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> EC — Hormones, para. 154
> US — 1916 Act, para. 150
> US — FSC (Article 21.5 — EC), para. 243
> US — FSC (Article 21.5 — EC), para. 245
> US — FSC (Article 21.5 — EC), para. 249
> Chile — Price Band System, para. 163
T.8.1 EC — Hormones, para. 154 back to top
… Although Article 12.1 and Appendix 3 of the DSU do not specifically require the Panel to grant … [“enhanced” third party rights] to the United States, we believe that this decision falls within the sound discretion and authority of the Panel, particularly if the Panel considers it necessary for ensuring to all parties due process of law. …
T.8.2 US — 1916 Act, para. 150 back to top
A panel’s decision whether to grant “enhanced” participatory rights to third parties is thus a matter that falls within the discretionary authority of that panel. Such discretionary authority is, of course, not unlimited and is circumscribed, for example, by the requirements of due process. In the present cases, however, the European Communities and Japan have not shown that the Panel exceeded the limits of its discretionary authority. …
T.8.3 US — FSC (Article 21.5 — EC), para. 243 back to top
… the rights of third parties in panel proceedings are limited to the rights granted under Article 10 and Appendix 3 to the DSU. Beyond those minimum guarantees, panels enjoy a discretion to grant additional participatory rights to third parties in particular cases, as long as such “enhanced” rights are consistent with the provisions of the DSU and the principles of due process. However, panels have no discretion to circumscribe the rights guaranteed to third parties by the provisions of the DSU.
T.8.4 US — FSC (Article 21.5 — EC), para. 245 back to top
Article 10.3 of the DSU is couched in mandatory language. By its terms, third parties “shall” receive “the submissions of the parties to the first meeting of the panels” (emphasis added). Article 10.3 does not say that third parties shall receive “the first submissions” of the parties, but rather that they shall receive “the submissions” of the parties (emphasis added). The number of submissions that third parties are entitled to receive is not stated. Rather, Article 10.3 defines the submissions that third parties are entitled to receive by reference to a specific step in the proceedings — the first meeting of the panel. It follows, in our view, that, under this provision, third parties must be given all of the submissions that have been made by the parties to the panel up to the first meeting of the panel, irrespective of the number of such submissions which are made, including any rebuttal submissions filed in advance of the first meeting.
T.8.5 US — FSC (Article 21.5 — EC), para. 249 back to top
… Article 10.1 directs panels “fully” to take into account the interests of Members other than the parties to the dispute, and Article 10.2 requires panels to grant to third parties “an opportunity to be heard”. Article 10.3 ensures that, up to a defined stage in the panel proceedings, third parties can participate fully in the proceedings, on the basis of the same written submissions as the parties themselves. Article 10.3 thereby seeks to guarantee that the third parties can participate at a session of the first meeting with the panel in a full and meaningful fashion that would not be possible if the third parties were denied written submissions made to the panel before that meeting. Moreover, panels themselves will thereby benefit more from the contributions made by third parties and will, therefore, be better able “fully” to take into account the interests of Members, as directed by Article 10.1 of the DSU.
T.8.6 Chile — Price Band System, para. 163 back to top
… Third parties to a dispute cannot make claims. It was for Argentina, as the claimant, to make its claim; Argentina cannot rely on third parties to do so on its behalf. Moreover, we note that Argentina did not adopt these arguments of the third parties in subsequent proceedings.
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