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A panel''s decision whether to grant ‘enhanced’ participatory rights to third parties is thus a matter that falls within the discretionary authority of that panel. Such discretionary authority is, of course, not unlimited and is circumscribed, for example, by the requirements of due process. In the present cases, however, the European Communities and Japan have not shown that the Panel exceeded the limits of its discretionary authority. We, therefore, consider that there is no legal basis for concluding that the Panel erred in refusing to grant ‘enhanced’ third party rights to Japan or the European Communities.”
IVSummary and Conclusions
The interpretation of Art. 10.3 of the DSU must start from the express wording of the provision. Art. 10.3 does not say that third parties shall receive “the first submissions” of the parties, but rather that they shall receive “the submissions” of the parties. The number of submissions that third parties are entitled to receive is not stated. Rather, Art. 10.3 defines the submissions that third parties are entitled to receive by reference to a specific step in the proceedings – “the first meeting of the panel”. It follow that, under this provision, third parties must be given all of the submissions, irrespective of the number of such submissions which are made, including any rebuttal submissions filed in advance of the first meeting, 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. However, in respect of the third party rights Art. 10.3 of the DSU only refers to submissions “of the parties”; not to any other submissions such as the expert replies advising the panel.
Only this strict compliance with the unequivocal text of Art. 10.3 secures that the interests and rights of third parties are “fully taken into account during the panel process” in a manner enabling the panel to receive “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”.
As it currently stands under the DSU, third parties are only entitled to the participatory rights provided for in Arts. 10.2 and 10.3 and paragraph 6 of Appendix 3. However, while the DSU does not provide for enhanced third party rights, neither Art. 10 of the DSU nor any other provision of the DSU prohibits panels from granting third party rights beyond those expressly mentioned in Art. 10. Beyond those minimum guarantees, it falls within the sound discretion and authority of panels, under Art. 12.1 and Appendix 3 of the DSU, to grant enhanced third party rights or additional participatory rights to third parties in particular cases, as long as such “enhanced” rights are consistent with the provisions of the DSU, particularly if the Panel considers it necessary for ensuring to all parties due process of law.
Nevertheless, enhanced third party rights have so far been granted largely based on practical reasons and due process had to be preserved. Panel practice shows that only in exceptional circumstances have third parties received such extended third party rights. After all, the DSU differentiates in terms of rights between main parties and third parties and that this principle should be respected in order to keep with the spirit of the DSU in that respect. In short, a panel''s decision whether to grant ‘enhanced’ participatory rights to third parties is thus a matter that falls within the discretionary authority of that panel. Such discretionary authority is, of course, not unlimited and is circumscribed, for example, by the requirements of due process.
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