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REPERTORY OF APPELLATE BODY REPORTS

Business Confidential Information


ON THIS PAGE:

> Brazil — Aircraft, para. 9; Canada — Aircraft, para. 6
> Brazil — Aircraft, para. 119; Canada — Aircraft, para. 141
> Brazil — Aircraft, paras. 123–125; Canada — Aircraft, paras. 145–147
> Japan — DRAMS (Korea), para. 279
> EC and certain member States — Large Civil Aircraft, paras. 17–19
> EC and certain member States — Large Civil Aircraft, Annex III, paras. 1 and 3
> EC and certain member States — Large Civil Aircraft, Annex III, paras. 7–13
> EC and certain member States — Large Civil Aircraft, Annex III, paras. 14–28
> EC and certain member States — Large Civil Aircraft, para. 20 and Footnote 69
> EC and certain member States — Large Civil Aircraft, para. 26
> EC and certain member States — Large Civil Aircraft, para. 28
> Philippines — Distilled Spirits, Footnote 12 to para. 5
> US — Large Civil Aircraft (2nd complaint), para. 23 and Footnote 86
> US — Large Civil Aircraft (2nd complaint), para. 24
> US — Large Civil Aircraft (2nd complaint), Annex III, paras. 1 and 3–5
> US — Large Civil Aircraft (2nd complaint), Annex III, paras. 7–12
> US — Large Civil Aircraft (2nd complaint), Annex III, paras. 13–19
> US — Large Civil Aircraft (2nd complaint), para. 25
> US — Large Civil Aircraft (2nd complaint), para. 26
> US — Large Civil Aircraft (2nd complaint), para. 32
> US — Large Civil Aircraft (2nd complaint), para. 34
> US — COOL, Footnote 57 to para. 12

B.4.1 Brazil — Aircraft, para. 9; Canada — Aircraft, para. 6     back to top
(WT/DS46/AB/R, 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; Canada — Aircraft, para. 141     back to top
(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. 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; Canada — Aircraft, paras. 145–147     back to top
(WT/DS46/AB/R, 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.
 

B.4.5 EC and certain member States — Large Civil Aircraft, paras. 17–19     back to top
(WT/DS316/AB/R)

On 21 July 2010, the Division hearing this appeal received a joint letter from the European Union and the United States requesting that the Division adopt additional procedures to protect business confidential information (“BCI”) and highly sensitive business information (“HSBI”) in these appellate proceedings. …
 

On 22 July 2010, the Division declined the participants’ request that it ask the Panel to delay the transmittal to the Appellate Body of any information classified as BCI or HSBI on the Panel record until after the Appellate Body had adopted additional measures regarding BCI and HSBI. The Division noted that Rule 25 of the Working Procedures requires that the panel record be transmitted to the Appellate Body upon the filing of a Notice of Appeal. The Division, taking into consideration the participants’ concern with regard to the protection of BCI and HSBI contained in the Panel record decided, on a provisional basis, to provide additional protection to all BCI and HSBI transmitted to the Appellate Body during the period leading up to the definitive ruling on the participants’ request for additional procedures. Furthermore, noting that consideration of the participants’ joint request required modification to the timelines for filing submissions provided in the Working Procedures, the Division decided to extend the deadlines for filing submissions in this appeal.
 

The Division held a special oral hearing on 3 August 2010 to explore further the issues raised in the participants’ joint request to adopt additional procedures to protect BCI and HSBI and in the third participants’ comments concerning the request. On 10 August 2010, the Division issued a Procedural Ruling in response to the joint request, and adopted Additional Procedures to Protect Sensitive Information (the “Additional Procedures”). …
 

B.4.6 EC and certain member States — Large Civil Aircraft, Annex III, paras. 1 and 3     back to top
(WT/DS316/AB/R)

On Wednesday, 21 July 2010, the Appellate Body Division hearing this appeal received a joint request from the European Union and the United States to adopt additional procedures to protect certain information that they consider to be sensitive. This includes information received as a result of the information-gathering process under Annex V of the Agreement on Subsidies and Countervailing Measures, during the Panel proceedings, and, to the extent relevant, during the Appellate Body proceedings. The participants classify this information in two categories according to its sensitivity. The first category is described as “business confidential information” or “BCI”. The second category is referred to as “highly sensitive business information” or “HSBI” and includes the information that the participants consider to be most sensitive. The participants argue that disclosure of this information could be “severely prejudicial” to the originators of the information, that is, to the large civil aircraft manufacturers that are at the heart of this dispute, and possibly to the manufacturers’ customers and suppliers.
 

...
 

Pending a final decision on the participants’ request for the protection of BCI and HSBI, the Division decided to provide additional protection to all BCI and HSBI on the Panel record transmitted to the Appellate Body in this dispute on the terms set out below.(a) Only Appellate Body Members, and Appellate Body Secretariat staff assigned to work on this appeal, may have access to the BCI and HSBI contained on the Panel record pending a final decision on the participants’ request. Appellate Body Members and Appellate Body Secretariat staff shall not disclose BCI or HSBI, or allow either to be disclosed, to any person other than those identified in the preceding sentence.(b) BCI shall be stored in locked cabinets when not in use. When in use by Appellate Body Members and Appellate Body Secretariat staff assigned to work on this appeal, all necessary precautions will be taken to protect the confidentiality of the BCI.(c) All HSBI shall be stored in a combination safe in a designated secure location in the offices of the Appellate Body Secretariat. Appellate Body Members and Appellate Body Secretariat staff assigned to work on this appeal may view HSBI only in the designated secure location in the offices of the Appellate Body Secretariat. HSBI shall not be removed from this location.(d) Pending a decision on the participants’ request for the protection of BCI/HSBI in these proceedings, neither BCI nor HSBI shall be transmitted electronically, whether by e-mail, facsimile, or otherwise.
 

B.4.7 EC and certain member States — Large Civil Aircraft, Annex III, paras. 7–13     back to top
(WT/DS316/AB/R)

The first question that we must consider is whether we have the authority to adopt special arrangements to provide additional protection for certain information in this case that the participants deem to be particularly sensitive. The participants have referred both to the authority that derives from our inherent jurisdiction and to Rule 16(1) of the Working Procedures. The analysis of this question should begin with the DSU, which provides the primary rules governing WTO dispute settlement, and in particular with Article 17.1 of the DSU, which provides for the establishment of the Appellate Body and confers jurisdiction upon it. Article 17.1 of the DSU states, in relevant part, that “[t]he Appellate Body shall hear appeals from panel cases”. A necessary incident of this authority is the power to determine procedures for the conduct of appeals. These procedures must, amongst other things, guarantee that the participants and third participants can properly exercise their rights under the DSU under conditions of fairness and impartiality. The Appellate Body’s authority to draw up procedures for the conduct of appeals is specifically reflected in Article 17.9 of the DSU, pursuant to which the Appellate Body adopted its Working Procedures. Rule 16(1) of the Working Procedures gives a Division hearing an appeal the authority to adopt an “appropriate procedure” in the “interests of fairness and orderly procedure” where a procedural question arises that is not covered by the Working Procedures, provided that it is not inconsistent with the DSU, the other covered agreements, and the Working Procedures themselves.
 

Turning to the specific question before us, we note that the DSU provides for a regime of confidentiality for appellate proceedings and for submissions of the participants and third participants. Article 17.10 of the DSU states that “{t}he proceedings of the Appellate Body shall be confidential.” Article 18.2 of the DSU provides that “[w]ritten submissions to … the Appellate Body shall be treated as confidential”. Also paragraph VII:1 of the Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes (the “Rules of Conduct”) addresses the protection of confidentiality. The confidentiality requirements set out in these provisions are stated at a high level of generality that may need to be particularized in situations in which the nature of the information provided requires more detailed arrangements to protect adequately the confidentiality of that information. The adoption of such arrangements falls within the authority of the Appellate Body to hear the appeal and to regulate its procedures in a manner that ensures that the proceedings are conducted with fairness and in an orderly manner. In particular, a regime to protect confidential information may be necessary to allow a participant to ventilate its case without undue risk of detrimental disclosure. To the extent that the arrangements elaborate on the confidentiality requirements of the DSU, the adoption of such arrangements in an “appropriate procedure” needs to conform to the requirement in Rule 16(1) of the Working Procedures, that any additional “appropriate procedure” not be inconsistent with the DSU, the other covered agreements, and the Working Procedures themselves.
 

The next step in our analysis is to consider the proper analytical framework within which to determine whether any particular arrangements are required in this case. In our view, the determination of whether particular arrangements are appropriate in a given case essentially involves a balancing exercise: the risks associated with the disclosure of the information sought to be protected must be weighed against the degree to which the particular arrangements affect the rights and duties established in the DSU, the other covered agreements, or the Working Procedures. Furthermore, a relationship of proportionality must exist between the risks associated with disclosure and the measures adopted. The measures should go no further than required to guard against a determined risk of harm (actual or potential) that could result from disclosure.
 

As noted earlier, the DSU and the Rules of Conduct, which are part of the Working Procedures, establish a general confidentiality regime that covers appellate proceedings. Participants requesting particularized arrangements have the burden of justifying that such arrangements are necessary in a given case adequately to protect certain information, taking into account the rights and duties recognized in the DSU, the other covered agreements, and the Working Procedures. The participants agreed, at the oral hearing, that the burden of justifying the need for particularized protective arrangements falls on them. This burden of justification will increase the more the proposed arrangements affect the exercise by the Appellate Body of its adjudicative duties, the exercise by the participants of their rights to due process and to have the dispute adjudicated, the exercise by the third participants of their participatory rights, and the rights and systemic interests of the WTO membership at large.
 

In setting out our analytical framework, we identify the rights and duties that are implicated where additional protection is under consideration. First, there is the overarching authority of the Appellate Body pursuant to Article 17 of the DSU to ensure proper adjudication of the dispute. Secondly, there are the rights of the participants to ventilate their case, have their dispute adjudicated, and to enjoy due process throughout the proceedings. Thirdly, there are the rights of the third participants who, in accordance with Article 17.4 of the DSU, “may make written submissions to, and be given an opportunity to be heard by, the Appellate Body”. As reflected in the Working Procedures, in particular, in Rules 18, 24, and 27, the Appellate Body has fostered the active participation of third participants in the appellate process. At the same time, the Appellate Body has observed that the third participants are not the main parties to the dispute. Theirs is a systemic interest in the correct legal interpretation of the provisions of the covered agreements that may be at issue in an appeal. Finally, there are the rights and interests of the WTO membership at large.
 

As to the rights and interest of the WTO membership at large, Article 3.2 of the DSU provides that the WTO dispute settlement system “serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements”. To preserve the rights and obligations of Members, the WTO dispute settlement system must also be available to adjudicate disputes that involve sensitive information. In certain instances, WTO Members may not be in a position to provide sensitive information to panels unless adequate arrangements are in place to protect the information. The absence of such arrangements could compromise a WTO Member’s ability to pursue and defend its rights and interests in WTO dispute settlement and could have an impact on a panel’s ability to make a complete and objective assessment of the matter. To continue to enjoy the confidence of Members, the WTO dispute settlement system must provide appropriate safeguards to ensure that sensitive information will be adequately protected if it is submitted in the context of a dispute.
 

As set out above, Article 3.2 of the DSU also provides that the WTO dispute settlement system serves to clarify the existing provisions of the covered agreements. WTO Members therefore have the right to receive an Appellate Body report that clarifies the existing provisions of the covered agreements in accordance with Article 3.2 of the DSU. The Appellate Body would not assist the membership if its report failed to set out reasoning and findings with sufficient detail to enable Members to appreciate fully its content before they adopt the report and make it legally binding. As the Appellate Body has explained, “WTO Members attach significance to reasoning provided in previous panel and Appellate Body reports”. The legal interpretations embodied in adopted panel and Appellate Body reports clarify the existing WTO provisions and become part of the acquis of WTO law. A report that provides a full exposition of the Appellate Body’s reasoning is also important for the proper implementation of the recommendations and rulings of the WTO Dispute Settlement Body (the “DSB”). As Article 21.1 of the DSU states, “[p]rompt compliance with recommendations or rulings of the DSB is essential in order to ensure effective resolution of disputes to the benefit of all Members”. The Appellate Body has said that panels should make efforts to ensure that the public version of their reports, which are circulated to all WTO Members, are “understandable”. The same applies to Appellate Body reports.
 

B.4.8 EC and certain member States — Large Civil Aircraft, Annex III, paras. 14–28     back to top
(WT/DS316/AB/R)

Having determined that we have the authority to adopt particular procedures to protect confidential information, the limitations under the DSU, the other covered agreements, and the Working Procedures, and the proper analytical framework, we turn now to assess the specific arrangements that have been proposed by the participants in this case.
 

We recognize that the content of some of the information submitted by the participants is claimed to be such that disclosure could be significantly prejudicial to the commercial interests of Airbus and Boeing. Having said that, we are concerned that there did not appear to have been a meaningful effort during the Panel process to set out objective criteria as to the attributes of the information that may require additional protection so as to guide the determination of whether the particular information that was submitted deserved additional protection and the particular degree of such protection. Such objective criteria could include, for example: whether the information is proprietary; whether it is in the public domain or protected; whether it has a high commercial value for the originator of the information, its competitors, customers, or suppliers; the degree of potential harm in the event of disclosure; the probability of such disclosure; the age of the information and the duration of the industry’s business cycle; and the structure of the market. As noted above, the DSU and the Rules of Conduct already provide for confidentiality, and any additional protection must be justified. It is not for the parties to determine whether additional protection is called for. It is for the panel, and now the Appellate Body, to do so. Indeed, it is for the adjudicator to decide whether the information concerned calls for additional protection. Likewise, it is for the adjudicator to decide whether and to what extent specific arrangements are necessary, while safeguarding the various rights and duties that are implicated in any decision to adopt additional protection.
 

While we express concern with regard to the manner in which the parties designated and the Panel treated the sensitive information, we note that neither participant has appealed the Panel’s decisions on the protection of this information. There are also issues of practicality to consider. At this stage of the dispute, given the decisions on this matter adopted by the Panel and applied by the participants to date, it would be difficult for us to review all of the information on record that was given additional protection by the Panel. We will therefore proceed on the basis of how the information was treated before the Panel. We do not exclude, however, revisiting whether a particular piece of information meets the objective criteria justifying additional protection, or the particular degree thereof, should a dispute on the classification of that information arise before us, or should we consider that we need to refer to that information in our report if this is necessary to give a sufficient exposition of our reasoning and findings.
 

In their proposed procedures, the participants have suggested certain limitations on how Appellate Body Members access information that has been classified as requiring additional protection. In our view, any additional arrangements to protect sensitive information, beyond the general confidentiality protection provided in the DSU and the Rules of Conduct, cannot interfere with the adjudicative duties of the Appellate Body and the collegiality among its Members. Members of the Appellate Body must have access to the entirety of the Panel Report, the submissions, and the record of the dispute. Access to information must be practical and unimpeded, and it must recognize that Appellate Body Members carry out their duties in Geneva as well as at their places of domicile. Appellate Body Members also must be able to exchange information between themselves and to refer to sensitive information in their internal deliberations. The additional procedures that we adopt below ensure that all Appellate Body Members have access to the entirety of the appellate record while they are in Geneva. The additional procedures further provide that Members of the Division shall have access to all but the most sensitive information from their places of residence outside of Geneva. Members of the Appellate Body who are not on the Division shall have access to selected information that they require to discharge their duties of collegiality under Rule 4 of the Working Procedures and to participate meaningfully in any exchanges of views. For their part, Appellate Body Secretariat staff will consult sensitive information only on the premises of the Appellate Body Secretariat and the most sensitive information only in the designated secure location. We recall, in this regard, that Appellate Body Members and Appellate Body Secretariat staff are subject to the Rules of Conduct. Paragraph VII:1 of the Rules of Conduct provides that “[e]ach 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.” If participants were to have any concerns regarding the protection of confidentiality by Appellate Body Members and Appellate Body Secretariat staff, they may raise them under the Rules of Conduct and the Appellate Body will decide. We do not consider that more is required.
 

The arrangements proposed by the participants provide for the possibility that representatives of the participants and certain outside legal advisors have access to the most sensitive information on the premises of the Appellate Body Secretariat. In our view, this raises important legal and practical concerns. The adoption of such an arrangement could mean that representatives of the participants or their outside legal advisors would be present on the premises of the Appellate Body Secretariat while Appellate Body Members are engaged in deliberations concerning this case. It would require the implementation of additional security arrangements while representatives are present and would exclude simultaneous access to the information by Appellate Body Members and Appellate Body Secretariat staff. Each participant has access to all of the sensitive information submitted by the other participant at other secure locations. The participants’ representatives and outside legal advisors thus have alternative means of viewing this information. Therefore, we see no need to permit viewing of the most sensitive information at the Appellate Body Secretariat’s premises by representatives of the participants and their outside legal advisors. To do so would unwarrantably trespass upon the privacy with which the Appellate Body and its Secretariat do their work.
 

There are also certain arrangements that the participants have jointly imposed on themselves and that do not appear to affect the Appellate Body’s ability to adjudicate the dispute, the rights of the third participants, or the rights and interests of the WTO membership at large. This includes, for example, the arrangements mentioned earlier allowing each participant to have access to the most sensitive information provided by the other participant. Such arrangements, in principle, are not exempt from our scrutiny to verify that they do not impair our adjudicative function and the rights and interests of third participants and other Members. Nevertheless, at this stage of the proceedings, we are disinclined to make an exhaustive review of these arrangements given that on their face they do not seem to have adverse implications for the rights or interests of others that we identified earlier. Furthermore, none of the third participants has raised concerns in relation to this aspect of the matter.
 

Some of the other arrangements proposed by the participants impinge, i.e., encroach, upon the rights of the third participants that are guaranteed under Article 17.4 of the DSU and Rules 18, 24, and 27 of the Working Procedures. For instance, the participants’ proposal provides for access to sensitive information for a very limited number of representatives of the third participants. In fact, the number of approved persons proposed is smaller than it was before the Panel. Several of the third participants have expressed concern over the limited number of their representatives that would be allowed access to sensitive information. We share their concerns and thus have allowed in the additional procedures for a higher number of third participant approved persons.
 

The third participants have also expressed concern over the participants’ proposal that third participants access the sensitive information in a designated reading room located at the WTO. We would have preferred that mechanisms be explored further that would have permitted providing the third participants with copies of the Panel Report containing sensitive information and of non-redacted versions of the submissions to keep at their Geneva Missions and to share these with their capital-based officials working on this appeal, while safeguarding the participants’ interest in minimizing the risks of disclosure. Another option would have been to provide access to the sensitive information at the diplomatic Missions of the participants in Geneva and/or in the capitals of the third participants. However, it would have been quite challenging, for all of those involved, to design and implement any such regime without delay and there is a need to proceed expeditiously with the appellate process.
 

Thus, the additional procedures that we adopt below provide for third participants to view the Panel Report version containing sensitive information and the non-redacted versions of the submissions in a designated reading room located at the WTO. Approved persons of third participants shall also be allowed to have access, in the reading room, to an individually watermarked, colour copy of the redacted version of the Panel Report as circulated to Members and to an individually watermarked, colour copy of each of the redacted submissions filed in the appellate proceedings, and shall be allowed to use them to take handwritten notes. They may take these copies with them, but may only share them with other approved persons. These copies of the Panel Report and the submissions, as well as any handwritten notes taken by the approved person in the designated reading room, must be returned to the Appellate Body Secretariat after the final oral hearing in this appeal. The content of any handwritten notes shall not be incorporated into any other copy of the Panel Report or of the submissions. We consider that this regime offers the participants substantially the same level of protection of their sensitive information as the regime provided in their proposal, but is less burdensome on the third participants.
 

The participants have further proposed that third participants be excluded from having access to the information that is treated as most sensitive, that is, the information that the participants have labelled as “HSBI”. We recall that, under Article 17.4 of the DSU and Rule 24 of the Working Procedures, third participants may make written submissions to, and be given an opportunity to be heard by, the Appellate Body. Rule 18(2) of the Working Procedures further provides that, “[e]xcept as otherwise provided in these Rules, every document filed by … a participant … or a third participant shall be served on each of the … third participants in the appeal”. At the same time, the Appellate Body has recognized that the rights of third participants are more limited than those of the participants, and that the third participants’ interests lie mainly in the correct legal interpretation of the provisions of the WTO agreements. We also note that participation as a third participant is elective and that, in the present case, none of the third participants have expressed specific concerns in their written comments or at the special oral hearing about not having access to the most sensitive information. On the contrary, several third participants did voice support, in principle, for the limitation on access to the most sensitive information.
 

The arrangements proposed by the participants may also impinge on the rights of the WTO membership at large. As discussed above, WTO Members have a right to obtain an Appellate Body report that gives a sufficient exposition of our reasoning and findings in a manner that is understandable. Adopted Appellate Body reports clarify the provisions of the covered agreements, in accordance with Article 3.2 of the DSU, and become part of the acquis of WTO law. Moreover, the DSB will be responsible for the surveillance of the implementation of its recommendations and rulings should this be necessary. The participants have requested an opportunity to ask for the removal of sensitive information that may, inadvertently or not, be included in our report. We are open to this request. We will make every effort to draft our report without including information that the participants consider to be sensitive by limiting ourselves to making statements or drawing conclusions that are based on the sensitive information. Yet, whether this is possible will only become clear once we have drafted our report. The additional procedures that we adopt below provide that, if we were to consider it necessary to include sensitive information in the reasoning in our report, the participants shall be given an opportunity to comment. In coming to a decision on the need to include sensitive information to ensure that the report rendered is understandable, we will strike an appropriate balance between the rights of the WTO membership at large to obtain a report that gives a sufficient exposition of our reasoning and findings, on the one hand, and the legitimate concerns of participants to protect sensitive information, on the other. The more prejudicial disclosure is proven to be, the more we would be inclined to accept that the information is not disclosed.
 

The European Union has requested that we explicitly provide that the participants shall have the option of withdrawing information that they consider most sensitive instead of seeing it included in the Appellate Body report (should the Appellate Body decide it must be included). The European Union explains that, since a party usually provides evidence that it considers supportive of its case, it should be allowed to withdraw this evidence. The Appellate Body could then draw an inference that is adverse to the party withdrawing the evidence. While it is conceivable that a party may choose not to rely on certain evidence on record, we believe that the issues raised by this request are more complex than the European Union considers them to be and may have consequences not only for the party that seeks withdrawal. Evidence on record may be probative of the case of a party other than the party that seeks withdrawal. Moreover, the Appellate Body may have to decide claims under Article 11 of the DSU on the basis of the entire record before the panel. Further, in situations in which the Appellate Body is considering whether to complete the legal analysis, adverse inferences may not necessarily be of assistance. The European Union’s request raises a number of complex questions that are difficult to resolve in the abstract and at this preliminary stage of the appellate proceedings. We prefer to explore these questions at the appropriate time after hearing the participants’ views on specific issues, and only if the extreme situation on which they are premised arises.
 

Finally, we recognize that, in Brazil — Aircraft and Canada — Aircraft, the Appellate Body did not consider it necessary, in the circumstances of those appeals, to adopt additional procedures to protect information deemed sensitive by the participants. In doing so, however, the Appellate Body did not suggest that the DSU, the other covered agreements, or the Working Procedures precluded the adoption of procedures providing additional protection; rather, the Appellate Body did not consider that such additional protection was necessary in the particular circumstances of those appeals.
 

In deciding to adopt additional procedures in this appeal, we make our determination in the light of the particular circumstances of this dispute, as the Appellate Body did in the Brazil — Aircraft and Canada — Aircraft disputes. While the Brazil — Aircraft and Canada — Aircraft disputes only involved claims that certain measures were export subsidies, this dispute involves not only export subsidy claims, but also numerous claims that certain measures are specific subsidies that have various forms of adverse effects. This means that the evidentiary record in this dispute is more extensive and includes more detailed information that is company-specific, such as data concerning productivity, cost efficiencies and inefficiencies, prices for specific aircraft currently in production and marketed, recurring and non-recurring cost structures per unit, price calculations and pricing practices — in particular sales campaigns and, more generally, arrangements with developers and manufacturers of outsourced components, privileged advice by investment advisors on pricing and other terms of financial instruments, as well as other information pertaining to customers and suppliers that allegedly is not in the public domain. Furthermore, the particular market structure within which these companies operate does not allow for the aggregation of data in a way that would expose specific companies to a more limited risk of disclosure vis-à-vis potential competitors. Given its nature, disclosure of the sensitive information on the record of this dispute may pose particular risks and give rise to potential harm that justifies more detailed procedures for its protection. We are also mindful that more than ten years have elapsed since the Appellate Body made its rulings in the Brazil — Aircraft and Canada — Aircraft disputes, and since then several WTO panels have provided for additional protection of sensitive information.
 

For the reasons set out above, we have decided to provide additional confidentiality protection on the terms set out below. Accordingly, we adopt the [additional procedures set out in paragraph 28 of Annex III to the Report.]
 

B.4.9 EC and certain member States — Large Civil Aircraft, para. 20 and Footnote 69     back to top
(WT/DS316/AB/R)

On 11 and 12 August 2010, pursuant to paragraph 28(xiv) of the Additional Procedures, the participants each provided a list of persons designated as “BCI-Approved Persons” and persons designated as “HSBI-Approved Persons”. Likewise, in accordance with paragraph 28(xvi) of the Additional Procedures, each of the third participants designated up to six individuals as “Third Participant BCI-Approved Persons” on 12 August 2010. On 13 August 2010, the European Union objected to the designation by Japan of an outside advisor as a Third Participant BCI-Approved Person, pursuant to paragraph 28(xvi) of the Additional Procedures. Specifically, the European Union referred to the provision in paragraph 28(xvi) that “[t]he participants may object to the designation of an outside advisor as a Third Participant BCI-Approved Person” and that “[t]he Division will only reject the designation of an outside advisor … upon a showing of compelling reasons”.69 On 23 August 2010, the European Union and Japan informed the Appellate Body that they had reached a “bilateral resolution of the issue”. Consequently, the European Union withdrew its objection to Japan’s list of BCI-Approved Persons and its request for a ruling by the Division. Subsequently, the European Union, Canada, the United States, and Japan each requested to make changes to their respective list. The Division provided the participants and the third participants with the opportunity to comment in writing on the requests. No objections were made by the participants or the third participants. The Division authorized all of the changes requested.
 

B.4.10 EC and certain member States — Large Civil Aircraft, para. 26     back to top
(WT/DS316/AB/R)

The substantive oral hearing in this appeal took place in two sessions: the first on 11–17 November and the second on 9–14 December 2010. Pursuant to the Procedural Ruling, the participants did not refer to any BCI or HSBI in their opening and closing statements, and the third participants did not refer to any BCI in their opening and closing statements. The opening and closing statements of the participants and the third participants were videotaped, with the exception of China (at the second session only) and Korea. After the participants reviewed the videotapes and confirmed that no BCI or HSBI had been inadvertently uttered, the recording of the opening and closing statements were broadcast to the public on 25 November and 17 December 2010 respectively.
 

B.4.11 EC and certain member States — Large Civil Aircraft, para. 28     back to top
(WT/DS316/AB/R)

Pursuant to paragraph 28(xiii) of the Procedural Ruling of 10 August 2010, we informed the participants and the third participants, on 27 April 2011, that we had not found it necessary to include in the Appellate Body report intended for circulation to WTO Members information that was treated by the Panel as BCI or HSBI. Paragraph 28(xiii) of the Procedural Ruling foresees that an advance copy of the Appellate Body report intended for circulation to WTO Members will be provided to the European Union and the United States in order for them to indicate whether any BCI or HSBI was inadvertently included in the report. The advance copy of the Appellate Body report was provided to the European Union and the United States on 2 May 2011. They were requested to indicate, by 6 May 2011, whether any BCI or HSBI was inadvertently included in the report. On 6 May, the United States indicated that it had not found any BCI or HSBI outside of the text encompassed in square brackets in the Appellate Body report intended for circulation, and the European Union indicated that it had identified only one instance in which confidential information had been inadvertently included. On 10 May 2011, the Division informed the European Union and the United States that it had redacted the confidential information concerned from the Appellate Body report to be circulated to Members.
 

B.4.12 Philippines — Distilled Spirits, Footnote 12 to para. 5     back to top
(WT/DS396/AB/R, WT/DS403/AB/R)

The Philippines provided the third participants with copies of its appellant’s submission that did not contain certain information that was considered business confidential information in the Panel proceedings (pursuant to the Additional Working Procedures Concerning Business Confidential Information, adopted by the Panel on 31 August 2010). This information was, however, included in the copies of the Philippines’ appellant’s submission filed with the Appellate Body and served on the European Union and the United States. Following an enquiry from the Appellate Body Secretariat on 14 October 2011, the Philippines provided, on 18 October 2011, copies of its appellant’s submission containing the business confidential information to the third participants. The Philippines requested the third participants to treat such information as confidential. In response to questioning at the oral hearing in this appeal, the participants and third participants confirmed to the Appellate Body that the information the Philippines had designated as business confidential in its appellant’s submission was governed by the confidentiality rules of Article 18.2 of the DSU.
 

B.4.13 US — Large Civil Aircraft (2nd complaint), para. 23 and Footnote 86     back to top
(WT/DS353/AB/R)

… on 1 April 2011, the Appellate Body received a request from the European Union that the Appellate Body adopt additional procedures to protect BCI and HSBI in these appellate proceedings.86 The European Union explained that the reasons for this request were substantially the same as the reasons given by the participants in EC and certain member States — Large Civil Aircraft, namely, that disclosure of confidential information (which in this dispute includes company-specific data on productivity, costs, prices, sales campaigns, commercial agreements, and privileged advice) could be “severely prejudicial” to the originators of the information, that is, to the manufacturers of LCA, as well as their customers and suppliers. The European Union requested the adoption of a procedural ruling with substantially the same terms as the one adopted by the Appellate Body in EC and certain member States — Large Civil Aircraft. On the same day, the Appellate Body Division selected to hear this appeal invited the United States and the third parties to comment in writing on the European Union’s request, and informed the participants and third parties of its decision to adopt temporary precautions to protect confidential information. Given that the Panel record was, in accordance with Rule 25 of the Working Procedures, to be transmitted to the Appellate Body immediately upon the filing of a Notice of Appeal, the Division decided to provide additional protection to all BCI and HSBI transmitted to the Appellate Body as part of that record, pending its final decision on the European Union’s request.
 

B.4.14 US — Large Civil Aircraft (2nd complaint), para. 24     back to top
(WT/DS353/AB/R)

… The United States shared the European Union’s view that it was necessary for the Division to adopt BCI/HSBI procedures in this appeal. Overall, the United States agreed that the Appellate Body procedural ruling in EC and certain member States — Large Civil Aircraft would serve as an appropriate basis for a procedural ruling on the protection of sensitive information in this appeal, with certain modifications made in the light of the previous experience. The third participants expressed their support for, or did not oppose, the request of the European Union, and suggested certain modifications to the proposed procedures in order to ensure that the rights of third participants to participate meaningfully in these appellate proceedings would be fully protected. On 15 April 2011, the Division issued a Procedural Ruling adopting Additional Procedures to Protect Sensitive Information (the “Additional Procedures”), pursuant to Rule 16(1) of the Working Procedures. …
 

B.4.15 US — Large Civil Aircraft (2nd complaint), Annex III, paras. 1 and 3–5     back to top
(WT/DS353/AB/R)

On 1 April 2011, the Director of the Appellate Body Secretariat received a letter from the European Union requesting that the Appellate Body Division hearing this appeal adopt a procedural ruling on confidentiality and interim additional protection for sensitive business information in the appeal in United States — Measures Affecting Trade in Large Civil Aircraft (Second Complaint) (WT/DS353) (“US — Large Civil Aircraft (2nd complaint)”). In its letter, the European Union referred to the additional procedures adopted by the Appellate Body in European Communities and certain member States — Measures Affecting Trade in Large Civil Aircraft (WT/DS316) (“EC and certain member States — Large Civil Aircraft”). The European Union noted that the circumstances of the present case are very similar to those in EC and certain member States — Large Civil Aircraft, and requested a procedural ruling in substantially the same terms and for the same reasons. The European Union argued that, inter alia, disclosure of certain sensitive information on the record of the Panel proceedings could be “severely prejudicial” to the originators of the information, that is, to the large civil aircraft manufacturers, and possibly to the manufacturers’ customers and suppliers.
 

...
 

Pending a final decision on the European Union’s request, the Division decided to provide interim additional protection to all BCI and HSBI transmitted to the Appellate Body in this dispute on the terms set out below:(a) Only Appellate Body Members and Appellate Body Secretariat staff assigned to work on this appeal may have access to the BCI and HSBI contained in the Panel record pending a final decision on the European Union’s request. Appellate Body Members and Appellate Body Secretariat staff shall not disclose BCI or HSBI, or allow either to be disclosed, to any person other than those identified in the preceding sentence.(b) BCI shall be stored in locked cabinets when not in use. When in use by Appellate Body Members and Appellate Body Secretariat staff assigned to work on this appeal all necessary precautions will be taken to protect the confidentiality of the BCI.(c) All HSBI shall be stored in a combination safe in a designated secure location in the offices of the Appellate Body Secretariat. Appellate Body Members and Appellate Body Secretariat staff assigned to work on this appeal may view HSBI only in the designated secure location in the offices of the Appellate Body Secretariat. HSBI shall not be removed from this location.(d) Neither BCI nor HSBI shall be transmitted electronically, whether by e-mail, facsimile, or any other means.
 

… The United States expressed its general support for the request of the European Union and said it shared the European Union’s view that the Procedural Ruling of the Appellate Body in EC and certain member States — Large Civil Aircraft would serve as an appropriate basis for a procedural ruling on additional protection of sensitive information in this appeal, with certain modifications made in the light of experience under the operation of the procedural ruling in that dispute.
 

On the same day, the European Union indicated via e-mail communication that it did not disagree with the United States’ comments regarding the modifications that could be made to the Procedural Ruling adopted by the Appellate Body in EC and certain member States — Large Civil Aircraft. …
 

B.4.16 US — Large Civil Aircraft (2nd complaint), Annex III, paras. 7–12     back to top
(WT/DS353/AB/R)

We recall that the Appellate Body adopted additional procedures to protect the confidentiality of sensitive information in the appellate proceedings in EC and certain member States — Large Civil Aircraft. In this appeal, the participants agree that the circumstances of the case are very similar, and the European Union has requested a procedural ruling in substantially the same terms and for the same reasons. We further note that the participants and the third participants involved in this case are the same as those involved in EC and certain member States — Large Civil Aircraft. In the Procedural Ruling adopted in EC and certain member States — Large Civil Aircraft, the Appellate Body explained the considerations relevant to a decision on whether to provide additional protection to certain sensitive information. We believe that those considerations are also relevant to our evaluation of the request of the European Union in this appeal and we briefly recall them before addressing the specific points raised in the request and in the comments of the United States and the third participants.
 

The confidentiality requirements set out in the Understanding on Rules and Procedures Governing the Settlement of Disputes (the “DSU”) and in the Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes (the “Rules of Conduct”) are stated at a high level of generality that may need to be particularized in situations in which the nature of the information provided requires more detailed arrangements to protect adequately the confidentiality of that information. The adoption of such arrangements falls within the authority of the Appellate Body to hear the appeal and to regulate its procedures in a manner that ensures that the proceedings are conducted with fairness and in an orderly manner. To the extent that the arrangements elaborate on the confidentiality requirements of the DSU, the adoption of such arrangements in an “appropriate procedure” needs to conform to the requirement in Rule 16(1) of the Working Procedures, that any additional “appropriate procedure” not be inconsistent with the DSU, the other covered agreements, and the Working Procedures themselves.
 

The determination of whether particular arrangements are appropriate in a given case essentially involves a balancing exercise: the risks associated with the disclosure of the information sought to be protected must be weighed against the degree to which the particular arrangements affect the rights and duties established in the DSU, the other covered agreements, or the Working Procedures. Furthermore, a relationship of proportionality must exist between the risks associated with disclosure and the measures adopted. Participants requesting particularized arrangements have the burden of justifying that such arrangements are necessary in a given case adequately to protect certain information, taking into account the rights and duties recognized in the DSU, the other covered agreements, and the Working Procedures. This burden of justification will increase the more the proposed arrangements affect the exercise by the Appellate Body of its adjudicative duties, the exercise by the participants of their rights to due process and to have the dispute adjudicated, the exercise by the third participants of their participatory rights, and the rights and systemic interests of the WTO membership at large.
 

Additional confidentiality protection implicates the authority of the Appellate Body, and the rights and duties of the participants, third participants, and the membership at large. In EC and certain member States — Large Civil Aircraft, the Appellate Body adopted additional procedures that it considered struck an appropriate balance between the risks of disclosure of sensitive information, on the one hand, and the adjudicative authority of the Appellate Body and the rights and duties of the participants, third participants and the WTO membership at large. We believe that the balance struck by the Appellate Body in EC and certain member States — Large Civil Aircraft is also appropriate in this case. The European Union, the United States, and the third participants concur that the additional procedures adopted in EC and certain member States — Large Civil Aircraft provide an appropriate framework and ask that we apply the same practices in this case, with minor modifications.
 

It is not for the parties to determine whether additional protection is called for. It is for the panel, and now the Appellate Body, to do so. Indeed, it is for the adjudicator to decide whether the information concerned calls for additional protection. Likewise, it is for the adjudicator to decide whether and to what extent specific arrangements are necessary, while safeguarding the various rights and duties that are implicated in any decision to adopt additional protection. As in EC and certain member States — Large Civil Aircraft, we are concerned about the manner in which the parties designated and the Panel treated the sensitive information. There does not appear to have been a meaningful effort during the Panel process to set out objective criteria as to the attributes of the information that may require additional protection so as to guide the determination of whether the particular information that was submitted deserved additional protection and the particular degree of such protection. However, neither participant has appealed the Panel’s decisions on the protection of this information and there are also issues of practicality to consider. We will therefore proceed on the basis of how the information was treated before the Panel. Nevertheless, we do not exclude revisiting whether a particular piece of information meets the objective criteria justifying additional protection, or the particular degree thereof, should a dispute on the classification of that information arise before us, or should we consider that we need to refer to that information in our report if this is necessary to give a sufficient exposition of our reasoning and findings.
 

We further note that there appear to be certain arrangements that the participants have jointly imposed on themselves and that do not appear to affect the Appellate Body’s ability to adjudicate the dispute, the rights of the third participants, or the rights and interests of the WTO membership at large. This includes, for example, the arrangements allowing each participant to have access to the most sensitive information provided by the other participant. Such arrangements, in principle, are not exempt from our scrutiny to verify that they do not impair our adjudicative function and the rights and interests of third participants and other Members. Nevertheless, at this stage of the proceedings, we are disinclined to make an exhaustive review of these arrangements given that on their face they do not seem to have adverse implications for the rights or interests of others that we identified earlier. Furthermore, none of the third participants has raised concerns in relation to this aspect of the matter.
 

B.4.17 US — Large Civil Aircraft (2nd complaint), Annex III, paras. 13–19     back to top
(WT/DS353/AB/R)

Having reaffirmed the relevant considerations that guide our decision, we turn to the specific modifications requested by the participants and third participants.
 

The European Union suggests that provision should be made in any procedural ruling in this dispute for the amendment of lists of persons that are BCI-Approved Persons and HSBI-Approved Persons. The United States agrees. The United States argues that, in EC and certain member States — Large Civil Aircraft, the absence of any provision for amending BCI/HSBI lists in the procedural ruling left unclear whether amendment of BCI/HSBI lists was permissible and, if so, what the procedures were for amending such lists. According to the United States, “additional certainty and clarity would be of benefit to the participants and third participants in this appeal”. We have made certain changes to the additional procedures in order to allow amendments to the lists of BCI-Approved Persons, HSBI-Approved Persons, and Third Participant BCI-Approved Persons in this appeal. As with the initial lists, objections will be permitted where the amendment refers to the designation of outside advisors.
 

The European Union points out that the Procedural Ruling of the Appellate Body in EC and certain member States — Large Civil Aircraft provides for participants to comment on the inclusion of BCI and HSBI in the Appellate Body report and states that comments are to be allowed “within a time period to be specified by the Division”. The European Union argues that the appropriate time period should be a function of the length and content of the report, and therefore that no further precision is required at this stage. The European Union adds that it is content to leave this matter to the discretion of the Appellate Body. The European Union considers that a short period of review would suffice, but indicates that it would be more effective if review were conducted in capital. The United States says it appreciates the Appellate Body’s willingness in EC and certain member States — Large Civil Aircraft to permit the participants to review the Appellate Body report for inadvertent inclusion of BCI/HSBI prior to circulation and public release, and requests the Appellate Body to permit such review in the US — Large Civil Aircraft (2nd complaint) appeal as well, as it believes “that additional clarity and certainty with respect to the procedures for such review would be of benefit to the participants in terms of planning and allocating resources for the review”. The United States further agrees with the European Union that “the length of time necessary for review will depend on the length and content of the Appellate Body report, and that review in capital would be preferable if the period for review is short”. While recognizing that it may not be possible at this point to foresee the time that will be required for such review, the United States requests the Appellate Body to indicate in its procedural ruling that further guidance will be provided to the participants later in the proceedings in order to allow them time to plan and allocate resources.
 

As in EC and certain member States, we will make every effort to draft our report without including sensitive information. The additional procedures that we adopt below foresee that the participants will be provided in advance with a copy of the Appellate Body report intended for circulation to WTO Members and will have an opportunity to request the removal of any sensitive information that is inadvertently included in the report. If we were to consider it necessary to include sensitive information in the reasoning in our report, the participants will be given an opportunity to comment. We reiterate that the participants will have a timely opportunity to comment as to the inclusion of any sensitive information in the report; we will provide further guidance at a later point of these proceedings as to the details of such a procedure.
 

The European Union and the United States recall that the Appellate Body provided in its Procedural Ruling in EC and certain member States — Large Civil Aircraft that it would “indefinitely” retain BCI and HSBI on the record of the appeal. Although the participants opposed such measures in that case, they consider that the Appellate Body should treat information in the two disputes identically. We have taken note of this comment by the participants but consider that retaining one hard copy and one electronic version of all documents containing BCI and HSBI as part of the appellate record is useful in the eventuality of a compliance proceeding under Article 21.5 of the DSU. The Appellate Body is an adjudicative body of record and thus it is imperative that a copy of the record be kept as part of the adjudication.
 

Brazil and Japan have requested a small increase in the maximum number of Third Participant BCI-Approved Persons that may be designated by each third participant. We recognize that the limitation on the number of representatives that may have access to sensitive information can make it difficult for third participants to participate fully in these proceedings. Thus, we have increased the maximum number of persons that may be designated by each third participant to eight, and we do not believe that this small adjustment will increase the risk of unauthorized disclosure of sensitive information.
 

For the reasons set out above, we have decided to provide additional confidentiality protection on the terms set out below. Accordingly, we adopt the [additional procedures set out in paragraph 19 of Annex III.]
 

B.4.18 US — Large Civil Aircraft (2nd complaint), para. 25     back to top
(WT/DS353/AB/R)

On 19 April 2011, pursuant to paragraph 19(xiv) of the Additional Procedures, the participants each provided a list of persons designated as “BCI-Approved Persons” and persons designated as “HSBI-Approved Persons”. On the same day, in accordance with paragraph 19(xvi) of the Additional Procedures, the third participants each provided a list of up to eight individuals designated as “Third Participant BCI-Approved Persons”. Requests to change the BCI/HSBI-Approved Persons and Third Participants BCI-Approved Persons lists were subsequently submitted by the European Union, the United States, Australia, Brazil, Canada, and Korea. The Division provided the participants and third participants with the opportunity to comment on each request. No objections were made and all of the requests were authorized by the Division.
 

B.4.19 US — Large Civil Aircraft (2nd complaint), para. 26     back to top
(WT/DS353/AB/R)

Upon receipt of the European Union’s request for additional procedures for the protection of BCI and HSBI in these proceedings, the Division decided to suspend the deadlines that would otherwise apply under the Working Procedures for the filing of a Notice of Other Appeal and for the filing of written submissions. …
 

B.4.20 US — Large Civil Aircraft (2nd complaint), para. 32     back to top
(WT/DS353/AB/R)

The oral hearing in this appeal took place in two sessions: the first on 16–19 August 2011, and the second on 11–14 October 2011. Pursuant to the Procedural Ruling of 26 July 2011, the participants and third participants did not refer to any BCI or HSBI in their opening statements at either session of the oral hearing. The opening statements of the participants and third participants, with the exception of China and Korea, were videotaped at both the first and second sessions of the oral hearing. Upon confirmation that no BCI or HSBI had been inadvertently uttered, the videotapes of the opening statements were broadcast on 23 August and 18 October 2011 to those members of the public who had registered for the viewing. No participant or third participant made a closing statement at either session of the oral hearing.
 

B.4.21 US — Large Civil Aircraft (2nd complaint), para. 34     back to top
(WT/DS353/AB/R)

Pursuant to paragraph 19(xiii) of the Procedural Ruling of 15 April 2011, the Division informed the participants and third participants, on 23 February 2012, that it had found it necessary to include in the Appellate Body Report some references to information that was treated by the Panel as BCI or HSBI. Also pursuant to paragraph 19(xiii) of the Procedural Ruling, an advance copy of the Appellate Body Report was provided to the European Union and the United States on 29 February 2012. Both participants were requested to indicate, by 5 March 2012, whether there was a continuing need to treat all of the business sensitive information in the same manner as the Panel, and whether any BCI or HSBI had been included in the Appellate Body Report without having been identified as such. … The Division modified the one inadvertent disclosure of BCI information, as suggested by the United States, so as to avoid the need for BCI protection. The Division decided to remove BCI protection in certain instances in which the participants suggested, or did not object to, such removal.
 

B.4.22 US — COOL, Footnote 57 to para. 12     back to top
(WT/DS384/AB/R, WT/DS386/AB/R)

The Panel adopted additional working procedures for the protection of BCI. … None of the participants requested the Appellate Body to adopt additional procedures for the protection of BCI in these appellate proceedings, and the Appellate Body has not done so in this appeal.
 

 

69. According to the European Union, the outside advisor designated by Japan was a partner of a law firm in which another partner, as a former counsel to Airbus in this dispute, had been privy to confidential information concerning certain measures at issue during the Panel proceedings. …     back to text

86. Previously, on 23 March 2011, the European Union had sent a letter to the Director of the Appellate Body Secretariat suggesting, in the event of an appeal of the Panel Report in this dispute, the adoption of additional procedures concerning the treatment of BCI and HSBI in the appellate proceedings.     back to text


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