RESTRICTEDWORLD TRADE
ORGANIZATIONWT/DSB/M/79
15 May 2000
(00-1975)
Dispute Settlement Body
25 April 2000
MINUTES OF MEETING
Held in the Centre William Rappard
on 25 April 2000
Chairman:  Mr. Stuart Harbinson (Hong Kong, China)
Subjects discussed: Page
1. United States - Anti-dumping duty on dynamic random access memory
semiconductors (DRAMS) of one megabit or above from Korea.........................................1
(a) Recourse to Article 21.5 of the DSU by Korea...........................................................................1
2. Canada - Patent protection of pharmaceutical products ......................................................3
(a) Implementation of  the re commendations of the DSB................................................................3
1. United States - Anti-dumping duty on dynamic random access memory semiconductors
(DRAMS) of one megabit or above from Korea
(a) Recourse to Article 21.5 of the DSU by Korea
1. The Chairman drew attention to the communication from Korea contained in document
WT/DS99/8.
2. The representative of Korea said that on 19 March 1999, the DSB had adopted the Panel
Report on "United States - Anti-Dumping Duty on Dynamic Random Access Memory
Semiconductors (DRAMS) of One Megabit or Above from Korea"  (WT/DS99/R).  The Panel had
found that both the US regulation regarding revocation of the anti-dumping order and the
US application of that regulation in the anti-dumping proceeding on DRAMS from Korea  were
inconsistent with Article 11 of the Anti-Dum ping Agreement (ADA).  On 19 May 1999, pursuant to
Article 21.3(b) of the DSU, Korea and the United States had agreed that the reasonable period of time
for the United States to implement the DSB's reco mmendations and rulings and to bring its measures
into conformity with the ADA should end on 19 November 1999.
3. Korea regretted that the United States had not complied with the DSB's recommendations and
rulings.  First, instead of adopting a standard conforming to the Panel's findings and rulings, theUnited States had adopted a very general standard that could be, and in fact had been, misapplied.
The amended regulation did not impose on the United States the burden to establish that continued
imposition of the anti-dumping duty was necessary.  Although the Panel Report had not used the
words "burden of proof," the Panel had required a "demonstrable basis on which to reliably conclude
that the continued imposition of the duty is necessary" (paragraph 6.50), thus clearly imposing theburden on the US administering authority.  Rather than limiting the administering authority's
discretion so as to bring the US law into conformity with Article 11 of the ADA, the amended
regulation increased its discretion in disregard of the Panel's decision.WT/DSB/M/79
Page 2
4. Second, in applying the altered, yet still flawed, standard for revocation, the United States had
continued to apply the antidumping order to Korean DRAMS without demonstrating by substantial,
positive evidence that the anti-dumping duty order needed to be maintained in order to offset
dumping, as required by the Panel.  The US De partment of Commerce (the US Department) had
failed to conduct any new analysis in its redetermination.  The unpublished Final Results ofRedetermination simply reproduced the analysis contained in the US Department's earlier
determination not to revoke the anti-dumping duty order.  Indeed, the Results repeated verbatim much
of the text of the original determination.  Moreover, the Results were not based on "substantial,
positive evidence" that the order was necessary to offset dumping.  They were based merely on
conjecture and supposition like the original results of the third administrative review.
5. Third, Korea believed that by failing to publish the Final Results in the Federal Register, the
United States had failed to meet its obligations under Article X:1 of GATT 1994 and Article 12.3 ofthe ADA.  On these grounds, Korea was requesting, pursuant to Article 21.5 of the DSU, that the
matter be referred to the original Panel.  Korea firmly believed that the Panel would find that the
United States had not taken measures to comply with the DSB's recommendations and rulings.  Korea
also wished to invoke Article 19 of the DSU to ensure  that the Panel, in addition to issuing its rulings,
suggest how the United States might implement in this case.
6. The representative of the United States said that his country regretted Korea's decision to
prolong this matter.  The United States was confident that it would be found to have fully
implemented the DSB's recommendations and ruli ngs.  On 14 January 2000, the United States had
circulated its status report on this matter, in accordance with Article 21.6 of the DSU.  At the
27 January DSB meeting, his delegation had described how the United States had fully complied withthe DSB's recommendations.  He did not wish to reiterate that description at the present meeting.
Instead, he would respond to the allegations in document WT/DS99/8 containing Korea's recourse to
Article 21.5 of the DSU.  Since Korea's allegations had been expressed in general terms and because
Korea had declined to consult with the United Stat es in advance on the specifics of its concerns, the
US responses - of necessity - had to be general in nature.  First, with respect to the revised regulationof the US Department, Korea claimed that by incorporating the "necessary" standard of Article 11.2
of the ADA into its regulations, the US Department had acted inconsistently with the Panel's findings.
This assertion was baseless.  Contrary to Korea's statement, what the Panel had actually stated was
that the US Department's prior standard of "not likely" was inconsistent with the "necessary" standard
of Article 11.2 of the ADA because the "not likely" standard would not adduce the level of evidence
required by the "necessary" standard.  Purely as a matter of logic, the adoption of the "necessary"
standard addressed the Panel's concerns.
7. In addition, Korea had complained that the "neces sary standard effectively is not a standard at
all".  However, that was the standard set out in of Article 11.2 of the ADA.  As the Unites States had
previously stated, while Korea might prefer a different standard, the "necessary" standard was the
standard to which Members had agreed to adhere.  Indeed, if, as Korea had asserted, "the necessary"
standard was "not a standard at all", it followed as a matter of logic that the Panel had erred in havingfound the United States to have violated a non-existent standard.  What Korea really was asserting
was that it was not enough for Members to conform their domestic legislation to the provisions of the
WTO Agreements. Instead, according to Korea, Members had to go beyond the text of the WTO
Agreements and flesh out through statutes or regulations all of those provisions that, in the view of
Korea, were insufficiently precise.  In other word s, Members were obligated to go where the drafters
of the WTO Agreements had declined to go.  Members should be extremely concerned about Korea's
argument.  If accepted as valid, the United States was confident that each Member, including Korea,
would suddenly find itself in violation of multiple WTO Agreements.  That would be particularly true
for those Members under whose legal systems the WTO Agreements were incorporated directly into
domestic law.WT/DSB/M/79
Page 3
8. Second, it was particularly difficult to respond to Korea's assertions concerning the
US Department's factual findings since Korea did not cite any specific error in its analysis.  Suffice it
to say that while the US Department had made its revised determination with an open mind, the fact
that the bottom line result did not change should not come as a surprise, because the evidence showed
that a resumption of dumping by the Korean DRAMS exporters was likely, thus making the continuedimposition of anti-dumping duties necessary.  Indeed, while the US Department had not considered
this for purposes of its revised determination, the United States would be remiss if it did not point out
that a subsequent review of the DRAMS anti-dumping order for a later time period showed that, in
fact, the Korean exporters had resumed dumping.  In addition, it should be noted that in commenting
on the US Department's analysis of the evidence in the course of the revised determination process,
the Korean exporters had repeated arguments that had been made previously before the Panel and had
been rejected by the Panel.  Indeed to the extent that the Panel had addressed factual issues, it hadupheld the US Department's consideration of the facts.
9. Finally, Korea had made claims regarding Article X:1 of GATT 1994 and Article 12.3 of the
ADA.  In the view of the United States, the publication by the US Department of its revised
determination on its Internet Web Site the same method by which the US Department had published
its revised determinations made in the context of domestic litigation satisfied the requirements ofthese two provisions.  The United States could not imagine a more public method of disseminating a
decision than putting it on the World Wide Web.  The United States considered that Korea's recourse
to Article 21.5 of the DSU was ill-founded and ill-advised, and was confident that the panel would so
find.
10. The DSB took note of the statements and agreed
 to refer to the original Panel, pursuant to
Article 21.5 of the DSU, the matter raised by Korea in document WT/DS99/8.  The Panel would have
standard terms of reference.
11. The representative of the European Communities reserved his delegation's third-party right to
participate in the Panel's proceeding.
2. Canada - Patent protection of pharmaceutical products
(a) Implementation of  the recommendations of the DSB
12. The Chairman recalled that in accordance with the DSU provisions, the DSB kept under
surveillance the implementation of recommendations and rulings of the DSB in order to ensure
effective resolution of disputes to the benefit of all Members.  In this respect, Article 21.3 of the DSU
provided that the Member concerned shall inform the DSB, within 30 days after the adoption of the
panel or Appellate Body report, of its intentions in respect of implementation of the recommendations
and rulings of the DSB.  He recalled that at its meeting on 7 April 2000, the DSB had adopted thePanel Report on "Canada - Patent Protection of Pharmaceutical Products".  He invited Canada to
inform the DSB of its intentions in respect of  implementation of  the DSB's recommendations.
13. The representative of Canada said that, pursuant to Article 21.3 of the DSU,  her country
wished to inform the DSB of its intentions with respect to implementation of the DSB's
recommendations and rulings with regard to the case under consideration.  As stated at the 7 AprilDSB meeting, Canada was disappointed with the Pane l's ruling on Section 55.2(2) of the Patent Act,
the so-called "stockpiling exception".  Nevertheless, Canada intended to implement fully the DSB's
recommendations and rulings.  Canada would require a reasonable period of time in which to do so, in
the light of the legal changes that would be necessary to bring its measures into conformity with its
WTO obligations.  Her country looked forward to di scussing this issue bilaterally with the EC, and
hoped to report back shortly to the DSB on this matter.WT/DSB/M/79
Page 4
14. The representative of the European Communities said that his delegation noted the statement
made by Canada and its commitment to implement fully the DSB's recommendations.  The EC
remained at Canada's disposal to discuss a reasonable period of time for implementation.
15. The DSB took note of the statements, and of the information provided by Canada regarding
its intentions in respect of implementation of the DSB's recommendations.
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