU. The conduct and organization of the oral hearing falls within the authority of the Appellate Body (compétence de la compétence) pursuant to Rule 27 of the Working Procedures. Thus, the Appellate Body has the power to exercise control over the conduct of the oral hearing, including authorizing the lifting of confidentiality at the joint request of the participants as long as this does not adversely affect the rights and interests of the third participants or the integrity of the appellate process. As we observed earlier, Article 17.10 also applies to the relationship between third participants and the Appellate Body. Nevertheless, in our view, the third participants cannot invoke Article 17.10, as it applies to their relationship with the Appellate Body, so as to bar the lifting of confidentiality protection in the relationship between the participants and the Appellate Body. Likewise, authorizing the participants’ request to forgo confidentiality, does not affect the rights of third participants to preserve the confidentiality of their communications with the Appellate Body.

 

Some of the third participants argued that the Appellate Body is itself constrained by Article 17.10 in its power to authorize the lifting of confidentiality. We agree that the powers of the Appellate Body are themselves circumscribed in that certain aspects of confidentiality are incapable of derogation — even by the Appellate Body — where derogation may undermine the exercise and integrity of the Appellate Body’s adjudicative function. This includes the situation contemplated in the second sentence of Article 17.10, which provides that “[t]he reports of the Appellate Body shall be drafted without the presence of the parties to the dispute and in the light of the information provided and the statements made.” As noted by the participants, the confidentiality of the deliberations is necessary to protect the integrity, impartiality, and independence of the appellate process. In our view, such concerns do not arise in a situation where, following a joint request of the participants, the Appellate Body authorizes the lifting of the confidentiality of the participants’ statements at the oral hearing.

 

The Appellate Body has fostered the active participation of third parties in the appellate process in drawing up the Working Procedures and in appeal practice. Article 17.4 provides that third participants “may make written submissions to, and be given an opportunity to be heard by, the Appellate Body”. In its Working Procedures, the Appellate Body has given full effect to this right by providing for participation of third participants during the entirety of the oral hearing, while third parties meet with panels only in a separate session at the first substantive meeting. Third participants, however, are not the main parties to a dispute. Rather, they have a systemic interest in the interpretation of the provisions of the covered agreements that may be at issue in an appeal. Although their views on the questions of legal interpretation that come before the Appellate Body are always valuable and thoroughly considered, these issues of legal interpretation are not inherently confidential. Nor is it a matter for the third participants to determine how the protection of confidentiality in the relationship between the participants and the Appellate Body is best dealt with. In order to sustain their objections to public observation of the oral hearing, third participants would have to identify a specific interest in their relationship with the Appellate Body that would be adversely affected if we were to authorize the participants’ request — in this case, we can discern no such interests.

 

The request for public observation of the oral hearing has been made jointly by the three participants, Canada, the European Communities, and the United States. As we explained earlier, the Appellate Body has the power to authorize a joint request by the participants to lift confidentiality, provided that this does not affect the confidentiality of the relationship between the third participants and the Appellate Body, or impair the integrity of the appellate process. The participants have suggested alternative modalities that allow for public observation of the oral hearing, while safeguarding the confidentiality protection enjoyed by the third participants. The modalities include simultaneous or delayed closed-circuit television broadcasting in a room separate from the room used for the oral hearing. Finally, we do not see the public observation of the oral hearing, using the means described above, as having an adverse impact on the integrity of the adjudicative functions performed by the Appellate Body.

 

W.2.11.3.3 EC — Bananas III (Article 21.5 — Ecuador II) / EC — Bananas III (Article 21.5 — US), paras. 26, 28-29
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1, WT/DS27/AB/RW/USA/Corr.1)

 

Ecuador, the European Communities, and the United States requested, on 29 August 2008, that the Division authorize public observation of the oral hearing. They submitted that public observation of the oral hearing is not precluded by the DSU, the Working Procedures, or the Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes. The participants expressed a preference for simultaneous closed-circuit television broadcast to a separate room.

 

 

On 18 September 2008, the Division issued a Procedural Ruling in which it authorized the public observation of the oral hearing and adopted additional procedures for that purpose in accordance with Rule 16(1) of the Working Procedures. Notice of the opening of the hearing to public observation and registration instructions were provided on the WTO website.

 

The oral hearing in these appeals was held on 16-17 October 2008. The participants and third participants presented oral arguments (with the exception of Mexico) and responded to questions posed by the Division hearing the appeals. Public observation took place via simultaneous closed-circuit television broadcast to a separate room. Pursuant to the additional procedures adopted by the Division, no third participant requested that its oral statements and responses to questions remain confidential and not be subject to public observation.

 

W.2.11.3.4 EC — Bananas III (Article 21.5 — Ecuador II) / EC — Bananas III (Article 21.5 — US), Annex IV, paras. 4-6
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1, WT/DS27/AB/RW/USA/Corr.1)

 

Similar requests were made in the United States — Continued Suspension of Obligations in the EC — Hormones Dispute and Canada — Continued Suspension of Obligations in the EC — Hormones Dispute appeals, in which the Appellate Body set out its reasoning for granting the requests. The salient reasoning [is set out in paragraphs 3-9 of our procedural ruling in that case].

 

We are not persuaded that there is any basis to depart from this reasoning.

 

The request for public observation of the oral hearing in these disputes has been made jointly by the three participants, Ecuador, the European Communities, and the United States. As we explained in our reasoning in United States — Continued Suspension of Obligations in the EC — Hormones Dispute and Canada — Continued Suspension of Obligations in the EC — Hormones Dispute, the Appellate Body has the power to authorize a joint request by the participants to lift confidentiality, provided that this does not affect the confidentiality of the relationship between the third participants and the Appellate Body, or impair the integrity of the appellate process. There is no reason in this case not to authorize the requests made to us. The participants have suggested alternative modalities that allow for public observation of the oral hearing, while safeguarding the confidentiality protection enjoyed by the third participants. The modalities include simultaneous or delayed closed-circuit television broadcasting in a room separate from the room used for the oral hearing. Finally, we do not see the public observation of the oral hearing, using the means described above, as having an adverse impact on the integrity of the adjudicative functions performed by the Appellate Body.

 

W.2.11.3.5 US — Continued Zeroing, paras. 7-9
(WT/DS350/AB/R)

 

The European Communities and the United States requested, by letters dated 14 and 17 November 2008, respectively, that the Appellate Body Division hearing this appeal authorize public observation of the oral hearing. The European Communities and the United States submitted that public observation of the oral hearing was not precluded by the DSU, the Working Procedures, or the Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes. The participants proposed public observation by means of a simultaneous closed-circuit television broadcast to a separate room, with the transmission being interrupted when any third participant wishing to maintain the confidentiality of its statements took the floor.

 

 

On 28 November 2008, the Division issued a Procedural Ruling in which it authorized the public observation of the oral hearing for the participants and the third participants who so requested, and adopted additional procedures for that purpose in accordance with Rule 16(1) of the Working Procedures. Oral statements and responses to questions by third participants wishing to maintain the confidentiality of their submissions were not subject to public observation.

 

W.2.11.3.6 US — Continued Zeroing, Annex III, paras. 3-9
(WT/DS350/AB/R)

 

We are making the following ruling on the requests of the participants, having carefully considered the comments of the third participants. Article 17.10 must be read in context, particularly in relation to Article 18.2 of the DSU. The second sentence of Article 18.2 expressly provides that “[n]othing in this Understanding shall preclude a party to a dispute from disclosing statements of its own positions to the public”. Thus, under Article 18.2, the parties may decide to forgo confidentiality protection in respect of their statements of position. The third sentence of Article 18.2 states that “Members shall treat as confidential information submitted by another Member to the panel or the Appellate Body which that Member has designated as confidential.” This provision would be redundant if Article 17.10 were interpreted to require absolute confidentiality in respect of all elements of appellate proceedings. There would be no need to require, pursuant to Article 18.2, that a Member designate certain information as confidential. The last sentence of Article 18.2 ensures that even such designation by a Member does not put an end to the right of another Member to make disclosure to the public. Upon request, a Member must provide a non-confidential summary of the information contained in its written submissions that it designated as confidential, which can then be disclosed to the public. Thus, Article 18.2 provides contextual support for the view that the confidentiality rule in Article 17.10 is not absolute. Otherwise, no disclosure of written submissions or other statements would be permitted during any stage of the proceedings.

 

In practice, the confidentiality requirement in Article 17.10 has its limits. Notices of Appeal and Appellate Body reports are disclosed to the public. Appellate Body reports contain summaries of the participants’ and third participants’ written and oral submissions and frequently quote directly from them. Public disclosure of Appellate Body reports is an inherent and necessary feature of our rules-based system of adjudication. Consequently, under the DSU, confidentiality is relative and time-bound.

 

In our view, the confidentiality requirement in Article 17.10 is more properly understood as operating in a relational manner. There are different sets of relationships that are implicated in appellate proceedings. Among them are the following relationships. First, a relationship between the participants and the Appellate Body. Secondly, a relationship between the third participants and the Appellate Body. The requirement that the proceedings of the Appellate Body are confidential affords protection to these separate relationships and is intended to safeguard the interests of the participants and third participants and the adjudicative function of the Appellate Body, so as to foster the system of dispute settlement under conditions of fairness, impartiality, independence and integrity. In this case, the participants have requested authorization to forgo confidentiality protection for their communications with the Appellate Body at the oral hearing. The requests of the participants do not extend to any communications, nor touch upon the relationship, between the third participants and the Appellate Body. The right to confidentiality of third participants vis-à-vis the Appellate Body is not implicated by these requests. The question is thus whether the participants’ requests to forgo confidentiality protection satisfy the requirements of fairness and integrity that are the essential attributes of the appellate process and define the relationship between the Appellate Body and the participants. If the requests meet these standards, then the Appellate Body would incline towards authorizing them.

 

We note that the DSU does not specifically provide for an oral hearing at the appellate stage. The oral hearing was instituted by the Appellate Body in its Working Procedures, which were drawn up pursuant to Article 17.9 of the DSU. The conduct and organization of the oral hearing falls within the authority of the Appellate Body (compétence de la compétence) pursuant to Rule 27 of the Working Procedures. Thus, the Appellate Body has the power to exercise control over the conduct of the oral hearing, including authorizing the lifting of confidentiality at the request of the participants as long as this does not adversely affect the rights and interests of the third participants or the integrity of the appellate process. As we observed earlier, Article 17.10 also applies to the relationship between third participants and the Appellate Body. Nevertheless, in our view, the third participants cannot invoke Article 17.10, as it applies to their relationship with the Appellate Body, so as to bar the lifting of confidentiality protection in the relationship between the participants and the Appellate Body. Likewise, authorizing the participants’ requests to forgo confidentiality does not affect the rights of third participants to preserve the confidentiality of their communications with the Appellate Body.

 

The powers of the Appellate Body are themselves circumscribed in that certain aspects of confidentiality are incapable of derogation — even by the Appellate Body — where derogationmay undermine the exercise and integrity of the Appellate Body’s adjudicative function. This includes the situation contemplated in the second sentence of Article 17.10, which provides that “[t]he reports of the Appellate Body shall be drafted without the presence of the parties to the dispute and in the light of the information provided and the statements made.” Confidentiality of the deliberations is necessary to protect the integrity, impartiality, and independence of the appellate process. In our view, such concerns do not arise in a situation where, following requests from the participants, the Appellate Body authorizes the lifting of the confidentiality of the participants’ statements at the oral hearing.

 

The Appellate Body has fostered the active participation of third parties in the appellate process in drawing up the Working Procedures and in appeal practice. Article 17.4 provides that third participants “may make written submissions to, and be given an opportunity to be heard by, the Appellate Body”. In its Working Procedures, the Appellate Body has given full effect to this right by providing for participation of third participants during the entirety of the oral hearing, while third parties meet with panels only in a separate session at the first substantive meeting. The rights of third participants are distinct from those of the main participants to a dispute. They have a systemic interest in the interpretation of the provisions of the covered agreements that may be at issue in an appeal. Although their views on the questions of legal interpretation that come before the Appellate Body are always valuable and thoroughly considered, these issues of legal interpretation are not inherently confidential. However, it is not for the third participants to determine how the protection of confidentiality in the relationship between the participants and the Appellate Body is best dealt with. We do not consider that the third participants have identified a specific interest in their relationship with the Appellate Body that would be adversely affected if we were to authorize the participants’ requests.

 

The requests for public observation of the oral hearing in this dispute have been made by the European Communities and the United States. As we explained earlier, the Appellate Body has the power to authorize the requests by the participants to lift confidentiality, provided that this does not affect the confidentiality of the relationship between the third participants and the Appellate Body, or impair the integrity of the appellate process. The participants have suggested alternative modalities that allow for public observation of the oral hearing, while safeguarding the confidentiality protection enjoyed by the third participants that seek such protection. The modalities include simultaneous or delayed closed-circuit television broadcasting in a room separate from the room used for the oral hearing. Finally, we do not see the public observation of the oral hearing, using the means described above, as having an adverse impact on the integrity of the adjudicative functions performed by the Appellate Body.

 

W.2.11.3.7 US — Zeroing (EC) (Article 21.5 — EC), paras. 14-15
(WT/DS294/AB/RW, WT/DS294/AB/RW/Corr.1)

 

On 16 and 19 February 2009, respectively, the European Communities and the United States requested the Appellate Body Division hearing this appeal to authorize public observation of the oral hearing. Both participants relied on the reasoning of the Appellate Body in previous cases to authorize public observation of the oral hearing, and expressed a preference for simultaneous closed circuit television broadcast to a separate room. On 20 February 2009, the Division invited the third participants to comment in writing on the requests of the European Communities and the United States, as well as the specific logistical arrangements proposed in the requests. … On 4 March 2009, the Division issued a Procedural Ruling in which it authorized the public observation of the oral hearing and adopted additional procedures on logistical arrangements in accordance with Rule 16(1) of the Working Procedures. Notice of the opening of the hearing to public observation and registration instructions were provided on the WTO website.

 

The oral hearing in this appeal was held on 23-24 March 2009. The participants and third participants were given the opportunity to present oral arguments and respond to questions posed by the Division hearing the appeal. Public observation took place via simultaneous closed-circuit television broadcast to a separate room.

 

W.2.11.3.8 US — Zeroing (EC) (Article 21.5 — EC), Annex III, paras. 3-9
(WT/DS294/AB/RW, WT/DS294/AB/RW/Corr.1)

 

We are making the following ruling on the requests of the participants, having carefully considered the comments of the third participants. Article 17.10 must be read in context, particularly in relation to Article 18.2 of the DSU. The second sentence of Article 18.2 expressly provides that “[n]othing in this Understanding shall preclude a party to a dispute from disclosing statements of its own positions to the public”. Thus, under Article 18.2, the parties may decide to forgo confidentiality protection in respect of their statements of position. The third sentence of Article 18.2 states that “Members shall treat as confidential information submitted by another Member to the panel or the Appellate Body which that Member has designated as confidential.” This provision would be redundant if Article 17.10 were interpreted to require absolute confidentiality in respect of all elements of appellate proceedings. There would be no need to require, pursuant to Article 18.2, that a Member designate certain information as confidential. The last sentence of Article 18.2 ensures that even such designation by a Member does not put an end to the right of another Member to make disclosure to the public. Upon request, a Member must provide a non-confidential summary of the information contained in its written submissions that it designated as confidential, which can then be disclosed to the public. Thus, Article 18.2 provides contextual support for the view that the confidentiality rule in Article 17.10 is not absolute. Otherwise, no disclosure of written submissions or other statements would be permitted during any stage of the proceedings.

 

In practice, the confidentiality requirement in Article 17.10 has its limits. Notices of Appeal and Appellate Body reports are disclosed to the public. Appellate Body reports contain summaries of the participants’ and third participants’ written and oral submissions and frequently quote directly from them. Public disclosure of Appellate Body reports is an inherent and necessary feature of our rules-based system of adjudication. Consequently, under the DSU, confidentiality is relative and time-bound.

 

In our view, the confidentiality requirement in Article 17.10 is more properly understood as operating in a relational manner. There are different sets of relationships that are implicated in appellate proceedings. Among them are the following relationships. First, a relationship between the participants and the Appellate Body. Secondly, a relationship between the third participants and the Appellate Body. The requirement that the proceedings of the Appellate Body are confidential affords protection to these separate relationships and is intended to safeguard the interests of the participants and third participants and the adjudicative function of the Appellate Body, so as to foster the system of dispute settlement under conditions of fairness, impartiality, independence and integrity. In this case, the participants have requested authorization to forgo confidentiality protection for their communications with the Appellate Body at the oral hearing. The requests of the participants do not extend to any communications, nor touch upon the relationship, between the third participants and the Appellate Body. The right to confidentiality of third participants vis-à-vis the Appellate Body is not implicated by these requests. The question is thus whether the participants’ requests to forgo confidentiality protection satisfy the requirements of fairness and integrity that are the essential attributes of the appellate process and define the relationship between the Appellate Body and the participants. If the requests meet these standards, then the Appellate Body would incline towards authorizing them.

 

We note that the DSU does not specifically provide for an oral hearing at the appellate stage. The oral hearing was instituted by the Appellate Body in its Working Procedures, which were drawn up pursuant to Article 17.9 of the DSU. The conduct and organization of the oral hearing falls within the authority of the Appellate Body (compétence de la compétence) pursuant to Rule 27 of the Working Procedures. Thus, the Appellate Body has the power to exercise control over the conduct of the oral hearing, including authorizing the lifting of confidentiality at the request of the participants as long as this does not adversely affect the rights and interests of the third participants or the integrity of the appellate process. As we observed earlier, Article 17.10 also applies to the relationship between third participants and the Appellate Body. Nevertheless, in our view, the third participants cannot invoke Article 17.10, as it applies to their relationship with the Appellate Body, so as to bar the lifting of confidentiality protection in the relationship between the participants and the Appellate Body. Likewise, authorizing the participants’ requests to forgo confidentiality does not affect the rights of third participants to preserve the confidentiality of their communications with the Appellate Body.

 

The powers of the Appellate Body are themselves circumscribed in that certain aspects of confidentiality are incapable of derogation — even by the Appellate Body — where derogationmay undermine the exercise and integrity of the Appellate Body’s adjudicative function. This includes the situation contemplated in the second sentence of Article 17.10, which provides that “[t]he reports of the Appellate Body shall be drafted without the presence of the parties to the dispute and in the light of the information provided and the statements made.” Confidentiality of the deliberations is necessary to protect the integrity, impartiality, and independence of the appellate process. In our view, such concerns do not arise in a situation where, following requests from the participants, the Appellate Body authorizes the lifting of the confidentiality of the participants’ statements at the oral hearing.

 

The Appellate Body has fostered the active participation of third parties in the appellate process in drawing up the Working Procedures and in appeal practice. Article 17.4 provides that third participants “may make written submissions to, and be given an opportunity to be heard by, the Appellate Body”. In its Working Procedures, the Appellate Body has given full effect to this right by providing for participation of third participants during the entirety of the oral hearing, while third parties meet with panels only in a separate session at the first substantive meeting. The rights of third participants are distinct from those of the main participants to a dispute. They have a systemic interest in the interpretation of the provisions of the covered agreements that may be at issue in an appeal. Although their views on the questions of legal interpretation that come before the Appellate Body are always valuable and thoroughly considered, these issues of legal interpretation are not inherently confidential. However, it is not for the third participants to determine how the protection of confidentiality in the relationship between the participants and the Appellate Body is best dealt with. We do not consider that the third participants have identified a specific interest in their relationship with the Appellate Body that would be adversely affected if we were to authorize the participants’ requests.

 

The requests for public observation of the oral hearing in this dispute have been made by the European Communities and the United States. As we explained earlier, the Appellate Body has the power to authorize the requests by the participants to lift confidentiality, provided that this does not affect the confidentiality of the relationship between third participants and the Appellate Body, or impair the integrity of the appellate process. The participants have suggested that the Appellate Body allow observation by the public of the oral hearing in this dispute by means of simultaneous closed-circuit television broadcasting with the transmission being switched off when those third participants who do not wish to make their statements public take the floor. We do not see the public observation of the oral hearing, using the means described above, as having an adverse impact on the integrity of the adjudicative functions performed by the Appellate Body.

 

W.2.11.3.9 US — Zeroing (Japan) (Article 21.5 — Japan), paras. 17-18
(WT/DS322/AB/RW)

 

On 29 May 2009, Japan and the United States each requested the Appellate Body Division hearing this appeal to authorize public observation of the oral hearing. Japan explained that its request was being made on the understanding that any information that it had designated as confidential would be adequately protected in the course of the hearing. …

 

In a Procedural Ruling dated 11 June 2009, the Appellate Body Division hearing this appeal authorized the public observation of the oral hearing and adopted additional procedures on logistical arrangements in accordance with Rule 16(1) of the Working Procedures, which it considered would address the concerns raised by certain third participants and Japan.

 

W.2.11.3.10 US — Zeroing (Japan) (Article 21.5 — Japan), Annex II, paras. 4-7
(WT/DS322/AB/RW)

 

Similar requests to allow public observation of the oral hearing have been made in previous appeals. In acceding to these requests, the Appellate Body relied on the same reasoning, which was first developed in US — Continued Suspension and Canada — Continued Suspension. We note the following main aspects of the reasoning set out in the Procedural Rulings issued in those proceedings:

 

(a) Article 17.10 must be read in context, particularly in relation to Article 18.2 of the DSU. The second sentence of Article 18.2 expressly provides that “[n]othing in this Understanding shall preclude a party to a dispute from disclosing statements of its own positions to the public”. Thus, under Article 18.2, the parties may decide to forgo confidentiality protection in respect of their statements of position. The third sentence of Article 18.2 states that “Members shall treat as confidential information submitted by another Member to the panel or the Appellate Body which that Member has designated as confidential.” This provision would be redundant if Article 17.10 were interpreted to require absolute confidentiality in respect of all elements of appellate proceedings. Accordingly, Article 18.2 of the DSU provides contextual support for the view that the confidentiality rule in Article 17.10 is not absolute, and has its limits.

 

(b) The confidentiality requirement in Article 17.10 operates in a relational manner. There are different sets of relationships that are implicated in appellate proceedings, including: (i) a relationship between the participants and the Appellate Body; and (ii) a relationship between the third participants and the Appellate Body. The requirement that the proceedings of the Appellate Body are confidential affords protection to these separate relationships and is intended to safeguard the interests of the participants and third participants and the adjudicative function of the Appellate Body, so as to foster the system of dispute settlement under conditions of fairness, impartiality, independence and integrity. In this case, the participants have requested authorization to forgo confidentiality protection for their communications with the Appellate Body at the oral hearing. The requests of the participants do not extend to any communications, nor touch upon the relationship, between the third participants and the Appellate Body. The right to confidentiality of third participants vis-à-vis the Appellate Body is not implicated by these requests.

 

(c) The DSU does not specifically provide for an oral hearing at the appellate stage. The oral hearing was instituted by the Appellate Body in its Working Procedures. Pursuant to Rule 27 of the Working Procedures, the Appellate Body has the power to exercise control over the conduct of the oral hearing, including authorizing the lifting of confidentiality at the request of the participants as long as this does not adversely affect the rights and interests of the third participants or the integrity of the appellate process. Even though Article 17.10 also applies to the relationship between third participants and the Appellate Body, the third participants cannot invoke Article 17.10 as it applies to their relationship with the Appellate Body, so as to bar the lifting of confidentiality protection in the relationship between the participants and the Appellate Body. Likewise, authorizing the participants’ requests to forgo confidentiality, does not affect the rights of third participants to preserve the confidentiality of their communications with the Appellate Body.

 

(d) Although the powers of the Appellate Body are themselves circumscribed in that certain aspects of confidentiality are incapable of derogation — even by the Appellate Body — where derogation may undermine the exercise and integrity of the Appellate Body’s adjudicative function such concerns do not arise in a situation where, following requests of the participants, the Appellate Body authorizes the lifting of the confidentiality of the participants’ statements at the oral hearing.

 

(e) The Appellate Body has fostered the active participation of third parties in the appellate process in drawing up the Working Procedures and in appeal practice. However, the rights of third participants are distinct from those of the main participants to a dispute.

 

We note that public observation in these previous cases operated smoothly and that the rights of third participants who did not wish to have their oral statements made subject to public observation were fully protected.

 

The requests for public observation of the oral hearing in this dispute have been made by the two participants, Japan and the United States. As explained above, the Appellate Body has the power to authorize requests by the participants to lift confidentiality, provided that this does not affect the confidentiality in the relationship between the third participants and the Appellate Body, or impair the integrity of the appellate process.

 

Japan stated that its request for an open hearing does not and should not be deemed to forgo confidentiality protection with respect to information it has designated as confidential during the compliance proceedings in this dispute. Japan noted, in this respect, that the third sentence of Article 18.2 of the DSU explicitly provides that “Members shall treat as confidential information submitted by another Member to the panel or the Appellate Body which that Member has designated as confidential.” Japan therefore proposed that the Division hold an open hearing by means of simultaneous closed-circuit television broadcast, with the transmission being turned off should the Division or either of the participants find it necessary to address issues that involve confidential information that Japan has submitted in the course of these compliance proceedings. The United States also considered that this modality would allow for the concerns raised by Japan to be addressed adequately. We agree that this is an adequate way to protect confidential information in the context of a hearing that is open to public observation.

 
W.2.12 Rule 28 — Written responses     back to top

W.2.12.1 US — Gasoline, p. 3, DSR 1996:I, p. 3 at 4
(WT/DS2/AB/R)

 

The oral hearing contemplated by Rule 27 of the Working Procedures was held on 27 and 28 March 1996. At the hearing, oral arguments were made respectively by the participants and the third participants. Questions were put to them by the Members of the Appellate Body hearing the appeal. Most of these questions were answered orally, and some were responded to in writing with the responses being furnished both to the Appellate Body and the other participants and third participants. In addition, the participants and third participants were invited to provide, and did provide, the Appellate Body and each other with final written statements of their respective positions. All the participants and third participants responded positively and punctually, which was a source of satisfaction for the Appellate Body.

 

W.2.12.2 Japan — Alcoholic Beverages II, p. 2, DSR 1996:I, p. 97 at 98
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)

 

The oral hearing contemplated by Rule 27 of the Working Procedures was held on 9 September 1996. The participants presented their arguments and answered questions from the Division of the Appellate Body hearing the appeal (the “Division”). The participants answered most of these questions orally at the hearing. They answered some in writing. The Division gave each participant an opportunity to respond to the written post-hearing memoranda of the other participants.

 

W.2.12.3 US — Underwear, p. 5, DSR 1997:I, p. 11 at 13-14
(WT/DS24/AB/R)

 

The oral hearing contemplated by Rule 27 of the Working Procedures was held on 16 December 1996. At the hearing, oral arguments were made respectively by the participants and the third participant. Questions were put to them by the Division. All of these questions were answered orally. The participants and third participant did not take advantage of an invitation by the Division to submit post hearing memoranda. On 18 December 1996, the United States submitted a written clarification and amplification of its oral response to one of the Division’s questions. The next day, Costa Rica responded in writing to the United States’ clarification.

 

W.2.12.4 EC — Poultry, para. 6
(WT/DS69/AB/R)

 

The oral hearing in the appeal was held on 9 June 1998. The participants and third participants presented oral arguments and responded to questions put to them by the Members of the Division hearing the appeal. The participants and third participants also gave oral concluding statements. At the request of the Members of the Division, the participants and third participants submitted, on 12 June 1998, written post hearing memoranda on particular issues relating to the appeal. The participants submitted their respective written replies to these post-hearing memoranda on 15 June 1998.

 

W.2.12.5 US — Shrimp, para. 8
(WT/DS58/AB/R)

 

… At the invitation of the Appellate Body, the United States, India, Pakistan, Thailand and Malaysia filed additional submissions on certain issues arising under Article XX(b) and Article XX(g) of the GATT 1994 on 17 August 1998. The oral hearing in the appeal was held on 19-20 August 1998. …

 

W.2.12.6 Canada — Patent Term, para. 8
(WT/DS170/AB/R)

 

… On 29 June 2000, Canada filed an appellant’s submission. The United States filed an appellee’s submission on 14 July 2000. On 25 July 2000, at the request of the Appellate Body Division hearing the appeal, the participants submitted additional memoranda on certain issues of legal interpretation arising under Articles 70.1 and 70.2 of the TRIPS Agreement. The Division afforded each participant an opportunity to respond to the additional memoranda submitted by the other participant.

 

W.2.12.7 US — Section 211 Appropriations Act, para. 13
(WT/DS176/AB/R)

 

On 2 November 2001, pursuant to Rule 28(1) of the Working Procedures, the Division hearing the appeal requested that the participants submit additional written memoranda on the interpretation by domestic courts of Article 6quinquies of the Paris Convention (1967), or the interpretation by domestic courts of legislation incorporating Article 6quinquies. Both participants filed the additional written memoranda on 6 November 2001, and served these memoranda on each other. Pursuant to Rule 28(2) of the Working Procedures, the Division gave the participants an opportunity to respond to these memoranda at the oral hearing in this appeal.

 

W.2.12.8 US — FSC (Article 21.5 — EC), para. 11
(WT/DS108/AB/RW)

 

At the oral hearing, the Division requested the United States to reduce to writing, by 28 November 2001, certain of its responses to questioning. The Division also authorized the European Communities and the third participants, if they wished, to respond in writing by 30 November 2001. In response to this request, the United States filed an additional written memorandum on 28 November 2001. The European Communities filed a response to this additional written memorandum on 30 November 2001.

 

W.2.12.9 US — Softwood Lumber IV (Article 21.5 — Canada), para. 12
(WT/DS257/AB/RW)

 

On 26 September 2005, pursuant to Rule 28(1) of the Working Procedures, the Appellate Body Division hearing this appeal requested the United States to submit an additional written memorandum explaining certain aspects of relevant United States laws and procedures. The United States filed an additional written memorandum on 5 October 2005. On 10 October 2005, Canada submitted a written response to the United States’ additional written memorandum. The Division allowed the third participants additional time during the presentation of their oral statements at the hearing to respond to these additional memoranda.

 
W.2.13 Rule 30 — Withdrawal     back to top

W.2.13.1 WITHDRAWAL AND RE-FILING OF NOTICE OF APPEAL

 

W.2.13.1.1 US — FSC, para. 4
(WT/DS108/AB/R)

 

… For scheduling reasons, and pursuant to an agreement it had reached with the European Communities, on 2 November 1999 the United States notified the Chairman of the Appellate Body and the Chairman of the DSB of its decision to withdraw its 28 October 1999 notice of appeal. This withdrawal was made pursuant to Rule 30(1) of the Working Procedures, and was conditional upon the right of the United States to file a new notice of appeal pursuant to Rule 20 of the Working Procedures. …

 

W.2.13.1.2 US — Line Pipe, para. 13
(WT/DS202/AB/R)

 

On 6 November 2001, the United States notified the DSB of its intention to appeal certain issues of law covered in the Panel Report and certain legal interpretations developed by the Panel, pursuant to paragraph 4 of Article 16 of the DSU, and filed a notice of appeal pursuant to Rule 20 of the Working Procedures for Appellate Review (the “Working Procedures”). For scheduling reasons, on 13 November 2001, the United States notified the Chairman of the Appellate Body and the Chairman of the DSB of its decision to withdraw the notice of appeal filed on 6 November 2001. The withdrawal was made pursuant to Rule 30(1) of the Working Procedures, and was conditional on the right to file a new notice of appeal. On 19 November 2001, the United States again notified the DSB of its intention to appeal certain issues of law covered in the Panel Report and certain legal interpretations developed by the Panel, pursuant to paragraph 4 of Article 16 of the DSU, and filed a new notice of appeal pursuant to Rule 20 of the Working Procedures. …

 

W.2.13.1.3 EC — Sardines, paras. 137-138
(WT/DS231/AB/R)

 

… Rule 30(1) of the Working Procedures for Appellate Review (the “Working Procedures”), which governs the withdrawal of an appeal …

 

… accords to the appellant a broad right to withdraw an appeal at any time. This right appears, on its face, to be unfettered: an appellant is not subject to any deadline by which to withdraw its appeal; an appellant need not provide any reason for the withdrawal; and an appellant need not provide any notice thereof to other participants in an appeal. More significantly for this appeal, there is nothing in the Rule prohibiting the attachment of conditions to a withdrawal. …

 

W.2.13.1.4 EC — Sardines, paras. 140-141
(WT/DS231/AB/R)

 

This obligation to interpret the Working Procedures in a way that promotes the effective resolution of disputes is complemented by the obligation of Members, set out in Article 3.10 of the DSU, to “engage in [dispute settlement] procedures in good faith in an effort to resolve the dispute”. Hence, the right to withdraw an appeal must be exercised subject to these limitations, which are applicable generally to the dispute settlement process.

 

… While it is true that nothing in the text of Rule 30(1) explicitly permits an appellant to exercise its right subject to conditions, it is also true that nothing in the same text prohibits an appellant from doing so. As we have just explained, in our view, the right to withdraw a notice of appeal under Rule 30(1) is broad, subject only to the limitations we have described. … Rather, the correct interpretation, in our view, is that Rule 30(1) permits conditional withdrawals, unless the condition imposed undermines the “fair, prompt and effective resolution of trade disputes”, or unless the Member attaching the condition is not “engag[ing] in [dispute settlement] procedures in good faith in an effort to resolve the dispute”. Therefore, it is necessary to examine any such conditions attached to withdrawals on a case-by-case basis to determine whether, in fact, the particular condition in a particular case in any way obstructs the dispute settlement process, or in some way diminishes the rights of the appellee or other participants in the appeal.

 

W.2.13.1.5 EC — Sardines, paras. 145-147
(WT/DS231/AB/R)

 

… Thus, for the reasons explained, we find that the withdrawal of the original Notice on condition of filing a replacement Notice was appropriate and had the effect of conditionally withdrawing the original Notice.

 

… We agree with Peru that there may be situations where the withdrawal of an appeal on condition of refiling a new notice, and the filing thereafter of a new notice, could be abusive and disruptive. However, in such cases, we would have the right to reject the condition, and also to reject any filing of a new notice of appeal, on the grounds either that the Member seeking to file such a new notice would not be engaging in dispute settlement proceedings in good faith, or that Rule 30(1) of the Working Procedures must not be used to undermine the fair, prompt, and effective resolution of trade disputes. …

 

In addition, we believe there are circumstances that, although not constituting “abusive practices”, would be in violation of the DSU, and would, thus, compel us to disallow the conditional withdrawal of a notice of appeal as well as the filing of a replacement notice. For example, if the conditional withdrawal or the filing of a new notice were to take place after the 60-day deadline in Article 16.4 of the DSU for adoption of panel reports, this would effectively circumvent the requirement to file appeals within 60 days of circulation of panel reports. In such circumstances, we would reject the conditional withdrawal and the new notice of appeal.

 

W.2.13.1.6 EC — Sardines, paras. 149-150
(WT/DS231/AB/R)

 

… we agree with the European Communities that the replacement Notice of Appeal contains no additional grounds of appeal, and that it merely added information to the paragraphs in the initial Notice that Peru considered deficient.

 

… We are, however, not creating a new procedural right; we are only upholding the right to withdraw an appeal. …

 

… In the circumstances of this case, we believe that Peru has been accorded the full measure of its due process rights, because the withdrawal of the original Notice and the filing of a replacement Notice were carried out in response to objections raised by Peru, the replacement Notice was filed in a timely manner and early in the process, and the replacement Notice contained no new or modified grounds of appeal. Also, Peru has not demonstrated that it suffered prejudice as a result. Moreover, Peru was given an adequate opportunity to address its concerns about the European Communities’ actions during the course of the appeal.

 

W.2.13.1.7 US — Softwood Lumber IV, para. 6
(WT/DS257/AB/R)

 

On 2 October 2003, the United States notified the DSB of its intention to appeal certain issues of law covered in the Panel Report and certain legal interpretations developed by the Panel, pursuant to paragraph 4 of Article 16 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the “DSU”), and filed a Notice of Appeal pursuant to Rule 20 of the Working Procedures for Appellate Review (the “Working Procedures”). On 3 October 2003, for scheduling reasons, the United States withdrew its Notice of Appeal pursuant to Rule 30 of the Working Procedures, conditional on its right to re-file the Notice of Appeal at a later date. On 21 October 2003, the United States re-filed a substantively identical Notice of Appeal pursuant to Rule 20 of the Working Procedures. On that same day, the United States filed its appellant’s submission in accordance with the Working Schedule drawn up by the Division for this appeal.

 

W.2.13.2 WITHDRAWAL OF APPEAL

 

W.2.13.2.1 India — Autos, paras. 15, 17-18
(WT/DS146/AB/R, WT/DS175/AB/R)

 

On 14 March 2002, the Appellate Body received a letter from India, in which India stated that:

 

Pursuant to Rule 30(1) of the Working Procedures for Appellate Review, this is to inform the Appellate Body that India is withdrawing the above-mentioned appeal; oral hearing on this is scheduled for 15 March 2002. Inconvenience caused to the Appellate Body, Secretariat, the other parties and the third participants is deeply regretted.

 

 

Upon receipt of India’s letter of 14 March 2002, the Appellate Body on the same day notified the DSB, pursuant to Rule 30(1) of the Working Procedures, that India “has notified the Appellate Body that India is withdrawing its appeal” in this dispute, and simultaneously informed India, the European Communities, the United States, Korea and Japan that the oral hearing in this appeal was cancelled.

 

In view of India’s withdrawal of the appeal by its letter of 14 March 2002, the Appellate Body hereby completes its work in this appeal.

 

Rules of Conduct — Annex II. See Confidentiality (C.6); Working Procedures for Appellate Review, Rule 3 (W.2.2-3); Working Procedures for Appellate Review, Rule 8 (W.2.4); Working Procedures for Appellate Review, Rule 27 (W.2.11)

 

952. The relevant findings and conclusions for purposes of the recommendations and rulings to be adopted by the DSB in this dispute, pursuant to Article 17.14 of the DSU, are those set out in paragraph 763(e) and (f) of this Report.     back to text

25. By letter dated 19 January 2006, the Appellate Body Division hearing this appeal referred to Rule 16(2) of the Working Procedures and invited the United States to provide further details in support of its request, in particular, the nature of the “exceptional circumstances”, as well as the “manifest unfairness” that would ensue in the absence of a change to the date of the oral hearing. Canada and the third participants were also invited to submit comments on the United States’ request. On 20 January 2006, the United States submitted additional reasons in support of its request. On 24 January 2006, Canada informed the Division that it preferred to have the oral hearing proceed on the originally scheduled date, although Canada also indicated that a delay of one day could “be accommodated”. …     back to text

62. At the oral hearing, the United States and Canada confirmed their preference for two separate Appellate Body reports. We have issued separate reports (WT/DS320/AB/R and WT/DS321/AB/R), which are identical except for the Findings and Conclusions section.     back to text

28. By letter dated 14 March 2006, the United States indicated that, although it would ordinarily have concerns about a participant’s untimely request to modify its submission, in this case the United States did not object to Canada’s request, given that the errors at issue were discussed at the oral hearing. The third participants did not submit any comments.     back to text

72. … Canada noted that the European Communities’ appellee’s submission sent via email was also slightly delayed. The United States noted that the European Communities announced in an email message that it had delivered printed copies of its appellee’s submission to the Appellate Body Secretariat and to the other participants and third participants before 5 p.m.; however, the United States received the electronic copy of the European Communities’ appellee’s submission after 5 p.m., whereas the Working Schedule states that “[t]welve printed copies, as well as an electronic copy, of each written submission should be filed by 5 p.m., Geneva, Switzerland time, on the due date indicated in this Working Schedule” (original underlining). In the event the Appellate Body were to rule on the European Communities’ request regarding the United States’ appellee’s submission, the United States requested the Appellate Body also to inform the European Communities of the treatment to be accorded to its submission in the light of Rule 18 of the Working Procedures.     back to text

190. We observe, in this respect, that Article 17.9 of the DSU provides for the Appellate Body to consult with the Director-General of the WTO and the Chair of the DSB in amending its Working Procedures. In accordance with the DSB Decision of 19 December 2002 (WT/DSB/31), the DSB Chair also consults with WTO Members on amendments proposed by the Appellate Body. The Appellate Body monitors the operation of the Working Procedures closely, and recognizes that a need for revision may arise from time to time. We believe that issues such as the one referred to by Canada in this appeal could usefully be addressed in the context of future revision.     back to text

27. … The Division invited the European Communities, once it had reviewed the United States’ submission, to inform the Division whether 10 minutes would be sufficient or, if not, how much extra time the European Communities was requesting. … the European Communities responded by requesting 15 minutes for its oral presentation. Canada expressed no objection, with the understanding that any extension of time would not prejudice Canada’s rights, including the time to make its oral presentation. The United States objected to the request, arguing that none of the arguments advanced by the European Communities justified giving third participants additional time for their oral presentations; the United States noted, in particular, that, under the currently applicable timetable for appeals, third participants, as a rule, file their submissions on the same day as the appellee(s), and, thus do not have time to reflect on the appellee’s submission before filing their submission.     back to text

16. In a letter from the Permanent Delegation of the European Commission dated 23 October 2003, the European Communities argued that the time-period within which it had to file its third participant’s submission was contrary to Rule 24(1) of the Working Procedures because it was less than 25 days from the date of the re-filing of the Notice of Appeal.     back to text

17. Letter from the Director of the Appellate Body Secretariat dated 24 October 2003.     back to text

30. By letter dated 9 February 2007, the Division hearing this appeal invited Chile and the third participants to submit written comments on Argentina’s request. Chile, Brazil, Columbia, Peru, and the United States submitted written comments. Chile agreed that the situation faced by Argentina constituted “exceptional circumstances”, and stated that it had no objection to Argentina’s request. However, Chile requested that, should the Division decide to grant Argentina’s request, the date for filing Chile’s appellee’s submission — due on 2 March — also be extended by one week, to 9 March 2007. Chile added that, in order to ensure that Chile’s procedural rights were not compromised, the due date for Argentina’s appellee’s submission, 2 March 2007, should not be altered unless the date of the oral hearing were also changed. The United States indicated that it had no objection to Argentina’s request, but stated its “assumption” that, if the date for the filing of Argentina’s other appellant’s submission were to be deferred until 26 February, the date for the filing of a third participant’s submission would be adjusted “commensurately”, that is, postponed from 2 March until 8 March. Brazil, Columbia, and Peru indicated that they had no objection to Argentina’s request     back to text

29. The oral hearing was originally scheduled for 26 June 2006. However, the oral hearing had to be rescheduled owing to logistical difficulties due to meetings held at the WTO building in connection with Doha Development Agenda negotiations. Neither the participants nor the third participants objected to the change of date.     back to text


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