RESTRICTED  
  
WT/DSB/M/442  
13 October  2020 
(20-7053) Page: 1/52 
Dispute Settlement Body  
29 June 2020   
 
  
MINUTES OF MEETING  
HELD IN THE CENTRE WILLIAM RAPPARD  
ON 29  JUNE 2020 
Chairman : H.E.  Mr. Dacio Castillo  (Honduras ) 
Prior to the adoption of the Agenda , the Chairman  welcomed those delegations participating 
physically at the meeting as well as those delegations who were listening -in remotely. He recalled 
that, exceptionally for this meeting, he would not be offering the floor to delegations participating 
remotely. The se arrangements would be reviewed as delegations gained more experience with this 
format. At this point, the Chairman also wished to thank all Members for their trust in electing him 
as the new Chairman of the DSB. He said that he would count on Members' s upport and cooperation 
during his mandate.  
Table of Contents  
1   SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY 
THE DSB  ................................ ................................ ................................ ...........................  3 
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  ................................ ................................ ................................ .....................  4 
C. European  Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European Union ................................ ................................ ....... 4 
D. United  States – Anti-dumping and countervailing measures on large residential 
washers from Korea: Status report by the United States  ................................ ..........................  6 
E. United  States – Certain methodologies and their application to anti -dumping 
proceedings involving China: Status report by the United States  ................................ ..............  7 
F. Indonesia – Importation of horticultural products, animals and animal products:  
Status report by Indonesia  ................................ ................................ ................................ ... 8 
G. China – Domestic support for agricultural producers: Status report by China  ..........................  9 
2   UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 
2000: IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB  ..............  10 
A. Statement by the European Union  ................................ ................................ ...................  10 
3   EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES 
AFFECTING TRADE IN LARGE CIVIL AIRCRAFT: IMPLEMENTATION OF THE 
RECOMMENDATIONS ADOPTED BY THE DSB  ................................ ................................ .. 11 
A. Statement by the United States  ................................ ................................ ......................  11 WT/DSB/M/442  
- 2 - 
  4   INDIA – TARIFF TREATMENT ON CERTAIN GOODS IN THE INFORMATION 
AND COMMUNICATIONS TECHNOLOGY SECTOR  ................................ .............................  12 
A. Request for the establishment of a panel by the European Union ................................ .........  12 
5   COLOMBIA – ANTI -DUMPING DUTIES ON FROZEN FRIES FROM BELGIUM, 
GERMANY AND THE NETHERLANDS  ................................ ................................ ................  14 
A. Request for the establishment of a panel by the European Union ................................ .........  14 
6   INDIA – TARIFF TREATMENT ON CERTAIN GOODS  ................................ ....................  14 
A. Request for the establishment of a panel by Japan  ................................ ............................  14 
7   INDIA – TARIFF TREATMENT ON CERTAIN GOODS IN THE INFORMATION 
AND COMMUNICATIONS TECHNOLOGY SECTOR  ................................ .............................  16 
A. Request for the establishment of a panel by The Separate Customs Territory Of 
Taiwan, Penghu, Kinmen and Matsu  ................................ ................................ ....................  16 
8   JAPAN – MEASURES RELATED TO THE EXPORTATION OF PRODUCTS AND 
TECHNOLOGY TO KOREA  ................................ ................................ ................................  17 
A. Request for establishment of a panel by the Republic of Korea  ................................ ............  17 
9   EUROPEAN UNION – CERTAIN MEASURES CONCERNING PALM OIL AND OIL 
PALM CROP -BASED BIOFUELS  ................................ ................................ ........................  20 
A. Request for the establishment of a panel by Indonesia  ................................ .......................  20 
10   AUSTRALIA – CERTAIN MEASURES CONCERNING TRADEMARKS, 
GEOGRAPHICAL INDICATIONS AND OTHER PLAIN PACKAGING REQUIREMENTS 
APPLICABLE TO TOBACCO PRODUCTS AND PACK AGING  ................................ ................  21 
A. Report of the Appellate Body and Report of the Panel  ................................ .......................  21 
B. Report of the Appellate Body and Report of the Panel  ................................ .......................  21 
11   THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE 
PHILIPPINES  ................................ ................................ ................................ .................  32 
A. Statement by the Chairman on consultations with Thailand and the Philippines with 
regard to the Recourse to Article 22.2 of the DSU (WT/DS371/32)  ................................ ..........  32 
B. Statement by the Philippines  ................................ ................................ ..........................  32 
C. Statement by Thailand  ................................ ................................ ................................ ... 32 
12   UNITED STATES – COUNTERVAILING MEASURES ON SUPERCALENDERED 
PAPER FROM CANADA  ................................ ................................ ................................ .... 34 
A. Recourse to Article 22.2 of the DSU by Canada  ................................ ................................ . 34 
13   MULTI -PARTY INTERIM APPEAL ARBITRATION ARRANGEMENT PURSUANT 
TO ARTICLE  25 OF THE DSU  (JOB/DSB/1/ADD.12)  ................................ .......................  38 
A. Statements by the MPIA Participating Parties  ................................ ................................ .... 38 
14   SYSTEMIC ISSUE OF THE LACK OF REMEDY TO THE BREACH OF 
CONFIDENTIALITY IN WTO DISPUTE SETTLEMENT PROCEEDINGS  ................................  43 
A. Communication from the Kingdom of Saudi Arabia  ................................ ............................  43 
15   APPELLATE BODY APPOINTMENTS: PROPOSAL BY AFGHANISTAN; ANGOLA; 
ARGENTINA; AUSTRALIA; BANGLADESH; BENIN; PLURINATIONAL STATE OF 
BOLIVIA; BOTSWANA; BRAZIL; BURKINA FASO; BURUNDI; CABO VERDE; 
CAMEROON; CANADA; CENTRAL AFRICAN REPUBLIC; CHAD; CHILE; CHINA;  
COLOMBIA; CONGO; COSTA RICA; CÔTE D'IVOIRE; CUBA; DEMOCRATIC 
REPUBLIC OF CONGO; DJIBOUTI; DOMINICAN REPUBLIC; ECUADOR; EGYPT; EL 
SALVADOR; ESWATINI; THE EUROPEAN UNION; GABON; THE GAMBIA; GHANA; 
GUATEMALA; GUINEA; GUINEA -BISSAU; HONDURAS; HONG KONG, CHINA ; 
ICELAND; INDIA; INDONESIA; ISRAEL; KAZAKHSTAN; KENYA; REPUBLIC OF 
KOREA; LESOTHO; LIECHTENSTEIN; MADAGASCAR; MALAWI; MALAYSIA; WT/DSB/M/442  
- 3 - 
  MALDIVES; MALI; MAURITANIA; MAURITIUS; MEXICO; REPUBLIC OF MOLDOVA; 
MOROCCO; MOZAMBIQUE; NAMIBIA; NEPAL; NEW ZEALAND; NICARAGUA ; 
NIGER; NIGERIA; NORTH MACEDONIA; NORWAY; PAKISTAN; PANAMA; 
PARAGUAY; PERU; QATAR; RUSSIAN FEDERATION; RWANDA; SENEGAL; 
SEYCHELLES; SIERRA LEONE; SINGAPORE; SOUTH  AFRICA; SWITZERLAND; THE 
SEPARATE CUSTOMS TERRITORY OF TAIWAN, PENGHU, KINMEN AND MATSU; 
TANZANIA; THAILAND; TOGO; TUNISIA; TURKEY; UGANDA; UKRAINE; UNITED 
KINGDOM; URUGUAY; THE BOLIVARIAN REPUBLIC OF VENEZUELA; VIET NAM; 
ZAMBIA AND ZIMBABWE (WT/DSB/W/609/REV.18)  ................................ ....................  47 
 
1  SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB  
A. United States – Anti-dumping measures on certain hot -rolled steel products from Japan : Status 
report by the United S tates (WT/DS184/15/Add.205)  
 
B. United States – Section 110(5) of the U S Copyright Act : Status report by the United States 
(WT/DS160/24/A dd.180)  
 
C. European Communities – Measures affecting the approval and marketing of biotech products : 
Status report by the European Union (WT/DS291/37/A dd.143)  
 
D. United States – Anti-dumping and countervailing measures on large residential washers from 
Korea : Status report by the United States (WT/DS464/17/A dd.27) 
 
E. United States – Certain methodologies and t heir application to anti -dumping proceedings involving 
China : Status report by the United States (WT/DS471/17/A dd.19) 
 
F. Indonesia – Importation of horticultural products, animals and animal products : Status report by 
Indonesia (WT/DS477/21/A dd.14 – WT/DS 478/22/A dd.14) 
 
G. China – Domestic support for agricultural producers : Status report by China 
(WT/DS511/15/A dd.2) 
 
1.1.  The Chairman  noted that there were seven  sub-items under this Agenda item concerning status 
reports submitted by delegations pursuant to Article 21.6 of the DSU . He recall ed that  Article 21.6 
require d that: "[u]nless the DSB decides otherwise, the issue of implementation of the 
recommendations or rulings shall be placed on the Agenda of the DSB meeting after six months 
following  the date of 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 proposed to turn to the first status report under this Agenda ite m. 
A. United  States – Anti-Dumping measures on certain hot -rolled steel products from 
Japan : Status report by the United States (WT/DS184/15/Add.20 5) 
1.2.  The Chairman  drew attention to document WT/DS184/15/Add.20 5, 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 the United States had provided a status report 
in this dispute on 18  June 2020, in accordance with Article 21.6 of the DSU. The United States had 
addressed the DSB's recommendations and rulings with respect to the calculation of anti -dumping 
margins in the hot -rolled steel anti -dumping duty investigation at issue. With respect to the 
recommendations and ruling s of the DSB that had yet to be addressed, the US Administration would 
work with the US Congress with respect to appropriate statutory meas ures that would resolve this 
matter.  WT/DSB/M/442  
- 4 - 
  1.4.  The representative of Japan  said that his country  wished to thank the United States for its most 
recent  status report and  its statement made at the present meeting . Japan, once again , called on 
the United States to fully implement the DSB 's recommendations and rulings so as to resolve this 
matter.  
1.5.  The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
B. United  States – Section 110(5) of the US Copyright Act: Status report by the 
United  States (WT/DS160/24/Add.1 80) 
1.6.  The Chairman  drew attention to document WT/DS160/24/Add.1 80, which contain ed the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act.  
1.7.  The representative of the United States  said that t he United States had provided a status report 
in this dispute on 18 June 2020, in accordance with Article 21.6 of the DSU . The US Administration 
would continue to confer with the European Union, and to work closely with the US Congress, in 
order to reach a mutually satisfactory resolution of th is matter.  
1.8.  The representative of the European Union  wished to  thank the United States for its status 
report and its statement made at the present meeting . His delegation wished to  refer to its 
statements  made at previous DSB meetings  under this Agenda item . The EU wished to resolve this 
case as soon as possible . 
1.9.  The representative of China  said that his country noted that the United States ha d provided 
181 status reports in this dispute . However , those re ports were not different from one another and 
none of them indicated any progress on implementation . China expressed regret that nearly  
two decades after the DSB had adopted the Panel Report, this dispute remain ed to be unresolved . 
In China's view, t he United States continue d to fail to accord the minimum standard of protection 
required by the TRIPS Agreement 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  stated 
very clearly that : "prompt compliance with recommendations or rulings of the DSB is essential in 
order to ensure effective resolution of disputes to the benefit of all Members ". China urged the 
United  States to adopt concrete implementation actio ns in this dispute so as to faithfully hono ur its 
commitments under the DSU and the TRIPS Agreement without further delay.  
1.10.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
C. European  Communities – Measures affecting the approval and marketing of biotech 
products : Status report by the European Union (WT/DS291/37/Add.14 3) 
1.11.   The Chairman  drew attention to document WT/DS291/3 7/Add.14 3, 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.  
1.12.   The representative of the European Union  said that his delegation  continue d to progress with 
the authori zations where the European Food Safety Authority ha d finalized its scientific opinion and 
had concluded that there were no safety concerns . The EU ha d a solid record on the authori zation 
of GMO requests : in 2019 , 18 decisions had been  adopted to authori ze 65 new GMOs for feed and 
food, six GMOs had been  renewed and one GM cut flower had been  authori zed. As repeatedly 
explained by the EU and confirmed by the US delegation during the EU -US biannual consultations 
held on 1 2 June 2019, efforts to reduce delays in authori zation procedures were constantly 
maintained at a high level at all stages of the authori zation procedure . At previous  DSB meeti ngs, 
the United States had referred to what was known as the EU "opt-out Directive ". The EU wished  to 
reiterate that the DSB 's recommendations and rulings d id not cover that "opt-out Directive ". The EU 
acted in line with its WTO obligations . Finally, the EU recall ed that the EU approval system was not 
covered by the DSB's recommendations and rulings  in this dispute . WT/DSB/M/442  
- 5 - 
  1.13.   The representative of the United States  thanked the European Union (EU) for its status report 
and its statement made at the present meeting. Th e United States continued to see persistent delays 
that affected dozens of applications that had been awaiting approval for an extended period. The EU 
had previously suggested that the fault was with the applicants. The United States disagreed; the 
US conc erns related to delays at every stage of the approval process resulting from the actions or 
inactions of the EU and its member States. For example, the Standing Committee on Plants, Animals, 
Food and Feed (PAFF) section responsible for biotechnology had no t held a meeting for biotech 
products this year. This was not a COVID -19 issue – the Commission continued to cancel scheduled 
biotech standing committee meetings, most recently the meeting scheduled for June  2020, even 
though meetings of six other standing  committee sections had been held, such as the June  2020 
meetings regarding pesticides and food safety. Currently, 13 applications were pending risk 
management decisions in the standing committee on biotech and two awaited final approval by the 
European Co mmission. Three of these applications had been going through the EU approval system 
for over 10 years. This absence of meetings further delayed new product approvals. The EU also had 
suggested that the United States "appears" to acknowledge that there was no ban on genetically 
engineered products in the EU. The EU was incorrect. It was, and had consistently been, the position 
of the United States that the EU had failed to lift all of the WTO -inconsistent member -State bans 
covered by the DSB recommendation. The DSB had adopted findings that, even where the EU had 
approved a particular product, in many instances EU member States had banned those products for 
certain uses without a scientific basis. This included not only the two member States subject to panel 
findings – Austria and Italy. There were seven additional member States that previously maintained 
bans on cultivation and had since opted out of cultivation under the EU's legislation: Bulgaria, France, 
Germany, Greece, Hungary, Luxembourg, and Poland. Th ere were also eight member States that 
had not previously banned cultivation of MON -810 but had since opted out of cultivation under the 
EU's legislation: Croatia, Cyprus, Denmark, Latvia, Lithuania, Malta, the Netherlands, and Slovenia. 
Further, Austria a nd Italy appeared to maintain bans on other products subject to specific panel 
findings. The EU's only response, which it continued to repeat, was that the member States did not 
restrict marketing or free movement of MON -810 in the EU. As the United States  had noted at the 
prior DSB meeting, this answer did nothing to address US concerns. The restrictions adopted by EU 
member States restricted international trade in these products and had no scientific justification. 
Indeed, this was why the DSB had adopted  findings that such restrictions on MON -810 were in 
breach of the EU's WTO commitments. The United States urged the EU to ensure that all of its 
measures affecting the approval of biotech products, including measures adopted by individual EU 
member States,  were based on scientific principles, and that decisions were taken without undue 
delay.  
1.14.   The representative the European Union  said that t he WTO Agreements d id not require full 
international harmoni zation and le ft some regulatory space or autonomy to individual WTO Members . 
The EU had different regulatory approaches to non -GMOs and GMOs but, in all cases, such 
regulations d id not discriminate between imported and domestic like products . No EU member State 
had impos ed any "ban". Under the terms of Directive 2001/18/EC , an EU member State c ould adopt 
measures restricting or prohibiting cultivation only when such measures were in line with EU law 
and were reasoned, proportional, non -discriminatory and based on compelling grounds . The free 
movement of seeds was embedded in Article 22 of Directive 2001/18/EC : "member States may not 
prohibit, restrict or impede the placing on the market of GMOs, as or in products, which comply with 
the requirements of this Directiv e". The EU  also note d that according to the provisions of the opt -out 
Directive (Article 26b, point 8) the measures adopted under the Directive "shall not affect the free 
circulation of authorised GMOs " in the EU . Currently , the EU Common Catalogue of vari eties of 
agricultural species include d 150 varieties of maize MON -810, which were allowed to be marketed 
in the EU . As of the present meeting,  the European Commission ha d never received any complaint 
from seed operators or other stakeholders concerning the  restriction of marketing of MON -810 seeds 
in the EU . This confirm ed the smooth functioning of the internal market of MON -810 seeds . The EU  
invite d the United States to provide any evidence it might  have at its disposal that would substantiat e 
the disruption of the free movement of MON -810 seeds in the EU.  
1.15.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  WT/DSB/M/442  
- 6 - 
  D. United  States – Anti-dumping and countervailing measures on large residential 
washers from Korea : Status report by the United States (WT/DS464/17/Add.2 7) 
1.16.   The Chairman  drew attention to document WT/DS464/17/Add.2 7, which contain ed the status 
report by the United States on progress in the implementation of the DSB's recomm endations in the 
case concerning anti -dumping and countervailing measures on large residential washers from Korea.  
1.17.   The representative of the United States  said that t he United States had provided a status 
report in this dispute on 18 June 2020, in accordance with Article 21.6 of the DSU . On 6 May 2019, 
the US Department of Commerce had published a notice in the US Federal Register announcing the 
revocation of the anti -dumping and counterva iling duty orders on imports of large residential 
washers from Korea (84 Fed . Reg. 19,763 ( 6 May 2019)) . With this action, the United States ha d 
completed implementation of the DSB 's recommendations concerning those anti -dumping and 
countervailing duty ord ers. The United States continue d to consult with interested parties on options 
to address the recommendations of the DSB relating to other measures challenged in this dispute.  
1.18.   The representative of Korea  said that his country  thank ed the U nited States for its status 
report . Once again, Korea urge d the United States  to take prompt and appropriate steps to 
implement the DSB 's recommendation s for the "as such"  measure at issue in this dispute.  
1.19.   The representative of Canada  said that t he United States conti nued to fail to comply with the 
DSB's ruling, arising out of the Appellate Body report in this dispute , that the "differential pricing 
methodology " (DPM) was "as such " WTO-inconsistent . The United States had  also ignored the DSB 's 
recommendation that the U nited States bring itself into compliance with its obligations . Instead, the 
United States continue d to apply the "as such " inconsistent differential pricing methodology in 
investigations with respect to foreign companies and conti nued to collect cash deposits from foreign 
exporters based on its inconsistent methodology . The reasonable period of time to implement the 
recommendations relating to the "as such " WTO-inconsistency of the DPM had expired more than 
two years ago . However, in its most recent  status report, the U nited States stated that it continue d 
to consult with interested parties . Moreover, the continued use by the United States  of the DPM ha d 
forced Members to resort to several dispute settlement proceedings conc erning this measure . This 
was an inefficient and unnecessary use of WTO dispute settlement resources . In particular, Canada 
had been  forced to challenge the application of the "as such " WTO-inconsistent DPM to Canadian 
companies in the "US – Differential P ricing Methodology" dispute (DS534) . The panel had found that 
the DPM violated US  obligations under the Anti -dumping Agreement . However, it had also made 
certain findings that dramatically departed from prior Appellate Body findings relating to the DPM 
and zeroing . Canada ha d appealed these problematic panel findings,  but that appeal c ould not be 
heard as the United States continue d to block the Appellate Body appointments . Canada remain ed 
deeply concerned with the continued US failure to comply with the DSB 's recommendations and 
rulings in the "US – Washing Machines" dispute (DS464) . This failure seriously undermine d the 
security and stability of the multilateral trading system.  
1.20.   The repres entative of the United States  said that the premise of Canada's statement was 
flawed and indicative of what had led the DSB to the place it currently was. A panel did not depart 
from or follow the findings in prior reports. Were a panel to do so, that pane l would have failed in 
its duty under the DSU. The role of a panel was to assist the DSB in making a recommendation to 
bring a WTO -inconsistent measure into conformity with the WTO agreements.1 A panel made an 
objective assessment of the conformity of a m easure with the covered agreements2 by interpreting 
the text of the covered agreements using customary rules of interpretation of public international 
law.3 Nothing in the DSU or customary rules of interpretation assigned precedential value to prior 
 
1 Article 7.1 of the DSU (setting out a panel's terms of reference: "[t]o examine, in the light of the 
relevant provisions in (name of the covered agreement(s) cited by the parties to the dispute), the matter 
referred to the DSB by (name of party) in document ... and to make such findings as will assist the DSB in 
making the recommendations or in giving the rulings provided for in that/those agreement(s)").  
2 Article 11 of the DSU ("Function of Panels") ("[t]he function of panels is to assist the DSB in 
discharging its responsibilities under this Understanding and the covered agreements. Accordingly, a panel 
should m ake an objective assessment of the matter before it, including an objective assessment of the facts of 
the case and the applicability of and conformity with the relevant covered agreements, and make such other 
findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the 
covered agreements").  
3 Article 3.2 of the DSU ("[t]he Members recognize that it [the WTO dispute settlement system] serves 
to preserve the rights and obligations of Members under the covered agr eements, and to clarify the existing WT/DSB/M/442  
- 7 - 
  adopted reports, including Appellate Body reports. The United States had explained this issue at 
length in the DSB4, and in the USTR  Report on the Appellate Body .5 Many WTO Members seemingly 
had accepted that a prior Appellate Body report was not "precedent", and that a panel did not follow 
or depart from such a report – but Canada had revealed at the present meeting that it did not share 
the conclusions of other Me mbers and the then -DSB Chair's "Walker Principles". If there was a 
textual basis in the DSU for Canada's position, the United States would like to hear it. Canada had 
lost its dispute before the panel because Canada had failed to persuade the panel of the correctness 
of its proposed interpretations of the Anti -Dumping Agreement. And the United States had won 
before the panel because the United States had succeeded in persuading the panel that the 
interpretations proposed by the United States were correct. T he panel of anti -dumping experts had 
rejected Canada's claim that zeroing was prohibited under the second sentence of Article 2.4.2 of 
the Anti -Dumping Agreement. But that was not the first time that a panel of anti -dumping experts 
had rejected a claim tha t the Anti -Dumping Agreement prohibited zeroing. In fact, it was the fifth 
time that a party had argued zeroing was prohibited, and a WTO panel had rejected  that claim. The 
consistent view of the United States for nearly two decades had been repeatedly vin dicated: nothing 
in the WTO agreements prohibited the use of zeroing. The United States asked at what point would 
Canada and other parties accept that their arguments were simply not persuasive to anti -dumping 
experts.  
1.21.   The representative of Canada  said tha t his country  disagree d with the position of the 
United  States with respect to the "US – Differential Pricing Methodology" dispute (DS534) . Canada  
had sought recourse to appeal as was its right under Article 17 of the DSU . Canada  hoped that it 
would  be able to have the Appellate Body hear this case  so that DSB recommendations c ould be 
adopted . 
1.22.   The DSB took note of the statements and agree d 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.1 9) 
1.23.   The Chairman  drew attention to document WT/DS471/17/Add.1 9, which contain ed the status 
report by the United States on progress in the implement ation of the DSB's recommendations in the 
case concerning certain methodologies and their application to anti -dumping proceedings involving 
China.  
1.24.   The representative of the United States  said that t he United States had provided a status 
report in this dispute on 18 June 2020, 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 
recommendations of the DSB.  
1.25.   The representative of China  said that o n 22 May 2017, the DSB had adopted the Appellate 
Body Report and the modified Panel Report in this dispute . Thus DSB had found that certain 
measures taken by the United States were inconsistent with requirements of the Anti-Dumping 
Agreement, which included : (i) the use of zeroing under the W -T methodology was as such 
incompatible with Article 2.4.2 ; (ii) the so -called single rate presumption as such violate d 
Article s 6.10 and 9.2 ; and (iii) the adverse facts available was a norm of general and prospective 
application which could be subject to future as such challenges . On 19 June 2017, the United States 
had stated its intention to implement the DSB 's recommendations and rulings in this dispute . The 
arbitration pursuant t o Article 21.3(c) of the DSU had decided that the reasonable period of time 
(RPT) would  be 15 months, expiring on 2 2 August  2018. However, the persistent non -compliance of 
the United States left China no choice other than  to resort to arbitration under Article 22.6 of the 
DSU. On 1 November  2019, the arbitrator had determined  that the level of nullification or 
impairment incurred by China was US D 3.579  billion , the third largest retaliation amount i n the WTO 
history . Nearly two years af ter the expiry  of the RPT , the United States continue d to fail to indicate 
 
provisions of those agreements in accordance with customary rules of interpretation of public international 
law").  
4 DSB, Minutes of the Meeting Held on 18 December 2018, WT/DSB/M/423, paras. 4.2 -4.25. 
5 United States Trade Representative, Report on the Appellate Body of the World Trade Organization 
(February 2020), available at https://geneva.usmission.gov/wp -content/uploads/sites/290/AB -
Report_02.11.20.pdf . WT/DSB/M/442  
- 8 - 
  a single concrete implementation action  in its status report  other than  to "consult with interested 
parties on options to address the recommendations of the DSB ". As a result, China 's legitimate 
interests provided for in the covered agreements and reaffirmed by the dispute settlement system 
continue d to be impaired . In fact, China 's experience in this dispute  was no exception . Over the past 
decade, implementation of the DSB recommendations and rulings by the United States, especially 
in its trade remedy disputes, ha d increasingly become a systemic problem for the entire  Membership . 
The US non-compliance severely undermine d the authority and effectiveness of the dispute 
settlement system . Other Members were forced to relitigate issues already settled by panels and the 
Appellate Body which  further strain ed the dispute settlement system . 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 urged the United States 
to faithfully hono ur its implementation obligation and take concrete actions to deliver full compliance 
in this dispute.  
1.26.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
F. Indonesia – Importation of horticultural products, animals and animal products : Status 
report by Indonesia (WT/DS477/21/Add.1 4 – WT/DS478/22/Add.1 4) 
1.27.   The Chairman  drew attention to document WT/DS477/21/Add.1 4 – WT/DS478/22/Add.1 4, 
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.  
1.28.   The representative of Indonesia  said that his country had provided a s tatus report pursuant 
to Article 21.6 of the DSU . As his country had stated at previous DSB meetings,  and in order to 
further facilitate import procedures, Indonesia ha d issued Ministry of Agriculture (MoA) Regulation 
No. 2/2020, which amend ed MoA Regulation No. 39/2019 concerning Recommendations for 
Importation of Horticultural Products . Indonesia was in the process of amending Ministry of Trade 
(MoT) Regulation  No. 44/2019 to be in line with the amended MoA Regulation . With respect to 
Measure  18, Indonesia wished to underline  that a draft amendment of the relevant laws ha d been 
transmitted by the Government to Parliament . The Government was waiting for a joint discussion 
with Parliament . Indonesia w ould continue to engage with New Zealand and the United States 
regarding matters related to the DSB's  recommendations and rulings in these disputes . 
1.29.   The representative of New Zealand  said that his country  acknowledge d the steps that ha d 
been taken by Indonesia towards compliance to date, and Indonesia 's commitment to comply fully 
with the DSB's recommendations and rulings in this dispute . Both of the compliance deadlines that 
had been  agreed between the parties ha d expired . As stated at previous DSB  meetings , New Zealand 
was seriously disappointed that full compliance ha d still not been reached in respect of a number of 
measures . New Zealand was very concerned that difficulties continue d to be experienced in obtaining 
import recommendatio ns and approvals . There was a significant delay in the issuing of import 
recommendations this year and to date, only a small fraction of the approvals applied for ha d been 
issued . If this issue was not resolved promptly, it could undermine the progress made towards 
compliance to date . New Zealand strongly encourage d Indonesia to take appropriate steps, swiftly, 
to achieve long -term, commercially meaningful, compliance with the DSB's recommendations and 
rulings in this dispute . 
1.30.   The representative of the United States  said that Indonesia continue d to fail to bring its 
measures into compliance with WTO rules . The United States and New Zealand agree d that 
significant concerns remain ed with the measures a t 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  underst ood that Indonesia claim ed to have "completed its enactment process " of 
certain regulations, but the United States was  still waiting to hear from Indon esia on whether and 
how such action would bring its measures into full compliance . It also remain ed unclear how 
Indonesia 's proposed legislative amendments would address Measure 18 and when Indonesia w ould 
complete its process . The United States look ed forward to receiving further detail from Indonesia WT/DSB/M/442  
- 9 - 
  regarding the changes to its regulations and laws, especially with respect to Ministry of Agriculture 
Regulation 46/2019 on Strategic Horticultural Commodities.  
1.31.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
G. China – Domestic support for agricultural producers : Status report by China 
(WT/DS511/15/Add. 2) 
1.32.   The Chairman  drew attention to document WT/DS511/15/Add. 2, which contain ed the status 
report by China on progress in the implementation of the DSB's recommendations in the case 
concerning domestic support for agricultural producers.  
1.33.   The representative of China  said that his country had  provided a status report in accordance 
with Article 21.6 of the DSU . At its meeting on 2 6 April 2019, the DSB had adopted the Panel Report 
in this dispute . On 16 May 2019, China had informed the DSB of its intention to implement the DSB's 
recommendations and rulings . Subsequently,  China had confi rmed its intention at the DSB meeting . 
On 10 June 2019, China and the United States had informed the DSB that the reasonable period of 
time for China to implement the DSB 's recommendations and rulings was set to expire on 
31 March  2020. On 1 April 2020, China and the United States had agreed to extend the reasonable 
period of time to 3 0 June 2020 to allow the United States additional time to evaluate China 's actions . 
The National Development and Reform Commission, the National Food and Strat egic Reserves 
Administration, the Ministry of Finance, the Ministry of Agriculture and Rural Affairs and the 
Agricultural Development Bank of China had jointly promulgated : the Notice on Announcing the 
Minimum Procurement Price for Wheat for 2020 (Fa Gai J ia Ge [2019] No. 1617) and the Notice on 
Improving the Wheat Minimum Procurement Price Policy (Guo Liang Liang [2019] No.  284) on 
12 October  2019; and the Notice on Announcing the Minimum Procurement Price for Rice for 2020 
(Fa Gai Jia Ge [2020] No.  290) a nd the Notice on Improving the Rice Minimum Procurement Price 
Policy (Guo Liang Liang [2020] No.  41) on 2 8 February  2020. The Minimum Procurement Price (MPP) 
policies maintained under the Notice on Improving the Wheat Minimum Procurement Price Policy 
and t he Notice on Improving the Rice Minimum Procurement Price Policy were fully consistent with 
the DSB's recommendations and rulings in this dispute  and with the WTO covered agreement s. As 
set forth in these two measures regarding the MPP policy for wheat and rice, starting from 2020, 
maximum procurement amounts under the MPP  had to be set  each year, and the amount of 
production that was eligible to receive the minimum procurement price  had to  be limited to the 
maximum procurement amount . The procurem ent progress was required to be monitored and 
published regularly, and in no event could  the actual procurement amount exceed the maximum 
procurement amount set for  each year . China was pleased to notify the DSB that through the 
above -mentioned measures, C hina had fully implemented the recommendations and rulings of the 
DSB in this dispute . 
1.34.   The representative of the United States  noted that the parties had informed the DSB, on 
1 April 2020, that the United States and China had agreed that the reasonable period of time for 
China to implement the DSB recommendations and rulings expired on 30  June 2020. The findings 
of the Panel in t his dispute related to China's provision of domestic support for its agricultural 
producers. China had committed not to provide support in excess of its commitment level of "nil" 
set forth in China's Schedule. Therefore, while the United States noted certa in changes in China's 
underlying legal instruments, the United States was interested in the manner in which those 
measures were applied in practice. China had informed the DSB, on 19  June 2020, that various 
agencies had jointly promulgated four notices, re spectively announcing the 2020 minimum 
procurement prices ("MPP") and the minimum procurement price policy for wheat and rice. The 
United States had requested additional information from China on how it would implement these 
measures – for example, how any  limitation on procurement would function. The United States 
looked forward to receiving further information from China. The United States noted that China's 
status report asserted that China had fully implemented the recommendations and rulings of the 
DSB in this matter. The United States was not in a position to agree with China's claim of compliance 
at this time. As set out in this statement, the United States looked forward to continuing engagement 
with China on the information requested and on China's administration of domestic support 
measures.  
1.35.   The DSB took note of the statements.  WT/DSB/M/442  
- 10 - 
  2  UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: 
IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB  
A. Statement by the European Union  
2.1.  The Chairman  said that t his item was on the Agenda of the present  meeting at the request of 
the European Union . He then  invite d the representative of the European Union to speak.  
2.2.  The representative of the European Union  said that o n 1 May 2020, the EU had adjusted the 
level of suspension to the nullification or impairment caused by the Continued Dumping and Subsidy 
Offset Act of 2000 (CDSOA)  to the EU . The adjustment maintain ed unchanged the list of products 
subject ed to retaliation while increasing the rat e of additional duty to which those products were 
subjected to 0 .012% in order to adjust to the level of retaliation . The letter informing of the 
adjustment, together with the Commission Delegated Regulation (EU) 2020/578 of 
21 February  2020, had been  notified to the DSB on 2 6 June 2020. The EU request ed, once again , 
that the United States stop transferring anti -dumping and countervailing duties to the US industry . 
Even if the amounts ha d considerably decreased, the latest CDSOA report from December  2018 
showed that amounts were still being disbursed  in practice . Every disbursement that still t ook place 
was clearly an act of non -compliance with the DSB's recommendations and rulings  in this dispute . 
As long as the U nited States did not fully stop transferring collected duties, th is item was rightly 
under the DSB's surveillance . Due to the long -standing nature of this breach, the EU would continue 
to insist on placing this item on the Agenda of DSB meetings, as a matter of principle,  and 
independently from the cost resulting from the application of such limited duties . The EU renew ed 
its call on the United States to abide by its clear obligation under Article 21.6 of the DSU to submit 
implementation reports in this dispute . The EU w ould continue to p lace this item  on the Agenda of 
DSB meetings as long as the U nited States had not fully implemented the DSB's recommendations 
and rulings  and as long as disbursements had not cease d completely.  
2.3.  The representative of Canada  said that his country wished to thank the European Union for 
placing this item on the Agenda of the present meeting . Canada agreed with the E U that the Byrd 
Amendment should remain subject to the surveillance of the DSB until the United States ceased to 
administer it . 
2.4.  The representative of the United States  said that as the United States had noted at previous 
DSB meetings, the Deficit Reduction Act – which included a provision repealing the Continued 
Dumping and Subsidy Offset Act of 2000 – had been enacted into law 14 y ears ago in February  2006. 
Accordingly, the United States had implemented 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 the distr ibution of duties collected on goods entered after 
1 October  2007, more than 12 years ago. Even aside from this, the United States questioned the 
trade rationale for inscribing this item on the DSB’s Agenda. On 26  June 2020, the EU had announced 
that it wo uld apply an additional duty of 0.012% on certain imports of the United States, which, 
remarkably, reflected an increase  in the additional duty of 0.001%. These minuscule tariffs vividly 
demonstrated what had been evident for years – it was not common sens e that was driving the EU's 
approach to this Agenda item. The EU suggested that it had requested the DSB's consideration of 
this item "as a matter of principle", but the EU's principles shifted depending on whether it was the 
complaining or responding part y. As the United States had explained repeatedly, there was no 
obligation under the DSU for a Member to provide further status reports on the progress of its 
implementation once that Member announced that it has implemented  the DSB's recommendations. 
The w idespread practice of Members – including the EU as a responding party – confirmed this 
understanding of Article 21.6 of the DSU. Indeed, at recent DSB meetings, two Members (Brazil and 
China) had informed the DSB that they had come into compliance with th e DSB's recommendations 
in three disputes (DS472, DS497, and DS517), and the complaining parties had not accepted the 
claims of compliance. Those Members had not provided a status report for the present meeting, 
consistent with the understanding that there  was no obligation for a Member to provide further 
status reports once that Member announced that it had implemented the DSB's recommendations. 
Accordingly, since the United States had informed the DSB that it had come into compliance in this 
dispute, ther e was nothing more for the United States to report in a status report . 
2.5.  The DSB took note of the statements.  WT/DSB/M/442  
- 11 - 
  3  EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES AFFECTING 
TRADE IN LARGE CIVIL AIRCRAFT : IMPLEMENTATION OF THE RECOMMENDATIONS 
ADOPTED BY THE DSB  
A. Statement by the United States  
3.1.  The Chairman  said that t his item was on the Agenda of t he present  meeting at the request of 
the United States . He then  invite d the representative of the United States to speak.  
3.2.  The repres entative of the United States  noted that once again the European Union had not 
provided Members with a status report concerning the "EC – Large Civil Aircraft" dispute (DS316). 
As the United States had noted at several recent DSB meetings, the EU had argued – under a 
different Agenda item – that where the EU as a complaining party did not agree with another 
responding party Member's " assertion  that it has implemented the DSB ruling", "the issue remains 
unresolved for the purposes of Article 21.6 DSU". Under this Agenda item, however, t he EU argued 
that by submitting a compliance communication, the EU no longer needed to file a status report, 
even though the United States as the complaining party did not agree with the EU's assertion that 
it had complied. The EU's position appears to be premised on two unfounded assertions, neither of 
which was based on the text of the DSU. First, the EU had erroneously argued that where "a matter 
is with the adjudicators, it is temporarily taken out of the DSB's surveillance". There was nothing in 
the DS U text to support that argument, and the EU provided no explanation for how it read DSU 
Article 21.6 to contain this limitation. Of course, this would be a convenient limitation on Article 21.6 
for purposes of this dispute, as the DSB had authorized the Un ited States to impose countermeasures 
of approximately US$  7.5 billion annually due to the adverse effects on the United States from 
subsidies provided by the EU and four EU member States. But that limitation did not exist in the text 
of Article 21.6. Seco nd, the EU once again relied on its incorrect assertion that the EU's initiation of 
compliance panel proceedings meant that the DSB was somehow deprived of its authority to 
"maintain surveillance of implementation of rulings and recommendations". Yet again , there was 
nothing in Article 2 of the DSU or elsewhere that limited the DSB's authority in this manner. It was 
another invention of the EU. The EU was not providing a status report because of its assertion that 
it had complied, demonstrating that the EU' s principles varied depending on its status as complaining 
or responding party. Perhaps the EU chose not to report on the progress in its implementation 
because, rather than actually attempt to achieve compliance in this dispute, the EU had pursued a 
strategy of endless and meritless litigation. The report of the second compliance panel shows how 
misguided the EU's strategy was. The second compliance panel, like the prior one, had rejected the 
EU's claim of compliance. But despite yet another finding of non -compliance, the EU had chosen to 
appeal the panel report, seeking yet more litigation in this 15 -year dispute. The representative of 
the United States asked the EU whether it would not be more productive for the EU and its member 
States to focus on resolv ing this dispute. Despite the countermeasures on EU imports that the United 
States had been compelled to impose, the United States still awaited a proposal from the EU on how 
it would withdraw all the subsidies  that the DSB had found continued to cause adv erse effects after 
the EU's implementation period had ended. In sum, the US position on status reports had been 
consistent and clear: under Article 21.6 of the DSU, once a responding Member announced to the 
DSB that it had complied, there was no further "p rogress" on which it could report, and therefore no 
further obligation to provide a status report. But as the EU allegedly disagreed with this position, it 
should for future meetings provide status reports in this “EC – Large Civil Aircraft” dispute (DS316 ). 
The EU could report on the progress in its implementation in this dispute in light of the five separate 
WTO reports having found that the EU and four member States had failed to comply with WTO 
subsidy rules . 
3.3.  The representative of the European Union  said that, as during previous DSB meetings,  the 
United States had again mentioned 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 United States had also referred to the EU 's appeal filed against the report of the second 
compliance panel as an example of the EU pursuing "endless and meritless litigation … instead of 
attempting to achieve compliance ". Both US assertions were without merit . As the EU ha d repeatedly 
explained at past DSB meetings, the crucial point for the defending party 's obligation to provide 
status reports to the DSB was the stage of the dispute . In the "EC – Large Civil Aircraft" case 
(DS316) , the dispute was at a stage wher e the defending party d id not have an obligation to submit 
status reports to the DSB . The EU recalled that  in that case the EU had notified a new set of 
compliance measures to the DSB . That new set of compliance measures were a clear demonstration 
that the  EU – contrary to the U nited States in the parallel "US – Large Civil Aircraft (2nd complaint)" WT/DSB/M/442  
- 12 - 
  case (DS353) – was serious about and committed to achieving compliance . That new set of 
compliance measures had been  subject to an assessment by a compliance panel and that panel 's 
report had been  issued on 2 December  2019. As noted in the statement made by the EU at the 
18 December  2019 DSB meeting , the EU believed  that significant aspects of the compliance panel 's 
report could not be regarded as legally correct and were very problematic from a systemic 
perspective when it c ame to assessing compliance with the subsidy disciplines of the WTO 
Agreements . It was in order to have these legal errors corrected, and not – as the U nited States 
assert ed – to continue litigation for the sake of litigation, that the EU ha d filed an appeal against the 
compliance panel 's report on 6 December  2019. The EU was  concerned that with the current 
blockage of the two -step multilateral dispu te settlement system, the EU  was losing the possibility of 
a proper appellate review of the serious flaws contained in the panel report . While the blockage 
continue d, the EU  stood ready to discuss with the U nited States alternative ways to deal with this 
appeal . The EU  was also committed to finding a balanced negotiated solution with the U nited States 
that would allow leaving both aircraft disputes behind . These considerations d id not, however, alter 
the fact that the compliance proceeding in this dispute h ad not been concluded . Whether or not the 
matter was "resolved " in the sense of Article 21.6 of the DSU remain ed the very subject matter of 
this ongoing litigation . The EU asked how it could be said that  the defending party should submit 
"status reports " to the DSB in such circumstances . The EU would be very concerned with a reading 
of Article 21.6 of the DSU that would require the defending party to notify the purported "status of 
its implementation effo rts" through the submission of status reports to the DSB, while dispute 
settlement proceedings on that precise issue were ongoing . The EU note d that its reading of the 
provision was supported by other WTO Members . The EU 's view wa s further supported by Art icle 2 
of the DSU on the administration of the dispute settlement rules and procedures : where, further to 
the disagreement between the parties on compliance, a matter was with the adjudicators, it was 
temporarily taken out of the DSB 's surveillance.  
3.4.  The DS B took note of the statements.  
4  INDIA – TARIFF TREATMENT ON CERTAIN GOODS IN THE INFORMATION AND 
COMMUNICATIONS TECHNOLOGY SECTOR  
A. Request for the establishment of a panel by the European Union (WT/DS582/9)  
4.1.  The Chairman  recall ed that the DSB had considered this matter at its meeting on 5 March  2020 
and had agreed to revert to it, should a requesting Member wish to do so . He then drew attention 
to the communication from the European Union  contained in document WT/DS582/ 9 and  invite d the 
representative of the European Union to speak . 
4.2.  The representative of the European Union  said that his delegation  had already raised this issue 
at the 5 March  2020 DSB meeting . The EU wished to recall that I ndia, in the framework of the WTO, 
had taken the commitment not to apply import duties on information and communications 
technology (ICT) products . However, for several years, India had adopted measures to reintroduce 
and regularly increase import duties o n those products, up to 20 %, and this despite the tariffs of its 
WTO bound Schedule of concessions on those products . The EU ha d raised the issue of India 's tariffs 
on ICT products a number of times bilaterally as well as in various WTO fora . Unfortunately , without 
solving the problem thus far. The value of EU annual exports of concerned goods to India amount ed 
to around EUR  400 million . The consultations meeting of 2 1 May 2019 had only been useful in 
clarifying a certain number of points but had failed to solve the problem . The EU ke pt urging India 
to bring its tariffs on ICT products in line with its WTO obligations . To this end, at the 
28 February  2020 DSB meeting (resumed on 5 March  2020), the EU had requested the 
establishment of a panel . India had opposed th e EU's panel  request at that meeting . At the present 
meeting , the EU request ed for the second time the establishment of a panel in this case to assess 
fully India 's measures . In addition, the EU request ed the establishment of a single pan el in this case 
and in two other cases which cover ed the same Indian  measures and which had been  initiated by 
Japan (DS584) and by Chinese Taipei  (DS588) . The panel requests  in both cases were on the Agenda 
of the present  meeting . All three cases were "related to the same matter " pursuant to  Article 9.1 of 
the DSU , i.e., (i) they identif ied the same tariff treatment by India of mostly identical ICT products, 
which were specified in the form of tariff lines in their respective panel r equests , and (ii) they 
provide d the same legal basis of complaint, i.e. , a violation of tariff concessions that India ha d 
committed to within the legal framework of the WTO on these ICT products, under Article II of the 
GATT 1994. The EU believe d that the establishment of a single panel to examine the complaints in 
these three cases was feasible, as consultation meetings ha d already taken place in all three cases , WT/DSB/M/442  
- 13 - 
  and as it would in no way impair India 's rights under the DSU . Indeed, establishing a single p anel 
would be desirable in these disputes as a way to organi ze the examination of this matter in an 
orderly and efficient manner, since this would save both time and human resources for India and 
each complainant . Such consideration was more pertinent  than ever in the current circumstances 
that the COVID -19 pandemic ha d brought upon the world.  
4.3.  The representative of India said that his country was  disappointed that the European Union 
had moved forward , for the second time,  with its request for the establishment of a panel in this 
dispute . As India ha d explained in its statement made at the 28 February /5 March  2020 DSB 
meeting , the E U was essentially request ing India to implement a declaration by select Members, 
namely, the Declaration on the Expansion of Trade in Information Technology Products (ITA -2), to 
which India was not a party . This dispute was also s eeking  to take advantage of an inadvertent error 
in the transposition of HS2002 to HS2007, of a purely formal character, committed while transposing 
the tariff lines and the description of the products recommended by the World Customs Organization 
(WCO) . India reiterate d that the measures identified by the EU  were consistent with India 's WTO 
obligations . India underst ood that a panel would be established at the present meeting . India st ood 
ready to defend its legitimate rights and interests in future proceedings . India note d that the EU ha d 
requested the establishment of a single panel to examine its claims along with certain other matters 
that were on the Agenda of the present meeting . India did not agree to this request as these matters 
could not be said to be related.  
4.4.  The representative of the United States  said that a s the United States had explained at the 
28 February  2020 DSB meeting  (resumed on 5 March  2020), the United States share d the 
European  Union 's serious concerns regarding the customs duties applied by India on imports of 
certain information and communications technology (ICT) products . The United States ha d raised 
these concerns bilaterally with India and in the WTO committee s over the past several years . Once 
again, the United States  called on India to provide duty -free access for the products for which India 
had a WTO commitment to do so . The United States w ould closely monitor the progress of this 
dispute, as well as the di sputes initiated by Japan (DS584) and Chinese Taipei (DS588) also 
concerning India 's tariff treatment of certain ICT products.  
4.5.  The representative of Japan  said that his country  share d the concerns of the European Union 
regarding the matter raised in its pa nel request and support ed the establishment of a panel as 
requested by the EU . Japan ha d made its own panel request, which w ould be considered under 
Agenda item 6  of the present meeting . Japan w ould explain its position on the substance of the 
matter under  that Agenda item . The EU request ed the establishment of a single panel pursuant to 
Article 9.1 of the DSU to examine the same matter raised by the complainants in the disputes DS582, 
DS584 and DS58 8. Japan support ed the establishment of a single panel for the reasons explained 
by the EU . Although India had refused the establishment of a single panel at the present meeting , 
Japan continue d to hope that India would agree to the establishment of a sing le panel , in accordance 
with Article 9.1 of the DSU.  
4.6.  The representative of Chinese Taipei  said that his delegation  share d the EU's concerns 
regarding the matter raised in its panel request . Chinese Taipei  support ed the EU 's panel request . 
Chinese Taipei  had made its own panel request under Agenda item 7 of the present  meeting . 
Chinese  Taipei  would elaborate its position under that Agenda item. Chinese Taipei  also note d that 
the EU had request ed the establishment of a single panel pursuant to Articl e 9.1 of the DSU to 
examine the same matter raised in the disputes DS582, DS584 and DS588 . Chinese Taipei  believe d 
that it was appropriate  for the same matter to be heard by a single panel.  
4.7.  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 . 
4.8.  The representatives of Brazil, Canada , China , Indonesia , Japan , Korea , Norway , Pakistan , 
Russia , Singapore , Chinese Taipei , Thailand , Turkey  and the United  States  reserved their third -party 
rights to participate in the Panel's proceedings.  WT/DSB/M/442  
- 14 - 
  5  COLOMBIA – ANTI -DUMPING DUTIES ON FROZEN FRIES FROM BELGIUM, GERMANY 
AND THE NETHERLANDS  
A. Request for the establishment of a panel by the European Union (WT/DS591/2)  
5.1.  The Chairman  recall ed that the DSB had considered this matter at its meeting on 5 March  2020 
and had agreed to revert to it, should a requesting Member wish to do so . He drew  attention to the 
communication from the European Union contain ed in document WT/DS591/ 2 and  invite d the 
representative of the European Union to speak . 
5.2.  The representative of the European Union  said that his delegation  had serious concerns about 
the investigation leading to the imposition by Colombia of anti -dumping du ties on frozen fries from 
Belgium, the Netherlands and Germany . These relate d to almost all aspects of the investigation, 
from initiation, to the analyses on dumping, injury, causality as well as the respect of certain 
procedural rights . The EU did not wish to  repeat the more systemic concerns to which it ha d drawn 
the attention of the other Members during the 5 March  2020 DSB meeting . The EU was, however, 
concerned that Colombia might extend these anti -dumping duties through an expiry review . The EU, 
therefore , asked Colombia whether it could  confirm that the domestic industry ha d submitted an 
application for an expiry review of the measures . The EU urge d Colombia not to extend and to bring 
its unwarranted anti -dumping duties imposed on frozen fries from  Belgium, the Netherlands and 
Germany in line with its WTO obligations . To this end, the EU request ed the establishment of a panel 
to assess the WTO -compatibility of these duties.  
5.3.  The representative of  Colombia  said that his country  regret ted the EU  panel request at the 
present meeting . In fact, Colombia and the EU  had maintained a permanent dialogue at various 
levels . They ha d held extensive consultations on this matter on 15 -16 January  2020, and they ha d 
maintained their efforts to clarify any ambig uity and to resolve this dispute amicably . The 
anti-dumping measure at issue had been adopted as a result of a detailed investigation . Throughout 
the various stages of its investigation, the relevant  authority had acted  strictly in conformity with 
the rules set out in the Anti -Dumping Agreement . Colombia reiterate d its willingness to continue 
working with the EU with a view to finding an amicable resolution to this dispute in spite of the EU's 
panel request at the presen t meeting.  
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 Brazil, China , Honduras , India, Japan , Russia , Turkey  and the United 
States  reserved their third -party rights to participate in the Panel's proceedings.  
6  INDIA – TARIFF TREATMENT ON CERTAIN GOODS  
A. Request for the establishment of a panel by Japan (WT/DS584/9)  
6.1.  The Chairman  drew attention to the communication from Japan contained in document 
WT/DS584/9 and invite d the representative of Japan to speak.  
6.2.  The representative of Japan  said that India ha d raised its customs duties on certain products 
in the information and communications technology (ICT)  sector since 2014, in excess of the bound 
rates set forth in its Schedules of Concessions and Commitments annexed to the G ATT 1994. Japan 
had been raising its concerns with India for years, hoping that India would take Japan 's concerns 
seriously and recti fy the WTO -inconsistency . However, no action ha d been taken by India . 
Regrettably, India had further raised its customs duties on certain products in the ICT sector in 
February  2020. As Japan explain ed in its panel request, India 's measures were clearly in consistent 
with India 's obligations under the G ATT 1994, specifically Article II . Japan had requested 
consultations on 1 0 May 2019 and had held consultations with India on 2 3 May 2019 with a view to 
reaching a mutually satisfactory solution . However, Japan and India were unable to reach a  
satisfactory adjustment of the matter  through consultations . Therefore, Japan request ed, pursuant 
to Article 6 of the DSU, that a panel be established to examine the matter as set out in its panel 
request with  standard of terms of reference in accordance with Article 7.1 of the DSU . Japan also 
request ed the establishment of a single panel pursuant to Article 9.1 of the DSU to examine the 
same matter raised in the DS582, DS584 and DS588  disputes . Japan consider ed that establishing a WT/DSB/M/442  
- 15 - 
  single panel was the proper course of action to resolve these disputes . First, the requests for the 
establishment of a panel in these disputes would be all "related to the same matter " under Article  9.1 
of the DSU . In particular , they  identif ied the same specific measures, i.e. , India's tariff treatment of 
mostly identical ICT products, which was specified in the form of tariff lines as set out in the  
complainants'  respective panel requests . They also  provide d the same legal basis of c omplaint, 
i.e., a violation of tariff concessions that India ha d committed to within the legal framework of the 
WTO on  those ICT products, under Article II of the G ATT 1994. Second, Japan  believed that  
establishing a single panel to examine these three  complaints was feasible and would in , no way , 
impair India 's rights under the DSU . Indeed, establishing a single panel would be desirable in these 
disputes as a way to organize the examination of this mat ter in an orderly and efficient manner, 
since this would save both time and human resources for India and each complaining party . Such 
consideration was more pertinent than ever under the current circumstances brought on by the  
pandemic . Accordingly, Japan  request ed that a single panel be established in accordance with 
Article  9.1 of the DSU to examine the same matter in these disputes.  
6.3.  The representative of India said that his country  was disappointed that Japan propose d to 
establish a panel regarding  India's measures concerning its tariff treatment on certain goods. India 
consider ed Japan as a close trading partner, as attested by the Comprehensive Economic Partnership 
Agreement between Japan and India . India note d that Japan's requests for consultations and the 
establishment of a panel avoid ed references to either ITA -1 or ITA -2 which were key to 
understand ing the issues . India's original WTO Schedule ha d been subject to various amendments . 
India believed  that the Minist erial Declaration on Trade in Information Technology Products (ITA -1) 
did not contain any obligation to eliminate customs duties ( and other duties and charges of any kind) 
on the products mentioned by Japan in its requests . However, Japan essentially reque sted India to 
implement a declaration by select Members, namely, the Declaration on the Expansion of Trade in 
Information Technology Products (ITA -2), to which India was not a party . The issue was the result 
of an inadvertent error, of a purely formal character, committed while transposing the tariff lines 
and the product description recommended by the World Customs Organi zation at the time of  
transposi ng HS2002 to HS2007 . India ha d attempted to rectify the error through WTO document 
G/MA/TAR/RS/ 572 dated 2 5 September  2018, on which objections ha d been raised by certain 
Members, including Japan, despite the fact that the rectification request was in accordance with "the 
procedures for modification and rectification of Schedules of tariff concessio ns" contained in the 
Decision of 2 6 March  1980 (B ISD 27S/25) . India, on signing the ITA -1 in 1997, had presented its 
schedule of commitments, which had subsequently been certified in document WT/L ET/181. India 
wished to reiterate that it had not intend ed to commit , and w ould not commit to, any obligation 
beyond the scope of India's ITA -1 commitment as inscribed in that document . India maintain ed that 
the products arising out of technological progression c ould not be covered within ITA -1. Similarly , 
purported concessions solely emanating from incorrect HS transposition were not within the scope 
of substantive obligations arising from ITA -1. It was evident from WTO document G/MA/TAR/RS/24 
dated 2 April 1997 that India had made it very clear at the ti me of taking commitments under the 
ITA-1 that India reserve d its right to make technical changes to the schedule and to correct any 
errors, omissions or inaccuracies . India also note d that most of the products mentioned in Japan 's 
requests for consultation s and for the establishment of a panel were covered under the subsequent 
declaration of select countries which had led  to ITA -2, to which India was not a party . India was 
deeply conscious of its responsibilit ies and ha d always implemented the decisions reach ed at the 
WTO, including decisions of the DSB . The issues raised in this dispute seriously undermine d India's 
sovereignty , as the purported commitment went beyond the consent provided by India when it had 
agreed to im plement ITA -1. India wished to recall  the explanations provided during consultations 
and its offer for continuous bilateral engagement to resolve any issues in good faith . India invite d 
Japan to reconsider having  recourse to the establishment of a panel . For the se reasons, India was 
not in a position to accept the establishment of a panel at the present meeting . India believe d that 
open and bilateral discussions between the two parties in good faith remain ed the most constructive 
option and could lead to a  satisfactory outcome . India wished to extend an invitation for bilateral 
discussions as a basis for resolving any concerns . India note d that Japan ha d requested the 
establishment of a single panel to examine its claims along with certain other matters tha t were on 
the Agenda of the present meeting . India d id not agree to this request , as these matters c ould not 
be said to be related.  
6.4.  The representative of the European Union  said that his delegation support ed the proposal of 
establishing a single panel in t he three cases filed by Japan  (DS584) , Chinese Taipei (DS588)  and 
the EU (DS582) for the reasons already mentioned under Agenda item 4 . Therefore, the EU regret ted 
India's statement  on this matter.  WT/DSB/M/442  
- 16 - 
  6.5.  The representative of Chinese Taipei  said that his delegation share d the concerns of Japan  
regarding the matter raised in its panel request . Chinese Taipei  support ed Japan's  panel request . 
Chinese Taipei also note d that Japan  request ed the establishment of a single panel pursuant to 
Article 9 .1 of the DSU to examine the same matter raised in the disputes DS582, DS584 and DS588 . 
In this re spect , Chinese Taipei  believe d that it was appropriate for the same matter to be heard by 
a single panel.  
6.6.  The representative of the United States  said that a s stated under Agenda item 4  of the present 
meeting , the United States ha d serious concerns regarding the customs duties applied by India on 
imports of certain ICT products . The United States w ould closely monitor the progress of this dispute, 
as wel l as the disputes initiated by the European Union (DS582) and Chinese Taipei (DS588) also 
concerning India 's tariff treatment of certain ICT products.  
6.7.  The DSB took note of the statements and agree d to revert to this matter, should a requesting 
Member wish to do so.  
7  INDIA – TARIFF TREATMENT ON CERTAIN GOODS IN THE INFORMATION AND 
COMMUNICATIONS TECHNOLOGY SECTOR  
A. Request for the establishment of a panel by The Separate Customs Territory Of Taiwan, 
Penghu, Kinmen and Matsu (WT/DS588/7)  
7.1.  The Chairman  drew attention to the communication from Chinese Taipei  contained in document 
WT/DS588/ 7 and  invite d the representative of Chinese Taipei  to speak . 
7.2.  The representative of Chinese Taipei  said that s ince 2014, India had  increased the rate of 
customs duties imposed on imports of certain goods in the information and communications 
technology (ICT) sector . Some of these duties exceed ed the bound rates set forth in India's Schedule 
of Concessions annexed to the G ATT 1994 and were therefore inconsistent with India's obligations 
under Article II:1(a) and (b) of the G ATT 1994. By exceeding its bound rates, India afford ed certain 
ICT goods originating in Chinese Taipei treatment less favourable than that provided for in India's 
WTO Schedule . On 2 September  2019, Chinese Taipei had requested consultations with India  
pursuant to Article 4 of the DSU . The bilateral consultations had been  held on 21 November  2019. 
These consultations , however,  had failed to resolve the dispute . Therefore, pursuant to Article 7.1 
of the DSU, Chinese Taipei request ed that the DSB establish  a panel with standards terms of 
reference  to examine India's measures  concerning certain ICT goods as described in its panel  
request . Chinese Taipei noted that the EU and Japan ha d also submitted their requests for the 
establishment of a single panel in the disputes DS582 and DS584 respectively . The requests of 
Chinese Taipei, the EU and Japan relate d to the same matter , as they all relate d to the tariff 
treatment by India of certain ICT products . To ensure the efficiency of the proceedings, 
Chinese  Taipei  further request ed that in accordance with Article 9.1 of the DSU , a single panel be 
establish ed to jointly examine the contents of the requests by Chinese Taipei, the EU and Japan . 
7.3.  The representative of India said that his country  was disappointed that Chinese Taipei propose d 
to establish a panel on India 's measures concerning the tariff treatment  on certain goods in the 
information and communications technology sector. India believe d that consultations held with 
Chinese Taipei had been  constructive and that India had been  able to address the concerns raised 
by Chinese Taipei by adequately explaining its measures concerning the tariff treatment on certain 
goods in the ICT sector . India note d that Chinese Taipei's requests for consultations and for the 
establishment of a pan el avoid ed references to either ITA -1 or ITA -2 which were key to understand 
the issues . India's original WTO Schedule ha d been subject ed to various amendments . India believed  
that the Ministerial Declaration on Trade in Information Technology Products (ITA -1) did not contain 
any obligation to eliminate customs duties (and other duties and charges of any kind) on the products 
mentioned by Chinese Taipei in its requests . However, Chinese Taipei essentially request ed India to 
implement a declaration by select Members, namely, the Declaration on the Expansion of Trade in 
Information Technology Products (ITA -2), to which India was not a party . The issue was the result 
of an inadvertent error, of a purely formal characte r, committed while transposing the tariff lines 
and the description of the products recommended by the World Customs Organi zation (WCO) at the 
time of transposing HS2002 to HS2007 . India ha d attempted to rectify the error through WTO 
document G/MA/TAR/RS/5 72 dated 2 5 September  2018 on which objections ha d been raised by 
certain Members despite the fact that the rectification request was in accordance with "the WT/DSB/M/442  
- 17 - 
  procedures for modification and rectification of Schedules of tariff concessions " contained in the  
Decision of 2 6 March  1980 (B ISD 27S/25) . India, on signing the ITA -1 in 1997, had presented its 
schedule of commitments, which had subsequently been certified in document WT/L ET/181. India 
wished to reiterate that it had not intend ed to commit , and w ould not commit to, any obligation 
beyond the scope of India's ITA -1 commitment as inscribed in that document . India maintain ed that 
the products arising out of technological progression c ould not be covered within ITA -1. Similarly, 
purported concess ions solely emanating from incorrect HS transposition were not within the scope 
of substantive obligations arising from ITA -1. It was evident from WTO document G/MA/TAR/RS/24 
dated 2 April 1997 that India had made it very clear at the time of taking commit ments under the 
ITA-1 that India reserve d its right to make technical changes to the schedule and to correct any 
errors, omissions or inaccuracies . India also note d that most of the products mentioned in 
Chinese  Taipei 's requests were covered under the sub sequent declaration of select countries which 
had led to ITA -2, to which India was not a party . India was deeply conscious of its responsibility and 
had always implemented the decisions reach ed at the WTO, including decisions of the DSB . The 
issues raised in this dispute undermine d India's sovereignty , as the purported commitment went 
beyond the consent provided by India when it had agreed to implement ITA -1. India asked 
Chinese  Taipei to recall India's explanations of its measures and its offer for continuous bilateral 
engagement to resolve any issues in good faith, a s well as to  reconsider its recourse to the 
establishment of a panel . For the se reasons, India was not in a position to accept the establishment 
of a panel at the present meeting . India reiterate d its willing ness to cooperate with Chinese Taipei 
to seek a mutually satisfactory solution at a bilateral level . India believe d that open and bilateral 
discussions  in good faith  between the two parties w ould result in a more constructive and satisfactory 
outcome . India note d that Chinese Taipei ha d requested the establishment of a single panel to 
examine its claims along with certain other matters that were on the Agenda of the present meeting . 
India d id not agree to this request , as these matters could n ot be said to be related.  
7.4.  The representative of Japan  said that his country  share d the concerns of Chinese Taipei  
regarding the matter raised in its panel request , and that it support ed the establishment of a panel 
as requested . Japan w ould not re iterate  its position on this matter and simply wished to refer to its 
previous statements made under Agenda items 4 and 6 at the present meeting . 
7.5.  The representative of the European Union  said that his delegation  wished  to support the 
proposal of establishing a single panel in the three cases filed by Chinese Taipei , Japan and the EU 
for the reasons already mentioned under Agenda item 4  of the present meeting . Therefore, the EU 
regret ted India's  statemen t. 
7.6.  The representative of the United States  said that , as stated under Agenda items 4 and 6 o f the 
present meeting , the United States ha d serious concerns regarding the customs duties applied by 
India on imports of certain ICT products . The United States w ould closely monitor the progress of 
this dispute, as well as the disputes initiated by the European Union (DS582) and Japan (DS584) 
also concerning India 's tariff treatment of certain ICT products.  
7.7.  The representative of Chinese Taipei  said that his delegation wished to express  regret at India's 
reject ion of its  single panel request . Chinese Taipei  had a preference for the establishment of a single 
panel under Article 9.1 of the DSU because the co -complainants' request s relate d to the same matter 
and it would be  more efficient to consolidate th ose proceedings . Furthermore, India ha d failed to 
provide an  adequate explanation as to why it would not be feasible or appropriate for the matter to 
be heard by a single panel.  
7.8.  The DSB took note of the statements and agree d to revert to this matter, should a requesting 
Member wish to do so.  
8  JAPAN – MEASURES RELATE D TO THE EXPORTATION OF PRODUCTS AND TECHNOLOGY 
TO KOREA  
A. Request for establishment of a panel by the Republic of Korea (WT/DS590/4)  
8.1.  The Chairman  drew attention to the communication from the Republic of Korea contained in 
document WT/DS590/4 and invite d the representative of Korea to speak.  WT/DSB/M/442  
- 18 - 
  8.2.  The representative of Korea  said that his country  request ed the establishment of a panel to 
examine Japan 's imposition of export restrictions on certain products and related technologies 
destined for Korea . On 1 July 2019, Japan had announced an amendment to its export licensing 
requirements on the export of fluorinated polyimide, resist polymers, and hydrogen fluoride, as well 
as their related technologies, when destined to Korea (Amended Export Licensing Requi rements) . 
The Amended Export Licensing Requirements imposed a WTO -inconsistent restriction on 
exportation, which had become effective on 4 July 2019. These requirements had been  further 
amended on 2 0 December  2019. The products subject to Japan 's trade res trictions were products 
primarily used in the production of smartphone displays, TV displays, and semi -conductors . These 
products were essential inputs in the electronics industry, a strategically important industry for 
Korea . As a result of the Amended Ex port Licensing Requirements, the export of the three previously 
mentioned products to Korea was subject to increased scrutiny, unnecessary delays, uncertainties, 
costs, and other serious restrictions . Japan's measure also restrict ed other forms of internat ional 
trade, including investments, licensing or transfer of intellectual properties, and supply of certain 
services relating to the three previously mentioned product s and their related technologies . Korea 
consider ed the imposition of such restrictions to be contrary to Japan 's WTO commitments under 
the G ATT 1994, the Agreement on Trade Facilitation, the Agreement on Trade -Related Investment 
Measures, the General Agreement on Trade in Services and the Agreement on Tra de-Related Aspects 
of Intellectual Property Rights . With a view to reaching a mutually satisfactory solution, Korea and 
Japan had held consultations on 1 1 October  and 1 9 November  2019. In addition to the se 
consultations, Korea and Japan had held bilateral negotiations between their trade officials in an 
effort to resolve the dispute . Unfortunately, these consultations had not resolve d the dispute . For 
these reasons, and pursuant to Article 6 of the DSU, Korea request ed that the DSB establish a panel 
to exam ine this matter with standard terms of reference as set out in Article 7.1 of the DSU.  
8.3.  The representative of Japan  said that his country  wished to express  disappoint ment at Korea 's 
decision to unilaterally disrupt the ongoing effort to explore the resolution of th is issue through 
dialogue between the two export control authorities and to request the establishment of a panel . 
Korea was challeng ing Japan's export licens ing requiremen ts for exporting hydrogen fluoride, resists 
and fluorinated polyimide, all of which were internationally recognized as dual -use items, 
meaning  that they ha d military applications . Korea wrongly describ ed those requirements as 
"a politically -motivated, disguised restriction on trade ". Japan wished to draw attention to three  
essential points regarding the measure . 
8.4.  First, Japan 's export control system was no different from those of other countries . WTO rules, 
including such clauses as Article XXI of the GATT, fully recognize d WTO Members' right to adopt an 
export control policy and implement an export control system in order to prevent unintended exports 
of goods and transfers of technologies that c ould be potentially diverted to weapon s or military use . 
In addition, under international export control regimes , established independently from the WTO, 
the right of each participating State to decide on actual enforcement and implementation was fully 
recognized and respected, while States pa rticipating in these regimes share d common lists of 
controlled goods and technologies . In accordance with these established practices, Japan had 
implement ed export licens ing requirements solely with a view to exercising and enhancing 
appropriate export con trol over goods and technologies aimed at  verifying whether such dual -use 
goods and technologies being exported or transferred from Japan pose d a risk of being diverted to 
military use . In relation to the three items at issue, the export control undertaken by individual 
exporters tend ed to be managed in an inappropriate manner due to the tight delivery schedule 
requested by users . In fact, there had been  actual instances of exports not being properly managed . 
As Japan supplie d substantial quantiti es of the three items at issue, it b ore significant responsibility  
to properly fulfil its export control obligation . As background to Japan 's measure on the three items, 
there ha d been underlying concerns , including vulnerabilities in the organization of K orea's export 
control system and its operation, which remained  the case . Korea's claims, if upheld, would 
compromise WTO Members ' right to operate effective control over exports of goods and transfers of 
technologies . Japan was seriously concerned that Korea was challenging fundamental premises 
underlying the internationally established frameworks and efforts for non -proliferation of arms and 
sensitive military technologies , including weapons of mass destruction . This pose d a serious risk of 
destabilizing international peace and security . 
8.5.  Second, the July 2019 update of Japan 's export control vis-à-vis Korea in no way constitute d 
an export ban, and Japan continue d to allow for exports once civilian use was confirmed . Japan 
wished to underline that the export licens ing requirements applicable to  the three items at issue d id 
not constitute a quantitative restriction, let alone an export ban . Once it was confirmed that the WT/DSB/M/442  
- 19 - 
  goods and related technologies were exported for civil ian use, Japan 's competent authorities ha d 
granted, and w ould grant, export licenses in accordance with the specified procedure and published 
timeline . In fact, Japan ha d already granted export licenses for exports of all of the three items 
which were confirmed to be for civil ian use. As a result,  and as the Korean Government had itself 
stated at various occasions, no disruptions in the supply chains ha d been caused.  
8.6.  Third, a number of bilateral meetings had been  held to build a relationship of trust before the 
sudden announcement by Korea t hat it would  take the matter to WTO dispute settlement . Japan 
recognize d that enhancing mutual understandings of export control systems and building a 
relationship of trust between export control authorities was the best and only way to resolve this 
matter . Such approach was also in accordance with the principles of the DSU .6 Export control 
authorities of the two countries  had been  engaged in the Japan -Korea Export Control Policy Dialogue 
and other communications with a view to resolving the issue until the abrupt announcement by 
Korea t hat it would  halt the process . Through D irector -General level meetings lasting for more than 
24 hours in total and a series of follow -up conversations at various levels, according to their joint 
press release, "both sides could mutually enhance understandings on export control systems each 
other ".7 Japan remain ed hopeful that Korea would return to the table of dialogue in the near future . 
For these reasons and  due to the lack of any foundation to Korea's  claims, Japan d id not agree to 
the establishment of a panel . 
8.7.  The representative of the United States  said that to the extent that Japan indicated that its 
measures were justified on the basis of Article XXI , the United States noted that issues of national 
security were political in nature and were not matters appropriate for adjudication in the WTO dispute 
settlement system. Every Member of the WTO retained the authority to determine for itself those 
matters that it considered necessary to the protection of its essential security interests, as was 
reflected in the text of GATT  1994 Article XX I.8 Therefore, if Japan invoked the essential security 
exception in defence of the challenged measures, the United States considered that the panel would 
lack the authority to review that invocation and to make findings on the claims raised in the dispute. 
The United States recalled that un der DSU Article 7.1, a panel was to examine the matter referred 
to the DSB by the complaining party and "to make such findings as will assist the DSB in making 
the recommendations or in giving the rulings provided for in that/those agreement(s)". If Articl e XXI 
were invoked, there were no findings by the panel that could assist the DSB in making the 
recommendations provided for in DSU Article 19.1.9 This was because the DSB might  make no 
finding of WTO -inconsistency or recommendation to a Member to bring i ts measure into conformity 
with WTO obligations. Therefore, if a panel was established and if Japan invoked Article XXI, any 
findings should be limited to a recognition that Article XXI had been invoked. Under these 
circumstances, the United States conside red that the parties should resolve the issues raised in this 
dispute outside the context of WTO dispute settlement. If the parties were unable to resolve the 
issue bilaterally, the United States encouraged the parties to request assistance from the 
Direct or-General through his good offices or from another person or WTO Member in which the 
parties had confidence. Further, if a panel was established, it should consult with the parties "to 
develop a mutually satisfactory solution".10 
8.8.  The representative of Korea said that  Japan seem ed to disagree with Korea 's claim that the 
new requirements were not consistent with WTO law . Korea also t ook note of Japan 's position that 
they were legitimate export control related requirements . It was because of this disagreement  
between their two countries that Korea was requesting the establishment of a panel. As the DSU 
clarifie d, seeking recourse to dispute settlement was not a contentious act but rather was aimed at 
securing a positive solution to a dispute . Pursuant to  Article 23 of the DSU, requesting the 
establishment of a panel to undertake an objective assessment of the matter was in fact the required 
course of action for Korea . Korea w ould, therefore , not seek to respond to Japan 's statement  at the 
 
6 Article 3.7 of the DSU "... [a] solution mutu ally acceptable to the parties to a dispute and consistent 
with the covered agreements is clearly to be preferred ...".  
7 Joint press release for the Seventh Japan -Korea Export Control Policy Dialogue (16 December 2019).  
8 Article XXI(b) of the GATT 1994: "[n]othing in this Agreement shall be construed … (b) to prevent any 
contracting party from taking any action which it considers necessary  for the protection of its essential security 
interests  … (emphasis added).  
9 Article 19.1 of the DSU: "[w]here a pane l or the Appellate Body concludes that a measure is 
inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into 
conformity with that agreement".  
10 Article 11 of the DSU: "[p]anels should consult regularly with  the parties to the dispute and give them 
adequate opportunity to develop a mutually satisfactory solution".  WT/DSB/M/442  
- 20 - 
  present meeting , but w ould make  the relevant legal arguments in support of its claim before the 
panel. 
8.9.  The DSB took note of the statements and agree d to revert to this matter, should a requesting 
Member wish to do so.  
9  EUROPEAN UNION – CERTAIN MEASURES CONCERNING PALM OIL AND OIL PALM 
CROP -BASED BIOFUELS  
A. Request for the establishment of a panel by Indonesia (WT/DS593/9)  
9.1.  The Chairman  drew attention to  the communication from Indonesia contained in document 
WT/DS593/9 and invite d the representative of Indonesia to speak.  
9.2.  The representative of Indonesia  said that o n 9 December  2019, his country  had requested 
consultations with the European Union regarding certain measures of the European Union and its 
member States affecting trade in palm oil and oil palm crop -based biofuels . Indonesia  had noted 
that these measures appear ed to be inconsistent with th e obligations of the European Union and its 
member States under the G ATT 1994, the TBT Agreement and the SCM Agreement . Consultation s 
between the two parties had been  held on 1 8 February  2020 but unfortunately, they had not 
resolve d the dispute . On 18 March 2020, Indonesia had filed its request for the establishment of a 
panel . Indonesia request ed the establishment of a panel at the present m eeting to examine the 
matter identified in its panel request with standard terms of reference as set out in Article 7 .1 of the 
DSU. 
9.3.  The representative of the European Union  said that his delegation took  note of Indonesia's 
decision to request a WTO panel to examine  certain measures concerning pa lm oil and oil palm 
crop-based biofuels imposed by the European Union . The European Union recall ed that it had held 
constructive consultations with Indonesia on 1 9 February  2020. The EU  had expressed hope that the 
consultations had provided the necessary information and clarifications . Of course, Indonesia was 
entitled to bring t his matter to WTO dispute settlement . However,  the EU firmly believe d that its 
measures were fully justified . For these reasons, the EU was confident that it w ould prevail in this 
dispute, and that its actions w ould be declared to be consistent with WTO la w. At the present  
meeting, the EU was  not ready to accept the establishment of a panel . The EU also st ood ready to 
discuss with Indonesia reciprocal interim arrangements that would preserve the availability of appeal 
review in this and other disputes on the basis of Article 25 of the DSU either through the multi -party 
interim appeal arbitration arrangement or  through similar ad hoc arrangements.  
9.4.  The representative of Malaysi a said that her country wished to  commend the successful 
organi zation of the present meeting, in spite of the challenges brought on by the devastating 
COVID -19 pandemic . The presence of delegates at the meeting wa s an indication of the human 
spirit's formidability in the face of adversity . Malaysia view ed the renewable energy measures 
introduced by the European Union with concern . The EU ha d asserted that the se measures had b een 
designed for the goal of environmental preservation . Unfortunately, the practical effect of 
implementing the se measures w ould culminate in a barrier to trade that significantly distort ed the 
palm oil market and pricing system which could create an arbi trary and disguised restriction on 
international trading of palm oil and its products . Malaysia  wished to emphasise that palm oil 
producing countries, including Malaysia , had implemented various measures to ensure that the 
industry was being managed in a s ustainable manner as well as in line with the United Nations 
Sustainable Development Goals (UN SDG) 2030 . As the second largest producer of palm oil  in the 
world,  Malaysia wished  to voice its firm support for Indonesia in this dispute and for its  object ion 
against the measures  at issue . Malaysia consider ed that free and open trade was a hallmark of 
collective global prosperity and view ed the measures at issue as an impediment to t he liberali zation 
of global trade . The issues raised by Indonesia warrant ed an enquiry and deliberation by a panel, 
given the fact that the measures introduced by the EU could p ut the trade of palm oil, a key 
commodity among vegetable oils, at risk. Therefore, Malaysia  urged the DSB to look deeply into this 
matter as th is dispute ha d a strong and valid representation . Conducting an examination of the legal 
and technical issues raised by this dispute and providing a resolution to these issues also ha d the 
benefit of refining the corpus of existing WTO legal jurisprudence.  
9.5.  The DSB took note  of the statements and agree d to revert to this matter, should a requesting 
Member wish to do so.  WT/DSB/M/442  
- 21 - 
  10  AUSTRALIA – CERTAIN MEASURES CONCERNING TRADEMARKS, GEOGRAPHICAL 
INDICATIONS AND OTHER PLAIN PACKAGING REQUIREMENTS APPLICABLE TO TOBACCO 
PRODUCTS AND PACKAGING  
A. Report of the Appellate Body (WT/DS435/AB/R and WT/DS435/AB/R/A dd.1) and 
Report of the Panel (WT/DS435/R and WT/DS435/R/A dd.1 and WT/DS435/R/S uppl.1) 
B. Report of the Appellate Body (WT/DS441/AB/R and WT/DS441/AB/R/A dd.1) and 
Report of the Panel (WT/DS441/R and WT/DS441/R/A dd.1 and WT/DS441/R/S uppl.1) 
10.1.   The Chairman  said that, as Members were  aware,  Honduras had been a party to the dispute  
on: "Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain 
Packaging Requirements Applicable to Tobacco Products and Packaging"  and, for that reason, he 
had decided to recuse himself from chairing this Agenda item.  He therefore  invited 
Ambassador  Harald Aspelund, the Chairman of the Trade Policy Review Body (TPRB), to preside over 
the proceedings of this Agenda item.  
10.2.   The A cting Chairman , Ambassador Harald  Aspelund , propose d that the two sub -items under 
Agenda item 10 concerning the Appellate Body Reports and the Panel Reports in DS435 and DS441 
respectively, be taken up together . He then drew attention to the communication from the Appellate 
Body contained in document WT/DS435/27 -WT/DS441/28 transmitting the Appellate Body Reports 
in the disputes : "Australia – Certain Measures Concerning Trademarks, Geographical Indications and 
Other Plain Packaging Requirements Applicable to Tobacco Products and P ackaging", which had been  
circulated on 9 June 2020 in documents WT/DS435/AB/R and WT/DS435/AB/R /Add.1 and 
WT/DS441/AB/R and WT/DS441/AB/R /Add.1 . He remind ed delegations that the Appellate Body 
Reports and the Panel Reports pertaining to these disputes ha d been circulated as unrestricted 
documents . As Members were aware, Article 17.14 of the DSU require d 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 consensu s 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".  
10.3.   The representative of  the Dominican Republic  said that nearly  10 years ago, her country 
had initiated the WTO proceedings against Australi a's tobacco plain packaging measures . It was 
beyond question that the Dominican Republic  had fully shared Australi a's objective of reducing 
smok ing, and that it  continued to do so . However, the Dominican Republic  believe d that plain 
packaging was not effective and c ould be replaced by other tobacco control policies that would 
successfully reduce smoking without depriving the Dominican Republic  of trademarks that ha d 
helped it become the world's leading premium cigar producer and exporter . In the Report  to 
be adopt ed at the present meeting , the Appellate  Body  had confirm ed that the 
Dominican  Republic  had legitimate reasons to oppose plain packaging . The Appellate Body 
had reversed the Panel's finding that plain packaging reduce d tobacco consumption . It had 
also agreed with the Dominican Republic  that other tobacco control policies  were available 
to Australia , that they  were at least as effective as plain packaging in reducing smoking , 
and that they could do so without  interfering  with the Dominican Republic's  trademarks . The 
Appellate Body had further agreed with the Dominican Republic that the Panel had failed to give 
the Dominican Republic a fair hearing in assessing plain packagin g and thus depriving the 
Dominican Republic  of the due process rights that were an essential feature of any system of 
fair and independent adjudication . In sum, despite not having receiv ed a fair hearing, the 
Dominican Republic had demonstrated that Australia could fully achieve its public health 
objectives by replacing plain packaging with other tobacco control policies , and that it could do 
so without  prohibiting its trading partners from using their trademarks . 
10.4.   In the view of the Dominican Republic, t his course  of action would surely  strike  the 
proper  balance  between  health  and trade  policy that  all Members  should  strive  to achie ve, 
because  the health  and trade  objectives  could then each be achieved to their fullest . There 
was no need to sacrifice trademark protection in order to protect  health . However, the 
Dominican Republic  expressed r egret  at the Appellate  Body  having shied  away  from striking  
this balance  and having made this sacrifice . According to the Appellate Body, Australia was 
free to choose to maintain plain packaging, even though it br ought  no additional health 
benefits compared to other policies, and even though it eviscerate d the Dominican  
Republic's trademarks when other equally effective policies  did not. In the view of  the WT/DSB/M/442  
- 22 - 
  Dominican Republic, this outcome ma de no sense . This was not the bargain that the Dominican 
Republic believed it had struck under the covered  agreements . At the present meeting, the 
Dominican Republic  would highlight two systemic concerns with the Appellate Body Report . 
Before doing  so, the Dominican Republic  wished to emphasize its strong belief in appellate 
review as part of the WTO dispute settlement system . The Appellate Body ha d made an 
important contribution to the WTO over the past 25 years . It was because the 
Dominican  Republic  cared about the institution that it would wish to share its concerns regarding 
the Report . The Dominican Republic  invite d the Membership to consider these concerns  when 
thinking about how to revitalize the appellate review function in the WTO . 
10.5.   The Dominican Republic's  first systemic concern relate d to the Appellate Body' s treatment 
of the Dominican Republic's  appeals under Article 11 of the DSU . The Dominica n Republic's  
appellate proceedings had lasted  nearly  two years . During that time, the role of appeals based on 
Article 11 of the DSU had become an increasingly political issue . Indeed, even within the Appellate 
Body, Members  had seen dissenting opinions on issues related to Article 11 of the DSU , including in 
this appeal .11 Looking ahead, the Membership w ould continue to debate the role of Article 11 in  
dispute  settlement . This dispute serve d as a reminder of the important role t hat Article 11 play ed in 
achiev ing the objectives of WTO dispute settlement . Any system of fair and independent adjudication 
depend ed on an objective assessment . In this appeal, the Appellate Body ha d failed to ensure that 
the Dominican Republic's case received the fair and objective assessment it  deserved . The 
Dominican Republic was particularly concerned with the Appellate Body's treatment of  its 
appeals regarding the Panel's lack of objectivity in a ssessing cigar -specific evidence . As many 
Members knew, cigars ha d a prominent place in the Dominican Republic's history, culture and 
economy . In bringing this dispute, the Dominican Republic had  sought, above all, to safeguard 
the interests of its cigars . The Dominican Republic had  appealed a number of issues that were 
specific  to cigars . Remarkably, the Appellate Body had failed  to address  any of the 
Dominican  Republic's  cigar-related  claim s. The Report contain ed a half-sentence , which 
dismiss ed a complete  series  of claims  on a wide range  of issues, including cigar -related  claims, 
because "it appears" that all of these appeals were supposedly "not focused  on the objectivity  
of the Panel's  assessment".12 
10.6.   It would  be an understatement  for the Dominican Republic to say that it was disappointed  
with the treatment  of its cigar-related  appeals . The Dominican Republic had a sovereign right 
to file its cigar -related  appeals under Article 17 of the DSU . The Dominican Republic  consider ed 
it neither appropriate nor respectful for the Appellate Body to dismiss  its appeals  on products  of 
great  importance with a half sentence . Furthermore, the Appellate Body's half -sentence was 
misguided . The Dominican Republic's  cigar-related  appeals had focused expressly on the Panel's 
lack of even -handedness,  an issue which the Appellate Body ha d consistently s tated was a 
requirement of objectivity, including in this case .13 A half-sentence was inadequate to explain why 
a lack of even -handedness was "not focused on the objectivity of the Panel's assessment" .14 
It was also striking  that, in almost  eight  days of hearings, the Appellate  Body  had not taken 
the time to ask a single  question  to clarify  its evident misunderstanding  about  the 
Dominican  Republic's  cigar-related  appeals.  
10.7.   The Dominican Republic's  serious concerns with the Appellate Body' s findings d id not end 
there . An important part of its appeal related to the Panel's failure to give the 
Dominican  Republic  a fair hearing . In the past, the WTO ha d had an excellent track record of 
resolving contentious and sensitive cases with impeccable neutrality . Over the years, the 
Appellate Body ha d been instrumental, under Article 11 of the DSU, in ensuring that panels 
applied high standards of imp artiality . This was an important reason for the success of WTO 
dispute settlement . In this appeal, the Appellate Body had agreed with the Dominican Republic 
that the Panel had violated the Dominican Republic's due process rights .15 The 
Dominican  Republic  cared deeply that the Panel had failed to give it a fair hearing . The 
Dominican Republic  appreciate d the Appellate Body 's recogni tion that the Dominican Republic  
had not been granted  a fair hearing . However, the Dominican Republic was  shocked that the 
 
11 Appellate Body Report, paras. 6.523 -6.543. See also Appellate Body Report, EU – PET (Pakistan), 
paras. 5.54 -5.60. 
12 Appellate Body Report, para. 6.287, footnote 849.  
13 Appellate Body Report, para. 6.318. See also e.g., Appellate Body Report, Korea – Alcoholic 
Beverages, para. 163.  
14 Appellate Body Report, para. 6.287.  
15 Appellate Body Report, paras. 6.257 and 6.260.  WT/DSB/M/442  
- 23 - 
  Appellate  Body had drawn no substantive consequences at all from the Panel's failure to give 
the Dominican Republic  a fair hearing . The Appellate Body had not str uck out a single 
substantive finding on the basis of the Panel's failure to afford due process to the 
Dominica n Republic . The Appellate  Body  had admitted that  the denial  of due process  had 
tainted  two factors  that had played  "an important  role in the Panel's  assessment  of the 
evidence ".16 These two factors,  which  the Panel had applied repeatedly in assessing the 
Dominican Republic's evidence, were the  econometric concepts of multi -collinearity and 
non-stationarity . 
10.8.   To address these two factors, the Panel had created its own so-called  "evidence"17 – 
which was not part of the Panel record . It had then relied on its own "evidence" to dismiss 
the Dominican Republic's evidence, without giving the Dominican Republic any opportunity  
to be heard  on any of these  issues . The Appellate Body had found that the Panel had thereby 
denied the Dominican Republic its due process right to be heard . However, it had decided that 
the Panel's serious due process failings had no substantive consequences at all . To reach this 
result, the Appellate Body had r eweighed Australia's evidence  and h ad second -guess ed how the 
Panel would have assessed Australia's evidence without the two factors . Of course, the 
Appellate Body ha d no mandate to reweigh Australia's evidence, much less to wish away the 
relevance of two factors that the Panel had considered "important", as the trier of fact, to its 
assessment of the evidence .18 Even if it had been  appropriate  for the Appellate  Body to reweigh  
the evidence  without  the two factors, it should have reweighed the evidence from each party . 
However, the Appellate Body had only reweighed  Australia's  evidence,  and had not reweigh ed 
the complainants'  evidence .19 In that respect, the Dominican Republic had attempted to explain 
that the Panel' s denial of due  process  had important  substantive  consequences, and  that it 
would  have made  a difference  if the Dominican Republic had received a fair chance to address 
the Panel's concerns about its evidence . However, even though the Appellate Body itself had 
reweighed the facts , it had dismissed the Dominican Republic's  argument as "relitigating the 
facts" .20 The Appellate Body had conveniently forgot ten its own finding that the 
Dominican  Republic  had been denied  any chance  to litigate  these  "facts"  in the first place . The 
Dominican Republic was  left with the distinct impression that the Appellate Body had adopted a 
result -driven reasoning to find in favour of Australia . In so doing, it had aggravated the Panel's 
denial of due  process . 
10.9.   The Appellate Body had found a second violation of Article 11  of the DSU . The Panel had 
rightly accepted the uncontroversial rule that smoking falls when taxes rise .21 The Panel had applied 
this rule strictly to the complainants' evidence, but not to Australi a's. The Appellate Body had 
agreed that the Panel had not appl ied this rule to Australia's evidence on tobacco  consumption,  
which  showed that  consumption  rose when  taxes  rose. The Appellate  Body, therefore, had 
reversed the Panel's finding that plain packaging reduced tobacco consumption .22 The 
Dominican Republic appreciate d the Appellate Body' s recognition that there was no reliable 
basis to conclude  that plain packaging  reduced  tobacco  consumption . Similar to its evidence on 
tobacco consumpti on, Australia's evidence on smoking prevalence had failed to show that smoking 
prevalence fell when taxes rose. Yet, the Appellate Body had not reverse d the Panel's assessment 
of this evidence . The Dominican Republic  asked why the Appellate Body would not do so . The 
Appellate Body had stated it was because "the Panel did not explicitly indicate  that Australia's 
[prevalence] models were able to detect" the  proper impact of taxation .23 The Appellate Body's 
finding was, once more, shocking . The Panel's consideration of this factor  had been  critical to its 
assessment that the Dominican Republic's prevalence evidence was not reliable .24 Yet, by omitting 
to mention that Australia's prevalence models were also unable to detect the impact of taxation, the 
 
16 Appellate Body Report, p ara. 6.246.  
17 Panel Report, Appendix C, para. 107 and footnote 119 to para. 107; Appendix D, footnote 143 to 
para. 109.  
18 Appellate Body Report, para. 6.246.  
19 Appellate Body Report, paras. 6.264 -6.266. The footnotes to paragraphs 6.264 to 6.266 
(i.e., footnotes 784 -790) show that the Appellate Body's assessment addressed only the part of Appendix C 
that deals with Australia's evidence, i.e., repeated citations to Panel Report, Appendix C, paras. 120 -122. 
20 Appellate Body Report, para. 6.188.  
21 Panel Report , Appendix C, paras. 103 and 117.  
22 Appellate Body Report, para. 6.262.  
23 Appellate Body Report, para. 6.134 (first emphasis added; second emphasis in the original); see also 
footnote 445.  
24 Appellate Body Report, para. 6.261.  WT/DSB/M/442  
- 24 - 
  Panel had somehow been entitled to ignore this factor in  assessing Australia's evidence . In effect, 
the Appellate Body had blessed the Panel's application of double standards to the assessment of the 
evidence, because the Panel had not mention ed that it was applying double  standards . 
10.10.   In these – and many other – respects, the Appellate Body ha d let the Dominican Republic  
down . More importantly, it ha d let the WTO dispute settlement system  down . At a time when the 
Appellate Body was facing intense political pressure on appeals  related to Article 11 of the DSU , it 
had turned a blind  eye to the Panel's failure to act with fairness and objectivity . Members  could all 
agree that a panel enjoy ed discretion as the trier of fact . However, a panel d id not enjoy discretion 
either to deny  the parties their right to be heard, or to apply double standards to its factual  
assessment . As Members  looked ahead to restoring an appellate review worthy of the 
21st century, Members had to work towards  a system that  enable d panels  to make  decisions  
within their  discretion  and, at the same  time, ensure d that Members  were not deprived  of their 
right to an objective  assessment . 
10.11.   The Dominican Republic's  second systemic concern  related to  the TRIPS  Agreement . As 
Members knew, developed countries had led the negotiation of this Agreement, despite the 
scepticism of developing countries . Ultimately, developing countries had embrac ed the 
TRIPS  Agreement because they recognized that intellectual property , including trademarks, c ould 
serve the interests of developing countries . In the Dominican Republic, cigars were a good example 
of a development story that benefit ted from trademark protection . Over the past 30 years, the 
Dominican Republic had become the world's leading producer  and exporter of premium cigars, a 
high value -added product that relied on  trademarks to single out the Dominican Republic's  brands 
in foreign markets . Many developed Members ha d brought successful cases under the 
TRIPS  Agreement . However, this was the first TRIP S case brought by a developing country – 
indeed, not by one but  by four developing countries . It was with regret that these developing 
countries s aw that, when the TRIPS Agreement was invoked to safeguard their development 
interests  for the first time , the WTO ha d severely undermined trademark protection . 
10.12.   Most remarkably, the Appellate Body ha d stated that, under Article 20 of the 
TRIPS  Agreement, there was, at least in this case, no need to consider whether a challenged 
measure could be replaced by an alternative that contribute d at least equally to the challenged 
measure's objective without interfering with trademark use .25 In other areas of WTO law, the 
Appellate Body ha d emphasized the need to consider alternatives . The Dominican Republic  
support ed this "lesser harm" approach, which even the Panel had found relevant under Article 20 of 
the TRIPS Agreement, and which Australia had not challenge d on appeal . When a Member c ould 
fulfil a non -trade objective to the same extent through a measure that interfere d less with trade, it 
should take the "lesser harm" approach . In this way, such Member c ould fully promote its own 
non-trade objectives in a way that minimize d harm to the trade interests of other Members . 
10.13.   The Dominican Republic consider ed how this "lesser harm" approach had been  applied in 
this case . On the one hand, the Appellate Body had found that plain packaging impose d 
"far-reaching " prohibitions on the use of trademarks, while making only a "rather modest " 
contribution to Australia' s objective .26 The Appellate Body had agreed with the Dominican Republic 
that there was no reliable evidence that plain packaging reduced tobacco consumpti on. On the other 
hand, the Appellate Body  had stated that Australia could achieve the same health outcome with 
alternative measures that d id not interfere with trademarks . Indeed, it had been  uncontested that 
the alternatives would immediately red uce both tobacco consumption and smoking prevalence , and 
that they would do so without interfering with trademarks . From the perspective of the "lesser harm" 
approach, the outcome was obvious . Yet, the Appellate Body had rejected the "lesser harm" 
approach  in this case, even while admitting that the availability of effective alternatives "call[s] into 
question" the justifiability of the challenged measure .27 For the Appellate Body, under Article 20 of 
the TRIPS Agreement , there was no need in this case to consider the inconvenient question that the 
alternatives raise d. This left the Dominican Republic  to wonder why its trademark interests were 
sacrificed to endorse plain packaging, when plain packaging br ought  no additional health  benefits . 
10.14.   The Appellate Bo dy's answer was wholly unsatisfying . The Appellate Body had  argue d that 
alternatives had to  be assessed only when the treaty establishe d a "necessity" test . Yet, the 
 
25 Appellate Body Report, paras. 6.654 -6.655, 6.695 -6.697.  
26 Appellate Body Report, paras. 6.493, 6.666, 6.674, 6.675, 6.678, 6.696, 6.697 (emphases added).  
27 Appellate Body Report, paras. 6.655, 6.695.  WT/DSB/M/442  
- 25 - 
  Appellate Body itself ha d applied the "lesser harm" approach when the text of a treaty did not provide 
for a "necessity" test . The text of Article XX(g) of the G ATT 1994, on the conservation of natural 
resources, ha d no "necessity" test . Yet, the Appellate Body had stated  that alternative measures 
had to  be assessed .28 The Dominican Republic asked where  had the Appellate Body f ound the "lesser 
harm" approach under Article XX(g)  of the G ATT 1994. The Appellate Body had  found it in the 
chapeau of Article XX : a measure was "arbitrary or unjustifiable" when it c ould be replaced with a 
less trade -restrictive alternative that ma de an equivalent contribution .29 Thus, the Appellate Body 
had already found that the word "unjustifiable" – which was the very word used in Article 20 of the 
TRIPS Agreement  – require d the consideration of alternative s. Following the Appellate Body's own 
past reasoning, the Dominican Republic , therefore, was at a loss to see any principled basis for the 
Appellate Body's decision to abandon the "lesser harm" approach when considering the trademark 
interests of the Domin ican Republic in this case . The Dominican Republic wished to underscore its 
deep disappointment and frustration with the Reports that would be adopt ed at the present meeting . 
WTO panels and the Appellate Body had to  apply the rules in a fair and objective manner, irrespective 
of the type of products before them . The Dominican Republic  hoped and believe d that the system 
would be strong enough to live up to this fundamental principle in the future.  
10.15.   The representative o f Honduras  said that her country  took note of Australia 's request to 
adopt the Appellate Body Report in th is dispute . The Appellate Body had generally upheld the Panel 's 
findings that it had not been demonstrated that Australia 's plain packaging legislation violate d 
Australia 's WTO obligations . Honduras was disappointed by these findings . Honduras wishe d to make 
a few comments on the Appellate Body 's findings on its claims under Article 11 of the DSU, Article  2.2 
of the TBT Agreement, and Articles  16 and 20 of the TRIPS Agreement, before highlighting a number 
of systemic procedural concerns . First, Honduras welcome d the Appellate Body 's very important 
finding that the Panel  had failed to respect the due process rights of Honduras concerning the 
examination of the econometric evidence on the alleged effect of the measure at issue on 
consumption and prevalence of tobacco products . Honduras agree d with the Appellate Body that due 
process was "an essential feature of a rules -based system of adjudication, such as that established 
under the DSU ". It was thus all the more significant that the Appellate Body had expressly found 
that "in its examination of the post -implementation evidence of smoking prevalence and 
consumption, the Panel denied the  parties their due process rights and thus acted inconsistently 
with its duty to conduct an objective assessment of the facts under Article 11 of the DSU ". 
10.16.   In other words, the Appellate Body had found that the Panel 's examination of the only 
two metrics fo r determining the effect of plain packaging on actual smoking behavio ur had been  the 
result of a process that had failed to respect an "essential feature " of a rules -based dispute 
settlement system – due process . This failure highlight ed the lack of evidence that plain packaging 
was an effective tobacco control instrument . In fact, more recent official prevalence data of Australia 
confirm ed that the plain packing legislation ha d not been effective in reducing smoking in Australia .30 
Even the Australian Institute of Health and Welfare ha d noted that "for the first time in over 
two decades, the daily smoking rate did not significantly decline over the most recent 3 year period 
(2013 to 2016) ".31 Moreover, in March  2018, the Australian Bureau  of Statistics had released its 
accounts on national household expenditure on tobacco products – this was a data source on which 
the Panel had relied in its examination of tobacco sales and consumption .32 This newly released data 
showed an increase in expenditure on tobacco products for the first time since 2004 . These 
expenditures had increased by 2.6 % in the final quarter of 2017 compared with the same period in 
2016, suggesting, if anything, an increase rather than a decrease in total  consumption .33 This more 
recent evidence , of course , had not been before the Panel and could thus not be reviewed by the 
Appellate Body . The Panel and Appellate Body Reports should therefore be read keeping in mind 
that they were not based on current, up -to-date evidence . The more recent evidence was further 
 
28 Appellate Body Reports, US – Gasoline, pp. 26 -29 and US – Shrimp, par as. 171 -172 and 176; see 
also Panel Report, China – Rare Earths, para. 7.354 and footnote 549.  
29 Appellate Body Reports, US – Gasoline, pp. 26 -29 and US – Shrimp, paras . 171-172 and 176.  
30 Results for the 2019 NDSHS were expected to be released in the thir d quarter of 2020.  
31 Australian Institute of Health and Welfare, National Drug Strategy Household Survey (NDSHS) 2016 
key findings, http://www.aihw.gov.au/alcohol -and-other -drugs/data -sources/ndshs -2016/key -findings/.  
32 Panel Report, Appendix D, section 1. 1.4. 
33 Australian Bureau of Statistics, Australian National Accounts: Household Expenditure on "Cigarettes 
and Tobacco" (December 2017), p. 44.  
www.ausstats.abs.gov.au/ausstats/meisubs.nsf/0/9355EEA037741EDFCA258248000BC099/$File/52060_dec%
202017.pdf.  WT/DSB/M/442  
- 26 - 
  confirmation that, as demonstrated by Honduras during the legal proceedings, Australia 's plain 
packaging legislation lack ed effectiveness.  
10.17.   In sum, Honduras consider ed that the only logical conclusion to draw from the Appellate 
Body Report was that the Panel 's factual findings that plain packaging ha d been effective in reducing 
smoking were not valid, because they were the result of a process that had failed to respect the due 
process rights of Honduras . The Appellate Body had gone  thus far as to vitiate the Panel 's finding on 
the alleged contribution to reducing tobacco consumption . This mean t that the claim that plain 
packaging ha d worked to reduce the consumption of t obacco products was unsupported . 
Remarkably, however, the Appellate Body had re-constructed the Panel 's overall contribution 
analysis to surgically remove the flawed aspects of the findings with a view to suggesting that, even 
absent these errors, the Pane l's overall finding could still stand . This was entire ly inappropriate . It 
was not  know n whether the Panel would have made these findings absent the all -important concerns 
over multicollinearity and non -stationarity that had never been tested with the parties and thus had 
given rise to a violation of Article 11 of the DSU . It was also not know n whether the Panel would 
have perhaps finally questioned the logic of the causal chain model on which Australia had relied so 
heavily, given that,  as the Panel itself  had confirmed, there had been  no evidence for the assertion 
that this causal chain model had actually been working . There had been  no evidence of an increase 
in cognitive processing of the health warnings, no evidence of an increase in  quitting intentions, no 
evidence of an increase in quitting attempts and, as confirmed by the Appellate Body, no evidence 
of any effect on reducing consumption of tobacco products . Honduras  believed that  the Appellate 
Body should have reversed the Panel 's findings that had been  tainted by the violation of due process 
rights . It should then have examined whether it had been  asked to, and whether it had a sufficient 
factual basis to, complete the legal analysis . Unfortunately, the Appellate Body had failed to do that . 
It had thus concluded that a violation of due process, which the Appellate Body  itself had described 
as an "essential feature " of a rules -based dispute settlement system, had had "no impact " on the 
Panel's ruling . This was striking, because the due process violation had impa cted a finding about the 
only factors that indicated any actual effect of plain packaging on smoking behaviour . Put differently, 
the due process violation had vitiated the very core  of the Panel's finding that plain packaging 
contributed to the reduction of smoking . And that finding had been , in turn, central to the Panel's 
overall conclusion and to the very outcome of the case . That was as remarkable as it was erroneous . 
10.18.   Second, Honduras welcome d the Appellate Body 's key finding that "the Panel erred in finding 
that the complainants failed to demonstrate that each of the two alternative measures would be apt 
to make a contribution equivalent " to that of the plain packaging measure s. This mean t that the 
Panel had been  wrong in rejecting the two alternatives that Honduras had proposed . The Appellate 
Body had found that these alternatives provided at least an equivalent contribution to the reduction 
of smoking . The Appellate Body had rightly rejected Australia 's "suite of measures " argument that 
sought to shield the plain packaging measures from proper scrutiny because of the alleged synergies 
with other tobacco control measures . It had been confirmed that not one, but two, valid and e ffective 
alternatives existed that could have been pursued by Australia . This was what Honduras ha d been 
stating all along . Unfortunately, however, the Appellate Body had broken with decades of 
jurisprudence that focused on the structure, architecture, and  design of a measure to determine its 
trade restrictiveness . Instead , the Appellate Body  had focused on the trade effects of the measure 
as reflected in a reduction in the volume of sales . Thus, the Appellate Body had  put the complainants 
in a "catch -22" situation in that every alternative measure that was equally effective in reducing 
sales would be rendered invalid because it was also as trade restrictive as plain packaging . This 
made it impossible for the complainan ts to ever come up with a valid alternative measure . That 
could not be correct and reveal ed a legal error that undermine d the Panel's and the Appellate Body 's 
approach to trade restrictiveness . Reducing sales through a predictable, transparent, and 
WTO-consistent tax measure, for example, was by design and structure less trade restrictive than 
intervening in the market in a way that affect ed the very essence of the way in which products 
compete d in the market based on brands . The Australian plain packaging measure had thus created 
uncertainties in the market that went beyond any immediate impact on the volume of sales that 
alternative measures proposed by Honduras had. It was regrettable that the Appellate Body had 
refused to follow its own long -standing jur isprudence to this effect . Moreover, the Appellate Body  
had failed to even begin to offer the "cogent reasons " for doing so . Honduras was thus disappointed 
that the Appellate Body had rejected its claim under Article 2.2 of the TBT Agreement that plain 
packaging was more trade restrictive than necessary . WT/DSB/M/442  
- 27 - 
  10.19.   Third, Honduras was deeply concerned about the findings of the Appellate Body relating to 
the TRIPS Agreement . Honduras believed  that the Appellat e Body had deprived the protection 
guaranteed by the TRIPS Agreement to trademark owners of any practical meaning . In particular, 
the Appellate Body 's finding that special requirements, including a prohibition on use, could  be 
imposed as long as there was a "fair reason " or "reasonable explanation " for doing so, mean t that 
Article 20 was a meaningless provision and that trademarks for any product could  be taken away 
and prohibited without proper justification . This erroneous finding ha d implications for many sectors 
of the economy beyond tobacco and ignore d the importance of trademarks for a well -functioning 
competitive economy . Honduras look ed forward to Australia 's reaction if another Member decide d to 
impose plain packaging on alcoholic beverages and remove d well known trademarks from bottle s of 
beer, wine or spirits based on any "fair reason " for depriving trademark owners of their most valuable 
property. Honduras was thus disappointed to see that the WTO ha d failed to stand up for trade and 
intellectual property protection and ha d failed to acknowledge the negative systemic implications of 
symbolic but ineffective, unlawful and potentially counterpro ductive measures such as plain 
packaging . Honduras recall ed that its WTO challenge had questioned neither the negative health 
effects of smoking nor a WTO Member 's right to enact regulation in order to protect public health . 
Honduras support ed the adoption  of effective measures to reduce smoking that were consistent with 
international law, effective, and not disproportionate.  
10.20.   Honduras w ished  to raise a number of systemic procedural concerns . Honduras  regret ted 
the tone and manner in which the Appellate Body had addressed its claims under Article 11 of the 
DSU. This had been  disconcerting and unjustified as Honduras was entitled to raise the lack of 
objective assessment of the Panel 's treatment of the evidence b efore the Appellate Body, in the light 
of existing jurisprudence and established standards under  Article 11 of the DSU . Nevertheless, the 
Appellate Body had seemed to have made up its mind from the outset that it would not  entertain 
the appellants ' claims under Article 11 of the DSU . This was evident from the fact that the Appellate 
Body had unilaterally changed the agreed dates for the second hearing, which was largely dedicated 
to the claims under Article 11 of the DSU . What a reader of the Appellate Body  Report c ould not 
know was that when the previously set dates for that hearing had been  modified in response to 
requests by other parties, Honduras had shown significant flexibility to accommodate those other 
parties . All that Honduras had requested was th at the new dates be set in a way that would enable 
a key member of the delegation  of Honduras  to attend the hearing in person . However,  when the 
new dates had been  set, they had been  set without any regard for the previously  expressed 
constraints  that the delegation of Honduras  was facing . As a key member of its delegation had been  
unable to attend, Honduras had been  "punished" for having been  flexible and accommodating . It 
was regrettable that the Appellate Body Report d id not even men tion this procedural development . 
10.21.   In addition, the pre -determined nature of the Appellate Body 's position with respect to claims 
based on Article 11 of the DSU had been  expressly confirmed by the public speech given by one 
member of the Appellate Body, Mr Thomas Graham, on 5 March  2020. This was more than 
three  weeks before he had signed the Report and had thus been in the middle of the Appellate Body 's 
deliberations . In making suggestions for a future WTO appellate entity, Mr Graham  had 
recommended "[t]o banish most Article 11 claims on appeal because panels ' fact finding is outside 
the role of the Appellate Body ". He had further observed that "in recent years appellate  litigators 
almost routinely attacked fact -finding by panels as 'not objective '", and had blamed the Appellate 
Body for having too often "indulged them by spending many pages analyzing panels' fact -finding ".34 
It thus appear ed as if Mr Graham 's legal views  about the strength of the legal claim s under Article  11 
of the DSU as presented by Honduras had been  pre-determined by a policy view that there was no 
place for claims under Article 11 of the DSU in the system . It had been  entirely inappropriate to give 
a public speech on a key issue in the appeal pending before him at that time . To conclude, Honduras 
was deeply disappointed with the findings of the Reports  that would be adopt ed at the present 
meeting . This dispute did not deserve this dark procedural cloud that commentators w ould point to . 
Honduras  hope that in the future, the system w ould be able to stand up to the raison d 'être of this 
Organization . 
10.22.   The representative of Australia  said that her country  welcome d the findings of the Appellate 
Body in these disputes , which overwhelmingly dismiss ed the appeals brought by Honduras and the 
Dominican Republic . Australia had been  the first country in the world to introduce tobacco plain 
 
34 Speech of Thomas Graham (former Appellate Body Member) at the Georgetown Law International 
Trade Update, 5 March 2020, p. 13, available at 
https://worldtradelaw.typepad.com/files/t.graham.greenwaldlecture.final_.pdf.  WT/DSB/M/442  
- 28 - 
  packaging, as part of its multifa ceted approach to reducing tobacco use and exposure . Australia had 
implemented tobacco plain packaging in 2012 to prevent the tobacco industry 's well -documented 
exploitation of product and packaging design features to influence consumer behaviour, particul arly 
the behaviour of young people . Australia had done  so on the basis of three decades of expert 
evidence, and an explicit recommendation by the 180 parties to the World Health Organization 
Framework Convention on Tobacco Control . Tobacco plain packaging was a legitimate public health 
measure that fully respect ed Australia's  WTO obligations . The findings of the original Panel, upheld 
by the Appellate Body, had confirm ed this unequivocally.  
10.23.   In response to the statements delivered at the present meeting  by Honduras and the 
Dominican Republic, Australia  trusted Members to understand from their own review of the relevant 
reports the core findings of the Appellate Body and the correct  legal basis of those findings . Australia 
wished to  mention only briefly these key outcomes . Specifically, the Appellate Body had upheld the 
Panel's findings under Article 2.2 of the TBT Agreement and Articles 16.1 and 20 of the TRIPS 
Agreement . The Appellate Body had agreed with the Panel that Honduras an d the 
Dominican  Republic had failed to establish that Australia 's tobacco plain packaging measures were 
inconsistent with WTO rules ; and it had rejected the appellants ' attempts to fundamentally rewrite 
those rules . In reaching this conclusion, the Appella te Body had also overwhelmingly rejected the 
appellants' unprecedented assault on the Panel 's findings of fact . The Appellate Body had found that 
the appellants had failed to demonstrate that the Panel had erred in finding that the tobacco plain 
packaging measures, in combination with Australia 's other tobacco -control measures, were apt to, 
and d id in fact, make a meaningful contribution to Australia 's objective of reducing the use of, and 
exposure to, tobacco products . Australia  welcome d the Appellate Body 's rejection of the appellants' 
attempt to misuse Article 11 of the DSU to re -litigate the bulk of factual issues they had lost before 
the Panel ; and its affirmation of the Panel's discretion as the trier of fact to decide which evidence it 
used in making its findings and the probative value of the evidence.  
10.24.   Australia was  pleased that the Appellate Body 's findings finally br ought  to an end the WTO 
challenges to Australia's legitimate public health measure . However, Australia was  concerned that 
resolving this matter had taken  over eight years of intensive litigation . This delay was especially 
concerning given that, at the outset of  these dispute settlement proceedings, the complainants had 
actively discouraged other Members from adopting similar measures until the dispute had concluded . 
Australia  was heartened by the number of Members that had resisted this pressure and were already  
contributing to improving the public health of their populations by banning the promotion and 
advertising of tobacco products through packaging . Australia  was also concerned by the exceptional 
scale of this dispute . The panel proceedings alone had involve d over 5 ,000 pages of submissions, 
over 1 ,700 exhibits, and over 80 expert reports that spanned complex issues of public health, 
behavioural theory, marketing, and econometrics . The enormity of this evidentiary record had been  
in large part the result of t he litigation approach used to challenge Australia 's measure, and it had 
risked transforming WTO dispute settlement into an endless and expensive "battle of the experts ". 
This dispute clearly highlight ed that Members  needed to redouble their efforts to enhance the 
efficiency of their dispute settlement system – to ensure it fulfil led its objective of "prompt and 
effective" settlement of disputes . The significance of this dispute, given its implications for the 
legitimate policy space provided  in the WTO covered agreements, ha d been well understood by 
Members . This had been  reflected in the largest number of third parties of any WTO dispute to date . 
Australia  wished to thank the third parties for their active engagement during all phases of the se 
long-running proceedings . In welcoming the adoption of the Reports  at the present meeting , 
Australia also wished to thank the Appellate Body and the panelists for their rigorous and 
comprehensive examination of the claims and arguments in these disputes , and the Secretariat for 
its hard work and dedication to this matter.  
10.25.   The representative of Norway  said that his delegation wished  to thank the Appellate Body, 
the Panels and the Secretariat for their tireless work in the se disputes . Norway welcome d the 
adoption of the Panel and Appellate Body Reports  at the present meeting . As repeatedly stressed in 
various fora, public health and tobacco control were topics of particular interest to Norway . Norway  
noted that the Appellate Body confirm ed the Panels ' findings that it was possible for Members to 
introduce standardi zed packaging of tobacco consistent with the WTO Agreement . Norway  recall ed 
that this type of measure was recommended to implement the WHO Framework Convention on 
Tobacco Control, and it was Norway 's firm view that the Framework Convention and the relevant 
WTO Agreements were mutually supportive . Norway was  very pleased to see the conclusion of these 
long-running disputes . Norway  sincerely regret ted that these w ould be  the last Appellate Body  
Reports for the time being.  WT/DSB/M/442  
- 29 - 
  10.26.   The representative of the United States  said that the United States wished to raise an 
important systemic concern under this Agenda item. The documents circulated as WT/DS435/AB/R 
and WT/DS435/AB/R/Add.1, and WT/DS441/AB/R and WT/DS441/AB/R/Add.1 contained discussion 
regarding so -called "due pr ocess" violations by the Panel under Article 11 of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes (DSU). As the United States had 
explained, and Members knew well, Article 17.6 of the DSU limited an appeal "to issues of law 
covered in the panel report and legal interpretations developed by the panel". Attempts by appellants 
to re-litigate unfavourable factual  determinations by panels were not encompassed by the right of 
appeal set out in Article 17.6.35 Neither was appeal of unfavourable factual determinations supported 
by the text of Article 11 of the DSU. This provision did not impose an obligation  on a panel. Rather, 
it recognized that the "function of panels" was that a panel " should  make an objective assessment" 
of the ma tter before it. By describing this function using "should", rather than creating an obligation 
using "shall", WTO Members had further established in the DSU that an alleged failure to make an 
objective assessment would not be subject of an appeal. Furtherm ore, Article 11 of the DSU did not 
include the term "due process". Nevertheless, the complainants in this dispute had brought 
numerous claims of error, including for "due process" violations, under Article 11. Such erroneous 
and unfounded claims of error u nder Article 11 had resulted in significant expenditures of time and 
resources. The parties and third parties had met with the Division for two oral hearings in June and 
November  2019, spanning a total of eight days of hearings. The United States disagreed  with the 
majority's decision in the appellate report to entertain these claims and, remarkably, even accept a 
claim of error. Even aside from there not having been a basis to appeal under DSU Article 11, the 
United States agreed with the separate opinion' s conclusion that it was not "necessary to examine 
in detail the appellants' claims that the Panel erred" and that, in any event, the Panel had not acted 
inconsistently with the original, high standard an Appellate Body report had set out for Article 11 of  
the DSU.36 This appeal had presented a missed opportunity to reconsider the scope of appellate 
review permitted under the DSU . 
10.27.   As the United States had explained in the USTR Report on the Appellate Body37, the DSU 
lacked any textual basis for appellate review of factual findings, irrespective of the standard of review 
to be applied. The Appellate Body's decision to review the "objective assessment" of a panel had 
been seized by appellants to cover practica lly all factual determinations by a panel, as illustrated by 
this monstrous appeal. The extensive experience of the United States as a litigant showed that 
panels took seriously their task to make an objective assessment. In fact, many current or former 
WTO delegates served as panelists, and no doubt took their responsibilities very seriously. To the 
extent that mistakes could happen in the assessment of evidence, Article 15 of the DSU provided 
for an interim review stage to correct these errors. Remarkably , the complainants in this appeal had 
chosen not to avail themselves of that opportunity and work with the Panel to correct any factual 
errors. Instead, they had sought further costly and time -consuming litigation by raising on appeal 
questions of fact tha t were beyond the scope of appellate review. The WTO dispute settlement 
system was not operating as it had been intended, nor should it operate in this manner. This dispute 
underscored the need for real reform in order to restore the proper functioning of the dispute 
settlement system . 
10.28.   In addition to these substantive concerns, the United States consider ed that very serious 
issues were raised by the failure of the Appellate Body to follow the mandatory 90 -day deadline in 
Article 17.5 of the DSU and the continued service on this appeal of all three members of the Division 
who had ceased to be a member of the Appellate Body during the appeal, including with respect to 
the status of such a report . As the docum ent ha d not been issued by three Appellate Body members 
and had not been issued within 90 days, consistent with the requirements of Article 17 of the DSU, 
it was not an "Appellate Body report " under Article 17, and therefore it was not subject to the 
adopt ion procedures reflected in Article 17.14 . The circumstances of this dispute were particularly 
remarkable : the document ha d not been issued by any Appellate Body member and it had been  
issued 691 days after a notice of appeal had been  submitted in the DS43 5 dispute . For this item, 
the United States  did not understand any party to oppose the adoption of the reports, nor ha d any 
 
35 United States Trade Representative, Rep ort on the Appellate Body of the World Trade Organization 
(February 2020), available at https://geneva.usmission.gov/wp -content/uploads/sites/290/AB -
Report_02.11.20.pdf ; Dispute Settlement Body, Minutes of the Meeting Held on August 27, 2018, 
WT/DSB/M/417,  paras. 4.2 -4.17. 
36 Australia – Plain Packaging (AB), para. 6.524.  
37 United States Trade Representative, Report on the Appellate Body of the World Trade Organization 
(February 2020), Sec. II.C, at 37 -47 (available at https://geneva.usmission.gov/wp -
content /uploads/sites/290/AB -Report_02.11.20.pd f). WT/DSB/M/442  
- 30 - 
  other WTO Member raised an objection . The aim of the dispute settlement system was to find a 
positive solution to the dispute . As no party to the dispute ha d objected, the United States  
underst ood that the parties consider ed that adoption of the reports would assist them in finding a 
positive solution . The United States  would seek to support the parties ' interests on this issue . 
Therefore, there was a consensus to adopt the reports before the DSB  at the present meeting . 
10.29.   The representative of New Zealand  said that his country  welcome d the Appellate Body 
Report , which finally resolve d this very long running dispute . New Zealand  wished t o thank all those 
involved . New Zealand participated as a third party in this dispute and w ished to briefly comment 
on the health policy implications of the Reports  that would  be adopted at the present meeting . Like 
Australia and many other Members, New Zealand ha d put in place its own tobacco plain packaging 
measures to help combat the significant health risks associated with tobacco use . The Appellate 
Body Report was  a welcome confirmation of the WTO -consistency  of such measures, and a timely 
affirmation of the right of Members to regulate for legitimate public health objectives . New Zealand 
noted with regret that this w ould be the final Appellate Body Report, for a period, until the Appellate 
Body ha d sufficient  members to hear appeals.  
10.30.   The representative of Indonesia  said that his country  wishe d to express its appreciation to 
the Panel, the A ppellate Body as well as the Secretariat for the hard work and proficiency  on these 
long and most anticipated disputes . The world ha d been looking forward to  the final outcome  of this 
controversial dispute  due to its implications for  public health, intellectual propert y rights  and trade 
restrictiveness . Indonesia w ished  to re-emphasize that it did not question the right of Australia to 
protect public health, including by reducing tobacco consumption . In fact, Indonesia ha d also 
introduced measures which also aimed at discourag ing people for consuming tobacco products , 
e.g., the mandatory display of graphic  image s on tobacco packaging . Indonesia 's participation in 
these disputes as third party had been  due to its substantial interest as well as its grave concern 
over the impact of tobacco plain packaging  measures . As a major producer and exporter of tobacco 
products,  million s of people in Indonesia who we re dependent on this industry for their livelihood 
would potentially be affected by such measure s. Indonesia believe d that tobacco plain packaging  
was more restrictive to trade than necessary to accomplish legitimate health objectives . Such 
legitimate objectives c ould be achieved by implementing other measures with less trade restrictive 
effect s. Indonesia d id not expect that the  conclusions in these disputes w ould be the basis for other  
Members  to implement similar measures to other perfectly legal and legitimate products.  
10.31.   The representative of Turkey  said that a s a third party to this very important dispute, his 
country  wishe d to thank the Appellate Body and the WTO staff for their hard work and tireless efforts . 
Turkey  believe d that the outcome of this dispute was significant and w ould guide the entire 
Membership , especially with regards to the interpretation  and application of Article 2.2 of the TBT 
Agreement and Article 20 of the TRIPS Agreement . From early on in this proce eding , Turkey had 
shared the understanding that measures taken for the control of consumption of tobacco products 
rested upon legitimate public health objectives within the WTO , and that trade measures c ould be 
balanced with public health objectives . In line with this approach and in order to reduce the 
attractiveness of tobacco products and to protect public health, Turkey ha d also introduced 
regulations  of its own that included  plain packaging requirement s. In this respect, Turkey welcome d 
the Appellate Body Report, which had upheld almost all of the Panel's findings and had concluded 
that plain packaging regulations were WTO -consistent . Tobacco plain packaging  measures had been  
found not to be more trade restrictive than necessary to achieve public health objectives, and they 
did not violate any international trademark obligations stipulated in the TRIPS  Agreement , since 
public health objectives justified the relevant restrictions on trademarks . Turkey was also pleased  
that the Reports had confirmed that plain packaging contributed meaningfully to public health 
objectives and implementing Members enjoyed a certain degree of dis cretion in imposing 
encumbrances on the use of trademarks under Article 20 of the TRIPS Agreement, considering their 
public health objectives . Turkey , once again , thank ed the parties, the panels and the Appellate Body 
for their contribution to this dispute . Turkey  hoped that this w ould not be the last Appellate Body 
Report and that the A ppellate Body would soon resume its functions to preserve the rights and 
obligations of Members.  
10.32.   The representative of the European Union  said that his delegation welcome d this Appellate 
Body Report , which close d particularly long proceedings . The EU  support ed the adoption of the 
Report by the DSB . At the present meeting, t he EU w ished  to make two specific comments . First, 
this Report definitely clarifie d that both trade and domestic policies following other objectives c ould 
co-exist. The WTO rules clarified in this case confirm ed that public policies of its Members c ould be WT/DSB/M/442  
- 31 - 
  perfectly compatible with WTO law even if they impose restrict ions on trade or other interests 
protected in principle by the covered agreements . In the present case, the protection of trademarks  
in particular  had been found as not prevailing over the protection of public health . Hence, this 
confirm ed once more, in a high-stake s dispute, that trade and other public interests were not 
mutually exclusive . This Appellate Body Report was a milestone in the world of trade law . The 
Appellate Body Report  recall ed the balance betwee n trade and other public interests and  reinforce d 
WTO rules in terms of their connection with other policy objectives . This could only strengthen the 
credibility of the WTO . Second, this Report would  be the last Appellate Body report for some time,  
as no further such reports were expected in th e short term . Based on this Report, the EU w ished to 
underline  and applaud the importance of the  Appellate Body's contribution to the multilateral, 
rules-based WTO system . The Appellate Body  had shown, once more, how valuable a two -level 
judicial system was. The EU reiterate d its regret that the  appointment of Appellate Body members 
was blocked by and remain ed ready to consider improvements to the Appellate Body in order to 
unblock the current situation . Once more, t he EU  called all Members to take the Ap pellate Body 's 
added value into account and to find a solution to the current crisis . All Members needed a 
well-functioning appeal mechanism  and the  well-functioning WTO  as well as  a multilateral , 
rules-based , system.  
10.33.   The representative of the United Kingdom  said that his country  support ed the right of WTO 
Members to implement important public health initiatives to protect their citizens . The 
United  Kingdom  welcome d the Appellate Body's findings that Australia's tobacco control measures 
were not more t rade-restrictive than necessary . Many countries around the world ha d adopted 
tobacco plain packaging measures, including the United Kingdom as of 2 0 May 2016. Smoking was 
the leading cause of ill -health and early death and a major cause of inequalities in the 
United  Kingdom . In England alone, smoking kill ed around 78,000 people each year and cost the 
National Health Service GBP 2.5 billion . In response, the United Kingdom ha d introduced a range of 
measures to discourage smoking . The United Kingdom had been  the second country in the world  to 
introduce tobacco plain packaging measures . Smoking rates ha d continued to fall since the measures 
had been  implement ed and were currently  at their lowest level of 14.4% in England . The 
United  Kingdom  welcome d the finding that the tobacco plain packaging measures, in combination 
with other measures, contribute d to the objective of reducing the use of and exposure to tobacco 
products, and that these measures were not more trade -restrictive than necessary . The 
United  Kingdom also took note of the Appellate Body's conclusions on the standard of review to be 
applied  to claims under Article 11 of the DSU  and its reminder that Article 11 claims could  not be 
used as a pretext to re -litigate the panel's factual determinations  on appeal . Limiting Appellate Body 
appellate review to matters of law and legal interpretations as required by Article 17.6 of the DSU  
would reduce the scope and duration of appeals and promote procedural efficiency at the DSB.  
10.34.   The representative of Canada  said that i n this dispute involving Australia 's tobacco control 
measures, Canada believed  that the Appellate Body and Panel ha d correctly and appropriately 
preserved the critical balance between the protection of intellectual property rights and trade 
facilitation, and a Member 's right to take legitim ate public health measures under the TRIPS 
Agreement and the TBT Agreement . The findings of the Panel and Appellate Body w ould have 
important systemic consequences for all WTO Members . Canada  welcome d the adoption of these 
Reports . These Reports provide d an important and valuable contribution to the clarification of the 
Members' rights and obligations, in particular with respect to Articles 16.1 and 20 of the TRIPS 
Agreement . The Appellate Body ha d confirmed that Article 16.1 d id not confer upon a trademark  
owner a positive right to use its trademark or a right to protect the distinctiveness of that trademark 
through use . In addition, the Appellate Body 's findings with respect to Article 20 confirm ed that the 
consideration of whether the use of a trademark h ad been "unjustifiably" encumbered should not be 
equated with the necessity test within the meaning of Article XX  of the  GATT or Article 2.2 of the 
TBT Agreement . Canada note d that the Appellate Body had applied the high threshold it ha d followed 
in previous cases for determining whether a panel ha d failed to conduct an objective assessment of 
the matter . Canada  support ed the Appellate Body 's rejection of the appellants ' arguments that had 
simply sought to litigate de novo  the factual cas e before the Panel. 
10.35.   The representative of Singapore  said that , like the previous speakers, his country  welcome d 
the outcome of this Appellate Body  Report and support ed its adoption . This Report had brought this 
dispute to a close after eight long years of litigation , in which Singapore had participated as a 
third party. Singapore  also wish ed to express its appreciation for the Panel  and the Appellate Body 
members  as well as  the Secretariat  staff. WT/DSB/M/442  
- 32 - 
  10.36.   The DSB took note of the statements and adopt ed the Appellate Body Report s contained in 
WT/DS435/AB/R and WT/DS435/AB/R/ Add.1  and the Panel Report contained in WT/DS435/R and 
WT/DS435/R/ Add.1 and WT/DS435/R/ Suppl.1, as upheld by the Appellate Body Report ; the DSB 
took note  of the statements ; and 
10.37.   The DSB took note  of the statements and adopted  the Appellate Body Report contained i n 
in WT/DS441/AB/R and WT/DS441/AB/R/ Add.1  and the Panel Report contained in WT/DS441/R and 
WT/DS441/R/ Add.1 and WT/DS441/R/ Suppl.1, as upheld by the Appellate Body Report . 
11  THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE 
PHILIPPINES  
A. Statement by the Chairman on consultations with Thailand and the Philippines with 
regard to the Recourse to Article 22.2 of the DSU (WT/DS371/32)  
B. Statement by the Philippines  
C. Statement by Thailand  
11.1.   The Chairman  said that u nder the first sub -item, he wished  to make a st atement under his 
own responsibility in order to report to delegations on his consultations with Thailand and the 
Philippines in the "Thailand – Cigarettes (Philippines)"  dispute  (DS371) . His statement was without 
prejudice to the rights and obligations of  the parties to this dispute or of any other Member . He 
recall ed that these consultations had first been conducted by the previous Chair of the DSB, 
Amb.  Walker, prior to the 5 March  2020 DSB meeting . At that meeting, the matter  had been  
suspended in order to allow more time for consultations . Following his appointment as Chair of the 
DSB on 2 0 May 2020, the Chairman had  been consulting with Thailand and the Philippines on this 
matter . He had held virtual intensive consultations with the parties in preparation for the present  
meeting . These consultations were ongoing and therefore it w as not his intention to have a 
discussion on this matter at this stage . He hoped that this  was agreeable to all  Members . 
11.2.   The DSB took note of the statement.  
11.3.   The Chairman  invited the representative of the Philippines to speak.  
11.4.   The representative of the Philippines  said that , at the outset, he wished to take the 
opportunity to congratulate the Chairman on his election and to express his country's appreciation 
for the resumption of the DSB meeting . As a user and a firm believer in the WTO dispute settlement 
system, the Philippines was confident that the Chair's principled leadership would contribute to its 
strengthening and improvement . The Philippi nes thank ed the Chair man for his report as well as for 
providing the Philippines with an opportunity to continue its dialogue with Thailand in a constructive 
spirit through consultations . The Philippines  also wish ed to commend the Chairman for his  continui ng 
efforts to help Thailand and the Philippines  resolve these important and urgent concerns that ha d 
systemic implications for the rights of Members under the DSU . At the 5 March  2020 DSB meeting, 
and during  the Chair-guided consultations, the Chair man had suggested that both parties attempt 
to find a way forward . In this context and with reference to its previous statements contained in 
documents WT/DS371/35  and WT/DS371/37, the Philippines was pleased to inform  Members that 
on 9 March  2020, in a lette r addressed to the Chair man and Thailand, the Philippines had proposed 
that the parties commence discussions to arrive at a constructive solution in order to complete the 
two pending appeals under Article 21.5 of the DSU, including but not limited to proce edings under 
Article 25 of the DSU, Article 22.6 of the DSU, or other hybrid approaches acceptable to all parties, 
or through an agreed level of compensation . The Philippines maintain ed its good faith and openness 
to a time -bound and Chair -guided solution to this situation and await ed any idea s or suggestion s 
from the Chair man and Thailand.  
11.5.   However, the Philippines wished to  emphasize  that while it  remain ed open to a constructive 
solution, as shown by its 9 March  2020 letter, the Philippines maintain ed that it was fully within its 
rights to seek recourse to Article 22.2 of the DSU . The provisions of Article 22.6 of the DSU were 
clear: "[t]he DSB, upon request, shall grant authorization to suspend concessions or other 
obligations within 30 days  of the expiry of the reasonable period of time unless the DSB decides by 
consensus to reject the request "; and "[i]f the Member concerned objects to the level of suspension WT/DSB/M/442  
- 33 - 
  proposed, […] the matter shall be referred to arbitration ". Therefore, there were only two options 
under the reverse -consensus rule of Article 22.6  of the DSU : (i) the DSB  grant ing authorization to 
suspend concessions ; or (ii) the DSB referring the matter to arbitration . At the present meeting, t he 
Philippines d id not insist that the DSB , through the Chairman, grant the authority that the Philippines  
sought , given the good -faith consultations currently being conducted between the Chair man and the 
parties . However, the Philippines' flexibility was finite, and dependent on reaching a prompt and 
constructive way forward . At some point, if no solution was reached, the Philippines  expect ed the 
DSB to act in accordance with the rules. 
11.6.   The DSB took note of the statement  made by the Philippines . 
11.7.   The Chairman  invited the representative of Thailand  to speak.  
11.8.   The representative of Thailand  said that her country wished to  thank the Chairman for his  
involvement in the consultations with the parties in the "Thailand – Cigarettes (Philippines)" dispute 
(DS371) , and for the opportunity to make a statement at the present  meeting . Thailand wished to 
refer to its previous statement made at the 5 March  2020 DSB meeting . For the purpose of the 
present  meeting, Thailand wishe d to reiterate, once again, that any request for suspension of 
concessions under Article 22.2 of the DSU in this dispute would be improper as two compliance 
proceedings under Article 21.5 were not complet ed. The two reports issued by the panel in the 
procee dings under Article 21.5 of the DSU had not been adopted by the DSB . Moreover,  the appeals 
of these reports by Thailand were still ongoing before the Appellate Body . The Sequencing 
Understanding  signed by the parties in this dispute state d that the Philipp ines could request 
retaliation only after the completion of proceedings under Article 21.5, which include d proceedings 
before the Appellate Body in the event  of an appeal . Given that Thailand's appeals ha d not been 
completed, the Philippines c ould not, at this stage, request the suspension of concessions or other 
obligations under Article 22.2 of the DSU . Thailand also wishe d to reiterate that, should the 
Philippines, for whatever reason, take the position that the rules contained in the Sequencing 
Understa nding  were no longer applicable, this would release Thailand of its commitment to not object 
to the Philippines' request as being outside the 30 -day deadline under Article 22.6 of the DSU . 
According to this provision, any request for suspension of concessions had to  be authorized by the 
DSB "within 30 days of the expiry of the reasonable period of time" . As the reasonable period of 
time in this dispute had expired on 1 5 May 2012, the deadline  under Article 22.6  of the DSU  for 
authorizing the suspension of concessions had expired on 1 5 June 2012. 
11.9.   Thailand noted that t he Philippines ha d indicated that, according to the sequencing 
understanding , the parties were under an obligation to find a prom pt solution regarding any 
"procedural aspect" that ar ose concerning the procedures established in that understanding . 
Thailand disagree d with the Philippines' position that the Appellate Body's suspension of its work in 
both appeals constitute d a "procedur al aspect" of the sequencing understanding . Rather, as the 
Philippines ha d previously acknowledged, for example in its communication contained in document 
WT/DS371/32 dated 1 2 February  2020, the Appellate Body had suspended its work due to 
"institutional constraints" as a result of an insufficient number of Appellate Body members . Thailand 
had supported, and continue d to support, efforts to resolve these institutional constraints and 
encourage d all WTO Members, incl uding the Philippines, to do likewise . As Members  knew, the real 
issue was the Appellate Body crisis, not any individual dispute . The Appellate Body crisis ha d imposed 
significant challenges on the rules -based system, including with respect to all pending appeals . The 
Philippines' previous request for suspension of concessions underline d the urgency of resolving the 
problems affecting the Appellate Body as a matter of priority so as to avoid unilateral actions that 
were contrary to Article 23 of the DSU . As Thailand would  discuss under A genda item 15 of the 
present  meeting, Thailand fully support ed the Appellate Body process and urge d Members to move 
ahead with the AB selection process es. As indicated during previous exchanges with the Philippines, 
Thailand remain ed open to a bilateral dialogue with the aim o f identify ing a possible solution to the 
substantive issues in this WTO dispute that was mutually acceptable to both parties.  
11.10.   The DSB took note  of the statement  made by Thailand . 
11.11.   The representative of the European Union  said that t his dispute illustrate d the disruptive 
effects of the paralysis of the Appellate Body on the functioning of the WTO dispute settlement 
system and on the rights of parties in disputes . On the one hand,  the Ph ilippines was entitled , under 
the DSU,  to a binding resolution of the dispute and it was also entitled to ultimately suspend 
concessions or other obligations if the inconsistency persist ed. On the other hand , Thailand  was WT/DSB/M/442  
- 34 - 
  entitled, under the DSU, to an app eal review of the compliance panel report . In these extraordinary 
circumstances, the EU call ed on the parties to seek an agreed solution that would preserve the above 
rights for both parties in a balanced manner . The EU w ished  to point out that the parties could decide 
to submit the suspended appeal for completion under an appeal arbitration procedure pursuant to 
Article 25 of the DSU . Such an appeal arbitration procedure could replicate all substantive and 
procedural aspects o f appellate review . The EU trust ed that Chairman could assist the parties in 
reaching such a solution.  
11.12.   The DSB took note of the statement.  
12  UNITED STATES – COUNTERVAILING MEASURES ON SUPERCALENDERED PAPER FROM 
CANADA  
A. Recourse to Article 22.2 of the DSU b y Canada (WT/DS505/13)  
12.1.   The Chairman  drew attention to the communication from Canada contained in document 
WT/DS505/13 and invite d the representative of Canada to speak.  
12.2.   The representative of Canada  said that f urther to the adoption of the Panel and Appellate 
Body reports in Canada 's favour, Canada was requesting authorization under Article 22.2 of the DSU 
to suspend concessions in this dispute . Canada was making such a request in view of the US failure 
to inform the DSB of its intention in respect of the implementation of the recommendations and 
rulings of the DSB, or to propose a reasonable period of time to comply . Canada  acknowledge d that 
the United States object ed to the level of suspension proposed by Canada and that the matter was, 
therefore , referred to arbitration under Article 22.6  of the DSU . Canada would welcome it if this 
arbitration were to be carried out by the original Panel, as provided for in Article 22.6 of the DSU.  
12.3.   The representative of th e United States  said that on 18  June 2020, Canada had filed a request 
that the DSB authorize Canada to suspend concessions because it considered that the United States 
had failed to comply with the recommendations of the DSB. The United States objected to the 
premise of Canada's request, which was that the DSB had adopted recommendations in this dispute 
on 5 March  2020. As the United States would explain again, the position of the United States was 
that no DSB recommendation had been or could be adopted bec ause there had been no valid 
Appellate Body report, and there had been no consensus for the DSB to adopt the reports. The 
United States had also repeatedly expressed concern that Canada continued to pursue a dispute 
that had no real -world effect on Canadia n exporters – a fact conceded by Canada in its recent 
request. Canada's request asked for authorization based on speculation – that is, related to an 
alleged nullification or impairment that occurred " if the 'ongoing conduct' continues to exist and [ if 
it] applies to exports from Canada in the future ". Canada was unable to even assert that it suffered 
from any nullification or impairment today  because the alleged conduct was not applied to any 
Canadian good. Only one determination in this dispute had involv ed Canada – Supercalendered 
Paper  – and that countervailing duty order had been revoked two years ago. Therefore, Canada 
suffered no nullification or impairment from the alleged measure, nor could it say that the alleged 
measure continued to exist, nor tha t Canada will suffer nullification or impairment in the future. 
Nevertheless – and without prejudice to the US position that no recommendations had been adopted 
by the DSB – by letter dated 26  June 2020, the United States had also objected to the level of 
suspension of concessions or other obligations proposed by Canada. Under Article 22.6 of the DSU, 
the filing of the objection by the United States automatically resulted in the matter being referred 
to arbitration. Article 22.6 did not refer to any decisio n by the DSB, and no decision was therefore 
required or possible. Consequently, because of the US objection under Article 22.6, the matter 
already had been referred to arbitration. Although unnecessary, the DSB could take note of that fact 
and confirm that  it could not therefore consider Canada's request for authorization . 
12.4.   The United States recalled that at the 5  March  2020 DSB meeting, the United States had not 
joined a consensus to adopt the reports put forward. There were multiple reasons why the appella te 
document was not a valid Appellate Body report under Article 17 of the DSU. First, the DSB had 
taken no action to permit two ex -AB members to continue to serve after their terms had expired; 
second , the report had not been issued within 90 days, as required by Article 17.5; and third, one 
person serving was affiliated with the Government of China, and therefore was not a valid memb er 
of the Appellate Body under Article 17.3.38 Indeed, separate from this dispute, on 31  January  2020, 
 
38 See US Statement at the 5 March 2020, DSB Meeting (Agenda Item 8).  WT/DSB/M/442  
- 35 - 
  the United States had informed the WTO Director -General and the DSB Chair by letter of discovered 
information that disqualified a Chinese national, Ms  Zhao, from the Appellate Body. At the 
5 March  2020 DSB meeting, the United States had detailed for Members the evidence demonstrating 
that Ms  Zhao was not "unaffiliated with any government". No information had been presented, either 
before, during, or after the 5 March  2020 DSB meeting that contradicted that evidence. Because of 
Ms Zhao's affiliation with the Government of China, the appellate document was not a valid Appellate 
Body report because it had not been provided and circulated on behalf of three App ellate Body 
members, as required under Article 17.1 of the DSU . 
12.5.   The United States said that a t the 5 March  2020 DSB meeting, Canada had agreed that the 
allegations of Ms Zhao's lack of independence were serious and had stated that they deserve d full 
and im partial consideration . Canada had asserted that the Rules of Conduct addressed such 
situations . The United States agree d with Canada 's apparent concern that Ms Zhao's participation in 
the appeal could  also be inconsistent with the Rules of Conduct . The procedures under the Rules of 
Conduct for the Appellate Body itself to conduct an inquiry were not available in current 
circumstances . However, this d id not mean that no inquiry could  be conducted . To the contrary, in 
general the Rules provide d for the DSB Chair or the Director -General to conduct the relevant inquiry . 
The DSB Chair and Director -General would be natural leaders of such an inquiry given their roles in 
the WTO dispute settlement system and t he trust Members repose d in them . The United States 
noted that the conduct at issue also would have constituted a breach of the obligation in Article 17.3  
of the DSU  to avoid a direct or indirect conflict of interest .39 Ms Zhao was demonstrably connected 
with the Chinese Government, which had a direct interest in this appeal as the "ongoing conduct " 
complained of  related almost exclusively to China .40 This reinforce d the importance of an alternative 
form of ethical inquiry . Therefore, given Canada 's acknowledgement of serious issues of 
independence and impartiality, the United States would support an alternative inquiry under the 
Rules of Conduct . Even aside from the fact that Ms Zhao was not a valid Appellate Body member 
under Article 17.3  of the DSU , such an inquiry would confirm her disqualification from serving on 
the appeal.  
12.6.   The representative of Canada  said that t he DSB had adopted the panel report and the report 
of the Appellate Body in this dispute at its meeting on 5 March  2020. This fact was unquestionable 
and was reflected in the minutes of the DSB meeting for that date . This was consistent with 
Article  17.14 of the DSU , which provide d that Appellate Body reports "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 ". The United States had argued that Canada 's requ est for the 
suspension of concessions was not asking for a specific amount of concessions to be suspended : 
Canada 's request for authorization to suspend concessions relate d to "ongoing conduct " by the 
United States that was not currently being applied to Canada, and would relate to future US 
investigations or administrative reviews of Canadian goods . Canada was therefore not asking for the 
suspension of concessions for a specific amount at this time . Canada 's request s ought  the 
authorization to suspend concessions or other obligations at an annual level commensurate with the 
trade effects of any future countervailing duties on Canadian imports of any given goods that were 
attributable to the US "ongoing conduct " that had been  found to be WTO-inconsistent "as such " in 
this dispute . Canada 's request was based on a formula to ensure that retaliation c ould be exercised 
only if and when the United States applie d its WTO -inconsistent ongoing conduct to imports from 
Canada in the future . This approach had been  applied by the Arbitrator in the "US – Washing 
Machines" dispute (DS464) , for a measure found to be "as such " inconsistent with WTO law.  
12.7.   Canada reiterate d that the fact that an Appellate Body report ha d been circulated after 
90 days did not modify its character as a valid Appellate Body report subject to the negative 
consensus rule for its adoption by the DSB . This was confirmed by previous DSB practice . In this 
particular dispute, Canada  noted that the three Appellate Body members wh o had signed the report 
had done  so within their term, on 10 December  2019. Without taking a position on the merits of the 
allegations concerning Appellate Body member Zhao, any concerns that the U nited States might 
have regarding her impartiality and inde pendence could be raised by the U nited States through the 
 
39 See Article 17.3 of the DSU ("[t]hey [persons serving on the Appellate Body] shall not participate in 
the consideration of any disputes that would create a direct or indirect conflict of interest").  
40 See United States – Countervailing Measures on Supercalendered Paper from Canada (Panel), 
WT/DS505/R, para. 7.295 and Tables 1 -4 (seven of nine proceedings involving China).  WT/DSB/M/442  
- 36 - 
  appropriate mechanism . That mechanism was provided for under the Rules of Conduct of the DSU, 
and it require d that formal allegations be addressed by the Appellate Body.  
12.8.   The representative of China  said that u ndoubtedly, the DSB had adopted the Appellate Body 
report in this dispute  by negative consensus on 5 March  2020. To suggest otherwise was contrary 
to the fact s and lack ed any legal support from the DSU . As China had  explained in detail at the 
5 March  2020 DSB meeting, Dr Zhao Hong met all requirements , including independence , for being 
an Appellate Body member since day one of taking office . Dr Zhao had undergone  a vigorous 
selection process with full disclosure of her employment history and had been appointed unanimously 
by the entire  Membership in 2016 . She was not affiliated with the Government of China and her 
continued involvement with  the Chinese Academy of International Trade and Economic Cooperation 
(CAITEC) d id not jeopardize the independence required for being an Appellate Body member . 
Regrettably, while Dr Zhao's situation remain ed the same, the interests of the United States varie d. 
It was worth noting that prior to  this dispute, no WTO Member including the U nited States ha d ever 
questioned her independence and impartiality . Moreover, at the 1 1 January  2019 DSB meeting , the 
United States had welcomed the adopt ion by the DSB  of the Appellate Body report regarding  
compliance proceedings in the "US — Tuna II (Mex ico)" dispute (DS381) which had ruled in the 
favour of the United States . The United States had  not raise d any concern over Dr Zhao who had 
sat in the division t hat had heard the appeal  in that dispute . China was extremely disappointed with 
the continu ing false US accusations against the independence of the last remaining Appellate Body 
member . Such reckless c onduct  lacked factual support and violate d basic due process requirements . 
China strongly urge d the United  States to stop such dangerous behavio ur. Members expect ed more 
positive contributions from the United States to safeguard and further strengthen the rules -based 
multilateral trading system.  
12.9.   The representative of the European Union  said that his delegation  wished to  refer to its 
position expressed at the 5 March  2020 DSB meeting on this issue . In particular, the European Union 
wished to underline that  there was not a shadow of a doubt that the report was a report of the 
Appellate Body and that it had been adopted in accordance with the rules applicable for the adoption 
of Appellate Body reports under Article 17.14 of the DSU, i.e. , by negative consensus – just as ha d 
been the case for all other Appellate Body reports . The EU recall ed that the rules  and procedures of 
the DSU exclude d the right of any particular WTO Member to block the adoption of panel or Appellate 
Body reports . This was a central feature of the DSU, and a major difference with the dispute 
settlement mechanism that had operated under  the G ATT 1947. Article 17.14 of the DSU was clear : 
"[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 […] ". 
The EU a lso wishe d to point out , once again , that the Rules of Conduct provide d for a procedure to 
be followed by the parties to disputes if they ha d evidence of a material violation of the obligations 
of independence, impartiality or confidentiality or the avoidance of direct or indirect conflicts of 
interest by covered persons which might  impair the integrity, impartiality or confidentiality of the 
dispute settlement mechanism . If this occur red, the parties , at the earliest possible time and on a 
confidential basis, had to submit such evidence to the standing Appellate Body . It shall be  for the 
standing Appellate Body to take any appropriate action af ter having provided a reasonable 
opportunity for the views of the person concerned and  the parties to the dispute to be heard . The 
EU was not aware of whether such procedure ha d been followed in this instance . Therefore, under 
the applicable rules, the EU saw no reason to question the validity of the Appellate Body report for 
the purposes of the adoption procedure under Article 17.14  of the DSU . The EU w ished  to assert 
that in th is dispute  and in view of the request by the United States , the matter had then been 
referred to arbitration by the DSB pursuant to Article 22.6 DSU automatically or by operation of law 
(ipso iure ). 
12.10.   The representative of Japan  said that his country  took note of the statement made by the 
United States regarding Article 17.3 of th e DSU and other Members ' responses . Japan t ook no 
specific position at this point . However, the United States had raised a systemic issue of an extremely 
serious nature which would call into question the very integrity and impartiality of the dispute 
settlement system and, as such, would require WTO Members ' serious attention . Given the nature 
and magnitude of the issue raised, Japan would expect that, as a nominating Member, China would 
provide full explanations on such issues as the relationship between the Chinese government and 
Ms Zhao. Japan w ould closely monitor the situati on and any development that would follow regarding 
this matter.  WT/DSB/M/442  
- 37 - 
  12.11.   The representative of Australia  said that her country  wishe d to confirm its view that the 
Appellate Body report in this dispute had been  adopted validly under the procedures provided in 
Article 17.14 of the DSU . Australia also wishe d to underscore, consistent with its long-standing 
position, the principle of binding adoption of reports by "negative consensus ". Australia  consider ed 
this principle as fundamental to the security and predictability provided by the WTO dispute 
settlement system.  
12.12.   The representative of Mexico  said that her country  wished  to set out its position that during 
the resumed 5 March  2020 DSB meeting, both the panel and the Appellate Body reports in this 
dispute had been  adopted in accordance with the rules applicable under Articles 16.4 and 17.14 of 
the DSU, that is, by negative consensus . Article 17.14 of the DSU clearly state d that: "[a]n Appellate 
Body report shall be adopted by the DSB and unconditionally accepted by the parties unless the DSB 
decides by consensus not to adopt the Appellate Body report ". During the resumed 5 March  2020 
DSB meeting , the DSB had not decided by consensus to not adopt the reports . Therefore, it was 
clear that bo th the panel and Appellate body reports  had been  adopted in accordance with the DSU.  
12.13.   The representative of the United States  said that Canada asserted that the appellate report 
had to have been adopted by negative consensus. But it was evident that not any  document issued 
with the title "Report of the Appellate Body" was such a document. For example, if such a document 
were signed by three members of the Appellate Body Secretariat, no one would seriously argue the 
report had to be adopted by the DSB by nega tive consensus. That was because the alleged "Report" 
would not be consistent with DSU Article 17, which required an appeal to be decided by three 
Appellate Body members.41 In this dispute, the facts had not been seriously contested. First, the 
DSB had tak en no action to permit two ex AB members to continue to serve after their terms expired; 
this was evident from the fact that no such decision had ever been proposed to the DSB. Second, 
the report had not been issued within 90 days, as required by Article 1 7.5; this too had not been 
contested. Third, one Appellate Body member was affiliated with the Government of China; as the 
United States had pointed out, the evidence of affiliation brought forward by the United States had 
not been directly contested. Ther efore, this affiliated person was not a valid member of the Appellate 
Body under Article 17.3. Given that there had been no valid Appellate Body report before the DSB, 
the document could not have been adopted by negative consensus under Article 17.14, as t hat rule 
did not attach to this document. Therefore, the DSB could only adopt the document by positive 
consensus. The United States had made clear at the 5 March 2020 DSB meeting that it objected to 
and did not join a consensus on adoption. As there had be en no consensus for adoption, the DSB 
had not adopted any report in this dispute. Accordingly, there was no recommendation for the United 
States to bring a measure into conformity with a covered agreement . 
12.14.   Regarding Canada’s comments concerning application  of the Rules of Conduct, the United 
States noted that the Rules of Conduct had been agreed by Members in order to help preserve the 
integrity and impartiality of the WTO dispute settlement system. That did not mean that the Rules 
were all that was necessa ry to do so. Rather, first and foremost, it was for WTO Members, and all 
participants in the system, to take responsibility for safeguarding that system. When Canada said 
only the Appellate Body could apply the obligations of impartiality and independence to a person 
serving on an appeal, and therefore the Rules could not currently be applied, Canada would actually 
be using the Rules to undermine the integrity and impartiality of the WTO. If there were valid ethical 
concerns with the service by a person in an appeal, they should be investigated. It would be 
thoroughly inconsistent with US experience and its close relationship with Canada to see it defend 
the behaviour of the Chinese Government official in this dispute. And there was no question that Ms 
Zhao' s professional connections with the Government of China raised serious concerns. For instance, 
given Ms Zhao's professional connections with the Government of China, her participation in the 
appeal was not consistent with the obligations to be "independent  and impartial" and "avoid direct 
or indirect conflicts of interest", provided for in paragraph II:1 of the Rules of Conduct.42  Therefore, 
the United States looked forward to further conversations with Canada to find a shared approach 
through which they could maintain the integrity and impartiality of WTO dispute settlement . 
 
41 Article 17.1 of the DSU ("[t]he Appellate Body shall hear appeals from panel cases. It shall be 
composed of seven persons, three of whom shall serve on any one case").  
42 Rules of Conduct, Section II ("Governing Principle"), para. 1 ("[e]ach person covered by these Rules 
… shall be independent and impartial [and] shall avoid direct or indirect conflicts of interest ... so that through 
the observance of such standards of conduct the integrity and impartiality of that mechanism are preserved").  WT/DSB/M/442  
- 38 - 
  12.15.   The United States noted that at the 5 March 2020 DSB meeting and again at the present 
meeting, China had responded to the evidence explained by the United States. Importantly, and 
revealingly, China had not denied the following: Ms Zhao served as Vice President of MOFCOM AITEC; 
Ms Zhao received or had receiv ed a salary for her position of Vice President; MOFCOM AITEC was 
an "affiliated" entity "subordinate" to MOFCOM; MOFCOM AITEC's budget was part of MOFCOM's 
budget, such that the salary for Ms. Zhao’s Vice President position at MOFCOM -AITEC was funded 
by th e Government of the People’s Republic of China. The fact that China had not denied these 
statements or asserted that they were incorrect only confirmed that Ms Zhao was affiliated with the 
Government of China and was therefore not a valid member of the App ellate Body . 
12.16.   The representative of China  said that his country was  surprised that the United States ha d 
repeatedly raised this issue  again and again . His delegation  wished to avoid  repeat ing all the points 
of China's  statements made at the 5 March  2020 DSB meeting . However, China noted that it  had 
refuted and rejected all points raised by the United States . Dr Zhao Hong was not affiliated with the 
Chinese government . And the Chinese Academy of International Trade and Economic Cooperation 
(CAITEC) was not part of MOFCOM ( the Ministry of Commerce of China) . It was an independent think 
tank. Therefore,  Ms Zhao was not affiliated with the Chinese government . Again, China wished  to 
emphasize that it could not accept the inquiries from the United States at the present meeting . China 
noted that some other Members had also point ed out that accusations from the United States ha d 
already violated various WTO rules , including the Rules of Conduct . Also, it was the United States 
who blocked the AB selection process es. Therefore, the United States should bear all liabilities of the 
current paralysis of the Appellate Body . China urged the United States to stop such behavio ur and 
take steps to contribute to an d safeguard the multilateral trading system.  
12.17.   The DSB took note of the statements and that the matter raised by the United States in 
document WT/DS505/14 has been referred to arbitration, as required by Article 22.6 of the DSU.  
13  MULTI -PARTY INTERIM APPEAL AR BITRATION ARRANGEMENT PURSUANT TO 
ARTICLE  25 OF THE DSU (JOB/DSB/1/ADD.12)  
A. Statements by the MPIA Participating Parties  
13.1.   The Chairman  said that t his item was on the Agenda of t he present  meeting at the 
joint request of : Australia ; Brazil; Canada ; Chile; China; Colombia ; Costa Rica ; Ecuador ; 
the European Union ; Guatemala ; Hong Kong, China ; Iceland ; Mexico; New Zealand ; Nicaragua ; 
Norway ; Pakistan ; Singapore ; Switzerland ; Ukraine ; and Uruguay . He then  invited  delegations who 
wished to make statements under this Agenda item  to speak . 
13.2.   The representative of the European Union  said that the EU  would make a statement on behalf 
of the 21 Members referred to  by the Chairman . The EU said that s ince December  2019, the 
Appellate Body ha d been unable to function, due to an insufficient number of its members . Against 
this backdrop, on 3 0 April 2020, a group of Members had communicated to the DSB the Multi -Party 
Interim Appeal Arbitration Arrangement , pursuant to Article 25 of the DSU (known  as the MPIA) . 
Thus far, 21 Members ha d endorsed this arrangement . With the communication of the MPIA on 
30 April 2020, and with this statement, the Members participating in the MPIA wish ed to ensure 
maximum clarity and transparency towards the rest of the  Membership as to how, in the very specific 
situation where the Appellate Body was unable to function, MPIA participating Members  intend ed to 
deal with disputes among  themselves . As its full name confirm ed, the MPIA was an interim 
arrangement, designed to remain in place only until a lasting improvement to the Appellate Body 
situation was found . The MPIA  was not meant to "reform " the dispute settlement process . This 
interim arrangement was intended to operate within the WTO framework, on the basis of Article 25 
of the DSU . Article 25 of the DSU require d parties envisaging "arbitration within the WTO " to "agree 
on the procedures to be followed ". The MPIA was in essence a political commitment to conclude 
appeal arbitration agreements in accordance with A rticle 25 of the DSU in disputes among 
participating Members . The MPIA would be  put in to practice in specific disputes through individual 
arbitration agreements based on the model contained in the communication of 3 0 April 2020. 
Procedures under these agre ements were based on those of appellate review, as agreed to by all 
WTO Members in Article 17 of the DSU . The intention was to preserve, in disputes among Members 
participating in the MPIA, a functioning and two -step dispute settlement process, as envisage d by 
the DSU . This ensure d that a positive solution c ould be secured in such disputes in line with 
Article  3.7 of the DSU.  WT/DSB/M/442  
- 39 - 
  13.3.   The EU noted that, c onsequently, the main features of the MPIA were as follows . The MPIA 
applie d to all disputes between participating Members, except those where the interim panel report 
had already been issued by the date of the MPIA communication or by the date of its endorsement 
by a new participant . However, this d id not preclude Members from re sorting to the model arbitration 
agreement for more advanced disputes . Participants undert ook to conclude an arbitration agreement 
and to notify it pursuant to Article 25.2 of the DSU within a specified time limit . Panel proceedings 
took place as usual . Towards the very end of the panel proceeding, any party could  request the 
suspension of the panel proceedings, with a view to submitting the final panel report to appeal 
arbitration under Article 25 of the DSU . If neither party appeal ed under this appeal arb itration 
procedure, the panel report was circulated and adopted by the DSB in the usual way . In particular, 
the parties agree d not to appeal before the non -operational Appellate Body . Therefore, the MPIA 
also preserve d the possibility of a binding resolution of disputes at the panel stage, if no party chos e 
to appeal under the MPIA . If there was an appeal under Article 25 of the DSU, the task of appeal 
arbitrators w ould be to review issues of law raised by the parties c oncerning the panel report . 
Arbitrators could  only address the issues necessary to resolve the dispute . Reflecting Article 3.2 of 
the DSU, and as reaffirmed in the MPIA, arbitration awards "cannot add to or diminish the rights 
and obligations provided in t he covered agreements ". Appeals covered by the MPIA w ould be dealt 
with by three arbitrators selected randomly from a pool of 10 standing arbitrators . The pool of 
arbitrators w ould be made up of persons of recognized authority and demonstrated expertise . The 
participating Members were currently in the process of establishing this pool, with a view to ensuring 
that it comprise d only persons of the highest calibre . The arbitration award w ould be final and binding 
on the parties . In accordance with Article 25 of the DSU, Articles 21 and 22 of the DSU w ould apply 
to arbitration awards, which were to be notified to the D SB. Third parties, irrespective of whether 
they ha d endorsed the MPIA, would  be able to participate in appellate proceedings under the MPIA 
to the same extent as they currently could. To a large extent, arbitration in cases covered by the 
MPIA were governed, with any necessary adjustment for context, by the provisions of the DSU and 
other rules and procedures applicable to appellate review under the DSU . The MPIA arbitration 
agreement ke pt the core features of appellate review, including independence and impartiality . At 
the same time, the model MPIA arbitration agreement contain ed some procedural innovations that 
were intended to enhance th e procedural efficiency of the proceedings in the specific context of 
arbitration under Article 25 of the DSU. 
13.4.   The EU said that a fter this general introduction to the MPIA, the EU  wished to reiterate that 
its clear priority was to find a lasting improvemen t to the WTO Appellate Body situation . The EU  
remain ed fully committed to working with the entire  WTO Membership to achieve this . The EU  
believe d that a properly functioning WTO dispute settlement system was of crucial importance for 
rules-based internatio nal trade, and that an impartial appeal stage had to  continue to be one of its 
essential features . In the meantime, it was the wish of Participating Members , and also  their 
obligation vis-à-vis their respective constituents, to preserve their WTO rights on an interim basis 
through such an arrangement . The MPIA intend ed to achieve no more and no less than this . It did 
not reduce the rights of, nor create new obligations for, non -participating Members . The MPIA 
allowed participating Members to preserve both their right to an appeal review of panel reports and 
their right to a binding positive solution to disputes through adjudication in accordance with the 
DSU. The very existence of the MPIA reinforce d the stability of the rules -based trading system . As 
already mentioned, the MPIA was put in to practice in specific disputes through arbitration 
agreements pursuant to Article 25 of the DSU . Proceedings under such agreements f ell to be 
supported by the WTO Se cretariat and financed from the WTO budget, as any other dispute 
settlement proceedings in accordance with the DSU were. It was for the WTO Director -General to 
decide how to organi ze support for arbitration procedures under Article 25 of the DSU . The Members 
participating in the MPIA envisage d in this regard a separation from the support provided to the 
work of panels in order to ensure impartiality and avoid potential conflicts of interest in individual 
appeal cases . Openness and inclusion were import ant aspects of the MPIA . It provide d that any 
Member could  join at any time, by notification to the DSB that it endorse d the MPIA communication . 
Even more importantly, the EU  urged all Members to work together, with energy and commitment, 
to achieve an imp rovement to the Appellate Body system and to launch the AB selection processes 
as soon as possible, so that the contingency measure that was the MPIA would soon be no longer 
required.  
13.5.   The representative of China  said that his country  support ed the statement made by the EU 
on behalf of all MPIA participating Members . China wished  to make  several additional points in order 
to further clarify the intent, nature and operation of the MPIA . First, China wished to  clarify that the 
MPIA had been  initiated by the EU . Twenty other WTO Members , including China , had  shared the WT/DSB/M/442  
- 40 - 
  EU's views, had joined the initiative, had participa ted in the negotiation s and had endorsed the 
arrangement . Those WTO Members  accept ed, appreciate d and support ed the EU's leadership . 
Whether a Member p articipate d in the MPIA or not, it should respect the EU 's MPIA initiative . Any 
expression about the composition of the MPIA , which put any other Member 's name side by side 
with the EU was not correct . Second, participants env isaged that the MPIA would  promote 
consistency and coherence in the interpretation of the covered agreements so as to enhance public 
confidence in the dispute settlement system and to provide security and predictability to the 
multilateral trading system . However, this d id not mean there was precedent in the MPIA . The MPIA  
could not add to nor diminish the rights and obligations provided for in the covered agreements . 
Third, Article 25.2 of the DSU grant ed Members broad discretion in deciding arbitr ation procedures 
for disputes among themselves . By establishing the MPIA procedures based on appellate procedures 
and practices, participants had exercised such discretion which only appl ied to disputes among 
themselves and w ould in no way impact any non -participant . The MPIA reflect ed a collective 
dedication to ensure a two-tier, independent and impartial dispute settlement system . China 
expect ed that the MPIA would  serve its limited , but unique purpose during the unprecedented crisis 
of the Appellate Body . China welcome d more Members to join this mechanism.  
13.6.   The representative of Hong Kong, China  said that his delegation  fully endorse d the 
communication by MPIA participants contained i n document JOB/DSB/1/Add.12 circulated  on 
30 April 2020 and the joint statement made  by the E U on behalf of all MPIA participants under this 
Agenda item . The joint statement and the communication highlight ed participating Members' 
commitment to preserving a functioning dispute settlement system in the WTO with binding 
decisions, as well as  independent and impartial appellate reviews where necessary . The current crisis 
in the Appellate Body was a significant  challenge that all WTO Me mbers faced . While Hong Kong, 
China was committed to working with other Members to find a long -term solution as a matter of 
priority, an interim arrangement that was consistent with the provisions in the DSU was necessary 
to preserve the rights and obligat ions of WTO Members and to enable  the continued operation of  
their rules-based multilateral trading system . The joint statement delivered by the EU ha d outlined 
the main features of the MPIA and had noted  that the MPIA was developed on the basis of Article 25 
of the DSU which provide d for the use of arbitration within the WTO as an alternative means of 
dispute settlement . The MPIA itself was a contingency measure . It did not aim to replace the 
Appellate Body nor would it prejudice Members ' positions in their future discussions to resolve the 
Appellate Body  crisis. Hong Kong, China  encourage d other WTO Members who endorse d the 
principles set out in the MPIA to consider joining this interim arrangement . The more participants 
joined the MPIA, the more us eful this interim arrangement would be in preserving the dispute 
settlement pillar of the WTO, and in demonstrating the Member's  commitment to ensuring certainty 
and stability in the rules -based multilateral trading system.  
13.7.   The representative of Guatemala  said that his country was  one of the participating Members 
in the MPIA , pursuant to Article 25 of the  DSU. Guatemala wished to  thank the EU for its statement 
made on behalf of the participating Members  under this Agenda item . Guatemala consider ed it 
important to highlight various aspects of the MPIA . Guatemala said that t he MPIA, with its 
advantag es and its limitations, ha d the merit of being the result of the cooperation and pragmatism 
of its participating Members  that value d and defend ed a rules -based multilateral trading system . 
The MPIA ha d been made possible thanks to the political will and flexibility of its negotiating parties . 
This was an excellent example of the Members ' ability to conclude mutually beneficial agreemen ts 
when they share d the same objective . Moreover, it was worth noting that the participating Members 
formed a very diverse group and included developing countries, developed countries, Members with 
varying legal traditions, Members that were frequent users of the dispute settlement system and 
also infrequent users and non -users thereof . Notwithstanding this diversity, it ha d been 
demonstrated that with political will and flexibility, it was possible to reach understandings and 
agreements in a very short period of  time. Guatemala consider ed that with the same political will 
and flexibility, Members should be able to find a solution to the Appellate Body impasse very quickly . 
As had already been mentioned at the present meeting , the MPIA was open to all Members . Adhering 
to the MPIA was extremely simple . This instrument was not reserved only to the users of the dispute 
settlement system . On the contrary, the MPIA aim ed at preserving the fundamental characteristics 
on which the m ultilateral rules -based system rest ed. Members had a shared responsibility  in 
preserv ing these characteristics . It was also necessary to underline that the negotiation of, 
adherence to and the subsequent operationalization of the MPIA  rested on good faith principles . 
Therefore, the decision to adhere to the MPIA should not be a tactical one nor should it take into 
consideration the existence of ongoing or potential disputes . Guatemala wishe d to reiterate its WT/DSB/M/442  
- 41 - 
  ongoing commitment to finding  solutions that would allow for the prompt re -establishment of the 
Appellate Body.  
13.8.   The representative of Japan  said that his country took  note of the statement made by the 
MPIA participating Members . Japan share d the sense of urgency towards an expeditious reform of 
the WTO dispute settlement system . Japan appreciate d the effort made by the EU and other MPIA 
participating Members . Japan's  priority remain ed to reform the WTO dispute settlement system in a 
manner th at would serve to achieve a long -lasting solution to the Appellate Body matter . Japan 
recognize d the need for a stopgap  measure to secure a positive and prompt solution to pending 
disputes . The MPIA was relevant in that context . However, any attempt to ado pt measures of a 
provisional nature had to  serve the ultimate purpose of finding a long -lasting solution to the 
Appellate Body matter . Japan ha d not participated in the MPIA because it was  not certain if this 
arrangement serve d that ultimate purpose . In this regard, Japan  consider ed it necessary that 
Members p ay close attention to the actual operation of the MPIA . As an arrangement within the 
multilateral system, the MPIA should be implemented in a fair and transparent manner and sho uld 
be consistent with the relevant WTO rules , including financial regulations . Article 25  of the DSU , 
which the MPIA relie d on, provides for ad hoc  arbitration procedures as an alternative means of 
dispute settlement . It was Japan 's position that it would  observe, in this respect, whether  the MPIA 
would entrust  the Secretariat with the operational work within what Article 25 of the DSU intend ed 
in relation to the Secretariat . If necessary, Japan w ould present its view s at an appropriate time  
within this Organization . Japan would request that the MPIA participants ensur e full transparency, 
including regarding their use of WTO resources, to ward the entire WTO Membership.  
13.9.   The representative of South Africa  said that her  delegation w ished  to than k the proponents 
for their statement explaining the communication contained in document JOB/DSB/1/Add.12 . 
South Africa  reiterate d its support for a two -tier dispute settlement system administered by the DSB 
under the auspices of the DSU . The priority of the Membership had to  be to overcome the impasse 
in the AB selection  processes . The lack of an effective dispute settlement system ha d serious 
consequences for future rule -making efforts in the WTO , as the value of the negotiated outcomes 
depended on the ability of signatories to enforce them . Members ha d wide flexibility and discretion 
to settle disputes among themselves, including through arbitration under Article 25 of the DSU . 
However, Members  should note the specific language used in Art icle 25  of the DSU . It allow ed 
Members to facilitate the solution of certain disputes that concern ed issues that were clearly defined 
by both parties . The use of the wording "certain disputes" should already alert Members  that this 
mechanism was not suitable to solve every kind of dispute between Members . When this provision 
had been  crafted, the intention of Members could not have been to authorize the d ispute appeal 
function or the multilateral oversight function of the DSB to be supplanted by decisions of arbitrators . 
A clear indication of this thinking was the reference to Articles 21 and 22 of the DSU in 
sub-paragraph  4 of Article 25 . A condition prec edent for the operation of these provisions was the 
existence of the recommendations and rulings of the DSB . From this perspective, the notified MPIA 
did not provide for multilateral oversight by the DSB . A final and binding arbitral award was merely 
notified but not adopted by the DSB . South Africa asked the proponents whether they could indicate 
if this was consistent with the provisions of the DSU and whether it constitute d an amendment to 
the DSU . South Africa  maintain ed that any amendment to the D SU could only be initiated through 
Article X of the Marrakesh Agreement and require d agreement from Members . The uneasiness of 
South Africa  was that the MPIA might  become the default system to deal with appeals in the absence 
of a function ing Appellate Bod y and might thus become permanent , contrary to its stated objective . 
While noting the commitment of the participating Members to resolving the Appellate Body impasse , 
South Africa  remained concerned about whether the MPIA w ould not divert attention from the 
multilateral process to find a solution to the Appellate Body impasse . Fundamentally, South Africa 
was concerned about what this meant for the joint proposal contained  in document 
WT/DSB/W/609/Rev.18, supported by the majorit y of WTO Members, which aimed at launching the 
AB selection processes as soon as possible to fill the vacancies that existed in the Appellate Body . 
South Africa believed that the MPIA was yet another plurilateral agreement , which would fragment 
and disrupt  larger multilateral processes and consensus in this Organization.  
13.10.   South Africa  also wished to ask the proponents of the MPIA how they envisage d the 
unadopted arbitral awards to be treated by WTO Members . Furthermore, it was with interest that 
South Africa  read paragraph 7 of the MPIA communication in which  proponents state d the following : 
"the participating Members envisage that the support structure will be entirely separate from the 
WTO Secretariat staff and its divisio ns supporting the panels and be answerable regarding the 
substance of their work only to appeal arbitrators . The participating Members request the D irector WT/DSB/M/442  
- 42 - 
  General  to ensure the availability of a support structure meeting these criteria" . South Africa aske d 
the MPIA proponents whether they could explain the basis for the separate support envisaged, its 
implications for the broader Membership, as well as indications of additional support not related to 
the normal budget allocated to dispute settlement . South Africa  also f ound it interesting that the 
innovations of the MPIA text largely ignore d developing -country issues  that ha d been pursued under  
the DSB Special Session . South Africa asked the MPIA proponents whether they could explain why 
no provision ha d been made for special and differential treatment . In conclusion, South Africa  was 
assessing the impl ications of the MPIA in relation to : (i) its impact on the dispute settlement system 
and the possible fragmentation of the system ; (ii) the rights and obligations of Members under the 
DSU; (iii) what this mean t for the long -standing concerns raised by the African Group in relation to 
representation, cost and accessibility ; (iv) the impact of arbitral awards on the broader Membership 
in view of the lack of multilateral oversight ; and (v)  whether the MPIA d id not inadvertently expose 
developing countries in particular to power dynamics in the resolution of trade disputes which could  
result in second -best outcomes, including unauthorized retaliation.  
13.11.   The representative of the United States  said that the United States did not object to WTO 
Members utilizing Article 25 or other informal procedures to help resolve disputes. Indeed, the United 
States had had discussions with a number of Members regarding alternatives to the traditional WTO 
dispute settlement system. In agreeing to the Understanding on Rules and Procedures Governing 
the Settlement of Disputes (DSU), WTO Members had explicitly set out the purpose of WTO dispute 
settlement: "The aim of the dispute settlement mechanism is to secure a positive solution to a 
dispute".43 If any Member considered that use of the arbitration provision in Article 25 might assist 
it in securing such a positive solution, the United States in principle supported such efforts. The 
United States objected, however, to any arrangement that would pe rpetuate the failings of the 
Appellate Body, which the United States had catalogued in detail.44  The arrangement that Members 
were discussing under this Agenda item incorporated and exacerbated some of the worst aspects of 
the Appellate Body's practices. For example, the arrangement weakened the mandatory deadline for 
appellate reports; contemplated appellate review of panel findings of fact; and failed to reflect the 
limitation on appellate review to those findings that would assist the DSB in recommendin g to a 
Member to bring a WTO inconsistent measure into conformity with WTO rules. The arrangement also 
promoted the use of precedent by identifying "consistency" (regardless of correctness) as a guiding 
principle for decisions. The phrase "consistency and coherence in decision -making" did not appear 
anywhere in the DSU, but the arrangement made such "consistency and coherence" in decision 
making an explicit objective for different arbitrators in different disputes and then proposed 
procedures to facilitate this objective. Arbitrators were thus encouraged to create a body of law 
through litigation, rather than to focus on assisting the parties in securing a positive solution to a 
dispute. The numerous departures from the DSU highlighted that at least some Mem bers preferred 
an appellate "court" with expansive powers, instead of the more narrow appellate review envisioned 
by Members in the DSU. In addition, through the selection process, the arrangement sought to 
imbue itself with WTO authority, which it did not  have. The introduction of a comprehensive set of 
documents to deal with perhaps two or three disputes over the next few years suggested that the 
real goal of the arrangement for some participants was not to help the participants resolve disputes 
but to cr eate an ersatz Appellate Body that would serve as a model for any future WTO Appellate 
Body.45 In sum, rather than work towards meaningful reform, some Members had re directed the 
focus and energies of the Membership to pursue an arrangement that would, at  best, perpetuate the 
failings of the Appellate Body. The United States did not support such an effort and did not view it 
as contributing to reform of the dispute settlement system so that it supported the WTO's critical 
negotiating and monitoring functio ns and did not undermine those functions by overreaching and 
gap filling . 
13.12.   The DSB took note of the statements.  
 
43 Article 3.7 o f the DSU.  
44 United States Trade Representative, Report on the Appellate Body of the World Trade Organization 
(February 2020), available at https://geneva.usmission.gov/wp -content/uploads/sites/290/AB -
Report_02.11.20.pdf ; Statement by the United States Con cerning Matters Related to the Functioning of the 
Appellate Body, Meeting of the General Council on December 9 2019, available at 
https://geneva.usmission.gov/2019/12/09/ambassador -shea-statement -at-the-wto-general -council -meeting/ ; 
Statement by the United  States Concerning Appellate Body Appointments, Meeting of the Dispute Settlement 
Body on June 24, 2019, available at https://geneva.usmission.gov/wp -
content/uploads/sites/290/Jun24.DSB_.Stmt_.as -deliv.fin_.public.pdf . 
45 Since 2015, there have only been fo ur appeals in disputes between participating Members.  WT/DSB/M/442  
- 43 - 
  14  SYSTEMIC ISSUE OF THE LACK OF REMEDY TO THE BREACH OF CONFIDENTIALITY IN 
WTO DISPUTE SETTLEMENT PROCEEDINGS  
A. Communication from the Kingdom of Saudi Arabia (WT/DSB/COM/9)  
14.1.   The Chairman  said that t his item was on the Agenda of the present  meeting at the request of 
the Kingdom of Saudi Arabia . In this regard, he drew attention to document WT/DSB/COM/ 9 and  
invite d the representative of the Kingdom of Saudi Arabia to speak.  
14.2.   The representative of the Kingdom of Saudi Arabia  said that Saudi Arabia regret ted that it 
had been  necessary to place this item on the DSB's A genda . However, Saudi Arabia believe d that in 
the future , no other WTO Member should be left  without a remedy to violations of clear rules in WTO 
dispute settlement proceedings, especially in a manner that could affect a Member 's essential 
national security interests . Therefore, Saudi Arabia  was obliged to bring this matter to the attention 
of the Membership . Saudi Arabia wished to  confirm that it was  not raising this item in connection 
with the "Saudi Arabia – Protection of IPR" dispute (DS567 ) in which the Panel had recently issued 
its report. In fact, Saudi Arabia was generally pleased with the outcome in that dispute . More 
particularly, Saudi Arabia  welcome d the Panel 's complete vindication of its security exception 
defen ce under Article 73 of the TRIPS Agreement . Regarding damage incurred by  Saudi Arabia out 
of a breach of confidentiality rules and the lack of a remedy – that issue , unfortunately,  amounted 
to water under the bridge, at least as far as the "Saudi Arabia – Protection of IPR" dispute (DS567)  
was concer ned. However, Saudi Arabia reserve d its rights with respect to bringing a separate WTO 
complaint regarding the violation of confidentiality rules . As context for th is Agenda item, 
Saudi  Arabia wished  to provide background information on the real dispute be tween Saudi Arabia 
and Qatar.  
14.3.   For several years, a sensitive national security situation ha d existed between several WTO 
Members , including Saudi Arabia, and Qatar . Since June 2017, Saudi Arabia and other Members ha d 
severed all diplomatic and consular relations with Qatar in response to Qatar 's continuing support 
for terrorism and extremism . In the "Saudi Arabia – Protection of IPR" dispute (DS567) , the Panel 
had explicitly agreed with Saudi Arabia that a Member 's severance of all relations with another 
Member could be regarded as "the ultimate State expression of the existence of an emergency in 
international relations ".46 For Saudi Arabia, as for other WTO Members, nothing matter ed more than 
the safety and security of its territory and its people . Protecting Saudi Arabia 's national security had 
been the main goal that had mattered in this dispute . Indeed, Saudi Arabia had stated on the 
first page of its first written submission to the Panel : "[t]he severance of relations between the 
two countries and the publicly -stated reasons for the measures of Saudi Arabia constitute the only 
relevant facts in this dispute ". 
14.4.   In its Report, the Panel had ruled that : "Saudi Arabia 's severance of all diplomatic, consular 
and eco nomic ties with Qatar, viewed in the context of similar actions taken by several other nations 
and the relevant history recounted in this Report, falls into the category of cases in which such action 
can be characterized in terms of an exceptional and seri ous crisis in the relations between two or 
more States" .47 Qatar ha d continued to deny the seriousness of its support for terrorism and 
extremism . However, in this case, the Panel had rejected Qatar 's attempts to down -play the 
seriousness of the situation,  ruling that : "in the light of the reasons advanced by Saudi Arabia for 
its actions, the Panel does not accept Qatar 's view that the events culminating in the severance of 
relations can be characterized as a 'mere political or economic ' dispute ".48 Of direct relevance to the 
discussion under this Agenda item , the Panel had states, in paragraph 7.268 of its Report : "[t]he 
Panel has found, on the basis of the facts in this dispute, that an 'emergency in international 
relations ' exists in this case ". Based on the prevailing emergency in international relations, the Panel 
had found that Saudi Arabia 's invocation of the security exception under Article 73 of the TRIPS 
Agreement in the dispute had been  justified . Saudi Arabia noted  that, should Members b e interested 
in reading the full background to the real dispute, the Executive Summary of Saudi Arabia 's 
submissions, attached to the Panel Report, was dedicated to the defen ce of its national security 
interests . Paragraphs 1 through 48 provide d details of the  national security situation that had been 
 
46 Panel Report, Saudi Arabia — Measures concerning the Protection of Intellectual Property Rights, 
WT/DS/567/R (16 June 2020) ("Panel Report"), para. 7.259.  
47 Panel Report, para. 7.262.  
48 Panel Report, para. 7.263.  WT/DSB/M/442  
- 44 - 
  summarized at the present meeting , and paragraphs 49 through 93 provide d information in response 
to questions from the Panel on Saudi Arabia 's good faith invocation of the security exception.  
14.5.   Saudi Arabia wished to review,  for purposes of this  item, the points that were set out in 
document WT/DSB/COM/9 dated 16 June 2020. This communication had been circulated on  the 
same da te as the date on which the Panel Report in the "Saudi Arabia – Protection of IPR" d ispute 
(DS567) had been  circulated and  had become public . In short, on 26 May 2020, confidential 
information regarding the Panel 's uncirculated Report had been  disclosed and published in violation 
of the WTO DSU, the Working Procedures of the Panel, and ex plicit instructions f rom the Panel that 
were set out in the cover letter that had accompanied  the Report when transmitted to the parties . 
The breach had included both distorted information and patently false information that had no basis 
in the Panel Report . Although the published confidential information had falsely represented findings 
of the Panel, Saudi Arabia had been  unable to rebut the false narrative without disclosing the actual 
findings of the Panel, which would have violated WTO confidential ity rules . The day after the breach 
of confidentiality had taken  place, on 27 May 2020, Saudi Arabia had immediately brought this 
violation to the attention of the Panel and had requested that the Panel provide a limited exception 
to the confidentiality ru les so as to allow Saudi Arabia to publicly correct the malicious 
misrepresentation of the Panel's findings . However, the Panel had refused . When the truth did come 
out with the circulation of the Panel Report on  16 June 2020, the goal of the disclosure ha d been 
achieved in the press : the damage had already been done and the news cycle had moved on, having 
left false first impressions of the ruling that were extremely difficult to correct . Therefore , on 
16 June 2020, 21 days – and 21 news cycles – after the breach of confidentiality, Saudi Arabia's 
communication  had been circulated and this issue had transitioned from being dispute -specific to 
being  systemic . 
14.6.   As a systemic issue, and without reference to a particular  case, Saudi Arabia wished  to ground 
this discussion into a systemic context by setting out a factual hypothetical case for the Membership 
to consider : (i) a geopolitical dispute involving WTO security exceptions was pending, or the Final 
Report had been  released to the parties, and remain ed subject to DSU confidentiality rules ; 
(ii) confidential information concerning the panel ruling in the dispute had been  released to the press 
in violation of WTO rules ; (iii) the facts surrounding the confidentiality breach provided to the panel 
establish ed that a party had been  responsible for the breach based on the applicable evidentiary 
standard, with direct evidence or on the basis of "inferences and circumstantial evidence "49; 
(iv) hypothetical facts before the Panel could include : the press report at issue confirm ed that a 
specific business association with a publicly -stated interest in the dispute had provided the 
confidential information ; evidence on the record establish ed that the business association 's 
commercial partner was a State-owned enterprise ( "SOE") of a Member that was a party to the 
dispute ; the same SOE had attended meetings with the panel in the dispute as part of  the official 
delegation of a Member and ha d access to confidential information ; both the other party and its SOE 
representatives ha d made simultaneous false statements to the press that were similar to the false 
statements in the press report at issue reg arding the Panel findings ; and (v) unless remedied 
immediately , i.e.,  within 24 hours , the confidentiality  breach  would harm the other Member party to 
the dispute because of the "24-hour news cycle ". 
14.7.   Saudi Arabia consider ed that respect for confidentiality was important in all cases but that it 
was especially crucial in cases concerning national security interests . Therefore,  panels should take 
extra care and attention to review such urgent matters in a national security con text. Panels should 
be encouraged to adopt special and expedited procedures in such cases . Saudi Arabia consider ed 
that in such cases panels should exercise their power over the proceedings to allow  the injured party 
to disclose confidential information in order to corr ect a false narrative with accurate information . 
Unless such violations were corrected immediately, the news cycle w ould move on and the false 
impressions w ould remain in the public consciousness and w ould continue to cause injury . The failur e 
to correct such a matter irrevocably prejudice d a Member's legal rights and  sent a systemic signal 
that no remedy exist ed to a prejudicial breach of binding confidentiality provisions under  the WTO 
Agreements by the WTO Secretariat or by a party to a WTO dispute, including in disputes centred  
on national security . 
14.8.   Saudi Arabia strongly believe d that this interpretation and outcome was not acceptable to 
WTO Members . Based on the situation des cribed above, in addition to the apparent lack of effective 
remedies to such violations, Saudi Arabia 's concern about the integrity of the WTO dispute 
 
49 Panel Report, para. 7.39.  WT/DSB/M/442  
- 45 - 
  settlement system le d it to suggest that a discussion should take place on the issue of confidentiality 
breaches in WTO dispute  settlement . Such discussion should be aimed at  encourag ing the 
development of balanced solutions under which panels would allow affected Members to protect their 
national interests and WTO rights in a timely manner . Such discussion s hould also be aimed at  
encourag ing panels to hold Members to their obligations and to discourage such violations in order 
to preserve Members ' WTO rights . Saudi Arabia consider ed that this topic should be addressed in 
the context of reform ing the WTO dispu te settlement system . In particular, where responsibility for 
a confidentiality breach could be ascertained by direct evidence or on the basis of "inferences and 
circumstantial evidence ", Members should confirm that panels had to  allow the injured party to 
disclose limited, accurate information to correct inaccuracies arising from the violation . 
14.9.   Finally, Saudi Arabia wished  to thank the Chairman  for his attention to this very serious issu e. 
In light of its severance of diplomatic and consular relations with Qatar, Saudi Arabia  wished to refer 
to the following Panel finding in the "Saudi Arabia – Protection of IPR" dispute (DS567) : "[t]he Panel 
notes that the severance of diplomatic or cons ular relations has been characterized as 'a unilateral 
and discretionary act usually decided upon only as a last resort when a severe crisis occurs in the 
relations between' a sending state and a receiving state . The severance of such relations typically 
brings about 'the termination of all direct official communication between' the two states" . Given 
"the termination of all direct official communication between " the Kingdom of Saudi Arabia and 
Qatar, Saudi Arabia had refused to engage directly with Qatar or to respond to its arguments or 
evidence throughout th is dispute . Saudi Arabia would  not acknowledge or respond to that country 
at the present meeting or in any other setting . Although this approach limit ed Saudi Ara bia's ability 
to defend against Qatar 's false claims, Saudi Arabia was  unwilling to compromise its national security 
interests by engaging with such a country under the circumstances . Saudi Arabia remain ed engaged 
in bilateral discussions about this import ant issue and welcome d any idea or collaboration that did 
not entail  Qatar 's presence or participation . 
14.10.   The representative of Qatar  said that  Saudi Arabia 's communication  contained in document 
WT/DSB/COM/9  and its statement made at the present meeting criticize d a procedural ruling by the 
Panel in the "Saudi Arabia – Protection of IPR" dispute (DS567) . It also  repeat ed unfounded 
allegations that Qatar had been  the source of information regarding the Panel Report, aspects of 
which, regrettably, had apparently been disclos ed to a UK newspaper before the circulation of the 
Report . Qatar had responded to these points in a communication circulated as document 
WT/DS567/6  and dated 2 6 June 2020. As Qatar had explained in its communic ation, Saudi Arabia 's 
allegations were unfounded and were not supported by any evidence whatsoever . Once again, Qatar  
reject ed these unfounded allegations . Saudi Arabia had made this same allegation before  the Panel . 
At the present meeting, Saudi Arabia  complain ed that the Panel had provided no remedy in response 
to its complaint and suggest ed that the Panel 's approach was an example of a "systemic issue ". 
However, the reason that Saudi Arabia had not receive d a remedy from the Panel had been  becau se 
it had provided "no information " to the Panel regarding the source of the alleged leak, other than 
denying that the leak had emanated from Saudi Arabia 's own delegation . The Panel had not endorse d 
Saudi Arabia 's unfounded allegation that Qatar had been  behind the apparent confidentiality  breach . 
There had simply been no factual basis for the Panel to do otherwise.  
14.11.   Turning to the systemic issues involved, the starting point of any discussion on this topic 
was Article 3.10 of the DSU, which envisage d that "all Members will engage in these procedures in 
good faith in an effort to resolve the dispute ". This core princip le of WTO dispute settlement cover ed 
all stages of a dispute, beginning with the consultations, and lasting all the way up to compliance . 
WTO panels ha d the power to ensure the orderly conduct of proceedings before them, which allow ed 
them to grant certain  remedies when litigants d id not engage in the proceedings in good faith . 
However, the most important safeguard against Members departing from that obligation was the 
Members'  shared interest in preserving the multilateral dispute settlement system , and th e 
reputational costs for a Member that would depart from those obligations . Qatar was heavily invested 
in the multilateral trade rules and ha d always conducted itself in strict adherence to the requirements 
of the DSU, the procedural rules, and the broader  obligations of good faith . The opposite  of 
confidentiality of panel proceedings was transparency of panel reports once circulated . Qatar 
believe d that the obligation of a party to engage in dispute settlement proceedings  in good faith, in 
an effort to resolve a dispute, extend ed to the manner in which a party characterize d a panel report 
in its public statements . Parties should avoid conduct that could  obscure the meaning of a published 
panel report or that was otherwise misleading . At the very least, parties had to  refrain from wilfully 
making public statements that were manifestly incorrect as to the contents of a panel report . WT/DSB/M/442  
- 46 - 
  14.12.   In this regard, Qatar was troubled by Saudi Arabia 's appropriation of the WTO 's name and 
logo for use in its own publicity material concerning the Panel Report  in the "Saudi Arabia — 
Protection of IPR" dispute (DS567) . Qatar consider ed that the publicity material in question was 
itself misleading as to the content s of the Panel Report . More importa ntly, by using the WTO 's name 
and logo at the top of its official communications, Saudi Arabia appear ed to be passing off its own 
erroneous characterizations of the Panel Report as somehow being endorsed by the WTO . Qatar had 
been forced to raise this matter with the Secretariat, as reflected in the a nnexes  to Qatar 's 
communication of 2 6 June 2020. Qatar was also concerned with wider attempts by Saudi Arabia to 
spread misinformation about the Panel 's findings . Qatar recall ed that  the "Saudi Arabia — Protection 
of IPR" dispute (DS567)  had arisen  against the backdrop of the worst case of broadcast piracy that 
the world ha d ever seen – the cynically -named "beoutQ " which ha d, for several years, stolen and 
rebroadcast copyright material owned or licensed to Q atari-based beIN Media Group, as well as from 
other right holders that includ ed many of the most famous sports leagues and events from around 
the world . The Panel had found that "beoutQ was operated by individuals or entities subject to the 
criminal jurisd iction of Saudi Arabia ".50 The Panel had also found that "while taking no action to 
apply criminal procedures and penalties to beoutQ, Saudi authorities engaged in the promotion  of 
public gatherings with screenings of beoutQ's unauthorized broadcasts of 2018 World Cup 
matches ".51 
14.13.   Further to this, and in stark con trast to what ha d been  seen in the public statements by 
Saudi Arabia – a Member that ha d imposed coercive and illegal trade measures on Qatar since 
5 June 2017 – the Panel in the "Saudi Arabia — Protection of IPR" dispute (DS567)  had made it clear 
in its Report, at paragraph 7.263, that it did not endorse any of the national security related 
allegations made by Saudi Arabia, stating that : "[t]he Panel expresses or implies no position 
concerning any of these allegations, and recalls that Qatar strongly denie d the various accusations 
made by Saudi Arabia ". Indeed, Qatar had made it very clear to the Panel that Saudi Arabia 's 
allegations against Qatar were entirely baseless . Qatar was  aware of reports that Saudi Arabia 
claim ed that it ha d been "fully vindicated " by the Panel . As the Panel 's findings ma de clear, such 
claims were inaccurate . The Panel 's factual findings had led the Panel to conclude that Saudi Arabia 
had violated Article  61 of the TRIPS Agreement in a manner that could not be justified by 
Saudi  Arabia 's invoking of the "national security " defen ce. The Panel 's rejection of Saudi Arabia 's 
defen ce was set out at paragraphs 7.293 and 8.1(c)(ii) of the Panel Report . This was the very first 
time in the WTO 's history and its predecessor the GATT that a Member ha d failed in invoking a 
national security defen ce. Saudi Arabia 's campaign of unfounded accusations, as well as its 
mischaracterization of the Panel Report, should neither  be welcomed nor entertained  at the present 
meeting . Instead, Saudi Arabia should take full responsibility for the serious violations as highlighted 
in the Panel Report, adopt immediate remedial action, and, in the closing words of the Panel Report, 
"bring its measures into conformity with its obligations under the TRIPS Agreement ". 
14.14.   The representative of Turkey  said that his country  consider ed confidentiality to be  an 
important pillar of the dispute settlement mechanism and recognize d that adherence to this principle 
was of paramount importance . In fact, confidentiality  was one of the twelve issues under 
negotiation s in the DSB Special Session in which  there ha d been extensive discussions  on 
transparency and confidentiality . As Turkey  underst ood from the communication, this specific issue 
had already been elaborated by the Panel and discussed during the Panel proceedings among the 
parties . Turkey believe d that Members c ould continue to dis cuss this item, along with its systemic 
implications, in the DSB Special Session along with other topics . With regard to the Panel report 
referred to by the parties, Turkey w ished  to make the following statement . Turkey found  the Panel 's 
ruling on this matter to be of great importance in terms of shedding light o n the discussion about  
the justiciability of obligations raised under security exceptions . The findings of the Panel confirm ed 
that measures brought forth with national security concerns were cha llengeable . The judgement of 
the invoking Member was not absolute and was dependent on the existence of certain conditions . 
Turkey welcome d the fact that the Panel  had rightly t aken guidance and had exercis ed its jurisdiction 
to determine whether the requi rements of Article 73 of TRIPS Agreement had been  satisfied in this 
case. Following its analysis, the Panel ha d arrived at certain conclusions and very important 
recommendations . This was in line with the spirit of the WTO rulebook which aim ed at striking  a fine 
balance between security concerns of Members and an appropriate level of action to address those 
 
50 DS567 Panel report, paragraph 7.155.  
51 DS567 Panel report, paragraph 7.219.  WT/DSB/M/442  
- 47 - 
  concerns . In this vein, WTO Members had to  continue to respect the rules and to live up to their 
commitments under the covered agreements . 
14.15.   The DSB took note of the statements.  
15  APPELLATE BODY APPOINTMENTS : PROPOSAL BY AFGHANISTAN ; ANGOLA ; 
ARGENTINA ; AUSTRALIA ; BANGLADESH ; BENIN ; PLURINATIONAL STATE OF BOLIVIA ; 
BOTSWANA ; BRAZIL ; BURKINA FASO ; BURUNDI ; CABO VERDE ; CAMEROON ; CANADA ; 
CENTRAL AFRICAN REPUBLIC ; CHAD; CHILE ; CHINA ; COLOMBIA ; CONGO ; COSTA RICA ; 
CÔTE D'IVOIRE ; CUBA; DEMOCRATIC REPUBLIC OF CONGO ; DJIBOUTI ; DOMINICAN  
REPUBLIC ; ECUADOR ; EGYPT ; EL SALVADOR ; ESWATINI ; THE EUROPEAN UNION ; GABON ; 
THE GAMBIA ; GHANA ; GUATEMALA ; GUINEA ; GUINEA -BISSA U; HONDURAS ; HONG KONG, 
CHINA ; ICELAND ; INDIA ; INDONESIA ; ISRAEL ; KAZAKHSTAN ; KENYA ; REPUBLIC OF 
KOREA ; LESOTHO ; LIECHTENSTEIN ; MADAGASCAR ; MALAWI ; MALAYSIA ; MALDIVES ; 
MALI; MAURITANIA ; MAURITIUS ; MEXICO ; REPUBLIC OF MOLDOVA ; MOROCCO ; 
MOZAMBIQUE ; NAMIBIA ; NEPAL ; NEW ZEALAND ; NICARAGUA ; NIGER ; NIGERIA ; NORTH 
MACEDONIA ; NORWAY ; PAKISTAN ; PANAMA ; PARAGUAY ; PERU; QATAR ; RUSSIAN 
FEDERATION ; R WANDA ; SENEGAL ; SEYCHELLES ; SIERRA LEONE ; SINGAPORE ; 
SOUTH  AFRICA ; SWITZERLAND ; THE SEPARATE CUSTOMS TERRITORY OF TAIWAN, 
PENGHU, KINMEN AND MATSU ; TANZANIA ; THAILAND ; TOGO; TUNISIA ; TURKEY ; 
UGANDA ; UKRAINE ; UNITED KINGDOM ; URUGUAY ; THE BOLIVARIAN REPUBLIC OF 
VENEZUELA ; VIET NAM ; ZAMBIA AND ZIMBABWE (WT/DSB/W/609/REV.18)  
15.1.   The Chairman  said that t his item was on the Agenda of the present  meeting at the request of 
Mexico, on behalf of a number of delegations . He drew  attention to the proposal contained in 
document WT/DSB/W/609/Rev. 18 and  invite d the representative of Mexico to speak.  
15.2.   The representative of Mexico, speaking on behalf of the co -sponsors of the joint proposal 
contained  in document  WT/DSB/W/609/Rev.18 , said that the delegations in question had agreed to 
submit the joint proposal , dated  18 June 2020, to launch the AB selection processes . Mexico 
welcome d Bangladesh as a new co -sponsor of this proposal . Her delegation , on behalf of 
121 Members , wished to make the following statement . The extensive number of Members 
submitting this joint proposal reflected a common concern with the current situation of the Appellate 
Body that was seriously affecting its workings and the overall dispute settlement system against the 
best interest of WTO Members . Members had a responsibility to safeguard and preserve the Appellate 
Body, the dispute settlement system and the multilateral trading system . Thus, it was the Members' 
duty to launch the AB selection processes without further delay , as set out in the joint proposal, 
which sought to : (i) start six selection processes : one process to replace Mr Ricardo 
Ramírez -Hernández, whose second term had expired on 3 0 June 2017; a second process to fill the 
vacancy that had occurred following the resignation of Mr Hyun Chong Kim with effect from 
1 August  2017; a third process to replace Mr Peter Van den Bossche, whose second term had expired 
on 11 December  2017; a fourth process to replace Mr Shree Baboo Chekitan Servansing, whose 
four-year term of office had expired on 3 0 September  2018; a fifth process to replace Mr Ujal Singh 
Bhatia, whose second term had expired on 1 0 December  2019; and a sixth process to replace 
Mr Thomas R.  Graham whose second term had expired on 1 0 December  2019; (ii) to establish a 
Selection Committee ; (iii) to set a deadline of 30 days for the submission of candidacies ; and (iv) t o 
request that the Selection Committee issue its recommendation within 60 days after the deadline 
for nominations of candidates . The proponents were flexible regarding the deadlines for the AB 
selection processes . However, they believed that Members should  consider the urgency of the 
situation . They continued to urge all Members to support this proposal in the interest of the 
multilateral trading system and the dispute settlement system . 
15.3.   The representative of South Africa  said that her country  support ed the statement made by 
Mexico . South Africa  support ed the premise of this proposal and join ed other co -sponsors in calling 
for the launch of the AB selection process es. The reactivation of the Appellate Body was the best 
guarantee for a two -tier dispute settlement system based on legal certainty and predictability . 
Therefore , South Africa  called on all Members to ensure that they discharge d their collective duty to 
select and appoint Appellate Body members as soon as possible.  
15.4.   The representative o f Thailand  said that a s a co -sponsor, Thailand support ed Mexico 's 
proposal to launch the AB selection processes . Thailand believed  that the two -tier binding WTO 
dispute settlement system was one of the core elements of the WTO . The current inability of the WT/DSB/M/442  
- 48 - 
  Appellate Body to function affect ed the ability of Members to secure a positive solution to their 
disputes . This would in turn undermine the security and predictability of the multilateral trading 
system . As one of the Member s with pending appeals, Thailand 's rights ha d been impaired as a 
result of the impasse . Thailand believe d that a fully functioning dispute settlement system was 
imperative to guarantee and preserve the rights and obligations of Members . Moreover, it w ould 
also assist Members in resolving their disputes effectively . Thailand  strongly encourage d all Members 
to continue to find a long -term solution to this problem.  
15.5.   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, as well as  to 
its statement s made at  the General Council meetings, including at the  9 December  2019 General 
Council  meeting . Since 1 1 December  2019, the WTO no  longer guarantee d access to a binding, 
two-tier, independent and impartial resolution of trade disputes . This was in clear breach of the WTO 
Agreements . As the EU  had stated repeatedly , Members ha d 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  thank ed 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.  
15.6.   The representative of the United Kingdom  said that his country  continue d to support this 
proposal for the launch of the AB selection process es. The United Kingdom wished  to refer to its 
statements made at previo us DSB meetings under  this Agenda item . The United Kingdom  also 
support ed the statement made by Mexico on behalf of all co -sponsors . The United Kingdom was a 
strong supporter of the WTO dispute settlement system, a central pillar of the rules -based 
multilateral trading system . An effective and binding dispute settlement mechanism ensure d that 
the rules that Members had  negotiated were enforceable, preserving the rights and obligations of all 
Members . The United Kingdom  continue d to be concerned that the Membership ha d not been able 
to launch the AB selection process es, with the result  that the Appellate Body was unable to hear 
new appeals . The United Kingdom  was seeing the concrete impairment of rights , which was arising 
from the situation . The United  Kingdom  also wish ed to reiterate its commitment to finding a 
resolution to the impasse with the Appellate Body , which carrie d the support of all Members . The 
United Kingdom  underst ood the long -standing concerns that ha d been raised and recognize d that in 
a consensus -based organization like the WTO, any dispute resolution mechanism had to  carry the 
trust of all Members . The United Kingdom  stood ready to play a full role in future discussions on 
dispute settlement reform . However, the United Kingdom  also consider ed that finding a solution 
should not stand in the way of the continued functioning of the system and the launch of the AB  
selection process es. Therefore , the United Kingdom  called on all Members to act to restore the 
system to its full functioning whil e they prioritize d discussions on a long -term solution.  
15.7.   The representative of Japan  said that his country  wished to refer to its statements made at 
previous DSB meetings  under this Agenda item . Japan support ed this proposal . All Members 
recognize d the urgent need for a reform of the WTO dispute settlement system so that it function ed 
properly in serving the ultimate goal of securing a positive solution to a dispute . Japan's  priority ha d 
always been and continue d to be to find a long -lasting solution to the Appellate Body matter . Simply 
replicating or duplicating the Appellate Body as Members  knew it would be hardly conducive to this 
ultimate goal . If something believed to be infallible bec ame fallible or indeed was falling apart, those 
who h eld such belief could  be tempted to preserve such belief and maintain the status quo . This was 
understandable . However, Members  had a choice and an opportunity  with regard to this . Japan 
asked the following questions : When long -held, established and unshakable orthodoxy was shaken 
and discredited, was this the time for change , a time to be creative , a time to use one 's imagination 
to create a better future unimagined in the past, rather than sticking to the past . Members  had 
entered into a realm of uncertainty, which many Members  might not like . However,  such uncertainty 
would provide Members  with an opportunity to experiment a variety of means to resolve disputes . 
This could in turn give Members  a tool to rebuild something wonderful : a more viable, accountable 
and sustainable dispute settlement system th at would work to the benefit of all Members in the 
21st century . The MPIA that Members had discussed under  a previous Agenda item c ould be 
considered as part of Members ' experimentation should it  operate in a forward -looking and 
transparent manner . Members  had established the system, own ed the system and administer ed the 
system . It was up to Members to bring about a brighter future . With imagination and creativity, 
Members c ould build or rebuild a better and more viable WTO dispute settlement system.  WT/DSB/M/442  
- 49 - 
  15.8.   The representative of the United States  said that as the United States had explained at prior 
DSB meetings,  the United States was not in a position to support the proposed decision. The systemic 
concerns that the United States had identified remained unaddres sed. The US view across multiple 
US Administrations had been clear and consistent: When the Appellate Body overreached and abused 
the authority it had been given within the dispute settlement system, it undermined the legitimacy 
of the system and damaged t he interests of all WTO Members who cared about having the 
agreements respected as they had been negotiated and agreed. Earlier in 2020, the Office of the US 
Trade Representative had published a Report on the Appellate Body  of the World Trade Organization , 
detailing how the Appellate Body had failed to apply WTO rules as agreed by WTO Members, 
imposing new obligations and violating Members' rights.52 The United States encouraged Members 
to review the Report. As the United States had explained repeatedly, th e fundamental problem was 
that the Appellate Body had not respected the current, clear language of the DSU. Members could 
not find meaningful solutions to this problem without understanding how they had arrived at this 
point. Without an accurate diagnosis,  Members could not assess the likely effectiveness of any 
potential solution. The United States had actively sought engagement from Members on these issues. 
Yet, some Members had remained unwilling to admit that there was even a problem, much less 
engage i n a deeper discussion of the Appellate Body's failures. And rather than seeking to understand 
why the Appellate Body had departed from what Members had agreed, these Members and others 
had incorporated and exacerbated some of the worst aspects of the Appel late Body's practices, as 
discussed under Agenda Item 13. Nevertheless, the United States was determined to bring about 
real WTO reform, including to ensure that the WTO dispute settlement system reinforced the WTO's 
critical negotiating and monitoring fun ctions, and did not undermine those functions by overreaching 
and gap filling. As discussions among Members continued, the dispute settlement system continued 
to function. The central objective of that system remained unchanged: to assist the parties to fi nd 
a solution to their dispute. As before, Members had many methods to resolve a dispute, including 
through bilateral engagement, alternative dispute procedures, and third party adjudication. 
Consistent with the aim of the WTO dispute settlement system, th e parties should make efforts to 
find a positive solution to their dispute, and this remained the US preference. And the United States 
would continue to insist that WTO rules be followed by the WTO dispute settlement system. The 
United States would continu e its efforts and its discussions with Members and with the Chair to seek 
a solution on these important issues . 
15.9.   The representative of Korea  said that his country wished  to welcome Bangladesh as a new 
cosponsor and support ed the statement made by Mexico bas ed on the joint proposal . Korea urge d 
all Members to engage constructively in the relevant discussions to resolve th is issue as soon as 
possible.  
15.10.   The representative of Brazil  said that his country  thank ed Mexico for its statement made on 
behalf of the co -sponsors . Brazil wished to be fully associate d with that statement . As noted under 
a previous Agenda item, Brazil  stood fully committed to finding a lasting improvement of the 
appellate stage in the WTO dispute settlement system . Brazil viewed this as a priority for the 
Organization . Brazil was  prepared to engage with all Members in  search for a long -lasting solution 
that could  gain the support of the entire Membership.  
15.11.   The representative of Switzerland  said that her country wished to refer to its statements 
made at  previous DSB meetings  on this matter . Once again, Switzerland  urged all Members to 
engage constructively in order to solve this impasse without further delay . The restoration of the 
Appellate Body remain ed Switzerland's  priority . Switzerland welcome d the MPIA, an appeal 
mechanism of an interim nature, which preserve d the two-tier and binding nature of the WTO dispute 
settlement  system . Switzerland believed that it was an important instrument in strengthen ing the 
security and predictability of the multilateral trading system in the current context . 
15.12.   The representative of Norway said that  as mentioned  under  Agenda item  13 regarding the 
MPIA, some important work ha d been done  in recent months . However , and sadly , the situation 
remained  the same when it c ame to the appointment of new Appellate Body members . Thus, his 
country wished to  refer to its statements made at previous DSB meetings  on this matter and urge d 
the United States to unblock the AB selection process es. One Member  was blocking : this was the 
simple and accurate diagnosis of the problem Members we re facing  – a diagnosis that had previously 
 
52 United States Trade Representative, Report on the Appellate Body of the World Trade Organization 
(February 2020), available at https:// geneva.usmission.gov/wp -content/uploads/sites/290/AB -
Report_02.11.20.pdf . WT/DSB/M/442  
- 50 - 
  been asked for at the present meeting . Until the AB selection processes  were unblocked, Norway  
invite d all other Members to co -sponsor this Agenda item.  
15.13.   The representative of New Zealand  said that his country wished to  reiterate its support for 
the co -sponsored proposal and to refer to its statements  made at previous DSB meetings on this 
matter . New Zealand  continue d to urge all Members to engage constructively in seeking to find a 
resolution to the impasse . 
15.14.   The representative of Australia  said that her country wished to refer to its statements made 
at previous DSB meetings on this matter . Australia  remain ed strongly committed to working with 
the entire  Membership to resolve the Appellate Body impasse . Australia  continue d to encourage all 
Members to engage actively, constructively, and pragmatically to further  their collective interest in 
an efficient, functional, two -stage dispute settlement system.  
15.15.   The representative of China  said that his country  echoe d the statement made by Mexico on 
behalf of the 121 co -sponsors of this proposal . The paralysis of the Appellate Body continue d to be 
the most urgent matter for the WTO  that need ed to be addressed collectively as the top priority . 
Maintaining a two -tier, independent and predictable dispute settlement system was very important 
for the WTO . To show stronger political will on this important matter, China  encourage d more 
Members to join this proposal which ha d already attracted more than 73 % of the entire  Membership . 
China expressed  deep regret that the United States , once again , had decided to block the launch of 
the AB selection process es. Ensuring the functioning of the Appellate Body was not an option but a 
legal obligation . Article 17.2 of the DSU ma de it very clear : Members b ore the  legal obligation to fill 
vacancies of the Appellate Body as they ar ose. China firmly oppose d using any pret ext to disregard 
this obligation , which had been  agreed by the entire  Membership and written in to the DSU . The 
Appellate Body could be further improved at various fronts . However, any potential improvement 
could be realized only if there was still a viable  Appellate Body . Over the past two years, Members 
had made significant  and sincere efforts in formulating converging  reform proposals regarding  the 
Appellate Body . Progress had been made but Members were  still far from reaching a lasting solution 
to the cr isis. The United States , which repeatedly raise d various concerns over the functioning of the 
Appellate Body , had not showed any willingness to constructively engage in reform discussions . 
Without meaningful engagement of the United States, the viability of the already crippled dispute 
settlement system was in peril . While restoring a functioning Appellate Body remain ed China's 
priority, China believed that it was equally important to establi sh a timely stop -gap solution while 
the paralysis of the Appellate Body  lasted . He recalled that o n 30 April 2020, China and 
20 other  Members had notified the DSB of the Multi -Party Interim Appeal Arbitration Arrangement 
(MPIA) . This interim mechanism was nearly fully operation al. This open and inclusive mechanism 
could help maintain the binding nature of the dispute settlement system until a convergence on 
Appellate Body reform could be reached . China welcome d and encourage d more Members to 
seriously consider subscribing to the MPIA . 
15.16.   The representative of Turkey  said that his country wished to  thank Mexico for placing this 
item on the A genda and welcome d Bangladesh as a new co -sponsor of the joint proposal . Turkey 
was pleased that there were 121 Members that endors ed the need to urgently launch  the AB 
selection processes . As a co -sponsor of this proposal, Turkey reiterate d its support to preserve the 
two-tier character and binding nature of the dispute settlement syste m. Turkey  believe d that 
discussions on current deficiencies of the system should continue but that they should not be an 
impediment to the  launch  of the AB selection processes, a situation which Turkey  believe d would 
benefit no one . Turkey was ready to wor k constructively with all Members to break the current 
impasse and engage in discussions with the Membership to launch the AB selection processes.  
15.17.   The representative of India said that his country wished to refer to its statements made at 
previous DSB meetings on this matter . India wished to reiterate its serious concerns regarding the 
DSB's inability to  launch  the AB selection processes , and to call on all Members to start the AB 
selection processes as a priority.  
15.18.   The representative of Hong Kong, China  said that his delegation  wished  to thank Mexico for 
its statement made under this Agenda item on behalf of the co -sponsors . Hong Kong, China 
reiterated its concerns with the lack of progress in resolving the impasse , as well as the importance 
of the Appellate Body to the multilateral trading system , as referred to under Agenda item 13 of th e 
present  meeting . Hong Kong, China  strongly believed  that the AB selection process es should 
commence without delay in order to resume the normal functioning of the  Appellate Body as soon WT/DSB/M/442  
- 51 - 
  as possible . Hong Kong, China  urged Members to continue with the ir efforts and constructive 
engagement until a solution was found.  
15.19.   The representative of Singapore  said that his country  wished to refer to its statements made 
at previous DSB meetings on this matter . Singapore  reiterate d its strong systemic interest in the 
maintenance of a two-tier and binding WTO dispute settlement mechanism that was underpinned 
by negative consensus . The unblocking of the AB  selection process es had to remain the paramount 
priority for all Members . Singapore  urged all Members, including the United States, to constructively 
engage in finding concrete solutions . Singapore  also wish ed to welcome Bangladesh as a co -sponsor  
of this  proposal . 
15.20.   The represe ntative of Qatar  said that his country wished to refer to its statements made at 
previous DSB meetings on this matter . Qatar wished to be associated with the statement made by 
Mexico on behalf of the co-sponsors . Qatar expressed regret that the DSB had failed to initiate the 
AB selection processes . Qatar recalled that Members had a shared obligation to promptly fill the 
vacancies in the Appellate Body, as required by Article 17.2 of the DSU . The clear text of that 
provision indica ted that such responsibility had to  be fulfilled unconditionally . To avoid unintentional 
consequences, Qatar called on all Members to act in a cooperative manner in order to break the 
impasse in the AB selection processes without further delay . Qatar also  wished to emphasize that 
the discussion on improving the DSU should not be a reason to delay the AB selection processes . 
Qatar was ready to work on solutions with all Members while preserving the essence of the dispute 
settlement system.  
15.21.   The representative of the Russian Federation  said that her country wished  to thank Mexico 
for its statement made under this Agenda item and welcome d Bangladesh as a new co -sponsor . 
Russia also wished to refer to its statements made at previous DSB meetings  and reiterate d its 
support for the two -tier dispute settlement system provided for under the DSU.  
15.22.   The representative of Canada  said that his country  support ed the statement made by Mexico  
under this Agenda item . Canada share d the concerns expressed by other Members at the present 
meeting . Canada welcome d Bangladesh as a new co -sponsor to th is proposal and invite d WTO 
Members that ha d not sponsored the proposal yet to consider joining the 121 Members calling for 
the launch of t he AB selection process es. The critical mass of WTO Members behind this proposal 
was a clear testimony to the importance that all Members accord ed to a fully functioning Appellate 
Body as an integral part of the dispute settlement system . Therefore , Canada  called on the 
United  States to act in accordance with Article 17.2 of the DSU and unblock the AB selection  
process es. The fact that the Appellate Body c ould not hear new appeals was of great concern . Canada 
reiterate d that it was fully committed to discussions on matters related to the functioning of the 
Appellate Body . Canada's  priority remain ed to find a long -lasting multilateral resolution to the 
impasse that cover ed all Members, including the United States . To that effect, Canada  called on the 
United States to engage, constructively, in solution -oriented discussions . In the meantime, Canada 
would continue its work on the Multi -Party Interim Appeal -Arbitration Arrangement (MPIA) as a 
contingency measure . The MPIA was open to all WTO Members, and Canada invite d all Members  to 
seriously consider joining . The MPIA provide d the opportunity for willing Members to safeguard their 
rights to binding, two -stage, dispute settlement in disputes amongst themselves . The MPIA w ould 
remain in place until a long -lasting multilateral solution was found.  
15.23.   The representative of Chinese Taipei  said that as a co -sponsor his delegation  support ed 
Mexico's proposal . Chinese Taipei wished to refer to its statements made at previous DSB meetings 
on this matter . Chinese Taipei w elcome d Bangladesh to join th is proposal . Chinese Taipei  encourage d 
Members to engage in constructive dialogue  to overcome the current impasse.  
15.24.   The representative of Mexico , speaking on behalf of the 121 co -sponsors of the joint proposal  
contained  in document WT/DSB/W/609/Rev.1 8, regret ted that for the thirty -third occasion, 
Members had still not been able to launch the AB selection processes and had thus continuously 
failed to fulfil their duty as Members of this Organization . The fact t hat a Member might have 
concerns about certain aspects of the functioning of the Appellate Body should not serve as a pretext 
to undermine and disrupt its work as well as the work of the dispute settlement system . There was 
no legal justification for the c urrent blockage of the AB selection processes, which was causing 
concrete nullification and impairment for many Members . As Article 17.2 of the DSU clearly stated : 
"[v]acancies shall be filled as they arise" . No discussion should prevent the Appellate Body from 
continuing to operate fully and Members had to comply with their obligation under the DSU to fill WT/DSB/M/442  
- 52 - 
  the AB vacancies . Mexico noted with deep concern that due to the continued failure to act at the 
present m eeting, the Appellate Body would continue to be unable to perform its functions, against 
the best interest of all Members . 
15.25.   The representative of Mexico  said that her country considered that the joint proposal  
contained  in document WT/DSB/W/609/Rev.1 8 demon strated Members' desire to comply with their 
obligation to fill AB vacancies as they arose, in accordance with Article 17.2 of the DSU . Mexico 
expressed deep regret that Members were in an unprecedented situation whereby the Appellate 
Body was incomplete and non -operational . All ongoing disputes were being affected by the lack of a 
fully functioning dispute settlement system . This undermined the right of all Members to engage in 
appellate proceedings . As stated under Agenda item  13, Mexico suppo rted an interim arrangement 
that provide d for a two -tier dispute settlement system and ensure d the adoption of panel reports . 
However, t his arrangement d id not detract from Mexico's  main objective , namely, t o have a 
functional Appellate Body . Mexico urged Members to join the list of co -sponsors of this proposal and 
not to become accustomed to this situation . Mexico reiterated its readiness to work toward a solution 
through concrete proposals aimed at reaching a concrete solution . 
15.26.   The Chairman  thank ed all delegations for their statements  and said that, as in the past, the 
DSB would take note of the statements expressing the respective positions, which would be reflected 
in the minutes of the present meeting.  
15.27.   The DSB took note of the statements.  
__________