RESTRICTED  
  
WT/DSB/M/445  
24 November  2020 
(20-8501) Page: 1/29 
Dispute Settlement Body  
28 September 2020   
 
  
MINUTES OF MEETING  
HELD IN THE CENTRE WILLIAM RAPPARD  
ON 28 SEPTEMBER  2020 
Chairman : H.E.  Mr. Dacio Castillo  (Honduras ) 
Prior to the adoption of the Agenda : (i) The Chairman  welcomed all delegations participating in 
person as well as those delegations that were listening -in remotely . He recalled that, as had been 
done at past DSB,  he would not be offering the floor to delegations participating remotely ; and 
(ii) The item conc erning the adoption of the Panel Report in the dispute on : "United States – 
Countervailing Measures on Softwood Lumber from Canada " (DS533)  was removed from the 
proposed Agenda following the decision of the United States to appeal the Panel Report.  
 
Table of Content s 
1  SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY 
THE DSB  ................................ ................................ ................................ ...........................  2 
A. United States – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status report by the United States  ................................ ................................ ..............  3 
B. United States – Section 110(5) of the US Copyright Act: Status report by the 
United  States  ................................ ................................ ................................ .....................  3 
C. European Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European Union ................................ ................................ ....... 4 
D. United States – Anti-dumping and countervailing measures on large residential 
washers from Korea: Status report by the United States  ................................ ..........................  5 
E. United States – Certain methodologies and their application to anti -dumping 
proceedings involving China: Status report by the United States  ................................ ...............  6 
F. Indonesia – Importation of horticultural products, animals and animal products: Status 
report by Indonesia  ................................ ................................ ................................ .............  7 
G. Australia – Anti-dumping measures on A4 copy paper: Status report By Australia  ...................  8 
2  UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: 
IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB  ..........................  9 
A. Statement by the European Union  ................................ ................................ .....................  9 
3  EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES 
AFFECTING TRADE IN LARGE CIVIL AIRCRAFT: IMPLEMENTATION OF THE 
RECOMMENDATIONS ADOPTED BY THE DSB  ................................ ................................ .. 10 
A. Statement by the United States  ................................ ................................ ......................  10 
4  UKRAINE – ANTI DUMPING MEASURES ON AMMONIUM NITRATE: 
IMPLEMENTATION OF THE RECOMMENDATIONS  ADOPTED BY THE DSB  ........................  12 
A. Statement by the Russian Federation  ................................ ................................ ..............  12 WT/DSB/M/445  
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  5  CHINA – DOMESTIC  SUPPORT FOR AGRICULTURAL PRODUCERS  ...............................  13 
A. Recourse to Article 21.5 of the DSU by China: Request for the establishment of a panel  ........  13 
6  STATEMENT BY CANADA REGARDING THE PANEL REPORT IN 
"UNITED  STATES  – COUNTERVAILING MEASURES ON SOFTWOOD LUMBER FROM 
CANADA" ................................ ................................ ................................ ........................  14 
7  THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE 
PHILIPPINES  ................................ ................................ ................................ .................  17 
A. Statement by the Chairman on consultations with Thailand and the Philippines with 
regard to the Recourse to Article 22.2 of the DSU (WT/DS371/32)  ................................ ..........  17 
B. Statement by the Philippines  ................................ ................................ ..........................  17 
C. Statement by Thailand  ................................ ................................ ................................ ... 17 
8  STATEMENT BY AUSTRALIA ON MINIMIZING COVID -19 DISRUPTIONS TO THE 
DISPUTE SETTLEMENT SYSTEM  ................................ ................................ ......................  19 
9  PROPOSED NOMINATIONS FOR THE INDICATIVE LIST OF GOVERNMENTAL 
AND NON -GOVERNMENTAL PANELISTS  ................................ ................................ ..........  24 
10  APPELLATE BODY APPOINTMENTS: PROPOSAL BY AFGHANISTAN; ANGOLA; 
ARGENTINA; AUSTRALIA; BANGLADESH; BENIN; PLURINATIONAL STATE OF 
BOLIVIA; BOTSWANA; BRAZIL; BURKINA  FASO; BURUNDI; CABO VERDE; 
CAMEROON; CANADA; CENTRAL AFRICAN REPUBLIC; CHAD; CHILE; CHINA; 
COLOMBIA; CONGO; COSTA RICA; CÔTE D'IVOIRE; CUBA; DEMOCRATIC 
REPUBLIC OF CONGO; DJIBOUTI; DOMINICAN REPUBLIC; ECUADOR; EGYPT; EL 
SALVADOR; ESWATINI; THE EUROPEAN UN ION; GABON; THE GAMBIA; GHANA; 
GUATEMALA; GUINEA; GUINEA BISSAU; HONDURAS; HONG KONG, CHINA; 
ICELAND; INDIA; INDONESIA; ISRAEL; KAZAKHSTAN; KENYA; REPUBLIC OF 
KOREA; LESOTHO; LIECHTENSTEIN; MADAGASCAR; MALAWI; MALAYSIA; 
MALDIVES; MALI; MAURITANIA; MAURITIU S; MEXICO; REPUBLIC OF MOLDOVA; 
MOROCCO; MOZAMBIQUE; NAMIBIA; NEPAL; NEW ZEALAND; NICARAGUA; 
NIGER; NIGERIA; NORTH MACEDONIA; NORWAY; PAKISTAN; PANAMA; 
PARAGUAY; PERU; QATAR; RUSSIAN FEDERATION; RWANDA; SENEGAL; 
SEYCHELLES; SIERRA LEONE; SINGAPORE; SOUTH A FRICA; SWITZERLAND; THE 
SEPARATE CUSTOMS TERRITORY OF TAIWAN, PENGHU, KINMEN AND MATSU; 
TANZANIA; THAILAND; TOGO; TUNISIA; TURKEY; UGANDA; UKRAINE; UNITED 
KINGDOM; URUGUAY; THE BOLIVARIAN REPUBLIC OF VENEZUELA; VIET NAM; 
ZAMBIA AND ZIMBABWE (WT/DSB/W/609/R EV.18)  ................................ ....................  24 
 
1  SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB  
A. United States – Anti-dumping measures on certain hot -rolled steel products from Japan : 
Status report by the United States (WT/DS184/15/Add.20 8) 
 
B. United States – Section 110(5) of the U S Copyright Act : Status report by the United States 
(WT/DS160/24/A dd.183) 
 
C. European Communities – Measures affecting the approval and marketing of biotech products : 
Status report by the European Union (WT/DS291/37/A dd.146) 
 
D. United States – Anti-dumpi ng and countervailing measures on large residential washers from 
Korea : Status report by the United States (WT/DS464/17/A dd.30) 
 
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.22) 
 
F. Indonesia – Importation of horticultur al products, animals and animal products : Status report by 
Indonesia (WT/DS477/21/A dd.17 – WT/DS478/22/A dd.17) 
 
G. Australia – Anti-dumping measures on A4 copy paper : Status report By Australia (WT/DS529/17)  WT/DSB/M/445  
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  1.1.  The Chairman  noted that there were s even sub-items under this Agenda item concerning status 
reports submitted by delegations pursuant to Article 21.6 of the DSU . He recalled that Article 21.6 
required that : "[u]nless the DSB decides otherwise, the issue of implementation of the 
recommendations or rul ings shall be placed on the Agenda of the DSB meeting after six months 
following the date of establishment of the reasonable period of time and shall remain on the DSB's 
Agenda until the issue is resolved ". Under this Agenda item, he invited delegations to  provide up to 
date information about their compliance efforts . He also reminded delegations that, as provided for 
in Rule 27 of the Rules of Procedure for DSB meetings : "[r]epresentatives should make every effort 
to avoid the repetition of a full debate a t 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.208)  
1.2.  The Chairman  drew attention to document WT/DS184/15/Add.208, which contained the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning US anti –dumping measures on certain hot -rolled steel products from Japan . 
1.3.  The representative of the United States  said that the United States had provided a status report 
in this dispute on  17 September  2020, in accordance with Article 21.6 of the DSU . The United States 
had addressed the DSB's recommendations and rulings with respect to the calculation of 
anti-dumping margins in the hot -rolled steel anti -dumping duty investig ation at issue . With respect 
to the DSB's recommendations and rulings that had yet to be addressed, the US Administration 
would work with the US Congress with respect to appropriate statutory measures that would resolve 
this matter . 
1.4.  The representative of Japan said that his country wished to thank the United States for its most 
recent status report and its statement made at the present meeting . Japan, once again, called on 
the United States to fully implement the DSB's recommendations and rulings so as to r esolve this 
matter . 
1.5.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
B. United States – Section 110(5) of the US Copyright Act : Status report by the 
United  States (WT/DS160/24/Add.183)  
1.6.  The Chairman  drew attention to document WT/DS160/24/Add.183, which contained the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyrig ht Act . 
1.7.  The representative of the United States  said that the United States had provided a status report 
in this dispute on 17 September  2020, in accordance with Article 21.6 of the DSU . The US 
Administration would continue to confer with the European Union, and to work closely with the US 
Congress, in order to reach a mutually satisfactory resolution of this matter . 
1.8.  The representative of the European Union  thanked the United States for its status report and 
its statement made at the present me eting. His delegation wished to refer to the EU's statements 
made at previous DSB meetings under this Agenda item . The EU wished to resolve this case as soon 
as possible . 
1.9.  The representative of China  said that t he United States continue d to fail to fully comply in this 
dispute . More than two decades after the DSB had adopted recommendations and rulings in this 
dispute , this dispute remain ed unresolved . The 184 US status reports provided thus far were not 
different from one another and none of them indicated any progress on implementation . China 
believed that as a result, the United States continued to fail to accord the minimum standard of 
protection required by the TRIPS Agreement . The United States had also  become the only WTO 
Member who failed to  implement the DSB's recommendations and rulings under the TRIPS 
Agreement . The clear text of Article 21.1 of the DSU  required Members to promptly bring their 
WTO-inconsistent measures into conformity so as to ensure effective resolution of disputes . China WT/DSB/M/445  
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  urged the United States to  faithfully honour this legal obligation and complete the implementation 
of the DSB's recommendations and rulings  in this dispute without further delay . 
1.10.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
C. European Communities – Measures affecting the approval and marketing of biotech 
products : Status report by the European Union (WT/DS291/37/Add.146)  
1.11.   The Chairman  drew attention to document WT/DS291/3 7/Add.146, which contained the 
status report by the European Union on progress in the implementation of the DSB's 
recommendations in the case concerning measures affecting the approval and marketing of biotech 
products . 
1.12.   The representative of the European U nion said that a t the on -line meeting of the Standing 
Committee on GM Food and Feed held on 1 5 September  2020, the European Commission had 
presented for a vote three authori zations representing 27 possible GMOs .1 Due to COVID -19, the 
voting  was carried  out by written  procedure  and w ould be finali zed by 1 October  2020. The next 
meeting of the Standing Committee on GM Food and Feed was planned for 7 October  2020. At that 
meeting, the European Commission w ould present for a vote five measures ( two new GMOs and 
three  renewals representing a total of 11 GMOs) .2 Voting w ould again be carried out by a written 
procedure ending 14 days later . The EU continued to progress with the authorizations where the 
European Food Safety Authority (EFSA) had finaliz ed its scientific opinion and had concluded that 
there were no safety concerns . The EU had a solid record on the authorization of GMO requests : in 
2019, 18 decisions had been adopted to authorize 65 new GMOs for feed and food, six GMOs had 
been renewed and  one GM cut flower had been authorized . As repeatedly explained by the EU and 
confirmed by the US delegation during the EU -US biannual consultations held on 1 2 June 2019, 
efforts to reduce delays in authorization procedures were constantly maintained at a high level at all 
stages of the authorization procedure . The United States frequently refer red to what was known as 
the EU "opt-out Directive ". The EU wished to reiterate that the DSB's recommendations and rulings 
did not cover that "opt-out Directive ". The EU acted in line with its WTO obligations . The EU wished 
to recall that the EU approval system was not covered by the DSB's recommendations and rulings . 
1.13.   The representative of the United States  thanked the European Union (EU) for its status report 
and it s statement made at the present meeting. The United States understood that the EU had held 
a meeting of the Standing Committee on genetically modified food and feed on 15  September  2020. 
The United States looked forward to receiving an update regarding the  outcomes of that meeting. 
The United States also understood that the next Standing Committee was tentatively scheduled for 
the first week of October  2020. The United States would welcome confirmation of the date and 
agenda for that meeting. However, the U nited States continued to see persistent delays that affected 
a number of applications that had been awaiting approval for an extended period – delays that 
existed long before COVID -19 restrictions had come into effect. The EU had previously suggested 
that, with respect to these delays, the fault was with the applicants. The United States disagreed; 
US concerns related to delays at every stage of the approval process resulting from the actions or 
inactions of the EU and its member States. Currently, approxi mately 20 applications were pending 
risk management decisions in the Standing Committee on biotech and two awaited final approval by 
the European Commission. Three of these applications had been going through the EU approval 
system for over 10 years. The U nited States urged the EU to adopt final approvals for those products 
that had completed evaluation by the Standing Committee. The United States also urged the 
Standing Committee and the European Commission to issue final approvals for those products that 
had successfully received an EFSA positive opinion, yet remained under the Committee's "internal 
procedures ". As the United States had stated at the 28  August  2020 DSB meeting, the United States 
did not acknowledge the EU's claims that there was no ban on genetically engineered (GE) products 
in the EU. Rather, the EU had failed to lift all of the WTO -inconsistent member -State bans covered 
by the DSB's recommendation. The DSB adopted findings that, even where the EU had approved a 
 
1 Soybean SYHT0H2, Maize MON 87427 x MON 89034 x MIR162 x NK603 (stack + 10 possible 
sub-combinations = 11 GMOs), Maize MON 87427 x MON 87460 x MON 89034 x MIR162 x NK603 (stack + 
14 possible sub -combinations = 15 GMOs.  
2 2 new authorizations (soybean MON 87751 x MON 87701 x MON 87708 x MON 89788, only stack 
approval, no sub -combinations, and maize MON 87427 x MON 89034 x MIR162 x MON 87411, approval of 
stack and 6 sub - combinations) and 3 renewals (maize MIR604, maize MON  88017, maize MON 89034).  WT/DSB/M/445  
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  particular product, in many  instances EU member States had banned those products for certain uses 
without a scientific basis. This included not only the two member States subject to panel findings – 
Austria and Italy. There were seven additional member States that had previously mai ntained bans 
on cultivation and had since opted out of cultivation under the EU's legislation: Bulgaria, France, 
Germany, Greece, Hungary, Luxembourg, and Poland. There were also nine member States that had 
not previously banned cultivation of MON -810 but had since opted out of cultivation under the EU's 
legislation: Croatia, Cyprus, Denmark, Latvia, Lithuania, Malta, the Netherlands, Slovakia, and 
Slovenia. Further, Austria and Italy appeared to maintain bans on other products subject to specific 
panel fin dings. The EU's only response, which it continued to repeat, was that the member States 
did not restrict marketing or free movement of MON -810 in the EU. As the United States had noted 
at the 28  August  2020 DSB meeting, this answer did nothing to address U S concerns. The United 
States also disagreed with the EU's response that opt -out procedures taken by member States were 
"proportional, non -discriminatory and based on compelling grounds ". The restrictions adopted by EU 
member States restricted internationa l trade in these products and had no scientific justification. 
Furthermore, despite the assertions of the EU during the 28  August  2020 DSB meeting, this situation 
existed regardless of whether or not the European Commission received "complaints " from seed 
operators or stakeholders. Indeed, this was why the DSB had adopted findings that such restrictions 
on MON -810 were in breach of the EU's WTO commitments. The United States urged the EU to 
ensure that all of its measures affecting the approval of biotech p roducts, including measures 
adopted by individual EU member States, were based on scientific principles, and that decisions 
were taken without undue delay. The United States looked forward to addressing the EU's other 
comments in the coming months and duri ng the next US -EU biannual consultation, which the United 
States understood had been confirmed for 22  October  2020. 
1.14.   The representative the European Union  said that the WTO Agreements did not require full 
international harmonization and left some regulatory  space or autonomy to individual WTO Members . 
The European Union had different regulatory approaches to non -GMOs and GMOs but, in all cases, 
such regulations did not discriminate between imported and domestic like products . No EU member 
State had imposed any "ban". Under the terms of Directive 2001/18/EC, an EU member State could 
adopt measures restricting or prohibiting cultivation only when such measures were in line with EU 
law and were reasoned, proportional, non -discrimin atory and based on compelling grounds . The free 
movement of seeds was embedded in Article 22 of Directive 2001/18/EC : "[m]ember States may 
not prohibit, restrict or impede the placing on the market of GMOs, as or in products, which comply 
with the requirem ents of this Directive ". The EU also noted that according to the provisions of the 
opt-out Directive (Article 26b, point 8) the measures adopted under the Directive "shall not affect 
the free circulation of authorised GMOs " in the EU . Currently, the EU Com mon Catalogue of varieties 
of agricultural species included 150 varieties of maize MON -810, which were allowed to be marketed 
in the EU . As of the present meeting, the European Commission had never received any complaint 
from seed operators or other stakeh olders concerning the restriction of marketing of MON -810 seeds 
in the EU . This confirmed the smooth functioning of the internal market of MON -810 seeds , contrary 
to what the United States ha d just asserted . Once more, the EU invited the United States to provide 
any evidence it might have at its disposal that would substantiate the disruption of the free 
movement of MON -810 seeds in the EU . 
1.15.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
D. United States – Anti-dumping and countervailing measures on large residential 
washers from Korea : Status report by the United States (WT/DS464/17/Add.30)  
1.16.   The Chairman  drew attention to document WT/DS464/17/Add.30, which contained the status 
report by the Unit ed States on progress in the implementation of the DSB's recommendations in the 
case concerning anti -dumping and countervailing measures on large residential washers from Korea . 
1.17.   The representative of the United States  said that the United States had provided a status 
report in this dispute on 1 7 September  2020, in accordance with Article 21.6 of the DSU . On 
6 May 2019, the US Department of Commerce had published a notice in the US Federal Register 
announcing the revocation of the anti -dumping and coun tervailing duty orders on imports of large 
residential washers from Korea (84 Fed . Reg. 19,763 ( 6 May 2019)) . With this action, the United 
States had completed implementation of the DSB's recommendations concerning those 
anti-dumping and countervailing dut y orders . The United States continued to consult with interested WT/DSB/M/445  
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  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 his country wished to thank the United Sta tes for its 
status report . Once again, Korea urged the United States to take prompt and appropriate steps to 
implement the DSB's recommendations for the "as such " measure at issue in this dispute . 
1.19.   The representative of Canada  said that the United States continued to fail to comply with the 
DSB's ruling, arising out of the Appellate Body report in this dispute, that the "differential pricing 
methodology " (DPM) was "as such " WTO-inconsistent . The United States had also ignored th e DSB's 
recommendation that the United States bring itself into compliance with its obligations . Instead, the 
United States continued to apply the "as such " inconsistent differential pricing methodology in 
investigations with respect to foreign companies a nd continued to collect cash deposits from foreign 
exporters based on its inconsistent methodology . The reasonable period of time to implement the 
recommendations relating to the "as such " WTO-inconsistency of the DPM had expired more than 
two years ago . However, in its most recent status report, the United States stated that it continued 
to consult with interested parties . Moreover, the continued use by the United States of the DPM had 
forced Members to resort to several dispute settlement proceedings conc erning this measure . This 
was an inefficient and unnecessary use of WTO dispute settlement resources . Canada remained 
deeply concerned with the continued US failure to comply with the DSB's recommendations and 
rulings in this dispute . This failure seriousl y undermined the security and stability of the multilateral 
trading system . 
1.20.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
E. United States – Certain methodologies and their application to anti -dumping 
proceedings involving China : Status report by the United States (WT/DS471/17/Add.22)  
1.21.   The Chairman  drew attention to document WT/DS471/17/Add.22, which contained the status 
report by the United States on progress in the implementation of the DSB's r ecommendations in the 
case concerning certain methodologies and their application to anti -dumping proceedings involving 
China . 
1.22.   The representative of the United States  said that the United States had provided a status 
report in this dispute on 1 7 September  2020, in accordance with Article 21.6 of the DSU . As 
explained in that report, the United States continued to consult with interested parties on options to 
address the DSB's recommendations . 
1.23.   The representative of China  said that , on 22 May 2017, the DSB had adopted the Appellate 
Body report and the Panel report, as modified by the Appellate Body, in this dispute, which had 
found that a series of US measures had violated the Anti -Dumping Agreement, which included : 
(i) the use of zeroing under the W -T metho dology was as such incompatible with Article 2.4.2 ; 
(ii) the so -called single rate presumption as such violated Articles 6.10 and 9.2 ; and (iii) the adverse 
facts available was a norm of general and prospective application which could be subject to future 
"as such " challenges . The arbitration pursuant to Article 21.3(c) of the DSU had decided that the 
reasonable period of time (RPT) would be 15 months, expiring on 2 2 August  2018. In response to 
the continued US failure to implement  the DSB's recommendations and rulings in this dispute , China 
had had no other choice but to request the authorization to retaliate in accordance with Article 22.2 
of the DSU . On 1 November  2019, the arbitration pursuant to Article 22.6 of the DSU  had determined 
that the level of nullification or impairment caused by the United States was US D 3.579  billion . This 
amount  reveal ed the severe hardship imposed by the illegal US measures . To date, the United States 
continue d to fail to achieve  compliance . None of its 23 sta tus reports provided thus far indicated any 
implementation action . Forty months after the DSB had adopted its recommendations and rulings in 
this dispute , and 25 months after the expiry of the RPT, the DSB'S recommendations and rulings 
were not worth to  China more than the paper  they had been printed on . However, what China had 
experienced in this dispute was not exceptional . The record showed that US implementation, 
especially in trade remedy disputes, had lo ng become a systemic problem for this Organization . The 
substantial delay in US compliance or the US ignorance of its implementation obligation s in many 
disputes ha d seriously compromised the effectiveness and authority of the WTO dispute settlement 
system . Implementation was the cornerstone of the dispute settlement system which kept the WT/DSB/M/445  
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  rules-based, multilateral trading system afloat . The refusal to implement WTO dispute settlement 
rulings would not only backfire on the US economy . It would  also cause the United States to lose its 
credibility when  asking other WTO Members to comply with WTO rules . Article 21.1 of the DSU stated 
that: "[p]rompt compliance with recommendations or rulings of the DSB is essential in order to 
ensure effective res olution of disputes to the benefit of all Members ". China urged the United States 
to faithfully honour its implementation obligation and take concrete actions to achieve full compliance 
in this dispute . 
1.24.   The DSB took note  of the statements and agreed  to rev ert 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.17 – WT/DS478/22/Add.17)  
1.25.   The Chairman  drew attention to document WT/DS477/21/Add. 17 – WT/DS478/22/Add.17, 
which contained the status report by Indonesia on progress in the implementation of the DSB's 
recommendations in the case concerning importation of horticultural products, animals and animal 
products . 
1.26.   The representative of Indonesia  said that his country had provided a status report pursuant 
to Article 21.6 of the DSU . Indonesia reiterate d its commitment to implementing the DSB's  
recommendations and rulings in these disputes . With regard to measures 1 –17, necessary 
adjustments to the relevant Ministry of Agriculture (MoA)  and Ministry of Trade (MoT)  regulations  
had continuously been made and regularly reported to the DSB . Indonesia noted the continued 
concerns raised by New Zealand and the United States . Regarding Measure  18, discussions between 
the Government and Parliament had been taking place in spite of the challenging circumstances due 
to the COVID –19 pandemic . Indonesia believed that the provisions relevant to these disputes in the 
draft amendment of the relevant laws would be addressed accordingly and appropriately . Indonesia 
would continue to engage with New Zealand and the United States regarding matters related to the 
DSB's recommendations and rulings . 
1.27.   The representative of New Zealand  said that his country wished to thank Indonesia for its 
status report . New Zealand acknowledged Indonesia's commitment to comply fully with the DSB's 
recommendations and rulings in this dispute, as well as the steps that Indonesia had taken towards 
compli ance to date . It was disappointing, however, that there continued to be a need to have this 
item on the Agenda of DSB meetings . Both compliance deadlines that had been agreed between the 
parties had expired . New Zealand was seriously concerned that measure s remained non -compliant . 
These included : the failure to remove Measure 18 ; and the continued enforcement of limited 
application windows and validity periods, harvest period import bans, import realization 
requirements, and restrictions placed on import vo lumes based on storage capacity . New Zealand 
was particularly concerned that difficulties continued to be experienced in obtaining import 
recommendations and approvals . If this issue were not resolved promptly, it could undermine the 
progress made towards compliance to date . New Zealand strongly encouraged Indonesia to take 
appropriate steps, swiftly, to achieve full compliance with the DSB's recommendations and rulings 
in this dispute . 
1.28.   The representative of the United States  thanked Indonesia for i ts status report but was 
concerned that Indonesia had not brought its measures into compliance with WTO rules. The United 
States and New Zealand agreed that significant concerns remained with the measures at issue, 
including the continued imposition of har vest period restrictions, import realization requirements, 
warehouse capacity requirements, limited application windows, limited validity periods, and fixed 
licensed terms. The United States remained willing to work with Indonesia to fully and meaningfully  
resolve this dispute. The United States understood that Indonesia claimed to have "completed its 
enactment process " of certain regulations, but the United States was still waiting to hear from 
Indonesia on whether and how such action would bring its measu res into full compliance. It also 
remained unclear how Indonesia's proposed legislative amendments would address Measure 18 and 
when Indonesia would complete its process. The United States looked forward to receiving further 
detail from Indonesia regarding  the changes to its regulations and laws, especially with respect to 
Ministry of Agriculture Regulation 46/2019 on Strategic Horticultural Commodities . 
1.29.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . WT/DSB/M/445  
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  G. Australia – Anti-dumping measures on A4 copy paper : Status report By Australia 
(WT/DS529/17)  
1.30.   The Chairman  drew attention to document WT/DS529/17, which contain ed the status report 
by Australia on progress in the implementation of the DSB's recommendations in the case concerning 
anti-dumping measures on A4 copy paper.  
1.31.   The representative of Australia  said that her country had  provided a status report in this 
dispute  on 17 September  2020 in accordance with Article 21.6 of the DSU . As set out in that report, 
Australia ha d fully implemented the DSB's recommendations and rulings in this dispute . In particular , 
on 12 March  2020, the Australian Anti -Dumping Commission (ADC ) had initiated a review of 
measures under Division V of Part XVB of the Customs  Act 1901 (Cth) for the purpose of 
implementing the DSB's rulings and recommendations in this dispute (Review 547) . 
On 11 September  2020, the Australian Minister for Industry, Science and Technology had signed a 
notice (Anti -Dumping Notice No.  2020/90, published on 14  September  2020), adopting the 
recommendations and reasons for the recommendations in the ADC's Final Report for Review 547, 
and declaring that the dumping duty not ice be revoked with respect to A4 copy paper exported from 
Indonesia to Australia by Indah Kiat and Pindo Deli with effect from 12  March  2020, the date of 
initiation of Review 547 . The Industry Minister 's decision, published in Anti -Dumping  Notice  
No. 2020/90 on 14  September  2020, br ought  Australia into full compliance with the DSB's 
recommendations and rulings in this dispute . In notifying its implementation, Australia  again wish ed 
to thank the Panel and the Secretariat for their time and effort on this dispute, which had addressed 
important systemic issues not previously considered, notably with respect to the interpretation of 
"particular market situation " under Article 2.2 of the Anti -Dumping Agreement . Australia  welcomed 
the Panel's findings on "particular market situation ". These findings recogni zed that situations arising 
from government intervention could , under certain circumstances, constitute a "particular market 
situation ". The findings had usefully clarified the methodologies required to find that a "particular 
market situation " did not "permit a proper comparison " under Article 2.2 . The findings  had also 
clarified the construction of normal value under Articles 2.2 and 2.2.1.1 of the Anti -Dumping 
Agreement.  
1.32.   The representative of Indonesia  said that his country wished to thank Australia for its status 
report and its statement made at the present meeting regarding Australia's  obligation under 
Article  21.6 of the DSU. Indonesia t ook this opportunity to convey that the reasonable period of time 
for Australia to implement the DSB 's recommendations and rulings in this dispute ha d expired on 
27 September  2020, with an extension of one month in the event of unavoidable delays . Indonesia 
noted that the Australian Anti -Dumping Commission (ADC) had initiated a review under Division V 
of Part XVB of the Customs Act 1901 (Review 547) in order to implement the DSB 's 
recommendations and rulings . This action had been  followed by the adoption of the ADC's 
recommendation in the Final Report of Review 547 by the Minister for Industry, Science and 
Technology and by the issuance of Anti -Dumping Notice (ADN) No. 2020/090 on 
11 September  2020, which  declared that the Anti -Dumping duty for A4 copy paper in this di spute 
had been revoked as of 1 2 March  2020. However, in order to ensure the full implementation of the 
DSB's recommendations and rulings in this dispute, Indonesia w ished  to seek further clarification s 
on several important issues from Australia . In particu lar, Indonesia sought clarifications  on whether 
the decision made by the Minister for Industry, Science and Technology ha d been final, considering 
the Anti -Dumping Notice state d that interested parties could  seek a review o f this decision and c ould 
submit an application within 30 days after its publication . Indonesia asked whether  that mean t that 
the decision c ould still be changed depending on the outcome  of this review . Indonesia also asked  
how long this review w ould take. Against this background, Indones ia sought  Australia 's clarifications 
regarding  these crucial issues . Indonesia st ood ready to communicate and work closely with Australia 
to resolve this matter with a view to achiev ing a mutually satisfactory solution in accordance with 
the provision s of the DSU . 
1.33.   The representative of Australia  said that i n response to Indonesia 's intervention, her country 
wished to  note that, as required by Article  13 of the WTO Anti -Dumping Agreement, Australia 
maintain ed independent judicial and administrative procedures for the prompt review of final 
determinations and reviews of anti -dumping decisions . In particular, interested parties to a review 
of measures under Division V of Part XVB of the Customs Act 1901  (Cth) were entitled to apply for 
an administrative review (within 30 days of publication) or a judicial review (within 28 days of 
publication) of the Industry Minister 's decision, and any decision by the Minister following 
administrative review . For this reason, Australia and Indonesia were in the process of discussing WT/DSB/M/445  
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  sequencing arrangements with respect to Articles 21 and 22 of the DSU to facilitate the resolution 
of this  dispute should a disagreement as to compliance arise in future . Australia w ished  to thank 
Indonesia for continuing to engage in good faith to ensure the prompt resolution of this dispute.  
1.34.   The DSB took note of the statements.  
2  UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000 : 
IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB  
A. Statement by the European Union  
2.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European Union . He then invited the representative of the European Union to speak . 
2.2.  The representative of the European Union  said that on 1 May 2020, the EU had adjusted the 
level of suspension to the nullification or impairment caused by the Continued Dumping and Subsidy 
Offset Act of 2000 (CDSOA) to the EU . The adjustment maintained unchanged the list of products 
subjected to retaliation while increasing the rate of additional duty to which those products were 
subjected to 0.012 % in order to adjust to the level of retaliation . The letter informing of the 
adjustment, together with the Commission Delegated Regulation (EU) 2020/578 of 
21 February  2020, had been notified to the DSB on 2 6 June 2020. The EU requested, once again, 
that t he United States stop transferring anti -dumping and countervailing duties to the US industry . 
Even if the amounts had considerably decreased, the most recent  CDSOA report from 
December  2018 showed that amounts were still being disbursed in practice . Every disbursement 
that still took place was clearly an act of non -compliance with the DSB's recommendations and 
rulings in this dispute . As long as the United States did not fully stop transferring collected duties, 
this item was rightly under the DSB's surveil lance. Due to the long -standing nature of this breach, 
the EU would continue to insist on placing this item on the Agenda of DSB meetings, as a matter of 
principle, and independently from the cost resulting from the application of such limited duties . The 
EU renewed 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 Agenda of DSB meetings as long as the United States ha d not fully implemented the DSB's 
rulings  and until the disbursements ceased completely . 
2.3.  The representative of Canada  said that his country wished to thank the European Union for 
placing this item on the Agenda of the present meeting . Canada agreed with the EU that the Byrd 
Amendment should remain subject to the surveillance of the DSB until the United States ceased to 
administer it . 
2.4.  The representative of the United States  said that as the United States had noted at previous 
DSB meetings, the Deficit  Reduction Act – which included a provision repealing the Continued 
Dumping and Subsidy Offset Act of 2000 – had been enacted into law more than 14 years ago in 
February  2006. The Deficit Reduction Act did not permit the distribution of duties collected on  goods 
entered after 1  October  2007, more than 12 years ago. Accordingly, the United States had long ago 
implemented the DSB's recommendations and rulings in these disputes. Even aside from this, it was 
evidently not common sense that was driving the EU's approach to this Agenda item. On 
26 June 2020, the EU had notified that it would apply an additional duty of 0.012% on certain 
imports of the United States. That was 12  thousandths of one  per cent. There was no trade rationale 
for inscribing this item mont h after month. The EU had erroneously referred to a "clear obligation " 
under Article 21.6 of the DSU for the United States to submit a status report in this dispute. As the 
United States had explained repeatedly, Article 21.6 called for a Member to provide  a report "on the 
progress of its implementation ". There was no obligation under the DSU for a Member to provide 
further status reports once that Member announced that it has implemented  the DSB's 
recommendations. The widespread practice of Members – including the European Union as a 
responding party – confirmed this understanding of Article 21.6. Indeed, at recent meetings, 
two Members (Brazil and China) had informed the DSB that they had come into compliance with the 
DSB's recommendations in three dispute s (DS472, DS497, and DS517), and the complaining parties 
had not accepted the claims of compliance. Those Members announcing compliance had not provided 
a status report for the present meeting. This was consistent with the understanding that there was 
no obligation for a Member to provide further status reports once that Member announced that it 
had implemented the DSB's recommendations. The EU was the complaining party in one of those WT/DSB/M/445  
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  disputes (DS472). If the EU believed that status reports were "required " under the DSU, it would 
have insisted that the responding Member provide a status report, or the EU would have inscribed 
that dispute as an item on the present meeting's Agenda. The EU had taken neither action. 
Therefore, it was once again clear that the EU did not truly believe that there was a "clear obligation " 
under Article 21.6 of the DSU to submit a status report after a party had claimed compliance. The 
EU had simply invented, in its own mind, a rule for this dispute that it did not apply to other d isputes . 
2.5.  The representative of the European Union  said that u nder Article 21.6 of the DSU, the issue of 
implementation shall remain on the Agenda of DSB meetings until the issue was resolved . In this 
dispute, the EU did not agree with the US assertion that it had implemented the DSB's 
recommendations and rulings . This meant that the issue remained unresolved for the purposes of 
Article 21.6 of the DSU . If the United States did not agree that the issue remained unresolved, 
nothing prevented it from seeking a multilateral determination through a compliance procedure . This 
understanding seem ed to also be shared by Indonesia in  the "Indonesia – Chicken " dispute ( DS484 ). 
2.6.  The DSB took note of the statements.  
3  EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES AFFECTING 
TRADE IN LARGE CIVIL AIRCRAFT : IMPLEMENTATION OF THE RECOMMENDATIONS 
ADOPTED BY THE DSB  
A. Statement by the United States  
3.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the Uni ted States . He then invited the representative of the United States to speak . 
3.2.  The representative of the United States  noted that once again the European Union had not 
provided Members with a status report concerning the dispute "EC – Large Civil Aircraft " (DS316). 
As the United States had noted at several recent DSB meetings, the EU had argued – under a 
different Agenda item – that where the EU as a complaining party did not agree with another 
responding party Member's "assertion  that it has implemented the  DSB ruling ", "the issue remains 
unresolved for the purposes of Article 21.6 [of the] DSU ". Under this Agenda item, however, the EU 
argued that by submitting a compliance communication, the EU no longer needed to file a status 
report, even though the Unite d States as the complaining party did not agree with the EU's assertion 
that it had complied. The EU's position was erroneous and not based on the text of the DSU. The EU 
argued that where "a matter is with the adjudicators, it is temporarily taken out of the DSB's 
surveillance " and the DSB was somehow deprived of its authority to "maintain surveillance of 
implementation of rulings and recommendations ". Yet, there was nothing in the DSU text to support 
that argument, nothing in Article 2 of the DSU or elsewhere that limited the DSB's authority in this 
manner, and the EU provided no explanation for how it read Article 21.6 of the DSU to contain this 
limitation. The EU was not providing a status report because of its assertion that it had complied, 
demonstrating that the EU's principles varied depending on its status as complaining or responding 
party. The US position on status reports had been consistent:  under Article 21.6 of the DSU, once a 
responding Member announced to the DSB that it had complied, there was no further "progress " on 
which it could report, and therefore no further obligation to provide a status report. But as the EU 
allegedly disagreed with this position, it should for future meetings provide status reports in this 
"EC – Large Civil Aircraft " dispute (DS316). The  United States noted that it was committed to 
obtaining a long -term resolution of this dispute. The United States had recently showed great 
restraint in its review of WTO -authorized countermeasures for the EU's WTO -inconsistent launch 
subsidies. The United States would engage with the EU in a new process in order to seek an 
agreement that would remedy the conduct that harmed the U S aviation industry and workers and 
would ensure a level playing field for US companies . 
3.3.  The representative of the European Union  said that a s during  previous DSB meetings, the 
United States had implied that the EU was taking inconsistent positions under A rticle 21.6 of the 
DSU, depending on whether the EU was a complaining party or a defending party in a dispute . The 
US assertions were without merit . As the EU ha d repeatedly explained during  past DSB meetings, 
the crucial point for the defending party 's obligation to provide status reports to the DSB was the 
stage of the dispute . In the "EC – Large Civil Aircraft " (DS316)  case (the Airbus case) , the dispute 
was at a stage where the defending party d id not have an obligation to submit status reports to the 
DSB. The EU  wished  to remind the DSB that in the Airbus  case, the EU had notified a new set of WT/DSB/M/445  
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  compliance measures to the DSB . That new set of compliance measures  had been  a clear 
demonstration that t he EU – contrary to the U nited States in the parallel "US – Large Civil Aircraft 
(2nd complaint) " case (DS353)  (the Boeing -case) – was serious about and committed to achieving 
compliance . That new set of compliance measures had been  subject to an assessmen t by a 
compliance panel and that panel 's report had been  issued on 2 December  2019. As noted in the EU's  
statement made at the 18 December  2019 DSB meeting, the EU believed  that significant aspects of 
the compliance panel 's report c ould not be regarded as legally correct and were very problematic 
from a systemic perspective when it c ame to assessing compliance with the subsidy disciplines of 
the WTO agreements . It was in ord er to have these legal errors corrected that the EU ha d filed an 
appeal against the compliance panel 's report on 6 December  2019. The EU was  concerned that with 
the current blockage of the two -step multilateral dispute settlement system, the EU was  losing the 
possibility of a proper appellate review of the serious flaws contained in the panel report . While the 
blockage continue d, the EU  stood ready to discuss with the U nited States alternative ways to deal 
with this appeal . The EU was  also committed to find ing a balanced negotiated solution with the 
United States that would allow leaving both aircrafts disputes behind them. These considerations d id 
not, however, alter the fact that the compliance proceeding in this dispute ha d not been concluded . 
Whether or not the matter was "resolved " in the sense of Article 21.6 of the DSU remain ed the very 
subject matter of this ongoing litigation . The EU asked how it could be said that the defending party 
should submit "status reports " to the DSB in these circumstances . The EU would be very concerned 
with a reading of Article 21.6 of the DSU that would require the defending party to notify the 
purported "status of its implementation efforts " through the submission of status reports to the DSB, 
while dispute settlement proceedings on that precise issue were ongoing . The EU note d that its 
reading of the provision was supported by other WTO Members . The view of the European Union 
was further supported by Article 2 of the DSU on the administration of the dispute settlement rules 
and procedures : where, further to the disagreement between the parties on compliance, a matter 
was with the adjudicators  and it was temporarily taken out of the DSB 's surveillance . 
3.4.  He said that the  EU's willingness to find a negotiated solution was also shown by its notification 
dated  21 August  2020, which had been  discussed at the 28 August  2020 DSB meeting, of additional 
and extraord inary compliance measures that withdr ew all remaining subsidies and constitute d 
appropriate steps to remove adverse effects, substantially in excess of what was required by 
Article  7.8 of the SCM Agreement . These additional and extraordinary measures went far beyond 
what was required in order to discharge the EU's compliance obligations under Article 7.8 of the SCM 
Agreement . The EU ha d procured these additional, extraordinary and costly compliance measures in 
an effort to persuade rational and reasonable stakeholders in the United States, including 
consumers, employers, workers, government officials and entities, airlines and other economic 
operators, that now was the time to draw a line under these disputes . It was not in the interests of 
anyone that the EU and the United States now proceed to, or continue, mutually assured retaliation, 
and certainly not in the current economic climate . Instead of progressively stepping -up retaliatory 
measures, the EU and the United States  should step them down . With that in mind, the EU reaffirm ed 
its determination to obtaining a long -term resolution to the WTO aircrafts disputes . A balanced 
negotiated settlement was the only way to avoid mutually imposed countermeasures.  
3.5.  The representative of the United States  said that t he United States was aware that the EU had 
recently filed yet another notice of supposed compliance . The United States disagree d that the EU 
had achieved compliance . Instead, the United States agree d with the second compliance panel 
report, which had rejected the EU 's assertions and had found that eight EU launch aid subsidies 
continue d to cause adverse effects . The EU now assert ed that it ha d amended two of these eight 
measures ; therefore, it admitte dly ha d made no changes to six WTO-inconsistent measures . 
Unfortunately, the amendments the EU had made to French and Spanish A350 XWB launch aid were 
marginal and insufficient to withdraw those subsidies . The EU ha d also expressed doubt about US 
complianc e in the "US – Large Civil Aircraft ( second complaint) " dispute (DS353) . But no one c ould 
deny that Washington State had terminated the aerospace tax break – and the EU ha d not denied 
it. The text of the measure was public, and its terms had been  notified to the WTO and the EU . This 
was the sole measure found to cause adverse effects in the compliance proceeding . Nevertheless, 
as previously stated, the  United States was committed to a new process with the EU in an e ffort to 
reach a long -term resolution of this dispute.  
3.6.  The representative of the European Union  said that the EU  did not agree with the unilateral US 
assertion that it had fully implemented the DSB recommendations and rulings in the "US – Large 
Civil Aircr aft (2nd complaint) " dispute  (DS353) . While the EU was still examining the impact of the 
legislative action concerning the Washington State B&O tax, the EU noted that the rulings in that WT/DSB/M/445  
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  dispute covered a number of additional measures where the US remained  non-compliant (including 
NASA and Department of Defense Research and Development measures and certain State and local 
measures) . As already referred to in the EU's  statements made at previous DSB meetings on th is 
matter, following the Appellate Body report on compliance in the "EC – Large Civil Aircraft " case 
(DS316) , the EU had notified a set of compliance measures to the WTO that had brought the EU into 
compliance with the ruling . The United States had disagreed . On the basis of its disagreement, the 
United States continued to apply countermeasures against products from the EU . At the same time, 
the United States was blocking the two -stage multilateral dispute settlement system, thus depriving 
the EU from seeking a multil ateral determination of compliance regarding its measures . 
3.7.  The representative of the United States  said that the EU again suggested that it was "still 
examining the impact of the legislative action concerning the Washington State B&O tax ". This 
formulation  appeared to be a way to avoid stating what was clear – that the United States had 
unequivocally withdrawn this measure. The elimination of the preferential tax rate was 
straightforward and had been enacted in March, some six months ago. It had taken effec t on 
1 April 2020. From that date forward, the tax on Boeing's large civil aircraft was the same as the 
benchmark rate identified in the adopted reports. There was no grandfathering. It was not possible 
to still be examining this straightforward piece of l egislation. The EU had also referred, again, to 
NASA and Department of Defense research and development measures, as well as to certain state 
and local measures. However, as the EU was aware, it had attempted and failed to show that these 
measures were WTO -inconsistent after the end of the US compliance period. To be clear, the EU had 
been unsuccessful in the compliance proceeding in obtaining WTO findings of non -compliance on 
NASA research and development, on Department of Defense research and development,  or on any 
state or local measures. Nevertheless, as previously stated, the United States was committed to a 
new process with the EU in an effort to reach a long -term resolution of this dispute . 
3.8.  The DSB took note of the statements.  
4  UKRAINE – ANTI DUMPING MEASURES ON AMMONIUM NITRATE : IMPLEMENTATION OF 
THE RECOMMENDATIONS  ADOPTED BY THE DSB  
A. Statement by the Russian Federation  
4.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the Russian Federation . He then invited the representative of the Russian Federation  to speak . 
4.2.  The representative of the Russian Federation  said that o n 30 September  2019, the DSB had 
adopted its recommendations and rulings in the "Ukraine – Ammonium Nitrate (Russia) " dispute  
(DS493) , including the  recommendation for Ukraine to bring its measures into conformity with its 
obligations under the Anti -Dumping Agreement . At the 28 October  2019 DSB meeting, Ukraine had 
indicated its intention to fully implement the DSB's recommendati ons and rulings in this dispute , 
and that it would need a reasonable period of time for implementation . On 8 April 2020, pursuant 
to Article  21.3(c) of the DSU , the Arbitrator had issued an award that determined the reasonable 
period of time for Ukraine to  implement the recommendations and rulings of the DSB in this dispute . 
This reasonable period of time had expired on 1 5 September  2020. It had been two weeks since the 
reasonable period of time had elapsed . Yet there ha d been no communication from Ukraine to the 
Russian Federation with respect to its implementation of, and compliance with , the DSB's 
recommendations and rulings in this dispute . The Russian Federation w ished  to underscore the 
Arbitrator 's clarification that : "given the limited scope of the contemplated administrative review, 
which will focus on calculating normal value and complying with certain disclosure requirements, 
12 months is more than reasonably needed  for implementation in this dispute ". The period 
established by the Arbitrator had duly t aken into account the on -going COVID -19 pandemic .3 
For these reasons, the Russian Federation request ed that Ukraine share information regarding the 
steps taken prior to  15 September  2020 to implement the DSB's recommendations and rulings.  
4.3.  The representative of Ukraine  said that on 3 0 September  2019, the DSB had adopted the 
recommendations and rulings in the "Ukraine – Ammonium Nitrate (Russia) " dispute (DS493) . 
Subsequently, a t the 2 8 October 2019 meeting , Ukraine had informed the DSB of its intention to 
implement the DSB's recommendation . The Russian Federation had requested that the reasonable 
period of time for Ukraine to implement the DSB's recommendation s be determined through 
 
3 Award of the Arbitrator, Ukraine – Anti-Dumping Measures on Ammonium Nitrate , para. 3.47.  WT/DSB/M/445  
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  arbitration pursuant to Article 21.3 of the DSU . The Arbitrator had determined the reasonable period 
of time to be 11 months and 15 days from the date of  adoption of the Appellate Body and Panel 
reports . With respect to the DSB's recommendation s and rulings, the anti-dumping duties on imports 
into Ukraine of ammonium nitrate  originat ing in the Russian Federation ha d been complete ly lifted 
following the dec ision of the Interdepartmental Commission of International Trade, dated 
21 September  2020. This decision had become publicly available following its publication in the 
Government 's Uryadovy Kuryer  newspaper . This decision ensure d full implementation of the DSB 's 
recommendation s and rulings in th is dispute.  
4.4.  The DSB took note  of the statements . 
5  CHINA – DOMESTIC  SUPPORT FOR AGRICULTURAL PRODUCERS  
A. Recourse to Article 21.5 of the DSU by China : Request for the establishment of a pane l 
(WT/DS511/19)  
5.1.  The Chairman  recalled that the DSB had considered this matter at the 28 August  2020 DSB 
meeting and had agreed to revert to it, should a requesting Member wish to do so . He then drew 
attention to the communication from China contained in document WT/DS511/19 and invited the 
representative of China to speak.  
5.2.  The representative of China  said that on 5 August  2020, China had submitted its request for 
the establishment of a compliance panel in this dispute, pursuant to Article 21. 5 of the DSU and 
Article 19 of the Agreement on Agriculture . At the 2 8 August  2020 DSB meeting , China had clarified 
the background and reason s for this request . He recall ed that China  had fully implemented the DSB's 
recommendations and rulings in this disp ute within the reasonable period of time . Starting from 
2020, the Minimum Procurement Price (MPP) policies for wheat and rice set out maximum 
procurement amounts that serve d to limit the amount of production eligible to receive the MPP . The 
procurement pro cess was required to be monitored and published regularly, and , in no event , shall 
the actual procurement amount exceed the maximum procurement amount fixed each year . In spite 
of China 's prompt and full compliance, the United States had still chose n to directly pursue retaliation 
without first resorting to compliance proceedings . Nor had it engaged with China on reaching a 
sequencing arrangement which was a customary and prevailing practice of WTO Members in such 
circumstance s. China expressed  concern with the systemic implication of the US approach in this 
dispute , as it could  open the door to abuse of the dispute settlement system . Moreover, the United 
States continued to fail to specify on what basis China's implementation fell short of full  compliance . 
If the United States  genuinely disagree d with China  that it s implementation  had achieved 
compliance , it was incumbent on the United States to prove the shortcomings  in China 's compliance 
measures . By filing this compliance panel request, China  aimed at  protect ing its rights under the 
covered agreements, and at finding a positive resolution of the dispute in a logical manner . It was 
worth noting that when a WTO Member ma de its best endeavo ur to promptly comply with WTO 
rulings, just like what Ch ina had done  in this dispute, it also h eld a reasonable and legitimate 
expectation that others w ould do the same in return . Unfortunately, the United States continue d to 
fail to meet such an expectation . In the "US – Anti-Dumping Methodologies (China) " dispute ( DS471 ) 
and in other disputes, the United States had deliberately delayed or ignored its implementation 
obligations long after the expiration of the relevant reasonable period s of time . Such neglect of clear 
rules was not limit ed to implem entation . China noted that in recent years the United States ha d paid 
increasing amount s of money to its agricultur al sector . Taking only the so -called trade mitigation 
payment  as an example , payment s to farmers from the US government ha d increased from 
USD 12 billion  in 2018 to USD 16 billion  in 2019 . This number ha d further increas ed to USD 19 billion  
for the start of 2020  only. With all th is new financial assistance in addition to  existing price supports, 
observers  should have legitimate reasons  to ask whether the US  agricultural support ha d exceeded 
its allowable limits under the covered agreements . It was obvious  that the viability of the rules -based 
multilateral trading system depend ed on a good faith observance of the rules agreed by all Members . 
He noted that China had placed  this item on the Agenda of a  DSB meeting  for the second time . 
According to the DSU, the compliance panel had to  be established at th e present  meeting . China 
was confident that an impartial panel w ould confirm that China 's measures  achieved full compliance 
in this dispute.  
5.3.  The representative of the United States  said that the DSB had found that China provided 
domestic support to its agricultural producers in excess of its Aggregate Measure of Support (AMS) 
commitments under the Agreement on Agriculture . The DSB had adopted its recommendation in WT/DSB/M/445  
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  April 2019 to Chin a to bring its measures into conformity with its WTO commitments. Since then, 
China continued to provide significant levels of domestic support to its agricultural producers. The 
revised market price support measures notified by China in June  2020 did not themselves 
demonstrate that China provided a level of domestic support within its commitment levels. 
Therefore, China had not demonstrated that its AMS (as calculated per the Agreement on 
Agriculture ) would be within its commitment level in 2020. The Unite d States had reserved its right 
to suspend concessions under Article 22.6 of the DSU, and the level of nullification and impairment 
resulting from China's provision of domestic support in excess of its AMS commitments had been 
referred to arbitration. The United States had paused that arbitration. The United States understood 
that China did not seek further litigation but had requested a panel to preserve its rights under 
Article 21.5 of the DSU. The United States and China continued to work together to rea ch a resolution 
to this dispute . 
5.4.  The DSB took note  of the statements and agreed  pursuant to Article 21.5 of the DSU, to refer 
to the original Panel, if possible, the matter raised by China in document WT/DS511/19 . It was 
agreed that the Panel would have st andard terms of reference . 
5.5.  The representatives of Australia , Brazil , Canada , the European Union , Guatemala , India, Japan , 
Korea , Norway , Pakistan , the Russian Federation , Chinese T aipei, Thailand  and Turkey  reserved their 
third-party rights to participate in the Panel's proceedings.  
6  STATEMENT BY CANADA REGARDING THE PANEL REPORT IN "UNITED  STATES  – 
COUNTERVAILING MEASURES ON SOFTWOOD LUMBER FROM CANADA " 
6.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
Canada . He then invited the representative of Canada  to speak.  
6.2.  The representative of Canada  said that his country  first wished  to thank the members of the 
Panel and the WTO Secretariat for their work in this dispute . Canada  also wished  to express  its 
apprec iation for the contribution by third parties in this case . Canada welcome d the findings and 
recommendations of the Panel regarding the US  Department of Commerce 's final countervailing duty 
determination concerning softwood lumber from Canada . The Panel had reviewed  thousand s of 
pages of written submissions and supporting evidence to prepare a thorough and balanced report . 
The Panel had repeatedly found that the Department of Commerce had improperly determined that 
the Canadian provinces provide d subsidies to softwood lumber producers by selling Crown timber 
for less than adequate remuneration . Canada w ished to  first address the contents of the report itself 
before  discuss ing the implications of the US decision to appeal this report while it simul taneously 
blocked appointments to the Appellate Body . At the outset, Canada wished to reiterate that it 
strongly believe d that all Members were entitled to take appropriate measures to address unfair 
trade practices . However, ensuring the security and pred ictability of the multilateral trading system 
demand ed that any such measures conform ed to the obligations that the Members had undert aken 
in the WTO Agreements . In this dispute, the Panel had conducted an objective assessment of the 
matter before it . To this end, the Panel had examined whether the Department of Commerce had 
provided "reasoned and adequate " explanations as to how the record evidence supported its findings 
and whether the Department of Commerce had assessed that evidence in an objective and unbiased 
manner . The Panel had found that the Department of Commerce had failed to meet these 
requireme nts in relation to 16 different claims . The Panel had concluded that the Department of 
Commerce had repeatedly failed to act in an objective and unbiased manner and that its treatment 
of the evidence  had undermined the due process rights set out in Article  12.1 of the SCM Agreement.  
6.3.  Canada w ished  to highlight three important aspects of the Report . First, the Panel had provided 
valuable guidance on benchmark selection under Article 14(d) of the SCM Agreement . Canada had 
argued that an investigating authority  was required to determine adequacy of remuneration on the 
basis of the market conditions that prevail ed for the government -provided good . In particular, 
Canada had argued that markets for standing timber were regional in nature and that the 
Department of Commerce had improperly rejected regional provincial market prices and had instead 
made a comparison to prices outside of these regional markets . The Panel had indicated that there 
was "ample " and "copious " amounts of evidence that indicated that provincia l stumpage markets in 
the B ritish Columbia  Interior, Quebec, Alberta and Ontario were regional markets . The Panel had 
therefore found that Commerce was under the obligation to consider  using market -determined 
benchmarks from within each of those regions as  a starting point in its Article 14(d) benefit analysis . 
The Panel had also agreed with Canada that the Department of Commerce had acted inconsistently WT/DSB/M/445  
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  with Article  14(d) by rejecting prices from provincial auction systems and other market -based 
benchmarks  in British Columbia, Alberta, Québec, and Ontario . Second, the Panel had determined 
that the Department of Commerce had erred by expressly ignoring "remuneration " in the form of 
mandatory charges or in -kind obligations that had been  incurred in exchange for Crown timber . The 
failure to account for this "remuneration " had artificially inflated the amount of alleged subsidy . 
Third, the Panel had upheld Canada's claim that the British Columbia Log Export Permitting process 
did not const itute a financial contribution under Article 1.1(a)(1)(iv) of the SCM Agreement . The 
Panel had agreed with Canada that there was no evidence that the Governments of British Columbia 
and Canada require d log suppliers to provide their logs to anyone, or dire ct them to sell those logs 
at any particular price.  Canada  noted that the report was not limited to the items it had just 
discussed . While Canada would not discuss the remaining findings in any detail, the Panel had found, 
for example, that the Department of Commerce 's calculation of benefit for various electricity 
programs had not been consistent with Articles 1.1(b) and 14(d) of the SCM Agreement . Canada  
estimate d that nearly USD 3 billion  had already been collected in duties on Canadian exports of 
softwo od lumber as a result of the Department of Commerce 's errors  – a clear violation of the WTO 
obligations of the United States . Nor was this the first time that the United States ha d imposed trade 
remedy measures on Canadian softwood lumber that had ultimately been found to be inconsistent 
with the WTO agreements . In the face of overwhelming evidence that Canada 's market -based 
mechanisms d id not result in countervailable subsidies, th e United States continue d to treat 
Canadian softwood lumber producers in a manner that was neither unbiased nor objective.  
6.4.  Canada also wished to  address the systemic implications of the U S appeal in this dispute . In a 
statement at the 28 August  2020 DSB me eting, the United States had stated that, despite the 
ongoing Appellate Body impasse, the dispute settlement system still worked . The US behaviour in 
this dispute and in previous disputes contradict ed its statement . Canada  recall ed that all WTO 
Members, in cluding the United States, had agreed to the DSU. It provide d that, when a panel report 
was issued, it c ould be either adopted or appealed . When there was an appeal, the Appellate Body 
had to  issue a report in that appeal . In either case, the DSB would  be in a position to adopt 
recommendations if violations ha d been found . In the event that the respondent d id not bring its 
measures into compliance with its WTO obligations, a complainant could  adopt countermeasures . In 
this dispute, in the absence of a functioning Appellate Body, Canada had offered the United States 
to enter into an appeal -arbitration agreement that would have allowed the United States to seek 
review of the Panel Report if it so wished . Having refused that offer, Canada would have hoped that 
the United States would have allowed the adoption of the Panel Report and implemented its 
recommendations and rulings as soon as possible . By appealing this Panel Report to an Appellate 
Body that it had made non -functional through its blockage of AB member appointments, the United 
States was compounding the unfair treatment accorded to Canadian softwood lumber producers . An 
appeal, in the current circumstances, ha d the effect of denying Canada its right, under the DSU, to 
prompt settlement of the dispute . Canada was surprised that the United States ha d appealed  the 
Panel report given the stated position of the US Trade Representative that there was no need for an 
Appellate Body . In the interests of a clear and predict able settlement of their differences, rather 
than compounding the uncertainty created by the effective suspension of the Appellate Body, Canada 
called on the United States to accept the decision of the Panel and fully implement the 
recommendations of the P anel in this dispute . More broadly, Canada was deeply concerned by the 
US actions , which frustrate d the proper functioning of the dispute settlement system . The United 
States ' behaviour significantly reduce d the security and predictability that Members  collectively 
value d in international trade.  
6.5.  The representative of the United States  said that the United States had notified the DSB of its 
decision to appeal the panel report, in accordance with the DSU. The Panel in this dispute had 
erroneously interpreted and applied numerous provisions of the SCM Agreement, and many of the 
findings i n the panel report build on erroneous Appellate Body interpretations and were deeply 
flawed. The United States would, at the appropriate time, fully explain the errors in the panel report. 
As stated in in its notification to the DSB of the US decision to a ppeal, the United States was open 
to discussions with Canada on the way forward in this dispute. The suggestion that the United States 
had appealed simply to delay this dispute settlement proceeding was utterly without foundation. The 
DSU provided Members the right of appeal, and the United States had availed itself of that right. 
The DSU also established rules governing the conduct of appeals, and for years the Appellate Body 
had failed to abide by those rules. The Appellate Body's failure to follow the ag reed rules had 
undermined confidence in the WTO. It was difficult to maintain support for a rules -based trading 
system in which the adjudicator did not itself follow the rules. The United States remained resolute 
in its view that Members needed to resolve that issue as a priority. But the United States would WT/DSB/M/445  
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  continue to insist that WTO rules be followed by the WTO dispute settlement system, and would 
continue its efforts and its discussions with Members and with the Chair to seek a solution on these 
importa nt issues. The United States had always been a strong supporter of a rules -based 
international trading system and remained so now . 
6.6.  The representative of European Union  said that t his was another dispute that illustrate d the 
grave consequences of the blocka ge of A B appointments since 2017 . That blockage frustrate d the 
essential rights of Members that had been  agreed multilaterally in the DSU . Under the DSU, parties 
to a dispute ha d the right to appeal a panel report and to have their case heard by the Appell ate 
Body. At the same time, under the DSU, the complainant was entitled to the resolution of the dispute 
through adjudication . The EU t ook note of the appeal by the United States  of the panel report in the 
dispute on : "United States – Countervailing Measur es on Softwood Lumber from Canada " (DS533) . 
As a result of this appeal, and pursuant to Article 16.4 of the DSU, the panel report c ould not be 
adopted pending the completion of that appeal . The lack of at least three Appellate Body Members 
was not a legal bar to a Member exercising its right to an appeal . However, Members should be 
mindful that, in the current specific circumstances where the Appellate Body was not operational, 
the decision by a respondent to appeal a panel report could  amount in effect to dispute resolution 
through adjudication being blocked, unless that respondent agree d to the appeal being adjudicated 
upon through appeal arbitration based on Article 25 of the DSU, consistently with the principles of 
the DSU . This was precisely why the EU and other Members ha d put in place the Multi -Party Interim 
Appeal Arbitration Arrangement  (MPIA) , to allow the above -mentioned rights to be preserved in a 
balanced manner, despite the blockage of Appellate Body appointments . In particu lar, the MPIA 
preserve d the right to appel late review of a panel report and the right to have a dispute resolved 
through adjudication . The standard default appeal arbitration procedures, as attached to the MPIA, 
could also be used on an ad hoc  basis by Mem bers who themselves d id not participate in the MPIA . 
However, it would appear, as Members had  just heard in Canada 's statement, that the U nited States 
had not been ready to resort to appeal arbitration procedures based on Article 25 of the DSU . As it 
had stated many times since 2017, the EU expressed  serious concern  about the implications of the 
blockage of Appellate Body appointments . Members  could  now see these implications unfold in 
specific cases . In the absence of a functioning Appellate Body, the EU  invite d Members engaged in 
appeals to resort to the procedures foreseen in the MPIA , which  preserve d the rights of both parties 
under the DSU  in a balanced way . The EU  also wished to reiterate its willingness to find a lasting 
solution to the current impasse, as a matter of priority.  
6.7.  The representative of China  said that his country wished  to register its concern about the U S 
appeal in this dispute, especially given the fact that the United States was the only Member blocking 
the Appellate Body member appointments . China believe d that the multilateral trading system w ould 
be undermined without prompt settlement of disputes . In the long run, t his w ould undermine the 
interests of US businesses . Therefore, China wished  to encourage the United States to rejoin 
negotiation s with a view to resuming the function ing of the Appellate Body as soon as possible.  
6.8.  The representative of Canada  said that , as noted by the EU, his country wished to  underscore 
that Canada  had offer ed the United States to enter into an appeal -arbitration agreement that would 
have allowed the United States to seek review of the Panel Report if it  so wished . The United States 
had refused that offer . Canada  continue d to be surprise d that the United States ha d appealed given 
the stated position of the US Trade Representative that there was no need for an Appellate Body . 
Canada was open to  discuss the issue of the Appellate Body . In the meantime, Canada call ed on the 
United  States to support the dispute settlement system and to implement the recommendations of 
the Panel. 
6.9.  The DSB took note of the statements.  WT/DSB/M/445  
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  7  THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE 
PHILIPPINES  
A. Statement by the Chairman on consultations with Thailand and the Philippines with 
regard to the Recourse to Article 22.2 of the DSU (WT/DS371/32)  
B. Statement by the Philippines  
C. Statement by Thailand  
7.1.  The Chairman  said that under the first sub -item, he wished to make a statement under his own 
responsibility in order to report to delegations on his consultations with Thailand and the Philippines 
in the "Thailand – Cigarettes (Philippines) " dispute (DS371) . His statement was without prejudice to 
the rights and obligations of the parties to this dispute or of any other Member . He recalled that 
these consultations had first been conducted by the previous DSB Chair, Amb.  Walker, prior to the 
5 March  2020 DSB meeting . At that meeting, the matter had be en suspended in order to allow more 
time for consultations . Following his appointment as DSB Chair on 2 0 May 2020, he had been 
consulting with Thailand and the Philippines on this matter . He had held virtual intensive 
consultations with the parties in prep aration for the 29 June 2020 DSB  meeting . Following the 
29 June 2020 DSB meeting, he had continued his intensive consultations with the parties to this 
dispute and had held three meetings to discuss this matter . Immediately after the 29  July 2020 DSB 
meeting, he had held another meeting in -person with the parties to this dispute on 3 0 July 2020. 
Subsequently, he had reported back to the Membership on this matter at the 2 8 August  DSB 
meeting . Since the 2 8 August  2020 DSB meeting, he had continued to con sult with the parties to 
the dispute and had had written exchanges with both parties on this subject . He had then held 
another in -person meeting with the parties to the dispute on 2 3 September  2020 to further discuss 
this matter . Since his consultations we re ongoing, it was not his intention to have a discussion on 
this matter at the present meeting . He hoped that this was agreeable to all Members.  
7.2.  The DSB took note  of the statement.  
7.3.  The Chairman  invited the representative of the Philippines to speak . 
7.4.  The r epresentative of the Philippines  said that his country wished to t hank the Chairman for 
his report . The Philippines reiterate d its sincere appreciation of the Chair and the Secretariat's 
ongoing efforts . The Philippines  also wished to thank the Chair man and the Secretariat for the nine 
questions sent to the parties to this dispute  on 3 August  2020, to which both parties had sent 
responses on 2 8 August  2020. The Philippines and Thailand had also been given the opportunity to 
comment on each other's respon ses on 1 4 September  2020. The Philippines  trusted that these 
responses and comments ha d been helpful in fostering a better understanding of the parties'  
respective positions on the issues before them. The Philippines  also wished to thank the Chair man 
for calling for consultations on 23  September  2020. At these consultation s, the Chair man had  
recounted to the parties  his clear, concise and correct understanding of the facts and circumstances, 
and of the issues in this dispute . The questions posed had obviously been focused in an informed 
way. In this spirit of cooperation and on the Chair man's suggestion, the Philippines had presented 
for consideration a non -exhaustive list of alternative arrangements, contained in document 
WT/DS371/40 dated 3 August  2020 that could allow the parties to fashion a constructive solution 
that would permit the completion of Thailand's appeals, which had been  suspended as a result of 
the non -functioning of the Appellate Body . Any such alternative arrangements should not in any way 
prejudice the parallel rights of the Philippines under the DSU to seek automatic and mandatory 
authorization to suspend concessions . As the Philippines  had set out in its statements made at 
previous DSB meetings under this Agenda item, and in the c onsultations, the Philippines ha d 
remained open, ready, and willing to constructively engage with Thailand . But it should also become 
more clear to the Chair man, and to the DSB, that should Thailand, as the losing party in duly -adopted 
Panel and AB reports , not be able to constructively engage in a solution, then the burden of applying 
the automatic and mandatory rules -based provisions of the DSU w ould become  the duty and 
responsibility of the DSB . At the present  meeting, therefore, the Philippines ask ed the DSB to grant 
the Philippines the authority it sought . The provisions of Article 22.6 of the DSU were clear : "[t]he 
DSB, upon request, shall grant authorization to suspend concessions or other obligations within 
30 days of the expiry of the reasonable period of time unless the DSB decides by consensus to reject 
the request "; and "[i]f the Member concerned objects to the level of suspension proposed, […] the WT/DSB/M/445  
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  matter shall be referred to arbitration ". Therefore, the Philippines believed that the re were only 
two options under the reverse consensus rule of Article 22.6 of the DSU : first, the DSB granting 
authorization to suspend concessions ; or, second, the DSB referring the matter to arbitration . 
7.5.  The DSB took note of the statement  made by the Phil ippines . 
7.6.  The Chairman  invited the representative of Thailand  to speak.  
7.7.  The representative of Thailand  said that her country  wished to take this opportunity to once 
again express Thailand's appreciation for the Chairman's  active engagement in assisting Thailand 
and the Philippines in finding a way forward in this dispute . The consultations  that the Chairman  had 
initiated were permitting a  constructive dialogue between the parties . Thailand remain ed committed 
to continuing this dialogue conducted under the Chairman's  good offices . Thailand ha d made its 
views clear ly known  in its prior statements at the DSB meetings of 5 March , 29 June, 29 July and 
28 August  2020. As Thailand ha d previously indicated, the Philippines' retaliation request was 
without legal foundation because it had been  made long after the expiry of the 30 -day deadline 
under  Article 22.6 of the DSU . It was undisputed that the Philippines had not file d any retaliation 
request by 1 4 June 2012, which was the date on which  the 30 -day deadline in this dispute  had 
expired . Additionally, the Philippines' retaliation request was contrary to the Sequencing Agreement 
concluded by both parties . The Sequencing Agreement  stated that the Philippines first had to 
complete proceedings  under Article 21.5 of the DSU ; only thereafter, if non -compliance was 
determined, c ould the Philippines  request retaliation under Article 22  of the DSU . Thailand noted 
that i n commenting on the nature of sequencing agreements, Japan had correctly noted , in its 
statement at the  29 July 2020 DSB meeting, that: "disputing Members have always respected and 
abode by the terms of the agreement they concluded ".4 Thailand was therefore disappointed that 
the Philippines was attempt ing to disavow the Sequencing Agreement that both parties had 
concluded precisely to avoid these types of procedural problems . Furthermor e, Thailand disagree d 
with the Philippines' position that Article 22.6 of the DSU would force the DSB to authorize retaliation 
despite the obvious fact that it s request  had been  filed almost eight years after the expiry of the 
30-day deadline under Article 22.6  of the DSU . In these circumstances, and given that the 
two appeals under Article 21.5 of the DSU we re still ongoing, there was no possible reading of 
Article  22 of the DSU or of the Sequenci ng Agreement that would allow the Philippines to request 
retaliation prior to the completion of the ongoing appeals  under Article 21.5 of the DSU . Nonetheless, 
Thailand remain ed committed to participating in good faith in the consultations organized by the  
Chairman with the aim of finding a way forward in light of the present circumstances . Thailand was 
pleased with the progress achieved so far in these consultations . Thailand urge d all WTO Members 
to focus on resolving the Appellate Body crisis, which was the root cause of the discussions under 
this Agenda item . Thailand note d that, in other disputes, parties ha d recently filed appeals before 
the Appellate Body despite being fully aware that those appeals w ould not be resolved promptly 
given the insufficien t number of Appellate Body members . This further highlight ed the urgency of 
finding a multilateral solution to the Appellate Body impasse . Thailand look ed forward to continuing 
the multilateral efforts to solve the Appellate Body impasse with a view to pre serving the two -tier 
dispute settlement system of the WTO . Thailand thank ed the Chairman for the opportunity to make 
a statement at the present meeting . Thailand look ed forward to the next steps in the consultations 
facilitated by the DSB Chairman in this dispute.  
7.8.  The DSB took note of the statement  made by Thailand . 
7.9.  The representative of Brazil  said that his country  wished to express its support for the Chairman 
in his efforts to assist the parties in finding a solution to this problem . The current paralysis of the 
Appellate Body could not have been foreseen by Members that had concluded sequencing 
understandings a few years ago . At the same time, however, Members  had to acknowledge that this 
situation amount ed to a change in circumstances that might  render impracticable or impossible the 
performance of any steps of a sequencing understanding that assumed and depended on the 
continuing operation of the Appellate Body . Such steps should not be an excuse for stalling 
indefinitely the resolution of a dispute . The DSU was clear in that the "prompt settlement of 
[disputes] […] is essential to the effective functioning of the WTO and the maintenance of a proper 
balance betwee n the rights and obligations of Members ". Brazil trusted that, with  the Chairman's  
help, the parties w ould, in good faith, move forward in this dispute.  
 
4 Japan's statement at the 29 July 2020 DSB meeting, para. 2.  WT/DSB/M/445  
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  7.10.   The representative of the European Union  said that i n these extraordinary circumstances of 
the Appellat e Body  paralysis , his delegation  called on the parties concerned to seek an agreed 
solution that would preserve the rights of both parties in a balanced manner . The EU w ished  to point 
out that the parties could decide to submit the suspended appeal for com pletion under an appeal 
arbitration procedure pursuant to Article 25 of the DSU, such as the MPIA . Such an appeal arbitration 
procedure could, for all practical purposes, replicate all substantive and procedural aspects of 
appellate review . The EU trusted that the Chair man could assist the parties in reaching such a 
solution . The EU also wished to make  two comments on certain broader legal issues that ha d been 
raised in by other Members . First, t he EU disagree d with the assumption that a request to suspend 
concessions pursuant to Article 22.2 of the DSU could not be automatically granted through negative 
consensus in the DSB . The EU wishe d to refer to its statement made at the DSB meeting of 
29 July 2020 on this matter  regarding the fact  that there w ere pending  appeal proceedings . Second, 
the EU did not agree with the assumption that a request to suspend concessions made  30 days after 
the expiry of the reasonable period of time c ould not be adopted by negative consensus . The EU 
referred to its previous statements on this matter.  
7.11.   The DSB took note of the statements.  
7.12.   The Chairman  said that in light of the importance and the sensitivity of this matter, he would 
continue to consult with the parties to this dispute and that he would report back to d elegations.  
7.13.   The DSB took note  of the statement.  
8  STATEMENT BY AUSTRALIA ON MINIMIZING COVID -19 DISRUPTIONS TO THE DISPUTE 
SETTLEMENT SYSTEM  
8.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
Australia . He then invited the representative of Australia  to speak.  
8.2.  The representative of Australia  said that its statement was on minimizing COVID -19 disruptions 
to the disput e settlement system . Australia wished to deliver its statement on behalf of : Brazil; 
Canada ; Ecuador ; Guatemala ; Hong Kong, China ; Mexico; New Zealand ; Norway ; Peru; Singapore ; 
Switzerland ; Ukraine  and the United Kingdom . As Members  knew well, the COVID -19 pandemic was 
causing significant disruption across the globe and its impact could continue into the foreseeable 
future . His country  wished to extend its sympathies to all Members and to the WTO Secretariat for 
the serious risks that they had  seen to health, the loss of life, and the major social and economic 
crises caused by the coronavirus . As Members had  seen, the WTO dispute settlement system was 
not immune to the impacts of COVID -19. It was encouraging that, since July, delegates ha d been 
able to resume DSB meetings at the WTO premises . However, ongoing restrictions affecting 
international travel and immigration p ut into question the feasibility of physical participation of 
panelists and capital -based delegates at meetings in Geneva into the fut ure. As it st ood, Members 
did not know when they would be able to resume the arrangements for work and travel that had 
existed before the pandemic . Postponing substantive meetings with panels until conditions once 
again allow ed for the physical attendance of international colleagues could therefore mean placing 
disputes on hold indefinitely . During 2020, Members  had witnessed governments, private sector 
organi zations, and domestic and international adjudicative bodies throughout the world adapt t heir 
usual ways of working to continue operating in these difficult conditions . Members had to  ensure 
that the WTO dispute settlement system d id the same in order to remain functional and relevant . 
Australia,  therefore , urged panels to consider actively, i n consultation with parties, flexible 
alternative arrangements to ensure that new disputes and those currently under way c ould continue 
to progress in a timely manner despite the challenge of current restrictions.  
8.3.  Australia  wished to recall that Article 12 .1 of the DSU afford ed panels discretion in the working 
procedures that they adopt ed in individual disputes, after consulting with the principal parties . Panels 
therefore ha d the discretion to determine alternative arrangements that would best serve the 
satisfactory settlement of the matters they were examining, taking into account each dispute 's 
unique context and factors . In addition, Article 12.2 of the DSU require d that panel procedures 
provide sufficient flexibility to en sure high -quality panel reports  while not unduly delaying the panel 
process . To this end, Australia called on panels to exercise their discretion bearing in mind the 
principles of prompt and positive settlement of disputes enshrined in Articles 3.3 and 3.7 of the DSU . 
Some panels ha d already adjusted their procedures to hold substantive meetings virtually through WT/DSB/M/445  
- 20 - 
  video conferencing technology . Australia  welcome d these developments . To ensure the equitable 
operation of the dispute settlement system, however, Members  had to  find solutio ns to enable all 
current and future matters to move forward in one way or another . To facilitate this, Australia  
encourage d the Secretariat to assist panels and Members by outlining a range of practical options 
for conducting substantive meetings through a lternative arrangements that adhere d to the 
requirements of the DSU, including with regard to the confidentiality of proceedings . In undertaking 
this, the Secretariat could consider the ways WTO panels and other international dispute settlement 
bodies ha d modified their hearing procedures . Australia  wished to stress that it was  not calling for 
any departure from the physical hearing format to become the default . Australia  looked forward with 
optimism – as all Members surely did – to the time when it would be possible to resume in -person 
substantive meetings free of the current, necessary restrictions . However, until that time, Members 
had to  find temporary, alternative ways to conduct proceedings while they weather ed the ongoing 
disruptions from the coronavi rus pandemic . An effective, multilateral, dispute settlement system 
played a vital role in preserving the rights and obligations of all Members under the covered 
agreements . Therefore , Members had to  ensure that the current restrictions on their ability to  meet 
in person d id not prevent the proper functioning of the WTO dispute settlement system.  
8.4.  The representative of Japan  said that his country wished to thank Australia for raising this 
important issue under the current circumstances . Japan consider ed it important to examine feasible 
and practical ways to preserve  the functionality of the dispute settlement system to ensure effective 
resolution of disputes in the current COVID -19 situation . In this regard, Japan expressed  
appreciat ion of Australia's statement that dr ew attention of Members to this issue . Based on 
Article  12.2 of the DSU which state d, in part, that Panel procedures should "not unduly delay[] the 
panel process ", Japan fundamentally agree d with examining various ways, including the use of online 
means, to advance panel proce edings . At the same time, under Article 10.1 of the DSU : "the 
interests of the parties to a dispute and those of other Members under a covered agreement at issue 
in the dispute shall be fully taken into account during the panel process ". Japan believe d that  
securing interactive and lively discussions in substantive meetings would be essential for fruitful 
panel proce edings  and high -quality panel reports . Non-virtual, face -to-face discussions were of great 
significance from this perspective . While Japan  recognize d virtual meetings as an option in the 
current COVID -19 situation , face -to-face meetings were preferable especially for substantive 
meetings with disputing parties . In response to the requirements  under the DSU, each panel should 
consult sufficiently with disputing  parties on how to move forward  with proceedings . Each panel 
should also make efforts toward  the parties to strike an appropriate balance between prompt 
settlement of dispute s and protection of due process  rights . This issue should be discussed among 
Members in order to avoid inconsistencies among panels . In considering such possible ways, Japan 
wished  to share some challenges that Japan  had faced in virtual third -party meetings : (i) the need 
for advance clarification of schedules and procedures related to  a virtual meeting, including whether 
there w ould be a Q&A session ; (ii) the need to prevent communication failure s due to poor 
connection ; (iii) the need to secur e simultaneous interpretation for virtual attendees ; and (iv) the 
need to ensur e information security . In addition, Japan  had experienced several virtual third -party 
meetings without Q&A session s. While understanding  the various tec hnical barriers in holding virtual 
meeting s, Japan believe d that it was desirable to secure procedural guarantee s that ensure d 
substantial two -way discussions . In any event, Japan expressed the hope  that other Members which 
had participated in virtual sess ions, as well as  the Secretariat , would  share information and views 
on those meetings, if possible, and especially regarding technical challenges . This might be useful 
for Members wh ich had not had an opportunity to attend a virtual session . Japan hope d to 
constructively discuss further ways t hat could  be applied to panel proceedings, while sharing such 
useful information among Members and reviewing  any problem that would need to be addresse d. 
8.5.  The representative of Guatemala  said that his country wished to thank Australia for its 
statement made on behalf of a group of Members that includ ed Guatemala . More than six months 
had passed since the start of the COVID -19 pandemic . It was a fact that such pandemic ha d impacted 
the functioning of the dispute settlement mechanism . It did not appear that the measures taken 
globally against COVID -19 would allow any time soon to resume the arrangements for work and 
travel in panel proceedings that had existed before the pandemic . This was the reason why 
Guatemala believe d that it was necessary to adapt usual ways of working to continue operating in 
these di fficult conditions . Therefore, Guatemala wished  to underscore the urgency for panels to 
actively consider , in consultation with the disputing parties, flexible alternative arrangements to 
ensure that new disputes and those currently under way c ould continu e to progress in a timely 
manner despite the challenge of current restrictions . Guatemala  also wished  to invite Members , 
regardless of whether they were complaining, defending or third parties in actual or potential dispute WT/DSB/M/445  
- 21 - 
  settlement proceedings , to coope rate with panels in exploring practical options for conducting 
substantive meetings t hrough  alternative arrangements that adhere d to the requirements of the 
DSU. In undertaking this, Guatemala was confident that the Secretariat could assist panels and the 
disputing parties in considering ways in which WTO panels and other international dispute settlement 
bodies ha d modified their hearing procedures.  
8.6.  The representative of India said that t he COVID -19 pandemic ha d caused an unprecedented 
crisis in the global community and India was no exception . The pandemic continue d to spread in 
India at an alarming rate . The total number of cases in India ha d crossed 6  million  and the active 
cases were at around 963 ,000. India wishe d to inform Members that, at the present time , there 
were numerous travel restrictions which impact ed Indian delegations ' ability to travel to Geneva . 
India also underst ood that physical meetings were not possible for the time being , as Switzerland 
maintain ed travel restrictions on account of the COVID -19 pandemic . For India, a party's right to an 
oral hearing was an intrinsic aspect of its due process rights and c ould not be dispensed with, except 
with the agreement of the parties to a dispute . Several provisions of the DSU , including the 
procedure set out in Appendix 3 , expressly provide d for substantive meetings, notably Article 15.1 
of the DSU which ma de an express reference to oral arguments . India note d that Paragraph 1 of 
Appendix 3 was couched in mandatory terms regarding the rights guaranteed to parties and third 
parties in a dispute . A panel c ould not exercise its margin of discretion to truncate these rights 
without the parties' agreement . India also note d that Paragraph 5 of Appendix 3 provide d that: 
"[a]t its first substantive meeting with the parties, the panel shall ask the party which has brought 
the complaint to present its case . Subsequently, and still at the same meeting , the party against 
which the complaint has been brought shall be ask ed to present its point of view " (emphasis added) . 
Further, Paragraph 10 of Appendix 3 provide d that: "in the interest of transparency , the 
presentations, rebuttals and statements referred to in paragraphs 5 to 9 shall be made in the 
presence of the parties " (emphasis added) . Therefore, the importance that the DSU attache d to oral 
hearings was unquestionable . For India, the written submissions and the substantive meetings 
(i.e., oral hearing s) together constitute d the suite of fair processes and due p rocess rights 
guaranteed by the DSU . None of these steps were expendable for an original panel proceeding . The 
advocacy opportunities (including the degree of persuasion and explanation) associated with an oral 
hearing were quite simply not available in ot her means such as a written procedure . India believed 
that m odest extensions of timelines for making submissions or providing for an additional round of 
submissions c ould not be considered as a meaningful substitute for oral hearings unless parties to a 
dispute agree . If written procedures were considered to be equally effective and meaningful as an 
oral hearing by the WTO Membership, the working procedures in Appendix 3 of the DSU would not 
have expressly provided for two substantive meetings . While India noted that Article 3.3 of the DSU 
recognize d the importance of "prompt settlement " of disputes, this d id not mean that such prompt 
settlement c ould whittle away "fundamental " due process rights such as a right to an oral hearing . 
This right was particularl y important for developing countries which were used to presenting 
submissions in person as it provide d an opportunity for further refining and presenting their 
argument s. India consider ed that physical oral hearings were indispensable since such hearings were 
conducive to a contemporaneous oral exchange and observation of demeanour among other 
elements essential to oral advocacy . This was simply  not possible in technologically enabled virtual 
oral hearings . In the case of virtual oral hearings, there were issues of technological limitations like 
failure of the internet connection, camera malfunctions, acoustical problems within the 
videoconferencing rooms and choppy video streams . Such limitations c ould quickly make the 
hearings frustrating or useless . India also note d that there would be complex coordination issues 
during virtual oral hearings for Members who wish ed to involve officials from different  domestic 
departments and regions . Further, there were issues of securi ty and confidentiality for virtual 
hearings . These elements were burdensome for seasoned litigants and were too difficult for 
developing countries . Consequently, physical oral hearings were vital for meaningfully participating 
in dispute settlement proceed ings under the DSU and ultimately for the proper functioning of a WTO 
panel . WTO disputes, being high stakes litigation amongst international actors, demand ed nothing 
less than every procedural right guaranteed by the DSU in light of due process and based on 
agreement of the parties . India c ould not consider that a settlement of the matter ha d been reached 
unless proceedings as guaranteed by the DSU ha d been held . Therefore, India believed  that any 
substantive meeting should be postponed to a reasonable future date when face -to-face substantive 
meeting s at the WTO were feasible.  
8.7.  The representative of South Africa  said that her country wished to thank Australia and the 
co-sponsors of Austral ia's statement for introducing this Agenda item . COVID -19, as Australia ha d 
stated, ha d unleashed a devastating health, economic and social crisis unprecedented in recent WT/DSB/M/445  
- 22 - 
  times . Since the outbreak , the loss of the life was the immediate consequence that go vernments 
had had to grapple with . This eventually led to a number of measures , including confinement 
schemes and lockdowns , aimed at  reduc ing the spread of the virus . COVID -19 ha d forced or would 
likely force governments  to take drastic trade measures in the public interest that were unimaginable 
in normal times . This might  lead to possible disputes as to whether there were violation s of the 
covered agreements . Therefore , South Africa believed  that Members  needed a more s ubstantive 
discussion at a DSB meeting  not only on procedural issues related to panels , but also on the 
substantive impact of COVID -19 on dispute settlement . Developing countries ha d confronted their 
own unique set of challenges , in addition to  their gener al macro -economic instability . Even prior to 
the crisis, developing countries had already been experiencing deepening financial and debt 
vulnerabilities in the context of tepid economic growth, slowing trade, sluggish real investment and 
growing income inequalities . In the a bsence of any fiscal packages, the economic situation in many 
developing countries remain ed serious and ha d had a negative impact on key sectors of the 
economy , including manufacturing and in some cases tourism . The WTO agreeme nts contain ed rules 
governing restrictions on trade . The general rule for trade in goods was that quantitative restrictions 
and import bans were prohibited pursuant to GATT Article XI. However, exceptions for emergency 
and crisis situations were provided f or in terms of GATT Article XI:2(a) in respect of  foodstuffs and 
other product shortages . In addition, regarding  food products, Article 12 of the Agreement on 
Agriculture allow ed for  the imposition of exp ort restrictions in emergency situations . GATT Article XX 
also provide d general ex ceptions , including those necessary to protect human, animal or plant life . 
The GATS also ha d Article 14 . There were also national security ex ceptions under Article XXI of the 
GATT . Therefore, a number of provisions were available . Those ex ceptions contain ed specific 
conditions that had to  be met , including non -discrimination, non -arbitrary  application and not 
impos ing disguised restrictions on trade . These measures should be temporary and suffi cient to 
address the emergency situation . South Africa  also acknowledge d that there were transparen cy 
obligations on Members to notify trade restricti ve measures . However , in many instances, these 
requirements ha d not been met or their notification had occurred only after the fact . Developing 
countries , which had been disproportionately affected by this crisis , should not bear the brunt of 
their lack of capacity to notify measures that ha d been instituted to deal with the pandemic . Given 
the unprecedented challenges presented by COVID -19, South Africa  remain ed concerned that 
legitimate measures taken to address the coronavirus pandemic could  nonetheless be subject to 
dispute settlement proc eedings . In the context of investment treaty  disputes , there seem ed to have 
been calls and support for emergency public health and economic policy measures to be subject to 
international arbitration . A call ha d also been made to suspend the application of such treaties in 
respect of COVID -19 related invest ment measures . South Africa believed  that it was equally 
necessary , in the WTO context , for Members to apply the utmost restraint when dealing with 
COVID -19 related trade measures . There was a need to cons ider to what extent a peace clause or 
waiver , including in the context of the TRIPS Agreement, might  be introduced to deal with the 
potential of legitimate  public interest  measures being challenged in the WTO . For example , there 
had been  a number of instanc es where peace  clauses ha d been implemented . For example , regarding  
Article 13 of the Agreement on Agriculture, Members had initially foreseen a peace clause . For public 
stockholding , the 20 -page Ministerial Conference Decision as well as the 2014 General Council 
Decision ma de clear that such programmes shall not be challenged in the dispute settlement 
mechanism . Therefore, South Africa believed that  this discussion was timely and that there was a 
need to have a proper discussion and ref lection at a DSB meeting on how Members would  deal with 
the specific and challenging circumstances presented by COVID -19. 
8.8.  The representative of the United States  thanked Australia for its statement made at the present 
meeting, which raised issues of system ic importance. The United States first wished to extend its 
sympathies to all those who had directly borne the impact of the novel coronavirus pandemic. The 
global pandemic had caused significant disruptions to the work of the WTO, including panel 
proceedi ngs. Travel restrictions imposed by WTO Members had made it difficult to schedule a 
substantive meeting of the panel with parties in Geneva. In some instances, this had resulted in a 
postponement of the meeting. Under these extraordinary circumstances, the  United States 
encouraged each panel to consult with the parties to the dispute on how to proceed, bearing in mind 
the views of the parties and the relevant provisions of the DSU. As part of the consultation process, 
it was incumbent on each panel to engag e with the parties on the health, travel, and technological 
restrictions that affected the parties to a dispute. The United States encouraged panels to undertake 
this consultation before  taking a decision on how to move forward. Before the scheduling of a panel 
meeting, it would be appropriate for a panel to consult with the parties on the travel restrictions that 
might limit a party's ability to attend a meeting in Geneva. The same logic applied if a panel were 
to consider an alternative arrangement to an in-person meeting. In that situation, it would likewise WT/DSB/M/445  
- 23 - 
  be appropriate for a panel to consult with the parties on the constraints that might limit a party's 
ability to participate meaningfully in the arrangement under consideration. For example, the United  
States noted that several parties and third parties in ongoing disputes had raised pertinent concerns 
with the possibility of holding a "virtual meeting ". These included not only DSU considerations but 
the effect on a party's right of participation, including situations where health or technology 
considerations precluded or seriously undermined a party's ability to participate remotely. The 
circumstances o f each dispute and each party would vary. It would be misguided for all panels to 
adopt a single solution to the challenge posed by the global pandemic to the work of panel 
proceedings. As WTO panels navigated these extraordinary circumstances, the United States 
encouraged each panel to consult with the parties to the dispute and to consider carefully the 
feasibility and implications of a possible course of action before  taking a decision . 
8.9.  The representative of Nigeria , speaking on behalf of the African Gro up, thank ed Australia for 
its statement made under this Agenda item . The African Group welcome d discussions in this area , 
as the COVID -19 pandemic ha d forced some governments and w ould likely force other governments 
to take drastic trade measures that were unimaginable in normal times and which m ight eventually 
lead to dispute s in the near future . As this was the first time that Nigeria heard Australia's  statement 
it took note of comments made by Australia and other Members under  this Agenda item . At this 
stage, the African  Group would request that Australia's  statement be made available to enable the 
African Group  to conduct a more substantive discussion in this subject a rea based on the DSU 
provisions . 
8.10.   The representative of China  said that his country wa s well aware of the continuing difficulties 
posed by the ongoing COVID -19 pandemic, both in terms of public health concerns and impact on 
working conditions, and consequen tly over legal proceedings . Nevertheless, the prompt resolution 
of disputes remain ed at the core of the WTO dispute settlement system , as provided for in  
Article s 3.3 and 12.2 of the DSU . In light of this, China consider ed it fundamental to provide certainty 
as to dispute settlement proceedings in order to avoid any undue delay in the settlement of any 
dispute . While addressing legitimate public health interests, it was equally necessary to preserve the 
protection a fforded by the WTO legal framework against unjustified trade restrictions, and to keep 
the global trade system functioning during a period of economic downturn . China note d that some 
panels ha d opted for flexibility so as to avoid excessive delays in the proceedin gs. China support ed 
and encourage d adjudicators and the Secretariat to do so under the present extraordinary 
circumstances.  
8.11.   The representative of the European Union  said that his delegation wished to  thank Australia 
for its statement and for p lacing  this important issue on the Agenda of the present meeting . As a 
general observation, the EU t ook the view that the WTO dispute settlement system had to  continue 
its normal operations as much as possible, taking into account the need to ensure the safety o f 
persons involved and the restrictions put in place by the relevant authorities to that end . Over the 
past few months , governments, international organizations and also tribunals ha d managed to 
perform their functions, despite the health -related restricti ons. This had mainly been possible thanks 
to the available means of remote communication . This meant that people could meet and work 
together even when in -person meetings were not possible . The same means of communication 
allowed for the maintenance of dis pute settlement operations, in a manner consistent with the DSU . 
In particular, Covid -19 should not indefinitely paraly ze the WTO dispute settlement system because 
it was considered that in -person hearings should not be held for public health reasons  or du e to 
related travel restrictions . This was why the EU welcome d the recent decisions of panels to conduct 
"virtual " hearings . In the current specific circumstances, this str uck the right balance between the 
requirements of prompt settlement of disputes and due process . The EU w ished to  invite other panels 
to adopt similar procedures in similar circumstances . Indeed, once the period within which hearings 
would normally be expected to take place had clearly passed, and if there was little prospect of 
normal operation resuming within the immediately foreseeable future, virtual hearings had to be 
organi zed instead . The EU  would expect that this be done on an even -handed basis in all cases, for 
all Members . While panels ha d discretion  when it c ame to their working procedures, as indicated in 
Article 12.1 of the DSU, including organi zing virtual hearings, that discretion was not completely 
unfettered . In particular, panels had to  ensure compliance with all of the applicable principles r elating 
to dispute settlement, including prompt settlement, and that consideration was valid for all disputes . 
The EU invite d all parties involved to cooperate with panels so that they c ould discharge their 
functions as envisaged by the DSU despite the pan demic . The EU  was encouraged by the recent 
panel decisions to conduct virtual hearings . The EU  expect ed similar procedures to be adopted in 
other cases, as long as in -person meetings were considered not possible.  WT/DSB/M/445  
- 24 - 
  8.12.   The representative of Australia  said that his country wished to  thank Members for their 
detailed and thoughtful engagement on this important systemic issue  at the present meeting . Picking 
up on issues raised regarding the importance of consultation with the parties, Australia  would of 
course expect panels to consult with parties in proposing flexible arrangements, consistent with the 
DSU. But, given how far in the future it could be until Members could  resume the traditional format 
for meetings, Australia was encouraged to hear a number of Mem bers noting how they too wish ed 
to explore actively how the dispute settlement system c ould operate to preserve all Members ' rights 
– including the right to prompt and positive settlement of disputes . There was also, in the  discussion, 
a concern about "one size fits all " solution s. Australia wished to  emphasi ze that there would need to 
be – as Australia had  made clear in its statement – a taking into account of each dispute 's "unique 
context and factors ". That would be Australia's  proposed approach . In respect of Nigeria 's request, 
Australia  would of course circulate its statement  to Members . 
8.13.   The DSB took note of the statements . 
9  PROPOSED NOMINATIONS FOR THE INDICATIVE LIST OF GOVERNMENTAL AND 
NON-GOVERNMENTAL  PANELISTS (WT/DSB/W/669)  
9.1.  The Chairman  drew at tention to document WT/DSB/W/669 which contained additional names 
proposed by New Zealand and Pakistan, respectively, for inclusion on the Indicative List of 
Governmental and Non -Governmental Panelists, in accordance with Article  8.4 of the DSU . He 
propose d that the DSB approve the names contained in document WT/DSB/W/669.  
9.2.  The DSB so agree d. 
10  APPELLATE BODY APPOINTMENTS : PROPOSAL BY AFGHANISTAN ; ANGOLA ; 
ARGENTINA ; AUSTRALIA ; BANGLADESH ; BENIN ; PLURINATIONAL STATE OF BOLIVIA ; 
BOTSWANA ; BRAZIL ; BURKINA FASO ; BURUNDI ; CABO VERDE ; CAMEROON ; CANADA ; 
CENTRAL AFRICAN REPUBLIC ; CHAD; CHILE ; CHINA ; COLOMBIA ; CONGO ; COSTA RICA ; 
CÔTE D'IVOIRE ; CUBA; DEMOCRATIC REPUBLIC OF CONGO ; DJIBOUTI ; DOMINICAN 
REPUBLIC ; ECUADOR ; EGYPT ; EL SALVADOR ; ESWATINI ; THE EUROPEAN UNI ON; GABON ; 
THE GAMBIA ; GHANA ; GUATEMALA ; GUINEA ; GUINEA BISSAU ; HONDURAS ; HONG KONG, 
CHINA ; ICELAND ; INDIA ; INDONESIA ; ISRAEL ; KAZAKHSTAN ; KENYA ; REPUBLIC OF 
KOREA ; LESOTHO ; LIECHTENSTEIN ; MADAGASCAR ; MALAWI ; MALAYSIA ; MALDIVES ; 
MALI; MAURITANIA ; MAURITIUS ; MEXICO ; REPUBLIC OF MOLDOVA ; MOROCCO ; 
MOZAMBIQUE ; NAMIBIA ; NEPAL ; NEW ZEALAND ; NICARAGUA ; NIGER ; NIGERIA ; NORTH 
MACEDONIA ; NORWAY ; PAKISTAN ; PANAMA ; PARAGUAY ; PERU; QATAR ; RUSSIAN 
FEDERATION ; RWANDA ; SENEGAL ; SEYCHELLES ; SIERRA LEONE ; SINGAPORE ; SOUTH 
AFRICA ; SWITZERLAND ; THE SEPARATE CUSTOMS TERRITORY OF TAIWAN, PENGHU, 
KINMEN AND MATSU ; TANZANIA ; THAILAND ; TOGO; TUNISIA ; TURKEY ; UGANDA ; 
UKRAINE ; UNITED KINGDOM ; URUGUAY ; THE BOLIVARIAN REPUBLIC OF VENEZUELA ; 
VIET NAM ; ZAMBIA AND ZIMBABWE (WT/DSB/W/609/REV.18)  
10.1.   The Chairman  said that this item was on the Agenda of the present meeting at the request of 
Mexico, on behalf of a number of delegations . He then drew attention to the proposal contained in 
document WT/DSB/W/609/Rev.18 and invited the  representative of Mexico to speak . 
10.2.   The representative of Mexico , speaking on behalf of the co -sponsors of the joint proposal 
contained  in document  WT/DSB/W/609/Rev.18 , said that the delegations in question had agreed to 
submit the joint proposal dated  18 June 2020 to launch the AB selection processes . Her delegation, 
on behalf of 121 Members, wished to make the following statement . The extensive number of 
Members submitting this joint proposal reflected a common concern with the current situation of the 
Appellate Body , which  was seriously affecting the overall dispute settlement system against the best 
interest of WTO Members . Members had a responsibility to safeguard and preserve the Appellate 
Body, the dispute settlement system and the multilateral trading system . Thus, it was the Members' 
duty to launch the AB selection processes without further delay as set out in the joint proposal, 
which sought to : (i) start six selection processes : one process to replace Mr Ricardo 
Ramírez -Hernández , whose second term had expired on 3 0 June 2017; a second process to fill the 
vacancy that had occurred following 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 ha d expired 
on 11 December  2017; a fourth process to replace Mr Shree Baboo Chekitan Servansing, whose WT/DSB/M/445  
- 25 - 
  four-year term of office had expired on 3 0 September  2018; a fifth process to replace Mr Ujal Singh 
Bhatia, whose second term had expired on 1 0 December  2019; and a sixth process to replace 
Mr Thomas R.  Graham whose second term had expired on 1 0 December  2019; (ii) to establish a 
Selection Committee ; (iii) to set a deadline of 30 days for the submission of candidacies ; and (iv) to 
request that the Selection Committee issue its recommendation within 60 days after the deadline 
for nominations of candidates . The proponents were flexible regarding the deadlines for the AB 
selection processes . However, they believed that Members should consider the urgency of the 
situation . They continued to urge all Members to support this proposal in the interest of the 
multilateral trading system and the dispute settlement system . 
10.3.   The representative of  the European Union  said that his delegation wished to refer to the EU 
statements made on this issue at previous DSB meetings, starting in February  2017, as well as to 
its statements made at the General Council meetings, including at the 9 December  2019 General 
Council meetin g. Since 1 1 December  2019, the WTO no longer guaranteed access to a binding, 
two-tier, independent and impartial resolution of trade disputes . This was in clear breach of the WTO 
Agreements . As the EU had stated repeatedly, Members had a shared responsibil ity to resolve this 
issue as soon as possible, and to fill the outstanding vacancies as required by Article 17.2 of the 
DSU. The EU thanked all Members that had co -sponsored the proposal to launch the AB selection 
processes . The EU invited all other Member s to endorse this proposal . 
10.4.   The representative of  the United Kingdom  said that his country continued to support the 
proposal for the launch of the AB selection processes . The United Kingdom wished to refer to its 
statements made at previous DSB meetings under this Agenda item . The United Kingdom also 
supported the statement made by Mexico on behalf of all co -sponsors . The United Kingdom 
continued to be concerned that the WTO Membership had not been able to launch the AB selection 
processes . Membe rs were  currently seeing the increasingly frequent impairment of right s arising 
from this situation . This could not be in the interest of any Member or the system more broadly . The 
United Kingdom had listened carefully to the concerns raised and underst ood the many challenges 
in agreeing on a reform . However , the United Kingdom  continue d to view two tier dispute settlement 
with the support of all Members as a central pillar of the multilateral trading system . The United 
Kingdom  called on all Members to enga ge in a solutions -based discussion on reform.  
10.5.   The representative of Brazil  said that his country wished to thank Mexico for having presented  
the proposal contained  in document  WT/DSB/W/609/Rev.18 on behalf of its co-sponsors . Brazil 
wished to refer to its statements made at previous DSB meetings under this Agenda item . Brazil 
stood ready to engage with all Members and to discuss a multilateral, long -term solution to the 
current AB impasse.  
10.6.   The representative of India said that his country wished to refe r to its statements made at 
previous DSB meetings on this matter . India wished to reiterate its serious concerns regarding the 
DSB's inability to commence the AB selection processes . Since 1 1 December  2019, the Appellate 
Body was no longer available to review panel reports . The binding , two-stage, impartial dispute 
settlement system, which was the central element in providing security and predictability to the 
multilateral trading system, was a core priority for India . India st ood ready to engage in a 
constructive dialogue with Members to reach a shared understanding of the concerns raised and to 
agree to pragmatic solutions in the interests of all Members.  
10.7.   The representative of Canada  said that his country supported the statement made by Mexico, 
and tha t it shared the concerns expressed by other Members at the present meeting . Canada invited 
WTO Members that had not yet co-sponsored the proposal contained  in document  
WT/DSB/W/609/Rev.18 to consider joining the 121 Members calling for the launch of the AB  
selection processes . The critical mass of WTO Members behind this proposal was a clear testimony 
to the importance that they all accorded to a fully functioning Appellate Body as an integral part of 
the dispute settlement system . The fact that the Appellate Body could not hear new appeals was of 
great concern . Canada reiterated that it was fully committed to discussions on matters related to 
the functioning of the Appellate Body . Canada's priority remained to find a long -lasting multilateral 
resolut ion to the impasse that covered all Members, including the United States . In the meantime, 
Canada and 23 other WTO Members had established the Multi -Party Interim Appeal -Arbitration 
Arrangement (MPIA) as a contingency measure to safeguard their rights to b inding two -stage dispute 
settlement in disputes amongst themselves . WT/DSB/M/445  
- 26 - 
  10.8.   The representative of South Africa  said that her country thank ed Mexico for the statement 
made  on behalf of 121 Members , which South Africa supported . South Africa  called for the need to 
resolve the current impasse and find a permanent solution to the appointment of the members of 
the Appellate Body. A functional dispute settlement system was a cornerstone of the multilateral 
trading system and was essential to the functioning of the WTO . South Africa  wished to recall its 
statements made at previous DSB meetings under this Agenda item . South Africa reiterate d that the 
biggest risk related to  a dysfunctional Appellate Body was borne by smaller WTO Members who were 
likely to be subjected to unilateralism and power dynamics . Without the Appellate Body, the WTO 
dispute settlement system w ould lose much -needed predictability and this in turn ha d serious 
consequences for future rulemaking  in the WTO . Therefore , a multilateral solution was urgent and 
had to address the concerns of all Members, including the African Group's concern about accessibility 
of the dispute settlement system . Therefore , South Africa  called on all Members to ensure that they 
discharge d their collective duty to select and appoint Appellate Body members as soon as possible.  
10.9.   The representative of Norway  said that his country wished to refer to its statements made at 
previous DSB meetings under  this Agenda item . Norway w ould continue to urge the United States 
to show responsibility, and to participate in the Members'  shared obligation under Article 17.2 of the 
DSU to fill vacancies in the Appellate Body as they ar ose. Until this happen ed, Members had to  keep 
the item on the Agenda  of DSB meetings  and to call for meaningful discussion  on this matter . Norway 
wished  to thank Mexico for its continued determination in the coordination of th e proposal  contained  
in document  WT/DSB/W/609/Rev.18 . 
10.10.   The representative of Switzerland  said that her country wished to refer to its statements 
made at previous DSB meetings on this matter . As time passe d, Members'  commitment to resolving 
the current impasse must be maintained . Switzerland  urged all Members to engage constructively 
in order to find concrete solutions . Switzerland continue d to be committed to working with all 
Members towards that goal . Switzerland's  priority remain ed that the appellate stage c ould fully 
function again, to the benefit of the entire  Membership.  
10.11.   The representative of Nigeria , speaking on behalf of the African Group , said that they wished 
to thank Mexico for its statement on the proposal for appellate body appointments . The African 
Group  also wished to  refer to their statements made at previous DSB meetings under this Agenda 
item. The African Group  expressed regret that up to now the DSB ha d failed in the performance of 
its function under Article 17.2 of the DSU which clearly state d that: "[v]acancies shall be filled as 
they arise ". Nigeria  recognize d the fact that the WTO dispute settlement system was a central 
element in providing security and predictability of the multilateral trading system . Therefore , Nigeria 
wished to  underscore the importance for Members of  tasking themselves with guarantee ing and 
preserv ing the effective functioning of the Appellate Body, as it was the fundamental pill ar of the 
WTO and the multilateral trading system . All Members recognize d its importance . This was evidenced 
by the undertaking under the DSU . The extensive number of Members that had submitt ed the joint 
proposal contained  in document  WT/DSB/W/609/Rev.18 reflect ed a common concern with the 
current situation of the Appellate Body impasse that was seriously  affecting its function ing and that 
of the overall dispute settlement system against the best interests of WTO Members . Members ha d 
the responsibility to safeguard and preserve the Appellate Body, the dispute settlement system and 
the multilateral trading system . Thus, it was the  duty of Members to launch the AB selection 
processes without further delay , as set out in the joint proposal which sought to : (i) start the six 
selection processes ; (ii) establish a selection committee ; (iii) set a deadline of 30 days for the 
submission of candidates ; and (iv) request that the selection committee issue its recommendation 
within 60 days after the deadline for nomination of candidates . At this point, there was a need for 
all Members to consider the urgency of this situation in the interest of the multilateral trading system 
and the dispute settlement system because the WTO no longer guarantee d access to a binding, 
two-tier, independent and impartial resolution of trade disputes . The African Group wished to thank 
all Members that had co -sponsored this proposal to launch the AB selection  processes and 
encourage d all other Members to end orse this proposal.  
10.12.   The representative of Thailand  said that a s a co -sponsor, her country support ed the 
statement made by Mexico on behalf of 121 co - sponsors to fill the vacancies in the Appellate Body . 
Thailand, like other Members, ha d strongly advocated  for a solution to the Appellate Body impasse 
from the beginning of the crisis . Thailand remain ed committed to the two -tier system of WTO dispute 
settlement provided for in the DSU, which was necessary to provide security and predictability to 
the multilat eral trading system . Due to the current impasse, a system without the possibility of 
review by the Appellate Body affect ed the ability of Members to secure a positive solution to their WT/DSB/M/445  
- 27 - 
  disputes . As one of the Members with pending appeals, Thailand 's rights ha d been impaired as a 
result of the Appellate Body impasse . Thailand's  priority remain ed to restore a fully functioning 
dispute settlement system in order to preserve the rights and obligations of WTO Members . Thailand 
strongly urge d all Members to  engage in discussions and to identify a long -term solution to this 
problem.  
10.13.   The representative of Singapore  said that his country wished to thank Mexico for its 
statement . Singapore wished to refer to its statements made at previous DSB meetings on this 
matter. Singapore reiterated its strong systemic interest in the maintenance of the two -tier binding 
WTO dispute settlement mechanism that was underpinned by negative consensus . The unblocking 
of the AB selection processes had to remain of paramount priorit y for all Members . Singapore urged 
all Members, including the United States, to constructively engage in finding a lasting multilateral 
solution . 
10.14.   The representative of Japan  said that his country wished to refer to its statements made at 
previous DSB meeti ngs under this Agenda item . Japan supported the proposal  contained  in 
document  WT/DSB/W/609/Rev.18 . Japan fully share d the sense of urgency expressed by  other 
Members regarding the need for  an expeditious reform of the WTO dispute settlement system . 
Beyond the current impasse, taking its own experience into consideration, Japan consider ed it a top 
priority to reform the WTO dispute settlement system in a manner that would serve to achieve a 
long-lasting solution to the Appellate Body impasse . As Japan had pointed out many times under 
this Agenda item and as Members had discussed under Agenda item 8 of the present meeting , 
Members, as owners of the system, need ed to be creative when facing a standstill . To that end, 
Japan would spare no effort in collaborat ing with other WTO Members.  
10.15.   The representative of Korea  said that his country  support ed the statement made by Mexico 
based on the joint proposal  contained  in document  WT/DSB/W/609/Rev.18 . Korea urge d all 
Members to engage const ructively in the relevant discussions to resolve th is important issue as soon 
as possible.  
10.16.   The representative of New Zealand  reiterated his country's support for the co -sponsored 
proposal contained  in document  WT/DSB/W/609/Rev.18 and wished to refer to his country's 
statements made at previous DSB meetings on this matter . New Zealand continued to urge all 
Members to engage, constructively, on the issues with a view to urgently addressing this serious 
situation . 
10.17.   The representative of China  said that his c ountry  support ed the statement made by Mexico 
on behalf of 121 Members . China wished to  refer to its statements  made at previous DSB meetings 
under this Agenda item , and to reiterate its firm support for the restoration of the Appellate Body . 
Filling the v acancies in the Appellate Body was a legal obligation that should be b orne by the e ntire 
Membership . Nothing could serve as an excuse . The fact that the negotiating and monitoring pillars 
of the WTO need ed to be reinforced was not an excuse  to dismantle the Appellate Body and cripple 
the dispute settlement system . The cure c ould not be more harmful  than the problem . While the 
Appellate Body continue d to be paralyze d, the violation of current trade rules c ould easily escape 
from sanctions . The lack of multilateral enforcement w ould eventually impact the interest of 
Members for negotiating new rules . In this regard, without a strong dispute settlement system, the 
negotiating and monitoring pillars c ould not genuinely be reinforced . Moreover, th e fact that disputes 
continue d to flow into the WTO dispute settlement system and that various means ha d been adopted 
to cope with the Appellate Body 's paralysis d id not mean  that the WTO dispute settlement function ed 
as usual . The system 's continued popul arity was premised on an expectation that the Appellate Body 
would be restored soon . Different damage control measures, such as non -appeal agreement s, were 
meant to minimize the legal uncertainties, but c ould not replace the Appellate Body . These interim 
measures were not without cost and d id not work for all Members . If Members  let the status quo to 
become the new normal, a collapse of the entire system w ould be unavoidable . The security and 
predictability of the multilateral trading system t hat Members ha d enjoyed for decades w ould be 
gone forever . In light of this, maintaining a two -tier, independent and binding dispute settlement 
system should remain the priority of the entire  Membership . China called on every Member , including 
the United S tates, to constructively participate in solution s-based consultations with a view to 
restoring the Appellate Body in the near future . China st ood ready to further engage with other 
stakeholders on this urgent matter.  WT/DSB/M/445  
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  10.18.   The representative of Hong Kong, China  said that his delegation support ed the statement 
made  by Mexico and w ished to refer to its statements made at  previous DSB meetings  on this matter.  
10.19.   The representative of the United States  said that as the United States had explained in 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 remained unaddressed. Instead, Members should 
consider how to achieve meaningful reform of the dispute settlement system. The US view across 
multiple US Administrations had been clear and consistent: when the Appellate Body overreached 
and itself broke WTO rules, it undermined the rules -based trading system. The Appellate Body's 
abuse of the limited authority given by Members  damaged the interests of all WTO Members who 
cared about a WTO in which the agreements were respected as they had been negotiated and 
agreed. Earlier in 2020, the Office of the US Trade Representative had published a Report on the 
Appellate Body of the Wo rld Trade Organization, detailing how the Appellate Body had failed to apply 
WTO rules as agreed by WTO Members, imposing new obligations and violating Members' rights.5 
The United States encouraged Members to review the Report. As the United States had e xplained 
repeatedly, the fundamental problem was that the Appellate Body had not respected the current, 
clear language of the DSU. Members could 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. The United States had actively sought 
engagement from Members on these issues. Yet, some Members had remained unwilling to admit 
there was even a problem, much less engage in a deeper discussion of the Appellate Body's failures. 
And rather than seeking to understand why the Appellate Body had departed from what Members 
had agreed, these Members and others had redirected the focus and energies of the Membersh ip to 
pursue an arrangement that would, at best, perpetuate the failings of the Appellate Body.6 
Nevertheless, the United States was determined to bring about real WTO reform. Members had to 
ensure that the WTO dispute settlement system reinforced the WTO's critical negotiating and 
monitoring functions, and did not undermine those functions by overre aching and gap -filling. As 
discussions among Members continued, the dispute settlement system continued to function. The 
central objective of that system remained unchanged: to assist the parties to find a solution to their 
dispute. As before, Members had many methods to resolve a dispute, including through bilateral 
engagement, alternative dispute procedures, and third -party adjudication. And, as discussed under 
Agenda item 6, the United States was open to further discussions with Canada with respect to th e 
panel report in the dispute "United States – Countervailing Measures on Softwood Lumber from 
Canada " (DS533). Parties should make efforts to find a positive solution to their dispute, consistent 
with the aim of the WTO dispute settlement system. The Unit ed States would continue to insist that 
WTO rules be followed by the WTO dispute settlement system. The United States would continue its 
efforts and its discussions with Members and with the Chair to seek a solution to these important 
issues . 
10.20.   The represent ative of Indonesia  said that his country wishe d to refer to  its statements made  
at previous DSB meetings under this  Agenda  item. The current crisis surrounding the appointment 
of Appellate Body members ha d resulted in the inability of the WTO dispute settlement system to 
provide a two –tier resolution of disputes among Members . In this regard, WTO Members should 
acknowledge  that adverse impact s on the positive solution of disputes had occurred . Cases had bee n 
appealed into the void and  the current crisis had  led to a backlog of cases . Some Members might 
expect th at MC–12 would  serve as  a milestone to reactivate the  Appellate Body . However, 
considering the uncertainty due to the pandemic and the growing advers e impact s of the current 
crisis on this Organization, Indonesia believed  that Members should not delay  the resolution of  this 
crisis and should commit  to reach ing a solution as soon as possible . Indonesia , once again , urged 
all Members to provide their meaningful attention, willingness, and commitment to resolve this issue.  
10.21.   The representative of Mexico , speaking  on behalf of the 121 co -sponsors of the joint proposal  
contained  in document WT/DSB/W/609/Rev.18 , expressed regret that for the thirty -sixth occasion, 
Members had still not been able to launch the AB selection processes and had thus continuously 
failed to fulfil their duty as Members of this Organization . The fact that  a Member might have 
 
5 United States Trade Representative, Report on the Appellate Body of the Wo rld Trade Organization 
(February 2020), available at https://geneva.usmission.gov/wp -content/uploads/sites/290/AB -
Report_02.11.20.pdf.  
6 See US Statement at the June 29, 2020, Meeting of the Dispute Settlement Body (Item 13), available 
at: https://geneva.u smission.gov/wp -content/uploads/sites/290/Jun29.DSB_.Stmt_.as -
deliv.fin_.public13218.pdf.  WT/DSB/M/445  
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  concerns about certain aspects of the functioning of the Appellate Body should not serve as a pretext 
to impair and disrupt its work as well as the work of the dispute settlement system  in general . There 
was no legal justification for the current blockage of the AB selection processes, which was causing 
concrete nullification and impairment for many Members . As Article 17.2 of the DSU clearly stated : 
"[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 due to the continued failure to act at the 
present meeting, the Appellate Body would continue  to be unable to perform its functions, against 
the best interest of all Members . 
10.22.   The representative of Mexico  said that  her country wished to refer to its statements made 
at previous DSB meetings under this Agenda item . Mexico expressed regret that there still was no 
consensus to launch the AB selection processes  that would allow Members  to fulfil their obligation 
under Article 17.2 of the DSU and , thus,  to rely on a fully functioning dispute settlement system . As 
Mexico had noted at the most recent DSB meetings, all ongoing disputes were being affected . This 
undermined the right to appellate review  for all Members . Mexico called on those  Members that had 
not yet done so to support this proposal . Mexico reiterate d its willingness to engage in discuss ions 
with a view to achieving consensus and finding a solution to overcome this impasse.  
10.23.   The Chairman  thanked delegations for their statements . He said that in the past, the DSB 
would take note of the statements expressing the respective positions, which wo uld be reflected in 
the minutes of this meeting . He said that this matter required a political engagement on the part of 
all WTO Members . 
10.24.   The DSB took note of the statements.  
__________