The texts reproduced here do not have the legal standing of the original documents which are entrusted and kept at the WTO Secretariat in Geneva.

> Article 1
> Article 2
> Article 3
> Article 4
> Article 5
> Article 6
> Article 7
> Article 8
> Article 9
> Article 10
> Article 11
> Article 12
> Article 13
> Article 14
> Article 15
> Article 16
> Article 17
> Article 18
> Article 19
> Article 20
> Article 21
> Article 22
> Article 23
> Article 24
> Article 25
> Article 26
> Article 27
> Appendix 1: Agreements Covered by the DSU
> Appendix 2: Special or Additional Dispute Settlement Rules and Procedures
> Appendix 3: Panel Working Procedures
> Appendix 4: Expert Review Groups
> Working Procedures for Appellate Review
> Working Procedures for Article 22.6 Arbitrations
> Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes
> Rules of Procedure for Meetings of the Dispute Settlement Body
> Other Issues in WTO Dispute Proceedings
> Time-Frames in Relation to Panel and Appellate Body Reports 

> Analytical Index main page

XVII. Article 17    back to top

A. Text of Article 17

Article 17: Appellate Review Standing Appellate Body

1.     A standing Appellate Body shall be established by the DSB. The Appellate Body shall hear appeals from panel cases. It shall be composed of seven persons, three of whom shall serve on any one case. Persons serving on the Appellate Body shall serve in rotation. Such rotation shall be determined in the working procedures of the Appellate Body.

2.     The DSB shall appoint persons to serve on the Appellate Body for a four-year term, and each person may be reappointed once. However, the terms of three of the seven persons appointed immediately after the entry into force of the WTO Agreement shall expire at the end of two years, to be determined by lot. Vacancies shall be filled as they arise. A person appointed to replace a person whose term of office has not expired shall hold office for the remainder of the predecessor’s term.

3.     The Appellate Body shall comprise persons of recognized authority, with demonstrated expertise in law, international trade and the subject matter of the covered agreements generally. They shall be unaffiliated with any government. The Appellate Body membership shall be broadly representative of membership in the WTO. All persons serving on the Appellate Body shall be available at all times and on short notice, and shall stay abreast of dispute settlement activities and other relevant activities of the WTO. They shall not participate in the consideration of any disputes that would create a direct or indirect conflict of interest.

4.     Only parties to the dispute, not third parties, may appeal a panel report. Third parties which have notified the DSB of a substantial interest in the matter pursuant to paragraph 2 of Article 10 may make written submissions to, and be given an opportunity to be heard by, the Appellate Body.

5.     As a general rule, the proceedings shall not exceed 60 days from the date a party to the dispute formally notifies its decision to appeal to the date the Appellate Body circulates its report. In fixing its timetable the Appellate Body shall take into account the provisions of paragraph 9 of Article 4, if relevant. When the Appellate Body considers that it cannot provide its report within 60 days, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. In no case shall the proceedings exceed 90 days.

6.     An appeal shall be limited to issues of law covered in the panel report and legal interpretations developed by the panel.

7.     The Appellate Body shall be provided with appropriate administrative and legal support as it requires.

8.     The expenses of persons serving on the Appellate Body, including travel and subsistence allowance, shall be met from the WTO budget in accordance with criteria to be adopted by the General Council, based on recommendations of the Committee on Budget, Finance and Administration.

Procedures for Appellate Review

9.     Working procedures shall be drawn up by the Appellate Body in consultation with the Chairman of the DSB and the Director-General, and communicated to the Members for their information.

10.     The proceedings of the Appellate Body shall be confidential. The reports of the Appellate Body shall be drafted without the presence of the parties to the dispute and in the light of the information provided and the statements made.

11.     Opinions expressed in the Appellate Body report by individuals serving on the Appellate Body shall be anonymous.

12.     The Appellate Body shall address each of the issues raised in accordance with paragraph 6 during the appellate proceeding.

13.     The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel.

Adoption of Appellate Body Reports

14.     An Appellate Body report shall be adopted by the DSB and unconditionally accepted by the parties to the dispute unless the DSB decides by consensus not to adopt the Appellate Body report within 30 days following its circulation to the Members.(8) This adoption procedure is without prejudice to the right of Members to express their views on an Appellate Body report.

(footnote original) 8 If a meeting of the DSB is not scheduled during this period, such a meeting of the DSB shall be held for this purpose.

B. Interpretation and Application of Article 17

1. General

438.     In Canada — Periodicals, the Appellate Body stressed that “a Panel finding that has not been specifically appealed in a particular case should not be considered to have been endorsed by the Appellate Body. Such a finding may be examined by the Appellate Body when the issue is raised properly in a subsequent appeal.”(653)

2. Article 17.1

(a) Establishment of the Appellate Body

439.     At its meeting of 10 February 1995, the DSB established the Appellate Body in accordance with Article 17.1 of the DSU.(654)

3. Article 17.2

(a) Appointment of Members of the Appellate Body

440.     On 6 December 1994, the Preparatory Committee to the WTO approved its recommendations for the procedures for the appointment of Appellate Body members.(655) As of 31 December 2004, the members of the Appellate Body are Mr Georges M. Abi-Saab, Ms Merit E. Janow, Mr Luiz Olavo Baptista, Mr A. V. Ganesan, Mr John Lockart, Mr Giorgio Sacerdoti and Mr Yasuhei Taniguchi.

4. Article 17.5

(a) “In no case shall the proceedings exceed 90 days”

441.     The following table shows the duration of the appeal review proceedings for those Reports circulated not later than 31 December 2004:

(b) Extension of deadline for circulation of Appellate Body Report

442.     In EC — Hormones, the Appellate Body informed the DSB that it was not going to be able to circulate its Report on time, due to the exceptional nature of this case, the time needed for translation and the intervention of the Christmas holiday period. The Appellate Body announced that it expected to circulate its Report to WTO Members by Friday, 16 January 1998. (657) The appeal process thus lasted 114 days.

443.     In US — Lead and Bismuth II, a Member of the Division hearing the appeal, Mr Christopher Beeby, passed away. Accordingly, the parties in the appeal (European Communities and the United States) agreed to a two-week extension of the 90-day time-limit for the consideration of the appeal and thus agreed that the Report would be circulated no later than 10 May 2000.(658) The appeal process thus lasted 104 days.

444.     In EC — Asbestos, the Appellate Body informed the DSB that, due to the exceptional workload of the Appellate Body, and in the light of the agreement of the participants, Canada and the European Communities, the Appellate Body Report in this appeal would be circulated to WTO Members no later than Monday, 12 March 2001.(659) The appeal process thus lasted 140 days.

445.     In Thailand — H-Beams, on 20 December 2001, the Appellate Body informed the DSB that, due to the exceptional workload of the Appellate Body, and in the light of the agreement of the participants in this appeal, the Appellate Body Report in the appeal would be circulated to Members of the WTO no later than 12 March 2001.(660) The appeal process thus lasted 140 days.

5. Article 17.6: scope of appellate review

(a) “issues of law … and legal interpretations”

(i) Factual findings versus legal findings

446.     In Canada — Periodicals, the Appellate Body made reference to the limits of its mandate under Articles 17.6 and 17.13 as follows:

“We are mindful of the limitation of our mandate in Articles 17.6 and 17.13 of the DSU. According to Article 17.6, an appeal shall be limited to issues of law covered in the Panel Report and legal interpretations developed by the Panel. The determination of whether imported and domestic products are ‘like products’ is a process by which legal rules have to be applied to facts. In any analysis of Article III:2, first sentence, this process is particularly delicate, since ‘likeness’ must be construed narrowly and on a case-by-case basis.”(661)

447.     In EC — Bananas III, the Appellate Body identified several findings of the Panel as being factual findings and thus outside its scope of review:

“On the first issue, the Panel found that the procedural and administrative requirements of the activity function rules for importing third-country and non-traditional ACP bananas differ from, and go significantly beyond, those required for importing traditional ACP bananas. This is a factual finding….

…

It is, however, evident from the terms of its finding that the Panel concluded, as a matter of fact, that the de facto discrimination did continue to exist after the entry into force of the GATS. This factual finding is beyond review by the Appellate Body. Thus, we do not reverse or modify the Panel’s conclusion in paragraph 7.308 of the Panel Reports.

…

In our view, the conclusions by the Panel on whether Del Monte is a Mexican company, the ownership and control of companies established in the European Communities that provide wholesale trade services in bananas, the market shares of suppliers of Complaining Parties’ origin as compared with suppliers of EC (or ACP) origin, and the nationality of the majority of operators that ‘include or directly represent’ EC (or ACP) producers, are all factual conclusions. Therefore, we decline to rule on these arguments made by the European Communities.”(662)

448.     In EC — Hormones, the Appellate Body made a distinction between factual(663) and legal findings and stressed that factual findings “are, in principle, not subject to [its] review”:

“Under Article 17.6 of the DSU, appellate review is limited to appeals on questions of law covered in a panel report and legal interpretations developed by the panel. Findings of fact, as distinguished from legal interpretations or legal conclusions, by a panel are, in principle, not subject to review by the Appellate Body. The determination of whether or not a certain event did occur in time and space is typically a question of fact; for example, the question of whether or not Codex has adopted an international standard, guideline or recommendation on [one of the growth hormones at issue] is a factual question…. The consistency or inconsistency of a given fact or set of facts with the requirements of a given treaty provision is, however, a legal characterization issue. It is a legal question.”(664)

449.     In Australia — Salmon, the Appellate Body confirmed that “[t]he Panel’s consideration and weighing of the evidence in support of [the] claims relates to its assessment of the facts and, therefore, falls outside the scope of appellate review under Article 17.6 of the DSU”.(665)

450.     The Appellate Body on Korea — Alcoholic Beverages further indicated that the panel’s examination and weighing of the evidence submitted fall within the scope of its discretion as the trier of facts (in this regard, see Section XI.B.3(a)(ii) above):

“The Panel’s examination and weighing of the evidence submitted fall, in principle, within the scope of the Panel’s discretion as the trier of facts and, accordingly, outside the scope of appellate review. This is true, for instance, with respect to the Panel’s treatment of the Dodwell Study, the Sofres Report and the Nielsen Study. We cannot second-guess the Panel in appreciating either the evidentiary value of such studies or the consequences, if any, of alleged defects in those studies. Similarly, it is not for us to review the relative weight ascribed to evidence on such matters as marketing studies, methods of production, taste, colour, places of consumption, consumption with ‘meals’ or with ‘snacks’, and prices.”(666)

451.     In US — Wheat Gluten, the Appellate Body again referred to the Panel as the trier of the facts (see Section XI.B.3(a)(ii) above) in respect of its discretion to consider the evidence in a given case and summarized its prior jurisprudence on the scope of review that the Appellate Body can undertake of the Panel’s findings pursuant to Article 17.6 of the DSU:

“[W]e recall that, in previous appeals, we have emphasized that the role of the Appellate Body differs from the role of panels. Under Article 17.6 of the DSU, appeals are ‘limited to issues of law covered in the panel report and legal interpretations developed by the panel’. (emphasis added) By contrast, we have previously stated that, under Article 11 of the DSU, panels are:

… charged with the mandate to determine the facts of the case and to arrive at factual findings. In carrying out this mandate, a panel has the duty to examine and consider all the evidence before it, not just the evidence submitted by one or the other party, and to evaluate the relevance and probative force of each piece thereof.(667) (emphasis added)

We have also stated previously that, although the task of panels under Article 11 relates, in part, to its assessment of the facts, the question whether a panel has made an ‘objective assessment’ of the facts is a legal one, that may be the subject of an appeal.(668) (emphasis added) However, in view of the distinction between the respective roles of the Appellate Body and panels, we have taken care to emphasize that a panel’s appreciation of the evidence falls, in principle, ‘within the scope of the panel’s discretion as the trier of facts’.(669) (emphasis added) … a panel’s appreciation of the evidence falls, in principle, ‘within the scope of the panel’s discretion as the trier of facts’.(670) (emphasis added) …”(671)

452.     In US — Section 211 Appropriations Act, the Appellate Body considered that the examination by the Panel of the municipal law(672) of a WTO Member for the purpose of determining whether that Member has complied with its obligations under the WTO Agreement is a legal characterization by a panel and thus subject to review by the Appellate Body:

“… the municipal law of WTO Members may serve not only as evidence of facts, but also as evidence of compliance or non-compliance with international obligations. Under the DSU, a panel may examine the municipal law of a WTO Member for the purpose of determining whether that Member has complied with its obligations under the WTO Agreement. Such an assessment is a legal characterization by a panel. And, therefore, a panel’s assessment of municipal law as to its consistency with WTO obligations is subject to appellate review under Article 17.6 of the DSU.”(673)

453.     In US — Softwood Lumber V, the United States submitted that one of the issues raised by Canada on appeal — whether the United States’ investigating authorities exercised its discretion in calculating wood chip offset revenue for Tembec in an “objective” and “even-handed” manner — was a factual issue and, accordingly, beyond the scope of appellate review. The Appellate Body first noted that the United States did not dispute the general proposition that an investigating authority must make its determinations in an objective and even-handed manner, as the Panel had found that the USDOC did in this case, but did not find such an obligation in Article 2.2.1.1 of the Anti-Dumping Agreement. The Appellate Body disagreed with the United States since, in its view, the issue raised by Canada was a question of law. For the Appellate Body, “[t]he fact that such an ‘obligation [is] not found in Article 2.2.1.1’ is not dispositive. Whether a particular approach of an investigating authority is, or is not, even-handed is, ultimately, a matter of the ‘legal characterization’(674) of facts and, as such, a matter of law.”(675)

(ii) Relevance of the characterization of a finding by the Panel

454.     In Chile — Price Band System, the Appellate Body noted that the Panel’s characterization of a finding “as a factual matter” does not mean that the issue is shielded from appellate review:

“[T]he Panel’s characterization of its finding ‘as a factual matter’ does not mean that the issue whether Chile’s price band system is a border measure similar to a variable import levy or a minimum import price is shielded from appellate review. This is a question of law, and not of fact, and thus is clearly within our jurisdiction under Article 17.6 of the DSU.(676) As we said in our Report in EC — Hormones, the assessment of the consistency or inconsistency of a given fact or set of facts with the requirements of a given treaty provision is an issue of legal characterization. The mere assertion by a panel that its conclusion is a ‘factual matter’ does not make it so…. All the same, in reviewing the Panel’s assessment of Chile’s price band system, we are mindful of the need to give due deference to the discretion of the Panel, as the ‘trier of fact’, to weigh the evidence before it.”(677)

(iii) Statements of panels not amounting to “legal findings”

455.     In US — Wool Shirts and Blouses, the Appellate Body declined to address a particular statement by the Panel appealed by India. The Appellate Body held that the statement was not a legal finding, but rather a “descriptive and gratuitous comment”:

“India appealed the following statement relating to Article 6.10 of the ATC at paragraph 7.20 of the Panel Report:

‘During the review process, the TMB is not limited to the initial information submitted by the importing Member as parties may submit additional and other information in support of their positions, which, we understand, may relate to subsequent events.’(emphasis added)

In our view, this statement by the Panel is purely a descriptive and gratuitous comment providing background concerning the Panel’s understanding of how the TMB functions. We do not consider this comment by the Panel to be ‘a legal finding or conclusion’ which the Appellate Body ‘may uphold, modify or reverse’.(678)”(679)

456.     In EC — Poultry, the Appellate Body addressed the issue of the allocation of a tariff-rate quota share to a non-Member and the participation of non-Members in the “others” category of a tariff-rate quota. In this context the Appellate Body stated that it was mindful of the mandate under Article 17.6 of the DSU and held that, contrary to Brazil’s claim, the Panel had not made any legal findings on this issue:

“It is true that in footnote 140 of the Panel Report, the Panel states that paragraph 7.75 of the EC — Bananas panel reports and ‘particularly the use of the phrase “all suppliers other than Members with a substantial interest in supplying the product” … indicates that the Banana III panel did not take the view that allocation of quota shares to non-Members under Article XIII:2(d) was not permitted’. We do not consider this comment made in a footnote by the Panel to be either a ‘legal interpretation developed by the panel’ within the meaning of Article 17.6 of the DSU or a ‘legal finding’ or ‘conclusion’ that the Appellate Body may ‘uphold, modify or reverse’ under Article 17.13 of the DSU. It is undisputed in this case that there is no allocation of a country-specific share in the tariff-rate quota to a non-Member. There is, therefore, no finding nor any ‘legal interpretation developed by the panel’ that may be the subject of an appeal of which the Appellate Body may take cognizance.”(680)

(iv) Review of new issues

457.     In EC — Tube or Pipe Fittings, the Appellate Body rejected the European Communities’ argument that a particular issue was not properly before the Appellate Body, stating that the issue was identified during the Panel proceedings.(681)

(v) Review of new arguments

458.     In Canada — Aircraft, Brazil had raised an argument during the appellate review which it had not raised during the Panel review. The Appellate Body, although it found that this new argument was beyond the scope of appellate review, stated that “new arguments are not per se excluded from the scope of appellate review, simply because they are new”:

“In our view, this new argument raised by Brazil is beyond the scope of appellate review. Article 17.6 of the DSU provides that ‘[a]n appeal shall be limited to issues of law covered in the panel report and legal interpretations developed by the panel’. In principle, new arguments are not per se excluded from the scope of appellate review, simply because they are new. However, for us to rule on Brazil’s new argument, we would have to solicit, receive and review new facts that were not before the Panel, and were not considered by it. In our view, Article 17.6 of the DSU manifestly precludes us from engaging in any such enterprise.”(682)

459.     The Appellate Body on US — FSC declined to address a “new” argument regarding double taxation under the last sentence of footnote 59 of the SCM Agreement because it considered that this new argument did not involve either an “issue of law covered in the panel report” or “legal interpretations developed by the panel”:

“The argument which the United States asks us to address under the fifth sentence of footnote 59 involves two separate legal issues: first, that the FSC measure is a measure ‘to avoid double taxation of foreign-source income’ within the meaning of footnote 59; and second, that, in consequence, the FSC measure is excluded from the prohibition in Article 3.1(a) of the SCM Agreement against export subsidies. In our view, examination of the substantive issues raised by this particular argument would be outside the scope of our mandate under Article 17.6 of the DSU, as this argument does not involve either an ‘issue of law covered in the panel report’ or ‘legal interpretations developed by the panel’. The Panel was simply not asked to address the issues raised by the United States’ new argument. Further, the new argument now made before us would require us to address legal issues quite different from those which confronted the Panel and which may well require proof of new facts…. We, therefore, decline to examine the United States’ argument that the FSC measure is a measure ‘to avoid double taxation’ within the meaning of footnote 59, and we reserve our opinion on this issue.”(683)

(vi) Review of new facts

460.     In US — Offset Act (Byrd Amendment), the Appellate Body stated that it had no authority to consider new facts on appeal:

“Article 17.6 is clear in limiting our jurisdiction to issues of law covered in panel reports and legal interpretations developed by panels. We have no authority to consider new facts on appeal. The fact that the documents are ‘available on the public record’ does not excuse us from the limitations imposed by Article 17.6. We note that the other participants have not had an opportunity to comment on those documents and, in order to do so, may feel required to adduce yet more evidence. We would also be precluded from considering such evidence.”(684)

(b) “Completing the analysis”

461.     In US — Gasoline, the Appellate Body, further to reversing the Panel’s conclusions on the first part of Article XX(g) of GATT 1994 and having completed the Article XX(g) analysis in that case, examined the measure’s consistency with the provisions of the chapeau of Article XX, based on the legal findings contained in the Panel Report.

462.     In Canada — Periodicals, the Appellate Body reversed the Panel’s findings on the issue of “like products” under Article III:2 of GATT 1994. The Appellate Body then addressed the question whether it could “complete the Panel’s analysis”, specifically whether it could proceed to make a determination whether the goods at issue were “directly competitive or substitutable” within the meaning of Article III:2, second sentence, of GATT 1994. The Appellate Body held that it could do so, noting that Article III:2, first sentence and Article III:2, second sentence were part of a “logical continuum”:(685)

“We are mindful of the limitation of our mandate in Articles 17.6 and 17.13 of the DSU. According to Article 17.6, an appeal shall be limited to issues of law covered in the Panel Report and legal interpretations developed by the Panel. The determination of whether imported and domestic products are ‘like products’ is a process by which legal rules have to be applied to facts. In any analysis of Article III:2, first sentence, this process is particularly delicate, since ‘likeness’ must be construed narrowly and on a case-by-case basis. We note that, due to the absence of adequate analysis in the Panel Report in this respect, it is not possible to proceed to a determination of like products.

…

We believe the Appellate Body can, and should, complete the analysis of Article III:2 of the GATT 1994 in this case by examining the measure with reference to its consistency with the second sentence of Article III:2, provided that there is a sufficient basis in the Panel Report to allow us to do so. The first and second sentences of Article III:2 are closely related. The link between the two sentences is apparent from the wording of the second sentence, which begins with the word ‘moreover’. It is also emphasized in AD Article III, paragraph 2, which provides: ‘A tax conforming to the requirements of the first sentence of paragraph 2 would be considered to be inconsistent with the provisions of the second sentence only in cases where …’. An examination of the consistency of Part V.1 of the Excise Tax Act with Article III:2, second sentence, is therefore part of a logical continuum.

The Appellate Body found itself in a similar situation in United States — Gasoline. Having reversed the Panel’s conclusions on the first part of Article XX(g) and having completed the Article XX(g) analysis in that case, the Appellate Body then examined the measure’s consistency with the provisions of the chapeau of Article XX, based on the legal findings contained in the Panel Report.(686)

As the legal obligations in the first and second sentences are two closely-linked steps in determining the consistency of an internal tax measure with the national treatment obligations of Article III:2, the Appellate Body would be remiss in not completing the analysis of Article III:2. In the case at hand, the Panel made legal findings and conclusions concerning the first sentence of Article III:2, and because we reverse one of those findings, we need to develop our analysis based on the Panel Report in order to issue legal conclusions with respect to Article III:2, second sentence, of the GATT 1994.”(687)

463.     In EC — Hormones, the Appellate Body, having reversed the Panel’s findings under Article 5.5 of the SPS Agreement, refused to complete the analysis by examining the measure under Article 5.6. According to the Appellate Body; it “cannot be assumed that all the findings of fact necessary to proceed to a determination of consistency or inconsistency of the EC measures with the requirements of Article 5.6 have been made by the Panel”.(688)

464.     In EC — Poultry, the Appellate Body, referring to its previous rulings on US — Gasoline and Canada — Periodicals, held that, having reversed the Panel’s finding on Article 5.1(b) of the Agreement on Agriculture, it should complete its analysis of the c.i.f. import price by making a finding with respect to the consistency of the EC regulation with Article 5.5, which was not addressed by the Panel for reasons of judicial economy:

“We are aware of the provisions of Article 17 of the DSU that state our jurisdiction and our mandate. Article 17.6 of the DSU provides: ‘An appeal shall be limited to issues of law covered in the panel report and legal interpretations developed by the panel’. Article 17.13 of the DSU states: ‘The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel.’ In certain appeals, however, the reversal of a panel’s finding on a legal issue may require us to make a finding on a legal issue which was not addressed by the panel. This occurred, for example, in the appeals in United States — Standards for Reformulated and Conventional Gasoline(689) and in Canada — Certain Measures Concerning Periodicals.(690) And, in this appeal, as we have reversed the Panel’s finding on Article 5.1(b), we believe we should complete our analysis of the c.i.f. import price by making a finding with respect to the consistency of the EC regulation with Article 5.5, which was not addressed by the Panel for reasons of judicial economy.”(691)

465.     In Australia — Salmon, the Appellate Body noted that “[b]ecause the Panel finds that the difference in the level of protection in respect of the three natural hormones, when used for growth promotion purposes, and the level of protection in respect of natural hormones present endogenously in meat and other foods is unjustifiable, the Panel regards it as unnecessary to decide whether the difference in the levels of protection set by the European Communities in respect of natural hormones used as growth promoters and in respect of the same hormones when used for therapeutic or zootechnical purposes, is justified”. The Appellate Body then decided to complete the Panel’s analysis:

“In certain appeals, when we reverse a panel’s finding on a legal issue, we may examine and decide an issue that was not specifically addressed by the panel, in order to complete the legal analysis and resolve the dispute between the parties. This occurred, for example, in the appeals in United States — Gasoline, Canada — Certain Measures Concerning Periodicals, European Communities — Measures Affecting the Importation of Certain Poultry Products (‘European Communities — Poultry’), and United States — Import Prohibition of Certain Shrimp and Shrimp Products.

As we have reversed the Panel’s finding that the SPS measure at issue, erroneously identified as the heat-treatment requirement, is not based on a risk assessment, we believe that — to the extent possible on the basis of the factual findings of the Panel and/or of undisputed facts in the Panel record — we should complete the legal analysis and determine whether the actual SPS measure at issue, i.e., Australia’s import prohibition on fresh, chilled or frozen ocean-caught Pacific salmon, is based on a risk assessment.”(692)

466.     In Argentina — Footwear (EC), the Appellate Body upheld the conclusions of the Panel that Argentina’s investigation in that case was inconsistent with the requirements of Articles 2 and 4 of the Agreement on Safeguards. The Appellate Body then stated that, as there was no legal basis for the safeguard measure at issue, it was not necessary to complete the analysis:

“As a consequence, there is no legal basis for the safeguard measures imposed by Argentina. For this reason, we do not believe that it is necessary to complete the analysis of the Panel relating to the claim made by the European Communities under Article XIX of the GATT 1994 by ruling on whether the Argentine authorities have, in their investigation, demonstrated that the increased imports in this case occurred ‘as a result of unforeseen developments’.”(693)

467.     In Korea — Dairy, the Appellate Body considered the European Communities’ request that the Appellate Body complete the Panel’s reasoning and find that by imposing a safeguard measure in circumstances where the alleged increase in imports was not “as a result of unforeseen developments” within the meaning of Article XIX:1(a) of GATT 1994, Korea also violated its obligations under Article XIX of the GATT 1994. The Appellate Body declined to do so, noting there were insufficient factual findings:

“In the absence of any factual findings by the Panel or undisputed facts in the Panel record relating to whether the alleged increase in imports was, indeed, ‘a result of unforeseen developments and of the effect of the obligations incurred by a Member under this Agreement, including tariff concessions …’, we are not in a position, within the scope of our mandate set forth in Article 17 of the DSU, to complete the analysis and make a determination as to whether Korea acted inconsistently with its obligations under Article XIX:1(a). Accordingly, we are unable to come to a conclusion on whether or not Korea violated its obligations under Article XIX:1(a) of the GATT 1994.”(694)

468.     The Appellate Body on Korea — Dairy also noted that in determining whether Korea violated the second sentence of Article 5.1 of the Agreement on Safeguards, it would have to determine whether the quantitative restrictions imposed by Korea were below the average level of imports in the last three representative years for which statistics were available, and if so, whether Korea had given a reasoned explanation as required by the second sentence of Article 5.1. Similarly, with regard to its conclusions referenced in paragraph 467 above, the Appellate Body held that it did not have a sufficient factual basis on which to complete the analysis:

“The Panel did not make any factual findings on the average level of imports of skimmed milk powder preparations in the last three representative years. The average level of imports in that period was also contested by the parties. Accordingly, we are not in a position, within the scope of our mandate under Article 17 of the DSU, to complete the analysis in this case and make a determination as to the consistency of Korea’s safeguard measure with the second sentence of Article 5.1.”(695)

469.     Similarly, the Appellate Body in Canada — Autos could not complete the Panel’s analysis in the absence of sufficient facts in the Panel’s record:

“In Australia — Salmon, we stated that where we have reversed a finding of a panel, we should attempt to complete a panel’s legal analysis ‘to the extent possible on the basis of the factual findings of the Panel and/or of undisputed facts in the Panel record’. Here, as we have stated, the Panel did not identify the precise levels of the CVA requirements applicable to specific manufacturers. In addition, there are not sufficient undisputed facts in the Panel record that would enable us to examine this issue ourselves. As a result, it is impossible for us to assess whether the use of domestic over imported goods is a condition ‘in law’ for satisfying the CVA requirements, and, therefore, is a condition for receiving the import duty exemption.”(696)

470.     In EC — Asbestos, the Appellate Body specified the conditions under which it would hold itself competent to “complete the analysis” of a panel. It held that it would do so when there were sufficient factual findings made by the Panel and the additional analysis required was “closely related” to the findings actually made by the Panel. Finally, the Appellate Body noted that the rules it would have had to apply, had it decided to “complete the analysis” in the present case, would have meant applying provisions which had “not previously been the subject of any interpretation or application by either panels or the Appellate Body”. Ultimately, the Appellate Body decided not to complete the panel’s analysis in this respect:

“As we have reached a different conclusion from the Panel’s regarding the applicability of the TBT Agreement to the measure, we now consider whether it is appropriate for us to rule on the claims made by Canada relating to the TBT Agreement. In previous appeals, we have, on occasion, completed the legal analysis with a view to facilitating the prompt settlement of the dispute, pursuant to Article 3.3 of the DSU.(697) However, we have insisted that we can do so only if the factual findings of the panel and the undisputed facts in the panel record provide us with a sufficient basis for our own analysis. If that has not been the case, we have not completed the analysis.(698)

The need for sufficient facts is not the only limit on our ability to complete the legal analysis in any given case. In Canada — Periodicals, we reversed the panel’s conclusion that the measure at issue was inconsistent with Article III:2, first sentence, of the GATT 1994, and we then proceeded to examine the United States’ claims under Article III:2, second sentence, which the panel had not examined at all. However, in embarking there on an analysis of a provision that the panel had not considered, we emphasized that ‘the first and second sentences of Article III:2 are closely related’ and that those two sentences are “part of a logical continuum.”(699) (emphasis added)

In this appeal, Canada’s outstanding claims were made under Articles 2.1, 2.2, 2.4 and 2.8 of the TBT Agreement. We observe that, although the TBT Agreement is intended to ‘further the objectives of GATT 1994’, it does so through a specialized legal regime that applies solely to a limited class of measures. For these measures, the TBT Agreement imposes obligations on Members that seem to be different from, and additional to, the obligations imposed on Members under the GATT 1994.

As the Panel decided not to examine Canada’s four claims under the TBT Agreement, it made no findings, at all, regarding any of these claims. Moreover, the meaning of the different obligations in the TBT Agreement has not previously been the subject of any interpretation or application by either panels or the Appellate Body. Similarly, the provisions of the Tokyo Round Agreement on Technical Barriers to Trade, which preceded the TBT Agreement and which contained obligations similar to those in the TBT Agreement, were also never the subject of even a single ruling by a panel.”(700)

471.     Similarly, in US — Hot-Rolled Steel, the Appellate Body could not complete the analysis of the Panel:

“In these circumstances, Japan requests that we rule on its claim, under Article 2.4 of the Anti-Dumping Agreement, that, in relying on downstream sales, USDOC failed to make proper ‘allowances’ in respect of the additional costs and profits of the downstream sellers, reflected in the price of these sales….

…

Our examination of this issue must be based on the factual findings of the Panel or uncontested facts in the Panel record. As the Panel did not examine this issue, and as the parties do not agree on the relevant facts, we find that there is not an adequate factual record for us to complete the analysis by examining Japan’s claim under Article 2.4 of the Anti-Dumping Agreement.”(701)

472.     Also in Canada — Dairy (Article 21.5 — New Zealand and US), the Appellate Body could not complete the Panel’s analysis in the absence of factual findings in the record:

“[T]he Panel did not find it necessary to make any factual findings on the costs of production and the facts relating to this issue were not the subject of agreement between the parties. Moreover, the Panel proceedings were conducted without the parties arguing their case, or the Panel making enquiries, from the perspective of the average total cost of production standard we have adopted.

In these circumstances, we are unable to complete the analysis by determining whether the supply of CEM involves ‘payments’ under Article 9.1(c) of the Agreement on Agriculture. Yet, we do not wish to be understood as holding that the supply of CEM does not involve ‘payments’ under Article 9.1(c). We are simply not in a position to make a ruling on this issue.”(702)

473.     In US — Section 211 Appropriations Act, on the contrary, the Appellate Body found sufficient factual findings in the record of the Panel so as to be able to complete its analysis:

“In the past, we have completed the analysis where there were sufficient factual findings in the panel report or undisputed facts in the panel record to enable us to do so, and we have not completed the analysis where there were not. In one instance, we declined to complete the analysis with respect to a ‘novel’ issue that had not been argued in sufficient detail before the panel.

…

[W]e conclude that the Panel record contains sufficient factual findings and facts undisputed between the participants to permit us to complete the analysis regarding the consistency of Sections 211(a)(2) and (b) — in respect of trade names — with Article 2.1 of the TRIPS Agreement in conjunction with Article 2(1) of the Paris Convention (1967) and Article 3.1 of the TRIPS Agreement, with Article 4 of the TRIPS Agreement, with Article 42 of the TRIPS Agreement, and with Article 2.1 of that Agreement in conjunction with Article 8 of the Paris Convention (1967).”(703)

474.     In US — Steel Safeguards, the Appellate Body, after considering whether it needed to complete the Panel’s analysis, decided that it was not necessary.(704)

475.     In US — Softwood Lumber IV, the Appellate Body could not complete the Panel’s analysis in the absence of sufficient factual findings:

“[W]e are unable to complete the legal analysis of Canada’s claim that the United States acted inconsistently with Article 14(d) of the SCM Agreement. We observe, in this regard, that panels sometimes make alternative factual findings that serve to assist the Appellate Body in completing the legal analysis should it disagree with legal interpretations developed by the panel, but this is not the case in the Panel Report before us.”(705)

6. Article 17.9: Working procedures of the Appellate Body

(a) “Working procedures shall be drawn up by the Appellate Body”

476.     In this regard, see Section XXXII below.

7. Article 17.11: concurring opinions (Rule 3.2)

477.     In EC — Asbestos, one Member of the Division hearing the appeal made a concurring statement regarding the findings on “like product” in the Appellate Body Report:

“One Member of the Division hearing this appeal wishes to make a concurring statement. At the outset, I would like to make it abundantly clear that I agree with the findings and conclusions reached, and the reasoning set out in support thereof, by the Division, in: Section V (TBT Agreement); Section VII (Article XX(b) of the GATT 1994 and Article 11 of the DSU); Section VIII (Article XXIII:1(b) of the GATT 1994); and Section IX (Findings and Conclusions) of the Report. This concurring statement, in other words, relates only to Section VI (“Like Products” in Article III:4 of the GATT 1994) of the Report.

More particularly, in respect of Section VI of the Report, I join in the findings and conclusions set out in: paragraphs 116, 126, 128, 131, 132, 141, 147 and 148. I am bound to say that, in truth, I agree with a great deal more than just the bare findings and conclusions contained in these eight paragraphs of the Report. It is, however, as a practical matter, not feasible to sort out and identify which part of which paragraph, of the sixty-odd paragraphs comprising Section VI of our Report in which I join. Nor is it feasible to offer a detailed statement with respect to the portions that would then remain. Accordingly, I set out only two related matters below.

…

… Moreover, in future concrete contexts, the line between a ‘fundamentally’ and ‘exclusively’ economic view of ‘like products’ under Article III:4 may well prove very difficult, as a practical matter, to identify. It seems to me the better part of valour to reserve one’s opinion on such an important, indeed, philosophical matter, which may have unforeseeable implications, and to leave that matter for another appeal and another day, or perhaps other appeals and other days. I so reserve my opinion on this matter.”(706)

478.     As regards dissenting/separate opinions in panel reports, see Section XI.B.7 above. For separate opinions in Article 22.6 arbitrations, see Section XXII. B.9(d) below.

8. Article 17.13: “may uphold, modify or reverse the legal findings and conclusions of the panel”

479.     In US — Wool Shirts and Blouses, the Appellate Body refused to examine a given statement by the Panel on the grounds that “this statement by the Panel is purely a descriptive and gratuitous comment providing background concerning the Panel’s understanding of how the TMB functions. We do not consider this comment by the Panel to be ‘a legal finding or conclusion’ which the Appellate Body ‘may uphold, modify or reverse’” within the meaning of Article 17.13 of the DSU.(707)

480.     In Canada — Periodicals, the Appellate Body made reference to the limits of its mandate under Articles 17.6 and 17.13. See paragraph 446 above.

481.     In EC — Poultry, the Appellate Body refused to address a certain issue raised on appeal on the grounds that they did “not consider this comment made in a footnote by the Panel to be either a ‘legal interpretation developed by the panel’ within the meaning of Article 17.6 of the DSU or a ‘legal finding’ or ‘conclusion’ that the Appellate Body may ‘uphold, modify or reverse’ under Article 17.13 of the DSU”.(708)

XVIII. Article 18    back to top

A. Text of Article 18

Article 18: Communications with the Panel or Appellate Body

1.     There shall be no ex parte communications with the panel or Appellate Body concerning matters under consideration by the panel or Appellate Body.

2.     Written submissions to the panel or the Appellate Body shall be treated as confidential, but shall be made available to the parties to the dispute. Nothing in this Understanding shall preclude a party to a dispute from disclosing statements of its own positions to the public. Members shall treat as confidential information submitted by another Member to the panel or the Appellate Body which that Member has designated as confidential. A party to a dispute shall also, upon request of a Member, provide a non-confidential summary of the information contained in its written submissions that could be disclosed to the public.

B. Interpretation and Application of Article 18

1. Article 18.2

(a) Disclosure of “written submissions”

(i) Difference between “submissions” and “statements”

482.     In Argentina — Poultry Anti-Dumping Duties, Brazil informed the Panel of its intention to make its first written submission (except the exhibits) available to the public, after providing Argentina with an opportunity to indicate whether the submission should be revised to exclude any information deemed confidential. Argentina objected and submitted that a Member is only entitled to disclose written statements of its position. According to Argentina, Article 18.2 of the DSU draws a clear distinction between “written submissions” and position “statements”. The Panel disqualified Argentina’s interpretation as being formalistic:

“On substance, we agree with Canada that Argentina’s interpretation(709) of Article 18.2 of the DSU results in a formalistic distinction between the terms ‘written submission’ and ‘statement’. In doing so, Argentina negates that a party’s written submissions to a panel necessarily contain statements of that party’s positions. In our view, the first two sentences of Article 18.2 of the DSU should not be read in formalistic isolation of one another. Read together, and in context of one another, the first two sentences of Article 18.2 of the DSU mean that while one party shall not disclose the submissions of another party, each party is entitled to disclose statements of its own positions, subject to the confidentiality requirement set forth in the third sentence of Article 18.2 of the DSU. We recall that a party’s written submissions to a panel necessarily contain statements of that party’s positions. In our view, therefore, disclosing submissions to a panel is one way for a party to disclose statements of its positions. If a party chooses to make public the totality of the statements of its own position contained in its written submission, it is entitled to do so, provided the confidentiality requirement of the third sentence of Article 18.2 of the DSU is respected. Since Argentina has not argued that Brazil violated its confidentiality obligation, we do not consider that Brazil’s decision to disclose the entirety of the statements of position contained in its first written submission to the Panel (excluding exhibits) was inconsistent with Article 18.2 of the DSU.”(710)

(ii) Timing of the disclosure

483.     Subsequently, in the proceedings in Argentina — Poultry Anti-Dumping Duties, Argentina withdrew its objection to the disclosure of Brazil’s written submission. However, it did not agree with the timing of that disclosure. According to Argentina, Brazil should not have revealed its submissions until after publication of the Panel report. The Panel again disagreed with Argentina on this point since, in its view, Article 18.2 of the DSU does not impose any time-limits for the disclosure:

“Furthermore, we note that, by the time of our first substantive meeting with the parties, Argentina was no longer arguing that Brazil was not entitled to make the entirety of its written submissions to the Panel available to the public during the Panel proceedings. Implicitly, therefore, Argentina ultimately agreed that Brazil was entitled to make its written submission available to the public pursuant to Article 18.2 of the DSU. Although Argentina argued that Brazil should not have done so until after publication of the Panel’s report, we find no basis for this argument in Article 18.2 of the DSU. Article 18.2 sets no temporal limits on Members’ rights and obligations under that provision. Nor do we find any basis for this argument in paragraph 11 of the Panel’s Working Procedures, which concerns the preparation of the descriptive part of the Panel’s report.(711) We see nothing in this provision which would impose any limits on rights accruing to Members under Article 18.2 of the DSU.”(712)

(b) Non-confidential versions of written submissions

484.     In US — Steel Safeguards, the Panel sent a letter to all parties including a series of preliminary rulings on organizational matters. Among the issues, the Panel dealt with the United States’ request to require production of non-confidential versions of written submissions within 14 days following the filing of the written submissions. The Panel responded as follows:

“The Panel recalls that, although the production of a non-confidential summary is mandatory upon request by any WTO Member, it is also WTO practice for panels to leave parties to agree on the date for production of such summaries, if any deadline is to apply. Accordingly, the Panel urges the parties to agree as early as possible on deadlines for production of such non-confidential summaries so as to ensure that appropriate information relating to the present dispute is disclosed to the public.”(713)

(c) Business confidential information (BCI)

485.     In Canada — Aircraft, the Panel adopted special Procedures Governing Business Confidential Information that went beyond the protection afforded by Article 18.2 of the DSU. The Procedures state that the Business Confidential Information is to be stored in a safe in a locked room at the premises of the relevant Geneva missions, with restrictions imposed on access to the locked room and safe. The Procedures also provide for either party to visit the other party’s Geneva mission and review the proposed location of the safe and propose any changes. In a subsequent submission, Canada stated that it could not submit BCI under the revised Procedures because they did not provide the requisite level of protection. The Panel stated:

“[T]he important distinction between the 4 November 1998 Procedures, and the final Procedures, is that the latter would facilitate the work of the parties in preparing themselves for these ‘fast-track’ proceedings, without impairing the protection afforded to the substance of the BCI. The timetable of the proceedings is such that party representatives would be likely to spend large periods of time in Geneva. As noted above, Canada itself has recognised the need for a party to have ‘reasonable access’ to BCI submitted by the other party. In the context of a fast-track case in particular, we do not consider that there is ‘reasonable access’ to the BCI if a party is required to adjust its work in respect of that BCI to the official working hours of the WTO Secretariat, excluding evenings and weekends. Under the final Procedures, authorised representatives of the parties would have had the convenience of access to the BCI of the other party at any time of day or night, rather than during the working hours of the WTO Secretariat. In our view, the final Procedures therefore strike a reasonable balance between (1) the need for ‘reasonable access’ to BCI by the Panel and the other disputing parties, and (2) the need to provide private business interests with adequate protection for their proprietary business information.”(714)

486.     In Canada — Aircraft and Brazil — Aircraft, the Appellate Body made a preliminary ruling on 11 June 1999 that it was not necessary to adopt additional procedures to protect business confidential information in the appellate proceeding. The Appellate Body held that the existing provisions concerning confidentiality of dispute settlement proceedings were sufficient for the purposes at issue:

“Pursuant to Article 17.9 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the ‘DSU’), the Appellate Body has the authority to draw up its own Working Procedures. Under Rule 16.1 of our Working Procedures for Appellate Review, a Division of the Appellate Body may adopt additional procedures for the orderly conduct of a particular appeal, provided that any such additional procedures are not inconsistent with the DSU, the other covered agreements and the Working Procedures for Appellate Review. We have concluded, however, that it is not necessary, under all the circumstances of this case, to adopt additional procedures to protect ‘business confidential information’ during these appellate proceedings.

We note that, with respect to ‘business confidential information’ submitted to the Panel that remains currently in the possession of the participants, Article XII of the Panel Procedures Governing Business Confidential Information required the parties, ‘[a]t the conclusion of the Panel’, to ‘return any printed or binary-encoded Business Confidential information in their possession to the party that submitted such Business Confidential (sic)’and to ‘destroy all tapes and transcripts of the Panel hearings that contain Business Confidential information, unless the parties mutually agree otherwise.’ It thus appears that each participant has an obligation, under the Panel Procedures, to return any Business Confidential information submitted by the other participant. The WTO Secretariat, assisting the Panel, was required, by the Panel Procedures, to ‘transmit any printed or binary-encoded Business Confidential information, plus all tapes and transcripts of the panel hearings that contain Business Confidential Information, to the Appellate Body as part of the record of the Panel proceedings.’ That information will be kept in a secure, locked cabinet in the Appellate Body Secretariat.

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.

Accordingly, we decline the request of Brazil and Canada. The reasons for this ruling will be set out more fully in the Appellate Body Report in this appeal.”(715)

487.     In its final ruling in Canada — Aircraft, the Appellate Body determined that it had no further reasons to add to the first two paragraphs of its preliminary ruling, referenced in paragraph 486 above. Noting that its ruling applies only to the request for additional procedures to protect business confidential information, the Appellate Body stated:

“[T]he 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.

…

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.”(716)

488.     In EC — Bananas III (US) (Article 22.6 — EC), the United States requested the Arbitrators to establish procedures for the handling of business confidential information similar to those established in several pending panel procedures.(717) Under the United States proposal, there would be two levels of BCI: regular BCI and super BCI. Regular BCI was described as company-specific information that was non-public and sensitive, but that could be extrapolated from other public and non-public information available to governments and the company’s competitors. Super BCI was described as non-public, sensitive company-specific information that could not be so extrapolated.(718) The European Communities objected to the proposal on the grounds that working procedures on confidentiality should not be adopted on a case-by-case basis, but rather by WTO Members as a whole.(719) The Arbitrators finally adopted BCI procedures where, while agreeing with the United States that special rules were justified in light of the type of information involved, they did not accept the need for special treatment of super BCI.(720)

489.     In Brazil — Aircraft (Article 22.6 — Brazil), Brazil insisted in the course of the proceedings on the confidentiality of certain documents it had provided to the Arbitrators. The Arbitrators, who were mindful of the serious problems that could be caused by the disclosure of certain commercial or financial information, decided to prepare two versions of their report. The first version, including the details of their calculations and all the information relied upon, was issued exclusively to the parties on a confidential basis. The second version, in which the most commercially sensitive information had been removed, was circulated to the Members.(721)

490.     In Canada — Wheat Exports and Grain Imports, the Panel, in a preliminary ruling,(722) having rejected the parties’ specific proposals for the protection of confidential information, adopted its own procedures for the protection of such information.(723)

(d) Confidentiality implications of private counsel’s intervention(724)

(i) General

491.     In Thailand — H-Beams, an industry association submitted an amicus brief which cited Thailand’s confidential submission. Thailand then claimed that Poland’s private counsel might have violated WTO rules of confidentiality by providing Thailand’s submission to the said association. Although Poland and the lawyer concerned denied the alleged breach of confidentiality, the Appellate Body rejected the amicus brief in a preliminary ruling:

“The terms of Article 17.10 of the DSU are clear and unequivocal: ‘[t]he proceedings of the Appellate Body shall be confidential’. Like all obligations under the DSU, this is an obligation that all Members of the WTO, as well as the Appellate Body and its staff, must respect. WTO Members who are participants and third participants in an appeal are fully responsible under the DSU and the other covered agreements for any acts of their officials as well as their representatives, counsel or consultants. We emphasized this in Canada — Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, para. 145, where we stated that:

… 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. (emphasis added)

We note that Poland has made substantial efforts to investigate this matter, and to gather information from its legal counsel, Hogan & Hartson L.L.P. We note as well the responses from the third participants, the European Communities, Japan and the United States. Furthermore, Poland has accepted the proposal made by Hogan & Hartson L.L.P. to withdraw as Poland’s legal counsel in this appeal. On the basis of the responses we have received from Poland and from the third participants, and on the basis of our own examination of the facts on the record in this appeal, we believe that there is prima facie evidence that CITAC received, or had access to, Thailand’s appellant’s submission in this appeal.

We see no reason to accept the written brief submitted by CITAC in this appeal. Accordingly, we have returned this brief to CITAC.”(725)

492.     The Panel on Brazil — Aircraft (Article 21.5 — Canada II) rejected Brazil’s arguments that Canada had acted inconsistently with the requirements of the DSU or the Panel’s working procedures by providing advisers who were not designated as members of its delegation with access to information submitted to the Panel by Brazil. A member of the Canadian delegation at a meeting of the Panel with the parties had provided a copy of Brazil’s written version of its oral statement to persons who were not members of its delegation. Further, Canada had “shared [Brazil’s submissions and statements] with members of a private law firm retained by a Canadian aircraft manufacturer”.(726) The Panel advised as follows:

“In our view, it emerges from [Article 18.2 of the DSU] that Canada must keep confidential all information submitted to this Panel by Brazil.(727) However, as the Appellate Body has noted, ‘a Member’s obligation to maintain the confidentiality of […] proceedings extends also to the individuals whom that Member selects to act as its representatives, counsel and consultants.’(728) Thus, the Appellate Body clearly assumed that Members may provide confidential information also to non-government advisors.

We see nothing in Article 18.2 of the DSU, or any other provision of the DSU,(729) to suggest that Members may share such confidential information with non-government advisors only if those advisors are members of an official delegation at a panel meeting.(730) Indeed, paragraph 13 of this Panel’s Working Procedures expressly provides that:

The parties and third parties to this proceeding have the right to determine the composition of their own delegations. Delegations may include, as representatives of the government concerned, private counsel and advisers. The parties and third parties shall have responsibility for all members of their delegations and shall ensure that all members of their delegations, as well as any other advisors consulted by a party or third party, act in accordance with the rules of the DSU and the working procedures of this Panel, particularly in regard to confidentiality of the proceedings. Parties shall provide a list of the participants of their delegation before or at the beginning of the meeting with the Panel. (emphasis added)

It is apparent from the second and third sentences of paragraph 13 of the Working Procedures that the ‘other advisors’ referred to are advisors who are not part of a Member’s delegation at a panel meeting. It is equally clear to us that paragraph 13 is based on the premise that parties to panel proceedings may give their ‘other advisors’ access to confidential information submitted by the other party.(731) Were it otherwise, there would be no point in requiring parties to safeguard the confidentiality of panel proceedings in respect of such ‘other advisors’.(732)

On the basis of the foregoing, we are unable to accept Brazil’s argument that Canada acted inconsistently with the requirements of the DSU or this Panel’s Working Procedures by giving advisors not designated as members of its delegation access to information submitted to this Panel by Brazil.(733)

In reaching this conclusion, we note, however, that, pursuant to paragraph 13 of the Working Procedures, Canada must ensure that any advisors who were not members of its official delegation respect the confidentiality of the present proceedings.”(734)

493.     In relation to the involvement of private lawyers, the Panel on Brazil — Aircraft (Article 21.5 — Canada II) indicated that it had no basis for questioning a confidentiality agreement between the relevant private lawyers and the Canadian Government. For the Panel, confidentiality rules are not to be used by a panel to “stifle” necessary communication between Member governments and their advisers, provided adequate safeguards are in place.

“We note Canada’s statement that the members of the law firm which have had access to Brazil’s submissions have been part of its litigation team and have served as ‘advisors’ to the Government of Canada. Since no members of a private law firm were part of Canada’s delegation to the meeting of the Panel with the parties, the private lawyers Canada says were advising it fall within the ‘other advisors’ category within the meaning of paragraph 13 of the Panel’s Working Procedures. It was (and is), therefore, the responsibility of Canada to ensure that those private lawyers maintain the confidentiality of the documents submitted by Brazil.

Based on Canada’s representations, we also understand that the law firm in question has an attorney-client relationship with a Canadian regional aircraft manufacturer. We think that the dual role performed by the law firm — as advisor to the Government of Canada and attorney for a Canadian regional aircraft manufacturer — places the law firm in a particularly delicate position as far as the protection of Brazil’s submissions, statements and exhibits is concerned.(735) In our view, it is crucial, in such circumstances, that Canada put in place appropriate safeguards to ensure non-disclosure of confidential information.

…

We agree that maintaining confidentiality in accordance with the obligations of the DSU is important. On the other hand, in applying the rules on confidentiality we must be careful not to stifle necessary communication between Member governments and their advisors, as long as appropriate safeguards are in place. In the absence of arguments and evidence to the contrary, we have no basis for questioning Canada’s representation that the relevant private lawyers are subject to a confidentiality agreement with the Government of Canada.(736)”(737)

(ii) Joint representation

494.     The Panel in EC — Tariff Preferences addressed the issue of whether the joint representation of the complaining party and a third party by the same legal counsel (in this regard, see Section XXXVI.E.3 below on conflict of interest) breached any confidentiality rules under the DSU. The Panel considered that all Members involved in the dispute settlement process have the obligation of ensuring confidentiality as required under Article 18.2 and Article 14.1 as well as the Working Procedures of the DSU. The Panel also noted that this obligation extended to all representatives of the parties, including their legal counsel:

“Although the European Communities does not specify which provision(s) of the DSU may be of concern, the Panel considers that the most relevant DSU rule that could be implicated is Article 18.2, whose first sentence states that ‘[w]ritten submissions to the panel or the Appellate Body shall be treated as confidential, but shall be made available to the parties to the dispute’. A related rule is Article 14.1 of the DSU which provides that ‘[p]anel deliberations shall be confidential’. Article 10 of the DSU and paragraph 12 of the Working Procedures, Appendix 3 to the DSU, which set out steps of the panel’s work, could also be implicated, as third parties are permitted limited participation at various stages of panel proceedings, as compared to the parties. In particular, third parties are not provided the right to participate in the interim review process under either Article 10 or the Working Procedures. In the view of the Panel, Article 18.2 of the DSU would be the more typical and relevant rule, where third parties only receive the first submissions of the parties to the Panel and only participate in a single, special third-party session.

As a general matter, the Panel considers that Members involved in the dispute settlement process have the obligation of ensuring confidentiality, as required by Article 18.2, Article 14.1(738) and the Working Procedures, regardless of who serves as their legal counsel. Needless to say, this obligation of Members involved in the dispute settlement process must be respected by all of their representatives, including legal counsel. In addition, as a general professional discipline, it is the responsibility of counsel to maintain the confidentiality of all communications between it and the party (or third party) it represents. In this regard, the Panel again notes that bar associations in many jurisdictions have elaborated rules of conduct dealing explicitly with confidentiality between clients and their legal counsel.(739)”(740)

495.     The Panel in EC — Tariff Preferences further considered that the issue of confidentiality did not arise thanks to the enhanced third-party rights given to all third parties during the proceedings. The Panel also considered that the European Communities had not provided evidence demonstrating any disclosure of confidential information by the legal counsel to the third party that it simultaneously represented:

“In this dispute, India argues that the issue of confidentiality does not arise for India and Paraguay because of the enhanced rights granted to all third parties. On the other hand, the European Communities responds that the problem is mitigated but not totally disposed of, as there is still the possibility of access to Panel documents, including the Interim Report by third party Paraguay, due to the use of the same legal counsel.(741) However, the Panel considers that due to the enhanced third-party rights pursuant to which all third parties receive all submissions of the parties to the Panel and participate in all meetings of the Panel with the parties, Paraguay was actually accorded the right to share all submissions and Panel documents which were distributed before the end of the Second Substantive Meeting of the Panel. After the Panel’s Second Substantive Meeting, no third party was given further enhanced right to participate in the process and, particularly, to influence the Panel’s Findings. Paraguay has not gained any litigation advantage over other third parties in this dispute through its use of the same legal counsel as India. The Panel also notes that the European Communities has not provided any argument or evidence to indicate that in fact there is a disclosure of confidential information, including the Interim Report of the Panel, to Paraguay due to the joint representation of India and Paraguay by the same legal counsel. Under such circumstances, the Panel finds that the confidentiality issue has not arisen in this dispute.”(742)

XIX. Article 19    back to top

A. Text of Article 19

Article 19: Panel and Appellate Body Recommendations

1.     Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned(9) bring the measure into conformity with that agreement.(10) In addition to its recommendations, the panel or Appellate Body may suggest ways in which the Member concerned could implement the recommendations.

(footnote original) 9 The “Member concerned” is the party to the dispute to which the panel or Appellate Body recommendations are directed.

(footnote original) 10 With respect to recommendations in cases not involving a violation of GATT 1994 or any other covered agreement, see Article 26.

2.     In accordance with paragraph 2 of Article 3, in their findings and recommendations, the panel and Appellate Body cannot add to or diminish the rights and obligations provided in the covered agreements.

B. Interpretation and Application of Article 19

1. Article 19.1

(a) “bring the measure into conformity with that agreement”

(i) Measure in force

496.     In India — Autos, the Panel noted that Article 19 “envisages a situation where a violation is in existence”.(743)

497.     In Chile — Price Band System, the Panel remarked that, pursuant to Article 19.1, “a panel is required to make the recommendation to bring a measure which it has found inconsistent into conformity if that measure is still in force. Conversely, when a panel concludes that a measure was inconsistent with a covered agreement, the said recommendation cannot and should not be made.”(744)

(ii) Measure no longer in existence

498.     In US — Certain EC Products, the Panel had recommended that the DSB request the United States to bring its measure into conformity with its obligations under the WTO Agreement.(745) However, the Appellate Body, having upheld the Panel’s finding that the “measure at issue in this dispute [was] no longer in existence”, concluded that the Panel’s recommendation was incongruent:

“[T]here is an obvious inconsistency between the finding of the Panel that ‘the 3 March Measure is no longer in existence’ and the subsequent recommendation of the Panel that the DSB request that the United States bring its 3 March Measure into conformity with its WTO obligations. The Panel erred in recommending that the DSB request the United States to bring into conformity with its WTO obligations a measure which the Panel has found no longer exists.”(746)

499.     In Chile — Price Band System, the Panel refrained from issuing recommendations on the grounds that the measures at issue were no longer in existence. The Panel however considered that this fact did not preclude it from making findings on those measures if such considerations were necessary to secure a positive solution to the dispute. In particular, the Panel stated that:

“Article 19.1 DSU would not prevent us from making findings regarding the consistency of an expired provisional safeguard measure, if we were to consider that the making of such findings is necessary ‘to secure a positive solution’ to the dispute. We would not, however, formulate recommendations with regard to those measures.”(747)

(iii) Relevance of events that occurred during the proceedings

500.     In India — Autos, the Panel noted that certain events occurred in the course of the proceedings that had affected the existence or persistence of the alleged violations whereby the respondent had requested such events be taken into account when making recommendations under Article 19.1. In these circumstances, the Panel felt that it would not be making an “objective assessment of the matter before it”, had it chosen not to address the impact of events that took place in the course of the proceedings, in assessing the appropriateness of making a recommendation under Article 19.1.(748)

(b) “the panel … may suggest ways in which the Member concerned could implement the recommendation”

(i) Panel’s discretion to suggest ways to implement

501.     In US — Steel Plate, the Panel indicated that it was “free to suggest ways in which we believe the [defendant] could appropriately implement our recommendation”.(749)

502.     In US — Softwood Lumber V, the Panel considered that “[b]y virtue of Article 19.1, panels have discretion (‘may’) to suggest ways in which a Member could implement the relevant recommendation. However, a panel is not required to make a suggestion should it not deem it appropriate to do so.”(750)

503.     As regards the effect of a finding of violation of Article 3.1 of the SCM Agreement on the Panel’s discretion to suggest ways to implement, in light of the Article 4.7 of the SCM Agreement withdrawal requirement, see Section III.B.1(e) of the Chapter on the SCM Agreement. See also paragraph 534 below.

504.     In US — Underwear, the Panel recommended the DSB to request the United States bring its measure into compliance with United States obligations under the Agreement on Textiles and Clothing by removing the measure inconsistent with the United States’ obligation. The Panel went further in suggesting the following:

“We find that such compliance can best be achieved and further nullification and impairment of benefits accruing to Costa Rica under the ATC best be avoided by prompt removal of the measure inconsistent with the obligations of the United States. We further suggest that the United States bring the measure challenged by Costa Rica into compliance with US obligations under the ATC by immediately withdrawing the restriction imposed by the measure.”(751)

505.     In EC — Bananas III (Article 21.5 — Ecuador), the Panel made the following recommendations to the European Communities to bring its banana import regime into conformity with WTO rules after noting that previous implementation attempts had been only partly successful:

“First, the European Communities could choose to implement a tariff-only system for bananas, without a tariff quota. This could include a tariff preference (at zero or another preferential rate) for ACP bananas. If so, a waiver for the tariff preference may be necessary unless the need for a waiver is obviated, for example, by the creation of a free-trade area consistent with Article XXIV of GATT. This option would avoid the need to seek agreement on tariff quota shares.

Second, the European Communities could choose to implement a tariff-only system for bananas, with a tariff quota for ACP bananas covered by a suitable waiver.

Third, the European Communities could maintain its current bound and autonomous MFN tariff quotas, either without allocating any country-specific shares or allocating such shares by agreement with all substantial suppliers consistently with the requirements of the chapeau to Article XIII:2. The MFN tariff quota could be combined with the extension of duty-free treatment (or preferential duties) to ACP imports.”(752)

506.     In India — Patents (US), the Panel declined the United States’ request to the Panel to suggest the manner in which India should implement its obligation, since in its opinion it would have impaired India’s right to choose how to implement the TRIPS Agreement pursuant to Article 1.1.(753) However it did suggest that India take into account the interests of persons who would have filed patent applications if India had had an appropriate mechanism in place:

“[I]n establishing a mechanism that preserves novelty and priority in respect of applications for product patents in respect of pharmaceutical and agricultural chemical inventions during the transitional period, India should take into account the interests of those persons who would have filed patent applications had an appropriate mechanism been maintained since the expiry of the Patents Ordinance 1994, as well as those who have already filed such applications under that Ordinance or the administrative practices currently in place.”(754)

507.     In Guatemala — Cement I, the Panel concluded that Guatemala had violated the provisions of the Anti-Dumping Agreement by initiating an investigation when there was not sufficient evidence to justify such an initiation under Article 5.3 of the Agreement. Therefore it suggested that the anti-dumping measure be revoked. The Panel stated:

“[T]he entire investigation rested on an insufficient basis, and therefore should never have been conducted. This is, in our view, a violation which cannot be corrected effectively by any actions during the course of the ensuing investigation. Therefore, we suggest that Guatemala revoke the existing anti-dumping measure on imports of Mexican cement, because, in our view, this is the only appropriate means of implementing our recommendation.”(755)

508.     In India — Quantitative Restrictions, the Panel suggested that a reasonable period of time be granted to India in order to remove the imports restrictions which were not justified under Article XVIII:B. The Panel also brought to the attention of the DSB some factors to be taken into consideration that had an added importance for the principle of special and differential treatment. The Panel suggested

“that the parties negotiate an implementation/phase-out period. Should it be impossible for them to do so, we suggest that the reasonable period of time, whether determined by arbitration (Article 21.3(c) of the DSU) or other means, be set in light of the above-listed factors.”(756)

509.     In US — Lead and Bismuth II, the European Communities had requested the Panel “to suggest that the United States amend its countervailing duty laws to recognize the principle that a privatization at market price extinguishes subsidies”. However, according to the Panel, the European Communities had not identified any provision of the United States’ law that required the imposition of countervailing duties in the circumstances of the present dispute. Thus, the Panel was unable to make the suggestion requested by the European Communities. However it noted that the United States had continued to apply its change-in-ownership methodology during the course of the dispute. It therefore suggested

“that the United States takes all appropriate steps, including a revision of its administrative practices, to prevent the aforementioned violation of Article 10 of the SCM Agreement from arising in the future.”(757)

510.     In Guatemala — Cement II, the Panel suggested that Guatemala revoke its anti-dumping measure on imports of grey Portland cement from Mexico. However, it declined Mexico’s request that the Panel suggest to Guatemala that it should refund the antidumping duties:

“In respect of Mexico’s request that we suggest that Guatemala refund the anti-dumping duties collected, we note that Guatemala has now maintained a WTO-inconsistent anti-dumping measure in place for a period of three and a half years…. Mexico’s request raises important systemic issues regarding the nature of the actions necessary to implement a recommendation under Article 19.1 of the DSU, issues which have not been fully explored in this dispute. Thus, we decline Mexico’s request to suggest that Guatemala refund the anti-dumping duties collected.”(758)

511.     In US — Cotton Yarn, Pakistan requested the Panel to suggest that the most appropriate way for the United States to implement the Panel’s ruling would be to rescind the safeguard action forthwith. The Panel agreed and held as follows:

“In this case, we recommend that the Dispute Settlement Body request that the United States bring the measure at issue into conformity with its obligations under the ATC. We suggest that this can best be achieved by prompt removal of the import restriction.“(759)

512.     In US — Offset Act (Byrd Amendment), the Panel considered that, “although there could potentially be a number of ways in which the United States could bring the [concerned measure] into conformity”, it found it “difficult to conceive of any method which would be more appropriate and/or effective than the repeal of the … measure”. Therefore, the Panel suggested that the United States repeal the WTO-inconsistent measures.(760)

513.     In Argentina — Poultry Anti-Dumping Duties, the Panel “[could] not perceive how Argentina could properly implement [the] recommendation without revoking the anti-dumping measure at issue in this dispute. Accordingly, [the Panel suggested] that Argentina repeals Resolution No. 574/2000 imposing definitive anti-dumping measures on eviscerated poultry from Brazil.”(761)

514.     In India — Patents (US), the Panel declined the United States’ request to the Panel to suggest a manner in which India should implement its obligation, since in its opinion it would impair India’s right to choose how to implement the TRIPS Agreement pursuant to Article 1.1.(762) However it did suggest to India to take into account the interests of those persons who would have filed patent applications. In this regard, see paragraph 506 above.

515.     In US — DRAMS, the Panel declined to make any suggestions on the grounds that there was a range of possible ways through which the United States could appropriately implement the Panel’s recommendation.(763)

516.     In US — Lead and Bismuth II, the European Communities had requested the Panel to suggest that the United States amend its countervailing duty laws to recognize the principle that a privatization at market price extinguishes subsidies. However, according to the Panel, the European Communities had not identified any provision of United States’ law that required the imposition of countervailing duties in the circumstances of that dispute; and thus, it was unable to make the suggestion requested by the European Communities. See paragraph 509 above in this regard.

517.     In Guatemala — Cement II, the Panel declined Mexico’s request that the Panel suggest to Guatemala that it should refund the anti-dumping duties. The Panel, however, suggested that Guatemala revoke its anti-dumping measure on imports of grey Portland cement from Mexico. In this regard see paragraph 510 above.

518.     In US — Stainless Steel, Korea requested the Panel to suggest that the United States revoke its anti-dumping orders on stainless steel plate and sheet from Korea. The Panel noted that the Anti-Dumping Agreement comprised 18 separate articles and numerous obligations; thus violations might have different forms and implications. The Panel further recalled that Korea’s claims related to the determinations of the Department of Commerce regarding the margin of dumping. It found that the determinations were inconsistent with the Anti-Dumping Agreement in a number of respects, but it could not say that had the Department of Commerce acted consistently with the Anti-Dumping Agreement, it would not have found the existence of dumping. In this case the Panel concluded:

“Under these circumstances, while there can be little doubt that revocation would be one way that the United States could implement our recommendation, we are not prepared to conclude at this time that it is the only way to do so. Accordingly, we decline Korea’s request to suggest that the United States revoke the anti-dumping duties at issue in this dispute.”(764)

519.     In US — Hot Rolled Steel, the Panel declined to make specific suggestions in accordance with Japan’s requests. It considered that the modalities of the implementation of its recommendations were for the United States to determine.(765) It further noted that Japan’s request for reimbursement raised important systemic issues that had not been fully explored in the dispute.(766)

520.     In US — Line Pipe, the Panel declined Korea’s request for a specific suggestion on ways in which the United States might implement the recommendations, stating that there might be other ways in which the United States could implement its recommendation.(767)

521.     In US — Steel Plate, the Panel indicated that it was “free to suggest ways in which we believe the [defendant] could appropriately implement our recommendation” but decided not to do so in that case.(768)

522.     In Chile — Price Band System, the Panel recommended that the DSB request Chile to bring its price band system measure into conformity with its obligations under the Agreement on Agriculture and the GATT 1994. However it declined to make any recommendation with respect to the safeguard measures Argentina had challenged.(769)

523.     In EC — Sardines, Peru requested the Panel to make a specific suggestion, i.e. that the European Communities permit Peru without any further delay to market its sardines in accordance with the naming standard consistent with the TBT Agreement. However, the Panel declined to make the suggestion stating that the authority under Article 19.1 was a discretionary one.(770)

524.     In US — Countervailing Measures on Certain EC Products, the European Communities requested the Panel to suggest possible means of implementation by the United States, inter alia, the revocation of a number of countervailing duty orders. According to the European Communities, the Panel should do this on the grounds that the United States had shown a lack of good faith with respect to their previous dispute settlement proceedings. The Panel declined to do so and explained that its findings were sufficiently clear and that WTO Members have discretion in how they bring their measures into conformity with their WTO obligations.(771)

525.     In EC — Tariff Preferences, India requested the Panel to suggest to the European Communities that it bring its measure into conformity with its obligations under GATT 1994 by obtaining a waiver. The Panel did not consider it appropriate to make such a suggestion to the European Communities in light of the fact that there was more than one way that the European Communities could bring its measure into conformity and because the European Communities had requested a waiver which was still pending.(772)

526.     In US — Oil Country Tubular Goods Sunset Reviews, Argentina requested that the Panel suggest to the United States that it bring its measures into conformity with its WTO obligations by revoking the anti-dumping order and repealing or amending the laws and regulations at issue. However, the Panel saw “no particular reason to make such a suggestion and therefore decline[d] Argentina’s request”.(773)

527.     In EC — Tube or Pipe Fittings, Brazil requested the Panel to suggest that the European Communities repeal its anti-dumping duty order and reimburse all the anti-dumping duties collected thereunder. The Panel declined to do so.(774)

(ii) Choice of means of implementation

528.     In US — Steel Plate, the Panel referred to Article 21.3, which concerns the defendant’s duty to inform the DSB of its intentions in respect of implementation, as supporting its statement that “while a panel may suggest ways of implementing its recommendation, the choice of means of implementation is decided, in the first instance, by the Member concerned”.(775)

529.     In US — Countervailing Measures on Certain EC Products, the Panel rejected a request by the European Communities to make suggestions on the way that the United States should bring its measure into conformity and pointed out that “the Members have discretion in how to bring a measure found to be WTO-inconsistent into conformity with WTO obligations”.(776)

(iii) Surveillance of implementation

530.     In Brazil — Aircraft (Article 21.5 — Canada), Canada requested that the Panel suggest that the parties develop mechanisms that would allow Canada to verify compliance with the original recommendation of the DSB. The Panel stated:

“In our view, Article 19.1 appears to envision suggestions regarding what could be done to a measure to bring it into conformity or, in case of a recommendation under Article 4.7 of the SCM Agreement, what could be done to ‘withdraw’ the prohibited subsidy. It is not clear if Article 19.1 also addresses issues of surveillance of those steps. That said, any agreement that WTO Members might reach among themselves to improve transparency regarding the implementation of WTO obligations can only be encouraged.”(777)

2. Article 19.2

531.     In Chile — Alcoholic Beverages, Chile claimed that through its findings, the Panel had added to the rights and obligations of WTO Members under the WTO Agreement, contrary to Article 19.2 of the DSU. The Appellate Body rejected this argument. See paragraphs 20 and 83 above.

3. Relationship with other Articles

(a) Article 11

532.     With respect to the relationship with Article 11 of the DSU, see paragraph 398 above.

(b) Articles 16, 21 and 22

533.     In EC — Bed Linen (Article 21.5 — India), the Appellate Body concluded that a reading of Articles 16.4 and 19.1, 21.1, 21.3 and 22.1, taken together, clarifies that “an unappealed finding included in a panel report that is adopted by the DSB must be treated as a final resolution to a dispute between the parties in respect of the particular claim and the specific component of a measure that is the subject of that claim”.(778)

4. Relationship with other WTO Agreements

(a) Article 4.7 of the SCM Agreement

534.     In Australia — Automotive Leather II (Article 21.5 — US), the Panel addressed the issue of the relationship between the recommendation to “bring the measure into conformity” under Article 19.1 and the recommendation to “withdraw the subsidy” under Article 4.7 of the SCM Agreement. In this context and considering whether Article 4.7 allowed “retroactive” remedies, the Panel rejected the argument that “Article 19.1 of the DSU, even in conjunction with Article 3.7 of the DSU, requires the limitation of the specific remedy provided for in Article 4.7 of the SCM Agreement to purely prospective action.” The Panel held that:

“An interpretation of Article 4.7 of the SCM Agreement which would allow exclusively ‘prospective’ action would make the recommendation to ‘withdraw the subsidy’ under Article 4.7 indistinguishable from the recommendation to ‘bring the measure into conformity’ under Article 19.1 of the DSU, thus rendering Article 4.7 redundant.

…

… Article 19.1 of the DSU is not the basis of the recommendation in a case involving prohibited subsidies, such as this one. Rather, the recommendation to ‘withdraw the subsidy’ is required by Article 4.7 of the SCM Agreement … Thus, to the extent that ‘withdraw the subsidy’ requires some action that is different from ‘bring the measure into conformity’, it is that different action which prevails.”(779)

535.     See also Section IV.B.6 of the Chapter on the SCM Agreement.

XX. Article 20    back to top

A. Text of Article 20

Article 20: Time-frame for DSB Decisions

Unless otherwise agreed to by the parties to the dispute, the period from the date of establishment of the panel by the DSB until the date the DSB considers the panel or appellate report for adoption shall as a general rule not exceed nine months where the panel report is not appealed or 12 months where the report is appealed. Where either the panel or the Appellate Body has acted, pursuant to paragraph 9 of Article 12 or paragraph 5 of Article 17, to extend the time for providing its report, the additional time taken shall be added to the above periods.

B. Interpretation and Application of Article 20

536.     A table showing the time-frames as regards panel and Appellate Body reports adopted not later than 31 December 2004 is included in Section XXXVII below.

Footnotes:

653. Appellate Body Report on Canada — Periodicals, footnote 28 to para. 19. back to text
654. WT/DSB/M/1. back to text
655. PC/IPL/13. back to text
656. Original Notice of Appeal filed on 2 October 2003 — withdrawn on 3 October 2003. back to text
657. Appellate Body Report on EC — Hormones, communication from the Appellate Body — WT/DS26/11, WT/DS48/9. back to text
658. Appellate Body Report on US — Lead and Bismuth II, para. 8. back to text
659. Appellate Body Report on EC — Asbestos, para. 8. back to text
660. Appellate Body Report on Thailand — H-Beams, para. 7. back to text
661. Appellate Body Report on Canada — Periodicals, p. 22. back to text
662. Appellate Body Report on EC — Bananas III, paras. 206, 237 and 239. back to text
663. Examples of factual findings that the Appellate Body have refrained from reviewing are Appellate Body Report on EC — Bananas III, paras. 206, 237 and 239; Appellate Body Report on Australia — Salmon, paras. 259-261 (see para. 449 below); Appellate Body Report on Japan — Agricultural Products II, para. 98; Appellate Body Report on India — Quantitative Restrictions, paras. 143-144. back to text
664. Appellate Body Report on EC — Hormones, para. 132. back to text
665. Appellate Body Report on Australia — Salmon, para. 261. back to text
666. Appellate Body Report on Korea — Alcoholic Beverages, para. 161. back to text
667. (footnote original) Appellate Body Report, Korea — Dairy Safeguard, supra, footnote 29, para. 137. back to text
668. (footnote original) Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones) (“European Communities — Hormones”), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135, at 183, para. 132. back to text
669. (footnote original) Appellate Body Report, Korea — Taxes on Alcoholic Beverages (“Korea — Alcoholic Beverages”), WT/DS75/AB/R, WT/DS84/AB/R, adopted 17 February 1999, paras. 161 and 162. back to text
670. (footnote original) Appellate Body Report, Korea — Taxes on Alcoholic Beverages (“Korea — Alcoholic Beverages”), WT/DS75/AB/R, WT/DS84/AB/R, adopted 17 February 1999, paras. 161 and 162. back to text
671. Appellate Body Report on US — Wheat Gluten, paras. 150-151. back to text
672. As regards the consideration of municipal law by panels, see Section XI.B.3(b). back to text
673. Appellate Body Report on US — Section 211 Appropriations Act, para. 106. back to text
674. Appellate Body Report, EC — Hormones, para. 132. back to text
675. Appellate Body Report on US — Softwood Lumber V, para. 163. back to text
676. (footnote original) Article 17.6 of the DSU provides: “An appeal shall be limited to issues of law covered in the panel report and legal interpretations developed by the panel.” back to text
677. Appellate Body Report on Chile — Price Band System, para. 224. back to text
678. (footnote original) Within the meaning of Article 17.13 of the DSU. back to text
679. Appellate Body Report on US — Wool Shirts and Blouses, p. 17. back to text
680. Appellate Body Report on EC — Poultry, para. 107. back to text
681. Appellate Body Report on EC — Tube or Pipe Fittings, paras. 183-184. back to text
682. Appellate Body Report on Canada — Aircraft, para. 211. back to text
683. Appellate Body Report on US — FSC, para. 103. back to text
684. Appellate Body Report on US — Offset Act (Byrd Amendment), para. 222. back to text
685. Appellate Body Report on US — Gasoline, pp. 22-29. back to text
686. (footnote original) WT/DS2/AB/R, adopted 20 May 1996, pp. 22-29. back to text
687. Appellate Body Report on Canada — Periodicals, pp. 24-26. back to text
688. Appellate Body Report on EC — Hormones, para. 222. back to text
689. (footnote original) Adopted 20 May 1996, WT/DS2/AB/R, pp. 13-29. back to text
690. (footnote original) Adopted 30 July 1997, WT/DS31/AB/R, pp. 23-24. back to text
691. Appellate Body Report on EC — Poultry, para. 156. back to text
692. Appellate Body Report on Australia — Salmon, paras. 117-118. back to text
693. Appellate Body Report on Argentina — Footwear (EC), para. 98. back to text
694. Appellate Body Report on Korea — Dairy, para. 92. back to text
695. Appellate Body Report on Korea — Dairy, para. 102. back to text
696. Appellate Body Report on Canada — Autos, para. 145. back to text
697. (footnote original) See, for instance, Appellate Body Report, United States — Gasoline, supra, footnote 15, at 18 V; Appellate Body Report, Canada — Certain Measures Concerning Periodicals (“Canada — Periodicals”), WT/DS31/AB/R, adopted 30 July 1997, DSR 1997:I, 449, at 469 V; Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones) (“European Communities — Hormones”), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, paras. 222 V; Appellate Body Report, European Communities — Measures Affecting the Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July 1998, paras. 156 V; Appellate Body Report, Australia — Measures Affecting Importation of Salmon (“Australia — Salmon”), WT/DS18/AB/R, adopted 6 November 1998, paras. 117 V, 193 V and 227 V; Appellate Body Report, United States — Shrimp, supra, footnote 14, paras. 123 V; Appellate Body Report, Japan — Measures Affecting Agricultural Products, WT/DS76/AB/R, adopted 19 March 1999, paras. 112 V; Appellate Body Report, United States — Tax Treatment for “Foreign Sales Corporations”, WT/DS108/AB/R, adopted 20 March 2000, paras. 133 V; Appellate Body Report, Canada — Measures Affecting the Export of Civilian Aircraft, Recourse by Brazil to Article 21.5 of the DSU, WT/DS70/AB/RW, adopted 4 August 2000, paras. 43 V; and Appellate Body Report, United States — Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities (“United States — Wheat Gluten”), WT/DS166/AB/R, adopted 19 January 2001, paras. 80 V and 127 V.
     In addition, after modifying the panel’s reasoning, we have, WT/DS166/AB/R, adopted 19 January 2001, paras. 80 V and on occasion, applied our interpretation of the legal provisions at issue to the facts of the case (see, for instance, Appellate Body Report, Argentina — Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WT/DS56/AB/R, adopted 22 April 1998, paras. 48 V; Appellate Body Report, Canada — Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WT/DS103/AB/R, WT/DS113/AB/R, adopted 27 October 1999, paras. 138 V; Appellate Body Report, Argentina — Safeguard Measures on Imports of Footwear, WT/DS121/AB/R, adopted 12 January 2000, paras. 109 V). back to text
698. (footnote original) See Appellate Body Report, Australia — Salmon, supra, footnote 48, paras. 209 V, 241 V and 255; Appellate Body Report, Korea — Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000, paras. 91 V and 102 V; Appellate Body Report, Canada — Certain Measures Affecting the Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, paras. 133 V and 144 V; Appellate Body Report, Korea — Measures Affecting Imports of Fresh, Chilled and Frozen Beef (“Korea  — Beef”), WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, paras. 128 V. back to text
699. (footnote original) Supra, footnote 48, at 469. back to text
700. Appellate Body Report on EC — Asbestos, paras. 78-81. back to text
701. Appellate Body Report on US — Hot-Rolled Steel, paras. 174 and 180. back to text
702. Appellate Body Report on Canada — Dairy (Article 21.5 — New Zealand and US), paras. 235-236. back to text
703. Appellate Body Report on US — Section 211 Appropriations Act, paras. 343 and 352. back to text
704. Appellate Body Report on US — Steel Safeguards, paras. 430-431. back to text
705. Appellate Body Report on US — Softwood Lumber IV, para. 118. back to text
706. Appellate Body Report on EC — Asbestos, paras. 149-150 and 154. back to text
707. Appellate Body Report on US — Wool Shirts and Blouses, p. 17 and footnote 26. back to text
708. Appellate Body Report on EC — Poultry, para. 107. back to text
709. (footnote original) We are referring to the arguments set forth in Argentina’s submission of 15 August 2002. back to text
710. Panel Report on Argentina — Poultry Anti-Dumping Duties, para. 7.14. back to text
711. (footnote original) Paragraph 11 of the Panel’s Working Procedures provides that “[t]he descriptive part of the Panel’s report will include the procedural and factual background to the present dispute. There will be no description of the main arguments of the parties and third parties as such. Instead, the Panel will attach the parties’ submissions (including first and second written submissions, written versions of the first and second oral statements, and each parties’ replies to questions from the other party and from the Panel) to its report. Upon request of a party, specific portions of a submission designated by that party as confidential at the time of its submission will not be included in the submission attached to the Panel’s report.” back to text
712. Panel Report on Argentina — Poultry Anti-Dumping Duties, para. 7.15. back to text
713. Panel Report on US — Steel Safeguards, para. 5.3. back to text
714. Panel Report on Canada — Aircraft, para. 9.68. back to text
715. Appellate Body Report on Canada — Aircraft, para. 141 and Appellate Body Report on Brazil — Aircraft, para. 119. back to text
716. Appellate Body Report on Canada — Aircraft, paras. 145 and 147 and Appellate Body Report on Brazil — Aircraft, paras. 123 and 125. back to text
717. The United States referred to the Panel Report on Brazil — Aircraft; Panel Report on Canada — Aircraft; Panel Report on Australia — Automotive Leather II. back to text
718. Decision by the Arbitrators on EC — Bananas III (US) (Article 22.6 — EC), paras. 2.2-2.3. back to text
719. Decision by the Arbitrators on EC — Bananas III (US) (Article 22.6 — EC), para. 2.4. back to text
720. Decision by the Arbitrators on EC — Bananas III (US) (Article 22.6 — EC), para. 2.5. back to text
721. Decision by the Arbitrators on Brazil — Aircraft (Article 22.6 — Brazil), paras. 2.13-2.14. back to text
722. For more information about preliminary rulings, see Section XXXVI.C. back to text
723. Panel Report on Canada — Wheat Exports and Grain Imports, para. 6.8. back to text
724. As regards other aspects of the intervention by private counsels in WTO dispute settlement proceedings, see Section XXXVI.E below. back to text
725. Appellate Body Report on Thailand — H-Beams, para. 74. back to text
726. (footnote original) Canada’s Response to Panel Question 31 (Annex A-4). back to text
727. (footnote original) This is subject, of course, to the provisions of the last sentence of Article 18.2 of the DSU, which allow a party to panel proceedings to disclose to the public non-confidential summaries of the information contained in the written submissions of the other party, if such summaries are requested. back to text
728. (footnote original) Original Appellate Body Report on Canada — Aircraft, supra, para. 141 (emphasis added). The Appellate Body made the quoted statement in respect of appellate review proceedings. We do not see, however, why the same reasoning should not extend, by analogy, to panel proceedings. back to text
729. (footnote original) Contrary to Brazil, we do not think that Article 14 of the DSU is relevant to the issue before us. Article 14 focuses on panels and their obligations in respect of confidentiality; it does not address itself to the obligations of the parties in respect of confidentiality. back to text
730. (footnote original) The following statement by the Panel in Korea — Alcoholic Beverages supports this view: 
     We note that written submissions of the parties which contain confidential information may, in some cases, be provided to non-government advisors who are not members of an official delegation at a panel meeting. The duty of confidentiality extends to all governments that are parties to a dispute and to all such advisors regardless of whether they are designated as members of delegations and appear at a panel meeting. (Panel Report on Korea — Alcoholic Beverages, supra, para. 10.32, emphasis added) back to text
731. (footnote original) Brazil is correct in pointing out that paragraph 13 does not expressly authorize disclosure of confidential information to “other advisors”, but, in our view, it does so by implication. We stress, however, that paragraph 13 talks about “advisors” and not other members of the public, such as private parties interested in the outcome of particular panel proceedings. back to text
732. (footnote original) We note that there is nothing in the other paragraphs of this Panel’s Working Procedures to suggest that confidential information may be disclosed to non-government advisors only if those advisors are members of an official delegation to a panel meeting. back to text
733. (footnote original) It should be pointed out that Brazil did not, in these proceedings, submit any business confidential information. back to text
734. Panel Report on Brazil — Aircraft (Article 21.5 — Canada II), paras. 3.5-3.10. back to text
735. (footnote original) We recall that Brazil’s concern is with the confidentiality of its arguments and statements. Business confidential information, which might require other procedures and safeguards, is not, as already mentioned, involved in this situation.  back to text
736. (footnote original) Since Brazil has not responded to Canada’s argument that the private lawyers in question are subject to a confidentiality agreement, there are no grounds for assuming that that agreement inadequately protects confidential information. back to text
737. Panel Report on Brazil — Aircraft (Article 21.5 — Canada II), paras. 3.11-3.15. back to text
738. (footnote original) It could be argued that the Interim Report of a panel constitutes part of its “deliberations” before it is finalized and issued to the parties. back to text
739. (footnote original) See, e.g., American Bar Association, Model Rules of Professional Conduct, Rule 1.6; New York State Bar Association, Lawyer’s Code of Professional Responsibility, DR 4-101; Canadian Bar Association, Code of Professional Conduct, Chapter IV; Law Society of Upper Canada, Rules of Professional Conduct, Rule 2.03; Council of the Bars and Law Societies of the European Union, Code of Conduct for Lawyers in the European Union, Rules 2.3; Bar of England and Wales, Code of Conduct, Rules 603, 608 and 702. back to text
740. Panel Report on EC — Tariff Preferences, paras. 7.15-7.16. back to text
741. (footnote original) Communication of the European Communities to the Panel on 4 June 2003. back to text
742. Panel Report on EC — Tariff Preferences, para. 7.17. back to text
743. Panel Report on India — Autos, para. 8.15. back to text
744. Panel Report on Chile — Price Band System, para. 7.112. back to text
745. Panel Report on US — Certain EC Products, para. 7.3. back to text
746. Appellate Body Report on US — Certain EC Products, para. 81. See also para. 129. back to text
747. Panel Report on Chile — Price Band System, para. 7.112. See also para. 7.124. back to text
748. Panel Report on India — Autos, paras. 8.27-8.28. back to text
749. Panel Report on US — Steel Plate, para. 8.8. See also Panel Report on US — Softwood Lumber VI, para. 8.8. back to text
750. Panel Report on US — Softwood Lumber V, para. 8.6. See also Panel Report on Argentina — Poultry Anti-Dumping Duties. para. 8.5 and EC — Tube or Pipe Fittings, para. 8.11. back to text
751. Panel Report on US — Underwear, para. 8.3. back to text
752. Panel Report on EC — Bananas III (Article 21.5 — Ecuador), paras. 6.155-6.158. back to text
753. Panel Report on India — Patents (US), para. 5.65. back to text
754. Panel Report on India — Patents (US), para. 6.2. back to text
755. Panel Report on Guatemala — Cement I, para. 8.6. back to text
756. Panel Report on India — Quantitative Restrictions, paras. 7.5-7.7. back to text
757. Panel Report on US — Lead and Bismuth II, para. 8.1. back to text
758. Panel Report on Guatemala — Cement II, para. 9.7. back to text
759. Panel Report on US — Cotton Yarn, para. 8.5. back to text
760. Panel Report on US — Offset Act (Byrd Amendment), para. 8.6. back to text
761. Panel Report on Argentina — Poultry Anti-Dumping Duties, para. 8.7. back to text
762. Panel Report on India — Patents (US), para. 5.65. back to text
763. Panel Report on US — DRAMS, para. 7.4. See also Panel Report on US — Steel Plate, para. 7.110. back to text
764. Panel Report on US — Stainless Steel, para. 7.10. back to text
765. Panel Report on US — Hot Rolled Steel, para. 8.11. back to text
766. Panel Report on US — Hot Rolled Steel, para. 8.13. back to text
767. Panel Report on US — Line Pipe, para. 8.6. back to text
768. Panel Report on US — Steel Plate, para. 8.8. back to text
769. Panel Report on Chile — Price Band System, para. 8.3. back to text
770. Panel Report on EC — Sardines, para. 8.3. back to text
771. Panel Report on US — Countervailing Measures on Certain EC Products, para. 6.43. back to text
772. Panel Report on EC — Tariff Preferences, para. 8.3. back to text
773. Panel Report on US — Oil Country Tubular Goods Sunset Reviews, paras. 8.3-8.5. back to text
774. Panel Report on EC — Tube or Pipe Fittings, paras. 8.9 and 8.11. back to text
775. Panel Report on US — Steel Plate, para. 8.8. back to text
776. Panel Report on US — Countervailing Measures on Certain EC Products, para. 6.43. back to text
777. Panel Report on Brazil — Aircraft (Article 21.5 — Canada), para. 7.3. back to text
778. Appellate Body Report on EC — Bed Linen (Article 21.5 — India), para. 93. back to text
779. Panel Report on Australia — Automotive Leather II (Article 21.5 — US), paras. 6.31 and 6.41. back to text