|
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
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.
|
