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ON THIS PAGE:
> Brazil — Aircraft, para. 121
> Brazil — Aircraft, paras. 123-124
> Thailand — H-Beams, para. 74
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C.6.1 Brazil — Aircraft, para. 121
back to top
(WT/DS46/AB/R)
Canada — Aircraft, para. 143
(WT/DS70/AB/R)
With respect to appellate proceedings, in particular, the provisions
of the DSU impose an obligation of confidentiality which applies to WTO
Members generally as well as to Appellate Body Members and staff. In
this respect, Article 17.10 of the DSU states, without qualification,
that “[t]he proceedings of the Appellate Body shall be
confidential.” (emphasis added) The word “proceeding” has been
defined as follows:
In a general sense, the form and manner of conducting juridical
business before a court or judicial officer. Regular and orderly
progress in form of law, including all possible steps in an action
from its commencement to the execution of judgment. (emphasis added)
More broadly, the word “proceedings” has been defined as “the
business transacted by a court”. In its ordinary meaning, we take “proceedings”
to include, in an appellate proceeding, any written submissions, legal
memoranda, written responses to questions, and oral statements by the
participants and the third participants; the conduct of the oral hearing
before the Appellate Body, including any transcripts or tapes of that
hearing; and the deliberations, the exchange of views and internal
workings of the Appellate Body.
C.6.2 Brazil — Aircraft, paras. 123-124
back to top
(WT/DS46/AB/R)
Canada — Aircraft, paras. 145-146
(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)
C.6.3 Thailand — H-Beams, para. 74 back to top
(WT/DS122/AB/R)
In our preliminary ruling of 14 December 2000, we stated:
The terms of Article 17.10 of the DSU are clear and unequivocal: “[t]he
proceedings of the Appellate Body shall be confidential”. Like all
obligations under the DSU, this is an obligation that all Members of the
WTO, as well as the Appellate Body and its staff, must respect. WTO
Members who are participants and third participants in an appeal are
fully responsible under the DSU and the other covered agreements for any
acts of their officials as well as their representatives, counsel or
consultants. …
We note that Poland has made substantial efforts to investigate this
matter, and to gather information from its legal counsel, Hogan &
Hartson L.L.P. We note as well the responses from the third
participants, the European Communities, Japan and the United States.
Furthermore, Poland has accepted the proposal made by Hogan &
Hartson L.L.P. to withdraw as Poland’s legal counsel in this appeal.
On the basis of the responses we have received from Poland and from the
third participants, and on the basis of our own examination of the facts
on the record in this appeal, we believe that there is prima facie
evidence that CITAC received, or had access to, Thailand’s appellant’s
submission in this appeal.
We see no reason to accept the written brief submitted by CITAC in
this appeal. Accordingly, we have returned this brief to CITAC.
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