World T Rade Organization: A Handbook On The WTO Dispute Settlement System Secondedition

WORLD TRADE ORGANIZATION
A Handbook on the WTO Dispute Settlement System

second edition
The WTO dispute settlement system has become one of the most
dynamic, effective and successful international dispute settlement systems
in the world over the past twenty years. This second edition of
A Handbook on the WTO Dispute Settlement System has been compiled
by the dispute settlement lawyers of the WTO Secretariat with a view to
providing a practice-oriented account of the system. In addition to
describing the existing rules and procedures, this accessibly written hand-
book explains how those rules and procedures have been interpreted by
dispute settlement panels and the Appellate Body, and how they have
evolved over time. The handbook provides practical information to help
various audiences understand the day-to-day operation of the WTO
dispute settlement system.
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WORLD T RADE
ORGANIZATION
second edition
Prepared by the Legal Affairs Division and the Rules Division of

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second edition
WORLD T RADE
ORGANIZATION
second edition


www.cambridge.org
DOI: 10.1017/9781108265423
7th printing 2011
Second edition 2017
ISBN 978-1-108-41727-3 Hardback
second edition
WORLD T RADE
ORGANIZATION
second edition


www.cambridge.org
DOI: 10.1017/9781108265423
7th printing 2011
Second edition 2017
ISBN 978-1-108-41727-3 Hardback
CONTENTS
Foreword xii
Abbreviations xiii
Disclaimer xv
1 Introduction to the WTO Dispute Settlement System 1
Importance of the Dispute Settlement System in the WTO 1
Functions, Objectives and Key Features of the Dispute Settlement
System 4
Providing Security and Predictability to the Multilateral Trading
System 5
Preserving the Rights and Obligations of WTO Members under the
WTO Agreement 6
Clarification of Rights and Obligations through Interpretation 7
“Mutually Agreed Solution” as “Preferred Solution” 12
Prompt Settlement of Disputes 13
Prohibition against Unilateral Determinations of Violation and
Unilateral Actions 15
Exclusive and Compulsory Jurisdiction 16
An Integrated Set of Rules and Procedures 17
2 Actors in the WTO Dispute Settlement Process 21

Parties and Third Parties 21
Parties 21
Third Parties 22
No Direct Access for Non-State Actors 22
The Dispute Settlement Body (DSB) 24
Composition and Functions 24
Decision-making in the DSB 24
Role of the DSB Chairperson 26
The WTO Secretariat 27
The Director-General of the WTO 27
The WTO Secretariat Staff 28
The WTO Dispute Settlement Registry 29
Panels 29
Functions and Composition of Panels 29
vi contents
Administrative and Legal Support to Panels and Arbitrators 30
Appellate Body 31
The Role of the Appellate Body 31
Composition and Structure of the Appellate Body 32
The Appellate Body Secretariat 33
Arbitrators 34
Experts 35
Rules of Conduct 37
3 The Scope of WTO Disputes 39
When Can a Dispute be Initiated? 39
What Can be Challenged? 40
Measures Attributable to a WTO Member 40
Acts or Omissions 41
Challenges to Measures “As Such” and “As Applied” 42
A Special Case: Anti-Dumping Measures 45
What Claims Can be Raised? 46
The Covered Agreements 46
Violation, Non-violation and Situation Complaints 47
4 The Stages in a Typical WTO Dispute 49

Consultations 50
The Purpose of WTO Consultations 50
Legal Basis and Requirements for a Request for Consultations 51
Procedure for Consultations 54
Third Parties in Consultations 55
Panel Review 57
Introduction 57
Establishment of a Panel 57
The Panel Request 57
Procedures for the Establishment of Panels by the DSB 60
Multiple Complainants: Joint Panels and Separate Panels with
Harmonized Proceedings 61
The Panel’s Terms of Reference 64
Third Parties before the Panel 66
“Substantial Interest” 66
Timing of the Request 67
Third-party Rights 68
Limited Rights Granted by the DSU 68
Enhanced Third-party Rights 69
Panel Composition 71
The Panel Review Process 73
Panel Working Procedures and Timetable for Panel Proceedings 73
Written Submissions 78
Meetings with the Parties 80
contents vii
General 80
Organizational Meeting 81
Substantive Meetings of the Panel with the Parties 81
Third-party Session 82
Deliberation of the Panel 83
Function of Panels 84
The Panel’s Standard of Review 84
Objective Assessment of the Matter (Article 11 of the DSU) 84
The Special Standard of Review in Article 17.6 of the
Anti-Dumping Agreement 88
Judicial Economy 89
Order of Analysis 91
Burden of Proof, Standard of Proof and Rules of Evidence 92
Burden of Proof 92
Standard of Proof 93
Rules of Evidence 94
The Panel’s Right to Seek Information 98
The Panel Report 99
Descriptive Part of the Panel Report 99
Interim Review and Interim Report 100
Findings and Recommendations 101
Issuance and Circulation of the Final Report 103
Panel Reports in Joint Proceedings 103
Appellate Review 104
Applicable Rules and Working Procedures for Appellate Review 104
Scope of Appellate Review 105
Right to Appeal 108
Third Participants at the Appellate Stage 109
Composition of Appellate Body Division 110
Procedures for Appellate Review 111
Notice of Appeal 111
Notice of Other Appeal 114
Written Submissions 114
Oral Hearing 117
Deliberations of the Appellate Body 118
Mandate of the Appellate Body 119
The Appellate Body Report 121
Withdrawal of an Appeal 123
Deadline for Completion of the Appellate Review 124
Adoption of the Reports by the Dispute Settlement Body 125
Legal Effect of Panel and Appellate Body Reports and DSB
Recommendations and Rulings 128
5 Compliance with DSB Recommendations and Rulings 130
Prompt Compliance 130
Intentions in Respect of Implementation 131
viii contents
Reasonable Period of Time for Implementation 132
Compliance Proceedings under Article 21.5 of the DSU 136
Remedies in the Event of Non-implementation 139
Compensation 139
Countermeasures (Suspension of Concessions and Other
Obligations) 141
Purpose of Countermeasures under the DSU 141
Procedure for the Authorization of Suspension of Concessions or
Other Obligations 142
Principles and Procedures Governing the Suspension of Concessions
or Other Obligations 143
Permissible Level of Suspension 144
Permissible Sector of Countermeasures 144
Arbitration under Article 22.6 of the DSU 147
Special Rules on Countermeasures for Prohibited and Actionable
Subsidies under the SCM Agreement 150
The “Sequencing” Issue 151
Multilateral Surveillance by the DSB Pending Full Implementation or
Satisfaction 152
Special Procedures for Non-violation and Situation Complaints 153
Non-violation Complaints 153
Situation Complaints 154
6 Other Procedural Issues Arising in WTO Dispute Settlement
Proceedings 155
Preliminary Rulings 155
Confidentiality 160
General Remarks 160
Confidentiality during Consultations 160
Confidentiality during Panel Proceedings 161
Confidentiality during Appellate Review 162
Legal Representation 162
Amicus curiae Submissions 163
Amicus curiae Briefs in Panel Proceedings 164
Amicus curiae Briefs in Appellate Review 165
7 Alternatives to Adjudication by Panels and the
Appellate Body 167
Mutually Agreed Solutions 167
Nature of Mutually Agreed Solutions 167
Legal Effect and Interpretation of Mutually Agreed Solutions 169
Timing of Negotiations for, and Notification of, Mutually Agreed
Solutions 169
Good Offices, Conciliation and Mediation 171
Arbitration Pursuant to Article 25 of the DSU 175
contents ix
8 Developing Countries in the WTO Dispute Settlement

System 176
Special and Differential Treatment 176
Special and Differential Treatment during Consultations 176
Special and Differential Treatment at the Panel Stage 176
Special and Differential Treatment at the Implementation Stage 177
Accelerated Procedure – Decision of 5 April 1966 178
Special Dispute Settlement Provisions for Least-developed Country
Members 179
Legal Assistance for both Developing and Developed Country
Members 180
Representation by External Counsel and the Advisory Centre on
WTO Law (ACWL) 181
9 Ongoing Efforts to Improve the WTO Dispute Settlement

System 183
Negotiations to Improve and Clarify the DSU 183
Secretariat’s Informal Consultations Concerning the Panel Process 184
10 Further Information and Resources 186

Legal Texts 186
WTO Official Documents 186
Information and Documents on the WTO Website 187
Reference Books 188
Contacting the WTO 189
11 Annex I: Flow Chart of the WTO Dispute Settlement
Process 190
12 Annex II: Dispute Settlement Rules 191
Provisions on Consultation and Dispute Settlement in GATT 1994,
GATS and the TRIPS Agreement 191
Articles XXII and XXIII of the GATT 1994 191
Articles XXII and XXIII of the GATS 192
Article 64 of the TRIPS Agreement 194
The Understanding on Rules and Procedures Governing the Settlement
of Disputes (DSU) 194
Special or Additional Rules and Procedures Contained in the Covered
Agreements in Force (Appendix 2 of the DSU) 227
Article 11.2 of the SPS Agreement 227
Articles 14.2 through 14.4 and Annex 2 of the TBT Agreement 227
Articles 17.4 through 17.7 of the Anti-Dumping Agreement 229
Articles 19.3 through 19.5 and Annex II.2(f), 3, 9, 21 of the
Customs Valuation Agreement 230
x contents
Articles 4.2 through 4.12, 6.6, 7.2 through 7.10, 8.5, 24.4, and 27.7 of
the SCM Agreement, footnote 35 thereto, and Annex V thereof 232
Paragraph 4 of the GATS Annex on Financial Services and Annex on
Air Transport Services 239
Paragraphs 1 through 5 of the Decision on Certain Dispute Settlement
Procedures for the General Agreement on Trade in Services 239
Rules of Conduct for the DSU (WT/DSB/RC/1) 240
13 Annex III: Examples of Panel Working Procedures 250
Annex III.A: Sample of Panel Working Procedures (Including Expert
Consultation Process) 250
Annex III.B: Sample of Additional Working Procedures for the Protection
of Strictly Confidential Information (SCI) 260
Annex III.C: Sample of Additional Working Procedures for the Protection
of Business Confidential Information (BCI) 261
Annex III.D: Sample of Working Procedures for Article 21.5
Compliance Panel 264
Annex III.E: Sample of Working Procedures for Article 22.6
Arbitration 270
14 Annex IV: Examples of Timetables for Panel
Proceedings 275
Annex IV.A: Sample of Timetable for Panel Proceedings (Original Panel
Proceedings without Experts) 275
Annex IV.B: Sample of Timetable for Panel Proceedings (Original Panel
Proceedings with Experts) 276
Annex IV.C: Sample of Timetable for Panel Proceedings (Compliance
Panel Proceedings) 278
Annex IV.D: Sample of Article 22.6 DSU Arbitration Timetable 279
15 Annex V: Working Procedures for Appellate Review

(WT/AB/WP/6) 280
16 Annex VI: DSB Practices 310
Working Practices Concerning Dispute Settlement Procedures
(WT/DSB/6) 310
United States – Section 306 of the Trade Act and Amendments Thereto
(WT/DS200/13) 312
17 Annex VII: Communication from the Director-General on

Article 5 of the DSU (WT/DSB/25) 313
18 Annex VIII: Decision of 5 April 1966 on Procedures under
Article XXIII (BISD 14S/18) 320
contents xi
19 Annex IX: Decision of 12 April 1989 on Improvements to

the GATT Dispute Settlement Rules and Procedures
(BISD 36S/61) 323
20 Annex X: Historic Development of the GATT/WTO Dispute
Settlement System 326
The System under the GATT 1947 and its Evolution over the Years 326
Articles XXII and XXIII of the GATT 1947 and Emerging
Practices 326
Limitations of the GATT Dispute Settlement System 328
Dispute Settlement under the Tokyo Round “Codes” 330
The Uruguay Round and the Decision of 1989 on Improvements to
GATT Dispute Settlement 330
Major Changes in the Uruguay Round 331
21 Annex XI: Index of Official Titles and Short Titles of WTO
Disputes (as of 1 December 2016) 332
22 Annex XII: WTO Disputes – Reports Circulated and/or
Adopted 361
Index 380
FOREWORD
This Handbook explains the rules and procedures of the WTO dispute
settlement system, explores the practices that have arisen in its operation
since its entry into force on 1 January 1995 and provides a comprehen-
sive account of the existing jurisprudence concerning dispute settlement
procedures. It also includes useful information on the operation of the
WTO dispute settlement system to date, including tips about notification
procedures, templates of working procedures and timetables, timelines of
actual disputes, statistical data, etc. The primary purpose of this Hand-
book is to explain the WTO dispute settlement system to an interested
person who may not necessarily have a legal background. With its
detailed content and practice-oriented focus, it may also serve as a useful
reference tool to experienced practitioners of WTO law, including not
only prospective panelists and private counsel but also government
officials from WTO members.
In this respect, the term “WTO member” appears in lower case
throughout this Handbook, contrary to the capitalization of the term
“WTO Member” as a matter of consistent usage throughout the WTO
Agreement, including the DSU, and all panel and Appellate Body reports.
The lower case is used in this Handbook to be consistent with the
editorial style adopted by Cambridge University Press for CUP/WTO
co-publications. For correct legal usage in other contexts, including in
official WTO dispute settlement practice, the term “WTO Member”
should be capitalized.
This second edition of the Handbook has been updated by a team of
dispute settlement lawyers from the WTO Secretariat, including Rambod
Behboodi, Tania Parcero Herrera, Ruxton McClure and Matthew D’Orsi,
under the direction of Maria J. Pereyra. Special thanks should be given to
many other colleagues from the Legal Affairs Division, the Appellate
Body Secretariat, the Rules Division and the Information and External
Relations Division who have assisted in researching, drafting, editing,
proofreading and designing this publication.
xii
ABBREVIATIONS
AB Appellate Body
ACWL Advisory Centre for WTO Law
Anti-Dumping Agreement Agreement on Implementation of Article VI of
the GATT 1994
BCI Business confidential information
Codex Codex Alimentarius Commission
Customs Valuation Agreement Agreement on Implementation of Article VII of
the GATT 1994
DSB Dispute Settlement Body
DS Registry Dispute Settlement Registry
DSU Understanding on Rules and Procedures
Governing the Settlement of Disputes (also
referred to as the Dispute Settlement
Understanding)
ECJ European Court of Justice
FAO Food and Agriculture Organization
GATS General Agreement on Trade in Services
GATT 1947 General Agreement on Tariffs and Trade of 1947
GATT 1994 General Agreement on Tariffs and Trade of 1994
IARC International Agency for Research on Cancer
ICJ International Court of Justice
IGO Inter-governmental organization
IMF International Monetary Fund
MFN Most-favoured-nation
NAFTA North American Free Trade Agreement
NGO Non-governmental organization
OIE World Organisation for Animal Health
RPT Reasonable period of time
RTA Regional trade agreement
SCI Strictly confidential information
SCM Agreement Agreement on Subsidies and Countervailing
Measures
xiii
xiv abbreviations
SPS Agreement Agreement on the Application of Sanitary and
Phytosanitary Measures
TBT Agreement Agreement on Technical Barriers to Trade
TRIMs Agreement Agreement on Trade-Related Investment
Measures
TRIPS Agreement Agreement on Trade-Related Aspects of
Intellectual Property Rights
VCLT Vienna Convention on the Law of Treaties
WCO World Customs Organization
WIPO World Intellectual Property Organization
WTO World Trade Organization
WTO Agreement Marrakesh Agreement Establishing the World
Trade Organization
D I S CL A I M E R
The WTO Secretariat has prepared this publication to assist public

understanding of the WTO dispute settlement system. It does not
constitute an official or authoritative interpretation of the covered agree-
ments, of the cited dispute settlement reports, awards and decisions, or of
the legal significance of any of the other decisions, recommendations and
other documents cited in this publication.
xv
1
Introduction to the WTO Dispute

Settlement System
Importance of the Dispute Settlement System in the WTO

The WTO Agreement1 is a treaty negotiated by dozens of countries over
the seven-year span of the Uruguay Round of multilateral trade negoti-
ations. It comprises agreements setting out a delicate and carefully
achieved balance of rights and obligations for WTO members in respect
of a vast array of measures affecting trade, such as tariffs, internal taxes,
subsidies, sanitary and phytosanitary measures, intellectual property
rights, and services, to name but a few. Some of these agreements were
negotiated and concluded in successive rounds throughout the lifespan
of the General Agreement on Tariffs and Trade (GATT), the predecessor
to the WTO. Others build on and further elaborate previously negotiated
agreements. Except for the plurilateral agreements,2 the WTO Agree-
ment was adopted by the WTO members as a “single undertaking”. This
means that in agreeing to be bound by the WTO Agreement, WTO
members must accept the entirety of the WTO Agreement and may
not pick and choose among the constituent trade agreements. In so
agreeing, WTO members consider the balance of negotiated rights and
obligations across the entirety of the WTO Agreement.
An agreement is the expression of the common intention of the
parties. The larger the agreement and the number of the parties, the
more challenging it is to arrive at a text that captures that common
intention. Compromises in concept and in text are not only inevitable,
1
In WTO law, reference may be made either to the “WTO Agreement” or the “WTO
agreements”. The term “WTO Agreement” refers to the Marrakesh Agreement Establish-
ing the World Trade Organization and its annexes: multilateral and plurilateral trade
agreements (as appropriate), the text of the GATT 1947, and understandings, decisions
and other instruments concluded during the Uruguay Round. The Marrakesh Agreement
is a short agreement containing sixteen articles that set out the institutional framework of
the WTO as an international organization. However, the term “WTO agreements” refers
only to the agreements contained in the annexes to the Marrakesh Agreement.
2
See the section concerning plurilateral trade agreements on page 46.
subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108265423.003
2 a handbook on the wto dispute settlement system
but necessary to allow such large-scale negotiations to conclude. The
WTO Agreement is not immune from such compromises. Once adopted,
even a good-faith implementation of a clear legal text in the domestic law
of parties with a variety of legal traditions and massive differences in
economic and social development could result in divergent and incon-
sistent application of the negotiated agreement, and disagreement
between parties in respect of such divergences. In this sense, disputes
between WTO members in respect of both the scope of negotiated rights
and obligations and the application of disciplines in specific instances are
part and parcel of the normal functioning of such a complex treaty.
Most, if not all, treaties envisage some sort of system for the amicable
settlement of disputes between parties. An effective dispute settlement
system seeks, as a primary objective, to safeguard the negotiated balance
of rights and obligations, thus not only increasing the practical value of
commitments that parties undertake in an agreement, but also – and
crucially – preserving the integrity and legitimacy of the agreement. The
robust dispute settlement system of the WTO, built on the experience of
the GATT in the four decades preceding the establishment of the WTO,
does that, and more. Its mandatory jurisdiction mitigates the imbalances
between stronger and weaker players by having all disputes settled on the
basis of rules rather than power relations. Timely and structured dispute
resolution helps to reduce the detrimental impact of unresolved inter-
national trade conflicts. A permanent, standing Appellate Body provides
for continuity and consistency in the interpretation and application of
rights and obligations.
Against this background, it is not surprising that the WTO dispute
settlement system has, in a little over twenty years, become one of the
most dynamic, effective and successful international dispute settlement
systems in the world. There are, of course, many different benchmarks
to measure effectiveness and success. The following considerations,
however, are instructive:
(a) over 500 disputes3 have been launched, of which 295 have gone
forward to adjudication by panels (and possibly the Appellate
Body).4 In the words of Director-General Roberto Azevêdo, “[i]t is
3
There were 514 requests for consultations by 1 December 2016.
4
This is the total number of disputes for which panels were established as of 1 December
2016. Since some of these disputes may have joint panel proceedings, the number of
disputes that have gone to a panel exceeds the number of panels established. For example,
introduction to the wto ds system 3
unquestionably one of – if not the – most active international
adjudicatory systems in the world. And it still operates faster than
any other”;5
(b) the very existence of the dispute settlement system helps WTO
members to resolve disputes without having to resort to
adjudication;6
(c) there is a high compliance rate in adjudicated disputes;7
(d) the WTO dispute settlement system is remarkably faster than its
international counterparts, with an average time frame for WTO
panel proceedings of around eleven months;8
(e) WTO disputes are not just numerous; they are very diverse in terms
of the legal and factual issues encountered. So far, disputes have
involved measures dealing with issues as varied as internal taxes,
tariffs, custom rules, domestic regulations in areas such as human
in Australia – Tobacco Plain Packaging, a single panel was established to deal with five
separate complaints.
5
See Director-General Roberto Azevêdo’s speech to the Dispute Settlement Body on
28 October 2015 (www.wto.org/english/news_e/spra_e/spra94_e.htm). See also Director-
General Roberto Azevêdo’s speech to the Dispute Settlement Body on 26 September 2014
(www.wto.org/english/news_e/spra_e/spra32_e.htm).
6
For almost half of the disputes initiated at the WTO, it has not been necessary to proceed
beyond the preliminary phases of the adjudicative process; i.e. only 295 disputes, out of
514 initiated thus far, have proceeded to the panel composition phase. In some cases
where there have been decisions by the DSB to establish a panel, the dispute has been
settled before the actual constitution of the panel. In other cases, panels remain in the
composition stage.
7
The WTO dispute settlement system has a remarkable record of compliance with the
decisions (recommendations and rulings) taken by panels and the Appellate Body and
adopted by the DSB. With few exceptions, parties consistently comply with such deci-
sions.
8
This average has been calculated excluding the time it takes to compose a panel and translate
reports into the three official WTO languages (English, French and Spanish). The average
time frame in the International Court of Justice (ICJ) is four years, that of the European
Court of Justice (ECJ) is two years and that of the International Centre for Settlement of
Investment Disputes (ICSID) is three and a half years. Regional dispute settlement mechan-
isms also take longer on average than the WTO. For example, proceedings under NAFTA’s
Chapters 20 and 11 take three and five years, respectively. It is true that some WTO
proceedings have taken longer than eleven months and, in recent years, the average time
frame for a panel process has been closer to a year. Two high-profile cases, EC and certain
member States – Large Civil Aircraft and US – Large Civil Aircraft (2nd complaint), have
taken several years to go through the system, but they are exceptional cases. Moreover, with
respect to appellate proceedings, the average time frame from the date of appeal to the
circulation of the Appellate Body Report is approximately 102 days. In the case of compli-
ance proceedings under Article 21.5 of the DSU, the average time from the referral of the
matter to the circulation of the final report is approximately eight months.
and animal health, environment, services, intellectual property, etc.
While some disputes relate to very technical issues of little interest
to the general public,9 others have dealt with politically sensitive
issues that have attracted considerable public attention. This has
been the case especially with disputes concerning trade and the
environment, such as US – Shrimp, US – Tuna II (Mexico), Brazil –
Retreaded Tyres, EC – Seal Products, Canada – Renewable Energy /
Feed-in-Tariff Program or India – Solar Cells; trade and human
health, such as EC – Hormones, EC – Asbestos, EC – Approval and
Marketing of Biotech Products, US – Clove Cigarettes, Australia –
Tobacco Plain Packaging, Russia – Pigs or Korea – Radionuclides;
consumer protection, such as US – COOL and US – Tuna II
(Mexico); and major industries, such as the lengthy disputes in EC
and certain member States – Large Civil Aircraft and US – Large
Civil Aircraft (2nd complaint); and
(f) WTO disputes are not only diverse in subject matter, but increasingly
diverse in terms of the members engaged in dispute settlement. To
date, 106 members have engaged in the dispute settlement process in
some capacity, and forty-two developing country members have been
involved in dispute settlement as a disputing party.
By any measure, the WTO dispute settlement system has proven to be a
success in its short life.
Functions, Objectives and Key Features of the Dispute

Settlement System
The rules governing dispute settlement in the WTO are, in large part, set
out in the Understanding on Rules and Procedures Governing the
Settlement of Disputes, commonly referred to as the Dispute Settlement
Understanding and abbreviated as “DSU”. Found in Annex 2 of the
WTO Agreement, the DSU builds on rules, procedures and practices
developed over almost half a century under the GATT 1947.
9
Such technical issues include, for example, certain procedural aspects of anti-dumping
investigations, tariff classification and customs valuation, and issues pertaining to
members’ schedules of concessions. See, for instance, Appellate Body Reports, US –
Corrosion-Resistant Steel Sunset Review; EC – Selected Customs Matters; Panel Report,
Russia – Tariff Treatment.
Providing Security and Predictability to the Multilateral
Trading System
A central objective of the WTO dispute settlement system is to provide
security and predictability to the multilateral trading system (Article 3.2
of the DSU). Although international trade is understood in the WTO as
the flow of goods and services between members, such trade is typically
conducted not by States, but by private economic operators. Predictabil-
ity is a signal requirement of the market. Market actors need stability and
predictability in the governing laws, rules and regulations applying to
their commercial activity, especially when they conduct trade on the basis
of long-term transactions. Commercial relations either grind to a halt or
become very expensive in the absence of a stable legal framework, or
where the law governing those relations swings with abandon from case
to case. Security is the measure of members’ confidence in the ability of
the WTO dispute settlement mechanism to determine accurately the will
of WTO members when negotiating and agreeing to be bound by the
WTO Agreement. This is particularly sensitive in a context where
national policies found inconsistent with the WTO Agreement affect
serious matters of industrial and strategic policies, involve hundreds of
millions of dollars in trade or governmental expenditure, and have an
impact on thousands, if not tens of thousands, of jobs.
To achieve these objectives, the DSU provides a framework for a fast,
efficient, dependable and rules-oriented system to resolve disputes
involving the application of the provisions of the WTO Agreement. By
reinforcing the rule of law, the dispute settlement system makes the
international trading system more secure and predictable.10 Where
non-compliance with the WTO Agreement has been alleged by a WTO
member, the dispute settlement system provides for a resolution of the
matter through independent findings rendered by quasi-judicial bodies
and confirmed by the political organs of the WTO. This resolution must
be implemented promptly.
10
WTO rules are “reliable, comprehensible and enforceable” (Appellate Body Reports,
Japan – Alcoholic Beverages II, p. 31). The need to ensure security and predictability in
the WTO dispute settlement system, as contemplated in Article 3.2 of the DSU, implies
that, “absent cogent reasons, an adjudicatory body will resolve the same legal question in
the same way in a subsequent case” (Appellate Body Report, US – Stainless Steel (Mexico),
para. 160). Accordingly, panels are expected to follow the Appellate Body’s conclusions in
earlier disputes, especially where the issues are the same (Appellate Body Report, US – Oil
Country Tubular Goods Sunset Reviews, para. 188).
Preserving the Rights and Obligations of WTO Members
under the WTO Agreement
The WTO dispute settlement system is only open to disputes concerning
the rights and obligations resulting from the provisions of the WTO
Agreement. All disputes concerning the application of the agreements
listed in Appendix 1 of the DSU (Article 1.1 of the DSU) may be brought
before the WTO dispute settlement mechanism. In the DSU, these
agreements are referred to as the “covered agreements”.11
This means that WTO members cannot bring to the WTO dispute
settlement system disputes concerning the rights and obligations encom-
passed in legal provisions outside the covered agreements. It is often the
case, for example, that regional trade agreements (RTAs) incorporate
most-favoured-nation (MFN) and national treatment clauses that are
very similar to Articles I and III of the GATT 1994. Even if the wording
of the provisions reflects that of the relevant WTO provision, disputes
concerning the application of the RTA provisions cannot be brought to
the WTO dispute settlement system. The same is true for other inter-
national treaties as they are not part of the covered agreements.
Typically, a dispute arises when one WTO member adopts a measure
that another member considers to be inconsistent with the obligations set
out in the WTO Agreement or nullifies or impairs benefits arising from
them. In such a case, the latter member is entitled to invoke the proced-
ures and provisions of the WTO dispute settlement system in order to
challenge that measure.
If the parties to the dispute do not manage to reach a mutually agreed
solution, the complainant is guaranteed a rules-based procedure in which
the merits of its claims will be examined by independent adjudicators
(panels and the Appellate Body). If the complainant prevails, the desired
outcome is to secure the removal of the inconsistency with the WTO
Agreement. Compensation and countermeasures (the suspension of con-
cessions or other obligations)12 are available only as secondary and tempor-
ary responses to a violation of the WTO Agreement (Article 3.7 of the DSU).
From the perspective of the complainant, the WTO dispute settlement
system provides a mechanism through which the complainant can obtain
11
Appellate Body Report, Brazil – Desiccated Coconut, p. 13. See footnote 1 in Chapter 1.
See also the section on the notion of “covered agreements” on page 46.
12
See the sections dealing with compensation and countermeasures on pages 139 and 141
respectively.
an independent rules-based determination of its rights and the respond-
ent’s obligations in respect of a given measure, and a multilateral forum
within which to resolve its bilateral trade dispute (Article 23.1 of the
DSU). From the perspective of the respondent, the system provides
protection from a unilateral determination of violation and sanctions,
and the respondent has the opportunity to defend the measure before
independent adjudicators as not violating an obligation, or to justify it
under the exceptions available in the covered agreements (Article 23.2(a)
of the DSU). In this way, the WTO dispute settlement system serves to
preserve all members’ rights and obligations under the WTO Agreement
(Article 3.2 of the DSU).
To achieve its objectives, the WTO dispute settlement system is
required to interpret and apply the provisions of the WTO Agreement
in accordance with customary rules of interpretation of public inter-
national law (Article 3.2 of the DSU).13 In practice, this is done by the
adjudicators of the dispute settlement system (panels, the Appellate
Body, and arbitrators). In doing so, the recommendations and rulings
made by these adjudicators may not “add to or diminish the rights and
obligations provided in the covered agreements” (Articles 3.2 and 19.2 of
the DSU). Indeed, the objective of dispute settlement is to ensure the
correct interpretation and application of provisions of the negotiated
agreements, and not to obtain benefits that have not been negotiated.
Clarification of Rights and Obligations through Interpretation

A dispute typically arises where, in the view of a complainant, a
particular set of facts gives rise to a breach, by a respondent, of a legal
requirement contained in a particular provision of the WTO Agree-
ment. To establish that the respondent has acted inconsistently with its
WTO obligations, a complainant must (i) prove the existence of the set
of facts it alleges; and (ii) demonstrate that the provision at issue creates
an obligation that the respondent, given the facts, is not fulfilling. Like
most municipal laws of general application, the provisions of the WTO
Agreement are often drafted in broad terms so as to be of general
applicability and to cover a multitude of individual cases; it is neither
practical – nor, indeed, possible – to foresee and regulate all specific
cases that may arise in WTO members’ jurisdictions. As well, like all
13
See the section concerning the rules of interpretation on page 7.
other international agreements – and not a few municipal laws – the
WTO Agreement is a text forged in compromise; it is the result of
arduous and contentious negotiations between dozens of countries with
divergent interests and different legal traditions. To make compromise
possible, negotiators sometimes reconcile diverging positions by agree-
ing to a text that can be understood in more than one way. This means
that applying legal provisions to a given set of facts is not always
straightforward. Adjudicators must first determine the meaning of the
legal provision at issue before they can apply it to the facts as they have
been established.
At a most basic level, in determining the meaning of a treaty provision,
the adjudicator seeks to give effect to “the expressed intention of the
parties, that is, their intention as expressed in the words used by them in
the light of the surrounding circumstances”.14 The DSU specifically pro-
vides that this be done “in accordance with customary rules of interpret-
ation of public international law” (Article 3.2 of the DSU). Certain
elements of these rules have been codified in the Vienna Convention on
the Law of Treaties (VCLT), such as those set out in Articles 31, 32 and 33
of the VCLT.15 Panels and the Appellate Body must, in interpreting and
14
Arnold Lord McNair, The Law of Treaties (Clarendon Press, 1961), p. 365. Emphasis in
original. See also Appellate Body Reports, EC – Chicken Cuts, paras. 175–176.
15
The three provisions read as follows:
Article 31 General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall
comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the
parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connec-
tion with the conclusion of the treaty and accepted by the other
parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the inter-
pretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations
between the parties.
4. A special meaning shall be given to a term if it is established that the
parties so intended.
applying the provisions of the WTO, start from these codified
rules.16 Other rules of interpretation in customary international law may
also be relevant in this task.17 The purpose of treaty interpretation, particu-
larly under Article 31 of the VCLT, is to ascertain the common intentions of
the parties, which cannot be done on the basis of “subjective and unilaterally
determined ‘expectations’” of one of the parties to a treaty.18
Article 32 Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including
the preparatory work of the treaty and the circumstances of its conclusion,
in order to confirm the meaning resulting from the application of Article
31, or to determine the meaning when the interpretation according to
Article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
Article 33 Interpretation of treaties authenticated in two or more
languages
1. When a treaty has been authenticated in two or more languages, the text
is equally authoritative in each language, unless the treaty provides or
the parties agree that, in case of divergence, a particular text shall
prevail.
2. A version of the treaty in a language other than one of those in which
the text was authenticated shall be considered an authentic text only if
the treaty so provides or the parties so agree.
3. The terms of the treaty are presumed to have the same meaning in each
authentic text.
4. Except where a particular text prevails in accordance with paragraph 1,
when a comparison of the authentic texts discloses a difference of
meaning which the application of articles 31 and 32 does not remove,
the meaning which best reconciles the texts, having regard to the object
and purpose of the treaty, shall be adopted.
16
Appellate Body Reports, US – Gasoline, p. 17 (Article 31 of the VCLT); Japan – Alcoholic
Beverages II, p. 10 (Article 32 of the VCLT); US – Softwood Lumber IV, para. 59 (Article
33 of the VCLT). The concessions provided for in a WTO member’s schedule are part of
the terms of the treaty and, therefore, “the only rules which may be applied in interpret-
ing the meaning of a concession are the general rules of treaty interpretation set out in the
[VCLT]”. Appellate Body Report, EC – Computer Equipment, para. 84.
17
For instance, the principle of effective treaty interpretation. See page 11.
18
Appellate Body Report, EC – Computer Equipment, para. 84. While the language above is
derived from EC – Computer Equipment (a dispute concerning tariff concessions pro-
vided for in a member’s Schedule), nearly identical language has been used in other
disputes. For instance, in Peru – Agricultural Products, the Appellate Body rejected the
view that a regional trade agreement negotiated between two parties could change the
meaning of Article 4.2 of the Agreement on Agriculture. With multilateral treaties such as
the WTO covered agreements, the “general rule of interpretation” in Article 31 of the
VCLT is aimed at establishing the ordinary meaning of treaty terms reflecting the
common intention of the parties to the treaty, and not just the intentions of some of
In accordance with these principles, the WTO Agreement is to be
interpreted according to the ordinary meaning of the words in the
relevant provision, viewed in their context and in the light of the object
and purpose of the Agreement. The ordinary meaning of a term in a
provision is to be discerned on the basis of the plain text.19 The
definitions of a term provided in dictionaries may well serve as a useful
starting point.20 The “context” includes the text of the treaty, including
its preamble and annexes, as well as certain agreements and instru-
ments relating to the conclusion of the treaty under certain circum-
stances.21 Interpreting a provision in its context refers to the kinds of
conclusions that can be drawn on the basis of, for example, the
structure, content or terminology in other provisions belonging to
the same agreement, particularly those preceding and following the
rule subject to interpretation.22 The “object and purpose” refers to the
explicit or implicit objective of the agreement being applied, or, in
some instances, it may refer to the purpose of the particular provision
being applied.23
the parties. While an interpretation of the treaty may in practice apply to the parties to a
dispute, it must serve to establish the common intentions of the parties to the treaty being
interpreted. See Appellate Body Report, Peru – Agricultural Products, para. 5.95.
19
“Interpretation must be based above all upon the text of the treaty.” Appellate Body
Report, Japan – Alcoholic Beverages II, p. 11. See also, for example, Appellate Body
Report, US – Carbon Steel, para. 62.
20
In this respect, “while a panel may start with the dictionary definitions of the terms to be
interpreted, in the process of discerning the ordinary meaning, dictionaries alone are not
necessarily capable of resolving complex questions of interpretation because they typically
catalogue all meanings of words”. Appellate Body Report, US – Gambling, para. 164. See also
Appellate Body Reports, US – Softwood Lumber IV, para. 59; Canada – Aircraft, para. 153;
EC – Asbestos, para. 92; and China – Publications and Audiovisual Products, para. 348.
21
See Article 31(2) of the VCLT in footnote 15 in Chapter 1. For instance, the Information
Technology Agreement (ITA). Panel Report, EC – IT Products, paras. 7.376–7.383.
22
Context is a necessary element of an interpretative analysis under Article 31 of the VCLT.
Nonetheless, its role and importance in an interpretative exercise depend on the clarity of the
plain textual meaning of the treaty terms. Where the meaning of treaty terms is difficult to
discern, the determination of the ordinary meaning under Article 31 may require more
reliance on the context and the object and purpose of the treaty and, possibly, other elements
considered “together with the context”, as well as the tools mentioned in Article 32 of the
VCLT. Appellate Body Report, Peru – Agricultural Products, para. 5.94.
23
A treaty interpreter must first seek the object and purpose of the treaty in the words of the
provision at issue, read in its context. In those instances where the meaning of the text itself is
equivocal or inconclusive, or where confirmation of the correctness of the reading of the text
itself is desired, the treaty interpreter may have recourse to considerations regarding the
object and purpose of the treaty as a whole. See Appellate Body Report, US – Shrimp,
para. 114. See also Panel Reports, US – Section 301 Trade Act, para. 7.22; India – Patents
The VCLT also permits the interpreter to have recourse to subsequent
agreements24 or practice25 between the parties regarding the interpret-
ation of the treaty or the application of its provisions. Pursuant to Article
31(3)(c) of the VCLT, the interpreter is also required to take into account
any relevant rules of international law applicable in the relations between
the parties.26
A panel or the Appellate Body may have recourse to supplementary
means of interpretation (Article 32 of the VCLT), such as the negotiating
history of an agreement, in order to confirm the meaning resulting from the
application of Article 31 (that is, following an examination of the ordinary
meaning of a provision read in its context and in the light of the object and
purpose of the treaty), or to determine the meaning when an interpretation
according to Article 31 of the VCLT leaves the meaning ambiguous or
obscure or leads to manifestly absurd or unreasonable results.
Furthermore, according to the principle of effective treaty interpret-
ation, all terms of an agreement must be given meaning, and no element
of the text of an agreement shall be reduced to redundancy or inutility.27
Conversely, the process of interpretation does not permit reading words
(US), para. 7.18; US – Underwear, para. 7.18; and Appellate Body Report, Argentina –
Footwear (EC), para. 91.
24
See Article 31(3)(a) of the VCLT in footnote 15 in Chapter 1. For example, certain decisions
of WTO bodies have been found to qualify as subsequent agreements. See, for instance,
Appellate Body Report, US – Tuna II (Mexico), paras. 371–372, concerning the TBT
Committee Decision on Principles for the Development of International Standards, Guides
and Recommendations with Relation to Articles 2, 5, and Annex 3 to the Agreement. See also
Appellate Body Report, US – Clove Cigarettes, paras. 262–269, concerning the Doha Minis-
terial Decision on Implementation-Related Issues and Concerns. However, whether the
decision or other documents produced by a WTO body may in all circumstances be so
considered and used is not at all a given. A determination of such effect depends on the terms
of the document at issue and the provisions in question.
25
Subsequent practice in the sense of Article 31(3)(b) has been recognized as “a ‘concordant,
common and consistent’ sequence of acts . . . sufficient to establish a discernable pattern
implying the agreement of the parties regarding its interpretation. An isolated act is generally
not sufficient to establish subsequent practice.” Appellate Body Report, Japan – Alcoholic
Beverages II, pp. 12–13. Not each and every party must have engaged in a particular practice
for it to qualify as a “common” and “concordant” practice. Appellate Body Report, EC –
Chicken Cuts, para. 259. See also Appellate Body Report, US – Gambling, paras. 192–193.
26
“Rules of international law” in the sense of Article 31(3)(c) of the VCLT corresponds
to the sources of international law in Article 38(1) of the Statute of the ICJ, and thus
includes treaty law, as well as customary rules of international law and general
principles of law. See Appellate Body Report, US – Anti-Dumping and Countervailing
Duties (China), para. 308.
27
Appellate Body Report, US – Gasoline, p. 23.
into an agreement that are not there.28 The interpretative exercise should
yield a harmonious and coherent interpretation that fits comfortably with
the treaty as a whole so as to render the treaty provision legally effect-
ive.29 Finally, according to Article XVI of the Marrakesh Agreement, the
WTO Agreement is authentic in English, French and Spanish; thus, the
principles reflected in Article 33 of the VCLT concerning treaties in
multiple languages apply to the interpretation of the covered
agreements.30
Interpretation of the provisions of the covered agreements by panels and
the Appellate Body in a particular dispute between WTO members is to be
distinguished from an “authoritative interpretation”, which is provided for
in Article IX:2 of the WTO Agreement. That provision stipulates that the
Ministerial Conference and the General Council of the WTO have the
“exclusive authority to adopt interpretations” of the WTO Agreement.
Such “authoritative” interpretations are binding on all WTO members –
unlike interpretations by panels and the Appellate Body in a particular
dispute, which are binding only on the parties to a dispute upon adoption
of the relevant report.31 WTO members have never adopted an “authori-
tative interpretation” pursuant to Article IX:2 of the WTO Agreement.
“Mutually Agreed Solution” as “Preferred Solution”

Although the WTO dispute settlement system is intended to uphold the
rights of WTO members and to clarify the scope of the rights and
obligations and thereby gradually achieve higher levels of security and
predictability, the primary objective of the system is not to make rulings
or to develop jurisprudence. Rather, the priority is to settle disputes,
preferably through a mutually agreed solution that is consistent with the
WTO Agreement (Articles 3.3, 3.6 and 3.7 of the DSU). To date, seventy-
eight mutually agreed solutions have been notified to the WTO.32
28
Appellate Body Reports, India – Patents (US), para. 45; EC – Computer Equipment,
para. 83.
29
Appellate Body Report, US – Continued Zeroing, para. 268. See also Appellate Body
Report, US – Upland Cotton, para. 549.
30
See, for example, Appellate Body Reports, EC – Bed Linen (Article 21.5 – India), fn. 153;
US – Softwood Lumber IV, para. 59 and fn. 50; and Canada – Renewable Energy/Canada –
Feed-in Tariff Program, para. 5.67 and fn. 512.
31
Appellate Body Report, US – Clove Cigarettes, para. 258. See also Appellate Body Report,
EC – Chicken Cuts, para. 273.
32
This number refers to mutually agreed solutions notified pursuant to Article 3.6 of the
DSU as of 1 December 2016. These are not to be confused with the mutually acceptable
Adjudication is to be used only when the parties cannot work out a
mutually agreed solution. By requiring formal consultations as the first
stage of any dispute,33 the DSU provides a framework in which the
parties to a dispute must always at least attempt to negotiate a settlement.
Even when the case has progressed to the stage of adjudication, a bilateral
settlement always remains possible, and the parties are always encour-
aged to make efforts in that direction (Articles 3.7, 5.2, 5.5 and 11 of the
DSU). The content of the mutually agreed solution notified by the parties
to the dispute may determine their rights and obligations with respect to
the dispute settlement proceedings at issue.34
Prompt Settlement of Disputes

The DSU emphasizes that the prompt settlement of disputes is essential if
the WTO is to function effectively and if the balance of rights and
obligations between the members is to be maintained (Article 3.3 of the
DSU). The DSU sets out in considerable detail the procedures and
corresponding deadlines to be followed in resolving disputes. The
detailed procedures are designed to achieve efficiency, including the right
of a complainant to move forward with a complaint in the absence of
agreement by the respondent (Articles 4.3 and 6.1 of the DSU). And, all
solutions on implementation which are sometimes notified to the DSB by members. See
www.wto.org/english/tratop_e/dispu_e/dispu_current_status_e.htm.
33
See the section concerning the consultations stage of the WTO dispute settlement process
on page 50.
34
In EC – Bananas III (Article 21.5 – Ecuador II)/EC – Bananas III (Article 21.5 – US), the
Appellate Body addressed the question of whether the Understandings on Bananas,
which the European Communities had concluded with the United States and with
Ecuador and notified under Article 3.6 of the DSU, prevented the complainants from
subsequently initiating compliance proceedings pursuant to Article 21.5 of the DSU with
respect to the European Communities’ regime for the importation of bananas as
amended. The Appellate Body explained that a mutually agreed solution pursuant to
Article 3.7 may encompass an agreement to forgo the right to initiate compliance
proceedings, or provide for the suspension of the right of recourse to such proceedings,
until the steps agreed upon in the mutually agreed solution have been implemented. Yet,
this need not always be the case. The Appellate Body thus did not consider that “the mere
agreement to a ‘solution’ necessarily implies that parties waive their right to have recourse
to the dispute settlement system” and stated that “there must be a clear indication in the
agreement between the parties of a relinquishment of the right to have recourse”.
Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas
III (Article 21.5 –US), paras. 211–215.
things considered, the dispute settlement system of the WTO functions
relatively quickly.35
If a dispute is adjudicated, it should normally take no more than nine
months from the beginning of the adjudication phase to the adoption of
the report for panel rulings, and no more than one year if the case is
appealed (Article 20 of the DSU). If the complainant deems the dispute
urgent, consideration of the dispute should take even less time (Articles 4.8,
4.9 and 12.8 of the DSU). The time frames related to the resolution of the
dispute itself are generally shorter than those in many other international
State-to-State dispute settlement systems, such as the International Court of
Justice (ICJ), European Court of Justice (ECJ) or the North American Free
Trade Agreement (NAFTA). Indeed, they are in line with domestic civil
cases in most jurisdictions. At the same time, the “implementation” phase
of WTO dispute settlement may add considerable delays to the final
resolution of a dispute.36 This is particularly challenging for complainants
because there is no possibility for an interlocutory injunction: the com-
plainant may still suffer economic harm from the challenged measure
throughout the litigation, and even after prevailing in dispute settlement,
the complainant will receive no compensation for the harm suffered before
the time by which the respondent must implement the ruling.
Over the years, the increase in complexity of the disputes, in both
factual and legal terms,37 the length of the parties’ submissions, the
significant amount of evidence submitted, and limitations on the avail-
ability of panelists and WTO Secretariat staff, have resulted in longer
proceedings. Still, with certain exceptions,38 the average length of WTO
dispute settlement panel proceedings is approximately eleven months.
35
See footnote 8 in Chapter 1 concerning the average time frames in other dispute fora.
36
See the section on the reasonable period of time for implementation on page 132.
37
Parties generally submit a considerable amount of data and documentation relating to the
challenged measure(s), and put forward very detailed legal arguments. They need time to
prepare these factual and legal arguments and to respond to the arguments submitted by
the opponent. The panel assigned to deal with the matter needs to consider all the
evidence and arguments, possibly hear experts, and provide detailed reasoning in support
of its conclusions.
38
With respect to US – Large Civil Aircraft (2nd complaint), from the date of the compos-
ition of the panel (22 November 2006) to the date of the circulation of the panel report
(31 March 2011), the panel proceedings lasted four years, four months, and ten days. See
Panel Report, US – Large Civil Aircraft (2nd complaint), para. 1.5. With respect to EC and
certain member States – Large Civil Aircraft, from the date of the composition of the
panel (17 October 2005) to the date of the circulation of the panel report (30 June 2010),
the panel proceedings lasted four years, eight months, and fourteen days. See Panel
Report, EC and certain member States – Large Civil Aircraft, para. 1.5. Additionally, in
Prohibition against Unilateral Determinations of Violation and
Unilateral Actions
WTO members have agreed that their trade relations should be conducted
in the context of a rules-based, rather than a purely power-based, frame-
work. To that end, they have established a dispute settlement mechanism
equipped with independent, quasi-judicial bodies able to make findings in
respect of alleged breaches by a member of its WTO obligations. They
have undertaken to use that system to settle their WTO trade disputes and
not to take the law into their own hands. They have agreed to abide by the
rules and procedures of the DSU (Article 23 of the DSU).
They have done so because in a trading regime governed by the rule of
law, a dispute about the application of a treaty provision to a given set of
facts should be settled on the basis of facts established before an independ-
ent tribunal and on an interpretation of treaty provisions arrived at by
applying agreed rules, rather than relative power relations. The predictabil-
ity required for the proper functioning of a market economy or for sound
trading relations and investment decisions would be difficult to achieve if
each member could decide on its own whether another member was in
breach, and subsequently impose retaliatory measures. A member’s secur-
ity in negotiated rights and obligations would be seriously, perhaps fatally,
compromised if the content of those rights and obligations were to be
determined unilaterally by another member. Practically speaking, in the
absence of a prohibition on unilateral action, trading relations could
descend into either rule by a hegemon or an all-out trade war.
The DSU establishes the WTO dispute settlement system as the
exclusive forum for the resolution of disputes seeking to redress a viola-
tion of the covered agreements and requires adherence to its rules
(Article 23.1 of the DSU).39 This applies to situations in which a member
believes that another member violates a covered agreement or otherwise
EC and certain member States – Large Civil Aircraft (Article 21.5 – United States) from the
date of the composition of the panel (17 April 2012) to the date of the circulation of the
panel report (22 September 2016), the panel proceedings lasted four years, five months,
and five days. See EC and certain member States – Large Civil Aircraft (Article 21.5 –
United States), para. 1.15.
39
Article 23.1 of the DSU imposes a general obligation on members to redress a violation of
obligations or other nullification or impairment of benefits under the covered agreements
only by recourse to the rules and procedures of the DSU, and not through unilateral
action. Appellate Body Report, US – Certain EC Products, para. 111. See also Appellate
Body Reports, US – Continued Suspension/Canada – Continued Suspension, para. 371.
nullifies or impairs benefits under that agreement or impedes the attain-
ment of an objective of one of the agreements.40
The DSU further provides some examples of unilateral actions that are
prohibited. For instance, a WTO member cannot take action based on its
unilateral determination that any of the above situations exist, but may
only act after recourse to dispute settlement under the rules and proced-
ures of the DSU. Whatever actions that a member takes, it may only take
them based on the findings of an adopted panel or Appellate Body report
or arbitration award (Article 23.2(a) of the DSU). A WTO member must
also respect the procedures foreseen in the DSU for the determination of
the time period for implementation.41 Finally, a WTO member must
only impose countermeasures on the basis of an authorization by the
Dispute Settlement Body (DSB) (Article 23.2(b) and (c) of the DSU).
Exclusive and Compulsory Jurisdiction

By mandating recourse to the multilateral system of the WTO for the
settlement of disputes, Article 23 of the DSU not only excludes unilateral
action, but also precludes the use of other fora for the resolution of a
WTO-related dispute.42
The WTO dispute settlement system is also compulsory. All members
are subject to it, as they have all signed and ratified the WTO Agreement
as a single undertaking,43 of which the DSU is a part. The DSU subjects
all WTO members to the dispute settlement system for all disputes
arising under the WTO Agreement. Therefore, unlike most other systems
of international dispute resolution, there is no need for the parties to a
dispute to accept the jurisdiction of the WTO dispute settlement system
in a separate declaration or agreement. This consent to accept the
jurisdiction of the WTO dispute settlement system is set out in the
DSU itself, as well as in each newly acceding member’s protocol of
40
See the section on what can be challenged before the WTO dispute settlement system on
page 40.
41
42
Appellate Body Reports, US – Continued Suspension / Canada – Continued Suspension,
para. 371.
43
The single undertaking in this context means that the WTO Agreement had to be signed
in its totality (except for the Plurilateral Trade Agreements in Annex 4). Signatories were
not allowed to sign only individual parts of the entire package. The concept of a “single
undertaking” also has a legal meaning relating to the harmonious interpretation of the
WTO Agreement as a whole. See page 12.
accession. As a result, every WTO member enjoys guaranteed access to
the WTO dispute settlement system, and no respondent may escape that
jurisdiction.
Given the rise in preferential trade agreements, WTO members
sometimes have the option of taking a dispute either to the relevant
regional dispute settlement adjudicatory institutions or to the WTO
dispute settlement system. For a WTO member in this situation,
choice-of-forum considerations are complex and depend, among other
things, on the scope of obligations, the effectiveness of the forum, and
relevant diplomatic considerations. It is not unusual for disputes under
a RTA and the WTO to be (or alleged to be) linked in some way, or for
rulings in one forum to spill over into the other.44 For a variety of legal
and institutional reasons, in a few cases WTO members that are also
parties to RTAs and that have a real choice of forum have preferred to
invoke the WTO dispute settlement system.45 Given the compulsory
nature of the WTO dispute settlement system, panels and the Appellate
Body have exercised jurisdiction over such matters under the covered
agreements that were properly brought before them under the DSU.
A decision by a panel to decline to exercise validly established jurisdic-
tion would seem to “diminish” the right of a complainant to “seek the
redress of a violation of obligations” within the meaning of Article 23 of
the DSU, and to bring a dispute pursuant to Article 3.3 of the DSU. This
would not be consistent with a panel’s obligations under Articles 3.2
and 19.2 of the DSU.46
An Integrated Set of Rules and Procedures

The DSU is a coherent and integrated system of rules and procedures for
dispute settlement that applies to disputes brought pursuant to the con-
sultation and dispute settlement provisions of the covered agreements,47 as
44
See, for instance, Appellate Body Reports, Mexico – Taxes on Soft Drinks, paras. 40–57;
Peru – Agricultural Products, paras. 5.15–5.28 and 5.81–5.117; and Argentina – Poultry
Anti-Dumping Duties, paras. 7.17–7.42.
45
C. Chase, A. Yanovich, J.-A. Crawford, and P. Ugaz, WTO Staff Working Paper ERSD-
2013-07, “Mapping of Dispute Settlement Mechanisms in Regional Trade Agreements –
Innovative or Variations on a Theme?”, 10 June 2013, p. 47; G. Marceau, “The primacy of
the WTO dispute settlement system”, Questions of International Law (Zoom In), Vol. 23
(2015), 3–13, p. 13.
46
Appellate Body Report, Mexico – Taxes on Soft Drinks, para. 53.
47
Appellate Body Report, Guatemala – Cement I, para. 64.
well as to disputes concerning the rights and obligations under the provi-
sions of the WTO Agreement and of the DSU (in isolation or in combin-
ation with any other covered agreement).48 It puts an end to the former
“GATT à la carte”, where each agreement not only had a different set of
signatories but also separate dispute settlement rules.49 Therefore, subject
to certain exceptions, the DSU is applicable in a uniform manner to
disputes under all the covered agreements. As indicated, in addition to
the rules and procedures in the DSU, there are a number of provisions on
“consultation and dispute settlement” in other covered agreements, as
follows:
– Articles XXII and XXIII of the GATT 1994;
– Article 19 of the Agreement on Agriculture;
– Article 11 of the Agreement on the Application of Sanitary and
Phytosanitary Measures (SPS Agreement);
– Article 8.10 of the Agreement on Textiles and Clothing;
– Article 14 of the Agreement on Technical Barriers to Trade (TBT
Agreement);
– Article 8 of the Agreement on Trade-Related Investment Measures
(TRIMs Agreement);
– Article 17 of the Agreement on Implementation of Article VI of the
GATT 1994 (Anti-Dumping Agreement);
– Article 19 of the Agreement on Implementation of Article VII of the
GATT 1994 (Customs Valuation Agreement);
– Articles 7 and 8 of the Agreement on Preshipment Inspection;
– Articles 7 and 8 of the Agreement on Rules of Origin;
– Article 6 of the Agreement on Import Licensing Procedures;
– Articles 4 and 30 of the Agreement on Subsidies and Countervailing
Measures (SCM Agreement);
– Article 14 of the Agreement on Safeguards;
– Articles XXII and XXIII of the General Agreement on Trade in Services
(GATS); and
– Article 64 of the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS Agreement).50
48
Article 1.1 of the DSU. For the concept of covered agreements, see page 46.
49
See Annex X on the GATT 1947 dispute settlement system on page 326.
50
The text of these provisions can be found in Annex II, “Special or Additional Rules and
Procedures Contained in the Covered Agreements in Force (Appendix 2 of the DSU)”
(page 227).
For example, a request for consultations, which officially initiates
WTO dispute settlement proceedings, concerning a measure allegedly
inconsistent with substantive obligations contained in the SPS Agree-
ment, must be made pursuant to the relevant provision of the DSU
(i.e. Article 4) but also under the relevant provision in the SPS Agreement
(i.e. Article 11).
Many of these consultation and dispute settlement provisions simply
refer to Articles XXII and XXIII of the GATT 1994,51 or have been
drafted using those provisions as a model. A dispute can be, and often
is, brought under more than one covered agreement. In such a case, the
question of the proper legal basis has to be assessed separately for the
claims made under different agreements.
In addition, there are so-called “special and additional rules and
procedures” on dispute settlement contained in the covered agreements
(Article 1.2 and Appendix 2 of the DSU).52 These are specific rules and
procedures “designed to deal with the particularities of dispute settlement
relating to obligations arising under a specific covered agreement”:53
– Article 11.2 of the SPS Agreement;
– Articles 2.14, 2.21, 4.4, 5.2, 5.4, 5.6, 6.9, 6.10, 6.11, and 8.1 through 8.12
of the Agreement on Textiles and Clothing;
– Articles 14.2 through 14.4 and Annex 2 of the TBT Agreement;
– Articles 17.4 through 17.7 of the Anti-Dumping Agreement;
– Articles 19.3 through 19.5, Annex II.2(f), 3, 9 and 21 of the Customs
Valuation Agreement;
– Articles 4.2 through 4.12, 6.6, 7.2 through 7.10, 8.5, footnote 35, 24.4,
27.7, and Annex V of the SCM Agreement;
– Articles XXII:3 and XXIII:3 of the GATS and Article 4 of both the
Annex on Financial Services and the Annex on Air Transport Services
within that Agreement; and
– Articles 1 through 5 of the Decision on Certain Dispute Settlement
Procedures for the GATS.
51
This is the case for all the provisions listed above, except: Article 8.10 of the Agreement
on Textiles and Clothing, Article 17 of the Anti-Dumping Agreement, Article 19 of the
Customs Valuation Agreement, Article 4 of the SCM Agreement and Articles XXII and
XXIII of the GATS.
52
Examples of special and additional rules and procedures are those included in Article 11.2
of the SPS Agreement, Articles 17.4 to 17.7 of the Anti-Dumping Agreement and Annex
V of the SCM Agreement. See Annex II, “Special or Additional Rules and Procedures
Contained in the Covered Agreements in Force (Appendix 2 of the DSU)” (page 227).
53
Special and additional rules and procedures take precedence over the
rules in the DSU to the extent that there is a difference or inconsistency
between the two (Article 1.2 of the DSU). Such a difference or inconsist-
ency between the DSU and the special rules exists only “where the
provisions of the DSU and the special or additional rules and procedures
of a covered agreement cannot be read as complementing each other”54
because they are mutually inconsistent, such that adherence to one
provision would lead to a violation of the other provision; that is, in
the case of a conflict between them. Only in that case and to that extent
do the special additional provisions prevail and the DSU rules not apply.
The DSU also addresses the particular situation of developing country
members (Articles 12.10 and 12.11 of the DSU) as well as least-developed
country members (Article 24 of the DSU), although the approach taken
differs from that of the other covered agreements. Unlike those agree-
ments, which set out the members’ substantive trade obligations, the
DSU chiefly specifies the procedures under which such substantive
obligations can be enforced. Accordingly, in the WTO dispute settlement
system, special and differential treatment55 does not take the form of
reducing obligations, providing enhanced substantive rights or granting
transition periods. Rather, it takes a procedural form, for instance, by
making available to developing country members additional or privileged
procedures, or longer or accelerated deadlines.56 The rules on special and
differential treatment and other aspects of developing country members’
roles in the dispute settlement system are the subject of a separate
chapter of this Handbook.57
54
Appellate Body Report, Guatemala – Cement I, paras. 65–66.
55
“Special and differential treatment” is a technical term used throughout the WTO
Agreement to designate those provisions that are applicable only to developing country
members. See the section dealing with special and differential treatment on page 176.
56
See the section dealing with special and differential treatment on page 176.
57
See Chapter 8 concerning developing country members in the WTO dispute settlement
system.
2
Actors in the WTO Dispute Settlement Process
The operation of the WTO dispute settlement process involves a number

of actors. The primary actors are WTO members themselves, as parties
and third parties. In addition, a number of WTO bodies are involved in
dispute settlement. Among these, one can distinguish between a political
institution, the DSB, and independent, quasi-judicial bodies such as
panels, the Appellate Body and arbitrators. Sometimes, external partici-
pants such as independent experts or specialized institutions may also
play a role in the proceedings. In addition, non-state actors such as non-
governmental organizations (NGOs) and industry associations are
becoming increasingly present in WTO dispute settlement proceedings
via amicus curiae submissions1 to panels and to the Appellate Body, as
well as via other types of actions as described on page 23.
This chapter provides an introduction to these various participants.
The precise tasks and roles of each are described in a later chapter on the
stages of the dispute settlement process.2
Parties and Third Parties

Only WTO members may participate as parties or third parties in the
WTO dispute settlement system.
Parties
Only WTO members may initiate dispute settlement proceedings under
the DSU. Members enjoy broad discretion in deciding whether to bring a
1
Amicus curiae means “friend of the court” and the term “amicus curiae brief” stands for a
submission from sources other than a party or third party in panel proceedings, or other
than a participant or third participant in an appeal. Black’s Law Dictionary, 8th edition,
B. Garner (ed.) (West, 2004), p. 93.
2
See Chapter 4 covering the typical stages of a WTO dispute.
21
dispute under the DSU. The WTO Secretariat, WTO observer countries,
other international organizations, regional or local governments, NGOs,
firms or individuals are not entitled to initiate WTO dispute settlement
proceedings. WTO members may, however, be represented before panels
and the Appellate Body by external representatives.3
The DSU sometimes refers to the member bringing the dispute as the
“complaining party” or the “complainant”. In this Handbook, we use
the term “complainant”. The DSU also speaks of “responding party” and
the “member concerned” (with respect to matters of implementation). In
practice, the terms “respondent” or “defendant” are commonly used.
This Handbook uses the term “respondent”.
Third Parties
Other WTO members that have an interest in a dispute may take part
in the proceedings as “third parties” (also referred to as “third partici-
pants” at the appellate stage). The rights of third parties at various
stages of dispute settlement proceedings are described on pages 55, 66
and 109.
No Direct Access for Non-State Actors

Only WTO member governments may initiate disputes or participate
directly in a dispute. Private individuals or companies do not have
direct access to the dispute settlement system, even if they may often
be those most directly and adversely affected (as exporters or import-
ers) by the measures allegedly violating the covered agreements. The
same is true of NGOs with a general interest or special expertise in a
matter before the dispute settlement system – they may not initiate
WTO dispute settlement proceedings or participate directly in such
disputes.
Of course, companies, associations, or NGOs can, and often do, exert
influence or even pressure on the government of a WTO member to
initiate a dispute or defend an impugned measure. Indeed, several WTO
members have formally adopted internal legislation under which private
3
See the section on representation by external counsel and the Advisory Centre for WTO
Law (ACWL) on page 181.
actors in the wto ds process 23
parties may formally petition their governments to bring a dispute to the
WTO.4 They may also engage in dispute settlement proceedings by filing
amicus curiae submissions5 with WTO adjudication bodies.
There are divergent views among members on the extent to which
private entities may or should play a role in WTO dispute settlement
proceedings. For the time being, panels and the Appellate Body have the
discretion to accept or reject amicus curiae submissions, and are not
obliged to consider them.6 Private entities have no other direct access to
the WTO dispute settlement mechanism.
Other inter-governmental organizations (IGOs) also may not
bring disputes to the WTO dispute settlement system. They may,
however, provide assistance and expert evidence in certain disputes.7
In this respect, a number of provisions within the covered agree-
ments refer explicitly or implicitly to norms and standards from
other IGOs.8
4
For example, WTO members such as the United States (Sections 301 et seq. of the United
States Trade Act of 1974) or the European Union (Council Regulation (EC) No. 3286/94)
have adopted legislation that allows the private sector to seek the initiation of WTO
dispute settlement proceedings. Disputes such as Korea – Commercial Vessels, India –
Wines and Spirits, Brazil – Retreaded Tyres and China – Measures Concerning Wind Power
Equipment, have been brought before the WTO through those mentioned legal
instruments.
5 6
See footnote 1 in Chapter 2 for a definition of amicus curiae briefs. See page 163.
7
Dispute settlement panels may seek information from other international organizations
whose expertise is relevant to the subject matter of the case. See page 36.
8
See, for instance, Article 5 of the TRIPS Agreement (referring to the multilateral
agreements concluded under the auspices of the World Intellectual Property Organiza-
tion (WIPO)); Article 1.1 of the TBT Agreement (providing that definitions adopted
within the UN system and by international standardizing bodies must be taken into
account in the interpretation of the TBT Agreement); the first paragraph of Annex 1 of
the TBT Agreement (referring to the document adopted by the International Organiza-
tion for Standardization (ISO) and the International Electrotechnical Commission
(IEC) – ISO/IEC Guide 2: 1991, General Terms and Their Definitions Concerning
Standardization and Related Activities); Article 11.2 of the SPS Agreement (providing
that in SPS-related disputes a panel may “consult the relevant international organiza-
tions, at the request of either party to the dispute or on its own initiative”); Annex A.3 of
the SPS Agreement (containing a list of relevant international standardizing bodies,
such as the Codex Alimentarius Commission (Codex), the World Organisation for
Animal Health (OIE, formally known as the International Office of Epizootics), and the
Secretariat of the International Plant Protection Convention); and Article 3.2 of the SPS
Agreement (providing that compliance with international standards, guidelines or
recommendations creates a presumption of consistency with the SPS Agreement and
the GATT 1994).
The Dispute Settlement Body (DSB)
Composition and Functions
The General Council discharges its responsibilities under the DSU
through the DSB (Article IV:3 of the WTO Agreement). Like the General
Council, the DSB is composed of representatives of all WTO members.
These are governmental representatives, in most cases diplomatic dele-
gates who reside in Geneva (where the WTO is based) and who typically
belong to either the trade or the foreign affairs ministry of the WTO
member they represent. As government officials, they receive instructions
from their capitals on the positions to take, and the statements to make,
in the DSB. As such, the DSB is a political body.
The DSB is responsible for administering the DSU, i.e. for overseeing
the entire WTO dispute settlement process.9 It has the authority to
establish panels, adopt panel and Appellate Body reports, maintain
surveillance of implementation of rulings and recommendations, and
authorize the suspension of obligations under the covered agreements
(Article 2.1 of the DSU). Chapters 4 and 5 on the stages of the dispute
settlement procedure will discuss what these actions mean. In less tech-
nical terms, the DSB is responsible for the referral of a dispute to adjudi-
cation (establishing a panel); for making the adjudicative decision
binding on the parties to the dispute (adopting the panel and Appellate
Body reports); generally, for supervising the implementation of the
ruling; and for authorizing countermeasures when a member does not
comply with the ruling.
The DSB meets as often as is necessary to adhere to the time frames
provided for in the DSU (Article 2.3 of the DSU). In practice, the DSB
usually has one regular meeting per month. When a member so requests,
the Director-General convenes additional special meetings. The staff of
the WTO Secretariat provides administrative support for the DSB.
Decision-making in the DSB

The general rule is for the DSB to take decisions by consensus (Article 2.4
of the DSU). Consensus is achieved if no WTO member, present at the
9
B. Mueller-Holyst, “The WTO dispute settlement body: Procedural aspects of its oper-
ation”, in G. Marceau (ed.), A History of Law and Lawyers in the GATT/WTO: The
Development of the Rule of Law in the Multilateral Trading System (Cambridge University
Press, 2015), p. 264.
meeting when the decision is taken, formally objects to the proposed
decision (footnote 1 to Article 2.4 of the DSU).10 This means that the
chairperson does not actively ask every delegation whether it supports
the proposed decision, nor is there a vote. The chairperson asks, for
example, whether the decision can be adopted, and if no member
opposes the adoption, the chairperson will announce that the decision
has been taken or adopted. Where a WTO member intends to block a
decision, it must be present at the meeting and must raise its flag and
voice opposition when the relevant decision is to be taken. Where a
decision is made by consensus, any member may, even alone, prevent
the adoption of that decision.
However, when the DSB establishes panels, adopts panel and Appel-
late Body reports, and authorizes countermeasures, the decision is
approved unless there is a consensus against it (Articles 6.1, 16.4, 17.14
and 22.6 of the DSU). This special decision-making procedure is com-
monly referred to as “negative” or “reverse” consensus. At these three
important stages of the dispute settlement process – panel establish-
ment,11 adoption of reports,12 and authorization of countermeasures13 –
the DSB must approve the action or decision proposed, unless there is a
consensus not to do so. This means that one member or even a group of
members cannot prevent these decisions (to establish a panel, adopt a
report, or authorize countermeasures) from being taken. The negative
consensus rule requires that all members present at the meeting oppose
the proposed action or decision in order to prevent it from being
approved.
No WTO member (including the affected or interested parties) is
excluded from participation in the decision-making process. This means
that the member requesting the establishment of a panel, the adoption of
the report, or the authorization of countermeasures, can ensure that its
request is approved by merely placing it on the agenda of the DSB. In the
case of the adoption of panel and Appellate Body reports, there is usually
at least one party which, having prevailed in the dispute, has a strong
interest in the adoption of the report(s). Under the negative consensus
rule, any member intending to block the decision to adopt the report(s)
has to persuade all other WTO members (including the adverse party)
present at the DSB meeting to join its opposition or at least to remain
passive. Therefore, a negative or reverse consensus is largely a theoretical
10 11
See also footnote 1 to Article IX:1 of the WTO Agreement. See page 57.
12 13
See page 125. See page 141.
possibility and, to date, has never occurred in the WTO. For this reason,
one speaks of the quasi-automaticity of these decisions in the DSB. This
contrasts sharply with the situation that prevailed under the GATT 1947,
when panels could be established, their reports adopted and counter-
measures authorized only on the basis of a positive consensus. Unlike
under the GATT 1947, the DSU thus provides no opportunity for
individual members to block decisions on these important matters.
Negative or reverse consensus applies nowhere else in the WTO
decision-making framework.14
When the DSB administers the dispute settlement provisions of a
plurilateral trade agreement (Annex 4 of the WTO Agreement), only
WTO members that are parties to such an agreement may participate in
decisions or actions taken by the DSB with respect to disputes initiated
under these agreements (Article 2.1 of the DSU).
As for the more practical aspects of the DSB’s work, the Rules of
Procedure for Meetings of the DSB15 provide that the Rules of Procedure
for Sessions of the Ministerial Conference and Meetings of the General
Council16 apply, subject to a few special rules on the chairperson and
except as otherwise provided in the DSU. An important organizational
aspect of these general rules is the requirement for members to file items
to be included on the agenda of an upcoming meeting no later than on
the working day before the day on which the notice of the meeting is to
be issued, which is at least ten calendar days before the meeting.17 In
practice, this means that items for the agenda must be identified on the
eleventh day before the DSB meeting, or on the twelfth or thirteenth day
if the eleventh day falls on a Saturday or Sunday.18
Role of the DSB Chairperson

The DSB has its own chairperson (Article IV:3 of the WTO Agreement),
who is usually one of the Geneva-based ambassadors, i.e. a head of
mission of a member’s permanent representation to the WTO. The
chairperson is appointed by a consensus decision of WTO members.
14
With the exception of some voting requirements for actions such as waivers, authoritative
interpretations or treaty amendments (Articles IX and X of the WTO Agreement), the
WTO follows the GATT practice of decision-making by consensus (Article IX:1 of the
WTO Agreement).
15 16
See WT/DSB/9, 16 January 1997. See WT/L/161, 25 July 1996.
17
See Rule 3 of the Rules of Procedure of the General Council (WT/L/161).
18
See WT/DSB/6, which is included in Annex VI.
The chairperson of the DSB has mainly procedural and managerial
functions, that is, passing information to the members, chairing the
meeting, calling up and introducing the items on the agenda, giving
the floor to delegations wishing to speak, proposing a decision, and, if
the decision is adopted, announcing the adoption of the decision. The
chairperson of the DSB is also the addressee of members’ communi-
cations to the DSB. The DSB chairperson may be called upon to make
“rulings” but, in practice, there have been very few of these.
In addition, the DSB chairperson has several responsibilities in specific
situations. For instance, the DSB chairperson determines, upon request
by a party and in consultation with the parties to the dispute, the rules
and procedures in disputes involving several covered agreements with
conflicting “special or additional rules and procedures”19 if the parties
cannot agree on the procedure within twenty days (Article 1.2 of the
DSU). The DSB chairperson can also be authorized by the DSB to draw
up special terms of reference for panels pursuant to Article 7.3 of the
DSU.20 The DSB chairperson is further entitled to extend, after consult-
ation with the parties, the time period for consultations involving a
measure taken by a developing country member, if the parties cannot
agree that the consultations have concluded (Article 12.10 of the DSU).
In dispute settlement cases involving a least-developed country member,
such a member can request the DSB chairperson to offer his/her good
offices, conciliation and mediation before the case goes to a panel (Article
24.2 of the DSU).21 Lastly, the DSB chairperson is consulted before the
Director-General determines the composition of the panel under Article
8.7 of the DSU,22 and before the Appellate Body adopts or amends its
Working Procedures (Article 17.9 of the DSU).23
The WTO Secretariat

The Director-General of the WTO
The Director-General of the WTO may, acting in an ex officio capacity,
offer his/her good offices, conciliation or mediation with a view to
19
See the section on special or additional rules and procedures on page 17.
20
See the section on a panel’s terms of reference on page 64.
21
See the section on good offices, conciliation and mediation on page 171, and the section
on special dispute settlement provisions for least-developed country members.
22
See the section on panel composition on page 71.
23
See Annex V on page 280 for the Working Procedures for Appellate Review.
assisting members to settle a dispute (Article 5.6 of the DSU).24 In a
dispute settlement procedure involving a least-developed country
member, when no satisfactory solution has been found during consult-
ations, the Director-General will, upon request by the least-developed
country member, offer his or her good offices, conciliation or mediation
in order to help the parties resolve the dispute, before a request for a
panel is made (Article 24.2 of the DSU).25
The Director-General convenes the meetings of the DSB and appoints
panel members upon the request of either party, and in consultation with
the chairperson of the DSB and the chairperson of the relevant council or
committee, where the parties cannot agree on the composition of panels
within twenty days (Article 8.7 of the DSU).26 The Director-General also
appoints the arbitrator(s) for the determination of the reasonable period of
time for implementation, if the parties cannot agree on the period of time
and on the arbitrator (footnote 12 to Article 21.3(c) of the DSU).27
Furthermore, the Director-General appoints arbitrators for the review of
the proposed countermeasures in the event of non-implementation (Art-
icle 22.6 of the DSU), if the original panelists are unavailable.28
The WTO Secretariat Staff

The WTO Secretariat staff, which reports to the Director-General, assists
WTO members in respect of dispute settlement at the member’s request
(Article 27.2 of the DSU). It also conducts special training courses
(Article 27.3 of the DSU) and provides additional legal advice and
assistance to developing country members in matters relating to dispute
settlement within the parameters of impartiality called for by Article 27.2
of the DSU.29
Additionally, the WTO Secretariat assists parties in composing panels
by proposing nominations of potential panelists to hear the dispute
(Article 8.6 of the DSU), assists panels once they are composed (Article
27.1 of the DSU)30 and provides administrative support to the DSB.
24
See the section on good offices, conciliation and mediation on page 171.
25
See the section on good offices, conciliation and mediation on page 171.
26
27
28
See the section on arbitration pursuant to Article 22.6 of the DSU on page 147.
29
See the section on legal assistance to developing countries on page 180.
30
See the section on administrative and legal support to panels by the WTO Secretariat on
page 30.
The WTO Dispute Settlement Registry
In addition to providing legal and administrative staff to assist panels in
their work, the WTO Secretariat maintains a WTO Dispute Settlement
Registry (“DS Registry”), which contains records of past and ongoing
WTO disputes. At the time of completing the second edition of this
Handbook, the WTO Secretariat, in consultation with the members, has
developed a Digital Dispute Settlement Registry that maintains all files
and other relevant information from WTO disputes in a secure,
encrypted database. The Digital Dispute Settlement Registry also allows
parties to file their submissions and other documents electronically via a
secure, password-protected web-based portal.
Panels
Functions and Composition of Panels
Panels are quasi-judicial bodies that adjudicate disputes between WTO
members in the first instance. The panel in a specific dispute must review
the factual and legal aspects of the dispute and submit a report to the
DSB expressing its conclusions on whether the claims of the complainant
are well founded and the measures being challenged are WTO-
inconsistent. If the panel finds that the claims are indeed well founded
and that there have been breaches of WTO obligations by a member, it
makes recommendations for implementation by the respondent (Articles
11 and 19 of the DSU).
Panels are normally composed of three, and exceptionally five,31
experts selected on an ad hoc basis.32 This means that there is no
permanent panel at the WTO; rather, a different panel is composed for
each dispute. Anyone who is well qualified and independent (Articles 8.1
and 8.2 of the DSU) can serve as a panelist. Article 8.1 of the DSU
mentions as examples persons who have served on or presented a case to
a panel; served as a representative of a member or of a contracting party
to the GATT 1947 or as a representative to the council or committee of
any covered agreement or its predecessor agreement; worked in the
Secretariat; taught or published on international trade law or policy;
or served as a senior trade policy official of a member. The WTO
Secretariat maintains an indicative list of names of governmental and
31
Until now, panels have only ever been composed of three individuals.
32
non-governmental persons, from which panelists may be drawn (Article
8.4 of the DSU). WTO members regularly propose names for inclusion in
that list, and, in practice, the DSB always approves their inclusion
without debate. It is not necessary, however, to be on the list to be
proposed as a potential panelist in a specific dispute. Although some
individuals may have served on more than one panel, there is no insti-
tutional continuity of personnel between the different ad hoc panels.
Whoever is appointed as a panelist serves independently and in an
individual capacity, and not as a government representative or as a
representative of any organization (Article 8.9 of the DSU).
As of 1 December 2016, individuals from fifty-nine different WTO
members have served as panelists. Of these WTO members, twenty-three
are developed, thirty-four are developing and two are least-developed
countries.33 Canada and New Zealand lead the developed country
members’ list with twenty-four and twenty nationals respectively, having
served as panelists, some more than once. Chile and South Africa lead the
developing country members’ list, with fourteen panelists each, some
more than once. All told, 276 different people have served as panelists.
More than one half of them have come from developing country
members.34
For further details on the panel composition stage within the panel
review process, see page 71.
Administrative and Legal Support to Panels and Arbitrators

The WTO Secretariat is responsible for the administrative aspects of the
dispute settlement procedures, as well as for assisting panels on the legal
and procedural aspects of the dispute (Article 27.1 of the DSU). This
includes dealing with the panel’s logistical arrangements35 as well as
providing them with legal and expert support on the issues arising in a
33
The two panelists from least-developed country members were from Bangladesh and
Zambia.
34
This includes panelists of original panels, Article 21.5 compliance panels and Article 22.6
arbitration proceedings. It does not include those panelists who have been replaced
during the course of the panel proceedings unless they have been a panelist in another
dispute. Of the total number of panelists, 129 were from developed countries, 121 were
from developing countries and two were from least-developed countries.
35
For instance, organizing the panelists’ travel to Geneva, where panel meetings take place,
preparing the letters inviting the parties to meetings with the panels, receiving the
submissions and forwarding them to the panelists, etc.
dispute, including the jurisprudence of past panels and the Appellate Body.
The Secretariat team36 assisting a panel usually consists of at least one legal
officer and one panel secretary. Both the legal officer and the panel
secretary may be staff members from the Legal Affairs Division or the
Rules Division, depending largely on the subject matter of the dispute.
Frequently, the Secretariat team assisting the panel includes one or more
staff members from the division or divisions of the WTO Secretariat
responsible for the covered agreement(s) invoked by the complainant.37
The success of the WTO dispute settlement system has resulted in
increases in the workload of the WTO Secretariat divisions responsible
for assisting panels and arbitrators.38
Appellate Body
The Role of the Appellate Body
In the hierarchical structure contemplated in the DSU, panels and the
Appellate Body have distinct roles to play. The Uruguay Round estab-
lished the Appellate Body as a standing body to strengthen dispute
settlement in the multilateral trading system.39 The Appellate Body is a
permanent body of seven members entrusted with the task of reviewing
the legal aspects of the reports issued by panels (Article 17.1 of the DSU).
The Appellate Body is thus the second and final stage in adjudication
under the dispute settlement system. The addition of this second adju-
dicatory stage was one of the major innovations of the Uruguay Round of
multilateral trade negotiations in the area of dispute settlement.
One important reason for the creation of the Appellate Body is the
quasi-automatic nature of the adoption of reports since the inception of
36
As explained on page 38, the staff of the WTO Secretariat involved in dispute settlement
is subject not only to the WTO Staff Rules of Conduct but also to the DSU Rules of
Conduct. In addition, legal staff who are members of a municipal Bar may also be subject
to domestic rules of professional ethics.
37
For instance, the Services and Investment Division for GATS disputes, the Intellectual
Property Division for TRIPS disputes, the Agriculture and Commodities Division for
disputes on the Agreement on Agriculture and the SPS Agreement, the Trade and
Environment Division for TBT disputes, or the Economic Research and Statistics Div-
ision for arbitrations under Article 22.6 of the DSU.
38
See Director-General Roberto Azevêdo’s speeches to the Dispute Settlement Body on
26 September 2014 (www.wto.org/english/news_e/spra_e/spra32_e.htm) and 28 October
2015 (www.wto.org/english/news_e/spra_e/spra94_e.htm).
39
Appellate Body Report, US – Stainless Steel (Mexico), para. 161.
the DSU.40 In the current dispute settlement system, individual WTO
members are no longer able to prevent the adoption of a panel report
unless all other members present at the DSB meeting decide by consen-
sus not to adopt the report (Article 16.4 of the DSU). As a result, the
adoption of panel reports is virtually automatic. This takes away not only
the previous possibility that the “losing” party could block the adoption
of the report, but also the opportunity for parties or other members to
block panel reports due to a substantive disagreement with the panel’s
legal analysis. The review carried out by the Appellate Body provides a
possibility for the correction of legal errors committed by panels. In this
manner, the Appellate Body also provides consistency and coherence
across panel decisions, in line with the central goal of the dispute
settlement system, i.e. to provide security and predictability to the multi-
lateral trading system (Article 3.2 of the DSU).
As explained on page 105, pursuant to Article 17.6 of the DSU, the
Appellate Body is vested with the authority to review issues of law
covered in the panel report, as well as legal interpretations developed
by the panel. Article 17.13 further provides that the Appellate Body may
“uphold, modify or reverse” the legal findings and conclusions of panels.
The Appellate Body has also completed the panel’s analysis in certain
circumstances.41
Composition and Structure of the Appellate Body

The DSB established the Appellate Body in 199542 as a standing body
composed of seven members. The DSB decides by consensus to appoint
an individual to a four-year term to the Appellate Body (Article 2.4 of the
DSU) and can re-appoint that individual once for a second four-year
term (Article 17.2 of the DSU).43 An Appellate Body member can,
therefore, serve for a maximum of eight years. On average, a part of
the Appellate Body membership changes every two years.
40
See the section on the decision-making in the DSB on page 24.
41
See page 119 for a discussion concerning the mandate of the Appellate Body, including
the circumstances in which the Appellate Body would complete the legal analysis of
a panel.
42
Decision Establishing the Appellate Body, Recommendations by the Preparatory Com-
mittee for the WTO approved by the Dispute Settlement Body on 10 February 1995, WT/
DSB/1, dated 19 June 1995.
43
Roughly 80 per cent of current and former members of the Appellate Body have served
two terms. See www.wto.org/english/tratop_e/dispu_e/ab_members_descrp_e.htm for
more information.
Appellate Body members must be persons of recognized authority,
with demonstrated expertise in law, international trade and the subject
matter of the covered agreements generally, and they must not be
affiliated with any government (Article 17.3 of the DSU). Appellate Body
members have so far been university professors, practising lawyers,
former government officials or senior judges. Being an Appellate Body
member is theoretically only a part-time occupation. However, the
workload of an Appellate Body member depends on the number of
appeals being filed. Given that Appellate Body members must be avail-
able at all times and on short notice (Article 17.3 of the DSU), their
ability to pursue other professional activities is limited.
The seven Appellate Body members must be broadly representative of
the membership of the WTO (Article 17.3 DSU), although they do not
act as representatives of their own countries but rather represent the
WTO membership as a whole. Members of the Appellate Body have
come from Australia, Belgium, Brazil, China, Egypt, Germany, India,
Italy, Japan, the Republic of Korea, Mauritius, Mexico, New Zealand,
the Philippines, South Africa, the United States, and Uruguay. To date, at
any one time, either three or four Appellate Body members have been
citizens of a developing country member.
According to the Working Procedures for Appellate Review adopted
by the Appellate Body,44 the seven Appellate Body members elect one of
their membership to serve as the chairperson of the Appellate Body for a
term of one or two years (Rule 5 of the Appellate Body Working
Procedures). The chairperson is responsible for the overall direction of
the Appellate Body, particularly its internal functioning (Rule 5(3) of the
Appellate Body Working Procedures).45
The Appellate Body Secretariat

The Appellate Body Secretariat provides legal assistance and adminis-
trative support to the Appellate Body (Article 17.7 of the DSU). To
ensure the independence of the Appellate Body, this Secretariat is legally
separate from the WTO Secretariat and has a separate budget, although it
44
See page 104 for more information concerning the applicable rules and working proced-
ures for appellate review. See also Annex V (page 280) including the Working Procedures
for Appellate Review.
45
For information about the current composition of the Appellate Body, see www.wto.org/
english/tratop_e/dispu_e/ab_members_descrp_e.htm.
reports on purely administrative matters to the Director-General. The
Appellate Body Secretariat is housed together with the WTO Secretariat
at the WTO in Geneva, where the DSB, panels and the Appellate Body
hold their meetings.
Arbitrators
In addition to panels and the Appellate Body, arbitrators, either as
individuals or as groups, can be called upon to adjudicate certain matters
at various stages of the dispute settlement process. Arbitration is available
as an alternative to dispute resolution by panels and the Appellate Body
(Article 25 of the DSU), although this is an option that has been used
very rarely.46 Arbitration results are not appealable but can be enforced
under the DSU (Article 25 of the DSU).
Much more frequent are two other forms of arbitration foreseen in the
DSU for specific situations and questions in the process of implementa-
tion, i.e. after the DSB has adopted a panel report (and, if applicable, an
Appellate Body report), and the respondent is bound to implement the
DSB recommendations and rulings. The first such situation wherein an
arbitrator may be called to decide is the determination of the “reasonable
period of time” granted to the respondent for implementation of the DSB
recommendations and rulings (Article 21.3(c) of the DSU). As a general
rule, a single current or former member of the Appellate Body acts as an
arbitrator in this type of proceeding.47 The second such situation is where
a respondent requests arbitration because it objects to the level or the
nature of the countermeasures proposed by the complainant (Article 22.6
of the DSU).48 These two forms of arbitration are thus limited to
clarifying very specific questions in the process of implementation and
they result in decisions that are binding on the parties.49
The WTO Secretariat also assists arbitrators. For arbitrations under
Article 22.6 of the DSU, the WTO Secretariat team often includes an
46
See the section on arbitration pursuant to Article 25 of the DSU on page 175.
47
In at least one Article 21.3(c) arbitration, however, the chairperson of the panel in the
original proceedings was appointed by the parties as the Arbitrator. (See Award of the
Arbitrator, US – Shrimp II (Viet Nam) (Article 21.3(c), para. 1.2). See the section on the
determination of the reasonable period of time for implementation through arbitration
on page 132.
48
See the section on arbitration pursuant to Article 22.6 of the DSU on page 147.
49
See pages 28 and 147 for reference to the use of the original panel members in such
arbitrations.
economist from the Economic Research and Statistics Division, in add-
ition to legal staff. For arbitrations under Article 21.3(c) of the DSU, the
Appellate Body Secretariat assists the arbitrator.
Experts
Disputes often involve complex factual questions of a technical or scien-
tific nature, for instance, when the existence or degree of health risk
related to a certain product is the subject of contention between the
parties. Because panelists are experts in international trade but not
necessarily in those particular specialized fields, the DSU gives panels
the right to seek information and technical advice from experts. Panels
may seek information from any relevant source, but before seeking
information from any individual or body within the jurisdiction of a
member, they must inform that member (Article 13.1 of the DSU). In
addition to the general rule of Article 13 of the DSU, the following
provisions in the covered agreements explicitly authorize or require
panels to seek the opinions of experts when they deal with questions
falling under these Agreements:
– Article 11.2 of the SPS Agreement;
– Articles 14.2, 14.3 and Annex 2 of the TBT Agreement;
– Articles 19.3, 19.4 and Annex 2 of the Customs Valuation
Agreement; and
– Articles 4.5 and 24.3 of the SCM Agreement.
Panels have discretion as to whether and how to seek expert advice, i.e.
whether to opt for establishing an expert review group or appointing
individual experts (Article 13.2 of the DSU).50
The rules and procedures for the establishment of expert review
groups are contained in Appendix 4 to the DSU. Expert review groups
perform their duties under the panel’s authority and report to the panel.
Panels establish the terms of reference and working procedures of the
expert review groups. When submitted to the panel, the final report of
an expert review group is issued to the parties to the dispute. Notably,
expert review groups have an advisory role; the ultimate decision on
the legal questions and the establishment of the facts on the basis
of the expert opinions remains within the domain of the panel. An
50
Panel Report, EC – Asbestos, para. 8.10; and Appellate Body Report, EC – Hormones,
paras. 146–149. See also Panel Report, US – Animals, paras. 1.11–1.27.
exception is the permanent group of experts called upon to determine
whether a measure is a prohibited subsidy under the SCM Agreement
(Article 4.5 of the SCM Agreement).51 Participation in expert review
groups is restricted to persons of professional standing and experience
in the field in question. Citizens of parties to the dispute cannot serve
on an expert review group without the joint agreement of the parties to
the dispute, except in exceptional circumstances when the panel con-
siders that the need for specialized scientific expertise cannot otherwise
be fulfilled. Government officials of parties to the dispute may not serve
on an expert review group. Members of expert review groups serve in
their individual capacity and not as government representatives, nor as
representatives of any organization. This means that their governments
or organizations must not give them instructions with regard to matters
before an expert review group.
To date, when panels have resorted to experts, they did not establish
expert review groups, but consulted experts on an individual basis. Panels
have appointed individual experts in a considerable number of disputes,
the majority of which involved complex scientific issues under the SPS
Agreement.52
Considering the role of experts in panel proceedings, the Appellate
Body has stressed the importance of ensuring the experts’ independence
and impartiality.53 This is also reflected in the Rules of Conduct, which
apply to panelists, Appellate Body members, arbitrators and appointed
experts.54
Dispute settlement panels may also seek information from other
international organizations whose expertise is relevant to the subject
51
Pursuant to this provision, the permanent group of experts’ conclusions on the issue of
whether or not a measure constitutes a prohibited subsidy must be accepted by the panel
without modification. To date, this group has never acted.
52
Individual experts were consulted by panels from 1995 to 2016 in at least fifteen disputes.
See, for instance, Panel Reports, Australia – Apples, paras. 1.21–1.40; US – Continued
Suspension, paras. 7.71–7.75; Canada – Continued Suspension, paras. 7.69–7.73; EC –
Approval and Marketing of Biotech Products, paras. 7.18–7.29; EC – Asbestos, para. 8.10;
US – Shrimp, para. 7.9; Australia – Salmon, para. 6.1; Australia – Salmon (Article 21.5 –
Canada), para. 6.1; Japan – Agricultural Products II, para. 6.2; EC – Hormones, para. 8.7;
Japan – Apples, para. 6.2; Japan – Film, paras. 1.9–1.10; Argentina – Import Measures,
paras. 1.37–1.38 (WCO); India – Agricultural Products, paras. 1.20–1.23; US – Animals,
para. 1.11; and Russia – Pigs, para. 1.21.
53
Appellate Body Reports, US – Continued Suspension/Canada – Continued Suspension,
para. 480.
54
See the section on the rules of conduct on page 37. See also Appellate Body Reports, US –
Continued Suspension/Canada – Continued Suspension, paras. 441–450.
matter of the case. For instance, the Codex Alimentarius Commission
(Codex), the Food and Agriculture Organization (FAO), the Inter-
national Agency for Research on Cancer (IARC), the International Mon-
etary Fund (IMF), the International Plant Protection Convention (IPPC),
the Joint FAO/World Health Organization (WHO) Expert Committee on
Food Additives (JECFA), the United Nations Environmental Programme
(UNEP), the World Customs Organization (WCO), the World Intellec-
tual Property Organization (WIPO), the WHO and the World Organisa-
tion for Animal Health (OIE) have been consulted in specific disputes.55
The procedures for consultations with individual experts and inter-
national organizations are explained on page 75.56
Rules of Conduct
Under the DSU, the actors taking part in dispute settlement proceed-
ings are subject to certain rules designed to ensure due process57 and
unbiased decisions. Persons called to participate in the dispute settle-
ment system as panelists, Appellate Body members or arbitrators must
carry out their tasks in an impartial and independent manner (see, for
example, Articles 8, 11 and 17 of the DSU). Equally, panel and Appel-
late Body members are prohibited from having any ex parte communi-
cations58 concerning matters under their consideration (Article 18.1 of
the DSU).
55
See, for example, Panel Reports, India – Quantitative Restrictions, paras. 5.11–5.13 (IMF);
US – Section 211 Appropriations Act, paras. 1.8 and 8.11–8.13 (WIPO); EC – Chicken Cuts,
paras. 7.52–7.53 (WCO); Decision by the Arbitrator, US – Gambling (Article 22.6 – US),
paras. 2.32–2.35 (IMF, Eastern Caribbean Central Bank); Panel Reports, EC – Approval and
Marketing of Biotech Products, paras. 7.31–7.32 (FAO, Codex, IPPC, OIE, UNEP, WHO);
US – Continued Suspension/Canada – Continued Suspension, para. 1.7 (Codex, JECFA,
IARC); China – Auto Parts, paras. 2.5–2.6 (WCO); China – Intellectual Property Rights,
paras. 2.7–2.9 (WIPO); EC – IT Products, para. 2.3 (WCO); India – Agricultural Products,
para. 1.23 (OIE); US – Animals, paras. 1.11–1.13 (OIE); and Russia – Pigs, para. 1.21 (OIE).
56
For a discussion of how panels have addressed certain issues related to the use of experts
in science-related disputes, see D. A. Baker, M. Goldstein, M. J. Pereyra, and C. Wakoli,
“When science meets law: The rule of law in the development of the panel’s expert
consultation process”, in G. Marceau (ed.), A History of Law and Lawyers in the GATT/
WTO: The Development of the Rule of Law in the Multilateral Trading System (Cam-
bridge University Press, 2015), p. 434.
57
See footnote 48 in Chapter 4 for an explanation of what due process entails.
58
“Ex parte communication” is a communication between a representative of a party and
an adjudicator when the representative of another party is not present. Black’s Law
Dictionary, 8th edition, B. Garner (ed.) (West, 2004), p. 296.
In addition, the DSB has adopted Rules of Conduct for the DSU,59
which aim to guarantee the integrity, impartiality and confidentiality of
the dispute settlement system. These Rules of Conduct are applicable to
panelists, experts and arbitrators, Appellate Body members and staff
members of the WTO Secretariat and the Appellate Body Secretariat.60
Under the Rules of Conduct, these persons are required to be independ-
ent and impartial, to avoid direct or indirect conflicts of interest, and
to respect the confidentiality of dispute settlement proceedings.61
A violation of the Rules of Conduct gives the parties to the dispute a
right to challenge the participation of that person in the dispute settle-
ment proceeding concerned and to request the exclusion of that person
from any further participation in the process.
59
WT/DSB/RC/1, 11 December 1996. See Annex II.
60
In addition to the Rules of Conduct for the DSU, the staff members of the WTO
Secretariat involved in dispute settlement are also subject to the WTO Staff Rules of
Conduct and, in the case of some legal staff members, to domestic rules of professional
ethics when members of a municipal Bar. Additionally, on 16 April 2014, the Appellate
Body issued a communication containing post-employment guidelines to be followed by
former Appellate Body members, former Appellate Body Secretariat staff, and former
interns at the Appellate Body Secretariat (Communication from the Appellate Body,
Post-Employment Guidelines, WT/AB/22).
61
For instance, persons covered by the Rules of Conduct may not make any public
statements on dispute settlement proceedings or on the issues in dispute until the panel
or Appellate Body report has been derestricted.
3
The Scope of WTO Disputes
The WTO dispute settlement system serves to preserve the rights and
obligations of members under the WTO Agreement.1 Accordingly, it is
open only to WTO members, and only for the settlement of disputes
concerning their rights and obligations resulting from the WTO Agree-
ment. This chapter examines in more detail when a dispute can be
initiated, what the object of such dispute can be, and which allegations
can be made.
When Can a Dispute be Initiated?

Only WTO members can initiate a dispute under the DSU, and they have
broad discretion in deciding whether to bring a case against another
member under the DSU.2 Article 3.7 of the DSU entrusts WTO members
with the responsibility of exercising their own judgment in deciding
whether it would be fruitful to bring a case. Article 3.7 of the DSU thus
“reflects a basic principle that Members should have recourse to WTO
dispute settlement in good faith, and not frivolously set in motion the
procedures contemplated in the DSU”.3
1
See page 6.
2
In EC – Bananas III, the European Communities argued that a complainant must
normally have a “legal right or interest” in the claim it is pursuing. It thus contested the
United States’ legal standing to bring a number of claims concerning trade in goods
against its bananas regime, because the United States did not export and barely produced
bananas. Both the panel and the Appellate Body rejected this contention. In particular, the
Appellate Body was satisfied with the fact that the complainant was a producer and
potential exporter of the product in question. Moreover, the claims in that case were
interwoven with claims under other covered agreements, for which the complainant’s
standing had not been challenged. Appellate Body Report, EC – Bananas III, paras.
132–138. In line with the Appellate Body’s decision in EC – Bananas III, see Panel Reports,
US – Section 110(5) Copyright Act, para. 6.231; US – Certain EC Products, para. 6.109; EC –
Asbestos, para. 8.110; and Colombia – Ports of Entry, paras. 7.326–7.330.
3
Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 73.
39
What Can be Challenged?
The most common basis for the initiation of a dispute is a claim that a
member has failed to carry out its obligations under a covered agree-
ment.4 The DSU refers to the impairment of benefits under the covered
agreements “by measures taken by another Member” (Article 3.3 of the
DSU), and the proper identification of the challenged measures is a key
aspect of the procedures.5 However, the DSU does not define the notion
of “measure”. For example, what types of action by a member are covered
by a commitment in a covered agreement? Can only acts by adminis-
trative authorities be challenged or also legislative acts? Can the com-
plainant invoke the dispute settlement system only against legally
binding acts of members or also against non-binding acts taken by the
members’ authorities? Can the challenge be directed only against gov-
ernmental conduct or also against the behaviour of private individuals?
Can it be directed only against positive action or also against omissions,
i.e. the failure to act? These questions have been clarified through the
jurisprudence: any act or omission attributable to a WTO member can be
considered a measure by that member for purposes of dispute settlement
proceedings.6
Measures Attributable to a WTO Member

Where the WTO-consistency of a measure is challenged, the measure in
question must be attributable to a WTO member in order to be suscep-
tible to a challenge under the DSU. This does not mean that only central
government measures are subject to the WTO dispute settlement system.
Subjects of international law, typically States, are responsible for the
activities of all branches of government within their system of govern-
ance, and also for all regional levels or other subdivisions of government.
This principle also applies in WTO law, except where the covered
agreements expressly deal with this question and exclude acts taken by
regional or local governments from the coverage of certain obligations.
A measure may thus be attributable to a WTO member even if it does not
consist of an action or omission of the central government, but rather of
4
For an explanation of the types of complaints (violation, non-violation and situation), see
page 47.
5
See pages 57 and 64 on the panel request and the panel’s terms of reference.
6
Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 81.
the scope of wto disputes 41
local authorities7 or even private entities acting pursuant to instructions
issued by government authorities.8
Acts or Omissions
A challengeable measure for the purposes of WTO dispute settlement is
defined as any act or omission attributable to a WTO member.9 This
means that not only actions but also omissions, or the failure to take
prescribed action, may be challenged.
If a complaint is based on a provision that prohibits certain actions
(for example, Article XI of the GATT 1994, which prohibits, among other
things, export restrictions), a positive action by a WTO member (for
instance, introducing a law, regulation or decision impeding the export-
ation of goods to other WTO members or other forms of measures
imposing restrictions) could constitute a violation of such a provision.
In principle, inaction (i.e. the failure to adopt a law, regulation or
decision) would not breach the obligation arising from that provision.10
The situation would be different under provisions of the WTO Agree-
ment that do not prohibit certain behaviour, but rather require positive
action. Article 25.1 of the TRIPS Agreement, for example, obliges
members to provide for the protection of new or original, independently
created industrial designs. Article 26 defines what this protection has to
include. This is a typical obligation on members to take positive action by
passing and applying a law granting this protection. Accordingly,
inaction or an omission will be at the heart of a violation complaint in
a situation where a member has either done nothing, i.e. not passed any
laws, or where the laws passed and applied for some reason do not meet
the required standards of a relevant provision.11
7
Article 22 of the DSU explicitly indicates that the dispute settlement provisions of the
covered agreements may be invoked in respect of measures taken by regional or local
governments or authorities within the territory of a member.
8
Panel Reports, Argentina – Hides and Leather, paras. 11.17, 11.22 and 11.51; and
Argentina – Import Measures (US), fn. 440. This follows the practice during the GATT
times, for instance, GATT Panel Reports, Japan – Semi-Conductors, para. 117; and EEC –
Dessert Apples, para. 126.
9
10
The failure to abrogate a law that impedes exports should not be qualified as omission in the
technical sense, as the violation is found in the law in question, which is a positive act.
11
Obligations to take positive action are prominent within the TRIPS Agreement, but also
exist in other covered agreements. Notification and transparency requirements (Article
12.2 of the Agreement on Safeguards or Article X:1 of the GATT 1994) or consultation
Unwritten measures – that is, acts or omissions attributable to a
member that are not expressed in the form of a “written” document –
can also be challenged in WTO dispute settlement. The existence of an
unwritten measure is obviously more complicated to be established; a
complainant seeking to prove the existence of an unwritten measure will
invariably be required to prove the attribution of that measure to a
member, and its precise content. Depending on the specific measure
challenged and how it is described or characterized by a complainant,
however, other elements may need to be proven.12 Although there is
some uncertainty as to whether the “practice” of a member may be
challenged as a measure,13 concerted action or practice may be suscep-
tible to challenge in WTO dispute settlement.14 Examples of unwritten
measures that have been found to constitute measures subject to dispute
settlement are the zeroing methodology itself and the ongoing conduct
that consisted of the use of the zeroing methodology in calculating the
dumping margin in a number of determinations15 as well as the combin-
ation of five trade-related requirements on economic operators as a
condition to import into the respondent or to obtain certain benefits.16
Challenges to Measures “As Such” and “As Applied”

Measures include laws,17 regulations, administrative instructions and
policies, and their application in specific instances. WTO complaints
requirements (Article 12.3 of the Agreement on Safeguards) are other examples. What
can become the object of a violation complaint, therefore, essentially depends on the
obligations underlying the claim.
12
See page 92 on the rules of evidence in WTO dispute settlements proceedings.
13
Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 220.
14
Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 794.
15
In US – Zeroing (EC), the Appellate Body considered a challenge against the “zeroing
methodology” as an unwritten “‘rule or norm’ that constitutes a measure of general and
prospective application”. See Appellate Body Report, US – Zeroing (EC), para. 198. In
another dispute related to zeroing, the Appellate Body considered that the measure at
issue was neither the zeroing methodology as a rule or norm of general and prospective
application, nor the discrete applications of the zeroing methodology in particular
determinations. Rather, the Appellate Body considered that the measure at issue was
ongoing conduct that consisted of the continued use of the zeroing methodology in
successive proceedings by which duties in each of eighteen cases were maintained. See
Appellate Body Report, US – Continued Zeroing, para. 181. See also Appellate Body
Reports, Argentina – Import Measures, paras. 5.104–5.105.
16
Appellate Body Report, Argentina – Import Measures (US), paras. 1.2–1.4.
17
Not only individual laws but also entire legal systems may be challenged. See Appellate
Body Report, EC – Selected Customs Matters, para. 166.
are often directed against specific administrative measures taken by
authorities of a WTO member pursuant to domestic laws, for example,
anti-dumping duties imposed by an anti-dumping authority following
an investigation of certain imports pursuant to the applicable trade
remedy laws of that member. However, the underlying law itself may
also violate a WTO legal obligation or otherwise nullify or impair
benefits under the covered agreements. Article XVI:4 of the WTO
Agreement makes clear that members must ensure the conformity of
their laws, regulations and administrative procedures with obligations
under the covered agreements. Accordingly, members frequently
invoke the dispute settlement system against a law as such, independ-
ently of, or without waiting for, the application of that law.18 For
example, claims about taxes that discriminate against imports and
contravene Article III:2 of the GATT 1994 are typically directed at
the tax legislation rather than the tax imposed on a specific shipment
of goods at a specific time in the recent past. Successfully challenging
the law as such gives the advantage that the respondent’s implemen-
tation, ideally the withdrawal or modification of the inconsistent
measure (Article 3.7 of the DSU), would equally address the law as
such and not be limited to an isolated case of the application of that
law.19 In litigation jargon, the distinction between challenging a law
independently of its application, on the one hand, and challenging a
law as it has been applied in a specific instance, on the other hand, is
referred to as challenging the law “as such” (in the case of the former)
or “as applied” (in the case of the latter).
The distinction between challenges to measures “as such” and “as
applied” appears to be firmly established in GATT/WTO dispute
settlement practice.20 Some caution is required in respect of
18
Appellate Body Report, US – Carbon Steel, para. 156. The Appellate Body has warned
about the seriousness of “as such” challenges and urged complainants to “be especially
diligent in setting out ‘as such’ claims in their panel requests as clearly as possible”.
Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 173
(emphasis original).
19
See Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 172.
See also Panel Report, Colombia – Ports of Entry, para. 7.44.
20
Separate from the question of whether a measure may be challenged “as such” or “as
applied” is the question of whether a measure is WTO-inconsistent on a de jure (“in law”)
basis or a de facto (“in fact”) basis. Whereas the concepts of “as such” and “as applied”
refer to what is being challenged, the concepts of de jure and de facto relate to the evidence
used to substantiate a finding of inconsistency. De jure inconsistency can be established
based on the express terms of the measure, or the necessary implications of such terms
categorizing challenges to measures as either “as such” or “as
applied”. The distinction between the two forms of challenges nei-
ther governs the definition of a measure for purposes of WTO
dispute settlement, nor defines exhaustively the types of measures
that are susceptible to challenge.21 Rather, the distinction may serve
as an analytical tool for understanding the nature of the measure at
issue in a dispute.22
GATT panels had traditionally found that only legislation that
mandated a violation of obligations under the GATT 1947 could
be found to be inconsistent with those obligations. By contrast,
legislation that gave discretion to the executive authority of a
member to act inconsistently with the GATT 1947 could not be
found to be GATT-inconsistent. This was because of the presump-
tion that in implementing discretionary legislation, administrative
bodies would, in good faith, act in accordance with their obligations
under the GATT 1947. In such cases, only the actual application of
such legislation inconsistently with the GATT 1947 could be found
to be GATT-inconsistent. Although most panels23 and the Appellate
Body have often followed this distinction when dealing with poten-
tially WTO-inconsistent legislation, the Appellate Body has cau-
tioned against using it “in a mechanistic fashion”24 and clarified
that the mandatory/discretionary distinction is relevant, if at all,
only as part of a panel’s substantive assessment of whether the
(Appellate Body Report, Canada – Autos, paras. 99–100), whereas de facto inconsistency
can be established according to the effect of the measure, or the surrounding facts and
circumstances in which the measure operates (Appellate Body Report, Canada – Aircraft,
para. 167; US – Clove Cigarettes, para. 206; Thailand – Cigarettes (Philippines), para. 130;
and Panel Report, Canada – Pharmaceutical Products, 7.101). In some provisions of the
covered agreements, de jure and de facto inconsistencies are expressly contemplated (see,
for example, Article 3.1(a) of the SCM Agreement and Articles XVII:2 and XVII:3 of the
GATS); otherwise, panels and the Appellate Body may determine the extent to which a
particular provision encompasses both types of inconsistency (see Appellate Body
Reports, Canada – Autos, paras. 78, 139–140; Korea – Various Measures on Beef, paras.
137–148; US – Clove Cigarettes, para. 175; and US – Tuna II (Mexico), para. 225; and
Panel Report, Argentina – Hides and Leather, para. 11.17).
21
Appellate Body Reports, Argentina – Import Measures, para. 5.109.
22
Appellate Body Report, US – Continued Zeroing, para. 179.
23
The panel in US – Section 301 Trade Act, however, did not accept the distinction between
discretionary and mandatory legislation in the context of a claim made pursuant to
Article 23 of the DSU. Panel Report, US – Section 301 Trade Act, paras. 7.53–7.54. See also
Panel Report, US – Section 129(c)(1) URAA, para. 6.22.
24
underlying measure is inconsistent with a particular obligation, but
not in respect of the jurisdictional question of whether that measure
is challengeable, at all, in WTO dispute settlement.25 In practice, the
Appellate Body has found non-mandatory measures to be WTO-
inconsistent.26
Challenges of measures “as such” may refer not only to the challenge of
legally binding instruments, but also to challenges of measures of a WTO
member that are not mandatory in the domestic legal system. This is
because the disciplines of the GATT 1947 and the WTO, as well as the
dispute settlement system, are intended to protect not only existing trade
but also the security and predictability needed to conduct future trade.
This objective would be frustrated if instruments setting out rules or
norms inconsistent with a member’s obligations could not be brought
before a panel without reference to a particular instance of application of
such rules or norms. It would also lead to a multiplicity of litigation if
instruments embodying rules or norms could not be challenged “as such”,
but only in the instances of their application. Thus, allowing challenges
against measures “as such” serves the purpose of preventing future dis-
putes by eliminating the root of the WTO-inconsistent behaviour.27
A Special Case: Anti-Dumping Measures

Article 17.4 of the Anti-Dumping Agreement is one of the special dispute
settlement provisions referred to on page 19. This provision identifies the
measures that can be challenged pursuant to the Anti-Dumping
Agreement as one of three types of anti-dumping measures (definitive
anti-dumping duty, the acceptance of a price undertaking, or a provi-
sional measure). This provision, when read together with Article 6.2 of
the DSU,28 requires a request for establishment of a panel (“panel
25
26
In US – Corrosion-Resistant Steel Sunset Review, the Appellate Body, in the context of an
anti-dumping dispute, for the first time, did not follow the traditional mandatory versus
discretionary rule and explained that it saw no reason for concluding that, in principle,
non-mandatory measures cannot be challenged “as such”. In this case, the measure at
issue was the United States Sunset Policy Bulletin that the panel had found not to be
challengeable as such because it was not mandatory for the competent authorities.
Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, paras. 87–89.
27
Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, paras. 81–82. See
also Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 187.
28
See page 57.
request”) in a dispute brought under the Anti-Dumping Agreement to
identify, as the specific measure at issue, either a definitive anti-dumping
duty, the acceptance of a price undertaking, or a provisional measure.29
Nevertheless, challenges “as such” to the anti-dumping law of a WTO
member are also possible, because Article 18.4 requires members to
ensure the conformity of their laws, regulations, and administrative
procedures with the Anti-Dumping Agreement.30
What Claims Can be Raised?

The Covered Agreements
The DSU applies to all disputes brought under the agreements listed in
Appendix 1 of the DSU (Article 1.1 of the DSU). As indicated above, this
means that members cannot bring to the WTO dispute settlement system
disputes concerning the rights and obligations encompassed in legal
provisions outside these “covered agreements”.31
The covered agreements include all the multilateral agreements on
trade in goods, the GATS and the TRIPS Agreement. The DSU itself and
the WTO Agreement (in the sense of Articles I to XVI of the Marrakesh
Agreement) are also listed as covered agreements.32 In most disputes
brought to the WTO dispute settlement system, the complainant will
invoke provisions of more than one covered agreement.
The covered agreements also include the Plurilateral Trade Agree-
ments contained in Annex 4 to the WTO Agreement (Appendix 1 of
the DSU). These Agreements are “plurilateral” rather than “multilat-
eral” because not all WTO members are parties to them. Of the four
Plurilateral Trade Agreements included in Annex 4, only the Agree-
ment on Trade in Civil Aircraft and the Agreement on Government
Procurement are currently in force.33 The applicability of the DSU
to the Plurilateral Trade Agreements is subject to the adoption of a
decision by the parties to each of these Agreements setting out the
29
30
Appellate Body Report, US – 1916 Act, para. 61. 31
See page 6.
32
The Trade Policy Review Mechanism included in Annex 3 of the WTO Agreement is the
sole multilateral agreement that is not a “covered agreement”. This means that a WTO
member cannot bring a dispute to the WTO dispute settlement system concerning rights
and obligations deriving from that agreement.
33
The two other Plurilateral Trade Agreements were the International Dairy Agreement and
the International Bovine Meat Agreement. Both were terminated at the end of 1997.
terms for the application of the DSU to the individual agreement,
including any special and additional rules or procedures (Appendix 1
of the DSU). Currently, only the Committee on Government Procure-
ment foreseen in the Agreement on Government Procurement has taken
such a decision.34
Violation, Non-violation and Situation Complaints

As provided for in subparagraphs (a), (b) and (c) of Article XXIII:1 of
the GATT 1994, complaints can be classified into three broad categor-
ies: “violation”, “non-violation” and “situation” complaints. These cat-
egories are inherited from the GATT 1947 and are based on the notion
of “nullification or impairment of benefits” accruing to members under
the covered agreements. A "claim" can therefore be a claim that the
respondent party has violated, or otherwise nullified or impaired the
benefits arising from, an identified provision of a particular
agreement.35
“Violation” complaints are by far the most common type of complaint
and involve the nullification or impairment of a benefit,36 or an impedi-
ment of the achievement of an objective, as a result of the failure of
another member to carry out its obligations under the covered agree-
ments. This “failure to carry out obligations” is just a different way of
referring to a legal inconsistency with, or violation of, the covered
agreements.
“Non-violation” complaints arise where there is nullification or
impairment, or where the attainment of an objective (of a covered
agreement) is impeded, even in the absence of a violation of a covered
agreement.37 Non-violation complaints “should be approached with cau-
tion and should remain an exceptional remedy”.38
“Situation” complaints cover any other situation that results in
nullification or impairment, or where the achievement of an objective
34
Notification under Appendix 1 of the DSU, Communication from the Chairman of the
Committee on Government Procurement, WT/DSB/7, 12 July 1996.
35
Appellate Body Report, Korea – Dairy, para 139.
36
In Japan – Film, the panel equated “nullification and impairment” with “upsetting the
competitive relationship” between domestic and imported products. Panel Report,
Japan – Film, para. 10.83.
37
Non-violation complaints are not foreseen for disputes concerning the TRIPS Agree-
ment. See Article 64(2) of the TRIPS Agreement.
38
Appellate Body Report, EC – Asbestos, para. 186.
is impeded.39 While there have been a few WTO cases where a
complainant raised a non-violation complaint,40 no situation com-
plaint has ever been raised at the WTO.41 Both types of complaints
are dealt with in Article 26 of the DSU, which provides for certain
rules applicable to proceedings where such complaints arise.
39
Situation complaints are not foreseen for disputes concerning the GATS and the TRIPS
Agreement, and they are not subject to the negative consensus rule. See Article 64(2) of
the TRIPS Agreement; Article XXIII of the GATS; Article 26(2) of the DSU.
40
As of 1 December 2016, there have been four disputes (Japan – Film, EC – Asbestos,
Korea – Procurement and US – Offset Act (Byrd Amendment)) in which a non-violation
nullification and impairment claim was substantively considered by a panel. In none of
these cases were the claims of non-violation successful. There have been other disputes
where a non-violation nullification and impairment claim was made but not substantively
considered by the panel, for instance, US – Gasoline, EC – Hormones (Canada), China –
Auto Parts, US – Tuna II (Article 21.5 of the DSU), US – COOL and EC – Seal Products.
41
A few situation complaints were raised under the old GATT dispute settlement system,
but none of them ever resulted in a panel report. For instance, in a complaint against
Japan in 1983, the European Communities requested the establishment of a working
party under Article XXIII:2 of the GATT 1947, on the grounds that benefits of successive
GATT negotiations with Japan had not been realized owing to a series of factors peculiar
to the Japanese economy that resulted in a lower level of imports, especially of manufac-
tured products, as compared with other industrial countries. The European Communities
was of the view that such a situation constituted a nullification or impairment by Japan,
of the benefits otherwise accruing to the European Communities under the GATT, and
an impediment to the attainment of GATT’s objectives. In particular, the general GATT
objective of “reciprocal and mutually advantageous arrangements” had not been
achieved. See L/5479.
4
The Stages in a Typical WTO Dispute
This chapter explains the various stages of a WTO dispute.1 In principle,

there are two main ways to settle a dispute once a complaint has been
filed in the WTO: either the parties find a mutually agreed solution,
particularly during the phase of bilateral consultations; or adjudication
takes place, followed by the subsequent implementation of the panel and
Appellate Body reports, which are binding upon the parties once adopted
by the DSB.2
As shown in the flow chart in Annex I (page 190), there are three main
stages in the WTO dispute settlement process: (i) consultations between
the parties;3 (ii) adjudication by panels4 and, if applicable, by the Appel-
late Body;5 and (iii) the implementation of the recommendations and
rulings,6 which includes the possibility of countermeasures in the event
of failure by the respondent to implement the recommendations and
rulings.7
Throughout this process, the DSU and some of the covered agree-
ments foresee a number of instances where parties are required to notify
the DSB.8 The documents notified to the chairperson of the DSB
1
A flow chart of the WTO dispute settlement system process is included in Annex I
(page 190).
2
In addition to the adjudication process by panels and the Appellate Body, Article 25 of the
DSU provides for expeditious arbitration as alternative means of dispute settlement. See
page 175.
3 4 5 6
See page 50. See page 57. See page 104. See page 130.
7
See page 141.
8
Where there is a requirement under the DSU or any other covered agreements that
communications by delegations be addressed to the DSB chairperson, such communi-
cations should always be sent to the WTO Secretariat with a copy to the DSB chairperson
(see WT/DSB/6). In practice, members deliver the signed paper version of their communi-
cation to the Secretary of the DSB (may be scanned and sent electronically). To facilitate
the preparation by the WTO Secretariat of the document for its circulation under the WT/
DS series, members are requested to send the electronic version of their communication to
the Legal Affairs Division in a format compatible with that of the WTO Secretariat.
49
concerning a given dispute are published by the Secretariat within the
WT/DS series under the same dispute number9 and are made available to
the public in the three official languages of the WTO (English, French
and Spanish).10
Consultations
The Purpose of WTO Consultations
A WTO dispute is generally not the first step or recourse in the reso-
lution of a trade dispute. In light of the complexities surrounding trade
disputes, the preferred outcome under the DSU is for the disputing
members to settle the dispute between themselves in a manner consistent
with the covered agreements (Article 3.7 of the DSU).11 The structure of
dispute settlement reflects this preference: while it is to be expected that
WTO members will have engaged in commercial and diplomatic negoti-
ations before the formal launch of a WTO dispute, the DSU nevertheless
provides that the first step in a formal dispute is bilateral consultations
between the parties (Article 4 of the DSU). In this sense, WTO consult-
ations provide the parties with an opportunity to continue to discuss the
matter and to find a satisfactory solution within the framework of a
formalized process (Article 4.5 of the DSU). Consultations give formal
notice to the respondent of the general outline of the dispute and allow
the complainant to refine the contours of the dispute to be subsequently
9
As an exception to this rule, the refusals to accept WTO members to join consultations as
third parties are not circulated. See footnote 41 of Chapter 4.
10
Concerning the applicable rules on the calculation of time periods in WTO dispute
settlement proceedings, the DSB has specifically agreed that, “when there is a reference
to the terms ‘date of circulation’ or ‘issuance to all Members’ or ‘issuance to the Members’
in the DSU and its additional and special rules, the date to be used is the date printed on
the WTO document to be circulated with the assurance of the Secretariat that the date
printed on the document is the date on which this document is effectively put in the
pigeon holes of delegations in all three working languages” (WT/DSB/6). Nowadays, the
WT/DS series documents are also uploaded on the internet in the three official languages
(WT/L452, para. 3). When, under the DSU and its special or additional rules and
procedures, a time period within which a communication must be made or action taken
by a member to exercise or preserve its rights expires on a non-working day of the WTO
Secretariat, any such communication or action will be deemed to have been made or
taken on the WTO non-working day if lodged on the first working day of the WTO
Secretariat following the day on which such time period would normally expire. See WT/
DSB/6 in Annex VI (page 310).
11
See page 12.
the stages in a typical wto dispute 51
set out in the panel request.12 Indeed, some 40 per cent of cases never go
past the consultations stage. It has been suggested that this is because
consultations permit parties to assess more formally the strengths and
weaknesses of their respective cases, narrow the scope of the differences
between them and, thus, reach a mutually agreed solution.13
In any event, a request for consultations is a legal prerequisite for panel
proceedings.14 Where disputing parties fail to settle the dispute within
sixty days from the date of the request for consultations, the complainant
may request adjudication by a panel (Article 4.7 of the DSU).15
If the respondent does not respond to a request for consultations, or
declines to enter into consultations, the complainant may dispense with
consultations and proceed to request the establishment of a panel. In
such a case, the respondent, by its own conduct, relinquishes the poten-
tial benefits that could be derived from those consultations.16
Even when initial consultations have failed to resolve the dispute, it
always remains possible for the parties to find a mutually agreed solution
at a later stage of the proceedings.
Legal Basis and Requirements for a Request for Consultations

The request for consultations formally initiates a dispute in the WTO
and triggers the application of the DSU and the relevant dispute settle-
ment provisions of the covered agreements. At the same time, true to its
diplomatic origins and purposes, the request for consultations is
addressed directly to the respondent and notified to the DSB and relevant
councils and committees overseeing the agreement(s) in question
12
Consultations may lead to the narrowing or reformulation of a complaint to the extent
that the “measure at issue” and the “legal basis” identified in the panel request may be
“expected to be shaped by, and thereby constitute a natural evolution of, the consultations
process”. Appellate Body Reports, Mexico – Anti-Dumping Measures on Rice, para. 138;
and Argentina – Import Measures, para. 5.10.
13
Appellate Body Reports, Mexico – Corn Syrup (Article 21.5 – US), para. 54; and
Argentina – Import Measures, para. 5.10. See the section on the mutually agreed solution
as the preferred solution to a WTO dispute on page 12.
14
Appellate Body Report, US – Upland Cotton, para. 287. See also Appellate Body Reports,
Brazil – Aircraft, para. 131; US – Continued Zeroing, para. 222; and Argentina – Import
Measures, para. 5.10.
15
The parties to a dispute can depart from the requirement of consultations through
mutual agreement under Article 25.2 of the DSU if they resort to arbitration as an
alternative means of dispute settlement. See page 175.
16
(Article 4.4 of the DSU). Members only have to send a single text of their
notification to the WTO Secretariat, identifying the other relevant coun-
cils or committees. The WTO Secretariat then distributes it to the
specified relevant bodies17 and prepares the relevant WTO official
document to be circulated to members under the WT/DS series.18
In addition to providing formal notice to the respondent, the request
for consultations informs the entire WTO membership and the public at
large of the initiation of a WTO dispute and its subject matter. Consult-
ations are governed by the provisions of Article 4 of the DSU and the
covered agreement(s) at issue. This means that a complainant has to
make the request pursuant to one or more of the covered agreements
(Articles 4.3 and 1.1 of the DSU), specifically under the provision on
consultations contained in the covered agreement(s) in question.19
Under the GATT 1994 and those covered agreements that refer to the
consultations and dispute settlement provisions of the GATT 1994, two
legal provisions allow the complainant to initiate a dispute with a request
for consultations: Articles XXII:1 and XXIII:1 of the GATT 1994. Simi-
larly, under the GATS, consultations can be initiated under either Article
XXII:1 or XXIII:1. For practical purposes, the main difference between
these two legal provisions is whether other WTO members have the right
to join as third parties in the consultations. This right is only granted
when consultations are requested pursuant to Article XXII:1 of the
GATT 1994, Article XXII:1 of the GATS, or the corresponding provi-
sions in other covered agreements (Article 4.11 of the DSU).20 Hence, the
choice between Articles XXII:1 and XXIII:1 of the GATT 1994 is a
17
See footnote 8 in Chapter 4 about the procedures applicable to notifications to the DSB.
18
As agreed by the DSB, an official WTO document will be prepared reproducing the
contents of the request for consultations. Because the request for consultations is always
the first official WTO document in a specific dispute and each dispute has its own WT/
DS number, requests for consultations always carry the document symbol WT/DS###/1.
Depending on the legal basis of the request for consultations, the document will also have
document symbols relating to the relevant councils and committees. For instance, a
request for consultations pursuant to, inter alia, Article 11 of the SPS Agreement, will
also include the document symbol G/SPS/GEN/###. The members have instructed the
WTO Secretariat not to circulate the documents on a Friday (or the day before a bank
holiday) if the consultations have been requested pursuant to, inter alia, Article XXII of
the GATT 1994, which, as explained on page 56, grants members the right to request to
join consultations. See also footnotes 8 and 10 in Chapter 4 concerning circulation of
documents within the WT/DS series and the calculation of time limits.
19
See page 17.
20
The corresponding consultation provisions in the covered agreements are listed in
footnote 4 to the DSU.
strategic one, depending on whether the complainant wants to make it
possible for other members to participate in the consultations. If the
complainant invokes Article XXII:1 of the GATT 1994, the admission of
interested third parties in the consultations process depends on the
respondent, which may or may not accept their requests.21 By choosing
Article XXIII:1 of the GATT 1994, the complainant is able to prevent the
involvement of third parties in the consultations. This option may be
attractive for a complainant that hopes to work towards a mutually
agreed solution with the respondent without interference from other
members.
A request for consultations must be submitted in writing and must
give the reasons for the request. This includes identifying the measures at
issue and indicating the legal basis for the complaint (Article 4.4 of the
DSU).22 As the purpose of consultations is partly to gather a better
understanding of, or additional information about, the parties’ positions,
the measures and claims may be expected to be shaped by the consult-
ations process. For this reason, provisions referred to in the request for
consultations need not be identical to those that will be set out in the
panel request later if the case proceeds to the adjudication phase,
provided that the complainant does not “expand the scope”23 or “change
the ‘essence’”24 of the dispute in its panel request as compared to its
consultations request.25 The same applies to the identification of the
21
See the section concerning third parties’ rights at the consultations stage on page 55.
22
When the measure at issue is allegedly a prohibited subsidy (Article 3 of the SCM
Agreement), the request for consultations must include a statement of available evidence
with regard to the existence and nature of the subsidy in question (Article 4.2 of the SCM
Agreement). The non-inclusion of such a statement has not, however, been found to be
an obstacle for a panel to review claims under Article 3 of the SCM Agreement. Panel
Report, US – FSC, para. 7.7.
23
Appellate Body Report, US – Upland Cotton, para. 293.
24
Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, paras. 137 and 138.
25
Ascertaining whether a panel request has impermissibly expanded the scope of the
dispute or changed its essence with respect to the consultations request must be done
on a case-by-case basis. This examination involves scrutinizing the extent to which the
identified measure at issue and/or the legal claims have evolved or changed from the
consultations request to the panel request. With respect to the measure at issue, in
particular, even if such measure is identified with sufficient precision in a panel request,
it may nevertheless fall outside the panel’s terms of reference if that measure was not
referred to in the request for consultations, and is separate and legally distinct from the
measures that were identified therein. See Appellate Body Reports, US – Certain EC
Products, paras. 69–78 and 82; US – Shrimp (Thailand)/US – Customs Bond Directive,
para. 295; and Argentina – Import Measures, paras. 5.13–5.15.
measures.26 As explained on page 64, it is the panel request that will
determine the scope of the panel’s terms of reference, i.e. the extent of the
panel’s jurisdiction. Nonetheless, consultations play an important role in
defining the scope of the dispute27 because the conduct of consultations,
as well as the ability of the parties to engage fully therein, is directly
affected by the content of the consultations request. It is this document
that informs the respondent, and the WTO membership, of the nature
and object of the challenge raised by the complainant, and enables the
respondent to prepare for the consultations themselves. This is because
“the claims that are made and the facts that are established during
consultations do much to shape the substance and the scope of the
subsequent panel proceedings.”28 The contribution that consultations
can make to the refinement of the dispute, in turn, makes it “especially
necessary” for parties to be fully forthcoming during this phase of the
WTO dispute settlement process.29 The DSU thus imposes on the
respondent the obligation to accord sympathetic consideration to, and
afford adequate opportunity for, consultations (Article 4.2 of the DSU).
Procedure for Consultations

Consultations are confidential to the participating WTO members (Art-
icle 4.6 of the DSU). The WTO Secretariat is not involved.30 The fact that
consultations take place behind closed doors also means that there is no
formal transmission of the content of the consultations to a panel subse-
quently assigned to the matter. Panels may not, accordingly, use as a
26
The effectiveness of consultations and the opportunity provided for the parties to reach a
mutually agreed solution to the dispute are compromised if the consultations request fails
to identify the measures at issue, as required by Article 4.4 of the DSU. At the same time,
the requirement under Article 4.4 to identify the measure at issue cannot be too onerous
at this initial step in the proceedings. Appellate Body Reports, Argentina – Import
Measures, para. 5.13.
27
Appellate Body Reports, US – Shrimp (Thailand)/US – Customs Bond Directive, para. 293;
and Argentina – Import Measures, para. 5.12.
28
Appellate Body Reports, India – Patents (US), para. 94; and Argentina – Import Measures,
para. 5.12.
29
Ibid.
30
The WTO Secretariat’s involvement is administrative in nature, as the WTO Secretariat is
responsible for preparing and circulating to the membership, under the WTO/DS series,
those notifications of requests for consultation that are received by the chairperson of the
DSB. See footnote 18 in Chapter 4 concerning procedures for notification.
basis for their determination what the parties may allege to have taken
place during consultations.31
Unless otherwise agreed, the respondent must reply to the request for
consultations within ten days, and must enter into consultations in good
faith within a period of no more than thirty days after the date of receipt
of the request for consultations.32 If the respondent fails to meet either of
these deadlines, the complainant may immediately proceed to the adjudi-
cative stage and request the establishment of a panel (Article 4.3 of the
DSU). Where the respondent engages in consultations, the complainant
can proceed to request the establishment of a panel at the earliest sixty
days after the date of receipt of the request for consultations by the
respondent,33 if no satisfactory solution has emerged from the consult-
ations. However, the consultations can also be concluded earlier if the
parties jointly consider that they have failed to settle the dispute (Article
4.7 of the DSU). In practice, parties to a dispute often allow themselves
significantly more time than the minimum of sixty days.34
In cases of urgency, including those that concern perishable goods,
members must enter into consultations within a period of no more than
ten days after the date of receipt of the request.35 In such cases, the
complainant may request the establishment of a panel if the consult-
ations fail to settle the dispute within a period of twenty days36 after the
date of receipt of the request (Article 4.8 of the DSU).37
Third Parties in Consultations

A WTO member that is neither the complainant nor the respondent may
be interested in the issues that the parties to a dispute are discussing in
31
Appellate Body Report, US – Upland Cotton, para. 287.
32
Concerning the dates in official WT/DS documents and the calculation of time limits, see
footnote 10 in Chapter 4.
33 34 35 36
Ibid. Ibid. Ibid. Ibid.
37
There have been few disputes where consultations were requested pursuant to Article 4.8
of the DSU. In some cases, such as Romania – Import Prohibition on Wheat and Wheat
Flour (WT/DS240/1), the respondent explicitly rejected the claim that the case at hand
was one of urgency. In other cases, such as Peru – Tax Treatment on Certain Imported
Products (WT/DS255/1), the request for an expedited schedule was not explicitly
addressed, and the consultations themselves were held shortly after the request was made
(although not within ten days as required by Article 4.8). The only case to date where the
request pursuant to Article 4.8 of the DSU was accepted, and the consultations were
conducted within ten days, was Slovak Republic – Measure Affecting Import Duty on
Wheat from Hungary (WT/DS143/1).
their consultations. There can be various reasons for such an interest. For
instance, this other WTO member may have a trade interest and may
therefore feel similarly aggrieved by the challenged measure, may benefit
from that measure, may be concerned about the challenge because it
maintains a measure similar to that of the respondent, or it may simply
have a systemic interest in the dispute. Furthermore, a member may have
an interest in being present at discussions on any mutually agreed
solution because such a solution may affect its interests. Some WTO
members with little or no dispute settlement experience may also wish to
learn how consultations are handled by other WTO members.
The DSU provides that WTO members may request to join the
consultations if they have a “substantial trade interest” in the matter
being discussed, and if consultations were requested pursuant to Article
XXII:1 of the GATT 1994, Article XXII:1 of the GATS or the corres-
ponding provisions of the other covered agreements (Article 4.11 of the
DSU). As explained on page 52, unlike Article XXII:1, Article XXIII:1 of
the GATT 1994 does not grant a WTO member the right to join
consultations as a third party.
Article 4.11 of the DSU provides that the member wishing to join the
consultations as a third party may notify the consulting members and the
DSB within ten days38 of the date of circulation39 of the original request
for consultations. In practice, a request to join consultations is addressed
to the respondent with copies to the complainant and to the chairperson
of the DSB.40 This is so because the acceptance of the request relies on the
respondent,41 which must agree that the interested WTO member does
indeed have a substantial trade interest in the consultations. The DSU
38
See footnote 10 in Chapter 4 concerning the applicable rules on the calculation of time
periods in WTO dispute settlement proceedings.
39
Concerning the dates in official WT/DS documents and the applicable rules on the
calculation of time periods in WTO dispute settlement proceedings, see footnote 10 in
Chapter 4. As explained before (see footnote 18 in Chapter 4), the WTO Secretariat will
avoid circulation of consultation requests pursuant to Article XXII of the GATT 1994 on
a Friday or the day before a WTO official holiday.
40
Requests to join consultations are circulated by the WTO Secretariat under the WT/DS
series. See footnote 8 in Chapter 4 concerning notifications to the DSB.
41
The DSB agreed at its meeting on 27 July 2002 (WT/DSB/M/86), that members should
inform the DSB when a request to join consultations was accepted. This, however, does
not include a notification of instances where such a request has been rejected. The DSB
also agreed that the WTO Secretariat would circulate the names of members that had
been accepted to join consultations under Article 4.11 of the DSU. See also the discussion
in WT/DS200/13 (Annex VI on page 312).
does not provide a definition of substantial trade interest, nor can one be
found in the jurisprudence. At the end of the day, if the respondent
disagrees, there is no recourse through which the interested WTO
member can impose its presence at the consultations, irrespective of
the legitimacy of the invoked substantial trade interest. However, the
interested WTO member can always initiate WTO dispute settlement
proceedings and request consultations directly with the respondent.
Panel Review
Introduction
If consultations fail to settle the dispute, the complainant may request the
establishment of a panel to adjudicate the dispute.42 The panel review
stage offers the complainant the possibility to uphold its rights or protect
its benefits under the covered agreements. This procedure is equally
important for the respondent as an opportunity to defend itself because
it may disagree with the complainant on the facts and/or the correct
interpretation of the rights and obligations under the covered agree-
ments. The adjudicative stage of dispute settlement is intended to resolve
a legal dispute and both parties must accept any rulings as binding
(although they may settle the dispute amicably at any time).
Establishment of a Panel
The Panel Request
The complainant initiates the phase of adjudication by addressing a panel
request in writing to the chairperson of the DSB, with a copy issued to the
respondent. The WTO Secretariat then circulates this request as an official
document under the WT/DS series to the entire WTO membership.43 In
addition to stipulating that a panel request be in writing, Article 6.2 of the
DSU further provides that the panel request must indicate whether
42
See page 55 concerning the relevant time limits.
43
As with the request for consultations, the panel request is a public document that can be
found electronically on the WTO website. Unlike the consultations request (see footnote
18 in Chapter 4), there is no standard number for the panel request because the number
of documents emerging from a dispute after the request for consultations (WT/DS###/1)
and before the request for the establishment of a panel can vary (third parties requesting
to join the consultations, acceptance of third parties by the respondent, etc.). See page 52
concerning circulation of documents within the WT/DS series.
consultations were held,44 identify the specific measure(s) at issue,45 and
provide a brief, but sufficiently clear, summary of the legal basis of the
complaint (i.e. the claims).46
Thus, Article 6.2 of the DSU serves a pivotal function in WTO dispute
settlement and sets out two key requirements that a complainant must
satisfy in its panel request, namely: (i) the identification of the specific
measures at issue, and (ii) the provision of a brief summary of the legal
basis of the complaint (or the claims) sufficient to present the problem
clearly. Together, these two elements comprise the “matter referred to the
DSB”. A panel request forms the basis for the terms of reference of a panel,
i.e. its jurisdiction, in accordance with Article 7.1 of the DSU.47 Accord-
ingly, if either of the requirements above is not satisfied, then the matter
will not fall within the panel’s terms of reference. Moreover, institutionally
the panel request serves the due process48 objective of notifying the
respondent and third parties of the nature of the complainant’s case.49
Determining whether a panel request is “sufficiently precise”50 so as to
conform to Article 6.2 of the DSU requires a panel to scrutinize carefully
44
The purpose of the requirement to indicate that consultations were held is to inform the
DSB and WTO members whether consultations took place. The authority of a panel cannot
be invalidated by the absence, in the panel request, of an indication whether consultations
were held. The important point is whether consultations were actually held, except in those
instances where the DSU allows panels to deal with a matter in the absence of consult-
ations. Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 70.
45
For the concept of measures subject to challenge under the WTO dispute settlement
system, see page 40.
46 47
See the section on what claims can be raised on page 46. See page 64.
48
“[D]ue process is intrinsically connected to notions of fairness, impartiality, and the
rights of parties to be heard and to be afforded an adequate opportunity to pursue their
claims, make out their defences and establish the facts in the context of proceedings
conducted in a balanced and orderly manner, according to established rules.” Appellate
Body Report, Thailand – Cigarettes (Philippines), para. 147.
49
Due process is not “constitutive of, but rather follows from, the proper establishment of a
panel’s jurisdiction”. Appellate Body Report, EC and certain member States – Large Civil
Aircraft, para. 640. In China – Raw Materials, the Appellate Body found it troubling “that
the Panel, having correctly recognized that a deficient panel request cannot be cured by a
complaining party’s subsequent written submissions, nonetheless decided to ‘reserve its
decision’ on whether the panel requests complied with the requirements of Article 6.2
until after it had examined the parties’ first written submissions and was ‘more able to
take fully into account China’s ability to defend itself’”. The Appellate Body explained
that the fact that China may have been able to defend itself did not mean that the
defective panel request therefore complied with the requirements of Article 6.2 of the
DSU. Appellate Body Reports, China – Raw Materials, para. 233.
50
Appellate Body Reports, EC – Bananas III, para. 142; and US – Zeroing (Japan) (Article
21.5 – Japan), para. 108.
the language used in the panel request.51 Such a determination must be
done on a case-by-case basis. Although subsequent events in panel
proceedings, including submissions by a party, may be of some assistance
in confirming the meaning of the words used in the panel request, those
events “cannot have the effect of curing the failings of a deficient panel
request”.52 Thus, for example, if claims or measures are not identified
with sufficient clarity, the case may be rejected by the panel (or the
Appellate Body) acting on its own motion53 or as a result of an objection
by the respondent. A defective panel request may impair a panel’s ability
to perform its adjudicative function within the strict time frames contem-
plated in the DSU and may have implications for the prompt settlement
of a dispute in accordance with Article 3.3 of the DSU.54 A complainant
should therefore be particularly vigilant in preparing its panel request,
especially when numerous measures are challenged under several differ-
ent provisions of the covered agreements.55
A complainant must identify the specific measures at issue.
A complainant may do so, for example, by referring to the name, number,
date and/or place of promulgation of a particular law or regulation56 or by
providing a description of the nature of the contested measure. It is also
rather common that complainants refer, in their panel requests, to meas-
ures that amend, are related to, or implement listed measures. An assess-
ment of whether a complainant has identified the specific measures in a
particular dispute may, in some cases, depend on the extent to which those
measures are capable of being precisely identified and how much detail
concerning the measures is available in the public domain.57
51
See Appellate Body Reports, EC – Fasteners (China), para. 562; and China – Raw
Materials, para. 220.
52
Appellate Body Reports, EC – Bananas III, para. 143; US – Carbon Steel, para. 127; EC
and certain member States – Large Civil Aircraft, para. 642; EC – Fasteners (China),
para. 562; and China – Raw Materials, para. 220. Compliance with the due process
objective of Article 6.2 cannot be inferred from a respondent’s response to arguments and
claims found in a complainant’s first written submission. Appellate Body Reports, China –
Raw Materials, para. 220.
53
As a panel request is normally not subjected to detailed scrutiny by the DSB, it is
incumbent upon the panel to examine the panel request very carefully to ensure its
compliance with both the letter and the spirit of Article 6.2 of the DSU. Appellate Body
Report, EC – Bananas III, para. 142.
54
Appellate Body Reports, China – Raw Materials, para. 220.
55
56
Panel Reports, Argentina – Footwear (EC), para. 8.40; EC – Approval and Marketing of
Biotech Products, para. 7.47; and Appellate Body Report, US – Continued Zeroing, para. 168.
57
A panel request must also include a brief summary of the legal basis of
the complaint, and this must be sufficient to present the problem clearly.
A panel request cannot simply refer to a covered agreement in general or
resort to the convenient phrase “including but not necessarily limited
to”.58 Rather, identification of the specific treaty provisions claimed to
have been violated by the respondent is a minimum prerequisite in each
case. Whether a panel request sets out “a brief summary of the legal basis
of the complaint sufficient to present the problem clearly” may depend
on whether it “plainly connect[s] the challenged measure(s) with the
provision(s) of the covered agreements claimed to have been infringed”.
Furthermore, to the extent that a provision contains not one single,
distinct obligation, but rather multiple obligations, a panel request might
need to specify which of the obligations contained in the provision is
being challenged.59 Although this is not expressly regulated in the DSU,
panels have often been asked to issue a preliminary ruling on the
consistency of the panel request with the requirements contained in
Article 6.2 of the DSU. Requests for preliminary rulings by panels on
whether certain measures or claims are within the panel’s terms of
reference have become a common feature of panel work.60
Procedures for the Establishment of Panels by the DSB

Establishing a panel is one of the functions of the DSB and is one of the three
situations where a DSB decision does not require a consensus in order to be
taken.61 In the first DSB meeting at which a panel request is made, the
respondent can block the panel’s establishment, as was the case in the
dispute settlement system under GATT 1947. At the second DSB meeting
where the request is placed on the agenda, however, the panel will be
established, unless the DSB decides by consensus not to establish the panel,
i.e. the “negative” or “reverse” consensus rule is applicable (Article 6.1 of the
DSU). This second meeting usually takes place around one month later, but
the complainant can also request a special meeting of the DSB within fifteen
days of the first request, provided that at least ten days’ advance notice of the
meeting is given (footnote 5 to Article 6.1 of the DSU). The rules for
inclusion of items on the agenda of the DSB are discussed on page 26.
58
Appellate Body Report, India – Patents (US), paras. 89–90.
59
60
See the section on preliminary rulings on page 155.
61
See the section concerning the decision-making rules applicable to the DSB on page 24.
The improbability of the DSB achieving a negative or reverse consensus
means that the complainant ultimately has a guarantee that the requested
panel will be established if it so wishes. The only possibility to prevent the
establishment is a consensus in the DSB against establishment. This will
not happen as long as the complainant is unwilling to join in that
consensus. As long as the complainant, even alone and against the oppos-
ition of all other WTO members, insists on the establishment of the panel
in the second meeting at which the request is discussed, it is impossible for
the DSB to reach a consensus against establishment. Therefore, the DSB
decision to establish a panel is often described as virtually automatic.
Multiple Complainants: Joint Panels and Separate Panels with

Harmonized Proceedings
Given that governmental measures regulating trade often affect several
WTO members, more than one WTO member may take issue with a
measure alleged to have breached WTO law or impaired benefits accru-
ing under the covered agreements. Practice shows that members have
used various approaches under the dispute settlement rules to protect
their commercial interests. The most passive approach is to hold back
completely and hope that another member raises the issue, proceeds
through the dispute settlement process and ultimately secures the with-
drawal of a measure if such measure has been found to be WTO-
inconsistent. If this happens, all WTO members affected by the measure
will benefit from that withdrawal.62 Whether the member that invoked
the dispute settlement system benefits from that withdrawal to a greater
extent than the passive member(s) will largely depend on the respective
trade flows in the products or services concerned. A more active
approach has been to participate as a third party in a dispute between
two other members involving a measure of interest. Compared to the
passive option, being a third party offers the advantage of receiving
the initial submissions of the disputing parties63 and of being heard by
62
In the case of non-violation nullification or impairment, this strategy may not work
equally well because there is no obligation to withdraw the measure (Article 26.1(b) of the
DSU). The mutually satisfactory adjustment found by the parties in the implementation
phase may well provide for a benefit granted by the respondent that is particularly
beneficial to the complainant, or the complainant may withdraw a reciprocal benefit.
A passive WTO member whose benefit has also been (and continues to be) nullified or
impaired would not profit from these adjustments in the same way.
63
Unless third-party rights are “enhanced”. See page 69.
the panel and the parties. The panel report, however, will not include
conclusions and recommendations with respect to the third parties.
A third party, like any other member, can always initiate a dispute
against the respondent (Article 10.4 of the DSU). The most active
approach available is to be a complainant by requesting consultations
and establishment of a panel, either in parallel, or jointly, with other co-
complainants. Both of these variations exist in practice.
Article 9 of the DSU envisages two scenarios where more than one
member requests the establishment of a panel with respect to the same
matter: (i) whenever feasible, a single panel may be established to exam-
ine multiple complaints (Article 9.1 of the DSU);64 and (ii) in the event
that separate panels are established to examine complaints related to the
same matter, to the greatest extent possible, the same persons shall serve
as panelists on each of the separate panels and the timetable for the panel
process in such disputes shall be harmonized (Article 9.3 of the DSU).
The solutions provided in Article 9 of the DSU serve to promote a
consistent and unified approach towards different complaints. With
various panels composed of different panelists and working separately
(panel procedures are confidential until the circulation of the report),
there is a risk that the different panel reports could depart from one
another and even be contradictory.65
Concerning the first scenario, the feasibility of establishing a single panel
obviously depends on various factors. The timing of the various disputes,
for example, must be similar. If there is a long period of time between the
different panel requests, establishing a single panel may be unfeasible, for
instance, if the panel first established has already held substantive meet-
ings. When the time lag between the two disputes is limited, establishing a
single panel may be feasible if the parties, for instance, agree on a shorter
time period for consultations. For most disputes to date in which a single
panel was established, although the complainants made separate panel
requests on different dates, the single panel was established on the same
64
Pursuant to Article 10.4 of the DSU, this rationale also applies if a third party initiates its
own complaint regarding a measure that is already the subject of a panel proceeding.
65
Although the Appellate Body could rectify such inconsistencies, divergent rulings by
different panels would not enhance the credibility of these panel rulings and would not
serve the purpose of providing security and predictability to the multilateral trading
system, which is one of the goals of the dispute settlement system (Article 3.2 of the
DSU). In the most extreme scenario, if there is no appeal to rectify inconsistencies,
divergent panel conclusions and recommendations could even be mutually incompatible
and lead to difficulties in the implementation process.
day. In a few other cases, though, a single panel was established in response
to a request that first came before the DSB. When other panel requests
concerning the same matter were later placed on the DSB’s agenda, they
were consolidated with the earlier panel request to result in a single
panel.66 Nonetheless, in some cases, the complainants have made joint
panel requests.67 Where a single panel is established,68 Article 9.2 of the
DSU provides that if one of the parties to the dispute so requests, the panel
shall issue separate reports for each dispute.
Concerning the second scenario foreseen in Article 9 of the DSU, i.e.
where separate panels are established to examine complaints related to
the same matter, panels have generally been composed of the same
members69 and have mostly harmonized their timetables.70 In a few
cases, separate panels could not be composed of the same members
because, for instance, one of the members of the panel was no longer
66
See, for instance, US – Gasoline, WT/DS2; Indonesia – Autos, WT/DS54, WT/DS55, WT/
DS59, WT/DS64; US – Shrimp, WT/DS58; Canada – Autos, WT/DS139, WT/DS142;
Chile – Alcoholic Beverages, WT/DS87, WT/DS110; India – Autos, WT/DS146, WT/
DS175; Korea – Various Measures on Beef, WT/DS161, WT/DS169; US – Offset Act (Byrd
Amendment), WT/DS217, WT/DS234; US – Steel Safeguards, WT/DS248, WT/DS249,
WT/DS251, WT/DS252, WT/DS253, WT/DS254, WT/DS258, WT/DS259; EC – Chicken
Cuts, WT/DS269, WT/DS286; EC – IT Products, WT/DS375/9, WT/DS376, WT/DS377;
China – Raw Materials, WT/DS394, WT/DS395, WT/DS398; Philippines – Distilled
Spirits, WT/DS396, WT/DS403; EC – Seal Products, WT/DS400, WT/DS401; Dominican
Republic – Safeguard Measures, WT/DS415, WT/DS416, WT/DS417, WT/DS418; China –
Rare Earths, WT/DS431, WT/DS432, WT/DS433; and Australia – Tobacco Plain Pack-
aging, WT/DS434/12, WT/DS435/17, WT/DS441/16, WT/DS458/15, WT/DS467/16.
67
For instance, EC – Bananas III, WT/DS27; US – Shrimp, WT/DS58, US – Offset Act (Byrd
Amendment), WT/DS217, WT/DS234; EC – IT Products, WT/DS375/9, WT/DS376, WT/
DS377; and Argentina – Import Measures, WT/DS438, WT/DS444, WT/DS445.
68
See page 103.
69
For example, EC – Hormones (US) and EC – Hormones (Canada), WT/DS26, WT/DS48;
India – Patents (US) and India – Patents (EC), WT/DS50, WT/DS79; Argentina – Textiles
and Apparel/Argentina – Textiles and Clothing, WT/DS56, WT/DS77; US – 1916 Act (EC)
and US – 1916 Act (Japan), WT/DS136, WT/DS162; US – Shrimp (Thailand) and US –
Customs Bond Directive, WT/DS343, WT/DS345; India – Wines and Spirits and India –
Additional Import Duties, WT/DS360, WT/DS380; Canada – Renewable Energy and
Canada – Feed-in Tariff Program, WT/DS412, WT/DS426; and China – HP-SSST
(Japan)/China – HP-SSST (European Union), WT/DS454, WT/DS460.
70
Examples of separate panels that harmonized their timetables are, for instance, the
separate panels in US – Shrimp (Thailand) and US – Customs Bond Directive, WT/
DS343, WT/DS345; the separate panels in India – Wines and Spirits and India –
Additional Import Duties, WT/DS360, WT/DS380; the separate panels in Canada –
Renewable Energy and Canada – Feed-in Tariff Program, WT/DS412, WT/DS426; and
the separate panels in China – HP-SSST (Japan)/China – HP-SSST (European Union),
WT/DS454, WT/DS460.
available.71 This has been the case, typically, where there was a substan-
tial time difference between both proceedings. In such cases, the separate
panels could generally not harmonize their timetables.
In addition to the two scenarios contemplated in Article 9 of the DSU,
a third, novel, scenario has also arisen: disputes with related subject
matter where separate panels with the same members were established.72
The Panel’s Terms of Reference

Panels have “standard” terms of reference, unless the parties to the
dispute agree otherwise within twenty days73 from the establishment of
the panel (Article 7.1 of the DSU). If other, non-standard terms of
reference are agreed upon, any member may raise any point relating
thereto in the DSB (Article 7.3 of the DSU). To date, special terms of
reference were agreed upon in only one case.74
Under the standard terms of reference envisaged by Article 7, panels are
directed to examine, in light of the provisions of the covered agreements
cited by the parties to the dispute, the “matter referred to the DSB” by the
complainant, in its panel request.75 The panel’s terms of reference are
71
For instance, in India – Patents (US) and India – Patents (EC), the latter dispute had the
same panelists as the first dispute except for the chairperson, who was no longer available
by the time of the constitution of the India – Patents (EC) panel. See Notes by the
Secretariat, India – Patents (US), WT/DS50/5, 5 February 1997; and India – Patents (EC),
WT/DS79/3, 27 November 1997.
72
Arguably, the US – Continued Suspension and Canada – Continued Suspension proceed-
ings resulted in a third scenario not covered by Article 9 of the DSU. Both disputes
concerned different but related measures: the countermeasures imposed by the United
States and Canada, respectively, on the European Union following the DSB’s authoriza-
tion of those countermeasures in the EC – Hormones disputes. While the panels did not
expressly mention Article 9.3 of the DSU in either of the reports, which concerns
complaints related to the same matter, the panels followed the procedure prescribed in
that provision by having the same panelists adjudicate both disputes and by harmonizing
the timetables for both panel proceedings. Panel Report, US – Continued Suspension/
Canada – Continued Suspension, paras. 1.2–1.8.
73
See footnote 10 in Chapter 4 concerning the applicable rules on the calculation of time
periods in WTO dispute settlement proceedings.
74
In Brazil – Desiccated Coconut, the Philippines and Brazil agreed on special terms of
reference (WT/DS22/6).
75
Nowadays, the standard terms of reference that appear in the document announcing the
composition of a panel in a given case (therefore, under the WT/DS series) read as follows:
To examine, in the light of the relevant provisions of the covered agree-
ments cited by the parties to the dispute, the matter referred to the DSB by
the [complainant] in document WT/DS. . . [the panel request] and to make
therefore defined with reference to the panel request. The vesting of jurisdic-
tion in a panel is a fundamental prerequisite for lawful panel proceedings.76
Only the specific measures and claims identified in the panel request
may become the object of panel review.77 This means that a panel can
examine only those measures identified in the panel request and only
with respect to the provisions of the covered agreements specifically
stated in that request.
In addition to being identified in the panel request, and as a general
rule, the measures included in a panel’s terms of reference are those in
existence at the time of the establishment of the panel.78 Nonetheless,
nothing prevents a panel from examining a measure identified in the
panel request even if the measure has expired, as long as the effects of the
measure are alleged to have been impairing the benefits accruing to the
complainant under a covered agreement at the time when the panel was
established.79 In GATT/WTO practice, panels have refrained from con-
sidering measures that have expired, or that have been abandoned or
revoked, prior to the establishment of the panel. In exceptional circum-
stances, panels have ruled on expired measures, taking into account
various parameters, such as whether the measure is included in the
terms of reference,80 the possibility of the measure being reintroduced,81
such findings as will assist the DSB in making the recommendations or in

giving the rulings provided for in those agreements.
76
Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 36. A panel cannot,
for instance, rule on claims not included in the panel request and thereby assume
jurisdiction that it does not have (Appellate Body Report, Indonesia – Patents (US),
para. 92). Indeed, a panel will be deemed to act ultra petita (i.e. ruling on questions that
are not submitted to it) if it makes a finding under a provision or claim that was not
included in the panel request (Appellate Body Report, Mexico – Corn Syrup (Article 21.5 –
US), para. 36). Panels are, however, free to develop their own reasoning on the claims and
defences that have been raised by the parties. Notably, panels are entitled to refer in their
reasoning to provisions not cited in the panel request (Appellate Body Report, Argentina –
Footwear (EC), para. 74).
77
Appellate Body Report, Brazil – Desiccated Coconut, pages 21–22; and Appellate Body
Report on EC – Bananas III, para. 142.
78
Appellate Body Report, EC – Chicken Cuts, para. 156.
79
Appellate Body Report, EC – Selected Customs Matters, para. 184. See also Appellate Body
Report, US – Upland Cotton, para. 263.
80
See Panel Reports, Turkey – Rice, para. 7.180; US – Wool Shirts and Blouses, para. 6.2; and
Indonesia – Autos, para. 14.9. See also GATT Panel Reports, EEC – Dessert Apples (Chile);
EEC – Apples (US); and EEC – Apples (Chile I); EEC – Oilseeds I.
81
See Panel Report, India – Additional Import Duties, paras. 7.69–7.70. See also GATT
Panel Report, EEC – Apples (Chile I).
whether there is lack of agreement between the parties on terminating the
process,82 whether the effects of the expired measures continue to impair
benefits for another member under the covered agreements,83 whether a
decision on the measures would assist the resolution of the dispute,84 and
other parameters. Additionally, panels may examine a measure that
replaces or amends a measure included in the panel request, as long as
the replacement or amendment does not change the “essence” of the
measure identified in the panel request.85
Conversely, there are times when challenges concern domestic legisla-
tion that has already been adopted, but has not yet entered into force. In
other words, the law has been adopted in its final form, but with the
stipulation that it will be effective only as of a future date. Several panels
have addressed this and have found that the challenge was not premature
because the entry into force was automatic at a future date and did not
depend on further legislative action.86
Third Parties before the Panel

“Substantial Interest”
The complainant(s) and the respondent are the parties to a dispute.
Other WTO members have an opportunity to be heard by panels and
to make written submissions as third parties, even if they have not
participated in the consultations. To participate in the panel proceedings,
these WTO members must have a “substantial interest” in the matter
before the panel and they must notify their interest to the DSB (Article
10.2 of the DSU). This requirement differs from that of the consultations
stage, where members wanting to join as third parties in the
82
See GATT Panel Report, US – Canadian Tuna, para. 4.3; and Panel Report, US – Wool
Shirts and Blouses, para. 6.2.
83
See Panel Reports, Indonesia – Autos, para. 14.206; and US – Upland Cotton, para. 7.1201.
84
See Panel Report, India – Additional Import Duties, para. 7.70.
85
Appellate Body Reports, Chile – Price Band System, para. 139; and EC – Chicken Cuts,
paras. 157–161.
86
See Panel Reports, Russia – Tariff Treatment, paras. 7.102–7.105; and Turkey – Textiles,
para. 9.37 (citing GATT Panel Reports on US – Superfund, EEC – Parts and Components
and US – Malt Beverages). In Turkey – Textiles, the panel found that even though the legal
effect of such a measure will only occur in the future, the measure had already had an
impact on the market participants engaging in international trade prior to its entry into
force because these market participants typically plan their transactions ahead of time.
See also Panel Reports, US – Countervailing Measures on Certain EC Products (Article
21.5 – EC), para. 7.37; and China – Auto Parts, fn. 202.
consultations are required to have a “substantial trade interest” and, in
practice, must be accepted by the respondent.87 Also, unlike at the
consultations stage, neither disputing party has the right to prevent
another WTO member from being a third party. In practice, requiring
just a “substantial interest”, which could be of a systemic nature, leaves
the door open to any WTO member wanting to become a third party to
panel proceedings, without the respondent being able to block it. As
explained in the next section, certain limits may, however, exist relating
to the timing of the request to reserve third-party rights in panel
proceedings.
Timing of the Request

Unlike Article 4.11 of the DSU, which provides a ten-day deadline for a
third party to join in consultations, Article 10 of the DSU – and the DSU
as a whole – is silent on the deadline for a WTO member to request to
join panel proceedings as a third party. WTO members are merely
required to notify the DSB of their substantial interest in the matter
and thus reserve their third-party rights (Article 10.2 of the DSU). The
absence of a deadline is troublesome because a late request by a WTO
member to become a third party may trigger difficulties with regard to
the panel selection process and may potentially delay the “prompt
settlement” of the dispute at issue for disputing parties. Indeed, the
DSU indicates that citizens of third parties cannot serve on panels
without the parties’ approval.88 It may well happen that a citizen of a
WTO member is selected as a panelist and that WTO member subse-
quently notifies its interest as a third party.
To prevent such an outcome, on 21 June 1994, the GATT Council
agreed on a Chairman’s Statement inviting members (then contracting
parties to the GATT 1947) to notify their third-party interest on the day a
panel is established, and if that is not possible, within ten days from the
date of the establishment of the panel.89 Since the entry into force of the
WTO, the chairperson of the DSB, after declaring the establishment of a
panel, invites WTO members interested in participating as third parties
to reserve their rights to do so at that DSB meeting or in writing within
ten days of the establishment of the panel.
87
See page 55 for a discussion on the requirements and the process to join consultations as a
third party.
88 89
Article 8.3 of the DSU. C/COM/3, 27 June 1994. See also C/M/273, 12 July 1994.
The legal status of the Chairman’s Statement and thus of the ten-day
deadline is still undecided by WTO members. In practice, WTO
members generally comply with this deadline, but an issue may arise
when there is a notification after ten days from the establishment of a
panel.90 In some early panel proceedings, the DSB chairperson rejected
third-party requests that were made after those ten days.91 In later panel
proceedings, the decision fell on the panels and they have shown more
flexibility. Some have, after consultation with the parties, leaned towards
accepting those requests.92
Third-party Rights
Limited Rights Granted by the DSU Under the DSU, a WTO member
participating as a third party in a dispute is afforded limited rights. This
is because the DSU draws a clear distinction between the rights granted
to parties and to third parties in WTO dispute settlement proceedings. In
particular, the DSU explicitly grants three “legal” rights to third parties in
panel proceedings.93
The first right is the “opportunity to be heard by the panel” (Article
10.2 of the DSU), which, pursuant to panel working procedures, may be
exercised, further to a written invitation by the panel, during a session
(set aside for that purpose) of the first substantive meeting of the panel
with the parties (Appendix 3, paragraph 6).94
Next, third parties have the “opportunity . . . to make written submis-
sions to the panel” (Article 10.2 of the DSU). The timetable for panel
proceedings in Appendix 3 of the DSU does not foresee a deadline for
providing these views in writing. In practice, panels fix a deadline for
third-party submissions, typically one or two weeks after the respond-
ent’s first written submission for original panel proceedings. In
90
This notification is made to the DSB chairperson when the panel has not yet been
composed. Upon its composition, the notification is addressed to the panel via the DS
Registry.
91
For instance, Brazil – Aircraft and EC – Bed Linen.
92
For instance, EC – Export Subsidies on Sugar; Turkey – Rice; US – Shrimp (Thailand);
China – Electronic Payment Services; China – Rare Earths; EC – Seal Products or the
Australia – Tobacco Plain Packaging disputes.
93
Members participating as third parties under Article 10 of the DSU have, inter alia, a legal
right to make submissions to, and a legal right to have those submissions considered by, a
panel. Appellate Body Report, US – Shrimp, para. 101.
94
Any third party invited to present its views in accordance with Article 10 shall make available
to the panel a written version of their oral statements (Appendix 3, paragraph 9).
compliance panel proceedings and in the event of preliminary ruling
requests, panels may set more than one deadline for third parties.
Finally, third parties “shall receive the submissions of the parties to the
dispute to the first meeting of the panel” (Article 10.3 of the DSU). This
wording has been interpreted as allowing third parties to receive not only
the parties’ first written submissions, but also any other submission
received by the panel before the first substantive meeting of the panel
with the parties.95 This could include those submitted in connection with
preliminary ruling requests96 or the second written submissions of the
parties in compliance panel proceedings,97 as these are exchanged before
the first, and usually only, substantive meeting of the panel in this type of
proceedings.
The above-mentioned three legal rights are just that – rights, not
obligations. Hence, third parties are not obliged to provide their views
in writing or orally to the panel. In fact, it is not unusual for third parties
to attend the third-party session without making any oral statements.
Still, third parties are subject to the same requirement to maintain the
confidentiality of panel proceedings98 as are parties pursuant to Article
18 of the DSU.99 In addition, third parties are also subject to the general
obligation to cooperate with panels that Article 13.1 of the DSU imposes
on all members.100
Enhanced Third-party Rights In addition to the limited rights foreseen

in the DSU, panels have on occasion granted so-called “enhanced third-
party rights”.101 Upon request from one or more of the third parties and
95
Appellate Body Report, US – FSC (Article 21.5 – EC), para. 245.
96
For instance, Panel Reports, Canada – Wheat Exports and Grain Imports, para. 6.6;
Australia – Salmon (Article 21.5 – Canada), paras. 7.5–7.6; and US – Upland Cotton,
para. 3. See also page 155 concerning preliminary ruling requests.
97
See the section on compliance panel proceedings under Article 21.5 of the DSU on
page 136.
98
Panel Report, Mexico – Corn Syrup, para. 7.41.
99
See the section on confidentiality rules applicable to panel proceedings on page 161.
100
See the section dealing with the WTO members’ obligation to “respond promptly and
fully” to any request for information from a panel in Article 13.1, third sentence of the
DSU on page 98.
101
A report by the chairperson of the Special Session of the DSB indicates that, in the DSU
negotiations, “there is broad support for enhancing third-party rights at the panel
stage to a level comparable to what has been granted on a case-by-case basis as extended
third-party rights by panels to date, and for the possibility of granting further enhanced
third-party rights on a case-by-case basis”; and “[s]everal Members have expressed a
preference for preserving the current flexibility for the panel to decide whether to grant
after having consulted the parties to a dispute, panels can exercise their
discretion and decide whether to grant enhanced rights to third
parties.102
There is no standard list of enhanced rights granted to third parties.
Panels have considered different circumstances on a case-by-case basis in
order to determine specific enhanced rights that can best achieve the
effective participation of third parties in a particular dispute, taking into
account the parties’ and third parties’ interests. The types of enhanced
third-party rights most commonly granted by panels include the right to
attend the entirety of the first substantive and second substantive meet-
ings as observers; the right to receive a copy of the panel’s questions to
the parties and other third parties posed in the context of the first
substantive meeting; the right to receive the written rebuttals (i.e. second
written submissions) of the parties before the second meeting of the
panel and the parties’ responses to the panel questions; and the right to
make a brief statement in a special session set aside for third parties in
the context of the second substantive meeting.103
The reasons given by panels to justify the granting of enhanced third-
party rights include the economic interests of developing countries,104
the impact of the measure at issue on the trade policy or economic
interests of a third party, including developed countries,105 or simply
procedural motivations.106
such additional rights or not in light of the circumstances of the case”. Special Session of
the Dispute Settlement Body, Report by the Chairman, 18 July 2008, TN/DS/25.
102
When enhanced third-party rights are requested, panels have, in principle, the discretion
to decide whether to grant such enhanced rights and to what extent. Appellate Body
Reports, EC – Hormones, para. 154; US – 1916 Act, para. 150; and Panel Report, EC –
Export Subsidies on Sugar, para. 2.3. See also Panel Reports, Canada – Feed-In Tariff
Program/Canada – Renewable Energy, para. 1.11; and US – COOL (Article 21.5 –
Canada/Article 21.5 – Mexico), paras. 1.15–1.16.
103
See, for instance, Panel Reports, EC – Tariff Preferences, Annex A, para. 8; EC – Export
Subsidies on Sugar (Australia), para. 2.6; EC – Bananas III (Article 21.5 – US), para. 1.5;
EC – Bananas III (Article 21.5 – Ecuador), para. 1.5; EC – Hormones (US), para. 8.15;
EC – Hormones (Canada), paras. 8.12–8.20; and EC – Hormones (Article 22.6) (US and
Canada), para. 7.
104
See Panel Reports, EC – Bananas III, para. 7.8; EC – Export Subsidies on Sugar, para. 2.5;
EC – Bananas III (Article 21.5 – United States), para. 1.5; EC – Tariff Preferences, Annex
A, para. 7; and US – Large Civil Aircraft (2nd complaint), para. 7.16.
105
For example, Panel Reports, EC – Tariff Preferences, Annex A, para. 7; US – Large Civil
Aircraft (2nd complaint), para. 7.16; and EC and certain member States – Large Civil
Aircraft, paras. 7.166–7.168.
106
For instance, in EC – Hormones (Canada) and EC – Hormones (US), the two separate
panels had the same members and were asked to examine the same measure. The panels
Panels have emphasized that the line distinguishing parties’ rights
from third parties’ rights should not be blurred by granting enhanced
third-party rights in circumstances that do not warrant the granting of
such extended rights.107 Other procedural issues, such as possible delay
in the proceedings, changes in timetables and confidentiality of closed
sessions, were considered by panels as relevant factors against the
granting of enhanced rights.108 WTO jurisprudence to date suggests that
panels have been cautious in granting enhanced rights to third parties.
However, once a panel decides to grant enhanced third-party rights, such
rights are normally provided to all third parties, not just the requesting
third party.109
Panel Composition
After a panel has been established by the DSB, it still must be composed
because there are no permanent panels or panelists in the WTO. Instead,
panels must be composed ad hoc for each dispute.
Each panel is composed of three members unless the parties to the
dispute agree, within ten days from the establishment of the panel, to a
panel composed of five members (Article 8.5 of the DSU).110 The
wanted “to avoid repetition of arguments and/or questions” and decided to hold a joint
meeting with experts, to give access to all of the information submitted under each panel
proceeding to the parties in the other panel proceeding, including the parties’ second
written submissions, written versions of oral statements, questions raised by the panel
and the parties in each case and the answers to these questions, as well as all scientific
documentation submitted by the parties. Panel Reports, EC – Hormones (US), para. 8.15;
EC – Hormones (Canada), paras. 8.12–8.20. See also Panel Reports, EC – Tariff Prefer-
ences, Annex A, para. 7(b); EC – Bananas III (Guatemala and Honduras), para. 7.8; and
US – Large Civil Aircraft (2nd complaint), para. 7.16.
107
For instance, the panel in EC – Bananas III granted part of the requested enhanced
rights, but denied third parties the right to review the Descriptive Part of the report in
the interim review process to avoid blurring the parties’ and third parties’ rights. Panel
Report, EC – Bananas III, para. 7.9. See also Panel Reports, EC – Tariff Preferences,
Annex A, para. 7; EC – Export Subsidies on Sugar (Australia), para. 2.7; and EC and
certain member States – Large Civil Aircraft, paras. 7.166–7.168.
108
See, for example, Panel Reports, US – 1916 Act, paras. 6.29–6.36; US – Customs Bond
Directive, paras. 7.3–7.4; and China – Raw Materials, para. 1.7. See also Panel Reports,
Dominican Republic – Safeguard Measures, para. 1.8; US – Large Civil Aircraft (2nd
complaint), paras. 7.14–7.18; China – Rare Earths, para. 7.9; Argentina – Import Meas-
ures, para. 1.24; US – Washing Machines, paras. 1.11–1.12; and India – Solar Cells,
paras. 1.10, 7.32–7.35.
109
Panel Report, EC – Export Subsidies on Sugar (Australia), para. 2.7.
110
As of 1 December 2016, all panels have been composed of only three members.
Secretariat proposes nominations for the panel to the parties to the dispute
(Article 8.6 of the DSU). Potential candidates must meet certain require-
ments in terms of expertise and independence (Articles 8.1 and 8.2 of the
DSU).111 The WTO Secretariat maintains an indicative list of names of
governmental and non-governmental persons from which panelists may
be drawn (Article 8.4 of the DSU), although other names can be con-
sidered as well. WTO members regularly propose names for inclusion in
that list, and, in practice, the DSB almost always approves their inclusion
without debate. As noted, it is not necessary to be on the indicative list in
order to be proposed as a potential panel member in a specific dispute.
A citizen of a party or a third party to a dispute cannot serve as a
panelist without the agreement of the parties (Article 8.3 of the DSU).
When a dispute is between a developing country member and a
developed country member, the panel must, upon request by the
developing country member, include at least one panelist from a develop-
ing country member (Article 8.10 of the DSU). Traditionally, many
panelists are trade delegates of WTO members or capital-based trade
officials, but former Secretariat officials, government officials and aca-
demics may also serve as panelists. All panelists serve on a part-time
basis, in addition to their usual professional activities. For more details
on this issue, see page 29.
When the WTO Secretariat proposes qualified individuals as panelists,
the DSU provides that the parties must not oppose these nominations
except for compelling reasons (Article 8.6 of the DSU). In practice,
however, parties make quite frequent use of this clause. In such cases,
there is no review of the reasons given. Rather, the WTO Secretariat seeks
to propose other names. If there is no agreement between the parties on
the composition of the panel on that basis within twenty days after the
date of its establishment by the DSB, either party112 may request the
111
The Ministerial Decision on Certain Dispute Settlement Procedures for the General
Agreement on Trade in Services, adopted in Marrakesh on 15 April 1994, and paragraph
4 of the GATS Annex on Financial Services, expressly provide for the selection of
panelists to ensure that panels have the relevant specific expertise in the sector that is
the subject of the dispute.
112
Where a panel is composed by the Director-General, the request for such composition is
submitted, in most cases, by the complainant. To date, the respondent has requested the
Director-General to compose a panel in very few cases, such as Canada – Wheat Board
and Australia – Tobacco Plain Packaging. In Chile – Alcoholic Beverages the complainant
and the respondent each submitted a request for the Director-General to compose
the panel.
Director-General of the WTO to determine the composition of the
panel.113 Within ten days of receipt of such request, the Director-General
appoints the panel members in consultation with the chairperson of the
DSB and the chairperson of the relevant council or committee, after
consulting the parties (Article 8.7 of the DSU). This procedure is import-
ant because it prevents a respondent from blocking the entire panel
proceedings by delaying (possibly forever) the composition of the panel,
which is what sometimes happens in other systems of international
dispute resolution. Of course, the parties are always free to devote more
than twenty days to attempt to agree on the composition of the panel so
long as none of the parties requests the Director-General to intervene.114
The selected panelists must fulfil their task in full independence and
not as representatives of a government or other organization for which
they may happen to work. Members are encouraged to permit their
officials to serve as panelists (Article 8.8 of the DSU) but are prohibited
from giving instructions to panelists or seeking to influence them with
regard to matters before the panel (Article 8.9 of the DSU). The rules of
conduct applicable to panelists are discussed on page 37.
Once the panel is composed, the WTO Secretariat circulates an official
document in the WT/DS series, in which the names of the panelists are
announced. That document also includes the panel’s terms of refer-
ence115 as well as the WTO members that have reserved their rights to
participate in the relevant panel proceedings as third parties.116
The Panel Review Process

Panel Working Procedures and Timetable for
Panel Proceedings
Once established and composed, the panel exists as a collegial body and
can start its work with the assistance of a team of lawyers and, depending
on the subject matter of the case, economists or other staff from the
113
This procedure is available whether the disagreement relates to one, two or all three
panel members.
114
For a comprehensive discussion of the panel composition process, see R. Malacrida,
“WTO panel composition: Searching far and wide for administrators of world trade
justice”, in G. Marceau (ed.), A History of Law and Lawyers in the GATT/WTO: The
Development of the Rule of Law in the Multilateral Trading System (Cambridge Univer-
sity Press, 2015), p. 434.
115
See the section on the panel’s terms of reference on page 64.
116
See the section dealing with third-party rights in panel proceedings on page 66.
WTO Secretariat.117 One of the first tasks for the panel is to draw up its
working procedures (Article 12.1 and 12.2 of the DSU) and a timetable
for its work (Article 12.3 of the DSU). Article 12 of the DSU encourages
panels to follow the working procedures and timetable in Appendix 3 of
the DSU but still offers a certain degree of flexibility, as the panel can
follow different procedures after consulting the parties (Article 12.1 of
the DSU, paragraph 11 of Appendix 3). Indeed, the DSU – in particular
its Appendix 3 – leaves panels a margin of discretion to deal with specific
situations that may arise in a particular case and that are not explicitly
regulated, provided that panels act in accordance with due process.118 In
practice, panels generally follow the working procedures of Appendix
3 of the DSU as they have evolved over time. Indeed, the evolution of
panel proceedings has resulted in new aspects being addressed in the
working procedures, such as preliminary ruling requests, consultation
with experts, business confidential information or executive summar-
ies119 of the parties’ submissions. Examples of panel working procedures
are included in Annex III (page 250).
The same occurs with respect to the timetable for panel work, which
sets dates and deadlines for the key stages of the panel proceedings (for
example, the dates by which submissions have to be filed and the oral
hearings – known as the first and second substantive meetings – must
take place, and when the interim and the final panel reports are to be
issued, etc.). As with the working procedures, panels follow the suggested
timetable in Appendix 3 to the DSU, but additional stages have been
117
The staff members of the WTO Secretariat team assigned to a given panel will depend on
the subject matter of the dispute. The Legal Affairs Division will staff all cases except
those dealing with anti-dumping measures, subsidies and countervailing measures or
safeguards, which will be normally staffed by lawyers from the Rules Division. On
occasion, lawyers from both divisions cooperate on a case dealing with issues falling
under the purview of the Rules Division. For disputes that do not fall under the purview
of the Rules Division, the legal team may include a staff member from relevant operative
divisions (for instance, Agriculture and Commodities, Market Access, Trade and the
Environment, etc.).
118
Appellate Body Report, EC – Hormones, fn. 138 to para. 152.
119
In drawing up their working procedures for a specific dispute, panels request the parties
and third parties to submit executive summaries of their submissions, preferably an
integrated executive summary of their arguments as presented in their written submis-
sions, statements and responses to questions. The description of the arguments of the
parties and third parties in the descriptive part of the panel report will thus consist of
these executive summaries, which are typically annexed to the panel report. However,
these executive summaries will not in any way serve as a substitute for the submissions
of the parties and third parties in the panel’s examination of the case.
added to the timetable as a result of the evolution of the proceedings over
time. In addition to a deadline for third parties to submit their views in
writing – a stage not reflected in the timetable in Appendix 3 – timetables
now include deadlines for responses to preliminary ruling requests, for
responses to questions and comments on those responses, for executive
summaries, etc. In the event that one or more parties submit their
arguments in an official language other than the language of the panel,120
the timetable is likely to include a series of deadlines for translation into
the panel’s working language. Examples of timetables for panel proceed-
ings are included in Annex IV (page 275).
In a dispute concerning the SPS Agreement, depending on the nature
of the dispute, the possibility of the panel consulting with experts and/or
international organizations may also be considered within its working
procedures and timetable. Given how lengthy the process can be, there is
a benefit in seeking the parties’ views as soon as possible on whether
experts should be consulted. This allows the panel, if need be, to begin its
search for potential experts in good time. The aim is to reduce the delays
that have arisen in the past due to a protracted search for experts after the
first substantive meeting. Once a panel receives the parties’ views on
whether experts should be consulted, it is in a position to consult with the
parties on the timetable and working procedures to be adopted with
respect to any consultations with experts or international organizations.
The procedures for consultations with individual experts and inter-
national organizations are developed by panels for each particular case,
taking into account the parties’ views. These procedures have evolved
progressively and have become streamlined over recent years. Generally,
panels, in cooperation with the parties, draft a list of questions to be
answered by the experts, covering the scientific issues on which the
parties disagree. The experts are typically requested to provide written
answers.121 Then, after the panel and the parties have an opportunity to
120
To date, a few panel proceedings have been fully conducted in a WTO official language
other than English. For instance, EC – Asbestos was conducted in French and Dominican
Republic – Safeguards, Peru – Agricultural Products, Colombia – Textiles and Argentina –
Financial Services were conducted in Spanish. In addition, there have been a number of
proceedings in which the language of the submissions of one or more of the parties was
Spanish while the working language of the panel was English.
121
In recent years, the responses to questions and the transcript of the discussions, given
their length, are published in documents separate from the main body of the panel
report. These separate documents are not translated into the other two official languages.
For instance, in Australia – Apples, the responses to questions by experts were published
review and comment on the answers received, a meeting is held to allow
the panel and the parties to discuss these answers and to ask questions
directly to the experts.122 The meeting with the experts and/or represen-
tatives from international organizations123 is often held during the week
of the second substantive meeting. The panel report reflects the expert
consultation procedure. The sample working procedures in Annex III.A
(page 250) include detailed procedures for the consultation of experts. An
example of a timetable for panel proceedings, including consultation with
scientific experts and international organizations, can be found in Annex
IV.B (page 276).
Once the panel has agreed on draft working procedures and a
timetable, these are sent to the parties in advance of the organizational
meeting of the panel124 with the parties, where their views will be heard.
The DSU requires the panel to consult with the parties on these matters
but the parties’ views are not binding on the panel. After consultation
with the parties, the panel will adopt its timetable and working proced-
ures, which may still change over time depending on the circumstances
of the case. Article 12.3 of the DSU requires the panel to adopt its
timetable as soon as possible, preferably within one week of the panel’s
composition. This deadline is usually respected, although in some cases
the panel may need to ask the parties for their views in writing, followed
by comments on each other’s views, which may take more time.
The DSU foresees specific deadlines for the completion of panel
proceedings; these deadlines underline the importance the members
attribute to a “prompt settlement”125 of WTO disputes. As a general
rule, a panel is required to issue the final report to the parties within six
months from the date when it was composed (and, as the case may be,
the date when the terms of reference were agreed upon), but in practice
panel processes last eleven months on average. In cases of urgency, the
in document WT/367/11 and the transcript of the meeting with the experts was
circulated as document WT/367/12.
122
For instance, see Panel Reports, EC – Approval and Marketing of Biotech Products, paras.
7.26–7.29; and Japan – Apples, para. 6.2.
123
In India – Agricultural Products, the panel decided to conduct a written consultation
with the relevant international organization and a written and oral consultation with
individual experts. See Panel Report, India – Agricultural Products, para. 1.23.
124
The organizational meeting is usually chaired by a Geneva-based panelist, where pos-
sible. It is not necessary, however, for all three panelists to be present at this meeting.
Lately, organizational meetings have been chaired by a panel member, typically the panel
chairperson, by video conference.
125
Article 3.3 of the DSU.
panel attempts to issue its report to the parties within three months from
the date of its composition (Article 12.8 of the DSU). When the panel
believes that it cannot issue its report within six months (or three months
in cases of urgency), it must inform the DSB in writing of the reasons for
the delay and provide an estimate of the period within which it will issue
its report. The period from the establishment of the panel to the circula-
tion of the report to the members should in no case exceed nine months
(Article 12.9 of the DSU). In practice, however, and leaving aside excep-
tionally lengthy disputes, that period is thirteen months, including an
average of two months for panel selection.126 Panels may suspend their
work at any time at the request of the complainant for a period not
exceeding twelve months. Such suspensions normally serve to allow the
parties to find a mutually agreed solution, which is, as described earlier,
the preferred outcome under the DSU (Article 3.7 of the DSU). If the
suspension exceeds twelve months, the authority for the establishment of
the panel lapses (Article 12.12 of the DSU). If the matter remains
unresolved, the complainant would need to initiate dispute settlement
proceedings once again to obtain a resolution of the matter.
Accelerated procedures are available under the terms of the Decision
of 5 April 1966127 when a developing country member brings a com-
plaint against a developed country member and the developing country
member makes use of its right to invoke those accelerated procedures
(Article 3.12 of the DSU).128
In addition, the SCM Agreement provides for accelerated procedures
with several shorter time periods with respect to disputes on prohibited
subsidies and actionable subsidies. Regarding prohibited subsidies, the
complainant may request the establishment of a panel if consultations
have not led to a mutually agreed solution within thirty days, and the
DSB must immediately establish the panel, unless there is a consensus
not to do so (Article 4.4 of the SCM Agreement). In other words, in a
departure from the normal rules, the negative or reverse consensus rule
applies at the first, and not just the second DSB meeting at which the
request for establishment of the panel appears on the DSB agenda. The
126
From the panel composition to the issuance of the final report to the parties.
127
BISD 14S/18. See Annex VIII (page 320) for the text of the Decision. See also the section
describing the accelerated procedures provided for in this Decision on page 178.
128
As explained on page 179, this decision has been used by Colombia and Panama to
solicit the good offices of the Director-General in the long-standing EC – Bananas III
dispute. See, for instance, the Report by the Director-General on the Use of His Good
Offices, WT/DS361/2; WT/DS364/2.
panel must circulate its report to all WTO members within ninety days of
the date of its composition and the establishment of its terms of reference
(Article 4.6 of the SCM Agreement). Dispute settlement with respect to
actionable subsidies is also subject to some specific deadlines, including at
the panel stage. For instance, the composition and terms of reference of
the panel must be established within fifteen days from the date of the
establishment of the panel (Article 7.4 of the SCM Agreement), and the
panel must circulate its report to all members within 120 days of the date
of its composition and the establishment of its terms of reference (Article
7.5 of the SCM Agreement).
In addition to the existing rules and procedures, since 2010 the WTO
Secretariat has conducted informal consultations with WTO members,
former panelists, trade law practitioners and WTO Secretariat experts
involved in the WTO dispute settlement system with a view to exploring
ways to find efficiency gains in the panel review process. See page 184.
Written Submissions
Before the first hearing (referred to in the DSU as the “first substantive
meeting of the panel with the parties”129) and in accordance with the
timetable adopted by the panel, each party files a first written submis-
sion130 in which it presents the facts of the case and its arguments. The
complainant is asked to file its written submission first, followed by the
respondent a few weeks after. Third-party submissions are usually due a
couple of weeks after the respondent’s first written submission. Simul-
taneous second written submissions (rebuttals) are due prior to the
second substantive meeting of the panel, also in accordance with the
timetable adopted by the panel. As mentioned earlier, panel working
procedures usually foresee the possibility of preliminary ruling requests
by the parties. The standard procedure nowadays is that any party
wanting to submit such a request must do so at the earliest possible
opportunity and in any event no later than its first written submission to
the panel. If the complainant requests such a ruling, the respondent is
typically requested to submit its response to the request in its first written
submission. If the respondent makes the request, the panel will usually
set a deadline for the complainant to respond to the request prior to the
129
See for example Appendix 3 of the DSU, including the template for panel working
procedures, para. 3.
130
In order to facilitate the work of the panel, each party and third party is invited to make
its submissions in accordance with the WTO Editorial Guide for Panel Submissions.
first substantive meeting. Third parties may also be given the opportunity
to comment on the request if it is submitted before the first substantive
meeting (Article 10.3 of the DSU).131
The DSU envisages that the WTO Secretariat receives the parties’ and
third parties’ written submissions and transmits them to the other party or
parties to the dispute (Article 12.6 of the DSU). In practice, the panel
working procedures provide that these submissions are to be filed with the
DS Registry132 in the number requested for the panel. The parties and
third parties serve copies directly on each other, often through the “pigeon
holes” of their Geneva-based delegations in the WTO premises. In pro-
ceedings with multiple complaints on the same matter where a single panel
is established, the written submissions of each of the complainants must be
made available to the other complainants (Article 9.2 of the DSU).
The parties’ written submissions are quite extensive documents, often
with elaborate annexes.133 They aim to clarify the facts of the case and
contain legal arguments, which often rely substantially on prior reports
of panels and the Appellate Body. The complainant’s submission usually
attempts to establish that its claims of violation (or of non-violation)134
are substantiated. The respondent typically tries to refute the factual and
legal allegations and arguments put forward by the complainant and, if
appropriate, raise a defence.135 In contrast to the parties’ submissions,
third-party submissions are often much shorter and may only focus on
some of the claims or even aspects of given claims.
All these submissions are confidential and the WTO Secretariat and its
DS Registry ensure that they are kept that way within the Secretariat
(Article 18.2 of the DSU and paragraph 3 of the Working Procedures in
Appendix 3 to the DSU). Even so, the panel report, which is ultimately
circulated to all WTO members and made public, reflects and summar-
izes the factual and legal allegations and arguments of the parties before
131
See the section on the third-party session in panel proceedings on page 66.
132
In 2002, the WTO Secretariat established a DS Registry that receives and files the
submissions and maintains the official record for every dispute at the panel stage. See
page 29.
133
Panels usually request parties and third parties to submit executive summaries of their
submissions. See footnote 119 in Chapter 4 for further details about these summaries
and their use.
134
See the section on types of complaints on page 47.
135
For instance, in the event of a claim of violation of Article I of the GATT 1994, the
respondent may well refute such a claim and raise a defence under the general excep-
tions in Article XX of the GATT 1994.
the panel. The executive summaries of these arguments provided by the
parties are included in the panel report, currently in the form of annexes.
The parties and third parties are free to disclose their own submissions to
the public.136 The DSU also states that any WTO member may request a
non-confidential summary of a party’s submission (Article 18.2 of the
DSU and paragraph 3 of the Working Procedures in Appendix 3 to
the DSU).
Meetings with the Parties

General As in most judicial proceedings, the panel will typically meet
with the parties and third parties in the course of the proceedings. The
number of meetings will depend on the proceedings at issue. Each party
and third party has the right to determine the composition of its own
delegation when meeting with the panel.137 Each party and third party is
responsible for all members of its own delegation and must ensure that
each member of its delegation acts in accordance with the DSU and the
working procedures, particularly with regard to the confidentiality of the
proceedings.
The meetings of the panel with the parties and third parties take place
at the WTO in Geneva138 and are similar to an oral hearing before a
court, although the setting is more informal.
Contrary to the practice in many domestic judiciaries, oral hearings are
not usually held in public. The Working Procedures in Appendix 3 of the
DSU foresee that panels meet in closed session. However, in recent years,
as some members strive to achieve more transparency in the system,
panels have opened their hearings, fully or partially, to public observation
at the request of the parties. In these instances, panels have relied on the
flexibility offered by Article 12.1 of the DSU to depart from the Working
136
For example, some WTO members, such as the United States and the European Union,
post their submissions on their websites. However, they cannot post the submissions of
other parties.
137
In EC – Bananas III, the panel, after consulting the parties, did not allow the presence of
private lawyers at the first substantive meeting. The Appellate Body, however, allowed
their presence in the oral hearing and issued a preliminary ruling indicating that nothing
in the WTO Agreement, the DSU or its Working Procedures prevented a member from
admitting whomever it deemed fit to become part of its delegation to Appellate Body
proceedings. Appellate Body Report, EC – Bananas III, para. 10.
138
In case of a shortage of meeting rooms, these meetings may take place in premises
outside the WTO in Geneva.
Procedures in Appendix 3 after consulting the parties to the dispute.139 If
the panel hearing is not open to the public, only the parties to the dispute,
the panelists, the Secretariat staff supporting the panel, and the interpreters
are entitled to attend the meeting.
Organizational Meeting The first meeting that the panel usually holds
with the parties is an organizational meeting, during which the parties
are given an opportunity to comment on the panel’s proposed timetable
and working procedures before the panel finalizes them. This meeting
takes place at the very beginning of the process, as the DSU requires the
panel to fix the timetable for the panel process as soon as possible, and
whenever possible within one week after the composition of the panel
Substantive Meetings of the Panel with the Parties Appendix 3 of the

DSU foresees two oral hearings called substantive meetings (as opposed
to the organizational meeting) of the panel with the parties. After the
exchange of the first written submissions, the panel convenes a first
substantive meeting. The second substantive meeting takes place after
the second written submissions (or rebuttals) are exchanged by the
parties. In addition to the two oral hearings, the panel may also meet
with the parties to hear experts, for instance in SPS proceedings, or to
review the interim report. Panels have the discretion to call additional
meetings with the parties if they consider it appropriate, and indeed have
done so, for example, to address a request for a preliminary ruling.140
At the substantive meetings, which are recorded, the parties present their
views orally, normally on the basis of a prepared statement also distributed
in writing to the panel, the other parties and, where relevant, to
the interpreters. At the first substantive meeting, the floor is given first to
139
The first panel to open an oral hearing for public observation was in the US –
Continued Suspension and Canada – Continued Suspension disputes in September
2005. Panel Reports, US – Continued Suspension/Canada – Continued Suspension,
paras. 1.6–1.7, 6.7–6.11, and 7.1–7.51. Since then a number of other panels have
opened their hearings for public observation. See, for example, Panel Reports, EC –
Bananas III (Article 21.5 – US/Article 21.5 – Ecuador II), para. 1.11; US – Continued
Zeroing, para. 1.9; EC – IT Products, para. 1.11; EC and certain member States – Large
Civil Aircraft, para. 1.13; US – Large Civil Aircraft (2nd complaint), para. 1.15; US –
COOL, paras. 1.10 and 2.5 and Annex F; Canada – Renewable Energy/Feed-In Tariff,
para. 1.9; EC – Seal Products, para. 1.14; and US – COOL (Article 21.5 – Canada),
para. 1.10 and Annexes A-3 and A-4.
140
See the section on preliminary rulings on page 155.
the complainant to present its oral statement. At the second substantive
meeting, the respondent is given the opportunity to take the floor first.
After the oral statements, the parties are invited to pose questions,
through the panel, to each other and to respond to questions from the
panel. In addition, after the conclusion of the substantive meetings, the
parties are usually requested, within a deadline fixed by the panel, to
submit written answers to questions by the panel. Recently, panels have
also started to send some questions to the parties in advance of the
substantive meetings with a view to encouraging them to provide more
ample responses orally during the meetings.
In joint panel proceedings, different complainants have the right to be
present when any of the other complainants presents its views to the
panel (Article 9.2 of the DSU). This has also been the case for separate
panels with the same members, where working procedures and the
timetables have been harmonized. In such cases, the different complain-
ants have only been allowed to comment on those claims that they have
in common with each other.141
Third-party Session Article 10.2 of the DSU foresees the right of third
parties to be heard by the panel. In practice, panel working procedures
foresee that, after hearing the complainant(s) and the respondent, the
panel accords the third parties an opportunity to present their views
orally during a special session of the first substantive meeting (known as
the “third-party session”) set aside for that purpose. This means that,
under normal procedures, third parties are not present prior to this
special third-party session. In other words, they are not present when
the parties present their views orally, but they are present when all the
third parties present their cases. Unless the panel adopts a different
procedure, they all leave the room after all third parties have spoken. If
the panel has opened the oral hearing for public observation, third parties
may choose to speak either in a public session or in a confidential session.
During the third-party session, the panel hears the arguments of the
third parties in alphabetical order. As with the parties, these oral state-
ments are normally based on a prepared text, which is also provided to
the panel, to other third parties, to the parties to the dispute and, as
relevant, to the interpreters. Presenting their views orally to the panel is a
right of the third parties, not an obligation. Therefore, third parties are
141
For instance, this was the case for the separate panels in US – Shrimp (Thailand) and
US – Customs Bond Directive.
not obliged to present their views in the third-party session, and they
may simply observe the proceedings. Third parties are nonetheless bound
by confidentiality and, as any WTO member, obliged to cooperate with
the panel.142
After the third parties have made their statements, the parties may be
given the opportunity, through the panel, to ask them questions on any
matter raised in their submissions or statements.
Deliberation of the Panel

After the exchange of arguments is concluded, the next step is for the
panel to prepare its report. In doing so, panels will reach conclusions on
the outcome of the dispute and develop the reasoning in support of that
outcome. The panel is required to make an objective assessment of the
relevant factual questions and legal issues in order to assess the conform-
ity of the challenged measure with the covered agreement(s) invoked by
the complainant (Article 11 of the DSU). Simply put, the panel examines
the validity of the complainant(s)’ claim(s) that the respondent has acted
inconsistently with its WTO obligations or otherwise nullified or
impaired the complainant(s)’ benefits accruing under the agreements.143
Thus, the panel’s mandate is to apply existing WTO law, not to make
law. Article 19.2 of the DSU emphasizes that panels and the Appellate
Body must not add to or diminish the rights and obligations set forth in
the covered agreements.
The panel’s deliberations are confidential, and its report is drafted in
the absence of the parties (Articles 14.1 and 14.2 of the DSU). Article 18.1
of the DSU also prohibits any ex parte communications144 with the panel
on the matter under consideration, which means that the panel is not
entitled to communicate with individual parties except in the presence of
the other party or parties.
Panels make every effort to reach a consensual view on the matter
before them, and most reports therefore reflect the common view
reached by the panel as a result of its deliberations. Individual panelists
have the right to express a separate opinion in the panel report but they
142
See the section discussing third-party rights on page 66.
143
Or, in the rare case of a non-violation complaint, whether the challenged WTO-
consistent measure nullifies or impairs benefits accruing to the complainant under the
covered agreement invoked.
144
See footnote 58 in Chapter 2 for a definition of ex parte communication.
must do so anonymously (Article 14.3 of the DSU). In practice, there
have been very few instances where this has occurred.145
Function of Panels
The Panel’s Standard of Review
Objective Assessment of the Matter (Article 11 of the DSU) Article
11 of the DSU requires that a panel undertake an objective assessment of
the matter before it; this includes an objective assessment of the facts of the
case and the applicability of, and conformity with, the relevant covered
agreements. It thus “articulates with great succinctness but with sufficient
clarity the appropriate standard of review for panels in respect of both the
ascertainment of facts and the legal characterization of such facts under the
relevant agreements”.146 Article 11 of the DSU also requires panels to
make such other findings as will assist the DSB in making the recommen-
dations or in giving the rulings provided for in the covered agreements.
With respect to the objective assessment of the facts, as an initial trier
of facts, a panel must base its findings on a sufficient evidentiary basis on
the record,147 cannot apply a double standard of proof,148 must treat the
evidence in an even-handed manner,149 must consider evidence before it
in its totality,150 and should not disregard evidence that is relevant to
the case of one of the parties.151 Deliberate disregard, distortion or
145
Separate opinions were issued, for example, in Panel Reports, US – Continued Zeroing,
para. 9.1–9.10; and US – Tuna II (Mexico), paras. 7.146–7.190. Dissenting opinions were
issued, for instance, in Panel Reports, US – Carbon Steel, paras. 10.1–10.15; EC – Tariff
Preferences, paras. 9.1–9.21; US – Softwood Lumber V, paras. 9.1–9.24; US – Zeroing
(EC), paras. 9.1–9.62; China – Rare Earths, paras. 7.118–7.138; and US – Countervailing
and Anti-Dumping Measures (China), paras. 7.212–7.241.
146
Appellate Body Report, EC – Hormones, para. 116. While factual assessments are under
the exclusive jurisdiction of panels, the consistency or inconsistency of a given fact or set
of facts with the requirements of a given treaty provision is a “legal characterization
issue” or “legal question” that may be the subject of an appeal. Appellate Body Report,
EC – Hormones, para. 132.
147
Appellate Body Reports, US – Continued Zeroing, para. 338; and EC – Fasteners (China),
para. 441.
148
Appellate Body Reports, Korea – Dairy, para. 137; and EC – Fasteners (China), para. 441.
149
Appellate Body Reports, US – Upland Cotton (Article 21.5 – Brazil), para. 292; and EC –
Fasteners (China), para. 441.
150
Appellate Body Reports, US – Continued Zeroing, para. 331; and EC – Fasteners (China),
para. 441.
151
Appellate Body Reports, US/Canada – Continued Zeroing, paras. 553 and 615; and EC –
Fasteners (China), para. 441.
misrepresention of evidence imply not simply an error of judgement in
the appreciation of the evidence, but rather an “egregious error” that
would call into question the good faith of a panel.152 The panel must
therefore consider all the evidence presented to it, assess its credibility,
determine its weight, and ensure that its factual findings have a proper
basis in that evidence.153 Within these parameters, it is generally within
the discretion of the panel to decide which evidence it relies upon in
reaching its findings.154 A panel is not bound by the interpretation or
emphasis given to a particular piece of evidence by the parties. Instead, a
panel discharges its obligation where it provides “reasoned and adequate”
explanations and “coherent” reasoning.155
In the context of reviewing a determination by national authorities,
this “objective assessment” has been understood as mandating neither a
de novo review (i.e. the complete repetition of the fact-finding conducted
by national authorities) nor “total deference” to domestic authorities (i.e.
the simple acceptance of their determination).156 In the area of safeguard
measures,157 this has been considered to mean that a panel must assess
whether the national authorities have examined all the relevant facts and
provided a reasoned and adequate explanation of how the facts support
their determination.158 Panels must critically examine the competent
152
“A claim that a panel disregarded or distorted the evidence submitted to it is, in effect, a
claim that the panel, to a greater or lesser degree, denied the party submitting the
evidence fundamental fairness . . . or due process of law.” Appellate Body Report, EC –
Hormones, para. 133.
153
Appellate Body Reports, Brazil – Retreaded Tyres, para. 185; and EC and certain member
States – Large Civil Aircraft, para. 1317. For instance, in US – Countervailing Measures
(China), the Appellate Body found that the panel did not address, under Article 12.7 of
the SCM Agreement, each of the forty-two instances of the use of “adverse” facts
available by the US Department of Commerce, although China’s claims were brought
on an “as applied” basis. The Appellate Body also found that the panel did not “critically
examine” the statements in the determinations and memoranda issued by the US
Department of Commerce and that the panel’s statement was unclear with regard to
an exhibit setting out the facts available on the record. Accordingly, the Appellate Body
concluded that the panel acted inconsistently with Article 11 of the DSU in addressing
China’s claims under Article 12.7 of the SCM Agreement. Appellate Body Report, US –
Countervailing Measures (China), paras. 4.174–4.209.
154
155
156
Appellate Body Report, EC – Hormones, para. 117.
157
Adopted pursuant to Article XIX of the GATT 1994 and the Agreement on Safeguards.
158
Appellate Body Report, Argentina – Footwear (EC), para. 121. See also Appellate Body
Reports, US – Lamb, para. 103; and US – Softwood Lumber VI (Article 21.5 – Canada),
para. 93.
authorities’ explanation and determine whether such explanation fully
addresses the nature and complexities of the data, and responds to other
plausible interpretations of that data.159 However, panels must not con-
sider evidence that did not exist at the time when the WTO member
made its determination.160
The obligation under Article 11 of the DSU goes beyond a panel’s
appreciation of the evidence before it. Article 11 requires panels not only
to make an objective assessment of the facts of the case, but also an
objective assessment of the applicability and conformity of the measure
with the relevant covered agreements.161 In particular, the Appellate
Body has found that a panel must carry out an independent assessment
of the meaning of legal provisions, is not limited in its analysis to the
arguments made by the disputing parties,162 and may not make findings
on provisions that are not part of the matter before it.163 A panel’s
obligation to make an objective assessment of the matter under Article
11 is directly linked to due process concerns common to all judicial and
quasi-judicial instances.164
Parties often claim before the Appellate Body that a panel failed to
conduct an objective assessment of the matter before it. However, not
every error allegedly committed by a panel amounts to a violation of
159
Appellate Body Report, US – Lamb, paras. 103 and 106.
160
Appellate Body Report, US – Cotton Yarn, paras. 73 and 78.
161
Appellate Body Report, Chile – Price Band System, para. 172.
162
For instance, in EC and certain member States – Large Civil Aircraft, the Appellate Body
found that the panel had “committed legal error by failing to adjudicate properly the
United States’ subsidized product allegations and refusing to make its own independent
assessment of whether all Airbus [Large Civil Aircraft] compete in the same market or
not”. Appellate Body Report, EC and certain member States – Large Civil Aircraft,
para. 1128.
163
Appellate Body Report, Chile – Price Band System, para. 173. Another duty that arguably
could be included in this category is the duty of panels to follow prior jurisprudence. In
this respect, see the discussion on the relationship between Articles 11 and 3.2 of the
DSU, on the one hand, and the Appellate Body’s statement that a panel’s decision not to
follow “previously adopted Appellate Body reports addressing the same legal issues ...
undermines the development of a coherent and predictable body of jurisprudence
clarifying Members’ rights and obligations under the covered agreements as contem-
plated under the DSU”, on the other hand. Appellate Body Report, US – Stainless Steel
(Mexico), paras. 157–162.
164
According to the Appellate Body, “as part of their duties, under Article 11 of the DSU, to
‘make an objective assessment of the matter’ before them, panels must ensure that the
due process rights of parties to a dispute are respected”. Appellate Body Reports, US –
Continued Suspension/Canada – Continued Suspension, para. 482 (citing Appellate Body
Report, US – Gambling, para. 273).
Article 11 of the DSU. Only those errors that are so material that, “taken
together or singly”, undermine the objectivity of the panel’s assessment of
the matter before it would be inconsistent with Article 11. It is therefore
not sufficient for an appellant raising a claim under Article 11 simply to
disagree with a statement or to assert that it is not supported by evi-
dence.165 With respect to the objective assessment of the facts of the case,
the Appellate Body will not “interfere lightly” with a panel’s fact-finding
authority and cannot base a finding of inconsistency under Article
11 simply on the conclusion that it might have reached a different factual
finding from the one the panel reached. Rather, for such a claim under
Article 11 to succeed, “the Appellate Body must be satisfied that the panel
has exceeded its authority as the trier of facts”.166 While claims under
Article 11 concern mostly the assessment of facts, there have been more
limited instances to date in which the Appellate Body has found that a
panel had failed in its duty under Article 11 of the DSU with respect to
the assessment of the applicability and conformity of the measure with
the relevant covered agreements.167
In the past few years, parties’ claims on appeal that a panel has acted
inconsistently with its duties or obligations under Article 11 of the DSU
have substantially increased.168 The Appellate Body has cautioned that
165
Appellate Body Reports, US – Large Civil Aircraft (2nd complaint), para. 992; and
China – Rare Earths, paras. 5.178–5.179. A challenge under Article 11 of the DSU
cannot be made out simply by asserting that a panel did not agree with arguments or
evidence, in particular given that a simple error of judgment in the appreciation of
evidence does not, alone, suffice to establish panel error under this provision. Rather, an
allegation that a panel has failed to conduct the “objective assessment of the matter
before it” required by Article 11 is “a very serious allegation”. As such, an Article
11 claim must be clearly articulated and substantiated with specific arguments, including
an explanation of why the alleged error has a bearing on the objectivity of the panel’s
assessment. Appellate Body Reports, China – Rare Earths, paras. 5.227 and 5.228.
166
Appellate Body Report, EC and certain member States – Large Civil Aircraft, paras.
1317–1318.
167
For instance, in Colombia – Textiles, the Appellate Body disagreed with the panel’s
conclusion that it was not necessary to interpret Article II:1(a) and (b), and considered
that the panel was required to address the interpretative issue pertaining to the scope of
these provisions. The Appellate Body also considered that the panel’s conclusion that it
was not necessary to carry out such an interpretation did not follow logically from its
finding that the measure at issue applies or could apply to some illicit trade. The
Appellate Body concluded that the panel acted inconsistently with Article 11 of the
DSU to make an objective assessment of the applicability of the relevant covered
agreements. Appellate Body Report, Colombia – Textiles, paras. 5.1–5.28.
168
In some cases, parties present several claims under Article 11 of the DSU, together with
their substantive claims.
not all types of challenges may be brought as an Article 11 claim.169
Rather, a claim that a panel failed to comply with its duties under Article
11 of the DSU must “stand on its own”, and should not be made merely
as a “subsidiary argument” in support of a claim that the panel erred in
its application of a WTO provision.170
With respect to the Appellate Body’s standard of review when exam-
ining whether the panel has complied with Article 11 of the DSU, see
page 108.
In addition to making an “objective assessment of the matter before
it”, Article 11 of the DSU directs panels to “make such other findings as
will assist the DSB in making the recommendations or in giving the
rulings provided for in the covered agreements”.171 Issues such as the
panel’s use or misuse of judicial economy172 or the mischaracterization of
claims173 have been examined by the Appellate Body under this aspect of
the panel’s functions.
The Special Standard of Review in Article 17.6 of the Anti-Dumping

Agreement One of the covered agreements, the Anti-Dumping Agree-
ment, sets out a special standard of review for panels in Article 17.6
thereof.174 This provision is intended to provide a greater margin of
169
The Appellate Body explained that, “[i]n most cases . . . an issue will either be one of
application of the law to the facts or an issue of facts, and not both”. Appellate Body
Report, EC and certain member States – Large Civil Aircraft, para. 872. In cases where
claims are raised under both substantive provisions and Article 11, the Appellate Body
has stated that an appellant cannot succeed in an Article 11 claim by simply “recast[ing]”
its arguments before the panel “under the guise of an Article 11 claim” on appeal.
Appellate Body Reports, EC – Fasteners (China), para. 442; and US – Clove Cigarettes,
para. 229.
170
Appellate Body Report, EC – Fasteners (China), para. 442. See also Appellate Body
Reports, US – Steel Safeguards, para. 498; and Chile – Price Band System (Article 21.5 –
Argentina), para. 238.
171
Article 11 also provides in its last sentence that panels should consult regularly with the
parties to the dispute and give them adequate opportunity to develop a mutually
satisfactory solution. See page 170.
172
See page 89.
173
The Appellate Body has considered the mischaracterization of a claim by a panel as a
basis for concluding that a panel failed to “make such other findings as will assist the
DSB in making the recommendations or in giving the rulings provided for in the covered
agreements”, in breach of Article 11 of the DSU. See, for instance, Appellate Body
Reports, Philippines – Distilled Spirits, para. 192.
174
At the Ministerial Meeting in Marrakesh on 15 April 1994, the Ministers adopted the
Decision on Review of Article 17.6 of the Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994. The Appellate Body has interpreted
deference to the member’s anti-dumping determination than could be
derived from Article 11 of the DSU.
Article 17.6 imposes two separate but cumulative requirements:175 a
panel must assess (i) whether the investigating authorities have properly
established the facts and evaluated those facts in an unbiased and objective
manner (Article 17.6(i)176), and (ii) whether the determination rests upon
a permissible interpretation of the relevant provisions (Article 17.6(ii)177).
The function of the first requirement in Article 17.6(i) is to prevent a
panel from second-guessing a national authority’s determination when
the establishment of the facts is proper and the evaluation of those facts is
unbiased and objective.178 The panel is therefore not allowed to embark
upon a new and independent fact-finding exercise.179
The second sentence of Article 17.6(ii) deals with the situation where
there is more than one permissible interpretation of a provision of the
Anti-Dumping Agreement.180 The Appellate Body has defined the term
“permissible interpretation” as “one which is found to be appropriate
after application of the pertinent rules of the [VCLT]”.181
Judicial Economy
Panels are required by the DSU to address claims raised by a complain-
ant that meet the requirements of Article 6.2 of the DSU,182 and to
refrain from making findings outside their terms of reference.183 At the
this Decision as evidence that Article 17.6 of the Anti-Dumping Agreement only applies
in respect of that Agreement (and not to the SCM Agreement). Appellate Body Report,
EC – Hormones, fn. 79.
175
176
Article 17.6(i) reads: “In its assessment of the facts of the matter, the panel shall
determine whether the authorities’ establishment of the facts was proper and whether
their evaluation of those facts was unbiased and objective. If the establishment of the
facts was proper and the evaluation was unbiased and objective, even though the panel
might have reached a different conclusion, the evaluation shall not be overturned.”
177
Article 17.6(ii) reads: “The panel shall interpret the relevant provisions of the Agreement
in accordance with customary rules of interpretation of public international law. Where
the panel finds that a relevant provision of the Agreement admits of more than one
permissible interpretation, the panel shall find the authorities’ measure to be in con-
formity with the Agreement if it rests upon one of those permissible interpretations.”
178
Appellate Body Report, Thailand – H-Beams, para. 117.
179
180
Appellate Body Report, EC – Bed Linen, paras. 63–66.
181
Appellate Body Report, US – Hot Rolled Steel, para. 60 (emphasis original).
182
See the section on the panel request on page 57.
183
See the section on the panel’s terms of reference on page 64.
same time, it is not unusual for complainants to make multiple,
overlapping claims of violation in respect of the same measure. In certain
circumstances, a panel may decline to make findings on a particular
claim if it considers that such findings would not assist in the ultimate
resolution of the dispute.184 For instance, a panel need not make multiple
findings that the same measure is inconsistent with various provisions
when a single finding, or a certain number of findings, of inconsistency
would suffice to resolve the dispute.185 Where a panel refrains from
making a finding on a particular claim in the light of prior findings of
inconsistency with respect to the same measure, it exercises “judicial
economy”.186
Panels therefore have the discretion to decline to rule on certain
claims,187 but they must do so explicitly.188 This discretion must be
exercised consistently with the objective of the dispute settlement
system: to resolve the matter at issue and “to secure a positive solution
to a dispute” (Article 3.7 of the DSU). A panel must, therefore,
address all those claims on which a finding is necessary in order to
enable the DSB to make sufficiently precise recommendations and
rulings so as to allow for prompt compliance by a member “in order
to ensure effective resolution of disputes to the benefit of all
Members” (Article 21.1 of the DSU).189 The Appellate Body has
cautioned against false judicial economy, as it would provide only a
partial resolution of the matter at issue.190 Where a panel finds that
the complainant has failed to make a prima facie case in respect of one
claim, the panel may not exercise judicial economy with respect to
184
Appellate Body Report, US – Wool Shirts and Blouses, pp. 18–19.
185
Appellate Body Report, Canada – Wheat Exports and Grain Imports, para. 133.
186
The practice of judicial economy “allows a panel to refrain from making multiple
findings that the same measure is inconsistent with various provisions when a single,
or a certain number of findings of inconsistency, would suffice to resolve the dispute.
Although the doctrine of judicial economy allows a panel to refrain from addressing
claims beyond those necessary to resolve the dispute, it does not compel a panel to
exercise such restraint.” Appellate Body Report, Canada – Wheat Exports and Grain
Imports, para. 133.
187
Appellate Body Reports, US – Lead and Bismuth II, paras. 71 and 73; and Canada –
Autos, para. 116.
188
Appellate Body Report, Canada – Autos, para. 117.
189
Appellate Body Report, Australia – Salmon, para. 223. See also Appellate Body Reports,
Argentina – Import Measures, paras. 5.189–5.191; US – Upland Cotton, para. 732; US –
Steel Safeguards, para. 10.703; and Panel Reports, EC – Sardines, paras. 7.148–7.152;
EC – Commercial Vessels, para. 7.225.
190
Appellate Body Report, Australia – Salmon, para. 223.
another claim. Each and every claim cited in the panel request must
be addressed and rejected in such a case.191
Judicial economy refers to a panel’s treatment of claims, not argu-
ments.192 A panel has the discretion to address “only those arguments it
deems necessary to resolve a particular claim” and “the fact that a
particular argument relating to that claim is not specifically addressed
in the Findings section of a panel report” will not, in and of itself, lead to
the conclusion that a panel has failed to carry out its function of making
an objective assessment of the matter before it.193
Panels have on occasion made findings on an arguendo basis in the
event that their findings of violation are overturned by the Appellate
Body and have exercised judicial economy with respect to other relevant
claim(s).194 However, such findings may not always provide a solid
foundation upon which to rest legal conclusions.195
Order of Analysis
One of the issues that panels have had to address is the “order of
analysis”: the sequencing of the panel’s analysis to resolve multiple
claims of violation related to the same measure. The order of analysis
may well have an impact on a panel’s exercise of judicial economy196 in
respect of certain claims and, in this way, a respondent’s implementa-
tion options.
Panels have discretion in deciding the order of their analysis as they
see fit,197 provided that their analysis is consistent with the “structure and
logic” of the provisions at issue in each dispute.198 In so doing, panels
191
See Appellate Body Report, Japan – Agricultural Products II, para. 111.
192
A claim consists of an allegation that an identified provision of a particular covered
agreement has been violated, whereas an argument consists of the statements by a
complainant that attempt to demonstrate that the respondent’s measures are inconsist-
ent with the identified treaty provision. See Appellate Body Reports, China – HP-SSST
(Japan)/China – HP-SSST (European Union), para. 5.14; and Korea – Dairy, para. 139.
193
Appellate Body Report, EC – Fasteners (China), para. 511, citing Appellate Body Report,
EC – Poultry, para. 135.
194
See, for example, Panel Reports, Colombia – Ports of Entry, paras. 7.156–7.202; China –
Auto Parts, paras. 7.169–7.365; and US – COOL (Article 21.5 – Canada and Mexico),
para. 7.672.
195
Appellate Body Report, China – Publications and Audiovisual Products, para. 213.
196
Panel Report, India – Autos, para. 7.161.
197
Appellate Body Report, Canada – Wheat Exports and Grain Imports, paras. 126–129.
198
Appellate Body Reports, Canada – Autos, para. 151; and Canada – Wheat Exports and
Grain Imports, para. 109.
may find it useful to take account of the manner in which a claim is
presented to them by the complainant(s)199 and to consider if a particu-
lar order is compelled by principles of valid interpretative methodology,
which, if not followed, may constitute an error of law.200 In this respect,
where two or more provisions from different covered agreements appear
a priori to apply to the measure in question, the provision from the
agreement that “deals specifically, and in detail” with the measures at
issue should be analysed first.201
Burden of Proof, Standard of Proof and Rules of Evidence

The DSU does not set out any rules regarding burden and standard of
proof or evidence in panel proceedings. Panels and the Appellate Body
have thus relied on general principles of law and the practice of inter-
national and domestic tribunals to develop the evidentiary rules
explained in the next subsections.
Burden of Proof
The concept of the burden of proof 202 refers to a fundamental ques-
tion in any judicial or quasi-judicial system: which party must prove a
certain assertion, claim or defence to the satisfaction of the adjudi-
cator? The burden of proof rests upon the party, whether complaining
199
Appellate Body Report, Canada – Wheat Exports and Grain Imports, para. 126. In
fulfilling its duties under Article 11 of the DSU, a panel may depart from the sequential
order suggested by the complainant, in particular when this is required by the correct
interpretation or application of the legal provisions at issue. Appellate Body Report, US –
Zeroing (EC) (Article 21.5 – EC), para. 277.
200
Panel Report, India – Autos, para. 7.154. In Argentina – Financial Services, where
multiple measures were at issue, the panel opted for a claim-by-claim analysis in which
it established the legal standard to be applied in its interpretation of each provision and
then applied this legal standard to each measure. Panel Report, Argentina – Financial
Services, para. 7.67.
201
Appellate Body Report, EC – Bananas III, para. 204.
202
The concept of burden of proof, particularly in common law legal systems, encompasses
both the “burden of production” (a party’s duty to introduce enough evidence on an
issue to have the issue decided by the fact-finder) and the “burden of persuasion”
(a party’s duty to convince the fact-finder to view the facts in a way that favours that
party). See Black’s Law Dictionary, 8th edition, B. Garner (ed.) (West, 2004), p. 209.
However, this distinction has not been identified or considered relevant in WTO dispute
settlement. See J. Barceló III, “Burden of proof, prima facie case and presumption in
WTO dispute settlement”, Cornell International Law Journal, Vol. 42 (2009), pp. 27–29
and 35–36.
or defending, that asserts a fact or the affirmative of a particular claim
or defence.203 This means that the party claiming a violation of a
provision of a covered agreement (i.e. the complainant) must assert
and prove its claim. In turn, the party invoking in defence a provision
that is an exception to the allegedly violated obligation (i.e. the
respondent) bears the burden to prove that the conditions set out in
the exception are met.204 Such exceptions are, for example, Article XX
of the GATT 1994, Article XIV of the GATS205 or the Enabling
Clause.206
Standard of Proof
The concept of standard of proof refers to a different but related ques-
tion: what threshold of proof must be satisfied in order for the adjudi-
cator to rule that certain facts or claims have been proven? In other
203
Appellate Body Report, US – Wool Shirts and Blouses, p. 14. Indeed, this is relevant for
all covered agreements. For instance, in EC – Hormones, the Appellate Body reversed the
panel’s findings that the SPS Agreement allocates the “evidentiary burden” to the
member imposing an SPS measure. In doing this, the Appellate Body further reiterated
the approach taken in US – Wool Shirts and Blouses, and ruled that it was the
complainant’s task to present evidence and legal arguments sufficient to demonstrate a
violation of the SPS Agreement. Appellate Body Report, EC – Hormones, paras. 98–109.
In addition, specific rules on burden of proof have been developed through jurispru-
dence with regard to certain provisions of the covered agreements. See, for instance,
Appellate Body Reports, US – COOL, para. 379 (with respect to Article 2.2 of the TBT
Agreement); Japan – Apples, paras. 154–157 (with respect to the SPS Agreement); and
Decisions by the Arbitrator, US – COOL (Article 22.6 – United States), paras. 4.7–4.14
(with respect to an arbitration under Article 22.6 of the DSU).
204
Appellate Body Report, US – Wool Shirts and Blouses, p. 14.
205
A respondent invoking a defence under Article XX of the GATT 1994 or Article XIV of
the GATS has to comply with a two-tier test: first, it has the burden of proving that the
allegedly inconsistent measure comes under one or another of the particular exceptions
listed under the relevant provisions; and second, it must prove that the measure is also in
compliance with the chapeau of the relevant provision. See, for instance, Appellate Body
Reports, US – Gasoline, para. 20; Brazil – Retreaded Tyres, para. 139; US – Gambling,
para. 292; and EC – Seal Products, para. 5.169 (with respect to the identification of a
reasonably available alternative).
206
In EC – Tariff Preferences, the Appellate Body upheld the panel’s findings that the
Enabling Clause (the Decision on Differential and More Favourable Treatment, Reci-
procity, and Fuller Participation of Developing Countries) constitutes an exception to
Article I:1 of the GATT 1994; and, therefore, the burden of proof was on the respondent
(the European Communities, now the European Union) to demonstrate that its measure
was consistent with provisions of the Enabling Clause. Notably, according to the
Appellate Body, the complainant (India) was required to raise the Enabling Clause in
making its claim of inconsistency with Article I:1. See Appellate Body Report, EC – Tariff
Preferences, paras. 104, 105, 118 and 123.
words, how much and what type of evidence and argument does a party
bearing the burden of proof need for the adjudicator to rule that certain
facts or claims have been proven?207
The party bearing the burden of proof must put forward evidence
sufficient to make a prima facie case (a presumption) that what is claimed
is true.208 A prima facie case is “one which, in the absence of effective
refutation by the defending party, requires a panel, as a matter of law, to
rule in favour of the complainant presenting the prima facie case”.209
When that prima facie case is made, then the other party will fail unless it
submits sufficient evidence to disprove the claim, thus rebutting the
presumption.210 Precisely how much and what kind of evidence will be
required to establish a presumption that what is claimed is true (i.e. what
is required to establish a prima facie case) varies from measure to
measure, provision to provision, and case to case.211
Rules of Evidence
Each party must submit evidence in support of its factual assertions.
However, the nature of the evidence required to prove an assertion may
only be determined on a case-by-case basis. For example, the nature of
the evidence that will suffice to prove an assertion relating to an obvious
207
The standard of proof refers to the “degree or level of proof demanded in a specific case,
such as ‘beyond a reasonable doubt’ or ‘by a preponderance of the evidence’.” Black’s
Law Dictionary, 8th edition, B. Garner (ed.) (West, 2004), p. 1441. This concept should
not be confused with the burden of proof, or the burden of persuasion, as discussed in
footnote 202 in Chapter 4. Specifically, the “burden of proof” refers to the issue of which
party must provide evidence and arguments for an adjudicator to decide in its favour;
whereas the “standard of proof” refers to the issue of how much evidence and argumen-
tation is required in order to satisfy an adjudicator that the party has met its burden. G.
Cook, “Defining the standard of proof in WTO dispute settlement proceedings: Jurists’
prudence and jurisprudence”, Journal of International Trade and Arbitration Law, Vol.
I:2 (2012), pp. 52–53.
208
Appellate Body Report, Japan – Apples, para. 157.
209
Appellate Body Report, EC – Hormones, para. 104. See also Appellate Body Reports,
Japan – Agricultural Products II, paras. 98 and 136; and Japan – Apples, para. 159.
210
Panels are not required to make an explicit ruling on whether the complainant has
established a prima facie case of violation before a panel may proceed to examine the
respondent’s defence and evidence. Appellate Body Reports, Thailand – H-Beams,
para. 134; Korea – Dairy, para. 145; and Canada – Aircraft, para. 185. The panel’s task
is to weigh all evidence on record and decide whether the complainant, as the party
bearing the original burden of proof, has convinced the panel of the validity of its claims.
Panel Report, US – Section 301 Trade Act, para. 7.14.
211
and/or undisputed fact may be different from the kind of evidence
required to prove other kinds of assertions.
Panel proceedings usually involve almost exclusively documentary
evidence. The evidence generally includes the text of laws, regulations
and other legal instruments relating to the measures at issue.212 There is
no requirement for live witness testimony; nonetheless, parties may and
regularly do submit individual statements and affidavits as evidence,213
and it is possible, though rare, to have a form of live testimony at panel
meetings through the statements of individuals included in the parties’
delegations attending the meeting.214 Panels have also considered, inter
alia, public statements from government officials,215 newspaper and
212
In many cases, the complainant may simply need to provide the text of the legal
instrument containing the challenged measure as evidence to prove its existence. In
some other cases, however, identifying the measure at issue may be more complex.
Regardless of how a particular measure is characterized, a complainant must always
establish that the challenged measure is attributable to the respondent, and indicate the
precise content of the challenged measure (to the extent that such content is the object of
the claims raised). A complainant may also be required to demonstrate other elements,
depending on how the measure is characterized (Appellate Body Report, Argentina –
Import Measures, paras. 5.104 and 5.110). For instance, a complainant seeking to prove
the existence of an unwritten measure will invariably be required to prove the attribution
of that measure to a member and its precise content. When the unwritten measure is
challenged as a “rule or norm of general and prospective application”, the complainant
“must clearly establish, through arguments and supporting evidence, at least that the
alleged ‘rule or norm’ is attributable to the responding Member; its precise content; and
indeed, that it does have general and prospective application”. This evidence may
include “proof of the systematic application of the challenged ‘rule or norm’” (Appellate
Body Report, US – Zeroing (EC), para. 196. See also Appellate Body Report, Argentina –
Import Measures, para. 5.104). A complainant challenging a single measure composed of
several different instruments will normally need to provide evidence of how the different
components operate together as part of a single measure and how a single measure exists
as distinct from its components. See, for example, Appellate Body Reports, US – Tuna II
(Mexico), paras. 2, 172 and fn. 357; and EC – Seal Products, para. 1.3. A complainant that
is challenging a measure characterized as “ongoing conduct” would need to provide
evidence of its repeated application, and of the likelihood that such conduct will
continue. Appellate Body Report, Argentina – Import Measures (US), para. 5.110.
213
See, for instance, Panel Reports, US – Softwood Lumber V, para. 7.117, US – Large Civil
Aircraft (2nd complaint), fn. 3670; and Argentina – Import Measures, para. 6.91.
214
See, for instance, Colombia – Ports of Entry (the chairperson of the association of users of
the Colon Free Zone) or in EC and certain member States – Large Civil Aircraft (an
Airbus employee).
215
See, for instance, Panel Reports, Australia – Automotive Leather, fn. 210; Chile –
Alcoholic Beverages, para. 7.119; EC – Approval and Marketing of Biotech Products,
para. 7.522; EC and certain member States – Large Civil Aircraft, para. 7.1919; and
Argentina – Import Measures, para. 6.78.
magazine articles,216 economic and econometric studies,217 statistical
information218 and video recordings.219
Unlike some domestic common law systems, there is no “discovery”
procedure in which parties are legally required to disclose requested
information to one another. A party must produce the information
requested by the panel;220 otherwise, the panel may draw “adverse
inferences” in case of refusal.
With respect to the admissibility of evidence, in principle, all evidence
is admissible, and it is for the panel to determine its weight.221 There are
some exceptions to this general principle. For example, a panel may
refuse to consider new evidence submitted at a late stage of the proceed-
ings;222 statements in WTO trade policy review reports cannot be used as
a basis for findings in WTO dispute settlement proceedings;223 and a
panel reviewing an investigating authority’s anti-dumping, countervail-
ing and/or safeguard determination cannot take into account evidence
that was not before the investigating authority.224
With respect to the submission of evidence, the panel working pro-
cedures usually provide that evidence must be submitted to the panel, in
the form of exhibits, by the first substantive meeting, except with respect
to evidence necessary for purposes of rebuttal; and in responses to
questions, or comments on answers, provided by the other party.225
Exceptions to this procedure may be granted by the panel upon a
showing of good cause. Where such an exception has been granted, the
panel typically accords the other party (or parties) a period of time for
216
See, for instance, Panel Reports, Indonesia – Autos, para. 14.234; China – Intellectual
Property Rights, paras. 7.628–7.629 and Argentina – Import Measures, paras. 6.69–6.72.
217
For instance, in US – COOL.
218
See, for instance, Panel Report, Argentina – Import Measures, para. 6.114.
219
For instance, in EC – Seal Products (video recordings, submitted by the parties, regarding
seal hunting).
220
Or the “facilitator” under Annex V of the SCM Agreement.
221
See, for instance, Panel Report, EC – Bed Linen, para. 6.34.
222
See Appellate Body Report, Thailand – Cigarettes (Philippines), paras. 141–161.
223
See, for instance, Panel Report, Canada – Aircraft, paras. 8.14, 9.274–9.275.
224
See, for instance, Panel Report, EC – Salmon (Norway), paras. 7.835–7.860.
225
The working procedures also generally require that parties and third parties sequentially
number their exhibits throughout the course of the dispute, identifying them with the
first two or three letters of the country’s name, or their abbreviations, followed by the
sequential number. For instance, as shown in the working procedures adopted by
the panel in India – Agricultural Products in Annex III.A (see page 250), the exhibits
of India were to be numbered as Exhibit IND-1, Exhibit IND-2, Exhibit IND-3, etc.
commenting, as appropriate, on any new factual evidence submitted after
the first substantive meeting.226
Panels may also adopt special working procedures to protect confidential
information such as so-called “business confidential information” (BCI),227
“strictly confidential information” (SCI)228 and other types of confidential
information submitted by the parties.229 Depending on the sensitivity of
the information at issue, these procedures may be more or less complex,
but should go no further than necessary to guard against a determined
risk of harm (actual or potential) that could result from disclosure, and
must be consistent with the relevant provisions of the DSU and other
covered agreements.230 BCI procedures generally, among other things: (i)
define what is covered as BCI;231 (ii) provide for the designation of
approved persons who can access BCI; (iii) require storage in a secure
location; (iv) provide for redaction of BCI from the public version of the
panel report; and (v) require return/destruction of BCI upon completion
of the case.232
226
Appellate Body Report, Thailand – Cigarettes (Philippines), para. 151.
227
See, for instance, the additional procedures for the protection of BCI adopted by the
panel in Ukraine – Passenger Cars in Annex III.C (see page 260).
228
See, for example, the working procedures for SCI adopted by the panel in India –
Agricultural Products in Annex III.B (see page 261).
229
In the Large Civil Aircraft disputes, the additional procedures for the protection of
confidential information adopted by the panels covered both BCI and an additional
category of information referred to as “highly sensitive business information”, which
required a higher level of protection than normal BCI. See Panel Reports, US – Large
Civil Aircraft (2nd complaint), para. 1.11 and Annexes D and E; and EC and certain
member States – Large Civil Aircraft, para. 1.10 and Annexes E and F.
230
See Appellate Body Report, China – HP-SSST (Japan)/China – HP-SSST (European
Union), para. 5.311.
231
This provides the basis for the panel to resolve disagreements over what is properly BCI.
232
See, for instance, Australia – Salmon (Article 21.5 – Canada); Brazil – Aircraft; Canada –
Aircraft; Thailand – H-Beams; Australia – Automotive Leather II; Australia – Automotive
Leather II (Article 21.5 – US); US – Wheat Gluten; Egypt – Steel Rebar; Korea – Commercial
Vessels; Canada – Wheat Exports and Grain Imports; EC – Approval and Marketing of
Biotech Products; EC and certain member States – Large Civil Aircraft (AB); EC and certain
member States – Large Civil Aircraft; Mexico – Steel Pipes and Tubes; EC – Salmon
(Norway); US – Large Civil Aircraft (2nd complaint); Thailand – Cigarettes (Philippines);
US – Anti-Dumping and Countervailing Duties (China); US – COOL; US – COOL (Article
21.5 – Canada and Mexico); Philippines – Distilled Spirits; US – Shrimp (Viet Nam);
China – GOES; China – Broiler Products; US – Shrimp II (Viet Nam); India – Agricultural
Products; US – Carbon Steel (India); China – Autos (US); China – HP-SSST (Japan)/
China – HP-SSST (European Union); Ukraine – Passenger Cars; US – COOL (Article 22.6 –
Canada and Mexico); Russia – Pigs (EU); Russia – Tariff Treatment; and US – Washing
Machines.
The Panel’s Right to Seek Information
Article 13 of the DSU authorizes panels to seek information and advice
from experts and other relevant sources to help them to understand and
evaluate the evidence submitted and the arguments made by the parties.
This right is broad and comprehensive and its exercise is left to the
discretion of the panel.233 However, a panel must not make the case for
a complainant and therefore, notwithstanding its fact-finding authority, a
panel cannot use this authority to relieve the complainant of making a
prima facie case of inconsistency.234
In considering whether to exercise its authority under Article 13 of the
DSU, in particular when a party has made an explicit request that it do
so, a panel should have regard to considerations such as: (i) what infor-
mation is needed to complete the record; (ii) who is in possession of such
information; (iii) what other reasonable means might be used to procure
that information; (iv) why the information has not been produced; (v)
whether it is fair to request the party in possession of the information to
submit it; and (vi) whether the information or evidence in question is
likely to be necessary to ensure due process and a proper adjudication of
the relevant claim(s).235
When information is in the exclusive possession of the opposing party
or a third party, a party cannot reasonably be expected to meet its burden
to adduce evidence in support of its claims or defences.236 In such
circumstances, a panel may not be able to make an objective assessment
of the matter without exercising its authority under Article 13 of the DSU
to seek out that information (in particular, if the party that needs this
evidence can show that it has diligently exhausted all means to acquire it,
to the extent such means exist).237
Article 13.1, third sentence, of the DSU provides that a member
“should respond promptly and fully” to any request for information.
Accordingly, all WTO members, including the parties to the dispute, are
under a legal obligation to surrender the requested information.238 If a
member refuses to submit the requested information, the panel may
233
Appellate Body Report, US – Shrimp, paras. 104 and 106. See, for instance, Panel Report,
EC – Fasteners (Article 21.5 – China), para. 7.195.
234
Appellate Body Report, Japan – Agricultural Products II, para. 129.
235
Appellate Body Report, US – Large Civil Aircraft (2nd complaint), para. 1140.
236
237
238
Appellate Body Report, Canada – Aircraft, paras. 188–189.
draw adverse inferences from the failure of the non-cooperating member
to produce the requested information.239
An important aspect of Article 13 is the panel’s right to resort to
experts.240 This provision has also been found to provide the legal basis
for panels to accept and consider unsolicited amicus curiae
submissions.241
The Panel Report

Once it has completed its assessment of the matter before it, the panel
will issue its report to the parties.242 If the parties have reached a
settlement during the course of the panel proceedings, the panel report
will be confined to a brief description of the case and to reporting that a
solution has been reached.243 Where the parties have not been able to
reach such a solution, which is the most frequent situation at this stage of
the proceedings, Article 12.7 of the DSU provides that the panel report
sets out the findings of fact, the applicability of relevant provisions and
the basic rationale behind any findings and recommendations that the
panel makes.
The DSU also directs the panel to issue its report to the parties in
consecutive parts: a descriptive part, an interim report and the all-
inclusive final report.
Descriptive Part of the Panel Report

The panel first issues a section of its report, the “descriptive part”, to the
parties for written comments (Article 15.1 of the DSU). The descriptive
part comprises an introduction, the factual aspects of the dispute as the
panel understands them (i.e. the draft factual findings), the parties’
requests for findings by the panel, and the summary of the factual and
legal arguments of the parties and third parties. In this respect, the
standard working procedures of the panel require parties and third
parties to provide one or more executive summaries of their arguments,
which will be included, currently in an annex, in the panel report.
239
Appellate Body Report, Canada – Aircraft, paras. 198–203.
240
See the section dealing with experts on page 35.
241
The right of panels to accept amicus curiae briefs is discussed on page 163.
242
See the section concerning the circumstances of the issuance of the report to members
on page 103.
243
This was the case for the panel reports in Japan – Quotas on Laver; US – DRAMS (Article
21.5 – Korea); EC – Butter; EC – Scallops; and Korea – Bovine Meat (Canada).
Parties are invited to comment on the draft descriptive part within the
deadline fixed in the adopted timetable. This gives the parties an oppor-
tunity to ensure that all their key arguments are reflected in the descrip-
tive part and to rectify errors and perceived imprecisions. It also provides
an opportunity for the panel to confirm its understanding of the facts of
the case.
Interim Review and Interim Report

Once the panel has received the parties’ comments on the descriptive
part, it will next issue its interim report to the parties. This report is called
“interim” because it is not yet the final panel report. The interim report,
which is issued as a confidential document, includes the descriptive part,
possibly amended to reflect comments submitted by the parties; the
substantive findings of the panel, i.e. its findings on the applicability of
relevant provisions and the basic rationale behind any findings and
recommendations that the panel makes; the conclusions and recommen-
dations; and, as the case may be, suggestions for implementation. The
interim report is thus a complete report, although it is not yet final.
As with the descriptive part, parties are entitled to make comments on the
interim report and may also request a meeting of the panel to further argue
specific points raised with respect to the interim report. This is the so-called
interim review stage (Article 15 of the DSU). Panel working procedures
usually provide that, in the event that no interim review meeting is
requested, each party is allowed to submit written comments on the other
party’s written request for review within the deadline fixed by the panel.
The interim review is designed to provide parties with an opportunity
to request the panel “to review precise aspects of the interim report”
(Article 15.2 of the DSU).244 It is therefore not intended as an opportun-
ity to re-open arguments already put before a panel – or, indeed, to make
new arguments.245
244
The interim review stage “is not an appropriate moment to introduce new [and
unanswered] evidence”. Appellate Body Reports, EC – Sardines, para. 301; and EC –
Selected Customs Matters, paras. 248, 250, and 259. See also Panel Reports, Japan –
Alcoholic Beverages II, para. 5.2; Australia – Salmon, para. 7.3; Japan – Apples (Article
21.5 – US), para. 7.21; India – Quantitative Restrictions, para. 4.2; Canada – Continued
Suspension, paras. 6.16–6.17; US – Continued Suspension, paras. 6.17–6.18; and India –
Agricultural Products, para. 6.5.
245
Panel Reports, Japan – DRAMs (Korea), para. 6.2; US – Poultry (China), para. 6.32; EC
and certain member States – Large Civil Aircraft, paras. 6.301–6.314; US – Zeroing (EC)
(Article 21.5 – EC), para. 7.26; and India – Agricultural Products, paras. 6.3–6.8.
Irrespective of whether or not the panel modifies its findings after
the interim review, its final report must contain a reference to the
arguments raised by the parties during the interim review stage (Art-
icle 15.3 of the DSU). This typically becomes a separate section, in
which the panel discusses the merits of the parties’ comments during
the interim review stage. If no comments are received on the interim
report, it will become the final report of the panel (Article 15.2 of
the DSU).
Where the panel issues a preliminary ruling in the course of the
proceedings, it may circulate this ruling to the members before issuing
its interim report to the parties.246 These preliminary rulings that typic-
ally deal with procedural or jurisdictional matters should not be mistaken
for the interim report.
Findings and Recommendations

The DSU requires panels to set out the basic rationale behind any
findings and recommendations that they make (Article 12.7 of the
DSU). Panel findings are usually very detailed and specific. They typically
include findings of facts relevant to the resolution of the dispute, inter-
pretation of legal provisions at issue, the application of the law to the
facts and, finally, findings on whether the respondent has acted inconsist-
ently with the covered agreements invoked by the complainant.
Where the panel concludes that the challenged measure is inconsistent
with a covered agreement, the panel report also contains a recommenda-
tion that the respondent bring the challenged measure into conformity
with that agreement (Article 19.1 of the DSU, first sentence), unless the
measure has since been removed. In the context of a non-violation
complaint (Article 26.1(b) of the DSU), the “ultimate goal is not the
withdrawal of the measure concerned, but rather achieving a mutually
satisfactory adjustment, usually by means of compensation”.247
The panel’s recommendations are often formulated as recommenda-
tions to the DSB that it request the member concerned (i.e. the respond-
ent) to bring its measure into conformity. The DSU also confers on
panels and the Appellate Body the discretion to suggest ways in which
their recommendations and rulings could be implemented (Article 19.1
246
See footnote 19 of Chapter 6 for a list of communications in which preliminary rulings
were circulated to the members.
247
Appellate Body Report, India – Patents (US), para. 41 and fn. 29.
of the DSU, second sentence).248 However, suggestions on how the
respondent could comply with its WTO obligations are not binding on
the respondent.249 Indeed, the respondent enjoys the freedom to choose
any of the various options that may exist to bring about compliance. All
the respondent is obliged to do is to make its measure(s) fully compatible
with WTO law. In practice, panels rarely make implementation
suggestions.250
If a non-violation complaint succeeds, there will be no obligation for the
respondent to withdraw the measure found to nullify or impair benefits
accruing under, or to impede an objective of, the relevant covered agree-
ment. In such cases, the panel recommends that the respondent make an
adjustment that is mutually satisfactory to the parties (Article 26.1(b) of
the DSU). A possible form of adjustment would be for the respondent to
compensate the complainant with alternative trade opportunities in order
to make up for the nullified or impaired benefit.251
248
Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), para. 466. The arbitrators
in EC – Bananas III (Ecuador) (Article 22.6 – EC) indicated that “[w]hile Article 19 does
not explicitly mention arbitration proceedings under Article 22, in our view, there is
nothing in the DSU that would preclude Arbitrators, acting pursuant to Article 22.6,
from making suggestions on how to implement their decision. Given that this case is the
first one involving subparagraphs (b)–(e) of Article 22.3 and the first one concerning the
suspension of TRIPS obligations, we believe that it is particularly appropriate to set out
our views on the suspension of TRIPS obligations.” Decision of the Arbitrators, EC –
Bananas III (Ecuador) (Article 22.6 – EC), para. 139.
249
Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II)/EC – Bananas III
(Article 21.5 – US), para. 321; and US – Oil Country Tubular Goods Sunset Reviews
(Article 21.5 – Argentina), para. 184. Furthermore, the fact that the party concerned or
complained against has carefully followed the panel’s suggestion does not create a
presumption that the new measure is in compliance with WTO rules. Appellate Body
Report, EC – Bananas III (Article 21.5 – Ecuador II)/EC – Bananas III (Article 21.5 – US),
para. 325.
250
In some disputes dealing with anti-dumping measures or safeguard measures such as
Guatemala – Cement I and II, Argentina – Poultry Anti-Dumping Duties, Mexico – Steel
Pipes and Tubes, and Ukraine – Passenger Cars, panels have suggested that the measures
be revoked. See Panel Reports, Guatemala – Cement I, paras. 8.2–8.6; Guatemala –
Cement II, paras. 9.4–9.7; Argentina – Poultry Anti-Dumping Duties, paras. 8.3–8.7;
Mexico – Steel Pipes and Tubes, paras. 8.7–8.12; and Ukraine – Passenger Cars, paras.
8.7–8.8. Panels have also made recommendations for implementation in the context of
the Agreement on Agriculture (Panel Report, EC – Sugar Subsidies, paras. 8.6–8.8), the
TRIPS Agreement and the GATT 1994 (Panel Report, EC – Trademarks and Geograph-
ical Indications, para. 8.5), and the Agreement on Textiles and Clothing (Panel Reports,
US – Underwear, para. 8.3; US – Cotton Yarn, paras. 8.4–8.5).
251
In the WTO disputes to date in which a non-violation nullification and impairment
claim was substantively considered by a panel, no such claim has been successful. See, for
A special rule also exists in respect of prohibited subsidies under the
SCM Agreement: if the panel concludes that the challenged subsidy is
prohibited, it must “recommend that the subsidizing Member withdraw
the subsidy without delay” and must specify the time period for this
withdrawal (Article 4.7 of the SCM Agreement).
Issuance and Circulation of the Final Report
Once the interim review stage has concluded, the panel will finalize its
report for issuance to the parties only. This “final” report will include the
descriptive part; a section summarizing the parties’ comments on the
interim report and the panel’s response; the findings as amended, if
necessary, further to those comments; and the corresponding conclusions
and recommendations. The final report is issued only to the parties.
Typically, the descriptive part, interim and final reports are issued to
the parties in the working language of the panel, which tends to be
English.252 Nonetheless, in a number of proceedings with Spanish-
speaking parties, panels have issued the various parts of the report
simultaneously or consecutively in English and Spanish, at the request
of one or more of the parties.253
The report will only be circulated to the members once it is available in
the three official languages of the WTO,254 i.e. English, French and
Spanish. At that point, it also becomes a public document, issued under
the WT/DS series (the symbol ends with an “R”, thus WT/DS###/R).255
Panel Reports in Joint Proceedings
A single panel may be established to examine multiple complaints
whenever feasible (Article 9.1 of the DSU). Where a single panel is
established, Article 9.2 provides that if one of the parties to the dispute
so requests, the panel shall submit separate reports on the dispute
concerned. However, the panel may deny the party’s (or parties’) request
if it is not made in a timely manner.256
example, Panel Reports, Japan – Film, paras. 10.82–10.89 and 10.90–10.349; and EC –
Asbestos, paras. 8.285–8.303.
252
See footnote 120 in Chapter 4.
253
For instance, in Colombia – Ports of Entry, the panel issued to the parties the descriptive
part, interim and final reports both in English and in Spanish simultaneously. Panel
Report, Colombia – Ports of Entry, para. 1.8.
254
The three official languages of the WTO are English, French and Spanish. See the
concluding paragraph of the WTO Agreement.
255
See page 49 concerning the publication of official documents within the WT/DS series.
256
Appellate Body Report, US – Offset Act (Byrd Amendment), paras. 311–316.
To date, the majority of panels established in joint proceedings have
issued a single report to cover all the disputes. However, there have been
a few instances where panels issued separate reports for each complain-
ant,257 a mix of joint and separate reports,258 or one document that
included a separate report per complainant.259
Appellate Review
One of the most noteworthy features of the DSU is the possibility for
members to appeal a panel report before the Appellate Body. It is thus an
option available only to the parties (not the third parties) to a dispute and
has been used in around 66 per cent of the panel reports circulated as of
1 December 2016.
Applicable Rules and Working Procedures for Appellate Review

Except for Article 16.4 of the DSU, which refers to the notification of a
party’s decision to file an appeal, Article 17 is the main provision dealing
with the structure, function and procedures of the Appellate Body.
However, several general rules in the DSU are applicable both to the
panel and the appellate review processes, for instance, Articles 1, 3,
18 and 19 of the DSU.
In addition, the Appellate Body is entitled to adopt its own Working
Procedures for Appellate Review260 pursuant to Article 17.9 of the DSU.
These Working Procedures, as required by Article 17.9 of the DSU, are
drawn up by the Appellate Body in consultation with the chairperson of
the DSB and the Director-General, and communicated to WTO
members for their information. The Working Procedures for Appellate
257
For instance, panels in joint proceedings issued separate reports for each complainant in
EC – Trademarks and Geographical Indications, EC – Export Subsidies on Sugar and
EC – Chicken Cuts, US – Customs Bond Directive and US – Shrimp (Thailand).
258
For example, in EC – Bananas III, the panel issued four separate panel reports: a joint
one to Guatemala and Honduras, and three separate ones for Ecuador, Mexico and the
US, respectively.
259
For instance, in EC – Approval and Marketing of Biotech Products, US – Steel Safeguards,
EC – IT Products, Philippines – Taxes on Distilled Spirits, Canada – Renewable Energy/
Canada – Feed-in-Tariff, Argentina – Import Measures, US – COOL (Article 21.5 –
Mexico), China – HP-SSST (Japan)/China – HP-SSST (European Union).
260
These procedures should not be confused with the sample panel Working Procedures in
Appendix 3 to the DSU.
Review were adopted by the Appellate Body for the first time in 1996,
and have since been amended several times.261
The Working Procedures for Appellate Review contain the detailed
procedural rules governing appeals. These range from the duties and
responsibilities of Appellate Body members to the specific deadlines by
which submissions must be filed in each appeal. Rule 16(1) of the
Working Procedures, the so-called “gap-filling” rule, bestows upon an
Appellate Body division that is hearing an appeal, the authority to adopt
an “appropriate procedure” in the “interests of fairness and orderly
procedure” where a procedural question arises that is not covered by
the Working Procedures. However, the procedure so adopted pursuant to
Rule 16(1) for the purposes of the particular appeal must not be incon-
sistent with the provisions of the DSU, the other covered agreements, and
the Working Procedures themselves. Rule 16(1) of the Working Proced-
ures has been used by the Appellate Body, for example, in EC and certain
member States – Large Civil Aircraft262 for the purpose of adopting
special procedures for the protection of BCI; in EC – Asbestos263 for
the purpose of adopting a special procedure to deal with potential amicus
curiae briefs; and in China – HP-SSST (Japan)/China – HP-SSST (Euro-
pean Union) for the purpose of consolidating two appeals.264
Scope of Appellate Review

Pursuant to Article 17.6 of the DSU, the Appellate Body is vested with
the authority to review “issues of law covered in the panel report and
legal interpretations developed by the panel”. Article 17.13 further pro-
vides that the Appellate Body may “uphold, modify or reverse the legal
findings and conclusions of the panel”. The Appellate Body may also
complete the panel’s analysis under certain circumstances.265 It follows
261
The latest version of the Working Procedures for Appellate Review can be found in
document WT/AB/WP/6, see Annex V (page 280). It entered into force on 15 Septem-
ber 2010.
262
Appellate Body Report, EC and certain member States – Large Civil Aircraft, paras.
17–19 and Annex III.
263
Appellate Body Report, EC – Asbestos, para. 52. See also document WT/DS135/9.
264
Appellate Body Report, China – HP-SSST (Japan)/China – HP-SSST (European Union),
para. 1.24. See also Appellate Body Reports, US – Countervailing and Anti-Dumping
Measures (China), para. 1.14 and Annex 3; US – COOL (Article 21.5 – Canada/Article
21.5 – Mexico), paras. 1.13–1.17 and Annex 4 at paras. 2.1–2.12.
265
See the section on the function of the Appellate Body and its ability to complete the
panel’s legal analysis under certain circumstances on page 119.
from Articles 17.6 and 17.13 of the DSU that appeals are limited to legal
questions. In an appeal, an Appellate Body division cannot address the
facts upon which a panel report is based, for example, by requesting the
examination of new factual evidence or by re-examining existing evi-
dence. Evaluating the evidence and establishing the facts is, in principle,
the task of panels as the “triers of fact” in the dispute settlement system.
The Appellate Body itself has stated that it has no authority to consider
new facts on appeal.266 New arguments based on the facts on the record
are not per se excluded from the scope of appellate review, provided that
they relate to an issue of law covered in the panel report or to legal
interpretations developed by the panel.267
The distinction between legal and factual questions is important in
defining the scope of appellate review. In abstract terms, it seems easy to
distinguish between law and facts. For example, whether a national
authority has charged a 30 per cent tariff rather than a 20 per cent tariff
on the importation of a certain shipment of goods, and whether vodka
and shochu are being produced through the distillation of fermented,
starch-containing products, are clearly factual questions. More generally
speaking, a fact is the occurrence of a certain event in time and space.268
Conversely, a legal question may involve the interpretation of a term in a
WTO legal provision, such as the term “like products” in Article III:2 of
the GATT 1994.
Many of the more complex questions that regularly arise in disputes are
mixed questions of law and fact, or, in other words, questions that can be
answered only on the basis of both a legal and a factual assessment. For
instance, the question of whether shochu and vodka are “like products” in
the sense of Article III:2 of the GATT 1994 is a mixed question of law and
fact. Specifically, it is an application of a WTO legal rule to a particular set
of facts. In such a case, the identification of the legal issue that can be
266
See Appellate Body Reports, US – Offset Act (Byrd Amendment), para. 222; Canada –
Aircraft, para. 211; and US – FSC, para. 103.
267
While, in principle, new arguments are not excluded from the scope of appellate review,
the Appellate Body’s ability to consider new arguments is circumscribed by Article 17.6
of the DSU. In particular, the Appellate Body would be able to consider new arguments
if: (i) they do not require it “to solicit, receive and review new facts”; and (ii) they
“involve either an ‘issue of law covered in the panel report’ or ‘legal interpretations
developed by the panel’”. Such consideration must not compromise a party’s due process
rights to have a fair opportunity to defend itself adequately. Appellate Body Report,
Peru – Agricultural Products, para. 5.83 (referring to Appellate Body Reports, Canada –
Aircraft, para. 211; US – FSC, paras. 102–103; and US – Gambling, para. 270).
268
subject to appeal hinges upon a more detailed and differentiated analysis of
the question involved. Indeed, “[t]he consistency or inconsistency of a
given fact or set of facts with the requirements of a given treaty provision
is . . . a legal characterisation issue. It is a legal question.”269
The characterization of domestic legislation, which often becomes the
subject of dispute settlement, adds an interesting nuance to the distinc-
tion between questions of law and questions of fact. Panels are called
upon to ascertain the meaning of municipal law by undertaking a holistic
assessment of all relevant elements, starting with the text of the law and
including, inter alia, relevant practices of administering agencies, evi-
dence of the consistent application of such law, the pronouncements of
domestic courts on the meaning of such law, the opinions of legal experts
and the writings of recognized scholars.270 An examination of whether
these elements are strictly legal characterizations, or involve factual
aspects as well, depends upon the circumstances of each case. Although
factual aspects may be involved in the individuation of the text and of
some associated circumstances (such as language, date of enactment,
publication, enforcement, issuing authority, etc.),271 an assessment of
the meaning of the text of a municipal law for purposes of determining
whether the law complies with a provision of the covered agreements is a
legal characterization and is therefore subject to appellate review under
Article 17.6 of the DSU.272 Likewise, the examination of the legal inter-
pretation given by a domestic court or by a domestic administering
269
270
Appellate Body Report, US – Carbon Steel, para. 157. See also Appellate Body Reports,
US – Countervailing and Anti-Dumping Measures (China), paras. 4.95–4.102; US – Shrimp
II (Viet Nam), paras. 4.30–4.51; and EU – Biodiesel, paras. 6.153–6.158 and 6.201–6.210.
As part of their duties under Article 11 of the DSU, panels have the obligation to examine
the meaning and scope of the municipal law at issue to make an objective assessment of
the matter before it. Appellate Body Reports, US – Shrimp II (Viet Nam), para. 4.31; US –
Countervailing and Anti-Dumping Measures (China), para. 4.98. For example, in US –
Carbon Steel (India), the Appellate Body found that the panel failed to comply with its
duty under Article 11 of the DSU because, inter alia, it did not make an objective
assessment of the measure at issue, as it neither analysed the text of the measure nor
considered any relevant practice. Appellate Body Report, US – Carbon Steel (India), paras.
4.601–4.615. For more information concerning a panel’s obligations under Article 11 of
the DSU, see the section on the panel’s standard of review on page 84.
271
Similarly, whether or when a domestic court ruling has been rendered and finalized, or
what a writing by a recognized scholar contains, may involve factual aspects.
272
Appellate Body Reports, US – Section 211 Appropriations Act, para. 105; India – Patents
(US), para. 68; US – Countervailing and Anti-Dumping Measures (China), para. 4.11; and
EU – Biodiesel, para. 6.155.
agency as to the meaning of municipal law being reviewed for its WTO-
consistency may be a legal characterization. All of these assessments vary
according to the circumstances of each case, including the national legal
system in which the municipal law operates.273
The Appellate Body may also review a panel’s compliance with the
requirement under Article 11 of the DSU to make an objective assessment
of the facts of a case, the applicability of the relevant covered agreements,
and the conformity of the measures at issue with those agreements. We refer
to pages 84 and 88 for a detailed explanation of the degree to which the
Appellate Body will review whether a panel’s assessment of the facts was
objective, and whether a panel has properly applied its general standard of
review under Article 11 of the DSU or the special provision on standard of
review embodied in Article 17.6 of the Anti-Dumping Agreement.
Right to Appeal
Article 16.4 of the DSU provides that the parties to the dispute, i.e. the
complainant(s) and the respondent (but not third parties) can appeal a
panel report.274 The rationale for the right to appeal is that either party to
the dispute may disagree with the panel’s conclusions. The respondent,
whose challenged measure may have been found to be inconsistent with
WTO law or to nullify or impair a benefit, may wish to appeal the panel’s
findings that the measure is WTO-inconsistent. The complainant, whose
claims may have been rejected by the panel, may wish to appeal the panel’s
findings that the measure at issue was not found to be WTO-inconsistent.
Even if a panel were to uphold at least some of a complainant’s claims of
violation, meaning that the complainant may have “won” overall at the
panel stage, the complainant may wish nonetheless to appeal the panel’s
findings rejecting the complainant’s other claims of violation.
Once one party to the dispute has filed an appeal, acting as an
“appellant” (Rule 20 of the Working Procedures), a party to the dispute
other than the appellant is also entitled to appeal aspects of the panel
report, either on the same grounds as the appellant or on the basis of
other alleged errors, thereby expanding the scope of appellate review.
This form of appeal is called an “other appeal”, or, informally, a “cross-
273
Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China),
paras. 4.100–4.101, referring to Appellate Body Report, US – Carbon Steel, para. 157.
274
At the appellate stage, both the complainant(s) and the respondent become known as
“participants”. Rule 1 of the Working Procedures.
appeal”, and the party that files this appeal is called an “other appellant”
(Rule 23(1) of the Working Procedures). Thus, if both of the parties to a
dispute challenge the panel report on appeal, each of them is, at the same
time, an appellant (as the party making a claim of error on the part of the
panel) and an appellee (as the party responding to an alleged claim or
error on the part of the panel).275
In the past, parties have also appealed isolated panel findings with
which they disagreed (for instance, a legal interpretation developed by
the panel), even though these findings were part of the reasoning which
ultimately upheld their position. For example, in US – Anti-Dumping and
Countervailing Duties (China), the panel ruled in favour of China and
found that the United States had acted inconsistently with one of its
obligations under the SCM Agreement. Nevertheless, China appealed
because it disagreed with the legal interpretation that formed the basis
on which the panel had reached that particular conclusion.276
Third Participants at the Appellate Stage

Third parties to panel proceedings cannot appeal a panel report (Article
17.4 of the DSU). However, WTO members that have been third parties
at the panel stage may participate in an appeal as “third participants”
(Rule 24(1) of the Working Procedures), and thus, may make written
submissions to the Appellate Body and be given an opportunity to be
heard by the Appellate Body during an oral hearing. A WTO member
that has not been a third party at the panel stage is excluded from
participation in the appellate review. Such WTO member cannot join
appellate proceedings, even if it identifies an interest in the dispute, for
instance, in light of the content of the panel report.277
275
Rule 22 or Rule 23(4) of the Working Procedures. See also page 111.
276
Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China),
para. 403. See also Appellate Body Report, Argentina – Financial Services, fn. 433.
277
In EC – Sardines, however, a WTO member that had not been a third party at the panel
stage of the dispute chose to submit its views to the Appellate Body in the form of an
amicus curiae brief. The Appellate Body stated that the fact that the WTO member, as a
sovereign State, chose not to exercise its right to participate in the dispute as a third party
at the panel stage does not undermine the legal authority of the Appellate Body under
the DSU and the Working Procedures for Appellate Review to accept and consider the
amicus curiae brief submitted by the WTO member. See Appellate Body Report, EC –
Sardines, paras. 161–167. See the section concerning amicus curiae submissions in
appellate review proceedings on page 165.
In the first years of the WTO dispute settlement system, third parties
that wanted to participate in the appellate process as third participants had
to file a written submission, stating their intention to participate as a third
participant in the appeal and explaining the grounds and legal arguments
in support of their position, within a certain time frame after the notice of
appeal. Third parties that had not done so had no right to participate in the
oral hearing before the Appellate Body. Over the years, however, a practice
developed of admitting such third parties as “passive observers” to the oral
hearing, with the (explicit or tacit) agreement of the participants. Against
the background of this practice and in an effort to enhance third-party
participation in appeals, the Working Procedures were subsequently
changed. The amendments to Rule 24 resulted in a more flexible approach
to third-party participation. More specifically, a third party is no longer
required to file a third participant’s submission in order to be entitled to
attend the oral hearing before the Appellate Body. A third party now has
the following options if it wants to become a third participant in an
appellate review, with varying degrees of involvement. It may:
(a) file a third participant’s submission within twenty-one days of the
filing of the notice of appeal, appear at the oral hearing, and make an
oral statement, if it so wishes (Rules 24(1) and 27(3)(a) of the
Working Procedures);
(b) not file any submission, but notify the Appellate Body Secretariat in
writing and within twenty-one days of the intention to appear at the
oral hearing, and to make an oral statement, if desired (Rules 24(2)
and 27(3)(a) of the Working Procedures); or
(c) not file any submission and not make any notification of its intention
to appear at the oral hearing within twenty-one days of the filing of
the notice of appeal, but notify the Appellate Body Secretariat there-
after, preferably in writing and at the earliest opportunity, of its
intention to appear at the oral hearing and request to make an oral
statement at the Appellate Body’s discretion (Rules 24(4) and 27(3)
(b) and (c) of the Working Procedures).
Composition of Appellate Body Division

Article 17.1 of the DSU provides that three of the seven Appellate Body
members serve on each appeal and that the seven members serve in
rotation, as further specified in the Working Procedures. Rule 6 of the
Working Procedures calls this group of three Appellate Body members a
“division”. Specifically, Rule 6(2) provides for a selection of the three
members constituting a division on the basis of rotation, while taking into
account the principles of random selection, unpredictability and opportun-
ity for all Appellate Body members to serve on a division regardless of their
nationality. This selection process differs from the process that occurs at the
panel stage, where persons holding the citizenship of a party or third party
cannot serve as panelists, except with the agreement of the parties. Thus, an
Appellate Body member who is a citizen of a WTO member acting as a
participant or third participant in an appeal may not be excluded from
serving on the Appellate Body division hearing that appeal. Additionally, an
Appellate Body member may serve on more than one division at the same
time, depending upon the number of appeals under review at a particular
time and the availability of other Appellate Body members.278
The three Appellate Body members comprising the division for a particu-
lar appeal shall, in turn, elect one member of the division to act as its
presiding member (Rule 7(1) of the Working Procedures). The presiding
member coordinates the overall conduct of the appellate proceedings, chairs
the oral hearing and meetings related to that appeal, and coordinates the
drafting of the Appellate Body report (Rule 7(2) of the Working Procedures).
As explained on page 118, the Appellate Body operates in a collegial
system (Rule 4 of the Working Procedures). This means that although
only the three members comprising the particular division for an appeal
will take the final decision, the division must first exchange views on the
appeal with all other non-division Appellate Body members before
rendering their decision.
Procedures for Appellate Review

Notice of Appeal
According to Article 16.4 of the DSU, the appeal process begins when “a
party to the dispute formally notifies the DSB of its decision to
appeal”.279 Rule 20(1) of the Working Procedures requires that a notice
of appeal be simultaneously filed with the Appellate Body Secretariat.
278
For example, one Appellate Body member served on the divisions in both US – Washing
Machines and India – Solar Cells, whose Appellate Body reports were circulated on
7 September 2016 and 16 September 2016, respectively. Appellate Body Reports, US –
Washing Machines, p. 12; and India – Solar Cells, p. 7.
279
Before an appeal is filed, the Appellate Body Secretariat sends a pre-appeal letter to the
parties with practical information on how and when to file the notice of appeal and of
other appeal, in the event any of the parties decide to appeal.
The notice of appeal is then circulated within the WT/DS series. The
party that has filed a notice of appeal is known as an “appellant”.
Article 16.4 of the DSU does not specify a precise deadline for the
filing of an appeal. However, the appellant must notify the DSB of its
decision before the adoption of the panel report. As described on page
125, the adoption of the panel report may take place, at the earliest, on
the twentieth day after the circulation of the panel report, and it must (in
the absence of an appeal or a negative/reverse consensus against adop-
tion) occur within sixty days after the circulation of that report. Thus, the
adoption of a panel report may occur on any day between the twenty to
sixty day period (with a ten-day notice required for requesting items to
be placed on the agenda). Since the appeal must be filed before adoption
actually occurs,280 the effective deadline for filing an appeal is variable
and could be as short as twenty days, but it can also be longer, for
instance, sixty days. Thus, if the party that emerged from the panel
proceedings as the “winner” wants to shorten the deadline for the other
party to file an appeal, it can do so by placing the panel report on the
agenda for a DSB meeting to occur on the twentieth day after the panel
report has been circulated. In recent times, given the increase in the
workload of the Appellate Body, parties have sometimes jointly requested
the DSB to extend the period of time within which they may file an
appeal in order to gain flexibility in the scheduling of appeals.281
As regards the content of the notice of appeal, Rule 20(2)(d)282 of the
Working Procedures requires that a notice of appeal include a brief
statement of the nature of the appeal, including the allegations of error
in the issues of law covered in the panel report and legal interpretations
developed by the panel. In addition, the notice of appeal must include the
list of the provisions of the covered agreements that the panel is alleged to
have erred in interpreting or applying, as well as an indicative list of the
paragraphs in the panel report that contain the alleged errors. However,
the notice of appeal is not intended to be a summary or outline of the
280
It is quite common for appeals to be notified on the very morning of a DSB meeting
scheduled to adopt a panel report. If the panel report was the only item on the agenda,
the DSB meeting would then be cancelled.
281
See page 125 for additional discussion of timelines for filing an appeal. See also footnote
340 in Chapter 4 concerning joint requests submitted to the DSB by the parties to a
dispute for an extension of the period of time within which to file an appeal.
282
Rules 20(2)(a) to (c) of the Working Procedures require several formalities, such as
specifying the name and address of the party, as well as identifying the panel report that
is being appealed.
arguments of the appellant, which should be set out in the appellant’s
submission rather than in its notice of appeal.283
The allegations of error to be included in the notice of appeal must
relate to the aspects of the panel report that the appellant wishes the
Appellate Body to reverse. The allegations of error can thus include some,
or all, of the panel’s findings and conclusions, including its supporting
reasoning that the measure at issue violates, or does not violate, the
relevant covered agreement. The allegations of error can also concern
an isolated legal interpretation that forms part of the panel’s reasoning in
support of a conclusion. Thus, in setting out the allegations of error in a
notice of appeal, the appellant can challenge a panel’s conclusion and
assert that the panel erred by finding that the respondent acted inconsist-
ently with Article X, Y or Z. The appellant can also challenge an isolated
legal interpretation in the panel report and assert, for example, that the
panel “erred in its interpretation of Article III:2 ... in finding that
‘likeness’ can be determined purely on the basis of physical characteris-
tics, consumer uses and tariff classification without considering also the
context and purpose of Article III ... and without considering ... whether
regulatory distinctions are made ... ‘so as to afford protection to
domestic production’”.284 In addition, the appellant may challenge the
panel’s adherence to the “objective assessment” standard in Article 11
of the DSU.285
The notice of appeal thus serves as the “trigger” for initiating the
appeal and also serves a due process function in ensuring that the
appellee receives notice, albeit brief, of the “nature of the appeal” and
the “allegations of error” by the panel that the appellant is claiming.286
A failure to comply with Rule 20(2)(d) requirements may result in the
exclusion of a given claim from the scope of appellate review. This is so
because the failure to comply with such requirements may cause the
appellee not to receive sufficient notice that a particular claim will be
advanced by the appellant.287 Note, however, that certain issues, such as
those concerning a panel’s jurisdiction, are so fundamental that the
283
Appellate Body Report, US – Shrimp, para. 95.
284
Appellate Body Report, Japan – Alcoholic Beverages II, p. 4, which includes the summary
of one of the United States’ requests for review by the Appellate Body in that case.
285
See pages 84 and 105 on the panel’s standard of review and the scope of appellate review,
respectively.
286
Appellate Body Reports, US – Countervailing Measures on Certain EC Products, para. 62;
US – Offset Act (Byrd Amendment), para. 200.
287
Appellate Body Report, US – Offset Act (Byrd Amendment), para. 206.
Appellate Body could review them even if they are not raised in the
notice of appeal.288
Notice of Other Appeal

It is often the case that another party (or parties) chooses to cross-appeal
(Rule 23 of the Working Procedures).289 This second notice of appeal,
referred to as a “notice of other appeal”, must indicate either a statement
of the issues raised on appeal by another participant with which the party
joins; or a brief statement of the nature of the other appeal which satisfies
the same requirements as a notice of appeal under Rule 20(2)(d).290 The
notice of other appeal is also circulated to members within the WT/DS
series.
It is possible to amend a notice of appeal or a notice of other appeal
provided that the Appellate Body authorizes it (Rule 23bis of the
Working Procedures).
According to Rule 25 of the Working Procedures, the Director-
General shall, upon the filing of the notice of appeal, transmit forthwith
to the Appellate Body the complete record of the panel proceedings. In
practice, it is the Dispute Settlement Registrar who transmits the panel
record to the Appellate Body Secretariat, including the written submis-
sions of the parties to the panel, their oral statements, their written
responses to questions and comments thereon, exhibits introduced as
evidence, the interim report and the interim review comments. The DS
Registry also provides access to the digital recordings of the substantive
meetings. The internal exchanges between the panel and the WTO
Secretariat are not transmitted to the Appellate Body Secretariat and
thus remain confidential within the DS Registry.
Written Submissions
On the same day as it files the notice of appeal, the appellant must also
file its written submission (Rule 21(1) of the Working Procedures), which
must include: (i) a precise statement of the grounds of appeal, including
the specific allegations of errors in the issues of law covered in the panel
288
In US – Offset Act (Byrd Amendment), the Appellate Body stated that “[t]he 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”. Appellate Body Report, US – Offset Act (Byrd Amendment), para. 206.
289
See footnote 279 in Chapter 4 on the pre-appeal letter.
290
Appellate Body Report, EC – Fasteners (China), paras. 582 and 605.
report and legal interpretations developed by the panel, and the legal
arguments in support thereof; (ii) a precise statement of the provisions of
the covered agreements and other legal sources relied on; and, (iii) the
nature of the decision or ruling sought (Rule 21(2) of the Working
Procedures).
In the case of a cross-appeal, the “other appellant” files a written
submission within five days of the filing of the notice of appeal (Rule
23(1) of the Working Procedures).291 Within eighteen days from the
filing of the notice of appeal, any party to the dispute that wishes to
respond to allegations raised in an appellant’s submission can file a
written submission (Rule 22(1) of the Working Procedures). This sub-
mission, known as the appellee’s submission, must set out: (i) a precise
statement of the grounds for opposing the specific allegations of errors,
raised in the appellant’s submission, in the issues of law covered in the
panel report and legal interpretations developed by the panel, as well as
the legal arguments supporting those allegations of errors; (ii) the accept-
ance of, or opposition to, each of the grounds set out in the appellant’s
submission; (iii) a precise statement of the provisions of the covered
agreements and other legal sources relied on; and (iv) the nature of the
decision or ruling sought (Rule 22(2) of the Working Procedures).
Parties wishing to respond to the allegations raised by the “other
appellant” may also file a written submission within eighteen days of
the filing of the notice of appeal (Rule 23(4) of the Working
Procedures).292
Any third participants wishing to file a written submission setting
forth their position and legal arguments must do so within twenty-one
days of the filing of the notice of appeal.293
Prior to the amendments that took effect on 15 September 2010,
the Working Procedures did not provide any specific time of day for
the filing of submissions on the date they were due. In the context of the
latest amendments to the Working Procedures, the Appellate Body
standardized and regularized the format and timing of submissions in
appeals. Specifically, paragraphs 1, 2, and 4 of Rule 18 were amended to
291
In China – Rare Earths, the Appellate Body granted a participant’s request for an
extension of the period of time allowed to file a Notice of Other Appeal and other
appellant’s submission. Appellate Body Reports, China – Rare Earths, paras. 1.30–1.31.
292
In India – Solar Cells, the Appellate Body extended the deadline for the appellee to file its
submission by one day. Appellate Body Report, India – Solar Cells, paras. 1.10–1.12.
293
See the section concerning third participants in appellate review proceedings on
page 109.
provide that official versions of documents in paper form are to be
submitted to the Appellate Body Secretariat by 5 p.m. Geneva time on
the day that the document is due. In addition, paragraph 4 of Rule 18 was
amended to provide that an electronic copy of each such document
should also be submitted to the Appellate Body by the same deadline.
As is the case with panel proceedings, the Appellate Body requests
participants in appellate proceedings to submit executive summaries of
their written submissions by the same deadline as the written submis-
sions themselves.294 These executive summaries were originally intended
to assist the Appellate Body in summarizing the arguments of the
participants in its report. In 2015, following the practice developed by
panels, the Appellate Body adopted new guidelines whereby the executive
summaries submitted by the participants and third participants295 were
to be annexed to the Appellate Body report.296
Unlike panel proceedings, in which written submissions and any other
correspondence must be filed with the Dispute Settlement Registrar, all
written documents concerning an appeal must be filed with the Appellate
Body Registrar (Rule 18 of the Working Procedures). Documents
received outside the deadline fixed by the Appellate Body may be
rejected.297 As with panel proceedings, the parties, participants, third
parties and third participants must serve their submissions directly on all
the other parties, participants, third parties or third participants (Rule 18
(2) of the Working Procedures).
294
In the particular circumstances of one appeal, the Appellate Body accepted a third
participant’s request that its executive summary be included in the Addendum to an
Appellate Body report even though the executive summary was not filed in accordance
with the official Working Schedule. See Appellate Body Report, Argentina – Financial
Services, paras. 1.9–1.11.
295
Pursuant to the Working Procedures, third participants may elect, but are not required,
to submit written submissions to the Appellate Body.
296
WT/AB/23.
297
Although Rule 18(1) of the Working Procedures indicates that official versions of
documents shall be submitted in paper form to the Appellate Body Secretariat by
17:00 Geneva time on the day that the document is due, the Appellate Body has not
yet rejected submissions filed on that day but after the 17:00 deadline. For instance,
Appellate Body Reports, US – Stainless Steel (Mexico), para. 164; and US – Continued
Suspension/Canada – Continued Suspension, para. 30. Nonetheless, the Appellate Body
has rejected executive summaries from third participants filed one or two days after the
deadline. For example, Appellate Body Reports, Australia – Apples, fn. 40; and US –
Anti-Dumping and Countervailing Duties (China), fn. 35.
Oral Hearing
Approximately thirty to forty-five days after the filing of the notice of
appeal, the Appellate Body division assigned to the appeal holds an oral
hearing (Rule 27(1) of the Working Procedures).298 The hearings are
usually only open to the participants and third participants. In recent
years, though, as with some substantive meetings in panel proceedings,
the Appellate Body has authorized the oral hearing to be open for public
observation at the joint request of the participants.299 The first appeal in
which the hearing was opened for public observation was the dispute in
US – Continued Suspension/Canada – Continued Suspension. In its
procedural ruling on this issue, the Appellate Body noted that Article
18.2 of the DSU allows parties to forgo confidentiality protection in
respect of their statements of position. To the Appellate Body, Article
18.2 provides contextual support for the view that the confidentiality rule
in Article 17.10 is not absolute.300 Moreover, the Appellate Body noted
that the DSU does not specifically provide for an oral hearing at the
appellate stage, and that an oral hearing was introduced into the appellate
review process by the Appellate Body in Rule 27 of its Working Proced-
ures, which were drawn up pursuant to Article 17.9 of the DSU. Since the
conduct and organization of the oral hearing falls within the authority of
the Appellate Body, the Appellate Body reasoned that it has the power to
exercise control over its conduct301 and thus to decide whether to open it
for public observation.
At the oral hearing, the participants and third participants make a
brief opening statement, after which the Appellate Body division poses
questions to the participants and third participants. The oral hearing is
thus similar to substantive meetings at the panel stage,302 but some
298
In EC – Seal Products, the Appellate Body elected to modify the date of the oral hearing
following a request from a participant who faced logistical difficulties. Appellate Body
Reports, EC – Seal Products, paras. 1.14 and Annex 5.
299
See, for example, Appellate Body Reports, Canada – Feed-In Tariff Program, paras.
1.27–1.29 and Annex 4; EC – Seal Products, paras. 1.11–1.13, 1.16 and Annex 4; and
US – COOL (Article 21.5 – Canada/Article 21.5 – Mexico), paras. 1.22–1.23 and Annex 6.
300
Annex IV (Procedural Ruling of 10 July 2008 to allow public observation of the oral
hearing), para. 4.
301
Annex IV (Procedural Ruling of 10 July 2008 to allow public observation of the oral
hearing), para. 4.
302
See the section on oral hearings (substantive meetings) at the panel stage on page 80.
differences exist. For example, unlike original303 panel proceedings, there
is usually one oral hearing at the appellate review stage. Moreover, at the
appellate review stage, oral statements are kept short; the participants in
an oral hearing cannot ask each other questions and must respond at the
hearing to the questions posed by the division;304 third participants
attend the entire hearing with the appellant and appellee; and the hear-
ings are transcribed.
Deliberations of the Appellate Body

After the oral hearing, the division exchanges views on the issues raised
in the appeal with the four other Appellate Body members who are not
serving on the division. This exchange of views is intended to give effect
to the principle of collegiality and serves to ensure consistency and
coherence in the jurisprudence of the Appellate Body (Rule 4(1) of the
Working Procedures). Divergent or inconsistent lines of jurisprudence
that might otherwise arise would detract from the security and predict-
ability of the multilateral trading system, which is one of the main
objectives of the dispute settlement system (Article 3.2 of the DSU).
Nevertheless, as prescribed by Article 17.1 of the DSU, only the assigned
division may ultimately decide on the appeal (Rules 3(1) and 4(4) of the
Working Procedures).
Following the exchange of views with the other Appellate Body
members, the division concludes its deliberations and the Appellate Body
report is drafted. All deliberations of the Appellate Body are confidential,
and the drafting of the report takes place without the presence of the
participants and third participants (Article 17.10 of the DSU). In contrast
to the panel procedure, there is no interim review at the appellate review
stage.305
The Working Procedures for Appellate Review also envisage that a
division of Appellate Body members deliberating on an appeal must
make every effort to take their decisions by consensus. Where this is
not possible, the majority decides (Rule 3(2) of the Working
303
As opposed to compliance panel proceedings pursuant to Article 21.5 of the DSU. See
page 136.
304
This is in contrast to the panel level, where the parties may refrain from answering a
question posed by the panel during the substantive meeting – typically a factual question –
on the ground that they need to consult their colleagues in capital. Parties may send their
responses in writing within the deadline fixed by the panel.
305
See the section on the interim review stage in the panel review process on page 100.
Procedures). A division member may include a separate opinion in
the Appellate Body report, but he/she must do so anonymously
(Article 17.11 of the DSU).306
Mandate of the Appellate Body

The DSU prescribes that the Appellate Body must address each of the
legal issues and panel interpretations that have been appealed (Article
17.12 of the DSU). It may uphold, modify or reverse the legal findings
and conclusions of the panel (Article 17.13 of the DSU).
In most cases, the Appellate Body partly modifies the panel’s legal
findings, i.e. it agrees with the panel’s final conclusion but not necessarily
with the panel’s legal reasoning. However, if it agrees with both the
panel’s reasoning and its conclusions, the Appellate Body upholds the
panel finding at issue. If the Appellate Body disagrees with the panel’s
legal interpretation or conclusion, it reverses the panel finding at issue.307
In certain cases, the Appellate Body also completes the analysis in the
panel’s findings with a view to securing a positive solution to the dispute
(Article 3.7 of the DSU). This can happen, for instance, if the Appellate
Body has reversed a panel’s finding of violation or in circumstances where
the panel exercised judicial economy with regard to other claims within its
terms of reference.308 In such a situation, there would be no panel findings
on those additional claims for the Appellate Body to review.309 If the
306
There have been few instances where members of a division have expressed separate or
concurrent opinions, views or statements. For example, Appellate Body Reports, EC –
Asbestos, paras. 149–154; US – Upland Cotton, paras. 631–641; US – Continued Zeroing,
paras. 305–313; US – Zeroing (EC) (Article 21.5 – EC), paras. 259–270; EC and certain
member States – Large Civil Aircraft, para. 726(a), (b) and (c); and US – Large Civil
Aircraft (2nd complaint), fn. 1118, 1130, and 1153. See also footnote 324 in Chapter 4.
307
Although not provided for in the DSU, if certain legal findings of the panel are no longer
relevant because they are related to or based on a legal interpretation reversed or
modified by the Appellate Body, the Appellate Body may declare such panel findings
as “moot and having no legal effect”. See, for instance, Appellate Body Reports, Brazil –
Aircraft (Article 21.5 – Canada), para. 78; US – Certain EC Products, paras. 89–90; US –
Cotton Yarn, para. 127; Canada – Feed-In Tariff Program/Canada – Renewable Energy,
paras. 5.82, 5.84, and 5.121; US – Countervailing and Anti-Dumping Measures (China),
para. 4.120; EC and certain member States – Seal Products, para. 5.70; China – HP-SSST
(Japan)/China – HP-SSST (European Union), paras. 5.193 and 5.317; and Argentina –
Financial Services, para. 6.83.
308
See the section on judicial economy on page 89.
309
In practice, depending on the circumstances and claims at issue, panels exercising
judicial economy may nonetheless have made factual findings that will allow the
Appellate Body were to limit itself to reversing the panel’s findings and
conclusions, the dispute might not be fully resolved. The complainant may
then have to start panel proceedings afresh if it wants the outstanding
issues to be resolved.
In the absence of remand authority,310 the Appellate Body has on a
number of occasions “completed the legal analysis” to resolve a dispute,
where it determined that it had a sufficient factual basis to do so, on the
basis of undisputed facts on the record or relevant factual findings made by
the panel.311 The Appellate Body has also indicated that it may complete
the analysis if a legal provision that a panel has not examined is closely
related to a legal provision that the panel has examined, and if the Appellate
Body believes that the two provisions are part of a logical continuum,
provided that the participants’ due process rights are not compromised.312
Where this has not been the case, the Appellate Body has declined to
complete the analysis.313 As Article 17.6 of the DSU limits appeals to
issues of law covered in the panel report and legal interpretations
developed by the panel, the Appellate Body has declined to complete
Appellate Body to complete the analysis if need be. In some cases, panels have also made
findings on an arguendo basis. See, for instance, Panel Report, Colombia – Ports of Entry,
para. 7.170. The Appellate Body has also resorted to the use of arguendo assumptions.
See, for instance, Appellate Body Reports, Mexico – Corn Syrup (Article 21.5 – US), paras.
52–53, 67; and US – Oil Country Tubular Goods Sunset Reviews, para. 220. Although
panels and the Appellate Body may choose to employ the use of arguendo assumptions
in particular circumstances, it may not always provide a solid foundation upon which to
rest legal conclusions. Appellate Body Report, China – Publications and Audiovisual
Products, para. 213.
310
Black’s Law Dictionary provides the following definition of the verb “remand”: “[t]o
send (a case or claim) back to the court or tribunal from which it came for some further
action”. The authority of the Appellate Body to remand a dispute to a panel is not
contemplated in the DSU.
311
Appellate Body Reports, US – Carbon Steel (India), paras. 4.461–4.462; and EC – Seal
Products, paras. 5.315–5.339.
312
See, for instance, Appellate Body Reports, Canada – Periodicals, pp. 23–24; EC –
Asbestos, para. 79; EC – Hormones, para. 222; EC – Export Subsidies on Sugar, para. 337;
and EC – Fasteners (China), para. 395. Additionally, in US – Countervailing Measures
(China), the Appellate Body determined that, in addressing whether the US Department
of Commerce’s benefit determinations at issue were consistent with Articles 14(d) and
1.1(b) of the SCM Agreement, the absence of factual findings by the panel or an
evaluation by the panel of the relevant determinations would not prevent the Appellate
Body from completing the legal analysis so long as it could complete the analysis on the
basis of the plain text of the US Department of Commerce’s determinations. Appellate
Body Report, US – Countervailing Measures (China), para. 4.83.
313
Appellate Body Report, EC – Asbestos, para. 78. See also Appellate Body Report, EC and
certain member States – Large Civil Aircraft, para. 1140.
the legal analysis of a panel in circumstances where that would involve
addressing claims that the panel had not examined at all.314 For instance,
in Canada – Periodicals, the Appellate Body reversed the panel’s findings
on the issue of “like products” under Article III:2 of the GATT 1994 and
decided to complete the panel’s analysis by making a determination of
whether the goods at issue were “directly competitive or substitutable”
within the meaning of Article III:2, second sentence, of the GATT
1994.315 In other cases, such as Australia – Apples316 or US – Continued
Zeroing,317 the Appellate Body found that it was not in a position to
complete the analysis due to the absence of sufficient factual findings by
the panel or undisputed facts on the panel record.318 The Appellate Body
has also declined to complete the legal analysis for other reasons, such as
“the complexity of the issues, the absence of full exploration of the issues
before the panel, and, consequently, considerations for parties’ due
process rights”.319
The Appellate Body Report

Like panel reports, Appellate Body reports include a description of the
arguments of the participants and third participants. An Appellate Body
report will usually contain an overview of the measures at issue. Most
importantly, it includes a findings section where the Appellate Body
addresses in detail the issues raised on appeal, elaborates its conclusions
and reasoning in support of such conclusions, and states whether the
appealed panel findings and conclusions are upheld, modified or
reversed. As described above, depending on the case, the report may
contain additional conclusions, for instance where the Appellate Body
has completed the panel’s analysis.
314
Appellate Body Report, EC – Asbestos, paras. 79, 82.
315
Appellate Body Report, Canada – Periodicals, pp. 24–26.
316
Appellate Body Report, Australia – Apples, paras. 385, 402.
317
Appellate Body Report, US – Continued Zeroing, para. 195.
318
Appellate Body Reports, EC – Export Subsidies on Sugar, paras. 340–341; Canada –
Renewable Energy/Canada – Feed-In Tariff Program, para. 5.246; India – Agricultural
Products, para. 5.51; and US – COOL (Article 21.5 – Canada) (Article 21.5 – Mexico),
paras. 5.319–5.323.
319
Appellate Body Reports, Canada – Renewable Energy/Canada – Feed-In Tariff Program,
para. 5.224 (referring to Appellate Body Report, and EC – Export Subsidies on Sugar,
fn. 537 to para. 339). See also ibid., para. 5.246; US – Countervailing and Anti-Dumping
Measures (China), paras. 4.182–4.183; US – Countervailing Measures (China), paras.
4.208–4.209; and EC – Seal Products, para. 5.69.
As for recommendations and suggestions, Article 19 of the DSU
applies to panels as well as to the Appellate Body.320 Where the
Appellate Body concludes that the challenged measure is inconsistent
with a covered agreement, it recommends that the respondent bring the
inconsistent measure into conformity with its obligations under the
covered agreement in question (Article 19.1 of the DSU, first sentence).
As explained, in practice, these recommendations are addressed to the
DSB, which then requests the respondent to bring its measure into
conformity with the relevant provisions of the covered agreements. Like
the panel,321 the Appellate Body may also suggest ways in which the
respondent could implement the recommendation (Article 19.1 of the
DSU, second sentence).322 However, as of 1 December 2016, the Appel-
late Body had not made use of this possibility. If a non-violation
complaint succeeds, the panel or Appellate Body would recommend
that the parties find a mutually satisfactory adjustment (Article 26.1(b)
of the DSU).
As described above, and as with panel reports,323 the DSU foresees the
possibility that Appellate Body members serving on a division express
their individual opinions anonymously. Accordingly, Appellate Body
reports have occasionally included such individual opinions, expressed
as concurring statements, separate opinions, separate views, etc.324
After the report is finalized and signed by the members of the Appel-
late Body division hearing the appeal, it is translated into the two other
official languages of the WTO. There is no equivalent to the issuance of
the final panel report to the participants pending its translation into the
other official languages325 of the WTO before circulation to members.
320
See the section on panel recommendations on page 101.
321
See the section on the content of the panel report on page 99.
322
Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), para. 466.
323
See footnote 145 in Chapter 4 for examples of separate opinions in panel reports.
324
For instance, Appellate Body Reports, EC – Asbestos, paras. 149–154 and US – Con-
tinued Zeroing, paras. 305–313 (concurring statement); US – Upland Cotton, paras.
631–641, India – Solar Cells, paras. 5.156–5.163 and US – Washing Machines, paras.
5.191–5.203 (separate opinions); EC and certain member States – Large Civil Aircraft,
para. 726(a), (b) and (c) and US – Large Civil Aircraft (2nd complaint), fns. 1118,
1130 and 1153 (separate views from each Appellate Body member in Appellate Body
Report).
325
In some disputes where the panel’s working language was English but one or more
parties were Spanish-speaking, the various parts of the panel report (i.e. descriptive part,
interim report and final report) were issued to the parties simultaneously in English and
Spanish, at the request of one or more parties. See page 103.
The participants receive the Appellate Body report on the same day that
it is circulated to all WTO members in all three official languages.326 This
report then becomes a public WT/DS document (the symbol ends with
“AB/R”, thus WT/DS###/AB/R).327
Withdrawal of an Appeal
Rule 30(1) of the Working Procedures for Appellate Review allows an
appellant to withdraw its appeal at any time during the appeal. The
possibility of withdrawing an appeal reflects the DSU’s preference for
the parties to find a mutually agreed solution to their dispute (Article 3.7
of the DSU).328
The withdrawal of an appeal may terminate the appellate review
proceedings. On occasions where the withdrawal of an appeal had the
effect of terminating the appeal, the Appellate Body issued a brief report
setting out the procedural history of the appeal and concluding that it
had therefore completed its work in view of the withdrawal.329 However,
the withdrawal of an appeal will not always lead to the termination of the
entire appellate proceedings. For instance, a participant may merely
withdraw a conditional appeal, i.e. an appeal conditional upon another
party’s appeal of certain findings. In that case, other findings under
appeal would not be affected.330
326
In practice, however, the participants receive the Appellate Body report a few hours
before it is made public.
327
See page 49 concerning the publication of official documents within the WT/DS series.
In certain instances, where more than one appeal has been filed in a dispute involving
more than one panel report, the Appellate Body has elected to consolidate the appeals of
the panel reports and issue the Appellate Body reports for these appeals as a single
document with, inter alia, the document symbol for each report on pages that are
common to all reports, as well as separate pages for the findings and conclusions in
each appeal. For example, see the Appellate Body Reports in EC – Seal Products, China –
Rare Earths, Argentina – Import Measures, and China – HP-SSST (Japan) / China – HP-
SSST (European Union).
328
In fact, Rule 30(2) foresees the possibility of a mutually agreed solution and provides for
its notification to the DSB pursuant to Article 3.6 of the DSU to be made through the
Appellate Body (as opposed to through the WTO Secretariat).
329
This happened in the India – Autos dispute. Appellate Body Report, India – Autos,
paras. 14–18.
330
For instance, in EC and certain member States – Large Civil Aircraft, the European
Union appealed certain findings by the panel on the condition that the United States
appealed certain other findings of the panel. As the conditions on which these appeals
were premised did not arise, the European Union withdrew these conditional appeals.
Appellate Body Report, EC and certain member States – Large Civil Aircraft, fn. 77.
On a number of occasions, appellants have withdrawn their appeals in
order to re-file an appeal shortly thereafter. This has been done for
scheduling reasons (i.e. to postpone the entire appeal process by a few
weeks)331 or, before the inclusion in 2005 of Rule 23bis (“Amending
Notices of Appeal”) of the Working Procedures, to amend a notice of
appeal.332
Deadline for Completion of the Appellate Review

Pursuant to Article 17.5 of the DSU, the time period between the filing of
a notice of appeal and the circulation of an Appellate Body report shall,
as a general rule, not exceed sixty days. Furthermore, Article 17.5
provides that, when the Appellate Body considers that it cannot circulate
its report within sixty days from the filing of a notice of appeal, it is
required to inform the DSB of the reasons for the delay and to give an
estimate of the period within which it will circulate its report.333 Article
17.5 also provides that “[i]n no case shall the proceedings exceed 90
331
For instance, see Appellate Body Reports, US – FSC, para. 4; US – Line Pipe, para. 13; and
US – Softwood Lumber IV, para. 6.
332
Prior to the introduction of Rule 23bis, the Working Procedures did not explicitly allow
an appellant to amend its Notice of Appeal. In 2002, the European Communities sought
to do so in EC – Sardines by conditionally withdrawing its original Notice of Appeal and
re-filing a new one immediately afterwards. The appellee, Peru, objected. The Appellate
Body considered that the manner in which the European Communities had proceeded
was reasonable and permissible. Appellate Body Report, EC – Sardines, paras.
146–147, 150.
333
The chairperson of the Appellate Body division in a particular appeal will submit a letter
to the chairperson of the DSB explaining the reasons for the delay and providing an
estimate of the period of time needed to complete the appeal and circulate its report. For
example, see Communications from the Appellate Body, EC – Fasteners (Article 21.5 –
China), WT/DS397/23, 12 November 2015; EC – Seal Products, WT/DS400/10, WT/
DS401/11, 26 March 2014; US – Shrimp II (Viet Nam), WT/DS429/6, 7 April 2015;
India – Agricultural Products, WT/DS430/9, 7 April 2015; China – Rare Earths, WT/
DS431/11, 19 June 2014; China – Rare Earths, WT/DS431/12, WT/DS432/10, WT/
DS433/10, 27 June 2014; US – Carbon Steel (India), WT/DS436/8, 8 October 2014;
US – Countervailing Measures (China), WT/DS437/9, 22 October 2014; Argentina –
Import Measures, WT/DS438/17, WT/DS444/15, WT/DS445/16, 24 November 2014;
US – Countervailing and Anti-Dumping Measures (China), WT/DS449/8, 10 June 2014;
Argentina – Financial Services, WT/DS453/9, 4 January 2016; China – HP-SSST (Japan)/
China – HP-SSST (European Union), WT/DS454/9, WT/DS460/9, 27 July 2015; India –
Solar Cells, WT/DS456/10, 24 June 2016; Peru – Agricultural Products, WT/DS457/9,
2 June 2015; Colombia – Textiles, WT/DS461/7, 29 March 2016; US – Washing
Machines, WT/DS464/9, 24 June 2016; and EU – Biodiesel, WT/DS473/12, 26 July 2016.
days”.334 The SCM Agreement provides for a shorter appellate deadline
in disputes on prohibited subsidies: thirty days as a general time frame
and sixty days as maximum (Article 4.9 of the SCM Agreement).
Since the establishment of the WTO, the Appellate Body has circulated
its reports close to ninety days after the notice of appeal was filed, the
average being ninety-eight days.335 This average does not take into
account the Large Civil Aircraft cases,336 where the completion of appel-
late review took exceptionally long due to the complexity of the cases.
Adoption of the Reports by the Dispute Settlement Body

Panel and Appellate Body Reports become binding on the parties to a
dispute only once the DSB has adopted them. This is why the DSU describes
the function of panels as assisting the DSB in discharging its responsibilities
under the DSU and the covered agreements (and making such findings as
will assist the DSB in making the recommendations or in giving the rulings
provided for in the covered agreements) (Article 11 of the DSU).337
The DSU provides that the DSB must adopt a panel report no
earlier than twenty days, but no later than sixty days, after the date of
its circulation to the members338 unless a party to the dispute
334
A number of Appellate Body reports were circulated in just over ninety days (often
ninety-one days). Generally, this occurred when the ninetieth day fell on a weekend, and
the Appellate Body circulated its report the following Monday.
335
In most appeals where the Appellate Body had to exceed the ninety-day period due to the
scope, complexity, or number of appeals, that period was exceeded by one to three weeks.
The average length of the six appeals completed in 2016 was 145.5 days. As stated in the
letters to the chairperson of the DSB by the presiding member in each of these appeals,
the length of these appeals was a function of, inter alia, the overlap in composition of
the divisions hearing the appeals, scheduling issues arising from these circumstances, the
number and complexity of the issues raised in the concurrent appellate proceedings, the
shortage of staff in the Appellate Body Secretariat, the demands placed on translation
services, and the limited availability of Spanish-speaking staff for those appeals utilizing
documents in Spanish. See, for example, Communications from the Appellate Body, Colom-
bia – Textiles, WT/DS461/7, 29 March 2016; EU – Biodiesel, WT/DS473/12, 26 July 2016.
336
We refer to cases commonly known as the Boeing and Airbus cases: US – Large Civil
Aircraft (2nd complaint), and EC and certain member States – Large Civil Aircraft. To
date, the longest appellate proceeding has been US – Large Civil Aircraft (2nd complaint),
which took 346 days. The EC and certain member States – Large Civil Aircraft appeal
followed closely with 301 days.
337
See page 84.
338
If a meeting of the DSB is not normally scheduled within this period in order to permit
the adoption of the report within the relevant deadlines, a meeting of the DSB must be
held for that purpose (fn. 7 to Article 16.4 of the DSU).
formally notifies the DSB of its decision to appeal or the DSB decides
by consensus not to adopt the report (Article 16.4 of the DSU).339 In
disputes regarding prohibited or actionable subsidies, special rules
apply and the DSB must adopt the panel report within thirty days
of its circulation to all members, unless it decides by consensus not to
adopt it, or unless one of the parties notifies the DSB of its decision to
appeal (Articles 4.8 and 7.6 of the SCM Agreement). In recent times,
parties have sometimes jointly requested the DSB to extend the
period for appeal in order to provide greater flexibility in the sched-
uling of appeals in light of the heavy workload of the Appellate
Body.340
When a party notifies its decision to appeal within the deadline, the
panel report cannot yet be adopted, given that the Appellate Body could
modify or reverse it. In that case, the panel report will be considered for
adoption by the DSB only after completion of the appeal and together
with the Appellate Body report (Article 16.4 of the DSU).
If there is no appeal by either party, the DSB is obliged to adopt the
report, unless there is a so-called negative or reverse consensus, i.e. a
consensus in the DSB against the adoption. After the establishment of the
panel, this is the second key instance in which the decision-making rule
of reverse consensus applies in the WTO dispute settlement system.341
339
The negative (or reverse) consensus rule does not apply to panel reports where there is a
finding of nullification or impairment in respect of a situation complaint pursuant to
Article XXIII(1)(c) of the GATT 1994. Pursuant to Article 26.2 of the DSU, in such
cases, DSU procedures apply only up to the circulation of the panel report to the
members. Instead, the Decision of 12 April 1989 (BISD 36S/61–67) applies to consider-
ation for adoption, and surveillance and implementation of recommendations and
rulings. In practice, this means that normal consensus applies and that the panel report
will only be adopted if the respondent does not oppose it. Panel Report, US – Gambling
(Article 21.5 – Antigua and Barbuda), fn. 68.
340
See, for instance, the joint communications submitted to the DSB by the parties in US –
COOL, EC – Fasteners (China), US – Clove Cigarettes, India – Agricultural Products,
China – HP-SSST (Japan)/China – HP-SSST (European Union), and Peru – Agricultural
Products, respectively. Joint Request by Mexico and the United States for a Decision by
the DSB, WT/DS381/9, 1 November 2011; Joint Request by the European Union and
China for a Decision by the DSB, WT/DS397/6, 13 January 2011; Joint Request by
Indonesia and the United States for a Decision by the DSB, WT/DS406/5, 16 September
2011; Joint Request by India and the United States for a Decision by the DSB, WT/
DS430/7, 7 November 2014; Joint Request by Peru and Guatemala for a Decision by the
DSB, WT/DS457/6, 5 December 2014; Joint Request by China and Japan for a Decision
by the DSB, WT/DS454/6, 13 March 2015; Joint Request by China and the European
Union for a Decision by the DSB, WT/DS460/6, 13 March 2015.
341
See the section concerning the DSB on page 24.
A single member, typically the party having lost at the panel stage, cannot
therefore do much to prevent the adoption. One member opposing the
adoption of the report is not sufficient, nor is a majority; instead, what
would be needed to reject (or not to adopt) the panel report is a consen-
sus against adoption by all members represented at the relevant DSB
meeting. Normally, at least one party has an interest in the adoption
because, overall, it prevailed. The adoption of panel reports is in practice
“quasi-automatic” (unless one of the parties appeals). The prospect of
rejection is more theoretical than real and has never occurred in WTO
dispute settlement to date.
To be adopted by the DSB, a panel report (which has not been
appealed) must be placed on the agenda of a DSB meeting. Only WTO
members may request that items be placed on the agenda of an upcoming
DSB meeting; the Secretariat cannot do so.342 If no member requests that
a panel report be placed on the DSB agenda for adoption, the adoption
does not take place, even though, arguably, this does not respect Article
16.4 of the DSU. To date, only once has a panel report not been adopted
for this reason (and because of an intervening settlement between the
parties).343
An Appellate Body report, like a panel report, must be placed on the
agenda of the DSB for adoption. The DSB must then adopt, and the
parties must unconditionally accept, the Appellate Body report unless
the DSB decides by consensus not to adopt it within thirty days
following its circulation to members.344 While the deadline for adop-
tion of an Appellate Body report is only thirty days, the SCM Agree-
ment provides for a shorter adoption deadline of twenty days in
disputes on prohibited and actionable subsidies (Articles 4.9 and 7.7
of the SCM Agreement).
The DSU does not provide for any minimum period to precede the
adoption of an Appellate Body report (although in practice ten days are
required to place the item on the agenda of a DSB meeting for adoption).
Article 17.14 of the DSU also specifically provides that the parties to the
dispute must accept the Appellate Body report “unconditionally”, i.e.
accept it as resolution of their dispute without further appeal.
342
See the section on the functioning of the DSB and the rules on including items on its
agenda on page 24.
343
Panel Report, EC – Bananas III (Article 21.5 – EC).
344
If a meeting of the DSB is not scheduled during this period, such a meeting must be held
to discuss and adopt the report (fn. 8 to Article 17.14 of the DSU).
Although Article 17.14 of the DSU does not mention the panel report,
it is practice that the DSB adopts the Appellate Body report together with
the panel report, because the overall ruling is composed by reading the
Appellate Body report together with the panel findings that have not
been appealed or have been upheld on appeal. Furthermore, the DSU
also provides in Article 16.4 that, in the event of an appeal, the DSB will
only consider the panel report for adoption after completion of the
appeal. Thus, both reports are placed on the DSB agenda for adoption,
and the DSB adopts the Appellate Body report together with the panel
report, as upheld, modified or reversed by the Appellate Body report. To
the extent that the panel’s findings have not been reversed or modified, or
have not been appealed, they are binding on the parties. Note, however,
that a panel finding that has not been specifically appealed in a particular
dispute should not be considered to have been endorsed by the Appellate
Body,345 even if both reports are adopted simultaneously.
The adoption procedure is without prejudice to the right of members
to express their views on a given panel and Appellate Body report
(Articles 16.4 and 17.14 of the DSU). In the early days of the WTO
dispute settlement system, the chairperson of the DSB would ask whether
there was a consensus against the adoption of the report in question.
Nowadays, the DSB chairperson gives the floor to the parties to the
dispute and then to other WTO members to express their views. The
DSB chairperson then typically states that the DSB takes note of all
the statements and adopts the reports.
Legal Effect of Panel and Appellate Body Reports and DSB

Recommendations and Rulings
After the DSB adopts a panel report, and in case of appeal, the Appellate
Body report, the recommendations and rulings contained in those
reports become binding upon the parties to the dispute.346 Under Article
17.14, parties to a dispute must treat Appellate Body reports adopted by
the DSB “as a final resolution to that dispute”.347 Furthermore, a panel
finding that is not appealed, and that is included in a panel report
adopted by the DSB, must also be accepted by the parties as a final
resolution to the dispute between the parties, in the same way and with
345
Appellate Body Report, Canada – Periodicals, fn. 28 to para. 19.
346
347
Appellate Body Report, US – Shrimp (Article 21.5 – Malaysia), para. 97.
the same finality as a finding included in an Appellate Body report
adopted by the DSB.348
The reasoning and conclusions contained in adopted panel and Appel-
late Body reports may be relied upon by panels and the Appellate Body in
subsequent disputes.349 This is because adopted panel and Appellate
Body reports create legitimate expectations among WTO members and,
therefore, should be taken into account where they are relevant to any
dispute.350 Indeed, when enacting or modifying laws and national regu-
lations pertaining to international trade matters, WTO members “take
into account the legal interpretation of the covered agreements developed
in adopted panel and Appellate Body reports”.351 Thus, “the legal inter-
pretation embodied in adopted panel and Appellate Body reports
becomes part and parcel of the acquis of the WTO dispute settlement
system”.352 In light of the functions of the Appellate Body and panels set
out in the DSU, it is expected that panels would rely upon the findings
and reasoning of the Appellate Body in respect of legal matters before
them, especially where the issues are the same.353
348
The Appellate Body refers to Articles 16.4, 19.1, 21.1, 21.3 and 22.1 of the DSU, taken
together, as the legal basis for this conclusion. Appellate Body Report, EC – Bed Linen
(Article 21.5 – India), paras. 92–95.
349
350
Appellate Body Report, US – Shrimp (Article 21.5 – Malaysia), paras. 108–109.
351
352
353
5
Compliance with DSB Recommendations

and Rulings
Prompt Compliance
Where a violation complaint has been successful, the adoption of the
panel (and Appellate Body) report(s) by the DSB leads to a “recommen-
dation or ruling” of the DSB addressed to the respondent to bring its
measure(s) into compliance with the relevant covered agreement (Article
19.1 of the DSU).1
Article 21.2 of the DSU calls for prompt compliance with recommen-
dations or rulings of the DSB as essential in order to ensure effective
resolution of disputes to the benefit of all WTO members. The concept of
“compliance”, as well as that of “implementation”, has been interpreted
as the withdrawal2 or modification of the WTO-inconsistent measure, or
part of it.3 This means that a WTO member whose measure has been
found to be inconsistent with the covered agreements may generally
choose between two courses of action: either the withdrawal of the
measure, or the modification of the measure by remedial action. While
withdrawal may be the preferred option to secure “prompt compliance”,
this may be impracticable in some cases. The respondent may also
1
In the case of a successful non-violation complaint, the recommendation will be to find a
mutually satisfactory adjustment (Article 26 of the DSU). In the context of non-violation
complaints, the “ultimate goal is not the withdrawal of the measure concerned, but rather
achieving a mutually satisfactory adjustment, usually by means of compensation”. Appel-
late Body Report, India – Patents (US), para. 41 and fn. 29. In those cases where the WTO-
inconsistent measure has been taken by regional or local governments or authorities
within the territory of a member, the respondent must take such reasonable measures as
may be available to it to ensure its observance. Where it has not been possible to secure
such observance, the provisions relating to compensation and suspension of concessions
or other obligations apply. Understanding on the Interpretation of Article XXIV of the
GATT 1994, in respect of Article XXIV:12 of the GATT 1994.
2
Article 3.7 of the DSU provides that, in the absence of a mutually agreed solution, the first
objective of the dispute settlement mechanism is usually to secure the withdrawal of the
measures found to be inconsistent with WTO law.
3
Award of the Arbitrator, US – Offset Act (Byrd Amendment) (Article 21.3(c)), para. 49.
130
compliance with dsb recommendations and rulings 131
choose to modify the measure, provided that this is done in the shortest
time possible, and that such a modification is WTO-consistent.4 Where
immediate compliance is impracticable, the DSU foresees a reasonable
period of time (RPT) for the respondent to comply with the recommen-
dations and rulings of the DSB.
Where the measure found to be WTO-inconsistent is a prohibited
subsidy (Article 3 of the SCM Agreement), the requirement is to with-
draw the subsidy “without delay” (Article 4.7 of the SCM Agreement).5
The term “without delay” is not synonymous with instantaneous with-
drawal; rather, the DSU requires the panel to specify in its recommenda-
tion the time period in which the prohibited subsidy must be withdrawn
(Article 4.7 of the SCM Agreement). The other exception to the general
requirement to secure “prompt compliance” concerns actionable subsid-
ies. In the event that a subsidy is found to result in adverse effects, the
respondent has two options to come into compliance: either to take
appropriate steps to remove the adverse effects, or to withdraw the
subsidy (Article 7.8 of the SCM Agreement).6 The respondent must do
this within six months from the date when the DSB adopts the panel
report (and, where applicable, the Appellate Body report) (Article 7.9 of
the SCM Agreement).
Intentions in Respect of Implementation

The DSB is the WTO body responsible for supervising the implemen-
tation of the recommendations and rulings contained in adopted panel
and Appellate Body reports (Article 2 of the DSU). In this respect, it is
the duty of the respondent to inform the DSB, at a meeting within
thirty days after the adoption of the report(s), of its intentions with
respect to the implementation of the recommendations and rulings of
the DSB (Article 21.3 of the DSU). It is usually at that same meeting
that the respondent states whether it is able to comply immediately
with the relevant recommendations and rulings or needs an RPT to
do so.
4
Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)), para. 37.
5
The provisions of Article 21.3 of the DSU are not relevant in determining the RPT for
the implementation of a finding of inconsistency with the prohibited subsidies provi-
sions of Part II of the SCM Agreement. Appellate Body Report, Brazil – Aircraft,
para. 192.
6
Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 236.
Reasonable Period of Time for Implementation
If immediate compliance is impracticable, the respondent has an RPT7 to
achieve that compliance (Article 21.3 of the DSU). The RPT for comply-
ing with the recommendations and rulings of the DSB is therefore not
available unconditionally, but only if immediate compliance is impractic-
able.8 In practice, WTO members may explain that they cannot immedi-
ately comply with the DSB’s recommendations and rulings.9 The
respondent may need to amend its domestic law or regulations in order
to achieve implementation. Where legislative changes are required, such
changes may take more time than changes that merely require regulatory
action.
The RPT should not be understood as a time during which the respond-
ent is considered to be acting in accordance with its obligations under the
covered agreements.10 Rather, the RPT is a grace period11 granted to the
respondent for bringing its measures into compliance. During that period,
the respondent cannot yet be the target of countermeasures foreseen by
the DSU in the event of non-implementation.12 However, the respondent
needs to take steps towards compliance from the moment of adoption.13
Article 21.6 of the DSU stipulates that six months after the initiation of the
RPT, the respondent will start reporting to the membership at each DSB
meeting until full implementation is achieved or until the complainant
declares satisfaction, as discussed on page 152.
7
We refer to one RPT for implementation. Arbitrators have declined to state whether more
than one period may be awarded for bringing measures into compliance. See, for instance,
Award of the Arbitrator, US – Gambling (Article 21.3(c)), para. 41.
8
Award of the Arbitrator, Canada – Pharmaceutical Patents (Article 21.3(c)), para. 45.
9
In Dominican Republic – Safeguards, nonetheless, the respondent declared its intention to
comply with the DSB rulings and recommendations by terminating the measure at issue
and offered the date on which it would do so. The complainants approached the
respondent and agreed on a written confirmation of its intentions, which was circulated
to members in document WT/DS415-418/15.
10
In the event of a successful non-violation complaint, the member concerned (i.e. the
respondent) is in compliance with WTO law, but it nullifies or impairs benefits accruing
to the complainant.
11
The expression “grace period” has been used by past arbitrators. See, for instance, Award
of the Arbitrator, Korea – Alcoholic Beverages (Article 21.3(c)), para. 47.
12
Although it may still negotiate compensation with the complainant during the RPT.
13
Indeed, action or inaction by the respondent in the period of time comprised between the
date of adoption of the report(s) by the DSB and the initiation of arbitration proceedings
to determine the reasonable period of time for implementation, may be taken into
account by the arbitrator. See Award of the Arbitrator, Colombia – Ports of Entry (Article
21.3(c)), para. 79.
The DSU foresees three ways in which the RPT can be determined:
(i) it may be proposed by the respondent and approved by the DSB by
consensus (Article 21.3(a) of the DSU);14 (ii) it may be mutually agreed
by the parties to the dispute within forty-five days after adoption of the
report(s) (Article 21.3(b) of the DSU); or (iii) it may be determined by an
arbitrator (Article 21.3(c) of the DSU).
The first option – approval by the DSB – has so far never happened.
This is not surprising as the complainant(s) must also agree in order for
consensus to be reached and the parties’ discussions towards agreeing on
an RPT, if successful, would logically lead to the second option, i.e. an
agreement between the parties. Nowadays, parties often manage to reach
such an agreement.15
If neither of these first two avenues proves successful, the parties may
resort to arbitration under Article 21.3(c) of the DSU. This procedure is
initiated at the request of a party, addressed to the chairperson of the
DSB. The arbitrator can be an individual or a group of individuals.16 In
practice, all arbitrators in Article 21.3(c) proceedings thus far have been
current or former Appellate Body members. If the parties cannot agree
on the arbitrator(s) within ten days after referral of the matter to
arbitration, the Director-General appoints the arbitrator within another
ten days, after consulting the parties.17
The arbitrator’s task is limited to determining the RPT within which
implementation must be completed.18 Therefore, suggesting ways and
means of implementation, or assessing whether the steps proposed by
the respondent result in conformity with the relevant covered agree-
ments, is not part of the mandate of the arbitrator under Article 21.3(c)
of the DSU. Indeed, choosing the means of implementation is the
prerogative of the respondent.19 However, an arbitrator may need to
determine whether the respondent’s chosen method of implementation
is capable of placing it into compliance with its WTO obligations within
an RPT in accordance with the guidelines contained in Article 21.3(c)
14
Article 21.3(a) of the DSU does not specify the manner in which the DSB shall approve
the proposed time period. However, further to Article 2.4 of the DSU, the DSB is to take
that decision by consensus.
15
For instance, Philippines – Distilled Spirits; US – Clove Cigarettes; Canada – Renewable
Energy/Canada – Feed-in Tariff Program; Dominican Republic – Safeguard Measures;
US – Shrimp and Diamond Sawblades; and China – X-Ray Equipment.
16 17
Fn. 13 to Article 21 of the DSU. Fn. 12 to Article 21 of the DSU.
18
Award of the Arbitrator, EC – Hormones (Article 21.3(c)), para. 38.
19
Award of the Arbitrator, Korea – Alcoholic Beverages (Article 21.3(c)), para. 45.
of the DSU.20 In other words, “the means of implementation chosen
must be apt in form, nature, and content to effect compliance, and
should otherwise be consistent with the covered agreements”.21
Whether the chosen means achieve full conformity, if contested, may
ultimately be decided through recourse to the procedure in Article 21.5
of the DSU.22
The DSU provides, as a “guideline” for the arbitrator, that the RPT
should not exceed fifteen months from the date of adoption of the report(s)
(Article 21.3(c) of the DSU). However, this fifteen-month period is not an
average or standard period.23 Indeed, it may be shorter or longer,
depending on the “particular circumstances”.24 Reading this deadline in
the context of the requirement of “prompt compliance” of Article 21.1 of
the DSU, several arbitrators have held that the RPT should be the shortest
period possible within the legal system of the member to implement the
recommendations and rulings of the DSB.25 The intention is to accord the
respondent the time it truly needs under its normal procedures, making use
of any available flexibility,26 but “not having to utilize an extraordinary
legislative procedure”.27 Typically, implementation by administrative
means tends to imply a shorter period of time as compared to implemen-
tation by legislative action.28
20
See Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)), para. 27 (referring
to Award of the Arbitrator, EC – Export Subsidies on Sugar (Article 21.3(c)), para. 69).
21
Award of the Arbitrator, Colombia – Ports of Entry (Article 21.3(c)), para. 64.
22
Award of the Arbitrator, Canada – Pharmaceutical Patents (Article 21.3(c)), para. 42. See the
section on compliance proceedings on page 136. In non-violation complaints, Article 26.1(c)
of the DSU provides that the arbitrator acting under Article 21.3(c) “upon request of either
party, may include a determination of the level of benefits which have been nullified or
impaired, and may also suggest ways and means of reaching a mutually satisfactory adjust-
ment; such suggestions shall not be binding upon the parties to the dispute”.
23
Award of the Arbitrator, EC – Hormones (Article 21.3(c)), para. 25.
24
Award of the Arbitrator, Canada – Pharmaceutical Patents (Article 21.3(c)), para. 45.
25
Awards of the Arbitrator, Indonesia – Autos (Article 21.3(c)), para. 22; Korea – Alcoholic
Beverages (Article 21.3(c)), para. 37; Chile – Alcoholic Beverages (Article 21.3(c)), para. 38;
Canada – Pharmaceutical Patents (Article 21.3(c)), para. 47; US – 1916 Act (Article 21.3(c)),
para. 32; Chile – Price Band System (Article 21.3(c)), para. 34; US – Offset Act (Byrd Amend-
ment) (Article 21.3(c)), para. 42; and EC – Tariff Preferences (Article 21.3(c)), para. 26.
26
For instance, Awards of the Arbitrator, Canada – Autos (Article 21.3(c)), para. 47; US –
Section 110(5) Copyright Act (Article 21.3(c)), para. 39; US – 1916 Act (Article 21.3(c)),
para. 39; Canada – Patent Term (Article 21.3(c)), para. 64; and Canada – Pharmaceutical
Patents (Article 21.3(c)), para. 63.
27
Award of the Arbitrator, Korea – Alcoholic Beverages (Article 21.3(c)), para. 42.
28
Awards of the Arbitrator, Canada – Pharmaceutical Patents (Article 21.3(c)), paras.
49–51; and US – Offset Act (Byrd Amendment) (Article 21.3(c)), para. 57.
The respondent bears the burden of showing that the duration of any
proposed period of implementation constitutes an RPT, and the longer
the proposed period of implementation, the greater this burden.29 The
complainant is also required to produce evidence where it argues that the
period of time requested by the respondent is not “reasonable”, and in
particular if it considers that a shorter period of time is warranted.30
The RPTs awarded by arbitrators to date have ranged from six
months to approximately fifteen months. These figures should be
viewed with caution, given that each RPT reflects the period of time a
WTO member needs to bring into conformity a specific measure in the
context of a given legal and administrative regime. In agreements
between parties pursuant to Article 21.3(b) of the DSU, the parties have
on occasion agreed on a longer time period. In one case, the RPT agreed
upon between the parties was twenty-four months.31 Furthermore, the
parties may agree on an extension of the RPT previously agreed upon or
even determined through arbitration. In this respect, the DSB, further
to the parties’ agreement, has from time to time approved the respond-
ent’s request to extend an RPT previously awarded through
arbitration.32
Article 21.3(c) of the DSU contemplates that an arbitration award be
issued within ninety days of the adoption of the panel (and Appellate
Body) report(s), but this time period is nearly always insufficient, not
least because the request for arbitration is often made at a late stage.33
Thus, the parties have mostly agreed to extend the deadline. Parties may
also ask the arbitrator to suspend the procedure or withdraw the request
for arbitration in view of a mutually agreed solution on the issue of
implementation.34
29
For instance, Awards of the Arbitrator, US – 1916 Act (Article 21.3(c)), para. 32; and
Canada – Pharmaceutical Patents (Article 21.3(c)), para. 47.
30
Award of the Arbitrator, Colombia – Ports of Entry (Article 21.3(c)), para. 67.
31
Dominican Republic – Import and Sale of Cigarettes (WT/DS302/17).
32
For instance, the RPT was extended on several occasions in EC – Approval and Marketing
of Biotech Products (Canada) and EC – Approval and Marketing of Biotech Products
(Argentina).
33
Moreover, these arbitrations have developed from a succinct determination of one
paragraph in the first award (Award of the Arbitrator, Japan – Alcoholic Beverages II
(Article 21.3(c)), para. 27) to fully fledged legal discussions and a detailed reasoning in the
more recent awards, which makes more time necessary for deliberation, drafting and
translation. On average, Article 21.3(c) arbitrations take between four and five months to
be completed.
34
Award of the Arbitrator, US – Line Pipe (Article 21.3(c)), paras. 6–9.
The DSU provides that the period from the establishment of a panel
until the date of determination of the RPT should not exceed fifteen
months, unless the parties to the dispute agree otherwise. Where either
the panel or the Appellate Body has extended its deadline,35 the add-
itional time is to be added to the fifteen months, but should not exceed
eighteen months in total, unless the parties agree that there are excep-
tional circumstances (Article 21.4 of the DSU). In practice, the average
period from panel establishment to the determination of the RPT for
implementation is around twenty-two months.
Compliance Proceedings under Article 21.5 of the DSU

When there is disagreement between the parties to a dispute as to the
existence, or consistency with the covered agreements, of measures taken
by the respondent in a particular case, in order to comply with the
recommendations and rulings of the DSB, either party can request
establishment of a panel under Article 21.5 of the DSU.36 Such disagree-
ments can arise if, for instance, a new regulation or law has been passed
and the original respondent believes that this achieves full compliance,
but the complainant(s) disagrees. This procedure is often referred to as
“compliance” proceedings and seeks to promote the prompt resolution of
disputes. Indeed, compliance proceedings are aimed at avoiding a situ-
ation in which a complainant is forced to initiate dispute settlement
proceedings afresh when the respondent has failed to comply with the
recommendations and rulings of the DSB.37
Article 21.5 of the DSU provides that the disagreement between the
parties to a dispute as to the existence or WTO-consistency of measures
taken to comply, is to be solved “through recourse to these dispute
35
See pages 76 (for extension of panel proceedings) and 112 (for extension of the period of
appeal).
36
On the grounds that Article 21.5 does not specify which party may initiate the proceedings,
in US – Continued Suspension, the Appellate Body confirmed that both complainant(s) and
respondent can have recourse to Article 21.5 compliance panel proceedings. In this case, the
European Communities had initiated a new dispute against retaliation measures imposed
by the United States and Canada further to DSB authorization in the EC – Hormones
disputes. The European Communities was of the view that those measures were WTO-
inconsistent because it had already complied with the DSB rulings and recommendations.
The Appellate Body found that the appropriate proceedings to review this situation were
those in Article 21.5 of the DSU. Appellate Body Report, US – Continued Suspension,
para. 310.
37
Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 72.
settlement procedures”, including, wherever possible, recourse to the
original panel. This reference to “these dispute settlement procedures”
has been interpreted in practice as a reference to the DSU rules and
procedures governing original disputes, while respecting the specific time
limits and referral to the original panel, where possible. Nonetheless, the
DSU does not specifically stipulate, for example, whether consultations
are required before compliance panel proceedings.38 Additionally, the
DSU is silent as to whether a member must first bring a compliance
procedure under Article 21.5 before requesting suspension of concessions
or other obligations under Article 22 of the DSU.39 In practice, parties
often conclude an ad hoc agreement on the sequence of the procedures
under Articles 21 and 22 of the DSU (known as a “sequencing agree-
ment”).40 Such agreements often foresee the possibility of holding con-
sultations before requesting the establishment of a compliance panel.
These procedural agreements also usually include arrangements concern-
ing the various stages of Article 21.5 compliance proceedings more
generally, such as, for instance, the agreement of the parties to accept
the establishment of the compliance panel at the first meeting of the DSB
where the request is included in the agenda.41
A compliance panel is expected to rule in an expedited fashion,
normally within ninety days (Article 21.5 of the DSU). The timetable
in compliance panel proceedings therefore differs somewhat from that in
original panel proceedings, reflecting the fact that these proceedings are
expected to be completed in a shorter time frame. Compliance panel
proceedings usually involve only one substantive meeting, which takes
place after the parties have exchanged two sets of written submissions.
Either party may appeal a compliance panel report to the Appellate Body.
38
In the context of the DSU negotiations, there has been some discussion around the role of
consultations in compliance panel proceedings. In this context, it has been proposed to
clarify, in Article 21.5 of the DSU, that compliance procedures do not require the
complainant to request consultations before requesting the establishment of the panel;
however, consultations would remain possible (TN/DS/25). See page 183 on the negoti-
ations.
39
Suspension of concessions and other obligations under Article 22 is discussed on
page 141.
40
These agreements arose essentially from the need to tackle the “sequencing” problem
between compliance panel proceedings under Article 21.5 of the DSU and the suspension
of concessions and other obligations procedures under Article 22 of the DSU. See
page 151.
41
For instance, WT/DS46/13, paras. 1–2.
In respect of the measures that can be challenged, Article 21.5 pro-
ceedings have a more limited scope than original proceedings. Article
21.5 proceedings concern measures taken to comply with the recommen-
dations and rulings of the DSB.42 In case of disagreement as to whether a
given measure is within the scope of the Article 21.5 panel’s jurisdiction,
the panel may need to assess whether that measure has a “particularly
close relationship” with the declared “measure taken to comply” and the
recommendations and rulings of the DSB.43 The panel must make such
an assessment by looking at the timing, nature, and effects of the various
measures, as well as the factual and legal background against which the
declared “measure taken to comply” is adopted.44
In respect of the claims that can be raised in Article 21.5 proceedings, a
“measure taken to comply” with DSB recommendations and rulings is “a
new and different measure” that must be examined in its totality.45
Therefore, an Article 21.5 panel’s task is not limited to examining only
whether the implementing measure complies with the recommendations
and rulings adopted by the DSB in the original proceedings. An Article
21.5 panel must examine all claims of inconsistency regarding the new
measure, including claims that may be new and different from those
raised in respect of the original measure in the original proceedings.46
Importantly, there are certain limitations to the claims that can be
raised in Article 21.5 proceedings. In particular, a complainant is not
allowed to raise claims in compliance proceedings that were already
raised and dismissed in the original proceedings in respect of a compon-
ent of the implementation measure that is the same as in the original
measure.47 Thus, a complainant may not re-litigate a claim regarding
unchanged aspects of an original measure, nor may a complainant use
compliance claims to “re-open” issues decided in substance in the
42
Appellate Body Report, Canada – Aircraft (Article 21.5 – Brazil), para. 36.
43
See Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 77;
US – Zeroing (EC) (Article 21.5 – EC), para. 203.
44
See Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 77;
US – Zeroing (EC) (Article 21.5 – EC), para. 207.
45
See Appellate Body Report, US – Shrimp (Article 21.5 – Malaysia), paras. 86–87.
46
See Appellate Body Reports, Canada – Aircraft (Article 21.5 – Brazil), paras. 40–42; US –
FSC (Article 21.5 – EC), para. 222; EC – Bed Linen (Article 21.5 – India), para. 79.
47
See Appellate Body Reports, EC – Fasteners (China) (Article 21.5 – China), para. 5.15;
EC – Bed Linen (Article 21.5 – India), paras. 96 and 98; US – Shrimp (Article 21.5 –
Malaysia), paras. 90 and 96; US – Zeroing (EC) (Article 21.5 – EC), para. 432. See also
Appellate Body Reports, Mexico – Corn Syrup (Article 21.5 – US), para. 79; and US –
Upland Cotton (Article 21.5 – Brazil), para. 210.
original proceedings.48 The same claim with respect to an unchanged
element of the measure can be re-litigated in Article 21.5 proceedings if
the matter was raised but not resolved in the original proceedings.49
Aspects of the original measure can be challenged where the “measure
taken to comply” incorporates components of the original measure that
are unchanged, but are not separable from other aspects of the measure
taken to comply.50 Additionally, a complainant ordinarily may not raise
claims in Article 21.5 proceedings that it had the opportunity to pursue
in the original proceedings, but did not.51
Remedies in the Event of Non-implementation

If a respondent fails to bring its measure into conformity with its WTO
obligations within the RPT, the complainant is, under certain condi-
tions,52 entitled to resort to temporary measures, which can be either
compensation or the suspension of concessions or other obligations
(countermeasures), as discussed below. Neither of these temporary meas-
ures is preferred to full implementation of DSB recommendations and
rulings (Articles 3.7 and 22.1 of the DSU).
Compensation
If the respondent does not achieve full compliance by the end of the
RPT, it must enter into negotiations with the complainant, if the latter so
requests, with a view to agreeing to a mutually acceptable compensation
48
See Appellate Body Reports, US – Upland Cotton (Article 21.5 – Brazil), para. 210; EC –
Bed Linen (Article 21.5 – India), paras. 86, 93 and 96–98; US – Shrimp (Article 21.5 –
Malaysia), para. 96; and US – Zeroing (EC) (Article 21.5 – EC), para. 427.
49
See Appellate Body Reports, EC – Fasteners (China) (Article 21.5 – China), para. 5.15; and
US – Upland Cotton (Article 21.5 – Brazil), para. 210. Reasons for a claim not being
resolved include, for example, that the Appellate Body was not able to complete the
analysis, or that no findings were made on the claim as a result of the exercise of judicial
economy. See Appellate Body Reports, US – Upland Cotton (Article 21.5 – Brazil),
para. 210; US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina),
para. 148; and EC – Bed Linen (Article 21.5 – India), fn. 115 to para. 96.
50
See Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), para. 432.
51
See Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 211.
52
In practice, before the expiry of the RPT, parties typically agree to undertake compliance
panel proceedings under Article 21.5 of the DSU before or in parallel to suspension of
concessions proceedings under Article 22.6 of the DSU. See page 151 on sequencing.
Also, during the RPT, parties may start negotiations toward reaching an agreement on
compensation.
(Article 22.2 of the DSU). If there is no agreement on compensation
within twenty days from the expiry of the RPT, the complainant can
request the suspension of concessions, i.e. seek an authorization to
impose countermeasures (Article 22.2 of the DSU).
Compensation pursuant to Articles 21 and 22 of the DSU must be
WTO-consistent and mutually agreed. In practice to date, such com-
pensation has hardly been used in cases reaching this stage. Con-
formity with the covered agreements implies, among others,
consistency with the MFN obligations (Article I of the GATT 1994,
for example). Where relevant, this may imply that WTO members
other than the complainant(s) would also benefit, if compensation is
offered in the form of a measure to which such obligations apply,
such as a tariff reduction. This may make compensation less attract-
ive to both the respondent, as this raises the “price of compensation”,
and the complainant, as it does not get an exclusive benefit. These
obstacles could to some extent be overcome if the parties were to
select a trade benefit (for example, tariff reduction) in a sector of
particular export interest to the complainant and other members had
little export interest in that sector or product, or selected a WTO-
consistent form of compensation that did not involve such
obligations.
In a limited number of disputes, parties have agreed on temporary
monetary arrangements, which have been described as compensation.53
53
In US – Section 110(5) Copyright Act, where the United States was found to be in
violation of its TRIPS obligations, the parties agreed, in the context of a notified,
mutually satisfactory, temporary arrangement, that the United States would make a
lump-sum payment to a fund to be set up by performing rights societies in the
European Communities for the provision of general assistance to their members and
the promotion of authors’ rights. The amount of the payment was calculated through
arbitration proceedings pursuant to Article 25 of the DSU. Award of the Arbitrators,
US – Section 110(5) Copyright Act (Article 25). See page 175 on arbitrations under
Article 25 of the DSU. In US – Upland Cotton, after having gone through an Article 22.6
arbitration (suspension of concessions) and Brazil having obtained authorization from
the DSB to retaliate against the United States, the parties agreed on the constitution of a
Fund for Technical Assistance and Capacity Building related to the cotton sector in
Brazil and to international cooperation with other developing countries relating to
cotton production. The parties notified this understanding in the context of a frame-
work agreement, specifying that the content of their joint communication did not
constitute a mutually agreed solution putting an end to the dispute, and that while
the notified temporary solution would remain in place, no countermeasures would be
imposed.
Countermeasures (Suspension of Concessions and Other Obligations)
Purpose of Countermeasures under the DSU
If, within twenty days after the expiry of the RPT, the parties have not
agreed on satisfactory compensation, the complainant may ask the DSB
for permission to impose countermeasures against a respondent that
has failed to implement the DSB’s recommendations and rulings.
Technically, this is called “suspending concessions or other obligations
under the covered agreements” (Article 22.2 of the DSU). Suspension of
concessions or other obligations is the final and most serious conse-
quence that a non-implementing respondent faces in the WTO dispute
settlement system. Article 3.7 of the DSU provides that members should
have recourse to such countermeasures as a last resort. As with com-
pensation, the suspension of concessions or other obligations is a
temporary remedy, which does not replace compliance but rather
induces it.54 Therefore, countermeasures are not meant to be “punitive”
remedies.55 The issue of compliance thus remains on the agenda of the
DSB at the request of the complainant until it is resolved (Article 22.8 of
the DSU). Likewise, the countermeasures must be revoked once the
respondent has fully complied with the DSB’s recommendations and
rulings.56
Suspension of concessions, as opposed to that of “other obligations”,
is the most common form of countermeasures. Concessions are, for
example, tariff reduction commitments that WTO members have
made in multilateral trade negotiations and that are bound under
Article II of the GATT 1994. These bound concessions (also known
as “bindings”) are just one form of WTO obligation. In a few cases, for
instance, the complainant has obtained authorization to suspend obli-
gations under the TRIPS Agreement,57 the Agreement on Textiles and
54
Past arbitrators have consistently confirmed that the temporary nature of countermeas-
ures indicates that the purpose of countermeasures is to induce compliance. Arbitrators
have also considered that this does not mean that the DSB should grant authorization to
suspend concessions beyond what is equivalent to the level of nullification or impairment.
See for instance Decisions by the Arbitrators, EC – Bananas III (US) (Article 22.6 – EC),
para. 76; and Canada – Aircraft Credits and Guarantees (Article 22.6 – Canada),
para. 3.105.
55
See, for instance, Decisions by the Arbitrators, EC – Bananas III (US) (Article 22.6 – EC),
para. 6.3; and EC – Hormones (Article 22.6 – Canada), para. 39.
56
Appellate Body Report, US – Continued Suspension/Canada – Continued Suspension,
para. 355.
57
Decision by the Arbitrators, EC – Bananas III (Ecuador) (Article 22.6 – EC), para. 173.
Clothing and the Agreement on Import Licensing Procedures,58 or the
Anti-Dumping Agreement.59
The complainant is thus allowed to impose countermeasures that
would otherwise be inconsistent with the covered agreements, in
response to a violation or a non-violation nullification or impairment.
Countermeasures are applied selectively by the complainant against a
respondent that fails to comply fully, and are thus discriminatory in
nature.
Suspending obligations in response to an absence of timely implemen-
tation is problematic because it usually leads to the complainant respond-
ing to a (WTO-inconsistent) trade measure with another trade barrier,
which is contrary to the liberalization philosophy underlying the WTO.
Also, measures raising trade barriers come at a price because they are
almost always economically harmful, not only for a respondent that has
failed to comply, but also for a complainant imposing those barriers.
Indeed, import barriers tend to raise domestic prices for consumers and
may result in higher costs for intermediate inputs used by processing
industries in the territory of the complainant that is imposing the
countermeasures. This may lead to higher prices and lower exports
because products would be less competitive. Import barriers may also
act as a deterrent to foreign investment.
That said, it is important to stress that countermeasures are the last
resort in the WTO dispute settlement system and are not actually used in
most cases. In fact, authorization to impose countermeasures has been
requested and granted in just ten cases to date.60 It is thus the exception,
and not the rule, for a dispute to reach this stage and not be resolved at
an earlier stage through other means.
Procedure for the Authorization of Suspension of Concessions

or Other Obligations
Suspending WTO concessions or other obligations in relation to
another member requires prior authorization by the DSB. The DSU
provides that the DSB, upon request, shall grant authorization to
58
Decision by the Arbitrators, Brazil – Aircraft (Article 22.6 – Brazil), para. 4.1.
59
Decision by the Arbitrator, US – Offset Act (Byrd Amendment) (Article 22.6 – Canada),
para. 5.2.
60
EC – Bananas III; EC – Hormones; Brazil – Aircraft; US – FSC; Canada – Aircraft;
US – 1916 Act (EC); US – Offset Act (Byrd Amendment); US – Gambling; US – Upland
Cotton; and US – COOL.
suspend concessions or other obligations within thirty days of the
expiry of the RPT, unless the DSB decides otherwise by negative
consensus.61 However, if the respondent objects to the level of sus-
pension proposed, or claims that the principles and procedures set
forth in Article 22.3 (described in Chapter 6) have not been followed,
the matter will be referred to arbitration (Article 22.6 of the DSU)
and this arbitration will need to be completed before the DSB can
authorize the countermeasures.62 Referral to arbitration does not
require a specific action by the DSB for the matter to be properly
referred.63
Once the arbitrator has issued a decision, the complainant may again
submit a request to the DSB to suspend concessions or other obligations
consistent with the terms of the decision. The authorization will then be
granted by the DSB through negative or reverse consensus, which in
practice means automatically.64
Principles and Procedures Governing the Suspension of

Concessions or Other Obligations
When a complainant is considering whether to impose countermeasures,
there are two elements that it needs to consider: first, a quantitative
requirement, i.e. the level of suspension that can be authorized and,
second, a qualitative requirement, i.e. the type of countermeasures that
can be authorized (the obligations in a trade sector or an agreement that
can be suspended).
61
In practice, requests for authorization to suspend obligations are generally preceded by
compliance proceedings under Article 21.5, wherever there is a disagreement between the
parties as to whether the respondent has implemented the recommendations and rulings
of the DSB. See the section on the “sequencing” issue on page 151.
62
The obligation not to suspend concessions without prior DSB authorization is explicitly
stated in Articles 22.6 and 23.2(c) of the DSU. Suspending concessions without such prior
authorization also constitutes a breach of Article 3.7 of the DSU. Appellate Body Report,
US – Certain EC Products, para. 120.
63
The question of whether the DSB must take specific action when an objection to a
proposed level of suspension is notified in order to effect a referral to arbitration is a
contentious issue among members. While recognizing this, the arbitrator in US – COOL
(Article 22.6 – United States) found that there are contextual indications within the DSU
suggesting that referral to arbitration need not be performed by the DSB. Decisions by the
Arbitrator, US – COOL (Article 22.6 – United States), paras. 2.11 (referring to the DSB
meeting of 20 July 2015, WT/DSB/M/365), 2.12, 2.17–2.18.
64
This is the third key situation where the DSB decides by “negative” or “reverse” consen-
sus. See the section on the DSB on page 24.
Permissible Level of Suspension The level of suspension of conces-
sions or other obligations authorized by the DSB must be “equivalent” to
the level of nullification or impairment (Article 22.4 of the DSU). This
has been interpreted to mean that the complainant’s countermeasures
may not exceed the level of harm caused by the respondent’s original
inconsistent measure. The impact of the WTO-inconsistent measure (the
level of nullification or impairment) is generally calculated by comparing
the actual level of trade (trade occurring under the inconsistent measure)
with the hypothetical level of trade that would have occurred had the
WTO-inconsistent measures been brought into conformity by the end of
the RPT. This amount is generally calculated on an annual basis.
Permissible Sector of Countermeasures Regarding the type of conces-

sions or other obligations that may be suspended, the DSU calls for the
complainant to apply a number of principles and procedures when
considering what concessions or other obligations to suspend. The gen-
eral principle is that the countermeasures should be imposed in the same
sector and within the same agreement as that in which the violation or
other nullification or impairment was found (Article 22.3(a) of the DSU).
The DSU itself defines what a “sector” and an “agreement” are for the
purposes of this provision.65
The principle of “same-sector” countermeasures means that, for
example, the response to a violation in the area of patent rights should
also relate to patent rights. If the violation occurred in the area of
distribution services, then the countermeasure should also be in this
area. At the same time, a WTO-inconsistent tariff on automobiles
(a good) can be countered with a tariff surcharge on cheese, furniture
or pyjamas (also goods). For instance, in EC – Hormones (US/Canada),
the WTO-inconsistent ban on imports of bovine meat was countered by
Canada with tariff surcharges not only on meat products but also on a
number of other goods, including chocolate, vegetables, water and
65
For this purpose, the multilateral trade agreements are divided into three groups in
accordance with the three parts of Annex 1 to the WTO Agreement (Annex 1A
comprises the GATT 1994 and the other multilateral trade agreements on trade in goods,
Annex 1B the GATS, and Annex 1C the TRIPS Agreement) (Article 22.3(g) of the DSU).
Within these agreements, sectors are defined. With regard to TRIPS, the categories of
intellectual property rights and the obligations under Part III and those under Part IV of
the TRIPS Agreement each constitute separate sectors. In the GATS, each principal sector
as identified in the current “Services Sectoral Classification List” is a sector. With respect
to goods, all goods belong to the same sector (Article 22.3(f) of the DSU).
vodka.66 A prohibited subsidy can also be countered with a tariff
surcharge on goods since the SCM Agreement is an Annex 1A agree-
ment (an agreement that governs trade in goods). This was the case, for
example, in Brazil – Aircraft.67
However, if the complainant considers it impracticable or ineffective
to retaliate within the same sector, the countermeasures can be imposed
in a different sector under the same agreement (Article 22.3(b) of the
DSU).68 This option has no practical relevance in the area of goods
(because all goods are considered to belong to the same agreement and
sector), but, for example, a violation with regard to patents could be
answered with countermeasures in the area of trademarks (that is, in
another sector within the same agreement, in this case the TRIPS Agree-
ment). Similarly, a violation in the area of distribution services could be
countered in the area of health services.
In turn, if the complainant considers it impracticable or ineffective to
retaliate within the same agreement, and the circumstances are serious
enough, the countermeasures can be taken under another agreement
(Article 22.3(c) of the DSU).69 The objective of this hierarchy is to reduce
the chances that retaliatory actions spill over into unrelated sectors while
at the same time ensuring that the countermeasures taken are effective.
The possibility of “cross-retaliating” was awarded for the first time in
EC – Bananas III (Ecuador) (Article 22.6 – EC). In that case, although the
violations of WTO law occurred under the GATT 1994 and the GATS,
the arbitrator authorized Ecuador to cross-retaliate under the TRIPS
Agreement (copyright and related rights, geographical indications,
industrial designs) to the extent that countermeasures under the GATT
1994 and the GATS were insufficient to reach the required level of
nullification or impairment.70
66
Decision by the Arbitrators, EC – Hormones (Canada) (Article 22.6 – EC), Annex II.
67
Decision by the Arbitrator, Brazil – Aircraft (Article 22.6 – Brazil), para. 3.29.
68
Practicability and effectiveness have been measured, inter alia, in terms of the counter-
measure’s contribution to the objective of inducing compliance. Decision by the Arbitra-
tors, EC – Bananas III (Ecuador) (Article 22.6 – EC), para. 76.
69
Past arbitrators have assessed the circumstances related to the practicability and effect-
iveness of the suspension under the same agreement and defined the seriousness of such
circumstances in terms of the difficulty for the complainant to find a way of ensuring the
effectiveness of a suspension of concessions or other obligations. Decision by the Arbi-
trator, US – Gambling (Article 22.6 – US), para. 4.115; Decisions by the Arbitrator, US –
Upland Cotton (Article 22.6 – US I / US II), paras. 5.83 and 5.215.
70
Decision by the Arbitrators, EC – Bananas III (Ecuador) (Article 22.6 – EC), para. 173(d).
In US – Gambling, Antigua was also authorized to suspend concessions under the TRIPS
Particularly for smaller and developing country members, “cross
retaliation”, that is, the possibility of suspending obligations under a
different sector or different agreement, can be quite important for a
number of reasons. First, smaller and developing countries do not always
import goods and services or use intellectual property rights in sufficient
quantities and in the same sectors as those in which the violation or other
nullification or impairment took place. This may make it impossible to
suspend obligations at a level equivalent to that of the nullification or
impairment committed by the respondent, unless obligations can be
suspended in a different sector or under a different agreement.71 Second,
suspension in the same sector or under the same agreement would be
ineffective or impracticable when the bilateral trade relationship is asym-
metrical in that trade is relatively important for the complainant and
relatively unimportant for the respondent, particularly if the latter is a
large trading nation. In that case, the effects of the suspension of obliga-
tions and the imposition of retaliatory trade barriers might be hardly
perceptible for the respondent, while being detrimental to the retaliating
member’s own interests. Third, it might be economically unaffordable for
the complainant to impose retaliation against certain imports if this
would reduce the supply and/or increase the price of imports on which
the complainant’s producers and consumers might depend.72
Agreement for similar reasons. Decision by the Arbitrator, US – Gambling (Article 22.6 –
US), para. 6.1. In US – Upland Cotton, the arbitrator authorized Brazil to suspend
concessions under the multilateral trade agreements (MTAs) but allowed it to resort to
cross-retaliation under the TRIPS or the GATS if the level of nullification or impairment
were to surpass a given threshold. Decisions by the Arbitrator, US – Upland Cotton
(Article 22.6 – US I/US II), para. 6.5.
71
For instance, in US – Upland Cotton (Article 22.6 – US I / US II), the total amount of trade
available to be countered was too low and the countermeasure exceeded the total amount
of trade available to be countered in the same sector without prejudicing the complain-
ant’s own interests. Decisions by the Arbitrator, US – Upland Cotton (Article 22.6 – US I /
US II), para. 5.73.
72
In US – Gambling, Antigua and Barbuda requested approval to suspend its concessions in
intellectual property rights with respect to American copyrighted and trademarked
products under the TRIPS Agreement because it deemed suspending obligations in the
same sector and agreement where the initial violation had taken place (GATS, Recre-
ational, Cultural and Sporting Services) was impracticable and ineffective. Although
Antigua had made commitments in that sector, trade in this sector was negligible. In
addition, suspension in another sector under the GATS, where Antigua had undertaken
commitments (telecommunication services, for instance), was also found impracticable
and ineffective. This was not only due to the low volume of trade but also due to the
disruption that would be caused by changing services and suppliers and the resulting
increased cost to Antiguan consumers and a heavier burden on Antiguan citizens, while
In consideration of such factors, cross-retaliation has been requested
and authorized in some cases, in particular in the form of suspension of
obligations under the TRIPS Agreement.73
Arbitration under Article 22.6 of the DSU

The DSB must in principle grant the authorization to suspend conces-
sions or other obligations within thirty days of the expiry of the RPT by
negative consensus, unless the respondent disagrees with the complain-
ant’s proposed suspension. If the respondent objects to the proposed
level, which is typically the case, the matter shall be referred to arbitration
(Articles 22.6 and 22.7 of the DSU).74 Such disagreement can relate either
to (i) whether the level of retaliation is equivalent to the level of nullifi-
cation or impairment, and/or (ii) whether the principles governing the
form of permitted suspension are respected.75
If the original panelists are available, they will act as arbitrators;
otherwise the WTO Director-General appoints an arbitrator. Article
22.6 of the DSU also foresees that the arbitration will be completed
within sixty days after the date of expiry of the RPT. In practice, arbitra-
tions pursuant to Article 22.6 of the DSU usually begin long after the
expiry of the RPT, after completion of compliance proceedings under
Article 21.5 of the DSU (which includes adjudication by a panel and,
possibly, by the Appellate Body). The complainant must not proceed
with the suspension of obligations during the course of the arbitration
because the DSB may not discuss and authorize the suspension before
completion of the arbitration.
Article 22.6 arbitrations have some procedural specificities when com-
pared to other proceedings under the DSU. First, these arbitrations are
requested by a respondent that objects to the level or nature of the
complainant’s request for DSB authorization to suspend concessions or
having no perceptible impact on the United States. Finally, the arbitrator found the
circumstances to be serious enough to authorize suspension under another agreement
because of the great imbalance in terms of trade volume and economic power that existed
between Antigua and the United States. Decision by the Arbitrator, US – Gambling
(Article 22.6 – US).
73
See, for example, Decisions by the Arbitrators, EC – Bananas III (Ecuador) (Article 22.6 –
EC); US – Gambling (Article 22.6 – US); US – Cotton (Article 22.6 – Brazil).
74
See Decisions by the Arbitrator, US – COOL (Article 22.6 – United States), paras.
2.11–2.18.
75
See the section on the principles and procedures governing the suspension of concessions
or other obligations on page 143.
other obligations. Second, arbitrators have developed the practice of
asking the complainant to file, at the outset of the proceedings, a meth-
odology paper. In that written communication, the complainant explains
the proposed suspension it requested to the DSB under Article 22.2 of the
DSU. In addition, Article 22.6 arbitrations, as with Article 21.5 compli-
ance panel proceedings,76 follow an approach of double-briefing before
the hearing, i.e. two rounds of written communications occur prior to the
oral hearing, though there may also be only a single oral hearing. Third-
party rights in an Article 22.6 arbitration are not contemplated in the
DSU, and arbitrators have denied requests for third-party status on the
grounds that the party making the request could not show that their
rights were adversely affected through their inability to participate in the
proceedings.77
The arbitrator’s mandate in this type of proceedings is to determine
whether the level of the proposed suspension of concessions is equivalent
to the level of nullification or impairment and, where this is challenged,
whether the rules and procedures concerning the permissible sector or
agreement for cross-retaliation have been followed.78 In order to assess
whether the level of proposed suspension is consistent with the require-
ments of the DSU, the arbitrator will generally determine whether it
correctly reflects the approximate value of the actual and potential trade
opportunities lost as a result of the measure found to be WTO-
inconsistent or otherwise to nullify or impair benefits.79 If this is not
so, the arbitrator may need to calculate what would constitute a level of
suspension equivalent to the level of nullification or impairment. How
76
See the section on compliance proceedings pursuant to Article 21.5 of the DSU on
page 136.
77
See Decisions by the Arbitrator, US – COOL (Article 22.6 – United States), para. 2.20
(referring to Decisions by the Arbitrators, EC – Bananas III (US) (Article 22.6 – EC), para. 2.8;
Brazil – Aircraft (Article 22.6 – Brazil), para. 2.5; US – Gambling (Article 22.6 – US),
para. 2.31). However, in certain situations arbitrators have authorized certain participatory
rights by members not directly involved in the arbitration. See Decisions by the Arbitrator,
US – COOL (Article 22.6 – United States), para. 2.20; EC – Hormones (Canada) (Article 22.6 –
EC), para. 7; and EC – Hormones (US) (Article 22.6 – EC), para. 7.
78
See Decisions by the Arbitrator, US – COOL (Article 22.6 – United States), paras. 4.1–4.6.
79
In limited circumstances, arbitrators have measured nullification or impairment in terms
other than mere trade effects. See, for instance, Decision by the Arbitrators, US – 1916 Act
(EC) (Article 22.6 – US), para. 7.7; Award of the Arbitrators, US – Section 110(5)
Copyright Act (Article 25), para. 3.18. In US – COOL (Article 22.6 – United States), the
arbitrator decided that the term “nullification or impairment of benefits” did not include
“domestic price suppression” in the domestic markets of the complainants. See Decision
by the Arbitrators, US – COOL (Article 22.6 – United States), paras. 5.1–5.27.
this is calculated varies from case to case. Some arbitrators have
developed their own appropriate methodologies,80 which were either
based on elements of the methodologies initially proposed by the
parties81 or followed an altogether different approach.82 If there is a
claim that the principles and procedures for cross-retaliation (Article
22.3 of the DSU)83 have not been followed, the arbitrator also examines
that claim (Article 22.7 of the DSU). However, the arbitrator is precluded
from examining the nature of the concessions or other obligations to be
suspended. In practice, aspects such as the choice of the products to be
targeted or the level of the additional duty, are left to the discretion of the
retaliating member.84
The parties must accept the decision of the arbitrator as final and not
seek a second arbitration (Article 22.7 of the DSU). The DSB is
informed promptly of the outcome of the arbitration. Once the decision
is issued, the complainant may request the DSB to grant authorization
to suspend concessions or other obligations.85 The DSB will do so by
negative or reverse consensus provided that the request is consistent
with the decision of the arbitrator (Article 22.7 of the DSU). In that
regard, the decision of the arbitrator can be distinguished from panel
and Appellate Body rulings insofar as it does not have to be adopted by
the DSB.
Having obtained authorization from the DSB86 to suspend concessions
or other obligations does not mean that the complainant is obliged to
implement it. Indeed, a complainant may choose not to proceed with the
suspension but rather to use the authorization as a bargaining tool with
80
See Decisions by the Arbitrator, US – Offset Act (Byrd Amendment) (Mexico) (Article
22.6 – US), para. 3.13; and US – COOL (Article 22.6 – United States), para. 4.5.
81
See for instance, Decisions by the Arbitrator, US – Gambling (Article 22.6 – US),
para. 3.174; and US – COOL (Article 22.6 – United States), paras. 6.27–6.33.
82
Decision by the Arbitrator, US – Offset Act (Byrd Amendment) (Mexico) (Article 22.6 –
US), paras. 3.69–3.79.
83
See the section on the principles and procedures governing the suspension of concessions
or other obligations on page 143.
84
Decision by the Arbitrators, EC – Hormones (US) (Article 22.6 – EC), para. 19.
85
Notably, complainants are not obliged to request the authorization to suspend conces-
sions or other obligations further to the decision of the arbitrator. In fact, there have been
cases where the complainants decided not to do so, such as US – 1916 Act (EC) and US –
Gambling.
86
Up to 1 December 2016, the DSB has granted authorization to suspend concessions in ten
disputes, namely, EC – Bananas III; EC – Hormones; Brazil – Aircraft; US – FSC;
Canada – Aircraft; US – 1916 Act; US – Offset Act (Byrd Amendment); US – Gambling;
US – Upland Cotton; and US – COOL.
the respondent.87 Once the authorization has been granted, the author-
ized member must ensure that it respects the requirement of equivalence
in its application of any retaliation measures pursuant to the
authorization.88
Special Rules on Countermeasures for Prohibited and

Actionable Subsidies under the SCM Agreement
Special rules exist in the SCM Agreement with respect to the counter-
measures that can be authorized in respect of prohibited and actionable
subsidies.89
In the area of prohibited subsidies, if the respondent has not followed
the DSB’s recommendation within the time period specified by the panel
for the withdrawal of the subsidy, the DSB grants authorization to the
complainant to take “appropriate countermeasures”, unless there is a
negative consensus against it (Article 4.10 of the SCM Agreement). In
that context, the arbitrator under Article 22.6 of the DSU is mandated to
determine whether the proposed countermeasures are appropriate (Art-
icle 4.11 of the SCM Agreement). In practice, the standard of “appropri-
ateness” has been found to permit countermeasures that may be higher
rather than strictly “equivalent” to the level of nullification or impair-
ment caused by the prohibited subsidy.90
In respect of actionable subsidies, if the respondent has not followed
the DSB’s recommendation to withdraw the subsidy or remove its
adverse effects within six months from the adoption of the report(s),
the complainant is entitled to request authorization to impose “counter-
measures commensurate with the degree and nature of the adverse effects
87
For instance, in the Canada – Aircraft Credits and Guarantees and Brazil – Aircraft
disputes, the parties to both disputes, Brazil and Canada, did not suspend concessions
against each other in spite of having obtained authorization to suspend concessions
amounting to US$ 247,797,000 and CAN$ 344.2 million, respectively.
88
See, for example, Decision by the Arbitrators, EC – Bananas III (Ecuador) (Article 22.6 –
EC), paras. 80–84.
89
Except for any conflict between them, these special and additional rules of the SCM
Agreement and the provisions of the DSU governing the suspension of concessions or
other obligations must be read together so as to give meaning to both of them. Decision
by the Arbitrator, Brazil – Aircraft (Article 22.6 – Brazil), para. 3.57.
90
While the expression “appropriate countermeasures” allows a degree of flexibility in
assessing what may be “appropriate” in the circumstances of a given case, this flexibility
is not unbounded. Decision by the Arbitrator, US – FSC (Article 22.6), paras. 5.11–5.12.
See also Decisions by the Arbitrator, US – Upland Cotton (Article 22.6 – US I / US II),
paras. 4.85–4.86.
determined to exist” (Article 7.9 of the SCM Agreement). In the event
that the respondent disagrees on the requested countermeasures, it may
request arbitration pursuant to Article 22.6 of the DSU in which case the
arbitrator shall determine whether the countermeasures are commensur-
ate with the degree and nature of the adverse effects (Article 7.10 of the
SCM Agreement).91
The “Sequencing” Issue

One of the contentious issues arising in the implementation stage of the
dispute settlement system is the relationship between Articles 21.5 and
22.2 of the DSU. The issue is which of the two procedures, if either, has
priority: the compliance proceedings under Article 21.5 of the DSU, or
access to remedies under Article 22 of the DSU. Article 22.6 of the DSU
mandates the DSB to grant the authorization to suspend obligations within
thirty days of the expiry of the RPT (if there is no negative or reverse
consensus). A possible arbitration on the level or form of retaliation must
conclude within sixty days after the expiry of the RPT. This time is not
sufficient to complete the compliance review proceedings under Article
21.5 of the DSU (ninety days for panel proceedings, plus a possible
appeal). At the same time, Article 21.5 of the DSU mandates recourse to
compliance proceedings if there is a disagreement on whether full compli-
ance has been achieved, and Article 23 of the DSU prohibits WTO
members from deciding unilaterally whether a measure is inconsistent
with the covered agreements or whether it nullifies or impairs benefits.92
This conflict came to a head in the first case to reach the compliance
stage of the proceedings, the EC – Bananas III dispute. In subsequent
cases, the parties have frequently reached an ad hoc agreement on the
sequencing of procedures under Articles 21.5 and 22. In some cases, the
parties have agreed to initiate the procedures under Articles 21.5 and
22 simultaneously and then to suspend the retaliation procedures under
Article 22 (the DSB authorization and the Article 22.6 arbitration) until
the completion of the Article 21.5 procedure.93 In other cases, the parties
have agreed to initiate the procedures under Article 21.5 before resorting
91
Decision by the Arbitrators, US – Upland Cotton (Article 22.6 – US II), paras. 4.8 and
4.16.
92
See the section on the prohibition against unilateral determinations on page 15.
93
See, for instance, the ad hoc agreements reached by the parties in Canada – Dairy (WT/
DS103/14); or US – FSC (WT/DS108/12).
to the retaliation procedures under Article 22, with the understanding
that, once the compliance proceedings are complete, the respondent
would not object to a request for authorization of suspension of conces-
sions under Article 22.6 of the DSU because of the expiry of the thirty-
day deadline for the DSB to grant this authorization.94
Members are looking into finding a permanent solution to this issue
within the framework of the ongoing negotiations for the improvement
of the DSU.95
Multilateral Surveillance by the DSB Pending Full

Implementation or Satisfaction
One of the functions of the DSB is the surveillance of the implementation
by the respondent of its recommendations and rulings (Article 21.6 of the
DSU).96 Unless the DSB decides otherwise by consensus, the issue of
implementation is placed on the agenda of the DSB six months following
the date of establishment of the RPT.97 We note that any member can
raise the issue of implementation at any time in the DSB following the
adoption of the report(s), but there is no obligation to have the matter on
the agenda of the DSB before six months following the establishment of
that period. The item then remains on the DSB’s agenda until the issue is
resolved.98
At least ten days before each monthly DSB meeting, the respondent is
required to provide the DSB with a written status report of its progress in
94
See, for instance, the ad hoc agreements reached by the parties in Brazil – Aircraft (WT/
DS46/13), Canada – Aircraft (WT/DS70/9), EC – Bed Linen (WT/DS141/11), EC –
Export Subsidies on Sugar (WT/DS283/17), or US – Anti-Dumping Measures on Oil
Country Tubular Goods (WT/DS282/12).
95
On the negotiations, see page 183.
96
One could argue that the function of surveillance already commences when the member
concerned (i.e. the respondent) informs the DSB of its intentions in respect of imple-
mentation at a DSB meeting to be held within thirty days of the adoption of the report(s)
pursuant to Article 21.1 of the DSU.
97
The date of “establishment” refers to the date on which the duration of the RPT is
determined, not the date on which the RPT expires. Therefore, this date will coincide with
one of the following dates depending on the procedural avenue chosen for the determin-
ation of the RPT: (i) the date on which the DSB adopts the period of time proposed by the
respondent (Article 21.3(a) of the DSU); (ii) the date on which the parties notify their
agreement regarding the RPT (Article 21.3(b) of the DSU); or (iii) the date on which the
arbitrator’s award under Article 21.3(c) of the DSU is circulated.
98
For example, the EC – Bananas III dispute was on the DSB agenda for years and opened
every regular DSB meeting.
the implementation.99 These status reports ensure transparency, and they
may also act as an incentive towards implementation. When the
respondent delivers these status reports in the DSB, it is common for
other members, particularly the complainant(s), to take the opportunity
to request full and expeditious implementation and to declare that they
are following the matter with close attention.100
When the matter is raised by a developing country, the DSB will
consider the possible course of action appropriate in the circum-
stances.101 Furthermore, if the case is brought by a developing country
member, in considering what appropriate action might be taken, the DSB
must take into account not only the trade coverage of the measures
complained of, but also their impact on the economy of the concerned
developing country member.102
The DSB’s duty to keep the implementation of its rulings and recom-
mendations under surveillance until the issue is resolved implies that
such monitoring continues until the respondent has brought its measures
into conformity or the complainant has declared satisfaction. Therefore,
in cases where compensation has been agreed upon or countermeasures
imposed, but there is still no compliance, the DSB continues to monitor
the implementation of its recommendations and rulings (Article 22.8 of
the DSU). In practice, the DSB surveillance stops, sometimes temporar-
ily, when the complainant does not request the matter to be included on
the agenda of the DSB.
Special Procedures for Non-violation and Situation Complaints

Non-violation Complaints
Although the procedures explained in this chapter, including on imple-
mentation, also apply to non-violation complaints, there are several par-
ticularities in the non-violation complaints process that deserve attention.
Provisions that contain an explicit reference to a measure found inconsist-
ent with the covered agreements, without also referring to nullification or
impairment of benefits caused by WTO-consistent measures, are not
relevant to non-violation complaints. In addition, Article 26.1 of the
99
These status reports are published within the WT/DS series of the dispute concerned.
100
The summary of these discussions can be found in the minutes of the DSB meeting at
issue (WT/DSB/M/##).
101 102
Article 21.7 of the DSU. Article 21.8 of the DSU.
DSU contains several special provisions applicable only to non-violation
complaints. While these special features have already been referred to in
the relevant context, their most important aspects are summarized below.
– There is no obligation to withdraw a measure found to nullify or impair
benefits or to impede the attainment of an objective if it has not been
found inconsistent with a covered agreement.
– The panel (and the Appellate Body) accordingly recommends that the
member concerned (i.e. the respondent) makes a mutually satisfactory
adjustment.
– The arbitration under Article 21.3(c) of the DSU on the RPT may,
upon request by either party, include a determination of the level of
benefits that have been nullified or impaired, and may also suggest
ways and means of reaching a mutually satisfactory adjustment,
although such suggestions are not binding upon the parties.
– Compensation may be part of a mutually satisfactory adjustment as
final settlement of the dispute. Under the general rules, compensation
is only temporary pending final implementation. However, in non-
violation cases, where withdrawal of the measure is not required, a
satisfactory adjustment could take the form of compensation.
Situation Complaints
103
Situation complaints are quite different in that the general procedures
of the DSU apply only up to the point of the circulation of the panel
report (Article 26.2 of the DSU). The dispute settlement rules and
procedures contained in the Decision of 12 April 1989104 apply to
consideration for adoption, surveillance and implementation of recom-
mendations and rulings. This means that the negative or reverse consen-
sus rule does not apply to the adoption of the panel report and to the
authorization of the suspension of obligations in the event of a failure to
implement. In other words, any member can block these decisions in the
DSB by objecting to the adoption of the report.
In addition, if a panel finds that the complainant has successfully
proved its case with respect to a situation complaint, even if it is
coupled with a simultaneous violation or non-violation complaint, the
panel must address the situation complaint in a separate panel report
(Article 26.2(b) of the DSU).
103 104
See the section on types of complaints on page 47. BISD 36S/61–67.
6
Other Procedural Issues Arising in WTO Dispute

Settlement Proceedings
Preliminary Rulings
Preliminary ruling requests have become a common feature in WTO
dispute settlement proceedings. Unlike other jurisdictions,1 the WTO
dispute settlement system does not provide rules on how to deal with
parties’ requests for an early ruling by the adjudicator on certain issues of
procedural or jurisdictional nature. Over the years, parties have neverthe-
less requested panels and the Appellate Body to issue “preliminary
rulings”2 on a number of issues. The most frequent subject is the consist-
ency of a panel request with Article 6.2 of the DSU.3 Other issues include,
for instance, the adequacy of consultations,4 jurisdictional issues,5 matters
1
See, for instance, Article 79 (“Preliminary Objections”) of the Rules of Court of the ICJ.
2
Decisions made by panels and the Appellate Body in advance of their final reports are not
always referred to as “preliminary rulings”. This is a concept that has been developed in
practice. For instance, panels and the Appellate Body have referred to their early decisions
on enhanced third-party rights, procedures for confidential information (Panel Report,
Australia – Salmon (Article 21.5 – Canada), paras. 7.5 and 7.7) or the presence of private
lawyers in the hearing (Appellate Body Report, EC – Bananas III, para. 10) simply as
“rulings”. In addition, parties have used different terminology in the past, such as a request
for “immediate rulings” (Panel Report, Australia – Salmon (Article 21.5 – Canada),
para. 7.10) or the raising of a “preliminary objection” (Panel Report, Indonesia – Autos,
para. 14.3).
3
See, for instance, Appellate Body Reports, US – Countervailing and Anti-Dumping Meas-
ures (China), paras. 4.5–4.52; US – Countervailing Measures (China), paras. 4.1–4.28; and
Argentina – Import Measures, paras. 5.1–5.91. See also Panel Reports, US – Countervailing
and Anti-Dumping Measures (China), paras. 1.9–1.10, 6.5–6.6, and 7.1–7.5; US – Carbon
Steel (India), paras. 1.10–1.43; US – Countervailing Measures (China), paras. 1.14–1.16 and
6.6–6.8; Argentina – Import Measures, paras. 1.32–1.36, 6.11–6.24, and Annex D; India –
Agricultural Products, paras. 1.14–1.16, 1.17–1.19 and 7.5–7.105; and EU – Biodiesel,
paras. 1.10–1.11 and 7.9–7.65.
4
See Appellate Body Reports, US – Cotton Subsidies, paras. 278–294; US – Continued
Zeroing, paras. 213–241; and Argentina – Import Measures, paras. 5.1–5.31.
5
See, for instance, Appellate Body Reports, Mexico – Taxes on Soft Drinks, paras. 40–57;
Mexico – HFCS (Article 21.5 – United States), para. 36; US – Offset Act (Byrd Amendment),
para. 207; and EC – Fasteners (Article 21.5 – China), para. 5.292.
155
related to panel composition,6 alleged conflicts of interest,7 enhanced
third-party rights,8 the admissibility of certain evidence,9 BCI procedures
and other confidentiality issues,10 the participation of private counsel or
industry experts,11 the panel’s timetable, amicus curiae briefs,12 open
hearings,13 consultations with scientific experts14 and interpretation in a
language other than the official languages of the WTO.15
There are no pre-established criteria that panels must apply when
deciding whether or not to issue preliminary rulings, other than the
requirements of due process and to conduct proceedings efficiently and
with a view to avoiding unnecessary delay. While there is no explicit
provision in the DSU or other covered agreements to guide panels or the
Appellate Body on how to handle these requests, Articles 12.1 and 17.9 of
the DSU respectively provide panels and the Appellate Body with the
6
See, for example, Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), paras.
164–172; and Panel Report, US – Cotton (Article 21.5 – Brazil), paras. 8.27–8.28 and
pp. A-59–63.
7
See, for example, Appellate Body Report, EC – Sugar, para. 11; Panel Reports, EC – Tariff
Preferences, paras. 7.9–7.13; and Guatemala – Cement II, paras. 8.10–8.12.
8
See the section on enhanced third-party rights on page 69.
9
See, for instance, Panel Reports, China – Rare Earths, paras. 7.11–7.28; and Russia – Pigs
(EU), para. 6.52.
10
See, for instance, Panel Reports, US – Carbon Steel (India), para. 1.9; India – Agricultural
Products, paras. 1.11–1.13 and Annex A-2; China – GOES (Article 21.5 – United States),
para. 1.11 and Annex A-2; US – COOL (Article 21.5 – Canada/Article 21.5 – Mexico),
para. 1.11 and Annexes A-5 and A-6; US – Washing Machines, para. 1.10 and Annex A-2;
Russia – Pigs (EU), para. 1.12 and Annex A-2; and Russia – Tariff Treatment, para. 1.13
and Annex B-2.
11
In EC – Bananas, the Appellate Body considered that WTO members may bring private
counsel to oral hearings as part of their delegations. Appellate Body Report, EC –
Bananas, paras. 5–12. In Russia – Pigs (EU), the panel rejected a request made by the
European Union to exclude an industry representative in Russia’s delegation. Panel
Report, Russia – Pigs (EU), paras. 7.20–7.22.
12
See page 165 for a list of Appellate Body reports in which Appellate Body divisions have
received amicus curiae briefs.
13
See footnote 139 of Chapter 4 for an illustrative list of panel reports in which public
observation of substantive panel meetings was granted, and footnote 299 of Chapter 4 for
an illustrative list of Appellate Body reports in which public observation of hearings was
permitted.
14
See footnote 52 of Chapter 2 for an illustrative list of disputes in which panels have
appointed individual experts.
15
In Russia – Pigs (EU), the panel accepted the request by Russia, the respondent, to
authorize simultaneous English-Russian interpretation and Russian-English interpret-
ation during the panel’s first and second substantive meetings with the parties, as well
as the panel’s meeting with the experts. Panel Report, Russia – Pigs (EU), paras. 1.13–1.17
and 7.1–7.19.
other procedural issues arising in ds proceedings 157
flexibility to adjust their working procedures,16 either to issue the
requested ruling on a preliminary basis17 or to defer such ruling to their
report.18 Among the panels that have issued preliminary rulings, some
have circulated such rulings to the DSB as a WTO document with the
agreement of the parties.19 Most of these rulings, however, are issued to
the parties and third parties and later reflected in the report.20 Recently,
some panels have first issued their preliminary conclusions and later
provided detailed reasons supporting those conclusions.21
The efficiency of panel proceedings and due process concerns demand
that preliminary ruling requests be submitted as early as possible in the
proceedings.22 Preliminary ruling requests are not to be used as a
16
17
In Australia – Apples, for example, the panel noted that it had decided to issue an early
ruling, with respect to a challenge by Australia on the adequacy of the panel request, “in
the interest of due process, and especially in order to allow parties and third parties
sufficient time to prepare their first written submissions”. See Panel Report, Australia –
Apples, Annex A, para. 3. In US – Carbon Steel (India), the panel issued preliminary
rulings on the United States’ request that certain claims advanced by India in its first
written submission fell outside the panel’s terms of reference. The panel issued its rulings
prior to the second substantive meeting in order to clarify the scope of the dispute. Panel
Report, US – Carbon Steel (India), paras. 1.10–1.18. See also Panel Report, US – Counter-
vailing and Anti-Dumping Measures (China), paras. 1.9–1.10 and 7.1–7.5.
18
For example, in China – Rare Earths, the panel deferred to its reports a ruling on the
availability of a defence under Article XX of the GATT 1994 for a violation of paragraph
11.3 of China’s Protocol of Accession on the grounds that the ruling concerned a complex
issue of substance, not procedure, warranting careful consideration of the parties’ and
third parties’ arguments. Panel Report, China – Rare Earths, paras. 1.11–1.14. See also
Panel Report, Dominican Republic – Safeguard Measures, para. 1.11.
19
See Communications from the Panels, Canada – Wheat Exports and Grain Imports, WT/
DS276/12, 21 July 2003; Australia – Apples, WT/DS367/7, 23 June 2008; China – Raw
Materials, WT/DS394/9, WT/DS395/9, WT/DS398/8, 18 May 2010; China – Electronic
Payment Services, WT/DS413/4, 30 September 2011; Canada – Feed-in Tariff Program/
Canada – Renewable Energy, WT/DS412/8, WT/DS426/7, 25 May 2012; EC – Seal
Products, WT/DS400/6, WT/DS401/7, 5 February 2013; US – Countervailing and Anti-
Dumping Measures (China), WT/DS449/4, 7 June 2013; US – Countervailing Measures
(China), WT/DS437/4, 21 February 2013; and India – Agricultural Products, WT/DS430/
5, 28 June 2013.
20
For instance, Panel Reports, Guatemala – Cement II, para. 8.11; US – FSC (Article 21.5 – EC),
para. 6.3; EC – Approval and Marketing of Biotech Products, para. 7.47; US – Carbon Steel
(India), paras. 1.10–1.11; and US – Countervailing Measures (China), paras. 1.14–1.16.
21
See, for instance, Panel Reports, Canada – Renewable Energy/Canada – Feed-in Tariff
Program, para. 7.8; United States – Lamb, paras. 5.15–5.16; and Russia – Tariff Treatment,
paras. 1.14–1.15.
22
Some parties have thus submitted preliminary ruling requests upon the panel’s compos-
ition or shortly thereafter. See, for example, Panel Reports, EC and certain member
States – Trademarks and Geographical Indications, paras. 1.4, 2.2, and 7.1; US – Upland
litigation tool.23 Recent panel working procedures include standard lan-
guage24 providing for the early filing of preliminary ruling requests.25
Parties are thus asked to submit any request for a preliminary ruling at
the earliest possible opportunity and in any event no later than in their
first written submission to the panel.
Cotton, paras. 1.5 and 7.1; US – Countervailing and Anti-Dumping Measures, paras. 1.5
and 1.9; and US – Countervailing Measures (China), paras. 1.5 and 1.14. When a member
wishes to raise an objection in dispute settlement proceedings, it is always incumbent on
that member to do so promptly. The failure of a member to do so may result in such
member being deemed to have waived its right to have a panel consider its objections. See
Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 50. As regards
preliminary ruling requests in appellate review proceedings, “[a]n objection to jurisdic-
tion should be raised as early as possible” (Appellate Body Report, US – 1916 Act,
para. 54) 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”. See Appellate Body Report, US – Offset Act (Byrd Amend-
ment), para. 208.
23
Nothing in the DSU prevents a defending party from requesting further clarification on
the claims raised in a panel request even before the filing of the first written submission.
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”. Appellate Body Report, Thailand – H-Beams, para. 97 (citing Appellate
Body Report, US – FSC, para. 166).
24
This language may be as follows:
A party shall submit any request for a preliminary ruling at the earliest
possible opportunity and in any event no later than in its first written
submission to the Panel. If the [complainant] requests such a ruling, the
[respondent] shall submit its response to the request in its first written
submission. If the [respondent] requests such a ruling, the [complainant]
shall submit its response to the request prior to the first substantive meeting
of the Panel, at a time to be determined by the Panel in light of the request.
Exceptions to this procedure shall be granted upon a showing of good cause.
25
While the current Working Procedures for Appellate Review (WT/AB/WP/6) do not
contain a provision that specifically addresses the issue of preliminary ruling requests,
Rule 16(1) thereof provides the Appellate Body with sufficient flexibility to adopt an
“additional procedure” in the “interests of fairness and orderly procedure” where a
procedural question arises that is not covered by the Working Procedures for Appellate
Review. Such an additional procedure must not be inconsistent with the DSU, the other
covered agreements, or the Working Procedures themselves (Appellate Body Report, EC
and certain member States – Large Civil Aircraft, Annex III, para. 7). In practice,
participants are encouraged to submit such requests as early as possible. Given the limited
timeline of appellate review proceedings, these requests have often been submitted before
the oral hearing. See, for example, Appellate Body Reports, EC – Asbestos, para. 51; US –
Continued Zeroing, paras. 7–10, Annex III; EC and certain member States – Large Civil
Aircraft, Annex III, paras. 1, 2, 7, and 28; and Canada – Feed-in Tariff Program/Canada –
Renewable Energy, Annex 4, paras. 1 and 8.
Generally, neither panels nor the Appellate Body deem it necessary to
conduct a separate hearing or meeting during which the parties might
offer oral arguments and ask questions relating to preliminary ruling
requests.26 However, on a few occasions panels and the Appellate Body
have called for meetings with the parties specifically to address prelimin-
ary ruling requests.27
Panels typically give third parties the opportunity to comment on
preliminary ruling requests,28 unless such requests are raised after the
exhaustion of the third-party rights. The rationale is that third parties are
guaranteed, by Article 10.3 of the DSU, the right to participate in the
panel proceedings until the “first meeting of the panel”.29 The Appellate
Body has also generally granted third participants the opportunity to
comment on preliminary ruling requests.30
26
Panel Report, Argentina – Import Measures, Annex D-2, paras. 3.19–3.20.
27
See Appellate Body Reports, Brazil – Aircraft, paras. 103–125; Canada – Aircraft, paras.
125–147; EC and certain member States – Large Civil Aircraft, Annex III; and US – Large
Civil Aircraft (2nd Complaint), Annex III. See also Panel Reports, Canada – Wheat
Exports and Grain Imports, para. 6.10; and China – Raw Materials, paras. 7.1–7.4.
28
Early panels did not have a consistent practice of allowing third-party participation in the
preliminary ruling stage of panel proceedings. See, for example, Panel Reports, Indonesia –
Autos, paras. 14.1–14.9; Korea – Alcoholic Beverages, paras. 10.14–10.16, and 10.20–10.23;
India – Quantitative Restrictions, paras. 5.8–5-10, for instances in which the panels did
not consult with third parties before making a preliminary ruling. However, see, for
example, Panel Reports, Canada – Wheat Exports and Grain Imports, paras. 6.6–6.7; and
US – Upland Cotton, para. 7.3, for instances where panels invited third parties to
participate in the preliminary ruling stage of the panel proceedings. Similarly, early
Article 21.5 panels issued preliminary rulings rejecting the notion that third parties were
permitted to participate in all proceedings until the single meeting of the compliance
panel was held. See Panel Reports, Australia – Automotive Leather II (Article 21.5 – US),
paras. 3.7–3.10; and Australia – Salmon (Article 21.5 – Canada), paras. 7.5 and 7.6.
However, third-party participation until the single meeting of the compliance panel has
since been allowed in Article 21.5 proceedings following the panel’s preliminary ruling in
Canada – Dairy (Panel Report, Canada – Dairy (Article 21.5 – New Zealand and US),
para. 2.34) and the Appellate Body’s statements in US – FSC (Appellate Body Report,
US – FSC (Article 21.5 – EC), para. 245). See also Brazil’s statement at the DSB meeting
held on 28 January 2013, highlighting its support for third-party participation in prelim-
inary ruling requests with reference to the compliance panel proceedings in US – Large
Civil Aircraft (2nd complaint) (Article 21.5 – EC), as well as for the circulation of
preliminary rulings by panels (WT/DSB/M/328).
29
See Appellate Body Report, US – FSC (Article 21.5 – EC), para. 245.
30
See, for instance, Appellate Body Reports, EC – Bananas III, paras. 5–12; Brazil – Aircraft,
paras. 103–125; Canada – Aircraft, paras. 125–147; Thailand – H-Beams, paras. 62–78;
US – Offset Act (Byrd Amendment), paras. 185 and 187; and Canada – Feed-In Tariff
Program/Canada – Renewable Energy, Annex 4, para. 4.
Confidentiality
General Remarks
The principle of confidentiality applies to the entire WTO dispute
settlement proceedings: consultations (Article 4.6 of the DSU); panel
deliberations and written submissions (Articles 14.1 and 18.2 of the
DSU, and paragraph 3 of the Working Procedures in Appendix 3 to
the DSU); and the proceedings of the Appellate Body (Article 17.10 of
the DSU).31
Nonetheless, parties may make use of their right to disclose their own
submissions to the public and may be requested to provide a non-
confidential summary of those submissions (Article 18.2 of the DSU
and paragraph 3 of the Working Procedures in Appendix 3 to the
DSU). In addition, panel and Appellate Body reports also provide a
description of the proceedings, including the positions taken by various
participants. These reports are publicly available upon their official
circulation to the WTO members.
Confidentiality during Consultations

With respect to the principle of confidentiality during consultations,
panels have clarified that the obligation to maintain confidentiality is
imposed on the members that participate in the consultations and refers
to information that is not otherwise in the public domain.32 The essence
of consultations is to enable the parties to gather relevant information;
therefore, parties do not breach the principle of confidentiality by dis-
closing in panel proceedings information acquired during the consult-
ations.33 However, panels should not inquire as to what happened during
consultations.34
Moreover, panels have considered that they may take note of docu-
mentary evidence concerning the purely factual question of whether
certain issues were raised during consultations without defeating the
purpose of the consultations.35 On this point, even information obtained
31
Panels and the Appellate Body have developed specific working procedures to deal with
confidential information. We will refer to these procedures in the subsequent sections.
32
Panel Report, Canada – Wheat Exports and Grain Imports, para. 5.6.
33
Panel Report, Korea – Alcoholic Beverages, para. 10.23.
34
Panel Report, US – Poultry (China), para. 7.35.
35
Panel Report, US – Lamb, paras. 5.39–5.40.
in connection with previous panels involving the same parties and the
same matter may be admissible in subsequent proceedings.36 However,
settlement offers made in the context of consultations are, in case a
mutually agreed solution is not reached, of no legal consequence to the
later stages of dispute settlement, as far as the rights of the parties to the
dispute are concerned.37
Confidentiality during Panel Proceedings

As regards written submissions, while one party cannot disclose the
submissions of another party, each party is entitled to disclose statements
of its own positions.38 Parties and third parties in a dispute are fully
responsible for any acts of their officials, as well as their representatives,
counsel or consultants,39 whether they are members of the party’s official
delegation or not.40 These rules also apply to arbitration proceedings
under Article 22.6 of the DSU.41
Article 14.1 of the DSU provides that panel deliberations must be
confidential. Panels have clarified that this obligation applies to panels
and their obligations in respect of confidentiality. It does not apply to the
obligations of the parties in respect of confidentiality.42 Although oral
hearings are held behind closed doors as a rule, panels have agreed to
open the hearings to public observation, at the request of the parties.
Panels have considered that opening the hearings to public observation
does not breach the requirement of confidentiality in Article 14.1 of the
DSU.43
In practice, panels have developed, at the request of the parties, specific
working procedures to deal with confidential information. For an explan-
ation of the various working procedures adopted by panels to address
confidential information, see page 97.
36
Panel Report, Australia – Automotive Leather II, para. 9.34.
37
Panel Report, US – Underwear, para. 7.27.
38
Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.14.
39
Panel Reports, US – Steel Safeguards, para. 5.3; and EC – Tariff Preferences, paras.
7.15–7.16.
40
Panel Report, Brazil – Aircraft (Article 21.5 – Canada II), paras. 3.5–3.10.
41
Decision by the Arbitrator, US – Upland Cotton (Article 22.6 – US I), para. 1.33.
42
Panel Report, Brazil – Aircraft (Article 21.5 – Canada II), fn. 13.
43
Panel Reports, US – Continued Suspension, para. 7.49; and Canada – Continued Suspen-
sion, para. 7.47. See footnote 139 in Chapter 4 for a list of panel reports in which the panel
has opened oral hearings to public observation.
Confidentiality during Appellate Review
As explained in the Appellate Body report in Brazil – Aircraft, the
obligation to maintain confidentiality encompasses written submissions,
legal memoranda, written responses to questions, oral statements by the
participants and the third participants, transcripts or tapes of the oral
hearings, and the deliberations, exchange of views and internal workings
of the Appellate Body.44
Where necessary in light of the particular circumstances of an appeal,
the Appellate Body may adopt procedures to provide additional protec-
tion for BCI and SCI. In this respect, in recent cases, the Appellate Body
has issued procedures to protect sensitive information pursuant to Rule
16(1) of the Working Procedures.45 In addition, where the oral hearing
was open to public observation upon request by the participants, the
Appellate Body adopted additional procedures to ensure the protection
of BCI and SCI during the oral hearing.46
Legal Representation
The DSU does not specifically address the issue of who may represent a
party before panels and the Appellate Body. A question that arose early
in the functioning of the WTO dispute settlement system was whether
the parties and third parties to a dispute could send only government
officials as their representatives to the meetings with the panel and the
oral hearing of the Appellate Body, as was the practice during the
GATT times.
In EC – Bananas III, the delegation of one of the third parties at the
panel hearing included non-government legal advisers. Due to objections
by the complainants, the panel decided not to allow private legal counsel
at the hearing. However, at the appeal stage, the Appellate Body disagreed
with the panel’s reasoning and allowed private legal counsel at its hearing.
44
Appellate Body Report, Brazil – Aircraft, para. 121. In Thailand – H-Beams, Thailand
claimed that Poland’s private counsel may have violated the WTO rules on confidentiality
by providing Thailand’s confidential submission to an industry association, which had
submitted an amicus brief that cited Thailand’s submission. Appellate Body Report,
Thailand – H-Beams, para. 74.
45
Appellate Body Reports, EC and certain member States – Large Civil Aircraft, para. 19;
and US – Large Civil Aircraft (2nd complaint), paras. 23–24.
46
Appellate Body Reports, EC and certain member States – Large Civil Aircraft, para. 22;
US – Large Civil Aircraft (2nd complaint), para. 31; and US – COOL, para. 12.
Nothing in the WTO Agreement, the DSU, the working procedures,
customary international law or the prevailing practice of international
tribunals prevents a WTO member from determining the composition of
its own delegation in WTO dispute settlement proceedings.47 Representa-
tion by non-governmental “agents” is also a time-honoured tradition
before international tribunals. As quasi-judicial tribunals under inter-
national law, panels and the Appellate Body are no different, in this
respect, from other international tribunals.
It is now common practice for private legal counsel to represent parties
in panel and Appellate Body proceedings. They do so as part of a WTO
member’s delegation, pleading on their behalf. Even more common is the
involvement of private law firms in the preparation of parties’ written
submissions, even if this is usually not apparent because the party
involved would file these submissions itself. This may be relevant par-
ticularly for developing country members, as it may enable them to take
part in dispute settlement proceedings even when they lack human
resources with specific expertise in WTO dispute settlement.48 Each
member is, of course, responsible for these representatives, as for all its
governmental delegates, and must ensure that they respect the confiden-
tiality of the proceedings.49
Amicus curiae Submissions

Another question that is not explicitly regulated in the DSU is whether
panels and the Appellate Body may accept and consider unsolicited
submissions they receive from entities that are not a party or third party
to a dispute. These submissions are commonly referred to as amicus
curiae briefs.50 These submissions often come from NGOs, including
industry associations, or from academics.
Nothing in the DSU explicitly permits entities that are not WTO
members, such as NGOs or individuals, to submit unsolicited amicus
curiae briefs to a panel or to the Appellate Body. However, there is also
no express prohibition of this practice.
47
48
Appellate Body Report, EC – Bananas III, para. 12; see the section on legal representation
of developing-country members, including the Advisory Centre for WTO Law, on
page 181.
49
Appellate Body Report, Thailand – H-Beams, para. 68.
50
See footnote 1 in Chapter 2 on the definition of amicus curiae briefs.
Amicus curiae Briefs in Panel Proceedings
The first time a panel faced the issue of whether it could accept
unsolicited briefs from NGOs was in US – Shrimp. In that dispute,
the panel received briefs from three NGOs. The complainants
requested the panel not to consider them. The respondent, the United
States, which was familiar with the practice of amicus curiae briefs in
its own domestic courts, urged the panel to do so. The panel found
that accepting unsolicited briefs would be incompatible with the pro-
visions of the DSU.51 The Appellate Body disagreed with the panel
and found that a panel’s comprehensive authority to seek information
from any relevant source (Article 13 of the DSU) and to add to or
depart from the Working Procedures in Appendix 3 to the DSU
(Article 12.1 of the DSU) allows it to accept and consider information
and advice, or to reject it, even if submitted in an unsolicited fash-
ion.52 Accordingly, panels can accept and consider amicus curiae
briefs but are under no obligation to do so.53 Briefs attached to the
submission of a party are, however, considered an integral part of the
submission of that party.54
The Appellate Body has confirmed this view several times,55 but the
issue remains contentious among WTO members. Some members are of
the view that the DSU should not allow panels to accept and consider
unsolicited amicus curiae briefs. They consider WTO disputes as proced-
ures purely between WTO members and see no role for non-parties,
particularly NGOs.56
To date, only a few panels have made use of their discretionary right to
accept and consider unsolicited briefs.57
51
Panel Report, US – Shrimp, para. 7.8.
52
Appellate Body Report, US – Shrimp, paras. 105–108.
53
Appellate Body Reports, US – Lead and Bismuth II, para. 39; US – Shrimp, para. 108; and
EC – Sardines, paras. 157 and 167.
54
Appellate Body Report, US – Shrimp, paras. 89–91.
55
Appellate Body Reports, US – Lead and Bismuth II, para. 42; and EC – Sardines, paras.
159–160.
56
The statements of these members can be found in the minutes of the DSB meetings
in which the DSB adopted the respective panel (and Appellate Body) report.
See also General Council, Minutes of the Meeting of 22 November 2000, WT/
GC/M/60.
57
For instance, Panel Reports, US – Tuna II (Mexico), paras. 7.1–7.9; US – COOL, paras.
2.9–2.10; and EC – Seal Products, paras. 1.17–1.19.
Amicus curiae Briefs in Appellate Review
The Appellate Body has also received a number of unsolicited amicus
curiae briefs. As with panels, when the Appellate Body receives such
briefs, the entity filing a brief has no right to have it considered.58 The
Appellate Body has the authority to accept and consider any information
it deems pertinent and useful in deciding an appeal, including unsolicited
amicus curiae briefs. This flows from its broad authority to adopt pro-
cedural rules, provided that these rules do not conflict with the DSU or
the covered agreements (Article 17.9 of the DSU).59 As is the case for
panel proceedings, amicus curiae briefs attached to a participant’s sub-
mission in the appellate review stage are also considered an integral part
of that submission.
In EC – Asbestos, the Appellate Body foresaw that it might receive a
high number of amicus curiae briefs and adopted an additional procedure
pursuant to Rule 16(1) of the Working Procedures60 for the purpose of
that appeal only. This procedure specified several criteria for such sub-
missions. Persons other than the parties and third parties intending to file
such submissions were required to apply for leave to file it. In reaction to
the adoption of these additional procedures, the General Council of the
WTO discussed the matter in a special meeting. At that meeting, a
number of WTO members considered it unacceptable for the Appellate
Body to accept and consider amicus curiae briefs.61 Upon review of the
applications, the Appellate Body denied all applicants leave to file briefs.62
In EC – Sardines, the Appellate Body received an amicus curiae
submission from a WTO member that had not been a third party
before the panel and, therefore, could not become a third participant in
the appellate proceedings.63 The Appellate Body recalled that it had the
authority to receive amicus curiae briefs from private individuals or
organizations, and concluded that it was equally entitled to accept such
a brief from a WTO member. However, it considered that the brief did
not assist the Appellate Body in the appeal.64
58
Appellate Body Reports, US – Lead and Bismuth II, paras. 40–41; and EC – Sardines,
paras. 161–164 and 167.
59
Appellate Body Report, US – Lead and Bismuth II, para. 43.
60
See the section on the procedures for appellate review on page 104.
61
General Council, Minutes of the Meeting of 22 November 2000, WT/GC/M/60.
62
Appellate Body Report, EC – Asbestos, paras. 52–55.
63
See the section on third participants in appellate review proceedings on page 109.
64
Appellate Body Report, EC – Sardines, para. 170.
To date, the Appellate Body has not explicitly relied on unsolicited
amicus curiae submissions in its reasoning or the findings in the Appel-
late Body report. Nevertheless, as with panels, the Appellate Body has
usually given participants an opportunity to comment on amicus curiae
briefs submitted in a given appeal.65
65
Of the thirty-three appeals for which Appellate Body reports were circulated from 2010 to the
present, an amicus brief was submitted in six appeals: US – Anti-Dumping and Countervail-
ing Duties (China), US – Clove Cigarettes, US – Tuna II (Mexico), Canada – Renewable
Energy/Canada – Feed-In Tariff Program, EC – Seal Products, and US – Tuna II (Mexico)
(Article 21.5 – Mexico). In each of these appeals, the Appellate Body division did not find it
necessary to rely upon the submitted amicus briefs in rendering its decision. See Appellate
Body Reports, US – Anti-Dumping and Countervailing Duties (China), para. 18; US – Clove
Cigarettes, para. 11; US – Tuna II (Mexico), para. 8; Canada – Renewable Energy/Canada –
Feed-In Tariff Program, para. 1.30; EC – Seal Products, para. 1.15; and US – Tuna II (Mexico)
(Article 21.5 – Mexico), fn. 68 to para. 1.16.
7
Alternatives to Adjudication by Panels and

the Appellate Body
Panels and the Appellate Body are not always involved in a WTO
dispute. Various other ways to solve disputes are available under the
DSU. The first priority of the WTO dispute settlement system is for
parties to resolve their disputes in a cooperative manner.
Parties to a dispute may pursue a range of consensual or alternative means
of dispute settlement foreseen in the DSU. Good offices, conciliation and
mediation pursuant to Article 5 of the DSU, as well as arbitration pursuant
to Article 25 of the DSU, are alternatives to compulsory adjudication. All of
these means of dispute settlement can be used only with the consent of the
parties. In the absence of such consent, they cannot lead to a binding
decision. It is therefore important to distinguish between these consensual
means of dispute resolution, which are always at members’ disposal, and
adjudication through panel and Appellate Body proceedings, which is
compulsory for the respondent if the complainant chooses to resort to it.1
Although these forms of dispute resolution are alternatives to the panel
and Appellate Body adjudication process, some of them may nevertheless
take place in parallel with an ongoing panel process (for example, good
offices, conciliation and mediation under Article 5 of the DSU) or even after
a panel report (and possibly the Appellate Body report) has been adopted
(arbitration under Article 25 of the DSU). In addition, parties can always
reach a mutually agreed solution at any time during the proceedings.
Mutually Agreed Solutions

Nature of Mutually Agreed Solutions
The aim of the WTO dispute settlement system is to settle disputes.
Therefore, a solution that is mutually acceptable to the parties to a
dispute and consistent with the covered agreements is clearly to be
1
para. 340.
167
preferred (Article 3.7 of the DSU).2 Indeed, parties should have recourse
to adjudication only when they cannot work out a mutually agreed
solution. To reach a mutually acceptable solution, members can engage
in consultations or resort to good offices, conciliation and mediation.3
However, not just any mutually agreed solution is permissible. Mutu-
ally agreed solutions must be WTO-consistent (Articles 3.5 and 3.7 of the
DSU).4 In this respect, Article 3.7 is not prescriptive as to the nature or
content of a mutually agreed solution, save that it must be consistent with
the covered agreements.
In addition, where the matter has been formally raised in a request for
consultations,5 the mutually agreed solution must be notified to the DSB
and the relevant councils and committees (Article 3.6 of the DSU). This
serves to inform the other WTO members and to give them an oppor-
tunity to raise any concern they may have with regard to the settlement.
Implicit in these rules is an acknowledgement of the risk that the parties
to a dispute may be tempted to settle on terms that are detrimental to a
third member not involved in the dispute, or in a way that is not entirely
consistent with WTO law. Mutually agreed solutions must therefore be
notified to the DSB. Apart from the requirements for WTO-consistency
and notification, parties are left with wide discretion to negotiate the
terms of mutually agreed solutions. They may choose to settle the essence
of their dispute through a mutually agreed solution, or they may choose
to lay out intermediary steps towards the resolution of a dispute.
It is also fairly common practice for parties to agree on so-called
mutually acceptable solutions on implementation. Rather than outlining
a solution to the dispute between the parties prior to its adjudication,
such agreements pertain to the modalities for the implementation of DSB
recommendations and rulings after the panel report, and possibly
the Appellate Body report, have been adopted. Such agreements are
made in instances where the respondent’s measure has been found to
be WTO-inconsistent by a panel or the Appellate Body.6 In addition,
2
3
para. 340.
4
Appellate Body Report, EC – Bananas III (Article 21.5 – Ecuador II)/EC – Bananas III
(Article 21.5 – US), para. 211.
5
See the section on the consultations stage of the dispute settlement proceedings on page 50.
6
See, for instance, the agreements on implementation reached between the parties to the
Japan – Alcoholic Beverages II dispute (WT/DS8/17/Add.1, WT/DS10/17/Add.1 and WT/
DS11/15/Add.1).
alternatives to adjudication 169
mutually acceptable solutions on implementation may define the legal
relationship between the parties until full compliance is achieved.
Legal Effect and Interpretation of Mutually Agreed Solutions

A mutually agreed solution does not necessarily imply that the parties
have relinquished their right to have recourse to the dispute settlement
system in the event of a disagreement.7 The waiving of such dispute
settlement rights must be made explicitly in the mutually agreed solution,
if that is the intention of the parties.
When subsequently a dispute on the legal nature of a mutually agreed
solution arises between the parties, a panel may determine the intention
of the parties from the language used in the agreement. If the interpret-
ation of the agreement is unclear, the panel may then take into account
relevant factors, such as ex post communication between the parties, in
order to make findings on the legal nature of the contested mutually
agreed solution. However, the first duty of a panel in such cases is to
discern the intention of the parties as expressed in the mutually agreed
solution itself.8
Timing of Negotiations for, and Notification of, Mutually

Agreed Solutions
Bilateral consultations, which are required at the beginning of any
dispute,9 are intended to provide a setting in which the parties to a
dispute should attempt to negotiate a mutually agreed solution. As of
1 December 2016, more than seventy-eight mutually agreed solutions
pursuant to Article 3.6 of the DSU have been notified to the WTO.10
Even if consultations fail to bring about a settlement and the dispute
progresses to the stage of adjudication, the parties are nevertheless
encouraged to continue their efforts to find a mutually agreed solution.
7
(Article 21.5 – US), para. 212. See also footnote 34 in Chapter 1.
8
(Article 21.5 – US), para. 216.
9
See the section on the consultations stage of the dispute settlement proceedings on
page 50.
10
These are not to be confused with the mutually acceptable solutions on implementation
which are sometimes notified by members to the DSB. See www.wto.org/english/tratop_
e/dispu_e/dispu_current_status_e.htm.
For instance, panels should consult regularly with the parties and give
them adequate opportunity to develop a mutually satisfactory solution
(Article 11 of the DSU).11 When panels suspend their work at the
request of the complainant (Article 12.12 of the DSU), this is usually
done to allow the parties to find a mutually agreed solution. Suspension
of the panel’s work in order to find a mutually agreed solution may be
requested at any point during the panel proceedings. Where the parties
have requested the panel to suspend its work and reached a settlement
of the matter, the panel issues a report in which it briefly describes the
case and reports that the parties have reached a mutually agreed
solution (Article 12.7 of the DSU). In practice, parties have notified
mutually agreed solutions to the DSB prior to the issuance of the
interim report,12 after the issuance of the interim report but before
the issuance of the final report to the parties,13 and after the issuance of
the final report to the parties but prior to the circulation of the panel
report to all members.14
Parties may also notify a mutually agreed solution after the circulation
of the panel report. For example, at the stage of appellate review, the
appellant may withdraw the appeal at any time.15 One possible reason to
do so would be that the parties have found a mutually agreed solution. In
addition, the Appellate Body has clarified that the DSU does not preclude
parties to a dispute from entering into mutually agreed solutions after
recommendations and rulings have been made by the DSB.16 Indeed,
Article 22.8 of the DSU envisages such a situation, stipulating that
suspension of concessions shall only be applied until such time as
compliance has been achieved or a mutually satisfactory solution is
reached.17
11
See, for instance, Panel Report, Peru – Agricultural Products, para. 1.12.
12
Examples of panel reports issued further to the parties having reached a mutually agreed
solution under these circumstances are Panel Reports, US – DRAMS (Article 21.5 –
Korea); Japan – Quotas on Laver and Korea – Bovine Meat (Canada).
13
Examples of panel reports issued further to the parties having reached a mutually agreed
solution under these circumstances are Panel Reports, EC – Scallops (Canada); and EC –
Scallops (Peru and Chile).
14
An example of a panel report issued further to the parties having reached a mutually
agreed solution under these circumstances is Panel Report, EC – Butter.
15
See the section concerning the withdrawal of an appeal on page 123.
16
EC – Approval and Marketing of Biotech Products (Canada) and EC – Approval and
Marketing of Biotech Products (Argentina).
17
(Article 21.5 –US), para. 215.
Good Offices, Conciliation and Mediation
Sometimes, the involvement of an outside, independent person can assist
the parties in finding a mutually agreed solution to their dispute. In this
respect, the DSU provides for good offices, conciliation and mediation on
a voluntary basis, if the parties to the dispute so agree (Article 5.1 of the
DSU). These proceedings can also be initiated by the WTO Director-
General, who may, acting in an ex officio capacity, offer good offices,
conciliation and mediation with a view to assisting members to settle a
dispute (Article 5.6 of the DSU).
The DSU does not elaborate in detail on the characteristics of good
offices, conciliation and mediation. Whilst there are similarities between
the three mechanisms, they differ conceptually. One key similarity is that
they all involve a third, independent person in the discussions, who is
chosen or assented to by the parties. Good offices are distinct from the
other mechanisms in that recommendations are not normally made.
Good offices consist primarily of providing logistical support to help
the parties negotiate in a productive atmosphere, usually with an
emphasis on maintaining the relationship or keeping communication
channels open between the disputing parties. Conciliation and mediation
will normally conclude with recommendations, although the parties are
not obliged to accept them. The role of a third, independent person is
more important in mediation than in conciliation. In terms of the
substantive basis of these mechanisms, good offices and mediation pro-
ceed on the basis that all aspects of the dispute are put on the table, as the
case demands. Conciliation proceedings tend to focus on fact finding,
although equity and legal factors may be taken into account. In today’s
practice, however, the three mechanisms tend to converge to some
extent, making it difficult to draw a strict boundary or distinction
between them.
Good offices, conciliation and mediation under the DSU may begin at
any time (Article 5.3 of the DSU), but not before a request for
consultations is made.18 This is because pursuant to Article 1.1 of the
DSU the request for consultations is necessary in order to trigger the
application of the procedures of the DSU, including Article 5 thereof. If
the parties undertake Article 5 procedures within sixty days after the date
of the request for consultations, the complainant is not allowed to request
18
See the section on the consultations stage of the dispute settlement proceedings on
page 50.
a panel before this sixty-day period has expired. This rule may be
overridden if the parties jointly consider that the good offices, concili-
ation or mediation process has failed to settle the dispute (Article 5.4 of
the DSU). Members are given wide discretion as to the continuation of
the Article 5 alternative dispute settlement mechanisms once initiated.
These can be terminated by the parties at any time (Article 5.3 of the
DSU), and the parties may also agree that these procedures continue
while the panel proceeds with an examination of the matter (Article 5.5
of the DSU).
Good offices, conciliation and mediation proceedings are strictly
confidential, and are without prejudice to the position taken by either
party in any dispute settlement procedure to follow (Article 5.2 of the
DSU). This is important because, during such consultations and negoti-
ations, a party may offer a compromise solution, admit certain facts or
divulge to the mediator the outer limit of the terms on which it would be
prepared to settle. If no mutually agreed solution emerges from the
negotiations and the dispute goes to adjudication, constructive flexibility
and openness must not be detrimental to the parties.
In an effort to operationalize this provision, the then Director-General
issued a formal communication to members in July 2001.19 In this
communication, the Director-General called the members’ attention to
his readiness to assist them as contemplated in Article 5.6 of the DSU,
with a view to helping settle disputes without recourse to panels and to
the Appellate Body. The communication also details the procedures to be
followed when members request the Director-General’s assistance for
good offices, conciliation or mediation.
The communication contemplates that the Director-General or,
with the concurrence of the parties, a designated Deputy Director-
General, would conduct the proceedings. Unlike panel and Appellate
Body proceedings, the communication clearly states that the process of
good offices, conciliation or mediation should not result in legal con-
clusions, but assist in reaching a mutually agreed solution. The
Director-General may involve Secretariat staff to support the process,
but these staff members must be insulated from subsequent dispute
settlement proceedings (i.e. at the panel stage).20 A request to the
Director-General must also identify whether the parties are seeking
19
Communication from the Director-General on Article 5 of the DSU, WT/DSB/25, 17 July
2001. See Annex VII (page 313).
20
On the involvement of Secretariat staff in the panel proceedings, see page 30.
good offices, conciliation and/or mediation. Finally, the communica-
tion stipulates that ex parte communications (between one party and
the Director-General in the absence of the other party) are permitted,
that all communications during the process must remain confidential,
and that no third party may participate in the process, except if the
parties agree.
Although the procedures of Article 5 have not been invoked formally
since the creation of the WTO, there have been three instances of good
offices and mediation within the WTO dispute settlement framework. In
the first case, three WTO members jointly requested the Director-Gen-
eral (or a person to be designated by the Director-General with the
requesting members’ agreement) to mediate.21 The mediator was
requested to examine the extent to which a preferential tariff treatment
granted to other members unduly impaired legitimate export interests of
two of the requesting members. It is not clear from the request whether
the task of the mediator was to propose a solution. While the requesting
members did not consider the matter to be a “dispute” within the terms
of the DSU, they agreed that the mediator could be guided by procedures
similar to those envisaged for mediation under Article 5 of the DSU. The
Director-General nominated a Deputy Director-General to be the medi-
ator,22 whose conclusions, it was agreed by the parties, would remain
confidential upon completion of the procedure.23 There have, however,
been indications that the mediation resulted in an amicable outcome
reached by the parties on the basis of an advisory opinion of the
mediator.24
In the remaining two cases, good offices procedures were under-
taken by parties to the long-standing EC – Bananas dispute brought
21
Communication from the Director-General, Request for Mediation by the Philippines,
Thailand and the European Communities, WT/GC/66, 16 October 2002.
22
Thailand and the European Communities, WT/GC/66, 16 October 2002.
23
Thailand and the European Communities, Addendum, WT/GC/66/Add.1, 23 Decem-
ber 2002.
24
In particular, on 5 June 2003, the EC Council adopted a Regulation stating the European
Communities’ desire to resolve the long-standing problem with the Philippines and
Thailand and that “the Community ha[d] decided to accept [the mediator’s] proposal”
and provided that “an additional tariff quota for a limited volume of canned tuna should
be opened”. See Council Regulation (EC) No. 975/2003 of 5 June 2003 opening and
providing for the administration of a tariff quota for imports of canned tuna (Articles
2 and 9 of the Regulation).
against the European Communities25 by several Latin American coun-
tries. Again, the good offices were not requested under Article 5 of the
DSU but instead under Article 3.12 of the DSU26 and the Decision of
5 April 1966 on Procedures under Article XXIII.27 This was the first
time that the provisions of Article 3.12 of the DSU and the procedures
under that Decision were used since the inception of the WTO.28 The
good offices were requested separately by Colombia and Panama.29
The first of the official good offices processes, overseen by an individ-
ual nominated by the Director-General, did not result in a mutually
agreed solution.30 On the second occasion, however, the good offices
provided by the Director-General contributed substantially to the
agreement achieved between the parties. The good offices consult-
ations eventually resulted in the Geneva Agreement on Trade in
Bananas reached between the parties, based on the draft compromise
solution proposed by the Director-General.31 The process ended with
the signing of a mutually agreed solution pursuant to Article 3.6 of the
DSU32 that settled a number of disputes on the terms set out in that
Agreement.33
The DSU also specifically foresees recourse to good offices, concili-
ation and mediation for disputes involving a least-developed country
member. Where the consultations have not resulted in a satisfactory
solution and the least-developed country member so requests, the
Director-General or the chairperson of the DSB shall offer their good
offices, conciliation and mediation. Here, as well, the aim is to assist the
parties to settle the dispute before the establishment of a panel (Article
24.2 of the DSU).
25
On 1 December 2009, the Treaty of Lisbon, amending the Treaty on European Union and
the Treaty establishing the European Community, signed at Lisbon, 13 December 2007,
entered into force. On 29 November 2009, the WTO received a Verbal Note (WT/L/779)
from the Council of the European Union and the Commission of the European Commu-
nities stating that, by virtue of the Treaty of Lisbon, as of 1 December 2009, the European
Union replaced and succeeded the European Community.
26
Article 3.12 of the DSU makes explicit reference to the accelerated procedures in the 1966
Decision.
27
BISD 14S/18. See Annex VIII (page 320) for the text of the Decision. See also the section
describing the accelerated procedures provided for in this Decision on page 178.
28
WT/DS361/2, WT/DS364/2, para. 10.
29
On 2 November and 14 December 2007, respectively.
30 31
WT/DS361/2, WT/DS364/2, paras. 6–7. WT/DS361/2, WT/DS364/2, paras. 8–15.
32
See page 12.
33
See WT/DS16/8, WT/DS27/98, WT/DS105/11, WT/DS158/4, WT/DS361/3, WT/
DS364/3.
Arbitration Pursuant to Article 25 of the DSU
As an alternative to adjudication by panels and the Appellate Body, the
parties to a dispute can resort to binding arbitration pursuant to Article
25.1 of the DSU.34 The parties must agree on the arbitration as well as the
procedures to be followed (Article 25.2 of the DSU). The parties to the
dispute are thus free to depart from the standard procedures of the DSU
and to agree on the rules and procedures they deem appropriate for the
arbitration, including the selection of the arbitrators. The parties must
also clearly define the issues in dispute.
Before the arbitration commences, the parties must notify all WTO
members of their agreement to resort to arbitration. Other members may
become party to the arbitration only with the agreement of the parties.
They must agree to abide by the arbitration award, which, once issued,
must be notified to the DSB and the relevant councils and committees
overseeing the agreement(s) in question (Articles 25.2 and 25.3 of the
DSU). The provisions of Articles 21 and 22 of the DSU on remedies, and
on the surveillance of implementation of a decision apply to the arbitra-
tion award (Article 25.4 of the DSU).
To date, WTO members have only resorted to arbitration under Article
25 of the DSU on one occasion.35 In fact, in that case, the Article
25 arbitration was not used as an alternative to the panel and Appellate
Body procedure, but at the stage of implementation, after the panel report
had been adopted. The parties asked the arbitrator to determine the level of
nullification or impairment of benefits caused by the violation established
in the panel report. They agreed that the award of the arbitrators would be
final. Under standard DSU procedures, parties can obtain a binding
determination of the level of nullification or impairment by recourse to
arbitration under Article 22.6 of the DSU. A prerequisite for such arbitra-
tion, however, is that the complainant has requested the DSB’s authoriza-
tion for the suspension of obligations and that the respondent disagrees
with the proposed level of retaliation.36 In the case where the parties
resorted to arbitration under Article 25 of the DSU, recourse to this
procedure allowed them to quantify the level of nullification or impair-
ment caused by the violation without recourse to retaliation procedures
under Article 22. They subsequently notified a mutually satisfactory tem-
porary arrangement concerning implementation.37
34
Award of the Arbitrators, US – Section 110(5) Copyright Act (Article 25), para. 2.3.
35
US – Section 110(5) Copyright Act (Article 25).
36 37
See the section concerning countermeasures on page 141. See WT/DS160/23.
8
Developing Countries in the WTO Dispute

Settlement System
Special and Differential Treatment

The DSU recognizes the particular situation of developing and least-
developed country members, and encourages WTO members to give
special attention to this situation throughout the dispute settlement
proceedings. In particular, the DSU provides for more flexible time
frames, the possibility of resorting to an accelerated procedure specific
to developing countries that would prevail over the existing DSU rules, as
well as legal assistance, for developing and least-developed country
members.
Special and Differential Treatment during Consultations

During consultations, members should pay special attention to the par-
ticular problems and interests of developing country members (Article
4.10 of the DSU). When consultations concern a measure taken by a
developing country member, the parties may agree to extend the regular
period of consultations. If, after the relevant period has elapsed, the
parties cannot agree that the consultations have concluded, the chairper-
son of the DSB can extend even further the period for consultations
Special and Differential Treatment at the Panel Stage

At the panel stage, in a dispute between a developing country member
and a developed country member, the panel will, upon request by the
developing country member, include at least one panelist from a develop-
ing country member (Article 8.10 of the DSU).
Moreover, when a developing country member is a respondent, the
panel must accord it sufficient time to prepare and present its argumen-
tation. However, this must not affect the overall time period to complete
176
developing countries in the wto ds system 177
the dispute settlement procedure (Article 12.10 of the DSU). In practice,
this provision has been applied by granting the responding developing
country member additional time in the panel’s timetable.1
Finally, when a developing country member requests the application of
provisions on special and differential treatment, the panel report shall
explicitly indicate how these provisions have been taken into account
(Article 12.11 of the DSU).2 This rule is intended in provide transparency
in the application of the special and differential treatment.
Special and Differential Treatment at the Implementation Stage

At the implementation stage, particular attention should be paid to
matters affecting the interests of developing country members (Article
21.2 of the DSU). In practice, this provision has been applied by arbitra-
tors acting under Article 21.3(c) of the DSU,3 when determining the
reasonable period of time needed to implement the recommendations of
the panel or the Appellate Body.4
1
For example, in India – Quantitative Restrictions, India requested additional time to
prepare and present its first written submission, pursuant to Article 12.10 of the DSU.
The panel, “in light of this provision, and considering the administrative reorganization
taking place in India as a result of the recent change in government” decided to grant an
additional ten-day period to India. Panel Report, India – Quantitative Restrictions,
para. 5.10. In Turkey – Rice, the panel explicitly mentioned this provision and explained
that, “during the panel proceedings, the Panel took into account the respondent’s status as
a developing country Member, a fact not contested by the complainant, when preparing
and revising the timetable for the process”. The panel added that it had “attempted, inter
alia, to accommodate, to the extent possible, Turkey’s requests for extensions of deadlines
to submit responses to the questions posed by the Panel both after the first and second
substantive meetings, as well as Turkey’s request for time to submit comments on the
United States comments to the Panel’s interim report”. Panel Report, Turkey – Rice, paras.
7.304–7.305. See also Panel Reports, EC – Bananas III (Article 21.5 – Ecuador II), paras.
2.73–2.76 and 7.505–7.508; Philippines – Distilled Spirits, paras. 7.189–7.195; Dominican
Republic – Safeguard Measures, paras. 7.442–7.444; Argentina – Import Measures, paras.
6.9–6.10; Peru – Agricultural Products, paras. 7.529–7.531; Colombia – Textiles, paras.
7.601–7.606; and India – Solar Cells, fn. 6 to para. 1.7.
2
For instance, Panel Reports, India – Quantitative Restrictions, para. 5.157; US – Offset Act
(Byrd Amendment), para. 7.87; Mexico – Telecoms, para. 8.3; Turkey – Rice, para.
7.302–7.305; EC – Bananas (Article 21.5 – United States), para. 7.722; Philippines –
Distilled Spirits, paras. 7.189–7.195; Dominican Republic – Safeguard Measures, paras.
7.442–7.444; Argentina – Import Measures, paras. 6.9–6.10; Peru – Agricultural Products,
paras. 7.529–7.531; and Colombia – Textiles, paras. 7.601–7.606.
3
See the section on the reasonable period of time for compliance on page 132.
4
In Indonesia – Autos (Article 21.3(c)), the arbitrator, in determining the “reasonable period
of time” pursuant to Article 21.3(c) of the DSU, took into account not only Indonesia’s
Finally, if a developing country member has raised the matter, the DSB
shall consider what further and appropriate action it might take, in
addition to regular surveillance and status reports5 (Article 21.7 of the
DSU). In considering what appropriate action it might take, the DSB has
to consider not only the trade coverage of the challenged measures, but
also their impact on the economy of the concerned developing country
members6 (Article 21.8 of the DSU).
Accelerated Procedure – Decision of 5 April 1966

If a developing country member brings a complaint against a developed
country member, it has the discretionary right to invoke, as an alternative
to the provisions in Articles 4, 5, 6 and 12 of the DSU, the accelerated
procedures of the Decision of 5 April 1966.7 If there is a difference
between the rules and procedures of the Decision of 5 April 1966 and
status as a developing country, but also the fact that “it is a developing country that is
currently in a dire economic and financial situation”. The arbitrator stated that he would
give “full weight” to the mandate of Article 21.2 of the DSU. Award of the Arbitrator,
Indonesia – Autos (Article 21.3(c)), para. 24. In Chile – Alcoholic Beverages (Article 21.3(c)),
the arbitrator stated that Article 21.2 “usefully enjoins, inter alia, an arbitrator functioning
under Article 21.3(c) to be generally mindful of the great difficulties that a developing
country Member may, in a particular case, face as it proceeds to implement the recom-
mendations and rulings of the DSB”. Award of the Arbitrator, Chile – Alcoholic Beverages
(Article 21.3(c)), para. 45. In Chile – Price Band System (Article 21.3(c)), the arbitrator,
because both the complainant and the defendant were developing country members,
concluded that he was “not swayed towards either a longer or shorter period of time by
the ‘[p]articular attention’ [to be paid] to the interests of developing countries”. Award of
the Arbitrator, Chile – Price Band System (Article 21.3(c)), paras. 55–56. See also, for
instance, Awards of the Arbitrator, US – Offset Act (Byrd Amendment), para. 81; EC –
Tariff Preferences (Article 21.3(c)), para. 59; US – Gambling (Article 21.3(c)), paras. 59–61;
US – Oil Country Tubular Goods Sunset Reviews (Article 21.3(c)), para. 52; EC – Export
Subsidies on Sugar (Article 21.3(c)), para. 99; EC – Chicken Cuts (Article 21.3(c)), paras.
81–82; Colombia – Ports of Entry (Article 21.3(c)), paras. 104–107; US – COOL (Article
21.3(c)), para. 71; Peru – Agricultural Products (Article 21.3(c)), para. 3.43; and Colombia –
Textiles (Article 21.3(c)), para. 3.60.
5
See the section on compliance surveillance by the DSB on page 152.
6
In EC – Bananas III (Ecuador) (Article 22.6 – EC), the Arbitrators concluded that “[their]
interpretation and application of the factors listed in subparagraph (d) of Article 22.3 is
corroborated by the provisions of Article 21.8 which require the DSB, in considering
which action might be appropriate if a case is brought by a developing country Member, to
take into account not only the trade coverage of the measures complained of, but also their
impact on the economy of the developing country Members concerned”. Decision by the
Arbitrators, EC – Bananas III (Ecuador) (Article 22.6), para. 136.
7
BISD 14S/18. The Decision of 5 April 1966 is reproduced in Annex VIII (page 320).
the rules and procedures of Articles 4, 5, 6 and 12 of the DSU, the former
shall prevail (Article 3.12 of the DSU).
The Decision of 5 April 1966 provides that the Director-General may use
his good offices and conduct consultations, at the request of the developing
country member, with a view to facilitating a solution to the dispute.
If these consultations do not bring about a mutually satisfactory
solution within two months, the Director-General submits, at the request
of one of the parties, a report of his action, and the DSB then establishes a
panel with the approval of the parties. This panel will take due account of
all circumstances and considerations relating to the application of the
challenged measures and their impact on the trade and economic devel-
opment of the affected members. The panel has sixty days to submit its
findings, from the date the matter was referred to it.
In practice, the time frames established in the Decision of 5 April 1966
were applied once under the GATT 1947.8 Since the inception of the
WTO, this Decision has been used only once as the legal basis, together
with Article 3.12 of the DSU, to request the good offices of the Director-
General in the long-standing EC – Bananas dispute. These good offices
assisted the parties to reach a mutually agreed solution that settled the
dispute.9
The reason for the rare use of these accelerated procedures may be the
increasing complexity of the subject matters in dispute and the judicia-
lization of the WTO dispute settlement system, which results in develop-
ing country members preferring to have more time to prepare their
submissions rather than shorter time frames.
Special Dispute Settlement Provisions for Least-developed

Country Members
The special and differential treatment provisions apply to least-developed
country members,10 which are part of the group of developing country
members. In addition, the DSU sets forth a number of additional rules
applicable only to least-developed country members.
8
Panel Report, EEC (Member States) – Bananas I. 9
See page 174.
10
As of 1 December 2016, there are thirty-six least-developed country members of the WTO:
Afghanistan, Angola, Bangladesh, Benin, Burkina Faso, Burundi, Cambodia, Central Afri-
can Republic, Chad, Democratic Republic of the Congo, Djibouti, Gambia, Guinea, Guinea
Bissau, Haiti, Lao People’s Democratic Republic, Lesotho, Liberia, Madagascar, Malawi,
Mali, Mauritania, Mozambique, Myanmar, Nepal, Niger, Rwanda, Senegal, Sierra Leone,
Solomon Islands, Tanzania, Togo, Uganda, Vanuatu, Yemen and Zambia.
Where a least-developed country member is involved in a dispute,
particular consideration shall be given to the special situation of that
member. In this sense, members must exercise due restraint in raising
complaints against a least-developed country member11 and in asking for
compensation, or seeking authorization to suspend the application of
concessions or other obligations against a least-developed country
member (Article 24.1 of the DSU). As explained above, the participation
of least-developed country members in WTO dispute settlement pro-
ceedings to date has been scarce. However, Benin and Chad’s participa-
tion in US – Upland Cotton as third parties was noted by the panel, which
indicated that particular consideration was given to the special situation
of these two members in accordance with Article 24.1 of the DSU.12
For disputes involving a least-developed country member, the DSU
also foresees the use of good offices, conciliation and mediation. Where
consultations have not resulted in a satisfactory solution, upon request
by a least-developed country member, the Director-General or the
chairperson of the DSB will offer their good offices, conciliation and
mediation, with the view to assisting the parties to settle the dispute
before the establishment of a panel (Article 24.2 of the DSU).
Legal Assistance for both Developing and Developed Country Members

The WTO Secretariat assists all members, including developed countries,
in respect of dispute settlement, but it may also provide additional legal
advice and assistance to developing country members. To this end, upon
request by a developing country member, the Secretariat makes available
a qualified legal expert from the WTO technical cooperation services to
such a member. This expert shall assist the developing country member
in a manner ensuring the continued impartiality of the Secretariat (Art-
icle 27.2 of the DSU).
The Institute for Training and Technical Cooperation, a division of the
WTO Secretariat, employs independent consultants for this purpose.13 In
practice, since 1995, the Secretariat has provided legal assistance to every
developing country member that has requested such assistance, bearing in
11
In this respect, as of 1 December 2016, no WTO member has invoked dispute settlement
procedures against a least-developed country member.
12
Panel Report, US – Upland Cotton, para. 7.54. See also Panel Report, US – Upland Cotton
(Article 21.5 – Brazil), para. 8.29; and Appellate Body Report, US – Upland Cotton, para. 512.
13
Currently, Professors P. Mavroidis and E.-U. Petersmann.
mind that “the WTO Secretariat is bound by an obligation of neutrality
[and any] legal assistance it provides can only be very limited”.14
The WTO Secretariat also conducts technical cooperation activities
and special training courses on the dispute settlement system (Article
27.3 of the DSU). These courses may take place in Geneva, under the
auspices of the WTO Institute for Training and Technical Cooperation,
or overseas, either at the national or regional level.
Representation by External Counsel and the Advisory Centre

on WTO Law (ACWL)
WTO members may be represented before panels and the Appellate
Body by external counsel. In practice, external counsel often participate
in the preparation of the parties’ written submissions to a panel or the
Appellate Body. This right of representation is important for developing
country members, as it may enable them to take part in dispute settle-
ment proceedings even when they do not have the required legal cap-
acity. However, the financial resources necessary to retain external
counsel are significant, especially considering that most expert private
practitioners are from developed country law firms.
Developing country members can receive effective assistance in dispute
settlement from the Geneva-based Advisory Centre on WTO Law (ACWL)
at much lower rates than those typically charged by private firms.15 The
ACWL was created in 2001, upon the initiative of a number of countries,
especially the Netherlands and Colombia, to provide legal assistance on
WTO law to developing country members. The ACWL is an independent
inter-governmental organization, separate from the WTO, with thirty-three
developing country members. WTO members, whether developing or
developed,16 as well as countries and independent customs territories in
the process of accession to the WTO, can become members of the ACWL.
Developing countries that have become members of the ACWL and
contributed to the ACWL’s Endowment Fund are entitled to the services
provided by the ACWL.17 Additionally, all least-developed country
14
See www.wto.org/english/news_e/sppl_e/sppl207_e.htm.
15
Fees are discussed in footnotes 17 and 18 of Chapter 8.
16
Developed countries may become ACWL members for the purpose of contributing to its
expenses, but are not entitled to its services.
17
Developing country members of the ACWL are classified into three categories (A, B and C)
based on their share of world trade, with an upward correction reflecting their per capita
income. This classification determines their contribution to the Endowment Fund. The
members of the WTO are entitled to these services, without having to
become a member of the ACWL. Any developing country WTO member
that is not a member of the ACWL can also receive legal assistance from
the ACWL, at commercial rates.
The legal services provided by the ACWL fall into two categories:
(i) assistance in WTO dispute settlement proceedings; and (ii) assistance
on matters not subject to dispute settlement proceedings. The ACWL
assists and represents WTO members throughout dispute settlement
proceedings by, for example, drafting submissions and participating in
oral pleadings before panels and the Appellate Body.18 In respect of
matters that are not related to dispute settlement, the ACWL assists by,
for example, drafting opinions on issues arising at WTO negotiations, or
on measures taken or contemplated by ACWL members or least-
developed countries.19 In addition, the ACWL provides training on
WTO law and operates a secondment programme, whereby officials from
countries that are members of the ACWL gain valuable expertise on
WTO procedural law.
In 2016, on the occasion of the fifteenth anniversary of the creation of
the ACWL, the then-WTO Director General, Roberto Azevêdo, noted
that the ACWL “participates in around 20 per cent of all disputes in the
WTO ... This does not include the opinions that the ACWL has to write.
I understand that the ACWL has already provided 2,100 legal opinions.
The rate today is about 200 opinions per year.” Moreover, he noted that
“[i]t is an indispensable part of the multilateral system today, even
though it is not in the WTO. I see this as an integral part of what we
do in the WTO.”20
Endowment Fund finances the ACWL. The ACWL’s other sources of financing primarily
include voluntary contributions from members, and the fees paid for dispute settlement
assistance. See www.acwl.ch/members-introduction/; and “The Services of the ACWL”,
available at www.acwl.ch/download/ql/Services_of_the_ACWL.pdf, p. 4.
18
For assistance in dispute settlement, the ACWL charges hourly fees that are subject to a
maximum limit. The hourly rates, as well as the level of the ceiling, are determined by the
members’ categorization as a Category A, B or C member, or a least-developed country,
as well as their role in the dispute (complainant, respondent, or third party). See
www.acwl.ch/fees/.
19
In matters unrelated to dispute settlement, the ACWL provides assistance to its members
and to least-developed countries, free of charge. See www.acwl.ch/legal-advice/.
20
See www.acwl.ch/integral-part-system-wto-director-general-speaks-occasion-acwls-15th-
anniversary-inauguration-acwl-conference-annex/.
9
Ongoing Efforts to Improve the WTO Dispute

Settlement System
Negotiations to Improve and Clarify the DSU

There is broad consensus that the current dispute settlement system is an
important asset of the WTO and generally functions well. Even so,
improvements are possible, especially because as the system matures
and more members resort to its rules, it needs to adapt to developing
and changing circumstances. Indeed, negotiators of the DSU called for a
full review of the DSU within four years after the entry into force of the
WTO Agreement and for a decision on whether to continue, modify, or
terminate the DSU when they concluded the Uruguay Round.1
After some preparatory work, a review started under this mandate in
1998 and was supposed to conclude by the Third Ministerial Conference in
Seattle in December 1999. However, this did not result in an agreement.
After the failure of the Third Ministerial Conference, a group of members
continued to work informally towards possible improvements. At the
Fourth Ministerial Conference in Doha in November 2001, members were
given the mandate to agree upon improvements and clarifications of the
DSU. It is of significance that, in mandating the DSU negotiations, the
Doha Declaration stated that these negotiations would not be part of the
single undertaking.2 This means that the negotiations to improve and
clarify the DSU are not tied to the overall success or failure of the other
negotiations mandated by the Doha Declaration.
The negotiations take place in Special Sessions of the DSB, which were
established by the Trade Negotiations Committee in February 2002.
Formal and informal discussions began through the Special Session of
the DSB, with a great number of conceptual and textual proposals put
1
Marrakesh Ministerial Decision on the Application and Review of the Understanding on
Rules and Procedures Governing the Settlement of Disputes of 14 April 1994; see
www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c12s4p1_e.htm#fnt1.
2
WT/MIN(01)/DEC/1 Doha Ministerial – Ministerial Declaration of 21 November 2001,
para. 47.
183
forward. Members have periodically taken note of the progress made in
the DSU negotiations and directed the Special Sessions of the DSB to
continue to work towards a rapid conclusion of the negotiations.
As reflected in the Chairman’s Report of April 2011,3 the various
proposals under discussion have been grouped under twelve headings:
panel composition; third-party rights; remand; mutually agreed solu-
tions; strictly confidential information; sequencing; post-retaliation;
transparency and amicus curiae briefs; time frames; developing country
interests (including special and differential treatment); flexibility and
member control; and effective compliance.
Members have continued to negotiate possible improvements and
clarifications to the DSU. The latest status of the negotiations is reflected
in the Chairman’s Report of December 2015,4 which presents an overall
assessment of the state-of-play and possible ways forward towards con-
cluding the negotiations.
Secretariat’s Informal Consultations Concerning the Panel Process

In 2010, at the request of the then-WTO Director-General Pascal Lamy,
the then-Deputy Director-General Alejandro Jara initiated a process of
informal consultations with WTO members, former panelists, trade law
practitioners and WTO Secretariat experts involved in the WTO dispute
settlement system, with a view to exploring ways to find efficiency gains
in the panel review process so as to reduce the burden on WTO members
and the WTO Secretariat. The approach of the so-called “Jara process”
was that any improvements would have to be consistent with the existing
rules, and that changes could be contemplated only if they did not involve
amending the DSU. Any adjustments would also have to be effected
without undermining the excellent reputation and high quality output of
the system.5
In 2015, Director-General Roberto Azevêdo asked Deputy Director-
General Karl Brauner to continue with the “Jara process” and to “engage
with Delegations to gather views . . . on improving the functioning of the
system further, bearing in mind the budgetary constraints and headcount
limitation imposed by Members”.6 This process has been renamed the
3 4
TN/DS/25. TN/DS/28.
5
For further information, see www.wto.org/english/tratop_e/dispu_e/jaraprocess_e.htm.
6
Director-General Roberto Azevêdo’s speech to the DSB on 28 October 2015 (www.wto
.org/english/news_e/spra_e/spra94_e.htm).
ongoing efforts to improve the wto ds system 185
“Dispute Settlement Efficiency Exercise”. Deputy Director-General Brau-
ner is consulting interested stakeholders, including government officials
from WTO members, panelists, trade law practitioners and Secretariat
staff. These consultations include the current debate on how to avoid
backlogs as well as, more generally, all the possible ways and best
practices available to enhance the efficiency of the WTO dispute settle-
ment system. This process continues to be separate from, and must not
diminish in any way, the DSU review process currently under way.
Some of the ideas brought forward by members and other stakeholders
in the context of these consultations include the possibility of double-
briefing before a hearing (as is currently the practice for compliance
panels under Article 21.5 of the DSU);7 questions sent early by the panel
to the parties and third parties before the substantive meetings (hear-
ings); time limits for oral statements; page limits for submissions; and
streamlining of the expert consultation process. To date, individual
panels have implemented some of these ideas on an ad hoc basis, with
the agreement of the disputing parties in the particular case. These
continuing consultations are complemented by efforts within the WTO
Secretariat to promote more generally harmonized practices in respect of
panel proceedings.
7
See the section on compliance panel proceedings on page 136.
10
Further Information and Resources
Legal Texts
The full text of the covered agreements is available in The Results of the
Uruguay Round of Multilateral Trade Negotiations – The Legal Texts,
WTO Secretariat, Cambridge University Press, available in hard copy
and CD-ROM.1 These texts can also be consulted online at www.wto.org/
english/docs_e/legal_e/legal_e.htm.
A collection of dispute settlement-related legal texts is available in The
WTO Dispute Settlement Procedures – A Collection of the Relevant Legal
Texts, 3rd edition, WTO Secretariat, Cambridge University Press, 2012.2
In addition, the Dispute Settlement Reports (DSRs) collection pub-
lished by Cambridge University Press with the WTO’s authorization
includes panel and Appellate Body reports, as well as arbitration awards.
See www.cambridge.org/ch/academic/subjects/law/international-trade-
law/dispute-settlement-reports-complete-set-volumes-19962013?format=
WX&isbn=9780521823227.
For documents pertaining to the operation of the WTO up until 2006,
the WTO Basic Instruments and Selected Documents (BISD) is the
official source. It contains the Protocols for Accession for new WTO
member nations along with other legal instruments. See http://
onlinebookshop.wto.org/shop/article_details.asp?Id_Article=339.
WTO Official Documents

All WTO official documents produced in the WTO dispute settlement
system are public. They are accessible via the dispute settlement gateway
of the WTO’s website: www.wto.org/english/tratop_e/dispu_e/dispu_
e.htm.
1
See www.wto.org/english/res_e/publications_e/legal_texts_e.htm.
2
See www.wto.org/english/res_e/publications_e/dispu_settl_procedures_e.htm.
186
further information and resources 187
The symbols of the most important categories of WTO dispute settle-
ment documents are the following:
WT/DSB Documents of the Dispute Settlement Body (minutes of meetings, indica-
tive list of panelists, annual reports, etc.)
WT/AB Documents of the Appellate Body outside of the framework of disputes
(Working Procedures for Appellate Review)
WT/DS WTO dispute settlement documents concerning individual disputes
(from the request for consultations to the authorization of the suspension
of obligations)
WTO dispute settlement (WT/DS) documents can be searched for and

recognized as follows:
WT/DSnumber/1 Requests for consultations
WT/DSnumber/## Requests for the establishment of a panel, requests for
arbitration, status reports, notification of appeals, etc.
WT/DSnumber/R/ Panel reports
WT/DSnumber/RW/ Panel reports in compliance reviews under Article 21.5
of the DSU
WT/DSnumber/AB/R/ Appellate Body reports
WT/DSnumber/AB/RW/ Appellate Body reports in compliance reviews under
Article 21.5 of the DSU
WT/DSnumber/ARB Decisions of the arbitrator under Article 22.6 of the DSU
WT/DSnumber/RPT Decisions of arbitrators under Article 21.3(c) of
the DSU.
Information and Documents on the WTO Website

The above documents are accessible on the WTO website. The following
sites are particularly relevant for the dispute settlement system:
Dispute settlement gateway: www.wto.org/english/tratop_e/dispu_e/dispu_
e.htm
Panel and Appellate Body reports: www.wto.org/english/tratop_e/dispu_
e/dispu_e.htm#disputes
Legal Texts (covered agreements): www.wto.org/english/docs_e/legal_e/
legal_e.htm
GATT panel reports: www.wto.org/english/tratop_e/dispu_e/gt47ds_
e.htm
Official documents of the WTO: https://docs.wto.org/dol2fe/Pages/FE_
Search/FE_S_S005.aspx
The WTO’s Documents Online database (https://docs.wto.org/dol2fe/
Pages/FE_Search/FE_S_S005.aspx) allows users to search for all
WTO documents. One can search for documents using their docu-
ment symbols, numbers, key words, or by date.
Reference Books
The 2011 edition of the WTO Analytical Index3 was published in June
2012 (www.wto.org/english/res_e/booksp_e/analytic_index_e/analytic_
index_e.htm). The WTO Analytical Index contains excerpts from docu-
ments relating to the application of all the covered agreements and the
development of WTO law. It includes a section on the DSU containing
extracts from panel and Appellate Body reports relating to the various
articles of the DSU. Post-2011 jurisprudence and significant decisions
and actions taken by WTO bodies are reflected in the Analytical Index:
Supplement Covering New Developments in WTO Law and Practice,
which is updated on an ongoing basis and is available online at www.wto
.org/english/res_e/booksp_e/analytic_index_e/ai_new_dev_e.pdf.
The Appellate Body Secretariat also publishes a Repertory of Reports
and Awards. The fifth edition of this publication covers the period from
1995 to 2013 (www.wto.org/english/tratop_e/dispu_e/repertory_e/reper
tory_e.htm).
Summaries of disputes may be found in WTO Dispute Settlement:
One-Page Case Summaries (1995–2014), WTO Secretariat, 2015.4
For the dispute settlement practice under GATT 1947, the GATT
Analytical Index5 remains relevant.
An interesting publication to trace the history of law and lawyers in
the GATT/WTO and to explore how the nature of legal work has evolved
over the institution’s sixty-year history is G. Marceau (ed.), A History of
Law and Lawyers in the GATT/WTO: The Development of the Rule of
Law in the Multilateral Trading System (Cambridge University Press,
2015), which can be ordered at www.wto.org/english/res_e/publications_
e/historylaw15_e.htm.
3
WTO Analytical Index: Guide to WTO Law and Practice, 3rd edition (2011).
4
See www.wto.org/english/res_e/publications_e/dispu_settlement_e.htm.
5
World Trade Organization, GATT Analytical Index – Guide to GATT Law and Practice,
available at www.wto.org/english/res_e/booksp_e/gatt_ai_e.htm.
further information and resources 189
Contacting the WTO
Information, Media and Tel: +41 22 739 50 07/51 90
External Relations Division: Fax: +41 22 739 54 58
E-mail: enquiries@wto.org
WTO Publications: Tel: +41 22 739 52 08/53 08
Fax: +41 22 739 57 92
E-mail: publications@wto.org
Mailing address of the WTO: Centre William Rappard
154 rue de Lausanne
Case postale 48
1211 Geneva 21
Switzerland
11
Annex I: Flow Chart of the WTO Dispute

Settlement Process
Consultations
60 days (Art. 4)
by 2nd DSB During all stages

Panel established
meeting good offices,
by Dispute Settlement Body (DSB) conciliation,
(Art. 6) or mediation (Art. 5)
0–20 days
Terms of reference (Art. 7)
20 days (+10 if Composition (Art. 8)
Director-General
asked to compose
the panel) Panel examination Expert review group
Normally 2 meetings with parties (Art. 12), (Art. 13; Appendix 4)
1 meeting with third parties (Art. 10)
Interim review stage Review meeting

Descriptive part of report sent to parties with panel
for comment (Art. 15.1) Interim report upon request
sent to parties for comment (Art 15.2) (Art.15.2)
6 months from
panel’s composition, Final panel report issued to parties
3 months if urgent
(Art. 12.8; Appendix 3, para. 12(j))
up to 9 months
from panel’s Panel report circulated to the members
establishment (Art. 12.9; Appendix 3, para. 12(k)) max 90 days
Appellate review
60 days for panel DSB adopts panel/appellate report(s) (Arts. 16.4 and 17) TOTAL FOR REPORT
report unless including any changes to panel report made by ADOPTION : Usually up
appealed … … 30 days for to 9 months (no appeal),
appellate report (Arts. 16.1, 16.4 and 17.14)
appellate report or 12 months (with
‘REASONABLE appeal) from
PERIOD OF TIME’ Implementation Dispute over
establishment of panel
determined by: report by respondent of proposed implementation implementation
to adoption of report
member proposes, within ‘reasonable period of time’ (Art. 21.3) Proceedings possible, (Art. 20)
DSB agrees; or including referral to
parties in dispute In cases of non-implementation initial panel on
agree; or arbitrator
parties negotiate compensation pending full implementation 90 days
implementation (Art. 22.2) (Art. 21.5)
30 days after Countermeasures Possibility of

‘reasonable period’ If no agreement on compensation, DSB arbitration
expires authorizes the suspension of concessions or on proposed level of
other obligations pending full implementation suspension and
(Art. 22) suitability of "cross-
Cross-retaliation: retaliation"
same sector, other sectors, other agreements (Arts. 22.6 and 22.7)
(Art. 22.3)
190
12
Annex II: Dispute Settlement Rules

GATS and the TRIPS Agreement
Articles XXII and XXIII of the GATT 1994
Article XXII
Consultation
1. Each contracting party shall accord sympathetic consideration to,
and shall afford adequate opportunity for consultation regarding, such
representations as may be made by another contracting party with
respect to any matter affecting the operation of this Agreement.
2. The CONTRACTING PARTIES may, at the request of a contracting
party, consult with any contracting party or parties in respect of any
matter for which it has not been possible to find a satisfactory solution
through consultation under paragraph 1.
Article XXIII
Nullification or Impairment
1. If any contracting party should consider that any benefit accruing to
it directly or indirectly under this Agreement is being nullified or
impaired or that the attainment of any objective of the Agreement is
being impeded as the result of
(a) the failure of another contracting party to carry out its obligations
under this Agreement, or
(b) the application by another contracting party of any measure, whether
or not it conflicts with the provisions of this Agreement, or
(c) the existence of any other situation,
the contracting party may, with a view to the satisfactory adjustment of
the matter, make written representations or proposals to the other
191
contracting party or parties which it considers to be concerned. Any
contracting party thus approached shall give sympathetic consideration
to the representations or proposals made to it.
2. If no satisfactory adjustment is effected between the Contracting
Parties concerned within a reasonable time, or if the difficulty is of the
type described in paragraph 1 (c) of this Article, the matter may be
referred to the CONTRACTING PARTIES. The CONTRACTING
PARTIES shall promptly investigate any matter so referred to them
and shall make appropriate recommendations to the Contracting Parties
which they consider to be concerned, or give a ruling on the matter, as
appropriate. The CONTRACTING PARTIES may consult with Con-
tracting Parties, with the Economic and Social Council of the United
Nations and with any appropriate inter-governmental organization in
cases where they consider such consultation necessary. If the CON-
TRACTING PARTIES consider that the circumstances are serious
enough to justify such action, they may authorize a contracting party
or parties to suspend the application to any other contracting party or
parties of such concessions or other obligations under this Agreement as
they determine to be appropriate in the circumstances. If the application
to any contracting party of any concession or other obligation is in fact
suspended, that contracting party shall then be free, not later than sixty
days after such action is taken, to give written notice to the Executive
Secretary3 to the Contracting Parties of its intention to withdraw from
this Agreement and such withdrawal shall take effect upon the sixtieth
day following the day on which such notice is received by him.
Articles XXII and XXIII of the GATS

Article XXII
Consultation
1. Each Member shall accord sympathetic consideration to, and shall
afford adequate opportunity for, consultation regarding such representa-
tions as may be made by any other Member with respect to any matter
affecting the operation of this Agreement. The Dispute Settlement
Understanding (DSU) shall apply to such consultations.
3
By the Decision of 23 March 1965, the CONTRACTING PARTIES changed the title of the
head of the GATT secretariat from “Executive Secretary” to “Director-General”.
annex ii: dispute settlement rules 193
2. The Council for Trade in Services or the Dispute Settlement Body
(DSB) may, at the request of a Member, consult with any Member or
Members in respect of any matter for which it has not been possible to
find a satisfactory solution through consultation under paragraph 1.
3. A Member may not invoke Article XVII, either under this Article or
Article XXIII, with respect to a measure of another Member that falls
within the scope of an international agreement between them relating to
the avoidance of double taxation. In case of disagreement between
Members as to whether a measure falls within the scope of such an
agreement between them, it shall be open to either Member to bring this
matter before the Council for Trade in Services.11 The Council shall refer
the matter to arbitration. The decision of the arbitrator shall be final and
binding on the Members.
Article XXIII
Dispute Settlement and Enforcement
1. If any Member should consider that any other Member fails to carry
out its obligations or specific commitments under this Agreement, it may
with a view to reaching a mutually satisfactory resolution of the matter
have recourse to the DSU.
2. If the DSB considers that the circumstances are serious enough to
justify such action, it may authorize a Member or Members to suspend
the application to any other Member or Members of obligations and
specific commitments in accordance with Article 22 of the DSU.
3. If any Member considers that any benefit it could reasonably have
expected to accrue to it under a specific commitment of another Member
under Part III of this Agreement is being nullified or impaired as a result
of the application of any measure which does not conflict with the
provisions of this Agreement, it may have recourse to the DSU. If the
measure is determined by the DSB to have nullified or impaired such a
benefit, the Member affected shall be entitled to a mutually satisfactory
adjustment on the basis of paragraph 2 of Article XXI, which may
include the modification or withdrawal of the measure. In the event an
agreement cannot be reached between the Members concerned, Article
22 of the DSU shall apply.
11
With respect to agreements on the avoidance of double taxation which exist on the date
of entry into force of the WTO Agreement, such a matter may be brought before the
Council for Trade in Services only with the consent of both parties to such an agreement.
Article 64 of the TRIPS Agreement
Article 64
Dispute Settlement
1. The provisions of Articles XXII and XXIII of GATT 1994 as elabor-
ated and applied by the Dispute Settlement Understanding shall apply to
consultations and the settlement of disputes under this Agreement except
as otherwise specifically provided herein.
2. Subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 shall
not apply to the settlement of disputes under this Agreement for a period
of five years from the date of entry into force of the WTO Agreement.
3. During the time period referred to in paragraph 2, the Council for
TRIPS shall examine the scope and modalities for complaints of the type
provided for under subparagraphs 1(b) and 1(c) of Article XXIII of
GATT 1994 made pursuant to this Agreement, and submit its recom-
mendations to the Ministerial Conference for approval. Any decision of
the Ministerial Conference to approve such recommendations or to
extend the period in paragraph 2 shall be made only by consensus, and
approved recommendations shall be effective for all Members without
further formal acceptance process.
The Understanding on Rules and Procedures Governing the

Settlement of Disputes (DSU)
Members hereby agree as follows:
Article 1
Coverage and Application
1. The rules and procedures of this Understanding shall apply to
disputes brought pursuant to the consultation and dispute settlement
provisions of the agreements listed in Appendix 1 to this Understanding
(referred to in this Understanding as the “covered agreements”). The
rules and procedures of this Understanding shall also apply to consult-
ations and the settlement of disputes between Members concerning their
rights and obligations under the provisions of the Agreement Establish-
ing the World Trade Organization (referred to in this Understanding as
the “WTO Agreement”) and of this Understanding taken in isolation or
in combination with any other covered agreement.
2. The rules and procedures of this Understanding shall apply subject
to such special or additional rules and procedures on dispute settlement
contained in the covered agreements as are identified in Appendix 2 to
this Understanding. To the extent that there is a difference between
the rules and procedures of this Understanding and the special or
additional rules and procedures set forth in Appendix 2, the special or
additional rules and procedures in Appendix 2 shall prevail. In
disputes involving rules and procedures under more than one covered
agreement, if there is a conflict between special or additional rules and
procedures of such agreements under review, and where the parties to the
dispute cannot agree on rules and procedures within 20 days of the
establishment of the panel, the Chairman of the Dispute Settlement Body
provided for in paragraph 1 of Article 2 (referred to in this Understand-
ing as the “DSB”), in consultation with the parties to the dispute, shall
determine the rules and procedures to be followed within ten days after a
request by either Member. The Chairman shall be guided by the principle
that special or additional rules and procedures should be used where
possible, and the rules and procedures set out in this Understanding
should be used to the extent necessary to avoid conflict.
Article 2
Administration
1. The Dispute Settlement Body is hereby established to administer
these rules and procedures and, except as otherwise provided in a
covered agreement, the consultation and dispute settlement provisions
of the covered agreements. Accordingly, the DSB shall have the authority
to establish panels, adopt panel and Appellate Body reports, maintain
authorize suspension of concessions and other obligations under the
covered agreements. With respect to disputes arising under a covered
agreement which is a Plurilateral Trade Agreement, the term “Member”
as used herein shall refer only to those Members that are parties to the
relevant Plurilateral Trade Agreement. Where the DSB administers the
dispute settlement provisions of a Plurilateral Trade Agreement, only
those Members that are parties to that Agreement may participate in
decisions or actions taken by the DSB with respect to that dispute.
2. The DSB shall inform the relevant WTO Councils and Committees
of any developments in disputes related to provisions of the respective
covered agreements.
3. The DSB shall meet as often as necessary to carry out its functions
within the time-frames provided in this Understanding.
4. Where the rules and procedures of this Understanding provide for
the DSB to take a decision, it shall do so by consensus.1
Article 3
General Provisions
1. Members affirm their adherence to the principles for the manage-
ment of disputes heretofore applied under Articles XXII and XXIII of
GATT 1947, and the rules and procedures as further elaborated and
modified herein.
2. The dispute settlement system of the WTO is a central element in
providing security and predictability to the multilateral trading system.
The Members recognize that it serves to preserve the rights and obliga-
tions of Members under the covered agreements, and to clarify the
existing provisions of those agreements in accordance with customary
rules of interpretation of public international law. Recommendations and
rulings of the DSB cannot add to or diminish the rights and obligations
provided in the covered agreements.
3. The prompt settlement of situations in which a Member considers
that any benefits accruing to it directly or indirectly under the covered
agreements are being impaired by measures taken by another Member is
essential to the effective functioning of the WTO and the maintenance of
a proper balance between the rights and obligations of Members.
4. Recommendations or rulings made by the DSB shall be aimed at
achieving a satisfactory settlement of the matter in accordance with the
rights and obligations under this Understanding and under the covered
agreements.
5. All solutions to matters formally raised under the consultation and
dispute settlement provisions of the covered agreements, including arbi-
tration awards, shall be consistent with those agreements and shall not
nullify or impair benefits accruing to any Member under those agree-
ments, nor impede the attainment of any objective of those agreements.
6. Mutually agreed solutions to matters formally raised under the
consultation and dispute settlement provisions of the covered agreements
1
The DSB shall be deemed to have decided by consensus on a matter submitted for its
consideration, if no Member, present at the meeting of the DSB when the decision is taken,
formally objects to the proposed decision.
shall be notified to the DSB and the relevant Councils and Committees,
where any Member may raise any point relating thereto.
7. Before bringing a case, a Member shall exercise its judgement as to
whether action under these procedures would be fruitful. The aim of the
dispute settlement mechanism is to secure a positive solution to a
dispute. A solution mutually acceptable to the parties to a dispute and
consistent with the covered agreements is clearly to be preferred. In the
absence of a mutually agreed solution, the first objective of the dispute
settlement mechanism is usually to secure the withdrawal of the meas-
ures concerned if these are found to be inconsistent with the provisions
of any of the covered agreements. The provision of compensation should
be resorted to only if the immediate withdrawal of the measure is
impracticable and as a temporary measure pending the withdrawal of
the measure which is inconsistent with a covered agreement. The last
resort which this Understanding provides to the Member invoking the
dispute settlement procedures is the possibility of suspending the appli-
cation of concessions or other obligations under the covered agreements
on a discriminatory basis vis-à-vis the other Member, subject to author-
ization by the DSB of such measures.
8. In cases where there is an infringement of the obligations assumed
under a covered agreement, the action is considered prima facie to
constitute a case of nullification or impairment. This means that there
is normally a presumption that a breach of the rules has an adverse
impact on other Members parties to that covered agreement, and in such
cases, it shall be up to the Member against whom the complaint has been
brought to rebut the charge.
9. The provisions of this Understanding are without prejudice to the
rights of Members to seek authoritative interpretation of provisions of a
covered agreement through decision-making under the WTO Agreement
or a covered agreement which is a Plurilateral Trade Agreement.
10. It is understood that requests for conciliation and the use of the
dispute settlement procedures should not be intended or considered as
contentious acts and that, if a dispute arises, all Members will engage in
these procedures in good faith in an effort to resolve the dispute. It is also
understood that complaints and counter-complaints in regard to distinct
matters should not be linked.
11. This Understanding shall be applied only with respect to new
requests for consultations under the consultation provisions of the
covered agreements made on or after the date of entry into force of the
WTO Agreement. With respect to disputes for which the request for
consultations was made under GATT 1947 or under any other predeces-
sor agreement to the covered agreements before the date of entry into
force of the WTO Agreement, the relevant dispute settlement rules and
procedures in effect immediately prior to the date of entry into force of
the WTO Agreement shall continue to apply.2
12. Notwithstanding paragraph 11, if a complaint based on any of the
covered agreements is brought by a developing country Member against
a developed country Member, the complaining party shall have the right
to invoke, as an alternative to the provisions contained in Articles 4, 5,
6 and 12 of this Understanding, the corresponding provisions of the
Decision of 5 April 1966 (BISD 14S/18), except that where the Panel
considers that the time-frame provided for in paragraph 7 of that Deci-
sion is insufficient to provide its report and with the agreement of the
complaining party, that time-frame may be extended. To the extent that
there is a difference between the rules and procedures of Articles 4, 5,
6 and 12 and the corresponding rules and procedures of the Decision, the
latter shall prevail.
Article 4
Consultations
1. Members affirm their resolve to strengthen and improve the effect-
iveness of the consultation procedures employed by Members.
2. Each Member undertakes to accord sympathetic consideration to
and afford adequate opportunity for consultation regarding any repre-
sentations made by another Member concerning measures affecting the
operation of any covered agreement taken within the territory of the
former.3
3. If a request for consultations is made pursuant to a covered agree-
ment, the Member to which the request is made shall, unless otherwise
mutually agreed, reply to the request within ten days after the date of its
receipt and shall enter into consultations in good faith within a period of
no more than 30 days after the date of receipt of the request, with a view
to reaching a mutually satisfactory solution. If the Member does not
2
This paragraph shall also be applied to disputes on which panel reports have not been
adopted or fully implemented.
3
Where the provisions of any other covered agreement concerning measures taken by
regional or local governments or authorities within the territory of a Member contain
provisions different from the provisions of this paragraph, the provisions of such other
covered agreement shall prevail.
respond within ten days after the date of receipt of the request, or does
not enter into consultations within a period of no more than 30 days, or a
period otherwise mutually agreed, after the date of receipt of the request,
then the Member that requested the holding of consultations may pro-
ceed directly to request the establishment of a panel.
4. All such requests for consultations shall be notified to the DSB and
the relevant Councils and Committees by the Member which requests
consultations. Any request for consultations shall be submitted in writing
and shall give the reasons for the request, including identification of the
measures at issue and an indication of the legal basis for the complaint.
5. In the course of consultations in accordance with the provisions of a
covered agreement, before resorting to further action under this Under-
standing, Members should attempt to obtain satisfactory adjustment of
the matter.
6. Consultations shall be confidential, and without prejudice to the
rights of any Member in any further proceedings.
7. If the consultations fail to settle a dispute within 60 days after the
date of receipt of the request for consultations, the complaining party
may request the establishment of a panel. The complaining party may
request a panel during the 60-day period if the consulting parties jointly
consider that consultations have failed to settle the dispute.
8. In cases of urgency, including those which concern perishable
goods, Members shall enter into consultations within a period of no
more than ten days after the date of receipt of the request. If the
consultations have failed to settle the dispute within a period of 20 days
after the date of receipt of the request, the complaining party may request
the establishment of a panel.
9. In cases of urgency, including those which concern perishable goods,
the parties to the dispute, panels and the Appellate Body shall make every
effort to accelerate the proceedings to the greatest extent possible.
10. During consultations Members should give special attention to the
particular problems and interests of developing country Members.
11. Whenever a Member other than the consulting Members considers
that it has a substantial trade interest in consultations being held pursu-
ant to paragraph 1 of Article XXII of GATT 1994, paragraph 1 of Article
XXII of GATS, or the corresponding provisions in other covered agree-
ments4, such Member may notify the consulting Members and the DSB,
4
The corresponding consultation provisions in the covered agreements are listed here-
under: Agreement on Agriculture, Article 19; Agreement on the Application of Sanitary
within ten days after the date of the circulation of the request for
consultations under said Article, of its desire to be joined in the consult-
ations. Such Member shall be joined in the consultations, provided that
the Member to which the request for consultations was addressed agrees
that the claim of substantial interest is well-founded. In that event they
shall so inform the DSB. If the request to be joined in the consultations is
not accepted, the applicant Member shall be free to request consultations
under paragraph 1 of Article XXII or paragraph 1 of Article XXIII of
GATT 1994, paragraph 1 of Article XXII or paragraph 1 of Article XXIII
of GATS, or the corresponding provisions in other covered agreements.
Article 5
1. Good offices, conciliation and mediation are procedures that are
undertaken voluntarily if the parties to the dispute so agree.
2. Proceedings involving good offices, conciliation and mediation, and
in particular positions taken by the parties to the dispute during these
proceedings, shall be confidential, and without prejudice to the rights of
either party in any further proceedings under these procedures.
3. Good offices, conciliation or mediation may be requested at any
time by any party to a dispute. They may begin at any time and be
terminated at any time. Once procedures for good offices, conciliation or
mediation are terminated, a complaining party may then proceed with a
request for the establishment of a panel.
4. When good offices, conciliation or mediation are entered into
within 60 days after the date of receipt of a request for consultations,
the complaining party must allow a period of 60 days after the date of
receipt of the request for consultations before requesting the establish-
ment of a panel. The complaining party may request the establishment of
and Phytosanitary Measures, paragraph 1 of Article 11; Agreement on Textiles and

Clothing, paragraph 4 of Article 8; Agreement on Technical Barriers to Trade, paragraph
1 of Article 14; Agreement on Trade-Related Investment Measures, Article 8; Agreement
on Implementation of Article VI of the GATT 1994, paragraph 2 of Article 17; Agreement
on Implementation of Article VII of the GATT 1994, paragraph 2 of Article 19; Agree-
ment on Preshipment Inspection, Article 7; Agreement on Rules of Origin, Article 7;
Agreement on Import Licensing Procedures, Article 6; Agreement on Subsidies and
Countervailing Measures, Article 30; Agreement on Safeguards, Article 14; Agreement
on Trade-Related Aspects of Intellectual Property Rights, Article 64.1; and any corres-
ponding consultation provisions in Plurilateral Trade Agreements as determined by the
competent bodies of each Agreement and as notified to the DSB.
a panel during the 60-day period if the parties to the dispute jointly
consider that the good offices, conciliation or mediation process has
failed to settle the dispute.
5. If the parties to a dispute agree, procedures for good offices, concili-
ation or mediation may continue while the panel process proceeds.
6. The Director-General may, acting in an ex officio capacity, offer
good offices, conciliation or mediation with the view to assisting
Members to settle a dispute.
Article 6
Establishment of Panels
1. If the complaining party so requests, a panel shall be established at
the latest at the DSB meeting following that at which the request first
appears as an item on the DSB’s agenda, unless at that meeting the DSB
decides by consensus not to establish a panel.5
2. The request for the establishment of a panel shall be made in
writing. It shall indicate whether consultations were held, identify the
specific measures at issue and provide a brief summary of the legal basis
of the complaint sufficient to present the problem clearly. In case the
applicant requests the establishment of a panel with other than standard
terms of reference, the written request shall include the proposed text of
special terms of reference.
Article 7
Terms of Reference of Panels
1. Panels shall have the following terms of reference unless the parties
to the dispute agree otherwise within 20 days from the establishment of
the panel:
“To examine, in the light of the relevant provisions in (name of the
covered agreement(s) cited by the parties to the dispute), the matter
referred to the DSB by (name of party) in document ... and to make such
findings as will assist the DSB in making the recommendations or in
giving the rulings provided for in that/those agreement(s).”
5
If the complaining party so requests, a meeting of the DSB shall be convened for this
purpose within 15 days of the request, provided that at least ten days’ advance notice of the
meeting is given.
2. Panels shall address the relevant provisions in any covered agree-
ment or agreements cited by the parties to the dispute.
3. In establishing a panel, the DSB may authorize its Chairman to draw
up the terms of reference of the panel in consultation with the parties to
the dispute, subject to the provisions of paragraph 1. The terms of
reference thus drawn up shall be circulated to all Members. If other than
standard terms of reference are agreed upon, any Member may raise any
point relating thereto in the DSB.
Article 8
Composition of Panels
1. Panels shall be composed of well-qualified governmental and/or
non-governmental individuals, including persons who have served on
or presented a case to a panel, served as a representative of a Member or
of a contracting party to GATT 1947 or as a representative to the
Council or Committee of any covered agreement or its predecessor
agreement, or in the Secretariat, taught or published on international
trade law or policy, or served as a senior trade policy official of a
Member.
2. Panel members should be selected with a view to ensuring the
independence of the members, a sufficiently diverse background and a
wide spectrum of experience.
3. Citizens of Members whose governments6 are parties to the dispute
or third parties as defined in paragraph 2 of Article 10 shall not serve on a
panel concerned with that dispute, unless the parties to the dispute agree
otherwise.
4. To assist in the selection of panelists, the Secretariat shall maintain
an indicative list of governmental and non-governmental individuals
possessing the qualifications outlined in paragraph 1, from which panel-
ists may be drawn as appropriate. That list shall include the roster of
non-governmental panelists established on 30 November 1984 (BISD
31S/9), and other rosters and indicative lists established under any of
the covered agreements, and shall retain the names of persons on those
rosters and indicative lists at the time of entry into force of the WTO
Agreement. Members may periodically suggest names of governmental
6
In the case where customs unions or common markets are parties to a dispute, this
provision applies to citizens of all member countries of the customs unions or common
markets.
and non-governmental individuals for inclusion on the indicative list,
providing relevant information on their knowledge of international trade
and of the sectors or subject matter of the covered agreements, and those
names shall be added to the list upon approval by the DSB. For each of
the individuals on the list, the list shall indicate specific areas of experi-
ence or expertise of the individuals in the sectors or subject matter of the
covered agreements.
5. Panels shall be composed of three panelists unless the parties to the
panel composed of five panelists. Members shall be informed promptly of
the composition of the panel.
6. The Secretariat shall propose nominations for the panel to the
parties to the dispute. The parties to the dispute shall not oppose
nominations except for compelling reasons.
7. If there is no agreement on the panelists within 20 days after the
date of the establishment of a panel, at the request of either party, the
Director-General, in consultation with the Chairman of the DSB and
the Chairman of the relevant Council or Committee, shall determine
the composition of the panel by appointing the panelists whom the
Director-General considers most appropriate in accordance with any
relevant special or additional rules or procedures of the covered agree-
ment or covered agreements which are at issue in the dispute, after
consulting with the parties to the dispute. The Chairman of the DSB
shall inform the Members of the composition of the panel thus formed
no later than ten days after the date the Chairman receives such a
request.
8. Members shall undertake, as a general rule, to permit their officials
to serve as panelists.
9. Panelists shall serve in their individual capacities and not as govern-
ment representatives, nor as representatives of any organization.
Members shall therefore not give them instructions nor seek to influence
them as individuals with regard to matters before a panel.
10. When a dispute is between a developing country Member and a
developed country Member the panel shall, if the developing country
Member so requests, include at least one panelist from a developing
country Member.
11. Panelists’ expenses, including travel and subsistence allowance,
shall be met from the WTO budget in accordance with criteria to be
adopted by the General Council, based on recommendations of the
Committee on Budget, Finance and Administration.
Article 9
Procedures for Multiple Complainants
1. Where more than one Member requests the establishment of a panel
related to the same matter, a single panel may be established to examine
these complaints taking into account the rights of all Members con-
cerned. A single panel should be established to examine such complaints
whenever feasible.
2. The single panel shall organize its examination and present its findings
to the DSB in such a manner that the rights which the parties to the dispute
would have enjoyed had separate panels examined the complaints are in no
way impaired. If one of the parties to the dispute so requests, the panel shall
submit separate reports on the dispute concerned. The written submissions
by each of the complainants shall be made available to the other complain-
ants, and each complainant shall have the right to be present when any one
of the other complainants presents its views to the panel.
3. If more than one panel is established to examine the complaints
related to the same matter, to the greatest extent possible the
same persons shall serve as panelists on each of the separate panels
and the timetable for the panel process in such disputes shall be
harmonized.
Article 10
Third Parties
1. The interests of the parties to a dispute and those of other Members
under a covered agreement at issue in the dispute shall be fully taken into
account during the panel process.
2. Any Member having a substantial interest in a matter before a panel
and having notified its interest to the DSB (referred to in this Understanding
as a “third party”) shall have an opportunity to be heard by the panel and to
make written submissions to the panel. These submissions shall also be
given to the parties to the dispute and shall be reflected in the panel report.
3. Third parties shall receive the submissions of the parties to the
dispute to the first meeting of the panel.
4. If a third party considers that a measure already the subject of a
panel proceeding nullifies or impairs benefits accruing to it under any
covered agreement, that Member may have recourse to normal dispute
settlement procedures under this Understanding. Such a dispute shall be
referred to the original panel wherever possible.
Article 11
Function of Panels
The function of panels is to assist the DSB in discharging its responsi-
bilities under this Understanding and the covered agreements. Accord-
ingly, a panel should make an objective assessment of the matter before it,
including an objective assessment of the facts of the case and the applic-
ability of and conformity with the relevant covered agreements, and make
such other findings as will assist the DSB in making the recommendations
or in giving the rulings provided for in the covered agreements. Panels
should consult regularly with the parties to the dispute and give them
adequate opportunity to develop a mutually satisfactory solution.
Article 12
Panel Procedures
1. Panels shall follow the Working Procedures in Appendix 3 unless
the panel decides otherwise after consulting the parties to the dispute.
2. Panel procedures should provide sufficient flexibility so as to ensure
high-quality panel reports, while not unduly delaying the panel process.
3. After consulting the parties to the dispute, the panelists shall, as
soon as practicable and whenever possible within one week after the
composition and terms of reference of the panel have been agreed upon,
fix the timetable for the panel process, taking into account the provisions
of paragraph 9 of Article 4, if relevant.
4. In determining the timetable for the panel process, the panel shall
provide sufficient time for the parties to the dispute to prepare their
submissions.
5. Panels should set precise deadlines for written submissions by the
parties and the parties should respect those deadlines.
6. Each party to the dispute shall deposit its written submissions with
the Secretariat for immediate transmission to the panel and to the other
party or parties to the dispute. The complaining party shall submit its first
submission in advance of the responding party’s first submission unless
the panel decides, in fixing the timetable referred to in paragraph 3 and
after consultations with the parties to the dispute, that the parties should
submit their first submissions simultaneously. When there are sequential
arrangements for the deposit of first submissions, the panel shall establish
a firm time-period for receipt of the responding party’s submission. Any
subsequent written submissions shall be submitted simultaneously.
7. Where the parties to the dispute have failed to develop a mutually
satisfactory solution, the panel shall submit its findings in the form of a
written report to the DSB. In such cases, the report of a panel shall set out
the findings of fact, the applicability of relevant provisions and the basic
rationale behind any findings and recommendations that it makes.
Where a settlement of the matter among the parties to the dispute has
been found, the report of the panel shall be confined to a brief description
of the case and to reporting that a solution has been reached.
8. In order to make the procedures more efficient, the period in which
the panel shall conduct its examination, from the date that the compos-
ition and terms of reference of the panel have been agreed upon until the
date the final report is issued to the parties to the dispute, shall, as a
general rule, not exceed six months. In cases of urgency, including those
relating to perishable goods, the panel shall aim to issue its report to the
parties to the dispute within three months.
9. When the panel considers that it cannot issue its report within six
months, or within three months in cases of urgency, it shall inform the
DSB in writing of the reasons for the delay together with an estimate of
the period within which it will issue its report. In no case should the
period from the establishment of the panel to the circulation of the report
to the Members exceed nine months.
10. In the context of consultations involving a measure taken by a develop-
ing country Member, the parties may agree to extend the periods established
in paragraphs 7 and 8 of Article 4. If, after the relevant period has elapsed, the
consulting parties cannot agree that the consultations have concluded, the
Chairman of the DSB shall decide, after consultation with the parties, whether
to extend the relevant period and, if so, for how long. In addition, in examin-
ing a complaint against a developing country Member, the panel shall accord
sufficient time for the developing country Member to prepare and present its
argumentation. The provisions of paragraph 1 of Article 20 and paragraph
4 of Article 21 are not affected by any action pursuant to this paragraph.
11. Where one or more of the parties is a developing country Member,
the panel’s report shall explicitly indicate the form in which account has
been taken of relevant provisions on differential and more-favourable
treatment for developing country Members that form part of the covered
agreements which have been raised by the developing country Member
in the course of the dispute settlement procedures.
12. The panel may suspend its work at any time at the request of the
complaining party for a period not to exceed 12 months. In the event of
such a suspension, the time-frames set out in paragraphs 8 and 9 of this
Article, paragraph 1 of Article 20, and paragraph 4 of Article 21 shall be
extended by the amount of time that the work was suspended. If the work
of the panel has been suspended for more than 12 months, the authority
for establishment of the panel shall lapse.
Article 13
Right to Seek Information
1. Each panel shall have the right to seek information and technical
advice from any individual or body which it deems appropriate. How-
ever, before a panel seeks such information or advice from any individ-
ual or body within the jurisdiction of a Member it shall inform the
authorities of that Member. A Member should respond promptly and
fully to any request by a panel for such information as the panel
considers necessary and appropriate. Confidential information which
is provided shall not be revealed without formal authorization from the
individual, body, or authorities of the Member providing the
information.
2. Panels may seek information from any relevant source and may
consult experts to obtain their opinion on certain aspects of the matter.
With respect to a factual issue concerning a scientific or other technical
matter raised by a party to a dispute, a panel may request an advisory
report in writing from an expert review group. Rules for the establish-
ment of such a group and its procedures are set forth in Appendix 4.
Article 14
Confidentiality
1. Panel deliberations shall be confidential.
2. The reports of panels shall be drafted without the presence of the
parties to the dispute in the light of the information provided and the
statements made.
3. Opinions expressed in the panel report by individual panelists shall
be anonymous.
Article 15
Interim Review Stage
1. Following the consideration of rebuttal submissions and oral argu-
ments, the panel shall issue the descriptive (factual and argument)
sections of its draft report to the parties to the dispute. Within a period
of time set by the panel, the parties shall submit their comments in
writing.
2. Following the expiration of the set period of time for receipt of
comments from the parties to the dispute, the panel shall issue an interim
report to the parties, including both the descriptive sections and the
panel’s findings and conclusions. Within a period of time set by the
panel, a party may submit a written request for the panel to review
precise aspects of the interim report prior to circulation of the final
report to the Members. At the request of a party, the panel shall hold a
further meeting with the parties on the issues identified in the written
comments. If no comments are received from any party within the
comment period, the interim report shall be considered the final panel
report and circulated promptly to the Members.
3. The findings of the final panel report shall include a discussion of
the arguments made at the interim review stage. The interim review stage
shall be conducted within the time-period set out in paragraph 8 of
Article 12.
Article 16
Adoption of Panel Reports
1. In order to provide sufficient time for the Members to consider
panel reports, the reports shall not be considered for adoption by the
DSB until 20 days after the date they have been circulated to the
Members.
2. Members having objections to a panel report shall give written
reasons to explain their objections for circulation at least ten days prior
to the DSB meeting at which the panel report will be considered.
3. The parties to a dispute shall have the right to participate fully in the
consideration of the panel report by the DSB, and their views shall be
fully recorded.
4. Within 60 days after the date of circulation of a panel report to the
Members, the report shall be adopted at a DSB meeting7 unless a party to
the dispute formally notifies the DSB of its decision to appeal or the DSB
decides by consensus not to adopt the report. If a party has notified its
decision to appeal, the report by the panel shall not be considered for
adoption by the DSB until after completion of the appeal. This adoption
procedure is without prejudice to the right of Members to express their
views on a panel report.
7
If a meeting of the DSB is not scheduled within this period at a time that enables the
requirements of paragraphs 1 and 4 of Article 16 to be met, a meeting of the DSB shall be
held for this purpose.
Article 17
Appellate Review
Standing Appellate Body
1. A standing Appellate Body shall be established by the DSB. The
Appellate Body shall hear appeals from panel cases. It shall be composed
of seven persons, three of whom shall serve on any one case. Persons
serving on the Appellate Body shall serve in rotation. Such rotation shall
be determined in the working procedures of the Appellate Body.
2. The DSB shall appoint persons to serve on the Appellate Body for a
four-year term, and each person may be reappointed once. However, the
terms of three of the seven persons appointed immediately after the entry
into force of the WTO Agreement shall expire at the end of two years, to
be determined by lot. Vacancies shall be filled as they arise. A person
appointed to replace a person whose term of office has not expired shall
hold office for the remainder of the predecessor’s term.
3. The Appellate Body shall comprise persons of recognized authority,
matter of the covered agreements generally. They shall be unaffiliated
with any government. The Appellate Body membership shall be broadly
representative of membership in the WTO. All persons serving on the
Appellate Body shall be available at all times and on short notice, and
shall stay abreast of dispute settlement activities and other relevant
activities of the WTO. They shall not participate in the consideration
of any disputes that would create a direct or indirect conflict of interest.
4. Only parties to the dispute, not third parties, may appeal a panel
report. Third parties which have notified the DSB of a substantial interest
in the matter pursuant to paragraph 2 of Article 10 may make written
submissions to, and be given an opportunity to be heard by, the
Appellate Body.
5. As a general rule, the proceedings shall not exceed 60 days from the
date a party to the dispute formally notifies its decision to appeal to the
date the Appellate Body circulates its report. In fixing its timetable the
Appellate Body shall take into account the provisions of paragraph 9 of
Article 4, if relevant. When the Appellate Body considers that it cannot
provide its report within 60 days, it shall inform the DSB in writing of the
reasons for the delay together with an estimate of the period within
which it will submit its report. In no case shall the proceedings exceed
90 days.
6. An appeal shall be limited to issues of law covered in the panel
report and legal interpretations developed by the panel.
7. The Appellate Body shall be provided with appropriate adminis-
trative and legal support as it requires.
8. The expenses of persons serving on the Appellate Body, including
travel and subsistence allowance, shall be met from the WTO budget in
accordance with criteria to be adopted by the General Council, based on
recommendations of the Committee on Budget, Finance and Administration.

9. Working procedures shall be drawn up by the Appellate Body in
consultation with the Chairman of the DSB and the Director-General,
and communicated to the Members for their information.
10. The proceedings of the Appellate Body shall be confidential. The
reports of the Appellate Body shall be drafted without the presence of the
parties to the dispute and in the light of the information provided and the
statements made.
11. Opinions expressed in the Appellate Body report by individuals
serving on the Appellate Body shall be anonymous.
12. The Appellate Body shall address each of the issues raised in
accordance with paragraph 6 during the appellate proceeding.
13. The Appellate Body may uphold, modify or reverse the legal
findings and conclusions of the panel.
Adoption of Appellate Body Reports

14. An Appellate Body report shall be adopted by the DSB and
unconditionally accepted by the parties to the dispute unless the DSB
decides by consensus not to adopt the Appellate Body report within
30 days following its circulation to the Members.8 This adoption proced-
ure is without prejudice to the right of Members to express their views on
an Appellate Body report.
Article 18
Communications with the Panel or Appellate Body
1. There shall be no ex parte communications with the panel or
Appellate Body concerning matters under consideration by the panel or
Appellate Body.
8
If a meeting of the DSB is not scheduled during this period, such a meeting of the DSB
shall be held for this purpose.
2. Written submissions to the panel or the Appellate Body shall be
treated as confidential, but shall be made available to the parties to the
dispute. Nothing in this Understanding shall preclude a party to a
dispute from disclosing statements of its own positions to the public.
Members shall treat as confidential information submitted by another
Member to the panel or the Appellate Body which that Member has
designated as confidential. A party to a dispute shall also, upon request
of a Member, provide a non-confidential summary of the information
contained in its written submissions that could be disclosed to the
public.
Article 19
Panel and Appellate Body Recommendations
1. Where a panel or the Appellate Body concludes that a measure is
inconsistent with a covered agreement, it shall recommend that the
Member concerned9 bring the measure into conformity with that agree-
ment.10 In addition to its recommendations, the panel or Appellate Body
may suggest ways in which the Member concerned could implement the
recommendations.
2. In accordance with paragraph 2 of Article 3, in their findings and
recommendations, the panel and Appellate Body cannot add to or
diminish the rights and obligations provided in the covered agreements.
Article 20
Time-frame for DSB Decisions
Unless otherwise agreed to by the parties to the dispute, the period from
the date of establishment of the panel by the DSB until the date the DSB
considers the panel or appellate report for adoption shall as a general rule
not exceed nine months where the panel report is not appealed or
12 months where the report is appealed. Where either the panel or the
Appellate Body has acted, pursuant to paragraph 9 of Article 12 or
paragraph 5 of Article 17, to extend the time for providing its report,
the additional time taken shall be added to the above periods.
9
The “Member concerned” is the party to the dispute to which the panel or Appellate Body
recommendations are directed (i.e. the respondent).
10
With respect to recommendations in cases not involving a violation of the GATT 1994 or
any other covered agreement, see Article 26.
Article 21
Surveillance of Implementation of Recommendations and Rulings
1. Prompt compliance with recommendations or rulings of the DSB is
essential in order to ensure effective resolution of disputes to the benefit
of all Members.
2. Particular attention should be paid to matters affecting the interests
of developing country Members with respect to measures which have
been subject to dispute settlement.
3. At a DSB meeting held within 30 days11 after the date of adoption of
the panel or Appellate Body report, the Member concerned shall inform
the DSB of its intentions in respect of implementation of the recommen-
dations and rulings of the DSB. If it is impracticable to comply immedi-
ately with the recommendations and rulings, the Member concerned
shall have a reasonable period of time in which to do so. The reasonable
period of time shall be:
(a) the period of time proposed by the Member concerned, provided that
such period is approved by the DSB; or, in the absence of such
approval,
(b) a period of time mutually agreed by the parties to the dispute within
45 days after the date of adoption of the recommendations and
rulings; or, in the absence of such agreement,
(c) a period of time determined through binding arbitration within 90 days
after the date of adoption of the recommendations and rulings.12 In
such arbitration, a guideline for the arbitrator13 should be that the
reasonable period of time to implement panel or Appellate Body
recommendations should not exceed 15 months from the date of
adoption of a panel or Appellate Body report. However, that time
may be shorter or longer, depending upon the particular circumstances.
4. Except where the panel or the Appellate Body has extended, pursu-
ant to paragraph 9 of Article 12 or paragraph 5 of Article 17, the time of
providing its report, the period from the date of establishment of the
11
12
If the parties cannot agree on an arbitrator within ten days after referring the matter to
arbitration, the arbitrator shall be appointed by the Director-General within ten days,
after consulting the parties.
13
The expression “arbitrator” shall be interpreted as referring either to an individual or
a group.
panel by the DSB until the date of determination of the reasonable period
of time shall not exceed 15 months unless the parties to the dispute agree
otherwise. Where either the panel or the Appellate Body has acted to
extend the time of providing its report, the additional time taken shall be
added to the 15-month period; provided that unless the parties to the
dispute agree that there are exceptional circumstances, the total time
shall not exceed 18 months.
5. Where there is disagreement as to the existence or consistency with
a covered agreement of measures taken to comply with the recommen-
dations and rulings such dispute shall be decided through recourse to
these dispute settlement procedures, including wherever possible resort
to the original panel. The panel shall circulate its report within 90 days
after the date of referral of the matter to it. When the panel considers that
it cannot provide its report within this time frame, it shall inform the
the period within which it will submit its report.
6. The DSB shall keep under surveillance the implementation of adopted
recommendations or rulings. The issue of implementation of the recom-
mendations or rulings may be raised at the DSB by any Member at any
time following their adoption. Unless the DSB decides otherwise, the issue
of implementation of the recommendations or rulings shall be placed on
the agenda of the DSB meeting after six months following the date of
establishment of the reasonable period of time pursuant to paragraph
3 and shall remain on the DSB’s agenda until the issue is resolved. At
least ten days prior to each such DSB meeting, the Member concerned
shall provide the DSB with a status report in writing of its progress in the
implementation of the recommendations or rulings.
7. If the matter is one which has been raised by a developing country
Member, the DSB shall consider what further action it might take which
would be appropriate to the circumstances.
8. If the case is one brought by a developing country Member, in
considering what appropriate action might be taken, the DSB shall take into
account not only the trade coverage of measures complained of, but also
their impact on the economy of developing country Members concerned.
Article 22
Compensation and the Suspension of Concessions
1. Compensation and the suspension of concessions or other obliga-
tions are temporary measures available in the event that the
recommendations and rulings are not implemented within a reasonable
period of time. However, neither compensation nor the suspension of
concessions or other obligations is preferred to full implementation of a
recommendation to bring a measure into conformity with the covered
agreements. Compensation is voluntary and, if granted, shall be consist-
ent with the covered agreements.
2. If the Member concerned fails to bring the measure found to be
inconsistent with a covered agreement into compliance therewith or
otherwise comply with the recommendations and rulings within the
reasonable period of time determined pursuant to paragraph 3 of Article
21, such Member shall, if so requested, and no later than the expiry of the
reasonable period of time, enter into negotiations with any party having
invoked the dispute settlement procedures, with a view to developing
mutually acceptable compensation. If no satisfactory compensation has
been agreed within 20 days after the date of expiry of the reasonable
period of time, any party having invoked the dispute settlement proced-
ures may request authorization from the DSB to suspend the application
to the Member concerned of concessions or other obligations under the
covered agreements.
3. In considering what concessions or other obligations to suspend, the
complaining party shall apply the following principles and procedures:
(a) the general principle is that the complaining party should first seek to
suspend concessions or other obligations with respect to the same
sector(s) as that in which the panel or Appellate Body has found a
violation or other nullification or impairment;
(b) if that party considers that it is not practicable or effective to suspend
concessions or other obligations with respect to the same sector(s), it
may seek to suspend concessions or other obligations in other sectors
under the same agreement;
(c) if that party considers that it is not practicable or effective to suspend
concessions or other obligations with respect to other sectors under
the same agreement, and that the circumstances are serious enough,
it may seek to suspend concessions or other obligations under
another covered agreement;
(d) in applying the above principles, that party shall take into account:
(i) the trade in the sector or under the agreement under which
the panel or Appellate Body has found a violation or other
nullification or impairment, and the importance of such trade
to that party;
(ii) the broader economic elements related to the nullification or
impairment and the broader economic consequences of the sus-
pension of concessions or other obligations;
(e) if that party decides to request authorization to suspend concessions
or other obligations pursuant to subparagraphs (b) or (c), it shall
state the reasons therefor in its request. At the same time as the
request is forwarded to the DSB, it also shall be forwarded to the
relevant Councils and also, in the case of a request pursuant to
subparagraph (b), the relevant sectoral bodies;
(f) for purposes of this paragraph, “sector” means:
(i) with respect to goods, all goods;
(ii) with respect to services, a principal sector as identified in the
current “Services Sectoral Classification List” which identifies
such sectors;14
(iii) with respect to trade-related intellectual property rights, each of the
categories of intellectual property rights covered in Section 1, or
Section 2, or Section 3, or Section 4, or Section 5, or Section 6, or
Section 7 of Part II, or the obligations under Part III, or Part IV of
the Agreement on TRIPS;
(g) for purposes of this paragraph, “agreement” means:
(i) with respect to goods, the agreements listed in Annex 1A of the
WTO Agreement, taken as a whole as well as the Plurilateral
Trade Agreements in so far as the relevant parties to the dispute
are parties to these agreements;
(ii) with respect to services, the GATS;
(iii) with respect to intellectual property rights, the Agreement
on TRIPS.
4. The level of the suspension of concessions or other obligations
authorized by the DSB shall be equivalent to the level of the nullification
or impairment.
5. The DSB shall not authorize suspension of concessions or other
obligations if a covered agreement prohibits such suspension.
6. When the situation described in paragraph 2 occurs, the DSB, upon
request, shall grant authorization to suspend concessions or other obli-
gations within 30 days of the expiry of the reasonable period of time
unless the DSB decides by consensus to reject the request. However, if the
Member concerned objects to the level of suspension proposed, or claims
14
The list in document MTN.GNS/W/120 identifies eleven sectors.
that the principles and procedures set forth in paragraph 3 have not been
followed where a complaining party has requested authorization to
suspend concessions or other obligations pursuant to paragraph 3(b) or
(c), the matter shall be referred to arbitration. Such arbitration shall be
carried out by the original panel, if members are available, or by an
arbitrator15 appointed by the Director-General and shall be completed
within 60 days after the date of expiry of the reasonable period of time.
Concessions or other obligations shall not be suspended during the
course of the arbitration.
7. The arbitrator16 acting pursuant to paragraph 6 shall not examine
the nature of the concessions or other obligations to be suspended but
shall determine whether the level of such suspension is equivalent to the
level of nullification or impairment. The arbitrator may also determine if
the proposed suspension of concessions or other obligations is allowed
under the covered agreement. However, if the matter referred to arbitra-
tion includes a claim that the principles and procedures set forth in
paragraph 3 have not been followed, the arbitrator shall examine that
claim. In the event the arbitrator determines that those principles and
procedures have not been followed, the complaining party shall apply
them consistent with paragraph 3. The parties shall accept the arbitrator’s
decision as final and the parties concerned shall not seek a second
arbitration. The DSB shall be informed promptly of the decision of the
arbitrator and shall upon request, grant authorization to suspend con-
cessions or other obligations where the request is consistent with the
decision of the arbitrator, unless the DSB decides by consensus to reject
the request.
8. The suspension of concessions or other obligations shall be tem-
porary and shall only be applied until such time as the measure found
to be inconsistent with a covered agreement has been removed, or the
Member that must implement recommendations or rulings provides a
solution to the nullification or impairment of benefits, or a mutually
satisfactory solution is reached. In accordance with paragraph 6 of
Article 21, the DSB shall continue to keep under surveillance the
implementation of adopted recommendations or rulings, including
those cases where compensation has been provided or concessions or
15
a group.
16
The expression “arbitrator” shall be interpreted as referring either to an individual or a
group or to the members of the original panel when serving in the capacity of arbitrator.
other obligations have been suspended but the recommendations to
bring a measure into conformity with the covered agreements have not
been implemented.
9. The dispute settlement provisions of the covered agreements may be
invoked in respect of measures affecting their observance taken by
regional or local governments or authorities within the territory of a
Member. When the DSB has ruled that a provision of a covered agree-
ment has not been observed, the responsible Member shall take such
reasonable measures as may be available to it to ensure its observance.
The provisions of the covered agreements and this Understanding relat-
ing to compensation and suspension of concessions or other obligations
apply in cases where it has not been possible to secure such observance.17
Article 23
Strengthening of the Multilateral System
1. When Members seek the redress of a violation of obligations or
other nullification or impairment of benefits under the covered agree-
ments or an impediment to the attainment of any objective of the
covered agreements, they shall have recourse to, and abide by, the rules
and procedures of this Understanding.
2. In such cases, Members shall:
(a) not make a determination to the effect that a violation has occurred,
that benefits have been nullified or impaired or that the attainment of
any objective of the covered agreements has been impeded, except
through recourse to dispute settlement in accordance with the rules
and procedures of this Understanding, and shall make any such
determination consistent with the findings contained in the panel
or Appellate Body report adopted by the DSB or an arbitration award
rendered under this Understanding;
(b) follow the procedures set forth in Article 21 to determine the rea-
sonable period of time for the Member concerned to implement the
recommendations and rulings; and
(c) follow the procedures set forth in Article 22 to determine the level
of suspension of concessions or other obligations and obtain DSB
17
Where the provisions of any covered agreement concerning measures taken by regional
or local governments or authorities within the territory of a Member contain provisions
different from the provisions of this paragraph, the provisions of such covered agreement
shall prevail.
authorization in accordance with those procedures before suspend-
ing concessions or other obligations under the covered agreements
in response to the failure of the Member concerned to implement
the recommendations and rulings within that reasonable period
of time.
Article 24
Special Procedures Involving Least-Developed Country Members
1. At all stages of the determination of the causes of a dispute and of
dispute settlement procedures involving a least-developed country
Member, particular consideration shall be given to the special situ-
ation of least-developed country Members. In this regard, Members
shall exercise due restraint in raising matters under these procedures
involving a least-developed country Member. If nullification or
impairment is found to result from a measure taken by a least-
developed country Member, complaining parties shall exercise due
restraint in asking for compensation or seeking authorization to sus-
pend the application of concessions or other obligations pursuant to
these procedures.
2. In dispute settlement cases involving a least-developed country
Member, where a satisfactory solution has not been found in the course
of consultations the Director-General or the Chairman of the DSB shall,
upon request by a least-developed country Member offer their good
offices, conciliation and mediation with a view to assisting the parties
to settle the dispute, before a request for a panel is made. The Director-
General or the Chairman of the DSB, in providing the above assistance,
may consult any source which either deems appropriate.
Article 25
Arbitration
1. Expeditious arbitration within the WTO as an alternative means of
dispute settlement can facilitate the solution of certain disputes that
concern issues that are clearly defined by both parties.
2. Except as otherwise provided in this Understanding, resort to
arbitration shall be subject to mutual agreement of the parties which
shall agree on the procedures to be followed. Agreements to resort to
arbitration shall be notified to all Members sufficiently in advance of the
actual commencement of the arbitration process.
3. Other Members may become party to an arbitration proceeding
only upon the agreement of the parties which have agreed to have
recourse to arbitration. The parties to the proceeding shall agree to abide
by the arbitration award. Arbitration awards shall be notified to the DSB
and the Council or Committee of any relevant agreement where any
Member may raise any point relating thereto.
4. Articles 21 and 22 of this Understanding shall apply mutatis mutan-
dis to arbitration awards.
Article 26
1. Non-Violation Complaints of the Type Described in Paragraph 1(b)

of Article XXIII of GATT 1994
Where the provisions of paragraph 1(b) of Article XXIII of GATT
1994 are applicable to a covered agreement, a panel or the Appellate
Body may only make rulings and recommendations where a party to
the dispute considers that any benefit accruing to it directly or indir-
ectly under the relevant covered agreement is being nullified or
impaired or the attainment of any objective of that Agreement is being
impeded as a result of the application by a Member of any measure,
whether or not it conflicts with the provisions of that Agreement.
Where and to the extent that such party considers and a panel or the
Appellate Body determines that a case concerns a measure that does not
conflict with the provisions of a covered agreement to which the
provisions of paragraph 1(b) of Article XXIII of GATT 1994 are applic-
able, the procedures in this Understanding shall apply, subject to the
following:
(a) the complaining party shall present a detailed justification in support
of any complaint relating to a measure which does not conflict with
the relevant covered agreement;
(b) where a measure has been found to nullify or impair benefits under,
or impede the attainment of objectives, of the relevant covered
agreement without violation thereof, there is no obligation to with-
draw the measure. However, in such cases, the panel or the Appellate
Body shall recommend that the Member concerned make a mutually
satisfactory adjustment;
(c) notwithstanding the provisions of Article 21, the arbitration provided
for in paragraph 3 of Article 21, upon request of either party, may
include a determination of the level of benefits which have been
nullified or impaired, and may also suggest ways and means of
reaching a mutually satisfactory adjustment; such suggestions shall
not be binding upon the parties to the dispute;
(d) notwithstanding the provisions of paragraph 1 of Article 22, com-
pensation may be part of a mutually satisfactory adjustment as final
settlement of the dispute.
2. Complaints of the Type Described in Paragraph 1(c) of Article
XXIII of GATT 1994
Where the provisions of paragraph 1(c) of Article XXIII of GATT
1994 are applicable to a covered agreement, a panel may only make
rulings and recommendations where a party considers that any benefit
accruing to it directly or indirectly under the relevant covered agreement
is being nullified or impaired or the attainment of any objective of that
Agreement is being impeded as a result of the existence of any situation
other than those to which the provisions of paragraphs 1(a) and 1(b) of
Article XXIII of GATT 1994 are applicable. Where and to the extent that
such party considers and a panel determines that the matter is covered by
this paragraph, the procedures of this Understanding shall apply only up
to and including the point in the proceedings where the panel report has
been circulated to the Members. The dispute settlement rules and pro-
cedures contained in the Decision of 12 April 1989 (BISD 36S/61–67)
shall apply to consideration for adoption, and surveillance and imple-
mentation of recommendations and rulings. The following shall
also apply:
of any argument made with respect to issues covered under this
paragraph;
(b) in cases involving matters covered by this paragraph, if a panel finds
that cases also involve dispute settlement matters other than those
covered by this paragraph, the panel shall circulate a report to the
DSB addressing any such matters and a separate report on matters
falling under this paragraph.
Article 27
Responsibilities of the Secretariat
1. The Secretariat shall have the responsibility of assisting panels,
especially on the legal, historical and procedural aspects of
the matters dealt with, and of providing secretarial and technical
support.
2. While the Secretariat assists Members in respect of dispute settle-
ment at their request, there may also be a need to provide additional legal
advice and assistance in respect of dispute settlement to developing
country Members. To this end, the Secretariat shall make available a
qualified legal expert from the WTO technical cooperation services to
any developing country Member which so requests. This expert shall
assist the developing country Member in a manner ensuring the con-
tinued impartiality of the Secretariat.
3. The Secretariat shall conduct special training courses for inter-
ested Members concerning these dispute settlement procedures and
practices so as to enable Members’ experts to be better informed in
this regard.
Appendix 1
Agreements Covered by the Understanding
(A) Agreement Establishing the World Trade Organization

(B) Multilateral Trade Agreements
Annex 1A: Multilateral Agreements on Trade in Goods
Annex 1B: General Agreement on Trade in Services
Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property
Rights
Annex 2: Understanding on Rules and Procedures Governing the Settle-
ment of Disputes
(C) Plurilateral Trade Agreements
Annex 4: Agreement on Trade in Civil Aircraft
Agreement on Government Procurement
International Dairy Agreement
International Bovine Meat Agreement
The applicability of this Understanding to the Plurilateral Trade Agree-
ments shall be subject to the adoption of a decision by the parties to each
agreement setting out the terms for the application of the Understanding to
the individual agreement, including any special or additional rules or proced-
ures for inclusion in Appendix 2, as notified to the DSB.
Appendix 2
Special or Additional Rules and Procedures Contained

in the Covered Agreements
Agreement Rules and Procedures
Agreement on the Application of 11.2

Sanitary and Phytosanitary
Measures
Agreement on Textiles and Clothing 2.14, 2.21, 4.4, 5.2, 5.4, 5.6, 6.9, 6.10, 6.11,
8.1 through 8.12
Agreement on Technical Barriers to 14.2 through 14.4, Annex 2
Trade
Agreement on Implementation of 17.4 through 17.7
Article VI of GATT 1994
Agreement on Implementation of 19.3 through 19.5, Annex II.2(f), 3, 9, 21
Article VII of GATT 1994
Agreement on Subsidies and 4.2 through 4.12, 6.6, 7.2 through 7.10,
Countervailing Measures 8.5, footnote 35, 24.4, 27.7, Annex V
General Agreement on Trade in XXII:3, XXIII:3
Services
Annex on Financial Services 4
Annex on Air Transport Services 4
Decision on Certain Dispute 1 through 5
Settlement Procedures for the
GATS
The list of rules and procedures in this Appendix includes provisions where
only a part of the provision may be relevant in this context.
Any special or additional rules or procedures in the Plurilateral Trade
Agreements as determined by the competent bodies of each agreement and
as notified to the DSB.
Appendix 3
Working Procedures
l. In its proceedings the panel shall follow the relevant provisions of this
Understanding. In addition, the following working procedures shall apply.
2. The panel shall meet in closed session. The parties to the dispute, and
interested parties, shall be present at the meetings only when invited by the
panel to appear before it.
3. The deliberations of the panel and the documents submitted to it shall be
kept confidential. Nothing in this Understanding shall preclude a party to a
dispute from disclosing statements of its own positions to the public. Members
shall treat as confidential information submitted by another Member to the
panel which that Member has designated as confidential. Where a party to a
dispute submits a confidential version of its written submissions to the panel,
it shall also, upon request of a Member, provide a non-confidential summary
of the information contained in its submissions that could be disclosed to the
public.
4. Before the first substantive meeting of the panel with the parties, the
parties to the dispute shall transmit to the panel written submissions in which
they present the facts of the case and their arguments.
5. At its first substantive meeting with the parties, the panel shall ask the
party which has brought the complaint to present its case. Subsequently, and
still at the same meeting, the party against which the complaint has been
brought shall be asked to present its point of view.
6. All third parties that have notified their interest in the dispute to the DSB
shall be invited in writing to present their views during a session of the first
substantive meeting of the panel set aside for that purpose. All such third
parties may be present during the entirety of this session.
7. Formal rebuttals shall be made at a second substantive meeting of the
panel. The party complained against shall have the right to take the floor first
to be followed by the complaining party. The parties shall submit, prior to that
meeting, written rebuttals to the panel.
8. The panel may at any time put questions to the parties and ask them
for explanations either in the course of a meeting with the parties or in
writing.
9. The parties to the dispute and any third party invited to present its views
in accordance with Article 10 shall make available to the panel a written
version of their oral statements.
10. In the interest of full transparency, the presentations, rebuttals and
statements referred to in paragraphs 5 to 9 shall be made in the presence of
the parties. Moreover, each party’s written submissions, including any com-
ments on the descriptive part of the report and responses to questions put by
the panel, shall be made available to the other party or parties.
11. Any additional procedures specific to the panel.
12. Proposed timetable for panel work:
(a) Receipt of first written submissions of the parties:
(1) Complaining party: _______ 3–6 weeks
(2) Party complained against: _______ 2–3 weeks
(b) Date, time and place of first substantive meeting _______ 1–2 weeks
with the parties; third party session:
(c) Receipt of written rebuttals of the parties: _______ 2–3 weeks
(d) Date, time and place of second substantive meeting _______ 1–2 weeks
with the parties:
(e) Issuance of descriptive part of the report to the _______ 2–4 weeks
parties:
(f) Receipt of comments by the parties on the _______ 2 weeks
descriptive part of the report:
(g) Issuance of the interim report, including the _______ 2–4 weeks
findings and conclusions, to the parties:
(h) Deadline for party to request review of part(s) of _______ 1 week
report:
(i) Period of review by panel, including possible _______ 2 weeks
additional meeting with parties:
(j) Issuance of final report to parties to dispute: _______ 2 weeks
(k) Circulation of the final report to the Members: _______ 3 weeks
The above calendar may be changed in the light of unforeseen developments.

Additional meetings with the parties shall be scheduled if required.
Appendix 4
Expert Review Groups
The following rules and procedures shall apply to expert review groups
established in accordance with the provisions of paragraph 2 of Article 13.
1. Expert review groups are under the panel’s authority. Their terms of
reference and detailed working procedures shall be decided by the panel, and
they shall report to the panel.
2. Participation in expert review groups shall be restricted to persons of
professional standing and experience in the field in question.
3. Citizens of parties to the dispute shall not serve on an expert review
group without the joint agreement of the parties to the dispute, except in
exceptional circumstances when the panel considers that the need for special-
ized scientific expertise cannot be fulfilled otherwise. Government officials of
parties to the dispute shall not serve on an expert review group. Members of
expert review groups shall serve in their individual capacities and not as
government representatives, nor as representatives of any organization. Gov-
ernments or organizations shall therefore not give them instructions with
regard to matters before an expert review group.
4. Expert review groups may consult and seek information and technical
advice from any source they deem appropriate. Before an expert review
group seeks such information or advice from a source within the jurisdiction
of a Member, it shall inform the government of that Member. Any Member
shall respond promptly and fully to any request by an expert review group
for such information as the expert review group considers necessary and
appropriate.
5. The parties to a dispute shall have access to all relevant information
provided to an expert review group, unless it is of a confidential nature.
Confidential information provided to the expert review group shall not be
released without formal authorization from the government, organization or
person providing the information. Where such information is requested from
the expert review group but release of such information by the expert review
group is not authorized, a non-confidential summary of the information will be
provided by the government, organization or person supplying the information.
6. The expert review group shall submit a draft report to the parties to the
dispute with a view to obtaining their comments, and taking them into
account, as appropriate, in the final report, which shall also be issued to the
parties to the dispute when it is submitted to the panel. The final report of the
expert review group shall be advisory only.

Agreements in Force (Appendix 2 of the DSU)*
Article 11.2 of the SPS Agreement
Article 11
Consultations and Dispute Settlement
[. . .]
2. In a dispute under this Agreement involving scientific or technical
issues, a panel should seek advice from experts chosen by the panel in
consultation with the parties to the dispute. To this end, the panel may,
when it deems it appropriate, establish an advisory technical experts
group, or consult the relevant international organizations, at the request
of either party to the dispute or on its own initiative.
Articles 14.2 through 14.4 and Annex 2 of the TBT Agreement

Article 14
Consultation and Dispute Settlement
[. . .]
14.2 At the request of a party to a dispute, or at its own initiative, a
panel may establish a technical expert group to assist in questions of a
technical nature, requiring detailed consideration by experts.
14.3 Technical expert groups shall be governed by the procedures of
Annex 2.
14.4 The dispute settlement provisions set out above can be invoked in
cases where a Member considers that another Member has not achieved
satisfactory results under Articles 3, 4, 7, 8 and 9 and its trade interests
are significantly affected. In this respect, such results shall be equivalent
to those as if the body in question were a Member.
[. . .]
* This Annex includes only those provisions mentioned in Appendix 2 of the DSU that are
currently in force. It therefore does not include Articles 2.14, 2.21, 4.4, 5.2, 5.4, 5.6, 6.9,
6.10, 6.11, 8.1 through 8.12 of the Agreement on Textiles and Clothing, which was
terminated on 1 January 2005. In addition, it does not include Articles XXII:3 and XXIII:3
of the GATS, which are already included in Annex II (page 192) of this Handbook.
ANNEX 2
TECHNICAL EXPERT GROUPS
The following procedures shall apply to technical expert groups estab-

lished in accordance with the provisions of Article 14.
1. Technical expert groups are under the panel’s authority. Their terms
of reference and detailed working procedures shall be decided by the
panel, and they shall report to the panel.
2. Participation in technical expert groups shall be restricted to persons
of professional standing and experience in the field in question.
3. Citizens of parties to the dispute shall not serve on a technical expert
exceptional circumstances when the panel considers that the need for
specialized scientific expertise cannot be fulfilled otherwise. Government
officials of parties to the dispute shall not serve on a technical expert
group. Members of technical expert groups shall serve in their individual
capacities and not as government representatives, nor as representatives
of any organization. Governments or organizations shall therefore not
give them instructions with regard to matters before a technical
expert group.
4. Technical expert groups may consult and seek information and
technical advice from any source they deem appropriate. Before a tech-
nical expert group seeks such information or advice from a source within
the jurisdiction of a Member, it shall inform the government of that
Member. Any Member shall respond promptly and fully to any request
by a technical expert group for such information as the technical expert
group considers necessary and appropriate.
provided to a technical expert group, unless it is of a confidential nature.
Confidential information provided to the technical expert group shall not
be released without formal authorization from the government, organiza-
tion or person providing the information. Where such information is
requested from the technical expert group but release of such infor-
mation by the technical expert group is not authorized, a non-
confidential summary of the information will be provided by the govern-
ment, organization or person supplying the information.
6. The technical expert group shall submit a draft report to the
Members concerned with a view to obtaining their comments, and taking
them into account, as appropriate, in the final report, which shall also be
circulated to the Members concerned when it is submitted to the panel.
Articles 17.4 through 17.7 of the Anti-Dumping Agreement
Article 17
[. . .]
17.4 If the Member that requested consultations considers that the
consultations pursuant to paragraph 3 have failed to achieve a mutually
agreed solution, and if final action has been taken by the administering
authorities of the importing Member to levy definitive anti-dumping
duties or to accept price undertakings, it may refer the matter to the
Dispute Settlement Body (“DSB”). When a provisional measure has a
significant impact and the Member that requested consultations con-
siders that the measure was taken contrary to the provisions of paragraph
1 of Article 7, that Member may also refer such matter to the DSB.
17.5 The DSB shall, at the request of the complaining party, establish a
panel to examine the matter based upon:
(i) a written statement of the Member making the request indicating
how a benefit accruing to it, directly or indirectly, under this Agree-
ment has been nullified or impaired, or that the achieving of the
objectives of the Agreement is being impeded, and
(ii) the facts made available in conformity with appropriate domestic
procedures to the authorities of the importing Member.
17.6 In examining the matter referred to in paragraph 5:
(i) in its assessment of the facts of the matter, the panel shall determine
whether the authorities’ establishment of the facts was proper and
whether their evaluation of those facts was unbiased and objective. If
the establishment of the facts was proper and the evaluation was
unbiased and objective, even though the panel might have reached a
different conclusion, the evaluation shall not be overturned;
(ii) the panel shall interpret the relevant provisions of the Agreement in
accordance with customary rules of interpretation of public inter-
national law. Where the panel finds that a relevant provision of the
Agreement admits of more than one permissible interpretation, the
panel shall find the authorities’ measure to be in conformity with the
Agreement if it rests upon one of those permissible interpretations.
17.7 Confidential information provided to the panel shall not be dis-
closed without formal authorization from the person, body or authority
providing such information. Where such information is requested from the
panel but release of such information by the panel is not authorized, a
non-confidential summary of the information, authorized by the person,
body or authority providing the information, shall be provided.
Articles 19.3 through 19.5 and Annex II.2(f), 3, 9, 21 of

the Customs Valuation Agreement
Article 19
[. . .]
3. The Technical Committee shall provide, upon request, advice and
assistance to Members engaged in consultations.
4. At the request of a party to the dispute, or on its own initiative, a
panel established to examine a dispute relating to the provisions of
this Agreement may request the Technical Committee to carry out an
examination of any questions requiring technical consideration. The
panel shall determine the terms of reference of the Technical Com-
mittee for the particular dispute and set a time period for receipt of
the report of the Technical Committee. The panel shall take into
consideration the report of the Technical Committee. In the event
that the Technical Committee is unable to reach consensus on a
matter referred to it pursuant to this paragraph, the panel should
afford the parties to the dispute an opportunity to present their views
on the matter to the panel.
5. Confidential information provided to the panel shall not be
disclosed without formal authorization from the person, body or
authority providing such information. Where such information is
requested from the panel but release of such information by the panel
is not authorized, a non-confidential summary of this information,
authorized by the person, body or authority providing the informa-
tion, shall be provided.
ANNEX II
TECHNICAL COMMITTEE ON CUSTOMS VALUATION
[. . .]
2. The responsibilities of the Technical Committee shall include the

following:
(f) to carry out an examination of a matter referred to it by a panel under
Article 19 of this Agreement;
General
3. The Technical Committee shall attempt to conclude its work on
specific matters, especially those referred to it by Members, the Com-
mittee or a panel, in a reasonably short period of time. As provided in
paragraph 4 of Article 19, a panel shall set a specific time period for
receipt of a report of the Technical Committee and the Technical
Committee shall provide its report within that period.
Technical Committee Meetings

9. The Technical Committee shall meet as necessary but at least two
times a year. The date of each meeting shall be fixed by the Technical
Committee at its preceding session. The date of the meeting may be
varied either at the request of any member of the Technical Commit-
tee concurred in by a simple majority of the members of the Technical
Committee or, in cases requiring urgent attention, at the request of the
Chairman. Notwithstanding the provisions in sentence 1 of this para-
graph, the Technical Committee shall meet as necessary to consider
matters referred to it by a panel under the provisions of Article 19 of
this Agreement.
Quorum and Voting

21. Each member of the Technical Committee shall have one vote.
A decision of the Technical Committee shall be taken by a majority
comprising at least two thirds of the members present. Regardless
of the outcome of the vote on a particular matter, the Technical
Committee shall be free to make a full report to the Committee
and to the CCC on that matter indicating the different views
expressed in the relevant discussions. Notwithstanding the above
provisions of this paragraph, on matters referred to it by a panel,
the Technical Committee shall take decisions by consensus. Where
no agreement is reached in the Technical Committee on the question
referred to it by a panel, the Technical Committee shall provide a
report detailing the facts of the matter and indicating the views of the
members.
Articles 4.2 through 4.12, 6.6, 7.2 through 7.10, 8.5, 24.4, and 27.7 of the
SCM Agreement, footnote 35 thereto, and Annex V thereof
Article 4
Remedies
[. . .]
4.2 A request for consultations under paragraph 1 shall include a
statement of available evidence with regard to the existence and nature
of the subsidy in question.
4.3 Upon request for consultations under paragraph 1, the Member
believed to be granting or maintaining the subsidy in question shall enter
into such consultations as quickly as possible. The purpose of the con-
sultations shall be to clarify the facts of the situation and to arrive at a
mutually agreed solution.
4.4 If no mutually agreed solution has been reached within 30 days6 of
the request for consultations, any Member party to such consultations
may refer the matter to the Dispute Settlement Body (“DSB”) for the
immediate establishment of a panel, unless the DSB decides by consensus
not to establish a panel.
4.5 Upon its establishment, the panel may request the assistance of the
Permanent Group of Experts7 (referred to in this Agreement as the “PGE”)
with regard to whether the measure in question is a prohibited subsidy. If so
requested, the PGE shall immediately review the evidence with regard to the
existence and nature of the measure in question and shall provide an oppor-
tunity for the Member applying or maintaining the measure to demonstrate
that the measure in question is not a prohibited subsidy. The PGE shall report
its conclusions to the panel within a time-limit determined by the panel. The
PGE’s conclusions on the issue of whether or not the measure in question is a
prohibited subsidy shall be accepted by the panel without modification.
4.6 The panel shall submit its final report to the parties to the dispute.
The report shall be circulated to all Members within 90 days of the date of
the composition and the establishment of the panel’s terms of reference.
4.7 If the measure in question is found to be a prohibited subsidy, the
panel shall recommend that the subsidizing Member withdraw the sub-
sidy without delay. In this regard, the panel shall specify in its recom-
mendation the time-period within which the measure must be
withdrawn.
6
Any time-periods mentioned in this Article may be extended by mutual agreement.
7
As established in Article 24.
4.8 Within 30 days of the issuance of the panel’s report to all Members,
the report shall be adopted by the DSB unless one of the parties to the
dispute formally notifies the DSB of its decision to appeal or the DSB
decides by consensus not to adopt the report.
4.9 Where a panel report is appealed, the Appellate Body shall issue its
decision within 30 days from the date when the party to the dispute
formally notifies its intention to appeal. When the Appellate Body
considers that it cannot provide its report within 30 days, it shall inform
the DSB in writing of the reasons for the delay together with an estimate
of the period within which it will submit its report. In no case shall the
proceedings exceed 60 days. The appellate report shall be adopted by the
DSB and unconditionally accepted by the parties to the dispute unless the
DSB decides by consensus not to adopt the appellate report within
20 days following its issuance to the Members.8
4.10 In the event the recommendation of the DSB is not followed
within the time-period specified by the panel, which shall commence
from the date of adoption of the panel’s report or the Appellate Body’s
report, the DSB shall grant authorization to the complaining Member to
take appropriate9 countermeasures, unless the DSB decides by consensus
to reject the request.
4.11 In the event a party to the dispute requests arbitration under
paragraph 6 of Article 22 of the Dispute Settlement Understanding
(“DSU”), the arbitrator shall determine whether the countermeasures
are appropriate.10
4.12 For purposes of disputes conducted pursuant to this Article,
except for time-periods specifically prescribed in this Article, time-
periods applicable under the DSU for the conduct of such disputes shall
be half the time prescribed therein.
Article 6
Serious Prejudice
[. . .]
6.6 Each Member in the market of which serious prejudice is alleged to
have arisen shall, subject to the provisions of paragraph 3 of Annex V, make
8
If a meeting of the DSB is not scheduled during this period, such a meeting shall be held
for this purpose.
9
This expression is not meant to allow countermeasures that are disproportionate in light
of the fact that the subsidies dealt with under these provisions are prohibited.
10
available to the parties to a dispute arising under Article 7, and to the panel
established pursuant to paragraph 4 of Article 7, all relevant information
that can be obtained as to the changes in market shares of the parties to the
dispute as well as concerning prices of the products involved.
Article 7
Remedies
[. . .]
statement of available evidence with regard to (a) the existence and
nature of the subsidy in question, and (b) the injury caused to the
domestic industry, or the nullification or impairment, or serious preju-
dice19 caused to the interests of the Member requesting consultations.
believed to be granting or maintaining the subsidy practice in question
shall enter into such consultations as quickly as possible. The purpose of
the consultations shall be to clarify the facts of the situation and to arrive
at a mutually agreed solution.
7.4 If consultations do not result in a mutually agreed solution within
60 days,20 any Member party to such consultations may refer the matter
to the DSB for the establishment of a panel, unless the DSB decides by
consensus not to establish a panel. The composition of the panel and its
terms of reference shall be established within 15 days from the date when
it is established.
7.5 The panel shall review the matter and shall submit its final report
to the parties to the dispute. The report shall be circulated to all Members
within 120 days of the date of the composition and establishment of the
panel’s terms of reference.
the report shall be adopted by the DSB21 unless one of the parties to the
19
In the event that the request relates to a subsidy deemed to result in serious prejudice in
terms of paragraph 1 of Article 6, the available evidence of serious prejudice may be
limited to the available evidence as to whether the conditions of paragraph 1 of Article
6 have been met or not.
20
21
for this purpose.
formally notifies its intention to appeal. When the Appellate Body con-
siders that it cannot provide its report within 60 days, it shall inform the
the period within which it will submit its report. In no case shall the
proceedings exceed 90 days. The appellate report shall be adopted by
the DSB and unconditionally accepted by the parties to the dispute unless
the DSB decides by consensus not to adopt the appellate report within
7.8 Where a panel report or an Appellate Body report is adopted in
which it is determined that any subsidy has resulted in adverse effects
to the interests of another Member within the meaning of Article 5,
the Member granting or maintaining such subsidy shall take appro-
priate steps to remove the adverse effects or shall withdraw the
subsidy.
7.9 In the event the Member has not taken appropriate steps to remove
the adverse effects of the subsidy or withdraw the subsidy within six months
from the date when the DSB adopts the panel report or the Appellate Body
report, and in the absence of agreement on compensation, the DSB shall
grant authorization to the complaining Member to take countermeasures,
commensurate with the degree and nature of the adverse effects determined
to exist, unless the DSB decides by consensus to reject the request.
7.10 In the event that a party to the dispute requests arbitration under
paragraph 6 of Article 22 of the DSU, the arbitrator shall determine
whether the countermeasures are commensurate with the degree and
nature of the adverse effects determined to exist.
PART IV: NON-ACTIONABLE SUBSIDIES
Article 8
Identification of Non-Actionable Subsidies
8.5 Upon the request of a Member, the determination by the Commit-
tee referred to in paragraph 4, or a failure by the Committee to make
such a determination, as well as the violation, in individual cases, of the
conditions set out in a notified programme, shall be submitted to binding
22
for this purpose.
arbitration. The arbitration body shall present its conclusions to the
Members within 120 days from the date when the matter was referred
to the arbitration body. Except as otherwise provided in this paragraph,
the DSU shall apply to arbitrations conducted under this paragraph.
Footnote 35
[35] The provisions of Part II or III may be invoked in parallel with the
provisions of Part V; however, with regard to the effects of a particular
subsidy in the domestic market of the importing Member, only one form of
relief (either a countervailing duty, if the requirements of Part V are met, or
a countermeasure under Articles 4 or 7) shall be available. The provisions of
Parts III and V shall not be invoked regarding measures considered non-
actionable in accordance with the provisions of Part IV. However, measures
referred to in paragraph 1(a) of Article 8 may be investigated in order to
determine whether or not they are specific within the meaning of Article 2.
In addition, in the case of a subsidy referred to in paragraph 2 of Article
8 conferred pursuant to a programme which has not been notified in
accordance with paragraph 3 of Article 8, the provisions of Part III or
V may be invoked, but such subsidy shall be treated as non-actionable if it
is found to conform to the standards set forth in paragraph 2 of Article 8.
PART VI: INSTITUTIONS
Article 24
Committee on Subsidies and Countervailing Measures and Subsidiary
Bodies
24.4 The PGE may be consulted by any Member and may give advis-
ory opinions on the nature of any subsidy proposed to be introduced or
currently maintained by that Member. Such advisory opinions will be
confidential and may not be invoked in proceedings under Article 7.
PART VIII: DEVELOPING COUNTRY MEMBERS
Article 27
Special and Differential Treatment of Developing Country Members
27.7 The provisions of Article 4 shall not apply to a developing country
Member in the case of export subsidies which are in conformity with the
provisions of paragraphs 2 through 5. The relevant provisions in such a
case shall be those of Article 7.
ANNEX V
PROCEDURES FOR DEVELOPING INFORMATION
CONCERNING SERIOUS PREJUDICE
1. Every Member shall cooperate in the development of evidence to be

examined by a panel in procedures under paragraphs 4 through 6 of
Article 7. The parties to the dispute and any third-country Member
concerned shall notify to the DSB, as soon as the provisions of paragraph
4 of Article 7 have been invoked, the organization responsible for admin-
istration of this provision within its territory and the procedures to be
used to comply with requests for information.
2. In cases where matters are referred to the DSB under paragraph 4 of
Article 7, the DSB shall, upon request, initiate the procedure to obtain
such information from the government of the subsidizing Member as
necessary to establish the existence and amount of subsidization, the
value of total sales of the subsidized firms, as well as information
necessary to analyze the adverse effects caused by the subsidized prod-
uct.66 This process may include, where appropriate, presentation of
questions to the government of the subsidizing Member and of the
complaining Member to collect information, as well as to clarify and
obtain elaboration of information available to the parties to a dispute
through the notification procedures set forth in Part VII.67
3. In the case of effects in third-country markets, a party to a dispute may
collect information, including through the use of questions to the govern-
ment of the third-country Member, necessary to analyze adverse effects,
which is not otherwise reasonably available from the complaining Member
or the subsidizing Member. This requirement should be administered in
such a way as not to impose an unreasonable burden on the third-country
Member. In particular, such a Member is not expected to make a market or
price analysis specially for that purpose. The information to be supplied is
that which is already available or can be readily obtained by this Member
(for example, most recent statistics which have already been gathered by
relevant statistical services but which have not yet been published, customs
data concerning imports and declared values of the products concerned,
etc.). However, if a party to a dispute undertakes a detailed market analysis
66
In cases where the existence of serious prejudice has to be demonstrated.
67
The information-gathering process by the DSB shall take into account the need to protect
information which is by nature confidential or which is provided on a confidential basis
by any Member involved in this process.
at its own expense, the task of the person or firm conducting such an
analysis shall be facilitated by the authorities of the third-country Member
and such a person or firm shall be given access to all information which is
not normally maintained confidential by the government.
4. The DSB shall designate a representative to serve the function of
facilitating the information-gathering process. The sole purpose of the
representative shall be to ensure the timely development of the infor-
mation necessary to facilitate expeditious subsequent multilateral review
of the dispute. In particular, the representative may suggest ways to
most efficiently solicit necessary information as well as encourage
the cooperation of the parties.
5. The information-gathering process outlined in paragraphs 2 through
4 shall be completed within 60 days of the date on which the matter has
been referred to the DSB under paragraph 4 of Article 7. The information
obtained during this process shall be submitted to the panel established
by the DSB in accordance with the provisions of Part X. This information
should include, inter alia, data concerning the amount of the subsidy in
question (and, where appropriate, the value of total sales of the subsid-
ized firms), prices of the subsidized product, prices of the non-subsidized
product, prices of other suppliers to the market, changes in the supply of
the subsidized product to the market in question and changes in market
shares. It should also include rebuttal evidence, as well as such supple-
mental information as the panel deems relevant in the course of reaching
its conclusions.
6. If the subsidizing and/or third-country Member fail to cooperate in
the information-gathering process, the complaining Member will present
its case of serious prejudice, based on evidence available to it, together
with facts and circumstances of the non-cooperation of the subsidizing
and/or third-country Member. Where information is unavailable due to
non-cooperation by the subsidizing and/or third-country Member, the
panel may complete the record as necessary relying on best information
otherwise available.
7. In making its determination, the panel should draw adverse infer-
ences from instances of non-cooperation by any party involved in the
information-gathering process.
8. In making a determination to use either best information avail-
able or adverse inferences, the panel shall consider the advice of the
DSB representative nominated under paragraph 4 as to the reason-
ableness of any requests for information and the efforts made by
parties to comply with these requests in a cooperative and timely
manner.
9. Nothing in the information-gathering process shall limit the
ability of the panel to seek such additional information it deems
essential to a proper resolution to the dispute, and which was not
adequately sought or developed during that process. However, ordin-
arily the panel should not request additional information to complete
the record where the information would support a particular party’s
position and the absence of that information in the record is the result
of unreasonable non-cooperation by that party in the information-
gathering process.
Paragraph 4 of the GATS Annex on Financial Services and Annex

on Air Transport Services
ANNEX ON FINANCIAL SERVICES
4. Dispute Settlement
Panels for disputes on prudential issues and other financial matters
shall have the necessary expertise relevant to the specific financial service
under dispute.
ANNEX ON AIR TRANSPORT SERVICES
4. The dispute settlement procedures of the Agreement may be invoked

only where obligations or specific commitments have been assumed by the
concerned Members and where dispute settlement procedures in bilateral
and other multilateral agreements or arrangements have been exhausted.

Procedures for the General Agreement on Trade in Services
The Council for Trade in Services,
Taking into account the specific nature of the obligations and specific
commitments of the Agreement, and of trade in services, with respect to
dispute settlement under Articles XXII and XXIII,
Decides as follows:
1. A roster of panelists shall be established to assist in the selection of
panelists.
2. To this end, Members may suggest names of individuals possessing
the qualifications referred to in paragraph 3 for inclusion on the
roster, and shall provide a curricula vitae of their qualifications
including, if applicable, indication of sector-specific expertise.
non-governmental individuals who have experience in issues
related to the General Agreement on Trade in Services and/or trade
in services, including associated regulatory matters. Panelists shall
serve in their individual capacities and not as representatives of any
government or organisation.
4. Panels for disputes regarding sectoral matters shall have the necessary
expertise relevant to the specific services sectors which the dispute
concerns.
5. The Secretariat shall maintain the roster and shall develop proced-
ures for its administration in consultation with the Chairman of the
Council.
Rules of Conduct for the DSU (WT/DSB/RC/1)
RULES OF CONDUCT FOR THE UNDERSTANDING ON RULES

AND PROCEDURES GOVERNING THE SETTLEMENT OF
DISPUTES (WT/DSB/RC/1)
I. Preamble
Members,
Recalling that on 15 April 1994 in Marrakesh, Ministers welcomed the
stronger and clearer legal framework they had adopted for the conduct of
international trade, including a more effective and reliable dispute settle-
ment mechanism;
Recognizing the importance of full adherence to the Understanding
on Rules and Procedures Governing the Settlement of Disputes
(“DSU”) and the principles for the management of disputes applied
under Articles XXII and XXIII of GATT 1947, as further elaborated and
modified by the DSU;
Affirming that the operation of the DSU would be strengthened by
rules of conduct designed to maintain the integrity, impartiality and
confidentiality of proceedings conducted under the DSU thereby enhan-
cing confidence in the new dispute settlement mechanism;
Hereby establish the following Rules of Conduct.
II. Governing Principle
1. Each person covered by these Rules (as defined in paragraph 1 of

Section IV below and hereinafter called “covered person”) shall be
independent and impartial, shall avoid direct or indirect conflicts of
interest and shall respect the confidentiality of proceedings of bodies
pursuant to the dispute settlement mechanism, so that through the
observance of such standards of conduct the integrity and impartiality
of that mechanism are preserved. These Rules shall in no way modify
the rights and obligations of Members under the DSU nor the rules and
procedures therein.
III. Observance of the Governing Principle
1. To ensure the observance of the Governing Principle of these Rules,

each covered person is expected (1) to adhere strictly to the provisions of
the DSU; (2) to disclose the existence or development of any interest,
relationship or matter that that person could reasonably be expected to
know and that is likely to affect, or give rise to justifiable doubts as to,
that person’s independence or impartiality; and (3) to take due care in the
performance of their duties to fulfil these expectations, including through
avoidance of any direct or indirect conflicts of interest in respect of the
subject matter of the proceedings.
2. Pursuant to the Governing Principle, each covered person, shall be
independent and impartial, and shall maintain confidentiality. Moreover,
such persons shall consider only issues raised in, and necessary to fulfil
their responsibilities within, the dispute settlement proceeding and shall
not delegate this responsibility to any other person. Such person shall not
incur any obligation or accept any benefit that would in any way interfere
with, or which could give rise to, justifiable doubts as to the proper
performance of that person’s dispute settlement duties.
IV. Scope
1. These Rules shall apply, as specified in the text, to each person serving:
(a) on a panel; (b) on the Standing Appellate Body; (c) as an arbitrator
pursuant to the provisions mentioned in Annex “1a”; or (d) as an expert
participating in the dispute settlement mechanism pursuant to the provi-
sions mentioned in Annex “1b”. These Rules shall also apply, as specified in
this text and the relevant provisions of the Staff Regulations, to those
members of the Secretariat called upon to assist the panel in accordance
with Article 27.1 of the DSU or to assist in formal arbitration proceedings
pursuant to Annex “1a”; to the Chairman of the Textiles Monitoring Body
(hereinafter called “TMB”) and other members of the TMB Secretariat
called upon to assist the TMB in formulating recommendations, findings
or observations pursuant to the WTO Agreement on Textiles and Clothing;
and to Standing Appellate Body support staff called upon to provide the
Standing Appellate Body with administrative or legal support in accordance
with Article 17.7 of the DSU (hereinafter “Member of the Secretariat or
Standing Appellate Body support staff”), reflecting their acceptance of
established norms regulating the conduct of such persons as international
civil servants and the Governing Principle of these Rules.
2. The application of these Rules shall not in any way impede the
Secretariat’s discharge of its responsibility to continue to respond to
Members’ requests for assistance and information.
3. These Rules shall apply to the members of the TMB to the extent
prescribed in Section V.
V. Textiles Monitoring Body
1. Members of the TMB shall discharge their functions on an ad

personam basis, in accordance with the requirement of Article 8.1 of
the Agreement on Textiles and Clothing, as further elaborated in the
working procedures of the TMB, so as to preserve the integrity and
impartiality of its proceedings.1
VI. Self-Disclosure Requirements by Covered Persons
1. (a) Each person requested to serve on a panel, on the Standing

Appellate Body, as an arbitrator, or as an expert shall, at the
time of the request, receive from the Secretariat these Rules,
1
These working procedures, as adopted by the TMB on 26 July 1995 (G/TMB/R/1),
currently include, inter alia, the following language in paragraph 1.4: “In discharging their
functions in accordance with paragraph 1.1 above, the TMB members and alternates shall
undertake not to solicit, accept or act upon instructions from governments, nor to be
influenced by any other organisations or undue extraneous factors. They shall disclose to
the Chairman any information that they may consider likely to impede their capacity to
discharge their functions on an ad personam basis. Should serious doubts arise during the
deliberations of the TMB regarding the ability of a TMB member to act on an ad personam
basis, they shall be communicated to the Chairman. The Chairman shall deal with the
particular matter as necessary.”
which include an Illustrative List (Annex 2) of examples of the
matters subject to disclosure.
(b) Any member of the Secretariat described in paragraph IV:1,
who may expect to be called upon to assist in a dispute, and
Standing Appellate Body support staff, shall be familiar with
these Rules.
2. As set out in paragraph VI:4 below, all covered persons described in
paragraph VI.1(a) and VI.1(b) shall disclose any information that could
reasonably be expected to be known to them at the time which, coming
within the scope of the Governing Principle of these Rules, is likely to
affect or give rise to justifiable doubts as to their independence or
impartiality. These disclosures include the type of information described
in the Illustrative List, if relevant.
3. These disclosure requirements shall not extend to the identification
of matters whose relevance to the issues to be considered in the proceed-
ings would be insignificant. They shall take into account the need to
respect the personal privacy of those to whom these Rules apply and shall
not be so administratively burdensome as to make it impracticable for
otherwise qualified persons to serve on panels, the Standing Appellate
Body, or in other dispute settlement roles.
4. (a) All panelists, arbitrators and experts, prior to confirmation of
their appointment, shall complete the form at Annex 3 of these
Rules. Such information would be disclosed to the Chair of the
Dispute Settlement Body (“DSB”) for consideration by the
parties to the dispute.
(b) (i) Persons serving on the Standing Appellate Body who,
through rotation, are selected to hear the appeal of a par-
ticular panel case, shall review the factual portion of the
Panel report and complete the form at Annex 3. Such
information would be disclosed to the Standing Appellate
Body for its consideration whether the member concerned
should hear a particular appeal.
(ii) Standing Appellate Body support staff shall disclose any
relevant matter to the Standing Appellate Body, for its
consideration in deciding on the assignment of staff to
assist in a particular appeal.
(c) When considered to assist in a dispute, members of the
Secretariat shall disclose to the Director-General of the
WTO the information required under paragraph VI:2 of
these Rules and any other relevant information required
under the Staff Regulations, including the information
described in the footnote.**
5. During a dispute, each covered person shall also disclose any new
information relevant to paragraph VI:2 above at the earliest time they
become aware of it.
6. The Chair of the DSB, the Secretariat, parties to the dispute, and
other individuals involved in the dispute settlement mechanism shall
maintain the confidentiality of any information revealed through this
disclosure process, even after the panel process and its enforcement
procedures, if any, are completed.
VII. Confidentiality
1. Each covered person shall at all times maintain the confidentiality

of dispute settlement deliberations and proceedings together with any
information identified by a party as confidential. No covered person
shall at any time use such information acquired during such deliber-
ations and proceedings to gain personal advantage or advantage for
others.
** Pending adoption of the Staff Regulations, members of the Secretariat shall make
disclosures to the Director-General in accordance with the following draft provision to
be included in the Staff Regulations:
“When paragraph VI:4(c) of the Rules of Conduct for the DSU is applic-
able, members of the Secretariat would disclose to the Director-General of
the WTO the information required in paragraph VI:2 of those Rules, as
well as any information regarding their participation in earlier formal
consideration of the specific measure at issue in a dispute under any
provisions of the WTO Agreement, including through formal legal advice
under Article 27.2 of the DSU, as well as any involvement with the dispute
as an official of a WTO Member government or otherwise professionally,
before having joined the Secretariat.
The Director-General shall consider any such disclosures in deciding on

the assignment of members of the Secretariat to assist in a dispute.
When the Director-General, in the light of his consideration, including of

available Secretariat resources, decides that a potential conflict of interest is
not sufficiently material to warrant non-assignment of a particular member
of the Secretariat to assist in a dispute, the Director-General shall inform the
panel of his decision and of the relevant supporting information.”
2. During the proceedings, no covered person shall engage in ex parte
contacts concerning matters under consideration. Subject to paragraph
VII:1, no covered person shall make any statements on such proceedings
or the issues in dispute in which that person is participating, until the
report of the panel or the Standing Appellate Body has been derestricted.
VIII. Procedures Concerning Subsequent Disclosure and Possible

Material Violations
1. Any party to a dispute, conducted pursuant to the WTO Agreement,

who possesses or comes into possession of evidence of a material viola-
tion of the obligations of independence, impartiality or confidentiality or
the avoidance of direct or indirect conflicts of interest by covered persons
which may impair the integrity, impartiality or confidentiality of the
dispute settlement mechanism, shall at the earliest possible time and on
a confidential basis, submit such evidence to the Chair of the DSB, the
Director-General or the Standing Appellate Body, as appropriate
according to the respective procedures detailed in paragraphs VIII:5 to
VIII:17 below, in a written statement specifying the relevant facts and
circumstances. Other Members who possess or come into possession of
such evidence, may provide such evidence to the parties to the dispute in
the interest of maintaining the integrity and impartiality of the dispute
settlement mechanism.
2. When evidence as described in paragraph VIII:1 is based on an
alleged failure of a covered person to disclose a relevant interest, rela-
tionship or matter, that failure to disclose, as such, shall not be a suffi-
cient ground for disqualification unless there is also evidence of a
material violation of the obligations of independence, impartiality, confi-
dentiality or the avoidance of direct or indirect conflicts of interests and
that the integrity, impartiality or confidentiality of the dispute settlement
mechanism would be impaired thereby.
3. When such evidence is not provided at the earliest practicable time,
the party submitting the evidence shall explain why it did not do so
earlier and this explanation shall be taken into account in the procedures
initiated in paragraph VIII:1.
4. Following the submission of such evidence to the Chair of the DSB,
the Director-General of the WTO or the Standing Appellate Body, as
specified below, the procedures outlined in paragraphs VIII:5 to VIII:17
below shall be completed within fifteen working days.
Panelists, Arbitrators, Experts
5. If the covered person who is the subject of the evidence is a panelist,
an arbitrator or an expert, the party shall provide such evidence to the
Chair of the DSB.
6. Upon receipt of the evidence referred to in paragraphs VIII:1 and
VIII:2, the Chair of the DSB shall forthwith provide the evidence to
the person who is the subject of such evidence, for consideration by
the latter.
7. If, after having consulted with the person concerned, the matter is
not resolved, the Chair of the DSB shall forthwith provide all the
evidence, and any additional information from the person concerned,
to the parties to the dispute. If the person concerned resigns, the Chair of
the DSB shall inform the parties to the dispute and, as the case may be,
the panelists, the arbitrator(s) or experts.
8. In all cases, the Chair of the DSB, in consultation with the Director-
General and a sufficient number of Chairs of the relevant Council or
Councils to provide an odd number, and after having provided a reason-
able opportunity for the views of the person concerned and the parties to
the dispute to be heard, would decide whether a material violation of
these Rules as referred to in paragraphs VIII:1 and VIII:2 above has
occurred. Where the parties agree that a material violation of these Rules
has occurred, it would be expected that, consistent with maintaining the
integrity of the dispute settlement mechanism, the disqualification of the
person concerned would be confirmed.
9. The person who is the subject of the evidence shall continue to
participate in the consideration of the dispute unless it is decided that a
material violation of these Rules has occurred.
10. The Chair of the DSB shall thereafter take the necessary steps for
the appointment of the person who is the subject of the evidence to be
formally revoked, or excused from the dispute as the case may be, as of
that time.
Secretariat
11. If the covered person who is the subject of the evidence is a
member of the Secretariat, the party shall only provide the evidence
to the Director-General of the WTO, who shall forthwith provide the
evidence to the person who is the subject of such evidence and
shall further inform the other party or parties to the dispute and
the panel.
12. It shall be for the Director-General to take any appropriate action
in accordance with the Staff Regulations.***
13. The Director-General shall inform the parties to the dispute, the
panel and the Chair of the DSB of his decision, together with relevant
supporting information.

14. If the covered person who is the subject of the evidence is a member of
the Standing Appellate Body or of the Standing Appellate Body support staff,
the party shall provide the evidence to the other party to the dispute and the
evidence shall thereafter be provided to the Standing Appellate Body.
VIII:2 above, the Standing Appellate Body shall forthwith provide it to the
person who is the subject of such evidence, for consideration by the latter.
16. It shall be for the Standing Appellate Body to take any appropriate
action after having provided a reasonable opportunity for the views of the
person concerned and the parties to the dispute to be heard.
17. The Standing Appellate Body shall inform the parties to the dispute
and the Chair of the DSB of its decision, together with relevant support-
ing information.
***
18. Following completion of the procedures in paragraphs VIII:5 to
VIII:17, if the appointment of a covered person, other than a member of
the Standing Appellate Body, is revoked or that person is excused or resigns,
the procedures specified in the DSU for initial appointment shall be
followed for appointment of a replacement, but the time periods shall be
half those specified in the DSU.**** The member of the Standing Appellate
Body who, under that Body’s rules, would next be selected through rotation
to consider the dispute, would automatically be assigned to the appeal. The
panel, members of the Standing Appellate Body hearing the appeal, or the
arbitrator, as the case may be, may then decide after consulting with the
parties to the dispute, on any necessary modifications to their working
procedures or proposed timetable.
*** Pending adoption of the Staff Regulations, the Director-General would act in accord-
ance with the following draft provision for the Staff Regulations: “If paragraph VIII:11
of the Rules of Conduct for the DSU governing the settlement of disputes is invoked,
the Director-General shall consult with the person who is the subject of the evidence
and the panel and shall, if necessary, take appropriate disciplinary action.”
**** Appropriate adjustments would be made in the case of appointments pursuant to the
Agreement on Subsidies and Countervailing Measures.
19. All covered persons and Members concerned shall resolve matters
involving possible material violations of these Rules as expeditiously as
possible so as not to delay the completion of proceedings, as provided in
the DSU.
20. Except to the extent strictly necessary to carry out this decision, all
information concerning possible or actual material violations of these
Rules shall be kept confidential.
IX. Review
1. These Rules of Conduct shall be reviewed within two years of their
adoption and a decision shall be taken by the DSB as to whether to
continue, modify or terminate these Rules.
ANNEX 1A
Arbitrators acting pursuant to the following provisions:

– Articles 21.3(c); 22.6 and 22.7; 26.1(c) and 25 of the DSU;
– Article 8.5 of the Agreement on Subsidies and Countervailing
Measures;
– Articles XXI.3 and XXII.3 of the General Agreement on Trade in Services.
ANNEX 1B
Experts advising or providing information pursuant to the following

provisions:
– Article 13.1; 13.2 of the DSU;
– Article 4.5 of the Agreement on Subsidies and Countervailing Measures;
– Article 11.2 of the Agreement on the Application of Sanitary and
Phytosanitary Measures;
– Article 14.2; 14.3 of the Agreement on Technical Barriers to Trade.
ANNEX 2
ILLUSTRATIVE LIST OF INFORMATION TO BE DISCLOSED
This list contains examples of information of the type that a person called
upon to serve in a dispute should disclose pursuant to the Rules of Conduct
for the Understanding on Rules and Procedures Governing the Settlement
of Disputes.
Each covered person, as defined in Section IV:1 of these Rules of Conduct
has a continuing duty to disclose the information described in Section
VI:2 of these Rules which may include the following:
(a) financial interests (e.g. investments, loans, shares, interests, other
debts); business interests (e.g. directorship or other contractual inter-
ests); and property interests relevant to the dispute in question;
(b) professional interests (e.g. a past or present relationship with private
clients, or any interests the person may have in domestic or inter-
national proceedings, and their implications, where these involve
issues similar to those addressed in the dispute in question);
(c) other active interests (e.g. active participation in public interest
groups or other organisations which may have a declared agenda
relevant to the dispute in question);
(d) considered statements of personal opinion on issues relevant to the
dispute in question (e.g. publications, public statements);
(e) employment or family interests (e.g. the possibility of any indirect
advantage or any likelihood of pressure which could arise from their
employer, business associates or immediate family members).
ANNEX 3
Dispute Number: ________

DISCLOSURE FORM
I have read the Understanding on Rules and Procedures Governing the Settlement of
Disputes (DSU) and the Rules of Conduct for the DSU. I understand my continuing
duty, while participating in the dispute settlement mechanism, and until such time as
the Dispute Settlement Body (DSB) makes a decision on adoption of a report relating to
the proceeding or notes its settlement, to disclose herewith and in future any infor-
mation likely to affect my independence or impartiality, or which could give rise to
justifiable doubts as to the integrity and impartiality of the dispute settlement mechan-
ism; and to respect my obligations regarding the confidentiality of dispute settlement
proceedings.
Signed: Dated:
12

Article XXII
Consultation
Article XXIII
191

Article XXII
Consultation
3
Article XXIII
11
Article 64
Dispute Settlement

Article 1
Article 2
Administration
covered agreements.
Article 3
General Provisions
modified herein.
agreements.
1
Article 4
Consultations
former.3
2
3
the matter.
4
Article 5

Article 6
Article 7
the panel:
5
meeting is given.
Article 8
Member.
otherwise.
6
markets.
covered agreements.
request.
country Member.
Article 9
whenever feasible.
harmonized.
Article 10
Third Parties
Article 11
Function of Panels
Article 12
Panel Procedures
submissions.
Article 13
information.
Article 14
Confidentiality
statements made.
be anonymous.
Article 15
writing.
Article 12.
Article 16
Members.
fully recorded.
7
Article 17
Appellate Review
Appellate Body.
90 days.

statements made.

Article 18
Appellate Body.
8
public.
Article 19
recommendations.
Article 20
9
10
Article 21
of all Members.
approval,
11
12
13
a group.
Article 22
covered agreements.
to that party;
such sectors;14
on TRIPS.
or impairment.
14
the request.
15
a group.
16
been implemented.
Article 23
17
shall prevail.
of time.
Article 24
these procedures.
Article 25
Arbitration
Article 26

following:
XXIII of GATT 1994
also apply:
paragraph;
Article 27
support.
this regard.
Appendix 1

Rights
ment of Disputes
Appendix 2


Measures
8.1 through 8.12
Trade
Services
GATS
Appendix 3
Working Procedures
public.
writing.
with the parties:
parties:
report:

Appendix 4
appropriate.

Article 11
[. . .]

Article 14
[. . .]
Annex 2.
[. . .]
ANNEX 2

expert group.
Article 17
[. . .]

Article 19
[. . .]
ANNEX II
[. . .]

following:
General

this Agreement.
Quorum and Voting

members.
Article 4
Remedies
[. . .]
withdrawn.
6
7
are appropriate.10
Article 6
Serious Prejudice
[. . .]
8
for this purpose.
9
10
Article 7
Remedies
[. . .]
it is established.
19
20
21
for this purpose.
subsidy.
Article 8
22
for this purpose.
Footnote 35
Article 24
Bodies
Article 27
ANNEX V

66
67
its conclusions.
manner.
gathering process.

under dispute.


Decides as follows:
panelists.
concerns.
Council.

I. Preamble
Members,
ment mechanism;

procedures therein.

IV. Scope


1
these Rules.
become aware of it.

others.



Material Violations

Chair of the DSB.
the latter.
that time.
Secretariat
the panel.

ing information.
***
the DSU.
IX. Review
ANNEX 1A

Measures;
ANNEX 1B

provisions:
ANNEX 2
of Disputes.
ANNEX 3

DISCLOSURE FORM
proceedings.
Signed: Dated:
12

Article XXII
Consultation
Article XXIII
191

Article XXII
Consultation
3
Article XXIII
11
Article 64
Dispute Settlement

Article 1
Article 2
Administration
covered agreements.
Article 3
General Provisions
modified herein.
agreements.
1
Article 4
Consultations
former.3
2
3
the matter.
4
Article 5

Article 6
Article 7
the panel:
5
meeting is given.
Article 8
Member.
otherwise.
6
markets.
covered agreements.
request.
country Member.
Article 9
whenever feasible.
harmonized.
Article 10
Third Parties
Article 11
Function of Panels
Article 12
Panel Procedures
submissions.
Article 13
information.
Article 14
Confidentiality
statements made.
be anonymous.
Article 15
writing.
Article 12.
Article 16
Members.
fully recorded.
7
Article 17
Appellate Review
Appellate Body.
90 days.

statements made.

Article 18
Appellate Body.
8
public.
Article 19
recommendations.
Article 20
9
10
Article 21
of all Members.
approval,
11
12
13
a group.
Article 22
covered agreements.
to that party;
such sectors;14
on TRIPS.
or impairment.
14
the request.
15
a group.
16
been implemented.
Article 23
17
shall prevail.
of time.
Article 24
these procedures.
Article 25
Arbitration
Article 26

following:
XXIII of GATT 1994
also apply:
paragraph;
Article 27
support.
this regard.
Appendix 1

Rights
ment of Disputes
Appendix 2


Measures
8.1 through 8.12
Trade
Services
GATS
Appendix 3
Working Procedures
public.
writing.
with the parties:
parties:
report:

Appendix 4
appropriate.

Article 11
[. . .]

Article 14
[. . .]
Annex 2.
[. . .]
ANNEX 2

expert group.
Article 17
[. . .]

Article 19
[. . .]
ANNEX II
[. . .]

following:
General

this Agreement.
Quorum and Voting

members.
Article 4
Remedies
[. . .]
withdrawn.
6
7
are appropriate.10
Article 6
Serious Prejudice
[. . .]
8
for this purpose.
9
10
Article 7
Remedies
[. . .]
it is established.
19
20
21
for this purpose.
subsidy.
Article 8
22
for this purpose.
Footnote 35
Article 24
Bodies
Article 27
ANNEX V

66
67
its conclusions.
manner.
gathering process.

under dispute.


Decides as follows:
panelists.
concerns.
Council.

I. Preamble
Members,
ment mechanism;

procedures therein.

IV. Scope


1
these Rules.
become aware of it.

others.



Material Violations

Chair of the DSB.
the latter.
that time.
Secretariat
the panel.

ing information.
***
the DSU.
IX. Review
ANNEX 1A

Measures;
ANNEX 1B

provisions:
ANNEX 2
of Disputes.
ANNEX 3

DISCLOSURE FORM
proceedings.
Signed: Dated:
12

Article XXII
Consultation
Article XXIII
191

Article XXII
Consultation
3
Article XXIII
11
Article 64
Dispute Settlement

Article 1
Article 2
Administration
covered agreements.
Article 3
General Provisions
modified herein.
agreements.
1
Article 4
Consultations
former.3
2
3
the matter.
4
Article 5

Article 6
Article 7
the panel:
5
meeting is given.
Article 8
Member.
otherwise.
6
markets.
covered agreements.
request.
country Member.
Article 9
whenever feasible.
harmonized.
Article 10
Third Parties
Article 11
Function of Panels
Article 12
Panel Procedures
submissions.
Article 13
information.
Article 14
Confidentiality
statements made.
be anonymous.
Article 15
writing.
Article 12.
Article 16
Members.
fully recorded.
7
Article 17
Appellate Review
Appellate Body.
90 days.

statements made.

Article 18
Appellate Body.
8
public.
Article 19
recommendations.
Article 20
9
10
Article 21
of all Members.
approval,
11
12
13
a group.
Article 22
covered agreements.
to that party;
such sectors;14
on TRIPS.
or impairment.
14
the request.
15
a group.
16
been implemented.
Article 23
17
shall prevail.
of time.
Article 24
these procedures.
Article 25
Arbitration
Article 26

following:
XXIII of GATT 1994
also apply:
paragraph;
Article 27
support.
this regard.
Appendix 1

Rights
ment of Disputes
Appendix 2


Measures
8.1 through 8.12
Trade
Services
GATS
Appendix 3
Working Procedures
public.
writing.
with the parties:
parties:
report:

Appendix 4
appropriate.

Article 11
[. . .]

Article 14
[. . .]
Annex 2.
[. . .]
ANNEX 2

expert group.
Article 17
[. . .]

Article 19
[. . .]
ANNEX II
[. . .]

following:
General

this Agreement.
Quorum and Voting

members.
Article 4
Remedies
[. . .]
withdrawn.
6
7
are appropriate.10
Article 6
Serious Prejudice
[. . .]
8
for this purpose.
9
10
Article 7
Remedies
[. . .]
it is established.
19
20
21
for this purpose.
subsidy.
Article 8
22
for this purpose.
Footnote 35
Article 24
Bodies
Article 27
ANNEX V

66
67
its conclusions.
manner.
gathering process.

under dispute.


Decides as follows:
panelists.
concerns.
Council.

I. Preamble
Members,
ment mechanism;

procedures therein.

IV. Scope


1
these Rules.
become aware of it.

others.



Material Violations

Chair of the DSB.
the latter.
that time.
Secretariat
the panel.

ing information.
***
the DSU.
IX. Review
ANNEX 1A

Measures;
ANNEX 1B

provisions:
ANNEX 2
of Disputes.
ANNEX 3

DISCLOSURE FORM
proceedings.
Signed: Dated:
12

Article XXII
Consultation
Article XXIII
191

Article XXII
Consultation
3
Article XXIII
11
Article 64
Dispute Settlement

Article 1
Article 2
Administration
covered agreements.
Article 3
General Provisions
modified herein.
agreements.
1
Article 4
Consultations
former.3
2
3
the matter.
4
Article 5

Article 6
Article 7
the panel:
5
meeting is given.
Article 8
Member.
otherwise.
6
markets.
covered agreements.
request.
country Member.
Article 9
whenever feasible.
harmonized.
Article 10
Third Parties
Article 11
Function of Panels
Article 12
Panel Procedures
submissions.
Article 13
information.
Article 14
Confidentiality
statements made.
be anonymous.
Article 15
writing.
Article 12.
Article 16
Members.
fully recorded.
7
Article 17
Appellate Review
Appellate Body.
90 days.

statements made.

Article 18
Appellate Body.
8
public.
Article 19
recommendations.
Article 20
9
10
Article 21
of all Members.
approval,
11
12
13
a group.
Article 22
covered agreements.
to that party;
such sectors;14
on TRIPS.
or impairment.
14
the request.
15
a group.
16
been implemented.
Article 23
17
shall prevail.
of time.
Article 24
these procedures.
Article 25
Arbitration
Article 26

following:
XXIII of GATT 1994
also apply:
paragraph;
Article 27
support.
this regard.
Appendix 1

Rights
ment of Disputes
Appendix 2


Measures
8.1 through 8.12
Trade
Services
GATS
Appendix 3
Working Procedures
public.
writing.
with the parties:
parties:
report:

Appendix 4
appropriate.

Article 11
[. . .]

Article 14
[. . .]
Annex 2.
[. . .]
ANNEX 2

expert group.
Article 17
[. . .]

Article 19
[. . .]
ANNEX II
[. . .]

following:
General

this Agreement.
Quorum and Voting

members.
Article 4
Remedies
[. . .]
withdrawn.
6
7
are appropriate.10
Article 6
Serious Prejudice
[. . .]
8
for this purpose.
9
10
Article 7
Remedies
[. . .]
it is established.
19
20
21
for this purpose.
subsidy.
Article 8
22
for this purpose.
Footnote 35
Article 24
Bodies
Article 27
ANNEX V

66
67
its conclusions.
manner.
gathering process.

under dispute.


Decides as follows:
panelists.
concerns.
Council.

I. Preamble
Members,
ment mechanism;

procedures therein.

IV. Scope


1
these Rules.
become aware of it.

others.



Material Violations

Chair of the DSB.
the latter.
that time.
Secretariat
the panel.

ing information.
***
the DSU.
IX. Review
ANNEX 1A

Measures;
ANNEX 1B

provisions:
ANNEX 2
of Disputes.
ANNEX 3

DISCLOSURE FORM
proceedings.
Signed: Dated:
13
Annex III: Examples of Panel Working Procedures
Annex III.A: Sample of Panel Working Procedures

(Including Expert Consultation Process)
Working Procedures adopted by the Panel in DS430 India –

Agricultural Products (WT/DS430/R/Add.1/(Annex A-1))
1. In its proceedings, the Panel shall follow the relevant provisions of
the Understanding on Rules and Procedures Governing the Settlement of
Disputes (DSU). In addition, the following Working Procedures
shall apply.
General
2. The deliberations of the Panel and the documents submitted to it
shall be kept confidential. Nothing in the DSU or in these Working
Procedures shall preclude a party to the dispute (hereafter “party”) from
disclosing statements of its own positions to the public. Members shall
treat as confidential information submitted to the Panel by another
Member which the submitting Member has designated as confidential.
Where a party submits a confidential version of its written submissions
to the Panel, it shall also, upon request of a Member, provide a non-
confidential summary of the information contained in its submissions
that could be disclosed to the public.
3. Upon indication from any party, at the latest on the first substantive
meeting, that it shall provide information that requires protection add-
itional to that provided for under these Working Procedures, the Panel
shall, after consultation with the parties, decide whether to adopt appro-
priate additional procedures. Exceptions to this procedure shall be
granted upon a showing of good cause.
4. The Panel shall meet in closed session. The parties, and Members
having notified their interest in the dispute to the Dispute Settlement
Body in accordance with Article 10 of the DSU (hereafter “third
250
annex iii: examples of panel working procedures 251
parties”), shall be present at the meetings only when invited by
the Panel to appear before it.
5. Each party and third party has the right to determine the compos-
ition of its own delegation when meeting with the Panel. Each party and
third party shall have the responsibility for all members of its own
delegation and shall ensure that each member of such delegation acts
in accordance with the DSU and these Working Procedures, particularly
with regard to the confidentiality of the proceedings.
Submissions
6. Before the first substantive meeting of the Panel with the parties,
each party shall submit a written submission in which it presents the facts
of the case and its arguments, in accordance with the timetable adopted
by the Panel. Each party shall also submit to the Panel, prior to the
second substantive meeting of the Panel, a written rebuttal, in accordance
with the timetable adopted by the Panel.
7. A party shall submit any request for a preliminary ruling at the
earliest possible opportunity and in any event no later than in its first
written submission to the Panel. If the [complainant] requests such a
ruling, [respondent] shall submit its response to the request in its first
written submission. If [respondent] requests such a ruling, the [com-
plainant] shall submit its response to the request prior to the first
substantive meeting of the Panel, at a time to be determined by the Panel
in light of the request. Exceptions to this procedure shall be granted upon
a showing of good cause.
8. Each party shall submit all factual evidence to the Panel no later
than during the first substantive meeting, except with respect to evidence
necessary for purposes of rebuttal, answers to questions or comments on
answers provided by the other party. Exceptions to this procedure shall
be granted upon a showing of good cause. Where such exception has
been granted, the Panel shall accord the other party a period of time for
comment, as appropriate, on any new factual evidence submitted after
the first substantive meeting.
9. Where the original language of exhibits is not a WTO working
language, the submitting party or third party shall submit a translation
into the WTO working language of the submission at the same time. The
Panel may grant reasonable extensions of time for the translation of such
exhibits upon a showing of good cause. Any objection as to the accuracy
of a translation should be raised in writing as promptly as possible. Any
objection shall be accompanied by a detailed explanation of the grounds
of objection and an alternative translation.
10. In order to facilitate the work of the Panel, each party and third
party is invited to make its submissions in accordance with the WTO
Editorial Guide for Panel Submissions attached as Annex 1, to the extent
that it is practical to do so.
11. To facilitate the maintenance of the record of the dispute and
maximize the clarity of submissions, each party and third party shall
sequentially number its exhibits throughout the course of the dispute. For
example, exhibits submitted by the [complainant] could be numbered
[sequential manner]. If the last exhibit in connection with the first
submission was numbered [. . .-5], the first exhibit of the next submission
thus would be numbered [. . .-6].
Questions
12. The Panel may at any time pose questions to the parties and third
parties, orally in the course of a meeting or in writing.
Substantive meetings
13. Each party shall provide to the Panel the list of members of its
delegation in advance of each meeting with the Panel and no later than
5.30 p.m. the previous working day.
14. The first substantive meeting of the Panel with the parties shall be
conducted as follows:
a. The Panel shall invite the [complainant] to make an opening state-
ment to present its case first. Subsequently, the Panel shall invite
[respondent] to present its point of view. Before each party takes the
floor, it shall provide the Panel and other participants at the meeting
with a provisional written version of its statement. In the event that
interpretation is needed, each party shall provide additional copies to
the interpreters. Each party shall make available to the Panel and the
other party the final version of its statement, preferably at the end of
the meeting, and in any event no later than 5.30 p.m. on the first
working day following the meeting.
b. After the conclusion of the statements, the Panel shall give each party
the opportunity to ask each other questions or make comments,
through the Panel. Each party shall have an opportunity to orally
answer these questions. Each party shall send in writing, within a
timeframe to be determined by the Panel, any questions to the other
party to which it wishes to receive a response in writing. Each party
shall be invited to respond in writing to the other party’s questions
within a deadline to be determined by the Panel.
c. The Panel may subsequently pose questions to the parties. The Panel
shall send in writing, within a timeframe to be determined by it, any
questions to the parties to which it wishes to receive a response in
writing. Each party shall be invited to respond in writing to such
questions within a deadline to be determined by the Panel.
d. Once the questioning has concluded, the Panel shall afford each party
an opportunity to present a brief closing statement, with the [com-
plainant] presenting its statement first.
15. The second substantive meeting of the Panel with the parties shall
be conducted as follows:
a. The Panel shall ask [respondent] if it wishes to avail itself of the right
to present its case first. If so, the Panel shall invite [respondent] to
present its opening statement, followed by the [complainant]. If
[respondent] chooses not to avail itself of that right, the Panel shall
invite the [complainant] to present its opening statement first. Before
each party takes the floor, it shall provide the Panel and other partici-
pants at the meeting with a provisional written version of its state-
ment. In the event that interpretation is needed, each party shall
provide additional copies to the interpreters. Each party shall make
available to the Panel and the other party the final version of its
statement, preferably at the end of the meeting, and in any event no
later than 5.30 p.m. of the first working day following the meeting.
the opportunity to ask questions or make comments, through the
Panel. Each party shall have an opportunity to answer orally these
questions. Each party shall send in writing, within a timeframe to be
determined by the Panel, any questions to the other party to which it
wishes to receive a response in writing. Each party shall be invited to
respond in writing to the other party’s questions within a deadline to
be determined by the Panel.
d. Once the questioning has concluded, the Panel shall afford each party an
opportunity to present a brief closing statement, with the party that
presented its opening statement first, presenting its closing statement first.
Third parties
16. The Panel shall invite each third party to transmit to the Panel a
written submission prior to the first substantive meeting of the Panel
with the parties, in accordance with the timetable adopted by the Panel.
17. Each third party shall also be invited to present its views orally
during a session of this first substantive meeting, set aside for that
purpose. Each third party shall provide to the Panel the list of members
of its delegation in advance of this session and no later than 5.30 p.m. the
previous working day.
18. The third-party session shall be conducted as follows:
a. All third parties may be present during the entirety of this session.
b. The Panel shall first hear the arguments of the third parties in
alphabetical order. Third parties present at the third-party session
and intending to present their views orally at that session, shall
provide the Panel, the parties and other third parties with provisional
written versions of their statements before they take the floor. In the
event that interpretation is needed, each third party shall provide
additional copies to the interpreters. Third parties shall make available
to the Panel, the parties and other third parties the final versions of
their statements, preferably at the end of the session, and in any event
no later than 5.30 p.m. of the first working day following the session.
c. After the third parties have made their statements, the parties may be
given the opportunity, through the Panel, to ask the third parties
questions for clarification on any matter raised in the third parties’
submissions or statements. Each party shall send in writing, within a
timeframe to be determined by the Panel, any questions to a third
party to which it wishes to receive a response in writing. Each third
party shall be invited to respond in writing to these questions within a
deadline to be determined by the Panel.
d. The Panel may subsequently pose questions either orally or in writing
to the third parties. The Panel shall send in writing, within a time-
frame to be determined by it, any questions to the third parties to
which it wishes to receive a response in writing. Each third party shall
be invited to respond in writing to such questions within a deadline to
Panel consultation with experts
19. In the course of the proceedings, the Panel shall determine if there is
a need to seek expert advice. In addressing matters concerning scientific
and/or technical advice from experts,1 the Panel shall have regard to the
provisions of the DSU and may have regard, inter alia, to the objective of
conducting these proceedings in an efficient and timely manner and at a
reasonable cost. In such a case, the procedures described below shall apply.
20. Consistent with Article 13 of the DSU and Article 11.2 of the SPS
Agreement, the Panel may seek expert advice from experts and from
international organizations, as appropriate.
21. The Panel may ask any relevant institutions, as well as the parties,
for suggestions of possible experts. Parties shall not engage in direct
contact with the individuals suggested, for the purpose of this dispute.
22. The Panel shall provide the parties with a list of possible experts,
their curricula vitae and declarations of potential conflicts of interest. In
this declaration, each potential expert will be instructed to disclose infor-
mation which may include the following:
a. financial interests (e.g. investments, loans, shares, interests, other
b. professional interests (e.g. a past or present relationship with private
c. other active interests (e.g. active participation in public interest groups
or other organizations which may have a declared agenda relevant to
the dispute in question);
d. considered statements of personal opinion on issues relevant to the
e. employment or family interests (e.g. the possibility of any indirect
employer, business associates or immediate family members); and
f. any other relevant information.
23. Parties shall have the opportunity to comment and to make known
any compelling objections to any particular expert.
1
For the purpose of these Working Procedures, the term “expert” may be used to refer to
individuals, institutions, research bodies, or international organizations.
24. The Panel shall select the experts on the basis of their qualifications
and the need for specialized scientific expertise, and shall not select
experts who have declared a conflict of interest. The Panel shall decide
the number of experts in light of the number and type of issues on which
advice shall be sought, as well as of the different areas on which each
expert can provide expertise.
25. The Panel shall inform the parties of the experts and international
organizations it has decided to consult, in accordance with the timetable
adopted by the Panel. Experts shall act in their personal capacities and
not as representatives of any entity. However, should the Panel seek
advice from an international organization, the advice received shall be
deemed to be received from the international organization and not the
individual staff members or representatives of the international organiza-
tion. Moreover, any staff members of such international organization
that attend a meeting with the Panel, shall be deemed to do so in a
representative capacity, on behalf of the respective international
organization.
26. The experts shall be subject to the DSB’s Rules of Conduct for the
Understanding on Rules and Procedures Governing the Settlement of
Disputes (WT/DSB/RC/1), a copy of which shall be provided to them by
the Panel.
27. The Panel shall prepare written questions for the experts. The
experts shall be requested to provide responses in writing within a time-
period specified by the Panel. The experts shall be requested to respond
only to questions on which they have sufficient knowledge. The responses
of experts shall be part of the Panel’s record but shall not be attached to the
Panel report as annexes. Copies of the responses shall be provided by the
Panel to the parties, in accordance with the timetable adopted by the Panel.
The parties shall have the opportunity to comment in writing on the
responses from the experts and to pose written questions to the experts
in advance of the meeting, to be answered orally during such meeting.
28. The Panel may provide the experts, on a confidential basis, with
relevant parts of the parties’ submissions, including exhibits, as well as
with any additional information deemed necessary. The experts shall
have the opportunity to request, through the Panel, additional factual
information or clarifications from the parties, if it shall aid them in
answering the Panel’s questions.
29. The Panel may schedule a meeting with the experts, prior to the
second substantive meeting with the parties. Prior to the Panel’s meeting
with the experts, the Panel shall ensure that:
a. the parties’ comments on the experts’ responses are provided to all
experts;
b. each expert is provided with the other experts’ responses to the Panel’s
questions; and
c. each expert is provided with advance questions from the parties to the
experts, as described in paragraph 30.b below, if any.
30. The Panel’s meeting with the experts would be conducted as
follows:
a. The Panel shall invite each expert to make an opening statement. This
statement may include, but is not limited to, any clarification of their
written responses to the Panel questions requested by the Panel or the
parties, or information complementary to these responses. The experts
that intend to make an opening statement shall provide the Panel with
written versions of their statements, before they take the floor. The
Panel shall make available, to the other experts, and to the parties,
each expert’s written statement, no later than 5.30 p.m. on the first
working day following the meeting.
the opportunity to ask the experts questions or make comments
through the Panel. To facilitate this, each party may send in writing
in advance of the meeting, within a timeframe to be determined by the
Panel, any questions to the experts to which it wishes to receive an
oral response at the Panel’s meeting with the experts. Each expert shall
be invited to respond orally to the parties’ questions and to react to
the parties’ comments.
c. The Panel may subsequently pose questions to the experts. The expert
to whom the question is addressed shall be invited to respond orally to
the Panel’s questions.
d. Once the questioning has concluded, the Panel shall afford each
expert an opportunity to present a brief closing statement.
e. The Panel may schedule additional meetings with the experts if
necessary.
31. The Secretariat shall prepare a compilation of the experts’ written
replies to the Panel’s questions, as well as a full transcript of any meeting
with the experts for inclusion in the record of the Panel proceeding. This
transcript shall not be annexed to the Panel report. The experts shall be
given an opportunity to verify, before the texts are finalized, the drafts of
these texts to ensure that they accurately reflect the information they
provided. The parties shall likewise be given an opportunity to verify that
the transcript of any meeting with the experts accurately reflects the
parties’ own interventions.
Descriptive part
32. The description of the arguments of the parties and third parties in
the descriptive part of the Panel report shall consist of the executive
summaries provided by the parties and third parties, which shall be
annexed as addenda to the report. These executive summaries shall not
in any way serve as a substitute for the submissions of the parties and
third parties in the Panel’s examination of the case.
33. Each party shall submit an executive summary of its arguments as
presented in its written submissions and oral statements. The parties
shall submit the executive summaries of their written submissions at the
latest 10 calendar days following the delivery to the Panel of the written
submission. The parties shall submit the executive summaries of their
oral statements, at the latest 10 calendar days following the deadline for
submission of responses to questions from the Panel. The parties may
also include their responses to questions in their executive summaries.
The Panel will not summarize in the descriptive part of its report, or
annex to its report, the parties’ responses to questions. The total number
of pages of the executive summaries, all four parts combined, shall not
exceed 30 pages. Parties can request permission to file longer summaries
upon showing of good cause.
34. The third parties shall submit executive summaries of their written
submissions and oral statements within 7 calendar days from the date of
the third-party session. The summary to be provided by each third party
shall incorporate its written submissions and oral statement and shall not
exceed 5 pages in total.
Interim review
35. Following issuance of the interim report, each party may submit a
written request to review precise aspects of the interim report and request
a further meeting with the Panel, in accordance with the timetable
adopted by the Panel. The right to request such a meeting shall be
exercised no later than at the time the written request for review is
submitted.
36. In the event that no further meeting with the Panel is requested,
each party may submit written comments on the other party’s written
request for review, in accordance with the timetable adopted by the
Panel. Such comments shall be limited to commenting on the other
party’s written request for review.
37. The interim report shall be kept strictly confidential and shall not
be disclosed.
Service of documents
38. The following procedures regarding service of documents
shall apply:
a. Each party and third party shall submit all documents to the Panel by
filing them with the DS Registry (office No. 2047).
b. Each party and third party shall file 6 paper copies of all documents it
submits to the Panel. However, when exhibits are provided on CD-
ROMS/DVDs, 4 CD-ROMS/DVDs and 6 paper copies of those
exhibits shall be filed. The DS Registrar shall stamp the documents
with the date and time of the filing. The paper version shall constitute
the official version for the purposes of the record of the dispute.
c. Each party and third party shall also provide an electronic copy of all
documents it submits to the Panel at the same time as the paper
versions, preferably in Microsoft Word format, either on a CD-
ROM, a DVD or as an e-mail attachment. If the electronic copy is
provided by e-mail, it should be addressed to *****@wto.org, and cc’d
to *****.*****@wto.org, *****.*****@wto.org, *****.*****@wto.org,
and*****.*****@wto.org. If a CD-ROM or DVD is provided, it shall
be filed with the DS Registry.
d. Each party shall serve any document submitted to the Panel directly
on the other party. Each party shall, in addition, serve on all third
parties its written submissions in advance of the first substantive
meeting with the Panel. Each third party shall serve any document
submitted to the Panel directly on the parties and all other third
parties. Each party and third party shall confirm, in writing, that
copies have been served as required at the time it provides each
document to the Panel.
e. Each party and third party shall file its documents with the DS
Registry and serve copies on the other party (and third parties where
appropriate) by 5.30 p.m. (Geneva time) on the due dates established
by the Panel.
f. The Panel shall provide the parties with an electronic version of the
descriptive part, the interim report and the final report, as well as of
other documents as appropriate. When the Panel transmits to the
parties or third parties both paper and electronic versions of a docu-
ment, the paper version shall constitute the official version for the
purposes of the record of the dispute.
Annex III.B: Sample of Additional Working Procedures for the

Protection of Strictly Confidential Information (SCI)
Additional Working Procedures adopted by the Panel in DS430

India – Agricultural Products (WT/DS430/R/Add.1/(Annex A-2))
1. Pursuant to paragraph [. . .] of the Panel’s Working Procedures
adopted on [. . .], the Panel adopts the following additional procedures
that shall apply to all strictly confidential information (SCI) submitted in
the course of these proceedings. These procedures are intended to sup-
plement but not replace the provisions of Article 18.2 of the DSU and
paragraph 2 of the Panel’s Working Procedures.
2. These procedures apply to any SCI, defined as information (i) not
otherwise available in the public domain, and (ii) clearly designated as
SCI by the [complainant] or [respondent] in their submissions to
the Panel.
3. A party submitting SCI in any written submission (including in any
exhibits) shall inform the Panel and the other party (and the third parties
where applicable) of precisely which information the party is designating
as SCI by enclosing the information in double brackets and including on
the cover page and each page of the relevant document the statement:
“Contains SCI”. In the event that an entire exhibit is designated as SCI,
the party submitting such exhibit shall clarify this by including the
following statement on the cover page: “This Exhibit is SCI”. The Panel
will not disclose in its Report any information designated as SCI under
these procedures. The Panel may, however, make statements or conclu-
sions based on such information.
4. Before the Panel circulates its Report to Members, the Panel shall
give each party an opportunity to ensure that the Report does not contain
any information that it has designated as SCI. The removal of any
designated SCI by the Panel will be indicated in the Report through the
use of double brackets.
5. Each party and third party shall keep confidential SCI submitted by
another party or third party and shall use such SCI only for purposes of
the current proceeding or future proceedings under the DSU with respect
to [name of dispute].
Annex III.C: Sample of Additional Working Procedures for the

Protection of Business Confidential Information (BCI)
Additional Working Procedures adopted by the Panel in DS468

Ukraine – Passenger Cars (WT/DS468/R/Add.1/(Annex A-2))
These procedures apply to any business confidential information (“BCI”)
that a party wishes to submit to the Panel. For the purposes of these
procedures, BCI is defined as any information that has been designated
as such by the party submitting the information, that is not available in
the public domain, and the release of which would seriously prejudice an
essential interest of the person or entity that supplied the information to
the party. In this regard, BCI shall include information that was previ-
ously submitted to the investigating authorities of Ukraine, the Ministry
of Economic Development and Trade’s Department for WTO Cooper-
ation and Trade Remedies, as BCI in the safeguard investigation at issue
in this dispute. However, these procedures do not apply to information
that is available in the public domain. These procedures do not apply to
any BCI if the person who provided the information in the course of the
aforementioned investigation agrees in writing to make the information
publicly available.
No person may have access to BCI except a member of the Panel or the
WTO Secretariat, an employee of a party or third party, and an outside
advisor acting on behalf of a party or third party for the purposes of this
dispute. However, an outside advisor is not permitted access to BCI if
that advisor is an officer or employee of an enterprise engaged in the
production, export, or import of the products that were the subject of the
investigation at issue in this dispute.
A party or third party having access to BCI shall treat it as confidential,
i.e. shall not disclose that information other than to those persons author-
ized to have access to it pursuant to these procedures. Each party and third
party shall have responsibility in this regard for its employees as well as any
outside advisors used for the purposes of this dispute. BCI obtained under
these procedures may be used only for the purpose of providing infor-
mation and argumentation in this dispute and for no other purpose.
The party submitting BCI shall mark the cover and/or first page of the
document containing BCI, and each page of the document, to indicate the
presence of such information. The specific information in question shall
be placed between double brackets, as follows: [[xx,xxx.xx]]. The first page
or cover of the document shall state “Contains business confidential
information on pages xxxxxx”, and each page of the document shall
contain the notice “Contains Business Confidential Information” at the
top of the page. In case of exhibits, the party submitting BCI in the form of
an Exhibit shall mark it as (BCI) next to the exhibit number (e.g. Exhibit
UKR-1 (BCI)). Should the party submit specific BCI within a document
which is considered to be public, the specific information in question shall
be placed between double brackets, as follows: [[xx,xxx.xx]]”[sic].
Any BCI that is submitted in binary-encoded form shall be clearly
marked with the statement “Business Confidential Information” on a
label on the storage medium, and clearly marked with the statement
“Business Confidential Information” in the binary-encoded files.
In the case of an oral statement containing BCI, the party or third
party making such a statement shall inform the Panel before making it
that the statement will contain BCI, and the Panel will ensure that only
persons authorized to have access to BCI pursuant to these procedures
are in the room to hear that statement.
If a party considers that information submitted by the other party
should have been designated as BCI and it objects to such submission
without BCI designation, it shall forthwith bring this objection to the
attention of the Panel, the other party, and, where relevant, the third
parties. The Panel shall deal with the objection, as appropriate. The same
procedure shall be followed if a party considers that information submit-
ted by the other party with the notice “Contains Business Confidential
Information” should not be designated as BCI.
The parties, third parties, the Panel, the WTO Secretariat, and any
others who have access to documents containing BCI under the terms of
these Additional Working Procedures shall store all documents contain-
ing BCI so as to prevent unauthorized access to such information.
The Panel will not disclose BCI, in its report or in any other way, to
persons not authorized under these procedures to have access to BCI.
The Panel may, however, make statements of conclusion drawn from
such information. Before the Panel circulates its final report to the
Members, the Panel will give each party an opportunity to review the
report to ensure that it does not disclose any information that the party
has designated as BCI.
If (a) pursuant to Article 16.4 of the DSU, the Panel report is
adopted by the DSB, or the DSB decides by consensus not to adopt
the Panel report, (b) pursuant to Article 12.12 of the DSU, the
authority for establishment of the Panel lapses, or (c) pursuant to
Article 3.6 of the DSU, a mutually satisfactory solution is notified to
the DSB before the Panel completes its task, within a period to be fixed
by the Panel, each party and third party shall return all documents
(including electronic material and photocopies) containing BCI to the
party that submitted such documents, or certify in writing to the Panel
and the other party (or the parties, in the case of a third party
returning such documents) that all such documents (including elec-
tronic material and photocopies) have been destroyed, consistent with
the party’s record-keeping obligations under its domestic laws. The
Panel and the WTO Secretariat shall likewise return all such docu-
ments or certify to the parties that all such documents have been
destroyed. The WTO Secretariat shall, however, have the right to
retain one copy of each of the documents containing BCI for the
archives of the WTO or for transmission to the Appellate Body in
accordance with paragraph 11 below.
If a party formally notifies the DSB of its decision to appeal pursuant
to Article 16.4 of the DSU, the WTO Secretariat will inform the Appellate
Body of these procedures and will transmit to the Appellate Body any
BCI governed by these procedures as part of the record, including any
submissions containing information designated as BCI under these
working procedures. Such transmission shall occur separately from the
rest of the Panel record, to the extent possible. In the event of an appeal,
the Panel and the WTO Secretariat shall return all documents (including
electronic material and photocopies) containing BCI to the party that
submitted such documents, or certify to the parties that all such docu-
ments (including electronic material and photocopies) have been des-
troyed, except as otherwise provided above. Following the completion or
withdrawal of an appeal, the parties and third parties shall promptly
return all such documents or certify to the parties that all such docu-
ments have been destroyed, taking account of any applicable procedures
adopted by the Appellate Body.
At the request of a party, the Panel may apply these working proced-
ures or an amended form of these working procedures to protect infor-
mation that does not fall within the scope of the information set out in
paragraph 1. The Panel may, with the consent of the parties, waive any
part of these procedures.
Annex III.D: Sample of Working Procedures for Article 21.5
Compliance Panel
Working Procedures adopted by the Panel in DS381 US – Tuna II

(Mexico) (WT/DS381/RW/Add.1/(Annex A))
1. In its proceedings, the Panel shall follow the relevant provisions of
the Understanding on Rules and Procedures Governing the Settlement of
Disputes (DSU). In addition, the following Working Procedures
shall apply.
General
2. The deliberations of the Panel and the documents submitted to it
shall be kept confidential. Nothing in the DSU or in these Working
disclosing statements of its own positions to the public. Members shall
treat as confidential information submitted by another Member to the
Panel which the submitting Member has designated as confidential.
Where a party submits a confidential version of its written submissions
to the Panel, it shall also, upon request of a Member, provide a non-
confidential summary of the information contained in its submissions
that could be disclosed to the public.
3. The Panel shall meet in closed session. The parties, and Members
having notified their interest in the dispute to the Dispute Settlement Body
in accordance with Article 10 of the DSU (hereafter “third parties”), shall be
present at the meetings only when invited by the Panel to appear before it.
4. Each party and third party has the right to determine the compos-
ition of its own delegation when meeting with the Panel. Each party and
third party shall have responsibility for all members of its own delegation
and shall ensure that each member of such delegation acts in accordance
with the DSU and these Working Procedures, particularly with regard to
the confidentiality of the proceedings.
Submissions
5. Before the substantive meeting of the Panel with the parties, each
party shall transmit to the Panel a first written submission, and subse-
quently a written rebuttal, in which it presents the facts of the case and its
arguments, and counter-arguments, respectively, in accordance with the
timetable adopted by the Panel.
earliest possible opportunity and in any event no later than in its first
written submission to the Panel. If Mexico requests such a ruling, the
United States shall submit its response to the request in its first written
submission. If the United States requests such a ruling, Mexico shall submit
its response to the request prior to the substantive meeting of the Panel, at
a time to be determined by the Panel in light of the request. Exceptions to
this procedure shall be granted upon a showing of good cause.
7. Each party shall submit all factual evidence to the Panel no later
than during the substantive meeting, except with respect to evidence
necessary for purposes of rebuttal, answers to questions or comments
on answers provided by the other party. Exceptions to this procedure
shall be granted upon a showing of good cause. Where such exception
has been granted, the Panel shall accord the other party a period of time
for comment, as appropriate, on any new factual evidence submitted
after the substantive meeting.
8. Where an original exhibit is not in the language of the submitting
party’s written submissions, that party shall also submit a translation in
the language of its written submissions. The Panel may grant reasonable
extensions of time for the translation of such exhibits upon a showing of
good cause. Any objection as to the accuracy of a translation should be
raised promptly in writing. Any objection shall be accompanied by a
detailed explanation of the grounds of objection and an alternative
translation.
9. To facilitate the maintenance of the record of the dispute, and
maximize the clarity of submissions, each party and third party shall
sequentially number its exhibits throughout the course of the compliance
proceedings. For example, exhibits submitted by Mexico could be
numbered MEX-1, MEX-2, etc. If the last exhibit in connection with
the first submission was numbered MEX-5, the first exhibit of the next
submission thus would be numbered MEX-6. The first time a party or
third party submits to the Panel an exhibit that corresponds to an exhibit
submitted in the original panel proceedings, the party or third party
submitting such exhibit shall also identify the number of the original
exhibit in the original panel proceedings.
Questions
10. The Panel may at any time pose questions to the parties and third
parties, orally in the course of the substantive meeting or in writing.
Substantive meeting
11. Each party shall provide to the Panel the list of members of its
delegation in advance of the meeting with the Panel and no later than
6.00 p.m. the previous working day.
12. The substantive meeting of the Panel shall be conducted as follows:
a. The Panel shall invite Mexico to make an opening statement to
present its case first. Subsequently, the Panel shall invite the United
States to present its point of view. Before each party takes the floor, it
shall provide the Panel and other participants at the meeting with a
provisional written version of its statement. In the event that inter-
pretation is needed, each party shall provide additional copies to the
interpreters. Each party shall make available to the Panel and the other
party the final version of its statement, preferably at the end of the
meeting, and in any event no later than 6.00 p.m. on the first working
day following the meeting.
the opportunity to ask questions or make comments, through the
Panel. Each party shall send in writing, within a timeframe to be
determined by the Panel, any questions to the other party to which
it wishes to receive a response in writing. Each party shall be invited to
respond in writing to the other party’s questions within a deadline to
d. Once the questioning has concluded, the Panel shall afford each party
an opportunity to present a brief closing statement, with Mexico
presenting its statement first.
Third parties
13. The Panel shall invite each third party to transmit to the Panel
a written submission prior to the substantive meeting of the Panel
with the parties, in accordance with the timetable adopted by
the Panel.
14. Each third party shall also be invited to present its views orally
during a session of the substantive meeting, set aside for that purpose.
Each third party shall provide to the Panel the list of members of its
delegation in advance of this session and no later than 6.00 p.m. the
previous working day.
15. The third-party session shall be conducted as follows:
a. All third parties may be present during the entirety of this session.
b. The Panel shall first hear the arguments of the third parties in
alphabetical order. Third parties present at the third-party session
and intending to present their views orally at that session, shall
provide the Panel, the parties and other third parties with provisional
written versions of their statements before they take the floor. Third
parties shall make available to the Panel, the parties and other third
parties the final versions of their statements, preferably at the end of
the session, and in any event no later than 6.00 p.m. of the first
working day following the session.
c. After the third parties have made their statements, the parties may
be given the opportunity, through the Panel, to ask the third
parties questions for clarification on any matter raised in the third
parties’ submissions or statements. Each party shall send in
writing, within a timeframe to be determined by the Panel, any
questions to a third party to which it wishes to receive a response
in writing.
d. The Panel may subsequently pose questions to the third parties. The
Panel shall send in writing, within a timeframe to be determined by it,
any questions to the third parties to which it wishes to receive a
response in writing. Each third party shall be invited to respond in
writing to such questions within a deadline to be determined by
the Panel.
Descriptive part
16. The description of the arguments of the parties and third parties in
the descriptive part of the Panel report shall consist of executive sum-
maries provided by the parties and third parties, which shall be annexed
as addenda to the report. These executive summaries shall not in any way
serve as a substitute for the submissions of the parties and third parties in
the Panel’s examination of the case.
17. Each party shall submit an executive summary of each of its written
submissions and a consolidated executive summary of its opening and
closing oral statements, as applicable, at the latest 7 calendar days
following the delivery to the Panel of the written version of the relevant
submission or statement. A party may include its responses to questions
in the executive summary of its statements. In that case, the executive
summary, covering the party’s statements and responses to questions,
shall be submitted at the latest 7 calendar days following the delivery to
the Panel of its written responses to questions. The Panel will not
summarize in the descriptive part of its report, or annex to its report,
the parties’ responses to questions. The total length of these summaries
shall not exceed 30 pages.
18. The third parties shall submit executive summaries of their written
submission and oral statements at the latest 7 calendar days following the
delivery to the Panel of the written version of the relevant submission or
statement. A third party may include its responses to questions in the
executive summary of its statement. In that case, the executive summary,
covering the third party’s statement and responses to questions, shall be
submitted at the latest 7 calendar days following the delivery to the Panel
of its written responses to questions. The total length of these summaries
shall not exceed 6 pages.
Interim review
19. Following issuance of the interim report, each party may submit a
written request to review precise aspects of the interim report and request
a further meeting with the Panel in accordance with the timetable adopted
by the Panel. The right to request such a meeting shall be exercised no
later than at the time the written request for review is submitted.
20. In the event that no further meeting with the Panel is requested,
each party may submit written comments on the other party’s written
request for review in accordance with the timetable adopted by the Panel.
Such comments shall be limited to commenting on the other party’s
written request for review.
21. The interim report, as well as the final report prior to its official
circulation, shall be kept strictly confidential and shall not be disclosed.
shall apply:
a. Each party and third party shall submit all documents to the Panel by
filing them with the DS Registry (office No. 2047).
b. Each party and third party shall file 3 paper copies of all documents
it submits to the Panel. However, when exhibits are provided on
CD-ROMS/DVDs, 5 CD-ROMS/DVDs and 2 paper copies of those
exhibits shall be filed. The DS Registrar shall stamp the documents
with the date and time of the filing. The paper version shall
constitute the official version for the purposes of the record of the
dispute.
c. Each party and third party shall also provide an electronic copy of
all documents it submits to the Panel at the same time as the paper
versions, in Microsoft Word format, either on a CD-ROM, a DVD
or as an e-mail attachment. If the electronic copy is provided by e-
mail, it should be addressed to *****@wto.org, with a copy to *****.
*****@wto.org, *****.*****@wto.org and *****.*****@wto.org. If a
CD-ROM or DVD is provided, it shall be filed with the DS
Registry.
d. Each party shall serve any document submitted to the Panel directly
on the other party. Each party shall, in addition, serve on all third
parties its written submissions in advance of the substantive meeting
with the Panel. Each third party shall serve any document submitted
to the Panel directly on the parties and all other third parties. Each
party and third party shall confirm, in writing, that copies have been
served as required at the time it provides each document to
the Panel.
e. Each party and third party shall file its documents with the DS
Registry and serve copies on the other party (and third parties where
appropriate) by 6.00 p.m. (Geneva time) on the due dates established
by the Panel.
f. The Panel shall provide the parties with an electronic version of the
descriptive part, the interim report and the final report, as well as of
other documents as appropriate. When the Panel transmits to the
parties or third parties both paper and electronic versions of a docu-
ment, the paper version shall constitute the official version for the
purposes of the record of the dispute.
Modification of working procedures

23. The Panel may modify these working procedures after consulting
with the parties.
Annex III.E: Sample of Working Procedures for Article 22.6
Arbitration
Working Procedures adopted by the Panel in DS384 US – COOL

(Canada) (WT/DS384/ARB/Add.1(Annex A-1))
1. In its proceedings, the Arbitrator shall follow the relevant provisions
of the Understanding on Rules and Procedures Governing the Settlement
of Disputes (DSU). In addition, the following Working Procedures
shall apply.
General
2. The deliberations of the Arbitrator and the documents submitted to
it shall be kept confidential. Nothing in the DSU or in these Working
disclosing statements of its own positions to the public. The Arbitrator
may adopt special procedures concerning Business Confidential Infor-
mation after consulting the parties.
3. The Arbitrator shall conduct its internal deliberations in closed
session. The parties shall be present at meetings only when invited by
the Arbitrator to appear before it. The Arbitrator may open its meetings
with the parties to the public, subject to appropriate procedures to be
adopted by the Arbitrator after consulting the parties.
4. Each party has the right to determine the composition of its own
delegation when meeting with the Arbitrator. Each party shall have
responsibility for all members of its own delegation and shall ensure that
each member of such delegation acts in accordance with the DSU and
these Working Procedures, particularly with regard to the confidentiality
of the proceedings.
5. For the purposes of joining these proceedings with those in the
parallel dispute DS386, Mexico will be included in all communications of
the Arbitrator and of the parties, including their submissions. Mexico
will also be allowed to be present throughout the joint substantive
meeting in DS384 and DS386.
Submissions
6. Canada shall transmit to the Arbitrator and to the United States a
communication explaining the basis for its request, including the
methodology and data supporting it, in accordance with the timetable
adopted by the Arbitrator.
7. Each party to the dispute shall also transmit to the Arbitrator a
written submission in which it presents the facts of the case and its
arguments, in accordance with the timetable adopted by the Arbitrator.
earliest possible opportunity and in any event no later than in its written
submission to the Arbitrator. If the United States requests such a ruling in
its written submission to the Arbitrator, Canada shall submit its response
to the request in its written submission. If Canada requests such a ruling
in its written submission to the Arbitrator, the United States shall submit
its response to the request prior to the substantive meeting, at a time to be
determined by the Arbitrator in light of the request. Exceptions to this
procedure shall be granted upon a showing of good cause.
9. Each party shall submit all factual evidence to the Arbitrator no later
than in its written submission, except with respect to evidence necessary
for purposes of rebuttal, answers to questions or comments on answers
provided by the other party. Exceptions to this procedure shall be
granted upon a showing of good cause. Where such exception has been
granted, the Arbitrator shall accord the other party a period of time for
comment, as appropriate, on any new factual evidence submitted after
the substantive meeting.
10. Where the original language of exhibits is not a WTO working
language, the submitting party shall submit a translation into the WTO
working language of the submission at the same time. The Arbitrator may
grant reasonable extensions of time for the translation of such exhibits
upon a showing of good cause. Any objection as to the accuracy of a
translation should be raised promptly in writing, no later than the next
filing or meeting (whichever occurs earlier) following the submission
which contains the translation in question. The Arbitrator may grant
reasonable extensions of time for the filing of such objection upon a
showing of good cause. Any objection shall be accompanied by a detailed
explanation of the grounds of objection and an alternative translation.
11. In order to facilitate the work of the Arbitrator, each party is
invited to make its submissions in accordance with the WTO Editorial
Guide for Submissions attached as Annex 1, as relevant and to the extent
that it is practical to do so.
12. To facilitate the maintenance of the record of the dispute and
maximize the clarity of submissions, each party shall sequentially
number its exhibits throughout the course of the proceedings. For
example, exhibits submitted by the United States could be numbered
US-1, US-2, etc. If the last exhibit in connection with the first submission
was numbered US-5, the first exhibit of the next submission thus would
be numbered US-6.
Questions
13. The Arbitrator may at any time pose questions to the parties, orally
or in writing, including prior to the substantive meeting.
Substantive meeting
14. Each party shall provide to the Arbitrator the list of members of its
delegation in advance of each meeting with the Arbitrator and no later
than 5.00 p.m. the previous working day.
15. The substantive meeting of the Arbitrator with the parties shall be
conducted as follows:
a. The Arbitrator shall invite the United States to make an opening
statement to present its case first. Subsequently, the Arbitrator shall
invite Canada to present its point of view. Before each party takes the
floor, it shall provide the Arbitrator and other participants at the
meeting with a provisional written version of its statement. In the
event that interpretation is needed, each party shall provide additional
copies for the interpreters, through the Arbitrator’s Secretary. Each
party shall make available to the Arbitrator and the other party the
final version of its statement, preferably at the end of the meeting, and
in any event no later than 5.00 p.m. on the first working day following
the meeting.
b. After the conclusion of the statements, the Arbitrator shall give each
party the opportunity to ask each other questions or make comments,
through the Arbitrator. Each party shall then have an opportunity to
answer these questions orally. Each party shall send in writing, within
a timeframe to be determined by the Arbitrator, any questions to the
other party to which it wishes to receive a response in writing. Each
party shall be invited to respond in writing to the other party’s written
questions within a deadline to be determined by the Arbitrator.
c. The Arbitrator may subsequently pose questions to the parties. Each
party shall then have an opportunity to answer these questions orally.
The Arbitrator shall send in writing, within a timeframe to be deter-
mined by it, any questions to the parties to which it wishes to receive a
response in writing. Each party shall be invited to respond in writing
to such questions within a deadline to be determined by the
Arbitrator.
d. Once the questioning has concluded, the Arbitrator shall afford each
party an opportunity to present a brief closing statement, with the
United States presenting its statement first.
Executive summaries
16. The description of the arguments of the parties in the Decision of
the Arbitrator shall consist of executive summaries provided by the
parties, which shall be annexed as addenda to the decision. These execu-
tive summaries shall not in any way serve as a substitute for the submis-
sions of the parties in the Arbitrator’s examination of the case.
17. Each party shall submit an executive summary of the facts and
arguments as presented to the Arbitrator in its written submissions and
oral statements, in accordance with the timetable adopted by the Arbi-
trator. Each such executive summary shall not exceed 15 pages. The
Arbitrator will not summarize in a descriptive part, or annex to its
decision, the parties’ responses to questions.
shall apply:
a. Each party shall submit all documents to the Arbitrator by filing them
with the DS Registry (office No. 2047).
b. Each party shall file three (3) paper copies of all documents it submits
to the Arbitrator. However, when exhibits are provided on CD-
ROMS/DVDs, three (3) CD-ROMS/DVDs and two (2) paper copies
of those exhibits shall be filed. The DS Registrar shall stamp the
documents with the date and time of the filing. The paper version
shall constitute the official version for the purposes of the record of
the dispute.
c. Each party shall also provide an electronic copy of all documents it
submits to the Arbitrator at the same time as the paper versions,
preferably in Microsoft Word format, either on a CD-ROM, a DVD
or as an e-mail attachment. If the electronic copy is provided by
e-mail, it should be addressed to DSRegistry@wto.org, with a copy
to ***.***@wto.org and ***.***@wto.org. If a CD-ROM or DVD is
provided, it shall be filed with the DS Registry.
d. Each party shall serve any document submitted to the Arbitrator
directly on the other party. Each party shall confirm, in writing, that
copies have been served as required at the time it provides each
document to the Arbitrator.
e. Each party shall file its documents with the DS Registry and serve
copies on the other party by 5.00 p.m. (Geneva time) on the due dates
established by the Arbitrator. A party may submit its documents to
another party in electronic format only, subject to the recipient party’s
prior written approval and provided that the Arbitrator’s Secretary is
notified.
f. The Arbitrator shall provide the parties with an electronic version of
its decision, as well as of other documents as appropriate. When the
Arbitrator transmits to the parties both paper and electronic versions
of a document, the paper version shall constitute the official version
for the purposes of the record of the dispute.
Modification of Working Procedures

19. The Arbitrator reserves the right to modify these procedures as
necessary, after consultation with the parties.
14
Annex IV: Examples of Timetables for

Panel Proceedings
Annex IV.A: Sample of Timetable For Panel Proceedings

(Original Panel Proceedings without Experts)
Title of Dispute (WT/DSXXX)

Timetable for the Panel Proceedings1
Adopted on …
Panel established on . . .
Panel composed on . . .
Event Date Time

a. Organizational meeting:
b. Receipt of first written submissions
i. Complaining party(ies) 17:00
ii. Party complained against 17:00
c. Receipt of third parties’ written submissions 17:00
d. [Panel may send advance questions to the parties and third parties]
e. First substantive meeting with the parties
f. Third-party session
g. Receipt of executive summaries of third parties’ arguments 17:00
h. Receipt of responses to questions posed by the Panel 17:00
i. Receipt of first integrated executive summaries of the parties 17:00
j. Receipt of written rebuttals of the parties 17:00
k. [Panel may send advance questions to the parties and third parties]
l. Second substantive meeting with the parties
m. Receipt of responses to questions posed by the Panel 17:00
n. Receipt of comments on responses to questions posed by the Panel 17:00
o. Receipt of second executive summaries of the parties 17:00
p. Issuance of descriptive part of the report to the parties
1
The timetable may be changed in the light of subsequent developments.
275
(cont.)
Event Date Time

q. Receipt of comments by the parties on the descriptive part of the 17:00
report
r. Issuance of the interim report, including findings and conclusions
to the parties
s. Deadline for parties to request review of part(s) of the report and to
request interim review meeting
t. Interim review meeting, if requested – If no meeting requested,
deadline for comments on requests for review
u. Issuance of final report to the parties
v. Circulation of the final report to the Members
Annex IV.B: Sample of Timetable for Panel Proceedings

(Original Panel Proceedings with Experts)

Adopted on …
Panel established on . . .
Panel composed on . . .
Event Date Time

a. Organizational meeting
b. First written submission of complainant 17:00
c. First written submission of respondent 17:00
d. Panel sends questions on consultation with experts to parties
e. Third-party submissions 17:00
f. Parties’ views on consultations with experts 17:00
g. Panel informs parties on decision regarding use of experts
h. Panel contacts relevant International Organizations for names
of potential experts
i. Panel receives names of potential experts from International
Organizations
2
The calendar may be changed in the light of unforeseen developments. Additional
meetings with the parties may be scheduled if required.
annex iv: examples - timetable for panel proceedings 277
(cont.)
Event Date Time

j. Secretariat contacts experts on list
k. Deadline for replies from experts on interest in serving and
conflict of interest
l. Panel sends consolidated list of potential experts to parties
m. Parties’ comments on potential experts 17:00
n. [Advance Questions to the Parties]
o. Panel sends consolidated list of potential experts to parties
p. Parties’ comments on potential experts 17:00
q. First Meeting with parties –Day 1
r. Third party session
s. First Meeting with parties – Day 2
t. Panel sends questions to the parties
u. Panel sends questions to the third parties
v. Panel sends decision on selected experts to the parties
w. Parties send questions to each other 17:00
x. Parties send questions to third parties 17:00
y. Responses to questions posed by the Panel to the Parties 17:00
z. Responses to questions posed by the Panel to the 17:00
third parties
aa. Integrated executive summaries Third Parties 17:00
bb. Second written submissions 17:00
cc. Panel invites parties to submit proposed questions for experts
dd. Panel sends finalized written questions to experts
ee. Experts written responses
ff. Panel sends compilation of experts’ written responses to the
parties
gg. Parties comments on experts written responses 17:00
hh. Experts’ Responses - Comments on Comments 17:00
ii. [Advance Questions to the Parties]
jj. [Advance questions to Experts] 17:00
kk. [Advance questions to international organizations] 17:00
ll. Meeting with experts and the parties
mm. Meeting with experts and the parties
nn. Second meeting with parties – Day 1
oo. Second meeting with parties – Day 2
pp. [Second Meeting with parties – Day 3]
qq. Panel sends questions to the parties
rr. Parties send questions to each other 17:00
ss. Responses to questions posed by the Panel to the Parties 17:00
tt. Comments on the responses to questions 17:00
(cont.)
Event Date Time

uu. Integrated executive summaries Parties 17:00
vv. Issuance of descriptive part of the report to the parties
ww. Comments on descriptive part of the report 17:00
xx. Issuance of interim report to the parties
yy. Deadline for requesting an interim review meeting or review of 17:00
part(s) of the report
zz. Written comments on parties’ requests for review, if no interim 17:00
review meeting is requested
aaa. Interim review meeting with the parties, if requested
bbb. Issuance of final report to parties to dispute
Annex IV.C: Sample of Timetable for Panel Proceedings

(Compliance Panel Proceedings)
Title of Dispute
Recourse to Article 21.5 of the DSU by [ ]
(WT/DSXXX)

Referred to original panel on
Compliance panel composed on
Event Date Time

b. Receipt of first written submissions:
i. (Complainant) 17:00
ii. (Respondent): 17:00
c. Third party submissions ( , ): 17:00
d. Rebuttal by (Complainant): 17:00
e. Rebuttal by (Respondent): 17:00
f. Questions by the Panel (if relevant):
g. Meeting with the parties and third parties:
h. Receipt of responses to questions posed by the Panel: 17:00
3
The calendar may be changed in the light of unforeseen developments. Additional
meetings with the parties may be scheduled if required.
annex iv: examples - timetable for panel proceedings 279
(cont.)
Event Date Time

i. Comments on responses to questions posed by the Panel: 17:00
j. Receipt of integrated executive summaries: 17:00
k. Issuance of descriptive part of the report to the parties:
l. Comments on descriptive part of the report: 17:00
m. Issuance of interim report to the parties:
n. Deadline for parties to request review of part(s) of the report 17:00
and to request interim review meeting:
o. Interim review meeting, if requested – If no meeting requested,
deadline for comments on requests for review
p. Issuance of final report to the parties:
q. Circulation of the report to the Members:
Annex IV.D: Sample of Article 22.6 DSU Arbitration Timetable

Recourse to Article 22.6 of the DSU by [ ]
Timetable For The Arbitration Proceedings4
Event Date Time

b. Communications by complainant(s) explaining the basis for 17:00
their requests, including the methodology and data supporting
it (“Methodology Paper”)
c. Written submissions of respondent 17:00
d. Written submissions of complainant(s) 17:00
e. Questions to parties from Arbitrator
f. Replies to questions from Arbitrator 17:00
g. Meeting with parties
h. Questions to parties from Arbitrator
i. Replies to questions from Arbitrator 17:00
j. Comments on the Replies to questions 17:00
k. Executive summary of parties’ arguments 17:00
l. Issuance/circulation of the Arbitrator’s decision
4
Rule 17 applies to the computation of the time-periods below.
15
Annex V: Working Procedures for Appellate

Review (WT/AB/WP/6)
Definitions
1. In these Working Procedures for Appellate Review,

“appellant”
means any party to the dispute that has filed a Notice of Appeal
pursuant to Rule 20;
“appellate report”
means an Appellate Body report as described in Article 17 of
the DSU;
“appellee”
means any party to the dispute that has filed a submission pursuant
to Rule 22 or paragraph 4 of Rule 23;
“consensus”
a decision is deemed to be made by consensus if no Member
formally objects to it;
“covered agreements”
has the same meaning as “covered agreements” in paragraph 1 of
Article 1 of the DSU;
“division”
means the three Members who are selected to serve on any one
appeal in accordance with paragraph 1 of Article 17 of the DSU and
paragraph 2 of Rule 6;
“documents”
means the Notice of Appeal, any Notice of Other Appeal and the
submissions and other written statements presented by the participants
or third participants;
280
annex v: working procedures for appellate review 281
“DSB”
means the Dispute Settlement Body established under Article 2 of
the DSU;
“DSU”
means the Understanding on Rules and Procedures Governing the
Settlement of Disputes which is Annex 2 to the WTO Agreement;
“Member”
means a Member of the Appellate Body who has been appointed by
the DSB in accordance with Article 17 of the DSU;
“other appellant”
means any party to the dispute that has filed a Notice of Other
Appeal pursuant to paragraph 1 of Rule 23;
“participant”
means any party to the dispute that has filed a Notice of Appeal
pursuant to Rule 20, a Notice of Other Appeal pursuant to Rule 23 or a
submission pursuant to Rule 22 or paragraph 4 of Rule 23;
“party to the dispute”

means any WTO Member who was a complaining or defending
party in the panel dispute, but does not include a third party;
“proof of service”
means a letter or other written acknowledgement that a document
has been delivered, as required, to the parties to the dispute, participants,
third parties or third participants, as the case may be;
“Rules”
means these Working Procedures for Appellate Review;
“Rules of Conduct”
means the Rules of Conduct for the Understanding on Rules and
Procedures Governing the Settlement of Disputes as attached in Annex II
to these Rules;
“SCM Agreement”
means the Agreement on Subsidies and Countervailing Measures
which is in Annex 1A to the WTO Agreement;
“Secretariat”
means the Appellate Body Secretariat;
“service address”
means the address of the party to the dispute, participant, third
party or third participant as generally used in WTO dispute settlement
proceedings, unless the party to the dispute, participant, third party or
third participant has clearly indicated another address;
“third participant”
means any third party that has filed a written submission pursuant
to Rule 24(1); or any third party that appears at the oral hearing, whether
or not it makes an oral statement at that hearing;
“third party”
means any WTO Member who has notified the DSB of its substan-
tial interest in the matter before the panel pursuant to paragraph 2 of
Article 10 of the DSU;
“WTO”
means the World Trade Organization;
“WTO Agreement”
means the Marrakesh Agreement Establishing the World Trade
Organization, done at Marrakesh, Morocco on 15 April 1994;
“WTO Member”
means any State or separate customs territory possessing full auton-
omy in the conduct of its external commercial relations that has accepted
or acceded to the WTO in accordance with Articles XI, XII or XIV of the
WTO Agreement; and
“WTO Secretariat”
means the Secretariat of the World Trade Organization.
PART I MEMBERS
Duties and Responsibilities
2. (1) A Member shall abide by the terms and conditions of the DSU, these
Rules and any decisions of the DSB affecting the Appellate Body.
(2) During his/her term, a Member shall not accept any employ-
ment nor pursue any professional activity that is inconsistent
with his/her duties and responsibilities.
(3) A Member shall exercise his/her office without accepting or
seeking instructions from any international, governmental, or
non-governmental organization or any private source.
(4) A Member shall be available at all times and on short notice
and, to this end, shall keep the Secretariat informed of his/her
whereabouts at all times.
Decision-Making
3. (1) In accordance with paragraph 1 of Article 17 of the DSU,

decisions relating to an appeal shall be taken solely by the
division assigned to that appeal. Other decisions shall be taken
by the Appellate Body as a whole.
(2) The Appellate Body and its divisions shall make every effort to
take their decisions by consensus. Where, nevertheless, a deci-
sion cannot be arrived at by consensus, the matter at issue shall
be decided by a majority vote.
Collegiality
4. (1) To ensure consistency and coherence in decision-making, and

to draw on the individual and collective expertise of the
Members, the Members shall convene on a regular basis to
discuss matters of policy, practice and procedure.
(2) The Members shall stay abreast of dispute settlement
activities and other relevant activities of the WTO and, in
particular, each Member shall receive all documents filed in
an appeal.
(3) In accordance with the objectives set out in paragraph 1,
the division responsible for deciding each appeal shall
exchange views with the other Members before the division
finalizes the appellate report for circulation to the WTO
Members. This paragraph is subject to paragraphs 2 and 3
of Rule 11.
(4) Nothing in these Rules shall be interpreted as interfering with a
division’s full authority and freedom to hear and decide an
appeal assigned to it in accordance with paragraph 1 of Article
17 of the DSU.
Chairman
5. (1) There shall be a Chairman of the Appellate Body who shall be

elected by the Members.
(2) The term of office of the Chairman of the Appellate Body shall
be one year. The Appellate Body Members may decide to
extend the term of office for an additional period of up to one
year. However, in order to ensure rotation of the Chairmanship,
no Member shall serve as Chairman for more than two
consecutive terms.
(3) The Chairman shall be responsible for the overall direction of
the Appellate Body business, and in particular, his/her responsi-
bilities shall include:
(a) the supervision of the internal functioning of the Appellate
Body; and
(b) any such other duties as the Members may agree to entrust
to him/her.
(4) Where the office of the Chairman becomes vacant due to
permanent incapacity as a result of illness or death or by
resignation or expiration of his/her term, the Members shall
elect a new Chairman who shall serve a full term in accordance
with paragraph 2.
(5) In the event of a temporary absence or incapacity of the Chair-
man, the Appellate Body shall authorize another Member to act
as Chairman ad interim, and the Member so authorized shall
temporarily exercise all the powers, duties and functions of the
Chairman until the Chairman is capable of resuming his/her
functions.
Divisions
6. (1) In accordance with paragraph 1 of Article 17 of the DSU, a

division consisting of three Members shall be established to
hear and decide an appeal.
(2) The Members constituting a division shall be selected on the
basis of rotation, while taking into account the principles of
random selection, unpredictability and opportunity for all
Members to serve regardless of their national origin.
(3) A Member selected pursuant to paragraph 2 to serve on a
division shall serve on that division, unless:
(a) he/she is excused from that division pursuant to Rule 9 or 10;
(b) he/she has notified the Chairman and the Presiding
Member that he/she is prevented from serving on the
division because of illness or other serious reasons pursuant
to Rule 12; or
(c) he/she has notified his/her intentions to resign pursuant to
Rule 14.
Presiding Member of the Division
7. (1) Each division shall have a Presiding Member, who shall be

elected by the Members of that division.
(2) The responsibilities of the Presiding Member shall include:
(a) coordinating the overall conduct of the appeal proceeding;
(b) chairing all oral hearings and meetings related to that
appeal; and
(c) coordinating the drafting of the appellate report.
(3) In the event that a Presiding Member becomes incapable of
performing his/her duties, the other Members serving on that
division and the Member selected as a replacement pursuant to
Rule 13 shall elect one of their number to act as the Presiding
Member.
Rules of Conduct
8. (1) On a provisional basis, the Appellate Body adopts those provi-

sions of the Rules of Conduct for the Understanding on Rules
and Procedures Governing the Settlement of Disputes, attached
in Annex II to these Rules, which are applicable to it, until Rules
of Conduct are approved by the DSB.
(2) Upon approval of Rules of Conduct by the DSB, such Rules of
Conduct shall be directly incorporated and become part of these
Rules and shall supersede Annex II.
9. (1) Upon the filing of a Notice of Appeal, each Member shall take
the steps set out in Article VI:4(b)(i) of Annex II, and a Member
may consult with the other Members prior to completing the
disclosure form.
(2) Upon the filing of a Notice of Appeal, the professional staff of
the Secretariat assigned to that appeal shall take the steps set out
in Article VI:4(b)(ii) of Annex II.
(3) Where information has been submitted pursuant to Article
VI:4(b)(i) or (ii) of Annex II, the Appellate Body shall consider
whether further action is necessary.
(4) As a result of the Appellate Body’s consideration of the matter
pursuant to paragraph 3, the Member or the professional staff
member concerned may continue to be assigned to the div-
ision or may be excused from the division.
10. (1) Where evidence of a material violation is filed by a participant
pursuant to Article VIII of Annex II, such evidence shall be
confidential and shall be supported by affidavits made by
persons having actual knowledge or a reasonable belief as to
the truth of the facts stated.
(2) Any evidence filed pursuant to Article VIII:1 of Annex II shall
be filed at the earliest practicable time: that is, forthwith after
the participant submitting it knew or reasonably could have
known of the facts supporting it. In no case shall such evidence
be filed after the appellate report is circulated to the WTO
Members.
(3) Where a participant fails to submit such evidence at the
earliest practicable time, it shall file an explanation in writing
of the reasons why it did not do so earlier, and the Appellate
Body may decide to consider or not to consider such evidence,
as appropriate.
(4) While taking fully into account paragraph 5 of Article 17 of the
DSU, where evidence has been filed pursuant to Article VIII of
Annex II, an appeal shall be suspended for fifteen days or until
the procedure referred to in Article VIII:14–16 of Annex II is
completed, whichever is earlier.
(5) As a result of the procedure referred to in Article VIII:14–16 of
Annex II, the Appellate Body may decide to dismiss the
allegation, to excuse the Member or professional staff member
concerned from being assigned to the division or make such
other order as it deems necessary in accordance with Article
VIII of Annex II.
11. (1) A Member who has submitted a disclosure form with infor-
mation attached pursuant to Article VI:4(b)(i) or is the subject
of evidence of a material violation pursuant to Article VIII:1 of
Annex II, shall not participate in any decision taken pursuant
to paragraph 4 of Rule 9 or paragraph 5 of Rule 10.
(2) A Member who is excused from a division pursuant to para-
graph 4 of Rule 9 or paragraph 5 of Rule 10 shall not take part
in the exchange of views conducted in that appeal pursuant to
paragraph 3 of Rule 4.
(3) A Member who, had he/she been a Member of a division,
would have been excused from that division pursuant to para-
graph 4 of Rule 9, shall not take part in the exchange of views
conducted in that appeal pursuant to paragraph 3 of Rule 4.
Incapacity
12. (1) A Member who is prevented from serving on a division by

illness or for other serious reasons shall give notice and duly
explain such reasons to the Chairman and to the Presiding
Member.
(2) Upon receiving such notice, the Chairman and the Presiding
Member shall forthwith inform the Appellate Body.
Replacement
13. Where a Member is unable to serve on a division for a reason set

out in paragraph 3 of Rule 6, another Member shall be selected forthwith
pursuant to paragraph 2 of Rule 6 to replace the Member originally
selected for that division.
Resignation
14. (1) A Member who intends to resign from his/her office shall
notify his/her intentions in writing to the Chairman of the
Appellate Body who shall immediately inform the Chairman
of the DSB, the Director-General and the other Members of
the Appellate Body.
(2) The resignation shall take effect 90 days after the notification
has been made pursuant to paragraph 1, unless the DSB, in
consultation with the Appellate Body, decides otherwise.
Transition
15. A person who ceases to be a Member of the Appellate Body may,

with the authorization of the Appellate Body and upon notification to the
DSB, complete the disposition of any appeal to which that person was
assigned while a Member, and that person shall, for that purpose only, be
deemed to continue to be a Member of the Appellate Body.
PART II PROCESS
General Provisions
16. (1) In the interests of fairness and orderly procedure in the

conduct of an appeal, where a procedural question arises that
is not covered by these Rules, a division may adopt an appro-
priate procedure for the purposes of that appeal only, pro-
vided that it is not inconsistent with the DSU, the other
covered agreements and these Rules. Where such a procedure
is adopted, the division shall immediately notify the parties to
the dispute, participants, third parties and third participants
as well as the other Members of the Appellate Body.
(2) In exceptional circumstances, where strict adherence to a
time-period set out in these Rules would result in a manifest
unfairness, a party to the dispute, a participant, a third party
or a third participant may request that a division modify a
time-period set out in these Rules for the filing of documents
or the date set out in the working schedule for the oral
hearing. Where such a request is granted by a division, any
modification of time shall be notified to the parties to the
dispute, participants, third parties and third participants in a
revised working schedule.
17. (1) Unless the DSB decides otherwise, in computing any time-
period stipulated in the DSU or in the special or additional
provisions of the covered agreements, or in these Rules, within
which a communication must be made or an action taken by a
WTO Member to exercise or preserve its rights, the day from
which the time-period begins to run shall be excluded and,
subject to paragraph 2, the last day of the time-period shall be
included.
(2) The DSB Decision on “Expiration of Time-Periods in the
DSU”, WT/DSB/M/7, shall apply to appeals heard by divisions
of the Appellate Body.
Documents
18. (1) No document is considered filed with the Appellate Body

unless the document is received by the Secretariat within the
time-period set out for filing in accordance with these Rules.
Official versions of documents shall be submitted in paper
form to the Appellate Body Secretariat by 17:00 Geneva time
on the day that the document is due. Participants, parties,
third participants and third parties shall, by the same dead-
line, also provide to the Appellate Body Secretariat an elec-
tronic copy of each document. Such electronic copy may be
sent via electronic mail to the Appellate Body Secretariat’s
electronic mail address, or brought to the Appellate Body
Secretariat on a data storage device such as a CD-ROM or
USB flash drive.
(2) Except as otherwise provided in these Rules, every document
filed by a party to the dispute, a participant, a third party or a
third participant shall on the same day be served on each of
the other parties to the dispute, participants, third parties and
third participants in the appeal, in accordance with
paragraph 4.
(3) A proof of service on the other parties to the dispute, partici-
pants, third parties and third participants shall appear on, or
be affixed to, each document filed with the Secretariat under
paragraph 1 above.
(4) A document shall be served by the most expeditious means of
delivery or communication available, including by:
(a) delivering a copy of the document to the service address of
the party to the dispute, participant, third party or third
participant; or
(b) sending a copy of the document to the service address of
the party to the dispute, participant, third party or third
participant by facsimile transmission, expedited delivery
courier or expedited mail service.
Electronic copies of documents served shall also be provided
on the same day, either by electronic mail, or through physical
delivery of a data storage device containing an electronic copy
of the document.
(5) Upon authorization by the division, a participant or a third
participant may correct clerical errors in any of its documents
(including typographical mistakes, errors of grammar, or
words or numbers placed in the wrong order). The request
to correct clerical errors shall identify the specific errors to be
corrected and shall be filed with the Secretariat no later than
30 days after the date of the filing of the Notice of Appeal.
A copy of the request shall be served upon the other parties to
the dispute, participants, third parties and third participants,
each of whom shall be given an opportunity to comment in
writing on the request. The division shall notify the parties to
the dispute, participants, third parties and third participants of
its decision.
Ex Parte Communications
19. (1) Neither a division nor any of its Members shall meet with or
contact one party to the dispute, participant, third party or
third participant in the absence of the other parties to the
dispute, participants, third parties and third participants.
(2) No Member of the division may discuss any aspect of the
subject matter of an appeal with any party to the dispute,
participant, third party or third participant in the absence of
the other Members of the division.
(3) A Member who is not assigned to the division hearing the
appeal shall not discuss any aspect of the subject matter of the
appeal with any party to the dispute, participant, third party or
third participant.
Commencement of Appeal
20. (1) An appeal shall be commenced by notification in writing to the

DSB in accordance with paragraph 4 of Article 16 of the DSU
and simultaneous filing of a Notice of Appeal with the
Secretariat.
(2) A Notice of Appeal shall include the following information:
(a) the title of the panel report under appeal;
(b) the name of the party to the dispute filing the Notice of
Appeal;
(c) the service address, telephone and facsimile numbers of the
party to the dispute; and
(d) a brief statement of the nature of the appeal, including:
(i) identification of the alleged errors in the issues of law
covered in the panel report and legal interpretations
developed by the panel;
(ii) a list of the legal provision(s) of the covered agree-
ments that the panel is alleged to have erred in inter-
preting or applying; and
(iii) without prejudice to the ability of the appellant to refer
to other paragraphs of the panel report in the context
of its appeal, an indicative list of the paragraphs of the
panel report containing the alleged errors.
Appellant’s Submission
21. (1) The appellant shall, on the same day as the date of the filing of
the Notice of Appeal, file with the Secretariat a written sub-
mission prepared in accordance with paragraph 2 and serve a
copy of the submission on the other parties to the dispute and
third parties.
(2) A written submission referred to in paragraph 1 shall:
(a) be dated and signed by the appellant; and
(b) set out:
(i) a precise statement of the grounds for the appeal,
including the specific allegations of errors in the
issues of law covered in the panel report and legal
interpretations developed by the panel, and the legal
arguments in support thereof;
(ii) a precise statement of the provisions of the covered
agreements and other legal sources relied on; and
(iii) the nature of the decision or ruling sought.
Appellee’s Submission
22. (1) Any party to the dispute that wishes to respond to allegations
raised in an appellant’s submission filed pursuant to Rule 21
may, within 18 days after the date of the filing of the Notice of
Appeal, file with the Secretariat a written submission prepared in
accordance with paragraph 2 and serve a copy of the submission
on the appellant, other parties to the dispute and third parties.
(2) A written submission referred to in paragraph 1 shall:
(a) be dated and signed by the appellee; and
(b) set out:
(i) a precise statement of the grounds for opposing the
specific allegations of errors in the issues of law
covered in the panel report and legal interpretations
developed by the panel raised in the appellant’s sub-
mission, and the legal arguments in support thereof;
(ii) an acceptance of, or opposition to, each ground set
out in the appellant’s submission;
(iii) a precise statement of the provisions of the covered
agreements and other legal sources relied on; and
(iv) the nature of the decision or ruling sought.
Multiple Appeals
23. (1) Within 5 days after the date of the filing of the Notice of
Appeal, a party to the dispute other than the original appellant
may join in that appeal or appeal on the basis of other alleged
errors in the issues of law covered in the panel report and legal
interpretations developed by the panel. That party shall notify
the DSB in writing of its appeal and shall simultaneously file a
Notice of Other Appeal with the Secretariat.
(2) A Notice of Other Appeal shall include the following
information:
(a) the title of the panel report under appeal;
(b) the name of the party to the dispute filing the Notice of
Other Appeal;
(c) the service address, telephone and facsimile numbers of
the party to the dispute; and either
(i) a statement of the issues raised on appeal by another
participant with which the party joins; or
(ii) a brief statement of the nature of the other appeal,
including:
(A) identification of the alleged errors in the issues of
law covered in the panel report and legal inter-
pretations developed by the panel;
(B) a list of the legal provision(s) of the covered
agreements that the panel is alleged to have erred
in interpreting or applying; and
(C) without prejudice to the ability of the other
appellant to refer to other paragraphs of the panel
report in the context of its appeal, an indicative
list of the paragraphs of the panel report contain-
ing the alleged errors.
(3) The other appellant shall, within 5 days after the date of the
filing of the Notice of Appeal, file with the Secretariat a written
submission prepared in accordance with paragraph 2 of Rule
21 and serve a copy of the submission on the other parties to
the dispute and third parties.
(4) The appellant, any appellee and any other party to the dispute
that wishes to respond to a submission filed pursuant to
paragraph 3 may file a written submission within 18 days after
the date of the filing of the Notice of Appeal, and any such
submission shall be in the format required by paragraph 2 of
Rule 22.
(5) This Rule does not preclude a party to the dispute which has
not filed a submission under Rule 21 or a Notice of Other
Appeal under paragraph 1 of this Rule from exercising its
right of appeal pursuant to paragraph 4 of Article 16 of
the DSU.
(6) Where a party to the dispute which has not filed a submission
under Rule 21 or a Notice of Other Appeal under paragraph
1 of this Rule exercises its right to appeal as set out in
paragraph 5, a single division shall examine the appeals.
Amending Notices of Appeal
23bis. (1) The division may authorize an original appellant to amend a

Notice of Appeal or an other appellant to amend a Notice of
Other Appeal.
(2) A request to amend a Notice of Appeal or a Notice of
Other Appeal shall be made as soon as possible in writing
and shall state the reason(s) for the request and identify
precisely the specific amendments that the appellant or
other appellant wishes to make to the Notice. A copy of
the request shall be served on the other parties to the
dispute, participants, third participants and third parties,
each of whom shall be given an opportunity to comment in
writing on the request.
(3) In deciding whether to authorize, in full or in part, a request to
amend a Notice of Appeal or Notice of Other Appeal, the
division shall take into account:
(a) the requirement to circulate the appellate report within the
time-period set out in Article 17.5 of the DSU or, as
appropriate, Article 4.9 of the SCM Agreement; and,
(b) the interests of fairness and orderly procedure, including
the nature and extent of the proposed amendment, the
timing of the request to amend a Notice of Appeal or
Notice of Other Appeal, any reasons why the proposed
amended Notice of Appeal or Notice of Other Appeal was
not or could not have been filed on its original date, and
any other considerations that may be appropriate.
(4) The division shall notify the parties to the dispute, partici-
pants, third participants, and third parties of its decision. In
the event that the division authorizes an amendment to a
Notice of Appeal or a Notice of Other Appeal, it shall provide
an amended copy of the Notice to the DSB.
Third Participants
24. (1) Any third party may file a written submission containing the
grounds and legal arguments in support of its position. Such
submission shall be filed within 21 days after the date of the
filing of the Notice of Appeal.
(2) A third party not filing a written submission shall, within the
same period of 21 days, notify the Secretariat in writing if it
intends to appear at the oral hearing, and, if so, whether it
intends to make an oral statement.
(3) Third participants are encouraged to file written submissions
to facilitate their positions being taken fully into account by
the division hearing the appeal and in order that participants
and other third participants will have notice of positions to be
taken at the oral hearing.
(4) Any third party that has neither filed a written submission
pursuant to paragraph 1, nor notified the Secretariat pursuant
to paragraph 2, may notify the Secretariat that it intends to
appear at the oral hearing, and may request to make an oral
statement at the hearing. Such notifications and requests
should be notified to the Secretariat in writing at the earliest
opportunity.
Transmittal of Record
25. (1) Upon the filing of a Notice of Appeal, the Director-General of

the WTO shall transmit forthwith to the Appellate Body the
complete record of the panel proceeding.
(2) The complete record of the panel proceeding includes, but is
not limited to:
(a) written submissions, rebuttal submissions, and supporting
evidence attached thereto by the parties to the dispute and
the third parties;
(b) written arguments submitted at the panel meetings with
the parties to the dispute and the third parties, the record-
ings of such panel meetings, and any written answers to
questions posed at such panel meetings;
(c) the correspondence relating to the panel dispute between
the panel or the WTO Secretariat and the parties to the
dispute or the third parties; and
(d) any other documentation submitted to the panel.
Working Schedule
26. (1) Forthwith after the commencement of an appeal, the division

shall draw up an appropriate working schedule for that appeal
in accordance with the time-periods stipulated in these Rules.
(2) The working schedule shall set forth precise dates for the filing
of documents and a timetable for the division’s work, includ-
ing where possible, the date for the oral hearing.
(3) In accordance with paragraph 9 of Article 4 of the DSU, in
appeals of urgency, including those which concern perishable
goods, the Appellate Body shall make every effort to accelerate
the appellate proceedings to the greatest extent possible.
A division shall take this into account in drawing up its
working schedule for that appeal.
(4) The Secretariat shall serve forthwith a copy of the working
schedule on the appellant, the parties to the dispute and any
third parties.
Oral Hearing
27. (1) A division shall hold an oral hearing, which shall be held, as a
general rule, between 30 and 45 days after the date of the filing
of a Notice of Appeal.
(2) Where possible in the working schedule or otherwise at the
earliest possible date, the Secretariat shall notify all parties to
the dispute, participants, third parties and third participants of
the date for the oral hearing.
(3) (a) Any third party that has filed a submission pursuant to
Rule 24(1), or has notified the Secretariat pursuant to Rule
24(2) that it intends to appear at the oral hearing, may
appear at the oral hearing, make an oral statement at the
hearing, and respond to questions posed by the division.
(b) Any third party that has notified the Secretariat pursuant
to Rule 24(4) that it intends to appear at the oral hearing
may appear at the oral hearing.
(c) Any third party that has made a request pursuant to Rule
24(4) may, at the discretion of the division hearing the
appeal, taking into account the requirements of due pro-
cess, make an oral statement at the hearing, and respond to
questions posed by the division.
(4) The Presiding Member may set time-limits for oral arguments.
Written Responses
28. (1) At any time during the appellate proceeding, including, in

particular, during the oral hearing, the division may address
questions orally or in writing to, or request additional memo-
randa from, any participant or third participant, and specify
the time-periods by which written responses or memoranda
shall be received.
(2) Any such questions, responses or memoranda shall be made
available to the other participants and third participants in the
appeal, who shall be given an opportunity to respond.
(3) When the questions or requests for memoranda are made
prior to the oral hearing, then the questions or requests, as
well as the responses or memoranda, shall also be made
available to the third parties, who shall also be given an
opportunity to respond.
Failure to Appear
29. Where a participant fails to file a submission within the required

time-periods or fails to appear at the oral hearing, the division shall, after
hearing the views of the participants, issue such order, including dis-
missal of the appeal, as it deems appropriate.
Withdrawal of Appeal
30. (1) At any time during an appeal, the appellant may withdraw its
appeal by notifying the Appellate Body, which shall forthwith
notify the DSB.
(2) Where a mutually agreed solution to a dispute which is the
subject of an appeal has been notified to the DSB pursuant to
paragraph 6 of Article 3 of the DSU, it shall be notified to the
Appellate Body.
Prohibited Subsidies
31. (1) Subject to Article 4 of the SCM Agreement, the general provi-
sions of these Rules shall apply to appeals relating to panel
reports concerning prohibited subsidies under Part II of that
Agreement.
(2) The working schedule for an appeal involving prohibited sub-
sidies under Part II of the SCM Agreement shall be as set out in
Annex I to these Rules.
Entry into Force and Amendment
32. (1) These Rules entered into force on 15 February 1996, and have
subsequently been amended as indicated in Annex III.
(2) The Appellate Body may amend these Rules in compliance
with the procedures set forth in paragraph 9 of Article 17 of
the DSU. The Appellate Body will announce the date on which
such amendments come into force. The document number for
each revised version of these Rules, and the date upon which
each version entered into force and succeeded the previous
version, are indicated in Annex III.
(3) Whenever there is an amendment to the DSU or to the special
or additional rules and procedures of the covered agreements,
the Appellate Body shall examine whether amendments to
these Rules are necessary.
ANNEX I
TIMETABLE FOR APPEALS1
General Prohibited Subsidies

Appeals Appeals
Day Day
2
Notice of Appeal 0 0
Appellant’s Submission3 0 0
Notice of Other Appeal4 5 2
Other Appellant’s Submission5 5 2
Appellee’s Submission6 18 9
Third Participant’s Submission7 21 10
Third Participant’s Notification8 21 10
Oral Hearing9 30–45 15–23
Circulation of Appellate Report 60–9010 30–6011
DSB Meeting for Adoption 90–12012 50–8013
ANNEX II RULES OF CONDUCT FOR THE UNDERSTANDING

ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT
OF DISPUTES
I. Preamble
Members,
stronger and clearer legal framework they had adopted for the conduct
of international trade, including a more effective and reliable dispute
settlement mechanism;
Recognizing the importance of full adherence to the Understanding on
Rules and Procedures Governing the Settlement of Disputes (“DSU”)
1 2
Rule 17 applies to the computation of the time-periods below. Rule 20.
3 4 5 6
Rule 21(1). Rule 23(1). Rule 23(3). Rules 22 and 23(4).
7 8 9 10
Rule 24(1). Rule 24(2). Rule 27. Article 17.5, DSU.
11 12
Article 4.9, SCM Agreement. Article 17.14, DSU.
13
Article 4.9, SCM Agreement.
and the principles for the management of disputes applied under
Articles XXII and XXIII of GATT 1947, as further elaborated and
Affirming that the operation of the DSU would be strengthened by rules
of conduct designed to maintain the integrity, impartiality and confi-
dentiality of proceedings conducted under the DSU thereby enhancing
confidence in the new dispute settlement mechanism;

Section IV below and hereinafter called “covered person”) shall be inde-
pendent and impartial, shall avoid direct or indirect conflicts of interest
and shall respect the confidentiality of proceedings of bodies pursuant to
the dispute settlement mechanism, so that through the observance of such
standards of conduct the integrity and impartiality of that mechanism are
preserved. These Rules shall in no way modify the rights and obligations
of Members under the DSU nor the rules and procedures therein.

2. Pursuant to the Governing Principle, each covered person, shall
be independent and impartial, and shall maintain confidentiality.
Moreover, such persons shall consider only issues raised in, and
necessary to fulfil their responsibilities within, the dispute settlement
proceeding and shall not delegate this responsibility to any other
person. Such person shall not incur any obligation or accept any
benefit that would in any way interfere with, or which could give rise
to, justifiable doubts as to the proper performance of that person’s
dispute settlement duties.
IV. Scope
sions mentioned in Annex “1b”. These Rules shall also apply, as specified
in this text and the relevant provisions of the Staff Regulations, to those
or observations pursuant to the WTO Agreement on Textiles and
Clothing; and to Standing Appellate Body support staff called upon to
provide the Standing Appellate Body with administrative or legal support
in accordance with Article 17.7 of the DSU (hereinafter “Member of the
Secretariat or Standing Appellate Body support staff”), reflecting their
acceptance of established norms regulating the conduct of such persons
as international civil servants and the Governing Principle of these Rules.

1

these Rules.
through rotation, are selected to hear the appeal of a particu-
lar panel case, shall review the factual portion of the Panel
report and complete the form at Annex 3. Such information
would be disclosed to the Standing Appellate Body for its
consideration whether the member concerned should hear a
particular appeal.
consideration in deciding on the assignment of staff to assist
in a particular appeal.
WTO the information required under paragraph VI:2 of these
Rules and any other relevant information required under the
Staff Regulations, including the information described in the
footnote.**
become aware of it.
When the Director-General, in the light of his consideration, including
of available Secretariat resources, decides that a potential conflict of inter-
est is not sufficiently material to warrant non-assignment of a particular
member of the Secretariat to assist in a dispute, the Director-General shall
inform the panel of his decision and of the relevant supporting infor-
mation.”

others.
VII:1, no covered person shall make any statements on such proceed-
ings or the issues in dispute in which that person is participating, until
the report of the panel or the Standing Appellate Body has been
derestricted.
VIII. Procedures Concerning Subsequent Disclosure and

Possible Material Violations
1. Any party to a dispute, conducted pursuant to the WTO Agree-

ment, who possesses or comes into possession of evidence of a
material violation of the obligations of independence, impartiality
or confidentiality or the avoidance of direct or indirect conflicts of
interest by covered persons which may impair the integrity, imparti-
ality or confidentiality of the dispute settlement mechanism, shall at
the earliest possible time and on a confidential basis, submit such
evidence to the Chair of the DSB, the Director-General or the Stand-
ing Appellate Body, as appropriate according to the respective pro-
cedures detailed in paragraphs VIII:5 to VIII:17 below, in a written
statement specifying the relevant facts and circumstances. Other
Members who possess or come into possession of such evidence,
may provide such evidence to the parties to the dispute in the interest
of maintaining the integrity and impartiality of the dispute settlement
mechanism.

Chair of the DSB.
VIII:2, the Chair of the DSB shall forthwith provide the evidence to the
person who is the subject of such evidence, for consideration by the
latter.
8. In all cases, the Chair of the DSB, in consultation with the
Director-General and a sufficient number of Chairs of the relevant
Council or Councils to provide an odd number, and after having
provided a reasonable opportunity for the views of the person con-
cerned and the parties to the dispute to be heard, would decide whether
a material violation of these Rules as referred to in paragraphs VIII:1
and VIII:2 above has occurred. Where the parties agree that a material
violation of these Rules has occurred, it would be expected that, con-
sistent with maintaining the integrity of the dispute settlement mech-
anism, the disqualification of the person concerned would be
confirmed.
that time.
Secretariat
to the Director-General of the WTO, who shall forthwith provide
the evidence to the person who is the subject of such evidence and
the panel.

member of the Standing Appellate Body or of the Standing Appellate
Body support staff, the party shall provide the evidence to the other party
to the dispute and the evidence shall thereafter be provided to the
Standing Appellate Body.
VIII:2 above, the Standing Appellate Body shall forthwith provide it to
the person who is the subject of such evidence, for consideration by the
latter.
ance with the following draft provision for the Staff Regulations: “If paragraph VIII:11 of
the Rules of Conduct for the DSU governing the settlement of disputes is invoked, the
Director-General shall consult with the person who is the subject of the evidence and the
panel and shall, if necessary, take appropriate disciplinary action.”
ing information.
***

the Standing Appellate Body, is revoked or that person is excused or
resigns, the procedures specified in the DSU for initial appointment shall
be followed for appointment of a replacement, but the time-periods shall
be half those specified in the DSU.**** The member of the Standing
Appellate Body who, under that Body’s rules, would next be selected
through rotation to consider the dispute, would automatically be
assigned to the appeal. The panel, members of the Standing Appellate
Body hearing the appeal, or the arbitrator, as the case may be, may then
decide after consulting with the parties to the dispute, on any necessary
modifications to their working procedures or proposed timetable.
the DSU.
IX. Review

ANNEX 1a

ANNEX 1b

provisions:
ANNEX 2
Illustrative List of Information to be Disclosed

upon to serve in a dispute should disclose pursuant to the Rules of
Conduct for the Understanding on Rules and Procedures Governing the
Settlement of Disputes.
Each covered person, as defined in Section IV:1 of these Rules of
Conduct has a continuing duty to disclose the information described in
Section VI:2 of these Rules which may include the following:
debts); business interests (e.g. directorship or other contractual
interests); and property interests relevant to the dispute in
question;
(b) professional interests (e.g. a past or present relationship with
private clients, or any interests the person may have in domestic
or international proceedings, and their implications, where these
involve issues similar to those addressed in the dispute in
question);
ANNEX 3

DISCLOSURE FORM
I have read the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU) and the Rules of Conduct for the DSU.
I understand my continuing duty, while participating in the dispute
settlement mechanism, and until such time as the Dispute Settlement
Body (DSB) makes a decision on adoption of a report relating to the
proceeding or notes its settlement, to disclose herewith and in future any
information likely to affect my independence or impartiality, or which
could give rise to justifiable doubts as to the integrity and impartiality of
the dispute settlement mechanism; and to respect my obligations
regarding the confidentiality of dispute settlement proceedings.
Signed: Dated:
ANNEX III
Table of Consolidated and Revised Versions of the Working Procedures for

Appellate Review
Minutes of
Principal DSB
Working Meeting(s) at
Documents/ which
Document Explanatory Amendments
Number Effective Date Rules Amended Texts were Discussed
WT/AB/ 15 February N/A WT/AB/ 31 January 1996,
WP/1 1996 WP/W/1 WT/DSB/M/
10 and
21 February
1996, WT/
DSB/M/11
WT/AB/ 28 February Rule 5(2) WT/AB/ 25 February
WP/2 1997 and Annex II WP/W/2, 1997, WT/
WT/AB/ DSB/M/29
WP/W/3
(cont.)
Minutes of
Principal DSB
Working Meeting(s) at
Documents/ which
Document Explanatory Amendments
Number Effective Date Rules Amended Texts were Discussed
WT/AB/ 24 January Rule 5(2) WT/AB/ 24 July 2001,
WP/3 2002 WP/W/4, WT/DSB/M/
WT/AB/ 107
WP/W/5
WT/AB/ 1 May 2003 Rules 24 and 27 WT/AB/ 23 October
WP/4 (3), with WP/W/6, 2002, WT/
consequential WT/AB/ DSB/M/134
amendments WP/W/7
to Rules 1, 16,
18, 19, and 28,
and Annex I
WT/AB/ 1 January Rules 1, 18, 20, WT/AB/ 19 May 2004,
WP/5 2005 21, 23, 23 bis, WP/W/8, WT/DSB/M/
and 27, and WT/AB/ 169
Annexes I WP/W/9
and III
WT/AB/ 15 September Rules 6(3), 18 WT/AB/ 18 May 2010,
WP/6 2010 (1), 18(2), 18 WP/W/10, WT/DSB/M/
(4), 21(1), 22 WT/AB/ 283
(1), 23(1), 23 WP/W/11
(3), 23(4), 24
(1), 24(2), 27
(1), 32(1), and
32(2), and
Annexes
I and III;
additional
technical
amendments
to Spanish
and French
versions only
16
Annex VI: DSB Practices
Working Practices Concerning Dispute Settlement Procedures

(WT/DSB/6)
As Agreed by the Dispute Settlement Body
(WT/DSB/6)
6 June 1996
For practical purposes the working practices agreed by the Dispute
Settlement Body concerning dispute settlement procedures since the
entry into force of the WTO are compiled in this document. The working
practices pertain to:
1. “Date of circulation” in the DSU and its additional and special rules.
2. Communications under the DSU.
3. Time-periods under the DSU and other covered agreements.
4. Notifications of requests for consultations.
“Date of circulation” in the DSU and its additional

and special rules1
When there is a reference to the terms “date of circulation” or “issuance
to all Members” or ”issuance to the Members” in the DSU and its
additional and special rules, the date to be used is the date printed on
the WTO document to be circulated with the assurance of the Secretariat
that the date printed on the document is the date on which this docu-
ment is effectively put in the pigeon holes of delegations in all three
working languages. This practice will be used on a trial basis and be
subject to revision when necessary.
1
See Minutes of the DSB meeting on 29 March 1995 (WT/DSB/M/2).
310
annex vi: dsb practices 311
Communications under the DSU2
Where there is a requirement under the DSU or any other covered
agreements that communications by delegations be addressed to the
DSB Chairman such communications should always be sent to the
WTO Secretariat with a copy to the DSB Chairman. Members are invited
to contact the Council Division in the WTO Secretariat, to inform it that
a communication is being sent in order to enable an expeditious process-
ing and circulation of communications.
Note: In addition to notification to the DSB, Notice of Appeal must be

sent to the Appellate Body Secretariat in accordance with the Working
Procedures for Appellate Review (WT/AB/WP/1). All other communi-
cations to the Appellate Body are required to be submitted to the
Appellate Body Secretariat as provided for in the above-mentioned
Working Procedures.
Time-periods under the DSU and other covered agreements3

When, under the DSU and its special or additional rules and procedures,
a time-period within which a communication must be made or action
taken by a Member to exercise or preserve its rights expires on a non-
working day of the WTO Secretariat, any such communication or action
will be deemed to have been made or taken on the WTO non-working
day if lodged on the first working day of the WTO Secretariat following
the day on which such time-period would normally expire.4
Notifications of requests for consultations5

All requests for consultations under Article 4.4 of the DSU which should
be notified to the DSB and the relevant Councils and Committees by a
Member should be sent to the Secretariat (Council Division) specifying
in the notifications the other relevant Councils or Committees to which
they wished the notification to be addressed. The Secretariat would then
distribute it to the specified relevant bodies.
2
See Minutes of the DSB meeting on 31 May 1995 (WT/DSB/M/5).
3
See Minutes of the DSB meeting on 27 September 1995 (WT/DSB/M/7).
4
See also WT/DSB/W/10/Add.1 containing an illustrative list of DSU provisions which
refer to time-periods and WT/DSB/W/16 indicating the WTO non-working days in 1996.
5
See Minutes of the DSB meeting on 19 July 1995 (WT/DSB/M/6).
United States – Section 306 of the Trade Act of 1974 and
Amendments Thereto (WT/DS200/13)
Communication from the Chairman of the Dispute Settlement Body
(WT/DS200/13)
3 August 2000
...
With reference to your comments regarding the need to circulate not

only requests for consultations (Article 4.3 of the DSU) and requests to
be joined in consultations (Article 4.11 of the DSU), but also the various
responses to such requests to be joined into consultations, I have looked
into the matter and advised the Secretariat that it should resort to its
previous practice of circulating a Note identifying Members accepted to
participate in consultations pursuant to Article 4.11 of the DSU, where
such information has been made available to the Secretariat.
17
Annex VII: Communication from the

Director-General on Article 5 of the DSU
(WT/DSB/25)
Article 5 of the Dispute Settlement Understanding

Communication from the Director-General
WT/DSB/25
17 July 2001
The following communication from the Director-General, dated 13 July
2001 has been addressed to the Chairman of the DSB with the request
that it be circulated for the information of Members.
_______________
The Dispute Settlement Understanding is rightly considered a critical

aspect of the international trading system. It provides an avenue for the
Members to settle their disputes in a multilateral forum. Fortunately,
many disputes brought to the WTO have been settled through negotiated
mutually acceptable solutions. However, many have also required panel
and Appellate Body proceedings.
I am of the view that Members should be afforded every opportunity to
settle their disputes through negotiations whenever possible. Article 5 of
the DSU provides for the use of good offices, conciliation and mediation,
but this Article has not been used since the inception of the WTO. In light
of that, I would like to call Members attention to the fact that I am ready
and willing to assist them as is contemplated in Article 5.6. It is time to
make this provision operational.
There are two attachments to this letter which will assist Members in
this regard. Attachment A is a short background note and Attachment B
provides some simple procedures for Members to use to request
assistance.
I would like to emphasize that these procedures are purely to help
Members resolve their differences and do not limit their treaty rights in
313
any manner. I would also like to assure Members that these procedures
do not in any way limit my availability to assist delegations more
generally whenever they request my help.
I look forward to working with delegations and hope the note will
prove useful to Members that might wish to avail themselves of the
provisions of Article 5.
Attachment A
Background Note Regarding Requests for Good Offices,
Conciliation and Mediation Pursuant to Article 5 of the DSU
Article 5 of the DSU, Good Offices, Conciliation and Mediation, has never
been utilised. The predecessor procedures under the GATT were only
rarely used.1 Specifically, Article 5.6 provides that the Director-General
may, acting in his ex officio capacity, offer good offices, conciliation or
mediation to the parties to a dispute. This authority is considered inher-
ent in the post even though not further detailed in law.2 Thus, no new
powers are being provided to the Director-General by this provision;
rather, he may exercise his normal powers to assist Members in negoti-
ating and resolving disagreements.3
Historical Background
The 1979 Understanding on dispute settlement provided for the use of
good offices to settle disputes. Paragraph 8 of the Understanding stated as
follows:
If a dispute is not resolved through consultations the Contracting Parties
concerned may request an appropriate body or individual to use their
good offices with a view to the conciliation of the outstanding differences
1
We do not include actions taken pursuant to the provisions of the Decision of 5 April 1966
(BISD 14S/18). These are now covered by Article 3.12 of the DSU and are taken in lieu of
action under Articles 4, 5, 6, and 12 of the DSU. The 1966 Decision provides some specific
procedural rules.
2
Black’s Law Dictionary provides the following definition of ex officio: “From office; by
virtue of the office; without any other warrant or appointment than that resulting
from the holding of a particular office. Powers may be exercised by an officer which
are not specifically conferred upon him, but are necessarily implied in his office;
these are ex officio. Thus, a judge has ex officio the powers of a conservator of the
peace.”
3
This should be distinguished from the provision for formal arbitration provided for in
Article 25 as an alternative to dispute settlement procedures.
annex vii: communication on article 5 of the dsu 315
between the parties. If the dispute is one in which a less-developed
contracting party has brought a complaint against a developed contract-
ing party, the less developed contracting party may request the good
offices of the Director-General who, in carrying out his tasks, may consult
with the Chairman of the CONTRACTING PARTIES and the Chairman
of the Council.4
This provision was resorted to unsuccessfully by the United States and

the European Communities in 1982 regarding their dispute over EC tariff
treatment of citrus products. Also in 1982, the Ministerial Declaration
stated as follows:
With reference to paragraph 8 of the Understanding, if a dispute is not
resolved through consultations, any party to a dispute may, with the
agreement of the other party, seek the good offices of the Director-
General or of an individual or group of persons nominated by the
Director-General. This conciliatory process would be carried out exped-
itiously, and the Director-General would inform the Council of the
outcome of the conciliatory process. . ..5
In 1987–1988 this procedure was used by Japan and the European

Communities to assist in the resolution of their dispute concerning
pricing and trading practices for copper in Japan. The Director-General
nominated a personal representative to submit a report on the dispute.
In addition, another outside expert was retained to assist in developing
the factual basis for the report. The Director-General communicated to
the Contracting Parties a report which included a short factual finding
as well an “advisory opinion” to the effect that the European Commu-
nities and Japan should enter into mutually advantageous and recipro-
cal negotiations regarding certain Japanese tariffs as part of the
Uruguay Round.6
In 1988 the Director-General reported that he had been requested to
provide good offices by Canada and the European Communities. As
requested by the parties, he provided an advisory opinion on a question
that arose during Article XXIV negotiations regarding whether a tariff
concession granted by Portugal to Canada included wet salted cod.7
4
Understanding on Notification, Consultation, Dispute Settlement and Surveillance of
28 November 1979 (26S/210).
5
Ministerial Declaration of 29 November 1982, Decision on Dispute Settlement (29S/13).
6
Measures Affecting the World Market for Copper Ores and Concentrates, Note by the
Director General (36S/199).
7
C/M/225, p. 2.
Paragraph D of the Decision of 12 April 1989 on Improvements to the
GATT Dispute Settlement Rules and Procedures (36S/61), provided
further rules for requesting good offices. These new rules are quite similar
to the current Article V of the DSU. Also, the reference to appointing a
personal representative of the Director-General contained in the
1982 Decision was dropped. There is no record that this provision was
utilized.
Current Proposal
The Director-General is of the view that Members should attempt to
settle disputes as often as possible without resort to panel and Appel-
late Body procedures. In this regard, he wishes Members to be aware
of his willingness to actively support attempts to settle their disputes
through use of good offices, conciliation and mediation. Unlike the
situation under the 1982 Decision, there is no explicit authorization
for appointment of another person to conduct the proceeding. Instead
the DSU provides that this is to be considered part of the Director-
General’s ex officio powers.8 Thus, it is appropriate that there be closer
involvement of the Director-General as these are the powers specific-
ally derived from his office. Therefore, it is contemplated that the
proceedings will be handled directly by the Director-General or, with
the concurrence of the parties, a designated Deputy Director-General.
There will, necessarily, need to be provision for assistance from the
Secretariat or, following consultation with the parties, other consult-
ants retained for these purposes.
Another distinction arises in light of the considerably different situ-
ations existing with respect to dispute settlement under the GATT and
the WTO. The negative or reverse consensus rule which provides cer-
tainty in access to the dispute settlement system as well as the introduc-
tion of an appellate process to ensure greater consistency have
significantly changed the nature of the dispute settlement system. In light
of these changes, the Director-General does not expect to provide “advis-
ory opinions”, strictly speaking, although informal non-legal advice
regarding the best path to finding a solution may be appropriate. Legal
conclusions regarding a particular dispute are best left to the formal
8
Obviously, as these are ex officio powers to be used in this specific setting, it follows that
the Director-General could offer his services to assist in settling disagreements between
Members in other settings. The language of Article 5 should not be seen as limiting his role
elsewhere.
dispute settlement process. Rather, Article 5 proceedings should be seen
more as efforts to assist in reaching a mutually agreed solution. It
should also be recalled that Article 25 provides for Arbitration and
the Director-General does not wish to encroach upon this provision of
the DSU.
In light of the above, the Director-General proposes to provide some
procedural steps for parties to take when requesting Article 5 proceedings
and such steps would be based on the following considerations:
1. Requests under Article 5 may only be made after commencement of a
formal dispute pursuant to a request for consultations in accordance
with Article 4 of the DSU. The nature of the Article 5 request should
be specified.9
2. The Director-General should meet with the parties as soon as possible
after a request to: (a) listen to their views of the dispute; (b) assess the
resources that he should devote to the process to help reach a settle-
ment;10 and (c) provide any preliminary assessments as might seem
appropriate.
3. The Director-General may designate a Deputy Director-General to
assist and/or act in his stead. Except for the limited case of good
offices, the Director-General or designated Deputy Director-General
shall be present at meetings held pursuant to the process. As this is an
exercise of ex officio powers, further delegation beyond the Deputy
Director-General level should be avoided.
4. The Director-General may provide Secretariat staff to support the
process as he deems appropriate. Care will be taken to insulate
such staff from involvement in formal dispute settlement proced-
ures in order to ensure the objectivity of the Secretariat.11 To the
extent necessary, outside consultants could be retained to assist in
the process.
5. The Director-General and the Deputy Directors-General are not dir-
ectly involved in on-going panel and Appellate Bodies cases so no
9
Good offices, conciliation and mediation are seen as three different levels of involvement
of the Director-General with good offices being overseeing of logistical and Secretariat
support, conciliation involving direct participation in negotiations and mediation includ-
ing the possibility of actually proposing solutions, if appropriate. Flexibility is to be
maintained with regard to changing the role.
10
This will, in any event, vary depending on the type of assistance requested.
11
As a general matter, staff from Divisions primarily responsible for dispute settlement will
not be involved in Article 5 proceedings.
further “firewalls” should be necessary in this regard.12 With respect to
other staff and consultants it would be necessary to require that they
have no direct involvement in the dispute in question either before or
after the Article 5 procedures. This should already be covered by the
Rules of Conduct and no further action would be required.
Attachment B
Procedures for Requesting Action Pursuant to Article 5 of the DSU
1. Any time after a request for consultations is made pursuant to Article
4 of the DSU, any party to the dispute13 may submit a request to the
Director-General14 for provision of good offices, conciliation or
mediation.15
2. Such request shall identify whether the request is for good offices,
conciliation and/or mediation. It is recognized that the Director-
General’s role may change during the process if the parties agree.
Such a request shall include any proposed issues for such proceedings,
which may include any or all of the issues included in the request for
consultations.
3. The Director-General shall meet with the parties within 5 days to
discuss the issues raised. If all parties to the dispute agree, the
Director-General shall proceed forward with an offer of good offices,
conciliation and/or mediation. The Director-General shall arrange
further meetings with the parties as appropriate.
4. As soon as possible, the Director-General shall identify to the parties
any Secretariat staff or, after consultation with the parties, consultants
that will assist him in carrying out the procedures.
12
Article 8.7 of the DSU provides that the Director-General shall determine the compos-
ition of the panel if requested by one of the parties. As a general matter, this role would
not seem to involve a substantive conflict of interest and, in any event, is specifically
contemplated by Articles 5.6 and 8.7 taken together.
13
Article 1.1 of the DSU indicates that a “dispute” in this context arises upon initiation of
consultations pursuant to Article 4.
14
References to the Director-General may, upon concurrence of the parties, include a
designated Deputy Director-General.
15
Good offices shall consist primarily of providing physical support and Secretariat assist-
ance to the parties. Conciliation shall consist of good offices plus the further involvement
of the Director-General in promoting discussions and negotiations between the parties.
Mediation shall consist of conciliation plus the possibility of the Director-General to
propose solutions to the parties.
5. The process shall be terminated upon the request of any party to the
dispute, except in a circumstance where there are two or more com-
plainants and at least one complainant and the respondent wish to
continue in the process. In such situations, the Director-General shall
continue his efforts with respect to the remaining parties.
6. A process which has been terminated may be re-started at any time by
the request of the parties. The considerations of the previous para-
graph regarding multiple party situations shall apply mutatis
mutandis.
7. Ex parte communications are permitted. All communications made
during the process shall remain confidential and shall not be revealed
at any time, including during any other procedures undertaken pur-
suant to the DSU.
8. There shall be no third party participation in the process unless the
parties to the dispute mutually agree.
9. If a mutually agreed solution to a dispute is reached pursuant to an
Article 5 process, the notification to the DSB and relevant Councils
and Committees pursuant to Article 3.6 shall so indicate.
18
Annex VIII: Decision of 5 April 1966 on

Procedures under Article XXIII (BISD 14S/18)
The CONTRACTING PARTIES,

Recognizing that the prompt settlement of situations in which a contract-
ing party considers that any benefits accruing to it directly or indir-
ectly from the General Agreement are being impaired by measures
taken by another contracting party, is essential to the effective func-
tioning of the General Agreement and the maintenance of a proper
balance between the rights and obligations of all contracting parties;
Recognizing further that the existence of such a situation can cause severe
damage to the trade and economic development of the less-developed
contracting parties; and
Affirming their resolve to facilitate the solution of such situations while
taking fully into account the need for safeguarding both the present
and potential trade of less-developed contracting parties affected by
such measures;
Decide that:
1. If consultations between a less-developed contracting party and a
developed contracting party in regard to any matter falling under
paragraph 1 of Article XXIII do not lead to a satisfactory settlement,
the less-developed contracting party complaining of the measures
may refer the matter which is the subject of consultations to the
Director-General so that, acting in an ex officio capacity, he may use
his good offices with a view to facilitating a solution.
2. To this effect the contracting parties concerned shall, at the
request of the Director-General, promptly furnish all relevant
information.
3. On receipt of this information, the Director-General shall consult
with the contracting parties concerned and with such other contract-
ing parties or inter-governmental organizations as he considers
appropriate with a view to promoting a mutually acceptable solution.
320
annex viii: decision of 5 april 1966 321
4. After a period of two months from the commencement of the
consultations referred to in paragraph 3 above, if no mutually satis-
factory solution has been reached, the Director-General shall, at the
request of one of the contracting parties concerned, bring the matter
to the attention of the CONTRACTING PARTIES or the Council,
to whom he shall submit a report on the action taken by him,
together with all background information.
5. Upon receipt of the report, the CONTRACTING PARTIES or the
Council shall forthwith appoint a panel of experts to examine
the matter with a view to recommending appropriate solution. The
members of the panel shall act on a personal capacity and shall be
appointed in consultation with, and with the approval of, the con-
tracting parties concerned.
6. In conducting its examination and having before it all the back-
ground information, the panel shall take due account of all the
circumstances and considerations relating to the application of the
measures complained of, and their impact on the trade and eco-
nomic development of affected contracting parties.
7. The panel shall, within a period of sixty days from the date the
matter was referred to it, submit its findings and recommendations
to the CONTRACTING PARTIES or to the Council, for consider-
ation and decision. Where the matter is referred to the Council, it
may, in accordance with Rule 8 of the Intersessional Procedures
adopted by the CONTRACTING PARTIES at their thirteenth
session,1 address its recommendations directly to the interested
contracting parties and concurrently report to the CONTRACT-
ING PARTIES.
8. Within a period of ninety days from the date of the decision of the
CONTRACTING PARTIES, or the Council, the contracting party
to which a recommendation is directed shall report to the CON-
TRACTING PARTIES or the Council on the action taken by it in
pursuance of the decision.
9. If on examination of this report it is found that a contracting party to
which a recommendation has been directed has not complied in full
with the relevant recommendation of the CONTRACTING
PARTIES or the Council, and that any benefit accruing directly or
indirectly under the General Agreement continues in consequence to
1
7S/7.
be nullified or impaired, and that the circumstances are serious
enough to justify such action, the CONTRACTING PARTIES
may authorize the affected contracting party or parties to suspend,
in regard to the contracting party causing the damage, application of
any concession or any other obligation under the General Agreement
whose suspension is considered warranted, taking account of the
circumstances.
10. In the event that a recommendation to a developed country by the
CONTRACTING PARTIES is not applied within the time-limit
prescribed in paragraph 8, the CONTRACTING PARTIES shall
consider what measures, further to those undertaken under para-
graph 9, should be taken to resolve the matter.
11. If consultations, held under paragraph 2 of Article XXXVII, relate to
restrictions for which there is no authority under any provisions of
the General Agreement, any of the parties to the consultations may,
in the absence of a satisfactory solution, request that consultations be
carried out by the CONTRACTING PARTIES pursuant to para-
graph 2 of Article XXIII and in accordance with the procedures set
out in the present decision, it being understood that a consultation
held under paragraph 2 of Article XXXVII in respect of such restric-
tions will be considered by the CONTRACTING PARTIES as
fulfilling the conditions of paragraph 1 of Article XXIII if the parties
to the consultations so agree.
19
Annex IX: Decision of 12 April 1989 on

Improvements to the GATT Dispute Settlement
Rules and Procedures (BISD 36S/61)
Following the meetings of the Trade Negotiations Committee at Minis-

terial level in December 1988 and at the level of high officials in April
1989, the CONTRACTING PARTIES to the General Agreement on
Tariffs and Trade
Approve the improvements of the GATT dispute settlement rules and
procedures set out below and their application on the basis set out in this
Decision:
G. Adoption of Panel Reports
1. In order to provide sufficient time for the members of the Council to

consider panel reports, the reports shall not be considered for adop-
tion by the Council until thirty days after they have been issued to the
Contracting Parties.
2. Contracting parties having objections to panel reports shall give
written reasons to explain their objections for circulation at least ten
days prior to the Council meeting at which the panel report will be
considered.
3. The parties to a dispute shall have the right to participate fully in
the consideration of the panel report by the Council, and their
views shall be fully recorded. The practice of adopting panel
reports by consensus shall be continued, without prejudice to the
GATT provisions on decision-making which remain applicable.
However, the delaying of the process of dispute settlement shall
be avoided.
4. The period from the request under Article XXII:1 or Article XXIII:1
until the Council takes a decision on the panel report shall not, unless
agreed to by the parties, exceed fifteen months. The provisions of
this paragraph shall not affect the provisions of paragraph 6 of
Section F(f).
323
H. Technical Assistance
1. While the Secretariat assists Contracting Parties in respect of dispute

settlement at their request, there may also be a need to provide
additional legal advice and assistance in respect of dispute settlement
to developing Contracting Parties. To this end, the Secretariat shall
make available a qualified legal expert within the Technical Co-
operation Division to any developing contracting party which so
requests. This expert shall assist the developing contracting party in
a manner ensuring the continued impartiality of the Secretariat.
2. The Secretariat shall conduct special training courses for interested
Contracting Parties concerning GATT dispute settlement procedures
and practices so as to enable Contracting Parties’ experts to be better
informed in this regard.
I. Surveillance of Implementation of Recommendations

and Rulings
1. Prompt compliance with recommendations or rulings of the CON-
TRACTING PARTIES under Article XXIII is essential in order to
ensure effective resolution of disputes to the benefit of all Contracting
Parties.
2. The contracting party concerned shall inform the Council of its
intentions in respect of implementation of the recommendations or
rulings. If it is impracticable to comply immediately with the recom-
mendations or rulings, the contracting party concerned shall have a
reasonable period of time in which to do so.
3. The Council shall monitor the implementation of recommendations
or rulings adopted under Article XXIII:2. The issue of implementation
of the recommendations or rulings may be raised at the Council by
any contracting party at any time following their adoption. Unless the
Council decides otherwise, the issue of implementation of the recom-
mendations or rulings shall be on the agenda of the Council meeting
after six months following their adoption and shall remain on the
Council’s agenda until the issue is resolved. At least ten days prior to
each such Council meeting, the contracting party concerned shall
provide the Council with a status report in writing of its progress in
the implementation of the panel recommendations or rulings.
4. In cases brought by developing Contracting Parties, the Council shall
consider what further action it might take which would be appropriate
to the circumstances, in conformity with paragraphs 21 and 23 of the
annex ix: decision of 12 april 1989 325
1979 Understanding regarding Notification, Consultation, Dispute
Settlement and Surveillance (BISD 26S/214).
The footnote to paragraph F(a) provides: References to the Council,
made in this paragraph as well as in the following paragraphs, are
without prejudice to the competence of the CONTRACTING
PARTIES, for which the Council is empowered to act in accordance
with normal GATT practice (BISD 26S/215).

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WORLD TRADE ORGANIZATION

A Handbook on the WTO Dispute Settlement System

Prepared by the Legal Affairs Division and the Rules Division of

Cambridge University Press is part of the University of Cambridge.

Prepared by the Legal Affairs Division and the Rules Division of

Cambridge University Press is part of the University of Cambridge.

Prepared by the Legal Affairs Division and the Rules Division of

Cambridge University Press is part of the University of Cambridge.

2 Actors in the WTO Dispute Settlement Process 21

4 The Stages in a Typical WTO Dispute 49

8 Developing Countries in the WTO Dispute Settlement

9 Ongoing Efforts to Improve the WTO Dispute Settlement

10 Further Information and Resources 186

15 Annex V: Working Procedures for Appellate Review

17 Annex VII: Communication from the Director-General on

19 Annex IX: Decision of 12 April 1989 on Improvements to

The WTO Secretariat has prepared this publication to assist public

Introduction to the WTO Dispute

Importance of the Dispute Settlement System in the WTO

Functions, Objectives and Key Features of the Dispute

Clariﬁcation of Rights and Obligations through Interpretation

Article 31 General rule of interpretation

Article 32 Supplementary means of interpretation

“Mutually Agreed Solution” as “Preferred Solution”

Prompt Settlement of Disputes

Exclusive and Compulsory Jurisdiction

An Integrated Set of Rules and Procedures

Actors in the WTO Dispute Settlement Process

The operation of the WTO dispute settlement process involves a number

Parties and Third Parties

No Direct Access for Non-State Actors

Decision-making in the DSB

Role of the DSB Chairperson

The WTO Secretariat

The WTO Secretariat Staff

Administrative and Legal Support to Panels and Arbitrators

Composition and Structure of the Appellate Body

The Appellate Body Secretariat

The Scope of WTO Disputes

When Can a Dispute be Initiated?

Measures Attributable to a WTO Member

Challenges to Measures “As Such” and “As Applied”

A Special Case: Anti-Dumping Measures

What Claims Can be Raised?

Violation, Non-violation and Situation Complaints

The Stages in a Typical WTO Dispute

This chapter explains the various stages of a WTO dispute.1 In principle,

Legal Basis and Requirements for a Request for Consultations

Procedure for Consultations

Third Parties in Consultations

Procedures for the Establishment of Panels by the DSB

Multiple Complainants: Joint Panels and Separate Panels with

The Panel’s Terms of Reference

such ﬁndings as will assist the DSB in making the recommendations or in

Third Parties before the Panel

Timing of the Request

Enhanced Third-party Rights In addition to the limited rights foreseen

The Panel Review Process

Meetings with the Parties

Substantive Meetings of the Panel with the Parties Appendix 3 of the

Deliberation of the Panel

The Special Standard of Review in Article 17.6 of the Anti-Dumping

Burden of Proof, Standard of Proof and Rules of Evidence