WT/AB/30  
 
31 July 2020  
(20-5341) Page: 1/221 
   
 
 
 
 
 
APPELLATE  BODY  
 
 
ANNUAL REPORT FOR 201 9-2020  
 
 
 
 
 
JULY 2020  WT/AB/30  
 
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The Appellate  Body welcomes comments and inquiries  
regarding this Annual Report at the  
following address:  
 
Appellate  Body Secretariat  
World Trade Organization  
Rue de Lausanne 154  
CH-1211 Geneva  2, Switzerland  
<https://www.wto.org/english/tratop_e/dispu_e/appellate_body_e.htm > 
  WT/AB/30  
 
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  CONTENTS  
FOREWORD  ................................ ................................ ................................ .....................  7 
1   INTRODUCTION  ................................ ................................ ................................ ....... 10 
2   COMPOSITION OF THE APPELLATE  BODY  ................................ ................................ . 13 
3   APPEALS  ................................ ................................ ................................ ..................  15 
3.1   Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) (Article  21.5 – EU), 
WT/DS353/AB/RW  ................................ ................................ ................................ ...........  17 
3.2   Appellate  Body Report, Korea – Import Bans, and Testing and Certification  
Requirements for Radionuclides , WT/DS495/AB/R  ................................ ................................  43 
3.3   Appellate  Body Report, United  States – Countervailing Duty Measures on Certain  
Products from China – Recourse to Article  21.5 of the DSU by China , WT/DS437 /AB/RW  ..........  52 
3.4   Appellate  Body Report, Korea – Anti-Dumping Duties on Pneumatic Valves from Japan , 
WT/DS504/AB/R  ................................ ................................ ................................ ..............  69 
3.5   Appellate  Body Report, Ukraine – Anti-Dumping Measures on Ammonium Nitrate , 
WT/DS493/AB/R  ................................ ................................ ................................ ..............  93 
3.6   Appellate  Body Report, Morocco – Anti-Dumping Measures on Certain Hot -Rolled  
Steel from Turkey , WT/DS513/AB/R  ................................ ................................ .................  103 
3.7   Appellate  Body Report, Russia – Measures Affecting the Importation of  
Railway Equipment and Parts Thereof , WT/DS499/AB/R  ................................ ......................  104 
3.8   Appellate  Body Report, United  States – Countervailing Measures on  
Supercalendered Paper from Canada , WT/DS505/AB/R  ................................ .......................  115 
3.9   Appellate  Body Reports, Australia – Certain Measures Concerning Trademarks,  
Geographical Indications and Other Plain Packaging Requirements applicable to  
Tobacco Products and Packaging , WT/DS435/AB/R, WT/DS441/AB/R  ................................ ... 118 
4   PARTICIPANTS AND THIRD PARTICIPANTS IN APPEALS  ................................ ....... 142  
5   PROCEDURAL ISSUES ARISING IN APPEALS  ................................ ..........................  142  
5.1   Consolidation of appeal proceedings  ................................ ................................ .........  142 
5.2   Treatment of confidential information  ................................ ................................ ........  142 
5.3   Treatment of late submissions  ................................ ................................ ..................  145 
5.4   Time limits for the filing of written submissions  ................................ ..........................  145 
5.5   Requests regarding the conduct of the oral hearing  ................................ ....................  146 
5.6   Transition  ................................ ................................ ................................ ..............  148 
5.7   Reasons for the extension of the time period for the circulation of Appellate  Body  
reports  ................................ ................................ ................................ .........................  148 
5.8   Withdrawal of an appeal  ................................ ................................ ..........................  148 
5.9   Amici  curiae  submissions  ................................ ................................ .........................  148 
6   ARBITRATIONS UNDER ARTICLE  21.3(C) OF THE DSU  ................................ ...........  148  
6.1   Ukraine – Anti-Dumping Measures on Ammonium Nitrate , WT/DS493/RPT  ....................  149 
7   OTHER ACTIVITIES  ................................ ................................ ................................  153  
7.1   Digital Dispute Settlement Registry (DDSR) / Disputes Online R egistry Application  
(DORA)  ................................ ................................ ................................ .........................  153 
7.2   The John H. Jackson Moot Court Competition on WTO Law  ................................ ...........  155 
7.3   Technical assistance activities  ................................ ................................ ..................  156 
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  ANNEX 1  ................................ ................................ ................................ .....................  157  
ANNEX 2  ................................ ................................ ................................ .....................  160  
ANNEX 3  ................................ ................................ ................................ .....................  164  
ANNEX 4  ................................ ................................ ................................ .....................  168  
ANNEX 5  ................................ ................................ ................................ .....................  171  
ANNEX 6  ................................ ................................ ................................ .....................  174  
ANNEX 7  ................................ ................................ ................................ .....................  176  
ANNEX 8  ................................ ................................ ................................ .....................  178  
ANNEX 9  ................................ ................................ ................................ .....................  180  
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  ABBREVIATIONS  USED IN THIS ANNUAL REPORT  
Abbreviation  Description  
AFA adverse facts available  
ALADI  Asociación Latinoamericana de Integración /Associação Latino -Americana de 
Integração  
ALOP appropriate level of protection  
B&O business and occupation  
BCI business confidential information  
Catalyst  Catalyst Paper Corporation  
CEECAC  Central and Eastern Europe, Central Asia and the Caucasus  
CKD CKD Corporation  
CLEEN  Continuous Lower Energy Emissions, and Noise  
CU Eurasian Economic Union as established in accordance with the Treaty on 
Eurasian Economic Union of 29 May 2014 (former Customs Union of the 
Republic of Belarus, the Republic of Kazakhstan, and the Russian Federation)  
CVD countervailing duty  
DDSR  Digital Dispute Settlement Registry  
Doha Declaration  Doha Declaration on TRIPS Agreement and Public Health  
DORA  Disputes Online Registry Application  
DSB Dispute Settlement Body  
DSS dispute settlement system  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
EAEU Treaty  Treaty on the Eurasian Economic Union  
EDB economic development bond  
ELSA European Law Students' Association  
EuroChem  JSC MCC EuroChem  
FAA Federal Aviation Administration  
FBO Russian Federal Budgetary Organization  
FCTC Framework Convention on Tobacco Control (2003)  
FDNPP  Fukushima Dai -ichi Nuclear Power Plant  
FSC/ETI  Foreign Sales Corporation/Extraterritorial Income  
GATS  General Agreement on Trade in Services  
GATT  1994 General  Agreement on Tariffs and Trade 1994  
GHW graphic health warnings  
GI geographical indications  
GOC Government of China  
HSBI highly sensitive business information  
ICIT Ukraine's Intergovernmental Commission on International Trade  
IP intellectual property  
IRB industrial revenue bond  
ITC International Tobacco Control  
Irving  Irving Paper Ltd  
ITAR International Traffic in Arms Regulations  
IR&D independent research and development  WT/AB/30  
 
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  Abbreviation  Description  
KCC KCC Co., Ltd.  
KTC Korea Trade Commission  
LCA large civil aircraft  
MEDT  Ministry of Economic Development and Trade of Ukraine  
MLPA  minimum legal purchasing age  
MOSF  Korea's Minister of Strategy and Finance  
NTPPTS  National Tobacco Plain Packaging Tracking Survey  
OCTG  oil country tubular goods  
OFA other forms of assistance  
OTI Korea's Trade Commission Office of Trade Investigation  
Paris Convention (1967)  Stockholm Act of the Paris Convention for the Protection of Industrial Property 
of 14 July 1967  
PHP Port Hawkesbury Paper LP  
POI period of investigation  
PRC People's Republic of China  
RDT&E  research, development, test, & evaluation  
Resolute  Resolute FP Canada Inc.  
RPT reasonable period of time  
Rules of Conduct  Rules of Conduct for the Understanding on Rules and Procedures Governing 
the Settlement of Disputes  
SCM Agreement  Agreement on Subsidies and Countervailing Measures  
SIE state-invested  enterprise  
SMC SMC Corporation  
SPS Agreement  Agreement on the Application of Sanitary and Phy tosanitary Measures   
TBT Agreement  Agreement on Technical Barriers to Trade  
TIPRA  Tax Increase Prevention and Reconciliation Act  
TMA Act  Trade Marks Amendment (Tobacco Plain Packaging) Act 2011 (Cth)  
TPC TPC Mechatronics Corporation  
TPP Act  Tobacco Plain Packaging Act 2011 (Cth)  
TPP Regulations  Tobacco Plain Packaging Regulations 2011 (Cth), as amended by the Tobacco 
Plain Packaging Amendment Regulation 2012 (No. 1) (Cth)  
TRIMs Agreement  Agreement  on Trade -Related Investment Measures  
TRIPS Agreement  Agreement on Trade Related Aspects of Intellectual Property Rights  
USDOC  United States Department of Commerce  
USDOD  United States Department of Defense  
VIF variance inflation factors  
WHO World Health Organization  
Working Procedures  Working Procedures for Appellate Review  
WTO World Trade Organization  
WTO Agreement  Marrakesh Agreement Establishing the World Trade Organization  
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  FOREWORD  
This annual report covers the cases the Appellate Body completed during 2019 and the first half of 
2020.  
During this period, eight panel reports concerning seven matters were appealed.1 Also before the 
Appellate Body during this period were 13 appeals that were carried over into 2019.2 Altogether, 
21 appeals were before the Appellate Body during this period, including six appeals for which the 
Appellate Body reports were circulated in 20193 and four appeals for which the Appellate Body 
reports were circulated in the first half of 2020.4 The appeals that were pending before the 
Appellate  Body during this period raised a wide range of issues under numerous covered 
agreements, including the GATT  1994, the GATS, the Anti -Dumping  Agreement, the 
SCM Agreement, the Agreement on Safeguards, the TBT  Agreement, the SPS  Agreement, the 
TRIPS  Agreement, the Customs  Valuation Agreement, and the DSU.  
Appeals completed by the Appellate Body during this period presented diverse and sensitive issues. 
These included issues arising from measures and under covered agreements that have frequently  
been subject to WTO dispute settlement, such as prohibited and actionable subsidies under the 
SCM Agreement (one case), anti -dumping and countervailing duty investigations and the imposition 
of such duties under the Anti -Dumping Agreement (two cases), and  the SCM  Agreement (two cases). 
In addition, sensitive issues relating to the protection of public health arose in two of the appeals 
completed by the Appellate Body in 2019 and 2020. Korea – Radionuclides  involved import measures 
imposed by Korea on certa in fishery products from Japan following the Fukushima Dai -ichi Nuclear 
Power Plant accident. Another high -profile dispute completed by the Appellate Body was 
Australia  – Tobacco Plain Packaging , which raised, inter alia , issues concerning Members' rights to 
pursue public health policies consistently with their obligations under the TBT  Agreement, the 
TRIPS  Agreement, and the DSU.  In addition, in Russia – Railway Equipment , the Appellate Body for 
the first time reviewed Members' obligations regarding their procedures for assessment of conformity 
with technical regulations or standards under the TBT  Agreement.  
Most appeals heard by the Appellate Body during this period were  also notable for their complexity 
and size. The first dispute for which an Appellate Body report was circulated in this period was 
US – Large Civil Aircraft (2nd complaint) (Article  21.5 – EU), which was an exceptionally large and 
complex dispute that req uired much of the Appellate Body and its Secretariat's resources during the 
beginning of 2019. In this appeal, the Appellate Body reviewed the compliance panel's findings 
regarding compatibility with the SCM  Agreement of a large number of alleged subsidy m easures, 
including procurement contracts, various tax measures, R&D measures, and measures related to 
government bonds. The last Appellate Body report circulated in this period concerned the appeals 
regarding Australia – Tobacco Plain Packaging , which were  also exceptionally large and complex. 
They involved three participants and 35 third participants, and the panel record consisted of, inter 
alia, more than 1, 300 exhibits , dozens  of expert reports, and an approximately 1,000-page 
panel  report. These appeals required a significant portion of the resources of the Appellate Body and 
its Secretariat throughout 2019 and 2020.  In these appeals, the Appellate Body reviewed the Panel's 
 
1 The following panel reports were appealed during 2019: Thailand – Cigarettes (Philippines) 
(Article  21.5 – Philippines) ; Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines II) ; US – Pipes and 
Tubes (Turkey) ; US – Differential Pricing Methodol ogy; US – Renewable Energy ; India – Export Related 
Measures; and EC and certain member States – Large Civil Aircraft (Article 21.5 – EU). The number of appeals 
in 2019 also includes the panel report in US – Carbon Steel (India) (Article 21.5 – India),  for which the 
United  States notified its decision to appeal, but did not file a notice of appeal or an appellant submission 
because no Division of the Appellate Body could be established to hear the appeal (WT/DS436/22).  
2 The following appeals were pending at  the start of 2019: US – Large Civil Aircraft (2nd complaint) 
(Article 21.5 – EU); Korea – Radionuclides ; US – Countervailing Measures (China) (Article 21.5 – China) ; 
Korea  – Pneumatic Valves (Japan) ; Australia – Tobacco Plain Packaging (Honduras) ; Australia – Tobacco Plain 
Packaging (Dominican Republic) ; Ukraine – Ammonium Nitrate ; Russia – Railway Equipment ; 
US – Supercalendered Paper ; EU – Energy Package ; Colombia – Textiles (Article 21.5 – Colombia) / 
Colombia  – Textiles (Article 21.5  – Panama) ; Morocco – Hot Rolled Steel (Turkey) ; and India – Iron and Steel 
Products .  
3 The following Appellate Body reports were circulated in 2019: US – Large Civil Aircraft (2nd complaint) 
(Article 21.5 – EU); Korea – Radionuclides ; US – Countervailing  Measures (China) (Article 21.5 – China) ; 
Korea  – Pneumatic Valves (Japan) ; Ukraine – Ammonium Nitrate ; and  Morocco – Hot Rolled Steel (Turkey) . 
4 The Appellate Body reports for which the circulation dates fell in 2020 concerned the following panel 
reports : Ukraine – Ammonium Nitrate ; Russia – Railway Equipment ; Australia – Tobacco Plain Packaging 
(Honduras) ; and Australia – Tobacco Plain Packaging (Dominican Republic) . WT/AB/30  
 
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  findings concerning the compatibility  with the TBT Agreement and with the TRIPS Agreement of 
Australia's measures requ iring the plain packaging of Tobacco products.   
In addition to the above two disputes, the Appellate Body worked on the completion of seven other 
Appellate Body reports involving as many matters, each of which pr esented unique and complex 
issues and challenges. For example, in US – Countervailing Measures (China) (Article  21.5 – China) , 
the Appellate Body reviewed the compliance panel's rulings concerning 12 countervailable subsidy 
determinations conducted by the investigating authority of the United  States, including the panel's 
interpretation of "public body" within the meaning of Article  1.1(a)(1) of the SCM  Agreement, and 
the determinations of benefit and specificity under Articles 14(d) and 2.1(c), respectivel y. In 
Korea  – Pneumatic Valves (Japan) , the Appellate Body clarified, inter alia , the intricate relationships 
among the effects of dumping under Articles  3.2 and 3.4 of the Anti -Dumping Agreement, and the 
causal relationship under Article  3.5. In Ukraine – Ammonium Nitrate , the Appellate Body reviewed 
the Panel findings regarding the consistency of the use of costs other than those based on records 
kept by the exporter/producer under investigation for purposes of determining the constructed 
normal values un der Article  2.2.1.1 of the Anti -Dumping Agreement. The Appellate  Body also 
clarified the relationship between Article  2.2.1.1 and Article  2.2 of the Anti -Dumping Agreement 
relating to the determination of dumping. Amidst this unabating work on the appellat e proceedings, 
the Appellate Body Secretariat also assisted Arbitrator Ricardo Ramírez -Hernández in determining 
the reasonable period of time for implementation of the DSB rulings and recommendations in 
Ukraine  – Ammonium Nitrate .  
The Appellate Body's wor k during 2019 and the first half of 2020 coincided with the reduced number 
of the Appellate Body members. Specifically, the Appellate Body, which normally should consist of 
seven  members, was composed of only three  members during much of 2019.5 Moreover, on 
10 December 2019, the terms of office of Messrs Ujal Singh Bhatia and Thomas R. Graham as 
Appellate  Body members expired. This resulted in the Appellate Body being reduced thereafter to 
only one remaining member, Madame Hong Zhao, below the r equired number of 
Appellate  Body members (three) to serve on an appeal pursuant to Article  17(1) of the DSU. The 
selection processes for the appointment of new Appellate  Body members continued to be discussed 
at the DSB meetings throughout 2019 and in 2020 , but WTO  Members were not able to reach 
consensus to launch and fill the outstanding vacancies.6 In light of these developments, the Chair of 
the DSB stated at the DSB meeting held on 3  December  2019 that, with respect to the appeals 
pending as of that d ate in which the oral hearing had taken place ( Australia – Tobacco Plain 
Packaging  (DS435, DS441), Russia  – Railway Equipment  (DS499), and US – Supercalendered Paper  
(DS505)), the Divisions assigned to each of these appeals would continue its work until th e 
completion of the appeals.7 The Divisions for all other pending appeals communicated that they had 
decided to suspend their work on these appeals as of 10  December  2019 with the expiry of the terms 
of office of Messrs Bhatia and Graham. As a result of t hese developments, since 10  December  2019, 
the work of the Appellate Body has come to a halt except for the work on the Appellate Body reports 
circulated in the first half of 2020, and the Appellate Body has since been, and remains, unable to 
hear any pend ing or future appeals until the DSB agrees to initiate the selection process to fill the 
 
5 In addition, Messrs Peter Van den Bossche and Shree Baboo Chekitan Servansing, whose terms of 
office as Appellate Body members expired on 11  December  2017 and 30  September  2018, respectively, 
continued to complete the disposition of the appeals to which t hey had been assigned before their terms 
expired pursuant to Rule  15 of the Working Procedures for Appellate Review (until the circulation of US – Large 
Civil Aircraft (2nd complaint) (Article 21.5 – EU) on 28  March  2019 in the case of Mr Peter Van den Bos sche and 
until the circulation of Australia – Tobacco Plain Packaging  on 9 June 2020  in the case of Mr Shree Baboo 
Chekitan Servansing).  
6 In particular, no consensus could be reached to launch the selection processes at DSB meetings 
throughout 2019 and th e first half of 2020 due to certain systemic concerns regarding the functioning of the 
Appellate Body. WTO Members discussed such systemic concerns throughout this period, including through the 
informal process conducted under the auspices of the General C ouncil (GC) by Ambassador David Walker of 
New Zealand as Facilitator. In this regard, Ambassador Walker held various consultations and identified 
elements of convergence regarding the Members' concerns and the specifics of how to address such concerns 
in the GC meetings held in July (see WT/GC/M/179 and JOB/GC/220) , October (see WT/GC/M/180 and 
JOB/GC/222) , and December 2019 (see WT/GC/M/181 and JOB/GC/225) . A draft GC decision regarding the 
functioning of the Appellate Body was prepared by Ambassador Walke r based on these elements of 
convergence and introduced for adoption in the GC meeting on 9 -10 December 2019. However, Members were 
not able to reach a consensus to adopt the draft decision (WT/GC/M/181 ). 
7 WT/DSB/M/437.  WT/AB/30  
 
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  vacancies of the Appellate Body. Ten Appellate Body reports resolving as many appeals were 
circulated in 2019 and the first half of 2020 despite these extraordinary ci rcumstances.  
The work of the Appellate Body in 2019 and  the first half of  2020 demonstrates the Appellate Body's 
continued commitment to  the effective and efficient settlement of disputes even under the most 
challenging circumstances. The Appellate Body has been a key achievement of Uruguay Round.   
We remain confident that WTO  Members will take account of that achievement as they discuss the 
way forward.  
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WORLD TRADE ORGANIZATION  
APPELLATE  BODY  
ANNUAL REPORT FOR 2 019-2020 
1  INTRODUCTION  
This Annual Report  summarizes the activities of the Appellate  Body and its Secretariat for the 
year 2019 and the first half of 2020.  
Dispute settlement  in the World Trade Organization (WTO) is regulated by the 
Understanding  on Rules and Proced ures Governing the Settlement of Disputes (DSU), which is 
contained in Annex  2 of the Marrakesh  Agreement Establishing the World Trade Organization 
(WTO  Agreement). Article  3.2 of the DSU identifies the purpose and role of the dispute settlement 
system as follows: "[t] he dispute settlement system of the WTO  is a central element  in providing 
security and predictability to the multilateral trading system." Further, Article  3.2 provides that the 
dispute settlement system "serves to preserve the rights and obli gations of Members under the 
covered agreements, and to clarify the existing provisions of those agreements in accordance with 
customary rules of interpretation of public international law." The dispute settlement system is 
administered by the Dispute Sett lement Body (DSB), which is composed of all WTO  Members.  
A WTO  Member may have recourse to the rules and procedures established in the DSU if it "considers 
that any benefits accruing to it directly or indirectly under the covered agreements are being 
impai red by measures taken by another Member" .8 The DSU procedures apply to disputes arising 
under any of the covered agreements listed in Appendix 1 to the DSU, which include the 
WTO Agreement and all the multilateral agreements annexed to it relating to trade in goods9, trade 
in services10, and the protection of intellectual property rights11, as well as the DSU itself. Pursuant 
to Article  1.2 of the DSU, the special or additional rules and procedures listed in Appendix  2 of the 
DSU prevail over those co ntained in the DSU to the extent that there is  an inconsistency. The 
application of the DSU to disputes under the plurilateral trade agreements annexed to the 
WTO Agreement12 is subject to the adoption of a decision by the parties to each of  these agreemen ts 
setting out the terms for its application to the individual agreement.13 
Proceedings under  the DSU take place in stages. In the first stage, Members are required to hold 
consultations with a view to reaching a mutually agreed solution to the matter in d ispute.14 If these 
consultations fail to produce a mutually agreed solution, the dispute may advance to the adjudicative 
stage in which the complaining Member requests the DSB to establish a panel to examine the 
matter.15 Panelists are chosen by agreement of the parties, based on nominations proposed by the 
Secretariat.16 However, if the parties cannot agree, either party may request the 
WTO Director -General to determine the composition of the panel.17 Panels shall be composed of 
well-qualified governmental  and/or non -governmental individuals  with expertise in international 
trade law or policy.18 In discharging its adjudicative function, a panel is required to " make an 
objective assessment of the matter before it, including an objective assessment of the fac ts 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" .19 The panel pro cess includes written submissions by the main parties 
and also by third parties that have notified their interest in the dispute to the DSB. Panels usually 
hold two meetings with the parties, one of which also includes a session with third  parties. Panels 
set out their factual and legal findings in an interim report that is subject to comments by the parties. 
 
8 Article  3.3 of the DSU.  
9 Annex 1A to the WTO  Agreement . 
10 Annex 1B to the WTO  Agreement . 
11 Annex 1C to the WTO  Agreement.  
12 Annex 4 to the WTO  Agreement.  
13 Appendix 1 to the DSU.  
14 Article  4 of the DSU.  
15 Article  6 of the DSU.  
16 Article  8.6 of the DSU.  
17 Article  8.7 of the DSU.  
18 Article  8.1 of the DSU.  
19 Article  11 of the DSU.  WT/AB/30  
 
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  The Final Report is first issued to the parties and subsequently circulated to all WTO  Members  in the 
three official languages of the WTO  (English, Fr ench, and  Spanish), at which time it is also posted 
on the WTO  website . 
Article  17 of the DSU establishes a standing Appellate  Body. The Appellate  Body is composed of  
seven  members who are each appointed to a four -year term, with a possibility to be reappo inted 
once. The expiration dates of terms are staggered in order to ensure that not all members begin and 
complete their terms at the same time. Members of the Appellate  Body must be persons 
of recognized authority, with demonstrated expertise in law, inte rnational trade, and the subject 
matter of the covered agreements generally. They shall be unaffiliated with any government. 
Moreover, the Appellate  Body membership shall be broadly representative of the Membership of the 
WTO. Appellate  Body members elect a Chair to serve a single term, which can be extended for 
another term . The Chair is responsible for the overall direction of Appellate  Body business. Each 
appeal is heard by a Division of three Appellate  Body members. The process for the selection of 
Divisions is designed to ensure randomness, unpredictability, and  opportunity for all members to 
serve, regardless of their national origin. To ensure consistency and coherence in decision -making, 
Divisions exchange views with the other members of the Appellat e Body before finalizing 
Appellate  Body reports. The Appellate  Body receives legal and  administrative support from its 
Secretariat. The conduct of members of the Appellate  Body and its staff is regulated by the Rules of 
Conduct for the Understanding on Rul es and Procedures Governing the Settlement of Disputes  (Rules 
of Conduct).20 These Rules emphasize that Appellate  Body members shall be independent and 
impartial, avoid any direct or indirect conflict of  interest, and maintain the confidentiality of appell ate 
proceedings.21 
Any party to a dispute, other than WTO Members that were third parties  at the panel stage , 
may appeal a panel  report  to the Appellate  Body. These third parties may, however, participate 
and make written and oral submissions in the appellate proceedings. The appeal is limited to  issues 
of law covered in the panel  report and legal interpretations developed by the panel. 
Appellate  proceedings are conducted in accordance with the procedures established in the DSU and 
the Working Procedu res for Appellate Review  (Working Procedures)22, drawn up by the  
Appellate  Body in consultation with the Chair of the DSB and the Director -General of  the WTO, and 
communicated to WTO  Members. Proceedings involve the filing of written submissions by the 
participants and third participants, as well as an oral hearing. The Appellate  Body report is to be 
circulated within 90 days of the date when the appeal was initiated, and  it is posted on the 
WTO website immediately upon circulation to Members. In its report , the Appellate  Body may 
uphold, modify, or reverse the legal findings and conclusions of a panel.  
Panel and Appellate  Body reports must be adopted by WTO  Members acting collectively through the 
DSB. Under the reverse -consensus rule, a report is adopted un less the DSB decides by consensus 
not to adopt the report.23 Upon adoption, Appellate  Body reports and panel  reports (as  modified by 
the Appellate  Body) become binding on the parties.  
Following the adoption by the DSB of a panel or Appellate  Body report th at includes a finding 
of inconsistency  of a measure of the responding Member with its WTO  obligations, Article  21.3 of  the 
DSU provides that the responding Member should, in principle, comply immediately. However,  where 
immediate compliance is " impracticab le", the responding Member shall have a  "reasonable period of 
time" to implement the recommendations and rulings of the DSB . The "reasonable period of time" 
may be determined by the DSB, by agreement between the parties, or through binding arbitration 
pursuant to Article  21.3(c) of the DSU. In such arbitration, a  guideline for the arbitrator is that the 
reasonable period of time to implement panel or Appellate  Body recommendations should not exceed 
15 months from the date of adoption of the panel or Appella te Body report. However, that time may 
be shorter or longer, depending upon the particular circumstances. Arbitrators have indicated that 
 
20 The Rules of Conduct, as adopted by the DSB on 3  December 1996 (WT/DSB/RC/1), are incorporated 
into the Working Procedures for Appellate Review (WT/AB/W P/6), as Annex II thereto. (See  WT/DSB/RC/2, 
WT/AB/WP/W/2)  
21 Former Appellate  Body members, Secretariat staff, and interns are subject to Post -Employment 
Guidelines, which facilitate compliance with relevant obligations of conduct following a term of servi ce 
(WT/AB/22).  
22 Working Procedures for Appellate Review, WT/AB/WP/6, 16  August  2010.  
23 Articles  16.4 and 17.14 of the DSU.  WT/AB/30  
 
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  the reasonable period of time shall be the shortest time possible in the implementing Member's legal 
system.  
Where the parties disagree "as to the existence or consistency with a covered agreement 
of measures taken to comply", the matter may be referred to the original panel in compliance 
proceedings under Article  21.5 of the DSU. In these Article  21.5 compliance proceedi ngs, a 
panel  report is issued and may be appealed to the Appellate  Body. Upon their adoption by the DSB, 
panel and Appellate  Body reports in Article  21.5 compliance proceedings become binding on 
the parties.  
If the responding Member does not bring its WTO -inconsistent measure into compliance with its 
obligations under the covered agreements within the reasonable period of time, the complaining 
Member may request negotiations with the responding Member with a v iew to reaching an 
agreement on compensation as a temporary and voluntary alternative to full compliance. 
Compensation is subject to acceptance by the complaining Member  and must be consistent with the 
WTO agreements. If no satisfactory compensation is agr eed upon, the complaining Member may 
request authorization from the DSB, pursuant to Article  22 of the DSU, to suspend the application 
of concessions or other obligations under the WTO  agreements to the responding Member. The level 
of the suspension of con cessions or other obligations authorized by the DSB shall be equivalent to 
the level of the nullification or impairment resulting from non -compliance with the recommendations 
and rulings of the DSB . The responding Member may request arbitration under Artic le 22.6 of the 
DSU if it objects to the level of suspension proposed or considers that the principles and procedures 
concerning the suspension of concessions or other obligations have not been followed. In principle, 
the suspension of concessions or other obligations must relate to the same trade sector or agreement 
as the measure found to be inconsistent. However, if this is impracticable or ineffective for the 
complaining Member, and if circumstances are serious, the complaining Member may seek 
authorizat ion to suspend concessions with respect to other sectors or agreements. The a rbitration 
under Article  22.6 shall be carried out by the original panel, if its Members are available. 
Compensation and the suspension of concessions or  other obligations are tem porary measures; 
neither is to be preferred to full implementation of a  recommendation to bring a measure into 
conformity with the covered agreements.24 
A party to a dispute may request good offices, conciliation, or mediation as alternative methods of 
dispute resolution at any stage of dispute settlement proceedings.25 In addition, under Article  25 
of the DSU, WTO  Members may have recourse to arbitration as an alternative to the regular 
procedures set out in the DSU.26 Recourse to arbitration, including  the procedures to be followed in 
such arbitration proceedings, is subject to mutual agreement of the parties.27 
  
 
24 Article  22.1 of the DSU.  
25 Article  5 of the DSU.  
26 There has been only one recourse to Article  25 of the DSU, and it was not in li eu of panel or 
Appellate  Body proceedings. Rather, the purpose of that arbitration was to set an amount of compensation 
pending full compliance by the responding Member. (See Award of the Arbitrator, US – Section  110(5) Copyright 
Act (Article  25)) 
27 Articles 21 and 22 of the DSU apply mutatis mutandis  to decisions by arbitrators.  WT/AB/30  
 
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  2  COMPOSITION OF THE APPELLATE  BODY  
The Appellate  Body is a standing body normally composed of seven members, each to be appointed 
by the DSB f or a term of four years with the possibility of being reappointed once for another 
four-year term.  
In January 2019, the Appellate  Body was composed of three members.28 On 10  December  2019, the 
terms of office of two Appellate  Body members, Messrs Ujal Sing h Bhatia and Thomas R.  Graham, 
expired. The selection processes for the appointment of new Appellate  Body members were 
discussed at DSB meetings throughout 2019 and year -to-date 202029, but WTO Members were not 
able to reach a consensus to launch and fill the outstanding vacancies.  
At all 11 regular DSB meetings held in 2019 and three regular DSB meetings during the first half of 
2020 (up to and including the DSB meeting held on 29 June 2020), several revised versions30 of the 
proposal regarding the select ion processes for Appellate  Body members, first introduced at the 
DSB meeting on 22  November 2017 on behalf of 52  WTO Members31, were submitted and discussed. 
All versions of these proposals were substantively the same in that they provided for selection 
processes to appoint Appellate  Body members for the four vacancies that have been outstanding 
since the beginning of 2019 (these vacancies had arisen as a result of the expiry of the terms of 
office of Messrs Ricardo Ramírez -Hernández, Peter  Van den Bossche, and Shree Baboo Chekitan 
Servansing, and the resignation of Mr Hyun Chong Kim). In addition,  the fifth and sixth vacancies 
arose upon the expiry of the second terms of office of Messrs Ujal Singh Bhatia and Thomas 
R. Graham on 10  December 2019 . The proposal regarding the processes for the selection of 
Appellate  Body members introduced on 24  June 2019 and thereafter provided for selection 
processes to appoint Appellate  Body members for Messrs Ujal Singh Bhatia and Thomas R.  Graham 
in addition to  the four outstanding vacancies. The proposals were made on behalf of a growing 
number of proponents, with 52  WTO Members supporting the first proposal at the DSB meeting on 
22 November  2017, increasing to 71  Members at the DSB meeting on 28  January  201932, to 
118 Members at the DSB meeting on 18  December 201933, and to 122 Members at the DSB meeting 
on 28 February  2020.34 The proponents of the proposals stressed that the vacancies "seriously 
affect[] [the Appellate  Body's] workings and the overall dispute settlement system against the best 
interest of [the] Members" and that "WTO  Members have a responsibility to safeguard and preserve 
the Appellate  Body, the dispute settlement and the multilateral trading system." The proponents 
then proposed to launch sele ction processes for all the vacancies, establish a Selection Committee, 
allow Members to submit nominations of candidates, and request the Selection Committee to make 
a recommendation within a certain period. However, no consensus could be reached to launc h the 
selection processes at DSB  meetings throughout 2019 and the first quarter of 2020. During that 
period, Members also discussed a number of substantive and systemic concerns regarding the 
 
28 The second term of Mr Peter Van den Bossche expired on 11  December  2017. On 24  November  2017, 
the Chair of the Appellate Body notified by letter the Chair of the DSB that, in acc ordance with Rule  15 of the 
Working Procedures for Appellate Review (Working Procedures), the Appellate Body had authorized Mr Van den 
Bossche to complete the disposition of the appeals to which he had been assigned before his term expired. 
Mr Van den Boss che's last appeal under Rule  15 (US – Large Civil Aircraft (2nd complaint) (Article  21.5 – EU)) 
ended with the circulation of the Appellate Body report on 28  March  2019.  
The term of office of Mr Shree Baboo Chekitan Servansing expired on 30 September 2018. On 
28 September 2018, the Chair of the Appellate  Body notified by the letter the Chair of the DSB that, in 
accordance with Rule  15 of the Working Procedures for Appellate Review, the Appellate Body had authorized 
Mr Servansing to complete t he disposition of the appeals to which he had been assigned before the expiry of 
his term on 30 September 2018. Mr Servansing carried out his duties under Rule  15 throughout 2019.  
29 See, for example, WT/DSB/M/425, WT/DSB/M/426, WT/DSB/M/428, WT/DSB/M/429, 
WT/DSB/M/430, WT/DSB/M/431, WT/DSB/M/433, WT/DSB/M/434, WT/DSB/M/436 , WT/DSB/M/437, 
WT/DSB/M/438, WT/DSB/M/440, and WT/DSB/M/441  (29 June 2020).  
30 The revised versions of the proposal discussed during the DSB meetings in 2019 and the first half of 
2020 are  WT/DSB/W/609/Rev.7; WT/DSB/W/609/Rev.8; WT/DSB/W/609/Rev.10; WT/DSB/W/609/Rev.11; 
WT/DSB/W/609/Rev.12; WT/DSB/W/609/Rev.13; WT/DSB/W/609/Rev.14; WT/DSB/W/609/Rev.15; 
WT/DSB/W/609/Rev.16; WT/DSB/W/609/Rev.17 ; and WT/DSB/W/609/Rev.18.  
31 WT/DSB/M/404 and WT/DSB/W/609 . 
32 WT/DSB/M/425.  
33 WT/DSB/W/609/Rev.15.  
34 WT/DSB/W/609/Rev.17  WT/AB/30  
 
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  functioning of the Appellate  Body, including through the informa l process conducted under the 
auspices of the General Council by Ambassador David Walker of New Zealand as Facilitator.35 
As a result of the above events, the Appellate  Body was composed  in 2019  of three members until 
the expiry of the second terms of offi ce of Messrs Ujal Singh Bhatia and Thomas R.  Graham on 
10 December  2019. Thereafter, it was composed of one remaining member for the remainder of the 
year as shown in Table 1 below:  
Table 1: Composition of the Appellate  Body during 2019 and the first half of 2020  
Name  Nationality  Term(s) of office  
Ujal Singh Bhatia*  India 2011-2015 
2015-2019 
Thomas R. Graham*  United  States  2011-2015 
2015-2019 
Hong Zhao  China 2016-2020 
* The terms of Ujal Singh Bhatia and Thomas R.  Graham as Appellate  Body members ended 
on 10 December 2019. Pursuant to Rule  15 of the Working Procedures, they were authorized to 
complete the disposition of those appeals that had been assigned to them while being members 
of the Appellate  Body and for which hearings were held before their terms of office expired .36 
On 12  December  2018, pursuant to Rule  5.1 of the Working Procedures, the members of the 
Appellate  Body elected M adame  Zhao Hong to serve as Chair of the Appellate  Body as of 
1 January  2019 until 30  June 2019, and Mr Thomas R. Graham as Chair from 1  July 2019 to 
December 2019.37 On 13  December  2019, the Appellate  Body communicated that M adame  Zhao 
Hong has been elected to serve as Chair of the Appellate  Body as of 1  December  2019 until 
30 November  2020 pursuant to Rule  5.1 of the Working Procedures.38 
Biographical information about the members of the Appellate  Body is provided in Annex  3. A list of 
former Appellate  Body members and Chairs is provided in Annex  4. 
The Appellate  Body receives legal and administrative support from the Appellate  Body Secretariat, 
in accordance with Article  17.7 of the DSU. As of 31 December  2019, the Secretariat com prised 
19 lawyers, 1 administrative assistant, and 4 support staff  posts , and Werner  Zdouc was the 
Director.  
  
 
35 The concerns discussed are contained in the following WTO documents: WT/DSB/M/425, 
WT/DSB/M/426, WT/DSB/M/428, WT/DSB/M/429, WT/DSB/M/430, WT/DSB/M/431, WT/DSB/M/433, 
WT/DSB/M/434, WT/DSB/M/436 , WT/DSB/M/437, WT/DSB/M/438, WT/DSB/M/440, and WT/DSB/M/441 
(29 June 2020).  Reports of Ambassador Walker regarding the informal process on matters related to the 
functioning of the Appellate Body conducted under the auspice of the General Council are contained in the 
following WTO documents: WT/JOB/215; WT/JOB/217; WT/JOB/220; WT/JOB/222, and; WT/JOB/225. As a 
result of the informal process, a draft General Council decision regarding the functioning of the Appellate Body 
was prepared and introduced for adoption in the General Council meeting on 9-10 December 2019. Ho wever, 
Members were not able to reach a consensus to adopt the draft decision (WT/GC/M/ 181). 
36 On 3 December 2019, the Chair of the Appellate Body notified by the letter the Chair of the DSB that, 
in accordance with Rule  15 of the Working Procedures for Ap pellate Review, the Appellate Body had authorized 
Messrs Ujal Singh Bhatia and Thomas R.  Graham  to complete the disposition of the appeals to which they had 
been assigned before the expiry of their terms on 10  December  2019 and for which hearings had been held 
before that date. Subsequently, the participants and third participants in the appeals concerned were informed 
of the same.  
37 WT/DSB/77.  
38 WT/DSB/78.  WT/AB/30  
 
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  3  APPEALS  
Pursuant to Rule  20(1) of the Working Procedures and Article  16(4) of the DSU, an appeal is 
commenced by a party to the dispute giving wr itten notice to the DSB and filing a Notice of Appeal 
with the Appellate  Body Secretariat. Rule  23(1) of the Working Procedures allows a party to the 
dispute other than the initial appellant to join the appeal, or appeal on the basis of other alleged 
errors, by filing a Notice of Other Appeal within five days of the filing of the Notice of Appeal.  
Eight panel reports concerning seven matters were appealed during 2019 and the first half of 2020.39 
The Appellate  Body's work on one appeal filed in 2017 was com pleted, and its work on three appeals 
filed in 2018 continued throughout 2019 and the first quarter of 2020. Four of the appeals filed 
during this period related to compliance proceedings, while all remaining disputes related to original 
proceedings. "Othe r appeals" were filed pursuant to Rule  23(1) of the Working  Procedures in two of 
the eight new appeals. Table  2 sets out further information regarding the appeals filed in and pending 
throughout 2019 and the first half of 2020. Further information on the n umber of appeals filed each 
year since 1996 is provided in Annex  5. 
The percentage of panel reports that have been appealed from 1996 to the first half of 2020 is 
approximately 67%. A  breakdown of the percentage of panel reports appealed each year is provided 
in Annex  6. 
Table 2: Appeals pending  
Panel report appealed  Date of appeal  Appellanta Document  
symbol  Other  
appellantb Document  
symbol  
EU – Energy Package  21 September  2018 EU WT/DS476/6  Russia  WT/DS476/7  
Colombia – Textiles 
(Article  21.5 – Colombia) / 
Colombia – Textiles 
(Article  21.5 – Panama)  20 November  2018 Panama  WT/DS461/28  Colombia  WT/DS461/29  
India – Iron and Steel 
Products  14 December  2018 India WT/DS518/8  Japan  WT/DS518/9  
Thailand – Cigarettes 
(Philippines) (Article  21.5 – 
Philippines)  9 January  2019 Thailand  WT/DS371/27  --- --- 
Thailand – Cigarettes 
(Philippines) (Article  21.5 – 
Philippines II)  9 September  2019 Thailand  WT/DS371/30  --- --- 
US – Pipes and Tubes 
(Turkey)  25 January  2019 US WT/DS523/5  Turkey  WT/DS523/6  
US – Differential Pricing 
Methodology  4 June 2019 Canada  WT/DS534/5  --- --- 
US – Renewable Energy  15 August  2019 US WT/DS510/5  India WT/DS510/6  
India – Export Related 
Measures  19 November  2019 India WT/DS541/7  --- --- 
 
39 This includes the Panel  Report in US – Carbon Steel (India) (Article  21.5 – India)  (DS436), for which 
the United  States notified of its decision to appeal pursuant to Article  16 of the DSU on 18  December  2019 
(WT/DS436/21). On 14  January  2020, India and the United  Sates jointly communicated to the DSB that, 
despite the decision by the U nited States to appeal, the United  States did not file a notice of appeal or an 
appellant submission because no Division of the Appellate Body can be established to hear the appeal at the 
time of the communication. For this reason, India and the United  States jointly notified their understanding 
that the United  States will submit a notice of appeal and an appellant submission once a Division can be 
established and that India may file its own appeal at that point of time (WT/DS436/22).  WT/AB/30  
 
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  Panel report appealed  Date of appeal  Appellanta Document  
symbol  Other  
appellantb Document  
symbol  
EC and certain member 
States – Large Civil Aircraft 
(Article  21.5 – EU) 6 December  2019 EU WT/DS316/43  --- --- 
US – Carbon Steel (India) 
(Article  21.5 – India)c 18 December  2019 US WT/DS436/21  --- --- 
a Pursuant to Rule 20(1) of the Working Procedures . 
b Pursuant to Rule 23(1) of the Working Procedures . 
c The United  States has notified of its intention to appeal the Panel  Report  in this case but did not file a 
notice of appeal or an appellant submission because at this time no Division of the Appellate  Body can 
be established to hear this appeal (WT/DS436/22).  
Appellate  Body Reports  
Ten Appellate  Body reports concerning nine matt ers were circulated during 2019 and the first half 
of 2020, the details of which are summarized in Table  3. As of the end of the first half of 2020, the 
Appellate  Body had circulated a total of  169 reports.40 
Table 3: Appellate  Body  reports circulated between the beginning of 2019 and the first 
half of 2020  
Case  Document symbol  Date circulated  Date adopted  
by the DSB  
US – Large Civil Aircraft 
(2nd complaint) (Article  21.5 – EU) WT/DS353/AB/RW  28 March  2019 11 April 2019 
Korea – Radionuclides  WT/DS495/AB/R  11 April 2019 26 April 2019 
US – Countervailing Measures 
(China) (Article  21.5 – China)  WT/DS437/AB/RW  16 July 2019 15 August  2019 
Korea – Pneumatic Valves  WT/DS504/AB/R  10 September  2019 30 September  2019 
Ukraine – Ammonium Nitrate  WT/DS493/AB/R  12 September  2019 30 September  2019 
Morocco – Hot-Rolled Steel  WT/DS513/AB/R  10 December  2019 8 January  2020 
Russia – Railway Equipment  WT/DS499/AB/R  4 February  2020 5 March  2020 
US – Supercalendered Paper  WT/DS505/AB/R  6 February  2020 5 March  2020 
Australia – Tobacco Plain 
Packaging (Honduras)  WT/DS435/AB/R  9 June 2020  29 June 2020  
Australia – Tobacco Plain 
Packaging (Dominican  Republic)  WT/DS441/AB/R  9 June 2020  29 June 2020  
 
  
 
40 Further details rega rding the circulated Appellate  Body reports, by year of circulation, are provided in 
Annex  8: Table II.  WT/AB/30  
 
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  Table  4 below shows which WTO  agreements were addressed in the Appellate  Body reports 
circulated in 2019  and the first half of 2020.  
Table  4: WTO  Agreements addressed in Appellate  Body reports circulated between the 
beginning of 2019 and the first half of 2020  
Case Document symbol  WTO agreements addressed  
US – Large Civil Aircraft (2nd 
complaint) (Article  21.5 – EU) WT/DS353/AB/RW  SCM Agreement  
DSU 
Korea – Radionuclides  WT/DS495/AB/R  SPS Agreement  
DSU 
US – Countervailing Measures 
(China) (Article  21.5 – China)  WT/DS437/AB/RW  SCM Agreement  
DSU 
Korea – Pneumatic Valves  WT/DS504/AB/R  Anti-Dumping  Agreement  
DSU 
Ukraine – Ammonium Nitrate  WT/DS493/AB/R  Anti-Dumping  Agreement  
DSU 
Morocco – Hot-Rolled Steel*  WT/DS513/AB/R  --- 
Russia – Railway Equipment  WT/DS499/AB/R  TBT Agreement  
DSU 
US – Supercalendered Paper  WT/DS505/AB/R  SCM Agreement  
DSU 
Australia – Tobacco Plain 
Packaging (Honduras)  WT/DS435/AB/R  
TBT Agreement  
TRIPS  Agreement  
DSU Australia – Tobacco Plain 
Packaging (Dominican  Republic)  WT/DS441/AB/R  
* In Morocco – Hot-Rolled Steel , the appeal was withdrawn , and the Appellate  Body report describes the 
Panel's findings and summarizes the procedural history of the case, but it does not address the 
substantive legal issues raised in the appeal.  
The findings and conclusions contained in the Appellate  Body reports circulated during 2019 and the 
first half of 2020 are summarized below.  
3.1  Appellate  Body  Report, US – Large Civil Aircraft (2nd complaint) (Article  21.5 – EU), 
WT/DS353 /AB/RW  
This case concerned the compliance dispute arising from a challenge brought by the European  Union  
more than 10 years ago against subsidies provided by the United  States  to large civil aircraft (LCA), 
namely, Boeing LCA. The original panel and the Appellate  Body ruled in favour of many of the claims 
by the European  Union , and those reports were adopted by the DSB in March 2012. The 
United  States was required to comply with those rulings by 23  September  2012. Following a 
complaint brought by the European  Union , a compl iance Panel found, in a report circulated on 
9 June 2017, that the United  States  continued to cause adverse effects in the form of significant lost 
sales, and a threat of impedance, within the meaning of Articles 5(c) and 6.3(a) -(c) of the Agreement 
on Sub sidies and Countervailing Measures  (SCM Agreement ) with respect to the single -aisle LCA 
market in the post -implementation period (after September  2012). Specifically, the Panel made the 
following findings in its Report.  
With respect to whether certain meas ures, and claims with regard to certain measures, are outside 
the Panel's terms of reference for purposes of Article  6.2 of the DSU or the scope of these compliance 
proceedings:  
a. The European  Union 's claims under Articles 3.1(a) -(b) and 3.2 of the SCM  Agreement , and 
under Article  III of the General  Agreement on Tariffs and Trade 1994 ( GATT  1994), are 
within the Panel's terms of reference; but the South  Carolina Phase II measures, and the 
Washington State tax measures, as amended by SSB 5952, are outside the  Panel's terms 
of reference, owing to the failure of the European  Union's panel request to meet the 
requirements of Article  6.2 of the DSU with respect to such measures.  WT/AB/30  
 
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  b. The following measures are within the scope of these compliance proceedings:  
i. the Washi ngton State business and occupation ( B&O) tax credits for 
preproduction/aerospace product development including amendments thereto; the 
Washington State B&O tax credit for property taxes and leasehold excise taxes 
including amendments thereto; the Washingt on State sales and use tax exemptions 
for computer software, hardware, and peripherals; and the City of Everett B&O tax 
rate reduction;  
ii. United States Department of Defense ( USDOD ) procurement contracts funded through 
the 23 original  research, development, test, & evaluation  (RDT&E) programme  
elements;  
iii. USDOD procurement contracts HR0011 -06-C-0073 and HR -0011-08-C-0044 SOW and 
assistance instruments HR0011 -06-2-0008, FA8650 -07-2-7716, and HR0011 -10-2-
0001 funded through the Materials Processing Technology Project of the Materials and 
Biological Technology programme element;  
iv. the provision of access to USDOD equipment and employees with respect to the 
post-2006 USDOD procurement contracts and assistance instruments funded under 
the 23 or iginal RDT&E programme elements and the "additional" programme elements 
that the Panel found to be within the scope of these proceedings;  
v. the Federal Aviation Administration ( FAA) aeronautics R&D measure; and  
vi. the South Carolina Project Gemini measures and  Project Emerald measures.  
c. The following measures are outside the scope of these compliance proceedings:  
i. the Washington State Joint Center for Aerospace Technology Innovation measure;  
ii. Air Force Contract F19628 -01-D-0016 funded under the DRAGON Project of t he 
Airborne Warning and Control System (PE 0207417F) programme element; Air Force 
Contract FA8625 -11-C-6600 funded under the KC -46, Next Generation Aerial Refueling 
Aircraft (PE 0605221F) programme element; and measures funded under the 
Multi-Mission Marit ime Aircraft (P -8A) (PE 0605500N) programme element, including 
Navy contracts N00019 -04-C-3146, N00019 -09-C-0022, and N00019 -12-C-0112; and  
iii. the provision of access to USDOD equipment and employees with respect to the 
pre-2007 NASA procurement contracts an d USDOD assistance instruments funded 
under the 23 original RDT&E programme elements.  
d. The European  Union  is precluded from bringing claims under Articles 3.1(a) and 3.2 of the 
SCM Agreement  against the following four original Washington State tax measures 
enacted under HB 2294: (i)  the Washington State B&O tax rate reduction; (ii)  the 
Washington State B&O tax credits for preproduction/aerospace product development 
including amendments thereto ; (iii)  the Washington State B&O tax credit for property 
taxes i ncluding amendments thereto ; and (iv) the Washington State sales and use tax 
exemptions for computer software, hardware, and peripherals.  
e. The European  Union  is precluded from bringing claims under Articles 3.1(b) and 3.2 of the 
SCM Agreement , and under Artic le III:4 of the GATT  1994, with respect to the following 
four original Washington State tax measures enacted under HB 2294: (i)  the Washington 
State B&O tax rate reduction; (ii)  the Washington State sales and use tax exemptions for 
computer software, hardw are, and peripherals; (iii)  the Washington State B&O tax credits 
for preproduction/aerospace product development i ncluding amendments thereto ; and 
(iv) the Washington State B&O tax credit for property taxes i ncluding amendments 
thereto ; as well as the Foreign Sales Corporation/Extraterritorial Income ( FSC/ETI ) 
measures.  WT/AB/30  
 
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  f. The European  Union  is precluded from bringing claims under Articles 3.1(a) -(b) and 3.2 
of the SCM  Agreement , and under Article  III:4 of the GATT  1994, with respect to: (i) the 
City of Everet t B&O tax rate reduction, the tax abatements related to the City of Wichita 
industrial revenue bonds  (IRBs), and the pre -2007 NASA Space Act Agreements and 
USDOD procurement contracts at issue in the original proceedings; and (ii) the pre -2007 
NASA procure ment contracts and USDOD assistance instruments at issue in the original 
proceedings, as amended by the respective Boeing Patent Licence Agreements.  
With respect to whether the United  States  has failed to withdraw the subsidy within the meaning of 
Article  7.8 of the SCM  Agreement :  
a. With regard to the pre -2007 NASA and USDOD aeronautics R&D subsidies that were the 
subject of the DSB recommendations and rulings, the European  Union  established that the 
modifications made by the United  States  through the Boeing  Patent Licence Agreements 
to the terms of the pre -2007 NASA procurement contracts and USDOD assistance 
instruments do not constitute a withdrawal of the subsidy within the meaning of Article  7.8 
of the SCM  Agreement  and that the United  States , having taken no action with respect to 
pre-2007 Space Act Agreements, has failed to withdraw the subsidy within the meaning 
of Article  7.8 of the SCM  Agreement . 
b. With regard to the post -2006 measures of the United  States  challenged in these 
proceedings, the  European  Union  established that the following measures involve specific 
subsidies within the meaning of Articles 1 and 2 of the SCM  Agreement , and that by 
granting or maintaining these specific subsidies after the end of the implementation 
period, the Uni ted States  has failed to withdraw the subsidy within the meaning of 
Article  7.8 of the SCM  Agreement : 
i. certain transactions between NASA and Boeing pursuant to the post -2006 NASA 
procurement contracts, cooperative agreements, and Space Act Agreements, with 
respect to which the Panel was unable to estimate the amount of the subsidy on the 
basis of the evidence on the record, but considered the United  States ' estimate of the 
amount of the financial contribution between 2007 and 2012 to be a cr edible estimate;  
ii. certain transactions between USDOD and Boeing pursuant to post -2006 USDOD 
assistance instruments, with respect to which the Panel was unable to estimate the 
amount of the subsidy on the basis of the evidence on the record, but considered t he 
United  States ' estimate of the amount of the financial contribution between 2007 
and 2012 to be a credible estimate;  
iii. transactions pursuant to the FAA -Boeing Continuous Lower Energy Emissions, and 
Noise ( CLEEN ) Agreement with respect to which the Panel w as unable to estimate the 
amount of the subsidy on the basis of the evidence on the record, but considered the 
European  Union 's estimate of the amount of the financial contribution between 2010 
and 2014 to be a credible estimate;  
iv. Washington State B&O tax r ate reduction for the aerospace industry between 2013 
and 2015;  
v. Washington State B&O tax credits for preproduction/aerospace product development, 
as amended by section 7 of SSB 6828 between 2013 and 2015;  
vi. Washington State B&O tax credit for property taxes,  as amended by HB 2466 to include 
leasehold excise taxes  between 2013 and 2015;  
vii. Washington State sales and use tax exemptions for computer software, hardware, and 
peripherals between 2013 and 2015;  
viii. City of Everett B&O tax rate reduction between 2013 and 20 15; 
ix. payments made by the State of South Carolina pursuant to commitments made in the 
Project Gemini Agreement to compensate Boeing for a portion of the costs incurred by WT/AB/30  
 
- 20 - 
 
  Boeing with respect to the construction of the Gemini facilities and infrastructure 
through air hub bond proceeds;  
x. the State of South Carolina property tax exemption for Boeing's large cargo freighters 
between 2013 and 2015; and  
xi. the State of South Carolina sales and use tax exemptions for aircraft fuel, computer 
equipment, and construction materials between 2013 and 2015.  
c. The European  Union  failed to establish that the following measures involve specific 
subsidies within the meaning of Articles 1 and 2 of the SCM  Agreement , and therefore 
failed to establish that, by granting or maintaining t hese specific subsidies after the end 
of the implementation period, the United  States  has failed to withdraw the subsidy within 
the meaning of Article  7.8 of the SCM  Agreement : 
i. certain transactions between USDOD and Boeing pursuant to pre -2007 and post -2006 
USDOD procurement contracts, on the grounds that, assuming arguendo  that these 
measures were to involve financial contributions within the meaning of 
Article  1.1(a)(1) of the SCM  Agreement , they do not confer a benefit on Boeing within 
the meaning of Art icle 1.1(b) of the SCM  Agreement ; 
ii. tax exemptions and exclusions under the FSC/ETI legislation and successor legislation, 
on the grounds that the European  Union  has failed to establish that Boeing actually 
received the FSC/ETI tax benefits after 2006, and t hat the measure therefore involves 
a financial contribution within the meaning of Article  1.1(a)(1)(ii) of the 
SCM Agreement;  
iii. tax abatements provided through IRBs issued by the City of Wichita, on the grounds 
that these tax abatements are no longer specifi c within the meaning of Article  2.1(c) 
of the SCM  Agreement and, as a result, the measure is no longer subject to the 
provisions of the SCM  Agreement on actionable subsidies;  
iv. the State of South Carolina's sublease of the Project Site, on the grounds that t he 
European  Union  has failed to establish that the sublease involves a subsidy to Boeing;  
v. the State of South Carolina's provision of Gemini and Emerald facilities and 
infrastructure, on the grounds that the European  Union  has failed to establish that 
these  measures involve financial contributions within the meaning of 
Article  1.1(a)(1)(iii) of the SCM  Agreement;  
vi. the State of South Carolina's fee -in-lieu-of taxes (FILOT) arrangements, set forth in 
the Boeing FILOT Agreement and Project Emerald FILOT Agreemen t, on the grounds 
that these arrangements are not specific within the meaning of Article  2 of the 
SCM Agreement;  
vii. the State of South Carolina's corporate income tax credits in connection with the 
designation of the Project Gemini and Project Emerald portion s of the Project Site as 
part of the same multi -county industrial park (MCIP), on the grounds that the tax 
credits are not specific within the meaning of Article  2 of the SCM  Agreement ; 
viii. the State of South Carolina's Income Allocation and Apportionment Agre ement, on the 
grounds that the European  Union  has failed to establish that the agreement involves 
a financial contribution within the meaning of Article  1.1(a)(1)(ii) of the 
SCM Agreement; and  
ix. the State of South Carolina's workforce recruitment, training, and development 
programme, on the grounds that the programme is not specific within the meaning of 
Article  2 of the SCM  Agreement . WT/AB/30  
 
- 21 - 
 
  With respect  to whether the United  States  has failed to take appropriate steps to remove the adverse 
effects within the meaning of Article  7.8 of the SCM  Agreement : 
d. The European  Union  failed to establish that the effects  of certain aeronautics R&D 
subsidies and other subsidies are a genuine and s ubstantial cause of significant lost sales, 
significant price suppression, impedance of imports to the United  States  market or 
impedance of exports to various third country markets, or threats of any of the foregoing, 
within the meaning of Articles 5(c) an d 6.3(a), (b), and (c) of the SCM  Agreement  with 
respect to the A350XWB in the post -implementation period.  
e. The European  Union  failed to establish that the original adverse effects of the pre -2007 
aeronautics R&D subsidies with respect to the A330 and Origi nal A350 continue in the 
post-implementation period as significant price suppression of the A330 and A350XWB, 
significant lost sales of the A350XWB, or a threat of impedance of exports of the A350XWB 
in the twin -aisle LCA market, within the meaning of Arti cles 5(c) and 6.3(a), (b), and (c) 
of the SCM  Agreement  in the post -implementation period.  
f. The European  Union  established that the effects of the Washington State B&O tax rate 
reduction are a genuine and substantial cause of significant lost sales within t he meaning 
of Articles 5(c) and 6.3(c) of the SCM  Agreement  of the A320neo and A320ceo families of 
LCA in the single -aisle LCA market, with respect to the sales campaigns for Fly Dubai in 
2014, Icelandair in 2013, and Air Canada in 2013, in the post -implem entation period.  
g. The European  Union  established that the effects of the Washington State B&O tax rate 
reduction are a genuine and substantial cause of a threat of impedance of imports of the 
A320ceo to the United  States  single -aisle LCA market, and a threat of impedance of 
exports of Airbus  single -aisle LCA in the United Arab Emirates third country market, within 
the meaning of Articles 5(c) and 6.3(a) and (b) of the SCM  Agreement in the 
post-implementation period.  
h. The European  Union  failed to establish that the effects of the pre -2007 aeron autics R&D 
subsidies and the post -2006 subsidies are a genuine and substantial cause of significant 
price suppression of the A320neo or A320ceo, impedance of imports of the A320neo or 
A320ceo to the United  States  market, or displacement and impedance of ex ports of the 
A320neo or A320ceo to the third country markets of Australia, Brazil, Canada, Iceland, 
Indonesia, Malaysia, Mexico, Norway, Russia, and Singapore, within the meaning of 
Articles 5(c) and 6.3(a), (b), and (c) of the SCM  Agreement , or threats of  any of the 
foregoing, in the post -implementation period.  
With respect to the European  Union 's claims under Articles 3.1 and 3.2 of the SCM  Agreement , and 
Article  III:4 of the GATT  1994, the Panel found that the European  Union  failed to establish that the 
subsidies are inconsistent with these provisions.  
In light of the foregoing, the Panel concluded that, by continuing to be in violation of Articles  5(c) 
and 6.3(a), (b), and (c) of the SCM  Agreement , the United  States  has failed to comply with the 
DSB recommendations and rulings and, in particular, the obligation under Article  7.8 of the 
SCM Agreement to "take appropriate steps to remove the adverse effects or … withdraw the 
subsidy". The Panel accordingly found that, to the extent that the United  States  has failed to comply 
with the DSB recommendations and rulings in the original dispute, those recommendations and 
rulings remain operative.  
3.1.1   United  States ' claim s relating to the Panel's terms of reference  
On appeal, the United  States  requested reversal of the  Panel's finding that its terms of reference 
included the European  Union 's claims that the USDOD procurement contracts were financial 
contributions that confer a benefit. The United  States argued that the Panel erred in allowing the 
European  Union  to reass ert in th ese compliance  proceeding s claims that had been rejected in the 
original proceeding s. In particular, the United  States  argued that by not appealing in the original 
proceedings the panel's finding that the USDOD procurement contracts were purchases of services , 
the European  Union  bore responsibility for the failure to achieve a definitive resolution of the issue WT/AB/30  
 
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  in the ori ginal proceedings. The European  Union  should thus not have been entitled to pursue the 
claims at issue in these compliance proceedings.  
The App ellate  Body noted that it had previously addressed limitations concerning the claims that 
may be asserted in com pliance proceedings  pursuant to Article  21.5 of the DSU. In particular, the 
Appellate  Body highlighted the distinction drawn between new claims asserted for the first time in 
compliance proceedings and claims pursued in original proceedings and reasserted  in compliance 
proceedings. With respect to claims reasserted in compliance proceedings, the Appellate  Body 
recalled that compliance proceedings may not be used to "re -open" issues decided on the merits in 
the original proceedings, because that would allow a party a "second chance" to reargue a claim that 
has been decided in an adopted report. At the same time, the Appellate  Body noted that it had 
treated differently cases in which claims against aspects of a measure were not decided on the 
merits in the ori ginal proceedings. In particular, the Appellate  Body has entertained in compliance 
proceedings claims  that had been raised in original proceedings but on which no ruling on the merits  
had been rendered.  
Turning then to the specific claims at issue in these  proceedings, the Appellate  Body found that the 
Panel had not erred in admitting the European  Union's claims at issue. The Appellate  Body agreed 
with the Panel that the question of whether the European  Union could properly reassert these claims  
in the comp liance proceedings depended on whether there had been a decision on the merits of 
those claims in the original proceedings.  
The Appellate  Body rejected the United  States ' contention that the European  Union  must be barred 
from pursuing claims relating to the USDOD procurement contracts in these compliance proceedings 
because the failure to achieve a definitive resolution in the original proceedings must be "laid at the 
feet" of the European  Union . The Appellate  Body explained that it had not re lied on "fault" or the 
lack of it as a criterion to determine whether claims fall within the scope of Article  21.5 proceedings. 
Instead, the Appellate  Body had focused on whether certain claims were or were not decided on the 
merits in the original proceed ings and were thus covered by the recommendations and rulings of the 
DSB. Thus, whether the European  Union  bore responsibility for the lack of resolution of the claims 
at issue in the original proceedings either by failing to request that the Appellate  Body complete the 
legal analysis or by requesting that the Appellate  Body not complete the legal analysis was not 
determinative for whether claims relating to the USDOD procurement contracts  fell within the Panel's 
terms of reference.  
Accordingly, the Appella te Body upheld the Panel's finding that the European  Union 's claims relating 
to the USDOD procurement contracts were within its terms of reference.  
3.1.2   European  Union 's claims relating to the Panel's findings concerning the USDOD 
procurement contracts  
The Euro pean Union  argued that the Panel failed to make an objective assessment of the matter 
under Article  11 of the DSU in characterizing the payments and access to USDOD facilities, 
equipment, and employees provided to Boeing through the USDOD procurement contr acts as 
"purchases of services" for purposes of Article  1.1(a)(1) of the SCM  Agreement. In the 
European  Union's view, had the Panel properly assessed the evidence before it, it would have found 
that the USDOD procurement contracts establish a joint -venture -type relationship in which USDOD 
provides financial contributions to Boeing akin to equity infusions, and in which USDOD provides 
Boeing with goods and services.  
The Appellate  Body noted that, in assessing whether the USDOD procurement contracts constitut e 
financial contributions, the Panel in these proceedings examined "the relevant characteristics of the 
USDOD procurement contracts with a view to determining whether, like the NASA procurement 
contracts and DOD assistance instruments before the Appellate  Body [in the original proceedings ], 
the relationship between DOD and Boeing in the particular context is one of partnership, involving 
collaboration in pursuit of a common goal for the mutual benefit of DOD and Boeing". In this regard, 
the Appellate  Body observed that, while it was not inappropriate for the Panel to begin its analysis 
by considering the relevant characteristics of the USDOD procurement contracts from the 
perspective of whether they resemble collaborative arrangements, in a second step the P anel should 
have addressed expressly the legal question of whether measures with characteristics such as the 
USDOD procurement contracts fall within the scope of one of the categories of Article  1.1(a)(1) of WT/AB/30  
 
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  the SCM  Agreement . Furthermore, having found tha t the USDOD procurement contracts are most 
appropriately characterized as purchases of services, the Panel found it unnecessary to address the 
interpretative issue of whether such transactions fall within the scope of Article  1.1(a)(1), given its 
ultimate conclusion that the European  Union  had failed to establish that the USDOD procurement 
contracts confer a benefit. The Appellate  Body observed that whether a "benefit" has been conferred 
is determined by reference to the trade -distorting potential of the "f inancial contribution". Thus, a 
finding with respect to the specific type of financial contribution under Article  1.1(a)(1) may be 
necessary in order to conduct a proper analysis of benefit as it relates to that category of financial 
contribution.  
First, t he European  Union took issue with the Panel's finding that the privately funded and 
non-reimbursed independent research and development (IR&D) expenditures incurred by Boeing in 
developing its background intellectual property (IP) cannot be considered a co ntribution of "financial 
resources" to a "joint undertaking" with USDOD. The Appellate  Body considered that, rather than 
failing to engage with relevant evidence, the Panel apparently disagreed with the European  Union 's 
argument, and viewed Boeing's use of  its own background IP and know -how in the context of the 
USDOD procurement contracts as an element not characteristic of a collaborative arrangement. It is 
in this light that the Appellate  Body understood the Panel's statements that the IR&D expenditures 
are not specified in the procurement contracts as contributions to be made by Boeing, and that 
Boeing cannot be said to be "contributing" financial resources or IP to a joint venture with USDOD. 
The Appellate  Body further noted that Boeing's use of private ly funded IR&D is qualitatively different 
from Boeing's participation under the USDOD assistance instruments, where the contracts 
themselves required Boeing to contribute financial resources, and where both parties committed 
non-monetary resources (facilit ies, equipment, and employees) to the research project. The Panel 
also explained its rationale when stating that " [t]hese expenditures are internal costs that 
contractors like Boeing incur in order to maintain the technological competence and expertise tha t 
enable them to provide the R&D services for which they are contracted." The Appellate  Body 
therefore did not consider that the Panel failed to engage with evidence, or provide a reasoned and 
adequate explanation in reaching its conclusions on Boeing's no n-reimbursed IR&D expenditures.  
Second, the European  Union  argued that, in arriving at the conclusion that USDOD and Boeing 
cannot be said to share the fruits of the research under the USDOD procurement contracts as they 
do under the NASA procurement contr acts and the USDOD assistance instruments, the Panel failed 
to engage with the European  Union 's arguments and evidence. The European  Union's first line of 
argument concerned the question of whether export controls, including the International Traffic in 
Arms Regulations (ITAR), have prevented Boeing from using technologies developed under the 
USDOD procurement contracts for commercial purposes. The Appellate  Body found that the original 
panel's finding did not directly contradict the Panel's finding on this issue. However, in the context 
of its financial contribution analysis, the Panel provided no basis for its conclusion that "Boeing's 
practical ability to explo it [the military technologies developed under the USDOD procurement 
contracts ] for civil applications is limited by legal restrictions." Nor did the Panel refer to the evidence 
presented by the European  Union  in order to demonstrate that Boeing had made us e of some 
ITAR-controlled data and had patented technology developed pursuant to the USDOD procurement 
contracts.  
In support of its  conclusion that Boeing's legal right to exploit military technologies developed under 
the USDOD procurement contracts for co mmercial purposes "is in practice restricted", the Panel also 
referred to its analysis of benefit, explaining what it considered to be the difference between the 
USDOD assistance instruments and the USDOD procurement contracts. However, the Appellate  Body 
considered that the Panel's reasoning was based on the label given to the relevant legal instruments 
under municipal law rather than on a proper analysis of the characteristics of the instrument. The 
Appellate  Body also noted that the fact that the USDOD p rocurement contracts do not fund research 
with explicit dual -use objectives does not determine the extent of limitations on Boeing's ability to 
exploit USDOD -funded research for civil applications. Furthermore, t he Panel's reasoning appeared 
somewhat circu lar and did not provide sufficient explanation of the difference between Boeing's 
practical ability to exploit R&D and patents granted in the context of the USDOD procurement 
contracts and the USDOD assistance instruments. In this regard, the Appellate  Body observed that 
both categories of legal instruments concern research primarily of a military nature that has been, 
or at least has the potential of being, exploited for civil purposes in certain cases. Therefore, the 
outcomes of the research under both co uld be expected to be covered under the ITAR, thus leading 
to restrictions on Boeing's ability to use this research for civil purposes. In light of its analysis, the 
Appellate  Body considered that the Panel failed to assess properly the European  Union's ev idence WT/AB/30  
 
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  relating to the actual use of ITAR-controlled data and technology developed pursuant to the USDOD 
procurement contracts. Furthermore, the Panel did not provide a reasoned and adequate explanation 
for its conclusion that Boeing's practical ability to  exploit military technologies developed under the 
USDOD procurement contracts for civil purposes is more limited than under the USDOD assistance 
instruments.  
The European  Union's second line of argument concerned the Panel's conclusion with regard to 
Boeing's sales of military aircraft to foreign governments. The Appellate  Body considered that the 
Panel's statement that the US government is the sole purchaser of modern air weaponry in the 
United  States  is compatible with the argument that Boeing also sells  some military equipment to 
governments other than that of the United  States . Moreover, the European  Union's evidence did not 
demonstrate how the fact that Boeing may have foreign military customers contradicts the Panel's 
observation that Boeing would be limited in exploiting technology developed under the USDOD 
procurement contracts for military purposes outside the United  States , especially in light of the 
existing US legal restrictions on the dissemination of military technology and data. In addition, t he 
Appellate  Body noted that the European  Union 's financial contribution argument before the Panel 
was focused more on the potential civil applications of the R&D performed under the USDOD 
procurement contracts than on the military  applications of this R&D  to Boeing's other customers for 
military technologies. In any event, the figures put forward by the European  Union on the defence 
budgets of foreign governments and the percentage of Boeing's military sales outside the 
United  States did not appear to esta blish a clear link between Boeing and sales  to any of those 
governments. Thus, the Appellate  Body considered that the European  Union did not demonstrate 
that the Panel's failure to address explicitly and rely upon its evidence and arguments relating to 
Boeing's military customers outside the United  States has a bearing on the objectivity of its factual 
assessment.  
Third, according to the European  Union, the Panel failed to conduct an objective assessment in 
distinguishing "the nature and purpose of the DOD procurement contracts from that of the NASA 
procurement contracts and DOD assistance instruments", and concluded that the nature and purpose 
of the interaction between USDOD and Boeing "is not the same as when two partners work together 
to set research top ics based on their aligned interests in the outcomes". With regard to the nature 
of the USDOD procurement contracts, the European  Union submitted that "a primarily military 
technological purpose  is not determinative of whether these programmes have the effect of 
developing technologies and knowledge that could be applicable to Boeing LCA." The Appellate  Body 
noted that that the Panel did not refer to any of the three categories of evidence presented by the 
European  Union  in the context of its analysis of fi nancial contribution. The Panel's reference to the 
Rumpf expert opinion in the context of its terms of reference analysis was not relevant for 
determining whether the Panel properly considered this evidence in the context of its financial 
contribution anal ysis, insofar as the relevant question before the Panel in that context was different 
from the legal question in the context of its financial contribution analysis. Furthermore, the Panel's 
reference to this expert opinion in referring to the European  Union's definition of the term "dual -use" 
was descriptive and did not demonstrate that the Panel assessed the pertinence of the 
European  Union's evidence in determining the existence of a relationship of collaboration between 
USDOD and Boeing in the context of  certain USDOD procurement contracts. Moreover, the Panel did 
not refer to the other two categories of evidence presented by the European  Union, namely the 
examples of civil applications of R&D developed by Boeing pursuant to the USDOD procurement 
contract s and the list of the USDOD -funded patents owned by Boeing with potential LCA -related 
applications. The Appellate  Body considered that the absence of any substantive assessment of the 
examples of Boeing's actual use of research conducted pursuant to the US DOD procurement 
contracts meant that the Panel did not sufficiently explore the evidence before it for purposes of its 
ultimate conclusion. The European  Union  further argued that the Panel failed to address its 
arguments that the "actual and anticipated te chnological outcomes, rather than the stated 
objectives, of the R&D are most indicative of the collaborative character of the DOD procurement 
contracts." The Appellate  Body noted that the Panel assessed the "particular commercial context" in 
which payments  by USDOD are provided in exchange for the performance of R&D by Boeing and 
found that " the nature and purpose  of this interaction is not the same as when two partners work 
together to set research topics based on their aligned interests in the outcomes." At the same time, 
the Panel's analysis focused on the objectives of the USDOD procurement contracts and the military 
nature of the research, rather than on the actual effects of those contracts. Given that the research 
under both the USDOD procurement cont racts and the USDOD assistance instruments was 
undertaken for military purposes, the Panel should have properly explained the reasons for 
distinguishing between the two categories of contracts. In the absence of such an explanation, the WT/AB/30  
 
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  Panel was not in a position to provide reasoned and adequate explanations in reaching its conclusion 
as to the characterization of the USDOD procurement contracts.  
With regard to the purpose of the USDOD procurement contracts, the European  Union contended 
that the Panel did not consider evidence demonstrating that the United  States  intends for, and 
encourages, USDOD contractors to extract commercial benefit from their work under the RDT&E 
programmes, as reflected in "the DOD's decision to end its previous policy of recouping 'a fair share 
of its investment in nonrecurring costs related to products, and/or a fair price for its contribution to 
the development of related technologies, when the products are sold, and/or when technology is 
transferred'". The Appellate  Body pointed out that the European  Union  had not relied on this 
argument specifically in its financial contribution argumentation and that the Panel examined the 
European  Union 's evidence in its benefit analysis. In the Appellate  Body's view, the Panel was not 
persuade d that the abstract possibility for USDOD to recoup any potential investments in 
commercialised technologies, had that policy stayed in place, established a sufficient link with the 
nature and functioning of the specific USDOD procurement contracts challen ged by the 
European  Union in these proceedings.  
In view of the above, the Appellate  Body found that the Panel failed to make an objective assessment 
of the matter before it within the meaning of Article  11 of the DSU in its financial contribution analysis  
under Article  1.1(a)(1) of the SCM  Agreement by not engaging sufficiently with the European  Union's 
evidence and arguments, and by failing to provide reasoned and adequate explanations for its 
findings.  
The European  Union further argued that in assessing whether the USDOD procurement contracts 
confer a benefit on Boeing within the meaning of Article  1.1(b) of the SCM  Agreement, "the Panel 
built upon the same errors" as in its analysis relating to financial contribution under Article  1.1(a)(1) 
of the SCM  Agreement . The Appellate  Body recalled the Panel's conclusion that, even if the 
assessment of benefit under the USDOD procurement contracts focused solely on the allocation of 
the IP rights arising from the performance of the R&D, in isolation from the other  terms of the 
transaction, it would not regard as appropriate benchmarks the evidence put forward by the 
European  Union  in the form of private collaborative R&D agreements. In reaching this conclusion, 
the Panel had rejected the European  Union's evidence of the allocation of IP rights under the private 
actor collaborative R&D arrangements based on the same deficiencies wit h respect to which the 
Appellate  Body found that the Panel failed to make an objective assessment of the matter under 
Article  11 of the DSU.  
The Appellate  Body therefore found, for the same reasons, that the Panel erred in finding that the 
distribution of  IP rights under the USDOD procurement contracts does not confer a benefit pursuant 
to Article  1.1(b) of the SCM  Agreement . 
With regard to the European  Union 's request to complete the legal analysis, the Appellate  Body 
recalled that it found several defici encies in the Panel's analysis of the evidence before it. 
Furthermore, multiple aspects of the relevant evidence supporting the participants' arguments, 
essential for the completion of the analysis, remained contested. The Appellate  Body noted that the 
determination of whether the funding and access provided to Boeing under the USDOD procurement 
contracts constitute collaborative arrangements with characteristics analogous to equity infusions 
involves a multifaceted analysis, which needs to take into accoun t not only the objectives and nature 
of the USDOD procurement contracts, but also their actual and potential effects. In the absence of 
sufficient factual findings by the Panel and undisputed facts on the record, the Appellate  Body was 
unable to complete t he legal analysis and determine whether the USDOD procurement contracts 
involve a financial contribution within the meaning of Article  1.1(a)(1) of the SCM  Agreement.  
3.1.3   European  Union 's claim s relating to the Panel's findings concerning FSC/ETI tax 
concessio ns under Article  1.1(a)(1)(ii) of the SCM  Agreement  
The European  Union  requested the Appellate  Body to reverse the Panel's finding that the 
European  Union had failed to establish that, after the expiry of the implementation period, the 
United  States contin ues to grant or maintain subsidies to Boeing in the form of tax concessions 
pursuant to the foreign sales corporation/extraterritorial income measures. The European  Union 
argued that this finding is based on the Panel's erroneous interpretation of Article  1.1(a)(1)(ii) of WT/AB/30  
 
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  the SCM  Agreement  as requiring the European  Union  to demonstrate that Boeing used FSC/ETI tax 
concessions in order to establish a financial contribution in the form of revenue foregone.  
The Appellate  Body stated that, for revenue to be con sidered "foregone" under Article  1.1(a)(1)(ii) 
of the SCM  Agreement , a government must relinquish an entitlement to raise revenue. This 
determination must focus on the conduct of a government, rather than on the use of tax concessions 
by the eligible taxpa yers. The Appellate  Body clarified, however, that this does not mean that 
evidence relating to the use of available tax concessions by the eligible taxpayers cannot be relevant 
in the determination of whether a government has "foregone" or "not collected" revenue.  
The Appellate  Body noted that, rather than making a determination of whether the US  Government 
has relinquished an entitlement to raise revenue, the Panel focused on whether Boeing used FSC/ETI 
tax concessions. The Appellate  Body considered that the Panel thus failed to foc us on the conduct 
of a government in determining whether revenue is "foregone" within the meaning of 
Article  1.1(a)(1)(ii) of the SCM  Agreement , and, in doing so, erred in the interpretation of this 
provision. On account of this error, the Appellate  Body reversed the Panel's finding that the 
European  Union had not established that, after the expiry of the implementation period, the 
United  States continues to grant or maintain subsidies to Boeing in the form of FSC/ETI tax 
concessions, because the European  Union had failed to demonstrate that those tax concessions 
involved a financial contribution within the meaning of Article  1.1(a)(1)(ii) of the SCM  Agreement . 
Having reversed the Panel's finding, the Appellate  Body turned to consider the European  Union's 
request to complete the legal analysis and find that that the United  States continues to grant or 
maintain prohibited FSC/ETI subsidies after the expiry of the implementation period and thus failed 
to "withdraw the subsidy" within the meaning of Article  7.8 of the SCM  Agreement. The 
Appellate  Body observed the United  States ' assertion that it enacted legislation ( the Tax Increase 
Prevention and Reconciliation Act  (TIPRA) ) that had withdrawn FSC/ETI subsidies with respect to 
Boeing. Accordingly, the Appellate  Body focused its analysis on whether, by enacting the TIPRA, the 
United  States has ceased to provide the financial contribution underpinning FSC/ETI subsidies to 
Boeing, and has subsequently withdrawn these subsidies with respect to Boeing.  
In the course of its analysis, the Appellate  Body determined, on the basis of the information on the 
Panel record, that Section 513 of the TIPRA has not removed FSC/ETI tax concessions for certain 
qualifying transactions entered into during taxable years before 17  May 2006. The Appellate  Body 
observed, however, that, while the European  Union  submitted before the Panel evidence allegedly 
showing that Boeing entered into such qualifying transactions and therefore remains eligible for 
FSC/ETI tax concessions, the Panel did not reach a conclusion regarding the extent of Boeing's 
eligibility for those concessions on the basis of Section 513 of the TIPRA. The Appellate  Body found, 
therefore, that, to the extent that Boeing remains entitled to FSC/ETI tax concessions under 
Section 513 of the TIPRA in the post -implementation period, the United  States  has not ceased to 
provide a financial contribution and thus has not withdrawn FSC/ETI subsidies with respect to Boeing 
within the meaning of Article  7.8 of the SCM  Agreement . 
3.1.4   European  Union 's claims relating to the Panel's findings concerning specificity 
under Article  2.1(c) of the SCM  Agreement  
3.1.4.1   The Panel's findings  concerning industrial revenue bonds  
The European  Union  claimed that the Panel erred in its interpretation and application of the term 
"disproportionately large amounts of subsidy" in Article  2.1(c) of the SCM  Agreement  when it failed 
to follow the provision that "account shall be taken … of the length of time  during which the subsidy 
programme has been in operation" (i.e.  1979 onwards) and instead limited its assessment of 
specificity of the City of Wichita's IRB subsidy programme to the period of time "after the end of the 
implementation period" (i.e . 2013 on wards). The Appellate  Body noted that the text of Article  2.1(c) 
does not contain an express indication as to how to determine the time  period relevant for assessing 
the existence of disproportionality, but that a proper understanding of specificity must a llow for the 
concurrent application of the principles in subparagraphs (a) -(c) of Article  2.1 to the various legal 
and factual aspects of a subsidy. At the same time, since the analysis under Article  2.1(c) will 
normally focus on evidence other than of the  kind found in written documents or express acts or 
pronouncements by a granting authority, indications relating to the appropriate time -period for the 
assessment of disproportionality may be drawn also from the structure and operation of the subsidy WT/AB/30  
 
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  at issue, the circumstances of the case, and the evidence presented by the parties. In the 
Appellate  Body's view, the third sentence of Article  2.1(c) does not prescribe a particular manner in 
which panels must consider the relevance of the factors therein for their overall analysis. While "the 
length of time during which the subsidy programme has been in operation"  must be taken into 
account by panels in their assessment of specificity, the temporal baseline for the assessment of 
disproportionality may not nece ssarily be the entire duration of the subsidy programme at issue. 
This may be the case where modifications to a subsidy programme have been made, in particular in 
the context of compliance proceedings, depending on the characteristics and functioning of th e 
subsidy programme at issue and the existence and the nature of a measure taken to comply.  
In light of the above, the Appellate  Body found that the Panel did not err in its interpretation of 
Article  2.1(c) of the SCM  Agreement  when concluding that the re levant period over which to consider 
disproportionality is "after the end of the implementation period".  
Turning to the Panel's application, the Appellate  Body noted that the Panel relied on the nature of 
these compliance proceedings for its finding that t he subsidy is no longer de facto specific, but 
provided little explanation for this approach. The Panel did not explain how, in the context of these 
compliance proceedings, it was warranted to base its assessment on a period of time different from 
that of the original proceedings in light of the particular circumstances of the case, or the nature and 
functioning of the subsidy at issue. At the same time, the Appellate  Body recalled that the subsidy 
measure in the present case consists of issuance of IRBs to  Boeing every year between 1979 
and 2007, and thus has been disbursed on a regular and periodic basis. Furthermore, IRBs are used 
to purchase property on which tax abatements are received for the following 10 consecutive years. 
The Panel recognized this st ructure and took into consideration in its analysis the ten -year lifetime 
of the IRB subsidies. Moreover, in its compliance communication, the United  States advised that the 
City of Wichita "has not provided any IRBs to Boeing since 2007". In this regard, the Panel concluded 
that " [b]y reducing considerably the proportion of the subsidy programme received by Boeing after 
the end of the implementation period, the United  States  has brought the measure into conformity 
with the SCM  Agreement". The amounts of ta x abatements also continuously diminished and in 2017 
"Boeing [was] due to receive a single tax abatement on Project Property purchased with IRB issuance 
in 2007." In sum, the Appellate  Body found that while the Panel could have better explained the 
choice  of the time -period for assessing whether disproportionately large amounts of IRBs were used 
by Boeing in determining the existence of de facto specificity, the time -period effectively used by 
the Panel does not appear inappropriate in the particular circu mstances of these compliance 
proceedings and specifically in light of the nature and operation of the IRB subsidies, as well as the 
nature of the alleged measure taken to comply.  
The Appellate  Body, however, drew attention to the Panel's analysis and findi ngs concerning the 
comparison between the expected and actual distribution of the subsidy. The Panel noted that, from 
2002 onwards, Boeing and Spirit received 32% of the total amount of IRBs issued, and that this was 
considerably less than the 69% in the o riginal proceedings. Taking into account that the availability 
of the IRB programme is somewhat restricted to entities with the capacity and inclination to make 
investments in certain commercial or industrial property, the Panel did not consider that Boein g and 
Spirit's receipt of 32% of the total amount of IRBs issued indicates a distribution of the subsidy that 
is at odds with what one would expect, were the IRB programme to be administered in accordance 
with the SCM  Agreement. The Appellate  Body began by  highlighting that, in assessing 
disproportionality, the inquiry is directed at whether the allocation of the subsidy is in accordance 
with its conditions of eligibility , rather than with the SCM  Agreement . The Appellate  Body then 
referred to its statement  in the original proceedings that, despite the fact that not all enterprises in 
the City of Wichita would, at any given time, wish to enjoy the benefits of IRBs with respect to 
property development, it "would nonetheless expect that the allocation of such benefits over the 
25-year period between 1979 and 2005 would have produced a wider distribution of those benefits 
across different sectors of the Wichita economy". The Appellate  Body noted that, in itself, the fact 
that Boeing and Spirit received 32% of th e total amount of IRBs between 2002 and 2012 does not 
answer the question of whether or not any disparity existed between the expected distribution of 
the subsidy, as determined by the conditions of eligibility, and its actual distribution. The existence 
of a disparity would depend, inter alia , on the extent of diversification of economic activities within 
the City of Wichita's economy, in line with the first factor of Article  2.1(c), third sentence. The Panel, 
however, did not engage in any such assessment and provided no explanation as to why  32% of the 
total amount of IRBs received by Boeing and Spirit in a much shorter period of time than in the 
original proceedings does not reveal the existence of a disparity.  WT/AB/30  
 
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  In light of the above, the Appellate  Body found that the Panel erred in its appl ication of Article  2.1(c) 
of the SCM  Agreement by providing insufficient reasoning for its conclusion that  the distribution of 
the subsidy was not "at odds with what one would expect were the IRB programme to be 
administered in accordance with the SCM  Agreement". The Appellate  Body therefore reversed the 
Panel's finding that the European  Union has failed to establish that the tax abatements provided 
through IRBs issued by the City of Wichita involve specific subsidies within the meaning of Articles  1 
and 2 of the SCM  Agreement.  
Turning to the European  Union 's request to complete the legal analysis, the Appellate  Body noted 
that, while the IRB programme is available to enterprises with the capacity to make the required 
investments, and while the percentage of  IRBs issued to Boeing and Spirit since 2002 is reduced 
from the original proceedings, it had no specific information on record that would permit it to 
evaluate whether this actual distribution of the subsidy is at odds with its expected distribution in 
light of the conditions of eligibility. Furthermore, with respect to whether there are any reasons that 
explain the existence of the disparity between the actual and expected distribution of the subsidy, 
there was no data on record regarding the percentage o f companies that could potentially benefit 
from the IRB subsidy, or the diversification of Wichita's economy. In the absence of sufficient factual 
findings by the Panel or undisputed facts on the Panel record, the Appellate  Body was unable to 
complete the legal analysis.  
3.1.4.2   The Panel's findings concerning economic development bonds  
First, the European  Union  alleged that the Panel erred in its interpretation of the phrase "limited 
number of certain enterprises" in Article  2.1(c), second sentence. According to t he European  Union, 
the Panel's finding that air hub bonds were used by a "limited number of certain enterprises" because 
they were granted to only one enterprise, Boeing, while economic development bonds  (EDBs), which 
were granted to only three enterprises , were not so "limited", reflected an interpretation of "limited 
number" to mean "one" or, at least, "fewer than three". The Panel found that the European  Union  
provided "no reasoning as to why, in light of the level of diversification in the South Carolin a economy 
and the duration of the economic development bond scheme, the grant of economic development 
bond proceeds to BMW, the Project Emerald companies and Boeing amounts to use by a limited 
number of enterprises", but that the European  Union  established  that subsidy provided by South 
Carolina through air hub bond proceeds to compensate Boeing for a portion of the costs in 
constructing the Gemini facilities and infrastructure is specific within the meaning of Article  2.1(c).  
The Appellate  Body recalled t hat the meaning of a quantitatively limited group should be determined , 
inter alia, in light of the factors in Article  2.1(c), third sentence, that require panels to take account 
of "the extent of diversification of economic activities within the jurisdict ion of the granting authority, 
as well as of the length of time during which the subsidy programme has been in operation". T o the 
extent that these two factors form part of the legal test under that provision, it would be for the 
European  Union  to provide evidence in making a prima  facie case. Moreover, where a panel's 
assessment proceeds from Article  2.1(a) and (b) to Article  2.1(c), the panel's analysis under 
subparagraph (c) would normally build upon the relevant legislative framework examined under 
Article 2.1(a) and (b). Based on the de jure  conditions of eligibility for the subsidy, EDBs could be 
issued only to companies complying with the somewhat demanding minimum investment and 
employment requirements . The question before the Panel under Article  2.1(c) was whether, 
notwithstanding the appearance of non -specificity resulting from the application of the principles in 
Article  2.1(a), there were reasons to believe that the subsidy may in fact be specific by virtue of the 
subsidy programme being used by a  limited number of certain enterprises.  
The Appellate  Body noted that the Panel did not elaborate on the reasons for rejecting the 
European  Union 's claim that the EDB subsidy had been used by a limited number of certain 
enterprises. However, the European  Union  also gave no specific reasons in support of its argument, 
while the United  States  submitted that BMW, the Project Emerald companies, and Boeing are among 
the largest employers in the State of South Carolina. The Appellate  Body considered that the Pan el's 
conclusion reflects an understanding that the granting of the subsidy to only three companies does 
not necessarily demonstrate that the subsidy was used by a "limited number" of certain enterprises 
within the meaning of the first factor in Article  2.1(c), second sentence. The Appellate  Body pointed 
to the fact that the recipients of the subsidy were not all from the same sector of the economy. 
Furthermore, there were no indications that, in light of the eligibility requirements under the subsidy 
scheme  and the diversification of economic activities within the State of South  Carolina or the length 
of time during which the subsidy has been in operation, the actual allocation of the subsidy differed WT/AB/30  
 
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  from its expected allocation. It could well be that only a small number of companies were ready to 
make the necessary investments and create the required number of jobs, and therefore be able to 
satisfy the legal conditions to access the EDB subsidy. Therefore, the Appellate  Body understood the 
Panel to have con sidered that the European  Union has not met its burden of proof in demonstrating 
that, in the circumstances of the present case, the EDB subsidy has been used by a limited number 
of certain enterprises. Furthermore, the Panel's reasoning with regard to the  air hub bonds was 
based on the undisputed fact that "air hub bonds have only been issued to Boeing during the almost 
three -decade long existence of the scheme", which was "unsurprising since the evidence before the 
Panel suggests that only Boeing meets th e requirements to benefit from air hub bond proceeds, 
namely to be the operator of an 'air carrier hub terminal facility' as defined in the South  Carolina 
Code". In the Appellate  Body's view, the Panel's finding with regard to the air hub bonds was 
therefo re made in light of the specific language in the South Carolina Code that appeared to de facto  
restrict the eligibility for those bonds to an enterprise with Boeing's specific profile.  
In view of the above, the Appellate  Body found that the Panel did not err in its interpretation of the 
phrase "limited number of certain enterprises" in Article  2.1(c) of the SCM  Agreement by implicitly 
interpreting the term "limited number" as referring to "one" or "fewer than three" entities.  
Second, the European  Union  argued that the Panel erred in interpreting the term "certain 
enterprises" in Article  2.1(c) of the SCM  Agreement  as encompassing public entities, such as cities 
and public colleges, whereas it only encompasses private entities, i.e.  business firms or companies 
involved in commercial transactions and engagements. The European  Union also submitted that the 
Panel erred in its application of Article  2.1(c) by including in its specificity analysis EDBs provided to 
public entities. In the Appellate  Body's view, the definitions of the term "enterprise" indicate that it 
can be interpreted as an entity that engages in certain activities of business or commercial nature. 
The reference to "an enterprise or industry or group of enterprises or industries" also sugge sts that 
the terms of the provision relate primarily to the type of activity carried out by the entity and do not 
necessarily limit the scope of entities based on whether they are publicly or privately owned. The 
understanding that ownership is not disposi tive of the definition of "enterprise" finds support also in 
the third sentence of Article  2.1(c), which requires that account be taken of "the extent of 
diversification of economic activities  within the jurisdiction of the granting authority". Turning to the 
relevant context, the Appellate  Body noted that Article  1, which sets out the definition of subsidy for 
purposes of the SCM  Agreement, describes the types of financial contributions by reference to the 
specific governmental action of granting  the subsi dy, and not the nature or activities of the entity 
receiving  the contributions. The Appellate  Body therefore considered that the determination of 
whether a number of enterprises or industries constitute "certain enterprises" within the meaning of 
Article  2.1(c) should be made in light of all relevant characteristics of the entities concerned, 
including the nature and purpose of their activities in the markets in question and the context in 
which these activities are exercised. The ownership of the entity ma y be a relevant factor but is not 
determinative of whether an entity qualifies as an "enterprise" for purposes of Article  2 of the 
SCM Agreement.  
Turning to the Panel's analysis of the term "certain enterprises", the Appellate  Body recalled that, 
since the  adoption of South Carolina's legislation authori zing the issuance of EDBs in 2002, such 
bonds have been issued to BMW, the Project Emerald companies, and Boeing, as well as to certain 
public entities, namely the City of Greenville, the City of Myrtle Beac h, and Trident Technical College. 
The Panel considered that "precisely the fact that economic development bonds can be and have 
been issued to public entities, namely two cities and a public college, in addition to private entities, 
suggests that the schem e is not limited to 'certain enterprises' within the meaning of Article  2.1(c)." 
According to the Appellate  Body, the fact that a subsidy has been granted to both public and private 
entities may be potentially relevant to an assessment of de facto specific ity, to the extent that all of 
these entities are "certain enterprises". However, in making this statement, the Panel refrained from 
making an assessment and reaching a conclusion as to whether the three public entities at issue 
should be considered as "en terprises", but nevertheless considered these entities relevant to its 
analysis of de facto  specificity. In this regard, the Appellate  Body highlighted that the notion of 
specificity within the meaning of the SCM  Agreement encompasses the universe of entit ies that 
constitute "certain enterprises", as determined in light of the principles in subparagraphs  (a) through 
(c) of Article  2.1. The Appellate  Body therefore did not see the pertinence of subsidy recipients that 
fall outside the definition of an "enter prise" for a panel's determination of whether a subsidy is 
specific to "certain enterprises". It followed that, if a subsidy is found to be specific "to an enterprise 
or industry or group of enterprises or industries", the fact that this subsidy has also b een granted to 
certain other entities that do not fall within the definition of an "enterprise" has no bearing on the WT/AB/30  
 
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  finding of specificity. At the same time, the Appellate  Body pointed out that the Panel had already 
reached its conclusions with respect t o the factors "use of a subsidy programme by a limited number 
of certain enterprises", and "predominant use by certain enterprises" before making its statement 
as to the relevance of "public entities" in the assessment of de facto specificity. Therefore, t he 
Appellate  Body did not consider that the Panel's rejection of the European  Union's claims that the 
EDB subsidy is specific within the meaning of Article  2.1(c) hinged upon its statement relating to the 
relevance of the three public entities. Thus, the P anel's error did not invalidate the Panel's ultimate 
finding that the European  Union  failed to establish that the subsidy provided by South Carolina 
through EDBs is specific within the meaning of Article  2.1(c) of the SCM  Agreement . 
Third, The European  Union argued that the Panel erred in interpreting the term "predominant" in 
the factor "predominant use by certain enterprises" in Article  2.1(c), second sentence, as involving 
a concept entirely different from the term "disproportionate" in the factor "dispr oportionately large 
amounts of subsidy to certain enterprises" in the same subparagraph. In the European  Union 's view, 
based on this erroneous distinction, the Panel rejected the European  Union's evidence as inadequate 
or irrelevant for determining the exi stence of "predominant use". The Appellate  Body recalled that, 
given the focus of the other factors under subparagraph (c), the term "predominant" is to be 
interpreted as relating primarily to the incidence or frequency  with which the subsidy is used by 
certain enterprises. At the same time, the different focus of the various factors listed in Article  2.1(c), 
second sentence, does not imply that the analyses under those factors have to rely on completely 
distinct sets of evidence. This is because whether a subsidy programme is mainly, or for the most 
part, used by "certain enterprises" is necessarily a question that should be answered on a 
case-by-case basis, taking into account the particular characteristics of the subsidy programme at 
issue and the prevail ing circumstances of the case, and in light of the factors in the third sentence 
of Article  2.1(c) of the SCM  Agreement . Furthermore, determining which factors in Article  2.1(c) will 
be relevant to the analysis of specificity is "a function of what reasons  there are to believe that the 
subsidy may in fact be specific", and panels should "remain open to the applicability of each of the 
elements set out in Article  2.1(c), and to the possibility that a conclusion in respect of specificity in 
fact may, dependin g on the circumstances of the case, rely on an assessment of one, several, or all 
of those elements ".  
The Appellate  Body observed that the Panel did not develop its own understanding of the meaning 
of the term "predominant use" and what evidence might be relevant to establishing that the EDB 
scheme was mainly, or most frequently, used by certain enterprises in the present circumstances. 
The Appellate  Body agreed with the European  Union that there may be overlap in the evidence 
demonstrating the existence o f "predominant use [of a subsidy programme ] by certain enterprises" 
and the "disproportionately large amounts of subsidy to certain enterprises", depending on the 
nature, functioning, and actual distribution of the particular subsidy programme; other relev ant 
factual circumstances; and the assessment of the factors in the third sentence of Article  2.1(c) of 
the SCM  Agreement . Evidence about the number of enterprises receiving a subsidy, the amounts 
received by certain enterprises, and the frequency with whi ch the subsidy has been received by 
those enterprises may therefore be complementary and, depending on the circumstances of the 
case, point to the existence of de facto specificity based on one or another factor under Article  2.1(c). 
The Appellate  Body observed that the subsidy was granted to relatively few entities, relatively 
infrequently, and in relatively large amounts. In these circumstances, the question as to whether 
the subsidy programme has been used predominantly by certain enterprises would have to take into 
account not just the incidence or frequency with which Boeing and other enterprises have been 
granted the subsidy, but also the value of the EDBs granted. Only then would it be possible to answer 
the question of whether the subsidy has been ma inly, or for the most part, used by certain 
enterprises.  
In light of the above, the Appellate  Body found that the Panel erred in its interpretation of the factors 
"predominant use by certain enterprises" and "granting of disproportionately large amounts o f 
subsidy to certain enterprises" in Article  2.1(c) of the SCM  Agreement. The Appellate  Body therefore 
reversed the Panel's finding that the European  Union  has failed to establish that the subsidy provided 
by South Carolina through EDB proceeds is specific  within the meaning of Article  2.1 of the 
SCM Agreement.  
With respect to the European  Union 's request to complete the legal analysis, the Appellate  Body 
observed that there are no findings by the Panel or undisputed facts on the Panel record sufficient 
to assess whether the EDB subsidy has been predominantly used by certain enterprises. In view of 
the above, the Appellate  Body was unable to complete the legal analysis of the European  Union's WT/AB/30  
 
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  claim that the EDB subsidy programme is de facto  specific because of its predominant use by certain 
enterprises within the meaning of Article  2.1(c) of the SCM  Agreement.  
3.1.5   European  Union 's claims relating to the Panel's findings concerning South 
Carolina's additional corporate income tax credits  
The European  Union  request ed the Appellate  Body to reverse the Panel's finding that the 
European  Union  had failed to establish that the subsidy provided through the additional corporate 
income tax credits is specific within the meaning of Article  2.2 of the SCM  Agreement , and its 
conclusion that the European  Union  had not established that the United  States  failed to withdraw 
this subsidy within the meaning of Article  7.8 of the SCM  Agreement . The European  Union  claimed 
that, in finding that the MCIP subsidy is not "limited to certain enterprises located within a designated 
geographical region", the Panel er red in the application of Article  2.2 of the SCM  Agreement  and 
reached, on this basis, an erroneous conclusion that the European  Union  had failed to establish that 
the United  States  had not withdrawn this subsidy within the meaning of Article  7.8 of the 
SCM Agreement. In addition, the European  Union  argued that the Panel acted inconsistently with 
Article  11 of the DSU because the Panel's conclusion that the MCIP subsidy is not specific under 
Article  2.2 of the SCM  Agreement  is not based on the objective ass essment of the facts.  
The Appellate  Body considered that a subsidy is specific under Article  2.2 of the SCM  Agreement 
when it is limited to "certain enterprises" located within a "designated geographical region within 
the jurisdiction of the granting autho rity". This is the case when access to a subsidy is either explicitly 
or implicitly limited to entities, engaged in economic activities in the market, that have their 
headquarters, branch offices, or manufacturing facilities in a "designated geographical r egion" within 
the jurisdiction of the granting authority, or that are otherwise established within such a region. A 
"designated geographical region" refers to an identified geographical area, space, or place of more 
or less definite extent or character. Th e identification of a geographical region for the purposes of 
Article  2.2 may be explicit or implicit, provided that the relevant region is clearly discernible from 
the text, design, structure, and operation of the subsidy measure at issue.  
The Appellate  Body noted the Panel's finding that this subsidy was available only to taxpayers located 
in an MCIP, due to Section 12 -6-3360 of the South Carolina Income Tax Act, which provides that 
only taxpayers located in an MCIP are eligible for the additional corpora te income tax credits. In light 
of this explicit limitation on access to the subsidy, the Appellate  Body disagreed with the Panel that, 
because enterprises not currently located in an MCIP may become part of an MCIP in the future and 
then qualify for the s ubsidy, or that the territory of existing MCIPs may be reduced or expanded and 
new MCIPs may be established, the MCIP subsidy is not specific within the meaning of Article  2.2 of 
the SCM  Agreement . The Appellate  Body thus found that the Panel erred in the application of 
Article  2.2 in stating that the availability of the MCIP subsidy only to enterprises located within an 
MCIP "cannot be meaningfully considered to amount to a limitation under Article  2.2". Consequently, 
the Appellate  Body reversed the Panel' s finding that the European  Union  had failed to establish that 
the subsidy provided through the additional corporate income tax credits is specific within the 
meaning of Article  2.2 of the SCM  Agreement . Having reversed the Panel's finding on account of th e 
Panel's error in the application of Article  2.2, the Appellate  Body did not find it necessary to examine 
further the objectivity of the Panel's assessment under Article  11 of the DSU.  
Turning to consider the European  Union 's request for the completion of the legal analysis, the 
Appellate  Body recalled its conclusion that Section 12 -6-3360 of the South Carolina Income Tax Act 
imposes a limitation on access to the MCIP subsidy. In considering the question of whether this 
limitation concerns "ce rtain enterprises located within a designated geographical region" within the 
meaning of Article  2.2, the Appellate  Body noted that Section 12 -6-3360 of the South Carolina 
Income Tax Act does not itself predetermine the geographical areas of the MCIPs esta blished in 
South Carolina. The Appellate  Body found, however, that the geographical area of a particular MCIP, 
such as the Charleston -Colleton MCIP, may be discerned from the instrument establishing an MCIP. 
The Appellate  Body thus considered that the subs idy measure at issue designates the "geographical 
region" within which enterprises must be located in order to receive the subsidy. The Appellate  Body 
therefore completed the legal analysis and found that the subsidy provided to Boeing through the 
addition al corporate income tax credits, pursuant to Section 12 -6-3360 of the South Carolina Income 
Tax Act, is specific within the meaning of Article  2.2 of the SCM  Agreement . WT/AB/30  
 
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  3.1.6   Continuing adverse effects from the original reference period  
The European  Union  reques ted the Appellate  Body to reverse the Panel's finding that adverse effects 
consisting of significant price suppression and significant lost sales cannot continue to be caused by 
subsidies in instances where LCA orders occurred prior to the end of the imple mentation period, but 
for which deliveries remained outstanding in the post -implementation period. The European  Union  
argued that the Panel erred in the interpretation of Article  7.8 of the SCM  Agreement  by excluding 
adverse effects found in relation to specific transactions during the original reference period from 
the obligation to take appropriate steps to remove adverse effects. The European  Union  also claimed 
that the Panel erred in the application o f Article  7.8 of the SCM  Agreement , and acted inconsistently 
with Article  11 of the DSU, by erroneously finding that lost sales and price suppression begin and 
end at the time at which an LCA is ordered, and do not exist throughout the life of the contract  until 
the final aircraft is delivered.  
The Appellate  Body stated that, depending on the circumstances of a particular transaction or set of 
transactions that form the basis for a finding of significant price suppression or significant lost sales 
under Art icle 6.3(c) of the SCM  Agreement , it did not see that these particular phenomena must be 
limited to the moment at which the transaction or set of transactions first occur. With regard to price 
suppression, for example, there may be circumstances in which c ertain payment terms in the future 
will continue to be a reflection of suppressed prices. With respect to lost sales, the Appellate  Body 
acknowledged that there may be a stronger case for understanding the phenomena as limited to the 
moment at which the su ppliers of the complaining Member "failed to obtain" a sale, but noted that 
there may be elements affecting finalization of the transaction, or concerning follow -on transactions 
in the form of options or purchase rights that may be indicative of an ongoing  phenomenon of lost 
sales. The Appellate  Body emphasized, however, that the extent to which elements of the 
transactions underlying the original finding of adverse effects in the form of price suppression or lost 
sales endure in a manner so as to indicate the ongoing existence of adverse effects will very much 
depend on the nature, timing, and scope of those underlying transactions.  
The Appellate  Body noted that, in the context of the LCA industry in particular, the original panel 
remarked that, given the particularities of LCA production and sale, the phenomena of price 
suppression and lost sales "do not begin and end at the time at which an LCA is ordered", but "should 
be understood to begin at the time at which an LCA order is obtained (or an order is lo st), and to 
continue up to and including the time at which that aircraft is delivered (or not delivered)". The 
Appellate  Body considered that, although the extent to which prices are suppressed or sales are lost 
is certainly first manifest at the time LCA are ordered, the consequences of these phenomena may 
continue to be affected by factors occurring from the time of order through delivery. At the same 
time, it would be improper to suggest that in all instances involving the phenomena of price 
suppression and lost sales in the LCA market, the phenomena manifest themselves to the same 
degree throughout the time  period from order to delivery. The Appellate  Body therefore did not see 
that there can be any generalized guidance about the circumstances in which o riginal findings of 
price suppression or lost sales may be said to persist beyond the moment of order.  
On the basis of this understanding, the Appellate  Body found that the Panel adopted an overly rigid 
approach with respect to the question of whether outs tanding deliveries concerning LCA orders that 
were relied upon to find significant price suppression or significant lost sales may still provide a basis 
for a finding of such effects in the post -implementation period. The Appellate  Body considered that 
the mere existence of outstanding deliveries after September  2012 relating to original orders found 
to have resulted in significant price suppression or significant lost sales between 2004 and 2006 
would not necessarily, by itself, be dispositive as to the ex istence of significant price suppression or 
significant lost sales in the post -implementation period. At the same time, however, the 
Appellate  Body disagreed with the Panel's suggestion that such evidence can never form the basis 
of a finding as to the ong oing existence of such effects.  
The Appellate  Body also found the Panel's reasoning with respect to Article  7.8 of the 
SCM Agreement unpersuasive. The Panel's concern that the European  Union 's claim would result in 
a retrospective remedy appeared premised on the notion that the only means by which the 
United  States could bring itself into compliance under the European  Union 's theory is to undo the 
original orders. However, Article  7.8 does not specify what "steps" are "appropriate" for purposes of 
removing the adverse effects, which suggests that it covers a range of possible actions. While the 
European  Union did not explain what kind of action the United  States  could have taken with respect 
to that undelivered aircraft that would have removed the present ad verse effects, this does not mean WT/AB/30  
 
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  that such removal is not possible, and does not support the Panel's apparent assumption that the 
only way to remove such effects would therefore have to be a retrospective undoing of the original 
orders.  
More importantly, the Appellate  Body considered that the Panel's approach led it to draw a faulty 
distinction between "present adverse effects", on the one hand, and "consequence [s] or 
manifestation [s] of an event that occurred in the past" or "continuing manifestations or effects of 
past adverse effects", on the other. To the extent that adverse effects arising in the 
post-implementation period are shown to have been caused by subsidies that have not expired, they 
are themselves adverse effects, not something consequential to the original adverse effects. In this 
respect, the Appellate  Body saw no basis to categorically exclude consideration of delivery data 
concerning the post -implementation period to the extent that such evidence, in conjunction with 
other evidence, shows ongoing price suppression or lost sales in the post -implementation period. 
While evidence pertaining to outstanding deliveries is unlikely, by itself, to be dispositive as to 
adverse effects occurring well after the LCA sales that gave rise to the original  findings were made, 
there is no tenable basis to exclude the potential relevance of such evidence in establishing such a 
case. 
The Appellate  Body therefore found that the Panel erred in its interpretation of Article  7.8 of the 
SCM Agreement  by excluding ab initio  from an inquiry into whether the United  States  had failed to 
take appropriate steps to remove the adverse effects of the subsidies, evidence relating to 
transactions for which the orders arose in the original reference period but for which deliver ies 
remain outstanding in the post -implementation period. Accordingly, the Appellate  Body reversed the 
Panel's interpretation of Article  7.8 and its statement in paragraph 9.332 of its Report, that reliance 
on the role of deliveries of aircraft in the post -implementation period as evidence of a continuation 
of serious prejudice "is inconsistent with a prospective interpretation of Article  7.8". 
The European  Union  also requested the Appellate  Body to reverse the Panel's finding that the 
European  Union's clai m of continuing adverse effects was unsupported by the evidence and/or was 
in contradiction with the findings made in the original proceedings. The European  Union  argued that 
the Panel acted inconsistently with Article  11 of the DSU by deviating from the a dopted findings in 
the original proceedings concerning the 200 -300 seat LCA market by now focusing on separate 
aircraft models. The European  Union  further alleged that the Panel erred under Articles 5 and 6.3 of 
the SCM  Agreement  by failing to conduct a proper counterfactual analysis when assessing whether 
there was continuing price suppression of the A330 in the post -implementation period.  
The Appellate  Body noted that, although the original panel made ultimate findings for each serious 
prejudice phenomenon with respect to the 200 -300 seat LCA market as a whole, the evidentiary 
basis for doing so regarding the original reference period related solely to the A330 and the 
Original  A350, but not the A350XWB. This is a relevant consid eration in evaluating the extent to 
which the original adverse effects may be said to continue into the post -implementation period, and, 
at a minimum, does not seem to support the European  Union 's assertion that the Panel in these 
compliance proceedings so mehow departed from the approach taken by the original panel in focusing 
on evidence relating to specific LCA models. The Appellate  Body further noted that the 
European  Union sought to rely principally on the fact that orders of Original A350 were converte d to 
orders of A350XWB, and that certain deliveries of the latter remained outstanding at the end of the 
implementation period. The Appellate  Body stated that the Panel had grounds to consider that 
developments concerning the relevant LCA market since the original reference period precluded 
mere transposition of the original panel's findings into the post -implementation period. The 
Appellate  Body therefore found that the Panel did not act inconsistently with Article  11 of the DSU 
"by deviating from the adop ted findings in the original proceedings" concerning the 200 -300 seat 
LCA market.  
The European  Union  further alleged that the Panel erred under Articles 5 and 6.3 of the 
SCM Agreement by failing to conduct a proper counterfactual analysis when assessing wh ether there 
was continuing price suppression of the A330 in the post -implementation period. The Appellate  Body 
considered that the Panel properly explained that, in examining claims of significant price 
suppression, "price trend data alone is not sufficien t", and that "it is also necessary to present 
counterfactual argumentation demonstrating that, in the absence of the subsidies, prices would have 
been higher". The Appellate  Body also explained its view that the Panel would have considered that 
the "actual " and the "counterfactual" situations were the same in the sense that, as of the end of 
the implementation period, the 787 would have been launched in the LCA market regardless of WT/AB/30  
 
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  subsidization and would have been competing with the A350XWB. In this light,  the Appellate  Body 
considered that the Panel's view that the A330 would not have been able to command the sort of 
price it once did, in view of the technological superiority of the 787 and the A350XWB, did not reflect 
a failure to conduct a proper counter factual analysis. The Appellate  Body also noted that the Panel 
had identified other reasons for its rejection of the European  Union's claim. The Appellate  Body 
therefore found that the Panel did not err under Articles 5 and 6.3 of the SCM  Agreement  by fail ing 
to conduct a proper counterfactual analysis when assessing whether there was continuing price 
suppression of the A330 in the post -implementation period.  
Having found no Panel error under either Article  11 of the DSU, or under Articles 5 and 6.3 of the 
SCM Agreement , the Appellate  Body upheld the Panel's separate finding that "the European  Union's 
arguments are unsupported by the evidence and/or in contradiction with the findings made in the 
original proceeding."  
3.1.7   Technology effects  
The European  Union  requested the Appellate  Body to reverse the Panel's finding that the 
European  Union  failed to establish that the pre -2007 aeronautics R&D subsidies are a genuine and 
substantial cause of adverse effects in the post -implementation period through a technology c ausal 
mechanism. The European  Union  contended that the Panel, in reaching this finding, committed 
several legal errors in the application of Articles 5, 6.3, and 7.8 of the SCM  Agreement , and failed 
to make an objective assessment of the matter under Artic le 11 of the DSU.  
The Appellate  Body began by assessing the European  Union 's fundamental concern that the Panel 
erred in assessing the existence of adverse effects of the pre -2007 aeronautics R&D subsidies by 
limiting its analysis to the counterfactual launch date of the 787 and excluding consideration of the 
impact of these subsidies on the timing of delivery  of the 787. The European  Union  challenged this 
aspect of the Panel's analysis on the basis of a claim of error in the application of Articles 5, 6.3,  
and 7.8 of the SCM  Agreement, and allegations that the Panel acted inconsistently with its 
obligations under Article  11 of the DSU.  
Although the participants did not take issue with the manner in which the Panel articulated the 
counterfactual question bef ore it, they disagreed on the scope and import of the findings in the 
original proceedings regarding the type of counterfactual analysis that should be conducted in these 
compliance proceedings. Having examined certain key passages from the original panel and 
Appellate  Body reports, the Appellate  Body noted that the technology effects of the pre -2007 
aeronautics R&D subsidies were acceleration  effects with respect to the development of technologies 
for the 787. The Appellate  Body also observed that the conc ept of "launch" was particularly relevant 
in the original proceedings. For purposes of the original reference period from 2004 to 2006, launch 
was the principal accelerated event that enabled the original panel to reach conclusions of adverse 
effects arisi ng from a subsidized 787. Any acceleration of the 787's first delivery occurred after the 
2004-2006 reference period and was a consequence of its accelerated launch. Indeed, the original 
panel and the Appellate  Body acknowledged that there were also accele ration effects with respect 
to the promised first deliveries of the 787 by affirming that, through the pre -2007 aeronautics R&D 
subsidies, Boeing was able to offer "promised deliveries commencing in 2008".  
The Appellate  Body observed the apparent view of t he Panel and the participants that the findings 
in the original proceedings already settle  the question of whether, in these compliance proceedings, 
the analysis of the technology effects claims should focus on the timing of the 787's launch or 
whether suc h an analysis should also take into account the impact of the acceleration effects of the 
pre-2007 aeronautics R&D subsidies on the timing of first delivery of the 787. The Appellate  Body 
considered that the relevant counterfactual question in the original  proceedings was different  from 
the one at issue in these compliance proceedings. The original panel was not required to examine 
whether the acceleration effects caused by the pre -2007 aeronautics R&D subsidies continued to 
exist at a particular point in t ime. Rather, the original panel's task concerned the issue of whether 
the pre -2007 aeronautics R&D subsidies at issue caused  a technology effect by accelerating the 
development of the 787 technologies and, if so, whether such acceleration effects caused se rious 
prejudice to the interests of the European  Communities during the 2004 -2006 reference period. For 
this reason, in the Appellate  Body's view, it was sufficient for the original panel to find that "the 
NASA aeronautics R&D subsidies accelerated the tec hnology development process by some  amount 
of time, and, therefore gave Boeing an advantage in bringing its technologies to market." Therefore, WT/AB/30  
 
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  the analysis revolved around the issue of whether, not by how long , the pre -2007 aeronautics R&D 
subsidies accel erated the 787's technology development process.  
By contrast, in these compliance proceedings, the Panel's inquiry focused on the issue of whether 
the acceleration effects of the pre -2007 aeronautics R&D subsidies that were found to exist by the 
original p anel still exist  in the post -implementation period and, if so, whether such acceleration 
effects cause serious prejudice to the interests of the European  Union in the post -implementation 
period . In these circumstances, the Appellate  Body did not see why the Panel, in addressing the 
European  Union 's technology effects claims in these compliance proceedings, would have been 
bound by the approach adopted by the original panel, which addressed a different counterfactual 
question.  
In the Appel late Body's view, it was clear that the Panel based its conclusion solely  on the 
counterfactual time estimates with respect to the 787's launch . Thus, the Panel's counterfactual 
analysis ultimately did not include consideration of the time estimates with r espect to the 
counterfactual first delivery of the 787. The European  Union  maintained that the notion of presence 
in the market  of the 787 – a factor mentioned by the Panel in framing the counterfactual question – 
concerns not only the launch of a product that Boeing offers, but also the time at which the product 
is offered for delivery to customers and the timing of actual delivery. For the Appellate  Body, a 
central element in the Panel's counterfactual question indeed related to the moment by which the 
787 is deemed to be "present in the market". Thus, the Appellate  Body considered that the key issue 
before it was whether the Panel properly addressed the counterfactual question by limiting its 
analysis of the acceleration effects of the pre -2007 aeronautic s R&D subsidies to the timing of 
the 787's launch or whether a proper application of that counterfactual question also required 
consideration of the acceleration effects on the timing of first delivery of the 787.  
The Appellate  Body pointed to certain feat ures of the LCA industry that shed light on this question. 
In particular, the Appellate  Body observed that LCA are sold to customers through long -term 
contracts, often involving staggered deliveries of aircraft over several years. The terms and 
conditions of each purchase contract are set at the time the order is made, and include many 
different elements, such as aircraft specification, net price, discounts, non -price concessions, and 
financing arrangements. Moreover, LCA purchase contracts provide both the  basic airframe price, as 
well as for the escalation of that price to account for the time that elapses between the negotiation 
of the price at the time of order and the delivery of the aircraft.  
The Appellate  Body further indicated that the Panel's counte rfactual analysis was part of a broader 
inquiry seeking to determine whether the pre -2007 aeronautics R&D subsidies continue to cause 
serious prejudice within the meaning of Articles 5 and 6.3 in the post -implementation period. In the 
LCA market, the marke t phenomena of price suppression and lost sales are not limited to what 
occurs at the time of an LCA order and, therefore, such phenomena may continue up to the point of 
LCA delivery. Consequently, in the context of the LCA market, determining whether the forms of 
serious prejudice under Article  6.3 at issue in this dispute still existed in the post -implementation 
period requires assessing whether any acceleration effects from the pre -2007 aeronautics R&D 
subsidies also had an impact on the timing of the fi rst delivery of the 787 in the post -implementation 
period. In this respect, the Appellate  Body noted that, unless otherwise specified, its references to 
"first delivery of the 787" covered both promised first delivery and actual first delivery.  
Moreover, t he Appellate  Body considered that, if the pre -2007 aeronautics R&D subsidies had an 
impact on stages of the 787's development – either before or after its launch – that affected the 
timing of the first delivery of the 787 in relation to the end of the impl ementation period, then 
assessing the timing of this aircraft's first delivery would have been particularly appropriate for 
determining whether the acceleration effects still exist in the post -implementation period and could 
be attributed to the pre -2007 a eronautics R&D subsidies. For the Appellate  Body, if there were no 
such acceleration effects that affected the timing of the first delivery of the 787, then the Panel 
should have reasoned why that is the case, rather than excluding consideration of this is sue ab initio . 
In addition to the above considerations, the Appellate  Body was of the view that there were several 
indications before the Panel that should have led it to evaluate whether the forms of serious prejudice 
alleged by the European  Union  are sti ll present in the post -implementation period by examining 
whether, absent the pre -2007 aeronautics R&D subsidies, first delivery of the 787 would have 
occurred after the end of the implementation period. As a starting point, the original panel and the 
Appellate Body considered that the technology effects of the pre -2007 aeronautics R&D  subsidies WT/AB/30  
 
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  accelerated both the 787's launch and its promised first delivery. Furthermore, the Appellate  Body 
considered that it should have been telling for the Panel that bo th parties presented argumentation 
related to activities pertaining to, and time estimates for, the 787's launch and its first delivery.  
For the foregoing reasons, the Appellate  Body was not persuaded that it was sufficient for the Panel 
to base its conclu sion regarding the European  Union 's technology effects claims solely on its 
understanding of the original panel's findings. By failing to assess in its counterfactual analysis 
whether the acceleration effects of the pre -2007 aeronautics R&D subsidies had a n impact, not just 
on the launch of the 787, but also on the timing of the first delivery of the 787, the Appellate  Body 
concluded that the Panel did not properly assess the counterfactual question as to whether there 
remain acceleration  effects of the pre -2007 aeronautics R&D subsidies in the post -implementation 
period. Accordingly, the Appellate  Body found that the Panel erred in the application of Articles  5 
and 6.3 and, as a consequence, Article  7.8 of the SCM  Agreement. The Appellate  Body therefore 
reversed the Panel's findings that the European  Union failed to demonstrate that the acceleration 
effects of the pre -2007 aeronautics R&D subsidies in relation to Boeing's technology development 
for the 787 have continued into the post -implementation period; and that the European  Union 
therefore failed to demonstrate the existence of original subsidy technology effects of the pre -2007 
aeronautics R&D subsidies in the post -implementation period.  
The European  Union  also requested the Appellate  Body to reverse th e Panel's analysis with respect 
to the spill -over technology effects of the pre -2007 aeronautics R&D subsidies on the 787 -9/10, 
the 777X, and the 737  MAX. The Appellate  Body considered that the Panel's conclusions regarding 
the European  Union 's claims with  respect to the spill -over technology effects were largely dependent 
on its earlier findings regarding the original subsidy technology effects of the pre -2007 aeronautics 
R&D subsidies on the 787. Since it had reversed the Panel's analysis regarding the or iginal subsidy 
technology effects, the Appellate  Body consequently reversed the Panel's findings that the 
European  Union failed to demonstrate the existence of spill -over technology effects of the pre -2007 
aeronautics R&D subsidies with respect to the 787 -9/10, 777X, and 737 MAX in the 
post-implementation period. As a consequence, and to that extent, the Appellate  Body also reversed 
the Panel's findings with respect to the European  Union's failure to establish that the pre -2007 
aeronautics R&D subsidies are  a genuine and substantial cause of any of the forms of serious 
prejudice alleged with respect to the A350XWB and the A320neo in the post -implementation period, 
through a technology causal mechanism.  
The Appellate  Body recalled that, in addition to the abo ve claim of error in the application of 
Articles  5, 6.3, and 7.8 of the SCM  Agreement, the European  Union  brought multiple claims 
challenging the Panel's findings that the European  Union  failed to establish that the technology 
effects of the pre -2007 aeronautics R&D subsidies continue into the post -implementation period. 
Because it had already reversed the Panel's ultimate findings regarding the acceleration effects of 
the pre -2007 aerona utics R&D subsidies, the Appellate  Body indicated that it need not consider the 
additional claims and arguments by the European  Union . 
Having reversed the Panel's findings, the Appellate  Body turned to assess the European  Union's 
request that the Appellate  Body complete the legal analysis and find that the pre -2007 aeronautics 
R&D subsidies cause: (i) original subsidy technology effects with respect to the 787 in the 
post-implementation period ; and (ii) spill -over technology effects with respect to the 787 -9/10, 
777X, and 737 MAX in the post -implementation period.  
The European  Union  maintained that, in determining the minimum counterfactual R&D time -frame 
for the 787 -8, a counterfactual time -frame of "up to 10 years" should be used. The European  Union 
submitted that this leads to a potential launch at a date leading "up to" 2012 (up to eight years later 
than the 787's actual launch) and possible promised first delivery up to 2016 (up to eight ye ars later 
than the 787's promised first delivery). Moreover, taking into account the delay for actual delivery 
of the 787 results in a counterfactual first delivery of the 787 -8 as late as 2019. The European  Union  
argued on appeal that the Appellate  Body "would merely need to confirm … that the first delivery of 
the 787, absent the non -withdrawn subsidies, would have been delayed until after 2012, i.e. after 
the end of the implementation period". However, the Appellate  Body did not consider that the 
complet ion exercise would be as straightforward as the European  Union  described it. Indeed, the 
participants contested the relevant time estimates for conducting the 787's counterfactual analysis. 
As a result, there were no uncontested facts with respect to the t ime that Boeing would have required 
for the 787's launch, its promised first delivery, or its actual first delivery, absent the pre -2007 
aeronautics R&D subsidies. Moreover, there were no findings by the Panel specifying a precise date WT/AB/30  
 
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  by which, absent the  pre-2007 aeronautics R&D subsidies, Boeing would have launched the 787. 
From the findings by the Panel, it was therefore unclear whether the counterfactual launch date of 
the 787 would have been around 2006, 2010, or some time in between those dates. In a ddition, 
because the Panel did not examine the impact of acceleration effects on the timing of the first 
delivery of the 787, it naturally did not specify when  the 787's first delivery would have occurred in 
the absence of these subsidies. Nor were there a ny findings by the Panel regarding the substantive 
assessment of whether there are any acceleration effects on post -launch R&D that might have had 
an impact on the timing of the counterfactual first delivery of the 787.  
Thus, the Appellate  Body considered that it had no basis to assess whether the promised 
first delivery of the 787 would have occurred before  or after the end of the implementation period. 
In a situation where the counterfactual launch would have taken place in 2006 or 2007, promised  
first de livery would have been in 2010 or 2011, that is, before  the end of the implementation period. 
Conversely, if the 787's counterfactual launch would have been in 2010, promised first delivery of 
this aircraft would have been scheduled for 2014. Similarly, be cause of the indeterminate nature of 
the counterfactual timing of the 787's launch, there were various uncertainties regarding the timing 
of the actual  first delivery of the 787. Indeed, in a situation where the counterfactual launch would 
have occurred in  2006, and on the basis of the assumption that there is a seven -year time lag 
between the 787's launch and its actual first delivery, the 787's actual first delivery could possibly 
have been in 2013, which would be shortly after the end of the implementati on period in September 
2012. Alternatively, in a situation where the counterfactual launch would have taken place at a 
moment closer to 2010, the 787's actual first delivery could have occurred, under these assumptions, 
at a date leading up to 2017. Given these very different outcomes based on different counterfactual 
launch dates, the Appellate  Body saw considerable uncertainty regarding which transactions would 
have become the subject of the serious prejudice analysis.  
Consequently, given the lack of suff icient factual findings by the Panel and uncontested facts on the 
Panel record, the Appellate  Body found that it was unable to complete the legal analysis with regard 
to whether there remain acceleration effects of the pre -2007 aeronautics R&D subsidies in  the 
post-implementation period.  
3.1.8   Price effects  
The European  Union  and the United  States  appealed different aspects of the Panel's analysis as to 
whether certain subsidies cause adverse effects through a price causal mechanism. The 
Appellate  Body examined: (i) the European  Union's claim relating to the causation standard adopted 
by the Panel in connection with its analysis of the effects of the tied tax subsidies; (ii)  the 
United  States' claim relating to the Panel's assessment of the relative significance o f the amount of 
the tied tax subsidies; and (iii)  the European  Union's claim relating to the Panel's analysis of the 
effects of the untied  subsidies.  
3.1.8.1   European  Union 's claim s relating to the Panel's causation standard  
The European  Union  appealed the Panel's  alleged finding that, in order for the tied tax subsidies to 
be found to cause significant lost sales through a price causal mechanism, there must be no 
non-price factors that potentially contributed to Boeing's success in obtaining such sales. The 
Europe an Union considered that, in stating that there must be "no non -price factors that explain 
Boeing's success in obtaining the sale", the Panel improperly elevated the Appellate  Body's approach 
to the completion of the legal analysis in the original proceedi ngs into the applicable legal standard 
for assessing causation. According to the European  Union , such an understanding is contrary to 
Articles  5 and 6.3 of the SCM  Agreement because the assessment as to whether there is a genuine 
and substantial relationsh ip of cause and effect does not require a determination that the subsidy is 
the sole cause of that effect.  
The question presented by the European  Union  was whether, notwithstanding the Panel's correct 
articulation of the legal standard, the Panel neverthel ess went on to apply an incorrect legal standard 
by demanding that, to establish causation, the European  Union must demonstrate that there were 
no other potential causes of the adverse effects. In support of its argument, the European  Union 
pointed to the repeated statement by the Panel that, in order for the sales campaigns at issue to be 
found to be particularly price -sensitive, there must be "no non -price factors that explain Boeing's 
success in obtaining the sale". The Appellate  Body noted that this sta tement originated from the WT/AB/30  
 
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  Appellate  Body's analysis in the original proceedings. There, the Appellate  Body stated that a sales 
campaign would be considered particularly price -sensitive when "Boeing was under particular 
pressure to reduce its prices in order to secure LCA sales in particular sales campaigns, and there 
are no other non -price factors that explain Boeing's success in obtaining the sale or suppressing 
Airbus' pricing".  
The European  Union  maintained that the Panel was wrong to have relied on the Appellate  Body's 
statement because, in attempting to complete the legal analysis in the original proceedings, the 
Appellate  Body was unable to do so with respect to sales campaigns where the panel record showed 
that there had been non -price factors cap able of explaining the outcome. The Appellate  Body noted, 
however, that when it had explained that causation could be established only when "there are no 
other non -price factors that explain Boeing's success" in a particularly price -sensitive sales 
campaig n, it was referring to the role of those non -price factors as weighed and balanced against 
factors relating to price. Only subsequently in its analysis did the Appellate  Body then recognize 
that, if any non -price factors had been advanced, this would have necessitated a non -attribution 
analysis of those factors as well as a weighing of price and non -price factors in its causation analysis, 
which would have entailed new factual findings. Therefore, although the European  Union  is correct 
that the Appellate  Body ultimately was able to complete the analysis only in instances where the 
United  States  had not advanced any non -price factors, this was due to the fact that the role and 
relevance of those non -price factors was contested, and thus no uncontested facts o r alternative 
panel findings were available. The Appellate  Body therefore rejected the European  Union 's 
contention that the Panel erred in elevating the Appellate  Body's approach to completing the legal 
analysis into the applicable legal standard. Rather, the Panel was relying on reasoning by the 
Appellate  Body that was reflective of the proper legal standard.  
In addition, having reviewed the Panel's reasoning in both the non -confidential summary of the sales 
campaign evidence contained in the body of the Panel  Report , as well as the more detailed 
explanations set out in the HSBI Appendix to the Panel  Report , the Appellate  Body did not find 
support for the proposition that the Panel adopted an approach to causation whereby it declined to 
consider whether su bsidies cause adverse effects in instances where any non -price factor or factors 
were advanced. Rather, the Panel's reasoning reflected a weighing and balancing of both price and 
non-price factors in determining, with respect to each sales campaign, the ex tent to which the sales 
campaigns were or were not particularly price -sensitive. This suggested to the Appellate  Body that, 
rather than declining to evaluate any sales campaign once a non -price factor was identified, the 
Panel in fact assessed whether non -price factors were such that they attenuated the role of price 
factors in explaining Boeing's success in obtaining the sale. The Appellate  Body further noted that, 
for three of the sales campaigns – Delta Airlines 2011, Icelandair 2013, and Air Canada 2013  – the 
United  States advanced particular factors other than price that were alleged to attenuate the effect 
of the subsidy in explaining why Boeing obtained the sale. The Panel nevertheless found for these 
sales campaigns that Boeing appeared to be under p articular pressure to reduce its prices in order 
to secure the sale, and there were no non -price factors that explain Boeing's success in obtaining 
the sale. In particular, the non -price factor that was identified by the Panel with respect to the 
Icelandai r 2013 sales campaign – which was found not to attenuate price as a causal factor – was 
the same non -price factor that was identified with respect to other sales campaigns for which the 
Panel found that non -price factors mitigated the role of price. This d emonstrated to the 
Appellate  Body that the Panel did not embrace a legal standard requiring that there must be no 
other non -attribution factors and that the subsidy must represent the only cause of the adverse 
effects.  
The Appellate  Body therefore conside red that the Panel's understanding of the legal standard 
properly reflected a weighing and balancing of price and non -price factors to reach a conclusion as 
to whether a sales campaign was particularly price -sensitive, such that the tied tax subsidies coul d 
be found to be a genuine and substantial cause of serious prejudice. Accordingly, the Appellate  Body 
found that the Panel did not err in the interpretation of Articles  5 and 6.3, and, as a consequence, 
Article  7.8 of the SCM  Agreement , when identifying t he applicable causation standard.  
3.1.8.2   United  States' claims relating to the Panel's assessment of the relative 
significance of the amount of the tied tax subsidies  
The United  States  requested the Appellate  Body to reverse the Panel's finding that the effects o f the 
tied tax subsidy at issue with respect to the single -aisle LCA market – namely,  the Washington State 
B&O tax rate reduction – are significant lost sales within the meaning of Article  6.3(c) of the WT/AB/30  
 
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  SCM Agreement and threat of impedance within the mean ing of Article  6.3(a) -(b) of that  Agreement. 
The United  States challenged two aspects of the Panel's assessment of the relative significance of 
the amount of the tied tax subsidy for purposes of determining whether the subsidy contributed in 
a genuine and substantial way to Airbus' loss of five specific sales campaigns between 2007 and 
2015 that the Panel had identified to be particularly price -sensitive. First, the United  States claimed 
that the Panel had erred under Articles  5 and 6.3 of the SCM  Agreement , or, in the alternative, had 
acted inconsistently with Article  11 of the DSU, in estimating the per -aircraft impact of the subsidy 
to be approximately US$1.99  million per the 737  MAX or 737NG. The United  States observed that 
the Panel's estimate was based  on an inappropriate assumption that Boeing was able to pool the 
benefits of the subsidy received in connection with all of its LCA sales and deploy such benefits to 
target only the particularly price -sensitive sales campaigns. Second, the United  States ar gued that, 
even assuming arguendo  that the Panel's estimate were correct, the Panel had still erred under 
Articles  5 and 6.3 of the SCM  Agreement, and/or had acted inconsistently with Article  11 of the DSU, 
in concluding that the subsidy is a genuine and s ubstantial cause of Airbus' loss of the five particularly 
price-sensitive sales campaigns, because the Panel had not established that the per -aircraft subsidy 
amount was large enough to explain the entirety of the differentials in Airbus' and Boeing's net prices 
in those sales campaigns.  
With respect to the Panel's estimated per -aircraft subsidy amount, the Appellate  Body agreed with 
the United  States that the Panel's calculation had assumed that Boeing was able to deploy the 
benefits of the tied tax subsid ies arising from all of its LCA sales to lower its LCA prices only in 
particularly price -sensitive sales campaigns. However, the Appellate  Body disagreed with the 
United  States that such an assumption necessarily contradicts the nature of the tied tax subs idy 
discussed by the Appellate  Body in the original proceedings or the Panel in these compliance 
proceedings. The Appellate  Body explained that, while the fact that the subsidies are granted with 
respect to individual sales speaks to the recipient's abilit y to reduce the price of each individual sale 
while nevertheless achieving the same profit margin for that sale, it does not mean that the recipient 
will always do so in the specific circumstances of each case. Rather, with respect to the present case, 
the Appellate  Body considered that the Panel's findings regarding the duration of the subsidy in 
question, the duopolistic conditions of competition in the LCA market, and the varying significance 
of price and non -price factors in different sales campaigns, a s well as the circumstances of individual 
sales campaigns, had provided a support for the Panel's proposition that Boeing would be highly 
incentivized to deploy the benefits of the tied tax subsidies arising from multiple LCA sales to target 
particularly p rice-sensitive sales campaigns.  
In addition, the Appellate  Body highlighted that Articles  5(c) and 6.3 of the SCM  Agreement  do not 
require a panel to quantify the precise per -unit impact of the subsidy for purposes of finding a 
genuine and substantial caus al link between the subsidy and alleged adverse effects. Accordingly, 
the Appellate  Body disagreed that the Panel's estimate of the per -aircraft subsidy amount constitutes 
a violation of Articles  5 and 6.3 of the SCM  Agreement. Rather, in the Appellate  Body's view, the 
Panel's assessment of the per -aircraft subsidy amount provided a useful estimate of the maximum 
extent to which Boeing would have been able to lower its prices with the use of the tied  tax subsidy 
for purposes of establishing the requisite ca usal link. The Appellate  Body declined to address the 
United  States' alternative claim under Article  11 of the DSU, stating that the Panel's assessment of 
the per -aircraft subsidy amount relates more properly to the application of the legal standard under 
Articles 5 and 6.3 of the SCM  Agreement  than to the objectivity of the Panel's assessment of the 
facts within the meaning of Article  11 of the DSU.  
With respect whether the Panel was required to establish that the per -aircraft subsidy amount 
explains the e ntirety of the differential in Airbus' and Boeing's net prices for purposes of reaching 
lost sales findings, the Appellate  Body recalled that one approach to assessing the existence of the 
requisite causal link between the subsidy and alleged serious preju dice is by recourse to a 
counterfactual analysis. The Appellate  Body explained that, where a complainant seeks to 
demonstrate lost sales through a subsidy's effects on the prices of the subsidized firm, a proper 
counterfactual test may entail a comparison between, on the one hand, the degree of price reduction 
made available with the use of the subsidy in the particular sale in question and, on the other hand, 
the degree of price difference that could have changed the outcome of that sale. However, the 
Appellate Body disagreed with the proposition that, when making such a comparison, a panel is 
necessarily required to establish that the former amount exceeds the latter. This is because, for 
example, in a situation where price is effectively the only consider ation for the customers' decision 
to purchase the product of the subsidized firm instead of the product of the competing firm, requiring 
the subsidy to explain the entirety of the pricing advantage of the subsidized firm may equate to an WT/AB/30  
 
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  overly stringent r equirement that the subsidy be the sole cause of the subsidized firm winning the 
sale. 
In addition, with particular respect to the LCA markets where competing aircraft are differentiated 
from each other in various respects, such as seating capacity and fli ght range, the Appellate  Body 
stated that the differential in net prices cannot be the exclusive indicator as to whether the subsidy 
contributed in a genuine and substantial way to the outcome of particular sales campaigns. In this 
context, the Appellate  Body noted that the Panel had based its lost sales findings not only on 
evidence pertaining to the net price differentials but also on evidence pertaining to the difference in 
the net present value (NPV) of Airbus' or Boeing's offer that can change the outc ome of highly 
competitive sales campaigns. Under these circumstances, the Appellate  Body disagreed with the 
United  States  that the Panel had erred merely because its conclusion was not based on a finding 
that the per -aircraft subsidy amount exceeds the dif ferentials in the net prices offered by Airbus and 
Boeing in the five sales campaigns. The Appellate  Body also addressed the United  States' more 
specific arguments regarding the Panel's analysis of each of the five individual sales campaigns, and 
rejected each of these arguments.  
Accordingly, the Appellate  Body found that the United  States had failed to demonstrate that the 
Panel had erred under Articles  5 and 6.3 of the SCM  Agreement, or had acted inconsistently with 
Article  11 of the DSU, in reaching its findings that the subsidy is a genuine and substantial cause of 
Airbus' loss of sales in the five sales campaigns, and consequently to significant lost sales within the 
meaning of Article  6.3(c) of the SCM  Agreement, and threat of impedance within the mean ing of 
Article  6.3(a) -(b) of that Agreement, in the post -implementation period. The Appellate  Body thus 
upheld the Panel's findings that the European  Union had established that the tied tax subsidies cause 
significant lost sales, within the meaning of Arti cles 5(c) and 6.3(c) of the SCM  Agreement, in the 
single -aisle LCA market, with respect to the Fly Dubai 2014, Icelandair 2013, and Air  Canada 2013 
sales campaigns, in the post -implementation period, as well as threat of impedance of imports of 
Airbus sing le-aisle LCA  to the United  States and exports of Airbus single -aisle LCA to the United Arab 
Emirates, within the meaning of Articles 5(c) and 6.3(a) and (b) of the SCM  Agreement , in the 
post-implementation period.  
3.1.8.3   European  Union 's claims relating to the Pa nel's analysis of the untied subsidies  
The European  Union requested the Appellate  Body to reverse the Panel's findings that the 
European  Union had failed to establish that the "untied subsidies" – consisting of various state and 
local cash flow subsidies a nd the post -2006 aeronautics R&D subsidies – are a genuine and 
substantial cause of adverse effects in the post -implementation period through a price causal 
mechanism. According to the European  Union, the Panel erred in the interpretation and application 
of Articles 5 and 6.3 of the SCM  Agreement  by requiring that, in order to demonstrate that the untied 
subsidies cause adverse effects, the European  Union must trace the dollars from the untied subsidies 
to actual price reductions of LCA sales. The European  Union further alleged that the Panel failed to 
make an objective assessment of the matter under Article  11 of the DSU by deviating from the 
Appellate  Body's findings in the original proceedings.  
The Appellate  Body noted that, unlike the tied tax subsidies,  the untied subsidies are not contingent 
on the production or sale of LCA on a per -unit basis, but instead increase Boeing's non -operating 
cash flow. The question, therefore, was under what circumstances subsidies to Boeing in the form 
of additional cash c an be found to cause adverse effects through a price causal mechanism. The 
Appellate  Body noted that, in the original proceedings, it had considered that the legal standard for 
causation could be established on the basis of its assessment of several factor s consisting of the 
conditions of competition, the magnitude of the subsidy, and whether there was a genuine link with 
relevant LCA production. The Panel, however, did not accept that such an approach was sufficient 
to establish that the subsidy was a genu ine cause of adverse effects. Instead, under the standard it 
adopted, the Panel also required an explanation of, or evidence concerning, the manner in which 
subsidies providing additional cash to Boeing would have altered its pricing strategy for a particu lar 
LCA programme. The Panel therefore appeared to have adopted a legal standard requiring that, in 
order for a causation finding to be sustained, it would be necessary to demonstrate that the subsidies 
at issue in fact altered Boeing's pricing  behaviour w ith respect to a particular LCA programme.  
The Appellate  Body did not consider that the legal standard adopted by the Appellate  Body in the 
original proceedings supported the Panel's view that, in order to establish that untied subsidies 
caused adverse eff ects through a price causal mechanism, it was required to find that the subsides WT/AB/30  
 
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  actually altered Boeing's LCA pricing behaviour for particular LCA programmes. For the 
Appellate  Body, this amounted to a requirement that the untied subsidies be the sole cau se, or only 
substantial cause, of the lowering of LCA prices, a causation standard that has previously been found 
to be too demanding. Instead, the Appellate  Body noted that, in the original proceedings, certain 
untied subsidies were found to have caused s ignificant lost sales because they "enhanced the pricing 
flexibility" that Boeing enjoyed by reason of the tied tax subsidies.  
The Appellate  Body noted, moreover, that, because the Panel rejected the European  Union 's reliance 
on the Appellate  Body's approach to demonstrating a genuine link between an untied subsidy and 
Boeing's pricing behaviour, it did not examine whether the purported links advanced by the 
European  Union  between the untied subsidies and certain relevant LCA programmes existed. 
Accor dingly, while the Panel acknowledged that "subsidies that reduce the fixed costs of a producer 
may be shown to impact prices", the Panel never examined the European  Union 's arguments and 
evidence in order to assess whether these purported links met the sta ndard set out by the 
Appellate  Body when it examined the City of Wichita IRB tax abatements. Therefore, even if, as the 
Panel stated, one should not interpret "what the Appellate  Body said in that particular context as 
setting forth an economic theory or l egal ruling regarding the basis on which untied subsidies, 
through their impact on the recipient's pricing behaviour, should be considered to be a genuine  cause 
of serious prejudice", the Panel did not consider how the situation in these compliance proceed ings 
mandated a result different from that found in the original proceedings.  
Therefore, the Appellate  Body found that the Panel erred under Articles  5 and 6.3 of the 
SCM Agreement by requiring that the European  Union demonstrate that the untied subsidies  actually 
led to price reductions of Boeing LCA sales in order to establish that the subsidies caused adverse 
effects through the lowering of Boeing LCA prices. The Appellate  Body therefore reversed the Panel's 
findings that the European  Union  had failed t o establish that the untied subsidies cause serious 
prejudice, within the meaning of Articles  5(c) and 6.3 of the SCM  Agreement, in the 
post-implementation period through a price causal mechanism. Having reversed this finding, the 
Appellate  Body did not ad dress whether, in addition, the Panel acted inconsistently with Article  11 
of the DSU.  
With respect to the European  Union's request for completion of the legal analysis regarding the 
untied subsidies, the Appellate  Body recalled that, in the original proce edings, it had adopted a 
"cumulation" approach in completing the legal analysis with respect to the effects of the untied 
subsidies. The Appellate  Body also noted that, in these compliance proceedings, the European  Union  
requested the Appellate  Body to fin d that the untied subsidies contribute to adverse effects through 
a price causal pathway in the same way that the untied subsidies had been found to contribute to 
adverse effects in the original proceedings. On that basis, the Appellate  Body turned to cons ider 
whether there were sufficient factual findings by the Panel and undisputed facts on the record to 
find that the effects of the untied subsidies "complement and supplement" the effects of the tied tax 
subsidies, which had been found to be a genuine and  substantial cause of adverse effects in the 
single -aisle LCA market, and thereby cause adverse effects within the meaning of Articles  5 and 6.3 
of the SCM  Agreement in the single -aisle LCA market.  
The Appellate  Body stated that, in the circumstances of this case, the legal standard for causation 
concerning the untied subsidies entailed an assessment of the conditions of competition, the 
magnitude of the subsidy, and whether there was a sufficient link between the subsidy and relevant 
LCA production. With particular respect to the existence of a link between the subsidy and 
LCA production, the Appellate  Body recalled that, in the original proceedings, it had found the 
requisite link between the City of Wichita IRB tax abatements and Boeing 's production of the 737NG 
because those IRBs were specifically aimed at, and were used for the purpose of, enhancing Boeing's 
manufacturing facilities in Wichita that were involved in part in production and assembly operations 
for the 737NG. This, togethe r with other relevant considerations, supported the Appellate  Body's 
conclusion that the Wichita IRBs enhanced the pricing flexibility that Boeing enjoyed by reason of 
the tied tax subsidies, thereby causing adverse effects within the meaning of Articles 5  and 6.3 of 
the SCM  Agreement. The Appellate  Body also recalled that, with respect to the other untied subsidies 
at issue in the original proceedings, it could not complete the legal analysis either because the 
original panel record had indicated that thes e subsidies were related to Boeing's general costs rather 
than directed at particular products or benefitted aircraft other than  the 737NG, or because there 
had been no panel findings or undisputed facts indicating that these subsidies had been received or  
expected to be received in connection with expenditures related to the 737NG.  WT/AB/30  
 
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  For purposes of determining whether it could complete the legal analysis in these compliance 
proceedings, the Appellate  Body examined whether there were sufficient Panel finding s or 
undisputed facts on the record establishing the requisite link between each of the four untied 
subsidies that the European  Union alleged had affected the prices of Boeing's single -aisle LCA. 
Having examined the Panel record regarding these subsidies' design, operation and application, the 
Appellate  Body concluded that there were no specific Panel findings or undisputed facts indicating 
that any of those subsidies had been generated in connection with production of the relevant LCA, 
or they had otherwis e enhanced Boeing's pricing flexibility for these LCA. Thus, the Appellate  Body 
found that it was unable to complete the legal analysis.  
3.1.9   Additional claims on appeal  
The Appellate  Body also noted that there were certain additional claims by the European  Union and 
conditional claims by the United  States  that it did not address because it did not consider their 
disposition necessary for the resolution of the dispute.  
First, the European  Union  claimed that the Panel erred in the interpretation of Articles 5, 6 .3, and  7.8 
of the SCM  Agreement  in finding that "a subsidized product can only cause serious prejudice to 
another product if the two products in question compete in the same market", as it related to the 
serious prejudice phenomena of significant price su ppression, price depression, and lost sales. The 
European  Union maintained that the Appellate  Body should instead interpret Article  6.3(c) to permit 
a finding of adverse effects in the form of significant price suppression, price depression, or lost 
sales where the subsidi zed product and the like product do not compete in the same market. The 
European  Union stated that, in requesting reversal of this Panel finding, it sought to enable the 
Appellate  Body, in completing the legal analysis, to find significant  lost sales in instances where the 
787-8/9 and the A350XWB -900 competed for the sale, even though the Panel placed these 
competing products into two separate product markets. The Appellate  Body noted the Panel's finding 
that there is no bright -line distinc tion between these markets and that, depending on the 
circumstances, certain larger medium -sized aircraft could be found to exercise meaningful 
competitive constraints on smaller larger -sized aircraft. In any event, in light of the disposition of 
other cla ims on appeal, and the fact that the Appellate  Body was not called upon to consider the 
European  Union 's request for completion of the legal analysis regarding the twin -aisle LCA markets, 
the Appellate  Body did not consider any potential competitive relati onship between the 787 -8/9 and 
the A350XWB -900 LCA and, therefore, did not address the European  Union's claim of error.  
The European  Union  also claimed that the Panel erred in the interpretation of Articles 5, 6.3, and  7.8 
of the SCM  Agreement  in purported ly finding that aggregation and cumulation of subsidies are the 
only two approaches to the collective assessment of the adverse effects of multiple subsidies. The 
European  Union  added that it sought reversal of the Panel's interpretation since it would be,  in the 
European  Union 's view, critical for the purposes of the Appellate  Body's completion of the legal 
analysis. The Appellate  Body recalled that it had previously found that "at least two approaches to 
a collective assessment of the effects of multiple subsidy measures may be used, namely, 
aggregation and cumulation." The Appellate  Body stated that, as this language suggests, the 
Appellate  Body had not excluded the existence of other methods for the collective assessment of the 
effects of multiple subsid ies. 
However, the Appellate  Body noted that it was unable to conclude that the untied subsidies were a 
genuine cause of adverse effects and that such a showing would have been required under the 
European  Union 's proposed approaches to the collective assess ment of multiple subsidies. Therefore, 
in light of its disposition of other claims on appeal, the Appellate  Body was not called upon to consider 
any such additional methods for the collective assessment of subsidies and, therefore, did not 
address the Euro pean Union's claim of error.  
Finally, the Appellate  Body noted that the United  States  had presented conditional claims regarding 
the Panel's benefit and specificity analyses concerning certain US government contracts, its benefit 
analysis concerning certai n South Carolina measures, and its finding regarding significant price 
suppression with respect to the A330. The Appellate  Body explained that, in light of its disposition 
of other claims on appeal, the conditions for each of these claims had not been trig gered.  WT/AB/30  
 
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  3.2  Appellate  Body Report, Korea – Import Bans, and Testing and Certification 
Requirements for Radionuclides , WT/DS495/AB/R  
This dispute concerned Korea's imposition of the following four measures in response to the 
Fukushima Dai -ichi Nuclear Power Plant (FDNPP) accident in March 2011: (i)  the additional testing 
requirements adopted in 2011 for non -fishery products from Japan (except livestock); (ii)  the 
product -specific import bans adopted in 2012 on Alaska pollock from one Japanese prefecture and 
on Pacific cod from five Japanese prefectures; (iii) the additional testing requirements adopted in 
2013 for fishery and livestock products from Japan; and (iv) the "blanket import ban" adopted in 
2013 on all fishery products from eight Japanese prefectures  in relation to 28 fishery products.  
Before the Panel, Japan claimed that all of Korea's challenged measures were inconsistent with 
Articles  2.3, 5.6, 7, and Annexes B(1) and B(3) to the Agreement on the Application of Sanitary and 
Phytosanitary Measures  (SPS Agreement ). Japan also claimed that the 2011 and 2013 additional 
testing requirements were inconsistent with Article  8 and Annexes C(1)(a), (c), (e), and (g) to the 
SPS Agreement. Korea requested the Panel to reject all of Japan's claims.  
Noting that K orea had referred to the provisional nature of its measures under Article  5.7 of the 
SPS Agreement, the Panel began its analysis with this provision. The Panel found that the measures 
at issue did not fulfil all the requirements under Article  5.7 and there fore did not fall within the scope 
of Article  5.7.  
In relation to whether Korea's measures were more trade -restrictive than required under Article  5.6 
of the SPS  Agreement, the Panel examined the alternative measure suggested by Japan, i.e.  testing 
for ca esium only and rejecting any food products with caesium levels over 100  becquerel 
per kilogram  (Bq/kg). The Panel considered this alternative measure as technically available, 
economically feasible, significantly less trade -restrictive than Korea's measure s, and capable of 
achieving Korea's appropriate level of protection (ALOP). The Panel then found that the 2011 
additional testing requirements and the product -specific import bans were not more trade -restrictive 
than required when adopted , but at the time of the establishment of the Panel they were maintained  
inconsistently with Article  5.6 because they were more trade -restrictive than required. The Panel 
also found that the 2013 additional testing requirements and the blanket import ban were adopted  
(excep t for the ban on Pacific cod from Fukushima and Ibaraki) and maintained  inconsistently with 
Article  5.6 because they were more trade -restrictive than required to achieve Korea's ALOP.  
In relation to whether Korea's measures arbitrarily or unjustifiably dis criminate between Members 
where identical or similar conditions prevail under the first sentence of Article  2.3 of the 
SPS Agreement, the Panel first assessed whether similar conditions prevail in Japan and other 
Members. The Panel considered that the rele vant conditions to be compared under Article  2.3 to be 
"whether products from Japan and the rest of the world have a similar potential to be 
contaminated  … and whether the levels of contamination would be below Korea's tolerance levels" 
for certain radionu clides. Based on the views of the experts the Panel had appointed and data on 
contamination levels of food products from Japan and other origins, the Panel found that similar 
conditions prevailed in Japan and other Members with regard to the adoption of ce rtain measures in 
2013 and with regard to the maintenance of all of the challenged measures. The Panel further found 
that the discriminatory treatment under Korea's measures was not rationally connected to Korea's 
regulatory objective of protecting Korea's  population against the risk arising from consumption of 
contaminated food products. The Panel thus found arbitrary or unjustifiable discrimination where 
similar conditions prevail in relation to the adoption of certain measures in 2013 and in relation to 
the maintenance of all of the challenged measures. Finally, in relation to whether Korea's measures 
were applied in a manner which would constitute a disguised restriction on international trade under 
the second sentence of Article  2.3, the Panel found tha t Korea's measures "constitute equally a 
disguised restriction on international trade" based on the Panel's finding of arbitrary or unjustifiable 
discrimination.  
In relation to the obligations concerning control, inspection and approval procedures under Ar ticle 8 
and Annex C to the SPS  Agreement, the Panel found that Japan failed to establish that Korea acted 
inconsistently with Annexes C(1)(a), (c), (e), and (g) and Article  8 with respect to the adoption and 
maintenance of the 2011 and the 2013 additional testing requirements. In particular, with respect 
to Annex  C(1)(a), the Panel found that Japan had failed to demonstrate that Japanese imported 
products and Korean domestic products could be presumed to be "like" under this provision.  WT/AB/30  
 
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  In relation to the tr ansparency obligations under Article  7 and Annex B to the SPS  Agreement, the 
Panel first found that Annex B(1) requires that the publication of an SPS regulation contain sufficient 
content that the interested Member will know "the conditions (including spe cific principles and 
methods) that apply to its goods". The Panel then found that Korea acted inconsistently with 
Annex  B(1) because it had failed to publish the measures in such a manner as to enable Japan to 
become acquainted with them. Turning to Annex  B(3), the Panel found that Korea acted 
inconsistently with this provision because Korea's SPS enquiry point provided an incomplete 
response to Japan's first request and failed to respond to Japan's second  request.  
3.2.1   Article  5.6 of the SPS  Agreement: "more tr ade-restrictive than required to achieve" 
Korea's A ppropriate Level of Protection  
Korea appealed the Panel's finding that Korea had acted inconsistently with Article  5.6 of the 
SPS Agreement with respect to: (i)  the adoption of the blanket import ban (exce pt for the ban on 
Pacific cod from Fukushima and Ibaraki) and the 2013 additional testing requirements; and (ii)  the 
maintenance of all of Korea's measures. Korea contested the Panel's findings relating to the 
achievement of Korea's ALOP by an alternative measure proposed by Japan, arguing that the Panel 
effectively applied an incorrect ALOP. In particular, Korea contended that, after initially accepting 
Korea's ALOP, the Panel then proceeded to apply a quantitative standard of 1  millisievert per year 
(mSv/ year) as Korea's ALOP while disregarding other elements of its ALOP, including maintenance 
of levels of radioactive contamination in food as low as reasonably achievable (ALARA), below the 
1 mSv/year radiation dose limit, at a level that exists in the ordi nary environment. Japan responded 
that the Panel correctly determined and applied Korea's ALOP.  
Under Article  5.6, a complainant must establish that an alternative  measure: (i) is reasonably 
available taking into account technical and economic feasibility;  (ii) achieves the Member's ALOP; 
and (iii) is significantly less restrictive to trade than the contested SPS measure.  Annex A(5) to the 
SPS Agreement defines the "appropriate level of sanitary or phytosanitary protection" as "[t]he level 
of protection dee med appropriate by the Member establishing a sanitary or phytosanitary measure 
to protect human, animal or plant life or health within its territory".  
The main issue raised by Korea in this appeal was whether the Panel applied an incorrect ALOP in 
its asse ssment of the alternative measure proposed by Japan. The Appellate  Body observed that, in 
setting out the relevant ALOP for its analysis, the Panel stated that it must determine whether 
Japan's alternative measure achieves the following level of protection : 
[T]o maintain radioactivity levels in food consumed by Korean consumers at levels that 
exist in the ordinary environment – in the absence of radiation from a major nuclear 
accident – and thus maintain levels of radioactive contamination in food that are "as 
low as reasonably achievable" (ALARA), below the 1 mSv/year radiation dose limit.  
The Appellate  Body noted that this formulation of the relevant ALOP, as articulated by Korea and 
accepted by the Panel, consists of both qualitative and quantitative aspe cts concerning radioactivity 
levels in food consumed by Korean consumers, namely: (i) the levels that exist in the ordinary 
environment; (ii) ALARA; and (iii) the quantitative dose exposure of 1 mSv/year. The Appellate  Body 
reviewed the Panel's analysis an d observed that, despite recognizing that Korea's ALOP comprises 
several elements, various statements throughout the Panel's analysis reflected a predominant focus 
on exposure below 1  mSv/year as a decisive indicator of whether Japan's proposed alternative  
measure would meet Korea's ALOP.  
While neither Article  5.6 nor Annex A(5) to the SPS  Agreement precludes a Member's ALOP from 
containing multiple elements, the Appellate  Body considered that the Panel did not clearly resolve 
whether each of the elements a t issue represented a distinct component of Korea's ALOP, and how 
these elements interact as parts of Korea's overall ALOP. Further, the Panel did not resolve whether 
the qualitative aspects of Korea's ALOP were fully comprised by the 1  mSv/year dose limit , such that 
an alternative measure achieving exposure below that quantitative threshold would necessarily 
achieve the qualitative level of protection represented by the ALARA element and maintenance of 
radioactivity levels in food at levels that exist "in the ordinary environment". The Appellate  Body 
also considered that the Panel's findings as to the achievement of exposure "below" or "significantly 
lower" than 1 mSv/year did not clearly correspond to the other elements of the relevant ALOP. 
Moreover, the Appellate  Body did not consider the achievement of the multi -faceted ALOP accepted WT/AB/30  
 
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  by the Panel to follow automatically from the Panel's observations as to the "conservative" nature 
of the proposed alternative measure.  
The Appellate  Body recalled that a pa nel must ascertain the respondent's ALOP on the basis of the 
totality of the arguments and evidence on the record, which may include evidence of the level of 
protection reflected in the SPS measure actually applied. Where a panel considers that a 
responden t's ALOP differs from that articulated by the respondent, the panel must clearly explain 
what it has determined the respondent's ALOP to be, along with the reasons and evidentiary basis 
for the panel's determination.  Despite certain statements by the Panel  that could have called into 
question whether the ALARA principle or radioactivity levels that exist in the ordinary environment 
can serve as part of a meaningful ALOP, the Panel did not resolve the issue and did not make any 
finding to this effect.  Ultima tely, the Panel accepted Korea's own formulation of the relevant ALOP 
as the level of protection that would need to be achieved by Japan's alternative measure.  
The Appellate  Body concluded that, while the Panel accepted Korea's articulation of a multi -faceted 
ALOP, its analysis focused on the quantitative element of 1 mSv/year. The Panel reached conclusions 
with respect to Japan's alternative measure that left unclear whether it considered the alternative 
measure to satisfy all of the elements of Korea's AL OP it had identified. The Panel's findings 
effectively subordinated the elements of ALARA and radioactivity levels "in the ordinary 
environment" to the quantitative element of exposure below 1 mSv/year, in a manner that was at 
odds with the articulation of  the ALOP explicitly accepted by the Panel at the outset of its analysis.  
The Appellate  Body thus found that the Panel erred in its application of Article  5.6 of the 
SPS Agreement in finding that Japan's proposed alternative measure achieves Korea's ALOP.  
Consequently, the Appellate  Body reversed the Panel findings at issue.  
3.2.2   Article  2.3 of the SPS  Agreement – arbitrary or unjustifiable discrimination 
"between Members where identical or similar conditions prevail"  
Korea appealed the Panel's findings that Korea had acted inconsistently with Article  2.3 of the 
SPS Agreement with respect to: (i)  the adoption of the blanket import ban (except for the ban on 
Pacific cod from Fukushima and Ibaraki) and the 2013 additional testing requirements; and (ii) the 
maintenance of all of Korea's measures.  Korea challenged the Panel's interpretation and application 
of Article  2.3, first sentence, concerning whether "similar conditions prevail" between the territories 
of Japan and other Members,  and whether Kor ea's measures result in arbitrary or unjustifiable 
discrimination. In particular, Korea challenged the Panel's interpretation with respect to the scope 
of the conditions that must be compared under Article  2.3, and argued that the Panel applied an 
incorrec t standard that focused exclusively on the risk present in products as the relevant condition. 
Korea emphasized the relevance of environmental and ecological conditions in Japan and the status 
of the FDNPP, as well as factors related to radionuclide disper sion and contamination, in arguing that 
the Panel improperly focused on the contamination levels of products to the exclusion of other 
relevant conditions. Japan submitted that the Panel correctly found that similar conditions prevail 
between Japanese food  products and products from other sources, arguing that the Panel considered 
all relevant factors and properly accounted for them.  
Under the first sentence of Article  2.3, a complainant bears the burden of establishing that a measure 
arbitrarily or unjusti fiably discriminates between Members where identical or similar conditions 
prevail, including between their own territory and that of other Members. Article  2.3 therefore 
requires demonstrating as a threshold matter that "identical or similar conditions pr evail" between 
Members. The Appellate  Body has said that identifying the relevant conditions, and assessing 
whether they are identical or similar, will often provide a good starting point for an analysis under 
Article  2.3, first sentence. In this regard, " conditions" relating to the particular objective pursued 
and risks addressed by the SPS measure in question are relevant for the analysis under Article  2.3 
of whether identical or similar conditions prevail between Members.  
With regard to the Panel's inter pretation of the relevant "conditions" under Article  2.3, the 
Appellate  Body considered that the Panel correctly recognized that the regulatory objective of a 
measure should inform the determination of the relevant conditions under Article  2.3. The 
Appella te Body agreed with the Panel's conclusion that the conditions referred to in Article  2.3 may 
be construed to "include those found in products and not just the territory of an exporting or 
importing Member". The Appellate  Body disagreed, however, with the Panel's conclusion that WT/AB/30  
 
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  Article  2.3 permits consideration of the "risk present in products in international trade as the relevant 
condition" because this would not give appropriate weight to all other relevant conditions under 
Article  2.3. While the analys is under Article  2.3 may include consideration of conditions that can be 
characterized as being present in the products from different Members, a proper interpretation of 
Article  2.3 includes consideration of other relevant conditions, such as territorial conditions 
(including ecological and environmental conditions), to the extent they have the potential to affect 
the products at issue. The analysis under Article  2.3 thus entails consideration of all relevant 
conditions in different Members, including terr itorial conditions that may not yet have manifested in 
products but are relevant in light of the regulatory objective and specific SPS risks at issue.  
The Appellate  Body thus found that the Panel erred in its interpretation of Article  2.3 when it 
concluded  that this provision permits consideration of the "risk present in products in international 
trade as the relevant condition" because the Appellate  Body understood the Panel to have concluded 
that the scope of relevant "conditions" under Article  2.3 may be  exclusively limited to "the risk 
present in products".  
Turning to the Panel's application of Article  2.3, the Appellate  Body noted that the "relevant 
conditions" identified by the Panel for the purposes of Article  2.3 concern "whether products from 
Japan and the rest of the world have a similar potential to be contaminated" with certain 
radionuclides, and "whether the levels of contamination would be below Korea's  tolerance levels".  
The Appellate  Body reviewed the Panel's assessment of "the source of radio active contamination", 
including "major releases of man -made radionuclides" and contamination of the global environment 
prior to the FDNPP accident. The Appellate  Body noted that the Panel's findings concerning past 
releases of radionuclides referred gener ally to the potential for contamination, without accounting 
for any degree of contamination or differentiating the relative potential for contamination in different 
territories. The Appellate  Body considered that the Panel's conclusion as to "the potential  to be 
contaminated with radionuclides", without regard to any specific source or relative degree, appeared 
to conflict with some of the Panel's intermediate observations concerning the sources of worldwide 
contamination. The Appellate  Body cited various s tatements by the Panel indicating that particular 
release events may be capable of increasing the potential for contamination of food within a specified 
geographical location or territory.  
To the Appellate  Body, although aspects of the Panel's reasoning ap peared to suggest that 
radionuclide dispersion is not globally uniform across different territories, the Panel's conclusion 
concerning environmental contamination made no distinction between territories as it relates to the 
relative degree of potential for  food contamination. The Appellate  Body also considered that the 
Panel's conclusion regarding environmental contamination, as well as its general assessment of 
territorial conditions surrounding the FDNPP in relation to other territories, did not reflect a  number 
of factors that the Panel had identified as affecting radionuclide contamination of different areas.  
The Appellate  Body then reviewed the Panel's assessment of "the levels of radionuclides in food" 
based on data provided by Japan, and the Panel's c omparison of the potential for contamination in 
Japanese products with those of other origins. The Appellate  Body observed that the Panel's 
assessment of Japanese food focused on actual – not potential – levels of contamination for different 
products durin g different time periods, with emphasis on Korea's "tolerance level" for the relevant 
radionuclide.  
With regard to the Panel's comparison of the potential for contamination in food of Japanese and 
other origins, the Appellate  Body considered the Panel's an alysis to reflect the contradiction 
between, on the one hand, the Panel's generalized description of global radionuclide contamination 
and, on the other hand, its observation of conditions related to specific events and locations. In the 
Appellate  Body's v iew, this apparent gap in the Panel's reasoning was unresolved in the Panel's 
concluding comparisons on the existence of "similar conditions" for Japanese and non -Japanese 
products, which reflected the Panel's focus on the presence of contamination in food  without 
accounting for differences in territorial conditions affecting the potential for contamination.  
The Appellate  Body recalled that the Panel identified the relevant "conditions" to be compared as 
being the "potential to be contaminated" with the rel evant radionuclides, and "whether the levels of 
contamination would be below Korea's tolerance levels". The Panel did not explicitly indicate that 
similarity based on contamination levels below a certain tolerance level would necessarily amount WT/AB/30  
 
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  to similar "potential" to be contaminated generally. Rather, the Panel presented these as combined 
elements of the relevant "conditions" that would need to be demonstrated to be "similar" for the 
purposes of Article  2.3. While the "potential to be contaminated" appea red to concern a question of 
degree, taking into account Korea's regulatory objective, the Appellate  Body considered the Panel's 
comparison of "conditions" under Article  2.3 to be effectively based on actual radionuclide 
concentration levels in samples of food products as measured against quantitative tolerance levels 
corresponding to each radionuclide.  
The Appellate  Body therefore agreed with Korea's claim on appeal that the Panel erred in the 
application of Article  2.3 by focusing on product test data wit hout properly accounting for whether 
the territorial conditions in Japan and the rest of the world were similar within the meaning of 
Article  2.3. 
The Appellate  Body thus found that the Panel erred in its interpretation and application of Article  2.3 
in finding that similar conditions prevail between Japan and other Members. Consequently, the 
Appellate  Body reversed the Panel findings at issue. In light of the reversal of the Panel's findings 
regarding the existence of "similar conditions" within the meanin g of Article  2.3, the Appellate  Body 
considered that it was not necessary to address Korea's additional claims of error regarding arbitrary 
or unjustifiable discrimination, and whether Korea's measures constituted disguised restrictions on 
international tr ade. 
3.2.3   Article  5.7 of the SPS  Agreement: provisional measures  
On appeal, Korea challenged the Panel's finding that its measures did not fulfil the requirements of 
Article  5.7 of the SPS  Agreement. First, Korea claimed that the Panel was not authorized to mak e 
findings under  Article  5.7 and thus erred under Articles  6.2, 7, and 11 of the DSU. Second, Korea 
claimed that the Panel made several errors in its interpretation and application of Article  5.7 in 
finding that Korea's measures do not meet the requirement s of this provision. In particular, Korea 
claimed that the Panel erred in allocating the burden of proof under Article  5.7 to Korea. Korea also 
claimed that the Panel erred in finding that: (i)  relevant scientific evidence was "not insufficient" 
with respe ct to the product -specific import bans, the blanket import ban, and the 2013 additional 
testing requirements; (ii)  the blanket import ban and the 2013  additional testing requirements were 
not adopted on the basis of available pertinent information; and (ii i) Korea did not review its 
measures within a reasonable period of time.  
The Appellate  Body recalled that Articles  7 and 11 of the DSU concern the terms of reference and 
the function of panels, respectively. The Appellate  Body further recalled that t he mea sures and the 
claims identified in the panel request constitute the "matter referred to the DSB", which serves as a 
basis for the panel's terms of reference under Article  7.1 of the DSU. Under that provision, unless 
the parties agree otherwise, panels shal l have the following 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)." The Appellate  Body also referred to Article  7.2 of the DSU, which 
specifies that panels shall address the relevant provisions in an y covered agreement or agreements 
cited by the parties to the dispute. Turning to Article  11 of the DSU, the Appellate  Body observed 
that this provision also refers to the "matter" that is before panels.  
The Appellate  Body considered that a panel's mandat e, as reflected in Articles 7.1 and 11 of the 
DSU, is to examine the "matter" before it in light of relevant provisions of the covered agreements 
cited by the parties and to make such findings as will assist the DSB in making the recommendations 
or in givi ng the rulings provided for in the covered agreements. The Appellate  Body stated that 
parties may refer to a WTO provision merely to serve as relevant context  to the interpretation of 
other WTO provisions identified in the "matter" before a panel. Accordin g to the Appellate  Body, in 
such cases, while Article  7.2 of the DSU requires panels to "address the relevant provisions in any 
covered agreement … cited by the parties", a panel's mandate does not extend to making findings 
as to the consistency of the mea sure at issue with a provision cited as mere interpretative context.  
In this dispute, Japan did not make a claim of inconsistency under Article  5.7 of the SPS  Agreement 
in its panel request. Instead, it was Korea's rebuttal arguments before the Panel that prompted the 
Panel to examine Korea's measures under Article  5.7. Thus, the Appellate  Body consi dered that the WT/AB/30  
 
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  issue before it was whether, in light of Korea's references to Article  5.7, the Panel was correct to 
make findings as to the consistency of Korea's measures with each of the requirements of Article  5.7. 
The Panel record showed that Korea had  not alleged before the Panel that its measures would be 
justified or exempted from the obligations contained in Articles  2.3, 5.6, 7, and 8 and Annexes  B 
and C to the SPS  Agreement, by virtue of their alleged provisional nature under Article  5.7 of the 
SPS Agreement. Korea also had not argued that there are two sets of obligations for provisional 
measures and definitive measures under Articles  2.3 and 5.6. Rather, the Appellate  Body considered 
that Korea's main argument before the Panel had been that a par ticular situation  – namely, the 
alleged insufficiency of scientific evidence to conduct an assessment of the risk associated with the 
consumption of certain food products from Japan – was relevant to the assessment of Japan's claims 
under Articles  2.3 and 5.6. Given the nature of Korea's reliance on Article  5.7 as mere context, the 
Appellate  Body considered that the Panel was called upon to explore the relevance of the alleged 
insufficiency of relevant scientific evidence in examining the consistency of Kor ea's measures with 
Articles  2.3 and 5.6. In addition, the Appellate  Body considered that the Panel was called upon to 
explore whether Article  5.7 provides relevant context to the interpretation of certain provisions of 
the SPS  Agreement at issue in this di spute. To the Appellate  Body, Korea's reliance on Article  5.7, 
as context for other claims, did not entitle the Panel to make findings as to the consistency of Korea's 
measures with Article  5.7. 
In light of the manner in which Korea had referred to Article  5.7 before the Panel, the Appellate  Body 
concluded that, by making findings as to the consistency of Korea's measures with Article  5.7, the 
Panel had exceeded its mandate, thereby acting inconsistently with Articles  7.1 and 11 of the DSU. 
For this reason,  the Appellate  Body declared the Panel's findings under Article  5.7 of the 
SPS Agreement moot and of no legal effect. Having  mooted the Panel's findings under Article  5.7 of 
the SPS  Agreement, the Appellate  Body did not consider it necessary to examine fur ther Korea's 
other claims of error in relation to those same Panel's findings.  
3.2.4   Panel's treatment of evidence  
Both Korea and Japan claimed on appeal that the Panel erred in its treatment of evidence when 
assessing the consistency of Korea's measures with Ar ticles 2.3 and 5.6 of the SPS  Agreement. 
Korea claimed that the Panel erred under Article  11 of the DSU by considering evidence that either 
was not available to the Korean authorities at the time of the adoption of the measures or did not 
exist at the time  of the Panel's establishment. In its Other Appeal, Japan claimed that the Panel 
erred in the interpretation and application of Articles 3.3 -3.4, 3.7, and 11 of the DSU, as well as the 
application of Articles 2.3 and 5.6 of the SPS  Agreement , by disregardi ng evidence relating to the 
situation after the Panel's establishment in its assessment of Japan's claims that the challenged 
measures were maintained inconsistently with the requirements of Articles  2.3 and 5.6.  
The Appellate  Body noted that Korea's and Japan's claims of error on appeal related to the Panel's 
application of Articles 2.3 and 5.6 of the SPS  Agreement to the facts of this dispute. The 
Appellate  Body recalled that it had reversed the Panel's findings of inconsistency under Articles 2.3 
and 5. 6. Given that the participants' claims of error concern Panel findings that the Appellate  Body 
had already reversed, the Appellate  Body did not consider it necessary to examine further these 
claims of error.  
3.2.5   Panel's expert selection  
Korea appealed the Pane l's decision to consult with two of the experts appointed by the Panel. Korea 
claimed that the Panel erred under Article  11 of the DSU by appointing these two  experts in disregard 
of Korea's due process  rights. Korea contended that the Panel should have fo und that there was an 
objective basis to conclude  that these experts' independence or impartiality was likely to be affected, 
or that there were justifiable doubts about their independence or impartiality.  
The Appellate  Body noted that Korea's claim of er ror concerned the Panel's application of 
Articles  2.3, 5.6, and 5.7 of the SPS  Agreement. The two experts at issue had provided responses 
to the majority of the questions posed by the Panel, and the Panel had relied on these responses in 
its assessment of the consistency of Korea's measures with Articles  2.3, 5.6, and 5.7. The 
Appellate  Body recalled that it had reversed the Panel's findings under Articles  2.3 and 5.6, and had 
declared the Panel's findings under Article  5.7 moot and of no legal effect. Cons equently, the WT/AB/30  
 
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  Appellate  Body did not consider it necessary to examine further Korea's claim of error on appeal 
regarding these experts.  
3.2.6   Annex B(1) to the SPS  Agreement: publication  
Korea appealed the Panel's finding that Annex B(1) to the SPS  Agreement requires that the 
publication of an SPS regulation contain sufficient content that the interested Member will know "the 
conditions (including specific principles and methods) that appl y to its goods". Korea claimed that 
the Panel erred in its interpretation of Annex B(1) by imposing additional obligations not included in 
this provision. Korea also appealed several aspects of the Panel's application of Annex  B(1) to the 
measures at issue  in this dispute. In particular, Korea claimed that the Panel erred in finding that: 
(i) the press release announcing the blanket import ban did not include the full product coverage of 
the measure; (ii) the press releases announcing the 2011 and 2013 addi tional testing requirements 
did not include sufficient content to enable Japan to know the conditions that would be applied to its 
goods; and (iii) Korea did not show that interested Members would have known to look to certain 
websites for information on e ach of the challenged measures. In addition, Korea claimed that the 
Panel erred under Article  11 of the DSU by finding that the Panel could not know whether the web 
addresses provided by Korea were available on the day Korea announced the measures at issue  and 
what content was available on that day. Japan contended that Korea's claims of error on appeal 
should be rejected.  
Annex B(1) to the SPS  Agreement requires Members to ensure that all adopted SPS regulations are 
published promptly in such a manner as t o enable interested Members to become acquainted with 
them. The Appellate  Body considered that, to enable interested Members to become acquainted with 
an adopted SPS regulation, an Annex B(1) publication must be accessible to interested Members 
and contain  sufficient information, including the product scope and the requirements of the adopted 
SPS regulation, to give the means to interested Members to become familiar with it. The precise 
content and amount of information that must be included in an Annex  B(1) publication to enable 
interested Members to become acquainted with an adopted SPS regulation will depend on the 
particular SPS regulation at issue.  
The Appellate  Body agreed with the Panel to the extent the Panel's reference to "conditions" meant 
the req uirements of the adopted SPS regulation. The Appellate  Body, however, modified  the Panel's 
finding to the extent that the Panel considered that Annex B(1) requires, in all cases, that the 
Annex  B(1) publication include the "specific principles and methods"  applicable to the products. The 
Appellate  Body found  instead that whether an Annex  B(1) publication needs to include the "specific 
principles and methods" may only be determined with reference to the specific circumstances of 
each case, such as the nature  of the SPS regulation at issue, the products covered, and the nature 
of the SPS risks involved.  
With respect to the publication of the blanket import ban, the Appellate  Body agreed with the Panel 
that the press release announcing this measure did not cont ain the full product scope of the ban. 
The Appellate  Body recalled that the press release at issue referred generally to "all fishery 
products". The Appellate  Body noted that Korea's notification to the WTO of the blanket import ban 
included algae, and tha t Korea confirmed, on appeal, that its notification accurately described the 
product scope of the blanket import ban. The Appellate  Body agreed with the Panel that the blanket 
import ban covered products that would normally be included in a category other than "fishery 
products". Thus, similarly to the Panel, the Appellate  Body considered that the press release at issue 
did not publish the blanket import ban in such a manner as to enable Japan to become acquainted 
with this ban. Therefore, the Appellate  Body found  that the Panel did not err in its application of 
Annex B(1) in finding that Korea acted inconsistently with Annex B(1) and Article  7 of the 
SPS Agreement by not publishing the full product scope of the blanket import ban.  
With respect to the public ation of the 2011 and 2013 additional testing requirements, the 
Appellate  Body agreed with the Panel that the press releases announcing these measures do not 
enable interested Members to become acquainted with the SPS regulations at issue because they do 
not include information on the levels of caesium (and iodine in the 2011 press release) that would 
trigger the additional testing; the specific radionuclides to be tested; the maximum levels for those 
radionuclides that would result in products being reject ed; and, in relation to the 2013 press release, 
the procedure and location of the testing required for the additional radionuclides. Therefore, the 
Appellate  Body found  that the Panel did not err in its application of Annex B(1) in finding that Korea 
acted  inconsistently with Annex B(1) and Article  7 of the SPS  Agreement by not publishing sufficient WT/AB/30  
 
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  information to enable Japan to become acquainted with the requirements of the 2011 and 2013 
additional testing requirements.  
With respect to the accessibility o f all SPS measures at issue, the Appellate  Body recalled that the 
publication of an adopted SPS regulation must be accessible to interested Members. Where an 
adopted SPS regulation is published in a manner that prevents interested Members from locating 
and accessing it, such publication could not be said to enable interested Members to become 
acquainted with the SPS regulation. The Appellate  Body noted Japan's argument before the Panel 
that the press releases announcing the measures at issue were not genera lly known and Japan's 
ability to become acquainted with the measures was inhibited by the location of the websites of 
various government authorities where the press releases were posted. The Appellate  Body 
considered that, in light of the case presented by  Japan, it was for Korea to provide some evidence 
or explanation that interested Members would have known to look to the websites indicated by Korea 
for information on the SPS measures at issue. That could have included a showing that these 
websites were t he customary locations in Korea to publish SPS regulations on certain products. 
Korea, however, had not provided the Panel with a clear explanation concerning whether interested 
Members would have been able to locate and access these press releases. The Ap pellate  Body thus 
found  that the Panel did not err in finding that Korea did not show that interested Members would 
have known to look to the websites indicated by Korea for information on the SPS measures at issue.  
Korea also claimed that the Panel erred  under Article  11 of the DSU in faulting Korea for not having 
provided archived versions of the webpages containing the press releases announcing the measures 
at issue. The Appellate  Body noted that the Panel record contained evidence that could be indicat ive 
of the publication dates of the press releases on the government websites provided by Korea. This 
evidence was not addressed by the Panel and is absent from its analysis. To the Appellate  Body, by 
disregarding such evidence, the Panel could not have co mplied with its duty under Article  11 of the 
DSU to conduct an objective assessment of the matter. Furthermore, the Appellate  Body noted that, 
while the Panel implicitly placed the burden of further confirming the publication dates of the press 
releases on  Korea, it never sought the relevant information from the parties to the dispute. The 
Appellate  Body observed that it is not enough for a panel to leave it to the parties to guess what 
proof the panel will require. Thus, in the present case, the Panel shou ld not have left it to Korea to 
anticipate, in the absence of a contestation of the publication dates by Japan, that it would be 
required to submit the archived versions of the webpages to prove the publication dates of the press 
releases on government web sites. Rather, to the extent the Panel considered it was necessary for it 
to have such evidence, it should have sought it from both parties to the dispute and should only 
then have drawn appropriate inferences. For these reasons, the Appellate  Body found  that the Panel 
acted inconsistently with Article  11 of the DSU in finding that it was unable to know whether the web 
addresses provided by Korea were available on the day Korea announced each of the SPS measures 
at issue and what content was available on th at day.  
The Appellate  Body explained that its finding that the Panel acted inconsistently with Article  11 of 
the DSU concerned only one of the bases for the Panel's ultimate finding that Korea failed to publish 
its SPS measures at issue in accordance with Annex B(1) to the SPS  Agreement. The Appellate  Body 
thus noted that the Panel's ultimate finding of inconsistency with Annex  B(1) was not affected.  
3.2.7   Annex B(3) to the SPS  Agreement: enquiry  point  
Korea claimed on appeal that the Panel erred in its interpre tation and application of Annex  B(3) of 
the SPS  Agreement in finding that Korea acted inconsistently with this provision because Korea's 
SPS enquiry point provided an incomplete response to Japan's first request and failed to respond to 
Japan's second  request for information. Japan argued that Korea's claims should be rejected.  
The Appellate  Body observed that the introductory clause of Annex B(3) provides that each Member 
"shall ensure that one enquiry point exists which is responsible for the provision of  answers to all 
reasonable questions from interested Members as well as for the provision of relevant documents". 
The Appellate  Body considered that a single failure of an enquiry point to respond would not in and 
of itself automatically result in an incon sistency with the obligation provided for in Annex B(3). 
Whether and the extent to which an enquiry point actually provides answers and documents are not 
irrelevant for the assessment under Annex B(3). Rather, it informs an assessment of whether "one 
enqui ry point exists which is responsible for the provision of answers to all reasonable questions 
from interested Members as well as for the provision of relevant documents" within the meaning of 
Annex B(3). This assessment requires an examination of all the r elevant factors, including the total WT/AB/30  
 
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  number of questions received by the enquiry point and the proportion of and the extent to which 
questions were answered, the nature and scope of the information sought and received, and whether 
the enquiry point repeate dly failed to respond. The Appellate  Body thus found  that the Panel erred 
in its interpretation of Annex B(3) in finding that a single failure of an enquiry point to respond to a 
request would result in an inconsistency with Annex B(3). Consequently, the A ppellate  Body 
reversed  the relevant Panel findings.  
With respect to the Panel's application of Annex B(3), the Appellate  Body noted that the Panel limited 
its analysis to the responsiveness of Korea's enquiry point only vis -à-vis the two requests submitted  
by Japan. To the Appellate  Body, this did not constitute a sufficient examination of all relevant factors 
necessary to determine whether Korea acted inconsistently with Annex B(3). In particular, the Panel 
did not assess: (i) the scope and nature of the i nformation sought through Japan's second request; 
(ii) how many requests had been received by Korea's enquiry point in total over a period of time 
and the proportion of questions that had been answered; and (iii)  whether the enquiry point 
repeatedly failed  to respond. Therefore, the Appellate  Body found  that that the Panel erred in its 
application of Annex B(3) in its assessment of whether Korea acted inconsistently with that provision. 
Consequently, the Appellate  Body reversed  the Panel findings at issue.  
3.2.8   Article  8 and Annex C(1)(a) to the SPS  Agreement: presumption of likeness  
Japan appealed the Panel's finding that Japan had failed to establish that imported and domestic 
products can be presumed to be "like" for the purposes of its claim under Annex C(1)( a) of the 
SPS Agreement. To Japan, the Panel erred in its interpretation and application of Annex  C(1)(a) in 
articulating the conditions in which likeness may be presumed under that provision and in finding 
that Japanese imported products subject to the 20 11 and 2013 additional testing requirements and 
Korean domestic products could not be presumed to be "like".  
At the outset, the Appellate  Body recalled that Annex C(1)(a) requires Members to ensure, with 
respect to any procedure to check and ensure the ful filment of SPS measures, that "such procedures 
are undertaken and completed without undue delay and in no less favourable manner for imported 
products than for like domestic products." The Appellate  Body then highlighted that Japan's appeal 
focused on the likeness requirement in the second clause of Annex C(1)(a) and, more particularly, 
on the Panel's decision not to presume the likeness of Japanese imported products and Korean 
domestic products for the purposes of Japan's claim of inconsistency under that clause.  
The Appellate  Body recalled that several panels had found, under the GATT  1994 and the General 
Agreement on Trade in Services  (GATS ), that, when a measure makes a distinction between products 
(or between services and service suppliers) based exclus ively on the origin of the products (or the 
services and the service suppliers), a complainant is not necessarily required to establish likeness 
based on the criteria traditionally employed as analytical tools for assessing likeness. Instead, these 
panels had found that, in such cases, likeness can be presumed. The Appellate  Body also referred 
to its report in Argentina – Financial Services , where it had endorsed this approach of presuming 
likeness in the context of Articles  II:1 and  XVII:1 of the GATS.  
The Appellate  Body recognized that this dispute was the first in which a panel had addressed the 
presumption of likeness in the context of the SPS  Agreement. The Appellate  Body further observed 
that, in its analysis, the Panel had accepted that, in principle,  likeness may be presumed for the 
purpose of Annex  C(1)(a) if a procedure distinguishes between products based exclusively on their 
origin. The Appellate  Body, however, was not convinced that the Panel could have done so under 
the SPS  Agreement without fur ther analysis. As the Appellate  Body emphasized, SPS  measures are 
defined in Annex  A(1) of the SPS  Agreement as measures applied to protect human, animal, or plant 
life or health from a certain risk or to prevent or limit certain damage from pests. In the 
Appellate  Body's view, in light of Annex  A(1), the question arose whether a procedure to check and 
ensure the fulfilment of SPS  measures is at all capable of making a distinction between products 
based exclusively  on their origin and thus whether likeness may be presumed in the context of 
Annex  C(1)(a). The Appellate  Body noted that the Panel had not explored that question.  
The Appellate  Body considered it, however, unnecessary to reach a conclusion regarding the Panel's 
view that likeness may be presumed u nder Annex  C(1)(a). The Appellate  Body agreed with the Panel 
that the 2011 and 2013 additional testing requirements do not draw a distinction between Japanese 
and Korean products based solely on origin. Thus, the Appellate  Body took the view that it was WT/AB/30  
 
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  inconsequential whether likeness may be presumed under Annex C(1)(a), because, in the particular 
circumstances of this case, the Panel, in any event, would not have been in a position to presume 
that Japanese and Korean products are "like" in relation to the  procedures at issue.  
The Appellate  Body then turned to examine whether its preliminary assessment should be 
maintained in light of Japan's arguments on appeal that challenged the Panel's finding that the 
measures at issue do not draw a distinction between  Japanese and Korean products based solely on 
origin. Ultimately, the Appellate  Body was not persuaded by Japan's arguments on appeal. In 
relation to this dispute, the Appellate  Body therefore saw no error in the Panel's decision to decline 
to presume like ness, which confirmed its view that it was not necessary for the purposes of Japan's 
claim of error on appeal to consider whether the presumption of likeness may at all be used in the 
context of Annex  C(1)(a).  
The Appellate  Body thus found  that the Panel d id not err in declining to presume that Japanese 
imported products and Korean domestic products are "like" for purposes of Annex  C(1)(a). 
Consequently, the Appellate  Body upheld  the Panel findings at issue.  
3.3  Appellate  Body Report, United  States – Countervai ling Duty Measures on Certain 
Products from China – Recourse to Article  21.5 of the DSU by China , WT/DS437/AB/RW  
This dispute concerns the imposition by the United  States of countervailing duties on a range of 
products from China, as well as the underlying investigations and determinations by the 
United  States Department of Commerce (USDOC) leading to the imposition of those duties.  
Before the original panel, China challenged several aspects of the USDOC's investigations and 
determinations. The original panel found, among other things, that: (i) the USDOC's public body 
determinations were inconsistent with Article  1.1(a)(1) of the SCM  Agreement ; (ii) the USDOC's 
rebuttable presumption that majority government -owned entities are public bodies was, as such, 
inconsistent with Article  1.1(a)(1) of the SCM  Agreement ; (iii) the USDOC's specificity 
determinations were incons istent with Article  2.1(c) of the SCM  Agreement ; and (iv) the USDOC's 
initiation of two investigations with respect to export restraints was inconsistent with Article  11.3 of 
the SCM  Agreement . At the same time, the original panel found that the USDOC did not act 
inconsistently with: ( i) Articles 14(d) or 1.1(b) of the SCM  Agreement  by rejecting in -country private 
prices in China in its benefit determinations; ( ii) Article  2.1(c) of the SCM  Agreement  by failing to 
identify the underlying subsidy programmes;  and ( iii) Article  12.7 of the SCM  Agreement  by not 
relying on facts available on the record. In the original proceedings, the Appellate  Body reversed the 
original panel's findings that the USDOC had not acted inconsistently with: (i)  Articles  14(d) 
or 1.1(b) of the SCM  Agreement , and found that the USDOC had impermissibly rejected in -country 
private prices in China; (ii) Article  2.1(c) of the SCM  Agreement , but found itself unable to complete 
the legal analysis in this regard; and (iii) Article  12.7 of the  SCM Agreement, but found itself unable 
to complete the legal analysis in this regard.  
To comply with the DSB recommendations and rulings, the USDOC revised 12 of the countervailing 
duty determinations at issue and maintained the related duties in place. I n the compliance dispute, 
which is the object of this appeal, China challenged the United  States' compliance measures: (i) the 
USDOC's preliminary and final determinations under Section  129 of the Uruguay Round Agreements 
Act (Section  129); (ii) the Public  Bodies Memorandum, both as a measure of general and prospective 
application and a measure relating to the Section  129 proceedings at issue; (iii) the original USDOC 
final countervailing duty determination in the Solar Panels investigation; (iv) certain su bsequent 
periodic and sunset reviews of the countervailing duty orders; and (v) all "instructions and notices" 
by which the United  States imposes, assesses, and/or collects cash deposits and countervailing 
duties in the proceedings at issue, and its ongoin g conduct in doing so.  
The Panel made several findings that were not appealed. With respect to China's claim under 
Article  32.1 of the SCM  Agreement , the Panel found that China had not demonstrated that the 
United  States  acted inconsistently with Article  32.1 of the SCM  Agreement in the Oil Country Tubular 
Goods ( OCTG ), Line Pipe, Pressure Pipe, and Solar Panels Section 129 proceedings. In addition, the 
Panel found that China had not demonstrated that the United  States  acted inconsistently with 
Article  2.2 of the SCM  Agreement in the Thermal Paper Section 129 proceeding; and that China had 
not demonstrated that the United  States acted inconsistently with Articles  11.3 and 12.7 of the 
SCM Agreement  in the two Magnesia Bricks administrative reviews. The Panel further found that WT/AB/30  
 
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  China had not demonstrated that the United  States  acted inconsistently with Article  21.3 of the 
SCM Agreement  in the Thermal Paper, Pressure Pipe, Line Pipe, Kitchen Shelving, OCTG, Wire 
Strand, Magnesia Bricks, Seamless Pipe, Print Grap hics and Aluminum Extrusions sunset reviews. 
Finally, with respect to the "ongoing conduct" of imposing, assessing, and collecting countervailing 
duty and cash deposits under the countervailing duty orders at issue, the Panel found that China 
had not demon strated the existence of "ongoing conduct" inconsistent with Articles 1.1(a)(1), 
1.1(b), 2.1(c), 2.2, 11.3, and  14(d) of the SCM  Agreement  and with Articles 19.1, 19.3, and 19.4 of 
the SCM  Agreement .  
The Panel also made several other findings that were ap pealed. In particular, the United  States  
appealed the compliance Panel's findings that: (i) several administrative reviews and sunset reviews 
issued under the countervailing duty orders at issue fell within the scope of the Panel's terms of 
reference; (ii)  the USDOC's Public Bodies Memorandum can be challenged "as such" as a rule of 
norm of general and prospective application falling within the purview of Article  21.5 of the DSU; 
(iii) the United  States  acted inconsistently with Articles 1.1(b) and 14(d) of the SCM  Agreement  in 
the OCTG, Solar Panels, Pressure Pipe, and Line Pipe Section 129 Proceedings because the USDOC 
"failed to explain … how government intervention in the market resulted in domestic prices for the 
inputs at issue deviating from a market determined price" and by failing "to provide a reasoned and 
adequate explanation for its rejection of in -country prices in its benchmark determinations"; and 
(iv) the United  States  acted inconsistently  with Article  2.1(c) of the SCM  Agreement  in the Pressure 
Pipe, Line Pipe, Lawn Groomers, Kitchen Shelving, OCTG, Wire Strand, Seamless Pipe, Print 
Graphics, Aluminum Extrusions, Steel Cylinders, and Solar Panels Section 129 proceedings because 
it failed t o adequately explain its conclusions regarding the existence of the relevant subsidy 
programmes.  
For its part, China appealed the Panel's findings that: (i) a public body determination under 
Article  1.1(a)(1) of the SCM  Agreement  does not require a particular degree or nature of connection 
between an identified government function and the particular financial contribution at issue; (ii) the 
USDOC's public body determinations are not based on mere ownership or control over an entit y by 
a government, without more; (iii) the Public Bodies Memorandum does not materially restrict the 
USDOC's discretion to act consistently with Article  1.1(a)(1); and (iv) that an investigating authority 
may reject available in -country prices if there is evidence of price distortion, and not only if there is 
evidence that a government "effectively determines" the price at which the good is sold within the 
country of provision.  
3.3.1   The Panel's terms of reference – Article  21.5 of the DSU  
The United  States requ ested the Appellate  Body to reverse the Panel's finding that certain measures, 
including several subsequent reviews fell within the Panel's terms of reference. The United  States 
submitted that the Panel had erred in finding that these measures fulfilled th e criteria employed in 
a series of prior disputes of having a sufficiently close nexus, in terms of nature, timing, and effects, 
to the declared measures taken to comply.  
The Appellate  Body recalled that in addressing the terms of reference in compliance proceedings 
under both the Anti -Dumping  Agreement and the SCM  Agreement , panels and the Appellate  Body 
had focused on the nexus, in terms of nature, timing, and effects, between subsequent reviews and 
the declared measure taken to comply. The Appellate  Body noted that the Panel had assessed the 
nexus between the relevant measures in this dispute and the recommendations and rulings of the 
DSB in terms of "nature", "timing", and "effects". Based on considerations relating to all three 
factors, the Panel found  that the interrelated effects of the USDOC's original determinations, 
Section  129 determinations, and administrative and sunset review determinations reflected a 
particularly close relationship for the purposes of Article  21.5 of the DSU and thus conclude d that 
the subsequent reviews at issue fell within the Panel's terms of reference.  
The Appellate  Body saw no merit in the United  States' contention that the Panel based its findings 
on a "superficial examination" of the relationship between the subsequent reviews at issue and the 
declared measures taken to comply, on the one hand, and the recommendations and rulings of the 
DSB, on the other hand. Having reviewed the Panel's analysis in light of the specific allegations of 
error raised by the United  States, the Appellate  Body concluded that the Panel had assessed 
correctly the scope of the measures falling within its terms of reference in these Article  21.5 
proceedings based on the criteria of their relationship in terms of nature, timing, and effects. 
Accord ingly, the Appellate  Body upheld Panel's findings that the subsequent reviews at issue and WT/AB/30  
 
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  the Final Determination in the original Solar Panels investigation fell within the Panel's terms of 
reference under Article  21.5 of the DSU.  
3.3.2   Public bodies – Article  1.1(a)(1) of the SCM  Agreement  
On appeal, China challenged the compliance Panel's finding that the USDOC's public body 
determinations in the relevant Section  129 investigations were not based on an improper legal 
standard under Article  1.1(a)(1) of the SCM  Agreement . In particular, China took issue with the 
Panel's reading of Article  1.1(a)(1) as not requiring "a particular degree or nature of connection in 
all cases between an identified government function and the particular financial contribution at 
issue". In China's view, the Panel's interpretation was incompatible with the Appellate  Body's reports 
in prior disputes, particularly US – Anti-Dumping and Countervailing Duties (China)  (DS379) and 
US – Carbon Steel (India)  (DS436). The thrust of China's posi tion was that it is not sufficient for an 
investigating authority to establish that a certain entity has a sufficiently close relationship with 
government to constitute a public body. That investigating authority must also establish that the 
entity concern ed is exercising a governmental function when engaging in the specific investigated 
conduct under subparagraphs (i) -(iii) or the first clause of subparagraph (iv)  of Article  1.1(a)(1). In 
response, the United  States submitted that the Panel had properly in terpreted Article  1.1(a)(1). For 
the United  States, the relevant question for a public body inquiry is not whether the investigated 
conduct  is governmental but rather whether the entity  engaging in the conduct is governmental. 
Thus, it suffices for an inve stigating authority to determine that, overall, the entity concerned has a 
sufficiently close relationship with government to find that entity to constitute a public body. In 
addition, at the oral hearing, the United  States made a request that the Appellat e Body adopt the 
United  States' position it had rejected in prior disputes that the definition of a public body is "any 
entity that a government meaningfully controls, such that when the entity is conveying economic 
resources, it is transferring the public 's resources".  
The Appellate  Body referred to its interpretation of Article  1.1(a)(i) in prior disputes, finding that a 
public body within the meaning of that provision is an entity that possesses, exercises or is vested 
with governmental authority, that a  public body determination hinges on whether one or more of 
these characteristics exist in a particular case, and that the question of what constitutes a public 
body is informed by which functions or conduct are of a kind that are ordinarily classified as 
governmental in the legal order of the relevant Member, as well as the classification and functions 
of entities within WTO Members generally. Further, the Appellate  Body recalled that a public body 
inquiry must be conducted on a case -by-case basis, having due regard to the core characteristics 
and functions of the relevant entity, its relationship with the government, the legal and economic 
environment prevailing in the country in which it operates. Depending on the specific circumstances 
of each case, evid ence relevant to a public body inquiry may include: (i) evidence that an entity is, 
in fact, exercising governmental functions, especially where such evidence points to a sustained and 
systematic practice; (ii) evidence regarding the scope and content of g overnment policies relating 
to the sector in which the investigated entity operates; and (iii)  evidence that a government 
exercises meaningful control over an entity and its conduct. The Appellate  Body cautioned that, 
when conducting a public body inquiry,  an investigating authority must evaluate and give due 
consideration to all relevant characteristics of the entity and examine all types of evidence that may 
be pertinent to that evaluation. Referring to the Appellate  Body report in US – Carbon Steel (Indi a), 
the Appellate  Body disagreed with the United  States' contention that a public body is "any entity 
that a government meaningfully controls, such that when the entity is conveying economic 
resources, it is transferring the public's resources". According to the Appellate  Body, this would 
conflate the relevant evidentiary  elements for a public body determination and the definition  of a 
public body.  
Based on this interpretation of Article  1.1(a)(1), the Appellate  Body rejected China's contention that 
the focus of a public body inquiry is on the conduct alleged to constitute a financial contribution, and 
instead found that the inquiry hinges on the entity  engaging in the conduct, its core characteristics, 
and its relati onship with government. This, noted the Appellate  Body, comports with the fact that a 
"government" in the narrow sense and a "public body" are both "governmental" in nature. Just as 
any act or omission by a government in the narrow sense can be deemed to c onstitute a measure 
attributable to a Member, so any act or omission by a public body is directly attributable to a Member 
irrespective of the nature of the act or omission itself. Once it has been established that an entity is 
a public body, then all cond uct of that entity shall be attributable to the Member concerned for 
purposes of Article  1.1(a)(1). The Appellate  Body recognized that an entity's conduct or practice 
may constitute evidence relevant to a public body inquiry. However, cautioned the Appella te Body, WT/AB/30  
 
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  the assessment of such evidence is aimed at answering the central question of whether the entity  
itself possesses the core characteristics and functions that would qualify it as a public body. The 
Appellate  Body added that while the conduct of an entity may constitute relevant evidence to assess 
its core characteristics, an investigating authority need not necessarily focus on every instance of 
conduct in which that relevant entity may engage, or on whether each such instance of conduct is 
connecte d to a specific "government function".  
Similarly, the Appellate  Body rejected China's position that, in order to "meaningfully control" an 
entity, a government must exercise control over the specific conduct that is alleged to constitute a 
financial contri bution. As the Appellate  Body observed, the type of inquiry that China described is 
more akin to the inquiry an investigating authority would undertake to assess, pursuant to the 
second clause of Article  1.1(a)(1)(iv), whether a government or public body h as "entrusted or 
directed" a private body to carry out one of the types of conduct listed in subparagraphs (i) -(iii). The 
Appellate  Body considered that to accept China's position would unduly blur the distinction between 
a public body inquiry and an "entr ustment or direction" inquiry. The Appellate  Body also took the 
view that its prior application of Article  1.1(a)(1) to Chinese state -owned commercial banks did not 
support China's position.  
Hence, the Appellate  Body upheld  the compliance Panel's interpre tation of Article  1.1(a)(1) as not 
prescribing a connection of a particular degree or nature that must necessarily be established 
between an identified government function and the particular financial contribution at issue. The 
Appellate  Body also upheld  the Panel's conclusion that China had failed to demonstrate that the 
USDOC's public body determinations in the relevant Section  129 proceedings are inconsistent with 
Article  1.1(a)(1) because they are based on an improper legal standard. The Appellate  Body noted 
that China had raised a number of additional claims in respect of the USDOC's public body 
determinations in the relevant Section  129 investigations. As these additional claims were 
conditioned upon the Appellate  Body's reversal of the Panel's interpr etation of Article  1.1(a)(1), the 
Appellate  Body did not address them.  
On appeal, China also challenged the compliance Panel's conclusion that the Public Bodies 
Memorandum was not, "as such", inconsistent with Article  1.1(a)(1) of the SCM  Agreement  because  
of being based on an improper legal standard. The thrust of China's position was that the analytical 
framework set out in the Public Bodies Memorandum allows the USDOC to find certain Chinese 
companies to be public bodies without inquiring into whether th ose entities are performing a 
government function when they engage in the alleged financial contributions. The Appellate  Body 
noted that China's position was based largely on the same grounds as its appeal of the compliance 
Panel's interpretation of Articl e 1.1(a)(1). Having upheld the Panel's interpretation that 
Article  1.1(a)(1) does not prescribe a connection of a particular degree or nature between an 
identified government function and the particular financial contribution at issue, the Appellate  Body 
did not find it necessary to further engage with China's challenge of the Panel's conclusion in respect 
of the Public Bodies Memorandum. The Appellate  Body also did not find it necessary to engage 
further with the participants' claims and arguments about wh ether the Public Bodies Memorandum 
(i) could be challenged "as such" as a rule or norm of general or prospective application"; and 
(ii) restricts in a material way the USDOC's discretion in making public body determinations.  
3.3.3   Benefit – Articles 1.1(b) and 1 4(d) of the SCM  Agreement  
On appeal, the United  States and China took issue with different Panel findings under Articles  1.1(b) 
and 14(d) of the SCM  Agreement. The United  States contended that the Panel erred in finding that 
the United  States "failed to ex plain … how government intervention in the market resulted in 
domestic prices for the inputs at issue deviating from a market -determined price" and "failed to 
provide a reasoned and adequate explanation for its rejection of in -country prices in its benchma rk 
determinations ". In turn, China sought to review of the Panel's finding that "an investigating 
authority may reject in -country prices if there is evidence of price distortion, and not only if there is 
evidence that a government 'effectively determines' the price of the goods at issue."  
With respect to the interpretation of Articles 1.1(b) and 14(d) of the SCM  Agreement , the 
Appellate  Body recalled its findings in US – Softwood Lumber IV that a determination of whether the 
remuneration paid for a governme nt-provided good is "less than adequate" under Article  14(d) 
requires the selection of a benchmark against which the price for the government -provided good 
must be compared, and that the market from which a benchmark is selected for the purpose of a 
benefi t analysis need not be completely undistorted or free of any government intervention. In this WT/AB/30  
 
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  respect the Appellate  Body noted that "the text [of Article  14(d)] does not explicitly refer to a 'pure' 
market, to a market 'undistorted by government interventi on', or to a 'fair market value'" and that 
the provision therefore "does not qualify in any way the 'market' conditions which are to be used as 
the benchmark". At the same time, the guideline in Article  14(d) "does not require the use of private 
prices in the market of the country of provision in every situation" but rather requires that "the 
method selected for calculating the benefit must relate or refer to, or be connected with, the 
prevailing market conditions in the country of provision, and must refle ct price, quality, availability, 
marketability, transportation and other conditions of purchase or sale". The Appellate  Body observed 
that in US – Softwood Lumber IV the situation of government predominance in the market, as a 
provider of certain goods, was the only one raised on appeal, and it had not excluded that there may 
be other situations in which recourse to out -of-country prices may be warranted.  
Subsequently, US – Anti‑Dumping and Countervailing Duties (China) , the Appellate  Body clarifi ed 
that the concept of "price distortion" is central to the analysis of whether recourse to out -of-country 
prices is warranted under Article  14(d) by highlighting that what would allow an investigating 
authority to reject in -country private prices is price distortion , not the fact that the government is 
the predominant supplier per se . Importantly, "the decision to reject in -country prices as the 
benchmark due to the role of the government in the market for the good in question can only be 
made on a case -by-case basis, in accordance with the relevant evidence in the particular 
investigation, rather than in the abstract."  
In sum, the Appellate  Body stated that the central inquiry under Article  14(d) in choosing an 
appropriate benefit benchmark is whether gov ernment intervention results in price distortion  such 
that recourse to out -of-country prices is warranted, or whether instead in -country prices of private 
enterprises and/or government -related entities are market -determined  and can therefore serve as 
a bas is for determining the existence of benefit. Thus, what would allow an investigating authority 
to reject in -country prices is a finding of price distortion resulting from government intervention in 
the market, not the presence of government intervention in  the market itself. What an investigating 
authority must do in conducting the necessary analysis therefore will vary depending upon the 
circumstances of the case, the characteristics of the market being examined, and the nature, 
quantity, and quality of th e information supplied by petitioners and respondents, including such 
additional information an investigating authority seeks so that it may base its determination on 
positive evidence on the record. The Appellate  Body emphasized that, i n all cases, the investigating 
authority must provide a reasoned and adequate explanation of the basis for its conclusions in its 
determination , and only o nce it has properly established and explained why in -country  prices are 
distorted, is it warranted to have recourse to a n alternative benchmark for the benefit analysis under 
Article  14(d).  
3.3.3.1   Whether the Panel erred in its interpretation of Article  14(d) of the 
SCM Agreement in finding that recourse to out -of-country prices is not limited to 
circumstances in which the governm ent "effectively determines" the price of the goods in 
question  
China requested the Appellate  Body to modify the basis for the Panel's conclusion that the 
United  States acted inconsistently with Articles  1.1 and 14(d) of the SCM  Agreement, and affirm the 
Panel's finding of inconsistency on the ground that the USDOC did not determine that domestic 
Chinese prices for the relevant inputs were effectively determined by the government. China argued 
that, while the Panel correctly found that "an investigating aut hority must demonstrate causation  
[between government intervention and price distortion] in order to reject available in -country 
benchmarks under Article  14(d)", the Panel "was required to address the logically prior issue of what 
constitutes a 'market' pr ice". In China's view, "[u]nder a proper interpretation of Article  14(d), an 
investigating authority may reject available in -country prices only in the 'very limited' circumstance 
in which government policies or actions effectively determine the price at w hich the good is sold 
within the country of provision, either de jure  or de facto ." 
The Appellate  Body noted the Panel's finding that "an investigating authority may reject in -country 
prices if there is evidence of price distortion, and not only if there i s evidence that a government 
'effectively determines' the price of the goods at issue." The Panel took the view that "the existence 
of price distortion may … preclude a proper comparison of the terms of the financial contribution 
with market terms. This ma y be the case when the government is the sole or predominant provider 
of a good, but it may also be the case in other circumstances that render the comparison equally 
impossible or irrelevant." Therefore, the Panel considered that "the outcome of the inqui ry necessary WT/AB/30  
 
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  to identify an appropriate benchmark, including the decision whether the circumstances in a 
particular investigation justify use of an out -of-country benchmark, will depend on the facts of each 
case." The Appellate  Body agreed with the Panel r ecalling that central to the inquiry under 
Article  14(d) in identifying an appropriate benefit benchmark is the question of whether in -country 
prices are distorted  as a result of government intervention in the market. The Appellate  Body 
considered that dif ferent types of government interventions may result in price distortion, such that 
recourse to out -of-country prices is warranted, beyond the scenario in which the government's role 
is so predominant that it effectively determines the price of the goods in  question.  
The Appellate  Body further agreed with the Panel that the existence of price distortion "may well … 
preclude a proper comparison of the terms of the financial contribution with market terms" not only 
when the government is the sole or predomina nt provider of a good, but also "in other circumstances 
that render the comparison equally impossible or irrelevant". The Appellate  Body did not exclude 
that types of government intervention that do not directly or effectively determine in -country prices 
may have similar distortive impact on those prices, such that they no longer represent a proper 
benchmark for adequate remuneration. In the Appellate  Body's view, recourse to out -of-country 
prices in such situations may be warranted, insofar as the investig ating authority has established 
the existence of price distortion resulting from government intervention. The Appellate  Body 
therefore disagreed with China that the "three circumstances that panels and the Appellate  Body 
have identified as potentially just ifying the use of out -of-country benchmarks" are limited to those 
"in which the government effectively determines the price at which the good is sold, either de jure  
or de facto ", namely where the government (i) sets prices administratively; (ii)  is the so le supplier 
of the good; and (iii) possesses and exercises market power as a provider of the good so as to cause 
the prices of private suppliers to align with a government -determined price.  
At the same time, the Appellate  Body observed that while central t o the inquiry under Article  14(d) 
is the question of whether in -country prices of private enterprises and government -related entities 
are distorted, the concept of "price distortion" is not equivalent to any impact on prices as a result 
of any government i ntervention. The Appellate  Body therefore disagreed with China's suggestion 
that the Panel's interpretative approach in the present dispute is based on the premise "that any 
government policy or action is a potential 'distortion' under Article  14(d) and th at the only fact that 
an investigating authority must establish" is that the policy or action had what the Panel called a 
"direct impact" upon in -country prices for the good in question. Instead, the determination of 
whether in -country prices are distorted  must be made on a case -by-case basis, taking into account 
the characteristics of the market being examined, and the nature, quantity, and quality of the 
information on the record. Only once the investigating authority has properly complied with its 
obliga tion to investigate whether there are in -country prices that reflect prevailing market conditions 
in the country of provision and has made a finding of price distortion may it , consistently with 
Article  14(d) , have recourse to out -of-country prices.  
The Appellate  Body therefore found that the Panel did not err in rejecting China's claim that the 
United  States acted inconsistently with Articles 1.1(b) and 14(d) of the SCM  Agreement  by rejecting 
in-country prices without having first fo und that prices for the inputs in question were effectively 
determined by the government of China.  
3.3.3.2   Whether the Panel erred in its interpretation and application of Article  14(d) of 
the SCM  Agreement  
With respect to the interpretation of Article  14(d), the  United  States argued that the Panel 
"examined the USDOC's determinations by looking only for a single kind of price analysis, 
specifically, one that would demonstrate the 'deviat[ion]' between 'in -country prices' and 'a  market -
determined price'" . The Unit ed States argued that the Panel erroneously considered that " distortion 
of internal prices, justifying resort to out -of-country benchmarks, is only evident in the difference 
between the price of the good being assessed and a market -determined price in the same country ." 
The United  States considered that in this way, the Panel misconstrued the legal standard under 
Article  14(d) as requiring a price comparison analysis or quantification of the price distortion, such 
that an explanation of why in -country price s are distorted requires, in each case, a showing of the 
extent of deviation, or the quantification of the difference, between two different price points.  
The Appellate  Body noted that the specific type of analysis that an investigating authority must 
conduct for purposes of arriving at a proper benchmark under Article  14(d), as well as the types and 
amount of evidence that would be considered sufficient in this regard, will necessarily vary depending WT/AB/30  
 
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  upon a number of factors, including the circumstances o f the case and the characteristics of the 
market. However, in all cases, the existence of price distortion resulting from government 
intervention has to be established and adequately explained by the investigating authority in its 
report. There may be diff erent ways to demonstrate that prices are actually distorted, such as a 
quantitative assessment, price comparison methodology, or a counterfactual analysis. Depending on 
the circumstances, a qualitative analysis may also appropriately establish how governm ent 
intervention actually results in price distortion, provided that it is adequately explained. The 
Appellate  Body recognized, in this regard, that governmental involvement in the market can take 
many forms, which may have distortive price effects, irresp ective of whether the government directly 
regulates prices or indirectly affects them such that they are found to be distorted as a result. For 
the Appellate  Body, evidence of direct impact of the government intervention on prices, such as 
administrative p rice-fixing or predominance of the government as a supplier in the market, may be 
probative and make the finding of price distortion very likely such that other evidence may be of 
lesser importance. While evidence of indirect impact of the government inter vention on prices may 
also be relevant in determining the existence of price distortion, establishing the nexus between 
such government intervention and price distortion may require more detailed analysis and 
explanation of how prices have been distorted a s a result of such indirect impact of the government 
intervention.  
Furthermore, the Appellate  Body pointed out that, while the investigating authority's analysis of 
whether and how price distortion resulted from government intervention will vary depending upon 
the circumstances of the case, it has to adequately take into account the arguments and evidence 
supplied by the petitioners and respondents, together with all other information in the record, so 
that its determination of how prices in the specific ma rkets at issue are actually distorted as a result 
of government intervention would be based on positive evidence. Thus, independently of the method 
chosen by the investigating authority, it has to engage with and analyse the methods, data, 
explanations, an d supporting evidence put forward by interested parties, or collected by the 
investigating authority, in order to ensure that its finding of price distortion is supported by, and not 
diminished or contradicted by evidence and explanations on record. In tur n, it is the role of panels 
to assess whether the investigating authority's explanation for its determination is reasoned and 
adequate by critically reviewing that explanation, in depth, and in light of the facts and explanations 
presented by the intereste d parties. Specifically, panels have to review whether the competent 
authority's explanation of how government intervention actually results in price distortion in the 
markets in question fully addresses the nature and complexities of the data in the recor d, and 
whether it appears adequate in light of alternative methods, data, and explanations of that data 
presented by the parties. In any event, the investigating authority must provide a reasoned and 
adequate explanation of how the government intervention actually results in distortion of in -country 
prices.  
In the first sentence of paragraph  4.155 of US – Carbon Steel (India) , the Appellate  Body had 
observed that, "[a]lthough the benchmark analysis begins with a consideration of in -country prices 
for the good in question, it would not be appropriate to rely on such prices when they are not market 
determined ." The United  States disagreed with the Panel's reading of the Appellate  Body's statement 
in the following sentence of the same paragraph, namely, that "[p]roposed in -country prices will not 
be reflective of prevailing market conditions in the country of provision when they deviate from a 
market -determined price as a result of governmental intervention in the market ." The 
Appellate  Body considered that th ese statements together form part of the Appellate  Body's 
interpretation of Article  14(d) and reflect the understanding that different methods may be chosen 
by the investigating authority in demonstrating the direct or indirect impact of government 
interve ntion on in -country prices. However, the investigating authority needs to provide a reasoned 
and adequate explanation whether prices are market -determined or how they are distorted as a 
result of government intervention. Therefore, the Appellate  Body did n ot consider that the statement 
"[p]roposed in -country prices will not be reflective of prevailing market conditions in the country of 
provision when they deviate from a market -determined price as a result of governmental 
intervention in the market" constit utes merely an example of a situation when prices might not be 
market -determined, as the United  States seems to suggest. Nor did the Appellate  Body understand 
the Panel to have read this statement as requiring the use of a single type of analysis in determ ining 
the existence of price distortion, in each case.  
The Appellate  Body noted the Panel's observation that "in view of the fact that government 
intervention may, in principle, affect supply or demand for a certain good in any market and in view 
of the fa ct that 'the possibility under Article  14(d) for investigating authorities to consider a WT/AB/30  
 
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  benchmark other than private prices in the country of provision is very limited', it is important that 
a decision to reject in -country prices as a benchmark be support ed by a reasoned and adequate 
explanation as to how government intervention distorts the price of the inputs at issue ." According 
to the Panel, "[e]vidence of widespread government intervention in the economy, without evidence 
of a direct impact on the pri ce of the good in question or an adequate explanation  of how the price 
of the good in question is distorted as a result, will not suffice to justify a determination that there 
are no 'market -determined' prices for the good in question which can be used for  purposes of 
determining the adequacy of remuneration for government -provided goods ." By requiring in the 
alternative either "evidence of a direct impact on the price of the good in question" or "an adequate 
explanation of how the price of the good in ques tion is distorted as a result", the Panel's statement 
was in line with the Appellate  Body's conclusion that while there may be different ways to 
demonstrate the existence of price distortion, the investigating authority must choose a method 
capable of esta blishing how in -country prices are actually distorted as a result of government 
intervention. The Appellate  Body nevertheless highlighted that investigating authorities should 
provide a reasoned and adequate explanation of the basis for their price distort ion findings in each 
case, independently of whether their finding is based on evidence of direct or indirect impact of the 
government intervention on in -country prices.  
The Appellate  Body further agreed with the Panel's conclusion that "[a]n investigating authority must 
explain how government intervention in the market results  in in-country prices for the inputs at 
issue deviating from a market -determined price", insofar as it clarifies that the investigating 
authority has to make a finding of price distort ion resulting for government intervention. The Panel's 
reasoning was consonant with the Appellate  Body's  interpretation that the existence of price 
distortion by reason of government intervention can be established by recourse to different methods 
in diffe rent cases, as long as  investigating authorities have undertaken the necessary analysis in 
order to establish in its report that price distortion actually results from government intervention in 
the market. The Panel's statement referring to "direct impact " as well as other forms of more indirect 
impact on prices – provided that the investigating authority explains how the prices of the goods in 
question are distorted as a result – acknowledged that various forms of government intervention 
could lead to pri ce distortion, while recognizing that, in each case, an explanation would be required 
whether and how the government intervention has actually resulted in price distortion, before a 
finding that certain in -country prices cannot be relied upon is reached.  The Appellate  Body concluded 
that the Panel did not require one single type of quantitative or price comparison analysis in all 
cases.  
The Appellate  Body therefore found  that the Panel did not err in rejecting China's claim that the 
United  States acted inco nsistently with Articles 1.1(b) and 14(d) of the SCM  Agreement  by rejecting 
in-country prices without having first found that prices for the inputs in question were effectively 
determined by the government of China.  
With respect to the Panel's application  of Article  14(d), the United  States contended that the Panel 
"fixated on a particular kind of price analysis and excluded from its consideration the explanation 
and evidence the USDOC provided demonstrating how prices in the relevant sectors are not marke t 
determined", and " [h]aving already adopted the incorrect approach for its analysis  … further erred 
in characterizing the USDOC's explanation as unresponsive to the question of whether prices were 
or were not market determined" . Specifically, in the United  States' view, the Panel failed to recognize 
that examining prices is not the only way to demonstrate price distortion, that the emphasis on 
market -determined prices highlights that an examination of "prevailing market conditions" assume 
the existenc e of a "functioning market", and that, absent such a market, an internal price cannot 
serve as a benchmark for measuring the adequacy of remuneration. Furthermore, the United  States 
argued that the Panel made a number of erroneous observations in examining  whether the USDOC 
considered in -country and government -related prices, analysed specific input markets on a stand -
alone  basis, and conducted a diligent investigation and solicited relevant facts.  
The Appellate  Body noted that, as was evident from the Pan el's description of the USDOC's analysis, 
the USDOC assessed a number of factors relating to the Government of China's ( GOC) intervention 
with state-invested  enterprises ( SIE) in China, and in China's steel sector generally. From this 
analysis the USDOC in ferred that "the prices in the domestic market of steel inputs produced by 
China's SIEs cannot be considered to be 'market -determined' for purposes of a benchmark analysis ." 
In turn, the question before the Panel was whether the USDOC had provided, in its written 
determinations, a reasoned and adequate explanation of how the evidence on the record actually 
established the existence of price distortion in the markets of the inputs at issue as a result of WT/AB/30  
 
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  government intervention and how this explanation suppo rted its decision to have recourse to 
out-of-country prices. The Panel emphasized the importance of ensuring "that a decision to reject 
in-country prices as a benchmark be supported by a reasoned and adequate explanation as to how 
government intervention d istorts the price of the inputs at issue", as opposed to merely relying on 
"[e]vidence of widespread government intervention in the economy". The Appellate  Body thus 
understood the Panel's preoccupation to have been with the requirement to establish how th e 
existence of price distortion actually resulted from the government interventions in the market. To 
this end, the Panel reviewed the USDOC's determinations and referred to various statements made 
in the Benchmark Memorandum and the United  States' submiss ions.  
In the Appellate  Body's view, the Panel rejected as insufficient and problematic the 
USDOC's  determination that prices in the entire steel and solar grade polysilicon sectors in China 
cannot be used as benefit benchmarks in the absence of a specific  and focused assessment of how 
government intervention had resulted in price distortion in the four input markets at issue. Critical 
for the Panel's conclusion was the United  States' position that "the USDOC was 'not required to 
analy se specific prices  for the relevant inputs to determine that SIE and private prices in China's 
steel and polysilicon sectors are not market -determined'." The Panel also emphasized that "the 
information collected and summarized in the Benchmark Memorandum focuses on government 
intervention  in the Chinese economy as a whole and the steel sector generally, rather than on the 
specific input markets  at issue." This understanding was in line with the Panel's conclusion that 
"[t]he USDOC did not even attempt to provide a reasoned and a dequate explanation for its 
determinations that in-country prices for steel rounds and billets (OCTG), stainless steel coil 
(Pressure Pipe), hot -rolled steel (Line Pipe), and polysilicon (Solar Panels) were distorted  as a result 
of pervasive government int ervention in the Chinese domestic markets for these inputs, and 
therefore were not market -determined."  
According to the Appellate  Body, the USDOC considered that its rationale of "pervasive government 
intervention" in China's  economy in general and its st eel industry as a whole equally applied to the 
specific input markets at issue because the steel sector "necessarily includes all types of steel 
inputs", without further analysis or explanation of how various forms of government intervention 
actually resul ted in distortion of the prices of the specific input markets under investigation. Beyond 
its reference to the fact that "the records in these three cases demonstrate the existence of export 
restraints for these three products during the relevant periods o f investigation", the USDOC did not 
engage in any specific assessment of the four input markets in question. Thus, from its conclusions 
that the decision -making process of SIEs in China in general and in the steel sector as a whole was 
distorted by governm ent intervention, the USDOC appeared to have drawn a general inference that 
prices in the specific markets at issue were equally distorted.  
Furthermore, the Panel rejected the notion that "a presumption that government intervention in the 
market necessaril y results in price distortions  for the goods in question [would] suffice to support 
the conclusion that in -country prices for the input at issue may be rejected as a benchmark ." The 
Panel then concluded that "[t]he record of the four Section  129 proceeding s at issue and the 
arguments of the United  States clearly show that the USDOC did not find it necessary to demonstrate 
how the actions of the GOC influenced the in -country price of the inputs at issue." The Appellate  Body 
thus understood the Panel to have been concerned with the focus of the USDOC's analysis in the 
Benchmark Memorandum on the pervasiveness of government involvement in China's SIEs' 
decision -making in general and in the steel sector as a whole, rather than on how specifically this 
involvemen t influenced pricing decisions regarding the inputs at issue, and resulted in price distortion 
with respect to the determinations at hand. Absent from this analysis was a sufficient assessment 
of how the various forms of government interventions, taken ind ividually or together, impacted upon 
the prices in China's steel market, and specifically the input markets at issue, and how they actually 
resulted in the distortion of all the SIE and private prices  of those inputs in those markets, as opposed 
to more ge nerally distorting the market .  
The Appellate  Body therefore disagreed with the proposition that the Panel was "fixated on a 
particular kind of price analysis and excluded from its consideration the explanation and evidence 
the USDOC provided demonstrating  how prices in the relevant sectors are not market determined", 
and " erred in characterizing the USDOC's explanation as unresponsive to the question of whether 
prices were or were not market determined" . Instead, the Appellate  Body understood the Panel to 
have found that the USDOC did not sufficiently analyse or explain how the widespread government 
interventions described in the Benchmark Memorandum actually resulted in the distortion of 
in-country prices in the specific input markets and regarding the spe cific products subject to each of WT/AB/30  
 
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  the challenged USDOC determinations at issue. Thus, the Panel understood the USDOC's analysis 
as one of widespread government intervention and "market distortion" more generally, and not of 
"price distortion" in the input markets at issue resulting specifically from those government 
interventions.  
The Appellate  Body observed that the Panel's analysis of whether the USDOC disregarded evidence 
regarding prices for the inputs at issue supported its conclusion that "the USDOC failed to explain 
how government intervention in the market resulted in domestic prices for the inputs at issue 
deviating from a market -determined price." In this regard, the United  States argued that the "Panel 
concluded, without justification, that the U SDOC automatically rejected government prices", 
whereas "[t]he USDOC provided an extensive explanation as to why it rejected 'government -related' 
prices" and "did not reject these prices because of their source, but rather because of their nature ." 
The Appellate  Body recalled that, in line with the applicable standard of review, whereas the 
investigating authority has discretion in choosing the method for establishing price distortion, it also 
needs to analyse alternative methods, arguments, and ev idence presented by the parties, in order 
to assess whether its approach properly determines the existence of price distortion resulting directly 
or indirectly from government intervention. Ultimately, the investigating authority's conclusion has 
to be suf ficiently reasoned and adequately explained, also in light of these alternative arguments, 
explanations and evidence. In turn, "an explanation is not reasoned, or is not adequate, if some 
alternative explanation  of the facts is plausible, and if the compet ent authorities' explanation does 
not seem adequate in the light of that alternative explanation." Thus, for the Appellate  Body, the 
Panel's task in the present case was to review whether, in light of the evidence and arguments 
submitted by the parties, an d the rationale underlying plausible alternative explanations, the 
approach ultimately adopted by the USDOC in its determinations, and the conclusions drawn from 
the evidence it relied upon, remain adequate and sufficiently substantiated also in light of t hose 
alternative explanations.  
With respect to the Panel's finding that "the Mysteel Report was largely ignored by the investigating 
authority", the United  States submits that "[t]he Mysteel prices are precisely the subject of the 
USDOC's analysis in the benchmark memoranda – that is, they are among the Chinese prices the 
USDOC described as being distorted by the numerous government interventions identified on the 
record." The Appellate  Body recalled that the USDOC's rationale in the Benchmark Memorandum 
was focused on establishing price distortion based on pervasiveness of government intervention in 
China's steel sector, rather than on the exercise of market power by the GOC and therefore on the 
question of whether the government could effectively determin e prices in the input markets in 
question. The Appellate  Body disagreed with the United  States, to the extent it suggested that the 
Panel "ignored the central question of market -determined pricing". Instead, the Appellate  Body 
understood the Panel to have found that the USDOC's rejection of in -country prices (including 
Mysteel prices) was based on, and merely consequential to, its findings of pervasive government 
intervention and market distortion in the steel sector generally, which did not provide a reaso ned 
and adequate explanation of how the widespread government intervention and "market distortion" 
led to "price distortion" in the specific input markets at issue.  
The Appellate  Body further noted that the USDOC did not question the plausibility of 
Professor Ordover's analytical framework of price alignment set out in a document concerning price 
information for the inputs at issue submitted by the GOC to the USDOC in  a number of Section  129 
proceedings at issue , but that it had rejected its relevance main ly because it had adopted a different 
approach in these compliance proceedings. The USDOC observed in particular that "the GOC's 
intervention in the steel sector as a whole in the Benchmark Memorandum establishes that the 
market signals – throughout the se ctor as a whole – are distorted by the effects of longstanding and 
continued pervasive government intervention", and that "[i]n these circumstances, the presence or 
absence of Professor Ordover's antitrust -based 'indicia' are not particularly telling indic ia of market 
distortion". The USDOC also noted that Professor Ordover's approach was not "the only framework 
under which to determine whether the government can affect the market". The Appellate  Body 
observed, however, that the fact that the alternative fr amework was not the only one does not 
respond to the question whether, in light of that alternative framework and price data, the framework 
adopted by the USDOC in these Section  129 proceedings and its conclusions still hold. Rather, the 
Appellate  Body agr eed with the Panel that "when information which appears on its face relevant to 
that analysis under Article  14(d) is before the investigating authority, it must consider this 
information and, if it concludes it is not probative or relevant to its analysis,  explain that conclusion."  WT/AB/30  
 
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  In this regard, the Appellate  Body took note of China's argument that pricing data in the Mysteel 
Report reflected the proposition that market factors – as opposed to government intervention – were 
responsible for the fluctuatio ns of Chinese steel prices. Furthermore, the Ordover Report highlighted 
that "the Chinese steel industry as a whole is 'highly fragmented', as are the specific steel markets 
at issue in the relevant investigations", "which makes the domestic market highly competitive and 
difficult to control" . The same report also documented some of the major instances in which "private 
investment in the Chinese steel industry grew rapidly during the periods of investigation", in the 
form of "private investment in major cap acity expansions as well as private investments in existing 
Chinese steel enterprises". Therefore, even though the USDOC's analysis was not based primarily 
on the SIEs' market share in China's steel market or on a price alignment rationale, it appears that  
the alternative explanations and pricing data on record may have nevertheless been relevant for 
examining whether price distortion actually existed in the input markets at issue. Yet, the USDOC 
determinations did not explain why, in light of the price dat a and alternative explanations, the 
conclusion it had reached for the entire steel sector necessarily applies to all specific inputs.  
The Appellate  Body was therefore of the view that the Panel's analysis did not reflect an insistence 
that a particular me thod of analysis of prices is the only way to establish price distortion, or that, as 
the United  States puts it, the Panel "overlooked the context within which the USDOC addressed the 
Mysteel evidence". Indeed, the Panel recognized that "the SCM  Agreement does not prescribe a 
specific mode of analysis for the determination of an appropriate benchmark for purposes of 
determining whether goods are provided for less than adequate remuneration within the meaning 
of Article  14(d)." At the same time, the Panel co nsidered the price data on record to have been 
relevant to the question whether the existence of price distortion had been adequately established 
and explained under the USDOC's own approach. As the Panel observed, however, "[n]either the 
Benchmark Memoran dum nor the Supporting Benchmark Memorandum to that memorandum, nor 
the Final Benchmark Determination in the Pressure Pipe, Line Pipe, OCTG, Wire Strand, and Solar 
Panels [,] refer[s] to the prices for the inputs at issue set out in the Mysteel Report."  
The United  States also took issue with the Panel's observation that "the USDOC did not consider that 
it was necessary to proceed with a detailed analysis of the specific markets for the inputs at issue ." 
The Appellate  Body recalled its finding that, in its a nalysis in the Benchmark Memorandum, the 
USDOC did not engage in a specific assessment of the four input markets in question, and drew an 
overall inference that prices in all specific input markets are distorted from its conclusions that the 
decision -makin g process of SIEs in China in general and in the steel sector as a whole was distorted 
by government intervention. However, the Mysteel prices placed by the GOC on the record were 
specific to the three steel inputs at issue and, in China's view, "[t]here w as no evidence on the record 
that any plans or policies adopted by the GOC directed either privately -owned or government -related 
suppliers to sell these inputs to particular entities or at a particular price." Thus, the Appellate  Body 
considered that, as o bserved by the Panel, it would have been relevant for the USDOC to take into 
account this data in its analysis and examine the extent to which it affected its conclusions that price 
distortion existed in China's steel sector, and in particular in the three  specific input markets.  
The United  States also pointed to the USDOC's conclusion that, "[a]lthough the Department 
requested information from the GOC to ascertain the structure of the hot -rolled steel, steel rounds, 
and stainless steel coils markets, incl uding the identities and state ownership levels of the producers 
operating therein, the GOC's response was incomplete and therefore unreliable for purposes of such 
an analysis." The USDOC thus found that "information necessary to an input -specific market a nalysis 
is not available on the record [and] in addition to, and in the alternative to, [its] determination about 
the Chinese steel sector as a whole", the USDOC also relied upon "the facts otherwise available … 
with regard to the particular steel inputs a t issue". The Appellate  Body recalled that, "[t]o the extent 
possible, an investigating authority using the 'facts available' in a countervailing duty investigation 
must take into account all the substantiated facts provided by an interested party, even if  those 
facts may not constitute the complete information requested of that party." In relying upon facts 
available, however, the USDOC did not consider the Mysteel prices for the three specific inputs 
provided by China. The Appellate  Body therefore did not  consider that the fact that China's responses 
to the USDOC's request for information were incomplete could justify the absence of an assessment 
of the price data that was submitted and thus available on record. Therefore, although the USDOC 
had discretion  to choose its approach in establishing whether in -country prices were distorted, it 
would have been necessary to explain in its determinations why the approach it had adopted and 
the conclusions it had reached were still valid, in light of the Mysteel pri cing data and the alternative 
narrative of the Ordover Report.  WT/AB/30  
 
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  Additionally, with respect to in -country private prices, the United  States contended that "after 
considering import pricing data that China submitted on the record of the original investigatio ns, the 
USDOC concluded that it could not be used", and that the USDOC actually used Chinese prices where 
appropriate, such as in the Pressure Pipe investigation. As the Appellate  Body saw it, the use or 
rejection by the USDOC of certain import pricing dat a provided by China in the original proceedings 
did not obviate the need for the USDOC to examine the evidence and explanations on the record of 
the Section  129 proceedings at issue. The United  States' arguments therefore were not pertinent to 
the Panel's conclusion that the USDOC failed to adequately explain its rejection of in -country prices 
on the record of the Pressure Pipe, Line Pipe, and OCTG investigations in the course of the 
Section  129 proceedings.  
The United  States further challenged the basis fo r the Panel's finding that nothing on the record 
suggested that the USDOC considered the possibility that "price information which does not 
distinguish between SIE suppliers and private suppliers may nonetheless be relevant to an analysis 
of the adequate r emuneration for the inputs at issue ." The Appellate  Body observed that, in the 
Section  on "Evaluation of Additional Issues" in the Final Benchmark Determination, the USDOC noted 
the possibility of alignment of private and SIE prices, but found that "it is neither necessary nor 
feasible to conduct such a price analysis in these Section  129 proceedings ." The Appellate  Body 
stated that, while the USDOC may not have rejected these data because of their source, it 
nevertheless rejected them because at the point of addressing the question of whether a price 
alignment analysis would be possible, the USDOC had already reached its conclusion that 
longstanding and continued pervasive government intervention distorted market signals throughout 
the steel sector, such th at there were no potential benchmarks from the domestic industry that could 
be considered "market -based" for any of the inputs at issue. This latter conclusion was reached 
separately from, and before addressing the Mysteel prices in the USDOC's additional discussion of 
whether an analysis price alignment is possible. However, the Appellate  Body recalled that the 
USDOC's prior conclusion as to the existence of price distortion in the entire steel sector based on 
pervasive government intervention in the Bench mark Memorandum could not in itself constitute a 
sufficient basis for rejecting the relevance of the Mysteel data.  
In addition, the USDOC considered that "neither the available record evidence", "nor the evidence 
on prices likely to be available … is likel y to provide additional probative insight on the question of 
whether private suppliers have aligned their prices with the prices charged by predominant 
government input providers" . It was in this context that the USDOC referred to the price evidence 
before  it and indicated that it was only limited, in particular because most data, including the Mysteel 
prices, did not distinguish between SIEs and private suppliers. The USDOC thus considered that it 
would not be possible to conduct an analysis of whether pri vate prices aligned with SIE prices in the 
absence of sufficient data distinguishing between these two sets of prices. The Appellate  Body noted 
that, although the rationale of the Ordover Report and the associated Mysteel price data were 
different from the  approach adopted by the USDOC in the Benefit Memorandum, these indicia related 
to the steel sector and the relevant input markets. As such, they constituted pertinent information 
which could potentially call into question the USDOC's finding that all in -country prices, including 
private prices of the inputs at issue, were distorted. Therefore, the Appellate  Body saw no reason to 
disagree with the Panel that "[g]iven that 'proper benchmark prices may be drawn from a variety of 
potential sources, including p rivate or government -related entities', price information which does 
not distinguish between SIE suppliers and private suppliers may nonetheless be relevant to an 
analysis of the adequate remuneration for the inputs at issue ." 
The Appellate  Body considered  that, in addressing the question of whether it would be possible to 
analyse price alignment, the USDOC dismissed, in the Final Benchmark Determination, the price 
data on record largely on the basis of its prior conclusion in the Benchmark Memorandum that all 
in-country steel prices in China were distorted by government intervention. Even though the USDOC 
might not have "exclude[d] government -related prices automatically" or because of their source, it 
did not engage in an analysis of whether this pricing d ata was distorted, or consider whether the 
data and supporting explanations could have affected its conclusions in the Benchmark Memorandum 
that both government -related and private prices in China's steel sector are distorted, as they applied 
to the specific inputs at issue. In this regard, as the Panel observed, the United  States "dismisse[d] 
the 'heavy emphasis' placed by China on the Mysteel Report by stating that these 'data ultimately 
say nothing about whether those prices also reflect the effects of sustained state intervention in the 
sector'." For the Appellate  Body, it appeared that the Panel considered that the USDOC insufficiently 
explained "w hy, in its view, the price data on the record did not relate to prevailing market conditions 
in the country of provision in the sense of Article  14(d)", and rejected the relevance of this WT/AB/30  
 
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  information mainly because the rationale underlying the Ordover Repo rt and Mysteel pricing data 
were different from the rationale that the USDOC had adopted in the determinations at issue. Thus, 
for the Panel, the USDOC did not sufficiently engage with record pricing data and alternative 
explanations before reaching the co nclusion that no in -country prices can be relied upon as benefit 
benchmarks and that, therefore, the USDOC would continue using the alternative benchmarks from 
the original investigations.  
Finally, the United  States claimed that the Panel's finding of inco nsistency with regard to the Solar 
Panels investigation is incoherent and unsupported by any rationale. The United  States took issue 
with the Panel's conclusion that "there was no relevant information on arm's -length in -country prices 
of polysilicon in Chi na before the USDOC on the basis of which it could have considered a proper 
benchmark for purposes of determining whether goods are provided for less than adequate 
remuneration within the meaning of Article  14(d)." The Panel therefore found that "China has  not 
demonstrated that the USDOC acted inconsistently with Articles  1.1(b) and 14(d) of the 
SCM Agreement for failing to consider in -country prices that were available on the record in this 
Section  129 proceeding." In its overall conclusion under Articles  1.1(b) and 14(d), however, the 
Panel found that "the USDOC failed to explain, in the OCTG, Solar Panels, Pressure Pipe, and Line 
Pipe Section  129 proceedings, how government intervention in the market resulted  in domestic 
prices for the inputs at issue dev iating from a market -determined price." In the Appellate  Body's 
view, the Panel's finding that there was no relevant price information on the record of the Solar 
Panels investigation did not undermine the Panel's earlier conclusions that the USDOC did not 
provide "a reasoned and adequate explanation for its determinations that in -country prices 
for … polysilicon (Solar Panels) were distorted as a result of pervasive government intervention in 
the Chinese domestic markets for these inputs", and that it "outl ined governmental involvement in 
the relevant markets and, on that basis alone, determined that it could not use in -country prices of 
the relevant inputs to assess the adequacy of remuneration". Specifically, for the Appellate  Body, 
even though there was n o price evidence in the record of the Solar Panels investigation that should 
have been taken into account by the USDOC, the Panel found that, in its earlier analysis, the USDOC 
failed to explain how government intervention in the market resulted in price d istortion also with 
respect to this investigation.  
The Appellate  Body therefore found  that the United  States has not established that the Panel erred 
in its interpretation and application of Article  14(d) of the SCM  Agreement in finding that the USDOC 
failed to explain, in the OCTG, Solar Panels, Pressure Pipe, and Line Pipe Section  129 proceedings, 
how government intervention in the market resulted  in domestic prices for the inputs at issue 
deviating from a market -determined price. In addition, Appellate  Body found  that the United  States 
has not established that the Panel erred in its in finding that , in the Section  129 proceedings on 
Pressure Pipe, Line Pipe, and OCTG, the USDOC failed to consider price data on the record.  
3.3.4   Specificity – Article  2.1(c) of t he SCM  Agreement   
Based on its reading of Article  2.1(c) of the SCM  Agreement, and its review of the USDOC's reasoning 
and analysis, the Panel found that the United  States did not comply with the requirement in 
Article  2.1(c) to "take account of the length  of time during which the subsidy programme has been 
in operation" because it failed to adequately explain its conclusions regarding the existence of the 
relevant subsidy programme. The Panel determined, on this basis, that the United  States had acted 
inconsistently with Article  2.1(c) in 11 of the Section  129 proceedings at issue.  
On appeal, the United  States argued that neither the panel nor the Appellate  Body made findings of 
inconsistency regarding the "existence of a subsidy programme" when presented with that issue in 
this dispute, and claimed that this was therefore not an appropriate basis upon which to assess the 
consistency of the measures with Article  2.1(c), third sentence. The United  States further argued 
that the compliance Panel improperly in terpreted Article  2.1(c) to require the USDOC to identify a 
"systematic subsidy programme" consisting "entirely of acts of subsidization", and that the Panel's 
erroneous reading of Article  2.1(c) led the Panel to disregard reasoning and analysis provided b y the 
USDOC that was "directly responsive" to the compliance Panel's concerns regarding the existence of 
the relevant "subsidy programmes".  
Based on its analysis, the Appellate  Body disagreed with the United  States that the Panel was 
required to limit its  review to the USDOC's examination of the "duration" of the relevant subsidy 
programmes, without considering whether the USDOC had properly identified those programmes in 
the context of the relevant Section  129 proceedings. The Appellate  Body reasoned in t his regard WT/AB/30  
 
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  that the requirement to establish the existence of a subsidy programme is part and parcel of the 
obligation, arising under the third sentence of Article  2.1(c), to take into account the time during 
which the subsidy programme has been in operati on. The Appellate  Body added that the issue of 
whether the USDOC had properly identified the relevant subsidy programmes was left unresolved in 
the original proceedings, and it saw no reason why China would have been precluded from 
reasserting a claim in t his regard in these compliance proceedings, as a basis for its contention that 
the United  States was in breach of its obligations under Article  2.1(c).  
With respect to the Panel's interpretation and application of Article  2.1(c), the Appellate  Body agreed 
with the Panel that, while "evidence of 'a systematic series of actions' may be particularly relevant 
in the context of an unwritten programme, the mere fact that financial contributions have been 
provided to certain enterprises is not sufficient to demons trate that such financial contributions have 
been granted pursuant to a plan or scheme for purposes of Article  2.1(c)." The Appellate  Body also 
found that the Panel's subsequent review of the USDOC's analysis properly focused on "whether the 
information re lied upon by the USDOC supports its finding of a systematic series of actions 
evidencing the existence of a plan or scheme pursuant to which subsidies have been provided". The 
Appellate  Body added that, in its reasoning, the Panel rightly contrasted the US DOC's failure to 
explain "systematic activity … regarding the existence of an unwritten subsidy programme" with 
information before the USDOC merely indicating "repeated transactions". On this basis, the 
Appellate  Body disagreed with the United  States insof ar as it had argued that the Panel erred in its 
articulation of the standard to be applied under Article  2.1(c). The Appellate  Body also disagreed 
with the United  States to the extent it had claimed that the Panel's finding under Article  2.1(c) was 
based o n an isolated reading of the USDOC's specificity analysis. Instead, the Appellate  Body 
understood the Panel's concern to have been that the USDOC's reasoning and references to "subsidy 
programmes" were generic in nature and did not sufficiently discuss the  steel sector or the provision 
of inputs in the context of the specific determinations at issue. For these reasons, the Appellate  Body 
upheld the Panel's finding that the United  States acted inconsistently with Article  2.1(c) of the 
SCM Agreement in 11 of the Section  129 proceedings at issue in this dispute.  
3.3.5   Separate opinion of one Division member  
3.3.5.1   Public bodies – Article  1.1(a)(1) of the SCM  Agreement  
In a separate opinion, one member of the Appellate  Body Division concurred with the majority in: 
(i) rejecting China's interpretation of the term "public body" under Article  1.1.(a)(1) of the 
SCM Agreement; (ii) upholding the Panel's conclusion that China failed to demonstrate that the 
USDOC's public body dete rminations in the relevant Section  129 proceedings are inconsistent with 
Article  1.1(a)(1); and (iii)  leaving intact the Panel's conclusion that China has not demonstrated that 
the Public Bodies Memorandum is inconsistent "as such" with Article  1.1(a)(1). However, he 
disagreed with the majority's view that a clarification of the criteria for determining when an entity 
is a public body was not necessary.  
The Division member considered that the continuing lack of clarity as to what is a "public body" 
represen ts an instance of undue emphasis on "precedent". He expressed the view that the original 
mistake was in US – Anti‑Dumping and Countervailing Duties (China) , to define the term "public 
body" as an entity that "possesses, exercises or is vested with governmental authority". He 
considered that this is one way to identify a public body, but it is not the only way to give meaning 
to the concept in specific circum stances. In his view, in subsequent appeals the Appellate  Body 
treated the phrase "possesses, exercises or is vested with governmental authority" as a necessary 
element for determining whether an entity is a public body – while adding criteria that seemed to 
undermine the role of that element. In his opinion, that has sown confusion. Noting also that the 
United  States had expressly asked the Division to clarify the meaning of the term "public body", the 
Division member considered that a clarification of the  criteria for determining whether an entity is a 
public body was therefore both necessary and warranted.  
In this regard, he observed that the text of Article  1.1(a)(1) does not elaborate on the meaning of 
the term "public  body" and does not call for a sing le abstract definition or basic criterion for the term 
"public body". Instead, Article  1.1(a)(1) calls for an examination of whether a transfer of financial 
value is "by a … public body" and can therefore be attributed to a government. In his view, that 
examination involves an assessment of the relationship between the relevant entity and the 
government. When that relationship is sufficiently close, the entity in question may be found to be 
a public body and all of its conduct may be attributed to the relev ant Member for purposes of WT/AB/30  
 
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  Article  1.1(a)(1). If a government has the ability to control the entity in question and/or its conduct, 
then the entity could be found to be a public body within the meaning of Article  1.1(a)(1). The 
Division member added that h e did not consider that the Appellate  Body should elaborate on the 
meaning of the term "public body" in greater detail. Rather, it should leave space for domestic 
authorities to apply the criteria described above, provided their decisions meet the requirem ents of 
objectivity, reasoned and adequate explanation, and sufficient evidence.  
While supporting the majority's rejection of China's appeal of the Panel's conclusion that the USDOC's 
public body determinations in the relevant Section  129 proceedings were not inconsistent with 
Article  1.1(a)(1) of the SCM  Agreement, he expressed disagreement with the majority's criteria for 
determining whether an entity is a public body and offered a summary of criteria that may be 
relevant in determining whether an entity is a public body. In his view, whether an entity is a public 
body must be determined on a case -by-case basis with due regard being had for the characteristics 
of the relevant entity, its relationship with the government, and the legal and economic environm ent 
prevailing in the country in which the entity operates. Just as no two governments are exactly alike, 
the precise contours and characteristics of a public body are bound to differ from entity to entity, 
State to State, and case to case. An entity may b e found to be a public body when the government 
has the ability to control that entity and/or its conduct to convey financial value. Thus, concluded 
the Division member, there is no requirement for an investigating authority to determine in each 
case wheth er the investigated entity possesses, exercises , or is vested with governmental authority.  
3.3.5.2   Benefit – Articles 1.1(b) and 14(d) of the SCM  Agreement  
One member of the Appellate  Body Division disagreed with the majority's decision to uphold the 
Panel's findi ng. He noted that the Panel rejected the USDOC's benchmark analysis in each of the 
four underlying Section  129 proceedings in a single paragraph of the Panel  Report , saying that "the 
USDOC did not find it necessary  to demonstrate how the actions of the GOC  influenced the in -country 
price of the inputs at issue"; that "[t]he USDOC did not even attempt  to provide a reasoned and 
adequate explanation for its determinations that in -country prices … were distorted as a result of 
pervasive government intervention" ; and that "the USDOC outlined governmental involvement in 
the relevant markets and, on that basis alone , determined that it could not use in -country prices of 
the relevant inputs to assess the adequacy of remuneration." The Division member added that, 
although the majority said it accepted that different methods – including a qualitative analysis  – may 
serve as a basis for a domestic authority to explain how government intervention results in distortion 
of in-country prices, it in fact it rejected the USDO C's extensive qualitative analysis and wrote an 
opinion that could only be read as requiring a quantitative analysis in all cases involving resort to 
out-of-country prices.  
The Division member then proceeded to detail what the USDOC did, which the Panel di smissed in 
three sentences and without any objection from the majority. He noted, for example, that in its 
Benchmark Memorandum, the USDOC examined: (i) the involvement of the GOC in the functioning 
of China's SIEs; (ii) detailed industrial plans directing  ministries to reduce the number of firms and 
to increase the scale of production; (iii) government control exerted over appointments to the board 
of directors and corporate positions; (iv) evidence regarding controlled mergers and acquisitions; 
and (v) ba nkruptcy prevention and other indicia of government intervention with the functioning of 
the market. In assessing the functioning of SIEs in the steel sector in particular, the USDOC pointed 
to the sector's place as a "pillar" industry in which the state r etains "somewhat strong influence"; 
evidence of increasing excess capacity; export restraints; "five -year plans" detailing favoured and 
unfavoured production scales, investments, technologies, products, and production locations; strict 
control over investm ents; control over SIEs' appointment processes; hindered bankruptcy of large 
SIEs; and preferential access to capital, land, and energy. With respect to the prices of private steel 
producers in China, the USDOC examined several factors, including the SIEs'  significant market 
share, the presence of many SIE steel producers shielded from competitive market forces, export 
restraints on steel input products, restrictions on foreign investment, and other factors. In addition, 
in the Supporting Benchmark Memorand um, the USDOC referred to the inadequacy of questionnaire 
responses leading to an absence of representative price data, and a need to rely, in part, on facts 
available with respect to the input -specific market analysis of the three steel inputs. In the Fin al 
Benchmark Determination, the USDOC additionally explained why it could not carry out a price 
alignment analysis to further support its explanation that private steel input prices in the underlying 
proceedings were distorted. Finally, with respect to the  Solar Panels investigation and in light of the 
GOC's failure to respond to the USDOC's request for information, the USDOC relied entirely on facts 
available. The Division member further noted that the Benchmark Memorandum and Supporting WT/AB/30  
 
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  Benchmark Memorand um, together with the underlying evidence in support of the USDOC's 
conclusions, ran to hundreds of pages. Yet, the Panel discarded the USDOC's reasoning and 
supporting evidence in a single paragraph, characterizing the USDOC's determinations as "not even 
[an] attempt" to provide an explanation as to why in -country steel prices are not market -determined.  
The Division member added that, in finding that the USDOC "failed to explain how government 
intervention in the market resulted in domestic prices for the  inputs at issue deviating from a 
market -determined price" without any assessment of the USDOC's arguments and evidence, the 
Panel in effect faulted the USDOC for not having further analysed in -country prices, even where it 
had already found those prices t o have been distorted. Why that should have been required in this 
case is not clear. Yet, provided that the investigating authority had sufficiently explained why it 
considers the respective government interventions to have distorted domestic prices, the D ivision 
member did not see why the USDOC should have been required to rely on or further analyse such 
in-country prices in the context of a benchmarking analysis by, for example, comparing in -country 
prices with a hypothetical market -determined benchmark a nd finding the existence of a deviation. 
He noted that such prices may reflect the very same government interventions that gave rise to the 
subsidy the USDOC sought to countervail.  
The Division member proceeded to set out, in some detail, his disagreement  with the Panel and the 
majority of the Appellate  Body. In particular, he considered that only a meaningful examination by 
the Panel of the USDOC's analysis, reasoning, and underlying evidence could allow the Panel to 
reach a conclusion as to whether the U SDOC provided a sufficient explanation for its decision to 
have recourse to out -of-country prices. Yet the Panel did not carry out any such review. The Division 
member added that the Appellate  Body majority faulted the USDOC for an alleged failure to provi de 
"a sufficient assessment of how the various forms of government interventions, taken individually 
or together, impacted upon the prices in China's steel market, and specifically the input markets at 
issue, and how they actually resulted in the distortio n of all the SIE and private prices  of those inputs 
in those markets, as opposed to more generally distorting the market ". He queried how the majority 
could reach this conclusion, considering that the Panel did not engage in any such assessment and 
failed to provide a substantive analysis of the USDOC's reasoning and underlying evidence. Rather 
than reviewing the Panel's find ings to determine whether the Panel had erred in its interpretation 
and application of Article  14(d), it seemed to him that the majority had engaged in its own review 
of the USDOC's determinations and, based on that review, upheld the Panel's findings that  were 
based on the wrong legal standard, and reflected virtually no engagement with the USDOC's 
determinations. In this way, the majority appeared to have assumed the role of a panel in drawing 
conclusions from its own analysis of the record evidence, rath er than through an analysis of 
reasoning provided by the Panel. In his view, the majority thus appeared to have exceeded the 
Appellate  Body's mandate to review " issues of law covered in the panel report and legal 
interpretations developed by the panel".   
Moreover, the Division member noted that the Panel recognized that "an investigating authority may 
carry out … a market analysis at different levels of detail with respect to the products in question, 
depending on the circumstances of the case." Having said  that, however, the Panel did not appear 
to have taken into account the USDOC's qualitative analysis, which led it to conclude that: (i) prices 
in the entire steel sector could not be considered market -determined and similar rationale applied 
to the market s of the specific steel inputs at issue; (ii) information needed to conduct an input -
specific market analysis was not provided by China in response to the USDOC's questionnaires and, 
thus, was not on the record; and (iii) the USDOC had data from the record  of the original 
investigations relating to the considerable market shares of SIEs in the three input markets at issue. 
This conclusion was based "on the totality of circumstances in the Chinese steel sector including, 
inter alia, the GOC's other policy in terventions in the sector ( e.g. industrial policies affecting both 
the suppliers and purchasers of the steel inputs, forced mergers and acquisitions, subsidies, 
investment restrictions, and export restrictions), all of which serve to distort firm -level dec isions 
thereby preventing the existence of the market conditions which are necessary for a proper 
benchmark under Article  14(d) of the SCM  Agreement" . In addition, the USDOC reviewed the 
available evidence on the record, including price evidence presented by the GOC, but concluded that 
"this evidence does not demonstrate that prices in the steel input markets in question in China are 
appropriate for use as benchmarks to determine the adequacy of remuneration in the relevant 
investigations."  
In addition, th e Division member noted that the Panel reached its conclusion that "the USDOC failed 
to explain how government intervention in the market resulted in domestic prices for the inputs at WT/AB/30  
 
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  issue deviating from a market -determined price" for all four benchmark d eterminations at issue, 
prior to  analysing whether the USDOC disregarded certain input -specific price evidence on the 
record. Thus, the Panel's analysis of whether the USDOC provided a reasoned and adequate 
explanation for its conclusion that in -country pr ices are not market -determined was divorced from 
its discussion of the record evidence, suggesting that, in the Panel's view, the USDOC's approach 
would never sufficiently justify recourse to out -of-country prices, independently of the evidence 
before it. This was particularly apparent from the Panel's review of the Section  129 proceedings 
concerning Solar Panels, where the GOC did not submit a response to the USDOC's Benchmark 
Questionnaire. Even in that context, however, the Panel found that the USDOC fai led to provide a 
reasoned and adequate explanation for its rejection of in -country polysilicon prices, without any 
analysis of the adverse facts available on which the USDOC relied.  
In his separate opinion, the Division member considered "inexplicable" th e majority's decision to 
uphold this finding by the Panel. Given that the Panel did not examine the substance of the evidence 
relied upon by the USDOC for purposes of establishing whether polysilicon prices are not 
market -determined, the Division member co nsidered it unclear on what basis the majority upheld 
the Panel's conclusion, or what the majority considered the USDOC was required to do in order to 
establish that government intervention resulted in price distortion.  
The Division member also noted that  USDOC addressed the Mysteel Report submitted by China as 
an exhibit to the Ordover Report, which provided "an economic framework for evaluating whether 
market prices were 'distorted' by the government's predominant role as a supplier". While it did "not 
take issue with whether Professor Ordover's analytical framework concerning 'market power' is 
useful in the context of antitrust analysis", the USDOC observed that this was "not the only 
[analytical framework] permitted by the Appellate  Body for a market di stortion analysis; nor  … the 
most relevant or explanatory in the context of the [People's Republic of China's ( PRC)] steel industry, 
given the multi -faceted nature of government intervention in that industry". Additionally, the USDOC 
referred to the indici a and supporting information in the Ordover Report but found it unnecessary to 
address each of them separately. The USDOC explained, in this regard, that it did not consider "the 
presence or absence of Professor Ordover's antitrust -based 'indicia'" to be " particularly telling indicia 
of market distortion", and that "[f]or example, the continued participation of private suppliers in the 
market is not particularly probative when market entry and exit decisions, and 'profitability' itself, 
are distorted by gov ernment intervention." Furthermore, even though the USDOC rejected both SIE 
and private prices in the entire steel sector in China as suitable benefit benchmarks, it nevertheless 
sought to analyse relevant price data on the record but found that this data was insufficient to 
conduct any meaningful analysis of whether private prices align with SIE prices. In its analysis, 
however, the Panel simply took issue with the absence of reference by the USDOC to the prices in 
the Mysteel Report, thereby disregarding the entirety of the USDOC's analysis in the Benchmark 
Memorandum as to why these same prices are not market -determined. Therefore, the Division 
member did not believe the majority had any basis for upholding the Panel's conclusion, based on 
the Panel's ass ertion that the USDOC did not sufficiently examine indicia such as fluctuation of steel 
prices over time, fragmentation of the industry, or the existence of private investment. For these 
reasons, he disagreed with the majority's view that the USDOC had fai led to explain "in its 
determinations why the approach it had adopted and the conclusions it had reached were still valid, 
in light of the Mysteel pricing data and the alternative narrative of the Ordover Report" . For him, 
this was precisely what the USDOC  had done. In any event, it would have been for the Panel – not 
the Appellate  Body – to review the evidence on the record and examine it against the USDOC's 
analysis.  
In sum, this Division member found that, in endorsing the Panel's standard, the majority appeared 
to have required an analysis of in -country prices as a condition for recourse to an alternative 
benchmark, even in cases where in -country prices are not available on the record. The task of the 
Panel in the present case was to examine whether the USDOC provided a reasoned and adequate 
explanation for its decision to have recourse to out -of-country prices under Article  14(d). Rather 
than properly engaging with that question, the Panel simply found that the USDOC "did not even 
attempt" to provide any  explanation for its rejection of in -country prices and disregarded price 
evidence on the record, without any substantive assessment of the USDOC's analysis and the 
evidence relied upon by it, including World Bank reports, Organization for Economic Coopera tion and 
Development (OECD) working papers, economic surveys, articles and expert opinions, and 
legislative and administrative documents. In light of the shortcomings in the Panel's analysis, the 
Division member did not agree with the majority's decision t o uphold the Panel's conclusions.  WT/AB/30  
 
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  3.3.5.3   Specificity – Article  2.1(c) of the SCM  Agreement  
One member of the Division disagreed with the majority's findings, recalling that a subsidy 
programme within the meaning of Article  2.1(c) may be evidenced in several ways , including "by a 
systematic series of actions pursuant to which financial contributions that confer a benefit have been 
provided to certain enterprises". The Division member saw no basis in Article  2.1(c) to require an 
investigating authority to demonstra te, first, "the existence of a subsidy within the meaning of 
Article  1.1", and, second, "a 'plan or scheme' pursuant to which this subsidy has been provided to 
certain enterprises". He further noted that a specificity analysis under Article  2.1(c) is not c oncerned 
with redetermining the existence of "subsidized prices", or whether the inputs at issue are produced 
and provided to downstream purchasers pursuant to "government instructions", and that the 
question of whether a measure is consistent with Article  2.1(c) does not require a "redetermination" 
of the existence of a subsidy, or its constituent elements.  
Regarding the Panel's review of the USDOC's findings, the Division member remarked that, in 
assessing whether the USDOC had an objective basis to carr y out a specificity analysis under 
Article  2.1(c), the Panel made no reference to the reasoning and analysis provided by the USDOC in 
the context of the original  investigations, other than to note that the "underlying documents from 
the original investigat ion, for the OCTG and other investigations, [had] not been submitted on the 
record of these compliance proceedings." The Panel appeared thereby to have precluded the 
possibility that the underlying subsidy programmes may have already been identified in the context 
of the USDOC's public body, financial contri bution, and benefit analyses in each investigation. The 
Division member added that rather than faulting the USDOC for not providing "a  reasoned and 
adequate explanation for its conclusions regarding the existence of a subsidy programme", the Panel 
should h ave carefully examined the analysis provided by the USDOC in the context of its public body, 
financial contribution, and benefit findings in order to assess whether the USDOC had identified  the 
"subsidy programmes" that it was investigating, and thus had a n objective basis to carry out a 
de facto specificity analysis under Article  2.1(c). For these reasons, the Division member considered 
that the Panel erred in finding that China had demonstrated that the United  States acted 
inconsistently with Article  2.1(c) of the SCM  Agreement in the Section  129 proceedings at issue.  
3.4  Appellate  Body  Report, Korea – Anti-Dumping Duties on Pneumatic Valves from 
Japan , WT/DS504/AB/R  
This dispute concerned the definitive anti -dumping duties imposed by Korea on imports of certa in 
valves for pneumatic transmissions (pneumatic valves) originating from Japan, following the 
investigation conducted by the Korea Trade Commission (KTC) and the KTC's Office of Trade 
Investigation (OTI). The KTC initiated the investigation and published the notice of initiation on 
21 February  2014 based on an application filed by two producers of pneumatic valves in Korea, 
TPC Mechatronics Corporation (TPC) and KCC  Co., Ltd. (KCC). On 19  August  2015, on the basis of 
the KTC's Final Resolution, the Ministe r of Strategy and Finance (MOSF) imposed anti -dumping duties 
on the imports of pneumatic valves from Japan through Decree  No. 498 for five years at the following 
rates: 11.66% for SMC Corporation (SMC) and exporters of its products, and 22.77% for 
CKD Corporation (CKD), Toyooki Kogyo Co., Ltd., and exporters of their products, as well as other 
suppliers from Japan.  
In the Request  for the Establishment of a Panel by Japan (Japan's panel request), Japan claimed 
that the measure at issue is inconsistent with K orea's obligations under Articles  3.1 and 3.2, 
Articles  3.1 and 3.4, Articles  3.1 and 3.5, Articles  3.1 and 4.1, Article  6.5, Article  6.5.1, Article  6.9, 
Article  12.2, and Article  12.2.2 of the Anti ‑Dumping  Agreement. As a consequence of these 
inconsistenc ies, Japan also claimed that Korea acted inconsistently with Article  1 of the 
Anti‑Dumping  Agreement and Article  VI of the GATT  1994.  
With respect to its terms of reference, the Panel found that the following claims in Japan's panel 
request failed to provi de a brief summary of the legal basis of the complaint sufficient to present the 
problem clearly as required under Article  6.2 of the DSU and are therefore not within the Panel's 
terms of reference:  
a. Japan's claim under Articles  3.1 and 4.1 of the Anti -Dumping Agreement concerning the 
definition of the domestic industry  (claim 7) ;  WT/AB/30  
 
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  b. Japan's claim under Articles  3.1 and 3.2 of the Anti ‑Dumping  Agreement concerning the 
Korean investigating authorities' consideration of the volume of the dumped imports  
(claim  1);  
c. Japan's claim under Articles  3.1 and 3.2 of the Anti ‑Dumping  Agreement concerning the 
consideration of the effect of the dumped imports on prices  (claim 2) ;  
d. Japan's claim under Articles  3.1 and 3.4 of the Anti ‑Dumping  Agreement concerning the 
impact of the dumped imports on the state of the domestic industry, with the exception 
of the allegations that the Korean investigating authorities failed to evaluate two of the 
specific factors listed in Article  3.4 (part of claim 3) ;  
e. Japan's claim under  Articles  3.1 and 3.5 of the Anti ‑Dumping  Agreement concerning the 
alleged failure by the Korean investigating authorities to consider some known factors 
other than the dumped imports that were injuring the domestic industry at the same time 
with the excep tion of the allegations concerning whether the Korean investigating 
authorities considered certain known factors in isolation and dismissed them without an 
adequate examination  (part of claim 5) ;  
f. Japan's claim under Article  6.9 of the Anti ‑Dumping  Agreeme nt concerning the obligation 
to inform interested parties of essential facts that formed the basis of the decision to 
impose definitive anti -dumping measures  (claim 10) ;  
g. Japan's claims under Articles  12.2 and 12.2.2 of the Anti ‑Dumping  Agreement concernin g 
the Korean investigating authorities' obligation to give proper public notice of their final 
determination  (claims 11 and 12) ; and  
h. Japan's consequential claim under Article  VI of the GATT  1994.  
The Panel found that the following claims in Japan's panel r equest provided a brief summary of the 
legal basis of the complaint sufficient to present the problem clearly pursuant to Article  6.2 of the 
DSU and are therefore properly within  the Panel's terms of reference:  
i. Japan's claim under Articles  3.1 and 3.4 of t he Anti‑Dumping  Agreement concerning the 
alleged failure of the Korean investigating authorities to evaluate the ability to raise capital 
or investments, and the magnitude of the margin of dumping  (part of claim 3) ; 
j. Japan's claim under Articles  3.1 and 3.5  of the Anti ‑Dumping  Agreement that the Korean 
investigating authorities' demonstration of causation lacks foundation in their analyses of 
the volume of dumped imports, effects of imports on prices, and the impact of those 
imports on the domestic industry,  irrespectively and independently of whether the Korean 
investigating authorities' analyses are found to be inconsistent with Articles  3.1, 3.2, 
and 3.4 (claim 6) ; 
k. Japan's claim under Articles  3.1 and 3.5 of the Anti ‑Dumping  Agreement concerning the 
allege d failure by the Korean investigating authorities to demonstrate any causal 
relationship between the dumped imports and the injury to the domestic industry  
(claim  4); 
l. Japan's claim under Articles  3.1 and 3.5 of the Anti ‑Dumping  Agreement concerning the 
alleged failure of the Korean investigating authorities to examine certain known factors 
adequately and their examination of such factors in isolation  (part of claim 5) ; 
m. Japan's claims under Articles  6.5 and 6.5.1 of the Anti ‑Dumping  Agreement concerning 
the confidential treatment of information and the provision of non -confidential summaries 
of information for which confidential treatment was sought by the applicants  (claims  8 
and 9); and  
n. Japan's consequential claim under Arti cle 1 of the Anti ‑Dumping  Agreement.  WT/AB/30  
 
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  The Panel then made substantive findings regarding each of the claim found within its terms of 
reference. On claim 3, the Panel found that Japan failed to establish that the Korean investigating 
authorities acted incons istently with Articles  3.1 and 3.4 of the Anti ‑Dumping  Agreement due to their 
alleged failure to evaluate two economic factors, namely the ability to raise capital or investments 
and the magnitude of the margin of dumping. With respect to the ability to ra ise capital or 
investments, the Panel found that Japan failed to point to any facts on the record that would suggest 
that the KTC's analysis was not objective and that a reasonable and unbiased investigating authority 
could not have evaluated the ability o f the domestic industry to raise capital as the KTC did. With 
respect to the magnitude of the margin of dumping, the Panel found that the KTC did more than 
merely list or indicate the existence of margins of dumping, and that the KTC undertook the 
evaluati on as a substantive matter. In addition, the Panel found that Japan failed to demonstrate 
that there were specific factual circumstances in this case that required the KTC to evaluate the 
magnitude of the margin of dumping in any particular manner. On this  basis, the Panel found that 
Japan failed to establish that the KTC acted inconsistently with Articles  3.1 and 3.4 in its evaluation 
of the magnitude of the margin of dumping.  
With respect to the three claims raised under Articles 3.1 and 3.5 of the Anti -Dumping Agreement, 
i.e. claims 4, 5, and 6, the Panel chose to first address Japan's claim 6. In this regard, the Panel 
considered that Japan raised an "independent" claim of violation of Article  3.5 with respect to Korea's 
flawed volume, price effects, and  impact analyses, even if the Panel should find that those flaws do 
not constitute violations of Articles  3.2 and 3.4. The Panel found the Korean investigating authorities 
to have acted inconsistently with Articles  3.1 and 3.5 by failing to: (i) ensure pri ce comparability 
when they compared the individual transaction prices of certain models of dumped imports with the 
average prices of corresponding models of the domestic like product (the relevant price 
comparisons); and (ii) adequately explain their consi deration of the price -suppressing 
and -depressing effects of dumped imports in their determination of causation, in light of the 
undisputed fact that the prices of the dumped imports were higher than those of the domestic like 
product throughout the period  of trend analysis on the basis of both the average price of the product 
as a whole and the average prices of representative models.  
However, the Panel found that Japan failed to demonstrate that the Korean investigating authorities 
acted inconsistently w ith Articles  3.1 and 3.5 of the Anti -Dumping  Agreement because their 
causation determination was undermined by alleged flaws in their consideration of the significance 
of the increase in the volume of the dumped imports. The Panel also found that Japan fai led to 
demonstrate that the Korean investigating authorities' determination of causation is, with respect to 
the analysis of the impact of dumped imports on the domestic industry and independently of any 
inconsistencies with Article  3.4, inconsistent with Articles  3.1 and 3.5 of the 
Anti-Dumping  Agreement.  
With respect to claim 4, the Panel found that Japan's arguments concerning volume trends and price 
trends were identical to its volume and price effects -related arguments under its "independent" 
causation  claim (claim 6), which the Panel rejected. On the basis of the same considerations, the 
Panel dismissed these arguments. Turning to Japan's arguments concerning profit trends, the Panel 
found that Japan failed to establish that insufficient correlation be tween dumped imports and trends 
in domestic industry profits suffices to demonstrate that a reasonable and unbiased investigating 
authority could not have properly found the required causal relationship between the dumped 
imports and injury to the domestic  industry in light of the facts and arguments that were before the 
KTC. Thus, the Panel rejected Japan's claim 4. Finally, with respect to claim 5, the Panel concluded 
that Japan has failed to demonstrate that the Korean investigating authorities acted inc onsistently 
with Article s 3.1 and  3.5 by failing to adequately examine other known factors causing injury to the 
domestic industry at the same time as dumped imports and the cumulative effect of such other 
known factors.  
Turning to claim 8, the Panel consi dered that the main issue before it under Article  6.5 of the 
Anti-Dumping Agreement was whether the KTC granted confidential treatment to 38 items of 
information identified by Japan that were provided by the applicants without requiring a showing of 
good c ause and without an objective assessment of that showing to justify the confidential 
treatment.  
The Panel indicated that, under Article  15 of the Enforcement Rule of the Customs Act of Korea lists 
five categories of information that are entitled to confide ntial treatment in anti -dumping 
investigations. Furthermore, in the anti -dumping investigation at issue, the applicants filed WT/AB/30  
 
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  "Disclosed", or public, versions of at least three of their written submissions, and certain information 
was redacted from these d ocuments. The Panel noted that there was no explicit mention of "good 
cause" in any of the three public versions of the written submissions. Nor was there any link therein 
between the redacted information and the categories laid out in Article  15 of the En forcement Rule 
of the Customs Act. Likewise, there was no specific indication in the relevant documents on the 
record that the KTC or the OTI assessed whether good cause had been shown by the applicants. 
Consequently, the Panel considered that the Korean i nvestigating authorities granted confidential 
treatment to certain information provided by the applicants "without any evidence that a showing of 
good cause that would justify the confidential treatment had been required from the applicants". For 
the foreg oing reasons, the Panel found that, with respect to the 38 items of information identified 
by Japan, the Korean investigating authorities acted inconsistently with Article  6.5 of the 
Anti-Dumping  Agreement.  
In the context of claim 9, the Panel indicated th at the issue before it under Article  6.5.1 of the 
Anti-Dumping Agreement was whether, with respect to certain information, the KTC failed to require 
that the submitting parties provide a non -confidential summary of information for which confidential 
treatm ent was sought.  
The Panel noted that the "Disclosed" versions of the three communications submitted by the 
applicants (the investigation application, the summary of opinion from attorneys, and the rebuttal 
opinion of applicants) have entire sections from w hich information was removed, without any 
narrative to summarize the specific information deleted from the text. The Panel noted that the 
information redacted from the submissions includes a significant amount of important data, such as 
information relatin g to the production and sales of the domestic like product and various economic 
indicators regarding the state of the domestic industry. Thus, in the Panel's view, "the 'Disclosed' 
versions of the three communications identified by Japan cannot be said to contain a summary in 
sufficient detail to 'permit a reasonable understanding of the substance of the information submitted 
in confidence'." On this basis, the Panel concluded that, "[b]y failing to require that the submitting 
parties provide a sufficient n on-confidential summary of the information in question, the 
Korean  Investigating Authorities acted inconsistently with Article  6.5.1 of the 
Anti-Dumping  Agreement."  
3.4.1   Article  6.2 of the DSU – sufficiency of Japan's panel request and the Panel's terms 
of refe rence  
On appeal, Japan argued that the Appellate  Body should reverse the Panel's findings that Japan's 
claims concerning the definition of domestic industry (claim 7), the volume of the dumped imports 
(claim 1), the price effects of the dumped imports (cla im 2), the disclosure of essential facts 
(claim  10) and part of Japan's claim concerning the impact of the dumped imports on the domestic 
industry (claim 3) were outside the Panel's terms of reference. Korea, on its part, requested the 
Appellate  Body to reverse the Panel's findings that Japan's claims concerning causation (claims 4,  6, 
and part of claim 5), as well as its claims concerning the confidential treatment of information 
(claims  8 and  9) were within the Panel's terms of reference.  
The Appellate  Body found that the requirements under Article  6.2 of the DSU are central to the 
establishment of the jurisdiction of a panel since a panel request governs a panel's terms of reference 
and delimits the scope of the panel's jurisdiction, and fulfils a due pr ocess objective by providing the 
respondent and third parties notice regarding the nature of the complainant's case and enabling 
them to respond accordingly. To assess whether a panel request is sufficiently precise to meet the 
requirements of Article  6.2 of the DSU, panels must scrutinize carefully the panel request, read as 
a whole, and on the basis of the language used. Whether a panel request complies with the 
requirements of Article  6.2 of the DSU must therefore be determined on the face of the panel 
request, on a case -by-case basis. Furthermore, subsequent submissions of the parties during panel 
proceedings may not cure defects in the panel request but may be consulted to confirm the meaning 
of the words used therein.  
The Appellate  Body noted that the present dispute concerned the requirement to provide a brief 
summary of the legal basis of the complaint sufficient to present the problem clearly in the second 
sentence of Article  6.2 of the DSU . To meet this requirement, a panel request must plainly conn ect 
the challenged measure(s) with the provision(s) of the covered agreements claimed to have been 
infringed. To this end, the Appellate  Body indicated that the identification of the treaty provision 
claimed to have been violated is always necessary and a minimum prerequisite, but that depending WT/AB/30  
 
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  on the particular circumstances of a case, the identification of the treaty provision alleged to have 
been breached, alone, may not be sufficient to comply with the requirements of Article  6.2. This is 
the case, for  example, where a provision contains not one single, distinct obligation, but rather 
multiple obligations, such that a panel request might need to specify which of the obligations 
contained in the provision is being challenged. In addition, the Appellate  Body recalled that a panel 
request need only provide the legal basis of the complaint, that is, the claims  underlying this 
complaint, and not the arguments  in support thereof. Finally, the Appellate  Body recalled its 
statements in certain past disputes that  a brief summary of the legal basis of the complaint required 
by Article  6.2 of the DSU "aims to explain succinctly how or why the measure at issue is considered 
by the complaining Member to be violating the WTO obligation in question". The Appellate  Body 
emphasized that the use of the phrase " how or why" in these cases does not imply a new and 
different legal standard for complying with the requirements of Article  6.2 of the DSU.  
The Appellate  Body then considered that, generally speaking, the Panel's arti culation of the legal 
standard under Article  6.2 of the DSU complied with these requirements. This being said, the 
Appellate  Body noted that, to the Panel, with regard to the seven claims that invoked Article  3.1 of 
the Anti -Dumping Agreement together with another subparagraph of Article  3 or Article  4.1 of the 
Anti-Dumping Agreement, merely paraphrasing the first part of Article  3.1, or use the language of 
that provision in the narrative of a panel request, would not in itself normally suffice to present the 
problem clearly. The Appellate  Body observed that the Panel relied , inter alia , on this reasoning in 
determining whether these  claims were within its terms of reference.  
To the Appellate  Body, however, none of Japan's claims were limited to paraphrasing the language 
of Article  3.1 of the Anti -Dumping Agreement alone. Rather, Japan also identified, at a minimum, 
another paragraph of Article  3 or Article  4 alleged to have been breached. The Appellate  Body 
therefore indicated that whether Japan's paraphrasing of Article  3.1 of the Anti -Dumping Agreement, 
together with the remainder of the narrative contained in the panel re quest, including Japan's 
reference to the other provision(s) concerned, complied with the requirements of Article  6.2 of the 
DSU should be assessed on a case -by-case basis, depending on the relevant circumstances of each 
claim. Such circumstances may inclu de the nature of the measure at issue and the manner in which 
it is described in the panel request, as well as the nature of the provision of the covered agreements 
alleged to have been breached.  Thus, the fact that the narrative of seven of Japan's claims  
paraphrased  the language of Article  3.1 was not, in and of itself, dispositive of whether the panel 
request complied  with the requirements of Article  6.2 of the DSU.  
3.4.1.1   Terms of reference – Japan's claim 7 concerning the definition of domestic 
industry  
The Appellate  Body noted that the Panel had found Japan's claim 7 concerning the definition of the 
domestic industry to consist of a general reference to the language in Article  3.1 of the Anti ‑Dumping  
Agreement, which the Panel had found not to be sufficient to present the problem clearly.  However, 
the Appellate  Body indicated that, while part of Japan's claim may consist of paraphrasing the 
language of Article  3.1 of the Anti -Dumping Agreement, this was not, in and of itself, sufficient to 
establish that Japa n's panel request did not comply with the requirements of Article  6.2 of the DSU. 
Japan's claim, while brief, identified both Articles 3.1 and 4.1 of the Anti -Dumping Agreement as the 
provisions of the covered agreements alleged to have been breached. Further, the Appellate  Body 
noted that Japan's panel request related specifically to the portion of the measure at issue that 
concerns the definition of domestic industry and its alleged inconsistency with Korea's obligation 
under Articles  3.1 and 4.1. Regarding the nature of the provisions concerned, the Appellate  Body 
found that the obligation established by Articles 3.1 and 4.1 is well -delineated, and that these 
provisions, together, establish a distinct obligation, such that Japan's identification of  these 
provisions in the narrative of the panel request plainly connects the measure at issue with the 
provisions of the covered agreement alleged to have been breached, as required by Article  6.2 of 
the DSU. The Appellate  Body therefore reversed the Panel 's finding that Japan's claim  7 was not 
within its terms of reference.  
3.4.1.2   Terms of reference – Japan's claim 1 concerning the volume of the dumped 
imports  
The Appellate  Body found that Japan's claim 1 concerning the volume of the dumped imports, 
beyond paraph rasing Article  3.1, also included a reference to Article  3.2 and indicated that it related 
to "Korea's analysis of a significant increase of the imports", such that it identified Articles 3.1 WT/AB/30  
 
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  and 3.2 as the provisions of the covered agreements alleged to h ave been breached. The 
Appellate  Body also found that the panel request made it clear that this claim concerned the specific 
portion of the measure at issue relating to the Korean investigating authorities' consideration of the 
volume of the dumped imports  and its alleged inconsistency with Articles  3.1 and 3.2. Regarding the 
nature of the provisions at issue, the Appellate  Body found that the obligation established by 
Article  3.1 and the first sentence of Article  3.2 is distinct and well -delineated, in tha t it requires 
investigating authorities to make an objective examination of whether there has been a significant 
increase in dumped imports on the basis of positive evidence. Thus, by referring to Articles  3.1 and 
3.2 as the provisions of the covered agree ment alleged to have been breached by Korea, and by 
indicating specifically which of the elements in Article  3.2 it concerned, namely the consideration of 
the volume of dumped imports, the Appellate  Body found that Japan's claim, while brief, plainly 
conne cted the challenged measure with the obligation in question. The Appellate  Body therefore 
reversed the Panel's finding that Japan's claim 1 concerning the volume of the dumped imports was 
not within its terms of reference.  
3.4.1.3   Terms of reference – Japan's clai m 2 concerning the price effects of the dumped 
imports  
With regard to claim 2 concerning the price effects of the dumped imports, the Appellate  Body 
indicated that the Panel correctly noted that the panel request identified both Articles  3.1 and 3.2 of 
the Anti-Dumping Agreement as the provisions alleged to have been breached. The Appellate  Body 
noted that the Panel then divided Japan's claim into two different "elements" in order to assess its 
consistency with Article  6.2 of the DSU, namely, one regarding the obligation under Article  3.1 of 
the Anti ‑Dumping Agreement, and the other regarding the obligation under Article  3.2. The 
Appellate  Body noted in particular that, with regard to the first of these elements, the Panel relied 
on its earlier finding that merely paraphrasing Article  3.1 of the Anti -Dumping Agreement will not 
normally suffice to present the problem clearly. However, contrary to the Panel's finding in this 
regard, the Appellate  Body indicated that whether Japan's paraphrasing of Article  3.1, together with 
the remainder of the narrative in the panel request, complies with the requirements of Article  6.2 
should be assessed on a case -by-case basis, taking into account the specific circumstances of each 
claim , including the nature of the measure a nd that of the obligation alleged to have been breached.  
The Appellate  Body then noted that, with regard to the nature of the measure at issue, Japan's panel 
request clearly indicated that this claim concerned the specific portion of the measure at issue t hat 
related to the Korean investigating authorities' consideration of the price effects of the dumped 
imports, more precisely significant price depression and suppression, and its alleged inconsistency 
with Articles  3.1 and 3.2. With regard to the nature o f the provisions at issue, the Appellate  Body 
found that the second sentence of Article  3.2, in conjunction with Article  3.1, sets out an obligation 
that is distinct and well -defined, with, at its core, the requirement to consider, on the basis of an 
objec tive examination of positive evidence, whether the effect of the dumped imports on domestic 
prices consists of the economic phenomena contained therein. Therefore, the Appellate  Body found 
that, by identifying the relevant portion of the measure concerned by this claim, listing Articles  3.1 
and 3.2 of the Anti -Dumping Agreement as the provisions of the covered agreement alleged to have 
been breached  by Korea, and indicating specifically which of the phenomena in Article  3.2 the claim 
concerns, Japan's claim , while brief, plainly connected the challenged measure with the obligation 
in question. The Appellate  Body therefore reversed the Panel's finding that Japan's claim  2 
concerning the price effects of the dumped imports was not within its terms of reference .  
3.4.1.4   Terms of reference – Japan's claim 3 concerning the impact of the dumped 
imports on the domestic industry  
The Appellate  Body recalled that the Panel found the first part of Japan's claim 3 to paraphrase the 
first part of Article  3.1, which, to the Panel, is not normally sufficient to present the problem clearly. 
The Appellate  Body noted that the Panel then proceeded to determin e whether the second part of 
the claim – the assertion of an alleged failure to conduct "an evaluation of all relevant economic 
factors and indices having a bearing on the state of the domestic industry at issue " – complied with 
the requirements of Article  6.2 of the DSU. The Appellate  Body observed that, noting that Article  3.4 
of the Anti ‑Dumping Agreement sets forth a mandatory list of factors that must be evaluated in each 
case, the Panel found that the panel request, on its face, presented the problem clearly by indicating 
that the failure by the KTC to evaluate one or more of these factors constituted a violation of 
Articles  3.1 and 3.4. However, the Appellate  Body also noted that the Panel found three other 
allegations not to fall within its terms of reference, specifically that: (i) the KTC did not establish a WT/AB/30  
 
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  logical link between its findings on the volume and price effects under Article  3.2 and its finding of 
adverse impact under Article  3.4; (ii) with respect to certain factors listed in Article  3.4, the 
KTC failed to demonstrate any explanatory force of dumped  imports for understanding domestic 
industry trends; and (iii) the KTC attached a high degree of importance to the relevant factors 
highlighting negative aspects, while disregarding or downpla ying without any explanation the factors 
suggesting that the Korean industry was not suffering injury. This is because, to the Panel, the panel 
request did not indicate or suggest that Japan's claim regarding Korea's analysis  of the impact of 
the imports u nder investigation on the domestic industry extends to include these allegations.  
The Appellate  Body considered that Japan's panel request identified Articles  3.1 and 3.4 of the 
Anti-Dumping Agreement as the provisions alleged to have been breached. Furthe rmore, the 
Appellate  Body noted that Japan challenged, under claim 3, only the specific portion of the measure 
at issue that related to the Korean investigating authorities' analysis  of the impact of the imports 
under investigation on the domestic industry . With regard to the nature of the provisions at issue, 
the Appellate  Body considered that Article  3.4, together with Article  3.1, establishes a distinct 
obligation that essentially requires the investigating authorities to objectively examine the impact o f 
the dumped imports on the domestic industry on the basis of positive evidence concerning all 
relevant economic factors and indices having a bearing on the state of the domestic industry. To the 
Appellate  Body, therefore, Japan's claim 3 provided a brief summary of the legal basis of the 
complaint sufficient to present the problem clearly. Furthermore, the Appellate  Body indicated that 
the three allegations that the Panel found to be outside its terms of reference served to explain the 
manner in which the Korean investigating authorities would have breached the distinct obligation 
established by Articles  3.1 and 3.4, such that Japan was not required to include in its panel request 
this level of detail. The Appellate  Body therefore reversed the Panel's findi ng that these 
three  allegations were not within its terms of reference.  
3.4.1.5   Terms of reference – Japan's claim s 4, 5, and 6 concerning causation  
With regard to Japan's claim 4 concerning causation, the Appellate  Body noted that the Panel found 
that this claim, on its face, contained two aspects, and that the first aspect – relating to the alleged 
failure to conduct an objective examination on the basis of positive evidence – was qualified by the 
second aspect, that is , the assertion that Korea failed to demonstrate any causal relationship. The 
Appellate  Body also noted that the Panel then analy sed the nature of obligation regarding the 
demonstration of the causal relationship established by Article  3.5, and noted that Japan's panel 
request unequivocally presented the problem as one that relates to the failure to demonstrate this 
causal relationship. To the Appellate  Body, the Panel's analysis reflected its consideration of both 
the nature of the measure and that of the obligation at issue, consistently with the applicable 
standard under Article  6.2 of the DSU. In particular, with regard to the nature of the measure at 
issue, the Appellate  Body observed that Japan's claim 4 related specifically to the Korean 
investigating  authorities' alleged failure "to demonstrate that the imports under investigation 
were … causing injury to the domestic industry".  
With re gard to the nature of the provisions at issue, the Appellate  Body indicated that Article  3.5, 
together with Article  3.1, establishes obligations that are multi -layered. At the same time, the 
Appellate  Body noted that Japan presented three claims under Articles 3.1 and 3.5, each with its 
distinct scope. The Appellate  Body considered that Japan's claim 4 concerned the all eged failure to 
demonstrate the causal relationship on the basis of an objective examination and all relevant 
evidence before the authorities as required under Article  3.5, in particular its second sentence, as 
well as under Article  3.1. Thus, by indicatin g in the narrative of its claim which aspect of Articles 3.1 
and 3.5 was concerned by its claim, together with the relevant aspect of the measure at issue, the 
Appellate  Body found that Japan's claim 4, while brief, plainly connected the challenged measure  
with the provision alleged to have been breached such that Japan's claim 4 complied with the 
requirements of Article  6.2 of the DSU. The Appellate  Body therefore upheld the Panel's finding that 
Japan's claim 4 was within its terms of reference.  
With rega rd to Japan's claim 5, the Appellate  Body noted that the Panel found the panel request to 
provide a brief explanation of how or why Japan considers the measure at issue to be violating the 
specific WTO obligations in question, with respect to the alleged f ailure of the Korean investigating 
authorities to adequately examine certain known factors. The Appellate  Body considered that Japan's 
claim 5 related specifically to the Korean investigating authorities' examination of the non -attribution 
factors. While, as the Appellate  Body recalled, Article  3.5, together with Article  3.1, establishes 
obligations that are multi -layered, the Appellate  Body nonetheless found that Japan had identified WT/AB/30  
 
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  in the narrative of its panel request precisely which aspect of the provi sion its claim concerned. Thus, 
the Appellate  Body found that, by identifying the specific aspects of both the measure at issue and 
the provision concerned, Japan's claim 5 plainly connected the challenged measure with the 
provisions of the covered agreeme nts alleged to have been breached, in accordance with the 
requirements of Article  6.2 of the DSU. The Appellate  Body's findings did not extend, however, to 
the Panel's findings that other allegations raised by Japan under claim 5 were not within its terms 
of reference, given that neither participant had appealed this aspect of the Panel  Report . Thus, the 
Appellate  Body found that the Panel did not err in finding that part of Japan's claim 5, with regard 
to Korea's alleged failure to consider adequately all known factors other than the dumped imports 
as causing injury, was within its terms of reference.  
With re gard to Japan's claim 6, the Appellate  Body noted that the Panel found this claim to be 
sufficiently precise on its face to present the problem clearly , namely that, in Japan's view, the KTC's 
causation determination was undermined by certain aspects of its volume, price effects, and impact 
analyses whether or not those aspects were inconsistent with Articles  3.1, 3.2, or 3.4 of the 
Anti-Dumping Agreemen t. The Appellate  Body further observed that the Panel then considered the 
nature of the claim in light of the "irrespective and independent" language it contained and found 
that this claim was independent in nature. The Panel considered this claim to rest on three premises, 
namely: (i) certain aspects of the KTC's volume, price effects, and impact analyses were "flawed"; 
(ii) these "flaws" were either unrelated to the obligations under Articles  3.1, 3.2, and  3.4, or did not, 
in themselves, constitute violat ions of Articles  3.1, 3.2, and 3.4; and (iii) these "flaws" nevertheless 
have a sufficient impact on the KTC's causation determination to require the conclusion that that 
determination is inconsistent with Articles  3.1 and  3.5. 
The Appellate  Body found tha t Japan's claim 6 concerned a specific aspect of the Korean measure, 
namely the determination of causation by the Korean investigating authorities within the meaning 
of Article  3.5 of the Anti -Dumping Agreement, and more specifically the alleged "lack[]" o f 
"foundation" for the causation determination in the Korean investigating authorities' volume, price 
effects, and impact analyses. Recalling that Articles 3.1 and 3.5 establish obligations that are multi -
layered, the Appellate  Body found that Japan had id entified in the narrative of its claim the particular 
aspect of the provision concerned, namely the demonstration of the causal relationship between the 
dumped imports and the domestic industry as provided in the first sentence of Article  3.5. The 
Appellat e Body also noted that the wording of the claim indicated that it was brought "irrespective 
and independent of" whether such "flawed" volume, price effects, and impact analyses would be 
inconsistent with Articles  3.1, 3.2, and 3.4. Thus, the Appellate  Body found that the reference to 
Articles  3.1 and 3.5, along with the narrative of claim 6 on its face, identified with sufficient precision 
which part of Articles  3.1 and 3.5 Japan's claim 6 concerned, so as to meet the minimum requirement 
under Article  6.2 of the DSU.  
In response to Korea's argument that the Panel itself was uncertain as to the precise nature of 
Japan's claim 6, and developed its own theory regarding the "premises" underlying Japan's claim, 
the Appellate  Body found that the Panel, in the stat ements referred to by Korea, was responding to 
Korea's argument regarding the alleged ambiguity of the term "irrespective and independent" in 
Japan's panel request. The Appellate  Body observed in any event that the considerations regarding 
the nature of th e claim were not essential for the assessment of the consistency of the panel request 
with the requirements of Article  6.2 of the DSU. This is because whether a claim is related to, 
contingent on, or independent from another claim does not detract from the requirement under 
Article  6.2 of the DSU to consider the panel request on its face to determine whether it provides the 
legal basis of the complaint sufficient to present the problem clearly. The Appellate  Body thus found 
that the Panel did not err in finding that Japan's claim 6 was within its terms of reference.  
3.4.1.6   Terms of reference – Japan's claims 8 and 9 concerning the confidential treatment 
of information  
With regard to Japan's claims 8 and 9 concerning the confidential treatment of information, th e 
Appellate  Body observed, like the Panel, that Japan's claims identified Articles 6.5 and 6.5.1 of the 
Anti-Dumping Agreement as the provisions of the covered agreement alleged to have been 
breached. The Appellate  Body also noted that, with respect to the  nature of the measure at issue, 
the narrative included in these claims indicated that they concerned specifically Korea's treatment 
of certain information as confidential under Article  6.5 of the Anti -Dumping Agreement, and Korea's 
treatment of summaries of confidential information under Article  6.5.1 of the Anti -Dumping 
Agreement. Turning to the nature of the provisions concerned, the Appellate  Body found that WT/AB/30  
 
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  Article  6.5 establishes a clear and well -delineated obligation by requiring an authority to trea t certain 
information as confidential only "upon good cause shown", such that referencing this provision in a 
panel request, and connecting it to the specific portion of the measure at issue, suffices to comply 
with the requirements of Article  6.2 of the D SU.  
With respect to claim 9, which was made pursuant to Article  6.5.1, the Appellate  Body noted that it 
referred specifically to the first two sentences of Article  6.5.1, which oblige the investigating 
authorities to require non -confidential summaries of confidential information in sufficient detail to 
permit a reasonable understanding of the substance of the information submitted in confidence. The 
Appellate  Body found this portion of the provision to establish a clear and well -delineated obligation, 
such that referencing these sentences sufficed to provide a clear indication of the legal basis of 
Japan's complaint under this claim. More specifically, the Appellate  Body noted that the narrative in 
Japan's claim made clear that it took issue with the allege d failure of the Korean investigating 
authorities: (i) to require the applicants to furnish non -confidential summaries of their submissions, 
questionnaire responses, and amendments thereof; and (ii) where such summaries were provided, 
to ensure that they w ere in sufficient detail to permit a reasonable understanding of the substance 
of the information submitted in confidence. The Appellate  Body therefore upheld the Panel's findings 
that Japan's claims 8 and 9 were within its terms of reference.  
3.4.1.7   Terms of ref erence – Japan's claim 10 concerning the disclosure of essential facts  
With regard to claim 10 concerning the disclosure of essential facts, the Appellate  Body noted that 
the Panel considered that the claim merely paraphrased the language of Article  6.9 of  the 
Anti-Dumping Agreement, which did not explain how or why Japan considered the measures at issue 
to be inconsistent with this provision. However, the Appellate  Body indicated that the Panel did not 
provide any further analysis on the circumstances of t his case, such as the nature of the measure 
or that of the provision at issue, which it should have done in order to determine whether, despite 
its brevity, claim 10 fulfilled the requirements of Article  6.2 of the DSU .  
The Appellate  Body considered that,  with regard to the nature of the measure, the claim related 
specifically to the Korean investigating authorities'  alleged failure "to inform the interested parties 
of the essential facts under  consideration which formed the basis for the decision to impos e definitive 
anti-dumping measures ". Regarding the nature of the provision concerned, the Appellate  Body found 
that Article  6.9 established a distinct and well -delineated obligation essentially requiring the 
investigating authority to disclose the essentia l facts to all interested parties in a timely manner, 
that is, before the final determination is made and in sufficient time for the parties to defend their 
interests. Thus, to the Appellate  Body, by identifying the specific aspect of the measure at issue 
under this claim, and by referring to Article  6.9 of the Anti -Dumping Agreement, Japan's claim  10 
plainly connected the challenged measure with the provision alleged to have been breached such 
that the panel request met the requirements of Article  6.2 of t he DSU. The Appellate  Body therefore 
reversed the Panel's finding that Japan's claim 10 concerning the disclosure  of essential facts was 
not within its terms of reference.  
3.4.2   Definition of the domestic industry – whether the Appellate  Body can complete the 
analysis  
Japan argued that, if the Appellate  Body reverses the Panel's finding that Japan's claim under 
Articles  3.1 and 4.1 of the Anti -Dumping Agreement was not within its terms of reference, the 
Appellate  Body should complete the legal analysis. According  to Japan, the KTC acted inconsistently 
with Articles  3.1 and 4.1 by defining the domestic industry as the two applicants of the underlying 
anti-dumping investigation, whose production the KTC found to constitute a "major proportion" of 
the total domestic production of the like products. Japan alleged several defects in the KTC's 
calculation of the proportion of the total domestic output attributable to the two applicants. Japan 
further argued that the KTC provided no explanation at all to show whether and how the 
two applicants could be considered to represent the total domestic production as a whole. As a 
result, Japan contended that there was a material risk of distortion in the KTC's definition of the 
domestic industry. Korea contended that there were no defects in the KTC's calculation. 
Furthermore, Korea maintained that all domestic producers were invited to participate and received 
questionnaires, but only the two applicants responded, and that nothing in the process of defining 
the domestic ind ustry at issue was skewed or biased in any way.  WT/AB/30  
 
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  The Appellate  Body recalled that in defining the domestic industry as a major proportion of the total 
domestic production, an investigating authority is required to assess both quantitative and 
qualitative aspects, and ensure that it does not act in a manner that gives rise to a material risk of 
distortion. The Appellate  Body recalled that before the Panel, the parties made arguments similar to 
those raised on appeal, but the Panel neither explor ed these arguments nor scrutinized and weighed 
relevant evidence before it. In addition, the Appellate  Body noted that neither the "Relevant facts" 
section in the Panel  Report  nor undisputed facts on the Panel record allows the Appellate  Body to 
assess Jap an's claim in light of the parties' arguments. Specifically, the Appellate  Body found that it 
did not have sufficient factual findings by the Panel or undisputed facts on the Panel record to assess 
whether the KTC considered the available evidence objectiv ely in calculating the proportion of the 
total domestic production accounted for by the applicants, whether the two applicants included in 
the definition of the domestic industry were sufficiently representative of the total domestic 
production, or whether  the Korean investigating authorities' process of defining the domestic 
industry introduced a material risk of distortion. Consequently, the Appellate  Body was unable to 
complete the legal analysis.  
3.4.3   Magnitude of the margin of dumping  
Japan appealed the Pan el's conclusion that Japan failed to demonstrate that the KTC's evaluation of 
the magnitude of the margin of dumping was inconsistent with Articles  3.1 and 3.4 of the 
Anti-Dumping  Agreement. Japan argued that an investigating authority must evaluate the du mping 
margin in light of the interaction of the prices between the dumped imports and the domestic like 
products, and the Panel erred in its interpretation to the extent it suggested otherwise. Regarding 
the Panel's application of these provisions, Japan c ontended that the KTC did not explain its finding 
that the dumping margins were significant, and consequently that dumping had a significant impact 
on prices  of both the dumped product and the domestic like product. In addition, Japan argued that 
the KTC w as required to conduct some form of counterfactual analysis in this case given the 
overselling of dumped imports. In response, Korea contended that the Panel correctly found that 
the KTC did more than merely list or indicate the existence of margins of dum ping, and instead 
evaluated the magnitude of the margin of dumping as a substantive matter.  
The Appellate  Body considered that Articles  3.1 and 3.4 require an investigating authority to 
evaluate the magnitude of the margin of dumping, and to assess its rel evance and the weight to be 
attributed to it in the injury assessment. However, the Appellate  Body did not consider that these 
provisions require any one of the factors listed in Article  3.4 to be evaluated in a particular manner 
or given a particular rele vance or weight. Accordingly, the Appellate  Body disagreed with Japan that 
Article  3.4 requires an investigating authority to evaluate the dumping margin in light of the 
interaction of the prices between the dumped imports and the domestic like products, a nd considered 
the Panel's articulation of the legal standard to comport with a proper interpretation of Article  3.4. 
Regarding the Panel's application of Articles  3.1 and 3.4, the Appellate  Body recalled the Panel's 
finding that the KTC observed that the d umping margins were significant, and consequently that 
dumping had a significant impact on prices of both the dumped product and the domestic like 
product. In addition, the Appellate  Body recalled that the KTC found evidence of a competitive 
relationship b etween the dumped imports and domestic like product, and that the Panel found no 
error in this regard. Consequently, the Appellate  Body found that Japan failed to establish that the 
KTC's finding was "not explained at all". In addition, the Appellate  Body did not consider that the 
overselling by dumped imports itself necessarily requires  the magnitude of the margin of dumping 
to be evaluated in a particular manner, such as through some form of a counterfactual analysis. For 
these reasons, the Appellate  Body upheld the Panel's finding that Japan failed to establish that the 
KTC acted inconsistently with Articles  3.1 and 3.4 with respect to its evaluation of the magnitude of 
the margin of dumping.  
3.4.4   Causation – Japan's claim 6  
3.4.4.1   Whether the Panel erred in its inte rpretation or application of Article  3.5 by 
subsuming all of the obligations of Articles  3.2 and 3.4 under Article  3.5 of the 
Anti-Dumping Agreement  
On appeal, Korea argued that the Panel "effectively" interpreted Article  3.5 of the 
Anti-Dumping  Agreement  as setting forth an independent, comprehensive obligation to examine the 
volume, price effects, and consequent impact of the dumped imports as part of the causation 
obligation of Article  3.5. Korea contended that the Panel "walk[ed] through" the exact sam e WT/AB/30  
 
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  questions of volume, price, and overall impact that one would normally consider in the analyses 
under Articles  3.2 and 3.4 of the Anti -Dumping  Agreement.  
The Appellate  Body explained that claims regarding alleged deficiencies in an investigating 
authori ty's analyses of the volume and price effects, and its examination of the impact of the dumped 
imports on the state of the domestic industry, are reviewable by a panel under Articles  3.2 and 3.4, 
respectively, as these provisions contain the requirements p ursuant to which the investigating 
authority conducts such analyses. In contrast, with respect to a claim under Article  3.5, a panel is 
tasked with reviewing an investigating authority's ultimate demonstration that the "dumped imports 
are, through the effe cts of dumping, as set forth in paragraphs 2 and 4, causing injury" to the 
domestic industry. In so doing, a panel is called upon to review whether the investigating authority 
properly linked the outcomes of its analyses conducted pursuant to Articles  3.2 and 3.4, taking into 
account the evidence and factors required under Article  3.5, in coming to a definitive determination 
regarding the causal relationship between dumped imports and injury to the domestic industry. A 
panel's review of a claim under Articl e 3.5, therefore, concerns the investigating authority's ultimate 
determination of causation on the basis of a proper linkage among the various components, in light 
of all evidence and factors set out in that provision. A panel's review does not call for r evisiting the 
question whether each of the interlinked components of this determination itself meets the applicable 
requirements set out in Article  3.2 or 3.4. Examining such consistency in the context of a claim 
under Article  3.5 would effectively require  a panel to incorporate and apply requirements and 
disciplines set out in other paragraphs of Article  3, which are not contained in the text of Article  3.5. 
Turning to the present dispute, the Appellate  Body recalled that, in explaining its understanding o f 
the phrase "irrespective and independent" in claim 6, the Panel noted that it could not preclude the 
possibility that an investigating authority's determination of causation may be inconsistent with 
Article  3.5 due to inadequacies in its analysis of the volume, price effects, or impact of dumped 
imports, even if these do not demonstrate a violation of Articles  3.2 and/or  3.4. The Appellate  Body 
explained that by virtue of the phrase "through the effects of dumping, as set forth in paragraphs  2 
and 4" in t he first sentence of Article  3.5, to the extent that a panel finds that an investigating 
authority's volume, price effects, and impact analyses  are inconsistent with its obligations under 
Articles  3.2 and 3.4, such inconsistencies would likely undermine an  investigating authority's overall 
causation determination and consequentially  lead to an inconsistency with Article  3.5. However, the 
Appellate  Body noted that the "possibility" referred to above by the Panel appeared to concern a 
different scenario, in w hich an investigating authority's analyses of the volume, price effects, and 
impact do not themselves demonstrate an inconsistency with Article  3.2 or Article  3.4, but 
nonetheless contain "inadequacies" that "independently" constitute a violation of Articl e 3.5. The 
Appellate  Body explained that the totality of the evidence and factors stipulated under Article  3.5, 
including the evidence underpinning an investigating authority's volume, price effects, and impact 
analyses, may be reviewed under Article  3.5 for the purpose of examining whether an investigating 
authority has demonstrated the requisite causal relationship. The Appellate  Body did not exclude the 
possibility that, based on such a review, a panel might find that an investigating authority erred 
under Article  3.5 in its demonstration of causation due to its failure to link properly its consideration 
of volume and price effects, and its examination of the impact on the state of the domestic industry, 
even where these elements, individually, may not br each the obligations set out in Articles  3.2 
and 3.4, respectively. To that extent, the Appellate  Body did not find the Panel to have erred in its 
approach merely because it identified the "possibility" referred to above and proceeded to examine 
Japan's "i ndependent" causation claim as set out in claim 6 in Japan's panel request.  
However, the Appellate  Body considered that in order for it to determine whether, in applying  
Article  3.5 for the purpose of examining Japan's claim 6, the Panel erroneously "walk [ed] through" 
the exact same questions of volume, price effects, and overall impact that one would normally 
consider in the analyses under Articles  3.2 and 3.4, the Appellate  Body would have to review the 
Panel's findings under claim 6 in light of the clai ms and arguments raised on appeal by Japan and 
Korea.  
3.4.4.2   Whether the Panel failed to consider volume as an essential building block for any 
finding of causation  
On appeal, Japan argued that the Panel rejected its argument by focusing too narrowly on the 
requirements of the first sentence of Article  3.2 regarding volume, and not on the proper analysis 
under Article  3.5 regarding causation. According to Japan, in order to determine whether the 
KTC conducted a proper causation analysis under Article  3.5, it was for the Panel to consider the WT/AB/30  
 
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  volume -related facts and other facts as part of a holistic analysis of the KTC's finding of causation 
and how the KTC explained that finding.  
The Appellate  Body recalled that, as the Panel noted, Japan's allegation that certa in flaws in the 
KTC's analysis of the volume of dumped imports "independently" undermined its causation 
determination was based on the fact that: (i) the volume of dumped imports decreased during two 
years of the three -year period of trend analysis; and (i i) the volume of dumped imports increased 
only modestly in absolute terms and decreased in terms of market share in 2013 compared with 
2010. The Panel noted that the KTC considered whether there was a significant increase in dumped 
imports in absolute term s, relative to domestic consumption, and relative to domestic production. 
According to the Panel, the KTC neither relied on, nor was required to show, a significant increase 
of dumped imports from 2010 to 2012 or over the entire period of trend analysis. T he Panel further 
found that the KTC examined the trends in volume and market share on an end -point to end -point 
basis as well as on a year -on-year basis, and did not ignore the decline in dumped imports from 
2010 to 2012.  
The Appellate  Body noted that Arti cle 3.5 does not prescribe a particular methodology for evaluating 
the volume of imports for the purposes of demonstrating the causal link between dumped imports 
and injury to the domestic industry. Rather, Article  3.2, first sentence, requires an investig ating 
authority to consider "whether there has been a significant increase in dumped imports, either in 
absolute terms or relative to production or consumption". The Appellate  Body considered that the 
Panel's above analysis in the context of Japan's claim 6 reviewed the requirements set out in 
Article  3.2, first sentence, as opposed to those under Article  3.5. The Appellate  Body found that in 
the absence of any specific requirements concerning the volume of dumped imports, Article  3.5 
could not have guided the Panel's assessment of whether the KTC adequately explained the decrease 
in the volume of imports from 2010 to 2012 in reaching its finding of a significant increase of the 
volume of dumped imports. The Appellate  Body found that in reviewing the causati on claim at issue, 
the Panel effectively incorporated the requirements in Article  3.2, first sentence, concerning the 
volume of dumped imports. Thus, the Appellate  Body found the Panel to have erred in its application 
of Article  3.5 of the Anti -Dumping Agr eement. The Appellate  Body, however, found that it did not 
consider Japan to have substantiated its "independent" claim that the KTC acted inconsistently with 
the requirements of Articles  3.1 and 3.5 of the Anti -Dumping Agreement by focusing solely on one 
of the years of the three -year period of investigation ( POI).  
3.4.4.3   Whether the Panel failed to consider price effects as an essential building block 
for any finding of causation  
Before the Panel, Japan advanced three grounds in support of its claim that t he KTC's analysis of 
the price effects of dumped imports "independently" undermined its causation determination, 
namely that: (i) there was a divergence between the trends in prices of dumped imports and 
domestic like product; (ii) dumped imports consisten tly and significantly oversold the domestic like 
product; and (iii) there was no competitive relationship between the dumped imports and the 
domestic like product,  such that their prices were not comparable. The Panel found that the KTC 
acted inconsistentl y with Articles  3.1 and 3.5 on the basis of the second and third grounds advanced 
by Japan.41 As for diverging price trends, the Panel rejected Japan's arguments.  
Japan appealed the Panel's findings on diverging price trends and contended that the Panel: 
(i) incorrectly viewed its findings about diverging price trends in isolation of its other findings about 
price comparability and price overselling; and (ii) incorrectly accepted allegations about the alleged 
fierce competition.  
The Appellate  Body noted t hat the Panel understood Japan to assert that the diverging price trends 
showed that there was no market interaction between the dumped imports and the domestic like 
product, and thus undermined the KTC's price suppression and price depression analyses, wh ich in 
turn formed the basis of the ultimate causation determination under Article  3.5. The Appellate  Body 
recalled that the Panel noted that the prices of the dumped imports and the domestic like product 
moved in generally the same direction from 2010 to 2011. However, from 2011 to 2012, the average 
price of dumped imports increased, while that of the domestic like product decreased. The Panel 
recognized that an increase in the price of the dumped imports might be expected to be accompanied 
by an increase in domestic prices. The Panel therefore considered that, in such a situation, it was 
 
41 Korea challenged these findings on appeal, which is detailed in section 3.4.4.6   below.  WT/AB/30  
 
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  expected of a reasonable investigating authority to explain why, nonetheless, it considers that the 
dumped imports affect the domestic like product prices.  
The Appellate  Body considered that the Panel's analysis reviewed the Korean investigating 
authorities' examination of the relationship  between the prices of the dumped imports and those of 
the domestic like products, in order to ascertain the effects of the former on th e latter. This, in the 
Appellate  Body's view, corresponded to an examination properly conducted pursuant to Article  3.2, 
second sentence. According to the Appellate  Body, the Panel's conclusion that the diverging price 
trends do not, in and of themselves, demonstrate that the KTC's determination of a causal 
relationship is inconsistent with Articles  3.1 and 3.5 was a mere consequence of its analysis as to 
whether the KTC's price effects analyses were objective and reasoned, and compatible with the 
requireme nts set out in Article  3.2, second sentence. The Appellate  Body explained that the Panel's 
analysis of the issue of diverging price trends was based on the applicable requirements under 
Article  3.2, rather than those concerning causation under Article  3.5, even though it was addressing 
a claim under the latter provision. In so doing, the Appellate  Body found the Panel to have effectively 
incorporated the requirements of Article  3.2, rather than applying properly the requirements set out 
in Article  3.5. Thus , the Appellate  Body found the Panel to have erred in its application of Article  3.5 
of the Anti -Dumping Agreement. The Appellate  Body, however, found that apart from arguing that 
the Panel's review of the KTC's examination of diverging price trends was no t properly done, Japan 
has not demonstrated why the KTC's examination contains flaws that vitiate its causation 
determination pursuant to the requirements set out in Articles  3.1 and 3.5.  
3.4.4.4   Whether the Panel failed to consider impact as an essential building  block for any 
finding of causation  
On appeal, Japan argued that the Panel's conclusion that the KTC need not establish a link between 
volume and price effects under Article  3.2 and the impact of the dumped imports on the domestic 
industry under Article  3.4 is wrong, and that the failure to establish this logical link undermined the 
KTC's causation finding.  
The Appellate  Body noted that Japan's claim rested on its argument that the KTC's failure to establish 
a "logical link" between its evaluation of cert ain factors having a bearing on the state of the domestic 
industry and its consideration of the volume of the dumped imports and the effect of the dumped 
imports on prices under Article  3.2 for the purposes of its impact analysis under Article  3.4 rendered  
its causation analysis inconsistent with Article  3.5. The Appellate  Body further recalled that the Panel 
explained that, while there may be some overlap between the consideration of the effect of the 
dumped imports on domestic prices under the second sent ence of Article  3.2 and the evaluation of 
"factors affecting domestic prices" under Article  3.4, this does not mean that, as Japan seems to 
suggest, "a flawed price effects analysis will necessarily preclude a proper examination of the impact 
of the dumped  imports on the domestic industry under Article  3.4." The Panel also rejected Japan's 
argument that, by failing to examine two factors set out in Article  3.4, the Korean investigating 
authorities acted inconsistently with Article  3.5.  
The Appellate  Body agreed with the Panel that, "in order to properly examine the impact of dumped 
imports on the domestic industry for purposes of Article  3.4, an investigating authority is not 
required to link that examination with its consideration of the volume and the pri ce effects of the 
dumped imports." However, the Appellate  Body found that the Panel's analysis rejecting Japan's 
position described above was ultimately based on its understanding of the relationship between the 
inquiries contemplated under Articles  3.2 an d 3.4. Similarly, the Appellate  Body saw no reason to 
disagree with the Panel's finding that there is no need "to undertake a fully reasoned causation and 
non-attribution analysis" as part of Article  3.4. Thus, the Appellate  Body did not consider Japan to 
have demonstrated an "independent" violation of Article  3.5 on the basis of its arguments that the 
Panel rejected.  
Nonetheless, the Appellate  Body considered that the Panel's above analyses indicated that the Panel 
reviewed Japan's arguments in light of t he requirement set out in Article  3.4 even though it was 
addressing a causation claim under Article  3.5. According to the Appellate  Body, the Panel's 
examination of the alleged flaws in the Korean investigating authorities' impact analysis primarily 
relate d to the issue of whether the KTC's impact examination was in line with the requirements set 
out in Article  3.4, as opposed to those under Article  3.5. In so doing, the Appellate  Body found the 
Panel to have effectively incorporated the requirements of Art icle 3.4, rather than properly applying WT/AB/30  
 
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  the requirements set out in Article  3.5. Thus, the Appellate  Body found the Panel to have erred in 
applying Article  3.5 of the Anti -Dumping Agreement.  
3.4.4.5   Whether the Panel erred under Article  11 of the DSU and Article  17.6 of the 
Anti-Dumping  Agreement by failing to consider Japan's rebuttal arguments on the issue 
of "reasonable sales price"  
On appeal, Japan contended that, in accepting the KTC's explanation for the diverging price trends 
based on the constraints imposed by the "so -called 'reasonable sales price'", the Panel ignored 
Japan's rebuttal arguments about this issue. In Japan's view, the Panel had an obligation to address 
Japan's rebuttal arguments.  
The Ap pellate  Body recalled that, in connect ion with Japan's claim under Articles  3.1 and 3.2 with 
respect to price effects, the Panel noted that "[t]he 'reasonable sales price' is a target domestic 
industry price constructed by the OTI ." The Panel further  noted that i n considering price suppression, 
"the KTC referred to the difference between the 'reasonable sales price' and the actual average 
domestic prices in the Final Resolution." However, because the Panel found that Japan's claim under 
Articles  3.1 and 3.2 with r espect to price effects was outside its terms of reference, it did not address 
Japan's argument that t he Korean investigating authorities never explained why the profit margins 
selected to construct the reasonable sales price were in fact a reasonable prox y for the prices that 
the Korean producers should have been able to charge as "reasonable sales prices". The 
Appellate  Body found that Japan's references to several paragraphs of the Panel  Report  in support 
of its argument were misplaced, because these par agraphs contain neither the Panel's findings, nor 
the parties' arguments, concerning the relevance of the "reasonable sales price" in the context of 
Japan's claim 6. Thus, the Appellate  Body rejected Japan's claim that the Panel erred under Article  11 
of the DSU and Article  17.6(i) of the Anti -Dumping  Agreement.  
3.4.4.6   Whether the Panel erred in its findings concerning price comparability and 
overselling when addressing Japan's claim 6 under Articles  3.1 and 3.5 of the 
Anti-Dumping  Agreement  
On appeal, Korea advan ced two main grounds, claiming that: (i) the Panel relieved Japan of its 
burden to demonstrate that the KTC failed to ensure price comparability and , instead, made the 
case for Japan; and (ii) the Panel imposed a price comparison requirement not found in A rticle 3.5 
of the Anti -Dumping  Agreement and that is more demanding than the standard under Article  3.2 of 
the Anti -Dumping  Agreement.  
The Appellate  Body recalled that Article  3.1 provides that a determination of injury shall be based 
on positive evidence and involve an objective examination of "the effect of the dumped imports on 
prices in the domestic market for like products". Article  3.2, second sentence, lists three price effects 
that are distinct from each other, in that, even if prices of the dumped imports do not significantly 
undercut those of the domestic like products, such imports may nevertheless have a 
price-depressing or -suppressing effect on domestic prices. Under Article  3.2, second sentence, an 
investigating authority therefore has a measu re of discretion in how it chooses to assess price 
effects. However, the Appellate  Body recalled its prior finding that "a failure to ensure price 
comparability" could not be considered to be consistent with the requirement under Article  3.1 that 
"a determ ination of injury be based on 'positive evidence' and involve an 'objective examination' of, 
inter alia , the effect of subject imports on the prices of domestic like products". According to the 
Appellate  Body, "if subject import and domestic prices were no t comparable, this would defeat the 
explanatory force that subject import prices might have for the depression or suppression of 
domestic prices." For this reason, the Appellate  Body stated that "[a]s soon as price comparisons 
are made, price comparability  necessarily arises as an issue." Thus, where an investigating authority 
fails to ensure price comparability in price comparisons between dumped imports and the domestic 
like product, this undermines its findings of price effects under Article  3.2, to the extent that it relies 
on such price comparisons.  
Turning to the first of Korea's arguments, the Appellate  Body noted that Korea's contentions are 
based on the premise that Japan's arguments before the Panel concerning price comparability were 
limited to Ja pan's view that there was a lack of competitive relationship, or substitutability, between 
the dumped imports and domestic like products. The Appellate  Body recalled that the Panel noted 
Japan's argument that, in its price effects analysis , the KTC failed to ensure price comparability WT/AB/30  
 
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  between specific products or product segments of the dumped imports and the domestic like product. 
The Appellate  Body further noted that Japan contended before the Panel that the KTC never 
explained in its reports how the conc lusions of price suppression and price depression were 
supported by the comparison between the prices of subject imports and the "high -end prices" of 
domestic like products. In so doing, the Appellate  Body found Japan to have made out a prima facie  
case re garding the requirement on the KTC to ensure price comparability in its price effects analysis 
under Article  3.2, second sentence. The Appellate  Body further found that, in light of Japan's 
argument that the KTC failed to conduct an objective examination o f the overall extent of price 
competition in reaching its price suppression and price depression findings, the Panel correctly 
considered that, to the extent an investigating authority's consideration of price suppression or price 
depression may involve co mparison of prices, the investigating authority must ensure that the prices 
being compared are properly comparable. However, the Appellate  Body explained that the Panel's 
analysis was more directly relevant in the context of Article  3.2, second sentence, r ather than 
Article  3.5. 
The Appellate  Body next turned to Korea's argument that the Panel erred in law by imposing a price 
comparison requirement not contained either under Article  3.2 or Article  3.5. The Appellate  Body 
noted that the Panel understood the Korean investigating authorities to have considered that 
individual cases of dumped import resale prices for some models that were lower than average 
domestic prices  and high -end domestic prices for corresponding models to certain customers  
(i.e. individua l instances of "underselling") led to price suppression and price depression of the 
domestic like product. The Appellate  Body recalled that the Panel set out in a table what Korea  
referred to as a series of comparisons between individual resale transaction  prices of two models of 
dumped imported valves and the average prices of corresponding models of the domestic like 
product reported by the OTI in its Final Report. This table underlined those transactions in which the 
dumped import price to certain custom ers was lower than the average domestic price for the 
corresponding model produced and sold by the Korean producers. The Panel found that the listed 
transactions "took place on different dates and involved different quantities". The Panel observed 
that, in  general, the lower the quantity involved in a transaction, the higher the unit price of the 
dumped imported valve(s). The Panel took the view that, in light of the possible effect on the 
comparisons made, an unbiased and reasonable investigating authority  could not have properly 
compared these individual transaction prices with the average domestic like product price of a 
corresponding model without further consideration and explanation of the relevance or significance 
of these differences.  
The Appellate  Body noted that the Korean investigating authorities conducted and relied on these 
price comparisons, including evidence of price discrimination and aggressive pricing behaviour, to 
make the point that, despite the higher average prices of the imported pro ducts, a finding of price 
suppression and price depression could nonetheless be sustained by the evidence . The KTC's 
transaction -to-average comparison analysis was thus aimed at assessing whether the prices of 
dumped imports were lower than the prices of d omestic like products for determining price effects 
within the meaning of Article  3.2, second sentence. Thus, in the Appellate  Body's view, price 
comparability became an important issue as the probative value of the comparison depended on the 
degree of price comparability and concerned the objectivity and evidentiary foundation of the 
KTC's  price suppression and price depression findi ngs under Articles  3.1 and 3.2 . The Appellate  Body 
agreed with the Panel that the KTC was required to ensure price comparability in these price 
comparisons inasmuch as it relied on the price differentials to find that dumped imports had 
price-suppressing a nd -depressing effects on domestic prices. However, the Appellate  Body found 
that the Panel's above analysis was pertinent to a claim under Article  3.2, and in line with the 
requirements of that provision, rather than to a claim under Article  3.5. 
The Appe llate Body next addressed Korea's argument that the Panel imposed a requirement to 
demonstrate how and to what extent underselling in certain competitive sales affected the prices of 
the domestic like product "as a whole" or "overall", and that such a requ irement has no basis in 
either Article  3.2 or Article  3.5. The Appellate  Body noted that, as the Panel found, the KTC relied 
on individual instances of "underselling" to address the argument by the interested parties that the 
consistent overselling by dump ed imports based on the average price undermined the findings of 
price suppression and price depression. The KTC reached the conclusion that these individual 
instances of "underselling" had the effect of suppressing and depressing the prices of domestic li ke 
product despite the overall overselling by the dumped imports. The Appellate  Body recalled that in 
assessing whether the KTC provided sufficient reasoning for the above conclusions, the Panel found 
that "it is not clear" that the KTC considered whether,  and if so how, the individual instances of WT/AB/30  
 
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  "underselling"  with respect to certain models affected "the prices of other models of the domestic 
like product, the extent of total domestic sales affected by such 'underselling', or how these instances 
of 'underselling'  affected domestic like product prices as a whole".  
The Appellate  Body explained that a lthough the Panel spoke of price suppression or price depression 
of the domestic like product "as a whole", it did not consider the Panel to have imposed a leg al 
requirement " to demonstrate how and to what extent underselling  in certain competitive sales 
affected the prices of the domestic like product 'as a whole'", as Korea argued. Rather, the 
Appellate  Body recalled that, i n response to Korea's argument that Panel Exhibit KOR -5742 
demonstrated how the KTC considered the extent to which the domestic like product prices were 
affected by individual instances of dumped imports' pricing, the Panel queried whether Panel Exhibit 
KOR-57, in conjunction with the OTI's Final Report and the KTC's Final Resolution, supported Korea's 
contention. The Appellate  Body considered that this was the context in which the Panel analysed 
Panel Exhibit KOR -57 and found that it does not show whether, and if so how, the 
Korean  investiga ting authorities examined the extent to which domestic like product prices were 
affected by the individual instances of lower dumped import prices, noting further that "this Exhibit 
does not identify the corresponding models of the domestic like product wh ose prices are being 
'undersold', or the quantity or value of the sales of those models." The Appellate  Body agreed with 
the Panel that without such information it was not clear how the Korean investigating authorities 
could have assessed the extent to whi ch domestic like product prices were affected by the pricing of 
the dumped imports in the selected transactions, such that a finding of price suppression and price 
depression could be reached.  
The Appellate  Body further found that the Panel did not err in  examining whether the KTC took into 
account the evidence of consistent price overselling and the relevant arguments raised by the 
interested parties, especially "in light of the consistent … overselling by the dumped imports and the 
fact that the average  prices of the models of dumped imports involved in these individual instances 
of 'underselling' were still higher than the average prices of the corresponding domestic models." 
Thus, the Appellate  Body saw no reason to disagree with the Panel that an explanation and analysis 
of how and to what extent the prices of the domestic like product were affected was necessary.  
However, the Appellate  Body found that the Panel's analysis was pertinent to a claim under 
Article  3.2, and in line with the requirements of that provision, rather than to a claim under 
Article  3.5. Thus, while the Appellate  Body did not find any error in the Panel's analysis insofar as it 
related to the applicable requirements set out in Article  3.2, the Panel, in the Appellate  Body's view, 
effectively incorporated and applied the requirements of Article  3.2, rather than properly applying 
the requirements set out in Article  3.5, even though it was reviewing a claim under the latter 
provisi on. Accordingly, the Appellate  Body found the Panel to have erred in its application of 
Article  3.5 of the Anti -Dumping Agreement. Nonetheless, as further described below, the 
Appellate  Body found that the Panel's findings regarding the KTC's price effects  analysis provided a 
sufficient basis for it to complete the analysis regarding Japan's claim under Articles 3.1 and 3.2, 
second sentence, of the Anti -Dumping Agreement.  
3.4.4.7   Whether the Panel failed to make an objective assessment of the matter under 
Article  11 of the DSU and Article  17.6 of the Anti -Dumping  Agreement  
On appeal, Korea raised several arguments under Article  11 of the DSU and Article  17.6(i) of the 
Anti -Dumping Agreement with respect to the Panel's substantive findings under Articles  3.1 and  3.5 
of the Anti -Dumping  Agreement concerning Japan's "independent" claim of causation. The 
Appellate  Body rejected these arguments, inter alia , on the grounds that: (i) Korea's claim under 
Article  11 of the DSU and Article  17.6(i) of the Anti -Dumping Agreement  is subsidiary to its claim 
concerning the Panel's failure to construe or apply correctly Articles  3.1 and  3.5; (ii)  Korea has failed 
to make out a case that the Panel engaged in a de novo  analysis in violation of Article  17.6(i) of the 
Anti-Dumping  Agreem ent; (iii) the Panel did not make internally inconsistent findings such that it 
acted inconsistently with Article  11 of the DSU; and (iv) Korea's argument essentially suggested that 
 
42 Panel Exhibit KOR -57 was submitted by Korea during the Panel proceedings, containing a list of 
comparisons, by the KTC, of the prices of all of the resale transactions of the Japanese respondent SMC  Korea 
during 2013 with the average and high -end prices of the corresponding m odels of the Korean domestic like 
product.  WT/AB/30  
 
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  the Panel should have accorded to Panel Exhibit KOR -57 the same evidentiar y weight that Korea 
itself would have accorded.  
3.4.4.8   Conclusion  
In light of the foregoing considerations, the Appellate  Body reversed the Panel's finding, in 
paragraph  8.4.a of the Panel  Report, that Japan had demonstrated that the Korean investigating 
author ities acted inconsistently with Articles  3.1 and 3.5 of the A nti -Dumping  Agreement  in their 
causation analysis  as a result of flaws in their analysis of the effect of the dumped imports on prices 
in the domestic market.  
3.4.5   Causation – Japan's claim 4  
On appeal, Japan contended that the Panel erred in dismissing Japan's arguments, in support of its 
claim 4, regarding volume correlation and price correlation, by simply citing earlier Panel findings 
on Japan's "independent" causation clai m. Japan averred that the lack of sufficient correlation – that 
domestic industry volume and price trends did not correlate well with the import volume and price 
trends and , therefore, called into doubt the existence of any causal relationship.  
The Appella te Body noted that with respect to the alleged lack of correlation in volume trends, the 
Panel noted that Japan contended that the existence of any causal relationship between the dumped 
imports and the alleged injury was undermined because: (i) the volume  and the market share of the 
dumped imports decreased from 2010 to 2012 (i.e.  during the first two years of the three -year 
period of trend analysis); and (ii) the domestic industry's market share remained stable in 2013 as 
compared with 2010. In the contex t of Japan's claim 6, the Panel reviewed and rejected these two 
identical arguments. On the basis of the same considerations, the Panel dismissed these arguments 
in the context of the present claim. The Appellate  Body recalled that in addressing Japan's vo lume-
related arguments in the context of claim 6, the Panel reviewed the requirements under Article  3.2, 
first sentence, as opposed to those under Article  3.5. The Appellate  Body noted that, in so doing, 
the Panel had effectively incorporated the requireme nts of Article  3.2, first sentence, rather than 
properly applying the requirements set out in Article  3.5. Given that the Panel relied on the same 
considerations in rejecting Japan's arguments concerning the lack of correlation in volume trends in 
the cont ext of the causation claim at issue (claim 4), the Appellate  Body found the Panel's finding in 
this regard to be in error.  
With respect to correlation in price trends, the Appellate  Body noted that, in the context of the 
present causation claim (claim 4), the Panel stated that Japan argued that the lack of parallelism 
between dumped import prices and domestic like product prices does not support the existence of a 
causal relationship between the dumped imports and the injury allegedly suffered by the domest ic 
industry. In particular, the Panel noted that Japan argued that:  (i) dumped import prices increased 
from 2011 to 2012 while domestic like product prices decreased; and (ii) dumped import prices fell 
sharply from 2012 to 2013 whereas domestic like produc t prices decreased only slightly. The Panel 
considered that Japan's arguments in support of this aspect of the causation claim at issue were 
identical to its price effects -related arguments under claim 6 which it had rejected. Based on the 
same considerati ons, the Panel concluded that, in the causation claim at issue (claim 4), Japan failed 
to establish that insufficient price correlation sufficed to demonstrate that a reasonable and unbiased 
investigating authority could not have properly found the require d causal relationship between the 
dumped imports and injury to the domestic industry in light of the facts and arguments that were 
before the KTC.  
The Appellate  Body recalled its finding that the Panel's analysis of the diverging trends in the context 
of Japan's claim 6 focused on whether there was a competitive relationship between dumped imports 
and domestic like products despite diverging price trends, and whether the diverging price trends 
could, in and of themselves, undermine the causal relationship under Article  3.5. The Appellate  Body 
further recalled that it had found that the Panel's analysis reviewed the Korean investigating 
authorities' examination of the relationship  between the prices of the dumped imports and those of 
the domestic like produc t, in order to ascertain the effects of the former on the latter, which 
corresponded to an examination properly conducted pursuant to Article  3.2, second sentence. The 
Appellate  Body noted that it had found that the Panel's analysis of the issue of divergi ng price trends 
was based on the applicable requirements under Article  3.2, rather than those concerning causation 
under Article  3.5, even though it was addressing a claim under the latter provision. Thus, given that WT/AB/30  
 
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  the Panel relied upon the same consider ations in rejecting Japan's arguments concerning the lack of 
correlation in price trends in the context of the causation claim at issue (claim 4), the Appellate  Body 
found the Panel's finding in this regard to be in error.  
Finally, concerning profit trends , on appeal, Japan contended that there was insufficient correlation 
in the trends regarding the domestic industry's condition to demonstrate a causal relationship. The 
Appellate  Body considered that Japan's argument appeared to mischaracterize the KTC's f indings. 
The KTC did not state that it found "increased" competition in 2012. Rather, as the Panel noted, the 
KTC acknowledged that the domestic industry's operating loss worsened from 2011 to 2012, at a 
time when dumped import prices increased and their v olume and market share declined. However, 
the Panel noted that the KTC explained that one of the reasons for the increased operating loss ratio 
was due to the increase of operating costs "in response to the competition with the dumped imports". 
The Appella te Body found that the Panel took into account these statements by the KTC in 
considering Japan's arguments, noting in particular that, according to the KTC, the worsening 
operating loss "was a result not only of the decrease in domestic like product price s … but also of 
the increase of operating costs". Thus, the Appellate  Body considered that neither the Panel nor the 
KTC ignored the alleged lack of correlation between the domestic industry profit, dumped import 
prices, and the volume and market share of the dumped imports. Consequently, the Appellate  Body 
did not find any error in the Panel's finding that Japan failed to establish that the insufficient 
correlation between dumped imports and trends in domestic industry profits demonstrates that a 
reasonabl e and unbiased investigating authority could not have properly found the required causal 
relationship between the dumped imports and injury to the domestic industry in light of the facts 
and arguments that were before the KTC.  
In light of the foregoing con siderations, the Appellate  Body upheld the Panel's finding that Japan 
had not demonstrated that the Korean investigating authorities acted inconsistently with Articles  3.1 
and 3.5 of the Anti -Dumping Agreement with respect to their conclusion that the dump ed imports, 
through the effects of dumping, were causing injury to the domestic industry, insofar as Japan's 
argument regarding insufficient correlation between dumped imports and trends in domestic industry 
profits was concerned.  
3.4.6   Whether the Appellate  Body can complete the analysis under Articles 3.1, 3.2, 
and 3.4 of the Anti -Dumping Agreement  
3.4.6.1   Whether the Korean investigating authorities acted inconsistently with 
Articles  3.1 and 3.2 of the Anti -Dumping Agreement in their consideration of the volume 
of dumped imports  
On appeal, Japan  contended that the part of the Panel  Report  titled "Relevant facts" sets forth all of 
the key facts needed to resolve this claim. Japan  argued that the KTC "improperly" found a 
"significant increase" in the dumped imports ev en though the volume of such imports actually fell in 
two out of three of the comparison periods, and increased slightly on an absolute basis and decreased 
on a relative basis over the POI.  
The Appell ate Body noted that certain arguments raised by Japan in  support of its claim under 
Articles  3.1 and 3.2 are identical to those addressed by the Panel in the context of claim  6. 
Specifically, like its argument in the context of claim 6, Japan focused on the alleged failure by the 
KTC to take into account the de crease of import volumes in absolute terms during the first two years 
of the POI, and the decrease of import volumes in relative terms, in finding that there was a 
"significant increase" in the volume of imports. The Appellate  Body further recalled that th e Panel's 
analysis of Japan's identical arguments in the context of claim 6 properly reviewed the requirements 
set out in Article  3.2, first sentence. In particular, the Appellate  Body considered that the Panel did 
not accept the KTC's findings on its face . Rather, the Panel critically examined the KTC's findings 
concerning the volume of dumped imports.  
However, the Appellate  Body considered that Japan's  arguments in the context of its present claim 
under Articles  3.1 and  3.2 concerning the volume of dumped imports encompassed broader 
considerations than those contained in the above findings by the Panel, namely that: (i) the KTC 
improperly assumed a comp etitive relationship between domestic products and subject imports; and 
(ii) the KTC improperly found a "significant increase" in subject imports without examining whether 
the increased imports actually replaced domestic like products through market compet ition. The WT/AB/30  
 
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  Appellate  Body found that the Panel did not sufficiently explore these issues with the parties in its 
analysis of the volume of dumped imports in the context of claim  6. Moreover, the Appellate  Body 
considered that the underlying factual bases p ertaining to these issues were contested between the 
parties.  Confronted with these circumstances, the Appellate  Body was of the view that completion 
of the legal analysis with respect to these issues was hindered by the absence of relevant factual 
finding s, sufficient undisputed facts in the panel record, as well as a sufficient exploration by the 
Panel.  
Consequently, the Appellate  Body found itself unable to complete the legal analysis as to whether 
the Korean measures are inconsistent with Articles  3.1 and 3.2 of the Anti -Dumping Agreement with 
respect to the Korean investigating authorities' consideration of the volume of dumped imports.  
3.4.6.2   Whether the Korean investigating authorities acted inconsistently with 
Articles  3.1 and 3.2 of the Anti -Dumping Agree ment in their consideration of price effects  
On appeal, Japan requested the Appellate  Body to complete the analysis and find that the Korean 
investigating  authorities failed to meet their obligations under Articles  3.1 and 3.2 of the 
Anti -Dumping Agreement  because: (i)  the KTC failed to ensure the price comparability; (ii)  the 
KTC failed to consider the implications of the overselling by the dumped imports; and (iii)  the 
KTC largely ignored the diverging price trends. Japan also contended that the KTC erred  in its 
findings because it failed to address the counterfactual question of how prices might have been 
different in the absence of dumping and the KTC never considered whether the alleged price 
depression and suppression were significant. Finally, Japan c ontended that the "reasonable sales 
price" analysis conducted by the KTC was "flawed and insufficient".  
With respect to price comparability and price overselling, the Appellate  Body noted that Japan raised 
identical arguments in the context of claim 6. The  Appellate  Body recalled that the Panel's analyses 
and findings with respect to these two issues, although made in the context of claim 6, were 
nonetheless in line with and properly conducted under the requirements set out in Article  3.2, 
second  sentence. The Appellate  Body noted that the Korean investigating authorities considered that 
individual cases of dumped import resale prices for some models that were lower than average 
domestic prices and high -end domestic prices for corresponding models to certain  customers  
(i.e. individual instances of "underselling") led to price suppression and price depression of the 
domestic like product. Price comparability thus became an important issue in the KTC's consideration 
of price effects since the KTC relied upon th e price differentials in these comparisons in finding that 
dumped imports had price -suppressing and -depressing effects on domestic prices. The Panel found 
that the transactions "took place on different dates and involved different quantities". The 
Appella te Body stated that the Panel rightly considered that an unbiased and reasonable 
investigating authority could not have properly compared these individual transaction prices with 
the average price of the corresponding model of the domestic like product wit hout further 
consideration and explanation of the "relevance or significance" of these differences.  
The Appellate  Body further recalled that the KTC relied upon the evidence regarding the individual 
instances of "underselling" in order to respond to the i nterested parties' arguments concerning the 
existence of price overselling based on the average prices of all the products. The Appellate  Body 
noted that the Panel examined the KTC's determination and, on that basis, understood the KTC to 
have found that the effects of these individual instances were on domestic like product prices as a 
whole, and not only on the prices of certain models of the domestic like product. The Panel , however , 
found that the explanation and analysis lacked  how and to what extent the prices of the domestic 
like product were affected. The Appellate  Body saw no reason to disagree with the Panel and 
considered that in ident ifying the price -suppressing and -depressing  effects of the dumped imports, 
it was incumbent upon the Korean investigating authorities to have provided an explanation and 
analysis of how and to what extent the prices of the domestic like product were affec ted in light of 
the consistent overselling by the dumped imports.  The Appellate  Body explained that t he flaws that 
the Panel identified concerned the objectivity and evidentiary foundation of the KTC's price 
suppression and price depression findings under Articles  3.1 and 3.2. Therefore, the Appellate  Body 
confirmed the Panel's finding that the Korean investigating authorities acted inconsistently with 
Articles  3.1 and 3.2 of the Anti -Dumping Agreement because they : (i) found price -suppressing and 
-depressi ng effects of dumped imports based on  the transaction -to-average price comparisons 
without ensuring price comparability; and (ii) failed  to provide an explanation and analysis of how 
and to what extent the prices of the domestic like product were affected in light of the consistent 
overselling by dumped imports.  WT/AB/30  
 
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  With respect to diverging price trends, the Appellate  Body noted that Japan raised an identical 
argument in the context of claim 6. The Appellate  Body considered that the Panel's findings, although  
made in the context of claim 6, properly reviewed the Korean investigating authorities' examination 
of the relationship  between the prices of the dumped imports and those of the domestic like product, 
in order to ascertain the effects of the former on the  latter. This, the Appellate  Body found, 
corresponded to an examination properly conducted pursuant to Article  3.2, second sentence. The 
Panel properly reviewed the Korean investigating authorities' consideration of the diverging price 
trends in light of t he requirements set out in Article  3.2, second sentence, and found it reasonable 
and supported by facts. Therefore, the Appellate  Body rejected Japan's allegation that the KTC 
"largely ignored" the diverging price trends, and found that the Korean investig ating authorities did 
not act inconsistently with Articles  3.1 and  3.2 of the Anti -Dumping Agreement with respect to their 
consideration of diverging price trends.  
With respect to Japan's arguments concerning (i)  the KTC's failure to address the counterfac tual 
question of how prices might have been different in the absence of dumping , (ii) the KTC's failure to 
address whether the alleged price depression and suppression were significant , and (iii)  whether the 
"reasonable sales price" analysis conducted by the KTC was "flawed and insufficient", the 
Appellate  Body noted that the Panel never explored these arguments with the parties. Moreover, the 
Appellate  Body noted that the parties disagree with respect to the factual bases underlying these 
arguments. Therefore, given the limited scope and nature of the Panel's factual findings and the 
limited undisputed record evidence in this regard, the Appellate  Body considered that its attempt to 
complete the legal analysis involving such competing argument s would require the Appellate  Body 
to review and consider evidence and arguments that were not sufficiently addressed by the Panel or 
sufficiently explored and developed before the Panel.  
Consequently, the Appellate  Body found that it was able to complete the legal analysis in part. For 
the reasons explained above, the Appellate  Body found that the Korean investigating authorities 
acted inconsistently with Articles  3.1 and 3.2 of the Anti -Dumping Agreement: (i)  to the extent that 
they found  price-suppressin g and -depressing effects of dumped imports based on the relevant price 
comparisons without ensuring price comparability ; and (ii)  in the absence of any explanation and 
analysis of how and to what extent the prices of the domestic like product were affecte d in light of 
the consistent overselling by dumped imports when finding price suppression and price depression . 
The Appellate  Body also found that  the Korean investigating authorities did not act inconsistently 
with Articles  3.1 and  3.2 of the Anti -Dumping  Agreement with respect to their consideration of 
diverging price trends. However, the Appellate  Body found itself unable to complete the legal 
analysis as to whether the Korean investigating authorities acted inconsistently with Articles  3.1 
and 3.2 on th e basis of Japan's arguments that: (i)  the KTC failed to address the counterfactual 
question of how prices might have been different in the absence of dumping; (ii)  the "reasonable 
sales price" analysis was flawed and insufficient, as the KTC failed to exa mine market interactions 
between the subject imports and domestic like products; and (iii)  the KTC never considered whether 
the alleged price depression and suppression were significant.  
3.4.6.3   Whether the Korean investigating authorities acted inconsistently wit h 
Articles  3.1 and 3.4 of the Anti -Dumping Agreement in their consideration of the impact 
of dumped imports on the state of the domestic industry  
On appeal, Japan advanced three arguments in support of its claim that the Korean investigating 
authorities ac ted inconsistently with Articles 3.1 and 3.4, namely that: (i)  the KTC did not establish 
any logical link between its findings regarding the volume and price effects under Article  3.2 and its 
finding of impact under Article  3.4; (ii)  the KTC "more generall y" failed to show any explanatory 
force from dumped imports regarding the trends related to the condition of the domestic industry; 
and (iii)  the KTC failed to adequately explain how imports had negatively impacted the domestic like 
products as a whole in light of positive trends experienced by the domestic industry.  
With respect to the first argument, the Appellate  Body recalled that in reviewing the Panel's finding 
in the context of claim 6, where Japan raised an identical argument, it had agreed with the  Panel 
that, in order to properly examine the impact of dumped imports on the domestic industry for 
purposes of Article  3.4, an investigating authority is not required to link that examination with its 
consideration of the volume and the price effects of t he dumped imports. Turning to the second 
argument, the Appellate  Body considered that Japan's argument appeared to suggest that the 
Korean investigating authorities were required to undertake a full -fledged causation  and 
non-attribution analysis in their examination under Article  3.4. The Appellate  Body noted that WT/AB/30  
 
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  several of Japan's arguments alleged that factors other  than the dumped imports were responsible 
for the state of the domestic industry. The Appellate  Body recalled that it had considered, in the 
context of claim 6, an identical legal question and found that  the demonstration that subject imports 
are causing i njury to the domestic industry is an analysis specifically mandated by Article  3.5, rather 
than Article  3.4.  
With respect to the third argument, the Appellate  Body recalled that, in the context of Japan's claim 
under Articles  3.1 and 3.4 of the Anti -Dumpi ng Agreement, the Panel found that Japan's claim 
concerning the state of the domestic industry was limited to the allegation that the KTC failed to 
evaluate two of the specific factors listed in Article  3.4, one of which was the ability to raise capital 
or investment. The Panel found that Japan failed to demonstrate that the KTC's evaluation of the 
investment and funding ability of the domestic industry was not one that a reasonable and objective 
investigating authority could make in light of the evidence a nd arguments before it. The 
Appellate  Body noted that Japan did not challenge on appeal this finding by the Panel. Accordingly, 
the Appellate  Body was unable to see the basis on which Japan requested it to complete the legal 
analysis and find that the Kore an investigating authorities acted inconsistently with Articles  3.1 
and 3.4 with respect to its argument concerning positive trends in investment , which stood 
addressed by the Panel and remained unappealed. The Appellate  Body further recalled that, in the 
context of Japan's claim 6 under Articles  3.1 and 3.5, the Panel addressed Japan's argument that 
the KTC failed to take into account positive trends during the period of trend analysis with respect 
to sales such that it "disproved" the existence of a causa l relationship between the dumped imports 
and the injury to the domestic industry. The Appellate  Body noted that Japan did not appeal these 
findings made by the Panel.  
That said, the Appellate  Body considered that Japan's argument in the context of its cl aim under 
Articles  3.1 and  3.4 encompassed broader considerations than those addressed in the above findings 
by the Panel. The Appellate  Body explained that not only did Japan make the argument about the 
positive trend experienced by domestic industry with  respect to domestic sales, but it also asserted 
that the KTC attached a high degree of importance to the other relevant factors  highlighting negative 
aspects of the domestic industry, while disregarding or downplaying those factors that showed 
positive tr ends. Thus, in the Appellate  Body's view, Japan's contention that, in so doing, the KTC 
acted inconsistently with Articles  3.1 and 3.4 would require the Appellate  Body to review the KTC's 
examination of, and the weight it attributed to, each of the factors  listed in Article  3.4. The 
Appellate  Body noted that the Panel did not have the occasion to engage with these arguments in 
the context of Japan's claim under Articles  3.1 and 3.4. The Appellate  Body considered that engaging 
in the completion exercise woul d require it to examine the relevance of each of the economic factors 
listed in Article  3.4 individually and conduct a collective assessment in order to review the 
consistency of the KTC's impact examination under Articles  3.1 and 3.4 regarding which the P anel 
made no findings. Consequently, the Appellate  Body found itself unable to complete the legal 
analysis as to whether the Korean investigating authorities acted inconsistently with Articles  3.1 
and 3.4 of the Anti -Dumping Agreement on the basis of Japan 's argument that the KTC failed to 
adequately explain how imports had negatively impacted the domestic like products as a whole in 
light of positive trends experienced by the domestic industry.  
3.4.7   Confidential treatment of information  
3.4.7.1   Whether the Panel erred in its interpretation or application of Article  6.5 of the 
Anti‑Dumping Agreement  
Korea maintained that the Panel erred in its interpretation of Article  6.5 of the Anti -Dumping 
Agreement "when considering that investigating authorities must make statements  in the record 
demonstrating that 'good cause' was assessed and found to exist for the confidential treatment of 
certain pieces  or categories of information". Korea argued that the Panel also erred in applying the 
law to the facts in finding that "[the] KTC failed to show that good cause was shown for certain 
pieces of evidence as there was no evidence on the record 'linking the i nformation for which 
confidential treatment was granted to the categories of confidential treatment identified in Korean 
law'."  
The Appellate  Body began by recalling the legal standard under Article  6.5 of the Anti ‑Dumping 
Agreement. It stated that, while interested parties must make a "good cause" showing that certain 
information should be treated as confidential, it is ultimately  for the investigating authority to WT/AB/30  
 
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  conduct an "objective assessment" of this issue to determine whether the request for confide ntial 
treatment has been sufficiently substantiated such that confidential treatment should be granted. 
Article  6.5 does not prescribe the particular steps that investigating authorities should take in order 
to assess and determine whether "good cause" has  been "shown". However, in the context of a 
WTO dispute settlement proceeding, a panel may be asked to examine a claim under Article  6.5 as 
to whether an investigating authority properly examined and determined that "good cause" had been 
shown in granting confidential treatment to certain information. To that end, an investigating 
authority is required to objectively assess whether the request for confidential treatment has been 
sufficiently substantiated such that "good cause" has been shown. The fact that  the investigating 
authority has conducted this objective assessment must be discernible  from its published report or 
related supporting documents.  
The Appellate  Body considered that, in articulating the legal standard under Article  6.5, the Panel 
did not pronounce on the specific manner in which investigating authorities should specify that "good 
cause" was shown when granting confidential treatment to certain information. In the 
Appellate  Body's view, the Panel's articulation comported with the legal sta ndard under Article  6.5. 
Consequently, the Appellate  Body rejected Korea's argument that the Panel committed legal error 
in its interpretation of Article  6.5 of the Anti ‑Dumping Agreement.  
With respect to the application of the law to the facts, Korea argu ed that the Panel erred because, 
under Article  6.5, the KTC was not obliged to make specific statements about each of the requests 
for confidentiality other than to satisfy itself that good cause was shown before treating the 
information in question as con fidential. The Appellate  Body disagreed with Korea to the extent it 
suggested that an investigating authority would comply with Article  6.5 in a situation where there is  
no indication  on the record establishing that such authority conducted an objective as sessment as 
to whether good cause was shown. Under Article  6.5, the fact that an investigating authority 
objectively assessed and determined that "good cause" was "shown" must be discernible  from its 
published report or related supporting documents. Withou t such indication, the Appellate  Body failed 
to see how a panel would be expected to review a claim under Article  6.5. 
Korea's claim that the Panel erred in finding an inconsistency with Article  6.5 was based on 
two related arguments regarding: (i)  the con duct of the interested parties in the underlying 
investigation; and  (ii) the role of the KTC. With respect to the showing of good cause by interested 
parties, Korea's position was that, in providing non -confidential summaries by way of deleting the 
relevan t information from their submissions, the providers of the information "implicitly" asserted 
that such deleted information fell within the categories of "confidential information" set forth in the 
relevant Korean laws. As a consequence of that "implicit" a ssertion, Korea argued, "good cause" was 
"shown" for granting confidential treatment to that information.  
The Appellate  Body noted that, under the relevant Korean  legislation, certain categories of 
information are entitled to confidential treatment in anti -dumping investigations (Article  15 of the 
Enforcement Rule of the Customs Act ). The Appellate  Body further observed that, while  the Panel 
did not see a "reason a priori  why a Member's legislation may not set out specific categories of 
information for which confidential treatment will normally be granted", it was ultimately not 
convinced that, in the present case, the existence of such a list sufficed to establish "good c ause" 
for the confidential treatment of the information at issue. Indeed, the Panel highlighted that "there 
[was] no indication on the record that, in granting confidential treatment, either the applicants 
specified, or the Korean Investigating Authorities  took into account, whether the information in 
question fell into any of those categories."  
In the Appellate  Body's view, the mere redaction of information does not establish, in and of itself, 
that such information falls within certain legal categories fo r confidential information, let alone that 
there is good cause for treating certain information as confidential. Thus, the Appellate  Body agreed 
with the Panel that a total absence of any indication in the underlying investigation as to how the 
information  redacted from the submissions related to the general categories of information set out 
in Korea's relevant legislation appeared insufficient to demonstrate the showing of good cause by 
the interested parties.  
With respect to the role played by the KTC, Korea contended that, when the KTC received such 
non-confidential summaries, it objectively assessed whether there was "good cause" by confirming 
whether the deleted information fell within a confidential information category set out in the relevant 
Korean legislation. The Appellate  Body noted that Korea had already presented this line of WT/AB/30  
 
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  argumentation before the Panel. However, the Panel was not convinced, given that it had found no 
supporting evidence on the record. In particular, the Panel pointed o ut that, "[w]hile such a 
procedure [by the KTC] may be sufficient to satisfy the requirements of Article  6.5, in the absence 
of anything in the submissions themselves, or evidence otherwise on the record, linking the 
information for which confidential trea tment was granted to the categories of confidential information 
identified in Korean law, [it could not] conclude that the Korean Investigating Authorities actually 
engaged in the asserted procedure."  
The Appellate  Body highlighted that, on appeal, Korea o ffered no arguments challenging the Panel's 
factual findings regarding the lack of support on the record for the proposition that the 
Korean  investigating authorities objectively assessed whether good cause had been "shown". Given 
those findings by the Pan el, the Appellate  Body stated that it was unable to agree with Korea's claim.  
For the foregoing reasons, the Appellate  Body found  that the Panel did not err in its interpretation 
or application of Article  6.5 of the Anti ‑Dumping Agreement. Consequently, t he Appellate  Body 
upheld the Panel's finding, in paragraphs  7.441, 7.451, and  8.4.b of the Panel  Report , that Japan 
demonstrated that the Korean investigating authorities acted inconsistently with Article  6.5 of the 
Anti‑Dumping  Agreement  with respect to t heir treatment of information provided by the applicants 
as confidential without requiring that good cause be shown.  
3.4.7.2   Whether the Panel erred in its application of Article  6.5.1 of the 
Anti‑Dumping  Agreement  
Korea argued that the Panel erred in its application of Article  6.5.1 by finding that the KTC failed to 
require the applicants to furnish non -confidential summaries of the information submitted in 
confidence. According  to Korea, the non -confidential summar ies submitted by the applicants were 
in sufficient detail to permit a reasonable understanding of the substance of the confidential 
information.  
The Appellate  Body noted that, under Article  6.5.1 of the Anti -Dumping Agreement, "[t]he 
authorities shall req uire interested parties providing confidential information to furnish 
non-confidential summaries thereof." With respect to the content of those summaries, Article  6.5.1 
elaborates that they "shall be in sufficient detail to permit a reasonable understandin g of the 
substance of the information submitted in confidence". Thus, for the Appellate Body, the central 
issue on appeal was whether the Panel committed legal error under Article  6.5.1 in finding that the 
Korean investigating authorities failed to require  that the parties submitting confidential information 
provide a "sufficient" non -confidential summary of the information at issue.  
As found  by the Panel, "the applicants filed 'Disclosed', or public, versions of at least three of their 
written submissions (the investigation application dated 23  December  2013, the summary of opinion 
from attorneys dated 23  October  2014, and the rebuttal opinion of applicants dated 
13 November  2014) from which certain information was redacted either by totally removing it or by 
replacing it with an  'X' or asterisks."  On appeal, Korea maintained that these three documents 
contain "non -confidential descriptive narratives … with respect to all confidential information", which 
"permitted a reasonable understanding of the substance  of the information and thus enabled 
interested parties to defend their interests".  
The Appellate Body noted that the Panel had rejected this view because " the 'Disclosed' versions of 
the three communications identified by Japan have entire sections from w hich information was 
removed." The Panel had also indicated that "[t]he information redacted from the submissions 
includes a significant amount of important data" and that "[t]here is no narrative in the 'Disclosed' 
version to summarize the specific inform ation deleted from the text." In light of the above 
considerations, the Panel found that, "[i]n the complete absence of data , and with no narrative 
summary  with respect to the deleted information, the 'Disclosed' versions of the 
three  communications identi fied by Japan cannot be said to contain a summary in sufficient detail 
to 'permit a reasonable understanding of the substance of the information submitted in confidence'."  
The Appellate Body indicated that, in the above passages, the Panel made findings of  fact with 
respect to the content of the documents that were treated as the "non -confidential summaries" in 
the underlying investigation. The Appellate Body highlighted that Korea did not challenge the Panel's 
appreciation of the facts under Article  11 of the DSU. Instead, Korea repeated certain arguments WT/AB/30  
 
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  that the Panel had already rejected without explaining why the Panel's analysis constituted a 
misapplication of Article  6.5.1. Thus, the Appellate Body failed to see how the "non -confidential 
summaries" at  issue could satisfy the legal standard of being "in sufficient detail to permit a 
reasonable understanding of the substance of the information submitted in confidence".  
The Appellate Body  then turned to address some additional argumentation by Korea. In particular, 
Korea argued that "non -confidential summaries are not required under Article  6.5.1 for every single 
figure and piece of data included in the parties' submissions, regardless of the relevant context." 
The Appellate Body was not convinced by this  argument because the Panel did not fault Korea under 
Article  6.5.1 for failing to disclose individual data points. Instead, the Panel's conclusion was based 
on the fact that the "non -confidential summaries" did not meet the legal standard under Article  6.5.1 
because there was a "complete absence of data" and "no narrative summary with respect to the 
deleted information".  
Korea also asserted that "Article  6.5.1 does not provide any instruction on the method and extent 
of preparing non -confidential summaries . Thus, investigating authorities are entitled [to] certain 
deference to a reasonable degree in accepting or rejecting non -confidential summaries." In the 
Appellate Body's view, regardless of the degree of deference that an investigating authority may 
enjoy under Article  6.5.1, it must comply with the obligation to require summaries that are "in 
sufficient detail to permit a reasonable understanding of the information submitted in confidence".  
Moreover,  Korea contended that there was neither a violation of due process rights of the interested 
parties nor a failure to provide interested parties with an opportunity to defend their interests. 
However, the Appellate Body noted that this argument by Korea had been correctly rejected by the 
Panel, inasmuch as a pa nel's inquiry into whether Article  6.5.1 has been breached does not include 
a separate analysis of whether the parties' due process rights have been violated.  
Finally, Korea argued that, " throughout the underlying investigation, [the] KTC analyzed and 
proactively disclosed the non -confidential summaries of the confidential information submitted by 
the interested parties." Before the Panel, Korea had presented a similar argument. The Panel was 
not convinced because "[t]he subsequent provision of a non -confidential summary by the 
investigating authority does not absolve  it of having failed to comply with Article  6.5.1 in the first 
instance." The Appellate Body agreed with the Panel. In the Appellate Body's view, under 
Article  6.5.1, the authorities bear the o bligation to require non -confidential summaries from the 
parties , and there appears to be no basis for the proposition that the authorities' obligation could be 
fulfilled through summaries provided by the authorities themselves.  
For the foregoing  reasons, the Appellate Body upheld the Panel's finding, in paragraphs 7.450, 7.451, 
and 8.4.c of the Panel  Report , that Japan demonstrated that the Korean investigating authorities 
acted inconsistently with Article  6.5.1 of the Anti‑Dumping  Agreement by failing to require that the 
submitting parties provide a sufficient non -confidential summary of the information for which 
confidential treatment was sought.  
3.4.8   Disclosure of essential facts – whether the Appellate Body can complete the 
analysis  
Having reverse d the Panel's finding that Japan's claim under Article  6.9 of the Anti -Dumping 
Agreement was outside its terms of reference, the Appellate Body turned to Japan's request for the 
completion of the legal analysis under this provision. Japan requested the App ellate Body to complete 
the analysis and find that Korea acted inconsistently with Article  6.9 due to the KTC's failure to 
disclose the "essential facts" before its "final determination". In Japan's view, the KTC failed to 
adequately disclose the "essentia l facts" in the following "key disclosure documents": the 
OTI's Preliminary Report, the KTC's Preliminary Resolution, and the OTI's Interim Report. According 
to Japan, the Korean investigating authorities failed to disclose 14 sets of "essential facts", wh ich 
were grouped into four main themes: price effects, volume of dumped imports, the state of the 
domestic industry, and causation.  
The Appellate Body began by noting that Article  6.9 sets out "the requirement to disclose, before a 
final determination is m ade, the essential facts under consideration which form the basis for the 
decision whether or not to apply definitive measures". Disclosing the essential facts under 
consideration "is paramount for ensuring the ability of the parties concerned to defend th eir WT/AB/30  
 
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  interests". With respect to the temporal aspect of the obligation under Article  6.9, the investigating 
authorities must disclose the essential facts under consideration "before a final determination is 
made", and "in sufficient time for the parties to defend their interests".  
In light of these considerations, the Appellate Body indicated that, in the present case, the 
application of the legal standard required determining, first, which is the "final determination" in the 
underlying investigation and, se cond, whether prior to such "final determination" the 
Korean  investigating authorities properly disclosed the "essential facts" under consideration in 
accordance with Article  6.9. 
In the present  case, the Appellate Body observed that the participants disag reed on which 
documents issued by the Korean investigating authorities constituted the "final determination" and 
which were the "disclosure" documents. On the one hand, Japan asserted that the "KTC's Final 
Resolution dated 20  January  2015 constituted the ' final determination' for purposes of Article  6.9, 
as it encompassed the conclusion of the investigation of dumping and injury ." Regarding the 
"disclosure" of essential facts, Japan argued that this was made in the following three documents 
issued prior to the KTC's Final Resolution: (i)  OTI's Preliminary Report dated 26  June 2014; (ii)  KTC's 
Preliminary Resolution dated  26 June 2014; and (iii)  OTI's Interim Report dated 23  October  2014. 
On the other hand, Korea maintained that "the 'final determination' wit hin the meaning of Article  6.9 
in the present case was the Final Decision of MOSF" to impose definitive duties issued on 
19 August  2015. Moreover, Korea submitted that the documents in which the "disclosure" of 
essential facts was made were (i)  KTC's Final  Resolution , and (ii) OTI's Final Report, both of which 
were issued prior to the MOSF's Final Decision to impose definitive duties. In light of these 
arguments, the Appellate Body highlighted that the participants disagreed as to when in the 
investigation the Korean investigating authorities reached the "final determination" within the 
meaning of Article  6.9. As a result, the participants also disagreed on which documents issued during 
the underlying investigation had to be examined for purposes of assessin g the "disclosure" of 
essential facts.  
Moreover, the Appellate Body highlighted that the question of whether the disclosure of "essential 
facts" was made through the documents alleged by Japan or those asserted by Korea encompassed 
a series of factual issu es, with respect to which the Panel made no findings, and certain legal issues 
that were left unexplored by the Panel. For instance, the Panel made no findings on whether, under 
Korean law, the underlying anti -dumping investigation was concluded on substan ce when the MOSF 
decided to impose definitive measures or, alternatively, whether the anti -dumping investigation at 
issue was concluded on substance when the KTC issued its Final Resolution.  
In light o f the above considerations, the Appellate Body consider ed that there were no Panel findings, 
undisputed facts on the record, or a sufficient exploration by the Panel of certain key issues, for the 
purpose of determining when the "final determination" within the meaning of Article  6.9 was reached 
in the investi gation at issue and which were the "disclosure" documents for purposes of Article  6.9. 
According to the Appellate Body, resolution of these issues was needed to determine whether Korea 
acted inconsistently with Article  6.9 by failing to disclose the releva nt "essential facts". 
Consequently, the Appellate Body found itself unable to complete the legal analysis with regard to 
Japan's claim that Korea acted inconsistently with Article  6.9 of the Anti ‑Dumping Agreement.  
3.5  Appellate  Body Report, Ukraine – Anti-Dum ping Measures on Ammonium Nitrate , 
WT/DS493/AB/R  
This dispute concerned certain anti -dumping measures imposed by Ukraine on ammonium nitrate 
from Russia. Anti -dumping duties were originally imposed by Ukraine's Intergovernmental 
Commission on International  Trade (ICIT) through a decision of 21  May 2008 (2008 original 
decision). Russian producer JSC MCC EuroChem (EuroChem), initially subject to an anti -dumping 
duty rate of 10.78%, successfully challenged the 2008 original decision before domestic courts in 
Ukraine. Following the Ukrainian court rulings, ICIT issued an amendment (2010 amendment) to 
the 2008 original decision (as amended, 2008 amended decision), reducing the anti -dumping duty 
rate for EuroChem to 0%. Following interim and expiry reviews conduct ed by the Ministry of 
Economic Development and Trade of Ukraine (MEDT), ICIT issued a decision (2014 extension 
decision), imposing anti -dumping duties at modified rates, including a duty of 36.03% on EuroChem.  WT/AB/30  
 
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  Before the P anel, Russia challenged Ukraine's measures under various provisions of the 
Anti-Dumping Agreement and raised a consequential claim under Article  VI of the GATT  1994. 
With respect to the Panel's terms of reference, the Panel found that: (i)  the 2008 amended decision 
and the 2010 amendment w ere within its terms of reference; (ii)  certain claims under Articles 5.8 
and 11.1 -11.3 of the Anti -Dumping Agreement, and certain claims under Article  6.8 and 
paragraphs  3, 5, and 6 of Annex II to the Anti ‑Dumping Agreement were within its terms of 
reference; and (iii)  certain claims under Articles 12.2 and 12.2.2 of the Anti ‑Dumping Agreement fell 
outside its terms of reference. The Panel considered moot Ukraine's request for a ruling that certain 
claims under Articles 3.1 and 3.4 of the Anti -Dumpin g Agreement fell outside its terms of reference.  
With respect to Russia's claims concerning dumping and likelihood -of-dumping determinations in the 
interim and expiry reviews, the Panel found that Ukraine acted inconsistently with: (i) Article  2.2.1.1 
of the Anti -Dumping Agreement because Ukrainian investigating authorities (ICIT and/or MEDT) had 
rejected the price of gas that the investigated Russian producers paid and reported in their records 
(reported gas cost) without providing an adequate basis to do so under the second condition in the 
first sentence of that provision; (ii)  Article  2.2 of the Anti -Dumping Agreement because, when 
constructing normal value, Ukrainian investigating authorities had used a cost for gas that did not 
reflect the cost of production "in the country of origin" (i.e.  Russia); (iii)  Article  2.2.1 of the 
Anti‑Dumping Agreement because, in conducting their ordinary -course -of-trade test, Ukrainian 
investigating authorities had relied on costs calculated incons istently with Article  2.2.1.1 of the 
Anti‑Dumping Agreement; and (iv) Articles 11.2 and 11.3 of the Anti ‑Dumping Agreement because 
Ukrainian investigating authorities had relied on dumping margins calculated inconsistently with 
Articles 2.2, 2.2.1, and 2.2 .1.1 of the Anti ‑Dumping Agreement to make their likelihood -of-dumping 
determinations. The Panel further found that Russia failed to establish that Ukraine acted 
inconsistently with Article  2.1 of the Anti -Dumping Agreement, and exercised judicial economy with 
regard to certain additional claims under Articles 2.2, 2.2.1.1, 2.4, and 11.1 of the Anti -Dumping 
Agreement.  
With respect to Russia's claims concerning the non -termination of the investigation against 
EuroChem, the Panel found that Ukraine acted inco nsistently with Article  5.8 of the Anti ‑Dumping 
Agreement because Ukrainian investigating authorities had: (i)  failed to exclude EuroChem from the 
scope of the original anti -dumping measures, specifically the 2008 amended decision; (ii) imposed 
a 0% anti -dumping duty on EuroChem through the 2010 amendment instead of excluding it from 
the scope of the anti -dumping investigation; and (iii)  included EuroChem within the scope of the 
review determinations and imposed anti -dumping duties on it through the 2014 ex tension decision. 
The Panel exercised judicial economy in relation to certain claims under Articles 11.1 through 11.3 
of the Anti ‑Dumping Agreement concerning the non -termination of the investigation against 
EuroChem. Moreover, the Panel found that Russia failed to establish certain inconsistencies with 
Articles  11.1-11.3 of the Anti -Dumping Agreement in connection with the investigating authorities' 
alleged determination of and reliance on injury not established in accordance with Articles 3.1 
and 3.4 of t he Anti -Dumping Agreement in making their likelihood of injury determination.  
With respect to Russia's claims challenging the investigating authorities' conduct in the interim and 
expiry reviews, the Panel found that Ukraine acted inconsistently with Artic le 6.9 of the 
Anti-Dumping Agreement because Ukrainian investigating authorities had failed to disclose certain 
essential facts and to give interested parties sufficient time to comment on MEDT's disclosure. The 
Panel further found that Russia failed to es tablish certain inconsistencies with Articles 6.2, 6.8, 6.9, 
and paragraphs 3, 5, and 6 of Annex II to the Anti ‑Dumping Agreement, and exercised judicial 
economy with regard to additional claims under Article  6.2 of the Anti -Dumping Agreement. 
Moreover, th e Panel found that Russia failed to establish that Ukraine acted inconsistently with 
Article  VI of the GATT  1994 as a consequence of alleged inconsistencies with the Anti ‑Dumping 
Agreement, and exercised judicial economy with respect to Russia's claims und er Articles  1 and 18.1 
of the Anti ‑Dumping Agreement.  WT/AB/30  
 
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  3.5.1   Claims under Articles 6.2, 7.1, and 11 of the DSU relating to the original 
investigation phase  
3.5.1.1   Article  6.2 of the DSU: whether the 2008 amended decision and the 2010 
amendment were identified as specif ic measures at issue in Russia's panel request  
On appeal, Ukraine claimed that the Panel erred in its analysis under Article  6.2 of the DSU in finding 
that the 2008 amended decision and the 2010 amendment were identified as "measures at issue" 
in Russia's panel request.  
The Appellate  Body began by recalling that a panel request governs a panel's terms of reference and 
fulfils a due process objective by notifying the respondent and third parties about the nature of the 
complainant's case and enabling them t o respond accordingly. Compliance with the requirements of 
Article  6.2 of the DSU must be determined on the face of the panel request, in light of attendant 
circumstances, and on a case -by-case basis. Panels must conduct an objective examination, 
scrutiniz ing carefully the panel request, read as a whole, and on the basis of the language used 
including any footnotes. The requirement under Article  6.2 of the DSU to identify the specific 
measures at issue is satisfied, so long as the measures at issue are disc ernible from the panel 
request.  
Next, the Appellate  Body reviewed the Panel's analysis, which relied on language in two portions of 
Russia's panel request: (i)  the opening paragraph, which indicated that Russia  had requested 
consultations regarding the int erim and expiry reviews, and noted in a footnote that those 
"anti-dumping measures" were imposed through a number of instruments, including the 2008 
original decision, as amended by the 2010 amendment, resulting in the 2008 amended decision; 
and (ii)  item number 1, which stated that Russia claimed violations under Article  5.8 and 
Articles  11.1-11.3 of the Anti ‑Dumping Agreement because of the alleged failure by Ukrainian 
authorities to exclude a certain Russian exporter from the "anti -dumping measures", ref erring in 
footnote to the 2010  decision as amending the 2008 original decision. The Panel considered that the 
references to the 2008 amended decision and 2010 amendment showed that Russia took issue in 
its panel request with the alleged failure to exclude EuroChem from the 2008 amended decision, 
and therefore sufficiently precisely identified the 2008 amended decision and 2010 amendment as 
measures at issue.  
The Appellate  Body considered that this matter related to Russia's claim under Article  5.8 of the 
Anti‑Dumping Agreement as to whether Ukrainian investigating authorities – following successful 
court challenges by EuroChem – were required to have excluded EuroChem from the anti -dumping 
proceedings instead of imposing a 0% anti -dumping duty. The process b y which the dumping margin 
assigned to EuroChem in the 2008 original decision was invalidated and a 0% anti -dumping duty 
imposed was through the 2010 amendment, which amended the 2008 original decision, resulting in 
the 2008 amended decision. The panel req uest referred in item number 1 to an allegation of 
inconsistency with Article  5.8 with respect to the "anti -dumping measures" at issue. To the 
Appellate  Body, the only proper way to understand the legal question as to whether EuroChem 
should have been excl uded from the subsequent interim and expiry reviews was to assess the basis 
for its non -exclusion at the time the 2008 amended decision and the 2010 amendment were issued. 
The Appellate  Body therefore understood the Panel to have read the panel request as having 
established a link – through the reference to "anti -dumping measures" and footnote references to 
the relevant decisions – between the challenged interim and expiry reviews and the underlying 
instruments that related to EuroChem's  status, including t he 2008 amended decision and the 
2010 amendment.  
Moreover, the Appellate  Body understood the Panel to have concluded that the basis for EuroChem's 
exclusion from the interim and expiry reviews was linked to the decision by Ukrainian courts to 
invalidate th e basis at that point for a dumping margin or an anti -dumping duty with respect to 
EuroChem, as reflected in the 2008 amended decision and the 2010  amendment. Therefore, the 
references to those two instruments, including in the footnote detailing the "anti -dumping measures" 
in item number 1, were sufficiently precise to identify the specific measures at issue within the 
meaning of Article  6.2 of the DSU.  
The Appellate  Body then addressed Ukraine's arguments concerning language used in footnotes or 
provided as background in a panel request. The Appellate  Body stated that while the location of WT/AB/30  
 
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  certain information in a panel request may have some relevance for understanding whether the 
measures at issue are discernible, location itself is unlikely to be disposi tive given the need to read 
the panel request as a whole. The Appellate  Body therefore disagreed with Ukraine's submission that 
footnotes must employ explicit language to identify measures at issue. The Appellate  Body also 
considered that whether backgroun d information can assist in the identification of measures at issue 
depends on the circumstances and facts of each case.  
Finally, the Appellate  Body noted that the 2014 extension decision, referred to in the opening 
paragraph of the panel request, itself r eferred to the 2008 amended decision and by implication the 
2010 amendment. Further, the Appellate  Body recalled the Panel's unchallenged analysis in relation 
to the second requirement of Article  6.2, to provide a brief summary of the legal basis of the cl aim 
sufficient to present the problem clearly. That analysis noted that the language in item number  1 of 
the panel request suggested Russia's challenge was twofold, namely that Ukraine: (i)  failed to 
exclude EuroChem from anti -dumping measures; and (ii)  subjected EuroChem to expiry and interim 
reviews. The panel request language, read in light of the footnotes, suggested that the first aspect 
of Russia's challenge concerned exclusion from the original anti -dumping investigation, and that the 
second aspect c oncerned the expiry and interim reviews.  
The Appellate  Body concluded that the language in Russia's panel request, including express 
references in footnotes, referred to the 2008 amended decision and the 2010 amendment, and 
sufficiently linked those measur es to Russia's claim under Article  5.8 of the Anti -Dumping 
Agreement. The Appellate  Body therefore agreed with the Panel's assessment that the 
2008 amended decision and the 2010 amendment were discernible and accordingly identified as 
specific measures at issue in Russia's panel request. Therefore, the Appellate  Body found the Panel 
did not err under Article  6.2 of the DSU because the 2008 amended decision and the 
2010 amendment were identified as specific measures at issue in Russia's panel request, and up held 
the Panel's finding in this respect.  
3.5.1.2   Articles 7.1 and 11 of the DSU: whether the Panel erred by ruling on Russia's claim 
under Article  5.8 of the Anti ‑Dumping Agreement with respect to the 2008 amended 
decision and the 2010 amendment  
Ukraine claimed t hat the Panel erred under Articles 7.1 and 11 of the DSU by ruling on Russia's 
claim under Article  5.8 of the Anti ‑Dumping Agreement with respect to the 2008 amended decision 
and the 2010  amendment, because such a claim was not made in Russia's panel reque st and 
therefore did not form part of the Panel's terms of reference. Ukraine considered that the Panel 
retroactively justified including this claim by referring to information provided by Russia subsequent 
to its panel request.  
The Appellate  Body recalled  that the measures and claims identified in a panel request in accordance 
with Article  6.2 of the DSU constitute the "matter referred to the DSB", which serves as a basis for 
the panel's terms of reference under Article  7.1 of the DSU. The Appellate  Body n oted its finding 
that Ukraine had not established that the Panel erred under Article  6.2 of the DSU in finding that the 
2008 amended decision and the 2010 amendment were identified as "measures at issue" in 
Russia's  panel request. Moreover, Ukraine did not  appeal the Panel's finding that Russia had 
provided, in accordance with Article  6.2 of the DSU, a brief summary of the legal basis for its claim 
under Article  5.8 of the Anti ‑Dumping Agreement as it relates to the 2008 amended decision and the 
2010 amendm ent. Further, Ukraine did not advance other grounds in support of its challenge under 
Articles  7.1 and 11 of the DSU, and confirmed that if the Appellate  Body were to uphold the Panel's 
finding that the 2008  amended decision and the 2010  amendment formed p art of the Panel's terms 
of reference, there would be no basis to entertain Ukraine's claims under Articles  7.1 and 11. The 
Appellate  Body thus found that the Panel did not err under Articles 7.1 and 11 of the DSU by ruling 
on Russia's claim under Article  5.8 of the Anti -Dumping Agreement as it relates to the 2008  amended 
decision and the 2010  amendment.  
3.5.2   Article  11 of the DSU: the authority of Ukrainian courts and investigating authorities 
to calculate dumping margins under Ukrainian law  
Ukraine claimed tha t the Panel acted inconsistently with Article  11 of the DSU by failing to examine 
properly the arguments and evidence it presented regarding the authority of Ukrainian courts and 
investigating authorities to calculate dumping margins under Ukrainian law. U kraine's claim WT/AB/30  
 
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  concerned the Panel's analysis regarding the second sentence of Article  5.8 of the Anti -Dumping 
Agreement, which requires immediate termination of an anti -dumping investigation, and therefore 
exclusion of a producer or exporter from the scop e of that investigation, where a de minimis  dumping 
margin has been determined for that producer or exporter. Ukraine principally maintained that the 
Panel failed to consider that neither Ukrainian investigating authorities nor Ukrainian courts 
recalculated, or in these circumstances had the compet ence to recalculate, EuroChem's dumping 
margin.  
The Appellate  Body examined the Panel's analysis, its reference to three Ukrainian court judgments 
and the 2010 amendment, and its conclusion that the "combined effect" of the Ukrainian court 
judgments and th eir implementation by the 2010 amendment was that the dumping margin for 
EuroChem in the original investigation phase was de minimis . The Appellate  Body understood the 
Panel to have considered that, irrespective of whether the relevant court judgments and the 2010 
amendment referred to a specific dumping margin, the outcome of these decisions was that there 
was, at that point, no basis for a dumping margin or an anti -dumping duty with respect to EuroChem, 
and that this therefore amounted to a determination of a de minimis  dumping margin. According to 
the Panel, the error that was identified by Ukrainian courts, which resulted in the Ukrainian court 
orders to reverse the 2008 original decision with respect to EuroChem, related to the improper 
allocation of di scounts by Ukrainian investigating authorities. The Panel further noted that this 
resulted in the District Court concluding that there was an "absence of dumping" by EuroChem and 
reaffirming that EuroChem's dumping margin had a "negative value/rate". Thus,  the Appellate  Body 
found that the Panel concluded that the Ukrainian court judgments and the 2010  amendment 
invalidated the basis at that point for a dumping margin or an anti -dumping duty with respect to 
EuroChem. It was on these grounds that the Panel f ound that the combined effect of the Ukrainian 
court judgments, and their implementation by ICIT's 2010  amendment, was that the dumping 
margin for EuroChem in the original investigation phase was de minimis . 
The Appellate  Body then considered Ukraine's arg ument that because Ukrainian courts are not 
competent to calculate dumping margins, they could not have calculated a dumping margin for 
EuroChem, and that neither Ukrainian courts nor investigating authorities calculated a dumping 
margin for EuroChem. At t he outset, the Appellate  Body noted that the Panel had referred to 
Ukraine's submission, and considered that Ukraine had changed its factual arguments on whether, 
as a matter of Ukrainian law, Ukrainian courts or investigating authorities have the competen ce to 
make dumping determinations and concluded that these arguments did not support Ukraine's 
position. The Appellate  Body did not regard the Panel as having sought to determine whether 
Ukrainian courts have the competence to, or in fact did, calculate du mping margins, or as having 
made such findings. Rather, the Appellate  Body understood the Panel to have concluded that by 
rejecting MEDT's application of discounts in calculating dumping margins for EuroChem in the 
2008 original decision, the Ukrainian cou rt rulings invalidated the basis at that point for a dumping 
margin or an anti -dumping duty with respect to EuroChem. The Appellate  Body did not see that the 
Panel took issue with Ukraine's submissions concerning the respective competence or actions of 
Ukrainian investigating authorities and courts regarding the calculation of dumping margins. 
Moreover, the Appellate  Body did not see how the fact that ICIT did not refer in the 2010 amended 
decision to a specific dumping margin was relevant to, or would have  altered, the Panel's analysis, 
as the Panel's reasoning did not turn on whether a specific dumping margin was set by Ukrainian 
courts and/or Ukrainian investigating authorities. The Appellate  Body also considered that Ukraine's 
arguments concerning ICIT's  authority to recalculate a dumping margin for EuroChem following the 
court judgments were not germane to the Panel's reasoning that the "combined effect" of the 
Ukrainian court judgments and the 2010  amendment was that there was no basis at that point for  
a dumping margin or an anti -dumping duty with respect to EuroChem.  
The Appellate  Body concluded that the Panel had provided a reasoned and coherent explanation in 
finding that the combined effect of the Ukrainian court judgments and the implementation by the 
2010 amendment was that the dumping margin for EuroChem in the original investigation phase 
was de minimis , triggering Ukraine's obligation under Article  5.8 of the Anti -Dumping Agreement to 
exclude EuroChem from the scope of the anti -dumping investiga tion. Therefore, the Appellate  Body 
found that the Panel had not acted inconsistently with Article  11 of the DSU. Consequently, the 
Appellate  Body found no reason to disturb the Panel's finding that the combined effect of the 
Ukrainian court judgments and the 2010 amendment meant that there was no basis at that point 
for a dumping margin or an anti -dumping duty with respect to EuroChem, and that this amounted 
to a de minimis  dumping margin determination under Article  5.8 which required Ukraine to 
immediatel y terminate and exclude EuroChem from the scope of the investigation. The WT/AB/30  
 
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  Appellate  Body therefore upheld the Panel's finding that Ukraine acted inconsistently with Article  5.8 
of the Anti -Dumping Agreement in relation to the 2008  amended decision, the 201 0 amendment, 
and the 2014  extension decision.  
3.5.3   Claims under Articles 2.2, 2.2.1, and 2.2.1.1 of the Anti ‑Dumping Agreement 
relating to MEDT's determinations of dumping in the interim and expiry reviews  
On appeal, Ukraine made claims of error under Articles 2.2, 2.2.1, and 2.2.1.1 of the Anti ‑Dumping 
Agreement with respect to MEDT's determinations of dumping in the interim and expiry reviews. 
Before addressing these claims, the Appellate  Body recalled that, in the interim and expiry reviews, 
MEDT rejected the  reported gas cost because the gas price in the domestic Russian market was not 
a market price as the State controlled this price, it was artificially lower than the export price of gas 
from Russia as well as the price of gas in other countries, and Gazpro m's gas prices were below its 
cost of production. Instead, MEDT used the price of gas exported from Russia at the German border, 
adjusted for transportation expenses (surrogate price of gas) in constructing the normal value of 
ammonium nitrate and in condu cting its ordinary -course -of-trade test.  
The Appellate  Body also made a number of general observations regarding Articles 2.2, 2.2.1, 
and 2.2.1.1 of the Anti ‑Dumping Agreement, noting that they form part of the disciplines concerning 
the determination of dumping.  
Regarding Article  2.2, the Appellate  Body observed that, while normal value is typically based on 
domestic sales prices, that provision identifies circumstances in which an investigating authority 
need not determine normal value on the basis of s uch domestic sales, namely: (i)  when there are 
no sales of the like product in the ordinary course of trade in the domestic market of the exporting 
country; and (ii)  when domestic sales do not permit a proper comparison, either because of the 
particular ma rket situation, or the low volume of the sales in the domestic market of the exporting 
country. Where such circumstances are present, the margin of dumping shall be determined by 
comparing the export price with: (i)  a comparable price of the like product w hen exported to an 
appropriate third country, provided that this price is representative; or (ii)  the cost of production in 
the country of origin plus a reasonable amount for administrative, selling , and general costs and for 
profits. With regard to the co nstruction of normal value, the Appellate  Body specified that the 
information or evidence used to determine the cost of production must be apt to yield or capable of 
yielding a cost of production "in the country of origin". An investigating authority must therefore 
ensure that the information it collects is used to arrive at the cost of production in the country of 
origin, which may require it to adapt that information.  
Regarding Article  2.2.1, the Appellate  Body observed that this provision sets out when s ales of the 
like product in the domestic market or to a third country may be treated as not being in the ordinary 
course of trade and disregarded in determining normal value.  
Finally, regarding Article  2.2.1.1, the Appellate  Body observed that the first s entence of this 
provision directs the investigating authority normally to base its calculations of costs on the records 
of the exporter or producer under investigation provided that such records: (i)  are in accordance 
with the generally accepted accounting  principles (GAAP) of the exporting country; and 
(ii) reasonably reflect the costs associated with the production and sale of the product under 
consideration. Given the reference to "normally" in the first sentence of Article  2.2.1.1, the 
Appellate  Body di d not exclude that there might be circumstances other than those in the 
two conditions, where the obligation to base the calculation of costs on the records kept by the 
exporter or producer under investigation does not apply. However, the Appellate  Body di d not 
consider it necessary to consider further whether there are indeed other circumstances in which that 
obligation would not apply and what these circumstances might be.  
Addressing specifically the second condition in the first sentence of Article  2.2.1.1, the 
Appellate  Body observed that it is the records of the individual exporter or producer under 
investigation that must reasonably reflect the costs associated with the production and sale of the 
product under consideration. The Appellate  Body added that there is no "reasonableness" standard 
under that condition governing the meaning of "costs" itself, which would allow investigating 
authorities to disregard domestic inpu t prices when such prices are lower than other prices 
internationally. Considering the words "reasonably reflect", "costs", and "associated with", the 
Appellate  Body considered that, under the second condition in the first sentence of Article  2.2.1.1, WT/AB/30  
 
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  there must be a genuine relationship between the costs reasonably reflected in the records of the 
exporter or producer under investigation, and the production and sale of the specific product under 
consideration. The Appellate  Body concluded that that second c ondition can be understood to refer 
to whether the records kept by the exporter or producer suitably and sufficiently correspond to or 
reproduce the costs incurred by the investigated exporter or producer that have a genuine 
relationship with the productio n and sale of the specific product under consideration. The 
Appellate  Body also emphasized that even where an investigating authority is justified under the 
first sentence of Article  2.2.1.1 in not calculating costs on the basis of the records kept by the 
exporter or producer under investigation, it remains subject to the disciplines set out in Article  2.2, 
including its relevant subparagraphs, regarding the construction of normal value.  
3.5.3.1   The second condition in the first sentence of Article  2.2.1.1 of the 
Anti-Dumping  Agreement: whether the Panel erred in finding that MEDT failed to provide 
an adequate basis for rejecting the reported gas cost  
Ukraine's claim on appeal under Article  2.2.1.1 of the Anti -Dumping  Agreement focused on the 
second condition in the  first sentence of that provision, namely, the condition that the records kept 
by the exporter or producer under investigation "reasonably reflect the costs associated with the 
production and sale of the product under consideration". Ukraine contended that , in finding that 
MEDT did not provide an adequate basis for rejecting the reported gas cost under the 
second  condition in the first sentence of Article  2.2.1.1, the Panel erred in its interpretation and 
application of that condition. Ukraine argued that t hese errors vitiated the Panel's findings under 
Article  2.2.1.1 as well as those under Article  2.2.1 of the Anti ‑Dumping Agreement.  
The Appellate  Body began by addressing Ukraine's argument that the panel and the Appellate  Body 
in EU – Biodiesel (Argentina ) recognized "non -arm's -length transactions" and "other practices" as 
exceptions under the second condition in the first sentence of Article  2.2.1.1, as these transactions 
or practices may affect the reliability of records. According to Ukraine, despite re ferring to the panel 
report in EU – Biodiesel (Argentina) , the Panel refused to consider whether the conditions in the 
domestic Russian market and the conditions of sales of gas met its definitions of non -arm's -length 
transactions or other practices.  
In that regard, the Appellate  Body observed that "non -arm's -length transactions" and "other 
practices" are not terms found in Article  2.2.1.1 or elsewhere in the Anti ‑Dumping Agreement; 
rather, it is the panel in EU – Biodiesel (Argentina)  that referred to "no n-arms-length transactions 
or other practices which may affect the reliability of the reported costs". While noting Ukraine's 
understanding of arm's -length transactions, the Appellate  Body did not read the panel or 
Appellate  Body reports in EU – Biodiesel (Argentina)  as having understood the second condition in 
the first sentence of Article  2.2.1.1 to contain open -ended "non -arm's -length transactions" or "other 
practices" "exceptions". The Appellate  Body thus agreed with the Panel that the question under th e 
second condition in the first sentence of Article  2.2.1.1 is whether the records of the exporter or 
producer under investigation reasonably reflect the costs associated with the production and sale of 
the product under consideration and that this questio n is to be assessed on a case -by-case basis, in 
light of the evidence before the investigating authority and its determination. Consequently, the 
Appellate  Body did not consider that the Panel erred in examining whether MEDT of Ukraine provided 
an adequate  basis to find that the records of the investigated Russian producers, insofar as the 
reported gas cost was concerned, did not reasonably reflect the costs associated with the production 
and sale of ammonium nitrate.  
Next, the Appellate  Body addressed Ukra ine's contention that the Panel erred because "the Panel 
seem[ed] to suggest that the records can only be deemed unreliable when the parties [to  input 
transactions] are affiliated." The Appellate  Body understood Ukraine to argue that the Panel 
appeared to have drawn a distinction between affiliated and non -affiliated parties to input 
transactions for the purposes of the second condition in the first sentence of Article  2.2.1.1. To 
Ukraine, however, the rationale for determining whether records are "unreliab le" under that 
condition is the dependent and uncommercial character of the relevant input transactions, and any 
legal affiliation between transacting parties is only an "indication that these practices may more 
easily occur". In support of its understandi ng of the second condition in the first sentence of 
Article  2.2.1.1, Ukraine referred to: (i)  several WTO disputes in which a panel or the Appellate  Body 
allegedly assessed whether transactions were at arm's length by considering whether commercial 
princip les had been respected or whether market prices were applied, instead of focusing on whether 
the parties to such transactions were affiliated; and (ii)  the second Ad  Note to Article  VI of WT/AB/30  
 
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  the GATT  1994 and Article  2.2 of the Anti -Dumping Agreement as relev ant context, which in its view 
confirms that the Anti -Dumping Agreement does not preclude the possibility that certain government 
practices may render prices "unreliable".  
In addressing these arguments by Ukraine, the Appellate  Body recalled that MEDT had found that 
the gas price in the domestic Russian market was not a market price as the State controlled this 
price, it was artificially lower than the export price of gas from Russia as well as the price of gas in 
other countries, and Gazprom's gas prices w ere below its cost of production.  
Regarding MEDT's consideration that, due to government regulation of gas prices in Russia, the costs 
incurred by the investigated Russian producers were lower than prices in other countries or export 
prices of gas from Rus sia, the Appellate  Body recalled that, to the extent costs are genuinely related 
to the production and sale of the product under consideration, there is no additional or abstract 
standard of "reasonableness" that governs the meaning of "costs" in the secon d condition in the 
first sentence of Article  2.2.1.1. Like the Panel, the Appellate  Body considered that the examination 
under the second condition in the first sentence of Article  2.2.1.1 is not one that pertains to whether 
the costs contained in the reco rds are not reasonable because, for instance, they are lower than 
those in other countries. Moreover, the Appellate  Body saw no reason to question the Panel's 
conclusion that MEDT's examination of the gas costs incurred by the investigated Russian producer s, 
as compared with prices in other countries or export prices of gas from Russia, pertained to whether 
the cost of gas incurred by these producers was reasonable, rather than to whether the records 
reasonably reflect the costs associated with the producti on and sale of ammonium nitrate.  
Regarding MEDT's consideration that Gazprom sells gas in the domestic Russian market below cost, 
the Appellate  Body observed that the Panel had made several key factual findings regarding 
MEDT's  determinations as set out in its "Investigation Report" issued in the interim and expiry 
reviews. Among other things, the Panel considered that: (i)  "there is nothing in [the Investigation 
Report] that shows that [Gazprom's below -cost domestic sales] affected the reliability of the  records 
of the investigated Russian producers, such that the records did not reasonably reflect the costs 
associated with production and sale of ammonium nitrate"; (ii)  there was no determination by MEDT 
that Gazprom was affiliated with the investigated R ussian producers and MEDT did not even consider 
who supplied these producers with gas; (iii)  "MEDT of Ukraine did not ask the investigated Russian 
producers the names of their gas suppliers" and "EuroChem had … suppliers" other than Gazprom; 
(iv) there was  nothing in the Investigation Report supporting the view that prices of other gas 
suppliers were affected by the prices of Gazprom; (v)  "[t]here is no reference to such suppliers of 
EuroChem in the Investigation Report, or any finding [by MEDT] that the re cords of the investigated 
Russian producers, insofar as they reflected the prices paid to these suppliers, were unreliable"; and 
(vi) "there is no correlation in MEDT of Ukraine's  findings [in the Investigation Report] between 
alleged below -cost sales by G azprom and the reliability of the records of the investigated Russian 
producers." These statements showed to the Appellate  Body that the Panel's analysis was tailored 
to the specific circumstances of this case, where no determination was made by MEDT that Gazprom 
was the gas supplier of the investigated Russian producers or that Gazprom's prices affected other 
gas suppliers' prices.  
The Appellate  Body acknowledged that the Panel did not limit its analysis to these factual findings; 
rather, the Panel went on  to state that Article  2 of the Anti -Dumping Agreement is concerned with 
the pricing behaviour of individual exporters and producers. The Panel added that a producer may 
source inputs used to produce the product under consideration from multiple unrelated suppliers 
and that the prices paid by the producer to these unrelated suppliers would form part of the costs 
that it incurs to produce the product under consideration. The Panel did not consider that "the 
investigated Russian producers' own records could b e said to be unreliable, or not reasonably reflect 
the costs associated with the production and sale of the product under investigation, because its 
unrelated suppliers' prices are government regulated, lower than the prices prevailing in other 
countries, or allegedly priced below their cost of production."  
According to the Appellate  Body, such references to "unrelated suppliers", read in isolation, could 
arguably be read to suggest that, in the Panel's view, records may not be disregarded under the 
first s entence of Article  2.2.1.1 on the sole basis that input prices are set by the government below 
cost of production when the producers or exporters of the product under investigation and the input 
suppliers are unrelated (but might be when these entities are  related). To the extent the 
Panel  Report suggests as much, the Appellate  Body expressed reservations regarding the relevance 
of drawing a distinction between related parties to input transactions, on the one hand, and unrelated WT/AB/30  
 
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  parties to such transaction s, on the other hand, for the inquiry under the first sentence of 
Article  2.2.1.1. The Appellate  Body considered that simply because parties to input transactions are 
considered to be unrelated does not mean that cost calculations should necessarily be bas ed on 
records kept by the exporter or producer under the first sentence of Article  2.2.1.1. In this context, 
the Appellate  Body recalled that, given the reference to "normally" in the first sentence of 
Article  2.2.1.1, it did not exclude that there might b e circumstances, other than those in the 
two conditions set out in that sentence, in which the obligation to base the calculation of costs on 
the records kept by the exporter or producer under investigation does not apply. However, to the 
extent the Panel' s statements regarding unrelated suppliers could be understood to have been made 
in the limited context of the second condition in the first sentence of Article  2.2.1.1, the 
Appellate  Body did not take issue with the Panel's proposition that the prices pai d by the producer 
to unrelated suppliers would form part of the costs that it incurs to produce the product under 
consideration.  
In any event, the factual findings on which the Panel relied indicated to the Appellate  Body that the 
Panel's analysis and conc lusion with respect to MEDT's view that Gazprom sells gas below cost were 
tailored to the specific facts and arguments before it. Given the Panel's case -specific approach and 
given that the Panel's conclusion relied on the absence of a determination by MED T that Gazprom 
was the gas supplier of the investigated Russian producers or that Gazprom's prices affected these 
suppliers' prices, the Appellate  Body saw no reason to find error with the Panel's conclusion that 
Gazprom's below -cost prices did not constit ute a sufficient factual basis for MEDT to conclude that 
the records did not reasonably reflect the costs associated with the production and sale of ammonium 
nitrate.  
Therefore, the Appellate  Body found that the Panel did not err in its interpretation or a pplication of 
the second condition in the first sentence of Article  2.2.1.1 of the Anti ‑Dumping Agreement. 
Consequently, the Appellate  Body upheld the Panel's finding that Ukraine acted inconsistently with 
Article  2.2.1.1 because MEDT did not provide an ad equate basis under the second condition in the 
first sentence of that provision to reject the reported gas cost.  
Having reached this finding, the Appellate  Body observed that Ukraine's claim under Article  2.2.1 of 
the Anti -Dumping Agreement was dependent o n reversing the Panel's finding of inconsistency with 
Article  2.2.1.1. As the Appellate  Body recalled, Ukraine challenged the Panel's finding that Ukraine 
acted inconsistently with Article  2.2.1 because, in conducting its ordinary -course -of-trade test, MED T 
relied on costs calculated inconsistently with Article  2.2.1.1. Specifically, Ukraine argued that the 
Panel's finding of inconsistency with Article  2.2.1 was vitiated by the Panel's errors of interpretation 
and application with respect to the second cond ition in the first sentence of Article  2.2.1.1. Given 
the consequential nature of Ukraine's appeal under Article  2.2.1, and having upheld the Panel's 
findings under Article  2.2.1.1, the Appellate  Body also upheld the Panel's finding that Ukraine acted 
inconsistently with Article  2.2.1 because, in conducting its ordinary -course -of-trade test, MEDT 
relied on costs calculated inconsistently with Article  2.2.1.1 of the Anti -Dumping Agreement.  
3.5.3.2   Article  2.2 of the Anti -Dumping Agreement: whether the Panel erred in  finding 
that MEDT failed to calculate the cost of production "in the country of origin"  
Ukraine claimed that the Panel erred in its interpretation and application of Article  2.2 of the 
Anti-Dumping  Agreement in finding that MEDT failed to calculate the c ost of production "in the 
country of origin" when constructing normal value for two investigated Russian producers of 
ammonium nitrate on the basis of the surrogate price of gas.  
The Appellate  Body began by recalling that, in addressing Russia's claims con cerning MEDT's gas 
cost calculations in constructing normal value in the interim and expiry reviews, the Panel assessed 
whether, having rejected the reported gas cost without providing an adequate basis to do so under 
that condition, MEDT failed to constru ct normal value on the basis of the cost of production in the 
country of origin within the meaning of Article  2.2 by using the surrogate price of gas. As the 
Appellate  Body recalled, the Panel considered that Article  2.2 does not preclude the possibility t hat 
an investigating authority may have to use out -of-country evidence to construct normal value, 
provided that such evidence is apt to yield or capable of yielding the cost of production in the country 
of origin. However, the Panel did not see any explana tion in the Investigation Report as to why 
adjustments for transportation expenses were adequate to adapt the "export price from Russia at 
the German border [] to reflect the cost of the investigated Russian producers in the country of 
origin". In these ci rcumstances, the Panel did not consider that the adjustment for transportation WT/AB/30  
 
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  expenses was sufficient to adapt the export price of gas from Russia at the German border to reflect 
the cost in Russia. The Panel then dismissed Ukraine's argument that MEDT co uld not use domestic 
gas prices in Russia because there was no undistorted domestic market for gas in Russia, relying on 
its earlier finding that MEDT had not provided a proper basis to reject the reported gas cost.  
The Appellate  Body considered that certa in of Ukraine's arguments concerning the Panel's 
interpretation and application of Article  2.2 depended on Ukraine's claim that the Panel erred in its 
interpretation and application of the second condition in the first sentence of Article  2.2.1.1. In 
particular, Ukraine drew on the Appellate  Body reports in EC – Fasteners (China) 
(Article  21.5 – China)  and US – Softwood Lumber  IV to argue that it would be circular and void of 
economic logic to calculate the cost of production under Article  2.2 on the basis of costs adequately 
rejected under the second condition in the first sentence of Article  2.2.1.1. To the Appellate  Body, 
this argument, while raised in relation to Article  2.2, assumed that MEDT provided an adequate basis 
to reject costs under the second c ondition in the first sentence of Article  2.2.1.1 and was thus 
dependent on finding error with the Panel's findings under Article  2.2.1.1. Having upheld the Panel's 
findings under Article  2.2.1.1, the Appellate  Body rejected Ukraine's arguments on appeal 
concerning Article  2.2, insofar as they were dependent on alleged errors by the Panel in its 
interpretation or application under Article  2.2.1.1 of the Anti ‑Dumping Agreement.  
The Appellate  Body then addressed Ukraine's arguments on appeal concerning the Pa nel's 
interpretation and application of Article  2.2 that Ukraine identified as not being dependent on it 
finding error with the Panel's interpretation or application of the second condition in the first sentence 
of Article  2.2.1.1.  
Starting with Ukraine's interpretative arguments, the Appellate  Body observed that Ukraine 
challenged the Panel's interpretation of Article  2.2 by relying on certain Appellate  Body findings with 
respect to Article  14(d) of the SCM  Agreement in US – Softwood Lumber IV . In that reg ard, the 
Appellate  Body recalled that Article  14(d) of the SCM  Agreement contains guidelines for the 
calculation of the amount of a subsidy in terms of the benefit to the recipient. In US – Softwood 
Lumber IV , the Appellate  Body stated that a government's role in providing a financial contribution, 
in terms of the provision of goods, may be so predominant that it effectively determines the price 
at which private suppliers sell the same or similar goods. In these circumstances, the comparison of 
the price at  which the government provides goods with the price at which private suppliers sell these 
goods in the domestic market could indicate a benefit that is artificially low, or even zero, such that 
the full extent of the subsidy would not be captured, thereby undermining the rights of Members 
under the SCM  Agreement to countervail subsidies. The Appellate  Body noted that although 
Article  2.2 of the Anti ‑Dumping Agreement and Article  14(d) of the SCM  Agreement have certain 
textual similarities (they refer respec tively to the cost of production "in the country of origin" and 
the adequacy of remuneration "in the country of provision"), Article  14(d) contains the phrase "in 
relation to prevailing market conditions", which is not found in Article  2.2. Moreover, these  two 
provisions do not serve the same function. The function of Article  14(d) is to ascertain the benefit 
conferred on the recipient of a subsidy by, inter alia, the governmental provision of goods and 
services, whereas Article  2.2 concerns the establishme nt of normal value when it cannot be 
determined on the basis of domestic sales. In light of these differences, the Appellate  Body 
considered that the Appellate  Body's findings with respect to Article  14(d) of the SCM  Agreement in 
US – Softwood Lumber  IV do not speak to the costs that may be used to construct normal value 
under Article  2.2 of the Anti -Dumping Agreement. The Appellate  Body thus concluded that the Panel 
did not err in its interpretation of Article  2.2 in considering that these Appellate  Body f indings were 
not relevant to its interpretative exercise.  
Next, the Appellate  Body considered Ukraine's claim that the Panel erred in its application of 
Article  2.2 in finding that adjusting the export price of gas from Russia at the German border by 
accou nting for transportation expenses was not sufficient to adapt the price to reflect prices in 
Russia. In that regard, Ukraine argued that none of the interested parties in the investigation had 
pointed to any differences in the market conditions in Russia ( other than that prices were fixed by 
the State) and market conditions relating to the export prices, which would have necessitated further 
adjustments to the export gas prices. Accordingly, Ukraine considered that MEDT could not be faulted 
for limiting its  adaptation to the gas export price to account for transportation expenses.  
The Appellate  Body recalled that the phrase "cost of production in the country of origin" indicates 
that whatever information or evidence is used to determine the "cost of producti on", it must be apt 
to yield or capable of yielding a cost of production "in the country of origin". Therefore, according to WT/AB/30  
 
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  the Appellate  Body, an investigating authority has to ensure that the information it collects is used 
to arrive at the "cost of pro duction in the country of origin" and compliance with this obligation may 
require the investigating authority to adapt that information.  
The Appellate  Body then recalled the Panel's consideration that there was no explanation by MEDT 
as to why adjustments for transportation expenses were adequate to adapt the export price from 
Russia at the German border to reflect the cost of the investigated Russian producers in the country 
of origin. The Appellate  Body also recalled that the Panel had relied on its earli er finding under the 
second condition in the first sentence of Article  2.2.1.1, a finding with which the Appellate  Body 
agreed. The Appellate  Body considered that other than pointing to the deduction of transportation 
expenses, Ukraine had not asserted tha t MEDT had otherwise adapted the export price of gas used 
in its calculations to reflect the cost of production in Russia. The Appellate  Body therefore saw no 
basis to question the Panel's conclusion that the adjustment for transportation expenses made by 
MEDT was not sufficient to adapt the export price from Russia to reflect the cost of production in the 
country of origin (i.e.  Russia). The Appellate  Body emphasized that it was mindful of the fact that, 
in the particular circumstances of this case, given that MEDT did not provide an adequate basis to 
reject the reported gas cost under the second condition in the first sentence of Article  2.2.1.1, there 
may not have been a basis to rely on costs other than those reflected in the records of the 
investigated producers.  
In light of the foregoing, the Appellate  Body found that the Panel did not err in its interpretation or 
application of Article  2.2 of the Anti -Dumping Agreement. Consequently, the Appellate  Body upheld 
the Panel's finding that Ukraine acted inco nsistently with that provision because MEDT failed to 
calculate the cost of production "in the country of origin".  
3.6  Appellate  Body Report, Morocco – Anti-Dumping Measures on Certain Hot -Rolled 
Steel from Turkey , WT/DS513/AB/R  
This dispute concerned the impo sition of definitive anti -dumping measures by Morocco on imports 
of certain hot -rolled steel products from Turkey, and certain aspects of the investigations and 
determinations underlying those measures. The Panel  Report in this dispute was circulated to 
WTO Members on 31  October  2018. The Panel found that Turkey had established that Morocco acted 
inconsistently with the following provisions of the Anti -Dumping Agreement: (i)  Article  5.10 by 
failing to conclude the investigation within the 18 -month time limi t; (ii)  Article  6.8 by rejecting the 
reported information and establishing the margins of dumping for the two investigated Turkish 
producers on the basis of facts available; (iii)  Article  6.9 by failing to inform all interested parties of 
the essential fac ts relating to its use of facts available to determine the margins of dumping; 
(iv) Article  3.1 in determining that the domestic industry was "unestablished"; (v)  Articles 3.1 
and 3.4 by improperly conducting the injury analysis in the form of "material re tardation of the 
establishment of the domestic industry"; and (vi)  Articles 3.1 and 3.4 by failing to evaluate five of 
the 15 injury factors listed in Article  3.4, disregarding the captive market in the injury analysis, and 
relying in the injury analysis o n a certain report without properly investigating the significance of 
inaccuracies in that report.  
Morocco appealed the Panel's interpretation and application of Articles  3.1, 3.4 , and 6.8 of the 
Anti-Dumping Agreement. Morocco also contended that the Panel erred in its findings under 
Article  4.4, and acted inconsistently with Article  11, of the DSU.  
In its letter of 4  December  2019, Morocco informed the Appellate  Body of its decision to withdraw 
the a ppeal, and requested the Appellate  Body to inform the DSB of this decision, pursuant to 
Rule 30(1) of the Working Procedures. Morocco further requested the Appellate  Body to reflect the 
reasons for Morocco's decision in the event the Appellate  Body issued a report. Specifically, Morocco 
stated that the anti -dumping measure underlying the dispute expired on 26  September  2019. 
According to Morocco, although it continues to believe that the Panel's findings suffer from serious 
flaws, those findings have become  moot with the expiration of the underlying measure. 
Consequently, and in light of the heavy workload of the Appellate  Body, Morocco stated that it had 
decided to withdraw the appeal. Upon receipt of the letter, the Appellate  Body promptly informed 
the Cha ir of the DSB of Morocco's decision to withdraw the appeal.  
On 4 December  2019, Turkey submitted a letter to the Appellate  Body, in which it noted Morocco's 
decision to withdraw the appeal and joined Morocco in requesting the Appellate  Body to notify the WT/AB/30  
 
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  DSB of Morocco's decision. In addition, Turkey noted that, on the previous occasion in which an 
appeal was withdrawn, i.e.  in India – Autos  (DS146 and DS175), the Appellate  Body issued a short 
report noting the withdrawal of the appeal. In that dispute, th e Appellate  Body Report, together with 
the Panel  Report, was subsequently adopted by the DSB. Turkey considered that the Appellate  Body 
should follow the same practice in the present dispute.  
The Report of the Appellate  Body describes the Panel's findings and summarizes the procedural 
history of the case. The Report does not address the substantive legal issues raised by Morocco in 
its appeal. The Report recalls the requirements of Articles 16.4 and 17.14 of the DSU regarding the 
adoption of panel and Appel late Body reports. The Report states that, in view of Morocco's 
withdrawal of the appeal by its letter of 4  December  2019, the Appellate  Body has completed its 
work in the appeal. The Report further states that the 30 -day period specified in Article  17.14 of the 
DSU for adopting the Appellate  Body Report, together with the Panel  Report, begins from the 
circulation of the Report.  
3.7  Appellate  Body Report, Russia – Measures Affecting the Importation of Railway 
Equipment and Parts Thereof , WT/DS499/AB/R  
This disp ute concerned measures taken by the Russian Federation (Russia) with respect to railway 
products from Ukraine. In particular, at issue in this dispute were decisions: (i)  to suspend 
conformity assessment certificates; (ii)  to reject applications for new co nformity certificates; and 
(iii) not to recognize conformity certificates issued by other member states of the Eurasian 
Economic  Union.  
In 2011, the Commission of the Customs Union of the Republic of Belarus, the Republic of 
Kazakhstan, and the Russian Fed eration approved a decision adopting CU  Technical Regulations 
setting safety and technical requirements for placing on the market certain railway products. The 
CU Technical Regulations entered into force in 2014 with a transitional period during which the 
conformity assessment certificates issued prior to the entry into force of the CU  Technical 
Regulations continue to be valid.  
Ukraine alleged before the Panel that, since 2014, Russia has systematically suspended the 
conformity assessment certificates issu ed to Ukrainian producers of railway products prior to the 
entry into force of the CU  Technical Regulations, and systematically rejected or returned without 
consideration applications submitted by Ukrainian producers of railway products to obtain 
new confo rmity assessment certificates based on the CU  Technical Regulations. In addition, Ukraine 
claimed that the conformity assessment certificates issued by the authorities in other CU  countries 
to Ukrainian producers of railway products have not been recognize d by Russia. Before the Panel, 
Ukraine claimed that:  
1. Russia acted inconsistently with Articles  I:1, XI:1, and XIII:1 of the GATT  1994 by 
systematically preventing Ukrainian railway products from being imported into Russia 
through suspension of valid certi ficates issued for railway products, refusal to issue new 
certificates for railway products, and non -recognition of certificates issued by other 
CU countries (systematic prevention – the first measure);  
2. Russia acted inconsistently with Articles  5.1.1, 5.1 .2, and 5.2.2 of the Agreement on 
Technical Barriers to Trade (TBT  Agreement) by suspending certificates and rejecting 
applications for new certificates with regard to Ukrainian producers of railway products 
(suspensions and rejections – the second measure ); and  
3. Russia acted inconsistently with Articles  2.1, 5.1.1, and 5.1.2 of the TBT  Agreement, and 
Articles  I:1, III:4, and X:3(a) of the GATT  1994 by not recognizing certificates issued 
under CU Technical Regulation 001/2011 to Ukrainian suppliers of railw ay products in 
other CU countries (non -recognition of certificates – the third measure).  
Russia disputed all of Ukraine's claims before the Panel. In addition, Russia requested a preliminary 
ruling from the Panel, alleging that Ukraine's request for the es tablishment of a panel (panel request) 
fell short of the requirements of Article  6.2 of the DSU.  WT/AB/30  
 
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  3.7.1   Panel  Report  
In the Panel  Report, the Panel made the following findings that were relevant to this appeal:  
1. in respect of Russia's request for a preliminary ru ling, the Panel found that Russia had 
failed to establish that Ukraine's panel request was inconsistent with Article  6.2 of the 
DSU; 
2. in respect of the instructions suspending certificates (the first measure):  
i. Ukraine had failed to establish, in respect of each of the 14 instructions at issue, 
that Russia had acted inconsistently with its obligations under Article  5.1.1 of the 
TBT Agreement;  and  
ii. Ukraine had failed to establish, in respect of each of the 14 instructions at issue, 
that Russia had acted incons istently with its obligations under Article  5.1.2, 
first and second sentences, of the TBT  Agreement;  
3. in respect of the decisions rejecting applications for certificates (the second measure):  
i. Ukraine had failed to establish, in respect of the two decisions through which the 
Russian Federal Budgetary Organization (FBO) "returned without consideration" 
applications for certificates submitted by Ukrainian producers under CU Technical 
Regulation 001/2011, and in respect of the decision through which the FBO 
"annulled" applications for certificates submitted by a Ukrainian producer under 
CU Technical Regulation 003/2011, that Russia had acted inconsistently with its 
obligations under Article  5.1.1 of the TBT  Agreement;  and 
ii. Ukraine had failed to establish, in respe ct of both decisions through which the 
FBO "returned without consideration" applications for certificates submitted by a 
Ukrainian producer under CU Technical Regulation 001/2011 (decision  1 insofar 
as it relates to one of the products covered by applicati on A3 and application  A4, 
and decision  2), and in respect of the decision through which the FBO "annulled" 
applications for certificates submitted by a Ukrainian producer under CU  Technical 
Regulation  003/2011, that Russia had acted inconsistently with its  obligations 
under Article  5.1.2, first and second sentences, of the TBT  Agreement;  
4. in respect of the non -recognition of certificates issued in CU countries other than Russia 
(the third measure):  
i. the non -recognition requirement is properly before the Panel;  
ii. Ukraine had established that Russia had acted inconsistently with Article  I:1 of 
the GATT  1994;  and 
iii. Ukraine had established that Russia had acted inconsistently with Article  III:4 of 
the GATT  1994; and  
5. in respect of the systematic import prevention (the fourth measure), Ukraine had failed to 
establish its claims of inconsistency with Articles  I:1, XI:1, and XIII:1 of the GATT  1994, 
because it did not demonstrate the existence of the systematic import prevention.  
In addition, the Panel made a number o f findings that were not appealed. In particular: (i)  with 
respect to 13 out of 14 instructions suspending certificates, the Panel found that Ukraine had 
established that Russia had acted inconsistently with Article  5.2.2, third obligation, of the 
TBT Agreement; (ii)  with respect to one out of three decisions rejecting applications for certificates 
(decision  1 insofar as it relates to applications  A1 and A2 and one of the products covered by 
application  A3), the Panel found that Ukraine had established that  Russia had acted inconsistently 
with Article  5.1.2, first and second sentences, of the TBT  Agreement; (iii)  with respect to all 
three  decisions rejecting applications for certificates at issue, the Panel found that Ukraine had failed 
to establish that Rus sia had acted inconsistently with Article  5.2.2, second obligation, of the WT/AB/30  
 
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  TBT Agreement; (iv)  with respect to two out of three decisions rejecting applications for certificates 
at issue, the Panel found that Ukraine had established that Russia had acted i nconsistently with 
Article  5.2.2, third obligation, of the TBT  Agreement; (v)  with respect to the non -recognition of 
certificates issued in CU countries other than Russia, the Panel found that Ukraine had failed to 
establish that Russia had acted inconsistently with Article  2.1 of the TBT  Agreement; and (vi)  with 
respect to the non -recognition of certificates issued in CU countries other than Russia, the Panel 
made no findings regarding Ukraine's claims under Articles  5.1.1 and  5.1.2 of the TBT  Agreement, 
and Article  X:3(a) of the GATT  1994.  
3.7.2   Appellate  Body Report  
On appeal, Ukraine claimed that the Panel erred: (i) in its analysis relating to the existence of a 
"comparable situation" under Article  5.1.1 of the TBT  Agreement and in finding that Ukrai ne failed 
to establish that Russia acted inconsistently with its obligations under Article  5.1.1 with respect to 
the instructions suspending certificates and the decisions rejecting applications for certificates; (ii)  in 
finding that Ukraine failed to esta blish that the proposed less trade -restrictive alternatives were 
reasonably available, and that Russia acted inconsistently with its obligations under Article  5.1.2 of 
the TBT  Agreement with respect to the instructions suspending certificates and the decis ions 
rejecting applications for certificates; and (iii) in its assessment of the existence of a systematic 
import prevention in relation with Ukraine's claims under Articles  I:1, XI:1, and XIII:1 of the 
GATT  1994.  
Russia, for its part, claimed on appeal th at the Panel erred by: (i)  finding that Russia has failed to 
establish that Ukraine's panel request is not consistent with Article  6.2 of the DSU; (ii)  finding that 
Russia has failed to establish that the third measure, non -recognition of certificates, was  not within 
the Panel's terms of reference; (iii)  making findings with respect to an element related to the 
third measure that the Panel found to be outside its terms of reference; (iv)  relieving Ukraine from 
the burden of establishing a prima facie  case t hat the third measure exists as a single measure; and 
(v) finding that the third measure exists by finding that the "general" non -recognition requirement 
flows from the CU  Technical Regulations.  
3.7.2.1   Russia's claims regarding the Panel's preliminary ruling  
Russia claimed that the Panel erred in finding in its preliminary ruling that Russia had failed to 
establish that Ukraine's panel request was inconsistent with Article  6.2 of the DSU in two respects: 
(i) in that it properly linked the measures at issue with th e legal basis of its complaint; and (ii) in 
that it properly identified the third measure at issue.  
With respect to the linkages between the measures at issue and the legal basis of the complaint, 
Russia took issue with the Panel's use of "weak auxiliary verbs", such as " could  relate" or " could  
concern", and asserted that this language revealed that the linkages between the measures and the 
legal obligations were not as clear as the Panel found. The Appellate  Body did not agree with Russia 
and instead foun d that the Panel statements identified by Russia in connection with this argument 
represented intermediate steps in the Panel's reasoning that, in connection with other elements of 
the Panel's analysis, provided the basis for the Panel's conclusion concern ing linkages between the 
measures challenged by Ukraine and the WTO  provisions allegedly infringed. In addition, Russia 
argued that the Panel had erred in failing to recognize similarities in the deficiencies of the panel 
requests in the present case and i n China – Raw Materials . The Appellate  Body found that the Panel 
had properly engaged with the same argument raised by Russia before the Panel and had provided 
a detailed explanation of why it did not see sufficient similarities between the panel requests in the 
present case and the panel requests in China – Raw Materials . 
With respect to the identification of the third measure in Ukraine's panel request, Russia alleged that 
the Panel had failed to review the description of the third measure in the panel re quest "on its face". 
The Appellate  Body recalled that, in order to determine whether a panel request complies with 
Article  6.2 of the DSU, a panel must carefully scrutinize the request, read as a whole . The 
Appellate  Body considered that Russia's proposed reading of the panel request would not take 
account of certain parts of the panel request and that such a reading would thus not constitute a 
reading as a whole . The Appellate  Body considered that, in the present case, the Panel assessed the 
panel request and the third measure in keeping with the standards of Article  6.2 of the DSU. In 
addition, Russia argued that the third measure identified by Ukraine consisted of a complex legal WT/AB/30  
 
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  instrument, and that Ukraine was required to specify particular parts of tha t legal instrument that it 
wished to challenge before the Panel. The Appellate  Body noted that the Panel had engaged with 
Russia's argument but found that Ukraine's panel request identified the measure at issue and that 
it did so with sufficient clarity to  allow a reader to discern the measure.  
In sum, therefore, the Appellate  Body found that Russia had not established that the Panel erred in 
determining the scope of its terms of reference in this dispute.  
3.7.2.2   Russia's claims concerning the Panel's findings re lating to the third measure  
3.7.2.2.1   Russia's claim that the Panel erred in finding the existence of the third measure  
Russia claimed that the Panel failed to conduct an objective assessment pursuant to Article  11 of 
the DSU in finding that the third measure, descr ibed as a general  non-recognition requirement which 
the Russian authorities considered to flow from  CU Technical Regulation 001/2011, had been 
demonstrated to exist. Russia asserted that the third measure as found by the Panel did not exist, 
because the al leged non -recognition requirement was not general in nature and did not flow from 
CU Technical Regulation 001/2011.  
Specifically, Russia argued that the text of CU  Technical Regulation 001/2011 is origin neutral and 
that, under the Treaty on the Eurasian E conomic Union (EAEU Treaty), products subject to 
CU technical regulations must be put into circulation within the CU without additional requirements. 
Russia also argued that, to the extent that the Russian authorities at issue interpreted CU  Technical 
Regulation 001/003 and concluded that the non -recognition requirement flowed from that 
regulation, these authorities were not competent to interpret CU  Technical Regulation 001/2011. 
With respect to these arguments, the Appellate  Body recalled that the third m easure was not 
CU Technical Regulation 001/2011 as such, but it was the alleged decision  by the Russian authorities 
that they will not recognize the validity of certificates issued for Ukrainian railway products by 
certification bodies in other CU countrie s unless the products were manufactured within the CU. The 
Appellate  Body did not see merit in Russia's arguments, relating to the meaning of CU  Technical 
Regulation 001/2011 as such, for determining whether the Panel erred in its analysis of whether the 
third measure as described by Ukraine existed. Russia also relied on the fact that its authorities had 
issued  certificates concerning products produced outside the CU under CU  Technical 
Regulation  001/2011 to argue that a general non -recognition requirement  flowing from CU  Technical 
Regulation 001/2011 did not exist. The Appellate  Body recalled that the third measure concerned 
only the non-recognition  by Russia of certificates already issued to Ukrainian producers under 
CU Technical Regulation 001/2011 in ot her CU  countries and thus saw no merit in this argument. In 
sum, the Appellate  Body found that Russia had not established that the Panel acted inconsistently 
with Article  11 of the DSU in finding that the third measure was general in nature and flowed from  
CU Technical Regulation 001/2011. Thus, the Appellate  Body upheld the Panel's finding that the 
third measure had been demonstrated to exist.  
3.7.2.2.2   Russia's claim that the Panel erred by relieving Ukraine from the necessity of 
establishing a prima facie  case th at the third measure exists as a single measure  
Russia claimed that the Panel erred under Article  11 of the DSU by relieving Ukraine of the burden 
to make a prima facie  case with respect to the existence of a single measure composed of several 
different in struments. Russia argued that different documents identified in Ukraine's panel request 
with respect to the third measure have different legal force and scope of application. In Russia's 
view, Ukraine failed to explain how these different instruments opera ted together as a 
single  measure. The Appellate  Body recalled that Article  11 of the DSU requires a panel to identify 
a measure by thoroughly scrutinizing it, although exactly what is required varies depending on the 
circumstances of each case. In the pres ent case, the Appellate  Body noted that the Panel assessed 
the relationships and interactions among the different instruments submitted by Ukraine and 
confirmed that the third measure existed as a single measure. Accordingly, the Appellate  Body found 
that Russia failed to establish that the Panel relieved Ukraine of its duty to establish a prima  facie 
case that the third measure existed as a single measure.  WT/AB/30  
 
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  3.7.2.2.3   Russia's claim that the Panel erred in finding that the third measure was within 
its terms of referen ce 
Russia claimed that the Panel erred under Articles  6.2 and 7.1 of the DSU by finding that the 
third measure is within the Panel's terms of reference. In Russia's view, the third measure identified 
in Ukraine's panel request consisted of CU  Technical Reg ulation 001/2011, as such, which was 
different from the third measure described by Ukraine and the Panel in the written submissions and 
the Panel  Report, respectively. Russia contended that, as a consequence, the Panel assessed a 
measure that was not withi n its terms of reference and therefore acted inconsistently with Article  11 
of the DSU. The Appellate  Body noted that Russia's claim in this regard was based on the premise 
that the Panel erred in its identification of the third measure from Ukraine's pane l request. Having 
rejected this premise already in addressing Russia's claim regarding the Panel's preliminary ruling, 
the Appellate  Body upheld the Panel's finding that the third measure was within its terms of 
reference.  
3.7.2.2.4   Russia's claim that the Panel err ed by continuing to make findings with respect 
to the alleged registration condition  
Russia claimed that the Panel acted inconsistently with Article  11 of the DSU by making findings with 
respect to a measure that was not within its terms of reference. Spec ifically, Russia argued that the 
Panel made findings regarding the alleged "registration condition" after having concluded that this 
measure was not within its terms of reference. The Appellate  Body recalled that in past cases it had 
clarified that panels do not exceed their terms of reference when making purely descriptive 
comments that do not constitute legal findings or conclusions. In the present case, the 
Appellate  Body found that the Panel's statements at issue were either merely descriptive statement s 
or concerned, properly, the third measure. Accordingly, the Appellate  Body found that Russia had 
failed to establish that the Panel acted inconsistently with Article  11 of the DSU.  
3.7.2.3   Ukraine's claim under Article  5.1.1 of the TBT  Agreement  
3.7.2.3.1   The Panel's interpretation of Article  5.1.1 of the TBT  Agreement  
Ukraine argued that the Panel erred in its interpretation and application of the phrase "in a 
comparable situation" in Article  5.1.1 by failing to elaborate on what exactly has to be compared, 
with respect to the  instructions suspending certificates and the decisions rejecting applications for 
new certificates. Specifically, Ukraine considered that the Panel provided a very limited interpretation 
of the phrase "in a comparable situation" and did n ot clarify whether an assessment of the situation 
of a country as a whole or that of the relevant suppliers is required.  
At the outset, the Appellate  Body noted that Article  5.1.1 of the TBT  Agreement consists of 
two clauses, the first clause establishing  a national treatment obligation and a most -favoured nation 
treatment obligation regarding the conditions of access to an assessment of conformity to suppliers 
of like products, and the second clause defining "access" to conformity assessment procedures fo r 
purposes of these obligations. The Appellate  Body further observed that the "likeness" of the 
products at issue is central in defining the scope of the non -discrimination obligations under 
Article  5.1.1, such that there is no obligation to grant access t o conformity assessment under no 
less favourable conditions, if the products being supplied are not "like". Moreover, the Appellate  Body 
considered that Article  5.1.1 requires an assessment of whether the conditions for access to 
conformity assessment gran ted by the regulating Member to suppliers of domestic or third -country 
products modify the conditions of competition to the detriment of suppliers of like imported products. 
Finally, the Appellate  Body noted that the national treatment and most -favoured na tion treatment 
obligations in Article  5.1.1 are qualified by the phrase "in a comparable situation". For the 
Appellate  Body, even though the word "situation" could potentially encompass a large number of 
factors on the basis of which a comparison could be made, the relevant factors would be those with 
a bearing on the conditions for granting access to conformity assessment in a particular case. 
Moreover, in accordance with the second clause of Article  5.1.1, the rules of the conformity 
assessment procedure will also be relevant for defining the universe of situations to be compared.  
The Appellate  Body pointed out that the words "in a comparable situation" relate to the entire phrase 
"so as to grant access for suppliers … under conditions no less favourable",  and not only to the 
phrase "in any other country" or the "suppliers of like products". Thus, "in a comparable situation" WT/AB/30  
 
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  qualifies the entire requirement to grant access to suppliers of like products under no less favourable 
conditions, indicating that wh ether a situation is "comparable" should be assessed in relation to the 
measure at issue granting access to conformity assessment to suppliers of like products and in light 
of the particular circumstances of each case. In addition, the Appellate  Body consi dered that the 
function of conformity assessment procedures, which is to determine that relevant requirements in 
technical regulations or standards are fulfilled, as indicated in Annex 1.3 to the TBT  Agreement, 
provides guidance for the determination of a "comparable situation". Thus, factors that impact the 
ability of Members to make a determination that relevant requirements in technical regulations or 
standards are fulfilled may be relevant in the inquiry of "a comparable situation".  
The Appellate  Body f urther noted that the obligations under Article  5.1.1 concern "access for 
suppliers  of like products" to conformity assessment, and that the second clause of Article  5.1.1 
defines "access" as " suppliers'  right to an assessment of conformity". For the Appel late Body, it is 
therefore the suppliers of like products that are entitled to an assessment of conformity under the 
rules of the procedure and under conditions no less favourable, and comparability of the situations 
has to be assessed by reference to the "suppliers". Thus, factors relating to an entire country may 
be relevant to the inquiry of whether a "comparable situation" exists insofar as they affect the 
suppliers of like products at issue in a particular case.  
In sum, the Appellate  Body found that t he assessment of whether access is granted under conditions 
no less favourable "in a comparable situation" within the meaning of Article  5.1.1 should focus on 
factors with a bearing on the conditions for granting access to conformity assessment in that spe cific 
case and the ability of the regulating Member to ensure compliance with the requirements in the 
underlying technical regulation or standard. In a particular case, such an assessment may involve 
the analysis of various factors, including the rules of the conformity assessment procedure; whether 
its preparation, adoption, or application is challenged; the nature of the products at issue; and the 
situation in a particular country or supplier. Nevertheless, the relevant factors for determining the 
existen ce of a "comparable situation" should ultimately relate to the Member's ability to make a 
positive assurance of conformity with respect to the specific suppliers of like products at issue, such 
that if no comparable situation existed for these suppliers, t he obligation to grant non -discriminatory 
access to conformity assessment would not apply to them.  
Turning to review the Panel's analysis under Article  5.1.1, the Appellate  Body considered that the 
Panel had correctly set out the interpretation of that pro vision. Thus, the Panel had correctly 
recognized that, in determining whether a situation is comparable, such that no less favourable 
access conditions must be granted, "it is necessary to identify relevant factors that render a situation 
comparable or not ", and that relevant factors would include the ability of the importing Member to 
undertake conformity assessment activities under the rules of the procedure with adequate 
confidence. Specifically, the Appellate  Body agreed with the Panel that the relevant  aspects of a 
situation would include "aspects specific to the suppliers who are claimed to have been granted 
access under less favourable conditions or to the location of the suppliers' facilities".  
In light of the above, the Appellate  Body concluded tha t the Panel adequately set out the 
interpretative framework of Article  5.1.1 of the TBT  Agreement and did not err in its interpretation 
of the phrase "in a comparable situation".  
3.7.2.3.2   The Panel's application of Article  5.1.1 of the TBT  Agreement  
Ukraine further argued that in its analysis under Article  5.1.1 the Panel relied on general 
considerations regarding the political or internal security situation in Ukraine that had no bearing on 
the situation of the relevant suppliers whose certificates were susp ended or rejected. Ukraine 
specifically took issue with the focus of the Panel assessment on the risk to life or health of 
Russian  inspectors , rather than on aspects specific to the suppliers  at issue or the location of the 
suppliers' facilities. In Ukrain e's view, the Panel had to compare the situations of the specific 
suppliers whose certificates were suspended, or applications rejected by the FBO with the situations 
of suppliers of like products originating in Russia and other countries. 
The Appellate  Body observed that, in its assessment of the evidence on the record, the Panel made 
only limited references to relevant factors relating to the specific suppliers at issue, such as the 
location of the suppliers' facilities. Importantly, while the Panel focus ed its analysis on the security 
situation in Ukraine in general, it did not assess the evidence on the record with a view to determining WT/AB/30  
 
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  how the security situation related to the specific suppliers at issue, and did not in fact focus, as it 
stated in its i nterpretation, on "aspects specific to the suppliers who are claimed to have been 
granted access under less favourable conditions or to the location of the suppliers' facilities". Thus, 
the Appellate  Body did not see that, in its assessment of the existenc e of a "comparable situation", 
the Panel had taken into consideration the situation of the specific suppliers at issue or the regions 
where the relevant suppliers were located or provided an explanation as to how the evidence on the 
record concerning the e xistence of security concerns and anti -Russian sentiment in Ukraine in 
general related to these regions and suppliers.  
Furthermore, the Appellate  Body pointed out that, in its overall assessment of the evidence, the 
Panel had referred to the importance of  protecting human life and health and noted that "the 
importing Member in applying Article  5.1.1 may confront the need to weigh and balance the interests 
of suppliers of products originating in the territories of other Members in an assessment of conformit y 
against its interest in safeguarding the life or health of its employees  when undertaking conformity 
assessment activities, such as inspections, abroad." The Appellate  Body recognized that the Panel 
did not rely on the protection of human life and health  as a legitimate objective relevant under 
Article  5.1.1 in general, but rather considered this objective to be a relevant factor to determine the 
existence of a "comparable situation" in the circumstances of the present case, to the extent that it 
could be  seen as a factor impacting on the ability of Members to make a determination that relevant 
requirements in technical regulations or standards are fulfilled, thereby ensuring compliance with 
these requirements. At the same time, the Appellate  Body noted th at the question before the Panel 
was whether a comparable situation existed in the present dispute. According to the Appellate  Body, 
the interest of safeguarding the life and health of governmental employees could only constitute a 
pertinent consideration for purposes of establishing the existence of a "comparable situation" to the 
extent that the situation applicable to the specific suppliers at issue  impedes the conditions for 
granting access to conformity assessment.  
The Appellate  Body also disagreed wi th the Panel's conclusion that there was a need to "weigh and 
balance" the market access interests of suppliers of products originating in the territories of other 
Members against the interest in safeguarding the life and health of governmental employees. The 
Appellate  Body considered that, while such a balancing test may be appropriate in assessing whether 
a measure is more trade -restrictive than necessary under Article  2.2 of the TBT  Agreement, this was 
not the question under Article  5.1.1. Nor did the Ap pellate  Body see a basis for the Panel's statement 
that the importing Member benefits from a "margin of discretion" in carrying out such a weighing 
and balancing of interests of suppliers and employees, insofar as the existence of a "comparable 
situation" had to be established based on evidence pertaining to the suppliers at issue. In light of 
these considerations, the Appellate  Body concluded that, by focusing its analysis on whether the 
FBO acted "outside its margin of discretion by balancing the interest s of Ukrainian suppliers and 
FBO employees", the Panel failed to consider how the interest of safeguarding the life and health of 
FBO employees related to the suppliers of the Ukrainian railway products at issue, and thus failed 
to address the question whe ther the security situation in Ukraine, as it related to the suppliers at 
issue, was comparable to the security situation in other countries and suppliers.  
Finally, the Appellate  Body observed that the Panel's error in applying the correct legal framework  
for examining the existence of a "comparable situation" was also reflected in its reliance on evidence 
that was either of general nature and did not relate to the existence of security concerns and 
anti-Russian sentiment in the specific regions where the relevant suppliers were located, or reflected 
the situation in regions other than those of the suppliers. Moreover, some of the evidence relied on 
by the Panel explicitly referred to the armed conflict as confined to the Donbass and Crimea regions 
of Ukrai ne, i.e.  regions different from the ones where the relevant suppliers were located. The Panel 
nevertheless considered this evidence to be relevant for its analysis of comparable situation, without 
examining how it applied to the regions where the suppliers  at issue were located, even though such 
an analysis was of particular importance, for purposes of answering the question whether the 
security situation in certain regions of Ukraine, coupled with the existence of anti -Russian sentiment 
in those same regio ns, resulted in the absence of a "comparable situation" with respect to suppliers 
located in those regions and for purposes of conducting on -site inspections by Russian 
FBO employees over the relevant period.  
In light of the above, the Appellate  Body foun d that the Panel erred in its application of Article  5.1.1 
of the TBT  Agreement to the facts of the present case in finding that, between April 2014 and 
December 2016, Ukrainian suppliers of railway products were denied no less favourable access in a 
situation that was not comparable to the situation in which Russia granted access to suppliers of WT/AB/30  
 
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  Russian railway products and suppliers of railway products from other countries. For the same 
reasons, the Appellate  Body found that the Panel erred in finding tha t less favourable access 
conditions were granted to Ukrainian suppliers of railway products also with respect to the 
two decisions through which the FBO rejected applications submitted by Ukrainian suppliers under 
CU Technical Regulation 001/2011 (decision s 1 and 2). However, the Appellate  Body did not have 
before it sufficient factual findings by the Panel or undisputed facts on the Panel record on which it 
could rely in completing the legal analysis.  
3.7.2.4   Ukraine's claim under Article  5.1.2 of the TBT  Agreemen t 
Ukraine argued that the Panel failed to make an objective assessment of the matter before it 
pursuant to Article  11 of the DSU in finding that there were no less trade -restrictive alternatives 
available to Russia within the meaning of Article  5.1.2 of th e TBT  Agreement, and that Ukraine had 
failed to establish that Russia acted inconsistently with its obligations under that provision, with 
respect to the  instructions suspending certificates and the decisions rejecting applications for new 
certificates.  
The Appellate  Body began its analysis by highlighting that both sentences of Article  5.1.2 refer to 
the notion of "necessity", the meaning of which has to be determined in the specific context of this 
provision. Specifically, the qualification "[t]his means " at the beginning of the second sentence, 
followed by the conjunction " inter alia", indicated that the second sentence describes a situation in 
which a conformity assessment procedure is prepared, adopted, or applied with a view to, or with 
the effect of,  creating unnecessary obstacles to international trade, and provides useful context for 
understanding how the notion of "necessity" in Article  5.1.2 as a whole should be interpreted. The 
Appellate  Body also noted that under the second sentence, whether a p rocedure is "more strict" or 
is "applied more strictly than is necessary" has to be assessed in relation to whether it gives the 
importing Member "adequate confidence" that products conform with the applicable technical 
regulations or standards. The Appell ate Body further noted the relevant similarities and differences 
in the language of Articles  2.2 and 5.1.2 of the TBT  Agreement and observed that both provisions 
set out obligations for WTO Members not to create unnecessary obstacles to international trade , and 
identify certain factors to be considered in a necessity analysis. The Appellate  Body concluded that 
the existence of an "unnecessary obstacle[] to international trade" under the first and 
second  sentences of Article  5.1.2 of the TBT  Agreement, read together, may be established on the 
basis of an analysis of the following factors: (i)  whether the conformity assessment procedure 
provides adequate confidence of conformity with the underlying technical regulation or standard; 
(ii) the strictness of the c onformity assessment procedure or of the way in which it is applied; and 
(iii) the nature of the risks and the gravity of the consequences that would arise from non -conformity 
with the technical regulation or standard. Since the function of conformity asse ssment procedures 
is to ensure compliance with the underlying technical regulation or standard, the legitimate objective 
of this regulation or standard would also be relevant in determining the nature of the risks and the 
gravity of the consequences that w ould arise from non -conformity. Similarly to Article  2.2, the 
conformity assessment procedure may be compared to possible alternative procedures that are 
reasonably available, are less strict or applied less strictly, and provide an equivalent contribution  
to giving the importing Member adequate confidence. This analysis ultimately involves a holistic 
weighing and balancing of all relevant factors.  
With respect to the burden of proof under Article  5.1.2, the Appellate  Body recalled that while 
Article  XX of the GATT  1994 provides for exceptions, Article  2.2 of the TBT  Agreement contains 
positive obligations, and this difference must be taken into account in the allocation of the burden 
of proof imposed on respondents and complainants under the respective prov isions. Since under 
Article  5.1.2 the burden is on the complainant to establish the elements of a breach of a positive 
obligation, the Appellate  Body considered that the allocation of the burden of proof for complainants 
and respondents under this provisio n should be guided by similar considerations to the ones under 
Article  2.2. Specifically, while under Article  XX of the GATT  1994 a respondent must establish that 
the alternative measure identified by the complainant is ultimately not reasonably available to the 
respondent, under Article  2.2 of the TBT  Agreement a complainant must make a prima facie  case 
that its proposed alternative measure is reasonably available. In any event, the fact that alternative 
measures serve as "conceptual tool[s]" in the assess ment of the trade restrictiveness of a measure 
also informs the nature and amount of evidence required. Taking into account that the specific details 
of implementation may depend on the capacity and particular circumstances of the implementing 
Member in qu estion, it would appear incongruous to expect a complainant to provide detailed WT/AB/30  
 
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  information on how a proposed alternative would be implemented by the respondent in practice, and 
precise and comprehensive estimates of the cost that such implementation would  entail.  
Turning to Ukraine's claim on appeal, the Appellate  Body recalled that, before the Panel, Ukraine 
had put forward four alternative measures: (i)  additional communications with the relevant 
Ukrainian producers; (ii)  entrusting on -site inspections in Ukraine to the competent authorities from 
Kazakhstan and Belarus; (iii)  accrediting non -Russian inspectors, either experts or organizations, to 
conduct inspections in Ukraine; and (iv)  off-site inspections.  
The Appellate  Body first addressed Ukraine's claim, which took issue with the Panel's allocation of 
the burden of proof under the alternative consisting in the possibility for the FBO to conduct off -site 
inspections (fourth alternative). Specifically, in Ukraine's view, the Panel erred in finding tha t it was 
for Ukraine to submit evidence of compliance with the statutory requirements for conducting such 
off-site inspections as an alternative to on -site inspections. The Appellate  Body recalled that, before 
the Panel, Ukraine had argued that Russia coul d have made use of off -site inspections instead of 
suspending certificates due to the impossibility to conduct on -site inspection control. For its part, 
Russia had submitted that off -site inspections could be conducted only if the conditions set out in 
Article 7.4.1 of the Organization Standard СTO Procedure of organization and implementation of 
inspection control of certified products (PC -FZT 08 -2013) were satisfied, inter alia, absence  of facts 
of non -conformity during the previous inspection control and absence of consumer complaints as to 
the quality of certified products.  
The Appellate  Body noted that, for the Panel, in those instances where the evidence on the record 
did not unequivocally establish that both relevant conditions under Article  7.4.1 of PC-FZT 08-2013 
were complied with, Ukraine had failed to demonstrate that off -site inspections were reasonably 
available for the railway products covered by the relevant instructions. The Appellate  Body observed 
that Ukraine challenged only the application  of Russia's conformity assessment procedure to the 
certificates at issue, rather than the procedure itself. It was therefore possible for Ukraine to identify 
an alternative measure that coincides with an instrument that already existed under Russia's 
legislative framework. At the same time, the Appellate  Body affirmed that alternative measures need 
not be already present in the legislation of the responding Member, even when a conformity 
assessment procedure is challenged "as applied", and not "as such". I ndeed, the role of alternative 
measures is to assist in determining whether a conformity assessment measure taken by a Member 
is more strict or applied more strictly than is necessary to ensure conformity under Article  5.1.2, 
and not to positively establis h that the conditions set out under national law for applying a different 
measure may have been present.  
For the Appellate  Body, the purpose of this relational analysis under Article  5.1.2 was to compare 
the measure at issue and an alternative measure, or  their respective applications, in terms of 
strictness and the degree of contribution to the achievement of the objective to give adequate 
confidence of conformity. Such comparison c ould not be carried out with an alternative measure that 
is merely theoret ical in nature, because, for instance, the implementing Member is not capable of 
taking it, or because it imposes an undue burden on that Member.  At the same time, the comparison 
of the challenged measure with a hypothetical alternative measure remains at a conceptual level. 
Thus, the fact that a measure with the same or similar content as the proposed alternative already 
exists in the legislative framework of the respondent Member does not change the function of the 
alternative measure as a "conceptual too l" in the necessity analysis. Therefore, as part of making a 
prima facie  case, the complainant should provide sufficient indication that the proposed alternatives 
would be reasonably available to the implementing Member, for instance, by showing that the c osts 
of the proposed alternatives would not be a priori prohibitive, and that potential technical difficulties 
associated with their implementation would not be of such a substantial nature that they would 
render the proposed alternatives merely theoretica l in nature.  The burden would then shift to the 
respondent to submit evidence substantiating that the proposed alternative measures were indeed 
merely theoretical in nature, or entailed an undue burden, for instance, because they involved 
prohibitively hig h costs or would entail substantial technical difficulties.  
The Appellate  Body affirmed that, in the present case, the comparison between the measure actually 
taken by Russia and the alternative measure had to be undertaken at a conceptual level for purpos es 
of making a prima facie  case as to whether the alternative was reasonably available to Russia. The 
Panel by contrast had considered that "it was for Ukraine to submit evidence of absence of 
non-conformities and consumer complaints concerning the railway  products covered by the WT/AB/30  
 
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  suspended certificates." Thus, the Panel's analysis conflated two distinct concepts: the alternative 
measure proposed by Ukraine; and the measure in existence under Article  7.4.1 of PC -FZT 08 -2013.  
Specifically, the Appellate  Body considered that the question before the Panel under Article  5.1.2 
was whether a less strict manner of application of this procedure existed, other than the suspension 
of certificates, which would also make an equivalent contribution to the objective of pro viding Russia 
with adequate confidence that Ukrainian railway products conformed with Russia's technical 
regulations, and which would be reasonably available to Russia. The Panel, however, did not address 
the question whether the description of the measure  provided by Ukraine was sufficient to 
demonstrate prima  facie that Russia would not be incapable of taking such an alternative measure. 
According to the Appellate  Body, the availability of certain information to Ukraine, as well as the 
issue of whether "it undertook reasonable efforts to obtain [this] information fro m Russia", was 
distinct from the issue of which a Member bears the burden of proof with respect to the application 
of the conditions in Article  7.4.1.  
In light of the above, the Appellate  Body did not see that, for purposes of establishing the reasonable 
availability of the alternative measure consisting in the conduct of off -site inspections, it was 
necessary for Ukraine to provide information about the compliance with the two  requirements of 
Article  7.4.1, namely, the absence of non -conformities and cons umer complaints with respect to the 
railway products covered by the suspensions at issue. Therefore, the burden of proof that the Panel 
placed on Ukraine went beyond what Ukraine was required to establish in making a prima facie case 
that a hypothetical me asure would have been reasonably available to Russia in the circumstances 
of the case.  
Accordingly, the Appellate  Body found that the Panel failed to make an objective assessment of the 
matter before it under Article  11 of the DSU in allocating the burden of proof under Article  5.1.2 of 
the TBT  Agreement in its analysis of this alternative measure. With respect to the other 
three  proposed alternative measures, however, the Appellate  Body found that Ukraine failed to 
establish that the Panel erred in making an objective assessment of the matter before it in finding 
that Ukraine had failed to establish that these measures were reasonably available. In the absence 
of sufficient factual findings by the Panel and undisputed facts on the Panel record, the 
Appellate  Body was not in a position to complete the legal analysis.  
3.7.2.5   Ukraine's claim regarding the existence of systematic import prevention  
Ukraine asserted that the Panel failed to make an objective assessment of the matter before it under 
Article  11 of t he DSU when examining the existence of an overarching measure consisting in the 
systematic prevention by Russia of importation of railway products from Ukraine. Specifically, 
Ukraine considered that the Panel erred in characterizing the measure at issue as  comprising only 
specific decisions suspending certificates, rejecting applications for new certificates, and not 
recognizing certificates from other CU countries that were separately challenged on an individual 
basis by Ukraine. Ukraine contended that the  individual decisions were only part of the evidence of 
the unwritten measure, and that the Panel erred in finding that the existence of the alleged unwritten 
measure was conditional on the WTO -inconsistency of these decisions. In Ukraine's view, this led 
the Panel to review the individual measures in isolation from one another and prevented it from 
assessing whether a systematic import prevention existed on the basis of all evidence before it.  
The Appellate  Body recalled that, before the Panel, Ukraine had  claimed that Russia maintains, since 
mid-2014, a systematic prevention of Ukrainian railway products from being imported into Russia 
by means of: (i)  suspending valid certificates held by Ukrainian producers; (ii)  refusing to issue new 
certificates; and ( iii) not recognizing certificates issued by other CU  countries, and that this practice 
is inconsistent with Russia's obligations under Articles  I:1, XI:1, and XIII:1 of the GATT  1994. The 
Appellate  Body also recalled that, in US – Zeroing (EC) , it had reco gnized that an "as such" challenge 
can, in principle, be brought against a measure that is not expressed in the form of a written 
document. In Argentina – Import Measures , the Appellate  Body had further elaborated on the 
standard for establishing the exist ence of an unwritten measure and in particular observed that "the 
constituent elements that must be substantiated with evidence and arguments in order to prove the 
existence of a measure challenged will be informed by how such measure is described or 
chara cterized by the complainant." The Appellate  Body observed that, in contrast to a written 
measure, the existence of unwritten measures cannot be established by submitting to a panel the 
text of a legal instrument. Instead, the existence and content of an un written measure must be 
established based on other, often circumstantial, evidence and arguments. Moreover, the specific WT/AB/30  
 
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  measure challenged and how it is described or characterized by a complainant will inform the kind 
of evidence a complainant is required  to submit and the elements that it must establish to exist, in 
order to determine the existence of the challenged measure.  
With respect to Ukraine's argument that the Panel erred by failing to make conclusions with regard 
to the existence of an unwritten  measure before assessing specific elements of that measure, the 
Appellate  Body observed that the Panel in fact took note of the precise content of the alleged 
measure and listed its constituent elements, including Ukraine's characterization of the measure  as 
"an overarching unwritten measure" that comprises several components and results in the 
"systematic prevention" of importation of Ukrainian products into Russia. Furthermore, it appeared 
logical, in light of the characteristics of the measure as descri bed by Ukraine, that the Panel's 
subsequent analysis was focused on examining the existence of a single measure and its systematic 
nature.  
With respect to the Panel's analysis regarding the existence of the alleged unwritten measure at 
issue, the Appellate  Body observed that Ukraine's own description of the measure presupposed the 
need to focus on the rationale underlying the individual instances of suspensions, rejections, and 
non-recognition of certificates. Thus, Ukraine had argued that "Ukrainian produc ers have been 
denied, or have been unable to use, certificates for reasons other than the lack of conformity  with 
the relevant technical regulations", and that Russia, "through an organized effort ", "put in place all 
means possible to prevent imports  of Uk rainian railway products into Russia". Thus, the content of 
the measure, as described by Ukraine, required a finding that the individual elements of the measure 
are parts of an organized effort or policy with the objective of " systematic  import prevention ", as 
opposed to separate instances of instructions and decisions taken for reasons relating to the 
possibility of assessing conformity with the relevant technical regulations. Furthermore, the 
discussion before the Panel focused precisely on whether the su spensions and rejections were made 
for reasons related to achieving positive assurance of conformity, or instead for reasons related to 
import prevention.  
The Appellate  Body also recalled that "a complainant challenging a single measure composed of 
severa l different instruments will normally need to provide evidence of how the different components 
operate together as part of a single measure and how a single measure exists as distinct from its 
components." In the present case, it was therefore Ukraine's bu rden to establish that the separate 
instances of suspensions, rejections, and non -recognition functioned together and formed a single 
overarching measure, distinct from its parts, in pursuance of an import prevention policy. In this 
context, it appeared to  the Appellate  Body that the rationale behind the suspensions and rejections 
constituted an important factor for determining whether the components of the alleged overarching 
measure operated together as part of a single measure. Specifically, this rationa le related to the 
impossibility for the FBO to assess conformity of Ukrainian railway products with the relevant Russian 
technical regulations due to the security situation in Ukraine, and thus to the absence of a 
comparable situation under Article  5.1.1 o f the TBT  Agreement. If this were the case, there would 
be no common policy or plan connecting the various suspensions and rejections, such that they 
operate together as part of one measure, and thus no proof that "the FBO used its powers with the 
aim or a s part of a plan directed at preventing the importation of Ukrainian railway products into 
Russia." Instead, each of these individual measures would be based on a separate and independent 
rationale, namely, the impossibility, in each particular instance, t o complete the required steps in 
the conformity assessment procedure. This is how the Appellate  Body understood the Panel's 
statement that "the fact that one of the three elements of the alleged systematic import 
prevention  … unjustifiably restricts access  to the Russian market is not sufficient to demonstrate the 
existence of systematic prevention of imports of Ukrainian products as an independent measure."  
The Appellate  Body considered that the Panel's language referring to the consistency or 
inconsisten cy of the suspensions and rejections to be somewhat imprecise. However, the 
Appellate  Body understood that the Panel had actually been concerned with the rationale behind 
such decisions, which would reveal the relationship between them and thus the existen ce of a 
common plan. Thus, in the Appellate  Body's view, while it may seem that the Panel's reasoning did 
not properly distinguish between existence and consistency of the alleged measure, in fact the Panel 
had considered the consistency of components of t he measures only insofar as the justification  
underlying their consistency would lead to the conclusion that these decisions were taken 
independently from one another and not as part of a common plan . In turn, finding no evidence of 
a common plan or organi zed effort to prevent the importation into Russia of Ukrainian railway WT/AB/30  
 
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  products would suggest that no overarching unwritten measure of systematic import prevention 
existed in the present case.  
Moreover, the Appellate  Body noted that the alleged measure, a s described by Ukraine, contains in 
itself an element of inconsistency. Thus, because Ukraine's description of the measure incorporated 
the terms "import prevention" and because most individual components of the measure were found 
by the Panel to have a ra tionale different from "import prevention", the Panel's task of assessing the 
question of existence of the measure separately from the question of its consistency was rendered 
particularly difficult. Finally, the Appellate  Body found that the Panel's findi ng as to the existence of 
the alleged unwritten measure was not based only on its assessment of the rationale behind the 
suspensions and rejections.  
In sum, given the characteristics of the alleged unwritten measure, as presented by Ukraine, and 
the Panel' s assessment of the evidence on the record, the Appellate  Body did not consider that the 
Panel erred in its objective assessment of the matter before it under Article  11 of the DSU in finding 
that Ukraine failed to demonstrate that Russia systematically pr evented the importation of Ukrainian 
railway products into Russia.  
3.8  Appellate  Body Report, United  States  – Countervailing Measures on Supercalendered 
Paper from Canada , WT/DS505/AB/R  
3.8.1   Background and Panel findings  
This dispute concerned the imposition by the  United  States of certain countervailing duty (CVD) 
measures on imports of supercalendered paper from Canada. Canada made multiple claims of 
inconsistency with the SCM  Agreement and GATT  1994 in relation to the USDOC's CVD 
determinations regarding Canadian  producers Port Hawkesbury Paper LP (PHP), Resolute FP Canada 
Inc. (Resolute), Irving Paper Ltd (Irving), and Catalyst Paper Corporation (Catalyst). Canada also 
challenged an alleged unwritten ongoing conduct measure that consisted of the USDOC asking the 
"other forms of assistance" (OFA) question and, where the USDOC discovers information during 
verification that it deems should have been provided in response to that question (i.e.  "unreported 
assistance"), applying adverse facts available (AFA) to determi ne that the discovered information 
amounts to countervailable subsidies (the OFA -AFA measure). The United  States disagreed with 
Canada's claims of inconsistency in their entirety.  
With respect to Canada's claims concerning PHP, the Panel found that the Un ited States acted 
inconsistently with Articles  1.1(a)(1)(iv), 1.1(b), 11.3, 12.8, and 14(d) of the SCM  Agreement. With 
respect to Canada's claims concerning Resolute, the Panel found that the USDOC acted inconsistently 
with Articles 1.1(b), 10, 12.7, 19.1,  and 19.3 -19.4 of the SCM  Agreement and Article  VI:3 of the 
GATT  1994. The Panel declined to rule on certain of Canada's claims under Articles  1.1(b), 10, 
11.2-11.3, 12.1 -12.3, 12.8, 14, 19.1, and 19.3 -19.4 of the SCM  Agreement and Article  VI:3 of the 
GATT  1994. With respect to Canada's claims concerning Irving and Catalyst, the Panel found that 
the USDOC acted inconsistently with Articles  10, 19.1, 19.3 -19.4, and 32.1 of the SCM  Agreement 
and Article  VI:3 of the GATT  1994. The Panel declined to rule on cer tain of Canada's claims under 
Articles  11.2, 11.3, and 12.7 of the SCM  Agreement. Finally, the Panel rejected certain of Canada's 
claims under Articles  10, 19.1, 19.3 -19.4, and 32.1 of the SCM  Agreement and Article  VI:3 of the 
GATT  1994.  
In relation to the  OFA-AFA measure, the Panel found that Canada had adduced sufficient evidence 
to establish that the challenged OFA -AFA measure constituted "ongoing conduct". The Panel did not 
consider it necessary to address Canada's argument that the challenged measure a lso amounted to 
a "rule or norm of general and prospective application". The Panel concluded that the 
OFA-AFA measure was inconsistent with Article  12.7 of the SCM  Agreement. Finally, the Panel 
declined to rule on Canada's claims under Articles 10, 11.1 -11.3, 11.6, 12.1, and 12.8 of the 
SCM Agreement . 
The United  States appealed the Panel's findings that: (i)  the OFA -AFA measure was "ongoing 
conduct" that can be challenged in WTO dispute settlement; and (ii) the OFA -AFA measure was 
inconsistent with Article  12.7 of the SCM  Agreement. Canada asked the Appellate  Body to dismiss 
the United  States' claims on appeal.  WT/AB/30  
 
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  3.8.2   Article  17.6 of the DSU: existence of the OFA -AFA measure  
At the outset, Canada argued that the United  States' claim that the Panel erred in finding that 
Canada had established the existence of the OFA -AFA measure fell outside the scope of 
appellate  review. To Canada, the United  States' claim concerned factual findings and implicated the 
Panel's appreciation of facts and evidence.  
The Appellate  Body n oted that the application of rules to facts is a legal characterization, subject to 
appellate review under Article  17.6 of the DSU. To the Appellate  Body, the United  States' claim 
concerned the Panel's understanding and application of the legal standard fo r "ongoing conduct" as 
a measure that can be challenged in WTO dispute settlement. The Appellate  Body concluded that 
the United  States' claim concerned issues of law covered in the Panel  Report and legal interpretations 
developed by the Panel, falling with in the scope of appellate review.  
3.8.3   Existence of the OFA -AFA measure as "ongoing conduct"  
The United  States claimed that the Panel erred in its assessment of the precise content, repeated 
application, and likelihood of continued application of the "ongoing conduct" measure.  
With respect to precise content, the United  States asserted that differences in language, fact 
patterns, and CVD proceeding segment in the evidence examined by the Panel precluded the Panel 
from identifying with precision the content of the measure. The Appellate  Body considered that the 
Panel correctly focused on the substance of the USDOC's conduct for each element of the 
OFA-AFA measure, as evidenced by the examples before the Panel. The Appellate  Body agreed with 
the Panel that the di fferences referred to by the United  States did not detract from the fact that the 
substance of the USDOC's conduct remained the same in relation to the elements of the measure. 
The Appellate  Body thus concluded that the Panel had not erred in finding that Canada had 
established the precise content of the OFA -AFA measure as the USDOC asking the OFA question 
and, where the USDOC discovers information during verification that it deems should have been 
provided in response to the OFA question, applying AFA to d etermine that such information amounts 
to countervailable subsidies.  
With respect to repeated application, the United  States contended that repeated application must 
be demonstrated by application of an alleged measure in a string of determinations made 
sequentially in successive proceedings over an extended period of time, as in US – Continued 
Zeroing . The Appellate  Body disagreed with the United  States' contention and stated that its 
reasoning in that appeal was connected to the European  Communities' char acterization of the 
measure in that dispute. To the Appellate  Body, the Panel's analysis reflected Canada's 
characterization of the OFA -AFA measure by focusing on the repetition of the elements identified by 
Canada that formed part of the measure. Further,  the Appellate  Body was not persuaded by the 
United  States' assertion that certain examples on the Panel record showed that the USDOC did not 
apply the OFA -AFA measure. The Appellate  Body thus concluded that the Panel had not erred in 
finding that Canada h ad established the repeated application of the OFA -AFA measure.  
With respect to the likelihood of continued application, the United  States argued that a decision to 
follow particular conduct in the future was necessary to establish this element. The Appell ate Body, 
however, noted that a complaining Member need not rely on a formal decision by the responding 
Member to demonstrate the existence of "ongoing conduct". The Appellate  Body considered that 
likelihood of continued application could be demonstrated t hrough a number of factors. The 
Appellate  Body then agreed with the Panel that the consistent manner in which the USDOC referred 
to the OFA -AFA measure, the frequent reference to previous applications of the measure in 
USDOC  determinations, the fact that t he USDOC referred to the measure as its "practice", and the 
USDOC's characterization of a departure from the measure as an "inadvertent error" all supported 
the conclusion that the measure was likely to continue to be applied. The Appellate  Body thus 
concluded that the Panel did not err in finding that Canada had established that the measure was 
likely to continue to be applied in the future. The Appellate  Body therefore upheld the Panel's finding 
that the OFA -AFA measure exists as "ongoing conduct" that co uld be challenged in WTO dispute 
settlement.  WT/AB/30  
 
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  3.8.4   Article 12.7 of the DSU: "basic rationale"  
The United  States claimed that the Panel erred under Article  12.7 of the DSU by failing to provide a 
"basic rationale" for its finding that the OFA -AFA measure was inconsistent with Article  12.7 of the 
SCM Agreement.  
The Appellate  Body recalled that, under Article  12.7 of the DSU, a panel shall set out the findings of 
fact, the applicability of relevant provisions , and the basic rationale behind any findings and 
recommendations that it makes. The requirement to set out a "basic rationale" establishes a 
minimum standard for the reasoning that panels must provide in support of their findings. To satisfy 
this minimum s tandard, panels must provide explanations and reasons sufficient to disclose the 
essential, or fundamental, justification for those findings.  
The Appellate  Body found that the Panel appropriately incorporated relevant portions of its earlier 
"as applied" a nalysis under Article  12.7 of the SCM  Agreement into its examination of the 
OFA-AFA measure. The Appellate  Body considered that the Panel had therefore provided an 
interpretation of Article  12.7 of the SCM  Agreement, addressed pertinent factual aspects of the 
OFA-AFA measure, and provided explanation sufficient to disclose the Panel's essential justification 
for its finding. The Appellate  Body thus found that the Panel had not erred under Article  12.7 of the 
DSU by failing to provide a "basic rationale " for its finding that the OFA -AFA measure was 
inconsistent with Article  12.7 of the SCM  Agreement.  
3.8.5   Article  12.7 of the SCM  Agreement  
The United  States appealed the Panel's finding that the OFA -AFA measure was inconsistent with 
Article  12.7 of the SCM  Agreement . The United  States claimed that the Panel erred by: (i)  ignoring 
the "significantly impedes" ground for using "facts available" under Article  12.7; (ii)  identifying 
conduct that was not contained in the measure as WTO -inconsistent; and (iii)  finding that the 
OFA question could never be a request for "necessary information" under Article  12.7. 
The Appellate  Body observed that, under Article  12.7 of the SCM  Agreement, the use of "facts 
available" may be based on three alternative grounds, namely, when an int erested party or 
interested Member: (i)  "refuses access to … necessary information within a reasonable period" ; 
(ii) "otherwise does not provide … necessary  information within a reasonable period" ; or 
(iii) "significantly impedes the investigation". To the  Appellate  Body, the Panel's analysis of the 
OFA-AFA measure was limited  to circumstances where an interested party fails to provide "necessary 
information". Consequently, the Panel's findings did not concern the USDOC's use of "facts available" 
where an i nterested party significantly impedes an investigation.  
The Appellate  Body further understood that the Panel had faulted the USDOC for mechanically 
concluding, without any further steps, that necessary information had not been provided and that 
the discove red assistance amounted to a countervailable subsidy, when the USDOC discovers 
unreported assistance during verifications (i.e.  assistance discovered during verification that the 
USDOC deems should have been provided in response to the OFA question). The A ppellate  Body 
considered that this conduct, identified as WTO -inconsistent by the Panel, was part of the 
OFA-AFA measure. The Appellate  Body also agreed with the Panel that the USDOC could not simply 
reach conclusions without further analysis and regard to  the facts available on the record and the 
due process rights of interested parties. Pursuant to Article  12.7 of the SCM  Agreement, 
determinations must be made on the basis of "facts" available, and not on the basis of non -factual 
assumptions or speculatio n. 
Finally, the Appellate  Body disagreed with the United  States' assertion that the Panel had found that 
the OFA question could never be a request for "necessary information" under Article  12.7 of the 
SCM Agreement. Rather, the Appellate  Body noted that th e Panel had expressly observed that the 
OFA question might pertain to necessary information regarding additional subsidization of the 
product under investigation.  
The Appellate  Body thus found that the United  States had not demonstrated that the Panel erre d 
under Article  12.7 of the SCM  Agreement. Consequently, the Appellate  Body upheld the Panel's 
finding that the OFA -AFA measure was inconsistent with Article  12.7 of the SCM  Agreement . WT/AB/30  
 
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  3.8.6   Separate opinion of one Division member  
In a separate opinion, one Appe llate Body member considered that the Panel and the majority's 
reasoning broadened the concept of "ongoing conduct" as used in US – Continued Zeroing  into 
something akin to a rule or norm of general and prospective application. In particular, that 
Appellat e Body member considered that the Panel erred by characterizing the USDOC's conduct in 
an unacceptably vague manner, and by employing inadequate evidentiary standards. To that 
Appellate  Body member, the Panel did not examine the comparability of the CVD pr oceedings used 
as evidence of the "ongoing conduct". This in turn undermined the Panel's ability to define the precise 
content, repeated application, and likelihood of continued application of the measure.  
Moreover, in its separate opinion, the Appellate  Body member noted that the CVD order in the 
USDOC CVD proceedings in Supercalendered Paper from Canada 2015 had been revoked 
retroactively to its beginning. As this was the only CVD proceeding involving Canada that was 
examined by the Panel, that Appellate  Body member considered there was no real dispute between 
the participants.43  
3.9  Appellate  Body Reports, Australia – Certain Measures Concerning Trademarks, 
Geographical Indications and Other Plain Packaging Requirements applicable to Tobacco 
Products and Pac kaging , WT/DS435/AB/R, WT/DS441/AB/R  
These disputes concerned certain restrictions, imposed by Australia, on trademarks, geographical 
indications (GIs), and other plain packaging requirements, applicable to all tobacco products sold, 
offered for sale, or o therwise supplied in Australia.  
Australia maintains a series of tobacco -control -related measures, most of which were not at issue in 
these disputes. The Panel identified the measures at issue in these disputes (the TPP  measures) as 
comprising the followin g: 
a. the Tobacco Plain Packaging Act 2011 (Cth) (TPP Act);  
b. the Tobacco Plain Packaging Regulations 2011 (Cth), as amended by the Tobacco Plain 
Packaging Amendment Regulation 2012 (No. 1) (Cth) (TPP Regulations); and  
c. the Trade Marks Amendment (Tobacco Plain P ackaging) Act 2011 (Cth) (TMA Act).  
The TPP  Act is an Act to discourage the use of tobacco products, and for related purposes. Pursuant 
to Section  3 of the TPP  Act, this Act regulates the retail packaging and appearance of tobacco 
products in order to: (i)  improve public health; and (ii)  give effect to certain obligations in the 
World  Health Organization (WHO) Framework Convention on Tobacco Control (2003) (FCTC). Thus, 
the TPP  measures are one of the means by which the Australian Government gives effect to 
Australia's obligations under the WHO FCTC and, in particular, Articles  5, 11, and 13 of the FCTC.  
The products at issue in these disputes are tobacco products. The term "tobacco product" is defined 
in the TPP  Act to mean processed tobacco, or an y product that contains tobacco that is manufactured 
to be used for smoking, sucking, chewing, or snuffing, and is not included in the Australian Register 
of Therapeutic Goods maintained under the Therapeutic Goods Act 1989. This definition 
encompasses not  only cigarettes, but also non -cigarette products, such as cigars, little cigars (also 
known as cigarillos), and bidis.  
Tobacco products manufactured or packaged in Australia for domestic consumption were required 
to comply with the TPP  measures from 1  October 2012. As of 1  December 2012, all tobacco products 
sold, offered for sale, or otherwise supplied in Australia were required to comply with the 
TPP measures. In this regard, it is noted that Australia's domestic market for tobacco products is 
supplied e ntirely through imported products.  
 
43 The majority noted, however, that the Panel issued its final Panel  Report to the parties before the 
revocation of the CVD order; the United  States filed its appeal after such revocation; and both the 
United  States and Canada confirmed that there was a dispute between them regarding the existence and 
WTO consistency of the "ongoing conduct" measure.  WT/AB/30  
 
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  Australia's TPP  measures were initially challenged by five WTO Members, namely Honduras (DS435), 
the Dominican  Republic (DS441), Cuba (DS458), Indonesia (DS467), and Ukraine (DS434). The 
DSB established separate panels to  address the matters brought by each of the five  complainants. 
However, following consultation among the parties to all five disputes, the Director -General 
composed five  panels, with the same persons serving as panelists on each of the separate panels. 
Pursuant to Article  9.3 of the DSU, the parties agreed to the harmonization of the timetable for the 
Panel proceedings in all five  disputes. However, following a request by Ukraine, the Panel suspended 
its work in DS434. The Panel in DS434 was not requested t o resume its work during the 12  months 
following suspension. Therefore, pursuant to Article  12.12 of the DSU, the authority for the 
establishment of the Panel in DS434 lapsed. Accordingly, the Panel only issued Reports with respect 
to the four remaining co mplaints by Honduras, the Dominican  Republic, Cuba, and Indonesia (the 
complainants).  
Honduras requested the Panel to find that Australia's plain packaging trademark restrictions in the 
TPP measures are inconsistent with Article  2.1 of the Agreement on Tra de-Related Aspects of 
Intellectual Property Rights (TRIPS  Agreement) (incorporating Article  6quinquies  of the Stockholm 
Act of the Paris Convention for the Protection of Industrial Property of 14 July 1967) 
(Paris  Convention (1967)) and Articles  15.4, 16.1 , 17, 20, 22.2(b), and 24.3 of the 
TRIPS  Agreement. Honduras also requested the Panel to find that the TPP  measures are inconsistent 
with Article  2.2 of the Agreement on Technical Barriers to Trade (TBT  Agreement). Additionally, 
Honduras requested the Pane l to find that Australia had acted inconsistently with Article  10bis of the 
Paris Convention (1967) (as incorporated into the TRIPS  Agreement through Article  2.1) and 
Articles  22.2(b) and 24.3 of the TRIPS  Agreement.  
The Dominican  Republic requested the Panel to find that, by its adoption and imposition of the 
TPP measures, Australia had acted inconsistently with Article  2.2 of the TBT  Agreement, Article  10bis 
of the Paris Convention (1967) (as incorporated into the TRIPS  Agreement through Article  2.1), and 
Articles  15.4, 16.1, 16.3, 20, 22.2(b), and 24.3 of the TRIPS  Agreement.  
Cuba requested the Panel to find that the TPP  measures are inconsistent with Article  2.2 of the 
TBT Agreement, Article  10bis of the Paris Conventi on (read with Article  2.1 of the 
TRIPS  Agreement), Articles  15.4, 16.1, 16.3, 20, 22.2(b), and 24.3 of the TRIPS  Agreement, as well 
as Article  IX:4 of the General Agreement on Tariffs and Trade 1994 (GATT  1994). Indonesia 
requested the Panel to find that t he TPP  measures, collectively and individually, are inconsistent with 
Article  2.2 of the TBT  Agreement, Article  2.1 of the TRIPS  Agreement (incorporating Article  10bis of 
the Paris Convention), and Articles  15.4, 16.1, 16.3, 20, 22.2(b), and 24.3 of the TR IPS Agreement. 
Indonesia also requested the Panel to find that the TPP  measures, collectively and individually, are 
inconsistent with Article  XXIII:1(a) of the GATT  1994 because they have nullified or impaired 
benefits accruing directly or indirectly to In donesia under the TBT  Agreement.  
The Panel found that the complainants had not demonstrated that the TPP  measures are inconsistent 
with Article  2.2 of the TBT  Agreement, Articles  6quinquies  and 10 bis of the Paris  Convention (1967) 
(read in conjunction with  Article  2.1 of the TRIPS  Agreement), Articles  15.4, 16.1, 16.3, 20, 22.2(b), 
and 24.3 of the TRIPS  Agreement, and Article  IX:4 of the GATT  1994. In light of these findings, the 
Panel declined the complainants' requests that the Panel recommend that Austra lia bring its 
measures into conformity with its obligations under the TRIPS  Agreement, the TBT  Agreement, and 
the GATT  1994.  
Honduras and the Dominican  Republic (the appellants) appealed the Panel  Reports. The appellants 
challenged aspects of the Panel's f indings under Article  2.2 of the TBT  Agreement, and Articles  16.1 
and 20 of the TRIPS  Agreement only. It is noted that, in addition to its own appeal, the 
Dominican  Republic incorporated by reference, all of Honduras' claims and arguments on appeal.  
3.9.1   Claims  relating to the Panel's findings under Article  2.2 of the TBT  Agreement  
The Appellate  Body recalled that for purposes of establishing that a measure is inconsistent with 
Article  2.2 of the TBT  Agreement, a complainant must demonstrate that a technical reg ulation is 
"more trade -restrictive than necessary to fulfil a legitimate objective, taking account of the risks 
non-fulfilment would create". The assessment of "necessity", in the context of Article  2.2, involves 
a relational analysis of the following fact ors: (i)  the trade restrictiveness of the technical regulation; 
(ii) the degree of contribution that it makes to the achievement of a legitimate objective; and (iii)  the WT/AB/30  
 
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  risks non -fulfilment would create. Moreover, establishing whether a technical regulati on is "more 
trade -restrictive than necessary" may involve a comparison between: (i)  the trade restrictiveness 
and the degree of contribution of the measure at issue to the legitimate objective; and (ii)  the trade 
restrictiveness and the degree of contribut ion of possible alternative measures that are reasonably 
available to the legitimate objective, taking account of the risks non -fulfilment would create.  
For the Appellate  Body, the phrase in the second sentence of Article  2.2 that "technical regulations 
shall not be more trade -restrictive than necessary" implies that "some" trade  restrictiveness is 
allowed. Establishing whether a technical regulation is "more trade -restrictive than necessary" may 
involve a comparison between: (i)  the trade restrictiveness a nd the degree of contribution of the 
measure at issue to the legitimate objective; and (ii)  the trade restrictiveness and the degree of 
contribution of possible alternative measures that are reasonably available to the legitimate 
objective – taking account  of the risks non -fulfilment would create. However, the Appellate  Body 
recognized that there are certain instances when such a comparative analysis might not be required, 
such as, when the measure is not trade -restrictive at all, or when a trade -restrictiv e measure makes 
no contribution to the achievement of the relevant legitimate objective. Likewise, a comparative 
analysis might not be required where it can be demonstrated that, by its design, a trade -restrictive 
measure is incapable of contributing to th e achievement of the relevant legitimate objective.  
In its assessment of whether the complainants had demonstrated that the TPP  measures are 
inconsistent with Article  2.2, the Panel had examined, inter alia: (i) the contribution of the 
TPP measures to Aust ralia's objective; (ii)  the trade restrictiveness of the TPP  measures; and 
(iii) whether the alternative measures proposed by the complainants are less trade -restrictive than 
the TPP  measures while making an equivalent contribution to Australia's objective . 
The Appellate  Body addressed the appellants' claims of error regarding each of these three aspects 
of the Panel's analysis.  
3.9.1.1   Panel's findings concerning the contribution of the TPP  measures to Australia's 
objective  
The Panel sought to determine the degree  to which the TPP  measures, as written and applied, 
contribute, if at all, to Australia's legitimate objective of improving public health by reducing the use 
of, and exposure to, tobacco products. Although the Panel conducted its analysis in several steps,  it 
emphasized that its overall assessment would be based on the entirety of the relevant evidence, 
taken together. Following the Panel's examination of (i)  the design, structure, and intended 
operation of the TPP  measures, (ii)  the actual application of t he TPP  measures, and (iii)  the impact 
of the TPP  measures on illicit trade, the Panel concluded that the complainants had failed to 
demonstrate that the TPP  measures are not apt to make a contribution to Australia's objective of 
improving public health by reducing the use of, and exposure to, tobacco products. Rather, the Panel 
found that the evidence before it, taken in its totality, supported the view that the TPP  measures, in 
combination with other tobacco control measures maintained by Australia (includ ing the enlarged 
graphic health warnings (GHWs) introduced simultaneously with TPP), are apt to, and do in fact, 
contribute to Australia's objective of reducing the use of, and exposure to, tobacco products.  
On appeal, Honduras argued that, while the Panel  had set out the correct legal standard under 
Article  2.2 of the TBT  Agreement, the Panel erred in law as it failed to apply this legal standard to 
the facts of the case in making its findings on the degree of contribution of the TPP  measures to 
Australia' s objective. However, the majority of the appellants' claims of error relating to this aspect 
of the Panel's analysis challenged the Panel's objectivity in its assessment of the facts of the case, 
with the appellants arguing that the Panel failed in its du ty under Article  11 of the DSU. Australia 
requested the Appellate  Body to reject the claims under Article  2.2 of the TBT  Agreement and under 
Article  11 of the DSU in their entirety.  
3.9.1.1.1   Claims that the Panel erred in its application of Article  2.2 of the TBT  Agreement  
Honduras acknowledged that the Panel had set out the correct legal standard of how to assess the 
degree to which a Member's technical regulation, as adopted, written, and applied, contributes to 
the legitimate objective pursued by that Member. How ever, Honduras claimed that the Panel erred 
in law because it failed to apply this legal standard to the facts of the case. Honduras argued that 
the Panel considered that an examination of the totality of the evidence meant that it was relieved 
of its obli gation to conduct a proper analysis of the probative value of the evidence regarding the WT/AB/30  
 
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  measures' actual impact on the relevant smoking behaviour. Australia submitted that Honduras' 
claims related to the Panel's appreciation of the evidence and arguments and the relative weight 
that the Panel attributed to specific pieces of evidence, rather than the Panel's engagement with 
issues of law and legal interpretation. Accordingly, Australia requested the Appellate  Body to reject 
Honduras' claims that the Panel erred in its application of Article  2.2 of the TBT  Agreement in its 
assessment of the contribution of the TPP  measures to Australia's objective.  
The Appellate  Body acknowledged that it is sometimes difficult to distinguish clearly between issues 
that are p urely legal or purely factual or are mixed issues of law and fact. However, in most cases, 
an issue will be  either  one of application of the law to the facts or an issue of the objective 
assessment of facts, but not both. In these appellate proceedings, th e Appellate  Body considered 
that Honduras' claims implicated the Panel's appreciation of the facts and evidence, rather than its 
application of the legal standard under Article  2.2 to the facts of this case. Accordingly, the 
Appellate  Body found that Hondu ras had not substantiated its claims that the Panel erred in its 
application of Article  2.2 to the facts of this case.  
Rather, the Appellate  Body observed that in elaborating its claims that the Panel erred under 
Article  2.2 of the TBT  Agreement in its an alysis of the contribution of the TPP  measures to Australia's 
objective, Honduras made arguments that overlapped entirely with those made in support of its 
claims under Article  11 of the DSU. Given the complete overlap between these two  sets of 
arguments, and the focus of both sets of arguments on the Panel's engagement with the facts and 
appreciation of the evidence before it, the Appellate  Body addressed all of Honduras' challenges to 
the Panel's contribution analysis under the rubric of its claims under Article  11 of the DSU.  
3.9.1.1.2   Claims under Article  11 of the DSU  
The appellants requested the Appellate  Body to reverse the Panel's conclusion that the TPP  measures 
are apt to, and do, make a meaningful contribution to Australia's objective of reducing the use of , 
and exposure to, tobacco products. The appellants' request was based, primarily, on their claims 
that the Panel failed in its duty under Article  11 of the DSU to make an objective assessment of the 
matter before it, with the appellants' focus being on th e Panel's assessment of the facts of the case.  
Honduras contended that the Panel failed to conduct an objective examination of the evidence on 
the plain packaging measures' contribution to the objective of reducing the use of tobacco products. 
The Dominica n Republic, for its part, appealed the Panel's overall findings and intermediate findings 
resulting from its assessment of the: (i)  post-implementation evidence on the actual  impact of the 
TPP measures on smoking behaviours; (ii)  pre-implementation evidenc e on the anticipated  impact 
of the TPP  measures; (iii)  post-implementation evidence on the actual  impact of the TPP  measures 
on proximal and distal outcomes; and (iv)  potential future impact of the TPP  measures.  
Australia asked the Appellate  Body to reject  all of the appellants' claims under Article  11 of the DSU, 
characterizing them as an "unprecedented assault" on a panel's performance of its fact -finding 
function. In Australia's view, given both the scale and nature of the appellants' claims under 
Article 11 of the DSU, these claims are an invitation to the Appellate  Body to determine whether the 
Panel's factual findings are correct , rather than whether the Panel was objective  in making its 
assessment of the facts of the case.  
Before addressing the claims  of error, the Appellate  Body highlighted certain preliminary 
considerations that informed its approach to the appellants' claims under Article  11 of the DSU. 
These considerations pertained to: (i)  the burden of proof under Article  2.2 with respect to the 
assessment of the contribution of the TPP  measures to Australia's objective; (ii)  the nature of the 
Panel's overall conclusion, and the scope of the appellants' appeals in respect thereof; and 
(iii) cross-cutting themes underpinning the appellants' claims under Article  11 of the DSU.  
With respect to the burden of proof , the Appellate  Body recalled that before the Panel, the 
complainants had claimed that the TPP  measures are inconsistent with Article  2.2 because they are 
more trade -restrictive than necessary  to fulfil a legitimate objective, taking account of the risks 
non-fulfilment would create. The complainants submitted two  sets of arguments in support of their 
claims under Article  2.2. In their main set of arguments, the complainants asserted that  the 
TPP measures are not apt to contribute and make no contribution to Australia's objective. In their 
alternative set of arguments, the complainants contended that, even if the TPP  measures make 
some contribution to Australia's objective, the TPP  measures are m ore trade -restrictive than WT/AB/30  
 
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  necessary because certain less trade -restrictive alternative measures would be reasonably available 
to Australia to achieve an equivalent contribution to its objective, taking account of the risks that 
non-fulfilment of the objec tive would create.  
The Appellate  Body noted that it is well settled that the party who asserts a fact, whether the 
claimant or the respondent, is responsible for providing proof thereof. Thus, the burden of proving 
that the TPP  measures are inconsistent wi th Article  2.2 of the TBT  Agreement rested on the 
complainants. An implication of this allocation of the burden of proof was that, with respect to their 
main set of arguments, the complainants were required to adduce sufficient evidence to persuade 
the Pan el that the TPP  measures are not apt to, and do not, make any contribution to Australia's 
legitimate objective. The Appellate  Body also recalled that the degree of contribution is only 
one factor of a panel's overall weighing and balancing for determining "necessity" under Article  2.2, 
and there is no predetermined threshold of contribution for purposes of demonstrating an 
inconsistency with Article  2.2. A panel's overall weighing and balancing exercise need not be 
quantitative and is often a qualitative as sessment. Thus, with respect to the complainants' 
alternative set of arguments, the Appellate  Body did not consider that the complainants needed to 
demonstrate a precise quantifiable degree of contribution that the TPP  measures make to Australia's 
objectiv e, in order to meet their burden of demonstrating that the TPP  measures are "more 
trade -restrictive than necessary". Rather, the complainants had to demonstrate that the 
TPP measures are more trade -restrictive than necessary because an equivalent degree of  
contribution could be achieved through less trade -restrictive alternative means.  
With respect to the nature of the Panel's overall conclusion and the scope of the appellants' appeals , 
the Appellate  Body recalled that the Panel had concluded that: (i)  the complainants had failed to 
demonstrate that the TPP  measures are not apt to make a contribution to Australia's objective of 
improving public health by reducing the use of, and exposure to, tobacco products; but rather (ii)  the 
evidence before the Panel, ta ken in its totality, supported the view that the TPP  measures, in 
combination with other tobacco control measures maintained by Australia (including the enlarged 
GHWs introduced simultaneously with TPP), are apt to, and do in fact, contribute to Australia' s 
objective of reducing the use of, and exposure to, tobacco products. The Appellate  Body agreed with 
the participants that these two components of the Panel's overall conclusion, read together, are a 
rejection of the complainants' proposition that the TPP  measures are not apt to, nor do they, make 
a contribution to Australia's objective of reducing the use of, and exposure to, tobacco products.  
The Appellate  Body also took note of the further conclusion by the Panel that the TPP  measures are 
apt to, and do , make a meaningful  contribution to Australia's objective of reducing the use of, and 
exposure to, tobacco products. The Appellate  Body considered that this sentence in the Panel's 
conclusion spoke to the question of the "degree" of the contribution that t he TPP  measures, in 
concert with Australia's other tobacco -control measures, make to Australia's objective, and in so 
doing related to the alternative set of the complainants' arguments. Hence, the Appellate  Body 
understood the Panel to have made this conc lusion as a gateway to addressing the complainants' 
alternative proposition that, even if the Panel were to conclude that the TPP  measures make a 
contribution to Australia's objective, the TPP  measures would still be more trade -restrictive than 
necessary b ecause various alternative measures would be available to Australia that are less 
trade -restrictive and could achieve an equivalent degree of contribution to Australia's objective.  
With respect to the cross-cutting themes underpinning the appellants' clai ms under Article  11 of the 
DSU, the Appellate  Body pointed out that, while the appellants had made numerous claims against 
specific statements, analyses, and findings of the Panel, they had largely addressed these claims 
under the rubric of broad cross -cutting themes, including: (i)  the allocation of the burden of proof; 
(ii) denial of due process; (iii)  the Panel's alleged failure to provide reasoned and adequate 
explanations; and (iv)  the materiality of the appellants' claims under Article  11 of the DSU. The 
Appellate  Body indicated that the issue before them was whether the appellants demonstrated that 
the Panel, in conducting its analysis leading to its overall conclusion on the contribution of the 
TPP measures to Australia's objective, had made an objec tive assessment of the facts of the case  in 
accordance with Article  11 of the DSU. Thus, for the Appellate  Body, the appellants' myriad claims 
and arguments pertained to this single issue, and were not, in and of themselves, discrete "issues" 
within the me aning of Articles  17.6 and 17.12 of the DSU. Accordingly, the Appellate  Body 
considered that it need not address, separately, each claim of error raised by the appellants under 
Article  11 of the DSU. Rather, the Appellate  Body considered it sufficient to a ddress, jointly, clusters 
of claims based on cross -cutting themes underpinning these claims.  WT/AB/30  
 
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  Still in this regard, the Appellate  Body observed that the Panel's analysis of the contribution of the 
TPP measures to Australia's objective was quite detailed, ye t the appellants' claims under Article  11 
of the DSU, challenging the Panel's analysis of the contribution of the TPP  measures to Australia's 
objective, formed the bulk of their voluminous appeal. Moreover, with the exception of the Panel's 
findings on the  impact of the TPP  measures on illicit trade, the appellants had challenged all of the 
intermediate findings that the Panel made in its analysis, as well as the Panel's overall conclusion 
on the contribution of the TPP  measures to Australia's objective. Th e Appellate  Body noted that the 
sheer volume of the appellants' claims under Article  11 of the DSU in these appellate proceedings 
was unprecedented. The Appellate  Body recalled that a claim that a panel has failed to conduct an 
objective assessment of the matter before it is a very serious allegation. Not every error by a panel 
amounts to a failure by the panel to comply with its duties under Article  11, but only those which, 
taken together or singly, undermine the objectivity of the panel's assessment of t he matter before 
it. The Appellate  Body also underlined that claims that a panel had distorted, disregarded, or 
misrepresented evidence implied not simply an error of judgment in the appreciation of evidence 
but rather an egregious error that calls into qu estion the good faith of a panel. For these reasons, 
the Appellate  Body recalled its caution that Members consider carefully when and to what extent to 
challenge a panel's assessment of a matter pursuant to Article  11, in keeping with the requirement 
in Article 3.7 of the DSU that Members "exercise judgement in deciding whether action under the 
WTO dispute settlement procedures would be fruitful".  
Furthermore, the Appellate  Body recalled its past statement that within these parameters of 
Article  11 of the D SU, it is generally within the discretion of the panel to decide which evidence it 
chooses to utilize in making findings, and that when assessing the probative value of the evidence, 
a panel is not required to "accord to factual evidence the same meaning a nd weight as do the 
parties". As such, a challenge under Article  11 of the DSU cannot be made out simply by asserting 
that a panel did not agree with arguments or evidence. In this vein, the Appellate  Body emphasized 
that it would not entertain attempts by  the appellants to resubmit their factual arguments under the 
guise of challenging the objectivity of the Panel's assessment of the facts of the case. In the 
Appellate  Body's view, entertaining such factual arguments would undermine the Panel in its role a s 
the trier of facts and the adjudicator of first instance in WTO dispute settlement.  
Based on these preliminary considerations, the Appellate  Body considered it appropriate to address 
the appellants' claims on the basis of these three  approaches: (i)  a minority of the appellants' claims 
warranted discrete examination (the appellants' claims regarding anticipated effects of the 
TPP measures, as well as a few claims regarding the actual effects of the TPP  measures); (ii)  with 
respec t to the majority of the appellants' claims under Article  11 of the DSU, the Appellate  Body 
addressed, jointly, clusters of claims based on cross -cutting themes underpinning these claims; and 
(iii) with respect to the remainder of the appellants' claims un der Article  11 of the DSU, the 
Appellate  Body considered it unnecessary to rule on the substance of these claims in order to provide 
a positive solution to the dispute before it.  
3.9.1.1.2.1   Claims that warranted discrete examination  
In its analysis concerning the ant icipated effects of the TPP  measures , the Panel reviewed, inter alia, 
the body of studies – mostly predating the implementation of the TPP  measures – that provided the 
evidentiary base for the adoption of the measures (the TPP  literature). The Panel found that, overall, 
the complainants had failed to demonstrate that the TPP  measures would be incapable of 
contributing to Australia's objective of improving public health by reducing the use of, and exposure 
to, tobacco products, through the operation of the t hree mechanisms identified in the TPP  Act, in 
combination with other relevant tobacco control measures applied by Australia. Rather, the Panel 
considered that in a regulatory context where tobacco packaging would otherwise be the only 
opportunity to convey  a positive perception of the product through branding, as is the case in 
Australia, it was reasonable to hypothesize some correlation between the removal of such design 
features and the appeal of the product, and between such reduced product appeal and co nsumer 
behaviours. According to the Panel, it also did not appear unreasonable, in such a context, in light 
of the evidence before the Panel, to anticipate that the removal of these features would also prevent 
them from creating a conflicting signal that w ould undermine other messages that seek to raise the 
awareness of consumers about the harmfulness of smoking that are part of Australia's tobacco 
control strategy, including those arising from GHWs.  
The appellants claimed that the Panel failed to make an o bjective assessment of the facts of the 
case, as provided for under Article  11 of the DSU, in reaching its intermediate conclusions based on WT/AB/30  
 
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  its assessment of the pre -implementation evidence. Specifically, the appellants claimed that the 
Panel: (i)  inappro priately attached probative value to the TPP  literature; and (ii)  disregarded the 
Dominican  Republic's evidence that allegedly contradicted the Panel's intermediate conclusions.  
The Appellate  Body did not agree with Honduras that the Panel had failed to of fer a reasoned and 
adequate explanation, or treated evidence in a one -sided manner, in reaching its conclusion that the 
TPP literature can be considered as coming from respected and qualified sources, and therefore 
should not be dismissed in its entirety. In any event, the Appellate  Body considered that any such 
alleged error, had it occurred, would not have been so material as to undermine the objectivity of 
the Panel's assessment of the matter before it. In this regard, the Appellate  Body emphasized that 
it was the complainants, not the Panel, who bore the burden of adducing credible evidence to prove 
their proposition that the TPP  measures are incapable of contributing to Australia's objective. 
Accordingly, the Appellate  Body found that Honduras had faile d to demonstrate that the Panel acted 
inconsistently with Article  11 of the DSU by relying on the TPP  literature as part of its broader 
evidentiary base for assessing the contribution of the TPP  measures.  
Additionally, the Appellate  Body disagreed with the  premise underlying the Dominican  Republic's 
claim that the body of evidence that the Dominican  Republic identified directly contradicted the 
Panel's finding that the branding elements on tobacco packaging can convey positive perceptions to 
consumers, such  that their removal would be apt to reduce the appeal of packaging (the 
first mechanism) and enhance the effectiveness of GHWs (the second mechanism). To the contrary, 
based on a careful review of the Panel's findings, as well as of the nature and scope of  the 
Dominican  Republic's evidence, the Appellate  Body found that the Dominican  Republic's claim did 
not reflect a correct understanding of the Panel's reasoning or its own evidence. Accordingly, the 
Appellate  Body found that the Dominican  Republic had fai led to demonstrate that the Panel acted 
inconsistently with Article  11 of the DSU by disregarding the evidence that contradicted the Panel's 
conclusion, or by offering incoherent reasoning when it failed to address the evidence pertaining to 
the issue that  the Panel itself acknowledged was crucial to its analysis.  
For these reasons, the Appellate  Body upheld  the Panel's intermediate conclusion regarding the 
evidence pertaining to the design, structure, and intended operation of the TPP  measures 
(anticipated  effects) that the complainants failed to demonstrate that the TPP  measures are 
incapable of contributing to Australia's objective through the three  mechanisms by which the 
measures are designed to operate (i.e.  reducing the appeal of tobacco products,  enhancing the 
effectiveness of GHWs, and reducing the ability of the pack to mislead consumers) and that, to the 
contrary, this evidence is consistent with the proposition that the TPP  measures are apt to affect 
smoking behaviour through these three  mechanism s. 
With respect to the Panel's findings regarding the actual effects of the TPP  measures , the Panel 
examined the post -implementation evidence before it pertaining to: (i)  proximal  outcomes 
(i.e. reducing the appeal of tobacco products, enhancing the effect iveness of GHWs, and reducing 
the ability of the pack to mislead consumers); (ii)  quitting -related and other distal outcomes; 
(iii) impact of the TPP  measures on smoking prevalence; and (iv)  impact of the TPP  measures on 
consumption and sales volumes of to bacco products. The Appellate  Body considered that the 
appellants' claims concerning the following aspects of the Panel analyses of the latter two categories 
of post -implementation evidence (i.e.  smoking prevalence and consumption and sales volumes of 
tobacco products) warranted discrete examination: (i)  step 1 of the Panel's smoking prevalence 
analysis; (ii)  step 2 of the Panel's cigarette consumption analysis; (iii)  step 3 of the Panel's smoking 
prevalence and cigarette consumption analyses; and (iv)  due process concerns regarding the Panel's 
use of certain econometric tools. The Appellate  Body rejected all of the appellants' claims that it 
considered warranted discrete scrutiny except for two, namely: (i)  the impact of tobacco costliness 
on smoking behavi our in step  3 of the Panel's cigarette consumption analysis; and (ii)  the appellants' 
due process concerns regarding the Panel's use of certain econometric tools.  
As regards the impact of tobacco costliness, in step  3 of its smoking prevalence analysis in 
Appendix  C, the Panel observed that the Dominican  Republic's econometric results could not be 
taken at face value, mainly because most of their model specifications are unable to detect the 
impact of tobacco costliness (including excise tax increases) on s moking prevalence, even though 
all parties considered tobacco excise tax to be one of the most effective tobacco control policies. In 
its cigarette consumption analysis in Appendix  D, the Panel did not indicate whether any of the 
parties' models were able to detect the impact of tobacco costliness. On appeal, the 
Dominican  Republic claimed that the Panel acted inconsistently with Article  11 of the DSU WT/AB/30  
 
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  by: (i) treating the parties' evidence inconsistently; and (ii)  failing to engage with the 
Dominican  Republ ic's evidence and arguments.  
The Appellate  Body found the Dominican  Republic's position that the Panel rejected certain models 
to be misleading. The Appellate  Body observed that the Panel did not "reject" or "accept" any model 
per se on the basis of any in dividual criterion of robustness. Rather, the Panel assessed the parties' 
evidence, starting with the complainants' evidence, and noted multiple reasons to doubt the 
reliability of that evidence. The Appellate  Body noted further that, in assessing the part ies' smoking 
prevalence evidence, although the Panel had doubts about certain of the complainants' models on 
the ground that they were unable to detect the impact of tobacco costliness, the Panel did not 
explicitly indicate that Australia's models were abl e to detect this impact. Hence, the Panel did not 
rely on this as a reason for finding that Australia's models were more reliable than the complainants' 
models. Since the Panel did not rely on this as a reason to find Australia's models more credible than 
the complainants' models, the Appellate  Body saw no inconsistency in the Panel's treatment of the 
parties' smoking prevalence evidence with respect to this "criterion" of robustness. Consequently, 
the Appellate  Body did not consider that the Panel treated the parties' evidence inconsistently with 
respect to its assessment that Australia's smoking prevalence evidence was more credible than the 
complainants' evidence and its overall conclusion that there was some evidence suggesting that the 
TPP measures cont ributed to the reduction in smoking prevalence.  
That said, the Appellate  Body observed that it was uncontested that the Panel did not explicitly 
address the parties' arguments relating to the factual allegation that Australia's consumption model 
showed a p ositive effect of the 2013 tax increase on consumption. The Panel's decision not to 
address these arguments was notwithstanding the considerable debate between the parties over 
this issue and the fact that the Panel had explicitly indicated that such argum ents and evidence were 
"on the record". For the Appellate  Body, the Panel's decision not to explicitly address the 
Dominican  Republic's arguments and evidence regarding Australia's consumption evidence was 
questionable given that the Panel relied on almost  identical reasoning to critique the complainants' 
smoking prevalence models. The Appellate  Body therefore considered that the Panel's failure to 
address the Dominican  Republic's argument and supporting evidence alleging that Australia's 
consumption models  showed that excise tax increases led to an increase in cigarette consumption 
constituted an error in the Panel's appreciation of the evidence.  
However, the Appellate  Body emphasized that the Panel's error in this respect was limited to the 
Panel's assess ment of whether the TPP  measures contributed to the decline in cigarette 
consumption. Thus, the Panel's error only implicated the Panel's conclusion in step  3 of its cigarette 
consumption analysis.  
As regards the appellants' due process concerns, the appel lants claimed that the Panel failed to 
make an objective assessment of the facts of the case, as provided for under Article  11 of the DSU, 
when assessing certain post -implementation econometric evidence submitted by the parties. 
Honduras clarified that its  claim concerned both: (i)  who undertook the analysis on behalf of the 
Panel (with Honduras alleging that it was a "ghost expert" instead of an expert or a group of experts 
appointed under Article  13 of the DSU or Article  14.2 of the TBT  Agreement); and (i i) the alleged 
failure by the Panel to provide the parties with a meaningful opportunity to comment on the Panel's 
analysis. By contrast, the Dominican  Republic indicated that its claim was narrower, limited to the 
second of the concerns raised by Honduras , i.e. the alleged failure by the Panel to provide the parties 
with a meaningful opportunity to comment on the Panel's analysis. Specifically, the 
Dominican  Republic alleged that the Panel developed and executed certain econometric tests on its 
own, withou t giving the parties any opportunity whatsoever to comment. The focus of the 
Dominican  Republic's claim was the Panel's employment of the econometric tools of 
"multicollinearity" and "non -stationarity". The Appellate  Body observed that while Honduras had 
asserted that its claims pertained to the Panel's analysis in the entirety of Appendices A -E to the 
Panel  Report (comprising 150  pages), in substantiating its claims on appeal, Honduras referred only 
to the Panel's reliance on "new" robustness criteria (i.e . multicollinearity and non -stationarity). 
Hence, the Appellate  Body's analysis focused on the Panel's reliance on these two criteria.  
Concerning Honduras' allegation that the Panel had an obligation to appoint experts, the 
Appellate  Body recalled that Art icle 13.1 of the DSU identified the "right", not obligation, of a panel 
to seek information and technical advice from any individual or body which it deems appropriate. 
Similarly, both Article  13.2 of the DSU and Article  14.2 of the TBT  Agreement employ th e auxiliary 
verb "may" to express the permissive intent of these provisions. Moreover, a panel's authority under WT/AB/30  
 
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  Article  13 of the DSU is comprehensive, and it includes the authority to decide not to seek such 
information or advice at all. In light of the comprehensive authority to seek information vested into 
a panel under Article  13 of the DSU, the Appellate  Body considered that it was well within the Panel's 
discretion to decide whether to seek expert assistance. The Appellate  Body did not agree with 
Honduras that the technical nature of the evidence addressed in Appendices  A-E automatically 
implied that the Panel was "under an obligation" to seek external expert advice in order to assess 
this evidence. Furthermore, the Appellate  Body observed that, with respect to the econometric 
evidence that the Panel assessed in Appendices  A-E to its Report, none of the complainants 
requested the Panel to engage experts, pursuant to Article  14.2 of the TBT  Agreement, to assist in 
questions of a technical nature. Absent  such a request, the Appellate  Body could not accept 
Honduras' argument on appeal that the Panel somehow compromised the parties' due process rights 
by failing to seek expert assistance on its own initiative. The Appellate  Body posited that if the parties 
had been of the view that it was, as Honduras put it, "indispensably necessary" for the Panel to seek 
expert assistance, they had been free to request the Panel to do exactly that. Accordingly, the 
Appellate  Body found that the Panel did not act inconsiste ntly with its duty to conduct an objective 
assessment of the matter under Article  11 of the DSU simply by seeking to assess the evidence put 
before it without engaging experts.  
Turning to the allegations concerning the Panel's reliance on multicollinearity  and non -stationarity, 
the Appellate  Body noted that neither Honduras nor the Dominican  Republic considered that the 
Panel's use of the econometric tools of multicollinearity and non -stationarity was prohibited under 
Article  11 of the DSU, per se. Rather, the appellants contended that the Panel's appreciation and 
assessment of the facts before it, leading to its factual findings, and particularly its reliance on 
multicollinearity and non -stationarity, should have been tested with the parties.  
The Appellate  Body recalled that, in its examination of the post -implementation evidence of smoking 
prevalence and consumption, multicollinearity and non -stationarity were two of the concerns 
identified by the Panel pertaining to certain evidence provided by the complai nants. Moreover, the 
Panel relied on, inter alia, the fact that certain pieces of Australia's evidence did not suffer from 
these concerns, in order to conclude that the TPP  measures contributed to reducing smoking 
prevalence and consumption. The Appellate  Body's review of the Panel record suggested that these 
concerns were not identified by the parties but were introduced by the Panel itself. Furthermore, the 
Panel did not pose questions to the parties or otherwise invite them to comment on the use of these  
robustness criteria in addressing the parties' evidence. It appeared to the Appellate  Body that the 
parties first became aware of possible concerns relating to multicollinearity and non -stationarity 
when the Panel issued its Interim Report to the parties.  At the interim review stage, the complainants 
did not raise concerns regarding the Panel's identification of these concerns. The Appellate  Body 
noted that, in order to identify the concerns regarding multicollinearity and non -stationarity in the 
parties' evidence, the Panel was obliged to conduct variance inflation factors (VIF) and unit -root 
tests. The Panel's reliance on these technical tests was relevant to its assessment of the credibility 
of the evidence, and its ultimate determination that the TPP  measures contributed to reducing 
smoking prevalence and consumption. These complex technical tests thus had an important role in 
the Panel's assessment of the evidence. The Appellate  Body noted further that the application of 
these tests involved a certain d egree of discretion on the part of the Panel as to whether, and to 
what extent, concerns regarding multicollinearity and non -stationarity were legitimate reasons to 
question the reliability of the evidence. Given that these concerns were not introduced by the parties, 
but emanated from the Panel itself, and in light of their highly technical nature and of the Panel's 
discretion in relying on these concerns, the Appellate  Body considered that the Panel should have 
explored these issues with the parties.  
The Appellate  Body took note of Australia's argument that the complainants could have used the 
interim review stage to request the Panel to review the relevant parts of the Panel  Report pursuant 
to Article  15 of the DSU but chose not to do so. According to Aus tralia, the conduct of the parties is 
a relevant consideration in the evaluation of a party's due process claim and such a claim should be 
rejected where the party failed to raise its objections notwithstanding an opportunity to do so. The 
majority of the Division hearing these appeals disagreed. In the majority's view, although Honduras 
and the Dominican  Republic could have raised their concerns regarding the Panel's reliance on these 
econometric tools during the interim review stage, in the circumstances of the present disputes, 
their failure to do so did not detract from the Panel's due process violation in its treatment of certain 
evidence submitted by the complainants. While the majority acknowledged that interim review 
affords parties an opportunity to  raise and address numerous aspects of a Panel's findings, in their 
view, the interim review process contemplated under Article  15 would not have been sufficient to WT/AB/30  
 
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  enable the parties to adequately explore these issues, given the review's limited nature an d late 
stage. For these reasons, the majority considered that, by introducing in its Interim Report novel 
econometric criteria that it had not tested with the parties in its examination of the 
post-implementation evidence of smoking prevalence and consumpt ion, the Panel denied the parties 
their due process rights and thus failed to make an objective assessment of the facts under Article  11 
of the DSU. Thus, the majority found that the Panel erred in the instances where it relied on 
multicollinearity and non -stationarity in its assessment of the parties' post -implementation evidence 
of smoking prevalence and consumption.  
In sum, the Appellate  Body found that the Panel erred with respect to its assessment of 
multicollinearity, non -stationarity, and the impact of tobacco costliness, in finding that Australia's 
econometric evidence was more credible than the complainants' econometric evidence.  
With respect to the Panel's reliance on the impact of tobacco costliness to critique the parties' 
evidence, the Appellate  Body considered that the Panel's failure to address the Dominican  Republic's 
arguments fatally undermined the Panel's determination that Australia's evidence with respect to 
whether the TPP  measures contributed to the decline in cigarette consumption was more credible 
than the complainants' evidence. Therefore, the Appellate  Body concluded that the Panel's error 
vitiated its factual finding in step  3 of the Panel's cigarette consumption analysis in Appendix D that 
there is some econometric evidence suggest ing that the TPP  measures contributed to the reduction 
in wholesale cigarette sales, and therefore cigarette consumption.  
With respect to the Panel's reliance on multicollinearity and non -stationarity, the Appellate  Body 
noted that the Panel partially reli ed on concerns related to non -stationarity and multicollinearity in 
step 3 of both its smoking prevalence and cigarette consumption analyses. As the Appellate  Body 
had already concluded that the Panel's factual finding in step  3 of its cigarette consumptio n analysis 
was vitiated by the Panel's failure to address the Dominican  Republic's assertion concerning tobacco 
costliness, the Appellate  Body did not consider it necessary to further assess the implications for the 
Panel's consumption analysis of the Pane l's errors with respect to non -stationarity and 
multicollinearity. Turning to the Panel's smoking prevalence analysis, the Appellate  Body observed 
that the Panel had relied on multiple reasons to favour Australia's evidence. Accordingly, it followed 
that v itiating the Panel's reliance on multicollinearity had no impact on the Panel's conclusion that 
Australia's smoking prevalence evidence was more reliable than the complainants' evidence. By 
contrast, the Panel's only reason (in its smoking prevalence analy sis) to prefer dummy variables to 
tax level variables was on the basis of non -stationarity. Consequently, vitiating the Panel's reliance 
on non -stationarity meant that an aspect of the Panel's reasoning fell away, in that there was 
no basis for the Panel's  preference for dummy variables over tax levels. However, in the 
Appellate  Body's view, this was not sufficient to call into question the Panel's determination that 
Australia's evidence was more credible than the complainants' evidence, as the Panel also r elied on 
other criteria in reaching this determination. Thus, the Appellate  Body found that vitiating the Panel's 
reliance on non -stationarity and multicollinearity had no impact on the Panel's conclusion that there 
is econometric evidence suggesting that the TPP  measures contributed to the reduction in overall 
smoking prevalence in Australia.  
3.9.1.1.2.2   Clusters of claims that the Appellate  Body addressed jointly based on 
cross -cutting themes  
The Appellate  Body addressed, jointly, clusters of claims, challenging the Panel's analysis of the 
contribution of the TPP  measures to Australia's objective, based on the following cross -cutting 
themes underpinning these claims: (i)  misrepresentation of the Panel findings; (ii)  allocation of the 
burden of proof under Article  2.2 of the TBT  Agreement; (iii)  the Panel's discretion as the trier of 
fact; (iv)  allegations that the Panel disregarded, significantly misrepresented, or distorted evidence; 
(v) connection between the evidence and the arguments before the Panel; (vi)  panels n eed not 
address every argument raised by the parties; (vii)  allegations that the Panel findings were based 
on incoherent reasoning, or lacked a reasoned and adequate explanation; (viii)  allegations 
challenging the Panel's graphical representation of the pa rties' evidence; (ix)  submitting facts that 
are not on the Panel record; and (x)  claims concerning the Panel's statements on the future impact 
of the TPP  measures.  
The Appellate  Body rejected all of these claims by the appellants.  WT/AB/30  
 
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  3.9.1.1.2.3   Claims with respect to wh ich the Appellate  Body exercised judicial economy  
The Appellate  Body took account of the following treaty provisions in its consideration of whether, 
in order to resolve these disputes, it was necessary for the Appellate  Body to address certain 
allegations  of error put forward by the appellants. The Appellate  Body noted that Article  17.12 of 
the DSU provides that the Appellate  Body shall address each of the issues raised in accordance with 
paragraph  6 during the appellate proceeding. At the same time, the A ppellate  Body recognized that 
Article  3.4 of the DSU indicates that recommendations or rulings made by the DSB shall be aimed 
at achieving a satisfactory settlement of the matter, while Article  3.7 of the DSU states that the aim 
of the dispute settlement m echanism is to secure a positive solution to a dispute. For the 
Appellate  Body, these overarching aims of the WTO  dispute settlement mechanism suggest that, 
while the Appellate  Body is required to address  each issue on appeal, it has the discretion not to rule 
on certain claims when doing so is not necessary to resolve the dispute. 
Based on these considerations, the Panel considered it unnecessary to rule on the following claims: 
(i) the Dominican  Republic's claims concerning the Panel's assessment of the e vidence relating to 
the National Tobacco Plain Packaging Tracking Survey (NTPPTS) and International Tobacco Control 
(ITC) datasets in proximal and distal outcomes; (ii)  Honduras' claims relating to the effect of the 
enlarged GHWs on tobacco plain packaging ; and (iii)  the Dominican  Republic's claims concerning the 
Panel's reliance of Figure  C.19 in step  2 of its analysis on smoking prevalence.  
3.9.1.1.2.4   The Panel's overall conclusion on the contribution of the TPP  measures to 
Australia's objective  
On appeal, Honduras claimed that the Panel erred under Article  11 of the DSU by failing to provide 
a reasoned and adequate explanation of how the facts supported the determination made. According 
to Honduras, the Panel's findings relating to the TPP  measures' actual effects o n smoking behaviour 
do not support its overall conclusion that the measures actually "do" make a meaningful contribution 
to Australia's objective. The Dominican  Republic claimed that the Panel erred under Article  11 of the 
DSU by offering internally incohe rent reasoning in relation to whether the actual effects of the 
TPP measures confirmed its findings on the measures' anticipated effects reached on the basis of 
the pre -implementation evidence. The Dominican  Republic added that, if the Appellate  Body were to 
reverse the Panel's findings on the actual effects of the TPP  measures on smoking prevalence and 
consumption, none of the remaining intermediate Panel findings – i.e. neither the Panel's findings 
on the anticipated impact of the TPP  measures nor its fin dings on the actual impact of the measures 
on "proximal" and "distal" outcomes – would be sufficient to sustain its overall conclusion on the 
contribution of the TPP  measures.  
The Appellate  Body recalled that before the Panel, the complainants' main contention was that the 
TPP measures cannot contribute to Australia's objective through the mechanisms identified in the 
TPP Act, and that post -implementation evidence shows that smoking prevalence has not in fact been 
reduced as a resul t of the TPP  measures. Hence, in addressing the parties' arguments, the Panel 
sought to determine the degree to which the TPP  measures, as written and applied, contribute, if at 
all, to Australia's legitimate objective of improving public health by reducin g the use of, and exposure 
to, tobacco products. In this regard, the Panel acknowledged that the fulfilment of this objective 
through the TPP  measures is predicated on their ability to influence smoking behaviours, such as 
initiation, cessation, and relaps e. For this reason, the Panel considered that the impact of the 
measures on such behaviours is, a priori, directly relevant to an assessment of the degree of 
contribution of the measures to this objective. Bearing in mind the TPP  Act's depiction of the int ended 
operation of the TPP  measures, the Panel first assessed the anticipated effect of the TPP  measures, 
based on their design, structure, and expected operation. Thereafter, the Panel assessed the 
evidence relating to the actual effects of the TPP  measur es following their entry into force. 
Specifically, the Panel assessed the impact of the TPP  measures on: (i)  "non-behavioural" or 
"proximal" outcomes (i.e.  the appeal of packaging, the effectiveness of the GHWs, and the ability of 
packaging to mislead cons umers); (ii)  "distal" outcomes (i.e.  intention and behavioural outcomes, 
such as increased intentions to quit and increased quit attempts); and (iii)  smoking behaviour 
(i.e. prevalence and consumption). The Panel also examined the impact of the TPP  measure s on 
illicit trade. In carrying out this task, the Panel considered that it had a duty to examine and consider 
all the evidence before it and to evaluate the relevance and probative force of each piece thereof.  
The Appellate  Body observed that, in its summ ary of the bases for its overall conclusion, the Panel 
emphasized the significance of the pre -implementation evidence pertaining to the anticipated effects WT/AB/30  
 
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  of the TPP  measures, while highlighting the limitations of the post -implementation evidence 
pertaini ng to the actual impact of the TPP  measures. The Appellate  Body understood the Panel to 
have identified the limited time following the entry into force of the TPP  measures, as well as the 
difficulty of isolating the effects of the TPP  measures, as factors undermining the quality of the 
available post -implementation evidence on the actual effects of the TPP  measures. By contrast, the 
Appellate  Body understood the Panel's explanations to suggest that the Panel accorded greater 
probative weight to the pre -implementation evidence pertaining to the anticipated effects of the 
TPP measures. Furthermore, the Appellate  Body recalled the Panel's observation that the impact of 
the TPP  measures may evolve over time. For the Appellate  Body, given that the TPP  measures ha d 
been in force for a very brief period by the time the Panel proceedings got under way, the Panel's 
observation that the impact of the TPP  measures may evolve over time seemed reasonable. Thus, 
in the view of the Appellate  Body, having examined properly a ll the relevant evidence before it, the 
Panel was well within the bounds of its discretion, as the trier of fact, to accord greater probative 
weight to the evidence of the anticipated effects of the TPP  measures than to the evidence of the 
actual effects o f the TPP  measures. For these reasons, the Appellate  Body rejected Honduras' 
assertion that, in reaching its overall conclusion on the contribution of the TPP  measures to 
Australia's objective, the Panel failed to provide a reasoned and adequate explanatio n of the quality 
and probative value of the pre -implementation evidence in light of the post -implementation 
evidence.  
Moreover, the Appellate  Body recalled its finding that the complainants had not demonstrated that 
the Panel failed to make an objective as sessment of the case with respect to its assessment of the 
evidence of the anticipated  effects of the TPP  measures. Likewise, with respect to the actual  effects 
of the TPP  measures, the Appellate  Body recalled that it had not been persuaded by any of the 
appellants' challenges of the Panel's analysis of the post -implementation evidence relating to 
proximal and distal outcomes. Accordingly, the Panel's findings in Appendices A and B to its Report 
stood. As discussed above, the Appellate  Body considered that the Panel, having examined properly 
all the relevant evidence before it, was well within the bounds of its discretion as trier of fact to 
accord greater probative weight to the evidence of the anticipated effects of the TPP  measures than 
to the evidence of  the actual effects of the TPP  measures. Accordingly, for the Appellate  Body, the 
Panel's findings on the anticipated  effects, together with its findings on the actual impact of the 
TPP measures on proximal and distal outcomes supported the Panel's overall  conclusion that the 
TPP measures, in combination with other tobacco -control measures maintained by Australia 
(including the enlarged GHWs introduced simultaneously with TPP), are apt to, and do in fact, 
contribute to Australia's objective of reducing the use of, and exposure to, tobacco products.  
Furthermore, the Appellate  Body highlighted its rejection of the vast majority of the appellants' 
challenges to the Panel's analysis of the actual  impact of the TPP  measures on smoking behaviour. 
That said, the Ap pellate  Body recalled that it had found two errors in the Panel's assessment of the 
post-implementation evidence on smoking prevalence and consumption. First, the Appellate  Body 
found that the Panel erred in its reliance on non -stationarity and multicollin earity. However, the 
Appellate  Body considered that this error by the Panel had no impact on the Panel's ultimate 
conclusion that there is econometric evidence suggesting that the TPP  measures contributed to the 
reduction in overall smoking prevalence in A ustralia. Second, with respect to the Panel's reliance on 
the impact of tobacco costliness to critique the parties' evidence, the Appellate  Body found that the 
Panel erred by failing to address the Dominican  Republic's arguments regarding Australia's 
consu mption model. The Appellate  Body had found that this error fatally undermined, and therefore 
vitiated, the Panel's factual finding, in step  3 of its cigarette consumption analysis, that Australia's 
evidence was more credible than the complainants' evidence , on which the Panel based its conclusion 
that there is some econometric evidence suggesting that the TPP  measures contributed to the 
reduction in wholesale cigarette sales, and therefore cigarette consumption.  
Having found these errors in the Panel's anal ysis, the Appellate  Body took note of Australia's 
contention that, even if the appellants could establish that the Panel exceeded the bounds of its 
discretion as the trier of facts, they would still need to demonstrate that the Panel's errors 
undermined th e objectivity of the Panel's assessment. The Appellate  Body recalled that, as it has 
stated in the past, not every error in the appreciation of evidence, or error of law, constitutes a 
failure on the part of the panel to make an objective assessment of the  matter before it. Rather, to 
succeed in its challenge under Article  11 of the DSU, an appellant must show that the statement 
was material to the panel's legal conclusion. Hence, in order to reverse a panel's finding on the basis 
of Article  11, the Appella te Body must be satisfied that the Panel's errors, taken together or singly, WT/AB/30  
 
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  undermine the objectivity of the Panel's assessment, such that the panel's factual finding no longer 
had a sufficient evidentiary and objective basis.  
Turning back to the facts o f this case, the Appellate  Body observed that the Panel's reasoning with 
respect to smoking prevalence and consumption was formed on the basis of the Panel's conclusions 
in steps  2 and 3 of its smoking prevalence analysis (in Appendix  C) and steps  2 and 3 of its cigarette 
consumption analysis (in Appendix  D). The Panel also considered it relevant that the evidence 
indicated that the TPP  measures had reduced the appeal of tobacco products. The Appellate  Body 
highlighted that, of these five different aspects of its analysis that the Panel relied on in forming its 
conclusion that the post -implementation evidence was consistent with the hypothesized impact of 
the TPP  measures, the appellants had demonstrated that the Panel erred with respect to one aspect 
only, namely, step  3 of the Panel's cigarette consumption analysis. The Appellate  Body further noted 
that smoking prevalence and consumption were merely two metrics through which the Panel 
assessed whether the TPP  measures had had an actual effect on smoking beh aviours (initiation, 
cessation, and relapse). The Appellate  Body considered that the appellants had not demonstrated 
how any errors by the Panel in its assessment of consumption would also demonstrate that the Panel 
erred in its assessment of smoking preva lence.  
The Appellate  Body also took note of Honduras' allegation that, even taking the Panel's findings as 
a given, the Panel's own limited findings relating to the TPP  measures' actual effects on smoking 
behaviour did not support its overall conclusion t hat the measures actually do make a meaningful  
contribution to Australia's objective.  
The Appellate  Body recalled that the Panel's primary conclusion and rejection of the main claims by 
the complainants stated that: (i)  the complainants had not demonstrat ed that the TPP  measures are 
not apt  to make a contribution to Australia's objective of improving public health by reducing the 
use of, and exposure to, tobacco products; but rather (ii)  the evidence before the Panel, taken in its 
totality, supported the v iew that the TPP  measures, in combination with other tobacco control 
measures maintained by Australia (including the enlarged GHWs introduced simultaneously with 
TPP), are apt to, and do in fact , contribute  to Australia's objective of reducing the use of, and 
exposure to, tobacco products. The Appellate  Body agreed with the participants that both of these 
findings, read together, are a rejection of the complainants' main proposition that the TPP  measures 
are not apt to, nor do they make a contribution to Au stralia's objective of reducing the use of, and 
exposure to, tobacco products.  
However, the Appellate  Body made a distinction between the conclusion above and a later statement 
in the Panel's overall conclusion in which the Panel found that, taken as a who le, the evidence before 
the Panel supported the view that, as applied in combination with the comprehensive range of other 
tobacco control measures maintained by Australia and not challenged in these proceedings, the 
TPP measures are apt to, and do, make a  meaningful contribution  to Australia's objective of reducing 
the use of, and exposure to, tobacco products. The Appellate  Body did not consider the Panel's 
addition of the word "meaningful" to be happenstance. Instead, the Appellate  Body considered that 
this conclusion spoke to the question of the "degree" of the contribution that the TPP  measures, in 
concert with Australia's other tobacco control measures, make to Australia's objective. In this regard, 
the Appellate  Body understood the Panel to have concl uded that the TPP  measures are apt to, and 
do, make a meaningful contribution  to Australia's objective of reducing the use of, and exposure to, 
tobacco products, as a gateway to addressing the complainants' alternative proposition – i.e. that, 
even if the Panel were to conclude that the TPP  measures make a contribution to Australia's 
objective, the TPP  measures would still be more trade -restrictive than necessary because various 
alternative measures would be available to Australia that are less trade -restri ctive and could achieve 
an equivalent degree of contribution to Australia's objective. Hence, given the specific circumstances 
of this case and the manner in which the complainants put forward their claims before the Panel, 
the Appellate  Body was of the vi ew that the degree of the contribution of the TPP  measures 
(i.e. whether the contribution is "meaningful") was pertinent only to the Panel's comparison of the 
trade restrictiveness of, and the degree of achievement of Australia's objective by, the 
TPP meas ures, with that of the proposed possible alternative measures that may be reasonably 
available and that are less trade -restrictive than the TPP  measures – taking account of the risks 
non-fulfilment would create. Accordingly, the Appellate  Body found that i n the specific circumstances 
of this case, the Panel's overall conclusion on the contribution of the TPP  measures to Australia's 
objective was not affected by the adjective "meaningful".  WT/AB/30  
 
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  For these reasons, the Appellate  Body found that the appellants had n ot demonstrated that the Panel 
erred in its overall conclusion on the contribution of the TPP  measures to Australia's objective.  
3.9.1.2   The Panel's findings concerning the trade restrictiveness of the TPP  measures  
The Panel emphasized that assessing the trade re strictiveness of a measure entailed examining the 
degree to which it has a limiting effect on international trade. The Panel considered that the manner 
in which an assertion of trade restrictiveness is substantiated may vary from case to case. The Panel 
had further noted that how the existence and extent of trade restrictiveness is to be demonstrated 
with respect to technical regulations that are not alleged to be discriminatory will depend on the 
circumstances of a given case. In the absence of any allegat ion of de jure  restriction on the 
opportunity for imports to compete on the market or of any alleged discrimination in this respect 
(between imports or between imported and domestic products), the Panel had considered that a 
sufficient demonstration will b e required to establish the existence and extent of any limiting effect 
on international trade. The Panel had added that a demonstration of trade restrictiveness could be 
based on qualitative or quantitative arguments and evidence, or both, including evide nce relating to 
the characteristics of the challenged measure as revealed by its design and operation.  
Applying this standard to the facts of these disputes, the Panel had agreed with the complainants 
that the TPP  measures would limit the opportunity for p roducers to differentiate their products. 
However, the Panel had considered that it needed to be shown how such effects on the conditions 
of competition in the market amount to a limiting effect on international trade. The Panel had 
proceeded to assess the  complainants' arguments relating to: (i)  the effects of the TPP  measures on 
barriers to entry into the Australian market; (ii)  the effects of the TPP  measures on the volume and 
value of trade in tobacco products; (iii)  compliance costs arising from the TP P measures; and 
(iv) penalties under the TPP  measures. The Panel had rejected most of these arguments but 
concluded that the TPP  measures are trade -restrictive insofar as they reduce the volume of imported 
tobacco products on the Australian market, thereby  having a limiting effect on trade. The Panel had 
also considered it plausible that the measures could, over time, affect the overall value of tobacco 
imports, but did not consider that the evidence demonstrated that to have occurred to date.  
On appeal, H onduras claimed that the Panel erred in its interpretation of Article  2.2 by failing to rely 
on a legal standard based on the conditions of competition and competitive opportunities. The 
Dominican  Republic considered that the Panel correctly interpreted Ar ticle 2.2 such that the test of 
trade restrictiveness is focused on the competitive opportunities of imported products. Both the 
Dominican  Republic and Honduras considered that the Panel erred in its application of Article  2.2 of 
the TBT  Agreement by faili ng to find that a reduction in the opportunity for products to differentiate 
on the basis of brands sufficed to demonstrate the trade restrictiveness of the TPP  measures. The 
appellants also claimed that the Panel erred in its application of Article  2.2 in  determining the effect 
of the TPP  measures on the value of imported tobacco products. The Dominican  Republic also 
claimed that the Panel acted inconsistently with Article  11 of the DSU in finding that the complainants 
had not shown that the decrease in sa les of high -end cigarettes relative to low -end cigarettes reveals 
"only" or "exclusively" consumer downtrading, as opposed to the results of other market 
phenomena.  
3.9.1.2.1   Claims concerning the Panel's interpretation of Article  2.2 
Honduras argued that the Panel erred in its interpretation of Article  2.2 of the TBT  Agreement by 
failing to rely on a legal standard based on the conditions of competition and competitive 
opportunities. According to Honduras, the Panel based its analysis on whether the TPP  measures are  
discriminatory and favoured a trade effects test based on the extent to which the measures actually 
reduced the volume of sales and thus of imports. The Dominican  Republic argued that the Panel 
articulated the correct interpretation of "trade -restrictive" , within the meaning of Article  2.2, when 
it explained that prior assessments of trade restrictiveness were focused on whether a technical 
regulation had a limiting effect on the competitive opportunities available to imported products. The 
Dominican  Repub lic considered that, had the Panel properly applied the legal standard of trade 
restrictiveness, it would have found that the loss of competitive opportunities for tobacco products 
arising from the design, structure, and intended operation of the TPP  measu res constitutes trade 
restrictiveness, within the meaning of Article  2.2 of the TBT  Agreement.  WT/AB/30  
 
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  The Appellate  Body disagreed with the appellants' characterization of the Panel's interpretative 
findings as indicating that a determination of trade restrictive ness is focused on assessing the 
conditions of competition or competitive opportunities of products. The Appellate  Body further noted 
a significant difference between, on the one  hand, panels and the Appellate  Body's reliance on the 
concept of conditions o f competition in the context of Article  2.2 in prior disputes and, on the other 
hand, the appellants' reliance on that concept in these disputes. The Appellate  Body considered that 
a showing of a reduction in the competitive opportunities of imported produ cts is only relevant to 
the assessment of trade restrictiveness to the extent that it reveals a limiting effect on international 
trade. For instance, where a measure is shown to reduce the competitive opportunities of imported 
products as a group, from a M ember, vis -à-vis competing domestic products, that would suffice for 
a panel to conclude that the measure is indeed trade -restrictive. The Appellate  Body noted that the 
Panel's articulation of the legal standard under Article  2.2 reflected this understandi ng. 
The Appellate  Body further observed that the appellants appear to consider that a showing of a 
reduction in the competitive opportunities of some imported products vis -à-vis all other products in 
the market, including other imported products from the s ame Member , would  suffice to demonstrate 
trade restrictiveness. In this respect, the Appellate  Body agreed with the Panel that the mere fact of 
a modification of the conditions of competition in a market would not necessarily suffice for a panel 
to conclud e on the degree of trade restrictiveness of a particular technical regulation. The 
Appellate  Body noted the Panel's finding that, when considering the effects of a technical regulation 
(including whether the technical regulation has a limiting  effect on tr ade), consideration might be 
given to both import -enhancing and import -reducing effects on the trade of other Members. The 
Appellate  Body did not see how, in a situation where a measure merely modifies the conditions of 
competition of individual producers within a market, and a panel is unable to anticipate the impact 
of the measure on the conditions of competition for imported products, as a group, from a Member,  
the panel could conclude that the measure would necessarily have a limiting effect on internat ional 
trade.  
The Appellate  Body also disagreed with the appellants that the Panel effectively required that, in 
situations where a non-discriminatory  measure is challenged under Article  2.2, it is necessary for a 
complainant to provide evidence of actual t rade effects in order to demonstrate the trade 
restrictiveness of the measure. The Appellate  Body further highlighted that, in certain circumstances, 
a measure's design and structure may be insufficient for a panel to anticipate whether and to what 
extent the measure will have a limiting effect on international trade, and emphasized that there is 
no obligation on a panel to cease its analysis of the trade restrictiveness of a measure after 
examining only a subset of the evidence.  
3.9.1.2.2   Claims concerning the Panel 's application of Article  2.2 
3.9.1.2.2.1   The reduction in the opportunity to differentiate on the basis of brands  
The appellants argued that the Panel erred in its application of Article  2.2 of the TBT  Agreement by 
finding that, although the TPP  measures reduced the opportunity for products to differentiate on the 
basis of brands, this did not demonstrate the trade restrictiveness of the TPP  measures. The 
appellants also argued that the Panel erred in its application of Article  2.2 by requiring the 
complainants to add uce evidence of actual trade effects in order to find that the TPP  measures are 
trade -restrictive.  
The Appellate  Body noted that the Panel considered that it was not able to determine, exclusively 
on the basis of its examination of the design and structure  of the TPP  measures, whether the 
TPP measures are trade -restrictive. The Appellate  Body observed that, in forming this conclusion, 
the Panel highlighted that brand differentiation is valuable in international trade because 
differentiation engenders consum er loyalty and increases consumers' willingness to pay. The 
Appellate  Body considered that this indicated that the impact of the reduction in the opportunity to 
differentiate would be different for different producers depending on the specific degree of cu stomer 
loyalty associated with different producers' brands, such that while a reduction in the opportunity to 
differentiate might harm the competitive opportunities of some products, it would  necessarily  seem 
to improve the competitive opportunities of oth er competing products. The Appellate  Body therefore 
concluded that the appellants did not demonstrate that the Panel erred by failing to find that the 
reduction in the opportunity to differentiate between different products caused by the TPP  measures 
neces sarily amounts to a limiting effect on international trade.  WT/AB/30  
 
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  The Appellate  Body also disagreed with the appellants that the Panel required evidence of actual 
trade effects or applied a higher evidentiary burden on the basis that the TPP  measures were not 
shown to be discriminatory. The Appellate  Body noted that the reduction in the opportunity to 
brand -differentiate was insufficient for the Panel to anticipate whether the net effect of the 
TPP measures would be trade -restrictive. For this reason, the Panel p roceeded to examine the 
additional evidence and arguments adduced by the parties. The Appellate  Body also highlighted that 
the Panel did not require such additional evidence or argumentation to be in the form of actual trade 
effects.  
3.9.1.2.2.2   The effect of the TPP  measures on the value of imported products  
The appellants argued that the Panel erred by concluding that the TPP  measures would not lead to 
a reduction in the value of imported products, even though (in the appellants' view) the qualitative 
evidence indica ted that such an effect would occur in the future. The Dominican  Republic also argued 
that: (i)  the Panel erred by rejecting the argument that the TPP  measures reduced the value of 
imported products through downtrading (i.e.  downward substitution from high er- to low -priced 
brands) on the basis that the TPP  measures were not the exclusive cause of downward substitution 
by consumers; (ii)  any separate reasons that the Panel had for rejecting the complainants' 
downtrading argument were also in error; and (iii)  the Panel erred by taking into account the reaction 
of producers to the TPP  measures.  
 
Regarding the appellants' argument that the qualitative evidence indicated that the TPP  measures 
would reduce the value of imported products in the future, the Appellate  Body highlighted that the 
Panel took into account the future impact of the TPP  measures on value. The Appellate  Body 
observed, however, that the Panel did not consider that the evidence was sufficient to conclude that 
the TPP  measures did, or nec essarily would, lead to a reduction in value. Recalling that there is no 
obligation on a panel to base its assessment of the degree of trade restrictiveness on a subset of 
the relevant evidence, and bearing in mind that the weighing and balancing of the ev idence was the 
province of the Panel in its role as factfinder, the Appellate  Body did not consider that this aspect of 
the appellants' arguments demonstrated that the Panel erred in applying Article  2.2. 
As to the Dominican  Republic's arguments regarding the Panel's findings on downtrading, the 
Appellate  Body considered that these arguments were based on a misreading of the Panel  Report by 
the Dominican  Republic. The Appellate  Body understood that the Panel did not dismiss the 
appellants' downtrading argum ent on the basis of causation, but rather because the evidence did 
not show that the TPP  measures would maintain or increase cigarette prices. The Appellate  Body 
also rejected the Dominican  Republic's arguments, in the alternative, that the Panel's reasoni ng in 
this respect was in error. Finally, the Appellate  Body considered that the Panel did not err by taking 
into account the reaction of producers to the TPP  measures. The Appellate  Body considered that, by 
looking at the impact of the TPP  measures on pri ces, the Panel was effectively examining the relevant 
facts in order to conclude on the degree of trade restrictiveness of the TPP  measures, based on the 
complainants' own arguments that the TPP  measures led to a decrease in value.  
3.9.1.2.3   Claims under Article  11 of the DSU  
The Dominican  Republic argued that the Panel failed to make an objective assessment of the matter 
as required under Article  11 of the DSU in finding that "the complainants had not shown that the 
decrease in sales of high -end cigarettes relative to low -end cigarettes reveals 'only' or 'exclusively' 
consumer downtrading, as opposed to the results of other market phenomena." The 
Dominican  Republic referred specifically to the Panel's finding that part of the reduction in the ratio 
of sales was due t o the overall reduction in the total wholesale sales volume following and due to 
the introduction of the TPP  measures.  
The Appellate  Body understood that the Panel's finding that the reduction in the ratio of higher - to 
low-priced cigarette wholesale sales  represented both downward substitution caused by the 
TPP measures as well as the overall reduction in the total wholesale sales volume following and due 
to the introduction of the TPP  measures and enlarged  GHWs was essentially an unnecessary finding 
of fact by the Panel. The Appellate  Body also noted that the Panel failed to indicate any basis for this 
factual finding. Given that the Panel's unnecessary factual finding was not material to the Panel's WT/AB/30  
 
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  conclusions with respect to trade  restrictiveness, and l acked any basis in the Panel  Report, the 
Appellate  Body mooted that finding. Having mooted the relevant finding upon which the 
Dominican  Republic's claims under Article  11 were based, the Appellate  Body did not consider it 
necessary to address those claims . 
3.9.1.3   The Panel's findings concerning two of the proposed alternative measures  
Before the Panel, the complainants had proposed four alternative measures that they considered as 
being less trade -restrictive than the TPP  measures while also being capable of maki ng an equivalent 
contribution to Australia's objective: (i)  an increase in the minimum legal purchasing age (MLPA) for 
tobacco products in Australia, from 18 to 21  years; (ii)  an increase in taxation of tobacco products 
in Australia; (iii)  improvements to,  or effective, social marketing campaigns in Australia; and (iv)  a 
pre-vetting mechanism for tobacco packaging. The Panel rejected all four of these alternative 
measures.  
On appeal, the appellants challenged the Panel findings with respect to two of these  alternative 
measures only: (i)  an increase in the MLPA for tobacco products in Australia; and (ii)  an increase in 
taxation of tobacco products in Australia. The appellants requested the Appellate  Body to reverse 
the Panel's findings that these two alterna tive measures were not reasonably available alternative 
measures that would be less trade -restrictive than the TPP  measures while making an equivalent 
contribution to Australia's legitimate objective. Specifically, the appellants claimed that the Panel 
had erred, in its application of Article  2.2 of the TBT  Agreement, in finding that the complainants 
had failed to demonstrate that: (i)  each of the two alternative measures would be less 
trade -restrictive  than the TPP  measures; and (ii)  each alternative measu re would make a 
contribution to Australia's objective equivalent  to that of the TPP  measures. The Dominican  Republic 
also raised claims under Article  11 of the DSU.  
3.9.1.3.1   Trade restrictiveness of the alternative measures  
The appellants claimed that the Panel err ed under Article  2.2 of the TBT  Agreement, in finding that 
the complainants had not demonstrated that the two alternative measures at issue would be less 
trade -restrictive than the TPP  measures, because those conclusions were based on the Panel's 
erroneous  findings, made earlier in its Report, regarding the degree of trade restrictiveness of the 
TPP measures. According to the appellants, in its assessment of the trade restrictiveness of the 
TPP measures, the Panel adopted too narrow an understanding of the concept of "trade 
restrictiveness", and, rather than focusing on the measures' impact on the competitive opportunities 
for tobacco products based on their design, structure, and intended operation, it required empirical 
evidence of the TPP  measures' actual  trade effects. The appellants considered that, had the Panel 
properly found that the TPP  measures are trade -restrictive in that they, by design, reduce the 
competitive opportunities arising from brand differentiation, it would have reached a different 
conclusion, namely, that the TPP  measures are more trade -restrictive than the alternative measures 
because the latter measures do not similarly limit competitive opportunities for tobacco products.  
The Appellate  Body recalled its finding, with respect to the Panel's findings on trade restrictiveness 
of the TPP  measures, that the appellants had not demonstrated that the Panel erred in its 
interpretation or application of Article  2.2 by rejecting, in the particular circumstances of these 
disputes, the complainan ts' propositions that: (i)  the reduction in brand differentiation (i.e.  a 
modification of the competitive environment in the tobacco -product market), in and of itself, sufficed 
to establish the requisite limiting effect on international trade; and (ii)  the TPP measures are 
trade -restrictive due to their impact on the overall value of imported tobacco products. The 
Appellate  Body recalled that the Panel had found that the Australian market is supplied entirely by 
imported tobacco products. The Appellate  Body also highlighted the Panel's conclusion that the 
TPP measures are trade -restrictive insofar as they affect the volume of imported tobacco products. 
Thus, the Appellate  Body agreed with the Panel's determination that an alternative measure that is 
capable of making a degree of contribution to the objective of reducing the use of, and exposure to, 
tobacco products equivalent to that of the TPP  measures would be as trade -restrictive as the 
TPP measures, as far as the import volume is concerned. The Appellate  Body considered that the 
appellants had not explained specifically why this is not the case with respect to the two alternative 
measures in question. Under these circumstances, the Appellate  Body did not see a sufficient basis 
to find that the Panel had er red in finding that neither alternative measure was demonstrated to be 
less trade -restrictive than the TPP  measures.  WT/AB/30  
 
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  3.9.1.3.2   Relative contribution of the alternative measures  
The appellants claimed that the Panel erred under Article  2.2 of the TBT  Agreement in fin ding that 
the complainants had failed to demonstrate that each of the two alternative measures would make 
a contribution to Australia's objective equivalent to the contribution of the TPP  measures.  
The Appellate  Body noted that all participants agreed with  the Panel's formulation of the legal 
standard, applicable to an assessment of "equivalence", i.e.  that what is relevant for such an 
assessment is the overall degree of contribution that the technical regulation makes to the objective 
pursued rather than a ny individual isolated aspect or component of contribution, and that a proposed 
alternative measure may achieve an equivalent degree of contribution in ways different from the 
technical regulation at issue and there is a margin of appreciation in this asse ssment. The 
participants also agreed that the standard by which to assess equivalence remains the same where 
the challenged measure is implemented as part of a responding Member's comprehensive policy to 
address a multifaceted problem, such as smoking. The  Appellate  Body also recalled that the Panel 
had determined that the objective of the TPP  measures to improve public health by reducing the use 
of, and exposure to, tobacco products. In this regard, the Appellate  Body took note of the Panel's 
rejection of Australia's proposition that the relevant objective also encompasses what Australia 
referred to as the three specific objectives  or mechanisms  of the TPP  measures, namely: (i)  reducing 
the appeal of tobacco products; (ii)  increasing the effectiveness of GH Ws; and (iii)  reducing the 
ability of packages to mislead consumers about the harms of smoking.  
The Appellate  Body also noted that the Panel assessed the degree of contribution that the 
TPP measures and each of the alternative measures make to the above ob jective, and that, in the 
specific circumstances of these proceedings, the Panel decided to assess the respective degrees of 
contribution of the challenged and alternative measures in qualitative, rather than quantitative, 
terms. In each instance, the Pane l qualified the measure's contribution by using the same adjective 
"meaningful". However, the Panel ultimately concluded that the complainants had failed to 
demonstrate that the contribution of each alternative measure would be equivalent to that of the 
TPP measures. Under these circumstances, the Appellate  Body found it reasonable to understand 
the Panel's suggestion – that the ("meaningful") degree to which each alternative measure would 
be apt to contribute to Australia's objective – as being similar or comparable to the ("meaningful") 
degree to which the TPP  measures contribute to the same objective. Indeed, having reviewed how 
the Panel reached its finding of a "meaningful" contribution in each instance, the Appellate  Body saw 
no clear indication in the  Panel's analysis that the overall degree of reduction in the use of, and 
exposure to, tobacco products achieved by each alternative measure (in addition to any reduction 
attributable to Australia's other existing tobacco control measures) would be materia lly smaller than 
that achieved by the TPP  measures, such that the level of protection pursued by the TPP  measures 
and Australia's other tobacco control measures necessarily goes beyond what could reasonably be 
achieved with one of the alternative measures used as a substitute for the TPP  measures.  
While noting that the Panel's specific reasoning for rejecting equivalence differed slightly for the 
two alternative measures, the Appellate  Body generally shared the appellants' views that the Panel 
referred to t he following two points in each instance: (i)  the alternative measures do not address 
the design features of tobacco packaging that the TPP  measures seek to address; and (ii)  this would 
leave one aspect of Australia's comprehensive approach to tobacco cont rol unaddressed, and reduce 
the "synergies" between the different components of that policy. The Appellate  Body also agreed 
with the appellants that the two points mentioned by the Panel in rejecting equivalence did not 
reflect the correct legal standard u nder Article  2.2. Specifically, with respect to the first point 
(i.e. that the alternative measures do not address the design features of tobacco packaging), the 
Appellate  Body recalled that what is relevant to an assessment of equivalence is the overall d egree 
of contribution that the technical regulation makes to the objective pursued, and that a proposed 
alternative measure may achieve an equivalent degree of contribution in ways different from the 
technical regulation at issue.  
With respect to the secon d point (i.e.  that substituting one of the alternative measures for the 
TPP measures would undermine the comprehensiveness of Australia's policy and reduce the 
synergies), the Appellate  Body considered that, even in the context of a comprehensive policy, w hat 
is relevant for assessing equivalence remains the overall degrees of contribution that the challenged 
and alternative measures make to Australia's objective. Therefore, the Appellate  Body posited that 
if the alternative measure in question is found apt  to achieve, in addition to any reduction in smoking 
attributable to Australia's other existing tobacco control measures, a degree of reduction in smoking WT/AB/30  
 
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  similar or comparable to the degree of reduction achieved by the TPP  measures, then whether the 
TPP measures form part of Australia's broader policy and whether their contribution arises partly 
from synergistic effects with the other components of that policy should not have been a decisive 
consideration in determining equivalence.  
For these reasons, to the extent that the Panel suggested that each alternative measure may be 
considered apt to achieve a similar or comparable degree of "meaningful" overall reduction in 
smoking in Australia to that of the TPP  measures, and yet its contribution would not be e quivalent 
because of its failure to address the design features of tobacco packaging that the TPP  measures 
seek to address in the context of Australia's broader tobacco control policy, the Appellate  Body found 
that the Panel erred in its application of Art icle 2.2 of the TBT  Agreement. However, the 
Appellate  Body cautioned that its conclusion was made in the particular circumstances of these 
disputes, and that it was reached on the basis of the uncontested Panel finding that the relevant 
objective pursued b y the TPP  measures did not encompass the specific objectives , or mechanisms , 
of addressing design features of tobacco packaging. The Appellate  Body also highlighted the fact 
that Australia had not appealed the Panel's findings that both alternative measure s were reasonably 
available to Australia. Thus, the Appellate  Body warned that it should not be extrapolated, from its 
conclusion, that an increased MLPA or taxation on tobacco products would necessarily qualify as a 
reasonably available alternative measur e capable of making a contribution equivalent to that of a 
plain packaging measure in another case or in another jurisdiction.  
3.9.1.3.3   Claims under Article  11 of the DSU  
The Dominican  Republic raised two claims under Article  11 of the DSU. First, with respect to t he 
Panel's analysis of whether each of the two alternative measures would make an equivalent 
contribution to Australia's objective, the Dominican  Republic claimed that the Panel failed to make 
an objective assessment of the matter under Article  11 in findi ng that the design features of tobacco 
packaging that convey messages would not be addressed at all in the absence of the TPP  measures. 
The Appellate  Body highlighted that it had already addressed the Dominican  Republic's overlapping 
claim of error under A rticle 2.2 of the TBT  Agreement that similarly challenged the Panel's reference 
to the failure of the alternative measures to address the design features of tobacco packaging. For 
this reason, the Appellate  Body considered it unnecessary to address this as pect of the 
Dominican  Republic's claim under Article  11 of the DSU.  
Second, the Dominican  Republic challenged the Panel's findings regarding the trade restrictiveness 
and relative contribution of an increase in the MLPA, arguing that the panel's reasoning was 
incoherent, or internally inconsistent, in its discussion of the potential future effects of an increased 
MLPA. The Appellate  Body agreed with the Dominican  Republic that the Panel had referred to certain 
future effects in its analysis of the trade res trictiveness of the proposed MLPA increase from 18 to 
21 years. However, the Appellate  Body disagreed with the Dominican  Republic's assertion that the 
Panel neglected or denied such future effects in its analysis of the contribution of an increase in the 
MLPA. On the contrary, when reaching its finding that this alternative measure would be apt to make 
a "meaningful" contribution to Australia's objective, the Panel took account of evidence indicating 
that raising the MLPA will not only likely immediately im prove the health of people within the targeted 
age group, but also reduce intermediate and long -term adverse health effects as the initial birth 
cohorts, affected by the policy change, grow into adulthood. Therefore, the Appellate  Body saw 
no inconsistency  in the Panel's treatment of future effects in its assessment of the trade 
restrictiveness, on the one hand, and contribution, on the other hand, of an increase in the MLPA. 
Accordingly, the Appellate  Body found that the Dominican  Republic had not demonstr ated that the 
Panel failed to make an objective assessment of the matter before it, in accordance with Article  11 
of the DSU.  
3.9.1.3.4   Conclusion on the alternative measures  
In light of the foregoing, the Appellate  Body concluded that the Panel erred in finding tha t the 
complainants failed to demonstrate that each of the two alternative measures would be apt to make 
a contribution equivalent to that of the TPP  measures. At the same time, the Appellate  Body recalled 
its conclusion that the Panel did not err in findin g that the complainants failed to demonstrate that 
these two alternative measures are less trade -restrictive than the TPP  measures. Consequently, 
despite its conclusion that the Panel erred in its application of Article  2.2 with respect to the 
equivalence of the contribution of each alternative measure, the Appellate  Body concluded that the 
Panel's ultimate findings, that the complainants did not demonstrate that an increase in the MLPA WT/AB/30  
 
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  and an increase in taxation would each be a less trade -restrictive alte rnative to the TPP  measures 
that would make an equivalent contribution to Australia's objective, stand.  
3.9.1.4   Appellate  Body's overall conclusion under Article  2.2 of the TBT  Agreement  
Based on the foregoing, the Appellate  Body upheld  the Panel's conclusion that  the complainants had 
not demonstrated that the TPP  measures are more trade -restrictive than necessary to fulfil a 
legitimate objective, within the meaning of Article  2.2 of the TBT  Agreement.  
3.9.1.5   Separate opinion of one Division  Member  
One Member of the Division concurred with the majority's ultimate findings and conclusions with 
respect to Article  2.2. However, this Member considered that it was unnecessary, and therefore 
inadvisable, for purposes of resolving these disputes, for the ma jority to have considered in detail 
the appellants' claims regarding the Panel's assessment of the TPP  measures' contribution to 
Australia's objective.  
This Member recalled that the complainants' main argument before the Panel was that the 
TPP measures ar e more trade -restrictive than necessary because they are trade -restrictive and they 
are not apt to, and do not, contribute to Australia's legitimate public health objective. In the 
alternative, the complainants argued that, even assuming that the TPP  measu res contribute to 
Australia's legitimate public health objective, they are still more trade -restrictive than necessary 
because there are alternative measures that are reasonably available to Australia and that would be 
less trade -restrictive while making a n equivalent contribution to the objective.  
This Member further noted that, in determining the degree of contribution of the TPP  measures to 
Australia's objective, the Panel made two findings. First, the Panel found that the complainants had 
failed to dem onstrate that the TPP  measures are not apt to make a contribution to Australia's 
objective. Second, the Panel found that the evidence, taken in its totality, supported the view that 
the TPP  measures are apt to, and do in fact, contribute to Australia's obj ective. This Member noted 
that the appellants raised no arguments concerning the Panel's first finding and considered that the 
appellants had failed to demonstrate that any errors undermining the second finding would 
necessarily vitiate the Panel's first f inding.  
Since the Panel's first finding was undisturbed on appeal, and since measures are presumed to be 
WTO-consistent until shown otherwise, this Member considered that the TPP  measures are presumed 
to be at least capable of making a contribution to Australia's objective, whether or not the Panel 
erred in forming the second finding. Consequently, this Member concluded that  the appellants had 
failed to demonstrate that the Panel erred in rejecting their principal argument and, with resp ect to 
their alternative argument, whether or not the proposed alternatives make an equivalent 
contribution to the TPP  measures, the appellants did not present an alternative that is less 
trade -restrictive than the TPP  measures. Consequently, in the view o f this Member, it was 
unnecessary, for purposes of resolving these disputes, to consider in detail the appellants' claims 
regarding the contribution of the TPP  measures to Australia's objective.  
This Member also disagreed with the majority's intermediate f inding that, by introducing in its 
Interim Report econometric analyses that had not been tested with the parties, the Panel failed to 
observe due process in a way that constitutes a violation of Article  11 of the DSU. According to this 
Member, the Panel's reliance on multicollinearity and non -stationarity to test the robustness of the 
parties' evidence was part of the Panel's reasoning, with respect to which a panel enjoys considerable 
discretion. In this Member's view, the parties submitted to the Panel a large amount of econometric 
evidence, and it was appropriate for the Panel to assess the probative value of that evidence. 
Moreover, this Member observed that the complainants had an opportunity to raise their concerns 
regarding the Panel's analysis of mul ticollinearity and non -stationarity at the interim review stage. 
Since they did not do so, this Member disagreed with their claim that the Panel denied them due 
process by not "giving the parties any opportunity whatsoever to comment".  
3.9.2   Claims relating to t he Panel's findings under Article  16.1 of the TRIPS  Agreement  
The Panel understood the complainants to argue that, by prohibiting the use of certain 
tobacco -related trademarks on tobacco packaging and tobacco products, the TPP  measures erode WT/AB/30  
 
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  their distinct iveness, thereby constraining trademark owners' ability to exercise their rights under 
Article  16.1. For the Panel, this argument by the complainants hinged on whether a reduction in the 
distinctiveness of a registered trademark affects the rights that Mem bers must provide to the 
trademark owner under Article  16.1. The Panel found that Article  16.1 provides only for a registered 
trademark owner's right to prevent certain activities by unauthorized third parties under the 
conditions set out in the first sent ence of Article  16.1. The Panel found that if the activities of an 
unauthorized third party meet the conditions set out in the first sentence of Article  16.1, then the 
trademark owner must have the right under a Member's domestic law to prevent such activi ties. 
Therefore, the Panel found that the essence of the Article  16.1 obligation is to ensure that rights are 
available to obtain relief against such infringing acts. In the Panel's view, it follows that, in order to 
show that the TPP  measures are inconsis tent with Article  16.1, the complainants would have to 
demonstrate that, under Australia's domestic law, the trademark owner does not have the right to 
prevent third -party activities that meet the conditions set out in that provision. In the Panel's view, 
the text of Article  16.1 does not formulate any other right of the trademark owner, nor does it 
mention the use of the registered trademark by its owner. Thus, the Panel agreed with the parties 
that Article  16.1 does not establish a trademark owner's right to use  its registered trademark.  
Honduras requested the Appellate  Body to reverse the Panel's finding that Honduras did not 
demonstrate that the TPP  measures are inconsistent with Article  16.1 of the TRIPS  Agreement, on 
the grounds that: (i)  the Panel's interpretation of the "rights conferred" under Article  16.1 was in 
error; (ii)  the Panel erred in its application of Article  16.1 to the TPP  measures; and (iii)  the Panel 
failed to comply with its obligation under Article  11 of the DSU to make an objective  assessment of 
the matter.  
At the outset, the Appellate  Body recognized the unique nature of the TRIPS  Agreement, observing 
that the TRIPS  Agreement addresses intellectual property rights, which are private rights  held by 
natural or legal persons. In addit ion, the TRIPS  Agreement derives a significant proportion of its 
content from pre -existing international intellectual property agreements or conventions that were 
negotiated outside the GATT  1947/WTO framework. Moreover, the TRIPS  Agreement, as an 
agreemen t addressing intellectual property rights, is principally concerned with the creation and 
protection of exclusive  private rights. By definition, these exclusive rights act to restrict commercial 
activity and require an active intervention of government to enforce these restrictions. The 
Appellate  Body recalled that, as the panels in EC – Trademarks and Geographical Indications 
(Australia)  and EC – Trademarks and Geographical Indications (US ) stated, the TRIPS  Agreement 
does not generally provide for the gra nt of positive rights to exploit or use certain subject matter, 
but rather provides for the grant of negative rights to prevent certain acts.  The Appellate  Body 
observed that Article  1.1 imposes an obligation on Members to "give effect to the provisions of " the 
TRIPS  Agreement. Specifically, as regards trademarks, Members have an obligation to give effect to 
the provisions of Articles  15-21 of the TRIPS  Agreement.  
With respect to Honduras' claim that the Panel erred in its interpretation of Article  16.1, th e 
reasoning underpinning Honduras' arguments, made in support of this claim, focused on 
three  central and interconnected themes: (i)  Article  16.1 of the TRIPS  Agreement (read together 
with Articles  15, 17, 19, and 20 of the TRIPS  Agreement) confers upon th e owner of a registered 
trademark the right to use  its trademark; (ii)  the distinctiveness of a trademark and the "likelihood 
of confusion" in Article  16.1 are closely related concepts that impose a requirement on Members to 
protect the distinctiveness of a trademark through use; and (iii)  pursuant to Article  16.1, Members 
must guarantee a minimum level of protection relating to the distinctiveness and use of trademarks, 
which then guarantees particular outcomes.  
The Appellate  Body observed that while Artic le 15 defines the subject matter that may be protected 
as a trademark and the rules governing the eligibility for registration of a sign as a trademark, 
Article  16 addresses the rights conferred on a trademark owner following such registration. 
Specificall y, Article  16.1 grants a trademark owner the exclusive right to preclude unauthorized 
third parties from using, in the course of trade, identical or similar signs for goods or services that 
are identical or similar to those with respect to which the tradem ark is registered, where such 
unauthorized use would result in a "likelihood of confusion". In the Appellate  Body's view, the 
likelihood of confusion, which may result from the conduct of unauthorized third parties identified in 
Article  16.1, relates to th e distinguishing function of the trademark in question. Nonetheless, while 
the Appellate  Body agreed with Honduras that the risk of a "likelihood of confusion" in Article  16.1 
relates to the distinguishing function of a trademark, the Appellate  Body cautio ned against 
extrapolating too broadly from this relationship. In this regard, the Appellate  Body indicated that it WT/AB/30  
 
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  had not come across any language in the TRIPS  Agreement that endorsed Honduras' position that 
the purpose  of the exclusive right articulated in Article  16.1 is to allow a trademark owner to protect 
the distinctiveness  of the trademark through the trademark owner's continued use of that trademark. 
Likewise, none of the provisions of the Paris Convention (1967), which are incorporated by referenc e 
into the TRIPS  Agreement, grant a trademark owner a positive right to use its trademark, or a right 
to protect the distinctiveness of that trademark through use.  
In sum, the Appellate  Body found that Article  16.1 of the TRIPS  Agreement grants a trademark  
owner the exclusive right to preclude unauthorized third parties from using, in the course of trade, 
identical or similar signs for goods or services that are identical or similar to those with respect to 
which the trademark is registered. The owner of a registered trademark can exercise its "exclusive 
right" as against an unauthorized third party but not against the WTO  Member in whose territory 
the trademark is protected. Neither the TRIPS  Agreement nor the provisions of the Paris Convention 
(1967) that are incorporated by reference into the TRIPS  Agreement confer upon a trademark owner 
a positive right to use its trademark or a right to protect the distinctiveness of that trademark 
through use. Accordingly, there is no corresponding obligation on Members  to give effect to such 
"rights". Moreover, contrary to what Honduras suggested, the Appellate  Body found that Article  16.1 
of the TRIPS  Agreement does not require Members to guarantee particular outcomes, beyond what 
is expressly articulated in the provis ion. Instead, in accordance with Article  1.1 of the 
TRIPS  Agreement, Members are required to give effect to Article  16.1 by ensuring that, in the 
Members' domestic legal regimes, the owner of a registered trademark can exercise its "exclusive 
right to prev ent" the infringement of its trademark by unauthorized third parties. Hence, for purposes 
of WTO dispute settlement, in order to establish that a WTO Member has acted inconsistently with 
Article  16.1, the complaining Member must demonstrate that, under the  responding Member's 
domestic legal regime, the owner of a registered trademark cannot exercise its "exclusive right to 
prevent" the infringement of its trademark by unauthorized third parties.  
Based on its understanding of Article  16.1, the Appellate  Body found that the Panel did not err in its 
interpretation of Article  16.1. Having found no error in the Panel's interpretation, the Appellate  Body 
agreed with the Panel that there was no need to examine further the complainants' factual allegation 
that the T PP measures' prohibition on the use of certain tobacco related trademarks will in fact 
reduce the distinctiveness of such trademarks, and lead to a situation where a "likelihood of 
confusion" with respect to these trademarks is less likely to arise in the market. The Appellate  Body 
noted that Honduras' claims that the Panel erred in its application of Article  16.1 and failed to make 
an objective assessment of the matter as required by Article  11 of the DSU were conditioned on the 
Appellate  Body's reversal o f the Panel's interpretation. The condition on which Honduras' appeal was 
predicated, i.e.  the reversal of the Panel's interpretation, had therefore not been satisfied, and the 
Appellate  Body considered it unnecessary to address Honduras' remaining claims of error.  
Consequently, the Appellate  Body upheld  the Panel's conclusion that the complainants had not 
demonstrated that the TPP  measures are inconsistent with Article  16.1 of the TRIPS  Agreement.  
3.9.3   Claims relating to the Panel's findings under Article  20 of  the TRIPS  Agreement  
With respect to the complainants' claims under Article  20 of the TRIPS  Agreement, the Panel 
concluded that the trademark requirements of the TPP  measures amount to special requirements 
that encumber the use of a trademark in the course  of trade. The Panel found, however, that the 
complainants failed to demonstrate that they do so "unjustifiably ". The Panel therefore concluded 
that the complainants did not demonstrate that the TPP  measures are inconsistent with Article  20 of 
the TRIPS  Agreement.  On appeal, Honduras claimed that the Panel erred in its interpretation of the 
term "unjustifiably" in Article  20 of the TRIPS  Agreement or, alternatively, that it erred in applying 
the legal standard that it had developed to the facts of the prese nt disputes.  
With respect to the interpretation of Article  20, the Appellate  Body first noted that the fact that 
Article  20 presupposes that the use of a trademark may be encumbered "justifiably" indicates that 
there is no positive right of use of a trade mark by its owner, nor is there an obligation on Members 
to protect such a positive right. According to the Appellate  Body, the term "unjustifiably" in Article  20 
of the TRIPS  Agreement reflects the degree of regulatory autonomy that Members enjoy in impos ing 
encumbrances on the use of trademarks through special requirements. In the Appellate  Body's view, 
the reference to the notion of justifiability rather than necessity in Article  20 suggests that the degree 
of connection between the encumbrance on the us e of a trademark imposed and the objective 
pursued reflected through the term "unjustifiably" is lower than it would have been had a term WT/AB/30  
 
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  conveying the notion of "necessity" been used in this provision. Accordingly, a consideration of 
whether the use of a trademark has not been "unjustifiably" encumbered should not be equated with 
the necessity test within the meaning of Article  XX of the GATT  1994 or Article  2.2 of the 
TBT Agreement. The Appellate  Body further noted that the term "unjustifiably" connotes a n action 
for which there is no fair reason, and which cannot be reasonably explained. Thus, a Member that 
imposes encumbrances on the use of trademarks through special requirements must be able to 
provide a reasonable explanation of how an objective pursue d by introducing special requirements 
warranted the resulting encumbrances.  
The Appellate  Body agreed with the Panel that a determination of whether the use of a trademark 
in the course of trade is being "unjustifiably" encumbered by special requirements c ould involve a 
consideration of: (i)  the nature and extent of encumbrances resulting from special requirements, 
taking into account the legitimate interest of the trademark owner in using its trademark in the 
course of trade; (ii)  the reasons for the impos ition of special requirements; and (iii)  a demonstration 
of how the reasons for the imposition of special requirements support the resulting encumbrances.  
The Appellate  Body also considered that the Panel did not err by not including an examination of 
alternative measures as a requisite consideration for determining whether the use of a trademark 
has been "unjustifiably" encumbered by special requirements. According to the Appellate  Body, while  
it may be possible that, in the circumstances of a particular c ase, an alternative measure that would 
lead to at least an equivalent contribution could call into question whether the reasons for the 
adoption of the special requirements sufficiently support the resulting encumbrances on the use of 
the trademark, such a n examination is not a necessary inquiry under Article  20. 
The Appellate  Body also rejected Honduras' argument that the Panel erred in relying on the 
Declaration on the TRIPS  Agreement and Public Health (Doha Declaration) in its interpretation of 
Article  20. The Appellate  Body agreed with the Panel that paragraph 5(a) of the Doha Declaration 
reflects the applicable rules of interpretation, which require a treaty interpreter to take account of 
the context and object and purpose of the treaty being interprete d. Accordingly, regardless of the 
legal status of the Doha Declaration, the Appellate  Body saw no error in the Panel's reliance on this 
general principle of treaty interpretation. The Appellate  Body further noted that the reliance on the 
Doha Declaration w as not of decisive importance for the Panel's reasoning since the Panel had 
reached its conclusions about the contextual relevance of Articles  7 and 8 of the TRIPS  Agreement 
to the interpretation of Article  20 before it turned to the Doha  Declaration.  
In its challenge of the Panel's application of the interpretation of the term "unjustifiably" to the facts 
of the dispute, Honduras focused on two elements: (i)  the Panel's focus on the economic value of 
trademarks in its assessment of the nature and extent of  encumbrances resulting from the 
TPP measures; and (ii)  its determination that "good reasons" provide "sufficient support" for the 
encumbrance.  
With respect to the first element, Honduras took issue with the Panel's observation that "[t]he 
practical implic ations" of the prohibitions on the use of design features of trademarks were "partly 
mitigated" by the fact that the TPP  measures permitted the use of word marks. Honduras argued 
that the prohibition on the use of any figurative si gns is the "ultimate encu mbrance" on the use of 
a trademark. The Appellate  Body rejected Honduras' argument that the Panel erred by not focusing 
on the use of a trademark in terms of its distinguishing function and by concluding that there was a 
mitigating effect resulting from th e permissible use of certain word marks. Having examined the 
relevant parts of the Panel's reasoning, the Appellate  Body noted that, in its analysis, the Panel 
referred to both permissive (i.e.  use of word marks in the form prescribed by the TPP  Regulation s) 
and prohibitive (i.e.  prohibition on the use of non -word components of the trademarks) elements of 
the TPP  measures. According to the Appellate  Body, considering the two elements together, the 
Panel characterized the degree of the encumbrances at issue as "far -reaching" as opposed to 
constituting an "ultimate encumbrance" on the use of trademarks. The Panel's observation that the 
"practical implications" of the prohibitions on the use of non -word elements of trademarks were 
"partly mitigated" by the perm ission to use word trademarks did not diminish this conclusion. With 
respect to Honduras' argument that the Panel erred by not focusing on the use of an individual 
trademark in terms of its distinguishing function, the Appellate  Body recalled that the comp lainants 
had not sought to demonstrate before the Panel that, as a result of the trademark -related 
requirements of the TPP  measures, consumers have been unable to distinguish the commercial 
source of tobacco products.  WT/AB/30  
 
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  The Appellate  Body further rejected Ho nduras' argument that the Panel erred by concluding that the 
reasons for special requirements under the TPP  measures sufficiently support the resulting 
encumbrances. In doing so, the Appellate  Body disagreed with Honduras' assertion that the Panel 
erred by  rejecting the reasonably available, less trademark -encumbering alternative measures 
proposed by the complainant. In this respect, the Appellate  Body recognized that the language that 
the Panel used in referring to the expected degree of contribution of th e alternative measures in its 
analysis under Article  20 of the TRIPS  Agreement was inconsistent. The Appellate  Body noted, in 
particular, that the Panel first stated that the alternative measures should lead to "at least equivalent 
outcomes" as the challen ged measure and then concluded that the complainants have not shown 
that the alternative measures "would be manifestly better" in contributing towards Australia's 
objective. However, because the Panel relied on its earlier findings under Article  2.2 of the  
TBT Agreement in reaching its conclusions regarding the contribution of the alternative measures 
under Article  20 of the TRIPS Agreement, the Appellate  Body considered that the standard by which 
the Panel abided was the same as under Article  2.2, i.e.  at least an equivalent contribution to the 
stated objective.  
The Appellate  Body recalled that it had previously found that the Panel erred in its findings regarding 
the equivalence of the contribution of each alternative measure under Article  2.2. As a result , the 
Appellate  Body considered that the Panel could not have relied on these findings in assessing the 
contribution of these relevant alternative measures in the context of Article  20 of the 
TRIPS  Agreement. However, the Appellate  Body noted that, given t he degree of regulatory 
autonomy provided to Members under Article  20 through the use of the term "unjustifiably", an 
analysis of alternative measures is not required in each and every case , and does not provide 
decisive guidance in determining whether the  encumbrances in question are imposed "unjustifiably". 
The Appellate  Body thus concluded that the Panel's overall finding that the complainants have not 
demonstrated that the trademark -related requirements of the TPP  measures unjustifiably encumber 
the use  of trademarks in the course of trade within the meaning of Article  20 would stand despite 
the Panel's error in its analysis of the alternative measures.  
Honduras also claimed that the Panel attributed undue legal weight to Articles 11 and 13 of the 
FCTC Guidelines in its analysis by relying on those provisions to justify Australia's imposition of the 
TPP measures. The Appellate  Body rejected Honduras' argument. Having examined the relevant 
parts of the Panel's reasoning, the Appellate  Body considered that the Panel referred to Articles  11 
and 13 of the FCTC  Guidelines in recognizing, as a matter of fact, that Australia was the first country 
to implement tobacco plain packaging and that it did so in line with the FCTC. Moreover, the 
Appellate  Body considered  that the Panel referred to Articles 11 and 13 of the FCTC guidelines as 
additional factual support to its previous conclusion that the complainants failed to establish that 
Australia acted inconsistently with Article  20 of the TRIPS  Agreement.  
In addition  to incorporating Honduras' claim under Article  20 of the TRIPS  Agreement, the 
Dominican  Republic raised an independent claim that the Panel failed to assess its claim under 
Article  20 of the TRIPS  Agreement regarding the prohibition of all trademarks on i ndividual cigarette 
sticks and thus acted inconsistently with Articles 7.1 and 11 of the DSU. According to the 
Dominican  Republic, the prohibition on the use of trademarks on cigarette sticks was materially 
different from the one on tobacco packaging and c igar sticks. The Appellate  Body first noted that 
the Dominican  Republic did not make a separate case of inconsistency with respect to the 
TPP measures' requirements regarding the appearance of cigarette sticks. Having reviewed the 
relevant parts of the Pan el's analysis, the Appellate  Body found that they covered the trademark 
requirements of the TPP  measures as they apply to cigarette sticks. The Appellate  Body thus did not 
consider that the Panel failed to address the Dominican  Republic's claim that the TP P measures' 
requirements for individual cigarette sticks, which prohibit the use of any trademarks on a cigarette, 
are inconsistent with Article  20 of the TRIPS  Agreement.  
The Appellate  Body thus concluded that the Panel did not err  in its interpretation of the term 
"unjustifiably" in Article  20 of the TRIPS  Agreement and in its application of this interpretation to the 
facts of the present disputes. Consequently, the Appellate  Body upheld  the Panel's finding that the 
complainants have not demonstrated that the TPP  measures are inconsistent with Australia's 
obligations under Article  20 of the TRIPS  Agreement.  WT/AB/30  
 
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  3.9.4   Recommendation  
The Appellate  Body recalled that the Panel had declined Honduras' and the Dominican  Republic's 
requests that the Panel recommend, in accordance with Article  19.1 of the DSU, that the DSB request 
Australia to bring the measures at issue into conformity with  the TRIPS  Agreement and the 
TBT Agreement. Having upheld  the Panel's findings under Article  2.2 of the TBT  Agreement and 
Articles  16.1 and 20 of the TRIPS  Agreement, it followed that the Appellate  Body agreed with the 
Panel that Honduras and the Dominican  Republic had not succeeded in establishing that Australia's 
TPP measures are inconsistent with the provisions of the covered agreements at issue. Accordingly, 
the Appellate  Body made no recommendation to the DSB, pursuant to Article  19.1 of the DSU.  
4  PARTI CIPANTS AND THIRD PARTICIPANTS IN APPEALS  
A total of 44 WTO Members participated at least once as appellant, other appellant, appellee, or 
third participant in appeals for which an Appellate  Body report was circulated during 2019 and the 
first half of 2020 . Thirteen WTO Members participated at least once as a main participant, and 
41 Members participated at least once as a third participant.  
Eighty -one of the 164  WTO Members had participated in appeals in which Appellate  Body reports 
were circulated between  1996 and the first half of 2020. Further information on the participation of 
WTO Members in appeals is provided in Annex  8. 
5  PROCEDURAL ISSUES ARISING IN APPEALS  
This section summarizes the procedural issues that were addressed in the Appellate  Body report s 
circulated during 2019 and the first quarter of 2020.  
5.1  Consolidation of appeal proceedings  
The Appellate  Body consolidated the appeal proceedings in Australia – Tobacco Plain Packaging 
(Honduras)  and Australia – Tobacco Plain Packaging (Dominican  Republic ). After Honduras filed its 
appeal but before the Dominican  Republic did, the Appellate  Body received a joint communication 
from Australia, Honduras, and the Dominican  Republic (the participants) in relation to these 
appellate proceedings. This communicati on was also sent to Cuba and Indonesia and to all the third 
parties in the four disputes before the Panel. In their joint communication, the participants requested 
that, in the event of multiple appeals, the Appellate  Body allow Australia to file a single Notice of 
Other Appeal, a single other appellant's submission, and a single appellee's submission in relation 
to all appeals. The participants also requested the Appellate  Body to consider adopting a schedule 
for the filing of appellees' and third particip ants' submissions that would give all participants and 
third participants sufficient time to review and respond to possible appeals from any of the 
participants.  
The Chair of the Appellate  Body issued a Procedural Ruling on behalf of the Division hearing t hese 
appeals. Given the envisaged consolidation of Honduras' appeal with any other appeals that would 
be filed by the other three complainants, the Division agreed to modify the filing of a Notice of Other 
Appeal, other appellant's submission, appellees' s ubmissions, and third participants' submissions in 
order to ensure fairness and orderly procedure in the conduct of these appeals. Moreover, in order 
to safeguard Australia's due process rights, which would risk being affected if a complaining party 
were t o file its Notice of Appeal and appellant's submission after having seen Australia's 
first appellee's submission, the Division authorized Australia to file any Notice of Other Appeal and 
other appellant's submission in a single document after the Dominican  Republic filed its appeal. In 
addition, the Division set a single deadline for appellees' submissions in these disputes. Likewise, 
with respect to the extension of the deadline for filing third participants' submissions, the Division 
set a single deadline  for third participants' submissions in these disputes.  
5.2  Treatment of confidential information  
5.2.1   Additional procedures to protect confidential information  
In US – Large Civil Aircraft (2nd complaint) (Article  21.5 – EU), the European  Union  requested the 
Division hearing the appeal to adopt additional procedures to protect business confidential WT/AB/30  
 
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  information (BCI) and highly sensitive business information (HSBI) in the appellate proceedings. the 
European  Union  proposed that additional procedur es be adopted that track the additional procedures 
recently adopted by the Appellate  Body in the appeal in EC and certain member States – Large Civil 
Aircraft (Article  21.5 – US). The European  Union  argued that, inter alia , disclosure of certain 
sensitive information on the record of the compliance Panel proceedings would be severely 
prejudicial to the large civil aircraft manufacturers concerned, and possibly to their customers and 
suppliers.  
On the same day, the Chair of the Appellate  Body, on behalf of t he Division hearing this appeal, 
invited the United  States  and the third participants to comment on the request by the 
European  Union , and provided interim additional protection to all BCI and HSBI transmitted to the 
Appellate  Body in this appeal pending a  final decision on the European  Union 's request. Comments 
were received from the United  States , Australia, and Canada in response to the Appellate  Body's 
invitation. The United  States  broadly agreed with the European  Union 's request that the BCI and 
HSBI p rocedures adopted in the appeal in EC and certain member States  – Large Civil Aircraft 
(Article  21.5 – US) should serve as the basis for BCI and HSBI procedures in this appeal. It 
requested, however, a change regarding the deadline for submission of an HSB I appendix to any 
written submission, suggesting that if an HSBI appendix is sent by an expedited courier service, that 
it be deemed filed and served on the date it is sent, instead of on the date it is delivered. Australia 
did not object to the European  Union's request but commented that support of both of the 
participants would be important. Canada stated that, while it agrees with the European  Union 's 
request that additional procedures to protect BCI and HSBI track the procedures adopted in 
EC and certai n member States  – Large Civil Aircraft (Article  21.5 – US), it considered that the 
requirement that note -taking by third participants in the designated reading room be handwritten 
was unnecessarily burdensome, and requested that the procedures be modified so as to provide for 
a stand -alone computer and printer to be made available to third participant BCI -approved persons 
in the designated reading room.  
In consideration of the comments made by the participants, the Chair, on behalf of the Division, 
invited the participants and third participants to provide any further views on the request by the 
European  Union , taking into account the changes proposed by the United  States  and Canada. The 
United  States  indicated that it did not favour Canada's request to allo w note -taking on a computer 
with an attached printer because it increases the risk of disclosure and in particular given that the 
United  States  considered extensive notes on the facts to be unnecessary in this appeal. The 
European  Union  responded with respect to Canada's request by noting that the risks of disclosure 
are heightened if electronic devices are permitted in the designated reading room and that the 
provision of BCI was agreed under the express understanding that electronic de vices would not be 
permitted in the designated reading room. For these reasons, the European  Union  considered that 
Canada's proposal would be acceptable only if certain heightened protections were put in place. With 
respect to the United  States ' comments, the European  Union  objected to the proposal that an HSBI 
appendix sent by expedited courier should be deemed filed the day it is sent. For the 
European  Union , Article  18 of the Working Procedures makes clear that the "filing" of a submission 
is not a cleri cal formality, but an event of legal significance, because the very status of the 
participants to an appeal derives from the act of filing the required documents. In any event, the 
European  Union  added that, should the Appellate  Body adopt any measures to address the 
United  States ' concerns, such measures should be even -handed and ensure that both participants 
have adequate time for filing.  
The Division issued a procedural ruling adopting additional procedures to protect the confidentiality 
of BCI and HSBI in these appellate proceedings. The Division did not adopt the adjustment proposed 
by the United  States , but in consideration of the burden undertaken by participants, the Division 
announced that it will endeavour to set the filing date for the HSBI append ix three days following 
the deadline for the remainder of the submission itself. The Division adopted the adjustment 
proposed by Canada by allowing third participant BCI -approved persons to take notes on a stand -
alone computer and printer in the designated  reading room.  
In Korea – Pneumatic Valves , Japan and Korea jointly requested the Appellate  Body Division hearing 
the appeal to adopt additional procedures for the protection of BCI in the appellate proceedings 
pursuant to Rule 16(1) of the Working Procedu res. The participants attached to the joint request a 
proposal on draft additional working procedures for the Appellate  Body Division's consideration. The 
Division invited the third participants to comment on the joint request but received no comments. 
The Division did not consider that the procedures that the participants have jointly proposed unduly WT/AB/30  
 
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  affect the Appellate  Body's ability to adjudicate the dispute, the rights of the third participants to be 
heard, or the rights and interests of the WTO  member ship at large. The Division noted in this respect 
the absence of comments by third  participants regarding the participants' joint request for additional 
protection of BCI. In light of these considerations, as well as similar procedures that were adopted 
in the past, the Division took into account the proposed procedures and issued a Procedural Ruling 
according additional protection, on specified terms, to the information that the participants marked 
as BCI and the information designated by the Panel as BCI in its Report and on the Panel record.  
In Russia – Railway Equipment , the participants at the oral hearing jointly requested the Division 
hearing the appeal to continue treating the information designated as BCI by the Panel under its 
additional working pr ocedures for the protection of BCI as confidential also on appeal. In particular, 
Ukraine referred to the protection of the identity of individual producers, information regarding the 
certificates, and the specific number of decisions at issue. No third pa rty raised objections in 
connection with this request. The Division considered that, in the circumstances of this appeal, 
treating the relevant information as confidential does not unduly affect its ability to adjudicate this 
dispute, the participation rig hts of the third participants, or the rights and interests of the 
WTO Membership at large. The Division noted in this respect the absence of comments by 
third participants regarding the participant's joint request as well as limited extent of information 
designated as BCI. In light to these considerations, the Division decided to grant the participants' 
joint request to treat the information designated as BCI by the Panel as confidential on appeal 
pursuant to Rule 16(1) of the Working Procedures.  
5.2.2   Objections  to the designation of confidential information  
In US – Large Civil Aircraft (2nd complaint) (Article  21.5 – EU), the United  States  made a request to 
the Division hearing this appeal to extend the deadline for the United  States  to object to the inclusion 
of any BCI in the European  Union 's appellant's submission. On the next day, the Chair of the 
Appellate  Body, on behalf of the Division, invited the European  Union  and the third participants to 
provide any comments on the United  States ' request. The European  Union  responded that it had no 
objections. The Division noted that the European  Union 's submission subject to the United  States ' 
review was over 400 pages and that the European  Union  did not object to the United  States ' request. 
Based on these considerati ons, the Division issued a procedural ruling granting the request of the 
United  States . In the interest of fairness, the Division also extend the deadline for the 
European  Union  to file an objection to the inclusion of any BCI in the United  States ' other a ppellant's 
Submission. Neither the European  Union  nor the United  States  raised any objections regarding the 
inclusion of any BCI in the appellant's and other appellant's submissions.  
Subsequently, the European  Union  requested the Division to extend the deadline for it to object to 
the inclusion of any BCI in the United  States ' appellee's submission. The European  Union  indicated 
that, due to the volume of the United  States ' submission, it needed one additional day in order to 
complete the necessary review regarding BCI. The Division invited the United  States  and the 
third participants to provide any comments on the European  Union 's request. The United  States  
responded that it would have no objection to an extension of the deadline for both participants to 
object to the inclusion of any BCI in the other participant's appellee's s ubmission. Brazil, China, and 
Russia also stated that they do not object to the extension request, but Brazil and China indicated 
that third participants should be granted an extension of the deadline for their submissions. Having 
considered the request by  the European  Union  and the comments from the United  States , Brazil, 
China, and Russia, the Division decided to extend the time  period for both the European  Union  and 
the United  States  to file an objection to the inclusion of any BCI to each other's appell ee's submission 
by the same duration. The Division noted that this extension would result in the third participants 
receiving the redacted versions of participants' appellee's submissions later. Accordingly, the 
Division also decided to extend the deadline  for the filing of third participants' submissions and 
executive summaries (and any BCI redacted versions of such documents), and notifications by 
third participants under Rule 24(2) of the Working Procedures.  
The United  States  did not raise any objections  regarding the designation of confidential information 
in the European  Union 's appellee's submission. The Appellate  Body received a communication from 
the European  Union , in which the European  Union  objected to the inclusion of certain HSBI in the 
HSBI-redacted version of the United  States ' appellee's submission, without proper designation of 
that information as HSBI. The Division invited the United  States  to comment on the 
European  Union 's request. The United  States  responded that the relevant information should be 
treated as HSBI, and requested that it be allowed to submit replacement pages for the BCI versions WT/AB/30  
 
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  (HSBI -redacted) and non -BCI versions (BCI - and HSBI -redacted) of its appellee's submission, and 
a corrected HSBI Appendix. Having considered the re quest by the European  Union  and the comments 
from the United  States , the Division granted additional time for the United  States  to submit the 
replacement pages for the BCI versions (HSBI -redacted) and non -BCI versions (BCI - and 
HSBI-redacted) of its appell ee's submission, as well as the corrected HSBI Appendix. The Division 
also noted that this decision would result in the third participants receiving the redacted versions of 
participants' appellee's submissions later. Accordingly, the Division also decided  to extend the 
deadline for the filing of third participants' submissions and executive summaries (and any 
BCI-redacted versions of such documents), and notifications by third participants under Rule 24(2) 
of the Working Procedures.  
5.3  Treatment of late subm issions  
In US – Large Civil Aircraft (2nd complaint) (Article  21.5 – EU), the United  States  made a request on 
the date when its other appellant's submission was due to the Division hearing this appeal to extend 
the deadline to file the HSBI Appendix to the submission. The United  States  explained that it had 
couriered the HSBI Appendix to the Appellate  Body and European  Union  with the expectation that it 
would arr ive by the deadline, but it had not. The United  States  submitted the HSBI Appendix to the 
Appellate  Body one day after the initial due date. The Chair of the Appellate  Body, on behalf of the 
Division, invited the European  Union  and the third participants t o comment on whether the Division 
should accept the late -filed HSBI Appendix of the United  States . The European  Union  responded that 
the United  States ' explanation was insufficient and that it would welcome additional explanation and 
evidence. The Division  requested that the United  States  provide relevant documentation relating to 
the time and date on which the HSBI Appendix was delivered to the courier service for transmission 
to Geneva. In response, the United  States  provided a printout of the tracking in formation for 
shipment of the HSBI Appendix, together with additional details and explanation. The United  States  
maintained that, while it was unfortunate that the package arrived a day later than expected, a 
decision to grant its extension request would n ot result in prejudice. Having considered the request 
by the United  States , with the additional information supporting the request, and the comments by 
the European  Union , the Division decided to accept the late -filed HSBI Appendix to the United  States ' 
other appellant's submission.  
In US – Supercalendered Paper , the Division hearing this appeal received a communication from 
China, containing the executive summary of China's third participant's submission in this appeal. 
China originally filed its third participant's submission earlier in accordance with the working schedule 
for appeal. China indicated that the executive summary was inadvertently omitted from its 
third participant's submission. The Chair of the Division invited the participants and other 
third participants in this appeal to comment in writing on China's communication. Canada indicated 
that it had no objections for China to submit the executive summary of its third participant's 
submission at this stage of the appeal. Mexico noted tha t, as China's third participant's submission 
was filed on time, the participants' and other third participants' due process rights were not affected. 
The Division issued a Procedural Ruling to accept the executive summary of China's 
third participant's sub mission.  
5.4  Time limits for the filing of written submissions  
In Korea – Pneumatic Valves , the European  Union  requested the Appellate  Body Division hearing the 
appeal to modify the deadline for the filing of third participants' submissions. In its letter, the  
European  Union  noted that the Working Schedule set the date for the submission of appellees' 
submissions as Friday, 15  June 2018, and the date for the filing of the third participants' submissions 
as Monday, 18  June 2018. The European  Union  highlighted th at this allowed third participants less 
than one working day to consider and react to the appellees' submissions in their third participants' 
submissions. The Division invited the participants to comment on the European  Union 's request and 
received respons es from Korea and Japan stating that they did not have any specific comments on 
the request. In consideration of the European  Union 's request and the responses from Korea and 
Japan, the Division issued a Procedural Ruling pursuant to Rule 16(2) of the Work ing Procedures 
extending the deadline for filing third participant's submissions and notifications under Rule 24(1) 
and (2) of the Working Procedures.  
As discussed above, in US – Large Civil Aircraft (2nd complaint) (Article  21.5 – EU), the Division 
hearing the appeal granted additional time for the United  States  to submit replacement pages in 
order to make corrections to its designation of confidential information contained in its appellee's WT/AB/30  
 
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  submission. As a result, the Division also decided  to extend the deadline for the filing of 
third participants' submissions and executive summaries, and notifications by third participants 
under Rule 24(2) of the Working Procedures.  
In US – Supercalendered Paper , the Chair of the Appellate  Body received a  communication from the 
European  Union  requesting that the Division hearing this appeal modify the deadline for the filing of 
third participants' submissions to allow third participants four full working days following the 
submission of the appellee's subm ission. The Chair of the Appellate  Body, on behalf of the Division 
hearing this appeal, invited the participants and other third participants in this appeal to comment 
on the European  Union 's request. Brazil, Canada, China, India, Japan, Korea, Mexico, and  the 
United  States  indicated that they had no objections to the European  Union 's request for an 
extension. On behalf of the Division hearing this appeal, the Chair of the Appellate  Body issued a 
Procedural Ruling to extend the deadline for filing third par ticipant's submissions, notifications, and 
executive summaries as requested by the European  Union . 
As discussed above, owing to the consolidation of the appeal proceedings in Australia – Tobacco 
Plain Packaging (Honduras)  and Australia – Tobacco Plain Pack aging (Dominican  Republic) , the 
Division authorized Australia to delay the filing of any Notice of Other Appeal and other appellant's 
submission in a single document until after the Dominican  Republic had filed its appeal. In addition, 
the Division set a s ingle deadline for appellees' submissions in these disputes. Likewise, with respect 
to the extension of the deadline for filing third participants' submissions, the Division set a single 
deadline for third participants' submissions in these disputes.  
5.5  Reque sts regarding the conduct of the oral hearing  
In US – Large Civil Aircraft (2nd complaint) (Article  21.5 – EU), the Division hearing this appeal 
invited the participants to indicate whether they wished to request the sessions of the oral hearing 
to be open  to public observation, and, if so, to propose specific modalities in this respect. In 
response, the European  Union  and the United  States  jointly requested that the Division hearing this 
appeal to allow observation by the public of the oral hearing and ado pt additional procedures to 
protect BCI and HSBI during the oral hearing. The participants proposed that the Division adopt the 
same additional procedures that the Appellate  Body adopted in EC and certain member 
States  – Large Civil Aircraft (Article  21.5 – US). In particular, regarding the segments of the oral 
hearing that would be open to public observation, the participants suggested that the opening and 
closing statements of the participants and third participants (that agreed to public observation) be 
videotaped, reviewed by the participants for any inadvertent inclusion of BCI/HSBI, and transmitted 
to the public at a later date. Regarding HSBI, the participants suggested that the oral hearing be 
momentarily suspended for non -HSBI approved persons to va cate the hearing room if/when one of 
the participants or the member of the Division wishes to refer to HSBI, or that the hearing to be 
divided into two parts, one designed to address without referring to HSBI and another for addressing 
HSBI. In response to  the joint request, comments were received from Canada and China. Canada 
expressed its support for the joint proposal. China made its own request that its oral statement and 
its responses to questions at the oral hearing be treated as confidential.  
The Div ision recalled the additional procedures adopted in EC and certain member States  – Large 
Civil Aircraft (Article  21.5 – US) and EC and certain member States  – Large Civil Aircraft and 
US – Large Civil Aircraft (2nd complaint) , as they related to the public observation of the oral hearing. 
Having considered these additional procedures, the Division issued a procedural ruling adopting 
additional procedures to protect BCI and HSBI during the oral hearing, and to authorize the 
participants ' request to open the sessions dedicated to the delivery of opening statements (and 
potentially closing statements pending subsequent confirmation) for public observation. As for 
third participants, the Division authorized observation by the public of thei r opening and closing 
statements only to the extent that they indicated no objections. Moreover, the Division granted the 
joint request to authorize public observation through deferred transmission to the public by video  
recording. Regarding the treatment of HSBI, the Division stated that it would focus on HSBI in 
dedicated segments to the extent possible in order to avoid interrupting the regular flow of the 
hearing.  
In US – Large Civil Aircraft (2nd complaint) (Article  21.5 – EU), the Division also receiv ed a 
communication from the United  States  requesting that the Division take account of the absence of 
a key member of the US delegation on one of the hearing dates during the second session of the 
oral hearing. In light of this, the United  States  suggested  that the Division not address questions WT/AB/30  
 
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  relating to certain areas on the day when the member of the US delegation at issue is to be absent 
or alter the schedule so that the hearing does not take place on the day when the member of the 
US delegation at iss ue is to be absent. The Division invited the European  Union  and the 
third participants to provide any comments. The European  Union  responded that, among the 
proposals made by the United  States , it preferred the option of rescheduling the hearing, because 
reserving questioning regarding certain areas on the proposed date would create a scheduling 
conflict for a member of the EU delegation. The Division decided to change the dates of the 
second  session of the oral hearing.  
In Russia – Railway Equipment , the A ppellate  Body received a communication from Ukraine 
requesting that the Division extend the time limits for opening statements at the oral hearing. On 
the same day, the Division hearing the appeal invited Russia and third participants to provide any 
commen ts on Ukraine's request. Russia expressed its support and requested that equal opportunity 
be provided to both Russia and Ukraine in the event that the Division decided to grant Ukraine's 
request. No comments were received from the third participants. Havi ng considered Ukraine's 
request and comments by Russia, the Division decided to extend the time limits for both participants' 
opening statements.  
In US – Supercalendered Paper , the Division hearing this appeal received a joint communication 
from Canada and  the United  States  requesting that the public be allowed to observe the participants 
and third participants that agree to make public their statements and responses at the oral hearing. 
Canada and the United  States  made the request on the understanding tha t any information that had 
been designated as confidential in the documents filed by any participant in the Panel proceedings 
would be adequately protected in the course of the Appellate  Body's oral hearing. The Division invited 
third participants to comme nt on this request. Mexico indicated that, without prejudice to its 
systemic position on the matter, it did not object to allowing public observation of the oral hearing 
in these proceedings. No other comments from third participants were received. The Div ision issued 
a Procedural Ruling regarding the joint request by Canada and the United  States . The Division 
adopted additional procedures on the conduct of the oral hearing, including procedures pertaining 
to public observation of the opening statements of the Members' delegations that had agreed to 
have their statements made public. During the hearing, the participants and four of the 
third participants (Brazil, China, the European  Union , and Japan) made oral statements and 
responded to questions posed by the Members of the Appellate  Body Division hearing the appeal. A 
simultaneous closed -circuit television broadcast of the hearing was shown in a separate viewing 
room. Oral statements and responses to questions by a third participant that had indicated its wish 
to maintain the confidentiality of its submissions were not subject to public observation.  
In Australia – Tobacco Plain Packaging (Honduras)  and Australia – Tobacco Plain Packaging 
(Dominican  Republic) , owing to the number of issues raised in these ap pellate proceedings, the 
Division hearing these appeals held two  hearings. At the request of Honduras, the Division allowed 
a member of Honduras' delegation to participate in the reading of the closing statements at the 
second hearing via video  conference.  
Additionally, in Australia – Tobacco Plain Packaging (Honduras)  and Australia – Tobacco Plain 
Packaging (Dominican  Republic) , Australia requested the Division to provide guidance on the 
presence and role of individuals that Australia referred to as "fact experts", at the second hearing of 
these appellate proceedings. Australia requested that the Division either: (i)  exclude, from the 
second  hearing, individuals who appeared as "fact experts" before the Panel; or (ii)  issue clear 
guidance concerning the rol e of these individuals at the second  hearing. The Dominican  Republic, 
Honduras, Canada, China, the European  Union, and the United  States submitted comments in 
reaction to Australia's request. The Division responded to Australia's request by letter. The Div ision 
reiterated the Presiding Member's clarification, provided at the first hearing, that each Member has 
the right to determine who will form part of its delegation and who speaks on its behalf. The Division 
added that, when responding to questions from the Division, every individual member of a delegation 
responds as an advocate representing that participant. Moreover, as all individuals included in 
participants' delegations at the second  hearing would be present as representatives of their 
governments, they would be subject to the provisions of the DSU, including the scope of 
appellate  review as delineated by Article  17.6 of the DSU. In this regard, the Members of the Division 
indicated that they would be proactive in disciplining participants' responses  to questions and would 
intervene whenever they deemed it necessary. The Division provided further guidance as to the 
conduct of the second hearing at the start of that hearing.  WT/AB/30  
 
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  5.6  Transition  
In a number of appeals for which the Appellate  Body reports were ci rculated during 2019 and the 
first half of 2020, the participants and third participants were informed that, in accordance with 
Rule 15 of the Working Procedures, the Chair of the Appellate  Body had notified the Chair of the 
DSB of the Appellate  Body's dec ision to authorize certain Appellate  Body Members to complete the 
disposition of such appeal, even though their terms of office were due to expire before the completion 
of these appellate proceedings. Such communications were made in the following cases: US – Large 
Civil Aircraft (2nd complaint) (Article  21.5 – EU) for Mr Peter Van den Bossche; Korea – Radionuclides , 
US – Countervailing Measures (China) (Article  21.5 – China) , Korea – Pneumatic Valves , and 
Ukraine  – Ammonium Nitrate  for Mr Shree Baboo Chekitan Servansing; Russia – Railway Equipment  
for Messrs Shree Baboo Chekitan Servansing and Thomas R. Graham; US – Supercalendered Paper  
for Messrs Ujal Singh Bhatia and Thomas  R. Graham; and Australia – Tobacco Plain Packaging  
(Hond uras) and Australia – Tobacco Plain Packaging (Dominican  Republic)  for Messrs Ujal Singh 
Bhatia, Shree Baboo Chekitan Servansing, and Thomas R. Graham.  Australia – Tobacco Plain 
Packaging (Honduras)  and Australia – Tobacco Plain Packaging (Dominican  Republ ic) became the 
first appeals with respect to which the transition notice was issued for all three members of the 
Division hearing the appeals.  
5.7  Reasons for the extension of the time period for the circulation of Appellate  Body  
reports  
The 90 -day time  period  stipulated in Article  17.5 of the DSU for the circulation of reports was 
exceeded in all the appellate proceedings in respect of which Appellate  Body reports were circulated 
during 2019 and the first half of 2020. For each appellate proceeding, the Appell ate Body 
communicated to the DSB Chair the reasons why it was not possible to circulate the Appellate  Body 
report within the 90 -day period.  
These reasons included the backlog and substantial workload of the Appellate  Body, issues arising 
from overlap in th e composition of the Divisions hearing different appeals owing to the vacancies on 
the Appellate  Body, appellate proceedings running in parallel, the size of the panel record s, the 
number and complexity of the issues appealed, together with the demands tha t these 
appellate  proceedings place on the WTO Secretariat's translation services, and the shortage of staff 
in the Appellate  Body Secretariat.  
5.8  Withdrawal of an appeal  
As elaborated in detail in 3.6  , in Morocco – Hot-Rolled Steel , the appellant, Morocco , informed the 
Appellate  Body of its decision to withdraw the appeal, and requested the Appellate  Body to inform 
the DSB of this decision, pursuant to Rule 30(1) of the Working Procedures. On the same day, Turkey 
submitted a letter to the Appellate  Body, in which it noted Morocco's decision to withdraw the appeal 
and joined Morocco in requesting the Appell ate Body to notify the DSB of Morocco's decision. In 
addition, Turkey noted that, on the previous occasion in which an appeal was withdrawn, i.e.  in 
India – Autos  (DS146 and DS175), the Appellate  Body issued a short report noting the withdrawal 
of the appe al. In view of Morocco 's and Turkey's requests, the Appellate  Body issued a report noting 
the withdrawal of the appeal and completed its work in the appeal.  
5.9  Amici  curiae  submissions  
In Australia – Tobacco Plain Packaging (Honduras)  and Australia – Tobacco Plain Packaging 
(Dominican  Republic) , the Appellate  Body received eight  amici curiae  submissions in connection with 
these appellate proceedings. The Appellate  Body acknowledged receipt of these amici  curiae  
submissions but did not rely on these submissions  in making its findings.  
6  ARBITRATIONS UNDER ARTICLE  21.3( c) OF THE DSU  
The DSU does not specify who shall serve as an arbitrator under Article  21.3(c) of the DSU to 
determine the reasonable period of time for the implementation by a WTO  Member of the 
recom mendations and rulings adopted by the DSB in dispute settlement cases. The parties to the 
arbitration select the arbitrator by agreement or, if they cannot agree on an arbitrator, WT/AB/30  
 
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  the Director -General of the WTO  appoints the arbitrator. In all but three ar bitration proceedings44, 
those who have served as arbitrators pursuant to Article  21.3(c) have been current or former 
Appellate  Body Members. In carrying out arbitrations under Article  21.3(c), Appellate  Body Members 
act in an individual capacity.  
No Article  21.3(c) arbitration proceedings were completed in 2019, but in 2020, one arbitral award 
was issued in Ukraine – Anti-Dumping Measures on Ammonium Nitrate  as described in further detail 
below.  
6.1  Ukraine – Anti-Dumping Measures on Ammonium Nitrate , WT/DS493/RPT  
On 30  September  2019, the DSB adopted the Appellate  Body Report and the Panel  Report in 
Ukraine  – Anti-Dumping Measures on Ammonium Nitrate . This dispute concerned anti -dumping 
measures imposed by Ukraine on imports of ammonium nitrate from Ru ssia. Following an anti -
dumping investigation, duties were originally imposed by Ukraine's Intergovernmental Commission 
on International Trade (ICIT) through its decision of 21  May 2008 (2008 original decision). 
Russian  producer JSC MCC EuroChem (EuroChem)  successfully challenged the 2008 original decision 
before domestic courts in Ukraine, following which ICIT issued an amendment (2010 amendment) 
to the 2008 original decision. Following interim and expiry reviews, ICIT issued a decision 
(2014  extension dec ision) imposing anti -dumping duties at modified rates, including with respect to 
EuroChem.  
As set out in greater detail in section  3.5   of this Annu al Report, the Panel found that Ukraine acted 
inconsistently with  Article  5.8 of the Anti -Dumping Agreement by failing to exclude EuroChem from 
the scope of the original anti -dumping measures, imposing  a 0% anti -dumping duty on EuroChem 
through the 2010 am endment, and including EuroChem within the scope of the interim and expiry 
review determinations, although it had been  found to have a de minimis dumping margin in the 
original investigation . The Panel also found that Ukraine acted inconsistently with: (i)  Articles  2.2, 
2.2.1, 2.2.1.1, and 11.2 -11.3 of the Anti -Dumping Agreement in making dumping and 
likelihood -of-dumping determinations in the interim and expiry reviews; and (ii)  Article  6.9 of the 
Anti-Dumping Agreement by failing to comply with certain disclosure obligations in these reviews . 
In ruling on Ukraine's appeal, the Appellate  Body upheld all the Panel's findings that had been 
challenged.  
At the meeting of the DSB held on 28  October  2019, Ukraine indicated its intention to implement 
the recommendations and rulings of the DSB in this dispute and stated that it would need a 
reasonable period of time for implementation. Consultations on the reasonable period of time for 
implementation pursuant to Article  21.3(b) of the DSU did not result in  an agreement. Russia 
therefore requested that the reasonable period of time be determined by binding arbitration pursuant 
to Article  21.3(c) of the DSU. On 2  December  2019, Russia requested the Director -General to 
appoint an arbitrator. On 11  December  2019, the Director -General appointed Mr Ricardo Ramírez -
Hernández to act as an arbitrator under Article  21.3(c) of the DSU. Mr Ricardo Ramírez -Hernández 
accepted this appointment on 12  December  2019.  
Ukraine submitted that 27 months would be a reasonable per iod of time to implement the 
recommendations and rulings of the DSB. Ukraine argued that implementation required Ukraine to: 
(i) adopt first a "general legislative framework" to allow Ukrainian investigating authorities to 
conduct review investigations for  the purpose of complying with DSB recommendations and rulings; 
and (ii)  subsequently conduct an administrative review to amend the anti -dumping measures at 
issue. Ukraine also referred to a "particular circumstance" warranting a longer reasonable period o f 
time. In that respect, Ukraine argued that it had been in a situation of "emergency in international 
relations" since 2014.  
 
44 Mr Simon Farbenbloom served as the Arbitrator in  United  States – Anti-Dumping Measures on Certain 
Shrimp from Viet  Nam. Mr Farbenbloom had previously served as Chair of the Panel in the underlying dispute. 
Ms Claudia Orozco served as the Arbitrator in United  States – Anti-Dumping and Countervailing Measures on 
Large Residential Washers from Korea . Ms Orozco had previo usly served as Chair of the Panel in the underlying 
dispute. Mr Farbenbloom was also appointed as the Arbitrator in United  States – Certain Methodologies and 
Their Application to Anti -Dumping Proceedings Involving China , initiated 17 October  2017, and circulated 
19 January  2018.  WT/AB/30  
 
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  Russia responded that no reasonable period of time was warranted to implement the 
DSB's  recommendations and rulings pertaining to  Article  5.8 of the Anti -Dumping Agreement, and 
that Ukraine should have implemented the remaining DSB 's recommendations and rulings within 
two months. With respect to Ukraine's implementation obligations under Article  5.8, Russia argued 
that the second se ntence of Article  5.8 requires the immediate  termination of an investigation, and 
that immediate compliance in this respect was not "impracticable" within the meaning of Article  21.3 
of the DSU . Russia also argued, with respect to all the DSB recommendatio ns and rulings at issue, 
that neither legislative changes nor an administrative review was necessary for implementation. 
Instead, implementation only required an administrative decision by ICIT. In any event, Russia 
maintained that Ukraine had failed to me et its burden of proof in requesting a reasonable period of 
time of 27  months.  
At the outset, the Arbitrator took note of Russia's distinction between (i)  the recommendations and 
rulings of the DSB pertaining to Article  5.8; and (ii)  the remaining recomme ndations and rulings of 
the DSB. The Arbitrator recalled that, pursuant to Article  21.3(c) of the DSU, his mandate was to 
determine the reasonable period of time for compliance with the recommendations and rulings of 
the DSB in this dispute, not whether it  was "impracticable to comply immediately with the 
recommendations and rulings" under the second sentence of Article  21.3 of the DSU, as suggested 
by Russia. The Arbitrator also observed that all of Ukraine's implementation obligations pertained to 
a singl e set of measures forming part of the same anti -dumping proceeding and that 
the 2014 extension decision was at the heart of all the recommendations and rulings of the DSB. 
The Arbitrator had difficulty accepting that he should distinguish between the vario us 
recommendations and rulings of the DSB pertaining to the same measure, and thus  considered it 
appropriate to determine one reasonable period of time with respect to all of Ukraine's 
implementation obligations.  
Addressing the proposed means of implementa tion in this dispute, the Arbitrator recognized that a 
combination of legislative and administrative actions, as proposed by Ukraine, would inevitably 
require more time than implementation by administrative means. The Arbitrator thus decided to 
consider fi rst the available administrative means for implementation under Ukraine's existing 
legislative framework. In that regard, Russia argued that Article  5.6 of Ukraine's anti -dumping law 
allows ICIT to take a summary decision on the application of anti -dumping  measures and that neither 
an administrative review nor legislative changes were thus required for the purpose of 
implementation in this dispute. The Arbitrator observed that Article  5.6 lists, in general terms, the 
decisions that ICIT may take, without sp ecifying the steps that need to be completed before ICIT 
can make such decisions. The Arbitrator therefore considered this provision of 
Ukraine's  anti-dumping law, on its own, to be of limited guidance in determining whether the 
anti-dumping measures at is sue could be amended simply through a decision by ICIT. While Russia 
relied on certain past decisions by ICIT that had not required an administrative review, the Arbitrator 
considered these decisions not to be relevant, mainly because they had been based o n specific 
provisions of Ukrainian law that were not applicable in the present dispute. Overall, the Arbitrator 
was not convinced by Russia's argument that implementation in this dispute could have been 
achieved through a decision by ICIT under Ukraine's a nti-dumping law, without 
Ukrainian  investigating authorities conducting an interim review of the anti -dumping measures at 
issue. In reaching this conclusion, the Arbitrator stated that he was mindful of the fact that 
implementation required excluding EuroC hem from the scope of the anti -dumping measures, 
calculating dumping margins, and complying with certain disclosure obligations.  
Next, the Arbitrator addressed Ukraine's argument that there is no legal basis in Ukraine's legislative 
framework for Ukrainia n investigating authorities to review the anti -dumping measures at issue and 
that implementation thus required legislative changes. According to Ukraine, under its anti -dumping 
law, an interim review cannot: (i)  be initiated ex officio by Ukrainian investi gating authorities; (ii)  be 
initiated on the basis that anti -dumping measures were found to be WTO -inconsistent; and (iii)  focus 
on examining compliance with the recommendations and rulings of the DSB.  
The Arbitrator took the view that, in light of the pa rties' submission and responses to questioning at 
the hearing, Ukraine had not shown that its investigating authorities could not reasonably review 
the anti -dumping measures at issue to implement the recommendations and rulings of the DSB 
under its existin g legislative framework. In that regard, the Arbitrator noted that, pursuant to 
Article  20.1 of Ukraine's anti -dumping law, an administrative review can be initiated at the request 
of "an executive authority in the country of import". The Arbitrator noted that Ukraine had not put 
forward a definition of the term "executive authority". Instead, Ukraine had merely stated, without WT/AB/30  
 
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  providing any supporting evidence, that the past practice of Ukrainian investigating authorities had 
been to consider that they do not qualify as "an executive authority" for the purpose of this provision. 
As the Arbitrator emphasized, Ukraine had not explained why any such past practice, if established, 
would necessarily prevent the same entity conducting anti -dumping investigations and reviews from 
requesting the initiation of the administrative review necessary for implementation or, for that 
matter, prevent another executive authority of Ukraine from making such a request.  
The Arbitrator also referred to: (i)  Article  20.2 of Ukrai ne's anti -dumping law, directing investigating 
authorities to initiate an interim review where there is sufficient evidence that the continued 
imposition of the anti -dumping duties is no longer necessary to offset dumping ; and (ii)  Article  20.3 
of that law , requiring that, once an interim review is initiated, Ukrainian investigating authorities 
shall "in particular" examine "whether the circumstances relating to dumping and injury have 
changed significantly". The Arbitrator noted Ukraine's argument that it was unclear whether the 
continued imposition of the anti -dumping duties was no longer necessary to offset dumping  within 
the meaning of Article  20.2 and whether the circumstances relating to dumping changed significantly 
within the meaning of Article  20.3.  The Arbitrator observed, however, that Ukraine  was necessarily 
required to recalculate dumping margins for the purpose of implementation in this dispute. It was 
also required to exclude EuroChem from the scope of the anti -dumping measures at issue because  
EuroChem, one of the two main investigated Russian producers in the interim and expiry reviews,  
had been found to have a de minimis dumping margin. To the Arbitrator, the continuation of anti -
dumping measures was thus at the heart of Ukraine's implementat ion obligations. Without any 
further explanation by Ukraine, the Arbitrator was not convinced that the circumstances of this 
dispute did not justify the initiation of an interim review. He was also not convinced that, once 
initiated, Ukrainian investigatin g authorities could not focus this interim review on implementing the 
recommendations and rulings of the DSB. In that regard, the Arbitrator observed that Ukraine had 
not explained why new dumping margin calculations and the exclusion of EuroChem did not q ualify 
as a significant change in circumstances relating to dumping. In any event, Article  20.3 directs 
Ukrainian investigating authorities to examine "in particular" significant changes in circumstances 
relating to dumping, and the Arbitrator took this to  mean that Ukrainian investigating authorities 
are free to examine other relevant aspects.  
In light of the foregoing considerations, the Arbitrator concluded that Ukraine had not shown that, 
in the circumstances of this dispute, Ukraine could not reasonably initiate and conduct an 
administrative review for the purposes of implementation under it s existing legislative framework.  
By way of consequence, the Arbitrator considered the issue of the time needed for Ukraine's 
proposed legislative changes to be moot. Specifically, the Arbitrator stated that, while Ukraine 
enjoyed a certain discretion in choosing the means and method of implementation, that discretion 
was not unfettered, and the chosen method of implementation needed to be capable of bringing 
Ukraine into compliance with its WTO  obligations within a "reasonable period of time". The Arbitra tor 
emphasized in this context that the reasonable period of time should be the shortest period possible 
within the legal system of the implementing Member, and that the implementing Member should 
utilize all flexibilities available within its legal system . While the Arbitrator recognized that the 
legislative and administrative means of implementation proposed by Ukraine fell within the range of 
permissible means of implementation, he considered, based on his earlier conclusion, that legislative 
action was not indispensably required to achieve compliance in this dispute. The Arbitrator clarified 
that it was not his task under Article  21.3(c) of the DSU to decide which method or type of measure 
should be chosen by an implementing Member. However, the Arbitrat or considered it to be within 
his mandate to assess the shortest period possible within Ukraine's legal system for effective 
implementation. Since Ukraine had not shown that implementation could not be reasonably achieved 
through administrative means under  its existing legislative framework, the Arbitrator did not believe 
that his determination of the reasonable period of time needed to account for additional legislative 
actions.  
Turning to the period of time for Ukraine's administrative process, the Arbit rator recalled that 
Ukraine requested 12 months to complete a partial interim review focusing on dumping margin 
determinations and complying with certain disclosure requirements. The Arbitrator also recalled 
Ukraine's statement that its proposed timeframes  were based on the fastest full administrative 
review Ukrainian investigating authorities ever conducted, which had taken 11.5  months to 
complete. The Arbitrator then observed that the maximum amount of time foreseen under Ukraine's 
domestic legislation fo r an interim review is 12 months. In addition, the Arbitrator observed that the WT/AB/30  
 
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  interim and expiry reviews, in which WTO -inconsistent determinations were made, had taken 
12 months to complete.  
The Arbitrator could not accept the time period in which Ukrai nian investigating authorities were 
able to conduct previous full -fleshed reviews to be an appropriate measure of the time needed for 
an administrative review in this case. As the Arbitrator stated, the 11.5 -month review to which 
Ukraine referred was, by n ature, distinct from a redetermination for the purpose of implementing 
recommendations and rulings of the DSB. Given the limited scope of the administrative review to be 
conducted, the Arbitrator also could not accept that the administrative review necessa ry for 
implementation required the same amount of time than as the interim and expiry reviews. In that 
regard, the Arbitrator emphasized that Ukraine's implementation obligations pertained only to the 
non-termination of the investigation against EuroChem, dumping and likelihood -of-dumping 
determinations, and the disclosure of essential facts. Crucially, the parties' responses to questioning 
at the hearing made clear that: (i)  EuroChem, one of the two main investigated Russian producers 
in the interim and ex piry reviews, was to be excluded from the scope of the anti -dumping measures 
at issue, requiring no new determination; (ii)  new analysis was to be limited to recalculating normal 
value for the remaining investigated Russian producers, without considering a fresh the export price 
or the injury analysis; and (iii)  some data relevant to these normal value calculations were already 
on the record.  
In considering the time reasonably necessary to conduct the requisite administrative review, the 
Arbitrator noted th at Ukraine had not argued or provided evidence that, under Ukrainian law, all the 
steps and timeframes it had put forward are mandatory. Yet, the Arbitrator was not convinced by 
Russia's argument that Ukraine simply needed to reconsider existing evidence f or the purpose of 
recalculating normal value.  Given the Panel and Appellate  Body findings at issue, the Arbitrator did 
not exclude that Ukrainian investigating authorities could collect additional information and data to 
construct normal value. The Arbitra tor considered that his determination needed to account for some 
time for Ukrainian investigating authorities to issue questionnaires and to collect and consider 
additional information and data. Moreover, bearing in mind the nature of the implementation at  
issue, and mindful that investigated exporters and producers benefit from the opportunity to defend 
their interests in hearings and through the process of verification, the Arbitrator was reluctant to 
determine any period of time for implementation that w ould foreclose the possibility that such 
procedural steps could be taken if and when warranted. That being said, the Arbitrator highlighted 
that, given the limited scope of Ukraine's administrative review, the time allocated for these steps 
needed to be re asonably reduced as compared to Ukraine's proposed timeframes.  
Moreover, the Arbitrator observed that, even if some steps and time periods are not required by 
law, they could nonetheless be useful in ensuring transparent and efficient implementation, fully  
respecting due process for all parties involved. The Arbitrator considered that due process concerns 
needed to be balanced with the principle of prompt compliance reflected in Article  21.1 of the DSU. 
To that end, all flexibilities within the legal system  of an implementing Member must be employed 
in the implementation process. In this case, the Arbitrator considered that Ukraine had not explained 
how the timeframes associated with the various steps of its proposed administrative review reflected 
the use o f flexibilities within its legal system. The Arbitrator took the view that, given the limited 
scope of the administrative review at issue, Ukraine had available to it a considerable degree of 
flexibility to conduct that administrative review in a shorter p eriod of time than it proposed, as 
evidenced by the absence of mandatory timeframes in relation to the majority of the component 
steps of Ukraine's review.  
Based on the foregoing, the Arbitrator concluded that Ukraine had not satisfied its burden of provi ng 
that 12 months was the shortest period of time possible within its legal system to complete the 
administrative review at issue. The Arbitrator took the view that Ukraine could complete this 
administrative review in reasonably less time. At the same time , given all the necessary steps for 
an administrative review, the Arbitrator did not agree with Russia that this review could be completed 
within two months.  
Having reached this conclusion, the Arbitrator noted that, a few days before the initially schedu led 
date of issuance of his Award, Ukraine had requested that recent measures taken in response to the 
COVID -19 virus be taken into consideration in the determination of the reasonable period of time. 
Ukraine had referred to the 30 -day emergency situation regime introduced across Ukraine on 
25 March 2020, specifically pointing to quarantine measures, the suspension of all commercial 
international passenger services to and from Ukraine, the closing of all non -essential services, and WT/AB/30  
 
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  the ban on gatherings of more than 10  individuals. While expressing its solidarity with the countries 
affected by the COVID -19 virus, Russia responded that it was unclear how the COVID -19 virus 
measures adopted by Ukraine affected Ukraine's ability to conduct administrative review s. Russia 
emphasized that, as per Ukrainian investigating authorities themselves, investigations were not 
terminated or suspended and that, aside from a few mitigating measures, investigations continued 
to be conducted "as usual".  
The Arbitrator recognize d that Ukraine had not explained in detail the extent to which its measures 
to address the COVID -19 virus affected its investigating authorities' ability to review the anti -
dumping measures at issue in this dispute. At the same time, the Arbitrator stated that he was 
aware of the seriousness of Ukraine's recent COVID -19 measures, which had been put in place as 
part of an emergency situation regime in response to a pandemic, and that the types of measures 
described by Ukraine may affect many aspects of a cou ntry's operation. The Arbitrator added that 
the documents put on the record by Russia confirmed that Ukraine's recent measures affected the 
conduct of trade -defence investigations and that certain necessary procedural modifications were 
being made by Ukrai nian investigating authorities. For example, as a result of the COVID -19 virus, 
on-site verifications were cancelled, potentially leading to the extension of deadlines for interested 
parties to provide answers to questionnaires. While the Arbitrator saw me rit in Russia's argument 
that the COVID -19 pandemic is not "an overwhelming excuse for failures to comply with the 
WTO obligations", he could not, in his determination of the reasonable period of time in this dispute, 
turn a blind eye to the developments i n Ukraine, and the rest of the world, relating to the COVID -19 
pandemic affecting the work of Ukrainian investigating authorities. The Arbitrator concluded that his 
determination also needed to take into account the developments in Ukraine relating to the 
COVID -19 pandemic.  
Finally, the Arbitrator addressed the particular circumstance alleged by Ukraine to be relevant to the 
determination of the reasonable period of time in this dispute. Ukraine requested that an additional 
six months be granted because Uk raine had been, since 2014, in a situation of "emergency in 
international relations". Ukraine argued that it had, since then, been prioritizing urgent legislative 
and regulatory actions to protect its territory and population, and maintain its law and publ ic order 
internally, resulting in significant delays for other initiatives. The Arbitrator did not, in principle, rule 
out the possibility that a situation of "emergency in international relations" could qualify as a 
particular circumstance relevant to the  determination of the reasonable period of time. In the 
Arbitrator's view, however, Ukraine had not sufficiently substantiated that there was a situation of 
"emergency in international relations" affecting the reasonable period of time for implementation i n 
this dispute. The Arbitrator stressed that Ukraine had not clarified how or to what extent the period 
of time needed for implementation was affected by the alleged situation of "emergency in 
international relations". Nor had Ukraine explained how it had devised six  months as the additional 
period of time needed in response to the impact entailed by the alleged situation. Crucially, Ukraine 
had not submitted any evidence in support of its allegation that the situation of "emergency in 
international relatio ns" resulted in delays in the conduct of anti -dumping investigations.  
In light of the foregoing considerations, the Arbitrator determined that the reasonable period of time 
for Ukraine to implement the recommendations and rulings of the DSB in this disput e was 11 months 
and 15 days from the date on which the DSB adopted the Panel and Appellate  Body Reports, expiring 
on 15  September  2020. Given access restrictions to the WTO premises , in light of developments 
relating to the COVID -19 pandemic, the award was  issued by electronic means only. The parties did 
not object to such an electronic issuance of the award.   
7  OTHER ACTIVITIES  
7.1  Digital Dispute Settlement Registry  (DDSR) / Disputes Online Registry Application 
(DORA)  
7.1.1   Digital Dispute Settlement Registry (DDSR)  
The WTO  DDSR was developed as a comprehensive application to manage the workflow of the 
dispute settlement process, as well as to maintain digital information  about disputes. This application 
featured: (i)  a secure electronic registry for filing and serving dispute settlement documents online; 
(ii) a central electronic storage facility for all dispute settlement records; and (iii)  a research facility 
on dispute  settlement information and statistics.  WT/AB/30  
 
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  The DDSR provided for the electronic filing of submissions in disputes, and for the  creation of an 
e-docket of all documents submitted in a particular case. The system contained: (i)  a facility to 
securely file submi ssions and other dispute -related documents electronically; (ii)  a means of 
paperless and secure service on other parties of submissions and exhibits; and (iii)  a comprehensive 
calendar of deadlines to assist Members and the Secretariat with workflow manage ment. As a 
storage facility, the DDSR provided access to information about WTO  disputes and served as an 
online repository of all panel and Appellate  Body records.  
In 2019 and early 2020, the Appellate  Body Secretariat continued to develop and test the 
DDSR application, help train WTO  delegates on its various functions, and compile dispute 
information for uploading into the  database. Several i mprovements to the DDSR were finalized, 
tested , and deployed on the DDSR in 2019 , and p articipants and third participants in certain 
appellate  proceedings tested the e -filing feature as part of an appeal pilot phase on a voluntary 
basis.  
7.1.2   Working towards a more user -friendly and intuitive system: Disputes Online 
Registry Application (DORA)  
The programming for the  DDSR project began in 2013, with the first e -filings of submissions in the 
live application taking place in 2015. Since its inception, huge advancements in technology have 
taken place and, in order to enhance the user experience and further improve the ap plication, the 
Secretariat concluded that the best approach was to transfer the DDSR functionalities to a 
new platform.  
With this in mind, the Secretariat suggested an approach that would move the development of the 
WTO's e -filing application in -house and take advantage of more flexible, state -of-the-art software 
platforms. Indeed, using a different platform would enable the WTO to manage the application and 
any changes in -house without recourse to external contractors. The latest technological solutions, 
combined with the close proximity to WTO information technology ( IT) colleagues, would enable the 
Secretariat to respond more quickly to developments in dispute settlement that would require 
modifying the e -filing platform.  
After an analysis of the DDSR an d Members' business needs, the Applications Solutions Branch of 
the WTO's IT Division proposed a new application – the Disputes On line Registry Application (DORA).  
Delegates were introduced to the new platform at a DDSR Working Group meeting in November 
2019. During the meeting, delegates were given a tour of the main features of the application, such 
as accessing dispute documents , uploading and downloading submissions and exhibits , sending and 
receiving messages , and using the timetable and the disputes calendar. The proposed new platform 
was welcomed by delegates and production continued apace thereafter.  
DORA is being developed using the latest technologies available on the market today. It therefore 
has a modern design, is faster and easier to use than  the DDSR, and streamlines the e -filing process. 
Most importantly, it is agile, and modifications can be easily programmed directly into the platform 
by the WTO IT Division, thereby allowing the WTO to almost immediately reflect Members' feedback 
and chang ing requirements. DORA retains the sturdy security features of the DDSR with access 
controls and two-factor authentication, while also  utilizing updated encryption and eliminat ing 
synchronization problems. All data contained in the DDSR are being migrated to DORA.  
Given the agility of the new platform, the Secretariat has been able to initiate the first phase of 
implementation during the first half of 2020. During this phase, parties and third parties in new 
disputes are invited to begin to use DORA to e -file their submissions as the official repository of the 
dispute settlement records for those proceedings. In addition, parties and third parties in current 
panel proceedings are also invited to begin using DORA's e -filing mechanism in parallel to making 
their submissions via e -mail and paper as provided for in their panels' working procedures. At the 
second phase of implementation, the Secretariat envisages transitioning toward using DORA as the 
official mechanism for filing documents in all dispute settlem ent proceedings. The timing for this 
transition will be subject of further consultation with Members.   WT/AB/30  
 
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  7.2  The John H. Jackson Moot Court Competition  on WTO Law  
2019 and 2020 marked the 17th and 18th edition respectively  of the John H. Jackson Moot Court 
Competition on WTO Law, previously known as the European Law Students' Association (ELSA) Moot 
Court Competition on WTO Law. The WTO has supported this competition, since its inception, as a 
technical sponsor. The competition has proven to be a useful tool  in promoting development of 
international trade law and WTO -related studies. In the course of the competition, each participating 
student team represents both the complainant and the respondent in a fictional dispute and prepares 
both written and oral sub missions.  
In 2019, the competition continue d to grow, with more than 90 universities from all over the globe 
participating. The moot case for the 17th edition, authored by Maria Anna Corvaglia from the 
University of Birmingham and Rodrigo Polanco from the World Trade Institute at the University of 
Bern, concerned sustainable energy production and raised issues relating to government 
procurement, rules of origin, and prohibited subsidies.  
The regional rounds of the  17th edition of the  competition took place between February and April 
2019 in Nairobi (Kenya), Vienna (Austria), Prague (Czech Republic), Singapore, and Washington  DC 
(United  States). In each of these rounds, WTO staff members, including staff of the Appellate  Body 
Secretariat, served as panelists.  In addition, staff from the Appellate  Body Secretariat, together with 
staff of other WTO divisions, provided support to the competition through technical advice on the 
subject matter and assistance with organizational issues, including hosting the final r ound in Geneva, 
Switzerland. The top 22 teams from regional rounds qualified for the final round, hosted by the 
Graduate Institute of International and Development Studies and the WTO in Geneva.  
The final round was held on 4 -8 June 2019. Students had the opportunity to plead their case before 
the WTO Secretariat, current and former Appellate  Body Members, leading academics, private 
practitioners, and delegates who served as panelists in the mock dispute. The team from the 
Strathmore University School o f Law emerged as winners, making history as the first African team 
to win this prestigious competition. Harvard Law School faced Strathmore in the Grand Final and 
became the runner -up. 
The 18th edition of the competition took place amid global pandemic cau sed by COVID -19. As a 
result, while two European rounds took place in person in February and early March in Kiev (Ukraine) 
and Brno (the Czech Republic), four regional rounds (American, African and South - and East -Asian) 
took place virtually to ensure safe ty of the participants and compliance with various travel 
restrictions. Despite these unprecedented challenges, unwavering enthusiasm and interest in the 
competition was shared among the total of 76 participating universities from all corners of the world.  
The moot case for the 18th edition, authored by Geraldo Vidigal, Assistant Professor at the University 
of Amsterdam (UvA), raised issues such as recognition of equivalence and application of 
SPS measures in the context of a regional trade agreement, most favoured nation treatment, and 
exceptions under the GATT 1994.  
During the regional rounds, WTO staff members, including staff of the Appellate Body Secretariat, 
served in person, as well as virtually, as panellists. In addition, staff from the Appellate Bo dy 
Secretariat, together with staff of other WTO divisions, provided support to the competition through 
technical advice on the subject matter and assistance with organizational issues, including hosting, 
for the first time in the history of the competitio n, the virtual final round, in which 20  teams 
participated.  
The final round was held on 22 -28 June 2020. Students had the opportunity to plead their case 
before the WTO Secretariat, leading academics, and private practitioners, who served as panelists 
in the mock dispute. The team from the Government Law College, Mumbai, emerged as winners. 
Belgium’s Katholieke Universiteit Leuven faced the Government Law College, Mumbai in the Grand 
Final and became the runner -up. 
The winning teams in the regional and fin al rounds were offered prizes by the WTO and the 
competition's academic supporters, which were Georgetown University and the World Trade Institute 
during the 17th competition, and Georgetown University, World Trade Institute, IE University and 
European Pub lic Law Organization during the 18th edition.  WT/AB/30  
 
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  7.3  Technical assistance activities  
The Appellate  Body Secretariat staff participates in trade -related technical assistance activities, 
organi zed by the WTO, aimed at helping developing countries build their trade capacity, so that they 
can participate more effectively in global trade. A summary of these activities carried out by 
Appellate  Body Secretariat staff during the course of 2019 can be found in the table below.  
APPELLATE BODY SECRETARIAT PARTICIPATION IN  
TECHNICAL ASSISTANCE ACTIVITIES IN 2019  
Course / Seminar  Location  Dates  
Regional Trade Policy Course for French -
speaking African Countries – Dispute 
Settlement Module  Abidjan, Côte d'Ivoire  1-3 April 2019 
Regional Trade Policy Course for English -
speaking African Countries – Dispute 
Settlement Module  Port Louis, Mauritius  10-13 June 2019 
Regional Trade Policy Course for Caribbean 
Countries – Dispute Settlement Module  Port of Spain,  
Trinidad and Tobago  15-18 July 2019 
Regional Trade Policy Course for Latin 
American Countries – Dispute Settlement 
Module  Mexico City, Mexico  9-12 September  2019 
Regional Trade Policy Course for  
Central and Eastern Europe, Central Asia 
and the Caucasus ( CEECAC ) – Dispute 
Settlement Module  Almaty, Kazakhstan  21-23 October  2019 
WTO Regional Workshop on Dispute 
Settlement for Central and Eastern Europe, 
Central Asia and the Caucasus  Vienna, Austria  22-25 October  2019 
Short Trade Policy Course for  Asociación 
Latinoamericana de Integración/Associação 
Latino -Americana de Integração  (ALADI ) 
Member Countries  Montevideo, Uruguay  14-15 November  2019 
 
  WT/AB/30  
 
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ANNEX 1  
FAREWELL SPEECH  
28 MAY 2019 
APPELLATE  BODY  MEMBER PETER VAN DEN BOSSCHE  
Ambassador Walker, Deputy Director -General Brauner, excellencies, colleagues, friends, ladies and 
gentlemen,  
I stand here before you with a heavy heart but not because this is my farewell. I served on 
WTO dispute settlement appeals for nine years, three mo nths, and three weeks, and that is long 
enough. Some of you may well say that my parting is much overdue and that I overstayed my 
welcome. I stand before you with a heavy heart because of the current crisis in the rules -based 
multilateral trading system. W hile it is a system that needs much improvement to be fair to all, as 
well as adapted to 21st-century realities, the rules -based multilateral trading system, as it 
progressively developed since the late 1940s, has served us well. It has allowed hundreds of  millions 
of people to escape from poverty and has brought continued prosperity to many others. It has also 
been instrumental in keeping trade and broader economic disputes from boiling over and escalating 
beyond control.  
At the core of a well -functioning multilateral trading syst em is an effective dispute resolution 
mechanism. The Uruguay Round negotiators understood this. They therefore agreed on the 
WTO Dispute Settlement Understanding, the DSU, to provide security and predictability to the 
multilateral trading system and to strengthen that system by prohibiting any WTO Member from 
determining unilaterally whether another Member violates its obligations under WTO law. As 
Professor  Claus -Dieter Ehlermann, one of the original seven Appellate  Body members , wrote in 2003, 
the successful conclusion of the DSU was an extraordinary achievement that comes close to a 
miracle. With its combination of compulsory jurisdiction, independent and impartial adjudicators, 
appellate review, and binding rulings, the WTO dispute settlement system is indeed unique among 
international mechanisms for the resolution of disputes between sovereign states. Not surprisingly, 
it quickly became the most used state -to-state dispute resolution mechanism, and was acclaimed 
the jewel in the crown of the WTO. Those working in other fields of international law looked on with 
envy.  
While there was high degree of satisfaction among WTO Members with the functioning of their 
dispute settlement system, concerns regarding certain aspect s of the system were raised almost 
from the beginning. Many proposals to address these concerns were made and discussed, first in 
the context of the DSU review in 1998 and 1999, and later in the Doha Round negotiations on 
DSU reform. These negotiations cam e to nothing, and this is unfortunate because while some 
proposals aimed at introducing more Member control over dispute settlement, most proposals 
focused on further strengthening the system. How different is the situation today!  
In response to concerns r aised by the United  States , in particular regarding the functioning of the 
Appellate  Body, and the United  States ' obstruction of the appointment of Appellate  Body members , 
more than 20 WTO Members have made – individually or in groups – proposals for the r eform of 
WTO appellate review. These proposals seek to address the United  States ' concerns relating to the 
alleged "overreach" by the Appellate  Body, the precedential effect of case law, the 90 -day timeframe 
for appellate review, the Appellate  Body's revie w of factual findings, including findings on the 
meaning of domestic law and the transition rules for outgoing Appellate  Body members . However, 
unlike most of the proposals for reform made in the context of the Doha Round negotiations, the 
proposals for re form currently discussed no longer have the ambition to strengthen the system but 
are merely aimed at ensuring its survival in some form or another. It is not my intention in this brief 
farewell speech to put up a strong defence of the Appellate  Body and its functioning to date, or to 
engage in a detailed discussion of the reform proposals. Both such defence and discussion deserve 
more attention than I can give to either of them here and now. For the same reason, I will also not 
attempt in this speech to pu t the crisis of WTO dispute settlement in the broader context of the crisis 
in global governance, a crisis that manifests itself in the re -emergence of unilateralism and the 
failure to address global issues through earnest dialogue and cooperation.  WT/AB/30  
 
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  With r egard to the proposals on the reform of WTO appellate review currently under discussion, 
I will, however, say the following. First, while Members have made, and now discuss, multiple 
proposals on the reform of WTO appellate review to address the concerns r aised by the 
United  States , very few, if any, of these Members consider that there is something so fundamentally 
amiss with the Appellate  Body and its functioning that blocking the appointment of Appellate  Body 
members – and thus endangering the very exist ence of the Appellate  Body – is an appropriate and 
proportionate action. In this regard, I note that no less than 75  WTO Members have made, 
repeatedly, a joint proposal urging the DSB to fill the vacancies on the Appellate  Body without delay. 
Second, to th e extent that the concerns addressed in the reform proposals are legitimate, and some 
of them certainly are, these concerns can be addressed without undermining the essential features 
of the current system. The proposal made by Thailand on 25  April 2019 (W T/GC/W/769) shows the 
way forward in this regard. In an attempt to address the concerns raised by the United  States , some 
other WTO Members have made proposals that would significantly change essential features of the 
current system. It is, however, not cl ear to me, as I am sure it is not clear to most of you, whether 
any reform of the current system, short of its virtual elimination, will satisfy the United  States . The 
United  States  has stated – most recently at the General Council meeting of 7  May 2019 – that the 
Appellate  Body should follow the rules set out in the DSU. Nobody would disagree with that, but the 
United  States  has largely remained silent on what this actually means an d has not engaged in the 
discussions on any of the reform proposals currently on the table.  
I am afraid that – in spite of the most determined efforts of Ambassador Walker, efforts for which 
I would like to commend him, as well as the efforts of many WTO Members – it is ever more likely 
that the current crisis will be not be resolved by 11  December  2019. If this is indeed the case, the 
Appellate  Body will no longer be able to hear and decide new appeals from that day onwards. As set 
out in Article  16.4 of the DSU, a panel report cannot be adopted by the DSB and become legally 
binding until after completion of the appeal. One can predict with confidence that, once the 
Appellate  Body is paralyzed, the losing party will in most cases appeal the panel report an d thus 
prevent it from becoming legally binding. Why would WTO Members still engage in panel proceedings 
if panel reports are likely to remain unadopted and thus not legally binding? As from 
11 December  2019, it is therefore not only appellate review, but also the entire WTO dispute 
settlement system that will no longer be fully operational and may progressively shut down.  
While the United  States  may welcome such an outcome, most other WTO Members obviously would 
not. A return to some kind of pre -WTO disput e settlement system means a return to dispute 
settlement in which economic and other might trumps legal right. As Judge James Crawford of the 
International Court of Justice recently commented, for international trade dispute settlement, this 
would be "back  to square one". Ambassador Julio Lacarte -Muró, the first Chair of the Appellate  Body, 
wrote in 2000 that the WTO dispute settlement system gives security to those WTO  Members that 
"have often, in the past, lacked the political or economic clout to enforce  their rights and to protect 
their interests". Most WTO  Members do not want international trade without rules, or to be more 
precise, international trade with rules that are whatever the strongest party to a dispute says the 
rules are. They have a strong i nterest in an effective rules -based dispute settlement system.  
Perhaps WTO  Members will be able to reach in 2021, or sometime soon thereafter, consensus on 
reforms to the WTO dispute settlement system, and in particular WTO appellate review, that would 
preserve and even strengthen the key features of the current system, namely compulsory 
jurisdiction, the independence and impartiality of the adjudicators, appellate review, and binding 
rulings. However, if consensus among all WTO  Members on such reforms is not possible, a coalition 
of willing WTO  Members should consider establishing a new parallel dispute settlement system that 
would copy the existing, but dysfunctional, DSU, in order to settle WTO disputes between them in 
an orderly and rules -based manner. While recourse to Article  25 of the DSU for appellate review or 
agreements between parties not to appeal may, for some time and in some cases, allow Members 
to ensure the availability of WTO dispute settlement, these are not long -term solutions.  
Between De cember 2009 and March 2019, I have served on 20 appeals and have participated in the 
exchange of views in another 18 appeals. I feel very privileged to have been given the opportunity 
to serve the international community in this way. My experience as a WTO  appellate judge has 
taught me – most appropriately – intellectual humility, and it has given me tremendous respect for 
the knowledge, skills, and dedication of those involved in WTO dispute settlement. Few of the 
questions of interpretation or application  that come to the Appellate  Body have a simple answer. 
Giving them a simple answer would not do justice to the arguments advanced by at least one of the 
parties. I have often struggled with what was the correct interpretation and/or application of the WT/AB/30  
 
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  relevant WTO provisions in a particular case. The most challenging cases for me were those 
regarding the balance struck in the relevant WTO agreement between free trade and conflicting 
societal values, as well as cases regarding the proper role under WTO law o f governments in the 
economy. The Appellate  Body rulings in these cases have not seldom been severely criticized by 
Members. I have always – as have my colleagues on the Appellate  Body – taken such criticism to 
heart, even when it was often merely a repetition of the arguments that were already presented 
during the appellate proceedings, were extensively addressed, and were found wanting by the 
Appellate  Body. Some of these much -critici zed rulings may have been in error. To say it in Latin, 
errare  humanum  est, but I am confident that wiser women and men on panels and the 
Appellate  Body can and will in the future correct such mistakes, if and when they get the chance to 
do so. The Appella te Body never proclaimed it is infallible, just as it never proclaimed that its reports 
constitute binding precedent.  
I have very often been impressed by the knowledge and skills of the lawyers, whether government 
officials or private practitioners, pleadi ng before the Appellate  Body. In response to the 
Appellate  Body's remorseless questioning at the oral hearing, I have seen a lot of impressive 
"thinking on your feet". I have also admired the lawyers ' patience with our questioning, which may, 
at times, hav e revealed that, unlike them, we were still trying hard to come to grips with the 
complexity of the issues on appeal.  
I have been equally impressed by many panels. I have never envied their difficult task to get the 
facts straight and to have a first shot  at the correct interpretation and/or application of the relevant 
WTO provisions. With regard to the latter, I often found that the Appellate  Body very much benefit ted 
from the fact that the parties ' argumentation on appeal was more sophisticated and bette r 
articulated than their argumentation at the panel stage.  
Finally, allow me to pay tribute to my colleagues on the Appellate  Body and the staff of the 
Appellate  Body Secretariat. Over the past nine years, I had the privileged to serve with 12 fellow 
Appellate Body members . While the differences in our professional background and our approach to 
law were pronounced and our disagreement on important issues often profound, we worked well 
together. I learned from each of my fellow Appellate  Body members , and I am indebted to them for 
that. I could not have wished for better colleagues, especially in times that were difficult for me on 
a personal level. As for the Appellate  Body Secretariat, I can but say that its director, its senior and 
junior lawyers (past a nd present), and its support staff (past and present) are the most accomplished 
and dedicated professionals that I have ever worked with. It was a privilege for me to work with 
them on a daily basis for the past nine years. I will miss them dearly and wish  them the professional 
recognition and success they so clearly deserve.  
I cannot but conclude this farewell speech on a sombre note. There are very difficult times ahead 
for the WTO dispute settlement system. This system was – and currently still is – a glorious 
experiment with the rule of law in international relations. In six months and two weeks from now, 
this unique experiment may start to unravel and gradually come to an end. History will not judge 
kindly those responsible for the collapse of the WTO d ispute settlement system.  
 WT/AB/ 30 
 
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 ANNEX 2 
LAUNCH OF THE WTO APPELLATE BODY'S ANNUAL REPORT FOR 2018  
28 MAY 2019 
ADDRESS  OF MR UJAL SINGH  BHATIA, 2018 CHAIR OF THE  APPELLATE  BODY  
Excellencies, Ladies and Gentlemen,  
This is possibly the last time I speak in public as a member of the AB. it is also, possibly one of the 
last times the AB speaks tout court . Unless something extraordinary happens, in December 2019, 
the AB will fall below the three -member quorum necessary to compose Divisions and hear appeals.  
I have had the privilege of serving two consecutive terms as the Chair of the Appellate  Body. From 
the perspective of the Appellate  Body, it is no overstatement to say that we are living in 
extraordinary times.  
In 2018, the Appellate  Body's docket continued to grow with increasingly complex appeals. In the 
same year, the membership of the Appellate  Body was reduced from the already diminished number 
of four to three.  
Despite these challenges, in 2018, the Appellate  Body circulated nine Appellate  Body reports 
concerning six matters, including the Appellate  Body Report in EC and certain 
member  States  – Large Civil Aircraft (Article  21.5 – US). The covered agreements addressed by the 
2018 Appellate  Body reports included  the Anti -Dumping Agreement, the SCM  Agreement, the 
GATT  1994, the TRIMs  Agreement, the TBT  Agreement, and the DSU. These Appellate  Body Reports 
dealt with sensitive issues spanning prohibited and actionable subsidies, animal welfare, domestic 
tax regimes,  and unfair trade. The appeal in US – Large Civil Aircraft (2nd complaint) 
(Article  21.5 – EU), filed in  2017, continued to occupy a significant portion of the resources of the 
Appellate  Body and its Secretariat in 2018. Moreover, starting in 2017, and con cluding in 2018, the 
Appellate  Body Secretariat assisted an Arbitrator in issuing his award concerning the reasonable 
period of time for implementation of the panel and Appellate  Body reports in US – Anti-Dumping 
Methodologies (China) (Article  21.3(c)) .  
This is not the end of the story. In addition to the circulated Appellate  Body reports and arbitration 
award, 12 panel reports concerning 11 matters were appealed in 2018. In sum, the heavy workload 
of the Appellate  Body continues unabated.  
These indicators  would appear to suggest that WTO Members consider the appellate system to be a 
key pillar of a robust and effective dispute settlement mechanism. However, the transformation of 
the AB from "crown jewel" to a problem child in urgent need of reform in the s pace of a few months 
has been as dramatic as it is mystifying. My job today is not to explore the reasons for this 
mood  swing, which are self -evident to those who have followed the debate. Nor do I intend to deny 
that the dispute settlement system, includi ng the AB, needs reform.  
Rather, I wish to extend an invitation to all WTO Members as they debate the future of the DSS: if 
good solutions are to be found, the right questions must be asked. Members should think carefully 
about what kind of system they wa nt, what its role and reach should be, and what core principles 
should govern its operation. Only then will Members be able to engage in long -lasting reform 
projects.  
As I see it, the ongoing debates should aim at answering two core questions:  
i. What does i t mean for WTO dispute settlement bodies to provide positive solutions to 
trade disputes?  
ii. What does it take for the DSS to do justice to the needs of all Members, weak and 
strong, and to maintain legitimacy among its stakeholders?  WT/AB/30  
 
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1. What does it mean for W TO dispute settlement bodies to provide positive solutions to trade 
disputes?  
• The DSU indicates that the DS process "serves to preserve the rights and obligations of 
Members under the covered agreements" and "to clarify the existing provisions of those 
agreements" (Art. 3.2).  
• In my view, these two functions are inextricably intertwined, and both serve the 
overarching goal of providing long -lasting and positive solutions to trade disputes. What 
makes the DSS  unique in the field of international  adjudication  is precisely its multilateral 
nature, coupled with extensive third party rights, and the transparency with which rulings 
are disseminated across the WTO Membership.  
• Obviously, under  the DSU, rulings adopted by the DSB are binding only upon the parties 
to the dispute. But by progressively clarifying the content of WTO provisions, panels and 
the AB have offered guidance to Members on how to comply with their WTO obligations, 
thereby promoting WTO -consistent practice and preventing the initiation of countless  
disputes. The importance of such clarifications for the smaller and poorer WTO Members, 
who often lack the resources to examine their trade policies in the context of their 
WTO commitments, must not be disregarded.  
• There is no denying that, on occasion, b oth panels and the AB could have exercised greater 
economy in their legal reasoning. However, one of the core conditions for the legitimacy 
of international dispute settlement is that the adjudicators provide adequate reasons, 
including an interpretation o f the relevant rules, to support their conclusions. If 
adjudicators were to limit their decisions to laconic "consistency/inconsistency" 
statements, the parties in dispute would be stripped of their right to have fully reasoned 
rulings. This would hardly f oster compliance. How helpful would it be for governments to 
overcome domestic resistance against compliance, and to implement 
DSB recommendations consistently with WTO law, if they were not clearly told why their 
measures were violative?  
• Against this backdrop, it is incumbent upon Members to decide where the appropriate 
boundaries of legal reasoning lie, and what role legal reasoning should play in securing 
positive outcomes to disputes.  
• As the debates continue, Members may also want to reflect on the following points:  
o Panels are triers of facts and the AB is a forum to decide on legal interpretations 
developed by panels. But what happens when the factual analysis by panels is flawed, 
contaminating their legal analysis?  
o Is the "completion of analysis" a  valid procedural tool for the AB to employ in view of 
its mandate, given the absence of a proper remand system?  
2. What does it take for the DSS to do justice to the needs of all Members, weak and strong, and 
to maintain  legitimacy among its stakeholders?  
• As we all know, the legitimacy of any multilateral DSS can only be sustained if it is seen 
by Member governments and other stakeholders as operating in a fair, impartial, and 
independent manner. While normative legitimacy is important, at the end of the day,  
legitimacy is about perception and is based on empirical performance. This implicates not 
only the quality of the adjudicators and their decisions, but also their timeliness.  
• In recent months, several delegations have lamented the delays incurred by appel late 
proceedings beyond the 90 days set out in the DSU. Sadly, these critiques are accurate: 
the average duration of appeals completed in 2018 was 395 days. These slippages – which 
worry us as much as they worry Members – were often due to the AB's inabili ty to staff WT/AB/30  
 
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  cases with the reduced number of Appellate  Body members and supporting lawyers, as 
well as the complex nature of the issues raised.  
• However, focusing exclusively on delays in appellate proceedings risks obscuring the 
broader issue of duration o f WTO disputes. In fact, appellate review is but a fraction of the 
total time -length of proceedings, which has been steadily increasing in recent years. 
Suffice it to say that the panel reports the AB reviewed in 2018 took, on average, 859  days 
to complete  against the stipulated 6 months as of panel composition, or, at most, 9  months 
as of panel establishment.  
• Moreover, one must consider the steps that often follow the adoption of panel and 
AB reports, such as the reasonable period of time for implementati on, compliance 
proceedings, and retaliation. When one takes these factors into account, the picture 
becomes quite dramatic. Consider, again, the appeals the AB completed in 2018. The 
original panel requests in those disputes were filed, on average, 2,227 d ays prior to the 
circulation of the latest AB reports. These include the original panel requests in Airbus, 
filed on 3  June 2005, and in Tuna, filed on 9  March  2009. Even discounting these 
extraordinarily lengthy cases, however, the figure remains striking ly high: on average, 
1,267  days have elapsed since the filing of the panel requests and the circulation of the 
AB reports. What is more, some of these disputes are still ongoing as I speak.  
• All this, put together, means that "prompt settlement" of dispute s (Art. 3.3), which earlier 
was the "unique selling point" of the WTO, is firmly a thing of the past. It is this larger 
context of the total life -cycle of WTO disputes which should be the focus of the debate as 
well as of reform initiatives.  
• But if we are  to address the 90 -day issue frontally, it is important to address the problem 
in all its dimensions. In the last 3 years, 29 panel reports have been appealed, meaning 
an average of almost 10 per year. The requirement to complete this number of appeals 
within a 90 -day timeframe has obvious implications for the number of ABMs required and 
staff resources. This would also require a discussion among Members about the size of 
appeals, procedures for extensions of the 90 -day rule, the nature and depth of 
conside ration by the AB, and so on. It would also require discussions about how to 
sequence and structure the queue of unstaffed appeals. Given that AB reports are adopted 
by the DSB by negative consensus, the AB effectively functions as a last instance forum. 
Therefore, the AB must ensure that its interpretations and reasoning are of the highest 
quality and should not be rushed to come to conclusions. In fact, any rushed conclusions 
cannot be corrected (save perhaps, for authoritative interpretations by Members).  
• This has obvious implications for the rigour and attention to detail that must inform 
deliberations in the AB. These considerations are also pertinent for Members' discussions 
of the 90 -day rule.  
One thing should be abundantly clear: ultimately, the perfo rmance and legitimacy of the DSS will 
not rest on some abstract principles of international law, but on its ability to address the pressing 
needs of real -life trade. Every minute we spend without a properly functioning DSS is a minute 
where WTO -inconsisten t measures remain in place, trade flows are hindered, and companies across 
the globe lose precious business opportunities. This accentuates, as nothing else can, the real value 
of an independent and effective dispute settlement system in a multilateral set ting. 
In the next few weeks and months, WTO  Members face critical choices regarding the future of the 
multilateral trading system. Let us be clear – the crisis of the AB is the crisis of trade multilateralism. 
Binding commitments of WTO  Members must necess arily rest on the bedrock of impartial and 
effective dispute resolution. It is difficult to imagine how this can be achieved without a 
well-functioning appellate process.  
The choices that are made will define the prospects for international cooperation in trade for the 
next decades. In appointing Ambassador David Walker as Facilitator for this important debate, 
WTO Members have chosen wisely. I have no doubt they will exhibit similar wisdom in the choices 
they eventually make.  WT/AB/30  
 
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  Finally, I would like to expre ss my deep appreciation for the always competent members of the 
ABS staff who have collaborated to produce the comprehensive Annual Report. My special thanks, 
in no particular order, to Chibole Wakoli, Leslie Stephenson, Alexandra Baumgart, Stephanie Carme l, 
Hugh Lee, and Rhian Wood, as well as others who have contributed case summaries for the Report.  
I cannot conclude without performing a delicate but pleasant task – of paying tribute to my friend 
Peter without embarrassing him inordinately. I have had t he privilege of knowing Peter and being 
his friend for several years now. For much of this time he has been for me a valued guide through 
the maze of legal complexity. He has also been an unerring beacon for all of us in the AB for his 
deep commitment to t he rule of law and to justice. He has always combined academic rigour with a 
deep commitment to justice and equity. But more than anything else, he has been for me the human 
being I would have liked to be. I'm sure Patricia is smiling today. God bless you,  Peter, for what you 
are. 
 WT/AB/ 30 
 
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 ANNEX 3 
APPELLATE BODY DEVELOPMENTS AND CHALLENGES IN 2018  
12TH ANNUAL UPDATE ON WTO DISPUTE SETTLEMENT  AT THE  
GRADUATE INSTITUTE OF INTERNATIONAL AND DEVELOPMENT STUDIES  
10 APRIL 2019  
ADDRESS BY  DR HONG ZHAO, CHAIR OF THE APPELLATE BODY  
Good afternoon.  To begin with, I would like to thank the Graduate Institute, in collaboration with 
the WTO Secretariat, for organizing this annual convention on WTO dispute settlement. I appreciate 
your invitation to me, in my capacity as current Chair of the Appellate Body, to speak about 
developments and challenges of the Appellate  Body.  
 
By all means, the last couple of years has been remarkable and challenging for the App ellate Body 
and the WTO  dispute settlement system as a whole. The hardship stems not only from the protracte d 
backlog of appeals confronting the Appellate Body but also from the reduction in the number of 
sitting  Appellate Body Members to review such cases . At the same time, complicated disputes on 
contentious and sensitive issues, involving multiple complaints, continue to flood in, the institution 
is under unprecedented pressure and being strained to its limit. This situation has never been 
experienced in  the history of the dispute settlement system.  
 
Looking back, with the unabated support from the Members of the WTO and the diligent work of the 
Appellate Body Members and the Secretariat staff, the Appellate Body has delivered its rulings 
without compromi sing on quality. Throughout 2018, t he Appellate  Body has been engaged in appeals 
and has circulated nine Appellate  Body reports concerning six matters, including the Appellate  Body 
report in the massive appeal in EC and certain Member States – Large Civil Aircraft (Article  21.5 – 
US). The matters addressed by these reports involved the GATT  1994, the TRIMs  Agreement, the 
TBT Agreement, the Anti -Dumping  Agreement, the SCM  Agreement, and the DSU. These disputes 
dealt with sensitive issues ranging from prohibi ted and actionable subsidies, safeguards, animal 
welfare, and domestic tax regimes to trade remedies. The exceptionally large appeal in US – Large 
Civil Aircraft (2nd complaint) (Article  21.5 – EU), filed in 2017, continued to occupy a significant 
portion of the resources of the Appellate  Body and its Secretariat throughout the last year. The 
Secretariat also assisted an Arbitrator in his award concerning the reasonable period of time for 
implementation of the panel and Appellate  Body reports in US – Anti-Dumping Methodologies 
(China) (Article 21.3(c)) . In addition, 12  panel reports concerning 11 matters were appealed 
in 2018. Furthermore, two additional appeals have been filed in the first quarter of 2019. Therefore, 
currently there are 13 appeals pending b efore the Appellate Body. These figures indicate Members' 
unwavering confidence in the dispute settlement system, including its appellate process.  
 
In a nutshell, despite the current crisis, the heavy workload of the Appellate  Body will continue for 
the d ays ahead. Needless to say, and it is known to many, the tenure of two of the three current 
Appellate Body Members will expire on 10 December 2019. The Appellate Body will not be able to 
review any new appeals after that date without replacement of these v acancies. This could paralyze 
the whole dispute settlement system, or as some may argue, lead it back to the old GATT era, when 
panel reports could be adopted only when both parties endorsed them. Under the current DSU, if 
any Member chooses to appeal a pa nel report after the above -mentioned date, that dispute 
settlement process could be suspended indefinitely, if no break -through could be achieved on the 
current impasse by December of this year.  
 
This is more than simply alarming.  
 
Fortunately, Members o f the WTO are actively and earnestly seeking to resolve this impasse. A 
number of proposals were put forward by Members and Groups of Members to the DSB and the 
General Council throughout last year. WTO Members discussed a number of substantive and 
procedu ral concerns regarding the functioning of the Appellate Body, at both formal and informal WT/AB/30  
 
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  sessions of the DSB and the General Council in 2018.1 Moreover, starting in January 2019, under 
the auspices of the General Council, Ambassador David Walker of New Z ealand has been assisting 
the Chair of the General Council, as a facilitator, to lead an informal process of focused discussions 
on Appellate  Body matters. Needless to say, the resolution of the concerns pertaining to Appellate 
Body requires the political commitment of all WTO  Members. The famous saying in multilateral 
negotiations is "wherever there is a will, there is a way". I believe that the technical issues concerning 
the Appellate Body can be resolved. In fact, I am confident that the current process  will benefit from 
Members understanding each other, narrowing differences and eventually striking a deal to break 
the deadlock.  
 
Given the early stage of discussions among Members, and being the Chair of the Appellate Body, I 
won't elaborate on the issues  under discussion today. The Appellate Body believes that it is the 
WTO Members' right and obligation to take their decisions about the future of the WTO dispute 
settlement system. The Appellate Body remains ready to assist the entire Membership in settlin g 
their disputes under the covered agreements. We are well aware of our duties and responsibilities, 
and we will impartially and faithfully fulfil them within our mandate according to the rules set forth 
in the DSU.  
 
Having discussed the developments pertaining to Appellate Body in 2018, I will now take this 
opportunity to speak about some broader perspectives of the history of international adjudication as 
a background for delegations, academia and the public to consider how to unlock the  current crisis 
of the dispute settlement system at the WTO.  
 
First, from War to Peaceful Settlement of Disputes: A Milestone in the History of Human 
Civilization  
 
The English philosopher Sir Francis Bacon said "Histories make men wise".2  
 
History seems to show that it was not unusual that war and armed conflict had been used to settle 
disputes among nations for a long time. Thus, some international law scholars of the 19th and the 
early 20th centuries were of the view that international law  "exists solely or mainly in order to make 
war a human and gentlemanly occupation".3 The early influential work on public international law, 
De Jure Belli ac Pacis  (On the Law of War and Peace ), written by Hugo Grotius in 1625, included a 
few chapters on the issues of war. At the same time, dispute settlement in a peaceful and civilized 
manner such as through third -party mediation, conciliation, and arbitration has been tried and 
practiced for many centuries. In Europe, arbitration, as practiced by the Gre ek city -states and the 
communities within the Roman Empire was advocated for by Professors Hugo Grotius and Emmerich 
De Vattel as an effective peaceful means of dispute settlement among nation -states. As one of the 
famous international law theorists of his  time, Prof. De Vattel regarded arbitration as "a practical, 
rational and ethical means of resolving interstate disputes."4 
 
Throughout human history, in the east and in the west, it took long time for nations to commit to 
subjecting themselves to a set o f rules aimed at ending wars and maintaining peace. The solemn 
treaty between the rulers of Lagash and Umma in Ancient Mesopotamia around 2100 BCE was the 
earliest document evidencing such efforts.5 In 1648, following three years of negotiations, the part ies 
to the Peace Treaty of Westphalia committed to a set of rules and principles recognizing the 
sovereignty of co -equal states, non -intervention, religious tolerance, and the peaceful settlement of 
disputes through "amicable settlement or legal discussion s", thereby putting an end to the 
devastating 30 Years' War in Europe. This marked not only the birth of modern international law, 
 
1 The concerns discussed are contained in the following WTO documents: WT/DSB/M/407; 
WT/DSB/M/409; WT/DSB/M/410; WT/DSB/M/412; WT/DSB/M/413; WT/DSB/M/414; WT/DSB/M/415; 
WT/DSB/M/417; WT/GC/W/752/Rev. 2; WT/G C/W/753; WT/GC/W/754/Rev. 2; JOB/DSB/2; and 
WT/DSB/M/415.  
2 Francis Bacon: "Histories make men wise; poets, witty; the mathematics, subtle; natural philosophy, 
deep; moral, grave; logic and rhetoric, able to contend." ( The Collected Works of Sir Francis Bacon ) 
3 Prof. Brierly disagreed with those who held this view by regarding it as one of the "possible two 
popular misconceptions about its character of (the law of nations)". See Brierly's Law of Nations: An 
Introduction to the Role of International Law in International Relations , the preface to the first edition, 
published in its seventh edition, Oxford University Press, 2012.  
4 J. Allain, A Century of International Adjudication: The Rule of Law and Its Limits , The Hague, 
Netherlands: TMC. Asser Press 2000, p. 14.  
5 Malcolm N. Shaw, International Law , eighth edition, Cambridge University Press, 2017, p. 10.  WT/AB/30  
 
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  but also of the peaceful settlement of international disputes entering a new era, premised upon the 
widely accepted common va lues and the founding principles of public international law.  
 
From today's global point of view, these were only regional peace frameworks. Seven decades ago, 
after the Second World War, a multilateral framework aiming at maintaining peace and security wa s 
created after the sacrifice of tens of millions of lives. Today, based on that framework, we witness 
the proliferation of hundreds of treaties and countless international legal documents in various fields. 
International law has become an essential pillar  of the present international order. Maintaining peace 
and prosperity has become the ultimate goal and objective of international law in all domains.  
 
While material achievements of human civilization are physically visible, invisible institutional 
achiev ement, though more precious, is easily ignored.  
 
After seven decades, it seems that international dispute resolution has come to a crossroad, and it 
is high time to decide whither the next step?  
 
Second, from Arbitration to International Courts: An Orient ation Toward an International 
Judiciary Institution (an Evolution of International Adjudication)  
 
As civilization progresses, the ways and methods of peaceful settlement of disputes among nations 
proliferate. Except for bilateral consultation, good offices , third -party mediation and conciliation, and 
arbitration are all viable means of peaceful settlement of disputes among States. Remarkably, the 
rise of the international court as a prominent means of conflict resolution has become a monumental 
achievement in the peaceful settlement of disputes in human history.  
 
Academic studies show that the rise of international adjudication was closely connected with the 
peace movements in the late 19th century to the first half of 20th century.6  
 
The establishment of  the Permanent International Court of Justice (PICJ) in 1922, which was 
transformed into the International Court of Justice (ICJ) in 1946, represented the voluntary 
acceptance of jurisdiction of International Courts. After the Cold War, six permanent inter national 
courts7 existed, along with the non -compulsory dispute settlement system of the GATT 1947 and 
the European Court of Justice, which operates effectively on a regional basis. According to the Oxford 
Handbook on International Adjudication  of 2014, currently there ar e at least two dozen permanent 
internationals courts (ICs) that have collectively issued more than tens of thousands legal 
judgements. More than 90% of these rulings have been issued after the fall of Berlin Wall.8 The 
greater influence of international a djudication today is not simply a matter of numbers. While the 
early international adjudication bodies were primarily invoked on a voluntary basis, there has been 
a marked shift to compulsory jurisdiction, often with non -state actors also having access to 
international adjudication.  
 
In general, the rise of the international court with compulsory jurisdiction elevates the 
institutionalization of the peaceful settlement of disputes among States to a new level.  
 
Third, Reassess the Appellate Proceedings at th e WTO: Its Unique Value  
 
Among the two dozen international adjudicatory bodies, the WTO Appellate Body is one of the very 
few that actively operates as an appeal mechanism on a multilateral basis.9 
 
The Appellate Body was established when the GATT multilateral dispute settlement was vested with 
compulsory jurisdiction and the negative consensus rule in the DSU. The right to appeal was a 
compromise ensuring institutional balance for WTO Members to acce pt such changed rules. It 
provides for a standing body comprising seven Members with recognized authority in international 
trade, elected by all Members to serve on a fixed -term basis with representation from different world 
regions. The selection process has designed to ensure democracy and legitimacy to the composition 
of the Appellate Body. The seven Members have equal opportunities to form, by random rotation, a 
 
6 The 1889 Universal Peace Congress, the peace -through -law movement , etc. a ll helped the shift from 
arbitration to international courts.  
7 The European Court of Justice (ECJ) represents an active and effective international court.  
8 The Oxford Handbook of International Adjudication , Oxford University Press, 2014, p. 54.  
9 See the studies of the Oxford Handbook on International Adjudication , Oxford University Press, 2014.  WT/AB/30  
 
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  three -Member division to conduct a final review of the legal issues Members appealed in pane l 
reports.  
 
By analogy, if multi -level court systems within the domestic judicial regime foster the advancement 
of justice to citizens of a country, the appellate stage represents a higher level of justice and fairness 
within the WTO dispute settlement fo r its Members. The right to appeal a panel report is an 
entitlement of Members that is enshrined in the multilateral trade system since the Uruguay Round. 
The number of cases resolved by the system and the remarkably high rate of implementation are 
indicat ors of the effectiveness of the institution.  
 
Having made those remarks, it should be emphasized that the Appellate Body never claims to be 
perfect. On the contrary, the Appellate Body Members constantly recognize the need to actively 
engage in improving t heir practices, both in adjudication and internal management. The 
Appellate  Body Members are willing to listen to the concerns of WTO Members and are ready to 
respond constructively to Members' reform proposals once the DSB reaches consensus. The 
Appellate  Body appreciates Members' understanding of the chronic backlog of cases, on the 
one hand, and the limited resources of Appellate Body, on the other hand. In response to concerns 
over lengthy and complex reports, the Appellate Body has introduced a brief s ummary of its findings 
at the end of each of its reports for the last three years, and has significantly reduced the length of 
its reports when compared with previous years. The Appellate Body is open to further improvements 
and is always determined, to th e best of its capacities, to provide an adjudicatory service of high 
quality to WTO Members. This commitment has never changed and will never change.  
 
Let me conclude by emphasizing that the WTO dispute settlement system is at a historical juncture.  
 
While the international adjudication system has been created and serves the purposes of maintaining 
world peace, the weakening of such institution enlarges the risks and threatens the interests of all.  
 
Therefore, this is high time for the Members of the WTO t o take decisive action and to guide the 
future of its dispute settlement system.  
 
Thank you for your attention.  
 
 WT/AB/ 30 
 
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 ANNEX 4 
MEMBERS OF THE APPELLATE  BODY  WHO SERVED ON APPEALS  
FOR WHICH REPORTS WERE CIRCULATED IN 2019 -2020 
BIOGRAPHICAL NOTES  
Ujal Singh Bhatia  (India) (2011 -2019)  
Ujal Singh Bhatia was born in India on 15  April 1950. He was India's Ambassador and Permanent 
Representative to the WTO from 2004 to 2010 and represented India in a number of dispute 
settlement cases . He also served as a WTO dispute settlement panelist in 2007 -2008.  
Mr Bhatia has served in senior positions in the Government of India as well as in Orissa State in 
various administrative assignments that involved development administration and policy -making. 
His legal and adjudicatory experience spans over three decades, and has involved domestic and 
international legal/jurisprudence issues, as well as negotiation of bilateral, regional, and multilateral 
trade agreements.  
Mr Bhatia has often lectured on i nternational trade issues and has published numerous papers and 
articles on a range of trade and economic topics. He holds an MA in Economics from the University 
of Manchester and from Delhi University, as well as a BA (Hons) in Economics, also from 
Delhi University.  
Thomas R. Graham  (United  States) (2011 -2019)  
Thomas R. Graham is the former head of the international trade practice at King & Spalding, and he 
was the founder of the international trade practice at Skadden, Arps, Slate, Meagher & Flom. He was 
one of the first US lawyers to represent respondents in trade remedy cases in various countries 
around the world, and he was among the first to bring economists, accountants, and other 
non-lawyer professionals into the international trade practices of private law firms.  
Prior to entering private practice, Mr Graham served as Deputy General Counsel in the Office of the 
US Trade  Representative. Earlier in his career, he was a Legal Officer of  the United Nations, in 
Geneva, and a visiting professor of law and assistant to the president of Ford Motor Company, in 
Caracas, Venezuela.  
Mr Graham was the founding Chair of the American Society of International Law's Committee on 
International Economic  Law. He served as Chair of the American Bar Association's Subcommittee on 
Exports. He has been an adjunct professor at Georgetown Law School, and a Guest Scholar at the 
Brookings Institution. He has edited books on international trade policy, and on inter national trade 
and environment, and has authored articles and monographs on international trade law and policy. 
He also is the co -author, with his daughter, of Getting Open: The Unknown Story of Bill Garrett and 
the Integration of College Basketball  (Simon  & Schuster, Atria Books, 2006; Indiana University, 
paperback, 2008).  
Mr Graham received his undergraduate degree from Indiana University, and his JD from Harvard 
Law School.  
Shree Baboo Chekitan Servansing  (Mauritius) (2014 -2018)  
Born in Mauritius on 22  April 1955, Shree Baboo Chekitan Servansing enjoyed a long and 
distinguished career with the Mauritian civil service. From 2004 to 2012, Mr Servansing was 
Mauritius' Ambassador and Permanent Representative to the United Nations Office and other 
Internationa l Organizations in Geneva, including the WTO. During his tenure as Permanent 
Representative, he served on various committees at the WTO, and chaired the Committees on Trade 
and Environment, and Trade and Development. He also chaired the Work Programme on S mall 
Economies, the dedicated session on Aid -for-Trade, and the African Group, and was coordinator of 
the African Caribbean Pacific (ACP) Group.  WT/AB/30  
 
- 169 - 
 
  Mr Servansing previously worked, in various capacities, for the Mauritius Ministry of Foreign Affairs 
in Maurit ius, India, and Belgium. During his tenure at the Mauritius Embassy in Belgium, he was 
intensively involved in the ACP -EU negotiations leading to the Cotonou Agreement and subsequently 
in the Economic Partnership Agreement (EPA) negotiations. Mr Servansing  also served as the 
personal representative of the Prime Minister of Mauritius on the Steering Committee of the 
New Partnership for Africa's Development (NEPAD). In this capacity he was engaged in the strategic 
formulation of Africa's flagship development framework.  
Upon retiring from civil service, Mr Servansing served as the head of the ACP -EU Programme on 
Technical Barriers to Trade in Brussels from 2012 to 2014. In this position, he was responsible for 
facilitating the building of capacity among ACP cou ntries in order to enhance their export 
competitiveness, and improve their Quality Infrastructure to comply with technical regulations.  
Mr Servansing's experience in trade policy, trade negotiations, and the multilateral trading system 
spans three decades.  He has frequently spoken on international trade issues, and has published 
numerous papers and articles in Mauritian and foreign journals on a variety of trade -related issues.  
Mr Servansing  holds an MA from the University of Sussex, a Postgraduate Diploma in Foreign Affairs 
and International Trade from Australian National University, and a BA (Hons) from the University of 
Mauritius.  
Peter Van den Bossche  (Belgium) (2009 -2017)  
Peter Van den B ossche is Director of Studies of the World Trade Institute and Professor of 
International Economic Law at the Faculty of Law of the University of Bern, Switzerland. Since 2018, 
he serves as President of the Society of International Economic Law. From 2009 to 2019, he was a 
member of the Appellate  Body of the W TO and served as Chair of the Appellate  Body in 2015. He is 
an honorary professor at Maastricht University, the Netherlands, and a visiting professor at the 
College of Europe, Bruges, Belgium, the Univ ersidad San Francisco de Quito, Ecuador, and the LUISS 
Guido Carli University, Rome, Italy. He is a member of the Advisory Board of the Journal of 
International Economic Law , the Journal of World Investment and Trade , the Revista 
Latinoamericana de Derecho  Comercial Internacional , and the Chairs Programme of the WTO.  
Dr Van den Bossche holds an LL.M. from the University of Michigan, Ann Arbor (1986) and a Ph.D.  in 
law from the European University Institute, Florence (1990). He graduated magna cum laude from  
the Faculty of Law of the University of Antwerp (1982). Dr Van den Bossche worked at the Court of 
Justice of the European  Communities , Luxembourg, as référendaire of Advocate -General 
W. Van Gerven (1990 -92), after which he joined the Faculty of Law of Maa stricht University. From 
1997 to 2001, Dr Van den Bossche was Counsellor to the Appellate  Body. In 2001, he served as 
Acting Director of the Appellate  Body Secretariat, after which he returned to Maastricht University 
as Professor of International Economic Law. From 2005 to 2009, Dr Van den Bossche was Head of 
the Department of International and European Law of Maastricht University.  
Dr Van den Bossche frequ ently acted as a consultant on issues of international economic law to 
numerous national administrations, international organizations, NGOs, and law firms. He also 
conducted capacity building and consultancy activities and/or lectured on international econ omic law 
in over 35 countries and held visiting professorships at over 10 universities. In 2010, 
Dr Van den Bossche was a Fernand Braudel Senior Research Fellow at the European University 
Institute, Florence, and in 2014 Senior Fellow at the Melbourne Law School, University of Melbourne.  
Dr Van den Bossche is the author of The Law and Policy of the World Trade Organization  (with 
Werner Zdouc from the 3rd edition onwards) and Essentials of WTO Law  (with Denise Prévost).  
Hong Zhao  (China) (2016 -2020)  
Madame Zhao received her bachelor's and master's degrees and a Ph.D. in Law from the Law School 
of Peking University in China. Currently she is a professor at several universities including the 
Universities of Peking, Fudan, and Intern ational Business and Economics. She is also a Council 
Member of the Shenzhen International Arbitration Court. Previously she provided legal services at 
the Treaty and Law Department of the Ministry of Foreign Trade and Economic Cooperation (which 
was later  transformed into the Ministry of Commerce) of China. Later she served as Assistant WT/AB/30  
 
- 170 - 
 
  Representative for Trade Negotiation at the Office of Representative for International Trade 
Negotiation of the Ministry of Commerce and as Deputy Director -General of the A nti-Monopoly 
Bureau of the Ministry of Commerce of China. Subsequently, she served as Minister Counsellor in 
charge of legal affairs at China's mission to the WTO, during which time she served as Chair of the 
WTO's Committee on Trade -Related Investment Measures (TRIMs). Madame Zhao then served as 
Commissioner for Trade Negotiations at the Chinese Ministry of Commerce's Department for 
WTO Affairs, where she participated in a number of important negotiations on international trade, 
including the  Trade Facilitation Agreement negotiations, negotiations on the expansion of the 
Information Technology Agreement, and the China -Australia Free Trade Agreement.  
Madame Zhao helped formulate many important Chinese legislative acts on economic and trade 
areas adopted since the 1990s and has experience in China's judiciary system, serving as Juror at 
the Economic Tribunal of the Second Intermediate Court of Beijing between 1999 and 2004. She 
has also taught and supervised law students on international economic  law, WTO law, and intellectual 
property rights (IPR) at various universities in China.  
* * * 
DIRECTOR OF THE APPELLATE  BODY SECRETARIAT  
Werner Zdouc  
Director of the WTO  Appellate  Body Secretariat since 2006, Werner Zdouc obtained a law degree 
from the Uni versity of Graz in Austria. He then went on to earn an LLM from Michigan Law School 
and a PhD from the University of St Gallen in Switzerland. Dr Zdouc joined the WTO  Legal Affairs 
Division in 1995, advised many dispute settlement panels, and conducted tec hnical cooperation 
missions in many developing countries. He became legal counsellor at the Appellate  Body Secretariat 
in 2001. In 2008 -2009 he chaired the WTO  Joint Advisory Committee to the Director -General. He 
has been a lecturer and Visiting Professor for international trade law at Vienna Economic University; 
the Universities of St. Gallen, Zurich, Berne, Barcelona, Seoul, and  Fudan ; and the Geneva Graduate 
Institute. From 1987 to  1989, he worked for governmental and non -governmental development aid 
organizations in Austria and Latin America. Dr  Zdouc has authored various publications on 
international economic law and is a member of the Trade Law Committee of the International Law 
Association.  
 WT/AB/ 30 
 
- 171 - 
 
 ANNEX 5 
FORMER APPELLATE BODY MEMBERS AN D CHAIRPERSONS  
I. FORMER APPELLATE  BODY MEMBERS  
Name  Nationality  Term(s) of office  
Said El -Naggar  Egypt  1995-2000 
Mitsuo Matsushita  Japan  1995-2000 
Christopher Beeby  New Zealand  1995-1999 
1999-2000 
Claus -Dieter Ehlermann  Germany  1995-1997 
1997-2001 
Florentino Feliciano  Philippines  1995-1997 
1997-2001 
Julio Lacarte -Muró Uruguay  1995-1997 
1997-2001 
James Bacchus  United  States  1995-1999 
1999-2003 
John Lockhart  Australia  2001-2005 
2005-2006 
Yasuhei Taniguchi  Japan  2000-2003 
2003-2007 
Merit E. Janow  United  States  2003-2007 
Arumugamangalam Venkatachalam 
Ganesan  India 2000-2004 
2004-2008 
Georges Michel Abi -Saab Egypt  2000-2004 
2004-2008 
Luiz Olavo Baptista  Brazil  2001-2005 
2005-2009 
Giorgio Sacerdoti  Italy 2001-2005 
2005-2009 
Jennifer Hillman  United  States  2007-2011 
Lilia Bautista  Philippines  2007-2011 
Shotaro Oshima  Japan  2008-2012 
David Unterhalter  South Africa  2006-2009 
2009-2013 
Yuejiao Zhang  China  2008-2012 
2012-2016 
Seung Wha Chang  Korea, Republic of  2012-2016 
Hyun Chong Kim  Korea, Republic of  2016-2017 
Ricardo Ramírez -Hernández  Mexico  2009-2013 
2013-2017 
Peter Van den Bossche  Belgium  2009-2013 
2013-2017 
Shree Baboo Chekitan Servansing  Mauritius  2014-2018 WT/AB/30  
 
- 172 - 
 
  Name  Nationality  Term(s) of office  
Ujal Singh Bhatia  India 2011-2015 
2015-2019 
Thomas Graham  United  States  2011-2015 
2015-2019 
II. FORMER CHAIRPERSONS OF THE APPELLATE  BODY  
Name  Nationality  Term(s) as Chairperson  
Julio Lacarte -Muró Uruguay  7 February  1996-
6 February 1997  
7 February  1997-
6 February 1998  
Christopher Beeby  New Zealand  7 February  1998-
6 February 1999  
Said El -Naggar  Egypt  7 February  1999-
6 February 2000  
Florentino Feliciano  Philippines  7 February  2000–
6 February 2001  
Claus -Dieter Ehlermann  Germany  7 February  2001-
10 December 2001  
James Bacchus  United  States  15 December  2001-
14 December 2002  
15 December  2002-
10 December 2003  
Georges Abi -Saab Egypt  13 December  2003-
12 December 2004  
Yasuhei Taniguchi  Japan  17 December  2004-
16 December 2005  
Arumugamangalam 
Venkatachalam Ganesan  India 17 December  2005-
16 December 2006  
Giorgio Sacerdoti  Italy 17 December  2006-
16 December 2007  
Luiz Olavo Baptista  Brazil  17 December  2007-
16 December 2008  
David Unterhalter  South Africa  18 December  2008-
11 December 2009  
12 December  2009-
16 December 2010  
Lilia Bautista  Philippines  17 December  2010-
14 June 2011  
Jennifer Hillman  United  States  15 June 2011-
10 December 2011  
Yuejiao Zhang  China  11 December  2011- 
31 May 2012  
1 June 2012- 
31 December 2012  
Ricardo Ramírez -Hernández  Mexico  1 January  2013-
31 December 2013  
1 January  2014-
31 December 2014  WT/AB/30  
 
- 173 - 
 
  Name  Nationality  Term(s) as Chairperson  
Peter Van den Bossche  Belgium  1 January  2015-
31 December 2015  
Thomas Graham  United  States  1 January  2016-
31 December 2016  
1 July 2019- 
30 November  2019 
Ujal Singh Bhatia  India 1 January  2017-
31 December 2017  
1 January  2018- 
31 December  2018 
Hong Zhao  China  1 January  2019- 
30 June 2019  
1 December  2019- 
30 Nov ember  2020* 
* Madame Zhao Hong has been elected to serve as Chair of the Appellate  Body as of 1 December  2019 until 
30 November  2020 pursuant to Rule 5.1 of the Working Procedures for Appellate Review (WT/DSB/78).  
 WT/AB/30  
 
- 174 - 
 
  ANNEX 6 
APPEALS FILED: FROM 1995 TO THE FIRST HALF OF 2020a 
TOTAL NUMBER OF APPEALS: FROM 1995 TO THE FIRST HALF  OF 2020  
 
a No appeals were filed and no Appellate  Body reports were circulated during 1995, the year the 
Appellate  Body was established. No appeals were filed during the first half of 2020.  
APPEALS FILED: FROM 1995 TO THE FIRST HALF  OF 2020  
Year Notices of  
Appeal filed  Notices of Appeal 
in original 
proceedings  Notices of Appeal 
in Article  21.5 
proceedings  
1995   0 0 0 
1996   4 4 0 
1997   6a 6 0 
1998   8 8 0 
1999   9b 9 0 
2000  13c 11 2 
2001   9d 5 4 
2002   7e 6 1 
2003   6f 5 1 
2004   5 5 0 
2005  13 11 2 
2006   5 3 2 
2007   4 2 2 
2008  11g 8 3 
2009 3 1 2 
WT/AB/30  
 
- 175 - 
 
  Year Notices of  
Appeal filed  Notices of Appeal 
in original 
proceedings  Notices of Appeal 
in Article  21.5 
proceedings  
2010 3 3 0 
2011 9 9 0 
2012 5 5 0 
2013 2 2 0 
2014 13 11 2 
2015 8h 6 2 
2016 8 7 1 
2017 8 6 2 
2018 12 10 2 
2019 8i 4 4 
2020 first half 0 0 0 
Total  178 147 32 
a This number includes two Notices of Appeal that were filed at the same time in related matters, counted 
separately: EC – Hormones (Canada)  and EC – Hormones (US).  A single Appellate  Body report was 
circulated in relation to those appeals.  
b This number excludes one Notice of Appeal that was withdrawn by the United  States, which subsequently 
filed another Notice of Appeal in relation to the same panel report: US – FSC. 
c This number includes two Notices of Appeal that were filed at the same time in related matters, counted 
separately: US – 1916 Act (EC)  and US – 1916 Act (Japan).  A single Appellate  Body report was circulated 
in relation to those appeals.  
d This numbe r excludes one Notice of Appeal that was withdrawn by the United  States, which subsequently 
filed another Notice of Appeal in relation to the same panel report: US – Line Pipe . 
e This number includes one Notice of Appeal that was subsequently withdrawn: India – Autos ; and excludes 
one Notice of Appeal that was withdrawn by the European  Communities , which subsequently filed another 
Notice of Appeal in relation to the same panel report: EC – Sardines . 
f This number excludes one Notice of Appeal that was withd rawn by the United  States, which subsequently 
filed another Notice of Appeal in relation to the same panel report: US – Softwood Lumber  IV. 
g This number includes two Notices of Appeal that were filed at the same time in related matters, counted 
separately : US – Shrimp (Thailand)  and US – Customs Bond Directive.   
h This number includes two Notices of Appeal that were filed at the same time in related matters, counted 
separately: China – HP-SSST (Japan)  and China – Measures Imposing Anti -Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP -SSST") from the European  Union .  
i This number includes the Panel  Report  in US – Carbon Steel (India) (Article  21.5 – India) , for which the 
United  States  notified of its decision to appeal, but did not fil e a notice of appeal or an appellant submission 
because no Division of the Appellate  Body could be established to hear this appeal (WT/DS436/22).  
 
 
 WT/AB/30  
 
- 176 - 
 
  ANNEX 7 
PERCENTAGE OF PANEL REPORTSa APPEALED BY YEAR OF CIRCULATIONb: 1996 –2019c 
 All panel reports  Panel reports other than  
Article  21.5 reports  Article  21.5 
panel  reports d 
Year  Panel 
reports 
circulated  Panel 
reports 
appealed  Percentage 
appealedf 
 Panel 
reports 
circulated  Panel 
reports 
appealed  Percentage 
appealedf Panel 
reports 
circulated  Panel 
reports 
appealed  Percentage 
appealedf 
% 
1996 9 6 67% 9 6 67% 0 0 – 
1997 7 6 86% 7 6 86% 0 0 – 
1998 16 11 69% 16 11 69% 0 0 – 
1999 18 11 61% 16 11 69% 2 0 0% 
2000 26 15 58% 22 13 59% 4 2 50% 
2001 14 11 79% 9 6 67% 5 5 100%  
2002 14 10 71% 12 8 67% 2 2 100%  
2003 16 13 81% 16 12 75% 0 1 100%  
2004 11 5 45% 11 5 45% 0 0 – 
2005 18 13 72% 13 11 85% 5 2 40% 
2006 9 5 56% 6 3 50% 3 2 67% 
2007 10 4 40% 7 2 29% 3 2 67% 
2008 13 13 100%  10 10 100%  3 3 100%  
2009 4 3 75% 3 1 33% 1 2 100%e 
2010 11 3 27% 11 3 27% 0 0 – 
2011 14 9 64% 14 9 64% 0 0 – 
2012 10 5 50% 10 5 50% 0 0 – 
2013 5 2 40% 4 2 50% 1 0 0% 
2014 15 13 87% 13 11 85% 2 2 100%  
2015 9 8 89% 6 6 100%  3 2 67% 
2016 12 8 67% 11 7 64% 1 1 100%  
2017 13 11 85% 11 9 82% 2 2 100%  
2018 18 12 67% 14 10 71% 4 2 50% 
2019 14 8g 57% 11 4 36% 3 4 100%e 
Total  306 203 66% 262 171 65%  44 32 73%  
a For ease of comparison, each DS number is counted as corresponding to a separate report, even where 
the panels issued a single report addressing multiple complaints. The only exceptions to this methodology 
are with respect to: (i)  the total number of panel reports circulated in 1999 , which count the panel reports 
in EC ‒ Banan as III (Article  21.5 – EC) and EC – Bananas III (Article  21.5 – Ecuador)  as two separate 
reports; and (ii)  the total number of panel reports circulated in 2008 , which count the panel reports in 
EC – Bananas III (Article  21.5 – Ecuador II)  and EC – Bananas III (Article  21.5 – US) as two separate 
reports.  
b The figures in this table correspond to the year in which the panel report was circulated, even in cases 
when the panel report was appealed in a different year.  
c No panel reports were circulated in 1995 and no appeals were filed during the first half of 2020. As such, 
these two periods have been excluded for the purpose of this statistics.  
d Under Article  21.5 of the DSU, a panel may be established to hear a "disagreement as to the existence or 
consistency with a covered agreement of measures taken to comply with the recommendations and 
rulings" of the DSB upon the adoption of a previous panel or Appellate  Body report.  
e The panel report in EC – Bed Linen (Article  21.5 – India) , which was circulated in 2002, was appealed in 
2003. The panel report in US – Zeroing (EC) (Article  21.5 – EC), which was circulated in 2008, was 
appealed in 2009. The panel report in Thailand – Cigarettes (Philippines) (Article  21.5 – Philippines) , which  
was circulated in 2018, was appealed in 2019.  
f Percentages are rounded  to the nearest whole number.  
g  This number includes the Panel  Report  in US – Carbon Steel (India) (Article  21.5 – India) , for which the 
United  States  notified of its decision to appeal, but did not file a notice of appeal or an appellant submission 
because no Division of the Appellate  Body could be established to hear this appeal (WT/DS436/22) .WT/AB/30  
 
- 177 - 
 
  PERCENTAGE OF PANEL REPORTS APPEALED BY YEAR OF CIRCULATION: 1996 –2019 
 
 
  
WT/AB/30  
 
- 178 - 
 
   
ANNEX 8 
WTO AGREEMENTS ADDRESSED IN APPELLATE BODY REPORTS CIRCULATED:  
FROM 1996 TO THE FIRST HALF OF 2020a 
The chart below shows the number of times specific WTO  agreements have been addressed in 
the 168 Appellate  Body report s circulated from 1996 to the first half of 2020.  
 
a No appeals were filed and no Appellate  Body reports were circulated in 1995, the year the Appellate  Body 
was established.  
 
133
105
40 40
16 16139 8 63 4 3 3DSU
GATT 1994
Anti-Dumping
SCM
Agriculture
WTO Agreement
TBT
SPS
Safeguards
GATS
TRIMs
TRIPS
ATC
Import Licensing 
  WT/AB/30  
 
- 179 - WTO  AGREEMENTS ADDRESSED IN APPELLATE  BODY REPORTS CIRCULATED: FROM 1996 TO THE FIRST HALF OF 2020  
Year of 
circulation  DSU WTO 
Agmt  GATT   
1994  Agri-
culture  SPS ATC TBT TRIMs  Anti-
Dumping  Import 
Licensing  SCM Safe-
guards  GATS  TRIPS  
1996  0 0 2 0 0 0 0 0 0 0 0 0 0 0 
1997  4 1 5 1 0 2 0 0 0 1 1 0 1 1 
1998  7 1 4 1 2 0 0 0 1 1 0 0 0 0 
1999  7 1 6 1 1 0 0 0 0 0 2 1 0 0 
2000  8 1 7 2 0 0 0 0 2 0 5 2 1 1 
2001  7 1 3 1 0 1 1 0 4 0 1 2 0 0 
2002  8 2 4 3 0 0 1 0 1 0 3 1 1 1 
2003  4 2 3 0 1 0 0 0 4 0 1 1 0 0 
2004  2 0 5 0 0 0 0 0 2 0 1 0 0 0 
2005  9 0 5 2 0 0 0 0 2 0 4 0 1 0 
2006  5 0 3 0 0 0 0 0 3 0 2 0 0 0 
2007  5 0 2 1 0 0 0 0 2 0 1 0 0 0 
2008  8 1 9 1 2 0 0 0 3 0 3 0 0 0 
2009  3 0 4 0 0 0 0 0 3 0 0 0 1 0 
2010  1 0 0 0 1 0 0 0 0 0 0 0 0 0 
2011  7 1 6 0 0 0 0 0 1 0 2 0 0 0 
2012  9 0 7 0 0 0 4 0 1 0 2 0 0 0 
2013  0 0 2 0 0 0 0 2 0 0 2 0 0 0 
2014  6 4 7 0 0 0 2 0 0 0 3 0 0 0 
2015  7 0 7 1 0 0 2 0 3 1 0 0 0 0 
2016  6 1 6 0 0 0 0 1 2 0 1 0 1 0 
2017  6 0 2 2 1 0 0 0 2 0 1 0 0 0 
2018  6 0 6 0 0 0 1 1 1 0 3 1 0 0 
2019  6 0 0 0 1 0 0 0 2 0 2 0 0 0 
2020  3 0 0 0 0 0 2 0 0 0 1 0 0 1 
Total  133 16 105 16 9 3 13 3 39 3 41 8 6 4 
 WT/AB/30  
 
- 180 - 
 
  ANNEX 9 
PARTICIPANTS AND THIRD PARTICIPANTS IN APPEALS:  
FROM 1996 TO THE FIRST HALF OF 2020a 
The chart below shows the ratio of developed country Members to developing country Members in 
terms of appearances made as appellant, other appellant, appellee, and third participant in appeals 
for which an Appellate  Body report was circulated from 1996 to  the first half of 2020.  
WTO  MEMBER PARTICIPATION IN APPEALS FROM 1996 TO THE FIRST HALF  OF 2020  
 
a No appeals were filed and no Appellate  Body reports were circulated in 1995, the year the 
Appellate  Body was established.  
  
9175206381
73
4795677
050100150200250300350400450500550600650700750
Appellants Other appellants Appellees Third participantsAppearances before the 
Appellate Body
Developed countries Other than developed countriesWT/AB/30  
 
- 181 - 
 
   
I. STATISTICAL SUMMARY  
WTO  Member  Appellant  Other 
appellant  Appellee  Third 
participant  Total  
Antigua and Barbuda  0 1 1 0 2 
Argentina  3 5 8 25 41 
Australia  2 2 7 56 67 
Bahrain,  
Kingdom of  0 0 0 1 1 
Barbados  0 0 0 1 1 
Belize  0 0 0 4 4 
Benin  0 0 0 1 1 
Bolivia,  
Plurinational State of  0 0 0 1 1 
Brazil  6 7 12 52 77 
Cameroon  0 0 0 3 3 
Canada  14 10 24 46 94 
Chad 0 0 0 2 2 
Chile 3 0 2 14 19 
China  16 6 12 68 102 
Colombia  1 0 0 25 26 
Costa Rica  1 0 0 3 4 
Côte d'Ivoire  0 0 0 4 4 
Cuba 0 0 0 5 5 
Dominica  0 0 0 4 4 
Dominican  Republic  2 0 1 4 7 
Ecuador  0 2 2 22 26 
Egypt  0 0 0 3 3 
El Salvador  0 0 0 6 6 
Eswatini  
(Swaziland)  0 0 0 1 1 
European  Union  25 24 56 85 190 
Fiji 0 0 0 1 1 
Ghana  0 0 0 2 2 
Grenada  0 0 0 1 1 
Guatemala  1 2 2 16 21 
Guyana  0 0 0 1 1 
Honduras  1 2 2 6 11 
Hong Kong, China  0 0 0 8 8 
Iceland  0 0 0 2 2 
India 9 2 8 56 75 
Indonesia  4 1 2 7 14 
Israel  0 0 0 2 2 
Jamaica  0 0 0 5 5 
Japan  8 8 18 82 116 
Kenya  0 0 0 1 1 
Korea, Republic of  4 6 9 51 70 WT/AB/30  
 
- 182 - 
 
  WTO  Member  Appellant  Other 
appellant  Appellee  Third 
participant  Total  
Kuwait,  
the State of  0 0 0 1 1 
Madagascar  0 0 0 1 1 
Malawi  0 0 0 2 2 
Malaysia  1 0 1 2 4 
Mauritius  0 0 0 2 2 
Mexico  6 6 9 39 60 
Morocco  1 0 0 0 1 
Namibia  0 0 0 1 1 
New Zealand  0 3 8 17 28 
Nicaragua  0 0 0 5 5 
Nigeria  0 0 0 2 2 
Norway  2 1 3 40 46 
Oman  0 0 0 5 5 
Pakistan  0 1 3 3 7 
Panama  1 0 2 4 7 
Paraguay  0 0 0 7 7 
Peru 1 1 1 8 11 
Philippines  3 0 3 3 9 
Poland  0 0 1 0 1 
Russian Federation  2 1 4 19 26 
Saint Kitts and Nevis  0 0 0 1 1 
Saint Lucia  0 0 0 4 4 
Saint Vincent and  
the Grenadines  0 0 0 3 3 
Saudi Arabia, 
Kingdom of  0 0 0 19 19 
Senegal  0 0 0 1 1 
Singapore  0 0 0 7 7 
South Africa  0 0 0 3 3 
Suriname  0 0 0 3 3 
Switzerland  0 1 1 1 3 
Chinese Taipei  0 1 1 47 49 
Tanzania  0 0 0 1 1 
Thailand  3 2 5 24 34 
Trinidad and Tobago  0 0 0 2 2 
Turkey  1 0 1 25 27 
Ukraine  2 0 1 5 8 
United  States  40 26 89 54 209 
Uruguay  0 0 0 1 1 
Venezuela,  
Bolivarian Republic of  0 0 1 6 7 
Viet Nam 1 1 1 11 14 
Zambia  0 0 0 1 1 
Zimbabwe  0 0 0 1 1 
Total  164 122 301 1058  1645  WT/AB/30  
 
- 183 - 
 
  II. DETAILS BY YEAR OF CIRCULATION  
1996  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – Gasoline  
WT/DS2/AB/R  United  States  --- Brazil  
Bolivarian Republic 
of Venezuela  European  
Communities  
Norway  
Japan – Alcoholic 
Beverages II  
WT/DS8/AB/R,  
WT/DS10/AB/R,  
WT/DS11/AB/R  Japan  United  States  Canada  
European  
Communities  
Japan  
United  States  --- 
1997  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – Underwear  
WT/DS24/AB/R  Costa Rica  --- United  States  India 
Brazil – Desiccated 
Coconut  
WT/DS22/AB/R  Philippines  Brazil  Brazil  
Philippines  European   
Communities  
United  States  
US – Wool Shirts and 
Blouses  
WT/DS33/AB/R and 
WT/DS33/AB/R/ Corr.1  India --- United  States  --- 
Canada – Periodicals  
WT/DS31/AB/R  Canada  United  States  Canada  
United  States  --- 
EC – Bananas III  
WT/DS27/AB/R  European  
Communities  Ecuador  
Guatemala  
Honduras  
Mexico  
United  States  Ecuador  
European   
Communities  
Guatemala  
Honduras  
Mexico  
United  States  Belize  
Cameroon  
Colombia  
Costa Rica  
Côte d'Ivoire  
Dominica  
Dominican   
Republic  
Ghana  
Grenada  
Jamaica  
Japan  
Nicaragua  
Saint Lucia  
Saint Vincent  and 
the Grenadines  
Senegal  
Suriname  
Bolivarian Republic 
of Venezuela  
India – Patents (US)  
WT/DS50/AB/R  India --- United  States  European  
Communities  
  WT/AB/30  
 
- 184 - 
 
  1998  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
EC – Hormones  
WT/DS26/AB/R,  
WT/DS48/AB/R  European   
Communities  Canada  
United  States  Canada  
European   
Communities  
United  States  Australia  
New Zealand  
Norway  
Argentina – Textiles and 
Apparel  
WT/DS56/AB/R and  
WT/DS56/AB/R/ Corr.1  Argentina  --- United  States  European   
Communities  
EC – Computer 
Equipment  
WT/DS62/AB/R,  
WT/DS67/AB/R,  
WT/DS68/AB/R  European   
Communities  --- United  States  Japan  
EC – Poultry  
WT/DS69/AB/R  Brazil  European   
Communities  Brazil  
European   
Communities  Thailand  
United  States  
US – Shrimp  
WT/DS58/AB/R  United  States  --- India 
Malaysia  
Pakistan  
Thailand  Australia  
Ecuador  
European   
Communities  
Hong Kong, China  
Mexico  
Nigeria  
Australia – Salmon  
WT/DS18/AB/R  Australia  Canada  Australia  
Canada  European   
Communities  
India 
Norway  
United  States  
Guatemala – Cement  I 
WT/DS60/AB/R  Guatemala  --- Mexico  United  States  
 
 
  WT/AB/30  
 
- 185 - 
 
  1999  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
Korea – Alcoholic 
Beverages  
WT/DS75/AB/R,  
WT/DS84/AB/R  Korea , Republic of  --- European   
Communities  
United  States  Mexico  
Japan – Agricultural 
Products II  
WT/DS76/AB/R  Japan  United  States  Japan  
United  States  Brazil  
European   
Communities  
Brazil – Aircraft  
WT/DS46/AB/R  Brazil  Canada  Brazil  
Canada  European   
Communities  
United  States  
Canada – Aircraft  
WT/DS70/AB/R  Canada  Brazil  Brazil  
Canada  European   
Communities  
United  States  
India – Quantitative 
Restrictions  
WT/DS90/AB/R  India --- United  States  --- 
Canada – Dairy  
WT/DS103/AB/R, 
WT/DS113/AB/R and 
WT/DS113/AB/R/ Corr.1  Canada  --- New Zealand  
United  States  --- 
Turkey – Textiles  
WT/DS34/AB/R  Turkey  --- India Hong Kong, China  
Japan  
Philippines  
Chile – Alcoholic 
Beverages  
WT/DS87/AB/R, 
WT/DS110/AB/R  Chile --- European   
Communities  Mexico  
United  States  
Argentina – Footwear  
(EC) 
WT/DS121/AB/R  Argentina  European   
Communities  Argentina  
European   
Communities  Indonesia  
United  States  
Korea – Dairy  
WT/DS98/AB/R  Korea, Republic of  European   
Communities  Korea, Republic of  
European   
Communities  United  States  
 
  WT/AB/30  
 
- 186 - 
 
  2000  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – FSC  
WT/DS108/AB/R  United  States  European   
Communities  European   
Communities  
United  States  Canada  
Japan  
US – Lead and 
Bismuth  II 
WT/DS138/AB/R  United  States  --- European   
Communities  Brazil  
Mexico  
Canada – Autos  
WT/DS139/AB/R,  
WT/DS142/AB/R  Canada  European   
Communities  
Japan  Canada  
European   
Communities  
Japan  Korea, Republic of  
United  States  
Brazil – Aircraft  
(Article  21.5 – Canada)  
WT/DS46/AB/RW  Brazil  --- Canada  European   
Communities  
United  States  
Canada – Aircraft  
(Article  21.5 – Brazil)  
WT/DS70/AB/RW  Brazil  --- Canada  European   
Communities  
United  States  
US – 1916 Act  
WT/DS136/AB/R, 
WT/DS162/AB/R  United  States  European   
Communities  
Japan  European   
Communities  
Japan  
United  States  European   
Communitiesa 
India 
Japanb 
Mexico  
Canada – Term of Patent 
Protection  
WT/DS170/AB/R  Canada  --- United  States  --- 
Korea – Various 
Measures on Beef  
WT/DS161/AB/R, 
WT/DS169/AB/R  Korea, Republic of  --- Australia  
United  States  Canada  
New Zealand  
US – Certain EC Products  
WT/DS165/AB/R  European   
Communities  United  States  European   
Communities  
United  States  Dominica  
Ecuador  
India 
Jamaica  
Japan  
Saint Lucia 
US – Wheat Gluten  
WT/DS166/AB/R  United  States  European   
Communities  European   
Communities  
United  States  Australia  
Canada  
New Zealand  
a In complaint brought by Japan.  
b In complaint brought by the European  Communities . WT/AB/30  
 
- 187 - 
 
  2001  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
EC – Bed Linen  
WT/DS141/AB/R  European   
Communities  India European   
Communities  
India Egypt  
Japan  
United  States  
EC – Asbestos  
WT/DS135/AB/R  Canada  European   
Communities  Canada  
European   
Communities  Brazil  
United  States  
Thailand – H-Beams  
WT/DS122/AB/R  Thailand  --- Poland  European   
Communities  
Japan  
United  States  
US – Lamb  
WT/DS177/AB/R, 
WT/DS178/AB/R  United  States  Australia  
New Zealand  Australia  
New Zealand  
United  States  European   
Communities  
US – Hot-Rolled Steel  
WT/DS184/AB/R  United  States  Japan  Japan  
United  States  Brazil  
Canada  
Chile 
European   
Communities  
Korea, Republic of  
US – Cotton Yarn  
WT/DS192/AB/R  United  States  --- Pakistan  European   
Communities  
India 
US – Shrimp  
(Article  21.5 – Malaysia)  
WT/DS58/AB/RW  Malaysia  --- United  States  Australia  
European   
Communities  
Hong Kong, China  
India 
Japan  
Mexico  
Thailand  
Mexico – Corn Syrup  
(Article  21.5 – US) 
WT/DS132/AB/RW  Mexico  --- United  States  European   
Communities  
Canada – Dairy 
(Article  21.5 – 
New Zealand and  US) 
WT/DS103/AB/RW, 
WT/DS113/AB/RW  Canada  --- New Zealand  
United  States  European   
Communities  
 WT/AB/30  
 
- 188 - 
 
  2002  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – Section  211 
Appropriations  Act  
WT/DS176/AB/R  European   
Communities  United  States  European   
Communities  
United  States  --- 
US – FSC (Article  21.5 – 
EC) 
WT/DS108/AB/RW  United  States  European   
Communities  European   
Communities  
United  States  Australia  
Canada  
India 
Japan  
US – Line Pipe  
WT/DS202/AB/R  United  States  Korea, Republic of  Korea, Republic of  
United  States  Australia  
Canada  
European   
Communities  
Japan  
Mexico  
India – Autosa 
WT/DS146/AB/R, 
WT/DS175/AB/R  India --- European   
Communities  
United  States  Korea, Republic of  
Chile – Price Band System  
WT/DS207/AB/R and 
WT/DS207/AB/R /Corr.1  Chile --- Argentina  Australia  
Brazil  
Colombia  
Ecuador  
European   
Communities  
Paraguay  
United  States  
Bolivarian Republic 
of Venezuela  
EC – Sardines  
WT/DS231/AB/R  European   
Communities  --- Peru Canada  
Chile 
Ecuador  
United  States  
Bolivarian Republic 
of Venezuela  
US – Carbon Steel  
WT/DS213/AB/R and 
WT/DS213/AB/R/ Corr.1  United  States  European   
Communities  European   
Communities  
United  States  Japan  
Norway  
US – Countervailing 
Measures on Certain 
EC Products  
WT/DS212/AB/R  United  States  --- European   
Communities  Brazil  
India 
Mexico  
Canada – Dairy 
(Article  21.5 – New 
Zealand and US  II) 
WT/DS103/AB/RW2, 
WT/DS113/AB/RW2  Canada  --- New Zealand  
United  States  Argentina  
Australia  
European   
Communities  
a India withdrew its appeal the day before the oral hearing was scheduled to proceed.  
 WT/AB/30  
 
- 189 - 
 
  2003  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – Offset Act  
(Byrd Amendment ) 
WT/DS217/AB/R, 
WT/DS234/AB/R  United  States  --- Australia  
Brazil  
Canada  
Chile 
European   
Communities  
India 
Indonesia  
Japan  
Korea , Republic of  
Mexico  
Thailand  Argentina  
Costa Rica  
Hong Kong, China  
Israel  
Norway  
EC – Bed Linen  
(Article  21.5 – India) 
WT/DS141/AB/RW  India --- European   
Communities  Japan  
Korea, Republic of  
United  States  
EC – Tube or Pipe Fittings  
WT/DS219/AB/R  Brazil  --- European   
Communities  Chile 
Japan  
Mexico  
United  States  
US – Steel Safeguards  
WT/DS248/AB/R, 
WT/DS249/AB/R,  
WT/DS251/AB/R, 
WT/DS252/AB/R,  
WT/DS253/AB/R, 
WT/DS254/AB/R,  
WT/DS258/AB/R, 
WT/DS259/AB/R  United  States  Brazil  
China  
European   
Communities  
Japan  
Korea, Republic of  
New Zealand  
Norway  
Switzerland  Brazil  
China  
European   
Communities  
Japan  
Korea, Re public of  
New Zealand  
Norway  
Switzerland  
United  States  Canada  
Cuba 
Mexico  
Chinese Taipei  
Thailand  
Turkey  
Bolivarian Republic 
of Venezuela  
Japan – Apples  
WT/DS245/AB/R  Japan  United  States  Japan  
United  States  Australia  
Brazil  
European   
Communities  
New Zealand  
Chinese Taipei  
US – Corrosion -Resistant 
Steel Sunset Review  
WT/DS244/AB/R  Japan  --- United  States  Brazil  
Chile 
European   
Communities  
India 
Korea, Republic of  
Norway  
 WT/AB/30  
 
- 190 - 
 
  2004  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – Softwood Lumber  IV 
WT/DS257/AB/R  United  States  Canada  Canada  
United  States  European   
Communities  
India 
Japan  
EC – Tariff Preferences  
WT/DS246/AB/R  European   
Communities  --- India Plurinational State 
of Bolivia  
Brazil  
Colombia  
Costa Rica  
Cuba 
Ecuador  
El Salvador  
Guatemala  
Honduras  
Mauritius  
Nicaragua  
Pakistan  
Panama  
Paraguay  
Peru 
United  States  
Bolivarian Republic 
of Venezuela  
US – Softwood Lumber  V 
WT/DS264/AB/R  United  States  Canada  Canada  
United  States  European   
Communities  
India 
Japan  
Canada – Wheat Exports 
and Grain Imports  
WT/DS276/AB/R  United  States  Canada  Canada  
United  States  Australia  
China  
European   
Communities  
Mexico  
Chinese Taipei  
US – Oil Country Tubular 
Goods Sunset Reviews  
WT/DS268/AB/R  United  States  Argentina  Argentina  
United  States  European   
Communities  
Japan  
Korea, Republic of  
Mexico  
Chinese Taipei  
 WT/AB/30  
 
- 191 - 
 
  2005  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – Upland Cotton  
WT/DS267/AB/R  United  States  Brazil  Brazil  
United  States  Argentina  
Australia  
Benin  
Canada  
Chad 
China  
European  
Communities  
India 
New Zealand  
Pakistan  
Paraguay  
Chinese Taipei  
Venezuela  
US – Gambling  
WT/DS285/AB/R and 
WT/DS285/AB/R/ Corr.1  United  States  Antigua and 
Barbuda  Antigua and 
Barbuda  
United  States  Canada  
European  
Communities  
Japan  
Mexico  
Chinese Taipei  
EC – Export Subsidies on 
Sugar  
WT/DS265/AB/R, 
WT/DS266/AB/R, 
WT/DS283/AB/R  European   
Communities  Australia  
Brazil  
Thailand  Australia  
Brazil  
European   
Communities  
Thailand  
 Barbados  
Belize  
Canada  
China  
Colombia  
Côte d'Ivoire  
Cuba 
Fiji 
Guyana  
India 
Jamaica  
Kenya  
Madagascar  
Malawi  
Mauritius  
New Zealand  
Paraguay  
Saint Kitts  
and Nevis  
Swaziland  
Tanzania  
Trinidad and  
Tobago  
United  States  
 WT/AB/30  
 
- 192 - 
 
  2005  
(CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
Dominican  Republic  – 
Import and Sale of 
Cigarettes  
WT/DS302/AB/R  Dominican   
Republic  Honduras  Dominican   
Republic  
Honduras  China  
El Salvador  
European   
Communities  
Guatemala  
United  States  
US – Countervailing Duty 
Investigation on DRAMS  
WT/DS296/AB/R  United  States  Korea, Republic of  Korea, Republic of  
United  States  China  
European   
Communities  
Japan  
Chinese Taipei  
EC – Chicken Cuts  
WT/DS269/AB/R,  
WT/DS286/AB/R and 
WT/DS286/AB/R/ Corr.1  European  
Communities  Brazil  
Thailand  Brazil  
European  
Communities  
Thailand  China  
United  States  
Mexico – Anti-Dumping 
Measures  on Rice  
WT/DS295/AB/R  Mexico  --- United  States  China  
European  
Communities  
Turkey  
US – Anti-Dumping 
Measures on Oil Country 
Tubular Goods  
WT/DS282/AB/R  Mexico  United  States  Mexico  
United  States  Argentina  
Canada  
China  
European   
Communities  
Japan  
Chinese Taipei  
US – Softwood Lumber  IV 
(Article  21.5 – Canada)  
WT/DS257/AB/RW  United  States   Canada  
 China  
European   
Communities  
 
  WT/AB/30  
 
- 193 - 
 
  2006  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – FSC 
(Article  21.5 – EC II) 
WT/DS108/AB/RW2  United  States  European   
Communities  European   
Communities  
United  States  Australia  
Brazil  
China  
Mexico ‒ Taxes on Soft 
Drinks  
WT/DS308/AB/R  Mexico  --- United  States  Canada  
China  
European   
Communities  
Guatemala  
Japan  
US – Softwood Lumber VI  
(Article  21.5 – Canada)  
WT/DS277/AB/RW and 
WT/DS277/AB/RW/ Corr.1  Canada  --- United  States  China  
European   
Communities  
US – Zeroing (EC)  
WT/DS294/AB/R and 
WT/DS294/AB/R/ Corr.1  European   
Communities  United  States  United  States  
European   
Communities  Argentina  
Brazil  
China  
Hong Kong, China  
India 
Japan  
Korea, Republic of  
Mexico  
Norway  
Chinese Taipei  
US – Softwood Lumber V  
(Article  21.5 – Canada)  
WT/DS264/AB/RW  Canada  --- United  States  China  
European   
Communities  
India 
Japan  
New Zealand  
Thailand  
EC – Selected Customs 
Matters  
WT/DS315/AB/R  United  States  European   
Communities  European   
Communities  
United  States  Argentina  
Australia  
Brazil  
China  
Hong Kong, China  
India 
Japan  
Korea, Republic of  
Chinese Taipei  
 
  WT/AB/30  
 
- 194 - 
 
  2007  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – Zeroing (Japan)  
WT/DS322/AB/R  Japan  United  States  United  States  
Japan  Argentina  
China  
European   
Communities  
Hong Kong, China  
India 
Korea, Republic of  
Mexico  
New Zealand  
Norway  
Thailand  
US – Oil Country Tubular 
Goods Sunset Reviews 
(Article  21.5 ‒ Argentina)  
WT/DS268/AB/RW  United  States  Argentina  Argentina  
United  States  China  
European   
Communities  
Japan  
Korea, Republic of  
Mexico  
Chile – Price Band System 
(Article  21.5 – Argentina)  
WT/DS207/AB/RW  Chile Argentina  Argentina  
Chile Australia  
Brazil  
Canada  
China  
Colombia  
European   
Communities  
Peru 
Thailand  
United  States  
Japan – DRAMs (Korea)  
WT/DS336/AB/R and 
WT/DS336/AB/R/ Corr.1  Japan  Korea, Republic of  Korea, Republic of  
Japan  European   
Communities  
United  States  
Brazil – Retreaded Tyres  
WT/DS332/AB/R  European   
Communities  --- Brazil  Argentina  
Australia  
China  
Cuba 
Guatemala  
Japan  
Korea, Republic of  
Mexico  
Paraguay  
Chinese Taipei  
Thailand  
United  States  WT/AB/30  
 
- 195 - 
 
  2008  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – Stainless Steel 
(Mexico)  
WT/DS344/AB/R  Mexico  --- United  States  Chile 
China  
European   
Communities  
Japan  
Thailand  
US – Upland Cotton 
(Article  21.5 – Brazil)  
WT/DS267/AB/RW  United  States  Brazil  Brazil  
United  States  Argentina  
Australia  
Canada  
Chad 
China  
European   
Communities  
India 
Japan  
New Zealand  
Thailand  
US – Shrimp (Thailand)  
WT/DS343/AB/R  Thailand  United  States  United  States  
Thailand  Brazil  
Chile 
China  
European   
Communities  
India 
Japan  
Korea, Republic of  
Mexico  
Viet Nam 
US – Customs Bond 
Directive  
WT/DS345/AB/R  India United  States  United  States  
India Brazil  
China  
European   
Communities  
Japan  
Thailand  
US – Continued 
Suspension  
WT/DS320/AB/R  European  
Communities  United  States  United  States  
European   
Communities  Australia  
Brazil  
China  
India 
Mexico  
New Zealand  
Norway  
Chinese Taipei  
Canada – Continued 
Suspension  
WT/DS321/AB/R  European   
Communities  Canada  Canada  
European   
Communities  Australia  
Brazil  
China  
India 
Mexico  
New Zealand  
Norway  
Chinese Taipei  WT/AB/30  
 
- 196 - 
 
  2008  
(CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
India – Additional Import 
Duties  
WT/DS360/AB/R  United  States  India India 
United  States  Australia  
Chile 
European   
Communities  
Japan  
Viet Nam 
EC – Bananas III 
(Article  21.5 ‒Ecuador  II) 
WT/DS27/AB/RW2/ECU 
and  
WT/DS27/AB/RW2/  
ECU/Corr.1  European   
Communities  Ecuador  Ecuador  
European   
Communities  Belize  
Brazil  
Cameroon  
Colombia  
Côte d'Ivoire  
Dominica  
Dominican   
Republic  
Ghana  
Jamaica  
Japan  
Nicaragua  
Panama  
Saint Lucia 
Saint Vincent and  
the Grenadines  
Suriname  
United  States  
EC – Bananas III 
(Article  21.5 ‒ US) 
WT/DS27/AB/RW/USA 
and  
WT/DS27/AB/RW/  
USA/Corr.1  European   
Communities  --- United  States  Belize  
Brazil  
Cameroon  
Colombia  
Côte d'Ivoire  
Dominica  
Dominican   
Republic  
Ecuador  
Jamaica  
Japan  
Mexico  
Nicaragua  
Panama  
Saint Lucia 
Saint Vincent and 
the Grenadines  
Suriname  WT/AB/30  
 
- 197 - 
 
  2008  
(CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
China – Auto Parts (EC)  
WT/DS339/AB/R  China  --- European   
Communities  Argentina  
Australia  
Brazil  
Japan  
Mexico  
Chinese Taipei  
Thailand  
China – Auto Parts (US)  
WT/DS340/AB/R  China  --- United  States  Argentina  
Australia  
Brazil  
Japan  
Mexico  
Chinese Taipei  
Thailand  
China – Auto Parts 
(Canada)  
WT/DS342/AB/R  China  --- Canada  Argentina  
Australia  
Brazil  
Japan  
Mexico  
Chinese Taipei  
Thailand  
 
  WT/AB/30  
 
- 198 - 
 
  2009  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – Continued Zeroing  
WT/DS350/AB/R  European   
Communities  United  States  European   
Communities  
United  States  Brazil  
China  
Egypt  
India 
Japan  
Korea , Republic of  
Mexico  
Norway  
Chinese Taipei  
Thailand  
US – Zeroing (EC) 
(Article  21.5 ‒ EC) 
WT/DS294/AB/RW and 
WT/DS294/AB/RW/ Corr.1  European   
Communities  United  States  European   
Communities  
United  States  India 
Japan  
Korea, Republic of  
Mexico  
Norway  
Chinese Taipei  
Thailand  
US – Zeroing (Japan) 
(Article  21.5 – Japan)  
WT/DS322/AB/RW  United  States  --- Japan  China  
European   
Communities  
Hong Kong, China  
Korea, Republic of  
Mexico  
Norway  
Chinese Taipei  
Thailand  
China – Publications and 
Audiovisual Products  
WT/DS363/AB/R  China  United  States  China  
United  States  Australia  
European   
Communities  
Japan  
Korea, Republic of  
Chinese Taipei  
 
  WT/AB/30  
 
- 199 - 
 
  2010  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
Australia – Apples  
WT/DS367/AB/R  Australia  New Zealand  New Zealand  
Australia  Chile 
European  Union  
Japan  
Pakistan  
Chinese Taipei  
United  States  
 
  WT/AB/30  
 
- 200 - 
 
  2011  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – Anti-Dumping and 
Countervailing Duties 
(China)  
WT/DS379/AB/R  China  --- United  States  Argentina  
Australia  
Bahrain ,  
Kingdom of  
Brazil  
Canada  
European  Union  
India 
Japan  
Kuwait,  
the State of  
Mexico  
Norway  
Saudi Arabia, 
Kingdom of   
Chinese Taipei  
Turkey  
EC and certain member 
States – Large Civil 
Aircraft  
WT/DS316/AB/R  European  Union  United  States  United  States  
European  Union  Australia  
Brazil  
Canada  
China  
Japan  
Korea, Republic of  
Thailand – Cigarettes 
(Philippines)  
WT/DS371/AB/R  Thailand  --- Philippines  Australia  
China  
European  Union  
India 
Chinese Taipei  
United  States  
EC – Fasteners (China)  
WT/DS397/AB/R  European  Union  China  China  
European  Union  Brazil  
Canada  
Chile 
Colombia  
India 
Japan  
Norway  
Chinese Taipei  
Thailand  
Turkey  
United  States  
US – Tyres (China)  
WT/DS399/AB/R  China  --- United  States  European  Union  
Japan  
Chinese Taipei  
Turkey  
Viet Nam 
 WT/AB/30  
 
- 201 - 
 
  2011  
(CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
Philippines – Distilled 
Spirits (European  Union)  
WT/DS396/AB/R  Philippines  European  Union  European  Union  
Philippines  Australia  
China  
Colombia  
India 
Mexico  
Chinese Taipei  
Thailand  
Philippines – Distilled 
Spirits (United  States)  
WT/DS403/AB/R  Philippines  --- United  States  Australia  
China  
Colombia  
India 
Mexico  
Chinese Taipei  
Thailand  
 
  WT/AB/30  
 
- 202 - 
 
  2012  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
China – Raw Materials 
(United  States)  
WT/DS394/AB/R  China  United  States  China  
United  States  Argentina  
Brazil  
Canada  
Chile 
Colombia  
Ecuador  
India 
Japan  
Korea, Republic of  
Norway  
Saudi Arabia,  
Kingdom of  
Chinese Taipei  
Turkey  
China – Raw Materials 
(European  Union)  
WT/DS395/AB/R  China  European  Union  China  
European  Union  Argentina  
Brazil  
Canada  
Chile 
Colombia  
Ecuador  
India 
Japan  
Korea, Republic of  
Norway  
Saudi Arabia, 
Kingdom of  
Chinese Taipei  
Turkey  
China – Raw Materials  
(Mexico)  
WT/DS398/AB/R  China  Mexico  China  
Mexico  Argentina  
Brazil  
Canada  
Chile 
Colombia  
Ecuador  
India 
Japan  
Korea, Republic of  
Norway  
Saudi Arabia, 
Kingdom of  
Chinese Taipei  
Turkey  
 
 WT/AB/30  
 
- 203 - 
 
  2012  
(CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – Large Civil Aircraft 
(2nd complaint)  
WT/DS353/AB/R  European  Union  United  States  United  States  
European  Union  Australia  
Brazil  
Canada  
China  
Japan  
Korea, Republic of  
US – Clove Cigarettes  
WT/DS406/AB/R  United  States  --- Indonesia  Brazil  
Colombia  
Dominican   
Republic  
European  Union  
Guatemala  
Mexico  
Norway  
Turkey  
US – Tuna II (Mexico)  
WT/DS381/AB/R  United  States  Mexico  Mexico  
United  States  Argentina  
Australia  
Brazil  
Canada  
China  
Ecuador  
European  Union  
Guatemala  
Japan  
Korea, Republic of  
New Zealand  
Chinese Taipei  
Thailand  
Turkey  
Bolivarian Republic 
of Venezuela  
US – COOL (Canada)  
WT/DS384/AB/R  United  States  Canada  Canada  
United  States  
 Argentina  
Australia  
Brazil  
China  
Colombia  
European  Union  
Guatemala  
India 
Japan  
Korea, Republic of  
New Zealand  
Peru 
Chinese Taipei  
 WT/AB/30  
 
- 204 - 
 
  2012  
(CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – COOL (Mexico)  
WT/DS386/AB/R  United  States  Mexico  Mexico  
United  States  Argentina  
Australia  
Brazil  
China  
Colombia  
European  Union  
Guatemala  
India 
Japan  
Korea, Republic of  
New Zealand  
Peru 
Chinese Taipei  
China – GOES  
WT/DS414/AB/R  China  --- United  States  Argentina  
European  Union  
Honduras  
India 
Japan  
Korea, Republic of  
Saudi Arabia, 
Kingdom of  
Viet Nam 
 
  WT/AB/30  
 
- 205 - 
 
  2013  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
Canada – Renewable 
Energy  
WT/DS412/AB/R  Canada  Japan  Japan  
Canada  Australia  
Brazil  
China  
El Salvador  
European  Union  
Honduras  
India 
Korea, Republic of  
Mexico  
Norway  
Saudi Arabia, 
Kingdom of  
Chinese Taipei  
United  States  
Canada – Feed-in Tariff 
Program  
WT/DS426/AB/R  Canada  European  Union  European  Union  
Canada  Australia  
Brazil  
China  
El Salvador  
India 
Japan  
Korea, Republic of  
Mexico  
Norway  
Saudi Arabia, 
Kingdom of  
Chinese Taipei  
Turkey  
United  States  
 
  WT/AB/30  
 
- 206 - 
 
  2014  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
EC – Seal Products 
(Canada)  
WT/DS400/AB/R  Canada  
 European  Union  Canada  
European  Union  Argentina  
China  
Colombia  
Ecuador  
Iceland  
Japan  
Mexico  
Russian Federation  
United  States  
EC – Seal Products 
(Norway)  
WT/DS401/AB/R  Norway  European  Union  Norway  
European  Union  Argentina  
China  
Colombia  
Ecuador  
Iceland  
Japan  
Mexico  
Namibia  
Russian Federation  
United  States  
US – Countervailing and 
Anti-Dumping Measures 
(China)  
WT/DS449/AB/R and 
WT/DS449/AB/R /Corr.1  China  United  States  United  States  
China  Australia  
Canada  
European  Union  
India 
Japan  
Russian Federation  
Turkey  
Viet Nam 
China – Rare Earths (US)  
WT/DS431/AB/R  United  States  China  United  States  
China  Argentina  
Australia  
Brazil  
Canada  
Chinese Taipei  
Colombia  
European  Union  
India 
Indonesia  
Korea, Republic of  
Japan  
Norway  
Oman  
Peru 
Russian Federation  
Saudi Arabia, 
Kingdom of  
Turkey  
Viet Nam 
 WT/AB/30  
 
- 207 - 
 
  2014  
(CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
China – Rare Earths (EU)  
WT/DS432/AB/R  China  --- European  Union  Argentina  
Australia  
Brazil  
Canada  
Chinese Taipei  
Colombia  
India 
Indonesia  
Japan  
Korea, Republic of  
Norway  
Oman  
Peru 
Russia n Federation  
Saudi Arabia, 
Kingdom of   
Turkey  
United  States  
Viet Nam 
China – Rare Earths 
(Japan)  
WT/DS433/AB/R  China  --- Japan  Argentina  
Australia  
Brazil  
Canada  
Chinese Taipei  
Colombia  
India 
Indonesia  
European  Union  
Korea, Republic of  
Norway  
Oman  
Peru 
Russian Federation  
Saudi Arabia, 
Kingdom of  
Turkey  
United  States  
Viet Nam 
US – Carbon Steel (India)  
WT/DS436/AB/R  India United  States  India  
United  States  Australia  
Canada  
China  
European  Union  
Saudi Arabia, 
Kingdom of  
Turkey  WT/AB/30  
 
- 208 - 
 
  2014  
(CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – Countervailing 
Measures (China)  
WT/DS437/AB/R  China  United  States  United  States  
China  
 Australia  
Brazil  
Canada  
European  Union  
India 
Japan  
Korea, Republic of  
Norway  
Russia n Federation  
Saudi Arabia, 
Kingdom of  
Turkey  
Viet Nam 
 
  WT/AB/30  
 
- 209 - 
 
  2015  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
Argentina – Import 
Measures (EU)  
WT/DS438/AB/R  Argentina  European  Union  Argentina  
European  Union  Australia  
Canada  
China  
Ecuador  
Guatemala  
India 
Israel  
Japan  
Korea, Republic of  
Norway  
Saudi Arabia, 
Kingdom of   
Chinese Taipei  
Thailand  
Turkey  
Switzerland  
United  States  
Argentina – Import 
Measures (US)  
WT/DS444/AB/R  Argentina  --- United  States  Australia  
Canada  
China  
Ecuador  
European  Union  
Guatemala  
India 
Israel  
Japan  
Korea, Republic of  
Norway  
Saudi Arabia, 
Kingdom of  
Chinese Taipei  
Thailand  
Turkey  
Switzerland  
Argentina – Import 
Measures (Japan)  
WT/DS445/AB/R  Argentina  Japan  Argentina  
Japan  Australia  
Canada  
China  
Ecuador  
European  Union  
Guatemala  
India 
Israel  
Korea, Republic of  
Norway  
Saudi Arabia, 
Kingdom of  
Chinese Taipei  
Thailand  
Turkey  
Switzerland  
United  States  
  WT/AB/30  
 
- 210 - 
 
  2015  
(CONT'D)  
Case Appellant  Other appellant(s)  Appellee(s)  Third participant(s)  
US – COOL (Article  21.5 – 
Canada)  
WT/DS384/AB/RW  United  States  Canada  Canada  
United  States  Australia  
Brazil  
China  
Colombia  
European  Union  
Guatemala  
India 
Japan  
Korea, Republic of  
Mexico  
New Zealand  
US – COOL (Article  21.5 – 
Mexico)  
WT/DS386/AB/RW  United  States  Mexico  Mexico  
United  States  Australia  
Brazil  
Canada  
China  
Colombia  
European  Union  
Guatemala  
India 
Japan  
Korea, Republic of  
New Zealand  
US – Shrimp II (Viet  Nam)  
WT/DS429/AB/R  Viet Nam --- United  States  China  
Ecuador  
European  Union  
Japan  
Norway  
Thailand  
India – Agricultural 
Products  
WT/DS430/AB/R  India --- United  States  Argentina  
Australia  
Brazil  
China  
Colombia  
Ecuador  
European  Union  
Guatemala  
Japan  
Peru – Agricultural 
Products  
WT/DS457/AB/R  Peru Guatemala  Guatemala  
Peru Argentina  
Brazil  
China  
Colombia  
Ecuador  
El Salvador  
European  Union  
Honduras  
India 
Korea, Republic of  
United  States  WT/AB/30  
 
- 211 - 
 
  2015  
(CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
China – HP-SSST (Japan)  
WT/DS454/AB/R  Japan  China  China  
Japan  European  Union  
India 
Korea, Republic of  
Russian Federation  
Saudi Arabia, 
Kingdom of  
Turkey  
United  States  
China – HP-SSST (EU)  
WT/DS460/AB/R  China  European  Union  China  
European  Union  India 
Japan  
Korea, Republic of  
Russia n Federation  
Saudi Arabia, 
Kingdom of  
Turkey  
United  States  
US – Tuna II (Mexico)  
(Article  21.5 – Mexico)  
WT/DS381/AB/RW  United  States  Mexico  Mexico  
United  States  Australia  
Canada  
China  
European  Union  
Guatemala  
Japan  
Korea, Republic of  
New Zealand  
Norway  
Thailand  
 
  WT/AB/30  
 
- 212 - 
 
  2016  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
EC – Fasteners (China) – 
(Article  21.5 – China)  
WT/DS397/AB/RW  European  Union  China  China  
European  Union  Japan  
United  States  
Argentina – Financial 
Services  
WT/DS453/AB/R  Panama  Argentina  Argentina  
Panama  Australia  
Brazil  
China  
Ecuador  
European  Union  
Guatemala  
Honduras  
India 
Oman  
Saudi Arabia , 
Kingdom of  
Singapore  
United  States  
Colombia  – Textiles  
WT/DS461 /AB/R  Colombia  --- Panama  China  
Ecuador  
El Salvador  
European  Union  
Guatemala  
Honduras  
Philippines  
United  States  
US – Washing Machines  
WT/DS464/AB/R  United  States  Korea, Republic of  Korea, Republic of  
United  States  Brazil  
Canada  
China  
European  Union  
India 
Japan  
Norway  
Saudi Arabia, 
Kingdom of  
Thailand  
Turkey  
Viet Nam 
  WT/AB/30  
 
- 213 - 
 
  2016  
(CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
India – Solar Cells  
WT/DS456/AB/R  India --- United  States  Brazil  
Canada  
China  
Ecuador  
European  Union  
Japan  
Korea, Republic of  
Malaysia  
Norway  
Russian 
Federation  
Saudi Arabia, 
Kingdom of  
Chinese Taipei  
Turkey  
EU – Biodiesel (Argentina)  
WT/DS473/AB/R  European  Union  Argentina  Argentina  
European  Union  Australia  
China  
Colombia  
Indonesia  
Mexico  
Norway  
Russian 
Federation  
Saudi Arabia, 
Kingdom of  
Turkey  
United  States  
 
  WT/AB/30  
 
- 214 - 
 
  2017  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
Russia – Pigs (EU)  
WT/DS475/AB/R  Russian Federation  European  Union  European  Union  
Russian Federation  Australia  
Brazil  
China  
India 
Japan  
Korea, Republic of  
Norway  
Chinese Taipei  
South Africa  
United  States  
US – Anti-Dumping 
Methodologies (China)  
WT/DS471/AB/R  China  --- United  States  Brazil  
Canada  
European  Union  
India 
Japan  
Korea, Republic of  
Norway  
Russia n Federation  
Saudi Arabia, 
Kingdom of  
Chinese Taipei  
Turkey  
Ukraine  
Viet Nam 
US – Tax Incentives  
WT/DS487/AB/R  United  States  European  Union  European  Union  
United  States  Australia  
Brazil  
Canada  
China  
Japan  
Korea, Republic of  
Russian Federation  
EU – Fatty Alcohols 
(Indonesia)  
WT/DS442/AB/R  Indonesia  European  Union  European  Union  
Indonesia  Korea, Republic of  
United  States  
Indonesia – Import 
Licensing Regimes  
WT/DS477/AB/R  Indonesia  --- New Zealand  
United  States  Argentina  
Australia  
Brazil  
Canada  
China  
European  Union  
Japan  
Korea, Republic of  
Norway  
Paraguay  
Singapore  
Chinese Taipei  
 WT/AB/30  
 
- 215 - 
 
  2017  
(CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
Indonesia – Import 
Licensing Regimes  
WT/DS478/AB/R  Indonesia  --- New Zealand  
United  States  Argentina  
Australia  
Brazil  
Canada  
China  
European  Union  
Japan  
Korea, Republic of  
Norway  
Paraguay  
Singapore  
Chinese Taipei  
 
  WT/AB/30  
 
- 216 - 
 
  2018  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
Russia – Commercial 
Vehicles  
WT/DS479/AB/R  Russian Federation  European  Union  European  Union  
Russian Federation  Brazil  
China  
Japan  
Korea, Republic of  
Turkey  
Ukraine  
United  States  
EC and certain member 
States  – Large Civil Aircraft  
(Article  21.5 – US) 
WT/DS316/AB/R/RW  European  Union  United  States  United  States  
European  Union  Australia  
Brazil  
Canada  
China  
Japan  
Korea, Republic of  
EU – PET (Pakistan)  
WT/DS486/AB/R  European  Union  Pakistan  Pakistan  
European  Union  China  
United  States  
Indonesia – Iron or Steel 
Product s 
WT/DS490/AB/R   
WT/DS496/AB/R  Indonesia  Chinese  Taipei  
Viet Nam Chinese  Taipei  
Viet Nam 
Indonesia  Australia  
Chile 
China  
European  Union  
India 
Japan  
Korea, Republic of  
Russia  
Ukraine  
United  States  
Brazil – Taxation  
WT/DS472/AB/R  
WT/DS497/AB/R  Brazil  European  Uniona 
Japanb European  Unionc 
Japand 
Brazil  Argentina  
Australia  
Canada  
China  
Colombia  
European  Unione 
India 
Japanf 
Korea, Republic of  
Russian Federation  
Singapore  
South  Africa  
Chinese  Taipei  
Turkey  
Ukraine  
United  States  WT/AB/30  
 
- 217 - 
 
  2018  
(CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – Tuna II (Mexico) 
(Article  21.5 – US) /  
US – Tuna II (Mexico) 
(Article  21.5 – Mexico II)  
WT/DS381/AB/RW/USA  
WT/DS381/AB/RW2  Mexico  --- United  States  Australia  
Brazil  
Canada  
China  
Ecuador  
European  Union  
Guatemala  
India 
Japan  
Korea, Republic of  
New Zealand  
Norway  
a In DS472 only.  
b In DS497 only.  
c In DS472 only.  
d In DS497 only.  
e In DS497 only.  
f In DS472 only.  
 
 
  WT/AB/30  
 
- 218 - 
 
  2019  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – Large Civil Aircraft 
(2nd complaint) 
(Article  21.5 – EU) 
WT/DS353/AB/RW  European  Union  United  States  European  Union  
United  States  Australia  
Brazil  
Canada  
China  
Japan  
Korea, Republic of  
Russian Federation  
Korea – Radionuclides  
WT/DS495/AB/R  Korea, Republic of  Japan  Korea, Republic of  
Japan  Brazil  
Canada  
China  
European  Union  
Guatemala  
India 
New Zealand  
Norway  
Russian Federation  
Chinese Taipei  
United  States  
US – Countervailing 
Measures (China) 
(Article  21.5 – China)  
WT/DS437/AB/RW  United  States  China  United  States  
China  Australia  
Canada  
European  Union  
Japan  
Korea, Republic of  
India 
Russian Federation  
Viet Nam 
Korea  – Pneumatic Valves  
WT/DS504/AB/R  Japan  Korea, Republic of  Japan  
Korea, Republic of  Brazil  
Canada  
China  
Ecuador  
European  Union  
Norway  
Singapore  
Turkey  
United  States  
Viet Nam 
Ukraine – Ammonium 
Nitrate  
WT/DS493/AB/R  Ukraine  --- Russian Federation  Argentina  
Australia  
Brazil  
Canada  
China  
Colombia  
European  Union  
Japan  
Mexico  
Norway  
United  States  WT/AB/30  
 
- 219 - 
 
  2019  
(CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
Morocco – Hot-Rolled 
Steel 
WT/DS513/AB/R  Morocco  --- Turkey  China  
Egypt  
European  Union  
India 
Japan  
Korea, Republic of  
Russia n Federation  
Singapore  
United  States  
 
 
  WT/AB/30  
 
- 220 - 
 
  2020  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
Russia – Railway Equipment  
WT/DS499/AB/R  Ukraine  Russian Federation  Russian Federation  
Ukraine  Canada  
China  
European  Union  
India 
Indonesia  
Japan  
Singapore  
United  States  
US – Supercalendered 
Paper  
WT/DS505/AB/R  United  States  --- Canada  Brazil  
China  
European  Union  
India 
Japan  
Korea, Republic of  
Mexico  
Turkey  
 
  WT/AB/30  
 
- 221 - 
 
  2020  
(CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
Australia – Tobacco Plain 
Packaging (Honduras) /  
Australia – Tobacco Plain 
Packaging 
(Dominican  Republic)  
WT/DS435/AB/R  
WT/DS441/AB/R  Honduras  
Dominican   
Republic  --- Australia  Argentina  
Brazil  
Canada  
Chile 
China  
Cuba  
Dominican   
Republica 
Ecuador  
European  Union  
Guatemala  
Hondurasb 
India 
Indonesia  
Japan  
Korea, Republic of  
Malawi  
Malaysia  
Mexico  
New Zealand  
Nicaragua  
Nigeria  
Norway  
Oman  
Panama  
Peru 
Philippines  
Russian Federation  
Saudi Arabia, 
Kingdom of  
Singapore  
South Africa  
Chinese Taipei  
Thailand  
Trinidad and 
Tobago  
Turkey  
Ukraine  
United  States  
Uruguay  
Zambia  
Zimbabwe  
a In DS435 only.  
b In DS441 only.  
 
 
__________