DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: CHAPTER 9
Participation in dispute settlement proceedings
A question that arose early in the life of the DSU was whether the parties and third parties to a dispute could only send government officials as their representatives to the meetings with the panel and the oral hearing of the Appellate Body. The DSU does not specifically address the issue of who may represent a party before panels and the Appellate Body.
In EC — Bananas III, one party challenged the right of parties or third parties to have independent private legal counsel (i.e. barristers/solicitors/attorneys) as their representatives, even if these individuals are professionals who had been hired for that specific purpose and were not permanently employed by the government. The practice under GATT 1947 (where private legal counsel was not allowed) was invoked in support of denying such a possibility. The Appellate Body, however, made clear that nothing in the WTO Agreement or in general international law prevents a WTO Member from determining for itself the composition of its delegation in WTO dispute settlement proceedings.1
This is valid for hearings of the Appellate Body as well as for the substantive meetings with the panel. It is, therefore, now common practice for private legal counsel to appear in panel and Appellate Body proceedings as part of a Member’s delegation and to present arguments on their behalf. Even more common is the involvement of private law firms in the preparation of parties’ written submissions, even though this is usually not visible because the party involved would file these submissions with its government’s letterhead. This is quite relevant for developing country Members, as it may enable them to take part in dispute settlement proceedings even when they lack human resources with specific expertise in (WTO) dispute settlement.2 The Member concerned is of course responsible for these representatives, as for all its governmental delegates, and must ensure that these outside representatives respect the confidentiality of the proceedings.3
2. Appellate Body Report, EC — Bananas III, para. 12; see the section on Representation by private counsel and the Advisory Centre on WTO Law back to text