RESTRICTED  
  
WT/DSB/M/431  
 
4 September 2019 
(19-5656) Page: 1/33 
Dispute Settlement Body  
22 July 2019  
   
 
MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 22 JULY 2019 
Chairman: H.E. Dr David Walker (New Zealand)  
Table of Contents  
1   SURVEILLANCE OF IMPLEMENTATION OF RE COMMENDATIONS ADOPTE D  
BY THE DSB  ................................ ................................ ................................ ......................  2 
A. United  States – Anti-dumping measures on certain hot rolled steel products from  
Japan: Status report by the United  States  ................................ ................................ ..............  2 
B. United  States – Section 110(5) of the US Copyright Act: S tatus report by the United  States  ..... 3 
C. European Communities – Measures affecting the approval and marketing of biotech  
products: Status report by the European Union ................................ ................................ ....... 5 
D. United  States – Anti-dumping and countervailing measures on large residential  
washers from Korea: Status report by the United  States  ................................ ..........................  6 
E. United  States – Certain methodologies and their application to anti -dumping proceedings 
involving China: Status report by the United  States  ................................ ................................ . 7 
F. Indonesia – Measures concerning the importation of chicken meat and chicken  
products: Status report by Indonesia ................................ ................................ .....................  8 
G. United  States – Anti-dumping measures on certain oil country tubular goods from  
Korea: Status report by the United  States  ................................ ................................ ..............  9 
H. Indonesia – Importation of horticultural products, animals and animal products:  
Status report by Indonesia  ................................ ................................ ................................ ... 9 
2   UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  OF 2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE DSB  ........................  11 
A. Statement by the European Union  ................................ ................................ .................... 11 
3   EUROPEAN COMMUNI TIES AND CERTAIN MEM BER STATES – MEASURE S AFFECTING 
TRADE IN LARGE CIVIL AIRCRAFT : IMPLEMENTATION OF THE RECOMMENDATIONS 
ADOPTED BY THE DSB  ................................ ................................ ................................ .... 12 
A. Statement by the United  States  ................................ ................................ ....................... 12 
4   STATEMENT BY THE  UNITED  STATES ON TR ANSPARENCY IN WTO DI SPUTE 
SETTLEMENT  ................................ ................................ ................................ ..................  13 
5   UNITED  STATES – SAFEGUARD MEASURE ON  IMPORTS OF CRYSTALL INE SILICON 
PHOTOVOLTAIC PRODUCT S................................ ................................ ............................  24 
A. Request for the establishment of a Panel by China  ................................ ............................. 24 WT/DSB/M/431  
 
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  6   INDIA – MEASURES  CONCERNING SUGAR AN D SUGA RCANE  ................................ ..... 25 
A. Request for the establishment of a Panel by Brazil  ................................ ............................. 25 
B. Request for the establishment of a Panel by Australia  ................................ ......................... 26 
C. Request for the establishment of a Panel by Guatemala  ................................ ...................... 27 
7   APPELLATE BODY APPOINTMENTS: PROPOS AL BY ARGENTINA; AUS TRALIA; BENIN; 
THE PLURINATIONAL ST ATE OF BOLIVIA; BRAZ IL; CANADA; CENTRAL AFRICAN 
REPUBLIC; CHILE; CHI NA; COLOMBIA; COSTA RICA; CUBA; DOMINICA N REPUBLIC; 
ECUADOR; EGYPT; EL S ALVADOR; THE EUROPEA N UNION; GUATEMALA; HONDURAS; 
HONG KONG, CHINA; IC ELAND; INDIA; INDONE SIA; ISRAEL; KAZAKHS TAN; KOREA; 
LIECHTENSTEIN; MEXIC O; MOROCCO; NEW ZEAL AND; NICARAGUA; NORT H MACEDONIA; 
NORWAY; PAKISTAN; PA NAMA; PARAGUAY; PERU ; QATAR; THE RUSSIAN  FEDERATION; 
RWANDA; SINGAPORE; S WITZERLAN D; THE SEPARATE CUST OMS TERRITORY OF 
TAIWAN, PENGHU, KINM EN AND MATSU; TURKEY ; UKRAINE; URUGUAY; 
THE BOLIVARIAN REPUBLIC OF VENEZUELA AND VIE T NAM  ................................ ..........  28 
 
1  SURVEILLAN CE 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.197)  
B. United  States  – Section 110(5) of the US Copyright Act: Status report by the United  States  
(WT/DS160/24/Add.172)  
C. Europe an Communities – Measures affecting the approval and marketing of biotech products: 
Status report by the European Union (WT/DS291/37/Add.135)  
D. United  States  – Anti-dumping and countervailing measures on large residential washers from 
Korea: Status report  by the United  States  (WT/DS464/17/Add.19)  
E. United  States  – Certain methodologies and their application to anti -dumping proceedings 
involving China: Status report by the United  States  (WT/DS471/17/Add.11)  
F. Indonesia – Measures concerning the importatio n of chicken meat and chicken products: Status 
report by Indonesia (WT/DS484/18/Add.10)  
G. United  States  – Anti-dumping measures on certain oil country tubular goods from Korea: Status 
report by the United  States  (WT/DS488/12/Add.10)  
H. Indonesia – Importa tion of horticultural products, animals and animal products: Status report by 
Indonesia (WT/DS477/21/Add.6 – WT/DS478/22/Add.6)  
1.1.  The Chairman  noted that there were eight sub -items under this Agenda item concerning status 
reports submitted by delegations pur suant to Article 21.6 of the DSU. He recalled that Article 21.6 
requires that: "[u]nless the DSB decides otherwise, the issue of implementation of the 
recommendations or rulings shall be placed on the Agenda of the DSB meeting after six months 
following th e 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, he invited delegations to provide up -
to-date information about their compliance efforts. He also reminded de legations that, as provided 
for in Rule 27 of the Rules of Procedure for DSB meetings: "[r]epresentatives 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". He then turned to the first status report under this Agenda item . 
A. United  States  – Anti-dumping measures on certain hot rolled steel products from 
Japan: Status report b y the United  States  (WT/DS184/15/Add.197)  
1.2.  The Chairman  drew attention to document WT/DS184/15/Add.197, which contain ed 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.  WT/DSB/M/431  
 
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  1.3.  The representative of the United  States  said that t he United  States  had provided a status report 
in this dispute on 11 July 2019, in accordance 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 
recommendations and rulings of the DSB that ha d yet to be addressed, the US Administration w ould 
work with the US Congress with respect to appropriate statutory measures that would resolve this 
matter.  
1.4.  The representative of  Japan  said that his country  thank ed the United  States  for its most recent  
status report and its statement made at the present meeting . Japan , once again , called 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 agree d 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.172)  
1.6.  The Chairman  drew attention to document WT/DS160/24/Add.172, which contain ed 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 t he United  States  had provided a status report 
in this dispute on 11 July 2019, in accordance with Article  21.6 of the DSU. The US Administration 
would continue to confer with the European Union, and to work closely with the US Congress, in 
order to reach a mutually satisfactory resolution of th is matter.  
1.8.  The representative of  the European Union  said that his delegation wished to thank the 
United  States for its status report and its statement made at the present meeting. The EU wished to 
refer to its statements made at previous DSB meetings. The EU wished to resolve this dispute as 
soon as possible . 
1.9.  The representative of  China  said that China note d that the United  States  had submitted 
173 status reports in this dispute. Regrettably, these reports were not different from previous 
reports. Nearly two decades after the DSB had adopted the Panel Report in this dispute,  Section 
110(5) of the US Copyright Act , which had been  found inconsistent with the requirements of the 
Berne Convention and the TRIPS Agreement, remain ed intact. As a result, the United  States  had 
been continuously failing to accord the minimum standard of protection as required by the TRIPS 
Agreement and it ha d become the only WTO Member who fail ed to implement the DSB 's 
recommendations and rulings under the TRIPS Agr eement.  Article 21.1 of the DSU stated that: 
"[p]rompt compliance with recommendations or rulings of the DSB is essential in order to ensure 
effective resolution of disputes to the benefit of all Members ". China, therefore, urged the United 
States to faith fully honour its commitments under the DSU and the TRIPS Agreement by 
implementing the DSB's recommendations and rulings in this dispute without further delay . 
1.10.   The representative of  the United  States  said that as the United States had noted at prior DSB 
meetings, by intervening under this Agenda item,  China attempted to give the appearance of concern 
for intellectual property rights . Yet, China had been engaging in industrial policy which had resulted 
in the transfer and theft of intellectual property and technology to the detriment of the United States 
and its workers and businesses . In contrast, the intellectual property protection that the 
United  States  provide d within its own territory equal led or surpasse d that of any other Member. 
Indeed,  none of the damaging technology transfer practices of China that the United States had  
discussed at recent DSB meetings were practices that Chinese companies or innovators face d in the 
United  States . 
1.11.   The representative of China  said that t he United  States , once again , had tried to derail the 
discussion under this Agenda item by irrelevant accus ation against China's  intellectual property 
protection . The issue under this Agenda item was quite straightforward: the question was whether 
the United States fully implemented the DSB's recommendations and rulings in this dispute. 
Obviously, the answer was negative . In its statement, the United  States  had suggested that its 
intellectual property protection "equal led or surpasse d" that of any other  Member. However, that 
assertion contradict ed a simple fact. In  this dispute , the United  States  continue d to fail to accord the 
minimum standard of protection as required by the TRIPS Agreement. And such persistent WT/DSB/M/431  
 
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  non-compliance  had made the United  States  the only WTO Member who failed to implement the 
DSB's recommendations and rulings under the TRIPS Agreement. With respect to vague accusations 
against China's intellectual property protection  and industrial policy, China  would refrain from 
repeating its positions which ha d been fully elaborated on many occasions, such as the 28 May 2018 
DSB meeting and the 26 July 2018 General Council meeting. China  noted that such criticisms mainly 
came from a notorious Section 301 Report issued by the USTR in 2018. Regrettably, that report had 
been fabricated on the wilful distortion of selective facts and dubious evidence that either c ould not 
be verified or be admitted in any credible dispute settle ment proceeding. While China always 
welcome d constructive dialogue s with Members, it simply d id not have any appetite for blame 
games. Back to this Agenda item, the long overdue US implementation ha d undermined the 
effectiveness and credibility of the WTO dispute settlement  system . China  urged the United  States  
to faithfully honour  its implementation obligation without further delay. In addition, China invite d 
the United  States  to consider including in its next status report the specific reasons as to why 
implementation c ould not take place for s uch a long time  in this disput e. 
1.12.   The representative of the United  States  said that t he United  States  was disappointed that 
China ha d chosen this forum to – once again – propagate inaccuracies and misrepresentations about 
the USTR 's Section 301 investigation of China 's forced technology transfer practices and the report 's 
findings. Contrary to China 's assertions, the United  States  had made its findings on China 's 
unreasonable acts, policies, and practices after having receiv ed and consider ed extensive hearing 
testimony and other evidence over an investigation that had lasted seven months. The United  States  
had issued a 200 -page report  in March 2018 documenting how China had engaged in unfair 
practices, including forced technology transfer, failing to protect US intellectual property rights, and 
conducting and supporting cyber theft from US companies, robbing them of sensitive commercial 
information and trade secrets.1 The United  States  had followed -up with an update to the report in 
November 2018, finding that China had failed to address fundamentally these concerns. These unfair 
trade practices and other actions by China ha d cost the United  States  and its businesses hundreds 
of billions of dollars every year. Indeed, no one, other than China, seriously defend ed as fair the 
forced technology transfer policies followed by China. For example, at the conclusion of the meeting 
of trade ministers of the United  States , Japan, and the EU in September 2018, the Ministers, 
consistent with prior statements, "recalled their shared view that no country should require or 
pressure technology transfer from foreign companies to domestic compan ies, including, for example, 
through the use of JV requirements, foreign equity limitations, administrative review and licensing 
processes, or other means. The Ministers found such practices to be deplorable ". The Ministers also 
"affirmed their commitment to effective means to stop harmful forced technology transfer policies 
and practices ". China ha d labelled  US actions as "aggressive unilateralism ".  In the US view,  this 
was a deliberate misrepresentation of US actions and intentions. It was China that ha d chosen to 
engage in forced technology transfer, not the United  States . The facts demonstrating China 's acts, 
policies, and practices had been  clear. Therefore, the United  States  had faced a stark choice: either 
take action to protect its citizens, innovat ors, and businesses against the serious, on -going harm 
from China 's policies and practices – or simply accept that this harm w ould continue because the 
WTO d id not provide the necessary disciplines or remedies. The view of the US Administration was 
clear: the United States  would not passively accept unfair and harmful practices that cause d 
real-world harm to US workers and businesses just because the WTO d id not provide an effective 
remedy for those practices.  
1.13.   The representative of China  wished  to reiterate that the Section 301 investigation by the 
United  States , which  had targeted China's  so-called forced technology transfer , did not have any 
legal or factua l basis. In this Section 301 investigation, the USTR had acted at the same time as the 
prosecutor, jury and judge. The report that came of that investigation had been  fabricated on the 
wilful distortion of selective facts and dubious evidence that either c ould not be verified or be 
admitted in any credible dispute proceeding. China  would refrain from engag ing in blame game s. 
However, China  urged the United  States  to implement its WTO obligations by comply ing with the 
TRIPS Agreement and the DSU. China also wished  to urge the United  States  to stop its unilateralism.  
1.14.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
                                                
1 Findings of the Investigation into China 's Acts, Policies, and Practices Related to Technology Transfer, 
Intellectual Property, and Innovation under Section 301 of the Trade Act of 1974, Office of the United  States  
Trade Representative, available at https://ustr.gov/sites/default/files/Section%20 301%20FINAL.PDF.  WT/DSB/M/431  
 
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  C. European Communities – Measures affecting the ap proval and marketing of biotech 
products: Status report by the European Union (WT/DS291/37/Add.135)  
1.15.   The Chairman  drew attention to document WT/DS291/37/Add.135, which contain ed 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.  
1.16.   The representative of the European  Union  said that t he EU cont inued to progress with the 
authori zations where the European Food Safety Authority ha d finalized its scientific opinion and 
concluded that there were no safety concerns. As explained by the EU and confirmed by the US 
delegation during the EU -US biannual co nsultations held on 12 June 2019, efforts to reduce delays 
in authori zation procedures were constantly maintained at a high level. This ha d resulted in a 
clear improvement of the situation. It was worthwhile noting that the slow reaction of the applicants 
in certain applications also increase d the overall average time needed for risk assessment.  On 
12 July 2019, two draft authori zations for GM maize2 had been  presented for a vote in a member 
States Committee with a "no opinion " result. These measures w ould be submitted for a vote in the 
Appeal Committee in September 2019. On the same day, two draft authori zations for renewal of the 
authori zations of a GM soybean3 and a GM oilseed rape4 had been  presented for a vote in an Appeal 
Committee with a "no opinion " result. The European Commission w ould then decide on these 
authori zations.  During the 24 June 2019 DSB meeting, the United States had referred to what was 
known as the European "Opt -out Directive". The EU wished  to reiterate t hat the DSB's 
recommendations and rulings in this dispute d id not cover that Opt -out Directive. As for the US 
suggestion related to the statement by the EU Group of Scientific Advisors, the EU w ished  to clarify 
that this statement focuse d on the future cha llenges for products obtained by new mutagenesis 
techniques. Th at statement d id not state nor imply that Directive 2001/18 /EC would not be fit for 
purpose as regard ed "conventional GMOs ". The EU act ed in line with its WTO obligations. The EU 
wished  to conclude that the EU approval system was not covered by the DSB 's recommendations 
and rulings.  
1.17.   The representative of  the United  States  thank ed the European Union (EU) for its status report 
and its stateme nt made at the present meeting . The United  States  remain ed concerned with the 
EU's approval of biotech products. While the United States  welcome d the improvements in some 
areas, the United States  continue d to see on -going and persistent delays that affect ed dozens of 
applications that ha d been awaiting approval for months or years, or that ha d already received 
approval. The United  States  had further concerns that these extensive delays w ould become even 
worse as the EU prepare d for political changes at the European Commission in 2019 . Even when the 
EU finally approve d a biotech product, EU member States continue d to impose bans on the 
supposedly approved product. The amendment of E U Directive  2001/18, through EU Directive 
2015/413, permit ted EU member States to, in effect, restrict or prohibit cultivation of genetically -
modified organisms (GMOs), even where the European Food Safety Authority (EFSA) ha d concluded 
that the product was safe. This  legislation permit ted EU member States to restrict for non -scientific 
reasons certain uses of EU -authorized biotech products in their territories by demanding that EU 
cultivation authorizations be adjusted to exclude portions of an EU member State 's terri tory from 
cultivation. At least seventeen EU member States, as well as certain regions within EU member 
States, ha d submitted such requests with respect to MON -810 maize. This fact c ould not be squared 
with the EU 's representation at previous DSB meetings that no EU member State ha d taken action 
to ban the cultivation of such a product. The United States  again emphasize d the public statement 
issued by the EU 's Group of Chief Scientific Advisors on 13 November 2018, in response to the 25 
July 2018, European Court of Justice (ECJ) ruling that addresse d the forms of mutagenesis that 
qualif ied for the exemption contained in EU Directive 2001/18 . The Directive had been  a central 
issue in dispute in these WTO proceedings, and concern ed the deliberate release into the 
environment of genetically modified organisms, or GMOs. Contrary to the EU 's statement at prior 
DSB meetings, this ECJ ruling relate d to previously authorized GMOs. The EU Group of Chief Scientific 
Advisors ' statement sp oke to the lack of scientific su pport for the regulatory framework under EU 
Directive 2001/18 . The EU ha d repeatedly maintained at previous DSB meetings that these scientific 
advisors were just another group of stakeholders. The statement d id not reflect a mere reaction 
                                                
2 MON 89034 × 1507 × MON 88017 × 59122 × DAS -40278 -9 (and GM maize combining two, three or 
four of the single events MON 89034, 1507, MON 88017, 59122 and DAS -40278 -9) and MON 89034 × 1507 × 
NK603 × DAS -40278 -9 (and sub -combinations MON 89 034 × NK603 × DAS -40278 -9, 1507 × NK603 × DAS -
40278 -9 and NK603 × DAS -40278 -9). 
3 Renewal of soybean A2704 -12. 
4 Renewal of oilseed rape T45. WT/DSB/M/431  
 
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  from a group of stakeholders. Rather, the statement reflect ed scientific advice provided to the 
European  Commission in response to its request for such information. The Chief Scientific Advisors ' 
message provided in the stateme nt was clear: "in view of the Court 's ruling, it becomes evident that 
new scientific knowledge and recent technical developments have made the GMO Directive no longer 
fit for purpose ". The statement further advise d that current scientific knowledge call ed into question 
the definition of "GMOs " under the Directive and note d that mutagenesis, as well as transgenesis, 
occur red naturally. The EU should take this guidance into account in its reconsideration of the GMO 
Directive, in light of the evident advanceme nts in scientific knowledge and technology. The 
United  States  urged the EU to act in a manner that w ould bring into compliance the measures at 
issue in this dispute. The United  States  further urge d the EU to ensure that all of its measures 
affecting the ap proval of biotech products, including measures adopted by individual EU member 
States, were based on scientific principles, and that decisions were taken without undue delay.  
1.18.   The representative of  the European Union  said that t he WTO Agreements d id not req uire full 
international harmoni zation and le ft some regulatory space or autonomy to individual WTO Members. 
The E U had different regulatory approaches to non -GMOs and GMOs but, in all cases, such 
regulations d id not discriminate between imported and domestic like products. No EU member State 
had imposed any "ban". Under the terms of the Directive referred to by the U nited States, an EU 
member State c ould adopt measures restricting or prohibiting cultivation only when such measures 
were in line with EU law and were reasoned, proportional, non -discriminatory and based on 
compelling grounds. The free movement of seeds in the EU market was embedded in Article 22 of 
Directive 2001/18/EC which provide d that "[m]ember St ates may not prohibit, restrict or impede 
the placing on the market of GMOs, as or in products, which comply with the requirements of this 
Directive ". The EU  also note d that according to the provisions of the opt -out Directive (Article 26b, 
point 8) , the m easures adopted under the Directive "shall not affect the free circulation of authori zed 
GMOs " in the EU. Currently , the "EU Common Catalogue of varieties of agricultural species " include d 
150 varieties of MON -810 maize , which were allowed to be marketed i n the EU. Until now, the EU 
Commission ha d never received any complaints from seed operators or other stakeholders 
concerning the restriction of marketing of MON -810 maize seeds in the EU. This confirm ed the 
smooth functioning of the internal market of MON -810 maize seeds. In relation to the statement of 
the Group of Chief Scientific Advisors, the EU w ished  to recall that the Group of Chief Scientific 
Advisors was an independent group of scientific experts providing scientific advice to the European 
Commiss ion. There ha d been many reactions to the judgement of the Court of Justice of the 
European Union, bringing forward a wide range of different views. The statement , to which the 
United  States  had referred, fed into on -going discussions on new mutagenesis te chniques with all 
stakeholders. Some stakeholders agree d with that statement. However, many others consider ed 
that the current legislation was adequate to address the risks from new biotechnology developments. 
The European Commission ha d a strong interest in this debate, which should go beyond the 
regulatory status of new technologies and focus on the way new products could help address societal 
challenges, such as climate change or reduction of use of pesticides, without negative consequences 
on health and  environment protection.  
1.19.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
D. United  States  – Anti-dumping and countervailing measures on large residential 
washers from Korea: Status report by the United  States  (WT/DS464/17/Add.19)  
1.20.   The Chairman  drew attention to document WT/DS464/17/Add.19, which contain ed the status 
report by the United  States  on progress in the implementation of the DSB 's recommendations in the 
case concerning anti -dumping and countervailing measures on large residential washers from Korea.  
1.21.   The representative of the United  States  said that t he United  States  had provided a status 
report in this dispute on 11 July 2019 , 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 of large residential 
washers from Korea (84 Fed. Reg. 19,763 (6 May 2019)). With this action, the United  States  had 
completed implementation of the DSB 's recommendations concerning those anti -dumping and 
counterva iling duty orders. The United  States  continue d to consult with interested parties on options 
to address the DSB's recommendations relating to other measures challenged in this dispute.  
1.22.   The representative of  Korea  said that his country  thank ed the United  States  for its status 
report. Korea welcome d the revocation of the orders which had been  part of the measures at issue WT/DSB/M/431  
 
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  in this dispute. Korea was currently evaluating if the revocation, in its effect, w ould achieve full 
compliance with the DSB's rulings and recommendations in terms of the "as applied " measures at 
issue in this dispute . At the same time, Korea again urge d the United  States  to take prompt and 
appropriate steps to implement the DSB 's recommendations for the "as such " measure  at issue  in 
this dispute.  
1.23.   The representative of  Canada  said that t he United  States  continue d to fail to comply with the 
DSB's ruling, arising out of the Appellate Body Report in this dispute , that the "differential pricing 
methodology " was "as such " WTO-inconsistent. The United  States  had also ignored the DSB 's 
recommendation that the United States  bring itself into compliance with its obligations. Instead, the 
United States continue d to apply the "as such"  inconsistent differential pricing methodology  in 
investigations with respect to foreign companies and continue d to collect cash deposits from foreign 
exporters based on its inconsistent methodology. As a result, Canada had been  forced to challenge 
the differential pricing methodology  measu re in the "US – Differential Pricing Methodology" dispute 
(DS534)  and Viet Nam was currently doing the same in the "US – Fish Fillets" dispute (DS536) . 
Before these panels, the U nited States  had simply re -litigated the dispute concerning the 
WTO-consistenc y of the differential pricing methodology  and ha d asked the Panels to ignore the 
Appellate Body 's findings. Canada remain ed deeply concerned with the United  States ' continued 
failure to comply with the DSB 's recommendations and rulings in this dispute. Thi s failure seriously 
undermine d the security and stability of the multilateral trading system.  
1.24.   The representative of  China  said that t he Panel and Appellate Body in this dispute had  
concluded that "the United  States ' use of zeroing when applying the W -T comparison methodology 
is inconsistent 'as such ' with Article 2.4.2 of the Anti -Dumping Agreement ". China was deeply 
concerned about US compliance with the DSB 's adopted recommendations and rulings  in this 
dispute . The  situation look ed even more dire when it c ame to implementation in respect of 
WTO-inconsistent "as such " measures. Just as demonstrated in this disput e, the United  States  had 
consistently showed little will to move forward in this area. However, when inconsistent "as such " 
measures c ould not be brought into conformity, a reality check suggested  that it was almost 
inevitable for those measures to be brought up again and again in  future dispute settlement 
proceedings. Various resources were wasted for all parties in grappling with those relitigated issues, 
while the credibility and effectiveness of the dispute settlement mechanism was also being seriously 
undermined. Implementatio n was critical to the well -functioning of the dispute settlement system. 
Anything short of prompt and full compliance was a clear departure from the clear rules set out in 
DSU. This  should be of grave concern to the Membership. China,  therefore , urged the United  States  
to honour  its WTO obligations by faithfully implementing the DSB's adopted recommendations and 
rulings in all its cases.  
1.25.   The representative of the United  States  said that the United States  certainly disagree d with 
China's statement under this Agenda item  but wished to make a second statement  under this Agenda 
item in response to the statement made by  Canada.  The United  States  recall ed that Canada ha d 
commenced a dispute settlement proceeding against the United  States  concerning the use of a 
differential pricing analysis and zeroing. Canada had lost that dispute before the panel. The 
United  States  was willing, of course, to discuss Canada 's concerns bilaterally.  
1.26.   The DSB took note of the statements and agree d to revert to this matter at its n ext regular 
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.11)  
1.27.   The Chairman  drew attention to document WT/DS471/17/Add.11, which contain ed 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 proceedings involving 
China.  
1.28.   The re presentative of the United  States  said that t he United  States  had provided a status 
report in this dispute on 11 July 2019 , in accordance with Article 21.6 of the DSU. As explained in 
that report, the United  States  continue d to consult with interested parties on options to address the 
DSB's recommendations.  
1.29.   The representative of  China  said that o n 22 May 2017, the DSB had adopted the 
Appellate  Body Report and the modified Panel Report in this dispute. The arbitration pursuan t to WT/DSB/M/431  
 
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  Article 21.3(c) of the DSU had determined the reasonable period of time  to be 15 months, expiring 
on 22 August 2018. On 9 September 2018, in light of the US non-compliance, China had requested 
the authorization from the DSB to suspend concessions or o ther obligations and the matter ha d been 
referred to arbitration in accordance with Article 22.6 of the DSU. China was deeply disappointed 
that, more than two years after the DSB  had adopt ed recommendations and rulings in this dispute, 
and 11 months after the expiry of the reasonable period of time , the United  States  continue d to fail 
to bring its inconsistent measures into conformity with WTO rules. Besides "consulting with 
interested parties ", no implementation progress c ould be detected. Without implementation, these 
WTO-inconsistent measures continue d to infringe China 's legitimate economic interests, distort ed 
relevant international markets and undermine d the rules -based dispute settlement mechanism. 
Ironically, when the United States  was the complain ant in a dispute, it never shie d away from 
aggressively pursuing prompt implementation by responding parties . China  encourage d the 
United  States  to apply the same degree of enthusiasm in promoting implementation both in its 
offensive and defensive cases.  As provided in Article 21.1 of the DSU: "[p]rompt compliance with 
recommendations or rulings of the DSB is essential in order to ensure effective resolution of disputes 
to the benefit of all Members ". China,  therefore , urged the United  States  to take concrete actions to 
fulfil its WTO obligations and promptly bring its measures in conformity with the DSB 's 
recommendations and rulings in this dispute.  
1.30.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
F. Indonesia – Measures  concerning the importation of chicken meat and chicken 
products: Status report by Indonesia (WT/DS484/18/Add.10)  
1.31.   The Chairman  drew attention to document WT/DS484/18/Add.10, whic h contain ed the status 
report by Indonesia on progress in the implementation of the DSB 's recommendations in the case 
on measures concerning the importation of chicken meat and chicken products.  
1.32.   The representative of Indonesia  said that her country  submit ted its report in accordance with 
Article 21.6 of DS U. On 22 November 2017, the DSB had adopted the recommendations and rulings 
in this dispute . At the 22 January 2018 DSB meeting, Indonesia had informed the DSB of its intention 
regarding  the implem entation of  the DSB's recommendations and rulings in this matter. Indonesia 
and Brazil had also informed the DSB, on 15 March 2018, of their agreement on a reasonable period 
of time for Indonesia to implement the DSB's recommendations and rulings. This rea sonable period 
of time  had expired  on 22 July 2018. Indonesia ha d stated its intention o f implement ing the DSB's 
recommendations and rulings at previous DSB meetings as well as in bilateral meetings with Brazil. 
As Indonesia ha d explained, all products covered  in this dispute c ould now be imported. Importers 
could also modify their license s at any time  without any sanctions. These changes we re reflected in 
the new Minister of Trade Regulation No. 29/2019 concerning Provisions for  Import and Export of 
Animals and Animal Products which had come into force on 24 April 2019. It was available in English 
on the Ministry of Trade website. With respect to the  distribution plan requirement, there w ould be 
no such obligation in the new Mini ster of Agriculture Regulation. The draft regulation was now going 
through the  enactment process. With respect to undue delay, Indonesia w ished  to reiterate that all 
animals and animal products, both fresh and processed, imported into Indonesia had to  be 
accompanied by a health or veterinary certificate from their country of origin. The desk review 
process for the questionnaire submitted by Brazil ha d been completed . Nevertheless, based on the 
result of the review, Indonesian authorit ies had  kindly requeste d Brazil to provide further information 
inter alia  on the result of surveillance/monitoring of Salmonella and the recall system mechanism. 
Indonesia st ood ready to continue communicat ing, and holding consultations as and when necessary, 
with Brazil with re gard to this matter.  
1.33.   The representative of  Brazil  said that his country  thank ed Indonesia for its status report. Brazil 
recall ed that it had now been  one year since the expiry of the reasonable period of time to implement 
the DSB's recommendations and rulings in this dispute . Since  Brazil ha d initiated compliance 
proceedings  in this dispute, Brazil prefer red to address these issues before the panel.  Nevertheless, 
Brazil d id not believe that the changes mentioned in Indonesia's  status report br ought  Indonesia 
into compliance with its obligations under the covered agreements.  
1.34.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  WT/DSB/M/431  
 
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  G. United  States  – Anti-dumping measures on certain oil country tubular goods from 
Korea: Status report by the United  States  (WT/DS488/12/Add.10)  
1.35.   The Chairman  drew attention to document WT/DS488/12/Add.10, which contain ed the status 
report by the United  States  on progress in the  implementation of the DSB 's recommendations in the 
case concerning anti -dumping measures on certain oil country tubular goods from Korea.  
1.36.   The representative of the United  States  said that t he United  States  had provided a status 
report in this dispute on 11 July 2019, in accordance with Article 21.6 of the DSU. The report note d 
that the US Department of Commerce  had published a final decision memorandum on 5 July 2019, 
in which it had implemented the DSB 's recomm endations in a manner that respect ed US WTO 
obligations. The determination by the US Department of Commerce fully respond ed to the findings 
of the WTO panel in relation to determining profit for purposes of constructed value. The 
United  States  had therefor e come into compliance within the reasonable period of time agreed to by 
Korea and the United  States , which had expired on 12 July 2019.  
1.37.   The representative of  the Korea  said that Korea thank ed the United  States  for its status 
report. First of all, Korea w ished  to point out procedural aspects related to  the implementation by 
the United  States . According to the US status report and statement, the US Department of 
Commerce (USDOC) had published , on 5 July 2019, a final decision memorandum revising certain 
aspects of the final determination in the anti -dumping duty order on certain oil country tubular goods 
from Korea. However, as of 5 July 2019, neither Korea nor any of the Korean interested parties 
participating in the Section 129 proceeding had be en notified of the US final determination. In fact, 
it was not until ten days later, on 15 July 2019, that USDOC officials had uploaded a final 
determination notice, dated 5 July 2019, to the administrative record. For this reason, Korea 
consider ed that, e ven if posting its final determination had constituted "publication " and 
"implementation " of its revised measures, the United  States  clearly had not compl ied with the 
DSB's rulings and recommendations within the reasonable period of time , which had expired  on 
12 July 2019. Also, in terms of the consistency of the compliance measure of the United  States , 
Korea note d that the USDOC ha d determined to make no changes to the Section 129 preliminary 
determination. Thus, Korea remain ed of the view that the United  States  had not achieved compliance 
with the DSB 's rulings and recommendations through its Section 129 proceeding. Therefore, Korea  
wished  to reiterate its comments made at the 24 June 2019 DSB meeting. Korea believed  that the 
final determination d id not achieve compliance in every key issue in this dispute, among others : (i) 
the use of the respondent 's actual sales data under the "preferred method " of Article 2.2.2 chapeau  
of the Anti -Dumping Agreement;  (ii) the definition of the "same general category of products " under 
the "alternative methods " of the sub-paragraphs of Article 2.2.2  of the Anti -Dumping Agreement;  
and (iii) the calcu lation of the profit cap under Article 2.2.2(iii)  of the Anti -Dumping Agreement . 
Korea w ould take appropriate steps to maintain and protect its rights under the DSU within the 
context of this dispute.  
1.38.   The representative of  the United  States  said that the United States  respectfully t ook exception 
to the point that the United  States  had not complied fully with the DSB 's recommendations. The US 
Department of Commerce 's determination addresse d the DSB 's recommendation first by clarifying 
the scope of the anti-dumping duty order on certain oil country tubular goods from Korea. The US 
Department of Commerce had further determined that it was unable to use respondents ' actual data 
to determine profit for constructed value, that it had resorted to a reasonable  method to determine 
the appropriate data to calculate this profit, and that it had calculated and applied a profit cap based 
on "facts available ". If it d id become necessary, the United  States  was fully prepared to defend this 
determination. The United  States remain ed open to further discussions to address any concerns that 
Korea m ight have.  
1.39.   The DSB took note of the statements.  
H. Indonesia – Importation  of horticultural products, animals and animal products: Status 
report by Indonesia (WT/DS477/21/Add.6 – WT/DS478/22/Add.6)  
1.40.   The Chairman  drew attention to document WT/DS477/21/Add.6 – WT/DS478/22/Add.6, 
which contain ed the status report by Indonesia on pro gress in the implementation of the DSB 's 
recommendations in the case concerning importation of horticultural products, animals and animal 
products.  WT/DSB/M/431  
 
- 10 - 
 
  1.41.   The representative of Indonesia  said that her country  submit ted its report pursuant to  Article 
21.6 of the D SU. On 22 November 2017, the DSB had adopted the recommendations and rulings in 
respect of the panel and Appellate Body reports in these disputes . At the 28 February 2018 DSB 
meeting, Indonesia had informed the DSB that it intended to implement the DSB's recommendations 
and rulings in these disputes, but that it would need a reasonable period of time to do so. Pursuant 
to Article 21.3(b) of the DSU, Indonesia , New Zealand and the United  States  had mutually agreed 
on a reasonable peri od of time to implement the DSB 's recommendations and rulings . That 
reasonable period of time had expired on 22 July 2018. Nevertheless, with regard to the DSB 's 
recommendations and rulings concerning Measure 18, Indonesia, New Zealand and the 
United  State s also ha d mutually agreed that Indonesia w ould have more time to make statutory 
changes to comply with the DSB 's recommendations and rulings in these disputes. Accordingly, 
New Zealand and the United  States  would not initiate further proceedings concernin g Measure 18 
until at least 22 June 2019. At the present  meeting, Indonesia w ished  to inform the DSB that 
Indonesia ha d already taken appropriate steps to implement the DSB 's recommendations and rulings 
in these disputes within the reasonable period of time agreed to by the parties as reflected in 
Indonesia 's status report submitted ahead of the  28 January 2019  DSB meeting . Indonesia also 
wishe d to inform the DSB that bilateral engagement ha d taken place between Indonesia and New 
Zealand and the United  States  after the expi ry of the reasonable period of time . During this 
engagement, Indonesia ha d presented in great detail concrete steps that Indonesia ha d taken to 
adjust its regulations so as to be in line with the DSB's recommendations and rulings , i.e., to improve 
the importation system with a view to  attaining full compliance status. In line with those bilateral 
engagements, Indonesia also had further amend ed the existing regulations as  shown by the 
enactment of the Minister of Trade Regulation No. 29/2019 concerning Provisions for Import and 
Export of Animals and Animal Products and the Minister of Trade Regulation No. 44/2019 concerning 
the Import Provision on Horticultural Products. These regul ations had come into force on 24 April 
2019 and 12 June 2019 respectively. Indonesia was also making further adjustments to the Minister 
of Agriculture Regulations that w ould be finaliz ed soon. The draft regulations were now under going 
the enactment process. Regarding Measure 18, the drafts of amendment along with its academic 
drafts ha d been prepared by the Government and w ould soon be finalized. This w ould be discussed 
in a meeting at the Ministerial level.  
1.42.   The representative of  New Zeala nd wished to  thank Indonesia for its statement made at the 
present meeting and its status report. New Zealand acknowledge d the steps that ha d been taken by 
Indonesia to date to bring its regulations into compliance with the DSB's recommendations and 
ruling s, and Indonesia 's commitment to comply fully with the DSB's recommendations and rulings . 
New Zealand note d that both of the compliance deadlines that had been  agreed between the parties 
had now expired. New Zealand was seriously disappointed that full compliance ha d still not been 
reached in respect of a number of measures addressed in the case. New Zealand was particularly 
concerned about: the failure to meet the 22 June 2019 deadline for the removal of Measure 18 and 
the continued enforcement by Indon esia of : limited application windows and validity periods , harvest 
period import bans , import realisation requirements and restrictions placed on import volumes based 
on storage capacity. These issues, and others, continue d to adversely impact New Zealand 
exporters. The New Zealand Embassy in Jakarta was therefore following developments closely and 
would also appreciate direct updates on progress, including concrete timelines for further regulatory 
and legislative changes. New Zealand strongly encourage d Indonesia to take appropriate steps, 
swiftly, to achieve long -term, commercially meaningful, compliance with the DSB's 
recommendations and rulings .  
1.43.   The representative of  the United  States  said that Indonesia continue d to fail to bring its 
measures into comp liance with WTO rules. The United  States  and New Zealand agree d that 
significant concerns remain ed with the measures at issue, including the continued imposition of: 
harvest period restrictions, import realization requirements, warehouse capacity requireme nts, 
limited application windows, limited validity periods, and fixed licensed terms. The United  States  
remain ed willing to work with Indonesia to fully and meaningfully resolve this dispute. The 
United  States  was still waiting to hear from Indonesia the c oncrete actions it w ould take to bring its 
measures into full compliance. Indonesia 's statement that "further adjustment " to Measures 1 -17 
was "under intensive discussion " did not provide clarity in this regard, nor d id Indonesia 's claim that 
it would make "statutory changes " with regard to Measure 18. The United  States  looked forward to 
receiving further detail from Indonesia regarding the planned changes to its regulations an d laws.  
1.44.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  WT/DSB/M/431  
 
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  2  UNITED  STATES  – CONTINUED DUMPING  AND SUBSIDY OFFSET ACT OF 2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE DSB  
A. Statement by the European Union  
2.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European  Union. He then invited the representative of the European  Union to speak . 
2.2.  The representative of the European Union  said that his delegation requested, once again, that 
the United States stop transferring anti -dumping and countervailing duties to the US industry . Every 
disbursement that still took place was clearly an act of non -compliance with the DSB's 
recommendations and rulings i n this dispute . The EU renew ed its call on the United  States  to abide 
by its clear obligation under Article 21.6 of the DSU to submit implementation reports in this dispute. 
The EU w ould continue to place this item on the Agenda of DSB meetings  as long as the U nited 
States had not fully implemented the DSB's recommendations and rulings in this dispute and until 
the disbursements ceased completely . 
2.3.  The representative of  Canada  said that his country wished to thank the EU for placing this item 
on the DSB's ag enda. Canada agreed with the EU that this matter should remain subject to the 
surveillance of the DSB until the United States ceased to apply the measures at issue in this dispute .  
2.4.  The representative of  Brazil  said that as an original party to the Byrd Am endment dispute s, his 
country wished to thank once again the EU for placing this item on the DSB's Agenda . After more 
than 16 years following the DSB's recommendations in this dispute and more than 13 years 
after the enactment of the Deficit Reduction Act that had repealed the Byrd Amendment,  millions 
of dollars in anti -dumping and countervailing duties were still being disbursed to US domestic 
petitioners . Brazil call ed on the United  States  to comply fully with the DSB 's recommendations and 
rulings in this dispute.  
2.5.  The representative of  the United  States  said that a s the United  States  had noted at previous 
DSB meetings, the Deficit Reduction Act – which include d a provision repealing the Continued 
Dumping and Subsidy Offset Act of 2000 (CDSOA)  – had been  enacted into law in February 2006. 
Accordingly, the United  States  had taken all actions necessary to implement the DSB 's 
recommendations and rulings in these disputes. The United States  recall ed, furthermore, that the 
EU ha d acknowledged that the Deficit Reduction Act d id not permit the distribution of duties collected 
on goods entered after 1 October 2007, more than 11 years ago. In May 2019, the EU had notified 
the DSB that disbursements under CDSOA from EU exports to the United States  had totalled  
US$4,660.86 in fiscal year 2018. As such, the current level of countermeasures under the Arbitrator 's 
formula in relation to goods entered before 2007 was US$3,355.82. The EU had announced it would 
apply an additional duty of 0.00 1% on certain imports of the United  States . These values were no 
doubt outweighed by the associated costs resulting from the application of these countermeasures. 
With respect to the EU 's request for status reports in this matter, as the United States  had already 
explained at previous DSB meetings, there was no obligation under the DSU to provide further status 
reports once a Member announce d that it ha d implemented the DSB 's recommendations, regardless 
of whether the complaining party disagree d about compl iance. The practice of Members – including 
the European Union as a responding party – confirm ed this widespread understanding of Article 21.6  
of the DSU . Accordingly, since the United  States  had informed the DSB that it ha d taken all steps 
necessary for co mpliance, there was nothing more for the United  States  to provide in a status report.  
2.6.  The representative of the European Union  recall ed that the Continued Dumping and Subsidy 
Offset Act of 2000 had been  found in breach of WTO rules for transferring anti -dumping and 
countervailing duties to the US industry. As long as the redistribution of collected duties continue d, 
the United  States  would be in breach of Article 18.1 of the A nti-Dumping  Agreement and Article 32.1 
of the SCM Agreement and full implementation w ould still have to be delivered. Once the transfers 
of anti -dumping and countervailing duties cease d, so w ould the EU measures.  
2.7.  The DSB took note of the statements.  WT/DSB/M/431  
 
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  3  EUROPEAN COMMUNITIES  AND CERTAIN M EMBER STATES – MEASU RES AFFECTING 
TRADE IN LARGE CIVIL  AIRCRAFT: IMPLEMENT ATION OF THE RECOMME NDATIONS 
ADOPTED BY THE DSB  
A. Statement by the United  States  
3.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the Unit ed States. He then invited the representative of the United States to speak . 
3.2.  The representative of  the United  States  said that t he United  States  noted that once again the 
European Union ha d not provided Members with a status report concerning the dispute "EC – Large 
Civil Aircraft " (DS316). As the United  States had noted at several recent DSB meetings, the EU ha d 
argued – under a different Agenda item – that where the EU as a complaining par ty did not agree 
with another responding party Member 's "assertion that it has implemented the DSB ruling ", "the 
issue remains unresolved for the purposes of Article 21.6 DSU ". Under this Agenda item, however, 
the EU argue d that by submitting a compliance communication, the EU no longer need ed to file a 
status report, even though the United  States  as the complaining party disagree d that the EU ha d 
complied. At recent DSB meetings, the European Union ha d attempted to reconcile this view with 
the EU 's long -standing, contrary position. The EU argue d that the situation in the "US — Offset Act 
(Byrd Amendment)" dispute (DS217, DS234)  differed from that of the "EC – Large Civil Aircraft " 
dispute (DS316) because, in "US — Offset Act (Byrd Amendment)" , the dispute ha d been adjudicated 
and there were no further proceedings pending. With this statement, the EU suggest ed that the 
issue of compliance in the "US — Offset Act (Byrd Amendment)"  dispute had been adjudicated; in 
fact, it ha d not. The United  States  had repealed the Continued Dumping and Subsidy Offset Act of 
2000 measure after all of the proceedings in the dispute. By way of contrast, in the "EC – Large Civil 
Aircraft" dispute (DS316) , the EU 's claim of compliance ha d already been rejected by the DSB 
through its adoption of compliance panel and appellate reports. Under the EU 's own view, the EU 
should be providing a status report. Yet it ha d failed to do so, demonstrating the inconsistency in 
the EU 's position depending on its status as complaining or r esponding party. The US position ha d 
been consistent and clear: under Article 21.6 of the DSU, once a responding Member provide d the 
DSB with a status report that announce d compliance, there was no further "progress " on which it 
could report, and therefore  no further obligation to provide a report. But as the EU allegedly 
disagree d with this position, it should for future DSB meetings provide status reports in the "EC – 
Large Civil Aircraft" dispute (DS316) .  
3.3.  The representative of  the European Union  said that his delegation  maintain ed its statement 
that this dispute ha d been adjudicated and there were currently no further proceedings pending. 
This was a statement of fact and d id not – as the U nited States implie d – suggest that the issue of 
compliance  had been adjudicated. As in previous DSB meetings, the United States  had again implied 
that the EU was taking inconsistent positions under Article 21.6 of the DSU, depending on whether 
the EU was a complaining party or a defending party in a dispute. The US assertion remain ed without 
merit. As the EU ha d repeatedly explained at previous  DSB meetings, the crucial point for the 
defending party 's obligation to provide status reports to the DSB was the stage of the dispute. In 
the "EC – Large Civil Aircraft" d ispute (DS316) , the dispute was at a stage where the defending 
party d id not have an obligation to submit status reports to the DSB. The EU wished to  remind the 
DSB that in the "EC – Large Civil Aircraft" dispute (DS316) , the EU had notified to the WTO a n ew 
set of measures in a compliance communication which had been present ed at the 28 May 2018 DSB 
meeting. The U nited States had responded that the measures included in that communication d id 
not bring the EU in full compliance with the DSB's recommendations and rulings  in that dispute . In 
light of the US position, on 29 May 2018 , the EU had requested consultations with the United  States , 
under Articles 4 and 21.5 of the DSU . These consultatio ns had failed to resolve the dispute. 
Consequently, the EU had asked for the establishment of a compliance panel. The compliance panel 
had been  established by the DSB on 27  August 2018. That compliance panel was currently reviewing 
"the existence or consis tency with a covered agreement of measures taken to comply with the 
recommendations and rulings " of the DSB. As part of that review, the compliance panel had held a 
meeting with the parties and third parties and was assessing the parties ' replies to its qu estions on 
compliance of the EU. The EU wished  to stress , once again , that there was a compliance proceeding 
still on -going in this dispute. Whether or not the matter was "resolved " in the sense of Article 21.6 
of the DSU wa s the very subject matter of thi s on-going litigation. He questioned how it could be 
said that the defending party should submit "status reports " to the DSB in these circumstances . The 
EU would be very concerned with a reading of Article 21.6 of the DSU  that would require the 
defending party to notify the purported "status of its implementation efforts " through the submission 
of status reports to the DSB, while dispute settlement proceedings on that precise issue were on -WT/DSB/M/431  
 
- 13 - 
 
  going. The view of the EU was further supported by Article 2 of the DSU on the administration of the 
dispute settlement rules and procedures: where, further to the disagreement between the parties 
on compliance, a matter was with the adjudicators, it was temporarily taken out of the DSB 's 
surveillance.  
3.4.  The DSB took note of the statements.  
4  STATEMENT BY THE UNITED  STATES  ON TRANSPARENCY IN WTO DISPUTE SETTLEME NT 
4.1.  The Chairman  said that t his item was on the Agenda of t he present  meeting at the request of 
the United  States . He then invited the representative of the United States to speak . 
4.2.  The representative of  the United  States  said that t he United  States  had requested that this 
item be placed on the A genda of the present meeting to discuss an important systemic issue that 
was critical for the legitimacy of the WTO: transparency – or, perhaps more accurately, the lack of 
transparency – in WTO dispute settlement. For more than 20 years, the United  States  had called for 
Members to su pport the WTO by bringing openness and accountability to its operations, including 
dispute settlement.5 At the 1998 Ministerial Conference, the United  States  had proposed that all 
dispute settlement hearings at the WTO be opened to the public, and all subm issions by the parties 
be made publicly available. In its statement at the 1998 Ministerial Conference, the United  States  
had urged that Members could act to improve transparency even without changes to the rules. To 
that end, the United  States  had formall y offered to open every panel proceeding that it was a party 
to and had invited every other Member to agree to make this happen. The United  States  had also 
made a proposal to mandate greater transparency through public meetings and access to 
submissions, b ut that proposal was without prejudice to the ability of Members to agree to greater 
transparency in each dispute. The story over 20 years later was disappointing, at best. Several 
WTO Members – including Australia, Canada, Chinese Taipei, the European Uni on, Japan, 
New Zealand, Norway and others – had joined the United  States  in supporting greater transparency 
in WTO dispute settlement, for example, by agreeing to open hearings and public submissions. But 
most WTO Members continue d to insist on closed hear ings and confidential submissions. What was 
worse, some even s ought  to prevent the United  States  and other Members from making statements 
publicly available through direct viewing when they were made. By pushing to keep WTO dispute 
settlement closed and se cret, these Members den ied other Members, the public, and the WTO itself 
of significant benefits. Open and transparent WTO dispute settlement enhance d WTO Members ' 
understanding of the dispute settlement system, particularly for those who d id not participa te often 
in the system. Transparent dispute settlement promote d confidence in the professionalism and 
objectivity of WTO adjudicators, to the benefit of both parties and the dispute settlement system as 
a whole. Experience under the WTO dispute settlement system since 1995 ha d demonstrated that 
the findings contained in reports adopted by the D SB could affect large sectors of society. At the 
same time, increased Membership in the WTO ha d also meant that more governments and their 
citizens ha d an interest in the DSB's recommendations. Yet the citizens of the parties, and those 
Members not party to a dispute, ha d been unable to even observe the arguments or proceedings 
that result ed in thes e recommendations. The public ha d a legitimate interest in WTO dispute 
settlement proceedings. Indeed, acceptance of the results of WTO dispute settlement could  be 
facilitated if those being asked to assist in the task of implementation, such as the consti tuencies of 
legislators, ha d confidence that the DSB 's recommendations were the result of a fair and adequate 
process. Despite the myriad benefits that greater transparency would bring to the WTO, a number 
of Members – including several major users of the dispute settlement system such as China, India, 
Indonesia, Korea, Mexico, Russia, Turkey, Vietnam and others – had not only failed to agree to be 
more transparent in WTO dispute settlement. These Members ha d also actively obstructed efforts 
by others to pr ovide greater transparency. Regrettably, some panels ha d acquiesced to the efforts 
of those Members by failing to permit another party to at least make its own statements open to 
public observation. And so what the United States had  observed in the early d ays of the WTO 
continue d to remain the general rule, and not the exception: "Today, when one nation challenges 
the trade practices of another, the proceeding takes place behind closed doors ".6 This was 
unacceptable. The lack of transparency in WTO dispute settlement at the inception of the WTO had 
been regrettable, but could perhaps be viewed as a remnant of the GATT system Members had  
inherited that could be expected to change as the WTO dispute settlement system matured. Over 
20 years later and after the initiation of nearly 600 disputes, the continued lack of transparency was 
                                                
5 See, e.g., Statement by the President of the United  States , WTO Ministerial 1998, available at 
https://www.wto.o rg/english/thewto_e/minist_e/min98_e/anniv_e/clinton_e.htm.  
6 Statement by the President of the United  States , WTO Ministerial 1998, available at 
https://www.wto.org/english/thewto_e/minist_e/min98_e/anniv_e/clinton_e.htm.  WT/DSB/M/431  
 
- 14 - 
 
  simply untenable and threaten ed to further erode public support for and, ultimately the viability of, 
this system that Members profess ed to support. In its statement at the present m eeting , the United 
States  would first examine the rules and dispel common myths that certain Members s ought  to 
perpetuate about the dispute settlement system. There was no obligation in the DSU for WTO dispute 
settlement to be transparent. However, as the United States  would explain, while the DSU d id not 
mandate and ensure transparency, it d id not prohibit decisions by Members to provide transparency, 
either. Second, the United  States  would highlight that while some Members ha d promoted 
transparent disput e settlement over the years, for too long, too many Members that claim ed to 
support the multilateral trading system actively undermine d it by promoting a lack of transparency 
in WTO dispute settlement. The positions of those Members opposed to greater tran sparency in WTO 
dispute settlement were misguided and only serve d to erode support for the WTO and its dispute 
settlement system. Third, the United States  would explain why opposition to greater transparency 
was contrary to the choices Members ha d made in other fora, including other international 
adjudicatory systems and regional free trade agreements. This highlight ed that WTO Members d id 
not object to transparent dispute settlement in principle. Rather, Members recognize d the value of 
transparency. Thus, there should be no impediment for all Members to take action now to remedy 
the lack of transparency in WTO dispute settlement. Fourth, before concluding, the United  States  
would discuss briefly additional benefits associated with a transparent dispute sett lement system.  
4.3.  With regard to the issue that t he lack of transparency in WTO dispute settlement was not 
required by the DSU , the United States said that t he text of the DSU d id not mandate a lack of 
transparency in WTO dispute settlement. The relevant pro visions of the DSU ma de clear that WTO 
adjudicators – panels, the Appellate Body, and arbitrators under Articles 21.3(c), 22.6, and 25 of 
the DSU – were not precluded from opening their meetings and hearings to all Members and the 
public. The DSU also ma de clear that nothing in the DSU preclude d a party from making its 
submissions publicly available. To the contrary, and as the United States  would discuss, the scope 
of confidentiality provided for in the DSU was explicit and limited and d id not extend to th e 
"arguments " or "positions " of a party.  
4.4.  First, the DSU did not preclude open meetings . In this regard, the United States said that 
panels, the Appellate Body and Arbitrators ha d opened their meetings to observation by WTO 
Members and the public upon request, and this was entirely consistent with the DSU. There was no 
DSU impediment to open meetings. Article 14.1 and Appendix 3 of the DSU did not mandate closed 
panel meetings or p reclude open panel meetings. Article 14.1 of the DSU (entitled "Confidentiality ") 
provide d that a panel 's "deliberations " shall be confidential.7 A panel 's "deliberations " referred to the 
internal discussions and debates among panel members concerning the dispute.8 But panel 
deliberations was not synonymous with panel meetings. These were different terms used in the DSU 
with distinct meanings. In fact, whereas Article 14.1 of the DSU referred to a panel 's "deliberations ", 
other provisions of the DSU ma de reference to a panel meeting.9 Panel working procedures often 
explicitly distinguish ed between the deliberations of the panel (which were confidential) and the 
meetings of the panel with the parties, which  could  be opened or closed, depending on the partie s 
to the dispute. Thus, maintaining a panel 's deliberations as confidential in no way suggest ed that a 
panel 's meetings with the parties to a dispute also had to be maintained as confidential. In its 
experience proposing open panel meetings, the United Sta tes had heard from certain Members 
opposed to greater transparency that Appendix 3 of the DSU preclude d open panel meetings. Those 
Members often point ed to paragraph 2 of Appendix 3, which indicate d that a panel shall meet in 
closed session. Reliance on th is paragraph alone was an incomplete reading of the DSU. Article 12.1 
of the DSU state d that a panel could  depart from the working procedures in Appendix 3 after 
consulting the parties to a dispute. In other words, it was clear from the DSU that a panel could 
decide not to meet in closed session after consulting with the parties. These provisions of the DSU 
also had to be read and applied in conjunction with Article 18.2 of the DSU.10 The second sentence 
of Article 18.2 was the critical provision on transpar ency in the DSU. It provide d as follows: "Nothing 
                                                
7 Article 14.1 of the DSU ("[p]anel deliberations shall be confidential).  
8 See, e.g., Cambridge English Dictionary Online, "deliberation ", available at 
https://dictionary.cambridge.org/us/ , ("considering or discussing something).  
9 See, e.g., Article 15.2 of the DSU ("[a]t the request of a party, the panel shall hold a further meeting 
with the parties on the issues identified in  the written comments).  
10 Article 18.2 of the DSU ("[w]ritten submissions to the panel or the Appellate Body shall be treated as 
confidential, but shall be made available to the parties to the dispute. Nothing in this Understanding shall preclude 
a party t o a dispute from disclosing statements of its own positions to the public. Members shall treat as 
confidential information submitted by another Member to the panel or the Appellate Body which that Member 
has designated as confidential. A party to a dispute  shall also, upon request of a Member, provide a non -
confidential summary of the information contained in its written submissions that could be disclosed to the 
public).  WT/DSB/M/431  
 
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  in this Understanding shall preclude a party to a dispute from disclosing statements of its own 
positions to the public ". What Article 18.2 provide d was that no other provision of the DSU could 
interfere wi th a party 's right to disclose its own positions to the public, including statements made 
in the course of a panel meeting. Thus, Article 18.2 of the DSU made clear that a party to a dispute 
could  make public its statements and answers during a panel meeti ng. And if those statements c ould 
be made public, there was no reason why a party c ould not seek to have such statements and 
answers made public at the time they were spoken. Appellate oral hearings ha d also been opened 
to observation by WTO Members and the public, and this was fully consistent with the DSU. 
Article  17.10 of the DSU d id not preclude open hearings by the Appellate Body. Article 17.10, first 
sentence, state d as follows: "the proceedings of  the Appellate Body shall be confidential ".11 This 
provision d id not state that an oral hearing had to  be closed to the public and non -participating 
WTO Members. And the text of the DSU confirm ed that the statements of WTO Members at an 
appellate oral heari ng need ed not be kept confidential against that party 's wishes. First, the DSU d id 
not even mention an oral hearing of the Appellate Body. The omission of any mention of an Appellate 
Body oral hearing in Article 17 mean t that Article 17.10 c ould not be dir ected at the question of 
whether such a hearing should be open or closed. Second, Article 17.10 also had to be read and 
applied in conjunction with Article 18.2 of the DSU. As noted, Article 18.2 state d that nothing in the 
DSU shall prevent a Member from m aking public statements of its own position. This text ma de clear 
that a Member that was party to an appeal could  agree to make public its statements and answers 
to questions during an appellate hearing. And if those statements c ould be made public, again,  there 
was no reason why that party c ould not have such statements and answers made public at the time 
they were spoken. Third, the practice of the Appellate Body to permit third -party observation of 
appellate oral hearings confirm ed an understanding that Article 17.10 of the DSU did not mandate 
closed hearings. There was nothing in the DSU that authorize d a third -party to observe any Appellate 
Body hearing, as opposed to the panel stage, at which a third -party was given the opportunity to 
participate in a separate third -party session under Article 10.2  of the DSU . If Article 17.10 required 
that the appellate hearing be confidential, then third parties would have no right to attend and would 
not be permitted to observe the confidential oral hearing. Fourth, an interpretation of Article 17.10 
of the DSU as requiring the confidentiality of appellate hearings was not consistent with Article 17, 
which require d that the Appellate Body decide an appeal through issuance of an appellate report. 
Like panel reports, Appellate Body reports routinely describe d the arguments of the parties and third 
parties at the hearing. If Article 17.10 was construed as requiring the  hearing be confidential, then 
such description or quotations would be a breach of confidentiality. An Appellate Body report also 
disclose d the arguments of the parties and third parties in their written submissions, and notices of 
appeal were circulated a s public WT/DS documents in every appeal. They were not kept confidential 
despite forming part of the "proceedings ". Of course, no meaningful report could be issued without 
engaging with the notice of appeal or the parties ' arguments. In addition to panel and appellate 
proceedings, the DSU provide d for arbitral proceedings in Articles 21.3(c), 22.6 and 25. There was 
no provision of the DSU applicable to arbitrators that correspond ed to Article 14 or Article 17.10, 
nor was there any other provision of the DS U that suggest ed meetings with arbitrators could not be 
opened to the public. Thus, there was no DSU impediment to Members taking action now to improve 
the transparency in WTO dispute settlement by agreeing to permit observation of the meetings and 
hearing s in their disputes by all Members and the public.   
4.5.  Second, t he DSU did not preclude Members from making their submissions public. In this 
regard,  the United States said that the DSU did not preclude Members from making their submissions 
and oral statement s public . The confidentiality a Member could invoke under Article 18.2 of the DSU 
was limited, and it was important to distinguish between what it provide d and what it d id not. There 
were only two references in Article 18.2 to maintaining something as conf idential. The first sentence 
of Article 18.2 provide d that: "[w]ritten submissions to the panel or the Appellate Body shall be 
treated as confidential, but shall be made available to the parties to the dispute ". However, the 
second sentence of Article 18.2, as discussed, provide d that: "[n]othing in this Understanding shall 
preclude a party to a dispute from disclosing statements of its own positions to the public ". Read 
together, this mean t that a Member c ould make public its own written submis sions, oral statements, 
and responses to questions (i.e., statements of its own position), but it could not make public the 
"written submission[] " of another Member. The only other reference to maintaining something as 
confidential in Article 18.2 was in the third sentence, which provide d that: "Members shall treat as 
confidential information submitted by another Member to the panel or the Appellate Body which that 
Member has designated as confidential ". Information mean t "facts about a situation, person, e vent, 
                                                
11 Article 17.1 of the DSU ("[t]he proceedings of the Appellate Body shall be confident ial. The reports of 
the Appellate Body shall be drafted without the presence of the parties to the dispute and in the light of the 
information provided and the statements made "). WT/DSB/M/431  
 
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  etc.",12 and in the context of Article 18  of the DSU , was contained in and a subset of a submission. 
This was demonstrated, for example, in the last sentence of Article 18.2, which refer red to 
"information contained in " a written submission. "Informat ion" did not refer to "arguments " or 
"positions " of a Member. Not only d id this follow from the ordinary meaning of "information ", but it 
follow ed from the context of Articles 14.2 and 17.10  of the DSU , which require d panel and appellate 
reports to be drafted "in the light of the information provided and the statements made " (that is, 
the written and oral submissions that were the statements of a Member 's position). And Article 18.2 
of the DSU did not refer to all "information ", but rather only that information which another Member 
had designated as confidential. Even where a Member ha d designated specific "information " as 
confidential, that Member was obligated by Article 18.2 to provide, upon request, a non -confidenti al 
summary of that "information " that could be made public. In sum, each Member ha d the right to 
make public its own submissions and statements. Thus, there was no DSU impediment to Members 
taking action now to improve the transparency in WTO dispute settl ement by agreeing to make their 
submissions available to all Members and the public.  
4.6.  Third, the DSU did not provide for confidentiality of "arguments " or "positions " of a party. In 
this regard,  the United States said that s ome Members, in opposing open meetings or public 
submissions, ha d argued that the DSU provide d for the confidentiality of "arguments " or "positions " 
of a party. It d id not, and there were several reasons why such an argument fail ed. No provision of 
the DSU provide d for the confide ntiality of "arguments " or "positions ". The United States had  already 
discussed the limited references to confidentiality and what they provide d. Moreover, a requirement 
to maintain arguments or positions as confidential would conflict with several provisi ons of the DSU. 
First, such a requirement would render inutile the right of a Member under Article 18.2 of the DSU 
to disclose to the public its own statements given that in a dispute settlement proceeding a Member 's 
statements were by their nature going t o engage with, and thus reveal, the arguments and positions 
of another Member. A Member 's statement of its own positions w ould necessarily relate to the 
arguments of the other Members. No respondent could ever disclose its own statements consistent 
with a requirement not to reveal the other party 's arguments or positions. For example, a responding 
party in a dispute s ought  to explain that the complaining party ha d not demonstrated that a 
challenged measure was inconsistent with the WTO obligations identifie d by the complaining party. 
Even if the responding party had merely stated its position that a particular measure was consistent  
with a particular provision of a covered agreement, that statement would reveal the measure  
challenged by the complainant and, by implication, the position  of the complainant with respect to 
that measure and legal claim.  Second, if a party or third -party could maintain its positions and 
arguments as confidential, it would not be possible for panels to issue reports satisfying the 
requirements of the DSU. This explain ed why no panel ha d ever treated the arguments or positions 
of a party as confidential. For example, a panel, in its report, was required to "set out the findings 
of fact, the applicability of relevant provisions and th e basic rationale behind any findings and 
recommendations that it makes ".13 A panel report was also required to include "descriptive (factual 
and argument) sections ".14 Consequently, a panel report w ould set out each party 's and third -party 's 
arguments and positions, including any defences  invoked. Nothing in the DSU provide d that the 
material required to be included (and thus disclosed) in a panel report was nonetheless to be treated 
as confidential. There was nothing inherently confidential  about a party or third -party 's arguments 
and positions in a dispute, and these were routinely made public throughout the dispute settlement 
process. In fact, panels and the Appellate Body routinely call ed on parties and third parties to provide 
executive summaries of their arguments to be attached to their reports. Those executive summaries 
reflect ed the statements of the parties and third parties. It was difficult to reconcile attaching those 
statements to panel and appellate reports in the form of an exe cutive summary, which w ould be 
made public, while finding that a Member was not permitted to disclose them.15 The findings by 
several panels and the Appellate Body permitting a Member to make its statements publicly while 
permitting other Members in that di spute to maintain confidentiality of their statements was 
instructive. For example, in the appeal in "US – Continued Suspension ", some Members had objected 
to opening the hearing for their statements, but that had not prevent ed the Appellate Body from 
opening the hearing to those Members who wished to deliver their statements publicly. The Appellate 
Body had decided that third participants could choose to deliver their statements in an open hearing 
while "[o]ral statements and responses to questions by thir d participants wishing to maintain the 
                                                
12 Cambridge English Dictionary Online, "information ", available  at https://dictionary.cambridge.org/us/.  
13 Article 12.7 of the DSU.  
14 Articles 15.1 and 15.2 of the DSU.  
15 In this regard, it is useful to note that the Appellate Body has itself recognized that "Appellate Body 
reports contain summaries of the participants ' and third participants ' written and oral submissions and frequently 
quote directly from them.  Public disclosure of Appellate Body reports is an inherent and necessary feature of our 
rules-based system of adjudication  "US – Continued Suspension " (AB), Annex  IV, para. 5.  WT/DSB/M/431  
 
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  confidentiality of their submissions will not be subject to public observation ". No party or third -party 
had been  required to make any redaction from its oral statements even if the statement could have 
disclose d the arguments or positions of a third -party that had wished to maintain confidentiality for 
its submissions. Thus, one Member d id not have a right to prevent another Member from disclosing 
their statements to the public even if they might disclose the "argumen ts" or "positions " of a party.  
4.7.  With re gard to the issue that d espite the efforts of the United  States  and other supporters of 
transparency, WTO dispute settlement remain ed overwhelming ly non-transparent , the United States 
said that a lthough the United  States  and other Members ha d undertaken serious efforts to provide 
for greater transparency in WTO dispute settlement, the successes ha d been limited. Due to the 
unwillingness of certain Members, including several major users of the syst em, to agree to open 
panel meetings and public submissions, WTO dispute settlement remain ed largely a secret process 
unfolding behind closed doors. And further damaging the system, these same Members consistently 
object ed to a request by a Member, such as the United  States , that wishe d to make its own 
statements publicly available.  
4.8.  First, the United  States  and other Members had agreed to open meetings in a number of 
disputes . In this regard, t he United States said that a t least 22 panels,16 16 appeals,17 and six 
arbitrators18 in proceedings under Article 22.6 of the DSU ha d opened their meetings – but this was 
a minority of proceedings in the nearly 600 disputes initiated to date. Those experiences ha d been 
beneficial for Members and for the p ublic, and thus ultimately for the WTO. The United  States  had 
been a leading Member in requesting transparent proceedings for disputes in which it was a party. 
The United  States  had been joined in these efforts by other Members that similarly value d 
transp arency and recognize d its importance for the continued viability of WTO dispute settlement, 
including Australia, Canada, Chinese Taipei, the European Union, Japan, New Zealand, and Norway 
among others. With regard to open meetings, the United  States  and Eu ropean Union ha d agreed to 
open meetings in at least 15 dispute settlement proceedings.19 It was notable that this list include d 
open meetings by panels, the Appellate Body, and Article 22.6 Arbitrators in the large civil aircraft 
disputes, despite the comm ercial sensitivity of those disputes and the business confidential 
information and highly sensitive business confidential information involved. The United  States  had 
also worked closely with Canada and agreed to open meetings in a number of WTO disputes, 
including in at least nine separate proceedings and including open panel meetings, appellate 
hearings, and the meeting of an Article 22.6 Arbitrator.20 Open meetings ha d also been held in 
disputes in which the United  States  was not a party, including for exa mple the panel meetings in 
"EC – Bananas III " (21.5 – Ecuador) (DS27), "EC – IT Products " (Japan) (DS376), "EC – IT Products " 
                                                
16 See, e.g., "US/Canada – Continued Suspension ", "EC and certain member States – Large Civil Aircraft ", 
"US – Large Civil Aircraft " (2nd complaint) , "EC – Bananas III " (Article 21.5 – US), "US – Continued Zeroing ", 
"US – Zeroing " (EC) (Articl e 21.5 – EC), "Australia – Apples ", "US – Zeroing " (Japan) (Article 21.5 – Japan) , "EC 
– IT Products ", "US – COOL ", "EC and certain member States – Large Civil Aircraft " (Article 21.5 – US), "US – 
Measures Affecting Trade in Large Civil Aircraft " (Article 21.5 – EU), "EC – Seal Products " (Canada, Norway) , "US 
– Supercalendered Paper " (Canada), "United  States  – Conditional Tax Incentives for Large Civil Aircraft ", "Canada 
– Wine" (Australia), "US – Steel and Aluminum Products " (EU), "US – Steel and  Aluminum Products " (Canada), 
"US – Steel and Aluminum Products " (Norway), and "US – Steel and Aluminum Products " (Switzerland).  
17 See, e.g. , "US/Canada – Continued Suspension ", "EC – Bananas III " (Article 21.5 – Ecuador II) / "EC – 
Bananas " III (Article 21 .5 – US), "EC – Seal Products " (Canada, Norway), "Australia – Apples " (NZ), "US – 
Zeroing " (Japan) (Article 21.5 – Japan), "US – Zeroing " (EC) (Article 21.5 – EC), "US – Continued Zeroing ", "EC 
and certain member States – Large Civil Aircraft ", "US – Large  Civil Aircraft " (2nd complaint) , "EC and certain 
member States – Large Civil Aircraft " (Article 21.5 – US), "US – Measures Affecting Trade in Large Civil Aircraft " 
(Article 21.5 – EU), "US – Supercalendered Paper " (Canada), and "United  States  – Conditional Tax Incentives 
for Large Civil Aircraft ". 
18 "EC – Large Civil Aircraft " (22.6 – EU), "US – Large Civil Aircraft " (22.6 – US), "US – Zeroing " (EC) 
(22.6 – US), "US – COOL " (Mexico) (22.6 – US), "US – COOL " (Canada) (22.6 – US), and "US – Tuna II " (22.6 
– US). 
19 See, e.g., "EC – Bananas III " (Article 21.5 – US) (DS27), "US – Continued Zeroing " (DS350), "US – 
Zeroing " (EC) (Article 21.5 – EC) (DS294), "EC – IT Products " (DS375), "US – Continued Suspension " (DS320), 
"EC and certain member States – Large Civil Aircraft " (DS316), "EC and certain member States – Large Civil 
Aircraft " (Article 21.5 – US) (DS316), "EC and certain member States – Large Civil Aircraft " (Article 21.5 II – 
EU) (DS316), "EC and certain member States – Large Civil Aircraft " (Article 22.6 – EU) (DS316), "US – Large 
Civil Aircraft " (2nd complaint) (DS353), "US – Large Civil Aircraft " (2nd complaint) (Article 21.5 – EU) (DS353), 
"US – Large Civil Aircraft " (2nd complaint) (Article 22.6 – EU) (DS353), "Unite d States  — Conditional Tax 
Incentives for Large Civil Aircraft " (DS487), "United  States  – Steel and Aluminum Products " (EU) (DS548), and 
"EU – Additional Duties " (US) (DS559).  
20 See, e.g., "US – COOL " (DS384), "US – COOL " (Article 21.5 – Canada) (DS384), "US – COOL " (Article 
22.6 – US) (DS384), "US/Canada – Continued Suspension " (DS320/DS321), "US – Supercalendered Paper " 
(DS505), "US – Lumber AD " (DS534), "US – Lumber CVD " (DS533), "US – Steel and Aluminum Products " 
(DS550), and "Canada – Additional Duties " (US) (DS557).  WT/DSB/M/431  
 
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  (Chinese Taipei) (DS377), "Canada – Renewable Energy / Feed -In Tariff Program " (EU, Japan) 
(DS412/DS426), and "Canada – Wine" (Australia), and the panel meetings and appellate hearings 
in "Australia – Apples " (New Zealand) (DS367) and "EC – Seal Products " (Canada, Norway) 
(DS400/DS401). With respect to the open meetings and hearings that ha d taken place, the 
experience ha d been entirely successful. The United  States  was not aware of any incidents of 
improper behaviour  by observing members of the public, and the presence of public observers d id 
not appear to have affected the professionalism with which parties, third parties, and adjudicators 
had traditionally conducted themselves. While this observation normally occur red via transmission 
to a viewing room, this ha d been true even in instances in which the public ha d been allowed to 
observe from the same room in which the meeting had been  taking place. Nor ha d the passive 
observation of meetings by members of the public interfered with the intergovernmental nature of 
the WTO, the government -to-government nature of dispute settlement, or the ability of parties to 
settle a dispute thr ough the negotiation of a mutually agreed solution. Attendance at open panel 
meetings ha d varied, but one would expect this given that not all disputes w ould be of equal interest 
or of interest to the same persons. Moreover, the important point was that th e benefits from having 
open meetings ar ose regardless of actual attendance. This was because the mere possibility of 
attending a meeting help ed to ensure confidence in the system and that the system ha d nothing to 
hide. In short, any concerns expressed wit h regard to open meetings ha d not come to pass. Instead, 
open meetings ha d served to promote transparency and confidence in the WTO dispute settlement 
system, had increase d familiarity with the objective, professional manner in which hearings were 
conducte d, and had consequently provide d potential benefits for the implementation of any resulting 
recommendations by the D SB. 
4.9.  Second, due to opposition by  some Members, including certain major users of the WTO dispute 
settlement system, closed meetings and non-public submissions unfortunately remain ed the general 
rule, not the exception . The United States said that d espite the benefits that greater transparency 
would bring to the WTO and its dispute settlement system, for too long, too many Membe rs that 
claim ed to support the multilateral trading system actively undermine d it by promoting a lack of 
transparency in WTO dispute settlement. If the only WTO disputes were between supporters of open 
meetings, the WTO would have a very transparent disput e settlement process. But such disputes 
represent ed the small minority of disputes. Ironically, it was some of the most frequent users of the 
system, that ha d actively opposed requests for public meetings and ha d not made their submissions 
public. For exam ple: (i) the United  States  had proposed open meetings in at least 17 disputes with 
China, but China ha d always declined ; (ii) the United  States  had proposed open meetings in at least 
nine disputes with India, but India ha d always declined ; (iii) the United  States  had proposed open 
meetings in at least six disputes with Korea, but Korea ha d always declined ; (iv) the United  States  
had proposed open meetings in at least three disputes with Indonesia, but Indonesia ha d always 
decline d; (v) the United  States had proposed open meetings in at least three disputes with Turkey, 
but Turkey ha d always declined ; and (vi) the United  States  had proposed open meeting in at least 
nine disputes with Mexico, and Mexico ha d declined, except for in a joint dispute with Ca nada.  The 
United  States  had also requested open meetings in disputes with Brazil and Russia, and each of 
those Members ha d declined. These Members represent ed some of the most frequent users of the 
system they all profess ed to support. Their opposition to open meetings and greater transparency 
in WTO dispute settlement was misguided and only serve d to further erode support for the system. 
And what was worse, these Members consistently object ed to a request by a Member, such as the 
United  States , that wishe d to make its own statements publicly available at the time they were 
spoken. It would be understandable, if misguided, for them to seek to keep their own statements 
confidential. But there was no basis in the DSU or in logic for the assertion that they should have 
the ability to keep US statements of its own position confidential, against  US wishes. Regrettably, 
certain panels ha d acquiesced in those efforts. The United  States  highly regret ted those decisions, 
which were not required by the DSU and undermine d the legitimacy of the dispute settlement 
mechanism. The positions of these non -transparent Members were not required by the "state-to-
state" or intergovernmental nature of WTO dispute settlement. As the United States would  discuss 
shortly,  many WTO Members, including these Members, participate d in other state -to-state 
adjudicatory systems and provide d for open hearings and public submissions. The positions of these 
non-transparent Members were also not required by the subject matter. There was nothing in the 
subject matter of the WTO agreements that inherently require d confidentiality, unless specifically 
provided for. And the fact that the most frequent users of the dispute settlement system, the 
United  States  and the European Union, both s ought  to have all of their disputes publicly observed 
demonstrate d there was nothing in the subject matter of the WTO agreements that had to  be kept 
confidential. The positions of these non -transparent Members were also not required by an alleged 
"sensitivity " of disputes. First, the argument ma de no sense at all where such a Member was 
challenging a measure of the United  States . Second, as the United States would discuss later in its WT/DSB/M/431  
 
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  statement , other intergovernmental fora ha d dealt with issues that were intergo vernmental in nature 
and were at least as sensitive as those involved in WTO disputes. Third, if a dispute truly concerned 
a sensitive issue, that was all the more reason that the public should have a full opportunity to 
observe the dispute settlement proc ess. And, as the United  States  and European Union ha d 
demonstrated in the context of the aircraft disputes, sensitive commercial information c ould be 
protected while also providing for open hearings and public submissions.  
4.10.   Third, the United  States  and several other Members made their submissions public, but many 
Members did not. The United States said that ensuring that all Members and the public ha d access 
to the parties ' submissions in dispute settlement proceedings was a key component of maintai ning 
support for the dispute settlement system. As discussed, there was no DSU impediment to making 
one's own submissions public (or publicly available). The United States made public its submissions 
for all disputes in which it was a party or third -party.  The United States  underst ood that, like the 
United  States , other Members such as the European Union and Australia post ed their submissions 
online. Unfortunately, too many Members, including significant users and beneficiaries of the system 
– such as, Chin a, India, Indonesia, Korea, Mexico, Russia, and Vietnam, for example – insisted on 
maintaining their submissions as confidential. The United  States  did not disagree that these 
Members ha d the right to do so. This was explicitly provided for in Article 18.2  of the DSU . However, 
the United States  question ed why they ha d taken that decision and how they th ought  this could 
contribute to the legitimacy of (and, ultimately, the viability of) the system that they profess ed to 
support. For example, the United States  underst ood that these Members access ed US submissions 
that ha d been made public in past disputes. Cert ain of these Members ha d cited to those US 
submissions in their own arguments. The United States  consider ed that to be positive because each 
Member should be accountable for its views and be able to explain how a position it currently was 
espousing relate d to a position it ha d taken in another dispute. And the United States  also consider ed 
that it help ed WTO adjudicators to come to better reasoned decisions to consider how the view of a 
Member m ight or might not have changed, and whether its position as a l itigant m ight have affected 
its interpretive views. But if it was a good quality of WTO dispute settlement to be able to hold the 
United  States  accountable for its views, it equally had to be the case that it was good for WTO 
dispute settlement to be able to hold every other WTO Member accountable for its views. Put 
differently, the United States  could not see a basis for China, or India, or Korea, or Russia, or Mexico, 
or Vietnam, or Indonesia, or any other Member to consider that it should not also be hel d accountable 
for its views as expressed in on -going and past disputes. A Member that ke pt its submissions 
confidential deprive d the WTO dispute settlement system of important benefits. That a Member 
chose to keep its submissions confidential naturally c ould raise concerns about the extent to which 
it was willing to explain its views, both domestically and internationally. That is, the question was 
raised whether that Member was taking views that d id not correspond to other views it ha d taken, 
or that ha d not been fully considered internally. Such concerns about the nature of positions being 
taken by non -transparent Members also d id not contribute to the legitimacy of the dispute settlement 
system.  
4.11.   With regard to the issue that Members ' positions in other fora illustrate Members did n ot 
object to transparency in principle , the United States said that o pposition to greater transparency 
was contrary to the choices Members ha d made in other fora, including other international 
adjudicatory sys tems and regional free trade agreements. This highlight ed that most Members d id 
not object to transparency in principle. A number of international dispute settlement fora and 
tribunals were (or had been ) open to the public, such as the International Court of Justice,21 the 
International Tribunal for the Law of the Sea,22 the International Criminal Tribunal for the former 
Yugoslavia,23 the International Criminal Tribunal for Rwanda,24 the European Court of Human 
Rights,25 the African Court on Human and Peoples ' Rights,26 and the Inter -American Court of Human 
                                                
21 Statute of the International Court of Justice, Article 46 ( "The hearing in Court shall be public, unless 
the Court shall decide otherwise, or unless the parties demand that the public be not admitted); Article 59, Rules 
of Court.  
22 Statut e of the International Tribunal for the Law of the Sea, Article 26.2 ( "The hearing shall be public, 
unless the Tribunal decides otherwise or unless the parties demand that the public be not admitted); Article 74, 
Rules of the Tribunal.  
23 Rule 78, Rules of Procedure and Evidence.  
24 Rule 78, Rules of Procedure and Evidence.  
25 Rule 33, Chapter 1, Title II, Rules of Court.  
26 Article 10, on the Establishment of an African Court of Human and Peoples ' Rights, Protocol to the 
African Charter on Human and Peoples ' Rights. Rules of Court, Rule 43 ( "Public Hearings ") ("1. Cases shall be 
heard in open court.  2. However, the Court may, of its own accord or at the request of a party, hold its hearings 
in came ra if, in its opinion, it is in the interest of public morality, safety or public order to do so. 3. Whenever 
the Court orders that any proceedings shall not be conducted in public, the Court shall give one or more of the WT/DSB/M/431  
 
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  Rights.27 These fora deal t with issues that were intergovernmental in nature and were at least as 
sensitive as those involved in WTO disputes. For example, these fora ha d addressed boundary 
disputes, use of forc e, nuclear weapons, human rights violations, and genocide. There were at least 
two key conclusions to be drawn from these comparisons. First, a comparison of WTO dispute 
settlement to other international dispute settlement fora reveal ed that the WTO, with perhaps the 
most active dispute settlement system, was one of the least transparent dispute settlement systems. 
Second, Members ' participation in these other more transparent fora demonstrate d that Members 
did not object in principle to greater transparenc y. Rather, they recognize d the benefits it br ought  
to these institutions. These same conclusions c ould be drawn from an examination of Members ' 
participation in regional free trade agreements. At least 40 regional free trade agreements, involving 
more than 75 WTO Members, require d transparency – be it through public submissions, open 
hearings, or both. Members involved in such agreements include d: Argentina, Armenia, Australia, 
Bahrain, Botswana, Brazil, Brunei, Canada, Chile, Colombia, Costa Rica, Ecuador, El Salvador, 
Eswatini, the European Union, Georgia, Guatemala, Honduras, Hong Kong , China ; Iceland, Israel, 
Japan, Jordan, Korea, Lesotho, Lie chtenstein, Malaysia, Mexico, Moldova, Montenegro, Morocco, 
Mozambique, Namibia, New Zealand, Nicaragua, Norway, Oman, Panama, Paraguay, Peru, 
Singapore, South Africa, Switzerland, Ukraine, Uruguay, the United  States , and Vietnam. Again, 
Members ' participa tion in regional free trade agreements requiring transparency underscore d that 
the WTO lag ged behind other fora, and a significant number of WTO Members d id not in principle 
oppose transparency. The United States noted that this list also include d some Mem bers, like Brazil, 
Korea, Mexico, and Vietnam that ha d objected to open meetings in disputes with the United  States . 
It was difficult to reconcile those Members ' support for transparency in other fora, including regional 
free trade agreements, while opposi ng transparency in WTO dispute settlement. Why should WTO 
dispute settlement be any less transparent than these other fora in which Members participate d? 
Why would Members encourage the perception that WTO dispute settlement ha d something to hide?  
4.12.   With re gard to the issue that i ncreased transparency enhance d Members ' Understanding of 
the WTO dispute settlement , the United States said that t he benefits of increased transparency in 
WTO dispute settlement were numerous. Increased transparency, through open me etings and public 
submissions, was essential if the results of WTO dispute settlement were to enjoy legitimacy. 
Another benefit was that open and transparent WTO dispute settlement proceedings enhance d WTO 
Members ' understanding of the dispute settlement s ystem. This was particularly true for those who 
did not participate often in the system. The United  States  also note d that third parties in some 
disputes ha d requested additional rights, often requesting to attend the entirety of panel meetings 
and to receive all submissions. To be clear, the United  States  consider ed that a panel c ould not grant 
additional "rights " without the agreement of the parties to a dis pute. However, where the parties to 
a dispute agree d to open their meetings to all WTO Members and the public, and they ma de their 
submissions publicly available, third -parties (as well as all WTO Members and the public) would have 
the ability to observe a ll panel meetings and receive all submissions. The United States  therefore 
found it ironic that some Members ha d opposed opening panel meetings to the public, while 
simultaneously requesting panels to provide them with additional third -party rights. In mak ing such 
requests, those Members recognize d that there was value in transparency and in seeing the parties ' 
arguments at the time they were made. But in opposing the opening of meetings to other Members 
and the public, those Members ha d sought to obtain th e benefit of greater transparency solely for 
themselves, while denying it to other Members and the public. The apparent position of these 
Members that the benefits of improved transparency should be limited to only a few Members was 
simply untenable. On a related and final note before concluding, the United  States  recall ed that 
some Members in the past ha d suggested that opening meetings and making submissions available 
to all WTO Members, but not the public, would be a positive incremental step towards gre ater 
transparency. The United  States  seriously disagree d. Not only was there no basis in the DSU to 
restrict the ability of any WTO Member to make public statements of its own position – the operative 
word being "public ", not "restricted " – but such an app roach would only serve to reinforce 
perceptions about the lack of transparency in WTO dispute settlement, thereby further undermining 
its support.  
4.13.   In conclusion , with regard to the issue that i f Members claimed to support the WTO dispute 
settlement system, they should take all steps now to provide for a transparent dispute settlement 
system , the United States said that m any Members claim ed to want to reform and keep relevant the 
WTO, and the United States  had seen some proposals brought for ward to enhance transparency and 
                                                
reasons specified in sub -rule 2 of  this Rule as the basis of its decision. The parties or their legal representatives 
shall be permitted to be present and heard in camera ). 
27 Statute of the Inter -American Court of Human Rights, Article 24(1) ( "The hearings shall be public, 
unless the Court , in exceptional circumstances, decides otherwise).   WT/DSB/M/431  
 
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  notifications. But the actions of too many Members ha d stymied transparency in WTO dispute 
settlement for far too long. As reviewed in this statement, the lack of transparency in WTO dispute 
settlement was not required by t he DSU and Members c ould not defend the lack of transparency on 
this basis. To the contrary, whether the WTO ha d an open and transparent dispute settlement system 
depend ed, to a great extent, on the willingness of Members to support such a system. The Unit ed 
States  had also highlighted that Members ' participation in other fora illustrate d Members d id not 
object to transparency in international adjudicatory systems and trade agreements in principle. 
Thus, there was no impediment to Members taking action now to address this lack of transparency 
in WTO dispute settlement. It was long overdue for Members to agree to open all substantive dispute 
settlement meetings to observation by all Members and the public while protecting confidential 
information. Each Member  should immediately take steps in each dispute in which it was 
participating to request to make its statements publicly observable and to make its written 
submissions publicly available.  
4.14.   The representative of  the European Union  said that t he EU thank ed the United  States  for 
raising this important matter and support ed the proposals to enhance transparency in dispute 
settlement proceedings. The EU was strongly committed to ensuring trade policy was transparent in 
order to enhance legitimacy and public tru st. Against that background, the EU ha d been advocating 
for increased transparency in WTO dispute settlement, including by making open meetings a general 
rule and by making party submissions public. The EU had  supported proposals to this effect also in 
the on-going process of DSU review. The EU w ished  to underline the importance of transparency in 
dispute settlement  proceedings from a systemic perspective. The WTO dispute settlement as it 
currently operate d had nothing to hide, so an increased transparency could only increase its 
legitimacy with the public and reduce the space for misrepresentation. The EU  urged WTO Members 
to adopt practices of increased transparency that were possible under the DSU. The EU recall ed that 
the "Additional Practices and Proced ures in the Conduct of WTO Disputes – Transparency of Dispute 
Proceedings" under the Mechanism for Developing, Documenting and Sharing Practices and 
Procedures in the Conduct of WTO Disputes  contained in document JOB/DSB/1/Add.3 was one 
existing concrete i nitiative to foster transparency. The EU  also look ed forward to continuing 
discussions in relevant WTO fora on further proposals with increased transparency in mind. Of 
course, transparency in dispute settlement proceedings presuppose d a functioning disput e 
settlement system. The EU, therefore , also reiterate d its call on all Members to fill the outstanding 
vacancies on the Appellate Body as soon as possible.  
4.15.   The representative of Canada  said that Canada thank ed the United  States  for raising this 
important matter. Canada was a strong supporter of transparency in the functioning of the 
WTO dispute settlement system, including open hearings. Canada believed that transparency 
contribute d to increase the legitimacy of the system as a whole. Canada  recall ed that it had been  a 
party in the first dispute in which the Appellate Body had decided  to hold an open hearing, a decision 
that Canada had advocated for, along with the other disputing parties. Concrete initiatives at the 
WTO already existed to foster transparency. In particular, Canada  wished to point out that there 
was a practice document on transparency under the Mechanism for Developing, Documenting and 
Sharing Practices and Procedures in the Conduct of WTO Disputes contained in do cument 
JOB/DSB/1/Add.3. Australia, the European Union, Norway and Canada ha d endorsed that document, 
which remain ed – as all practice documents – open for endorsement by Members. This initiative 
demonstrate d that further transparency c ould be achieved with out modifying the existing rules. 
Canada believed that there was no practical reason not to work towards increasing transparency. As 
such, Canada thank ed the United  States  for raising this important issue and encourage d all Members 
to embrace measures and practices to increase transparency.  
4.16.   The representative of  Japan  said that his country wished to  thank the United  States  for raising  
this important systemic issue , which concern ed all WTO Members. Japan note d that there was 
nothing in the text of the DSU, which would require the lack of transparency or absolute 
confidentiality in dispute settlement proce edings . As observed by the Appellate Body, "under the 
DSU, confidentiality is relative and time -bound ".28 Japan  recognize d that the interest in transparency 
needed to be balanced with other potentially competing interests, such as the protection of 
confidential information. Japan's  past experience had been positive in this respect. Japan  believe d 
that the issue of transparency was of tremendous i mportance for the legitimacy and integrity, as 
well as the fair and impartial administration, of the WTO dispute settlement system. Japan look ed 
forward to working with other WTO Members on this important matter.  
                                                
28 Appellate Body Reports, US/Canada – Continued Suspensions, Annex IV, para9.  WT/DSB/M/431  
 
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  4.17.   The representative of  Australia  said that her country  welcome d the US encouragement of 
Members to adopt practices that enhance d transparency and openness in WTO dispute settlement 
proceedings. Australia was a strong supporter of transparency in WTO dispute settlement. Australia  
publish ed all its party and third -party dispute submissions, advocate d for open hearings, and 
support ed enhanced third-party  rights. Most recently, in its dispute proceedings in "Canada – Wine 
(Australia) " dispute (DS537) , Australia and Canada had agreed to : (i) hold hearings that were open 
to the public;  (ii) make all their submissions to the Panel publicly available; and (iii) invite third 
parties to attend the entirety of both meetings with the Panel. As noted by Canada, Australia ha d 
also endorsed Canada 's practice documents that increase d transparency of dispute procedures and 
time-tabling. Australia believed that  enhanced transparency of dispute settlement proceedings – 
including through publishing submissions and holding hearings that were open to the public  – helped 
strengthen the system as a whole. All Members share d a responsibility to support and improve the 
efficient and effective operation of the WTO dispute settlement system and to increase legitimacy 
and public support for the system. Accordingly, Australia encourage d all Members to give positive 
consideration to the US call for greater openness and transparency in dispute settlement 
proceedings.  
4.18.   The representative of New Zealand  said that his country wished  to thank the United  States  
for placing this item on the Agenda  of the present meeting . New Zealand was a strong advocate for 
increased transparency throughout the WTO . In the dispute settlement context  – while New Zealand  
recogni zed the rights that the DSU provide d principal parties – New Z ealand  saw considerable value 
in hearings open to the public and publicly available submissions, with appropriate safeguards to 
protect, for instance, business confidential information. New Zealand itself  sought  such transparency 
in the dispute settlement provisions of its regional trade agreements. New Zealand  believe d that 
transparency in WTO dispute settlement help ed increase confidence in the rules -based multilateral 
trading system among their stakeholders, businesses and communities. It also help ed these 
stakeholders see the valuable asset that Members  had in the WTO dispute settlement system. New 
Zealand also believe d that increasing the ability for all WTO Members to access hearings and 
submissions, without having to join as third parties, w ould assist all Members to better engage with 
the dispute settlement system, increasing its accessibility. As mentioned by the representatives of 
Members who had spoken previous ly, considerable thought ha d been given to this issue in the past. 
In particular, New Zea land welcome d Canada and other Members highlighting the document 
"Additional Practices and Procedures in the Conduct of WTO Disputes – Transparency of Dispute 
Proceedings" under the Mechanism for Developing, Documenting and Sharing Practices and 
Procedures  in the Conduct of WTO Disputes  contained in document JOB/DSB/1/Add.3 – which New 
Zealand  consider ed to contain  some useful elements to inform discussions on enhancing 
transparency.  
4.19.   The representative of Norway  said that t ransparency and publicity were, generally, key 
components for securing the legitimacy of legal proceedings. Thus, Norway ha d been, and remain ed, 
a strong supporter of efforts to promote the transparency of procedures in WTO disputes, such as 
the "Additiona l Practices and Procedures in the Conduct of WTO Disputes – Transparency of Dispute 
Proceedings" under the Mechanism for Developing, Documenting and Sharing Practices and 
Procedures in the Conduct of WTO Disputes  contained in document JOB/DSB/1/Add.3 from 2016. 
Norway  wished  to underline the importance of supporting due process during challenging times for 
the dispute settlement system.  
4.20.   The representative of the Russian Federation  said that a s mentioned by the United  States , 
according to the DSU, panel s shall meet in closed sessions. After listening carefully to US concerns, 
her country  failed to understand why there should be a departure  from the rules agreed by Members. 
While not question ing the right of a party to make available its own position  to the public, Russia 
believe d that the DSU d idn't contain any provisions allowing a party to make its statement s and 
answers provided in the course of a panel meeting or appeal hearing available for the public. The 
DSU provide d clear rules in that regard . Any departure  from the rules provided therein and their 
applicability to  disputes could be permitted only in cases when there was an agreement between the  
parties to such disputes. One party to a dispute c ould not change procedures and rules  on its own . 
According to Article 14.1 of the DSU, panel deliberation s shall be confidential. According to Article 
12.1 of the DSU, panels shall follow the working procedures in Appendix 3 unless a panel decide d 
otherwise after having consult ed with the parties to a dispute. According to paragraph 2 of 
Appendix  3 of the DSU, panel s shall meet in closed session s. According to paragraph 3 of Appendix  3 
of the DSU, the deliberations of the panel and the documents submitted to each party shall be kept 
confidential. Therefor e, not only the deliberations of the panel and the documents submitted shall 
remain confidential, but also substantive panel meetings including any statements and WT/DSB/M/431  
 
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  announcements made by a panel, parties, or third  parties. A proper reading of the DSU provisi ons 
should secure a balance between a Member 's right to disclose statements of its own position to the 
public and this Member 's obligation to respect the confidentiality of other parties' or third parties' 
positions in the dispute. In this sense, the party who chose to disclose its statement to the public 
should do it in such a way as to refrain from unnecessar ily publicizing the arguments of the other 
party or parti es in a dispute. Although the DSU provide d the opportunity for a Member to express 
its position to the public, it d idn't expressly permit it to do so  during substantive meetings with the 
parties. As had been  mentioned previously , panel meetings were confidential. Therefore, there was 
no basis in t he DSU for granting a Member the  right to express its position to the public during panel 
meetings. On the contrary , the DSU  require d that Members ensure d the confidentiality of panel  
meetings, of deliberations of the panel,  of the time -table, and of  oral and written statements by 
parties  and third parties. As for the US reference to participation in several international  adjudicatory  
systems that provide d for open hearings , the Russian Federation w ished  to draw Members ' attention 
to the statutes  and rules of th ese international adjudicator y system s and invite d Members to 
compare them with the relevant rules of the WTO. The WTO proceedings were  closed. Russia  
believed  that it was better to pose the question to the U nited States, as one of the draf ters of the 
current rules, as to why they decide d to establish closed panel sessions and appellate hearings . In 
any case, the reality was that the current burning issue was not transparency but the continuing 
blockage of the AB selection processes  and the risk of not having an operational Appellate Body in 
December 2019. Soon, Members would  not have a proper dispute settlement system, whether 
transparent or non -transparent.  
4.21.   The representative of China  said that his country  noted that this Agenda item requested by 
the United  States  did not relate to any specific dispute , but was nevertheless listed as item 4 o n the 
Agenda  of the present meeting . He recall ed that China  had requested that an item of a similar nature 
be placed on the Agenda of  the 21 November 2018  DSB meeting . This item,  titled "Right of a Member 
to Decide the Composition of its Delegation for Consultations ", appeared  as the last Agenda item 
(item 24) of that meeting. China asked whether this  suggest ed that Agenda items raised by the 
United  States  were more important than those raised by other WTO Members . China  hoped the 
WTO Secretariat could review and correct its relevant practices. With regard to the matter at hand,  
China said that t he issue of transparenc y in dispute settlement ha d probably been among the most 
difficult and sensitive issues  during the DSU negotiations.  China recall ed that  many Members in 
previous DSB Special Sessions ha d fully elaborated their legitimate concerns on proposals regarding 
open hearings, amicus curiae , publication of submissions, etc. Thus far, relevant proponents ha d not 
come up with any effective solution to address the concerns  raised . At the present meeting, China 
had listened carefully to the statement made by the United  States  but ha d yet to be convinced of 
the necessity and practica lity of approach ing this highly controversial issue or even of accord ing it 
priority under the current circumstance s. The United  States  had only been able to find a few cases 
with public hearings, which indicate d that  the majority of Members could not agree to such a 
proposal . And it also show ed that the United  States  simply  ignore d the significant  divergence 
between developed and developing -country Members on this issue. First, the WTO dispute 
settlement was intergovernmental in nature. Article 18.2 of the DSU provide d that: "[w]ritten 
submissions to the panel or the Appellate Body shall be treated  as confidential ". And paragraph s 2 
and 3 of Appendix 3 provide d that: "[t]he panel shall meet in closed session "; and that  "[t]he 
deliberation of the panel and documents submitted to it shall be kept confidential ". Article 17.10 of 
the DSU prescribe d that: "[t]he proceedings of the Appellate Body shall be confidential ". These 
articles explicitly require d that submissions of parties and relevant proceeding meetings be kept 
closed and confidential. China believed that  these DSU provisions were unequivoc al and 
fundamental. One could not interpret these plain -language provisions so as to make them mean the 
opposite. Therefore, neither a panel nor the Appellate Body ha d the discretion to decide whether a 
meeting should  be open or not. Second, proposals on s o-called enhanced transparency c ame with 
serious side effects that should not be overlooked by Members. Confidentiality play ed a critical role 
for the efficiency and effectiveness of substantive meetings. The presence of the public would  
inevitably di vert the focus of adjudicators from the substance to the optics of how arguments or 
presentations might appear to outsiders. Disputing parties could  also find it harder to reach a 
mutually satisfactory solution when the private diplomatic environment beg an to fade away. The 
parties and the respective Secretariats would also bear a greater  burden in ensur ing the proper 
handl ing of confidential information during open hearings. In addition, excessive transparency 
requirements also pose d unique challenges to m any developing -country Members. When compared 
to their counterparts in developed -country Members, non-governmental organizations ( NGOs ) of 
developing -country Members ha d capacity constraints in participating and expressing concerns in 
dispute settlement pr oceedings. Permitting amicus curiae  would inevitably place developing country 
Members in a more disadvantaged position during dispute settlement proceedings. Furthermore, the WT/DSB/M/431  
 
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  practice of other international tribunals with respect to  transparency m ight not fit into the particular 
situation of the WTO. Each tribunal operate d pursuant to its own authorizing treaty. When c omparing 
the WTO with its counterparts, WTO adjudicators were bound by much more stringent time -frames. 
Article 12.9, Article 17.5, Article 2 1.5 and Article 22.6 of the DSU respectively set out explicit 
deadlines for panel, appellate and arbitration proceedings. While Members , including the 
United  States , were insisting that  the Appellate Body comply with strict time -frames, loading 
WTO adjudicators with additional burdens of transparency , which would adversely affect their abilit y 
to comply with deadlines , seem ed to be a counterproductive proposal . In contrast, China  believe d 
the existing rules and practices were adequate to ensure the t ransparency and public understanding 
of the dispute settlement system. For example, Article 18.2 of the DSU did not preclude a disputing 
party from disclosing statements of its position s, including those contained in its oral statements at 
a panel  meeting  or appellate hearing , to the public. Records of prior d iscussions  and the discussions 
at the present meeting  reaffirm ed the fact that the unnecessary transparency elements in dispute 
settlement were not supported by many Members. When the dispute settlemen t system was facing 
unprecedented risk due to the still on -going Appellate Body blockage crisis, the priority had to  be 
accorded to discussions on how best to save the drowning Appellate Body without further delay. In 
the end, there would be no meeting to be opened to the public if the United  States  continue d to 
block the system.  
4.22.   The representative of India said that his country took  note of the statement made by the 
United  States  under this Agenda item . At the outset , India wished to  make it clear that the existing 
provisions contained in the DSU and the rules followed by panels and the Appellate Body on 
transparency were sufficient and appropriate. The WTO dispute settlement system  had originally 
been conceived to be a diplomatic gov ernment –to-government process, with some elements of 
public involvement for the efficient settlement of disputes. The main objective of the dispute 
settlement system was to resolve disputes among Members by preferring a solution mutually 
acceptable to disputing parties without invoking the dispute settlement procedures of the DSU. There 
were concerns that  fully open panel and Appellate Body proceedings could lead to trial by media and 
could eventually  place unwarranted  public pressure on panelist s or Appellate Body members. This 
situation w ould jeopardize  the interest s of developing countries and LDCs which  had resource and 
capacity constraints in relation to  the dispute settlement system. India also wished  to clarify that its 
position on transparency had been consistent, both at the WTO and in its trade agreements. At 
present, the WTO  dispute settlement sys tem was facing an existential crisis of grievous  concern as 
the Appellate Body w ould be paralyzed by December 2019. India believe d that an independent, 
two-stage dispute settlement system was imperative for the fair enforcement of the rules of 
international trade. The impending paralysis and possible disappearance  of the Appellate Body w ould 
be a fatal blow to the credibility of the WTO. Therefore, an expeditious resolution of the Appellate 
Body crisis need ed to be at the top of the agenda , and discussion s on any other issue would divert 
the attention of Members. Further, the issue of transparency was one of the twelve issues under 
negotiation in the DSB special session. India asked that Members let  the DSB special session first 
negotiate and come out with a final, agreeable  text on transparency, acceptable to all Members. 
Therefore,  India urged all Members to first initiate the AB selection process es and not be diverted to 
other issues that were not important at this point in time .  
4.23.   The DSB took note of the statements.  
5  UNITED  STATES  – SAFEGUARD MEASURE  ON IMPORTS OF CRYST ALLINE SILICON 
PHOTOVOLTAIC PRODUCT S 
A. Request for the establishment of a Panel by China (WT/DS562/8)  
5.1.  The Chairman  drew attention to the communication from China contained in document 
WT/DS562/8 . He then  invite d the representative of China to speak.  
5.2.  The representative of  China  said that his country  request ed that the DSB establish a Panel with 
standard terms of reference to examine the matt er referred to in document WT/DS562/8. China had 
requested consultations to the United  States  in this matter on 14 August 2018. China had engaged 
in good faith talks with the United  States  on 22 October 2018 with a view to finding a mutually 
satisfactory s olution. Unfortunately, those consultations had failed to resolve the matter. After 
reflecting on this matter, China had decided to request the establishment of a panel on 11 July 2019. 
This matter concern ed the imposition of a definitive safeguard measure  by the United  States  on 
imports of certain crystalline silicon photovoltaic cells, whether partially or fully assembled into other 
products. These products include d modules, laminates, panels, and building -integrated materials. WT/DSB/M/431  
 
- 25 - 
 
  The definitive measure had been adopted pursuant to Proclamation 9693 of 23 January 2018. The 
measure had taken  the form of a tariff -rate quota on imports of solar cells for a period of 4 years, 
with unchanging in -quota quantities and annual reductions in rates of duty applicable fo r the second, 
third and four th years. The duty rate for the first year had been  set at the level of 30%. The US 
measure violate d the core principles of the WTO disciplining the proper use of safeguard measures. 
It had failed to provide a reasoned and adequate explanation of any of the essential conditions that 
could justify the imposition of a safeguard measure as laid down in Arti cle XIX of the GATT 1994 and 
various provisions of the Agreement on Safeguards, including an unforeseen increase in imports, 
serious injury to the domestic industry causally linked to the increase in imports, and the 
non-attribution of injury caused by fac tors other  than those increased imports. As Members were 
aware, this was not the first challenge against US safeguard measures. There ha d been several prior 
challenges to US safeguard measures that had led to findings that  these measures had been 
WTO-incon sistent. And this was not the first challenge to these specific safeguard measures. On 14 
August 2018, Korea had submitted a similar panel request following unsuccessful consultations with 
the United  States . The DSB had established a Panel at its 26 Septem ber 2018 meeting and those 
proceedings were on -going. China was firmly convinced that a panel w ould find that the measures 
imposed by the United  States  were impermissible under both the GATT and the Agreement on 
Safeguards. It was important to bear in mind  that safeguard measures constitute d emergency 
protection against imports, an extraordinary action that should rarely be taken. A WTO -inconsistent 
safeguard measure was a serious problem for the trading system. Such a measure negatively 
affect ed the rights  of other Members who ha d their trade flows improperly restricted and affected 
by the safeguard measure. And such a measure undermine d the predictability and certainty that the 
multilateral trading system s ought  to provide to all trading countries. China therefore request ed that 
the DSB establish a panel with standard terms of reference.  
5.3.  The representative of  the United  States  said that t he WTO Agreement  recognize d the right of 
Members to temporarily suspend conc essions and other obligations in order to take a safeguard 
action when a product was being imported into its territory in such increased quantities and under 
such conditions as to cause serious injury or threat of serious injury to the Member 's domestic 
industry. The United  States  had exercised this right with respect to imports of crystalline silicon 
photovoltaic (CSPV) products and had imposed such a safeguard action. An independent 
investigative authority, the US International Trade Commission, had deter mined that the domestic 
industry producing like or similar products had been  seriously injured and that the cause of that 
injury had been  increased imports of the products at issue. The US process had been  open and 
transparent, and fully in accord with bot h US domestic safeguard law and WTO obligations. The 
United  States  also note d that China 's request to establish a panel improperly include d a claim not 
referenced in China 's request for consultations. For these reasons, the United  States  was not in a 
position to agree to the establishment of a panel at the present meeting .  
5.4.  The DSB took note of the statements and agree d to revert to this matter.  
6  INDIA – MEASURES CON CERNING SUGAR AND SU GARCANE  
A. Request for the establishment of a Panel by Br azil (WT/DS579/7)  
 
B. Request for the establishment of a Panel by Australia (WT/DS580/7)  
 
C. Request for the establishment of a panel by Guatemala (WT/DS581/8)  
 
6.1.  The Chairman  proposed that three panel requests under this Agenda item be considered 
separately.  
A. Request for the establishment of a Panel by Brazil (WT/DS579/7)  
6.2.  The Chairman  drew attention to the communication from Brazil contained in document 
WT/DS579/7 . He then  invited the representative of Brazil to speak.  
6.3.  The representative of Brazil  said that his country  request ed that the DSB establish a panel at 
the present meeting  with standard terms of reference in order to examine India 's measures on sugar 
and sugarcane. B razil believe d that the Indian government provide d support exceeding the levels of 
domestic support allowed to India under  the Agreement on Agriculture  and also grant ed export 
subsidies prohibited by th at Agreement.  In recent years, India had intensified its support measures 
for the sugar sector. For instance, since 2010 -2011, the Indian government ha d practically doubled WT/DSB/M/431  
 
- 26 - 
 
  the minimum price for sugar cane and, from 2017 -2018 to 2018 -2019, had increased its mandatory 
export quota from 2 to 5 million tonnes of sugar. For Brazil, these measures depreciate d the 
international price of sugar and harm ed Brazilian exporters. The fact that Australia and Guatemala 
were also requesting a panel at the present  meeting show ed the extent to which the Indian policie s 
were negatively impacting the international sugar market. Brazil hope d that following these panel 
requests, India w ould make every effort to bring its measures into conformity with its 
WTO obligations, in order to re -establish fair conditions of competit ion in that market. Brazil 
request ed that a single panel be established in accordance with Article 9.1 of the DSU to examine 
the complaints of Australia, Brazil and Guatemala. This was the most efficient course of action both 
in terms of coherence and cert ainty of the decision. It was also the best use of WTO resources.  
6.4.  The representative of India said that his country  wished to express its disappointment with 
Brazil's decision to request the establishment of a panel on India's measures concerning sugar and  
sugarcane  at the present meeting . India believe d that consultations held with Brazil on 15 April 2019 
had been  constructive. During these consultations, India had proactively explained its measures 
concerning sugar and sugarcane in good faith. Notably, In dia had demonstrated that Brazil's exports 
of sugar and related products to India ha d been increasing in recent years. Further, India had stated 
that it ha d a negligible share in the global sugar trade as compared to Brazil which account ed for 
almost 42% o f the global sugar trade. India had also offered to continue to engage in bilateral 
discussions to address any concerns that Brazil m ight have. India also wished  to clarify that India's 
measures were aimed at preventing exploitation of over 35 million vuln erable "low -income 
resource -poor" farmers and to enable them to have a just and equitable share in economic 
development – a goal that all Member s had solemnly t aken upon themselves during the Uruguay 
Round and that they had reaffirmed with the Doha Ministerial Declaration. At this point, India 
reiterate d that the measures identified by Brazil in its request for the establishment of a panel d id 
not violate India's obligations under the Agreement on Agriculture.  These measures neither h ad any 
trade -distorting effect on global sugar trade nor d id they adversely affect Brazil's commercial 
interests. In fact, these measures ha d resulted in raising the domestic prices of sugar within India , 
thereby making imports of sugar into India more lucrative and makin g exports from India 
uneconomical. Therefore, in relation to  Article 3.7 of the DSU, India believed that Brazil could have 
exercised its judgement as to whether its actions would be fruitful. India was rather surprised that 
despite India's explanation of t he challenged measures in good faith and its offer for continuous 
bilateral engagement to resolve any issues, Brazil ha d instead chosen to request the establishment 
of a panel which w ould put a strain on the already thin and scarce resources of the  DSB. For these 
reasons, India was not in a position to accept the establishment of a panel at the present meeting.  
6.5.  The DSB took note of the statements and agree d to revert to this matter.  
B. Request for the establishment of a Panel by Australia (WT/DS580/7)  
6.6.  The Chairman  drew attention to the communication from Australia contained in document 
WT/DS580/7 . He then  invite d the representative of Australia to speak.  
6.7.  The representative of Australia  said that her country  request ed that the DSB establish a panel 
with standard terms of reference to examine India 's measures concerning sugar and sugarcane. 
Australia had requested consultations with India in this matter on 1  March 2019 and consultations 
had taken  place on 16 April 2019. Unfortunatel y, those consultations  had failed to resolve the matter. 
India maintain ed a series of measures that support ed its domestic producers of sugar and sugarcane. 
These measures comprise d domestic support, including price support, and export subsidies. 
Australia  consider ed that these measures were inconsistent with India 's obligations under the 
Agreement on Agriculture and the SCM Agreement relating to domestic support commitments and 
export subsidies. Australia also consider ed that India ha d failed to comply wit h its obligations to 
notify Members of its domestic support and export subsidies for sugar and sugarcane under the 
Agreement on Agriculture , the SCM Agreement and the GATT  1994. The global sugar market was 
currently experiencing significant oversupply. Aus tralia, along with Brazil and Guatemala, was 
seriously concerned that a major contributing factor ha d been the overproduction of highly 
subsidi zed sugar in India: Indian production had increased from 22 million tonnes in 2016 -17 to 
34 million tonnes in 2017-18, leaving a surplus of more than 12 million tonnes. This, combined with 
expected production of 35.9 million tonnes in 2018 -19, ha d kept downward pressure on the global 
sugar price. The global price had hit a decade low in September 2018 following In dia's announcement 
of an additional one billion Australian dollars in sugar subsidies that month. India ha d also mandated 
the export of five million tonnes of sugar in 2018 -2019 and provide d subsidies that were contingent 
on export performance in order to achieve this target. Australia value d its strong political, economic WT/DSB/M/431  
 
- 27 - 
 
  and community ties with India, and remain ed open to further discussions with a view to resolving 
this matter. However, as India ha d taken no concrete steps to date to respond to Australia 's 
long-standing concerns, Australia was now compelled to request the establishment of a panel to 
examine the matter. Australia note d that Brazil and Guatemala share d Australia 's concerns, and also 
request ed that the D SB establish a panel in relation to th e same matter. Australia request ed that a 
single panel be established in accordance with Article 9.1 of the DSU to examine the complaints of 
Australia, Brazil and Guatemala. This would enable this matter to be dealt with in the most efficient 
way at a time  when the resources of the WTO were constrained, and would promote a consistent, 
clear and certain resolution of the dispute.  
6.8.  The representative of India said that his country  was disappointed with Australia's decision to 
decision to request the establish ment of a panel on India's measures concerning sugar 
and sugarcane  at the present meeting . India believe d that consultations held with Australia on 
16 April 2019 had been  constructive. During these consultations, India had proactively explained its 
measures concerning sugar and sugarcane in good faith. Notably, India had demonstrated that the 
measures that were challenged in this  request for the establishment of a panel ha d no bearing on 
world sugar trade or Australia's ability to compete in the global trade of sugar. In fact, almost 98% 
of Australia's production of sugar was utilized towards exports and domestic demand with little 
headroom left for increasing exports any f urther. India had also offered to continue to engage in 
bilateral discussions to address any concerns that Australia m ight have. India also wished  to clarify 
that India's measures were aimed at preventing exploitation of over 35 million vulnerable 
"low-income resource -poor" farmers and to enable them to have a just and equitable share in 
economic development – a goal that all Member s had solemnly t aken upon themselves during the 
Uruguay Round and that they had reaffirmed with the Doha Ministerial Declaratio n. At this point, 
India reiterate d that the measures identified by Australia in its request for establishment of a panel 
did not violate India's obligations under the GATT 1994, the Agreement on Agriculture  and the SCM 
Agreement . Neither did these measures  have any trade -distorting effect on global sugar trade nor 
did they adversely affect Australia's commercial interests. In fact, these measures ha d resulted in 
raising the domestic prices of sugar within India thereby making imports of sugar into India mor e 
lucrative and making exports from India uneconomical. Therefore, in terms of Article 3.7 of the DSU, 
India believed that Australia could have exercised its judgement as to whether its actions would be 
fruitful. India was rather surprised that despite its explanation of the challenged measures in good 
faith and its offer for continuous bilateral engagement to resolve any issues, Australia ha d instead 
chosen to request  the establishment of a panel which w ould put a strain on the already thin and 
scarce reso urces of the D SB. For the se reasons, India was not in a position to accept the 
establishment of a panel at the present meeting.  
6.9.  The DSB took note of the statements and agree d to revert to this matter.  
C. Request for the establishment of a Panel by Guatemala (WT/DS581/8)  
6.10.   The Chairman  drew attention to the communication from Guatemala contained in document 
WT/DS581/8 . He then  invite d the representative of Guatemala to speak.  
6.11.   The representative of Guatemala  said that his country had  requested consultat ions with India 
in this matter on 15 March 2019. Consultations had been  held on 22 May 2019. These consultations, 
however, had failed to resolve the dispute. At the present meeting, Guatemala, therefore, request ed 
that the DSB establish a panel with standa rd terms of reference to examine India's measures 
concerning sugarcane and sugar as set out in  document WT/DS/581/8. To ensure the efficiency of 
the proceedings, Guatemala further request ed that, in accordance with Article 9.1 of the DSU, a 
single panel be  established to jointly examine the complaints of Guatemala, Australia and Brazil. 
Guatemala share d the concerns of Australia and Brazil. India's domestic support measures and 
export subsidies in favour of sugarcane and sugar producers encourage d farmers t o produce 
surpluses of sugar, and sugar mills to export those surpluses to the international market, depressing 
the price of sugar worldwide. These measures were seriously harming Guatemala's sugar industry. 
In addition, Guatemala consider ed that these mea sures were inconsistent with India's domestic 
support and export subsidy -related obligations under the Agreement on Agriculture  and the SCM 
Agreement. Notwithstanding Guatemala's request for the establishment of a panel, Guatemala 
remain ed open to discussi ng a possible mutually agreed solution with India that would address these 
concerns.  
6.12.   The representative of India said that his country  was disappointed with Guatemala's decision 
to request the establishment of a panel on India's measures concerning sugar and sugarcane  at the WT/DSB/M/431  
 
- 28 - 
 
  present meeting . India believe d that consultations held with Guatemala on 22 May 2019 had been  
constructive. During these consultations, India had proactively explained its measures concerning 
sugar and sugarcane in go od faith. Notably, India had demonstrated that the measures that were 
challenged in this  request for the establishment of a panel had no bearing on world sugar trade or 
Guatemala's ability to compete in the global trade of sugar. In fact, India had stated that not only 
its share of exports in global trade of sugar was negligible,  the meagre exports of sugar by India d id 
not compete with exports of sugar by Guatemala. India had also offered to continue to engage in 
bilateral discussions to address any concer ns that Guatemala m ight have. India also wished  to clarify 
that India's measures were aimed at preventing exploitation of over 35 million vulnerable 
"low-income resource -poor" farmers and to enable them to have a just and equitable share in 
economic develo pment – a goal that all Member s had solemnly t aken upon themselves during the 
Uruguay Round and that they had reaffirmed with the Doha Ministerial Declaration . At this point, 
India reiterate d that the measures identified by Guatemala in its request for the establishment of a 
panel d id not violate India's obligations under the Agreement on Agriculture  and the SCM Agreement . 
Neither did these measures ha ve any trade -distorting effect on global sugar trade nor d id they 
adversely affect Guatemala's commercial i nterests. In fact, these measures ha d resulted in raising 
the domestic prices of sugar within India , thereby making imports of sugar into India more lucrative 
and making exports from India uneconomical. Therefore, in terms of Article 3.7 of the DSU, India 
believed that Guatemala could have exercised its judgement as to whether its actions would be 
fruitful. India was rather surprised that despite India's explanation of the challenged measures in 
good faith and offer for continuous bilateral engagement  to resolve any issues, Guatemala ha d 
instead chosen to request  the establishment of a panel which w ould put a strain on the already thin 
and scarce resources of the DSB. For the above reasons, India was not in a position to accept the 
establishment of a p anel at the present meeting.  
6.13.   The representative of  the United  States  said that the United States  simply wished to  note 
that with respect to these three sub -items, these matters  would appear on the Agenda of a future 
DSB meeting only at the request of the c omplaining Members.  
6.14.   The DSB took note of the statements and agreed to revert to this matter.  
7  APPELLATE BODY APPOI NTMENTS: PROPOSAL BY  ARGENTINA; AUSTRALI A; BENIN; 
THE PLURINATIONAL ST ATE OF BOLIVIA; BRAZ IL; CANADA; CENTRAL AFRICAN 
REPUBLIC; CHILE; CHI NA; COLOMBIA; COSTA RICA ; CUBA; DOMINICAN RE PUBLIC; 
ECUADOR; EGYPT; EL S ALVADOR; THE EUROPEA N UNION; GUATEMALA; HONDURAS; 
HONG KONG, CHINA; IC ELAND; INDIA; INDONE SIA; ISRAEL; KAZAKHS TAN; KOREA; 
LIECHTENSTEIN; MEXIC O; MOROCCO; NEW ZEAL AND; NICARAGUA; NORT H MACE DONIA; 
NORWAY; PAKISTAN; PA NAMA; PARAGUAY; PERU ; QATAR; THE RUSSIAN  FEDERATION; 
RWANDA; SINGAPORE; S WITZERLAND; THE SEPA RATE CUSTOMS TERRITO RY OF TAIWAN, 
PENGHU, KINMEN AND M ATSU; TURKEY; UKRAIN E; URUGUAY; THE BOLI VARIAN 
REPUBLIC OF VENEZUEL A AND VIET NAM (WT/DSB/W/609/REV.12 ) 
7.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
Mexico, on behalf of 76 delegations. He drew attention to the revised proposal contained in document 
WT/DSB/W/609/Rev.1 2 and invited the repre sentative of Mexico to speak . 
7.2.  The representative of Mexico , speaking on behalf of the co -sponsors of the proposal contained 
in document WT/DSB/W/609/Rev.1 2, said that the delegations in question had agreed to submit the 
joint proposal, dated  13 July 2019  to launch the AB selection processes . Mexico  welcome d Qatar as 
new co -sponsor as well as  38 members of the African Group who  had expressed their intention of 
co-sponsor ing this proposal. At the present meeting, Mexico, speaking on behalf of t hese 
114 delegations , wished to make the following statement. The increasing and considerable number 
of Members submitting this joint proposal expressed a common concern with the current situation 
in the Appellate Body, which was seriously affecting its fu nctioning and the overall functioning of the 
dispute settlement system against the best interest of its Members . WTO Members had a 
responsibility to safeguard and preserve the Appellate Body, the dispute settlement system and the 
multilateral trading syste m. Thus, it was the Members' duty to launch the AB selection processes, 
as set out in the joint proposal before the DSB at the present meeting . This proposal sought to: 
"(i) start six selection processes: one process to replace Mr. Ricardo Ramírez -Hernández, whose 
second term of office expired on 30 June 2017; a second process to fill the vacancy resulting from 
the resignation of Mr. Hyun Chong Kim with effect from 1 August 20 17; a third process to replace 
Mr. Peter Van den Bossche, whose second term of office expired on 11 December 2017; a fourth 
process to replace Mr. Shree Baboo Chekitan Servansing, whose first four-year term of office expired WT/DSB/M/431  
 
- 29 - 
 
  on 30 September 2018; a fifth p rocess to replace Mr. Ujal Singh Bhatia, whose second term of office 
will expire on 10 December 2019; and a sixth process to replace Mr. Thomas R. Graham whose 
second term of office will expire on 10 December 2019; (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 issues its recommendation within 60 days after the deadline for nominations 
of candidates" . The proponents were flexible with regard to t he deadlines for the AB selection 
processes , but believed that Members should consider the urgency of the situation . Mexico continued 
to urge all Members to support this proposal in the interest of the multilateral trading system and 
the dispute settlement  system . 
7.3.  The representative of  the European Union  said that his delegation wished to refer to its 
statements  made  on this matter  at previous DSB meetings, starting in February 2017 . The gravity 
and urgency of the situation was increasing as months went by . WTO Members had a shared 
responsibility to resolve this matter  as soon as possible . The EU wished to thank all Members that 
had co -sponsored the proposal to launch the AB selection processes . The EU invited all other 
Members to endorse this proposal so that new AB members could be appointed as soon as possible . 
The EU also wished to recall that concrete proposals had been submitted to the General Council with 
a view to unblocking the AB selection processes . These proposals amounted to serious  attempts at 
responding to the concerns related to AB appointments . These proposals were currently being 
discussed under the auspices of the General Council . The EU invited all Members to engage 
constructively in these discussions so that the AB vacancies could be filled as soon as possible . 
7.4.  The representative of  the United  States  thank ed the DSB Chairperson  for the continued work 
on these issues. As the United States  had explained at prior DSB meetings, the United States was  
not in a position to support th e proposed decision. The systemic concerns that the United States  had 
identified remain ed unaddressed. As the United  States  had explained at recent DSB meetings, for 
more than 16 years and across multiple US Administrations, the United  States  had been raising 
serious concerns with the Appellate Body 's overreaching and disregard for the rules set by WTO 
Members. The United  States  would continue to insist that WTO rules be followed by the WTO dispute 
settlement  system, and would continue its efforts and its discussions with Members and with the 
DSB Chairperson  to seek a solution on these important issues.  
7.5.  The representative of Canada  said that his country  support ed the statement made by Mexico.  
It had now been over two years since the initiation of the AB selection process es was first proposed. 
The current proposal s ought  to launch the appointment processes for four current vacancies, and 
two additional upcoming vacancies at the A ppellate Body . Canada  commend ed the 38 new members 
of the African Group that had indicated their intent ion of  joining the proposal  as co-sponsors , as well 
as Qatar for its support of the proposal  contained in document WT/DSB/W/609/Rev.1 2. There were 
now 114 supporters of the proposal. The fact that such a critical mass s ought  to launch the AB 
selection processes was a testimony to the importance th at the WTO Membership accord ed to the 
dispute settlement system, including a fully -functioning A ppellate Body. Canada deeply regret ted 
that the DSB ha d not been able to comply with its legal obligation under Article 17.2 of the DSU to 
appoint Appellate Bod y members to fill the vacancies. The text of the DSU is clear: "[v]acancies shall 
be filled as they arise ". This requirement d id not provide for exceptions or justifications not to 
replenish the Appellate Body. Canada  support ed the informal process , led by  Amb. Walker as 
Facilitator,  under the auspices of the General Council , to discuss the various proposals to address 
US concerns. Canada remain ed committed to working with other interested Members, including the 
United  States , with a view to address those c oncerns and to start the AB selection processes 
expeditiously.  
7.6.  The representative of  Singapore  said that his country  wished to refer to its statements  made 
at previous DSB meetings  and to reiterate its serious systemic concerns regarding  the failure to 
launch the AB selection process es. Singapore welcome d Qatar and 38 members of the African Group 
as co-sponsors to the joint proposal  contained in document WT/DSB/W/609/Rev.1 2. At the informal  
TNC/H ODs meeting  of 19 July 2019 , the D irector -General  had reminded Members  that only three 
working months were left before  10 December 2019. As the situation was getting  more urgent, 
Singapore  welcomed  the broadening support for the joint proposal , which was supported by  
114 delegations  representing almost 70% of the Membership. At the same time, Singapore  looked 
forward to the progress report on the informal process on Appellate Body matters , which 
Amb. Walker as Facilitator would present at the General Council meeting to be held on  23 July 2019 .  
Singapore  urged all Members, especially those who ha d raised concerns, to engage in the informal 
process  on Appellate Body matters . Singapore wishe d to emphasi ze that the AB selection process es WT/DSB/M/431  
 
- 30 - 
 
  should be allowed to proceed unconditionally. Singapore w ould continue to engage constructively 
and collaboratively towards resolving this impasse.  
7.7.  The representative of New Zealand  said that his country  wished  to reiterate its support for the 
co-sponsored proposal  contained in document WT/DSB/W/609/Rev.1 2, to emphasi ze the systemic 
importance of commencing the AB selection process es as soon as possible , and to refer to its 
statements made at previous DSB meetings on this matter.  
7.8.  The representative of Norway  said that his country  welcome d the new co -sponsors of the 
proposal  contained in document WT/DSB/W/609/Rev.1 2. Norway wished to  refer to its statements  
made at previous  DSB meetings  under this Agenda  item, and again, to underline its serious concerns, 
as the need to resolve this situation was becom ing more and more urgent . 
7.9.  The representative of Switzerland  said that his country  wished to refer to its statements made 
at previous DSB meetings  on this matter . Again, Switzerland deeply regret ted that the DSB remain ed 
unable to launch the AB selection process es. Members  were now approaching the situation where 
the Appellate Body would be  losing its minimal quorum. The situat ion was alarming,  and Members  
had to act now. Once again, Switzerland urged all Members to engage constructively in order to find 
concrete solutions without further delay. Switzerland  wished to  reiterate that for its part  it stood 
ready to continue the dis cussions in the context of the informal process under the auspices of the 
General Council.  
7.10.   The representative of  Australia  said that her country wished to  refer to its statements made 
at previous DSB meetings on this matter and  to reiterate its serious concerns regarding the DSB 's 
inability to commence the AB selection process es. Australia  welcome d the leadership provided by 
the DSB Chairman  as facilitator of the General Council 's informal process on Appellate Body matters. 
Austral ia was mindful of the urgent work required to address key concerns and was strongly 
committed to building on the valuable contributions made to date, with a view to developing a 
solution in the interests of all Members.  
7.11.   The representative of Brazil  said that his country  wished to refer to its statements made at 
previous DSB meetings regarding the urgency of launching the AB selection process es. Brazil 
welcome d the African Group and Qatar  as co -sponsors of the proposal  contained in document 
WT/DSB/W/609/Re v.12. As a result, t he majority of WTO Members were now  co-proponents of 
launch ing the AB selection process es.  
7.12.   The representative of Ecuador , speaking on behalf of the members of the Latin American and 
Caribbean Group ( GRULAC) that were also WTO Members,  wished to underline, once again, their 
serious concerns at the on -going and prolonged situation regarding the impasse in the AB selection 
processes . These Members  wished to reiterate their concern about the prolonged  process aimed at  
finding  a solution to this impasse. This significant impasse  undermine d the very foundations  of the 
multilateral trading system. WTO Members part of the GRULAC  welcomed the informal process on 
Appellate Body matters under the auspices of the General Council  for the purposes of unblock ing 
this prolonged paralysis in the AB selection processes . This high-level informal  process underscore d 
the urgency and importance of this issue . WTO Members part of the GRULAC  wished to thank the  
DSB Chairman for his efforts  as Facilitator  of this informal process and for his report to Members on 
the work that ha d been undertaken in the context of that process . WTO Members part of the GRULAC  
wished to pay tribute to the work of the DSB Chairman in that respect . However, i n spite of the 
numerous proposals that had been submitted, some of which had been submitted by WTO Members 
part of the GRULAC , no concrete progress had been made . WTO Members part of the GRULAC  had 
been trying to respond to the concerns raised regarding the functi oning of the Appellate Body. Thus 
far, these concerns had prevented the launching of the AB selection process es. Article 17.2 of the 
DSU stated that : "[v]acancies must be filled as they arise ". This mandatory provision had continued 
to be violated . Similar ly, WTO Members part of the GRULAC  looked forward to any concrete proposals 
that could address specific concerns raised. However, the search for a solution to systemic concerns 
should not be an obstacle to the functioning of the dispute settlement system . All Members needed 
to show good faith in trying to find solutions . Otherwise, in  December 2019, the Appellate Body 
would no longer be operational. Therefore , WTO Members part of the GRULAC  wished to  reiterate 
their willingness to continu e to contribute  to find ing a definitive solution to this urgent problem  and 
supported the efforts of Amb. Walker  to this end .  
7.13.   The representative of Chinese Taipei  said that his delegation wished to refer to its statements 
made at previous DSB meetings  and welcome d the new co-sponsors of the proposal  contained in WT/DSB/M/431  
 
- 31 - 
 
  document WT/DSB/W/609/Rev.1 2. Chinese Taipei  remain ed dedicated to finding a solution and 
urged all Members to engage constructively to this end.  
7.14.   The representative of Hong Kong, China  said that his delegation wished to refer to its 
statements made at previous DSB meetings . Hong Kong, China wished to reiterate its 
disappointment and concern with the impasse in the AB selection processes, which remained 
unresolved . Hong Kong, China wished to e mphasize that the discussion s on improving the DSU 
should not be a reason to delay the AB appointments . It was not justifiable to attach pre -conditions 
to the launch of the AB selection processes . Hong Kong, China called on Members to lift the blockage 
of the AB selection processes without further delay .  
7.15.   The representative of Japan  said that his country wished to refer to its statements made at 
previous DSB meetings under the same Agenda item . Japan supported the informal process under 
the auspices of the General Council on matters related to the functioning of the Appellate Body  which 
was being facilitated by Amb. Walker.  The active engagement of all WTO Members was essential to 
the timely resolution of the matters related to the functioning of the App ellate Body.  
7.16.   The representative of Mexico , speaking on behalf of the 114 co-sponsors of the proposal  
contained in document WT/DSB/W/609/Rev.1 2, expressed regret that for the twenty -fifth occasion, 
Members still had not been able to start the AB selection p rocesses and had continuously failed to 
fulfill their duties as Members of this Organization . The fact that a Member might have concerns 
about certain aspects of the functioning of the Appellate  Body could not serve as a pretext to impair 
and disrupt the w ork of the Appellate Body . There was no legal justification for the current impasse 
in the AB selection processes, which resulted in nullification and impairment for many Members . As 
Article 17.2 of the DSU clearly stated: "[v]acancies shall be filled as they arise" . No discussions 
should prevent the Appellate Body from continuing to operate fully and Members had to comply with 
their obligation under the DSU to fill the AB vacancies . By failing to act at the present meeting, 
Members would maintai n the current situation, which was seriously affecting the work of the 
Appellate Body against the best interest of all WTO Members .  
7.17.   The representative of Mexico  said that his country  wished to thank the new co-sponsors who 
had decided to support the  propo sal contained in document WT/DSB/W/609/Rev.1 2. This brought  
the number of co-sponsors to 114 delegations. Mexico  encourage d those Members who ha d not 
already done so to support this proposal . As previously  mentioned, th is proposal include d the 
selection of six of the seven Appellate Body  members . Despite the repeated attempts made by these 
114 delegations  to launch the AB selection processes to fill its vacancies, the Appellate Body would 
no longer be operational in 2 0 weeks . This situation  was completely unacceptable and would have a 
serious systemic impact on the Organization . Each and every Member had agreed that Members had 
the right to appeal the recommendations issued by panels . This right was an essential part of the 
dispute settlemen t system and the multilateral trading system . It was also one of the most significant 
outcomes of the Uruguay Round . It was unacceptable for the concerns of a single Member to deprive 
164 Members of this right . Currently, 114 delegations (almost 70%  of Members) shared the same 
concern  regarding the possibility of not having a functional Appellate Body by December 2019, since 
the Appellate Body w ould no longer have the minimum three members required to form a division 
pursuant to the provisions of Article 17 .1 of the DSU , and w ould accordingly not be able to hear new 
appeals. Therefore, there was a risk that gradually, the dispute settlement system w ould no longer 
be operational. At present, 12 proposals had been submitted  as part of t he informal process on 
Appellate Body matters conducted under the auspices  of the General Council . These proposals sought  
to address the concerns expressed by one Member . This should allow Members to immediately begin 
the AB selection processes . More importantly, Members had to separate the AB selection processes 
from any other concerns . All Members had a shared responsibility to resolve this issue as soon as 
possible . Therefore, Mexico wished to reiterate its urgent call on Members to act responsi bly by 
immediately beginning the selection processes to replace six of the seven Appellate Body members . 
7.18.   The representative of Korea  said that his country wished to refer to its statements made at 
previous DSB meetings . Korea welcome d the new co-sponsors o f the proposal  contained in document 
WT/DSB/W/609/Rev.1 2 and supported the statement made by Mexico regarding the proposal of 
which Korea was a co -sponsor . Korea wished to express and share d a deep concern as well as  a 
sense of urgency regarding the filling of the vacancies in the Appellate Body . 
7.19.   The representative of Uruguay  said that his country supported the statements made by Mexico 
on behalf of the 114 co-sponsors of the proposal contained in document WT/DSB/W/60 9/Rev.1 2, as 
well as Ecuador 's statement made on behalf of members of the GRULAC that were also WT/DSB/M/431  
 
- 32 - 
 
  WTO Members . Uruguay highlighted that WTO Members were currently engaged in constructive and 
positive discussions under the auspices of the General Council than ks to the leadership of the DSB 
Chairman as Facilitator . A significant number of p roposals had been made by Members  in the context 
of these discussions. These proposals  were aimed at improving the functioning of the Appellate Body . 
In approximately  20 week s, the situation w ould become critical.  Therefore , Members  needed to 
launch the AB selection process es as quickly as possible in order to ensure that Members and the 
WTO could count on a fully functioning Appellate Body  and the dispute settlement mechanism .  
7.20.   The representative of China  said that his country  welcome d Qatar as a co-sponsor and the 
African Group Members that had express ed their intention of co-sponsor ing the proposal  contained 
in document WT/DSB/W/609/Rev.1 2. China  support ed the state ment made by Mexico at the present 
meeting on behalf of 114 delegations . China regret ted that the DSB , once again , had failed to launch 
the AB selection process es, which took Members one step further to pushing  the Appellate Body "off 
the cliff". China  recall ed that Members ha d a shared responsibility to promptly fill the vacancies of 
the Appellate Body , as required by Article 17.2 of the DSU , without any precondition. To break the 
AB selection deadlock, Members had established the informal process  on AB matters facilitated  by 
Amb. Walker  and had sought to accommodate all concerns raised by the United  States  through 
various proposals. Regrettably, such sincere efforts ha d yet to receive any meaningful response from 
the United  States . For more than 7 0 years, the United  States  had been the primary architect and 
beneficiary of the rules -based multilateral trading system. According to the 2018 Economic Report 
of the US President, the United  States  obtained  better outcomes through formal WTO adjudication 
rather than through negotiations, increasing the probability that the complaint w ould be resolved 
and decreasing the time it t ook to remove the trade barrier s at issue . Since 1995, the United  States  
had won 85.7% of its offensive cases, beating the global average of 84.4%. When it c ame to 
defensive cases, the United  States  still achieved a  25% wining rate , which was far better than the 
global average of 16.6%. Even when the United  States  was not a party to a dispute, its businesses 
also benefit ted from posi tive solution s to dispute s, as these  contribute d to a viable international 
business environment. Therefore, if the WTO Appellate Body were to be paralyzed, not only the 
interest s of the entire  WTO Membership, but also that of the United  States  would be com promised. 
Moreover, the collapse of the adjudication function of the WTO would severely undermine the 
interests of developing -country Members. If the rule of law were to be  replaced by the law of the 
jungle, those with least bargaining power would be  the o nes most likely to be h armed . Appellate 
procedures and practices could be improved , but blocking the AB selection process es was not the 
solution. It was easy to bring down a successful system , but far more difficult to rebuil d one. On the 
one hand, h istory w ould remember those that had contribute d to enhance the rules -based 
multilateral trading system. On the other hand, as one former Appellate Body Member had recently 
stated  in his farewell speech, history w ould not judge kindly those responsible for  the collapse of the 
WTO dispute settlement system. As a frequent user  of the WTO dispute settlement system , China 
stood ready to work with other Members , as well as with the DSB Chairman,  to save this "crown 
jewel " in a timely manner.  
7.21.   The representative o f the United  States  said that the United States  had listened closely as 
several Members ha d criticized the United  States . These Members argue d that the United  States  had 
failed to participate in on -going discussions on Appellate Body reform. These statements were wrong 
– and appear ed to represent public posturing by these Members. The facts establish ed that no 
Member ha d been more constructively and consistently engaged on these substantive issues th an 
the United  States . The United States  wished to set the record straight. Over the past year, in the 
DSB, the United  States  had outlined its concerns in exhaustive detail. The United States  had not 
avoided discussion; rather, the United States  had laid ou t in the clearest possible terms the 
US position on the issues raised. While the DSU text was straightforward and clear, the United States  
recognize d that the Appellate Body ha d ignored that text, and many WTO Members had not focused 
on just how far the Ap pellate Body 's practice had strayed from that text. And so, beyond the 
US detailed statements  made at DSB meetings , the United States  had made clear its willingness to 
discuss these concerns further with any Member in order to deepen each other 's understan ding of 
these substantive issues. Several Members ha d participated in these dialogues and in many 
instances the United States  had found the discussions to be frank and productive. In the informal 
process  on Appellate Body matters , the United  States  had been represented at every stage of the 
process, seeking to gain a better understanding of each Member 's views on the issues raised. As the 
United  States  had made clear, it was critical to understand if Members ha d a common understanding 
of the concerns raised. Unfortunately, one, or perhaps a few, WTO Members ha d indicated they d id 
not share the concerns of the United  States  that the Appellate Body ha d deviated from the DSU text. 
These Members ha d not, however, adequately or persuasively e xplained how they could read the 
plain DSU text differently. Therefore, where a different understanding ha d become apparent, the WT/DSB/M/431  
 
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  United States  had registered the lack of any DSU textual basis for that different understanding during 
meetings of the General Council. So,  the United  States  continue d, as it ha d always done, to be 
engaged on these important substantive issues, including by meeting regularly with the DSB 
Chairperson  as Facilitator and with Members to exchange views on the issues under discussion.  
Indeed, for several months, both within the informal process on Appellate Body matters and outside, 
the United  States  had actively sought engagement from Members on what the United States  believe d 
to be a fundamental issue. That is, how Members had  come to this point where the Appellate Body, 
a body established by Members to serve the Members, was disregarding the clear rules that had 
been set by those same Members. In other words, Members need ed to engage in a deeper discussion 
of why the Appellate Body ha d felt free to depart from what Members had agreed to.  Engagement 
was a two -way street. Without further engagement from WTO Members on the cause of the problem, 
there was no reason to believe that  simply adopting new or additional language, in whatever form, 
would be effective in addressing the concerns that the United  States  and other Members ha d raised.  
7.22.   The Chairman  thanked all delegations for their statements. He said that, as in the past, the 
DSB would take note of the statements expressing the respective positions, which would be duly 
reflected in the minutes of this meeting . As a number of delegations had stated, this matter required 
urgent  engagement on the part of all WTO Members . As a numbe r of delegations had referenced, 
under the auspices of the General Council, he had agreed to assist the Chair of the General Council, 
in his personal capacity as Facilitator, in an informal process of focused discussions on the functioning 
of the Appellate  Body. He then recalled that on 7  May 2019, he had provided a second progress 
report to the General Council on these informal consultations. This report had been circulated to all 
Members in document JOB/GC/217 . The Chairman said that he had continued the informal process 
of solution -focused discussions in a range of different formats , including an open -ended informal 
meeting held on 18 July 2019 for transparency purposes.  It was his  intention to make another 
progress report to the General Council at its meeting on 23  July 2019 .  
7.23.   The DSB took note of the statements.  
__________