RESTRICTED  
  
WT/DSB/M/439  
 
26 February 2020  
(20-1462) Page: 1/3 
Dispute Settlement Body  
8 January 2020    
 
 
MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 8 JANUARY 2020  
Acting Chairperson : H.E. Ms. Sunanta KANGVALKULKIJ (Thailand)  
Prior to the adoption of the Agenda , the Chair person  of the General Council, Ambassador Sunanta 
Kangvaljulkij  (Thailand) , welcomed delegations and said that she h ad the pleasure of chairing  the 
present meeting  in the absence of  Ambassador David Walker  (New Zealand) , the Chairman of the 
Dispute Settlement Bo dy (DSB) . She said that t his was in accordance with the Rules of Procedure 
for meetings of the DSB.  
1  MOROCCO – ANTI -DUMPI NG MEASURES ON CERTA IN HOT -ROLLED STEEL FROM 
TURKEY  
A. Report of the Appellate Body (WT/DS513/AB/R and WT/DS513/AB/R/ADD.1) and 
Report of the Panel  (WT/DS513/R and WT/DS513/R/ADD.1)  
1.1.  The Chairperson  recalled that , at its meeting on 20 February 2017, the DSB had established a 
panel to examine the complaint by Turkey pertaining to this matter. The Report of t he Panel 
contained in document WT/DS513/R and Add.1 had been  circulated on 31 October 2018.  On 
20 November 2018, Morocco had notified the DSB of its decision to appeal certain issues of law 
covered in the Panel Report and certain legal interpretations deve loped by the Panel. Subsequently, 
on 4 December 2019, Morocco had notified the Appellate Body of its decision to withdraw its appeal 
in this dispute. As a result of Morocco's withdrawal of the appeal, on 10 December 2019, the 
Appellate Body  had issued a sh ort Report circulated in document WT/DS513/AB/R and 
WT/DS513/AB/R /Add.1 outlining the procedural history of the case. In accordance with Article 17.14 
of the DSU, an Appellate Body Report had to be adopted by the DSB within 30 days following its 
circulatio n to Members. The Appellate Body Report and the Panel Report were now before the DSB 
for adoption at the request of Turkey. She said that t his adoption procedure was without prejudice 
to the right of Members to express their views on the Reports . 
1.2.  The repre sentative of  Turkey  said that t he Panel Report in this dispute had been circulated on 
31 October 2018. Morocco had initially appealed the Panel Report but on 4 December 2019, Morocco 
had notified the Appellate Body of the withdrawal of its appeal, pursuant to Rule 30(1) of the Working 
Procedures for Appellate Review. Consequently, on 10 December 2019, the Appellate Body Report , 
which had  set out Morocco 's request, had been  circulated to Me mbers. Therefore , in accordance with 
Article 17.14 of the DSU, his country  request ed that the DSB adopt  the Panel Report and Appellate 
Body Report in this dispute.  Turkey wished to thank the Panel and the Appellate Body for their 
service. Turkey also wishe d to thank Morocc o for its cooperation throughout this dispute. In its 
Report, which had been  circulated to Members on 31 October 2018, the Panel had found that 
numerous aspects of Morocco 's anti -dumping investigation on certain hot -rolled steel products f rom 
Turkey had been  inconsistent with multiple provisions of the Anti -Dumping Agreement, including 
Articles 3.1, 3.4, 5.10, 6.8 and 6.9. Turkey consider ed that the Panel's findings correctly reflect ed 
both the record of Morocco's investigation and the obli gations contained in the provisions of the Anti -
Dumping Agreement invoked by Turkey. The measures at issue in this dispute had expired on 
26 September 2019. Unfortunately, however, on the following  day, Moroccan authorities had 
imposed a preliminary safeguard duty of 25% on imports of a number of steel products that had WT/DSB/M/43 9 
 
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previously been subject to the WTO -inconsistent anti -dumping duty. Turkey regret ted that Morocco 
had chosen such a  course  of action . Turkey would  continue to monitor the effects of th is provisional 
safeguard measure on its exports of hot -rolled steel products to Morocco. In any event, Turkey  
hoped that this matter c ould be resolved amicably through  consultations under Articles 8.1 and 12.3 
of the Agreement on Safeg uards. Turkey also wished to take this opportunity to emphasize its 
support for the WTO dispute settlement system. The existence  of a binding dispute settlement  
system , with the possibility of appellate  review, was a crucial feature of the rules -based mult ilateral 
trading system and was especially important to developing countries like Turkey. His country,  
therefore , hoped that the current situation could be resolved as quickly as possible.  
1.3.  The representative of  Morocco  said that his country  wished to thank the Appellate Body, the 
Panel as well as  the Appellate Body and the WTO Secretariats for their work on this matter.  As 
indicated in the communication circulated by the Appellate Body on 4 December 2019, the relevant 
anti‑dumping measure in this dispu te had expired on 26 September 2019.  With the expiry of th is 
anti‑dumping measure, the Panel's findings ha d become moot. Morocco ha d, therefore , decided to 
withdraw its appeal.  However, Morocco continue d to have major reservations regarding the Panel's 
conclusions. The Moroccan investigating authority had conducted the anti ‑dumping investigation at 
issue with diligence, rigour, fairness and, above all, in full conformity with Morocco's obligations 
under the Anti ‑Dumping Agreement.  The Panel had correctly re jected certain claims made by Turkey . 
First, the Panel had correctly found that some of Turkey's claims fell outside its terms of reference.  
Second, the Panel had correctly rejected Turkey's claim that the Moroccan investigating authority 
had acted inconsi stently with Article 6.9 of the Anti ‑Dumping Agreement by failing to disclose 
essential facts concerning a certain amount of export sales in sufficient time for the two Turkish 
producers  that were under investigation  to defend their interests. As the Panel  had correctly found, 
the producers had actually  been able to defend their interests.  Third, the Panel had correctly rejected 
Turkey's claim that the Moroccan investigating authority  had acted inconsistently with Articles 3.1 
and 3.4 of the Anti ‑Dumping Agreement by supposedly failing to evaluate factors which affect ed 
domestic prices in its injury analysis. As the Panel had explained, Turkey's claim had rested on a 
factually incorrect pr emise.  Unfortunately, other Panel findings and conclusions in this case were 
incorrect. With regard to a large number of these questions, the Panel had clearly overstepped its 
limited terms of reference.  With regard to the use of available facts under Arti cle 6.8 of the 
Anti‑Dumping Agreement, Morocco consider ed that the Panel  had erred in finding that the Moroccan 
investigating authority had not made an affirmative determination that the producers had failed to 
report their export sales. The Panel had reached this incorrect finding even though it had not been 
disputed by the parties that the Moroccan investigating authority had, in fact, made such an 
affirmative determination. The Panel had aggravated its error by applying an incorrect legal criterion 
under  Article 6.8 which requir ed an investigating authority to "engage meaningfully" before being 
authorized to apply available facts. This requirement was not included in Article 6.8 of the 
Anti‑Dumping Agreement.  The Panel's findings regarding establishment o f the industry also suffer ed 
from serious flaws. The Panel had agreed with Morocco that Turkey's claim under footnote 9  to 
Article 3  of the Anti ‑Dumping Agreement , a provision that refer red to establishment, was outside its 
terms of reference. The Panel  had also rejected Turkey's argument that the Moroccan investigating 
authority had been  required to make a finding with regard to establishment. However, the Panel had 
incorrectly found that the Moroccan investigating authority had acted inconsistently with A rticle 3.1 
of the Anti ‑Dumping Agreement in its analysis of establishment. In other words, the Panel had 
criticized Morocco for  the way in which it had carried out  an evaluation that was not clearly  required 
by the Anti ‑Dumping Agreement.  Finally,  the representative of Morocco wished to emphasize that 
Morocco recognize d that investigating authorities had to comply with the requirements of the 
Anti‑Dumping Agreement. However, the Anti ‑Dumping Agreement had to be interpreted and applied 
with a certain  degree of pragmatism, in view of the practical realities with which investigating 
authorities were faced, in particular those of developing countries such as Morocco, which  were not 
frequent users of the Anti ‑Dumping Agreement.  Indeed, it was too easy for  panelists who examin ed 
the case  and who possessed  a broader view of the situation that was unhindered by  the constraints 
faced by a small investigating authority to propose additional analyses that an investigating authority 
could have undertaken or addit ional explanations that an investigating authority could have provided 
in its determination. However, this was not the intention expressed in the wording of the 
Anti‑Dumping Agreement, as made clear by Article 17.6(i) of the Agreement.  
1.4.  The representative o f the United States  said that t he United States wishe d to raise an important 
systemic concern: that is, the failure of the Appellate Body to follow the mandatory 90 -day deadline 
in Article 17.5 of the DSU. Morocco had formally notified the DSB of its inten tion to appeal on 
20 November 2018, pursuant to Article 16.4  of the DSU. Over one year later, on 4 December 2019, 
Morocco  had informed the Appellate Body of its decision to withdraw its appeal. The Appellate Body  WT/DSB/M/43 9 
 
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had circulated a report on 10 December 2019, noting Morocco 's withdrawal of its appeal. As this 
document had not been issued consistent with the requirements of Article  17 of the DSU, that is, 
within 90 days of Morocco 's notification to the DSB of its intention to appeal, it was not an "Appellate 
Body report " under Article 17 , and therefore it was not subject to the adoption procedures reflected 
in Article 17.14. The Uni ted States  noted that the document set out, at paragraphs 1.18 -1.19, certain 
comments relating to the procedures for adoption of panel and Appellate Body reports. Those 
comments were erroneous as they d id not address whether the document had been  issued co nsistent 
with Article 17  of the DSU. In addition, the procedures for adoption of any report were not part of 
the appeal that Morocco had filed. Therefore, those comments were simply an advisory opinion 
issued by the Division.  As the United States ha d been repeatedly explaining, and as many WTO 
Members increasingly recognize d, the DSU d id not assign the mandate or authority to WTO 
adjudicators to render advisory opinions.  For this item, the United States  did not understand either 
party to oppose adoption of the reports, nor ha d any other WTO Member raised an objection. As set 
out explicitly in Article 3.7  of the DSU, the "aim of the dispute settlement mechanism is to secure a 
positive solution to a dispute ". As Morocco ha d withdrawn its appeal and Turkey ha d requested 
adoption of the panel and appellate reports, the United States  underst ood that the parties consider ed 
that adoption of these reports would assist them in finding a positive solution to their dispute. The 
Unite d States would seek to support the parties ' interests in finding a solution. Therefore, the United 
States would expect there to be a consensus to adopt the reports before the DSB at the present 
meeting . 
1.5.  The representative of China  said that his country  took note of Morocco's decision to withdraw 
its appeal in th is dispute , taking  into account the heavy workload of the Appellate Body. China agree d 
that the appellant was entitled to withdraw its appeal according to Rule 30(1) of the Working 
Procedures for App ellate Review. More importantly, the withdrawal of the appeal in this dispute 
remind ed Members , once again , of the importance of immediate ly launch ing the AB selection 
process es and restoring its functioning. There would  be 10 out of the 14 existing appeal s which  could 
not be completed, while Members continued to bring  more disputes to the WTO dispute settlement 
system. While the dispute settlement system was still operating at such a high level, the loss of a 
functioning Appellate Body would inevitably undermine the stability and predictability of the current 
system which should be of grave concern to the entire  Membership. The Appellate Body was an 
indispensa ble component of the single undertaking agreed by all Members that arose out of the 
Uruguay Round. No Member ha d the right to unilaterally change that undertaking by stop ping the 
Appellate Body from functioning. Article 17.2 of the DSU was crystal clear : "[v]acancies shall be 
filled as they arise ". China, therefore , urged the United States  to work with other Members 
constructively by expeditiously reaching a concrete solution to the current deadlock.  
1.6.  The DSB took note of the statements and adopt ed the Appel late Body Report contained in 
WT/DS513/AB/R and WT/DS513/AB/R /Add.1, and the Panel Report contained in WT/DS513/R and 
WT/DS513/R /Add.1.  
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