RESTRICTED
WORLD TRADE WT/DSB/M/4
16May1995
ORGANIZATION(95-1270)
DISPUTE SETTLEMENT BODY
25April 1995
MINUTES OFMEETING
Held intheCentre William Rappard
on29March 1995
Chairman: Mr.Donald Kenyon (Australia)
Subjects discussed: Page
1. Rules ofprocedure forDispute Settlement Body 1
- Chapter V:Officers 1
2. Standing Appellate Body 2
- Announcement bytheChairman regarding selection ofmembers 2
3. Indicative listofgovernmental andnon-governmental panels 5
- Announcement bytheChairman 5
1. Rules ofprocedure forDispute Settlement Body
- Chapter V:Officers (WT/DSB/W/4)
TheChairman recalled thatatitsmeeting on10February 1995, theDispute Settlement Body
(DSB) hadadopted itsRules ofProcedure contained indocument PC/IPL/9 withtheexception of
provisions concerning observer status forinternational intergovernmental organizations andelection
ofofficers. Ithadbeenagreed thattheDSBwould revert tothese matters onceagreement onthem
hadbeen reached. Following theconsultations heldonthequestion ofofficers anewdraft text
concerning thismatter, contained indocument W/DSB/W/4 wasbeing submitted forconsideration
andapproval bytheDSB. Heproposed thattheDSBapprove thattext.
TheDispute Settlement Body soagreed.
TheChairman alsosaidthatafterthesuccessful conclusion oftheongoing consultations on
thequestion ofobservership forinternational intergovernmental organizations theDSBwould revert
tothismatter.
TheDispute Settlement Body tooknoteofthisinformation.WT/DSB/M/4
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2. Standing Appellate Body
- Announcement bytheChairman regarding selection ofmembers
TheChairman recalled thatatitsmeeting on10February theDSBhadagreed thatsuggestions
ofnames fornominations totheAppellate Body besubmitted totheSecretariat by24March 1995;
thisdeadline hadsubsequently beenextended untilEaster. Alistofsuggested names fortheAppellate
Body wasnowavailable. Consistent withtheprinciple thattheseweresuggested names andnotnational
candidatures, thelistindicated onlythenames andnationalities ofcandidates. Thereference tothe
nationalities ofcandidates didnotmean thattherespective suggestions hadnecessarily beenmade by
thecountry indicated inbrackets. Thecurricula vitae(CV's)ofthepersons proposed fortheAppellate
Body wereavailable forconsultation intheCouncil Division. Hewassatisfied thatthelistofsuggested
names fortheAppellate Body wasbefore theDSBwithin theagreed time-frame andhoped thatthe
restoftheselection process would behandled justasexpeditiously. Heoutlined afewkeyprinciples
andmajor elements onwhich theselection process ofcandidates fortheAppellate Body would bebased.
Firstandforemost theprocess ofselection wasnotanelection: i.e.,thebestpeople weretobesought.
TheDisputeSettlementUnderstanding(DSU)andPC/IPL/13setoutspecificguidelinesontheexpertise
andqualifications required ofAppellate Body members andwereclearthattheselection process must
focus onsecuring persons ofthehighest calibre capable ofresolving "issues oflawcovered inthepanel
report andlegalinterpretations developed bythepanel".1
Herecalled thattheDirector-General, theChairman oftheDSB, theChairman oftheGeneral
Council andtheChairmen oftheGoods, Services andTRIPs Councils would jointly propose
appointments totheAppellate Body forconsideration bytheDSB. The"Group ofSix"would be
exercising thismandate strictly inaccordance withtheinstructions provided intheguidelines contained
inPC/IPL/13. Once delegations hadstudied thelistofcandidates fortheAppellate Body andtheir
CV's,theymight haveviews which theywould wishtohavetaken intoaccount onthemostappropriate
appointees. Itwould beuseful forthe"Group ofSix"tohavesuchviews atanearly stage ofthe
selection process. He,therefore, proposed thatdelegations wishing todososhould make theirviews
known. Tothiseffect, heandtwoorthreeothermembers ofthe"Group ofSix"would make themselves
available during thefirsttendaysofMay1995inorder tomeetwithinterested delegations. Thisprocess
should begin fromWednesday 3May1995which would provide afullweek fromthepresent meeting
fordelegations tostudy thelistofsuggested names andtheCV's.Indiscussions withdelegations he
would focus ontwospecific questions: (i)which ofthesuggested names onthelist-apart, ofcourse,
fromindividual delegations 'ownsuggestions -theyconsidered themostappropriate appointees tothe
Appellate Body; (ii)whyagainst theguidelines setoutinArticle 17oftheDSU andPC/IPL/13 they
consider these persons themost appropriate appointees totheAppellate Body? Heconsidered that
delegations which hadsuggested names believed thattheircandidates possessed thequalities identified
intheabove-mentioned guidelines. He,therefore, wasinterested intheviews ofindividual delegations
astowhich othernames onthelistbestlinedupagainst theselection guidelines andwhy. TheSecretariat
would inform members ofarrangements concerning theseconsultations inthenextfewdays. Following
theseinitial contacts withdelegations the"Group ofSix"would begin theprocess offormulating specific
proposals forconsideration bytheDSBonappointments totheAppellate Body, andhewould consult
further onstepstobefollowed atlaterstages intheselection process. Hereiterated thathisobjective
wastosubmit thejointproposals bythe"Group ofSix"forconsideration bytheDSBatitsmeeting
on31May1995. Hewished tohavethecooperation ofalldelegations inorder toensure thatthe
confidentiality oftheprocess ofselection ofcandidates fortheAppellate Body wasrespected.
Therepresentative ofBrazil saidthatitwasthetimetocomplete theprocess ofselection of
candidatesfortheAppellateBody.Thelonglistofcandidates,circulatedatthepresentmeeting,indicated
1Article 17:6oftheDSUWT/DSB/M/4
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theinterest thatmany countries andindividuals hadinserving ontheAppellate Body. Astothe
principles concerning theprocess ofselection heagreed withtheneedtofocus ontheprocedural steps
outlined bytheChairman. Intheselection process itwasalsoimportant tomaintain areasonable degree
oftransparency andtherefore itwasnecessary tohaveawide access tothedocumentation andthe
CV'sofcandidates. Withregard totherepresentative balance oftheAppellate Body, itscomposition
should notonlyreflect different geographic regions butalsodifferent legalsystems. Inanycollective
body, andespecially inabody which wassupposed toprovide impartial assessments andthe
understanding oftraderelations ortradedisputes between different countries andwhere different systems
prevailed, itwasnecessary thatsuchdiversity wasreflected. Hewished tohavesome clarification
onhowthe"Group ofSix"intended toensure theappropriate distribution ofthecomposition ofthe
Appellate Body.
Therepresentative ofJapan expressed support fortheapproach inselecting theAppellate Body
members asoutlined bytheChairman. However, heenquired whatkindofschedule wasintended
fortheselection ofthesupport stafftotheAppellate Body. Hestressed thatJapan attached great
importance totheindependence ofthesupport stafffrom theSecretariat andequally, ifnotmore
importantly, toitsneutrality andcredibility.
Therepresentative ofNorway expressed hiscountry 'ssupport fortheapproach totheselection
process outlined bytheChairman. Hedrewattention tothefactthatonthelistofnames ofcandidates
totheAppellate Body there werethirteen nominations fromEuropean Community members andthat
eachname hadareference toboththeCommunity andtheindividual country. Hewished toknow
howthisshould beinterpreted. Iftheyrepresented theCommunity, whether thiswould mean that
ithadmade twice asmany suggestions fortheAppellate Body which wassupposed tobecomposed
ofseven members, orwhether thiswould mean thattheCommunity itself would prioritise among
thethirteen, orwhether thiswasjustanindication thatthose countries weremembers oftheEuropean
Community.
Therepresentative oftheEuropean Communities saidthattheCommunity essentially hadno
objection totheapproach suggested bytheChairman fortheprocess ofselection ofcandidates tothe
Appellate Body. Thefirstandforemost wasnotsomuch thenumber ofvotes oralobbying system
which would takeMembers away fromthechoice ofthebestcandidates buttoensure thattheAppellate
Body becomprised ofpersons whose qualities wereunquestionable andcorresponded totheselection
criteria previously decided upon. Ofcourse, those selected mustcome fromcountries which ratified
theWTO Agreement. Withregard tothequestion byNorway hesaidthatthefactofbeing amember
oftheCommunity didnottakeaway fromtheproposed candidates theirnationalities. There wasno
hidden element inthepresentation ofthese names. Heconfirmed that,asindicated previously, the
choice ofcandidates would bedoneonthebasisofthequalities ofeachcandidates. Finally, heenquired
whether theDSBitselfortheGeneral Council would adopt thefinaldecision concerning theselection
ofmembers totheAppellate Body.
Therepresentative ofIndia saidthatallMembers hadthecommon interest andobjective in
ensuring thebestpossible composition oftheAppellate Body onthebasis ofquality, knowledge and
integrity. Theprocedure outlined bytheChairman appeared, prima facie, adequate. Given thegreat
numberofsuggestednamesandthefactthatMemberswouldhavetologically,consistentlyandrationally
explain thebasis oftheirsuggestions tothe"Group ofSix"itmight benecessary toobtain copies of
theCV'softhecandidates. Therefore, copies ofCVsshould bemade available tointerested delegations.
Therepresentative ofMexico saidthathisdelegation agreed totheproposed time-table with
regard totheprocess ofselection ofcandidates totheAppellate Body outlined bytheChairman and
stressed theneedtoavoid thatprocess tobecome politicized orasortofvoting which would notbe
effective inensuring themost appropriate candidates. Hewondered whether asking forviews ofWT/DSB/M/4
Page4
delegations onnames ofcandidates, assuggested bytheChairman, wasthebestprocedure since it
might leadtoaprocess whereby many names would berepeated many times. Hesuggested thatit
might beuseful toenquire whysuchnames wereproposed. Hisdelegation attached greatimportance
totherepresentative balance bothinterms ofcharacteristics ofthefuture members oftheAppellate
Body aswellasqualities contained inparagraph 6ofPC/IPL/13. Inthiscontext, hehighlighted the
following factors: different geographical areas, levels ofdevelopment andlegal systems. Inorder
toavoid anirrational selection method andtohaveamembership which wasasefficient aspossible
itmight beuseful tohavetheexchange ofviews onpossible methods ofwork inorder tohelpthe
"Group ofSix"tomove asfaraway aspossible fromaprocedure which might looklikeavote. Perhaps
attheappropriate timeitwould bepossible toexchange views onpurely procedural aspects ofthe
process inorder toavoid some ofthese risks. Thefactwasthatallcandidates hadanationality and
thiscould sometimes provoke certain problems. Hethenreferred tothequestion bytheCommunity
concerning theapproval ofthecomposition oftheAppellate Body andsaidthathisdelegation 's
understanding wasthatthe"Group ofSix"would submit aproposal totheDSBbutthedecision was
notinthehands ofthe"Group ofSix"butrather inthatoftheDSBasawhole.
Therepresentative ofUruguay saidthatthediscussion atthepresent meeting highlighted the
importance ofthemembership oftheAppellate Body. Thisissuewasdelicate because theeffectiveness
ofthecommitment undertaken byallcontracting parties intheWTO Agreement could beaffected.
Furthermore, suchappointments were made forthefirsttimewhich constituted aprecedent onthe
methods ofwork andthiscould affect thefuture ofthisorganization. Hisdelegation welcomed the
statements which reflected ahighdegree ofprecaution inorder tomaintain theobjectivity, transparency,
andpurity oftheselection process which wasnotatraditional exercise. Thisprocess wasastrictly
qualitative onewhere thebestpersons weresought interms oftheirlegaltraining andinternational
trade expertise. Uruguay believed thattheideas outlined bytheChairman weresufficient toensure
transparency, objectivity ofthisprocess andwaspleased thatveryprecise andfirmprinciples would
guide theselection process.
Therepresentative ofMorocco drew attention tothefactthattheMoroccan candidate whose
name hadbeensubmitted onemonth agowasnotonthelistcirculated atthepresent meeting. He
therefore, asked theSecretariat tocorrect thiserror. Heshared theviews expressed bytheChairman
concerning theneedtoensure transparency, qualitative dimension oftheprocess ofselection, and
theneedtoensure thatdifferent legalsystems were represented.
TheChairman thanked delegations fortheirstatements andtheirsupport fortheprocedure
thathadbeenoutlined inorder toensure thattheselection process wasobjective. Heassured Morocco
thattheomission pointed outbyitsrepresentative would becorrected. With regard totheneedto
ensure arepresentative balance, hereiterated thatthe"Group ofSix"would beconducting theselection
process strictly inaccordance withtheprovisions provided intheDSUandPC/IPL/13. Henoted that
thejobpositions forthesupport stafffortheAppellate Body hadbeenadvertised andtheSecretariat
wascurrently intheprocess ofexamining individual applications. Inthiscontext, hestressed that
onemustensure thattheappointments ofthesupport staffwerehandled withequal careastheselection
oftheAppellate Body members. Herecalled that,aspreviously agreed, hewould beinvolved inthe
process ofselection ofthesupport staff. Hereiterated thatthe"Group ofSix"would propose aslate
ofcandidates forconsideration bytheDSBacting astheGeneral Council. Inother words there was
nolegaldistinction between theGeneral Council andtheDSB. Therefore, thefinaldecision would
betaken bytheDispute Settlement Body. Duetotheamount ofpaper involved itwould bemorepractical
tomake theCV'savailable todelegations whowishtoconsult them intheSecretariat and,ofcourse,
toprovide them withcopies. Astothequestion raised byMexico concerning theexchange ofviews
ontheworking methods forthe"Group ofSix"hereiterated thatinaddition tothespecific stepsoutlined
atthepresent meeting forinitial stages oftheselection process hewould beconsulting onfurther
steps tobetaken induecourse.WT/DSB/M/4
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TheDispute Settlement Body tooknoteofthestatements.
3. Indicative listofgovernmental andnon-governmental panels
- Announcement bytheChairman
TheChairman, speaking under "Other Business", saidthatanoteontheadministration ofthe
indicative listofgovernmental andnon-governmental panelists, prepared bytheSecretariat aspreviously
agreed attheinformal consultations heldon24March 1995andtheDSBmeeting on29March 1995,
wasavailable intheroom forconsideration bydelegations. After having studied thisnote,delegations,
wereinvited tosubmit theircomments totheSecretariat by10May1995sothatthisnote, which was
meant tobeaguideline fordelegations, could beissued asadocument forconsideration bytheDSB
atitsnextmeeting on31May1995.
TheDispute Settlement Body tooknoteofthisinformation.