II. OPEN HEARINGS IN INTERNATIONAL ADJUDICATION: A REVIEW

A brief overview of the law of some of the most important multilateral and regional international courts and tribunals shows that a common feature in international adjudication is public access to their hearings as a rule and confidentiality as the exception. Hearings of the International Court of Justice are public, although the parties may restrain access to the whole or part of hearings by virtue of article 46 of the Statute of the CourtFootnote ² and article 49 of the Rules of the Court.Footnote ³ The same is the case for the International Tribunal for the Law of the Sea, although the Tribunal can deny public access on its own initiative.Footnote ⁴ Public hearings are also contemplated regarding the European Court of Human Rights in Rule 63 of the Rules of the Court, and the Court can decide otherwise on its own motion or at the request of a party or persons concerned.Footnote ⁵

The European Court of Justice has a similar approach in article 31 of the Statute of the Court,Footnote ⁶ as has the Inter-American Court of Human Rights.Footnote ⁷ The Rules of Procedure and Evidence of the International Criminal Court for the Former Yugoslavia contemplate the openness of the hearings of its Trial Chambers in Rule 78, and Rule 79 establishes the discretion to order closed session in the following terms:

1. A) The Trial Chamber may order that the press and the public be excluded from all or part of the proceedings for reasons of:

   1. (i) public order or morality;

   2. (ii) safety, security or non-disclosure of the identity of a victim or witness as provided in Rule 75; or

   3. (iii) The Trial Chamber shall make public the reasons for its order.Footnote ⁸

The International Criminal Court also holds trials in public, though its Statute also provides in article 64.7 that the Court can hold closed sessions to protect confidential or sensitive information.Footnote ⁹ Movement towards transparency also exists in investor–State arbitration, where absolute confidentiality was the unchallenged principle until very recently. For instance, Rule 32(2) of the new ICSID Arbitration Rules establishes, unless either party objects, transparency in hearings as the rule and confidentiality as the exception, when it is required for the protection of proprietary or privileged information.Footnote ¹⁰

As can be seen from this brief summary, openness in hearings is widespread in multilateral and regional inter-state litigation and is making important progress even in investor–State arbitration.

III. THE GATT AND THE ORIGIN OF CLOSENESS WITHIN THE WTO DISPUTE SETTLEMENT SYSTEM

The operation behind closed doors not only of the WTO Appellate Body but also of WTO panels can be traced back to the early years of the General Agreement on Trade and Tariffs (GATT). In effect, at the time of its creation, GATT did not have a dispute settlement mechanism and disputes were solved mainly through diplomatic means only. Inter-state controversies were debated twice a year in the meetings of Contracting Parties, and subsequently developments led to the creation of working parties charged with the responsibility of solving either all or particular disputes,Footnote ¹¹ and made up of delegates of the GATT Contracting Parties involved.Footnote ¹² Their duty was, according to Hudec,

In 1955 the seed of a third party method of dispute settlement was planted thanks to a decision of the GATT Director-General, Eric Wyndham-White, to refer disputes to a panel of experts made up of individuals who would not represent any government and would independently assess the controversy.Footnote ¹⁴ Despite this step in the process of legalization of the GATT dispute settlement mechanism, which was followed by others during the 1960s, 1970s and 1980s, the mechanism preserved a significant diplomatic character, so highlighted by Weiler:

The GATT dispute resolution system always took place behind closed doors, with panellists usually being diplomats themselves, a feature that emphasized and preserved the confidential character of GATT panel proceedings. As Weiler points out:

The Uruguay Round brought about significant changes to the WTO dispute settlement system when compared with that of the GATT, such as the creation of a standing Appellate Body and the virtually automatic adoption of WTO panel reports, which no longer required consensus in order to be adopted. There was an important change from a diplomatic-oriented to a rule-oriented dispute settlement system,Footnote ¹⁷ and some of its features remained similar to international commercial arbitration.Footnote ¹⁸ Despite these significant institutional changes, the WTO dispute settlement system still operated during its first years far from the public eye. However, increased transparency was demanded of the WTO, which started to open up to the world in many senses. Panel and Appellate Body reports were no longer the privilege of few, and complete access to them was, and is, granted through the WTO website the same day the reports were rendered. In addition, the Appellate Body also authorized panels and itself to consider non-solicited amicus curiae briefs,Footnote ¹⁹ which made it possible for non-State actors legally to intervene in panel and appeal proceedings.Footnote ²⁰ Despite this continuing expansion of transparency within the WTO dispute settlement system, panel and Appellate Body hearings remain closed to the public in general, with a very few exceptions being recognized.

IV. THE NEED FOR OPENNESS IN WTO APPELLATE BODY HEARINGS

Former Appellate Body members have highlighted the need for broad public access to appeal hearings. For instance, James Bacchus pointed out the following after leaving the Appellate Body:

Similarly, Mitsuo Matsushi stated regarding openness that:

It was also for these reasons that the Report by the Consultative Board to the then Director-General Supachai Panitchpakdi, the so-called Sutherland Report, suggested broad openness within both panel and Appellate Body proceedings.Footnote ²³

V. THE CURRENT STATE OF THE LAW REGARDING PUBLIC APPEAL HEARINGS: THE APPELLATE BODY'S AUTHORIZATION ON THE BASIS OF PARTIES' REQUEST

Hitherto, the Appellate Body has recognized the possibility of public hearings within appeal proceedings only exceptionally and at the request of the main parties, leaving third parties with the discretion to allow public access to their interventions. This was the outcome of the controversy between the main parties and third parties in United States: Continued Suspension of Obligations in the EC—Hormones Dispute.Footnote ²⁴ There, the main parties, Canada, the European Communities and the United States, asked the Appellate Body to authorize the public observation of the hearing. However, third participants in this case, Brazil, China, India, and Mexico, opposed it on the basis of Article 17.10 of the DSU, which provides that ‘the proceedings of the Appellate Body shall be confidential. …’.Footnote ²⁵ The Appellate Body dealt with this issue by distinguishing the relations between the main parties and the Appellate Body, on the one hand, and between third parties and the Appellate Body on the other.

Regarding the former, and after having broadly defined appeal proceedings as starting with the notice of appeal and ending with the Appellate Body report,Footnote ²⁶ the Appellate Body held that confidentiality under article 17.10 was not absolute, since article 18.2 specifically authorized parties to disclose their statements.Footnote ²⁷ But the Appellate Body went further and underscored that confidentiality had other limitations: notices of appeal and Appellate Body reports were public, and the reports always included detailed summaries of parties' and third parties' submissions.Footnote ²⁸

Then the Appellate Body went on to rule on whether third parties' opposition could prevent main parties from making their statements public during appeal hearings. Based on the above-mentioned distinction, the Appellate Body determined that this was not possible, since third parties' confidentiality was not affected by the main parties' decision to disclose their pronouncements during the hearing.Footnote ²⁹ However, the Appellate Body did not entirely rule out the possibility of confidentiality; if third parties were able ‘to identify a specific interest in their relationship with the Appellate Body that would be adversely affected if we were to authorize the participants’ request…'.Footnote ³⁰

The Appellate Body also held that there was a limit to the scope of public access to appeal proceedings that it could authorize. Public access could be approved so long as it did not put the integrity of the Appellate Body's adjudicative function at risk. The Appellate Body stated:

The following passage summarizes well the approach taken by the AB:

There are three important elements in this Appellate Body analysis relevant for a discussion of the introduction of public appeal hearings as a rule, while ensuring confidentiality to the extent necessary. First of all, confidentiality is not absolute in WTO appeal proceedings. Second, there is the notion of limits to public access: public access can be authorized so long as it does not impair the Appellate Body's adjudicative function. Third, there is the concept of proof of an interest that can be affected if public access is authorized, which plays a role in the possibility of third parties' preventing the main parties' request for openness from succeeding.

How have WTO members reacted to this Appellate Body decision? In European Communities: Regime for the Importation, Sale and Distribution of Bananas—Second Recourse to Article 21.5 of the DSU by Ecuador, Colombia, Jamaica, Japan, Nicaragua, and Panama supported the request made by Ecuador, the United States, and the European Communities, while Brazil opposed it on the grounds discussed above.Footnote ³³ Subsequently, in United States: Continued Existence and Application of Zeroing Methodology, Japan, Norway, and the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu supported public hearings, while Brazil, China, Egypt, India, Mexico, and Thailand opposed them.Footnote ³⁴

This means that public hearings have the support of the so-called Quads: Canada, the European Communities, Japan, and the United States; other developed countries, such as Norway and Chinese Taipei; and some developing countries, such as Colombia, Ecuador, Nicaragua, and Panama. However, powerful developing countries, including Brazil, China, Mexico, and India are against authorizing public hearings. Unsurprisingly, non-governmental organizations have supported the Appellate Body decision. For instance, the Center for International Environmental Law stated:

The public's response to this access was not significant regarding the first hearing in US: Continued Suspension: only eight people registered for it.Footnote ³⁶ However, the hearing in EC—Bananas III saw an important increase in percentage and in numbers: 75 people registered to attend this hearing.Footnote ³⁷ The practice of Appellate Body public hearings is still limited,Footnote ³⁸ but once WTO members start realizing that nothing adverse occurs to those supporting openness, it is expected that some opposing it today will likely and slowly alter their views in this regard.

The state of the law as to public access to appeal hearings having been discussed, a further question is whether there is an interpretation of the DSU that allows the Appellate Body to introduce greater degrees of openness in appeal hearings, in the sense that public hearings are not conditioned to the request of the main parties. In my view such an interpretation may be sustained, as I will show below, but this does not mean that the Appellate Body should immediately take this path. The openness of appeal hearings is undergoing a positive development, and the Appellate Body should wait until WTO members become accustomed to the effects of public hearings before taking the next step in this direction, which is public hearings as a matter of rule, but granting WTO members protection for confidential information and other justified interests.

The question of whether the Appellate Body can free itself from the parties' request has its roots in prior innovations to the WTO dispute settlement system introduced by the Appellate Body. For instance, the appeal of compliance panel reports is not provided for in the DSU. Nonetheless, a bilateral agreement between Brazil and Canada in the dispute in Brazil: Export Financing Program for Aircraft—Recourse by Canada to Article 21.5 of the DSU was enough for the Appellate Body to extend appellate review to compliance panel reports pursuant to article 21.5.Footnote ³⁹ Subsequently, the Appellate Body no longer required parties' agreement to review compliance panel reports, which can now be directly appealed by parties.Footnote ⁴⁰ A similar situation could take place regarding public access to Appellate Body hearings; WTO bilateral agreements initially make it possible, but the Appellate Body subsequently decides to open access even without such agreements.

VI. THE SCOPE AND LIMITS OF PUBLIC ACCESS TO APPELLATE BODY HEARINGS: A PROPOSAL

The Appellate Body could declare that appeal hearings are public, save when there is sensitive business information that needs to be protected or when parties prove that there is an interest that could be affected if public access to certain information is granted during the hearing. Thus, public hearings do not mean that the protection of confidential information and appellants' or appellees' justified special interests have no place in appeal proceedings. The Appellate Body can and must grant this protection under such circumstances and to the extent required.

In effect, there are covered agreements that specifically provide for the protection of confidential business information, such as article 6.5 of the Anti-Dumping Agreement and article 12.4 of the Agreement on Subsidies and Countervailing Measures, which define information of this character as that whose disclosure ‘would be of significant advantage to a competitor or because its disclosure would have a significant adverse effect upon a person supplying the information or upon a person from whom the supplier acquired the information …, or which is provided on a confidential basis by parties ….’Footnote ⁴¹

Although these provisions allude to sensitive business information in anti-dumping and countervailing duty investigations, the risk of the information's disclosure also exists during WTO panel and appeal proceedings, which makes it necessary to extend the protections to also cover such proceedings. This protection is contemplated, in general, in article 13.1 of the DSU.Footnote ⁴² Consequently, the Appellate Body should ensure that such information remains confidential during the appeal hearing.Footnote ⁴³ The WTO members have this confidentiality as a matter of right rooted in particular provisions of the WTO covered agreements.Footnote ⁴⁴

However, WTO members may also have an interest in preserving the confidentiality of other kinds of information, which they may not want to disclose either to other WTO members not parties or third parties to the dispute in question, or to domestic interests back home. Regarding this information, the Appellate Body should be able to impose a condition for its confidentiality: the party invoking confidentiality must demonstrate the existence of the interest that needs to be protected and the risk of adversely affecting it if the information is made public during the hearing.Footnote ⁴⁵ In sum, the party has to demonstrate to the Appellate Body the prejudice that the invoking party will suffer as a result of public access.Footnote ⁴⁶ If it does, the party's statements about this information may be confidential.Footnote ⁴⁷

There are two issues related to this topic of the condition for the granting of confidentiality: the standard of assessment of the Appellate Body and the parties that can claim the existence of the interest and of the risk of disclosure. As to the first, the Appellate Body should adopt neither a completely deferential nor a strict standard in this regard. The former may limit openness by allowing parties easily to prevent public access to important portions of the Appellate Body's hearings, and the latter may adversely affect parties by denying them the benefit of confidentiality when there are justified grounds to grant it for certain information. A standard of reasonableness—a middle ground between the two poles—seems to be the proper one.Footnote ⁴⁸

The second issue is that, in addition to main parties, third parties should also be able to request confidentiality for their statements on the basis of the above-mentioned grounds. If there is an interest that needs to be protected or a prejudice that needs to be avoided, the Appellate Body should grant the confidentiality of the relevant third parties' statements.

The hearing should, then, be public regarding the rest of the information and statements presented by parties of all kinds to the Appellate Body. In effect, the Appellate Body should not allow members to obtain the benefit of confidentiality when the information to be protected does not have such nature or when there is no prejudice if certain information is disclosed. In terms of a cost/benefit approach, allowing publicity has an important benefit for the transparency of the appeal process and does not impose costs on members: the information that is discussed in the hearing either is already in the public domain or will likely be disclosed later in the Appellate Body report if it is pertinent for the solution of the dispute. Under these circumstances, there is no valid reason to prevent the Appellate Body from granting public access to the discussion between the parties about information of this character and from enhancing the transparency of the WTO appeal proceedings, since confidentiality is not an end in itself. It exists to offer protection for certain information when the possessor might be affected by its disclosure.Footnote ⁴⁹

Having set the basic elements of openness in Appellate Body hearings, this article proceeds with a set of additional features of the proposal which merit attention. First, establishing openness as the rule and confidentiality as the exception in Appellate Body hearings does not ignore the fact that the level of openness may well vary and has to be set on a case-by-case basis. For instance, Appellate Body hearings in anti-dumping cases may require a higher level of confidentiality than, say, those in which the core of the dispute is the general consistency of domestic legislation as such with the WTO covered agreements, where no sensitive business information is involved and hence the justification for confidentiality may not be easy to find. Thus, a general level of openness in the Appellate Body hearings applicable to all appeals simply does not exist.

Second, it is important to mention that the potential disclosure of a party's deficient administration of trade regulation in an Appellate Body hearing should not serve as justification for closing the hearing. An analogy with litigation in some domestic legal systems would be relevant here. Poor business management does not qualify as a trade secret in United States law, and hearings there are not closed to allow a company to prevent its former employees from disclosing management of this character.Footnote ⁵⁰ The Appellate Body could well adopt a similar approach to poor administration of domestic regulation when invoked as justification for holding closed hearings.

Third, as a rule the promotion of openness in Appellate Body hearings should not be seen as an attempt to undermine the discretion that the Appellate Body would posses to determine how much openness to grant in each appeal. This is to say that openness as a rule is entirely consistent with the possibility of large portions of an Appellate Body hearing being held in camera due to the particularities of the appeal in question.

VII. LEGAL GROUNDS SUPPORTING THE SUGGESTED APPROACH

The Consultative Body that prepared the Sutherland Report was of the view that the introduction of public access required an amendment of the DSU.Footnote ⁵¹ However, the Appellate Body decision in US:Continued Suspension shows that amendment is not necessary. Moreover, this case-law contains elements that can be used to deepen openness. Indeed, there is an interpretation of the DSU supporting the establishment of openness in the Appellate Body's hearings as a rule, while granting confidentiality to protect sensitive business information or parties' potentially adversely affected interests.

To arrive at this conclusion, three elements must be shown: first, that main and third parties do not have a substantive right to confidentiality regarding all their statements in appeal proceedings, which the Appellate Body could not diminish owing to the express mandate of article 19.2 of the DSU.Footnote ⁵² However, proof of the absence of such right cannot immediately lead to the conclusion that openness is the rule in Appellate Body hearings. |As a second step, it is still necessary to provide an interpretation of the DSU that, on the basis of the principles of the Vienna Convention on the Law of Treaties, achieves this result. Finally, it is important to show that openness as a rule in Appellate Body hearings does not affect the Appellate Body's adjudicative function, which is the limit that the Appellate Body has explicitly imposed when granting access to its hearings.

To recall the starting point of the analysis, here are the relevant provisions of the DSU, namely, articles 17.10 and 18.2, which provide, respectively:

Article 17.10

Article 18.2.

Before addressing article 17.10, which refers not to WTO Members but to the Appellate Body, it is possible to say that there is no precept unequivocally establishing parties' procedural right to confidentiality regarding all of their statements during WTO appeal proceedings, even when there is no confidential business information involved or any risk over an identified interest if the given information is made public.

The first sentence of article 18.2 indeed provides for confidentiality but only regarding parties' written submissions. A second provision that can be invoked to support absolute confidentiality as the parties' procedural right is the second sentence of article 18.2 of the DSU. But does this sentence explicitly establish that all statements made by parties during panel or appeal proceedings are confidential? The provision in itself does not unequivocally state so. The fact that this provision allows parties to wave confidentiality regarding their statements does not lead to the inference that all of them are secret, but to the narrower deduction that there are indeed some statements that can have a confidential character.

In sum, there is no express provision in the DSU establishing that Members have a procedural right to confidentiality regarding all their statements during WTO appeal proceedings. Could this right be deduced from a contextual interpretation of the DSU, on the basis of the application of article 31.1 of the Vienna Convention? The answer is no. In effect, it could be argued, relying on a contextual interpretation of the DSU, that article 18.2 does consecrate the confidentiality of all parties' statements within appeal hearings, when interpreted in the light of article 17.10. The argument would be that, given that the latter provision had already provided for confidentiality in appeal proceedings, there was no need in the first sentence of article 18.2 to specify in detail the communications between parties and the Appellate Body that are confidential. Although this argument could have been persuasive in the past, this is no longer the case in consequence of US: Continued Suspension, where the Appellate Body declared that confidentiality is not absolute in appeal proceedings. Consequently, article 17.10 cannot make all of the communications between parties and the Appellate Body confidential; it cannot instill absolute secrecy into article 18.2, since the former does not contemplate it itself.

Given the absence of textual and contextual grounds for the absolute confidentiality of all of the statements made by parties during appeal proceedings, there is no need to assess whether such a level of confidentiality serves any of the objectives of the DSU, since the use of the teleological method of interpretation alone cannot displace conclusions based on the text and context of the provisions being examined.Footnote ⁵⁵ As a partial conclusion, it can be said that there is neither express text in the DSU nor a contextual interpretation of it consecrating, as an unequivocal procedural right of WTO Members, total secrecy for all of the statements made by them during appeal proceedings.

However, a reasoned justification for openness in WTO appeal hearings cannot be simply inferred from the legal absence of absolute confidentiality as the rule in appeal proceedings. As a second step, offering an interpretation of the DSU that demonstrates that establishing public access to Appellate Body hearings has support in the DSU is required. Let us then return to its articles 17.10 and 18.2 to present such interpretation.

To begin with, the first sentence of article 18.2 does explicitly impose confidentiality but only regarding written submissions to panels and the Appellate Body, which leads to the assumption that, had the contracting parties wished to regard all statements made in WTO dispute settlement proceedings as confidential, they would have said so.Footnote ⁵⁶ As the Appellate Body stated in Japan: Taxes on Alcoholic Beverages, the fact that a treaty provision is silent on a particular issue ‘must have some meaning.’Footnote ⁵⁷ But such silence is not in itself dispositive of the issue; such conclusion is confirmed on the basis of an interpretation of the DSU in context and in light of its object and purpose.Footnote ⁵⁸ Although, as was mentioned, the first sentence of article 18.2. establishes the confidentiality of parties' written submissions, this is not to say that, beyond such submissions, all statements are public. The second sentence of article 18.2 explicitly authorizes parties to disclose statements, which, given the meaning of the verb,Footnote ⁵⁹ certainly presupposes, as a matter of law, the existence of confidential statements. Thus, the second sentence of article 18.2, interpreted in context with the first sentence, can be understood to provide that parties remain free to disclose statements whenever they are confidential. In sum, what article 18.2 provides for the benefit of parties during dispute settlement proceedings is not an absolute right to privacy, but a guarantee of protection of confidential statements that parties may forgo, if they so wish. Confidential statements would be those related to sensitive business information or to information that the Appellate Body has recognized as needing to be kept out of the public domain to protect a party's justified interest.

The conclusion that the Appellate Body can grant public access to its hearings while affording protection for statements related to sensitive business information or other information having a bearing on an interest that needs to be protected against disclosure is further supported by the object and purpose of the DSU. In effect, transparency at the appeal stage strengthens the legitimacy of the Appellate Body and, therefore, of the dispute settlement system. Indeed, open hearings will allow WTO members and stakeholders to see the Appellate Body in action, its extensive questioning of all parties regarding all issues raised in appeals showing its permanent full knowledge of the record and of all of the topics that need clarification for the proper adjudication of the dispute, thereby diluting any potential criticism of bias against certain members or parties.Footnote ⁶⁰ Such increase in legitimacy enhances the dispute system's role as ‘a central element in providing security and predictability to the multilateral trading system,’ an objective contemplated by article 3.2 of the DSU.Footnote ⁶¹ Such enhancement would also take place from a different angle: increasing use of the dispute settlement system by WTO members, since openness at the appeal stage would allow them—and not only those that are usually parties to appeal proceedings—to observe that the force of legal arguments, not the power of the party arguing them, determines the result of disputes, thereby creating incentives for members to resort more often to the dispute settlement system to resolve their trade controversies. Resolution of disputes through adjudication, not power, makes the world trading system more secure and predictable.

Consequently, consecrating public appeal hearings while protecting confidential information and other information that cannot be disclosed to prevent a proved potential prejudice to a WTO member's interest has grounds in a textual and contextual interpretation of the DSU and favours its object and purpose.

Finally, it is important to state that this level of openness does not go beyond the limit that the Appellate Body has recognized as existing in its ability to grant public access within WTO appeal proceedings. Indeed, openness in the foregoing terms does not undermine the exercise and integrity of the Appellate Body's adjudicative function.Footnote ⁶² Quite the opposite—it enhances such integrity by making public the rigor of the Appellate Body when carrying out its function and the strict impartiality with which it resolves disputes. In addition, while absolute openness could have an adverse impact on the adjudicative function of the Appellate Body by, for instance, constraining the parties from making certain public statements for the fear of affecting an important interest or of disclosing sensitive business information, which would affect the quality of parties' legal argumentation before the Appellate Body, this is not the effect produced by openness as a rule with confidentiality as the exception in appeal hearings. Indeed, since statements related to interests or business information that need to be protected may well be covered by confidentiality during the hearing, in principle parties will not feel constrained in their ability to raise any argument they consider relevant to advance their case and the Appellate Body may therefore rely on the parties to fully make their case. Open access as a rule with confidentiality where necessary in appeal hearings does not then put at risk the Appellate Body's adjudicative function.

Two closing comments are in order. First, it is worth making clear that those excluded from Appellate Body hearings, and members of the public particularly, would not have the right to challenge the Appellate Body's determination, as would normally be the case with similar decisions of domestic courts. Such litigation is usually based on constitutional rights granted to citizens to have access to municipal judicial civil or criminal proceedings. However, there is no such a right under WTO law, which is an inter-state organization in which private parties lack formal standing before the WTO dispute settlement system, which means that legal challenges of the above-mentioned nature would not take place.

The second comment is that, while the Appellate Body can find support in the text, context and object and purpose of the DSU to grant public access to its hearings as a rule, this is not the same as saying that the Appellate Body is under the duty to do so. There is certainly no provision in the DSU imposing such an obligation, with the consequence, as mentioned above, that the Appellate Body always possesses the discretion to determine the level of public access that it wishes to grant in each appeal.

VIII. HOW TO PROTECT STATES' INTERESTS IN APPELLATE BODY HEARINGS: A REVIEW OF THE PRACTICE OF OTHER INTERNATIONAL COURTS AND TRIBUNALS

The law and practice of international criminal courts, which provide for procedures to handle states' information related to their national security, may provide some guidance on the ways in which the Appellate Body can deal with parties' requests during appeal proceedings for protection of sensitive business information or recognized interests, even if national security interests may not always be at issue in WTO appeal litigation.

This is particularly true regarding the approach that the Statute of the International Criminal Court establishes for States' invocation of their need to protect a security interest regarding evidence that the Court has requested. Given the particularities of the Court, the Statute consecrates in articles 72.5 and 93.5, as an initial step, cooperation between the State, the Court and the Prosecutor to address the issue. In the context of the Appellate Body's hearing, the issue of request of evidence is not relevant, since the Appellate Body deals exclusively with legal topics, but cooperation as a criterion can indeed be relevant. Moreover, the practice of the International Criminal Tribunal for the Former Yugoslavia (ICTY) may illustrate how to put such cooperation in practice. For instance, it may happen during a future open Appellate Body hearing that an Appellate Body member asks a question whose answer a party may consider to affect an important interest if disclosed to the public, which may prompt the party to request the Appellate Body to close the hearing to deal with this and other related questions. The Appellate Body could do what Trial Chambers of the ICTY do when a State alleges that it cannot provide the requested information for national security reasons: seek to adjust the request to avoid the disclosing of sensitive information, if possible.Footnote ⁶³ Consequently, the Appellate Body could attempt to reformulate the question(s) in a way that does not affect the interest, thereby preserving the openness of the appeal hearing.

Another protective measure that the Appellate Body could design on the basis of the rules and practice of the ICTY is to establish only partially closed hearings. It may be the case that the need to protect a particular party's interest arises only with regard to certain segments of the public at large and not with all of them. As was mentioned, Rule 79 of the ICTY Rules of Procedure and Evidence provides the possibility for Trial Chambers of excluding certain individuals only, which is certainly better than closing hearings in their entirety.Footnote ⁶⁴ So, for instance, a partially closed hearing would allow only WTO Members to attend it or would grant broad access save for certain indentified individualsFootnote ⁶⁵ or segments of the public.Footnote ⁶⁶ The possibilities for partially closed hearings are indeed wide and the above-mentioned examples do not pretend to cover all of them.

In addition, the practice of the ICTY also illustrates that protective measures regarding confidentiality could well go beyond closing hearings to include, for instance, the order not to make transcripts of the hearing, to seal them,Footnote ⁶⁷ or to allow the party invoking the protection of its interest to provide its own translators,Footnote ⁶⁸ which would mean that any statement made by the party would be known only to the other party and the Appellate Body.Footnote ⁶⁹

The last protective measure could be useful hypothetically in the context of Appellate Body hearings for two reasons: first, a recent ICTY ruling holding in contempt a former spokesperson of the Office of the ICTY Prosecutor for disclosing information that was delivered to the Tribunal on condition of confidentiality shows that the risk of disclosure exists regarding former employees of international institutions.Footnote ⁷⁰ Second, the risk could be considered to be even higher, in abstract terms, regarding former WTO administrative staff—not WTO lawyers or those of the Appellate Body Secretariat—since the Appellate Body lacks the power to impose sanctions on past employees of the Organization for disclosing confidential information once they leave the WTO. If this is so, it may be wise for parties exceptionally to request authorization to provide their own translators in order to avoid this specific risk.

Finally, it should be observed that a protective measure provided for the benefit of international criminal tribunals when handling confidential information, ex parte communications,Footnote ⁷¹ has no place in appeal proceedings, because the tool is explicitly forbidden in the first sentence of article 18.1 of the DSU.

IX. OPTIONS TO INTRODUCE THE APPELLATE BODY'S PUBLIC HEARINGS AS A RULE

There are two options by which the Appellate Body can introduce public hearings as the rule within WTO appeal proceedings at any time in the medium or long term. The first one is through the use of its power to set the Working Procedures, pursuant to Article 17.9 of the DSU.

As the Appellate Body recalled in US: Continued Suspension, appeal hearings are not provided for in the DSU. They are a creation of the Appellate Body in its Working Procedures.Footnote ⁷²

The Appellate Body has, as the US Supreme Court pointed out more than a century ago, ‘the inherent power of a court of law to control its process.’Footnote ⁷⁴ Consequently, it possesses the authority, expressly provided for by the DSU, to regulate its hearings, obviously with due respect for the parties' rights and obligations contemplated by the DSU.

The WTO dispute settlement system offers disputants ample opportunities to settle their disputes under their own terms and with full control of the solutions, the consultations phase being the most obvious stage of this character.Footnote ⁷⁵ But when parties cannot arrive at a settlement through the means they fully control and have to resort to third party adjudication and to the Appellate Body, the standing court of the WTO, they may expect that the Appellate Body will exert more control over the appeal process. Consequently, the Appellate Body can establish the openness of its hearings in its Working Procedures, while ensuring the protection of confidential business information or imposing conditions for the confidentiality of other information or statements when it is necessary to protect an identified party's interest.

However, the other possible way to introduce public appeal hearings is through future litigation in disputes in which a party supporting openness is against another opposing it. Support for openness by some WTO members, particularly those that are frequent users of the WTO dispute settlement system, may well be the result of domestic pressure for more transparency within the system, and these domestic constituencies may not find palatable a system in which Appellate Body hearings are open in some disputes and closed in others. To respond to this pressure, members in favour of public hearings may raise openness as a contentious issue before the Appellate Body, giving it the opportunity to declare, on the basis of any of the above-mentioned reasoning or of a surely more refined interpretation, that the Appellate Body's hearings can be open to the public, without the need for the main parties' prior agreement, while preserving the confidentiality of some information to the extent necessary.