Definitions1.
“covered
agreements” has the same meaning as “covered agreements” in paragraph 1 of
Article 1 of the DSU; “division” means the three Members who are selected to
serve on any one appeal in accordance with paragraph 1 of Article 17 of the DSU and
paragraph 2 of Rule 6; “documents” means the Notice of Appeal and the
submissions and other written statements presented by the participants; “DSB”
means the Dispute Settlement Body established under Article 2 of the DSU; “DSU”
means the Understanding on Rules and Procedures Governing the Settlement of Disputes which
is Annex 2 to the WTO Agreement; “Member” means a Member of the Appellate Body
who has been appointed by the DSB in accordance with Article 17 of the DSU;
“participant” means any party to the dispute that has filed a Notice of Appeal
pursuant to Rule 20 or a submission pursuant to Rule 22 or paragraphs 1 or 3 of Rule 23;
“party to the dispute” means any WTO Member who was a complaining or defending
party in the panel dispute, but does not include a third party; “proof of
service” means a letter or other written acknowledgement that a document has been
delivered, as required, to the parties to the dispute, participants, third parties or
third participants, as the case may be; “Rules” means these Working Procedures
for Appellate Review; “Rules of Conduct” means the Rules of Conduct for the
Understanding on Rules and Procedures Governing the Settlement of Disputes as attached in
Annex II to these Rules; “SCM Agreement” means the Agreement on Subsidies and
Countervailing Measures which is in Annex 1A to the WTO Agreement; “Secretariat”
means the Appellate Body Secretariat;“service address” means the address of the
party to the dispute, participant, third party or third participant as generally used in
WTO dispute settlement proceedings, unless the party to the dispute, participant, third
party or third participant has clearly indicated another address; “third
participant” means any third party that has filed a submission pursuant to Rule 24;
“third party” means any WTO Member who has notified the DSB of its substantial
interest in the matter before the panel pursuant to paragraph 2 of Article 10 of the DSU;
“WTO” means the World Trade Organization; “WTO Agreement” means the
Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh, Morocco
on 15 April 1994; “WTO Member” means any State or separate customs territory
possessing full autonomy in the conduct of its external commercial relations that has
accepted or acceded to the WTO in accordance with Articles XI, XII or XIV of the WTO
Agreement; and “WTO Secretariat” means the Secretariat of the World Trade
Organization.
Part I
Members
Duties and Responsibilities
2.
(1) A Member
shall abide by the terms and conditions of the DSU, these Rules and any decisions of the
DSB affecting the Appellate Body.
(2) During
his/her term, a Member shall not accept any employment nor pursue any professional
activity that is inconsistent with his/her duties and responsibilities.
(3) A Member
shall exercise his/her office without accepting or seeking instructions from any
international, governmental, or non-governmental organization or any private source.
(4) A Member
shall be available at all times and on short notice and, to this end, shall keep the
Secretariat informed of his/her whereabouts at all times.
Decision-Making
3.
(1) In
accordance with paragraph 1 of Article 17 of the DSU, decisions relating to an appeal
shall be taken solely by the division assigned to that appeal. Other decisions shall be
taken by the Appellate Body as a whole.
(2) The
Appellate Body and its divisions shall make every effort to take their decisions by
consensus. Where, nevertheless, a decision cannot be arrived at by consensus, the matter
at issue shall be decided by a majority vote.
Collegiality
4.
(1) To ensure
consistency and coherence in decision-making, and to draw on the individual and collective
expertise of the Members, the Members shall convene on a regular basis to discuss matters
of policy, practice and procedure.
(2) The
Members shall stay abreast of dispute settlement activities and other relevant activities
of the WTO and, in particular, each Member shall receive all documents filed in an appeal.
(3) In
accordance with the objectives set out in paragraph 1, the division responsible for
deciding each appeal shall exchange views with the other Members before the division
finalizes the appellate report for circulation to the WTO Members. This paragraph is
subject to paragraphs 2 and 3 of Rule 11.
(4) Nothing
in these Rules shall be interpreted as interfering with a division's full authority and
freedom to hear and decide an appeal assigned to it in accordance with paragraph 1 of
Article 17 of the DSU.
Chairman
5.
(1) There
shall be a Chairman of the Appellate Body who shall be elected by the Members.
(2) The term
of office of the Chairman shall be one year. In order to ensure rotation of the
Chairmanship, no Member shall serve as Chairman for more than one term consecutively.
(3) The
Chairman shall be responsible for the overall direction of the Appellate Body business,
and in particular, his/her responsibilities shall include:
(a) the
supervision of the internal functioning of the Appellate Body; and
(b) any such
other duties as the Members may agree to entrust to him/her.
(4) Where the
office of the Chairman becomes vacant due to permanent incapacity as a result of illness
or death or by resignation or expiration of his/her term, the Members shall elect a new
Chairman who shall serve a full term in accordance with paragraph 2.
(5) In the
event of a temporary absence or incapacity of the Chairman, the Appellate Body shall
authorize another Member to act as Chairman ad interim, and the Member so authorized shall
temporarily exercise all the powers, duties and functions of the Chairman until the
Chairman is capable of resuming his/her functions.
Divisions
6.
(1) In
accordance with paragraph 1 of Article 17 of the DSU, a division consisting of three
Members shall be established to hear and decide an appeal.
(2) The
Members constituting a division shall be selected on the basis of rotation, while taking
into account the principles of random selection, unpredictability and opportunity for all
Members to serve regardless of their national origin.
(3) A Member
selected pursuant to paragraph 2 to serve on a division shall serve on that division,
unless:
(i) he/she is
excused from that division pursuant to Rules 9 or 10;
(ii) he/she
has notified the Chairman and the Presiding Member that he/she is prevented from serving
on the division because of illness or other serious reasons pursuant to Rule 12; or
(iii) he/she
has notified his/her intentions to resign pursuant to Rule 14.
Presiding Member of the Division
7.
(1) Each
division shall have a Presiding Member, who shall be elected by the Members of that
division.
(2) The
responsibilities of the Presiding Member shall include:
(a)
coordinating the overall conduct of the appeal proceeding;
(b) chairing
all oral hearings and meetings related to that appeal; and
(c)
coordinating the drafting of the appellate report.
(3) In the
event that a Presiding Member becomes incapable of performing his/her duties, the other
Members serving on that division and the Member selected as a replacement pursuant to Rule
13 shall elect one of their number to act as the Presiding Member.
Rules of Conduct
8.
(1) On a
provisional basis, the Appellate Body adopts those provisions of the Rules of Conduct for
the Understanding on Rules and Procedures Governing the Settlement of Disputes, attached
in Annex II to these Rules, which are applicable to it, until Rules of Conduct are
approved by the DSB.
(2) Upon
approval of Rules of Conduct by the DSB, such Rules of Conduct shall be directly
incorporated and become part of these Rules and shall supersede Annex II.
9.
(1) Upon the
filing of a Notice of Appeal, each Member shall take the steps set out in Article
V:4(b)(i) of Annex II, and a Member may consult with the other Members prior to completing
the disclosure form.
(2) Upon the
filing of a Notice of Appeal, the professional staff of the Secretariat assigned to that
appeal shall take the steps set out in Article V:4(b)(ii) of Annex II.
(3) Where
information has been submitted pursuant to Article V:4(b)(i) or (ii) of Annex II, the
Appellate Body shall consider whether further action is necessary.
(4) As a
result of the Appellate Body's consideration of the matter pursuant to paragraph 3, the
Member or the professional staff member concerned may continue to be assigned to the
division or may be excused from the division.
10.
(1) Where
evidence of a material violation is filed by a participant pursuant to Article VII of
Annex II, such evidence shall be confidential and shall be supported by affidavits made by
persons having actual knowledge or a reasonable belief as to the truth of the facts
stated.
(2) Any
evidence filed pursuant to Article VII:1 of Annex II shall be filed at the earliest
practicable time: that is, forthwith after the participant submitting it knew or
reasonably could have known of the facts supporting it. In no case shall such evidence be
filed after the appellate report is circulated to the WTO Members.
(3) Where a
participant fails to submit such evidence at the earliest practicable time, it shall file
an explanation in writing of the reasons why it did not do so earlier, and the Appellate
Body may decide to consider or not to consider such evidence, as appropriate.
(4) While
taking fully into account paragraph 5 of Article 17 of the DSU, where evidence has been
filed pursuant to Article VII of Annex II, an appeal shall be suspended for fifteen days
or until the procedure referred to in Article VII:14-16 of Annex II is completed,
whichever is earlier.
(5) As a
result of the procedure referred to in Article VII:14-16 of Annex II, the Appellate Body
may decide to dismiss the allegation, to excuse the Member or professional staff member
concerned from being assigned to the division or make such other order as it deems
necessary in accordance with Article VII of Annex II.
11.
(1) A Member
who has submitted a disclosure form with information attached pursuant to Article
V:4(b)(i) or is the subject of evidence of a material violation pursuant to Article VII:1
of Annex II, shall not participate in any decision taken pursuant to paragraph 4 of Rule 9
or paragraph 5 of Rule 10.
(2) A Member
who is excused from a division pursuant to paragraph 4 of Rule 9 or paragraph 5 of Rule 10
shall not take part in the exchange of views conducted in that appeal pursuant to
paragraph 3 of Rule 4.
(3) A Member
who, had he/she been a Member of a division, would have been excused from that division
pursuant to paragraph 4 of Rule 9, shall not take part in the exchange of views conducted
in that appeal pursuant to paragraph 3 of Rule 4.
Incapacity
12.
(1) A Member
who is prevented from serving on a division by illness or for other serious reasons shall
give notice and duly explain such reasons to the Chairman and to the Presiding Member.
(2) Upon
receiving such notice, the Chairman and the Presiding Member shall forthwith inform the
Appellate Body.
Replacement
13.
Where a
Member is unable to serve on a division for a reason set out in paragraph 3 of Rule 6,
another Member shall be selected forthwith pursuant to paragraph 2 of Rule 6 to replace
the Member originally selected for that division.
Resignation
14.
(1) A Member
who intends to resign from his/her office shall notify his/her intentions in writing to
the Chairman of the Appellate Body who shall immediately inform the Chairman of the DSB,
the Director-General and the other Members of the Appellate Body.
(2) The
resignation shall take effect 90 days after the notification has been made pursuant to
paragraph 1, unless the DSB, in consultation with the Appellate Body, decides otherwise.
Transition
15.
A person who
ceases to be a Member of the Appellate Body may, with the authorization of the Appellate
Body and upon notification to the DSB, complete the disposition of any appeal to which
that person was assigned while a Member, and that person shall, for that purpose only, be
deemed to continue to be a Member of the Appellate Body.
Part II
Process
General Provisions
16.
(1) In the
interests of fairness and orderly procedure in the conduct of an appeal, where a
procedural question arises that is not covered by these Rules, a division may adopt an
appropriate procedure for the purposes of that appeal only, provided that it is not
inconsistent with the DSU, the other covered agreements and these Rules. Where such a
procedure is adopted, the Division shall immediately notify the participants and third
participants in the appeal as well as the other Members of the Appellate Body.
(2) In
exceptional circumstances, where strict adherence to a time period set out in these Rules
would result in a manifest unfairness, a party to the dispute, a participant, a third
party or a third participant may request that a division modify a time period set out in
these Rules for the filing of documents or the date set out in the working schedule for
the oral hearing. Where such a request is granted by a division, any modification of time
shall be notified to the parties to the dispute, participants, third parties and third
participants in a revised working schedule.
17.
(1) Unless
the DSB decides otherwise, in computing any time period stipulated in the DSU or in the
special or additional provisions of the covered agreements, or in these Rules, within
which a communication must be made or an action taken by a WTO Member to exercise or
preserve its rights, the day from which the time period begins to run shall be excluded
and, subject to paragraph 2, the last day of the time-period shall be included.
(2) The DSB
Decision on “Expiration of Time-Periods in the DSU”, WT/DSB/M/7, shall apply to
appeals heard by divisions of the Appellate Body.
Documents
18.
(1) No
document is considered filed with the Appellate Body unless the document is received by
the Secretariat within the time period set out for filing in accordance with these Rules.
(2) Except as
otherwise provided in these Rules, every document filed by a party to the dispute, a
participant, a third party or a third participant shall be served on each of the other
parties to the dispute, participants, third parties and third participants in the appeal.
(3) A proof
of service on the other parties to the dispute, participants, third parties and third
participants shall appear on, or be affixed to, each document filed with the Secretariat
under paragraph 1 above.
(4) A
document shall be served by the most expeditious means of delivery or communication
available, including by:
(a)
delivering a copy of the document to the service address of the party to the dispute,
participant, third party or third participant; or
(b) sending a
copy of the document to the service address of the party to the dispute, participant,
third party or third participant by facsimile transmission, expedited delivery courier or
expedited mail service.
(5) Upon
authorization by the division, a participant or a third participant may correct clerical
errors in any of its submissions. Such correction shall be made within 3 days of the
filing of the original submission and a copy of the revised version shall be filed with
the Secretariat and served upon the other participants and third participants.
Ex Parte Communications
19.
(1) Neither a
division nor any of its Members shall meet with or contact one participant or third
participant in the absence of the other participants and third participants.
(2) No Member
of the division may discuss any aspect of the subject matter of an appeal with any
participant or third participant in the absence of the other Members of the division.
(3) A Member
who is not assigned to the division hearing the appeal shall not discuss any aspect of the
subject matter of the appeal with any participant or third participant.
Commencement of Appeal
20.
(1) An appeal
shall be commenced by notification in writing to the DSB in accordance with paragraph 4 of
Article 16 of the DSU and simultaneous filing of a Notice of Appeal with the Secretariat.
(2) A Notice
of Appeal shall include the following information:
(a) the title
of the panel report under appeal;
(b) the name
of the party to the dispute filing the Notice of Appeal;
(c) the
service address, telephone and facsimile numbers of the party to the dispute; and
(d) a brief
statement of the nature of the appeal, including the allegations of errors in the issues
of law covered in the panel report and legal interpretations developed by the panel.
Appellant's Submission
21.
(1) The
appellant shall, within 10 days after the date of the filing of the Notice of Appeal, file
with the Secretariat a written submission prepared in accordance with paragraph 2 and
serve a copy of the submission on the other parties to the dispute and third parties.
(2) A written
submission referred to in paragraph 1 shall
(a) be dated
and signed by the appellant; and
(b) set out
(i) a precise
statement of the grounds for the appeal, including the specific allegations of errors in
the issues of law covered in the panel report and legal interpretations developed by the
panel, and the legal arguments in support thereof;
(ii) a
precise statement of the provisions of the covered agreements and other legal sources
relied on; and
(iii) the
nature of the decision or ruling sought.
Appellee's Submission
22.
(1) Any party
to the dispute that wishes to respond to allegations raised in an appellant's submission
filed pursuant to Rule 21 may, within 25 days after the date of the filing of the Notice
of Appeal, file with the Secretariat a written submission prepared in accordance with
paragraph 2 and serve a copy of the submission on the appellant, other parties to the
dispute and third parties.
(2) A written
submission referred to in paragraph 1 shall
(a) be dated
and signed by the appellee; and
(b) set out
(i) a precise
statement of the grounds for opposing the specific allegations of errors in the issues of
law covered in the panel report and legal interpretations developed by the panel raised in
the appellant's submission, and the legal arguments in support thereof;
(ii) an
acceptance of, or opposition to, each ground set out in the appellant's submission;
(iii) a
precise statement of the provisions of the covered agreements and other legal sources
relied on; and
(iv) the
nature of the decision or ruling sought.
Multiple Appeals
23.
(1) Within 15
days after the date of the filing of the Notice of Appeal, a party to the dispute other
than the original appellant may join in that appeal or appeal on the basis of other
alleged errors in the issues of law covered in the panel report and legal interpretations
developed by the panel.
(2) Any
written submission made pursuant to paragraph 1 shall be in the format required by
paragraph 2 of Rule 21.
(3) The
appellant, any appellee and any other party to the dispute that wishes to respond to a
submission filed pursuant to paragraph 1 may file a written submission within 25 days
after the date of the filing of the Notice of Appeal, and any such submission shall be in
the format required by paragraph 2 of Rule 22.
(4) This Rule
does not preclude a party to the dispute which has not filed a submission under Rule 21 or
paragraph 1 of this Rule from exercising its right of appeal pursuant to paragraph 4 of
Article 16 of the DSU.
(5) Where a
party to the dispute which has not filed a submission under Rule 21 or paragraph 1 of this
Rule exercises its right to appeal as set out in paragraph 4, a single division shall
examine the appeals.
Third Participants
24.
Any third
party may file a written submission, stating its intention to participate as a third
participant in the appeal and containing the grounds and legal arguments in support of its
position, within 25 days after the date of the filing of the Notice of Appeal.
Transmittal of Record
25.
(1) Upon the
filing of a Notice of Appeal, the Director-General of the WTO shall transmit forthwith to
the Appellate Body the complete record of the panel proceeding.
(2) The
complete record of the panel proceeding includes, but is not limited to:
(i) written
submissions, rebuttal submissions, and supporting evidence attached thereto by the parties
to the dispute and the third parties;
(ii) written
arguments submitted at the panel meetings with the parties to the dispute and the third
parties, the recordings of such panel meetings, and any written answers to questions posed
at such panel meetings;
(iii) the
correspondence relating to the panel dispute between the panel or the WTO Secretariat and
the parties to the dispute or the third parties; and
(iv) any
other documentation submitted to the panel.
Working Schedule
26.
(1) Forthwith
after the commencement of an appeal, the division shall draw up an appropriate working
schedule for that appeal in accordance with the time periods stipulated in these Rules.
(2) The
working schedule shall set forth precise dates for the filing of documents and a timetable
for the division's work, including where possible, the date for the oral hearing.
(3) In
accordance with paragraph 9 of Article 4 of the DSU, in appeals of urgency, including
those which concern perishable goods, the Appellate Body shall make every effort to
accelerate the appellate proceedings to the greatest extent possible. A division shall
take this into account in drawing up its working schedule for that appeal.
(4) The
Secretariat shall serve forthwith a copy of the working schedule on the appellant, the
parties to the dispute and any third parties.
Oral Hearing
27.
(1) A
division shall hold an oral hearing, which shall be held, as a general rule, 30 days after
the date of the filing of the Notice of Appeal.
(2) Where
possible in the working schedule or otherwise at the earliest possible date, the
Secretariat shall notify all parties to the dispute, participants, third parties and third
participants of the date for the oral hearing.
(3) Any third
participant who has filed a submission pursuant to Rule 24 may appear to make oral
arguments or presentations at the oral hearing.
(4) The
Presiding Member may, as necessary, set time-limits for oral arguments and presentations.
Written Responses
28.
(1) At any
time during the appellate proceeding, including, in particular, during the oral hearing,
the division may address questions orally or in writing to, or request additional
memoranda from, any participant or third participant, and specify the time periods by
which written responses or memoranda shall be received.
(2) Any such
questions, responses or memoranda shall be made available to the other participants and
third participants in the appeal, who shall be given an opportunity to respond.
Failure to Appear
29.
Where a
participant fails to file a submission within the required time periods or fails to appear
at the oral hearing, the division shall, after hearing the views of the participants,
issue such order, including dismissal of the appeal, as it deems appropriate.
Withdrawal of Appeal
30.
(1) At any
time during an appeal, the appellant may withdraw its appeal by notifying the Appellate
Body, which shall forthwith notify the DSB.
(2) Where a
mutually agreed solution to a dispute which is the subject of an appeal has been notified
to the DSB pursuant to paragraph 6 of Article 3 of the DSU, it shall be notified to the
Appellate Body.
Prohibited Subsidies
31.
(1) Subject
to Article 4 of the SCM Agreement, the general provisions of these Rules shall apply to
appeals relating to panel reports concerning prohibited subsidies under Part II of that
Agreement.
(2) The
working schedule for an appeal involving prohibited subsidies under Part II of the SCM
Agreement shall be as set out in Annex I to these Rules.
Entry into Force and Amendment
32.
(1) These
Rules shall enter into force on 15 February 1996.
(2) The
Appellate Body may amend these Rules in compliance with the procedures set forth in
paragraph 9 of Article 17 of the DSU.
(3) Whenever
there is an amendment to the DSU or to the special or additional rules and procedures of
the covered agreements, the Appellate Body shall examine whether amendments to these Rules
are necessary.
Annex I
Timetable for appeals
| |
General
Appeals |
Prohibited
Subsidies Appeals |
| |
Day |
Day |
| Notice of
Appeal(1) |
0 |
0 |
| Appellant's
Submission(2) |
10 |
5 |
| Other
Appellant(s) Submission(s)(3) |
15 |
7 |
| Appellee(s)
Submission(s)(4) |
25 |
12 |
| Third
Participant(s) Submission(s)(5) |
25 |
12 |
| Oral
Hearing(6) |
30 |
15 |
| Circulation
of Appellate Report |
60 - 90(7) |
30 - 60(8) |
| DSB Meeting
for Adoption |
90 - 120(9) |
50 - 80(10) |
(1)Rule 20.
(2)Rule 21.
(3)Rule 23(1)
(4)Rules 22
and 23(3).
(5)Rule 24.
(6)Rule 27.
(7)Article
17:5, DSU.
(8)Article
4:9, SCM Agreement.
(9)Article
17:14, DSU.
(10)Article
4:9, SCM Agreement.
Annex II
Rules of conduct for the understanding on rules and procedures governing the settlement of
disputes
I.
Preamble
Members,
Recalling
that on 15 April 1994 in Marrakesh, Ministers welcomed the stronger and clearer legal
framework they had adopted for the conduct of international trade, including a more
effective and reliable dispute settlement mechanism;
Recognizing
the importance of full adherence to the Understanding on Rules and Procedures Governing
the Settlement of Disputes (DSU) and the principles for the management of disputes applied
under Articles XXII and XXIII of GATT 1947, as further elaborated and modified by the DSU;
Affirming
that the operation of the DSU would be strengthened by rules of conduct designed to
maintain the integrity, impartiality and confidentiality of proceedings conducted under
the DSU thereby enhancing confidence in the new dispute settlement mechanism;
Hereby
establish the following Rules of Conduct.
II.
Governing Principle
1. Each
person covered by these Rules (as defined in Section IV below and hereinafter called
“covered person”) shall be independent and impartial, shall avoid direct or
indirect conflicts of interest and shall respect the confidentiality of proceedings of
bodies pursuant to the dispute settlement mechanism, so that through the observance of
such standards of conduct the integrity and impartiality of that mechanism are preserved.
These Rules shall in no way modify the rights and obligations of Members under the DSU nor
the rules and procedures therein.
III.
Observance of the Governing Principle
1. To ensure
the observance of the Governing Principle of these Rules, each person covered by them is
expected (1) to adhere strictly to the provisions of the DSU; (2) to disclose the
existence or development of any interest, relationship or matter that that person could
reasonably be expected to know and that is likely to affect, or give rise to justifiable
doubts as to, that person's independence or impartiality; and (3) to take due care in the
performance of their duties to fulfil these expectations, including through avoidance of
any direct or indirect conflicts of interest in respect of the subject matter of the
proceedings.
2. Pursuant
to the Governing Principle, each person covered by these Rules, shall be independent and
impartial, and shall maintain confidentiality. Moreover, such persons shall consider only
issues raised in, and necessary to fulfil their responsibilities within, the dispute
settlement proceeding and shall not delegate this responsibility to any other person. Such
person shall not incur any obligation or accept any benefit that would in anyway interfere
with, or which could give rise to, justifiable doubts as to the proper performance of that
person's dispute settlement duties.
IV. Scope
1. These
Rules shall apply, as specified in the text, to each person serving: (a) on a panel; (b)
on the Standing Appellate Body; (c) as an arbitrator pursuant to the provisions mentioned
in Annex “1a”; or (d) as an expert participating in the dispute settlement
mechanism pursuant to the provisions mentioned in Annex “1b”. These Rules shall
also apply, as specified in this text and the relevant provisions of the Staff
Regulations, to members of the Secretariat called upon to assist the panel in accordance
with Article 27.1 of the DSU or to assist in formal arbitration proceedings pursuant to
Annex “1a” and to Standing Appellate Body support staff called upon to provide
the Standing Appellate Body with administrative or legal support in accordance with
Article 17.7 of the DSU (hereinafter “Member of the Secretariat or Standing Appellate
Body support staff”), reflecting their acceptance of established norms regulating the
conduct of such persons as international civil servants and the Governing Principle of
these Rules.
2. The
application of these Rules shall not in any way impede the Secretariat's discharge of its
responsibility to continue to respond to Members' requests for assistance and information.
V.
Self-Disclosure Requirements by Covered Persons
1. (a) Each
person requested to serve on a panel, on the Standing Appellate Body, as an arbitrator, or
as an expert shall, at the time of the request, receive from the Secretariat these Rules,
which include an Illustrative List (Annex 2) of examples of the matters subject to
disclosure. (b) Any member of the Secretariat who may expect to be called upon to assist
in a dispute, and Standing Appellate Body support staff, shall be familiar with these
Rules.
2. As set out
in paragraph V:4 below, all persons covered by paragraph V.1(a) and V.1(b) shall disclose
any information that could reasonably be expected to be known to them at the time which,
coming within the scope of the Governing Principle of these Rules, is likely to affect or
give rise to justifiable doubts as to their independence or impartiality. These
disclosures include the type of information described in the Illustrative List, if
relevant.
3. These
disclosure requirements shall not extend to the identification of matters whose relevance
to the issues to be considered in the proceedings would be insignificant. They shall take
into account the need to respect the personal privacy of those to whom these Rules apply
and shall not be so administratively burdensome as to make it impracticable for otherwise
qualified persons to serve on panels, the Standing Appellate Body, or in other dispute
settlement roles.
4. (a) All
panelists, arbitrators and experts, prior to confirmation of their appointment, shall
complete the form at Annex 3 of these Rules. Such information would be disclosed to the
Chair of the Dispute Settlement Body (DSB) for consideration by the parties to the
dispute. (b) (i) Persons serving on the Standing Appellate Body who, through rotation, are
selected to hear the appeal of a particular panel case, shall review the factual portion
of the Panel report and complete the form at Annex 3. Such information would be disclosed
to the Standing Appellate Body for its consideration whether the member concerned should
hear a particular appeal. (ii) Standing Appellate Body support staff shall disclose any
relevant matter to the Standing Appellate Body, for its consideration in deciding on the
assignment of staff to assist in a particular appeal. (c) When considered to assist in a
dispute, members of the Secretariat shall disclose to the Director-General of the WTO the
information required under paragraph V:2 of these Rules and any other relevant information
required under the Staff Regulations, including the information described in the
footnote(1).
5. During a
dispute, each covered person shall also disclose any new information relevant to paragraph
V:2 above at the earliest time they become aware of it.
6. The Chair
of the DSB, the Secretariat, parties to the dispute, and other individuals involved in the
dispute settlement mechanism shall maintain the confidentiality of any information
revealed through this disclosure process, even after the panel process and its enforcement
procedures, if any, are completed.
VI.
Confidentiality
1. 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. No covered person shall at any time use such information acquired during
such deliberations and proceedings to gain personal advantage or advantage for others.
2. During the
proceedings, no covered person shall engage in ex parte contacts concerning matters under
consideration. Subject to paragraph VI:1, no covered person shall make any statements on
such proceedings or the issues in dispute in which that person is participating, until the
report of the panel or the Standing Appellate Body has been derestricted.
VII.
Procedures Concerning Subsequent Disclosure and Possible Material Violations
1. Any party
to a dispute, conducted pursuant to the WTO Agreement, who possesses or comes into
possession of evidence of a material violation of the obligations of independence,
impartiality or confidentiality or the avoidance of direct or indirect conflicts of
interest by covered persons which may impair the integrity, impartiality or
confidentiality of the dispute settlement mechanism, shall at the earliest possible time
and on a confidential basis, submit such evidence to the Chair of the DSB, the
Director-General or the Standing Appellate Body, as appropriate according to the
respective procedures detailed in paragraphs VII:5 to VII:17 below, in a written statement
specifying the relevant facts and circumstances. Other Members who possess or come into
possession of such evidence, may provide such evidence to the parties to the dispute in
the interest of maintaining the integrity and impartiality of the dispute settlement
mechanism.
2. When
evidence as described in paragraph VII:1 is based on an alleged failure of a covered
person to disclose a relevant interest, relationship or matter, that failure to disclose,
as such, shall not be a sufficient ground for disqualification unless there is also
evidence of a material violation of the obligations of independence, impartiality,
confidentiality or the avoidance of direct or indirect conflicts of interests and that the
integrity, impartiality or confidentiality of the dispute settlement mechanism would be
impaired thereby.
3. When such
evidence is not provided at the earliest practicable time, the party submitting the
evidence shall explain why it did not do so earlier and this explanation shall be taken
into account in the procedures initiated in paragraph VII:1.
4. Following
the submission of such evidence to the Chair of the DSB, the Director-General of the WTO
or the Standing Appellate Body, as specified below, the procedures outlined in paragraphs
VII:5 to VII:17 below shall be completed within fifteen working days.
Panelists, Arbitrators, Experts
5. If the
person who is the subject of the evidence is a panelist, an arbitrator or an expert, the
party shall provide such evidence to the Chair of the DSB.
6. Upon
receipt of the evidence referred to in paragraphs VII:1 and VII:2, the Chair of the DSB
shall forthwith provide the evidence to the person who is the subject of such evidence,
for consideration by the latter.
7. If, after
having consulted with the person concerned, the matter is not resolved, the Chair of the
DSB shall forthwith provide all the evidence, and any additional information from the
person concerned, to the parties to the dispute. If the person concerned resigns, the
Chair of the DSB shall inform the parties to the dispute and, as the case may be, the
panelists, the arbitrator(s) or experts.
8. In all
cases, the Chair of the DSB, in consultation with the Director-General and a sufficient
number of Chairs of the relevant Council or Councils to provide an odd number, and after
having provided a reasonable opportunity for the views of the person concerned and the
parties to the dispute to be heard, would decide whether a material violation of these
Rules as referred to in paragraphs VII:1 and VII:2 above has occurred. Where the parties
agree that a material violation of these Rules has occurred, it would be expected that,
consistent with maintaining the integrity of the dispute settlement mechanism, the
disqualification of the person concerned would be confirmed.
9. The person
who is the subject of the evidence shall continue to participate in the consideration of
the dispute unless it is decided that a material violation of these Rules has occurred.
10. The Chair
of the DSB shall thereafter take the necessary steps for the appointment of the person who
is the subject of the evidence to be formally revoked, or excused from the dispute as the
case may be, as of that time.
Secretariat
11. If the
person who is the subject of the evidence is a member of the Secretariat, the party shall
only provide the evidence to the Director-General of the WTO, who shall forthwith provide
the evidence to the person who is the subject of such evidence and shall further inform
the other party or parties to the dispute and the panel.
12. It shall
be for the Director-General to take any appropriate action in accordance with the Staff
Regulations.(2)
13. The
Director-General shall inform the parties to the dispute, the panel and the Chair of the
DSB of his decision, together with relevant supporting information.
Standing Appellate Body
14. If the
person who is the subject of the evidence is a member of the Standing Appellate Body or of
the Standing Appellate Body support staff, the party shall provide the evidence to the
other party to the dispute and the evidence shall thereafter be provided to the Standing
Appellate Body.
15. Upon
receipt of the evidence referred to in paragraphs VII:1 and VII:2 above, the Standing
Appellate Body shall forthwith provide it to the person who is the subject of such
evidence, for consideration by the latter.
16. It shall
be for the Standing Appellate Body to take any appropriate action after having provided a
reasonable opportunity for the views of the concerned person and the parties to the
dispute to be heard.
17. The
Standing Appellate Body shall inform the parties to the dispute and the Chair of the DSB
of its decision, together with relevant supporting information.
18. Following
completion of the procedures in paragraphs VII:5 to VII:17, if the appointment of a person
covered by these Rules, other than a member of the Standing Appellate Body, is revoked or
that person is excused or resigns, the procedures specified in the DSU for initial
appointment shall be followed for appointment of a replacement, but the time periods shall
be half those specified in the DSU(3). The member of the Standing Appellate Body who,
under that Body's rules, would next be selected through rotation to consider the dispute,
would automatically be assigned to the appeal. The panel, members of the Standing
Appellate Body hearing the appeal, or the arbitrator, as the case may be, may then decide
after consulting with the parties to the dispute, on any necessary modifications to their
working procedures or proposed timetable.
19. All
persons and Members concerned shall resolve matters involving possible material violations
of these Rules as expeditiously as possible so as not to delay the completion of
proceedings, as provided in the DSU.
20. Except to
the extent strictly necessary to carry out this decision, all information concerning
possible or actual material violations of these Rules shall be kept confidential.
VIII.
Review
1. These
Rules of Conduct shall be reviewed within two years of their adoption and a decision shall
be taken by the Dispute Settlement Body as to whether to continue, modify or terminate
these Rules.
Annex 1a
Arbitrators
acting pursuant to the following provisions:
- Articles
21.3(c); 22.6 and 22.7; 26.1(c) and 25 of the DSU;
- Article 8.5
of the SCM Agreement;
- Articles
XXI.3 and XXII.3 of the GATS.
Annex 1b
Experts
advising or providing information pursuant to the following provisions:
- Article
13.1; 13.2 of the DSU;
- Article 4.5
of the SCM Agreement;
- Article
11.2 of the SPS Agreement;
- Article
14.2; 14.3 of the TBT Agreement.
Annex 2
Illustrative list of information to be disclosed
This list
contains examples of information of the type that a person called upon to serve in a
dispute should disclose pursuant to the Rules of Conduct for the Understanding on Rules
and Procedures Governing the Settlement of Disputes.
Each person
covered by these Rules of Conduct has a continuing duty to disclose the information
described in Section V:2 of the Rules of Conduct which may include the following:
(a) financial
interests (e.g. investments, loans, shares, interests, other debts); business interests
(e.g. directorship or other contractual interests); and property interests relevant to the
dispute in question;
(b)
professional interests (e.g. a past or present relationship with private clients, or any
interests the person may have in domestic or international proceedings, and their
implications, where these involve issues similar to those addressed in the dispute in
question);
(c) other
active interests (e.g. active participation in public interest groups or other
organisations which may have a declared agenda relevant to the dispute in question);
(d)
considered statements of personal opinion on issues relevant to the dispute in question
(e.g. publications, public statements);
(e)
employment or family interests (e.g. the possibility of any indirect advantage or any
likelihood of pressure which could arise from their employer, business associates or
immediate family members).
Annex 3
Dispute
Number: ________
WORLD TRADE
ORGANISATION
DISCLOSURE
FORM
I have read
the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and
the Rules of Conduct for the DSU. I understand my continuing duty, while participating in
the dispute settlement mechanism, and until such time as the Dispute Settlement Body (DSB)
makes a decision on adoption of a report relating to the proceeding or notes its
settlement, to disclose herewith and in future any information likely to affect my
independence or impartiality, or which could give rise to justifiable doubts as to the
integrity and impartiality of the dispute settlement mechanism; and to respect my
obligations regarding the confidentiality of dispute settlement proceedings.
Signed:
Dated:
____________________________
(1)Pending
adoption of the Staff Regulations, members of the Secretariat shall make disclosures to
the Director-General in accordance with the following draft provision to be included in
the Staff Regulations:
“When
paragraph V:4(c) of the Rules of Conduct for the DSU is applicable, members of the
Secretariat would disclose to the Director-General of the WTO the information required in
paragraph V:2 of those Rules, as well as any information regarding their participation in
earlier formal consideration of the specific measure at issue in a dispute under any
provisions of the WTO Agreement, including through formal legal advice under Article 27.2
of the DSU, as well as any involvement with the dispute as an official of a WTO Member
government or otherwise professionally, before having joined the Secretariat.
The
Director-General shall consider any such disclosures in deciding on the assignment of
members of the Secretariat to assist in a dispute.
When the
Director-General, in the light of his consideration, including of available Secretariat
resources, decides that a potential conflict of interest is not sufficiently material to
warrant non-assignment of a particular member of the Secretariat to assist in a dispute,
the Director-General shall inform the panel of his decision and of the relevant supporting
information.”
(2)Pending
adoption of the Staff Regulations, the Director-General would act in accordance with the
following draft provision for the Staff Regulations: “If paragraph VII:11 of the
Rules of Conduct for the DSU governing the settlement of disputes is invoked, the
Director-General shall consult with the person who is the subject of the evidence and the
panel and shall, if necessary, take appropriate disciplinary action”.
(3)Appropriate
adjustments would be made in the case of appointments pursuant to the SCM Agreement. |
