RESTRICTED  
  
WT/DSB/M/434  
 
10 December  2019 
(19-8508) Page: 1/29 
Dispute Settlement Body  
30 September 2019    
 
 
 
MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 30 SEPTEMBER  2019 
Chairman: H.E. Dr David Walker (New Zealand)  
Table of Contents  
1   SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOP TED 
BY THE  DSB ................................ ................................ ................................ ......................  2 
A. United  States – Anti-dumping measures on certain hot -rolled steel products from Japan:  
Status  report by the United  States  ................................ ................................ ........................  3 
B. United  States – Section  110(5) of the US Copyright Act: Status report by the United  States  ..... 3 
C. European  Communities – Measures affecting the approval and marketing of biotech  
products: Status report by the Eu ropean  Union ................................ ................................ ....... 4 
D. United  States – Anti-dumping and countervailing measures on large residential  
washers from Korea: Status report by the United  States  ................................ ..........................  5 
E. United  States – Certain methodologies and their application to anti -dumping proceedings 
involving China: Stat us report by the United  States  ................................ ................................ . 6 
F. Indonesia – Importation of horticultural products, animals and animal products:  
Status report by Indonesia  ................................ ................................ ................................ ... 7 
2   UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  OF 2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE DSB  ..........................  8 
A. Statement by the European  Union  ................................ ................................ .....................  8 
3   EUROPEAN  COMMUNI TIES AND CERTAIN MEM BER STATES – MEASURE S 
AFFECTING TRADE IN L ARGE CIVIL AIRCRAFT:  IMPLEMENTATION OF T HE 
RECOMMENDATIONS ADOP TED BY THE DSB  ................................ ................................ .... 9 
A. Statement by the United States  ................................ ................................ ........................  9 
4   TURKEY – CERTAIN  MEASURES CONCERNING  THE PRODUCTION,  
IMPORTATION AND MARK ETING OF PHARMACEUTI CAL PRODUCTS  ...............................  10 
A. Request for the establishment of a panel by the European Union ................................ .......... 10 
5   INDIA – ADDITION AL DUTIES ON CERTAIN  PRODUCTS FROM  
THE UNITED  STATES  ................................ ................................ ................................ ...... 11 
A. Request for the establi shment of a panel by the United States  ................................ ............. 11 
6   MOROCCO – DEFINI TIVE ANTI -DUMPING ME ASURES ON SCHOOL EXE RCISE  
BOOKS FROM TUNISIA  ................................ ................................ ................................ ... 12 
A. Request for the establishment of a panel by Tunisia  ................................ ........................... 12 WT/DSB/M/434  
 
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 7   UKRAINE – ANTI -DUMPING MEASURES ON A MMONIUM NITRATE  .............................  13 
A. Report of the Appellate Body and  Report of the Panel  ................................ ......................... 13 
8   KOREA – ANTI -DUM PING DUTIES ON PNEUM ATIC VALVES FROM JAP AN ..................  15 
A. Report of the Appellate Body and  Report of the Panel  ................................ ......................... 15 
9   PROPOSED NOMINAT ION FOR THE INDICATI VE LIST OF GOVERNMEN TAL AND 
NON-GOVERNMENTAL PAN ELISTS ................................ ................................ ..................  19 
10   APPELLATE BODY APPOINTMENTS: PROPOS AL BY ANGOLA; ARGENT INA; 
AUSTRALIA; BENIN; PL URINATIONAL STATE OF  BOLIVIA; BOTSWANA; BRAZIL; 
BURKINA FAS O; BURUNDI; CABO VER DE; CAMEROON; CANADA ; CENTRAL AFRICAN 
REPUBLIC; CHAD; CHIL E; CHINA; COLOMBIA; CONGO; COSTA RICA; C ÔTE D'IVOIRE; 
CUBA; DEMOCRATIC REP UBLIC OF CONGO; DJIB OUTI; DOMINICAN REPU BLIC; 
ECUADOR; EGYPT; EL  SALVADOR; ESWATINI; T HE EUROPEAN UNION;  GABON; THE 
GAMBIA; GHANA; GUATE MALA; GUINEA; GUINEA -BISSAU; HONDURAS; H ONG KONG, 
CHINA; ICELAND; INDI A; INDONESIA; ISRAEL ; KAZAKHSTAN; KENYA;  REPUBLIC OF 
KOREA; LESOTHO; LIEC HTENSTEIN; MADAGASCA R; MALAWI; MALAYSIA;  MALI; 
MAURITANIA; MAURITIU S; MEXICO; MOR OCCO; MOZAMBIQUE; NA MIBIA; NEW 
ZEALAND; NICARAGUA; NIGER; NIGERIA; NORT H MACEDONIA; NORWAY;  PAKISTAN; 
PANAMA; PARAGUAY; PE RU; QATAR; RUSSIAN F EDERATION; RWANDA; S ENEGAL; 
SEYCHELLES; SIERRA L EONE; SINGAPORE; SOU TH AFRICA; SWITZERLA ND; THE 
SEPARATE CUSTOMS T ERRITORY OF TAIWAN, PENGHU, KINMEN AND M ATSU; 
TANZANIA; THAILAND; TOGO; TUNISIA; TURKE Y; UGANDA; UKRAINE; URUGUAY;  
THE BOLIVARIAN REPUB LIC OF VENEZUELA; VI ET NAM; ZAMBIA AND Z IMBABWE  ........  20 
11   CANADA -EUROPEAN  UNION INTERIM APPEA L ARBITRATION ARRANG EMENT 
PURSUANT TO ARTICLE 25 OF THE DSU  ................................ ................................ .........  25 
A. Joint Presentation by Canada and the European Uni on ................................ ........................ 25 
1  SURVEILLANCE OF IMPL EMENTATION OF RECOMM ENDATIONS 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.199) 
B. United  States – Section  110(5) of the US copyright act: Status report by the United States 
(WT/DS160/24/ Add.174) 
C. European  Communities – Measures affecting the approval and marketing of biotech products: 
Status report by the  European  Union ( WT/DS291/37/ Add.137) 
D. United  States – Anti-dumping and countervailing measures on large residential washers from 
Korea: Status report by the United States (WT/DS464/17/ Add.21) 
E. United  States – Certain methodologies and their application to anti -dumping proceedings 
involving China: Status report by the United States ( WT/DS471/17/ Add.13) 
F. Indonesia – Importation of horticultural products, animals and animal products: Status report by 
Indonesia (WT/DS477/21/Add.8 – WT/DS478/22/Add.8)  
1.1.  The Chairman  noted that there were six sub -items under this Agenda item concerning status 
reports submitted by delegations pursuant to Article  21.6 of the DSU. He recalled that Article 21.6 
required 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 the date of establishment of the rea sonable 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 delegations 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 n o change in Members' 
positions already on record". He then turned to the first status report under this Agenda item.  WT/DSB/M/434  
 
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  A. United  States – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status report by the United  States ( WT/DS184/15/ Add.199) 
1.2.  The Chairman  drew attention to document WT/DS184/15/Add.199, which contain ed the status 
report by the United  States on progress in the implementation of the DSB's recommendations in the 
dispute  concerning  US anti-dumping measures on certain hot -rolled steel products from Japan . 
1.3.  The representative of the United  States  said that the  United States had provided a status report 
in this dispute on 19 September 2019, in accordance with Article 21.6 of the DSU. Th e 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 DSB's  recommendations and rulings that had yet to be addressed, the US Administration 
would  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.174) 
1.6.  The Chairman  drew attention to document WT/DS160/24/Add.174, which contain ed the status 
report by the United  States on progress in the implementation of the DSB's recommendations in the 
dispute  concerning Section  110(5) of the US Copyright Act.  
1.7.  The representative of the United States  said that the  United States had provided a status report 
in this dispute on 19 September 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 this 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 . He referred to 
the EU's statements  made at previous DSB meetings on this matter . The European Union  wished  to 
resolve this dispute  as soon as possible.  
1.9.  The representative of China  said that, n early two decades after the DSB had adopted the Panel 
Report in this di spute, the United States continue d to fail to bring its WTO -inconsistent measures 
into conformity. None of its 175 status reports provided thus far indicate d any progress  on 
implementation , which was incompatible with Article 21.1 of the DSU. Prompt compliance was a 
legal obligation under the DSU that had to be met unconditionally. Compliance had an  impact  on 
Members ' trust with respect to  the effectiveness of the dispute set tlement system and its ability to 
rectify  WTO-inconsistent trade distortions. When the United States, the most frequent user and the 
major beneficiary of the dispute settlement system, deliberately neglected this legal obligation for 
so long, the security and predictability of the multilateral trading system would inevitably be 
compromised. Therefore , ensuring prompt compliance should necessarily  be one of the priorities in 
any WTO dispute settlement reform. China,  therefore , urged the United States  to faithfully hono ur 
its commitments under the DSU and the TRIPS Agreement by implement ing the DSB 's 
recommendations and rulings in this dispute  without further delay .  
1.10.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  WT/DSB/M/434  
 
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 C. European  Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the  European  Union ( WT/DS291/37/ Add.137) 
1.11.   The Chairman  drew attention to document WT/DS291/37/Add.137, which contain ed the 
status report by the European  Union on progress in the implementation of the DSB's 
recommendations in the dispute  concerning measures affecting the approval and marketing of 
biotech products.  
1.12.   The representative of the European  Union  said that t he European Union continue d 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 repeatedly explained by the EU and confirmed 
by the United States  during the EU -US biannual consultations held on 12 June 2019, efforts to reduce 
delays in authori zation procedu res were constantly maintained at a high level. This ha d resulted in 
a clear improvement of the situation. It was also important to note that the slow reaction of 
applicants in certain applications also increase d the overall average time needed for risk as sessment. 
On 16  September 2019, two draft authori zations1 for new GM maize had been  presented for a vote 
in the Appeal Committee with a "no opinion " result. Thereafter , it was for the European Commission 
to decide on these authori zations. Furthermore, on t he same day, a draft authori zation for a new 
GM maize2 had been  presented for a vote in a member States Committee with a "no opinion " result. 
This measure would, thereafter, be submitted for a vote in the Appeal Committee on 
11 October  2019. At past DSB meetings , the United States  had referred to what was known as the 
EU "opt-out Directive ". The EU wished to  reiterate that the DSB 's recommendations and rulings did 
not cover that "opt-out Directive ". At past DSB meetings , the United States had also made ce rtain 
references to a statement by the EU Group of Chief Scientific Advisors. The EU wished  to clarify that 
this statement focuse d on the future challenges for products obtained by new mutagenesis 
techniques. The statement d id not state nor imply that Dire ctive 2001/18 would not be "fit for 
purpose " as regard ed "conventional GMOs ". The EU act ed in line with its WTO obligations. Finally, 
the EU wished to  recall that the EU approval system was not covered by the DSB's recommendations 
and rulings  in this dispute .  
1.13.   The representative of the  United States  thank ed the European  Union (EU) for its status report 
and its statement made at the present meeting . While the United States appreciate d the European 
Commission 's approval of several soy and corn p roducts in July 2019, the United States  remain ed 
concerned with the EU 's approval of biotech products. The United States  continue d to see delays 
that affect ed dozens of applications that h ad been awaiting approval for an extended period, or that 
had alread y received approval. And even when the EU finally approve d a biotech product, EU 
member States continue d to impose restrictions on the supposedly approved product. As the United 
States  had noted at prior DSB meetings, the amendment of EU 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 Aut hority (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 territory 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. The United 
States,  once ag ain, 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/EC. 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 made 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 support for the regulatory framework under EU Directive 2001/18. The message provided 
in that sta tement 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 advancements in scientific knowledge and technology. 
                                                
1 Maize MON -89034 × 1507 × MON -88017 × 59122 × DAS -40278 -9 and maize MON -89034 × 1507 × 
NK603 × DAS -40278 -9 
2 Maize Bt11 × MIR162 × MIR604 × 1507 × 5307 × GA21  WT/DSB/M/434  
 
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  The United States urge d the EU to ensure that all of its measures affecting the approval of biotech 
products, including measures adopted by individual EU member States, were based on scientific 
principles, and that decisions were taken without undue delay.  
1.14.   The representative of the European  Union  said that the  WTO Agreements d id not require full 
international harmoni zation and le ft some regulatory space or autonomy to ind ividual WTO Members. 
The European Union ha d different regulatory approaches for non-GMOs and GMOs but, in all cases, 
such regulations d id not discriminate between imported and domestic like products. No EU member 
State ha d imposed any "ban". Under the terms of the relevant Directive , mentioned by the 
United  States , an EU member State could  adopt measures restricting or prohibiting cultivati on 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 was embedded in Article 22 of 
Directive 2001/18/EC: "[m]ember States may not prohibit, restr ict or impede the placing on the 
market of GMOs, as products 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 
measures adopted unde r the Directive "shall not affect the free circulation of authorised GMOs " in 
the EU. Currently,  the EU Common Catalogue of varieties of agricultural species include d 
150 varieties of maize MON -810, which were allowed to be marketed in the EU. As of  now, the 
European Commission ha d never received any complaint from seed operators or other stakeholders 
concerning the restriction or marketing of MON -810 seeds in the EU. This confirm ed the smooth 
functioning of the  internal market of MON -810 seeds. The EU  invite d the U nited States to provide 
any evidence they might  have at their disposal that would substantiat e the disruption of the free 
movement of MON -810 seeds in the EU. In relation to the statement of the Group of Chief Scientific 
Advisors, the EU wished  to recall that the Group of Chief Scientific Advisors was an independent 
group of scientific experts providing scientific advice to the European Commission.  There had been 
many reactions to the judgement of the C ourt 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 ongoing 
discussions on new mutagenesis techniques 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 consequ ences for health and environment protection.  
1.15.   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 re port by the United  States ( WT/DS464/17/ Add.21) 
1.16.   The Chairman  drew attention to document WT/DS464/17/Add.21, which contain ed the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
dispute  concerning anti -dumping and countervailing measures on large residential washers from 
Korea.  
1.17.   The representative of the United  States  said that the United States had provided a status 
report in this dispute on 19 September 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 o f 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 ha d completed implementation of the DSB 's recommendations concerning those 
anti-dumping and countervailing 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.  
1.18.   The repres entative of Korea  said that his country  wished to thank the United States for its 
status report . Korea again urge d the United States to take prompt and appropriate steps to 
implement the DSB 's recommendations with regard to  the "as such " measure in this di spute.  WT/DSB/M/434  
 
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 1.19.   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 U nited States  bring itself into compliance with its obligations. Instead, the 
United States continue d to apply the "as such" inconsistent differential pricing methodolo gy 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 measure 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-consistency 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 w ith the DSB 's recommendations and rulings in this dispute. This failure seriously 
undermine d the security and stability of the multilateral trading system.  
1.20.   The representative of China  said that t he Panel and the Appellate Body Reports in this dispute 
had made a number of important clarifications on the interpretation of the Anti -Dumping Agreement. 
Among other  things , the use by the United States of a differential pricing methodology and zeroing 
when applying the W -T methodology had been  found to be "as suc h" WTO-inconsistent. As a third 
party to the original proceeding in this dispute , China note d that the United States continue d to fail 
to bring its inconsistent measures into conformity. The reluctance of the United States regarding  
compliance , especially in anti -dumping disputes  such as the one at issue , left WTO Members such 
as China, Canada, Korea and Viet Nam no choice but to  repeatedly challenge the same inconsistent 
measures of the United States before panels and the Appellate Body. Article 21.1 of the DSU 
explicitly set out the compliance obligation , which should be unconditionally observed by all WTO 
Members. China,  theref ore, urged the United States to faithfully implement the DSB's 
recommendations and rulings in all cases  including this one.  
1.21.   The representative  of the United States  recalled that, as Canada had noted , 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 bi laterally.  
1.22.   The DSB took note of the statements and agree d to revert to this matter at its next 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.13) 
1.23.   The Chairman  drew attention to document WT/DS471/17/Add.13, which contain ed the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
dispute  concerning certain methodologies and their application to anti -dumping proceedings 
involving China.  
1.24.   The representative of the United  State s said that t he United States  had provided a status 
report in this dispute on 19 September 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.  
1.25.   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 , which had found that certain measures 
taken by the United  States to be inconsistent with the requirements of the Anti -Dumping Agreement, 
including  the following : (i) the use of zeroing under the W -T methodology was "as such " inconsistent 
with Article 2.4.2; ( ii) the so -called "single rate presumption " "as such " violate d Article 6.10 and 
9.2, and ( iii) the "adverse facts available " was a norm of general and prospective application which 
could  be subject to future "as such " challenges. China was very disappointed that, more than 
two years  after the DSB had adopted recommendation s and rulings  in this dispute , and 13 months 
after the expiry of the reasonable period of time  for implementation , the United States continue d to 
fail to bring its WTO -inconsistent measures into conformity. As China  had noted at prior DSB 
meetings, status reports provided by the United States did not appear to be different from one 
another, and none indicate d any progress on implementation. When China had sought the 
authorization to suspend in accordance with the DSU, the United S tates had chose n to further delay WT/DSB/M/434  
 
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  the resolution of this dispute by referring the matter to Article 22.6 of the DSU on arbitration . China  
was deeply concerned that the WTO -inconsistent measures of the United States continue d to infringe 
China 's economic in terests, distort ed relevant international markets and undermine d the 
effectiveness of the dispute settlement system. While China was still waiting for concrete 
implementation by the United States, it nevertheless stood  ready to take appropriate action in 
accordance with WTO rules to safeguard its legitimate interests. Article 21.1 of the DSU provide d 
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 Me mbers ". China  urged the United States  
to take prompt action and fully implement the DSB 's recommendations and rulings in this dispute 
without further delay.  
1.26.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
F. Indonesia – Importation of horticultural products, animals and animal products: Status 
report by Indonesia (WT/DS477/21/Add.8 – WT/DS478/22/Add.8)  
1.27.   The Chairman  drew attention to document WT/DS477/21 /Add.8 – WT/DS478/22/Add.8, 
which contain ed the status report by Indonesia on progress in the implementation of the DSB's 
recommendations in the dispute  concerning importation of horticultural products, animals and 
animal products.  
1.28.   The representative of Indonesia  said that  his country  wished to inform Members  that it ha d 
completed the enactment process of the new Minister of Agriculture Regulations which were relevant 
to these disputes, namely the M inister of Agriculture  Regulation No. 39/2019 concerning 
Recommendations for Importation of Horticultural Products and the M inister of Agriculture  
Regulation No. 42/2019 concerning the Importation of Carcass, Meat, Edible Offal and/or Its 
Processed Products for Consumption into  the Territory of the Republic of Indonesia. Regarding 
Measure 18, a Ministerial level meeting to discuss the draft amendment of the relevant laws along 
with its academic drafts ha d taken place . The drafts would  be brought to, and discussed with, the 
President for further process ing. Indonesia would  continue to engage with New Zealand and the 
United States regarding matters related to the DSB's recommendations and rulings  in this dispute .  
1.29.   The representative of New Zealand  said that his country wished  to thank Indonesia for its 
statement and the status report. New Zealand acknowledge d the steps that had been taken by 
Indonesia to date to bring its regulations into compliance with the DSB's recommendations and 
rulings  in this dispute , and Indonesia 's commitment to comply fully with these recommendations 
and rulings . New Zealand note d that both of the compliance deadlines that had been  agreed between 
the parties had since expired. New  Zealand welcome d the progress that ha d been made toward the 
legislative  process for the removal of Measure 18, which was recorded in Indonesia 's most recent 
status report . New Zealand remain ed seriously disappointed that full compliance ha d still not been 
reached in respect of a number of measures addressed in the dispute . New Zealand was particularly 
concerned about:  (i) the failure to remove Measure 18; (ii) the continued enforcement by Indonesia 
of limited application windows and validity  periods; (iii) harvest period import bans; (iv) import 
realization requirements; and (v) restrictions placed on import volumes based on storage 
capacity.  These issues, and others, continue d to adversely impact New Zealand's  exporters. The 
New Zealand Emba ssy 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 s teps, swiftly, 
to achieve long -term, commercially meaningful, compliance with the DSB's recommendations and 
rulings  in this dispute .  
1.30.   The representative of the United States  said that Indonesia continue d to fail to bring its 
measures into compliance with W TO 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 requirements, 
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  underst ood that Indonesia claim ed to have "completed its enactment process " of 
certain regulations, but the United States  was still waiting to hear from Indonesia on whether and 
how such action would bring its measures into full compliance. It also remain ed unclear how WT/DSB/M/434  
 
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 Indonesia 's proposed legislat ive amendments would address Measure 18 and when Indonesia would  
complete its process.  The United States look ed forward to receiving further detail from Indonesia 
regarding the planned changes to its regulations and laws.   
1.31.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
2  UNITED  STATES – CONT INUED DUMPING AND SU BSIDY 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 invite d the representative of the European  Union to speak.  
2.2.  The representative of the European  Union  said that his delegation  request ed, once again , that 
the United States stopped transferring anti -dumping and countervailing duties to the US industry. 
Even if the amounts at issue had considerably decreased, the latest C ontinued Dumping and Subsidy 
Offset Act report from December 2018 show ed that amounts were still being disbursed  in practice . 
Every disbursement that took place was clearly an act of non -compliance with the DSB's 
recommendations and rulings  in this dispute . As long as the U nited States did not fully stop 
transferring collected duties, th is item was rightly under the DSB's surveillance. The EU would  
continue to insist in this respect – as a matter of principle – independent of the cost resulting from 
the application of such limited duties. 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 status  reports  on implementation in this 
dispute. The EU would continue to place this item on the Agenda of DSB meetings as long as the 
United States had not fully implemented the WTO ruling and until the disbursements had cease d 
completely. This was a matter of principle  which justifie d the cost arising out of the application of 
WTO rules.  
2.3.  The representative of Brazil  said that, a s an orig inal party to this dispute , his country wished 
to thank , once again , the European Union for placing this item on the DSB Agenda . After more than 
16 years of the DSB's recommendations in th is dispute , and more than 13 years  after the date of 
the Deficit Reduction Act that had repealed the Byrd A mendment, anti -dumping and countervailing 
duties were still being disbursed to US domestic petitioners. Brazil call ed on the U nited States to 
comply fully with the DSB's recommendatio ns and rulings in this dispute.  
2.4.  The representative of Canada  said that his country wished to thank  the European Union for 
placing this item on the DSB Agenda . Canada  agree d with the European Union that the Byrd 
Amendment should remain subject to the surveillance of the DSB until the United States cease d to 
administer it .  
2.5.  The representative of the United States  said that a s the United States ha d noted at previous 
DSB meetings, the Deficit Reduction Act – which include d a provision repealing the Contin ued 
Dumping and Subsidy Offset Act of 2000 – had been  enacted into law in February 2006. Accordingly, 
the United  States ha d implemented the DSB 's recommendations and rulings in these disputes. The 
United States  recall ed, furthermore, that the EU ha d acknow ledged that the Deficit Reduction Act 
did not permit the distribution of duties collected on goods entered after 1 October 2007, more than 
11 years  ago. Even aside from this, the United States  question ed the trade rationale for inscribing 
this item  on the Agenda of the DSB . In May 2019, the EU had notified the DSB that disbursements 
related to EU exports to the United States had totalled  US$4,660.86 in fiscal year 2018. As such, 
the level of countermeasur es 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 0.001 percent – that 
is, one-one thousandth of a percent – on certain imports of the United States. If the calculation of 
the United States  was correct, application to goods worth US$3,355.82 of an additional duty of 0.001 
percent yield s duties collected worth about US$3.35. The United States  could round up that amount 
to US$3.36.  These values were no doubt outweighed by the associated costs resulting from the 
application of these countermeasures – or the DSB 's taking up this Agenda item. With respect to the 
EU's request for status reports in this matter, as the United States  had already explained at pr evious 
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 compliance. The practice of Members – including the WT/DSB/M/434  
 
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  European  Union as a responding party – confirm ed this widespread understanding of Article 21.6  of 
the DSU . Accordingly, since the United States ha d informed the DSB that it ha d come into compliance 
in this dispute, there was nothing  more for the United States to provide in a status report.  
2.6.  The representative of the European Union  said that his delegation  wished to recall that the 
CDSOA  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  continue to be in breach of Article 18.1 of the Anti -Dumping Agre ement and 
Article 32.1 of the SCM Agreement , and full implementation would  still have to be delivered. Once 
the transfers of anti -dumping and countervailing duties cease d, so would  the EU 's measures.  
2.7.  The DSB took note of the statements.  
3  EUROPEAN  COMMUNITIE S AND CERTAIN MEMBER  STATES – MEASURES A FFECTING 
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 United  States. He then invited the representative of the United States to speak . 
3.2.  The representative of the United  States  said 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 party 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 tho ugh 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)  differed from the "EC – Large Civil Aircraft" (DS316)  dispute because, 
in the "US – Offset Act (Byrd Amendment)" dispute (DS217) , 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 
had not. The United States had repealed the CDSOA  measure after all of the proceedings in the 
dispute, and the EU ha d not brought a challenge to the US claim of compliance. 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 pane l and appellate reports. The EU ha d 
also erroneously argued that where "a matter is with the adjudicators, it is temporarily taken out of 
the DSB 's surveillance ". There was nothing in the DSU text to support that argument, and the EU 
provide d no explanatio n for how it read Article 21.6 of the DSU to contain this limitation. 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 responding 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 furt her 
"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 meetings provide status reports in 
the "EC – Large Civil Aircraft" dispute (DS316 ).  
3.3.  The representative of  the European Union  said that his delegation wished  to start its statement 
with a clarification  relating to the previous Agenda item  relating to the "US — Offset Act (Byrd 
Amendment)" dispute (DS217) . The United States ha d stated that the EU took the view  that the 
issue of compliance ha d been adjudicated in that dispute . That was not correct. First, the EU wished 
to respond  to the United States regarding its reference to that dispute . The EU wished to recall its 
statement t hat th is dispute had been adjudicated and there were currently no further proceedings 
pending. This was a statement of fact and did not – as the U nited States implie d – suggest that the 
issue of compliance ha d been adjudicated. Regarding the "EC – Large Civil Aircraft" dispute (DS316) , 
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 WT/DSB/M/434  
 
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 defending party in  a dispute. That US assertion remain ed without merit. As the EU ha d repeatedly 
explained at past DSB meetings, the crucial point for the defending party 's obligation to provide 
status reports to the DSB was the stage of the dispute. This dispute was at a s tage where the 
defending party did not have an obligation to submit status reports to the DSB. The EU wished  to 
remind delegations that, in the "EC – Large Civil Aircraft" dispute (DS316) , the EU had notified to 
the WTO a new set of measures in a compliance communication which had been  tabled at the 
28 May 2018 DSB meeting. The United States  had responded that the measures included in that 
communication did not bring the EU in full compliance with the DSB's recommendations and rulings. 
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 consultations 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 examining  "the existence or consistency with a covered agreement of measures taken to 
comply with  the recommendations and rulings " of the DSB. As part of that examination , the 
compliance Panel had held a meeting with the parties and third parties and was assessing the parties ' 
replies to its questions on compliance of the EU.  The EU wished  to stress once again  that there was 
a compliance proceeding still ongoing in this dispute. Whether or not the matter was "resolved " in 
the sense of Article 21.6 was the very subject matter of this ongoing litigation. The EU 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 implementatio n efforts " through 
the submission of status reports to the DSB, while dispute settlement proceedings on that precise 
issue were ongoing.  The EU 's view was further supported by Article 2 of the DSU on the 
administration of the dispute settlement rules and p rocedures: 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  TURKEY – CERTAIN MEA SURES CONCERNING THE  PRODUCTION, IMPORTAT ION AND 
MARKETING OF PHARMAC EUTICAL PRODUCTS  
A. Request for the establishment of a panel by the European Union (WT/DS583/3)  
4.1.  The Chairman  recalled that the DSB had considered this matter at its meeting on 
15 August  2019 and had agreed to  revert to it, should a requesting Member wish to do so. He drew  
attention to the communication from the European Union contained in document WT/DS583/3 . He 
then invite d the representative of the European Union to speak.  
4.2.  The representative of the European Union  said that his delegation wished to  refer to its 
statement made at  the 15 August 2019  DSB meeting. The EU urge d Turkey to bring its measures in 
line with its WTO obligations. To this end, the EU request ed, for the second time , the establishment 
of a p anel to assess fully the measures  at issue . Pursuant to Article 6.1 of the DSU, a panel had to 
be established at the present  DSB meeting.  
4.3.  The representative of Turkey  said that his country deeply regret ted that the European Union 
had requested the establishment of a panel in this dispute for a second time. As Turkey had  explained 
in its statement addressing the EU's request at the 15 August 2019 DSB meeting, the EU's request 
was misplaced,  and its claims were unfounded. The matter raised in the EU's request relate d to 
Turkey's social security system and policies that were aimed at ensuring a fair, affordable and 
uninterrupted access to medicines for all patients in Turkey. These healthcare policies , and any 
specific measure taken in that context , were fully consistent with Turkey's rights and obligations 
under the WTO covered agreements. Turkey regret ted that, despite its good faith efforts to reach a 
mutually acceptable solution, the European Union ha d decid ed to maintain its allegations and to 
challenge what were essentially measures adopted to ensure that patients in Turkey had a reliable 
and affordable access to healthcare. Turkey  consider ed that any concerns relating to its public health 
policies were not matters that should be referred to a panel. Turkey, therefore, did not agree with 
the establishment of a panel as requested by the European Union at the present meeting . 
4.4.  The DSB took note  of the statements and agree d to establish a panel in accordance  with the 
provisions of Article  6 of the DSU with standard terms of reference.  WT/DSB/M/434  
 
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  4.5.  The representatives  of Brazil , Canada , China , India, Japan , the Russian Federation , 
Switzerland , Ukraine , and the United States  reserved their third -party rights to participate in the 
Panel's proceedings.  
5  INDIA – ADDITIONAL DUTIES O N CERTAIN PRODUCTS F ROM THE  UNITED  STATE S  
A. Request  for the establishment of a panel by the United States (WT/DS585/2)  
5.1.  The Chairman  drew attention to the communication from the United States contained in 
document WT/DS585/2 . He then invite d the representative of the United States to speak.  
5.2.  The representative of the United States  said that t he United States was requesting a panel to 
address  India's measures that were plainly inconsistent with the fundamental WTO obligation to 
provide Most -Favoured -Nation (MFN) treatment and treatment no less favourable than that provided 
for in a Member 's Schedule of Concessions, as set out respectively in A rticles I and II of the GATT 
1994. In particular, India ha d imposed additional duties on US products with an annual trade value 
of approximately US$1.1 billion. India 's measures imposing these additional duties breach ed its MFN 
obligation under Article I o f the GATT 1994, and India 's commitments under Article II of the GATT 
1994 to abide by its tariff concessions. As the DSB was  aware, several WTO Members were 
unilaterally retaliating against the United States for actions it ha d taken pursuant to Section 23 2 
that, as national security actions, were fully justified under Article XXI of the GATT 1994. These 
Members, including India, were pretending that the US actions under Section 232 were so-called 
"safeguards ", and further pretend ed that their unilateral, r etaliatory duties constitute d suspension 
of substantially equivalent concessions under the WTO Agreement on Safeguards. Just as these 
Members appear ed ready to undermine the dispute settlement system by throwing out the plain 
meaning of Article XXI and 70 years of practice, so too were they ready to undermine the WTO by 
pretending they were following WTO rules while taking measures blatantly against those rules. The 
United States  knew even from their own actions that many of these Members did not seriously 
believe that the US security measures under Section 232 were safeguards. India, for example, ha d 
not addressed whether its action was in response to an alleged "safeguard " taken as a result of an 
absolute increase in imports. If there had been  an absolute increase, the right to suspend 
substantially equivalent concessions under the Safeguard Agreement could  not be exerci sed for the 
first three years of the safeguard measure. To be clear: Article XIX of the GATT 1994 could  be 
invoked by a Member  to depart temporarily from its commitments in order to take emergency action 
with respect to increased imports. The United States, however, was not invoking Article XIX as a 
basis for its Section 232 actions. Thus, Article XIX and the Safeguards Agreement  were not relevant 
to the US actions under Section 232, and the United States ha d not utilized its domestic law on 
safeguards to take the actions under Section 232. Because the United States was not invoking 
Article  XIX, there was no basis for another Memb er to pretend that Article XIX should have been 
invoked and to use safeguards rules that were simply inapplicable. The additional, retaliatory duties 
were nothing other than duties in excess of India 's WTO commitments and were applied only to the 
United  States, contrary to India 's MFN obligation. The United States would  not permit its businesses, 
farmers, and workers to be targeted in this WTO -inconsistent way. For these reasons, the 
United  States request ed that the DSB establish a panel to examine this mat ter with standard terms 
of reference.  
5.3.  The representative of India said that his country was disappointed with the United States  for 
deciding to move  forward with  the present request for the establishment of a panel on India's 
measures concerning additiona l duties on certain products from the United States. India believe d 
that consultations held with the United States on 1 August 2019 had been  constructive. During these 
consultations, India , proactively and in good faith , had explained its measures. The Uni ted States 
had imposed additional duties on aluminium and steel articles through presidential  proclamation s 
number 9704 and 9705 dated 8 March 2018 and their related and successive measures. India had 
requested consultations under Article 12.3 of the Agree ment on Safeguards on 17 April 2018. On 
18 April 2018, the United States had declined the request for consultations. Therefore, pursuant to 
Article 12.5 of the Agreement on Safeguards, on 18 May 2018, India had notified its proposed 
suspension of concessions and other obligations referred in Article 8.2 of the Agreement of 
Safeguar ds to the WTO. On 13 June 2018, India had submitted a revision in the list of goods on 
which concessions and other obligations were proposed  to be suspended. India note d that several 
Members, including India, h ad initiated disputes against the additional d uties on aluminium and steel 
articles imposed by the United States through presidential  proclamations 9704 and 9705 dated WT/DSB/M/434  
 
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 8 March 2018 , and their related and successive measures. India consider ed that these additional 
duties were nothing but disguised safe guard measures to protect the US domestic industry. At the 
same time, the United States ha d also brought disputes against the suspension of concessions and 
other obligations by several Members, that currently  include d India, which these Members had 
adopted  in response to the US safeguard measures. The core issue in all these disputes was whether 
the US measures were safeguard measures. In the present dispute, brought by the United States, 
the United States ha d made claims only under Articles 1 and 2 of the GATT 1994, and d id not refer 
to the actual controlling provisions , that is, Article 19.3(a) of the GATT 1994 and Article 8 of the 
Agreement on Safeguards. It was clear that re-balancing in response to a safeguard measure f ell 
within the ambit of Article 19 .3(a) of the GATT 1994 and Article 8 of the Agreement on Safeguards. 
The United States  was not entitled to modify or suspend its schedules in order to protect its domestic 
industries at will and without consequence. For these reasons, India was confident t hat it would 
prevail in this dispute and that its actions would be declared a permitted and proportionate response 
to the US safeguard measures disguised as national security measures. India d id not accept the 
establishment of a panel at the present meetin g in this dispute.  
5.4.  The representative of China  said that his country noted that this dispute relate d to a WTO 
Member 's re-balancing measures in response to Section 232 measures adopted by the United States. 
As China had  explained on many occasions, Section 232 measures were disguised safeguard 
measures. They were aimed at the protection of  US domestic sectors by using tariffs  to limit steel 
and aluminium  imports. China  recall ed that nine Members ha d brought Section  232 measures to the 
dispute settlement proceedings and seven Panels were currently conducting scrutiny regarding  these 
issues . The unprecedented number of complaint s and the wide attention granted to this matter 
throughout  the world could suggest a general opposition to US unilateralism. In that regard, China 
support ed that Members wished to safeguard their legitimate interests by taking re -balancing 
measures in acco rdance with WTO rules.  
5.5.  The representative of the European Union  said that the  DSB ha d already considered the 
previous US panel requests that were similar to the one tabled at the present meeting  against India. 
The EU ha d spoken in relation to the US panel request that related to the EU's suspension of 
equivalent GATT obligations in response to the undeclared safeguard measures which the 
United States had taken  in support of its steel and aluminium industries. The EU welco med the fact 
that India, like quite a number of other WTO Members, ha d resorted to its right to suspend equivalent 
obligations vis -à-vis the United States. The EU look ed forward to defending, before the established 
Panels, its right and the right of other WTO Members to suspend equivalent obligations , and to 
defending the rules -based multilateral trading system.  
5.6.  The DSB took note of the statements and agree d to revert to this matter  should a requesting 
Member wish to do so . 
6  MOROCCO – DEFINITIVE  ANTI -DUMPING MEASURES ON SCHOOL EXERCISE BOOK S 
FROM TUNISIA  
A. Request  for the establishment of a panel by Tunisia (WT/DS578/2)  
6.1.  The Chairman  drew attention to the communication from Tunisia contained in document 
WT/DS578/2 . He then invite d the representative of  Tunisia to speak.  
6.2.  The representative of Tunisia  said that t he Tunisian delegation, on 9 September 2019, had 
submitted to the DSB a communication requesting the establishment of a panel to examine the 
matter  of definitive anti -dumping measures taken by Mor occo on school exercise books from Tunisia. 
This was the first dispute that Tunisia ha d brought to the WTO. First, Tunisia wished  to underscore 
the following. Consultations relating to definitive anti -dumping measures taken by Morocco on school 
exercise bo oks from Tunisia had taken place at the WTO on 11 and 12 June 2019. On 22 May 2019, 
Tunisia had submitted to Morocco a questionnaire with 71 questions concerning the allegations listed 
in its request for consultations . The parties addressed most of the questions during the consultations 
and then held a small group meeting to seek a mutually acceptabl e solution to this dispute. The 
discussions had not led to the settlement  of this dispute . From Tunisia's  standpoint, the consultations 
seem ed to corroborate the multiple  preoccupations of Tunisia as to the anti -dumping measures at 
issue, in terms of the launch  of the investigation , in terms of the analysis of dumping, injury and 
causal link, as well as procedur e. Thus, Tunisia ha d decided to bring this dispute before  a panel. In 
view of  Tunisia's  experience with this brotherly country, this option would be st protect Tunisia's legal WT/DSB/M/434  
 
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  interests. The dispute had unfortunately not been resolved through direct exchanges  between the 
two countries. As such, the assistance of a third party to seek a solution in this dispute seem ed 
necessary at this stage. In its request for the establishment of a panel, Tunisia had  decided  to pursue 
the most salient allegations. Tunisia would not wish to  discuss these in  detail at this stage. In 
conclusion, Tunisia requested that the DSB establish a panel to examine this matter . This panel 
request was without prejudice to the parties' right to potentially use conciliation or mediation 
pursuant to Article 5 of the DSU. Tunisia hope d to resolve this matter  with its brotherly country as 
soon as possible.  
6.3.  The representative of Morocco  said that his country deeply regret ted Tunisia's decision to 
request the establishment of a panel in the context of this dispute. Morocco consid ered that the 
anti-dumping duty challenged by Tunisia had been  applied pursuant to Members'  obligations under 
Article VI of the GATT 1994 and under the WTO Agreement on the Implementation of this Article. 
As Morocco had  indicated to Tunisia in the course o f previous discussions, the matter at issue  
between Tunisia and Morocco  was limited  to technical considerations  that should not have led the 
two countries  to engag e in formal dispute settlement proceedings at the WTO . During  the 
consultations, Morocco  had demonstrated  flexibility and had proposed constructive solutions as well 
as fair options to resolve this dispute. Morocco  wishe d to underscore that Tunisia's allegations 
affect ed the ability and rights of Moroccan authoritie s, as well as those of other least-developed 
countries ( LDCs) and developing countries , to defend themselves in the future against potential 
distortions caused by much larger trading partners. Finally , in view of Morocco's  willingness to pursue 
efforts to resolve this dispute amicably rather than through litigation, Morocco was  not in a position 
to accept the establishment of a panel at the present  meeting. Morocco  wished to have  more time 
to reach a mutually satisfactory solution in order to resolve this i ssue amicably.  
6.4.  The DSB took note of the statements and agree d to revert to this matter.  
7  UKRAINE – ANTI -DUMPI NG MEASURES ON AMMON IUM NITRATE  
A. Report of the Appellate Body ( WT/DS493/ AB/R and WT/DS493/ AB/R/Add.1) and 
Report of the Panel ( WT/DS493/ R; WT/DS493/ R/Add.1 and WT /DS493/ Corr.1)  
7.1.  The Chairman  drew attention to the communication from the Appellate Body contained in 
document WT/DS493/9 transmitting the Appellate Body Report in the dispute: "Ukraine – 
Anti-Dumping Measures on Ammonium Nitrate ", whic h had been  circulated on 12 September 2019 
in document WT/DS493/AB/R and Add.1. He remind ed delegations that the Appellate Body Report 
and the Panel Report pertaining to this dispute had been circulated as unrestricted documents. As 
Members were aware, Art icle 17.14 of the DSU require d that: " An Appellate Body report shall be 
adopted by the DSB and unconditionally accepted by the parties to the dispute unless the DSB 
decides by consensus not to adopt the Appellate Body report within 30  days following its ci rculation 
to Members. This adoption procedure is without prejudice to the right of Members to express their 
views on an Appellate Body report".   
7.2.  The representative of  the Russian Federation  said that her country  welcome d the Report of the 
Appellate Body in this dispute and wishe d to present compliments to the Panel and Appellate Body 
members for their well -thought and forward -looking findings and conclusions in this dispute. The 
Russian Federation also wished to present c ompliments to the WTO Secretariat team for its hard 
work in this dispute . The results of this dispute were vital and beneficial for the entire  WTO 
Membership. Its outcome contribute d to the resolution of highly important issues of application and 
interpret ation of certain provisions of the Anti -Dumping Agreement, inter alia  Articles 2.2 and 
2.2.1.1, in line with the findings in the "EU – Biodiesel " dispute (DS473) . The Russian Federation 
wished  to draw attention of the WTO Members specifically to the follow ing issues.  
7.3.  First, Russia wished to discuss  the application and interpretation of Article 2.2.1.1 of the 
Anti-Dumping Agreement , the problem s relating to the  application and interpretation of 
Article 2.2.1.1 had been  considered  back in 2002. In document TN/RL/W/10 dated  18 June 2002, 
the group of countries that called themselves "Friends of Anti -Dumping Negotiations " or "FANs" had 
stated: "[t]his provision is not specific enough to clarify the circumstances in which authorities may 
reject or adjust cost data as maintained in the producer 's own cost accounting records. This 
ambiguity allows the authorities to reconstruct a producer 's costs arbitrarily… ". "FANs" were 
concerned that : "this reconstruction of costs could also create a rtificial dumping margins ". Ambiguity WT/DSB/M/434  
 
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 over the interpretation of Article 2.2.1.1 of the Anti -Dumping Agreement had led to the situation in 
the current dispute, in which  the Ukrainian investigating authorities had found a way to self -servingly 
interpret the  language of th at provision, in order to unlawfully reject the recorded costs of Russian 
exporters and create an artificial basis for higher anti -dumping duties. Moreover, the insufficient 
clarity specific  to the interpretation of Article  2.2.1.1 inspire d some other Members to create a 
universe of reasons to reject exporters ' costs that satisf ied the conditions in the first sentence of 
that Article, which led to  the imposition of anti -dumping duties inconsistent with their WTO 
obligations.  
7.4.  Second, with respect to the interpretation and application of Article 2.2 of the Anti -Dumping 
Agreement, Russia said that the Appellate Body had concluded that , in its determinati on of the 
normal value , "an investigating authority has to ensure that the information it collects is used to 
arrive at the cost of production in the country of origin ". Therefore, in order to comply with this 
obligation under Article 2.2 , investigating au thorities should adapt the information specifically to 
reflect the costs in the country of origin. This dispute illustrated  how dangerously far from the text 
of the Anti -Dumping Agreement certain Members attempt ed to go when  search ing for costs data in 
their determination of the normal value. However, Russia asked whether there was anything in the 
text of the Anti -Dumping Agreement  that allow ed an investigating authority to prefer surrogate 
prices for inputs and to make some sort of cost adjustments using t hese surrogate prices, which in 
fact reflect ed anything but the costs of production incurred by producers in the country of origin . 
The answer was "nothing ". Russia also asked what could  better reflect the cost s of production in the 
country of origin than the duly recorded costs of the producers . The answer was also "nothing ".  
7.5.  Russia said that t he text of the Anti -Dumping Agreement should  not be compromised. Its 
provisions had to be respected. The balance betwee n rights and obligations of exporters and 
investigating authorities had to  be maintained. It was also noteworthy that the outcome of the 
present dispute  confirm ed the  lawful and truthful understanding of differences in the text and 
function between Article  2.2 of the Anti -Dumping Agreement and Article 14(d) of the 
SCM Agreement. Consequently, the Appellate Body had concluded that some of its  interpretations 
of the SCM Agreement "are not relevant to the interpretive exercise under Article 2.2 ". As a general 
comment, the Russian Federation wished  to note that the interpretation and application of provisions 
should not be influenced by forum shopping considerations. The objective foundation, on which the 
whole WTO legal system stood , had to  be maintained. On ce more, Russia wished  to pay tribute to 
the decision s of the Panel and the Appellate Body for not allowing the flooding of  international trade 
with unlawful anti -dumping practices and for contributing to the security and predictability of the 
multilateral tr ading system. Any attempted trick using  the text of the Anti-Dumping Agreement  was 
akin to  juggling  a chainsaw , which  could  strike back with an unpleasant surprise. At the present 
meeting,  Russia respectfully request ed that  the DSB adopt the Appellate Body Report pursuant to 
Article 17. 14 of the DSU and the Panel Report in this dispute . The Russian Federation hope d that 
Ukraine would  comply with the DSB's recommendations and rulings that were requested to be 
adopted at the p resent meeting . 
7.6.  The representative of Ukraine  said that her delegation thank ed the Appellate Body, the Panel 
and the Secretariat for their hard work in this dispute . Ukraine further thank ed all third parties for 
their constructive participation during the course of the proceedings. Ukraine appreciate d the fact 
that the Appellate Body and the Panel had upheld the general framework of Ukrainian anti -dumping 
law and practice. Ukraine was also p leased that the Appellate Body and the Panel had upheld the 
principle of cost adjustment methodology . Ukraine  took note of  the Appellate Body's clarification 
that the second condition in the first sentence of Article 2.2.1.1 of the Anti -Dumping Agreement 
contain ed no separate standard of reasonableness which  govern ed the meaning of the term "costs" 
itself. This would allow investigating authorities to disregard domestic input prices when such prices 
were lower than other prices internationally.3 Ukraine als o took note of the Appellate Body's 
clarification that Article 2.2 of the Anti -Dumping Agreement did not preclude an investigating 
authority from adapting information it collect ed as long as the investigating authority ensure d that 
such information was used to arrive at the "cost of production in the country of origin".4 Ukraine 
further welcome d the fact that the Panel had rejected the majority of the remainder of the claims of 
the Russian Federation, inter alia , the claims that Ukrainian authorities would have acted 
inconsistently with Articles 11.1, 11.2, and 11.3 of the Anti -Dumping Agreement, in connection with 
the Ukrainian authorities' determination of, and reliance on, injury allegedly not established in 
accordance with Articles 3.1 and 3.4 of the Ant i-Dumping Agreement in making their 
                                                
3 Appellate Body Report, "Ukraine -Ammonium Nitrate" (Russia), para. 6.124.  
4 Appellate Body Report, "Ukraine -Ammonium Nitrate" (Russia), para. 6.128.  WT/DSB/M/434  
 
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  likelihood -of-injury determination. Having said all that, Ukraine was concerned as to the Panel and 
the Appellate Body's analysis and justification with respect to the assertions that the 2008 amended 
decision and the 2010 amendment had been  "identified" as measures at issue in Russia's panel 
request and had been  allegedly within the Panel's terms of reference. Furthermore, Ukraine was 
disturbed with the Panel and the Appellate Body's findings that the " combined effect" of the court 
judgments and the 2010 amendment had been  that the dumping margin for EuroChem in the original 
investigation phase had been  de minimis ,5 as neither the 2010 amendment nor the judgments of 
Ukrainian Courts had ever stated or co ncluded that the dumping margin in question had been  
de minimis . Regardless, Ukraine emphasize d that it intend ed to fully comply with the relevant WTO 
rules and its obligations under the DSU.  
7.7.  The representative of the United States  said that t he United Sta tes wishe d to raise an important 
systemic concern. The United States consider ed that very serious issues were raised by the failure 
of the Appellate Body to follow the mandatory 90 -day deadline in Article 17.5 of the DSU and the 
continued service on this a ppeal of an individual who had ceased to be a member of the Appellate 
Body during the appeal, including with respect to the status of such a report. As the document ha d 
not been issued by three Appellate Body members and had not been issued within 90 days,  
consistent with the requirements of Article 17 of the DSU, it was not an "Appellate Body report " 
under Article 17, and therefore it was not subject to the adoption procedures reflected in 
Article  17.14. For this item,  the United States  did not understand any party to oppose adoption of 
the reports, nor ha d any other WTO Member raised an objection. The aim of the dispute settlement 
system was to find a positive solution to the dispute. As neither party to the dispute ha d objected, 
the United  States  underst ood that the parties consider ed that adoption of the reports would assist 
them in finding a positive solution. The United States  would seek to support the parties ' interests on 
this issue. Therefore, there was a consensus to adopt the report s before the DSB at the present 
meeting .  
7.8.  The DSB took note of the statements and adopted  the Appellate Body Report contained in 
WT/DS493/AB/R and Add.1 and the Panel Report contained in WT/DS493/R, Add.1 and Corr. 1, as 
upheld by the Appellate Body Report . 
8  KOREA – ANTI -DUMPING  DUTIES ON PNEUMATIC  VALVES FROM JAPAN  
A. Report  of the Appellate Body (WT/DS504/AB/R and WT/DS504/AB/R/Add.1) and 
Report of the Panel (WT/DS504/R and WT/DS504/R/Add.1)  
8.1.  The Chairman  drew attention to the communication from the Appellate Body contained in 
document WT/DS504/9 transmitting the Appellate Body Report in the dispute: "Korea – 
Anti-Dumping Duties on Pneumatic Valves from Japan", which was circulated on 10 September 2019 
in docum ent WT/DS504/AB/R and Add.1. He wished  to remind delegations that the Appellate Body 
Report and the Panel Report pertaining to this dispute had been circulated as unrestricted 
documents. As Members were aware, Article  17.14 of the DSU require d that: " [a]n Appellate Body 
report shall be adopted by the DSB and unconditionally accepted by the parties to the dispute unless 
the DSB decides by consensus not to adopt the Appellate Body report within 30  days following its 
circulation to Members. This adoption proce dure is without prejudice to the right of Members to 
express their views on an Appellate Body report".  
8.2.  The representative of  Japan  said that his country  wishe d to express its appreciation for the 
time and effort devoted to this dispute  by the Panel, the Ap pellate Body and their respective 
Secretariats . Japan welcome d the findings by the Appellate Body and the Panel , as modified by the 
Appellate Body, that Korea 's measures imposing anti -dumping duties on pneumatic valves from 
Japan were inconsistent with the  Anti-Dumping Agreement, and their recommendations that Korea 
bring its measures into conformity with its obligations under the Anti -Dumping Agreement. Japan 
therefore request ed that the Reports be adopted by the DSB. The Appellate Body had ruled in favo ur 
of Japan with respect to nearly  all of the issues that had been raised in this appeal. In particular, 
Japan 's core claims in this dispute  include d the lack of price comparability between Japanese valves 
with higher values and functions, on the one hand, and Korean low -end domestic valves, on the 
other  hand. Both the Panel and the Appellate Body had determined that Korea had failed to ensure 
price comparability either under Article 3.2 or Article 3.5 of the Anti -Dumping Agreement, and thus 
                                                
5 Appellate Body Report , "Ukraine -Ammonium Nitrate" (Russia) , para. 6 .57. WT/DSB/M/434  
 
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 had failed to de monstrate that the import s from Japan had actually caused injury to Korea 's domestic 
industry. Also, the Appellate Body had upheld the Panel 's findings that Korea had failed to comply 
with the requirement to appropriately treat confidential information in its investigations under 
Articles 6.5 and 6.5.1 of the Anti -Dumping Agreement.  
8.3.  Japan call ed on Korea to fully and promptly implement the DSB 's recommendations and rulings 
in accordance with the Article 21 of the DSU following the adoption of the reports without maintaining 
or introducing any measure which would undermine their implementation. Another key feature of 
the Appellate Body Report had been  the reversals of the Panel 's erroneous findings on its terms of 
reference under Article 6.2  of the DSU . Spec ifically, accepting Japan 's appeal on this jurisdictional 
issue, the A ppellate Body had reversed the Panel 's erroneous decision not to rule on Japan 's claims 
under various provisions including Article s 3.2, 3.4, 4.1 and 6.9 of the Anti -Dumping Agreement  on 
the basis that these claims fell  outside of its terms of reference. Since the WTO dispute settlement 
system serve d to achieve a satisfactory settlement of disputes between Members, a panel 's 
erroneous decision not to rule on key issues on jurisdictiona l ground s not only contradict ed the 
established jurisprudence , but was also contrary to the very objective of the dispute settlement 
system. Japan highly appreciate d the Appellate Body 's correct  decision on this issue.  
8.4.  Japan note d that a Korean government official had made  a comment in a newspaper column 
asserting  that: "[t]he core element of this case is whether Korea could continue the anti -dumping 
duty, and it was effectively decided that Korea could ". This comment simply defie d the Appellate 
Body's conclusion s. Japan  was puzzled by this groundless contention. Indeed, nowhere in the Report 
did the Appellate Body allow Korea to "continue the anti -dumping duty ". Rather, the Appellate Body 
had clearly determined the WTO -inconsistenc y of Korea 's anti -dumping measures at issue and had 
recommend ed that Korea bring its measures into conformity with the substantive provisions of the 
Anti-Dumping Agreement. Korea 's assertion would defy the Appellate Body 's recommendation and 
would run counter to the very objective of the dispute settlement system to r esolve a dispute. It 
was also regrettable that some Korean officials had characterized the Report as one in which Korea 's 
arguments had prevailed by counting and comparing the number of claims in respect of which  the 
Appellate Body had made findings of WTO-inconsistency had been  and the number of claims in 
respect of which no such finding had been made . To be clear, under the Anti -Dumping Agreement, 
in order to impose an anti -dumping duty, an importing Member had to  establish : (i) the existence 
of dumping; (ii) injury to the domestic industry; (iii) causation between the dumping and the injury; 
through (iv)  an appropriate procedure of anti -dumping investigation. The lack of even one out of 
these four core legal requirements would legally prevent the Member f rom imposing anti -dumping 
duties. Ultimately, it was not in the mere number of claims and arguments that the Panel and the 
Appellate Body had ruled in favo ur or against. Rather, it was whether or not the measures at issue  
had fulfilled all the requirements  of the WTO Agreement. In this dispute, Korea 's anti -dumping 
measures had not. Finally, Japan believe d that these findings would lead to a definitive resolution of 
this dispute.  Japan st ood ready to engage in dialogue with Korea in a constructive manner in  the 
coming weeks , with a view to achieving prompt and full compliance by Korea with the DSB 's 
recommendations and rulings so as to secure a positive solution to this dispute.  
8.5.  The representative of Korea  said that his country  welcome d the Appellate Body Report in this 
dispute . Korea found  it important that the Appellate Body ha d properly upheld the Panel 's rejection 
of Japan 's claim that an investigating authority had to  conduct a "but for " test by estimating the 
impact of dumped impor ts on the domestic industry absent "dumping ", i.e., where the dumped 
imports were imported at their normal value. Had Japan 's claim been upheld, investigating 
authorities around the globe would have been faced with an unduly burdensome, if not near ly 
impos sible, task of having to simulate the precise economic impact of dumping margin s in each and 
every injury investigation. As found by the Panel, and as rightly maintained by the Appellate Body, 
such a mandatory counterfactual analysis ha d no place under Art icle 3 of the Anti -Dumping 
Agreement.  Korea also support ed the Appellate Body 's finding upholding a key claim made on appeal 
by Korea regarding the Panel 's causation -related finding. At the request of Korea, the Appellate Body 
had rightly reversed the Panel 's finding that price effect analysis undertaken by the Korea Trade 
Commission (KTC) had violated A rticle 3.5 of the Anti -Dumping Agreement, which requir ed the 
establishment of  a causal link between the dumped import s and injury to the domestic industry. 
Together with the findings of the Panel that had been  upheld, the Appellate Body had thus confirmed 
that Japan ha d failed  to demonstrate that the KTC 's causation analysis had been  in any way 
inconsistent with Article 3.5. In addition, Korea note d with satisfaction that the Appellate Body had 
reduced the claimed inconsistency in respect of an aspect of the price effects analysis undertaken 
by the KTC to a te chnical matter about the need for additional reasoning and consideration, without WT/DSB/M/434  
 
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  finding fault with the overall price and injury analysis as such. Korea w ould take this guidance for 
additional explanation and consideration on board as it implement ed the DSB's recommendations 
and rulings in this dispute.   
8.6.  Korea respectfully disagree d with Japan to the extent that Japan suggest ed that Korea had to  
necessarily terminate its anti -dumping measure on pneumatic valves from Japan in order to comply 
with the Appell ate Body Report.  The Panel and the Appellate Body had collectively found that in 
10 out of its 13 claims, Japan ha d failed to demonstrate that Korea 's anti -dumping measure was 
inconsistent with any of the provisions of the Anti -Dumping Agreement. Aside from the 
two procedural matters that had been  faulted, only one substantive flaw ha d been recognized by the 
Panel and the Appellate Body. Korea consider ed that nothing in these Reports of the Panel and 
Appellate Body suggest ed that the only way to implement the rulings was to withdraw the measure. 
In fact, given the very limited nature of the technical concerns expressed with only one aspect of 
the injury analysis , and given the c onfirmation of the consistency of the KTC 's causation analysis, it 
was clear that there was no basis for such a suggestion. In addition, Korea note d that Japan could 
have, but had not, request ed the Panel or Appellate Body to make such a suggestion. Korea also 
noted that Japan had decided not to object to  the KTC 's dumping margin calculation  from the 
beginning, and thus Korea would not be  under the obligation to adjust or modify its anti -dumping 
duty due to the Appellate Body Report.   
8.7.  Korea said that Japan insisted that the Appellate Body  had found the KTC's definition of 
domestic industry to be  inconsistent with the Anti -Dumping Agreement. However, Japan was 
completely mistaken in this regard. The Appellate Body had never found that the KTC 's definition of 
domestic industry had been  inconsistent with the Anti -Dumping Agreement. While the Appellate 
Body had reverse d the Panel 's finding that the claim under Art icles 3.1 and 4.1 had been  outside of 
the Panel 's terms of reference, the Appellate Body had decided not to complete the legal analysis.  
In addition, the Appellate Body had reverse d the Panel's finding in relation to Article 6.2 of the DSU 
for five claims but had nevertheless decided not to complete the analysis for four claims. The one 
claim for which the Appellate Body had complete d the analysis only relate d to the methodological 
flaws of the KTC 's price effect analysis.  For all of the reasons just explai ned, therefore, it was hard 
to find any substantial implication in the reversal.  As Korea had  already explained, the Appellate 
Body's finding of inconsistency was limited to "some" methodological flaws in the KTC's price effect 
analysis and a procedural ma tter. It was simply incorrect to assert that the corollary of the 
methodological flaws with limited implication s found by the Appellate Body  was the complete 
termination of the current anti -dumping measure. Such a bold assertion would call for a fundamenta l 
change in the notion under which the Members had implement ed WTO rulings.  All in all, Korea 
welcome d the Appellate Body 's ruling that mostly upheld Korea 's position.  Korea believe d that the 
Appellate Body Report in this dispute was  yet another example of the value and utility of the appeal 
mechanism  in the multilateral trading system. Korea wished to take this moment to reiterate its 
commitment to support ing a properly functioning Appellate Body.  Finally, Korea confirm ed its 
willing ness to faithfully implement the rulings of the Appellate Body in this dispute  within a 
reasonable period of time pursuant to A rticle 21 of the DSU.  
8.8.  The representative of Japan  said that, u nder the Anti -Dumping Agreement, in order to impose 
an anti -dumping  duty, an importing Member had to  establish four core requirements: (i) the 
existence of dumping; (ii) injury to the domestic industry; (iii) causation between the dumping and 
the injury; through (iv) an appropriate procedure of anti -dumping investigations . The lack of even 
one out of these four core legal requirements would legally prevent the Member from implementing 
anti-dumping duties. The Appellate Body 's findings include d Korea 's failure to demonstrate the price 
comparability , which relate d to the thi rd element of causation, and Korea 's failure to properly treat 
confidential information , which relate d to the fourth element of due process. This mean t that Korea 's 
measures ha d failed to meet the fundamental requirements under the Anti -Dumping Agreement. 
Korea 's statements were misleading. Such an approach might also foster the abuse of protectionist 
trade remedy measures around  the world. Moreover, Japan wished  to clarify that Korea 's comments 
on its "win" in "10 out of 13 " claims were not only misleading but were simply factually incorrect. 
Out of 13 claims , as set out in the Japan 's panel request in this dispute , six were with respect to the 
investigations on the injury to the domestic industry and on its causation with the dumping. T he 
Appellate Body had accepted Japan 's core claim and argument, i.e. , the lack of price comparability 
and price effect, and had ruled unequivocally that Korea ' investigating authority had acted 
inconsistently with Article 3.2 of the Anti -Dumping Agreement.  Facing the same facts and legal 
arguments, the Panel had applied Article 3.5 to Korea 's violation, but the Appellate Body had WT/DSB/M/434  
 
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 corrected the relevant provision from Article 3.5 to Article 3.2. Korea seem ed to insist on its "win" 
in this issue, only based o n this technical shift in the relevant Article to be applied from Article 3.5 
to Article 3.2. This shift d id not change the substance of Korea 's breach of its WTO obligations or its 
implementation obligations. Importantly, Japan 's core claim on the lack of  price comparability 
between Japanese valves with higher value and functions, on the one hand, and Korean low -end 
domestic valves, on the other  hand, had been  affirmed by both the Panel and the Appellate Body. 
Japan  believed that it was not just a methodol ogical fraud : it was a substantive fraud. Korea 
ultimately  had been  found to have failed to confirm the price comparability and  to have failed to 
demonstrate that the import s from Japan had actually caused injury to the Korean domestic industry. 
Korea, therefore , had to  fundamentally correct its WTO -inconsistent measure in order to comply 
with the DSB 's recommendations and rulings  in this dispute .  
8.9.  The representative of Korea  noted  that it was  simply incorrect for Japan to assert that a 
corollary of the two methodological flaws with limited implication s was a complete termination of the 
current anti -dumping measure. Korea, therefore, disagree d with Japan 's suggestion that Korea had 
to terminate, or otherwise essentially modify or adjust, its anti -dumping measure on pneumatic 
valves from Japan in order to comply with the Appellate Body Report . Korea confirm ed its willingness 
to faithfully implement the rulings of the Appellate Body within a reasonable period of time pursuant 
to Article 21 of the DSU.   
8.10.   The representative of the European Union  wished to note the EU's position with respect to 
two elements of the Appellate Body Report. First , the EU recalled that t he Appellate Body said in this 
dispute  that: "[a]s soon as price comparisons are made, price comparability necessarily arises as an 
issue". The EU agree d that price comparability was an essential element that deserve d careful 
examination in the context of an investigation under the A nti-Dumping  Agreement.  The second point 
was in relation to the appellate  findings on the Panel's terms of reference . The EU agree d with the 
Appellate Body's statement that : "[s]pecifically, the reference to the phrase 'how or why ' in certain 
past disputes d id not indicate a standard different from the requirement that a panel request include 
a 'brief summary of the legal basis … sufficient to present the problem clearly ' within the meaning 
of Article 6.2 of the DSU" which had been  at the heart of the Panel's reasoning.   
8.11.   The representative of the United States  said that t he United States wishe d to raise an 
important systemic concern. The United States consider ed that very serious issues were raised by 
the failure of the Appellate Body to follow the mandatory 90 -day deadline in Article 17.5 of the DSU, 
and the co ntinued service on this appeal of an individual who had ceased to be a member of the 
Appellate Body during the appeal, including with respect to the status of such a report. As the 
document ha d not been issued by three Appellate Body members and had not been issued within 
90 days, consistent with the requirements of Article 17 of the DSU, it was not an "Appellate Body 
report " under Article 17, and therefore it was not subject to the adoption procedures reflected in 
Article 17.14. For this item, the United S tates did not understand any party to oppose adoption of 
the reports, nor ha d any other WTO Member raised an objection. The aim of the dispute settlement 
system was to find a positive solution to the dispute. As neither party ha d objected, the United  State s 
underst ood that the parties consider ed that adoption of the reports would assist them in finding a 
positive solution. The United States  would seek to support the parties ' interests on this issue. 
Therefore, there was a consensus to adopt the reports befo re the DSB at the present meeting .  
8.12.   The representative of  Canada  said that, a s a general matter, Canada wished  to note that 
Appellate Body reports that were issued passed ninety days were still Appellate Body reports subject 
to the negative consensus rule of Article 17.14 of the DSU. 
8.13.   The representative of China  said that t his statement relat ed to Agenda items 7 and 8. China 
noted that the United States had suggested the negative consensus rule c ould not  be applied to the 
adoption of this Report since it had not been circulated within 90 days and one of the adjudicator s 
had ceased to be an Appellate Body member before  the Report had been  circulated. China  disagree d 
with this.  China wished  to stress that t he Report before the DSB was an Appel late Body Report that 
had to  be adopted under the negative consensus rule set out in Article 17.14 of the DSU.  
Article  17.14 of the DSU was crystal clear that : "An Appellate Body report shall be adopted by the 
DSB and unconditionally accepted by the parties to the dispute unless the DSB decides by consensus 
not to adopt the Appellate Body report within 30 days following its circulation to the Members ". 
Members had the right to express their views on any Appellate Body report. However, as a matter 
of law, whatever Members said, whatever they d id and whatever was recorded in the minutes of the 
DSB meeting was incapable of negating the unconditional application of the negative consensus rule WT/DSB/M/434  
 
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  provided for in Article 17.14 of the DSU. At the present meeting, there was no consensus among 
Members not to adopt this Appellate Body Report . Therefore, this Appellate Body Report had to  be 
adopted in accordance with Article 17.14  of the DSU. Any suggestion to derogate from the application 
of the negative consensus rule or impose precondition to it was without legal merit.  
8.14.   The representative of the European Union  said that t he United States ha d made certain 
statements both under t his Agenda item and under the previous Agenda item  by referring to 
Article  17.14 of the DSU . The EU wished  to respond to these statements . The EU had noted that the 
Chairman had  introduced these two Agenda items with a reference to Art icle 17.14 of the DSU. 
Indeed, that Article provide d that Appellate Body reports were to be  adopted by the DSB an d 
unconditionally accepted by the parties. The only circumstance in which this d id not occur was if the 
DSB decide d by consensus not to adopt the Appellate Body report. This was not happening at the 
present meeting , because the EU did not, and would not , join such a consensus. As China ha d just 
mentioned, neither the defending party, nor a ny other WTO Member, not even the Chairman of the 
DSB or the WTO Secretariat ha d the legal authority to prevent this from happening by any means. 
Whatever any defending party or other Member might  say, whatever they d id, whatever was 
recorded in the minute s was incapable , as a matter of law , of negating the observation that what 
was provided for in Article 17.14 of the DSU ha d occurred.  
8.15.   The DSB took note of the statements and adopted  the Appellate Body Report contained in 
WT/DS504/AB/R and Add.1 and the Panel Report contained in WT/DS504/R and Add.1, as modified 
by the Appellate Body Report.  
9  PROPOSED NOMINATION FOR THE INDICATIVE L IST OF GOVERNMENTAL AND 
NON-GOVERNMENTAL PANELIS TS (WT /DSB/W/652)  
9.1.  The Chairman  drew attention to document WT/DSB/W/652 which contain ed a new name 
proposed by Qatar for inclusion on the Indicative List of Governmental and Non -Governmental 
Panelists, in accordance  with Article  8.4 of the DSU. He then  propose d that the DSB approve the 
name contained in document WT/DSB/W/652.  
9.2.  The representative of Saudi Arabia  speaking  also on behalf of the Kingdom of Bahrain, Egypt 
and the United Arab Emirates, recall ed that  Article 2.4 of the DSU  stated that : "[w]here the rules 
and procedures of this Understanding provide for the DSB to take a decision, it shall do so by 
consensus" . Therefore , and after a careful review of the proposed nomination indicated in document 
WT/DSB/W/652 to be included on the Indicative List of Governme ntal and Non -Governmental 
Panelists, Saudi Arabia  and the three other Members on whose behalf it was making this statement  
had concluded that they did not support this no mination, and therefore d id not agree to include the 
proposed name on the Indicative List  of Governmental and Non -Governmental Panelists.  
9.3.  The representative of Qatar  said that, t o Qatar 's knowledge, this was the first time in the 
25-year history of the WTO and the DSB  that a delegat ion ha d objected to the nomination of a 
candidate for inclusion on the Indicative List. Qatar deeply regret ted that Saudi Arabia, Egypt, the 
UAE and Bahrain ha d chosen to use this opportunity to attempt to score political point s. By doing 
so, they  disrespe cted this institution and br ought  discredit to the delegation s of Saudi Arabia, Egypt, 
the UAE and Bahrain . Qatar  noted that Saudi Arabia, Egypt, the UAE and Bahrain ha d objected on 
the ground that the candidate was Qatari. As Article 8.9 of the DSU ma de clear, panelists serve d 
independently and in an individual capacity, and not as government representatives. This was not 
consistent with the nature of the WTO as a multilateral organization that Members could  veto 
individuals because of their nationality.  
9.4.  The Chairman  recalled that,  in order to add the name proposed by Qatar to the Indicative List 
of Governmental or Non -Governmental Panelists, this nomination ha d to be approved by the DSB 
pursuant to Article 8.4 of t he DSU, which stipulate d that: "Members may periodically suggest names 
of governmental and non -governmental individuals for inclusion on the indicative list, providing 
relevant information on their knowledge of international trade and of the sectors or sub ject matter 
of the covered agreements , and those names shall be added to the list upon approval by the DSB". 
As Members  were aware , such approval by the DSB require d to be done by consensus, as set out in 
Article 2.4 of the DSU, which stipulate d that: " Where the rules and procedures of  this Understanding 
provide for the DSB to take a decision, it shall do so by consensus" . He regret ted that, at the present 
meeting , it was not possible to take a decision on this matter.  
9.5.  The DSB took note  of the statements . WT/DSB/M/434  
 
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 10  APPELLATE BODY APPOI NTMENTS: PROPOSAL BY  ANGOLA; ARGENTINA; AUSTRALIA; 
BENIN; PLURINATIONAL  STATE OF BOLIVIA; B OTSWANA; BRAZIL; BUR KINA FASO; 
BURUNDI; CABO VERDE;  CAMEROON; CANADA; C ENTRAL AFRICAN REPUB LIC; CHAD; 
CHILE; CHINA; COLOMB IA; CONGO; COSTA RIC A; CÔTE  D'IVOIRE; CUBA;  DEMOCRATIC 
REPUBLIC OF CONGO; D JIBOUTI; DOMINICAN R EPUBLIC; ECUADOR; EG YPT; 
EL SALVADOR; ESWATINI; THE EUROPEAN UNION; GABON; THE GAMBIA; G HANA; 
GUATEMALA; GUINEA; G UINEA -BISSAU; HONDUR AS; HONG KONG, CHINA ; ICELAND; 
INDIA; INDONESIA; ISRAEL; K AZAKHSTAN; KENYA; RE PUBLIC OF KOREA; LES OTHO; 
LIECHTENSTEIN; MADAG ASCAR; MALAWI; MALAY SIA; MALI; MAURITANI A; MAURITIUS; 
MEXICO; MOROCCO; MOZ AMBIQUE; NAMIBIA; NE W ZEALAND; NICARAGUA ; NIGER; 
NIGERIA; NORTH MACED ONIA; NORWAY; PAKIST AN; PAN AMA; PARAGUAY; PERU;  QATAR; 
RUSSIAN FEDERATION; RWANDA; SENEGAL; SEY CHELLES; SIERRA LEON E; SINGAPORE; 
SOUTH AFRICA; SWITZE RLAND; THE SEPARATE CUSTOMS TERRITORY OF  TAIWAN, 
PENGHU, KINMEN AND M ATSU; TANZANIA; THAI LAND; TOGO; TUNISIA;  TURKEY; 
UGANDA; UKRAINE;  URUGUAY; THE BOLIVA RIAN REPUBLIC OF VEN EZUELA; VIET NAM; 
ZAMBIA AND ZIMBABWE (WT/DSB/W/609/REV.14 ) 
10.1.   The Chairman  said that t his item was on the Agenda of the present  meeting at the request of 
Mexico, on behalf of a number of delegations. He drew attention to the proposal contained in 
document WT/DSB/W/609/Rev.14 and invite d the representative of Mexico to speak.  
10.2.   The representative of Mexico , speaking on behalf of the co -sponsors of the joint proposal 
contained in document  WT/DSB/W/609/Rev. 14, said that the delegations in question had agreed to 
submit the joint proposal dated 19 September 2019 to launch the AB selection processes. Mexico  
welcome d Malaysia and Thailand as new co -sponsors of the joint proposal. Her delegation , on behalf 
of these 116 Members, wished to make the following statement . The increasing and considerable  
number of Members submitting this joint proposal reflect ed a common  concern with the current 
situation in the Appellate Body that was seriously  affecting its functioning  and the overall dispute 
settlement system against the best interest of its Members. WTO Members ha d the responsibility to 
safeguard and preserve the Appe llate Body, the dispute settlement system and the multilateral 
trading system. 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 
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 2017; a third process to replace Mr. Peter Van den 
Bossche, whose second term expired on 11 December 2017; a fourth process to replace Mr. Shree 
Baboo Chekitan Servansing, whose four -year term of office expired on 30 September 2018; 
a fifth process to replace Mr. Ujal Singh Bhatia, whose second term will expire on 
10 December  2019; and a sixth process to replace Mr. Thomas R. Graham whose second term 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 issue 
its recommendation within 60  days after the deadline for nominations of candidates ". The 
proponents were flexible with regard to  the deadlines for the AB selection processes , but believed  
that Members should consider the urgency of the situation. Mexico  continue d to urge all Members 
to support this proposal in the interest of the multilateral trading system and the dispute settlement 
system . 
10.3.   The representative of Thailand  said that his country appreciate d the continued efforts of 
Mexico and of all co -sponsors under this Agenda item in an attempt to fill the vacancies in the 
Appellate Body. Thailand  was, therefore, please d to co-sponsor the proposal contained in document  
WT/DSB/W/609/Rev. 14 with a view to resolving the current impasse. Thailand ha d expressed its 
concerns on this critical issue at various meetings, including at DSB meetings , and ha d also 
contributed to addressing s ome concerns to qualif ying certain aspects related to the  functioning of 
the dispute settlement process by submitting its own proposal , dated 25 April 2019  and contained 
in document WT/GC/W/769  on WTO dispute settlement , at the General Council meeting in 
April 2019. Given the urgency of the matter, Thailand was joining the other co -sponsors of the 
proposal on launching the AB selection process es with a view to ensuring the effective and smooth 
functioning of the WTO d ispute settlement system. Thailand remain ed committed to working 
constructively with all Members to resolve this matter as a priority.  WT/DSB/M/434  
 
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  10.4.   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 ha d a shared 
responsibility to resolve this issue as soon as possible. The EU wished to  thank all Members that ha d 
co-sponsored the proposal contained in document  WT/DSB/W/609/Rev. 14 to launch the AB selection  
processes. The EU  invite d all other Members to endorse this proposal  so that new AB members could 
be appointed as soon as possible . The EU also wish ed to recall that concrete proposals ha d 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 Chair.  
The EU  invite d all Members to engage constructively in these discussions so that the AB vacancies 
could be filled a s soon as possible.  
10.5.   The representative of the United States  thank ed the Chairman  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 the proposed decision. The  systemic concerns that  the United States had  
identified remain ed unaddressed. As the United States ha d explained at recent DSB meetings, for 
more than 16 years and across multiple US Administrations, the United States ha d been raising 
serious concerns wit h the Appellate Body 's overreaching and disregard for the rules set by WTO 
Members. The United States w ould 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 
Chairman  to seek a solution on these important issues.  
10.6.   The representative of Brazil  said that Brazil wished to refer to its statements made at previous  
DSB meetings  regarding the urgency of launching the AB selection process es. There was a very 
significant majority of WTO Members that formally support ed the pr oposal  contained in document  
WT/DSB/W/609/Rev. 14 under this Agenda item. Brazil, of course, support ed the immediate 
launching of the AB selection process es. Otherwise, the Membership w ould continue to be in breach 
of its collective obligation to preserve  a standing Appellate Body where vacancies  had to  be filled as 
they ar ose. Brazil,  therefore , invite d other WTO Members to join this proposal so that  Members  could 
meet their obligation with in a reasonable period of time.  Brazil  commend ed Amb. Walker  for his 
work under the informal process on AB matters that was taking place within the ambit of the General 
Council to facilitate the resolution of this impasse and look ed forward to engaging wit h Members in 
the next steps of that process.  
10.7.   The representative of Ecuador , speaking on behalf of the Group of Latin American and 
Caribbean countries (GRULAC) that were Members of the WTO, said that his delegation noted that 
now 116 Members support ed the proposal contained in document WT/DSB/W/609/ Rev.14. This 
growing number attest ed to the deep concern among Members of this Organization as to the current 
and prolonged impasse  in the AB selection process es. The disagreement regarding the  functioning  
of the Appellate Body d id not provide legitimate  justification  for blocking of the AB selection 
process es. As other Members ha d already mentioned at the present  meeting , and at prior DSB 
meetings , vacancies should be filled as they arose in accordance with  Article 17.2 of the DSU . This 
was an obligation of WTO Members, and Members  were currently in breach of that  obligation . The 
quest to improve to the functioning  of the dispute settlement system  should not serve as an obstacle 
to its operation . The December deadline was rapidly approaching and there was an urgent need to 
find a solution to  this problem. As such, Ecuador  acknowledge d Amb. Walker 's efforts as Facilitator  
in the informal process  on AB matters  and was grateful for his progress reports on th e informal  
process . Ecuador  reaffirm ed its full support of the informal  process and its willingness to continue to 
contribut e to the efforts of Members  that sought , as a matter of priority,  to unblo ck the AB selection 
processes .  
10.8.   The representative of  New Zealand  said that New Zealand wished to reiterate  its support for 
the co -sponsored proposal, emphasi zed the systemic importance of urgently commencing the 
AB selection process es and refer red to its statements made at prior DSB meetings  on this critical 
issue.  
10.9.   The representative of Norway  said that Norway was pleased to see that 116 Members  had 
signed as co -sponsors of the proposal  contained in document WT/DSB/W/609/ Rev.14 . A vast 
number of co -sponsors was to be expected, considering the fact that Members  had heard no 
objection to this proposal  other than that of the United States. Norway said that Members could,  of WT/DSB/M/434  
 
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 course , continue repeating their old speaking points under this Agenda item. He referred  to Norway 's 
statements  made at prior DSB meetings  on this matter.  However , it would be more appropriate  if 
Members  had some real conversations  and discussions  on this matter. F or this to happen  dependent 
on one Member only. By reiterating  that systemic concerns remain ed unaddressed d id not reflect 
the actual situation . Therefore, Norway  urged the United States to start real conversation s, which 
would  be constructive rather than destructive.  
10.10.   The representative of Indonesia  said that his delegation  wished to be associated with the 
statement made by Mexico on behalf of the co -sponsors to the proposal to launch the AB selection 
process es contained in document WT/DSB/W/609/Rev.14 . Indonesia was also a co-sponsor  of the 
proposal.  Indonesia  welcome d Malaysia and Thailand as the new co -sponsors . The increasing 
number of Members on board to support the launch of the AB selection process es was a testimony 
of the urgency of the situation. Indonesia  wished  to reiterate its serious systemic concern over the 
continued impasse in the AB selection process es. The circumstance ha d become more alarming since 
Members  were just 10 weeks away from the end of a fully functioning Appellate Body, if the 
AB selection process es were not immediately initiated. Hence, Indonesia wishe d to recall that WTO 
Members share d a common responsibility to immediately fill the AB vacancies, as  required by 
Article  17.2 of the DSU. In this regard, his delegation , once again, urge d all Members, to fulfil their 
responsibility to wards  this Organization, by starting the AB selection process es immediately.  
10.11.   The representative of Switzerland  said that h er delegation  wished to refer to its statements 
made at  previous DSB meetings  on this matter . The situation was alarming, and Switzerland deeply 
regret ted that the DSB was still unable to launch the AB selection process es. Switzerland fully 
support ed the informal process under the auspices of the General Council aim ed at finding concrete 
solutions. Once again, Switzerland  urged all Members to engage constructively in order to solve this 
impasse without further delay.  
10.12.   The representative of Canada  said that his country  support ed the statement made by Mexico, 
and share d the concerns expressed by many Members. Canada  welcome d Malaysia and Thailand 
that had joined the co -sponsors, raising the number of WTO Members calling for the launch of the 
AB selection processes to 116. The critical mass of WTO Members behind the proposal contained in 
document  WT/DSB/W/609/Rev. 14 was a testimony of the importance that Members  collectively 
accord ed to a fully functioning Appellate Body being part of the dispute settlement system. Canada 
remain ed committed to working with other interested Members, including the United States, with a 
view to addressing concerns and undertaking the AB selection process es expeditiously. Canada 
deeply regret ted that the DSB ha d not complied with its legal obligation under Article 17.2 of the 
DSU to appoint Appellate Body members to fill the vacancies. The text of the DSU was clear: 
"[v]acancies shall be filled as they ari se". This requirement d id not provide for exceptions or 
justifications not to replenish the Appellate Body.  
10.13.   The representative of China  said that his country  support ed the statement made by Mexico 
on behalf of 116 Members which represent ed more than 70% o f the entire  Membership. China  
welcome d Malaysia and Thailand as co-sponsor s of this important proposal contained in document  
WT/DSB/W/609/Rev. 14 and wished  to encourage more Members to do the same  in order to forge 
greater political support towards  breaking the current deadlock. China  regret ted that the illegal 
blockage  by the United States continue d to frustrate the collective efforts of Members to launch the 
AB selection process es. The existing t wo-tier dispute settlement system serve d the entire  
Membership well. The impartial and prompt resolutions of disputes could contribute to a favourable  
global trading environment that would benefit everyone. As the main architect of the dispute 
settlement s ystem, the United States was probably also its  biggest beneficiary. 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 w ould be compromised. While the Appellate Body was one step closer to  a potential 
paralysis, the demand for its services stay ed at a very high level. Thus far, there were 12 pending 
appeals and Members continue d to bring in more disputes which might eventually be  appeal ed. 
Notably, in 2019 the DSB ha d already established 10 panels , including the one established at the 
present meeting . If Members  could not  break the deadlock in time, the resulting uncertaint y would 
eventually undermine the functioning of the remaining parts of the dispute settlement sys tem. In 
response to this pressing crisis created by the United States, Members continue d to try every means 
to accommodate the concerns  they had raised  as long as the essential features of the dispute 
settlement system were preserved. In particular, China  recognize d the various efforts of 
Amb.  Walker  as Facilitator  in trying to move the informal process on AB matters forward, which 
include d the develop ment of  a concrete reform using text-based convergence points before the next WT/DSB/M/434  
 
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  General Council meeting. Chin a wished to reiterate  its commitment to this process and sincerely 
hoped these latest efforts could break  through the current impasse. Article 17.2 of the DSU was 
crystal clear that : "[v]acancies shall be filled as they arise ". China , therefore , urged the United States 
to respect its legal obligation under the DSU and to work with other Members constructively with a 
view to unblocking the AB selection process es expeditiously.  
10.14.   The representative of  India said that his country wished to refer to its stat ements  made at  
previous  DSB meetings  on this matter and wished to reiterate  its serious concerns regarding the 
DSB's inability to comply with its legal obligation under Article 17.2 of the DSU to appoint 
AB members to fill the vacancies. The text of the DS U was clear: AB vacancies had to  be filled as 
they ar ose. This requirement d id not provide for exceptions or justifications not to replenish the 
Appellate Body. Therefore, India call ed on all Members to engage constructively to immediately start 
the AB sel ection process es as a priority.  
10.15.   The representative of  Hong Kong, China  said that his delegation simply wished  to reiterate 
its deep concerns about the impasse in the AB selection processes  and urge d for constructive 
discussion among Members to resolve the deadlock without delay.  
10.16.   The representative of  Turkey  said that her country also refer red to its statements made at 
previous DSB meetings and express ed its deep concerns with the current stalemate. A s one of the 
116 co -sponsors of the proposal presented by Mexico, Turkey join ed others in stating that Members  
had to start the AB selection processes without further delay, as required by Article 17.2 of the DSU. 
It was the responsibility of all Members. In this respect , Turkey  welcome d constructive discussions 
and several proposals presented by Members for breaking the current impasse in the informal 
process on AB matters under the General Council. Turkey  value d those discussions and proposals. 
Turkey was ready to work constructively with all Members in order to  overcom e this impasse and 
invite d all parties to engage in discussions with the Membership in this regard.  
10.17.   The representative of  Chinese Taipei  said that his delegation wished to  refer to its statements 
made at  previous DSB meetings. As many delegations  had mentioned, this was an urgent situation. 
If Members  took into account the time needed for  the completi on of the AB selection processes, they 
should understand that the deadline  to prevent the paralysis of the Appellate Body in December  2019 
was not simply getting closer : it was actually already here. Therefore , Chinese Taipei  continued to  
support the proposal contained in document  WT/DSB/W/609/Rev. 14 and hope d that the impasse 
could be resolved as soon as possible.  
10.18.   The representative of Singapore  said that his delegation  wished to reiterate  its serious 
systemic concerns about  the failure to launch the AB selection process es. Singapore  welcome d its 
fellow ASEAN neigh bours Malaysia and Thailand who h ad formally joined as co -sponsors. This 
brought  the total number of co -sponsors to 116. With just two months and 10 days left before D -Day 
on 10 December 2019, Members  unfortunately d id not appear to be any closer to a solu tion to this 
impasse. Singapore remain ed committed to supporting Amb. Walker  as Facilitator  in the informal  
process  on AB matters , and urge d all Members, especially those who ha d raised concerns, to actively 
engage in finding solutions. Singapore reiterate d its consistent view that the AB selection process es 
should be allowed to proceed unconditionally in the meantime. Singapore would  continue to engage 
constructively and collabor atively towards resolving this impasse.  
10.19.   The representative of Japan  said that his country  wished to refer to its statements made at 
previous DSB meetings. Japan continue d to support the informal process on AB matters led by 
Amb.  Walker as Facilitator . The active engagement of all WTO Members was essential.  
10.20.   The representative of Australia  said that her country wished to refer to its previous 
statements on this matter and reiterate d its serious concerns regarding the DSB 's inability to 
commence the AB select ion process es. Australia  welcome d progress in the General Council informal 
process  on AB matters  and view ed the anticipated transition to text -based discussions as a positive 
step forward. However, Australia remain ed clear-eyed about the hard work required over the next 
few months to address key concerns regarding the functioning of the Appellate Body. Australi a was  
strongly committed to the work ahead and encourage d Members to continue solutions -focused, 
active engagement and to demonstrate the necessary flexibility to agree on pragmatic solutions in 
the interests of all Members.  WT/DSB/M/434  
 
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 10.21.   The representative of  Korea  said that his country welcome d new co -sponsors and support ed 
the statement made by Mexico based on the joint proposal  contained in document  
WT/DSB/W/609/Rev. 14. Korea w ished to refer to its statements made at previous DSB meetings.  
10.22.   The representative of  Mexico , speaking on behalf of the 116 co-sponsors of the proposal  
contained in document WT/DSB/W/609/Rev.1 4, expressed their regret that for the twent y-seventh  
occasion , Members  had still not been able to start the AB selection processes and ha d continuously 
failed  to fulfill their duty as Members of this Organization . The fact that a Member might have 
concerns about certain aspects of the functioning of the Appellate Body c ould not  serve as a pretext 
to impair and disrupt the work of the Appellate B ody. There was no legal justification for the current 
blocking of the AB selection process es, which was causing concrete nullification and impairment for 
many Members. As Article 17.2 of the DSU clea rly state d: "[v]acancies shall be filled as they arise ". 
No discussion should prevent the Appellate Body from continuing to operate fully and Members had 
to comply with their obligation under the DSU to fill the AB vacancies.  By failing to act at the prese nt 
meeting , Members  would maintain the current situation which was seriously affecting the functioning  
of the Appellate Body against the best interest of all Members.  
10.23.   The representative of  Mexico  said that Mexico wished to welcome the countries that had 
decided to join the list of co -sponsors of th e proposal  contained in document 
WT/DSB/W/609/Rev.1 4, which accordingly comprise d 116 Members . Mexico encouraged  all other 
Members  to also co -sponsor this proposal . To date, ov er ten proposals had been submitted as part 
of an informal process  on AB matters conducted under the auspices of the General  Council, with the 
aim of addressing the concerns expressed.  This should be reason enough to launch the AB selection 
process es. However, and m ore importantly, Members  had to  de-link the AB selection processes  from 
any other concerns. All Members had a shared responsibility to resolve this pressing issue as soon 
as possible. Therefore , Mexico wished to reiterate its willingness to work towards  finding a solution 
and urged  all Members to immediately initiate, in a responsible manner, the AB selection pr ocess es. 
10.24.   The representative of  Chile said that his country  wishe d to make  a brief statement with 
respect to two issues. First,  Chile wished to  note that , at the present meeting,  there  was a clear 
majority , namely,  70.7% of the WTO Membership that was  voicing support for launching  the 
AB selection process es. Second, with regard to the concerns raised about  the functioning of the 
Appellate Body , Chile said that  Members were grateful for Amb. Walker's work as Facilitator in the 
informal process on AB matt ers conducted under the auspices of the General  Council  since 
January  2019. This process had helped  to hear and shar e these various concerns . Significant inroads 
had been made  as a result of this informal process . Members  had received  a progress report on 
points  of convergence . Chile wished to join the 70.7% of the Membership and believe d that the 
points of convergence were very important  at this sensitive and delicate stage in the history of this 
Organization . 
10.25.   The representative of  Malaysia  said that his delegation wished to thank Mexico and other 
Members for co -sponsoring the proposal  contained in document WT/DSB/W/609/Rev.1 4. Malaysia  
wished to  urge and ring the alarm in relation to the current impasse in the AB selection processes . 
While Malaysia acknowledged  specifically the concerns expressed by the United States on this issue, 
the loss of an effective dispute settlement system should be avoided at all costs. Hence, Malaysia 
strongly support ed that AB vacancies be filled expediti ously, as not doing so  might jeopardize the 
viability of the entire WTO dispute settlement system. It was Malaysia's  hope that the A ppellate 
Body could continue to be a multilateral enforcement mechanism. Whi le Malaysia was not an active 
user of the disput e settlement mechanism, Malaysia  viewed that it was the collective responsibility 
of all Members to identify potential solutions to address th e issue pertaining to the AB selection 
process es. It was critical that Members exercise d flexibility to resolve th e pending issues to ensure 
that the credibility of the multilateral trading system was not undermined. The only solution to the 
current situation was constructive d ialogue  and re al engagement from all WTO Members to address 
the impasse. Resolving the impas se in the A ppellate Body was most urgent. All WTO Members should 
work together to continue to emphasize the importance of the system and urge the U nited States 
to come to the negotiating table to resolve this issue.  
10.26.   The representative of 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 ha d 
failed to participate in ongoing discussions on Appellate Body reform. As explained at past meeting s 
of the DSB, these statements were wrong. The facts establish ed that no Member ha d been more 
constructively and consistently engaged on these substantive issues than the United States. The WT/DSB/M/434  
 
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  United States continue d, as it ha d always done, to be engaged on t hese important substantive 
issues, including by meeting regularly with Amb. Walker as Facilitator  in the informal process  and 
with Members to exchange views on the issues under discussion. Indeed, for several months, both 
within the informal process and ou tside, the United States ha d actively sought engagement from 
Members on what the United States  believe d to be a fundamental issue. The United States 
questioned how Members  had come to this point where the Appellate Body, a body established by 
Members to se rve 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, w ould be effective in 
addressing the concerns that the United States a nd other Members ha d raised.  
10.27.   The representative of the European Union  said that t he United States ha d raised , once  again , 
the question of "what has allowed the Appellate Body to disregard the rules in the DSU". On this 
question, the EU w ished  to reiterate that Members  should be having a forward -looking discussion 
and should not continuously re -litigate their differences as t o the reading of the current rules. And 
the EU was looking forward to continuing such forward -looking discussion in the General Council  
informal process  on AB matters . On substance, it was no secret that the EU disagreed with the 
United States but in order  to save time,  the EU  would refer to its statements  made at previous DSB 
meetings  on the se issues. The EU's  views were well known , but the EU  would be happy to explain 
its position again as appropriate.  
10.28.   The Chairman  thanked  all delegations for their state ments. He said that a s in the past, the 
DSB w ould take note of the statements expressing the respective positions, which would  be reflected 
in the minutes of th e present  meeting. As delegations had noted at the present  meeting, this matter 
require d urgent engagement on the part of all WTO Members. As Members  were aware , under the 
auspices of the General  Council, he had  agreed to assist the Chair of the General Council, as 
Facilitator, in an informal process of focused discussions on Appellate Body matters.  He recalled that 
on 23 July 2019, he had provided a third progress report to the General Council on his informal 
consultations. This report had been  circulated to all Members in document JOB/GC/220. He said that 
he would  continue to consult on these matters in various configurations and w ould report again to 
the Membership on the results of his consultations at the nex t General Council meeting scheduled 
for 15 October  2019.  
10.29.   The DSB took note  of the statements.  
11  CANADA -EUROPEAN UNIO N INTERIM APPEAL ARB ITRATION ARRANGEMENT  
PURSUANT TO ARTICLE 25 OF THE DSU (JOB/D SB/1/ADD.11)  
A. JOINT PRESENTATION  BY CANADA AND THE EUROPE AN UNION  
11.1.   The Chairman  said that t his matter was on the Agenda of the present  meeting at the joint 
request of Canada  and the European  Union. He drew  attention to the communication  contained in 
document JOB/DSB/1/Add.11 . He then invite d the representatives of the respective delegations to 
speak.  
11.2.   The representatives of Canada  said that, o n 25 July 2019, Canada and the EU had notified 
this interim arrangement pursuant to the Statement on a Mechanism for Developing, Documenting 
and Sharing Practices and Procedures in the Conduct of WTO Disputes (JOB/DSB/1/). Canada 
recalled that , under this Mechanism, Members were invited to cir culate, inter alia , documents that 
indicate d their intention to follow, either unilaterally or on a reciprocal basis with other Members, 
certain practices and procedures in their future disputes (as set out in paragraph 6). Members were 
also invited, if th ey so wish ed, to introduce such documents for discussion during a DSB meeting 
(as set out in paragraph 8). In the notification filed by Canada and the EU on 25 July 2019, Canada 
and the EU indicate d their intention to resort to arbitration under Article 25 of the DSU as an interim 
appeal arbitration procedure in future disputes between Canada and the European Union. The interim 
nature of this arrangement mean t that the appeal arbitration procedure would apply only if, and 
only as long as, the Appellate Body  was not able to hear appeals of panel reports due to an 
insufficient number of its members. Indeed, the interim arrangement ha d to be seen as a 
contingency measure prompted by the impasse related to Appellate Body appointments. As a WT/DSB/M/434  
 
- 26 - 
 
 
  
 contingency measure, t his was not an endorsement or a critique of the status quo. There were more 
appropriate vehicles and venues for advancing proposals for reform. As all Members were acutely 
aware, for the past two years, every month the Agenda  of the DSB  had featured proposals to launch 
AB selection processes. Even though a large number of WTO Members ha d endorsed these proposals, 
there was still no consensus in the DSB  on this matter. As a result, the Appellate Body as of now  
had only three members. Unless a ppointments were made in time, there would  soon be only one 
member left and the Appellate Body would  not be able to hear new appeals. This w ould in turn 
undermine the entire WTO dispute settlement process. It remain ed Canada 's and the EU 's clear 
priority t o resolve the Appellate Body impasse. Canada and the EU  had made formal proposals to 
that end , were  actively engaged  in, and w ould continue to support, the process led by Amb. Walker 
as Facilitator that was aimed at addressing the concerns raised by the US  delegation and at the 
unblocking of the Appellate Body appointments. In the meantime, however, due diligence 
command ed that Canada and the EU  prepare arrangements to safeguard their procedural rights in 
WTO disputes in the event where  the appointments rem ained blocked despite Members ' best efforts.  
11.3.   The representative of the European  Union  said that, a s December 2019 was approaching,  
WTO Members who ha d pending disputes or who may have disputes in the future were faced with 
the question of how to manage th ese disputes if the Appellate Body bec ame non-operational. Canada 
and the EU were committed to a multilateral rules -based trading system, as embodied in the WTO. 
Within that system, WTO Members were entitled to a third party, binding adjudication of trade 
disputes and to an independent and impartial appellate review of panel reports. Canada and the EU  
did not wish to see these rights compromised should the Appellate Body impasse continue. 
Therefore, with this interim arrangement, Canada and the EU  wished to preserve their right to 
appellate review provided under Article 17 of the DSU by replicating it as closely as possible within 
the framework of Article 25  of the DSU. First, the task of the appeal arbitrator w ould be to review 
legal issues covered in the panel report, thereby preserving a two-step system. Second, the 
procedure w ould very closely resemble the procedure before the Appellate Body, including as regards 
the rights of third parties. Third, the appeal arbitrators would be former AB members, selected 
randomly by the WTO D irector General  from the pool of available former AB memb ers. Since these 
persons had been appointed in the past by the WTO Membership and had effectively served as 
AB members, this would  contribute to the legitimacy and quality of this mechanism. Canada and the 
EU also envisage d that they would  receive appropri ate administrative and legal support from the 
AB Secretariat, just like AB members. Fourth, under Article 25  of the DSU, the arbitration award 
would be binding on the parties and enforceable through the DSU 's compliance and sanctions 
procedures. Therefore,  for all practical purposes, it w ould have the same legal effects between the 
parties as AB reports.  
11.4.   The EU further s tated that w ith this interim arrangement, Canada and the EU  also wish ed to 
preserve the panel proceedings as much as possible. Only at the  very end of the panel proceedings 
– when the final panel report was issued to the parties but not yet circulated to the broader WTO 
Membership – could a party trigger the appeal arbitration procedure by suspending the panel 
proceedings. If neither party appeal ed under the appeal arbitration procedure, the panel report 
would be normally circulated and adopted by the DSB. This interim arrangement was of a bilateral 
nature . This meant that it would only be applicable in disputes between Canada and the EU, should 
such disputes arise in the future. However, by circulating this arrangement and presenting it at the 
present DSB meeting , Canada and the EU had wished to make it transparent to the entire 
Membership. Other Members might  also be reflecting on pos sible contingency measures, as Canada 
and the EU had . Canada and the EU  believed that this arrangement constitute d a workable solution 
and provide d a model for other Members who wish ed to preserve, on an interim basis, a binding, 
independent and two-stage dispute settlement process, as envisaged by the WTO Agreements. The 
EU noted that the arrangement anticipate d procedures for situations in which multiple WTO Members 
had appeal -arbitration arrangements in place between them and h ad used those arrangements to 
initiate appeal -arbitrations related to the same matter. Finally, Canada and the EU wished  to recall 
that, where applicable, other practice documents circulated pursuant to the Statement on a 
Mechanism for Developing, Documenting and Sharing Practices a nd Procedures in the Conduct of 
WTO Disputes (JOB/DSB/1), and which were endorsed by Canada and the EU, would also apply to 
the interim appeal arbitration procedure between them. This was the case, in particular, of the 
practice document on Transparency of  Dispute Proceedings (JOB/DSB/1/Add.3), pursuant to which 
Canada and the EU would  request the arbitrator to provide for a series of transparency measures, 
such as open hearings. Canada and the EU  looked forward to comments and questions from Members 
regard ing the interim appeal -arbitration arrangement at the present meeting .  WT/DSB/M/434  
 
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  11.5.   The representative of the United States  said that the United States would first note that 
Members ha d the right to use Article 25 of the DSU on arbitration to resolve their disputes. And 
indeed, the United States was one of the parties to the only instance to date in which Article 25 
arbitration had been  used. However, the proposal presented at the present meeting  raised a number 
of systemic and p ractical concerns. The proposal explicitly state d that the intent was "to replicate as 
closely as possible all substantive and procedural aspects as well as the practice of Appellate Review 
pursuant to Article 17 of the DSU ". In other words, Canada and the  EU did not see any problem with 
the Appellate Body practice at all. This proposal demonstrate d that, despite the fact that the 
Appellate Body through its practice ha d repeatedly breached the rules set by WTO Members, Canada 
and the EU appear ed to endorse and legitimize those breaches. This was confirmed, for example, by 
the fact that the proposal sa id that any arbitration award should be treated like an Appellate Body 
report "for purposes of interpretation ". Despite all of the discussion in the General Cou ncil and the 
DSB that the DSU ha d no system of precedent, Canada and the EU 's approach to "interpretation " 
demonstrate d that these Members want ed binding precedent and would seek to require arbitrators 
to act inconsistently with the WTO Agreement. Apparent ly, more than one year of discussion of 
Members'  agreed WTO rules on dispute settlement ha d brought them no closer to a shared 
understanding of what the plain words mean t. This raise d the grave concern that, not only d id the 
Appellate Body not respect the rules as written, but those WTO Members d id not want the rules to 
be respected as written. The United States questioned h ow this attitude could be consistent with a 
rules-based trading system . The proposal contain ed a number of legal flaws and elements tha t might 
not be workable, such as publication of a panel report that was not a panel report. Further, there 
was no basis for the Secretariat assigned to the Appellate Body to work instead on arbitrations as if 
these proceedings constituted the activity of a  parallel Appellate Body. The United States continue d 
to consider that the way forward was to understand and recognize the concerns that ha d been raised 
with the Appellate Body and engage in a deeper discussion of why the Appellate Body ha d felt free 
to depart from what Members had agreed to, so that appropriate solutions c ould be found.  
11.6.   The representative of  Argentina  said that his country wished to thank the European Union and 
Canada for their presentations concerning the Interim Appeal Arbitration Arrangement pursuant to 
Article 25 of the DSU. Their statements at the present meeting  allowed Members to bring a 
multilateral approach to the di scussion of one of the options formulated by some Members to resolve 
the current deadlock in the WTO dispute settlement system. Argentina had historically been an active 
participant in the WTO dispute settlement system . Therefore , its possible paralysis was a matter of 
concern. Argentina  believe d that the absence of an effective system for the resolution of disputes 
would negatively affect one of the essential pillars of this Organization. The mechanism presented 
by Canada and the EU at the present meeting  was a genuine effort to move forward in a positive 
manner, despite being imperfect from a systemic point of view and incomplete in terms of its 
coverage of Members . Argentina's priority remain ed focused on reaching multilateral solutions. 
Argentina would,  therefore , continue to participate actively in Amb. Walker's  efforts to find solutions  
as part of the informal process  on AB matters . On this basis, Argentina would  follow with interest 
any progr ess that might result from the identification of potential points of convergence to address 
the concerns that had been expressed on the operation of the system, and to move ahead with 
launching the AB selection process es. Argentina was  convinced that the M embership should continue 
to assist the Facilitator  in his task with a view to reaching basic points of consensus. Argentina, once  
again , wished  to thank the EU and Canada for the ir positive effort s that went into this initiative, and 
took this opportunity  to ask whether these Members intend ed to somehow multilateralize or 
encourage others to join the Interim Appeal Arbitration Arrangement proposal. Argentina also wished  
to know what would be the most suitable way of doing this.  
11.7.   The representative of Japan  said that his country  thank ed the EU and Canada for their 
statements  made at the present meeting  under this Agenda item . Japan t ook note of the points 
made by the EU and Canada. In particular, the EU and Canada had explained th at this arrangement 
was intended to be interim in nature. Japan  also note d that this was a bilateral arrangement between 
two Members and was not intended to cre ate a new mechanism of a plurilateral nature within the 
system. Indeed, the informal process led by  Amb. Walker as Facilitator  was currently at a critical 
juncture. While recognizing the need to prepare a contingency  plan, Members'  primary goal had to  
remain that of  finding a satisfactory solution to the Appellate Body matter so as to restore and 
maintain the proper and sustainable functioning of the WTO dispute settlement system. Time was 
running out and because of that , Members  had to  focus on addressing the immediate issues before 
them. As for the interim arrangement that the EU and Canada had presented at the present meeting , 
Japan was  carefully examining the document the EU and Canada had circulated. In any event, Japan  WT/DSB/M/434  
 
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 underst ood the idea was to preser ve a two-tier system in the event the Appellate Body cease d to 
operate. Japan  recognize d that the Appellate Body was an integral part of the existing dispute 
settlement mechanism and that a  dysfunctional Appellate Body c ould bring the entire system to a 
halt. However, replacing the Appellate Body with another two -tier mechanism of some kind was not 
the only way to keep the system running at th is time of exigency. Japan st ood ready to discuss any 
option to this end with any in terested Member. That said, Members  should not lose sight of the fact 
that their focus and emphasis had to remain firmly set  on finding a long -lasting solution to the 
Appellate Body matter s. With this, Japan  once again full y support ed the work of Ambassado r Walker 
as Facilitator in the informal process  on AB matters .  
11.8.   The representative of  Colombia  said that his country wishe d to thank Canada and the 
European Union for presenting a joint proposal on an interim appeal arbitration arrangement 
pursuant to Article 25 of the DSU. Columbia welcome d this proposal  and understood that this was a 
provisional and bilateral solution to a potential deadlock of the Appellate Body 's regular activities. 
Colombia was convinced of the importance of maintaining an appellate  review mechanism for WTO 
dispute settlement system and acknowledge d the commitment undertaken to present an alternative 
based upon and respectful of the DSU. While recognizing the importance of finding an interim 
solution in the event of  a potential stale mate, Colombia believe d that the Membership should keep 
channelling its efforts through the informal process on AB matters conducted under the auspices of 
the General Council to avoid such a stalemate, and that it should keep aiming at finding a suitable 
and long -lasting solution to the Appellate Body impasse.  
11.9.   The representative of Norway  said that t his Agenda item was of course related to the previous 
Agenda item . Members should r emember that – despite vague references to a different, undefined, 
deeper di scussion – there should be an easy solution to the underlying problem: the end of the  
blockage of new AB appointments. Thus, Norway  repeat ed that Members  needed to work together 
with full force to untie that knot, and that Norway really appreciate d the wor k undertaken by 
Amb.  Walker as Facilitator of the informal process on this matter.  That being said, Norway also 
highly appreciate d constructive efforts from Members to handle the situation and safeguard a 
well-functioning dispute settlement system. Norway was  currently assessing the details contained in 
this "agreement template " and whether or not it should also enter into similar agreements.  
11.10.   The representative of Australia  said that her country wished to thank  Canada and the EU for 
their statements  made at the present meeting  under this Agenda item . Australia recogni zed that 
Members w ould need to consider interim options in the event the Appellate Body cease d to hear new 
disputes. However, like other Members, Australia  urged Members to continue supporting the General 
Council informal process on AB matters as their foremost priority at this time.  
11.11.   The representative of Canada  wished to t hank Members  for these comments and questions. 
In response  to those comments  and questions , Canada wished  to make the following observations. 
The interim arrangement was intended to preserve the rights, to the extent possible, between 
Canada and the EU, on the basis o f the existing DSU provision , namely,  Article 25. Canada  hoped to 
see the positive  outcome of the ongoing informal process on AB matters led by Am b. Walker and 
Members  would continue engaging constructively in that process. But, in the meantime, it was 
Members' right to take contingency measures. Canada and the EU  were transparent about the 
arrangement and had also  made certain  that other WTO Members c ould participate as third parties 
in appeal arbitration, on the same conditions as those applicable to appe llate proceedings. As Canada 
and the EU  had explained, what was sought  with th is interim arrangement was to preserve Canada's 
and the EU's  WTO rights, pending the resolution of the AB impasse. A bilateral arrangement was an 
appropriate vehicle for that purpose as between Canada and the EU. At this point, Canada and the 
EU saw this indeed as a flexible arrangement that could be deployed between any two WTO 
Members. But Canada and the EU  were open to hear  the views of other  Members on this matter. 
Indeed, the interim arrangement ha d to be seen as a contingency measure prompted by the impasse 
related to AB appointments. As a contingency measure, this was not an endorsement or a critique 
of the status quo. There were more appr opriate vehicles and venues for advancing proposals for 
reform , including the one led by Amb. Walker as Facilitator in the informal process  on AB matters .  
11.12.   The representative of the European Union  said that his delegation wished t o conclude  by 
thank ing delegation s for their comments and questions. This discussion confirm ed that many WTO 
Members were struggling with the question of how to manage their disputes in case they were 
affected by the impasse related to AB appointments.  Canada and the EU took partic ular note of the 
statement made by Australia.  The rationale behind the interim arrangement was straightforward: WT/DSB/M/434  
 
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  this was a contingency measure that would allow Canada and the EU to preserve their WTO rights 
in potential disputes between them in the context  of the AB impasse. This include d, in particular , 
the right to have their trade disputes resolved through binding adjudication and the right to an 
appeal. Canada and the EU  had devised a workable solution that would preserve these rights on an 
interim basis. But, both delegations  wished  to strongly emphasize that they did not pretend that this 
arrangement c ould replace a fully functioning dispute settlement system, which include d a standing 
Appellate Body. This was why the work towards unblocking the AB selection processes  would remain  
their clear priority. If delegations were interested in more detail s regarding this arrangement, they 
could  contact  the EU  bilaterally  and the EU would be happy to discuss it with them.  
11.13.   The DSB took note of the statements.  
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