WTO Dispute Settlement Mechanism(3)/刘成伟(49)
Appendix 3 to the DSU: WORKING PROCEDURES
“6. All third parties which have notified their interest in the dispute to the DSB shall be invited in writing to present their views during a session of the first substantive meeting of the panel set aside for that purpose. All such third parties may be present during the entirety of this session.”
Under the DSU, as it currently stands, third parties are only entitled to the participatory rights provided for in Arts. 10.2 and 10.3 and paragraph 6 of Appendix 3. As is to be discussed in more detail below.
II Generic Third Party Rights: Interpretation of Art. 10.3
Art. 10.3 of the DSU explicitly limits the right of third parties to receive only the parties' submissions “to the first meeting”.
In normal panel proceedings, two substantive meetings with the parties are held. The DSU and, in particular, paragraphs 5, 6 and 7 of Appendix 3 to the DSU, contemplate “two distinguishable stages” in a proceeding before a panel. The “first stage” comprises the first written submissions by the parties and the first meeting of the panel, while the “second stage” consists of the second written submissions - or “rebuttal” submissions - and the second meeting with the panel. However, no provision of the DSU explicitly requires panels to hold two meetings with the parties, or to oblige the parties to submit two written submissions. In proceedings under Art. 21.5, which are subject to considerably shorter time-frames than applied under Art. 12.8 of the DSU, panels have adopted the practice of holding a single meeting with the parties, rather than two meetings. At the same time, Art. 21.5 panels uniformly have maintained the practice of requiring parties to file two written submissions, i.e. both first and rebuttal submissions to the single meeting. Due to the expedited nature of Art. 21.5 procedures, it is often disagreed as to whether the third party rights under Art. 10.3 of the DSU have been inappropriately limited by Art. 21.5 panels. We will next get down to some of such practice under Art. 21.5.
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