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REPERTORY OF APPELLATE BODY REPORTS

Business Confidential Information


ON THIS PAGE:

> Brazil — Aircraft, para. 9; Brazil — Aircraft, para. 119; Brazil — Aircraft, paras. 123-125;
Japan — DRAMs (Korea), para. 279


B.4.1 Brazil — Aircraft, para. 9;     back to top
(WT/DS46/AB/R)

Canada — Aircraft, para. 6
(WT/DS70/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.

 
B.4.2 Brazil — Aircraft,
para. 119;     back to top
(WT/DS46/AB/R)

Canada — Aircraft, para. 141
(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. Our ruling was as follows:
 

… We also note that all Members are obliged, by the provisions of the DSU, to treat these proceedings of the Appellate Body, including written submissions and other documents filed by the participants and the third participants, as confidential. We are confident that the participants and the third participants in this appeal will fully respect their obligations under the DSU, recognizing that a Member’s obligation to maintain the confidentiality of these proceedings extends also to the individuals whom that Member selects to act as its representatives, counsel and consultants.

 
B.4.3 Brazil — Aircraft,
paras. 123-125;     back to top
(WT/DS46/AB/R)

Canada — Aircraft, paras. 145-147
(WT/DS70/AB/R)

In our view, the provisions of Articles 17.10 and 18.2 apply to all Members of the WTO, and oblige them to maintain the confidentiality of any submissions or information submitted, or received, in an Appellate Body proceeding. Moreover, those provisions oblige Members to ensure that such confidentiality is fully respected by any person that a Member selects to act as its representative, counsel or consultant. In this respect, we note, with approval, the following statement made by the panel in [Indonesia — Automobiles]:
 

We would like to emphasize that all members of parties’ delegations — whether or not they are government employees — are present as representatives of their governments, and as such are subject to the provisions of the DSU and of the standard working procedures, including Articles 18.1 and 18.2 of the DSU and paragraphs 2 and 3 of those procedures. In particular, parties are required to treat as confidential all submissions to the Panel and all information so designated by other Members; and, in addition, the Panel meets in closed session. Accordingly, we expect that all delegations will fully respect those obligations and will treat these proceedings with the utmost circumspection and discretion. (emphasis added) [Panel Report, Indonesia — Automobiles, para. 14.1]
 

Finally, we wish to recall that 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)

 

For these reasons, we do not consider that it is necessary, under all the circumstances of this case, to adopt additional procedures for the protection of business confidential information in these appellate proceedings.…

 
B.4.4 Japan — DRAMs (Korea),
para. 279     back to top
(WT/DS336/AB/R, WT/DS336/AB/R/Corr.1)

We note that several passages have been omitted from the public version of the Panel Report on the basis that Japan and Korea indicated that those passages contained business confidential information (“BCI”). The European Communities has complained that, while BCI must be respected, the Panel has dealt with it in such a sweeping manner that the Panel Report has become unintelligible for third parties, and as a result its rights as a third party have been affected. While a panel must not disclose information which is by its nature confidential, a panel, in deciding to redact such information from its report at the request of one or both of the parties, should bear in mind the rights of third parties and other WTO Members under various provisions of the DSU, such as Articles 12.7 and 16. Accordingly, a panel must make efforts to ensure that the public version of its report circulated to all Members of the WTO is understandable. On appeal, Japan and Korea have designated certain information contained in their written submissions as BCI. We have found it possible to render our Report without disclosing any BCI, designated as such.

 


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