DSU Review   

Cuba, Honduras, India, Malaysia, Pakistan, Sri Lanka, Tanzania and Zimbabwe TN/DS/W/18, Jamaica TN/DS/W/18/Add.1

Add to paragraph 6:

(b) Developed-country Members that adopt measures against developing or least-developed country Members and withdraw them in the course of consultations or 90 days before the commencement of consultations pursuant to Article 4 of this Understanding shall notify them individually or jointly to the DSB within 60 days of their withdrawal. The notification shall, describe the measure and the reason or circumstances for the withdrawal, state whether consultations were held and finalised, and indicate the amount of injury to the developing or least-developed country Member resulting from the measure. Disputes over the amount of injury may be referred to arbitration under Article 25 of this Understanding.

(c) Where injury has resulted from the withdrawn measure, and if the developing or least-developed country Member so requests, the DSB may recommend monetary and any other appropriate compensation taking into account the nature of injury suffered. The level of compensation shall be determined by arbitration in accordance with Article 25 of this Understanding and shall be implemented mutatis mutandis in accordance with Articles 21 and 22.

(d) The requests referred to in paragraph (c) may be made at the meeting of the DSB considering the notification of the withdrawn measures or subsequently within a period of 60 days, unless there are exceptional circumstances justifying the consideration of the request at a later date.

New Article after Article 3: Article 3bis: Litigation Costs

In a dispute involving a developing country Member and a developed country Member as a complaining party and as a party complained against, respectively, or vice versa, and where that dispute does not end with a panel or the Appellate Body finding against the former, the panel or the Appellate Body shall award litigation costs to the developing-country Member to the tune of US$500,000 or actual expenses, whichever is higher . The litigation costs shall include lawyers’ fees, charges and all other expenses for, preparation of necessary documents and participation in, the consultations, panel and the Appellate Body proceedings. The litigation costs shall also include travel, hotel, perdiem and other expenses for a reasonable number of the Capital based officials.

China TN/DS/W/51/Rev.1

(replaces TN/DS/W/51)

Amend paragraph 7: replace the numeral "60" by the numeral "30" wherever it appears.(new footnote)
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(new footnote) Where one or more of the parties is a developing-country Member, the time period established in paragraph 7 of Article 4 shall, if the developing-country Member request, be extended by up to 30 days.

Costa Rica
TN/DS/W/12/Rev.1

replaces TN/DS/W/12

Amend paragraph 11: Whenever a Member other than the consulting Members considers that it has a substantial trade interest in consultations being held pursuant to paragraph 1 of Article XXII of GATT 1994, paragraph 1 of Article XXII of GATS, or the corresponding provisions in other covered agreements4, such Member may notify the consulting Members and the DSB, within 10 days after the date of the circulation of the request for consultations under said Article, of its desire to be joined in the consultations. 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.

Amend Paragraph 10: "It is suggested that the word "should" be replaced by "shall" so as to make this S&D provision mandatory.

The precise operational content of the phrase "give special attention" is not defined. It is proposed that:

(a) if the complaining party is a developed Member and if it decides to seek establishment of a panel, it should be made mandatory for it to explain in the panel request as well as in its submissions to the panel as to how it had taken or paid special attention to the particular problems and interests of the responding developing country;

(b) if the developed Member is a defending party, it should be made mandatory for it to explain in its submissions to the panel as to how it had addressed or paid special attention to the particular problems and interests of the complaining developing country;

(c) the Panel, while adjudicating the matter referred to it, should give ruling on this matter."

Amend paragraph 7: replace numeral "60" wherever it occurs with numeral "30" and add footnote at end of paragraph:

Where one or more of the parties is a developing country Member, the time period established in paragraph 7 of Article 4 shall, if the parties agree, be extended by up to 30 days. Any other party to the dispute shall accord sympathetic consideration to a request by a developing country Member for such an extension.

Amend paragraph 10: During consultations Members should shall give special attention to the particular problems and interests of developing country Members.

New paragraph 12: A request for consultations may be withdrawn at any point of time. A request for consultations shall be deemed to have been withdrawn by the complaining party if that Party has not submitted a request for the establishment of a panel within 18 months after the date of receipt of the request for consultations by the defending party.

Amend paragraph 10: During consultations Members shall should give special attention to developing-country Members' particular problems and interests of developing country Members in the following manner:

(a) if the complaining party is a developed country Member and if it decides to seek establishment of a panel, it shall explain in the request for establishment of panel as well as in its submissions to panel and the Appellate Body as to how it had taken into account or paid special attention to the particular problems and interests of the developing country Member concerned;

(b) if the developed country Member is a defending party, it shall explain in its submissions to the panel as to how it had taken into account or paid special attention to the particular problems and interests of the developing country Member concerned;

(c) the Panel, while adjudicating the matter referred to it, shall make a ruling on this issue.

Jordan TN/DS/W/53

replaces
TN/DS/W/43

Jamaica TN/DS/W/44/Rev.1

replaces TN/DS/W/44

Japan
TN/DS/W/32

Jordan
TN/DS/W/43

Article 5 bis Questions of Interpretation

1. Parties and third parties to a dispute may at any stage of the proceedings refer questions of interpretation to the General Council in accordance with this Article.

2. Question(s) shall be laid before the General Council by means of a written request containing an exact statement of the queries upon which the interpretation is requested, accompanied by all documents likely to assist in addressing and answering the question(s).

3. The Secretariat shall promptly give notice of the request for an interpretation to other Members who may have a substantial interest in the outcome thereof.

4. Parties to the dispute, third parties and Members with substantial interest, that have presented written statements, shall follow the form, time-frame and other guidelines set by the General Council for this purpose.

5. Decisions of the General Council shall be taken by a three-fourths majority of the vote cast.

Amend paragraph 1: If the complaining party so requests, the DSB shall establish a panel at the meeting 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.(1)
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(1) In the event that the DSB decides not to establish a panel, if the complaining party so requests, a meeting of the DSB shall be convened for this the purpose of making a subsequent request for panel establishment within 15 days of the initial request, provided that at least 10 days' advance notice of the meeting is given.

China TN/DS/W/51/Rev.1

replaces TN/DS/W/51

Amend paragraph 1 (retain existing footnote): If the complaining party so requests(new footnote), a panel shall be established at the latest at the DSB meeting following that the DSB shall establish a panel at the meeting at which the request first appears as an item on the DSB's agenda, unless the DSB decides by consensus not to establish a panel.
_______________________
(new footnote) In a case involving a complaint against a developing-country Member, if the developing-country Member requests, the establishment of a panel shall be postponed at the DSB meeting following that at which the request first appears as an item on the DSB's agenda.

Amend paragraph 1 (retain existing footnote): If the complaining party so requests (new second footnote), a panel shall be established at the latest at the DSB meeting following that the DSB shall establish a panel at the meeting 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.
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(new second footnote) In a case involving a complaint against a developing country Member, the complaining party shall accord sympathetic consideration to a request from that Member to postpone the establishment of a panel due to particular circumstances.

New paragraph 3: A request for the establishment of a panel may be withdrawn at any point of time by the complaining party before the issuance of the final report. If the request is withdrawn, the authority for establishment of the panel shall lapse.

Jordan TN/DS/W/53

replaces
TN/DS/W/43

Amend paragraph 1: If the complaining party so requests (new footnote), a panel shall be established at the latest at the DSB meeting following that the DSB shall establish a panel at the meeting at which the request first appears as an item on the DSB's agenda, unless the DSB decides by consensus not to establish a panel.
_________
(new footnote) In a case involving a complaint against a developing country Member, the complaining party shall accord sympathetic consideration to a request from that Member to postpone the establishment of a panel due to particular circumstances.

Chile and the US TN/DS/W/89 and W/52

US TN/DS/W/82

Amend paragraph 2: Panel members should be selected with a view to ensuring the independence of the members, expertise to examine the matter at issue in the dispute, a sufficiently diverse background and a wide spectrum of experience.

New paragraph 3: A request for the establishment of a panel may be withdrawn at any point of time by the complaining party before the issuance of the final report. If the request is withdrawn, the authority for establishment of the panel shall lapse.

Jordan TN/DS/W/53

replaces
TN/DS/W/43

Amend paragraph 10: In disputes involving developing-country Members and/or least-developed country Members the following shall be applicable:

(a) When a dispute is between a developed-country Member and a developing-country Member the panel shall, if the developing country Member so requests, include at least one panelist from a developing-country Member should the latter request same within (85) days from the establishment of the panel.

(b) When a dispute is between a least-developed country Member and a developed-country Member the panel shall include one panelist from a least-developed country Member should the latter request same within (5) days from the establishment of the panel.

(c) When a dispute is between a developing-country Member and a least-developed country Member the panel shall include a panelist from a developing-country Member or a least-developed country Member should either one or both request same within (5) days from the establishment of the panel.

EU TN/DS/W/38

replaces TN/DS/W/1

New Article 8 (retain existing title):

1. Panels shall be composed of individuals included on the roster of panelists established by the DSB. The panelists shall be appointed by the DG on a random basis within 5 days from the establishment of the panel.

2. Notwithstanding paragraph 1, the parties may agree at the time of the establishment of the panel that panels may include up to two individuals from outside the roster with particular expertise on the subject matter of the dispute. The Chairman of the panel shall always be an individual included on the roster of panelists and will be appointed by the DG on a random basis within 5 days from the establishment of the panel. The parties may agree on the individuals outside the roster to serve on the panel or request the Director-General, in consultation with the parties and the Chairman of the panel to nominate these individuals. If no agreement has been reached on the panelists from outside the roster or no request for their nomination to the DG has been made within 10 days from the establishment of the panel, at the request of a party, those members of the panel shall be drawn from the roster by the DG on a random basis.

3. The roster shall include a number of persons as determined from time to time by the General Council. The DSB shall include persons on the roster for six-year terms and no person shall be re-appointed. However, the terms for the initial inclusion on the roster shall be either [three, four, five or six years], with an equal number appointed for each period, as determined by lot [and with those appointed for [three or four] years eligible exceptionally for re-appointment to six-year terms]. The roster should comprise persons of recognized authority, with demonstrated expertise in international trade law, economy or policy and the subject matter of the covered agreements generally, and/or past experience as a GATT/WTO panelist. It shall be broadly representative of membership in the WTO. All persons included on the roster shall stay abreast of dispute settlement activities and other relevant activities of the WTO.

4. Within three months after establishment of the initial roster, the panelists included on the roster shall draw up rules on conflict of interests to be applicable to the permanent panelists in the exercise of their duties and in determining their suitability to serve in any particular dispute. Such rules shall be drawn up in consultation with the Chairman of the DSB and the Director-General, and submitted to the DSB for adoption.

5. Panelists shall serve in their individual capacities and not as government 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.

6. The panelists included on the roster may draw up additional working procedures for panels as necessary to the extent not already provided for in the DSU. Such procedures shall be drawn up in consultation with the Chairman of the DSB and the Director-General, and submitted to the DSB for adoption.

7. Panelists shall be provided with appropriate administrative and legal support as required.

8. The expenses of panelists 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.

(b) When a dispute is between a least-developed country Member and a developing or developed country, the panel shall include at least one panelist from a least-developed country Member and if the least-developed country Member so requests, there shall be a second panelist from a least-developed country Member.

New understanding on panel composition (should require no new text):

The DSB will approve a ""Roster of Panel Chairs"" comprised of individuals who may be appointed as Chair of a Panel by lot. The number of individuals on the Roster shall be adjusted according to the level of demand for appointments from the Roster. An indicative list of potential candidates for inclusion in the Roster shall be prepared by the Director-General, all of whom should have the particular qualifications, experience and expertise as envisaged in Article 8 of the DSU, as well as prior experience as panelist; and should be available to serve as a Chair upon request.

An individual listed in the Roster shall not be nominated by the Secretariat to serve as a panelist pursuant to Article 8.6 of the DSU. An individual listed in the Roster may be included in a panel composed by the Director-General pursuant to Article 8.7 of the DSU, provided the individual is selected by drawing lot.

As provided under Article 8 of the DSU, the parties to a dispute may agree on a panel, or on individual panelists, based on nominations proposed by the Secretariat pursuant to Article 8.6 of the DSU.
18. If there is no agreement on the panelists within 20 days after the date of the establishment of a panel, any of the parties to the dispute may make a request to the Director-General to take the necessary action, within 10 days of the date on which the request is received, to:

(a) appoint the Chair of the panel, by drawing lot, from the Roster of Panel Chairs mentioned in paragraph 6 above; or

(b) determine the composition of the panel as provided for under Article 8.7 of the DSU, giving full effect to the prior appointment of a Panel Chair and/or any agreement by the parties on a panelist nominated by the Secretariat.

In situations where the Director-General has received concurrent requests from the parties to a dispute for the appointment of a Chair and the composition of the panel, the Director-General shall, in consultation with the parties, proceed to determine the composition of the panel as provided for under Article 8.7, including, where the Director-General considers it to be appropriate, through the selection, by drawing lot, of a Chair from the Roster of Chairs.

General questions to consider:
1. Do we want to facilitate the DG in the process of appointment of panelists?

2. Based on statistics shown on page 15 of the Mexican paper, it takes approximately 59 days on average for panel composition. Do we want to save as much as possible the time period at this stage, during which damage could be lessened?

3. How many chances are there for panelists whose names are on the above-mentioned List to be appointed, or proposed for appointment, as panelists?

4. Do we need an experienced panelist to serve as a panel chairman? Isn’t it in our interest to have an experienced panelist to sit as chairman?

5. Do we want to maintain the principle where parties to a dispute have control over the selection of panelists, on the one hand, and the need to expedite the process of panel composition, on the other hand, while having the assurance that at least one of the panelists is selected from a roster of qualified experts in WTO jurisprudence?

New Article 8bis

Accelerated time-frames for disputes on safeguard actions

1. The following accelerated time-frames shall apply to disputes on safeguard actions unless otherwise extended by mutual agreement of the parties to the dispute.

2. If the consultations fail to settle a dispute under Article 4 within 30 days of the request for consultations, any party to such consultations may refer the matter to the Dispute Settlement Body for the immediate establishment of a panel, unless the DSB decides by consensus not to establish a panel.

3. The time-frames in the Working Procedures of item 12 of Appendix 3 shall be halved.

4. The accelerated time-frames in this Article shall not apply to a dispute if a developing country party to that dispute requests the application of the standard DSU time-frames.

China TN/DS/W/51/Rev.1

replaces
TN/DS/W/51

further information on the proposal provided in TN/DS/W/57

New Article xx (with according revisions of the Anti-Dumping and Safeguards Agreements)

Shortened Time-Frame for Disputes Involving Safeguard and Anti-Dumping Measures

1. Time-periods applicable under the DSU for the conduct of disputes involving safeguard and anti-dumping measures shall be half of the normal time-frame.

2. If the defending party is a developing-country Member, the shortened time-frame shall not apply to the defending party.

African Group
TN/DS/W/15

African Group

Automatic admission as third party for developing countries:

"The issue of third parties needs clearer rules, stating that developing-country Members should not be required to demonstrate a trade or economic interest in the case as a precondition for admission as third parties; and that developing-country Members may always be admitted as third parties at whatever stage the case may be."

Article 10 should be amended by adding the following to paragraph 2:

1.  Any Member may participate as a third party before a panel by notifying its interest to do so to the DSB and shall have an opportunity to be heard by the panel and make written submissions to the panel. These submissions shall also be given to the parties to the dispute and shall be reflected in the report.

Article 10 should be further amended by replacing paragraph 3 with the following:

China TN/DS/W/51/Rev.1

replaces TN/DS/W/51

Costa Rica
TN/DS/W/12/Rev.1

replaces TN/DS/W/12

Costa Rica
TN/DS/W/12/Rev.1

replaces TN/DS/W/12

EU
TN/DS/W/1

EU
TN/DS/W/38, TN/DS/W/1

Japan
TN/DS/W/32

Panels as pure fact finding bodies:

"While the Appellate Body may be expanded to deal with the increasing number of disputes, there is no case for establishing a standing body of panelists. If the system of panelists needs change, consideration should be given to redefining the functions of the panels. Their new functions could be stated to be: the establishment of the facts and issues, and compilation of concise factual reports. The factual reports would then be forwarded to the Appellate Body for application of the relevant provisions. The Appellate Body could on this basis be renamed; for instance, as the WTO Tribunal"

Chile and the US
TN/DS/W/89 and W/52

US TN/DS/W/82

Chile and the US
TN/DS/W89 and W/52

US TN/DS/W/82

Costa Rica
TN/DS/W/12/Rev.1

replaces TN/DS/W/12

supported by the EU
TN/DS/W/38

Costa Rica
TN/DS/W/12/Rev.1

replaces TN/DS/W/12

supported by the EU
TN/DS/W/38

Costa Rica
TN/DS/W/12/Rev.1

replaces TN/DS/W/12

supported by the EU
TN/DS/W/38

Costa Rica
TN/DS/W/12/Rev.1

replaces TN/DS/W/12

supported by the EU
TN/DS/W/38

Amend Paragraph 10: In the context of consultations involving a measure taken by a developing-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 for not less than 15 days, in cases of urgency as envisaged in paragraph 8 of Article 4, and not less than 30 days in normal circumstances and, if so, for how long. In addition, in examining a complaint against a developing-country Member, the panel shall accord sufficient time, not less than two weeks extra in normal circumstance, for the developing Member to prepare and present its argumentation first written submission and not less than one week extra thereafter at each stage of written submission or presentation. The provisions of paragraph 1 of Article 20 and paragraph 4 of Article 21 are not affected by any action pursuant to this paragraph. The additional time taken above shall be added to the time-frames envisaged in Article 20 and paragraph 4 of Article 21.

EU
TN/DS/W/38

replaces TN/DS/W/1

African Group TN/DS/W/15

"Regarding the right of the panels to seek information, the negotiations should clarify the position and adopt new rules stating that: [...] the Appellate Body shall not receive information that is inconsistent with its exclusive function of examining questions of law and legal interpretations raised on appeal; the right under Article 13 does not refer to the Appellate Body but to panels; and in deciding whether to seek information the panels shall consult the parties and their legal advisors. .

Cuba, Honduras, India, Malaysia, Pakistan, Sri Lanka, Tanzania and Zimbabwe TN/DS/W/18, Jamaica TN/DS/W/18/Add.1

Amend paragraph 1: Each panel shall have the right to seek information and technical advice from any individual or body which it deems appropriate. However, before a panel seeks (new footnote 1) such information or advice from any individual 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. (new footnote 2)
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(new footnote 1): 'Seek' shall mean any information that is sought or asked for, or demanded or requested by the panels. Unsolicited information shall not be taken into consideration by the panels.
(new footnote 2): Footnote 1 [new footnote 1] shall also apply to the Appellate Body and arbitrator under this Understanding.

Jordan TN/DS/W/53

replaces
TN/DS/W/43

Add paragraph to EC's proposal: Article 13 bis
Amicus Curiae Submissions

8. Panelists and Appellate Body members shall promptly draw up in their respective working procedures rules and procedures that are considered necessary to regulate, operationalize and define the scope of this Article taking into consideration the interests and concerns of developing and least-developed country Members. These procedures shall include, inter alia, specific reference to a fund that would be established by (developed WTO country Members) with the aim of remitting any costs or expenses that may be incurred by a developing or a least-developed country Member in reviewing, analyzing and/or responding to issues raised in an unsolicited amicus curiae brief. The above-mentioned rules ad procedures shall be drawn up in consultation with the Chair of the DSB and the Director-General, and shall be submitted to the DSB for adoption.

Kenya
TN/DS/W/42

African Group

Add to paragraph 3: For purposes of this Article, “the right to seek information and technical advice” shall not be construed as a requirement to receive unsolicited information or technical advice.

Add new paragraph 3:

3.  In exercising the right to seek information and technical advice, the panel shall not accept or consider information or technical advice provided by any individual or body from whom the panel has not sought it.

New Article 13bis:

Article 13bis
Amicus curiae submissions

1. The panel or the Appellate Body may permit unsolicited amicus curiae submissions, provided that the panel or the Appellate Body have determined that they are directly relevant to the factual and legal issues under consideration by the panel or the Appellate Body and that they comply with the rules of this Article. In such a case, the panel or the Appellate Body shall consider the submissions in question, while not being obliged to address, in its report, the factual or legal arguments made in such briefs.

2. Any person, whether natural or legal, other than a party or third party to the dispute, wishing to make an amicus curiae submission to the panel or the Appellate Body, must apply for leave to file such a submission from the panel or the Appellate Body within 15 days from the date of the composition of the panel or within 5 days from the date of the notice of appeal, respectively.

3. An application for leave to file such a submission shall:

(a) be made in writing, be dated and signed by the applicant, and include the address and other contact details of the applicant;

(b) be in no case longer than three typed pages;

(c) contain a description of the applicant, including a statement of the membership and legal status of the applicant, the general objectives pursued by the applicant, the nature of the activities of the applicant, and the sources of financing of the applicant;

(d) demonstrate the direct interest that the applicant has in the factual or legal issues raised in the dispute;

(e) identify the specific issues of facts and law which the applicant intends to address in its submission and, in the case of a application submitted to the Appellate Body, the legal interpretations developed by the panel that are the subject of the notice of appeal;

(f) indicate why it would be desirable, in the interests of achieving a satisfactory settlement of the matter at issue, in accordance with the rights and obligations of WTO Members under the DSU and the other covered agreements, for the panel or Appellate Body to grant the applicant leave to file a submission in this appeal; and

(g) contain a statement disclosing whether the applicant has any relationship, direct or indirect, with any party or any third party to this dispute, as well as whether it has, or will, receive any assistance, financial or otherwise, from a party or a third party to this dispute in the preparation of its application for leave or its written brief.

4. The panel or the Appellate Body will review and consider each application for leave to file a submission and will, within 7 days from their receipt in the case of a panel, and within 3 days in the case of the Appellate Body, render a decision whether to grant or deny such leave. That decision shall be notified forthwith to the applicant by facsimile or electronic mail.

5. Any person, other than a party or a third party to this dispute, granted leave to file an amicus curiae submission, must make its submission to the panel within 15 days from the date of receipt of the notification, and to the Appellate Body within 3 days from such date.

6. A submission filed with the panel or the Appellate Body by an applicant granted leave to file such a brief shall:

(a) be dated and signed by the person filing the submission;

(b) be concise and in no case longer than 20 typed pages, including any appendices; and

(c) set out a precise statement, strictly limited to legal arguments in the case of a submission to the Appellate Body, supporting the applicant's position on the issues of facts and law with respect to which the applicant has been granted leave to file a submission.

7. The parties and the third parties to the dispute shall be given 10 days from the date of receipt of any submission filed by an applicant granted leave under this Article to comment on and respond to such submissions.

Costa Rica
TN/DS/W/12/Rev.1

replaces TN/DS/W/12

Chile and the US
TN/DS/W/89 and W/52

US TN/DS/W/82

Within 60 days after the date of circulation of a panel report to the Members, the DSB shall adopt the report 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.    The DSB may by consensus decide not to adopt a finding in the report or a basic rationale behind a finding.  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.

[No change proposed to footnote 7 in current DSU:] 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.

African Group

African Group

Chile and the US
TN/DS/W/89 and W/52

US TN/DS/W/82

Replace paragraph 4:

Article 17.4 should be amended by replacing it with the following:

4.  Only parties to the dispute, not third parties may appeal a panel report. Any Member that wishes to participate as a third party may notify its intention to the DSB and the Appellate Body. Third parties shall have a right to attend the proceedings and have an opportunity to be heard and to make written submissions to the Appellate Body.  Their submissions shall also be given to the parties to the dispute and shall be reflected in the Appellate Body report.

Amend paragraph 4:

Article 17.4 should be amended by adding the following as the last sentence:

Amend paragraph 5:

(a) As a general rule, the proceedings shall not exceed 90 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 circulate its report within 90 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 circulate its report.  In no case shall the proceedings exceed 120 days.

(b) Following the consideration of submissions and oral arguments, the Appellate Body shall issue an interim report to the parties to the dispute, including both the descriptive sections and the Appellate Body's findings and conclusions.  Within a period of time set by the Appellate Body, a party to the dispute may submit a written request for the Appellate Body to review precise aspects of the interim report prior to circulation of the final report to the Members.  At the request of a party to the dispute, the Appellate Body shall hold a further meeting with the parties to the dispute on the issues identified in the written comments.  If no party to the dispute submits comments within the comment period, the interim report shall be considered the final report and circulated promptly to the Members.  The Appellate Body shall include in its final report a discussion of the comments made at the interim review stage.

(c) The Appellate Body shall suspend its work where the parties to the dispute so agree. In the event of such a suspension, the time-frames set out in this paragraph, Article 20, and paragraph 4 of Article 21 shall be extended by the amount of time that the work was suspended.

Chile and the US
TN/DS/W/89 and W/52

US TN/DS/W/82

13.  Where the parties to the dispute fail to develop a mutually satisfactory solution, the Appellate Body shall submit its findings in the form of a written report to the DSB.  In such cases, the Appellate Body shall set out in its report the applicability of relevant provisions and the basic rationale behind any findings and recommendations that it makes.  The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel.  The Appellate Body shall not include in its report circulated to the Members any finding, any finding together with its basic rationale, or a basic rationale behind a finding (where there is more than one basic rationale behind the finding), that the parties to the dispute have agreed is not to be included.  Where the parties to the dispute have reached a solution to the matter, the report of the Appellate Body shall be confined to a brief description of the case and to reporting that a solution has been reached, and the report of the panel shall be void and of no legal effect.  Where the parties to the dispute have reached a solution to the appeal: (a) the report of the Appellate Body shall be confined to a brief description of the case and to reporting that a solution to the appeal has been reached, and (b) if a party to the dispute so requests, the DSB shall adopt the panel report within 21 days of circulation of the Appellate Body report, unless the DSB decides by consensus not to adopt the report.

Chile and the US
TN/DS/W/89 and W/52

US TN/DS/W/82

[No change proposed to footnote 8 in current DSU:] If a meeting of the DSB is not scheduled during this period, such a meeting of the DSB shall be held for this purpose.

Costa Rica
TN/DS/W/12/Rev.1

replaces TN/DS/W/12

supported by the EU
TN/DS/W/38

Cuba, Honduras, India, Malaysia, Pakistan, Sri Lanka, Tanzania and Zimbabwe TN/DS/W/18, Jamaica TN/DS/W/18/Add.1

Amend paragraph 2: "[...] all future appointments of Appellate Body members (i.e. any appointment which would be effected on or after 1 January 2004) should be for a non-renewable fixed term. It is felt that this non-renewable fixed term should be six years. [...]"

Cuba, Honduras, India, Malaysia, Pakistan, Sri Lanka, Tanzania and Zimbabwe TN/DS/W/18, Jamaica TN/DS/W/18/Add.1

In paragraph 4, make right to be heard non-discreationary

Jordan TN/DS/W/56

replaces
TN/DS/W/43

Amend paragraph 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 at least seven persons, three of whom shall serve on any one case. The total number of Appellate Body members may be modified from time to time by the General Council. Persons serving on the Appellate Body shall serve in rotation. Such rotation shall be determined in the working procedures of the Appellate Body.

EU TN/DS/W/38

Amend paragraph 10: The proceedings of the Appellate Body shall be confidential. However, the parties may agree within 5 days from the date of the notice of appeal that the hearing shall be open to the public in whole or in part. 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.

EU TN/DS/W/38

replaces TN/DS/W/1

Amend paragraph 12: The Appellate Body shall address each of the claims and issues raised in accordance with paragraph 6 during the appellate proceeding. In so far as the report of the panel or compliance panel does not contain sufficient factual findings so as to enable the Appellate Body to resolve the dispute, the Appellate Body shall explain in detail in its report the specific insufficiencies of the factual findings in order to allow any party to the dispute to request a remand of the matter or part thereof to the original panel. The Appellate Body shall also state the necessary findings of law and other directions so as to enable the panel to fully perform its task. The Parties can request the remand to the original Panel within 10 days from the adoption of the AB report by the DSB.

The AB shall recommend a period of time it considers necessary for the remand panel to complete its work.

Thailand
TN/DS/W/30

replaces TN/DS/W/2

India (on behalf of Cuba, Dominican Republic, Egypt,
Honduras, Jamaica and Malaysia)
TN/DS/W/47

supported by the EU TN/DS/W/38

General questions to consider:
1. Do we want each of AB members to hear and consider cases under assignment with sufficient time to deliberate among themselves and perhaps to have consultations among them en banc, when it is reported on page 15 of the Mexican paper that the AB has issued only 7.8 per cent of its total number of reports within the time frame of 60 days, and that presumably Ecuador could have lost US$14.7 million for the average time over schedule in an AB proceeding?

2. Don’t we want to allow the AB to set up in itself three separate chambers to hear disputes so that it would facilitate their work assignment at the same time so that any AB member will not be assigned to unnecessarily hear more disputes than others, and than they could focus themselves on legal issues raised by disputants based on their expertise in such areas?

3. Don’t we want to increase AB members at the time when we have the mandate to do so, or do we want to delay it until such time necessary where there may or may not be a mandate as such?

4. Do we want to have as many experts in different areas as possible to serve as AB Members, for example, in the areas of intellectual property, services, agriculture?

5. Would there be a lot of financial implications to the Membership as a whole if the number of AB members is increased from seven to nine?

6. Do we think that the AB is unable to handle the issue of collegiality if, and if only, the number of AB members is increased in a very conservative manner, for instance, two (from seven to nine, which is far from seven to twenty or thirty)?

EU TN/DS/W/38

replaces TN/DS/W/1

Add new article after Article 17:

Article 17bis
Remand procedure

The following special procedures shall apply for the remand procedure:

(1) When, following the adoption by the DSB of the Appellate Body report under paragraph 12 of Article 17, a remand is requested, the DSB shall establish the panel, consisting of the members of the original panel (footnote), within five days after the request has been forwarded to the Chair of the DSB.

(2) The terms of reference of the remand panel established under this paragraph shall be

"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 under paragraph 12 of Article 17 in document (reference to the Appellate Body's communication) and to make such findings in accordance with the findings of law and/or directions made by the Appellate Body under that provision, as will assist the DSB in making the recommendations or in giving the rulings provided in that/those agreement(s)".

(3) The remand panel shall circulate its report to the Members within the timeframe specified by the Appellate Body in its report under Paragraph 12 of Article 17. When the panel considers that it cannot issue its report within such timeframe, 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 remand panel to the circulation of the report to the Members exceed six months.

(4) On or after the date of circulation of the report of the remand panel, any party to the remand panel proceeding may request a meeting of the DSB to adopt the report, and the DSB shall meet 10 days after such a request unless the party requesting the meeting requests that the meeting be held at a later date. At that meeting, the remand panel report shall be adopted by the DSB and unconditionally accepted by the parties to the remand panel proceeding unless a party to the remand panel proceeding formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report. This adoption procedure is without prejudice to the right of Members to express their views on a remand panel report.

(5) In case the report of the remand panel is appealed, the Appellate Body proceedings, as well as the adoption of the Appellate Body report, shall be conducted in accordance with Article 17.
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(footnote) If any member of the original panel is not available, a replacement shall be appointed within 5 days after the date of establishment of the panel from the roster of panelists provided for in Article 8.

Jordan TN/DS/W/56

replaces TN/DS/W/43

Add new article after Article 17:

Article 17bis: Remand Procedure

The following special procedures shall apply for the remand procedure:

1. When, following the adoption by the DSB of the Appellate Body report under paragraph 12 of Article 17, a remand is requested, the DSB shall establish the panel, consisting of the members of the original panel , within five days after the request has been forwarded to the Chair of the DSB.

2. The terms of reference of the remand panel established under this paragraph shall be:

"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 under paragraph 12 of Article 17 in document … and to make such findings, in accordance with the findings of law and guidelines set by the Appellate Body under that provision, as will assist the DSB in making the recommendations or in giving the rulings provided in that/those agreement(s)".

3. The remand panel shall circulate its report to the Members within 90 days from the request. When the panel considers that it cannot issue its report within such time-frame, 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 remand panel to the circulation of the report to the Members exceed six months.

4. On or after the date of circulation of the report of the remand panel, any party to the remand panel proceeding may request a meeting of the DSB to adopt the report, and the DSB shall meet 10 days after such a request unless the party requesting the meeting requests that the meeting be held at a later date. At that meeting, the remand panel report shall be adopted by the DSB and unconditionally accepted by the parties to the remand panel proceeding unless a party to the remand panel proceeding formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report. This adoption procedure is without prejudice to the right of Members to express their views on a remand panel report.

5. In case the report of the remand panel is appealed, the Appellate Body proceedings, as well as the adoption of the Appellate Body report, shall be conducted in accordance with Article 17.

A Member proposing that a finding, or basic rationale behind a finding, in a panel or Appellate Body report should not be adopted by the Dispute Settlement Body shall submit the proposal in writing to the Dispute Settlement Body no later than 3 days (or the WTO working day following the 3rd day if the 3rd day is a non-working day for the WTO) after the issuance of the airgram convening the meeting at which the report is proposed to be considered (footnote). The Member shall specify in the proposal the finding, or the basic rationale, behind a finding at issue and give a brief description of the reason not to adopt.
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(footnote) In the case of a panel report, the Member shall submit the proposal no later than 3 days (or the WTO working day following the 3rd day if the 3rd day is a non-working day for the WTO) after the issuance of the airgram convening either: (1) the meeting at which the panel report is proposed to be considered if no party has filed a notice of appeal; or (2) the meeting at which the panel report together with the Appellate Body report is proposed to be considered if a party has filed a notice of appeal.

US TN/DS/W/86

Amend Article 18 by deleting in the title "with the Panel or Appellate Body".

Amend paragraph 1 of Article 18 by deleting "panel or Appellate Body" and inserting in its place "panel, Appellate Body, or arbitrator," both places that it occurs and by inserting the following footnote after the first appearance of the term "arbitrator":  As used in this Article, the expression "arbitrator" means any arbitrator under paragraph 3(c) of Article 21, Article 22, or Article 25.  [NOTE:  this list is intended to include all arbitration proceedings under the DSU and the references would need to be updated to reflect any amendments to the DSU.]

Amend paragraph 2 of Article 18 to read as follows:

"2.          Any document [add footnote:  'The term "document" does not include a document concerning an interim report or that is purely administrative in nature.'] that a Member provides to a panel, the Appellate Body, or an arbitrator shall be public, except for confidential information.  Nothing in this Understanding precludes a Member from disclosing statements of its own positions to the public.  A Member shall not disclose another Member's confidential information.  The Member submitting the confidential information shall provide within 15 days of the request of another Member a non-confidential summary of the information."

Amend Article 18 of the DSU by inserting the following new paragraph 3:

"3.          Each substantive meeting with the parties of a panel, the Appellate Body, or an arbitrator, and each meeting of a panel or arbitrator with an expert, shall be open for the public to observe, except for any portion dealing with confidential information." [Add note that the expression "observe" does not require physical presence in the meeting.]  [Add note that for purposes of this Article, the term "confidential information" means certain factual information designated as such by the Member at the time that Member submitted the information.]

Adopt the following Decision by the DSB:

"The Dispute Settlement Body directs the Secretariat to maintain the documents referenced in paragraph 2 of Article 18 in a central location and to make these documents available to the public, except for confidential information."

Adopt the following Decision by the DSB:

"A final report issued by a panel to the parties is an unrestricted document, except for any confidential information (as defined in Article 18).  Any interim report considered final by operation of the last sentence of paragraph 2 of Article 15 is unrestricted when considered final.

"This decision is without prejudice to the practice concerning the date of circulation of the report. [Add footnote:  That practice was established on a trial basis and under that practice a document is deemed to be circulated on the "date printed on the WTO document to be circulated with the assurance of the Secretariat that the date printed on the document was the date on which this document was effectively put in the pigeon holes of delegations in all three working languages."   (WT/DSB/M/2).]

Amend paragraph 2: The Secretariat shall make the written submissions of parties and third parties to the panel and the Appellate Body available to the public at the time of filing. However, if a party designates information contained in its written submissions as confidential, it shall as soon as is reasonably possible, provide the Secretariat with a redacted version of its written submission that can be made available to the public. The Secretariat shall establish and administer a dispute settlement registry at the WTO to facilitate public access to the written submissions of parties and third parties. The DSB shall establish rules and procedures governing the Secretariat’s administration of the registry.”

Add to paragraph 2: Where such information has been designated “business confidential” it shall be treated in accordance with the procedures in Appendix 5. Those procedures apply mutatis mutandis to business confidential information submitted to the arbitrator in arbitrations pursuant to paragraph 6 of Article 22.

Costa Rica
TN/DS/W/12/Rev.1

replaces TN/DS/W/12

supported by the EU
TN/DS/W/38

Amend paragraph 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. Each party and third party to a proceeding shall also, if requested by a Member, provide a non confidential summary of the information contained in its submissions that could be disclosed to the public, no later than 15 days after the date of either the request or the submission, whichever is later, or such other deadline as is agreed by the party and the requesting Member.

For purposes of this Article, the term "confidential information" means certain factual information designated as such by the Member at the time that Member submitted the information.

The expression "observe" does not require physical presence in the meeting.

Brazil
TN/DS/W/45/Rev.1

(modifies TN/DS/W/45)

New Article after Article 20: Article [21bis] Procedures Related to Measures Already Held Inconsistent with a Covered Agreement

1. A Member may request the establishment of a panel by the DSB under an expedited procedure whenever its rights are being nullified or impaired by the same Member taking a measure that has already been found to be inconsistent with a covered agreement by an adopted report. The panel shall be established at the same DSB meeting where it first appears on the agenda, unless the parties agree otherwise. Prior consultations are not required.

2. This panel shall be composed, whenever possible, by the same panelists having served in the panel that has already ruled on the measure at issue. In any case, the panel shall be composed within [10] days of the establishment of the panel.

3. The complaining party shall deposit its written submission within [x] days from the composition of the panel. The responding party shall submit its rebuttal within [x] days from the receipt of the complaining party’s submission.

4. Within [15] days after receipt of the rebuttal submission, the panel shall issue a decision to the parties declaring whether the measure at issue is the same as the measure previously declared WTO inconsistent.

4.1 In special circumstances and if the panel considers it necessary in order to reach this decision, it may convene a hearing in order to clarify aspects of the measure at issue.

5. If the panel finds that the measure at issue is different from the measure previously declared WTO inconsistent, the expedited procedure is terminated, and the complaining party may start panel procedures provided in Article 4 et seq of this Understanding.

6. If the panel finds that the measure at issue is the same as the measure previously declared WTO inconsistent, a hearing shall be held within [x] days in order for the parties to present their oral arguments related to the facts concerning the measure at issue.

7. The panel shall issue its report within [90] days after the date of the establishment of the panel.

8. Within [15] days after the date of circulation of the final report to the Members, the report shall be considered for adoption by the DSB meeting unless a party to the dispute formally notifies the DSB of its intention to appeal.

9. The Appellate Body proceedings in this case shall be conducted in accordance with Article 17 of this Understanding but shall not exceed 45 days from the date a party to the dispute formally notifies its decision to appeal to the date the Appellate Body circulates its report.

10. Where the panel or the Appellate Body concludes that the measure at issue is nullifying or impairing a Member’s rights, it shall take into account, in its report, the recommendations made by any report of the original case and, when appropriate, the time period determined for the implementation of the measure previously declared WTO inconsistent.

China TN/DS/W/51/Rev.1

replaces
TN/DS/W/51

Amend Paragraph 6 with the following text: Upon compliance with the recommendations or rulings of the DSB, the Member concerned shall submit to the DSB a written notification on compliance.

If the Member concerned has not submitted the above-mentioned notification by the date that is 20 days before the date of expiry of the reasonable period of time, then not later than that date the Member concerned shall submit to the DSB a written notification on compliance including the measures that it has taken, or the measures that it expects to have taken by the expiry of the reasonable period of time.

Costa Rica
TN/DS/W/12/Rev.1

replaces TN/DS/W/12

Amend Paragraph 2: "It is suggested that the word "should" be replaced by "shall", so as to make this provision mandatory.

The utility of the provision could be increased by clarifying the phrase "matters affecting the interests of developing-country Members". It is proposed that:

(a) this provision, having been placed at the beginning of the long and important Article 21, should be made mandatory, for the panels and Appellate Body to interpret it as an overarching provision in all disputes, involving a developing-country Member as a disputing party;

(b) if the defending party is a developing Member and the complainant, a developed Member,

(i) RPT: 15 months should be considered as normal RPT and if the measure at issue is change of statutory provisions or change of long held practice/policy (like QRs/BOP), RPT should be two to three years and panels/AB should indicate requirement of more RPT;

(ii) 21.5 Procedures: Consultations (i.e., opportunity to defend/explaining actions taken by it to comply or difficulties thereof) should be considered as mandatory; time for completion of 21.5 Panel proceedings should be increased from 90 days to 120 days; and the panel should give all due consideration as any normal panel would give to the particular situation of developing-country Members.

(iii) Filing of status report should be in alternative meetings rather than in every regular meeting.

(c) if the complaint is by a developing Member against a developed Member:

The defending developed-country Member should be given no more than 15 months of RPT in any circumstance; existing 90 days time limit for 21.5 procedures should be observed strictly. In case of delay, it should entail an obligation to compensate for continuing trade losses to the developing-country complainant."

Amend paragraph 2: Particular Attention should be paid to matters affecting the interests of developing country Members and least-developed country Members with respect to measures which have been subject to dispute settlement. (new footnote)
_________________________
(footnote) The footnote should refer to "circumstances when, with the most noble and good faith intentions, prompt compliance [in a least-developed country] may not be possible. In addition, there are conceivable circumstances when the imperative and the urgency of prompt compliance multiplies immensely, for instance, when the lack of prompt compliance is causing misery in an LDC."

Amend paragraph 7: If a matter is one that has been raised by a developing-country Member or a least-developed country Member, the DSB shall consider what further action it might take which would be appropriate to the circumstances the DSB shall take any further [appropriate] action in the circumstances.

Amend paragraph 8: If the case is one brought by a developing-country Member or a least-developed country Member, in considering what appropriate action might be taken to take, the DSB shall take into account not only the trade coverage of measures complained of, but also their impact on the economy and the development prospects of the developing-country Members or least-developed country Members concerned.

Amend paragraph 2: Particular attention shall should be paid to matters affecting the interests of developing country Members with respect to measures which have been subject to dispute settlement.

EC
TN/DS/W/38,

partly replaces TN/DS/W/1

Amend paragraph 3 (retain footnote 11 and 13): At a DSB meeting held within 30 days 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 recommendations and rulings of the DSB. If it is impracticable to comply immediately with the recommendations and rulings, the Member concerned shall have a reasonable period of time (new footnote) 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 withing 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. Any party may request such arbitration after 30 days from the date of the adoption by the DSB of the recommendations and rulings. If the parties cannot agree on an arbitrator within 10 days after referring the matter to arbitration, the arbitrator shall be drawn from the roster of panelists provided for in Article 8. The arbitrator shall issue its award to the parties within 45 days from the date of its appointment. In such arbitration, a guideline for the arbitrator 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.
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(new footnote) For purposes of this Understanding, the 'reasonable period of time' shall include the time period specified under paragraph 7 of Article 4 and paragraph 9 of Article 7 of the Agreement on Subsidies and Countervailing Measures.

(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.

Replace paragraph 5: During the reasonable period of time, each party to the dispute shall accord sympathetic consideration to any request from another party to the dispute for consultations with a view to reaching a mutually satisfactory solution regarding the implementation of the recommendations or rulings of the DSB.

Amend paragraph 6: (a) The DSB shall keep under surveillance the implementation of adopted recommendations or rulings. The issue of implementation of the recommendations 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 10 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.

(b) The Member concerned shall report on the status of its implementation of the recommendations or rulings of the DSB at each DSB meeting (footnote), where any Member may raise any point pertaining thereto, beginning 6 months after the date of adoption of the recommendations or rulings of the DSB, until the parties to the dispute have mutually agreed that the issue is resolved or until the DSB finds pursuant to Article 21bis that the Member concerned has complied. At least 10 days prior to each such DSB meeting, the Member concerned shall provide the DSB with a detailed written status report concerning its progress in the implementation of the recommendations or rulings.

(c) (i) Upon compliance with the recommendations or rulings of the DSB the Member concerned shall submit to the DSB a written notification on compliance.

(ii) If the Member concerned has not submitted a notification under subparagraph (c)(i) by the date that is 20 days before the date of expiry of the reasonable period of time, then not later than that date the Member concerned shall submit to the DSB a written notification on compliance including the measures that it has taken, or the measures that it expects to have taken by the expiry of the reasonable period of time. Where the notification refers to measures that the Member concerned expects to have taken, the Member concerned shall submit to the DSB a supplementary written notification no later than the expiry of the reasonable period of time, stating that it has, or has not, taken such measures, and indicating any changes to them.

(iii) Each notification under this subparagraph shall include a detailed description as well as the text of the relevant measures the Member concerned has taken. The notification requirement of this subparagraph shall not be construed to reduce the reasonable period of time established pursuant to paragraph 3 of Article 21.

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(footnote) The parties to the dispute may agree to waive this requirement for a particular DSB meeting.

Amend paragraph 6: (a) The DSB shall keep under surveillance the implementation of adopted recommendations or rulings. The issue of implementation of the recommendations or rulings may be raised at the DSB by any Member at any time following their adoption.

(b) The Member concerned shall report on the status of its implementation of the recommendations or rulings of the DSB at each DSB meeting , where any Member may raise any point pertaining thereto, beginning at the half point of the length of the reasonable period of time or 6 months after the date of adoption of the recommendations or rulings of the DSB, whichever is the earlier, until the parties to the dispute have mutually agreed that the issue is resolved or until the DSB finds pursuant to Article 21bis that the Member concerned has complied. At least 10 days prior to each such DSB meeting, the Member concerned shall provide the DSB with a detailed written status report concerning its progress in the implementation of the recommendations or rulings.

(c) (i) Upon compliance with the recommendations or rulings of the DSB the Member concerned shall submit to the DSB a written notification on compliance.

(ii) If the Member concerned has not submitted a notification under subparagraph (c)(i) by the date that is 20 days before the date of expiry of the reasonable period of time, then not later than that date the Member concerned shall submit to the DSB a written notification on compliance including the measures that it has taken, or the measures that it expects to have taken by the expiry of the reasonable period of time. Where the notification refers to measures that the Member concerned expects to have taken, the Member concerned shall submit to the DSB a supplementary written notification no later than the expiry of the reasonable period of time, stating that it has, or has not, taken such measures, and indicating any changes to them.

(iii) Each notification under this subparagraph shall include a detailed description as well as the text of the relevant measures the Member concerned has taken. The notification requirement of this subparagraph shall not be construed to reduce the reasonable period of time established pursuant to paragraph 3 of Article 21."

Amend paragraph 2: Notwithstanding anything contained in this Article, particular attention should shall be paid to matters affecting the interests of developing-country Members with respect to measures which have been subject to dispute settlement in the following manner:

(a) if the party complained against is a developing country Member and the complaining party, a developed country Member,

(i) the reasonable period of time under paragraph 3 this Article below should normally not be less than 15 months. If the measure at issue requires change of statutory provisions or change of long held practice/policy, the reasonable period of time should be at least two years. The arbitrator under paragraph 3 (c) of this Article may indicate, where the situation warrants, the requirement of a reasonable period of time beyond two years;

(ii) the complaining party should request consultations with the party concerned prior to seeking recourse to the proceedings under the terms of paragraph 5 of this Article. The time for completion of such proceedings should be increased from 90 days to 120 days. The panel should give consideration as may normally be given to the particular situation of developing country Members.

(iii) Filing of status report under the terms of paragraph 6 of this Article should be in alternative meetings rather than in every regular meeting of the DSB.

(c) if the complaint is by a developing country Member against a developed country Member:

reasonable period of time under the terms of paragraph 3 below should not exceed 15 months . Existing 90 days time limit for proceedings in accordance with paragraph 5 of this Article should be observed strictly. In case of delay the developed country Member concerned should offer mutually acceptable compensation for continuing trade loss to the developing country complainant.

New Article 21bis:

Article 21bis
Determination of Compliance

1. Where there is disagreement between the complaining party and the Member concerned as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations or rulings of the DSB, such disagreement shall be resolved through recourse to the dispute settlement procedures provided for in this Article. 2bis (footnote 1) (footnote 2).

2. The complaining party may request consultations under this Article at any time after:

(i) the Member concerned states that it does not need a reasonable period of time for compliance pursuant to paragraph 3 of Article 21;

(ii) the Member concerned has submitted a notification pursuant to paragraph 6(c) of Article 21 that it has complied with the recommendations or rulings of the DSB; or

(iii) ten days before the date of expiry of the reasonable period of time;

whichever is the earlier. Such request shall be made in writing.

The Member to which the request is made shall, unless otherwise agreed, reply to the request within 5 days after the date of its receipt and shall enter into consultations in good faith within 12 days from the date of circulation of the request so as to allow third parties to request to join the consultations.

3. If the Member does not respond or does not enter into consultations within the time periods mentioned in paragraph 2, or if at the end of the consultations referred to in the same paragraph, either party consider that the consultations have failed to settle the dispute, the complaining party may immediately request the establishment of a compliance panel consisting of the members of the original panel (footnote 3).

4. When requesting the establishment of a compliance panel, the complaining party shall identify the specific measures at issue and provide a brief summary of the legal basis of the complaint, sufficient to present the problem clearly. Unless the parties to the compliance panel proceeding agree on special terms of reference within 5 days from the establishment of the compliance panel, standard terms of reference in accordance with Article 7 shall apply to the compliance panel.

5. The DSB shall meet 10 days after such a request unless the complaining party requests that the meeting be held at a later date. At that meeting (footnote 4), the DSB shall establish a compliance panel, unless the DSB decides by consensus not to establish such a panel.

6. The compliance panel shall circulate its report to the Members within 90 days of the date of its establishment.

7. On or after the date of circulation of the report of the compliance panel, any party to the compliance panel proceeding may request a meeting of the DSB to adopt the report, and the DSB shall meet 10 days after such a request unless the party requesting the meeting requests that the meeting be held at a later date. At that meeting, the compliance panel report shall be adopted by the DSB and unconditionally accepted by the parties to the compliance panel proceeding unless a party to the compliance panel proceeding formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report. This adoption procedure is without prejudice to the right of Members to express their views on a compliance panel report.

8. In case the report of the compliance panel is appealed, the Appellate Body proceedings, as well as the adoption of the Appellate Body report, shall be conducted in accordance with Article 17.

9. If the compliance panel or the Appellate Body report finds that the Member concerned has failed to bring the measure found to be inconsistent with a covered agreement into compliance therewith or otherwise comply with the recommendations or rulings of the DSB in the dispute within the reasonable period of time, then :

(i) the Member concerned shall not be entitled to any further period of time for implementation following adoption by the DSB of the report of the compliance panel and, where the report of the compliance panel has been appealed, the report of the Appellate Body; and

(ii) after circulation of the compliance panel or the Appellate Body report, a complaining party that was a party to the compliance proceeding may request authorization from the DSB to suspend the application to the Member concerned of concessions or other obligations under the covered agreements pursuant to Article 22. The DSB shall grant authorization to such request only after the adoption of the compliance panel or Appellate Body report.

10. The compliance panel shall establish its own working procedures. The provisions of Articles 1 through 3, 8 through 14, 18, 19, 21.1, 21.2, 21.7, 21.8, 23, 24, 26 and 27.1 of the DSU shall apply to the compliance panel proceedings except to the extent that (i) such provisions are incompatible with the time frame provided in this Article, or (ii) this Article provides more specific provisions.
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(footnote 1) The procedures provided for in this Article shall apply to measures referred to in paragraph 9 (as amended) of Article 22
(footnote 2) This is without prejudice to the right of the parties to have recourse to normal dispute settlement procedures under this Understanding or to the procedures under Article 5 or Article 25.
(footnote 3) If any member of the original panel is not available, a replacement shall be appointed within 5 days after the date of establishment of the compliance Panel from the roster of panelists provided for in Article 8.
(footnote 4) In the case of a compliance Panel established pursuant to paragraph 9 of Article 22, the DSB shall establish the compliance Panel at the meeting requested by the Member concerned pursuant to that paragraph.

New Article after Article 21: Article 21bis Determination of Compliance

1. Where there is disagreement between the complaining party and the Member concerned as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations or rulings of the DSB, such disagreement shall be resolved through recourse to the dispute settlement procedures provided for in this Article. 2bis

2. The complaining party may request the establishment of a Compliance Panel consisting of the members of the original panel at any time after:

(i) the Member concerned states that it does not need a reasonable period of time for compliance pursuant to paragraph 3 of Article 21;

(ii) the Member concerned has submitted a notification pursuant to paragraph 6(c) of Article 21 that it has complied with the recommendations or rulings of the DSB; or

(iii) ten days before the date of expiry of the reasonable period of time;

whichever is the earlier. Such request shall be made in writing.

3. While consultations between the Member concerned and the complaining party are desirable, they are not required prior to a request for a Compliance Panel under paragraph 2.

4. When requesting the establishment of a Compliance Panel, the complaining party shall identify the specific measures at issue and provide a brief summary of the legal basis of the complaint, sufficient to present the problem clearly. Unless the parties to the Compliance Panel proceeding agree on special terms of reference within 5 days from the establishment of the Compliance Panel, standard terms of reference in accordance with Article 7 shall apply to the Compliance Panel.

5. The DSB shall meet 10 days after such a request unless the complaining party requests that the meeting be held at a later date. At that meeting , the DSB shall establish a Compliance Panel, unless the DSB decides by consensus not to establish such a panel.

6. The Compliance Panel shall circulate its report to the Members within 90 days of the date of its establishment.

7. On or after the date of circulation of the report of the Compliance Panel, any party to the Compliance Panel proceeding may request a meeting of the DSB to adopt the report, and the DSB shall meet 10 days after such a request unless the party requesting the meeting requests that the meeting be held at a later date. At that meeting, the Compliance Panel report shall be adopted by the DSB and unconditionally accepted by the parties to the Compliance Panel proceeding unless a party to the Compliance Panel proceeding formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report. This adoption procedure is without prejudice to the right of Members to express their views on a Compliance Panel report.

8. In case the report of the Compliance Panel is appealed, the Appellate Body proceedings, as well as the adoption of the Appellate Body report, shall be conducted in accordance with Article 17.

9. If the Compliance Panel or the Appellate Body report finds that the Member concerned has failed to bring the measure found to be inconsistent with a covered agreement into compliance therewith or otherwise comply with the recommendations or rulings of the DSB in the dispute within the reasonable period of time, the Member concerned shall not be entitled to any further period of time for implementation following adoption by the DSB of the report of the Compliance Panel and, where the report of the Compliance Panel has been appealed, the report of the Appellate Body.

10. The Compliance Panel shall establish its own working procedures. The provisions of Articles 1 through 3, 8 through 14 (other than paragraph 5 of Article 8), 18, 19, 21.1, 21.2, 21.7, 21.8, 23, 24, 26 and 27.1 of the DSU shall apply to the Compliance Panel proceedings except to the extent that (i) such provisions are incompatible with the time frame provided in this Article, or (ii) this Article provides more specific provisions.

Amend paragraph 2 with consequent change in paragraph 6:
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 within 10 days of such a request with any party having invoked the dispute settlement procedures, with a view to developing mutually acceptable compensation. If any party having invoked these dispute settlement procedures and the Member whose measure has been found to be inconsistent agree on acceptable compensation but such compensation is not available to third parties to a dispute, the Member whose measure has been found to be inconsistent shall, on request, agree to expedited arbitration under Article 25 to determine the right of a third party to 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 procedures may request authorization from the DSB to suspend the application to the Member concerned of concessions or other obligations under the covered agreements.

6. When the situation described in paragraph 2 occurs, Tthe DSB, upon request by a party, where such request is permitted by paragraph 2, shall grant authorization to suspend concessions or other obligations within 30 days of the expiry of the reasonable period of time unless the DSB decides by consensus to reject the request. [...]

Amend paragraph 7: The arbitrator 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 arbitration 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 unless the concessions or other obligations suspended have been varied. The DSB shall be informed promptly of the decision of the arbitrator and shall upon request, grant authorization to suspend concessions or other obligations where the request is consistent with the decision of the arbitrator, unless the DSB decides by consensus to reject the request. A member shall not vary the concessions or other obligations once the arbitrator has determined under paragraph 6 that they are equivalent to the level of nullification or impairment, unless the variation is to correct a technical error or the concessions or other obligations are made inutile by subsequent developments. Where a member varies the concessions or other obligations, the other member retains the right to seek arbitration under Article 22.6.

New paragraph 3bis: Notwithstanding the principles and procedures contained in paragraph 3, in a dispute in which the complaining party is a developing-country Member and the other party, which has failed to bring its measures into consistence with the Covered Agreements is a developed-country Member, the complainant shall have the right to seek authorization for suspension of concessions or other obligations with respect to any or all sectors under any covered agreements.

Amend paragraph 1: Compensation and the suspension of concessions or other obligations 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 consistent with the covered agreements.

At any point of time before the submission of the request for authorization for suspension of concessions or other obligations referred to in paragraph 2 of this Article, the parties may agree to request an arbitration to determine the level of nullification or impairment caused by the measure found to be inconsistent with a covered agreement.

Such arbitration shall be carried out by the original panel, if members are available. The Director General shall determine whether the members of the original panel are available. If any members of the original panel are not available, and the parties to the arbitration do not agree on a replacement, at the request of any party the Director General shall appoint a replacement arbitrator (footnote) from the roster of panelists provided for in Article 8 within 5 days after the matter is referred to the arbitration, after consulting with the parties to the arbitration.

The arbitration shall be completed and the decision of the arbitrator shall be circulated to Members within 45 days after the date of the request. The award of the arbitrator shall be final, and parties shall accept it as the level of nullification and impairment for purposes of future proceedings under paragraph 6 of this Article related to that measure.
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(footnote) The expression "arbitrator" shall be interpreted as referring either to an individual or a group.

Replace paragraph 2: If:

(i) the Member concerned does not inform the DSB pursuant to paragraph 3 of Article 21 that it intends to implement the recommendations or rulings of the DSB;

(ii) the Member concerned does not submit within the required time period a notification pursuant to paragraph 6(c) of Article 21 stating that the Member concerned has complied; or

(iii) the compliance panel or the Appellate Body report pursuant to Article 21bis finds that the Member concerned has failed to bring the measures found to be inconsistent with a covered agreement into compliance therewith or otherwise comply with the recommendations or rulings of the DSB;

(iv) the compliance panel or the Appellate Body report pursuant to Article 21bis finds that the Member concerned has acted inconsistently with a covered agreement by not complying comply with those terms and conditions of a mutually agreed solution notified under Article 3.6 that are subject to the disciplines of a covered agreement; then

such Member shall, if so requested by the complaining party, enter into consultations with a view to agree on a mutually acceptable trade compensation.

Within 30 days from the request, the Member concerned shall submit to the other Member a proposal for mutually acceptable trade compensation. When an arbitration referred to in paragraph 1 has taken place, such proposal shall be consistent with the award of the arbitrator.

If no proposal for compensation has been submitted within the time period referred to in the previous sub-paragraph or if no agreement has been reached within 30 days from the submission of the proposal for a mutually acceptable compensation, the complaining Party shall be entitled to request authorization from the DSB to suspend the application to the Member concerned of concessions or other obligations under the covered agreements. A meeting of the DSB shall be convened for this purpose 10 days after the request, unless the complaining party requests that the meeting be held at a later date (footnote). The parties to the dispute are encouraged to consult before the meeting to discuss a mutually satisfactory solution.
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(footnote) In the case of paragraph 2 (ii) above, such DSB meeting shall not be convened before the expiry of the reasonable period of time.

EU TN/DS/W/1

African Group

Replace paragraph 6: When the situation described in paragraph 2 occurs, the DSB, upon request, shall grant authorization to suspend concessions or other obligations within 30 days of the expiry of the reasonable period of time unless the DSB decides by consensus to reject the request. (a) When the complaining party has made a request for authorization to suspend concessions or other obligations pursuant to paragraph 2 of this Article, the DSB shall grant authorization to such request at the meeting requested by the complaining party unless the DSB decides by consensus to reject the request. However, if the Member concerned objects to the level of suspension proposed, or claims that the principles and procedures set forth in paragraph 3 have not been followed where the 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.

(b) Such arbitration shall be carried out by the original panel, if members are available, or by an arbitrator(15) appointed by the Director-General and Such arbitration shall be carried out by the original panel, if its members are available. The Director General shall determine whether the members of the original panel are available (new footnote 1). If any members of the original panel are not available, and the parties to the arbitration do not agree on a replacement, at the request of any party the Director General shall appoint a replacement arbitrator(new footnote 2) from the roster of panelists provided for in Article 8 within 5 days after the matter is referred to the arbitration, after consulting with the parties to the arbitration.

(c) 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. The arbitration shall be completed and the decision of the arbitrator shall be circulated to Members within 45 days after the referral of the matter, except when an arbitration procedure under paragraph 1 of this Article has taken place, in which case the report shall be circulated within 30 days. The complaining party shall not suspend concessions or other obligations during the course of the arbitration.
_____________
(15) The expression "arbitrator" shall be interpreted as referring either to an individual or a group.
(new footnote 1) The expression "arbitrator" shall be interpreted as referring either to an individual or a group.
(new footnote 2) In order to avoid delay, the Director-General shall make this determination sufficiently in advance of the DSB meeting at which the matter is to be referred to arbitration.

Amend Article 22.6 by renaming the current provision as paragraph (a) and adding the following paragraphs (b) and (c):

(b)  Where it is demonstrated that the suspension of concessions or other obligations would have negative consequences on the economy of a Member that is developing or least-developed country, the DSB may, upon request, authorise a Member or a group of Members to suspend concessions on behalf of the affected Member. The following principles and procedures shall apply to such requests:

              (i)  Before making such a request, the developing or least-developed country Member shall refer the matter to arbitration for determination of the level of nullification and impairment, which shall be done taking into account the legitimate expectations of the developing or least-developed country Member.  The arbitration shall further take into account the effects of the suspension of concessions upon the economy of the developing country.

              (ii)  The arbitration shall consider whether the suspension of concessions or other obligations in other sectors by the developing or least-developed country Member would be appropriate to effectively encourage the withdrawal of the measure found to be inconsistent with a covered Agreement, taking into account possible effects on that developing or least-developed country Member.

              (iii)  Where the DSB grants authorisation to a Member or a group of Members to suspend concessions or other obligations under paragraph 7, the level of suspension for each Member authorized shall be limited to securing full compensation for the injury to the developing or least-developed country Member concerned, the protection of its development interests, and the timely and effective implementation of the recommendations and rulings.

Replace paragraph 8: The suspension of concessions or other obligations shall be temporary 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. Products which were en route on or before the date of application of the suspension of concessions or other obligations shall be exempted from the application of the domestic measure implementing such suspension. [...]

New paragraph 8bis: (a) After the DSB has authorized the suspension of concessions or other obligations pursuant to paragraph 6 or 7 of this Article, the Member concerned may request a termination of such authorization on the grounds that it has eliminated the inconsistency or the nullification or impairment of benefits under the covered agreements identified in the recommendations or rulings of the DSB. The Member concerned shall include with any such request a written notice to the DSB describing in detail the measures it has taken, providing the text of the relevant measures, and requesting a meeting of the DSB.

The DSB shall meet 20 days after such a request unless the Member concerned requests that the meeting be held at a later date. At such meeting the DSB shall withdraw the authorization for suspension of concessions and other obligations unless the DSB decides by consensus not to withdraw the authorization, or unless the complaining party objects to such withdrawal, in which case subparagraph (b) shall apply.

(b) Where there is disagreement between a complaining party and the Member concerned as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations or rulings of the DSB in the dispute, such disagreement shall be resolved through recourse to the dispute settlement procedures provided for in Article 21bis. If as a result of recourse to the dispute settlement procedures provided for in Article 21bis, the measures taken to comply by the Member concerned are found not to be inconsistent with a covered agreement and comply with the recommendations or rulings of the DSB in the dispute, then on or after the date of circulation of the report of the Compliance Panel or the Appellate Body, the Member concerned may request a meeting of the DSB to withdraw the authorization for the suspension of concessions or other obligations. The DSB shall meet 10 days(footnote 1) after such a request unless the Member concerned requests that the meeting be held at a later date. At such meeting the DSB shall withdraw the authorization for suspension of concessions and other obligations unless the DSB decides by consensus not to do so.(footnote 2)

(c) The complaining party shall not maintain the suspension of concessions and other obligations after the DSB withdraws the authorization.

(d) When the situation referred to in sub-paragraph (b) occurs, if the measures taken to comply by the Member concerned are found not to be consistent with a covered agreement or not to comply with the recommendations or rulings of the DSB in the dispute, any party may request an arbitration to determine the level of nullification or impairment caused by the measures concerned.

Such arbitration shall be carried out by the original panel, if members are available. The Director General shall determine whether the members of the original panel are available. If any members of the original panel are not available, and the parties to the arbitration do not agree on a replacement, at the request of any party the Director General shall appoint a replacement arbitrator(footnote 3) from the roster of panelists provided for in Article 8 within 5 days after the matter is referred to the arbitration, after consulting with the parties to the arbitration.

The arbitration shall be completed and the decision of the arbitrator shall be circulated to Members within 45 days after the date of the request. The award of the arbitrator shall be final. If the level of nullification and impairment determined by the arbitrator under this paragraph differs from the level determined under paragraph 6 of this Article, the Member concerned may request a meeting of the DSB to modify the authorization for the suspension of concessions or other obligations. The DSB shall meet 10 days after such a request unless the Member concerned requests that the meeting be held at a later date. At such meeting the DSB shall accordingly modify the authorization for suspension of concessions and other obligations unless the DSB decides by consensus not to do so.

The complaining party shall bring the suspension of concessions and other obligations into conformity with the authorization of the DSB.
____________
(footnote 1) In the case of an appeal, the DSB shall meet for this purpose on or after the date of the adoption of the Appellate Body report pursuant to Article 17.14.
(footnote 2) The DSB shall not consider the request for the withdrawal of the authorization for the suspension of concessions until after it has adopted the report of the compliance Panel or the Appellate Body.
(footnote 3) The expression "arbitrator" shall be interpreted as referring either to an individual or a group.

Amend paragraph 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 procedures may request authorization from the DSB to suspend the application to the Member concerned of concessions or other obligations under the covered agreements.

Furthermore, WTO Members should clarify the "provision to the effect that compensation should not take the form of enhanced market access if this will prejudice other Members and that monetary compensation is to be preferred. Such monetary compensation should be equal to the loss or injury suffered and directly arising from the offending measure or foreseeable under the offending measure. The quantification of loss or injury to be compensated should always commence from the date the Member in breach adopted the offending measure."

Add to paragraph 6: (b) The following principles and procedures shall apply to requests for collective suspension of concessions under paragraph (c):

(i) Before making such a request, the developing or least-developed country Member shall refer the matter to arbitration for determination of the level of nullification and impairment, which shall be done taking into account the legitimate expectations of the developing or least-developed country Member. The arbitration shall further take into account any impediment to the attainment of the development objectives of the WTO Agreement as further elaborated by the developing or least-developed country Member.

(ii) The arbitration shall consider whether suspension of concessions or other obligations in other sectors by the developing or least-developed country Member would be appropriate to effectively encourage the withdrawal of the measure found to be inconsistent with a covered Agreement, taking into account possible effects on that developing or least-developed country Member.

(iii) Where the DSB grants authorisation to Members to suspend concessions or other obligations under paragraph (c), the level of suspension for each Member authorized shall be such as to secure, full compensation for the injury to the developing or least-developed country Member, the protection of its development interests, and the timely and effective implementation of the recommendations and rulings.

(c) Where the case is one brought by a developing or least-developed country Member against a developed-country Member and the situation described in paragraph 2 occurs, and in order to promote the timely and effective implementation of recommendations and rulings, the DSB, upon request, shall grant authorization to the developing or least-developed country Member and any other Members to suspend concessions or other obligations within 30 days.

(d) The DSB shall review the operation of paragraph 6 of this Article not later than five years after its implementation with a view to ensuring its effectiveness and in this regard may adopt appropriate measures and amendments to this Understanding.

Amend paragraph 2: If: (i) the Member concerned does not inform the DSB pursuant to paragraph 3 of Article 21 that it intends to implement the recommendations or rulings of the DSB;

(ii) the Member concerned does not submit within the required time-period a notification pursuant to paragraph 6(c) of Article 21 stating that the Member concerned has complied; or

(iii) the Compliance Panel or the Appellate Body report pursuant to Article 21bis finds that the Member concerned has failed to bring the measures found to be inconsistent with a covered agreement into compliance therewith or otherwise comply with the recommendations or rulings of the DSB;

such Member shall, if so requested by the complaining party, enter into consultations with a view to agree on a mutually acceptable compensation.

Within 30 days from the request, the Member concerned shall submit to the other Member a proposal for mutually acceptable compensation. Such compensation may be partly or entirely monetary. When an arbitration referred to in Article 21.3 bis has taken place, such proposal shall be consistent with the award of the arbitrator. If the parties reach a compensation agreement, they shall so inform the DSB. If no proposal for compensation has been submitted within the time-period referred to in the previous subparagraph or if no agreement has been reached within 30 days from the submission of the proposal for a mutually acceptable compensation, the complaining Party shall be entitled to request authorization from the DSB to suspend the application to the Member concerned of concessions or other obligations under the covered agreements equivalent to the level of nullification and impairment . A meeting of the DSB shall be convened for this purpose 10 days after the request, unless the complaining party requests that the meeting be held at a later date.

If the complaining party is a developing country and the Member concerned is a developed country, during the consultations held between the parties to the dispute with a view to reaching a compensation agreement they shall bear in mind the provisions of Article 21.8. If, in the above situation, no compensation agreement is reached and the complaining party asks the DSB for authorization to suspend the application to the Member concerned of concessions or other obligations under the covered agreements, the DSB shall authorize such suspension, taking account of the level of nullification or impairment indicated by the complaining party or established by the arbitration under Article 21.3 bis concerning trade affected by the challenged measures, including, in addition, the level of impact of the said measures on the economy of the developing country in question as estimated by the arbitrator.

Add to the end of paragraph 1: If, assessing the detailed status report provided under paragraph 6(b) of Article 21, the complaining party considers that the Member concerned is unable to implement the recommendations and rulings within the reasonable period of time, the complaining party may request negotiations with the Member concerned, with a view to developing mutually acceptable compensation. The Member concerned shall, if so requested, enter into negotiations with the complaining party within 20 days from the date of the request, unless it declares its confidence in full compliance within the reasonable period of time. At any point of time before the submission of the request for authorization for suspension of concessions or other obligations referred to in paragraph 2 of this Article, the parties may agree to request an arbitration to determine the level of nullification or impairment caused by the measure found to be inconsistent with a covered agreement.

Such arbitration shall be carried out by the original panel, if members are available. The Director?General shall determine whether the members of the original panel are available. If any members of the original panel are not available, and the parties to the arbitration do not agree on a replacement, at the request of any party the Director?General shall appoint a replacement arbitrator from the roster of panelists provided for in Article 8 within 5 days after the matter is referred to the arbitration, after consulting with the parties to the arbitration.

The arbitration shall be completed and the decision of the arbitrator shall be circulated to Members within 45 days after the date of the request. The award of the arbitrator shall be final, and parties shall accept it as the level of nullification and impairment for purposes of future proceedings under paragraph 6 of this Article related to that measure.

Amend paragraph 2: If: (i) the Member concerned does not inform the DSB pursuant to paragraph 3 of Article 21 that it intends to implement the recommendations or rulings of the DSB;

(ii) the Member concerned does not submit within the required time period a notification pursuant to paragraph 6(c) of Article 21 stating that the Member concerned has complied; or

(iii) the Compliance Panel or the Appellate Body report pursuant to Article 21bis finds that the Member concerned has failed to bring the measures found to be inconsistent with a covered agreement into compliance therewith or otherwise comply with the recommendations or rulings of the DSB;

then a complaining party may request authorization from the DSB to suspend the application to the Member concerned of concessions or other obligations under the covered agreements. A meeting of the DSB shall be convened for this purpose 10 days after the request, unless the complaining party requests that the meeting be held at a later date. The parties to the dispute are encouraged to consult before the meeting to discuss a mutually satisfactory solution.

Amend paragraph 6: (a) When the complaining party has made a request for authorization to suspend concessions or other obligations pursuant to paragraph 2 of this Article, the DSB shall grant authorization to such request at the meeting requested by the complaining party unless the DSB decides by consensus to reject the request. However, if the Member concerned objects to the level of suspension proposed, or claims that the principles and procedures set forth in paragraph 3 have not been followed where the 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.

(b) Such arbitration shall be carried out by the original panel, if its members are available. The Director?General shall determine whether the members of the original panel are available. If any members of the original panel are not available, and the parties to the arbitration do not agree on a replacement, at the request of any party the Director?General shall appoint a replacement arbitrator within 5 days after the matter is referred to the arbitration, after consulting with the parties to the arbitration.

(c) The arbitration shall be completed and the decision of the arbitrator shall be circulated to Members within 45 days after the referral of the matter, except when an arbitration procedure under paragraph 1 of this Article has taken place, in which case the report shall be circulated within 30 days. The complaining party shall not suspend concessions or other obligations during the course of the arbitration.

New paragraph after 8 (renumber paragraph 9 as paragraph 10):

9. (a) After the DSB has authorized the suspension of concessions or other obligations pursuant to paragraph 6 or 7 of this Article, the Member concerned may request a termination of such authorization on the grounds that it has eliminated the inconsistency or the nullification or impairment of benefits under the covered agreements identified in the recommendations or rulings of the DSB. The Member concerned shall include with any such request a written notice to the DSB describing in detail the measures it has taken, providing the text of the relevant measures, and requesting a meeting of the DSB. The DSB shall meet 20 days after such a request unless the Member concerned requests that the meeting be held at a later date. At such meeting the DSB shall withdraw the authorization for suspension of concessions and other obligations unless the DSB decides by consensus not to withdraw the authorization, or unless the complaining party objects to such withdrawal, in which case subparagraph (b) shall apply.

(b) Where there is disagreement between a complaining party and the Member concerned as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations or rulings of the DSB in the dispute, such disagreement shall be resolved through recourse to the dispute settlement procedures provided for in Article 21bis. If as a result of recourse to the dispute settlement procedures provided for in Article 21bis, the measures taken to comply by the Member concerned are found not to be inconsistent with a covered agreement and comply with the recommendations or rulings of the DSB in the dispute, then on or after the date of circulation of the report of the Compliance Panel or the Appellate Body, the Member concerned may request a meeting of the DSB to withdraw the authorization for the suspension of concessions or other obligations. The DSB shall meet 10 days after such a request unless the Member concerned requests that the meeting be held at a later date. At such meeting the DSB shall withdraw the authorization for suspension of concessions and other obligations unless the DSB decides by consensus not to do so.

(c) The complaining party shall not maintain the suspension of concessions and other obligations after the DSB withdraws the authorization.

Add new paragraphs 6(b) and 6(c): (b) Where the case is one brought by a least-developed country Member against a developed-country Member and the situation described in paragraph 2 occurs, and in order to promote the timely and effective implementation of recommendations and rulings made in favour of least developed country Members, the DSB, upon request, shall grant authorization to all Members to suspend concessions or other obligations within 30 days unless the DSB decides by consensus to reject the request. The following principles and procedures shall apply to such a request.

(i) Before making such a request, the least-developed country Member shall refer the matter to arbitration for determination of the level of nullification and impairment, which shall be done taking into account the legitimate expectations of the least-developed country Member. The arbitration shall further take into account any impediment TO the attainment of the development objectives of the WTO Agreement and as further elaborated upon by the least-developed country Member concerned.

(ii) The arbitration shall consider whether suspension of concessions or other obligations in other sectors by the least-developed country Member would be appropriate to effectively encourage the withdrawal of the measure found to be inconsistent with a covered Agreement, taking into account possible adverse effects on that least developed country Member.

(iii) Where the DSB grants authorization to all Members to suspend concessions or other obligations, the level of suspension for each Member shall be an appropriate percentage of the nullification and impairment determined under arbitration. In a case brought by a least-developed country Member, the level of suspension for each Member shall be the level determined under arbitration to have been suffered by the least-developed country Member.

(c) The DSB shall review the operation of paragraph (b) after a period of five years.

Philippines and Thailand TN/DS/W/3

(b) To determine whether the level of suspension proposed under Article 22.6 is equivalent to the level of nullification or impairment, the arbitrator shall first determine the level of the nullification or impairment of the benefits accruing to the complaining party under the WTO Agreement in accordance with the recommendations and rulings of the DSB. The complaining party shall provide sufficient trade information and data to enable the arbitrator to determine such level.

(c) Consistent with the level of nullification or impairment determined pursuant to subparagraph (b) and with due respect to paragraph 3 of Article 22, the complaining party shall submit to the arbitrator a detailed proposal containing a list of the concessions or other obligations it intends to suspend. The arbitrator shall determine whether the level of suspension resulting from the list of concessions or other obligations contained in the proposal is equivalent to the level of nullification or impairment determined pursuant to subparagraph (b). In the event the arbitrator considers that the level of suspension is not equivalent to the level of nullification or impairment, the complaining party shall modify the list of concessions or other obligations until the arbitrator determines that the level of suspension resulting therefrom is equivalent to the level of nullification or impairment determined pursuant to subparagraph (b).

(d) The DSB shall be informed promptly of the decision of the arbitrator. The parties shall accept such decision as final and shall not seek a second arbitration.

(e) Consistent with the decision of the arbitrator and with due respect to paragraph 3 of Article 22, the complaining party shall submit a request to the DSB for an authorization to suspend concessions or other obligations. The DSB shall grant authorization to suspend concessions or other obligations where the request is consistent with the determinations made by the arbitrator pursuant to subparagraphs (b) and (c), unless the DSB decides by consensus to reject the request.

(f) The complaining party shall not suspend concessions or other obligations other than those contained in the list of concessions or other obligations on the basis of which the arbitrator has determined pursuant to subparagraph (c) that the level of suspension is equivalent to the level of nullification or impairment. Such a list shall not be modified except by mutual agreement between the complaining party and the Member concerned or pursuant to subparagraph (g).

(g) Anytime after authorization by the DSB, the complaining party may submit a request to the arbitrator for an adjustment, for technical purposes, of the list of concessions or other obligations on the basis of which the arbitrator has determined pursuant to subparagraph (c) that the level of suspension is equivalent to the level of nullification or impairment. Such requests shall be accompanied by a detailed proposal containing an adjusted list of concessions or other obligations. The arbitrator shall determine whether the level of suspension resulting from such a list is equivalent to the level of nullification or impairment determined pursuant to subparagraph (b). In the event the arbitrator considers that the level of suspension is not equivalent to the level of nullification or impairment the complaining party shall modify the adjusted list of concessions or other obligations until the arbitrator determines that the level of suspension resulting therefrom is equivalent to the level of nullification or impairment determined pursuant to subparagraph (b). The DSB shall be informed promptly of the decision of the arbitrator and the parties shall accept such decision as final. Consistent with the decision of the arbitrator and with due respect to paragraph 3 of Article 22, the complaining party shall submit a request to the DSB for an authorization to adjust the list of concessions or other obligations for technical purposes. The DSB shall grant authorization to adjust the list of concessions or other obligations for technical purposes where the request is consistent with the determinations made by the arbitrator pursuant to subparagraph (b) and this subparagraph, unless the DSB decides by consensus to reject the request. After authorization by the DSB, the complaining party shall not suspend concessions or other obligations other than those contained in the list of concessions or other obligations on the basis of which the arbitrator has determined pursuant to this subparagraph that the level of suspension is equivalent to the level of nullification or impairment.

(h) In its determination pursuant to subparagraphs (c) and (g), the arbitrator shall take due account of any time-period necessary for trade in the affected sectors to adjust itself prior to and during the suspension of concessions or other obligations, and to regain its normal course thereafter.
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(footnote) 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.

Mexico

TN/DS/W/91

Amend Article 22 in the following manner:

1.           Compensation and the suspension of concessions or other obligations are temporary measures available in the event that the recommendations and rulings are not implemented immediately in the case of compensation or 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 consistent with the covered agreements. Compensation to developing country Members will be monetary unless otherwise agreed (note 1).

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 immediately within the reasonable period of time determined pursuant to paragraph 3 of Article 21, such Member shall, if a complaining party so requests ed, and no later than the expiry of the reasonable period of time, enter into negotiations with [any party having invoked the dispute settlement procedures] [a complaining party], 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 procedures may request authorization from the DSB to suspend the application to the Member concerned of concessions or other obligations under the covered agreements.

(…)

7.           The arbitrator 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, and if no compensation has been granted or has not been granted as agreed, the arbitrator shall, if so requested, additionally determine the level of nullification or impairment suffered during the reasonable period of time. 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 arbitration 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(note 2). The DSB shall be informed promptly of the decision of the arbitrator and shall upon request, grant authorization to suspend concessions 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 temporary 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. However, in  those cases where the level of nullification or impairment includes the level of suspension or impairment suffered during the reasonable period of time as described in paragraph 7, the suspension of concessions or other obligations may remain in force thereafter until such time at which the effect of suspension is equivalent to the level of nullification or impairment suffered during the reasonable period of time. 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 other obligations have been suspended but the recommendations to bring a measure into conformity with the covered agreements have not been implemented. In such cases, Members which have been granted the right to suspend concessions or other obligations shall notify the DSB and the relevant WTO bodies of all the measures taken as suspension of concessions or other obligations within three months after the DSB has granted such authorization and thereafter every six months, until such time as the suspension ceases to be applied.             [Footnote omitted]

Note 1:  This is without prejudice of the possibility for developed Members to obtain monetary compensation, if so agreed.

Note 2:  However if the level of nullification or impairment changes after it is set, in order to conform to this change, any party may request the DSB to modify its authorization or a new arbitration may be sought. Such an arbitration may not be sought more frequently than [annually].

New Article 22bis:

Article 22bis
Examination of mutually agreed solutions

1. Where there is disagreement between the complaining party and the Member concerned as to whether the latter has acted inconsistently with a covered agreement by not complying with the terms and conditions of a mutually agreed solution notified under Article 3.6 that are subject to the disciplines of a covered agreement, such disagreement shall be resolved through recourse to the dispute settlement procedures provided for in Article 21bis.

2. If the compliance panel or the Appellate Body report pursuant to Article 21bis finds that the Member concerned has acted inconsistently with a covered agreement by not complying with the terms and conditions of a mutually agreed solution notified under Article 3.6 that are subject to the disciplines of a covered agreement, the complaining party may request under Article 22 authorization from the DSB to suspend the application to the Member concerned of concessions or other obligations under the covered agreements

China
TN/DS/W/51

further information on the proposal provided in TN/DS/W/57

Special and Differential Treatment to Developing Countries

1. Developed-country Members shall exercise due restraint in cases against developing-country Members. Developed-country Members shall not bring more than two cases to the WTO Dispute Settlement Body against a particular developing-country Member in one calendar year.

2. Where a developed-country Member brings a case against a developing-country Member, if the final rulings of a panel or the Appellate Body show that the developing-country Member does not violate its obligations under the WTO Agreements, the legal costs of the developing-country Member shall be borne by the developed-country Member initiating the dispute settlement proceedings.

Amend paragraph 4: Articles 21, 21bis and 22 of this Understanding shall apply mutatis mutandis to arbitration awards.

Kenya
TN/DS/W/42

African Group

New Article: Article 28 WTO Fund on Dispute Settlement

1. There shall be a fund on dispute settlement to facilitate the effective utilization by developing and least-developed country Members of this Understanding in the settlement of disputes arising from the covered agreements.

2. The fund established under paragraph 1 of this Article shall be financed from the regular WTO budget. However, to ensure its adequacy, the fund may additionally be funded from extra-budgetary sources, which may include voluntary contributions from Members.

3. The General Council shall annually review the adequacy and utilization of the fund with a view to improving its effectiveness and in this regard may adopt appropriate measures and amendments to this Understanding.

New Article 28

WTO Fund on Dispute Settlement

1.  There shall be established a fund on dispute settlement to facilitate the effective utilisation by developing and least-developed country Members of this Understanding in the settlement of disputes arising from the covered agreements.

2.  The fund established under paragraph 1 of this Article shall be financed from the regular WTO budget.  To ensure its adequacy, the fund may additionally be funded from extra-budgetary sources, which may include voluntary contributions from Members.

3.  Disbursements under the fund shall be made in accordance with criteria to be adopted by the DSB and communicated to Members.

US TN/DS/W/86

Delete paragraph 2.

Delete paragraph 3 and renumber the subsequent paragraphs accordingly.

China TN/DS/W/51/Rev.1

replaces
TN/DS/W/51

Amend paragraph 6: All third parties which have notified their interest in the dispute to the DSB shall be invited in writing to be present at all substantive meetings of the panel. The third parties shall be invited by the panel to present their views and may response to the questions raised by the panel and parties to the dispute during the first substantive meeting. 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.

China TN/DS/W/51/Rev.1

replaces TN/DS/W/51

Amend paragraph 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. The third party shall have the right to observe the meeting without entitlement of taking the floor at the second substantive meeting of the panel.

Canada
TN/DS/W/49

China TN/DS/W/51/Rev.1

replaces
TN/DS/W/51

Amend paragraph 12:
Proposed timetable for panel work:

(a) Receipt of first written submissions of the parties:

(1) complaining Party: _______ within five days of the composition of the panel 3-6 weeks

(2) Party complained against: _______ 2-3 weeks

[...]

Amend paragraph 12:

Proposed timetable for panel work:

(a) Receipt of first written submissions of the parties:

(1) Complaining Party: ____ 3-6 weeks 3-4 weeks

(2) Party complained against: ____ 2-3 weeks 4-5 weeks

For developing-country Members to a dispute, the following time-frame shall apply:

(1) Complaining Party: ____ 4-6 weeks

(2) Party complained against: ____ 6-7 weeks

[...]

Amend paragraph 12: Proposed timetable for panel work:

[...]

(b) Date, time and place of first substantive meeting with the parties and third parties: third party session: ______ 1-2 weeks

[...]

(d) Date, time and place of second substantive meeting with the parties and third parties: ______ 1-2 weeks

(e) Issuance of descriptive part of the report to the parties and third parties: ______ 2-4 weeks

(f) Receipt of comments by the parties and third parties on the descriptive part of the report: ______ 2 weeks

[...]

(i) Period of review by panel, including possible additional meeting with parties and third parties: ______ 2 weeks

(j) Issuance of final report to parties to dispute and third parties: ______ 2 weeks

Cuba, Honduras, India, Malaysia, Pakistan, Sri Lanka, Tanzania and Zimbabwe TN/DS/W/18, Jamaica TN/DS/W/18/Add.1

Amend paragraph 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 comments 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. Any document, notes, information, etc., submitted by the Secretariat to the panel shall be given promptly to the parties to the dispute, whose views on such documents, notes, information, etc., shall be taken into consideration by the panel.

Amend paragraph 3: a. The deliberations of the panel and the documents submitted to it shall be kept confidential. Nothing in the DSU shall preclude a party or third 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.

b. Each party and third party to a proceeding shall also, if requested by a Member, provide a non-confidential summary of the information contained in its submissions that could be disclosed to the public no later than 15 days after the date of the request, or such other deadline as agreed upon by both, the party and the requesting Member.

However, the parties may agree within 10 days from the date of establishment of the panel that the panel hearing shall be open to the public in whole or in part.

Amend paragraph 12 (including reduction of time frames in Article 20 and, 21.4, by one month): Proposed timetable for panel work:

(a) Receipt of first written submissions of the parties:

(1) complaining party: ____ 3-6 weeks 3-4 weeks (footnote)
(2) party complained against: ____ 2-3 weeks 4-5 weeks

[...]

(e) Issuance of descriptive part of the report to the parties: _______
2-4 weeks

(f) Receipt of comments by the parties on the descriptive part of the report: _______ 2 weeks

(g) Issuance of the interim report, including the findings and conclusions, to the parties: _______ 2-4 weeks 4-8 weeks

(h) Deadline for party to request review of part(s) of report: _______ 1 week 10 days

(i) Period of review by panel, including possible additional meeting with parties: _______ 2 weeks

(j) Issuance of final report to parties to dispute: _______ 2 weeks 10 days

(k) Circulation of the final report to the Members: _______ 3 weeks 3 days
____________
(footnote) Up to 6 weeks if the complaining party is a developing country Member.

Amend paragraph 12(a): (a) Receipt of first written submissions of the parties:

(1) complaining party: 3-4 weeks

(2) party complained against: 4-5 weeks

Amend paragraph 12: Proposed timetable for panel work

(b) Date, time and place of first substantive meeting with the parties and third parties:

(d) Date, time and place of second substantive meeting with the parties and third parties:

(e) Issuance of descriptive part of the report to the parties and third parties:

(f) Receipt of comments by the parties and third parties on the descriptive part of the report:

(g) Issuance of the interim report, including the findings and conclusions, to the parties and third parties:

(h) Period of review by panel, including possible additional meeting with parties and third parties:

(g) Issuance of final report to parties to dispute and third parties:

PROCEDURES GOVERNING BUSINESS CONFIDENTIAL INFORMATION

I. SCOPE

1. These procedures apply to all business confidential information submitted during the Panel process, but do not apply to a party with respect to business confidential information first submitted by that party.

II. OBLIGATION ON PARTIES

1. Each party shall ensure that its representatives comply with these procedures.

2. The treatment of information as business confidential under these procedures imposes a substantial burden on the panel and the parties. The indiscriminate designation of information as business confidential could limit the ability of a party to fully include in its litigation team individuals who have particular knowledge and expertise relevant to presenting the party’s case, impede the work of the panel and complicate the panel’s task in formulating credible public findings and conclusions. Accordingly, each party shall act in good faith and exercise the utmost restraint in designating information as business confidential.

III. SUBMISSION BY A PARTY

1. When submitting information, a party may designate all or any part or parts of that information as business confidential information.

2. Where a submission by a party incorporates business confidential information first submitted by another party, the submission shall identify that information as business confidential.

3. A party submitting an exhibit containing business confidential information shall submit one copy of the exhibit to the Secretariat, and two copies of the exhibit to each other party.

4. If, taking into the account the obligation on parties, the panel considers that a party has designated as business confidential information that is not reasonably entitled to such treatment, the panel may ask the party to justify the designation. If, in the opinion of the panel, the party fails to justify the designation, the panel may decline to consider that information. In such a case, the party submitting the information may, at its discretion:

(i) withdraw the information, in which case the panel and the other parties shall promptly return any document or other recording containing the information to the party submitting it; or

(ii) withdraw the designation of the information as business confidential.

5. A party submitting a text document containing business confidential information shall also provide, within two business days of that submission:

(i) an edited version of the document, redacted in such a manner as to convey a reasonable understanding of the substance of the business confidential information; or

(ii) in exceptional circumstances, a written statement that:

(a) an edited version cannot be made, or (b) an edited version would disclose facts that the party has a proper reason for wishing to keep confidential.

6. If the panel considers that an edited version does not fulfill the requirements of paragraph 5(i) or that exceptional circumstances do not exist to justify a statement pursuant to paragraph 5(ii), the panel may decline to consider the business confidential information in question. In such a case, the party submitting the information may, at its discretion:

(i) withdraw the information, in which case the Secretariat and the other parties shall promptly return the document containing the information to the party submitting it; or

(ii) comply with the provisions of paragraph 5 to the satisfaction of the panel.

IV. STORAGE

1. The Secretariat shall store all documents or other recordings containing business confidential information in a secure location when not in use by an approved person.

2. Each party shall store all documents or other recordings containing business confidential information submitted to it by another party in a locked storage receptacle, to which only approved persons have access, when not in use by an approved person.

3. An approved person shall take all necessary precautions to safeguard business confidential information when documents or other recordings containing the information are in use or being stored.

V. DISCLOSURE

1. Only approved persons may view or hear business confidential information that has been submitted pursuant to these procedures. No approved person who views or hears business confidential information shall disclose it, or allow it to be disclosed, to any person other than another approved person, except in accordance with these procedures.

2. Approved persons who view or hear business confidential information shall use that information only for the purposes of the panel proceedings and for no other purposes.

3. The panel shall not disclose business confidential information in its report, but may make statements of conclusion drawn from that information.

4. In the event that a party submitting business confidential information objects to any person being designated an approved person, the panel shall decide on the objection as a preliminary matter. If the panel allows the designation, the information may not be disclosed to the approved person until the party submitting the information has a reasonable opportunity to:

(i) withdraw the information, in which case the panel and the other parties shall promptly return any document or other recording containing the information to the party submitting it; or

(ii) withdraw the designation of the information as business confidential.

5. An approved person viewing or hearing business confidential information may take written summary notes of that information for the sole purpose of the panel process. Those notes are subject to the requirements of Articles IV and VII.

6. Documents or other recordings containing business confidential information shall not be copied, distributed or removed from a locked storage receptacle, except as specifically provided in these procedures.

7. A party may bring with it to a panel meeting, for the sole purpose of that meeting, the documents or other recordings containing business confidential information that it has received from another party under these procedures, and shall immediately thereafter return those documents or other recordings to their locked storage receptacle.

8. A panel member may make and remove from the secure location a copy of any document or other recording containing business confidential information. The copy shall be used exclusively by that panel member for the purpose of the dispute, and shall be returned to the Secretariat upon conclusion of the panel. The copy shall be stored in a locked receptacle and subject to the obligation to safeguard provided in Article IV.3.

VI. DISCLOSURE AT A PANEL MEETING

1. A party that wishes to submit business confidential information during a panel meeting shall so inform the panel prior to doing so. The panel shall exclude persons who are not approved persons from the meeting for the duration of the submission of that information.

VII. RETURN OR DESTRUCTION

1. After the conclusion of the panel process, within a period fixed by the panel, the Secretariat and the parties shall return any documents or other recordings containing business confidential information, or certify in writing to the parties that the documents or other recordings have been destroyed, unless the party that first submitted the business confidential information agrees otherwise.

2. If the report of the panel is appealed, the Secretariat shall transmit any documents or other recordings submitted to it by a party containing business confidential information, and any other recordings that contain business confidential information, to the Appellate Body as part of the record of the panel proceedings. The Secretariat shall transmit such documents or other recordings to the Appellate Body separately from the rest of the record.

X. ADDITIONAL OR ALTERNATIVE PROCEDURES

1. The panel may apply any additional procedures that it considers necessary to protect the confidentiality of business confidential information.

2. The panel may, at the request of or with the consent of the parties, modify or waive any part of these procedures.

XI. DEFINITIONS

"approved person" means:
(i) a panel member;
(ii) a representative of a party;
(iii) a Secretariat employee, or
(iv) an expert appointed by the panel who has filed with the Secretariat a Declaration of Non-disclosure.

“conclusion of the panel process” means when:
(i) pursuant to Article 16.4, the panel report is adopted by the DSB, or otherwise not adopted by consensus of the DSB;
(ii) pursuant to Articles 16.4 and 17.14, the panel report is adopted (with modification, if any) with the report of the Appellate Body; or
(iii) when the authority for establishment of the panel lapses pursuant to Article 12.12.

“business confidential information” means any proprietary or commercially sensitive information that is designated as business confidential by the party submitting the information, and that is not otherwise available in the public domain.

“Declaration of Non-disclosure” means a copy of the declaration set out in this Annex, signed and dated by the person making the declaration.

“designated as business confidential” means:
(i) for information recorded in printed documents, clearly marked where the information appears in the document with the notation ‘BUSINESS CONFIDENTIAL INFORMATION’ and with the name of the party that first submitted the information;
(ii) for information recorded in binary-encoded files or in any other medium, clearly marked with the notation ‘BUSINESS CONFIDENTIAL INFORMATION’ on a label on the recording medium, and, in the case of information recorded in binary-encoded files, clearly annotated where the information appears in the files with the notation ‘BUSINESS CONFIDENTIAL INFORMATION’, and with the name of the party that first submitted the information; and
(iii) for uttered information, declared by the speaker to be “Business Confidential Information” prior to the disclosure, and identified with the name of the party that first submitted the information.

“information” includes information recorded in any medium, including printed documents and binary-encoded files, and uttered information.

“other recordings” includes tapes and transcripts of panel meetings.

“panel meeting” means a substantive meeting of the panel with the parties or any interim review meeting of the panel with the parties, as described in the working procedures adopted by the panel.

“panel member” means a person serving on the panel.

“representative” means: (i) an employee of a party;
(ii) a legal counsel or other advisor or consultant of a party,
who has been authorized by a party to act on its behalf in the course of the dispute and whose authorization has been notified to the Secretariat and to the other parties, but in no circumstances may a representative be a person or an employee, officer or agent of any entity that could reasonably be expected to benefit commercially from the receipt of the business confidential information.

“Secretariat employee” means a person employed or appointed by the Secretariat who has been authorized by the Secretariat to work on the dispute, and includes translators and interpreters and transcribers present at the panel hearings.

“secure location” means a locked storage receptacle chosen by the Secretariat to provide secure storage for business confidential information.

“text document” includes written submissions to the panel, whether in printed or binary-encoded form.

THIRD PARTY PARTICIPATION IN CONSULTATION

1. Any Member having a substantial trade interest in consultations being held pursuant to paragraph 1 of Article XXII of GATT 1994, paragraph 1 of Article XXII of GATS, or the corresponding provisions in other covered agreements, shall be permitted to take part in the consultation as a third party after notifying the consulting Members and the DSB of its desire to be joined in the consultations as a third party within 10 days after the date of the circulation of the request for consultations.

2. A Member shall be considered as having a substantial trade interest if it has a principal supplying interest to one of the consulting Members or if the trade in dispute affects a major part of its total imports or exports.

3. A Member who has claimed a substantial trade interest shall be joined in the consultations as a third party unless the Member to which the request for consultations was addressed disagrees with the claim of substantial trade interest and provides the applicant Member and the DSB with reasons for the disagreement within 10 days after notification of the claim.

4. In the event that no response to the applicant Member’s claim was conveyed by the Member to which the request for consultations was addressed, the applicant Member shall be entitled to be joined in the consultations as a third party until a rejection of the claim was conveyed to the applicant Member and the DSB pursuant to the preceding paragraph.

5. If the request to be joined in the consultations as a third party 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.

"To address such excesses, there should be rules requiring that: the General Council shall be regularly briefed on and shall consider the jurisprudence developed in the DS; parties to proceedings shall have a right to refer questions of interpretation to the General Council at any stage of the proceedings before the authorization of suspension of concessions; and there shall be periodic reviews every five years to evaluate and improve through necessary amendments the manner that the DS promotes the development goals of the WTO."

Chile and the US
TN/DS/W/28

US TN/DS/W/74

US TN/DS/W/82

US TN/DS/W/82/Add.1

US TN/DS/W/82/Add 1/Corr.1.

US TN/DS/W/82/Add.2

"[P]anel and Appellate Body reasoning and findings should not go beyond those aspects of the dispute that the complainant and respondent parties consider necessary to resolve the dispute."

The submission continues by making several unformulated proposals:

"(a) making provision for interim reports at the Appellate Body stage, thus allowing parties to comment to strengthen the final report;

- strengthening reports would be especially useful at the appellate stage, since there is no opportunity for further appeals or argumentation;

[...]

(f) providing some form of additional guidance to WTO adjudicative bodies concerning (i) the nature and scope of the task presented to them (for example when the exercise of judicial economy is most useful) and (ii) rules of interpretation of the WTO agreements."

Improving Flexibility and Member Control

"It is proposed that there should be mechanisms that would enhance the parties’ flexibility to resolve the dispute and Members’ control over the adoption process.  Accordingly, panel and Appellate Body reasoning and findings should not go beyond those aspects of the dispute that the complainant and respondent parties consider necessary to resolve the dispute. 

Members may wish to consider ways they can provide additional guidance to adjudicative bodies, both in the context of the current negotiations and during individual disputes, including through procedures which strengthen Member control and flexibility.  At the same time, Members may wish to consider whether the current DSU provides sufficient assurance that the members of panels have the appropriate expertise to appreciate the issues presented.  In doing so, Members can also enhance their ability to resolve disputes at any time in the process." 

Limitations on the use of public international law

"Recognizing that international dispute settlement fora vary regarding the breadth of their adjudicatory authority, WTO dispute settlement under the DSU is focused on the adjudication of rights and obligations under specified agreements.  These "covered agreements" are listed in Appendix 1 of the DSU.   While other international law might properly play a role in WTO dispute settlement fora, it is not the function of WTO dispute settlement to adjudicate rights and obligations beyond those in the covered agreements."

Consideration of procedural approaches of other adjudicative bodies

"In addition, Members recognize that each WTO adjudicative body is tasked with managing its own proceedings, including developing its own working procedures.  It is natural that in managing its proceedings, a body may wish to consider how other adjudicative bodies have approached similar procedural issues, including other international adjudicative bodies as well as those in an individual Member.  Ultimately, however, such consideration is a question of the body exercising its discretion as to how to manage its proceedings; such consideration is not a question of interpreting a covered agreement in accordance with public international law."

Gap-filling

"In light of the nature of the covered agreements, there are at least two ways in which "gaps" in a covered agreement could be unacceptably filled, other than through negotiation.  First would be to read into the text of a covered agreement an obligation or right that is not present in the text, for example by extrapolating from a different provision.  Second would be to resolve ambiguity in the text of a covered agreement in a manner that  supplements or diminishes rights and obligations under the covered agreement." [...] "Neither type of "gap-filling" is an appropriate function for WTO adjudicative bodies." [...] "Where the application of the customary rules of treaty interpretation leaves the meaning of a provision ambiguous, e.g., there may be two plausible meanings, a WTO adjudicative body should not use that language as the basis for validating a claim or a defense where that validation would require foreclosing one of those meanings."

Measure under Review

“The Appellate Body has ... stated that "instruments of a Member containing rules or norms could constitute a ‘measure' for purposes of a dispute settlement challenge.  It may be useful for Members to provide greater clarity of when an "instrument" in fact is a "measure."  For example:  Under what circumstances is something an "instrument"?  For example, does it matter what legal status it may have under a Member's domestic legal system?  Under what circumstances does an instrument "contain rules or norms"?  Under what circumstances is an instrument a "measure"?”  

Order of analysis

Article 3.4 of the DSU provides that: "Recommendations and 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."  Accordingly, the purpose of the dispute settlement system is not to produce reports or to "make law," but rather to help Members resolve trade disputes among them.  WTO adjudicative bodies should avoid making findings that are not aimed at resolving the dispute.  It is useful to bear in mind that such bodies are not permitted to render authoritative interpretations of the covered agreements.  Article IX:2 of the Marrakesh Agreement Establishing the World Trade Organization  makes clear that the Ministerial Conference and the General Council "have the exclusive authority to adopt interpretations" of the covered agreements.

It is also useful to bear in mind that the "matter" that is referred to dispute settlement in the standard terms of reference under Article 7 of the DSU consists of the particular "measure" challenged together with the claims concerning that measure. (See, e.g., Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998, para. 72.)

The order of analysis followed by WTO adjudicative bodies should respect the function assigned to those bodies.  In particular, the order of analysis should respect the fact that findings need to relate to "measures affecting the operation of any covered agreement" taken by a Member. (Article 4.2 of the DSU.) 

For example, consider the situation where one party claims another Member’s measure does x, and that x is inconsistent with a provision of a covered agreement, but the responding Member claims that its measure does not do x.  In such a situation, it would not be appropriate for a WTO adjudicative body first to make findings on whether x is inconsistent with a provision of a covered agreement before making findings on whether the measure at issue actually does x.  Otherwise, in the event that the body finds that the measure does not do x, the body’s finding that x is inconsistent with a covered agreement is not aimed at a "measure[] affecting the operation of any covered agreement taken within the territory" of a Member.  (Article 4.2 of the DSU.)  Instead the finding is an advisory opinion divorced from the measure at issue (and therefore divorced from the actual "matter" referred to the body).

A further implication of the "measure affecting" language is that WTO dispute settlement is not concerned in a dispute with a measure of a Member that expired prior to the date of the request for consultations by another Member in that dispute or that otherwise does not exist as of the date of the request for consultations.

The question of whether a measure does x is a factual question because at that point it is not a question of the interpretation of a provision of a covered agreement or of whether a provision applies to the measure.

Definition of a measure

It is useful to recall that the covered agreements do not define the term "measure."  There is no such definition because the content of the term may vary from case to case.  For example, what constitutes a "measure" for purposes of the General Agreement on Tariffs and Trade 1994 may be different from what constitutes a measure for purposes of the Agreement on Trade-Related Aspects of Intellectual Property Rights or the DSU. 

The Appellate Body has suggested that "instruments of a Member containing rules or norms could constitute a ‘measure’, irrespective of how or whether those rules or norms are applied in a particular instance."  (Appellate Body Report, United States – Sunset Review of Anti-dumping Duties on Corrosion-resistant Carbon Steel Flat Products from Japan , WT/DS244/AB/R, adopted 9 January 2004, para. 82.)  The Appellate Body, in using the term "could constitute" clearly indicated that this is not intended to be a definition of "measure," but rather one starting point for analysis. In particular, not all such "instruments" are measures and not all measures are "instruments."  For example, a measure may not be an "instrument" but may be an "action" by a Member or in some cases could be viewed as "inaction" by a Member.  For example, a failure to submit a notification to the WTO could be viewed as "inaction."  (See, e.g., Article 12.6 of the Agreement on Safeguards.)  See for example the discussion by the Appellate Body in Guatemala – Anti-dumping Investigation Regarding Portland Cement from Mexico:  "In the practice established under the GATT 1947, a ‘measure’ may be any act of a Member, whether or not legally binding, and it can include even non-binding administrative guidance by a government.  A measure can also be an omission or a failure to act on the part of a Member.  (WT/DS60/AB/R at footnote 47, internal citations omitted.)

"3. The WTO dispute settlement system is almost unique in that adoption of panel and Appellate Body reports is quasi automatic under the reverse consensus rule. However, the reasoning and findings of reports may at times go beyond what the parties consider to be necessary to resolve the dispute, or, in some circumstances, may even be counterproductive to resolution of the dispute. It is proposed that there should be mechanisms that would enhance the parties’ flexibility to resolve the dispute and Members’ control over the adoption process."

The submission continues by making the following unformulated proposal:

"(b) providing a mechanism for parties, after review of the interim report, to delete by mutual agreement findings in the report that are not necessary or helpful to resolving the dispute, thus continuing to allow the parties to retain control over the terms of reference;"

"A rule should be adopted requiring that: members of the panels and the Appellate Body shall each give a written opinion on the issues raised, and the decision shall be the majority opinion of the members. This would assist to ensure a balance in the general development of the interpretation and application of the law, or the development of the jurisprudence, and to show and record various views on issues."

"5. A careful reading of the accumulated jurisprudence of the DS system thus far reveals that the interests and perspectives of developing countries have not been adequately taken into account. The panels and the Appellate Body have displayed an excessively sanitized concern with legalisms, often to the detriment of the evolution of a development-friendly jurisprudence. This stifling approach may be attributable to the requirement that every panel or Appellate Body Division should emerge with a single neat report. There is no provision for dissenting judgments in the DSU. [...]"

African Group
TN/DS/W/15

"The rules should [...] clarify that in disputes raising issues that exceed the trade competence of the WTO, advisory opinions may be sought from the International Court of Justice in order to promote international legal harmony"

Compensation for measures withdrawn:

"There should be a rule providing that: measures withdrawn by Members in the course of consultations, shall be notified to the DSB as mutually agreed solutions in accordance with Article 3.6. Where the mutually agreed solutions are notified, the DSB shall recommend compensation of injury suffered by the Member.

There should be a further rule requiring that: measures withdrawn without or prior to the commencement of any proceedings under the DSU shall entitle a Member to compensation that shall be enforceable under the DSU at the instance of the Members affected."

Monetary ex ante compensation:

"compensation should prominently reflect the need for monetary compensation to be continually paid pending and until the withdrawal of the measures in breach of WTO obligations. Such monetary compensation would address the loss suffered as a result of, and for the duration of, the measures in breach of WTO obligations, but without being a substitute for the withdrawal of those measures. The requirement that the measures in breach should be withdrawn, should not be affected by any provision for mandatory monetary compensation"

Collective Retaliation:

"There should be a provision stating that: in the resort to the suspension of concessions, all WTO Members shall be authorised to collectively suspend concessions to a developed Member that adopts measures in breach of WTO obligations against a developing Member, notwithstanding the requirement that suspension of concessions is to be based on the equivalent level of nullification and impairment of benefits."

Collective Retaliation:

"15. The lack of an effective enforcement mechanism and the potential negative impact of retaliatory measures for poor economies is well documented. LDCs are of the view that one solution to this handicap is to adopt a "principle of collective responsibility" akin to its equivalent under the United Nations Charter. Under this principle, all WTO Members would collectively have the right and responsibility to enforce the recommendations of the DSB. In the case where a developing or least-developed country Member has been a successful complainant, collective retaliation should be available automatically, as a matter of special and differential treatment. In determining whether to authorize collective retaliation, the DSB should not be constrained by quantification on the basis of the rule on nullification and impairment."

"The African Group does not consider it appropriate at this point in time, for the DS to be open to the public. The implications for business and for all Members, and utility for the public in developing-country Members, would need very careful examination."

US
TN/DS/W13 and TN/DS/W/86

US
TN/DS/W79

The DSU should provide that the public may observe all substantive panel, Appellate Body and arbitration meetings with the parties except those portions dealing with confidential information, such as business confidential information or law enforcement methods.  (This would include arbitration under Articles 21.3(c), 22.6, and 25 of the DSU.)  The DSU could provide a basic set of procedures for this purpose with some flexibility for the relevant body to refine these in light of the particular circumstances of a specific proceeding.  For example, the procedures could provide a number of options for allowing the public to observe the meetings, such as broadcasting meetings to special viewing facilities.

[...]

The DSU should provide that parties' submissions and written versions of oral statements in panel, Appellate Body, or arbitration proceedings are public, except those portions dealing with confidential information.

To help facilitate public access to these documents, the Secretariat should maintain them in a central location that would be responsible for making these documents available to the public.

[...]

The WTO should make a final panel report available to WTO Members and the public once it is issued to the parties, although only circulation would trigger the relevant DSU deadlines."

“As noted in the U.S. proposal in TN/DS/W/46, allowing civil society and WTO Members to observe a meeting does not require their physical presence in the meeting. 

Some alternatives to physical presence could be electronic broadcast, either through a closed-circuit or intranet facility or through webcasting. 

As the United States confirmed in TN/DS/W/46, those portions of meetings dealing with confidential information would not be open. 

Decision by the DSB: A final report issued by a panel to the parties shall be an unrestricted document, except for any confidential information (as defined in Article 18). Any interim report considered final by operation of the last sentence of paragraph 2 of Article 15 shall be unrestricted when considered final.

This decision is without prejudice to the practice concerning the date of circulation of the report.

African Group
TN/DS/W/15

EC TN/DS/W/1

"Regarding the right of the panels to seek information, the negotiations should clarify the position and adopt new rules stating that: un-requested information may be directed to the parties and shall not be directed to the panels [...].; "

[...] “The EC and its member States consider that it is necessary to define better the framework and the conditions for allowing such amicus curiae briefs in potentially all cases. Indeed, the acceptance of amicus curiae submissions should not lead to a delay in the proceeding, nor create substantial additional burdens for the developing Members.  At the same time, sufficient time should be given for the amicus curiae submissions to be meaningful and for the parties to review those briefs to the extent they were accepted by the panel or the Appellate Body.”

“Moreover, the procedural two-stage approach described by the Appellate Body should be retained, i.e. an application for leave and an effective submission. Amicus curiae submissions should be directly relevant for the factual and legal issues under consideration by the panel, or the legal issues raised in the appeal.” [...]

US

TN/DS/W/86
TN/DS/W/13

 “In light of the experience to date with amicus curiae submissions to panels and the Appellate Body, Members may wish to consider whether it would be helpful to propose guideline procedures for handling amicus curiae submissions to address those procedural concerns that have been raised by Members, panels and the Appellate Body.”

“The United States notes with interest the procedures proposed by the European Communities for handling amicus curiae submissions (TN/DS/W/1) and looks forward to working with the European Communities and other Members on this issue.  The United States does not believe that an amendment to the Dispute Settlement Understanding is necessary for this purpose.”

"Adoption of a DSB decision to:

• Provide an understanding on agreed procedures under Articles 21.5 and 22 of the DSU applicable to all current disputes (unless the parties have already entered into a bilateral understanding for that dispute) and future disputes.

• This understanding may be adapted for a particular dispute at the agreement of both parties.

(This understanding would be based on bilateral understandings submitted to the WTO to date – Members are invited to indicate examples of such understandings which might serve as a model)."

Establishment of a fund for assistance to developing countries:

"Developing-country Members will need supplementary resources and means to be provided to develop both the institutional and human capacity for using the DS. While this may be part of the technical assistance programmes, specific measures will be necessary to address this issue, such as the establishment of a permanent standing fund in the form for instance of a small cess on Membership contributions or otherwise within the framework of the Doha Development Agenda Global Trust Fund."

take into account "development implications":

"To take into account the development implications, on the basis that the DS should not ignore and must be part of the mechanisms for achieving the development objectives of the WTO, the terms of reference of the panels should include the following requirement: to evaluate the development implications of any findings and recommendations.

Further, there should be a rule in the context of Article 22 requiring that: before adopting the finding and recommendations of the panels and the Appellate Body, and before authorizing suspension of concessions, the DSB shall fully take into account reports to be prepared by relevant international organizations particularly UNCTAD and the UNDP on the development implications of the implementation of the findings and recommendations. In this regard, the adoption and authorization shall be done on appropriate terms and conditions that will ensure the promotion of the development prospects of developing-country Members."

legal/financial assistance to developing countries:

"[...] all provisions for special procedures should be improved to specifically provide for assistance in the form of, a pool of experts and lawyers in the preparation and conduct of cases, the payment of fees and expenses entailed, compilation by the WTO Secretariat of all applicable law including past decisions to be fully availed to and usable by both the parties and the panels/Appellate Body in each individual case."