In its statement at the November 21 DSB meeting, the U.S. responds as follows to China's argument that it should be able to "include persons other than government officials" in consultations under the DSU:
24. RIGHT OF A MEMBER TO DECIDE THE COMPOSITION OF ITS DELEGATION FOR CONSULTATIONS: STATEMENT BY CHINA
The United States takes note of China’s statement.
We understand China to assert a so-called “right” for one Member to decide unilaterally to include persons other than government officials in meetings between parties consulting pursuant to Article 4 of the DSU.
Consultations play an important role in helping to resolve a dispute.
Article 4.2 of the DSU provides that “[e]ach Member undertakes to accord sympathetic consideration to and afford adequate opportunity for consultation regarding any representations made by another Member concerning measures affecting the operation of any covered agreement taken within the territory of the former.”28
And Article 4.5 of the DSU provides that “[i]n the course of consultations in accordance with the provisions of a covered agreement, before resorting to further action under this Understanding, Members should attempt to obtain satisfactory adjustment of the matter.”
Thus, consultations are not simply a box-checking exercise.
Rather, they “serve the purpose of, inter alia, allowing parties to reach a mutually agreed solution, and where no solution is reached, providing the parties an opportunity to ‘define and delimit’ the scope of the dispute between them.”29
The DSU text does not specify the right asserted by China to insist that a nongovernmental person be permitted to attend consultations between two WTO Members.
The “right” asserted by China would therefore encompass the ability to force another Member to make statements in the presence of that person.
In addition to not seeing such a right expressed in the DSU, we do not see how insisting on the ability to bring non-governmental persons to consultations, over the objections of the other consulting Members, would serve the aim of consultations.
For instance, if a party to consultations were to indicate they did not think it was helpful or appropriate to include persons other than government officials, insisting on the presence of such non-government persons would not assist in reaching a positive solution to that dispute.
Moreover, what China attempts to frame as a Member’s “right” is essentially a view that its preference concerning the participation of non-governmental persons in consultations meetings must dominate over the preferences of the other consulting Member.
This hardly seems to reflect the cooperative spirit in which consultations should be held. We would consider this an issue – not unlike venue or timing – that the consulting parties in a given dispute should discuss and work out among themselves.
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DSU Article 4 governs consultations, and doesn't say anything about the composition of Members' delegations in these consultations. Thus, there is, in some sense, a "gap" in the rules. We are not dealing with dispute settlement here, so it's not a question for an adjudicator. Nevertheless, in order to answer the question, we need to interpret the DSU. And in doing so, we need to fill the gap.
This leads me to a question about the U.S. criticism of "gap-filling" by the Appellate Body. How exactly do we define "gaps"? Does everyone agree there is a gap with regard to the issue about the delegations for consultations? What are all the different categories of gaps, and how vague do the rules have to be in order for there to be a gap? And assuming we wanted to do so, how would we impose constraints on when gaps should be filled by adjudicators?