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We find that no similar circumstances exist in the present matter, which does not involve the consideration of complex facts or scientific evidence. Moreover, none of the parties requested that the panels harmonise their timetables or hold concurrent deliberations in the two procedures (WT/DS136 and WT/DS162). In fact, the European Communities was not in favour of delaying the proceedings in WT/DS136 and the United States objected to concurrent deliberations. We are of the view that, in such a context, we ought to conduct this case independently from the case initiated by Japan both in terms of procedure and of analysis of the substantive issues before us.
We are of the view that respecting due process vis-à-vis Japan did not require the participation of Japan in the second substantive meeting of the Panel. This said, having regard to Article 18.2 of the DSU, we urged the EC and the United States, in the course of the proceedings, to communicate to Japan in due course meaningful non-confidential summaries of their submissions to the Panel, if requested to do so by Japan.
We therefore find that there was no reason to grant enhanced third party rights to Japan in these proceedings.”
While in US-1916 Act (by Japan) (DS162), a similar ruling as to a similar request by the EC, mutatis mutandis, is issued. 6 However, both EC and Japan appeal As to the appeal (DS136/DS162), the Appellate Body rules as: 7
“Although the European Communities and Japan invoke Article 9 of the DSU, and, in particular, Article 9.3, in support of their position, we note that Article 9 of the DSU, which concerns procedures for multiple complaints related to the same matter, does not address the issue of the rights of third parties in such procedures.
Under the DSU, as it currently stands, third parties are only entitled to the participatory rights provided for in Articles 10.2 and 10.3 and paragraph 6 of Appendix 3.
Article 12.1 of the DSU states: ‘Panels shall follow the Working Procedures in Appendix 3 unless the panel decides otherwise after consulting the parties to the dispute.’ Pursuant to Article 12.1, a panel is required to follow the Working Procedures in Appendix 3, unless it decides otherwise after consulting the parties to the dispute.
In support of their argument that the Panel should have granted them ‘enhanced’ third party rights, the European Communities and Japan refer to the considerations that led the panel in European Communities - Hormones to grant third parties ‘enhanced’ participatory rights, and stress the similarity between European Communities - Hormones and the present cases.
The Panel in the present cases gave the following reasons for refusing to grant the European Communities and Japan ‘enhanced’ participatory rights in the panel proceedings: ‘… We conclude from the reports in the EC - Hormones cases that enhanced third party rights were granted primarily because of the specific circumstances in those cases. We find that no similar circumstances exist in the present matter, which does not involve the consideration of complex facts or scientific evidence. Moreover, none of the parties requested that the panels harmonise their timetables or hold concurrent deliberations in the two procedures (WT/DS136 and WT/DS162). In fact, the European Communities was not in favour of delaying the proceedings in WT/DS136 and the United States objected to concurrent deliberations. …’
In our Report in European Communities - Hormones, we stated: ‘Although Article 12.1 and Appendix 3 of the DSU do not specifically require the Panel to grant
] 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.’
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