   
  
WT/DS529/13  
 
14 May 2019 
(19-2934) Page: 1/3 
  Original: English  
 
AUSTRALIA – ANTI -DUM PING MEASURES ON A4 COPY PAPER  
COMMUNICATION FROM T HE PANEL  
The following communication, dated 13 May  2019, was received from the Chairperson of the Panel 
with the request that it be circulated to the Dispute Settlement Body.  
 
_______________  
 
 
On 19 December 2018, at the third party session, the European Union made a request for the third 
parties to be present at the second substantive meeting of the Panel with the parties, later submitted 
in writing on 11 January 2019.  
 
On 24  April 2019, the Panel issued the attached decision  to the parties and third parties.  
 
Paragraph 1(3) of the Working Procedures for the Panel proceedings in the dispute Australia – Anti-
Dumping Measures o n A4 Copy Paper provides in relevant part that "[t]h e Panel will circulate 
preliminary rulings as appropriate." Therefore, I would be grateful if you c ould circulate  this letter 
and the attached decision  to the DSB.  
 
  WT/DS529/13  
 
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AUSTRALIA  – ANTI -DUMPING MEASURE S ON A4 COPY PAPER (DS529)  
DECISION OF THE PANE L CONCERN ING THE EUROPEAN UNION'S  REQUEST FOR THIRD P ARTIES 
TO OBSERVE THE SECON D SUBSTANTIVE MEETIN G OF THE PANEL  
24 April 2019  
1.1.  In the course of its oral statement at the third party session of the current proceeding, which 
took place on 19 December 2018, the Euro pean Union made a request that the third parties be 
allowed to observe the second substantive meeting of the Panel with the parties . 
On 20 December  2018, the Panel asked the European Union to submit its request in writing and 
"indicate what circumstances b efore the Panel warrant granting additional participatory rights to the 
third parties at this stage of the proceeding" as well as explain "how the circumstances before the 
Panel are different from those already considered in paragraphs 1.7 -1.10 of the [Panel's] Decision 
concerning the requests for enhanced third party rights issued on 29 November 2018".1 
1.2.  In its written communication of 11 January 2019 , the European Union request s the Panel to 
allow the presence of the third parties in the room as observers during the second substantive  
meeting  with the parties . In case the Panel decides to pose additional questions to the third parties, 
the European Union contends that the third parties would be better p laced to respond to any such 
questions having observed the exchange of arguments between the parties at the second meeting. 
Regarding the circumstances that have changed from those considered in the Panel's Decision  of 
29 November 2018, the European Union argues that the present request is limited in scope and 
places no additional burden on the parties and that the Panel now has the benefit of having witnessed 
the third party participation during the first meeting  which demonstrated the breadth and depth of  
interest of the third parties in the issues involved and the interactive nature of their interventions , 
and has helped to assist the Panel in its deliberations.  
1.3.  In its communication of 25 January 2019, Indonesia has objected to the 
European  Union's  request. Indonesia points out that , as indicated  in paragraph 1.8 of the 
Panel's  Decision of 29  November 2018, in past cases, additional third party rights were granted over 
the objections of a party "only in exceptional circumstances".  According to Indone sia, since the 
request does not demonstrate a change in the circumstances already considered by the Panel, it 
should be rejected . In Indonesia's view,  the depth and breadth of third parties' interest in the dispute 
do not justify revisiting the Panel's Dec ision Concerning the Requests for Enhanced Third Party 
Rights.  
1.4.  In its communication of 25 January 2019, Australia supports  the European Union's request and 
points  out the active participation of third parties in the third party  session . Relying  on the Pan el's 
Working Procedures which provide that the Panel may pose questions to third parties at any time, 
Australia argues that , should the Panel wish to ask additional questions following the second 
substantive meeting, the third parties would be better infor med to respond to such questions having 
observed that meeting. Australia considers that the presence of the third parties in the room does 
not place any additional burden on the parties.  
1.5.  None of the other third parties have provided any specific comments o n the substance of the 
request. China has indicated that if the Panel were to grant any additional rights to the 
European  Union, China request s to be granted the same additional third party right s. 
1.6.  We note first that the European Union's request seeks thir d party presence at the second 
substantive meeting of the Panel with the parties – a right which is not provided for in the DSU, and 
which the Panel  therefore regard s as an additional or "enhanced" right for third parties. We recall 
that, according to the Appellate Body, "[a] panel's decision whether to grant 'enhanced' participatory 
rights to third parties … falls within the discretionary authority of that panel. Such  discretionary 
                                                
1 Panel communication to the parties (20 December 2018).  WT/DS529/13  
 
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  authority is, of course, not unlimited and is circumscribed, for example, by the requirements of due 
process."2  
1.7.  At the early stage of this proceeding, the Panel considered and declined requests for enhanced 
third party rights in this disput e. In its Decision of 29 November 2018, the Panel set out its 
understanding of panel practices on the issue of enhanced third party rights. Noting 
Indonesia's  objection to the requests for enhanced third party rights, the Panel observed that : 
[I]n past cas es additional third party rights have been granted over the objections of a 
party only in exceptional circumstances such as parallel proceedings involving the same 
measures, where challenged measures had a significant economic effect on third 
parties,  or where certain third parties maintained similar measures that could be 
affected by the outcome of the case.3   
1.8.  In denying the requests, the Panel further noted that:  
None of the parties or third parties have alleged the existence of parallel proceedings 
involving the same measures as the present dispute or indicated that they maintain 
measures similar to the challenged one that could be affected by the outcome of the 
dispute. China, the Russian Federation and Australia have equally not demonstrated the 
existe nce of significant economic effects of the contested measures on third parties or 
presented other similarly compelling circumstances that would suggest that granting 
additional third party rights is warranted.4 
1.9.  The Panel notes that the present request for enhanced third party rights is more limited in 
scope than the prior requests addressed by the Panel in its Decision of 29 November 2018, and the 
Panel does not understand this to be a request to reconsider that decision. While the Panel is mindful 
of the l imited scope of the present request , granting additional rights to third parties beyond those 
provided for in the DSU over the objection of a party nevertheless requires an adequate justification.  
The Panel has taken into account the arguments presented by  the European Union, Indonesia, and 
Australia, and has considered the full record of the dispute up to this point. The Panel also observes 
that in accordance with Article 10.2 of the DSU, third parties in any dispute are understood to have 
a "substantial i nterest" in the case and that the Panel's ability to ask questions of third parties at 
any time is a standard aspect of panel working procedures. In light of these considerations, the 
Panel does not find sufficient justification to distinguish this dispute  from others in which the interests 
of third parties are fully taken into account without affording enhanced participatory rights.  
1.10.   For the above reasons, the Panel declines the European Union's request for third parties to 
be present as observers at the se cond substantive meeting with the parties.  
 
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2 Appellate Body Report, US – 1916 Act , para. 150.   
3 Decision of the Panel concerning the requests for enhanced third party rights  (29 November 2018) , 
para. 1.8. (referring to Panel Reports, EC – Bananas III (Ecuador) , paras. 7.6 -7.9; EC – Bananas III 
(Guatemala and Honduras) , paras. 7.6 -7.9; EC – Bananas I II (Mexico) , paras. 7.6 -7.9; EC – Bananas III (US) , 
paras. 7.6 -7.9; EC – Hormones (Canada) , paras. 8.14 -8.20; EC – Tariff Preferences , Annex A, para. 7; and EU 
– Poultry Meat (China) , paras. 7.40 -7.42; Decisions by the Arbitrators,  EC – Hormones (US) (Arti cle 22.6 – 
EC), para. 7; and  EC – Hormones (Canada) (Article 22.6 – EC), para. 7).  (fns omitted)  
4 Decision of the Panel concerning the requests  for enhanced third party rights (29 November 2018) , 
para. 1.8.   