RESTRICTED  
  
WT/DSB/M/447  
19 February  2021 
(21-1415) Page: 1/27 
Dispute Settlement Body  
18 December 2020   
 
  
MINUTES OF MEETING  
HELD IN THE CENTRE WILLIAM RAPPARD  
ON 18 DECEMBER  2020 
Chairman : H.E.  Mr Dacio Castillo  (Honduras ) 
Prior to the adoption of the Agenda : (i) the Chairman  welcomed all delegations participating in 
person as well as those delegations that were listening -in remotely. He recalled that, as had been 
done at past DSB meetings, he would not be offering the floor to delegations participating remotely;  
and (ii) the item concerning the adoption of the Panel Report in the dispute on: "Indonesia – 
Measures Concerning the Importation of Chicken Meat and Chicken Products: Recourse to 
Article  21.5 of the DSU by Brazil " (DS484) was removed from the proposed Agenda following 
Indonesia 's decision to appeal the Panel Report . 
 
Table of Contents  
1  SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED 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 European Union ................................ ................................ ....... 4 
D. United States – Anti-dumping and countervailing measures on large residential 
washers from Korea: Status report by the United States  ................................ ..........................  6 
E. United States – Certain methodologies and their application to anti -dumping 
proceedings involving China: Status report by the United States  ................................ ...............  7 
F. Indonesia – Importation of horticultural products, animals and animal products: 
Status  report by Indonesia  ................................ ................................ ................................ ... 7 
2  UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: 
IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB  ..........................  8 
A. Statement by the European Union  ................................ ................................ .....................  8 
3  EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES 
AFFECTING TRADE IN LARGE CIVIL AIRCRAFT: IMPLEMENTATION OF THE 
RECOMMENDATIONS ADOPTED BY THE DSB  ................................ ................................ .... 9 
A. Statement by the United States  ................................ ................................ ........................  9 
4  AUSTRALIA – ANTI -DUMPING MEASURES ON A4 COPY PAPER: 
IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB  ........................  11 
A. Statement by Indonesia  ................................ ................................ ................................ . 11 WT/DSB/M/447  
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  5  THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE 
PHILIPPIN ES ................................ ................................ ................................ .................  12 
A. Statement by the Chairman on consultations with Thailand and the Philippines with 
regard to the recourse to Article 22.2 of  the DSU (WT/DS371/32)  ................................ ...........  12 
B. Statement by the Philippines  ................................ ................................ ..........................  12 
C. Statement by Thailand  ................................ ................................ ................................ ... 12 
6  STATE MENT BY CANADA ON PRACTICES CONCERNING THE USE OF FLEXIBLE 
ARRANGEMENTS IN DISPUTE SETTLEMENT PROCEEDINGS DURING THE 
COVID -19 PANDEMIC  (JOB/DSB/1/ADD.13)  ................................ ................................ . 14 
7  PROPOSED NOMINATION FOR THE INDICATIVE LIST OF GOVERNMENTAL AND 
NON-GOVERNMENTAL PANELISTS ................................ ................................ ..................  19 
8  APPELLATE BODY APPOINTMENTS: PROPOSAL BY AFGHANISTAN; ANGOLA; 
ARGENTINA; AUSTRALIA; BANGLADESH; BENIN; PLURINATIONAL STATE OF 
BOLIVIA; BOTSWANA; BRAZIL; BURKINA FASO; BURUNDI; CABO VERDE; 
CAMEROON; CANADA; CENTRAL AFRICAN REPUBLIC; CHAD; CHILE; CHINA; 
COLOMBI A; CONGO; COSTA RICA; CÔTE D'IVOIRE; CUBA; DEMOCRATIC 
REPUBLIC OF CONGO; DJIBOUTI; DOMINICAN REPUBLIC; ECUADOR; EGYPT; 
EL SALVADOR; ESWATINI; THE EUROPEAN UNION; GABON; THE GAMBIA; 
GHANA; GUATEMALA; GUINEA; GUINEA BISSAU; HONDURAS; HONG KONG, 
CHINA; ICELAN D; INDIA; INDONESIA; ISRAEL; KAZAKHSTAN; KENYA; 
REPUBLIC OF KOREA; LESOTHO; LIECHTENSTEIN; MADAGASCAR; MALAWI; 
MALAYSIA; MALDIVES; MALI; MAURITANIA; MAURITIUS; MEXICO; REPUBLIC OF 
MOLDOVA; MOROCCO; MOZAMBIQUE; NAMIBIA; NEPAL; NEW ZEALAND; 
NICARAGUA; NIGER;  NIGERIA; NORTH MACEDONIA; NORWAY; PAKISTAN; 
PANAMA; PARAGUAY; PERU; QATAR; RUSSIAN FEDERATION; RWANDA; 
SENEGAL; SEYCHELLES; SIERRA LEONE; SINGAPORE; SOUTH AFRICA; 
SWITZERLAND; THE SEPARATE CUSTOMS TERRITORY OF TAIWAN, PENGHU, 
KINMEN AND MATSU; TANZANIA; T HAILAND; TOGO; TUNISIA; TURKEY; 
UGANDA; UKRAINE; UNITED KINGDOM; URUGUAY; THE BOLIVARIAN REPUBLIC 
OF VENEZUELA; VIET NAM; ZAMBIA AND ZIMBABWE (WT/DSB/W/609/REV.19)  .........  19 
9  STATEMENT BY BRAZIL REGARDING THE PANEL REPORT ON:  "INDONESIA –MEASURES 
CONCERNING THE IMPORTATION OF CHICKEN MEAT AND CHICKEN PRODUCTS: 
RECOURSE TO ARTICLE 21.5 OF THE DSU BY BRAZIL"  ................................ ................................ ..........  26 
 
1  SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB  
A. United States – Anti-dumping measures on certain hot -rolled steel products from Japan : Status 
report by the United States (WT/DS184/15/Add.2 10) 
B. United States – Section 110(5) of the U S Copyright Act : Status report by the United States 
(WT/DS160/24/A dd.185) 
C. European Communities – Measures affecting the approval and marketing of biotech products : 
Status report by the European Union (WT/DS291/37/A dd.148) 
D. United States – Anti-dumpi ng and countervailing measures on large residential washers from 
Korea : Status report by the United States (WT/DS464/17/A dd.32) 
E. United States – Certain methodologies and their application to anti -dumping proceedings involving 
China : Status report by the United States (WT/DS471/17/A dd.24) 
F. Indonesia – Importation of horticultural products, animals and animal products : Status report by 
Indonesia (WT/D S477/21/A dd.19 – WT/DS478/22/A dd.19) 
 
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 reasonable period of time and shall remain on the DS B's 
Agenda until the issue is resolved". Under this Agenda item, he invited delegations to provide up to WT/DSB/M/447  
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  date information about their compliance efforts. He also reminded delegations that, as provided for 
in Rule 27 of the Rules of Procedure for DSB meetin gs: "[r]epresentatives should make every effort 
to avoid the repetition of a full debate at each meeting on any issue that has already been fully 
debated in the past and on which there appears to have been no change in Members' positions 
already on record" . He then turned to the first status report under this Agenda item . 
A. United States – Anti-dumping measures on certain hot -rolled steel products from 
Japan : Status report by the United States (WT/DS184/15/Add.2 10) 
1.2.  The Chairman  drew attention to document WT/DS184/15/Add.2 10, which contained the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning US anti –dumping measures on certain hot -rolled steel products from Japan . 
1.3.  The represe ntative of the United States  said that the United States had provided a status report 
in this dispute on 7 December 2020, in accordance with Article 21.6 of the DSU. The United States 
had addressed the DSB's recommendations and rulings with respect to the calculation of 
anti-dumping margins in the hot -rolled steel anti -dumping duty investigation at issue. With respect 
to the DSB's recommendations and rulings that had yet to be addressed, the US Administration 
would work with the US Congress with respect to the appropriate statutory measures that would 
resolve this matter.  
1.4.  The representative of Japan  said that his country wished to thank 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 resolv e this 
matter . 
1.5.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
B. United States – Section 110(5) of the US Copyright Act : Status report by the 
United  States (WT/DS160/24/Add.18 5) 
1.6.  The Chairman  drew attent ion to document WT/DS160/24/Add.18 5, which contained the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act . 
1.7.  The representative of the United State s said that the United States had provided a status 
report  in this dispute on 7 Decem ber 2020 , 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  thanked the United States for its statu s report and 
its statement made at the present meeting. His delegation wished to refer to the EU's statements 
made at previous DSB meetings under this Agenda item. The EU wished to resolve this dispute  as 
soon as possible . 
1.9.  The representative of China  said that, once again, his country wished to register its concern 
about US non -compliance with WTO rulings and its failure to provide sufficient protection of 
intellectual property rights . The United States continued to fail to full y compl y with the DSB's 
recommendations and rulings in this dispute . More than two decades after the DSB had adopted 
recommendations and rulings in DS160 , this dispute remained unresolved . None of  the 186 US 
status reports provided thus far indicate d any progress in imp lementation.  China believed that as a 
result, the United States continued to fail to accord the minimum standard of protection required by 
the TRIPS Agreement . The United States had also  become the only WTO Member who failed to 
implement DSB recommendation s and rulings under the TRIPS Agreement . To ensure effective 
resolution of disputes, Article 21.1 of the DSU require d Members to promptly bring its 
WTO-inconsistent measures into conformity . Therefore , China urged the United States to  faithfully 
honour this legal obligation and complete the implementation of  the DSB's recommendations and 
rulings  in this dispute without further delay .  
1.10.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . WT/DSB/M/447  
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  C. European C ommunities – Measures affecting the approval and marketing of biotech 
products : Status report by the European Union (WT/DS291/37/Add.14 8) 
1.11.   The Chairman  drew attention to document WT/DS291/37/Add.14 8, which contained the 
status report by the European Union on progress in the implementation of the DSB's 
recommendations in the case concerning measures affecting the approval and marketing of biotech 
products . 
1.12.   The representative of the European Union  said that during the online meetings of the Standing 
Committee on GM Food and Feed  held on 1 5 September  and 7 October  2020, the European 
Commission had presented for vote eight authori zations representing 38 possible GMOs .1 Due to the 
current public health situation, the voting was carried out by written proce dure ending ten working 
days after the date of the meeting concerned . The Standing Committee had not reach ed an opinion 
on the eight authori zations . The European Commission had presented those eight authori zations for 
a vote during the online Appeal s Committee meetings of 1 2 November  and 3 December  2020. The 
Appeal s Committee could not reach an opinion on the three authori zations presented at the 
12 November  2020 meeting .2 The outcome of the voting by written procedure following the 
3 December  Appeal s Committee should be available b efore the next regular DSB meeting.  The 
Standing Committee meeting had been  held online on 1 6 December  2020. The European 
Commission had presented two authori zations3 on which there w ould be a written voting procedure.  
The EU 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 1 2 June 2019, efforts to reduce delays in authori zation procedures were constantly 
maintained at a high level at all stages of the authori zation procedure.  The United States frequently 
referred to what was known as the EU "opt -out Directive". The EU wished to reiterate that the DSB 's 
recommendations and rulings d id not cover the "opt -out Directive". The EU act ed in line with its 
WTO obligatio ns. The EU wished to recall that the EU approval system was not covered by the DSB's 
recommendations and rulings . 
1.13.   The representative of the United States  thanked the European Union (EU) for its status report 
and its statement made at the present meeting. S ince the previous DSB meeting, the United States 
and the EU had conducted the semi -annual US -EU Biotechnology Dialogue on 22 October 2020. The 
EU had agreed to those consultations to normalize trade in light of the findings in this "EC – Approval 
and Marke ting of Biotech Products " dispute (DS291). During that meeting, the United States had 
emphasized its concern with the persistent delays arising from the EU's biotechnology approval 
process. A large number of applications had been awaiting approval for an e xtended period. To be 
clear, these delays had existed long before any COVID -19 restrictions had come into effect. The EU 
had suggested that, with respect to these delays, the fault was with the applicants. The United States 
disagreed. US concerns related t o delays at every stage of the approval process resulting from the 
actions or inactions of the EU and its member States. Recent outcomes of both the Standing 
Committee and Appeals Committee on Genetically Modified Food and Feed and Environmental Risk 
Asses sment demonstrated the political nature of the comitology process – which repeatedly delayed 
safe products from receiving approval in the European market. During the most recent Standing 
Committee meetings (15  September 2020 and 7  October 2020), EU member States had cited the 
"Precautionary Principle" and "scientific reasons" as justification for not issuing approvals. However, 
these claims contradicted the fact that the European Food Safety Authority (EFSA) had successfully 
completed a science -based risk a ssessment for every product under consideration at these meetings. 
EU member States at the Standing Committee had also cited "no agreed national position", "negative 
public opinion", and "political reasons" as justifications for reaching "no opinion" and f or not 
approving these products. As could be seen, none of these justifications were science -based. The 
Appeals Committee meeting held on 12  November 2020, which had been meant to address those 
 
1 Meeting of 15 September 2020: Soybean SYHT0H2, Maize MON 87427 x MON 89034 x MIR162 x NK603 
(stack + 10 possible sub -combinations = 11 GMOs), Maize MON 87427 x MON 87460 x MON 89034 x MIR162 x 
NK603 (stack + 14 possible sub -combinations = 15 GMOs. Meeting of 7 October 2020: 2 new authori zations 
(soybean MON 87751 x MON 87701 x MON 87708 x MON 89788, only stack approval, no  sub-combinations, and 
maize MON 87427 x MON 89034 x MIR162 x MON 87411, approval of stack and 6  sub-combinations) and 
3 renewals (maize MIR604, maize MON 88017, maize MON 890 34). 
2 Meeting of 12 November 2020: Soybean SYHT0H2, Maize MON 87427 x MON 89034 x MIR162 x NK603 
(stack + 10 possible sub -combinations), Maize MON 87427 x MON 87460 x MON 89034 x MIR162 x NK603 (stack 
+ 14 possible sub -combinations) . 
3 Meeting of 16 Decem ber 2020: Maize MZIR086 and Cotton GHB614 × T304 -40 × GHB119 . WT/DSB/M/447  
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  instances where member States reached "no opinion" regarding p roduct approvals, cited the 
foregoing reasons as justification for not issuing biotech product approvals. The United States failed 
to see how this approval process addressed the undue delays contemplated in this "EC – Approval 
and Marketing of Biotech Products " dispute (DS291). In this light, and taking into account the EU's 
statement made at the present meeting, the United States requested a further update from the EU 
regarding the outcomes of the Appeals Committee meeting held on 3 December 20 20 and the 
Standing Committee meeting held on 16 December 2020. The United States also urged and 
requested that the EU issue final approvals for those products that had completed science -based 
risk assessments at the EFSA, including those products that wer e with the Standing Committee, 
Appeals Committee, and the European Commission under these "internal procedures". At the time 
of the present meeting, approximately 20 applications were pending risk management decisions in 
the Standing Committee and Appeals Committee and two awaited final approval by the European 
Commission. Three of these applications had been going through the EU approval system for over a 
decade .  
1.14.   As the United States had stated at the 26 October 2020 DSB meeting, the United States did 
not acknowledge the EU's claims that there was no ban on genetically engineered (GE) products in 
the EU. Rather, the EU had failed to lift all of the WTO -inconsistent member -State bans covered by 
the DSB recommendation. The DSB had adopted findings that, even  where the EU had approved a 
particular product, in many instances EU member States had banned those products for certain uses 
without a scientific basis. This included not only the two EU member States subject to panel findings 
– Austria and Italy. There were also seven additional member States that had previously maintained 
bans on cultivation and had since opted out of cultivation under the EU's legislation: Bulgaria, France, 
Germany, Greece, Hungary, Luxembourg, and Poland. There were also nine EU membe r States that 
had not previously banned cultivation of MON -810 but had since opted out of cultivation under the 
EU's legislation: Croatia, Cyprus, Denmark, Latvia, Lithuania, Malta, the Netherlands, Slovakia, and 
Slovenia. Further, Austria and Italy appear ed to maintain bans on other products subject to specific 
Panel findings.  The EU's only response, which it continued to repeat, was that the EU member States 
did not restrict marketing or free movement of MON -810 in the EU. As the United States had noted 
at the 26 October 2020 DSB meeting, this answer did nothing to address US concerns. The United 
States also disagreed with the EU's response that opt -out procedures taken by EU member States 
were "proportional, non -discriminatory and based on compelling grou nds". The restrictions adopted 
by EU member States restricted international trade in these products and had no scientific 
justification. Furthermore, despite the assertions of the EU during the 26 October 2020 DSB meeting, 
this situation existed regardless  of whether or not the European Commission received "complaints" 
from seed operators or stakeholders. Indeed, this was why the DSB had adopted findings that such 
restrictions on MON -810 were in breach of the EU's WTO commitments. The United States urged th e 
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 . 
1.15.   The representative of the European Union  said that t he WTO Agreements d id not require full 
international harmoni zation and le ft some regulatory space or autonomy to individual WTO Members. 
The European Union ha d different regulatory approaches to GMOs and non -GMOs but, in all case s, 
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, an EU member State c ould 
adopt measures restricting or prohibiting cultivation only when such measures were in line with EU 
law and only when they were reasoned, proportional, non -discriminatory and based on compelling 
grounds. The free movement of seeds was embedded in Article 2 2 of Directive 2001/18/EC: 
"[m]ember States may not prohibit, restrict or impede the placing on the market of GMOs, as or in 
products, which comply with the requirements of this Directive ". The EU  also note d that according 
to the provisions of the opt -out Directive (Article 26b, point 8) the measures adopted under 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 the present meeting, the European Commission 
had never received any complaints from seed operators or other stakeholders concerning the 
restriction of marketing of MON -810 seeds in the EU. This confirm ed the smooth functioning of the 
internal market of MON -810 seeds. The EU invited the United States to provide any evidence the 
United States might have at its disposal substantiating the disruption of the free movement of 
MON-810 seeds in the EU . 
1.16.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . WT/DSB/M/447  
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  D. United States – Anti-dumping and countervailing measures on large residential 
washers from Korea : Status report by the United States (WT/DS464/17/Add.3 2) 
1.17.   The Chairman  drew attention to document WT/DS464/17/Add. 32, which contained the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning anti -dumping and countervailing measures on large residential  washers from Korea . 
1.18.   The representative of the United States  said that the United States had provided a 
status  report in this dispute on 7 December  2020, in accordance with Article 21.6 of the DSU. On 
6 May 2019, the US Department of Commerce had published a notice in the US Federal Register 
announcing the revocation of the anti -dumping and countervailing duty orders on imports of large 
residential washers from Korea (84 Fed. Reg. 19,763 (6 May 2019)). With this action, the United 
States had comple ted implementation of the DSB's recommendations concerning those 
anti-dumping and countervailing duty orders. The United States continued to consult with interested 
parties on options to address the DSB's recommendations relating to other measures challeng ed in 
this dispute . 
1.19.   The representative of Korea  said that his country wished to thank the United States for its 
status report. Once again, Korea urged the United States to take prompt and appropriate steps to 
implement the DSB's recommendations for the "as  such" measure at issue in this dispute . 
1.20.   The representative of Canada  said that the United States continued to fail to comply with the 
DSB's ruling, arising out of the Appellate Body report in this dispute, that the "differential pricing 
methodology" (DPM)  was "as such" WTO -inconsistent . The United States had also ignored the DSB's 
recommendation that the United States bring itself into compliance with its obligations. Instead, the 
United States continued to apply the "as such" inconsistent differential pri cing methodology in 
investigations with respect to foreign companies and continued to collect cash deposits from foreign 
exporters based on its inconsistent methodology . The reasonable period of time to implement the 
recommendations relating to the "as suc h" WTO -inconsistency of the DPM had expired more than 
two years ago . However, in its most recent status report, the United States stated that it continued 
to consult with interested parties . In fact, the United States continue d to ignore the DSB and its own 
obligations. In the November 2020 final results of an anti -dumping administrative review with 
respect to softwood lumber from Canada, the United States had persisted in applying the DPM to 
Canadian companies. The United State s had expressly noted that "[the US Department of] 
Commerce has not revised or changed its use of the differential pricing analysis, nor has the United 
States adopted changes to its practice pursuant to the URAA 's implementation procedure ".4 Finally, 
the continued use by the United States of the DPM had forced Members to resort to several dispute 
settlement proceedings concerning this measure. This was an inefficient and unnecessary use of 
dispute settlement resources . Canada remained deeply concerned with  the continued US failure to 
comply with the DSB's recommendations and rulings in this dispute. This failure seriously 
undermined the security and stability of the multilateral trading system . 
1.21.   The representative of the United States  said that the United St ates recalled that Canada had 
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 Panel 
had rejected Canada's arguments be cause they were unpersuasive and did not make sense of the 
text of the Anti -Dumping Agreement.  
1.22.   The representative of Canada  said that his country wished to recall that the Panel report in 
the "US – Differential Pricing Methodology " dispute  (DS534)  was currently under appeal . However,  
that appeal c ould not be heard because  the A ppellate Body was unable to function  due to the 
blockage of the appointment of A B members by the United States . 
1.23.   The DSB took note  of the statements and agreed  to revert to this ma tter at its next regular 
meeting . 
 
4 US Department of Commerce, Issues and Decision Memorandum for the Final Results of the  2017-2018 
Anti-Dumping Duty Administrative Review Certain  Softwood Lumber Products from Canada , p. 38.  WT/DSB/M/447  
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  E. United States – Certain methodologies and their application to anti -dumping 
proceedings involving China : Status report by the United States (WT/DS471/17/Add.2 4) 
1.24.   The Chairman  drew attention to document WT/DS471/17/Add.2 4, which contained the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning certain methodologies and their application to anti -dumping proceedings involving 
China . 
1.25.   The representative of the United States  said that the United States had provided a status 
report in this dispute on 7 December  2020, in accordance with Article 21.6 of the DSU. As explained 
in that report, the United States continued to consult with interested p arties on options to address 
the DSB's recommendations . 
1.26.   The representative of China  said that , on 22 May 2017, the DSB had adopted the Appellate 
Body Report and the Panel Report, as modified by the Appellate Body, in this dispute , which had 
found that a series of US  measures had violated  various provisions of the Anti -Dumping Agreement, 
which included:  (i) the use of zeroing under the W -T methodology was as such incompatible with 
Article 2.4.2 ; (ii) the so -called single rate presum ption as such violated Articles 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 . The arbitration pursuant to Article 21.3(c) of the DSU had 
decided  that the reasonable period of time (RPT) would be 15 months, expiring on 22 August 2018 . 
In response to the continued US failure to implement  the DSB 's recommendations and rulings in this 
dispute , China had request ed the authorization to retaliate pursuant to  Article 22.2 of the DSU . The 
arbitration under Article 22.6 of the DSU  had later determined that the level of nullification or 
impairment caused by the United States was US $ 3.579 billion . China expressed  grave concern over 
the sta lled US implementation . None of its 2 5 status reports provided thus far indicated any 
implementation action . Nearly  43 months after the DSB had adopted the Appellate Body Report and 
the Panel Report, as modified by the Appellate Body, in this dispute , and 2 8 months after the RPT 
had expired, the DSB's recommendations and rulings in this dispute  did not bring much for China 
other than a piece of paper . Unfortunately, what China had experienced in this dispute was  not 
exceptional . While the Unite d States continue d to insist on  prompt implementation in its offensive 
cases, its standard chang ed when it c ame to its defensive cases . Substantial delays or even complete  
disregard of its implementation obligations had repeatedly occurred . This severely u ndermine d the 
effectiveness of the dispute settlement system and erode d Members ' confidence in the rules -based 
multilateral trading system.  Article 21.1 of the DSU stated that: "[p]rompt  compliance with 
recommendations or rulings of the DSB is essential in order to ensure effective resolution of disputes 
to the benefit of all Members" . China  urged the United States to fulfil its implementation obligation 
in this dispute without further de lay. 
1.27.   The representative of the United State s said that t he United States was aware that the 
reasonable period of time, as determined by an arbitrator under Article 21.3(c) of the DSU,  had 
expired on 22 August  2018.  As explained in the US status report, the United States continue d to 
consult with interested parties on options to address the DSB's recommendations.  The United States 
was willing to discuss this matter with China on a bilateral basis.  
1.28.   The DSB took note  of the statements and agreed  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.1 9 – WT/DS478/22/Add.1 9) 
1.29.   The Chairman  drew attention to document WT/DS477/21/A dd.19 – WT/DS478/22/Add.1 9, 
which contained the status report by Indonesia on progress in the implementation of the DSB's 
recommendations in the case concerning importation of horticultural products, animals and animal 
products . 
1.30.   The representative of Indonesia  said that his country had provided a status report pursuant 
to Article 21.6 of the DSU . Indonesia reiterate d its commitment to implementing  the DSB 's 
recommendations and rulings in these disputes . Indonesia ha d also taken note of the continued 
concerns raised by New Zealand and the United States  at previous DSB meetings , in particular with 
regard to measures 1 –17. With respect to measure 18, Indonesia w ished  to inform the DSB  that the WT/DSB/M/447  
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  draft amendment s to the relevant laws , which address ed this specific measure and ha d been 
previously agreed by the Government and the Parliament, ha d been officially signed by the President . 
The new Law had been  promulgated and ha d entered into force on 2 November  2020. Indonesia 
would continue  to engage with New Zealand and the United States regarding matters related to the 
DSB's recommendations and ruling s. 
1.31.   The representative of the United States  thanked Indonesia for its status report . The United 
States understood that Indonesia had recently amended the relevant laws that would address 
Measure 18. The United States looked forward to receiving further detail from Indonesia regarding 
these legislative changes and their implementation by the government. The United States hoped to 
work with Indone sia to ensure that Indonesia's import licensing regime was free from the measures 
at issue, including the imposition of harvest period restrictions, import realization requirements, 
warehouse capacity requirements, limited application windows, limited vali dity periods, and fixed 
licensed terms. The United States remained willing to work with Indonesia to fully and meaningfully 
resolve this dispute . 
1.32.   The Chairman  said that he wished to inform delegations that the delegation of New Zealand 
was unable to be physically present in the meeting room at the present meeting and had therefore 
requested that its statement be delivered on behalf of New Zealand under this sub-item. He then 
requested the Secretariat to read out the statement on behalf of New Zealand.  
1.33.   As requested by the Chairman, the representative of the Secretariat read out the following 
statement on behalf of the delegation of New Zealand : New Zealand  wished  to thank Indonesia for 
its status report and acknowledge d Indonesia 's commitment to comply fully with the  DSB's 
recommendations and rulings in this dispute . However,  both compliance deadlines ha d long since 
expired, and a number of measures remain ed non-compliant . These include d Measure 18  and the 
continued enforcement of limited application windows and validity periods , harvest period import 
bans, import reali zation requirements  and restrictions placed on import volumes based on storage 
capacity.  New Zealand was particularly concerned that difficulties continue d to be experienced in 
obtaining import recommendations and approvals . New Zealand  would be watching closely as the 
application windows for the 2021 import period open ed. New Zealand underst ood that Indonesia 's 
Parliament ha d recently passed the Job Creation Bill . However, New Zealand  did not yet have the 
information necessary to assess what impact this w ould have on Indonesia 's compliance with the 
DSB's recommendations and rulings in this dis pute, in particular in respect of Measure 18.  
New Zealand strongly encourage d Indonesia to achieve full compliance in this dispute . 
1.34.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting . 
2  UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000 : 
IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB  
A. Statement by the European Union  
2.1.  The Chairman  said that this item was on the  Agenda of the present meeting at the request of 
the European Union. He then invited the representative of the European Union to speak . 
2.2.  The representative of the European Union  said that d espite the repeated indicat ions by the 
United States  that the DSB 's recommendations and rulings had been  fully implemented by adopting 
the Deficit Reduction Act in 2013, disbursements under the Continued Dumping and Subsidy Offset 
Act (CDSOA ) had been made every year since . Every disbursement that still t ook place under this 
legal basis was clearly an act of non -compliance with the DSB's recommendations and rulings  in this 
dispute . For this Agenda  item to be considered resolved and removed from the DSB's surveillance, 
the United States had to  fully stop trans ferring collected duties . The EU w ould continue to p lace this 
item on the A genda of DSB meetings as long as the U nited States had not fully implemented the 
DSB's recommendations and rulings  and the disbursements had not cease d completely . The EU 
would continue to insist – as a matter of principle – independently of the cost resulting from the 
application of such limited duties . The EU reiterated  its call on the United States to abide by its clear 
obligation under Article 21.6 of the DSU to submit imple mentation reports in this dispute since the 
issue remain ed unresolved . If the U nited States did not agree that the issue remain ed unresolved, 
nothing prevent ed it from seeking a multilateral determination through a compliance procedure . WT/DSB/M/447  
- 9 - 
  2.3.  The representative of Canada  said that his country wished to thank  the European Union for 
placing this item on the Agenda of the present meeting . Canada agreed with the EU that the Byrd 
Amendment should remain subject to the surveillance of the DSB until the United States ceased to 
administer it . 
2.4.  The representative of the United States  said that as the United States had noted at previous 
DSB meetings, the Deficit Reduction Act – which included a provision repealing the Continued 
Dumping and Subsidy Offset Act of 2000 – had been enacted into law more than 14 years ago in 
February 2006. The Deficit Reduction Act did not permit the distribution of duties collected on goods 
entered after 1 October 2007, more than 12 years ago . Accordingly, the United States had long ago 
implemented the DSB's recommendations and rulings in these disputes. Eve n aside from this, it was 
evidently not common sense that was driving the EU's approach to this Agenda item . On 
26 June 2020, the EU had notified that it would apply an additional duty of 0.012 % on certain 
imports of the United States . There was no trade r ationale for inscribing this item month after month. 
As it had done many times before, at the 26 October 2020 DSB meeting, the EU had once again 
called on the United States to abide by its "clear obligation" under Article 21.6 of the DSU for the 
United Sta tes to submit a status report in this dispute. Notably, the EU had not called on any other 
Member in any other dispute to abide by this so -called "clear obligation", despite the fact that several 
Members were in the same situation as the United States. As the United States had explained 
repeatedly, there was no obligation under the DSU for a Member to provide further status reports 
once that Member announced that it has implemented  the DSB's recommendations. The widespread 
practice of Members – including th e European Union as a responding party – confirmed this 
understanding of Article 21.6. Indeed, at recent meetings, three Members – Australia, Brazil, and 
China – had informed the DSB that they had come into compliance with the DSB's recommendations 
in four  disputes (DS472, DS497, DS517, and DS529), and the complaining parties had not accepted 
the claims of compliance. Those Members announcing compliance had not provided status reports 
for the present meeting. This was consistent with the understanding that there was no obligation for 
a Member to provide further status reports once that Member announced that it had implemented 
the DSB's recommendations. The EU was the complaining party in one of those disputes (DS472). 
If the EU believed that status reports w ere "required" under the DSU, it would have insisted that the 
responding Member provide a status report in that dispute, or the EU would have inscribed that 
dispute as an item on the present meeting's Agenda. The EU had taken neither action. Therefore, it 
was once again clear that the EU did not truly believe that there was a "clear obligation" under 
Article  21.6 of the DSU to submit a status report after a party had claimed compliance. The EU had 
simply invented a rule for this dispute, involving the Unite d States, that it did not apply to other 
disputes involving other Members . 
2.5.  The DSB took note of the statements.  
3  EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES AFFECTING 
TRADE IN LARGE CIVIL AIRCRAFT : IMPLEMENTATION OF THE RECOMMENDATIONS 
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  noted that once again the European Union had 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  had argued – under a 
different Agenda item – that where the EU as a complaining party did not agree with the responding 
party Member's " assertion  that it has implemented the DSB ruling", "the issue remains unresolved 
for the purposes of Article 21.6 of th e DSU".  Under this Agenda item, however, the EU argued that 
by submitting a compliance communication, the EU no longer needed to file a status report, even 
though the United States as the complaining party did not agree with the EU's assertion that it had 
complied . The EU's position was erroneous and not based on the text of the DSU. The EU argued 
that where "a matter is with the adjudicators, it is temporarily taken out of the DSB's surveillance" 
and the DSB was somehow deprived of its authority to "mainta in surveillance of implementation of 
rulings and recommendations". Yet, there was nothing in the DSU text to support that argument, 
nothing in Article 2 of the DSU or elsewhere that limited the DSB's authority in this manner, and the 
EU provided no explana tion for how it read Article 21.6 of the DSU to contain this limitation. The EU WT/DSB/M/447  
- 10 - 
  was not providing a status report because of its assertion that it had complied, demonstrating that 
the EU's principles varied depending on its status as complaining or respond ing party. The US 
position on status reports had been consistent: under Article 21.6 of the DSU, once a responding 
Member announced to the DSB that it had complied, there was no further "progress" on which it 
could report, and therefore no further obligati on to provide a status report. But as the EU allegedly 
disagreed with this position, it should for future meetings provide status reports in this "EC – Large 
Civil Aircraft " dispute (DS316). The  United States noted that it was committed to obtaining a 
long-term resolution of this dispute. The United States had recently showed great restraint in its 
review of WTO -authorized countermeasures for the EU's WTO -inconsistent launch subsidies. The 
United States continued to engage with the EU to seek an agreement t hat would remedy the conduct 
that harmed the US aviation industry and workers and would ensure a level playing field for 
US companies . 
3.3.  The representative of the European Union  said that , as during  previous DSB meetings, the 
United States had implied that the EU was taking inconsistent positions under Article 21.6 of the 
DSU, depending on whether the EU was a complaining party or a defending party in a dispute . The 
US assertions were without merit. As the EU ha d repeatedly explained during  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 . In the "EC – Large Civil Aircraft" (DS316)  case (the Airbus case) , the dispute 
was at a stage where the defending part y did not have an obligation to submit status reports to the 
DSB. The EU  wished  to remind that in the Airbus  case, the EU had notified a new set of compliance 
measures to the DSB . That new set of compliance measures  had been  a clear demonstration that 
the EU – contrary to the U nited States in the parallel "US – Large Civil Aircraft ( second  complaint)"  
case (DS353)  (the Boeing -case) – was serious about and committed to achieving compliance . That 
new set of compliance measures had been  subject to an assessment by a compliance panel and that 
panel report had been  issued on 2 December 2019. As noted in the EU's  statement made at the 
18 December 2019 DSB meeting, the EU believed  that significant aspects of the compliance panel 
report c ould not be regarded as legally correct and were very problematic from a systemic 
perspective when it c ame to assessing compliance with the subsidy disciplines of the WTO 
Agreements . It was in order to have these leg al errors corrected that the EU ha d filed an appeal 
against the compliance panel report on 6 December 2019. The EU was  concerned that with the 
current blockage of the two -step multilateral dispute settlement system, the EU was  losing the 
possibility of a p roper appellate review of the serious flaws contained in the panel report . While the 
blockage continue d, the EU  stood ready to discuss with the U nited States alternative ways to deal 
with this appeal. The EU was  also committed to finding a balanced negotia ted solution with the 
United States that would allow leaving both aircrafts disputes behind them. 
3.4.  The EU noted that  these considerations d id not, however, alter the fact that the compliance 
proceeding in this dispute ha d not been concluded. Whether or not the matter was "resolved" in the 
sense of Article 21.6 of the DSU remain ed the very subject matter of this ongoing litigation . The EU 
asked h ow it could be claimed  that the defending party should submit "status reports" to the DSB in 
these circumstances . The EU would be very concerned with a reading of Article 21.6 of the DSU that 
would require the defending party to notify the purported "status of its implementation efforts" 
through the submission of status reports to th e DSB, while dispute settlement proceedings on that 
precise issue were ongoing . The EU note d that its reading of the provision was supported by other 
WTO Members. The view of the European Union was further supported by Article 2 of the DSU on 
the administr ation of the dispute settlement rules and procedures: where, further to the 
disagreement between the parties on compliance, a matter was with the adjudicators , it was 
temporarily taken out of the DSB's surveillance . Instead of progressively stepping -up ret aliatory 
measures , the EU and the United States  should step them down . With that in mind, the EU reaffirm ed 
its determination to obtaining a long -term resolution to the WTO aircrafts disputes. A balanced 
negotiated settlement was the only way to avoid mutually imposed countermeasures . The EU 's 
willingness to find a negotiated solution was also shown by its notification dated  21 August 2020, 
which had been  discussed at the 28 August and 28 September 2020  DSB meeting s, of additional 
and extraordinary compliance measures that withdr ew all remaining subsidies and constitute d 
appropriate steps to remove adverse effec ts, substantially in excess of what was required by 
Article  7.8 of the SCM Agreement. These additional and extraordinary measures went far beyond 
what was required in order to discharge the EU's compliance obligations under Article 7.8 of the SCM 
Agreement . The EU ha d procured these additional, extraordinary and costly compliance measures in 
an effort to persuade rational and reasonable stakeholders in the United States, including 
consumers, employers, workers, government officials and entities, airlines an d other economic 
operators, that now was the time to draw a line under these disputes. It was not in the interests of WT/DSB/M/447  
- 11 - 
  anyone that the EU and the United States proceed to, or continue, mutually assured retaliation, and 
certainly not in the current economic climate . 
3.5.  The representative of the United States  said that the United States was aware that the EU had 
recently filed yet another notice of supposed compliance. The United States disagreed that the EU 
had achieved compliance. Instead, the United States agr eed with the second compliance panel 
report, which had rejected the EU's assertions and had found that eight EU launch aid subsidies 
continued to cause adverse effects. The EU asserted that it had amended two of these eight 
measures; and therefore, it admi ttedly had made no changes to six WTO -inconsistent measures. 
Unfortunately, the amendments the EU had made to French and Spanish A350 XWB launch aid were 
marginal and insufficient to withdraw those subsidies. The EU had also expressed doubt about US 
compli ance in the "US – Large Civil Aircraft (second complaint)" dispute (DS353). But no one could 
deny that Washington State had terminated the aerospace tax break – and the EU had not denied 
it. The text of the measure was public, and its terms had been notifi ed to the WTO and the EU. This 
was the sole measure found to cause adverse effects in the compliance proceeding and the sole 
basis for countermeasures authorized by the WTO. As it clearly had been withdrawn, the EU had no 
basis for countermeasures of any k ind. However, the United States continued to engage with the EU 
to seek an agreement that would remedy the conduct that harmed the US aviation industry and 
workers and would ensure a level playing field for US companies . 
3.6.  The representative of the European  Union  said that t he United States had stated that the EU 
assert ed that it ha d amended only two of its eight measures at issue and had admitted that the re 
had been no changes to the other six measures. The EU simply wished  to mention that the EU 
reiterate d its position , as previously expressed, that the compliance proceeding in this dispute ha d 
not been concluded due to the current blockage of the two -step multilateral dispute settlement 
system . Moreover, some of the measures mentioned by the U nited States had actually been 
amended and the EU ha d fully explained this to the United States.  Finally, it also had to be noted 
that the other contested measures relate d to the Repayable Launch Investment for the development 
of the A380 aircraft model . It was well known that Airbus had decided , in 2019 , to completely 
wind-down the A380 programme . The production line was closed,  and employees ha d been moved 
to other operat ions. Therefore, the  A380 RLI c ould not cause any more adverse effects  on the United 
States . 
3.7.  The DSB took note of the statements.  
4  AUSTRALIA – ANTI -DUMPING MEASURES ON A4 COPY PAPER : IMPLEMENTATION OF 
THE RECOMMENDATIONS ADOPTED BY THE DSB  
A. Statement by Indonesia  
4.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
Indonesi a. He then invited the representative of Indonesi a to speak . 
4.2.  The representative of Indonesia  said that o n 4 December  2019, the Panel r eport in this dispute 
had been  circulated to WTO Members . The Panel had recommended that Australia bring its measure 
into conformity with its obligations under the Anti –Dumping Agreement . The DSB had  adopted  the 
Panel report on 2 7 January  2020. Following the adoption of the Panel report, Article 21.6 of the DSU 
provides 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 
followin g the date of establishment of the reasonable period of time pursuant to paragraph 3 ". In 
this regard, Indonesia note d that Australia had provided a status report ahead of the  
28 September  2020 DSB meeting . In that status report,  Australia had stated that it had brought 
itself into full compliance with the DSB's recommendations and rulings following the decision by the 
Australian Minister for Industry, Science, and Technology dated  11 September  2020. However, while 
Indonesia appreciate d the current effort s of Australia to implement the DSB's rulings and 
recommendations  in this dispute , Indonesia ha d yet to agree with Australia's  assertion o f full 
compliance.  
4.3.  Indonesia 's position in this context was based on a reasonable concern over the lack of finality 
of the Australian Industry Minister 's decision . Upon the publication of the Industry Minister 's decision 
on 14 September  2020, Indonesia underst ood there had been  an opportunity for interested parti es WT/DSB/M/447  
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  to submit an application for review within 30 days of such  publication . Indonesia  had found that an 
application for the  review the Minister 's decision had been  filed by an interested party in 
October  2020, and that Australia 's Anti –Dumping Review Panel  had initiated a review on 
30 October  2020. Indonesia believed  that the ongoing review m ight lead to the revocation of  the 
Minister 's decision to revok e the anti -dumping order and to substitute it with a new decision which 
could reinstate the anti -dumping o rder. Should that occur , Indonesia believed  that this w ould 
continue to infringe on Indonesia 's export of A4 Copy Paper to Australian market and consequently, 
on Australia 's compliance with the DSB's recommendations and rulings.  Considering that the 
resolution o f this dispute ha d yet to be reached, Indonesia wished  to draw attention to Article  21.6 
of the DSU which provide d that: "[u]nless the DSB decides otherwise, the issue of implementation 
of the recommendations or rulings shall be placed on the a genda of the DSB meeting  … and shall 
remain on the DSB 's agenda until the issue is resolved ". However, Indonesia  believe d that Members 
would not find any status report from Australia on the Agenda of the present  meeting with regard 
to this issue.  Indonesia , therefore, strongly encourage d Australia to provide a status report in respect 
of this dispute to th e DSB , as its obligation to do so was clearly set out in Article 21.6 of the DSU.  
4.4.  The representative of Australia  said that her country  took note of Indonesia 's statement on this 
matter.  As Australia had notified at the 2 8 September  2020 DSB meeting , the decision of the Minister 
for Industry, Science, and Technology to revoke the anti -dumping measures at issue in this dispute 
had brought  Austr alia into full compliance with the DSB's  recommendations and rulings.  Since the 
relevant anti -dumping measures ha d been – and remain ed – revoked, there was nothing further for 
Australia to report to the DSB regarding the status of its implementation.  As required by Article 13 
of the Anti -Dumping Agreement, Australia 's anti -dumping system provide d procedures for 
independent administrative and judicial review of anti -dumping decisions.  As Indonesia ha d noted, 
on 30 October  2020, the Australian Anti -Dumping Re view Panel (Review Panel) had initiated a review 
of the Minister 's decision following an application by Paper Australia Pty Ltd.  The Government of 
Indonesia and the two relevant Indonesian exporters ha d made submissions to the Review Panel.  
The Review Pane l was due to provide its report and recommendations to the Minister on or before 
18 January  2021. In usual circumstances, the Minister w ould then have 30 days to make a decision.  
Unless and until anything happen ed to alter the Minister 's original revocation decision in a manner 
that raise d a dispute about whether Australia ha d implemented the Panel 's findings, Australia  
consider ed the issue of implementation to be resolved.  Australia would  continue to engage 
constructively with Indonesia in this ma tter. 
4.5.  The representative of Indonesia  said that his country  thank ed Australia for its response to its 
previous statement . In that regard, Indonesia  wished to highlight that Indonesia was  not in a position 
to agree with Australia 's arguments and position wi th regard to Article 21.6 of the DSU. It was clearly 
set out in Article 21.6 that the issue of implementation of the recommendations and rulings "shall 
remain on the DSB 's agenda until the issue is resolved ". Hence, Indonesia  believe d that the lack of 
any progress  or development on the Australian Minister 's decision, as indicat ed by Australia, d id not 
exempt Australia from its obligation to provide status report s to the DSB.  Therefore, Indonesia 
wished,  once again , to strongly encourage Australia to fulfil its obligation under Article 21.6 DSU by 
providing status report s to the DSB. 
4.6.  The DSB took note of the statements.  
5  THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE 
PHILIPPINES  
A. Statement by the Chairman on consultations with Thailand and the Philippines with 
regard to the recourse to Article 22.2 of the DSU (WT/DS371/32)  
B. Statement by the Philippines  
C. Statement by Thailand  
5.1.  The Chairman  said that , under the first sub -item, he wished to make a statement under his 
own responsibility in order to report to delegations on his consultations with Thailand and the 
Philippines in the "Thailand – Cigarettes (Philippines)" dispute (DS371) . His statement was w ithout 
prejudice to the rights and obligations of the parties to this dispute or of any other Member . He 
recalled that these consultations had first been conducted by the previous DSB Chair man, WT/DSB/M/447  
- 13 - 
  Amb.  Walker, prior to the 5 March 2020 DSB meeting. At that meeting, the matter had been 
suspended in order to allow more time for consultations. The Chairman said that, f ollowing his 
appointment as DSB Chair man on 20 May 2020, he had been consulting with Thail and and the 
Philippines on this matter . He had held virtual intensive consultations with the parties in preparation 
for the 29 June 2020 DSB  meeting . Following the 29 June 2020 DSB meeting, he had continued his 
intensive consultations with the parties to t his dispute and had held three meetings to discuss this 
matter.  Immediately after the 29  July 2020 DSB meeting, he had  held another meeting in -person 
with the parties to this dispute on 30 July 2020. Subsequently, he had reported back to the 
Membership on this matter at the 28 August 2020 DSB meeting . Following that meeting, he had  
continued to consult with the parties to th is dispute and had had written exchanges with both parties 
on this subject . He had  held another in -person meeting on 2 3 September  to further discuss this 
matter . He had  also reported back to the Membership on this matter at the 2 8 September  2020 DSB 
meeting . Subsequently, he had  had additional written exchanges with both parties to this dispute 
on this subject and had reported to delegati ons on this matter at the 2 6 October  2020 DSB meeting . 
During the month of November and in the beginning of December , he had  held several meetings 
with the parties to this dispute , both virtual ly and in -person . As a result of this consultative process, 
he was  pleased to announce that the parties ha d agreed to a new step, namely the appointment of 
Amb. George Mina of Australia as a Facilitator to deepen the Chair man's consultative process . The 
Facilitator w ould seek to identify and make recommendations to the parties on ways and means of 
resolving the relevant outstanding issues, which w ould include both procedural and/or substantive 
approaches, including a potential comprehensive settlement, subject to the parties'  agreement . A 
communication to this effect w ould be circulated shortly to all delegations . He wished  to congratulate 
Thailand and the Philippines on this step forward aimed at resolving this important matter and 
thank ed Amb. Mina for his willingness to tak e on this important role.  
5.2.  The DSB took note of the statement.  
5.3.  The Chairman  invited the representative of the Philippines to speak.  
5.4.  The representative of the Philippines  said that his country wished to t hank the Chairman for 
his report . The Philippines , once again , wishe d to express its sincere appreciation for the Chair man's 
ongoing efforts.  The Philippines ha d been patient and cooperative throughout the Chair man-led 
process that had transpired in 2020. The Philippines  took note of the Chair man's proposal for a 
Facilitator -assisted consultative process in terms of next steps . While the Philippines  remain ed 
concerned that this Facilitator -assisted process could  delay resolution of the issue at hand, the 
Philippines trust ed that the Facilitator  would build on the clarification process that the Chair man had 
undertaken in 2020 and arrive d at a time -bound recommendation.  The Philippines expresse d its 
appreciation to the Facilitator for accepting this responsibility . The Philippines  acknowledge d and 
welcome d the Facilitator's intention to begin work on this new process as soon as possible . The 
Philippines  also express ed its appreciation to its ASEAN Member and colleague, Thailand , and 
Amb.  Sunanta for making this process possible . However, the Ph ilippines  wished to underscore that 
the more important consideration was to preserv e the dispute resolution system and to arrive at an 
early resolution or a comprehensive resolution of the issues at hand and further enhance the dispute 
resolution system de spite the current impass e. The Philippines wishe d to reiterate its statements 
made  at the past five DSB meetings . The Philippines  sincerely hope d that the 
"question -response -comment " phase of the Chair man-led process ha d provided the much -needed 
clarity to move forward with the Philippines ' request under Article  22.2 of the DSU . As the Philippines  
had set out in its statements made at previous DSB meetings under this Agenda item, as well as in 
the consultations with the Chair man, the Philippines r emained open, ready, and willing to engage 
constructively with Thailand . At th e present  meeting, therefore,  the Philippines reiterate d its 
positions on the legal procedures necessary to move forward or to arrive at a comprehensive 
settlement.  
5.5.  The DSB took note of the statement  made by the Philippines . 
5.6.  The Chairman  invited the representative of Thailand  to speak.  
5.7.  The representative of Thailand  said that , as mentioned by  the Chairman , the latest 
development  was indeed very good news. Thailand w ished to express its sincere appreciation for  
the Chairman 's continued assistance on this issue. Thailand  welcome d the Understanding that ha d 
been agreed upon between the parties to deepen  the process of consultations with the assistance of 
a Facilitator. In this regard, Thailand greatly appreciate d the willingness of Ambassador of Australia  WT/DSB/M/447  
- 14 - 
  to take up this challenging task in assisting the parties to identify  solutions that could resolve the 
outstanding differences in this  dispute. Thailand  also thank ed the Philippines for its cooperative 
spirit. Thailand look ed forward to the next steps in this consultative process.  
5.8.  The DSB took note of the statement  made by Thailand . 
5.9.  The representative of Australia  said that he believed that he  spoke for the entire Membership 
in recogni zing the very positive step forward that the Philippines and Thailand  had taken in agreeing 
to engage in Facilitator -assisted discussions.  It was a significant and positive move that Members  
were witnessing being taken at the present meeting  by both parties – and it demonstrate d the good 
faith that was evident on both sides.  Their decision to take this step augur ed well for the next steps 
in the dispute resolution process.  He wished to  thank the Cha irman , as well as his  friends , 
Amb.  Sunanta of Thailand and Amb. Teehanke of the Philippines , for entrusting him with the role of 
Facilitator in this important process.  The prompt resolution of disputes was of course one of the core 
principles of the WTO d ispute settlement system . Members  should be using all means available to 
them – such as the process that was  begin ning at the present meeting  – to facilitate the orderly 
resolution of disputes.  He looked forward to working constructively with Thailand and the Philippines 
to find a path towards resolution.  
5.10.   The representative of Japan  said that , at the outset, his country  wished  to emphasize that 
Japan d id not intend to make a statement t hat would  take side  either with Thailand or the Philippines  
in this matter . Japan appreciate d the assistance of the Chair man, as well as that of the Facilitator . 
Japan continue d to believe  that Thailand and the Philippines should cooperat e in good faith to find a 
realistic s olution to the ir disagreement over the procedural aspects of this dispute, with the 
necessary assistance of the Chair man and the Facilitator.  
5.11.   The Chairman , once again, congratulate d Thailand and the Philippines on reaching this 
important agreement for a further Facilitator -assisted consultative process at this point in time. This 
was of course a positive sign for the entire dispute settlement system . 
5.12.   The DSB took note  of the statemen ts. 
6  STATEMENT BY CANADA ON PRACTICES CONCERNING THE USE OF FLEXIBLE 
ARRANGEMENTS IN DISPUTE SETTLEMENT PROCEEDINGS DURING THE COVID -19 
PANDEMIC (JOB/DSB/1/ADD.13)  
6.1.  The Chairman  said that t his item was on the Agenda of the present  meeting at the request of 
Canada . He drew attention to document JOB/DSB/1/Add.13 and invite d the representative of Canada 
to speak.  
6.2.  The representative of Canada  said that his country wished to make a  statement on behalf of 
the following delegations : Australia; Brazil; Canada; Colombia;   Ecuador; the European Union;  
 Guatemala;   Hong Kong, China;   Mexico; New Zealand;   Peru; the Separate Customs Territory of 
Taiwan, Penghu, Kinmen and Matsu; Singapore;   Switzerland; Ukraine; and the United Kingdom. All 
of these Members ha d already indicated their intention to endorse the practice document on practices 
concerning the use of flexible arrangements in dispute settlement proceedings during the COVID -19 
pandemic. This practice document ha d been circulated in document JOB/DSB/1/Add.13. The 
COVID -19 pandemic ha d had terrible consequences around the world on human life and activity. It 
had also significantly affected the functioning of the WTO, including the dispute settlement system.  
Understandably, authorities ha d had to set out restrict ions regarding international travel as well as 
in-person meetings. WTO Members ha d had to adjust to these challenging circumstances to enable 
their work to move forward in all WTO fora, and so ha d the WTO as an Organization. This was also 
true in the conte xt of dispute settlement, where panels and parties ha d had to adapt. Members  had 
seen such adaptation in several disputes, in which panels ha d established procedures to allow flexible 
arrangements, including virtual and hybrid panel meetings. The practice document recognize d the 
Panels' powers and responsibilities in that regard, in line with the principle of prompt settlement of 
disputes.   
6.3.  Canada said that t hrough the practice document presented under this Agenda item , endorsing 
Members w ished  to support the effective functioning of the dispute settlement system during the 
pandemic. The practice document set out how endorsing Members  intend ed to act in dispute WT/DSB/M/447  
- 15 - 
  settlement proceedings in which they we re involved during this challenging period. In the practice 
document, the endorsing Members indicate d their intention to cooperate with the panel and the 
other party or parties to favo ur flexible arran gements, including recourse to virtual or hybrid 
hearings, to ensure that disputes c ould progress in a timely manner during the pandemic. The 
endorsing Members also indicate d their intention to cooperate with the panel and the other party or 
parties, when considering flexible arrangements, to preserve the parties ' due process rights in the 
light of each dispute 's unique context and factors. Through cooperation with the panel and the other 
party or parties, the endorsing Members also intend ed to facilitate a  level of participation in virtual 
or hybrid hearings that was as close as technically feasible to that of in -person hearings. Canada  
invite d all WTO Members that support ed the prompt settlement of disputes during the COVID -19 
pandemic, to consider endorsi ng the practice document. Support for the document would send a 
positive signal in these challenging times.  Canada  intend ed to circulate, by mid -January 2021, a 
revision to document JOB/DSB/1/Add.1/Rev.1, which w ould include a list of the WTO Members that 
endors ed this practice document. Canada  hoped that by th at time  the ranks of endorsing Members 
would have grown.  Canada  looked forward to further engaging with other delegations in that context.  
6.4.  The representative of India said that his country wished to  thank the delegation of Canada for 
its statement on practices concerning the use of flexible arrangements in dispute settlement 
proceedings during the COVID -19 pandemic. The COVID -19 pandemic ha d posed an unprecedented 
crisis to the global commun ity. The pandemic continue d to spread around the world at an alarming 
rate. For India, a party's right to an oral hearing was an intrinsic aspect of its due process rights and 
could not be dispensed with, except with the agreement of the parties to the dis pute. Several 
provisions of the DSU , including the procedure set out in Appendix 3 , expressly provide d for 
substantive meetings, notably Article 15.1 which ma de an express reference to oral arguments. 
India note d that Paragraph 1 of Appendix 3 was couched in mandatory terms regarding the rights 
guaranteed to parties and third parties in a dispute. A panel c ould not exercise its margin of 
discretion to truncate these rights, without the parties' agreement. India also note d that Paragraph  5 
of Appendix 3 prov ided that: "[a]t its first substantive meeting with the parties, the panel shall ask 
the party which has brought the complaint to present its case. Subsequently, and still, at the same 
meeting , the party against which the complaint has been brought shall b e asked to present its point 
of view" (emphasis added). Further, Paragraph 10 of Appendix 3 provide d that: "in the interest of 
transparency , the presentations, rebuttals and statements referred to in paragraphs 5 to 9 shall be 
made in the presence of the parties " (emphasis added). Therefore, the importance that the DSU 
attache d to oral hearings was unquestionable.  For India, the written submiss ions and the substantive 
meetings (i.e. , oral hearings in a physical setting) together constitute d the suite of fair processes 
and due process rights guaranteed by the DSU. While India note d that Article 3.3 of the DSU 
recognize d the importance of "prompt settlement" of disputes, this d id not mean that such prompt 
settlement c ould whittle away "fundamental " due process rights such as a right to an oral hearing. 
This right was particularly important fo r developing c ountries which were used to presenting 
submissions in person  in a physical setting , as it provide d an opportunity for further refining and 
presenting their argument s. 
6.5.  India consider ed that physical oral hearings were indispensable since such hearings were 
conducive to a conte mporaneous oral exchang e and observation of demeanour among other 
elements essential to oral advocacy. This was simply  not possible in technologically enabled virtual 
oral hearings. In the case of virtual oral hearings, there were issues of technological li mitations such 
as internet connection  failure s, camera malfunctions, acoustical problems within the 
videoconferencing rooms and choppy video streams. Such limitations c ould quickly  make the 
hearings frustrating or useless. India also note d that there would be complex coord ination issues 
during virtual oral hearings for Me mbers who wish ed to involve officials from disparate domestic 
departments and regions. Further, there were issues of security and confidentiality for virtual 
hearings. These elements were burdensome for sea soned litigants and were too difficult for 
developing countries.  Consequently, physical oral hearings were vital for meaningful participation  in 
dispute settlement proceedings under the DSU and , ultimately , for the proper functioning of a WTO 
panel. WTO di sputes, being high stakes litigation amongst international actors, demand ed nothing 
less than every procedural right guaranteed by the DSU in the light of due process and based on an 
agreement of the parties.  In view of the above, India c ould not consider that a settlement of the 
matter ha d been reached unless two substantive meetings as guaranteed by the DSU ha d been held 
face to face in a physical setting.  
6.6.  The representative of the United States  thanked Canada for its statement at the present 
meeting, whi ch raised issues of systemic importance. The United States again wished to extend its WT/DSB/M/447  
- 16 - 
  sympathies to all those who had directly borne the impact of the novel coronavirus pandemic. The 
global pandemic had caused significant disruptions to the work of the WTO , including panel 
proceedings. Travel restrictions imposed by WTO Members had made it difficult to schedule a 
substantive meeting of the panel with parties in Geneva. In some instances, this had resulted in a 
postponement of the meeting. Under these extrao rdinary circumstances, the United States 
encouraged each panel to consult with the parties to the dispute on how to proceed, bearing in mind 
the views of the parties and the relevant provisions of the DSU. Where the rights of the parties and 
third parties under the DSU could not be fully protected, a virtual session in lieu of a physical meeting 
in the presence of the parties and third parties could not be considered an adequate substitute. For 
example, the United States noted that several parties and third  parties in ongoing disputes had 
raised pertinent concerns in relation to the conduct of virtual sessions. These included not only DSU 
considerations, but also the effect on a party's right of participation, including situations where health 
or technology considerations precluded or seriously undermined a party's ability to participate 
remotely. The circumstances of each dispute and each party would vary. It would be misguided for 
all panels to adopt a single solution to the challenge posed by the global pa ndemic to the work of 
panel proceedings. Members had to keep in mind and be respectful of the different circumstances 
that each Member faced at home. As WTO panels navigated these extraordinary circumstances, the 
United States encouraged each panel to cons ult with the parties to the dispute and to consider 
carefully the feasibility and implications of a possible course of action before taking a decision . 
6.7.  The representative of Guatemala  said that , at the outset,  his country wished  to thank Canada 
for this initiative and the statement made on behalf of a group of endorsing Members , including 
Guatemala. His country  was endorsing the practices for the use of flexible arrangements in dispute 
settlement proceedings during the COVID -19 pandemic as contained in the document under 
consideration. The reason for this endorsement was simple : in view of the health challenges posed 
by the current COVID -19 pandemic and the related travel restrictions, it remain ed unclear when it 
would be feasible  to resume face -to-face hearings. Therefore, there was no question that it was 
necessary to find alternative arrangements to ensure the continuation of dispute settlement 
proceedings and to seek a prompt resolution of disputes as stated in Article 3.3 of t he DSU, while 
preserving the parties ' due process rights. Guatemala consider ed that the practices contained in the 
document under consideration constitute d an appropriate approach to find ing alternative 
arrangements t hat would help  ensure the continuation of dispute settlement proceedings under the 
current circumstances. Essentially, these practices were consistent with the DSU and simply call ed 
for the cooperation of the disputing parties and panels which , ultimately , should be the  norm in all 
dispute settlement proceedings.  
6.8.  The representative of Tunisia  said that his country wished  to thank Canada for its 
communication contained in document JOB/DSB/1/Add.13. Tunisia support ed Canada' s proposal 
regarding the use of flexible arrangem ents in dispute settlement proce edings  throughout the 
COVID -19 period . Indeed,  all WTO  working groups  had adjusted  to the limitations and demands that 
had arisen during  the COVID -19 pandemic by efficiently using various  remote  connection platforms . 
This had  made  it possible , without major difficulties , to ensure the continu ity of their work and to 
achieve progress in ongoing  negotiation s. Decisions had been taken by a number of panels , with the 
parties ' agreement , to continue progress ing with  dispute settlement proceedings, and notably 
hearings , in a virtual or hybrid format . This demonstrated  the Secretariat 's sound adaptation in 
provid ing operational conditions for the proper hearings through  logistical  and technical support 
measures , in acco rdance with  dispute settlement proceedings . Tunisia r ecogniz ed the effic iency of 
current  information and communication technolog ies, as well  as the level of security and 
confidentiality . Tunisia r ecalled the margin of flexibility g ranted  to panels under  Article 12 of the 
DSU for the purposes of provid ing high-quality reports without delaying the ir work. Accordingly,  
Tunisia would welcome  a consensus amongst Members to adopt the flexible arrangements due t o 
the COVID -19 pandemic.  
6.9.  The representative of Chinese Taipei  said that his delegation  support ed the statement 
concerning the flexible arrangements in dispute settlement proceedings during the COVID -19 
pandemic. For a long time, it ha d been Chinese Taipei's  position  that the function ing of the WTO 
dispute settlement mechanism  should be maintained . Given the limits o n physical meeting s that had 
arisen from the COVID -19 pandemic, Chinese Taipei  also w ished  to encourage panels to adopt 
alternative arrangements in dispute settlement proceedings , including  virtual meeting s, to overcome 
the difficulties associated with  holding in -person meetings due to the COVID -19 pandemic . While 
recognizing the importance of preserving due process, Article 3.3 of the DSU provide d that the 
prompt settlement of dispute s was essential to the effective functioning of the WTO. Chinese Taipei  WT/DSB/M/447  
- 17 - 
  believe d that a balance c ould be struck between prompt settlement of dispute s and due process by 
encouraging parties to cooperate with panel s to utilize the latest information and communication 
technologies to ensure that virtual or hybrid meetings were held in a way that was as close to 
in-person meetings  as possible. These virtual or hybrid meetings could allow for  the delivery of oral 
statem ents, as well as engage ment by parties  in substantive discussions with panel s and third 
parties.  
6.10.   The representative of Japan  said that his country  thank ed Canada for sharing its views and  
its practice document . Japan  very much  appreciate d Canad a's initiat ive. Japan unders tood that the 
practice document call ed for panels to consider adopting flexible arrangements for advancing dispute 
settlement proceedings in light of  the various restrictions due to the CO VID-19 pandemic.  While 
paying close attention to the latest situation of CO VID-19 infection s, Japan w ished  to continue to 
consider how to utilize online means (e.g. , virtual and hybrid hearing s) during  the CO VID-19 
pandemic and would  consider  the practice document.  
6.11.   The representative of Nigeria, speaking on behalf of the African Group , thank ed Canada for 
its statement made under this  Agenda item. The African Group welcome d discussions in this area as 
the COVID -19 crisis ha d requir ed that many governments adapt to new measures that ensure d the 
sustenance of their economies.  Most African Group M embers were still considering this submission 
in their respective  capitals . However, the African Group  had a few preliminary questions for the 
proponent , the answers to  which would  assist with its internal deliberations. First, Nigeria asked 
how, given the prevailing digital divide among Members, Members could  ensure inclusiv eness  for all 
Members under these guidelines . Nigeria  asked this question as Members were aware that the leve l 
of technological capacity differ ed among Members, and capital engagement could  be required during 
panel proce edings  in light of the travel restrictions. Nigeria  was also aware of the technical difficulties 
associated with virtual meetings which, in pract ice, ha d seriously undermined participation of some 
Members. While the prompt settlement of disputes was desirable, it should not undermine the 
requirements of due process under the DSU. S econd, having recall ed that Article 14 of the DSU 
provide d for panel  deliberations to be confidential, Nigeria asked how confidentiality requirements  
could be complied with , if information was transmitted via online technology wh ile proceedings were 
ongoing in a virtual or hybrid format , bearing in mind the unique requirements of each dispute.  
6.12.   The representative of Australia  said that her country  thank ed Canada for its practice document 
initiative and for its joint statement delivered on behalf of endorsing Members.  Members had to  show 
pragmatism and cooperation to ensure the ongoing and effective functioning of the dispute 
settlement system amid the challenges arising from the COVID -19 pandemic.  Australia  encourage d 
all Members to endorse the practice document as a signal of their suppor t for the dispute settlement 
system.  
6.13.   The representative of China  said that his country  thank ed Canada for its statement made 
under this Agenda item on behalf of many WTO Members . China was well aware  of the continuing 
difficulties posed by the ongoing COVID -19 pandemic, both in terms of public health concerns and 
its impact on working conditions, and consequently over legal proceedings . Nevertheless, the prompt 
resolution of disputes remain ed the core  of the WTO dispute settlement system , as evidenced by 
Article s 3.3 and 12.2  of the DSU . In light of this, China consider ed it fundamental to provide certainty 
to dispute settlement proceedings so as to avoid any undue delay in the process.  While addressin g 
legitimate public health interests, it was equally necessary to preserve the protection awarded by 
the WTO legal framework against unjustified trade restrictions, and to keep the global trade system 
functioning during the economic downturn . China note d that some panels ha d demonstra ted 
flexibility to avoid excessive delays in proceedings . China  support ed and encourage d more 
adjudicators and the Secretariat to continue their work under the present extraordinary 
circumstances.  
6.14.   The representative of Korea  said that his country share d Canada 's views on the need for 
flexibility in dispute settlement proceedings during the COVID -19 pandemic.  As Members ha d 
continuously emphasized, revitalizing international trade c ould greatly contribute to economic 
recovery e fforts . However, in order to maximize this contribution, Members  needed the security and 
predictability provided by WTO rules and its dispute settlement mechanism.  Korea appreciate d the 
efforts led by Canada to maintain the effectiveness of the panel proce ss and thereby preserve the 
relevance of the WTO dispute settlement function in th ese unprecedented circumstances.  The 
practice document was well-timed  and the flexibilities proposed provide d timely and effective 
solutions to current challenges, while seek ing to preserve parties ' due process rights.  Korea agree d WT/DSB/M/447  
- 18 - 
  on the overarching need for parties to cooperate in addressing the particular challenges that current 
circumstances pose d for dispute settlement proceedings . In this regard, Korea recall ed that 
Article 3.10 of the DSU call ed on Members to "engage in these procedures in good faith in an effort 
to resolve the dispute ". Korea look ed forward to discussing the practice document  in more detail 
with Canada and with other Members.  
6.15.   The representative of Turkey  said that his country wished to  thank Canada for having shared 
the practice document and for its statement  made under this Agenda item . Turkey agree d that there 
was a nee d for dispute settlement proceedings to progress as swiftly as possible and for minimiz ing 
disruptions due to the COVID -19 pandemic.  Turkey believed that  panels already acted pursuant to 
such guidance , as provided by  the DSU . The DSU referred to  the prompt settlement of disputes in 
Article s 3.3 and 12.1 . These Articles  of the DSU provide d that in order to ensure progress in their  
proceedings, panels c ould adopt alternative working procedures that differe d from Appendix 3  of the 
DSU, after having consult ed with the parties.  In this respect,  although  Turkey consider ed an 
in-person hearing to be by far the most preferable option, and given the uncertainties posed by the 
current pandemic, Turkey  believe d that panels c ould exercise th eir discretion under  the DSU, on a 
case-by-case basis, while consulting with the parties and considering capacity constraints of 
Members.  However, Turkey  also underline d that no matter how hard Members  tried to accelerate 
progress in dispute settlement  procee dings, Members were  still face d with the reality of a paralyzed 
Appellate Body which was a dead -end for all avenue s that Members would  choose to follow.  
6.16.   The representative of the United Kingdom  said that his country wa s pleased to support this 
practice doc ument . The United Kingdom  thank ed Canada for its efforts on this issue. WTO dispute 
settlement, and the broader multilateral trading system, ha d come under significant strain in 2020  
due to the impacts of the C OVID -19 pandemic. The United Kingdom was mindful that for various 
Members there ha d been considerations of decreased capacity and technological constraints. The 
United Kingdom  would continue to support Members facing such constraints, as it had done 
throughout  2020. There was a balance to be struck between acknowledging the wider strain that 
the system, and individual Members were under, and ensuring that this strain d id not unnecessarily 
prevent prompt dispute settlement, which was in the interest of all Membe rs. In particular, the 
United Kingdom  noted that the practice document place d importance on cooperation with the panel 
and the other party or parties, when considering flexible arrangements, to ensure that each dispute's 
unique context and factors were tak en into consideration in order to preserve the parties' due 
process rights. The United Kingdom  welcome d this initiative to support the pursuit of prompt dispute 
settlement while ensuring that parties and third parties' ability to fully participate was cons idered in 
the circumstances of each dispute.  
6.17.   The representative of Colombia  said that , as mentioned  by Canada  under  this Agenda item, 
Colombia endorse d the practice document. In the context of the COVID -19 pandemic, Colombia 
believed  that Members should try to find solutions to the current difficulties in carrying out activities 
of dispute settlement  system , which was a fundamental pillar of the WTO. Recogni zing the difficulties 
that some Members, including Colombia, could  have in engaging in virtual meetings, Colombia 
believe d that this initiative  was an appropriate and good faith attempt to do so. Colombia  encourage d 
other Members to endorse this solution -seeking practice document.  
6.18.   The representative of South Africa  said that her country wished to thank Canada for its 
practice  document . South Africa  aligned itself with the statement made by Nigeria on behalf of the 
African Group. COVID -19 ha d unleashed a devastating health, economic and social crisis 
unprecedented in recent times. Since the outbreak, the loss of life had been  the immediate 
consequence that governme nts ha d had to grapple with , eventually leading to confinement schemes 
and lockdowns to reduce the spread of the virus. COVID -19 ha d forced, or likely would still force, 
governments to take drastic measures in the public interest that were unimaginable in normal times , 
leading to possible disputes o ver whether there was a violation of the covered agreements. 
South  Africa believed that Members  needed a more substantive discussion within the DSB . These 
discussions  should not only deal with procedural issues r elated to dispute settlement. As Nigeria had 
stated, Members had to  take into account the importance of due process , as well as constraints that 
were faced by many Members in relation to the digital divide. South Africa  was currently studying 
the document and w ould come back  with further comments.  
6.19.   The DSB took note of the statements.  WT/DSB/M/447  
- 19 - 
  7  PROPOSED NOMINATION FOR THE INDICATIVE LIST OF GOVERNMENTAL AND 
NON-GOVERNMENTAL PANELISTS (WT/DSB/W/ 673) 
7.1.  The Chairman  drew attention to document WT/DSB/W/67 3 which contained a new nomination 
proposed by Kenya for inclusion on the Indicative List of Governmental and Non -Governmental 
Panelists, in accordance with Article  8.4 of the DSU. He proposed that the DSB approve the name 
contained in document WT/DSB/W/67 3. 
7.2.  The DSB so agree d. 
8  APPELLATE BODY APPOINTMENTS : PROPOSAL BY AFGHANISTAN ; A NGOLA ; 
ARGENTINA ; AUSTRALIA ; BANGLADESH ; BENIN ; PLURINATIONAL STATE OF BOLIVIA ; 
BOTSWANA ; BRAZIL ; BURKINA FASO ; BURUNDI ; CABO VERDE ; CAMEROON ; CANADA ; 
CENTRAL AFRICAN REPUBLIC ; CHAD; CHILE ; CHINA ; COLOMBIA ; CONGO ; COSTA RICA ; 
CÔTE D'IVOIRE ; CUBA; DEMOCRATIC REPUBLIC OF CONGO ; DJIBOUTI ; DOMINICAN 
REPUBLIC ; ECUADOR ; EGYPT ; EL SALVADOR ; ESWATINI ; THE EUROPEAN UNION ; GABON ; 
THE GAMBIA ; GHANA ; GUATEMALA ; GUINEA ; GUINEA BISSAU ; HONDURAS ; HONG KONG, 
CHINA ; ICELAND ; INDIA ; INDONESIA ; ISRAEL ; KAZAKHSTAN ; KENYA ; REPUBLIC OF 
KOREA ; LESOTHO ; LIECHTENSTEIN ; MADAGASCAR ; MALAWI ; MALAYSIA ; MALDIVES ; 
MALI; MAURITANIA ; MAURITIUS ; MEXICO ; REPUBLIC OF MOLDOVA ; MOROCCO ; 
MOZAMBIQUE ; NAMIBIA ; NEPAL ; NEW ZEALAND ; NICARAGUA ; NIGER ; NIGERIA ; NORTH 
MACEDONIA ; NORWAY ; PAKISTAN ; PANAMA ; PARAGUAY ; PERU; QATAR ; RUSSIAN 
FEDERATION ; RWANDA ; SENEGAL ; SEYCHELLE S; SIERRA LEONE ; SINGAPORE ; SOUTH 
AFRICA ; SWITZERLAND ; THE SEPARATE CUSTOMS TERRITORY OF TAIWAN, PENGHU, 
KINMEN AND MATSU ; TANZANIA ; THAILAND ; TOGO; TUNISIA ; TURKEY ; UGANDA ; 
UKRAINE ; UNITED KINGDOM ; URUGUAY ; THE BOLIVARIAN REPUBLIC OF VENEZUELA ; 
VIET NAM ; ZAMBIA AND ZIMBABWE (WT/DSB/W/609/REV.1 9) 
8.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
Mexico, on behalf of a number of delegations. He then drew attention to the proposal contained in 
document WT/DSB/W/6 09/Rev.1 9 and invited the representative of Mexico to speak . 
8.2.  The representative of Mexico , speaking on behalf of the co -sponsors of the joint proposal 
contained  in document  WT/DSB/W/609/Rev.19, said that the delegations in question had agreed to 
submit the  joint proposal dated  7 December 2020 to launch the AB selection processes . His 
delegation, on behalf of 121 Members, wished to make the following statement . The extensive 
number of Members submitting this joint proposal reflected a common concern with the current 
situation of the Appellate Body , which  was seriously affecting the overall dispute settlement system 
against the best interest of WTO Members . Members had a responsibility to safeguard and preserve 
the Appellate Body, the dispute settlement sys tem and the multilateral trading system. Thus, it was 
the Members' duty to launch the AB selection processes without further delay as set out in the joint 
proposal, which sought the following : (i) to start seven selection processes: one process to replace 
Mr Ricardo Ramírez -Hernández, whose second term had expired on 30 June 2017; a second process 
to fill the vacancy that had resulted from  the resignation of Mr Hyun Chong Kim with effect from 
1 August 2017; a third process to replace Mr Peter Van den Bossch e, whose second term had expired 
on 11 December 2017; a fourth process to replace Mr Shree Baboo Chekitan Servansing, whose 
four-year term of office had expired on 30 September 2018; a fifth process to replace Mr Ujal Singh 
Bhatia, whose second term had ex pired on 10 December 2019; a sixth process to replace Mr Thomas 
R. Graham whose second term had expired on 10 December 2019 ; and a seventh process to replace 
Ms. Hong Zhao, whose first four -year term of office had expired on 30 November 2020 ; 
(ii) to estab lish a Selection Committee; (iii) to set a deadline of 30 days for nominating candidates ; 
and (iv) to request that the Selection Committee issue its recommendation s within 60 days after the 
deadline for nominations of candidates. He said that t he proponent s were flexible in the 
determination of the deadlines for the AB selection processes . However, they believed that Members 
should consider the urgency of the situation . They continued to urge all Members to support this 
proposal in the interest of the multilateral trading system and the dispute settlement system . 
8.3.  The representative of the European Union  said that his delegation wished to refer to the EU 
statements made on this issu e at previous DSB meetings, starting in February 2017, as well as to 
its statements made at the General Council meetings, including at the 9 December 2019 G eneral 
Council  meeting . Since 11 December 2019, the WTO no longer guaranteed access to a binding, 
two-tier, independent and impartial resolution of trade disputes. This was in clear breach of the WTO WT/DSB/M/447  
- 20 - 
  Agreements . As the EU had stated repeatedly, Members had a shared responsibility to resolve this 
issue as soon as possible, and to fill the outstanding vacancies as required by Article 17.2 of the 
DSU. The EU thanked all Members that had co -sponsored the proposal to launch the AB selection 
processes. The EU invited all other Members to endorse this proposal . 
8.4.  The representative of the United States  said that as the United States had explained in prior 
meetings, the United States wa s not in a position to support the proposed decision. The systemic 
concerns that the United States had identified for more than 16 years and across multiple 
US Administrations remained unaddressed. Over the past three years, the United States had 
engaged i n many discussions with Members – on a bilateral basis, in small groups, and in large 
settings. After three years of effort, the United States asked what had been learned. First, the United 
States had learned that the Appellate Body thought it had done no wrong . The United States knew 
this because, despite US action on appointments under both the Obama Administration and the 
Trump Administration, the Appellate Body had not changed its approach. In fact, it had expanded 
and deepened its WTO -inconsistent prac tices and interpretations. This reflected an institution that 
had come to view itself as more important than the rules – and the Members – that had created it. 
The United States had learned that the Appellate Body turned out to be less expert than panelist s 
in adjudicating disputes under the DSU. The United States knew this because the United States had 
catalogued numerous substantive interpretive errors by the Appellate Body.5 In most cases, a panel 
had reached a correct interpretation, and the Appellate Body had gotten it wrong. And so, while 
some Members might think the Appellate Body had done a better job than panels – the United States 
believed that the record showed the opposite: panels had generally respected WTO rules, and the 
Appellate Body far too  often had not. The United States had learned that some Members thought 
the Appellate Body had done no wrong . This was regrettable because the United States had not 
heard any convincing defence of the Appellate Body's errors in interpreting the DSU or substantive 
WTO rules. The ongoing denial by some Members of any AB errors reflected, in part, a fundamental 
divide among Members on the proper role of the Appellate Body in the WTO and the global trading 
system more generally. The United States had learned that some other Members might  think the 
Appellate Body had done wrong, but were content to maintain the status  quo. The United States did 
not understand how a Membership that proclaimed its support for a rules -based trading system 
could nonetheless accept persistent rule -breaking by its dispute settlement system. This 
unwillingness on the part of some Members migh t unfortunately reflect a Membership incapable of 
holding WTO institutions, including the Appellate Body, accountable. Experience showed, however, 
that without accountability, there could be no reform. And the United States had learned that some 
reform -minded Members thought the Appellate Body had committed serious errors, and bravely saw 
a need for real, fundamental reform  – reform so that the WTO dispute settlement system supported 
the WTO as a venue for discussion and negotiation between Members, rather than undermining the 
WTO and converting it into a mere litigation forum . 
8.5.  The United States believed it was fair to say that the United States had learned a considerable 
amount. Members had deepened their understanding of the issues and, in some cases, had sincerely 
wrestled with the challenge before them. But of course, many questions remained. There was the 
question that every Member knew well – the "why" question. Some Members might be tired of 
hearing it, and the United States could similarly tire of hav ing to ask it – but the question was too 
important to the future of the WTO to ignore it. Despite best efforts by the United States to push 
the conversation forward, the United States had heard very little from other Members on their views 
as to how Member s had arrived at this situation – where the Appellate Body had ignored the clear 
 
5 See US Trade Representative Report on the Appellate Body of the World Trade Organization, 
February  2020, pp. 81 -119, available at : 
https://ustr.gov/sites/default/files/Report_on_the_Appellate_Body_of_the_World_Trade_Organization.pdf ; 
see also, e.g., Dispu te Settlement Body, Minutes of the Meetings WT/DSB/M/294, paras. 103 -127 (statement 
of the United States concerning the Appellate Body report in US – Anti-Dumping and Countervailing Duties 
(China) (AB)); WT/DSB/M/346, para. 7.7 (statement of the United Sta tes concerning the Appellate Body report 
in EC – Seal Products (AB)); WT/DSB/M/211, paras. 37 -40 (expressing concerns with the Appellate Body 's 
interpretation of Article 2.4.2 of the Anti -Dumping Agreement); WT/DSB/M/225, paras. 73 -76 (expressing 
concerns with the Appellate Body 's interpretation of the Anti -Dumping Agreement with regard to zeroing); 
WT/DSB/M/250, paras. 47 -55 (expressing concerns that the Appellate Body wrongly claim ed that its reports 
were entitled to be treated as precedent and had to  be followed by panels absent "cogent reasons "); 
WT/DSB/265, paras. 75 -81 (expressing concern that the Appellate Body 's findings had incorrectly expanded 
the scope of the proceedings, concern with the Appellate Body 's interpretation of the Anti -Dumping Agreeme nt 
with regard to zeroing, and concern that the Appellate Body had failed to apply the special standard of review 
under the Anti -Dumping Agreement); WT/DSB/M/385, paras. 8.8 -8.19; WT/DSB/M/73 (expressing concerns 
with the Appellate Body 's interpretation of  the Safeguards Agreement).  WT/DSB/M/447  
- 21 - 
  limits placed on it under the DSU and had rewritten the substantive rules set out in the WTO 
agreements. In meeting after meeting, the United States had posed this question to  the Members. 
The United States had explained why the "why question" was so important. But most Members had 
not wanted to undertake this critical, reflective exercise. In the absence of engagement from 
Members, the United States had offered several potenti al explanations based on conversations and 
on its own reflections. For example, the United States had noted: one cause could be the ongoing 
challenges facing the WTO negotiating function and its oversight function, leading to unchecked 
"institutional creep " by the Appellate Body. Another cause could be that some WTO Members 
believed that the Appellate Body was an independent "international court" and its members were 
like "judges" who had more authority to make rules than the focused review provided in the DSU. 
Relatedly, some Appellate Body members had viewed themselves as "appellate judges"6 serving on 
a "World Trade Court" that was the "centerpiece" of the WTO dispute settlement system.7 Of course, 
such an expansive vision of the Appellate Body was not reflected in the DSU. Finally, the United 
States had also noted that the compensation arrangements for AB members had rewarded their 
delays and staying on beyond the end of their terms, and the United States had learned that there 
had been very little tran sparency and accountability for the compensation claimed . 
8.6.  Besides these, Members had also heard from a former member of the Appellate Body, 
Mr Graham, who had been willing to speak out candidly on these issues.8 He had put forward a 
number of reasons "why " the Appellate Body had erred and had been unwilling to correct those 
errors – and these remarks deserved attention from all WTO Members. Among his observations on 
why the Appellate Body had behaved as it had: (1) a "prevailing ethos" to act like a court,  and not 
be accountable to WTO Members; (2) the degree of control by Appellate Body staff; (3) an 
over-emphasis on "collegiality" that created "peer pressure to conform"; (4) an "excessive striving 
for consensus" that "led to excessively long and unclear c ompromise reports" and "encouraged 
over-reach, gap filling, and advisory opinions"; (5) "a sense of infallibility and of entitlement, to 
stretch the words of agreed texts, and to stretch decisions beyond merely resolving a particular 
dispute, so as to crea te a body of jurisprudence"; and, finally, an "undue adherence to precedent", 
"not only as to outcomes, but also as to reasoning, definitions, and obiter dicta", which had "made 
it more important to know the past" than to "openly consider[] whether the pas t should be 
reconsidered".  
8.7.  None of these potential reasons "why" were addressed in the decision before the DSB at the 
present meeting. Starting a selection process would therefore simply revive the interpretations and 
practices that the United States had, for years, explained as contrary to the WTO agreement and 
unacceptable to the United States. Nor did these potential reasons "why" suggest a problem that 
could be resolved by simply agreeing on words that repeated, with feeling, existing WTO principles. 
Many Members had been unwilling to confront this difficult reality. Looking ahead, Members had to 
find ways to ensure that the limitations Members imposed on all WTO adjudicators in the DSU were 
respected. Members had to consider and grapple with the damage to the WTO, as a forum for 
discussion and negotiation, and as a rules -based system, for continued failure to adhere to those 
limitations. While there were many problems in international trade that required discussion of new 
norms and rules, the United Stat es considered that the rules that Members had been able to agree 
in 1995 represented some important progress in bringing greater fairness and market -orientation to 
international trade. As the United States saw it, the Appellate Body had effectively written  a new, 
less-market -oriented, less reciprocal, and less mutually beneficial WTO agreement, which the United 
States had never agreed to, and which the representative of the United States believed no 
US Government would agree to. The United States would cont inue – as it always had – to engage 
with Members on these important issues . 
8.8.  The representative of Brazil  said that his country wished to thank Mexico for presenting the 
proposal , contained  in document  WT/DSB/W/609/Rev.1 9, on behalf of the co-sponsors . Brazil st ood 
ready, as it  always  had, to engage with all Members in order to find a lasting solution to this impasse.  
 
6 Farewell Speech of Appellate Body member Peter Van den Bossche, available at 
https://www.wto.org/english/tratop_e/dispu_e/farwellspeech_peter_van_den_bossche_e.htm.  
7 Peter Van den Bossche, From Afterthought to Centerpiece: Th e WTO Appellate Body and its Rise to 
Prominence in the World Trading System (2005).  
8 Farewell speech of Appellate Body member Thomas R. Graham, available at 
https://www.wto.org/english/tratop_e/dispu_e/farwellspeechtgaham_e.htm.  WT/DSB/M/447  
- 22 - 
  8.9.  The representative of Thailand  said that her country support ed the statement made by Mexico 
on behalf of the co -sponsors. Whi le the time had come when there was no Appellate Body member 
left, Thailand  continue d to witness  Members filing appeals before the Appellate Body.  This reflect ed 
the value and importance that Members place d on the two -tier dispute settlement system.  Thus, 
Thailand  strongly urge d Members to further review possible means and to redouble their efforts to 
reach a solution and to bring back the Appellate Body as soon as possible.  Thailand st ood ready to 
engage in  constructive dialogue with Members in these efforts.  
8.10.   The representative of Switzerland  said that her country wished  to refer to its statements made 
at previous DSB  meetings  on this matter . Members  should continue to try  to resolve the current 
impasse. Switzerland  called on all Members to engage  constructive ly to find concrete solutions. 
Switzerland continue d to commit itself to working with all Members to  achieve this objective. It was 
Switzerland 's priority to ensure tha t the appellate stage  could  function fully again in the interest of 
all Members .  
8.11.   The representative of Iceland  said that a s one of the co -sponsors o f the proposal  contained  in 
document  WT/DSB/W/609/Rev.1 9, his country  was deeply concerned about  the lack of progress in 
filling the current  vacancies  in the Appellate Body . Iceland  believed that  the two -stage  WTO dispute 
settlement system play ed a central role in providing predictability within the international trading 
system  and securing a fair playing field for all participating Members, regardless of their political 
influence or economic might. Therefore , Iceland  called on all Members and stood ready to engage 
constructively and solve this impasse without further delay.  
8.12.   The representative of  the United Kingdom  said that his country continued to support the 
proposal for the launch of the AB selection processes. The United Kingdom wished to refer to its  
statements made at previous DSB meetings under this Agenda item . The United Kingdom also 
supported the statement made by Mexico on behalf of all co -sponsors . The month of December 2020  
marked a year since the Appellate Body ha d been able to hear new appea ls, and a year since 
Members ha d had recourse to a two -stage dispute settlement system with the support of all 
Members. At a time when the wider trading system was under strain, ensuring the fulfilment of 
rights and obligations of all Members under the DSU was essential.  The United Kingdom had listened 
carefully to the concerns raised and recognized the need for reform . The United Kingdom  encourage d 
all Members to reaffirm the value of, and Members' investment in, the rules -based multilateral 
trading system . The United Kingdom  looked forward to working with all Members to ensure that they 
did not become accustomed to the current impasse on dispute settlement. Finding a solution and 
engaging in reform discussions should not stand in the way of Members accessi ng two -stage dispute 
settlement, a central pillar of the multilateral trading system. Therefore , the United Kingdom  called 
on all Members to launch the AB selection process es for all seven vacancies so that Members  could 
restore the system to full functioning while they prioriti zed discussions on a permanent solution.  
8.13.   The representative of Nigeria , speaking on behalf of the African Group , said that the Group 
wished to refer to their statements made at previous DSB meeting s on this very important issue . 
The Group also wished to thank Mexico for its statement made at the present meeting on behalf of 
the co -sponsors of the AB proposal . As one of the co -sponsors of the proposal,  the Group wished to 
express regret that up to the present meeting  the DSB ha d failed in the performance of its function 
under Article 17.2 of the DSU which clearly state d that: "[v]acancies shall be filled as they arise ". 
The large  number of Members that had submitt ed the joint proposal contained  in document  
WT/DSB/W/609/Rev.1 9 reflect ed a common concern with the current situation of the Appellate 
Body's impasse that was seriously affecting the function ing of the Appellate Body  and the whole 
dispute settlement system against the best inte rests of WTO Members . Therefore, the Group urge d 
the DSB to urgently fulfil its obligation under the DSU, which was to fill vacancies as they ar ose, so 
as to ensure that the Appellate Body d id not collapse permanently . The African Group believed  that 
proce dural matters could  be addressed alongside substantive issues. The African Group  wished  to 
remind other  Member s that there had been  a dedicated process that had addressed many of the 
substantive concerns raised by some Members , i.e., the informal process of focused discussions on 
Appellate Body matters with Amb. Walker as Facilitator ( "the Walker process "), in which  the African 
Group had  presented a proposal on A B reform . The African Group  encourage d the resumption of 
that process . The African Group  was ready to engage constructively with other Members based on 
its proposal.  WT/DSB/M/447  
- 23 - 
  8.14.   The representative of Peru said that his country  wished  to thank Mexico for its efforts  in 
respect of  this Agenda item. Peru wished  to reiterate its support  for Mexico . As this was the first 
DSB meeting since the Appellate Body did not have  a single member , Peru wished  to reiterate the 
urgency and importance of filling the AB vacan cies. Peru wished  to reiterate  its readiness  to address 
the concerns of some Members regarding the functioning of the Appellate Body. Peru invite d all 
Members to resume a constructive dialogue  on this matter as soon as possible, so that Members  
could  collectively find concrete avenues for exiting the impasse in which they found themselves . 
8.15.   The representative of Japan  said that his country  wished to thank Mexico for the proposal 
contained  in document  WT/DSB/W/609/Rev.1 9, which Japan support ed. It was regrettable that the 
last AB member , Ms Zhao, had  left office on 30 November  2020, and that the Appellate Body no 
longer exist ed other than in the text of the DSU.  Japan completely share d the sense of urgency  of 
other WTO Members  regarding  an expeditious reform of the WTO dispute settlement system . As 
mentioned at previous  DSB meetings, Japan 's top priority was to reform the WTO di spute settlement 
system in a manner that would serve to achieve a long -lasting solution t o Appellate Body matters . 
To that end, Japan consider ed it essential that Members, while bearing in mind the present situation 
in which the Appellate Body had essentia lly disappeared, participate d actively in the discussions on 
reform of the dispute settlement system . Such reform c ould be achieved only through active 
discussion among  Members , as they  were the owners of the system.  For that purpose, Japan would 
spare no effort in collaborat ing with other Members . 
8.16.   The representative of South Africa  said that her country support ed the statement made by 
Mexico as well as th at of Nigeria. South Africa  wished to recall its statements made at previous DSB 
meetings on this matter.  South Africa also wished to emphasize a few issues. As Japan had stated , 
the remaining Appellate Body member 's term had expired on 30 November 2020 . Members we re 
witnessing a rise in the number of disputes that were appealed into the void. The dysfunctionality of 
the Appellate Body was a systemic issue that undermine d the enforcement function of the WTO. 
South Africa  emphasize d the need to resolve the current impasse urgently and find a permanent 
solution to the ap pointment of AB members. A functional dispute settlement system was the 
cornerstone of the multilateral trading system and was essential to the functioning of the WTO. The 
restoration of an independent, impartial, two -stage dispute settlement system w ould ensure 
efficiency in the resolution of disputes in the WTO. South Africa  reiterate d that the biggest risk of a 
dysfunctional  Appellate Body was borne by smaller WTO Members  who were more likely to be 
subjected to unilateralism and power dynamics . Without t he Appellate Body, the WTO dispute 
settlement system was losing much of its predictability . This, in turn , had serious  implications for 
the rights and obligations of Members . There were also serious consequences for  future rule-making 
efforts in the WTO , as the value of negotiated outcomes depend ed on the abili ty of signatories to 
enforce them. South Africa  was ready to engage in a constructive discussion towards a multilateral 
solution that addresse d the concerns of all , including the Africa n Group's con cerns about the 
accessibility of the system. Therefore , South Africa  called on all Members to ensure that they 
discharge d their collective duty to select and appoint AB members as soon as possible. The launching 
of the AB selection processes had to  be high  on the WTO's agenda.  
8.17.   The representative of Korea  said that his country  noted that many Members ha d continuously 
voiced their concerns over the Appellate Body 's impasse and the urgency to revive the two -tier 
dispute settlement system . His country  support ed the statement made by Mexico on behalf of the 
co-sponsors of the joint proposal  contained  in document  WT/DSB/W/609/Rev.1 9. Korea urge d all 
Members to engage constructively in the discussions  aimed at resolv ing this important issue as soon 
as pos sible. 
8.18.   The representative of India said that his country wished to refer to its statements made at 
previous DSB meetings on this matter . India  reiterate d its serious concerns regarding the DSB's 
inability to commence the AB selection process es. Since 11 December 2019, the Appellate Body was 
no longer available for the review of panel reports. The defunct Appellate Body ha d created many 
problems for Members. The binding , two-stage , impartial dispute settlement system , which was the 
central eleme nt in providing security and predictability to the multilateral trading system , was a core 
priority for India. India st ood ready to engage in constructive dialogue with Members to reach a 
shared understanding of the concerns raised and t o agree on pragmati c solutions in the interest of 
all Members.  WT/DSB/M/447  
- 24 - 
  8.19.   The representative of Singapore  said that his country thank ed Mexico for its statement . He 
said that Singapore supported Mexico's statement  and wished to refer to its statements made at 
previous DSB meetings on this matter . Singapore  reiterated its strong systemic interest in the 
maintenance of the two -tier binding WTO dispute settlement mechanism that was underpinned by 
negative consensus . With the expiry of the final Appellate Body member 's term at the end of 
November 2020 , Members  had the task of filling all seven AB vacancies. The unblocking of the AB 
selection process es had to  remain the paramount priority for all Members, especially with the 
continued filing of more appeals. Singapore urged all M embers, including the United States, to 
constructively engage in finding a lasting multilateral solution  to this matter .  
8.20.   The representative of Indonesia  said that his country wishe d to refer to its statements made 
at previous DSB meetings under this A genda  item. It was unfortunate that the present  meeting ha d 
marked one year for the WTO without a fully functioning  Appellate Body . Nevertheless, despite the 
adverse impact arising from its absence, Members  had yet to agree on a solution to resolve this 
crisis. This situation ha d severely impact ed all Member s. The absence of a two –tier dispute 
settlement system ha d jeopardized the essential element that the WTO could offer to global trade : 
i.e., certainty . Resolving this issue should be the utmost priority for all Members . Indonesia  
reiterated its  long-standing commitment to constructively engage with other Members and 
contribute to effort s aimed at  resolving this issue . Indonesia , once again , urged all Members to pay 
serious attention  to, and display  willingness and commitment for , the immediate appointment of the 
Appellate Body members.  
8.21.   The representative of Turkey  said that his country wished to refer to its statements made at 
previous DSB meetings  under this Agenda item . As a co -sponsor of this proposal, Turkey  stressed  
the urgent need to start the AB selection processes . The Appellate Body was one of the institutional 
centrepieces of this Organization , to which  all Members had adhered at its incep tion. The Appellate 
Body was essential to the  multilateral trading system . Its demise w ould undermine the rule of law 
character of this Organization and risk ed the collapse  of the entire system.  Like other  Member s, 
Turkey recognize d the importance of maintaining a two-tier dispute settlement system , which  
offered  binding adjudication and provide d security and predictability to the multilateral trading 
system.  Turkey consider ed it important and necessary to resume multilateral discuss ions on ways 
to improve the system and to address the concerns of Members.  Turkey st ood ready to engage 
constructively to help overcome this impasse and invite d all Members  to engage in discussions.  
8.22.   The representative of Canada  said that his country suppor ted the statement made by Mexico 
and shared the concerns expressed by other Members at the present meeting. Canada invited WTO 
Members that had not yet co -sponsored the proposal contained  in document  WT/DSB/W/609/Rev.1 9 
to consider joining the 121 Members calling for the launch of the AB selection processes . The critical 
mass of WTO Members behind this proposal was a clear testimony to the importance that they all 
accorded to a fully  functioning Appellate Body as an integral part of the dispute sett lement system . 
The fact that the Appellate Body could not hear new appeals was of great concern. Canada reiterated 
that it was fully committed to discussions on matters related to the functioning of the Appellate 
Body. Canada's priority remained to find a long-lasting multilateral resolution to the impasse that 
covered all Members, including the United States. In the meantime, Canada and 23 other WTO 
Members had endorsed the Multi -Party Interim Appeal -Arbitration Arrangement (MPIA) as a 
contingency measure to safeguard their rights to binding two -stage dispute settlement in disputes 
amongst themselves . The MPIA was open to all WTO Members. Canada invited all WTO Members to 
consider joining the MPIA to safeguard their dispute settlement rights to the greatest  extent possible 
until Members collectively found a permanent solution to the AB impasse. Canada remained available 
to discuss the MPIA with any interested Member .  
8.23.   The representative of China  said that his country support ed the statement made by Mexico 
on behalf of 121 Members co -sponsoring this important proposal. China  wished to  refer to its 
statements made at previous DSB meetings on this matter and to reiterate its firm support for a 
two-tier, binding, independent and impartial dispute settlement system . After the departure of its 
last sitting member, the Appellate Body had become a standing body on paper . Restoring the 
function of this entity bec ame even more urgent.  The Appellate Body was the hallmark of 
multilateralism and international rule of law . WTO Members b ore the  collective and unconditional 
obligation under the DSU to fill the AB vacancies . Nothing could serve as a pretext to ignore this 
negotiated treaty obligation . As Members had observed in 2020 , the paralysis of the Appellate Body 
had seriously undermined the security of the rules -based multilateral trading system, especially 
under this once -in-a-century pandemic when the world need ed such security the most.  More WT/DSB/M/447  
- 25 - 
  "appea ls into the void " mean t that violations of current rules could easily escape sanctions . Measures 
that were WTO -inconsistent were still being applied . If old rules c ould not be enforced, there wo uldn't 
be any appetite for the negotiation  of new rule s. In this regard, absent a strong dispute settlement 
system, the negotiating and monitoring pillars w ould incur  collateral damage and c ould not be 
genuinely reinforced.  Moreover, the fact that disputes continue d to be brought before  the WTO 
dispute settlement  system and that various means ha d been adopted to cope with the Appellate 
Body's paralysis d id not mean that Members c ould live with a damaged WTO dispute settlement 
system . Various alternative arrangements , such as non -appeal agreement , amounted to  damage 
control  under the circumstance s. None of them, including the MPIA, could fully replace a functional 
Appellate Body in terms of providing the same degree of security and predictability to the multilateral 
trading system.  In light of this, maintainin g a two -tier dispute settlement system should remain the 
priority for the entire Membership . Therefore , China  called on every Member , including the United 
States , to participate constructively in solution s-based discuss ions with a view to restoring the 
Appellate Body at the earliest date . China st ood ready to further engage with other Members on this 
urgent matter.  
8.24.   The representative of  the European Union  noted  that the  United States had stated that the 
past had to  be reconsidered. The EU w ished to reiterate that Members  should  have a forward -looking 
discussion and should not continuously re -litigate their differences as to the reading of the current 
rules. The draft G eneral Council  decision presented by Amb. Walker could have been the right bas is 
for unblocking the appointments. However, it had not been accepted by the United States who had 
not made any proposal or counter -proposals . The EU stood ready to continue a forward -looking 
discussion . 
8.25.   The representative of Mexico , speaking  on behalf of the 121 co -sponsors of the joint proposal  
contained  in document WT/DSB/W/609/Rev.1 9, expressed regret that for the thirty -eighth occasion, 
Members had still not been able to launch the AB selection processes and had thus continuously 
failed to fulfil 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 should not serve as a pretext 
to impair  and disrupt its work as well as the work of the dispute settlement  system  in general . There 
was no legal justification for the current blockage of the AB selection processes, which resulted in  
nullification and impairment of Members ' rights.  Article 17.2 of the DSU clearly stated  that: 
"[v]acancies shall be filled as the y arise" . Nothing 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 . Mexico noted with deep concern that due to the continued failure to act at the pres ent 
meeting, the Appellate Body would continue to be unable to perform its functions, against the best 
interest of all Members .  
8.26.   The representative of Mexico  said that  his country wished to refer to its statements made at 
previous DSB meetings under this Agenda item . For more than two years, Mexico  had continuously 
been deeply concerned by this unprecedented situation with a non-operative and non-existing 
Appellate Body.  The proposal supported by 121 Members sought  the launch of seven AB selection 
processes to fill the seven seats on the Appellate Body. This situation was unsustainable.  As noted 
at recent DSB meetings, all ongoing disputes were being affected by the lack of a fully functioning 
dispute settlement system . This  undermine d the right of all Members to re sort to an appe llate stage  
and jeopardize d speedy compliance with and adoption of panel reports.  There exist ed a share d 
concern and willingness among the Membershi p to comply with the obligation to fill vacancies as 
they ar ose in accordance with  Article 17.2 of the DSU.  Mexico  urged those Members that had not 
already done so to support the proposal  contained in document WT/DSB/W/609/Rev.19 , and to 
engage  constructively and make concrete proposals aimed at resolving this matter . 
8.27.   The Chairman  thanked delegations for their statements. He said that as in the past, the DSB 
would take note of the statemen ts expressing their respective positions, which would be reflected in 
the minutes of the present meeting. He noted that as Members were aware, this matter required a 
political engagement on the part of all WTO Members . 
8.28.   The DSB took note of the statements.  WT/DSB/M/447  
- 26 - 
  9  STATEMENT BY BRAZIL REGARDING THE PANEL REPORT ON : "INDONESIA – MEASURES 
CONCERNING THE IMPORTATION OF CHICKEN MEAT AND CHICKEN PRODUCTS: 
RECOURSE TO ARTICLE 21.5 OF THE DSU BY BRAZIL"  
9.1.  The representative of Brazil , speaking under "Other Business",  said that his country wa s 
surprised and deeply disappointed by Indonesia's decision to appeal "into the void" the report by the 
compliance panel in th is dispute.  Brazil had initiated this dispute in October  2014. When the original 
Panel had been  established, Brazil  had stressed that, since 2009, Brazil had been trying to export 
chicken meat and chicken products to Indonesia . Over the years, several attempts had been made 
by Brazil to overcome the barriers imposed by Indonesia against its exports,  to no avail . Brazil  had 
noted at that time that there was no justification for the import ban imposed by Indonesia o n 
Brazilian exports.  The original Panel had found that Indonesia had indeed been in breach of its 
obligations under the GATT and the SPS Ag reement . After th e DSB had  adopted the 
recommendations of the original Panel in November  2017, Indonesia had agreed to a period of 
eight months to comply with the DSB rulings and bring its measures into conformity with its 
obligations . In its report circul ated in November 2020 , three years after the original Panel report 
had been  adopted, the compliance Panel had found that Indonesia had failed to comply.  By appealing 
the compliance Panel report to an Appellate Body that it kn ew was  unable to function, Indonesia 
sought  to evade its obligations and the consequences of its decade -long inaction . This was all the 
more regrettable because Indonesia had expressly assured Brazil, by a letter from its Permanent 
Representative dated 1 3 August  2020, that it would not resort to appeal under Article 16.4 of the 
DSU in this dispute.  Brazil wished  to note, in particular, the assurance by Indonesia in the following 
paragraph of that letter:  "[i]n this regard, we believe that both Parties are of the mutual view that 
appellate review proceedings under Article 16.4 DSU would not be productive in delivering a positive 
outcome for this dispute, bearing in mind the current circumstance surrounding the Appellate Body . 
Hence, we would like to provide the ass urance that Indonesia would resist to exercise its rights to 
file an appeal under Article 16.4 and Article 17 of the DSU for the report of the Article 21.5 panel . 
This is without prejudice to the rights of Indonesia to resort to alternative appellate proce dure, 
including through arbitration under Article 25 DSU based on agreement by both Parties ". Indeed, in 
light of this assurance, Brazil had agreed on three occasions  to request the compliance Panel to 
suspend its work - and thus not circulate its report - so as to give the parties more time to negotiate 
a solution . In fact, every time that Indonesia had asked Brazil to request the compliance Panel to 
suspend or keep suspended its work, Brazil had agreed.  
9.2.  He said that, a t first, Brazil had sought to negotia te a framework for compliance that could lead 
to a mutually agreed solution to th is dispute . After some iterations had indicated that Indonesia 
seemed intent on keeping its market effectively closed to chicken imports for an unreasonably long 
time, Brazil proposed an appeal -arbitration agreement . The procedures set out in such an agreement 
should not be a matter of controversy, and Brazil had expected that its conclusion should be rather 
straightforward.  Indonesia, however, had presented Brazil with a number of unreasonable demands  
that would have render ed the arbitration proceedings inexplicably lengthy or it would have possibly 
deprive d Brazil of any remedies, even if the arbitrator had confirmed, as the compliance Panel had 
done so , that Indonesia ha d failed to comply with the DSB 's rulings.  The compliance Panel had then 
circulated its report . It was worth  noting that, just prior to circulation, and unlike on previous 
occasions, Indonesia had not ask ed Brazil to request the Panel to keep its work susp ended.  That 
was why  Brazil was so surprised and disappointed with Indonesia's decision to appeal into the void . 
This disappointment was compounded by the fact that Indonesia had formally not only committed , 
but indeed had given  an assurance not to appeal i nto the void . After years of attempts at negotiation 
and WTO litigation, Brazil 's producers were left without any prospect of resolution of this dispute . 
Brazil w ould consider all options that might be available to safeguard its rights in response to  
Indon esia's continued ban on  its exports.  
9.3.  The representative of Indonesia  said that his country wished to thank Brazil for its statement . 
At the same time, Indonesia  wished  to thank the Panel and the WTO Secretariat for their hard work 
and contribution to the compliance review in this  dispute.  Nevertheless, Indonesia expressed regret 
at the compliance Panel's decision that Indonesia, in respect of certain measures, ha d failed to 
comply with the recommendations and rulings of the original Panel. Meanwhile, as Indonesia ha d 
reiterated on numerous occasions, significant corrective actions ha d been carried out in order to 
implement the original Panel 's recommendations and rulings . Therefore, Indonesia truly believe d 
that full compliance ha d been successfully ach ieved. Given the current , non-function ing state of  the 
Appellate Body, Indonesia and Brazil ha d made serious  efforts, in good faith, to find an amicable 
solution to this dispute . Both parties ha d also attempted to find common ground to address the legal WT/DSB/M/447  
- 27 - 
  issues arising from the compliance Panel report in this dispute . This  includ ed an attempt at reaching 
agreement on an  alternative appellate mechanism through arbitrati on under Article 25 of the DSU. 
However, despite intensive discussions, an agreement ha d yet to be reached b etween the  Parties.  
Considering the importance of address ing the legal errors in the compliance P anel report, Indonesia 
had been  left with no option other than to  use its legitimate right to file an appeal in accordance 
with Article s 16.4 and 17 of the DSU . Indonesia  believe d that this avenue offered a  solution to the 
absence of objective assessment carried out in the compliance Panel proceedings.  Indonesia w ished 
to inform the DSB  that it ha d submitted its notice of appeal along with its app ellate  submission, and 
that it had request ed that the Appellate Body modify or reverse the compliance Panel's 
recommendations and rulings in th is dispute . Indonesia st ood ready to communicate with Brazil and 
the Secretariat regarding the appellate procedure in accordance with the DSU.  
9.4.  The representative of the European Union  said that this was yet another dispute that illustrated 
the grave conseq uences of the blockage of AB appointments since 2017. That blockage frustrated 
the essential rights of Members that had been agreed multilaterally in the DSU . In that regard, the 
EU referred to its statement  under Agenda item 6 of the 28 September 2020 DSB meeting, where 
the EU had elaborated on these consequences and on the possibility of appeals being adjudicated 
upon through appeal arbitration based on Article 25 of the DSU, consistently with the principle s of 
the DSU .  
9.5.  The representative of Canada  said that s ince 11 December 2019, the Appellate Body ha d 
effectively been non -functioning. Article 3.10 of the DSU provide d that, where a dispute ar ose, 
Members w ould engage in dispute settlement proce edings  in good faith and in an effort to resolve 
the dispute. The inability of the Appellate Body to carry out its appellate review responsibilities ha d 
undermined the established process under the DSU for dispute settlem ent. But the obligation in 
Article 3.10 to make good faith efforts to resolve the dispute still st ood. No Member should seek to 
benefit unfairly from the current impasse. In the context of specific disputes, solutions exist ed to 
address the current Appella te Body impasse. In particular, disputing parties could  agree to resort to 
procedures such as those set out in Annex 1 to the MPIA (document JOB/DSB/1/Add.12) to complete 
the appeal process. Canada believe d that it was crucial for all disputing parties to adhere to their 
good faith commitment under Article 3.10 of the DSU by making every effort to find an acceptable 
solution. Failure to find such a solution would risk resort to self -help measures, which in turn would 
erode confidence in the rules -based fram ework for governing international trade. No Member would 
gain from this situation in the long term. A Member acting in good faith should find no comfort in 
benefitting from an unfair – and short -term – advantage it possesse d due to the absence of a 
functio ning Appellate Body.  
9.6.  The representative of the Russian Federation  said that her country wished t o refer to its 
statements made at previous DSB meetings with respect to the practice of appealing panel reports 
"into the void ". The Russian Federation reitera ted its disappointment with the fact that WTO Members 
continue d to file appeals notwithstanding the Appellate Body 's critical state . In fact, the last AB 
member 's term had expired on 3 0 November  2020. With the recent appeal notified by Indonesia, 
the resolution of six disputes was effectively blocked . 
9.7.  The DSB took note of the statements . 
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