RESTRICTED  
  
WT/DSB/M/4 75 
13 March 2023 
(23-1460) Page: 1/43 
Dispute Settlement Body  
27 January 2023  
 
  
  MINUTES OF MEETING  
HELD IN THE CENTRE WILLIAM RAPPARD  
ON 27 JANUARY 20231 
 Chairperson : H.E.  Dr Athaliah Lesiba MOLOKOMME (Botswana ) 
Prior to the adoption of the Agenda : (i) the Chairperson  welcomed all delegations participating 
in the present meeting of the DSB both in -person and remotely. She recalled a few technical 
instructions regarding the virtual participation of delegates. If a Member was unable to take the floor 
during the meeting b ecause of a technical issue, the delegation could inform the Secretariat and 
that Agenda item would remain open until the delegation could take the floor. In the alternative, the 
item would remain open temporarily, the meeting would proceed to the next Age nda item, and the 
DSB would revert to the open item after the technical issue had been resolved. If a technical issue 
remained unresolved, the delegation had the option to send the statement to the Secretariat with 
the request that it be read out by the Se cretariat on behalf of that delegation during the meeting so 
that the statement could be reflected in the minutes of the meeting; (ii) the Chairperson  made a 
short statement regarding item 4 of the proposed Agenda of the 28  April 2021 DSB meeting 
pertainin g to the DS574 dispute. She said that, as Members recalled, that matter had been removed 
from the proposed Agenda to allow time for the Chair's consultations with each interested party 
regarding that Agenda item. At the present meeting, she wished to infor m delegations that, like the 
previous Chair of the DSB, she continued to consult with each interested party on this matter and 
that those consultations were ongoing ; (iii) the Chairperson  inform ed delegations that the United 
States ha d notified the DSB of its decisions to appeal the panel reports in the disputes on "United 
States – Certain Measures on Steel and Aluminium Products ". Under the circumstances, pursuant to 
Article 16.4 of the DSU, the panel reports could not be considered for adoption by the DSB  until after 
completion of the appeal. Accordingly, she said that items 5, 7, 8 and 9 of the proposed Agenda 
(WT/DSB/W/712)  not be included on the Agenda of the present  meeting ; (iv) the Chairperson  
informed delegations that the United States had notified the DSB of its decision to appeal the panel 
report in the dispute on "United States – Origin Marking Requirement ". Under the circumstances, 
pursuant to Article 16.4 of the DSU, the panel report c ould not be considered for adoption by the 
DSB until after completion of the appeal. Accordingly, she said that item 11 not be included on the 
Agenda of the present  meeting; (v) the representative of Norway  said that , in light of the fact that 
item 7 of the pro posed Agenda , namely, the panel report in DS552 , "United States – Certain 
Measures on Steel and Aluminium Products " had been withdrawn from the Agenda, Norway wished 
to make a statement under "Other Business " regarding this dispute ; and (v i) the representative of 
Switzerland  said that, in light of the fact  that item 8 , namely, the panel report in DS556, "United 
States – Certain Measures on Steel and Aluminium Products " had been withdrawn from the  proposed  
Agenda following the United States' appeal, Switzerland wishe d to make a statement under "Other 
Business " regarding this  dispute .  
 
The DSB took note  of the statements and adopted  the Agend a, as amended . 
 
 
1 The proceedings of this meeting were held in a hybrid format.  WT/DSB/M/47 5 
 
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  Table of Contents  
1 SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY 
THE DSB  ................................ ................................ ................................ ...........................  3 
A. United States – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status report by the United States  ................................ ................................ .............  3 
B. United States – Section 110(5) of the US Copyright Act: Status report by the 
United  States  ................................ ................................ ................................ .....................  4 
C. European Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European Union  ................................ ................................ ...... 4 
D. United States – Anti-dumping and countervailing measures on large residential 
washers from Korea: Status report by the United States  ................................ .........................  5 
E. United States – Certain methodologies and their application to anti -dumping 
proceedings involving China: Status report by the United States  ................................ ..............  5 
F. Indonesia – Importation of horticultural products, animals and animal products: Status 
report by Indonesia  ................................ ................................ ................................ ............  6 
G. United States – Anti-dumping and countervailing duties on ripe olives from Spain: 
Status Report by the United States  ................................ ................................ .......................  7 
H. European Union – Safeguard measures on certain steel products: Status Report by the 
European Union  ................................ ................................ ................................ .................  7 
2 COLOMBIA – ANTI -DUMPING DUTIES ON FROZEN FRIES FROM BELGIUM, 
GERMANY AND THE NETHERLANDS  ................................ ................................ ..................  9 
A. Colombia's intentions regarding the implementat ion of the recommendations and 
rulings of the Arbitrators in the dispute DS591  ................................ ................................ ....... 9 
3 CHINA – MEASURES CONCERNING TRADE IN GOODS AND  SERVICES  .........................  19 
A. Request for the establishment of a panel by the European Union (WT/DS610/8)  ................  19 
4 CHINA – ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS  ................................ .. 20 
A. Request for the establishment of a panel by the European Union (WT/DS611/5)  ................  20 
5 STATEMENT BY CHINA REGARDING THE PANEL REPORT IN THE DISPUTE: 
"UNITED STATES – CERTAIN MEASURES ON STEEL AND ALUMINIUM PRODUCTS " 
(DS544)  ................................ ................................ ................................ .........................  20 
6 STATEMENT BY TÜRKIYE REGARDING THE PANEL REPORT IN THE DISPUTE: 
"UNITED STATES – CERTAIN MEASURES ON STEEL AND ALUMINIUM PRODUCTS " 
(DS564)  ................................ ................................ ................................ .........................  26 
7 STATEMENT BY HONG KONG, CHINA REGARDING THE PANEL REPORT IN THE 
DISPUTE: "UNITED STATES – ORIGIN MARKING REQUIREMENT " (DS597)  ....................  29 
8 APPELLATE BODY APPOINTMENTS: PROPOSAL BY AFGHANISTAN; ANGOLA; 
ANTIGUA AND BARBUDA; ARGENTINA; AUSTRALIA; BANGLADESH; BENIN; 
PLURINATIONAL STATE OF BOLIVIA; BOTSWANA; BRAZIL; BURKINA FASO; 
BURUNDI; CABO VERDE; CAMBODIA; CAMEROON; CANADA; CENTRAL AFRICAN 
REPUBLIC; CHAD; CHILE; CHINA; COLOMBIA; CONGO; COSTA RICA; CÔTE 
D'IVOIRE; CUBA; DEMOCRATIC REPUBLIC OF CONGO; DJIBOUTI; DOMINICA; 
DOMINICAN REPUBLIC; ECUADOR; EGYPT; EL SALVADOR; ESWATINI; THE 
EUROPEAN UNION; GABON; THE GAMBIA; GHANA; GUATEMALA; GUINEA; GUINE A 
BISSAU; HONDURAS; HONG KONG, CHINA; ICELAND; INDIA; INDONESIA; 
ISRAEL; KAZAKHSTAN; KENYA; REPUBLIC OF KOREA; LESOTHO; LIECHTENSTEIN; 
MADAGASCAR; MALAWI; MALAYSIA; MALDIVES; MALI; MAURITANIA; 
MAURITIUS; MEXICO; REPUBLIC OF MOLDOVA; MOROCCO; MOZAMBIQUE; 
NAMIBIA; NEPAL; NEW ZEALAND; NICARAGUA; NIGER; NIGERIA; NORTH 
MACEDONIA; NORWAY; PAKISTAN; PANAMA; PARAGUAY; PERU; THE 
PHILIPPINES; QATAR; RUSSIAN FEDERATION; RWANDA; SAINT KITTS AND 
NEVIS; SAINT LUCIA; SENEGAL; SEYCHELLES; SIERRA LEONE; SINGAPORE; 
SOUTH AFR ICA; SWITZERLAND; THE SEPARATE CUSTOMS TERRITORY OF WT/DSB/M/47 5 
 
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  TAIWAN, PENGHU, KINMEN AND MATSU; TANZANIA; THAILAND; TOGO;  TUNISIA; 
TÜRKIYE; UGANDA; UKRAINE; UNITED KINGDOM; URUGUAY; 
THE BOLIVARIAN  REPUBLIC OF VENEZUELA; VIET NAM; ZAMBIA AND ZIMBABWE 
(WT/DSB/W/609/RE V.23)  ................................ ................................ ............................  36 
9 STATEMENTS BY NORWAY AND SWITZERLAND REGARDING THE PANEL 
REPORTS IN THE DISPUTE: "UNITED STATES – CERTAIN MEASURES ON STEEL 
AND ALUMINIUM PRODUCTS " (DS552  AND DS556)  ................................ .......................  41 
  
1  SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB  
A. United States – Anti-dumping measures on certain hot -rolled steel products from Japan : Status 
report by the United States (WT/DS184/15/Add.2 35) 
 
B. United States – Section 110(5) of the U S Copyright Act : Status report by the United States 
(WT/DS160/24/A dd.210) 
 
C. European Communities – Measures affecting the approval and marketing of biotech products : 
Status report by the European Union (WT/DS291/37/A dd.173) 
 
D. United States – Anti-dumpi ng and countervailing measures on large residential washers from 
Korea : Status report by the United States (WT/DS464/17/A dd.57) 
 
E. United States – Certain methodologies and their application to anti -dumping proceedings involving 
China : Status report by th e United States (WT/DS471/17/A dd.49) 
 
F. Indonesia – Importation of horticultural products, animals and animal products : Status report by 
Indonesia (WT/DS477/21/A dd.44 – WT/DS478/22/A dd.44) 
 
G. United States – Anti-dumping and countervailing duties on ripe  olives from Spain: Status Report 
by the United States (WT/DS577/13)  
 
H. European Union – Safeguard measures on certain steel products: Status Report by the European 
Union (WT/DS595/14)  
 
 
1.1.  The Chairperson  noted that there were eight sub-items under this Agenda item concerning 
status reports submitted by delegations pursuant to Article  21.6 of the DSU . As Members  recall ed, 
Article  21.6 require d that: "Unless the DSB decides otherwise, the issue of implementation of the 
recommendations or rulings shall be p laced on the Agenda of the DSB meeting after six  months 
following the date of establishment of the reasonable period of time and shall remain on the DSB 's 
Agenda until the issue is resolved ." Under this Agenda item, she wished to  invite delegations to 
provide up -to-date information about their compliance efforts . She also wished  to remind delegations 
that, as provided for in Rule  27 of the Rules of Procedure for DSB meetings : "Representatives should 
make every effort to avoid the repetition of a full debate  at each meeting on any issue that has 
already been fully debated in the past and on which there appears to have been no change in 
Members ' positions already on record. " 
A. United States – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status report by the United States (WT/DS184/15/Add.2 35) 
1.2.  The Chairperson  drew attention to document WT/DS184/15/Add.2 35, which contained the 
status report by the United  States on progress in the implementation of the DSB 's recommendations 
in the case concerning US  anti-dumping measures on certain hot -rolled steel products from Japan . 
1.3.  The representative of the United States  said that the United States had provided a status report 
in this dispute on 16 January 2023, in accorda nce with Article 21.6 of the DSU. The United States 
had addressed the DSB's recommendations and rulings with respect to the calculation of anti -
dumping margins in the hot -rolled steel anti -dumping duty investigation at issue. With respect to 
the recommenda tions of the DSB that had yet to be addressed, the US Administration would confer 
with the US Congress with respect to the appropriate statutory measures that would resolve this 
matter.  WT/DSB/M/47 5 
 
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  1.4.  The representative of Japan  said that Japan thank ed the United States for its latest status 
report and statement at the present meeting . Japan once again call ed on the United States to fully 
implement the DSB 's recommendations and rulings so as to resolve this matter.  
1.5.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
B. United States – Section 110(5) of the US Copyright Act : Status report by the 
United  States (WT/DS160/24/Add. 210) 
1.6.  The Chairperson  drew attention to document WT/DS160/24/Add. 210, which contained the 
status report by the United States on progress in the implementation of the DSB 's recommendations 
in the case concerning Section 110(5) of the US Copyright Act . 
1.7.  The representative of the United States  said that the United States had provided a status report 
in this dispute on 16 January 2023, in accordance with Article 21.6 of the DSU. The US Administration 
would continue to confer with the European Union, and with the US Congress, in orde r to reach a 
mutually satisfactory resolution of this matter.  
1.8.  The representative of the European Union  said that the European Union thank ed the United 
States for its status report and its statement at the present meeting . The European Union  referred 
to its previous statements  and wished to resolve this case as soon as possible.  
1.9.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
C. European Communities – Measures affecting the approval and marketing of biotech 
products : Status report by the European Union (WT/DS291/37/Add.1 73) 
1.10.   The Chairperson  drew attention to document WT/DS29 1/37/Add. 173, which contained the 
status report by the European Union on progress in the implementation of the DSB 's 
recommendations in the case concerning measures affecting the approval and marketing of biotech 
products . 
1.11.   The representative of the European Union  said that the European Union recall ed that the EU 
approval system was not covered by the DSB 's recommendations and rulings. The E uropean Union  
continue d to propose for vote authorisations for genetically modified organisms that, in the Europ ean 
Food Safety Authority 's risk assessment, ha d been concluded to be safe. On 24 January 2023, the 
European Commission had presented to the Appeal Committee a draft decision authorising 
genetically modified oilseed rape MON 94100.  The vote  had resulted in  a "no opinion ". It was now 
for the Commission to decide on the adoption of th at implementing decision.  
1.12.   The representative of the United States  thanked the European Union for its status report and 
its statement at the present meeting. The United States con tinued to engage with the European 
Union on these issues, and had provided recommendations on several occasions as to how the 
European Union could address the undue delays in its approval procedures. The United States had 
described these problems in detail  and noted its concerns with the EU's biotech approval procedures 
monthly in the DSB and during the semi -annual US -EU biotech consultations, including through their 
most recent consultations in October. The United States again requested that the European U nion 
move to issue final approvals for all products that had completed science -based risk assessments at 
the European Food Safety Authority, including those products that were with the Standing 
Committee and Appeals Committee. The United States noted the E uropean Union's recent move to 
issue approvals on a rolling basis and welcomed that improvement .  
1.13.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . WT/DSB/M/47 5 
 
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  D. United States – Anti-dumping and countervailing measures on large residential 
washers from Korea : Status report by the United States (WT/DS464/17/Add. 57) 
1.14.   The Chairperson  drew attention to document WT/DS464/17/Add. 57, which contained the 
status report by the United States on progress in th e implementation of the DSB 's recommendations 
in the case concerning anti -dumping and countervailing measures on large residential washers from 
Korea . 
1.15.   The representative of the United States  said that the United States had provided a 
status  report in this dispute on 16 January 2023, in accordance with Article 21.6 of the DSU. On 
6 May 2019, the US Department of Commerce had published a notice in the US Federal Register 
announcing the revocation of the anti -dumping and countervailing duty orders on imports o f large 
residential washers from Korea (84 Fed. Reg. 19,763 (6 May 2019)). With that action, the United 
States had completed implementation of the DSB recommendations concerning those anti -dumping 
and countervailing duty orders. The United States would con sult with interested parties on options 
to address the recommendations of the DSB relating to other measures challenged in this dispute .  
1.16.   The representative of Korea  said that Korea thank ed the United States for its status report 
and its statement at the present meeting . Korea again urge d the United States to take prompt and 
appropriate steps to implement the DSB recommendations for the "as such " measures in this 
dispute.  
1.17.   The representative o f Canada  said that m ore than five years ha d passed since the expiry of 
the reasonable period of time for implementation of the DSB recommendations arising from the 
Appellate Body Report in US - Washing Machines , according to which the "Differential Pricing  
Methodology " (DPM) was inconsistent "as such " with the WTO Agreements. In spite of this, the 
United States continue d to apply the DPM "as such " in investigations concerning foreign companies 
and continue d to collect cash deposits from foreign exporters on  the basis of th at non-compliant 
methodology. Canada was deeply concerned about th at violation  and invite d the United States to 
put an end to it as soon as possible.  
1.18.   The DSB took note  of the statements and agreed  to revert to this matter at its next regula r 
meeting . 
E. United States – Certain methodologies and their application to anti -dumping 
proceedings involving China : Status report by the United States (WT/DS471/17/Add. 49) 
1.19.   The Chairperson  drew attention to document WT/DS471/17/Add. 49, which contained the 
status report by the United States on progress in the implementation of the DSB 's recommendations 
in the case concerning certain methodologies and their application to anti -dumping proceed ings 
involving China . 
1.20.   The representative of the United States  said that the United States had provided a status 
report in this dispute on 16 January 2023, in accordance with Article 21.6 of the DSU. As explained 
in that report, the United States would cons ult with interested parties on options to address the 
recommendations of the DSB .  
1.21.   The representative of China  said that China thank ed the United States for its most recent  
status report and the statement made  at the present meeting . However, it was very disappointing 
that more than four years after the expiry of the reasonable period of time, the United States had 
still fail ed to implement any adopted rulings or recommendations in this dispute. China  therefore 
once again urge d the U nited States to honour  its obligations by bringing its measures into conformity 
without further delay.  
1.22.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . WT/DSB/M/47 5 
 
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  F. Indonesia – Importation of horticultural products , animals and animal products : Status 
report by Indonesia (WT/DS477/21/Add. 44 – WT/DS478/22/Add. 44) 
1.23.   The Chairperson  drew attention to document WT/DS477/21/Add. 44 – WT/DS478/22/Add. 44, 
which contained the status report by Indonesia on progress in the implem entation of the DSB 's 
recommendations in the case concerning importation of horticultural products, animals and animal 
products . 
1.24.   The representative of Indonesia  said that Indonesia submit ted its report pursuant to  
Article  21.6 of the DSU. Indonesia had taken  note of New Zealand's and the United States ' concerns 
in previous DSB sessions and was fully committed to implementing the recommendations and 
decisions of the DSB in these disputes. Indonesia ha d issued Government Regu lation in Lieu of 
Law No. 2/2022 to revoke and replace Law No. 11/2020 , which had entered into force on 
30 December 2022. With th at enforcement, measure 18 concerning self -sufficiency in relevant laws 
that were found to be inconsistent with WTO regulations  remain ed completely abolished. Regarding 
measures 1  to 17, Indonesia ha d also made significant and substantial changes to the relevant 
Minister ial regulations , and removed the disputed provisions related to harvest period restriction, 
import realization r equirements, six -months harvest requirement, reference price, and domestic 
purchase requirement. Indonesia reiterate d that the Commodity Balance was merely a procedural 
framework for transparently delivering comprehensive, detailed, and accurate data to st reamline 
the permit procedure. An integrated national database system w ould support the Commodity 
Balance to provide business certainty without a limiting effect on trade flow. Finally, Indonesia was 
commit ted to working with New Zealand and the United States to address their concerns.  
1.25.   The representative of the United States  said that t he United States continued to have concerns 
with Indonesia's compliance with the DSB's recommendations. With respect to measure s 1-17, the 
United States would still appreciate further clarity on which regulations presently comprised 
Indonesia's import licensing regimes and on any forthcoming regulations that would affect the 
regimes. The United States continued to review Indonesia 's commodity balance mechanism in an 
effort to understand better how the mechanism would simplify and streamline the permit process, 
and provide for greater business certainty. The United States understood that, for the past 
two years, Indonesia had been s ignificantly delayed in issuing import permits for the first half of the 
year, at least in part due to delays in setting the commodity balances for the year. Indeed, Indonesia 
still had not issued any horticultural product import permits for the first half  of 2023 and had issued 
only a handful of beef import permits. The United States requested Indonesia to clarify whether that 
extended delay was due to the commodity balance mechanism. If not, the United States requested 
Indonesia to clarify the cause of th e delay and how it would affect the operation of Indonesia's import 
licensing regimes for horticultural products and animals, and animal products in the first half of 
2023. The United States remained willing to confer and work with Indonesia to fully resol ve this 
dispute .  
1.26.   The representative of New Zealand  said that New Zealand thank ed Indonesia for its status 
report, and acknowledge d Indonesia 's commitment to comply fully with the DSB 's recommendations 
and rulings. Both compliance deadlines ha d long since expired, and New Zealand remain ed 
concerned about a number of measures. New Zealand  thank ed Indonesia for the additional 
information provided, including in relation to the objective of Indonesia 's Commodity Balance 
mechanism as well as developments related to the Constitutional Court 's ruling on the Law on Job 
Creation (No. 11/2020). New Zealand  was assessing th at information and w ould revert with any 
additional questions on th ose and other matters. Like the United States, New Zealand would also 
appreciate understanding better the regulations that presently  underpin ned Indonesia 's import 
licensin g regimes, as well as any regulations that were forthcoming. New Zealand look ed forward to 
further constructive engagement with Indonesia on the outstanding issues.  
1.27.   The DSB took note  of the statements and agreed  to revert to this matter at its next regula r 
meeting . WT/DSB/M/47 5 
 
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  G. United States – Anti-dumping and countervailing duties on ripe olives from Spain: 
Status Report by the United States (WT/DS577/13)  
1.28.   The Chairperson  drew attention to document WT/DS577/13, which contained the status report 
by the United States regarding  the implementation of the DSB's recommendations in the case 
concerning anti -dumping and countervailing duties on ripe olives from Spain . 
1.29.   The representative of the United States  said that the United States had provided a status 
report in this disp ute on 16 January 2023, in accordance with Article 21.6 of the DSU. As explained 
in that report, the United States had completed its implementation of the recommendations of the 
DSB. To summarize, on 6 July 2022, the US Department of Commerce (Commerce) in itiated a 
proceeding under section 129 of the Uruguay Round Agreements Act. After initiating the proceeding, 
Commerce issued questionnaires to the interested parties seeking additional information. Commerce 
then issued a preliminary determination and, afte r providing interested parties the opportunity to 
submit comments on the issues and analysis in that determination, prepared a final determination. 
That final determination, issued on 20 December 2022, revised aspects of Commerce's analysis and 
determinati ons with respect to the calculation of one respondent's subsidy rate, the determination 
of specificity, and the calculation of subsidies for processed agricultural products under section 771B 
of the Tariff Act of 1930. On 12 January 2023, the US Trade Repr esentative directed Commerce to 
implement those determinations. Commerce issued a notice to that effect on 13 January 2023. 
The notice of the completed implementation was published in the US Federal Register on 
19 January  2023, and could be found at 88 Fed . Reg. 3,384 . 
1.30.   The representative of the European Union  said that t he Panel Report adopted by the DSB on 
20 December 2021 had substantially upheld the EU 's claims and largely confirmed that in imposing 
anti-subsidy duties on ripe olives from Spain, the United States had  acted inconsistently with the 
WTO Agreement on Subsidies and Countervailing Measures. The Panel Report found that the U nited 
States did not  comply with its obligation in the determination of de jure  specificity, in the 
determination of pass -through benefit , or in the calculation of the subsidy benefit for one specific 
EU company. The Panel Report also found that Section 771B of the Tariff Act  of 1930, which 
presume d that the entire benefit of a subsidy provided in respect of a raw agricultural product passe d 
through to the downstream processed agricultural product, was "as such " inconsistent with the 
Agreement on Subsidies and Countervailing M easures . The E uropean Union  expected the United 
States to fully implement the recommendations of the DSB. However, in light of the final 
determination adopted by the United States on 20 December 2022, the E uropean Union  disagree d 
with any US suggestion tha t it ha d fully implemented the recommendations and rulings of the DSB 
in this dispute. For example, regarding the pass -through of the benefit, the U nited States  did not 
appear to have implemented the "as such " finding of the Panel. The European Union  was therefore 
presently  considering the next steps to make sure that its rights under the WTO rules were 
respected.  
1.31.   The representative of the United States  said that the United States took note of the European 
Union's statement. If the European Union had any  remaining concerns or questions, the United 
States stood ready to discuss the matter further with the European Union. On the European Union's 
statement concerning the findings on section 771B, the United States noted that in Commerce's 
determination, Comm erce had expanded its findings to include a non -restrictive examination of 
additional factors, addressing concerns in the Panel Report.  The United States was prepared to 
confer further with the European Union on that issue . 
1.32.   The DSB took note  of the stateme nts. 
H. European Union – Safeguard measures on certain steel products: Status Report by the 
European Union (WT/DS595/14)  
1.33.   The Chairperson  drew attention to document WT/DS595/14 , which contained the status report 
by the European Union  regarding  the implement ation of the DSB's recommendations in the case 
concerning safeguard measures on certain steel products . 
1.34.   The representative of the European Union  said that  on, 16 January 2023,  the European Union 
had submitted a status report under Article 21.6 of the DSU in order to report on progress in the 
implementation of the recommendations and rulings in this dispute. On 31 May 2022, the DSB had WT/DSB/M/47 5 
 
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  adopted its recommendations and rulings, by adopting the Panel Report in this dispute. At the DSB 
meeting of 30 June 2022, the European Union had  informed the DSB that it intended to implement 
the recommendations and rulings of the DSB in a manner that respect ed its WTO obligations, but it 
needed a reasonable period of t ime in which to do so. On 5 August 2022, Türkiye and the European 
Union informed the DSB that they had agreed that the reasonable period of time for the European 
Union to comply with the DSB's recommendations and rulings would be 7 months and 16 days and 
would expire on 16 January 2023. On 13 January 2023, with entry into force on 14 January 2023, 
the European Union had adopted the measure necessary to remedy the three violations identified 
by the Panel, before the expiry of the reasonable period of time ag reed with Türkiye. That measure 
was Commission Implementing Regulation (EU) 2023/104, amending the original Commission 
Implementing Regulation (EU) 2019/159 imposing a definitive safeguard measure on imports of 
certain steel products. The adoption and entr y into force of th at new regulation achiev ed the 
European Union 's full implementation of the DSB recommendations and rulings in this dispute. The 
Panel had established three points of inconsistency of the European Union 's safeguard measure on 
steel with th e WTO Agreement : first, the unforeseen developments and how they had resulted in 
increased imports ; second, to the GATT obligation that had resulted in the increase ; and third to the 
explanations and evidence relied upon regarding the existence of a threat  of serious injury. The 
European Union 's implementing regulation provide d the additional explanations and reasoning to 
remedy the deficiencies which the Panel had identified.  The status report filed eleven  days ago 
satisfie d the requirements of Article 21.6 of the DSU. In this case, full implementation ha d been 
achieved before the six months period (referred to in Article 21.6 of the DSU ) had  expired. The 
European Union  had considered it appropriate to report this immediately  to the DSB and thus had 
placed this item on the Agenda of th e present  meeting.  Since implementation of the 
recommendations and rulings in this dispute had now been complete d, no further reporting on 
progress in implementation w ould be needed.   
1.35.   The represe ntative of Türkiye  said that Türkiye thank ed the European Union for its status 
report with respect to the implementation of the Panel Report in this dispute. Türkiye and the 
European Union had  agreed that the reasonable period of time for implementation wo uld expire on 
16 January 2023. By communication of 13 January 2023, the European Union had stated that it had 
adopted the measures necessary to comply with the recommendations and rulings in this dispute 
through the adoption of Implementing Regulation (EU)  No. 2023/104. That Regulation ha d been 
adopted by the E uropean Union  after it had published a Notice on 24 August 2022.  By th at Notice, 
the European Union had  invited interested parties to provide comments on the points with respect 
to which the Panel had  found inconsistencies under the GATT 1994 and the Agreement on 
Safeguards. In its Report, the Panel had correctly found that the E uropean Union  violated its 
obligations under Article XIX:1(a) of the GATT  1994,  since it did not establish a logical connection 
between the unforeseen developments and the increased imports. The reason for th at ruling was  a 
lack of required explanation and evidence in support of its determinations. The Panel had also 
concluded that the European Union had  failed to identify the obligations the effect of which had 
resulted in the increase in imports. Furthermore, the Panel had concluded that the E uropean Union 's 
threat of  serious injury determination was inconsistent with Article 4.1 of the Agreement on 
Safeguards  – in particular , because the European Union lacked a factual basis for its  findings that : 
(i) the domestic industry was in a fragile and vulnerable position ; and (ii) a further increase in import 
volumes in the future would bring about serious injury. Türkiye note d that, in its implementing 
measure, the European Union had  merely provide d some additional information and explanation 
regarding the link between the un foreseen developments and the increased imports and regarding 
certain aspects of the threat of serious injury determination. It fail ed, however, to comprehensively 
re-assess those elements as was required by the findings of the Panel. Türkiye was convinced  that 
if the EU had carried out such re -assessment, it should have led to the conclusion that the safeguard 
measures had to  be withdrawn. Türkiye therefore consider ed that the measure taken by the 
European Union wa s manifestly deficient. Türkiye w ould continue to review the E uropean Union 's 
Implementing Regulation carefully and, if necessary, w ould ensure that its rights under the DSU 
were fully protected.  
1.36.   The representative of the European Union  said that t he European Union consider ed that it ha d 
fully implemented the Panel's ruling. The Panel had established three inconsistencies of the EU 
safeguard measure with the requirements of the WTO Agreement. Th ose inconsistencies were of a 
nature that could be corrected by complementing the original dete rmination through additional 
explanations based on the existing facts. There was no finding of the Panel suggesting that the 
underlying facts did not allow the imposition of a safeguard measure. It was therefore neither 
necessary nor appropriate to rescind  the safeguard. In line with general principles of international WT/DSB/M/47 5 
 
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  law, the WTO Agreement ha d been confirmed multiple times to leave it to Members to choose the 
way in which to achieve compliance if there was more than one option to do so. While the European  
Union underst ood that Türkiye would have preferred a different choice, this was a decision for the 
European Union to make.   
1.37.   The representative of Korea  said that Korea thank ed the European Union for its status report 
and its statement made at the present meeting . Korea consider ed that the EU steel safeguard 
measure should be withdrawn in view of the circumstances currently prevailing in the EU steel 
market . Korea urge d the E uropean Union  to take prompt and appropriate steps to terminate the 
prolonged steel safeguard measure.  
1.38.   The representative of India said that India believe d that the Regulation dated 12 January 2023 
did not address the issues highlighted by the Panel in its Report, and therefore, the continuation of 
the safeguard measure would lead to non -compliance with the Panel Report by the European Union. 
India was concerned  about  the decision by the European Union since it appear ed that the mentioned  
Regulation d id not address the substantive, material and procedural concerns of the interested 
parties. The interested parties were not given an opportunity to comment on the new data used by 
the European Commission during its compliance investigation. As a result , this had compromised 
the rights of the interested parties to defend their interests.  
1.39.   The representative of the European Union  said that t he European Union did not see anywhere 
in the Panel Report a basis to claim  that the only way to achieve implementation was the withdrawal 
of the measure.  
1.40.   The DSB took note  of the statements.  
2  COLOMBIA – ANTI -DUMPING DUTIES ON FROZEN FRIES FROM BELGIUM, GERMANY 
AND THE NETHERLANDS  
A. Colombia's intentions regarding the implementation of the recommendations and 
rulings of the Arbitra tors in the dispute DS591  
2.1.  The Chairperson  said that this item was on the Agenda of the present meeting at the request 
of Colombia. In connection with this Agenda item, she drew attention to document WT/DS591/9 in 
which Colombia expressed its intentions reg arding the implementation of the recommendations and 
rulings of the Arbitrators in the DS591 dispute. She then invited the representative of Colombia to 
speak.  
2.2.  The representative of Colombia  said that, for systemic reasons , at the present meeting, 
Colombia would  make  its statement in English as this was the language of the appeal procedure in 
this case, although it was a difficult decision for Colombia to so.  This was the first DSB meeting since 
the Multi-Party Interim Appeal Arbitration Arrangement ( MPIA) Arbitration Award  had been  issued 
in this dispute, and it was the first MPIA case. Colombia,  therefore , wished to  comment on several 
aspects of this case. A few day s ago, Colombia had informed the DSB  and the WTO Membership  by 
letter that it intend ed to comply fully with the findings of the MPIA Arbitrators as well as with those 
of the Panel. Colombia circulated that letter on 20 January 2023  in order to comply with the 30 -day 
deadline set out in Article 21.3 of the DSU. At the present  meeting, Colombia wishe d to reiterate its 
statement  as set out in that letter and wished to confirm  its intention to comply with the Arbitrators 
and the Panel's findings. As Colombia al so mentioned in its letter, Colombia w ould require a 
reasonable period of time to bring its anti -dumping measure s into compliance. Colombia look ed 
forward to discussing this matter bilaterally with the E uropean Union.  
2.3.  At the present meeting, Colombia also wishe d to share a few observations about  both the 
Arbitration process given that this was the first time that the MPIA mechanism had been  used, and 
the substance of the Arbitration Award . Regarding  the Arbitration process , Colombia was very 
pleased that the MPIA procedure ha d proven to be a viable and well -functioning interim mechanism 
that c ould replace, on a temporary basis, the Appellate Body an d preserve Members' right of appeal. 
Colombia was proud to be among the WTO Members that ha d committed themselves to the MPIA 
and was pleased to have been involved in the first MPIA appeal. The MPIA reflect ed the flexibility, 
cooperation , and dedication of  its participating Members to preserve one of the core functions of th e 
WTO. Based on Colombia's experience as first -time users, Colombia  believe d that the process was WT/DSB/M/47 5 
 
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  serious, transparent, and efficient. This first MPIA appeal ha d been successful when mea sured 
against the core requirements of an arbitr al process: quick procedures, a concise Arbitral Award , 
and definitive findings. Colombia consider ed that the Arbitrators and the WTO Secretariat handled 
the dispute efficiently and effectively, and Colombia express ed its  appreciation for their work on this 
first MPIA appeal.  
2.4.  Colombia also wished to make several  observations on some relevant procedural features  of 
the process . First, in their procedures, the Arbitrators  had imposed a word limit for the parties' 
submissions , which was  within the Arbitrators' authority. Colombia generally support ed the use of 
word or page limits a s a useful method of strea mlining proceedings, to ensure the timely disposal of 
an appeal, as long as it was not so strict as  to limit a Member's right to appeal rather than simply 
streamlining the arguments , which had been  precisely the case in this appeal. Second, in their 
proced ures, the Arbitrators had called for a pre -hearing conference in which the Arbitrators discussed 
with the parties the topics to be addressed at the hearing. Colombia accept ed that, generally 
speaking, a pre -hearing conference of this type c ould be helpful,  although th at would tend to apply 
mostly in large appeals and should not seek to address issues that were best left for the hearing 
itself, such as whether certain issues are "necessary to resolve a dispute " or the distinction between 
issues of law and is sues of fact. Colombia was pleased that the Arbitrators had agreed with th at 
proposition, as acknowledged in paragraphs 1.11 and 1.12 of the Award.  
2.5.  Colombia appreciate d that it was important for MPIA Arbitratio n to be completed within the 
90-day deadline.  The Arbitrators, the parties and the supporting staff had all been keen on keeping 
the deadline, and it had worked. Th at was  proof that the MPIA was an effective tool for solving 
disputes and that it was a contributing piece to the functioning of the WTO dispute settlement  system 
as a whole , and was even showing ways for improvement. Moreover, the process remain ed available 
to all – both the current MPIA participants as well as any Members who wish ed to join it. Having said 
that, the MPIA mechanism was, of course, not intended to, and should not, permanently replace the 
Appellate Body. It had to , therefore, remain an urgent priority for the WTO Membership as a whole 
to restore the Appellate Body to full f unctionality as soon as possible, as required by the DSU, the 
WTO Agreement , and the MC12 Outcome Document, in which Members had all  committed to 
restoring "a fully and well -functioning dispute settlement system accessible to all Members by 2024 ". 
2.6.  With reg ard to the  substance of the issues raised in this case, Colombia agree d with the 
Arbitrators' approach to the interpretation of Article 17.6(ii) of the Anti -Dumping Agreement. 
Specifically, Colombia agree d with the Arbitrators ' finding that the search for "permissible " 
interpretations differ ed from an attempt to find one's own "final" and "correct " interpretation. The 
question was whether someone else's interpretation was "permitted ", "allowable ", "acceptable ", or 
"admissible " as an outcome resulting from a proper application of the interpretative process called 
for under the Vienna Convention . The interpretative process under the Vienna Convention set an 
outer range beyond which meanings c ould not be accepted.2 That finding was important because it 
shone a spotlight on the deference to which WTO Members were entitled when their anti -dumping 
determinations were being reviewed by a WTO panel. Terms like "deference " or "standard of review " 
reflect ed, effectively, the allocation o f powers between Members and the WTO. Th at was of course 
a topic of fundamental importance for the functioning of the WTO , and th at was  why the Arbitrators ' 
ruling was so important. Th at topic was also of fundamental importance for the ongoing WTO reform 
discussions, including the reinvigoration of the Appellate  Body and the dispute settlement system at 
large. The finding was also important for how WTO dispute settlement approach ed Articles 31 and 
32 of the Vienna Convention. As Members  already kn ew, a mere ly textual approach was not sufficient  
– it was always important to conduct the kind of holistic and comprehensive interpretation required 
by Articles 31 and 32. In addition, where relevant, it was important to place the application of 
Articles  31 and 32 in their proper context, such as the qualifying language of Article 17.6 of the 
Anti-Dumping Agreement.  
2.7.  While Colombia agree d with the Arbitrators' overall approach, it disagree d with their finding 
that Colombia's interpretation of Articles 5.2( ii) and 5.3 of the Anti -Dumping Agreement  concerning 
initiation – leaving discretion to the petitioner and the investigating authority about the sources of 
evidence of normal value – was not a permissible one. In Colombia's view, the Panel's and the 
Arbitr ators' finding s regarding  Articles 5.2(ii) and 5.3 le ft it unclear what precisely a complainant 
and an investigating authority had to do or find when initiating an investigation  on the basis of 
information on normal value other than domestic selling prices . In any event, the Arbitrators had 
 
2 Award of the Arbitrators, para. 4.15.  WT/DSB/M/47 5 
 
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  rightly found that the Panel had applied its own interpretation in an excessively strict manner. The 
end result was that the Panel and the Arbitrators had rejected all of the E uropean Union's challenges 
to Colombia's ini tiation decision. In other words, Colombia's decision to initiate the investigation was 
perfectly consistent with its WTO obligations. Colombia also disagree d with the manner in which the 
Arbitrators had applied the legal standard under  Article  17.6(ii) in  finding that "dumped imports " in 
Article 3 of the Anti -Dumping Agreement may not include imports with positive, but de minimis , 
dumping margins. The Arbitrators afforded no deference to Colombia's interpretation of the term 
"dumped imports ". They assessed  Colombia's interpretation of the ordinary meaning, context, and 
negotiating history only after they had laid out their own interpretation. In other words, Colombia's 
interpretation was not assessed on its merits as a permissible interpretation, but only a gainst the 
Arbitrators' own interpretation. In particular, the Arbitrators erroneously reduced the definition of 
"dumping " in Article 2.1 to mere "context ". They stated that "dumping " for the purposes of Article 3 
has a different meaning than in Article 2. 1 "in isolation "3, thereby ignoring that the Article 2.1 
definition applies "[f]or purposes of this Agreement " (i.e. including Article 3 ). This approach 
effectively enabled the Arbitrators to disregard the definition in Article 2.1 and focus on other 
"context " offered by the procedural provisions in Article 5. However, contrary to the Arbitrators' 
view, th ose provisions d id not compel an au thority to exclude, in the course of an investigation, 
imports with positive but de minimis  dumping margins from the injury analysis.  
2.8.  Colombia also disagree d with the Arbitrators' view that information was treated as 
"confidential " under Article 6.5 even if redacted information in one document was disclosed verbatim  
by the authority in the public version of another document on the record. For the Arbitrators, the 
fact that interested parties may not have known that the same information was found in both 
documents means that the authority treated the relevant information as confidential. Th at view 
misinterpret ed the notion of "confidential treatment " in Article 6.5. As the Panel found , as a fact, the 
information at issue was plainly disclosed by the authorit y and, therefore, the issue of confidentiality 
did not arise. The concern identified by the Arbitrators as to whether the information was the same 
in both documents was a due process issue that should have been raised during the investigation , 
for clarific ation. The E uropean Union did not show that such a concern was ever raised during the 
investigation. In any event, th at issue would fall within the scope of Article 6.4, not Article  6.5. In 
sum, Colombia  consider ed this case to be important both in terms o f its procedure (under  the MPIA ), 
which preserved Colombia' s right to appeal, and on its substance, with important developments and 
findings regarding the Anti -Dumping Agreement.  
2.9.  The representative of the European Union  said that t he European Union thank ed the Panelists, 
the MPIA appeal Arbitrators and the Secretariat for their work on this case. The European Union  
acknowledge d the time and effort dedicated to this dispute both at the Panel and appeal stage. The 
European Union  welcome d the results o f the appellate review, which had broadly upheld the Panel 's 
ruling  and confirm ed in substance that the anti -dumping duties imposed by Colombia on frozen fries 
from Belgium, Germany, and the Netherlands,  were incompatible with WTO rules and improperly 
restricted access to the Colombian market. Th is appeal arbitration, which was the first to be dealt 
with pursuant to the MPIA, demonstrate d that despite the current Appellate Body situation there 
was a functional and efficient interim arrangement that – among its participants – safeguard ed the 
possibility of exercising effectively the right to a binding, two -tier, independent and impartial 
adjudication in accordance with WTO rules. In addition, the proceedings ha d confirmed that appeal 
proceedings in the WTO c ould be conducted swiftly and efficiently, while fully preserving the 
procedural rights of the parties. In that regard, the E uropean Union pointed at the provisions of the 
MPIA that were designed to enhance the procedural efficiency of appeal proceedings. The MPIA was 
open to WTO Members to join for as long as the Appellate Body remain ed unable to fully function.  
The European Union encourage d those Member s that ha d not yet done so to jo in the MPIA, which 
had proved its worth in a very visible way in the present dispute. The European Union  commend ed 
the appeal Arbitrators on their work and their findings , and expect ed that Colombia w ould take the 
necessary steps to promptly and fully impl ement the Arbitrators'  findings. The European Union  stood 
ready to discuss and agree on a reasonable period of time for implementation.  
2.10.   The representative of Costa Rica  said that Costa Rica wished to thank Colombia for informing 
the Members about its decis ion to comply with the recommendations and rulings of the arbitrators 
in this dispute. The arbitral Award in this dispute was the first to be issued under  the MPIA, to which 
both Colombia and the European Union were part y. Costa Rica was a founding member of the MPIA 
and was pleased to note that this dispute had been  successfully concluded in accordance with its 
 
3 Award of the Arbitrators, para. 4.86.  WT/DSB/M/47 5 
 
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  procedures. The fact that Colombia ha d informed Members  that it w ould abide by the Award issued 
by the Arbitrators , in accordance with the MPIA procedures , not only demonstrate d its strong 
commitment to honour its obligations as a WTO Member, but also signal led the respect and trust it 
placed in this appeal mechanism  – the MPIA  – which had been  agreed on a provisional and voluntary 
basis, together with 25 other WTO Members , if one considered  the E uropean Union  as a single 
Member  and 52 Members if one considered  each EU member State  as a WTO Member .  
2.11.   Given the present  deadlock with respect to the functioning of the Appel late Body, Costa Rica 
consider ed that the MPIA could be a viable and secure  option for those Members who wish ed to 
settle their disputes with the possibility of a second instance, which was why Costa Rica  had joined 
this mechanism. This case confirm ed that the MPIA  was indeed a viable and secure  alternative.  
Through this provisional solution, MPIA  participants  could maintain  security and predictability with 
respect to any disputes that m ight arise between them.  But uncertainty persist ed in disputes 
between  MPIA participants  and non -participants , and in disputes between non -participants . In those 
cases, as Members  were aware , Members  could invoke the rights conferred upon them under 
Article  16.4 of the DSU and appeal into the void, with the consequenc es being  that a report would  
remai n in legal limbo, which prevent ed the DSB from playing its role in the quasi -automatic adoption 
of the Report and at the compliance stage,  undermining rights which Members had  negotiated in the 
Uruguay Round,  and which represented a huge achievement for developed and developing countries, 
as well as for the LDCs.  Given the importance of the legal certainty that had existed with the 
Appellate Body and which ha d been lost, Costa Rica  believe d that the MPIA ha d become a public 
good of great significance that was within the reach of all those who wish ed to join it. Costa Rica 
was more than ever  convinced of the MPIA because it had worked well in this first dispute between 
MPIA participants . Costa Rica  urged those  Members who ha d not yet joined the arrangement to do 
so in order to  help restore the legal certainty that was so necessary for all as long as the A ppellate 
Body was not functional.  
2.12.   The representative of Guatemala  said that Guatemala congratulate d the disp uting parties and 
commend ed the Panel, the WTO Secretariat and the MPIA Arbitrators for the successful conclusion 
of these proceedings. Guatemala wished  to put on record some comments  about this MPIA appeal 
Arbitration. In Guatemala 's view, the process  had many positives, and the MPIA Arbitrators  had to  
be commended for conducting the proceedings smoothly and efficiently, as well as for drafting a 
concise and well -written Award. Another positive was the fact that the Award was circulated in a 
timely manner.  Furthermore, in the Award there were references  to procedural innovations, like the 
organization of a pre -hearing conference with the parties that seemed intended to narrow down the 
claims and the issues that needed to be explored at the hearin g and, ultimately, decided on appeal.  
That was a procedural innovation that should be replicated by other adjudicators. Additionally, the 
disputing parties also had to be commended for the high level of cooperation that they had displayed, 
which had contri buted to the success of these proceedings. Finally, and most importantly, it ha d 
been demonstrated that there was a viable alternative to appealing into the void. As a matter of 
fact, the MPIA  preserve d the right that parties ha d to an independent review o f the Panel Report, 
while ensuring that disputes were resolved promptly and effectively. Guatemala invite d Members 
that were not yet parties to join the MPIA while the Appellate Body remain ed non-operational.  
2.13.   The representative of Singapore  said that Singapore was heartened by the positive resolution 
of this dispute using the MPIA , which clearly  demonstrated that the MPIA ha d functioned well to 
facilitate prompt and effective resolution of a dispute. It ha d also highlighted the innovative fea tures 
of the MPIA , which could provide ideas on how Members  could improve the dispute settlement 
system. For example, the Arbitrators had proposed appropriate organi zational measures such as 
page and time -limits , and deadlines , in order to ensure that the Award was issued within the 90 -day 
timeline. While the regrettable impasse in the appointment of Appellate Body members persist ed, 
Singapore encourage d Members to join the MPIA as an interim solution that would preser ve their 
right to appeal under the DSU,  until Members  collectively f ound a durable and lasting solution. 
Singapore, together with other MPIA members, st ood ready to engage with any delegation that 
wishe d to learn more about the arrangement and how it work ed.  
2.14.   The representative of Hong Kong, Ch ina said that Hong Kong, China applaud ed the efforts of 
Colombia and the European Union for resolving their trade dispute under the MPIA, which was a 
useful stopgap whil e the Appellate Body remain ed unable to function. The speed and quality of the 
appeal Arbitration Award , issued within the 90 -day limit, clearly demonstrate d the usefulness of the 
MPIA for safeguarding WTO Members ' rights to a binding, independent , and two -tiered adjudication 
in resolv ing trade disputes, amidst the continued absence of a functioning Appellate Body. WT/DSB/M/47 5 
 
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  Participation in the MPIA arrangement was open to all WTO Members whilst the Appellate Body 
remain ed non-operational. As a participant in the MPIA, Hong Kong, China encourage d more WTO 
Members to sign up for the Arrangement. It serve d as a viable alternative for avoiding situations 
where the dispute settlement system could be undermined by "appeals into the void ", and thus 
provide d an important backstop for the rules -based mul tilateral trading system. Having said that, 
Hong Kong, China, consider ed it highly important to accord  the utmost priority to restoring a fully 
functioning, binding , and two -tiered WTO dispute settlement system, so that Members ' rights and 
obligations unde rtaken under  the WTO Agreement s could be effectively enforced. This was of 
paramount importance for maintaining the stability and predictability of the multilateral trading 
system. As always, Hong Kong, China w ould remain actively engaged in any constructi ve discussion s 
that would help resolve the impasse of the Appellate Body and make the dispute settlement system 
fully functional again.  
2.15.   The representative of the Russian Federation  said that t he Russian Federation wishe d to share 
its serious concerns regarding the approach taken by  the Arbitrators in  their interpretation and 
application of the Anti -Dumping Agreement. These issues were of systemic importance for the whole 
Membership. Russia had doubts on the view s the Arbitrators held with resp ect to Article 17.6(ii ) of 
the Anti -Dumping Agreement,  as their approach was neither in accordance with the text of the 
Anti-Dumping Agreement, nor serve d the aim of  security and predictability  of the multilateral trading 
system.  First, in paragraphs 4.11 and 4.12 of the Award , the Arbitrators  stated that they w ould 
deviate from the approach where by the starting point of the interpretative analysis require d an 
interpretation of the relevant provision under treaty interpretation rules.  The Arbitrators said that 
their approach differ ed. Instead , the Arbitrators suggested that deference to the investigating 
authorit y was one of the instruments to be consulted. As a basis  for th at approach , the Arbitrators 
invented the idea that "the Anti -Dumping Agreement was drafted with the understanding that 
investigating authorities employed different methodologies and approaches ", underlining that in 
most cases the "treaty interpretation involve d weighing, balancing, and choice ". Ultimately, in 
paragraph 4.15 the Arbitrators alleged that if a view on a provision of the Anti -Dumping Agreement 
had "the required degree of solidness or analytical support for [it] to be given def erence as 
'permissible' within the bounds of the Vienna Convention method for treaty interpretation ", it could 
be considered a "permissible interpretation ". To create the illusion of persuasiveness for this 
approach, it appear ed that the Arbitrators refrai ned from identifying  Articles  31 and 32 of the VCLT 
as rules of interpretation. Instead, the Arbitrators referred to them as a "method ", "tools", an 
"interpretative process ", and the "bounds of interpretative method ", thus attempting to decrease 
the value of these provisions in the treaty interpretation exercise. In this regard, the Russian 
Federation recalled  that Articles 31 and 32 of the VCLT reflect customary rules of interpretation , to 
which Article 3.2 of the DS U ma de a reference. They were not just method s, tools , or an 
interpretative process. There was no support for use of any "deference to the investigating 
authorities ", "solidness ", or "analytical support ", as a substitution of VCLT rules.  
2.16.   Second, according to the Arbitrators , in paragraph 4.13  of the Award , adjudicators basically 
had to follow the interpretation suggested by the investigating authority if made under certain 
conditions, "even though [they], as de novo  treaty interpreters, might have reached a  different 
conclusion. " The Arbitrators confused the prohibition of the de novo  review of facts before the 
investigating authority with the task of an adjudicator under Article 3.2 of the DSU to clarify the 
existing provisions of the applicable agreement i n accordance with customary rules of interpretation 
of public international law, which Arbitrators must do on their own. There was no room for any 
de novo interpretation concept, neither in Article 17.6(ii) nor anywhere else in the Anti -Dumping 
Agreement.   
2.17.   Third, the Arbitrators had suggested, through  Article 17.6(ii), to interpret any provision of the 
Anti-Dumping Agreement in the following consecutive steps. The initial step comprise d the 
formulation of the "suggested interpretation " to be tested. After the formulation of the "suggested 
interpretation " was completed, adjudicators  had to  test whether th at "suggested interpretation " fits 
into the provision at issue by applying the VCLT rules. Accordingly, in the Arbitrators ' view, the 
object of analysis of t he treaty interpreter was the "suggested interpretation ", and not the applied 
provision itself. In contrast to what the Arbitrators had suggested, the second sentence of 
Article  17.6(ii) itself noted  that it start ed to apply: "[w]hen the panel finds that a  relevant  provision 
of the Agreement admits of more than one permissible interpretation ". In the second sentence , one 
could see that the focus of an interpreter had to  be on the relevant provision as the object of 
interpretation, not the possible permissible interpretations  as such. Also, while concentrating 
exclusively on the second sentence of Article 17.6(ii) of the Anti -Dumping Agreement, the Arbitrators WT/DSB/M/47 5 
 
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  absolutely disregarded the structure of the Art icle itself. It was the first sentence  of that provision  
that require d the application of the customary rules of interpretation. It was only the second 
sentence that addressed the  possibility of several permissible interpretations. This structure of 
Article 17.6(ii) require d the customary rules of interpretation to be applied to the provision before 
the permissible interpretation appeared or  was derived , not vice versa . The objective adjudicator 
interpreting  a provision had to be  objective in all respects.  The Arbitrators'  suggestion to have the 
"permissible interpretation " as the first step of analysis would inevitably incorporate a subjective 
element into the interpretation exercise , which should  not be there . This new look for Article 17.6(ii) 
was dangero us for the whole system.  The Arbitrators ' line of reasoning , if developed , would  lead to 
adding or diminishing  the rights of WTO Members, which was contrary to Article 3.2 of the DSU.  
2.18.   The Russian Federation also wished  to share some concerns about the Arbitrators' 
interpretation of Article 5.2(iii) of the Anti -Dumping Agreement. The Russian Federation understood  
that Article 2 establish ed the standard for dumping determination s, and the requirements of 
Article  5.2 were for the purpose of evaluati ng the initiation of  an investigation. The Russian 
Federation  believe d that it would be too broad to read the wording "where appropriate " in 
Article  5.2(iii) without any recourse to the definition of dumping , and rules for its demonstration , 
specified in the provisions of Article 2.1 and 2.2 of the Anti -Dumping Agreement. The Russian 
Federation found  support for its view in the wording "[f]or the purpose of this Agreement " in the 
first sentence of Article 2.1, which mean t that the  definition of dumping in Article 2 was applicable 
throughout the whole Anti -Dumping Agreement. In th at vein, when the Arbitrators declined to see 
the link between Article 5.2(iii) of the Anti -Dumping Agreement and Article 2, the Arbitrators ignored 
the wo rd "dumping " in the chapeau of Article 5.2.  
2.19.   The representative of China  said that China thanked  Colombia for bringing this important case 
to the DSB meeting, which provided  Members  with an opportunity to have a better understanding 
of the reactions of the disputing parties to this case from both procedural and substantive 
perspectives.  China also appreciated  the opportunity to comment on this case.  As a participating 
member in the MPIA, China support ed and attache d great importance to the proper functioning of 
the MPIA. As Colombia had pointed out, this was the first appeal arbitration between two MPIA 
participants. The Arbitrators  had successfully completed the appellate review within  a tight time 
frame , and Colombia as the responding party ha d conveyed its intention to comply with the Award . 
That demonstrate d that the MPIA c ould function smoothly , with the support of the Arbitrators, the 
Secretariat, the parties , the third parties , and the WTO Membership , while safeguarding Members 
rights. China  invite d more Members who ha d not signed up to join th e initiative. Without commenting 
on the specifics of the Award , China wished  to take th e opportunity to reiterate its call that during 
the paralysis of the Appellate Body, the MPIA or any other arbitration in accordance with Article 25 
of the DSU shall retain the fundamental characteristics of the Appellate Body , such as impartiality 
and independence, and the Arbitrators shall strictly follow their mandate and interpret the rules in 
accorda nce with customary rules of interpretation of public international law , as stipulated in the 
DSU. Like others, China  firmly believe d that it was essential and in the interest s of the entire 
Membership to maintain a two -tier dispute settlement system . China  reiterate d that the most urgent 
task at present was to immediately launch the selection process and fill the vacancies for the 
Appellate Body , as requested by more than two  thirds of the WTO Members hip. That was a treaty 
obligation for all Members , and no  prerequisite should be attached. China would further elaborat e 
under Agenda  item related to the AB joint proposal to be discussed later in the course of the present 
meeting.  
2.20.   The representative of the United States  said that, the United States would first  like to make 
the following comments. The  United States and other Members had jointly issued WT/GC/244, 
"The Joint Statement on Aggression by the Russian Federation against Ukraine with the Support of 
Belarus ", which condemned Russia's actions as a violation of international law, the UN Charter, and 
fundamental principles of international peace and security. The United States reiterated its support 
for Ukraine during this unimaginably difficult time, and paid tribute to the heroism of the Ukrainian 
people, their armed forces and Leaders .  
2.21.   The United States intervened to comment on the Arbitrator’s findings with respect to 
Article  17.6(ii) of the Anti -Dumping Agreement. Article 17.6(ii) was key to the acceptance of the 
other provisions of the Anti -Dump ing Agreement. The existence of such a provision confirmed that 
Members were aware that the text of the Anti -Dumping Agreement could pose particular interpretive 
challenges, at least in part because it was drafted to cover varying and complex anti -dumping 
regimes and long -standing differences concerning methodology. WTO Members agreed, therefore, WT/DSB/M/47 5 
 
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  that it would be a legal error  not to respect a permissible interpretation of the Anti -Dumping 
Agreement. The question under Article 17.6(ii) was whether an invest igating authority's 
interpretation of the Anti -Dumping Agreement was a permissible interpretation. As the United States 
had explained for years, "permissible " meant just that: a meaning that could be  reached under the 
Vienna Convention.4 Article 17.6(ii) itself confirmed that provisions of the Anti -Dumping Agreement 
might "admit[] of more than one permissible interpretation. " Where that was the case, and where 
the investigating authority had relied upon one such interpretation, a Panel ha d to find the measure 
to be in conformity with the Anti -Dumping Agreement. As one Panel Report stated, "[I]n accordance 
with Article 17.6(ii) of the Anti -Dumping Agreement, if an interpretation is 'permissible', then we are 
compelled to accept it. "5 The A rbitrator seriously engaged with the text of Article 17.6(ii). The 
Arbitrator appropriately recognized that the subparagraphs of Article 17.6 had to "be understood in 
a manner granting special deference to investigating authorities under the Anti -Dumping 
Agreement. "6 The Arbitrator undertook its textual analysis in a manner that gave effect to the terms 
of the provision. The analysis addressed directly the nature of treaty interpretation under the Vienna 
Convention. The Arbitrator explained that its "appro ach assumes, as the second sentence does, that 
different treaty interpreters applying the same tools of the Vienna Convention may, in good faith 
and with solid arguments in support, reach different conclusions on the 'correct' interpretation of a 
treaty pr ovision. "7 The Arbitrator went on to note favourably the observation that the Vienna 
Convention rules "are facilitative not disciplinary and do not 'instruct the treaty interpreter to find a 
single meaning of the treaty' as a former Appellate Body member has written. "8 The United States 
agreed with that observation and found the Arbitrator’s analysis of Article  17.6(ii) to be persuasive .  
2.22.   The Arbitrator’s analysis differed from – and implicitly rejected – the past reports of the 
Appellate Body that expres sed disregard for the meaning and importance of Article 17.6(ii). In no 
WTO dispute did the Appellate Body ever find that there was a permissible interpretation of the 
Anti-Dumping Agreement other than the interpretation favoured by the Appellate Body. Ins tead, the 
Appellate Body simply asserted that "the rules and principles of the Vienna Convention cannot 
contemplate interpretations with mutually contradictory results ".9 That assertion was unsupported. 
The ordinary meaning of "permissible " was "allowable " or "permitted " – that is, an interpretation 
that could be  reached under customary rules of interpretation. The United States welcomed the 
Arbitrator’s willingness to adopt an interpretation that was consistent with the text agreed by 
Members, even and especially if the interpretation differed from the Appellate Body's erroneous 
views.10 The United States recalled that some Members appeared to promote "security and 
predictability " as an independent goal for dispute settlement, and from that derived that appellate 
interpretations must simply be followed.  But this A rbitrator had developed an interpretation that was 
more consistent with the text  agreed by Members.  Adherence to the texts as negotiated and agreed 
by Members – rather than consistency for consistency's sake – assisted in providing security and 
predictabil ity to the multilateral trading system - per the precise words of Article 3.2 of the DSU. 
The United States looked forward to engaging further with Members on the important issues raised 
in the Arbitrator’s Award . 
2.23.   The representative of Uruguay  said that th e absence of the Appellate Body was one of the  
systemic problems that was of most concern to Uruguay, since without an effective dispute 
settlement system, one could  not comply with the agreements, and thus f ound oneself  in a 
Hobbesian scenario where stren gth and relative power triumph ed over the law.  The MPIA, to which 
Uruguay was a founding member, and which on this day had  issued its first award, was not a perfect 
solution to the absence of the A ppellate Body but it was a possible (and hope fully provisio nal) 
solution as had been demonstrated at the present  meeting. As other delegations ha d indicated, the 
purpose of the MPIA was not to replace the Appellate Body , but to avoid , to the extent possible , the 
adverse effects of its absence , referring  specifically to appeals into the void.  In this respect, Uruguay  
congratulate d the delegations of Colombia and the E uropean Union  for having used the MPIA, thus 
showing their commitment to the multilateral syst em and international law. At the same time, 
 
4 See e.g., US DSB statement (February 2009) (WT/DSB/M/265) , paras. 77 -79. 
5 Panel Report, Argentina – Poultry , para. 7.45 (stating that under Article 17.6(i), panels "may not 
engage in de novo  review "). 
6 Arbitrators ' Award , para. 4.12.  
7 Arbitrators ' Award , para. 4.13.  
8 Arbitrators ' Award , para. 4.15  and fn 43. 
9 See e.g. , Appellate Body Report, US – Continued Zeroing , para. 273.   
10 Arbitrators ' Award , para. 4.12.  WT/DSB/M/47 5 
 
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  Uruguay  invite d other Members who ha d not yet joined the MPIA  to do so with a view to also 
preserving their right of appeal.  
2.24.   The representative of Norway  said that a s the work of the DSB directly concern ed the 
upholding of the rules -based international order, Norway found  it pertinent  to address the situation 
in Ukraine. Norway continue d to strongly condemn Russia 's egregious military attack on its 
neighbour Ukraine. Russia 's war of aggression against Ukraine cons titute d a gross violation of 
international law, the rules -based system which also underpin ned the WTO  and the work of the DSB. 
Turning to the  issue at hand, Norway welcome d the first Award  issued under the MPIA, as well as 
Colombia 's intention to implement the recommendations and rulings of the  Arbitrators. The MPIA 
ensure d, pursuant to Article 25 of the DSU, that participating Members continue d to benefit from a 
binding dispute settlement system at the WTO, including an independent and impartial a ppeal stage 
while the Appellate Body was non -functional. The Award  in this case was an excellent illustration of 
how the MPIA procedures provide d for effective dispute settlement as well as efficient appellate 
review. Norway  encourage d all Members who ha d not yet done so to join the arrangement.  
2.25.   The representative of Iceland  said that a  fully functional  dispute settlement system was 
directly connected to the upholding of the rules -based international order, which ha d been seriously 
undermined by the unprovo ked attack of the Russian Federation on Ukraine. Russia's  action s violate d 
international law  and the UN Charter , and undermine d the international order and norms that the 
WTO was based on. With regard to  Agenda item 2 , Iceland welcome d the positive news on how well 
the MPIA had worked in resolving quickly and efficiently this dispute. In the absence of a functioning 
Appellate Body , this mechanism c ould ensure Members ' access to a binding, two -tier, and 
independent dispute settlement sys tem. Iceland therefore  encourage d those Members who ha d not 
yet done so to join the MPIA.  
2.26.   The representative of Switzerland  said that Switzerland wished to join other delegations in 
condemning Russia's military aggression against Ukraine in the strongest p ossible terms. Such 
aggression blatantly violate d international law, most notably the prohibition on the use of force and 
the principle of the territorial integrity of States. Switzerland call ed upon Russia to take military 
de-escalation measures, end host ilities, and immediately withdraw its troops from the Ukrainian 
territory. Switzerland call ed on all actors to respect international law, in particular international 
humanitarian law. Regarding the Agenda item at hand , Switzerland, like other Members, welc omed 
this first Award  under the MPIA. Switzerland was pleased that a two -stage dispute settlement 
process was maintained in this case, and wished  to highlight, in particular, the speed at which the 
Arbitration proceedings had been  conducted. The MPIA was a pragmatic and effective way to 
preserve Members' rights until the Appellate Body impasse was resolved. Switzerland  invite d those 
Members not yet participating in the MPIA to consider joining th e arrangement. Switzerland's priority 
remain ed to find a mu ltilateral solution that w ould ensure  that the WTO dispute settlement system 
was fully operational.  
2.27.   The representative of Brazil  said that Brazil thank ed the Panel, the Arbitrators and the 
Secretariat for their work on this dispute, including the Award  that was circulated  in December  2022.  
This was the first arbitration conducted pursuant to the MPIA.  In Brazil's  view, th at result was 
commendable in many respects . The procedures envisaged in the MPIA for the initiation of an appeal  
arbitration and the selec tion of the Arbitrators who would hear this specific case worked smoothly 
from the beginning. The filing of submissions and the preparation and conduct of the hearing , 
including a virtual pre -hearing conference held a few days before the hearing , also took  place 
smoothly, following a working schedule adopted by the Arbitrators after consultation with the parties. 
Third parties , of which Brazil was one , had participated actively in the proceedings, and their views 
were clearly taken into account by the Arbitrators, as was evident in the Award . The Award  was 
circulated before the 90 -day deadline established in the MPIA. The Award  was a concise document, 
but conciseness d id not come at the expense of quality.  Independently of Members ' views on the 
substance of the Award  in respect of the different issues that were under appeal,  this was a 
high-quality document  in which  decisions were well reasoned and clearly explained. Brazil 
commend ed Colombia and the E uropean Union for th at outcome,  which it consider ed to be auspicious 
for the rules -based dispute settlement system , which was  a core pillar of the WTO. Brazil also invite d 
other Members to join the MPIA.  This Arbitration ha d proved that the MPIA was  a solid, reliable 
means for Members t o ensure that their disputes c ould efficiently move forward and be resolved 
while the current  impasse with the selection of Appellate Body members persist ed. WT/DSB/M/47 5 
 
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  2.28.   The representative of Canada  said that  Canada strongly condemn ed the unjustified and 
unprovoked in vasion of Ukraine by President Putin. Putin's plans to "annex " Ukrainian territory were 
devoid of legitimacy and w ould never be recognized. Th ose hostile acts blatantly violate d 
international law and the rules -based international system. Ukraine's sovereignty and territorial 
integrity had to  be respected and the Ukrainian people had to  be free to determine their own future. 
Canada urge d Russia to immediately cease all acts of hostility and provocation against Uk raine and 
withdraw from the country its military and intermediary forces. Regarding the Agenda item in 
question, this was the second appeal  arbitration proceeding to have taken place in accordance with 
the principles set out in Annex 1 of the MPIA, and the  first proceeding of this type to take place 
between two MPIA parties. Once again, it ha d been demonstrated that the appeal  arbitration 
procedure work ed and that it provide d a viable way of settling disputes in a definitive and binding 
manner with access t o appellate review for those WTO Members that want ed it. The concise nature 
of the arbitral Award  had to be noted, as well as the fact that it was issued within the 90 -day period 
given to complete the appeal. The innovative procedural elements provided for  in the appeal  
arbitration agreement ha d contributed to th at outcome. In the absence of a functional Appellate 
Body, the MPIA was the best way to preserve the rights and obligations of participating Members. 
Canada invite d all WTO Members to join the MPIA and was prepared to discuss the arrangement 
with any Member that m ight be interested.  
2.29.   The representative of New Zealand  said that New Zealand join ed other Members in 
condemning, unequivocally, the unprovoked and unjustified attack by Russia on Ukraine. Th ose 
actions were egregious and unlawful – the act of aggression was strictly prohibited under 
international law, as was the targeting of civilians. Russia 's invasion of Ukraine 's sovereign territory 
had implications for global peace, security, and economic stability , and deeply undermin ed the work 
of the DSB  and the multilateral cooperation that underpin ned it. Furthermore, New Zealand  stood 
firmly against any steps by Russia that risk ed a further escala tion in this conflict. In relation to 
Agenda item 2, New Zealand join ed other colleagues in welcoming the successful conclusion of the 
appeal Arbitration in this dispute, utilizing  the MPIA. Like others, New Zealand  acknowledge d the 
streamlined appeal proc eedings and delivery of the Arbitrators ' report within the 90 -days timeframe. 
New Zealand  invite d those Members who ha d not joined the MPIA to consider doing so. The MPIA 
provide d an avenue to safeguard access to an appeal level of review, while Members  worked 
collectively towards reform in order to restore a fully  functioning dispute settlement system.  
2.30.   The representative of Peru said that Peru consider ed it important to highlight the relevance 
of the Arbitration Award since this was the first tangible proo f that the MPIA, to which Peru was  a 
participant , had met its objectives efficiently, preserving two levels of adjudication , through impartial 
appellate review  and the binding nature of the dispute settlement system. Without referring to the 
substan ce of the dispute, Peru consider ed that the procedure ha d been conducted in such a way that 
a concise ruling was able to be reached in a serious, transparent , and efficien t manner , within the 
time-frames established in the rules of procedure, suggesting that the MPIA not only work ed but 
worked well. Peru did, however , wish to point out that, as the name of th e mechanism indicate d, it 
was an interim arrangement to safeguard the right s of the parties to independent review, until such 
time as the Appellate Body resume d its functions, which, as Peru had stated on numerous occasions, 
remained the priority. In this regard, as Members'  discussions continue d and pick ed up pace in ot her 
settings , with a view to having a fully functioning DSB in place no later than 2024 , in accordance 
with the commitment undertaken at MC12,  Peru called on more Members to consider joining th e 
MPIA,  so that more cases were not appealed into a vacuum , such that  the imbalance of rights and 
obligations was not prolonged further and Members  upheld one of the central pillars of WTO. 
2.31.   The representative of Japan  said that Japan wished  to touch upon the situation in Ukraine. 
Japan strongly condemn ed Russia's aggression against Ukraine and its missile attacks against civilian 
infrastructure and cities across Ukraine. Japan was seriously concerned about Russia's nuclear 
threat, which was absolutely unacceptable. Russia  should never use nuclear weapons und er any 
circumstances. Japan strongly urge d Russia once again to stop its aggression and withdraw its forces 
from the territory of Ukraine within its internationally recognized borders immediately. Japan w ould 
also continue to work firmly on the two pillars  of imposing strong sanctions against Russia and 
supporting Ukraine, in cooperation with the international community. Turning to Agenda item 2, 
Japan applau ded the efforts of the parties to the dispute to agree to arbitration under Article 25 of 
the DSU to  obtain a final adjudication and resolve the dispute , notwithstanding  the current  situation 
of the paralysis of the Appellate Body. Japan also welcome d Colombia's intention to implement in 
good faith the Arbitration Award  issued under Article 25 of the DSU.  WT/DSB/M/47 5 
 
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  2.32.   The representative of Australia  said that , before making its statement under Agenda item 2,  
Australia w ished  to note that it continue d to condemn in the strongest terms Russia 's illegal, 
unjustified , and unprovoked inva sion of Ukraine. As Australia had previously stated, Australia  
continue d to raise this issue in this forum because Russia 's actions were a violation of international 
law and the fundamental international norms on which organisations such as the WTO were based. 
Australia  continue d to stand in solidarity with the people of Ukraine and call ed on Russia to withdraw 
its troops. Turning to Agenda item 2, Australia welcome d the prompt conclusion of the first appeal 
arbitration under the MPIA. The timely resolution  of this dispute highlight ed the value of ensuring 
parties c ould exercise their right to binding resolution of disputes in the WTO including, should they 
choose, the right to appellate review. It also demonstrate d that a two -tiered dispute settlement 
system could operate efficiently. Until Members found  a lasting solution to the Appellate Body 
impasse, the MPIA w ould remain an important option within the WTO dispute settlement system. 
Australia,  therefore encourage d other Members to join the MPIA as the bes t way to fully protect and 
enforce rights under the WTO Agreements, while Members  worked to restore a fully functioning 
dispute settlement system.  
2.33.   The representative of Chile said that Chile welcomed the conclusion  of this first case to have  
been submitted to the MPIA, as well as the issuance of its first arbitral Award. Chile was pleased 
that an outcome had been found following an efficient and transparent process. Chile congratulated  
Colombia and the European Union for using this voluntary arbit ration mechanism, as well as all 
actors involved, especially the Arbitrators, who had worked hard and efficiently to advance these 
proceedings. Chile hoped that this first milestone would enable Members  to continue to strengthen 
this interim mechanism, whi ch was open to all WTO Members , and to whom Chile extended an 
invitation to participate while they worked on identifying a collective and lasting solution regarding 
the Appellate  Body.  
2.34.   The representative of the European Union  said that t he European Union j oined other Members 
to reiterate its resolute condemnation of the Russian Federation' s military aggression again st 
Ukraine. Russia's abhorrent conduct grossly violate d international law and undermine d international 
security and stability. The European Unio n fully support ed Ukraine's independence, sovereignty,  and 
territorial integrity within its international ly recognized borders as well as Ukraine's inherent right of 
self-defence against Russia's unprovoked and unjustified military aggression. The European  Union  
called on Russia to withdraw its troops from Ukraine and to end immediately its campaign of 
systematic missile strikes against Ukrainian civilians, civilian targets, energy infrastructure , and 
other utilities , which inflict ed terrible suffering on t he people of Ukraine. War crimes committed 
against Ukrainians and the widespread targeted destruction of civilian infrastructure were gross 
violations of international law. The E uropean Union welcome d and encourage d efforts to ensure full 
accountability fo r war crimes and other serious crimes in connection with Russia's war of aggression 
against Ukraine. The European Union remain ed committed to providing, along with partners, 
financial relief to Ukraine and to supporting Ukraine's resilience and long -term r econstruction. The 
European Union w ould stand firmly by Ukraine and its people for as long as it t ook. 
2.35.   The representative of  the Russian Federation  said that  he had  to address certain political 
declarations made by some WTO Members at the present meeting,  and with respect to them  the 
Russian Federation wished to stress the following. First, Members  should  keep to the Agenda of the 
meeting, circulated on 25 January 20 23 in document with number WT/DSB/W/712 and adopted at 
the present meeting . The political discussions suggested by some WTO Members d id not concern 
any of the issues listed in the Agenda. Second, the DSB had its own tasks and mandate expressed 
in different  provisions of the DSU . None of the political issues raised by some WTO Members was 
within the competence of the DSB. Third, and ultimately, the WTO was not a political organization 
and Members  should  refrain from trying to address issues there that were not in the competence of 
the WTO. Russia consider ed that some of the root causes of the crisis of the multilateral trading 
system that Members were  facing were the blockage of Appellate Body appointments a nd attempts 
to politicize the WTO that Members had  heard at the present meeting . Russia encourage d WTO 
Members to focus on resolving the problems they already ha d and not creat e new ones, unless any 
WTO Member ha d an intention to continue to destroy the multilateral trading system further . WT/DSB/M/47 5 
 
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  2.36.   The representative of Colombia  said that Colombia wished to thank the European Union and 
the delegations that made statements  under this Agenda item. It was gratifying to see tha t the MPIA 
had produced results , which even non -participants to the Arrangement  considered to be positive.  
Colombia,  therefore , reiterate d its call to Members to join the MPIA to settle their appeals cases, 
while they endeavour ed to resolve the Appellate B ody issues by 2024.  
2.37.   The DSB took note  of the statements, and of the information provided by Colombia with 
respect to its intentions regarding the implementation of the recommendations and rulings of the 
Arbitrators in the DS591 dispute.  
3  CHINA – MEASURES CONCERNING TRADE IN GOODS AND SERVICES  
A. Request for the establishment of a panel by the European Union (WT/DS610/8)  
3.1.  The Chairperson  recalled that the DSB had considered this matter at its meeting on 
20 December 2022 and had agreed to revert to it, should a requesting Member wish to do so. Sh e 
then drew attention to the communication from the European Union contained in document 
WT/DS610/8 and invited the representative of the European Union to speak . 
3.2.  The representative of the European Union  said that t he European Union  reiterate d its request 
for establishment of a panel in dispute DS610 with China. It was regrettable that, despite the 
European Union 's efforts to resolve this issue bilaterally, China ha d not removed its discriminatory 
and coercive measures. Since at least December 2021, China ha d applied discriminatory and 
coercive measures against exports from or to Lithuania and against exports of EU products 
containing Lithuanian content. Th ose ha d included rejections of Lithuanian imports by Chinese 
customs authorities, import r estrictions affecting multinational companies that use d inputs from 
Lithuania,  and a cut in Chinese exports to Lithuania. China also suddenly formalised complete import 
bans on alcohol, beef, dairy, logs, and peat shipped from Lithuania as part of the same  group of 
measures, using phytosanitary arguments for doing so. When requested further explanations, China 
had failed to prove that th ose bans were justified. Chinese customs statistics show ed that trade from 
Lithuania to China had dropped by 80% from Janu ary to October 2022 as compared with the previous 
year. China 's measures restricting trade from Lithuania not only impact ed Lithuania but also affect ed 
intra-EU trade and intra -EU supply chains and they impact ed the functioning of the EU internal 
market. T hat was something that went to the heart of the E uropean Union. The consultations that 
had taken place on 14 and 15 March 2022 did not bring about a satisfactory solution. The European 
Union wa s entitled to protect its member States against China's discrim inatory measures, which the 
European Union  consider ed to be in breach of WTO rules. To th at end, the E uropean Union request ed 
the establishment of a panel to examine  the measures.  
3.3.  The representative of China  said that China regret ted that the European Union had  decided to 
proceed with  its panel request in this dispute. China was not in a position to support it at the present 
meeting . China  wished to refer to its statement made  at 20 December 2022  DSB meeting.  China 
attache d great importance to WTO rules and its relevant commitments and conduct ed trade with the 
European Union and other WTO Members in a manner that was transparent and consistent with WTO 
rules. China w ould vigorously defend its legitimate measures during  the panel  proceedings.  
3.4.  The representative of the United States  said that the United States would like to express its 
support for the complaint brought by the European Union. The United States had requested to 
participate in the consultations in this dispute in light of its substantial trade interest, but regretted 
that that request had been denied by China without explanation. The United States was disappointed 
that China had not lifted its restrictions relating to goods and services of Lithuania and the European 
Union. The United States was also concerned at the lack  of transparency on the basis for those 
restrictions. Accordingly, the United States continued to call on China to lift those coercive economic 
measures. The United States intended to participate in this dispute as a third party . 
3.5.  The DSB took note  of the s tatements and agreed  to establish a panel in accordance with the 
provisions of Article  6 of the DSU, with standard terms of reference.  
3.6.  The representatives of Brazil , Canada , Colombia , India, Indonesia , Japan , Korea , New Zealand , 
Norway , the Russian Federat ion, Switzerland , Chinese Taipei , Türkiye , the United Kingdom , the 
United States  and Viet Nam  reserved their third -party rights to participate in the Panel's proceedings.  WT/DSB/M/47 5 
 
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  4  CHINA – ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS  
A. Request for the establishment of a panel by the European Union (WT/DS611/5)  
4.1.  The Chairperson  recalled that the DSB had considered this matter at its meeting on 
20 December 2022 and had agreed to revert to it, should a requesting Member wish to do so. She 
then drew attention to the commu nication from the European Union contained in document 
WT/DS611/5 and invited the representative of the European Union to speak.  
4.2.  The representative of the European Union  said that t he European Union reiterate d its request 
for establishment of a panel in dispute DS611 with China on measures that unduly restrict ed the 
possibility to enforce intellectual property rights. It was regrettable that, despite the European 
Union 's efforts to resolve this issue bilaterall y, China ha d not removed th ose measures. Th ose 
measures were inconsistent with China 's obligations under the TRIPS Agreement. They effectively 
deprive d patent holders of the possibility of exercising and enforcing their patent rights , as required 
by the TRIPS Agreement . The situation was the following: other WTO Members ha d granted patents 
in line with the TRIPS Agreement (for example on 3G, 4G and 5G mobile communication 
technologies ). Chinese courts ha d prohibited the owners of those patents from going to  the courts 
of those WTO Members that granted the patents to enforce their rights in line with the TRIPS 
Agreement. The E uropean Union had raised the issue of China 's measures a number of times 
bilaterally, as well as in the WTO  in the  TRIPS Council and du ring China 's Trade Policy Review , 
unfortunately without solving the problem. The E uropean Union  had requested consultations with 
China on this matter on 18 February 2022. Consultations had taken  place on 6, 7 and 12 April 2022. 
The consultations were useful in clarifying a certain number of points, but failed to resolve the 
problem. The E uropean Union urged China to bring its measures at stake into line with its WTO 
obligations. To th at end, the European Union request ed the establishment of a panel to  examine  the 
measures.  
4.3.  The representative of China  said that China regret ted that the European Union had decided to 
proceed with  its panel request with regard to this dispute. China was not in a posit ion to support it 
at the present meeting . China wished to refer to its statement made at the previous DSB meeting. 
China t ook the view that anti -suit injunction s in the field of standard essential patent s was a novel 
issue that emerge d in recent years in many jurisdictions of WTO Members, including the E uropean 
Union. No unified international rules ha d been established to govern this issue. Bringing  immediately  
the decisions of Chinese courts before the WTO dispute settlement system wou ld not be helpful to 
resolve the dispute in a positive manner. China w ould vigorously defend its legitimate measures in 
the panel  proceedings. Having said that, China remain ed open to further engage with the E uropean 
Union  in good faith with a view to posi tively resolving this dispute.  
4.4.  The representative of Ukraine  said that p ursuant to Article 10.2 of DSU, Ukraine thereby 
notifie d the DSB, and t he European Union and China that, in light of the substantial trade interest 
of Ukraine, it wished  to reserve its  third-party rights in the dispute DS61 1.  
4.5.  The DSB took note  of the statements and agreed  to establish a panel in accordance with the 
provisions of Article  6 of the DSU, with standard terms of reference.  
4.6.  The representatives of Brazil , Canada , Colombia , India, Indonesia , Japan , Korea , Norway , 
the Russian Federation , Singapore , Switzerland , Chinese Taipei , Ukraine , the United Kingdom , 
the United States  and Viet Nam  reserved their third -party rights to participate in the Panel's 
proceedings.  
5  STATEMENT BY CHINA REGARDING THE PANEL REPORT IN THE DISPUTE: "UNITED 
STATES – CERTAIN MEASURES ON STEEL AN D ALUMINIUM PRODUCTS " (DS544)  
5.1.  The Chairperson  said that this item was on the Agenda at the request of China, and she invited 
the representative of China to speak.  
5.2.  The representative of China  said that China express ed its deep appreciation to the panel, the 
Secretariat, the co -complainants , and the third parties, for their tremendous efforts made over the 
past four years to prepare  this panel report . The panel ha d found : first, that the security exception 
under Article XXI(b) was not self -judging; second,  the US Section 232 measures violated two WT/DSB/M/47 5 
 
- 21 - 
 
  cornerstone provisions of the WTO, i.e. , MFN and tariff bindings; and third,  the US measures were 
not taken in a time of emergency in international relations, and hence failed to meet the threshold 
of the security exception. China would have hoped that the U nited States would show due 
self-restraint not to appeal every unfavo urable panel report into the void  – which the U nited States 
had created through the constant blockage of the selection processes of Appellate B ody members . 
However, China's  legitimate expectation ha d, once again , ruthlessly  failed  as the U nited States had 
notified its decision to appeal. This was  the eleven th appeal th at the  United States  had filed since it 
had paralyzed the Appellate Body in December 2019, accounting for 37 % of all appeals since then. 
What was more concerning was the US rejection of the panel reports . In a press release issued on 
9 December 2022, the USTR had declared that it ha d no intention to implement relevant panel 
decisi ons, and threatened fundamental reforms of the dispute settlement mechanism. The U nited 
States had seem ed to indicate that it would refuse to comply with the result of any proceedings in 
which it ha d invoked a security exception. If th at was indeed the US position, it directly contradict ed 
the principle of pacta sunt servanda . The Membership was thus faced with a situation in which one 
Member ha d declared itself to be above the law, which was in sharp contradiction with the principle 
of the rule of law embedded in this rules -based organization as well as the binding, enforceable 
nature of the dispute settlement system. Th is troubling behavio ur of the U nited States  had clearly 
depicted an imag e of the U nited States as a "unilateral bully ", a rule breaker, and a supply chain 
disruptor. China recalled  that t he previous Ambassador of China,  back in 2018 , at the fourteenth  US 
Trade Policy Review , had q uoted the wording of Spider man: "with great pow er comes great 
responsibility ". At the present meeting, China wished to reiterat e its call that the U nited States  
should behave in a manner that  match ed its power with its responsibility.  
5.3.   At the present meeting, China  wished to elaborat e on three points. First, the United States 
was a "unilateral bully ". At this point, China wished to  briefly recall the origin of this dispute. In 
March 2018, the United States had  begun imposing Section 232 duties on steel and aluminium 
products to protect  its domestic industry , in the disguise of national security. To give some concrete 
perspective , as the U nited States  had exempted 70% of its steel imports from the additional duties, 
the actually restricted imports only accounted for 5 % of US steel consu mption, of which defen ce 
use comprised  roughly 0.15 %. In other words,  Section 232 measures were overwhelmingly 
protectionist, as their contribution to national security was negligible at best. From the outset, the 
United States had deployed th ose additional duties as an instrument of economic coercion, using 
them to force other Members to enter into quota arrangements, or make concessions to the U nited 
States in trade negot iations. The measures ha d been widely opposed, disputed  by several WTO 
Members, and found to be WTO-inconsistent by all panels. The findings of the panel in this dispute 
demonstrated , once again , that the security exception was not a "safe harbo ur" for uni lateralism or 
protectionism.  
5.4.  Second, the United States ha d violated the WTO rules. Given the blatant nature of the US 
additional duties, there ha d never been any dispute that th ose measures were inconsistent with the 
United States' most basic MFN and tari ff binding obligations under Articles I and II of the GATT 1994. 
At the same time, it was obvious to China and other co -complainants that th ose measures had the 
objective features of safeguard measures and should be reviewed accordingly. While China  regret ted 
that the panel had incorrectly held that the measures were not safeguard measures because the 
United States had  adopted them under other provisions of its domestic law, China  commend ed the 
panel's overall conclusion that the US measures violated the WTO rules and were not justified under 
the security exception. China welcome d and appreciate d that.  
5.5.  Third, the US position contradict ed the principle of pacta sunt servanda. During the US trade 
policy review conducted a month ago, China had  pointed out that the United States should have 
been a model in leading implementation of WTO dispute settlement rulings. However, after the 
issuance of the panel report in this dispute, the United States had not only publicly announced that 
it had no intent ion to remove the WTO -inconsistent measures, but also continued to block the 
selection process of Appellate Body  members . That was a blatant disregard of international rule of 
law, which directly contradict ed the principle of pacta sunt servanda . In the p revious  four years,  the 
United States had kept claiming to return to multilateralism, but its behavio ur told a different story. 
One m ight have to ask: was the United States still willing to accept WTO dispute settlement decisions 
that were not in its favo ur? Was the United States still willing to assume its responsibilities and 
obligations in the WTO? Was the United States still willing to accept a rules -based multilateral trading 
system? Answers need ed to be found for all th ose questions.  WT/DSB/M/47 5 
 
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  5.6.  The representative of the United States  said that the United States was making this intervention 
with regard to the several Agenda items involving national security. The United States regretted that 
this item had been placed on the Agenda and that China and certain other Members sought to drag 
issues of national security into the WTO. The United States rejected the false portrayal of its actions 
and interests that Members had just heard. The United States continued to be one of the most free, 
transparent, and competitive economies. The United States was the world's largest single -country 
importer, and US tariffs were among the lowest in the world. The United States also con tinued to be 
one of the most transparent Members of the WTO. When the United States took an action, the 
reasons were made clear both to US citizens and to its trading partners at the WTO. Members knew 
where the United States stood - and why. At its recent Trade Policy Review, the United States 
appreciated many Members' recognition of its strong record on transparency and was gratified to 
hear many Members welcome its record of WTO leadership across all pillars of the organization, 
including on WTO reform. U S leadership at the WTO reflected its commitment to the organization. 
The United States had led by maintaining a fundamentally open economy. It had played a key role 
in creating the GATT and subsequently the WTO, joining other likeminded countries to negot iate 
rules dedicated to fairness, transparency, and market -oriented competition, grounded in the rule of 
law and predicated on values that benefited all. The system it had helped build embodied an 
optimistic vision .  
5.7.  However, the United States had been cle ar – and would continue to be clear – that the United 
States would not cede decision -making over its essential security to WTO panels. The Biden 
Administration remained committed to preserving US national security including by protecting 
human rights and d emocracy across the globe. For over 70 years, the United States had held the 
clear and unequivocal position that issues of national security could not be reviewed in WTO dispute 
settlement and the WTO had no authority to second -guess the ability of a WTO M ember to respond 
to a wide range of threats to its security. That position had been shared by many Members who had 
expressed similar views throughout previous decades at the GATT and WTO when their own security 
measures were questioned.11 Despite that shar ed history and understanding, some Members had 
recently chosen to pursue legal challenges to US national security measures in the WTO, 
undermining Members’ common vision for the WTO as a trade organization .  
5.8.  Adjudicating questions of national security in t he WTO was not only incompatible with the 
purpose of the WTO, a trade organization, but would not advance WTO Members' shared interests 
in the WTO as a forum for discussion and negotiation. From the beginning of the trading system, it 
had been the US view that the appropriate remedy where a Member was impacted by another 
Member's essential security measures was to seek a non -violation  / nullification or impairment claim. 
The reality was that Members had designed a WTO where rebalancing could take place with out 
interfering with a Member's sovereign responsibilities in the area of national security. When it came 
to national security, each Member played a unique role and carried unique responsibilities. The 
United States had a responsibility to lead. The United  States government was responsible for 
protecting its citizens' security, and, as a nation, the United States was responsible for its 
commitments to allies and partners. Neither of those responsibilities could be abridged by the WTO 
inserting itself into i ssues of national security. Nor should the roles and responsibilities of other 
Members .  
5.9.  In this respect, the Panels' reports were particularly troubling because they suggested that a 
Member may not take action to protect its essential security interests u ntil after irreparable damage 
was done – for example, after "armed struggles or outbreak of hostilities " – as if deterrence or 
preparedness were not critical to national security.12 Another report stated, notwithstanding 
"evidence of the United States and other Members being highly concerned about the human rights 
situation in Hong Kong, China ", that action might be taken only once the "situation has escalated to 
 
11 See statements by the European Communities, Canada, and Australia, GATT Council, Minutes of 
Meeting on 7 May 1982, C/M/157 ( 22 June 1982). See also Statements by Japan, New Zealand, Norway, 
Singapore, and the United Kingdom. GATT Council, Minutes of Meeting on 7 May 1982, C/M/157 ( 22 June 
1982).  
12 See Panel Report, United States – Certain Measures on Steel and Aluminium Products from China , 
paras. 7.138 -7.139 ( "Based on its ordinary meaning, 'war' involves a state of conflict characterized by the use 
of force  … the terms 'guerre ' and 'guerra ' similarly signify armed struggles or outbreak of hostilities  … the Panel 
considers that an 'emergency in international relations ' within the meaning of Article XXI(b)(iii) must be, if not 
equally grave or severe, at least co mparable in its gravity or severity to a 'war' in terms of its impact on 
international relations. ").  WT/DSB/M/47 5 
 
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  a point of breakdown  or near -breakdown in the relations between states ".13 Were the reports 
suggesting that the United States needed to take more numerous and severe actions to justify this 
national security action? The reports disregarded the reality of sovereign nations, wh o must 
anticipate – not react to – issues of national security. The WTO as an institution had no business 
asserting its own standard that action may only be taken when it was too late. It was to avoid an 
outcome such as this that, at every step of these pr oceedings, from the requests for consultations, 
to the DSB's establishment of panels, and throughout the panel proceedings, that the United States 
had been clear that the WTO was not the appropriate venue to adjudicate matters of national 
security. Therefo re, the United States could not support adoption of these fundamentally flawed and 
damaging reports, which would only further undermine the WTO .  
5.10.   Despite those clear statements, China persisted in pushing the WTO to undertake this review, 
while simultaneou sly imposing illegal unilateral retaliatory measures on US exports. Members had 
seen in the past how China had sought to use WTO dispute settlement to undermine tools that were 
meant to address unfair trade, such as disciplines on dumping and subsidies. As  the United States 
had previously stated, a WTO that served to shield China's non -market policies and practices was 
not in anyone's interest. Likewise, China should not now be able to use the WTO to interfere with 
Members' responses to national security is sues related to those policies and practices. Indeed, with 
this dispute and others, the United States saw China pursuing a strategy that would convert the 
WTO into a permanent venue for national security disagreements. The United States for long had 
been c lear that it was a mistake to begin adjudicating national security at the WTO. The United 
States warned at the time that this would open the door to future disputes that would further 
undermine the foundations of the WTO. Allowing these erroneous reports t o be adopted would only 
help erode the foundations of the multilateral trading system. The United States therefore had 
notified the DSB of its decision to appeal those damaging and erroneous reports .  
5.11.   While there might be those who would criticize the US d ecision to appeal – or perhaps any US 
response – the United States would continue taking necessary if unpopular actions when it was the 
right thing to do.14 The US decision to appeal should not be misinterpreted as asking the WTO to 
re-evaluate its nationa l security decisions. The responsibility was on the Members to tackle this issue 
head on. The United States believed that Members needed to deepen their collective understanding 
of this issue that was so critical to all of them. The United States intended to raise this fundamental 
issue as part of its discussions on reform of the WTO dispute settlement system. Ultimately, the 
United States believed that Members needed to clarify and adopt a shared understanding of the 
essential security exception, and there fore intended to seek an authoritative interpretation of 
Article  XXI of the GATT 1994, pursuant to Article IX of the WTO Agreement. When WTO Members 
could trust that the system they had built would respect the rules they had agreed – and served the 
purpose  it was designed to serve – then that system could contribute to upholding rules -based trade, 
instead of forcing Members to move away and apart . 
 
13 See Panel Report, United States – Origin Marking Requirement , para. 7.289 ( "tensions and differences 
in international relations cannot be characterized as resulting in an emergency in international relations unless 
the situation they give rise to is of a truly grave character for the relevant international relations that the 
situation implicates, in effect, a situation representing a breakdo wn or near -breakdown in those relations "); 
and para. 7.354 ( "In particular we are of the view that the following considerations tend to run counter to a 
conclusion that the situation has escalated to a point of breakdown or near -breakdown in the relations between 
states or other participants in international relations  … Indeed, the evidence on record shows that the United 
States and Hong Kong, China's international relations continue to involve cooperation in a number of policy 
areas. We further note that t rade has carried on between the United States and Hong Kong, China, largely as 
before. "); para. 7.357 ( "there is no evidence or argument on the record that the United States or any other 
Member has severed its diplomatic, consular, or economic relations wi th China or Hong Kong, China. "); and 
para. 7.358 ( "In summary, we consider that although there is evidence of the United States and other 
Members being highly concerned about the human rights situation in Hong Kong, China, the situation has not 
escalated t o a threshold of requisite gravity "). 
14 The United States had been clear from the beginning that, with respect to any WTO disputes, "WTO 
dispute settlement panels will not have any power to change US law or order such a change. Only Congress 
and the Admini stration can decide whether to implement a WTO panel recommendation and, if so, how to 
implement it. " (See Statement of Administrative Action accompanying the Uruguay Round Agreements Act, HR 
Doc. No. 316, at 659 ). "The statement of administrative action a pproved by the Congress … shall be regarded 
as an authoritative expression by the United States concerning the interpretation and application of the 
Uruguay Round Agreements and this Act in any judicial proceeding in which a question arises concerning such  
interpretation or application. " (19 USC 3512(d) ). WT/DSB/M/47 5 
 
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  5.12.   The representative of the European Union  said that t he European Union  took note that the 
panel reports ha d been appealed but that th ose appeals c ould not be currently heard by the Appellate 
Body, given that it c ould not function. The a ppeal was a right under the DSU, but its exercise 
amount ed to effectively blocking this dispute under  the present circumstances. For that reason,  the 
European Union  encourage d all parties to find a solution that preserve d the rights of both the 
complainant and the respondent under the DSU, such as the MPIA. In th ese circumstances, the 
European Union wishe d to make two comments on substance, reserving otherwise its position as 
third party for any appeal proceedings. First, the European Union would comment on the rejection 
of the invocation of Article XXI of the GAT T. Contrary to what ha d been suggested in some public 
statements, the panels did not pronounce on US security interests.  They simply stated, once more 
and like two prior p anels, that the security exceptions were not entirely "self-judging ". The panels 
also stated that there was no war or emergency in international relations between the parties.  This 
was also what the E uropean Union had argued. The E uropean Union  referred to its statement made 
at the 26 April 2019  DSB meeting,  in connection with the panel report in DS512: Russia – Traffic in 
Transit . The E uropean Union  fully recogni zed the special nature of security interests covered by the 
security exceptions, and the need for a margin of discretion for the Member invoking th ose 
exceptions. However, such discretion c ould not be unfettered, since that could give rise to abuse. In 
that s ense, when one consider ed the circumstances surrounding the measures at issue in the present 
dispute, the finding that they were not justified by a security exception should not come as a 
surprise. Secondly, the E uropean Union strongly disagree d with the panel's finding that the US  
"Section 232 measures " were not safeguard measures. On that point, the European Union  referred 
to its position in disputes DS548 and DS559 that were currently  suspended. The European Union  
noted in particular that the panel entir ely omit ted an important point: that rights for other Members 
to rebalanc e under Article 8 of the Agreement on Safeguards flow ed from the characterisation of a 
measure as a safeguard. Hence, th at characterisation had to  be an objective exercise, based on the 
nature of the measure  – it could not depend on the Member 's unilateral declaration.  
5.13.   The representative of Türkiye  consider ed that the avoidance of the implementation of 
unilateral protective trade measures by WTO Mem bers was essential for the smooth operation of the 
multilateral trading system. That being said, the additional duties imposed by the United States with 
respect to importation of aluminium and steel products constitute d a clear violation of its WTO 
obligat ions, as demonstrated  by the panel report in DS544. As the panel also conclude d, Türkiye 
was of the view that, to the extent that the measures at issue were inconsistent with certain 
provisions of the GATT 1994, they ha d nullified or impaired benefits accr uing to China under that 
Agreement. In light of the WTO -inconsistent measures of the United States, Türkiye kindly urge d 
the United States to  ensur e full compliance with the panel report.  
5.14.   The representative of Canada  address ed systemic considerations pertaining to the US appeals 
of the panel reports that were on the Agenda  of the present meeting  under items 5, 7, 8, 9 , and 11. 
Canada note d that since 11 December 2019, the Appellate Body ha d effectively been 
non-functioning. Art icle 3.10 of the DSU  provide d that, when a dispute ar ose, Members w ould 
engage in dispute settlement procedures in good faith and in an effort to resolve the dispute. The 
inability of the Appellate Body to carry out its appellate review responsibilities ha d undermined the 
established process under the DSU for dispute settlement.  But the obligation in Article 3.10 to make 
good faith efforts to resolve the dispute still st ood. No Member should seek to take unfair advantage 
of the present  impasse. In the conte xt of specific disputes, options exist ed to allow for completion 
of procedures as envisioned in the DSU. In particular, parties to a dispute m ight agree to procedures 
under Article 25  of the DSU , such as those set out in Annex 1 of the MPIA , to supplement the appeal 
process. Canada believe d it was essential that all parties to the dispute fulfil led their good faith 
commitment under Article 3.10 of the DSU by making every effort to find an acceptable solution. In 
the long run, no Member would benefit from a situation where disputes remain ed unresolved. A 
Member acting in good faith should find no comfort in an unfair and short -term advantage that ha d 
arisen because of the absence of a functioning Appellate Body.   
5.15.   The representative of the Russian Federation  said that  its statement would address multiple 
Agenda items concerning the steel and aluminium cases.  At the outset, the Russian Federation 
wished to refer to its previous statements at DSB meetings and reiterate d its deep concerns 
regarding the  ongoing practice of filing "appeals into the void ". Such practice entirely deprive d the 
Members of their rights, under the DSU, to settle disputes. Remarkably, the United States, an 
outspoken critic of the Appellate Body, continue d to make  recourse to app eal proceedings. Since the 
beginning of the impasse, Washington ha d filed numerous appeals, especially in disputes where the 
panel reports were not in  the favour of the United States, seizing the opportunity to block them. WT/DSB/M/47 5 
 
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  Retaining the status quo of the s ystem and actively using the "appellate trap ", it seem ed that the 
United States was reserving ample leeway in formulating its national trade policy. Turning to the 
reports, the Russian Federation welcome d the panels' overall conclusions that the additional tariffs 
on steel and aluminium, imposed by the United States, were inconsistent with the WTO agreements 
and were not justified under the security exceptions. The Russian Federation  also support ed the 
panels' finding s confirming that Article XXI of the GATT 1994 was subject to review. The destructive 
attempts made by the United States to use th at Article as a blatant escape clause from its 
international obligations should not succeed. At the same time, Russia wished  to share some views 
regarding particular findings and reasoning by the panels.  
5.16.   First, Russia regret ted that the panels had failed to recognize the United States ' additional 
tariffs as safeguards. Unfortunately,  the panels had decided to focus on the provis ions of 
Article  11.1(c) of the Agreement on Safeguards and not on the measures at issue themselves. The 
panels in these disputes de facto  refused to consider the objective features of the measures, which 
was necessary for their proper legal qualification. Instead, they based their conclusions on the 
qualification of the measures at issue under domestic law and on various statements by the United 
States to official WTO bodies, finding that such evidence was dec isive in the context of 
Article  11.1(c). Doing so made  domestic law classifications determinative of the measures at issue , 
which d id not seem to comply with the requirement to make an objective assessment of the matter 
before the panel.  
5.17.   Second, the Unite d States had failed to discharge its burden of proof, as it did not refer to a 
particular subparagraph of Article XXI(b) in justification of its measures, and it did not provide 
supporting evidence and reasons why the specific circumstances under each subp aragraph of 
Article  XXI(b) of the GATT 1994 appl ied to its measures at issue. It was well -established that if a 
defending party invoke d an affirmative defen ce, it shall bear the burden of proving that the 
conditions set out in the exception were met.  Howev er, the panels ignored th at fact. They concluded 
that the United States ' defen ce was based on subparagraph (iii) ( i.e.,"taken in time of war or other 
emergency in international relations "). That conclusion was derived from materials on the record 
and certain assertions made by the United States during  the proceedings. For example, the United 
States argued that available information concerning its measures "could be understood  to relate 
most naturally  to the ci rcumstances described in Article XXI(b)(iii) ". The panels themselves d id not 
sound convinced and absolutely sure as to whether or not the US referred to the circumstances 
described in Article XXI(b)(iii). However, despite th at high level of uncertainty the y proceed ed on 
that presumption , which clearly was not enough to make a prima facie  case for the defending party. 
The Russian Federation w ould continue to closely monitor and follow up on development s. 
5.18.   The representative of Hong Kong, China  said that her delegations would make a statement 
regarding both this Agenda item requested by China and the following Agenda item requested by 
Türkiye. Hong Kong, China welcome d the rulings made by the panels in the four dispute s (DS544, 
DS552, DS556 and D S564) initiated by China, Norway, Switzerland,  and Türkiye respectively , 
against the United States ' global imposition of Section 232 tariffs on steel and aluminium imports, 
in which Hong Kong, China had  participated as a third party. All four panels ha d concluded that the 
United States ' measures were inconsistent with WTO rules, against the spirit of the GATT 1994, and 
were not conducive to promoting international trade. All four panels also recommend ed that the 
United States bring its WTO -inconsistent meas ures into conformity with its obligations under the 
GATT 1994. Hong Kong, China note d that the United States ha d lodged appeals against all four panel 
reports. While Hong Kong, China  respect ed a Member 's right to appeal, the United States ' move to 
lodge ap peals while continuing its blockage of the Appellate Body appointments was tantamount to 
refusing to adopt and implement the panels ' recommendations. Th at demonstrate d yet again the 
grave consequences of the United States ' blocking of appointments to the Appellate Body. Hong 
Kong, China reiterate d its call to resolve the Appellate Body impasse as soon as possible, so that 
Members c ould have a fully and well -functioning, binding two -tiered dispute settlement system for 
resolving disputes and enforcing the obligations under  the WTO Agreements. This was of utmost 
importance to safeguarding the rights and obligations of WTO Members, and maintaining the stability 
and predictability of the rules -based multilateral trading system.  
5.19.   The representative of China  said that  in response to US statement, China felt obliged to react 
and provide some comments, in particular on the nature of the national security exception  clause. 
As multiple  panels ha d now demonstrated, the US interpretation of Article XXI was unfounded as a 
matter of treaty interpretation. Seven panels ha d now examined the contention that the security 
exceptions were completely "self-judging " and ha d all rejected that contention. The panel in the WT/DSB/M/47 5 
 
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  present dispute reached that conclusion, as did the two prior panels in Russia – Traffic in Transit  
(DS512) and Saudi Arabia – IPRs (DS567). The most comprehensive assessment of this issue, 
however, was contained in the recent  panel report in US – Origin M arking Requirement  (DS597), 
which w ould be addressed  later in the course of the  meeting . As that panel had demonstrated, the 
US interpretation of Article XXI of the GATT 1994 d id not comport with the ordinary meaning of the 
English text, c ould not be recon ciled with the equally authentic Spanish text, was inimical to the 
object and purpose of the GATT 1994, and was refuted by the negotiating history of that provision, 
among other interpretative considerations. However fervently the United States m ight wish 
otherwise, the constant reassertion of its position that Article XXI was completely "self-judging " did 
not make it so. Nowhere was the United States' wishful thinking more evident than in its perplexing 
reliance on the negotiating history of Article XXI. A t the Trade Policy Review of the United States 
held the previous  month, the distinguished US delegate purported to "remind " the Members that 
"the negotiating history of Article XXI(b) confirm ed the drafters intended this provision to be 
self-judging ". In China's view,  the United States must have had access to a different negotiating 
history of Article  XXI. Every panel and other objective observer who ha d examined the documented 
negotiating history of Article XXI ha d reached the same conclusion: th e legislative  history confirm ed, 
beyond doubt, that the drafters of Article XXI intended the subparagraphs of Article XXI(b) to impose 
objective constraints on w hen Members m ight invoke th at exception to justify non -compliant 
measures for reasons of national security. As the United States  explained at the time, the provision 
that ultimately became Article XXI was carefully drafted after considerable thought to pre serve the 
proper balance, i.e. , to allow Members to address "real essential security interests " while at the 
same time not allowing Members to invoke Article XXI to justify "anything under the sun " and 
measures  which really ha d a commercial purpose. China firmly believed that a ny non -compliant 
measures of protectionist nature definitely fit into the second category , which the U nited States 
intended to avoid at that time. The representative of China  conclude d by quoting Mr James Bacchus, 
the former A ppellate  Body member, in his recent article : "if the assertion that the WTO has no 
jurisdiction on national security matters is acceptable by jurists, it would open up a black hole of 
national security in which professed national security measures of all kinds wou ld swallow up the 
entirety of all WTO obligations. Th at was a scenario that  he believe d the vast majority of Members 
wished  to avoid ". 
5.20.   The DSB took note  of the statements.  
6  STATEMENT BY TÜRKIYE REGARDING THE PANEL REPORT IN THE DISPUTE: "UNITED 
STATES – CERTAIN MEASURES ON STEEL AND ALUMINIUM PRODUCTS " (DS564)  
6.1.  The Chairperson  said that this item was on the Agenda at the request of Türkiye, and she 
invited the representative o f Türkiye to speak.  
6.2.  The representative of Türkiye  said that Türkiye wishe d to make a statement regarding  the 
dispute DS564 : "United States – Certain Measures on Steel and Aluminium Products ". Türkiye was 
disappointed that the United States ha d chosen to ap peal the panel report. As Members all  knew, in 
the present circumstances, without a functional Appellate Body, appealing a panel report was 
effectively a veto against the adoption of the panel report.  Appealing a panel report "into the void " 
inflict ed great harm upon the multilateral trading system.  Doing so undermine d, indeed effectively 
eliminate d, the binding dispute settlement system as Members had  come to know it in the p revious 
decades.  It eliminate d the ability of WTO Members to obtain  binding rulings about whether the rights 
granted to them under the covered agreements were being respected by other Members.  Indeed, 
immediately after this panel report and the reports in the three parallel disputes were released, the 
USTR had issued stat ements condemning the panel reports. In th ose statements , it was suggested 
that the U nited States  was unconcerned that its measures ha d been found to be WTO-inconsistent 
and about the impact on the rights of Türkiye, China, Norway, or Switzerland.  The US notification of 
appeal was a confirmation of that statement. The United States ' conduct was even more concerning 
because the United States ha d to date opposed the numerous proposals of many WTO Members to 
launch the selection processes for the vacancies of the Appellate Body members.  Türkiye recall ed 
that it ha d for a long time been one of the co -sponsors of th ose long -standing proposals.  
6.3.  Türkiye wished to first comment on the findings on Article XXI and said that w ith respect to the 
substance of the report s, Türkiye was very pleased that the panel ha d correctly found that the US 
Section 232 measures c ould not be justified as national security measures under Article XXI.  This 
Panel was the third of four panels in recent years that ha d clarified unambiguously that Article XXI 
as a whole was not self -judging, even if some elements of Article  XXI provide d extensive discretion WT/DSB/M/47 5 
 
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  to Members.  For instance, in accordance with the ordinary meaning of its terms, subparagraph (iii) 
of Article XXI( b) require d an objective inquiry as to whether the challenged action was taken in a 
time of "emergency in international relations ". Türkiye underst ood the importance to each Member 
of their national security concerns.  All Members  regularly  had to  take acti on to protect their security 
interests.  However, th ose interests should not become an unlimited means of avoiding their 
multilateral obligations.  Türkiye therefore welcome d the panel's interpretative approach, which 
properly reflect ed the balance contained  in the text of Article XXI and the intentions of the drafters 
of the GATT 1947, led at the time by the United States.  Any other approach to Article XXI would not 
only fail to respect the explicit wording of Article XXI, but would also potentially undermin e the entire 
rules-based multilateral trading system.  Article XXI could be invoked by any Member at any time for 
any reason to justify any kind of measure, without any limiting principle.  In Türkiye's view, the US 
Section 232 measures  were a good example.  The panel had correctly found that any alleged global 
excess capacity in steel and aluminium, and the United States ' wish to protect its steel and 
aluminium producers, could not constitute an "emergency in international relations " within the 
meaning of Art icle XXI(b)(iii).  The panel's ruling, put more broadly, mean t that global economic 
trends that ha d an impact on a domestic industry had to  be dealt with by using the numerous other 
policy tools that the drafters of the WTO Agreements had created precisely for th at purpose, rather 
than by recourse to the national security exception.  The panel's ruling s ought  to prevent any Member 
from being a ble to declare measures taken to protect any industry in any set of circumstances to be 
of national security relevance, so as to prevent dismantling the entire GATT/WTO legal system built 
meticulously over the decades since 1947.   
6.4.  Second, Türkiye wished to  comment on the panel's analysis and said that w hile Türkiye was 
pleased with the panel's ultimate ruling on Article XXI, Türkiye note d that this panel's interpretative 
approach to Article XXI(b)(iii) differ ed somewhat from the two previous panels in DS512  and DS567.  
For instance, this panel had engaged in a more extensive textual -grammatical analysis of Article XXI 
than the two other panels, an analysis that covered no less than 14 paragraphs.15 Türkiye in principle 
welcome d that a panel w ould not merely f ollow the path trodden by previous panels.  However, 
Türkiye was concerned about some aspects of the panel's analysis.  For instance, in its 
textual -grammatical analysis, the panel reached the intermediate conclusion that the grammatical 
construction of Arti cle XXI(b) did not "definitively resolve[] whether the subparagraphs are qualified 
by the phrase 'which it considers ' as part of a  'single relative clause ' as contended by the United 
States. "16 In Türkiye 's view, th at conclusion was not correct, because the United States ' proposed 
reading – that the discretion accorded by the terms "considers necessary " in the chapeau of 
Article  XXI(b) extend ed also to the terms of the three sub -paragraphs – was demonstrably 
incompatible with the grammatical struc ture of Article XXI.  In reaching its conclusion, the panel also 
completely ignored almost all Türkiye 's textual and grammatical arguments and numerous examples 
precisely on this point.   
6.5.  Türkiye also regret ted that the panel had permitted the United States to validly  invoke its 
Article XXI defen ce after the first substantive meeting.  Türkiye – together with the other 
co-complainants – had argued that the United States ' Article XXI defen ce was articulated too late in 
the proceedings, in violation of the panel's own Working Procedures, and thus violated the 
co-complainants ' due process rights. The panel had rejected the co -complainants ' arguments.  But 
the panel's defen ce of the United States actually prove d Türkiye 's point.  The panel stated that : "The 
United States' first written submission focused on the argument that Article XXI of the GATT 1994 
is "self-judging " as a defence against WTO -inconsistencies and that its invocation by a Member is 
"non-justiciable " in WTO dispute settlement proceedings.  Following the first substantive meeting, 
the United States argued that 'publicly available information ' concerning its measures 'could be 
understood to relate most naturally to the circumstance described in Article XXI(b)(iii) '."17 The panel 
thus confirm ed explicitly that the United States did not provide any argument with respect to its 
Article XXI(b)(iii) defen ce, and had thus also failed to connect that provision with evidence  on the 
record , until after the first substantive meeting.  Pleading in general  that Article  XXI was self-judging 
was precisely the opposite of relying on a specific subparagraph of that provision and supporting 
that argument by pointing to relevant evidence.  Rule 3(1) of the panel's Working Procedures 
demand ed that a party present ed the "facts of the case and its arguments  … [b]efore the first 
substantive meeting of the panel with the parties ". The time after the first meeting was intended for 
 
15 Paragraphs 7.124 to 7.137.  
16 Paragraph 7.134.  
17 Paragraph 7.147.  WT/DSB/M/47 5 
 
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  "rebuttal " only, as per Rule 3(2).18 An affirmative defen ce such as Article XXI was not part of a 
rebuttal, but rather part and parcel of a responding Member 's arguments to be presented at the 
latest at the first hearing.  Similarly, each party was required to "submit all evidence to the panel no 
later than during  the first substantive meeting, except evidence necessary for purposes of rebuttal ". 
Moreover, part of presenting evidence was, of course, connecting that evidence to one 's arguments.  
The United States did none of that by the first substantive meeting, but  only after that meeting , and 
even then only gradually  – initially in its second written submission and subsequently in its responses 
to the panel's second set of questions.  While Türkiye of course acknowledge d that the panel 
ultimately rejected the US Article XXI defen ce on substance, th at did not justify the panel's setting 
aside its own Working Procedures and permitting the respondent to submit key arguments in an 
untimely manner.  
6.6.  With regard to the safeguard finding, Türkiye was disappointed with the panel's finding that 
the United States ' Section 232 measures were not safeguard measures.  The panel's analysis went 
against the well -established principle that the legal characterization of a measure was driven by its 
objective characteristics.  Instead, the panel attached excessive weight to self -designations in 
domestic law and choices by Members as to how to comply w ith their WTO notification obligations, 
without analy sing objectively the substance of the Section 232 measures.  This set a highly 
questionable precedent, because it open ed up possibilities for WTO Members to evade their WTO 
commitments through self -design ation.   
6.7.  The final remark by Türkiye concern ed the length of the proceedings.  This panel had been  
established in November 2018 and thus had issued its report more than four years later.  Türkiye 
obviously appreciate d that the panel proceedings were delayed i n part due to  the COVID -19 
pandemic and the parties ' wish to wait for an opportunity to hold the second hearing in person.  
However, significant delays continued to occur even after the pandemic abated.  The second hearing 
had been  held in January 2021 and t he descriptive part of the panel report had been  issued on 
15 July 2021.  The interim report had then been issued to the parties almost one year later, on 
29 June 2022.  The Final report to the parties had been  issued again after an unusual delay, on 
16 November 2022.  Thus, it would appear that there were protracted delays in this process even 
apart from the COVID -19 pandemic.  The panel had never explained the reasons for these unusual 
delays, in particular the one -year gap between the issuance of the descriptive part and the interim 
report.  Türkiye was concerned that lengthy proceedings of this kind undermine d the confidence of 
Members not o nly in the practical utility of dispute settlement proceedings, but also their 
transparency and objectivity.  
6.8.  The representative of the United States  said that the United States noted that Türkiye had 
already illegally retaliated, and referred to its previ ous statement under the previous Agenda item 
concerning  United States – Certain Measures on Steel and Aluminum Products  (DS544) .  
6.9.  The representative of China  said that a s a third party in this dispute, China appreciate d the 
panel's impartial and objective rulings and recommendations. This panel decision once again 
confirm ed that the security exception was not a "safe harbo ur" for unilateralism and protectionism. 
Any Member, regardless of its size and power, shall refrain from taking unilateral and protectionist 
measures in the name of "national security ", or using it as a vehicle to disregard the core principles 
of the WTO including non -discrimination and openness. China was  deeply disappointed that the 
United States had , once again , taken advantage of the Appellate Body crisis created by itself to 
evade its multilateral obligations. China  urged the United States to faithfully hono ur its obligations 
under the covered ag reements.  
6.10.   The representative of the European Union  said that t he European Union wished to refer to its 
statement made previously  at the present  meeting concerning dispute DS544.  
6.11.   The DSB took note  of the statements.  
 
18 Rule 5(1)  of the Working Procedures . WT/DSB/M/47 5 
 
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  7  STATEMENT BY HONG KONG, CHINA REGARDING THE PANEL REPORT IN THE DISPUTE: 
"UNITED STATES – ORIGIN MARKING REQUIREMENT " (DS597)  
7.1.  The Chairperson  said that this item was on the Agenda at the request of Hong Kong, China, 
and she invited the representative of Ho ng Kong, China to speak.  
7.2.  The representative of Hong Kong, China  said that Hong Kong, China thank ed the Panelists  for 
their professionalism in their close examination and objective assessment of the dispute United 
States – Origin Marking Requirement (DS597)  in accordance with the DSU. Hong Kong, China 
appreciate d the tireless efforts put in by the Panelists , as demonstrated by the detailed analysis and 
rulings set out in the panel report, which had been  circulated to the wider Membership on 
21 December 2022.  Hong Kong, China also  appreciat ed the valuable contributions made by the third 
parties19 in this dispute, as well as the dedicated support of the WTO Secretariat throughout the 
panel process. Hong Kong, China welcome d the findings of the panel report , which categorically 
refute d the erroneous views of the United States, and clearly conclude d that the origin marking 
requirement arbitrarily imposed on Hong Kong products by the United States was inconsistent with 
the WTO rules.  More specifically, the Unit ed States ha d violated the most -favoured -nation treatment 
obligation, which was a bedrock principle of the WTO and a cornerstone of the multilateral trading 
system. The panel had found that the United States ' requirement accord ed less favourable treatment 
to products of Hong Kong, China; it also concluded that the United States ha d not demonstrated 
that such measure was justified on the ground of security exceptions under Article XXI(b) of the 
GATT 1994.  
7.3.  The panel ha d rightfully reached its conclusions after a meticulous assessment of the arguments 
presented in this dispute. The discriminatory requirement ha d not only modified the conditions of 
competition to the detriment of products of Hong Kong, China, but also conf used consumers in the 
United States. The "Made in Hong Kong " label was well received and respected by Hong Kong, 
China's  trading partners globally, and it signifi ed Hong Kong, China 's unique status as a separate 
customs territory under the principle of "one country, two systems " and a separate WTO Member in 
its own right. The panel ha d also scrupulously examined the United States ' claims on the 
"self-judging " nature of the security exceptions clause  under Article XXI of the GATT 1994. The panel 
had clearly pointed out that while the multilateral trading system allow ed for sufficient flexibility for 
Members to adopt measures they consider ed necessary for the protection of their security interests, 
it at the same time also ensure d that th at flexibility was exercised within the limits intended by its 
drafters.20  
7.4.  Hong Kong, China strongly regret ted the statement issued by the United States that the panel 
report contained flawed interpretations and conclusions, especially in relation to the interpretation 
of Article XXI of the GATT 1994. As similarly demonstrated by the conclusions reached by the other 
panels' rulings in  the United States – Certain Measures on Steel and Aluminium Products cases 
(DS544, DS552, DS556 and DS564) which dealt with the United States ' imposition of global tariffs 
on steel and aluminium imports . Hong Kong, China  believe d it was clear to any discerning eye that 
the United States ha d been abusing the concept of essential security interests with its erroneous 
interpretation of Article XXI of the GATT 1994 as entirely self -judging. The four panel reports in 
those cases , as well as two earlier panel reports in Russia – Measures Concerning Traffic in Transit 
(DS512) and Saudi Arabia – Measures Concerning the Protection of Intellectual Property  Rights 
(DS567) , had all consistently refuted the United States ' assertion and interpretation of the security 
exceptions under the relevant WTO covered agreements, and reinforced that there was a limit to 
measures imposed by Members even on the ground of s ecurity, such that the predictability of the 
multilateral trading system c ould be preserved.  
7.5.  It was most regrettable to note that despite the panel's findings, the United States maintain ed 
its erroneous position by not removing the origin marking requirem ent, which was not conducive to 
resolution of the dispute. Hong Kong, China also regret ted that the United States ha d decided to 
appeal against the panel's findings, albeit the panel report ha d reached an unequivocal and fair 
conclusion that the measure imposed by the United States was inconsistent with the fundamental 
most-favoured -nation principle of the WTO. While Hong Kong, China recognize d and respect ed WTO 
Members ' right to appeal in accor dance with the DSU, that was premised on having in place a fully 
 
19 Third parties include d Brazil, Canada, China, the E uropean Union, India, Japan, Korea, Norway, the 
Russia n Federation , Singapore, Switzerland, Türkiye and Ukraine.   
20 See 7.148 of the Panel Report.  WT/DSB/M/47 5 
 
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  functioning dispute settlement system, as well as the collective good faith and efforts of all WTO 
Members to make the system work, or at least not to disrupt it. The United States was, on on e hand, 
creating an impasse in appointment s to the Appellate Body notwithstanding the repeated calls of the 
vast majority of WTO Members, while , on the other hand, taking advantage of the impasse to evade 
its responsibilities as a WTO Member to bring its m easure s into conformity with its obligations under 
the WTO covered agreements. By blocking appointments and holding the system hostage, the United 
States was single -handedly derailing the proper functioning of the WTO dispute settlement system, 
and, in the  present case, deliberately delay ing the implementation of the panel's clear and sound 
recommendations. Hong Kong, China f ound this situation deeply disturbing as this would ultimately 
undermine the multilateral trading system with the WTO at its core.  
7.6.  Hong Kong, China  reiterated its staunch support for the rules -based multilateral trading 
system, and strongly believe d that WTO Members should play by the rules and take the rights and 
obligations under the WTO covered agreements seriously.  In this connectio n, Hong Kong, China  
called on the United States to take a constructive stance toward dispute settlement system reform. 
To conclude, Hong Kong, China urge d the United States to withdraw immediately its unilateral 
measure s that were inconsistent with the WTO  rules. Hong Kong, China  emphasize d once again the 
importance for all WTO Members to constructively participate in the discussions on dispute 
settlement system reform, with a view to restoring without delay a fully -functioning, binding and 
two-tiered dispu te settlement system accessible to all Members.  
7.7.  The representative of the United States  said that the United States referred to its previous 
statement concerning United States – Certain Measures on Steel and Aluminum Products  (DS544) , 
and took the opportunity to remind Members of the serious consequences of the flawed 
interpretation of Article XXI of the GATT 1994 in the US – Origin Marking Requirement  panel report. 
The report in this dispute further illustrated the deep concerns that  the United States had raised 
earlier in this meeting – and over the course of this dispute. The challenged actions with respect to 
Hong Kong, China were based on well -grounded determinations implicating US essential security 
interests relating to democrac y and human rights. And the United States considered democratic 
principles and human rights to be critical to its essential security interests – as reflected in its 
National Security Strategy. Those  actions followed a series of actions by the People’s Repu blic of 
China that had increasingly denied the autonomy and freedoms promised to the people of Hong 
Kong, which culminated in part with the national security legislation imposed by China  on Hong 
Kong. As the challenged Executive Order stated on its face: "Under this law, the people of Hong 
Kong may face life in prison for what China considers to be acts of secession or subversion of state 
power —which may include acts like last year's widespread antigovernment protests. The right to 
trial by jury may be susp ended. Proceedings may be conducted in secret. China has given itself 
broad power to initiate and control the prosecutions of the people of Hong Kong through the new 
Office for Safeguarding National Security. At the same time, the law allows foreigners to be expelled 
if China merely suspects them of violating the law, potentially making it harder for journalists, human 
rights organizations, and other outside groups to hold the PRC accountable for its treatment of the 
people of Hong Kong. " 
7.8.  The US Secretary o f State had since continued to certify that Hong Kong, China, did not warrant 
treatment under US law in the same manner as prior to 1 July 1997, in light of its findings that China 
had taken new actions to erode rights and freedoms in Hong Kong, in direct contravention of its 
obligations under the Hong Kong Basic Law and the Sino -British Joint Declaration, which had 
promised Hong Kong a high degree of autonomy.21 Indeed – and as the United States had 
documented to the Panel – over the course of the dispute proceedings with Hong Kong, China, many 
of those serious concerns further materialized in Hong Kong. Most prominently, the National Security 
Law has been used as a blunt tool to quash democratic dissent, and as a result the electoral system 
in Hong Kong, C hina, was overhauled by "limiting political participation, reducing democratic 
representation, and stifling political debate ".22  
7.9.  For example, former lawmakers and prominent pro -democracy activists were subsequently 
arrested or fled Hong Kong, China, to se ek political asylum since the passage of the law. Many who 
 
21 2022 Hong Kong Policy Act Report ( 31 March 2022); 2021 Hong Kong Policy Act Report 
(31 March 2021).  
22 Assault on Democra cy in Hong Kong, Press Statement, Anthony J. Blinken, Secretary of State 
available at https://www.state.gov/assault -on-democracy -in-hong-kong. WT/DSB/M/47 5 
 
- 31 - 
 
  remained were charged and sentenced to prison.23 On 14 July 2020, China warned that elections to 
select pro -democracy candidates for Legislative Council might violate the National Security Law.24 
Subsequently, on 30 July 2020, various pro -democracy candidates were barred from running in the 
September 2020 Legislative Assembly election based on an alleged risk of collusion with foreign 
forces and opposition to the National Security Law.25 On 11 Novem ber 2020, 15 pro -democracy 
politicians resigned from the legislature due to a measure imposed by Beijing to disqualify four sitting 
legislative members deemed to be "unpatriotic ".26 On 6 January 2021, more than 50 former 
lawmakers and pro -democracy activis ts were arrested for participating in or organizing elections in 
2020.27  
7.10.   The National Security Law had also had a chilling effect on the freedoms of speech and of the 
press. On 2 July 2020, only two days after passage of the law, the Hong Kong government declared 
a protest slogan illegal because it breached the National Security Law.28 On 5 July 2020, the 
Education Bureau called for review of textbooks to ensure they did not violate the National Security 
Law.29 On 8 July 2020, the government banned in scho ols the singing of a popular protest song.30 
On 10 August 2020, media executive Jimmy Lai was arrested under the National Security Law for 
suspected collusion with foreign forces, and he was subsequently sentenced to prison for protests in 
2019.31 The authorities later raided Apple Daily, the publication which he founded, on charges of 
using reporting to endanger national security32, forced its closure33, charged its executives with 
collusion with a foreign country, and denied their bail.34 On 4 Fe bruary 2021, the Education Bureau 
released guidelines for schools on national security and banned any political participation or 
expression on campuses.35 The Hong Kong Professional Teachers' Union, an organization with around 
 
23 US – Origin Marking Requirement  (DS597) , Opening Statement of the United States at the Panel 's 
First Videoconference with the Parties (DS597 US Opening Statement), para. 24; 2021 Hong Kong Policy Act 
Report ( 31 March 2021); see also Hong Kong Activists Sentenced For Their Role In Anti -Governmen t Protest, 
NPR ( 2 December 2020) available at https://www.npr.org/2020/12/02/941032196/hong -kong-activists -
sentenced -for-their-role-in-anti-government -protest .  
24 DS597 US Opening Statement, para. 25; Beijing 's Hong Kong office warns pro -democracy poll could 
violate new security law, Reuters ( 13 July 2020) available at https://www.reuters.com/article/us -hongkong -
security/beijings -hong-kong-office -warns -pro-demo cracy -poll-could -violate -new-security -law-idUSKCN24F05Y .  
25 DS597 US Opening Statement, para. 25; 2021 Hong Kong Policy Act Report (March 31, 2021); EU 
calls for "immediate release " of Hong Kong activists, AP News ( 6 January 2021) available at 
https://apnews.com/article/europe -democracy -hong-kong-arrests -china -
71296e353e67b68f7bba590bf7048122 .  
26 DS597 U.S. Opening Statement, para. 26; Hong K ong 2020 Human Rights Report at 10; Hong Kong 
opposition lawmakers all quit after four members ousted, The Guardian ( 11 November 2020) available at 
https://www.theguardian.com/world/2020/nov/11/china -pro-democracy -hong-kong-lawmakers -opposition -
oust.  
27 DS597 US Opening Statement, para. 26; 2021 Hong Kong Policy Act Report ( 31 March 2021); EU 
calls for "immediate release " of Hong Kong activi sts, AP News ( 6 January 2021) available at 
https://apnews.com/article/europe -democracy -hong-kong-arrests -china -
71296e353e67b68f7bba590bf704 8122. 
28 DS597 US Opening Statement, para. 28; Hong Kong Says Common Protest Slogan Calling for 
"Revolution " is Now Illegal Under National Security Law, Time ( 3 July 2020) available at 
https://time.com/5862683/hong -kong-revolution -protest -chant -security -law; The Government of the Hong 
Kong Special Administrative Region, Government Statement ( 2 July 2020) available at 
https://www.info.gov.hk/gia/general/202007/02/P2020070200869.htm . 
29 DS597 US Opening Statement, para. 28; 2021 Hong Kong Policy Act Report ( 31 March 2021).  
30 DS597 US Opening Statement, para. 28; Hong Kong bans protests anthem in schools as fears over 
freedoms intensify, Reuters ( 8 July 2020) available at https://www.reuters.com/article/us -hongkong -protests -
education/hong -kong-bans-protest -anthem -in-schools -as-fears-over-freedoms -intensify -idUSKBN2490OE .  
31 DS597 US Opening Statement, para. 29; 20 21 Hong Kong Policy Act Report ( 31 March 2021); 
Prominent Hong Kong Publisher Arrested Under New National Security Law, NPR ( 10 August 2020) available at 
https://www.npr.org/2020/08/10/900758905/prominent -hong-kong-publisher -arrested -under -new-national -
security -law. 
32 DS597 US Opening Statement, para. 29; Two Apply Daily executives charged with collusion with 
foreign country, Reute rs (18 June 2021) available at https://www.reuters.com/world/china/hk -pro-democracy -
tabloid -apple -daily-increases -production -after-police -raid-2021-06-18. 
33 DS597 U S Opening Statement, para. 29; Statement by President Joe Biden on Hong Kong 's Apple 
Daily, The White House Press Releases ( 24 June 2021) available at https://www.whitehouse.gov/briefing -
room/statements -releases/2021/06/24/statement -by-president -joe-biden -on-hong-kongs -apple -daily. 
34 DS597 US Opening Statement, para.  29; Two Apply Daily executives charged with collusion with 
foreign country, Reuters ( 18 June 2021) available at https://www.reuters.com/world/china/hk -pro-democracy -
tabloid -apple -daily-increases -production -after-police -raid-2021-06-18. 
35 DS597 US Opening Statement, para. 30; 2021 Hong Kong Policy Act Report ( 31 March 2021); 
Education Bureau Circular No. 3/2021, National  Security: Maintaining a Safe Learning Environment Nurturing WT/DSB/M/47 5 
 
- 32 - 
 
  95,000 members, was disbanded  due to the National Security Law.36 More recently, Hong Kong 
University removed a statue from its campus out of fear of legal risks.37 
7.11.   This was not a comprehensive list of developments that had occurred since the National 
Security Law was enacted, but the picture was clear. Indeed, many Members had publicly shared 
the US concerns about the erosion of human rights, speech and press freedoms in Hong Kong, 
China.38 The United States had explained to the panel that it considered democratic principles and 
human rights to be critical to its essential security interests. The United States acknowledged that 
not all Members valued democratic principles or human rights, or perceived them as relevant to their 
essential security interests. But the United States did – as was reflected in the US National Security 
Strategy39 – and it was on that basis that the United States had adopted the measure challenged by 
Hong Kong, China. Yet, the US evaluation of those circumstances, and its determination that they 
required resp onsive action, was disregarded. Instead, the panel had found that the pattern of human 
rights abuses and the erosion of autonomy in Hong Kong, China did not "meet the requisite level of 
gravity to constitute an emergency in international relations under Ar ticle XXI(b)(iii) ".40 The panel 
based its conclusion on a subjective assessment of the state of relations between Members, including 
the United States, China, and Hong, Kong, China41, including in part on the finding that the United 
States continued to coo perate with Hong Kong, China, in certain areas.42  
7.12.   The United States fundamentally disagreed with the panel's approach, which suggested that 
a state ought to defer consideration of its essential security interests until after a breakdown in 
relations. A WT O Member could not be expected to wait until it was too late to act, or be required 
to sever relations as a prerequisite for other action it considered necessary. The WTO did not have 
the competence or the authority to assess the foreign affairs relationsh ips of a Member. Nor did it 
have the competence or authority to pass judgment on the value that the United States – and some 
other Members – placed on freedom and human rights, and the actions they took in seeking to 
secure those values. Again, the United States could not support adoption of this fundamentally 
flawed and deeply concerning report, which would only further undermine the WTO.  
7.13.   The representative of the European Union  said that, a s a third party in this dispute, the 
European Union  wished  to offer the following observations. The E uropean Union  commend ed the 
panel for the precision and convincing analysis with which it distinguished between marks of origin 
and rules of origin , and welcome d yet another confirmation from a WTO panel that the invocation of 
the security exceptions was not entirely self -judging. In this respect, the E uropean Union  again 
referred to its statement in the DSB meeting of 26 April 2019 concerning the Panel Report in DS512 , 
Russia – Traffic in Transit . In the E uropean Union's view, Article XXI of the GATT, as correctly 
 
Good Citizens ( 4 February 2021) available at  
https://applications.edb.gov.hk/circular/upload/EDBC/EDBC21003E.pd f. 
36 DS597 US Opening Statement, para. 30; Hong Kong teachers ' union to disband due to "drastic " 
political situation, Reuters ( 10 August 2021) available at https://www.reuters.com/world/asia -pacific/hong -
kong-teachers -union -disband -due-drastic -political -situation -2021-08-10.  
37 DS597 US Second Written Submission , fn 6; Hong Kong University orders removal of Tiananmen 
Square massacre statue, The Guardian ( 8 October 2021) available at 
https://www.theguardian.com/world/2021/oct/09/hong -kong-university -orders -removal -of-tiananmen -square -
massacre -statue .  
38 DS597, US Opening Statement at Second Videoconference with the Panel, para. 3 ; Media Freedom 
Coalition Statement on Closure of Media Outlets in Hong Kong, Office of the Spokesperson, U.S. Department of 
State ( 9 February 2022) ( https://www.state.gov/media -freedom -coalition -statement -on-closure -of-media-
outlets -in-hong-
kong/#:~:text=Media%20Freedom%20Coalition%20Statement%20on%20Closure%20of%20Media%20Outlet
s%20in%20Hong%20Kong, -
Media%20Note&text=The%20undersigned%20members%20of%20the,local%20media%20in%20Hong%20Kon
g). 
39 US National Security Strategy (October 2022), available at https://www.whitehouse.gov/wp -
content/uploads/2022/10/B iden-Harris -Administrations -National -Security -Strategy -10.2022.pdf  ("Americans 
will support universal human rights and stand in solidarity with those beyond our shores who seek freedom and 
dignity, just as we continue the critical work of ensuring equity a nd equal treatment under law at home. We 
will work to strengthen democracy around the world because democratic governance consistently outperforms 
authoritarianism in protecting human dignity, leads to more prosperous and resilient societies, creates stron ger 
and more reliable economic and security partners for the United States, and encourages a peaceful world 
order. "). 
40 Panel Report, US – Origin Marking Requirement , para. 7.353.  
41 Panel Report, US – Origin Marking Requirement , paras. 7.307 and 7.324.  
42 Panel Report, US – Origin Marking Requirement , para. 7.354.  WT/DSB/M/47 5 
 
- 33 - 
 
  interpreted by the panel in that dispute, str uck a balance between legitimate latitude for WTO 
Members to invoke the security exceptions for genuine security measures and the need to curtail 
potential abu se. Regarding the specific dispute, the panel appear ed to have given a different 
interpretation to the concept of "emergency in international relations " to that given by the two 
previous panels dealing with this question. This panel required a "breakdown o r near -breakdown in 
the relations " whereas the two earlier panels spoke of "a situation of … latent armed conflict, or of 
heightened tension or crisis, or of general instability engulfing or surrounding a state ". In addition, 
the panel in the present proceedings seemed to take into account the nature of the restrictive 
measures themselves as a basis for the assessment of whether an "emergency in international 
relations " existed. That reasoning appear ed circular. The E uropean Union recalled that, as a third 
party in this dispute, it agreed with the interpretation given to the notion of "emergency in 
international relations " in DS512 and, on that basis, argued that there were "significant elements to 
indicate that the situation to whic h the United States sought to respond by its measures is one of 
an emergency in international relations within the meaning of Article XXI(b)(iii) of the GATT 1994 ".  
7.14.   The E uropean Union continue d to study the panel report and its implications, and reserve d its 
rights for the purposes of any appeal proceedings. The circumstances of this case demonstrate d, 
once again, the need for a standing Appellate Body to verify and, where needed, correct legal 
interpretations by panels. While every case was different on i ts facts, there was only one Article XXI 
in the GATT and it was the same for all WTO Members. The fact that not every Member c ould rely in 
practice on its right to appellate review undermine d the right to seek a panel 's interpretation 
corrected on appeal, the equality of WTO Members under the WTO Agreement, as well as the security 
and predictability of the multilateral trading system. In the absence of an operational Appellate Body, 
the European Union invite d all Members to avail  themselves  of alternative mechanisms that 
preserve d the rights of the parties under the DSU, such as the MPIA.  
7.15.   The representative of the Russian Federation  said that t he Russian Federation welcomed the 
opportunity to present its views concerning the panel report in this dispute. First, analogous to the 
"steel and aluminium disputes " the United States failed to identify the subparagraph under which it 
raised its defen ce. The Russian Federation  support ed the panel's finding that without identification 
of the relevant s ubparagraph, the panel would not be in a position to review whether the conditions 
for the defen ce were satisfied. However, the panel then stated that only in its second written 
submission  had the United States argued that the information it provided could be understood to be 
relevant to the circumstances provided in Article XXI(b)(iii). Such abstract allegations could not be 
viewed as invocation of a particular subparagraph that was a crucial element for substantiating a 
defence under the security exceptions.   
7.16.   Second, the panel erred in its interpretation of the term "emergency ". The panel consider ed 
that a state of war was opposite to peaceful or friendly interaction between States, representi ng the 
ultimate breakdown of their relations. From this, it conclude d that emergency in international 
relations represent ed "a breakdown or near -breakdown in the relations between States or other 
participants in international relations ". The Russian Federa tion appreciate d the willingness of the 
panel in its attempts to determine objective parameters for an inherently subjective experience. The 
panel compare d a thermometer for measuring temperature and invented a spectrum "from friendly 
interaction to breakd own of relations ", pointing out that similarly to subjective human experiences 
there were parameters to establish when a situation constitute d an emergency. To simplify the 
panel's words , its task was to use a thermometer to determine whether something was hot or cold. 
First, it should be noted that a thermometer cannot establish whether something is cold or hot , 
because it merely demonstrated  a particular number of degrees on its scale. Second, despite its 
pseudoscientific intentions the Panel failed to find an objective scale for its assessment and 
consequently to objectively establish the number of degrees or the temperature on this scale, 
continuing to base its assessment on subjective human experiences, but wrapped differently. The 
panel in this dispute substantively stepped away from the balanced objective approach elaborated 
in DS512 and DS567 , in particular  regarding: the assessment of whether the existing situation 
referred "to armed conflict, or of laten t armed conflict, or of heightened tension or crisis, or of 
general instability engulfing or surrounding a state "; whether the invoking Member ha d articulated 
the essentially security interests said to arise from such emergency sufficiently enough to 
demon strate their veracity ; and  whether the invoking Member ha d demonstrated that the measures 
taken met the minimum requirement of plausibility. Moreover, the panel selectively referred to 
factual circumstances in Russia – Traffic in Transit  to assess the situ ation between the United States 
and Hong Kong, China, although the factual aspects of that dispute were not pertinent for resolution 
of the matter before the panel in this dispute.  It seem ed that the panel just tried to find confirmation WT/DSB/M/47 5 
 
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  in the DS512 Report of its position on a "breakdown trigger " in the concept of "emergency ". To 
achieve this goal, it even misquoted th at report. The panel in  Traffic in Transit  had assessed the 
situation and concluded that an emergency exist ed as it was ongoing, involve d both parties to the 
dispute, affect ed the security of Russia 's border, the situation was publicly known , and certain other 
countries had imposed sanctions against Russia. Despite what the panel in this dispute mistakenly 
stated, the report in Russia – Traffic in Transit made no mention  of any breakdown in relations 
between the two disputing Members.  
7.17.   Furthermore,  the panel while interpreting the phrase "other emergency in international 
relations " failed to read the treaty terms in their context, as it solely concentrated on the provisions 
of Article  XXI and primarily on one particular word : "war". Moreover, it did not take into account 
either the object or purpose of the treaty, which  was to promo te the security and predictability of 
reciprocal and mutually advantageous arrangements and the substantial reduction of tariffs and 
other barriers to trade. The panel just noted that the Panelists d id not see any contradictions between  
the meaning that th ey ha d discerned and the object and purpose of the GATT or the WTO Agreement. 
The panel's interpretation of "emergency in international relations " made Article XXI of the GATT a 
"get-out-of-jail-free card ", destroying all predictability that the system had left.  
7.18.   The Russian Federation also wished to raise its deep concerns regarding certain allegations 
made by the panel while interpreting provisions of the security exceptions. The analysis performed 
by the panel on the phrase "emergency in international relations " was mostly obiter dicta . It should 
be noted that the report ha d plenty of remarks and opinions, which were not necessary for resolution 
of the dispute. In particular, it made various allegations co ncerning the territorial application of 
Article  XXI of the GATT. For example, the panel conclude d that a war taking place between two or 
more countries could also give rise to an emergency in international relations affecting other 
countries. It was unclea r how th at conclusion was relevant for the resolution of the dispute between 
the United States and Hong Kong, China,  and the matter , within the meaning of Article 11 of the 
DSU, that the panel was assessing. Moreover, there was no evidence in the report that suggest ed 
that either party  had raised th at issue before the panel. The motives of the panel for making such 
conclusion s remain ed unclear. This dispute touched upon two particular WTO M embers and their 
bilateral relations. The United States, in  some vague responses, described the situation, which 
entailed adoption of the measure at issue as concerning  Hong Kong, China's alleged  lack of autonomy 
from China.  Thus, it was the task of the panel to assess solely the specific situation which  had arisen 
in bilateral relations between the United States and Hong Kong, China,  and not theoretical situations 
"in relations among a wider group of WTO Members ". In this regard, all allegations concerning an 
emergency which could potentially exist outside of  the invoking Member 's own territory and its 
bilateral relations were not relevant for the resolution of this dispute.  
7.19.   Finally, the panel had explicitly stat ed that in this dispute , in order to determine the absence 
of the "emergency in international relations " it was significant to establish that nobody  had imposed 
sanctions against Hong Kong, China , and that goods "although required to be marked as 'China'  
origin, continue to be subject to the same tariff treatment as prior to the imposition of the origin 
marking requirement ". Moreover, the report mention ed trade restrictive measures taken by the 
United States against Hong Kong, China as evidence used to asse ss the existence or absence of the 
emergency in international relations. Thus, it seem ed that the more a Member restrict ed trade, for 
instance on merely protectionist grounds, the more likely there was an emergency in international 
relations. However, the situation should be exactly the opposite. If an emergency exist ed, a Member 
had to  be free to take trade -restrictive actions , which it consider ed necessary for the protection of 
its essentially security interests , arising from such emergency. To give an example, earlier at this 
meeting Members had already discussed measures adopted by the United States which the United 
States had  initially disguised as national security measures . But it had been  established  that the 
United  States'  tariff treatment in respect of steel and alumin ium products violate d basic WTO rules 
and principles and were not taken in a time of emergency. If the panels in those disputes ha d 
followed the same approach  as th is panel, they might have concluded that the imposition of 
additional tariffs was supporting evidence for the existence of an emergency in international 
relations. To conclude, Russia considered  that the panel's interpretation of security exceptions w ould 
have a strong negative impact on sec urity and predictability of trade.  Certain conclusions made by 
the panel were either not necessary for resolution of the matter before it or c ame from mistaken 
premises. Overall , this report, in Russia 's view, was a close to perfect example as to why Members  
urgently need ed the restoration of a proper functioning Appellate Body. Th at conclusion, however, 
did not mean that it excuse d the abuse of the "appellate trap " by the respondent.   WT/DSB/M/47 5 
 
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  7.20.   The representative of China  said that a s a third party in this dispute, China appreciate d the 
panel's impartial and objective rulings and recommendations. China  reject ed in the strongest terms  
the US false allegations , unilateral judgement , and interference in other Members ' internal aff airs. 
China wished to  remind the United States that the WTO dispute settlement mechanism was a forum 
to resolve trade disputes based on the WTO rules rather than a place to discuss political issues. To 
that end, China  commend ed the panel's findings , which were  in line with China's  position.  China also 
emphasize d that Hong Kong, China was both an inalienable part of China and also an original 
member of the WTO as a separate customs territory. The Law of the People 's Republic of China on 
Safeguarding Na tional Security in the Hong Kong Special Administrative Region and relevant 
measures that had been adopted strictly in line with The Basic Law and the "One Country, Two 
Systems " policy, and d id not in any way affect the status of Hong Kong, China as a WTO Member. 
Those measures ha d nothing to do with the so -called national security of other WTO Members 
including the United States. The US statement at the present meeting  further highlight ed the 
importance of this panel decision , which had  once again confirm ed that the security exception was 
not a "safe harbo ur" for unilateralism and protectionism. Any Member, regardless of its power and 
size, shall refrain from taking unilateral and protectionist measures in the name of "national 
security ", or using it as a vehicle to disregard the core principles of the WTO , including 
non-discrimination and openness. China was  deeply troubled that the United States had once again 
taken advantage of the Appellate Body crisis created by itself to evade its multilateral obligations. 
China  urged the United States to stop contaminating the WTO as a forum for negotiating trade  rules 
and resolving trade disputes. China  also urge d the United States to stop using national security as 
an excuse to evade its multilateral obligations. China  urged the United States to faithfully hono ur its 
obligations under the covered agreements and lift immediately its illegal blockage of the Appellate 
Body.  
7.21.   The representative of Hong Kong, China  thank ed other Members for their statements. Hong 
Kong, China considered that the U S statement, including its  discussion  of various events that had 
happened in Hong Kong , was  presented in a  biased and selective fashion. As many Members ha d 
indicated previously , the WTO was a forum for trade and  not the correct forum for discussions of the 
internal matters of Hong Kong, China . To borrow the words of the United States: bringing such 
issues  into the WTO "is not only incompatible with the purpose of the WTO, a trade organization , 
but will not advance WTO Members ' shared interests in the WTO as a forum for discussion and 
negotiation ". Hong Kong, China also pointed out that the United States ha d presented similar 
argument s before  the panel, and the panel, after careful consideration  and with reference to the 
relevan t provisions of the WTO covered agreements, ha d concluded that such arguments  did not 
provide  a justification of the measure s adopted by the United States. Since the United States ha d 
made false allegations  about the National Security Law , the record shoul d be set straight. Members 
might remember the social unrest and violent disruptions in Hong Kong in 2019. In view of the 
increasingly pronounced national security risks, the enactment of a national security law was both 
necessary and urgent in order to plu g a loophole in national security in Hong Kong. The enactment 
of the National Security Law was an important step to improve the "One Country, Two Systems " 
regime as well as to restore stability in Hong Kong society as soon as possible.  
7.22.   The representative of the United States  said that the United States welcomed China's and 
Hong Kong, China's recognition that the WTO was not a forum for adjudicating nationa l security. 
That is what  the United States had been saying all along. The representative of the United States 
said that the United States would like to know: Did China intend to maintain that position with 
respect to its new challenge?  
7.23.   The representative of Hong Kong, China  said that h is delegation had previously stated  that 
bringing political issues into the WTO was not only incompatible with the purpose of the WTO, but  it 
would not advance WTO Members ' interests in the WTO as a forum for discussion and n egotiation. 
It was not Hong Kong, China who was bringing  national security issues into the WTO or the dispute 
settlement process  – it was the United States who  tried to justify its discriminatory measure by 
claiming essential security exceptions, but the p anel had already concluded that the United States 
had not demonstrated that such measure could be justified on the ground of security exceptions.  
7.24.   The representative of the Russian Federation  said that the Russian Federation  highly 
appreciate d Members' statements to the effect that the WTO was not a forum for political 
discussions.  
7.25.   The DSB took note  of the statements.  WT/DSB/M/47 5 
 
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  8  APPELLATE BODY APPOINTMENTS: PROPOSAL BY AFGHANISTAN; ANGOLA; ANTIGUA 
AND BARBUDA; ARGENTINA; AUSTRALIA; BANG LADESH; BENIN; PLURINATIONAL STATE 
OF BOLIVIA; BOTSWANA; BRAZIL; BURKINA FASO; BURUNDI; CABO VERDE; CAMBODIA; 
CAMEROON; CANADA; CENTRAL AFRICAN REPUBLIC; CHAD; CHILE; CHINA; COLOMBIA; 
CONGO; COSTA RICA; CÔTE D'IVOIRE; CUBA; DEMOCRATIC REPUBLIC OF CONGO; 
DJIBOUTI; DOMINICA; DOMINICAN REPUBLIC; ECUADOR; EGYPT; EL SALVADOR; 
ESWATINI; THE EUROPEAN UNION; GABON; THE GAMBIA; GHANA; GUATEMALA; GUINEA; 
GUINEA BISSAU; HONDURAS; HONG KONG, CHINA; ICELAND; INDIA; INDONESIA; 
ISRAEL; KAZAKHSTAN; KENYA; REPUBLIC OF KOREA ; LESOTHO; LIECHTENSTEIN; 
MADAGASCAR; MALAWI; MALAYSIA; MALDIVES; MALI; MAURITANIA; MAURITIUS; 
MEXICO; REPUBLIC OF MOLDOVA; MOROCCO; MOZAMBIQUE; NAMIBIA; NEPAL; NEW 
ZEALAND; NICARAGUA; NIGER; NIGERIA; NORTH MACEDONIA; NORWAY; PAKISTAN; 
PANAMA; PARAGUAY; PE RU; THE PHILIPPINES; QATAR; RUSSIAN FEDERATION; 
RWANDA; SAINT KITTS AND NEVIS; SAINT LUCIA; SENEGAL; SEYCHELLES; SIERRA 
LEONE; SINGAPORE; SOUTH AFRICA; SWITZERLAND; THE SEPARATE CUSTOMS 
TERRITORY OF TAIWAN, PENGHU, KINMEN AND MATSU; TANZANIA; THAILAND; 
TOGO; TUNISIA; TÜRKIYE; UGANDA; UKRAINE; UNITED KINGDOM; URUGUAY; 
THE BOLIVARIAN  REPUBLIC OF VENEZUELA; VIET NAM; ZAMBIA AND ZIMBABWE 
(WT/DSB/W/609/REV.23)  
8.1.  The Chairperson  said that this item was on the Agenda of the present meeting at the request 
of Guatemala, on behalf of a number of delegations. She then drew attention to the proposal 
contained in document WT/DSB/W/609/Rev.23 and invited the representative of Guatemala t o 
speak.  
8.2.  The representative of Guatemala , speaking on behalf of the co -sponsors of the joint proposal 
contained in document WT/DSB/W/609/Rev.23, said that the delegations in question had agreed to 
submit the joint proposal, dated 12 September 2022 to launc h the selection processes for the 
vacancies of the Appellate Body members. On behalf of those 127 Members, Guatemala wished to 
state the following. The extensive number of Members submitting the joint proposal reflected a 
common concern with the current si tuation in the Appellate Body that was seriously affecting the 
overall dispute settlement system, against the best interest of all WTO  Members. WTO Members had 
a responsibility to safeguard and preserve the Appellate Body, the dispute settlement system, an d 
the multilateral trading system. Thus, it was their duty to proceed, without further delay, with the 
launching of the selection processes for the Appellate Body members, as submitted to the DSB at 
the present meeting. The proposal sought to: (i) start se ven selection processes  to replace: 
Mr Ricardo Ramírez -Hernández, whose second term had expired on 30 June 2017; Mr  Hyun Chong 
Kim, who had resigned with effect from 1  August  2017; Mr  Peter Van den Bossche, whose second 
term had expired on 11 December 2017 ; Mr Shree Baboo Chekitan Servansing, whose four -year 
term had expired on 30 September  2018; Mr  Ujal Singh Bhatia, whose second term had expired on 
10 December 2019; Mr  Thomas R. Graham whose second term had expired on 10 December 2019; 
and Ms  Hong Zhao, w hose first four -year term had expired on 30  November  2020) ; (ii) to establish 
a Selection Committee; (iii) to set a deadline of 30 days for the submission of candidacies; and 
(iv) to request that the Selection Committee issue its recommendation within 60  days after the 
deadline for nominations of candidates. The proponents invited and urged  all Members to support 
this proposal in the interest of the dispute settlement and multilateral trading systems. The 
proponents were flexible in the determination of the  deadlines for the selection processes, but the 
urgency of the situation  should be taken into account  by Members.  
8.3.  The representative of the United States  said that Members were aware of the longstanding US 
concerns with WTO dispute settlement. Those concer ns remained unaddressed, and the United 
States did not support the proposed decision. The United States believed that fundamental reform 
was needed to ensure a well -functioning WTO dispute settlement system. A well -functioning dispute 
settlement system sup ported WTO Members in the resolution of their disputes in an efficient and 
transparent manner, and in doing so limited the needless complexity and interpretive overreach that 
had characterized dispute settlement in recent years. The first step towards refo rm was to better 
understand the interests of all Members in WTO dispute settlement. The United States had been 
engaging with Members to advance that goal and looked forward to continued engagement. The 
United States appreciated the deeply substantive and i nformative discussions over the past several 
months. Those informal discussions, which were guided by an interest -based approach, reflected a 
significant departure from the stale conversations of past years. The United States was pleased that 
delegations t rusted in the merits of interest -based problem solving and took those opportunities to WT/DSB/M/47 5 
 
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  speak with one another, rather than at another. Those dialogues enabled delegations to gain a better 
understanding of each other's perspectives on the value of dispute settlement and how that value 
might be maximized across the WTO Membership. The United States acknowledged that considerable 
work remained and that achieving dispute settlement reform – that is, fundamental reform to meet 
the needs of all WTO Membe rs to the greatest extent possible – would not be easy. But the United 
States continued to believe that working collectively towards that goal provided the greatest chance 
of achieving durable, lasting reform. The United States was committed to working tow ards an 
improved system. The United States looked forward to engaging further with those Members that 
also saw value in an improved and reformed dispute settlement system that was accessible to all .  
8.4.  The representative of Switzerland  said that Switzerland  wishe d to refer to its statements made 
on this matter at the  previous DSB meetings. A fully operational dispute settlement system was in 
everyone's interest. Switzerland w ould continue to engage constructively in the ongoing discussions  
and urge d all Membe rs to commit to ensuring a fully functioning dispute settlement system by 2024, 
as set out in the MC12 Outcome Document. Switzerland  hoped that concrete solutions c ould be 
discussed in the coming weeks and months.  
8.5.  The representative of Brazil  said that Brazil thank ed Guatemala for presenting the proposal on 
behalf of  the co-sponsors and wished to refer to its previous statements made under this Agenda 
item. Brazil  also t ook this opportunity to thank Mexico for its unwavering commitment to keeping 
this prop osal on the DSB Agenda  thus far.  Filling the Appellate Body vacancies was Members'  
collective and unequivocal obligation under the DSU, and th is proposal was as important today as it 
was the  first time it was tabled. The fact, which Brazil  deeply regret ted, that five panel reports (which  
had been put up for adoption at this meeting) had been  appealed "into the void " – that is  to a non -
functioning Appellate Body – was a stark reminder of the i mportance of th at task. Restoring a fully 
and well -functioning dispute settlement system was an urgent priority for Brazil. Brazil  hoped that 
the ongoing informal discussions taking place in Geneva c ould meaningfully contribute to that 
outcome, within the deadline mandated by Ministers at MC12. Finally, Brazil recall ed that, while the 
impasse with the appointment of Appellate Body members was not resolved, the WTO Members 
could ensure the resolution of their disputes by joining the MPIA. Once again, Brazil encourage d 
Members to do so. Brazil was  ready to discuss the MPIA with any delegation that wishe d to learn 
more about the MPIA and its functioning.  
8.6.  The representative of Iceland  said that Iceland,  as one of the many co -sponsors of this 
proposal, was conce rned over the long -standing lack of progress in filling the vacancies of the 
Appellate Body. Iceland view ed a two -step, independent,  and impartial WTO dispute settlement 
system as a key feature providing predictability and securing a fair playing field for all participants 
of the multilateral trading system. Iceland  encourage d all Members to engage constructively and 
with urgency so that they could  solve this impasse within the time -frame set by Ministers at MC12.  
8.7.  The representative of Norway  said that Norway thank ed Guatemala for presenting this joint 
proposal, which  Norway fully support ed. At the present meeting, Members had  unfortuna tely again 
seen five panel reports being appealed into the void, highlighting the urgency of restoring a fully 
functional  two-tier dispute settlement system. Norway  very much welcome d the ongoing informal 
discussions among Members and was participat ing constructively in th ose discussions  to address the 
present  impasse. It was time to focus discussions on the crucial issues, and to establish clear 
milestones in the coming months towards 2024. In closing , Norway  referred to its previous 
statements made under this Agenda item.  
8.8.  The representative of the United Kingdom  thanked Guatemala for presenting the proposal  and 
said that t he United Kingdom continue d to support the launch of the process for appointments to 
the Appellate Body, and refer red to its previous statements on this issue. Members had to  deliver 
on the MC12 mandate to achieve a fully and well -functioning system by 2024. The United Kingdom  
encou raged all Members to progress ongoing discussions on reform with pragmatism and urgency. 
The process had to  be about reaching consensus on the reforms necessary to achieve a fully and 
well-functioning system; one that c ould command the support of all Membe rs. The United Kingdom 
would continue to prioritize th at work and look ed forward to participating with Members in future 
discussions . As Members  discuss ed these issues concerning how they ensure d that rules were 
respected, they could not sit by and ignore the egregious violations of international law and the UN 
Charter committed by one WTO Member against another.  The United Kingdom unreservedly 
condemn ed Putin's outrageous and illegal war of aggression. What happen ed in Ukraine matter ed to 
the work of this Organization and matter ed to all Members . Russia's actions w ould have a prolonged WT/DSB/M/47 5 
 
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  negative impact on the global economy, ha d global consequences, including on world trade, and 
jeopardize d prospects for peace. The U nited Kingdom  and the international commun ity ha d made it 
clear to President Putin that his attack on the Ukrainian people had to  stop, and that he had to  
withdraw from Ukraine and restore regional and global stability.  
8.9.  The representative of Ukraine  said that, f irst of all, Ukraine was thankful fo r the work done in 
2022 relating to the proposal on Appellate Body appointments. Ukraine hope d that Members w ould 
continue to share a common aim and w ould make further efforts to maintain an independent, 
impartial appeal stage in the WTO dispute settlement system. Ukraine w ould continue to engage 
and take an active part in support ing the process of Appellate Body appointments. Ukraine believe d 
that Members ' efforts w ould eventually lead to a proper functioning of WTO dispute resolution and 
united decisions among  Members. Ukraine  reiterate d its strong support for the rules -based 
multilateral trading system and hope d that the ongoing reform would  be implemente d in accordance 
with the MC12 Outcome Document. At the same  time, Ukraine wished to  make a statement with 
regard to the current  circumstances in Ukraine. In one month it w ould be one year of the Russian 
full-scale war against Ukraine. Th at war had affected  Ukraine's entire territory, caused numerous 
human casualties and heavy damage to Ukraine's economy and infrastructure.  It continue d to cause 
death, suffering, damage and violate basic norms and principles of international law, as well as the 
purpose and p rinciples of this Organization. Ukraine was  very grateful to all Members that stood with 
Ukraine in these terrifying times, for their comprehensive support. Ukraine  believe d that together 
Members  could hold those responsible  accountable and believe d that every such aggressor should 
be excluded from the multilateral trading system.  
8.10.   The representative of Peru said that Peru  thank ed Guatemala for the presentation made on 
behalf of the co -sponsors and express ed its support  for the proposal . As Members had noticed,  the 
list of cases awaiting resolution continue d to grow and th at scenario w ould unfortunately be repeated 
so long as the Appellate Body remain ed paralyzed, with a consequent erosion of Members' rights, 
impact on their economies and damage to the  WTO's reputation. Peru did not dismiss the efforts 
being made to reflect on the concerns of some Members about the dispute settlement system, 
including measures to address them; it was actually an exercise that Peru value d and appreciate d. 
However, Peru d id not believe that this justifie d Member' ongoing failure to restore the dispute 
settlement system. The two issues should be dealt with separately. It was essential for WTO 
Members to abide by the rules and commitments they had  set themselves , including with regard  to 
the dispute settlement system, on which the stability, security , and predictability of the entire 
multilateral trading system depend ed. Finally , Peru reaffirm ed its willingness to participate in any 
initiative that aim ed to have a fully functioning dispute settlement system as soon as possible, and 
no later than 2024, as Members had  agreed at the MC12.   
8.11.   The representative of Canada  said that f or over three years the Appellate Body ha d no longer 
had a quorum and ha d been u nable to hear new appeals. Canada support ed the statement made by 
Guatemala at the present meeting on behalf of the sponsors and thank ed Guatemala  for taking the 
floor. Canada  invite d WTO Members that ha d not yet sponsored the proposal to consider joining the 
127 Members requesting the launch of the selection process. The critical mass of WTO Members that 
support ed the proposal was a clear testimony to the importance they all accord ed to a fully 
functioning Appellate Body as an integral part of the dispute settlement system. Canada  recall ed the 
Membership's objective, which was to have a fully and well -functioning dispute settlement system 
accessible to all by 2024. Canada w ould continue to actively participate in solution -oriented 
discussions on the current  situation. In short, Canada's  priority remain ed finding a multilateral and 
lasting solution for all Members, including the United  States. In the meantime, Canada and 50 other 
WTO Members ha d endorsed the MPIA as an emergency measure. The purpose of th at measure was 
to safeguard Members' right to binding dispute settlement that include d the possibility of appeal in 
disputes between them. As mentioned previously , Canada  invite d all WTO Members to consider 
joining the MPIA.  
8.12.   The representative of Korea  said that, f irst, Korea strongly condemn ed Russia's armed 
invasion of Ukraine as a violation of principles of the UN Charter and international law. The use of 
force that cause d innocent casualties c ould not be justified under any circumstances. Ukraine's 
sovere ignty, territorial integrity , and political independence should be respected. As for the item at 
hand, Korea thank ed Guatemala for its statement and reiterate d its support for the joint proposal. 
Korea  also refer red to its previous statements on this issue . The WTO dispute settlement system 
had been a central element in providing security and predictability to the multilateral trading system. 
In that regard, Korea very much welcome d the informal discussions on dispute settlement reform WT/DSB/M/47 5 
 
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  and highly value d the MC12 Ministerial Declaration Outcome Document as paving the way for 
ensuring a fully and well -functioning dispute settlement system by 2024. Korea st ood ready to 
constructively engage in the next phase of the relevant discussions on a durable solution to enhance 
the functioning of the WTO dispute settlement system with a view to accommodating the needs of 
WTO Members.  
8.13.   The representative of Hong Kong, China  said that Hong Kong, China first wished to thank 
Guatemala for coordinating this proposal for the pre sent meeting. Hong Kong, China had  already 
spoken at length under previous items at the present  meeting  regarding  the highly unsatisfactory 
situation of the Appellate Body impasse, which greatly undermine d the security and predictability of 
the multilateral trading system that ha d the WTO at its core. It remain ed Hong Kong, China's  firm 
belief that restoration of a f ully-functioning, binding and two -tiered dispute settlement  system had 
to remain the top priority of the WTO in the coming months, with a view to meeting the time -frame 
of 2024 to complete the reform as set out in the MC12 Outcome Document.   
8.14.   The representa tive of Japan  said that Japan refer red to its statements made at previous DSB 
meetings and support ed the proposal by Guatemala on behalf of the 127 co -sponsors. Japan 
welcome d two new panel establishments at this meeting  and the continued use of the WTO di spute 
settlement system by Members. However, every WTO Member, as the owner of the system, had to 
take seriously the current  situation of the Appellate Body. Japan absolutely share d a sense of 
urgency for reform of the dispute settlement system and ha d set as the utmost priority to achieve 
a reform that w ould contribute to a long -lasting solution to the structural and functional problems 
of the dispute settlement system. Members should discuss reform, including on how to address the 
concerns surrounding the  Appellate Body. Japan spare d no efforts to collaborate with all WTO 
Members in the discussions to that end. Japan welcome d the informal dispute settlement  reform 
discussions currently led by Members. Also, with a view to having a fully and well -functionin g DS 
system by 2024, as agreed at MC12, it was important that the ongoing  informal discussions  would 
be developed into a formal process at an appropriate juncture  in the course of the year .  
8.15.   The representative of Australia  said that 2023 w ould be a crucial year for the dispute 
settlement system. For Australia, there was no more important reform priority. It was vital that 
Members  built on the foundations set in 2022 to launch into 2023 with the renewed commitment 
and resolve necessary to find a  lasting solution to the impasse. Members had to  be flexible and 
pragmatic in their approach this year to ensure they remain ed on track to deliver on their MC12 
mandate to achieve a fully and well -functioning dispute settlement system accessible to all Mem bers 
by 2024. Australia  looked forward to working actively and constructively with all Members to fulfil 
that shared objective.  
8.16.   The representative of the European Union  said that t he European Union wished to refer to its 
previous statements on this matter  and thank ed all Members that ha d co-sponsored the proposal to 
launch the appointment processes. Since 11 December 2019, the WTO no longer guarantee d access 
to a binding, two -tier, independent , and impartial resolution of trade disputes. As reflected in the  
large number of Members co -sponsoring the present proposal, a fully functioning WTO dispute 
settlement system was critical for a rules -based multilateral trading system and for the credibility of 
the WTO as a rules -based institution. Th at was why the most  urgent area of WTO reform involve d 
finding an agreed basis to restore such a system and proceeding to the appointment of the members 
of the Appellate Body. Th at task should be addressed as a priority. As  the European Union  had 
consistently noted, WTO Memb ers ha d a shared responsibility to resolve this issue as soon as 
possible and to fill the outstanding vacancies as required by Article 17.2 of the DSU. The E uropean 
Union  agree d that a meaningful reform was needed in order to achieve th at objective. The E uropean 
Union  would continue to engage constructively towards  finding, through reform, a lasting solution 
to the present situation regarding appointments to the Appellate Body. The E uropean Union  was 
participating in the ongoing discussion  process in Geneva. The European Union  took very seriously 
the commitment, made at MC12, towards  having a fully and well -functioning system by 2024. The 
European Union  was keen to see reform discussions moving very shortly to a new phase focused on 
a limit ed set of specific issues, paving the way for getting quickly into text -based discussions that 
reach ed agreement by MC13. Members  should not miss a Ministerial Conference if they wanted  a 
fully and well -functioning system in place in 2024. The E uropean Uni on would engage with any 
reform effort that respect ed the core features of the dispute settlement system. Th ose include d the 
right to appeal review before a standing adjudicative body.  WT/DSB/M/47 5 
 
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  8.17.   The representative of New Zealand  said that New Zealand reiterate d its support for the 
proposal co -sponsored alongside 126 other WTO Members and wished to refer to its previous 
statements  on this matter.  Restoring and strengthening the dispute settlement system remain ed a 
priority for New Zealand. New Zealand  welcome d the Mi nisterial Declaration achieved at MC12 , 
committing Members to discussions to have in place a fully and well -functioning system accessible 
to all Members by 2024. New Zealand  urged all Members to engage in discussions constructively 
and pragmatically in ord er to address this situation as a priority in line with the direction of their 
Ministers.  
8.18.   The representative of Indonesia  said that  Indonesia thank ed Guatemala for presenting the 
proposal on behalf of the 127 co -sponsors. On this occasion, Indonesia wished  to again underline 
the importance of resolving the present  Appellate Body impasse to restore predictability and security 
to the multilateral trading system. Indonesia considered that resolving the impasse was part and 
parcel  of the dispute settlement system reform. Therefore, it should be placed as a priority by 
Members to achieve a fully operational and well -functioning WTO dispute settlement system by 
2024, as mandated at MC12. Moreover, during the past few months, Indonesi a, along with other 
interested Members , had been participating  and engaging in good faith  in the informal discussions 
on dispute settlement reform initiated by the U nited States. While appreciating the efforts of the US  
delegation , now that the second phas e was about to be concluded by the end of this month, 
Indonesia  believe d that it was high time for the discussion to be taken to a more formal setting in a 
timely manner in order to ensure that the discussion w ould be open and inclusive for all Members. 
To that end, the discussion should also be focused, pragmatic, and solution -oriented , towards 
supporting and improving the function of the dispute settlement system , as set out in the DSU. 
Indonesia st ood ready to participate and contribute positively in any future discussions.  
8.19.   The representative of Singapore  said that Singapore thank ed Guatemala for stepping up to 
keep this Agenda item on the table, which Singapore  strongly support ed. The lengthy discussions  
on this matter at the present meeting  highlight ed the urgency of resolving this crisis and Singapore  
reiterate d its previous statements regarding the importance of this matter. Singapore was 
committed to participating constructively and with an open mind i n ongoing discussions on dispute 
settlement reform in order to deliver on the MC12 mandate to have a well and fully functioning 
dispute settlement system accessible to all Members by 2024.  
8.20.   The representative of the Russian Federation  first wished to  reiter ate the Russian Federation's  
statement made previously at the present meeting  that the WTO was not a proper forum for political 
discussions . The Russian Federation asked all Members to refrain from addressing issues that were 
not in the competence of the O rganization. Turning to the Appellate Body appointments, the Russian 
Federation refer red to its previous statements and thank ed Guatemala and the co-sponsors for their 
continuous and faithful commitment to the appointment processes of the Appellate Body me mbers. 
The five new  appeals into the void made by the U nited States  again demonstrate d the state of 
urgency of that issue. Russia reiterate d its strong support for launching the appointment processes 
immediately. In th at vein, considering the commitment ex pressed  by WTO Members  in paragraph 4 
of the MC12 Outcome Document of 17  June 2022, Russia call ed upon all Members to engage in 
urgent constructive discussions towards a fully functioning dispute settlement system as soon as 
possible. Such discussions had to be transparent , inclusive, and address the interests of all Members.  
8.21.   The representative of China  said that China support ed the statement made by Guatemala on 
behalf of  the 127 co -sponsors, and also thank ed Mexico for keeping this item persistently on the 
Agenda  in the past.  China  called upon more Members to join th at proposal. China  wished to refer to  
its previous statements made on this urgent matter. China  reiterate d that the most urgent task at 
the moment  was to immediately launch the selection process and fill the vacancies for the Appellate 
Body. Th at wa s a treaty obligation of all WTO Members, and no prerequisite should be attached to 
it. China  also wished to stres s its firm commitment to an independent, impartial , two-tier dispute 
settlement system. Such a system ha d proven to not only facilitate prompt and fair resolution of 
disputes between Members regardless  of their size and power, but  had also provid ed security and 
predictability to the multilateral trading system. China  would continue working constructively with 
all Members to restore a fully and well -functioning dispute settlement system at the earliest possible 
date, as mandated by the Ministers at MC 12. China also encourage d more Members to join the MPIA 
as a contingent measure to safeguard their right to appeal until the Appellate Body was restored.  
8.22.   The representative of Malaysia  said that  Malaysia continue d to support the proposal to launch 
the sele ction processes for  appointment of the Appellate Body members. Malaysia  thank ed WT/DSB/M/47 5 
 
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  Guatemala for presenting th e proposal on behalf of the 127 co -sponsors and support ed the 
statement  made by Guatemala. Malaysia  wished to refer to its statements made  at previou s DSB 
meetings under this Agenda item . Malaysia reiterate d its strong view that the dispute settlement 
system, including the Appellate Body, was the most critical matter that require d the urgent attention 
of all Members. Malaysia st ood ready to support the  work to restore a functioning dispute settlement 
system and to proceed with the appointment of the Appellate Body members.  
8.23.   The representative of South Africa  said that South Africa wished to be associate d with the 
statement made  by Guatemala on the proposal for Appellate Body appointments and thank ed 
Guatemala for the statement made on behalf of the co -sponsors. South Africa  wished to reiterat e 
its previous statements regarding the urgency of this matter and were quite concerned about the 
long-standing vacancies. The lengthy discussions at this meeting  and the five disputes that ha d been 
appealed into the void highlight ed the urgency and need to fill those vacancies. The fact that the 
Appellate Body c ould not hear new appeals rema ined a concern. Members ha d a shared responsibility 
to safeguard and preserve the Appellate Body, the dispute settlement system , and the multilateral 
trading system. It was their duty as Members to proceed without further delay with the launching of 
the se lection processes for the Appellate Body members. South Africa,  therefore , urged the DSB to 
urgently fulfil its obligation under the DSU, which was to fill vacancies as they ar ose and to maintain 
the two -tier dispute settlement system. Th at would  ensure pr edictability within the multilateral 
trading system. A fully functioning Appellate Body was the top priority for reform of the WTO and 
South Africa  welcome d the commitment by Members undertaken during MC12 for a fully and 
well-functioning dispute settlemen t system accessible to all Members by 2024. South Africa recalled 
that commitment was reiterated during the informal discussions on WTO reform. South Africa w ould 
work actively and constructively with all Members to find a lasting solution that w ould ensur e an 
effective dispute settlement system.  
8.24.   The representative of Guatemala , speaking on behalf of the 127 co -sponsors, regret ted that 
for the sixty -second occasion, Members had  not been able to launch the selection processes for the 
vacancies of the Appella te Body. Thus, Members continue d to fail to fulfil their duties as Members of 
the WTO . As Article 17.2 of the DSU clearly state d, "vacancies shall be filled as they arise ". The fact 
that a Member may have  had concerns about certai n aspects of the functioning of the Appellate 
Body c ould not serve as a pretext to impair and disrupt the work of the DSB  and, more generally, 
of the dispute settlement system. There was no legal justification for the current blocking of the 
selection processes, which was causing concrete nullification and impairment for many Members. No 
discussion should prevent the Appellate Body from continuing to operate fully, and Members had to 
comply with their obligation under the DSU to fill the vacancies as they ar ose. Guatemala  noted with 
deep concern that by failing to launch the selection processes today, the Appellate Body w ould 
continue to be unable to perform its functions, against the best interest of all WTO Members.  
8.25.   The Chairperson  thank ed all delegations for their stateme nts. As in the past, the DSB w ould 
take note of the statements expressing the respective positions, which w ould be reflected in the 
minutes of the meeting. Once again, she recall ed Members' commitment at MC12 to conduct 
discussions with the view to having a fully and well -functioning dispute settlement system accessible 
to all Members by 2024. It was the Chair's  understanding that informal discussions on this matter, 
at the expert level, were currently ongoing. She also  recall ed that on 10  November 2022, an informal 
meeting on WTO reform had taken place, which had covered  DS reform as well. She hoped that, 
going forward, Members w ould be able to find a solution to this matter. With th ose words, she 
propose d that the DSB take note of the statements made under this Agenda item.  
8.26.   The DSB took note  of the statements . 
9  STATEMENTS BY NORWAY AND SWITZERLAND REGARDING THE PANEL REPORTS IN 
THE DISPUTE: "UNITED STATES – CERTAIN MEASURES ON STEEL AND ALUMINIUM 
PRODUCTS " (DS552 AND DS556)  
9.1.  The Chairperson , speaking under "Other Business ", said that as announced at the outset of the 
present meeting, she would now wish to invite Norway and Switzerland to make statements under 
"Other Business " regarding the panel reports in DS552 and DS556 respectively.  
9.2.  The representative of Norway , "speaki ng under Other Business" , said that Norway wished to  
thank the panel for its report in the dispute DS552, " United States – Certain Measures on Steel and WT/DSB/M/47 5 
 
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  Aluminium Products ". Norway also thanked the Secretariat for its assistance, and the third parties 
for their contribution in these proceedings. Norway noted that the United States had opted to file a 
notice of appeal in the dispute. Norway disagreed with the United States' a llegations of errors of law 
and legal interpretation in the panel report . It was the United States' right under the DSU to appeal. 
However, Norway regretted that decision, as this would be yet another dispute in a long line of cases 
appealed "into the void " and awaiting final determination. Norway welcomed dialogue with the United 
States on the way forward in this dispute. With regard to  the panel report, Norway was pleased with 
the Panel's findings that the additional tariffs were violating the WTO Agreeme nt, including its 
conclusion that those measures were not justified under the security exception in Article XXI(b)(iii) 
of the GATT 1994. Norway noted that the Panel in this dispute, like all other WTO dispute settlement 
panels who had addressed the securi ty exceptions, confirmed that Article XXI of the GATT 1994 was 
an affirmative defence to a claim of WTO -inconsistency. A Member's invocation of a WTO security 
exception did not preclude a panel from making findings on a complainant's claims. No provision – 
including Article  XXI – was "carved -out" from the compulsory jurisdiction to which the Members had 
agreed in the DSU. If a Member's mere invocation of a "national security " defence could unilaterally 
exclude disputes from a WTO panel's jurisdiction to sub stantively review the matter before it, that 
would allow easy circumvention of WTO obligations. A respondent could, in theory, invoke a variety 
of protectionist interests under the guise of national security, and thereby avoid scrutiny of its WTO 
obligatio ns altogether. An interpretation of the GATT 1994 which had that effect would render all the 
obligations therein effectively unenforceable. Every Member had the right to determine their own 
national security, and it was clear that Article XXI(b) conferred discretion on Members to protect 
their essential security interests. However, that discretion was not unlimited. As confirmed by the 
Panel, the three sub -paragraphs of Article XXI(b) set out objectively verifiable circumstances which 
a respondent had to de monstrate. In this dispute, the panel did not find that the disputed measures 
were "taken in time of war or other emergency in international relations " within the meaning of 
subparagraph (iii) of Article XXI(b). Norway stressed that its primary interest  in this dispute was 
maintenance of the rules -based multilateral trading system. The Panel's findings were a welcome 
contribution in that regard. Concerns which any Member of the WTO had with respect to damage to 
the international trading system caused by eco nomic conditions in the steel and aluminium sector, 
like in any other sector, had be addressed through measures compatible with the WTO Agreement.  
9.3.  The representative of the United States  said that the United States referred to its previous  
statement concer ning United States – Certain Measures on Steel and Aluminum Products  (DS544). 
The United States also referred Norway to the US notification to the DSB of its intention to appeal, 
stating the United States' willingness to confer with Norway on the way forwa rd in this dispute .  
9.4.  The representative of the European Union  said that t he European Union  wished to refer to the 
statement  made previously  in the present  meeting concerning dispute DS544.  
9.5.  The representative of China  said that China  wished to refer to its statements made under the 
Agenda item concerning the panel report in DS564.  
9.6.  The representative of Switzerland  said that Switzerland wished to make a statement concerning 
dispute DS556: "United States – Certain Measures on Steel and Aluminium P roducts ". The panel 
report  in this dispute had been circulated on 9  December  2022, together with the panel reports in 
DS544, DS552, and DS564, which concerned the same measures. The panel report in dispute DS556 
had been withdrawn from the Agenda following  the appeal by the United States. While welcoming 
the United States' intention to maintain a dialogue on possible solutions to this dispute, Switzerland 
regretted the United States' decision to appeal in this case. The blocking of the appointment of 
Appell ate Body members meant that an indeterminate amount of time would pass before this appeal 
could be addressed. That situation illustrated the importance of re -establishing a fully functioning 
dispute settlement system. Switzerland would continue to work tow ards that objective in the WTO 
and, to that end, would engage constructively with all Members, including the United States. 
Regarding the conduct of the DS556 proceedings, Switzerland wished to thank the members of the 
panel and the WTO Secretariat for the ir work and efforts in this complex case, which had been 
hindered by the COVID -19 pandemic. Switzerland also wished to express its appreciation for the 
contribution of the third parties in this case. In its Report, the panel had concluded that the security  
exception in Article XXI(b) of the GATT  1994 was neither "self-judging " nor "non-justiciable ". In this 
respect, it had agreed with all other panels established under the DSU that had addressed this issue. 
Switzerland welcomed that conclusion from a system ic viewpoint. If such a panel examination were 
not possible, any WTO Member could simply invoke Article  XXI(b) of the GATT  1994 to exclude from 
WTO dispute settlement measures that were nevertheless trade -related. That would clearly be at WT/DSB/M/47 5 
 
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  odds with the obj ective of providing security and predictability to the multilateral trading system, as 
established by the GATT and the other WTO Agreements. Switzerland also noted that the Report of 
the panel did not question the right of WTO  Members to take action to pro tect their security interests. 
If anything, it confirmed that WTO Members enjoyed a considerable margin of discretion in that 
regard. They had to, however, meet the minimum requirements of Article XXI(b) of the GATT  1994, 
compliance with which might be exa mined by a panel. As Switzerland had previously stated  it 
believed that solutions to the global problem of overcapacity in the steel and aluminium sectors had 
to be found through dialogue and cooperation, and be consistent with the spirit and letter of the  
WTO agreements. Switzerland noted that the United States was prepared to discuss how to move 
forward in this dispute. Switzerland stood ready to engage in dialogue with the United States in the 
hope that a solution to this dispute could be found and that the measures would be withdrawn.  
9.7.  The representative of the United States  said that the United States referred to its previous 
statement made at the present meeting  concerning  United States – Certain Measures on Steel and 
Aluminum Products (DS544). The United States also wished to refer Switzerland to the US 
notification to the DSB of its intention to appeal, stating the United States' willingness to confer with 
Switzerland on t he way forward in this dispute . 
9.8.  The representative of Türkiye  said that Türkiye consider ed that the avoidance of  
implementation of unilateral protective trade measures by WTO Members was essential for the 
smooth operation of the multilateral trading system . That being said, the additional duties imposed 
by the United States with respect to importation of aluminium and steel products constitute d a clear 
violation of the WTO obligations of that country, as manifested by the reports of the panels in 
disputes D S552 (Norway) and DS556 (Switzerland). In light of the WTO -inconsistent measures of 
the United States, Türkiye kindly urge d the U nited States to ensur e full compliance with the DS552 
and DS556 panel reports .  
9.9.  The representative of the European Union  said that the European Union  wished to refer to the 
statement made previously  at the present  meeting concerning dispute DS544.  
9.10.   The representative of China  said that China wished to refer to its statements made under the 
Agenda item concerning  the panel dec ision in DS564 . China echoed Türkiye's view and urge d the 
United States to  withdraw its WTO -inconsistent  measures  as soon as possible, if not immediately . 
9.11.   The DSB took note  of the statement s. 
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