WORLD TRADE
ORGANIZATIONWT/WGTCP/W/231
22 May 2003
(03-2735)
Working Group on the Interaction
between Trade and Competition Policy
PROVISIONS ON PROCEDURAL FAIRNESS
IN EXISTING WTO AGREEMENTS
Background Note by the Secretariat
I. INTRO DUCTION ................................................................................................................. ...2
II. OBSERVATIONS BY  MEMBERS.........................................................................................3
III. THE SCOPE OF PROC EDURAL FAIRNESS IN WTO AGREEM ENTS........................5
A. G ENERAL ASPECTS OF PROCEDURAL FAIRNESS .................................................................8
1. Transparency ..........................................................................................................82. Non-discrimination.................................................................................................8
3. Timeliness...............................................................................................................8
4. Indemnific ation.......................................................................................................9
B. A
CCESS TO JUSTICE /ACTION BY THE AUTHORITIES ............................................................9
C. C HARACTERISTICS OF THE AUTHORITIES TO WHICH RECOURSE CAN BE HAD................10
D. N OTICE OF THE INITIATION OF PROCEEDINGS ...................................................................11
E. I NFORMATION ON APPLICABLE RULES , PROVISIONS AND REQUIREMENTS ......................12
F. A CCESS TO EVIDENCE PUT FORWARD BY AUTHORITIES AND OTHER PARTIES ................12
G. R IGHT TO BE HEARD , INCLUDING THE RIGHT TO SUBMIT EVIDENCE AND THE RIGHT
TO RESPOND TO ALLEGATIONS AND CONCERNS .............................................................13
H. O BLIGATIONS TO DISCLOSE EVIDENCE .............................................................................14
I. R IGHT TO BE REPRESENTED ..............................................................................................15
J. P ROVISIONAL MEASURES ..................................................................................................15
K. M AIN CHARACTERISTICS OF DECISIONS ON THE MERITS .................................................16
L. R IGHT OF REVIEW /EXISTENCE OF AN APPEAL MECHANISM .............................................17
M. P ROTECTION OF CONFIDENTIAL INFORMATION ................................................................18
IV. BENEFICIARIES OF PROC EDURAL FAIRNESS SAFEG UARDS ...............................19This document has been prepared under the Secretariat's own
responsibility and without prejudice to the positions of Members
and to their rights  and obligations  unde r the WTO.WT/WGTCP/W/231
Page 2
I. INTRODUCTION
1. This note has been prepared in response to a request made by the Working Group at its
meeting of 26-27 September 2002,1 as an input to the Group's consideration of the relevance to its
work of the principle of procedural fairness, which is referred to as a core principle in paragraph 25 of
the Doha Ministerial Declaration.2  It complements a previous paper3 prepared by the Secretariat on
the other core principles that are explicitly mentioned in paragraph 25 of the Doha Declaration,4
namely transparency and non-discrimination.
2. As requested by the Working Group, the aim of this note is to provide factual background on
the location, purpose and content of the principle of procedural fairness as it is incorporated in
existing WTO Agreements.  The note does not seek to analyse the relevance of the principle of
procedural fairness for competition law and policy si nce that was not part of the mandate given to the
Secretariat.  Rather, it was understood that this was a task for Members in the Working Group.
3. As will be evident from the analysis below, existing WTO Agreements contain a large
number of provisions relating to the matter of procedural fairness.  The note seeks to set out and, to
the extent possible, categorise the relevant provisions, focussing on the three main WTO Agreements,
notably the GATT, GATS and TRIPS Agreements, and some key Annex 1 A Agreements, in
particular, the Agreement on Implementation of Article VI of the General Agreement on Tariffs andTrade 1994 ("Agreement on Anti-Dumping Measures" or "AD"), the Agreement on Subsidies and
Countervailing Measures ("SCM") and the plurilateral Agreement on Government Procurement
("GPA"), which address important additi onal aspects of procedural fairness.
4. The note is limited to WTO requirements on procedural fairness at the domestic level.  It does
not deal with WTO procedural fairness requirements regarding the treatment of WTO Members assuch, for example in the context of WTO dispute settlement and other procedures.
5
5. As a further introductory point, it should be noted that the term "procedural fairness" is not to
be found in any WTO Agreement.  As indicated in paragraph 16 below, while some broad principles
relating to procedural fairness are generally applicable throughout the WTO, the same conclusion
cannot be drawn for the more elaborate provisions of this nature found in a number of specific WTOAgreements.  These provisions have been negotiated in order to respond to the specific needs of
individual agreements and subject-matters, rather than as part of any common overall design or
pattern.  While much of this paper is necessarily taken up with enumerating these more detailed
provisions, it would be inappropriate for the reader to over-generalise their applicability in the WTO
system.
6. As background to the analysis and in order to facilitate future discussions on this topic in the
Working Group, Part I of this note summarises the observations made by Members on the relevanceof procedural fairness for competition law and policy in recent meetings of the Working Group.
                                                     
1 Report on the Meeting of 26-27 September (WT/WGTCP/M/19), paras. 14 and 86.
2 Doha Ministerial Declaration adopted on 14 November 2001, 20 November 2001,
WT/MIN(01)/DEC/1, para. 25.
3 Background Note by the Secretariat on The Fundamental WTO Principles of National Treatment,
Most-Favoured-Nation Treatment and Transparency (WT/WGTCP/W/114, issued 14 April 1999).
4 Doha Ministerial Declaration adopted on 14 November 2001, 20 November 2001,
WT/MIN(01)/DEC/1, para. 25.
5 For example, the Understanding on Rules and Procedures Governing the Settlement of Disputes; the
Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes
(WT/DSB/RC/1); the Working Procedures of Appellate Review (WT/AB/WP/4); the rules of procedure ofvarious WTO bodies; and the procedures contained in the TBT and SPS Agreements regarding notification ofproposed technical regulations.WT/WGTCP/W/231
Page 3
Part II describes various types of WTO requirements relating to procedural fairness.  Part III
addresses the issue of the beneficiaries of procedural fairness safeguards.
II. OBSERVATIONS BY MEMBERS6
7. The view has been expressed in the Working Group that all effective competition policy
regimes include guarantees that the rights of parties facing adverse decisions and sanctions will berecognised and respected.  Such guarantees can vary both in content and in form, reflecting the tools
of the legal system and the traditions that generated the competition regime.  The suggestion has been
made that four broad categories of guarantees are relevant.  First, there should be guarantees relating
to access to the system, including the right of firms to have notice that a formal investigation by the
competition authority is pending against them, and what the authority's objections to their conduct are.
A second basic guarantee relates to the defence of the firms involved.  Firms should have the
opportunity and the time to make thei r views known to the authority in  writing or by participating in
hearings, by submitting evidentiary proof or documents, and by having an opportunity to introduce
testimony from witnesses who might corroborate their views on the facts.  These types of guarantees
would typically include some right of access to the authority's file.  A third guarantee is the right of
firms involved in competition proceedings to have decisions affecting them reviewed by an
independent judicial body.  Finally, the protection of confidential information, including businesssecrets, should also be guaranteed.  These basic guarantees do not need to be harmonised across
regimes, but should be described in a future agreement with some clarity.
7
8. The view has also been expressed that four broad concepts can be identified that are likely to
promote fairness, namely:  (i) the right of access and rights to petition a competition authority;  (ii) the
right of a firm subject to an investigation to know the basis for an antitrust authority's objection before
the authority takes action, and the right of that firm to respond;  (iii) the right to appeal an agency's
decision;  and (iv) timeliness.8
9. A number of questions, concerns and reservations have been noted regarding the proposal to
incorporate the principle of procedural fairness in a multilateral framework on competition policy.
First, the point has been made that there is not yet a broad consensus on the meaning of proceduralfairness in the context of competition law enforcement, partly because notions of fundamental fairness
differ between legal systems, and are also influenced by domestic political and legal cultures.
9
Second, a number of specific questions have been posed regarding how the principle of proceduralfairness would work in practice, including:  who should have rights of access to the system and
whether access should be equal or differentiated for different classes of parties?  Should procedural
rights be accorded to third parties that might be harmed by a merger transaction but not in a traditional
antitrust sense?  Would the agencies of Members whose legal systems allow for broad rights ofprivate action to pursue competition law claims directly through the use of the courts be required to
provide as much formal access to the agency as those that do not?  Would all Members be required to
have private rights of action?  What form should the right to respond take?  Would objections need to
be notified formally and in writing or could this be done on a more informal basis?  What types of
decisions ought to be reviewable?
10. As to the implications for developing countries, the concern has been expressed that the
principle of procedural fairness could require a Member to set up and maintain a judicial framework
for handling appeal cases.  Requirements for comprehensive notification and publication of
competition laws and related information might also be resource-intensive.  More studies and
                                                     
6 This part of the paper is based on the Report (2002) of the Working Group on the Interaction between
Trade and Competition Policy to the General Council (WT/WGTCP/6), especially paras. 30-36 and 44-46.
7 Report of the Meeting of 26-27 September 2002 (WT/WGTCP/M/19), para. 41.
8 Id., para. 18.
9 Id., para. 18.WT/WGTCP/W/231
Page 4
discussions are necessary so that developing countries can more realistically assess the costs and
benefits of such provisions before Ministers decide on the modalities of negotiations.10  In particular,
it would be useful to clarify whether Article X of GATT is an appropriate reference for the discussion
of procedural fairness in the Working Group, or whether a more specific concept of procedural
fairness has to be developed for competition policy.11  In any case, it is important to address this issue
in ways that take account of the diversity of Members' legal cultures and the established practices of
national judicial systems and competition authorities, where the latter exist.12
11. In response to these concerns, the view has been expressed that all competition systems
respect certain basic criteria of fairness.  Further, experience in other areas of the WTO has shown
that procedural fairness can be addressed in ways that are simple and practical, and yet take account
of the evident diversity in Members' legal cultures and systems.  For instance, there are a number of
provisions in the WTO agreements stipulating an obl igation to provide for judicial review without any
interference whatsoever on how judicial reviews are organised in a given country, or the scope of such
judicial reviews.  In practice, these provisions have not created problems of the type which have been
alluded to, and have been useful in terms of reassuring traders and investors that the national systems
of countries with which they often have, at best, limited familiarity, respect certain basic norms.13  As
to the interaction of a possible multilateral framework on competition policy, in particular itsprocedural fairness elements, with the necessity of policy space for promoting domestic goals
unrelated to economic efficiency, the point has been made that the guarantees of non-discrimination
and procedural fairness embodied in a Member's Constitution and the existence of a competition law
respecting those guarantees has not prevented the implementation of industrial and social policies
even where the application of such policies requires the selective promotion of particular interestgroups.
14
12. With regard to the general architecture of possible provisions on core principles, including
procedural fairness, in a multilateral framework on competition policy, the suggestion has been made
that such a framework might embody only general provisions with regard to the core principles, while
also offering more detailed interpretations or po ssible approaches for the application of the core
principles in the form of non-binding guidelines or a menu of options.  This would foster common
understanding of the core principles among Members, while also taking into consideration the
diversified approaches of competition law enforcement adopted by each Member.15  The view has
been also expressed that, although non-binding arrangements could be part of a possible way forward,
a purely non-binding framework would not be sufficient.16
13. The suggestion has also been made that giving content to the principle of special and
differential treatment might facilitate reaching agreement on the appropriate meaning and scope of
procedural fairness and the other proposed core principles.17 In particular, the view has been
expressed that developing countries should be given a time-frame to build transparency and due
process in the administration and enforcement of their competition laws.18  The view has been also
expressed that special and differential treatment should not necessarily be limited to developing
                                                     
10 Id., paras. 27 and 28.
11 Id., para. 54.
12 Id., paras. 15, 28 and 63.
13 Id., paras. 41, 42 and 68.
14 Id., para. 31.
15 Id., para. 80.
16 Id.
17 Id., para. 32.
18 Id., para. 12.WT/WGTCP/W/231
Page 5
countries.  Rather, flexibility could be extended to all countries that have no competition law,19
regardless of their stage of economic development.20
14. Pursuing a specific aspect of the debate, the view has been expressed that even the more basic
procedural fairness rules that might be envisioned in a multilateral agreement might raise problems
for national enforcement processes.  For instance, as to the right to receive a notice of aninvestigation, there would be no problem if the notice is supposed to be addressed to the party being
investigated, but the situation is different if there is  to be widespread notification, for example, to the
WTO and/or its Members.  Certain Members' practice is not to disclose publicly the existence of an
investigation when it has not been determined that the target of an investigation did anything wrong,
out of respect for the rights of the person being investigated.
21  In response, the point has been made
that there is a need for a clear distinction between notification of investigations to the parties, and
notification to the WTO.  To show compliance with a procedural fairness obligation in the WTO,Members should simply be in a position to demonstrate that they have made provision for targets of
an investigation to be notified in an appropriate manner.
22  The suggestion has also been made that
any eventual multilateral framework on competition policy should be non-binding; in this context, the
question of obligations relating to procedural fairness would not arise.23
15. Finally, the view has been expressed that the principles referred to in paragraph 25 of the
Doha Ministerial Declaration are the basis of the multilateral trading system and are known by all
countries.  To bring them over to competition legislation would not be difficult if Members engaged
themselves positively in the exercise.  No competition law is opposed to these principles; on the
contrary, competition policy and the WTO principles are mutually supportive.  Furthermore, the
proposed principles are important to the credibility of competition agencies.  Delegations shouldtherefore adopt a positive stance in this area, starting with an analysis of how the principles are
reflected in their own legislation.  In this way, common approaches and positions could be readily
identified.
24
III. THE SCOPE OF PROCEDURAL FAIRNESS IN WTO AGREEMENTS
16. Provisions on procedural fairness in WTO agreements can be divided into two main
categories:
(a) First, broad provisions on procedural fairness based on three central concepts:
(i) that governmental measures of general application be published and that this
be done, as a general rule, before they are applied;
(ii) that such measures be administered in a uniform, impartial and reasonable
manner or in a fair and equitable way;  and
(iii) possibilities for appeal or review of decisions on the application of such
measures.
                                                     
19 Id., para. 55.
20 Id., para. 15.
21 Id., para. 69.
22 Id.
23 Id., para. 26.
24 Id., para. 82.WT/WGTCP/W/231
Page 6
Provisions based on these concepts can be found in Article X of the GATT,25 Articles
III and VI of the GATS and Articles 41.2- 4 and Article 63 of the TRIPS Agreement
and are also reflected in many other WTO agreements.
(b) Second, more detailed and specific provisions regarding procedural fairness that can
be found in many of the specific Annex 1A agreements as well as in the TRIPS
Agreement and the plurilateral Agreement on Government Procurement.  These
provisions aim to regulate the way in which specific measures are applied.  Examples
are found in the provisions in:
(i) the Agreements on Anti-Dumping Measures and Subsidies and
Countervailing Measures on the way in which investigations on anti-dumping
and countervailing are to be conducted;
(ii) the Agreement on Safeguards on the way in which safeguard investigations
and the review of safeguard measures should be carried out;
(iii) the Agreement on Import Licensing Procedures on the way in which import
licences should be administered;
(iv) the Agreement on Preshipment Inspection on the way in which Members
using preshipment inspection should ensure that such inspections are carried
out;
(v) the plurilateral Agreement on Government Procurement on the way in which
government procurement contracts should be awarded;  and
(vi) the TRIPS Agreement on the enforcement of intellectual property rights and
the acquisition and maintenance of such rights.
17. The above provisions apply to a broad range of situations relating to the application of
measures affecting trade.  One way of categorising these is as follows:
(a) The situation where an administrative authority is simply applying a measure, without
there being any significant legal proceedings enabling the interests of different partiesto be taken into account in a decision on the measure.  Examples would be the
levying of tariffs, including the determining of customs valuation, the application of
import licensing and government procurement.
(b) A second situation would be where an administrative authority is applying a measure
whose application involves legal proceedings intended to provide an opportunity for
the interests of different parties to be taken into consideration in reaching a decision
on the measure, and where the administrative authority is required to have regard tocertain norms of due process in conducting investigations and/or administering the
measures.  Examples would include the application of anti-dumping and
countervailing duties and safeguard measures and the acquisition and maintenance of
intellectual property rights.
(c) A third situation concerns the procedures to be followed by administrative tribunals
operating in a quasi-judicial way.  Examples can be found in Article X:3 (b) of the
                                                     
25 For a thorough analysis of Article X of the GATT and the relevant jurisprudence, see Background
Note by the Secretariat on "Article X of the GATT 1994 – Scope and Application" (G/C/W/374).WT/WGTCP/W/231
Page 7
GATT, Articles 49 and 50.8 of the TRIPS Agreement and Article XX of the
Agreement on Government Procurement.
(d) Finally, procedures to be followed by judicial authorities in carrying out their
functions.  The main example of this is Part III of the TRIPS Agreement.
18. Another situation addressed by WTO procedural provisions which might briefly be mentioned
is that of procedures regarding the preparation of national legislation aimed at ensuring that interested
parties in other Members have advance notice that a Member proposes to introduce a measure.
Examples can be found in the Agreements on Technical Barriers to Trade and the Application of
Sanitary and Phyto-Sanitary Measures.  Mention might also briefly be made of two other sets of
provisions relating to procedural fairness in WTO agreements which do not fall readily under any of
the above categories:
(a) The Code of Good Practice for the Preparation, Adoption and Application of
Standards contained in Annex 3 of the Agreement on Technical Barriers to Trade.
This instrument is not limited to the application of governmental measures but is open
for acceptance by any standardising body within a WTO Member, whether
governmental or non-governmental.  It contains a number of procedural norms to be
followed by such bodies, designed to ensure  the fair treatment of interested parties
within WTO Members.
(b) The independent review procedures provided for in the Agreement on Preshipment
Inspection.  Under these provisions, an international mechanism to settle disputes
between preshipment inspection entities and exporters is established and certain
provisions on procedural fairness are specified.  In the WTO scheme of things, thismechanism is exceptional in that provision is made for disputes to be brought by a
private party to an international dispute resolution entity.  This mechanism, which is
administered by the WTO Secretariat, has yet to be used.
19. Given the focus of the work of the Working Group on the Interaction between Trade and
Competition Policy and in the light of the views expressed on the issue of procedural fairness in theWorking Group so far, this note focuses on WTO provisions relating to situations referred to in
paragraphs 17 (b)-(d) above.  In particular, it focuses on WTO provisions relating to procedural
fairness where there is an allegation that a private party has engaged in conduct that involves some
measure of wrong-doing or is otherwise actionabl e and where remedies are being sought.  It also
covers WTO procedural fairness provisions applicable to procedures for review of administrative
decisions.
20. The relevant WTO provisions are addressed in the note under the following headings:
(a) some general aspects of procedural fairness;
(b) access to justice/action by the authorities;
(c) characteristics of the authorities to which recourse can be had;
(d) notice of the initiation of proceedings;
(e) information on applicable rules, provisions and requirements;
(f) access to evidence put forward by authorities and other parties;WT/WGTCP/W/231
Page 8
(g) right to be heard, including the right to submit evidence and the right to respond to
allegations and concerns;
(h) obligations to disclose evidence;
(i) right to be represented;
(j) provisional measures;
(k) main characteristics of decisions on the merits;
(l) right of review/existence of an appeal mechanism;  and
(m) protection of confidential information.
A. GENERAL ASPECTS OF PROCEDURAL FAIRNESS
1. Transparency
21. As will be clear from the paragraphs below,  many procedural fairness requirements are
closely related to the principle of transparency.26  Some WTO Agreements specifically provide for a
transparency requirement.  For instance, under the Agreement on Government Procurement, "[e]ach
Party shall provide… transparent and effective pr ocedures enabling suppliers to challenge alleged
breaches of the Agreement arising in the context of procurements in which they have, or have had, an
interest."27  The Agreement on Subsidies and Countervailing Measures provides that "any method used
by the investigating authority to cal culate the benefit to the recipient conferred…  shall be provided in
the national legislation or implementing regulations of  the Member concerned and its application to each
particular case shall be transparent and adequately explained".28  The Agreement on Preshipment
Inspection provides that "[u]ser Members shall ensure that preshipment inspection activities are
conducted in a transparent manner."29
2. Non-discrimination
22. As a general rule, the WTO national treatment and MFN rules apply to procedural
requirements.  Further, some WTO Agreements specifically apply a non-discrimination standard to
procedures of the sort under review in this note.  For instance, the Agreement on Government
Procurement provides that "[e]ach Party shall provide non-discriminatory… procedures enabling
suppliers to challenge alleged breaches of the Agre ement arising in the context of procurements in
which they have, or have had, an interest."30
3. Timeliness
23. Some procedural fairness provisions relate to the overall timeliness of procedures.  For
instance, Article 41.2 of the TRIPS Agreement provides that "[p]rocedures for the enforcement of
intellectual property rights… shall not… entail unreasonable time-limits or unwarranted delays."
Similarly, the Agreement on Preshipment Inspection provides that "[u]ser Members shall ensure that
                                                     
26 See, in particular, the paragraphs addressing notices of the initiation of proceedings;  information on
applicable rules, provisions, and requirements;  access to evidence put forward by authorities and other parties;
provisional measures;  and main characteristics of decisions on the merits.
27 Article XX:2 GPA.
28 Article 14.1 SCM.
29 Article 2.5 of the Agreement on Preshipment Inspection.
30 Article XX:2 GPA.WT/WGTCP/W/231
Page 9
preshipment entities avoid unreasonable delays in inspection of shipments."31  Some other provisions
require the timeliness of individual stages of procedures, such as anti-dumping and countervailing
duty investigations32 or review.33  Certain WTO Agreements prescribe a specific maximum length of
time available for certain procedural steps,34  while certain provisions set out a minimum deadline for
the relevant procedural steps, for instance for certain steps in investigations35 or the initiation of
review procedures.36
4. Indemnification
24. The TRIPS Agreement prescribes that "judicial au thorities shall have the authority to order a
party at whose request measures were taken and who has abused enforcement procedures to provide
to a party wrongfully enjoined or restrained adequa te compensation for the injury suffered because of
such abuse."37
B. ACCESS TO JUSTICE /ACTION BY THE AUTHORITIES
25. One aspect of this issue concerns WTO provisions that relate to the possibility for an
interested party to obtain the initiation of action to remedy a practice by another party which the first
party considers to involve a measure of wrong-doing or to be otherwise actionable.  These include
both private rights of action and the possibility to obtain the initiation of procedures by public
authorities on petition by private parties.  The main agreements where this issue arises are the TRIPSAgreement and the Agreements on Anti-Dumping Measures and Subsidies and Countervailing
Measures.
26. The TRIPS Agreement handles this issue in three ways:
(a) It requires the provision of a private right of action under civil law before the judicial
authorities against any act of infringement of intellectual property rights covered bythe Agreement.
38
(b) In regard to counterfeit trademark and pirated copyright goods, it stipulates that right
holders must have the right to seek, through administrative or judicial channels,
action by the customs authorities to suspend the importation of such products.
Certain conditions have to be met.  The Agreement does not explicitly state that therequest would have to be accepted if these conditions have been met, but provides
that the competent authorities shall inform  the applicant within a reasonable period
whether they have accepted the application.
39
(c) In regard to criminal procedures, the TRIPS Agreement requires that Members
provide for such procedures and penalties to be applied at least in cases of wilful
trademark counterfeiting or copyright piracy on a commercial scale.  It does not
explicitly address the issue of the extent to which the relevant public authorities
                                                     
31 Article 2.15 of the Agreement on Preshipment Inspection.
32 Articles 5.10 AD and  11.11 SCM.
33 Articles 11.4 AD and 21.4 SCM.
34 Article XVIII:1 GPA.
35 Articles 6.1.1 AD and 12.1.1 SCM.
36 Article XX:5 GPA.
37 Article 48.1 TRIPS.
38 Article 41.1 TRIPS.
39 Article 51 TRIPS.WT/WGTCP/W/231
Page 10
would have to take to initiate such ac tion in response to complaints from right
holders.40
27. As regards the initiation of action against allegedly dumped or subsidised imports that might
lead to the imposition of anti-dumping or countervailing duties, the WTO agreements in these areas
specify, in a fair degree of detail, the requirements that Members should ensure are met before aninvestigation is initiated, for example in regard to the evidence to be submitted by the requesting
domestic industry and the standing of the requesting party to represent the domestic industry.
41  They
provide that an interested party – that is to say the domestic industry of a Member – has the right to
request the relevant authorities in that  Member to initiate an investigation42 but they do not require
that an investigation must actually be initiated on the basis of such a request.  In this regard, it should
be recalled that the underlying purpose of the procedural provisions in these agreements is not to
protect the interests of the domestic industry requesting such an investigation;  rather they are aimedat protecting the legitimate interests of other WTO Members from which products that might be
affected by such an investigation come and the producers, exporters and importers of such products.
28. A second aspect of the question of access to justice/action by the authorities concerns WTO
provisions relating to the initiation of action ex officio  by the public authorities.  The above
paragraphs have already discussed the question of the initiation of action by a public authority inresponse to a complaint from a private party.  The issue discussed here is that of the initiation of
action by the public authorities which is not based on an explicit complaint.
29. In this regard, the TRIPS Agreement contains no explicit requirement for such ex officio
action.  The issue of ex officio  action is addressed in the Section on Special Requirements Related to
Border Measures, but this provision only lays down requirements that the competent authoritiesshould meet before taking ex officio  action and does not require them to initiate such action.
43  I t
might also be recalled that the Section on Criminal Procedures referred to above states that "Members
shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark
counterfeiting or copyright piracy on a commercial scale".44
30. Regarding the initiation of anti-dumping and countervailing duty investigations, the relevant
WTO Agreements explicitly recognise that in sp ecial circumstances such investigations can be
initiated on an ex officio  basis, but do not require any such ex officio  action.  Rather, they specify
requirements that would have to be met before such action is taken.45
C. CHARACTERISTICS OF THE AUTHORITIES TO WHICH RECOURSE CAN BE HAD
31. The GATT and the GATS specify that "judicial, arbitral or administrative tribunals or
procedures"46 must be available for the prompt review and correction of administrative action relating
to customs matters and matters affecting trade in services.  Those Agreements call for such tribunalsor procedures to be independent of the agencies entrusted with administrative enforcement.  The
GATT provides for an exception where pre-existing procedures already provided "for an objective
and impartial review of administrative action even though such procedures are not fully or formally
independent of the agencies entrusted with administrative enforcement".
47  The GATS applies this
possibility to new as well as pre-existing procedures and also provides for an exception where the
                                                     
40 Article 61 TRIPS.
41 Articles 5.2 AD, and 11.2 SCM.
42 Articles 5.4 AD and 11.4 SCM.
43 Article 58 TRIPS.
44 Article 61 TRIPS.
45 Articles 5.6 AD and 11.6 SCM.
46 Articles X:3 (b) GATT and VI:2 (a) GATS.
47 Article X:3 (c) GATT.WT/WGTCP/W/231
Page 11
institution of the tribunals or procedures would be inconsistent with a Member's constitution or
structure or the nature of its legal system.48
32. The Agreement on Government Procurement requires parties to establish mechanisms by
which interested suppliers can challenge alleged breaches of the Agreement in the context of a
procurement.  It requires that the challenges be heard by a court or by "an impartial and independentreview body with no interest in the outcome of th e procurement and the members of which are secure
from external influence during the term of the appointment".
49  If the review body is not a court, the
Agreement provides that either its decisions must be  subject to judicial review or that its procedures
must conform to a number of more detailed requirements of procedural fairness set out in the
Agreement.50  If the review body is a court or its decisions are subject to judicial review, there are no
comparable requirements specified in the Agreement.
33. Most of the enforcement provisions in the TRIPS Agreement relate to the proceedings of
judicial authorities, the characteristics of which are not specified.  The Agreement requires that, if a
final administrative decision has been taken in enforcement proceedings before an administrative
body, parties to the proceeding must have an opportunity for review of the decision by a judicial
authority.  If the procedures concern the acquisition or maintenance of intellectual property rights, or
administrative revocation and inter partes  procedures such as opposition, revocation and cancellation,
final administrative decisions must be subject to review by a judicial or quasi-judicial authority.51
Other formulations in regard to the nature of review bodies can be found in Article 31 on compulsorylicensing which requires that decisions on legal validity and remuneration be subject to judicial
review or other independent review by a distinct higher authority, and in Article 32, which requires
that an opportunity for judicial review of any decision to revoke or forfeit a patent be available.
34. In regard to anti-dumping and countervailing duty investigations, the relevant WTO
agreements do not address the characteristics that the bodies carrying out these investigations should
have.
52  They do, however, require that administrative actions relating to final determinations and
administrative reviews concerning the need for the continued imposition of duties shall be subject to
judicial, arbitral or administrative tribunals or  procedures which must be independent of the
authorities responsible for the determination or review in question.53
D. NOTICE OF THE INITIATION OF PROCEEDINGS
35. The TRIPS Agreement requires that defendants in civil judicial proceedings for the
enforcement of intellectual property rights shall have the right to written notice which is timely and
contains sufficient detail, including on the basis of the claims against them.54  The Agreements on
Anti-Dumping Measures and Subsidies and Countervailing Measures set out that "[w]hen the
authorities are satisfied that there is sufficient ev idence to justify the initiation of an investigation,…
interested parties known to the investigating authorit ies to have an interest therein shall be notified".55
Furthermore, those Agreements provide that "as soon as an investigation has been initiated, the
                                                     
48 Article VI:2 (b) GATS.
49 Article XX:6 GPA.
50 Id.
51 Except in cases of unsuccessful opposition or administrative revocation, provided that the grounds
for such procedures can be the subject of invalidation procedures.  Article 62.4 TRIPS.
52 Footnote 3 to Article 2.2.1 AD provides that "[w]hen in this Agreement the term 'authorities' is used,
it shall be interpreted as meaning authorities at an appropriate senior level."
53 Articles 13 AD and 23 SCM.
54 Article 42 TRIPS.
55 Articles 12.1 AD and 22.1 SCM.WT/WGTCP/W/231
Page 12
authorities shall provide the full text of the writ ten application received… to the known exporters, and
shall make it available, upon request, to other interested parties involved".56
36. Some provisions of the WTO Agreements safe guard against the premature public disclosure
of information about a possible proceeding.  For example, the Agreements on Anti-Dumping
Measures and Subsidies and Countervailing Measures provide that "the authorities shall avoid, unlessa decision has been made to initiate an investigation, any publicising of the application for the
initiation of an investigation".
57  However, once the authorities are satisfied that there is sufficient
evidence to justify the initiation of an investigation, the same Agreements require public notice of the
initiation of the investigation,58 and they prescribe the types of information to be contained in such
notices.59
E. INFORMATION ON APPLICABLE RULES , PROVISIONS AND REQUIREMENTS
37. As mentioned earlier, a basic aspect of procedural fairness that is found in various WTO
agreements is that laws, regulations and requirements of general application should be published and
that this should be done, wherever possible, before they are applied, at least where they involve more
burdensome requirements.  These provisions apply to both substantive and procedural requirements.
Some agreements contain additional provisions regarding the availability of information on
procedures and standards to be applied in legal proceedings.  For example, the Agreement onGovernment Procurement requires, in its Article XX:3, each Party to provide its challenge procedures
in writing and make them generally available.  The Agreement on Subsidies and Countervailing
Measures provides that the method to be used by the investigating authority to calculate the benefit to
the recipient of a subsidy shall be provided for in  the national legislation or implementing regulations
of the Member concerned and that the application of this method by the investigating authority shallbe "adequately explained" to all parties involved.
60  The Agreement on Anti-Dumping Measures
requires the authorities to indicate to the parties in question what information is necessary to ensure a
fair comparison between the export price and normal value in the context of anti-dumping
investigations.61
38. Furthermore, there are a number of other provisions in these agreements setting out
requirements to provide information about specific procedural steps during investigations, including
in regard to the information that authorities require62, on-the-spot investigations63, the inclusion of
non-governmental experts in investigating teams64 and the reasons for not accepting evidence or
information.65
F. ACCESS TO EVIDENCE PUT FORWARD BY AUTHORITIES AND OTHER PARTIES
39. The Agreements on Anti-Dumping Measures and Subsidies and Countervailing Measures
include explicit requirements on access to evidence.  For instance, they require that in the context of
                                                     
56 Articles 6.1.3 AD and 12.1.3 SCM.
57 Articles 5.5 Ad and 11.5 SCM.
58 Articles 12.1 AD and 22.1 SCM.
59 Id.
60 Article 14 SCM.
61 Articles 2.4 and 6.1 AD.
62 For instance,  Articles 6.1 AD and 12.1 SCM, and paragraph 1 of Annex II to the Agreement on Anti-
Dumping Measures.
63 Articles 6.7 AD and 12.6 SCM and paragraphs 1, 3, 5, 7 and 8 of Annex I to the Agreement on Anti-
Dumping Measures, and paragraphs 1 and 3 of Annex VI to the Agreement on Subsidies and Countervailing
Measures.
64 Paragraph 2 of Annex VI to the SCM Agreement, and paragraph 2 of Annex I to the Agreement on
Anti-Dumping Measures.
65 Paragraph 6 of Annex II to the Agreement on Anti-Dumping Measures.WT/WGTCP/W/231
Page 13
anti-dumping and countervailing investigations, "evidence presented in writing by one interested party
shall be made available promptly to other interested parties participating in the investigation."66
Further, in the context of investigations, those Agreements provide that "whenever practicable"67
authorities shall provide timely opportunities for all interested parties to see all information that is
relevant to the presentation of their cases, and that is used by the authorities in an anti-dumping orcountervailing measures investigation.  Moreover, before a final determination is made, authorities
must inform all interested parties of the essential facts under consideration which form the basis for
the decision whether to apply definitive measures.
68  In particular, "[s]uch disclosure should take
place in sufficient time for the parties to defend their interests."69  Further, the Agreements on Anti-
Dumping Measures and Subsidies and Countervailing Measures require that oral information be taken
into account by authorities only in so far as written reproductions thereof have been made available to
other interested parties.70
40. The TRIPS Agreement provides that "defenda nts shall have the right to written notice
which… contains sufficient detail, including the basis of the claims."71  Furthermore, an implicit
requirement of access to evidence can be found in the requirement in the TRIPS Agreement that
decisions on the merits of a case be based only on evidence in respect of which parties were offered
the opportunities to be heard. 72
G. RIGHT TO BE HEARD , INCLUDING THE RIGHT TO SUBMIT EVIDENCE AND THE RIGHT TO
RESPOND TO ALLEGATIONS AND CONCERNS
41. The right to be heard can be found in various WTO Agreements, typically in the form of
provisions regarding the right to make comments,73 to submit information,74 to present views and
make arguments,75 to prepare presentations,76 to substantiate claims,77 to respond,78 and parties' right
to defend their interests.79
42. Most of the Agreements under consideration provide for the right to be heard in the context of
procedures leading to decisions on the merits:
(a) The Agreements on Anti-Dumping Measures and Subsidies and Countervailing
Measures require that, before a final determination is made, the authorities shalldisclose to all  interested parties the essential facts under consideration which form
the basis for the decision whether to apply definitive measures "in sufficient time for
the parties to defend their interests".
80  Further, "the authorities shall whenever
practicable provide timely opportunities for all interested parties… to prepare
presentations"81 on the basis of "information that is relevant to the presentation of
                                                     
66 Articles 6.1.2 AD and 12.1.2 SCM.
67 Articles 6.4 AD and 12.3 SCM.
68 Articles 6.9 AD and 12.8 SCM.
69 Id.
70 Articles 6.3 AD and 12.2 SCM.
71 Article 42 TRIPS.
72 Article 41.3 TRIPS, and by reference to that provision, Article 62.4 TRIPS.
73 Articles 6.10.1, 7.1 (i) and 8.3 AD, and 17.1 (a) and 18.3 SCM.
74 Articles 6.2, 6.12 7.1 (i) AD, and 12.10 and 17.1 (a) SCM.
75 Article 6.2 AD.
76 Articles 6.4 AD, and 12.3 and 19.2 SCM.
77 Articles 42 and 57 TRIPS.
78 Article XX:6 GPA.
79 Articles 6.2 AD and 12.8 SCM.
80 Id.
81 Articles 6.4 AD and 12.3 SCM.WT/WGTCP/W/231
Page 14
their cases, that is not confidential…, and that is used by the authorities"82 in an
anti-dumping or countervailing duty investigation.83  The Agreement on Anti-
Dumping Measures also provides that in order to have a full opportunity for the
defence of their interests throughout anti-dumping investigations, on request, "the
authorities shall… provide opportunities for all interested parties to meet those partieswith adverse interests, so that opposing views may be presented and rebuttal
arguments offered,"
84 although "there shall be no obligation on any party to attend a
meeting, and failure to do so shall not be prejudicial to that party's case."85
(b) In the TRIPS Agreement, Article 41.3 prescribes the right to be heard as a limit on
the evidence that can be relied upon by authorities in decisions on the merits.86
43. Under certain WTO Agreements, parties' right to present evidence is a specific element of the
right to be heard.  For instance, the TRIPS Agr eement requires that all parties to civil judicial
procedures concerning the enforcement of any intellectual property right covered by the TRIPS
Agreement "shall be duly entitled to… present all relevant evidence."87  In a similar vein, the
Agreements on Anti-Dumping Measures and Subsidies and Countervailing Measures provide that all
interested parties in an anti-dumping/countervailing duty investigation "shall be given ample
opportunity to present in writing all evidence which they consider relevant in respect of theinvestigation in question."
88  Further, the Agreement on Subsidies and Countervailing Measures
provides that "it is desirable"89 that Members establish procedures "which would allow the authorities
concerned to take due account of representations made by domestic interested parties whose interests
might be adversely affected by the imposition of a countervailing duty."90
44. A specific aspect of the right to present evidence is stipulated by paragraph 6 of Annex II to
the Agreement on Anti-Dumping Measures, which provides that "[i]f evidence or information is not
accepted, the supplying party should be informed forthwith of the reasons therefor by the authority,
and should have an opportunity to provide further explanations within a reasonable period, due
account being taken of the time-limits of the investigation."91  As a further guarantee in such
situations, "[i]f the explanations are considered by the authorities as not being satisfactory, the reasonsfor the rejection of such evidence or informati on should be given in any published determinations."
92
The Agreement on Government Procurement prescribes the right to present witnesses in the context
of challenge procedures before certain non-judicial bodies.93
H. OBLIGATIONS TO DISCLOSE EVIDENCE
45. The TRIPS Agreement requires that, in civil procedures relating to the enforcement of
intellectual property rights, the judicial authorities must have the authority, where a party to a
proceeding has presented reasonably available evidence sufficient to support its claims and hasspecified evidence relevant to the substantiation of its claims which lies in the control of the opposing
                                                     
82 Id.
83 See also Article 19.2 SCM.
84 Article 6.2 AD.
85 Id.
86 Article 41.3 TRIPS, and by reference to that provision, Article 62.4 TRIPS.
87 Article 42 TRIPS.
88 Articles 6.1 AD and 12.1 SCM.
89 Article 19.2 SCM.
90 Article 19.2 SCM.
91 Paragraph 6 of Annex II to the Agreement on Anti-Dumping Measures.
92 Id.
93 Article XX:6 (f) GPA.WT/WGTCP/W/231
Page 15
party, to order that this evidence be produced by the opposing party, subject in appropriate cases to
conditions which ensure the protection of confidential information.94
46. The TRIPS Agreement also addresses the situation where a party to a proceeding voluntarily,
and without good reason, refuses access to, or otherwise does not provide necessary information
within a reasonable period, or significantly impedes a procedure relating to an enforcement action.  In
such a situation, a Member may accord judicial authorities the authority to make preliminary and final
determinations, affirmative or negative, on the basis of the information presented to them, including
the complaint or the allegation presented by the party adversely affected by the denial of access to
information, subject to providing the parties an opportunity to be heard on the allegations or
evidence.95
47. The Agreements on Anti-Dumping Measures and Subsidies and Countervailing Measures
prescribe that "all interested parties shall be given notice of the information which the authoritiesrequire".
96  Further, under those Agreements, "[i]n cases in which any interested party refuses access
to, or otherwise does not provide, necessary information within a reasonable period or significantly
impedes the investigation, preliminary and final determinations, affirmative or negative, may be made
on the basis of the facts available".97
I. RIGHT TO BE REPRESENTED
48. Article 42 of the TRIPS Agreement states that parties to civil judicial procedures concerning
the enforcement of intellectual property rights co vered by the TRIPS Agreement "shall be allowed to
be represented by independent legal counsel."98  A similar provision can be found in the Agreement
on Government Procurement, which sets out that challenge procedures before a review body that is
not a court and not subject to judicial review shall ensure that participants can be represented andaccompanied.
99
J. PROVISIONAL MEASURES
49. A number of WTO agreements explicitly provide for the possible taking of provisional
measures.100  Given that such measures are taken without a full hearing on the merits, particular
attention is paid in these agreements to procedural safeguards:
- In general, it is required that such measures be preceded by adequate opportunities for
interested parties to submit information and evidence, and to make comments.101  An
exception to this can be found in the TRIPS Agreement which requires that judicial
authorities shall have the authority to adopt provisional measures " inaudita altera
parte " where appropriate, in particular where any delay is likely to cause irreparable
harm to the right holder or where there is a demonstrable risk of evidence being
                                                     
94 Article 43.1 TRIPS.
95 Article 43.2 TRIPS.
96 Articles 6.1 AD and 12.1 SCM.  Under the Agreement on Anti-Dumping Measures, this also covers
the "manner in which such information should be structured", and eventually the medium in which it should be
provided.  Paragraphs 1 and 2 of Annex II to the Agreement on Anti-Dumping Measures.
97 Articles 6.8 AD and 12.7 SCM.  Under the Agreement on Anti-Dumping Measures, such facts
include " those contained in the application for the initiation of the investigation by the domestic industry".Paragraph 1 of Annex II to the Agreement on Anti-Dumping Measures.
98 Article 42 TRIPS also provides that "procedures shall not impose overly burdensome requirements
concerning mandatory personal appearances."
99 Article XX:6 (b) GPA.
100 Articles 50 TRIPS, 7 AD and 17 SCM.
101 Articles 7.1 (i) AD, 17.1 (a) SCM and 50.1 (b) TRIPS.WT/WGTCP/W/231
Page 16
destroyed.102  In such cases, the party subject to the measure must have a right to a
review within a reasonable period.
- Under the TRIPS Agreement, provisional measures should only be taken after a
prima facie  case has been established.103 The Agreements on Anti-Dumping
Measures and Subsidies and Countervailing Measures require that "provisionalmeasures may be applied only if… a preliminary affirmative determination has been
made that [dumping/a subsidy] exists"
104 and that there is injury to a domestic
industry caused by dumped or subsidized imports.
- Under the TRIPS Agreement, judicial authorities must have the authority to order the
party applying for a provisional measure to provide a security or equivalent assurance
sufficient to protect the defendant and to prevent abuse.105
- Some WTO agreements provide for time-limits on the period of application of
provisional measures.106
- The TRIPS Agreement provides that the judicial authorities must have the authority
to order the applicant, upon request of the defendant, to provide the defendant
appropriate compensation for any injury caused by a provisional measure that is
subsequently found not to have been justified.107
K. MAIN CHARACTERISTICS OF DECISIONS ON THE MERITS
50. Certain WTO Agreements include specific provisions on the characteristics that must be met
by decisions on the merits.  For instance, the TRIPS Agreement provides that "[d]ecisions on the
merits of a case shall be based only on evidence in respect of which parties were offered the
opportunity to be heard".108
51. There are various provisions in WTO Agreements requiring that decisions on the merits be
written.  For instance, the TRIPS Agreement provid es that decisions on the merits regarding the
enforcement of intellectual property rights shall "preferably" be in writing.109  Likewise, the
Agreement on Government Procurement requires written opinions and decisions in challenge
procedures before certain non-judicial challenge bodies.110
                                                     
102 Article 50.4 TRIPS.
103 Article 50.3 TRIPS.
104 Articles 7.l AD and 17.1 SCM.
105 Article 50.3 TRIPS.
106 The Agreement on Subsidies and Countervailing Measures specifically prescribes that "[t]he
application of provisional measures shall be limited to as short a period as possible, not exceeding four months."
(Article 17.4 SCM)  While prescribing a similar four-month period, the Agreement on Anti-Dumping Measuresallows the extension to specific longer periods "upon request by exporters representing a significant percentageof trade involved" and/or "[w]hen authorities, in the course of an investigation, examine whether a duty lower
than the margin of dumping would be sufficient to remove injury." (Article 7.4 AD)  The TRIPS Agreement
does not explicitly provide for the length of time for which provisional measures shall be applied but it allowsdefendants to request that provisional measures be re voked or otherwise cease to have effect "if proceedings
leading to a decision on the merits of the case are not initiated within a reasonable period, to be determined bythe judicial authority ordering the measures."  If no such determination is made, the "reasonable period" shallnot "exceed 20 working days or 31 calendar days, whichever is the longer." (Article 50.6 TRIPS).
107 For instance, Articles 50.7 and 56 TRIPS.
108 Article 41.3 TRIPS, and by reference to that provision, Article 62.4 TRIPS.
109 Article 41.3 TRIPS.  See also Article 62.4 TRIPS, which references that provision.
110 Article XX:6 (e) GPA.WT/WGTCP/W/231
Page 17
52. Certain WTO Agreements include explicit requirements that decisions on the merits be
reasoned.  For instance, in general terms, Article 41.3 of the TRIPS Agreement provides that
decisions on the merits shall be "preferably" reasoned.  Further, the Agreement on Subsidies and
Countervailing Measures requires that the public notice of the conclusion or suspension of an
investigation shall include "all relevant information on the matters of fact and law and reasons whichhave led to the imposition of final measures or the acceptance of an undertaking,"
111 "[i]n
particular,… the reasons for the acceptance or rejection of relevant arguments or claims made by
interested Members and by the exporters and importers."112 The Agreements on Anti-Dumping
Measures and Subsidies and Countervailing Measures also specifically describe the kinds of factors to
be taken into account and the criteria to be used when determining the margin of dumping or subsidy,
injury and the causal relationship between the two.113  Moreover, the Agreement on Government
Procurement requires reasoned opinions and decisions in challenge procedures before certain non-judicial review bodies.
114
53. Certain WTO Agreements also include explicit requirements that decisions on the merits be
made known to the parties or be made public.  The TRIPS Agreement provides that written and
reasoned decisions on the merits shall be made available "at least to the parties to the proceeding
without undue delay."115     The Agreement on Subsidies and Countervailing Measures requires the
publication of a public notice of "any preliminary or final determination, whether affirmative or
negative, of any decision to accept an undertaking…, of the termination of such an undertaking, and
of the termination of a definitive countervailing duty."116  In addition to prescribing the types of
information that such notices shall contain, the same provision also establishes the obligation that
such notices and reports "be forwarded… to othe r interested parties known to have an interest
therein."117
54. A final aspect of decisions on the merits is the obligation set out in various provisions of the
WTO Agreements that authorities in some way take into account or consider the information provided
and the arguments advanced by parties while exercising their right to be heard.  For example,
paragraph 3 of Annex II to the Agreement on Anti-Dumping Measures provides that "[a]llinformation which is verifiable, which is appropriately submitted so that it can be used in the
investigation without undue difficulties, which is supplied in a timely fashion, and, where applicable,
which is supplied in a medium or computer language requested by the authorities, should be taken
into account when determinations are made." Furthermore, paragraph 5 of the same Annex provides
that "[e]ven though the information provided may not be ideal in all respects, this should not justify
the authorities from disregarding it, provided the inte rested party has acted to the best of its ability."
As a further example, by providing that "[a]ny selection of exporters, producers, importers or types ofproducts… shall preferably be chosen in consultation with and with the consent of the exporters,
producers or importers concerned",
118 the Agreement on Anti-Dumping Measures requires that
authorities take the views of exporters, producers or importers into account.
L. RIGHT OF REVIEW /EXISTENCE OF AN APPEAL MECHANISM
55. The aforementioned requirements of procedural fairness concern procedures regarding
allegations of wrongdoing or other actionable condu ct before judicial bodies and in administrative
investigations.  Most of the WTO Agreements which provide for procedures of that nature also
                                                     
111 Articles 12.2 AD and 22.5 SCM.
112 Id.
113 Articles 2 and 3 AD and 14 and 15 SCM.
114 Article XX:6 (e) GPA.
115 Article 41.3 TRIPS.  See also Article 62.4 TRIPS, which references that provision.
116 Articles 12.2 AD and 22.3 SCM.
117 Id.
118 Article 6.10.1 AD.WT/WGTCP/W/231
Page 18
provide for the possibility of review by a higher body of first instance decisions by administrative or
judicial tribunals or of the results of investigations in which the interests of different parties are taken
into account.119
56. The relevant WTO Agreements include relatively few and rather limited provisions as to the
actual scope of review/appeal procedures.  For instance, Article 41.4 of the TRIPS Agreementprescribes the minimum scope of review of final administrative decisions by judicial authorities, by
providing that such review shall extend to "at least the legal aspects of initial judicial decisions on the
merits of a case", albeit this is "subject to jurisdictional provisions in a Member's law concerning the
importance of a case".  As already explained in the context of the characteristics of the authorities to
which recourse can be had, the scope and nature of the right of review depends in some instances on
the nature of the first instance proceeding.  Where the first instance proceeding is of an administrative
nature, some of the agreements provide for more requirements.
120
57. While the above paragraphs relate to review/appeal by a higher instance authority or body, it
might also be noted that the Agreements on Anti-Dumping Measures and Subsidies and
Countervailing Measures include provisions on procedures to review the continued application of
definitive anti-dumping or countervailing duties to be conducted by the investigating authority
itself.121  This kind of review is either initiated on request or on an ex officio basis.
M. PROTECTION OF CONFIDENTIAL INFORMATION
58. Some WTO Agreements contain broad, horizontal provisions regarding the protection of
confidential information.  For instance, the GATS provides that "nothing in this agreement shall
require any Member to provide confidential information, the disclosure of which… would prejudice
legitimate commercial interests of particular enterprises, public or private."122  The TRIPS Agreement
provides that civil judicial procedures for the enforcement of intellectual property rights "shall
provide a means to identify and protect confidential information, unless this would be contrary to
existing constitutional requirements."123
59. Some other provisions specifically require the protection of confidential information in the
context of specific stages of procedures.  In the context of notices about the initiation of investigations,the Agreements on Anti-Dumping Measures and Subsidies and Countervailing Measures set out that in
providing the full text of the written applicati on to the known exporters and, upon request, to other
interested parties, "[d]ue regard shall be paid to the requirement for the protection of confidential
information."
124  Some other provisions protect confidential information potentially becoming
available during investigations.125  Further, some provisions protect confidential information in the
context of parties' access to evidence put forward by authorities and other parties.  For instance, under
the Agreements on Anti-Dumping Measures and Subsidies and Countervailing Measures theauthorities are required to request parties to prepare non-confidential summaries of confidential
information.
126  Further, the Agreements on Anti-Dumping Measures and Subsidies and Countervailing
Measures protect confidential information as regards access of parties to evidence and oral
information presented in writing.127  Under the Agreement on Anti-Dumping Measures, similar
                                                     
119 See, for instance, Articles 41.4 TRIPS, 13 AD and 23 SCM.
120 For instance, Articles X:3 (b) and (c) GATT, VI:2 GATS and XX:6 GPA.
121 Articles 11.2 and 11.3 AD and 21.2 and 21.3 SCM.
122 Article III bis GATS.
123 Article 42 TRIPS.
124 Articles 6.1.3 AD and 12.1.3 SCM.
125 Articles 6.5, 6.7 and 12.2.3 AD, 12.4, 12.6 and 22.5 SCM, and paragraph 2 of Annex I to the
Agreement on Anti-Dumping Measures.
126 Articles 6.5.1 AD and  12.4.1 SCM.
127 Articles 6.1.2 AD and 12.1.2 and 12.2 SCM.WT/WGTCP/W/231
Page 19
protection applies with regard to opportunities for all interested parties to meet parties with adverse
interests, so that opposing views may be presented and rebuttal arguments offered.128
60. As shown by most of the aforementioned pr ovisions, the most common way of protecting
confidential information in the relevant WTO Agreements is by establishing direct obligations for
Members and authorities to protect confidential info rmation, and prohibitions to disclose confidential
information.  Some provisions seek to protect confidential information by requiring the imposition of
sanctions on individuals breaching the protection of confidential information.  Paragraph 2 of Annex I
to the Agreement on Anti-Dumping Measures and paragraph 2 of Annex VI to the Agreement on
Subsidies and Countervailing Measures both provide that "[i]f in exceptional circumstances it is
intended to include non-governmental experts in the investigating team… [s]uch non-governmental
experts should be subject to effective sanctions for breach of confidentiality requirements."129  Some
provisions allow the disclosure of confidential information under certain conditions, such as requiringthe approval by the relevant parties of the disclosure of confidential information.  For instance, Article
XIX:4 of the Agreement on Government Procurement provides that "confidential information… shall
not be revealed without formal authorisa tion from the party providing the information."
130  Similarly, the
Agreements on Anti-Dumping Measures and Subsidies and Countervailing Measures require "specific
permission of the party submitting [confidential information]".131 Further, those Agreements provide
that authorities are required to request parties to provide non-confidential summaries of confidential
information but in exceptional circumstances it allows parties not to prepare such a summary where it
is not possible and provided that it is sufficiently reasoned by the party in question.132
61. With regard to the matter or trade secrets, the TRIPS Agreement provides that "natural or
legal persons shall have the possibility to prevent information lawfully in their control from beingdisclosed to, acquired by, or used by others without their consent in a manner contrary to honest
commercial practices"
133 so long as such information is secret, has commercial value because it is
secret and has been subject to reasonable steps by the person lawfully in control to keep it secret.
IV. BENEFICIARIES OF PROCEDURAL FAIRNESS SAFEGUARDS
62. Under the Agreements on Anti-Dumping Measures and Subsidies and Countervailing
Measures, the main provisions on procedural fairness are directed towards protecting the interests of
so-called "interested parties".  These are defined as:
(i) an exporter or foreign producer or the importer of a product subject to
investigation, or a trade or business association a majority of the members of which
are producers, exporters or importers of such product;  and
(ii) a producer of the like product in the importing Member or a trade and business
association a majority of the members of which produce the like product in theterritory of the importing Member.
134
Certain procedural provisions of the Agreement on  Subsidies and Countervailing Measures are also
directed towards the interests of industrial users and consumers of the product under investigation.135
                                                     
128 Article 6.2 AD.
129 Paragraph 2 of Annex I to the Agreement on Anti-Dumping, and paragraph 2 of Annex VI of the
Agreement on Subsidies and Countervailing Measures.
130 Article XIX:4 GPA.
131 Articles 6.5 AD and 12.4 SCM.
132 Articles 6.5.1 and 6.5.2 AD and 12.4.1 and 12.4.2 SCM.
133 Article 39.2 TRIPS.
134 Articles 6.11 AD and 12.9 SCM.  Under Article 6.11 AD, "interested parties" also comprise "the
government of the exporting Member".WT/WGTCP/W/231
Page 20
63. Under the TRIPS Agreement, the beneficiaries are the nationals of other Members, who are
defined as the natural or legal persons of other Members who meet the criteria set out in the main
WIPO conventions dealing with the relevant subject-matter.136
64. Under the Agreement on Government Procurement, the provisions on procedural fairness are
essentially directed towards protecting the interests of the suppliers of other Parties.  Under thatAgreement, the right to invoke challenge procedures is limited to suppliers of Parties who "have, or
have had, an interest"
137 in the procurement in question.
__________
                                                                                                                                                                    
135 Articles 6.12 AD, 12.10 and 19.2 SCM and the footnote 50 to Article 19.2 SCM.
136 Article 1.3 TRIPS.
137 Article XX:2 GPA.