While the panel report in Russia – Measures Concerning Traffic in Transit (DS512) is best known for its interpretation of Article XXI of GATT 1994, the report also contains an important ruling relating to transparency in WTO dispute settlement. In this dispute, the EU published its third-party submission on the EU Commission’s website. The Russian Federation objected that, in so doing, the EU breached its confidentiality obligations under Article 18.2 of the DSU by revealing, inter alia, Russia’s “positions” (i.e., its legal arguments).
The panel disagreed with Russia, noting that “We …do not consider that the legal arguments, positions and opinions of parties in WTO dispute settlement are … capable of designation as confidential information” (para. 5.14). The panel emphasized that to treat legal arguments as confidential would undermine the right of a party under Article 18.2 to “disclose statements of its own positions to the public”.
This ruling of course endorses the right of parties and third parties to publish their WTO dispute settlement submissions, without needing to edit them to hide the legal arguments of the other parties. But the panel’s ruling has potential implications beyond that issue. For example, a major impediment to partial open hearings (i.e., hearings where one party’s oral statement is public, while the other party’s is not), has been the perceived need to allow review of the public oral statement in order to redact elements that reveal the other party’s legal positions. This proved in the US-Tuna dispute to be a burdensome process. The logic of the Transit case implies that any need for redaction would be limited to specific information that was designated as confidential.
