Copyright 1995 NLCIFT
Title:UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES
UNDERSTANDING ON RULES AND PROCEDURES
GOVERNING THE SETTLEMENT OF DISPUTES
1. Coverage and Application
1.1 The rules and procedures of this Understanding shall apply
to disputes brought pursuant to the consultation and dispute
settlement rules and procedures of the agreements listed in
Appendix 1 to this Understanding, hereinafter referred to as the
"covered agreements." The rules and procedures of this
Understanding shall also apply to consultations and the
settlement of disputes between Members concerning their rights
and obligations under the provisions of the Agreement
Establishing the Multilateral Trade Organization (MTO) and of
this Understanding taken in isolation or in combination with any
other covered agreement.
1.2 These rules and procedures shall apply subject to such
special or additional rules and procedures on dispute settlement
contained in the covered agreements as are identified in Appendix
2 to this Understanding. To the extent that there is a
difference between the rules and procedures of this Understanding
and the special or additional rules and procedures set forth in
Appendix 2, the special or additional rules and procedures in
Appendix 2 shall prevail. In disputes involving rules and
procedures under more than one covered Agreement, if there is a
conflict between special or additional rules and procedures of
such Agreements under review, and where the parties to the
dispute cannot agree on rules and procedures within twenty days
of the establishment of the panel, the Chairman of the Dispute
Settlement Body, in consultation with the parties to the dispute,
shall determine the rules and procedures to be followed within
ten days after a request by either Member. The Chairman of the
Dispute Settlement Body shall be guided by the principle that
special or additional rules and procedures should be used where
possible, and the rules and procedures set out in this
Understanding should be used to the extent necessary to avoid
conflict.
2. Administration
2.1 The Dispute Settlement Body (DSB) established pursuant to
the Agreement Establishing the MTO shall administer these rules
and procedures and, except as otherwise provided in a covered
agreement, the consultation and dispute settlement provisions of
the covered agreements. Accordingly, the DSB shall have the
authority to establish panels, adopt panel and Appellate Body
reports, maintain surveillance of implementation of rulings and
recommendations, and authorize suspension of concessions and
other obligations under the covered agreements. With respect to
disputes arising under covered agreements contained in Annex 4 to
the MTO Agreement, the term "Member" as used herein shall refer
only to those Members that are parties to the relevant Annex 4
Agreements. Where the DSB administers the dispute settlement
provisions of a covered agreement contained in Annex 4, only
those Members that are parties to that agreement may participate
in decisions or actions taken by the DSB with respect to that
dispute.
2.2 The DSB shall inform the relevant MTO councils and
committees of any developments in disputes related to provisions
of the respective covered agreements.
2.3 The DSB shall meet as often as necessary to carry out its
functions within the time-frames provided in this Understanding.
2.4 Where the rules and procedures of this Understanding provide
for the DSB to take a decision, it shall do so by consensus.
3. General Provisions
3.1 The members of the MTO (hereinafter referred to as
"Members") affirm their adherence to the principles for the
management of disputes heretofore applied under Articles XXII and
XXIII of the GATT 1947, as further elaborated and modified
herein.
3.2 The dispute settlement system of the MTO is a central
element in providing security and predictability to the
multilateral trading system. The Members of the MTO recognize
that it serves to preserve the rights and obligations of Members
under the covered agreements, and to clarify the existing
provisions of those agreements in accordance with customary rules
of interpretation of public international law. Recommendations
and rulings of the DSB cannot add to or diminish the rights and
obligations provided in the covered agreements.
3.3 The prompt settlement of situations in which a Member
considers that any benefits accruing to it directly or indirectly
under the covered agreements are being impaired by measures taken
by another Member is essential to the effective functioning of
the MTO and the maintenance of a proper balance between the
rights and obligations of Members.
3.4 Recommendations or rulings made by the DSB shall be aimed at
achieving a satisfactory settlement of the matter in accordance
with the rights and obligations under this Understanding and
under the covered agreements.
3.5 All solutions to matters formally raised under the
consultation and dispute settlement rules and procedures of the
covered agreements, including arbitration awards, shall be
consistent with those agreements and shall not nullify or impair
benefits accruing to any Member under those agreements, nor
impede the attainment of any objective of those agreements.
3.6 Mutually agreed solutions to matters formally raised under
the consultation and dispute settlement provisions of the covered
agreements shall be notified to the DSB and the relevant councils
and committees, where any Member may raise any point relating
thereto.
3.7 Before bringing a case, a Member shall exercise its
judgement as to whether action under these procedures would be
fruitful. The aim of the dispute settlement mechanism is to
secure a positive solution to a dispute. A solution mutually
acceptable to the parties to a dispute and consistent with the
covered agreements is clearly to be preferred. In the absence of
a mutually agreed solution, the first objective of the dispute
settlement mechanism is usually to secure the withdrawal of the
measures concerned if these are found to be inconsistent with the
provisions of any of the covered agreements. The provision of
compensation should be resorted to only if the immediate
withdrawal of the measure is impracticable and as a temporary
measure pending the withdrawal of the measure which is
inconsistent with a covered agreement. The last resort which
this Understanding provides to the Member invoking the dispute
settlement procedures is the possibility of suspending the
application of concessions or other obligations under the covered
agreements on a discriminatory basis vis-…-vis the other Member,
subject to authorization by the DSB of such measures.
3.8 In cases where there is an infringement of the obligations
assumed under a covered agreement, the action is considered
prima facie to constitute a case of nullification or impairment.
This means that there is normally a presumption that a breach of
the rules has an adverse impact on other Members parties to that
covered agreement, and in such cases, it shall be up to the
Member against whom the complaint has been brought to rebut the
charge.
3.9 The provisions of this Understanding are without prejudice
to the rights of Members to seek authoritative interpretation of
provisions of a covered agreement through decision making under
the Agreement Establishing the MTO or a covered agreement.
3.10 It is understood that requests for conciliation and the use
of the dispute settlement procedures should not be intended or
considered as contentious acts and that, if disputes arise, all
Members will engage in these procedures in good faith in an
effort to resolve the disputes. It is also understood that
complaints and counter-complaints in regard to distinct matters
should not be linked.
3.11 This Understanding shall be applied only with respect to new
requests for consultations under the consultation provisions of
the covered agreements made on or after the date of entry into
force of this Understanding. With respect to disputes for which
the request for consultations was made under the GATT 1947 or
under any other predecessor agreement to the covered agreements
before the date of entry into force of this Understanding, the
relevant dispute settlement rules and procedures in effect
immediately prior to the date of entry into force of this
Understanding shall continue to apply.
3.12 Notwithstanding paragraph 3.11 above, if a complaint based
on any of the Agreements covered by this Understanding is brought
by a developing country Member against a developed country
Member, the complaining party shall have the rights to invoke, as
an alternative to the provisions contained in paragraphs 4, 5, 6
and 12 of this Understanding, the corresponding provisions of the
Decision of CONTRACTING PARTIES of 5 April 1966 (BISD 14S/18),
except that where the Panel considers that the time frame
provided for in paragraph 7 of that decision is insufficient to
provide its report and with the agreement of the complaining
party, that time frame may be extended. To the extent that there
is a difference between the rules and procedures of those
paragraphs and the corresponding rules and procedures of the
Decision, the latter shall prevail.
4. Consultations
4.1 The Members affirm their resolve to strengthen and improve
the effectiveness of the consultation procedures employed by
Members.
4.2 Each Member undertakes to accord sympathetic consideration
to and afford adequate opportunity for consultation regarding any
representations made by another Member concerning measures
affecting the operation of the covered agreements taken within
the territory of the former.
4.3 If a request for consultations is made pursuant to a covered
agreement, the Member to which the request is made shall, unless
otherwise mutually agreed, reply to the request within ten days
after its receipt and shall enter into consultations in good
faith within a period of no more than thirty days from the date
of the request, with a view to reaching a mutually satisfactory
solution. If the Member does not respond within ten days, or does
not enter into consultations within a period of no more than
thirty days, or a period otherwise mutually agreed, from the date
of the request, then the Member that requested the holding of
consultations may proceed directly to request the establishment
of a panel.
4.4 All such requests for consultations shall be notified to the
DSB and the relevant Councils and Committees by the Member which
requests consultations. Any request for consultations shall be
submitted in writing and shall give the reasons for the request,
including identification of the measures at issue and an
indication of the legal basis for the complaint.
4.5 In the course of consultations in accordance with the
provisions of a covered agreement, before resorting to further
action under this Understanding, Members should attempt to obtain
satisfactory adjustment of the matter.
4.6 Consultations shall be confidential, and without prejudice
to the rights of either Member in any further proceedings.
4.7 If the consultations fail to settle a dispute within sixty
days after the request for consultations, the complaining party
may request the establishment of a panel. The complaining party
may request a panel during the sixty-day period if the consulting
parties jointly consider that consultations have failed to settle
the dispute.
4.8 In cases of urgency, including those which concern
perishable goods, Members shall enter into consultations within a
period of no more than ten days from the date of the request. If
the consultations have failed to settle the dispute within a
period of twenty days after the request, the complaining party
may request the establishment of a panel.
4.9 In cases of urgency, including those which concern
perishable goods, the parties to the dispute, panels and the
appellate body shall make every effort to accelerate the
proceedings to the greatest extent possible.
4.10 During consultations Members should give special attention
to the particular problems and interests of developing country
Members.
4.11 Whenever a Member other than the consulting Members
considers that it has a substantial trade interest in
consultations being held pursuant to Article XXII:1 of the GATT,
Article XXII:1 of the GATS Agreement or the corresponding
provisions in other covered agreements, such Member may notify
the consulting Members and the DSB, within ten days 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 Article XXII:1 or XXIII:1 of the
GATT, Article XXII:1 or XXIII:1 of the GATS Agreement or the
corresponding provisions in other covered agreements.
5. Good Offices, Conciliation and Mediation
5.1 Good offices, conciliation and mediation are procedures that
are undertaken voluntarily if the parties to the dispute so
agree.
5.2 Proceedings involving good offices, conciliation and
mediation, and in particular positions taken by the parties to
the dispute during these proceedings, shall be confidential, and
without prejudice to the rights of either party in any further
proceedings under these procedures.
5.3 Good offices, conciliation and mediation may be requested at
any time by any party to a dispute. They may begin at any time
and be terminated at any time. Once terminated, the complaining
party can then proceed with a request for the establishment of a
panel.
5.4 When good offices, conciliation or mediation are entered
into within sixty days of a request for consultations, the
complaining party must allow a period of sixty days from the date
of the request for consultations before requesting the
establishment of a panel. The complaining party may request a
panel during the sixty days if the parties to the dispute jointly
consider that the good offices, conciliation or mediation process
has failed to settle the dispute.
5.5 If the parties to a dispute agree, procedures for good
offices, conciliation or mediation may continue while the panel
process proceeds.
5.6 The Director-General may, acting in an ex officio
capacity, offer good offices, conciliation or mediation with the
view to assisting Members to settle a dispute.
6. Establishment of Panels
6.1 If the complaining party so requests, a panel shall be
established at the latest at the DSB meeting following that at
which the request first appears as an item on the DSB's agenda,
unless at that meeting the DSB decides by consensus not to
establish a panel.
6.2 The request for the establishment of a panel shall be
made in writing. It shall indicate whether consultations were
held, identify the specific measures at issue and provide a brief
summary of the legal basis of the complaint sufficient to present
the problem clearly. In case the applicant requests the
establishment of a panel with other than standard terms of
reference, the written request shall include the proposed text of
special terms of reference.
7. Terms of Reference of Panels
7.1 Panels shall have the following terms of reference
unless the parties to the dispute agree otherwise within twenty
days from the establishment of the panel:
"To examine, in the light of the relevant provisions in
(name of the covered agreement/s cited by the parties to the
dispute), the matter referred to the DSB by (name of party) in
document DS/... and to make such findings as will assist the DSB
in making the recommendations or in giving the rulings provided
for in that/those agreement/s."
7.2 Panels shall address the relevant provisions in any
covered agreement/s cited by the parties to the dispute.
7.3 In establishing a panel, the DSB may authorize its
Chairman to draw up the terms of reference of the panel in
consultation with the parties to the dispute subject to the
provisions of paragraph 7.1 above. The terms of reference thus
drawn up shall be circulated to all Members. If other than
standard terms of reference are agreed upon, any Member may raise
any point relating thereto in the DSB.
8. Composition of Panels
8.1 Panels shall be composed of well-qualified governmental
and/or non-governmental individuals, including persons who have
served on or presented a case to a panel, served as a
representative of an MTO Member or of a contracting party to the
GATT 1947 or as a representative to a council or committee of any
covered agreement or its predecessor agreement, or in the
Secretariat, taught or published on international trade law or
policy, or served as a senior trade policy official of a Member.
8.2 Panel members should be selected with a view to
ensuring the independence of the members, a sufficiently diverse
background and a wide spectrum of experience.
8.3 Citizens of Members whose governments are parties to
the dispute or third parties as defined in paragraph 10.2 shall
not serve on a panel concerned with that dispute, unless the
parties to the dispute agree otherwise.
8.4 To assist in the selection of panelists, the
Secretariat shall maintain an indicative list of governmental and
non-governmental individuals possessing the qualifications
outlined in paragraph 1 above, from which panelists may be drawn
as appropriate. That list shall include the roster of non-
governmental panelists that was established by the GATT
CONTRACTING PARTIES on 30 November 1984 (BISD 31S/9), and other
rosters and indicative lists established under any of the covered
agreements, and shall retain the names of persons on those
rosters and indicative lists at the time of entry into force of
this Understanding. Members may periodically suggest names of
governmental and non-governmental individuals for inclusion on
the indicative list, providing relevant information on their
knowledge of international trade and of the sectors or subject
matter of the covered agreements, and those names shall be added
to the list upon approval by the DSB. For each of the
individuals on the list, the list shall indicate specific areas
of experience or expertise of the individuals in the sectors or
subject matter of the covered agreements.
8.5 Panels shall be composed of three panelists unless the
parties to the dispute agree, within ten days from the
establishment of the panel, to a panel composed of five
panelists. Members shall be informed promptly of the composition
of the Panel.
8.6 The Secretariat shall propose nominations for the panel
to the parties to the dispute. The parties to the dispute shall
not oppose nominations except for compelling reasons.
8.7 If there is no agreement on the panelists within twenty
days from the establishment of a panel, at the request of either
party, the Director-General in consultation with the Chairman of
the DSB, and the Chairman of the relevant committee or council,
shall form the panel by appointing the panelists whom he or she
considers most appropriate in accordance with any relevant
special or additional procedure of the covered agreement, after
consulting with the parties to the dispute. The Chairman of the
DSB shall inform the Members of the composition of the panel thus
formed no later than ten days from the date he or she receives
such a request.
8.8 Members shall undertake, as a general rule, to permit
their officials to serve as panelists.
8.9 Panelists shall serve in their individual capacities
and not as government representatives, nor as representatives of
any organization. Governments shall therefore not give them
instructions nor seek to influence them as individuals with
regard to matters before a panel.
8.10 When a dispute is between a developing country Member and a
developed country Member the panel shall, if the developing
country Member so requests, include at least one panelist from a
developing country Member.
8.11 Panelists' expenses, including travel and subsistence
allowance, shall be met from the MTO budget in accordance with
criteria to be adopted by the General Council of the MTO, based
on recommendations of the Committee on Budget, Finance and
Administration.
9. Procedures for Multiple Complainants
9.1 Where more than one Member requests the establishment
of a panel related to the same matter, a single panel may be
established to examine these complaints taking into account the
rights of all Members concerned. A single panel should be
established to examine such complaints whenever feasible.
9.2 The single panel will organize its examination and
present its findings to the DSB so that the rights which the
parties to the dispute would have enjoyed had separate panels
examined the complaints are in no way impaired. If one of the
parties to the dispute so requests, the panel will submit
separate reports on the dispute concerned. The written
submissions by each of the complainants will be made available to
the other complainants, and each complainant will have the right
to be present when one of the other complainants presents its
view to the panel.
9.3 If more than one panel is established to examine the
complaints related to the same matter, to the greatest extent
possible the same persons shall serve as panelists on each of the
separate panels and the timetable for the panel process in such
disputes shall be harmonized.
10. Third Parties
10.1 The interests of the parties to a dispute and those of other
Members of a covered agreement at issue in the dispute shall
be fully taken into account during the panel process.
10.2 Any Member, of a covered agreement at issue in a
dispute, having a substantial interest in a matter before a panel
and having notified its interest to the DSB, (hereinafter
referred to as a "third party") shall have an opportunity to be
heard by the panel and to make written submissions to the panel.
These submissions shall also be given to the parties to the
dispute and shall be reflected in the panel report.
10.3 Such third parties shall receive submissions of the parties
to the dispute for the first meeting of the panel.
10.4 If a third party considers a measure already the subject of
a panel proceeding nullifies or impairs benefits accruing to it
under any covered agreement, that Member may have recourse to
normal dispute settlement procedures under this Understanding.
Such a dispute shall be referred to the original panel wherever
possible.
11. Function of Panels
11.1 The function of panels is to assist the DSB in discharging
its responsibilities under this Understanding and the covered
agreements. Accordingly, a panel should make an objective
assessment of the matter before it, including an objective
assessment of the facts of the case and the applicability of and
conformity with the relevant covered agreements, and make such
other findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in the
covered agreements. Panels should consult regularly with the
parties to the dispute and give them adequate opportunity to
develop a mutually satisfactory solution.
12. Panel Procedures
12.1 Panels shall follow the Working Procedures appended hereto
unless the panel decides otherwise after consulting the parties
to the dispute.
12.2 Panel procedures should provide sufficient flexibility
so as to ensure high-quality panel reports, while not unduly
delaying the panel process.
12.3 After consulting the parties to the dispute, the panelists
shall, as soon as practicable and whenever possible within one
week after the composition and terms of reference of the panel
have been agreed upon, fix the timetable for the panel process,
taking into account the provisions of paragraph 4.9, if relevant.
12.4 In determining the timetable for the panel process, the
panel shall provide sufficient time for the parties to the
dispute to prepare their submissions.
12.5 Panels should set precise deadlines for written submissions
by the parties and the parties should respect those deadlines.
12.6 Each party to the dispute shall deposit its written
submissions with the Secretariat for immediate transmission to
the panel and to the other party or parties to the dispute. The
complaining party shall submit its first submission in advance of
the responding party's first submission unless the panel decides,
in fixing the timetable referred to in paragraph 12.3 above and
after consultations with the parties to the dispute, that the
parties should submit their first submissions simultaneously.
When there are sequential arrangements for the deposit of first
submissions, the panel shall establish a firm time period for
receipt of the responding party's submission. Any subsequent
written submissions shall be submitted simultaneously.
12.7 Where the parties to the dispute have failed to develop a
mutually satisfactory solution, the panel shall submit its
findings in a written form. In such cases, the report of a panel
shall set out the findings of fact, the applicability of relevant
provisions and the basic rationale behind any findings and
recommendations that it makes. Where a settlement of the matter
among the parties to the dispute has been found, the report of
the panel shall be confined to a brief description of the case
and to reporting that a solution has been reached.
12.8 In order to make the procedures more efficient, the period
in which the panel shall conduct its examination, from the time
the composition and terms of reference of the panel have been
agreed upon to the time when the final report is provided to the
parties to the dispute, shall, as a general rule, not exceed six
months. In cases of urgency, including those relating to
perishable goods, the panel shall aim to provide its report to
the parties to the dispute within three months.
12.9 When the panel considers that it cannot provide its report
within six months, or within three months in cases of urgency, it
shall inform the DSB in writing of the reasons for the delay
together with an estimate of the period within which it will
submit its report. In no case should the period from the
establishment of the panel to the submission of the report to the
Members exceed nine months.
12.10 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 4.7 and 4.8. If,
after the relevant period has elapsed, the consulting parties
cannot agree that the consultations have concluded, the Chairman
of the DSB shall decide, after consultation with the parties,
whether to extend the relevant period and, if so, for how long.
In addition, in examining a complaint against a developing
country Member, the panel shall accord sufficient time for the
developing country Member to prepare and present its
argumentation. The provisions of paragraphs 20.1 and 21.4 are not
affected by any action pursuant to this paragraph.
12.11 Where one or more of the parties is a developing
country Member, the panel's report shall explicitly indicate the
form in which account has been taken of relevant provisions on
differential and more-favourable treatment for developing country
Members that form part of the covered agreements which have been
raised by the developing country Member in the course of the
dispute settlement procedures.
12.12 The panel may suspend its work at any time at the
request of the complaining party for a period not to exceed
twelve months. In the event of such a suspension, the time
frames set out in paragraphs 12.8, 12.9, 20.1 and 21.4 shall be
extended by the amount of time that the work was suspended. If
the work of the panel has been suspended for more than twelve
months, the authority for establishment of the panel shall lapse.
13. Right to Seek Information
13.1 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 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.
13.2 Panels may seek information from any relevant source and may
consult experts to obtain their opinion on certain aspects of the
matter. With respect to a factual issue concerning a scientific
or other technical matter raised by a party to a dispute, a panel
may request an advisory report in writing from an expert review
group. Rules for the establishment of such a group and its
procedures are set forth in Appendix 4.
14. Confidentiality
14.1 Panel deliberations shall be confidential.
14.2 The reports of panels shall be drafted without the presence
of the parties to the dispute in the light of the information
provided and the statements made.
14.3 Opinions expressed in the panel report by individual
panelists shall be anonymous.
15. Interim Review Stage
15.1 Following the consideration of rebuttal submissions and oral
arguments, the panel shall submit the descriptive (factual and
argument) sections of its draft report to the parties. Within a
period of time set by the panel, the parties shall submit their
comments in writing.
15.2 Following the deadline for receipt of comments from the
parties, the panel shall issue an interim report to the parties,
including both the descriptive sections and the panel's findings
and conclusions. Within a period of time set by the panel, a
party may submit a written request for the panel to review
precise aspects of the interim report prior to circulation of the
final report to the Members. At the request of a party, the
panel shall hold a further meeting with the parties on the issues
identified in the written comments. If no comments are received
from any party within the comment period, the interim report
shall be considered the final panel report and circulated
promptly to the Members.
15.3 The findings of the final panel report shall include a
discussion of the arguments made at the interim review stage. The
interim review stage shall be conducted within the time period
set out in paragraph 12.8.
16. Adoption of Panel Reports
16.1 In order to provide sufficient time for the Members of the
DSB to consider panel reports, the reports shall not be
considered for adoption by the DSB until twenty days after they
have been issued to the Members.
16.2 Members having objections to panel reports shall give
written reasons to explain their objections for circulation at
least ten days prior to the DSB meeting at which the panel report
will be considered.
16.3 The parties to a dispute shall have the right to participate
fully in the consideration of the panel report by the DSB, and
their views shall be fully recorded.
16.4 Within sixty days of the issuance of a panel report to the
Members, the report shall be adopted at a DSB meeting unless
one of the parties to the dispute formally notifies the DSB of
its decision to appeal or the DSB decides by consensus not to
adopt the report. If a party has notified its intention 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.
17. Appellate Review
Standing Appellate Body
17.1 A standing Appellate Body shall be established by the DSB.
The Appellate Body shall hear appeals from panel cases. It shall
be composed of seven persons, three of whom shall serve on any
one case. Persons serving on of the Appellate Body shall serve
in rotation. Such rotation shall be determined in the working
procedures of the Appellate Body.
17.2 The DSB shall appoint persons to serve on the Appellate Body
for a four-year term, and each person may be reappointed once.
However, the terms of three of the seven persons appointed
immediately after the entry into force of this Understanding
shall expire at the end of two years, to be determined by lot.
Vacancies shall be filled as they arise. A person appointed to
replace a person whose term of office has not expired shall hold
office for the remainder of his or her predecessor's term.
17.3 The Appellate Body shall be comprised of persons of
recognized authority, with demonstrated expertise in law,
international trade and the subject matter of the covered
agreements generally. They shall be unaffiliated with any
government. The Appellate Body membership shall be broadly
representative of membership in the MTO. All persons serving on
the Appellate Body shall be available at all times and on short
notice, and shall stay abreast of dispute settlement activities
and other relevant activities of the MTO. They shall not
participate in the consideration of any disputes that would
create a direct or indirect conflict of interest.
17.4 Only parties to the dispute, not third parties, may appeal a
panel decision. Third parties which have notified the DSB of a
substantial interest in the matter pursuant to paragraph 10.2 may
make written submissions to, and be given an opportunity to be
heard by, the Appellate Body.
17.5 As a general rule, the proceedings shall not exceed sixty
days from the date a party to the dispute formally notifies its
intent to appeal to the date the Appellate Body issues its
decision. In fixing its timetable the Appellate Body shall take
into account the provisions of paragraph 4.9, if relevant. When
the Appellate Body considers that it cannot provide its report
within sixty days, it shall inform the DSB in writing of the
reasons for the delay together with an estimate of the period
within which it will submit its report. In no case shall the
proceedings exceed ninety days.
17.6 An appeal shall be limited to issues of law covered in the
panel report and legal interpretation developed by the panel.
17.7 The Appellate Body shall be provided with appropriate
administrative and legal support as it requires.
17.8 The expenses of persons serving on the Appellate Body,
including travel and subsistence allowance, shall be met from the
MTO budget in accordance with criteria to be adopted by the
General Council of the MTO, based on recommendations of the
Committee on Budget, Finance and Administration.
Procedures for Appellate Review
17.9 Working procedures shall be drawn up by the Appellate Body
in consultation with the Chairman of the DSB and the Director-
General, and communicated to the Members for their information.
17.10 The proceedings of the Appellate Body shall be
confidential. The reports of the Appellate Body shall be
drafted without the presence of the parties to the dispute and in
the light of the information provided and the statements made.
17.11 Opinions expressed in the Appellate Body report by
individuals serving on the Appellate Body shall be anonymous.
17.12 The Appellate Body shall address each of the issues
raised in accordance with paragraph 17.6 during the appellate
proceeding.
17.13 The Appellate Body may uphold, modify or reverse the
legal findings and conclusions of the panel.
Adoption of Appellate Reports
17.14 An appellate report shall be adopted by the DSB and
unconditionally accepted by the parties to the dispute unless the
DSB decides by consensus not to adopt the appellate report within
thirty days following its issuance to the Members. This
adoption procedure is without prejudice to the right of Members
to express their views on an appellate report.
18. Communications with the panel or Appellate Body
18.1 There shall be no ex parte communications with the panel or
Appellate Body concerning matters under consideration by the
panel or Appellate Body.
18.2 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 statement 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.
19. Panel and Appellate Body Recommendations
19.1 Where a panel or the Appellate Body concludes that a measure
is inconsistent with a covered agreement, it shall recommend that
the Member concerned bring the measure into conformity with
that Agreement. In addition to its recommendations, the
panel or Appellate Body may suggest ways in which the Member
concerned could implement the recommendations.
19.2 In accordance with paragraph 3.2 above, in their findings
and recommendations, the panel and Appellate Body cannot add to
or diminish the rights and obligations provided in the covered
agreements.
20. Time-Frame for DSB Decisions
20.1 Unless otherwise agreed to by the parties to the dispute,
the period from the establishment of the Panel by the DSB until
the DSB considers the panel or appellate report for adoption
shall not as a general rule exceed nine months where the report
is not appealed or twelve months where the report is appealed.
Where either the panel or the Appellate Body has acted, pursuant
to paragraph 12.9 or 17.5, to extend the time of providing its
report, the additional time taken shall be added to the above
periods.
21. Surveillance of Implementation of Recommendations and
Rulings
21.1 Prompt compliance with recommendations or rulings of the DSB
is essential in order to ensure effective resolution of disputes
to the benefit of all Members.
21.2 Particular attention should be paid to matters affecting the
interests of developing country Members with respect to measures
which have been subject to dispute settlement.
21.3 At a DSB meeting held within thirty days of the 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 in which to do so. The reasonable period of time shall be:
(a) the period of time proposed by the Member concerned,
provided that such period is approved by the DSB; or,
in the absence of such approval,
(b) a period of time mutually agreed by the parties to the
dispute within forty-five days following adoption of
the recommendations and rulings; or, in the absence of
such agreement,
(c) a period of time determined through binding arbitration
within ninety days following adoption of the
recommendations and rulings. 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
fifteen months from the adoption of a panel or
Appellate Body report. However, that time may be
shorter or longer, depending upon the particular
circumstances.
21.4 Except where the panel or the Appellate Body has extended,
pursuant to paragraph 12.9 or 17.5, the time of providing its
report, the period from the date of establishment of the panel by
the DSB until the determination of the reasonable period of time
shall not exceed fifteen months unless the parties to the dispute
agree otherwise. Where either the panel or the Appellate Body
has acted to extend the time of providing its report, the
additional time taken shall be added to the fifteen-month period;
provided that unless the parties to the dispute agree that there
are exceptional circumstances, the total time shall not exceed
eighteen months.
21.5 Where there is disagreement as to the existence or
consistency with a covered agreement of measures taken to comply
with the recommendations and rulings such dispute shall be
decided through recourse to these dispute settlement procedures,
involving resort to the original panel wherever possible. The
panel shall issue its decision within ninety days of referral of
the matter to it. When the panel considers that it cannot
provide its report within this time frame, it shall inform the
DSB in writing of the reasons for the delay together with an
estimate of the period within which it will submit its report.
21.6 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 on the agenda of the DSB
meeting after six months following the establishment of the
reasonable period of time pursuant to paragraph 21.3 and shall
remain on the DSB's agenda until the issue is resolved. At least
ten days prior to each such DSB meeting, the Member concerned
shall provide the DSB with a status report in writing of its
progress in the implementation of the recommendations or rulings.
21.7 If the matter is one which has been raised by a developing
country Member the DSB shall consider what further action it
might take which would be appropriate to the circumstances.
21.8 If the case is one brought by a developing country Member,
in considering what appropriate action might be taken, the DSB
shall take into account not only the trade coverage of measures
complained of, but also their impact on the economy of developing
country Members concerned.
22. Compensation and the Suspension of Concessions
22.1 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.
22.2 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 21.3 above, 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 twenty days after the 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.
22.3 In considering what concessions or other obligations to
suspend, the complaining party shall apply the following
principles and procedures:
(a) The general principle is that the complaining party
should first seek to suspend concessions or other
obligations with respect to the same sector(s) as that
in which the panel or Appellate Body has found a
violation or other nullification or impairment.
(b) If that party considers that it is not practicable or
effective to suspend concessions or other obligations
with respect to the same sectors, it may seek to
suspend concessions or other obligations in other
sectors under the same agreement.
(c) If that party considers that it is not practicable or
effective to suspend concessions or other obligations
with respect to other sectors under the same agreement,
and that the circumstances are serious enough, it may
seek to suspend concessions or other obligations under
another covered agreement.
(d) In applying the above principles, that party shall take
into account:
(i) the trade in the sector or under the agreement
under which the panel or Appellate Body has found
a violation or other nullification or impairment,
and the importance of such trade to that party;
(ii) the broader economic elements related to the
nullification or impairment and the broader
economic consequences of the suspension of
concessions or other obligations.
(e) If that party decides to request authorization to
suspend concessions or other obligations pursuant to
(b) or (c) above, it shall state the reasons therefor
in its request. At the same time as the request is
forwarded to the DSB, it also shall be forwarded to the
relevant Councils and also, in the case of a request
pursuant to (b), the relevant sectoral bodies.
(f) For purposes of this paragraph, "sector" means:
þ With respect to goods, all goods;
þ With respect to services, a principal sector as
identified in the current "Services Sectoral
Classification List" which identifies such
sectors;
þ With respect to trade-related intellectual
property rights, each of the categories of
intellectual property rights covered in Section 1,
or Section 2, or Section 3, or Section 4, or
Section 5, or Section 6, or Section 7 of Part II,
or the obligations under Part III, or Part IV of
the Agreement on Trade-Related Aspects of
Intellectual Property Rights, including Trade in
Counterfeit Goods ("Agreement on TRIPS").
(g) For purposes of this paragraph, "agreement" means:
þ With respect to goods, the agreements listed in
Annex 1A of the MTO Agreement, taken as a whole as
well as the agreements listed in Annex 4 of the
MTO Agreement in so far as the relevant parties to
the dispute are parties to these agreements;
þ With respect to services, the GATS;
þ With respect to intellectual property rights, the
Agreement on TRIPS.
22.4 The level of the suspension of concessions or other
obligations authorized by the DSB shall be equivalent to the
level of the nullification or impairment.
22.5 The Dispute Settlement Body shall not authorize suspension
of concessions or other obligations if a covered agreement
prohibits such suspension.
22.6 When the situation described in paragraph 22.2 above occurs,
the DSB, upon request, shall grant authorization to suspend
concessions or other obligations within thirty days of the expiry
of the reasonable period of time unless the DSB decides by
consensus to reject the request. However, if the Member
concerned objects to the level of suspension proposed, or claims
that the principles and procedures set forth in paragraph 22.3
above have not been followed where a complaining party has
requested authorization to suspend concessions or other
obligations pursuant to paragraph 22.3(b) or (c) above, the
matter shall be referred to arbitration. Such arbitration shall
be carried out by the original panel, if members are available,
or by an arbitrator appointed by the Director-General and
shall be completed within sixty days of the expiry of the
reasonable period of time. Concessions or other obligations
shall not be suspended during the course of the arbitration.
22.7 The arbitrator acting pursuant to paragraph 22.6 above
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 22.3 above 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 22.3 above. The parties shall accept the arbitrator's
decision as final and the parties concerned shall not seek a
second arbitration. The DSB shall be informed promptly of the
decision of the arbitrator and shall upon request, grant
authorization to suspend 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.
22.8 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. In
accordance with paragraph 21.6 above, 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.
22.9 The dispute settlement provisions of the covered agreements
may be invoked in respect of measures affecting their observance
taken by regional or local governments or authorities within the
territory of a Member. When the DSB has ruled that a provision
of a covered agreement has not been observed, the responsible
Member shall take such reasonable measures as may be available to
it to ensure its observance. The provisions of the covered
agreements and this Understanding relating to compensation and
suspension of concessions or other obligations apply in cases
where it has not been possible to secure such observance.
23. Strengthening of the Multilateral System
23.1 When Members seek the redress of a violation of obligations
or other nullification or impairment of benefits under the
covered agreements or an impediment to the attainment of any
objective of the covered agreements, they shall have recourse to,
and abide by, the rules and procedures of this Understanding.
23.2 In such cases, Members shall:
(a) not make a determination to the effect that a violation
has occurred, that benefits have been nullified or
impaired or that the attainment of any objective of the
covered agreements has been impeded, except through
recourse to dispute settlement in accordance with the
rules and procedures of this Understanding, and shall
make any such determination consistent with the
findings contained in the panel or Appellate Body
report adopted by the DSB or an arbitration award
rendered under this Understanding;
(b) follow the procedures set forth in Section 21 of this
Understanding to determine the reasonable period of
time for the Member concerned to implement the
recommendations and rulings; and
(c) follow the procedures set forth in Section 22 of the
Understanding to determine the level of suspension of
concessions or other obligations and obtain DSB
authorization in accordance with those procedures
before suspending concessions or other obligations
under the covered agreements in response to the failure
of the Member concerned to implement the
recommendations and rulings within that reasonable
period of time.
24. Special Procedures involving Least-Developed Country
Members
24.1 At all stages of the determination of the causes of a
dispute and of dispute settlement procedures involving a least-
developed country Member, particular consideration shall be given
to the special situation of least-developed country Members. In
this regard, Members shall exercise due restraint in raising
matters under these procedures involving a least developed
country Member. If nullification or impairment is found to
result from a measure taken by a least developed country Member,
complaining parties shall exercise due restraint in asking for
compensation or seeking authorization to suspend the application
of concessions or other obligations pursuant to these procedures.
24.2 In dispute settlement cases involving a least-developed
country Member where a satisfactory solution has not been found
in the course of consultations the Director-General or the
Chairman of the DSB shall, upon request by a least-developed
country Member offer their good offices, conciliation and
mediation with a view to assisting the parties to settle the
dispute, before a request for a panel is made. The Director-
General or the Chairman of the DSB, in providing the above
assistance, may consult any source which they deem appropriate.
25. Arbitration
25.1 Expeditious arbitration within the MTO as an alternative
means of dispute settlement can facilitate the solution of
certain disputes that concern issues that are clearly defined by
both parties.
25.2 Except as otherwise provided in this Understanding, resort
to arbitration shall be subject to mutual agreement of the
parties which shall agree on the procedures to be followed.
Agreements to resort to arbitration shall be notified to all
Members sufficiently in advance of the actual commencement of the
arbitration process.
25.3 Other Members may become party to an arbitration proceeding
only upon the agreement of the parties which have agreed to have
recourse to arbitration. The parties to the proceeding shall
agree to abide by the arbitration award. Arbitration awards shall
be notified to the DSB and the council or committee of any
relevant agreement where any Member may raise any point relating
thereto.
25.4 Sections 21 and 22 of this Understanding shall apply
mutatis mutandis to arbitration awards.
26. Non-Violation
26.1 Complaints of the Type Described in Article XXIII:1(b) of
GATT 1994
Where the provisions of Article XXIII:1(b) of the GATT 1994
are applicable to a covered agreement, a panel or the Appellate
Body may only make rulings and recommendations where a party
to the dispute considers that any benefit accruing to it directly
or indirectly under the relevant covered agreement is being
nullified or impaired or the attainment of any objective of that
Agreement is being impeded as a result of the application by a
Member of any measure, whether or not it conflicts with the
provisions of that Agreement. Where and to the extent that such
party considers and a panel or the Appellate Body determines that
a case concerns a measure that does not conflict with the
provisions of a covered agreement to which the provisions of
Article XXIII:1(b) of GATT 1994 are applicable, the procedures in
this Understanding shall apply, subject to the following:
(a) The complaining party shall present a detailed
justification in support of any complaint relating to a
measure which does not conflict with the relevant
covered agreement.
(b) Where a measure has been found to nullify or impair
benefits under, or impede the attainment of objectives,
of the relevant covered agreement without violation
thereof, there is no obligation to withdraw the
measure. However, in such cases, the panel or the
Appellate Body shall recommend that the Member
concerned make a mutually satisfactory adjustment.
(c) Notwithstanding the provisions of paragraph 21, the
arbitration provided for in paragraph 21.3, upon
request of either party, may include a determination of
the level of benefits which have been nullified or
impaired, and may also suggest ways and means of
reaching a mutually satisfactory adjustment; such
suggestions shall not be binding upon the parties.
(d) Notwithstanding the provisions of paragraph 22.1,
compensation may be part of a mutually satisfactory
adjustment as final settlement of the dispute.
26.2 Complaints of the Type Described in Article XXIII:1(c) of
GATT 1994
Where the provisions of Article XXIII:1(c) of the GATT 1994
are applicable to a covered agreement, a panel may only make
rulings and recommendations where a party considers that any
benefit accruing to it directly or indirectly under the relevant
covered agreement is being nullified or impaired or the
attainment of any objective of that Agreement is being impeded as
a result of the existence of any situation other than those to
which the provisions of Article XXIII:1(a) and (b) of GATT 1994
are applicable. Where and to the extent that such party
considers and a panel determines that the matter is covered by
this paragraph, the procedures of this Understanding shall apply
only up to and including the point in the proceedings where the
panel report has been issued to the Members. The dispute
settlement rules and procedures contained in the Decision of the
GATT Council of Representatives of 12 April 1989 (BISD 36S/61)
shall apply to consideration for adoption, and surveillance and
implemation of recommendations and rulings. The following shall
also apply:
(a) The complaining party shall present a detailed
justification in support of any argument made with
respect to issues covered under this paragraph.
(b) In cases involving matters covered by this paragraph,
if a panel finds that cases also involve dispute
settlement matters other than those covered by this
paragraph, the panel shall issue a report addressing
any such matters and a separate report on matters
falling under this paragraph.
27. Responsibilities of the Secretariat
27.1 The MTO Secretariat shall have the responsibility of
assisting the panels, especially on the legal, historical and
procedural aspects of the matters dealt with, and of providing
secretarial and technical support.
27.2 While the Secretariat assists Members in respect of dispute
settlement at their request, there may also be a need to provide
additional legal advice and assistance in respect of dispute
settlement to developing country Members. To this end, the
Secretariat shall make available a qualified legal expert from
the MTO technical co-operation services to any developing
country Member which so requests. This expert shall assist the
developing country Member in a manner ensuring the continued
impartiality of the Secretariat.
27.3 The Secretariat shall conduct special training courses for
interested Members concerning these dispute settlement procedures
and practices so as to enable Members' experts to be better
informed in this regard.
APPENDIX 1
AGREEMENTS COVERED BY THE UNDERSTANDING
A) Agreement Establishing the Multilateral Trade Organization
B) Annex 1A: Agreements on trade in goods
Annex 1B: General Agreement on Trade in Services
Annex 1C: Agreement on Trade-Related Aspects of Intellectual
Property Rights, including Trade in Counterfeit
Goods
Annex 2: Understanding on Rules and Procedures Governing
the Settlement of Disputes
C) Annex 4: Agreement on Trade in Civil Aircraft
Agreement on Government Procurement
International Dairy Arrangement
Arrangement Regarding Bovine Meat
The applicability of this Understanding to Annex 4
Agreements shall be subject to the adoption of a decision by the
Signatories of each Agreement setting out the terms for the
application of the Understanding to the individual agreement,
including any special or additional rules or procedures for
inclusion in Appendix 2, as notified to the Dispute Settlement
Body.
APPENDIX 2
SPECIAL OR ADDITIONAL RULES AND PROCEDURES
CONTAINED IN THE COVERED AGREEMENTS
Agreement Rules and Procedures
Anti-Dumping 17.4 to 17.7
Technical Barriers to Trade 14.2 to 14.4, Annex 2
Subsidies and Countervailing
Measures 4.2 to 4.12, 6.6, 7.2 to
7.10, 8.5, footnote 33,
25.3 to 25.4, 28.6,
Annex V
Customs Valuation 19.3 to 19.5, Annex
II.2(f), 3, 9, 21
Sanitary and Phytosanitary Regulations 36
Textiles 2.14, 2.21, 4.4, 5.2, 5.4,
5.6, 6.9, 6.10, 6.11, 8.1 to
8.12
General Agreement on Trade in Services XXII:3, XXIII:3
Financial Services 4.1
Air Transport Services 4
Minsterial Decision on Services Disputes 1 to 5
The list of rules and procedures in this Appendix includes
provisions where only a part of the provision may be relevant in
this context.
Any special or additional rules or procedures in ANNEX 4
Agreements as determined by the competent bodies of each
Agreement and as notified to the DSB.
APPENDIX 3
WORKING PROCEDURES
l. In its proceedings the panel will follow the relevant
provisions of the Understanding on Rules and Procedures Governing
the Settlement of Disputes. In addition, the following working
procedures will apply.
2. The panel will meet in closed session. The parties to the
dispute, or other interested parties, will be present at the
meetings only when invited by the panel to appear before it.
3. The deliberations of the panel and the documents submitted
to it will be kept confidential. Nothing in this Understanding
shall preclude a party to a dispute from disclosing statements of
its own positions to the public. Members shall treat as
confidential, information submitted by another Member to the
panel which that Member has designated as confidential. Where a
party to a dispute submits a confidential version of its written
submissions to the panel, it shall also, upon request of a
Member, provide a non-confidential summary of the information
contained in its submissions that could be disclosed to the
public.
4. Before the first substantive meeting of the panel with the
parties, both parties to the dispute shall transmit to the panel
written submissions in which they present the facts of the case
and their arguments.
5. At its first substantive meeting with the parties, the panel
will ask the party which has brought the complaint to present its
case. Subsequently, and still at the same meeting, the party
against which the complaint has been brought will be asked to
present its point of view.
6. All third parties which have notified their interest in the
dispute to the DSB shall be invited in writing to present their
views during a session of the first substantive meeting of the
panel set aside for that purpose. All such third parties may be
present during the entirety of this session.
7. Formal rebuttals will be made at a second substantive
meeting of the panel. The party complained against will have the
right to take the floor first to be followed by the complaining
party. Both parties shall submit, prior to that meeting, written
rebuttals to the panel.
8. The panel may at any time put questions to the parties and
ask them for explanations either in the course of a meeting with
the parties or in writing.
9. The parties to the dispute and any third party invited to
present its views in accordance with Section 8 of the
Understanding shall make available to the panel a written version
of their oral statements.
10. In the interest of full transparency, the presentations,
rebuttals and statements referred to in paragraphs 5 to 9 above
will be made in the presence of both 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, will be made available to the other party.
11. Any additional procedures specific to the panel.
12. The panel proposes the following timetable for its work:
(a) Receipt of first written
submissions of the Parties:
(l) complaining Party: _______ 3-6 weeks
(2) Party complained
against: _______ 2-3 weeks
(b) Date, time and place of
first substantive meeting
with the Parties; Third
Party session:_______ 1-2 weeks
(c) Receipt of written rebuttals
of the Parties:_______ 2-3 weeks
(d) Date, time and place of
second substantive meeting
with the Parties:_______ 1-2 weeks
(e) Submission 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) Submission of the interim
report, including the find-
ings and conclusions, to
the Parties:_______ 2-4 weeks
(h) Deadline for Party to request
review of part(s) of report: _______ 1 week
(i) Period of review by panel,
including possible additional
meeting with Parties:_______ 2 weeks
(j) Submission of final report
to Parties to dispute: _______ 2 weeks
(k) Circulation of the final report
to the Members:_______ 3 weeks
The above calendar may be changed in the light of unforeseen
developments. Additional meetings with the Parties will be
scheduled if required.
APPENDIX 4
EXPERT REVIEW GROUPS
The following rules and procedures shall apply to expert
review groups established in accordance with the provisions of
Article 13.2.
1. Expert review groups are under the panel's authority. Their
terms of reference and detailed working procedures shall be
decided by the panel, and they shall report to the panel.
2. Participation in expert review groups shall be restricted to
persons of professional standing and experience in the field in
question.
3. Citizens of parties to the dispute shall not serve on an
expert review group without the joint agreement of the parties to
the dispute, except in exceptional circumstances when the panel
considers that the need for specialized scientific expertise
cannot be fulfilled otherwise. Government officials of parties to
the dispute shall not serve on an expert review group. Members
of expert review groups shall serve in their individual
capacities and not as government representatives, nor as
representatives of any organization. Governments or
organizations shall therefore not give them instructions with
regard to matters before an expert review group.
4. Expert review groups may consult and seek information and
technical advice from any source they deem appropriate. Before
an expert review group seeks such information or advice from a
source within the jurisdiction of a Member, it shall inform the
government of that Member. Any Member shall respond promptly and
fully to any request by an expert review group for such
information as the expert review group considers necessary and
appropriate.
5. The parties to a dispute shall have access to all relevant
information provided to an expert review group, unless it is of
a confidential nature. Confidential information provided to the
expert review group shall not be released without formal
authorization from the government, organization or person
providing the information. Where such information is requested
from the expert review group but release of such information by
the expert review group is not authorized, a non-confidential
summary of the information will be provided by the government,
organization or person supplying the information.
6. The expert review group shall submit a draft report to the
parties to the dispute with a view to obtaining their comments,
and taking them into account, as appropriate, in the final
report, which shall also be circulated to the parties to the
dispute when it is submitted to the panel. The final report of
the expert review group shall be advisory only.