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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
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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.”
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