RESTRICTEDWORLD TRADE
ORGANIZATIONWT/DSB/M/154
22 October 2003
(03-5592)
Dispute Settlement Body
18 August 2003
MINUTES OF MEETING
Held in the Centre William Rappard
on 18 August 2003
Chairman:  Mr. Shotaro Oshima (Japan)
Subjects discussed: Page
1. United States – Anti-dumping measures on cement from Mexico .......................................1
(a) Request for the establishm ent of a panel by Mexico ..................................................................1
2. United States – Anti-dumping measu res on oil country tubular goods (OCTG)
from Mex ico.................................................................................................................... ...........3
(a) Request for the establishm ent of a panel by Mexico ..................................................................3
3. United States – Countervailing duties on steel plate from Mexico.......................................5
(a) Request for the establishm ent of a panel by Mexico ..................................................................5
4. European Communities – Measures affecting the approval and marketing of
biotech products............................................................................................................... .........6
(a) Request for the establishment of  a panel by the United States ...................................................6
(b) Request for the establishm ent of a panel by Canada ..................................................................6
(c) Request for the establishmen t of a panel by  Argentina ..............................................................6
5. European Communities – Anti-dumping duties on malleable cast iron tube or
pipe fittings from Brazil ...................................................................................................... .....8
(a) Report of the Appellate Body and Report of the Panel...............................................................8
6. Appointment of Appellate Body members ...........................................................................11
1. United States – Anti-dumping measures on cement from Mexico
(a) Request for the establishment of a panel by Mexico (WT/DS281/2)
1. The Chairman drew attention to the communication from Mexico contained in document
WT/DS281/2.
2. The representative of Mexico said that 13 years ago, in August 1990, the United States had
imposed an anti-dumping measure on imports of Gray Portland Cement and Cement Clinker from
Mexico.  Since then, this measure had been considered to be in violation of the provisions of the
Tokyo Round Code on Anti-Dumping Measures. Mexico had successfully challenged this measure inWT/DSB/M/154
Page 2
accordance with the GATT rules and had been able to demonstrate that the investigation had been
fundamentally flawed since it had failed to meet th e standing requirement; i.e. the requirement that it
should have been conducted by the US domestic industry.  The Panel had appropriately recommended
that the United States should revoke its anti-dumping measure and reimburse the duties collected to-
date.  However, the United States, instead of assuming its responsibilities towards Mexico, had takenadvantage of the weak rules that existed at the time to block the adoption of the Report and to avoid
compliance with the Panel's findings.  In due course, the United States had promised the GATT
Contracting Parties that it would seek a mutually satisfactory solution with Mexico in order to fulfil
its international obligations.  To-date, all of Mexico's efforts to find a mutually acceptable alternative
had proved futile.  In fact, the United States had still not taken action and had maintained an anti-
dumping duty that had not even met the most basic requirement for its imposition, given that it had
not been endorsed by the domestic industry.
3. Mexico wished to assure Members that it was not its intention to dispute once again the
GATT Panel Report that was favourable to Mexico.  Indeed, however incredible it might seem, the
United States had continued for 13 years to apply a measure that, in principle, should have never
existed.  Not satisfied with the "fundamental flaw" in  the investigation, the United States had turned
the investigation into a "catalogue" of violations  of the WTO Anti-Dumping Agreement.  Therefore,
Mexico was now challenging a significant number of fundamental violations of the United States'
obligations as a WTO Member . These included the various violations committed throughout the
administrative and sunset reviews and the dismissal of the request to initiate a changed circumstances
review.   The "catalogue" included numerous violations which were set forth in its request for the
establishment of a panel.  He wished to refer to so me of them:  (i) the failure of the United States to
bring its laws, regulations and procedures into conformity with its obligations as a WTO Member, as
regards measures adopted before the entry into force of the above-mentioned Agreement;  (ii) the
illegal use of the "likely" standard in determining whether the termination of the anti-dumping
measure would be likely to lead to continuation or recurrence of dumping and injury;  (iii) the failure
to comply with the obligation to conduct an "objecti ve examination" of the record based on "positive
evidence" when examining the inju ry;  (iv) the rejection by the International Trade Commission of a
changed circumstances review, even when information had been provided that made clear the need for
such a review;  (v) the use of illegal methodologies to calculate margins of dumping;  and (vi) the
failure of the United States to apply its laws, regulations and rulings in a uniform, impartial and
reasonable manner, as required by Article X.3(a) of the GATT 1994.
4. He stressed that Mexico would not settle for the withdrawal by the United States of its anti-
dumping measure.  It was, once again, seeking reimbursement of the duties that had been deposited,as this was the only commercially meaningful way of safeguarding the legitimate interests of Mexico
after more than a decade of illegality and losses amounting to millions.  The DSU rules provided for
this eventuality and the only thing that was needed  was a panel with sufficient vision to do justice.
Finally, Mexico asked the United States to accept th e establishment of a panel at the present meeting
in order to begin to discuss the merits of Mexico's arguments as soon as possible.
5. The representative of the United States said that her country was disappointed that Mexico
had chosen to pursue this matter further by requesting the establishment of a panel.  The United States
was confident that US law – as such and as applied in the anti-dumping determinations and in the
sunset review concerning Gray Portland Cement  and Clinker from Mexico – would be found to be
consistent with the United States' WTO obligations.  Unfortunately, there were some claims the natureof which the United States could not discern from Mexico's panel request.  The United States noted
that it had similar concerns over another of Mexico's panel requests, which it would discuss under
item 2 of the agenda of the present meeting. Because the Appellate Body had suggested that a
Member should raise its concerns over deficiencies in a panel request when the DSB considered that
request, the United States would at this time comment in some detail on the deficiencies it hadidentified in Mexico's panel request.WT/DSB/M/154
Page 3
6. Mexico claimed that several measures were inconsistent with the WTO obligations of the
United States, but some of the measures complained of were not measures at all, while others were
identified so generally that it was impossible to know precisely what was being challenged.  Among
the "measures" alleged to be inconsistent with WTO obligations, Mexico listed the Statement of
Administrative Action that accompanied the Urug uay Round Agreements Act (URAA), as well as a
Sunset Policy Bulletin that had been issued by the Department of Commerce in 1998.  Neither
document had the status of a "measure", and thus all claims pertaining to these documents should be
rejected.
7. Although in most instances Mexico had adequately identified the measure in question and the
particular sub-paragraphs of articles that had allegedly been violated by the measure, several of the
claims articulated in Sections A through H of Mexico's request were insufficiently specific to present
clearly the legal problem that was alleged to be at issue.  These claims involved Anti-DumpingAgreement articles containing multiple and discrete obligations.  Section A alleged a violation of
Articles 4 and 5 of the Anti-Dumping Agreement, in their entirety.  Such a claim seemed implausible,
and the lack of precision seemed unjustified given that elsewhere Mexico had been able to identify the
particular paragraphs of Articles which it considered to have been violated.  Several other Sections
made similarly sweeping allegations that were equally implausible, including Section C.3, which
alleged three violations of Article 2 and 6, and Secti on F, which alleged violations of Article 10 of the
Anti-Dumping Agreement.
8. The net result was that with respect to a large portion of Mexico's panel request, the United
States simply could not discern the legal basis of Mexico's complaint, and it believed that a panel
would so agree,  if a panel was established on the basis of the current panel request.  Accordingly, anappropriate course of action would be for Mexico to withdraw its current panel request and submit a
new request which would enable the United States and all other Members to adequately discern the
legal basis of Mexico's complaint. In summary, Mexico's panel request was deficient because it was
not sufficient to present the problems clearly, and because it purported to challenge things that were
not "measures".  Therefore, the United States could not go along with the establishment of a panel.
9. The representative of Mexico said that the United States had identified various aspects of
Mexico's panel request which in the US view were confusing.  Mexico said that one of the functions
of a panel request was to inform third parties of the claims raised by the parties to the dispute.
Therefore, he wished to see if any other Member considered that Mexico's panel request was
confusing and vague.
10. The DSB took note of the statements and agreed  to revert to this matter.
2. United States – Anti-dumping measures on oil country tubular goods (OCTG) from
Mexico
(a) Request for the establishment of a panel by Mexico (WT/DS282/2)
11. The Chairman drew attention to the communication from Mexico contained in document
WT/DS282/2.
12. The representative of Mexico said that his country was requesting the establishment of a
panel to condemn the anti-dumping measures imposed by the United States on oil country tubular
goods (OCTG) from Mexico, in particular because they were inconsistent with the disciplines relating
to the sunset and administrative reviews.  The Anti-Dumping Agreement clearly established that anti-
dumping duties "shall" be terminated after five years.  The only exception to this obligation was given
when the authorities had sufficient evidence that the expiry of the duty would be likely to lead tocontinuation or recurrence of injury and dumping.  It was difficult, in particular, to understand how anWT/DSB/M/154
Page 4
anti-dumping duty could not be eliminated when, as in the case at issue, the Mexican company had
exported with a zero dumping margin for three consec utive years.  Indeed, rather than applying the
Agreement correctly, the United States had completely ignored it.  He then pointed out some of the
infringements of the United States in this regard:  (i) the illegal use of the "likely" standard for
determining whether termination of the  anti-dumpi ng duty would be likely to lead to continuation or
recurrence of dumping;  (ii) the illegal use of the "likely" standard for determining whether
termination of the anti-dumping duty would be likely  to lead to continuation or recurrence of injury;
(iii) the failure to comply with the obligation to co nduct an "objective examination" of the record and
to focus on "positive evidence" when examining th e injury;  (iv) the illegal use of a "cumulative"
injury analysis for determining whether termination of the anti-dumping duty would be likely to lead
to continuation or recurrence of injury;  (v) the Department of Commerce's determination not to
terminate the anti-dumping duty, even when it was evident that the continued application of the dutywas not necessary to offset dumping;  and (vi) the failure of the United States to apply laws,
regulations and provisions in a uniform, impartial, and reasonable manner, as required by
Article X.3(a) of the GATT 1994.  The negotiators of the Anti-Dumping Agreement had clearly
established that these measures should have a limited duration.  The measures could not be
maintained indefinitely simply because the authorit ies "assume" that their termination would result in
the continuation or recurrence of dumping and injury.  Mexico urged the United States to accept the
establishment of a panel at the present meeting.
13. The representative of the United States said that her country could not agree to the
establishment of a panel at this time.  Mexico's panel request set forth numerous claims concerning
the US Department of Commerce and the US  International Trade Commission's sunset
determinations, as well as Commerce's final determination in the 4th administrative review involving
OCTG from Mexico.  Unfortunately, as was the case with the previous agenda item, the specifics of
each of these claims were difficult to discern because of the lack of details provided in Mexico's panel
request.
14. Once again, Mexico claimed that several measures were inconsistent with the WTO
obligations of the United States, but some of the measures complained of were not measures at all,
while others were identified so generally that it was impossible to know precisely what was being
challenged.  And, once again, among the "measures" alleged to be inconsistent with WTO obligations,
Mexico listed the Statement of Administrative Action that accompanied the Uruguay Round
Agreements Act (URAA), as well as a Sunset Policy Bulletin that had been issued by the Department
of Commerce in 1998.  Neither document had the status of a "measure", and thus all claims pertaining
to these documents should be rejected.
15. Mexico alleged breaches of a number of articles of the Antidumping Agreement, the
GATT 1994, and the WTO Agreement, most of which contained multiple and discrete obligations.
This, despite that fact that many of the measures complained of were too vaguely defined to identify
precisely, while some were not, in fact, measures at all.  For example, Section A.2 alleged a violation
of Article 2 in its entirety.  Such a claim seemed implausible, and the lack of precision seemedunjustified given that elsewhere Mexico had been able to identify the particular paragraphs of Articles
which it considered to have been violated.  The net result was that the United States simply could not
discern the legal basis of Mexico's complaint, and it believed that a panel would so agree,  if a panel
was established on the basis of the current panel request.  Accordingly, an appropriate course of
action would be for Mexico to withdraw its current panel request and submit a new request whichwould enable the United States and all other Members to adequately discern the legal basis of
Mexico's complaint. In summary, Mexico's panel request was deficient because it was not sufficient to
present the problems clearly, and because it purported to challenge things that were not "measures".
Therefore, the United States could not go along with the establishment of a panel.WT/DSB/M/154
Page 5
16. The representative of Mexico said that, like under the previous agenda item, the United States
had stated that Mexico's request was not sufficiently clear.  He, therefore, asked if any other Member
considered that Mexico's request was not sufficiently clear.
17. The DSB took note of the statements and agreed  to revert to this matter.
3. United States – Countervailing duties on steel plate from Mexico
(a) Request for the establishment of a panel by Mexico (WT/DS280/2)
18. The Chairman drew attention to the communication from Mexico contained in document
WT/DS280/2.
19. The representative of Mexico said that on 7 June 2000, the DSB had ruled that the
methodology used by the United States to apply countervailing duties to privatized companies was
inconsistent with the SCM Agreement.  This methodology was known as the "Gamma" methodology.
The United States, instead of revoking this methodology, had merely closed the investigation onleaded bars and had continued to apply the methodol ogy as if nothing had happened.  It was not until
the United States courts had confirmed the illegality of the said measure that the United States
withdrew it, only to replace it with another, equally illegal, measure:  the so-called "the Same Person"
methodology.  Once again, this methodology was conde mned "as such" by the Appellate Body in the
case known as "Countervailing Measures Concerning Certain Products from the EuropeanCommunities".  During the consultations, Mexico had believed that the United States would have the
good judgement not to apply the "Same Person" methodology to the reviews on steel plate from
Mexico.  However, his country was wrong.  The United States continued to invent methodologies
which required, a priori, the existence of a benefit for privatized firms.  Thus, in June 2003, the
United States had introduced yet another new methodology.  Without commenting on the consistencyof this methodology, Mexico could say that the United States had indicated that it would continue to
apply the illegal methodology to investigations or reviews initiated before 30 June 2003.  Therefore,
Mexico was obliged to request the establishment of a new panel to confirm, once again, the illegality
of this methodology.  He also wished to briefly refer to another issue and said that Mexico's proposal
to amend the DSU was aimed at preventing precisely this type of abuses.  If one were to remove theincentives for countries to continue to apply measures, such as this one, that were clearly WTO-
inconsistent, it would be possible to lighten the burden on the dispute settlement mechanism and focus
on cases involving legitimate differences in interpretation.
20. The representative of the United States said that her country was disappointed that Mexico
had chosen to pursue a panel request with respect to a measure which was in most respects no longer
in effect.  Liquidation instructions had been issued in 2002 for countervailing duties in connection
with the 1998 administrative review which Mexi co was challenging, and liquidation should now be
complete.  Further, a new administrative review was already underway, and when that review had
been completed, no later than 26 February 2004, the cash deposit rate for new entries established in
the 1998 administrative review would also change.  At that point, the 1998 review would cease to
have any effect.  Given this situation, it seemed to the United States that the resources of all involved,
including those of the parties, the Secretariat, and any panel which might be established, would bebetter served if Mexico were to assess the results of the soon-to-be completed administrative review,
and to determine at that time whether it wished to pursue WTO dispute settlement proceedings.  The
United States could not accept establishment of a panel at the present meeting, and hoped that Mexico
would reassess its decision to pursue panel proceedings.
21. The DSB took note of the statements and agreed
 to revert to this matter.WT/DSB/M/154
Page 6
4. European Communities – Measures affecting the approval and marketing of biotech
products
(a) Request for the establishment of a panel by the United States (WT/DS291/23)
(b) Request for the establishment of a panel by Canada (WT/DS292/17)
(c) Request for the establishment of a panel by Argentina (WT/DS293/17)
22. The Chairman proposed that the three sub-items to which he had just referred be considered
together. First, he drew attention to the communi cation from the United States contained in document
WT/DS291/23.
23. The representative of the United States said that her country was gravely concerned with the
EC's application of its measures governing the appr oval of the products of agricultural biotechnology.
The SPS Agreement recognized that Members might adopt approval procedures for crops and food
products, including biotech products, in order to protect health and the environment.  EC legislationset out such procedures, and those procedures, as written, were not the focus of the US complaint.
The United States only asked that those procedures be permitted to proceed to their normal
conclusion.  Rather, the United States was concerned that the EC and its member States, in
implementing the EC legislation, had adopted meas ures that were inconsistent with the EC's
obligations under the WTO Agreement.  First, since October 1998, the EC had applied a moratoriumon the approval of all biotech products.  The existence of the moratorium was indisputable: the EC
had not considered a biotech product for approval in nearly five years, and high-level EC officials had
acknowledged its existence in public statements.  Under this moratorium, the EC had blocked all
applications for placing biotech products on the market, and had not considered any application for
final approval.  The US panel request detailed over 30 specific biotech products affected by thismoratorium.  Second, six EC member States maintained marketing and import bans on certain biotech
products, even though these products had actually been approved by the EC prior to the imposition of
the moratorium.  As the EC's own scientists had stated, there was no scientific basis for either the
approval moratorium or the member State bans.  As a result, the United States maintained that these
measures were inconsistent with the EC's obligations under various provisions of the SPS Agreement,the GATT 1994, the Agreement on Agriculture, and the TBT Agreement, as specified in the US panel
request.  The EC approval moratorium and the memb er State bans restricted imports of agricultural
and food products from the United States.  More broadly, the United States was concerned that the
EC's measures were hindering the worldwide development and application of agricultural
biotechnology.  This technology had great promise for raising farmer productivity, reducing hunger
and improving health in the developing world and improving the environment.  On 19 June 2003, the
United States and Argentina had jointly consulted with the EC concerning the approval moratoriumand the member State bans.  Canada had held separate consultations with the EC on the same
measures. At the consultations, the EC had neither agreed to lift its moratorium or the member State
bans, nor had it offered any scientific justification for its measures.  Accordingly, the United States
requested that the DSB establish a panel pursuant to Article 6 of the DSU with standard terms of
reference to examine these matters.  The United States also submitted that under Article 9.1 of theDSU, a single panel should be established to consider the matters raised by the United States,
Argentina, and Canada.
24. The Chairman drew attention to the communi cation from Canada contained in document
WT/DS292/17.
25. The representative of Canada said that since October 1998, the EC had maintained a
moratorium on the approval of products of agricultural biotechnology.  The EC had effectively
suspended the consideration of applications for approval of biotech products, and the granting ofWT/DSB/M/154
Page 7
approvals for those products, under the relevant EC approvals processes.  In addition to the
moratorium, France, Greece, Austria and Italy maintained national measures prohibiting the
importation, marketing or sale of biotech products that had already been approved under the relevant
EC approvals processes, prior to October 1998, for importation, marketing or sale in the EC.  Canada
was of the view that these measures were inconsistent with the obligations of the EC under the SPSAgreement, the TBT Agreement, the Agreement on Agriculture and the GATT 1994.  These
violations nullified or impaired the benefits accruing to Canada under these Agreements. In addition,
the measures nullified and impaired the benefits accruing to Canada in the sense of Article XXIII:1(b)
of the GATT 1994.  On 13 May 2003, Canada had requested consultations with the EC regarding
these measures.  The consultations had subsequently been held in Brussels on 25 June 2003.
Unfortunately, they had failed to settle the dispute.  Canada,  therefore, respectfully requested,
pursuant to Articles 4 and 6 of the DSU, Article XXIII of the GATT 1994, Article 11 of the SPSAgreement, Article 19 of the Agreement on Agriculture and Article 14 of the TBT Agreement, that a
panel be established to settle this dispute.
26. The Chairman drew attention to the communication from Argentina contained in document
WT/DS293/17.
27. The representative of Argentina said that his delegation wished to make a statement regarding
its request for the establishment of a panel concerning the actions and measures taken by the EC that
affected the approval and marketing of agricultural biotechnology products.  For five years, the EC
had imposed a de facto  moratorium preventing the approval and processing of applications relating to
agricultural biotechnology products, without scientific evidence to justify it.  Furthermore, several EC
member States had banned a number of agricu ltural biotechnology products which had already been
approved at the EC's level.  The measures at issue included, depending on the case, failure to consider
or the suspension of consideration of applications for the endorsement or approval of agricultural
biotechnology products; undue delays in finalizing cons ideration of various applications for approval;
and bans introduced by EC member States.
28. Argentina considered that the conduct of the EC was an infringement of the WTO
Agreements and had adversely affected its interests by causing injury to agricultural exports to the
EC's market.  Indeed, agricultural exports accounted for over half of the total exports of Argentina,
which, moreover, was the second global producer and exporter of biotechnology products. For
Argentina the development of biotechnology was crucial to achieving greater competitiveness in
terms of agricultural production.  Therefore, any measure that involved a barrier to trade in
biotechnology products undermined the potential development of Argentina's export sector which had
more room for expansion.  Argentina was of the view that its prospects of increasing competitivenessin international markets had been adversely affected by the fact that it had been prevented from
improving its agricultural productivity.  In fact, the EC's action was reducing the likelihood of
Argentina incorporating biotechnological innovations into a series of agricultural products which, at
present, were unable to access the common market because of the above-mentioned de facto
moratorium.  This was proving to be particularly damaging to an agricultural exporter that alsohappened to be a developing country.
29. The EC's action was even more damaging, not only because it involved a Member with an
important market in terms of international trade, but also because it could also influence the measures
that might be taken by other Members afraid of suffering restrictions on the access of their own
agricultural products to the EC's market.  These circumstances had led Argentina to requestconsultations with the EC on 14 May 2003, which proved insufficient to provide a predictable
platform in terms of the EC's schedule for appr oving the said agricultural biotechnology products or
for lifting the bans imposed by member States.  Within the context of these consultations, the EC had
failed to respond to Argentina's requirements, no twithstanding their commitment to provide written
replies to the questions they received in advance.  Subsequent exchanges had also failed to provideWT/DSB/M/154
Page 8
Argentina with satisfactory answers.  Finally, as  the issue had been brought before the DSB, his
delegation would like to point out that the adoption of the EC's legislation on the traceability and
labelling of biotechnology products would not only do nothing to settle the present issue of the de
facto  moratorium and the bans by member States, but could also bring about new restrictions in terms
of access to the EC's market.  To sum up and in view of  Argentina's futile efforts to find a tangiblesolution to the problems that had arisen, Argentina had no alternative, but to request the establishment
of a panel to settle this issue. In this context, and, as requested by the United States, his delegation
considered that a single panel should be established in accordance with Article 9.1 of the DSU.
30. The representative of the European Communities sa id that on behalf of the EC he wished to
express surprise and disappointment with regard to the panel requests by Argentina, Canada and the
United States.  The reasons for the EC's surprise was twofold.  On the one hand, in spite of the
extensive explanations given by the EC, the requesting Members continued to insist that the ECapplied measures to prevent the entry and the marketing of GMOs in the EC.  The EC had repeatedly
made clear that the approval of genetically-modi fied organisms and genetically-modified food was
perfectly possible in the EC, that a number of applications were being examined at present, and that
decisions on pending applications would be taken within a short time-frame,  in accordance with the
relevant procedures.  18 GMOs and 15 food products derived from GMOs had been approved in theEC.  These GM products were imported each year by the EC.  He wished to make it very clear that, if
the goal of the requesting Members was that the EC's authorities apply less rigorous standards in the
examination of the pending applications, their action was doomed to fail.  On the other hand, the EC
had been willing to cooperate constructively with  the requesting Members in the context of the
consultations.  The EC had offered ample information and explanations on its legislative system andthe current state of play in terms of approvals of GM products.  It had provided additional
explanations as requested.  The EC was, therefore, surprised to get a panel request as a response.  The
EC had serious doubts that the complaining Members were really interested in seeking a satisfactory
outcome to the consultations.  The EC was particularly puzzled by the US attitude during the
consultations period, which cast doubts about its willingness to engage in a meaningful dialogue ingood faith, as required by the DSU provisions.  Th e EC was also extremely disappointed that the
Members requesting a panel at the present meeting had not chosen the path of international co-
operation as a means to build an appropriate framework for the successful development of
biotechnology, while seriously addressing any potenti al risks and social concerns.  The EC could not
avoid suspecting that their ultimate goal was to influence the sovereign decisions of all Members in
this sensitive field.  The EC was of the view that every country should be free to make its own
decisions and to determine the appropriate level of protection for its citizens.  The EC would standfirm to defend those principles, which were consistent with international law.  For the reasons he had
explained, the EC could not agree to the establishment of a panel at the present meeting.
31. The DSB took note of the statements and agreed
 to revert to these matters.
5. European Communities – Anti-dumping duties on malleable cast iron tube or pipe
fittings from Brazil
(a) Report of the Appellate Body (WT/DS219/AB/ R) and Report of the Panel (WT/DS219/R)
32. The Chairman drew attention to the communi cation from the Appellate Body contained in
document WT/DS219/9 transmitting the Appellate Body Report on "European Communities – Anti-
Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil", which had been
circulated on 22 July 2003 in document WT/DS219/A B/R, in accordance with Article 17.5 of the
DSU.  He reminded delegations that, in accordance with the Decision on Procedures for the
Circulation and Derestriction of WTO Documents contained in document WT/L/452, the Appellate
Body Report and the Panel Report pertaining to this case had been circulated as unrestricted
documents.  He recalled that Article 17.14 of the DSU required that:  "An Appellate Body report shallWT/DSB/M/154
Page 9
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 procedure is without prejudice to the right of Members to express their
views on an Appellate Body report".
33. The representative of Brazil said that on 22 July 2003, the Appellate Body had circulated its
Report on "European Communities – Anti-dumping Duties on Malleable Cast Iron Tube or Pipe
Fittings from Brazil" to Members, four months after the Panel had issued its Report on 7 March 2003.
In that dispute, Brazil had challenged the consistency of anti-dumping measures imposed by the EC
on imports of tube or pipe fittings from Brazil which had severely impacted Brazil's exports of that
product into the EC.  Brazil welcomed the adop tion of the Appellate Body Report in that the
Appellate Body found that the EC had breached Articles 6.2 and 6.4 of the Anti-Dumping Agreement
in not disclosing to the Brazilian exporter during the investigation all the available informationrelating to the injury factors listed in Article 3.4, hence preventing the Brazilian exporter from the full
defence of its interests throughout the investigation.  As underlined by the Appellate Body, Article 6
established a framework of procedural and due proc ess obligations which was central in anti-dumping
proceedings and had to be consistently applied by investigating authorities throughout the
investigation.  The findings of the Appellate Body confirmed that the analysis of all injury factorslisted in Article 3.4 must not only appear in the Provisional or Definitive Regulation in accordance
with Article 12, as already found by the Panel, but also be disclosed to the parties during the
investigation in order to allow the interested part ies to have the full opportunity to present their
defence as required by Article 6.
34. Brazil noted that, in this particular case, it had been faced with non-confidential documents
during the dispute settlement proceedings that had never been disclosed to the parties during the
investigation.  As the Appellate Body had put it, "[o]ne of the stated objectives of the disclosure
information required under Article 6.4 is to allow interested parties 'to prepare presentations on the
basis of this information.  The presentations referred to in Article 6.4 [...] logically are the principal
mechanism through which an exporter subject to an anti-dumping investigation can defend itsinterests.".
1' (emphasis added) Articles 6.2 and 6.4 were aimed at protecting fundamental procedural
rights.  Their violation consequently undermined the entire investigative process and could not be
cured retroactively.  These findings by the Appell ate Body were additional to the findings by the
Panel that the EC had acted inconsistently with  Article 2.4.2 of the Anti-dumping Agreement in
"zeroing" negative dumping margins in its dumping determination and that the EC had breached
Article 12.2 in that it was not discernible from the Provisional or Definitive Determination that the EC
had addressed or explained the lack of significance of certain injury factors listed in Article 3.4.  Inview of the nature of these violations – found both on the dumping side and at the core of the injury
side of the anti-dumping investigation at issue – Brazil submitted that any meaningful implementation
of the Panel and the Appellate Body rulings could not be "expected to have only a very limited impact
on the existing measures", as the EC assumed in a press release dated 22 July 2003.
35. Brazil was pleased that the EC – as announced on the very same day the Appellate Body
Report had been circulated – would comply with the DSB's recommendations.  In this respect, Brazil
considered that the violations found could not be rectified by a mere re-calculation of the dumping
margins and by a simple post facto disclosure of the analysis of the injury factors listed in Article 3.4,
because this would not cure the impairment of the Brazilian exporter's right for a full defence during
the investigation.  Brazil hoped that the finding s of the Panel and the Appellate Body would now
encourage the EC to conduct anti-dumping proceed ings in a fully transparent and due-process
compliant manner.
                                                     
1 At paragraph 149.WT/DSB/M/154
Page 10
36. The representative of the European Communities said that the EC wished to thank both the
Panel and the Appellate Body members for the excellent Reports they had produced.  In spite of the
highly technical and complex issues raised in these proceedings, the final result was very satisfactory.
The EC also wished to express its satisfaction over the fact that both these Reports represented an
additional important step in the further development and consolidation of the WTO jurisprudenceregarding the Anti-Dumping Agreement.  It was for these reasons that both Reports deserved
unanimous support.  Their adoption at the present meeting would also put an end to a long and in the
EC's view rather unnecessary dispute between the EC and Brazil and would allow its trade relations to
strengthen further.  At the same time, the EC wish ed to indicate that the findings of both Reports
reflected, once again, the high standards followed  by the EC in imposing anti-dumping measures in
conformity with the GATT/WTO commitments.  Needless to say that the EC would continue this path
of ensuring the WTO conformity of its trade defence measures.  In due course, the EC would be in theposition to inform the DSB in detail on the specific  steps it intended to take to implement the DSB
recommendations of concern to it.
37. The representative of Chile said that, as a third party to this dispute, his country wished to
comment briefly on some of the points raised in the Report of the Appellate Body that would be
adopted at the present meeting.  First of all, Chile shared the view put forward at paragraph 80 of theReport that introducing "a significant level of subjectivity on the part of the investigating authority"
was not consistent with the detailed nature of the rules and obligations of the Anti-Dumping
Agreement.  In this case in particular this "broad judgmental role", as the EC  put it, had  not obliged
the authority to favour certain months of the investigation period, in other words, the months
subsequent to devaluation of the Brazilian Real.  Nevertheless, and as the Appellate Body hadcorrectly pointed out, Article 11.1 of the Anti-Dumping Agreement was categorical that an
anti-dumping duty shall remain in force only as long as there was dumping that caused injury.  This,
in Chile's view should compel the investigating aut hority to re-examine the final ruling, even on its
own initiative.
38. Second, Chile agreed with the decision of the Appellate Body that had reversed one of the
Panel's findings and had determined that the EC ha d acted inconsistently with Articles 6.2 and 6.4 of
the Anti-Dumping Agreement, as indicated in paragraph 150 of its Report.  In fact, the Appellate
Body had rightly maintained that the concept of relevant information in Article 6.4 should not only be
understood from the perspective of the investigatin g authority, but also from the broader viewpoint of
the interested parties to the investigation.  An in terpretation of the standard of relevance that was
focused on the discretion of the investigating authority and not on the interested parties to the
investigation as suggested by the Panel would not only imply giving that authority the possibility torestrict arbitrarily the parties' access to the information – which was what had happened in this case -
but would also place a significant limitation on the rights of due process and defence, as parties would
not be able to prepare their cases with all the "relevant" information used by the authority in its
investigation.
39. Despite these findings, which confirmed the fact that the investigating authorities were
subject to a framework that did not allow for the exercise of discretion that might lead to abuse of
anti-dumping measures, one of the Panel's conclusions was a cause of great concern to Chile
(Paragraphs 151 to 166 of the Report).  It could even be argued that the Appellate Body, by not
requesting a specific and separate analysis of each of the factors mentioned in Article 3.4 of the Anti-
Dumping Agreement, was contradicting the above-mentioned findings as well as the position it hadmaintained in other Reports.  In Chile's view, the authority should not only analyse each and every
one of the 15 factors listed in the aforementioned Article 3.4, as the Appellate Body had repeatedly
maintained, but this analysis should also be adequa tely reflected in the authority's report.  Accepting
that the evaluation of one or more of these factors could be inferred from the analysis of other factors
or other sections of the report seriously limited the rights of process and defence.  Worse still, theobligation to analyse each and every one of these factors would turn into a dead letter.  This obligationWT/DSB/M/154
Page 11
was not fulfilled by an implicit analysis or an ex post  explanation by the authority that the evaluation
of one factor should be understood to include the anal ysis of other factors as well.  This finding of the
Panel had, once again, opened the door to discretio n on the part of the investigating authorities to
carry out a non-exhaustive analysis of the factors and indicators having a bearing on the state of the
domestic industry.  Such an analysis could lead to a determination of injury based on implicit crossreferences that were, therefore, contrary to the spirit and the letter of the Anti-Dumping Agreement.
40. The representative of the United States said that her country welcomed the opportunity to
comment on what it considered a generally well-reasoned report.  In particular, the United States
commended the careful textual analysis by the Appellate Body, as well as the Panel, of Article 3 of
the Anti-Dumping Agreement concerning the application of the cumulation provision.  The United
States was also pleased that the Appellate Body had recognized that the Agreement did not prescribe
any particular manner by which investigating authorities were to evaluate injury and causation.  Giventhe absence of specific methodologies in Articles 3.4 and 3.5 of the Anti-Dumping Agreement, the
Appellate Body had properly found that the Agreement did not as a rule impose a requirement to
conduct an examination of the collective effects of other known causal factors in addition to
examining the factors' individual effects.
41. The DSB took note of the statements, and adopted
 the Appellate Body Report contained in
WT/DS219/AB/R and the Panel Report contained in  WT/DS219/R, as modified by the Appellate
Body Report.
6. Appointment of Appellate Body members
42. The Chairman recalled that, at its meeting on 21 and 23 July 2003, the DSB had agreed that
he should conduct consultations with delegations regarding the positions on the Appellate Body
currently held by Messrs.  Abi-Saab, Ganesan and Taniguchi. Accordingly, he had invited delegations
with an interest in this matter to contact him and, between 23 July and 14 August, he had
communicated with all such delegations.  On Friday, 15 August, he had informed Members, by fax, of
the results of his consultations, and he wished to do the same, orally, at the present meeting.  He said
that no delegation had indicated that it wished to nominate candidates to replace Messrs. Abi-Saab, Ganesan, and Taniguchi, while there were those delegations that had indicated their wish to
reappoint them.  These delegations he had contacted were also all of the view that a decision on
reappointment of these three individuals should be taken by the DSB at its meeting on
7 November 2003. In light of the views of Member s, he would, therefore, like to propose at the
present meeting that a decision on reappointment of Messrs. Abi-Saab, Ganesan and Taniguchi be
taken by the DSB on 7 November 2003.
43. The DSB took note of the statement and agreed
 that a decision on reappointment of
Messrs. Abi-Saab, Ganesan and Taniguchi be take n by the DSB at its meeting on 7 November 2003.
44. The Chairman  further stated that he also wished to remind delegations that, according to the
decision taken by the DSB at its meeting on 21 and 23 July 2003, the process for selecting a new
member of the Appellate Body to replace Mr. Bacch us was underway.  At that meeting, the DSB had
decided that this process would be conducted in accordance with the procedures set out in the decisionof the DSB dated 10 February 1995 (WT/DSB/1).  In this context, he wished to remind delegations
that nominations, together with the curricula vitae of  candidates, should be submitted to the Director-
General and copied to the Chairman of the DSB.  As agreed, the deadline for nominations of
candidates was 5 September 2003.  Following the 5 September deadline, he would inform Members
of the candidates who had been nominated.  As it had been done in the past, the curricula vitae of thecandidates would be circulated as JOB documents to all Members.  The Selection Committee –
consisting of the Director-General and the 2003 Chairpersons of the General Council, the Goods
Council, the Services Council, the TRIPS Council and the DSB – would begin its work after theWT/DSB/M/154
Page 12
deadline of 5 September 2003.  The selection process would, as in the past, include an opportunity for
delegations to share their views on candidates with the Selection Committee.  As decided by the DSB
at its meeting on 21 and 23 July 2003, the Selection Committee would complete its work and make its
recommendation to the DSB by 24 October 2003; and a decision on a replacement for Mr. Bacchus
would be taken by the DSB at its meeting on 7 November 2003.
45. The DSB took note of the statement.
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