RESTRICTED  
  
WT/DSB/M/437  
 
30 January 2020 
(20-0715) Page: 1/26 
Dispute Settlement Body  
22 November 2019    
 
 
MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 22 NOVEMBER 20191 
Chairman: H.E. Dr David Walker (New Zealand)  
Prior to the adoption of the Agenda , the Chairman  inform ed delegations that the consultations on 
the 2019 Draft Annual Report were ongoing and that more time was needed to continue these 
consultations on some elements of this Draft. Therefore, the Chair  propose d that the item concerning 
the adoption of the 2019 Draft Annual Report of the DSB be removed from the Agenda of the present 
meeting. The Secretariat would continue updating the draft Report to reflect the DSB's actions until 
the end of 2019 as well as the actions to  be taken in the first few months of 2020 in order for the 
DSB to be able to adopt the  Report in time to be submitted to the General Council, which would then 
forward the Annual Report of the DSB to the 12th Ministerial Conference to be held in June 2020.  
 
 
Table of Contents  
1   SURVEILLANCE OF IMPLEMENTATION OF RE COMMENDATIONS  
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  ................................ ..........................  5 
E. United  States – Certain methodologies and their application to anti -dumping proceedings 
involving China: Status report by the United  States  ................................ ................................ . 5 
F. Indonesia – Importation of horticultural products, animals and animal products:  
Status report by Indonesia  ................................ ................................ ................................ ... 6 
G. Brazil – Certain measures concerning taxation and charges: Status report by Brazil  ................  7 
H. Brazil – Certain measures concerning taxation and charges: Status report by Brazil  ................  8 
2   UNITED STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  OF 2000:  
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE DSB  ..........................  9 
A. Statement by the European Union  ................................ ................................ .....................  9 
 
1 The 22 November 2019 DSB meeting was  suspended  on the Agenda item entitled: "Pending 
Appeals  - Statement by the Chairman"  to allow more time for Chair's consultations. Subsequently, the meeting 
was reconvened on 3 December 2019  in order to consider the suspended item  (see page 23) .  WT/DSB/M/43 7 
 
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3   EUROPEAN COMMUNI TIES AND CERTAIN MEM BER STATES – MEASURE S 
AFFECTING TRADE IN L ARGE CIVIL AIRCRAFT:  IMPLEMENTATION OF T HE 
RECOMMENDATIONS ADOP TED BY THE DSB  ................................ ................................ .. 10 
A. Statement by the United States  ................................ ................................ ....................... 10 
4   STATEMENT BY THE  UNITED STATES ON SY STEMIC CONCERNS REGA RDING  
THE COMPENSATION OF APPELLATE BODY MEMBE RS ................................ ....................  11 
5   APPELLATE BODY A PPOINTMENTS: PROPOSA L BY ANGOLA; ARGENTI NA; 
AUSTRALIA; BENIN; PL URINATIONAL STATE OF  BOLIVIA; BOTSWANA; BRAZIL; 
BURKINA FASO; BURUND I; CABO VERDE; CAMER OON; CANADA; CENTRAL  AFRICAN 
REPUBLIC; CHAD; CHIL E; CHINA; COLOMBIA; CONGO; COSTA RICA; C ÔTE D'IVOIRE; 
CUBA; DEMOCRATIC REPU BLIC OF CONGO; DJIBO UTI; DOMINICAN REPUB LIC; 
ECUADOR; EGYPT; EL S ALVADOR; ESWATINI; T HE EUROPEAN UNION; G ABON; THE 
GAMBIA; GHANA; GUATE MALA; GUINEA; GUINEA -BISSAU; HONDURAS; H ONG KONG, 
CHINA; ICELAND; INDI A; INDONESIA; ISRAEL ; KAZAKHSTA N; KENYA; REPUBLIC O F 
KOREA; LESOTHO; LIEC HTENSTEIN; MADAGASCA R; MALAWI; MALAYSIA;  MALI; 
MAURITANIA; MAURITIU S; MEXICO; MOROCCO; MOZAMBIQUE; NAMIBIA;  NEW 
ZEALAND; NICARAGUA; NIGER; NIGERIA; NORT H MACEDONIA; NORWAY;  PAKISTAN; 
PANAMA; PARAGUAY; PE RU; QATAR; RUSSIAN FEDERATION; RWANDA; SENEGAL; 
SEYCHELLES; SIERRA L EONE; SINGAPORE; SOU TH AFRICA; SWITZERLA ND; THE 
SEPARATE CUSTOMS TER RITORY OF TAIWAN, PE NGHU, KINMEN AND MAT SU; 
TANZANIA; THAILAND; TOGO; TUNISIA; TURKE Y; UGANDA; UKRAINE; URUGUAY;  
THE BOLIVARIAN RE PUBLIC OF VENEZUELA;  VIET NAM; ZAMBIA AN D ZIMBABWE  ........  16 
6   PENDING APPEALS  ................................ ................................ ................................ .... 24 
A. Statement by the Chairman  ................................ ................................ ............................. 24 
1  SURVEILLANCE OF IMPL EMENTATION OF  RECOMMENDATIONS ADO PTED 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.201)  
 
B. United  States – Section  110(5) of the US Copyright Act: Status report  by the United  States 
(WT/DS160/24/Add.176)  
 
C. European Communities – Measures affecting the approval and marketing of biotech products: 
Status report by the European Union (WT/DS291/37/Add.139)  
 
D. United  States – Anti-dumping and countervailing measures  on large residential washers from 
Korea: Status report by the United  States (WT/DS464/17/Add.23)  
 
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.15)  
 
F. Indonesia – Importation of horticultural products, animals and animal products: Status report by 
Indonesia (WT/DS477/21/Add.10 – WT/DS478/22/Add.10)  
 
G. Brazil – Certain measures concerning taxation and charges: Status report by Brazil 
(WT/DS472/16)  
 
H. Brazil – Certain measures concerning taxation and charges: Status report by Brazil 
(WT/DS497/14)  
 
1.1.  The Chairman noted that there were eight sub-items under this Agenda item concerning status 
reports submitted by delegations pursuant to Art icle 21.6 of the DSU. He recall ed that  Article 21.6 
require d 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 es tablishment of the reasonable period of time and shall remain on the DSB's 
Agenda until the issue is resolved". Under this Agenda item, he invite d delegations to provide up to 
date information about their compliance efforts. He also remind ed delegations th at, as provided for 
in Rule 27 of the Rules of Procedure for DSB meetings: " [r]epresentatives should make every effort WT/DSB/M/43 7 
 
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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.20 1) 
1.2.  The Chairman  drew attention to document WT/DS184/15/Add.20 1, which contain ed the status 
report by the United  States on progress in the implementation of the DSB's recommendations in the 
dispute concerning US  anti-dumping  measures on certain hot -rolled steel products from Japan.  
1.3.  The representative of the United States  said that t he United States had provided a status report 
in this dispute on 11 November 2019, in accordance with Article 21.6 of the DSU. The United States 
had addressed the DSB 's recommendations and rulings with respect to the calculation of anti -
dumping margins in the hot -rolled steel anti -dumping duty investigation at issue. With respect to 
the recommendations and rulings of the DSB that h ad yet to be addressed, the US Administration 
would work with the US Congress with respect to appropriate statutory measures that would resolve 
this matter.  
1.4.  The representative of Japan  said that his country thank ed the United States for its latest status 
report and its statement made at the present meeting . Japan , once again , called on the United 
States to fully implement the DSB 's recommendations and rulings so as to resolve this matter.  
1.5.  The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
B. United  States – Section  110(5) of the US Copyright Act: Status report by the 
United  States (WT/DS160/24/Add.17 6) 
1.6.  The Chairman  drew attention to document WT/DS160/24/Add.17 6, which contain ed the stat us 
report by the United  States on progress in the implementation of the DSB's recommendations in the 
dispute concerning Section  110(5) of the US Copyright Act.  
1.7.  The representative of the United States  said that t he United States  had provided a status report  
in this dispute on 11 November 2019, in accordance with Article 21.6 of the DSU. The US 
Administration w ould continue to confer with the European Union, and to work closely with the US 
Congress, in order to reach a mutually satisfactory resolution of this  matter.  
1.8.  The representative of the European Union  said that his delegation wished to thank the United 
States for its status report and  for its statement made at the present meeting . The EU wished to 
refer to its previous statements  and reiterated that it wished to resolve this dispute as soon as 
possible.  
1.9.  The representative of China  said that his country noted that t he United States ha d provided 
177 status reports in this dispute. However, none of these reports indicate d any progres s on 
implementation. Regrettably, nearly two decades after the DSB had adopted the Panel report in this 
dispute , the United States continue d to fail to bring its WTO -inconsistent measures into conformity , 
as prescribed by Article 21.1 of the DSU . The United States was  a bad example as  the only WTO 
Member who fail ed to implement the DSB 's recommendations and rulings under the TRIPS 
Agreement. Prompt compliance was a fundamental legal obligation set out in by Article 21.1 of the 
DSU. The fulfilment of th is obligation was essential to the well -functioning of the dispute settlement 
system which contribute d to the existence of a rules-based multilateral trading system. When the 
United States, the most frequent user and the main beneficiary of the system, had chose n to 
disregard its implementation obligation for this long, the effectiveness of the dispute settlement 
system to rein in trade distortions was inevitably compromised. China, therefore , urged the United 
States to faithfully hono ur its commitments und er the DSU and the TRIPS Agreement by 
implementing the DSB 's recommendations and rulings in this dispute without further delay.  
1.10.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  WT/DSB/M/43 7 
 
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C. European  Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European  Union (WT/DS291/37/Add.13 9) 
1.11.   The Chairman  drew attention to document WT/DS291/3 7/Add.13 9, which contain ed the 
status report by the European  Union on progress in the implementation of the DSB's 
recommendations in the dispute concerning measures affecting the approval and marketing of 
biotech products.  
1.12.   The representative of the Europea n Union  said that t he EU continue d to progress with the 
authori zations where the European Food Safety Authority ha d finalized its scientific opinion and had 
concluded that there were no safety concerns. As repeatedly explained by the EU and confirmed by 
the US delegation during the EU -US biannual consultations held on 12 June 2019, efforts to reduce 
delays in authori zation procedures were constantly maintained at a high level , and this  at all stages 
of the authori zation procedure. This ha d resulted in a clear improvement of the situation. At previous  
DSB meetings, the United States had referred to what was known as the EU "opt-out Directive ". The 
EU wished  to reiterate that the DSB 's recommendations and rulings d id not cover that "opt-out 
Directive ". The EU act ed in line with its WTO obligations. Finally, the EU wished to recall that the EU 
approval system was not covered by the DSB's recommendations and rulings.  
1.13.   The representative of the United States  thank ed the European Union ( "EU") for i ts status 
report and for its statement made at the present meeting . The United States continue d to see 
persistent delays that affect ed dozens of applications that ha d been awaiting approval for an 
extended period. The EU h ad previously suggested that the f ault was with the applicants. The United 
States disagree d; US concerns relate d to delays at every stage of the approval process resulting 
from the actions or inactions of the EU and its member States. Even when the EU had finally 
approve d a biotech product, EU member States continue d to impose unwarranted restrictions on the 
suppose dly approved product. As the United States had noted at prior DSB meetings, the 
amendment of EU Directive 2001/18, through EU Directive 2015/413, permit ted EU member States 
to restrict or prohibit certain uses of genetically -modified organisms ( "GMOs "), even where the 
European Food Safety Authority ( "EFSA") had concluded that the product was safe. At least 17 EU 
member States, as well as certain regions within EU member States, ha d submitted requests to 
adopt such measures with respect to MON -810 maize. The  EU's only response, which it continue d 
to repeat, was that the member States d id not restrict marketing or free movement of MON -810 in 
the EU. As the United States had noted at the prior DSB meeting, this answer d id nothing to address 
US concerns. The res trictions adopted by EU member States restrict ed international trade in these 
products and ha d no scientific justification. 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 the EU to ensure that all of its measures affecting the approval of biotech products, including 
measures adopted by individual EU member States, were based on scientific principles, and that 
decisions were taken without undue delay.  
1.14.   The representative of the European Union  said that , in response  to the US statement , the EU 
wished to make the following comments. First, t he WTO Agreement d id not require full international 
harmoni zation and le ft some regulatory space or autonomy to individual WTO Members. The EU had 
different regulatory approaches to non -GMOs and GMOs but, in all cases, such regulations d id not 
discriminate between imported and domestic like products. Second, n o EU member State h ad 
imposed any "ban" on the use of GMOs . The EU underst ood that the United States accept ed that 
point as they only refer red to applications for restriction . Under the terms of the Directive, an EU 
member State could adopt measures restricting or prohibitin g cultivation only when such measures 
were in line with EU law and when such measures were reasoned, proportional, non -discriminatory 
and based on compelling grounds. The EU's third point was that t he free movement of seeds was 
embedded in Article 22 of Directive 2001/18/EC  which provide d that "[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 wished to  note that , according to the provisions of 
the opt -out Directive , and in particular 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 varie ties of agricultural species include d 150 varieties of maize MON -810, to which the 
United States  had referred. Those 150 varieties of MON -810 maize  were allowed to be marketed in 
the EU. Thus far,  the European Commission ha d never received any complaint fr om 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 for MON-810 seeds. If the U nited States 
had any evidence at their disposal substantiating the disruption of the free movement of MON -810 
seeds within the EU , the EU would be happy to discuss this with the United States bilaterally.  WT/DSB/M/43 7 
 
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1.15.   The DSB took note of the statements and agree d to revert to this ma tter at its next regular 
meeting.  
D. United  States – Anti-dumping and countervailing measures on large residential 
washers from Korea: Status report by the United  States (WT/DS464/17/Add.2 3) 
1.16.   The Chairman  drew attention to document WT/DS464/17/Add.2 3, which contain ed the status 
report by the United  States on progress in the implementation of the DSB's recommendations in the 
dispute concerning anti -dumping and countervailing measures on large residential washers from 
Korea.  
1.17.   The representative of the United States  said that t he United States had provided a status 
report in this dispute on 11 November 2019, in accordance with Article 21.6 of the DSU. On  
6 May 2019, the US Department of Commerce had published a notice in the US Federal Register 
announcing th e 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 ha d completed implementation of the DSB 's recommendations concerning t hose anti -
dumping and countervailing duty orders. The United States continue d to consult with interested 
parties on options to address the DSB's recommendations relating to other measures challenged in 
this dispute.  
1.18.   The representative of Korea  said that h er country wished to thank the United States for its 
status report. Korea , once  again , urged the United States to take prompt and appropriate steps to 
implement the DSB 's recommendations for the "as such " measure in this dispute.  
1.19.   The representative of Canada  said that t he United States continue d to fail to comply with the 
DSB's ruling, arising out of the Appellate Body report in this dispute , that the "differential pricing 
methodology " was "as such " WTO-inconsistent. The United States  had also ignored the DSB 's 
recommendation that the United States bring itself into compliance with its obligations. Instead, the 
United States continue d to apply the "as such "' inconsistent differential pricing methodology in 
investigations with respect t o foreign companies and continue d to collect cash deposits from foreign 
exporters based on its inconsistent methodology. As a result, Canada had been  forced to challenge 
the differential pricing methodology measure in the "US – Differential Pricing Methodology " dispute 
(DS534) and Viet Nam was currently doing the same in  the "US – Fish Fillets " dispute (DS536) . 
Before these Panels, the United States  had simply re -litigated the WTO -consistency of its differential 
pricing methodology and ha d asked the Panels to ignore the Appellate Body 's findings. Canada 
remain ed deeply concerned with the continued US failure to comply with the DSB 's recommendations 
and rulings in this dispute. This failure seriously undermine d the security and stability of the 
multilateral trading system.  
1.20.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
E. United  States – Certain method ologies and their application to anti -dumping 
proceedings involving China: Status report by the United  States (WT/DS471/17/Add.1 5) 
1.21.   The Chairman  drew attention to document WT/DS471/17/Add.1 5, which contain ed the status 
report by the United  States on progress in the implementation of the DSB's recommendations in the 
dispute concerning certain methodologies and their application to anti -dumping proceedings 
involving China.  
1.22.   The representative of the United State s said that t he United States had provided a status 
report in this dispute on 11 November 2019, in accordance with Article 21.6 of the DSU. As explained 
in that report, the United States continue d to consult with interested parties on options to address 
the DSB's recommendations.  
1.23.   The representative of China  said that, o n 22 May 2017, the DSB had adopted the Appellate 
Body report and the modified Panel report in this dispute which had found that certain measures 
taken by the United States were inconsistent w ith the requirements of the Anti -Dumping Agreement, 
including: ( i) the use of zeroing under the W -T methodology was "as such " inconsistent with 
Article  2.4.2; ( ii) the so -called "single rate presumption " as such violate d Article s 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. Regrettably, more than two years after the DSB had adopted WT/DSB/M/43 7 
 
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its recommendations and rulings  in this dispute , and 15 mont hs after the expiry of the reasonable 
period of time, the United States continue d to fail to bring its WTO -inconsistent measures into 
conformity. What was even worse  was that none of the 16 status reports provided thus far by the 
United States could indica te any concrete implementation action. As a consequence, the WTO -
incompatible  US anti-dumping measures continue d to infringe China 's legitimate interests provided 
for in relevant covered agreements. On 1 November 2019, the Arbitrator appointed in accordance 
with Article 22.6 of the DSU had determined that the level of nullification or impairment incurred 
was US $ 3.579 billion. Notably, this was the third largest nullification amount that had been awarded 
in the history of the WTO. This was a testimony of the severe hardship that Chinese companies and 
workers were endur ing. As China had noted at prior DSB meetings, the US failure to implement the 
DSB's recommendations and rulings , especially in the context of various trade remedy dispute s, had 
become a systemic problem that should be of concern to the entire Membership. Therefore , it was 
not surprising that China was not the only victim  of such conduct . Over the past years, the United 
States ha d chosen to ignore the DSB's recommendations and rulings whenever they were contrary 
to its interests. The United States  had either maintain ed its WTO -inconsistent measures unchanged 
or applied certain cosmetic changes which had not fundamentally eliminated  their non-conformity. 
WTO Members such as China, Canada, Korea and Viet Nam were forced to repeatedly bring such 
matters , which had already been settled , before panels and the Appellate Body. This entailed that 
various resources were being wasted in th ose unnecessary dispute settl ement proceedings , and that 
the effectiveness and confidence of Members regarding the dispute settlement system was being  
severely undermined. Article 21.1 of the DSU was clear: "[p]rompt compliance with 
recommendations or rulings of the DSB was essential in order to ensure effective resolution of 
disputes to the benefit of all Members ". As the principal architect and main user of the dispute 
settlement system, no Member was in a bett er position than the United States to know about the 
importance of fulfilling its implementation obligation s. China was still waiting to see concrete actions 
from the United States to promptly and completely implement the DSB 's recommendations and 
rulings in this dispute . Nevertheless , China  stood ready to take proper actions in accordance with 
WTO rules in order to safeguard its legitimate interests.  
1.24.   The representative of the United States  said that t he United States was aware of the decision 
of the Arbitrator concerning the level of nullification or impairment. China 's decision to pursue that 
arbitration was disappointing, and not constructive. The United States was troubled that the 
Arbitrator had applied an approach to determining the amount of imp act on China that ha d no 
foundation in economic analysis. Specifically, the first step of the Arbitrator 's two -step approach 
necessarily inflate d and overstate d the impact. The United States had explained this to the 
Arbitrator. Even China had argued again st the use of a two -step approach. It was unfortunate that 
the Arbitrator nevertheless had applied its two -step approach over the objections of the United 
States and China. The United States was willing to discuss this matter with China on a bilateral basi s. 
1.25.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
F. Indonesia – Importation of horticultural products, animals and animal products: Status 
report by Indonesia (WT/DS477/21/Add. 10 – WT/DS478/22/Add. 10) 
1.26.   The Chairman  drew attention to document WT/DS477/21/Add. 10 – WT/DS478/22/Add. 10, 
which contain ed the status report by Indonesia on progress in the implementation of the DSB's 
recommendations in the dispute concerning importation of horticultural products, animals and 
animal products.  
1.27.   The representative of Indonesia  said that his country had submit ted this report pursuant to 
Article 21.6 of the DSU. Indonesia was committed to implementing the DSB's recommendations and 
rulings  in these disputes. Significant changes or adjustments had been made, both in the Ministry 
of Agriculture ( MoA) and Ministry of T rade ( MoT) regulations, in order to address the measures at 
issue by removing inter alia  the measures of : (i) harvest period restriction ; (ii) import realization 
requirements ; (iii) six -months harvest requirement ; and (iv) reference price. No such measures 
could now be  found to exis t. Indonesia also wished to report that the latest adjustment had been 
made by issuing MoT Regulation No.  72/2019 which amend ed MoT Regulation No.  29/2019 
concerning Provisions for Expor t and Import of Animal and Animal Products. This Regulation ha d 
been notified to the Committee on Import Licensing on 16 October 2019 in document 
G/LIC/N/2/IDN/44. Regarding  Measure 18, Indonesia w ished  to reaffirm that the documents 
required for the statu tory changes, including the draft amendments and their respective academic 
drafts , had been prepared by the Government. Indonesia commit ted itself to continu ing the process WT/DSB/M/43 7 
 
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of amending its relevant laws in conformity with its national laws and regulations.  Indonesia would 
continue to engage with New Zealand and the United States regarding matters related to the DSB's 
recommendations and rulings in these disputes . 
1.28.   The representative of New Zealand  said that New Zealand wished to thank Indonesia for its 
status report and for its statement made at the present meeting . New Zealand acknowledge d the 
steps that had been taken by Indonesia, and Indonesia 's commitment to comply fully with the DSB's 
recommendations and rulings in this d ispute . Both of the compliance deadlines that had been agreed 
between the parties had now expired. New Zealand was seriously disappointed that full compliance 
had still not been reached. New Zealand was particularly concerned about:  the failure to remove 
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. These issues, and others, contin ued to adversely impact New 
Zealand exporters. Indonesia had yet to provide a clear explanation of how it w ould bring these 
measures into compliance, and the timelines for doing so.  New Zealand strongly encourage d 
Indonesia to take appropriate steps, swift ly, to achieve long -term, commercially meaningful 
compliance with the DSB's recommendations and rulings in this dispute.  
1.29.   The representative of the United States  said that Indonesia continue d to fail to bring its 
measures into compliance with WTO rules.  The United States and New Zealand agree d that 
significant concerns remain ed with the measures at issue, including the continued imposition of: 
harvest period restrictions, import realization re quirements, warehouse capacity requirements, 
limited application windows, limited validity periods, and fixed licensed terms.  The United States 
remain ed willing to work with Indonesia to fully and meaningfully resolve this dispute. The United 
States unders tood that Indonesia claim ed to have "completed its enactment process " of certain 
regulations, but it was still waiting to hear from Indonesia on whether and how such action would 
bring its measures into full compliance. It also remain ed unclear how Indones ia's proposed legislative 
amendments would address Measure 18 and when Indonesia would complete its process. The United 
States look ed forward to receiving further detail from Indonesia regarding the changes to its 
regulations and laws, especially with resp ect to Ministry of Agriculture Regulation 39/2019 on RIPH 
requirements and Regulation 46/2019 on Strategic Horticultural Commodities.  
1.30.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
G. Brazil – Certain m easures concerning taxation and charges: Status report by Brazil 
(WT/DS472/16)  
1.31.   The Chairman  drew attention to document WT/DS472/16 , which contain ed the status report 
by Brazil on progress in the implementation of the DSB's recommendations in the dispute concerning 
certain measures concerning taxation and charges . 
1.32.   The representative of Brazil  said that his country had submitted a status report in this dispute 
on 11 November 2019 , in accordance with Article 21.6 of the DSU. In this regard, Brazil wished to 
provide inform ation on  the steps which it had taken towards the implementation of  the DSB's  rulings 
and recommendations  in this dispute . On 11 January 2019, the DSB had adopted the 
recommendations and rulings in this dispute . At the 28 January 2019  DSB meeting, Brazil had 
informed the Membership of its intention to implement the DSB's recommendations and rulings in  
this dispute . Brazil an d the EU had  agree d that the reasonable period of time  (RPT)  for Brazil to 
implement  the DSB's  recommendations and rulings would end on 31 December 2019 , with the 
exception of the measures found to be prohibited subsidies , for which Brazil had agreed to br ing its 
measures into compliance on 21 June 2019. With regard to implementation, three programmes had 
expired before the adoption of the reports of the Panel and of the Appellate Body : INOVAR -AUTO 
had expired on 31 December 2017 ; PATVD  had expired on 22 January 2017 ; and Digital Inclusion 
had expired  on 30 December 2015. These programmes ha d expired and ha d not been renewed. 
Therefore, there were no further pending obligations with regard to the implementation of the DSB's 
recommendations in relation to t hose programmes. With regard to  the findings on "Processos 
Produtivos Básicos " (PPBs) , on 19 June 2019, the Ministry of the Economy and the Ministry of Science 
and Technology had issued Interministerial Implementing Order 1 revoking Implementing Orders 
which had been found to be inconsistent with the covered agreements. With respect to the findings 
on the Informatics and PADIS programmes, preparations  were on-going and Brazil was consulti ng 
with all interested stakeholders in order to bring those measures into conformity within the agreed 
RPT. WT/DSB/M/43 7 
 
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1.33.   The representative of the European Union  said that his delegation  wished to thank Brazil for 
its status report and for its statement made at the present meeting . The EU wished  to resolve this 
dispute as soon as possible and was following Brazil 's implementation efforts very closely. The EU 
recall ed that the reasonable period of time (RPT) agreed by the parties would expire on 
31 December  2019. In addition, as agreed between the parties in document WT/DS472/15, the time 
period for the withdrawal of the subsidies that had been found to be prohibited had expired on 
21 June 2019. The EU took note of the steps taken by Brazil towards compliance , as set out in the 
status report  and as repeated in its statement made at the present meeting . However, the EU still 
wished to raise  a certain number of questions. The EU's first question relate d to the prohibited 
subsidies . The EU took note of Brazil 's contention that certain programmes had expired before the 
adoption of the reports in this dispute, and that they ha d not been renewed. The EU also t ook note 
that for the findings on the so -called nested "Processos Produtivos Básicos " (PPBs), Brazil ha d 
revoked certain measures, in particular , Implementing Orders, and that some new substitute 
measures ha d been enacted. The EU, therefore, asked whether Brazil could confirm that all of 
Implementing Orders concerned ha d been revoked . The EU believed that many of these measures 
remain ed in force and that it would therefore be useful to receive a detailed list of the Implementing 
Orders that ha d been revoked. Assuming that some of the measures at issue remain ed in force, the 
EU asked whether  Brazil could explain  what it would do to address the current situation . In addition, 
the EU had concerns about many of the substitute Implementing Orders that ha d been enacted. The 
EU recall ed that such substitute measures also had to be consistent with WTO rules, and the EU  
reserve d its position in this respect. The EU would appreciate it if Brazil could provide it with a 
detailed list of the substitute Implementing Orders so that the EU could  confirm that, indeed , the 
matter was satisfactorily resolved. With respect to the removal of the other discriminatory elements 
covered by the RPT, the EU underst ood, and Brazil 's statement had  confirmed this understanding , 
that Brazil was preparing to ena ct legislation . The EU looked forward to Brazil 's full compliance with 
respect to these measures before the expiry of the reasonable period of time. The EU expect ed Brazil 
to be able to comply with the 31 December 2019 deadline, as Brazil ha d indicated in its statement 
made at the present meeting as well as in its status report. In conclusion, the EU looked forward to 
finding a good outcome with Brazil remained available to discuss  these issues  bilaterally.  
1.34.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
H. Brazil – Certain measures concerning taxation and charges: Status report by Brazil 
(WT/DS497/14)  
1.35.   The Chairman  drew attention to document WT/DS497/14 , which contain ed the status report 
by Brazil on progress in the implementation of the DSB's recommendations in the dispute concerning  
certain measures concerning taxation and charges . 
1.36.   The representative of Brazil  said that his country had submitted a status report regarding this 
dispute on 11 November 2019 , in accordance with Article 21.6 of the DSU. On 11 January 2019, the 
DSB had adopted its recommendations and rulings in this dispute . At the 28 January 2019  DSB 
meeting, Brazil had informed the Membership of its i ntention to implement the DSB's 
recommendations  and rulings in this dispute . Brazil and Japan had agreed that the reasonable period 
of time (RPT) for Brazil to implement the DSB's recommendations and rulings would end on 
31 December 2019 , with the exception of the measures found to be prohibited subsidies , for which 
Brazil had agreed to bring its measures into compliance on 21 June 2019. Three programmes ha d 
expired before the adoption of the reports  of the Panel and Appellate Body : INOVAR -AUTO  had 
expired on 31 December 2017 ; PATVD had expired on 22  January  2017; and Digital Inclusion had 
expired on 30 December 2015. These programmes ha d expired and ha d not been renewed. 
Therefore, there were no further obligations with regard to the DSB's  recommendations regarding 
those programmes. With regard to the findings on "Processos Produtivos Básicos " (PPBs) , on 
19 June 2019, the Ministry of the Economy and the Ministry of Science and Technology had issued 
Interministerial Implementing Order 1 revoking Implementing Orders which had been found to be 
inconsistent with the covered agreements. With respect to the findings on the Informatics and PADIS 
programmes , preparations were on-going and Brazil was consulti ng with all interested stakeholders 
in order to bring those measures into conformity within the agreed RPT.  
1.37.   The representative of Japan  said that his country wished to thank Brazil for its status report 
and for its statement made at the present meeting . Japan refer red to its statement s made at the 
January 2019 DSB meetings. Japan continue d to seek a full and prompt implementation of the DSB's 
recommendations and rulings  in this dispute  by 31 December 2019, as agreed  between the parties . WT/DSB/M/43 7 
 
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While Japan  acknowledge d the actions taken by Brazil in this regard , several of Japan's questions 
regarding Brazil 's measures  to comply with the DSB's recommendations and rulings r emained 
unanswered . First, with respect to prohibited subsidies, Brazil had indicated in its report that all the  
relevant  prohibited subsidies had been revoked before the agreed deadline of 21 June 2019. 
However, it appear ed that a number of prohibited sub sidies remain ed in force. Japan would be 
grateful if Brazil could: (i) provide Japan  with a list of all the prohibited subsidies, identifying which 
ICT programme(s) each of them relate d to; (ii) identify the prohibited subsidies that it ha d already 
revoked , and those that were no longer in effect due to the expiry of the relevant ICT programme 
contained in that list; and (iii) explain how Brazil planned  to address the remaining prohibited 
subsidies  should that be the case . Further more, Japan believed  that t he Implementing Orders , which 
seemed to be aimed  at amend ing or replac ing the prohibited subsidies , appeared to be  inconsistent 
with the WTO Agreement. Japan asked whether Brazil  could confirm  that the new orders in place did 
not contain local manufacturing obligations or discriminatory treatment which had been found  to be 
WTO-inconsistent by the adopted reports  in this dispute . Japan asked whether Brazil could provide 
a list of these new measures so as to allow  Japan  to verify  whether they were all WTO -consistent. 
Finally, the deadline for Brazil  to implement the DSB's recommendations and rulings was looming . 
As Brazil had already reported , it was preparing to bring the Informatics and PADIS programmes 
into compliance . Japan wo uld appreciate an explanation from Brazil on the necessary procedures 
and on the timeline for enacting the legislation with respect to the se two programmes by 
31 December  2019. Japan would continue to closely monitor all of Brazil's actions towards  bringing 
the measures at issue into conformity, as well as any substitute measures that were or would be in 
effect. Japan hope d to receive responses from Brazil to the points made in this statement at the 
earliest time possible and look ed forward to discus sing these matters with Brazil.  
1.38.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
2  UNITED STATES – CONT INUED DUMPING AND SU BSIDY OFFSET ACT OF 2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE DSB  
A. Statement by the European Union  
2.1.  The Chairman  recalled that this item was on the Agenda of the present meeting at the request 
of the European Union . He then invite d the representative of the European Union to speak.  
2.2.  The representative of the European Union  said that his delegation request ed, once again , that 
the United States stop transferring anti -dumping and countervailing duties to the US industry. Even 
if the amo unts ha d considerably decreased, the most recent  report under the Continued Dumping 
and Subsidy Offset Act of 2000, from December 2018 , showed that amounts were still being , in 
practice , disbursed. Every disbursement that still took place was clearly an ac t of non -compliance 
with the DSB's recommendations and rulings. As long as the United States did not fully stop 
transferring collected duties, th is Agenda  item would rightly remain under the surveillance  of the 
DSB. The EU assured  Members that, due to the long-standing  nature of this breach, it would continue 
to insist in this respect,  as a matter of principle , independent of the cost resulting from the 
application of such limited duties. The EU renew ed its call on the United States to abide by its clear 
obligation under Article 21.6 of the DSU to submit implementation reports in this dispute. The EU 
would continue to place this item  on the DSB's Agenda as long as the United States had not fully 
implemented the WTO ruling and the disbursements cease d completely.  
2.3.  The representative of Canada  said that his country wished to thank the European Union for 
placing this  item on the DSB's Agenda. Canada agree d with the EU that the Byrd Amendment should 
remain subject to the surveillance of the DSB until the United States cease d to administer it.  
2.4.  The representative of Brazil  said that, a s an original party to th is dispute, Brazil wished to 
thank , once again , the EU for placing this item on the DSB's Agenda. As anti -dumping and 
countervailing duties were still being disbursed to US domestic petitioners, Brazil call ed on the U nited 
States to fully comply with the DSB 's recommendations and rulings in this dispute.  
2.5.  The representative of the United States  said that a s the United States ha d noted at previous 
DSB meetings, the Deficit Reduction Act – which include d a provision repealing the Continued 
Dumping and Subsidy Of fset Act of 2000 – had been enacted into law in February 2006. Accordingly, 
the United States ha d implemented the DSB 's recommendations and rulings in these disputes. The 
United States recall ed, furthermore, that the EU ha d acknowledged that the Deficit Re duction Act WT/DSB/M/43 7 
 
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did not permit the distribution of duties collected on goods entered after 1 October 2007, more than 
12 years ago. Even aside from this, the United States question ed the trade rationale for inscribing 
this item  on the DSB's Agenda . In May 2019, the EU had notified the DSB that disbursements related 
to EU exports to the United States  had totalled US$ 4,660.86 in fiscal year 2018. As such, the EU 
had announced it would apply an additional duty of 0.001 percent – that is, one -one thousandth of 
a percent – on certain imports of the United States, including imports of sweet corn. One would think 
the EU member State customs authorities would incur far greater costs from appl ying these 
minuscule tariffs than the duties they collect ed. But it ha d been evident for years that it was not 
common  sense that was driving the EU 's approach to th e present  Agenda item. With respect to the 
EU's request for status reports in this matter, a s the United States had already explained at previous 
DSB meetings, there was no obligation under the DSU to provide further status reports once a 
Member announce d that it ha d implemented the DSB 's recommendations, regardless of whether the 
complaining par ty disagree d about compliance. The practice of Members – including the European 
Union as a responding party – confirm ed this widespread understanding of Article 21.6  of the DSU . 
Accordingly, since the United States ha d informed the DSB  that it ha d come into compliance in this 
dispute, there was nothing more for the United States to provide in a status report.  
2.6.  The DSB took note of the statements.  
3  EUROPEAN COMMUNITIES  AND CERTAIN MEMBER STATES – MEASURES AF FECTING 
TRADE IN LARGE CIVIL  AIRCRAFT: IMPLE MENTATION OF THE REC OMMENDATIONS 
ADOPTED BY THE DSB  
A. Statement by the United States  
3.1.  The Chairman  said that t his item was on the Agenda of the present meeting at the request of 
the United States . He then invite d the representative of the United States to speak.  
3.2.  The representative of the United States  noted that, once again , the European Union ha d not 
provided Members with a status report concerning the "EC – Large Civil Aircraft " (DS316)  dispute . 
As the United States had noted at several recent DSB meetings, the EU ha d argued – under a 
different Agenda item – that where the EU as a complaining party did not agree with another 
responding party Member 's "assertion that it has implemented the DSB ruling ", "the issue remains 
unresolved for the purposes of Article 21.6 DSU ". Under this Agenda item, however, the EU argue d 
that, by submitting a compliance communication, the EU no longer need ed to file a status report, 
even though the United States as the complaining party disagre ed that the EU ha d complied. The 
EU's position appear ed to be premised on two unfounded assertions, neither of which was based on 
the text of the DSU. First, the EU ha d erroneously argued that where "a matter is with the 
adjudicators, it is temporarily tak en out of the DSB 's surveillance ". At the 28 October 2019 DSB 
meeting, the EU had phrased this as "the crucial point for the defending party 's obligation to provide 
status reports to the DSB is the stage of the dispute. In the Airbus  case, the dispute is at a stage 
where the defending party does not have an obligation to submit status reports to the DSB ". There 
was nothing in the DSU text to support that argument, and the EU provide d no explanati on for how 
it read Article 21.6  of the DSU  to contain this limitation. And as Members well kn ew, based on the 
DSB's findings of EU non -compliance in this dispute, the DSB had recently authorized the United 
States to impose countermeasures in excess of US$ 7 billion annually due to the adverse effects on 
the United States from subsidies provided by four EU member States. Second, the EU , once again , 
relied on its incorrect assertion that the EU 's initiation of compliance panel proceedings mean t that 
the DSB was somehow deprived of its authority to "maintain surveillance of implementation of rulings 
and recommendations ". Yet again, there was nothing in Article 2 of the DSU or elsewhere that limit ed 
the DSB 's authority in this manner. It was another invention of  the EU. The EU should be providing 
a status report. Yet it ha d failed to do so, demonstrating the inconsistency in the EU 's position 
depending on its status as complaining or responding party. The US position ha d been consistent 
and clear: under Article 21.6 of the DSU, once a responding Member provide d the DSB with a status 
report that announce d compliance, there was no further "progress " on which it could report, and , 
therefore , no further obligation to provide a report. But , as the EU allegedly disagree d with this 
position, it should for future meetings provide status reports in this DS316 dispute . 
3.3.  The representative of the European Union  said that, a s in previous DSB meetings, the United 
States had explicitly s tated 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 
EU believed that such an  assertion  by the United States  remain ed without merit. As  the EU ha d 
repeatedly explained in past DSB meetings, and as the United States ha d just mentioned in its WT/DSB/M/43 7 
 
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statement , 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" dispute (DS316) , the dispute was at 
a stage where the defending party did not have an obligation to submit status reports to the DSB. 
The EU wished to remind  Members , once more,  that in th is dispute , the EU had notified to the WTO 
a new set of measures in a compliance communication which had been tabled at the 28 May 2018  
DSB meeting . The United States had responded that the measures included i n that communication 
did not bring the EU in full compliance with DSB 's recommendations and rulings. In light of the US 
position, on 29 May 2018 the EU had requested consultations with the United States, under Articles 
4 and 21.5 of the DSU. These consulta tions had failed to resolve the dispute. Consequently, the EU 
had asked for the establishment of a compliance panel. The compliance Panel had been established 
by the DSB on 27  August 2018 , and it was currently reviewing "the existence or consistency with a  
covered agreement of measures taken to comply with the recommendations and rulings " of the DSB. 
Therefore,  there was a compliance proceeding still ongoing in this dispute. Whether or not the matter 
was " resolved " in the sense of Article 21.6 was the very subject matter of this on -going litigation. 
The EU asked how it could be said that the defending party should submit "status reports" to the 
DSB in these circumstances. The EU would be very concerned with a reading of Article 21.6 of the 
DSU that would require the defending party to notify the purpo rted "status of its implementation 
efforts " through the submission of status reports to the DSB, while dispute settlement proceedings 
on that precise issue were on-going. The view of the EU was further supported by Article 2 of the 
DSU on the administratio n 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. Under Article  21.6 DSU, the issue of impleme ntation 
shall remain on the DSB's Agenda until the issue was resolved. In the "US — Offset Act (Byrd 
Amendment)" dispute (DS217) , the EU did not agree with the US assertion that it ha d implemented 
the DSB 's recommendations and rulings. This mean t that the matter remain ed unresolved for the 
purposes of Article 21.6 DSU. If the U nited States did not agree that the matter remain ed 
unresolved, nothing prevent ed the United States from seeking a multilateral determination through 
a compliance procedure, asking fo r a confirmation of its assertion that the Byrd Amendment measure 
had been repealed in line with the WTO findings, just like the EU was doing in th is dispute . 
3.4.  The DSB took note of the statements.  
4  STATEMENT BY THE UNI TED STATES ON SYSTEMIC CONCERNS REG ARDING THE 
COMPENSATION OF APPE LLATE BODY MEMBERS  
4.1.  The Chairman  said that t his item was on the Agenda of the present meeting at the request of 
the United States . He then invite d the representative of th e United States to speak.  
4.2.  The representative of  the United States  said that t he United States had placed this item on the 
DSB's Agenda to discuss an issue of systemic importance: the compensation structure for Appellate 
Body members.  The United States also wish ed to draw attention to the compensation that ha d been 
provided in the past to former Appellate Body members who continue d to decide appeals past the 
end of their terms under the so -called Rule 15. As Members consider ed why the Appellate Body ha d 
felt free to depart from the clear rules agreed upon by Members, certain structural features, such as 
this one, m ight be relevant. At the outset, the United States wished to be clear: the issue raised by 
the United States  at the present m eeting  did not concern any particular Appellate Body member or 
former Appellate Body member. The illustrative figures in the present statement were historical and 
not intended to reflect the conduct of current Appellate Body members. Rather, the US intenti on 
was to further Members ' understanding of the compensation structure as a general matter, and to 
consider the possible consequences of that structure. The United States ha d sought from the WTO 
Secretariat a deeper understanding of the compensation arrang ement and practices. An Appellate 
Body member 's compensation consist ed of two primary elements. First, a person serving on the 
Appellate Body receive d a monthly retainer fee. The purpose of the retainer fee was to ensure that 
persons c ould be available at all times, despite the part -time nature of the employment. In 1995, 
WTO Members had considered a retainer fee of CHF 7,000 per month to be appropriate. In 2019, 
Appellate Body members receive d a retainer fee plus a monthly administrative fee that total led 
approximately CHF 9,415 per month.  These fees produce d an annual income of nearly CHF 113,000. 
The United States had  learned that, in practice, ex -Appellate Body members continuing to decide 
appeals past the end of their terms also received the retainer fe e. Thus, so long as any appeal to 
which they were assigned remain ed active, an ex -member receive d CHF 9,415 per month.  The 
second element was a daily working fee. In addition to the monthly retainer, Appellate Body 
members receive d a daily fee based on the number of days worked. Payment of this fee was not 
subject to regular reporting requirements to WTO Members, for example, through the Budget WT/DSB/M/43 7 
 
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Committee. In 2019, Appellate Body and ex -Appellate Body members working on appeals recei ved 
a fee of CHF 783 per day worked. Looking at the yearly averages over the past four years, Appellate 
Body members ha d received, on average, a working fee that range d from nearly CHF 12,000 to 
more than CHF 15,000 per month . This would mean that Appellat e Body members had collected the 
daily fee for nearly every working day every month. Together with the monthly retainer fee, these 
two elements alone c ould result in annual compensation of approximately CHF 300,000 for an 
Appellate Body member. The same was true for ex -Appellate Body members, depending on their 
level of activity.  The value of this compensation was even higher when tax benefits were considered. 
For purposes of comparison, the United States underst ood that this compensation was significantly 
more than the annual salary of a WTO Deputy Director -General. Of course, a Deputy Director -
General was a full-time position, while serving as an Appellate Body member was, by design, a part -
time role. In addition to a monthly retainer and daily fees, Appel late Body members receive d a per 
diem of CHF 374 per day for meals and lodging while in Geneva. As part of the per diem 
arrangement, Appellate Body members ha d the option to receive CHF 3 ,000 per month for rent 
payments. In such cases, the member still rec eived a per diem allowance for meals of CHF 150 per 
day. It was the US understanding that Appellate Body members ha d made use of this rental -
reimbursement option. By doing so, the annual payment to Appellate Body members increase d by 
CHF 36,000, plus the additional meal allowance of CHF 150 per day. The United States underst ood 
that the average monthly per diem payment for each Appellate Body member ha d routinely exceeded 
CHF 4 ,000 despite, on average in recent years, only eight days of hearings per year fo r each 
member. The United States did not think it reasonable for an individual to be provided a year -round 
apartment in Geneva, at WTO Member s' expense, when that individual 's duties require d him or her 
to be in Geneva perhaps a dozen days per year. In add ition to compensation and per diems, airline 
tickets were paid for by the WTO. The United States underst ood the expenditure for airline tickets 
had typically exceeded about CHF  5,000 per Appellate Body member per month.  Taken together, 
the amount of compensation and other payments realized per member ha d remained steady and at 
a high level – well in excess of CHF 300,000 for part -time employment. The number of reports 
circulated over recent years ha d remained steady – about five to six reports per yea r.  
4.3.  The United States said that, d uring this time, to assist in the preparation of these five or six 
reports, the Appellate Body ha d received significant legal and administrative support. Currently , the 
Appellate Body Secretariat consist ed of approximately  20 professional staff with a budget of over 
CHF 7 million, of which roughly CHF 4.3 million contribute d to staffing resources. There c ould be no 
question that Appellate Body members were well resourced and supported. Although the United 
States thought  it unlikely that any WTO Member had anticipated that persons on the Appellate Body 
would claim to be working on WTO disputes essentially every working day of the year, Members  had 
agreed to this compensation structure. The United States had done  so, however, based on the 
understanding that the Appellate Body would respect the rules as set out in the DSU. Those rules 
include d the requirement that appellate reports be issued in 60  days or, exceptionally, 90 days, and 
the requirement that WTO Members – and not th e Appellate Body itself – appoint ed Appellate Body 
members. These rules were no longer being respected. The United States would question whether 
this approach to compensation create d the appropriate incentive. Under this system, the more time 
spent on an a ppeal mean t higher compensation. An appeal that extend ed beyond the 90 -day 
deadline m ight benefit Appellate Body members in a way that strict adherence to that deadline would 
not. The benefit realized m ight be even more substantial for an ex -Appellate Body member who 
would not  have otherwise receive d the monthly retainer for the duration of th e appeal. The monthly 
retainer had been intended to compensate persons for making themselves available to hear an 
appeal on short notice. However, this did not apply to an ex -Appellate Body member, who even 
under the so -called Rule 15 , could not be assigne d to any new appeals. Therefore, the not -previously 
disclosed practice of continuing to pay a monthly retainer fee to persons past the end of their DSB -
approved terms ha d significant financial implications. Indeed, were an ex -Appellate Body member 
to conti nue to work on an appeal for a year past the end of his or her term, the financial implication 
would be to receive over CHF  100,000 in additional compensation. A system that provide d a financial 
reward for violating DSU rules and prolonging the duration of  an appeal would appear inconsistent 
with the objective behind the DSU rule of providing for the prompt resolution of disputes. The United 
States, therefore, asked whether the current structure create d the correct incentive, or a negative 
one. The United S tates also asked whether this structure encourage d prolonged appeals at the 
expense of clear WTO rules . Without debate or effective oversight, the United States asked whether 
WTO Members had acquiesced in a compensation structure that undermine d, rather th an promote d, 
the prompt resolution of a dispute . As part of this discussion, the United States affirm ed its strong 
commitment to the independence of adjudicators, including the Appellate Body. As reflected in the 
Rules of Conduct, Appellate Body members fu lfilled their responsibility to act independently by 
serving in their individual capacity, and by avoiding any conflicts of interest.  The United States also WT/DSB/M/43 7 
 
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support ed institutional accountability. The United States did not believe that "independence " and 
"accountability " were mutually exclusive. Members ha d a collective responsibility to ensure 
accountability, while respecting the independence of WTO adjudicators. Understanding and 
overseeing the compensation of adjudicators was therefore an important responsibility for WTO 
Members in administering and ensur ing the proper functioning of the dispute settlement system. It 
was the hope of the  United States  that Members w ould reflect further on the questions raised in t he 
present  statement. The United States looked forward to continued discussion on this importan t issue.  
4.4.  The representative of  Canada  said that his country wished to thank the United States for raising 
these questions and for furthering Members' understanding of these issues. With respect to financial 
as well as other WTO institutional matters, Canad a support ed transparency and good governance. 
Canada noted the importance of taking into account all relevant factors when comparing 
compensation.  
4.5.  The representative of the European Union  said that his delegation wished to thank the United 
States for its intervention. As a preliminary point, the EU wished to state the obvious: a "systemic " 
discussion on the remuneration of Appellate Body members could only be fruitful if there was indeed 
a functioning Appellate Body. The EU , therefore , hoped that the DSB w ould be able to finally agree 
to the proposal to launch the AB selection processes to fill the vacancies in the Appellate Body. The 
EU was open to discussing the remuneration structure that  would apply to a newly composed 
Appellate Body and look ed forward to proposals from Members raising systemic concerns. Regarding 
the current remuneration structure, the EU recall ed that this structure and specific amounts ha d 
been decided by the WTO Membe rship itself. The basic principles relating to the "[c]onditions of 
employment of [Appellate Body] members ", including the remuneration structure, had been 
approved by the DSB in its decision contained in document WT/DSB/1, circulated on 19 June 1995. 
In 1995, the DSB  had considered, in particular, that "[t]he contractual basis of members of the 
Appellate Body should reflect the overriding concern that candidates are of a high enough calibre to 
ensure the integrity and authority of decisions taken by the A ppellate Body ". Given the part -time 
nature of employment of Appellate Body members, the DSB  had decided that : "[t]he requirement 
that high -calibre members be available at all times could be met, on a flexible basis, by offering 
Appellate Body members contr acts based on a monthly retainer plus a fee for actual days worked ". 
Accordingly, it had been  decided that "the retainer should be set at a minimum of [CHF] 7,000 per 
month, plus a fully -adequate daily fee, travel expenses and a per diem. The actual amount s should 
be set on the basis of further research on current rates for equivalent services under similar 
conditions ". The daily fee had been initially set at  CHF 600. Since 1995, the level of remuneration 
had been updated by the WTO Membership several times . As from 2011, the retainer ha d been fixed 
at CHF 9,085 and the daily fee at CHF 783. This mean t that, between 1995 and now, these sums 
had been increased by approximately 30 percent , while the basic structure linked to the partial 
employment ha d remained  the same. It was also worth recalling that Appellate Body members were 
not entitled to health care and retirement benefits available to WTO staff. The EU believed that  the 
overriding concern , i.e. that the employment conditions of Appellate Body members had to be such 
so as to ensure that those members were of a high enough calibre to guarantee  the integrity and 
authority of decisions taken by the Appellate Body , remained  valid. The remuneration should indeed 
be such as to attract the best candidates and ensure their independence and impartiality. Within 
those parameters, one could imagine different remuneration structures and the EU remained open 
to discussing proposals th at the United States might wish to formulate on this issue. The EU wished 
to point out that the current remuneration structure was the result of the fact that, de jure , the 
position of an AB member was a part -time job and , therefore , their remuneration dep ended, in part, 
on their workload. This m ight lead to situations where Appellate Body members receive d substantial 
amounts if their workload was particularly high. One alternative, already foreshadowed in the 
WT/DSB/1 decision of 1995, would be to move to a full -time employment for Appellate Body 
members. The EU underst ood that the U nited States had also been supportive in the past of a move 
towards a full -time employment of Appellate Body members. The U nited States had made some 
points relating to the remu neration currently received by the remaining Appellate Body members, 
and also regarding the remuneration under Rule 15. While the U nited States had argued that these 
concerns were " systemic ", it was clear that they ha d been triggered by the very specific s ituation in 
which the Appellate Body  currently  found itself , and this had been the case for the past two years, 
due to the limited number of AB members remaining, as a result of the blockage of the AB selection 
processes . With more workload per member, it was not surprising that the amount per capita in 
daily fees was higher. The EU would , indeed , expect the remaining Appellate Body members to fully 
invest in the disposition of appeals. The fact that they work ed longer ho urs, even though their work 
was officially part -time, deserved  commendation  rather than criticism. Also, with regard to Rule 15, 
the Appellate Body ha d been in a very specific situation during  the past two years during which , WT/DSB/M/43 7 
 
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because of the backlog  regardi ng the hearing of disputes which had been  created by the blockage 
of the AB selection processes , out-going members had to continue working full -time, possibly also 
foregoing other employment opportunities. To conclude, the EU wished to reiterate that the it was 
open to having a systemic discussion on the remuneration of Appellate Body members and look ed 
forward to proposals that Members m ight wish to formulate in that regard. Such a discussion could 
obviously only bear fruit if there was an operational Appe llate Body.  
4.6.  The representative of Australia  said that her country wished to thank the U nited States for 
raising this systemic issue. Australia believed  that budget oversight, accountability and transparency 
were important matters for the WTO, including in respect of compensation for Appellate Body 
members. It was important for all  WTO Members who were fully invested in the system to pay close 
attention t o these issues. In this regard, Australia would welcome further discussion s on the 
information outlined by the United States at the present meeting  and would appreciate further clarity 
from the Secretariat on the specific issues raised. Australia was particularly concerned to ensure 
that the  DSB's oversight role was properly maintained . Australia support ed a model of compensation 
and entitlements for Appellate Body members that was adequate and appropriate to reflect the 
nature and scope of their important work.  
4.7.  The representative of Korea  said that Korea wished to thank the United States for its statement 
and t ook note of the concerns expressed. Korea believe d that the compensation of adjudicators, 
including that of AB members, was an important issue which was closely related to the efficiency of 
the system as a whole, both in terms of resource management and the quality of the service that 
the system provide d to Members. Korea looked forward to in -depth discussion s with the aim of 
reaching a practical solution in the near future.  
4.8.  The representative of Uruguay  said that his country wished to thank the United States for 
introducing this item into the Agenda which , along with previous statements  it had made  in other 
fora, shed light on the systemic concerns that the United States  had concerning the functioning of 
the A ppellate Body. Uruguay agreed that the manner in which  economic incentives were structured 
could  have an important impact on the behaviour of individuals . Nevertheless, in the absence of 
objective information , Uruguay did not think it would be prudent to draw a correlation  between the 
circul ation of AB reports beyond 90 days and the w ay in which compensation for AB members was 
structured. Other factors , such as the complexity of appeals , the lack of human resources  and delays 
due to the translation  of reports , among others, could also contribut e to such delays. Should there 
be evidence  of a statistic ally significant correlation in this regard , Uruguay would be ready to consider 
any proposals related to the compensation structure for AB members for transparency  purposes.  
Uruguay would also be ready consider the creation of incentives that would enable  AB members to 
comply with the requirements set out in the  DSU. 
4.9.  The representative of China  said that his country wished to thank the United States for placing 
this item on th e DSB's Agenda and note d that this was the first time that a WTO Member raise d this 
issue in a DSB meeting. Without prejudice to its later position, China wished to make the following 
observations. First, according to Article 17.8 of the DSU, "the expenses of persons serving on the 
Appellate Body, including travel and subsistence allowance, shall be met from the WTO Budget ". 
Therefore, there was a clear and compulsory obligation for WTO Members to meet this requirement. 
Article 17.8 of the DSU also provide d that this obligation was " in accordance with criteria to be 
adopted by the General Council, based on recommendations of the Committee on Budget, Finance 
and Administration ". In other words, such criteria should be adopted by the General Council, n ot by 
the DSB; and recommendations regarding these criteria should be made by the CBFA  not the DSB. 
Therefore, i t appear ed that the DSB was not an appropriate forum to discuss the issue  of 
compensation of AB members . However, once the criteria were adopted , there was a clear obligation 
that the expenses of the Appellate Body be met from the WTO budget. Any obstruction with regard 
to this automatic obligation constituted  a violation of the WTO rules. Second, the compensation 
scheme for Appellate Body members  had been adopted by WTO Members in DSB Decision WT/DSB/1 
on the "Establishment of the Appellate Body " on 10  February  1995.2 This Decision provide d that the 
amount of the retainer  and per diem  scheme "would have to be large enough to offset a member 's 
opportunity cost of work foregone because of potential conflicts of interest " and "the compensation 
should be high enough to provide an incentive for a member not to take on work which might create 
a conflict of interest ". Simply put, there was a clear int ention from WTO Members to provide a market 
competitive compensation to Appellate Body members in order to attract " high-calibre members 
[who would] be available at all times ". Third, the compensation of Appellate Body members was 
 
2 WT/DSB/1(19 June 1995).  WT/DSB/M/43 7 
 
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significantly lower than that of their peers in other international judicial bodies. When the Appellate 
Body was composed of seven members, the annual remuneration of an Appellate Body member was 
estimated at about CHF 220,000 (US $ 222,700) which comprise d a monthly retainer fee 
(CHF 9,031), a monthly administrative fee (CHF 330) as well as per diem  fees (which amounted to 
CHF 8,947 on average  on a monthly basis ).3 There was no pension or other benefits applicable to 
Appellate Body members. However , their peers from the International Court of Justice and the 
International Criminal Court , for instance,  earned higher compensation , which respectively 
amounted to US$ 245,0004 and US$ 240,0005 respectively not including various allowance s and 
pension. When compared with other adjudicators providing similar service s such as commercial and 
investment arbitrat ors, the remuneration of Appellate Body members was significantly low er. An 
ICSID arbitrator was " entitled to receive a fee of US $ 3,000 per day of meetings or other work 
performed in connection with the proceedings "6 and the median duration of such ICSID arbitration 
was about 1266 days .7 Fourth, the WTO was a Member -driven institu tion, which was in the best 
interest of the entire Membership. In that sense, the compensation of Appellate Body members , just 
like other budget issues could and should be subject to vigorous oversight by WTO Members. 
However, such oversight need ed to be conducted based on objective and reasonable assessments 
of relevant facts. They should by no means be perceived or used as a leverage to unduly influence 
the Appellate Body whose independence and impartiality were valuable but very susceptible  to this 
kind of interference. Finally, China was open to discuss the issue  raised by the United States at the 
present meeting  with the U nited States and the entire WTO Members hip. WTO Members could and 
should find a solution on th is issue very quickly. Given th e essential role of the Appellate Body, the 
WTO could and should provide a reasonable and fair compensation to those persons servicing the 
Appellate Body. The compensation should be good enough to ensure the proper function ing of the 
Appellate Body and rea sonable enough to compensate their professional contributions and to 
compete with other international adjudication bod ies. Such compensation should also be fair enough 
to ensure the independence and accountability of Appellate Body members.  
4.10.   The representat ive of Mexico  said that his country had listened carefully to the statement 
made by the United States and wished to thank the United States for sharing th is information. Mexico 
had always supported enhance d transparency and good governance of the WTO . Mexico noted that 
the United States had pointed out to  a link between th e issue of AB compensation  and its concerns 
with respect to Rule 15 of the Working Procedures for Appellate Review and the 90 ‑day period set 
out in  Article 17.5 of the DSU. Mexico, like other delegations, fail ed to see a clear correlation in this 
regard . It was important to remember that the US concerns were currently being discussed in the 
General Council's informal process  on AB matters , in which more than 80 Members ha d submitted 
12 proposals to address such concerns in an effort  to find a solution. In the course of the informal 
process on AB matters, Amb . Walker presented the points of convergence regarding the 12 
proposals. Mexico underlined that the US  concerns had been discussed extensively  in the informal 
process. First, Mexico wished to point out that the figures quoted by the United States should not 
come as a surprise given the fact that the Appellate Body ha d not been composed of seven Members 
since 2018. The remaining Members ha d to review a greater number of appeals, which  in turn  
increase d their compensation and justified the need for  application of Rule 15. Furthermore, it 
seem ed unreason able to discuss  concern s about the consequence  of the problem  rather than its 
cause. The budget for the Appellate Body, in particular for the compensation of its members, had 
been adopted by all Members upon the creation of the WTO in 1995. In the same way , Members, in 
the CBFA had subsequently approved by consensus  the amendment to the Appellate Body budget, 
which had included an increase in compensation in 2007. Mexico , therefore , believe d that it would 
 
3 According to the Annex 7 of the 2018 Appellate Body Report (WT/AB/29), the average number of appeals 
notified to the DSB from 2014 to 2018 was close to 10 per year. China therefore chose to take the year of 2005 
(10 appeals) as the benchmark to simulate the work days paid to Appellate Body members. According to a 
document on the dispute settlement expenditure s (WT/BFA/W/228) prepared by  the CBFA in 2011, the total 
work days  paid to Appellate Body members in 2005 were 966 days which amounted to 11.5 days per member 
per month. Given that the work day fee was set at CHF 778, the monthly compensation of an Appellate Body 
member derived from the work day fee was, therefore , of CHF 8,947. 
4 Report of the Secretary -General, Conditions of service and compensation for officials other than 
Secretariat officials: members of the International Court of Justice and President and judges of the International 
Residual Mechanism for Criminal T ribunals, Seventy -fourth session of the UN General Assembly 
(18 September  2019), A/74/354*, at p .5. 
5 Report of the Committee on Budget and Finance on the work of its twenty -ninth session, Sixteenth 
session of International Criminal Court Assembly of State s Parties (3 November 2017), ICC -ASP/16/15, at p .13. 
6 https://icsid.worldbank.org/en/Pages/icsiddocs/Schedule -of-Fees.aspx (last visit on 
18 November  2019).  
7 Jeffery Commission, The duration and costs of ICSID and UNCITRAL investment treaty arbitrations,  
Funding in Focus Content Series (2016), at p .9. WT/DSB/M/43 7 
 
- 16 - 
 
be positive and constructive for any Member that exp resse d concerns to also provide pragmatic 
solutions . Now more than ever it was necessary for Members to focus their efforts on overcom ing 
the challenges  that paralyzed  the current dispute settlement system, in particular  the functioning of 
the Appellate Body . The Appellate Body  only had three members out of seven and possibly only one 
if there was no consensus at the present meeting  on the proposal under  the next Agenda item. This  
situation  require d urgent and immediate a ttention  of all Members.  
4.11.   The DSB took note of the statements.  
5  APPELLATE BODY APPOI NTMENTS: PROPOSAL BY  ANGOLA; ARGENTINA; AUSTRALIA; 
BENIN; PLURINATIONAL  STATE OF BOLIVIA; B OTSWANA; BRAZIL; BUR KINA FASO; 
BURUNDI; CABO VERDE;  CAMEROON; CANADA; C ENTRAL AFRIC AN REPUBLIC; CHAD; 
CHILE; CHINA; COLOMB IA; CONGO; COSTA RIC A; CÔTE  D'IVOIRE; CU BA; DEMOCRATIC 
REPUBLIC OF CONGO; D JIBOUTI; DOMINICAN R EPUBLIC; ECUADOR; EG YPT; EL 
SALVADOR; ESWATINI; THE EUROPEAN UNION; GABON; THE GAMBIA; G HANA; 
GUATEMALA; GUINEA; G UINEA -BISSAU; HONDURAS; HONG  KONG, CHINA; ICELAN D; 
INDIA; INDONESIA; IS RAEL; KAZAKHSTAN; KE NYA; REPUBLIC OF KOR EA; LESOTHO; 
LIECHTENSTEIN; MADAG ASCAR; MALAWI; MALAY SIA; MALI; MAURITANI A; MAURITIUS; 
MEXICO; MOROCCO; MOZ AMBIQUE; NAMIBIA; NE W ZEALAND; NICARAGUA ; NIGE R; 
NIGERIA; NORTH MACED ONIA; NORWAY; PAKIST AN; PANAMA; PARAGUAY ; PERU; QATAR; 
RUSSIAN FEDERATION; RWANDA; SENEGAL; SEY CHELLES; SIERRA LEON E; SINGAPORE; 
SOUTH AFRICA; SWITZE RLAND; THE SEPARATE CUSTOMS TERRITORY OF  TAIWAN, 
PENGHU, KINMEN AND M ATSU; TANZANIA;  THAILAND; TOGO; TUN ISIA; TURKEY; 
UGANDA; UKRAINE; URU GUAY; THE BOLIVARIAN  REPUBLIC OF VENEZUE LA; VIET NAM; 
ZAMBIA AND ZIMBABWE (WT/DSB/W/609/REV.14 ) 
5.1.  The Chairman  said that t his item was on the Agenda of the present meeting at the request of 
Mexico, on behalf of a number of delegations. He drew attention to the proposal contained in 
document WT/DSB/W/609/Rev.14 . He then invite d the representative of Mexico to speak.  
5.2.  The representative of the Mexico , speaking on behalf  of the co -sponsors of the joint proposal 
contained in document WT/DSB/W/609/Rev.14, said that the delegations in question had agreed to 
submit the joint proposal dated 19  September 2019 to launch the AB selection processes. H is 
delegation, on behalf of th ese 116 Members, wished to make the following statement. The increasing 
and considerable number of Members submitting this joint proposal reflected a common concern 
with the current situation in the Appellate Body that was seriously affecting its functioni ng and the 
overall dispute settlement system against the best interest of its Members. WTO Members had a 
responsibility to safeguard and preserve the Appellate Body, the dispute settlement system and the 
multilateral trading system. Thus, it was the Member s' duty to launch the AB selection processes, 
as set out in the joint proposal before the DSB at the present meeting. This proposal sought to: 
(i) start six selection processes: one process to replace Mr. Ricardo Ramírez -Hernández, whose 
second term expire d on 30 June 2017; a second process to fill the vacancy resulting from the 
resignation of Mr. Hyun Chong Kim with effect from 1 August 2017; a third process to replace 
Mr. Peter Van den Bossche, whose second term expired on 11 December 2017; a fourth process to 
replace Mr. Shree Baboo Chekitan Servansing, whose four -year term of office expired on 
30 September 2018; a fifth process to replace Mr. Ujal Singh Bhatia, whose seco nd term w ould 
expire on 10 December 2019; and a sixth process to replace Mr. Thomas R. Graham  whose second 
term would  expire on  10 December 2019; (ii) to establish a Selection Committee; (iii) to set a 
deadline of 30 days for the submission of candidates ; and (iv) to request that the Selection 
Committee issue its recommendation within 60 days after the deadline for nominations of 
candidates. The proponents were flexible regarding  the deadlines for the AB selection processes , but 
believed that Members should  consider the urgency of the situation. Mexico continued to urge all 
Members to support this proposal in the interest of the multilateral trading system and the dispute 
settlement system.  
5.3.  The representative of  the European Union  said that his delegation wi shed to refer to its 
statements made on this matter at previous DSB meetings , starting in February 2017. As the EU 
had previously stated  many times, WTO Members ha d a shared responsibility to resolve this issue 
as soon as possible, and to fill the outstand ing vacancies as required by Article 17.2 of the DSU. 
Mindful of this responsibility, the EU and others had submitted concrete proposals to the General 
Council in order to address the concerns raised by the U nited States and to unblock the AB selection 
processes . The EU wished to thank all Members who had engaged in the se discussions and those 
who had made  other proposals in the informal process  on AB matters . Those discussions had been WT/DSB/M/43 7 
 
- 17 - 
 
fruitful. As the EU had said, the EU  welcome d the report and the draft General Council decision 
presented by Amb . Walker to the General Council on 15 October 2019. The EU considered that this 
was a sound and balanced way to move the process forward in order to meet its objective which 
was to unblock the AB appointments . In this respect, the EU wished to thank Amb . Walker for his 
efforts  and his good work . This was the 14th time that this proposal feature d on the DSB's Agenda 
and, despite Members' best efforts , the EU was under no illusion tha t the AB selection processes 
would not be launched at the present meeting . The present meeting was also the last regular DSB 
meeting before 10 December 2019 , when the terms of office of two of the three remaining AB 
members w ould expire. At this juncture, the EU wished to convey a clear message of determination. 
The EU was determined to ensure that the dispute settlement process operate d as intended by the 
WTO Agreements, which include d an independent and impartial app ellate  review of legal issues 
contained in the panel reports. To that end, and as a matter of priority, the EU would continue to 
support all efforts leading to the unblocking of the AB selection p rocesses , which had to continue 
until the situation was resolved. Pending such resolution, the EU was also determined to preserve 
its rights , as enshrined in the WTO Agreements, notably the right to appe llate review . The EU would 
also continue to prepar e contingency measures that would apply in the event where the AB selection 
processes  remain ed blocked. The EU wished to thank all Members that ha d co-sponsored the 
proposal to launch the AB selection processes and invite d all other Members to endorse this pr oposal.  
5.4.  The representative of  Ecuador , speaking on behalf of the Group of Latin American and 
Caribbean countries (GRULAC) that were Members of the WTO,  said that  the countries in question  
wished to reiterate their serious concern s about the current impasse in  the AB selection process es. 
The Appell ate Body was a key component of the multilateral trading system. Ecuador wished  to 
thank Amb. Walker for his efforts  in the informal process  on AB matters , in particular with regard to 
the draft decision of the General Council  contained  in document J OB/GC/222, which had been  
presented to Members at the  15 October  2019 GC meeting . Nonetheless, Members had still not seen 
any progress . Many Members ha d support ed Mexico's  proposal contained in document 
WT/DSB/W/609/ Rev.14. Th e group of co -sponsors had listened to the concerns about the 
functioning of the Appellate Body  and had also participated constructively in discussions on these 
concerns. Nonetheless, Ecuador believed that the existence of such concerns did not justify the 
impasse in  the AB selection processes . Pursuant to  Article 1 7.2 of the DSU, vacancies had to be filled 
as they ar ose. This was an obligation of WTO Members . Thus, it was time for the entire Membership  
to find a constructive and definitive solution  to this matter.  Otherwise , the Appellate Body would 
soon cease to be functional . Ecuador reaffirmed its support for the informal process on AB matters 
and its willingness to continue to contribute t o the efforts of Members that sought, as a matter of 
priority, to bring about the unblocking of the AB selection processes.  
5.5.  The representative of  Norway  said that  the 10 December  2019 deadline was fast approaching , 
and that Members had not yet filled the v acancies in the Appellate Body. This mean t that the 
Appellate Body would be unable to fulfil its functions in the very near future. It was hard to believe 
that p ronouncing these words was necessary , 25 years after Members had signed the historic 
Marrakesh Agreement , which had establish ed the WTO and an effective and successful dispute 
settlement mechanism. As all Members knew, this situation could have been avoided. It was not the 
result of some inescapable or sudden complication. It was brought u pon Members intentionally  but 
regrettably, without any clear direction. What Members needed now was clarity and action. Members 
might disagree on the ideal functioning of the Appellate Body, but Norway was not afraid of hearing 
arguments. That was what coo peration was about. In conclusion, Norway wished to take this 
opportunity to ask that the United States unblock the AB selection processes. Norway also asked 
that the United States  present clearly what it might see as a possible way forward and as po tentia l 
and preferred solutions . Norway stood ready to discuss  ways forward and possible outcomes that 
could end the current impasse.  
5.6.  The representative of  Guatemala  said that, on 22 November 2017, exactly two years ago, a 
group of 50 Members, including Guatemala, had formally proposed to launch the AB selection 
process es after more than a year of impasse. At the present meeting , 116 Members , more than two 
thirds of the Membership , were co-sponsoring th e proposal  contain ed in document 
WT/DSB/W/609/Rev.14 . No Member except for the United States was opposing the launch of the 
AB selection process es. For nearly three years, Members ha d been focusing on understanding US 
concerns and proposing solutions to address them. The United States had had the attention of all 
Members, civil society, practitioners, academics and stakeholders from around the world. Delegates, 
Ambassadors  and Senior officials ha d been meeting in different configurations to discuss ways to 
address US concerns. Hundreds of papers, workshops, seminars  and roundtables had been organized 
around the world to discuss the current situation. An informal process on AB matters fa cilitated by WT/DSB/M/43 7 
 
- 18 - 
 
Amb. Walker  was ongoing.  Twelve proposals ha d been tabled by several Members with a view to 
finding pragmatic solutions to US concerns. The informal process  had conclu ded with a draft decision 
(proposed by Amb. Walker as Facilitator) to be ado pted by the General Council . This proposed draft 
decision  had been aimed at re solving the US concerns. Unfortunately, every idea, proposal  and effort 
had been met  with silence  from the United States, a repetition of US concerns  or the formulation of 
additional concerns . Over nearly three years, the United States ha d not put forward  a single proposal 
to resolve its concerns. Neither ha d the United States expressed any sympathy  with any of the 
proposals made by Members. On the contrary, the United States continue d to voice additional  so-
called "systemic concerns ". A potential solution seem ed to move  even further away. The most recent  
US concern involved  the WTO budget and put at risk the functioning of the WTO Secretariat. In less 
than 20  days, Members would witness the end of an institution that ha d benefited the entire  
Membership , including the United States. The Appellate Body and the dispute settlement system , 
more generally, ha d been fundamental in preserving the rules -based multilateral trading system. 
Guatemala believe d that as of 10 December  2019 Members  should put US concerns aside and start 
discussing what Members need ed to do to as a matter of urgency in order to address  their concerns. 
For instance, Members needed to ensure that, while they did not have a functional Appellate Body, 
they would preserve the binding nature of the dispute settlement system. Members would also need 
to ensure that they could still have recourse t o a provisional mechanism for the review of issues of 
law covered in panel reports and legal interpretations developed by panels. Guatemala, as the great 
majority of Members, could not afford to lose a system based  on the rule of law and due process. 
The r ule of law and due process were particularly important for developing countries and least 
developed countries. Guatemala remain ed committed to tak ing positive steps to have a fully 
functional dispute settlement system, including a standing Appellate Body.  
5.7.  The representative of  Canada  said that his country support ed the statement made by Mexico, 
and share d the concerns expressed by many Members. Canada took  note that there were now 116 
WTO Members calling for the launch of the AB selection processes. Canada invite d WTO Members 
that ha d not yet sponsored the proposal contained in document WT/DSB/W/609/Rev.14 to consider 
joining the 116 Members calling for the launch of the AB selection processes. The critical mass of 
WTO Members behind this proposal was a clea r testimony to the importance that Members 
collectively accord ed to a fully functioning Appellate Body as an integral part of the dispute 
settlement system. Canada remain ed committed to working with other interested Members, 
including the United States, wi th a view to addressing concerns and undertaking the AB selection 
processes expeditiously. Canada expressed deep regret  that the DSB ha d not complied with its 
obligation under Article 17.2 of the DSU to appoint Appellate Body members to fill the vacancies.  
The text of the DSU was clear: "[v]acancies shall be filled as they arise". This requirement d id not 
provide for any exception or justification not to fill the vacancies as they ar ose. 
5.8.  The representative of  the United States  thank ed the Chairman  for the continued work on these 
issues. As the United States had explained at prior DSB meetings, the United States was not in a 
position to support the proposed decision. The systemic concerns that the United States had 
identified remain ed unaddressed. Th e United States recognize d the work of Amb. Walker as  
Facilitator  in the informal process on AB matters , including the report provided to Members at the 
15 October 2019 General Council meeting. As the United States had explained, the fundamental 
problem was that the Appellate Body was not respecting the current, clear language of the DSU. 
Members c ould not  find meaningful solutions to this problem without understanding how they had 
arrived at this point.  Without an accurate diagnosis, Members could not assess the likely 
effectiveness of any potential solution. While the Facilitator 's Report suggest ed agreement among 
some Members that the DSU impose d clear limitations on the Appellate Body, the United States  
failed to see convergence on how to ensure that tho se limitations were respected going forward, and 
what were the consequences for continued failure to adhere to those limitations. If WTO Members 
say that they support ed a rules -based trading system, the representative of the United States asked 
how Members could permit the WTO Appellate Body to break the rules Members had agreed to in 
1995. The US view across multiple US Administrations ha d been clear and consistent: when the 
Appellate Body overreache d and abuse d the autho rity it had been given within the dispute settlement 
system, it undermine d the legitimacy of the system and damage d the interests of all WTO Members 
who care d about having the agreements respected as they had been negotiated and agreed. The 
United States would continue to insist that WTO rules be followed by the WTO dispute settlement 
system, and would continue its efforts and discussions with Members and with the Chairman to seek 
a solution on these important issues.  
5.9.  The representative of Korea  said that his country wished to thank Amb. Walker for his efforts 
as Facilitator  in the informal process  on AB matters  to help Members find a solution to the current WT/DSB/M/43 7 
 
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AB crisis. Korea wished to share its observation s on the current situation as well as how it planned 
to deal with future discussion s on this matter . The WTO dispute settlement system, including the 
Appellate Body, ha d served Members well during the past 24 years. Particularly, appellate review 
was a core fea ture of the WTO dispute settlement system , offering an opportunity to correct legal 
errors contained in panel reports and thereby playing an important role in assisting the DSB in the 
settle ment of disputes. A properly functioning Appellate Body was critical in providing security and 
predictability to the multilateral trading system. Like many other Members, Korea was very 
concerned with the stalemate faced by  Members . In particular, as the 10 December 2019 deadline  
loomed, Korea was increasingly worried th at Members might miss the opportunity to find a solution 
before permanent damage was inflicted  on the dispute settlement system. Korea sincerely hope d 
Members could collectively find pragmatic solutions in a timely manner , and Korea would spare no 
effort in participating in and contributing to these discussions with concrete ideas in due course.  
5.10.   The representative of  South Africa  said that the dispute settlement system played an 
important role  in a rules -based system. South Africa  wished to  be associate d with Members that 
called for the launch ing of the AB selection process es. The Appellate Body was critical for the 
enforcement of rights and obligations of Members. In a spirit of cooperation, Members needed to 
address the current impasse. Th e 10 December 2019 deadline loomed, and a dysfunctional Appellate 
Body would be a systemic problem for all Members . South Africa underst ood the concerns that had 
been raised by one Member and, in the spirit of working together, 12 proposals ha d been tabled by 
the Membership to address the se concern s. Areas of convergence ha d been identified by Amb. 
Walker as Facilitator of the informal process on AB matters  to reso lve these concerns . South Africa 
believe d that a rule s-based system depend ed on an independent, functional  and impartial Appellate 
Body, and that a two-stage system was important to a rules -based multilateral trading system.  
5.11.   The representative of  Thailand  said that his country, a s a co -sponsor  of the joint proposal 
contained in document WT/DSB/W/609/Rev.14 , appreciate d the on -going efforts of Mexico and the 
co-sponsors  of the joint proposal  to try to make progress towards filling the vacancies in the 
Appellate Body.  Thailand  regret ted that th is proposal had not been given effect. Such a failure 
undermine d the effective and smooth functioning of the dispute settlement system. Thailand 
consider ed that the informal process on AB matters conducted under the auspices of the General 
Council by Amb. Walker as Facilitator was an efficient and appropriate way to address Members' 
concerns and to clarify aspects related to the functioning of the dispute settlement system . The 
informal process had helped  maintain the principles and objectives of the rules -based multilateral 
trading system and had built trust among Members. Given the urgency of the matter, Thailand 
remain ed committed to working constructively with all Members to resolve the Appellate Body 
impasse as quickly as possible.  
5.12.   The representative of  Switzerland  said that, f or more than two years , her country , like many 
other Members, ha d voiced its concerns about the impasse concerning the A B selection processes . 
Switzerland  had consistently expressed regret that the DSB had not been in a position to launch the 
AB selection process es. Switzerland  had also consistently called to engage constructively in order to 
find solutions to the  current  impasse. The present DSB meeting was the last meeting  before the 
Appellate Body would in all likelihood  lose its quorum, on 10 December 2019. When the WTO was 
established, 25 years ago, its dispute settlement system – that is its two -level system, with a 
standing Appellate Body which could hear appeals regarding panel rulings – had been conceived as 
a central component of the multilateral tradin g system in that it provided it with  security and 
predictability. Switzerland  believed that , 25 years later, this statement enshrined in Article 3.2 of 
the DSU was still valid . More than principles, security and predictability also represent ed shared 
value s of the Membership , as demonstrated by the number of co -sponsors of the proposal  contained 
in document WT/DSB/W/609/Rev.14.  Switzerland believe d that the present situation was contrary 
to the long -term interests of all Members. Therefore, Switzerland urged, once again,  all Members to 
engage constructively in order to solve th e impasse regarding the AB selection processes without 
further delay. Switzerland wished to thank Amb. Walker for his efforts and proposals made as 
Facilitator in the informal process on AB matters under the auspices of the General Council. 
Switzerland remain ed strongly committed to continuing to work towards concrete solutions.  
5.13.   The representative of  China  said that his country  support ed the statement made by Mexico 
at the present meeting on behalf of 116 Members . This number represent ed 70.7% of the WTO 
Membership. China deeply regret ted that the US illegal blockage had, once again , frustrated the 
Members ' collective efforts to launch th e AB selection process es. Article 17.2 of the DSU c ould not  
be any clearer about the Members' legal obligation to fill the vacancies in the Appellate Body. Yet, 
the United States ha d shown little willingness to fulfil this obligation. In particular, its persistent lack WT/DSB/M/43 7 
 
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of constructive engagement in the informal process on AB matters had prevented any meaningful 
discussion s of various efforts made by WTO Members. Given the urgency of the mat ter, rather than 
asking why Members had come to this situation, it was much more important to discuss what 
concrete actions should be undertaken  in order  to overcome the current deadlock. The Appellate 
Body had gained its current prominence within  a relatively short time span . In the past 24 years, 27 
former and current AB members , through their shared dedication, wisdom and professionalism , had 
prove d that "there can be such a thing as the international rule of law in trade ".8 From its inception 
until , the Appellate Body ha d issued 155 reports9, and approximately 10 new appeals were expected 
to be notified to the DSB every year. Given t he success which had been attributed to the appellate 
review, the WTO dispute settlement system had eclipse d any other s imilar mechanism. 
Unfortunately, the Appellate Body had become a victim of its own success. Although it could be 
further improved on various fronts, "the transformation of the Appellate Body from 'crown jewel ' to 
a problem child in urgent need of reform in  the space of a few months has been as dramatic as it is 
mystifying ".10 It was deeply regrettable that, 19 days from the present meeting , this "glorious 
experiment with the rule of law in international relations "11 would come to an end. Without a 
functioning  Appellate Body, the entire system would be  sailing t hrough  uncharted water s. It was 
highly likely that the security and predictability  that Members ha d enjoyed for more than two decades 
would eventually vaporize. It was also highly likely that the dispute settlement system would 
increasingly be subject to power dynamics . The rest of the dispute settlement system would , 
eventually , also be adversely impac ted. On a broad er note , the Appellate Body crisis was the crisis 
of the rules -based multilateral trading system. What Members chose to do going forward would  
define the future of the rule of law in the context of international trade. Time was running out. 
Concrete and swift actions were needed in order to find a solution to the current situation . China 
renew ed its support to the informal process  on AB matters  and to Amb. Walker  for his  continue d 
efforts as its Facilitator. China stood ready to further deepe n the solution -orientated discussions in 
different configurations.  
5.14.   The representative of  Hong Kong, China  said that his delegation wished to refer to its 
statements made at previous DSB meetings . Hong Kong, China wished to reiterate its deep concern 
that the impasse over the AB selection processes was still unresolved. As the situation remain ed 
unchanged, the Appellate Body would not be able to hear new appeals, for an unspecified period of 
time after 10  December  2019. This would undermin e the dispute settlement system and pose d 
serious challenges to the multilateral trading system. About 70% of the WTO Membership  (116 
Members) had co-sponsored th e joint  proposal  contained in document WT/DSB/W/609/Rev.14  to 
try to stop th is crisis from hap pening. But, unfortunately, this was not enough. Hong Kong, China 
invite d all other Members to endorse  this joint proposal so as to protect the dispute settlement 
system. Hong Kong, China appreciate d the efforts made by various Members in the informal process  
on AB matters , under the auspices of the General Council, to address the concerns that had been 
raised by one Member with respect to the Appellate Body. However, Hong Kong, China emphasize d 
that the discussion on improving the DSU should not be a reason to delay the AB selection processes . 
It was not justifiable to attach preconditions to the launch ing of the  AB selection process es. His 
delegation  called on all Members to  resolve this matter witho ut further delay.  
5.15.   The representative of Australia  said that her country wished to refer to its previous statements 
made on this matter and wished to reiterate Australia's serious concerns regarding the DSB 's inability 
to commence the AB selection process es. Australia welcome d the recent progress in the General 
Council 's informal process on AB matters and welcome d the draft instrument for Members ' 
consideration as a positive step forward . Australia hoped it could lead to unblocking the AB selection 
process es. In this regard , Australia recogni zed the significant contributions of many Members to the 
discussions and the leadership of Amb . Walker  as Facilitator . However, Australia was clear-eyed 
about the hard work required for the rest of 2019 to address key concerns regarding the functioning 
of the Appellate Body . Australia was strongly committed to the work ahead and encourage d Members 
to continue solutions -focused, active engagement and to demonstrate the necessary flexibility to 
agree pragmatic solutions in the interests of all Members.  
 
8 James Bacchus, Not in clinical isolation, A History of Law and Lawyers in the GATT/WTO (2015), at 
p.516. 
9 https://www.wto.org/english/tratop_e/dispu_e/ab_reports_e.htm (last visit on 18 November 2019).  
10 Address by Ambassador Ujal Singh Bhatia on the launch of the WTO Appellate Body 's Report for 2018, 
https://www.wto.org/english/tratop_e/dispu_e/ab_report_launch_e.htm (last visit on 18 Novembe r 2019) . 
11 Farewell speech of Appellate Body member Peter Van d en Bossche, 
https://www.wto.org/english/tratop_e/dispu_e/farwellspeech_peter_van_den_bossche_e.htm (last visit on 
18 November 2019).  WT/DSB/M/43 7 
 
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5.16.   The representative of Singapore  said that his delegation reiterate d its serious systemic 
concerns on the persistent failure of Members to launch the AB selection process es. Singapore 
recalled that the Chairman  had emphasized, at the 15 October 2019 DSB meeting, that the time 
required to conduct a selection process was such that the Appellate Body would suffer a "technical 
dip" from 11 December  2019 onwards . The Chairman had also noted that there w as a number of 
appeals in the pipeline. It was indeed regrettable that , although this was the last regular DSB 
meeting before 11  December  2019, Members were still not in a position  to reach a consensus on the 
launching of the AB selection process es. This was  the case even as the number of appeals continue d 
to increase, with a new appeal that had just been filed three days ago. With only 18 days left before  
11 December  2019, Singapore called on all Members to continue engaging constructively and 
collaboratively to resolve the  current  impasse. Singapore remain ed committed to supporting Amb. 
Walker in his capacity as Facilitator in the informal process  on AB matters , and urge d all Members, 
especially the U nited States , to actively engage in finding concrete solutions. The AB selection 
process es should be allowed to proceed unconditionally in the meantime. Coincidentally, the date of 
the present meeting marked the second anniversary of the 22  November  2017 DSB meeting, when 
Singapore had joined the pioneer group of the 52 co -sponsors of the original joint proposal contained 
in document WT/DSB/W/609 . The joint proposal was now in its fourteenth  iteration.  Singapore 
wished to take this opportunity to express its deep appreciation  towards  the hard work accomplished 
by Mexico in leading this effort . The number of co -sponsors ha d grown to 116. This reflect ed the 
belief shared by the  vast majority of WTO Members that the curren t impasse had to be resolved.  
5.17.   The representative of New Zealand  said that his country wished to  reiterate its support for 
the co -sponsored proposal and wished to refer to its previous statements. As New Zealand had 
noted, with regret, at the 28 October 201 9 DSB meeting, the Appellate Body would inevitably 
experience what ha d been described as a "technical dip " due to the time that was required for any 
AB selection process to be completed. The present meeting was the last regular DSB meeting before 
such a " technical dip " would occur . New Zealand continue d to encourage all Members to engage 
constructively with a view to urgently addressing the situation.  
5.18.   The representative of Malaysia  said that  his country  support ed the statement made  by Mexico 
on behalf of the co -sponsors. Malaysia believe d in the primacy of the rules -based multilateral trading 
system. Should this system collapse, Members would be faced with the risk of sliding backwards in 
terms of global economic governance and this would undermine the credibility of the system. 
Malaysia , therefore, strongly support ed the expeditious unblocking of the AB selection processes . It 
was Malaysia's hope that the AB c ould continue to be part of a multilateral enforcement mechanism.  
5.19.   The rep resentative of Uruguay  said that 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.14,  
in the same way as Ecuador had in its statement made  on behalf of  GRULAC . Uruguay also wished 
to thank Amb . Walker for his efforts as Facilitator in the informal process  on AB matters. This informal 
process had  led to a concrete proposal deal ing with several of the concerns that had been raised on 
this matter in order t o overcome th e current situation. Uruguay believe d it was necessary  to launch 
the AB selection processes without further delay . Eighteen days remain ed before the AB would stop 
operating due to an insufficient number of  members. Looking b eyond the concerns related to  the 
functioning of the AB, and even though many of these concerns might  in fact be shared by many, 
Members  knew what the systemic consequences of a paralysis of the AB would be. The AB was one 
of the key components of the dispute settle ment system. It was the Members' collective 
responsibility to preserve the right to appellate review for disputing Members . Uruguay was very 
worried that Members would not be comply ing with WTO rules, both in letter and in spirit. Even 
worse , perhaps, was that there w ould be a legal vacuum or a breaking away from the pacta sunt 
servanda  principle . 
5.20.   The representative of India said that his country wished to refer to its previous statements on 
this matter and wished to reiterate its serious concerns regarding the DSB's inability to commence 
the AB selection processes. The WTO dispute settlement mechanism was an indispensable pillar of 
the multilateral trading system and the Appellate Body was essential to its proper func tioning. India 
had a significant  interest in a stable and predictable dispute settlement system within the WTO and 
was committed to the preservation of a functioning two -stage dispute settlement system. India 
deeply regret ted that the DSB was unable to fulfil its legal obligation to appoint AB members. 
Members ha d a collective responsibility to fill the vacancies of the Appellate Body as they ar ose 
under Article 17.2 of the DSU. Therefore, India called on all Members to engage constructively.  WT/DSB/M/43 7 
 
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5.21.   The representa tive of Mexico , speaking  on behalf of the 116 co -sponsors of th e joint proposal 
contained in document WT/DSB/W/609/Rev.14 , regret ted that for the twenty -ninth occasion, 
Members had still not been able to launch the AB selection processes and ha d thus continuously 
failed to fulfil their duty as Members of this Organization. The fact that a Member m ight have 
concerns about certain aspects of the functioning of the Appellate Body could not serve as a pretext 
to impair and disrupt the work of this bo dy. There was no legal justification for the current blocking 
of the AB selection processes, which was causing concrete nullification and impairment for many 
Members. As Article 17.2 of the DSU clearly state d: "[v]acancies shall be filled as they arise ". No 
discussion should prevent the Appellate Body from continuing to operate fully and Members had to 
comply with their obligation under the DSU to fill the AB vacancies. Mexico noted with deep concern 
that as a result of the Members'  continu ed failure to act  by the next regular DSB meeting on 
18 December  2019, the Appellate Body w ould not be able to perform its functions  fully, against the 
best interest of all Members.  
5.22.   The representative of Mexico  said that Members were  18 days away from the end of the term 
of office of two Appellate Body Members . The 116 co ‑sponsors represent ed the significant interest  
among the Members hip in: (i) complying with the obligation to fill vacancies as they ar ose, in 
accordance with Article 17.2 of the DSU; (ii) addressing t he concerns expressed regarding the 
deadlock that ha d prevailed for more than two years; and (iii) promoting the dispute settlement 
system. Members no longer ha d the luxury of time to delay the launch of the AB selection processes. 
The situation ha d gone f ar beyond one of mere concern . The deadline was fast approaching  and 
after the 10 December 2019 the Appellate Body would face imminent paralysis. All ongoing disputes 
would consequently be affected by the lack of a fully ‑functioning dispute settlement syst em. This 
situation would , of course, undermine the right of all Members to engage in app ellate  proceedings. 
Nevertheless, and despite the possibility of there being no Appellate Body to count on, Members 
continue d to show their confidence in the dispute se ttlement system, as clearly evidenced  by the 17 
requests for consultations received and the 15 panels established  in 2019 . The Membership ha d 
shown its serious commitment to finding a result ‑oriented process to address one Member's 
concerns, and this shoul d be sufficient to enable Members to launch the AB selection process es at 
the present meeting . It was untenable that any concern, however valid  it might be , should deprive 
164 Members of th eir right to appellate review . Mexico deeply regret ted that no consensus ha d been 
reached to date and wished to reiterate its readiness to work on a real solution . Mexico called for an 
end to the current impasse which was impeding the functioning of one of the central pillars of the 
multilateral trading syste m. 
5.23.   The representative of Japan  said that his country wished to refer to its statements made on 
this matter  at previous DSB meetings . 
5.24.   The representative of  Chinese Taipei  said that, a s noted by several delegations, the present 
meeting was the last regular DSB meeting before two of the remaining three Appellate Body 
members' terms would expire. Chinese Taipei regret ted that the DSB still c ould not  agree to launch 
the AB selection process es. Chinese Taipei wished to re fer to its statements  made  in previous  DSB 
meetings  on this matter.  Chinese Taipei  expressed its continue d support of the informal process on 
AB matters conducted by Amb. Walker as Facilitator and hope d that Members could find a solution 
as soon as possibl e. 
5.25.   The representative of Afghanistan  said that his country believed  that a well -functioning 
dispute settlement system  was an imperative component of the multilateral trading system and o f 
the WTO in order  to ensure a full and fair enforcement of the rules and obligations by Members . 
Afghanistan wished to reiterate the importance of the dispute settlement system in promoting a 
rules-based, open, transparent, inclusive, non -discriminatory and equitable internatio nal trad ing 
environment . Hence, Afghanistan  wished to  thank Mexico and all 116 co -sponsors calling for the 
immediate launch of the AB selection process es Afghanistan was pleased to announce that it wished 
to be associate d with the co-sponsors of the  joint proposal contained in document 
WT/DSB/W/609/Rev.14  as a co -sponsor . Afghanistan call ed upon all Members to engage 
constructively and to find a pragmatic solution to the current AB impasse  so as  to prevent the 
collapse of the WTO dispute settlement system. His delegation was ready to engage with all Members 
to overcome this challenge without further delay.  
5.26.   The representative of Brazil  said that Brazil wished to refer to its statements  made  on this 
matter  at previous DSB meetings . As other delegations ha d recalled, this would be the last DSB 
meeting with a functional Appellate Body. The urgency of the immediate launching of the AB 
selection process es was more pressing now than ever . The practical consequences of the breach of WT/DSB/M/43 7 
 
- 23 - 
 
the collective obligation of Members to maintain a standing Appellate Body w ould soon be felt, 
including risks pertaining to the binding nature of WTO dispute settlement as a whole. Brazil 
maintain ed its engagement in the informal process  on AB matters  facilitated by Amb . Walker under 
the auspices  of the General Council so as to help overcome th e current  impasse.  
5.27.   The representative of Turkey  said that his delegation also wished  to refer to its statements 
made at previous DSB meetings . It seem ed, however, that  Turkey would  soon have to change its 
statement  since there would be no functioning Appellate Body when  the following regular DSB 
meeting  would be held on 18 December 2019 . As re called by Mexico, this  was the 29th DSB meeting  
during  which Members called  for the launch of the AB selection process es to fill the AB vacancies , as 
required by Article 17.2 of the DSU. This time, there were 116 Members voicing this urgency through 
the joint proposal submitted by Mexico  and contained in document WT/DSB/W/609/Rev.14 . And, 
this time, Members were  just 20 days away from the possible paralysis of the Appellate Body which 
would not be able to hear new appeals . The security and predictability of the multilateral trading 
system that was mentioned in the DSU would be fading away. During the past two years, Members 
had held deep discussions on ways to provide more clarity as to the  Members' understanding of the 
DSU, and  nearly all Members ha d repeatedly stated that a functioning Appellate Body was at the 
core of a well -functioning dispute settlement system . As part of  these discussions, 12 proposals had 
been submitted to address existing concerns of Members in several ar eas, unfortunately to no avail. 
Turkey was committed , as were other Members,  to safeguard ing a two -tier dispute settlement 
system and was ready to take part in all initiatives that aimed at achieving this objective . In this 
respect , Turkey would continue t o support the informal process on AB matters facilitated by Amb. 
Walker under the  auspices of the  General Council. Turkey also consider ed that this informal process  
was a good way for Members to continue their discussions on areas of convergence that had been 
identified by Amb. Walker in the General Council meeting  held on 15 October 2019 . 
5.28.   The representative of Jamaica , speaking on behalf of the Group of African, Caribbean and 
Pacific countries (ACP Group ), said that ACP Group Members remain ed concerned and regretted  the 
fact that Members had not been able to resolve the current impasse over the launching of the AB 
selection processes . The Group remain ed resolute in its support towards the dispute settlement 
system. Jamaica reiterate d its previous statements made on this matter , especially those that 
highlight ed the extent to which  the A ppellate Body was an essential component of the WTO. Its 
support for the  current dispute settlement  system was validated by the existence of clear 
constitutional features such as the independence and impartiality of rulings, a lack of control by any 
one Member and the notion that rules took preceden ce over narrow political interests. Imperfect as 
the syste m might be, there was no shortage of evidence of its proven success. It was for this reason 
that the ACP Group join ed other Members , at the present meeting, in calling for the immediate 
unblocking and launching of the AB selection process es. The ACP Group further call ed for the urgent 
resolution of issues that continue d to impede the effective functioning of the Appellate Body as the 
legitimate forum for the resolution and enforcement of disputes. The ACP Group remain ed committed 
to working constructively w ith the Membership towards a concrete solution.  
5.29.   The Chairman  thank ed all delegations for their statements  in what, as many  Members  had 
noted, was the last regular DSB meeting ahead of the 10 December  2019 deadline . As in the past, 
the DSB would take note of the statements expressing the respective positions  of Members , which 
would be reflected in the minutes of the present meeting . As Members knew, under the auspices of 
the General Council, he had agreed to assist the Chair of the General Council, as Facilitator, in an 
informal process of focused discussions on Appellate Body matters. He recalled that, on 
15 October  2019, he had provided a fourth progress report to the General Council on his informal 
consultations. This report had been circulated to all Members in document JOB/GC/222. He also 
recall ed that, as part of that report, he had put forward a draft General Council Decision on the 
functioning of the Appellate Body for Members' consideration, under  his own responsibility as 
Facilitator. The text of this draft decision had been based on the proposals submitted by Members 
and the extensive discussions in the informal process as well as the feedback that he had received 
since July  2019. As he had stated at the 15 October 2019 General Council meeting, it remained for 
Members to determine how to take this matter forward. He continue d to assist the Chair of the 
General Council and Members, in his capacity as Facilitator, in order to find a workable and agreeabl e 
solution to improve the functioning of the Appellate Body and to avoid deadlock come December  
2019. 
5.30.   The DSB took note of the statements.  WT/DSB/M/43 7 
 
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6  PENDING APPEALS  
A. Statement by the Chairman  
6.1.  The Chairman  recall ed that, at the 28 October 2019 DSB meeting, he had noted that a number 
of appeals were currently in the pipeline . In this regard, he had announced that he would be 
consulting with those Members who ha d such appeals in the pipeline ahead of 10 December  2019 in 
order to understand how to deal with those appeals . He wished to inform  delegations that he had 
been consulting with the Members concerned, as well as with the other parties concerned, and that 
these consultations were currently ongoing. In light of this, he propose d to suspend the consideration 
of this Agenda item  to allow time for consultations. The Chairman  said that he  would continue to 
consult on these matters and would reconvene the meeting on  this Agenda item by fax as 
soon as possible .  
6.2.  Following the resum ption of the DSB meeting  on 3 December 2019 , the Chairman  
recall ed that , at the 22 November 2019 DSB meeting , he had suspended th e Agenda item on 
"pending appeals" while he continued his consultations  on this matter . In this context and given the 
unprecedented and highly unusual situation Members  found themselves in, he had been consulting 
with Members who ha d such pending appeals, and with the other relevant parties . Together, they 
had discussed whether it was possible to reach a shared understanding  on how to deal with those 
appeals in the pipeline ahead of 10 December 2019 – i.e. those disputes in respect of which a Notice 
of Appeal ha d already been  lodged and disputes in respect of which such notice might yet be lodged 
before 10  December 2019 – and how the DSB might best facilitate that. This situation was without 
precedent and without prejudice to the positions that Members might  have on the matters  involved.  
The Chair  regret ted to advise that he had not been able to arrive at a shared understanding on th is 
matter and, in particular,  that there was no consensus among Members to extend the term of AB 
members whose terms would expire on 10 December 2019. Nevertheless, the Chairman report ed, 
that it was his understanding that for those appeals on which hearings ha d already been concluded, 
the Division which conducted those hearings would complete the appeal. The appeals in the followi ng 
disputes following were concerned: "Australia – Tobacco Plain Packaging (Honduras)" (DS435); 
"Australia – Tobacco Plain Packaging (Dominican Republic)" (DS441); "Russia – Railway Equipment" 
(DS499); and "US – Supercalendered Paper" (DS505). In respect o f other disputes for which Notices 
of Appeal ha d been filed ahead of 10 December 2019, it appear ed that appellants wanting their 
appeals heard out w ould need to await the resumption of a functioning Appellate Body.  
6.3.  The representative of the European Union  said that, u nfortunately, Members were approaching 
a very unique  situation where there would be only one AB member left after 10 December 2019. 
Unlike under normal circumstances, there would be no replacement for outgoing AB members, and 
no possibility to re -assign the pending appeals to other members. This was because new 
appointments ha d been blocked since 2017 by one WTO Member. Under the current rules, the 
Appellate Body was competent to apply Rule 15 of its Working Proced ures. In the recent past, the 
Appellate Body had explained that it had been left with "no option but to apply Rule 15 ", in particular 
"[i]n order to maintain the stability of the dispute settlement system, to deal with the unprecedented 
workload of appeals , and to preserve the rights of participants and third participants in pending 
appeals" (Background Note on Rule 15 of the Working Procedures for Appellate Review, circulated 
on 24 November 2017, Document JOB/AB/3). Similarly, and for the very same reasons , ahead of 
the expiry of the terms of office of two of the three remaining members, the Appellate Body could 
decide to apply Rule 15 in relation to all appeals pending on 10 December 2019. This obviously 
presuppose d that the Appellate Body members concerne d were available to continue their work 
beyond 10 December  2019. The EU underst ood that, under the present circumstances, specific 
questions had arisen in relation to such Appellate Body decision under Rule 15 . As explained by the 
Chairman of the DSB , the DSB had envisaged a specific action in order to allow the pending appeals 
to be completed. The EU would have supported such action by the DSB in these specific 
circumstances. However, i t was EU's  understanding that, through the Chairman's consultations wit h 
WTO Members, the Chair man was not able to ascertain the existence of a consensus on this matter . 
Specifically, the EU underst ood that the Member that ha d been blocking new appointments was also 
opposed to the continued service of any former member of the Appellate Body beyond the end of 
their term of office. The EU was puzzled by such a position. The EU recalled that , at the 
31 August  2017 DSB meeting, the United States had stated that : "it appreciated that the approach 
of Rule 15 could contribute to efficient completion of appeals ". As a party in two appeals pending at 
the time, the United States had said that : "it would welcome Mr. Ramírez's continued service on the 
appeals to which he had been assigned ". The U nited States had said, however , that: "[u]nder the 
DSU […] the DSB had a responsibility to decide whether a person whose term of appointment had WT/DSB/M/43 7 
 
- 25 - 
 
expired, should continue serving, as if a member of the Appellate Body, on any pending app eals" 
(WT/DSB/M/400, para. 5.5). At the present meeting , however, the EU underst ood that the United 
States was standing in the way of the DSB discharging what the U nited States thought, at that time, 
was the DSB 's responsibility. The EU believed that  this undermine d the stability of the dispute 
settlement system and frustrate d the rights of participants in these appeals. The EU was ready to 
continue working with all Members to preserve the proper operation of the dispute settlement 
system, including in rela tion to appeals pending on 10 December 2019.  
6.4.  The representative of Turkey  said that, f or nearly two years, Members ha d been continuing 
their discussions in order to overcome the current stalemate with regard to the AB selection 
processes  and to craft a new understanding on the DSU. As a responsible and concerned Member of 
the multilateral trading system, Turkey ha d engaged in  all constructive discussions on these m atters 
and ha d contributed to the efforts and initiatives for remedying current problems concerning the 
Appellate Body. However, at the present meeting, Members could see that their efforts had not 
yielded  any workable outcome . That was also the case with regard to current ly pending appeals. As 
Members were told at the present meeting , the Appellate Body would only deal with some of the se 
pending appeals, i.e. the ones for which a hearing ha d already been held. Thus, the Appellate Body 
would not consider all of the pending appeals in the same manner . Turkey  believed that  this mean t 
that a certain form of  discrimination among appeals  would take place.  For transitional rules, Turkey 
agree d that it was important for outgoing AB members to complete the disposition of appeals  
assigned to them prior to the expiry of their term of office. Turkey considered that  this would ensure  
predictability and would help avoid procedural disruption. Rule 15  of the Working Procedures for 
Appellate Review , which had been adopted in 1996 by the Appellate Body in accordance with 
Article  17.9 of the DSU , was the only rule which the Appellate Body ha d resorted to thus far for 
transitional arrangements. But, as Members knew and underst ood, the current rul e in its wording , 
and as it was applied by the Appellate Body , did not differentiat e between appeals depending on 
whether oral hearings ha d been held or not. Rule 15 provide d that a person who cease d to be a 
Member could  "complete the disposition of any ap peal to which that person was assigned ". As 
Members m ight recall, since 2013 the Appellate Body had shared with Members its views regarding 
Rule 15 through  communications it had issued , most recently in 2017 . In its communication  of 2017 , 
the Appellate Body  had explained the reasons for its increased application of Rule 15 in recent years. 
In addition, the Appellate Body had said that the " transitional provision has worked well for more 
than twenty years as it has ensured the efficient function ing of the Appellate Body whenever its 
composition changed ". Turkey value d such explanations. However, nothing ha d changed in the 
current situation  and the AB was now propos ing to follow a path which was not set out in  its own 
rules of procedures. If Rule 15 had a value for AB members, then they should respect it and review 
all pending appeals. If Rule 15 w ere not a rule , as one Member  had voiced , then Turkey wondered 
how AB members would select the appeals to be reviewed . In this respect, it was clear that the way  
forward  that had been suggested  was inconsistent with the practice that had guided the AB until 
now. Members, including, Turkey, recognize d the challenges ahead including  the heavy workload of 
the Appellate Body  and how the volume and complexity of appeals ha d become increasingly 
important . However, Turkey wished to see  greater certainty in the current system , and for principles  
to be respected . That was why Turkey support ed the informal process on AB matters fac ilitated by 
Amb. Walker . As provided for under Article 3.2 of the DSU, Turkey believe d that all components of 
the dispute settlement system were central elements in providing security and predictability to the 
multilateral trading system. In line with this , Turkey expect ed that the system would continue its 
review  of all current appeals , as had been the case in the past . 
6.5.  The representative of China  said that his country took note of the statement made by the 
Chair man at the present meeting . China also note d that the uncertainty regarding current  pending 
appeals ha d raised a series of systemic concerns for the entire Membership. Without prejudice  to its 
position , China wished  to share the following observations. First,  China note d that the Chair man's 
statement was factual in nature and outline d his efforts made towards the completion of  all pending 
appeals. However, this statement should not be interpreted to reflect, suggest or imply the position 
of the DSB , nor should  it, in any way , prejudge WTO Members ' positions on this matter. Currently, 
14 appeals  had not been withdrawn from appe llate review  by the parties, and the Appellate Body 
should conclude the work in accordance with the current rules. Second, over the past two years, the 
ability  of the Appellate Body to accomplish its mission had been severely undermined by the illegal 
US blockage of the AB selection processes . The fact that the number of notifications of appeal to the 
DSB had stayed at a high level,  and that  AB resources had been subject to constraints, entail ed that 
the current and unprecedented number of pending appeals was inevitable. Third, Rule 15 of the 
Working Procedures for Appellate Review was in conformity with Article s 17.1, 17.2 and 17.9 of the 
DSU. Article 17.1 of the DSU and Rule 6 of the Working Procedures provide d that regulating the WT/DSB/M/43 7 
 
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rotation of Appellate Body members currently serving on appeals was within the domain of the 
Appellate Body , as provided by the Working P rocedures and the DSB Decision Establishing the 
Appellate Body ( WT/DSB/1). Rule 15 of the Working Procedures ha d been applied on a number of 
occasions for over twenty years. These precedents ha d established a routine and customary practice 
which had been agreed by all WTO Members and to which, prior to the end of August 2017, the 
United States had never objected. Also, even after August 2017, it appear ed that applying Rule 15 
would not be a problem for the United States so long as  the final adjudications were in favo ur of US 
interests. By challenging Rule 15, the United States  had repudiated its previous commitment and 
had risked undermining the entire dispute settlement system. Fourth, an AB member , by taking an 
oath on the first day of his or her term of office , was expected to preserve his or her professional 
ethics, independence and impartiality. AB members  had to  fully comply with relevant rules, including 
the Working Procedures . They should be unaffiliated wi th any government and abstain from any 
involvement in political matters , which might compromise the integrity and authority of the Appellate 
Body. According to Article 17.3 of the DSU, all persons serving on the Appellate Body had to  be 
available at all ti mes and on short notice, so as to ensure the proper functioning of the Appellate 
Body. In that regard, an A B member could not pick and choose to serve , or not serve , on a particular 
dispute. Finally, the solution to curb the uncertainty regarding  all pendi ng appeals was already 
available . Rule 15 had to  be equally and automatically applied to all submitted pending appeals after 
10 December  2019. No DSB decision was required  on this matter . Any deviation, including 
differential treatment regarding some pendi ng appeals, had no basis in the existing rule . The fact 
that Members were conducting discussions elsewhere and might in the future adjust this particular 
rule did not invalidate its current legal status.  
6.6.  The representative of the United States  said that t he United States ha d significant concerns 
with the statements made by several Members that the Appellate Body should continue to breach 
the clear rules of the DSU and to "deem " as an Appellate Body member someone whose term of 
appointment ha d expired  and was thus no longer an Appellate Body member. For nearly one year, 
Members ha d engaged in regular discussions on Rule 15 in the Informal Process . Repeatedly, the 
United States ha d posed to Members a key question : the United States had ask ed whether Members 
agree d that the Appellate Body did not have the authority to "deem " a person who was no longer 
an Appellate Body member to , nonetheless , continue to be a member and to decide appeals . At the 
present meeting , the United States had heard that the answer  to that question was " no" – that is, 
Members were not in agreement on this fundamental question. Rather, the United States had heard 
statements  at the present meeting  which actively encourag ed the Appellate Body to continue to 
break the rules set out in t he DSU. The United States strongly disagree d with such an approach and 
did not consider it to be constructive. It appear ed there would be no consensus between Members 
on how to proceed on the Appellate Body by 10 December  2019. That was disappointing given the 
tremendous efforts the United States ha d made over the past year to explain its concerns with 
persistent rule breaking by the Appe llate Body. Some Members ha d engaged with those concerns, 
and the United States was grateful for that. But many others ha d simply denied that any problems 
existed. In the absence of any shared understanding of the underlying causes and of appropriate 
solutions, it would be for the parties to each dispute to engage with each other to determine an 
appropriate way forward, as some already ha d. 
6.7.  The Chairman  thank ed all delegations for their statements. As had been pointed out , what he 
had report ed to Members at  the present meeting was a matter of fact. He was not seeking any 
decision from the DSB. The DSB would, therefore , take note of the statements expressing respective 
positions, which would be reflected in the minutes of the present DSB meetin . It was his 
understanding that for those appeals in respect of which hearings had already been concluded – that 
is, for the following disputes: "Australia – Tobacco Plain Packaging (Honduras)" (DS435); "Australia 
– Tobacco Plain Packaging (Dominican Republic)" (DS441); "Russia – Railway Equipment" (DS499); 
and "US – Supercalendered Paper" (DS505)  – the Division which had conducted those hearings 
would complete the appeal s. For all other pending appeals in the pipeline, i.e. those cases for which 
a notice of appe al had been lodged ahead of 10  December  2019, it appear ed that any appellant 
wanting their appeal heard out would need to await the resumption of a functioning Appellate Body.  
6.8.  The DSB took note of the statements.  
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