 
  WORLD TRADE  
ORGANIZATION  WT/AB/WP/W/7* 
10 April 2003 
 (03-1958) 
  
 
AMENDMENTS TO THE  WORKING PROCEDURES FOR APPELLATE REVIEW  
 
Communication from the Appellate Body  
  The following communication, dated 9 April 2003, from the Chairman of the Appellate Body, 
addressed to the Chairman of the Dispute Settle ment Body, is circulated in accordance with 
Article 17.9 of the  Understanding on Rules and Procedures Governing the Settlement of Disputes . 
 
_______________ 
 
 Thank you for the letter of 3 February 2003, in which your predecessor, Ambassador Pérez 
del Castillo, transmitted to the Appellate Body the comments of WTO Members on the proposed 
amendments to the  Working Procedures for Appellate Review  (the " Working Procedures ").  The 
proposed amendments were attached as Annex A to my letter of 17 December 2002, which was 
circulated to Members on 19 December 2002 as document WT/AB/WP/5.     The Appellate Body welcomes these comments from Members, and has taken them into account in preparing the final version of the amendm ents, a copy of which is attached.  The reasons 
for the proposed amendments were explained in my letter of 17 December 2002.  In the light of the 
comments by Members, we have now made a few mi nor modifications to the amendments, which are 
explained below.  Some stylistic changes have also been made in the Spanish version of the 
amendments so as to better reflect th e content of the English original. 
 
 The amendments will come into effect on 1 May 2003.  Until that date, the Appellate Body 
will continue to apply the  Working Procedures  as amended in September 2002. 
 Consequential Amendments to Rules 1, 16, 18, 19 and 28, and to Annex I
 
  We proposed to modify the definition of "thi rd participant" in Rule 1 as a consequential 
amendment to the changes to Rule 24.  In the fina l version of the amendments, we have simplified the 
definition so as to include all third parties that f ile a written submission and/or appear at the oral 
hearing.   With respect to the proposed new paragraph (3) to Rule 28, we have added the phrase "who 
shall also be given an opportunity to respond" to the end of this provision.  We did so to clarify that 
third parties receiving questions, responses or memo randa will be afforded the same opportunity to 
respond as the participants and third participants in the appeal.   No additional changes were made to the propo sed consequential amendments to Rules 16, 18, 
and 19, nor to the proposed consequential amendment to Annex I. 
   
 
*NOTE CONCERNING DOCUMENT NUMBER:  This Communication was originally issued on 
10 April 2003 as document WT/AB/WP /6.  For technical reasons (explain ed in WT/AB/WP/W/9), it has been 
re-issued on 4 January 2005 as document WT/AB/WP/W/7.  WT/AB/WP/W/7 
Page 2  
 Amendments to Rule 24
 
  Rule 24 sets forth the various ways in which thir d parties may participate in an appeal.  Since 
the proposal circulated on 19 December 2002, no ch anges of substance have been made to the 
proposed amendments to paragraphs (1) and (2) of Rule 24.  Minor a dditions have been made to the 
third paragraph of Rule 24 to recognize that the filing of written submissions by third parties is 
encouraged not only to facilitate the work of the divi sion, but also in order that the participants and 
other third participants will have no tice of the positions a third participant will take at the oral hearing.  
The fourth paragraph of Rule 24 has also been sli ghtly modified so as to distinguish between, on the 
one hand, a  notification  by a third party that it will  appear  at the oral hearing and, on the other 
hand, a request  by a third party to appear  and make an oral statement  at the oral hearing.  This 
distinction is also reflected in the additi onal changes to Rule 27(3), discussed below. 
 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.  In order to clarify the distinction between a third party's right to appear 
at the oral hearing and its entitlement to make an oral  statement at that hearing, we have split into two 
separate sub-paragraphs the provision that was Rule 27(3)(b) in Annex A to my December 2002 
letter.  New sub-paragraph (b) to Rule 27(3) has been added to clarify that third parties that have, 
pursuant to Rule 24(4), notified their intent to  appear  at the oral hearing, will be entitled to do so.  
Sub-paragraph (c) is a slightly modified version of sub-paragraph (b) from Annex A.  This provision 
now makes clear that when a third party has requested, pursuant to Rule 24(4), to  make an oral 
statement  at the oral hearing, then whether that party may make an oral statement and respond to the 
questioning at the oral hearing will be subject to  the discretion of the division hearing the appeal. 
 Application of the Amended Rules 
 
 
 Having received the comments of Members, a nd having completed consultations with the 
Director-General and the Chairman of the DSB, we wish to inform Members that the proposed 
amendments to the  Working Procedures  set forth in the Annex to this letter will take effect as from  
1 May 2003.  A revised, c onsolidated version of the  Working Procedures   will be circulated in the 
three working languages of the WTO on that date.  
 
_______________ 
  WT/AB/WP/W/7 
 Page 3 
 
 Annex  
 
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 written submission pursuant to 
Rule 24(1);  or any third party that appears at the oral hearing, whether or not it makes an oral statement at that hearing. 
 
2. Rule 24 shall be deleted and replaced by the following: 
 Third Participants 
 
24. (1) Any third party may file a written submission containing the grounds 
and legal arguments in support of its pos ition.  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  a 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 participants are encourag ed to file written submissions to 
facilitate their positions being taken full y into account by the division hearing 
the appeal and in order that participants  and other third participants will have 
notice of positions to be taken at the oral hearing. 
 
 (4) Any third party that has neither filed a written submission  pursuant 
to  paragraph (1), nor notified the Secretariat pursuant to  paragraph (2), may notify the Secretariat that it intends to appear at the oral hearing, and may 
request to make an oral statement at the hearing.  Such notifications and 
requests should be notified to the Secretariat in writing at the earliest 
opportunity.  
 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 notified the Secretariat pursuant to 
Rule 24(4) that it intends to appear at the oral hearing may 
appear at the oral hearing. 
   (c) Any third party that has made a request pursuant to 
Rule 24(4) may, at the discretion of the division hearing the 
appeal, taking into account the requirements of due process, 
make an oral statement at the hearing, and respond to questions posed by the division. 
 WT/AB/WP/W/7 
Page 4  
 4. Paragraph 1 of Rule 16 shall be deleted and re placed by the following: 
 
(1) In the interests of fairness and orderl y procedure in the conduct of an appeal, 
where a procedural question arises that is not covered by these Rules, a division may adopt an appropriate procedure for the purposes of that appeal only, provided that it is not inconsiste nt 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 ot her 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 th e 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 
 
(1) Neither a division nor any of its Me mbers 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 discu ss 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, who shall also be given an opportunity to respond. 
 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 
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1Rules 22 and 23(3). 
2Rule 24(1). 
3Rule 24(2). 