Third Party Submissions at the WTO
This guide provides an overview of third party submissions at the World Trade Organization (WTO). It explains: what is a third party; who qualifies as a third party to a dispute; what are the benefits of participating as a third party; enhanced third party rights; and, the limits of what third parties can do.
Author: Inu Manak
What is a third party?
A third party to a WTO dispute is a Member that is neither the complainant or respondent to a dispute, but rather a Member that has a “substantial interest” in the matter at issue and wishes to comment on the factual claims or legal arguments made by the parties to the dispute. Third parties have specific legal rights when it comes to participating in the dispute process.[i] These rights are more substantive than amicus curiae participants, whose opinions need not be taken into full consideration. Specifically, third parties have the unique ability to take part in the initial stage of panel proceedings, and if a panel decision is appealed, third parties to the original panel can also take part in the proceedings of the Appellate Body.
[i] Appellate Body Report, US — Shrimp, para. 101 (WT/DS58/AB/R).
Who qualifies as a third party to a dispute?
Article 10.2 of the DSU states that a Member that has “a substantial interest in a matter before a panel” qualifies as a third party to the dispute. This is different than qualifying for third party participation in consultations, which must be approved by the respondent; for consultations, under DSU Article 4.11, a potential third party must show a “substantial trade interest.” EC — Bananas III clarified that a “substantial trade interest” does not require an explicit legal interest, but the exact meaning of substantial trade interest remains ambiguous. In practice, however, very few requests to join consultations are rejected.
As for participation in the panel proceeding, third parties need only show a “substantial interest” in the dispute at issue. What is a substantial interest? In Korea — Dairy, the panel found that Article 10.2 could not be interpreted to suggest that third parties need to have an “economic interest,” and in fact, that “Members were expected to be largely self regulating in deciding whether any DSU procedure would be ‘fruitful’.”[i] Other Members, could, in fact, have a “systemic interest” in the dispute, which simply means that the Member may be concerned about the general impact of the measure at issue on the overall trading system, and they “plan to raise broader-- and potentially more axiomatic-- issues” or if the dispute “is likely to hinge on the interpretation of untested or politically charged WTO texts...or where domestic legislation is challenged.”[ii] It is important to note that a “systemic interest” is not an alternative claim to a “substantial interest,” but rather a sub-category of it that requires less evidence of direct impact on the third party.
If a Member wishes to exercise third party rights at the panel stage, it must notify the DSB of its interest in the dispute, in writing, within 10 days of the establishment of a panel. The 10 day rule comes from the GATT Council Chairman’s Statement of June 1994,[iii] though in practice Members have made third party notifications after the 10-day period, so long as “the selection and composition of the Panel” is not “adversely affected” and “the Panel process had not been hampered” late notification has been accepted, though it is generally discouraged.[iv]
[i] Panel Report, Korea — Dairy, para. 7.13 (WT/DS98/R).
[ii] Chantal Thomas and Joel P. Trachtman, eds., Developing countries in the WTO legal system (Oxford University Press, 2009).
[iii] Third Party Participation in Panels, Statement by the Chairman of the Council, C/COM/3 of 27 June 1994, page 1.
[iv] Panel Report on EC — Export Subsidies on Sugar (Australia), para. 2.3 (WT/DS265/R).
What are the benefits of participating as a third party?
Why would a Member want to exercise third party rights? First, it is entirely possible that the complaint being brought against a respondent addresses a similar measure that another Member maintains. Therefore, the Member would have a direct interest in the outcome of the proceeding, particularly if it feels the measure is justified. Also, the Member may have a high volume of trade in the covered product or services at issue, or the measure at issue may be something the Member also wishes to challenge, but may not have the capacity to raise a complaint. Here, third party participation allows Members a say without the high costs of bringing the complaint themselves; this is particularly useful for developing country Members.
Perhaps most importantly, acting as a third party gives Members the ability to see the panel process up close, but also to have their opinion on the measure at issue given consideration in the course of the proceedings. Article 10.2 of the DSU states that third parties “shall have an opportunity to be heard by the panel, and to make written submissions to the panel. These submissions shall also be given to the parties to the dispute and shall be reflected in the panel report.” The language of Article 10.2 delineates clear third party rights.
First, third parties have the right “to be heard by the panel,” which takes place at the first substantive meeting of the dispute. This oral meeting is only open to “parties and third parties to the dispute, the panelists, the Secretariat staff supporting the panel, and the interpreters are entitled to attend this meeting.”[i] After the panel has heard from the complainant and respondent, there is a special session designated specifically for third parties where all third parties to the dispute get an opportunity to present their views. Paragraph 6 of the Working Procedures in Appendix 3 notes that all third parties may sit in on this session. Once all parties have had the chance to present their views, the panel and other parties have an opportunity to ask questions for clarification, and the parties are given several days to respond to these questions in writing as well.
The written submissions of third parties are usually a few pages long and comment on the legal and factual arguments of the parties to the dispute. These submissions are kept confidential, but the views of the parties are summarized in the final panel report. In addition, Article 18.2 of the DSU and paragraph 3 of the Working Procedures in Appendix 3 to the DSU notes that third parties are allowed to make their submissions public on their own, if they so choose. Some Members post their submissions online; the EU regularly posts its submissions on the European Commission’s DG Trade website, which provides several good examples of how third party submissions can be formatted.[ii]
Under Article 10.3 of the DSU third parties are also given all the written submissions of the parties to the dispute up until the first meeting of the panel. These documents are helpful to third parties in drafting their written and oral submissions to the panel because they outline the legal and factual arguments being put forward by the complainant and respondent.
US-FSC (Article 21.5 -- EC), clarifies the meaning of Article 10.3 of the DSU, suggesting that all submissions made by the respondent and complainant must be made available to third parties up to the point of the first meeting of the panel:
“third parties must be given all of the submissions that have been made by the parties to the panel up to the first meeting of the panel, irrespective of the number of such submissions which are made, including any rebuttal submissions filed in advance of the first meeting.”[iii]
Third parties therefore have the right to be provided with all such submissions before the first meeting of the panel. The language of Article 10.3 makes clear that this is mandatory.
In addition, if the dispute proceeds to the Appellate Body, Members that were third parties at the panel stage may also provide written submissions within 21 days of the Notice of Appeal being filed; third parties can attend the oral hearing and are also given the opportunity to make an oral statement, similar to the panel stage.
[i] WTO, “The process — Stages in a typical WTO dispute settlement case,” Dispute Settlement System Training Module: Chapter 6, accessed July 4, 2016, https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c6s3p3_e.htm.
[ii] For instance see “First third party submission by the European Communities, WT/DS267 - Subsidies on upland cotton,” (July 15, 2003), accessed July 4, 2016, http://trade.ec.europa.eu/doclib/docs/2004/july/tradoc_117894.pdf.
[iii] US-FSC (Article 21.5 -- EC), para. 245 (WT/DS108/AB/RW).
Enhanced third-party rights
The Appellate Body stated in US-1916 Act that “[u]nder 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.”[i]. However, in some instances, third parties may be granted “enhanced rights” that allow them to participate beyond the rights outlined in relevant DSU articles and appendix. Enhanced third-party rights have been granted only in a handful of disputes, and on a case by case basis.[ii]
For example, in EC-Bananas III, a request was made by several Members for enhanced third party rights, including participation in all proceedings, as well as access to all written submissions of the parties to the dispute. The Panel agreed to allow third parties to observe the second substantive meeting based on the following:
(i) the economic effect of the disputed EC banana regime on certain third parties appeared to be very large;
(ii) the economic benefits to certain third parties from the EC banana regime were claimed to derive from an international treaty between them and the EC;
(iii) past practice in panel proceedings involving the banana regimes of the EC and its member States; and
(iv) the parties to the dispute could not agree on the issue.[iii]
The Panel in US-Large Civil Aircraft (2nd Complaint) denied Brazil’s request for enhanced third party rights, and clarified the generally accepted criteria that would need to be satisfied in order to establish enhanced third party rights, of which it claimed Brazil met neither. The Panel stated:
Previous panels have granted enhanced third party rights on the basis of, inter alia, the significant economic effect of the measures at issue on certain third parties, the importance of trade in the product at issue to certain third parties, the significant trade policy impact that the outcome of the case could have on third parties maintaining measures similar to the measures at issue, at least one of the parties agreeing that enhanced third party rights should be granted, claims that the measures at issue derived from an international treaty to which certain third parties were parties, third parties having previously been granted enhanced rights in related panel proceedings, and certain practical considerations arising from a third party's involvement as a party in a parallel panel proceeding.[iv]
Overall, granting of enhanced third party rights is done on a case-by-case basis, and is determined at the discretion of the Panel based on the general criteria outlined above.
[i] Appellate Body Report, US — 1916 Act, para. 145 (WT/DS136/AB/R; WT/DS162/AB/R).
[ii] For examples of cases see WTO Analytical Index, DSU, Article X, “Table showing decisions on enhanced third party rights requests and factors considered,” accessed July 5, 2016, https://www.wto.org/english/res_e/booksp_e/analytic_index_e/dsu_04_e.htm#article10B4d.
[iii] Panel Reports, EC — Bananas III, para. 7.8 (WT/DS27/R).
[iv] Panel Report, US — Large Civil Aircraft (2nd complaint), para. 7.16 (WT/DS353/R).
What can third parties not do?
Chile — Price Band System, notes that “Third parties to a dispute cannot make claims,” as it is up to the claimant to make its legal argument and the complainant “cannot rely on third parties to do so on its behalf.” Therefore, third parties only comment on the claims as presented, and do not make any additional claims.
 Chile — Price Band System, para. 163 (WT/DS207/AB/R, WT/DS207/AB/R/Corr.1).
Inu Manak, Ph.D. Candidate, Georgetown University Department of Government