 
  WORLD TRADE  
ORGANIZATION  WT/AB/WP/W/6* 
19 December 2002 
 (02-6996) 
  
  
AMENDMENTS TO THE  WORKING PROCEDURES FOR APPELLATE REVIEW  
 
Communication from the Appellate Body
 
   The following communication, dated 17 December  2002, from the Chairman of the Appellate 
Body, addressed to the Chairman of the Dispute Se ttlement Body, is circulated in accordance with 
Article 17.9 of the  Understanding on Rules and Procedures Governing the Settlement of Disputes . 
 
_______________ 
  I refer to your letter of 8 November 2002, tr ansmitting to the Appellate Body the comments, 
questions and requests for additional explanations  made by Members during the DSB meeting of 
23 October 2002 regarding the recent amendmen ts to Rules 1, 24 and 27 of the  Working Procedures 
for Appellate Review  (the " Working Procedures "). 
  The Members of the Appellate Body welcom e these comments from the WTO Members and 
we are pleased to provide Members wi th additional explanations, which we set forth in this letter.  We 
also propose, in the light of the comments made by Members, to make further amendments to Rules 1, 
24(4), and 27, as well as additional consequential amendments to Rules 16(1), 18(5), 19 and 28, as 
well as to Annex 1.  These amendments are explaine d below, and a copy of the proposed amendments 
is attached as Annex A to this letter. 
 
 Our intention is to adopt the proposed amendments to the  Working Procedures  set forth in 
Annex A to this letter early next year, to have e ffect as from 15 February 2003.  In the meantime, we 
will continue to apply provisionally the Rules as am ended in September 2002.  To that end, we would 
be grateful if you would bring the information set fort h in this letter to the attention of Members, and 
seek their views.  We will also seek consultati ons with the Director-General on these matters. 
 
General Background
 
  The experience of the first six years of operation of the Appellate Body revealed an 
unintended rigidity in the  Working Procedures  with respect to the rules relating to third party 
participation in the oral hearing.  Specifically, the  Working Procedures  did not contemplate 
participation in the oral hearing by third parties that had not filed a written submission within 25 days of the filing of the Notice of Appeal.  Many Memb ers expressed the view that the opportunity to 
attend the oral hearing and be heard by the Appellate Body should not depend on the filing of a written submission.  The Appellate Body's practice of allowing "passive participation" at oral hearings 
went some way towards meeting these concerns, alt hough certain Members felt that more flexibility 
was desirable.    
 
*NOTE CONCERNING DOCUMENT NUMBER:  This Communication was originally issued on 
19 December 2002 as document WT/AB/WP/5.  For tec hnical reasons (explained in WT/AB/WP/W/9), it has 
been re-issued on 4 January 2005 as document WT/AB/WP/W/6.  WT/AB/WP/W/6 
Page 2  
 
  The issue of third party participation in the or al hearing arose regularly in appeals in recent 
years, and several Members continued to press for elimination of the rule requiring the filing of a written submission.  We agreed with Members that a more flexible approach was desirable and sought 
to respond to Members' requests for change with sp ecifically targeted amendments to Rules 1, 24 
and 27 of the  Working Procedures. 
 
Consequential Amendments to Rules 1, 16, 18, 19 and 28
 
  With respect to the definition of "third par ticipant" in Rule 1, this was a consequential 
amendment to the amendments made to Rule 24.  We  thought it desirable to expand the definition to 
include third parties that notify their intent to par ticipate in the oral hearing.  Members have pointed 
out that the new definition of third participant does not include third parties that neither file a written 
submission in accordance with Rule 24(1), nor make a notification in accordance with Rule 24(2), but 
who attend and/or participate in the oral hearing pursuant to new Rules 24(4) and 27(3)(b).  It has also 
been mentioned that the new definition of "third pa rticipant" has certain undesirable consequences for 
the operation of certain other rules.  We note that  these comments relate both to the effect of the 
recent amendments and to perceived deficiencies in the existing Rules that are unrelated to the recent 
amendments.  In considering possible amendments to  enhance third party participation in the oral 
hearing, we did not feel that the time was ripe  for a comprehensive review and revision of our 
Working Procedures —such as may be needed, for example, on completion of the negotiations on 
amendments and clarifications to the DSU.  Notw ithstanding our desire to minimize the amendments 
to the  Working Procedures  at this point in time, we propose to  take account of Members' comments 
through additional amendments to the definition of "third participant" in Rule 1, as well as to 
Rules 16(1), 18(5), 19, and 28, as indicated in the attached Annex A.     Amendments to Rule 24
 
 
 New Rule 24(2) enables Members that do not wish to file written submissions to attend and/or participate in the oral hearing.  The amended Ru le seeks to have such Members notify in advance 
their intention to attend and/or participate in the hearing.  Advance notice enhances our ability, and, 
presumably, the ability of parties to the dispute, to  prepare for the oral hearing.  Notification in 
accordance with Rule 24(2) does not, however, result in any  obligation  being imposed upon a 
Member to attend and/or participate actively at the oral hearing.  Nor will a Member suffer adverse 
consequence if it decides not to adhere to its no tified intention.  Should a Member notify only an 
intention to appear at the hearing, and not an inte ntion to make an oral statement, but subsequently 
decide that it desires to make an oral statement,  that Member may seek to do so in accordance with 
Rule 24(4) of the  Working Procedures .  Similarly, a Member that makes no notification pursuant to 
Rule 24(2), but subsequently decides that it would lik e to appear and/or make a statement at the oral 
hearing, may seek to do so under Rule 24(4) of the Working Procedures . 
  Rule 24(3) acknowledges that taking account of  the views of third parties often will be 
facilitated when those views are set forth in a written submission filed in advance of the oral hearing.  
This allows us, and, presumably, the parties to th e dispute, to reflect on th e expressed positions of the 
third parties, which in turn tends to allow a more considered exploration of those views to take place 
at the oral hearing.  Thus, although we have eliminated the requirement  for third parties to file written 
submissions, we nevertheless signal the desirability of filing such submissions.   Rule 24(4) sets forth a mechanism through wh ich third parties that have not filed a written 
submission and have either not notif ied in advance their intention to attend the oral hearing, or not 
notified their intention to make an oral statement at  the oral hearing, may nevertheless be permitted to 
attend and/or participate in the oral hearing.  Th ird parties making a request pursuant to Rule 24(4) 
may, but are not obliged to, provide reasons as to  why they did not file a written submission under 
Rule 24(1) or notify in accordance with Rule 24(2).  As a general matter, we encourage third parties  WT/AB/WP/W/6 
 Page 3 
 
 
 to submit to the Appellate Body Secretariat at th e earliest possible opportunity any request to attend 
and/or participate at the oral hearing in accordan ce with Rule 24(4).  Early notice will facilitate 
preparation for the oral hearing, and enhance the lik elihood that such requests can be granted without 
compromising due process for the participants in th e appeal (which we address below), and without 
unduly affecting the orderly and efficient conduct of  the oral hearing. We anticipate that other 
participants in the dispute may be given an opportunity to provide views on such requests for 
participation, if desired.   
Taking account of the comments made by Member s, we propose to amend the new Rule 24(4) 
to state explicitly that Members should seek to inform the Appellate Body Secretariat of their desire to 
attend and/or participate actively at the oral heari ng as soon as possible.  As explained further below, 
we also propose to add language to clarify the relationship between Rules 24(4) and 27(3), and to 
make clear that any authorization granted to thir d parties that have not filed a written submission 
under Rule 24(1), or notified their intention to app ear at the oral hearing under Rule 24(2), will not 
exceed the rights of participation afforded to thir d parties that have filed a written submission or 
provided a notification. 
 Amendments to Rule 27(3)
 
  Rule 27(3) sets forth the mechanism accord ing to which third parties may appear and 
participate in the oral hearing.  Given that it is  Rule 27, rather than Rule 24, that deals with 
participation in the oral hearing, we are of th e view that the discretion referred to in the new 
Rule 24(4) should be a discretion exercised unde r Rule 27(3), and propose to amend that Rule 
accordingly.    In exercising discretion pursuant to this provision, we expect to have regard, inter alia , to 
factors such as the need to  respect due process for other Members participating in the oral hearing.  
We would take into account the time at which such  request was made, and the need to ensure the 
orderly and efficient conduct of proceedings.  It is li kely that we would be more inclined to grant a 
request made under Rule 24(4) in circumstances where the reasons why the third party seeks to 
participate in the oral hearing relate to matters th at were not known, or not made clear, to the third 
party, prior to the 25-day deadline that applies under Rules 24(1) and 24(2).  
 
 The participation that will be authorized  will thus depend on a number of different 
considerations that cannot be exha ustively identified in the abstract.  Indeed, we believe it would not 
be desirable to foreclose the circumstances in which the Rule may be applied, for this would return us 
to the inflexibility of the old rules that we were seeking to eliminate.  Nevertheless, bearing in mind 
all of the considerations we have just identified, we anticipate that, provided that due process is not 
compromised, Rule 27(3) will be applied such that  third parties making a request under Rule 24(4) 
will be afforded opportunities to participate in  the oral hearing that will correspond to the 
opportunities afforded to third parties that have f iled a written submission or a notification pursuant to 
Rules 24(1) and (2).   
 In the light of the proposed new definition of "t hird participants", as well as the need to clarify 
the relationship between Rule 24 and Rule 27(3), we propose to amend Rule 27(3) to confirm that, for 
third parties, the right to appear and participate in  the oral hearing will be automatic for third parties 
that have filed a written submission under Rule 24( 1), or made a notification under Rule 24(2); and 
that such rights to appear and participate in the or al hearing will, for third parties that have made a 
request pursuant to Rule 24(4), be subject to the discretion of the division hearing the appeal, as 
indicated above.  These proposals are indicated  in Annex A attached to this letter. 
   WT/AB/WP/W/6 
Page 4  
 
 Amendment to Annex I
 
  Lastly, we note that it is necessary, in the light of new Rule 24(2), to make a minor amendment to Annex I to the  Working Procedures , as indicated in Annex A attached to this letter.   
 
Application of the Amended Rules
 
  We note that the recent amendments provisiona lly took effect on 27 September 2002, the date 
on which they were communicated to Members, follo wing consultations with the Director-General 
and the Chairman of the Dispute Settlement Body.
1  The amendments have been applied in all appeals 
for which the deadline for the filing of thir d participants' written submissions fell after 
27 September 2002.  Since 27 September, pursuan t to Rule 24(2), one Member has notified its 
intention to appear at the oral hearing and three Members have notified their intention to appear and 
make an oral statement at the oral hearing.  In addition, seven Members have filed written 
submissions in accordance with Rule 24(1).  No Me mber has made a request pursuant to Rule 24(4). 
 
Proposed Meeting with the Chairman of the DSB  
  We note that Members have also inquired a bout the reference in my letter to you dated 
18 October 2002 to a meeting I proposed to have w ith you, Ambassador Balas, Rufus Yerxa, Bruce 
Wilson, and others whom you might wish to invi te.  I would be grateful if you would inform 
Members that this invitation was in line with simila r invitations that have been issued over the years 
by former Chairpersons of the Appellate Body to former Chairpersons of the DSB.  As you know, the 
Members of the Appellate Body believe it is useful to meet from time to time with the Chairpersons 
of the DSB and others interested in dispute settle ment to have an exchange of views about WTO 
dispute settlement generally.  The discussions ar e usually fairly wide-ranging and do not necessarily 
relate to proposed amendments to the  Working Procedures . 
 
_______________ 
 
                                                     
 
1A copy of these amendments is att ached as Annex B to this letter.  WT/AB/WP/W/6 
 Page 5 
 
 
 Annex A  
  
Proposed Amendments to the  Working Procedures for Appellate Review
 
 
 
1. The definition of "third participant" in Rule  1 shall be deleted and replaced by the following: 
 
 "third participant" 
 means any third party that has filed a submission pursuant to Rule 24(1), that 
has notified the Secretariat pursuant to Ru le 24(2) that it intends to appear at 
the oral hearing, or that the division h as authorized to participate in the oral 
hearing pursuant to Rule 27(3)(b). 
  
2. Rule 24 shall be deleted and replaced by the following: 
Third Participants 
 
24. (1) Any third party may file a wr itten submission containing the grounds 
and legal arguments in support of its  position.  Such submission shall 
be filed within 25 days after the date of the filing of the Notice of 
Appeal. 
  (2) A third party not filing such written submission shall, within the same 
period of 25 days, notify the Secretariat in writing if it intends to appear at the oral hearing, and, if so, whether it intends to make an 
oral statement. 
  (3) Third parties wishing to particip ate in the appeal are encouraged to 
file written submissions to facilitate  their positions being taken fully 
into account by the division hearing the appeal. 
 
 (4) Any third party that has neither filed a written submission in 
accordance with paragraph (1), no r notified the Secretariat in 
accordance with paragraph (2), may request to appear at the oral 
hearing, and  to make an oral statement at the hearing.  Such requests should be notified to the Secretariat at the earliest opportunity.  
 
 3. Paragraph 3 of Rule 27 shall be deleted and re placed by the following: 
 
 (3) (a) Any third party that has filed a submission pursuant to 
Rule 24(1), or has notified the Secretariat pursuant to 
Rule 24(2) that it intends to appear at the oral hearing, may 
appear at the oral hearing, make an oral statement at the hearing, and respond to questions posed by the division. 
  (b) Any third party that has made a request pursuant to 
Rule 24(4) may, at the discretion of the division hearing the 
appeal, taking into account the requirements of due process, 
appear at the oral hearing, make an oral statement at the hearing, and respond to questions posed by the division. 
 WT/AB/WP/W/6 
Page 6  
 
 4. Paragraph 1 of Rule 16 shall be deleted and re placed by the following: 
 
 (1) In the interests of fairness and orderly procedure in the conduct of an 
appeal, where a procedural question arises that is not covered by these Rules, a division may adopt an appr opriate procedure for the purposes 
of that appeal only, provided that it is not inconsistent with the DSU, 
the other covered agreements and these Rules.  Where such a procedure is adopted, the division shall immediately notify the parties to the dispute, participants, third parties and third participants as well 
as the other Members of the Appellate Body. 
 
 
5. Paragraph 5 of Rule 18 shall be deleted and re placed by the following: 
 
 (5) Upon authorization by the division, a participant or a third participant 
may correct clerical errors in any of its submissions. Such correction 
shall be made within 3 days of the filing of the original submission and a copy of the revised version shall be filed with the Secretariat and served upon the other parties to the dispute, participants, third parties and third participants. 
 
 
6. Rule 19 shall be deleted and replaced by the following: 
 
 Ex Parte Communications 
 
19. (1) Neither a division nor any of its Members shall meet with or contact 
one party to the dispute, participant,  third party or third participant in 
the absence of the other parties to the dispute, participants, third parties and third participants.  
 
 (2) No Member of the division may discuss any aspect of the subject 
matter of an appeal with any party to the dispute, participant, third 
party or third participant in the absence of the other Members of the division. 
 
 (3) A Member who is not assigned to the division hearing the appeal 
shall not discuss any aspect of the subject matter of the appeal with 
any party to the dispute, participant,  third party or third participant. 
  
7. The following paragraph 3 shall be added to Rule 28:  
 (3) When the questions or requests for memoranda are made prior to the 
oral hearing, then the questions or requests, as well as the responses or memoranda shall also be made available to the third parties. 
  WT/AB/WP/W/6 
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8. The fourth row of the Table in Annex I sh all be deleted and repl aced by the following: 
 
  Appellee(s) Submission(s)1 
  Third Participant(s) Submission(s)2 
  Third Participant(s) Notification(s)3 25 
25 
25 12 
12 
12 
 
                                                      
1Rules 22 and 23(3). 
2Rule 24(1). 
3Rule 24(2). WT/AB/WP/W/6 
Page 8  
 
 Annex B
 
  
Amendments to the  Working Procedures for Appellate Review  
 
 
1. The definition of "third participant" in Rule  1 shall be deleted and replaced by the following: 
 
 "third participant" 
means any third party that has filed a su bmission pursuant to Rule 24(1) or has 
notified the Secretariat pursuant to Rule 24(2) that it intends to appear at the 
oral hearing; 
  
2. Rule 24 shall be deleted and replaced by the following: 
Third Participants 
 
24. (1) Any third party may file a wr itten submission containing the grounds 
and legal arguments in support of its  position.  Such submission shall 
be filed within 25 days after the date of the filing of the Notice of Appeal. 
 
 (2) A third party not filing such written submission shall, within the same 
period of 25 days, notify the Secretariat in writing if it intends to appear at the oral hearing, and, if so, whether it intends to make an oral statement. 
 
 (3) Third parties wishing to particip ate in the appeal are encouraged to 
file written submissions to facilitate  their positions being taken fully 
into account by the division hearing the appeal. 
  (4) Any third party that has neither filed a written submission in 
accordance with paragraph (1), no r notified the Secretariat in 
accordance with paragraph (2), may, at the discretion of the division 
hearing the appeal, make an oral statement at the oral hearing, respond to questions posed by the division, and comment on responses given by others. 
 
 
3. Paragraph 3 of Rule 27 shall be deleted and re placed by the following: 
   (3) Any third participant that has filed a submission pursuant to 
Rule 24(1) or has notified the Secretariat pursuant to Rule 24(2) that 
it intends to appear at the oral hearing may appear to make oral 
arguments or presentations at the oral hearing. 
 
__________ 
 