WTO Dispute Settlement Mechanism(3)/刘成伟

Chapter Ⅲ
Initiation of Panel Procedures
OUTLINE
Section One   Role of Consultations: Art. 4
I   The Importance of Consultations
II  Issues Concerning the “adequacy” of Consultations
Section Two   Establishment of Panels: Art. 6.2
I    Introduction
II   Indication of Consultations Process
III  Identification of “the specific measures at issue”
IV  Provision of “a brief summary of the legal basis of the complaint”
V   Concluding Remarks
Section Three  Terms of Reference of Panels: Art. 7
I    Introduction
II   Effect of Consultations on Terms of Reference of Panels
III  The “matter referred to the DSB”
Section Four  The Mandate of Compliance Panels: Art. 21.5
I    Introduction
II   Clarification of “measures taken to comply”
III  Perspective of Review under Art.21.5
IV  Examination of the New Measure in Its Totality and in Its Application
Section Five  Third Party Rights : Art. 10
I    Introduction
II   Generic Third Party Rights: Interpretation of Art. 10.3
III  Extended Third Party Rights: Exercise of Panels’ Discretion
IV  Summary and Conclusions
Section One
Role of Consultations: Art. 4
The procedures for consultations under the WTO, significantly different from the procedures for good offices, conciliation or mediation as prescribed in Art. 5 of the DSU which remains voluntary options if the parties to the dispute so agree, remains a mandatory first step in the dispute settlement process as embodied with text of Art. 4 of the DSU. However, as to be shown below, there is something to be clarified so as to understand appropriately the role of consultations under the WTO dispute settlement mechanism.
I  The Importance of Consultations
The practice of GATT contracting parties in regularly holding consultations is testimony to the important role of consultations in dispute settlement. Art. 4.1 of the DSU recognizes this practice and further provides that: “Members affirm their resolve to strengthen and improve the effectiveness of the consultation procedures employed by Members.” A number of reports made by panels or by the Appellate Body under the WTO have recognized the value of consultations within the dispute settlement process.
As noted by a panel, Members’ duty to consult concerns a matter with utmost seriousness: “Compliance with the fundamental obligation of WTO Members to enter into consultations where a request is made under the DSU is vital to the operation of the dispute settlement system. Article 4.2 of the DSU provides that ‘[e]ach 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 any covered agreement taken within the territory of the former’. Moreover, pursuant to Article 4.6 of the DSU, consultations are ‘without prejudice to the rights of any Member in any further proceedings’. In our view, these provisions make clear that Members' duty to consult is absolute, and is not susceptible to the prior imposition of any terms and conditions by a Member.” 1
Another panel addresses the essence of consultations, and they rule there that: “Indeed, in our view, the very essence of consultations is to enable the parties gather correct and relevant information, for purposes of assisting them in arriving at a mutually agreed solution, or failing which, to assist them in presenting accurate information to the panel.”2
The Appellate Body confirms panels’ rulings in this respect. For example, the Appellate Body stresses those benefits afforded by consultations to the dispute settlement system in Mexico-HFCS（DS132）（21.5）as: “[…] Through consultations, parties exchange information, assess the strengths and weaknesses of their respective cases, narrow the scope of the differences between them and, in many cases, reach a mutually agreed solution in accordance with the explicit preference expressed in Article 3.7 of the DSU. Moreover, even where no such agreed solution is reached, consultations provide the parties an opportunity to define and delimit the scope of the dispute between them. Clearly, consultations afford many benefits to complaining and responding parties, as well as to third parties and to the dispute settlement system as a whole.”3
II  Issues Concerning the “adequacy” of Consultations
As noted above, the procedures for consultations remain a mandatory first step in the dispute settlement process under the WTO. However, does it mean that there is a requirement for the adequacy of consultations before initiating a panel proceeding?
With regard to this issue, on the one hand, the Panel on Alcoholic Beverages (DS75/DS84) finds that, “the WTO jurisprudence so far has not recognized any concept of ‘adequacy’ of consultations”, the Panel Report reads in pertinent part:4
“In our view, the WTO jurisprudence so far has not recognized any concept of ‘adequacy’ of consultations. The only requirement under the DSU is that consultations were in fact held, or were at least requested, and that a period of sixty days has elapsed from the time consultations were requested to the time a request for a panel was made. What takes place in those consultations is not the concern of a panel. The point was put clearly by the Panel in Bananas III, where it was stated:
‘Consultations are […] a matter reserved for the parties. The DSB is not involved; no panel is involved; and the consultations are held in the absence of the Secretariat. While a mutually agreed solution is to be preferred, in some cases it is not possible for parties to agree upon one. In those cases, it is our view that the function of a panel is only to ascertain that the consultations, if required, were in fact held. […]’
We do not wish to imply that we consider consultations unimportant. Quite the contrary, consultations are a critical and integral part of the DSU. But, we have no mandate to investigate the adequacy of the consultation process that took place between the parties and we decline to do so in the present case.”
On the other hand, the Appellate Body in Mexico-HFCS（DS132）（21.5）rules that, “as a general matter, consultations are a prerequisite to panel proceedings. However, this general proposition is subject to certain limitations.” The Appellate Body Report reads there:5
    “Article 4 of the DSU sets forth a number of other provisions with respect to consultations. We recall that, in our Report in Brazil - Aircraft, we observed that:
Articles 4 and 6 of the DSU, as well as paragraphs 1 to 4 of Article 4 of the SCM Agreement, set forth a process by which a complaining party must request consultations, and consultations must be held, before a matter may be referred to the DSB for the establishment of a panel.
The general process that we described in that case also applies in disputes brought under other covered agreements. Thus, as a general matter, consultations are a prerequisite to panel proceedings. However, this general proposition is subject to certain limitations. For example, Article 4.3 of the DSU provides:
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 10 days after the date of its receipt and shall enter into consultations in good faith within a period of no more than 30 days after the date of receipt of the request, with a view to reaching a mutually satisfactory solution. If the Member does not respond within 10 days after the date of receipt of the request, or does not enter into consultations within a period of no more than 30 days, or a period otherwise mutually agreed, after the date of receipt of the request, then the Member that requested the holding of consultations may proceed directly to request the establishment of a panel.
Article 4.3 of the DSU relates the responding party's conduct towards consultations to the complaining party's right to request the establishment of a panel. When the responding party does not respond to a request for consultations, or declines to enter into consultations, the complaining party may dispense with consultations and proceed to request the establishment of a panel. In such a case, the responding party, by its own conduct, relinquishes the potential benefits that could be derived from those consultations.
We also note that Article 4.7 of the DSU provides:
If the consultations fail to settle a dispute within 60 days after the date of receipt of the request for consultations, the complaining party may request the establishment of a panel. The complaining party may request a panel during the 60-day period if the consulting parties jointly consider that consultations have failed to settle the dispute.
Article 4.7 also relates the conduct of the responding party concerning consultations to the complaining party's right to request the establishment of a panel. This provision states that the responding party may agree with the complaining party to forgo the potential benefits that continued pursuit of consultations might bring. Thus, Article 4.7 contemplates that a panel may be validly established notwithstanding the shortened period for consultations, as long as the parties agree. Article 4.7 does not, however, specify any particular form that the agreement between the parties must take. ”
    To sum up, as to be discussed in more detail in next section, “the lack of prior consultations is not a defect that, by its very nature, deprives a panel of its authority to deal with and dispose of a matter”.6 However, according to Art. 1.2 of the DSU, this general proposition cannot deny the application of special or additional rules and procedures as are identified in Appendix 2 to the DSU. For example, the Appellate Body rules in Brazil-Airport（DS46）that, “Articles 4 and 6 of the DSU, as well as paragraphs 1 to 4 of Article 4 of the SCM Agreement, set forth a process by which a complaining party must request consultations, and consultations must be held, before a matter may be referred to the DSB for the establishment of a panel”.7
In short, given that Art. 6.1 of the DSU essentially requires the DSB to establish a panel automatically upon request of a party, a panel cannot rely upon the DSB to ascertain that requisite consultations have been held and to establish a panel only in those cases, unless otherwise spelled out expressly in the covered agreements, e.g. Art. 4 of the SCM Agreement.
【NOTE】
1.See, WT/DS22/R/287.
2.See, WT/DS75/R, WT/DS84/R/10.23.
3.See, WT/DS132/AB/RW/54.
4.See, WT/DS75/R; WT/DS84/R/10.19.
5.See, WT/DS132/AB/RW/57-61.
6.See, WT/DS132/AB/RW/64.
7.See, WT/DS46/AB/R/131.
Section Two
Establishment of Panels: Art. 6.2
I  Introduction
    There has often been divergence in many particular cases as to the sufficient specificity of the request for the establishment of a panel. As is the issue what we will get down to next, and in this respect what bears the most significance is the text of Art. 6.2 of the DSU, which reads as:
    “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.”
As noted in Chapter I, the quasi-automatic adoption of dispute settlement reports is a new crucial feature of the WTO dispute settlement mechanism. In practice, there is few, if no, occasions denying the establishment of a panel, because according to Art. 6.1 of the DSU, “f the complaining party so requests, a panel shall be established”; and it’s hardly the case that “the DSB decides by consensus not to establish a panel”.
As ruled by the Appellate Body in EC-Bananas (DS27), “a panel request will usually be approved automatically at the DSB meeting following the meeting at which the request first appears on the DSB's agenda”. For this reason, the Appellate Body rules in the same case that, “[a]s a panel request is normally not subjected to detailed scrutiny by the DSB, it is incumbent upon a panel to examine the request for the establishment of the panel very carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU. It is important that a panel request be sufficiently precise for two reasons: first, it often forms the basis for the terms of reference of the panel pursuant to Article 7 of the DSU; and, second, it informs the defending party and the third parties of the legal basis of the complaint”. 1
Furthermore, as to the importance for the panel request to be sufficiently precise to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU, the Panel on Turkey-Textile and Clothing (DS34) rules that, “… t is important that a panel request, which defines the terms of reference, meets this criterion so as to inform the defending party and potential third parties both of the measures at issue, including the products they cover, and of the legal basis of the complaint. This is necessary to ensure due process and the ability of the defendant to defend itself”. 2 And “[t]his requirement of due process is fundamental to ensuring a fair and orderly conduct of dispute settlement proceedings”.3
    Most importantly, as noted by the Appellate Body in EC-Bananas (DS27), “f a claim is not specified in the request for the establishment of a panel, then a faulty request cannot be subsequently ‘cured’ by a complaining party's argumentation in its first written submission to the panel or in any other submission or statement made later in the panel proceeding”. 4
However, as ruled by the Appellate Body in EC-Bananas (DS27), Art. 6.2 of the DSU requires that “the claims, but not the arguments”, must all be specified sufficiently in the request for the establishment of a panel. With this regard, the Appellate Body rules that, “… n our view, there is a significant difference between the claims identified in the request for the establishment of a panel, which establish the panel's terms of reference under Article 7 of the DSU, and the arguments supporting those claims, which are set out and progressively clarified in the first written submissions, the rebuttal submissions and the first and second panel meetings with the parties”.5 And the Panel in Thailand-Iron and H-Beams (DS122) rules further that, “Article 6.2 DSU does not relate directly to the sufficiency of the subsequent written and oral submissions of the parties in the course of the proceedings, which may develop the arguments in support of the claims set out in the panel request. Nor does it determine whether or not the complaining party will manage to establish a prima facie case of violation of an obligation under a covered agreement in the actual course of the panel proceedings”.6
Now we turn on to the connotation of Art. 6.2. In this connection, the Panel in Japan-Film（DS44）rules that, “we examine, as appropriate, (i) the ordinary meaning of the terms of Article 6.2; (ii) the context and the object and purpose of Article 6.2; and (iii) past practice under Article 6.2 and its predecessor provision”.7 Specifically, as ruled by the Appellate Body in Korea-Dairy Products（DS98）, “[w]hen parsed into its constituent parts, Article 6.2 may be seen to impose the following requirements. The request must: (i) be in writing; (ii) indicate whether consultations were held; (iii) identify the specific measures at issue; and (iv) provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly.”8
And in these four requirements, it is only element (i), that the request “be in writing” has hardly been disagreed; and as to be discussed in more detail below, the other three elements (ii)- (iv) have often been the subjects divergent between participants on many occasions.
II  Indication of Consultations Process
In its second element, Art. 6.2 of the DSU requires that the panel request must “indicate whether consultations were held”. In this connection, the Appellate Body rules in Mexico-HFCS（DS132）（21.5）that:9
“[…] The phrase ‘whether consultations were held’ shows that this requirement in Article 6.2 may be satisfied by an express statement that no consultations were held. In other words, Article 6.2 also envisages the possibility that a panel may be validly established without being preceded by consultations.
Thus, the DSU explicitly recognizes circumstances where the absence of consultations would not deprive the panel of its authority to consider the matter referred to it by the DSB. In our view, it follows that where the responding party does not object, explicitly and in a timely manner, to the failure of the complaining party to request or engage in consultations, the responding party may be deemed to have consented to the lack of consultations and, thereby, to have relinquished whatever right to consult it may have had. ”
As found by the Appellate Body, “n assessing the importance of the obligation ‘to indicate whether consultations were held’, we observe that the requirement will be satisfied by the inclusion, in the request for establishment of a panel, of a statement as to whether consultations occurred or not. The purpose of the requirement seems to be primarily informational - to inform the DSB and Members as to whether consultations took place. We also recall that the DSU expressly contemplates that, in certain circumstances, a panel can deal with and dispose of the matter referred to it even if no consultations took place. Similarly, the authority of the panel cannot be invalidated by the absence, in the request for establishment of the panel, of an indication ‘whether consultations were held’. Indeed, it would be curious if the requirement in Article 6.2 to inform the DSB whether consultations were held was accorded more importance in the dispute settlement process than the requirement actually to hold those consultations.”10
As a general rule, “it may be true that a request for establishment will be more specific than a request for consultations. However, we consider that Article 6.2 of the DSU is concerned exclusively with a party's request for establishment. Thus, the consistency of a party's request for establishment with Article 6.2 of the DSU should be judged exclusively in light of the specificity of the request for establishment, and not in light of the specificity of the party's earlier request for consultations”. 11
III  Identification of “the specific measures at issue”
With regard to the third requirements for requests for establishment of a panel, the question to be discussed below is whether the ordinary meaning of the terms of Art. 6.2 of the DSU, i.e., that “the specific measures at issue” be identified in the panel request, can be met if a “measure” or/and the products affected by such a measure is not explicitly described in the request. In this respect, the Panel Report on Japan-Film (DS44) states that:12
“[…] To fall within the terms of Article 6.2, it seems clear that a ‘measure’ not explicitly described in a panel request must have a clear relationship to a ‘measure’ that is specifically described therein, so that it can be said to be ‘included’ in the specified ‘measure’. In our view, the requirements of Article 6.2 would be met in the case of a ‘measure’ that is subsidiary or so closely related to a ‘measure’ specifically identified, that the responding party can reasonably be found to have received adequate notice of the scope of the claims asserted by the complaining party. The two key elements -- close relationship and notice -- are inter-related: only if a ‘measure’ is subsidiary or closely related to a specifically identified ‘measure’ will notice be adequate. For example, we consider that where a basic framework law dealing with a narrow subject matter that provides for implementing ‘measures’ is specified in a panel request, implementing ‘measures’ might be considered in appropriate circumstances as effectively included in the panel request as well for purposes of Article 6.2. Such circumstances include the case of a basic framework law that specifies the form and circumscribes the possible content and scope of implementing ‘measures’. As explained below, this interpretation of Article 6.2 is consistent with the context and the object and purpose of Article 6.2, as well as past panel practice.
The Bananas III panel found that the object and purpose of Article 6.2's specificity requirement is to ensure clarity of panels' terms of reference, which pursuant to Article 7 of the DSU are typically determined by the panel request, and to inform the respondent and potential third parties of the scope of the complaining party's claims (i.e., the ‘measures’ challenged and the WTO provisions invoked by the complaining party). So long as Article 6.2 is interpreted to require any ‘measure’ challenged to be specified in the panel request or to be subsidiary or closely related to the specified ‘measures’, the object and purpose of Article 6.2 are satisfied.
The proposed interpretation is also consistent with past WTO and GATT panel practice. The Bananas III panel is the only WTO panel to have interpreted the aspect of Article 6.2 at issue in this case, i.e., the definition of the ‘measures’ to be deemed covered by a panel request. In the Bananas III panel request, the ‘basic EC regulation at issue’ had been identified by place and date of publication. In addition, the request referred in general terms to ‘subsequent EC legislation, regulations and administrative measures ... which implement, supplement and amend [the EC banana] regime’. The Bananas III panel found that this reference was sufficient for the specificity requirement of Article 6.2 because the measures that the complainants were contesting were ‘adequately identified’, even though they were not explicitly listed. The Appellate Body agreed that the panel request ‘contains sufficient identification of the measures at issue to fulfil the requirements of Article 6.2’. In our view, ‘measures’ that are subsidiary or closely related to specified ‘measures’ can be found to be ‘adequately identified’ as that concept was applied in the Bananas III case.”
To go further, with respect to the identification of the products affected by such measures, the Appellate Body rules in EC-Computer Equipment (DS62/DS67/DS68) that: “We note that Article 6.2 of the DSU does not explicitly require that the products to which the ‘specific measures at issue’ apply be identified. However, with respect to certain WTO obligations, in order to identify ‘the specific measures at issue’, it may also be necessary to identify the products subject to the measures in dispute.” 13  
However, as ruled by the Panel in Canada-Civilian Aircraft (DS70), “[w]e do not consider that the mere fact that the scope of a measure is identified in the request for establishment by reference to a broad product or industry grouping necessarily renders that request for establishment inconsistent with Article 6.2 of the DSU”. The Panel bases their finding by stating that:14
“[…] We believe that the Appellate Body was of a similar opinion in LAN Equipment, where it shared the US concern that: ‘if the EC arguments on specificity of product definition are accepted, there will inevitably be long, drawn-out procedural battles at the early stage of the panel process in every proceeding. The parties will contest every product definition, and the defending party in each case will seek to exclude all products that the complaining parties may have identified by grouping, but not spelled out in 'sufficient' detail.’
    Although the Appellate Body's remarks were made in the context of a reference to a broad product grouping in the complaining party's request for establishment, we can see no basis for not adopting a similar approach when the request for establishment refers to a broad industry sector, such as the ‘civil aircraft industry’. If a complaining party believes that a measure affects a broad industry sector, in our view that complaining party should be entitled to challenge that measure insofar as it affects the totality of the industry concerned, without having to spell out the individual components of that industry, and without running afoul of Article 6.2 of the DSU.”
    In short, whether the claims are sufficiently precise to “identify the specific measure at issue” under Art. 6.2 of the DSU depends upon whether they satisfy the object and purposes of the requirement of that provision, i.e., whether the respondent and potential third parties are put on sufficient notice as to the parameters of the case it is defending. For this reason, Art. 6.2 should be interpreted to require any “measure” challenged to be specified in the panel request or to be subsidiary or closely related to the specified “measures”. Also, one of the purposes of Art. 6.2 is to ensure clarity of panels' terms of reference. Accordingly, claims based on provisions of GATT or other WTO agreements not mentioned in the panel request should be found to be outside the terms of reference of the panel concerned.”
IV  Provision of “a brief summary of the legal basis of the complaint”
In its fourth requirement, Art. 6.2 demands only a summary - and it may be a brief one - of the legal basis of the complaint; but the summary must, in any event, be one that is “sufficient to present the problem clearly”. It is not enough, in other words, that “the legal basis of the complaint” is summarily identified; the identification must “present the problem clearly”.
In EC-Bananas, with respect to whether the panel request provides, as required, a “brief summary of the legal basis of the complaint sufficient to present the problem clearly”, the Appellate Body rules pertinently that, “we agree with the Panel's conclusion that ‘the request is sufficiently specific to comply with the minimum standards established by the terms of Article 6.2 of the DSU’. We accept the Panel's view that it was sufficient for the Complaining Parties to list the provisions of the specific agreements alleged to have been violated without setting out detailed arguments as to which specific aspects of the measures at issue relate to which specific provisions of those agreements.” 15 However, as noted by the Appellate Body, this is not a litmus test for determining the sufficiency of the statement of the legal basis of the complaint. The Appellate Body in Korea-Dairy Products（DS98）rules in pertinent part:16
    “As the Panel noted, we said in European Communities - Bananas, that: [we] accept the Panel's view that it was sufficient for the Complaining Parties to list the provisions of the specific agreements alleged to have been violated without setting out detailed arguments as to which specific aspects of the measures at issue relate to which specific provisions of those agreements.
It appears to us that the Panel read this portion of our findings in European Communities - Bananas as establishing a litmus test for determining the sufficiency of the statement of the legal basis of the complaint.
The Panel, however, failed to note that in European Communities - Bananas, we went on to say that:
As a panel request is normally not subjected to detailed scrutiny by the DSB, it is incumbent upon a panel to examine the request for the establishment of the panel very carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU. It is important that a panel request be sufficiently precise for two reasons: first, it often forms the basis for the terms of reference of the panel pursuant to Article 7 of the DSU; and, second, it informs the defending party and the third parties of the legal basis of the complaint.
Thus, we did not purport in European Communities - Bananas to establish the mere listing of the articles of an agreement alleged to have been breached as a standard of precision, observance of which would always constitute sufficient compliance with the requirements of Article 6.2, in each and every case, without regard to the particular circumstances of such cases. If we were in fact attempting to construct such a rule in that case, there would have been little point to our enjoining panels to examine a request for a panel ‘very carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU’. Close scrutiny of what we in fact said in European Communities - Bananas shows that we, firstly, restated the reasons why precision is necessary in a request for a panel; secondly, we stressed that claims, not detailed arguments, are what need to be set out with sufficient clarity; and thirdly, we agreed with the conclusion of the panel that, in that case, the listing of the articles of the agreements claimed to have been violated satisfied the minimum requirements of Article 6.2 of the DSU. In view of all the circumstances surrounding that case, we concurred with the panel that the European Communities had not been misled as to what claims were in fact being asserted against it as respondent.
Identification of the treaty provisions claimed to have been violated by the respondent is always necessary both for purposes of defining the terms of reference of a panel and for informing the respondent and the third parties of the claims made by the complainant; such identification is a minimum prerequisite if the legal basis of the complaint is to be presented at all. But it may not always be enough. There may be situations where the simple listing of the articles of the agreement or agreements involved may, in the light of attendant circumstances, suffice to meet the standard of clarity in the statement of the legal basis of the complaint. However, there may also be situations in which the circumstances are such that the mere listing of treaty articles would not satisfy the standard of Article 6.2. This may be the case, for instance, where the articles listed establish not one single, distinct obligation, but rather multiple obligations. In such a situation, the listing of articles of an agreement, in and of itself, may fall short of the standard of Article 6.2.”
    In sum, as discussed in more detail in EC-Bed Linen（DS141）:“…First, the issue is to be resolved on a case-by-case basis. Second, the panel must examine the request for the establishment of the panel very carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU. Third, the panel should take into account the nature of the particular provision at issue - i.e., where the Articles listed establish not one single, distinct obligation, but rather multiple obligations, the mere listing of treaty Articles may not satisfy the standard of Article 6.2. Fourth, the panel should take into account whether the ability of the respondent to defend itself was prejudiced, given the actual course of the panel proceedings, by the fact that the panel request simply listed the provisions claimed to have been violated. It seems that even if the panel request is insufficient on its face, an allegation that the requirements of Article 6.2 of the DSU are not met will not prevail where no prejudice is established.”17
Importantly, “[t]he fundamental issue in assessing claims of prejudice is whether a defending party was made aware of the claims presented by the complaining party, sufficient to allow it to defend itself”.18 “Article 6.2 of the DSU calls for sufficient clarity with respect to the legal basis of the complaint, that is, with respect to the ‘claims’ that are being asserted by the complaining party. A defending party is entitled to know what case it has to answer, and what violations have been alleged so that it can begin preparing its defence. Likewise, those Members of the WTO who intend to participate as third parties in panel proceedings must be informed of the legal basis of the complaint. This requirement of due process is fundamental to ensuring a fair and orderly conduct of dispute settlement proceedings.”19
On the one hand, to fall within the “minimum standards” established by Art. 6.2 of the DSU, it is sufficient for the complaining parties to list the provisions of the specific agreements alleged to have been violated without setting out detailed arguments as to which specific aspects of the measures at issue relate to which specific provisions of those agreements.
On the other hand, the simple listing of articles of an agreement asserted to have been violated doesn’t meet, always and in every case, the requirements of Art. 6.2 of the DSU. As ruled by the Appellate Body, “we consider that whether the mere listing of the articles claimed to have been violated meets the standard of Article 6.2 must be examined on a case-by-case basis. In resolving that question, we take into account whether the ability of the respondent to defend itself was prejudiced, given the actual course of the panel proceedings, by the fact that the panel request simply listed the provisions claimed to have been violated.”20 “In view of the importance of the request for the establishment of a panel, we encourage complaining parties to be precise in identifying the legal basis of the complaint.”21
V  Concluding Remarks
To end up this section, as ruled by the Panel in Thailand-Iron and H-Beams (DS122):22
“We understand that we must examine the request for the establishment of the panel very carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU. It is important that a panel request be sufficiently precise for two reasons: first, it often forms the basis for the terms of reference of the panel pursuant to Article 7 of the DSU; and, second, it informs the defending party and the third parties of the legal basis of the complaint.
In examining the sufficiency of the panel request under Article 6.2 DSU, we first consider the text of the panel request itself, in light of the nature of the legal provisions in question and any attendant circumstances. Second, we take into account whether the ability of the respondent to defend itself was prejudiced, given the actual course of the panel proceedings, by any alleged lack of specificity in the text of the panel request. […]”
【NOTE】:
1.See, WT/DS27/AB/R/142.
2.See, WT/DS34/R/9.3.
3.See, WT/DS122/AB/R/88.
4.See, WT/DS27/AB/R/143.
5.See, WT/DS27/AB/R/141.
6.See, WT/DS122/R/7.43.
7.See, WT/DS44/R/10.6.
8.See, WT/DS98/AB/R/120.
9.See, WT/DS132/AB/RW/62-63.
10.See, WT/DS132/AB/RW/70.
11.See, WT/DS70/R/9.32.
12.See, WT/DS44/R/10.8-10.10.
13.See, WT/DS62/AB/R; WT/DS67/AB/R; WT/DS68/AB/R/67.
14.See, in detail, WT/DS70/R/9.36-9.37.
15.See, WT/DS27/AB/R/141.
16.See, WT/DS98/AB/R/121-124.
17.See, WT/DS141/R/6.25.
18.See, WT/DS122/AB/R/95.
19.See, WT/DS122/AB/R/88.
20.See, WT/DS98/AB/R/127.
21.See, WT/DS122/AB/R/97.
22.See, WT/DS122/R/7.13-7.14.
Section Three
Terms of Reference of Panels: Art. 7
I  Introduction
Panel's terms of reference are governed by Art. 7 of the DSU which states:
“1. Panels shall have the following terms of reference unless the parties to the dispute agree                 otherwise within 20 days from the establishment of the panel:
‘To examine, in the light of the relevant provisions in (name of the covered agreement(s) cited by the parties to the dispute), the matter referred to the DSB by (name of party) in document ... and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in that/those agreement(s).’
2. Panels shall address the relevant provisions in any covered agreement or agreements cited              by the parties to the dispute.
    3. In establishing a panel, the DSB may authorize its Chairman to draw up the terms of               reference of the panel in consultation with the parties to the dispute, subject to the               provisions of paragraph 1. The terms of reference thus drawn up shall be circulated to all Members.  If other than standard terms of reference are agreed upon, any Member may raise any point relating thereto in the DSB. ”
The fundamental importance of a panel's terms of reference has been stressed on more than one occasion. For example, the Appellate Body rules in Brazil-Coconut（DS22）that, a panel's terms of reference are important for two reasons: “First, terms of reference fulfil an important due process objective -- they give the parties and third parties sufficient information concerning the claims at issue in the dispute in order to allow them an opportunity to respond to the complainant's case. Second, they establish the jurisdiction of the panel by defining the precise claims at issue in the dispute.” 1
However, with regard to the issue of panel’s terms of reference, what we will firstly get down to is the relationship between the terms of reference and the consultation process.
II  Effect of Consultations on Terms of Reference of Panels
Consultations are a crucial and integral part of the DSU and are intended to facilitate a mutually satisfactory settlement of the dispute, consistent with Article 3.7 of the DSU. However, as noted previously, what takes place in those consultations is not the concern of a panel. With regard to the issue discussed here, the Panel in Turkey-Textile and Clothing (DS34) rules that:2
“Firstly, we note that in EC - Bananas III the panel concluded that the private nature of the bilateral consultations means that panels are normally not in a position to evaluate how the consultations process functions, but could only determine whether consultations, if required, did in fact take place. In this case, the parties never consulted, as Turkey declined to do so without the presence of the European Communities.
    In Korea - Taxes on Alcoholic Beverages the Panel concluded that: ‘… the WTO jurisprudence so far has not recognized any concept of “adequacy” of consultations. The only requirement under the DSU is that consultations were in fact held, or were at least requested, and that a period of sixty days has elapsed from the time consultations were requested to the time a request for a panel was made. …’
We concur with this statement. We note also that our terms of reference (our mandate) are determined, not with reference to the request for consultations, or the content of the consultations, but only with reference to the request for the establishment of a panel. Consultations are a crucial and integral part of the DSU and are intended to facilitate a mutually satisfactory settlement of the dispute, consistent with Article 3.7 of the DSU. However, the only function we have as a panel in relation to Turkey's procedural concerns is to ascertain whether consultations were properly requested, in terms of the DSU, that the complainant was ready to consult with the defendant and that the 60-day period has elapsed before the establishment of a panel was requested by the complainant. We consider that India complied with these procedural requirements and therefore we find it necessary to reject Turkey's claim.”
    Another Panel in Brazil-Aircraft (DS46) follows a similar line:3
    “We recall that our terms of reference are based upon Canada's request for establishment of a panel, and not upon Canada's request for consultations. These terms of reference were established by the DSB pursuant to Article 7.1 of the DSU and establish the parameters for our work. Nothing in the text of the DSU or Article 4 of the SCM Agreement provides that the scope of a panel's work is governed by the scope of prior consultations. Nor do we consider that we should seek to somehow imply such a requirement into the WTO Agreement. One purpose of consultations, as set forth in Article 4.3 of the SCM Agreement, is to ‘clarify the facts of the situation’, and it can be expected that information obtained during the course of consultations may enable the complainant to focus the scope of the matter with respect to which it seeks establishment of a panel. Thus, to limit the scope of the panel proceedings to the identical matter with respect to which consultations were held could undermine the effectiveness of the panel process.
[…] We do not believe, however, that either Article 4.7 of the DSU or Article 4.4 of the SCM Agreement requires a precise identity between the matter with respect to which consultations were held and that with respect to which establishment of a panel was requested.”
    This ruling is confirmed by the Appellate Body: “We do not believe, however, that Articles 4 and 6 of the DSU, or paragraphs 1 to 4 of Article 4 of the SCM Agreement, require a precise and exact identity between the specific measures that were the subject of consultations and the specific measures identified in the request for the establishment of a panel.” 4
In short, panel’s terms of reference are determined, not with reference to the request for consultations, or the content of the consultations, but only with reference to the request for the establishment of a panel.
III  The “matter referred to the DSB”
As noted above, panel’s terms of reference are firstly the standard terms of reference provided for in Art. 7.1 of the DSU. Under those terms of reference, panels are required to examine the “matter referred to the DSB” by the complaint in its request for establishment. However, Art. 7 of the DSU itself does not shed any further light on the meaning of the term “matter”.
Nevertheless, when read together with Art. 6.2 of the DSU, the precise meaning of the term “matter” prescribed in Art. 7 of the DSU becomes clear. Art. 6.2 specifies the requirements for a complaining Member to refer the “matter” to the DSB. In order to seek the establishment of a panel to hear its complaint, a Member must make, in writing, a “request for the establishment of a panel”. In addition to being the document which enables the DSB to establish a panel, the panel request is also usually identified in the panel's terms of reference as the document setting out “the matter referred to the DSB”.
For example, the Appellate Body rules in Brazil-Coconut (DS22) that: “We agree, furthermore, with the conclusions expressed by previous panels under the GATT 1947, as well as under the Tokyo Round SCM Code and the Tokyo Round Anti-dumping Code, that the ‘matter’ referred to a panel for consideration consists of the specific claims stated by the parties to the dispute in the relevant documents specified in the terms of reference. We agree with the approach taken in previous adopted panel reports that a matter, which includes the claims composing that matter, does not fall within a panel's terms of reference unless the claims are identified in the documents referred to or contained in the terms of reference.” 5
More explicitly, as observed by the Panel in India-Automotive Sector (DS146/DS175), “n the context of WTO dispute settlement, the notion of ‘matter’, as referred to in Article 7.1 of the DSU, determines the scope of what is submitted, and what can be ruled upon, by a panel. As confirmed by the Appellate Body in the Guatemala - Cement case, the matter referred to the DSB consists of two elements: the specific measures at issue and the legal basis of the complaint (or the claims). This appears to the Panel to be the most appropriate minimal benchmark by which to assess whether the conditions of res judicata could conceivably be met, if such a notion was of relevance.”.6
To sum up, on the one hand, the “matter referred to the DSB” consists of two elements: the specific measures at issue and the legal basis of the complaint. On the other hand, past practice requires that a claim has to be included in the documents referred to, or contained in, the terms of reference in order to form part of the ‘matter’ referred to a panel for consideration. Thus, a claim must be included in the request for establishment of a panel in order to come within terms of reference of panels.
【NOTE】:
1.See, WT/DS22/AB/R/ VI.
2.See, WT/DS34/R/9.22-9.24.
3.See, WT/DS46/R/7.9-7.10.
4.See, WT/DS46/AB/R/132.
5.Supra. note 1.
6.See, WT/DS146/R; WT/DS175/R/7.65.
Section Four
The Mandate of Compliance Panels: Art. 21.5
I  Introduction
In the WTO context, members may initiate a normal panel procedure under Art. 6.2 of the DSU. Furthermore, they may also initiate a compliance panel proceeding under Art. 21.5 of the DSU which reads as:
“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, including wherever possible resort to the original panel. The panel shall circulate its report within 90 days after the date of referral of the matter to it. When the panel considers that it cannot provide its report within this time frame, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will submit its report.”
    In Art. 21.5 panel proceedings, the mandate issue often causes controversy. Against the particular background of Art. 21.5 panel proceedings, “[t]wo benchmarks apply when defining our [panel’s] terms of reference. First, Article 21.5 of the DSU pursuant to which this Panel was established. Second, our [panel’s] specific terms of reference set out in document WT/DS18/15, a document that refers, in turn, to the matter and relevant provisions of the covered agreements referred to by Canada in its request for this Panel (document WT/DS18/14) [the request for the establishment of a panel].”1
Thus, the mandate of a compliance panel is defined by two benchmarks: Art. 21.5; the specific terms of reference set out in the panel request. With regard to the second benchmark, it has been discussed in detail in previous sections; panel’s terms of reference are normally defined in Art. 7 of the DSU, and “the matter referred to the DSB” for purposes of Art. 7 of the DSU is the “matter” identified in the request for establishment of a panel under Art. 6.2 of the DSU. The “matter referred to the DSB”, therefore, consists of two elements: the specific measures at issue and the legal basis of the complaint (or the claims). Therefore, we will focus in this section on the first benchmark, i.e. Art. 21.5 of the DSU, under which the mandate of a panel is to examine the “existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings” of the DSB.
II  Clarification of “measures taken to comply”
“Since Article 21.5 exclusively refers to disagreements as to ‘measures taken to comply’, any other measures fall outside the scope of a compliance panel.”2 And in this case, is there any precise definition of “measures taken to comply” that should apply in all cases?
The Appellate Body rules concerning the mandate of Art. 21.5 panel in Canada-Aircraft (DS70)（21.5）that: “Proceedings under Article 21.5 do not concern just any measure of a Member of the WTO; rather, Article 21.5 proceedings are limited to those ‘measures taken to comply with the recommendations and rulings’ of the DSB. In our view, the phrase ‘measures taken to comply’ refers to measures which have been, or which should be, adopted by a Member to bring about compliance with the recommendations and rulings of the DSB. In principle, a measure which has been ‘taken to comply with the recommendations and rulings’ of the DSB will not be the same measure as the measure which was the subject of the original dispute, so that, in principle, there would be two separate and distinct measures: the original measure which gave rise to the recommendations and rulings of the DSB, and the ‘measures taken to comply’ which are-or should be-adopted to implement those recommendations and rulings.”3
And in this respect, we think the three points below made by the Compliance Panel in the Australia-Salmon (DS18)（21.5）merits attention for an appropriate understanding of “the measures taken to comply”:
Firstly, “we note that an Article 21.5 panel cannot leave it to the full discretion of the implementing Member to decide whether or not a measure is one ‘taken to comply’. If one were to allow that, an implementing Member could simply avoid any scrutiny of certain measures by a compliance panel, even where such measures would be so clearly connected to the panel and Appellate Body reports concerned, both in time and in respect of the subject-matter, that any impartial observer would consider them to be measures ‘taken to comply’.”4
Secondly, “[t]he question of whether a measure is one in the direction of WTO conformity or, on the contrary, maintains the original violation or aggravates it, can, in our view, not determine whether a measure is one ‘taken to comply’. If this were so, one would be faced with an absurd situation: if the implementing Member introduces a ‘better’ measure -- in the direction of WTO conformity -- it would be subject to an expedited Article 21.5 procedure; if it introduces a ‘worse’ measure -- maintaining or aggravating the violation -- it would have a right to a completely new WTO procedure. Our interpretation of ‘measures taken to comply’ is further supported by the practical difficulty of making a distinction between ‘better’ and ‘worse’ measures.”5
Thirdly, “[w]e do not consider that measures taken subsequently to the establishment of an Article 21.5 compliance panel should per force be excluded from its mandate. Even before an original panel such measures were found to fall within the panel's mandate because, in that specific case, the new measures did not alter the substance - only the legal form -- of the original measure that was explicitly mentioned in the request. In compliance panels we are of the view that there may be different and, arguably, even more compelling reasons to examine measures introduced during the proceedings. As noted earlier, compliance is often an ongoing or continuous process and once it has been identified as such in the panel request, as it was in this case, any ‘measures taken to comply’ can be presumed to fall within the panel's mandate, unless a genuine lack of notice can be pointed to. Especially under the first leg of Article 21.5 when it comes to disagreements on the existence of measures taken to comply, one can hardly expect that all such measures - when there is no clarity on their very existence - be explicitly mentioned up-front in the panel request.”6
In sum, Art. 21.5 proceedings involve, in principle, not the original measure, but rather a new and different measure which was not before the original panel. And the subject-matter of these proceedings is determined by two benchmarks: Art. 21.5 of the DSU and panel’s specific terms of reference set out in the request for establishment of a panel that refers, in turn, to the matter and relevant provisions of the covered agreements referred to the DSB.
III  Perspective of Review under Art. 21.5
What discussed above is just one aspect of the mandate of a compliance panel under Art. 21.5 of the DSU. What should panels do in carrying appropriately out the review envisaged under Art. 21.5 of the DSU? In Australia-Salmon (DS18)（21.5）, the Compliance Panel rules, in pertinent part: 7
    “We note that Article 21.5 itself refers to two types of disagreements, namely disagreements as to ‘the existence or consistency with a covered agreement of measures taken to comply with [DSB] recommendations and rulings’. Australia's requests for preliminary rulings pertain to the second type of disagreements, those on the ‘consistency with a covered agreement of measures taken to comply with [DSB] recommendations and rulings’.
    The reference to ‘disagreement as to the […] consistency with a covered agreement’ of certain measures, implies that an Article 21.5 compliance panel can potentially examine the consistency of a measure taken to comply with a DSB recommendation or ruling in the light of any provision of any of the covered agreements. Article 21.5 is not limited to consistency of certain measures with the DSB recommendations and rulings adopted as a result of the original dispute; nor to consistency with those covered agreements or specific provisions thereof that fell within the mandate of the original panel; nor to consistency with specific WTO provisions under which the original panel found violations. If the intention behind this provision of the DSU had been to limit the mandate of Article 21.5 compliance panels in any of these ways, the text would have specified such limitation. The text, however, refers generally to ‘consistency with a covered agreement’. The rationale behind this is obvious: a complainant, after having prevailed in an original dispute, should not have to go through the entire DSU process once again if an implementing Member in seeking to comply with DSB recommendations under a covered agreement is breaching, inadvertently or not, its obligations under other provisions of covered agreements. In such instances an expedited procedure should be available. This procedure is provided for in Article 21.5. It is in line with the fundamental requirement of ‘prompt compliance’ with DSB recommendations and rulings expressed in both Article 3.3 and Article 21.1 of the DSU.
    On that basis, we agree with the Article 21.5 compliance panel in EC - Bananas III (requested by Ecuador) when it stated that ‘there is no suggestion in the text of Article 21.5 that only certain issues of consistency of measures may be considered’ (WT/DS27/RW/ECU, paragraph 6.8).”
In fact, as noted above, Art. 21.5 proceedings involve, in principle, not the original measure, but rather a new and different measure which was not before the original panel. “Accordingly, in carrying out its review under Article 21.5 of the DSU, a panel is not confined to examining the ‘measures taken to comply’ from the perspective of the claims, arguments and factual circumstances that related to the measure that was the subject of the original proceedings. Although these may have some relevance in proceedings under Article 21.5 of the DSU, Article 21.5 proceedings involve, in principle, not the original measure, but rather a new and different measure which was not before the original panel. In addition, the relevant facts bearing upon the ‘measure taken to comply’ may be different from the relevant facts relating to the measure at issue in the original proceedings. It is natural, therefore, that the claims, arguments and factual circumstances which are pertinent to the ‘measure taken to comply’ will not, necessarily, be the same as those which were pertinent in the original dispute. Indeed, the utility of the review envisaged under Article 21.5 of the DSU would be seriously undermined if a panel were restricted to examining the new measure from the perspective of the claims, arguments and factual circumstances that related to the original measure, because an Article 21.5 panel would then be unable to examine fully the ‘consistency with a covered agreement of the measures taken to comply’, as required by Article 21.5 of the DSU.”8
IV  Examination of the New Measure in Its Totality and in Its Application
While during the appeal in US-Shrimp (DS58) (21.5), Malaysia argues that the Panel improperly limited its analysis to the recommendations and rulings of the DSB, and thus failed to fulfill its mandate under Art. 21.5 of the DSU because it did not examine the consistency of the United States implementing measure with the relevant provisions of the GATT 1994. Malaysia argues as well that the Art. 21.5 Panel erroneously based its analysis entirely on the Appellate Body’s Report in the original proceedings. The Appellate Body observes that “Malaysia's appeal on this point goes to the heart of what a panel is required to do in proceedings under Article 21.5 of the DSU”,9 and they continue to rule that: 10
“As we ruled in our Report in Canada - Aircraft (21.5), panel proceedings pursuant to Article 21.5 of the DSU involve, in principle, not the original measure, but a new and different measure that was not before the original panel. Therefore, ‘in carrying out its review under Article 21.5 of the DSU, a panel is not confined to examining the 'measures taken to comply' from the perspective of the claims, arguments and factual circumstances that related to the measure that was the subject of the original proceedings’.
When the issue concerns the consistency of a new measure ‘taken to comply’, the task of a panel in a matter referred to it by the DSB for an Article 21.5 proceeding is to consider that new measure in its totality. The fulfilment of this task requires that a panel consider both the measure itself and the measure's application. As the title of Article 21 makes clear, the task of panels under Article 21.5 forms part of the process of the ‘Surveillance of Implementation of the Recommendations and Rulings’ of the DSB. Toward that end, the task of a panel under Article 21.5 is to examine the ‘consistency with a covered agreement of measures taken to comply with the recommendations and rulings’ of the DSB. That task is circumscribed by the specific claims made by the complainant when the matter is referred by the DSB for an Article 21.5 proceeding. It is not part of the task of a panel under Article 21.5 to address a claim that has not been made.
Malaysia relies in this appeal on our ruling in Canada - Aircraft (21.5). We understand Malaysia to argue, based in part on our ruling in Canada - Aircraft (21.5), that the Panel in this case had a duty to review the totality of the United States measure, and to assess it for its consistency with the relevant provisions of the GATT 1994. That is indeed a panel's task under Article 21.5 of the DSU. Yet, as we have said, it is not part of a panel's task to go beyond the particular claims that have been made with respect to the consistency of a new measure with a covered agreement when a matter is referred to it by the DSB for an Article 21.5 proceeding. Thus, it would not have been appropriate in this case for the Panel to address a claim that was not made by Malaysia when requesting that this matter be referred by the DSB for an Article 21.5 proceeding.
With respect to a claim that has been made when a matter is referred by the DSB for an Article 21.5 proceeding, Malaysia seems to suggest as well that a panel must re-examine, for WTO-consistency, even those aspects of a new measure that were part of a previous measure that was the subject of a dispute, and were found by the Appellate Body to be WTO - consistent in that dispute, and that remain unchanged as part of the new measure.
In considering this argument, we examine what the Panel did in this case in fulfilling its task under the DSU. As we have said, the Panel was required to review the new measure in its totality and in its application when examining the matter referred by the DSB for the Article 21.5 proceeding. In this case, the question whether it did or did not fulfil this requirement arises from the treatment by the Panel of a particular part of the new measure that was also part of the original measure in the original proceedings.
We wish to recall that panel proceedings under Article 21.5 of the DSU are, as the title of Article 21 states, part of the process of the ‘Surveillance of Implementation of Recommendations and Rulings’ of the DSB. This includes Appellate Body Reports. To be sure, the right of WTO Members to have recourse to the DSU, including under Article 21.5, must be respected. Even so, it must also be kept in mind that Article 17.14 of the DSU provides not only that Reports of the Appellate Body ‘shall be’ adopted by the DSB, by consensus, but also that such Reports ‘shall be … unconditionally accepted by the parties to the dispute. …’ Thus, Appellate Body Reports that are adopted by the DSB are, as Article 17.14 provides, ‘… unconditionally accepted by the parties to the dispute’, and, therefore, must be treated by the parties to a particular dispute as a final resolution to that dispute. In this regard, we recall, too, that Article 3.3 of the DSU states that the ‘prompt settlement’ of disputes ‘is essential to the effective functioning of the WTO’.
Therefore, so far as the examination of the measure at issue in this appeal is concerned, the task of the Panel … as part of that new measure, was limited to examining its application….”
    In sum, as ruled by the Appellate Body in Canada-Aircraft (DS70)（21.5）, “the examination of ‘measures taken to comply’ is based on the relevant facts proved, by the complainant, to the Article 21.5 panel, during the panel proceedings.”11 And the panel is required to review the new measure in its totality and in its application when examining the matter referred by the DSB for the Art. 21.5 proceeding. Even so, it must also be kept in mind that, it is not part of a panel's task to go beyond the particular claims that have been made with respect to the consistency of a new measure with a covered agreement when a matter is referred to it by the DSB for an Art. 21.5 proceeding. Toward that end, the task is circumscribed by the specific claims made by the complainant when the matter is referred by the DSB for an Art. 21.5 proceeding.
【NOTE】:
1.See, WT/DS18/RW/7.10/7.
2.See, WT/DS18/RW/7.10/21.
3.See, WT/DS70/AB/RW/36.
4.See, WT/DS18/RW/7.10/22.
5.See, WT/DS18/RW/7.10/23.
6.See, WT/DS18/RW/7.10/28.
7.See, WT/DS18/RW/7.10/8-10.
8.See, WT/DS70/AB/RW/41.
9.See, WT/DS58/AB/RW/84.
10.See, WT/DS58/AB/RW/86-90; 97-98.
11.See, WT/DS70/AB/RW/38.
Section Five
Third Party Rights : Art. 10
I  Introduction
The object and purpose of this contribution is to survey the WTO practice in the matter of third party intervention. The focus is directed towards an examination of the rights to which WTO members are entitled, where they are not named as parties to a particular WTO dispute but nevertheless retaining an interest in the dispute and therefore intervene as third parties. However, according to Art. 17.4 of the DSU, “[o]nly parties to the dispute, not third parties, may appeal a panel report”, we therefore focus on the intervention of third parties in panel procedures rather than in appellate review, except to be mindful that the same Article also provides that, “[t]hird parties which have notified the DSB of a substantial interest in the matter pursuant to paragraph 2 of Article 10 may make written submissions to, and be given an opportunity to be heard by, the Appellate Body”.
    The rules relating to the participation of third parties in panel proceedings are set out in Art. 10 of the DSU, and, particularly relating closely to third party rights, paragraphs 2 and 3 thereof, and in paragraph 6 of Appendix 3 to the DSU:
Article 10: Third Parties
    “1. The interests of the parties to a dispute and those of other Members under a covered agreement at issue in the dispute shall be fully taken into account during the panel process.
    2. Any Member having a substantial interest in a matter before a panel and having notified its interest to the DSB (referred to in this Understanding as a ‘third party’) shall have an opportunity to be heard by the panel and to make written submissions to the panel. These submissions shall also be given to the parties to the dispute and shall be reflected in the panel report.
    3. Third parties shall receive the submissions of the parties to the dispute to the first meeting of the panel.
4. If a third party considers that a measure already the subject of a panel proceeding nullifies or impairs benefits accruing to it under any covered agreement, that Member may have recourse to normal dispute settlement procedures under this Understanding. Such a dispute shall be referred to the original panel wherever possible.”
    Appendix 3 to the DSU: WORKING PROCEDURES
    “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.”
Under the DSU, as it currently stands, third parties are only entitled to the participatory rights provided for in Arts. 10.2 and 10.3 and paragraph 6 of Appendix 3. As is to be discussed in more detail below.
II  Generic Third Party Rights: Interpretation of Art. 10.3
Art. 10.3 of the DSU explicitly limits the right of third parties to receive only the parties' submissions “to the first meeting”.
In normal panel proceedings, two substantive meetings with the parties are held. The DSU and, in particular, paragraphs 5, 6 and 7 of Appendix 3 to the DSU, contemplate “two distinguishable stages” in a proceeding before a panel. The “first stage” comprises the first written submissions by the parties and the first meeting of the panel, while the “second stage” consists of the second written submissions - or “rebuttal” submissions - and the second meeting with the panel. However, no provision of the DSU explicitly requires panels to hold two meetings with the parties, or to oblige the parties to submit two written submissions. In proceedings under Art. 21.5, which are subject to considerably shorter time-frames than applied under Art. 12.8 of the DSU, panels have adopted the practice of holding a single meeting with the parties, rather than two meetings. At the same time, Art. 21.5 panels uniformly have maintained the practice of requiring parties to file two written submissions, i.e. both first and rebuttal submissions to the single meeting. Due to the expedited nature of Art. 21.5 procedures, it is often disagreed as to whether the third party rights under Art. 10.3 of the DSU have been inappropriately limited by Art. 21.5 panels. We will next get down to some of such practice under Art. 21.5.
    For example, in Canada-Milk and Dairy Products (DS103/DS113)（21.5）, all parties and third parties agree that Art. 10.3 of the DSU remains applicable in the Art. 21.5 proceedings, and requires that “third parties shall receive the submissions of the parties to the dispute to the first meeting of the Panel”. The disagreement relates as to whether the third party rights under Art. 10.3 of the DSU have been inappropriately limited by the Panel when it adopted, in accordance with the practice of previous Art. 21.5 panels and in agreement with the parties to this dispute, the following rule in paragraph 8 of this Panel's Working Procedures: “Third parties shall receive copies of the parties' first written submissions”. In this respect, the Art. 21.5 Panel rules as: 1
“[…] [T]he Panel noted that the text of Article 10.3 is clear and requires this Panel to make available to third parties ‘the submissions of the parties to the dispute to the first meeting of the panel’. In the particular context of Article 21.5, panels which, as in this case, request both parties to submit also their rebuttal submissions prior to the first meeting with the parties, the literal reading of Article10.3 clearly requires to make available to third parties also these rebuttal submissions. Even in the different context of normal Article 12 panel proceedings with two meetings with the parties, nothing in the text of Article 10.3 and in the different context of normal Article 12 panel proceedings justifies ignoring the clear textual requirement of Article 10.3 to enable third parties to participate in the first panel meeting with access to all ‘the submissions’ of the parties made up to this point of the panel process. In the particular context of this Article 21.5 Panel proceeding, the term ‘submissions’ in Article 10.3 of the DSU must therefore include the parties' rebuttal submissions.
In the view of the Panel, only this strict compliance with the unequivocal text of Article 10.3 secures that the interests and rights of third parties are ‘fully taken into account during the panel process’ (Article 10.1) in a manner enabling the Panel to ‘make an objective assessment of the matter before it’ (Article 11.1). In the Panel's view, the object and purpose of Article 10.3 of the DSU is to allow third parties to participate in an informed and, hence, meaningful, manner in a session of the meeting with the parties specifically set aside for that purpose. Third parties can only do so if they have received all the information exchanged between the parties before that session. Otherwise, third parties might find themselves in a situation where their oral statements at the meeting become partially or totally irrelevant or moot in the light of second submissions by the parties to which third parties did not have access. Without access to all the submissions by the parties to the dispute to the first meeting of the panel, uninformed third party submissions could unduly delay panel proceedings and, as rightly emphasised by the EC and supported by Mexico, could prevent the Panel from receiving ‘the benefit of a useful contribution by third parties which could help the Panel to make the objective assessment that it is required to make under Article 11 of the DSU’.
The Panel therefore concludes that nothing in the DSU authorises this Panel to restrict the right of third parties to only receive the ‘first’ submissions made on 4 May 2001, and to withhold from the third parties the rebuttal submissions due for 25 May 2001 (i.e. before the first meeting of the panel on 29-31 May 2001). The Panel decides that, pursuant to Article 10.3 of the DSU, third parties have the right to receive all written submissions ‘to the first meeting’, including rebuttal submissions made before that first meeting. Accordingly, the Panel replaces the current sentence in paragraph 8 of its Working Procedures (‘Third parties shall receive copies of the parties' first written submissions’) by the text in Article 10.3 of the DSU: ‘Third parties shall receive the submissions of the parties to the dispute to the first meeting of the panel’. The Panel notes that, pursuant to Article 12.1 of the DSU and paragraph 14 of its Working Procedures, the Panel can amend the Working Procedures after consulting the parties. The Panel considers that, having invited and received comments by the parties regarding the European Communities' request, it has duly consulted with them.”
While in US-Tax Treatment (DS108), during the recourse of Art. 21.5 of the DSU, the Panel issued a decision to the parties refusing the request of the European Communities and stating that: “… we do not consider that Article 10.3 DSU requires that third parties receive all pre-meeting submissions of the parties (including rebuttal submissions) in the context of an accelerated proceeding under Article 21.5 DSU that involves only one meeting of the parties and third parties with the panel.”
The European Communities appeals this interpretive preliminary ruling by the Panel. In the view of the European Communities, this ruling conflicts with Art 10.3 of the DSU and does not respect the rights afforded to third parties under the DSU. According to the European Communities, although panels have a certain discretion to establish their own working procedures, they may not derogate from binding provisions of the DSU, including the requirement in Art. 10.3 of the DSU that “third parties shall receive the submissions of the parties to the dispute to the first meeting of the panel”. In the view of the European Communities, this requirement means that third parties are entitled to receive all written submissions made prior to the first meeting of the panel - even if, as in many proceedings under Art. 21.5 of the DSU, there is only one meeting with the panel. As to this appeal, the Appellate Body rules as: 2
“In this appeal, we must determine whether, in refusing to require that the third parties be given access to the second, ‘rebuttal’, submissions filed prior to the sole substantive meeting with the Panel, the Panel acted inconsistently with any provision of the DSU.
    In respect of the provisions of the DSU governing third party rights, we have already observed that, as the DSU currently stands, the rights of third parties in panel proceedings are limited to the rights granted under Article 10 and Appendix 3 to the DSU. Beyond those minimum guarantees, panels enjoy a discretion to grant additional participatory rights to third parties in particular cases, as long as such ‘enhanced’ rights are consistent with the provisions of the DSU and the principles of due process. However, panels have no discretion to circumscribe the rights guaranteed to third parties by the provisions of the DSU.
    In this appeal, the European Communities alleges that the Working Procedures adopted by the Panel are inconsistent with the rights afforded to third parties pursuant to Article 10.3 of the DSU, which provides: ‘Third parties shall receive the submissions of the parties to the dispute to the first meeting of the panel.’
    Article 10.3 of the DSU is couched in mandatory language. By its terms, third parties ‘shall’ receive ‘the submissions of the parties to the first meeting of the panels’.  Article 10.3 does not say that third parties shall receive ‘the first submissions’ of the parties, but rather that they shall receive ‘the submissions’ of the parties. The number of submissions that third parties are entitled to receive is not stated. Rather, Article 10.3 defines the submissions that third parties are entitled to receive by reference to a specific step in the proceedings - the first meeting of the panel. It follows, in our view, that, under this provision, third parties must be given all of the submissions that have been made by the parties to the panel up to the first meeting of the panel, irrespective of the number of such submissions which are made, including any rebuttal submissions filed in advance of the first meeting.
    The Panel, however, reasoned that the use of the word ‘first’ in Article 10.3 ‘presupposes a context where there is more than one meeting of a Panel’. The Panel concluded, from this ‘presupposition’, that in proceedings involving a single panel meeting, Article 10.3 ‘must be understood as limiting third party rights in these proceedings to access to the first written submissions only, and as not including access to the written rebuttals’.  
    In our view, the interpretation of Article 10.3 of the DSU must start from the express wording of the provision. We have noted that the text of Article 10.3 does not limit the number of submissions which third parties may receive prior to the ‘first meeting’. We do not see any reason to ‘presuppose’ that such a limitation applies in cases where the ‘first meeting’ with the Panel proves to be the only meeting. The DSU allows panels the flexibility, in determining their procedures, to request more than one submission in advance of the first meeting, and the DSU also allows for the possibility that panels may, ultimately, hold only one meeting. The text of Article 10.3 applies the same rule in each case - third parties are entitled to receive the submissions to the first meeting.
    We read the reference to the ‘first meeting’ as reflecting the flexibility that exists in panel proceedings under the DSU. Thus, in any proceedings, even if only one meeting with the parties is initially scheduled, it cannot be excluded that a second will not be held later. Panels have the discretion to request such an additional meeting with the parties, and the parties can also request such a meeting with the panel at the stage of interim review. The wording of Article 10.3 provides for this flexibility by referring generically to the ‘first meeting’, which may be one of a series of meetings or may be the only meeting.
    Our interpretation of Article 10.3 is also consistent with the context of that provision. Article 10.1 directs panels ‘fully’ to take into account the interests of Members other than the parties to the dispute, and Article 10.2 requires panels to grant to third parties ‘an opportunity to be heard’. Article 10.3 ensures that, up to a defined stage in the panel proceedings, third parties can participate fully in the proceedings, on the basis of the same written submissions as the parties themselves. Article 10.3 thereby seeks to guarantee that the third parties can participate at a session of the first meeting with the panel in a full and meaningful fashion that would not be possible if the third parties were denied written submissions made to the panel before that meeting. Moreover, panels themselves will thereby benefit more from the contributions made by third parties and will, therefore, be better able ‘fully’ to take into account the interests of Members, as directed by Article 10.1 of the DSU.
    In this regard, we observe that we agree with the panel in Canada - Dairy (Article 21.5 - New Zealand and US), which reasoned that: ‘Third parties can only [participate in an informed and, hence, meaningful, manner] if they have received all the information exchanged between the parties before that session. Otherwise, third parties might find themselves in a situation where their oral statements at the meeting become partially or totally irrelevant or moot in the light of second submissions by the parties to which third parties did not have access. Without access to all the submissions by the parties to the dispute to the first meeting of the panel, uninformed third party submissions could unduly delay panel proceedings and … prevent the Panel from receiving the benefit of a useful contribution by third parties which could help the Panel to make the objective assessment that it is required to make under Article 11 of the DSU.’
    For these reasons, we believe that Article 10.3 requires that third parties be provided with all of the submissions made by the parties up to the time of the first panel meeting in which the third parties participate - whether that meeting is the first of two panel meetings, or the first and only panel meeting. Read in this way, Article 10.3 has the same meaning, and can be applied in the same way, regardless of the number of panel meetings that are held in a particular case.
    We, therefore, find that, in its decision refusing the European Communities' request to modify Rule 9 of the Panel's Working Procedures, the Panel erred in its interpretation of Article 10.3 of the DSU.”
III  Extended Third Party Rights: Exercise of Panels’ Discretion
As ruled by the Appellate Body in US-Tax Treatment (DS108)（21.5）, “n respect of the provisions of the DSU governing third party rights, we have already observed that, as the DSU currently stands, the rights of third parties in panel proceedings are limited to the rights granted under Article 10 and Appendix 3 to the DSU. Beyond those minimum guarantees, panels enjoy a discretion to grant additional participatory rights to third parties in particular cases, as long as such ‘enhanced’ rights are consistent with the provisions of the DSU and the principles of due process”. However, “panels have no discretion to circumscribe the rights guaranteed to third parties by the provisions of the DSU.”3 And as to be shown below, panel practice demonstrates that only in exceptional circumstances have third parties received such extended third party rights.
During the appellate review in EC-Hormones (DS26/DS48), the European Communities contends that, notwithstanding its protest that these decisions affected its rights of defence, the Panel took a number of decisions granting additional third party rights to Canada and the United States which are not justified by Art. 9.3 of the DSU, are inconsistent with Arts. 7.1, 7.2, 18.2 and 10.3 thereof, and were not granted to the other third parties. The European Communities refers to the following decisions of the Panel: first, to hold a joint meeting with scientific experts; second, to give access to all of the information submitted in the United States' proceeding to Canada; third, to give access to all of the information submitted in the Canadian proceeding to the United States; and fourth, to invite the United States to observe and make a statement at the second substantive meeting in the proceeding initiated by Canada. In this respect, the Appellate Body rules as follows:4
“Article 9.3 of the DSU reads as follows: ‘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.’
    After examining the procedural course of the two disputes, we consider that four aspects should be underlined. First, both proceedings dealt with the same matter. Second, all the parties to both disputes agreed that the same panelists would serve on both proceedings. Third, although the proceeding initiated by Canada started several months after the proceeding started by the United States, the Panel managed to finish the Panel Reports at the same time. Fourth, given the fact that the same panelists were conducting two proceedings dealing with the same matter, neither Canada nor the United States were ordinary third parties in each other's complaint.
    With respect to the decision of the Panel to hold a joint meeting with scientific experts, the Panel explains as follows: ‘Prior to our meeting with scientific experts, we decided to hold that meeting jointly for both this Panel, requested by Canada, and the parallel panel requested by the United States. This decision stemmed from the similarities of the two cases (the same EC measures are at issue and both cases are dealt with by the same panel members), our decision to use the same scientific experts in both cases and the fact that we had already decided to invite Canada and the United States to participate in the meeting with scientific experts in each of the two cases. In addition, we considered that, from a practical perspective, there was a need to avoid repetition of arguments and/or questions at our meetings with the scientific experts. The European Communities objected to this decision arguing that one joint meeting with experts, instead of two separate meetings, was likely to affect its procedural rights of defence. Where it made precise claims of prejudice to its rights of defence, we took corrective action.’
    We consider the explanation of the Panel quite reasonable, and its decision to hold a joint meeting with the scientific experts consistent with the letter and spirit of Article 9.3 of the DSU. Clearly, it would be an uneconomical use of time and resources to force the Panel to hold two successive but separate meetings gathering the same group of experts twice, expressing their views twice regarding the same scientific and technical matters related to the same contested EC measures. We do not believe that the Panel has erred by addressing the EC procedural objections only where the European Communities could make a precise claim of prejudice. It is evident to us that a procedural objection raised by a party to a dispute should be sufficiently specific to enable the panel to address it.
    The decision of the Panel to use and provide all information to the parties in both disputes was taken in view of its previous decision to hold a joint meeting with the experts. The European Communities asserts that it cannot see how providing information in one of the proceedings to a party in the other helps to harmonize timetables. We can see a relation between timetable harmonization within the meaning of Article 9.3 of the DSU and economy of effort. In disputes where the evaluation of scientific data and opinions plays a significant role, the panel that is established later can benefit from the information gathered in the context of the proceedings of the panel established earlier. Having access to a common pool of information enables the panel and the parties to save time by avoiding duplication of the compilation and analysis of information already presented in the other proceeding. Article 3.3 of the DSU recognizes the importance of avoiding unnecessary delays in the dispute settlement process and states that the prompt settlement of a dispute is essential to the effective functioning of the WTO. In this particular case, the Panel tried to avoid unnecessary delays, making an effort to comply with the letter and spirit of Article 9.3 of the DSU. Indeed, as noted earlier, despite the fact that the Canadian proceeding was initiated several months later than that of the United States, the Panel managed to finish both Panel Reports at the same time.
    Regarding the participation of the United States in the second substantive meeting of the Panel requested by Canada, the Panel states: ‘This decision was, inter alia, based on the fact that our second meeting was held the day after our joint meeting with the scientific experts and that the parties to this dispute would, therefore, most likely comment on, and draw conclusions from, the evidence submitted by these experts to be considered in both cases. Since in the panel requested by the United States the second meeting was held before the joint meeting with scientific experts, we considered it appropriate, in order to safeguard the rights of the United States in the proceeding it requested, to grant the United States the opportunity to observe our second meeting in this case and to make a brief statement at the end of that meeting.’
    The explanation of the Panel appears reasonable to us. If the Panel had not given the United States an opportunity to participate in the second substantive meeting of the proceedings initiated by Canada, the United States would not have had the same degree of opportunity to comment on the views expressed by the scientific experts that the European Communities and Canada enjoyed. Although Article 12.1 and Appendix 3 of the DSU do not specifically require the Panel to grant this opportunity to the United States, we believe that this decision falls within the sound discretion and authority of the Panel, particularly if the Panel considers it necessary for ensuring to all parties due process of law. In this regard, we note that in European Communities - Bananas, the panel considered that particular circumstances justified the grant to third parties of rights somewhat broader than those explicitly envisaged in Article 10 and Appendix 3 of the DSU. We conclude that, in the case before us, circumstances justified the Panel's decision to allow the United States to participate in the second substantive meeting of the proceedings initiated by Canada.”
    However, as to be confirmed in the following paragraphs, enhanced third party rights are granted primarily because of the specific circumstances, although granting enhanced third party rights is part of the discretion of panels under Article 12.1 of the DSU. Panels have no discretion to circumscribe the rights guaranteed to third parties by the provisions of the DSU.
    In US-1916 Act (by EC) (DS136), on 2 September 1999, Japan requested to be granted enhanced third party rights in this case. In particular, Japan requested to receive all the necessary documents, including submissions and written versions of statements of the parties and to attend all the sessions of the second substantive meeting of the Panel. At the request of the Panel, the EC and the United States commented on this request. The EC agreed to the request of Japan, provided that the EC's request of a similar nature in the case initiated by Japan concerning the same matter (DS162) would also be accepted. The United States strongly objected to the request of Japan. In the opinion of the United States, enhanced third party rights were not necessary in order to obtain access to the submissions of the parties. In European Communities - Measures Concerning Meat and Meat Products (‘Hormones’), the panel had granted enhanced third party rights essentially because the panel had informed the parties that concurrent deliberations would be conducted in the case initiated by the United States and in the case initiated by Canada. The United States mentioned that it would not support concurrent deliberations in this case and that it could not agree to a request of which the apparent purpose was to provide the third parties with an opportunity to make an additional submission in their own panel process.
    On 13 September 1999, the Panel, through its Chairman, informed the parties and third party Japan that it could not accede to the request of Japan. The Panel reserved its right to reconsider the issue in light of subsequent events and informed the parties and Japan that it would address the matter in detail in its findings. The Panel finds as: 5
“The Panel carefully considered the arguments raised by the parties. It notes that, while the DSU does not provide for enhanced third party rights, neither Article 10 of the DSU nor any other provision of the DSU prohibits panels from granting third party rights beyond those expressly mentioned in Article 10. The Appellate Body in the EC - Hormones case confirmed that granting enhanced third party rights was part of the discretion of panels under Article 12.1 of the DSU.
The Panel notes, however, that the DSU differentiates in terms of rights between main parties and third parties and that this principle should be respected in order to keep with the spirit of the DSU in that respect. Enhanced third party rights have so far been granted for specific reasons only. In the EC - Hormones case, like in this case and the case initiated by Japan (WT/DS162), the two panels were composed of the same panelists and dealt with the same matter. While these elements appeared to play a significant role in the decisions taken by the panels and in their confirmation by the Appellate Body, we consider that they could not be decisive. Otherwise, enhanced third party rights would have to be granted in almost all cases where the same matter is subject to two or more complaints with the same panel composition. We note that particular circumstances existed in the EC - Hormones case which certainly contributed to the decisions of the panels to review the two cases concurrently, such as their highly technical and factually intensive nature, as well as the fact that the panels had decided to hold one single meeting with the parties and the experts consulted pursuant to Article 11.2 of the Agreement on Sanitary and Phytosanitary Measures. These decisions were largely based on practical reasons and due process had to be preserved. We conclude from the reports in the EC - Hormones case that enhanced third party rights were granted primarily because of the specific circumstances.
We find that no similar circumstances exist in the present matter, which does not involve the consideration of complex facts or scientific evidence. Moreover, none of the parties requested that the panels harmonise their timetables or hold concurrent deliberations in the two procedures (WT/DS136 and WT/DS162). In fact, the European Communities was not in favour of delaying the proceedings in WT/DS136 and the United States objected to concurrent deliberations. We are of the view that, in such a context, we ought to conduct this case independently from the case initiated by Japan both in terms of procedure and of analysis of the substantive issues before us.
We are of the view that respecting due process vis-à-vis Japan did not require the participation of Japan in the second substantive meeting of the Panel. This said, having regard to Article 18.2 of the DSU, we urged the EC and the United States, in the course of the proceedings, to communicate to Japan in due course meaningful non-confidential summaries of their submissions to the Panel, if requested to do so by Japan.
We therefore find that there was no reason to grant enhanced third party rights to Japan in these proceedings.”
While in US-1916 Act (by Japan) (DS162), a similar ruling as to a similar request by the EC, mutatis mutandis, is issued. 6 However, both EC and Japan appeal As to the appeal (DS136/DS162), the Appellate Body rules as: 7
“Although the European Communities and Japan invoke Article 9 of the DSU, and, in particular, Article 9.3, in support of their position, we note that Article 9 of the DSU, which concerns procedures for multiple complaints related to the same matter, does not address the issue of the rights of third parties in such procedures.
Under the DSU, as it currently stands, third parties are only entitled to the participatory rights provided for in Articles 10.2 and 10.3 and paragraph 6 of Appendix 3.
Article 12.1 of the DSU states: ‘Panels shall follow the Working Procedures in Appendix 3 unless the panel decides otherwise after consulting the parties to the dispute.’ Pursuant to Article 12.1, a panel is required to follow the Working Procedures in Appendix 3, unless it decides otherwise after consulting the parties to the dispute.
In support of their argument that the Panel should have granted them ‘enhanced’ third party rights, the European Communities and Japan refer to the considerations that led the panel in European Communities - Hormones to grant third parties ‘enhanced’ participatory rights, and stress the similarity between European Communities - Hormones and the present cases.
The Panel in the present cases gave the following reasons for refusing to grant the European Communities and Japan ‘enhanced’ participatory rights in the panel proceedings: ‘… We conclude from the reports in the EC - Hormones cases that enhanced third party rights were granted primarily because of the specific circumstances in those cases. We find that no similar circumstances exist in the present matter, which does not involve the consideration of complex facts or scientific evidence. Moreover, none of the parties requested that the panels harmonise their timetables or hold concurrent deliberations in the two procedures (WT/DS136 and WT/DS162). In fact, the European Communities was not in favour of delaying the proceedings in WT/DS136 and the United States objected to concurrent deliberations. …’
In our Report in European Communities - Hormones, we stated: ‘Although Article 12.1 and Appendix 3 of the DSU do not specifically require the Panel to grant  [“enhanced” third party rights] to the United States, we believe that this decision falls within the sound discretion and authority of the Panel, particularly if the Panel considers it necessary for ensuring to all parties due process of law.’
A panel's decision whether to grant ‘enhanced’ participatory rights to third parties is thus a matter that falls within the discretionary authority of that panel. Such discretionary authority is, of course, not unlimited and is circumscribed, for example, by the requirements of due process. In the present cases, however, the European Communities and Japan have not shown that the Panel exceeded the limits of its discretionary authority. We, therefore, consider that there is no legal basis for concluding that the Panel erred in refusing to grant ‘enhanced’ third party rights to Japan or the European Communities.”
   
IV  Summary and Conclusions
The interpretation of Art. 10.3 of the DSU must start from the express wording of the provision. Art. 10.3 does not say that third parties shall receive “the first submissions” of the parties, but rather that they shall receive “the submissions” of the parties. The number of submissions that third parties are entitled to receive is not stated. Rather, Art. 10.3 defines the submissions that third parties are entitled to receive by reference to a specific step in the proceedings – “the first meeting of the panel”. It follow that, under this provision, third parties must be given all of the submissions, irrespective of the number of such submissions which are made, including any rebuttal submissions filed in advance of the first meeting, made by the parties up to the time of the first panel meeting in which the third parties participate - whether that meeting is the first of two panel meetings, or the first and only panel meeting. However, in respect of the third party rights Art. 10.3 of the DSU only refers to submissions “of the parties”; not to any other submissions such as the expert replies advising the panel.
Only this strict compliance with the unequivocal text of Art. 10.3 secures that the interests and rights of third parties are “fully taken into account during the panel process” in a manner enabling the panel to receive “the benefit of a useful contribution by third parties which could help the Panel to make the objective assessment that it is required to make under Article 11 of the DSU”.
As it currently stands under the DSU, third parties are only entitled to the participatory rights provided for in Arts. 10.2 and 10.3 and paragraph 6 of Appendix 3. However, while the DSU does not provide for enhanced third party rights, neither Art. 10 of the DSU nor any other provision of the DSU prohibits panels from granting third party rights beyond those expressly mentioned in Art. 10. Beyond those minimum guarantees, it falls within the sound discretion and authority of panels, under Art. 12.1 and Appendix 3 of the DSU, to grant enhanced third party rights or additional participatory rights to third parties in particular cases, as long as such “enhanced” rights are consistent with the provisions of the DSU, particularly if the Panel considers it necessary for ensuring to all parties due process of law.
Nevertheless, enhanced third party rights have so far been granted largely based on practical reasons and due process had to be preserved. Panel practice shows that only in exceptional circumstances have third parties received such extended third party rights. After all, the DSU differentiates in terms of rights between main parties and third parties and that this principle should be respected in order to keep with the spirit of the DSU in that respect. In short, a panel's decision whether to grant ‘enhanced’ participatory rights to third parties is thus a matter that falls within the discretionary authority of that panel. Such discretionary authority is, of course, not unlimited and is circumscribed, for example, by the requirements of due process.
   
【NOTE】:
1.See, WT/DS103/RW; WT/DS113/RW/2.33-2.35.
2.See, WT/DS108/AB/RW/242-252.
3.See, WT/DS108/AB/RW/243.
4.See, WT/DS26/AB/R; WT/DS48/AB/R/151-154.
5.See, WT/DS136/R/6.32-6.36.
6.See, WT/DS162/R/6.32-6.35.
7.See, WT/DS136/AB/R; WT/DS162/AB/R/144-150.