World Trade

WT/DS46/R
14 April  1999
(99-1402)
Original: English

ANNEX 1

PROCEDURES GOVERNING BUSINESS CONFIDENTIAL INFORMATION AND DECLARATION OF NON-DISCLOSURE

PROCEDURES GOVERNING BUSINESS CONFIDENTIAL INFORMATION

I. BASIC PRINCIPLE

1. The treatment of information as Business Confidential under these procedures imposes a substantial burden on the Panel and the parties. The indiscriminate designation of information as Business Confidential could limit the ability of a party to fully include in its litigation team individuals who have particular knowledge and expertise relevant to presenting the party's case, impede the work of the Panel and complicate the Panel's task in formulating credible public findings and conclusions. Finally, the Panel recalls that all WTO Members are obliged under Article 25.9 of the SCM Agreement to provide information regarding the nature and extent of any subsidy "in a comprehensive manner" and with "sufficient details to enable the other Member to assess their compliance with the terms" of the SCM Agreement. Accordingly, while the Panel recognizes that the parties have a legitimate interest in protecting sensitive Business Confidential information, the Panel expects that parties will exercise the utmost restraint in designating information as Business Confidential.

II. DEFINITIONS

"approved person" means

i) a Panel member;

ii) a representative;

iii) a Secretariat employee; or

iv) a PGE member, who has filed with the Chairman of the Panel a Declaration of Non-disclosure.

"conclusion of the Panel" means when, pursuant to DSU Article 16.4, the Panel report is;

i) adopted;

ii) not adopted; or

iii) the Panel report is appealed and the report of the Appellate Body is adopted.

"Business Confidential information" means any information that has been designated as Business Confidential by the party submitting the information, and that is not otherwise available in the public domain.

"Declaration of Non-disclosure" means a copy of the declaration set out in Annex II, signed and dated by the person making the declaration.

"designated as Business Confidential" means:

i) for printed information, clearly marked with the notation ‘BUSINESS CONFIDENTIAL INFORMATION’ and with the name of the party that submitted the document;

ii) for binary-encoded information, clearly marked with the notation ‘BUSINESS CONFIDENTIAL INFORMATION’ on a label on the storage medium, and clearly annotated with the notation ‘BUSINESS CONFIDENTIAL INFORMATION’ in the binary-encoded files; and

iii) for uttered information, declared by the speaker to be "Business Confidential information" prior to the disclosure.

"dispute" means Canada's challenge to certain Brazilian measures under Article 4 of the WTO Agreement on Subsidies and Countervailing Measures, WT/DS46, entitled "Brazil – Export Financing Programme for Aircraft".

"DSU" means the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes.

"Geneva mission" means the buildings and grounds of Brazil and Canada at Ancienne Route 17B, 1218 Grand-Saconnex and Rue du Pré-de-la-Bichette 1, 1202 Geneva, respectively.

"information" means:

i) printed information;

ii) binary-encoded information stored in computer diskettes, computer disc drives, CD roms, or other electronic media; or

iii) uttered information, including without limiting the generality of the foregoing, offers, agreements, reports, forecasts, compilations, studies, plans, presentations, charts, graphs, pictures and drawings.

"Panel" means the WTO panel established pursuant to DSU Article 6 by the 23 July 1998 decision of the WTO Dispute Settlement Body to examine the dispute.

"Panel meeting" means a substantive meeting of the Panel with the parties or the interim review meeting of the Panel with the parties, as described in the working procedures of DSU Appendix 3.

"Panel member" means a person selected pursuant to DSU Article 8 to serve on the Panel.

"Panel process" means the process of the Panel as described in DSU Articles 12, 15 and 16, until and including the conclusion of the Panel. "party" means Brazil or Canada. "PGE member" means a person appointed to the Permanent Group of Experts established pursuant to SCM Agreement Article 24, and who has been requested to assist the Panel pursuant to Article 4.5 of the SCM Agreement.

"premises of the WTO" means buildings and grounds of the WTO at Centre William Rappard, Rue de Lausanne 154, Geneva, Switzerland.

"representative" means:

i) an employee of a party;

ii) an agent for all purposes of a party; or

iii) a legal counsel or other advisor of a party,

who has been authorized by a party to act on behalf of such party in the course of the dispute and whose authorization has been notified to the Chairman of the Panel and to the other party, but in no circumstances shall this definition include an employee, officer or agent of a private company engaged in aircraft manufacturing.

"SCM Agreement" means the WTO Agreement on Subsidies and Countervailing Measures.

"Secretariat" means the Secretariat of the World Trade Organization.

"Secretariat employee" means a person employed or appointed by the Secretariat who has been authorized by the Secretariat to work on this dispute and whose authorization has been notified to the Chairman of the Panel, including without limiting the generality of the foregoing, translators and transcribers present at the Panel hearings.

"secure location" means a locked storage receptacle on the premises of the WTO chosen by the Secretariat to provide secure storage for Business Confidential information.

"submit" means:

i) the filing by a party of printed or binary-encoded information at the Secretariat during the dispute;

ii) the filing by a party of printed or binary-encoded information with the Panel during a Panel hearing; or

iii) the uttering of information during a Panel hearing.

"third party" means a Member having notified its interest in the dispute to the DSB pursuant to DSU Article 10.

III. SCOPE

1.These procedures apply to all Business Confidential information submitted during the Panel process.

IV. OBLIGATION ON PARTIES

1. Each party shall ensure that its representatives comply with these procedures.

V. SUBMISSION BY A PARTY

1. When submitting information, a party may designate all or any part or parts of that information as Business Confidential information. Business Confidential information shall be submitted in two copies: one copy of the Business Confidential information shall be submitted to the Secretariat; the other copy of the Business Confidential information shall be submitted to the other party at its Geneva mission.

2. If, taking into the account the Basic Principle stated in Article I, the Panel considers that a party has designated as Business Confidential information which is not reasonably entitled to such treatment, the Panel may decline to consider such information. In such a case, the party submitting the information may, at its discretion:

i) withdraw the information, in which case the Panel and the other party shall promptly return the information to the party submitting it; or

ii) withdraw the designation of the information as Business Confidential.

3. When submitting printed or binary-encoded Business Confidential information, the party shall also provide:

i) a non-Business Confidential edited version, redacted in such a manner as to convey a reasonable understanding of the substance of the information;

ii) a non-Business Confidential summary in sufficient detail to convey a reasonable understanding of the substance of the information; or

iii) in exceptional circumstances, a written statement:

a) that such a non-Business Confidential edited version or non-Business Confidential summary cannot be made, or

b) that such a non-Business Confidential edited version or non-Business Confidential summary would disclose facts that the party has a proper reason for wishing to keep business confidential.

4. If the Panel considers that a non-Business Confidential edited version or summary does not fulfill the requirements of paragraph 3(i) or (ii), or that such exceptional circumstances as justify a statement pursuant to paragraph 3(iii) do not exist, the Panel may decline to consider the Business Confidential information in question. In such a case, the party submitting the information may, at its discretion,

i) withdraw the information, in which case the Secretariat and the other party shall promptly return the information to the party submitting it; or

ii) comply with the provisions of paragraph 3 to the satisfaction of the Panel.

5. When uttering Business Confidential information at a Panel meeting, the speaker shall also provide a brief non-Business Confidential oral statement in sufficient detail to convey a reasonable understanding of the substance of the information that will be uttered.

VI. STORAGE

1. The Secretariat shall store all Business Confidential information submitted in the secure location when not in use by an approved person.

2. Each party shall store all Business Confidential information submitted to it by the other party in a safe in a locked room at the premises of its Geneva mission, when not in use by a representative. Only a representative shall be given authority to unlock the locked room containing the safe, and the locked safe. If requested, either party may visit the other party's Geneva mission to review the proposed location of the safe, and to propose any changes. Any disagreements between the parties regarding the location of the safe, or any other aspect related to the safeguarding of the Business Confidential information will be decided by the Panel.

3. An approved person shall take all necessary precautions to safeguard Business Confidential information when in use.

VII. OBLIGATION NOT TO DISCLOSE

1. Where Business Confidential information has been submitted pursuant to these procedures, no approved person who views or hears such information shall disclose that information, or allow it to be disclosed, to any person other than another approved person, except in accordance with these procedures.

2. The Panel shall not disclose Business Confidential information in its interim and final reports, but may make statements of conclusion drawn from such information.

VIII. DISCLOSURE

1. The Secretariat shall make available for viewing or hearing only on the premises of the WTO any Business Confidential information requested by an approved person.

2. Each party shall promptly, and in a convenient manner, make available for viewing on the premises of its embassy or other diplomatic mission in the capital of the other party or, at the request of a approved person, on the premises of its embassy or other diplomatic mission at some other location, any Business Confidential information requested by an approved person.

3. Business Confidential information stored at the Geneva mission of a party may only be viewed by a representative of that party.

4. An approved person viewing or hearing Business Confidential information may take written summary notes of that information for the sole purpose of the Panel process.

5. Business Confidential information shall not be copied, distributed, or removed from the premises of the WTO, or from the premises of a party's Geneva mission, or from the premises of the embassy or other diplomatic mission referred to in paragraph 2, except as specifically provided in these Procedures.

6. Notwithstanding paragraph 5. above, a Panel member may remove a copy of Business Confidential information from the premises of the WTO. Any copies of Business Confidential information removed from the premises of the WTO by a Panel member shall be used exclusively by that Panel member for the purpose of working on the dispute, and shall be returned to the Secretariat upon conclusion of the Panel. Copies of Business Confidential information removed from the premises of the WTO by a Panel member shall be stored in a locked receptacle.

IX. DISCLOSURE AT A PANEL MEETING

1. A party that wishes to submit Business Confidential information during a Panel meeting may request the Panel to exclude persons who are not approved persons from the meeting. The Panel shall exclude such persons from the meeting for the duration of the submission of such information.

X. DISCLOSURE TO THIRD PARTIES

1. Article 10.3 of the DSU provides that "[t]hird parties shall receive the submissions of the parties to the dispute to the first meeting of the panel." Accordingly, disclosure shall be granted to representatives of third parties of Business Confidential information contained in the first submissions of the parties on the premises of the WTO, or on the premises of an embassy or other diplomatic mission of the party submitting the Business Confidential information consistent with Section VIII, paragraph 2. The provisions of these procedures shall apply mutatis mutandis to any such disclosure.

XI. TAPES AND TRANSCRIPTS

1. Any tapes and transcripts of Panel meetings at which Business Confidential information is uttered shall be treated as Business Confidential information under these procedures.

XII. RETURN AND DESTRUCTION

1. At the conclusion of the Panel the Secretariat and the parties shall:

i) return any printed or binary-encoded Business Confidential information in their possession to the party that submitted such Business Confidential, unless that party agrees otherwise; and

ii) destroy all tapes and transcripts of the Panel hearings that contain Business Confidential information, unless the parties mutually agree otherwise.

2. If the Panel Report is appealed, the Secretariat shall transmit any printed or binary encoded Business Confidential information, plus all tapes and transcripts of the Panel hearings that contain Business Confidential information, to the Appellate Body as part of the record of the Panel proceedings. The Secretariat shall transmit such information to the Appellate Body separately from the rest of the record and shall inform the Appellate Body of the special procedures that the Panel has applied with respect to such Business Confidential information. The parties shall comply with any directive of the Appellate Body regarding disclosure of Business Confidential information to parties or third parties as the Appellate Body may deem appropriate.

DECLARATION OF NON-DISCLOSURE

In accordance with the Procedures Governing Business Confidential information contained Annex I to the Working Procedures of the Panel on Brazil – Export Financing Programme for Aircraft (the Procedures), I agree to the following:

Words defined in the procedures have the same meaning in this Declaration of Non-Disclosure as in the Procedures.

1. I acknowledge having received a copy of the Procedures, a copy of which is attached.

2. I acknowledge having read and understood the Procedures.

3. I agree to be bound by, and to adhere to, the provisions of the Procedures and, accordingly, without limitation, to treat confidentially all Business Confidential information that I may view or hear from time to time in accordance with the Procedures.

Executed on this __________ day of ____________, 1998.

BY: __________________________

Name:

Title:

(Advisors only) Affiliation or employment:

__________

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