RESTRICTED  
  
WT/DSB/M/428  
 
25 June 2019  
(19-4287) Page: 1/42 
Dispute Settlement Body  
26 April 2019    
 
MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 26 APRIL 2019  
Chairman: H.E. Dr  David Walker (New Zealand)  
Prior to the adoption  of the Agenda , the representative of the Bolivarian Republic of Venezuela  said 
that his delegation  wished to make a short statement for the recor d to the effect that Venezuela was 
not asking to modify  the proposed Agenda of the present meeting to request an  inclusion of  an item . 
However, Venezuela  wished to reserve its right to do so at any future DSB meeting. Subsequen tly, 
Japan said that it wished to include  on the proposed Agenda an item under "Other Business" 
regarding its communication contained in Job/DSB/3. T he Agenda  was adopted  as amended.  
Following  the adoption of the Agenda , the representative of Peru, speakin g on behalf of Argentina, 
Brazil, Canada, Chile, Colombia, Costa Rica, Guatemala, Honduras, Panama and Paraguay said that 
the members of the Lima Group supported the functioning of the DSB at the present meeting. 
However, the ir Governments  wished to indica te that they did not recognize the legitimacy of Nicol ás 
Maduro's regime nor that of its representatives. The representative of Venezuela  said that th e DSB  
was not the appropriate forum to discus s this matter.  The representative of the Russian Federation  
said that her country supported the legitimate government of Nicolás Maduro  and underline d that 
the WTO was not the appropriate  international forum vested with the authority to discuss issues 
raised by the members of the Lima Group .  
Table of Contents  
1   SURVEILLANCE OF IMPLEMENTATION OF RE COMMENDATIONS ADOPTE D  
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. Europea n Communities – Measures affecting the approval and marketing of  
biotech products: Status report by the European  Union  ................................ ...........................  5 
D. United  States – Anti-dumping and countervailing measures on large residential  
washers from Korea: Status report by the United  States  ................................ ..........................  6 
E. United  States – Certain methodologies and their application to anti -dumping proceedings 
involving China: Status report by the United  States  ................................ ................................ . 7 
F. Indonesia – Measures concerning the importation of chicken meat and chicken  
products: Status report by Indonesia ................................ ................................ .....................  8 
G. United  States – Anti-dumping measures on certain oil country tubular goods  
from Korea: Status report by the United  States  ................................ ................................ ...... 8 
H. Indonesia – Importation of horticultural products, animals and animal  
products: Status report by Indonesia ................................ ................................ .....................  9 WT/DSB/M/428  
 
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  2   UNITED  STATES – CONTINUED DUMPING AND S UBSIDY OFFSET ACT OF  2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE DSB  ........................  10 
A. Statement by the European  Union  ................................ ................................ .................... 10 
3   EUROPEAN  COMMUNITIE S AND CERTAIN MEMBER  STATES – MEASURES A FFECTING 
TRADE IN LARGE CIVIL  AIRCRAF T: IMPLEMENTATION OF  THE RECOMMENDATIONS  
ADOPTED BY THE DSB  ................................ ................................ ................................ .... 11 
A. Statement by the United  States  ................................ ................................ ....................... 11 
4   INDONESIA – SAFEGUA RD ON CERTAIN IRON O R STEEL PRODUCTS  ........................  12 
A. Communication from Indonesia  ................................ ................................ ........................ 12 
5   EUROPEAN UNION – ANTI-DUMPING MEASURES ON CERTAIN COLD -ROLL ED FLAT 
STEEL PRODUCTS FROM RUSSIA  ................................ ................................ ....................  14 
A. Request for the establishment o f a panel by the Russian Federation  ................................ .....14 
6   QATAR – CERTAIN MEA SURES CONCERNING GOO DS FROM THE UNITED A RAB 
EMIRATES  ................................ ................................ ................................ ......................  14 
A. Request for the establishment of a panel by the United Arab Emirates  ................................ ..14 
7   CHINA – DOMESTIC SU PPORT FOR AGRICULTUR AL PRODUCERS  ..............................  17 
A. Report of the Panel ................................ ................................ ................................ ......... 17 
8   RUSSIA – MEASURES C ONCERNING TRAFFIC IN  TRANSIT  ................................ ........  19 
A. Report of the Panel ................................ ................................ ................................ ......... 19 
9   KOREA – IMPORT BANS, AND T ESTING AND CERTIFICA TION REQUIREMENTS FO R 
RADIONUCLIDES  ................................ ................................ ................................ ............  25 
A. Report of the Appellate Body and Report of the Panel  ................................ ......................... 25 
10   PROPOSED NOMINATION S FOR THE INDICATIVE  LIST OF GOVERNMENTA L AND 
NON-GOVERNMENTAL PAN ELISTS ................................ ................................ ..................  35 
11   APPELLATE BODY APPOINTMENTS: PROPOS AL BY ARGENTINA; AUS TRALIA; BENIN; 
THE PLURINATIONAL ST ATE OF BOLIVIA; BRAZ IL; CANADA;  CENTRAL AFRICAN 
REPUBLIC; CHILE; CHINA; COLOMBIA;  COSTA  RICA; CUBA; D OMINICAN  REPUBLIC; 
ECUADOR; EGYPT; EL  SALVADOR; THE EUROPEA N UNION; GUATEMALA; HONDURAS; 
HONG  KONG, CHINA; IC ELAND; INDIA; INDONE SIA; ISRAEL; KAZAKHS TAN; KOREA; 
LIECHTENSTEIN; MEXIC O; MOROCCO;  NEW  ZEALAND; NICARA GUA;  NORTH MACEDONIA; 
NORWAY; PAKISTAN; PA NAMA; PARAGUAY; PERU ; THE RUSSIAN  FEDERA TION; 
RWANDA; SINGAPORE; S WITZERLAND; THE SEPA RATE CUSTOMS TERRITO RY OF 
TAIWAN, PENGHU, KINM EN AND MATSU; TURKEY ; UKRAINE; URUGUAY; THE 
BOLIVARIAN REPUBLIC OF VENEZUELA AND VIE T NAM  ................................ .................  35 
12   COMMUNICATION B Y JAPAN: "TOWARDS TH E PROPER FUNCTIONING  OF THE 
DISPUTE SETTLEMENT M ECHANISM".  ................................ ................................ ............  41 
 
1  SURVEILLANCE OF IMPL EMENTATION OF RECOMM ENDATIONS ADOPTED BY  THE DSB 
A. United  States – Anti-dumping measures on certain hot -rolled steel products from Japan: Status 
report by the United  States (WT/DS184/15/Add.194)  
B. United  States – Section  110(5) of the US Copyright Act: Status report by the United  States 
(WR/DS160/24/Add.169)  
C. European  Communities – Measures affecting the approval and marketing of biotech products: 
Status repo rt by the European  Union (WT/DS291/37/Add.132)  
D. United  States – Anti-dumping and countervailing measures on large residential washers from 
Korea: Status report by the United  States (WT/DS464/17/Add.16)  WT/DSB/M/428  
 
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  E. United  States – Certain methodologies and their a pplication to anti -dumping proceedings 
involving China: Status report by the United  States (WT/DS471/17/Add.8)  
F. Indonesia – Measures concerning the importation of chicken m eat and chicken products: Status  
report by Indonesia (WR/DS484/18/Add.7)   
G. United States – Anti-dumping measures on certain oil country tubular goods from Korea: Status 
report by the United  States (WT/DS488/12/Add.7)  
H. Indonesia – Importation of horticultural products, animals and animal products: Status report by 
Indonesia (WT/DS477 /21/Add.3 – WT/DS478/22/Add.3)  
1.1.  The Chair man noted that there were eight 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 
requires that: " [u]nless the DSB decides otherwise, the issue of implementation of the 
recommendations or rulings shall be placed on the Agenda of the DSB meeting after six  months 
following the date of establishment of the reasonable period of time and shall remain on the DSB's 
Agenda until the issue is resolved".  Under this Agenda item, he invite d delegations to provide up-
to-date information about their compliance efforts. He also  remind ed delegations that, as provided 
for in Rule  27 of the Rules of Procedure for DSB meetings: " [r]epresentatives should make every 
effort to avoid the repetition of a full debate at each meeting on any issue that has already been 
fully debated in the past and on which there appears to have been 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.194)  
1.2.  The Chairman drew attention to document WT/DS 184/15/Add.19 4, which contain ed 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 t he United States had provided a status report 
in this dispute on 15 April  2019, in accordance with Article 21.6 of the DSU. The United States ha d 
addressed the DSB 's recommendations and rulings with respect t o the calculation of anti -dumping 
margins in the hot -rolled steel anti -dumping duty investigation at issue. With respect to the DSB's 
recommendations and rulings  that ha d yet to be addressed, the US Administration would  work with 
the US Congress with respe ct 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 the statement made at the present meeting . Japan, once again , called on 
the United States to fully implement the DSB's recommendations and rulings  so as to resolve this 
matter . 
1.5.  The DSB took note  of the statements and 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 (WR/DS160/24/Add.169)  
1.6.  The Chairman drew attention to document WT/DS160/24/Add.16 9, which contain ed the status 
report by the United  States on progress in the implementation of the DSB's recommendations in t he 
case concerning Section  110(5) of the US Copyright Act . 
1.7.  The representative  of the United  States  said that the  United States had provided a status report 
in this dispute on 15 April 2019, in accordance with Article 21.6 of the DSU. The US Administration 
would  continue to confer with the European Union, and to work closely with the US Congress, in 
order to reach a mutually satisfactory resolution of this matter . WT/DSB/M/428  
 
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  1.8.  The representative of the European Union  said that his delegation wished to  thank the 
United  States for its status report and its statement made at the present meeting . The EU  wished to 
refer to its statements  made at previous DSB meetings under this Agenda item . The EU said that it 
wished to resolve this case as soon as possible . 
1.9.  The representati ve of China  said that his country  noted that the United States had submitted 
its 170 th status report in this dispute. Once again, this most recent  report , as was the case for the 
status reports submitted by the U nited States ahead of  previous DSB meetings , was not different 
from the very first report  submitted in this dispute . Nearly  two decades after the DSB had adopted 
the Panel  Report in DS 160,  this dispute remain ed unresolved. Section  110(5) of the US Copyright 
Act, which had been  found to be inconsis tent with the requirements of the Berne Convention and 
the WTO TRIPS Agreement, was still in effect. Without further implementation, the United States 
had continu ously fail ed to provide the minimum standard of protection as required by the WTO TRIPS 
Agreem ent and ha d become the only WTO Member who fail ed to implement the DSB 's 
recommendations and rulings under the TRIPS Agreement. Article 21.1 of the DSU state d that: 
"[p]rompt  compliance with recommendations or rulings of the DSB is essential in order to ensure 
effective resolution of disputes to the benefit of all Members ". China,  therefore , urged the 
United  States to faithfully honour its commitments under the DSU and the TRI PS Agreement by 
implementing the DSB 's recommendations and rulings in this dispute without further delay . 
1.10.   The representative of the United  States  said that as the United States  had noted at prior DSB 
meetings, b y intervening under this item, China attempt ed to give the appearance of concern for  
intellectual property rights. Yet, China had been engaging in industrial policy which had resulted in 
the transfer and theft of intellectual property and technology to the detriment of the United States 
and its worke rs and businesses . In contrast, the intellectual property protection that the 
United  States provide d within its own territory equalled or surpa ssed that of any other Member . 
Indeed, none of the damaging technology transfer practices of China that had been  discussed at 
recent DSB meetings were practices that Chinese companies or innovators face d in the 
United  States . 
1.11.   The representative of China  said that, o nce again, the United States had tried to derail the 
discussion to ward other irrelevant issues. Under this Agenda item, the relevant issue was whether 
the United States ha d fully implemented the DSB 's recommendations and rulings in this dispute . 
Obviously, the answer was negative. In its statement under this Agenda item, the United States 
appeared to sugge st the supremacy o f its protection of intellectual property rights . Aside from  the 
relevance of that assertion to th e issue under this Agenda item , that assertion was in and of itself 
deeply flawed. The United States ha d deliberately delayed full compliance in this dispute for more 
than 14 years. It was the only WTO Member who fail ed to implement the DSB 's rulings and 
recommendations under the TRIPS Agreement. Regarding U S criticism about China 's intellectual 
property protection, China  wished to  refer to its statements made at  prior DSB meetings, including 
its statement made at  the 28 May 2018  DSB meeting.  His country took its commitments under the 
TRIPS Agreement seriously  and continue d its various efforts to ensure the protection of intellectual 
property rights holders. China welcomed and always stood ready to engage in good faith discussions 
with other Members regarding any intellectual property issue . Under this Agenda item , it was fair to 
say that the long overdue US implementation in this dispute was of great concern to many other 
Members , if not all , and to the multilateral trading system, since it severely undermine d the 
effectiveness and functioning of the dispute settlement mechanism. China,  therefore , urged the 
United States to faithfully honour  its duty  to implement the DSB's recommendations and rulings in 
this dispute . In addition, China  invite d the United States to include in its next status report the 
specific reasons as to why implementation of the DSB's recommendations and rulings in this dispute  
could not take place for so long in this dispute .  
1.12.   The representative of the United  States  said that t he record show ed that the United  States 
had fully complied in the vast majority  of its disputes. The best way for China to support fairness in 
the world trading system was to remedy the problems it ha d created. China should change its 
behaviour: stop distorting markets, stop forcing companies to transfer technology, and create a leve l 
playing field that w ould give all countries a better chance to succeed.  WT/DSB/M/428  
 
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  1.13.   The representative of China  said that his delegation had  just heard the US claim regarding a  
"level playing field ". China's  understanding  was that  the baseline of the level playing f ield in this 
Organization was compl iance with WTO rules. China,  therefore , request ed that the United States 
fully implement the DSB's recommendations and rulings in this dispute.  
1.14.   The DSB took note  of the statements and agreed  to revert to this matter at it s 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.132)  
1.15.   The Chair man drew attention to document WT/DS291/37/Add.13 2, which contain ed 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 . 
1.16.   The representative of the European  Union  said that his delegat ion continue d to progress with 
the authori zations where the European Food Safety Authority ha d finaliz ed its scientific opinion and 
concluded that there were no safety concerns . In general, efforts to reduce delays at all stages of 
authori zation procedures  were constantly maintained at a high level. This ha d already resulted in a 
clear improvement of the situation. It should be noted that delays in risk assessment on some 
applications were mainly due to the amounts of time th at applicants need ed to respond to justified 
scientific questions. The EU wished to  note that on 11 April 2019, two draft authori zations – one for 
a new genetically -modified ( GM) soybean1 and one for the renew al of the authori zation f or a GM 
maize2 – had been  presented for a vote in the Appeal Committee , with a "no opinion " result. It was 
now for the European Commission to decide on these authori zations. The EU continue d to be 
committed to acting in line with its WTO obligations. More generally , and a s the EU had stated many 
times at previous DSB meetings , the EU wished to recall  that the EU approval system was not 
covered by the DSB's recommendations and rulings  in this dispute . 
1.17.   The representative of the United  States  thanked the European Union (EU) for its status  report 
and its statement at the present meeting.  The United States continued to be concerned with the 
EU's measures affecting the approval of biotech products. Delays persisted and affected dozens of 
applications that had been awaiting approval for months  or years, or that had already received 
approval. As the United States had highlighted at prior DSB meetings, even when the EU finally 
approved a biotech product, EU member States continued to impose bans on the supposedly 
approved product. The EU maintain ed legislation, in the form of the amendment of EU Directive 
2001/18 through EU Directive 2015/413, that permitted EU member States to, in effect, restrict or 
prohibit cultivation of genetically -modified organisms (GMOs), even where the European Food Safet y 
Authority (EFSA) had concluded that the product was safe. This legislation permitted EU member 
States to restrict for non -scientific reasons certain uses of EU -authorized biotech products in their 
territories by demanding that EU cultivation authorizatio ns be adjusted to exclude portions of an EU 
member State's territory from cultivation. At least 17 EU member States, as well as certain regions 
within EU member States, had submitted such requests with respect to MON -810 maize. This could 
not be squared wi th the EU's statement at a previous DSB meeting that no member State had taken 
action to ban the cultivation of such a product. The United States further highlighted a public 
statement issued by the EU's Group of Chief Scientific Advisors on 13  November  2018, in response 
to the 25  July 2018 European Court of Justice (ECJ) ruling that addressed the forms of mutagenesis 
that qualified for the exemption contained in EU Directive 2001/18/EC. As the United States had 
previously noted, the Directive had been a ce ntral issue in dispute in these WTO proceedings, and 
concerned the deliberate release into the environment of genetically modified organisms, or GMOs. 
Contrary to the EU's statement made at prior DSB meetings, this ECJ ruling related to previously 
authoriz ed GMOs. The EU Group of Chief Scientific Advisors' statement spoke to the lack of scientific 
support for the regulatory framework under EU Directive  2001/18. Contrary to the EU's assertion 
made at a previous DSB meeting, the statement clearly did not refl ect a mere reaction from a group 
of stakeholders. Rather, the statement reflected scientific advice provided to the European 
Commission in response to its request for such information. The message provided in the statement 
was clear: "in view of the Court' s ruling, it becomes evident that new scientific knowledge and recent 
technical developments have made the GMO Directive no longer fit for purpose". The statement 
                                                
1 Soybean MON 87751.  
2 Renewal of maize 1507xNK603.  WT/DSB/M/428  
 
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  further advised that current scientific knowledge called into question the definition of "GMO s" under 
the Directive and noted that mutagenesis, as well as transgenesis, occurred naturally. The 
United  States urged the EU to act in a manner that would bring into compliance the measures at 
issue in this dispute. The United  States further urged the EU  to ensure that all of its measures 
affecting the approval of biotech products, including measures adopted by individual EU member 
States, were based on scientific principles, and that decisions were taken without undue delay.  
1.18.   The representative of the European  Union  said that his delegation wished to  remind Members 
that the opt -out Directive was not covered by the DSB 's recommendations and rulings  in this dispute . 
In addition, no EU member State  had imposed any ban. Moreover, under the terms of the Directi ve, 
an EU member State could only adopt other measures restricting or prohibiting cultivation only if 
such measures were in line with EU law, reasoned, proportional and non -discriminatory and based 
on compelling grounds. In any event , the provisions of the  opt-out Directive d id not affect the free 
movement of seeds within the EU. He noted that in its statement at the present meeting, t he 
United  States had mentioned a product referred to as  "MON  810". His delegation  was not certain  as 
to what this reference was meant to cover. The EU  was not aware of th e status of th is product and 
whether it was causing any trouble to the right holder. The EU said that p erhaps the United States 
would wish to explain the meaning of its reference to the MON 810 product  at a subsequent DSB 
meeting . In July 2018, the Court of Justice of the European Union (CJEU) had provided important 
clarification on the scope of application of the GMO legislation in relation to organisms obtained by 
mutagenesis techniques. The CJEU had ruled that organisms obtained by means of new 
techniques/methods of mutagenesis, which ha d appeared or ha d been developed mostly after  the 
adoption of Directive 2001/18, f ell within the scope of th is Directive. The CJEU's judgment ha d not 
extended the scop e of the legislation but ha d clarified how it should be read. The European 
Commission was now working to ensure proper implementation of the CJEU's judgment together 
with EU member States. EU  member States were responsible at the national level for the rel evant 
control activities regarding the placing on the market of both products produced in the EU and 
imported products . To this effect, the Joint Research Centre was helping national laboratories to 
develop relevant detection methods. The EU w ished  to reca ll that the Group of Chief Scientific 
Advisors was an independent group of scientific experts that provid ed scientific advice to the 
European  Commission. Its statement focuse d on the challenge related to  products obtained by new 
mutagenesis techniques and not to the "conventional GMOs ". Its statement d id not suggest or imply 
that Directive 2001/18 would not be fit for purpose as far as conventional GMOs were concerned. 
There ha d been many reactions to the CJEU's  judgment  which had brought  forward a wide range of 
different views. That statement fed into ongoing discussions on new mutagenesis techniques with 
all stakeholders. Many stakeholders agree d with th is statement. However, many others consider ed 
that the current legislation was adequa te to address the risks from new biotechnology developments. 
The EU  confirm ed the European Commission 's strong interest in this debate, which should extend  
beyond the regulatory status of new technologies and  focus on the way new products could help 
addres s societal challenges, such as climate change or reduction of use of pesticides, without 
negative consequences on health and environment al protection.  
1.19.   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.16)  
1.20.   The Chairman drew attention to document WT/DS464/17/Add.1 6, which contain ed the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning anti -dumping and countervailing measures on large residential washers from  Korea . 
1.21.   The representative of the United  States  said tha t the United  States provided a status report 
in this dispute on 15 April 2019 , in accordance with Article  21.6 of the DSU. On 29 March 2019, the 
US International Trade Commission (USITC)  had determined in the context of a five -year "sunset" 
review that rev oking the existing anti -dumping and countervailing duty orders on imports of large 
residential washers from Korea would not be likely to lead to continuation or recurrence of material 
injury within a reasonably foreseeable time. As a result of  the USITC's negative determinations, the 
existing anti -dumping and countervailing duty orders on imports of large residential washers from 
Korea w ould be revoked. Revocation of the anti -dumping and countervailing duty orders was 
expected to take place sho rtly after the publication of the USITC's public report, which was scheduled 
to be released on 8  May 2019.  By withdrawing the anti -dumping and countervailing duty orders on WT/DSB/M/428  
 
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  imports of large residential washers from Korea, the United  States w ould have compl eted 
implementation of the DSB 's recommendations concerning the anti -dumping and countervailing duty 
investigations of large residential washers from Korea. The United  States continue d to consult with 
interested parties on options to address the DSB's recommendations relating to other anti -dumping 
measures challenged in this dispute.  
1.22.   The representative of the Republic of Korea  said that his country  wished to thank the United 
States for its status report and the statement made at the present meeting . Korea acknowledged  
and welcome d the recent steps taken by the United States to revoke the anti -dumping and 
countervailing duty orders on large residential washers. Korea  regard ed them as positive 
development s in this dispute. Korea was currently evaluating whether  the revocation, in its effect, 
would achieve full compliance with the DSB's rulings and recommendations in terms of the "as 
applied " measures at issue  in this dispute . At the same time, Korea note d that the United States 
had not taken any meaningfu l step to comply with the "as such " findings in this dispute . Therefore, 
Korea urge d the United States to take appropriate steps to promptly implement the DSB 's 
recommendations and rulings for the "as such " measure in order to fully comply with its obligat ions 
under the covered agreements.  
1.23.   The representative of Canada  said that his country was concerned that the United States ha d 
not implemented the DSB 's recommendations and rulings in this dispute. In particular, Canada was  
deeply disappointed that, despite the expiry of the reasonable period of time, the United States 
continue d to collect cash deposits from Canadian exporters based on a methodology that had been  
found to be "as such " inconsistent with WTO obligations in thi s dispute .  
1.24.   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.8)  
1.25.   The Chairman drew attention to document WT/DS471/17/Add. 8, which contain ed the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning certain methodologies and their application to anti -dumping proceedings involving 
China . 
1.26.   The representative of the United  States  said that t he United  States had provided a status 
report in this dispute on 15 April 2019, in accordance with Article  21.6 of the DSU. As explained in 
that report, the United  States continue d to consult with interested parties on options to address the 
DSB's recommendations.  
1.27.   The representative of China  said that o n 11 May 2017, the Appellate Body had circulated its 
report in this dispute . On 22 May 2017, the DSB had adopted the Appellate Body report and the 
Panel report, as modified by the Appellate Body report. The arbitration pursuant to Article 21.3(c) 
of the DSU had determined the reasonable period of time (RPT) to be 15 months . The RPT had 
expired on 22 August 20 18. On 9 September 2018, China had requested authorization from the DSB 
to suspend concessions or other obligations and the matter ha d been referred to arbitration in line 
with Article 22.6 of  the DSU . Thus far, the U nited States had submitted nine status reports  with 
nearly  identical contents . None of the se status reports  indicate d any substantive implementation 
progress by the U nited States to address the DSB 's recommendations in this dispute other than 
"consulting with the interested parties ". Due to its  consistent non -compliance, nearly  two years after 
the DSB had adopted the Appellate Body report and the panel report in this dispute, and eight 
months after the expiry of the RPT, this dispute continued to be unresolved . Unfortunately, China 
was not the only victim of US disrespect of WTO dispute settlement. Under Item 1 of the Agenda of 
the present meeting , five out of eight disputes under the DSB's surveillance relate d to US 
non-compliance with the DSB's recommendations and rulings. Such behavio ur serio usly undermined 
the effectiveness and credibility of the WTO dispute settlement system, which r an against the 
interests of the entire  Membership. With regard to  the dispute  at hand , China was very disappointed 
and deeply concerned with the progress of the United States in implementing the recommendations 
and rulings  adopted by the DSB.  The WTO -inconsistent measures taken by the U nited States had 
seriously infringed China 's legitimate economic and trade interests, distorted the relevant 
international market  as well as seriously damaged the rule s-based multilateral trading system . Once WT/DSB/M/428  
 
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  again, China  urged the United  States to take concrete actions, fully respect the WTO rules, and 
faithfully implement the DSB's recommendations and rulings in this dispute.  
1.28.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
F. Indonesia – Measures concerning the importation of chicken m eat and chicken 
products: Status  report by Indonesia (WR/DS484/18/Add.7)   
1.29.   The Chairman drew attention to document WT/DS484/18/Add. 7, which contain ed the status 
report by Indonesia on progress in the implementation of the DSB's recommendations in the case 
on measures concerning the importation of chicken meat and chicken products . 
1.30.   The representat ive of Indonesia  said that h is country had submitted its status  report in 
accordance with Article 21.6 of the DSU. On 22  November 2017, the DSB had adopted its 
recommendations and rulings in this dispute. At the 22 January 2018  DSB meeting, Indonesia had 
informed the DSB of its intention to implement the DSB's recommendations and rulings  in this 
dispute . Indonesia and Brazil had also informed the DSB, on 15 March 2018, of their agreement on 
a reasonable period of time (RPT) for Indonesia to implement the DS B's recommendations and 
rulings  in this dispute . The RPT had expired on 22 July 2018 . He said that  his country had undertaken 
necessary adjustments for the relevant measures . With regard to the alleged undue delay, the health 
certificate questionnaire submitted by Brazil w ould be processed without delay on a first-come -first- 
serve  basis. Indonesia stood  ready to continu e communicati ng with Brazil , and to hold consultations 
as and when necessary, in relation to this matter .  
1.31.   The representative of Brazil  said that his country  wished to thank  Indonesia for its status 
report . Brazil's concerns about Indonesia's implementation of the DSB's recommendations and 
rulings in th is dispute remain ed unchanged. These concerns relate d to the "positive list requirement" 
which was still in force. Indonesia  had chose n to maintain the list and include some of the HS codes 
of chicken meat and chicken products that had been  the subject of Brazil 's complaint. One HS code, 
however, still remai ned to be included in Indonesia 's positive list . Brazil note d that Indonesia had 
eliminated the requirement of distribution reports with information regarding use or place of sale of 
imported chicken meat and chicken products . The requirement of distributi on plans nonetheless still 
existed by force of Article 22(1)(l) of Ministry of Agriculture  Regulation 34/2016 . Regarding  the 
possibility of making amendments to the terms of import licenses, to Brazil's  knowledge, the 
amendments still subject ed importers to several sanctions in case some requirements were not 
strictly observed. Finally, Brazil highlight ed the unsatisfactory status of the analysis of Brazil's 
veterinary health certificate for the importation of chicken meat and chicken products. Brazil believed 
that undue delay continue d with Indonesia 's approval of the certificate . Brazil recall ed that the 
reasonable period of time  (RPT)  for Indonesia to comply with the DSB 's recommendations and rulings 
in this dispute ha d expired on 22 July 2018 . Full implementation remain ed to be seen. Brazil  thus 
urged Indonesia to fully comply with the DSB's recommendations and rulings in th is dispute.  
1.32.   The DSB  took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
G. United  States – Anti-dumping measures on certain oil country tubular goods from 
Korea: Status report by the United  States (WT/DS488/12/Add.7)  
1.33.   The Chairman drew attention to document WT/DS488/12/Add. 7, which contain ed the status 
report by the United Stat es on progress in the implementation of the DSB's recommendations in the 
case concerning anti -dumping measures on certain oil country tubular goods from Korea . 
1.34.   The representative of the United  States  said that on 11 January 2019, the United States and 
Korea had informed the DSB that the parties had mutually agreed to modify the previously notified 
reasonable period of time (RPT) for implementation of the DSB's recommendations and rulings in 
this dispute pursuant to Article 21.3(b) of the DSU . The RPT would now expire on 12 July 2019 . The 
United States had provided a status report in this dispute on 15 April  2019, in accordance with Article 
21.6 of the DSU. On 23  November  2018, the US Department of Commerce had provided notice in 
the US Federal Register that it had commenced a proceeding to gather information, analyse record 
evidence, and consider the determinations which would be necessary to bring the anti -dumping WT/DSB/M/428  
 
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  investigation at issue in this dispute into conformity with the DSB's recommendations and rulin gs. 
The notice was available at 83 F.R. 59359. The United States would continue to consult with 
interested parties on options to address the DSB's recommendations .  
1.35.   The representative of the Republic of Korea  said that his country wished to  thank the United 
States for its status reports and its statement  made  at the present meeting . Considering that there 
had been no development  reported  since the most recent DSB  meeting, Korea wished to  refer to its 
statements made at previous DSB meetings and urged the United States to faithfully implement the 
DSB's  recommendations and rulings in this dispute within the reasonable period of time which would  
expire  on 12 July 2019 .  
1.36.   The DSB took n ote of the statements and agreed  to revert to this matter at its n ext regular 
meeting.  
H. Indonesia – Importation of horticultural products, animals and animal products: Status 
report by Indonesia (WT/DS477/21/Add.3 – WT/DS478/22/Add.3)  
1.37.   The Chairman  drew attention to document WT/DS477/21/Add. 3 – WT/DS478/22/Add. 3, 
which contain ed 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 . 
1.38.   The representative of Indonesia  said that his delegation had submit ted its status  report in 
accordance with Article 21.6 of the DSU. On 22  November 2017, the DSB had adopted the 
recommendations and rulings in this dispute . At the 28 February 2018 DSB meeting, Indonesia had 
informed the DSB that it intended to implem ent the DSB's recommendations and rulings in this 
dispute, but that it would need a reasonable period of time (RPT) to do so . Pursuant to 
Article  21.3 (b) of the DSU, Indonesia, the United States and New Zealand had mutually 
agreed  on the RPT to implement the DSB's recommendations and rulings. That RPT had expired on 
22 July 2018 . Nevertheless, with regard to the DSB 's recommendations and rulings concerning 
Measure 18, Indonesia, the United States and New Zealand had mutually agreed that Indonesia 
would have more time to make statutory changes to comply with the DSB's recommendations and 
rulings in this dispute . Accordingly, the United States and New Zealand would not initiate further 
proceedings concerning Measure 18 until at least 22 June 2019 . Indonesi a had noted continued 
concerns of New Zealand and the United States regarding  Indonesia's progress in complying with 
the DSB's recommendations and rulings in this dispute . Against this backdrop, Indonesia wishe d to 
inform the DSB that bilateral engagement had taken place between Indonesia and New Zealand and 
the United States  respectively . During this engagement, Indonesia ha d presented in great detail 
concrete steps that Indonesia ha d taken to adjust its regulations to be in line with the DSB's 
recommendat ions and rulings in this dispute , i.e., to improve its importation system with a view  to 
achieving full compliance. Indonesia w ould continue the aforementioned process. With respect to 
Measure 18, Indonesia was convening consultation s with all relevant sta keholders in view of the 
implementation of the  DSB's recommendations and rulings in this dispute . Indonesia wished to thank 
New Zealand and the United  States for their bilateral engagement. Indonesia w ould continue its 
effort and engagement to wards  resolv ing this dispute.  
1.39.   The representative of New Zealand  said that his country  wished to thank Indonesia for its 
status report and its statement made at the present meeting . New Zealand acknowledge d the steps 
that had been taken by Indonesia to bring its regulations into compliance with the DSB's 
recommendations and rulings in this dispute.  His country also  welcome d Indonesia 's commitment to 
comply fully with the se recommendations and rulings . New Zealand did not consider, however, that 
full compliance ha d been reached in respect of a number of measures addressed in th is dispute . Of 
particular concern was the continued enforcement by Indonesia of limited application windows and 
validity periods, harvest period  import bans, import reali zation requirements, and restrictions placed 
on import volumes based on storage capacity . These were issues that continue d to adversely impact 
New Zealand exporters. New Zealand  welcome d Indonesia 's commitment to engage intensivel y with 
New Zealand and the United States, which New Zealand  intend ed to continue.  New Zealand  
remain ed interested in progress on the further legislative change that was due to come into effect 
by June 2019. New Zealand w ould continue to work with Indonesia  to achieve long -term, 
commercially meaningful compliance with the DSB's recommendations and rulings in this dispute . WT/DSB/M/428  
 
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  1.40.   The representative of the United  States  said that Indonesia continue d to fail to bring its 
measures into compliance. The United  States and  New Zealand agree d that significant concerns 
remain ed with the measures at issue, including the continued imposition of : harvest period 
restrictions , import realization requirements, warehouse capacity requirements, limited application 
windows, limited validity periods, and fixed licensed terms. The United  States remain ed willing to 
work with Indonesia to fully and meaningfully resolve this dispute. The United  States  was still waiting 
to hear from Indonesia the concrete actions it w ould take to bring its measures into full compliance. 
The United  States also look ed forward to receiving from Indonesia information regarding the 
statutory changes Indonesia intend ed to make with respect to Measure  18.  
1.41.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
2  UNITED  STATES – CONT INUED DUMPING AND SU BSIDY OFFSET ACT OF  2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE DSB  
A. Statement by the European  Union  
2.1.  The Chairman said that this  item was on the Agenda of the present  meeting at the reque st of 
the European  Union. He then invite d the representative of the European  Union to speak . 
2.2.  The representative of the European  Union  said that his delegation request ed, once again , that 
the United States stop transferring anti -dumping and countervailing duties to the US industry . Every 
disbursement that still t ook place was clearly an act of non -compliance with the DSB's 
recommendations and rulings  in this dispute . The EU renew ed its call on the United States to abide 
by its clear obligation under Article 21.6 of the DSU to submit status  reports in this dispute . The EU 
would continue to p lace this item on the Agenda  as lon g as the U nited States had not implemented 
the DSB 's recommendations and rulings  in this dispute . 
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 shared the EU's view that this 
dispute  shall remain under surveillance of the DSB until the United States ceased to apply the 
measures at issue in this dispute . 
2.4.  The representative of Brazil  said that as an original party to this dispute, his country  wished  to 
thank the EU , once again , for placing this item on the Agenda of the DSB . Beyond the discussion 
about whether  or not the concerned Member had an  obligation to continue submitting status reports  
in this dispute , the reason that Members had  to return to this Agenda item at  every DSB meeting 
was that millions of dollars in anti-dumping and countervailing duties were still being illegally  
disbursed to US domestic petitioners . After more than 16 years since the adoption of the DSB's 
recommendations  and rulings in this dispute , and more than 13 years after the date on which  the 
Deficit Reduction Act that had repealed the Amendment, Brazil call ed on the United States to comply 
fully with the DSB 's recommendations and rulings in this dispute . 
2.5.  The repre sentative of the United  States  said that a s 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 in February 2006. Accordingly, 
the United  States had taken all actions necessary to implement the DSB's recommendations and 
rulings in these disputes . The United States recalled, furthermore, that the EU had acknowledged 
that the Deficit Reduction Act did not permit t he distribution of duties collected on goods entered 
after 1 October 2007, more than 1 1 years ago . With respect to the EU's request for status reports 
in this matter, as the United States had already explained at previous DSB meetings, there was no 
obligat ion under the DSU to provide further status reports once a Member announced that it had 
implemented the DSB's recommendations and rulings, regardless of whether the complaining party 
disagreed about compliance . The practice of Members confirmed this widesp read understanding of 
Article 21.6 of the DSU . Responding party Members did not continue submitting status reports where 
the responding Member had claimed compliance and the complaining Member disagreed, as 
Members would see under the next Agenda item conc erning the "EC – Large Civil Aircraft" dispute 
(DS316) . At recent DSB meetings, the European Union had argued that the situation in this dispute 
differed from the "EC – Large Civil Aircraft" dispute (DS316)  because, here, "the dispute has been 
adjudicated and there are no further proceedings pending". With this statement, the EU suggested WT/DSB/M/428  
 
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  that the issue of compliance had been adjudicated; in fact, it had not. The United  States had repealed 
the measure after all of the proceedings in this dispute. Accordingl y, since the United  States had 
informed the DSB that it had taken all steps necessary for compliance, there was nothing more for 
the United  States to provide in a status report.  
2.6.  The DSB took note  of the statements.  
3  EUROPEAN  COMMUNITIES  AND CERTAIN MEMBER STATES – MEASURES AF FECTING 
TRADE IN LARGE CIVIL  AIRCRAFT: IMPLEMENT ATION OF THE RECOMME NDATIONS 
ADOPTED BY THE DSB  
A. Statement by the United  States  
3.1.  The Chairman said that this  item was on the Agenda of the present  meeting at the req uest of 
the United  States. He then  invite d the representative of the United States to speak . 
3.2.  The representative of the United  States  said that the United States noted that, once again, the 
EU had not provided Members with a status report concerning the "EC – Large Civ il Aircraft" dispute 
(DS316). The United States had raised this same issue at recent past DSB meetings, where the EU 
had similarly chosen not to provide a status report. As the United States had noted at several recent 
DSB meetings , the EU had argued that Article 21.6 of the DSU required that: "the issue of 
implementation shall remain on the DSB's agenda until the issue is resolved". And the EU had argued 
that where the EU as a complaining party did not agree with another responding party Member's 
"assertio n that it has implemented the DSB ruling", "the issue remains unresolved for the purposes 
of Article  21.6 DSU". The EU did not contest that the issue remained unresolved for purposes of 
Article  21.6 of the DSU. The EU's only attempt to reconcile its stated  position with its lack of a status 
report in this dispute was to argue that there was some exception to providing a status report if 
there were ongoing proceedings. The only problem with this EU effort was that there was no such 
exception anywhere in the DSU. It was simply an invention by the EU to try to justify its acting in 
this dispute in a manner that was inconsistent with the legal position it had taken for other disputes. 
Under the EU's own view, the EU should be providing a status report. Yet it ha d failed to do so. The 
only difference that the United States could see was that, now that the EU was a responding party, 
the EU was choosing to contradict the reading of Article  21.6 of the DSU it had long erroneously 
promoted. Under Article  21.6 of the D SU, once a responding Member provided the DSB with a status 
report that announced compliance, there was no further "progress" on which it could report and, 
therefore, no further obligation to provide a report. And the conduct of every Member when acting 
as a responding party, including the EU, showed that WTO Members understood that a Member 
concerned had no obligation under Article  21.6 of the DSU to continue supplying status reports once 
that Member announced that it had implemented the DSB's recommendati ons. As the EU allegedly 
disagreed with this position, it should for future meetings provide status reports in this DS316 
dispute.  
3.3.  The representative of the European Union  said that a s at previous DSB meetings, the 
United States had again implied that the  EU was taking inconsistent positions under Article  21.6 of 
the DSU, depending on whether the EU was a complaining party or a defending  party in a dispute. 
The US assertion remain ed without merit. As his delegation  had repeatedly explained at previous 
DSB meetings, the crucial point for the respo nding  party's obligation to provide status reports to the 
DSB was the stage of the dispute. In the case of the "EC – Large Civil Aircraft" dispute (DS316) , 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  recall  that in the "EC – Large Civil Aircraft" dispute (DS316) , the EU 
had notified to the WTO a new set of measures in a compliance communication , submitt ed at the 
28 May 2018 DSB meeting . The U nited States had responded that the measures included in that 
communication d id not bring the EU in full compliance with the DSB 's recommendations and rulings  
in that dispute . In light of the US position, on 29  May 2018, the EU had requested  consultations with 
the United States pursuant to  Articles  4 and 21.5 of the DSU . These consultations had failed to 
resolve the dispute. Consequently, the EU had then asked for the establishment of a compliance 
panel. The compliance panel had been  establis hed by the DSB on 27 August 2018. That compliance 
panel was currently reviewing "the existence or consistency with a covered agreement of measures 
taken to comply with the recommendations and rulings " of the DSB. He repeat ed that  there was a 
compliance pro ceeding still ongoing in this dispute . Whether or not the matter was "resolved " in the 
sense of Article 21.6 of the DSU wa s the very subject matter of this ongoing litigation. H e asked how 
it could be said that the defending  party should submit "status reports " to the DSB under  these WT/DSB/M/428  
 
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  circumstances . The EU would be very concerned with a reading of Article 21.6 of the DSU that would 
require the respo nding 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 view of the EU was further supported by Article 2 of the DSU on the 
administration of the dispute settlement rules and procedures: where, further to the disagr eement 
between the parties on compliance, a matter was with the adjudicators, it was temporarily taken 
out of the DSB 's surveillance . 
3.4.  The DSB took note  of the statements.  
4  INDONESIA – SAFEGUAR D ON CERTAIN IRON OR  STEEL PRODUCTS  
A. Communication from Indones ia (WT/DS490/14 – WT/DS496/15)  
4.1.  The Chairman  said that this  item was on the Agenda of the present  meeting at the req uest of 
Indonesia. He drew attention to the communication from Indonesia contained in document 
WT/DS490/14 and WT/DS496/15 . He then  invite d the representative of Indonesia to speak.  
4.2.  The representative of Indonesia  said that o n 27 August 2018, the DSB had adopted its 
recommendations and rulings in the "Indonesia – Iron or Steel Products " dispute  (DS490 ; DS496)  
with Chinese Taipei  and Viet Nam  respectively (WT/DS490/10 and WT/DS496/11). In a 
communication dated 16 September 2018, his country  had informed the DSB of its intention to 
implement the DSB's recommendations and rulings in this dispute. Pursuant to Article 21.3(b) of the 
DSU, Indonesia  had agreed on a reasonable period of time  (RPT) with Chinese Taipei and Viet Nam 
respectively (WT/DS490/12 and WT/DS496/13) . The RPT had expired on 27 March 2019. With 
respect to the DSB's recommendations and rulings, his country was  pleased to inform the DSB that 
on 22 March 2019, Indonesia ha d adopted Minister of Finance (MoF) Regulation 
No. 26/PMK.010/2019 to amend MoF regulation No. 130/PMK/010/2017 concerning the Imposition 
of Safeguard Duty on Imports of Flat -Rolled Products of Iron or Non -Alloy Steel  or "galvalume". The 
regulation was enacted and had entered into force on 22 March 2019. With the adoption of this 
regulation, the safeguard measure challenged by Chinese Taipei and Viet Nam had cease d to exist. 
Consequently, there would  be no imposition o f any additional safeguard duty (in the form of a specific 
duty) on import galvalume start ing on 28 March 2019 (on a non -discriminatory basis). The adoption 
of this regulation ensure d full implementation of the DSB 's recommendations and rulings in th ese 
dispute s.  
4.3.  The representative of Chinese Taipei  said that his delegation wished to  thank Indonesia for its 
statement regarding the adoption of a Ministerial regulation . His delegation also wished to thank 
Indonesia for its statement that the safeguard duty was no longer impos ed and that the measure at 
issue in this dispute  had been terminated. His delegation wished to  thank Indonesia further for its 
efforts in complying with the DSB 's recommendations and rulings in this dispute.  
4.4.  The representative of Viet Nam said that his country wished  to take this opportunity to show 
appreciation to Indonesia for its  efforts in implement ing the DSB 's recommendations and  ruling s in 
this dispute.  
4.5.  The representative of the European  Union  said that his delegation was a third  party in this 
dispute and it would normally not make a statement under this Agenda item at the present meeting  
had it not been  for the following . The EU ha d taken note of the Sequencing Agreements circulated 
in th ese dispute s. These agreements were contai ned in documents WT/DS490/13 and 
WT/DS496/14. The EU  took note that the disputing parties ha d agreed not to appeal a potential 
compliance panel report, if, on the date of its circulation, the Appellate Body was composed of fewer 
than three AB members available to serve on a division.  The EU consider ed that it was the right of 
parties to WTO proceedings to forego their right s to appeal, if they so wish ed. However, the EU 
found it regrettable that the current crisis ha d resulted in such agreements being signed. The EU  
underst ood that the parties to the dispute had felt compelled to sign such agreement because of the 
uncertainty  of whether, at the relevant point in time, an appeal would be available for the panel 
reports and the resulting uncertainty as to  the status of such panel reports. For the EU, such solution 
to deal with the uncertainty resulting from the blockage of Appellate Body appointments was clearly 
suboptimal. The EU  also wish ed to stress that this was but an illustration of a concrete impact  that 
the blockage of Appellate  Body appointments by one WTO Member ha d on pending disputes and on WT/DSB/M/428  
 
- 13 - 
 
  the rights of other WTO Members. It could  deprive WTO Members of their procedural right to an 
appeal before the Appellate Body that they otherwise should enj oy under the DSU. The existence of 
an appeal stage was an important part of the bargain struck in 1995.  The EU , therefore , wished  to 
strongly reiterate its call on all Members to constructively engage in the discussions on the proposals 
that ha d been made to resolve this crisis, so that the AB  appointments c ould be made as soon 
as possible.  
4.6.  The representative of Canada  said that t he right of appeal provided to WTO Members under 
Article  17 of the DSU was a fundamental one. It was important in 1995 , when the WTO was 
established , and it remain ed important. Canada deplore d that the current impasse ha d led to certain 
Members contemplating the relinquishment of this right of appeal due to the possibility that it m ight 
not be available to them in the future. This c alled for action  now.  Canada  wished to emphasize the 
importance of active engagement in the informal process led by the DSB Chairman  as Facilitator and 
filling the vacancies at the Appellate Body.  
4.7.  The representative of Mexico  said that her country  wished to reiterate that Members ha d a 
responsibility to safeguard and preserve the dispute settlement system in general, and consequently, 
the Appellate  Body. Members were currently failing to comply with Article  17.2 of the DSU. In this 
regard, Mexico  wished to underscore that the agreement s between  the parties to th ese dispute s not 
to appeal the Panel's decision were a clear example of the consequences of the failure by the 
164 Members to comply with this obligation. Th ese agreement s were, however, a demonstra tion of 
the commitment and maturity of the parties to th ese dispute s with regard to preserving the dispute 
settlement system. Her delegation welcome d these agreement s. However, Mexico regret ted that, 
for the first time in the 24 years since the establishme nt of the WTO, Members were finding it 
necessary to waive part of their right to due process in this Organization in response to the imminent 
threat faced by the Appellate  Body, and that the outcome of the Uruguay  Round was currently being 
undermined in th is case in particular. The possibility to appeal the recommendations issued by a 
panel was a right of Members which ha d been agreed upon by each and every Member . This 
entitlement was an integral part of the dispute settlement system and , therefore , Members could  
not be pressured into foregoing it. Mexico  thus express ed its concern that the relinquishing of this 
right was becoming a new trend among Members to prevent their disputes from being left in limbo. 
Mexico wished to reiterate its willingness to engage in the discussions on potential changes to the 
dispute settlement system, with the aim of addressing the concerns that had been expressed.  
Members  had to  reach an agreement  immediately and as a matter of urgency  that would  end the 
impasse in the AB selection process es.  
4.8.  The representative of China  said that his country took note of the Sequencing Agreement 
between Viet Nam and Indonesia in this dispute. It was China's  understanding  that the parties to 
this dispute had made  such extraordinary arrangement in the context of the lingering selection 
deadlock of Appellate Body members. It show ed, again, that when the Appellate Body were to  halt 
its functioning, this would inevitably cause severe consequences to the entire  WTO Memb ership, 
including the de facto  forfeiture of the right o f appeal. Special arrangements between Members could  
temporarily mitigate the adverse impacts of the Appellate Body paralysis to some extent, but they 
still fell short of replacing a well -functioning Appellate Body. China,  therefore , called on all Members 
to continue their constructive and faithful participation in consultations, and to work together to 
break the AB selection impasse without further delay.  
4.9.  The representative of Brazil  said that his cou ntry wished to thank the EU for having raised this 
matter. Brazil  had stated many times at previous DSB meetings that the current deadlock in AB 
selection  processes wa s already having an impact on the rights of WTO Members. The right of appeal 
to a standin g and fully composed Appellate Body was a fundamental element of the understanding 
that Members had  agreed to in the Uruguay Round. Brazil,  therefore , wished to be associated with 
the EU 's call on all Members to engage constructively in order to  resolve the current impasse. 
Concrete proposals  had been put forward  and a solution -oriented process had been  set up to achieve 
such an  outcome.  It was time for all Members to find a solution.  
4.10.   The representative of Guatemala  said that his country  underst ood that this was a topic 
covered by another Agenda item at the present meeting. However, his country  did not w ish to miss 
the opportunity to be associate d with the delegations that ha d expressed concern  about the fact that 
some delegations ha d felt obliged  to renounc e their right to due process. While Guatemala  support ed 
the spirit of cooperation that exist ed between the parties to th ese dispute s, in the same way that  
other delegations ha d stated  previously, Guatemala  express ed regret that the current situation in WT/DSB/M/428  
 
- 14 - 
 
  which the dispute settlement system f ound itself compel led Members to renounce their rights 
enshrined in  the DSU.  
4.11.   The representative of Chinese Taipei  said that his delegation wished to  thank Members for 
their stateme nts made under this Agenda item . Indeed, the non -appeal clause agreed by the three 
disputing parties in the sequencing agreements was aimed at dealing with the uncertainty in the 
Appellate Body. His delegation wished to reiterate its dedication to finding a solution to this impasse.  
4.12.   The DSB took note  of the statements.  
5  EUROPEAN UNION – ANTI-DUMPING MEASURES O N CERTAIN COLD -ROLLE D FLAT 
STEEL PRODUCTS FROM RUSSIA  
A. Request for the establishment of a panel by the Russian Federation (WT/DS521/2)  
5.1.  The Chairman  recall ed that the DSB had considered this matter at its meeting o f 11 April 2019 
and had agreed to revert to it.  He drew attention to  the communication from the Russian  Federation 
contained in document WT/DS521/2 and invited the representative of the Russ ian Federation to 
speak . 
5.2.  The representative of the Russian Federation  said that her country  wished  to refer to its 
statement made at the  11 April 2019 DSB meeting under this Agenda item.  At the present 
meeting, Russia requested,  for a second time , that the DSB establish  a panel to examine the matter 
with standard  terms of reference, as set forth in Article  7.1 of the DSU.  
5.3.  The representative of the European  Union  said that his delegation regret ted that Russia had 
decided to request the establishment of a panel on anti -dumping measures imposed by the EU in 
2016 on certain cold -rolled flat steel products from Russia. The EU believe d that its measures at 
issue in this dispute we re in conformity with the WTO Agreements.  
5.4.  The DSB took note  of the statements and agreed  to establish a panel in accordance with the 
provisions of Article  6 of the DSU with standard terms of reference.  
5.5.  The representatives of the  China , India, Japan , Korea , Ukraine  and the United  States  reserved 
their third -party rights to participate in  the Panel's proceedings.  
6  QATAR – CERTAIN MEAS URES CONCERNING GOOD S FROM THE UNITED AR AB EMIRATES  
A. Request for the establishment of a panel by the United Arab Emirates (WT/DS576/2)  
6.1.  The Chairman  drew attention to the communication from the United  Arab Emirates contained 
in document WT/DS576/2 and invite d the representative of the United  Arab Emirates  to speak.  
6.2.  The representative of the United Arab Emirates  (UAE) said that his delegation  respectfully 
request ed that the D SB establish a panel , with standard terms of reference , to examine  the matter 
referred to in document WT/DS576/2. The UAE had requested consultations in this matter on 
28 January 2019 and these consultations had been  held on 28 February 2019. Unfortunately, those 
consultations  had failed to resolve the matter. This matter concern ed Qatar 's decision to take 
unilateral retaliatory action against the UAE by banning sales outlets from importing, stocking, 
distributing, marketing or selling goods, medicines and other products origin ating in or exported 
from the UAE, and by excluding UAE products and companies from infrastructure projects in Qatar. 
Qatar 's actions violate d core principles of the WTO. They violate d fundamental market access and 
non-discrimination principles reflected i n Articles  I, III, and XI of the GATT 1994. Emirati products 
were being treated less favourably  than products sold by Qatari companies or by most third -country 
companies. These Qatari actions target ed the UAE and the other countries – specifically the Kingdom 
of Bahrain, Egypt and the Kingdom of Saudi Arabia – that ha d been seeking to protect their essential 
security interests in the face of Qatar 's continued support of terrorism and extremism, its 
propagation of hate speech, and its meddling in the internal affairs of its neighbours . The Qatari 
actions thus also directly contravene d the prohibition o f unilateral retaliatory action enshrined in 
Article 23 of the DSU. The prohibition on unilateral retali atory action under  Article 23 of the DSU 
was a basic cornerstone of a rules -based system and one of the greatest achievements of the WT/DSB/M/428  
 
- 15 - 
 
  Uruguay Round. The DSU was clear that only the DSB c ould authorize retaliatory action . Such action 
could  only be authorized  after a WTO panel or the Appellate Body ha d confirmed that a Member ha d 
acted inconsistently with its WTO obligations, that the Member ha d failed to bring its measures  into 
conformity  with the covered agreements within a reasonable period of time, and tha t the procedures 
for retaliation in the DSU ha d been strictly followed. Qatar ha d chosen to brazenly 
defy these  important rules. As other Members were aware, the DSB had established a panel on 
22 November 2017, at the request of Qatar, to hear its complaint against actions taken by the UAE.  
This Panel was currently examining the matter and ha d yet to issue a decision. The UAE was firmly 
convinced that the Panel w ould find that the actions taken by the UAE on security grounds were 
permissible pursuan t to the security exceptions under  Article  XXI of the GATT 1994, Article XIV bis 
of the GATS and Article 73 of the TRIPS Agreement. The recent Panel decision in the "Russia – Traffic 
in Transit" dispute (DS512) confirm ed the importance of these exceptions in protecting each 
country 's sovereign right to take such action as the country itself deem ed necessary to protect its 
essential security interests. Having requested the establishment of the Panel, Qatar was required to 
wait until the Panel issued  its ruli ng and was prohibited from taking unilateral retaliatory action. Yet, 
his country  was unable to discern any credible purpose behind Qatar 's ban on UAE goods other than 
to unilaterally retaliate against the UAE. In an effort to  justify the ban on WTO grounds, Qatar ha d 
announced that its ban was necessary for consumer protection and the prevention of smuggling. 
These objectives, however, d id not require discrimination against UAE products or those of two other 
countries. Moreove r, it appear ed to the UAE that if these were the true objectives of the ban, there 
were less trade -restrictive means of achieving them. The UAE , therefore , request ed that the D SB 
establish a panel , with standard terms of reference , in this dispute . 
6.3.  The rep resentative of Qatar  said that his delegation was  surprised that the United Arab 
Emirates (UAE) ha d abruptly terminated consultations in th is dispute and ha d rushed to seek the 
establishment of a panel. The UAE 's complaint in this dispute was  surreal because Qatar d id not limit 
access for UAE goods to Qatar 's market. To the extent that  UAE goods were unable to access Qatar 's 
market, this was solely because of the UAE 's own measures that prohibit ed the  movement of goods 
between the UAE and Qata r. The UAE ha d imposed a scheme of coercive and unlawful measures 
against Qatar, which was the subject of another ongoing dispute : "United Arab Emirates – Goods, 
Services and IP rights " (DS526 ). Qatar was  perplexed that the UAE continue d to maintain those 
measures, and yet complain ed of an alleged lack of market access to Qatar. To the extent the UAE 
wishe d to facilitate the access of its goods to the Qatari market, its recourse lies in removing its own 
unlawful measures, not in complaining about non -existe nt Qatari measures.  If UAE exporters were 
frustrated at not being able to access Qatar 's market, they should look closer to home to find the 
cause. Qatar wished to  note that the UAE ha d previously indicated that its own restrictive measures 
on exports to Q atar were necessary for national security purposes. With its panel request at the 
present meeting , Qatar underst ood that th e UAE no longer consider ed restrictions on export of goods  
to Qatar necessary for protecting its sec urity interests. That being the case, the UAE 's own export 
restrictions ha d no legal justification. Therefore , Qatar  called on the UAE to immediately withdraw 
those measures. Qatar  also wished to take  this opportunity to comment on the stark contrast 
between Qatar 's conduct in th is dispu te and that of the UAE when Qatar  had requested consultations 
concerning the UAE measures  at issue in the " United Arab Emirates – Goods, Services and IP rights " 
dispute ( DS526 ). Qatar recall ed that the UAE  had refused  in that case to engage in consultation s 
with Qatar. By contrast, in this dispute , and consistent with its obligations  under the DSU , Qatar had 
participated in consultations in good faith when requested by the UAE to do so. Qatar  was 
disappointed that the UAE continue d to abuse the system by pi cking and choosing when to engage 
in consultations. Turning more specifically to this dispute , there was no factual basis for the 
complaint . Unlike the UAE, Qatar remain ed open for business with all WTO Members and continue d 
to adhere to all its internatio nal obligations. If Qatar had intended to implement trade restrictions 
against the UAE, it would not continu e to export more than US $ 750 million worth of Qatari gas each 
year to the UAE. Qatar continue d to provide the UAE with more than 30% of its energy needs, 
despite the UAE 's coercive measures against Qatar. All of the measures mentioned by the UAE in its 
panel request  contained in document WT/DS576/2  either had never existed or ha d ceased to exist . 
Qatar had informed the UAE that certain documents, since then listed in the UAE 's panel request, 
had been  temporary. Qatar had issued these temporary documents to prevent illegal conduct and 
protect Qatari consumers. The relevant documents had been  subseque ntly rescinded and the 
circulars rescinding the earlier documents ha d been provided to the UAE. The DSU admonishe d 
Members to refrain from manifestly futile litigation. The dispute that the UAE now s ought  to initiate , 
against non -existent Qatari measures, could not possibly be fruitful. Qatar d id not consider it 
appropriate for the WTO to spend its limited resources on facilitating the litigation of a pointless 
dispute. Qatar , therefore , object ed to the establishment of a panel at th e present  meeting.  WT/DSB/M/428  
 
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  6.4.  The representative of the Kingdom of Bahrain  said that  his country support ed the UEA's claims 
and their right to request the establishment of a panel on this matter , as Bahrain was  one of the 
other WTO Members directly affected by the measures that had just been elaborated on by the UAE. 
His country  regret ted that consultations on this matter  had not yielded  a solution and was concerned 
that the respondent ha d yet to provide a justification for its actions.  
6.5.  The representative of Egypt  said that his country  support ed the statement made at the present 
meeting  by the UAE and its right to request the establishment of a panel on this matter. This dispute  
concern ed Qatar's decision to ban its domestic sales and outlet s from import ing, stocking , 
distributing , marketing and selling good s, medicines and other products originating in or exported 
from the U AE. At the same time , this decision target ed other WTO Members , including Egypt. His 
country  consider ed that Qatar's sales ban had been  taken against the legiti mate measures that these 
Members had adopted to protect their essential security interests  in the  light of Qatar's actions that 
had contributed to the destabili sation of the region. Egypt believed that  Qatar's ban on sales of 
products originating from the above -mentioned WTO Members violate d Article  I:1, III:4 and XI:1 of 
the GATT 1994 and c ould not be justified under any exception of the GATT 1994 , including 
Article  XXI. In addition to its discriminatory effects, Qatar's sales ban restrict ed the importation of 
goods. Essentially , this measure discourage d business operators in Qatar from importing goods from 
affected Members , since  goods originating from th ose Members c ould not be legally traded in Qatar. 
In addition, Qatar's failure to notify its ban on the sale of good s to the WTO was inconsistent with 
the 1982 GA TT Decision concerning Article XXI, which had been  incorporated into the GATT 1994. 
Finally , to the extent that the sales ban had not been published, Egypt consider ed that Qatar ha d 
acted inconsistently with Article X:1 of the GATT 1994. Pursuant to this provision , Members had to  
publish promptly their laws, regulations, judicial  decisions and administrative ruling s of general 
application affecting the sale of goods in such a manner as to  enable governments and traders to 
become acquainted with them. Egypt regret ted that the consultations on th ese issues ha d not yielded 
a solution . Egypt  looked forward to the prompt resolution of this dispute and to restoring the trading 
condition s to whic h Qatar ha d agreed  at the WTO . 
6.6.  The representative of Yemen  said that his country had read the UAE 's request for the 
establishment of a panel  dated 11 April  2019 contain ed in document WT/DS576 /2. His country had 
also listened to the statements made at the present meeting by Qatar and the UAE and noted Qatar's 
decision to block the UAE's request to establish a panel at the present meeting.  His delegation 
support ed the UAE's request to establish a panel , with standard terms of reference , to examin e the 
matter  set out  by the UAE in its panel request  as soon as possible.  
6.7.  The representative of the United Arab Emirates  said that his delegation regret ted that Qatar 
had decided  to block the establishment of a panel  on this matter . If Qatar believe d that its measures 
were justified, it should allow a p anel to examine them. This decision to block the establishment of 
a panel appear ed to mean that Qatar  did not have full confidence in the legality of its actions. There 
was no contradiction between the UAE's decision to bring its case and to termina te diplomatic and 
economic relations with Qatar. On the contrary, it was inconsistent for Qatar to first invoke WTO 
rules against the UAE , but then to violate these very same rules by adopting non -transparent,  
unilateral retaliatory measures before the WTO ha d had a chance to issue a ruling in respect of 
Qatar's  initial complaint . The UAE's principal defence to Qatar's claims at the WTO was essential 
security , to which the WTO accord ed a broad deference. Qatar's support for terrorism and 
extremism, its interference in its neighbours' affairs and its propagation of hate speech threaten ed 
the security of the UAE and the region more broadly. In contrast, Qatar ha d not indicated that its 
ban on the sale of UAE  goods was to protect its essential security nor c ould it point to any legitimate 
reason for the very targeted trade action it ha d taken. In truth, Qatar ha d taken retaliatory action 
against the UAE. Having filed its WTO panel request , Qatar c ould not now take matters into its own 
hands  and impose retaliation unilaterally without the WTO's approval.  The UAE was pleased to hear 
that Qatar now acknowledge d that its discriminatory measures were not justified. While Qatar ha d 
attempted to provide additional exp lanations, the vagueness and contradictory nature of those 
explanations confirm ed that Qatar 's discriminatory measures ha d never pursued legitimate 
objectives, but were retaliatory actions taken against the UAE. The UAE ha d not had sufficient 
opportunity t o review Qatar 's measures and to fully assess whether Qatar ha d in fact put an end to 
the discriminatory treatment of UAE goods. The public notice of this development had only appeared 
on 25 April  2019. The UAE  intend ed to undertake a careful review of the alleged measures. At this 
point,  the UAE note d Qatar 's announcement that it ha d withdrawn the measures at issue in this 
dispute was inadequate for several reasons. First, it was unclear to the UAE whether Qatar ha d fully 
withdrawn all measures covered by the UAE 's panel request. For instance, Qatar refer red only to WT/DSB/M/428  
 
- 17 - 
 
  two notices. It also d id not address the discriminatory treatment of UAE goods and manufacturers 
in Ashgal 's approved material lists. Nor d id Qatar address i ts failure to comply with the GATT 's 
publication requirements. Second, it d id not address Qatar having taken retaliatory action not 
permitted by Article 23 of the DSU. Qatar ha d not withdrawn its improper unilateral decision finding 
that the UAE had violat ed WTO rules. Indeed, Qatar ha d continued to put forward misleading 
explanations for its measures, including claiming that they serve d to protect consumers. At the heart 
of the UAE 's panel request was Qatar 's violation of its obligation not to make such un ilateral 
determinations or engage in unilateral retaliation. The public pronouncements from Qatar fail ed to 
address these issues. Therefore, the UAE  intend ed to proceed with its panel request at the present 
meeting . The UAE , therefore , wished to reiterate its request that the DSB establish a panel , with 
standard terms of reference.  
6.8.  The representative of Qatar  said that i n light of the previous statement made by the UAE, his 
delegation  wished  to strongly condemn the fabricated accusations made by  the UAE . The UAE ha d, 
once again, shown to the WTO Membership that it was abusing the key WTO principle of engaging 
in good faith.  Qatar w ould not allow the UAE to entertain such a discussion in the WTO. This was not 
the appropriate forum to have such a dis cussion and even if it were, it was the subject of the ongoing  
dispute:  "United Arab Emirates – Goods, Services and IP rights " (DS526). Had the UAE not abruptly 
terminated consultations with its panel request, the UAE would have received copies of the circulars 
that had rescind ed Qatar's  earlier measures  within the framework of those consultations. Even after 
the UAE had abruptly terminated the consultations, Qatar, o f its own initiative, had provided copies 
of these documents to the UAE. Qatar regr etted that the UAE persist ed with its futile request despite 
having been  fully aware that the measures of which it complain ed did not exist.  Therefore, Qatar  
object ed to the establishment of a panel  at the present meeting.  
6.9.  The representative of the United  Arab Emirates  said that there was no contradiction between 
the UAE's  decision to bring its case and its termination of diplomatic and economic relations with 
Qatar. On the contrary, it was in appropriate  for Qatar to first invoke WTO rules against the UAE but 
then to violate these very same rules by adopting non -transparent, unilateral retaliatory measures 
before the WTO had had a chance to issue a ruling in respect of Qatar's initial complaint . The UAE 's 
principal defence to Qatar 's claims at the WTO was essential security , to which the WTO accord ed a 
broad de ference. In contrast, Qatar ha d not indicated that its ban on the sale of UAE goods was to 
protect its essential security,  nor could it point to any  legitimate reason for the very targeted trade 
action it had taken . The UAE regret ted that Qatar ha d decided  to block the establishment of a panel  
and insisted that a panel b e establish ed at the present meeting.  
6.10.   The DSB took note  of the statements and agreed to revert to this matter.  
7  CHINA – DOMESTIC SUP PORT FOR AGRICULTURA L PRODUCERS  
A. Report of the Panel (WT/DS511/R and WT/DS511/R/Add.1)  
7.1.  The Chairman  recalled  that at its meeting o f 25 January 2017, the DSB had established a Panel 
to examine the complaint by the United  States pertaining to this dispute. The Report of 
the Panel  contained in document WT/DS511/R and  WT/DS511/R /Add.1  had been  circulated on 
28 February 2019 as an unrestricted document. The Panel Repor t was before the DSB for adoption 
at the present meeting at the request of the United  States. This adoption procedure was without 
prejudice to the right of Members to express their views on the Panel Report.  The Chairman then 
invited the representative of the United States to speak.  
7.2.  The representative of the United  States  said that the United States thanked the Panel and the 
Secretariat staff that assisted it for their work in this dispute. The United  States welcomed the 
findings of the Panel in this report, which confirmed that China had failed to comply with WTO rules 
by providing agricultural domestic support in excess of its commitments every ye ar between 2012 
and 2015. When China had joined the WTO, it committed not to provide support in favour of domestic 
producers, expressed in terms of China's Current Total Aggregate Measurement of Support (or 
Current Total AMS), in excess of its final bound commitment level of "nil". China had further agreed 
that its de minimis  exemption for product -specific support would be equivalent to 8.5% of the total 
value of production of a basic agricultural product during the relevant year. For the years 2012, 
2013, 2014, and 2015, the Panel had found that China had exceeded its final bound commitment 
level on the basis of each of China's market price support programmes for wheat, Indica rice, and WT/DSB/M/428  
 
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  Japonica rice. China's support for each of these products had exceeded 8.5% of the total value of 
production for each product. The United States noted in particular the Panel's interpretation of the 
term "quantity of eligible production" in paragraph eight of Annex 3. China, and certain third parties, 
had argued that a panel must limit the quantity of eligible production  to the amount of a product 
actually procured by the government, even where no such limitation existed in the domestic support 
measure in question. The Panel had disagreed with this interpretation, finding inst ead that, where 
the measure did not contain an express or implied limitation, the quantity of eligible production  was 
the total volume of production of the product in the relevant territory. This interpretation accurately 
reflected the text of paragraph ei ght of Annex 3, as well as the actual economic effects of market 
price support programmes. The United  States regretted that the Panel had declined to make 
additional findings with respect to corn. For corn too, China's market price support programme in 
the relevant years had also exceeded 8.5% of the total value of production of corn, including for the 
most recent year (2015) for which data were available, and therefore for which China's conformity 
with its WTO commitments could be assessed. The Panel's app roach not to make findings for corn 
for 2015, without China's having clearly established the basis on which corn support had been 
provided in 2016, was flawed because it created a real risk that lack of transparency would enable 
a WTO Member to avoid WTO f indings on its domestic support. However, the United  States also 
recalled that the Panel had found that China had exceeded its Commitment Level through the support 
provided to each of the products in question. That was, a finding on any one of the products  
established that China had breached its overall domestic support commitments. Thus, the Panel's 
failure to make additional findings with respect to corn did not alter the ultimate outcome that China 
had exceeded its allowable domestic support commitments.  In conclusion, the United States thanked 
the Panel for the work reflected in this report and looked forward to China's prompt implementation. 
The United  States proposed that the DSB adopt the report contained in WT/DS511/R and 
WT/DS511/R/Add.1.  
7.3.  The repres entative of China  said that his country wished to  thank the Panel and the Secretariat 
for their hard work on this proceeding. Before making specific comments on findings of the Panel 
Report, China wished  to take this opportunity to first share important ba ckground  which would help 
Members to have a holistic view o f this dispute. Agriculture was a basic industry for all WTO 
Members. It was very sensitive, and was related to national food security, as well as to the livelihood 
of hundreds of millions of farmers. This was especially true for China. China fe d 20% of the world's 
population with 7% of the world's arable land. Meanwhile, China 's rural population was as large as 
500 million, which was 41 times the total  amount of that in the United States and Europe. It c ould 
be said that China's agricultural industry was connected, at one end, to the food and clothing of 1.3 
billion people; and at the other end, to the employment of 500 million farmers. This special sit uation 
determine d that China would not have in place a farm economy in the style of the United States, 
which was characterized by large scale and export orientation . Rather, China had developed a 
sustainable agricultural industry that was small -scale and l ivelihood -oriented. Nevertheless, upon its 
accession to the WTO, China had overc ome difficulties and had made tremendous contributions and 
sacrifices in the agriculture sector. As a newly -acceded developing Member, China had not only 
taken the unequal "Nil" Aggregate Measurement of Support (AMS) commitment that was applicable 
to all developing Members, but had also further committed to reduce its de minimis level to 8.5%. 
Therefore, the interpretation of China's Schedule of Concessions on agricultural produ cts, including 
its supporting materials, had to  be strictly based on the text and the negotiating history, and had to  
respect the negotiation outcomes as agreed between China and other WTO Members. These were 
the bas is for the discussion of China's domesti c support policy for agriculture. It was also the rule 
that serve d as the starting point for the WTO dispute settlement mechanism to correctly interpret 
the disputed provisions at issue. Back to the present case, on the basis of an objective review of 
China's new corn policy, the Panel had found that China's Temporary Purchase and Reserve Policy 
for corn had been terminated before the initiation of the dispute by the United States, and had ruled 
against the U S claim regarding China's  corn policy. Such finding demonstrate d the Panel's respect 
for the facts. The Panel had also found that the base period for calculating China 's domestic support 
shall be 1996 – 1998 as specified in supporting material Rev.3 (WT/ACC/CHN/38/Rev .3), instead of 
1986 – 1988 as provided in Annex 3 of the Agreement on Agriculture , contrary to what was  asserted 
by the United States. Such finding demonstrate d the Panel's respect for the negotiation outcomes 
regarding  China 's accession and that of other newly -accede d Members. China, like other 
newly -acceded Members, had entered into rounds of negotiations to discuss supporting materials 
with other parties. The drafts had been  revised several times before a consensus had finally been 
reached upon Rev.3, which had then been incorporated into China 's Schedule. Rev.3 was, therefore , 
one of the terms of accession reached between China and other WTO Members. It form ed part of 
the WTO Agreement and had to  be given due legal effect. However, China regret ted that the Panel WT/DSB/M/428  
 
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  had not follow ed the correct interpretive methodology as mentioned previously and had thus failed 
to calculate China's domestic support by using the actual purchased amount as the "eligible 
production " in accord ance with  Rev.3. Although China was disappointed  with certain parts of the 
Panel 's findings, China  chose to let the Panel Report to be adopted at the present meeting in order 
to settle this dispute. Undeniably, while ruling on the disputed matters, the Panel Report in this 
dispute , once again , highlight ed the unfair treatment suffered by developing Members vis-a-vis WTO 
rules on agricultural subsidies. This was a fundamental problem that deserve d reflection  and active 
resolution by every Member.  
7.4.  The representative of Canada  said that t he WTO Agreement on  Agriculture (AoA) discipline d 
the amount of agricultural support (i.e. , subsidies) that a Member was permitted to provide to its 
domestic producers. Canada had participated as a third party in this dispute because of a systemic 
interest in the appropriate  application of the rules in the A oA concerning the methodology to calculate 
a Member 's market price support. More specifically, under the AoA, market price support was 
determined by using the gap between a fixed external reference price and the applied administered 
price multiplied by the quantity of production eligible to receive the applied administered price. His 
country wa s pleased that the Panel ha d now clarified this important rule. In particular, it ha d clarified 
that in the absence of any limitations on the production eligible for the applied administered price, 
it was the total quantity of all production of the agricultural commodity in question that should be 
used in the calculation of market price support, even if the amount of actual purchases by the 
government m ight be small or even nil. In this case, applying the correct approach demonstrate d 
that China ha d been exceeding its domestic support limit for whea t and rice. The findings of the 
Panel provide d clarity on the application of the methodology to calculate market price support and 
Canada encourage d Members to reflect on their current practices in light of these findings.  
7.5.  The DSB took note  of the statemen ts and adopted  the Panel Report contained in WT/DS511/R 
and Add.1.  
8  RUSSIA – MEASURES CO NCERNING TRAFFIC IN TRANSIT  
A. Report of the Panel (WT/DS512/R and WT/DS512/R/Add.1)  
8.1.  The Chairman  recalled that at its meeting o f 21 March  2017, the DSB had established a Panel 
to examine the complaint by  Ukraine pertaining to this dispute. The Report of the Panel contained 
in document WT/DS512/R and  WT/DS512/R /Add.1 had been  circulated on 5 April 2019 as an 
unrestricted document. The Panel Report was before the DSB for adoption at the present meeting  
at the request of Russia. This adoption procedure was without prejudice to the right of Members to 
express their views on the Panel Report.  The Chairman then invited the representative of  Russia 
to speak .  
8.2.  The representative of the Russian Federation  said that her country wished to thank the Panel 
and the Secretariat team for their fundamental work in this dispute. This undoubtedly landmark case 
clarified for the first time highly sensitive and systemical ly important issues of national security and 
the interpretation of Article XXI of the GATT 1994. Russia  was honoured  to pay tribute to the 
outstanding professionalism and broad experience of the Panel Chairman, Mr. Abi -Saab and Panelists 
Mr. Araki and Mr. Saeed, as well as to underline  their historic contribution. From the very beginning , 
Russia had consistently declared that its measures, challenged by Ukraine in this dispute, were in 
full conformity with the provisions of the WTO  Agreements. Her country  welcome d the Panel's 
conclusions confirming this understanding in its Report and ma king no recommendation to the DSB 
pursuant to Article 19.1 of the DSU. Russia  found the outcome of the dispute to be well -balanced 
and of systemic importance. The conclusions of the Panel on GATT  Article XXl(b)  finally, for the first 
time in GATT/WTO history , provide d guidance and clarity regarding the consequences of invo king 
this Art icle for dispute settlement purposes. The Panel had come to an important  conclusion on the 
content of GATT Article XXl(b) regarding the objective conditions that justif ied application of 
measures pursuant to this Article , narrowing blanks in common underst anding of the Membership 
on issues of national security that were within the ambit of the WTO. In particular, the Panel f ound 
that while the chapeau of Article XXI(b) was subjective, it "does not extend to the determination of 
the circumstances in each sub paragraph" of that Article. Rather, for action to fall within the scope 
of Article XXI(b), it had to be  objectively found to meet the requirements in one of the enumerated 
subparagraphs of that provision. This ruling, on the one hand, confirm ed the discret ion of Members 
to adopt any measures they consider ed necessary for protection of their essential security interests 
and, on the other hand, exclude d the  possibility of abusing provisions of Article XXI to justify WT/DSB/M/428  
 
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  measures introduced for the purposes of mer e economic protectionism. In conclu sion, Russia 
welcome d Ukraine's decision not to appeal the Panel R eport and the adoption of the Panel Report .  
8.3.  The representative of Ukraine  said that her country  was grateful to the Members of the Panel3 
for their work in this dispute  and to the WTO Secretariat staff that had assisted them. The ruling  in 
this dispute  was important not only for the parties to the dispute, but for all WTO Members, observers 
and even the whole WTO dispute settlement system b ecause of its great significance to the legal 
foundations  of the WTO. Issues raised in this dispute were indeed of historic  importance  for fu ture 
developments in multilateral trade relations and w ould have an  important impact along the way. The 
adoption of  this ruling w ould constitute the first WTO decision on the Members' right to take action 
to protect national security under Article  XXI of the GATT  1994. Ukraine hope d that it would shed 
light on rights and obligations of WTO Members in this respect. The Panel ha d made a very important 
and welcome contribution by confirming that Article  XXI of the GATT  1994 was within the Panel's 
terms of reference for the purposes of the DSU.4 Most important ly, the Panel had found the existence 
of appropriate circumstances to be a crucial element for justification under Article  XXI of the 
GATT  1994. Thus, th is WTO ruling set a narrow definition of instances when the security clause c ould 
be invoked. Moreover, the Panel had clarifie d what exactly could be treated as an "emergency in 
international relations" and correctly found that: "…  there is no basis for treating the invocation of 
Article  XXI(b)(iii) of the GATT  1994 as an incantation that shields a challenged measure from all 
scrutiny".5 Hence, this ruling provid ed greater clarity as to the legal boundaries  of this provision , 
which should reduce the occurrence of protectionist and discriminatory trade measures that 
breach ed fundamental WTO principles being imposed and justified du e to an "emergency in 
international relations". Ukraine maintained its position that the transit restrictions imposed by the 
Russian Federation c ould not be justified by any logic. At the same time, Ukraine wished  to thank 
the Panel for referring in its Re port to the resolution of the General Assembly of the United Nations 
which had condemned the "temporary occupation of part of the territory of Ukraine" by the 
Russian  Federation and had recalled "the obligations of all States under Article  2 of the Charter  of 
the United Nations to refrain in their international relations from the threat or use of force against 
the territorial  integrity or political independence of any State, and to settle their international 
disputes by peaceful means ".6  
8.4.  However, Ukraine w ished  to emphasize the importance that all WTO Members underst ood the 
correct course of events in this dispute. Ukraine, therefore, wished to  address a few particular 
aspects of the Panel Report which had inverted  historical facts , as well as  Ukraine's con cerns in this 
dispute which Ukraine  believe d should be noted once again. First, Ukraine dr ew attention to the fact 
that the chronological order of the events as reflected in the Panel Report, in particular in Section  7.3 
("Factual background" ) thereof, was not quite accurate. In the course of the Panel proceedings, 
Ukraine had clearly explained that the true sequence of events was critical for an objective 
recognition of the events overall. However, the Panel had inverted  the chronology in its factual 
backg round related to  the trade aspect  of this dispute, in particular by linking the measures at issue 
with the entering into force of the Deep and Comprehensive Free Trade Agreement instead of the 
"economic part of the EU -Ukraine Association Agreement".7 Secon d, during the Panel proceedings 
                                                
3 The Panel comprised: the Chairman – Georges Abi -Saab (Egypt), former head of the Appellate Body, 
Ichiro Araki (Japan), Mohammed Saeed (Pakistan).  
4 Panel Report (WT/DS512/R), para. 7.56.  
5 Panel Report (WT/DS512/R), para. 7.100.  
6 Panel Report (WT/DS512/R ), para. 7.8., quoting UN General Assembly Resolution No. 71/205 
"Situation  of Human Rights in the Autonomous Republic of Crimea and the city of Sevastopol (Ukraine)", 
19 December 2016, A/RES/71/205, (UN General Assembly Resolution No. 71/205, 19 December 2016), (Exhibit 
UKR-91). This Resolution received 70 votes in favour, 26  against (including Russia) and 77 abstentions. (UN 
General Assembly Official Records, A/71/PV.65, 19  December 2016, pp. 40 -41.) and UN General Assembly 
Resolution No. 68/262, 27 March  2014, (Exhibit UKR -89), p. 1.  
7 Political and economic integration with the European Union had been and remained a constant priority 
in Ukraine's foreign policy. Thus, the negotiation of the EU -Ukraine Association Agreement had started in 2008 
and the neg otiation of the EU -Ukraine Association Agreement were initiated on 30 March 2012. Therefore, the 
decision to sign the EU -Ukraine Association Agreement had been made long before the change in government in 
early 2014. Accordingly, the EU -Ukraine Association  Agreement had been concluded in 2014. The part relating 
to the Deep and Comprehensive Free Trade Agreement, which provided for the progressive formation of a free 
trade area and covered both goods and services, that was the "economic part of the EU -Ukrain e Association 
Agreement" had been applied provisionally by both parties from 1 January 2016 onward until the full application 
of the entire agreement as of 1 September 2017. Ukraine had submitted repeatedly throughout the Panel 
proceedings that from 1 Janu ary 2016 onward, the Russian Federation had imposed a series of far -reaching trade WT/DSB/M/428  
 
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  the Russian  Federation had not contest ed any of the claims presented by Ukraine, which was noted 
in the Panel Report.8 Neither did the Russian Federation  elaborate, explain or provide any evidence 
in relation to its invocation of Article  XXI(b)(iii) of the GATT  1994, particularly as to what was an 
"emergency in international relations". The refore, the  question  of what were the "essential security 
interests " which the Russian  Federation had been  seeking to protect through measures challenged 
by Ukraine had remained unanswered. During the Panel proceedings , the Russian  Federation had 
not acted in good faith with respect to its obligations as a respondent. Thu s, the Panel had taken  an 
approach t hat entailed  bearing the burden of proof for the respondent . In doing so , the Panel had  
ignored well -known case law according to which when a party ha d not satisfied its burden of proof, 
it was not for a panel to make th e case for that party by advancing the relevant information  itself.9 
More specifically, the Panel, by doing all the work  for the respondent, had failed to assess all "specific 
arguments"10 presented by both parties with the same strictness and had failed to  impose the correct  
burden of proof among  them. Despite its disappointment with some parts of the Panel's ruling, 
Ukraine was not pursuing an appeal, as an analysis of the Panel Report had revealed more positive 
than negative developments for the WTO dispute settlement system  as a whole . In conclusion, 
Ukraine was thankful for the Panel's efforts in this dispute and would continue to strongly pursue its 
interests at the WTO.  
8.5.  The representati ve of the Russian Federation  said that w ith disappointment, her country  had 
to note that the previous statement made by Ukraine, once again, con firmed the fact that Ukraine 
was not really interested in  finding solutions to existing problems . Should Ukraine  bother with 
reading the text of the Panel R eport , it would have easily reali zed that the illusion Ukraine trie d to 
create regarding Crimea was not supported by its text. The factual background and the rele vant 
conclusion s reflected in the Report ha d no correlation with Ukraine's  wishful thinking. Therefore , the 
previous statement made by Ukraine present ed a new , pathetic and politically -motivated instance 
of storytelling. Contrary to what Ukraine  had stated , the Panel had not  established any facts 
connected with Crimea. It was important that  the Panel had wisely stayed away from  political issues. 
Therefore , her country  made this statement for the sake of clarity as well as to raise concerns with 
potential ly malicious misinterpretations and speculation s as to the outcomes  of this dispute.  
8.6.  The representative of the European  Union  said that his delegation had  participated in this 
dispute as third party and, while it had not tak en a position on the facts of the case, it had put 
forward its interpretation of Article  XXI of the  GATT. As Members  all kn ew, this dispute ha d a special 
systemic importance for WTO Members since this was the first time that a WTO panel had to interpret 
the WTO security exceptions and to apply them to a specific case. Therefore, the  EU wishe d to make 
the following observations. The EU welcome d the Panel's interpretation that strictly follow ed the 
customary rules of interpretation of public international law, as in particular codified in 
Articles  31 and 32 of the Vienna Convention on the Law of Treaties. In particular, the EU commend ed 
the Panel's conclusion that Russia 's invocation of Article  XXI(b)(iii) was within the Panel's terms of 
reference for the purposes of the DSU ( at para. 7.56) and that the Panel ha d jurisdiction to determine 
whether the requirements of that provision were satisfied. On this issue, the Panel had agreed with 
the position put forward by Ukraine and by most of the WTO Members having interven ed as third 
parties in this dispute. The contra ry proposition that Article  XXI of the GATT 1994 was totally 
"self-judging " had simply no basis in the WTO Agreements. As the Panel had held, there was no 
basis for treating the invocation of Article  XXI(b)(iii) of the GATT 1994 as an incantation that shie lded 
a challenged measure from all scrutiny ( at para. 7.100). In particular, the Panel had correctly found 
that for an action to fall within the scope of Article XXI(b), it had to be  objectively found to meet the 
requirements of one of the enumerated subpa ragraphs of that provision, and that evaluation c ould 
not be left entirely to the invoking Member ( at para. 7.82) The EU also welcome d the Panel's 
interpretation of the relevant conditions that ha d to be met for the invocation of Article  XXI(b)(iii) 
of the  GATT to succeed. The Panel's interpretation was consistent with the text, object and purpose 
of the relevant provisions. Article  XXI of the GATT str uck a balance between the legitimate latitude 
for WTO Members to invoke the security exceptions for genuine  security measures and the need to 
curtail potential abuse. This balance was also reflected in the Panel's interpretation. On the one 
hand, Article  XXI(b) c ould not be successfully invoked just in any situation ; rather, such invocation 
was limited to situations enumerated in the subparagraphs of that provision. On the other hand, 
                                                
restrictions with respect to Ukraine due to the entering into force of the "economic part of the EU -Ukraine 
Association Agreement".  
8 Panel Report, para. 7.23.  
9 See, for e xample, Appellate Body Reports in "Japan – Agricultural Products II", para. 129 and "US – 
Gambling", para. 282.  
10 Appellate Body Report, "Indonesia – Import Licensing Regimes", para. 5.28.  WT/DSB/M/428  
 
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  while it was in general left to every Member to define what it consider ed to be in its essential security 
interests, the obligation of good faith require d that Me mbers not use the exceptions under  Article XXI 
as a means to circumvent their obligations under the GATT 1994. Therefore , in the event  of an 
invocation of Article  XXI(b)(iii), it was incumbent on the invoking Member to articulate the essential 
security int erests said to arise from war or other emergency in international relations sufficiently 
enough to demonstrate their veracity. Furthermore, the measures at issue had to  meet a minimum 
requirement of plausibility in relation to the proffered essential secur ity interest, i.e. , they could  not 
be implausible as measures protective of such interests. As the Panel had explained in great detail, 
the negotiating history of Article  XXI also confirm ed that – while considering that the security 
matters reflected in Ar ticle XXI of the GATT ha d a different character from those reflected in 
Article XX, and that Members should have "some latitude " in respect of these matters – its drafters 
had also intended to curtail potential abuse of these security exceptions, inter alia, by subjecting 
them to the dispute settlement provisions. The EU fully recogni zed the special nature of security 
interests covered by the security exceptions, and the need for a margin of discretion for the Member 
invoking these exceptions. However, a s the EU had  explained in its third-party submission in this 
dispute, such discretion c ould not be unfettered, since that could give rise to abuse. As the Panel 
had illustrated, a glaring example of abuse would be where a Member would seek  to release itsel f 
from the structure of "reciprocal and mutually advantageous arrangements " that constitute d the 
multilateral trading system simply by re -labelling trade interests that it had agreed to protect and 
promote within the system, as "essential security interest s" falling outside the reach of that system 
(at para. 7.132) . Regarding th is particular dispute and the measures at issue, in its third -party 
submission the EU had expressed doubts as to whether Russia had met its burden of proof as the 
Member invoking the  exception. The EU t ook note of the fact that the Panel had been  satisfied that 
the situation between Ukraine and Russia since 2014 constitute d an emergency in international 
relations, within the meaning of subparagraph (iii) of Article  XXI(b) of the GATT 1994, that the 
measures at issue were taken "in time " of such emergency , and that Russia ha d satisfied the 
conditions of the chapeau of Article XXI(b) of the GATT. In that regard, the EU underst ood that the 
Panel had found the elements adduced by Russia, also in later stages of the Panel proceedings, as 
sufficient given "the particular circumstances of this dispute " (7.119) and also that the particular 
circumstances of this case explain ed that, "despite its allusivene ss, Russia 's articulation of its 
essentially security interests is minimally satisfactory ", given in particular that nothing suggested 
that Russia had invoked Article  XXI(b)(iii) simply as a means to circumvent its obligations under the 
GATT 1994. Despite the EU 's role as third party, the EU was also compelled to make a remark 
relating to the Panel's factual findings, insofar as they also involve d the EU. In the section on factual 
background and notably in paragraphs 7.6 and 7.7, the Panel Report recount ed certain historic al 
events in an excessively selective manner, with the result of a mistaken impression as to the true 
sequence of events. The Panel Report wrongly g ave the impression that Ukraine had developed the 
intention of seeking economic integration with the EU only following the "Euromaidan events ". 
However, intentions of economic integration through the creation of a free -trade area had been  
programmed and inscribed in an international treaty between Ukraine and the EU in the first half of 
the 1990s , as was incidentally the case between the EU and Russia. In line with these plans, the 
bilateral negotiations between the EU and Ukraine for the conclusion of an Association Agreement, 
including a deep and comprehensive free -trade area, had taken place be tween 2007 and 2011 and, 
thus, well ahead of the initiative relating to the Eurasian Economic Union. It should be clear that 
Article  XXI d id not allow trade restrictive measures against a trading partner solely because that 
trading partner ha d chosen to enter into a free -trade relationship with another WTO Member. In that 
regard, the EU welcome d the Panel's findings that political or economic differences between Members 
were not sufficient, in and of themselves, to constitute an emergency in international  relations for 
purposes of Article  XXI(b)(iii) ( at para. 7.75) . The EU trust ed that this matter had been  of no decisive 
importance for the Panel's legal findings. However, since the facts in question were historically 
important and they involved the EU, an d since they ha d also been the subject of some political 
controversy, the EU consider ed it important to put its remarks on the record. These factual remarks 
notwithstanding, the EU wished  to welcome , once again , the Panel's interpretation of Article  XXI, 
and wished to  thank the panellists  and the WTO Secretariat for their  work on this Report.  
8.7.  The representative of Canada  said that his country  welcome d the Panel's thoughtful and 
well-reasoned interpretive approach to Article XXI in this dispute. The Panel ha d confirmed Canada's 
view that where a responding party ha d invoked Article XXI as a defence, whether the measure at 
issue c ould be justified under Article XXI was a justiciable matter.  Further, it ha d clarified that 
Article  XXI combine d subjective and obj ective legal elements, and that, as an exception to the 
primary obligations, Article  XXI impose d a burden on the responding party to substantiate its claims 
of justification, even where the provision grant ed that party considerable discretion. Therefore , WT/DSB/M/428  
 
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  Canada consider ed that this Panel Report was an important and valuable contribution to the 
clarification of the Members' rights and obligations under the GATT 1994.  
8.8.  The representative of China  said that his country  noted that the DSB was requested at the 
present meeting  to adopt the Panel Report in this dispute . China underst ood that it was the first 
time, since the establishment of this Organization, that a Panel ha d interpreted the "Security 
Exception " provision in the relevant covered agreements and had made an objective assessment of 
the applicability of that provision. The Panel Report in this dispute had addressed certain systemic 
concerns of Members by confirming the jurisdiction of the Panel to exam ine the dispute in relation 
to the "Security Excepti on", and by rejecting the assertion that the "Security Exception " provision 
was entirely self -judging. The Panel Report had also found that Members could  not use the 
exceptions under  Article XXI to circumvent their obligations under the GATT 1994.  China was grateful 
for the work undertaken in relation to this dispute by the Panelists and Secretariat staff for assisting 
them.  
8.9.  The representative of Turkey  said that a s a third party in this dispute , his country wished to 
thank the Panel and the Secretariat staff for their hard work and effort in this dispute. The findings 
of the Panel had confirm ed several points that Turkey had raised as a third party in this dispute. 
Most importantly, the Panel had confirmed that panels had jurisdiction to review a WTO Member 's 
invocation  of Article  XXI and to determine whether the requirements of Article  XXI of the GATT  1994 
were satisfied. With its recommendations, the Panel had drawn the boundaries of Article  XXI and 
taken  a stance aga inst the improper invocation of security exceptions to justify WTO -inconsistent 
economic measures designed to have a trade distorting or protectionist impact. The Panel had 
acknowledged that a Member could  not re -label its economic concerns and economic re lief measures 
as national security concerns or national security measures, thereby shielding such measures from 
multilateral s crutin y. In particular, the poor state of economic health of a domestic industry d id not 
qualify as an emergency in international relations. The national security exception had not been 
included in the multilateral trading system to enable WTO Members to evade their multilateral 
obligations under, for instance, trade remedy agreements or the rules for tariff re -negotiations under 
Article XXVIII . On the characterization of security in relation to tariffs, the Panel had also upheld 
Turkey's view as a third party in this dispute. As Turkey had  argued in its third-party submission, 
Article  XXI left to a very large extent the determination of measures necessary for the protection of 
its essential security interest to the judgement of the country concerned. However, Turkey  also 
consider ed that the discretion of the Member that claim ed to take action f or the protection of its 
essential security interest was not limitless. As the Panel had correctly underlined, essential security 
interest was evidently a narrower concept than security interest. It had been  designed specifically 
to prevent the abusive ado ption of commercial measures under the gui se of national security. This 
mean t that while Members ha d a wide margin  of discretion as to  how they characterize d their 
security interest s, they were not free to elevate any concern to that of an essential securi ty interest, 
and their discretion was limited by their obligation to interpret Article  XXI of the GATT  1994 in good 
faith. In this respect , Turkey  hoped that  this Panel  Report provide d guidance to the entire 
WTO Membership on the proper use of the national  security exception. There was no doubt that 
WTO Members c ould invoke the national security exception when warranted. At the same time, 
WTO Members had to  continue to respect multilateral rules and live up to their commitments under 
the covered  agreements.  
8.10.   The representative of Australia  said that a s a third party to this dispute, his country  wished 
to thank the Panel  and the WTO Secretariat for their work on this complex and significant dispute. 
Australia recogni zed that this dispute raise d significant issues regarding the invocation of Article XXI 
of the GATT, the rights and obligations of WTO Members, and the proper function of dispute 
settlement panels under the DSU. Australia was still considering the Panel Report and the potential 
implication s of the Panel's reasoning. However, Australia  welcome d the Panel's finding that Russia's 
invocation of Article XXI was within the Panel's terms of reference and , therefore , that the Panel had 
jurisdiction to determine whether the requirements of Art icle XXI(b)(iii) were satisfied. Without 
commenting on the other substantive findings of the Panel, Australia wished  to make some broad 
observations . First, in light of the balance of sensitive interests that Article XXI s ought  to 
accommodate, Australia submit ted that each invocation of Article XXI had to  be considered carefully, 
in light of the particular dispute before a panel. Second, while acknowledging the Panel's finding that 
it had jurisdiction to review and make findings  in relation to Article XXI, Australia emphasi zed that 
– in exercising this jurisdiction – the Panel had to  fully respect the significance of the matters dealt 
with by Article XXI.  The deference to a Member's determination of what action "it considers WT/DSB/M/428  
 
- 24 - 
 
  necessary" to protect its essential security interests was explicit in the text of this provision and had 
to be given proper effect. However, Members should be conscious that this deference however was 
not absolute. Australia recall ed that Article XXI(b) was an exception to a Member 's obligations under 
the GATT 1994, and its use was explicitly limited by the text of th at provision and had to  similarly 
be given proper effect. Finally, Australia recall ed that, in over two decades of WTO jurisprudence, 
this was the first time a WTO panel ha d been called upon to consider a Member's invocation of 
Article  XXI. Australia view ed the restraint demonstrated by Members positively and similarly recall ed 
the responsibility of Members to guard against undue use of this except ion.  
8.11.   The representative of the United  States  said that WTO Members had understood, from the 
very beginning of the international trading system, that each Member could judge for itself what 
actions it considered necessary to protect its essential security interests. This had been the position 
of the United  States for over 70  years, since the negotiation of the GATT. That position had been 
shared by every WTO Member whose national security action had previously been the subject of 
complaint, including the European Union, Canada, Russia, and others. In its Report, the Panel had 
concluded that, despite the clear text of Article  XXI, the Panel could review multiple aspects of a 
responding party's invocation of the essential security exception. The United States found the Panel's 
analysis unpersuasive. The United  States was currently involved in litigation concerning these issues 
and, therefore, would not discuss the Panel's interpretation in detail at the present meeting. 
However, the United States call ed Members' attention to several issues with the Panel Report that 
the United States found problematic also for systemic reasons. First, in reviewing Russia's argument 
that Article  XXI was "self -judging", the Panel failed to interpret the provision – Article  XXI – as a 
whole. Instead, the Panel began by saying  it would consider whether the phrase "it considers 
necessary" modified the three subparagraphs (i) through (iii). The Panel disposed of this inquiry a 
mere two  sentences later in the very next paragraph (para.  7.65), hardly the objective examination 
the D SU called for. And later in the same section, the Panel said that it would be contrary to the 
GATT  1994 and WTO Agreements to interpret Article  XXI as a "potestative" or subjective criterion.11 
But in this section, the Panel was not interpreting Article  XXI and had not looked at all of the text of 
Article  XXI. Instead, the Panel drew its premature conclusions on Article  XXI merely on the basis of 
subparagraph (iii). This was not consistent with Article  3.2 of the DSU and customary rules of 
interpretation of public international law. Second, having determined that it could review an 
invocation of Article  XXI, the Panel's assessment of the security issues should have ended there. 
This was because while Russia invoked the exception, consistent with its interpret ation that the Panel 
lacked the authority to review it, Russia had not substantiated a defence. In finding that Russia's 
actions were justified on the basis of essential security, the Panel had made Russia's case for it, 
concluding that the situation betwe en the parties constituted an emergency in international 
relations.12 It was not the role of a WTO adjudicator to make the case for a party. The Panel's 
analysis of XXI(b) was purely advisory given that Russia had not presented arguments. Finally, 
having de termined that the measures at issue were justified under Article  XXI(b)(iii), the Panel's 
assessment of Ukraine's claims should have been at an end. Nevertheless, the Panel had proceeded 
to provide advisory opinions on most of Ukraine's underlying claims – extending over some 20  pages 
of the Panel Report.13 The Panel suggested this was appropriate to "enable the Appellate Body to 
complete the legal analysis" in the event it disagreed with the Panel's findings on Article  XXI, but for 
that purpose the Panel on ly needed to make the relevant factual  findings – leaving to the Appellate 
Body the completion of any necessary legal analysis. The Panel had stated over and over that " had 
the measures been taken  in normal times", Ukraine " would have  made a prima facie  case".14 In 
other words , were the facts different  than they were, the Panel was advising on what findings it 
would make. But the DSU did not provide for a WTO adjudicator to provide an advisory opinion. 
Under Article  7.1 of the DSU, the DSB had charged the Pa nel with making only those findings that 
would assist the DSB in making the recommendation to bring a WTO -inconsistent measure into 
conformity with the covered agreements. This Panel Report was, unfortunately, seriously flawed. 
Even aside from the errors i n its interpretation of Article  XXI, the Panel had failed to interpret the 
entire provision before drawing conclusions on Article  XXI, the Panel had made out the case for a 
                                                
11 Panel Report, para. 7.79.  
12 Panel Report, para. 7.122.  
13 Panel Re port, paras. 7.166 -7.258.  
14 Panel Report, para. 7.154, 7.183, 7.196, 7.257.  WT/DSB/M/428  
 
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  party, and the Panel had issued extensive advisory opinions. This was all contrary to the Panel's 
terms of reference and the  DSU.  
8.12.   The representative of Mexico  said that her country had  not been a third party to this dispute. 
However, Mexico  recognize d that th is dispute addressed a matter of systemic importance for this 
Organization, tha t was, the interpretation of Article  XXI of the GATT  1994 regarding national 
security. In this regard, her country  wished to make the following comments. Mexico agree d with 
the notion that the Panel ha d jurisdiction to examine objective elements of Article  XXI of the 
GATT  1994.15 Mexico also agree d that it was "incumbent on the invoking Member to articulate the 
essential security interests said to arise from the emergency in international relations sufficiently 
enough to demonstrate their veracity" and that "the less characteristic is the 'emergency in 
international relations' invoked by the Member, i.e. the further it is removed from armed conflict, or 
a situation of breakdown of law and public order (whether in the invoking Member or in its immediate 
surrou ndings), the less obvious are the defence or military interests, or maintenance of law and 
public order interests, that can be generally expected to arise".16 
8.13.   The DSB took note  of the statements  and adopted  the Panel Report contained in WT/DS512/R 
and Add.1 . 
9  KOREA – IMPORT BANS,  AND TESTING AND CER TIFICATION REQUIREME NTS FOR 
RADIONUCLIDES  
A. Report of the Appellate Body (WT/DS495/AB/R and WT/DS495/AB/R/Add.1) and 
Report of the Panel (WT/DS495/R and WT/DS495/R/ Add.1)  
9.1.  The Chairman  drew attention to the commu nication from the Appellate Body contained in 
document  WT/DS495/12 transmitting the Appellate Body Report in the dispute: "Korea – Import 
Bans, and Testing and Certification Requirements for Radionuclides", which had been  circulated on 
11 April 2019 in document WT/DS495/AB/R and WT/DS495/AB/R /Add.1. He reminded delegations 
that the Appellate Body Report and the Panel Report pertaining to this dispute had been circulated 
as unrestricted documents . As Members were aware, Article  17.14 of the DSU requir ed that: 
"[a]n Appellate Body report shall be adopted by the DSB and unconditionally accepted by the parties 
to the dispute unless the DSB decides by consensus not to adopt the Appellate Body report within 
30 days following its circulation to Members. This  adoption procedure is without prejudice to the 
right of Members to express their views on an Appellate Body report" . 
9.2.  The representative of the Republic of Korea  said that his country  wished to thank the Appellate 
Body and its Secretariat, as well as the P anel and Secretariat staff having assist ed the Panel, for 
their hard work in these proceedings. Korea also wished to thank the third parties for their 
constructive participation during the course of the proceeding s. Korea was pleased that the Appellate 
Body had reversed the Panel 's erroneous findings that Korea 's import bans and additional testing 
requirements were inconsistent with Korea 's obligations under the SPS Agreement. In fact, Korea 's 
import bans and additional testing requirements had been implemented in response to the tragic 
Fukushima Daiichi Nuclear Power Plant (FDNPP) accident in 2011, which resulted in releasing 
substantial amounts of harmful radionuclides into the marine environment and surrounding areas. 
In 2013, it had been  belatedly  disclosed that large amounts of contaminated water had continued 
to be released from the FDNPP since the accident. As a neighbouring  country,  Korea c ould not but 
take measures to protect its people 's food safety. The measures were designed to respond to t he 
present and potential food risks associated with the unique conditions prevailing in Japan, including 
the substantial deficiencies in the information available about those conditions. Korea welcome d the 
Appellate Body 's finding s and conclusions , which c onfirm ed that the SPS Agreement preserve d 
Members ' right to take appropriate measures to protect the life and health of their people s against 
potential health risks. Naturally, Korea support ed the adoption of the Appellate Body Report and the 
Panel Report,  as modified by the Appellate Body Report. Among the Appellate Body 's findings, Korea 
wished  to highlight three points. F irst, this dispute  was the first that involved the potential adverse 
effect of radionuclides  which ha d unique SPS risks . Contaminants s uch as radionuclides, once 
released, bec ame part of the environment and their incorporation into food products c ould not be 
controlled. This ma de it particularly important to examine environmental conditions prevailing in the 
source country and their poten tial impact on food safety. In this sense, radionuclides were different 
                                                
15 Panel Report, "Russia – Measures concerning Traffic in Transit",  paras. 7.53 -7.58. 
16 Ibid., paras. 7.134 and 7.135.  WT/DSB/M/428  
 
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  from, for example, pesticides or additives, of which humans c ould control the amounts present in 
food products. Considering the specific risks associated with radionuclides, the Panel 's "product -
only" testing, if it had been endorsed by the Appellate Body, would have had serious implications 
for international food safety.  Therefore, Korea highly appreciate d the Appellate Body 's sound 
judgment in reject ing the "product -only" testing and accept ing potential risk factors in evaluating 
the legitimacy of food safety regulation s against radionuclides  under the SPS Agreement.  Second, 
the Appellate Body had also f ound that a regulating Member ha d the right  to determine for itself its 
appropriate  level of protection (ALOP) under Article 5.6 of the SPS Agreement, and that when a 
panel assesse d the appropriateness of a SPS measure, it  had to  carefully consider the regulating 
Member 's entire  ALOP.17 This was significant because the AB 's findings o n the Panel's obligation 
would contribute to preserving Members ' right to decide its citizens ' radiological exposure level, 
without being subject to undue external standard s. Third, the Appellate Body decided that the Panel 
had overstepped  its mandate in finding inconsistency under Article  5.7 of the SPS Agreement as 
neither of the parties had raised a claim under this provision. This mean t that there was a clear 
distinction between provisions that were included as part of a claim on the on e hand, and provisions 
that were proffered as contextual background in the interpretation of another provision, on the other. 
Korea consider ed that this finding ha d systemic value.  Korea was pleased that the WTO dispute 
settlement system ha d reached the ri ght and meaningful outcome in this dispute.  Korea appreciate d 
that the Appellate Body had undert aken its assessment with rigor and care and, in doing so, had 
faithfully adhered to its mandate. Therefore , Korea again support ed the adoption of the Appellate 
Body Report and of the Panel Report, as modified by the  Appellate Body Report in this dispute.  
9.3.  The representative of Japan  said that o n 11 April 2019, the Appellate Body had circulated its 
Report in the "Korea — Radionuclides (Japan) " dispute (DS495) . Although the Appellate Body found 
that Korea had failed to meet the procedural requirements to publish its import bans and additional 
testing requirements ( "measures ") with sufficient information, it had reversed the Panel 's 
substantive findings of these  measures ' WTO-inconsistency based on technical faults in the Panel 's 
reasoning and explanation s. Subsequently, the Appellate Body had failed to resolve the dispute, 
because it had not address ed whether Korea 's discriminatory measures were WTO -inconsistent . His 
country  was deeply concerned that the Appellate Body Report had dismissed the Panel 's findings 
founded on solid scientific evidence. His country  found it troubling that, while reversing the Panel 's 
findings on account of insufficiency of the Panel 's analysis, the Appellate Body Report neglect ed to 
express long -awaited view s on the WTO -consistency of the measures at issue. In essence, the 
Appellate Body Report was not conducive to settlement of the dispute and contradict ed the principle 
stated in the D SU that prompt settlement of disputes was essential to the effective functioning of 
the WTO.  Japan question ed the attitude of the Appellate Body which shie d away from delivering 
judgement on the WTO -consistency of the challenged measures. This unfortunate outcome also 
raised a systemic issue. Japan was keen to discuss, together with other WTO Members, this systemic 
issue collectively. Japan was convinced that  such discussions were essential in order to maintain 
confidence in the WTO dispute settlement system.  Apart from this systemic issue, Japan consider ed 
the rulings of the Appellate Body Report extremely regrettable because the Appellate Body Report 
could h ave significant repercussions for regions, and producers, devastated by the 2011 Great East 
Japan Earthquake. The impact could be felt especially acutely in the food export industr y, notably  
those that export ed fish products. Since the disaster, rebuilding  these industries ha d been a key 
part of Japan 's broader effort to rebuild the economy in the areas affected by the disaster. The 
Appellate Body 's decision could have a negative impact on perceptions of the safety of Japanese 
foods and on those seeking to export their products to countries such as Korea. He wished to remind 
all WTO Members that the factual findings made by the Panel on the safety of Japanese food products 
were undisputed and w ould be adopted by th e DSB at the present meeting . Import restric tions on 
food products whose safety was assured and confirmed multilaterally in adopted findings c ould not 
be justified. Japan w ould continue to call on the countries and territories which maintain ed import 
restriction measures on food products from Japan to expeditiously lift these measures. Japan w ould 
spare no effort to secure the removal of unjustified import restrictions on Japanese food products.  
Additionally, Japan w ould pursue reform of the WTO dispute settlement system. Japan w ould 
constructively e ngage in the ongoing discussion on the dispute settlement mechanism.   
9.4.  Subsequently, Japan's legal expert made the statement to explain Japan's  legal position in 
detail. By way of i ntroduction , he said that  diplomacy constrain ed the words it could  use to express 
its deep disappointment with the Appellate Body 's approach and decision, which w ould have far 
reaching consequences. The Appellate Body ha d deprived Japan of a prompt, satisfactory and 
                                                
17 Appellate Body Report, para. 5.33.  WT/DSB/M/428  
 
- 27 - 
 
  effective resolution to its long -standing dispute with Korea, as required by Article 3 of the DSU. 
Indeed, the Appellate Body 's failure to resolve the dispute call ed into question the very effectiveness 
of the WTO dispute settlement system. Beyond the four walls of the WTO, the livelihoods of Japan 's 
producers  and exporters continue d to be jeopardised by Korea 's measures.  The Panel had found that 
Korea discriminated against Japanese food in an arbitrary manner that did not comport with the 
purported health objectives of its measures. The Panel had also found th at Korea 's severe restrictions 
on Japanese food were not necessary to achieve its SPS objectives. The Panel had also found that, 
when Japan had initiated this dispute in 2015, Korea had abandoned any pretence that it was 
reviewing the extensive scientific evidence  available . With respect to that evidence, the Panel had 
found that Japanese food – like food from elsewhere – fully met Korea 's food safety standards, which 
were stricter than international standards. Indeed, the Panel had found that contamination  levels in 
Japanese food were significantly below Korea 's maximum thresholds. The Panel 's factual findings 
had followed closely the unanimous views of five scientific experts, who had been  appointed by the 
Panel to answer more than one hundred detailed sci entific questions about the safety of Japanese 
food. Korea had not appeal ed the Panel 's findings that Japanese food ha d extremely low levels of 
contamination, well below its strict thresholds.  The Panel 's careful treatment of the scientific 
evidence was left untouched by the Appellate Body 's findings. Instead, the Appellate Body had 
reversed the Panel 's decision, in essence, because the Panel had not explain ed its findings 
sufficiently. After that reversal, the Appellate Body ended its reasoning, failing to  make any findings 
that resolve this dispute.  Japan regret ted that, four years after this dispute had been  initiated, the 
Appellate Body left Japan and its producers with no remedy to secure access to Korea 's market for 
Japanese food products that standing  factual findings demonstrate d full compliance with Korea 's 
strict standards. It was difficult for Japan and, in particular, its producers to understand how the 
WTO could fail to restore market access for Japanese products that had been  shown to meet Korea 's 
standards – again, in factual findings that had not been challenged or reversed on appeal, and that 
would be adopted by th e DSB at the present meeting . The deep sense of injustice was exacerbated 
by several factors: Korea 's measures were arbitrarily dis connected from their purported health 
objectives; Korea maintain ed its measures without reviewing the scientific evidence; Korea ha d 
failed to be transparent in adopting and maintaining its measures; and Korea 's justification for its 
measures had shifted o pportunistically during the Panel proceedings, in particular its description of 
its level of protection.  It was within this context that Japan wishe d to address the following in its 
statement  made at the present meeting : (i) the considerable scientific evi dence on the Panel record 
showing that Japanese food met Korea 's strict standards;  (ii) the shortcomings in the Appellate 
Body's decision under Articles 2.3 and 5.6 of the SPS Agreement ; and (iii) the systemic issues raised 
by the Appellate Body Report in this dispute.  
9.5.  With regard to the issue that Japanese food products met Korea 's standards , Japan said that 
the Panel 's factual findings had been  based on the detailed scientific evidence before it, including 
reports from five Panel -appointed experts. The P anel had asked these experts over 100 questions 
to fully understand the relevant scientific evidence before it. The experts had unanimously 
considered that Japanese food met Korea 's food safety standards by a considerable margin. In 
particular, the followi ng scientific evidence had been  before the Panel. Codex applie d an intervention 
exemption level of 1mSv/year for additional radiation exposure from food contaminated due to 
accidental releases. To implement this level, Codex set a guideline maximum level of 1,000 Bq/kg 
for caesium in commonly consumed food. For rarely  consumed food products, Codex set the 
maximum caesium level at 10,000 Bq/kg. Japan, since soon after the accident, ha d started 
decontamination notably  of the crop land and had introduced food monitoring based on the 
maximum levels for radioactive caesium in food, notably 100 Bq/kg for food in general. The limits 
in food had been  set to meet the same intervention exemption level of the Codex, 1mSv/year , in 
consideration of the released radionuclides and with highly conservative and hypothetical 
assumptions,  including that 50% of the food intake would reach maximum level.  As part of its 
response to the Fukushima Daiichi Nuclear Power Plant (FDNPP) accident, Korea had lowered its 
maximum threshold for radioactive caesium levels in food products from Japan from 370 Bq/kg to 
100 Bq/kg. This had aligned Korea 's maximum thresholds with those of Japan, which had been  
lowered to 100 Bq/kg on 1 April 2012. On 9 September 2013, Korea had extended its 100 Bq/kg 
level for radioactive caesium  to all general food products regardless of the origin .18 With regard to 
the relationship between caesium levels and of other Codex radionuclides, the Panel had found that, 
when caesium levels are under 100 Bq/kg, contamination of food with other Codex radionuclides, 
such as strontium a nd plutonium, w ould be properly controlled. This finding was based on evidence 
relating, in particular, to the type and amount of radionuclides released into the environment during 
                                                
18 Panel Report, para. 2.1 03.   WT/DSB/M/428  
 
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  the accident, as well as their respective absorption pathways into food pro ducts. It was also based 
on food measurements taken as part of Japan 's extensive food monitoring program me. The Panel 's 
experts had agreed that, given the levels of radionuclides released into the environment in the 
accident and the specific properties of the radionuclides in question, when caesium contamination 
was below 100 Bq/kg, other radionuclides w ould be at levels below Korea 's thresholds.   
9.6.  With regard to Japan 's food monitoring , Japan said that s oon after the accident, Japan had 
begun decontamination of the land affected by the accident. It had also introduced food monitoring 
based on its maximum levels for radioactive caesium in food. Japan conduct ed rigorous and 
extensive testing of food products, as well as monitoring of sea water and sediment around the 
FDNPP. The results of this testing were publicly available. The Panel and all five of its experts had 
considered that Japan 's testing was sufficien t to draw reliable conclusions about low contamination 
levels of Japanese food  products .19 The Panel 's experts had confirmed that Japan 's test data show ed 
that caesium levels in Japanese food products were consistently well below Korea 's threshold of 
100 Bq/kg. The evidence also show ed that contamination levels ha d fallen significantly over the 
years following the accident. T he Panel and its experts had also found that, although Japanese food 
made up less than one percent of the Korean diet, a diet consistin g entirely of Japanese food would 
lead to exposure levels that were a tiny fraction of 1 mSv/year.20  
9.7.  With regard to Japan 's distribution restriction on food products , Japan said that i n immediate 
response to the accident, it had  imposed a variety of measur es restricting the distribution and sale 
of certain products from the most affected regions. The response to the FDNPP accident had been  
coordinated horizontally amongst a variety of national government authorities. Th ese included: the 
Nuclear Emergency Re sponse Headquarters (NERH) ; the Ministry of Health, Labour and Welfare 
(MHLW) ; the Ministry of Agriculture, Forestry and Fisheries (MAFF); and the Ministry of the 
Environment (MOE). The national government had coordinated its activities with those of prefe ctural 
and local governments, as well as with the Tokyo Electric Power Company (TEPCO).  Following the 
accident, Japan had imposed domestic restrictions on any food product with caesium levels in excess 
of 100 Bq/kg. These restrictions were maintained until  caesium levels ha d fallen consistently below 
100 Bq/kg. Over time, caesium levels ha d fallen, and Japan ha d been able to lift its domestic 
restrictions. This dispute concern ed food products with caesium levels below 100 Bq/kg that were 
no longer subject t o domestic restrictions. Given the strength of the scientific evidence and the food 
safety control system, Japan w ould continue to call on Korea, and other Members that maintain ed 
import restrictions on Japanese food products, to lift these measures expedi tiously.  
9.8.  With regard to the Appellate Body 's treatment of Article 2.3 of the SPS Agreement , Japan said 
that u nder the first sentence of Article 2.3, the Appellate Body had reversed both the Panel 's 
interpretation and application of the relevant "condition s". The basis for these reversals was technical 
flaws in the Panel 's reasoning. In both instances, the Appellate Body 's approach raised serious 
questions.   
9.9.  With regard to the Appellate Body 's findings on the interpretation of Article 2.3 , Japan said that 
as an interpretative matter, the Panel had found that the relevant "conditions " should be informed 
by the regulatory objective of the measures in question.21 The Panel had not limit ed the relevant 
considerations to any particular factors – it had concluded t hat any factor could  be relevant to the 
extent that it was associated with the SPS objectives pursued. In its conclusion, the Panel had stated 
that nothing in the first sentence of Article 2.3 "would preclude it from considering the risks present 
in products in international trade as the relevant condition ".22 The Panel 's use of the definite article 
"the", in this single sentence within  a long section of the Panel Report, had formed the basis for the 
Appellate Body 's reversal of the Panel 's interpretation.  The Appellate Body had reversed the Panel 's 
interpretation, taking the view that the conditions always had to include consideration of a Member 's 
territory and c ould never be limited to considera tion of the SPS risks arising in food.23 Unusually, in 
reversing the Panel 's interpretation, the Appellate Body had failed to develop its own comprehensive 
interpretation of the relevant "conditions " following the usual rules of treaty interpretation. Indee d, 
while the Panel 's interpretation had spanned five pages and had covered the ordinary meaning, 
context and object and purpose, the Appellate Body had spent a single paragraph on interpretation 
                                                
19 Panel Report, paras. 7.205 -7.209.   
20 Panel Report, para. 7.236.  
21 Panel Report, para. 7.276.   
22 Panel Report, para. 7.276 (emphases added).   
23 Appellate Body Report, para. 5.64.   WT/DSB/M/428  
 
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  that did not follow conventional means of interpretation.24 As noted, the Appellate Body had found 
that territorial conditions always had to be considered under Article 2.3, and the conditions could  
never be limited to consideration of the SPS risks arising in food.25 Japan querie d this position. 
During the Panel 's proceedings, the Panel had asked Korea to explain the implications of its 
interpretation "for measures that address risks not related to the environment or agricultural 
conditions, such as the presence of additives ".26 In that case, the risk being regulated ( that was, the 
risks associated with the presence of an additive) ha d no relation to a Member 's territory. The Panel 
had record ed that Korea had been  unable to answer this question.27 The Panel 's extensive 
interpretive reasoning had addressed this possibility. The Appellate Body 's brief interpretation d id 
not seem to account for such a scenario. Nor had the Appellate Body address ed the Panel 's reasoning 
in this regard. In some respects , the Appellate Body 's reversal of the Panel 's interpretation see med 
also to be at odds with its own reasoning. For example, the Appellate Body state d that "an Article  2.3 
analysis includes consideration of other relevant conditions, such as territorial conditions, to the 
extent they have the potential to affect the pro ducts at issue ".28 This understanding of the relevant 
"conditions " closely mirror ed the Panel 's interpretive approach, which had nonetheless been 
reversed. Thus, as an interpretive matter, the Appellate Body had accepted that territorial (and 
other) conditi ons were relevant only if they ha d a bearing on the SPS risks in food being traded 
internationally. However, if territorial (and other) conditions ha d no bearing on those SPS risks, the 
Appellate Body 's finding require d that a Member 's territory not provid e the relevant "conditions " 
under Article 2.3. This was precisely what had been  found by the Panel, for example, in the case of 
additives to food . Indeed, rather than applying the Vienna Convention  on the Law of Treaties , the 
Appellate Body appeared to have a preconceived view that there always exist ed "relevant territorial 
conditions that may not yet have manifested in product "29 in any SPS case. This was a policy 
judgement which play ed no role in treaty interpretation.  Japan regret ted the Appellate Body 's failure 
to set out a detailed interpretation of the word "conditions " in Article 2.3. This failure mar red the 
Appellate Body 's approach to the Panel 's findings on both the interpretation and application of 
Article  2.3 of the SPS Agreement .  
9.10.   With regard to the Appellate Body 's findings on the application of Article 2.3  of the SPS 
Agreement , Japan said that  the Appellate Body reversed the Panel 's application of Article 2.3 to the 
facts on the basis that the Panel had failed to address adequately territoria l conditions in Japan , and 
that it had failed to account for small differences in levels of contamination in food from Japan and 
elsewhere.  With respect to territorial conditions, the Appellate Body d id a disservice to the Panel, 
because the Panel had considered territorial conditions in Japan. In particular, the Panel had 
addressed the levels of environmental contamination, and had also explained why, given the transfer 
mechanisms to food, the environmental contamination levels d id not imply risks for Japanese food.30 
In so doing, the Panel had accepted the views of its scientific experts. In finding that the Panel had 
not address ed Japan 's territorial conditions, the Appellate Body g ave the Panel no credit at all, under 
Article 2.3,  for these aspects of its findings.  Although the Panel had considered the relevance of 
environmental contamination to the contamination of food, the Panel had devoted more attention to 
the direct evidence of the risks arising in food. Korea 's measures, aft er all, address ed the levels of 
contamination in food. The Panel 's approach had reflected the unanimous views of the Panel 's five 
scientific experts that, when it was possible to measure contamination levels in the food directly, 
the resulting data provide d the best way to assess the SPS risks arising in food. Indeed, if there 
were any meaningful differences in territorial conditions, these w ould be discernible through food 
testing.31 In finding that the Panel had not address ed Japan 's territorial conditions , the Appellate 
Body, again, g ave the Panel no credit at all, under Article 2.3, for this aspect of its findings.  Indeed, 
the Appellate Body appear ed to make factual findings that there were territorial differences that 
could  relate to the different potent ials for food contamination .32 The Appellate Body 's findings were 
based on a selective reading of the Panel 's several statements which had been taken out of context. 
By doing so, the Appellate Body exceed ed its mandate under the DSU.  The Panel, and its five  
                                                
24 Panel Report, paras. 7.261 -7.276; cf Appellate Body Report, para. 5.59.   
25 Appellate Body Report, para. 5.65.   
26 Panel Report, para. 7.268.   
27 Panel Report, para. 7.268.   
28 Appellate Body Report, footnote 280 to para. 5.89 (emphasis added). See also ibid . paras. 5.64 
and 5.91.   
29 Appellate Body Report, para. 5.64.  
30 The Panel considered territorial conditions in the factual section of its Report at paras. 2.44 -2.85. It 
considered them again in its application of Article 2.3, at paras. 7.289 -7.298, 7.315 -7.319.   
31 Panel Report, par as. 7.317. See also ibid . para. 7.92 and footnote 571 to para. 7.93.   
32 Appellate Body Report, e.g. paras.5.73 – 5.76.  WT/DSB/M/428  
 
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  scientific experts, had found that Japan 's food monitoring provided reliable and robust data. In 
reaching this finding, the Panel and its experts had reviewed hundreds of thousands of food 
measurements taken over several years.33 These data showed that contamination levels in Japanese 
food – like food from the rest of the world – were consistently well below Korea 's regulatory 
thresholds. Second, the Appellate Body faulted the Panel for having failed to account for differences 
in levels of contamination in food from Japan and elsewhere. The Panel, however, had not fail ed to 
account for such differences. Rather, it had compared levels of contamination in food from Japan 
and elsewhere in light of the regulatory thresholds in Korea 's measures . These thresholds permit ted 
importation of food from all sources, except Japanese food products, if they ha d caesium levels 
below 100 Bq/kg . The Panel, therefore, had examined whether Japanese food and food from 
elsewhere presented similar risks o f exceeding Korea 's regulatory threshold.  As the Panel had 
explained, caesium levels in food from all sources, including Japan, were well below Korea 's threshold 
of 100 Bq/kg.34 Further, as the Panel 's experts had confirmed, even if Japanese food was exclus ively 
consumed, that would result in radiation exposure far below Korea 's 1 mSv/year limit.35 As such, 
small differences in the absolute levels of contamination in food from Japan and elsewhere, at levels 
far below 100 Bq/kg, were not material in light of K orea's own SPS thresholds. It was surprising and 
disappointing that the Appellate Body fail ed to contend with the implications of Korea 's regulatory 
thresholds, in faulting the Panel for its assessment of differences in levels of contamination in food 
from Japan and elsewhere.  
9.11.   With regard to t he Appellate Body 's treatment of Article 5.6 of the SPS Agreement , Japan said 
that u nder Article 5.6, the Appellate Body reversed the Panel 's findings that Japan 's alternative 
measure – testing for 100 Bq/kg of caesium – would achieve Korea 's ALOP. Again, the Appellate 
Body's reversal was based on technical errors in the Panel 's reasoning and explanation. Under 
Article  5.6, the Panel had found that the ALOP had three prongs: a quantitative exposure limit of 
1 mSv/year and two qualitative elements, namely that exposure should be as low as reasonably 
achievable (ALARA) under 1 mSv/year, and should be limited to the exposure that result ed in the 
ordinary environment absent an accident.36 Before the Panel proceedings, Korea had represented to 
Japan that its ALOP consisted of the first prong, namely, an exposure limit of 1 mSv/year.37 The 
other two prongs had been  added during the Panel proceedings, without supporting evidence, after 
Japan had shown that consumption of it s food would lead to exposure far below 1 mSv/year.  The 
Appellate Body found that the Panel had erred because it had focused its analysis on whether Korea 's 
measures were necessary to ensure a 1 mSv/year exposure limit. The Appellate Body faulted the 
Panel  for having failed to consider "explicitly " the qualitative elements of Korea 's ALOP, including 
their relationship to the 1 mSv/year exposure limit.38 In fact, the Panel had noted that ALARA was 
typically used by a government in setting its appropriate leve l for the 1 mSv/year exposure limit.39 
Indeed, the ICRP and Codex use d ALARA in this way in setting an exposure limit of 1 mSv/year, 
which Korea follow ed.40 The Panel had noted, therefore, that ALARA was a process  for setting  a level 
of protection, and was not a level in itself.41 For the Appellate Body, this reasoning was not 
sufficiently "explicit " in addressing the relationship between ALARA and Korea 's threshold of 
1 mSv/year.42 The Panel had also noted that its scientific experts were not familiar with Korea 's 
notion that exposure to radiation in food should be limited to the human exposure that result ed 
generally in the ordinary environment.43 The Panel  had reasoned, though, that exposure in the 
ordinary environment was often in excess of 1 mSv/year  and, on global average, 3 mSv/year , for 
example, due to the presence of background radiation , and another 1 mSv/year was "a minor 
addition to already experienced doses – or at the same level as that existing in the ordinary 
environment ".44 Although the Panel 's finding had followed the unanimous view of its five scientific 
experts, for the Appellate Body, the Panel 's reasoning had also not been sufficiently "explicit " in 
addressing the relationship between the ordinary environment and Korea 's threshold of 1 mSv/y ear. 
Finally, the Appellate Body also exhorted panels to reject ALOPs, or elements of ALOPs, that were 
                                                
33 Panel Report, paras. 7.199 -7.209.   
34 Panel Report, paras. 7.308 -309.   
35 Panel Report, para. 7.244.   
36 Panel Report, paras. 7.171 -7.172.   
37 Panel Report, para. 7.161.   
38 Appellate Body Report, para. 5.31.   
39 Panel Report, paras. 7.166 -7.168.   
40 Panel Report, para. 7.171.   
41 Panel Report, para. 7.167.   
42 See Appellate Body Report, paras. 5.31 -5.34.   
43 Panel Report, paras. 7.169 -7.170.   
44 Panel Report, para. 7.170.   WT/DSB/M/428  
 
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  too vague or imprecise to serve as a benchmark "level", under Article 5.6, for assessing the necessity 
of an SPS measure.45 The Appellate Body had recogni zed that the Panel 's analyses indicated that 
ALARA and exposure in the ordinary environment would not "serve as a meaningful ALOP or as parts 
thereof ".46 However, the Appellate Body had faulted the Panel for it "did not explicitly examine " or 
had failed to "have explicitly determine " whether the two elements were part of Korea 's ALOP. In 
other words, according to the Appellate Body, the Panel had erred because it had not examine d the 
issue exactly in the way  that the Appellate Body want ed the Panel to follow. This d id not  appear to 
be the proper standard for the  review of panels ' legal analyses.  
9.12.   With regard to the s ystemic concerns raised by the Appellate Body Report in this dispute , 
Japan said that  the Appellate Body had reversed the Pan el's findings under Articles 2.3 and 5.6 of 
the SPS Agreement  based on technical faults in the Panel 's reasoning and explanation, despite 
extensive and unappealed findings that Japanese food complie d fully with Korea 's food safety 
standards, which were str icter than international standards. Despite the fact that Japanese food met 
Korea 's regulatory standards, Japan was left without  resolution of its dispute, or access to Korea 's 
market, four years after having initiat ed WTO dispute settlement proceedings.  The Appellate Body 's 
failure to resolve th is dispute was contrary to its obligation under Article 3 of the DSU, which require d 
the "prompt ", "satisfactory ", and "effective " settlement of disputes. Amongst others, these 
requirements reflect ed the prospective  nature of WTO dispute settlement and the harm caused by 
WTO-inconsistent measures. The Appellate Body 's failure to resolve this dispute was not the outcome 
envisaged by Article 3 of the DSU. It was also not the outcome that Members, like Japan, envisage d 
or deserve d when they engage d in WTO dispute settlement.  Indeed, the Appellate Body 's decision 
raised questions regarding the Member 's confidence in the WTO as a forum for resolving disputes 
between Members. It also raise d questions about the ability of t he WTO dispute settlement 
mechanism to fulfil the promise of "prompt ", "satisfactory ", and "effective " dispute settlement. It 
was simply not satisfactory for a Member to be left without resolution of claims regarding severe 
import restrictions facing its e xports, no matter where that failure result ed from. The present 
situation highlight ed acutely the limitations of the current WTO dispute settlement mechanism. When 
the Appellate Body had reverse d a panel 's findings and was unable, or unwilling, to make fin dings 
as to the consistency of a challenged measure, Members were left without the possibility of a 
satisfactory resolution of their complaint. This was the case even if a panel report was reversed 
because the panel had not adequately explain ed points that  it could easily have explained. In such 
a situation, the dispute settlement system clearly fail ed to fulfil its function. Japan 's concern 
extend ed beyond th is dispute to the broader issue of the ability of WTO dispute settlement to serve 
the interests of WTO Members. The WTO dispute settlement system was at the heart of the 
multilateral trading system. When the effectiveness of the WTO dispute settlement mechanism was 
called into question, the whole system could be affected. Japan, therefore, urge d Members  to 
address this issue at future DSB meetings.  
9.13.   The representative of Canada  said that his country  noted that the Appellate Body had reversed 
the Panel 's findings that the Korean measures were inconsistent with Articles 2.3 and 5.6 of the SPS 
Agreement. The Appellate Body had determined that the Panel had erred in its application of the 
relevant legal standard with respect to these Articles. However, after identifying the Panel 's errors, 
the Appellate Body had not take n the next step of completing the analysis. In the absence of findings 
with respect to whether Korea 's measures were inconsistent with Articles 2.3 and 5.6 of the SPS 
Agreement, the dispute ha d not been resolved. In Canada 's view , any import ban  had to  be 
implemented based on scientific evidence. Canada  urged Korea and Japan to come to a mutually 
agreeable solution to this dispute as soon as possible.  More generally, the outcome of this appeal 
raised systemic concerns. In particul ar, Canada  noted Article 3.4  of the DSU  which state d that 
"recommendations or rulings made by the DSB shall be aimed at achieving a satisfactory settlement 
of the matter in accordance with the rights and obligations under this understanding and under the 
covered agreements ". This had not happen ed in this instance. There ha d been a great deal of 
discussion in the past months on how the DSB might be improved and clarified. This decision 
animate d that discussion. Canada further note d that simply "going back to  what was agreed to in 
1995" would not resolve the issue that was  before Members  at the present meeting. This particular 
case more specifically underscore d that the DSU rules currently d id not provide authority for the 
Appellate Body to direct the original  panel to re -examine the question of whether there ha d been a 
violation of the SPS Agreement based on the correct application of the legal standard for Articles 2.3 
and 5.6.  Canada ha d been a strong advocate for the addition of a remand function for the Ap pellate 
                                                
45 Appellate Body Report, para. 5.34.   
46 Appellate Body Report, para.5.35.  WT/DSB/M/428  
 
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  Body in the DSU negotiations. Adding authority to the DSU for the Appellate Body to remand a 
matter back to the original panel would assist panels, the Appellate Body and ultimately the DSB in 
fulfilling their roles under the DSU to secure a prompt  resolution of a dispute. Without that authority, 
WTO Members such as, in this dispute , Japan, ha d no recourse under the DSU to seek a 
determination that the challenged measures were inconsistent with WTO obligations under existing 
proceedings and , therefore , had to  initiate a new dispute.  
9.14.   The representative of Brazil  said that i n this dispute , the Appellate Body had reversed several 
legal findings that had been  based on scientific evidence and factual findings made by the Panel. By 
way of example, in its analysis of Article  5.6 of the SPS Agreement, the Appellate Body had found 
the Panel's conclusion to be "in tension with " prior statements made in the analysis.47 Brazil fail ed 
to see this "tension ". In Brazil 's opinion, the findings by the Panel reg arding the alternative measure 
proposed by Japan and Korea's ALOP c ould be integrated to support the Panel's conclusion under 
Article  5.6. Brazil recall ed that in situations where evidence show ed that a less trade -restrictive 
measure achieve d the relevant level of protection, the SPS measure was inconsistent with the SPS 
Agreement. Brazil believed that  Appellate Body findings should achieve "a satisfactory settlement of 
the matter" as stated in Article  3.4 of the DSU. Brazil  wished to clarify, however, that  this d id not 
call into question the broader work developed by the Appellate Body in this Report and its overall 
contribution to the dispute settlement system.  
9.15.   The representative of New Zealand  said that his country  share d the view that, as explained 
by ot her third parties including Canada, it was unfortunate that issues in this dispute remain ed 
unresolved as the Appellate Body had not made  final determinations regarding the consistency of 
the measures at issue with the provisions of the SPS Agreement.  
9.16.   The representative of the United  States  said that t he United  States continue d to review the 
reports in this highly technical dispute.  Given that review, the United  States  consider ed it regrettable 
that the appellate report had reversed certain of the panel's f indings, in particular as the panel had 
concluded (and the scientific experts consulted by the panel had agreed) that the Japanese exports 
satisfied Korea's level of protection for food safety. The United  States  recall ed, however, that the 
appellate report  had not conclude d that imports of fish products from Japan were unsafe, and it 
would be improper to draw such a conclusion on the basis of a report that appear ed to reverse 
certain panel findings on non -substantive grounds .  
9.17.   The representative of the European Union  said that his delegation  underst ood Japan 's 
disappointment with the procedural situation in this dispute.  Members – including the E U – were 
often in the situation where the Appellate Body, in the absence of undisputed facts on the record – 
could not complete the analysis after having had to reverse the findings of the Panel because of legal 
error. There were certain shortcomings inherent in the current system that ha d been the subject of 
discussions amongst Members, in particular as part of  the DSU negotiations . However, the EU 
consider ed that the Appellate Body ha d fully and properly discharged its responsibilities within the 
system as it currently st ood. 
9.18.   The representative of China  said that his country  noted  the Report in the "Korea — 
Radionuclides (Japan) " dispute (DS495)  to be adopted at the present meeting. Without prejudice to 
China's position  on substantive issues addressed in the Report, his country wished  to share some 
observations in this dispute . China noted that the Appellate Body's reversal was mainly based on 
the Panel 's insufficient analysis and its failure to explain its legal findings on certain  issues. However, 
the Appellate Body 's hands were tied since the DSU only allow ed it to review the m ethod  of a panel's 
fact finding rather than to redo the whole fact investigation by itself and complete the analysis 
thereafter. This dispute was another typical example that highlight ed the importance of Article 11 of 
the DSU. A panel had to  make an objective assessment o f the matter before it, including an objective 
assessment of the facts of the case and the applicability of and conformity with the relevant covered 
agreement. A panel 's role as the "trier of facts " did not grant it a monopoly over fact finding. In 
general , fact ual issues should not be addressed by the Appellate Body, but whether a panel had 
fulfilled its objective assessment obligation was an issue of law that was subject to appellate review. 
This was not a backdoor for the Appellate Body to review facts, but rather a delicate and important 
safety valve to correct potential egregious error s by a panel which would otherwise frustrate the 
positive resolution of a dispute. China believed that  the Appellate Body was fully aware of its 
mandate and ha d taken a ca utious approach to deal with Article 11 of the DSU appeals. There had 
                                                
47 Appellate Body Report, para. 5.30.  WT/DSB/M/428  
 
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  been only a limited number of appeals regarding Article 11 of the DSU and different findings had 
been made by the Appellate Body: two of them were confirmed inconsistent with Article 11  of the 
DSU because the panel had exceeded its mandate or had failed to sought evidence, and one had 
been subject to judicial economy. Given its important function, Members could further explore how 
to improve the practice under  Article 11  of the DSU . However, any Appellate Body reform that aim ed 
to remove Article 11 of the DSU from the Appellate Body 's jurisdiction w ould undermine the Appellate 
Body's function in solving disputes.  
9.19.   The representative of Colombia  said that his country  wished  to raise a g eneral systemic 
concern regarding the proper use of SPS measures. His country was not a third party in this disput e 
and did not wish to comment on the substance of this case.  Colombia wished  to recall that its 
statement should by no means be construed as undermining the right of Members to defend 
legitimate objectives such as the protection of human life and health through appropriate SPS 
measures, when it was clear that those values were at stake in a specific situation. Colombia 
believed,  however, that this disput e serve d as an important reminder that Members should bear in 
mind the necessity of taking good care not to restrict trade more than it was strictly necessary in a 
particular situation.  Colombia  was concern ed that some Members were deviating  from the Codex in  
adopting their SPS measures.  This undermine d international standards that ha d been developed 
with a view to enabling Members to take appropriate health measures in a transparent manner that 
did not improperly restrict international trade. Colombia  also consider ed that SPS measures were 
justified only in the situations that were clearly provided for in the SPS Agreement. Finally, Colombia 
wished  to recall the important role that transparency and due process play ed in imposing SPS 
measures.  Members should not approach these requirements as a mere technical step in imposing 
measures that they consider ed necessary, without conducting "in extens o" a proper assessment of 
the safety of the products affe cted by a specific SPS measure that g ave due consideration to the 
rights and livelihood of producers affected  by such measures.  
9.20.   The representative of Ecuador  said that his  country ha d followed this dispute  with great 
attention . Ecuador believed that it  was in the interest of all Members that the WTO dispute settlement 
system was efficient, that its decisions were issued  within the time -frames set out in the DSU, and 
that it produced  results that led to positive resolutions of disputes between Members. From  a 
systemic point of view, it was important that decisions of the Appellate Body resolv ed disputes. 
Otherwise, there would be no  clarity for the disputing parties. Members had to  ensure  that the 
dispute settlement system  continued to work  and that its func tioning was improved through 
amendments to be agreed by  all Members .  
9.21.   The representative of Peru said that his country followed the SPS issues at the WTO  with great 
interest.  Members were aware of Peru's concerns raised  in meetings of the SPS Committee. Members 
were also  aware of Peru's  interest in ensuring that the dispute settlement mechanism  worked well. 
Peru noted  that the WTO dispute settlement proceedings were lengthy and expensive for disputing 
parties and were of great political  importance for Members to enable them to avoid trade tensions . 
Like other Members, Peru believed that the fundamental objective of the WTO dispute settlement 
mechanism  was to  determine clearly whether or not  a challenged measure was inconsistent with the 
WTO Agreements . In addition, the WTO dispute settlement mechanism had to accomplish this task 
in an expeditious manner . Peru underline d that the expeditious resolution of disputes by the WTO 
dispute settlement mechanism was and had to  be one of the fundamental objectives of the 
discussions held in the other WTO for um aimed at improv ing the rules for the proper functioning of 
the WTO dispute settlement mechanism.  Peru reiterated  its commitment to engage in these 
discussions , which  would help to avoid similar situations like the one in which the WTO dispute 
settlement mechanism currently f ound itself.  
9.22.   The representative of the Kingdom of Saudi Arabia  said that his country  maintain ed its strong 
commitment to the rules -based multilateral trad ing system and to the work of the different WTO 
bodies and particularly the DSB. The WTO dispute settlement system  and its Appellate Body ha d 
been key to the security and predictability of the multilateral trading system. Saudi Arabia wished  
to indicate th at in cooperation with Japan,  it had sent technical teams in 2018  to investigate on the 
safety of food products imported from Japan. The teams had recognized and confirmed the safety 
of such products and had recommended the removal of the ban. Based on this, Saudi Arabia ha d 
lifted its ban on imports of Japanese food products in 2018 . 
9.23.   The representative of Pakistan  said that his country  had received with interest the Report of 
the Appellate Body in this dispute and had heard the statements of both disput ing parties under th is WT/DSB/M/428  
 
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  Agenda item . Pakistan  firmly believe d that the WTO 's dispute settlement mechanism was the most 
appropriate and effective way to resolve disagreements on the legality of measures. At the same 
time, Pakistan also believe d that Members had a responsibility to implement the WTO Agreements 
in good faith while avoiding unnecessary restrictions in international trade. Pakistan  also s aw value 
in following scientific bases in designing food safety measures to the maximum extent.  Pakistan ha d 
been a consistent supporter of upholding the integrity and independence of the Appellate Body. 
Pakistan  recogni zed that a process was underway in the WTO where any concerns raised by Members 
about the dispute settlement system, including those on Appellat e Body reports , were being 
discussed. Pakistan  hoped that the process would be fruitful in addressing any concerns and that it 
would strengthen the dispute settlement mechanism for the benefit of the entire Membership.  
9.24.   The representative of Malaysia  said t hat his  delegation follow ed with great interest th is issue 
and welcome d the Report of the Appellate Body  contained  in document WT/DS495/AB/R and 
WT/DS495/AB/R /Add.1 . Malaysia w ished  to highlight a systemic concern regarding  this issue. 
Malaysia wished  to express that it was crucial for the Appellate Body to provide clarity in its findings 
so that dispute s could be resolved effectively and positively with the limited resources that 
Members  had. 
9.25.   The representative of  the Republic of Korea  said that at , the present meeting , Japan had 
provided extensive assessments of the Panel and Appellate Body rulings  in this dispute . Korea 
disagree d with most of them . Korea wished  to make  two observations on Japa n's views . First, 
regarding Japan 's continuous reference  to some of the Panel 's findings, Korea underst ood that, by 
reversing virtually all rulings and recommendations rendered by the Panel, the Appellate Body ha d 
effectively declared that all relevant intermediate findings by the Panel, whether factual or legal, 
were of no legal effect.  Therefore, Japan 's assertion that some of the Panel 's factual findings ha d 
somehow survived the Appellate Body 's scrutiny was nothing more than "beating a dead horse ". 
Moreover, the Appellate Body 's findings were grounded on the premise that the ecological and 
environmental condition s in Japan ha d the "potential to affect " Japanese food products, and that 
Korea 's measures were desi gned to address such potential risks.  It was on that basis that the 
Appellate Body ha d rejected the Panel 's rulings and recommendations.  In fact, the Appellate Body 
had recognized the potential food risks associated with the prevailing condition s in Japan.  Second, 
with regard to systemic concerns raised by Japan, Japan had  asserted that the Appellate Body had 
failed to make findings necessary to assist the DSB in making the recommendations or in giving the 
rulings provided for under the covered agreements in this dispute . Korea disagree d. In Korea's view, 
contrary to Japan 's assertion, the Appellate Body had positively and satisfactorily resolved th is 
dispute.  In the WTO dispute settlement system, a panel or the Appellate Body 's mandate was to 
review and fin d whether or not a challenged measure was inconsistent with the covered agreements. 
Also, the burden of proving such inconsistency rest ed with the complaining party.  In this dispute , 
the Appellate Body had properly found that Japan ha d failed to demonstrate that Korea 's measures 
were inconsistent with the obligations enshrined in the SPS Agreement. As a well -established 
principle of public international law, a presumption of good faith implementation naturally attache d 
to Korea 's measur es. Thus, with the Appellate Body 's reversal of the Panel 's finding  of inconsistency,  
Korea 's measures should be regarded as WTO -consistent. As such, the Appellate Body ha d 
adequately served its function to resolve th is dispute. Furthermore, Korea note d that, in its appeal 
in this dispute , Japan had limited itself to arguing that the Panel 's approach had been  correct and 
that the Appellate Body should have upheld the Panel 's findings.  There had been  no request by Japan 
for the Appellate Body to conduct furt her work , i.e., to complete the analysis,  in the event that the 
Appellate Body would disagree with the Panel 's approach. At the same time, WTO Members ha d 
been cautioning the Appellate Body to exercise restraint and to not go beyond what was strictly 
neces sary to address the participants ' appeals. It was regrettable that Japan now s ought  to blame 
the Appellate Body for failing to do something that Japan had never requested it to do. Korea also 
wished  to stress one more point in this context. WTO Members including Japan ha d used the dispute 
settlement system for more than 20 years and all Members knew the system very well. Article 3.7 
of DSU mandate d that Members "exercise its judgement as to whether action under these procedures 
would be fruitful " before bringing a case. Korea believe d that Japan had to  have brought this case 
to the dispute settlement mechanism based on the best available knowledge of the current system. 
Triggered by and in accord ance with Japan 's panel request, disputing parties, panels, AB members 
and relevant Secretariats ha d exhausted all their efforts to secure a positive outcome to th is dispute 
under the current system over about four years. Finally, disputing parties  had a definit ive outcome 
on the basis of which disputing parties co uld and should resolve th is dispute. If Japan had any doubt 
about the proper functioning of the system in this dispute , it should have taken  that consideration 
into account before bringing its case  as mandated by Article 3.7 of the DSU. Korea , again , had to WT/DSB/M/428  
 
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  express its strongest support for the Appellate Body Report in this dispute , keenly aware of the 
difficult situation that the Appellate Body was confronted with, in addition to  its already onerous task 
of conducting a sophisticated legal review.  Korea highly respect ed how the Appellate Body had 
nonetheless preserved its dignity and integrity as the highest judicial body of the WTO 's dispute 
settlement mechanism.  
9.26.   The representative of Japan  said that Korea had raised many points in its second intervention. 
Japan d id not agree with any of them. However, as those points had been  fully addressed in Japan's  
previous statement  made under this Agenda item , Japan would  not repeat its positions . With regard 
to systemic issues, Japan w ould continue to d iscuss those issues  in the DSB.  
9.27.   The DSB took note  of the statements and adopted  the Appellate Body Report contained in 
WT/DS495/AB/R and Add.1 and the Panel Report contained in WT/DS495/R and Add.1, as modified 
by the Appellate Body Report . 
10  PROPOSED NOMINATIONS FOR THE INDICATIVE LIST OF G OVERNMENTAL AND 
NON-GOVERNMENTAL PANELIS TS (WT/DSB/W/640)  
10.1.   The Chairman  drew attention to document WT/DSB/W/640, which contain ed new names 
proposed by Norway for inclusion on the Indicative List of Governmental and No n-Governmental 
Panelists, in accordance with Article  8.4 of the DSU. He propose d that the DSB approve the name s 
contained in document  WT/DSB/W/640.  
10.2.   The DSB so agreed . 
11  APPELLATE BODY APPOI NTMENTS: PROPOSAL BY  ARGENTINA; AUSTRALI A; BENIN; 
THE PLURINATIONAL S TATE OF BOLIVIA; BRA ZIL; CANADA;  CENTRAL AFRICAN 
REPUBLIC; CHILE; CHINA; COLOMB IA; COSTA  RICA; CUBA ; DOMINICAN  REPUBLIC ; 
ECUADOR; EGYPT; EL  SALVADOR; THE EUROPEA N UNION; GUATEMALA; HONDURAS; 
HONG  KONG, CHINA; IC ELAND; INDIA; INDONE SIA; ISRAEL; KAZAKHS TAN; KOREA; 
LIECHTENSTEIN; MEXIC O; MOROCCO;  NEW  ZEALAND; NICARA GUA; NORTH MACEDONIA ; 
NORWAY; PAKISTAN; PA NAMA; PARAGUAY; PERU ; THE RUSSIAN  FEDERA TION; RWANDA; 
SINGAPORE; SWITZERLA ND; THE SEPARATE CUS TOMS TERRITORY OF TA IWAN, PENGHU, 
KINMEN AND MATSU; TU RKEY; UK RAINE; URUGUAY; THE BOLIVARIAN REPUBLIC OF 
VENEZUELA AND VIET  NAM (WT/DSB/W/609/REV .10) 
11.1.   The Chairman  said that t his item was on the Agenda of the present  meeting at the request of 
Mexico, on behalf of several delegations. He drew attention to the proposal contained in document 
WT/DSB/W/609/Rev.10 and invite d the representative of Mexico to speak.  
11.2.   The representative of Mexico , speaking on behalf of the co -sponsors of the proposal contained  
in document WT/DSB/W/609/Rev. 10, said that the delegations in questio n had agreed to submit the 
joint proposal dated 15 April 2019  to launch the AB selection processes . Her country  welcome d 
Morocco and the Central African Republic as new co -sponsors of the proposal.  Mexico,  speaking on 
behalf of these 75 Members, wished  to state the following . The considerable number of Members 
submitting this joint proposal reflect ed a common concern with the current situation in the Appellate 
Body that was seriously affecting its functioning  and the overall dispute settlement system against 
the best interest of its Members. WTO Members ha d 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, as set out  in the joint proposal before the DSB 
at the present meeting . This proposal s ought  to: "(i) start four selection processes: one process to 
replace Mr. Ricardo Ramírez -Hernández, whose second term expire d on 30 June 2017; a second 
process to fill the vacancy that resulted from  the resignation of Mr. Hyun Chong Kim with effect from 
1 August  2017; a third process to replace Mr. Peter Van den Bossche, whose second term expired 
on 11 December, 2017; and a fou rth process to replace Mr. Shree Baboo Chekitan Servansing,  
whose four -year term of office expire d on 30 September  2018; (ii) to establish a Selection 
Committee; (iii) to set a deadline of 30  days for the submission of candida tes; and (iv) to request 
that the Selection Committee issue its recommendation s within 60  days after the deadline for 
nominations of candidates ". The proponents were flexible with regard to  the deadlines for the 
selection processes , but believed that Members  should consider  the urgency of the situation . Mexico  
continue d to urge all Members to support this proposal in the interest of the multilateral trad ing WT/DSB/M/428  
 
- 36 - 
 
  system and the dispute settlement system .  
11.3.   The representative of the United  States  said that the United States thanked the Chair for the 
continued work on these issues. As the United States had explained in prior meetings, the United 
States was not in a position to support the proposed decision. The systemic concerns that the United 
States had identified remained unaddress ed. As the United  States had explained at recent DSB 
meetings, for more than 15  years and across multiple US Administrations, the United  States had 
been raising serious concerns with the Appellate Body's disregard for the rules set by WTO Members.  
Through persistent overreaching, the WTO Appellate Body had been adding obligations that had 
never been agreed by the United States and other WTO Members. The 2018 US Trade Policy Agenda 
outlined several long -standing US concerns .48 The United States had raised rep eated concerns that 
appellate reports had gone far beyond the text setting out WTO rules in varied areas, such as 
subsidies, anti -dumping duties, anti -subsidy duties, standards and technical barriers to trade, and 
safeguards, restricting the ability of the  United States to regulate in the public interest or protect US 
workers and businesses against unfair trading practices . And as the United States had explained at 
recent DSB meetings, the Appellate Body had issued advisory opinions on issues not necessary to 
resolve a dispute and had reviewed panel fact -finding despite appeals being limited to legal issues . 
Furthermore, the Appellate Body had asserted that panels must follow its reports although Members 
had not agreed to a system of precedent in the WTO, an d had continuously disregarded the 90 -day 
mandatory deadline for appeals – all contrary to the WTO's agreed dispute settlement rules . And for 
more than a year, the United States had been calling for WTO Members to correct the situation 
where the Appellate Body acted as if it had the power to permit ex -Appellate Body members to 
continue to decide appeals even after their term of office – as set by the WTO Members – had 
expired . This so -called "Rule 15" was, on its face, another example of the Appellate Body' s disregard 
for the WTO's rules. US concerns had not been addressed . When the Appellate Body abused the 
authority it had been given within the dispute settlement system, it undermined the legitimacy of 
the system and damaged the interests of all WTO Member s who cared about having the agreements 
respected as they had been negotiated and agreed . The United States would continue to insist that 
WTO rules be followed by the WTO dispute settlement system, and would continue its efforts and its 
discussions with Me mbers and with the Chairman to seek a solution on these important issues . 
11.4.   The representative of the European Union  said that his delegation wished to  refer to its 
statements on this issue made at  previous DSB meetings, starting in February 2017. WTO Members 
had a shared responsibility to resolve this issue as soon as possible, and to fill the outstanding 
vacancies as required by Article  17.2 of the DSU. The EU  wished to  thank all Members that ha d 
co-sponsored the proposal to launch the AB selection  processes. The EU  invite d all other Members 
to endorse this proposal. The EU  also wish ed to recall that concrete proposals ha d been submitted 
to the General Council with a view to unblocking the AB selection processes . The EU  invite d all 
Members to engage co nstructively in these discussions so that the vacancies could be filled as soon 
as possible. The EU w ished  to stress that the objective behind these proposals was to address – in 
a forward -looking manner – the concerns that ha d been raised in relation to t he functioning of the 
Appellate Body. Contrary to what the U nited States had suggested at the 25 February 2019  DSB 
meeting, the intention behind these proposals was not to "permit what is now prohibited ". If adopted, 
these changes in the DSU would have a concrete impact on the way in which the Appellate Body 
operate d, in a direction that the EU  underst ood was being sought by the U nited States. The EU also 
wishe d to make clear that the fact that the EU had  made these proposals d id not mean that the EU 
agree d with the concerns expressed by the U nited States. In particular, the EU  disagree d with the 
general proposition that the "Appellate Body has felt free to depart from what WTO Members agreed 
to". At the 25 February 2019  DSB meeting , the U nited States had  raised a number of specific 
questions. The EU believed that if Members  wished  to find a solution to the current impasse, 
Members  should be having a forward -looking discussion and not continuously re -litigate their 
differences as to the reading of the curren t rules. And the EU was looking forward to continuing such 
forward -looking discussion in the informal General Council process. Th e EU wished  to place the 
following brief observations  on the record . With regard to Rule 15  of the Working Procedures for 
Appellate Review , this was a common -sense rule that had been  adopted in 1996 under the Appellate 
Body's authority to draw up its working procedures pursuant to  Article  17.9 of the DSU. The 
Appellate Body had done  so after having consult ed the DSB Chair who  in turn had consulted with 
the WTO Membership. The U nited States had not  express ed on the record  any concerns with this 
rule being part of the Working Procedures for Appellate Review , neither at th at time nor during the 
more than two decades of its applic ation that had followed . With regard to Article  17.5 DSU and the 
                                                
48 Office of the US Trade Representative, 2018 President's Trade Policy Agenda, at 22 -28. WT/DSB/M/428  
 
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  issue of 90 days, the EU had  explained its position at the 22 June 2018  DSB meeting . The EU agree d 
that Article  17.5 of the DSU set out a clear obligation to comply with  90 days. However, the  EU did 
not agree that the AB ha d "decided to ignore " that time -frame. There were objective reasons that 
explain ed why appeals t ook longer , such as the number of appeals, increasingly large and complex 
cases, resource issues and the number of serving Appel late Body members. At the same time, it 
was also clear that Article  17.5 of the DSU d id not attach any procedural consequence to exceeding 
the 90 -day time -frame. Consequently, late reports were subject to the same adoption procedure as 
timely reports. Fina lly, with regard to Article  17.6 DSU, the EU  wished to refer to its statements 
made at  the DSB meetings o f 27 August and 26 September 2018. It was clear that only the panels 
were the triers of facts and that the scope of appellate review was and should be limited to legal 
issues. It was also clear that one possible legal issue that could  arise on appeal was whether a panel 
had failed to discharge its responsibilities under the DSU, including its duty to conduct an objective 
assessment of the  facts of the case, as specified in Article  11 of the DSU. These rules were clear and 
the EU believed that the Appellate Body ha d not exceeded its mandate as delimited in particular by 
Article s 17.6 and 17.12 of the DSU. At the same time, because the appli cation of these rules could  
sometimes prove difficult in concrete cases, the EU and other  Members  had proposed to clarify, 
through a DSU amendment, that issues of law d id not include panel findings with regard to the 
meaning of municipal measures. Of cours e, Members could  have different views on particular 
Appellate Body reports. Article  17.14 of the DSU preserve d Members ' right to express these views 
at DSB meeting s and the EU, as well as others, ma de use of this right whenever they disagree d. On 
a general note, it was not clear how any of the above issues explain ed the blockage of new Appellate 
Body appointments. It was also not clear to the EU  how the blockage of appointments w ould result 
in the "Appellate Body […] follow[ing] the rules we a greed to in 1995 ", which was what the 
United States had said it s ought . If the blockage continue d, there w ould soon be no Appellate Body 
left to follow any rules. To conclude, the EU w ished  to reiterate once more its willingness to discuss 
these issues in the General Council process in a constructive and forward -looking manner so that 
the appointments c ould be made as soon as possible.  
11.5.   The representative of Canada  said that his country  support ed the statement made by Mexico.  
It had been twenty -four months since the initiation of AB selection  process es was first proposed.  
Canada deeply regret ted that the DSB ha d not been able to comply with its legal obligation under 
Article  17.2 of the DSU to appoint Appellate Body members to fill t he vacancies. The text of the DSU 
was clear: "vacancies shall be filled as they arise". This requirement d id not provide for exceptions 
or justifications not to replenish the Appellate Body. The inability to select and appoint new Appellate 
Body members c ould only increase the necessity of relying on Rule 15  of the Working Procedures 
for Appellate Review , and the challenges of meeting the 90 -day time -period to issue AB reports. This 
situation was at odds with the concerns that the United  States ha d expresse d regarding that practice.  
Canada share d the disappointment expressed by several other Members regarding the U S decision 
not to join the consensus to move forward with the proposal.  Canada  support ed the informal process 
led by the Chairman  under the auspic es of the General Council to discuss the various proposals 
aimed at  address ing US concerns.  Canada  noted that many proposals ha de been made under that 
process in an attempt to address US concerns. Canada also took note of the US statement made 
under this Agenda item  in which it had stated its readiness to engage with other Members to resolve 
the issues that it ha d raised.  Canada call ed on the United States to meaningfully engage in 
constructive discussions that were aimed at fixing the problems it perceive d with the system.  Canada 
remain ed committed to working with other interested Members, including the United States, with a 
view to address ing those concerns and undertak ing the AB selection process es expeditiously. Canada  
invite d Members that had not yet s ponsor ed the proposal , contained  in document 
WT/DSB/W/609/Rev.10  to launch the AB selection process es, to give it the attention it deserve d, 
and to support it. Canada  welcome d Morocco and the Central African Republic  to the group of 
co-sponsors of this proposal.  
11.6.   The representative of Hong Kong, China  said that his delegation wished to refer to its 
statements made at previous DSB meetings and to reiterate its disappointment and concern that 
the impasse in the AB selection processes remain ed unresolved. His delegation  appreciate d the 
efforts made by various Members to address some Members' concerns with the Appellate  Body in 
the informal process under the auspices of the General  Council. Hong Kong, China was committed 
to engaging constructively to find a solution as soon as possible. Hong Kong, China  urged all 
Members, in particular those that had raised systemic concerns , to do the same. Nevertheless, 
Hong Kong, China  had to  emphasize that the discussion on the improvement  of the DSU should not 
be a reason to delay the launch of the AB selection processes . It was not justifiable to attach WT/DSB/M/428  
 
- 38 - 
 
  preconditions to the launch  of the AB selection process es. Hong Kong, China  called on all Members 
to lift the blockage of the Appellate  Body appointments without further delay.  
11.7.   The representative of Morocco  said that his country  was consci ous of the magnitude of the 
imminent  systemic risk faced by  the multilateral trading system due to  the blockage of the AB 
selection process es, and that it was  convinced that this risk would have negative impacts on 
international trade and world stability . Accordingly, Morocco  joined the list of the co -sponsors of the 
proposal contained in document WT/D SB/W/609/Rev.10 and call ed on all WTO  Members to engage 
with a constructive and solution -oriented attitude to preserve the credibility and to ensure the 
sustainability of the multilateral trading system. And this c ould only be achiev ed by separating the 
AB selection processes  from the discussions on rules and procedures of the Appellate  Body. Morocco 
also support ed the efforts of the Chairman , as Facilitator , to address the disagreements related to  
the Appellate  Body, in overcom ing this impasse.  
11.8.   The representative of Chile said that as a co -sponsor of the proposal  contained in document 
WT/DSB/W/609/Rev.10, his country wished to be  associate d with Mexico's statement,  which 
reiterate d the urgency of promptly launching the AB selection processes. Chile recall ed that at the 
19 April 2017 DSB meeting, i.e. , more than two years ago, a group of Latin American delegations , 
including  Chile,  had made a joint statement in which they had sought , for the first time , to launch  
the AB selection processes. Now, t wo years later, it remain ed necessary and urgent to launch the 
AB selection processes.  
11.9.   The representative of New Zealand  said that his country  wished to reiterate its support for 
the co -sponsored proposal and emphasi zed the importance of commencing the AB selection 
process es as soon as possible. New Zealand  also noted the concerns regarding  the effects of the 
impasse expressed at the present meeting  by various Members under Agenda item 4. New Zealand  
welcome d discussions on the current impasse through the informal process under the auspices of 
the General Council and was focused on the need to identify solutions to the issues  raised . 
11.10.   The representative of Cuba said that his country, s peaking on behalf of the members of the 
Latin American and Caribbean Group (GRULAC) that were also WTO Members, w ished  to underline, 
once again, their deepest concern with regard to the status of the AB selection processes . It was in 
no way positive or constructive that the search for a solution to a matter as significant as this  one 
remain ed unresolved and that a political agenda undermine d the bases  of the multilateral trading 
system. The GRULAC welcome d the establishment  of a forum at the highest level that c ould 
contribute to un blocking the prolonged paralysis of the AB selection processes. A number of 
proposals ha d been submitted, which were aimed  at achiev ing this objective . Some of th ese 
proposals  had been submitted by WTO M embers from the GRULAC  region . GRULAC WTO Members 
had frequen tly listened to concerns that ha d been voiced with respect to the functioning of the 
Appellate Body , which purportedly impede d the launch of the AB selection processes. However, Cuba 
wished  to underline , once again, that under Article 17.2 of the DSU, vacan cies shall be filled "as they 
arise".  Compliance with this obligat ion had been violated repeatedly.  GRULAC WTO Members had  
expressed their willingness to consider the  proposals that could un block th e AB impasse. They were 
still eagerly awaiting propos als that aim ed at unblocking the AB selection processes. The search for 
a solution to systemic  concerns  should not be an obstacle to the  function ing of the dispute 
settlement system. All Members should demonstrate a willingness to find solutions. Cuba wished to 
reiterate the willingness of GRULAC WTO Members  to contribute to  finding a definit ive and urgent 
solution to this problem, as well as supporting the Chairman's  efforts to this end . 
11.11.   The representative of Australia  said that her country  wished to refer to its statements made 
at previous DSB meetings on this matter and to reiterate its serious concerns regarding the DSB 's 
inability to commence the AB selection process es. To this end, Australia  welcome d the leadership 
provided by the Chairman , as Facilitator of the General Council 's informal process on Appellate Body 
matters. Australia  wished to thank Members for their valuable contributions at the recent meetings 
of the General Council 's informal process. Australia remain ed committed to this proces s and noted 
that there were many more points to discuss to narrow down the issues and build a package of 
solutions. Australia encourage d other  Members  with constructive contributions to come forward to 
help steer debate towards concrete proposals and solut ions in the interest of all Members.  
11.12.   The representative of Chinese Taipei  said that his delegation  simply wished to refer to its 
statements made at previous DSB meetings. His delegation looked forward to effective engagement 
by all Members in order to resolve this impasse.  WT/DSB/M/428  
 
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  11.13.   The representative of Japan  said that his country  supported the proposal  contained in 
document WT/DSB/W/609/Rev.10 . Japan also support ed and, was actively contributing to, the 
informal process on Appellate Body matters  under the auspices of the General Council, which was 
well underway. The active engagement of WTO Members was essential to the prompt and successful 
conclusion of the process  which would and should lead to the normalization of the situation in the 
Appellate  Body by filling its vacancies . 
11.14.   The representative of the Republic of Korea  said that his country  also share d a deep concern 
and a sense of urgency regarding filling of the vacancies in the Appellate Body.  In this regard, Korea 
support ed the statement made by Mexico based on the joint proposal contained in document 
WT/DSB/W/609/Rev.10 . Korea was a co-sponsor  of that proposal. Korea  also appreciate d the 
Chairman of the DSB and the Chair of the General Council 's efforts in facilitating and organizing the 
informal process on Appellate Body matters  and look ed forward to making good progress as soon 
as possible.   
11.15.   The representative of Switzerland  said that his country  support ed the statement made by 
Mexico and wished to refer to its statements made at  previous DSB meetings  on this matter . 
Switzerland regret ted that the DSB continue d to be unable to launch the AB selection processes 
towards filling the Appellate Body vacancies. Switzerland  called on all Members to engage 
constructively, with a vi ew to finding concrete solutions, in the discussions that were taking place in 
the context of the informal process on Appellate Body matters  under the auspices of the General 
Council. Switzerland look ed forward to continuing and deepening discussion s in that process.  
11.16.   The representative of Brazil  said that h er country wished to  refer to its statements made at  
previous DSB meetings regarding the urgency of launching the AB selection process es. As Members 
were well aware, if nothing was done, in Decembe r 2019, the Appellate Body w ould no longer be 
able to hear appeals and the dispute settlement system as a whole w ould be compromised. Brazil 
believe d that Members'  main goal should be to trace a clear path to ward filling the vacancies. To 
this end, Brazil welcome d the progress achieved in the informal process on Appellate Body matters  
under the General Council. Brazil had  demonstrated that it was  ready to engage in pragmatic 
discussions to resolve these issues. Time was of the essence. Brazil  urged the Membership to fulfil 
its obligation of filling the Appellate Body vacancies .  
11.17.   The representative of Uruguay  said that his country  support ed the statements made by 
Mexico on behalf of the 75 co -sponsors of th e proposal  contained in document 
WT/DSB/W/609/Rev. 10, as well as Cuba's statement made on behalf of members of the GRULAC 
that were also WTO Members. Uruguay highlight ed that WTO Members were engaged in a 
constructive and positive discussion s under the General Council.  These discussion s, in light of the 
proposals made by various Members, c ould only improve the functioning of the Appellate Body . As 
a result, it would be appropriate to launch the AB selection processes in order to ensure that this 
Organization c ould continue to count on a dispute settlement  mechanism .  
11.18.   The representative of Norway  said that his country  wished  to reiterate its statements made 
at previous DSB meetings o n the same Agenda item . Norway,  once again , underline d the serious 
concerns related to the current impasse in the dispute settlement system. Norway  deeply regret ted 
that the United States still c ould not join consensus on the proposal to launch the AB selection 
process es. Norway  encourage d all Members to acti vely seek solutions and engage in the ongoing 
and important discussions on the Appellate Body issues, which – quite clearly – were still  being 
addressed  and were not being left  unaddressed.  
11.19.   The representative of Singapore  said that his delegation  wished t o refer to its statements 
made at previous DSB meetings and to reiterate its serious systemic concerns with the failure to 
launch the AB selection process es. In more than  seven  months, the Appellate Body w ould be down 
to just one member if vacancies remain ed unfilled. Given the strain that the Appellate Body was 
facing, Singapore  called on Members to bear this in mind when considering the filing of appeals. 
Systemic issues which had been raised c ould be discussed in a separate process. In this regard, 
even as Members continue d to engage in the informal process on Appellate Body matters  led by the 
DSB Chairman as Facilitator, Singapore wishe d to emphasi ze that the AB selection process es should 
be allowed to proceed unconditionally. Singapore st ood ready to engage constructively and 
collaboratively to help resolve this impasse.  WT/DSB/M/428  
 
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  11.20.   The representative of Jamaica  said that her country wished to r efer to its statements made 
at previous DSB meetings on this matter . Jamaica  firmly believed  that the dispute settlement 
mechanism play ed a vital and indispensable  role within the WTO and the multilateral trading system. 
Jamaica , therefore , joined other Members in expressing concern and underscoring the need for 
Members to accord priority to the prompt filling of vacancies within the Appellate  Body. While 
Jamaica welcome d the ongoing efforts being undertaken under the Chairman's  able leadership to 
resolve the existing impasse , Jamaica  however wish ed to reiterate the need to pursue  a two -track 
process in resolving this impasse. The first track would place greater focus on resolving the impasse 
over the appoint ment of Appellate  Body members in order to avert paralysis  to the Appellate Body 
come December  2019, while the second track would pursue a mor e general reform package for the 
dispute settlement mechanism. Importantly a s well , this approach would not prevent the two 
processes from being pursued concurrently. Jamaica wishe d to reiterate its strong commitment to 
continue its constructive engagement  and collaboration on these initiatives which were geared 
toward the strengthening of the WTO and the execution of its mandate.  
11.21.   The representative of Mexico  said that her country  regret ted that, despite the multiple 
attempts by different delegations, Members  continue d to have only three out of the seven members 
in the Appellate  Body. Mexico ha d serious  concerns, which were becoming increasingly pressing, 
and, once again , called on Members to address, in a responsible manner, the current situation in 
which Members  had been unable, for nearly two years, to launch the AB selection process es. In 
failing to do so, Members we re clearly disregarding the obligation, established in Article  17.2 of the 
DSU, to fill such vacancies as soon as they ar ose. This situa tion was unacceptable and w ould have 
a serious systemic impact on the Organization, a first example of which Members  had seen under  
previous Agenda items at the present meeting . The Appellate  Body ha d recently found itself faced 
with a growing accumulation  of pending appeals, and this w ould continue to escalate, as it was only 
the same three remaining members that consider ed all the appeals submitted since October 2018. 
Consequently, this undermine d the principle of collegiality in the Appellate  Body. There  were 
currently over ten proposals submitted by 19  Members  before the General Council , which s ought  to 
address the concerns that ha d been raised .  This alone should be sufficient reason for th e AB 
selection  process es to be initiated by Members at the present meeting  in compliance with the DSU, 
so that the vacancies c ould be filled as quickly as possible. In this regard, Mexico  strongly urge d all 
Members, including the one that has raised concerns, to take part actively and constructively in 
this proces s.  
11.22.   The representative of Mexico , speaking  on behalf of the 75 co-sponsors  of the proposal  
contained in document WT/DSB/W/609/Rev.10 , express ed regret that for the twent y-second 
occasion, Members  still had not been able to start the AB selection processes and ha d thus 
continuously failed to fulfill their duty as Members of this Organization. The fact that a Member m ight 
have concerns about certain aspects of t he functioning of the Appellate  Body c ould not serve as 
pretext to impair and disrupt the work of this body . There was no legal justification for the current 
blocking of the AB selection process es, which resulted in nullification and i mpairment for many 
Members . As Article 17.2 of the DSU clearly state d: "[v]acancies shall be filled as they arise ". No 
discussion should prevent the Appellate Body from continuing to operate fully and Members had to  
comply with their obligation under the DSU to fill the AB vacancies. By failing to act at the present 
meeting , Members  would maintain the current situation , which was seriously affecting the work of 
the Appellate Body against the best interest of all WTO Members .  
11.23.   The representative of China  said that his country  welcome d the fact that  Morocco and the 
Central African Republic  joined the group of co-sponsors  of the proposal  contained in document 
WT/DSB/W/609/Rev.10 . China w ished  to echo the statement made by Mexico on behalf of 
75 Members, and deeply regret ted that the collective efforts by these Members had been , once 
again , frustrated by a particular Member 's illegitimate blockage which simply  exacerbate d the 
current Appellate Body crisis. China  recall ed that Members ha d a shared responsibility to promptly 
fill the vacancies of the Appellate Body as required by Article 17.2 of the DSU. The clear text of that 
provision indicate d that such responsibility had to  be fulfilled without any precondition. Nevertheless, 
with a view to break ing the deadlock  in AB selection processes , Members ha d made and were 
continu ing to make earnest efforts to address concerns raised by a particular Member. Various 
concrete proposals, including the joint proposals co -sponsored by the EU, China and other Members, 
had been tabled and discussed in informal meetings under the auspices of the General Council. 
Regrettably, Members  had yet to see constructive engagement from the Member concerned. If all 
Members  support ed the rules -based multilateral trading system, it was time for Members to show 
their seriousness and sincerity by meaningfully participating in relevant discussions on Appellate  WT/DSB/M/428  
 
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  Body reform. If the blockage continue d, it w ould inevitably lead to the dismantlement of the 
Appellate Body which w ould cause severe damage to the effectiveness and credibility of the WTO 
dispute settlement system. To avoid unintended consequences, China called on all Members to 
constructively participate in informal meetings and strive to solve the deadlock  in the AB selection 
processes at the earliest date.  
11.24.   The representative of Philippines  said that his country  attached  great importance to the 
WTO dispute settlement system, including the Appellate Body, which play ed a crucial role in 
providing security and predictability to the rules -based multilateral trading system. To this end, the 
Philippines appreciate d the proposal on Appellate Body appointmen ts put forward by a large group 
of WTO Members  and contained in document  WT/DSB/W/609/Rev.10. Similarly, the Philippines t ook 
good note of other constructive steps being taken by Members, including the most recent  paper 
circulated by Japan and Australia and contained in document WT/GC/W/768 , as well as the 
discussions held in the parallel informal process on Appellate Body matters under the auspices of 
the General Council, which were aimed at a comprehensive resolution o f the Appellate  Body's current 
situat ion. The Philippines st ood ready to collaborate and engage in all potential approaches in order 
to address all areas of concern, with the aim of contributing to the strengthening and improvement 
of the WTO rules -based system.  
11.25.   The representative of Colombia  said that his country  support ed the statements made by 
Mexico and Cuba. Colombia  recall ed that, two years ago, a group of six Latin American countries , 
including Colombia , had initiated this process, which was now supported by 75 Members. Colombia  
wished to reiterate that it was important that Members  continued to engage in constructive dialogue 
to move forward with the necessary agreements so as to resolve the impasse, to the extent possible, 
before December  2019.  
11.26.   The representative of Guatemala  said that  his country  share d the concerns of other Members 
in relation to the US opposition to launching the AB selection processes. At the present meeting, 
once again, the United States had allege d that its concerns remain ed unaddressed. Guatemala also 
noted that the United States ha d offered, once again, to participate constructively in the search for 
solutions. However, in light of the important number of proposals made and of the meetings that 
had taken  place under the guidance of the Chairman with a view to addressing these concerns, to 
date Guatemala ha d not heard from the United States its view as to whether any of these proposals 
addresse d its concerns or how these concerns might  be addressed. Guatemala remain ed available 
to contribute positively to the search for solutions to the current crisis and hope d that the 
United  States c ould participate more actively in the discussions that were being carried out to 
this end. 
11.27.   The Chairman  thank ed all delegations for their statements. He said that, a s in the past , the 
DSB w ould take note of the statements expressing the respective positions, which w ould be duly 
reflected in the minutes of this meeting. As a number of delegations  had stated , this matter require d 
a political engagement on the part of all WTO Members . As a number of  delegations  had referenced , 
under the auspices of the General Council, he had agreed to assist the Chair of the General Council, 
in his personal capacity as Facilitator, in an  informal process of focused discussions on matters 
related to the functioning of the Appellate Body. These discussions were on -going and it 
was his intention to make a progress report on this matter to the General Council at its meeting on 
7 May 2019.  
11.28.   The DSB took note of the statements .  
12  COMMUNICATION BY JAP AN: "TOWARDS THE PROPER F UNCTIONING OF THE DI SPUTE 
SETTLEMENT MECHANISM "(JOB/DSB/3) .  
12.1.   The representative of Japan , speaking under "Other Business", said that  Japan wished to refer 
to its communication contained in document JOB/DSB/3, which had been  circulated on 18 April 2019. 
As stated in that communication, the effective functioning of the WTO dispute settlement system 
was fundamental to the rules -based multilateral trading system under this Organization. He recall ed 
that the aim of the system was to secure a positive solution to a dispute .49 Japan was particularly 
concerned that, under the current dispute settlement mechanism, should the Appellate Body fail to 
make findings n ecessary to assist the DSB in making recommendations or in giving rulings provided 
                                                
49 Article 3.7 of the DSU.  WT/DSB/M/428  
 
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  for in the covered agreements50 in a particular dispute, the dispute would be left unresolved and, as 
a result, the dispute settlement system would fail to fulfil its functio n to secure a positive solution to 
that dispute. Such consequence was wholly unsatisfactory and unacceptable to any WTO Member.  
Japan emphasize d that  "[r]ecommendations and rulings made by the DSB shall be aimed at 
achieving a satisfactory settlement of” t he dispute ".51 Japan urge d Members to further  discuss this 
matter in the DS B. 
12.2.   The DSB took note  of the statement.  
__________  
                                                
50 Article 11 of the DSU.  
51 Article 3.4 of the DSU.