Third Party Rights : Art. 10
刘成伟
【关键词】Section Five
【全文】
IIntroduction
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, “
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, “
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.
IIGeneric 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.
