PROCEDURAL ISSUE

B. PROCEDURAL ISSUE

1. Composition of Delegation

  7.10 At our first substantive meeting with the parties, Korea, citing Article 18.2 of the DSU, stated that there were representatives of the Indonesian paper industry in the Indonesian delegation and requested that they leave the hearing room because access to confidential information submitted by Korea would give them an unfair competitive advantage over their Korean counterparts. Indonesia submitted that it had full discretion with respect to the composition of its delegation in these proceedings and that it had been respecting its obligation under Article 18.2 of the DSU to protect the confidentiality of the submissions made by Korea.

  7.11 In that meeting, we ruled that, as provided in paragraph 15 of our Working Procedures, Indonesia was entitled to determine the composition of its delegation in these proceedings. We also stated that, in accordance with Article 18.2 of the DSU and paragraph 15 of our Working

  Procedures 100 , Indonesia assumed responsibility for its delegation, including respect for the confidentiality of the submissions made by Korea in these proceedings. 101

  97 Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline ("US – Gasoline"), WTDS2ABR, adopted 20 May 1996, DSR 1996:I, 3 at 16.

  98 (1969) 8 International Legal Materials 679.

  7.12 We are cognisant of the need to protect sensitive information in the WTO dispute settlement proceedings, and in particular of the importance of protecting confidential information submitted to the IA in an anti-dumping investigation pursuant to Article 6.5 of the Agreement. We note that at the

  time we made our ruling on this issue 102 , Korea had not identified any specific information for which it sought confidential treatment. 103 Rather, Korea sought to exclude certain representatives of Indonesia from the entirety of the meeting of the parties with the Panel. We further emphasize that we indicated at the meeting our willingness to entertain a request for procedures for the protection of

  specific Business Confidential Information, an offer echoed by Indonesia, 104 but Korea made no such request. We also note that Indonesia subsequently indicated that it would not in any event include

  business representatives in its delegation in the second substantive meeting of the Panel with the parties.

2. Access to Submissions

  7.13 In its second written submission, Korea stated that it would continue to serve its confidential submissions on Indonesia "subject to the understanding that these submissions [would] not be disclosed by Indonesia to anyone other than the relevant Indonesian government officials and to legal advisors of Indonesia who [had] agreed to maintain the confidentiality of information provided to

  them". 105 Indonesia responded that Korea could not unilaterally subject to conditions Indonesia's use of Korea's submissions in the preparation of its case. Korea then requested the Panel to direct

  Indonesia to return to Korea all confidential submissions made by the latter. Korea also indicated that it would serve non-confidential versions of its confidential submissions on Indonesia. We understood this proposition to mean that Korea would submit full confidential versions of its submissions to the Panel, but that only non-confidential versions would be served on Indonesia.

  7.14 Regarding the issue of confidentiality of submissions made by parties to WTO dispute settlement proceedings, we note the following provision in Article 18.2 of the DSU:

  "Written submissions to the panel or the Appellate Body shall be treated as confidential, but shall be made available to the parties to the dispute. Nothing in this Understanding shall preclude a party to a dispute from disclosing statements of its own positions to the public. Members shall treat as confidential information submitted by another Member to the panel or the Appellate Body which that Member has designated as confidential. A party to a dispute shall also, upon request of a

  and the Working Procedures of this Panel, particularly in regard to confidentiality of the proceedings."

  101 We find support for this proposition in the following ruling of the panel in Indonesia – Autos: "We would like to emphasize that all members of parties' delegations -- whether or not they

  are government employees -- are present as representatives of their governments, and as such are subject to the provisions of the DSU and of the standard working procedures, including Articles 18.1 and 18.2 of the DSU and paragraphs 2 and 3 of those procedures. In particular, parties are required to treat as confidential all submissions to the Panel and all information so designated by other Members; and, in addition, the Panel meets in closed session. Accordingly, we expect that all delegations will fully respect those obligations and will treat these proceedings with the utmost circumspection and discretion." (footnote omitted) Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry ("Indonesia –

  Autos "), WTDS54R, WTDS55R, WTDS59R, WTDS64R and Corr.1, 2, 3, 4, adopted

  23 July 1998, DSR 1998:VI, 2201, para. 14.1.

  102 We made an oral ruling on this issue during our first meeting with the parties, which we then sent to

  Member, provide a non-confidential summary of the information contained in its written submissions that could be disclosed to the public."

  7.15 Article 18.2 lays down a general requirement that submissions made by parties to a dispute be treated as confidential by the other parties receiving such submissions. We also note that paragraph

  15 of our Working Procedures contains the same requirement. We do not, however, understand Article 18.2 to prevent a party from seeking advice of individuals, as necessary, for its effective participation in the dispute, provided that any persons consulted are held accountable with respect to

  the provisions of the DSU, including those on confidentiality. 106 We see this as a natural corollary to the proposition that Members are free to determine the composition of their delegations to meetings.

  It would not be logical if Members were allowed to decide which individuals would represent them in their delegations, but not allowed to decide whose services would be utilized in preparation of their cases.

  7.16 Taking into consideration Indonesia's repeated statements that it would respect the confidentiality of Korea's submissions in accordance with Article 18.2 of the DSU and paragraph 15 of our Working Procedures, we see no reason to find that Indonesia has not fulfilled this obligation so far in these proceedings.

  7.17 In respect of Korea's proposal to withdraw its existing submissions and submit non- confidential versions of those submissions to Indonesia, considering the fact that Article 18.1 of the DSU precludes ex parte communications between the Panel and a party, we stated that while we would entertain any request by Korea to withdraw its submissions or to redact from them certain information, in such a case the submissions withdrawn or information redacted would no longer be before the Panel. We further stated that we were fully conscious of the obligations placed on Members by Article 6.5 of the Anti-dumping Agreement, and remain prepared to work with the parties to design ways to protect any information treated as confidential by the investigating authorities in the underlying investigation. Korea, however, failed to request such procedures.

  7.18 We note in this regard that Korea subsequently requested that we exclude certain specific information from the public version of our report 107 , and we have complied with this request.