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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.”
IIIExtended Third Party Rights: Exercise of Panels’ Discretion
As ruled by the Appellate Body in US-Tax Treatment (DS108)（21.5）, “
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.’
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