[ 劉成偉 ]——(2003-7-7) / 已閱75093次
I Introduction
The object and purpose of this contribution is to survey the WTO practice in the matter of third party intervention. The focus is directed towards an examination of the rights to which WTO members are entitled, where they are not named as parties to a particular WTO dispute but nevertheless retaining an interest in the dispute and therefore intervene as third parties. However, according to Art. 17.4 of the DSU, “[o]nly parties to the dispute, not third parties, may appeal a panel report”, we therefore focus on the intervention of third parties in panel procedures rather than in appellate review, except to be mindful that the same Article also provides that, “[t]hird parties which have notified the DSB of a substantial interest in the matter pursuant to paragraph 2 of Article 10 may make written submissions to, and be given an opportunity to be heard by, the Appellate Body”.
The rules relating to the participation of third parties in panel proceedings are set out in Art. 10 of the DSU, and, particularly relating closely to third party rights, paragraphs 2 and 3 thereof, and in paragraph 6 of Appendix 3 to the DSU:
Article 10: Third Parties
“1. The interests of the parties to a dispute and those of other Members under a covered agreement at issue in the dispute shall be fully taken into account during the panel process.
2. Any Member having a substantial interest in a matter before a panel and having notified its interest to the DSB (referred to in this Understanding as a ‘third party’) shall have an opportunity to be heard by the panel and to make written submissions to the panel. These submissions shall also be given to the parties to the dispute and shall be reflected in the panel report.
3. Third parties shall receive the submissions of the parties to the dispute to the first meeting of the panel.
4. If a third party considers that a measure already the subject of a panel proceeding nullifies or impairs benefits accruing to it under any covered agreement, that Member may have recourse to normal dispute settlement procedures under this Understanding. Such a dispute shall be referred to the original panel wherever possible.”
Appendix 3 to the DSU: WORKING PROCEDURES
“6. All third parties which have notified their interest in the dispute to the DSB shall be invited in writing to present their views during a session of the first substantive meeting of the panel set aside for that purpose. All such third parties may be present during the entirety of this session.”
Under the DSU, as it currently stands, third parties are only entitled to the participatory rights provided for in Arts. 10.2 and 10.3 and paragraph 6 of Appendix 3. As is to be discussed in more detail below.
II Generic Third Party Rights: Interpretation of Art. 10.3
Art. 10.3 of the DSU explicitly limits the right of third parties to receive only the parties' submissions “to the first meeting”.
In normal panel proceedings, two substantive meetings with the parties are held. The DSU and, in particular, paragraphs 5, 6 and 7 of Appendix 3 to the DSU, contemplate “two distinguishable stages” in a proceeding before a panel. The “first stage” comprises the first written submissions by the parties and the first meeting of the panel, while the “second stage” consists of the second written submissions - or “rebuttal” submissions - and the second meeting with the panel. However, no provision of the DSU explicitly requires panels to hold two meetings with the parties, or to oblige the parties to submit two written submissions. In proceedings under Art. 21.5, which are subject to considerably shorter time-frames than applied under Art. 12.8 of the DSU, panels have adopted the practice of holding a single meeting with the parties, rather than two meetings. At the same time, Art. 21.5 panels uniformly have maintained the practice of requiring parties to file two written submissions, i.e. both first and rebuttal submissions to the single meeting. Due to the expedited nature of Art. 21.5 procedures, it is often disagreed as to whether the third party rights under Art. 10.3 of the DSU have been inappropriately limited by Art. 21.5 panels. We will next get down to some of such practice under Art. 21.5.
For example, in Canada-Milk and Dairy Products (DS103/DS113)（21.5）, all parties and third parties agree that Art. 10.3 of the DSU remains applicable in the Art. 21.5 proceedings, and requires that “third parties shall receive the submissions of the parties to the dispute to the first meeting of the Panel”. The disagreement relates as to whether the third party rights under Art. 10.3 of the DSU have been inappropriately limited by the Panel when it adopted, in accordance with the practice of previous Art. 21.5 panels and in agreement with the parties to this dispute, the following rule in paragraph 8 of this Panel's Working Procedures: “Third parties shall receive copies of the parties' first written submissions”. In this respect, the Art. 21.5 Panel rules as: 1
“[…] [T]he Panel noted that the text of Article 10.3 is clear and requires this Panel to make available to third parties ‘the submissions of the parties to the dispute to the first meeting of the panel’. In the particular context of Article 21.5, panels which, as in this case, request both parties to submit also their rebuttal submissions prior to the first meeting with the parties, the literal reading of Article10.3 clearly requires to make available to third parties also these rebuttal submissions. Even in the different context of normal Article 12 panel proceedings with two meetings with the parties, nothing in the text of Article 10.3 and in the different context of normal Article 12 panel proceedings justifies ignoring the clear textual requirement of Article 10.3 to enable third parties to participate in the first panel meeting with access to all ‘the submissions’ of the parties made up to this point of the panel process. In the particular context of this Article 21.5 Panel proceeding, the term ‘submissions’ in Article 10.3 of the DSU must therefore include the parties' rebuttal submissions.
In the view of the Panel, only this strict compliance with the unequivocal text of Article 10.3 secures that the interests and rights of third parties are ‘fully taken into account during the panel process’ (Article 10.1) in a manner enabling the Panel to ‘make an objective assessment of the matter before it’ (Article 11.1). In the Panel's view, the object and purpose of Article 10.3 of the DSU is to allow third parties to participate in an informed and, hence, meaningful, manner in a session of the meeting with the parties specifically set aside for that purpose. Third parties can only do so if they have received all the information exchanged between the parties before that session. Otherwise, third parties might find themselves in a situation where their oral statements at the meeting become partially or totally irrelevant or moot in the light of second submissions by the parties to which third parties did not have access. Without access to all the submissions by the parties to the dispute to the first meeting of the panel, uninformed third party submissions could unduly delay panel proceedings and, as rightly emphasised by the EC and supported by Mexico, could prevent the Panel from receiving ‘the benefit of a useful contribution by third parties which could help the Panel to make the objective assessment that it is required to make under Article 11 of the DSU’.
The Panel therefore concludes that nothing in the DSU authorises this Panel to restrict the right of third parties to only receive the ‘first’ submissions made on 4 May 2001, and to withhold from the third parties the rebuttal submissions due for 25 May 2001 (i.e. before the first meeting of the panel on 29-31 May 2001). The Panel decides that, pursuant to Article 10.3 of the DSU, third parties have the right to receive all written submissions ‘to the first meeting’, including rebuttal submissions made before that first meeting. Accordingly, the Panel replaces the current sentence in paragraph 8 of its Working Procedures (‘Third parties shall receive copies of the parties' first written submissions’) by the text in Article 10.3 of the DSU: ‘Third parties shall receive the submissions of the parties to the dispute to the first meeting of the panel’. The Panel notes that, pursuant to Article 12.1 of the DSU and paragraph 14 of its Working Procedures, the Panel can amend the Working Procedures after consulting the parties. The Panel considers that, having invited and received comments by the parties regarding the European Communities' request, it has duly consulted with them.”
While in US-Tax Treatment (DS108), during the recourse of Art. 21.5 of the DSU, the Panel issued a decision to the parties refusing the request of the European Communities and stating that: “… we do not consider that Article 10.3 DSU requires that third parties receive all pre-meeting submissions of the parties (including rebuttal submissions) in the context of an accelerated proceeding under Article 21.5 DSU that involves only one meeting of the parties and third parties with the panel.”
The European Communities appeals this interpretive preliminary ruling by the Panel. In the view of the European Communities, this ruling conflicts with Art 10.3 of the DSU and does not respect the rights afforded to third parties under the DSU. According to the European Communities, although panels have a certain discretion to establish their own working procedures, they may not derogate from binding provisions of the DSU, including the requirement in Art. 10.3 of the DSU that “third parties shall receive the submissions of the parties to the dispute to the first meeting of the panel”. In the view of the European Communities, this requirement means that third parties are entitled to receive all written submissions made prior to the first meeting of the panel - even if, as in many proceedings under Art. 21.5 of the DSU, there is only one meeting with the panel. As to this appeal, the Appellate Body rules as: 2
“In this appeal, we must determine whether, in refusing to require that the third parties be given access to the second, ‘rebuttal’, submissions filed prior to the sole substantive meeting with the Panel, the Panel acted inconsistently with any provision of the DSU.
In respect of the provisions of the DSU governing third party rights, we have already observed that, as the DSU currently stands, the rights of third parties in panel proceedings are limited to the rights granted under Article 10 and Appendix 3 to the DSU. Beyond those minimum guarantees, panels enjoy a discretion to grant additional participatory rights to third parties in particular cases, as long as such ‘enhanced’ rights are consistent with the provisions of the DSU and the principles of due process. However, panels have no discretion to circumscribe the rights guaranteed to third parties by the provisions of the DSU.
In this appeal, the European Communities alleges that the Working Procedures adopted by the Panel are inconsistent with the rights afforded to third parties pursuant to Article 10.3 of the DSU, which provides: ‘Third parties shall receive the submissions of the parties to the dispute to the first meeting of the panel.’
Article 10.3 of the DSU is couched in mandatory language. By its terms, third parties ‘shall’ receive ‘the submissions of the parties to the first meeting of the panels’. Article 10.3 does not say that third parties shall receive ‘the first submissions’ of the parties, but rather that they shall receive ‘the submissions’ of the parties. The number of submissions that third parties are entitled to receive is not stated. Rather, Article 10.3 defines the submissions that third parties are entitled to receive by reference to a specific step in the proceedings - the first meeting of the panel. It follows, in our view, that, under this provision, third parties must be given all of the submissions that have been made by the parties to the panel up to the first meeting of the panel, irrespective of the number of such submissions which are made, including any rebuttal submissions filed in advance of the first meeting.
The Panel, however, reasoned that the use of the word ‘first’ in Article 10.3 ‘presupposes a context where there is more than one meeting of a Panel’. The Panel concluded, from this ‘presupposition’, that in proceedings involving a single panel meeting, Article 10.3 ‘must be understood as limiting third party rights in these proceedings to access to the first written submissions only, and as not including access to the written rebuttals’.
In our view, the interpretation of Article 10.3 of the DSU must start from the express wording of the provision. We have noted that the text of Article 10.3 does not limit the number of submissions which third parties may receive prior to the ‘first meeting’. We do not see any reason to ‘presuppose’ that such a limitation applies in cases where the ‘first meeting’ with the Panel proves to be the only meeting. The DSU allows panels the flexibility, in determining their procedures, to request more than one submission in advance of the first meeting, and the DSU also allows for the possibility that panels may, ultimately, hold only one meeting. The text of Article 10.3 applies the same rule in each case - third parties are entitled to receive the submissions to the first meeting.
We read the reference to the ‘first meeting’ as reflecting the flexibility that exists in panel proceedings under the DSU. Thus, in any proceedings, even if only one meeting with the parties is initially scheduled, it cannot be excluded that a second will not be held later. Panels have the discretion to request such an additional meeting with the parties, and the parties can also request such a meeting with the panel at the stage of interim review. The wording of Article 10.3 provides for this flexibility by referring generically to the ‘first meeting’, which may be one of a series of meetings or may be the only meeting.
Our interpretation of Article 10.3 is also consistent with the context of that provision. Article 10.1 directs panels ‘fully’ to take into account the interests of Members other than the parties to the dispute, and Article 10.2 requires panels to grant to third parties ‘an opportunity to be heard’. Article 10.3 ensures that, up to a defined stage in the panel proceedings, third parties can participate fully in the proceedings, on the basis of the same written submissions as the parties themselves. Article 10.3 thereby seeks to guarantee that the third parties can participate at a session of the first meeting with the panel in a full and meaningful fashion that would not be possible if the third parties were denied written submissions made to the panel before that meeting. Moreover, panels themselves will thereby benefit more from the contributions made by third parties and will, therefore, be better able ‘fully’ to take into account the interests of Members, as directed by Article 10.1 of the DSU.
In this regard, we observe that we agree with the panel in Canada - Dairy (Article 21.5 - New Zealand and US), which reasoned that: ‘Third parties can only [participate in an informed and, hence, meaningful, manner] if they have received all the information exchanged between the parties before that session. Otherwise, third parties might find themselves in a situation where their oral statements at the meeting become partially or totally irrelevant or moot in the light of second submissions by the parties to which third parties did not have access. Without access to all the submissions by the parties to the dispute to the first meeting of the panel, uninformed third party submissions could unduly delay panel proceedings and … prevent the Panel from receiving the benefit of a useful contribution by third parties which could help the Panel to make the objective assessment that it is required to make under Article 11 of the DSU.’
For these reasons, we believe that Article 10.3 requires that third parties be provided with all of the submissions made by the parties up to the time of the first panel meeting in which the third parties participate - whether that meeting is the first of two panel meetings, or the first and only panel meeting. Read in this way, Article 10.3 has the same meaning, and can be applied in the same way, regardless of the number of panel meetings that are held in a particular case.
We, therefore, find that, in its decision refusing the European Communities' request to modify Rule 9 of the Panel's Working Procedures, the Panel erred in its interpretation of Article 10.3 of the DSU.”
III Extended Third Party Rights: Exercise of Panels’ Discretion
As ruled by the Appellate Body in US-Tax Treatment (DS108)（21.5）, “[i]n respect of the provisions of the DSU governing third party rights, we have already observed that, as the DSU currently stands, the rights of third parties in panel proceedings are limited to the rights granted under Article 10 and Appendix 3 to the DSU. Beyond those minimum guarantees, panels enjoy a discretion to grant additional participatory rights to third parties in particular cases, as long as such ‘enhanced’ rights are consistent with the provisions of the DSU and the principles of due process”. However, “panels have no discretion to circumscribe the rights guaranteed to third parties by the provisions of the DSU.”3 And as to be shown below, panel practice demonstrates that only in exceptional circumstances have third parties received such extended third party rights.
During the appellate review in EC-Hormones (DS26/DS48), the European Communities contends that, notwithstanding its protest that these decisions affected its rights of defence, the Panel took a number of decisions granting additional third party rights to Canada and the United States which are not justified by Art. 9.3 of the DSU, are inconsistent with Arts. 7.1, 7.2, 18.2 and 10.3 thereof, and were not granted to the other third parties. The European Communities refers to the following decisions of the Panel: first, to hold a joint meeting with scientific experts; second, to give access to all of the information submitted in the United States' proceeding to Canada; third, to give access to all of the information submitted in the Canadian proceeding to the United States; and fourth, to invite the United States to observe and make a statement at the second substantive meeting in the proceeding initiated by Canada. In this respect, the Appellate Body rules as follows:4
“Article 9.3 of the DSU reads as follows: ‘If more than one panel is established to examine the complaints related to the same matter, to the greatest extent possible the same persons shall serve as panelists on each of the separate panels and the timetable for the panel process in such disputes shall be harmonized.’
After examining the procedural course of the two disputes, we consider that four aspects should be underlined. First, both proceedings dealt with the same matter. Second, all the parties to both disputes agreed that the same panelists would serve on both proceedings. Third, although the proceeding initiated by Canada started several months after the proceeding started by the United States, the Panel managed to finish the Panel Reports at the same time. Fourth, given the fact that the same panelists were conducting two proceedings dealing with the same matter, neither Canada nor the United States were ordinary third parties in each other's complaint.
With respect to the decision of the Panel to hold a joint meeting with scientific experts, the Panel explains as follows: ‘Prior to our meeting with scientific experts, we decided to hold that meeting jointly for both this Panel, requested by Canada, and the parallel panel requested by the United States. This decision stemmed from the similarities of the two cases (the same EC measures are at issue and both cases are dealt with by the same panel members), our decision to use the same scientific experts in both cases and the fact that we had already decided to invite Canada and the United States to participate in the meeting with scientific experts in each of the two cases. In addition, we considered that, from a practical perspective, there was a need to avoid repetition of arguments and/or questions at our meetings with the scientific experts. The European Communities objected to this decision arguing that one joint meeting with experts, instead of two separate meetings, was likely to affect its procedural rights of defence. Where it made precise claims of prejudice to its rights of defence, we took corrective action.’
We consider the explanation of the Panel quite reasonable, and its decision to hold a joint meeting with the scientific experts consistent with the letter and spirit of Article 9.3 of the DSU. Clearly, it would be an uneconomical use of time and resources to force the Panel to hold two successive but separate meetings gathering the same group of experts twice, expressing their views twice regarding the same scientific and technical matters related to the same contested EC measures. We do not believe that the Panel has erred by addressing the EC procedural objections only where the European Communities could make a precise claim of prejudice. It is evident to us that a procedural objection raised by a party to a dispute should be sufficiently specific to enable the panel to address it.
The decision of the Panel to use and provide all information to the parties in both disputes was taken in view of its previous decision to hold a joint meeting with the experts. The European Communities asserts that it cannot see how providing information in one of the proceedings to a party in the other helps to harmonize timetables. We can see a relation between timetable harmonization within the meaning of Article 9.3 of the DSU and economy of effort. In disputes where the evaluation of scientific data and opinions plays a significant role, the panel that is established later can benefit from the information gathered in the context of the proceedings of the panel established earlier. Having access to a common pool of information enables the panel and the parties to save time by avoiding duplication of the compilation and analysis of information already presented in the other proceeding. Article 3.3 of the DSU recognizes the importance of avoiding unnecessary delays in the dispute settlement process and states that the prompt settlement of a dispute is essential to the effective functioning of the WTO. In this particular case, the Panel tried to avoid unnecessary delays, making an effort to comply with the letter and spirit of Article 9.3 of the DSU. Indeed, as noted earlier, despite the fact that the Canadian proceeding was initiated several months later than that of the United States, the Panel managed to finish both Panel Reports at the same time.
Regarding the participation of the United States in the second substantive meeting of the Panel requested by Canada, the Panel states: ‘This decision was, inter alia, based on the fact that our second meeting was held the day after our joint meeting with the scientific experts and that the parties to this dispute would, therefore, most likely comment on, and draw conclusions from, the evidence submitted by these experts to be considered in both cases. Since in the panel requested by the United States the second meeting was held before the joint meeting with scientific experts, we considered it appropriate, in order to safeguard the rights of the United States in the proceeding it requested, to grant the United States the opportunity to observe our second meeting in this case and to make a brief statement at the end of that meeting.’
The explanation of the Panel appears reasonable to us. If the Panel had not given the United States an opportunity to participate in the second substantive meeting of the proceedings initiated by Canada, the United States would not have had the same degree of opportunity to comment on the views expressed by the scientific experts that the European Communities and Canada enjoyed. Although Article 12.1 and Appendix 3 of the DSU do not specifically require the Panel to grant this opportunity to the United States, we believe that this decision falls within the sound discretion and authority of the Panel, particularly if the Panel considers it necessary for ensuring to all parties due process of law. In this regard, we note that in European Communities - Bananas, the panel considered that particular circumstances justified the grant to third parties of rights somewhat broader than those explicitly envisaged in Article 10 and Appendix 3 of the DSU. We conclude that, in the case before us, circumstances justified the Panel's decision to allow the United States to participate in the second substantive meeting of the proceedings initiated by Canada.”
However, as to be confirmed in the following paragraphs, enhanced third party rights are granted primarily because of the specific circumstances, although granting enhanced third party rights is part of the discretion of panels under Article 12.1 of the DSU. Panels have no discretion to circumscribe the rights guaranteed to third parties by the provisions of the DSU.
In US-1916 Act (by EC) (DS136), on 2 September 1999, Japan requested to be granted enhanced third party rights in this case. In particular, Japan requested to receive all the necessary documents, including submissions and written versions of statements of the parties and to attend all the sessions of the second substantive meeting of the Panel. At the request of the Panel, the EC and the United States commented on this request. The EC agreed to the request of Japan, provided that the EC's request of a similar nature in the case initiated by Japan concerning the same matter (DS162) would also be accepted. The United States strongly objected to the request of Japan. In the opinion of the United States, enhanced third party rights were not necessary in order to obtain access to the submissions of the parties. In European Communities - Measures Concerning Meat and Meat Products (‘Hormones’), the panel had granted enhanced third party rights essentially because the panel had informed the parties that concurrent deliberations would be conducted in the case initiated by the United States and in the case initiated by Canada. The United States mentioned that it would not support concurrent deliberations in this case and that it could not agree to a request of which the apparent purpose was to provide the third parties with an opportunity to make an additional submission in their own panel process.
On 13 September 1999, the Panel, through its Chairman, informed the parties and third party Japan that it could not accede to the request of Japan. The Panel reserved its right to reconsider the issue in light of subsequent events and informed the parties and Japan that it would address the matter in detail in its findings. The Panel finds as: 5
“The Panel carefully considered the arguments raised by the parties. It notes that, while the DSU does not provide for enhanced third party rights, neither Article 10 of the DSU nor any other provision of the DSU prohibits panels from granting third party rights beyond those expressly mentioned in Article 10. The Appellate Body in the EC - Hormones case confirmed that granting enhanced third party rights was part of the discretion of panels under Article 12.1 of the DSU.
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