|
W.2.0
Timing of an appeal. See also Rule 26 — Working schedule
(W.2.10); Rule 30 — Withdrawal (W.2.13)
back to top
W.2.0.1 EC — Sardines, para. 147
(WT/DS231/AB/R)
In addition, we believe there are circumstances that, although not
constituting “abusive practices”, would be in violation of the DSU,
and would, thus, compel us to disallow the conditional withdrawal of a
notice of appeal as well as the filing of a replacement notice. For
example, if the conditional withdrawal or the filing of new notice were
to take place after the 60-day deadline in Article 16.4 of the DSU for
adoption of panel reports, this would effectively circumvent the
requirement to file appeals within 60 days of circulation of panel
reports. In such circumstances, we would reject the conditional
withdrawal and the new notice of appeal.
W.2.0.2 EC — Export Subsidies on Sugar,
para. 5
(WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R)
In a communication dated 2 December 2004, Australia, Brazil, the
European Communities, and Thailand informed the Chair of the Dispute
Settlement Body (the “DSB”) of a “procedural agreement”
concluded between these four parties regarding the 60-day period
provided for in Article 16.4 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (the “DSU”) for
the adoption or appeal of the Panel Reports. The parties requested the
DSB to postpone the consideration of the Panel Reports and to agree to
the extension of the time period in Article 16.4 of the DSU until 31
January 2005. At a meeting held on 13 December 2004, the DSB took note
of these requests and agreed that it would adopt the Panel Reports on or
before 31 January 2005, unless the DSB decided by consensus not to do
so, or a party notified the DSB of its decision to appeal.
W.2.0.3 Brazil — Retreaded Tyres, para. 6
(WT/DS332/AB/R)
At its meeting on 10 August 2007, the DSB agreed to a joint request
by Brazil and the European Communities to extend the time period for
adoption of the Panel Report until no later than 20 September 2007. …
W.2.1 General back to top
W.2.1.1 US — FSC, para. 166
(WT/DS108/AB/R)
… The procedural rules of WTO dispute settlement are designed to
promote, not the development of litigation techniques, but simply the
fair, prompt and effective resolution of trade disputes.
W.2.1.2 EC — Sardines, para. 139
(WT/DS231/AB/R)
… we emphasize that the Working Procedures must not be
interpreted in a way that could undermine the effectiveness of the
dispute settlement system, for they have been drawn up pursuant to the
DSU and as a means of ensuring that the dispute settlement mechanism
achieves the aim of securing a positive solution to a dispute. …
W.2.2 Rule 3.1 — Decision-making back to top
W.2.2.1 EC — Asbestos, para. 51
(WT/DS135/AB/R)
… after consultations among all seven Members of the Appellate
Body, we adopted, pursuant to Rule 16(1) of the Working Procedures,
an additional procedure, for the purposes of this appeal only, to
deal with written submissions received from persons other than the
parties and third parties to this dispute (the “Additional Procedure”).
…
W.2.3 Rule 3.2 — Concurring opinion — Article 17.11 of the DSU
back to top
W.2.3.1 EC — Asbestos, para. 149
(WT/DS135/AB/R)
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.
W.2.3.2 EC — Asbestos, para. 150
(WT/DS135/AB/R)
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.
W.2.3.3 EC — Asbestos, para. 154
(WT/DS135/AB/R)
…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.
W.2.3.4 US — Continued Zeroing,
paras. 312-313
(WT/DS350/AB/R)
There is little point in further rehearsing the fine points of these
interpretations. In my view, there is every reason to survey this debate
with humility. There are arguments of substance made on both sides; but
one issue is unavoidable. In matters of adjudication, there must be an
end to every great debate. The Appellate Body exists to clarify the
meaning of the covered agreements. On the question of zeroing it has
spoken definitively. Its decisions have been adopted by the DSB. The
membership of the WTO is entitled to rely upon these outcomes. Whatever
the difficulty of interpreting the meaning of “dumping”, it cannot
bear a meaning that is both exporter-specific and transaction-specific.
We have sought to elucidate the notion of permissibility in the second
sentence of Article 17(6)(ii). The range of meanings that may constitute
a permissible interpretation does not encompass meanings of such wide
variability, and even contradiction, so as to accommodate the two rival
interpretations. One must prevail. The Appellate Body has decided the
matter. At a point in every debate, there comes a time when it is more
important for the system of dispute resolution to have a definitive
outcome, than further to pick over the entrails of battles past. With
respect to zeroing, that time has come.
For these reasons, I concur in the decision reached by the Division
in section E that the United States acted inconsistently with Article
9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT
1994 by using simple zeroing in periodic reviews.
W.2.3A Rule 3.2 — Separate opinion — Article 17.11 of the DSU
back to top
W.2.3A.1 US — Upland Cotton, para. 631
(WT/DS267/AB/R)
One Member of the Division hearing this appeal wishes to set out a
brief separate opinion. At the outset, I would like to make it
absolutely clear that I agree with the findings and conclusions and
reasoning set out in all preceding Sections of this Report, but one,
namely, Section C above, which relates to Article 10.2 of the Agreement
on Agriculture. It is only on the interpretation of Article 10.2
that I must respectfully disagree.
W.2.3A.2 US — Upland Cotton, para. 641 and footnote 952
(WT/DS267/AB/R)
I also recognize that this interpretation of Article 10.2 has
consequential results for some of the other claims on appeal brought by
both the United States and Brazil in connection with the United States’
export credit guarantee programmes. As to the other Sections of this
Report dealing with export credit guarantees, I agree that the legal
interpretation and analyses contained therein follow logically from the
view of my colleagues on the Division with respect to Article 10.2, as
set forth in paragraphs 605 through 630 of this Report.952
W.2.3A.3 US — Zeroing (EC) (Article 21.5
— EC), para. 259
(WT/DS294/AB/RW, WT/DS294/AB/RW/Corr.1)
One Member of the Division wishes to set out a separate opinion
concerning the United States’ appeal of the Panel’s finding that the
2004-2005 administrative reviews in Cases 1 and 6 fell within its
terms of reference under Article 21.5 of the DSU by virtue of their
close nexus, in terms of nature, effects, and timing, with the declared
measures taken to comply, and the recommendations and rulings of the DSB.
W.2.3A.4 US — Zeroing (EC) (Article 21.5
— EC), para. 270
(WT/DS294/AB/RW, WT/DS294/AB/RW/Corr.1)
Accordingly, I do not see how it can be concluded, in the light of
the Appellate Body Reports in US — Softwood Lumber IV (Article 21.5
— Canada) and US — Stainless Steel (Mexico), that the
administrative reviews in Cases 1 and 6 (including the rescission of the
2005-2006 administrative review in Case 1) have a close nexus with the
recommendations and rulings of the DSB or the declared measures “taken
to comply”, and fall within the Panel’s terms of reference. Since I
do not consider that the scope of these Article 21.5 proceedings can
properly be expanded to include compliance obligations with respect to
measures for which there were no recommendations and rulings by the DSB,
I do not consider it appropriate to make further findings with respect
to Cases 1 and 6.
W.2.4 Rule 8 — Rules of conduct — Confidentiality. See
also Business Confidential Information (B.4); Confidentiality
(C.6) back to top
W.2.4.1 Brazil — Aircraft, para. 124; Canada
— Aircraft, para.
146
(WT/DS46/AB/R, WT/DS70/AB/R)
… Members of the Appellate Body and its staff are covered by
Article VII:1 of the Rules of Conduct, which provides:
Each covered person shall at all times maintain the confidentiality
of dispute settlement deliberations and proceedings together with any
information identified by a party as confidential. (emphasis added)
W.2.5 Rule 13 — Replacement of Appellate Body Member on Division.
See also Working Procedures for Appellate Review, Rule 16 — Process (W.2.6) back to top
W.2.5.1 US — Lead and Bismuth II, para. 8
(WT/DS138/AB/R)
On 19 March 2000, Mr Christopher Beeby, a Member of the Division
hearing this appeal, passed away. On 20 March 2000, the Appellate Body,
pursuant to Rule 13 of the Working Procedures, selected Mr Julio
Lacarte-Muró to replace Mr Beeby. …
W.2.5.2 US — Offset Act (Byrd Amendment), para. 8
(WT/DS217/AB/R, WT/DS234/AB/R)
In a letter dated 22 November 2002, the Director of the Appellate
Body Secretariat informed the participants and third participants that,
in accordance with Rule 13 of the Working Procedures, the
Appellate Body had selected Mr Giorgio Sacerdoti to replace Mr A.V.
Ganesan as Presiding Member of the Division hearing this appeal. The
latter was prevented from continuing to serve on the Division for
serious personal reasons.
W.2.5.3 US — Softwood Lumber IV, para. 10
(WT/DS257/AB/R)
In a letter dated 12 November 2003, the Director of the Appellate
Body Secretariat informed the participants and third participants that,
in accordance with Rule 13 of the Working Procedures, the
Appellate Body had selected Mr Giorgio Sacerdoti to replace Mr A.V.
Ganesan as a Member of the Division hearing this appeal because the
latter was prevented from continuing to serve on the Division for
serious personal reasons.
W.2.5A Rule 15 — Transition back to top
W.2.5A.1 US — Shrimp (Thailand) / US
— Customs Bond Directive,
para. 16
(WT/DS343/AB/R, WT/DS345/AB/R)
In a letter dated 21 April 2008, the participants were informed that
Appellate Body Member, Mr A.V. Ganesan, had been selected, on the basis
of rotation, to serve on the Division hearing these appeals, and that,
in accordance with Rule 15 of the Working Procedures, the
Appellate Body had notified the Chairman of the DSB of its decision to
authorize Mr Ganesan to complete the disposition of the appeals even
though his second term as Appellate Body Member was to expire before the
completion of the appellate proceedings. …
W.2.5A.2 US — Continued Suspension / Canada
— Continued
Suspension, para. 27
(WT/DS320/AB/R, WT/DS321/AB/R)
… The participants were further informed that Appellate Body
Member, Mr Georges Abi-Saab, had been selected, on the basis of
rotation, to serve on the Division hearing these appeals, and that, in
accordance with Rule 15 of the Working Procedures, the Appellate
Body had notified the Chairman of the DSB of its decision to authorize
Mr Abi-Saab to complete the disposition of the appeals even though his
second term as Appellate Body Member was due to expire before the
completion of the appellate proceedings.
W.2.6 Rule 16 — Process.
See also Amicus Curiae Briefs,
Additional procedure (A.2.3); Working Procedures for Appellate Review,
Rule 26 — Working schedule (W.2.10); Working Procedures for Appellate
Review, Rule 27 — Oral hearing (W.2.11)
back to top
W.2.6.1 EC — Bananas III, para. 10
(WT/DS27/AB/R)
On 15 July 1997, the Appellate Body notified the participants and
third participants in this appeal of its ruling that the request by
Saint Lucia would be allowed. The Appellate Body said the following:
… we can find nothing in the Marrakesh Agreement Establishing
the World Trade Organization (the “WTO Agreement”), the DSU or
the Working Procedures, nor in customary international law or the
prevailing practice of international tribunals, which prevents a WTO
Member from determining the composition of its delegation in Appellate
Body proceedings. Having carefully considered the request made by the
government of Saint Lucia, and the responses dated 14 July 1997 received
from Canada; Jamaica; Ecuador, Guatemala, Honduras, Mexico and the
United States, we rule that it is for a WTO Member to decide who should
represent it as members of its delegation in an oral hearing of the
Appellate Body.
W.2.6.2 Guatemala — Cement I, para. 4
(WT/DS60/AB/R)
… On 14 August 1998, Guatemala filed an appellant’s submission
drafted in Spanish. On 31 August 1998, Mexico filed an appellee’s
submission also drafted in Spanish. In order to ensure that the third
participant would have time to prepare its submission after receiving an
English version of the appellant’s submission, the Appellate Body
granted the United States additional time to file its third participant’s
submission. The United States filed that submission on 14 September
1998. By our ruling of 31 August 1998, we declined Mexico’s request
that its appellee’s submission be withheld from Guatemala and the
United States until the end of the time-period allowed to the United
States to file its third participant’s submission. …
W.2.6.3 Brazil — Aircraft, para. 9; mutatis mutandis
(WT/DS46/AB/R)
… by joint letter of 27 May 1999, Brazil and Canada requested that
the Appellate Body apply, mutatis mutandis, the Procedures
Governing Business Confidential Information adopted by the Panel in this
case. A preliminary hearing on this issue was held on 10 June 1999, with
this Division sitting jointly with the Division of the Appellate Body
hearing the appeal in Canada — Measures Affecting the Export of
Civilian Aircraft (“Canada — Aircraft”), and a
preliminary ruling was issued by this Division on 11 June 1999.
W.2.6.4 Brazil — Aircraft, para. 104; mutatis mutandis
(WT/DS46/AB/R)
By letter of 31 May 1999, we invited the participants to file legal
memoranda in support of their request, and offered each an opportunity
to respond to the legal memorandum submitted by the other. The third
participants were also given an opportunity to file legal memoranda.
Brazil and Canada submitted legal memoranda on 2 June 1999. On 4 June
1999, the third participants, the European Communities and the United
States, also filed legal memoranda. On the same date, Brazil and Canada
each filed a written response to the memorandum previously submitted by
the other on 2 June 1999. A preliminary hearing on this issue was held
on 10 June 1999, with this Division sitting jointly with the Division of
the Appellate Body hearing the appeal in Canada — Aircraft.
W.2.6.5 Brazil — Aircraft, para. 119; Canada
— Aircraft,
para. 141
(WT/DS46/AB/R, WT/DS70/AB/R)
In our preliminary ruling of 11 June 1999, we concluded that it is
not necessary, under all the circumstances of this case, to adopt additional
procedures to protect business confidential information in these
appellate proceedings. …
W.2.6.6 EC — Asbestos, para. 51
(WT/DS135/AB/R)
… after consultations among all seven Members of the Appellate
Body, we adopted, pursuant to Rule 16(1) of the Working Procedures,
an additional procedure, for the purposes of this appeal only, to
deal with written submissions received from persons other than the
parties and third parties to this dispute (the “Additional Procedure”).
The Additional Procedure was communicated to the parties and third
parties. … the Chairman of the Appellate Body informed the
Chairman of the Dispute Settlement Body, in writing, of the Additional
Procedure adopted, and this letter was circulated, for information, as a
dispute settlement document to the Members of the WTO. …
W.2.6.7 US — FSC (Article 21.5
— EC), para. 8
(WT/DS108/AB/RW)
By letter of 22 October 2001, the United States requested the
Appellate Body pursuant to Rule 16(2) of the Working Procedures to
modify the timetable set out in the Working Schedule for Appeal for the
filing of the appellant’s submissions by the United States. The United
States stated that suspected bioterrorist attacks had compromised the
ability of the United States to conduct the necessary consultations with
the United States Congress with regard to this appeal. According to the
United States, the effect of these circumstances was such that adhering
to the original timetable would result in manifest unfairness to the
United States. In its letter of 23 October 2001, the European
Communities did not object to the request made by the United States, but
requested that, in order to preserve the balance of procedural rights
afforded to the participants in this appeal, the Appellate Body extend
the deadline for the filing of the European Communities’ appellee’s
submission by 14 days. In a letter dated 23 October 2001, the Division
of the Appellate Body hearing the appeal accepted that the circumstances
identified by the United States constituted “exceptional circumstances”
within the meaning of Rule 16(2) of the Working Procedures and
that maintaining the deadline for submission of the appellants’
submission would result in “manifest unfairness” to the United
States. Accordingly, the Division agreed to modify the Working Schedule
for this appeal to allow the United States an additional seven days for
the filing of its appellant’s submission. In the same letter, the
Division also extended by seven days the deadlines for the filing of the
other appellant’s submissions, the appellee’s submission, and the
third participants’ submissions.
W.2.6.8 US — Lead and Bismuth II, para. 8
(WT/DS138/AB/R)
On 19 March 2000, Mr Christopher Beeby, a Member of the Division
hearing this appeal, passed away. On 20 March 2000, the Appellate Body,
pursuant to Rule 13 of the Working Procedures, selected Mr Julio
Lacarte-Muró to replace Mr Beeby. In view of these extraordinary
circumstances, the newly constituted Division decided, pursuant to Rule
16(1) of the Working Procedures, and in the interests of fairness
and orderly procedure in the conduct of this appeal, to hold another
oral hearing on 4 April 2000. On that date, the participants and third
participants presented oral arguments and responded to questions put to
them by the Members of the newly constituted Division. Due to these same
extraordinary circumstances, the participants in this appeal, the
European Communities and the United States, agreed to a two week
extension of the 90-day time limit for the consideration of this appeal,
and thus agreed that this Report should be circulated no later than 10
May 2000.
W.2.6.9 US — Countervailing Measures on Certain EC Products,
para. 52
(WT/DS212/AB/R)
On 10 September 2002, the European Communities the filed a Request
for a Preliminary Ruling (the “Request”), alleging that the United
States’ Notice of Appeal “is manifestly not in conformity with Rule
20(2)(d) of the Working Procedures for Appellate Review”
because it “fails to identify the findings or the legal
interpretations that it considers to be erroneous”. The European
Communities argued that “[a]s a consequence, the European Communities
is unable to prepare its response to the appeal.” The European
Communities asked us to “order the United States, pursuant to Rule
16(1) of the Working Procedures, immediately to file further and better
particulars to its notice of appeal identifying the precise legal
findings and legal interpretations that it is challenging”.
W.2.6.10 US — Countervailing Measures on Certain EC Products,
para. 55
(WT/DS212/AB/R)
On 12 September 2002, we invited the United States “to identify the
precise findings and interpretations of the Panel which are alleged, in
the Notice of Appeal filed on 9 September 2002, to constitute errors”.
The United States responded by letter dated 13 September 2002. In an
attachment to that letter, the United States quoted in full the
paragraphs of the Panel Report to which it had merely referred by number
in the Notice of Appeal. The United States also provided information as
to legal errors allegedly committed by the Panel.
W.2.6.11 US — Softwood Lumber VI (Article 21.5
— Canada),
para. 13 and footnote 25
(WT/DS277/AB/RW, WT/DS277/AB/RW/Corr.1)
On 18 January 2006, the Director of the Appellate Body Secretariat
received a letter from the United States requesting to change the date
scheduled for the oral hearing in this appeal — 23 February 2006 — on the grounds that “lead counsel for the United States [was] not
available on that date, due to a long-established prior commitment”.
Neither Canada nor the third participants objected to the United States’
request.25 By letter dated 26 January 2006, the Division informed the
participants and the third participants that it had decided to change
the date of the oral hearing to 24 February 2006.
W.2.6.12 US — Stainless Steel (Mexico), para. 164
(WT/DS344/AB/R)
… The late filing of a participant’s submission could have
implications for the other participants. Compliance with the procedural
requirements relating to the timely filing of submissions is a matter of
fairness and orderly procedure, which are referred to in Rule 16(1) of
the Working Procedures. …
W.2.6.13 US — Shrimp (Thailand) / US
— Customs Bond Directive,
para. 16
(WT/DS343/AB/R, WT/DS345/AB/R)
In a letter dated 21 April 2008, … [t]he Division further noted
that, in the interests of “fairness and orderly procedure”, as
referred to in Rule16(1) of the Working Procedures, and in
agreement with the participants, the appellate proceedings in respect of
the appeals by both Thailand and India would be consolidated due to the
substantial overlap in the content of the disputes. A single Division
would hear and decide both appeals, and a single oral hearing would be
held by the Division. Further to a request by the United States, and in
consultation with the participants, the Division extended, pursuant to
Rule 16(2) of the Working Procedures, the time periods for the
filing of the other appellant’s submissions by the United States, as
well as for the filing of appellees’ and third participants’
submissions. The Division also invited all third parties in US — Shrimp (Thailand) and US
— Customs Bonds Directive to
attend the single oral hearing in the consolidated appellate
proceedings, noting, however, the understanding that, in their written
submissions and oral statements, the third participants would address
only the issues appealed in the dispute(s) to which they were third
parties in the panel proceedings.
W.2.6.14 US — Shrimp (Thailand) / US
— Customs Bond Directive, paras. 17-18
(WT/DS343/AB/R, WT/DS345/AB/R)
By letter dated 22 April 2008, India requested the Division to extend
the time period for filing its appellant’s submission by one working
day, that is, from 24 April to 25 April 2008, pursuant to Rule 16(2) of
the Working Procedures, due to certain unforeseen developments.
On the same day, the Division invited the participants and third
participants to comment on India’s request by 5 p.m. on 23 April 2008.
Two comments were received: Thailand did not object to India’s
request; and the United States submitted that it would accept India’s
request provided that the filing dates applicable to the United States’
submissions would be adjusted accordingly.
Having carefully considered India’s request and the views expressed
by the United States and Thailand, the Division granted India time until
1 p.m., Geneva time, on 25 April 2008 to file its appellant’s
submission. Further, in view of the submission made by the United
States, the Division also granted the United States time until 1 p.m.,
Geneva time, on 20 May 2008 to file its appellee’s submissions. The
same extension was also granted to India and to Thailand to file their
appellee’s submissions and to those third participants wishing to file
a submission pursuant to Rule 24(1) or a notification pursuant to Rule
24(2) of the Working Procedures.
W.2.6.15 US — Continued Suspension / Canada
— Continued
Suspension, para. 27 and footnote 62
(WT/DS320/AB/R, WT/DS321/AB/R)
In a letter dated 30 May 2008, the Division noted that, in the
interests of “fairness and orderly procedure”, as referred to in
Rule 16(1) of the Working Procedures, and in agreement with the
participants, the appellate proceedings in respect of the European
Communities’ appeal from the Panel Reports in US — Continued
Suspension and Canada — Continued Suspension would be
consolidated due to the substantial overlap in the content of the
disputes. A single Division would hear and decide the appeals, and a
single oral hearing would be held by the Division.62 …
W.2.6.16 China — Auto Parts, para. 10
(WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R)
On 19 September 2008, the Presiding Member of the Division hearing
the appeal in this dispute received a letter from the United States
requesting, pursuant to Rule 16(2) of the Working Procedures, to
change the dates scheduled for the oral hearing in this appeal from 27-28
October 2008 to 28-29 October 2008. On the same day, the Division
hearing this appeal offered Canada, China, the European Communities and
the third participants the opportunity, if they so chose, to comment on
the United States’ request. None of the participants or third
participants objected to this request by the United States. By letter
dated 26 September 2008, the Division informed the participants and the
third participants that it had decided to change the starting time of
the oral hearing in this appeal from the morning to the afternoon of 27
October 2008.
W.2.6.17 China — Auto Parts, para. 12
(WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R)
On 10 October 2008, the United States requested the Appellate Body to
issue three separate reports in this appeal, setting out its conclusions
and recommendations separately for each Panel Report under appeal. The
other participants and the third participants were afforded an
opportunity to comment on this request at the oral hearing. They made no
objection to the United States’ request.
W.2.6A Rule 18 — Documents back to top
W.2.6A.1 Mexico — Taxes on Soft Drinks,
para. 7
(WT/DS308/AB/R)
By letter dated 5 January 2006, Mexico requested authorization to
correct certain clerical errors in its appellant’s submission pursuant
to Rule 18(5) of the Working Procedures. … By letter
dated 16 January 2006, the Division authorized Mexico to correct the
clerical errors in its appellant’s submission but emphasized, however,
that it had not been requested, and did not make, a finding “as to
whether all of the corrections requested by Mexico are ‘clerical’
within the meaning of Rule 18(5) of the Working Procedures”.
W.2.6A.2 US — Softwood Lumber VI (Article 21.5
— Canada),
para. 15 and footnote 28
(WT/DS277/AB/RW, WT/DS277/AB/RW/Corr.1)
By letter dated 8 March 2006, Canada requested authorization from the
Division to correct certain clerical errors in its appellant’s
submission, although the deadline for such a request had passed. On 9
March 2006, the Division invited the United States and the third
participants to comment in writing on Canada’s request.28 No
objections were received. By letter dated 17 March 2006, the Division
granted the request because: the correct information was, in any event,
set forth in one of the exhibits submitted by Canada to the Panel; the
matter had been discussed at the oral hearing; and the United States did
not object to the request.
W.2.6A.3 EC — Selected Customs Matters, para. 13
(WT/DS315/AB/R)
By letter dated 15 September 2006, Japan requested authorization from
the Appellate Body Division hearing the appeal to correct a “clerical
error” in its third participant’s submission, pursuant to Rule 18(5)
of the Working Procedures. On 18 September 2006, the Division
invited all participants and third participants to comment on Japan’s
request. None of the participants or third participants objected to
Japan’s request. On 20 September 2006, the Division authorized Japan,
pursuant to Rule 18(5), to correct the clerical error in its third
participant’s submission.
W.2.6A.4 US — Zeroing (Japan), para. 5
(WT/DS322/AB/R)
By letter dated 20 October 2006, Japan requested authorization from
the Appellate Body Division hearing the appeal to correct a clerical
error in its appellant’s submission, pursuant to Rule 18(5) of the Working
Procedures. On 23 October 2006, the Division invited, pursuant to
Rule 18(5), all participants and third participants to comment on Japan’s
request. No objection to Japan’s request was received and, on 25
October 2006, the Division authorized Japan to correct the clerical
error in its appellant’s submission.
W.2.6A.5 Japan — DRAMs (Korea), para. 12
(WT/DS336/AB/R, WT/DS336/AB/R/Corr.1)
By letter dated 12 September 2007, Japan requested authorization from
the Appellate Body Division hearing the appeal to correct certain “clerical
errors” in its appellant’s submission, pursuant to Rule 18(5) of the
Working Procedures. On 14 September 2007, the Division invited
all participants and third participants to comment on Japan’s request.
None of the participants or third participants objected to Japan’s
request. On 18 September 2007, the Division authorized Japan to correct
the “clerical errors” in its appellant’s submission.
W.2.6A.6 US — Stainless Steel (Mexico), para. 5
(WT/DS344/AB/R)
By letter dated 8 February 2008, Mexico requested authorization from
the Appellate Body to correct a clerical error in its appellant’s
submission, and two clerical errors in the executive summary of that
submission, pursuant to Rule 18(5) of the Working Procedures. On
12 February 2008, the Appellate Body Division hearing the appeal invited
the United States and the third participants to comment on Mexico’s
request. No objections to Mexico’s request were received and, on 14
February 2008, the Division authorized Mexico to correct the identified
clerical errors.
W.2.6A.7 US — Stainless Steel (Mexico), para. 7
(WT/DS344/AB/R)
During the course of the appeal, the Division received a request
pertaining to a procedural matter. By letter dated 3 March 2008, the
European Communities requested the Appellate Body to clarify whether the
United States’ appellee’s submission was considered to be filed with
the Appellate Body within the meaning of Rule 18(1) of the Working
Procedures. The European Communities pointed out that the Working
Schedule for this appeal, communicated to the parties on 1 February
2008, provided for the United States’ appellee’s submission to be
filed by Monday, 25 February 2008, at 5.00 p.m. However, the electronic
version of the United States’ appellee’s submission was sent to the
Appellate Body by e-mail only at 7.56 p.m., and the European Communities
presumes that printed copies were delivered to the Appellate Body after
that time. As a result, the United States “had significant time to
examine the filings of the Third Participants and eventually adjust its
own submission prior to filing”. At the oral hearing, the European
Communities reiterated its request that the Appellate Body clarify
whether it considers the United States’ appellee’s submission to be
filed within the meaning of Rule 18(1) of the Working Procedures,
and what the consequences are, if any, of a late filing.
W.2.6A.8 US — Stainless Steel (Mexico),
paras. 163-164
(WT/DS344/AB/R)
In a letter dated 3 March 2008, the European Communities complained
that the United States’ appellee’s submission was submitted almost
three hours after the time-limit set out by the Appellate Body in the
Working Schedule for this appeal, communicated to the participants and
third participants on 1 February 2008. The European Communities submits
that the United States “had significant time to examine the filings of
the Third Participants and eventually adjust its own submission prior to
filing”. At the oral hearing, the European Communities reiterated its
request that the Appellate Body clarify whether it considers the United
States’ appellee’s submission to be filed within the meaning of Rule
18(1) of the Working Procedures, and what the consequences are,
if any, of a late filing.
We share the concerns raised by the European Communities. Compliance
with established time periods by all participants regarding the filing
of submissions is an important element of due process of law. The
Appellate Body clarified in India — Patents (US) that due
process requirements are implicit in the DSU. This is particularly
important, given that, according to Rules 22(1) and 24(1) of the Working
Procedures, the appellee’s submission(s) and the third participant’s
submission( s) are filed contemporaneously. The late filing of a
participant’s submission could have implications for the other
participants. Compliance with the procedural requirements relating to
the timely filing of submissions is a matter of fairness and orderly
procedure, which are referred to in Rule 16(1) of the Working
Procedures. In the circumstances of this appeal, we nevertheless
consider the United States’ appellee’s submission as filed.
W.2.6A.9 US — Shrimp (Thailand) / US
— Customs Bond Directive,
para. 20
(WT/DS343/AB/R, WT/DS345/AB/R)
By letter dated 29 April 2008, India requested authorization from the
Division to correct certain “clerical errors” in its appellant’s
submission, pursuant to Rule 18(5) of the Working Procedures. On
30 April 2008, the Division invited all participants and third
participants to comment on India’s request. None of the participants
or third participants objected to India’s request. On 7 May 2008, the
Division authorized India to correct the “clerical errors” in its
appellant’s submission.
W.2.6A.10 US — Continued Suspension / Canada
— Continued
Suspension, para. 30 and footnote 72
(WT/DS320/AB/R, WT/DS321/AB/R)
On 27 June 2008, the European Communities sent a letter to the
Appellate Body Secretariat noting that the United States and Canada had
filed their appellee’s submissions after the 5.00 p.m. time-limit set
out by the Division in the Working Schedule drawn up for these appeals.
The European Communities referred to Rule 18(1) of the Working
Procedures and requested that the Division “inform the parties of
the treatment that should be accorded to these documents”. The United
States and Canada responded in separate letters and requested the
Division to reject the European Communities’ request.72 At the oral
hearing, the Division gave a ruling on the European Communities’
request regarding the late filing of the appellee’s submission by the
United States and Canada. The Division emphasized the importance of all
participants adhering strictly to the time-limits set out in the Working
Schedule, given the time constraints imposed upon both the participants
and the Appellate Body Members in these proceedings. It also noted that
the failure to strictly observe such time-limits can have an impact upon
the fairness and the orderly conduct of the proceedings. However, having
thoroughly examined the matter, and in the light of the particular
time-limits concerned and potential prejudice that might be involved,
the Division decided nevertheless to consider the appellees’
submissions filed by the United States and Canada.
W.2.6A.11 China — Auto Parts, para. 9
(WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R)
By letter dated 17 September 2008, China requested authorization from
the Appellate Body to correct two clerical errors in its Notice of
Appeal, pursuant to Rule 18(5) of the Working Procedures. On 17
September 2008, the Appellate Body Division hearing the appeal invited
the European Communities, the United States, Canada, and the third
participants, to comment on China’s request. No objections to China’s
request were received and, on 19 September 2008, the Division authorized
China to correct the clerical errors in its Notice of Appeal.
W.2.7 Rule 20 — Notice of Appeal back to top
W.2.7.1 GENERAL
W.2.7.1.1 US — Countervailing Measures on Certain EC Products,
para. 62
(WT/DS212/AB/R)
… [we] have underscored the important balance that must be
maintained between the right of Members to exercise the right of appeal
meaningfully and effectively, and the right of appellees to receive
notice through the Notice of Appeal of the findings under appeal, so
that they may exercise their right of defence effectively. Hence, we
disagree with the contention of the United States here that the Notice
of Appeal “serves a limited purpose” as “simply a formal trigger
for initiating the appeal”. Indeed, if this were the only objective of
the notice, our Working Procedures would have included only the
first paragraph of Rule 20, which refers to commencement of an appeal
through written notification to the Dispute Settlement Body and
Appellate Body Secretariat. However, Rule 20 also prescribes additional
requirements for commencing an appeal; it provides that the Notice of
Appeal must include “a brief statement of the nature of the appeal,
including the allegations of errors in the issues of law covered in the
panel report and legal interpretations developed by the panel”. The
notification under Rule 20(1) serves as the “trigger” to which the
United States refers. The additional requirements under Rule 20(2) serve
to ensure that the appellee also receives notice, albeit brief, of the
“nature of the appeal” and the “allegations of errors” by the
panel.
W.2.7.1.2 US — Offset Act (Byrd Amendment), para. 200
(WT/DS217/AB/R, WT/DS234/AB/R)
… the Notice of Appeal “serve[s] to ensure that the appellee also
receives notice, albeit brief, of the ‘nature of the appeal’ and the
‘allegations of errors’ by the panel”. Generic statements such as
that relied upon by the United States cannot serve to give the appellees
adequate notice that they will be required to defend against a claim
that the Panel exceeded its terms of reference. This is particularly so
for procedural errors; it can be especially difficult to discern a claim
of procedural error by a panel from general references to panel findings
or from extracts of a panel report, because allegations of procedural
error by a panel may not necessarily be raised until the appellate
stage.
W.2.7.1.3 US — Offset Act (Byrd Amendment), para. 208
(WT/DS217/AB/R, WT/DS234/AB/R)
… we have said, “[a]n objection to jurisdiction should be raised
as early as possible” and it would be preferable, in the interests of
due process, for the appellant to raise such issues in the Notice of
Appeal, so that appellees will be aware that this claim will be advanced
on appeal. However, in our view, the issue of a panel’s jurisdiction
is so fundamental that it is appropriate to consider claims that a panel
has exceeded its jurisdiction even if such claims were not raised in the
Notice of Appeal.
W.2.7.2 CONTENT. See also Claims and Arguments
(C.1)
W.2.7.2.1 US — Shrimp, para. 95
(WT/DS58/AB/R)
… The Working Procedures for Appellate Review enjoin the
appellant to be brief in its notice of appeal in setting out “the
nature of the appeal, including the allegations of errors”. We believe
that, in principle, the “nature of the appeal” and “the
allegations of errors” are sufficiently set out where the notice of
appeal adequately identifies the findings or legal interpretations of
the Panel which are being appealed as erroneous. The notice of appeal is
not expected to contain the reasons why the appellant regards those
findings or interpretations as erroneous. The notice of appeal is not
designed to be a summary or outline of the arguments to be made by the
appellant. The legal arguments in support of the allegations of error
are, of course, to be set out and developed in the appellant’s
submission.
W.2.7.2.2 Chile — Price Band System, para. 182
(WT/DS207/AB/R, WT/DS207/AB/R/Corr.1)
In our view, this distinction between claims and legal arguments
under Article 6.2 of the DSU is also relevant to the distinction between
“allegations of error” and legal arguments as contemplated by Rule
20 of the Working Procedures. Bearing this distinction in mind,
we do not agree with Argentina that Chile’s arguments regarding
the order of analysis chosen by the Panel amount to a separate “allegation
of error” that Chile should have — or could have — included in its Notice of Appeal. In fact, we do not see, nor has
Argentina explained, what separate “allegation of error”
could have been made, or what legal basis for such “allegation of
error” there could have been. Rather than making a separate “allegation
of error”, Chile has, in our view, simply set out a legal argument in
support of the issues it raised on appeal relating to Article 4.2 of the
Agreement on Agriculture and Article II:1(b) of the GATT 1994.
W.2.7.3 SUFFICIENCY OF NOTICE OF APPEAL
W.2.7.3.1 EC — Bananas III, para. 152
(WT/DS27/AB/R)
In our view, the claims of error by the European Communities set out
in paragraphs (c) and (d) of the Notice of Appeal do not cover the Panel’s
finding in paragraph 7.93 of the Panel Reports. The finding in that
paragraph explicitly deals with Ecuador’s right to invoke Article
XIII:2 or XIII:4 of the GATT 1994, given that Ecuador acceded to the WTO
after the WTO Agreement entered into force and after the
tariff quota for the BFA countries had been negotiated and inscribed in
the EC Schedule to the GATT 1994. There is no specific mention of this
Panel finding in either the Notice of Appeal or in the main arguments of
the appellant’s submission by the European Communities. Therefore,
Ecuador had no notice that the European Communities was appealing this
finding. For these reasons, we conclude that the Panel’s finding in
paragraph 7.93 of the Panel Reports should be excluded from the scope of
this appeal.
W.2.7.3.2 US — Countervailing Measures on Certain EC Products,
para. 70
(WT/DS212/AB/R)
We observe that, in coming to these conclusions, we have before us a
rather unusual example of the “Conclusions and Recommendations”
section of a panel report. In most panel reports, the “Conclusions and
Recommendations” section is relatively brief, setting out findings in
summary fashion. Detailed legal interpretations and reasoning upon which
panels rely are usually found only in the “Findings” sections of
panel reports. In this case, however, the Panel’s “Conclusions and
Recommendations” are more detailed than usual. Paragraphs 8.1(a)-8.1(d)
of the Panel Report include, not only the Panel’s findings, but also
certain of the reasons leading to those findings. Hence, in this case,
it is possible, by reading the “Conclusions and Recommendations”
section from the Panel Report, to discern alleged errors of law appealed
by the United States. We emphasize, however, that generally, a Notice of
Appeal that refers simply to the paragraph numbers found in the “Conclusions
and Recommendations” section of a panel report, or that quotes them in
full, will be insufficient to provide adequate notice of the allegations
of error on appeal, and, hence, will fall short of the requirements set
out in Rule 20(2)(d) of the Working Procedures.
W.2.7.3.3 US — Upland Cotton, para. 495
(WT/DS267/AB/R)
We acknowledge that the wording of paragraph 10 of the United States’
Notice of Appeal (and, in particular, the use of the words “for
example”) suggests that the findings listed in this paragraph are
simply examples of findings challenged in connection with Article
12.7 of the DSU, and that the United States’ claim of error under
Article 12.7 extends to other Panel findings. In other words, paragraph
10 purports to provide an illustrative rather than exhaustive list of
the findings that the United States intends to challenge under Article
12.7 of the DSU. However, the fact that paragraph 10 purports to provide
an illustrative list is not conclusive as to whether the Notice of
Appeal contains a sufficient reference to the Panel’s findings
described in paragraph 493 above for us to conclude that these findings
are included in the United States’ appeal. The significance of terms
such as “for example” is likely to depend on the particular claim in
question and the particular context in which the term is used in a given
appeal. In our view, the United States’ Notice of Appeal did not
provide adequate notice to Brazil, as contemplated by Rule 20(2) of the Working
Procedures for Appellate Review (the “Working Procedures”),
that the United States intended to make a claim of error under Article
12.7 of the DSU with respect to the Panel’s findings described in
paragraph 493 above. We therefore decline to rule on these findings in
connection with Article 12.7 of the DSU.
W.2.7.3.4 EC — Export Subsidies on Sugar, para. 344
(WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R)
In its Notice of Appeal, the European Communities “seeks review”
of six “conclusion[ s]” and “related legal findings and
interpretations” set out in certain specified paragraphs of the Panel
Reports. The European Communities summarizes the substance of each
contested conclusion and the related legal findings and interpretations.
The Notice of Appeal also contains a list of the legal provisions of the
covered agreements that the Panel is alleged to have erred in
interpreting or applying. In our view, the Notice of Appeal gives
adequate notice to the Complaining Parties of the content of its appeal
so as to allow them to make a proper defence, as required by Rule
20(2)(d) of the Working Procedures.
W.2.7.3.5 US — Countervailing Duty Investigation on DRAMS, para.
97
(WT/DS296/AB/R)
Korea alleges that the United States’ Notice of Appeal does not
identify the alleged errors in the issues of law covered in the Panel
Report and legal interpretations developed by the Panel. We disagree.
Although Korea is correct that the United States’ Notice of Appeal
simply tracks the Panel’s finding, nevertheless, the Notice of Appeal
states that the alleged error of the Panel is the finding that Korea’s
request for consultations provides sufficient indication of the legal
basis for the complaint; it mentions that Article 4.4 of the DSU is the
relevant legal provision, and it indicates the paragraphs of the Panel
Report where this finding is made. Thus, the United States’ Notice of
Appeal provides adequate notice to Korea of the “nature of the appeal”
in order to allow it to know the case to which it must respond. In our
view, this is sufficient, in this case, for purposes of Rule 20(2)(d) of
the Working Procedures.
W.2.7.3.6 EC — Bananas III (Article 21.5
— Ecuador II) / EC — Bananas III (Article 21.5 — US), paras. 280-283
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1,
WT/DS27/AB/RW/USA/Corr.1)
Rule 20(2)(d) does not stipulate what consequences flow from a
failure to meet its requirements. In assessing the potential
consequences, we are mindful of the due process function that this Rule
fulfils. The Appellate Body recognized in US — Countervailing
Measures on Certain EC Products:
… the important balance that must be maintained between the right
of Members to exercise the right of appeal meaningfully and effectively,
and the right of appellees to receive notice through the Notice of
Appeal of the findings under appeal, so that they may exercise their
right of defence effectively.
The Appellate Body stated in that case that the requirements of Rule
20(2) “serve to ensure that the appellee also receives notice, albeit
brief, of the ‘nature of the appeal’ and the ‘allegations of
errors’ by the panel”. The Appellate Body held, in Japan — Apples, that “an evaluation of the sufficiency of a Notice of
Appeal must examine whether the appellee received notice therein of the
issues to be argued on appeal”.
In keeping with this approach, we assess, in the present case,
whether the United States was put on notice of the alleged errors of law
and legal interpretations in the US Panel Report by the European
Communities’ Notice of Appeal. …
… We therefore consider that … the United States was in
the position to “know the case [it had] to meet”, and was thus
placed on notice of the issues raised in the European Communities’
Notice of Appeal. The formal defects in the Notice of Appeal thus do not
give rise to procedural detriment of the kind that would warrant the
dismissal of the European Communities’ appeal. We therefore find that
the deficiencies in the European Communities’ Notice of Appeal do not
lead to dismissal of the European Communities’ appeal.
W.2.7.4 AMENDMENT. See also Working Procedures for Appellate
Review, Rule 30 — Withdrawal, Withdrawal and re-filing of Notice of
Appeal (W.2.13.1)
W.2.7.4.1 US — Countervailing Measures on Certain EC Products,
para. 52
(WT/DS212/AB/R)
On 10 September 2002, the European Communities … filed a
Request for a Preliminary Ruling (the “Request”), alleging that the
United States’ Notice of Appeal “is manifestly not in conformity
with Rule 20(2)(d) of the Working Procedures for Appellate Review”
because it “fails to identify the findings or the legal
interpretations that it considers to be erroneous”. The European
Communities argued that “[a]s a consequence, the European Communities
is unable to prepare its response to the appeal.” The European
Communities asked us to “order the United States, pursuant to Rule
16(1) of the Working Procedures, immediately to file further and better
particulars to its notice of appeal identifying the precise legal
findings and legal interpretations that it is challenging”.
W.2.7.4.2 US — Countervailing Measures on Certain EC Products,
para. 64
(WT/DS212/AB/R)
In conducting our analysis, we will examine both the Notice of Appeal
and the letter of 13 September 2002 supplementing the Notice of Appeal.
Although the Working Procedures do not expressly provide for the
filing of clarifications or further particulars or supplementary or
amended Notices of Appeal, we consider it appropriate, in the particular
circumstances of this case, to examine both documents with a view to
giving “full meaning and effect to the right of appeal”. We note in
particular that the additional document was filed by the United States
in response to our invitation to do so, based in part on a request for
additional particulars filed by the European Communities. Moreover, the
additional document was filed shortly after the filing of the Notice of
Appeal (three days). Finally, we note that the European Communities
referred to both the Notice of Appeal and the letter of 13 September
2002 in its arguments on this issue.
W.2.7.5 ARTICLE 11 OF THE DSU
— ALLEGATION OF THE PANEL’S FAILURE
TO OBJECTIVELY ASSESS. See also Standard
of Review, Article 11 of the DSU (S.7.2-8)
W.2.7.5.1 US — Countervailing Measures on Certain EC Products,
para. 74
(WT/DS212/AB/R)
… A claim of error by a panel under Article 11 of the DSU is
possible only in the context of an appeal. By definition, this claim will
not be found in requests for establishment of a panel, and panels
therefore will not have referred to it in panel reports. Accordingly, if
appellants intend to argue that issue on appeal, they must refer to it
in Notices of Appeal in a way that will enable appellees to discern it
and know the case they have to meet.
W.2.7.5.2 Japan — Apples,
paras. 126-127
(WT/DS245/AB/R)
By referring to the Panel’s alleged failure to comply with Article
11 of the DSU only in the context of Article 2.2, Japan did not enable
the United States to “know the case [it had] to meet” as to the
Article 11 claim related to Article 5.1 of the SPS Agreement. The
Appellate Body has consistently emphasized that due process requires
that a Notice of Appeal place an appellee on notice of the issues raised
on appeal. It is this concern with due process, reflected in Rule 20 of
the Working Procedures, that underlay the Appellate Body’s
ruling on the sufficiency of the Notice of Appeal in US — Countervailing Measures on Certain EC Products.
… the Appellate Body determined in US — Countervailing
Measures on Certain EC Products that Article 11 claims are distinct
from those raised under substantive provisions of other covered
agreements. It follows from this distinction that notice of an Article
11 challenge cannot be “assumed” merely because there is a challenge
to a panel’s analysis of a substantive provision of a WTO agreement.
Rather, an Article 11 claim constitutes a “separate ‘allegation of
error’ ” that must be included in a Notice of Appeal. We therefore
reject Japan’s assertion that an Article 11 challenge is only a “legal
argument” underlying the issues raised on appeal.
W.2.7.5.3 US — Corrosion-Resistant Steel Sunset Review,
footnote 60 to para. 71
(WT/DS244/AB/R)
We have already held that a claim, by an appellant, that a panel
erred under Article 11 of the DSU, and a request for a finding to this
effect, must be included in the Notice of Appeal, and clearly
articulated and substantiated in an appellant’s submission with
specific arguments. …
W.2.7.5.4 US — Steel Safeguards,
paras. 498-499
(WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R,
WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R)
A challenge under Article 11 of the DSU must not be vague or
ambiguous. On the contrary, such a challenge must be clearly articulated
and substantiated with specific arguments. An Article 11 claim is not to
be made lightly, or merely as a subsidiary argument or claim in support
of a claim of a panel’s failure to construe or apply correctly a
particular provision of a covered agreement. A claim under Article 11 of
the DSU must stand by itself and be substantiated, as such, and not as
subsidiary to another alleged violation.
The United States’ arguments on Article 11 of the DSU are mentioned
only in passing in its appellant’s submission. Nowhere do we find a
clearly articulated claim or specific arguments that would support such
a claim. Moreover, the United States did not clarify its challenge under
Article 11 of the DSU during the oral hearing. In sum, the United States
has not substantiated its claim that the Panel acted inconsistently with
Article 11 of the DSU, and this claim must therefore fail.
W.2.7.5.5 Canada — Wheat Exports and Grain Imports,
paras. 176-177
(WT/DS276/AB/R)
We agree with Canada that [the United States’ claim that the Panel
did not examine the measure in its entirety] … fits more
properly under Article 11 of the DSU [than under Article XVII:1 of the
GATT 1994]. The Appellate Body has stated previously that the measure at
issue (and the claims made by the complaining Member) make up the “matter
referred to the DSB” for the purpose of Article 7 of the DSU. In
this sense, the United States’ argument that the Panel did not examine
the measure in its entirety relates to the Panel’s examination of the
“matter”. Article 11 of the DSU sets out the duties of a panel,
including that it “should make an objective assessment of the matter
before it” (emphasis added). Therefore, as we see it, the United
States’ allegation that the Panel did not examine the measure in its
entirety amounts to an allegation that the Panel did not “make an
objective assessment of the matter” under Article 11 of the DSU.
Although an appellant is free to determine how to characterize its
claims on appeal, at the same time due process requires that the legal
basis of a claim be sufficiently clear to allow an appellee to respond
effectively. This is especially the case when the claim is an allegation
that the panel did not make an objective assessment of the matter as
required by Article 11 of the DSU because, by definition, such a claim
will not be found in the request for the establishment of the panel and,
therefore, the panel will not have referred to it in the panel report.
W.2.7.5.6 US — Upland Cotton, para. 398
(WT/DS267/AB/R)
In its opening statement delivered at the oral hearing, the United
States confirmed that it has not made an Article 11 claim in this
appeal. Rather, the United States claims that the Panel erred in its
interpretation of Article 6.3(c) of the SCM Agreement and in
applying this interpretation to the facts in this dispute. The United
States also requests us not to dismiss certain of its arguments as
requested by Brazil. Under these circumstances, there is no need for us
to rule that the United States makes no Article 11 claim. We also
refrain from ruling on whether the Panel complied with Article 11 of the
DSU. Moreover, we decline to dismiss the United States’ arguments that
Brazil lists in Annex A to its appellee’s submission on the basis that
an Article 11 claim was not properly set out by the United States.
W.2.7.5.7 EC — Bananas III (Article 21.5
— Ecuador II) / EC — Bananas III (Article 21.5 — US), para. 229
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1,
WT/DS27/AB/RW/USA/Corr.1)
Making reference to Article 11 of the DSU, the European Communities
further alleges that the Panel failed to provide any justification for
rejecting its claim based on the principle of good faith. The United
States responds that this claim is outside the scope of this appeal
because the European Communities’ Notice of Appeal does not contain a
reference to Article 11 of the DSU. We note that the European
Communities clarified at the oral hearing that it was not advancing a
claim under Article 11 of the DSU. Therefore, we make no finding in
respect to that provision.
W.2.7.5.8 EC — Bananas III (Article 21.5
— Ecuador II) / EC — Bananas III (Article 21.5 — US), para. 259
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1,
WT/DS27/AB/RW/USA/Corr.1)
With respect to the European Communities’ mention of Article 11 of
the DSU, we note that the European Communities clarified, at the oral
hearing, that it was not invoking Article 11 as the basis of a separate
claim. The European Communities explained that, rather, it made
reference to Article 11 of the DSU as a supporting argument in the
context of allegations of violation of other provisions of the GATT 1994
or the DSU. We also note that Article 11 has not been listed by the
European Communities in its Notice of Appeal. In these circumstances, we
make no finding with respect to Article 11 of the DSU.
W.2.7A Rule 21 — Appellant’s submission back to top
W.2.7A.1 Japan — DRAMs (Korea),
paras. 145-146
(WT/DS336/AB/R, WT/DS336/AB/R/Corr.1)
Korea contends that Japan’s appellant’s submission does not
satisfy the requirements of Rule 21(2) of the Working Procedures and
the requirements of due process. Korea asserts, in particular, that it
had “not been given adequate notice of the nature of Japan’s
arguments or an adequate opportunity to refute them”.
Japan provides extensive arguments, in its appellant’s submission,
to support its assertion that the Panel’s review of the JIA’s
determination of entrustment or direction is erroneous. As we see it, a
careful reading of Japan’s appellant’s submission should have
indicated to Korea that these arguments are also relevant with respect
to the Panel’s review of the JIA’s benefit determination. Therefore,
in our view, Japan’s appellant’s submission satisfies the
requirements of Rule 21(2) of the Working Procedures and of due
process.
W.2.7A.2 US — Stainless Steel (Mexico), footnote 16 to para. 4
(WT/DS344/AB/R)
… Along with its appellant’s submission, which it filed in
Spanish, Mexico provided a courtesy English translation and an English
executive summary of its appellant’s submission. On 8 February 2008,
Mexico provided an executive summary of its appellant’s submission in
Spanish to the Appellate Body and to the United States and the third
participants. In view of the fact that Mexico filed the appellant’s
submission in Spanish and the executive summary in English on the due
date, and that the Spanish executive summary was filed after the
deadline for filing an appellant’s submission, the Appellate Body
Division hearing the appeal informed the participants and the third
participants that it considered the Spanish version of the executive
summary to be a courtesy translation.
W.2.7B Rule 22 — Appellee’s submission back to top
W.2.7B.1 Canada — Wheat Exports and Grain Imports,
paras. 162-163
and footnote 190
(WT/DS276/AB/R)
Canada states that it would welcome “guidance” from the Appellate
Body as to whether a conditional request to complete the analysis of a
particular issue should be raised in an appellee’s submission filed
pursuant to Rule 22 of the Working Procedures, or in an other
appellant’s submission filed pursuant to Rule 23. …
As we have not reversed the Panel’s interpretation of subparagraph
(b) of Article XVII:1, the condition on which Canada’s request to
complete the analysis is made has not been satisfied. … In the
circumstances of this appeal, it is neither necessary nor appropriate
for us to provide “guidance” on the issue of how conditional
requests to complete the analysis are properly brought before the
Appellate Body.190
W.2.8 Rule 23 — Multiple appeals — (cross appeal).
See
also Working Procedures for Appellate Review, Rule 20 — Notice of
Appeal (W.2.7); Working Procedures for Appellate Review, Rule 22
— Appellee’s submission (W.2.7B)
back to top
W.2.8.1 US — Gasoline, p. 12, DSR 1996:I, p. 3 at 11
(WT/DS2/AB/R)
… to deal with those two issues [i.e. the clean air issue and the
application of the TBT Agreement], under the circumstances of
this appeal, would have required the Appellate Body casually to
disregard its own Working Procedures and to do so in the absence
of a compelling reason grounded on, for instance, fundamental fairness
or force majeure. Venezuela and Brazil could have appealed the
Panel’s finding and non-finding on the two matters by taking advantage
of Rules 23(1) or 23(4) of the Working Procedures and thereby
placing the Appellate Body in a position to dispose of those issues
directly in one and the same appellate proceeding.
… the route they chose for addressing the two issues in question is
not contemplated by the Working Procedures, and therefore, these
issues are not properly the subject of this appeal.
W.2.9 Rule 24 — Third participants. See also Third Party
Rights (T.8); Working Procedures for Appellate Review, Rule 26 — Working schedule
(W.2.10); Working Procedures for Appellate Review, Rule
27 — Oral hearing (W.2.11) back to top
W.2.9.1 Argentina — Footwear (EC), para. 7
(WT/DS121/AB/R)
On 19 October 1999, the Appellate Body received a letter from the
Government of Paraguay indicating its interest “in attending” the
oral hearing in this appeal. On 25 October 1999, the Appellate Body
received a second letter from Paraguay clarifying that it was not
requesting an opportunity to “make oral arguments or presentations at
the oral hearing” as set forth in Rule 27.3 of the Working
Procedures. Rather, Paraguay maintained that, as a third party which
had notified its interest to the Dispute Settlement Body under Article
10.2 of the DSU, it had the right to “participate passively” in the
oral hearing before the Appellate Body in the present dispute. No
participant or third participant objected to the participation of
Paraguay on a “passive” basis. On 26 October 1999, the Members of
the Division hearing this appeal informed Paraguay, the participants and
third participants that, having regard to the provisions of Articles
10.2 and 17.4 of the DSU as well as the provisions of Rules 24 and 27 of
the Working Procedures, Paraguay would be allowed to attend the
oral hearing as a “passive observer”.
W.2.9.2 EC — Asbestos, para. 7
(WT/DS135/AB/R)
On 21 November 2000, the Appellate Body received a letter from
Zimbabwe indicating its interest in attending the oral hearing in this
appeal. Zimbabwe participated in the proceedings before the Panel as a
third party which had notified its interest to the DSB under Article
10.2 of the DSU, but it did not file a third participant’s submission
in the appeal. No participant or third participant objected to Zimbabwe’s
request. On 15 December 2000, the Members of the Division hearing this
appeal informed Zimbabwe, the participants and third participants, that
Zimbabwe would be allowed to attend the oral hearing as a passive
observer.
W.2.9.3 US — Lamb,
paras. 8-9
(WT/DS177/AB/R, WT/DS178/AB/R)
On 26 February 2001, the Appellate Body received letters from Canada
and Japan indicating that they would not be filing written submissions
in this appeal. Canada stated that it “reserve[d] the right to
intervene, as appropriate, during the oral hearing” and Japan
indicated that it wished “to reserve its right to present its views at
the oral hearing”. On 6 March 2001, the Appellate Body Secretariat
replied to Canada and Japan that the Division hearing this appeal wished
to have clarification as to whether Canada and Japan wanted to attend
the oral hearing simply as “passive observers” or to participate
actively in the oral hearing. By their letters dated 9 March 2001,
Canada stated that it wished to attend the oral hearing as a “passive
observer”, while Japan stated that it “would like to hear the
arguments made by the parties to the dispute, and to intervene when
necessary and [when] given an opportunity to do so by the Appellate Body”.
On 9 March 2001, the Appellate Body Secretariat informed the
participants and third participants that the Division hearing this
appeal was “inclined to allow Canada and Japan to attend the oral
hearing as passive observers, if none of the participants or third
participants object”. No such objection was received. On 14 March
2001, the Division hearing this appeal informed Canada, Japan, the
participants and the European Communities, that Canada and Japan would
be allowed to attend the oral hearing as passive observers, that is, to
hear the oral statements and responses to questioning by Australia, the
European Communities, New Zealand and the United States.
W.2.9.4 US — Shrimp (Article 21.5
— Malaysia), footnote 16 to
para. 10
(WT/DS58/AB/RW)
Pursuant to Rule 24 of the Working Procedures, Ecuador, a
third party in the proceedings before the Panel, did not file a third
participant’s submission, but requested permission to attend the oral
hearing as a “passive observer”. After consulting the participants
and third participants, the Division hearing this appeal granted Ecuador
permission to attend the oral hearing in this capacity.
W.2.9.5 India — Autos,
paras. 12-13
(WT/DS146/AB/R, WT/DS175/AB/R)
On 25 February 2002, the Appellate Body received a letter from Japan
indicating that Japan would not be filing a written submission in this
appeal, but that Japan wished to attend the oral hearing. By letter
dated 27 February 2002, the Appellate Body Secretariat informed Japan,
the participants and the third participant that the Division hearing
this appeal was “inclined to allow Japan to attend the oral hearing as
a passive observer, if none of the participants or third participants
object”. On 1 March 2002 and 4 March 2002, respectively, the Appellate
Body received written responses from the European Communities and the
United States.
Taking account of the views expressed by the European Communities and
the United States, the Division on 5 March 2002 informed Japan, the
participants, and the third participant, that although Japan had not
filed a written submission as a third participant, Japan would be
allowed to attend the oral hearing as a passive observer, that is, to
attend the oral hearing and hear the oral statements and responses to
questioning by the participants and the third participant in this
appeal.
W.2.9.6 Chile — Price Band System, para. 6
(WT/DS207/AB/R, WT/DS207/AB/R/Corr.1)
On 19 July 2002, the Appellate Body received communications from
Japan and Nicaragua stating that they wished to attend the oral hearing
in this appeal, although neither wished to file a written submission in
accordance with Rule 24 of the Working Procedures. On 22 July
2002, the Appellate Body notified the participants and third
participants that it was inclined to allow Japan and Nicaragua to attend
the oral hearing as passive observers, if none of the participants or
other third participants objected. No participant or third participant
objected to Japan and Nicaragua attending the oral hearing.
However, the European Communities considered that Japan and Nicaragua
should be allowed to attend the oral hearing as third participants and
not as passive observers. On 30 July 2002, the participants and third
participants were informed that Japan and Nicaragua would be allowed to
attend the oral hearing as passive observers.
W.2.9.7 EC — Sardines, para. 18
(WT/DS231/AB/R)
On 23 July 2002, we received a letter from Colombia indicating that,
although it would not file a third participant’s submission, it had an
interest in attending the oral hearing in this appeal. Colombia had
participated in the proceedings before the Panel as a third party which
had notified its interest to the DSB under Article 10.2 of the DSU. By
letter of 7 August 2002, we informed the participants and third
participants that we were inclined to allow Colombia to attend the oral
hearing as a passive observer, and to notify us if they had any
objection. The European Communities had no objection to Colombia
attending the oral hearing as a third participant, but did object to
Colombia attending as a passive observer. Ecuador had no objection to
Colombia attending the hearing, but found there was no legal basis to
apply a passive observer status and deny them the right to attend as a
third participant. On 9 August 2002, we informed the participants and
third participants that Colombia would be permitted to attend the oral
hearing as a passive observer.
W.2.9.8 EC — Tariff Preferences, para. 7
(WT/DS246/AB/R)
… on 2 February 2004, Brazil notified its intention to make a
statement at the oral hearing as a third participant, and Mauritius
notified its intention to appear at the oral hearing as a third
participant. Finally, on 2 February 2004, El Salvador, Guatemala,
Honduras, and Nicaragua jointly notified their intention to make a
statement at the oral hearing as third participants. On 4 February 2004,
Cuba notified its intention to appear at the oral hearing as a third
participant. By letter dated 16 February 2004, Pakistan submitted a
request to make a statement at the oral hearing. No participant objected
to Pakistan’s request, which was authorized by the Division hearing
the appeal on 18 February 2004.
W.2.9.9 US — Softwood Lumber VI (Article 21.5
— Canada), para.
14 and footnote 27
(WT/DS277/AB/RW, WT/DS277/AB/RW/Corr.1)
In its third participant’s submission, the European Communities
requested the Division hearing this appeal to allow the third
participants additional time to make their presentations at the oral
hearing. The European Communities based this request on “the
particularly complex context of this dispute and the importance of
factual issues” and the need for the European Communities to have time
to reflect on the United States’ appellee’s submission. The
participants and third participants were given an opportunity to comment
on this request27 and were then informed, by letter dated 21 February
2006, that the Division had decided to allow 10 minutes to the third
participants to deliver their oral presentations.
W.2.9.10 US — Zeroing (EC), footnote 16 to para. 4
(WT/DS294/AB/R, WT/DS294/AB/R/Corr.1)
… Concerning the timing of its submission, Japan stated that, given
that it has brought its own dispute regarding the United States’
zeroing methodology (US — Zeroing (Japan), WT/DS322), “its
interests in this appeal are, essentially, those of an appellant, even
though it is a third participant”. Japan went on to say that it was,
therefore, taking “the unusual step of filing its third participant’s
submission on the same day as the appellant, that is, considerably ‘within
25 days after the date of filing of the Notice of Appeal’ ”. …
W.2.9.11 US — Shrimp (Thailand) / US
— Customs Bond Directive,
footnote 36 to para. 19
(WT/DS343/AB/R, WT/DS345/AB/R)
… On 26 May 2008, the participants and the third participants were
provided an English translation, prepared by the WTO Language Services
and Documentation Division, of Chile’s third participant’s
submission, filed originally in Spanish on 20 May 2008.
W.2.10 Rule 26 — Working schedule back to top
W.2.10.1 EXTENSION OF DEADLINE FOR SUBMISSIONS OF PARTICIPANTS OR
THIRD PARTICIPANTS
W.2.10.1.1 EC — Bananas III, para. 3
(WT/DS27/AB/R)
… In accordance with Rule 16(2) of the Working Procedures,
and at the request of the Complaining Parties, the Appellate Body granted a two-day
extension for the filing of appellees’ and third participants’ submissions. …
W.2.10.1.2 Guatemala
— Cement I, para. 4
(WT/DS60/AB/R)
… On 14 August 1998, Guatemala filed an appellant’s submission
drafted in Spanish. On 31 August 1998, Mexico filed an appellee’s
submission also drafted in Spanish. In order to ensure that the third
participant would have time to prepare its submission after receiving an
English version of the appellant’s submission, the Appellate Body
granted the United States additional time to file its third participant’s
submission. The United States filed that submission on 14 September
1998. By our ruling of 31 August 1998, we declined Mexico’s request
that its appellee’s submission be withheld from Guatemala and the
United States until the end of the time-period allowed to the United
States to file its third participant’s submission. …
W.2.10.1.3 EC — Bed Linen, footnote 12 to para. 6
(WT/DS141/AB/R)
Following a joint request by the European Communities and India, the
Division hearing the appeal decided on 12 December 2000, pursuant to
Rule 16(2) of the Working Procedures and in the light of the “exceptional
circumstances” in this appeal, to extend the time-period for filing
the appellee’s and third participant’s submissions from 2 January
2001 to 8 January 2001.
W.2.10.1.4 US — Softwood Lumber IV,
paras. 6-7 and footnotes
16-17
(WT/DS257/AB/R)
… On 3 October 2003, for scheduling reasons, the United States
withdrew its Notice of Appeal pursuant to Rule 30 of the Working
Procedures, conditional on its right to re-file the Notice of Appeal
at a later date. On 21 October 2003, the United States re-filed a
substantively identical Notice of Appeal pursuant to Rule 20 of the Working
Procedures. On that same day, the United States filed its appellant’s
submission in accordance with the Working Schedule drawn up by
the Division for this appeal.
On 23 October 2003, the European Communities, a third participant in
these proceedings, requested the Appellate Body to modify the Working
Schedule.16 On 24 October 2003, the Appellate Body declined the
European Communities’ request, noting that extending the date for the
filing of third participants’ submissions would significantly reduce
the time available for the Division to consider carefully the arguments
raised therein as well as the time available to the participants to
respond to those arguments.17 The Division also observed that the new
Notice of Appeal filed by the United States on 21 October 2003 was, in
all relevant respects, identical to the one submitted on 2 October 2003,
and that the critical time-period for third participants and appellees
to prepare their responses to arguments raised by appellants and other
appellants is the period between the receipt of the appellant’s or
other appellant’s submissions, which contains the appellants’
arguments, and the due date for the filing of the third participants’
submissions. The Division noted that the time-period between the receipt
of the appellant’s submission and the due date for third participants’
submissions in this case was the same as it would have been, had the
Notice of Appeal of 21 October 2003 been filed 10 days before the date
of the appellant’s submission, as normally occurs.
W.2.10.1.5 Chile — Price Band System (Article 21.5
— Argentina),
para. 11 and footnote 30
(WT/DS207/AB/RW)
… on 9 February 2007, the Division received a letter from Argentina
requesting, pursuant to Rule 16(2) of the Working Procedures, to
change the date scheduled for filing its other appellant’s submission
from 20 February to 26 February 2007. Argentina explained that filing a
submission on 20 February would be “highly problematic for Argentina”
because the oral hearing in another appellate proceeding, in which
Argentina was also a participant, would be held on 19 February 2007. The
Appellate Body invited Chile and the third participants to comment on
Argentina’s request. Neither Chile nor any third participant objected
to Argentina’s request, but Chile and the United States requested
extensions of the deadlines for filing their submissions in the event
that the Division granted Argentina’s request.30 By letter dated 15
February 2007, the Division informed the participants and the third
participants that it had decided to change the date for filing Argentina’s
other appellant’s submission from 20 February to 23 February 2007, and
the date for filing Chile’s appellee’s submission and the third
participants’ submissions from 2 March to 6 March 2007.
W.2.10.1.6 US — Upland Cotton (Article 21.5
— Brazil),
footnote 35 to para. 13
(WT/DS267/AB/RW)
… After consultation with the participants, the Appellate Body
Division hearing this appeal allocated additional time for filing the
appellees’ submissions and the third participants’ submissions and
notifications, pursuant to Rules 16, 22, 23, 24, and 26 of the Working
Procedures.
W.2.10.1.7 US — Shrimp (Thailand) / US
— Customs Bond Directive,
paras. 17-18
(WT/DS343/AB/R, WT/DS345/AB/R)
By letter dated 22 April 2008, India requested the Division to extend
the time period for filing its appellant’s submission by one working
day, that is, from 24 April to 25 April 2008, pursuant to Rule 16(2) of
the Working Procedures, due to certain unforeseen developments.
On the same day, the Division invited the participants and third
participants to comment on India’s request by 5 p.m. on 23 April 2008.
Two comments were received: Thailand did not object to India’s
request; and the United States submitted that it would accept India’s
request provided that the filing dates applicable to the United States’
submissions would be adjusted accordingly.
Having carefully considered India’s request and the views expressed
by the United States and Thailand, the Division granted India time until
1 p.m., Geneva time, on 25 April 2008 to file its appellant’s
submission. Further, in view of the submission made by the United
States, the Division also granted the United States time until 1 p.m.,
Geneva time, on 20 May 2008 to file its appellee’s submissions. The
same extension was also granted to India and to Thailand to file their
appellee’s submissions and to those third participants wishing to file
a submission pursuant to Rule 24(1) or a notification pursuant to Rule
24(2) of the Working Procedures.
W.2.10.1.8 US — Continued Suspension / Canada
— Continued
Suspension, footnote 66 to para. 27
(WT/DS320/AB/R, WT/DS321/AB/R)
Pursuant to Rules 22 and 23(4) of the Working Procedures.
After consultation with the participants, the Division hearing this
appeal allocated additional time for filing the appellees’ submissions
and the third participants’ submissions and notifications, pursuant to
Rules 16, 22, 23, 24, and 26 of the Working Procedures.
W.2.10.2 EXTENSION OF DEADLINE FOR CIRCULATION OF APPELLATE BODY
REPORT
W.2.10.2.1 EC — Hormones (Communication from the Appellate Body
— WT/DS26/11,
WT/DS48/9)
… I am writing to inform you that the Appellate Body will not be
able to circulate its Report in this appeal by 23 December 1997, due to
the exceptional nature of this case, the time needed for translation and
the intervention of the Christmas holiday period. As a result, the
Appellate Body Report in this appeal will be circulated to WTO Members
by Friday, 16 January 1998.
W.2.10.2.2 US — Lead and Bismuth II, para. 8
(WT/DS138/AB/R)
On 19 March 2000, Mr Christopher Beeby, a Member of the Division
hearing this appeal, passed away. … Due to these same
extraordinary circumstances, the participants in this appeal, the
European Communities and the United States, agreed to a two week
extension of the 90-day time limit for the consideration of this appeal,
and thus agreed that this Report should be circulated no later than 10
May 2000.
W.2.10.2.3 EC — Asbestos, para. 8
(WT/DS135/AB/R)
On 20 December 2000, the Appellate Body informed the DSB that, due to
the exceptional workload of the Appellate Body, and in 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.
W.2.10.2.4 Thailand
— H-Beams, para. 7
(WT/DS122/AB/R)
… On 20 December 2000, the Appellate Body informed the DSB that,
due to the exceptional workload of the Appellate Body, and in 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.
W.2.10.2.5 US — Upland Cotton, para. 8
(WT/DS267/AB/R)
After consultation with the Appellate Body Secretariat, Brazil and
the United States noted, in letters filed on 10 December 2004, that it
would not be possible for the Appellate Body to circulate its Report in
this appeal within the 90-day time limit referred to in Article 17.5 of
the DSU. Brazil and the United States agreed that additional time was
needed for several reasons: the issues arising in this appeal were
particularly numerous and complex compared to prior appeals, which
increased the burden on the Appellate Body and WTO translation services;
WTO translation services were unavailable during the WTO holiday period;
and the Appellate Body was likely to be considering two or three other
appeals during the same period. Brazil and the United States accordingly
confirmed that they would deem the Appellate Body Report in this
proceeding, issued no later than 3 March 2005, to be an Appellate Body
Report circulated pursuant to Article 17.5 of the DSU.
W.2.10.2.6 US — Upland Cotton (Article 21.5
— Brazil), para.
14
(WT/DS267/AB/RW)
After consultation with the Appellate Body Secretariat, Brazil and
the United States agreed, in a joint letter dated 19 March 2008, that it
would not be possible for the Appellate Body to circulate its Report in
this appeal within the 90-day time-limit referred to in Article 17.5 of
the DSU. Brazil and the United States agreed that additional time was
needed because of the complexity of the issues arising in the appeal and
the difficulties encountered by the Appellate Body in scheduling the
oral hearing. Brazil and the United States accordingly confirmed that
they would deem the Appellate Body Report in these proceedings, issued
no later than 2 June 2008, to be an Appellate Body Report circulated
pursuant to Article 17.5 of the DSU.
W.2.10.2.7 US — Continued Suspension / Canada
— Continued
Suspension, para. 29
(WT/DS320/AB/R, WT/DS321/AB/R)
After consultation with the Appellate Body Secretariat, Canada, the
European Communities, and the United States each agreed that it would
not be possible for the Appellate Body to circulate its Reports in these
appeals within the 90-day time limit referred to in Article 17.5 of the
DSU. Canada, the European Communities, and the United States agreed that
additional time was needed because of the preliminary procedural issue
arising in these proceedings, the size of the Panel record, the number
and complexity of the issues appealed, and the fact that there was
another appellate proceeding running simultaneously. Accordingly,
Canada, the European Communities, and the United States each confirmed
that it would deem the Appellate Body Reports in these proceedings,
issued no later than 16 October 2008, to be Appellate Body reports
circulated pursuant to Article 17.5 of the DSU.
W.2.11 Rule 27 —
Oral hearing. See also Business
Confidential Information (B.4); Confidentiality
(C.6)
back to top
W.2.11.1 CHANGE OF DATE
W.2.11.1.1 EC — Bananas III, para. 4
(WT/DS27/AB/R)
On 10 July 1997, pursuant to Rule 16(2) of the Working Procedures,
the Government of Jamaica asked the Appellate Body to postpone the dates
of the oral hearing, set out in the working schedule for 21 and 22 July
1997, to 4 and 5 August 1997. This request was not granted as the
Appellate Body was not persuaded that there were exceptional
circumstances resulting in manifest unfairness to any participant or
third participant that justified the postponement of the oral hearing in
this appeal.
W.2.11.1.2 US — Shrimp (Article 21.5
— Malaysia), para. 11
(WT/DS58/AB/RW)
On 13 August 2001, the United States requested that the Division
hearing this appeal change the date of the oral hearing set out in the
working schedule for this appeal. After inviting the participants to
make their views known with respect to this request, the Division ruled
that it would not change the date of the oral hearing. Accordingly, the
oral hearing in the appeal was held on 4 September 2001. …
W.2.11.1.3 US — Softwood Lumber VI (Article 21.5
— Canada),
para. 13 and footnote 25
(WT/DS277/AB/RW)
On 18 January 2006, the Director of the Appellate Body Secretariat
received a letter from the United States requesting to change the date
scheduled for the oral hearing in this appeal — 23 February 2006 — on the grounds that “lead counsel for the United States [was] not
available on that date, due to a long-established prior commitment”.
Neither Canada nor the third participants objected to the United States’
request.25 By letter dated 26 January 2006, the Division informed the
participants and the third participants that it had decided to change
the date of the oral hearing to 24 February 2006.
W.2.11.1.4 US — Softwood Lumber V (Article 21.5
— Canada),
para. 9 and footnote 29
(WT/DS264/AB/RW)
The oral hearing in this appeal was held on 24 June
2006.29 …
W.2.11.2 JOINT ORAL HEARING
W.2.11.2.1 US — 1916 Act, para. 8
(WT/DS136/AB/R, WT/DS162/AB/R)
The oral hearing in the two appeals was held on 19 July 2000. The
participants and third participants presented oral arguments and
responded to questions put to them by the Members of the Division
hearing the appeals.
W.2.11.2.2 US — Continued Suspension / Canada
— Continued
Suspension, para. 27
(WT/DS320/AB/R, WT/DS321/AB/R)
In a letter dated 30 May 2008, the Division noted that, in the
interests of “fairness and orderly procedure”, as referred to in
Rule 16(1) of the Working Procedures, and in agreement with the
participants, the appellate proceedings in respect of the European
Communities’ appeal from the Panel Reports in US — Continued
Suspension and Canada — Continued Suspension would be
consolidated due to the substantial overlap in the content of the
disputes. A single Division would hear and decide the appeals, and a
single oral hearing would be held by the Division. …
W.2.11.3 OPEN ORAL HEARING
W.2.11.3.1 US — Continued Suspension / Canada
— Continued
Suspension, paras. 31-33
(WT/DS320/AB/R, WT/DS321/AB/R)
Canada, the European Communities, and the United States requested, on
3 June 2008, that the Division authorize public observation of the oral
hearing. They argued that public observation of the oral hearing was not
precluded by the DSU, the Working Procedures, or the Rules of
Conduct for the Understanding on Rules and Procedures Governing the
Settlement of Disputes (the “Rules of Conduct”). The
participants proposed various logistical arrangements that would allow
public observation, while respecting the confidentiality of any third
participants that did not wish to disclose their oral statements or
responses to questions. On 4 June 2008, the Division invited the third
participants to comment in writing on the participants’ request to
open the hearing to public observation. In particular, the Division
asked for the third participants’ views on the permissibility of
opening the hearing for public observation under the DSU and the Working
Procedures, and, if they so wished, on the specific logistical
arrangements proposed in the requests. Comments were received, on 12
June 2008, from Australia, Brazil, China, India, Mexico, New Zealand,
Norway, and the Separate Customs Territory of Taiwan, Penghu, Kinmen and
Matsu. Australia, New Zealand, Norway, and the Separate Customs
Territory of Taiwan, Penghu, Kinmen and Matsu supported the participants’
request to open the hearing to public observation. Brazil, China, India,
and Mexico requested the Appellate Body to deny the participants’
request. According to these third participants, the oral hearing forms
part of the proceedings of the Appellate Body and, therefore, is subject
to the requirement of Article 17.10 of the DSU that “[t]he proceedings
of the Appellate Body shall be confidential”. On 16 June 2008, the
Division invited Canada, the European Communities, and the United States
to comment on the submissions made by the third participants. Third
participants who wished to submit comments on the submissions made by
the other third participants were also invited to do so. Additional
comments from Canada, the European Communities, and the United States
were received on 23 June 2008. On 7 July 2008, the Division held an oral
hearing with the participants and third participants, exclusively
dedicated to exploring the issues raised by the request of the
participants to authorize public observation. The participants and third
participants made oral statements and responded to questions from the
Division. At the end of the oral hearing, the participants and third
participants were invited to submit, by close of business, 8 July 2008,
additional comments relating specifically to the technical modalities
proposed by the participants for public observation. Comments were
received from Brazil, China, India, and Mexico, as well as Canada, the
European Communities, and the United States.
On 10 July 2008, the Division issued a Procedural Ruling in which it
authorized the public observation of the oral hearing and adopted
additional procedures for that purpose in accordance with Rule 16(1) of
the Working Procedures. The Procedural Ruling is attached as
Annex 4 of this Report. Public observation took place via simultaneous
closed-circuit television broadcast to a separate room. …
The oral hearing took place on 28-29 July 2008. Pursuant to the
additional procedures adopted by the Division, Canada, the European
Communities, and the United States were authorized to disclose their
oral statements and responses to questions. Australia, New Zealand,
Norway, and the Separate Customs Territory of Taiwan, Penghu, Kinmen and
Matsu were also authorized to disclose their statements and responses to
questions. The oral statements and responses to questions of the other
third participants were not subject to observation by the public.
W.2.11.3.2 US — Continued Suspension / Canada
— Continued
Suspension, Annex IV, paras. 3-10
(WT/DS320/AB/R, WT/DS321/AB/R)
The participants have different views on the scope of the term “proceedings”
in Article 17.10 of the DSU. The European Communities argues that the
term “proceedings” in Article 17.10 should be interpreted narrowly
as referring to the Appellate Body’s internal work and does not
include its oral hearing. The United States refers to the
Recommendations by the Preparatory Committee for the WTO. The United
States contends that the Preparatory Committee viewed Article 17.10 as
focused on the deliberations of the Appellate Body. Canada concedes that
the term “proceedings” covers the oral hearing. A similar view has
been put forward by Brazil, China, India, and Mexico. We consider the
term “proceedings” to mean the entire process by which an appeal is
prosecuted, from the initiation of an appeal to the circulation of the
Appellate Body report, including the oral hearing. This is also how the
Appellate Body understood the term in Canada — Aircraft. Having
agreed with this broad interpretation of the term “proceedings”, we
now consider the precise meaning and scope of the confidentiality
requirement in Article 17.10.
The third participants that object to the request to allow public
observation argue that the confidentiality requirement in Article 17.10
is absolute and permits of no derogation. We disagree with this
interpretation because Article 17.10 must be read in context,
particularly in relation to Article 18.2 of the DSU. The second sentence
of Article 18.2 expressly provides that “[n]othing in this
Understanding shall preclude a party to a dispute from disclosing
statements of its own positions to the public”. Thus, under Article
18.2, the parties may decide to forgo confidentiality protection in
respect of their statements of position. With the exception of India,
the participants and third participants agreed that the term “statements
of its own positions” in Article 18.2 extends beyond the written
submissions referred to in the first sentence of Article 18.2, and
includes oral statements and responses to questions posed by the
Appellate Body at the oral hearing. The third sentence of Article 18.2
states that “Members shall treat as confidential information submitted
by another Member to the panel or the Appellate Body which that Member
has designated as confidential.” This provision would be redundant if
Article 17.10 were interpreted to require absolute confidentiality in
respect of all elements of appellate proceedings. There would be no need
to require, pursuant to Article 18.2, that a Member designate certain
information as confidential. The last sentence of Article 18.2 ensures
that even such designation by a Member does not put an end to the right
of another Member to make disclosure to the public. Upon request, a
Member must provide a non-confidential summary of the information
contained in its written submissions that it designated as confidential,
which can then be disclosed to the public. Thus, Article 18.2 provides
contextual support for the view that the confidentiality rule in Article
17.10 is not absolute. Otherwise, no disclosure of written submissions
or other statements would be permitted during any stage of the
proceedings.
In practice, the confidentiality requirement in Article 17.10 has its
limits. Notices of Appeal and Appellate Body reports are disclosed to
the public. Appellate Body reports contain summaries of the participants’
and third participants’ written and oral submissions and frequently
quote directly from them. Public disclosure of Appellate Body reports is
an inherent and necessary feature of our rules-based system of
adjudication. Consequently, under the DSU, confidentiality is relative
and time-bound.
In our view, the confidentiality requirement in Article 17.10 is more
properly understood as operating in a relational manner. There are
different sets of relationships that are implicated in appellate
proceedings. Among them are the following relationships. First, a
relationship between the participants and the Appellate Body. Secondly,
a relationship between the third participants and the Appellate Body.
The requirement that the proceedings of the Appellate Body are
confidential affords protection to these separate relationships and is
intended to safeguard the interests of the participants and third
participants and the adjudicative function of the Appellate Body, so as
to foster the system of dispute settlement under conditions of fairness,
impartiality, independence and integrity. In this case, the participants
have jointly requested authorization to forgo confidentiality protection
for their communications with the Appellate Body at the oral hearing.
The request of the participants does not extend to any communications,
nor touches upon the relationship, between the third participants and
the Appellate Body. The right to confidentiality of third participants
vis-à-vis the Appellate Body is not implicated by the joint request.
The question is thus whether the request of the participants to forgo
confidentiality protection satisfies the requirements of fairness and
integrity that are the essential attributes of the appellate process and
define the relationship between the Appellate Body and the participants.
If the request meets these standards, then the Appellate Body would
incline towards authorizing such a joint request.
We note that the DSU does not specifically provide for an oral
hearing at the appellate stage. The oral hearing was instituted by the
Appellate Body in its Working Procedures, which were drawn up
pursuant to Article 17.9 of the DSU. The conduct and organization of the
oral hearing falls within the authority of the Appellate Body (compétence
de la compétence) pursuant to Rule 27 of the Working Procedures.
Thus, the Appellate Body has the power to exercise control over the
conduct of the oral hearing, including authorizing the lifting of
confidentiality at the joint request of the participants as long as this
does not adversely affect the rights and interests of the third
participants or the integrity of the appellate process. As we observed
earlier, Article 17.10 also applies to the relationship between third
participants and the Appellate Body. Nevertheless, in our view, the
third participants cannot invoke Article 17.10, as it applies to their
relationship with the Appellate Body, so as to bar the lifting of
confidentiality protection in the relationship between the participants
and the Appellate Body. Likewise, authorizing the participants’
request to forgo confidentiality, does not affect the rights of third
participants to preserve the confidentiality of their communications
with the Appellate Body.
Some of the third participants argued that the Appellate Body is
itself constrained by Article 17.10 in its power to authorize the
lifting of confidentiality. We agree that the powers of the Appellate
Body are themselves circumscribed in that certain aspects of
confidentiality are incapable of derogation — even by the Appellate
Body — where derogation may undermine the exercise and integrity of
the Appellate Body’s adjudicative function. This includes the
situation contemplated in the second sentence of Article 17.10, which
provides that “[t]he 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.” As noted by the
participants, the confidentiality of the deliberations is necessary to
protect the integrity, impartiality, and independence of the appellate
process. In our view, such concerns do not arise in a situation where,
following a joint request of the participants, the Appellate Body
authorizes the lifting of the confidentiality of the participants’
statements at the oral hearing.
The Appellate Body has fostered the active participation of third
parties in the appellate process in drawing up the Working Procedures
and in appeal practice. Article 17.4 provides that third
participants “may make written submissions to, and be given an
opportunity to be heard by, the Appellate Body”. In its Working
Procedures, the Appellate Body has given full effect to this right
by providing for participation of third participants during the entirety
of the oral hearing, while third parties meet with panels only in a
separate session at the first substantive meeting. Third participants,
however, are not the main parties to a dispute. Rather, they have a
systemic interest in the interpretation of the provisions of the covered
agreements that may be at issue in an appeal. Although their views on
the questions of legal interpretation that come before the Appellate
Body are always valuable and thoroughly considered, these issues of
legal interpretation are not inherently confidential. Nor is it a matter
for the third participants to determine how the protection of
confidentiality in the relationship between the participants and the
Appellate Body is best dealt with. In order to sustain their objections
to public observation of the oral hearing, third participants would have
to identify a specific interest in their relationship with the Appellate
Body that would be adversely affected if we were to authorize the
participants’ request — in this case, we can discern no such
interests.
The request for public observation of the oral hearing has been made
jointly by the three participants, Canada, the European Communities, and
the United States. As we explained earlier, the Appellate Body has the
power to authorize a joint request by the participants to lift
confidentiality, provided that this does not affect the confidentiality
of the relationship between the third participants and the Appellate
Body, or impair the integrity of the appellate process. The participants
have suggested alternative modalities that allow for public observation
of the oral hearing, while safeguarding the confidentiality protection
enjoyed by the third participants. The modalities include simultaneous
or delayed closed-circuit television broadcasting in a room separate
from the room used for the oral hearing. Finally, we do not see the
public observation of the oral hearing, using the means described above,
as having an adverse impact on the integrity of the adjudicative
functions performed by the Appellate Body.
W.2.11.3.3 EC — Bananas III (Article 21.5
— Ecuador II) / EC — Bananas III (Article 21.5 — US), paras. 26, 28-29
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1,
WT/DS27/AB/RW/USA/Corr.1)
Ecuador, the European Communities, and the United States requested,
on 29 August 2008, that the Division authorize public observation of the
oral hearing. They submitted that public observation of the oral hearing
is not precluded by the DSU, the Working Procedures, or the Rules
of Conduct for the Understanding on Rules and Procedures Governing the
Settlement of Disputes. The participants expressed a preference for
simultaneous closed-circuit television broadcast to a separate room.
…
On 18 September 2008, the Division issued a Procedural Ruling in
which it authorized the public observation of the oral hearing and
adopted additional procedures for that purpose in accordance with Rule
16(1) of the Working Procedures. Notice of the opening of the
hearing to public observation and registration instructions were
provided on the WTO website.
The oral hearing in these appeals was held on 16-17 October 2008.
The participants and third participants presented oral arguments (with
the exception of Mexico) and responded to questions posed by the
Division hearing the appeals. Public observation took place via
simultaneous closed-circuit television broadcast to a separate room.
Pursuant to the additional procedures adopted by the Division, no third
participant requested that its oral statements and responses to
questions remain confidential and not be subject to public observation.
W.2.11.3.4 EC — Bananas III (Article 21.5
— Ecuador II) / EC — Bananas III (Article 21.5 — US), Annex IV,
paras. 4-6
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1,
WT/DS27/AB/RW/USA/Corr.1)
Similar requests were made in the United States
— Continued
Suspension of Obligations in the EC — Hormones Dispute and Canada
— Continued Suspension of Obligations in the EC — Hormones Dispute appeals,
in which the Appellate Body set out its reasoning for granting the
requests. The salient reasoning [is set out in paragraphs 3-9 of our
procedural ruling in that case].
We are not persuaded that there is any basis to depart from this
reasoning.
The request for public observation of the oral hearing in these
disputes has been made jointly by the three participants, Ecuador, the
European Communities, and the United States. As we explained in our
reasoning in United States — Continued Suspension of Obligations in
the EC — Hormones Dispute and Canada — Continued Suspension
of Obligations in the EC — Hormones Dispute, the Appellate Body
has the power to authorize a joint request by the participants to lift
confidentiality, provided that this does not affect the confidentiality
of the relationship between the third participants and the Appellate
Body, or impair the integrity of the appellate process. There is no
reason in this case not to authorize the requests made to us. The
participants have suggested alternative modalities that allow for public
observation of the oral hearing, while safeguarding the confidentiality
protection enjoyed by the third participants. The modalities include
simultaneous or delayed closed-circuit television broadcasting in a room
separate from the room used for the oral hearing. Finally, we do not see
the public observation of the oral hearing, using the means described
above, as having an adverse impact on the integrity of the adjudicative
functions performed by the Appellate Body.
W.2.11.3.5 US — Continued Zeroing, paras. 7-9
(WT/DS350/AB/R)
The European Communities and the United States requested, by letters
dated 14 and 17 November 2008, respectively, that the Appellate Body
Division hearing this appeal authorize public observation of the oral
hearing. The European Communities and the United States submitted that
public observation of the oral hearing was not precluded by the DSU, the
Working Procedures, or the Rules of Conduct for the
Understanding on Rules and Procedures Governing the Settlement of
Disputes. The participants proposed public observation by means of a
simultaneous closed-circuit television broadcast to a separate room,
with the transmission being interrupted when any third participant
wishing to maintain the confidentiality of its statements took the
floor.
…
On 28 November 2008, the Division issued a Procedural Ruling in which
it authorized the public observation of the oral hearing for the
participants and the third participants who so requested, and adopted
additional procedures for that purpose in accordance with Rule 16(1) of
the Working Procedures. Oral statements and responses to
questions by third participants wishing to maintain the confidentiality
of their submissions were not subject to public observation.
W.2.11.3.6 US — Continued Zeroing, Annex III,
paras. 3-9
(WT/DS350/AB/R)
We are making the following ruling on the requests of the
participants, having carefully considered the comments of the third
participants. Article 17.10 must be read in context, particularly in
relation to Article 18.2 of the DSU. The second sentence of Article 18.2
expressly provides that “[n]othing in this Understanding shall
preclude a party to a dispute from disclosing statements of its own
positions to the public”. Thus, under Article 18.2, the parties may
decide to forgo confidentiality protection in respect of their
statements of position. The third sentence of Article 18.2 states that
“Members shall treat as confidential information submitted by another
Member to the panel or the Appellate Body which that Member has
designated as confidential.” This provision would be redundant if
Article 17.10 were interpreted to require absolute confidentiality in
respect of all elements of appellate proceedings. There would be no need
to require, pursuant to Article 18.2, that a Member designate certain
information as confidential. The last sentence of Article 18.2 ensures
that even such designation by a Member does not put an end to the right
of another Member to make disclosure to the public. Upon request, a
Member must provide a non-confidential summary of the information
contained in its written submissions that it designated as confidential,
which can then be disclosed to the public. Thus, Article 18.2 provides
contextual support for the view that the confidentiality rule in Article
17.10 is not absolute. Otherwise, no disclosure of written submissions
or other statements would be permitted during any stage of the
proceedings.
In practice, the confidentiality requirement in Article 17.10 has its
limits. Notices of Appeal and Appellate Body reports are disclosed to
the public. Appellate Body reports contain summaries of the participants’
and third participants’ written and oral submissions and frequently
quote directly from them. Public disclosure of Appellate Body reports is
an inherent and necessary feature of our rules-based system of
adjudication. Consequently, under the DSU, confidentiality is relative
and time-bound.
In our view, the confidentiality requirement in Article 17.10 is more
properly understood as operating in a relational manner. There are
different sets of relationships that are implicated in appellate
proceedings. Among them are the following relationships. First, a
relationship between the participants and the Appellate Body. Secondly,
a relationship between the third participants and the Appellate Body.
The requirement that the proceedings of the Appellate Body are
confidential affords protection to these separate relationships and is
intended to safeguard the interests of the participants and third
participants and the adjudicative function of the Appellate Body, so as
to foster the system of dispute settlement under conditions of fairness,
impartiality, independence and integrity. In this case, the participants
have requested authorization to forgo confidentiality protection for
their communications with the Appellate Body at the oral hearing. The
requests of the participants do not extend to any communications, nor
touch upon the relationship, between the third participants and the
Appellate Body. The right to confidentiality of third participants
vis-à-vis the Appellate Body is not implicated by these requests. The
question is thus whether the participants’ requests to forgo
confidentiality protection satisfy the requirements of fairness and
integrity that are the essential attributes of the appellate process and
define the relationship between the Appellate Body and the participants.
If the requests meet these standards, then the Appellate Body would
incline towards authorizing them.
We note that the DSU does not specifically provide for an oral
hearing at the appellate stage. The oral hearing was instituted by the
Appellate Body in its Working Procedures, which were drawn up
pursuant to Article 17.9 of the DSU. The conduct and organization of the
oral hearing falls within the authority of the Appellate Body (compétence
de la compétence) pursuant to Rule 27 of the Working Procedures.
Thus, the Appellate Body has the power to exercise control over the
conduct of the oral hearing, including authorizing the lifting of
confidentiality at the request of the participants as long as this does
not adversely affect the rights and interests of the third participants
or the integrity of the appellate process. As we observed earlier,
Article 17.10 also applies to the relationship between third
participants and the Appellate Body. Nevertheless, in our view, the
third participants cannot invoke Article 17.10, as it applies to their
relationship with the Appellate Body, so as to bar the lifting of
confidentiality protection in the relationship between the participants
and the Appellate Body. Likewise, authorizing the participants’
requests to forgo confidentiality does not affect the rights of third
participants to preserve the confidentiality of their communications
with the Appellate Body.
The powers of the Appellate Body are themselves circumscribed in that
certain aspects of confidentiality are incapable of derogation — even
by the Appellate Body — where derogationmay undermine the exercise and
integrity of the Appellate Body’s adjudicative function. This includes
the situation contemplated in the second sentence of Article 17.10,
which provides that “[t]he 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.”
Confidentiality of the deliberations is necessary to protect the
integrity, impartiality, and independence of the appellate process. In
our view, such concerns do not arise in a situation where, following
requests from the participants, the Appellate Body authorizes the
lifting of the confidentiality of the participants’ statements at the
oral hearing.
The Appellate Body has fostered the active participation of third
parties in the appellate process in drawing up the Working Procedures
and in appeal practice. Article 17.4 provides that third
participants “may make written submissions to, and be given an
opportunity to be heard by, the Appellate Body”. In its Working
Procedures, the Appellate Body has given full effect to this right
by providing for participation of third participants during the entirety
of the oral hearing, while third parties meet with panels only in a
separate session at the first substantive meeting. The rights of third
participants are distinct from those of the main participants to a
dispute. They have a systemic interest in the interpretation of the
provisions of the covered agreements that may be at issue in an appeal.
Although their views on the questions of legal interpretation that come
before the Appellate Body are always valuable and thoroughly considered,
these issues of legal interpretation are not inherently confidential.
However, it is not for the third participants to determine how the
protection of confidentiality in the relationship between the
participants and the Appellate Body is best dealt with. We do not
consider that the third participants have identified a specific interest
in their relationship with the Appellate Body that would be adversely
affected if we were to authorize the participants’ requests.
The requests for public observation of the oral hearing in this
dispute have been made by the European Communities and the United
States. As we explained earlier, the Appellate Body has the power to
authorize the requests by the participants to lift confidentiality,
provided that this does not affect the confidentiality of the
relationship between the third participants and the Appellate Body, or
impair the integrity of the appellate process. The participants have
suggested alternative modalities that allow for public observation of
the oral hearing, while safeguarding the confidentiality protection
enjoyed by the third participants that seek such protection. The
modalities include simultaneous or delayed closed-circuit television
broadcasting in a room separate from the room used for the oral hearing.
Finally, we do not see the public observation of the oral hearing, using
the means described above, as having an adverse impact on the integrity
of the adjudicative functions performed by the Appellate Body.
W.2.11.3.7 US — Zeroing (EC) (Article 21.5
— EC), paras. 14-15
(WT/DS294/AB/RW, WT/DS294/AB/RW/Corr.1)
On 16 and 19 February 2009, respectively, the European Communities
and the United States requested the Appellate Body Division hearing this
appeal to authorize public observation of the oral hearing. Both
participants relied on the reasoning of the Appellate Body in previous
cases to authorize public observation of the oral hearing, and expressed
a preference for simultaneous closed circuit television broadcast to a
separate room. On 20 February 2009, the Division invited the third
participants to comment in writing on the requests of the European
Communities and the United States, as well as the specific logistical
arrangements proposed in the requests. … On 4 March 2009, the
Division issued a Procedural Ruling in which it authorized the public
observation of the oral hearing and adopted additional procedures on
logistical arrangements in accordance with Rule 16(1) of the Working
Procedures. Notice of the opening of the hearing to public
observation and registration instructions were provided on the WTO
website.
The oral hearing in this appeal was held on 23-24 March 2009. The
participants and third participants were given the opportunity to
present oral arguments and respond to questions posed by the Division
hearing the appeal. Public observation took place via simultaneous
closed-circuit television broadcast to a separate room.
W.2.11.3.8 US — Zeroing (EC) (Article 21.5
— EC), Annex III, paras. 3-9
(WT/DS294/AB/RW, WT/DS294/AB/RW/Corr.1)
We are making the following ruling on the requests of the
participants, having carefully considered the comments of the third
participants. Article 17.10 must be read in context, particularly in
relation to Article 18.2 of the DSU. The second sentence of Article 18.2
expressly provides that “[n]othing in this Understanding shall
preclude a party to a dispute from disclosing statements of its own
positions to the public”. Thus, under Article 18.2, the parties may
decide to forgo confidentiality protection in respect of their
statements of position. The third sentence of Article 18.2 states that
“Members shall treat as confidential information submitted by another
Member to the panel or the Appellate Body which that Member has
designated as confidential.” This provision would be redundant if
Article 17.10 were interpreted to require absolute confidentiality in
respect of all elements of appellate proceedings. There would be no need
to require, pursuant to Article 18.2, that a Member designate certain
information as confidential. The last sentence of Article 18.2 ensures
that even such designation by a Member does not put an end to the right
of another Member to make disclosure to the public. Upon request, a
Member must provide a non-confidential summary of the information
contained in its written submissions that it designated as confidential,
which can then be disclosed to the public. Thus, Article 18.2 provides
contextual support for the view that the confidentiality rule in Article
17.10 is not absolute. Otherwise, no disclosure of written submissions
or other statements would be permitted during any stage of the
proceedings.
In practice, the confidentiality requirement in Article 17.10 has its
limits. Notices of Appeal and Appellate Body reports are disclosed to
the public. Appellate Body reports contain summaries of the participants’
and third participants’ written and oral submissions and frequently
quote directly from them. Public disclosure of Appellate Body reports is
an inherent and necessary feature of our rules-based system of
adjudication. Consequently, under the DSU, confidentiality is relative
and time-bound.
In our view, the confidentiality requirement in Article 17.10 is more
properly understood as operating in a relational manner. There are
different sets of relationships that are implicated in appellate
proceedings. Among them are the following relationships. First, a
relationship between the participants and the Appellate Body. Secondly,
a relationship between the third participants and the Appellate Body.
The requirement that the proceedings of the Appellate Body are
confidential affords protection to these separate relationships and is
intended to safeguard the interests of the participants and third
participants and the adjudicative function of the Appellate Body, so as
to foster the system of dispute settlement under conditions of fairness,
impartiality, independence and integrity. In this case, the participants
have requested authorization to forgo confidentiality protection for
their communications with the Appellate Body at the oral hearing. The
requests of the participants do not extend to any communications, nor
touch upon the relationship, between the third participants and the
Appellate Body. The right to confidentiality of third participants
vis-à-vis the Appellate Body is not implicated by these requests. The
question is thus whether the participants’ requests to forgo
confidentiality protection satisfy the requirements of fairness and
integrity that are the essential attributes of the appellate process and
define the relationship between the Appellate Body and the participants.
If the requests meet these standards, then the Appellate Body would
incline towards authorizing them.
We note that the DSU does not specifically provide for an oral
hearing at the appellate stage. The oral hearing was instituted by the
Appellate Body in its Working Procedures, which were drawn up
pursuant to Article 17.9 of the DSU. The conduct and organization of the
oral hearing falls within the authority of the Appellate Body (compétence
de la compétence) pursuant to Rule 27 of the Working Procedures.
Thus, the Appellate Body has the power to exercise control over the
conduct of the oral hearing, including authorizing the lifting of
confidentiality at the request of the participants as long as this does
not adversely affect the rights and interests of the third participants
or the integrity of the appellate process. As we observed earlier,
Article 17.10 also applies to the relationship between third
participants and the Appellate Body. Nevertheless, in our view, the
third participants cannot invoke Article 17.10, as it applies to their
relationship with the Appellate Body, so as to bar the lifting of
confidentiality protection in the relationship between the participants
and the Appellate Body. Likewise, authorizing the participants’
requests to forgo confidentiality does not affect the rights of third
participants to preserve the confidentiality of their communications
with the Appellate Body.
The powers of the Appellate Body are themselves circumscribed in that
certain aspects of confidentiality are incapable of derogation — even
by the Appellate Body — where derogationmay undermine the exercise and
integrity of the Appellate Body’s adjudicative function. This includes
the situation contemplated in the second sentence of Article 17.10,
which provides that “[t]he 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.”
Confidentiality of the deliberations is necessary to protect the
integrity, impartiality, and independence of the appellate process. In
our view, such concerns do not arise in a situation where, following
requests from the participants, the Appellate Body authorizes the
lifting of the confidentiality of the participants’ statements at the
oral hearing.
The Appellate Body has fostered the active participation of third
parties in the appellate process in drawing up the Working Procedures
and in appeal practice. Article 17.4 provides that third
participants “may make written submissions to, and be given an
opportunity to be heard by, the Appellate Body”. In its Working
Procedures, the Appellate Body has given full effect to this
right by providing for participation of third participants during the
entirety of the oral hearing, while third parties meet with panels only
in a separate session at the first substantive meeting. The rights of
third participants are distinct from those of the main participants to a
dispute. They have a systemic interest in the interpretation of the
provisions of the covered agreements that may be at issue in an appeal.
Although their views on the questions of legal interpretation that come
before the Appellate Body are always valuable and thoroughly considered,
these issues of legal interpretation are not inherently confidential.
However, it is not for the third participants to determine how the
protection of confidentiality in the relationship between the
participants and the Appellate Body is best dealt with. We do not
consider that the third participants have identified a specific interest
in their relationship with the Appellate Body that would be adversely
affected if we were to authorize the participants’ requests.
The requests for public observation of the oral hearing in this
dispute have been made by the European Communities and the United
States. As we explained earlier, the Appellate Body has the power to
authorize the requests by the participants to lift confidentiality,
provided that this does not affect the confidentiality of the
relationship between third participants and the Appellate Body, or
impair the integrity of the appellate process. The participants have
suggested that the Appellate Body allow observation by the public of the
oral hearing in this dispute by means of simultaneous closed-circuit
television broadcasting with the transmission being switched off when
those third participants who do not wish to make their statements public
take the floor. We do not see the public observation of the oral
hearing, using the means described above, as having an adverse impact on
the integrity of the adjudicative functions performed by the Appellate
Body.
W.2.11.3.9 US — Zeroing (Japan) (Article 21.5
— Japan), paras.
17-18
(WT/DS322/AB/RW)
On 29 May 2009, Japan and the United States each requested the
Appellate Body Division hearing this appeal to authorize public
observation of the oral hearing. Japan explained that its request was
being made on the understanding that any information that it had
designated as confidential would be adequately protected in the course
of the hearing. …
In a Procedural Ruling dated 11 June 2009, the Appellate Body
Division hearing this appeal authorized the public observation of the
oral hearing and adopted additional procedures on logistical
arrangements in accordance with Rule 16(1) of the Working Procedures,
which it considered would address the concerns raised by certain third
participants and Japan.
W.2.11.3.10 US — Zeroing (Japan) (Article 21.5
— Japan),
Annex II, paras. 4-7
(WT/DS322/AB/RW)
Similar requests to allow public observation of the oral hearing have
been made in previous appeals. In acceding to these requests, the
Appellate Body relied on the same reasoning, which was first developed
in US — Continued Suspension and Canada — Continued
Suspension. We note the following main aspects of the reasoning set
out in the Procedural Rulings issued in those proceedings:
(a) Article 17.10 must be read in context, particularly in relation
to Article 18.2 of the DSU. The second sentence of Article 18.2
expressly provides that “[n]othing in this Understanding shall
preclude a party to a dispute from disclosing statements of its own
positions to the public”. Thus, under Article 18.2, the parties may
decide to forgo confidentiality protection in respect of their
statements of position. The third sentence of Article 18.2 states that
“Members shall treat as confidential information submitted by another
Member to the panel or the Appellate Body which that Member has
designated as confidential.” This provision would be redundant if
Article 17.10 were interpreted to require absolute confidentiality in
respect of all elements of appellate proceedings. Accordingly, Article
18.2 of the DSU provides contextual support for the view that the
confidentiality rule in Article 17.10 is not absolute, and has its
limits.
(b) The confidentiality requirement in Article 17.10 operates in a
relational manner. There are different sets of relationships that are
implicated in appellate proceedings, including: (i) a relationship
between the participants and the Appellate Body; and (ii) a relationship
between the third participants and the Appellate Body. The requirement
that the proceedings of the Appellate Body are confidential affords
protection to these separate relationships and is intended to safeguard
the interests of the participants and third participants and the
adjudicative function of the Appellate Body, so as to foster the system
of dispute settlement under conditions of fairness, impartiality,
independence and integrity. In this case, the participants have
requested authorization to forgo confidentiality protection for their
communications with the Appellate Body at the oral hearing. The requests
of the participants do not extend to any communications, nor touch upon
the relationship, between the third participants and the Appellate Body.
The right to confidentiality of third participants vis-à-vis the
Appellate Body is not implicated by these requests.
(c) The DSU does not specifically provide for an oral hearing at the
appellate stage. The oral hearing was instituted by the Appellate Body
in its Working Procedures. Pursuant to Rule 27 of the Working
Procedures, the Appellate Body has the power to exercise control
over the conduct of the oral hearing, including authorizing the lifting
of confidentiality at the request of the participants as long as this
does not adversely affect the rights and interests of the third
participants or the integrity of the appellate process. Even though
Article 17.10 also applies to the relationship between third
participants and the Appellate Body, the third participants cannot
invoke Article 17.10 as it applies to their relationship with the
Appellate Body, so as to bar the lifting of confidentiality protection
in the relationship between the participants and the Appellate Body.
Likewise, authorizing the participants’ requests to forgo
confidentiality, does not affect the rights of third participants to
preserve the confidentiality of their communications with the Appellate
Body.
(d) Although the powers of the Appellate Body are themselves
circumscribed in that certain aspects of confidentiality are incapable
of derogation — even by the Appellate Body — where derogation may
undermine the exercise and integrity of the Appellate Body’s
adjudicative function such concerns do not arise in a situation where,
following requests of the participants, the Appellate Body authorizes
the lifting of the confidentiality of the participants’ statements at
the oral hearing.
(e) The Appellate Body has fostered the active participation of third
parties in the appellate process in drawing up the Working Procedures
and in appeal practice. However, the rights of third participants
are distinct from those of the main participants to a dispute.
We note that public observation in these previous cases operated
smoothly and that the rights of third participants who did not wish to
have their oral statements made subject to public observation were fully
protected.
The requests for public observation of the oral hearing in this
dispute have been made by the two participants, Japan and the United
States. As explained above, the Appellate Body has the power to
authorize requests by the participants to lift confidentiality, provided
that this does not affect the confidentiality in the relationship
between the third participants and the Appellate Body, or impair the
integrity of the appellate process.
Japan stated that its request for an open hearing does not and should
not be deemed to forgo confidentiality protection with respect to
information it has designated as confidential during the compliance
proceedings in this dispute. Japan noted, in this respect, that the
third sentence of Article 18.2 of the DSU explicitly provides that “Members
shall treat as confidential information submitted by another Member to
the panel or the Appellate Body which that Member has designated as
confidential.” Japan therefore proposed that the Division hold an open
hearing by means of simultaneous closed-circuit television broadcast,
with the transmission being turned off should the Division or either of
the participants find it necessary to address issues that involve
confidential information that Japan has submitted in the course of these
compliance proceedings. The United States also considered that this
modality would allow for the concerns raised by Japan to be addressed
adequately. We agree that this is an adequate way to protect
confidential information in the context of a hearing that is open to
public observation.
W.2.12 Rule 28 — Written responses back to top
W.2.12.1 US — Gasoline, p. 3, DSR 1996:I, p. 3 at 4
(WT/DS2/AB/R)
The oral hearing contemplated by Rule 27 of the Working Procedures
was held on 27 and 28 March 1996. At the hearing, oral arguments
were made respectively by the participants and the third participants.
Questions were put to them by the Members of the Appellate Body hearing
the appeal. Most of these questions were answered orally, and some were
responded to in writing with the responses being furnished both to the
Appellate Body and the other participants and third participants. In
addition, the participants and third participants were invited to
provide, and did provide, the Appellate Body and each other with final
written statements of their respective positions. All the participants
and third participants responded positively and punctually, which was a
source of satisfaction for the Appellate Body.
W.2.12.2 Japan — Alcoholic Beverages II, p. 2, DSR 1996:I, p.
97 at 98
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)
The oral hearing contemplated by Rule 27 of the Working Procedures
was held on 9 September 1996. The participants presented their
arguments and answered questions from the Division of the Appellate Body
hearing the appeal (the “Division”). The participants answered most
of these questions orally at the hearing. They answered some in writing.
The Division gave each participant an opportunity to respond to the
written post-hearing memoranda of the other participants.
W.2.12.3 US — Underwear, p. 5, DSR 1997:I, p. 11 at 13-14
(WT/DS24/AB/R)
The oral hearing contemplated by Rule 27 of the Working Procedures
was held on 16 December 1996. At the hearing, oral arguments were
made respectively by the participants and the third participant.
Questions were put to them by the Division. All of these questions were
answered orally. The participants and third participant did not take
advantage of an invitation by the Division to submit post hearing
memoranda. On 18 December 1996, the United States submitted a written
clarification and amplification of its oral response to one of the
Division’s questions. The next day, Costa Rica responded in writing to
the United States’ clarification.
W.2.12.4 EC — Poultry, para. 6
(WT/DS69/AB/R)
The oral hearing in the appeal was held on 9 June 1998. The
participants and third participants presented oral arguments and
responded to questions put to them by the Members of the Division
hearing the appeal. The participants and third participants also gave
oral concluding statements. At the request of the Members of the
Division, the participants and third participants submitted, on 12 June
1998, written post hearing memoranda on particular issues relating to
the appeal. The participants submitted their respective written replies
to these post-hearing memoranda on 15 June 1998.
W.2.12.5 US — Shrimp, para. 8
(WT/DS58/AB/R)
… At the invitation of the Appellate Body, the United States,
India, Pakistan, Thailand and Malaysia filed additional submissions on
certain issues arising under Article XX(b) and Article XX(g) of the GATT
1994 on 17 August 1998. The oral hearing in the appeal was held on 19-20
August 1998. …
W.2.12.6 Canada — Patent Term, para. 8
(WT/DS170/AB/R)
… On 29 June 2000, Canada filed an appellant’s submission. The
United States filed an appellee’s submission on 14 July 2000. On 25
July 2000, at the request of the Appellate Body Division hearing the
appeal, the participants submitted additional memoranda on certain
issues of legal interpretation arising under Articles 70.1 and 70.2 of
the TRIPS Agreement. The Division afforded each participant an
opportunity to respond to the additional memoranda submitted by the
other participant.
W.2.12.7 US — Section 211 Appropriations Act, para. 13
(WT/DS176/AB/R)
On 2 November 2001, pursuant to Rule 28(1) of the Working
Procedures, the Division hearing the appeal requested that the
participants submit additional written memoranda on the interpretation
by domestic courts of Article 6quinquies of the Paris Convention
(1967), or the interpretation by domestic courts of legislation
incorporating Article 6quinquies. Both participants filed the
additional written memoranda on 6 November 2001, and served these
memoranda on each other. Pursuant to Rule 28(2) of the Working
Procedures, the Division gave the participants an opportunity to
respond to these memoranda at the oral hearing in this appeal.
W.2.12.8 US — FSC (Article 21.5
— EC), para. 11
(WT/DS108/AB/RW)
At the oral hearing, the Division requested the United States to
reduce to writing, by 28 November 2001, certain of its responses to
questioning. The Division also authorized the European Communities and
the third participants, if they wished, to respond in writing by 30
November 2001. In response to this request, the United States filed an
additional written memorandum on 28 November 2001. The European
Communities filed a response to this additional written memorandum on 30
November 2001.
W.2.12.9 US — Softwood Lumber IV (Article 21.5
— Canada),
para. 12
(WT/DS257/AB/RW)
On 26 September 2005, pursuant to Rule 28(1) of the Working
Procedures, the Appellate Body Division hearing this appeal
requested the United States to submit an additional written memorandum
explaining certain aspects of relevant United States laws and
procedures. The United States filed an additional written memorandum on
5 October 2005. On 10 October 2005, Canada submitted a written response
to the United States’ additional written memorandum. The Division
allowed the third participants additional time during the presentation
of their oral statements at the hearing to respond to these additional
memoranda.
W.2.13 Rule 30 — Withdrawal back to top
W.2.13.1 WITHDRAWAL AND RE-FILING OF NOTICE OF APPEAL
W.2.13.1.1 US — FSC, para. 4
(WT/DS108/AB/R)
… For scheduling reasons, and pursuant to an agreement it had
reached with the European Communities, on 2 November 1999 the United
States notified the Chairman of the Appellate Body and the Chairman of
the DSB of its decision to withdraw its 28 October 1999 notice of
appeal. This withdrawal was made pursuant to Rule 30(1) of the Working
Procedures, and was conditional upon the right of the United States
to file a new notice of appeal pursuant to Rule 20 of the Working
Procedures. …
W.2.13.1.2 US — Line Pipe, para. 13
(WT/DS202/AB/R)
On 6 November 2001, the United States notified the DSB of its
intention to appeal certain issues of law covered in the Panel Report
and certain legal interpretations developed by the Panel, pursuant to
paragraph 4 of Article 16 of the DSU, and filed a notice of appeal
pursuant to Rule 20 of the Working Procedures for Appellate Review (the
“Working Procedures”). For scheduling reasons, on 13 November
2001, the United States notified the Chairman of the Appellate Body and
the Chairman of the DSB of its decision to withdraw the notice of appeal
filed on 6 November 2001. The withdrawal was made pursuant to Rule 30(1)
of the Working Procedures, and was conditional on the right to
file a new notice of appeal. On 19 November 2001, the United States
again notified the DSB of its intention to appeal certain issues of law
covered in the Panel Report and certain legal interpretations developed
by the Panel, pursuant to paragraph 4 of Article 16 of the DSU, and
filed a new notice of appeal pursuant to Rule 20 of the Working
Procedures. …
W.2.13.1.3 EC — Sardines,
paras. 137-138
(WT/DS231/AB/R)
… Rule 30(1) of the Working Procedures for Appellate Review (the
“Working Procedures”), which governs the withdrawal of an
appeal …
… accords to the appellant a broad right to withdraw an appeal at
any time. This right appears, on its face, to be unfettered: an
appellant is not subject to any deadline by which to withdraw its
appeal; an appellant need not provide any reason for the withdrawal; and
an appellant need not provide any notice thereof to other participants
in an appeal. More significantly for this appeal, there is nothing in
the Rule prohibiting the attachment of conditions to a withdrawal. …
W.2.13.1.4 EC — Sardines,
paras. 140-141
(WT/DS231/AB/R)
This obligation to interpret the Working Procedures in a way
that promotes the effective resolution of disputes is complemented by
the obligation of Members, set out in Article 3.10 of the DSU, to “engage
in [dispute settlement] procedures in good faith in an effort to resolve
the dispute”. Hence, the right to withdraw an appeal must be exercised
subject to these limitations, which are applicable generally to the
dispute settlement process.
… While it is true that nothing in the text of Rule 30(1)
explicitly permits an appellant to exercise its right subject to
conditions, it is also true that nothing in the same text prohibits an
appellant from doing so. As we have just explained, in our view, the
right to withdraw a notice of appeal under Rule 30(1) is broad, subject
only to the limitations we have described. … Rather, the
correct interpretation, in our view, is that Rule 30(1) permits
conditional withdrawals, unless the condition imposed undermines the “fair,
prompt and effective resolution of trade disputes”, or unless the
Member attaching the condition is not “engag[ing] in [dispute
settlement] procedures in good faith in an effort to resolve the dispute”.
Therefore, it is necessary to examine any such conditions attached to
withdrawals on a case-by-case basis to determine whether, in fact, the
particular condition in a particular case in any way obstructs the
dispute settlement process, or in some way diminishes the rights of the
appellee or other participants in the appeal.
W.2.13.1.5 EC — Sardines,
paras. 145-147
(WT/DS231/AB/R)
… Thus, for the reasons explained, we find that the withdrawal of
the original Notice on condition of filing a replacement Notice was
appropriate and had the effect of conditionally withdrawing the original
Notice.
… We agree with Peru that there may be situations where the
withdrawal of an appeal on condition of refiling a new notice, and the
filing thereafter of a new notice, could be abusive and disruptive.
However, in such cases, we would have the right to reject the condition,
and also to reject any filing of a new notice of appeal, on the grounds
either that the Member seeking to file such a new notice would not be
engaging in dispute settlement proceedings in good faith, or that Rule
30(1) of the Working Procedures must not be used to undermine the
fair, prompt, and effective resolution of trade disputes. …
In addition, we believe there are circumstances that, although not
constituting “abusive practices”, would be in violation of the DSU,
and would, thus, compel us to disallow the conditional withdrawal of a
notice of appeal as well as the filing of a replacement notice. For
example, if the conditional withdrawal or the filing of a new notice
were to take place after the 60-day deadline in Article 16.4 of the DSU
for adoption of panel reports, this would effectively circumvent the
requirement to file appeals within 60 days of circulation of panel
reports. In such circumstances, we would reject the conditional
withdrawal and the new notice of appeal.
W.2.13.1.6 EC — Sardines, paras. 149-150
(WT/DS231/AB/R)
… we agree with the European Communities that the replacement
Notice of Appeal contains no additional grounds of appeal, and that it
merely added information to the paragraphs in the initial Notice that
Peru considered deficient.
… We are, however, not creating a new procedural right; we are only
upholding the right to withdraw an appeal. …
… In the circumstances of this case, we believe that Peru has been
accorded the full measure of its due process rights, because the
withdrawal of the original Notice and the filing of a replacement Notice
were carried out in response to objections raised by Peru, the
replacement Notice was filed in a timely manner and early in the
process, and the replacement Notice contained no new or modified grounds
of appeal. Also, Peru has not demonstrated that it suffered prejudice as
a result. Moreover, Peru was given an adequate opportunity to address
its concerns about the European Communities’ actions during the course
of the appeal.
W.2.13.1.7 US — Softwood Lumber IV, para. 6
(WT/DS257/AB/R)
On 2 October 2003, the United States notified the DSB of its
intention to appeal certain issues of law covered in the Panel Report
and certain legal interpretations developed by the Panel, pursuant to
paragraph 4 of Article 16 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (the “DSU”), and
filed a Notice of Appeal pursuant to Rule 20 of the Working
Procedures for Appellate Review (the “Working Procedures”).
On 3 October 2003, for scheduling reasons, the United States withdrew
its Notice of Appeal pursuant to Rule 30 of the Working Procedures,
conditional on its right to re-file the Notice of Appeal at a later
date. On 21 October 2003, the United States re-filed a substantively
identical Notice of Appeal pursuant to Rule 20 of the Working
Procedures. On that same day, the United States filed its appellant’s
submission in accordance with the Working Schedule drawn up by
the Division for this appeal.
W.2.13.2 WITHDRAWAL OF APPEAL
W.2.13.2.1 India — Autos, paras. 15, 17-18
(WT/DS146/AB/R, WT/DS175/AB/R)
On 14 March 2002, the Appellate Body received a letter from India, in
which India stated that:
Pursuant to Rule 30(1) of the Working Procedures for Appellate
Review, this is to inform the Appellate Body that India is withdrawing
the above-mentioned appeal; oral hearing on this is scheduled for 15
March 2002. Inconvenience caused to the Appellate Body, Secretariat, the
other parties and the third participants is deeply regretted.
…
Upon receipt of India’s letter of 14 March 2002, the Appellate Body
on the same day notified the DSB, pursuant to Rule 30(1) of the Working
Procedures, that India “has notified the Appellate Body that India
is withdrawing its appeal” in this dispute, and simultaneously
informed India, the European Communities, the United States, Korea and
Japan that the oral hearing in this appeal was cancelled.
In view of India’s withdrawal of the appeal by its letter of 14
March 2002, the Appellate Body hereby completes its work in this appeal.
Rules of Conduct
— Annex II. See Confidentiality
(C.6);
Working Procedures for Appellate Review, Rule 3 (W.2.2-3); Working
Procedures for Appellate Review, Rule 8 (W.2.4); Working Procedures for
Appellate Review, Rule 27 (W.2.11)
952. The relevant findings and conclusions for purposes of the
recommendations and rulings to be adopted by the DSB in this dispute,
pursuant to Article 17.14 of the DSU, are those set out in paragraph
763(e) and (f) of this Report. back to text
25. By letter dated 19 January 2006, the Appellate Body Division
hearing this appeal referred to Rule 16(2) of the Working Procedures and
invited the United States to provide further details in support of its
request, in particular, the nature of the “exceptional circumstances”,
as well as the “manifest unfairness” that would ensue in the absence
of a change to the date of the oral hearing. Canada and the third
participants were also invited to submit comments on the United States’
request. On 20 January 2006, the United States submitted additional
reasons in support of its request. On 24 January 2006, Canada informed
the Division that it preferred to have the oral hearing proceed on the
originally scheduled date, although Canada also indicated that a delay
of one day could “be accommodated”. … back to text
62. At the oral hearing, the United States and Canada confirmed their
preference for two separate Appellate Body reports. We have issued
separate reports (WT/DS320/AB/R and WT/DS321/AB/R), which are identical
except for the Findings and Conclusions section.
back to text
28. By letter dated 14 March 2006, the United States indicated that,
although it would ordinarily have concerns about a participant’s
untimely request to modify its submission, in this case the United
States did not object to Canada’s request, given that the errors at
issue were discussed at the oral hearing. The third participants did not
submit any comments. back to text
72. … Canada noted that the European Communities’ appellee’s
submission sent via email was also slightly delayed. The United States
noted that the European Communities announced in an email message that
it had delivered printed copies of its appellee’s submission to the
Appellate Body Secretariat and to the other participants and third
participants before 5 p.m.; however, the United States received the
electronic copy of the European Communities’ appellee’s submission
after 5 p.m., whereas the Working Schedule states that “[t]welve
printed copies, as well as an electronic copy, of each written
submission should be filed by 5 p.m., Geneva, Switzerland time, on the
due date indicated in this Working Schedule” (original underlining).
In the event the Appellate Body were to rule on the European Communities’
request regarding the United States’ appellee’s submission, the
United States requested the Appellate Body also to inform the European
Communities of the treatment to be accorded to its submission in the
light of Rule 18 of the Working Procedures.
back to text
190. We observe, in this respect, that Article 17.9 of the DSU
provides for the Appellate Body to consult with the Director-General of
the WTO and the Chair of the DSB in amending its Working Procedures.
In accordance with the DSB Decision of 19 December 2002 (WT/DSB/31), the
DSB Chair also consults with WTO Members on amendments proposed by the
Appellate Body. The Appellate Body monitors the operation of the Working
Procedures closely, and recognizes that a need for revision may
arise from time to time. We believe that issues such as the one referred
to by Canada in this appeal could usefully be addressed in the context
of future revision. back to text
27. … The Division invited the European Communities, once it had
reviewed the United States’ submission, to inform the Division whether
10 minutes would be sufficient or, if not, how much extra time the
European Communities was requesting. … the European Communities
responded by requesting 15 minutes for its oral presentation. Canada
expressed no objection, with the understanding that any extension of
time would not prejudice Canada’s rights, including the time to make
its oral presentation. The United States objected to the request,
arguing that none of the arguments advanced by the European Communities
justified giving third participants additional time for their oral
presentations; the United States noted, in particular, that, under the
currently applicable timetable for appeals, third participants, as a
rule, file their submissions on the same day as the appellee(s), and,
thus do not have time to reflect on the appellee’s submission before
filing their submission. back to text
16. In a letter from the Permanent Delegation of the European
Commission dated 23 October 2003, the European Communities argued that
the time-period within which it had to file its third participant’s
submission was contrary to Rule 24(1) of the Working Procedures because
it was less than 25 days from the date of the re-filing of the Notice of
Appeal. back to text
17. Letter from the Director of the Appellate Body Secretariat dated
24 October 2003. back to text
30. By letter dated 9 February 2007, the Division hearing this appeal
invited Chile and the third participants to submit written comments on
Argentina’s request. Chile, Brazil, Columbia, Peru, and the United
States submitted written comments. Chile agreed that the situation faced
by Argentina constituted “exceptional circumstances”, and stated
that it had no objection to Argentina’s request. However, Chile
requested that, should the Division decide to grant Argentina’s
request, the date for filing Chile’s appellee’s submission — due
on 2 March — also be extended by one week, to 9 March 2007. Chile
added that, in order to ensure that Chile’s procedural rights were not
compromised, the due date for Argentina’s appellee’s submission, 2
March 2007, should not be altered unless the date of the oral hearing
were also changed. The United States indicated that it had no objection
to Argentina’s request, but stated its “assumption” that, if the
date for the filing of Argentina’s other appellant’s submission were
to be deferred until 26 February, the date for the filing of a third
participant’s submission would be adjusted “commensurately”, that
is, postponed from 2 March until 8 March. Brazil, Columbia, and Peru
indicated that they had no objection to Argentina’s request
back to text
29. The oral hearing was originally scheduled for 26 June 2006.
However, the oral hearing had to be rescheduled owing to logistical
difficulties due to meetings held at the WTO building in connection with
Doha Development Agenda negotiations. Neither the participants nor the
third participants objected to the change of date.
back to text
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