RESTRICTED  
  
WT/DSB/M/441  
 
14 May 2020  
(20-3617) Page: 1/35 
Dispute Settlement Body  
28 February and 5 March 2020    
 
MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 28 FEBRUARY  AND 5 MARCH 2020  
Chairman: H.E. Dr David Walker (New Zealand)  
 
Prior to the adoption of the Agenda1 
 
 
Table of contents  
 
1   SURVEILLANCE OF IMPLEMENTATION OF RE COMMENDATIONS ADOPTE D  
BY THE DSB  ................................ ................................ ................................ ......................  2 
A. United  States – Anti-dumping measures on certain hot rolled steel products from Japan:  
Status report by the United States  ................................ ................................ ........................  5 
B. United  States – Section 110(5) of the US Copyright Act: Status report by the United States  ..... 5 
C. European  Communities – Measures affecting the approval and marketing of biotech  
products: Status report by the European Union ................................ ................................ ....... 6 
D. United  States – Anti-dumping and countervailing measures on large residential  
washers from Korea: Status report by the United States  ................................ ..........................  7 
E. United  States – Certain methodologies and their application to anti -dumping proceedings 
involving China: Status report by the United States  ................................ ................................ . 8 
F. Indonesia – Importation of horticultural products, animals and animal products:  
Status report by Indonesia  ................................ ................................ ................................ ... 8 
G. China – Domestic support for agricultural producers: Status report by China  ..........................  9 
H. China – Tariff rate quotas for certain agricultural products: Status report by China  ................ 10 
2   UNITED STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  OF 2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE DSB  ........................  11 
A. Statement by the European Union  ................................ ................................ .................... 11 
3   EUROPEAN COMMUNI TIES AND CERTAIN MEM BER STATES – MEASURE S AFFECTING 
TRADE IN LARGE CIVIL  AIRCRAFT: IMPLEMENT ATION OF THE RECOMME NDATIONS 
ADOPTED BY THE DSB  ................................ ................................ ................................ .... 12 
A. Statement by the United States  ................................ ................................ ....................... 12 
4   INDIA – TARIFF T REATMENT ON CERTAIN GOODS IN THE INFORMATION AND 
COMMUNICATIONS TECHN OLOGY SECTOR  ................................ ................................ ..... 13 
A. Request for the establishment of a panel by the European Union ................................ .......... 13 
 
1 See pages 2, 3 and 4.  WT/DSB/M/441  
 
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  5   COLOMBIA – ANTI -DUMPING DUTIES ON FR OZEN FRIES FROM BELG IUM,  
GERMANY AND THE NETH ERLANDS  ................................ ................................ ................  15 
A. Request for the establishment of a panel by the European Union ................................ .......... 15 
6   RUSSIA – MEASURE S AFFECTING THE IMPO RTATION OF RAILWAY E QUIPMENT  
AND PARTS THEREOF  ................................ ................................ ................................ ..... 15 
A. Report of the Appellate Body and Report of the Panel  ................................ ......................... 15 
7   UNITED STATES – COUNTERVAILING MEASU RES ON SUPERCALENDER ED PAPER  
FROM CANADA  ................................ ................................ ................................ ...............  18 
A. Report of the Appellate Body and Report of the Panel  ................................ ......................... 18 
8   APPELLATE BODY A PPOINTMENTS: PROPOSA L BY AFGHANISTAN; AN GOLA; 
ARGENTINA; AUSTRALIA ; BENIN; PLURINATION AL STATE OF BOLIVIA;  BOTSWANA; 
BRAZIL; BURKINA FASO ; BURUNDI; CABO VERD E; CAMEROON; CANADA;  
CENTRAL  AFRICAN REPUBLIC; CH AD; CHILE; CHINA; CO LOMBIA; CONGO;  
COSTA RICA; CÔTE  D'IVOIRE; CUBA; DEMO CRATIC REPUBLIC OF C ONGO; DJIBOUTI; 
DOMINICAN  REPUBLIC; ECUADOR; E GYPT; EL SALVADOR; E SWATINI;  
THE EUROPEAN UNION; GABON; THE  GAMBIA; GHANA; GUATE MALA; GUINEA;  
GUINEA -BISSAU; HONDU RAS; HONG  KONG,  CHINA; ICELAND; INDI A; INDONESIA; 
ISRAEL; KAZAKHSTAN; KENYA; REPUBLIC OF K OREA; LESOTHO; LIECH TENSTEIN; 
MADAGASCAR; MALAWI; MALAYSIA; MALDIVES; MALI; MAURITANIA; MAUR ITIUS; 
MEXICO; REPUBLIC OF MOLDOVA; MOROCCO; MO ZAMBIQUE; NAMIBIA; N EPAL; 
NEW  ZEALAND; NICARAGUA; NIGER; NIGERIA; NORT H MACEDONIA; NORWAY;  
PAKISTAN; PANAMA; PA RAGUAY; PERU; QATAR;  RUSSIAN FEDERATION;  RWANDA; 
SENEGAL; SEYCHELLES;  SIERRA L EONE; SINGAPORE; SOU TH AFRICA; SWITZERLA ND; 
THE SEPARATE CUSTOMS  TERRITORY OF TAIWAN , PENGHU, KINMEN AND  MATSU; 
TANZANIA; THAILAND; TOGO; TUNISIA; TURKE Y; UGANDA; UKRAINE; 
UNITED  KINGDOM; URUGUAY; TH E BOLIVARIAN  REPUBLIC  OF VENEZUELA;  
VIET NAM; ZAMBIA AND  ZIMBABWE  ................................ ................................ ..............  26 
9   AUSTRALIA – ANTI -DUMPING MEASURES ON  A4 COPY PAPER: STAT EMENT BY 
AUSTRALIA  ................................ ................................ ................................ ....................  32 
10   THAILAND – CUST OMS AND FISCAL MEASU RES ON CIGARETTES FR OM THE 
PHILIPPINES  ................................ ................................ ................................ .................  32 
A. Recourse to Article 22.2 of the DSU by the Philippines  ................................ ........................ 32 
 
 
Prior to the adoption of the Agenda  of the 28 February 2020 DSB meeting , the representative 
of Thailand  said that item 6 of the proposed Agenda2, i.e., the Philippines' request for suspension of 
concessions in the "Thailand – Cigarettes" dispute (DS371) , was not proper ly before the DSB 
because, among other things, of ongoing appellate proceedings under Article 21.5 of the DSU. In 
these circumstances, her country  could not accept the adoption of the proposed Agenda. However, 
Thailand could accept the adoption of the prop osed Agenda if item 6 were removed. Thailand d id 
not take this step lightly. The Philippines' request raise d broad systemic issues about the status and 
future of the dispute settlement system. The DSB should not rush into pre -judging these issues  on 
the ba sis of an artificial deadline of the Philippines' creation. In effect, the Philippines was seeking 
the DSB's a uthorization  to bypass ongoing  appellate proce edings  and to proceed on the basis of 
unadopted compliance panel reports. If this request were  autho rized, all parties to pending appeals 
would be entitled to insist that the DSB adopt panel  reports in spite of  pending  appellate proceedings . 
Thailand d id not believe that the DSB c ould or should allow this. The Appellate Body crisis ha d 
imposed significant challenges onto the rules -based multilateral trading system, including with 
respect to pending disputes such as the "Thailand – Cigarettes" dispute (DS371) . The Philippines' 
request highlight ed the urgency of resolving this crisis. The outcome of pending disputes w ould be 
deprived of any credibility if they were driven by the unilateral actions of a single party, in this case 
the Philippines. It was for that reason that  Thailand ha d supported and continue d to support efforts 
to resolve this crisis as quickly as possible. Thailand  hoped a solution c ould be reached soon that 
would permit the  matter  to move forward . Therefore , Thailand oppose d the adoption of the  Agenda.  
 
 
2 See the original proposed Agenda contained in document WT/DSB/W/663.  WT/DSB/M/441  
 
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  The representative of  the Philippines  said that his country was  disap pointed by Thailand 's efforts to 
block the DSB from conducting its regular work at the present  meeting. This was a transparent 
attempt to prevent the Philippines from exercising its rights under Article 22 of the DSU to seek the 
DSB's authorization to susp end concessions in the "Thailand – Cigarettes" dispute (DS371) . The 
Philippines had initiated this dispute on 7 February 2008,  namely,  4,388 days ago. The Panel had 
issued  its report on 15 November 2010, and the Appellate Body had issued a report on 
17 June  2011. Th e DSB had  adopted the recommendations of the Panel report, as modifi ed by the 
Appellate Body report , on 15 July 2011. Thereafter, the reasonable period of time for Thailand to 
comply with the DSB's recommendations had been  set to expire on  15 May 2012. From then on, and 
with the expiry of the reasonable period of time, the Philippines full y had the right to request th e 
DSB to suspend concessions, and it full y had the right to initiate parallel proceedings under 
Article  21.5 of the DSU to addre ss any future compliance issues. In good faith, the Philippines had 
initiat ed parallel compliance proceedings under Article 21.5  of the DSU. T he first compliance Panel 
report had been  issued on 12 March 2018. A second compliance Panel report had been issue d on 23 
July 2019. The Philippines' position had been  fully upheld. Under the Sequencing Understanding 
between the two parties, all appeals under Article 21.5 of the DSU had to be mandatorily resolved 
within 90 days from their initiation. The 90 -day period s for the appeals of the first and second 
compliance panel reports had expired in 2019. The Philippines was  still waiting for full compliance 
by Thailand with the DSB ruling of 15 July 2011. The Philippines believed that Thailand 's request to 
amend the  Agenda by remov ing the Philippines ' request under Article 22.2 of the DSU  should be 
rejected. The Philippines believed that Thailand's request  was not appropriate . The Philippines asked 
that the Chair man rule that Thailand's  request was  not appropriate. As Members w ould recall, in the 
"EC – Bananas III " dispute (DS27) , two Members had sought the removal from the DSB 's agenda 
of a request under Article 22.2 of the DSU. Such instances  had been resolved in prior cases3 and the 
Philippines t rusted that th e DSB  could continue, at the present meeting , to address the important 
items that figure d on the proposed Agenda, including the Philippines' rights under Article 22.2 of the 
DSU. These issues ha d been the subject of an exchange of letters bet ween Thailand and the 
Philippines, which ha d been circulated to Members in documents WT/DS371/33 and WT/DS371/34 . 
The Philippines underst ood Thailand 's position, and both parties look ed to the WTO system and the 
DSB to proceed in accordance with all the ru les. 
 
The Chairman  noted  that there was a divergence of views regarding the way forward under item  6 
of the  proposed  Agenda,  he, therefore, propose d that the meeting be suspended in order to allow 
time for consultations between the parties to the dispute so as to find a solution.  The Chairman  said 
that the meeting would  be reconvene d at the latest on 5 March 2020 .  
 
The DSB took note  of the statements  and, as proposed by the Chairman, the meeting was 
suspended .  
 
 
Upon resumption of the DSB meeting on 5 March 2020 , the Chairman  said that  without 
prejudice to the rights of Thailand and the Philippines, he wished to propo se that item 6  regarding 
the Philippines' request for suspension of concessions  be taken up as the last item of the Agenda. 
He then proposed that t he Agenda be adopted, as amended .4 
 
The representative of Thailand  said that her country  consider ed that item 6 of the proposed Agenda , 
i.e., the Philippines' request for suspension of concessions in the "Thailand – Cigarettes" dispute 
(DS371) , was not proper because o f ongoing appe llate proceedings  and unadopted reports in the 
proceedings under Article 21.5 of the DSU. In any event, to the extent that the Philippines s ought  
to ignore the agreed procedures under the Sequencing Understanding , the Philippines' request was 
made outside the 30 -day deadline set out in Article 22.6 of the DSU. Thailand had been  compelled 
to block the adoption of the proposed Agenda when this meeting had first convened on 
28 February  2020. Thailand had not do ne so lightly . As Thailand had expla ined on 28 February 2020 , 
the Philippines' request raise d broad systemic issues about the status and future of the dispute 
settlement system. The DSB should not be rushed into pre -judging these issues on the basis of an 
artificial deadline of the Philippin es' creation. Thailand  appreciate d the Chairman 's involvement in 
consultations with the parties on this issue. As her country had explained during the consultations, 
Thailand  did not w ish for the Philippines' unilateral actions to unnecessarily impact the work of the 
 
3 Minutes of the DSB meeting dated 25 January – 1 February 1999, WT/DSB/M/54, pp. 9 -10. 
4 Australia requested the inclusion of an item under "Other Business" regarding Australia's intent ions in 
respect of implementation of the DSB's recommendations in the dispute DS529.  WT/DSB/M/441  
 
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  DSB, including the adoption of pending reports and consideration of efforts to unblock the AB 
selection process es. Members should collectively attempt  to swiftly resolv e the unprec edented crisis 
faced by this Organization rather than deepen  it. In these circumstances, and in line with the 
agreement reached with the Chair man and the Philippines on 4 March 2020 , Thailand had been  
willing to join consensus on adopting the Agenda for th is meeting solely on the clear understanding 
that, following any discussion on the topic, item 6 w ould be suspended . In other words, the DSB 
would not authorize the Philippines to suspend concessions  at the present meeting . If that 
understanding of the agr eement reached on 4 March 2020  was in any way incorrect, Thailand w ould 
be forced to continue oppos ing adoption of the Agenda. In agreeing to this compromise for the 
purposes of this meeting, Thailand retain ed all of its rights under the DSU and the Sequen cing 
Understanding  between the parties. These include d the right to oppose the inclusion of a request by 
the Philippines for authorization to suspend concessions on the Agenda of any future DSB meeting, 
and to oppose any action by the DSB regarding  any suc h request as long as the conditions of the 
DSU and the Sequencing Understanding  between the parties were not fulfilled. Thailand urge d the 
Philippines to exercise restraint in the interest of the system as a whole and to refrain from p lacing 
this matter on the Agenda of the DSB. Thailand reiterate d its willingness to enter into bilateral 
discussions  with the Philippines to explore possible ways forward. Thailand  also reiterate d that the 
real issue was the Appellate Body crisis  and not any individual dispute. As Thailand had stated at 
the 3 March 2020 General Council meeting , the Appellate Body crisis ha d imposed significant 
challenges on the rules -based multilateral trading system, including with respect to pending 
disputes, such a s the "Thailand – Cigarettes" dispute (DS371) . The Philippines' request highlight ed 
the urgency of resolving this crisis. The outcome of pending disputes w ould be deprived of any 
credibility if they were driven by the unilateral actions of a single party, in this case the Philippines. 
In these circumstances, Thailand ha d supported, and continue d to support, efforts to resolve this 
crisis as quickly as possible .5 Thailand  encourage d the Philippines to do the same . Subject to the 
previously discussed understa nding regarding  item 6  of the Agenda , Thailand was willing to join 
consensus on the adoption of the Agenda.  
 
The DSB took note  of the statements  and adopted  the proposed Agenda , as amended.  
1 SURVEILLANCE OF IMPL EMENTATION OF RECOMM ENDATIONS ADOPTED BY  THE DSB 
A. United States – Anti-dumping measures on certain hot -rolled steel products from Japan: 
Status report by the United States ( WT/DS 184/15/ Add.204)  
 
B. United States – Section  110(5) of the US Copyright Act: Status report by the United States 
(WT/DS 160/24/ Add.179)  
 
C. European  Communities – Measures affecting the approval and marketing of biotech products: 
Status report by the European  Union ( WT/DS 291/37/ Add.142)  
 
D. United  States – Anti-dumping and countervailing measures on large residential w ashers from 
Korea: Status report by the United States ( WT/DS464/17/ Add.26)  
 
E. United  States – Certain methodologies and their application to anti-dumping proceedings 
involving China: Status report by the United  States (WT/DS471/17/Add.18)  
 
F. Indonesia – Importation of horticultural products, animals and animal products: Status report 
by Indonesia (WT/DS477/21/Add.13 – WT/DS478/22/Add.13)  
 
G. China – Domestic support for agricultural producers : Status report by China 
(WT/DS511/15/Add.1)  
 
H. China – Tariff rate quotas for certain agricultural products : Status report by China 
(WT/DS517/12)  
 
 
5 Appellate Body Appointments ' proposal, WT/DSB/W/69/Rev.14, 18 February 2020; Communication from 
Thailand, WT/GC/W/769, 26 April 2019.  WT/DSB/M/441  
 
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  1.1.  The Chairman  noted that there were eight sub-items under this Agenda item concerning status 
reports submitted by delegations pursuant to Article 21.6 of the DSU. He recall ed that  Article 21.6 
require d that: " [u]nless the DSB  decides otherwise, the issue of implementation of the 
recommendations or rulings shall be placed on the Agenda of the DSB meeting after six months 
following the date of establishment of the reasonable period of time and shall remain on the DSB's 
Agenda un til the issue is resolved". Under this Agenda item, he invite d delegations to provide up to 
date information about their compliance efforts. He also remind ed delegations that, as provided for 
in Rule 27 of the Rules of Procedure for DSB meetings: " [r]epres entatives should make every effort 
to avoid the repetition of a full debate at each meeting on any issue that has already been fully 
debated in the past and on which there appears to have been no change in Members' positions 
already on record". He then  turned to the first status report under this Agenda item . 
A. United  States – Anti-dumping measures on certain hot rolled steel products from Japan: 
Status report by the United States (WT/DS184/15/Add.204)  
1.2.  The Chairman  drew attention to document WT/DS184/15/Add.204, which contain ed the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning US anti -dumping measures on certain hot -rolled steel products from Japan.  
1.3.  The representative of the United States  said that t he United States had provided a status report 
in this dis pute on 17 February 2020, in accordance with Article 21.6 of the DSU. The United States 
had addressed the DSB 's recommendations and rulings with respect to the calculation of anti -
dumping margins in the hot -rolled steel anti -dumping duty investigation at issue. With respect to 
the recommendations and rulings of the DSB that ha d yet to be addressed, the US Administration 
would work with the US Congress with respect to appropriate statutory measures that would resolve 
this matter.  
1.4.  The repres entative of Japan  said that his country wished to thank  the United States for its most 
recent status report and for its statement made at the present meeting . Japan , once again , called 
on the United States to fully implement the DSB 's recommendations and r ulings so as to resolve this 
matter . 
1.5.  The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting . 
B. United  States – Section 110(5) of the US Copyright Act: Status report by the United 
States (WT/DS160/24/Add.179)  
1.6.  The Chairman  drew attention to document WT/DS160/24/Add.179, which contain ed the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act.  
1.7.  The representative of the United States  said that t he United States had provided a status report 
in this dispute on 17 February 2020, in accordance with Article 21.6 of the DSU. The US 
Administration w ould continue to confer with the European Union, and to work closely with the US 
Congress, in order to reach a mutually satisfactory resolution o f this matter.  
1.8.  The representative of the European Union  said that his delegation wished to  thank the United 
States for its status report and for its statement made at the present meeting . The EU  wished to 
refer to its statements  made at previous  DSB meetin gs under this Agenda item . The EU wished to 
resolve this case as soon as possible . 
1.9.  The representative of China  said that his country  noted that the United States ha d submitted 
180 nearly identical status reports in this dispute. None of them indicate d any progress  on 
implementation . Nearly two decades after the DSB had adopted the Panel report in this dispute , this 
dispute remain ed unresolved. The United States continue d to fail to accord the minimu m standard 
of protection prescribed by the TRIPS Agreement and had become the only WTO Member who fail ed 
to implement the DSB 's recommendations and rulings under the TRIPS Agreement.  Article 21.1 of 
the DSU state d very clear ly that: "prompt compliance wi th recommendations or rulings of the DSB 
is essential in order to ensure effective resolution of disputes to the benefit of all Members ". 
Therefore , China  urged the United States to adopt concrete implementation actions in this dispute WT/DSB/M/441  
 
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  so as to faithfully honour its commitments under the DSU and the TRIPS Agreement without further 
delay.  
1.10.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
C. European  Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European Union (WT/DS291/37/Add.142)  
1.11.   The Chairman  drew attention to document WT/DS291/37/Add.142, which contain ed the 
status report by the European Union on progress in the implementation of the DSB's 
recommendations in the case concerning measures affecting the approval and marketing of biotech 
products.  
1.12.   The representative of the European Union  said that his delegation  continue d to progress with 
the authori zations where the European Food Safety Authority has finali zed its scientific opinion and 
concluded that there were no safety concerns. The EU ha d a strong  record regarding  authori zations 
of GMO requests: over the past 12 months, 18 decisions had been  adopted to authori ze 65 new 
GMOs for feed and food, six GMOs had been  renewed and one GM cut flower had been  authori zed. 
As repeatedly explained by the EU and confirmed by the U nited States  during the EU -US biannual 
consultations held on 12 June 2019, efforts to reduce delays in authori zation procedures were 
constantly maintained at a high level at all stages of the authori zation procedure. This ha d resulted 
in a clear improvement of the situation. During prior DSB meetings, the United States had referred 
to what was known as the EU "opt­out Directive ". The EU wished  to reiterate that the DSB 's 
recommendations and rulings in this dispute did not cover that "opt-out Directive ". The EU act ed in 
line with its WTO obligations. Finally, the EU  recall ed that the EU approval system was not covere d 
by the DSB's recommendations and rulings  in this dispute . 
1.13.   The representative of the United States  thank ed the European Union (EU) for its status report 
and its statement made at the present meeting . The United States continue d to see persistent delays 
that affect ed dozens of applications that ha d been awaiting approval for an extended period. The EU 
had previously suggested that the fault was with the applicants. The United States  disagree d; the 
US concerns relate d to delays at every stage of the approval process that result ed from the actions 
or inactions of the EU and its member States. The EU also ha d suggested that the United States 
"appear s" to acknowledge that there was no ban on genetically engineered product s in the EU. The 
EU was incorrect. It was, and ha d consistently been, the position of the United States that the EU 
had failed to lift all of the WTO -inconsistent member -State bans covered by the DSB 
recommendation. The DSB had adopted findings that, even where the EU had approved a particular 
product, in many instances EU member States had banned those products for certain uses without 
a scientific basis. This include d not only the two member States subject to panel findings – Austria 
and Italy. There were seven additional member States that had previously maintained bans on 
cultivation and ha d since opted out of cultivation under the EU 's legislation: Bulgaria, France, 
Germany, Greece, Hungary, Luxembourg, and Poland. There were also eight member States th at 
had not previously ban ned cultivation of MON -810 but ha d since opted out of cultivation under the 
EU's legislation: Croatia, Cyprus, Denmark, Latvia, Lithuania, Malta, the Netherlands, and Slovenia. 
Further, Austria and Italy appear ed to maintain bans o n other products subject to specific panel 
findings. The EU 's only response, which it continue d to repeat, was that the member States d id not 
restrict marketing or free movement of MON -810 in the EU. As the United States had  noted at the 
prior DSB meeting,  this answer d id nothing to address US concerns. The restrictions adopted by EU 
member States restrict ed international trade in these products and ha d no scientific justification. 
Indeed, this was why the DSB had adopted findings that such restrictions on MON -810 were in 
breach of the EU 's WTO commitments. The United States urge d the EU to ensure that all of its 
measures affecting the approval of biotech products, including measures adopted by individual EU 
member States, were based on scientific principles, and that decisions were taken without undue 
delay.  
1.14.   The representative the European Union  said that t he WTO Agreements d id not require full 
international harmoni zation and le ft some regulatory space or autonomy t o individual WTO Members. 
The European Union ha d different regulatory approaches to non -GMOs and GMOs but, in all cases, 
such regulations d id not discriminate between imported and domestic like products. No EU member 
State has imposed any "ban". Under the terms of the Directive, an EU Member State c ould adopt 
measures restricting or prohibiting cultivation only when such measures were in line with EU law WT/DSB/M/441  
 
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  and were reasoned, proportional, non -discriminatory and based on compelling grounds.  The free 
movement o f seeds was embedded in Article 22 of Directive 2001/18/EC: "member States may not 
prohibit, restrict or impede the placing on the market of GMOs, as or in products, which comply with 
the requirements of this Directive ". The EU  also note d that according to  the provisions of the opt -
out Directive (Article 26b, point 8) the measures adopted under the Directive "shall not affect the 
free circulation of authorised GMOs " in the EU. Currently  the EU Common Catalogue of varieties of 
agricultural species include d 150 varieties of maize MON -810, which were allowed to be marketed 
in the EU. As of the present meeting , the Commission ha d never received any complaints from seed 
operators or other sta keholders concerning the restriction of marketing of MON -810 seeds in the EU. 
This confirm ed the smooth functioning of the internal market of MON -810 seeds. The EU  would invite 
the U nited States to provide any evidence they m ight have at their disposal sub stantiating the 
disruption of the free movement of MON -810 seeds in the EU.  
1.15.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
D. United  States – Anti-dumping and countervailing measures on large residentia l 
washers from Korea: Status report by the United States (WT/DS464/17/Add.26)  
1.16.   The Chairman  drew attention to document WT/DS464/17/Add.26, which contain ed the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning anti -dumping and countervailing measures on large residential washers from Korea.  
1.17.   The representative of the United States  said that t he United States had provided a status 
report in this dispute on 17 February 2020, in accordance wit h Article 21.6 of the DSU. On 
6 May 2019, the US Department of Commerce had published a notice in the US Federal Register 
announcing the revocation of the anti -dumping and countervailing duty orders on imports of large 
residential washers from Korea (84 Fed. Reg. 19,763 ( 6 May 2019)). With this action, the United 
States ha d completed implementation of the DSB 's recommendations concerning those anti -
dumping and countervailing duty orders. The United States continue d to consult with interested 
parties on op tions to address the DSB's recommendations relating to other measures challenged in 
this dispute.  
1.18.   The representative of Korea  said that his country wished to  thank the U nited States for its 
status report. Once a gain, Korea strongly urge d the United States  to take prompt and appropriate 
steps to implement the DSB 's recommendation regarding  the "as such " measure at issue in this 
dispute.  
1.19.   The representative of Canada  said that t he United States continue d to fail to comply with the 
DSB's ruling, arising out of the Appellate Body report in this dispute , that the "differential pricing 
methodology " (DPM) was "as such " WTO-inconsistent. The United States  had also ignored the DSB 's 
recommendation that the United States  bring itself into compl iance with its obligations. Instead, the 
United States  continue d to apply the "as such " inconsistent differential pricing methodology in 
investigations with respect to foreign companies and continue d to collect cash deposits from foreign 
exporters based on  its inconsistent methodology. The reasonable period of time to implement the 
DSB's recommendations relating to the "as such " WTO-inconsistency of the DPM  had expired more 
than two years ago. However, in its latest status report, the United States  said that it continue d to 
consult with interested parties. Moreover, the continued use by the United States of the DPM ha d 
forced Members to initiate  multiple  dispute settlement proceedings concerning this measure. This 
was an inefficient and unnecessary use of WT O dispute settlement resources. In particular, Canada 
had been  forced to challenge the application of the "as such " WTO-inconsistent DPM to Canadian 
companies in the "US – Differential Pricing Methodology " dispute (DS534) . The Panel had found that 
the DPM violated US obligations under the Anti -Dumping Agreement. However, it had also made 
certain findings that dramatically departed from prior Appellate Body findings relating to the DPM 
and zeroing. Canada ha d appealed these problematic panel findings,  but that appeal c ould not be 
heard as the United States continue d to block Appellate Body appointments. Canada remain ed 
deeply concerned about  the continued US failure to comply with the DSB 's recommendations and 
rulings in this dispute . This fai lure seriously undermine d the security and stability of the multilateral 
trading system.  
1.20.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  WT/DSB/M/441  
 
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  E. United  States – Certain methodologies and their application to anti -dumping 
proceedings involving China: Status report by the United States (WT/DS471/17/Add.18)  
1.21.   The Chairman  drew attention to document WT/DS471/17/Add.18, which contain ed the status 
report by the United States on progress in the implement ation of the DSB's recommendations in the 
case concerning certain methodologies and their application to anti -dumping proceedings involving 
China.  
1.22.   The representative of the United States  said that t he United States had provided a status 
report in this dispute on 17 February 2020, in accordance with Article 21.6 of the DSU. As explained 
in that report, the United States continue d to consult with interested parties on options to address 
the DSB's recommendations.  
1.23.   The representative of China  said that o n 22 May 2017, the DSB had adopted the Appellate 
Body Report and the modified Panel Report in this dispute which had found that certain measures 
taken by the United States were inconsistent with requirements of the Anti -Dumpi ng Agreement, 
which include d: (i) the use of zeroing under the W -T methodology was " as such " inconsistent with 
Article 2.4.2; ( ii) the so -called "single rate presumption " as such violate d Article 6.10 and 9.2 ; and 
(iii) the "adverse facts available " was a norm of general and prospective application which could be 
subject to future "as such " challenges . On 19 June 2017, the United States had stated its intention 
to implement the DSB 's recommendations and rulings in this dispute . The arbitration pursuan t to 
Article 21.3(c) of the DSU had decided that the reasonable period of time (RPT) for implementation 
would  be 15 months, expiring on 22 August 2018. Regrettably, more than 18 months after the expiry 
of the RPT, US implementation  efforts  remained  at a standstill. None of its 19 status reports 
submitted thus far indicate d any concrete implementation action. On 1 November 2019, the 
Arbitration pursuant to Article 22.6 of the DSU had determined  that the level of nullification or 
impairment incurred by China was US$ 3.579 billion. This amount , the third largest in WTO history, 
reveal ed the level of damaging consequences b orne by Chinese workers and companies as a result  
of the WTO -inconsistent measures adopted by the United States. In fact, what China had 
experienced in this dispute was  not an exception. Over the past decade, implementation by the 
United States, especially in its defensive trade remedy disputes, ha d become a systemic problem for 
the entire  Membership. Regarding adjudications not in favo ur of it s interests, the United States had 
either left its WTO -inconsistent measures intact or applied cosmetic changes which had not 
fundamentally removed  such non-conformity. Such problematic attitude severely undermine d the 
authority and effectiveness of the dispute settlement system. It le ft WTO Members with no other  
choice but to repeatedly challenge those same issues before panels and the Appellate Body . This 
exacerbate d the already heavy workload of the dispute settl ement system. Article 21.1 of the DSU 
was clear : "prompt compliance with recommendations or rulings of the DSB is essential in order to 
ensure effective resolution of disputes to the benefit of all Members ". China urged the United States 
to faithfully ho nour its implementation obligation and to fully compl y with the DSB's 
recommendations and rulings  in this dispute  without further delay.  
1.24.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
F. Indonesia – Importation of horticultural products, animals and animal products: Status 
report by Indonesia (WT/DS477/21/Add.13 – WT/DS478/22/Add.13)  
1.25.   The Chairman  drew attention to document WT/DS477/21/Add.13 – WT/DS478/22/Add.13, 
which contain ed the status report by I ndonesia on progress in the implementation of the DSB's 
recommendations in the case concerning importation of horticultural products, animals and animal 
products.  
1.26.   The representative of Indonesia  said that her country  had provided a  status  report pursuant 
to Article 21.6 of the DSU. As her country had stat ed at previous DSB meetings, Indonesia had 
commit ted to implement ing the DSB's recommendations and rulings in these disputes. Substantial 
adjustments to the relevant Minist ry of Agriculture (MoA) and Minist ry of Trade (MoT)  Regulations 
had been made . Indonesia w ished to inform Members about the enactment of MoA Regulation 
No. 2/2020 which amend ed MoA Regulation No. 39/2019 concerning Recommendations for 
Importation of Horticultural Products with the aim of further facilitat ing import procedures. With 
regard to Measure 18, Indonesia wished  to underline that the amendment of relevant laws ha d been WT/DSB/M/441  
 
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  included in the National Legislation Program. The Indonesian Government w ould discuss it with the 
Parliament in the near future . Indonesia w ould continue to engage with New Zealand and the United 
States regarding matters related to the DSB's recommendations and rulings in these disputes . 
1.27.   The representative of New Zealand  said that his country acknowledge d Indonesia 's status 
report and the steps that ha d been taken by Indonesia towards compliance to date, a s well as  
Indonesia 's commitment to comply fully with the DSB's recommendations and rulings in this dispute . 
Both of the compliance deadlines that had been  agreed be tween the parties ha d expired. New 
Zealand was seriously disappointed that full compliance ha d still not been achiev ed. New Zealand 
was particularly concerned about the ongoing failure to remove Measure 18 and the continued 
enforcement of limited applicati on windows and validity periods , harvest period import bans , import 
realization requirements and restrictions placed on import volumes based on storage capacity. New 
Zealand was also seriously concerned that, to date, no import recommendations ha d been issued 
for the 2020 import period for New Zealand horticultural products. Thi s blockage was adversely 
impacting New Zealand exporters. If it were not resolved promptly, it could undermine the progress 
made towards compliance to date. New Zealand strongly encourage d Indonesia to take appropriate 
steps, swiftly, to achieve long -term,  commercially meaningful, compliance with the DSB's 
recommendations and rulings in this dispute . 
1.28.   The representative of the United States  said that Indonesia continue d to fail to bring its 
measures into compliance with WTO rules. The United States and New Z ealand agree d that 
significant concerns remain ed with the measures at issue, including the continued imposition of: 
harvest period restrictions, import realization requirements, warehouse capacity requirements, 
limited application windows, limited validity  periods, and fixed licensed terms. The United States 
remain ed willing to work with Indonesia to fully and meaningfully resolve this dispute. The United 
States  underst ood that Indonesia claim ed to have "completed its enactment process " of certain 
regulatio ns. However, t he United States  was still waiting to hear from Indonesia on whether and 
how such action would bring its measures into full compliance. It also remain ed unclear how 
Indonesia 's proposed legislative amendments would address Measure 18 and when  Indonesia w ould 
complete its process. The United States look ed forward to receiving further detail from Indonesia 
regarding the changes to its regulations and laws, especially with respect to Ministry of Agriculture 
Regulation 46/2019 on Strategic Horticu ltural Commodities.  
1.29.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
G. China – Domestic support for agricultural producers: Status report by China 
(WT/DS511/15/Add.1)  
1.30.   The Chairman  drew attention to document WT/DS511/15/Add.1, which contain ed the status 
report by China on progress in the implementation of the DSB's recommendations in  the case 
concerning domestic support for agricultural producers.  
1.31.   The representative of China  said that his country had  provided its second status report in this 
dispute  in accordance with Article 21.6 of the DSU. At its 26 April 2019  DSB meeting , the DSB had 
adopted the Panel report in this dispute. On 10 June 2019, China and the United States had informed 
the DSB that the reasonable period of time for China 's implementation w ould be  11 months and 
5 days and would expire on 31 March 2020. Following  the adoption of the Panel Report, the relevant 
Chinese government agencies has conducted intensive consultations to address the DSB's 
recommendations in this dispute. Given the complexity of the measures at issue and the sensit ivity 
of the subject matter in this dispute, China's  internal process with respect to amending relevant 
measures was still ongoing. China remain ed committed to fulfill ing its implementation obligation in 
accordance with the DSU in due course.  
1.32.   The represent ative of the United States  noted that the parties had informed the DSB, on 
10 June 2019, that the United States and China had agreed that the reasonable period of time for 
China to implement the DSB 's recommendations and rulings in this dispute would expire on 
31 March  2020. China informed the DSB , on 17 January 2020, that it ha d been actively studying 
implementation and would accelerate the process to amend the relevant measures. At the 
27 January 2020 DSB meeting , the United States had requested details from China on the specific 
amendments it w ould make to bring its measures into compliance by 31 March  2020. On 
17 February  2020, China had circulated a status report that did not provide any additional details WT/DSB/M/441  
 
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  regarding China 's compliance efforts. China 's statement note d only that "relevant Chinese 
government agencies have conducted intensive consultations aiming at implementing the 
recommendations and rulings " and that the process was still ongoing. While the United States 
appreciate d China 's state ment that it w ould continue to expedite the process, the United States  
reiterate d its request for more detail regarding China 's efforts. The United States wishe d to engage 
bilaterally with China on specific amendments that could serve to resolve this dispu te. 
1.33.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
H. China – Tariff rate quotas for certain agricultural products: Status report by China 
(WT/DS517/12)  
1.34.   The Chairman  drew attention to document WT/DS517/12, which contain ed the status report 
by China on progress in the implementation of the DSB's recommendations in th e case concerning 
tariff-rate quotas for certain agricultural products.   
1.35.   The representative of China  said that his country had  provided its status report in this dispute  
in accordance with Article 21.6 of the DSU. At its 28 May 2019  DSB meeting, the DSB had adopted 
the Panel report in this dispute. On 3 July 2019, China and the United States had informed the DSB 
that the reasonable period of time for China 's implementation had been  set to expire on 
31 December 2019. As of 31 December 2019, China had fully i mplemented the DSB 's 
recommendations and rulings in this matter. On 16 January 2020, China and the United States had 
agreed to extend the reasonable period of time to 29 February 2020 to allow the United States 
additional time to evaluate China 's compliance measures. On 29 September 2019, the National 
Development and Reform Commission of China had promulgated the Detailed Rules for Application 
and Allocation of Import Tariff -Rate Quotas for Grains in 2020 (Gonggao 2019 No.9). On 
30 November 2019,  the Ministry of Commerce of China (MOFCOM) had promulgated the Decision to 
Abolish and Modify Some Rules (Ling 2019 No.1), which had modified the Provisional Measures on 
the Administration of Import Tariff Rate Quotas for Agricultural Products (Ling 2003 No.4). Both t he 
Detailed Rules for Application and Allocation of Import Tariff -Rate Quotas for Grains in 2020 and the 
modified Provisional Measures on the Administration of Import Tariff Rate Quotas for Agricultural 
Products were consistent with the DSB's recommendations and rulings in this dispute and the WTO 
covered agreements, including China 's commitments under its Protocol on Accession to the WTO. As 
set forth in the Detailed Rules for Application and Allocation of Import Tariff -Rate Quotas for Grains 
in 2020, the overall objective of China 's administration of the Tariff-Rate Quotas (TRQs) was to 
achieve full utilization of both STE and non -STE portions of each TRQ, consistent with market 
conditions. China 's TRQs for wheat, rice and corn for the year 20 20 had been fully allocated to end -
users. In accordance with China 's measures, all unused and returned TRQ amounts w ould be 
reallocated and penalties for non -use w ould be imposed in accordance with the Provisional Measures 
on the Administration of Import T ariff-Rate Quotas for Agricultural Products. Therefore, China was 
in full compliance with the DSB 's recommendations and rulings in this dispute.  
1.36.   The representative of the United States  thank ed China for its first status report  in this dispute , 
circulated on 17 February 2020. China referenced the 2020 Allocation Rules, which had been  issued 
on 29 September 2019, and its decision to abolish and modify some rules in the Provisional Measures 
on the Administration of Import Tariff R ate Quotas for Agricultural Products, which had been  
promulgated on 30 November 2019. As China was aware, the findings of the Panel in this dispute 
relate d to China 's administration  of its tariff rate quotas ( "TRQs"). Therefore, while the United States 
noted the changes made in China 's underlying legal instruments, the United States was interested 
in the manner in which those measures were applied in practice. China had stated in its status report 
that the overall objective of China 's administration of the TRQs was to achieve full utilization of both 
the STE and non -STE portions of each TRQ, consistent with market conditions. China had also stated 
that its TRQs for wheat, rice and corn for the year 2020 ha d been fully allocated to end -users. The 
United State s had requested from China additional information to verify this allocation information 
and look ed forward to meaningful engagement from China. China 's status report also assert ed that 
all unused and returned TRQ amounts w ould be reallocated and penalties for non -use w ould be 
imposed in accordance with the recently amended measures. The United States w ould be monitoring 
the reallocation process closely and look ed forward to further updates from China regarding its 
administration. The United States note d that China 's status report assert ed that, as of 
31 December  2019, China had fully implemented the DSB 's recommendations and rulings in this 
matter. The United States was not in a position to agree with China 's claim of compliance at this WT/DSB/M/441  
 
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  time. As set out in this statement, the United States look ed forward to continuing engagement with 
China on the information requested and on China 's administration of its tariff-rate quotas . 
1.37.   The DSB took note of the statements . 
2  UNITED STATES – CONTINUED DUMPING A ND SUBSIDY OFFSET AC T OF 2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE DSB  
A. Statement by the European Union  
2.1.  The Chairman  said that t his item was on the Agenda of the present  meeting at t he request of 
the European Union . He then  invite d the representative of the European Union to speak.  
2.2.  The representative of the European Union  said that his delegation  request ed, once again , that 
the United States stop transferring anti -dumping and countervailing duties to the US industry. Even 
though  the amounts ha d considerably decreased, the most recent report  under the Continued 
Dumping and Subsidy Offset Act of 2000  (December 2018 ) showed that amoun ts were still being 
disbursed  in practice . Every disbursement that still t ook place was clearly an act of non -compliance 
with the DSB's recommendations and rulings  in this dispute . As long as the U nited States did not 
fully stop transferring co llected duties, th is item should  rightly remain  under the DSB's surveillance. 
The EU  could assure Members that due to the long -standing nature of this breach, the EU w ould 
continue to insist  on placing this item on the Agenda of DSB meetings , as a matter of principle , and 
independently f rom the cost resulting from the application of such limited duties. The EU renew ed 
its call on the United States to abide by its clear obligation under Article 21.6 of the DSU to submit 
implementation reports in this  dispute. The EU w ould continue to p lace this item  on the Agenda of 
DSB meetings as long as the U nited States had not fully implemented the DSB's recommendations 
and rulings  and as long as disbursements had not cease d completely.  
2.3.  The representative of the United States  said that a s the United States ha d noted at previous 
DSB meetings, the Deficit Reduction Act – which include d a provision repealing the Continued 
Dumping and Subsidy Offset Act of 2000 – had been  enacted into law 14 years ago in February  2006. 
Accordingly, the United States ha d implemented the DSB 's recommendations and rulings in these 
disputes. The United States  recall ed, furthermore, that the EU ha d acknowledged that the Deficit 
Reduction Act d id not permit the distribution of duties collect ed on goods entered after 
1 October  2007, more than 12 years ago. Even aside from this, the United States question ed the 
trade rationale for inscribing this item  on the  DSB's  Agenda . In May 2019, the EU had notified the 
DSB that disbursements related to pre -October 2007 EU exports to the United States totalled  
US$ 4,660.86 in fiscal year 2018. As such, the EU had announced that it would apply an additional 
duty of 0.001 % on certain imports of the United State s. These minuscule tariffs vividly demonstrate d 
what ha d been evident for years – it was not common sense that was driving the EU 's approach to 
this Agenda item. The EU suggest ed it had requested the DSB 's consideration of this item "as a 
matter of princip le", but the EU 's principles shift ed depending on whether it was the complaining or 
responding party. As the United States  had explained repeatedly, there was no obligation under the 
DSU for a Member to provide further status reports on the progress of its  implementation once that 
Member announce d that it ha d implemented the DSB 's recommendations. The widespread practice 
of Members – including the European Union as a responding party – confirm ed this understanding 
of Article 21.6  of the DSU . Indeed, at the 27 January 2020 DSB  meeting, one Member  had informed 
the DSB that it had come into compliance with the DSB 's recommendations in two disputes (DS472, 
DS497). That Member ha d not provided a status report for the present  meeting, consistent with the 
under standing that there was no obligation for a Member to provide further status reports once that 
Member announce d that it ha d implemented the DSB 's recommendations. Accordingly, since the 
United States ha d informed the DSB that it ha d come into compliance in  this dispute, there was 
nothing more for the United States to report in a status report.  
2.4.  The representative of Canada  said that his country wished to thank the European Union for 
placing this item on the Agenda  of the present  meeting . Canada agree d with t he European Union 
that the Byrd Amendment should remain subject to the surveillance of the DSB until the United 
States cease d to administer it . 
2.5.  The DSB took note of the statements.  WT/DSB/M/441  
 
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  3  EUROPEAN COMMUNITIES  AND CERTAIN MEMBER STATES – MEASURES AF FECTING 
TRADE I N LARGE CIVIL AIRCRA FT: IMPLEMENTATION O F THE RECOMMENDATION S 
ADOPTED BY THE DSB  
A. Statement by the United States  
3.1.  The Chairman  said that t his item was on the Agenda of the present meeting at the request of 
the United States . He then invite d the representative of the United States to speak . 
3.2.  The representative of the United States  noted that once again the European Union ha d not 
provided Members with a status report concerning the "EC – Large Civil Aircraft " dispute (DS316) . 
As the United Stat es had noted at several recent DSB meetings, the EU ha d argued  – under a 
different Agenda item – that, where the EU as a complaining party d id not agree  with another 
responding party Member 's "assertion  that it has implemented the DSB ruling ", "the issue remains 
unresolved for the purposes of Article 21.6 DSU ". Under this Agenda item, however, the EU argue d 
that by submitting a compliance communication, the EU no longer need ed to file a status report, 
even though  the United States as the complaining party d id not agree with the EU 's assertion  that 
it had complied. The EU 's position appear ed to be premised on two unfounded assertions, neither of 
which was based on the text of the DSU. First, the EU ha d erroneously argued that where "a matter 
is with the adjudicators, it is temporarily taken out of the DSB 's surveillance ". There was nothing in 
the DSU text to support that argument, and the EU provide d no explanation for how it read 
Article  21.6 of the  DSU to contain this limitation. Of course, this would be a convenient limitation on 
Article 21.6  for purposes of this dispute, as the DSB had authorized the United States to impose 
countermeasures of approximately US$ 7.5 billion annually due to the adverse effects on the United 
States from subsidies provided by the EU and four member States. But that limitation d id not exist 
in the text of Article 21.6. Second, the EU  once again  relied on its incorrect assertion that t he EU 's 
initiation of compliance panel proceedings mean t that the DSB was somehow deprived of its authority 
to "maintain surveillance of implementation of rulings and recommendations ". Yet again, there was 
nothing in Article 2 of the DSU or elsewhere that limited the DSB 's authority in this manner. It was 
another invention of the EU. The EU was not providing a status report because of its assertion that 
it had complied, demonstrating the EU 's principles var ied depending on its status as complaining or 
respo nding party. Perhaps the EU chose not to report on the progress in its implementation because, 
rather than actually attempt to achieve compliance in this dispute, the EU ha d pursued a strategy 
of endless and meritless litigation. The report of the second c ompliance panel show ed how misguided 
the EU 's strategy was. The second compliance panel, like the prior one, had rejected the EU 's claim 
of compliance. But despite yet another finding of non -compliance, the EU had chosen to appeal the 
panel report, seeking  yet more litigation in this 15 -year dispute. The representative of the  United 
States asked the EU whether it w ould not be more productive for the EU and its member States to 
focus on resolving this dispute . In that regard, some four months after the United States had been  
compelled to impose countermeasures on EU imports, the United States  was still await ing a concrete 
proposal from the EU on how it would withdraw the WTO -illegal subsidies to resolve this dispute. In 
sum, the US posi tion on status reports ha d been consistent and clear: under Article 21.6 of the DSU, 
once a responding Member announce d to the DSB that it ha d complied, there was no further 
"progress " on which it c ould report, and therefore no further obligation to provid e a status report. 
But as the EU allegedly disagree d with this position, it should for future meetings provide status 
reports in this "EC – Large Civil Aircraft " dispute (DS316) . The EU c ould report on the progress in its 
implementation in this dispute in light of the five separate WTO reports having found  that the EU 
and four member States ha d failed to comply with WTO subsidy rules.  
3.3.  The representative of the European Union  said that, a s during  previous DSB meetings, the 
United States had, once again , asserted that the EU was taking inconsistent positions under Article 
21.6 of the DSU , depending on whether the EU was a complaining party or a defending party in a 
dispute. The United States  had also referred to the EU's appeal filed against the report of  the second 
compliance panel as an example of the EU's  "misguided approach " pursuing "endless and meritless 
litigation ... instead of attempting to achieve compliance ". Both US assertions were without merit. 
As the EU ha d repeatedly explained at past DSB meetings, the crucial point for the defending party's 
obligation to provide status reports to the DSB was the stage of t he dispute. In the "EC – Large Civil 
Aircraft" dispute (DS316) , the dispute was at a stage where the defending party d id not have an 
obligation to submit status reports to the DSB. As previously mentioned,  in this dispute  the EU ha d 
notified a new set of compliance measures to the DSB. That new set of compliance measures had 
been a clear demonstration that the EU – contrary to the United States  in the parallel "US — Large 
Civil Aircraft (2nd complaint)" dispute (DS353)  – was serious about and committed to achieving WT/DSB/M/441  
 
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  compliance . That new set of compliance measures ha d been subject to an assessment by a 
compliance panel and the panel's report ha d been issued on 2 December 2019 . As noted in the 
statement  made by the EU  at the 18 December 2019 DSB meeting, the EU believed that significant 
aspects of the compliance panel's report c ould not be regarded as legally correct and were very 
problematic from a systemic perspective when i t came to assessing compliance with the subsidy 
disciplines of the WTO Agreements. It was in order to have these legal errors corrected, and not – 
as the United States  seem ed to imply – to continue litigation for the sake of litigation, that the EU 
had filed an appeal against the compliance panel's report on 6 Decembe r 2019. The EU  was 
concerned that with the current blockage of the two -step multilateral dispute settlement system, 
the EU  was losing the possibility of a proper appellate review of the serious flaws contained in the 
panel report. While the blockage continue d, the EU  stood ready to discuss with the U nited States 
alternative ways to deal with this appeal. The EU was  also committed  to finding a balanced 
negotiated solution with the United States  that would allow leaving both aircrafts disputes behind. 
These considerations d id not, however, alter the fact that the compliance proceeding in this dispute 
had not been concluded. Whether or not the ma tter was "resolved " in the sense of Article 21.6 of 
the DSU remain ed the very subject matter of this ongoing litigation. The EU asked h ow it could  be 
said that the defending party should submit "status reports" to the DSB in such circumstances . The 
EU would be very concerned with a reading of Article 21.6 of the DSU that would require the 
defending party to notify the purported "status of its implementation efforts " through the submission 
of status reports to the DSB, while dispute settlement p roceedings on that precise issue were 
ongoing. The EU note d that its reading of the provision was supported by other WTO Members. The 
EU's view was further supported by Article 2 of the DSU on the administration of the dispute 
settlement rules and procedur es: where, further to the disagreement between the parties on 
compliance, a matter was with the adjudicators, i t was temporarily taken out of the DSB's 
surveillance. Under Article 21.6 of the DSU, the issue of implementation had to  remain on the DSB 's 
Agenda until the issue was resolved. In the "US — Offset Act (Byrd Amendment)" dispute (DS217) , 
the EU d id not agree with the US assertion that it ha d implemented the DSB 's recommendations and 
rulings. This mean t that the issue remain ed unresolved for the purposes of Article 21.6 of the DSU. 
If the United States  did not agree that this issue remain ed unresolved, nothing prevent ed the United 
States  from seeking a multilateral determination through a  compliance procedure, asking for a 
confirmation of its assertion that the CDSOA  measure ha d been repealed in line with the DSB's 
recommendations and rulings , just like the EU was doing in the "EC – Large Civil Aircraft" dispute 
(DS316) . 
3.4.  The DSB took note of the statements.  
4  INDIA – TARIFF TREAT MENT ON CERTAIN GOOD S IN THE INFORMATION  AND 
COMMUNICATIONS TECHN OLOGY SECTOR  
A. Request for the establishment of a panel by the European Union (WT/DS582/9)  
4.1.  The Chairman  drew attention to the communication from the European Union contained in 
document WT/DS582/9 . He then  invite d the representative of the European Union to speak.  
4.2.  The representative of the European Union  said that withi n the framework of the WTO, India 
had under taken the commitme nt not to apply import duties on information and communications 
technology ( ICT) products. However, for several years, India ha d adopted measures to reintroduce 
and regularly increase import duties on th ese products, up to 20%, and this despite the tariffs  in its 
WTO bound Schedule of Concessions on th ese products. The EU ha d raised the issue of India's tariffs 
on ICT products a number of times both bilaterally and in various WTO fora. Unfortunately , the 
problem  had not been solved . The value of the EU's an nual exports of related goods to India 
amount ed to approximately  EUR 400 million. The EU had requested consultations with India on this 
matter on 2 April 2019. The c onsultations had taken  place on 21 May 2019. The se consultations had 
been very useful in clarifying a certain number of points,  but they had failed to solve the problem. 
The EU urge d India to bring its tariffs on ICT products in line with its WTO obligations. To th at end, 
the EU request ed the establishment of a panel to assess fully these measures.  
4.3.  The representative of India said that his country was  disappointed with the European Union's 
decision to request the establishment of a panel regarding  India's measures concerning the tariff 
treatment o n certain goods in the Information and Communications Technology (ICT) Sector. India 
believe d that consultations held with the European Union on 21 May 2019 had been  constructive 
and that India had been  able to address the concerns raised by the European Union by ade quately WT/DSB/M/441  
 
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  explaining its measures concerning the tariff treatment on certain goods in the ICT sector. I ndia 
observed that both the EU's request for consultations and its request  for the establishment of a panel 
had carefully avoid ed any reference to either the Ministerial Declaration on Trade in Information 
Technology Products (ITA -1) or the Declaration on the Expansion of Trade in Information Technology 
Products (ITA -2) which were key to understand ing the issues. India 's original WT O Schedule ha d 
been subject to various amendments. India believed  that ITA-1 did not contain any obligation to 
eliminate customs duties (and other duties and charges of any kind) on the products mentioned by 
the EU in its request for consultations and its request for the establishment of a panel. However, the 
EU was essentially request ing that  India implement a declaration made by select countries , namely, 
ITA-2, to which India was not a party. The dispute s ought  to take advantage of an inadvertent error 
of a purely formal character in the transposition of HS2002 to HS2007 committed while transposing 
the tariff lines and the description of the products recommended by the World Customs Organization 
(WCO). India ha d attempted to rectify the error through WTO d ocument G/MA/TAR/RS/572 , dated 
25 September 2018 , on which objections ha d been raised by certain Members, including the E U, 
despite the fact that the rectification request had been made  in accordance with "the procedures for 
modification and rectification of Schedules of tariff concessions " contained in the Decision of 
26 March 1980 (BISD 27S/25). The objections to the request for rectification and the dispute raised 
by the EU went  against the requirements to interpret and implement a treaty i n good faith. India 
was fully committed to its ITA -1 commitment and ha d been abiding by it over the years. India, upon 
signing ITA -1 in 1997, had presented its schedule of commitments, which had subsequently been 
certified in document WT/L et/181. India wished to reiterate that it had not intend ed to commit , and 
would not commit to, any obligations beyond the scope of India's ITA -1 commitment as inscribed in 
that document. India maintain ed that the products arising out of technological progression c ould not 
be covered by ITA-1. Similarly, purported concessions emanating solely from incorrect HS 
transposition s were not within the scope of the substantive obligations contained in ITA -1. It was 
evident from WTO document G/MA/TAR/RS/24 , dated 2 April 1997 , that I ndia had made it very clear 
at the time of under taking commitments under ITA -1 that India reserve d the right to make technical 
changes to its schedule and to correct any errors, omissions or inaccuracies. India also note d that 
most of the products mentione d in the EU 's request for consultations and in its request for the  
establishment of a panel were covered under the subsequent declaration made by select countries  
which had led  to ITA -2, to which India was not a party. India consider ed that this dispute was an 
attempt to take advantage of its inadvertent error of a purely formal character. At this stage , India 
was deeply aware  of its responsibilit ies and ha d always implemented decisions reach ed at the WTO, 
including decisions of the DSB. The issues raised in this dispute seriously undermine d India's 
sovereignty as the purported commitment went beyond the consent provided by India when it had 
agreed to implement ITA -1. India was surprised that in spite of India's good faith explanation of the 
challeng ed measures and its offer for continuous bilateral engagement to resolve any issues,  the EU 
had instead chosen to request  the establishment of a panel which w ould put a strain on already 
scarce resources of the DSB. Therefore , India was not in a position t o accept the establishment of a 
panel at the present meeting. India wished to reiterate  its willing ness to cooperate with the E U to 
seek a mutually satisfactory solution at a bilateral level. India believe d that open and bilateral 
discussions in good faith  between the parties w ould result in a more constructive and satisfactory 
outcome.  
4.4.  The representative of Japan  said that his country  share d the EU's concerns regarding the WTO -
consistency of the measures challenged in this dispute. Japan ha d serious concer ns that India ha d 
raised its customs duties on certain products in the information and communications technology 
(ICT) sector since 2014, in excess of the bound rates set forth in its Schedules of Concessions and 
Commitments annexed to the GATT 1994. Japan  had repeatedly raised its concerns with India for 
years, but India had taken no action to rectify the situation. Subsequently , Japan had requested i ts 
own consultations with India pursuant to Articles 1 and 4 of the DSU on 10 May 2019 with a view to 
reaching a mutually satisfactory solution (DS584). The se consultations ha d failed to settle the matter 
thus far. Regrettably, India had raised its customs duties further on certain ICT products in 
February  2020. Once the panel was established in this dispu te, Japan st ood ready to actively 
contribute to the panel proceedings.  
4.5.  The representative of the United States  said that t he United States was a significant exporter 
of goods in the information and communications technology (ICT) sector in the categories of products 
described in the European Union 's panel request. The United States  share d the EU's serious concerns 
regarding the customs duties applied by India on imports of certain ICT products. The United States 
would closely monitor the progress of this d ispute, as well as any developments in the disputes WT/DSB/M/441  
 
- 15 - 
 
  initiated by Japan (WT/DS584) and Chinese Taipei (WT/DS588) also concerning India 's treatment 
of certain ICT products.  
4.6.  The DSB took note of the statements and agree d to revert to this matter  should the re questing 
Member so wish . 
5  COLOMBIA – ANTI -DUMP ING DUTIES ON FROZEN  FRIES FROM BELGIUM,  GERMANY 
AND THE NETHERLANDS  
A. Request for the establishment of a panel by the European Union (WT/DS591/2)  
5.1.  The Chairman  drew attention to the communication from the Europ ean Union contained in 
document WT/DS591/2 . He then  invite d the representative of the European Union to speak.  
5.2.  The representative of the European Union  said that his delegation  had serious concerns about 
the investigation leading to the imposition by Colombia of anti -dumping duties on frozen fries from 
Belgium, the Netherlands and Germany. These relate d to nearly  all aspects of the investigation, from 
initiation, to the analyses on dumping, injury  and causality , as well as the respect of certain 
procedural rights. One of the more systemic concerns, which other WTO Members might be 
interested in , was the fact that in this investigation Colombia had disregarded the export price 
provide d by the cooperating exporting producers in the questionnaire reply , and that Colombia had 
instead us ed the data in Colombia's national import database , also known as the "DIAN database ". 
Another systemic concern was the fact that mandated under Colombian law, Colombia had published 
some of the import information from the DIAN database on clients, prices and volume, which was 
information that by its very nature was confidential and whose confidentiality ha d not been waived 
by the ones supplying the informat ion. Such disclosure of confidential information was contrary to 
the provisions of the Customs Valuation and Anti -Dumping Agreements. The EU urge d Colombia to 
bring its unwa rranted anti -dumping duties imposed on frozen fries from Belgium, the Netherlands 
and Germany in line with its WTO obligations. To this end, the EU request ed the establishment of a 
panel to assess the WTO -compatibility of these duties.  
5.3.  The representative of  Colombia  said that his country  expressed regret at the EU's request for 
the estab lishment of a panel in this dispute. Colombia believed that t his request was premature. The 
parties ha d not yet exhausted all possibilities of arriving at a mutually agreed solution in this dispute. 
In fact, Colombia was particularly surprised by the EU's decision to request the establishment of a 
panel at this time, given th at efforts were currently under way in Bo gota and in Brussels in order to 
amicably resolve this dispute. Therefore , Colombia c ould not accept the establishment of a panel at 
this time. Colombia remain ed fully available to work together with the EU in seeking to arrive at an 
amicable solution in this dispute and expressed the hope that this c ould be achieved.  
5.4.  The DSB took note of the statements and agree d to revert to this matter  should the requesting 
Member so wish . 
6  RUSSIA – MEASURES AF FECTING THE IMPORTAT ION OF RAILWAY EQUIP MENT AND 
PARTS THEREOF  
A. Report of the Appellate Body (WT/DS499/AB/R and WT/DS499/AB/R/Add.1) and 
Report of the Panel (WT/DS499/R and WT/DS499/R/Add.1)  
6.1.  The Chairman  drew attention to the communication from the Appellate Body contained in 
document WT/DS499/10 transmitting the A ppellate Body Report in the dispute: "Russia – Measure 
Affecting the Importation of Railway Equipment and Parts Thereof ", which had been  circulated on 
4 February 2020 in document WT/DS499/AB/R and Add.1.  He remind ed delegations that the 
Appellate Body Repo rt and the Panel Report pertaining to this dispute ha d been circulated as 
unrestricted documents. As Members were aware, Article 17.14 of the DSU require d that: "an 
Appellate Body report shall be adopted by the DSB and unconditionally accepted by the parties to 
the dispute unless the DSB decides by consensus not to adopt the Appellate Body report within 
30 days following its circulation to Members. This adoption procedure is without prejudice to the 
right of Members to express their views on an Appella te Body report ". WT/DSB/M/441  
 
- 16 - 
 
  6.2.  The representative of Ukraine  said that his country  welcome d the Report of the Appellate Body 
in this dispute  and wishe d to compliment  the members of the Appellate Body and the Panel  for their 
work. Ukraine also wished  to com mend  the WTO S ecretariat team for its hard work in this case , as 
well as  to thank all third parties for their constructive, thoughtful and active engagement throughout  
these proceedings. The outcome  of this dispute was vital and beneficial for the entire  Membership. 
Its outcome had contribute d crucially important rulings regarding the interpretation and application 
of certain provisions of the TBT Agreement, inter alia , Articles 5.1.1 and 5.1.2 , as well as of  Article  11 
of the DSU.  
6.3.  Ukraine wished to  draw Members' attention to the fact that this case  represented  the first 
opportunity to interpret Article 5.1.1 of the TBT Agreement  and in particular the phrase "in a 
comparable situation ". More specifically, the Appellate Body had concluded that the assessmen t of 
whether access was granted under conditions no less favourable "in a comparable situation " should 
focus on factors having a bearing on the conditions for granting access to conformity assessment to 
suppliers of like products and the ability of the reg ulating Member to ensure compliance with the 
requirements.6 Ukraine was generally pleased that the Appellate Body ruling had vindicate d most of 
the claims advanced by Ukraine and had openly reject ed all of the claims of the Russian Federation, 
inter alia , claims concerning the Panel 's preliminary ruling under Articles 6.2 and 11 of the DSU. 
Despite the conclusion of the Appellate Body regarding the non-existence of the systematic import 
prevention of Ukrainian railway products, Ukraine underst ood that the t hreshold for establish ing the 
existence of an unwritten measure was high . Therefore, the detailed analysis provided by the 
Appellate Body in this case constitute d a valuable contribution that w ould further improve the 
security and predictability of the mul tilateral trading system. In light of the long -standing difficulties 
and challenges faced by  the dispute settlement system , Ukraine appreciate d all contributions of the 
Appellate Body. The work done by the Appellate Body was of the utmost importance and would 
certainly  have an impact on further developments in improv ing and building the rules -based 
multilateral trading system. Therefore, Ukraine request ed that the DSB adopt the Appellate Body 
Report (WT/DS499/AB/R and WT/DS499/AB/R/A dd.1) pursuant to Article 17.14 of the DSU and the 
Panel Report (WT/DS499/R and WT/DS499/R/A dd.1) at the present meeting . Ukraine hope d that 
the Russian Federation w ould comply with the DSB's recommendations and rulings that would  be 
adopted at the present meeting . 
6.4.  The representative of the Russian Federation  said that her country wished to  thank the 
Appellate Body, and the Secretariat staff having assist ed it, for thei r hard work throughout the course 
of this dispute. Russia w ished  to raise certain concerns and share its views regarding specific  findings 
of the Appellate Body. First, in respect of paragraph 5.148 of the Appellate Body Report which 
referred to Crimea , Russia believed that the  relevant part of th at paragraph was no more than a 
quote by the Appellate Body of the content of the UN High Commissioner for Human Rights Report 
and not  the Appellate Body 's own conclusion or statement. Russia firmly believed  that q uestions of 
a political nature, including those concerning state sovereignty over certain territories, fell outside 
of the WTO's mandate  and were not and c ould not be governed by the WTO Agreements . Therefore,  
they c ould not be the subject matter of a WTO dispute and, consequently, c ould not be subject to 
assessment or review by the WTO or any of its bodies, including the Appellate Body. Second, Russia  
also wished  to raise concerns regarding certain substantive findings of the Appell ate Body. Before 
proceeding with specific comments, Russia wished  to remind Members of  certain aspects relevant  to 
the dispute. In August 2018 , Ukraine had notified the DSB of its decision to appeal, among others, 
the Panel 's conclusions in respect of the instructions suspending certificates and the decisions 
rejecting applications for certificates. The Panel had concluded that Ukraine had failed to establish 
the inconsistency of Russia 's actions with its obligations under Articles 5.1.1 and 5.1.2 of the TB T 
Agreement. In this respect, the Appellate Body had found numerous errors made by the Panel during 
its objective assessment of the matter before it. In particular, the Appellate Body had found that the 
Panel had erred in its application of Article 5.1.1 o f the TBT Agreement to the facts of the present 
case. The Panel had also  failed to make an objective assessment when allocating the burden of proof 
under Article 5.1.2 of the TBT Agreement. Therefore, the Appellate Body had reversed the relevant 
Panel 's findings. However, it had not been in a position to complete the legal analysis due to the 
absence of sufficient factual findings and undisputed facts on the record. After several years of 
intensive work and defen ce of Russia 's legitimate interests, conclusi ons that had resulted in  "no 
decision " was something that c ould hardly be considered a satisfactory solution to this dispute. 
Russia welcome d the Appellate Body 's statement that a threat to the life and health of governmental 
employees in performing part of the conformity assessment procedure c ould be a relevant factor in 
 
6 Appellate Body Report, "Russia – Railway Equipment ", para. 5.153.  WT/DSB/M/441  
 
- 17 - 
 
  comparing the situations for purposes of Article 5.1.1 of the TBT Agreement in a particular case. In 
light of this statement , Russia note d that the Federal Budgetary Organ ization 's "Register of 
Certification on the Federal Railway Transport " would be in a position to conduct inspections in the 
territory of Ukraine subject to the safety of Russian officials, including the absence of any threat of 
criminal prosecution of Russ ian officials pursuant to the Criminal Code of Ukraine as amended by 
the Laws of Ukraine dated 15 April 2014 (No. 1207-VII) and 18 October 2018 (No. 2599-VIII), as 
well as any similar ongoing or future procedures in Ukraine.  
6.5.  Russia expressed  disappoint ment at the manner in which the Appellate Body had analy sed 
Russia 's claim pertaining to the Panel 's conduct when  it had  stepped into the shoes of the 
complainant wh ile identifying one of the measures at issue . The Panel had  describ ed the measure in 
a manner that Ukraine had never presented . Consequently, the Panel had examin ed this measure 
from a perspective that had never been put forward by the complainant . Therefore, the Panel had 
acted inconsistently with Article 11 of the DSU. The Appellate Body had failed to address this 
separate claim based on a separate legal ground . The Appellate Body had simply stat ed that it 
rejected this claim on the same basis as Russia 's preliminary ruling cla ims, even though the matter 
at issue was substantively different from the one regarding  the preliminary ruling claims. However, 
despite these concerns, Russia  believed t hat overall the Appellate Body 's examination of this dispute 
and its outcomes more than  ever underline d the importance of the Appellate Body in the WTO dispute 
settlement system . They also underlined  the need for the Membership to resolve the Appellate Body 
crisis in order to ensure security and predictability to the multilateral trading sys tem, as well as the  
attainment of the objectives of the WTO Agreements to the benefit of all Members.  Therefore, Russia 
welcome d the Appellate Body Report in this dispute .  
6.6.  Russia also wished  to state that most of the measures found by the Panel to be inco nsistent 
with Russia 's WTO obligations ha d already been brought into conformity with WTO rules. With 
respect to the so -called "non-recognition of the certificates of conformity ", Russia  noted that the 
Protocol of the Ministry of Transport and the letters o f the Federal Railway Transport Administration 
challenged by Ukraine in its Panel request had been  terminated in 2018 and revoked in March 2020, 
respectively. Thus, the existing legal framework applied by Russia d id not contain any recognition 
requirements. With respect to the decisions rejecting the applications for certificates, Russian 
certification  authorities ha d informed the re levant  Ukrainian producers by mail o f the specific  
requirements t hat had to  be satisfied and the procedure t hat had to  be followed in order to obtain 
the necessary certificates. Therefore, Russia wished to inform the Members hip that as of  now it had 
already complied with the recommendations by the Panel and the Appellate Body and brought all of 
its measures at issue into consistency with Russia 's obligations under the WTO Agreements. As a 
final note, Russia was obliged to dra w Ukraine 's attention to Article 17.10 of the DSU . Article 17.10  
establishe d that the proceedings of the Appellate Body were confidential. In simple terms, it mean t 
that prior to the official circulation of the Appellate Body report to Members, as determin ed by the 
Appellate Body, any disclosure of information and/or any comments related to the substance of the 
report in the media constitute d an explicit violation of the WTO confidentiality requirements. 
Nevertheless , Ukraine had repeatedly disrespect ed these requirements. In this particular case, 
Ukraine 's trade representative and deputy Minister had felt compelled to share the outcomes of the 
dispute on the Facebook page before the official issuance of the report. This was not the first time 
that confident iality requirements were not respected by  Ukrain e. Russia  asked that the DSB condemn 
the continued violation by Ukraine of such basic WTO rules of procedure.  
6.7.  The representative of the United States  said that t he United States wishe d to raise an important 
systemic concern. The United States consider ed that very serious issues were raised by the failure 
of the Appellate Body to follow the mandatory 90 -day deadline in Article 17.5 of the DSU and the 
continued service on this appeal of a n individual who had ceased to be a member of the Appellate 
Body during the appeal, including with respect to the status of such a report. As the document ha d 
not been issued by three Appellate Body members and had not been issued within 90 days, 
consisten t with the requirements of Article 17 of the DSU, it was not an "Appellate Body report " 
under Article 17, and therefore it was not subject to the adoption procedures reflected in 
Article  17.14. For this Agenda item, the United States did  not understand any  party to oppose 
adoption of the reports, nor ha d any other WTO Member raised an objection. The aim of the dispute 
settlement system was to find a positive solution to the dispute. As neither party to the dispute ha d 
objected, the United States  underst ood that the parties consider ed that adoption of the reports 
would assist them in finding a positive solution. The United States  would seek to support the parties ' 
interests on this issue. Therefore, there was a consensus to adopt the reports before the DSB at the 
present meeting .  WT/DSB/M/441  
 
- 18 - 
 
  6.8.  The representative of China  said that his country  strongly disagree d with the U S view on the 
adoption of this Appellate Body Report. Article 17.14 of the DSU ma de it crystal clear that : "an 
Appellate Body report shall be adopted by  the DSB and unconditionally accepted by the parties to 
the dispute unless the DSB decides by consensus not to adopt the Appellate Body report within 
30 days following its circulation to the Members ". China w ished  to underline  that the Report before  
the DSB at the present meeting  was an Appellate Body Report, and  that there was no consensus not 
to adopt this report. Therefore, this Appellate Body Report and the Panel Report modified by it had 
to be adopted by negative consensus in accordance with Art icle 17.14 of the DSU. To suggest 
otherwise had no  legal merit.  
6.9.  The representative of the European Union  said that his delegation  wished  to stress that there 
was no doubt that th is Report was a Report of the Appellate Body and that it  would be adopted in 
accordance with the rules applicable for the adoption of Appellate Body Reports under Article 17.14 
of the DSU , i.e., by negative consensus , just as ha d been the case for all other Appellate Body 
Reports.  
6.10.   The DSB took note of the statements and adopt ed the Appellate Body Report contained in 
document WT/DS499/AB/R and Add.1 and the Panel Report contained in document WT/DS499/R 
and Add.1, as modified by the Appellate Body Repor t 
7  UNITED STATES – COUN TERVAILING MEASURES ON SUPE RCALENDERED PAPER FR OM 
CANADA  
A. Report of the Appellate Body (WT/DS505/AB/R and WT/DS505/AB/R/Add.1) and 
Report of the Panel (WT/DS505/R and WT/DS505/R/Add.1)  
7.1.  The Chairman  drew attention to the communication from the Appellate Body contained in 
document W T/DS505/9 transmitting the Appellate Body Report in the dispute: "United States – 
Countervailing Measures on Supercalendered Paper from Canada ", which was circulated on 
6 February 2020 in document WT/DS505/AB/R and Add.1. He remind ed delegations that the 
Appellate Body Report and the Panel Report pertaining to this dispute ha d been circulated as 
unrestricted documents. As Members were aware, Article 17.14 of the DSU require d that: "an 
Appellate Body report shall be adopted by the DSB and unconditionally a ccepted by the parties to 
the dispute unless the DSB decides by consensus not to adopt the Appellate Body report within 
30 days following its circulation to Members. This adoption procedure is without prejudice to the 
right of Members to express their view s on an Appellate Body report ". 
7.2.  The representative of Canada  said that his country  wished  to thank the Appellate Body, the 
Panel and their Secretariats for their hard work, and expressed  appreciation for the contribution of 
the third parties in this case. Canada welcome d the Appellate Body Report , which had upheld the 
Panel 's finding that the US practice of applying adverse facts available in the circumstances at issue 
in this case was inconsistent with the SCM Agreement. Canada was pleased that the Appellate Body 
had found that the US practice constituted a measure , and that it ha d reaffirmed that a broad range 
of "measures " could be challenged under WTO dispute settlement. The Appellate Body and the Panel 
had recognized that the absence of a written measure d id not shield a Member 's conduct from 
scrutiny, nor d id it make it any less inconsiste nt with its WTO obligations. The Appellate Body and 
Panel had found that the United States maintain ed a practice of applying adverse facts available 
when respondents fail ed to disclose information it deemed to be "other forms of assistance " in the 
context of countervailing duty investigations. The United States consistently applie d adverse facts 
available in these circumstances without ascertaining whether that information was actually 
necessary to complete a subsidy determination. This US practice ha d resulted in the United States 
applying artificially inflated countervailing duty rates, including in the investigation into 
supercalendered paper. It remain ed a threat to respondent companies in both current and future US 
subsidy investigations. Canada recogni zed that a separate opinion had been  issued by one member 
of the Division in this case. Canada note d that while separate opinions c ould be warranted under 
certain circumstances in the WTO dispute settlement system, they could  not undermine the 
objectives o f that system, including providing security and predictability to the multilateral trading 
system. Canada expressed  regret that the separate opinion in this appeal d id precisely that by 
ignoring previous Appellate Body findings that were directly relevant without providing adequate 
reasons. Canada observe d that the fact that an Appellate Body Report ha d been circulated after 
90 days d id not modify its character as a valid Appellate Body Report subject to the negative 
consensus rule for its adoption. Canada look ed forward to working with the United States to agree WT/DSB/M/441  
 
- 19 - 
 
  to a reasonable period of time to implement the DSB 's recommendation and rulings. In any event, 
Canada expressed the  hope that the United States w ould implement them as soon as poss ible. 
7.3.  The representative of the United States  said that t he United States ha d serious concerns with 
the documents being considered by Members under this Agenda item. In particular, the document 
circulated as WT/DS505/AB/R heighten ed the concerns that the U nited States ha d been raising about 
the Appellate Body and its effect on the WTO dispute settlement system. As the United States would  
explain in this statement, the document was not a valid Appellate Body report and represent ed the 
latest example of the A ppellate Body 's failure to respect WTO rules. The document circulated by the 
Appellate Body was not a valid Appellate Body report under Article 17 of the DSU.7 The document 
had not been provided and circulated on behalf of three valid Appellate Body member s as required 
by Article 17.1. Extraordinarily, none of the individuals who had served on this appeal – 
Mr. Ujal Bhatia (presiding member), Mr . Thomas Graham, or Ms . Hong Zhao – was a valid member 
of the Appellate Body when the document had been  issued to WTO Members. With respect to the 
first two, this dispute present ed the familiar issue of individuals continuing to serve and decide 
appeals after their term of appointment ha d expired. The US position that this was illegitimate was 
well known.  
7.4.  But the United States would  first discuss service on this appeal by Ms . Zhao. This was an 
unprecedented situation. This individual c ould not be, and was not, a member of the Appellate Body 
because she was not eligible under the DSU. On 31 January 2020, the United States  had informed 
the WTO Director -General and the DSB Chairperson that it had become aware of information that 
indicate d that this individual was not "unaffiliated with any government " as required by Article 17.3 
of the DSU and, therefore, was not a val id member of the Appellate Body. Article 17.3 of the DSU 
provide d that persons comprising the Appellate Body "shall be unaffiliated with any government ". 
To "affiliate " was to "attach to or connect with an organization "8, and an affiliation was a "connecti on, 
association ".9 Ms. Zhao was affiliated with the Government of the People 's Republic of China and 
therefore c ould not serve as a member of the Appellate Body. According to official Chinese 
government documents, Ms. Zhao currently serv es as Vice Presiden t and a "leader " of China 's 
"Ministry of Commerce Academy of International Trade and Economic Cooperation " (MOFCOM -
AITEC). When Ms. Zhao had been  nominated as a candidate for the Appellate Body, her curriculum 
vitae (CV) indicated that she was at that time serving as the "Vice President of the Chinese  Academy 
of International Trade and Economic Cooperation ".10 Ms. Zhao 's CV had not reflect ed the official title 
for this entity: the "Ministry of Commerce  Academy of Inte rnational Trade and Economic 
Cooperation ".11 Although there were different potential translations for the name of this entity12, the 
official title in Chinese include d "Ministry of Commerce ".  
7.5.  The representative of the  United States said that Ms. Zhao had continue d to serve as Vice 
President of the Ministry of Commerce Academy of International Trade and Economic Cooperation.13 
The "leadership " page on the MOFCOM -AITEC website also had identifie d Ms. Zhao among its six 
current leaders.14 This entity was a "public institution " under Chinese law that was affiliated with 
and subordinate to China 's Ministry of Commerce. In the "Notice of the Ministry of Commerce on the 
 
7 Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU).  
8 The New Shorter Oxford English Dictionary (1993) at p . 35 (definition 2: "Adopt as a subordinate member 
of a society, branch of an organization or company, etc.; attach to or connect with an organization etc. "). WTO 
Members in 1995 had considered that, in light of Article 17.3, persons serving on the Appellate Body "should not 
therefore have any attachment to a government that woul d compromise their independence of judgment ". 
Recommendations by the Preparatory Committee for the WTO approved by the Dispute Settlement Body on 
10 February 1995 (WT/DSB/1), para. 7.  
9 The New Shorter Oxford English Dictionary (1993) at p. 35 (definition 2(b)).  
10 JOB/DSB/CV16/3.  
11 See, e.g., MOFCOM -AITEC Website, Profile page, Ms. Zhao 's biography (indicating at the bottom of the 
webpage "All rights reserved: Ministry of Commerce Academy of International Trade and Economic Cooperation ") 
The biographies for  three of the six MOFCOM -AITEC vice presidents refer to the "Ministry of Commerce Academy 
of International Trade and Cooperation ". Two d id not refer to MOFCOM -AITEC. Ms. Zhao 's biography was the 
only one that refers to MOFCOM -AITEC as the "Chinese Academy of International Trade and Economic 
Cooperation ". 
12 See, e.g., Notice of the Ministry of Commerce on the Establishment of Institutions (translating the name 
of this entity as "International Trade and Economic Cooperation Research Institute of the M inistry of Commerce ") 
(emphasis added).  
13 MOFCOM -AITEC Website, Profile page, Ms. Zhao 's biography.  
14 MOFCOM -AITEC Website, Leadership.  WT/DSB/M/441  
 
- 20 - 
 
  Establishment of Institutions "15, China explicitly identifie d MOFCOM -AITEC 's status as a "public 
institution ". Under Chinese law, a "public institution " referred to "public service organizations that 
are established by the state organs or other organizations by using the state -owned assets for the 
purpose of engaging in activitie s of education, science and technology, culture and hygiene ".16 
MOFCOM -AITEC was also an "affiliated " entity "subordinate " to China 's Ministry of Commerce. The 
"Notice of the Ministry of Commerce on the Establishment of Institutions " set out that MOFCOM -
AITEC was a "Public Institution[] Directly under the Ministry of Commerce ".17 MOFCOM 's website 
similarly list ed MOFCOM -AITEC as a "public institution under the Ministry of Commerce ".18 Further, 
Article 3 of the "Regulations on the Personnel Management of Public  Institutions " indicate d that: the 
"competent departments of public institutions [e.g., MOFCOM] shall be specifically responsible for  
the personnel management of their affiliated  public institutions [e.g., MOFCOM -AITEC] ".19 And 
MOFCOM 's 2019 annual budget state d that "[w]ork units under the Ministry of Commerce budget 
include … subordinate  public institutions "20, of which MOFCOM -AITEC was one. MOFCOM -AITEC 's 
budget was also part of MOFCOM 's budget, such that the salary for Ms. Zhao 's Vice President position 
at MOFCOM -AITEC was funded by the Government of the People 's Republic of China.21 For example, 
MOFCOM 's 2019 annual budget state d that "[w]ork units under the Ministry of Commerce budget 
include … subordinate public institutions ".22 The 2019 budget lists 33 constituent "work units " that 
fall under it, including both MOFCOM itself as well as MOFCOM -AITEC.23 MOFCOM 's 2019 budget 
indicate d aggregate expenses for salaries, which would ref lect the amount for all 33 constituent 
"work units ", including MOFCOM -AITEC.24 China 's National Audit Office had carried out in 2016 an 
audit of MOFCOM 's 2015 budget, and this audit indicate d specific amounts from MOFCOM 's budget 
allocated to and expended b y MOFCOM -AITEC for salary expenses.25 None of this information had 
been disclosed to WTO Members when this individual had been  nominated as a candidate for the 
Appellate Body. In sum, Ms.  Zhao was Vice -President of MOFCOM -AITEC, a "public institution " that 
was "affiliated ", "directly under ", and "subordinate " to MOFCOM. Salary expenses of MOFCOM -AITEC 
formed part of MOFCOM 's budget, which mean t the government fund ed Ms. Zhao 's MOFCOM -AITEC 
salary.  Thus, Ms. Zhao was affiliated with the Government of the People 's Republic of China. Because 
Ms. Zhao was not "unaffiliated with any government ", contrary to the requirement of Article 17.3 of 
the DSU, Ms. Zhao was not a valid member of the Appellate Body . This alone render ed the document 
circulated as WT/DS505/AB/R invalid and incapable of being an Appellate Body report because the 
appellate "report " had not been provided and circulated on behalf of three Appellate Body members, 
as required under Article 17.1 of the DSU.  
7.6.  The United States said that the re were, in addition, two further reasons the document was not 
an Appellate Body report within the meaning of Article 17  of the DSU . With respect to Mr. Bhatia 
and Mr. Graham, the terms for these individuals  had expired on 10 December 2019.26 The document 
had been  circulated to WTO Members on 6 February 2020, nearly two months after their terms had 
expired. The DSB had taken no action to permit either individual to continue to serve as an Appellate 
Body member. Therefore, neither individual was an Appellate Body member on the date of circulation 
 
15 Notice of the Ministry of Commerce on the Establishment of Institutions, Section III (listing the "Public 
Institutions Directly Under the Ministry of Commerce "). 
16 Interim Regulation on the Registration of Public Institutions, Article 2.  
17 Notice of the M inistry of Commerce on the Establishment of Institutions, Section III.  
18 MOFCOM Website, Organization.  
19 Regulation on the Personnel Management of Public Institutions, Article 3 (third paragraph) ( emphasis  
added).  
20 MOFCOM 2019 Budget, p. 6.  This was also represented graphically on p. 7.  
21 MOFCOM -AITEC 's status as a public institution that was affiliated with and subordinate to MOFCOM 
demonstrate d that her position as Vice President, and one of six "leaders " of that entity, was not a function 
independent of  the Government of the People 's Republic of China.  See Recommendations by the Preparatory 
Committee for the WTO approved by the Dispute Settlement Body on 10 February 1995 (WT/DSB/1), para. 7 
(expressing a view that "[t]his requirement [of not having an at tachment to a government] would not necessarily 
rule out persons who, although paid by a government, serve in a function rigorously and demonstrably 
independent from that government "). 
22 MOFCOM 2019 Budget, p. 6.  This was also represented graphically on p.  7. 
23 MOFCOM 2019 Budget, p. 7 (listing MOFCOM -AITEC in row 23).  
24 MOFCOM 2019 Budget, p. 17.  
25 Central Department Work Units 2015 Budget Implementation and Other Matters Audit Results (National 
Audit Office, Announcement Number 5 (2016), 29 June 2016), Mi nistry of Commerce 2015 Financial 
Appropriations Budget Implementation Status for Key Audit Work Units, Appendix 2.  
26 Dispute Settlement Body, Minutes of the Meeting Held on 25 November 2015 (WT/DSB/M/370), 
para. 7.3 ("[H]e wished to propose that the DSB agree, at the present meeting, to reappoint Mr. Ujal Singh 
Bhatia and Mr. Thomas Graham for a four -year term, respectively, starting on 11 December 2015 ") and para.  7.4 
(The DSB so agreed "). WT/DSB/M/441  
 
- 21 - 
 
  of this document. The document was also not a valid Appellate Body report because it had not been 
issued within 90 days, consistent with Article 17 of the DSU. The mandatory language in Article 17.5 
of the DSU state d that  "in no case shall the proceeding s exceed 90 days ". And that provision 
specifically state d that "the proceedings " encompass "the date the Appellate Body circulates its 
report ". In fact, 528 days had passed between the date of the Notice of Appeal in this dispute 
(27 August 2018) and circu lation of the document as a purported Appellate Body report 
(6 February  2020). Any one of these three reasons would suffice to prevent this document from 
serving as an Appellate Body report. But the concerns raised by the service of Ms. Zhao were 
compounde d when Members consider the substance of this appeal.  
7.7.  The United States said that Members may recall that one appeal in this dispute had involved 
an alleged unwritten measure that was considered "ongoing conduct ". The evidence that allegedly 
demonstrated the existence of that "ongoing conduct " measure consisted of actions by the US 
Department of Commerce in nine investigations. One of those involved Canada, and the 
countervailing duty had been  terminated in the course of this proceeding. Another investigat ion had 
involved India. And seven  of the nine investigations had involved subsidies provided by China. Thus, 
this individual, affiliated with the Government of China, had participated in an appeal in which the 
conduct complained about related almost exclusively to China. And so, besides the invalidity of this 
individual to serve on the Appellate Body, their participation in this particular appeal was impossible 
to see as im partial.  
7.8.  The United States ha d serious substantive concerns about the appellate document as well. But 
given the invalidity of this individual to serve on the Appellate Body, it was not necessary to consider 
that document further. There was no Appellate Bo dy report before the DSB at the present meeting , 
and the United States object ed to the adoption of this document. As discussed, the document ha d 
not been issued by three Appellate Body members and had not been issued within 90 days, 
consistent with the req uirements of Article 17 of the DSU, it was not an "Appellate Body report " 
under Article 17, and therefore it was not subject to the adoption procedures reflected in 
Article  17.14. Rather, the DSB could  consider its adoption subject to the positive consensu s rule that 
govern ed DSB decisions, pursuant to Article 2.4 of the DSU and Article IX:1, note 3  of the WTO 
Agreement . In light of the significant procedural and substantive concerns with the document, as 
discussed in this statement, the United States objec ted to its adoption. The United States d id not 
consider it appropriate to proceed with adoption of the appellate report in light of this extraordinary 
and unprecedented situation. Under the circumstances, it would be appropriate to suspend 
consideration of  this Agenda  item to allow the parties to consult on a path forward.  
7.9.  The representative of Canada  said that i n this particular dispute, his country  noted that the 
three Appellate Body members who had signed the report had done  so within their term, on 
10 December 2019. There c ould be no doubt that this Appellate Body Report was a valid Appellate 
Body Report, subject to the negative consensus rule for its adoption. Canada note d that Appellate 
Body member Zhao ha d been in her position for some time. Allegations of lack of independence were 
serious and deserve d full and impartial consideration. The Rules of Conduct adopted by the Members 
address ed squarely such a situation and those rules were clear. The rules provi ded that where a n 
Appellate Body member  was the subject of an allegation, the Appellate Body shall take any 
appropriate action after having provided a reasonable opportunity for the views of the person 
concerned and the parties to the dispute to be heard. Canada support ed this approach. Canada 
looked forward to having the full Appellate Body address the question once it regain ed quorum. With 
respect to the Appellate Body Report before the DSB , it remain ed subject to the negative consensus 
rule for its adopt ion. Accordingly, the DSB had to  adopt this Report in accordance with Article 17 .14 
of the DSU. With respect to the notion of suspending the adoption of this Appellate Body Report until 
the allegations were further investigated, Canada note d that Article 1 7.14 was clear that an Appellate 
Body Report shall be adopted by the DSB unless the DSB decide d by consensus not to adopt the 
Appellate Body Report within 30 days following its circulation. The fact that the situation described 
in Article 17.14 exist ed wa s not disputed. That is: the Report of the Appellate Body in the dispute at 
issue ha d been circulated. In addition, Canada had specifically requested that the Panel and Appellate 
Body Reports in this dispute be added to the Agenda of the 28 February  2020 DSB meeting.  A 
suspension of the DSB's consideration of the Appellate Body Report  was not the appropriate 
mechanism to address the situation. The appropriate mechanism under the Rules of Conduct of the 
DSU was for the U nited States to refer these allegatio ns to the Appellate Body. The task before the 
DSB was to consider the Reports for adoption according to the reverse consensus rule. Canada would 
have welcomed the adoption of the Panel Report in this dispute at the time that the report  had been  
issued. It was the United States that had appealed the panel report. It would be utterly unfair if , by WT/DSB/M/441  
 
- 22 - 
 
  seeking to delay the adoption of an Appellate Body Report regarding its own appeal, the United 
States prevent ed the adoption of recommendations by the DSB in this d ispute.  
7.10.   The representative of China  said that at the present meeting,  the DSB was to adopt the 
Appellate Body Report in this dispute  by negative consensus. China expressed  surprise that, to re ject 
the legal effect of this unfavourable report, the United S tates had chosen to question the 
independence of one Appellate Body member. China was stunned by  such radical and irresponsible 
behavio ur. China  firmly oppose d the groundless US accusations. First, Dr. Z hao's occupation with 
the Chinese Academy of International Trade and Economic Cooperation (CAITEC) d id not jeopardize 
her independence as an Appellate Body member. CAITEC had been  registered as an independent 
legal entity under Chinese law since 1997. Like hospitals, universities and many other research 
institutes in China, CAITEC was a Category II social institution which was partially funded by the 
government. However, its main revenue was derive d from providing consultation services. China 
wished to note that there were universi ties, think tanks and research institutes partially or wholly 
funded by the government in many WTO Members and all over the world. The funding structure of 
an institution by itself d id not necessarily compromise the independence of its staff.  
7.11.   Second, Dr. Zhao's appointment and her service within the Appellate Body were in full 
compliance with the relevant rules under  the DSU. Dr. Z hao had never misrepresented or concealed 
her previous and current occupations. While participating in the selection process, s he had fully 
disclosed her employment history in her curriculum vitae , which had been  circulated to all WTO 
Members. Her biography was publicly available on the official website of the WTO from the very 
beginning. More importantly, Dr. Z hao had gone  throug h the selection proce ss having been 
scrutinized by the entire  Membership and had been appointed unanimously as an Appellate Body 
member by the DSB in 2016. All Members , including the United States , had agreed. No Member ha d 
ever questioned her independence  and impartiality, either in the selection process or during her 
service as an Appellate Body member. She ha d been and still was in full compliance with Article 17.3 
of the DSU which require d that Appellate Body members  be unaffiliated with any government.  
7.12.   Third, the improper  US accusation would cause irreparable damage to the WTO dispute 
settlement system and the multilateral trading system. It was worth noting that this dispute  was 
not the only one in which Dr. Z hao ha d participated  as a division member. In particular, she had 
also served as a member of  the AB division in the "US – Tuna II (Mexico) " compliance dispute 
(DS381) . In contrast to what the United States ha d stated at the present meeting , it had welcomed 
the A ppellate Body 's rulings in  the "US – Tuna II (Mexico) " compliance dispute (DS381)  and had not 
raised any concern regarding  the independence of Dr. Z hao. While the independence of Dr. Z hao 
had remain ed unchanged , the interests of the United States in relation to these two appellate rulings  
differed . This double -standard clearly reveal ed the true intention of the United States , which was to 
further its own interests through whatever means  at its disposal . The reckless behavio ur of the 
United States wa s not guided by  good faith and ha d caused damage. Moreover, it had undermined 
the independence and authority of the Appellate Body and had compromised the rules -based 
multilateral trading system.  
7.13.   China said that i t was normal for Members to win and lose d isputes at the WTO. Members 
were entitled to express their views on an Appellate Body Report in accordance with Article 17.14 of 
the DSU. Questioning the independence of an Appellate Body member was fundamentally different. 
The US  accusation would have a destructive impact on the legitimacy and effectiveness of the dispute 
settlement system which was a cornerstone of the multilateral trading system. China  strongly urge d 
the United States to cease behavi ng dangerous ly. Members expect ed more positive contribu tions 
from the United States to safeguard and further strengthen the rules -based multilateral trading 
system. Finally, China wished to underline  that the report before  the DSB at the present meeting  
was an Appellate Body Report, and there was no consensus not to adopt this Report. Therefore, this 
Appellate Body Report and the Panel Report modified by it had to  be adopted by negative consensus 
in accordance with Article 17.14 of the DSU. To suggest otherwise ha d no legal merit.  
7.14.   The representative of Japan  said that his country  did not take a position on the facts of this 
case and the propriety of the legal concl usions reached by the Panel and the Appellate Body in their 
respective Reports. Japan w ished  to offer brief observation s on one particular issue raised in this 
dispute, i.e. , the issue of "ongoing conduct ". As a general matter, Japan  agree d with the Appell ate 
Body's finding that "a broad range of measures can be challenged in WTO dispute settlement " and 
that elements to demonstrate the existence of a challenged measure "depend[] on the particular 
characteristics or nature of the measure being challenged ". As the Appellate Body had observed in WT/DSB/M/441  
 
- 23 - 
 
  the past, "how [ a specific measure at issue] is described, characterized, and challenged by a 
complainant, will inform the kind of evidence a complainant is required to submit and the elements 
that it must prove in orde r to establish the existence of the measure challenged ". However, it should 
be noted that "ongoing conduct " was an analytical concept, rather than a treaty term, to specifically 
describe the measure at issue on a case-by-case basis. To challenge a measure in WTO dispute 
settlement, the complaining party had to  identify the precise content of the measure. In this regard, 
for example, the existence of a challenged measure c ould not be demonstrated only by selectively 
picking common elements or features in a s eries of regulatory actions, as the precise content of 
alleged "ongoing conduct ". At a minimum, there ha d to be a certain analytical correlation between 
the level of "preciseness " of the identified content of the alleged "ongoing conduct " and the degree 
of scrutiny required to determine the WTO -consistency of such alleged ongoing conduct. Thus , the 
less precise the identified content would be, the more robust the scrutiny of WTO -consistency should 
be. Such scrutiny could  require a close ex amination of how the alleged "ongoing conduct " actually 
operate d and in what circumstances , and also of how the different elements of regulatory actions , 
which allegedly contain ed the "ongoing conduct " interact ed with each other within a specific context. 
Finally, Japan t ook note of the statement made by the United States regarding Article 17.3 of the 
DSU. At this point in time, Japan was not in a position to make any judgement as to the issue raised 
by the United States. Japan w ould carefully review the st atements by the United States and others. 
The United States had raised a systemic issue of an extremely serious nature, which could  call into 
question the very integrity and impartiality of the dispute settlement system . As such, this issue 
warranted  serious attention from WTO Members.  
7.15.   The representative of the European Union  said that his delegation wished to underline  that 
there was no doubt that the Report before the DSB at the present meeting was a Report of the 
Appellate Body and that it would be adopted in accordance with the rules applicable for the adoption 
of Appellate Body Reports under Article 17.14 of the DSU , i.e., by negative consensus , as had been 
the case for all other Appellate Body Reports. The European Union wished to recall that the rules 
and procedures of the DSU exclude d the right of any particular WTO Member to block the adoption 
of Panel or Appellate Body Reports. This was a central feature of the DSU and a major difference 
with the  dispute settlement mechanism  operated under the GA TT 1947. Article 17.14 of the DSU 
was clear: "[a]n Appellate Body report shall be adopted by the DSB and unconditionally accepted by 
the parties to the dispu te unless the DSB decides by consensus not to ad opt the Appellate Body 
repor t". The EU wishe d to emphasize that it w ould not be the case at the present meeting  that "the 
DSB decide s by consensus not to adopt " the Reports. Therefore , both the Panel and the Appellate 
Body Reports w ould be "adopted by the DSB " within the meaning of Articles 16.4 and 17.14 of the 
DSU. The E U recognize d that these provisions were without prejudice to the right of Members to 
express their views on the Reports, and such views ha d been expressed at th e present  meeting. 
Howev er, while there was a right to express a view, there was no right to veto. Any theor y attempting 
to underpin such a right to veto was without merit. This include d any issues raised under the Code 
of Conduct. The EU also wishe d to point out that the Rules o f Conduct provide d for a procedure to 
be followed by disputing parties if they ha d evidence of a material violation of the obligations of 
independence, impartiality or confidentiality or of the avoidance of direct or indirect conflicts of 
interest by cover ed persons which could  impair the integrity, impartiality or confidentiality of the 
dispute settlement mechanism. If this occur red, the parties had to  submit such evidence , at the 
earliest possible time and on a confidential basis, to the standing Appellate Body. Other Members 
who possess ed or came into possession of such evidence, could  provide such evidence to the 
disputing parties in the interest of maintaining the integrity and impartiality of the dispute settlement 
mechanism. It was for the sta nding Appellate Body to take any appropriate action after having 
provided a reasonable opportunity for the views of the person concerned and the disputing parties 
to be heard.  The EU was not aware of whether such procedure ha d been followed in this instanc e. 
Therefore, under the applicable rules, the EU s aw no reason to question the validity of the Appellate 
Body Report for the purposes of the adoption procedure under Article 16.4 and Article 17.14 of the 
DSU. 
7.16.   The representative of the United States  said th at the United States  had listen ed to the 
statements made by other Members  very closely . At the outset, the United States  did not believe 
that the Code of Conduct was applicable to this situation. Article 17.3 of the DSU wa s very clear: 
Appellate Body membe rs had to  be unaffiliated with any government.  Having  listened to the 
statement from the representative of China , the representative of the United States stated  that 
China d id not appear to directly contest the substance of the US statement. China had not den ied 
the following: Ms.  Zhao serve s as Vice President of MOFCOM -AITEC ; Ms. Zhao receive s or ha d 
received a salary for her position of Vice President ; MOFCOM -AITEC is an "affiliated " entity WT/DSB/M/441  
 
- 24 - 
 
  "subordinate " to MOFCOM ; MOFCOM -AITEC 's budget is part of MOF COM's budget, such that the 
salary for Ms.  Zhao's Vice President position at MOFCOM -AITEC was funded by the Government of 
the People 's Republic of China . If China had considered these statements incorrect, the United States  
would have expect ed them to have  stated so explicitly.  The fact that they did not would seem to 
confirm that Ms. Zhao is affiliated with the Government of China. China claim ed that MOFCOM -AITEC 
was an "independent legal entity ". This assertion d id not address – much  less contest –evidenc e 
demonstrating that MOFCOM -AITEC was an "affiliated " public institution under Chinese law 
"subordinate " to MOFCOM. China explicitly identifie d MOFCOM -AITEC 's status as a "public 
institution ". Under Chinese law, a "public institution " referred to "public service organizations that 
are established by the state organs or other organizations by using the state -owned assets for the 
purpose of engaging in activities of education, science and technology, culture and hygiene ". Further, 
the "Notice of the M inistry of Commerce on the Establishment of Institutions " set out that MOFCOM -
AITEC was a "Public Institution[] Directly under the Ministry of Commerce ". MOFCOM 's website 
similarly list ed MOFCOM -AITEC as a "public institution under the Ministry of Commerce ". At the 
present meeting, China ha d confirmed that MOFCOM -AITEC was funded, at least in part, by the 
Chinese government. And, as discussed, official Chinese documents indicate d that salaries for 
MOFCOM -AITEC personnel were part of MOFCOM 's budget. China 's attempt to analogize MOFCOM -
AITEC to entities in other WTO Members was not compelling and, ultimately, irrelevant to the 
question of whether Ms. Zhao was affiliated with the Government of China. Moreover, had Ms. Zhao 's 
affiliation with the Government of China been properly disclosed, it would have been for WTO 
Members to decide whether they considered the circumstances analogous to what they may exist  in 
their domestic systems. The lack of transparency and disclosure had deprived WTO Members of this 
oppor tunity and of making an informed decision on whether to appoint Ms. Zhao to the Appellate 
Body.  
7.17.   The United States expressed regret that Canada ha d not agreed to suspend the consideration 
of this Agenda item. The United States  had focused its statement on t he document circulated as 
WT/DS505/AB/R because of the extraordinary situation that render ed that document invalid. The 
United States reiterate d that it  would not join a consensus to adopt that document. This Agenda 
item also concern ed the report of the panel in this dispute. The duties at issue in this dispute had 
been terminated in July 2018. Therefore, the United States had not appeal ed the many legal findin gs 
of the panel with which the United States strenuously disagreed because reversal of those findings 
was not necessary to resolve the dispute. As the United States had appealed certain legal findings 
of the panel, and the appeal ha d not been completed wit h the issuance of a valid Appellate Body 
report, the panel report c ould not be considered for adoption by the DSB by negative consensus 
under Article 16.4 of the DSU. However, under the circumstances of this dispute, where the duties 
at issue had already been terminated in July 2018, the United States was willing to permit adoption 
by positive consensus of the legal findings of the panel that had not been appealed; specifically, 
paragraphs 8.1, 8.2, and 8.3 of the panel report. The United States was  willing  to take this step to 
permit adoption of unappea led panel findings in the spirit of compromise and because neither party 
should be prejudiced by the service on this appeal of an individual with no right to serve, and the 
issuance of a document on appeal wi th no validity.  
7.18.   The representative of China  said that his country believed that the United States had had the  
wrong impression that China did not contest the substance of its accusation. However, China had 
rebut ted each and every allegation made by the United States. China wished to  emphasize again 
that CAITEC was an independent legal entity under Chinese law since 1997. There were many 
universities, think tanks  and research institutes, partially or wholly funded by the government , in 
many WTO Members  and all over the world . The funding structure of an institution by no means 
compromise d the independence of its st aff. Over more than three years, Dr. ZHAO , as an Appellate 
Body member , had diligently served in this important adjudicatory body in full complian ce with the 
requirements of the DSU and its Rules of Conduct. In particular, Dr. ZHAO ha d fully disclosed her 
previous and current occupations outside the WTO and ha d taken due care in performing her dut ies 
in order to fulfil the expectations of WTO Members. Her independence, impartiality and profe ssional 
ethics were widely recognized by Members and should be beyond  question ing. Once again, China 
believed that  this Report was an Appellate Body Report under Article 17.14 of the DSU and that it 
should be adopt ed in accordance with the negative consens us rule.  
7.19.   The representative of Canada  said that his country  agree d with the United States that these 
types of allegations were indeed very serious , but they  require d full and impartial consideration in a 
manner that provide d due process for all parties. Th e discussion  at the present meeting  failed that 
test. There was a process for dealing with this as Canada had  set out in its previous statement under WT/DSB/M/441  
 
- 25 - 
 
  this Agenda item . In accordance with Article 2.1  of the DSU, it was the DSB's responsibility to 
administer the rules and procedures  of the DSU, including the adoption of Appellate Body Reports 
as set out in Article 17.14  of the DSU. 
7.20.   The DSB took note of the statements and adopt ed the Appellate Body Report contained in 
WT/DS505/AB/R and Add.1 and the Panel Report contained in WT/DS505/R and Add.1, as upheld 
by the Appellate Body Report.  
7.21.   The representative of the United States  said that t he United States ha d described serious 
procedural and substantive concerns with the document circulated as WT/DS505/A B/R. The United 
States  had explained how the document c ould not be an Appellate Body report because of ex -
Appellate Body members ' continuation of service without authorization by the DSB, and the failure 
to adhere to the deadline in Article 17.5  of the DSU . Most importantly, the United States ha d 
explained in detail that an individual who had served on this appeal was not a valid member of the 
Appellate Body given that they were affiliated with a government in breach of Article 17.3  of the 
DSU. And even beyond that, the appeal had directly implicated the interests of that Government. 
Accordingly, the United States reiterate d its view that the document before the DSB at the present 
meeting  was not a valid Appellate Body report, object ed to adopt ion of the document, and d id not 
join a consensus to adopt it. Any assertion that the WTO ha d adopted an appellate report at the 
present meeting under these extraordinary and illegal circumstances would only damage the 
credibility of the WTO and its disput e settlement system. To reiterate, and in the spirit of 
compromise, the United States would only have joined a positive consensus to adopt those aspects 
of the panel report that had not been appealed.  
7.22.   The representative of the European Union  said that i rrespective of how Members assess ed the 
content of the Reports or the procedures that had given  rise to them, the WTO dispute settlement 
system was mandatory and binding. Pursuant to Article 17.14 of the DSU , Appellate Body Reports 
were adopted by the DSB and  unconditionally accepted by the parties. The only circumstance in 
which this d id not occur was if the DSB decide d by consensus not to adopt the Appellate Body report 
within 30 days following its circulation to the Members. The European Union and Canada had not 
joined such a consensus at the present meeting . Consequently, the Appellate Body Report (including 
the Panel Report as modified by the Appellate Body Report) ha d been adopted by the DSB and 
unconditionally accepted by the parties by "operation of law  (ipso jure )" (Appellate Body Report, 
Continued Suspension, paras. 310, 355 and 367), or "automatically " (Appellate Body Report, US -
LCA, paras. 524, 531, 532 and 549). Neither the defendant, nor any other WTO Member, nor the 
Chairman of the DSB, nor the WTO Secretariat ha d the legal authority to prevent this from happening 
by any means. Whatever they sa id or did and whatever was recorded in the minutes of the DSB was 
incapable as a matter of law of negating the observation that what was provided for in Article 17.14 
of the DSU ha d occurred. Subsequent adjudicators in the same dispute, including compliance and  
arbitration panels, w ould therefore proceed on the basis that the Appellate Body Report ha d been 
adopted and unconditionally accepted by the parties and would address the question of compliance 
or quantify nullification or impairment accordingly. They w ould reject any attempt by a defendant to 
frustrate their work on the procedural grounds that, at the relevant DSB meeting, the defendant (or 
any other Member) had purported to "block" the adoption of the Appellate Body Report.  
7.23.   The DSB took note of the state ments . WT/DSB/M/441  
 
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  8  APPELLATE BODY APPOI NTMENTS: PROPOSAL BY  AFGHANISTAN; ANGOLA;  
ARGENTINA; AUSTRALIA ; BENIN; PLURINATION AL STATE OF BOLIVIA;  BOTSWANA; 
BRAZIL; BURKINA FASO ; BURUNDI; CABO VERD E; CAMEROON; CANADA;  CENTRAL 
AFRICAN REPUBLIC; CH AD; CHILE; CHINA; CO LOMBIA;  CONGO; COSTA RICA; CÔTE 
D'IVOIRE; CUBA; DEMO CRATIC REPUBLIC OF C ONGO; DJIBOUTI; DOMI NICAN REPUBLIC; 
ECUADOR; EGYPT; EL S ALVADOR; ESWATINI; T HE EUROPEAN UNION; G ABON; THE 
GAMBIA; GHANA; GUATE MALA; GUINEA; GUINEA -BISSAU; HONDURAS; H ONG KONG, 
CHINA; ICELAND;  INDIA; INDONESIA; I SRAEL; KAZAKHSTAN; K ENYA; REPUBLIC OF 
KOREA; LESOTHO; LIEC HTENSTEIN; MADAGASCA R; MALAWI; MALAYSIA;  MALDIVES; 
MALI; MAURITANIA; MA URITIUS; MEXICO; REP UBLIC OF MOLDOVA; MO ROCCO; 
MOZAMBIQUE; NAMIBIA;  NEPAL; NEW ZEALAND;  NICARAGUA; NIGER; N IGERIA; NORTH 
MACEDONIA; NORWAY; P AKISTAN; PANAMA; PAR AGUAY; PERU; QATAR; RUSSIAN 
FEDERATION; RWANDA; SENEGAL; SEYCHELLES;  SIERRA LEONE; SINGA PORE; SOUTH 
AFRICA; SWITZERLAND;  THE SEPARATE CUSTOM S TERRITORY OF TAIWA N, PENGHU, 
KINMEN AND MATSU; TA NZANIA; THA ILAND; TOGO; TUNISIA ; TURKEY; UGANDA; 
UKRAINE; UNITED KING DOM; URUGUAY; THE BO LIVARIAN REPUBLIC OF  VENEZUELA; 
VIET NAM; ZAMBIA AND  ZIMBABWE (WT/DSB/W/609/REV.1 7) 
8.1.  The Chairman  said that t his item was on the Agenda of the present meeting at the request of 
Mexico, on behalf of a number of delegations. He drew attention to the proposal contained in 
document WT/DSB/W/609/Rev.1 7 and invite d the representative of Mexico to speak . 
8.2.  The representative of Mexico , speaking on behalf of the c o-sponsors of the joint proposal 
contained  in document  WT/DSB/W/609/Rev.1 7, said that the delegations in question had agreed to 
submit the joint proposal , dated  17 February 2020 , to launch the AB selection processes . Her 
delegation , on behalf of these 120 Members,  plus Bangladesh who ha d expressed its intention of 
joining as a  co-sponsor to this proposal, wished to make the following  statement.  The extensive 
number of Members submitting this joint proposal  reflect ed a common concern with the current 
situation  of the Appellate Body that was seriously affecting its workings and the overall dispute 
settlement system against the best interest of WTO Members . Members had a responsibility to 
safeguard and preserve the Appellate Body, the di spute settlement  system  and the multilateral 
trading system . Thus, it was the Members' duty to launch the AB selection processes  without further 
delay as set out in the joint proposal , which  sought  to: (i) start six selection processes: one process 
to replace Mr. Ricardo Ramírez -Hernández, whose second term had expired on 30 June 2017; a 
second process to fill the vacancy occurred with the resignation of Mr. Hyun Chong Kim with effect 
from 1  August 2017; a t hird process to replace Mr. Peter Van den Bossche, whose second term had 
expired on 11 December 2017; a fourth process to replace Mr. Shree Baboo Chekitan Servansing, 
whose four -year term of office had expired on 30 September 2018; a fifth process to repla ce 
Mr. Ujal Singh Bhatia, whose second term had expired on 10 December 2019; and a sixth process 
to replace Mr. Thomas R. Graham whose second term had expired on 10 December 2019;  (ii) to 
establish a Selection Committee; (iii) to set a deadline of 30 days for the submission of candidacies; 
and (iv) to request that the Selection Committee issue its recommendation within 60 days after the 
deadline for nominations of candidates . The proponents were flexible regarding the  deadlines for the 
AB selection processe s. However, they believed that Members should consider the urgency of the 
situation. They continued to urge all Members to support this proposal in the interest of the 
multilateral trading system and the dispute settlement system .  
8.3.  The representative of th e European Union  said that his delegation wished to refer to statements 
made on this issue at previous  DSB meetings starting in February 2017 , and to its statement s made 
in the General Council meetings, including  at the  9 December 2019  GC meeting . From 
11 December  2019 onward , the WTO no longer guarantee d access to a binding, two-tier, 
independent and impartial resolution of trade disputes . This was in clear breach of the WTO 
Agreements.  As the EU had stated many times, WTO Members ha d a shared responsibility to resolve 
this matter  as soon as possible, and to fill the outstanding vacancies as required by Article 17.2 of 
the DSU.  The EU wished to thank all Members that ha d co-sponsored the proposal to launch the AB 
selection processes  and invite d all other Members to endorse this proposal . 
8.4.  The representative of Bangladesh  said that his delegation wished to thank Mexico and other 
co-sponsors for the proposal to launch the AB selection processes contained in  document 
WT/DSB/W/609/Rev.1 7. Bangladesh expressed its intention to join the co-sponsor s of this  proposal . 
Dispute settlement was one of the core pillars of  the multilateral trading system  and without the 
Appellate Body  it was incomplete. Bangladesh since rely hope d that with support from Members, the WT/DSB/M/441  
 
- 27 - 
 
  DSB w ould be able to take a decision  and establish a selection committee, as proposed by the co -
sponsors , to carry out  the AB selection processes . Bangladesh st ood ready to engage constructively 
with Members o n this matter.  
8.5.  The representative of El Salvador , speaking o n behalf of the Group of Latin American and 
Caribbean countries (GRULAC) that were Member s of the WTO , said that the countries in question 
wished to express their concerns over  the current AB impasse . The Appellate Body  was a 
fundamental  pillar of the WTO  and of the multilateral trading system . Since the moment when  this 
matter  was first raised,  the majority of WTO Members , including  GRULAC Members,  had contributed 
in a constructive fashion to seeking a solution which would enable Members  to launch  the AB 
selection process es. However, the AB impasse persisted . Members of the GRULAC that were WTO 
Member s would  continue to work constructively and reiterate d their full support to the DSB Chairman 
and his successor , as well as to the D irector -General  in the process  that he had recently initiated . 
They hoped that a solution could soon be found . El Salvador  support ed the statement made  by 
Mexico under this Agenda item .  
8.6.  The representative of Thailand  said that his country  wished to refer to its statement made at 
the 27 January 2020  DSB meeting. As a co -sponsor, Thailand support ed the proposal to launch the 
AB selection processes . The two -tier, binding WTO dispute settlement  system  was one of the core 
elements of the WTO. The current inability of the Appellate Body to function affect ed the ability of 
Members to secure a positive solution to disputes. As one of the Members with both pending appeals 
and a pending panel proceeding, both as complainant and defendant, Thailand 's rights under the 
DSU were at risk . Thailand had  already felt the impacts that were being generated as a result of this 
impasse. The longer the impasse last ed, the greater  would be  the risks to the multilateral trading 
system and to the interests of Members such as Thailand. This uncertainty in dispute settlement 
undermine d the security and predictability of the multilateral trading system. Thailand  strongly 
encourage d all Members involved to increase  their efforts toward s finding a permanent solution  to 
this impasse . 
8.7.  The representative of Singapore  said that Singapor e wished to refer to its statements made at 
previous DSB meetings and to reiterate its strong systemic interest in the maintenance of the two -
tier, binding WTO dispute settlement mechanism that was underpinned by negative consensus. The 
unblocking of the AB selection process es had to  remain the paramount priority for all Members. 
Singapore  urged all Members, including the United States, to constructively engage in finding 
concrete solutions. Singapore  also wish ed to welcome Bangladesh as a co-sponsor  of the proposal 
contained in  document WT/DSB/W/609/Rev.1 7.  
8.8.  The representative of Canada  said that his country  support ed the statement made by Mexico  
and share d the concerns expressed by other Members under this Agenda item . Canada  invite d WTO 
Members that ha d not  yet sponsored the proposal contained in  document WT/DSB/W/609/Rev.1 7 
to consider joining the 120 Members that called for the launch of the AB selection process es. The 
critical mass of WTO Members that supported  this proposal was a clear testimony to the importance 
that Members  accord ed to a fully functioning Appellate Body as an integral part of the dispute 
settlement system. Therefore , Canada  called on the United States to act in accordance with Article 
17.2 of  the DSU and unblock the AB selection  process es. The fact that the Appellate Body c ould not 
hear new appeals was of great concern. Canada wished to reiterate that it was fully committed to 
discussions on matters related to the functioning of the Appellate Body. Canada's  priority remain ed 
to find a lasting multilateral resolution to the impasse that cover ed all Members, including the United 
States. To that effect, Canada  called on the United States to engage, constructively, in solution -
based discussions. In  the meantime, Canada w ould continue its work on a multi -party interim 
appeal -arbitration arrangement as a contingency measure.  
8.9.  The representative of Brazil  said that his country wished to  refer to its statement s made at 
previous DSB meetings under this Agenda item. Brazil wished to thank Mexico for its presentation 
of the proposal contained in  document WT/DSB/W/609/Rev.1 7 on behalf of its co-sponsors . Brazil 
welcome d Bangladesh to the group  of co-sponsors  of this proposal . Agenda item 10 was a concrete 
example of how the current situation was affecting the proper balance between the rights and 
obligation s of WTO Members. Similar instance s could  be expected to occur. Brazil was prepared to 
engage meaningfully with all Members in order to reach a multilatera l long -term solution to this 
impasse .  WT/DSB/M/441  
 
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  8.10.   The representative of Hong Kong, China  said that his delegation wished  to thank Mexico for 
its statement made on behalf of the co -sponsors  of the proposal contained in  document 
WT/DSB/W/609/Rev.1 7. As s tated at previous DSB meetings, Hong Kong, China was concerned that 
there was still no sign of progress toward  resolving the AB impasse. An impartial appeal stage  was 
an essential element of the dispute settlement  system that safeguard ed the multilateral trading 
system in the Members' fundamental interest. The A ppellate Body should be restored as soon as 
possible  to allow Members to a vail themselves of  an independent , two-stage  adjudication. Hong 
Kong, China  urged Members to continue with the ir efforts and constructive engagement until a 
solution was found.  
8.11.   The representative of Nigeria , speaking on behalf of the African Group , wished to  thank Mexico 
for its statement made at the present meeting . The African Group expressed regret that to date , the 
DSB ha d failed to perform its function as stipulated under Article 17.2 of the DSU which clearly 
stated that: "[v]acancies shall be filled as they arise ". The African Group  recognize d the fact that 
the WTO dispute settlement  system was a central element in providing security and predictability to 
the multilateral trading system. Therefore, they underscore d the importance of ensur ing the effective 
functioning of the dispute settlement  system. All  Members recognize d its importance, and this was 
evidenced  by the undertaking under the DSU. She wished to reaffirm the African Group 's proposal s 
on DSU reform, which s ought  to address structural differences within  the dispute settlement  system 
with the aim of facilitat ing the participation by African countries  in the dispute settlement  system. 
Therefore , the African Group  wished to underscore the need for any reform to incorporate the 
developmental nee ds of developing countries  in line with the Doha Development Agenda in order to 
address the capacity and access  challenges faced by the African countries. However, they 
emphasize d that the African Group's priority was to resolve  the impasse . The African Group  urged 
the DSB to urgen tly adopt a Decision to commence the AB selection process es regarding the six 
vacant Appellate Body member positions. To sum up , the African Group  urged the DSB to fulfil its 
obligation under the DSU which was to fill the AB vacancies as they ar ose so as to ensure that the 
Appellate Body and the dispute settlement  system d id not collapse. The African Group  remain ed 
concerned that this impasse could  result  in undesirable consequences for all within the multilateral 
trading system . 
8.12.   The representative of New Zealand  said that his country  wished to reiterate its support for 
the co -sponsored proposal  contained in  document WT/DSB/W/609/Rev.1 7 and to refer to its 
statements  made at previous  DSB meetings under this Agenda item . New Zealand expressed  deep 
disappoint ment that the Appellate Body remain ed unable to perform its important functions and 
continue d to urge al l Members to engage on th is matter  with a view to urgently addressing the 
situation.  
8.13.   The representative of Norway  said that s adly, the situation remained  the same. The Appellate 
Body ha d been intentionally demolished.  However,  the Membership 's response ha d been remarkably 
constructive. Throughout Norway's statements made at previous DSB meetings under this Agenda 
item, as was the case  with the statements made by  many other delegations , the consistent message 
was Members'  readiness  to discuss and find solutions . Members ha d even drafted a General Council 
decision – facilitated by Ambassador  Walker as Facilitator  of an informal process of focused 
discussions on AB matters  – based on their perce ptions of  US arguments. Norway wished to  refer to 
its statements made at previous DSB meetings under this Agenda item.  Norway  hoped that reason 
and diplomatic discussions  in good faith w ould ultimately  prevail.  
8.14.   The representative of Australia  said that her country wished to  refer to its statemen ts made 
at previous  DSB meetings under this Agenda item . Australia  stood ready to engage in constructive 
dialogue with Members to reach a shared understanding of the concerns that ha d been raised and 
to agree pragmatic solutions in the interests of all Mem bers. Ensuring an effective, multilateral, 
dispute settlement system in the WTO remain ed a core priority for Australia. Australia  urged all 
Members to work constructively and demonstrate flexibility in order to find a path forward.  
8.15.   The representative of the United Kingdom  said that her country was  a strong supporter of the 
WTO dispute settlement system as a central pillar of the rules -based multilateral trading system. An 
effective and binding dispute settlement system ensure d that the rules  that Members had  negotiated 
were enforceable, preserving the rights and obligations of Members. The United Kingdom support ed 
a system which was compul sory, binding, impartial, and with two -tier adjudication, as the best 
means of ensuring the fair resolution of disagreements and of preventing recourse to unilateral 
measures. This was to the benefit of the global economy. The United Kingdom  was greatly co ncerned WT/DSB/M/441  
 
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  that the WTO Membership still ha d not been able to launch the AB selection process es, with the 
result that the Appellate Body was unable to hear appeals. The United Kingdom therefore continue d 
and confirm ed its support for th e proposal contained in  document WT/DSB/W/609/Rev.1 7 to launch 
the AB selection process es. The United Kingdom  also support ed the statement made by Mexico  on 
behalf of all co -sponsors. The United Kingdom was committed to finding an urgent resolution to the 
AB impasse , which carrie d the support of all WTO Members. The United Kingdom  underst ood the 
long-standing concerns that ha d been raised and support ed further urgent discussions to find 
common ground , including on possible reforms to the system. The United Kingdom  recogni zed that 
in a consensus -based Organization like the WTO, any dispute resolution mechanism had to  carry the 
trust of all Members. However, the United Kingdom  also consider ed that finding a so lution should 
not stand in the way of the continued functioning of the system and the launch of the AB selection 
process es. The United Kingdom,  therefore , called on all Members to act urgently to restore the 
system to its full functioning, whilst Members  prioriti zed discussions on a long -term solution to the 
concerns raised.  
8.16.   The representative of Korea  said that his country wished to  welcome Bangladesh as a co-
sponsor  of the proposal contained in  document WT/DSB/W/609/Rev.1 7. Korea support ed the 
statement made by Mexico . Korea urge d all Members to engage constructively in the discussions to 
resolve th is issue as soon as possible .  
8.17.   The representative of Japan  said that his country wished to  refer to its statements made at 
previous DSB meetings  under this Agenda item . As Japan had  repeatedly  stated , its priority ha d 
always been and continue d to be to find a long -lasting solution to the Appellate Body matter.  
8.18.   The representative of India said that his country wished to refer to its statements made at 
previous DSB meetings on this matter . India also wished to reiterate its serious concerns regarding 
the DSB's inability to commence the AB selection processes. Since 11 December 2019, the Appellate 
Body was no longer availab le to review Panel Reports. The two -stage dispute settlement system , 
which was the central element in providing security and predictability to the multilateral trading 
system , had become paralyzed. Members  had clearly seen the consequences of such paralysi s at 
the present  meeting  as well as  on 28 February 2020 . Therefore, India called on all Members to 
immediately start the AB selection processes as a priority.  
8.19.   The representative of Turkey  said that his country  also wished to  refer to its statements made 
at previous DSB meetings . Turkey, as a co -sponsor of the proposal contained in  document 
WT/DSB/W/609/Rev.1 7, once again underline d the urgency of launching the AB selection process es 
as required  by Article 17.2 of the DSU. Lik e other  Members , Turkey believe d that as this impasse 
persisted , the security and predictability of the multilateral trading system w ould gradually diminish. 
Members  had already started see ing certain ramification s of this impasse. As other  Members had  
already raised, Members  needed the dispute settlement  system to continue produc ing binding 
adjudications . Members  should develop  means  to this end . In this respect, Turkey  continued to be 
confident  that Members c ould find a multilateral solution . Turkey  was willing to continue  discussions 
on the basis of the draft GC Decision put forward by  Ambassador Walker. Turkey st ood ready to 
engage constructively to help overcome this impasse and invite d all Members  to engage in  
discussion s with the Membership that went beyond  registering their complaints .  
8.20.   The representative of Switzerland  said that her country  wished to refer to its statements made 
at previous DSB meetings  on this matter . Switzerland remain ed ready to engage constructively with 
all Members with a view to finding concrete solutions and expressed hope that the situation c ould 
be resolved soon.  
8.21.   The representative of Chinese Taipei  said that his delegation wished to  thank  Mexico for its 
statement  under this Agenda item on behalf of the co -sponsors of the proposal contained in  
document WT/DSB/W/609/Rev.1 7. Chinese Taipei wished to  refer to its statement s made at 
previous  DSB meetings on this matter . Chinese Taipei  wished to welcome Bangladesh as a new co-
sponsor to this  proposal and urge d all Members to engage in constructive dialog ues to identify 
common ground t hat would help  overcome the current impasse.  
8.22.   The representative of the United States  thanked the Chair for the continued work on these 
issues. As the United States  had explained in prior DSB meetings, the United States  was not in a 
position to support the proposed decision. The systemic concerns that the United States  had WT/DSB/M/441  
 
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  identified remain ed unaddressed.  The US view across multiple US Administrations ha d been clear 
and consistent: When the Appellate Body overreache d and abuse d the authority it had been  given 
within the dispute settlement system, it undermine d the legitimacy of the system and damag ed the 
interests of all WTO Members who care d about having the agreements respected as they had been  
negotiated and agreed. On 11 February 2020, the Office of the US Trade Representative had 
published a Report on the Appellate Body of the World Trade Organ ization. The Report detail ed the 
manner in which the Appellate Body ha d strayed far from the limited role that WTO Members had 
assigned to it. Through persistent overreaching, the Appellate Body ha d increased its own power, at 
the expense of the authority of WTO Members. The United States encourage d Members to review 
the Report. As the United States ha d explained repeatedly, the fundamental problem was that the 
Appellate Body ha d not respected the cu rrent, clear language of the DSU.  Members c ould not find 
meaningful solutions to this problem without understanding how Members had  arrived at this point. 
Without an accurate diagnosis, Members  could not assess the likely effectiveness of any potential 
solution.  The United States was determined to bring about real WTO reform, including to ensure that 
the WTO dispute settlement system reinforce d the WTO 's critical negotiating and monitoring 
functions, and d id not undermine those functions by overreaching and  gap-filling.  As discussions 
among Members continue d, the dispute settlement system continue d to function.  The central 
objective of that system remain ed unchanged: to assist the parties to find a solution to their dispute. 
As before, Members ha d many metho ds to resolve a dispute, including through bilateral 
engagement, alternative dispute procedures, and third -party adjudication.  Consistent with the aim 
of the WTO dispute settlement system, the parties should make efforts to find a positive solution to 
their dispute, and this remain ed the US preference.  And the United States w ould continue to insist 
that WTO rules be followed by the WTO dispute settlement system. The United States  would continue 
its efforts and its discussions with Members and with the Chair  to seek a solution on these important 
issues.   
8.23.   The representative of China  said that his country wished to  echo the statement made by 
Mexico on behalf of the 120 co-sponsoring Members,  plus Bangladesh who ha d expressed its 
intention of joining as a  co-sponsor to the proposal  contained in  document WT/DSB/W/609/Rev.1 7. 
The paralysis of the Appellate Body was very worrying and needed to be addressed through  collective 
efforts. In that regard, China  strongly encou raged additional  Members to join this proposal in order 
to demonstrate their firm support and strong commitment to a two-tier, independent and predictable 
dispute settlement system. China expressed  deep regret that the AB selection process es, once again , 
had failed to be launched due to the illegal blocka ge of the United States. China  noted that the 
current two -tier dispute settlement system was part of the single undertaking. Without consensus, 
no Member  had the right to unilaterally change this negotiated  outcome. More importantly, for 
Members of this rules -based Organization, ensuring the functioning of the Appellate Body was not 
an option but an obligation. Article 17.2 of the DSU ma de it very clear : Members had to bear the 
legal obligation  of filling AB vacancies as they ar ose. No  excuse could serve to disregard  this 
obligation. Like many other international or domestic adjudication bod ies, the Appellate Body was 
not perfect and could be further improved on various fronts. However, any potential improv ement 
could be achiev ed only if there still was a viable Appellate Body. Over the past two years, Members 
had made tremendous efforts while searching for meaningful reform options. Twelve  proposals and 
a draft General Council decision ha d been tabled and v igorously discussed in different configurations. 
However, the United States continue d to fail to engage constructive ly in these discussions . This 
failure render ed Members ' collective efforts futile. Ironically, the United States ha d not tabled a 
single con crete proposal to address the concerns  it had raised. China  noted that the USTR had 
recently issued a report that target ed the Appellate Body  specifically . Regrettably, this 174 -page 
report was filled with criticisms  but proposed no solution. China believed that based on a  compar ison 
of the USTR  report with the statement made by the United States back in 2017 when it had blocked 
the AB selection process es for the first time , the United States appear ed to be  continuously 
expanding its concerns a nd request s. The criticisms in the USTR report were simply  post hoc  
justification s for the misguided  behavio ur of the United States . To break the deadlock, Members 
were certainly willing to discuss any issue raised by the United States. However, in light o f an old 
German fairy tale  titled The Fish erman and His Wife, the US requests should not be expanding  
ceasele ssly. The discussion need ed to be solution oriented . Otherwise Members might  stumble  into 
endless philosoph ical debate s that would lead  nowhere.  
8.24.   China renew ed its commitment to the informal process on AB matters and firmly support ed 
Ambassador  Walker and the Director -General in their respective efforts aimed at  furthering 
consultations on reform . However,  China believed  it was equally im portant to find a timely interim 
solution during the paralysis of the Appellate Body. In that regard, China and other like -minded WT/DSB/M/441  
 
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  Members were currently structuring a multi -party appeal arbitration mechanism which could serve 
as a stopgap . China welcome d and encourage d additional  Members to seriously consider subscribing 
to this interim solution. China also welcome d the adoption  of the Appellate Body report in the "US – 
Supercalendered Paper " dispute ( DS505 ) at the present meeting . Paralyzing the Appellate Body 
would not change the nature of th e rules-based multilateral trading system, nor would it change the 
nature of the unilateral protectionist actions taken by the United States. The paralysis of the 
Appellate Body w ould by no means become a means of leverage for the so-called "reform " advocated 
by the United States. As China had emphasized at the 9 December 2019  GC meeting , institutional 
memory was extremely important to ensure the integrity of the rules -based multilateral trading 
system. China wished to thank the Appellate Body Secretariat for its outstanding performance and 
long-term contribution in this respect. China request ed that the Appellate Body Secretariat remain 
stable during this period , and that its structure be maintained according to the Decision on the 
Establishment of the Appellate Body (WT/DSB/1). The staff of the Appellate Body Secretariat should 
also remain on standby so that, at any given time, it would be ready to return to work on new cases 
in a timely manner.  
8.25.   The representa tive of Mexico  speaking on behalf of the 12 1 co-sponsors of the joint  proposal  
contained  in document WT/DSB/W/609/Rev.1 7, regret ted that for the thirt y-second  occasion, 
Members had still not been able to launch the AB selection processes and ha d thus continuously 
failed to fulfil their duty as Members of this Organization.  The fact that a Member might  have 
concerns about certain aspects of the functioning of the Appellate Body should not serve as a pretext 
to undermine and  disrupt its work as well as the work  of the dispute settlement system . There was 
no legal justification for the current blockage  of the AB selection processes, which was causing 
concrete nullification and impairment for many Members . As Article 17.2 of the DSU clearly state d: 
"[v]acancies shall be filled as they arise" . No discussion should prevent the Appellate Body from 
continuing to operate fully and Members had to comply with their obligation under the DSU to fill 
the AB vacancies . They noted with deep concern that due to the continued failure to act at the 
present meeting, the Appellate Body would continue to be unable to perform its functions, against 
the best interest of all Members . 
8.26.   The representative of Mexico  said that the joint proposal  contained  in document 
WT/DSB/W/609/Rev.17  demonstrated  the Members ' desire to comply  with their obligation to fill AB 
vacancies as they ar ose, in accordance with Article 17.2 of the DSU. Mexico  expressed deep regret 
that Members were  in an unprecedented situation whereby  the Appellate Body was incomplete and  
non-operational . All ongoing disputes were being affected by the lack of a fully  functioning  dispute 
settlement system . This undermine d the right of all Members to engage in appe llate proceedings . 
Mexico urged Members to join the list of co ‑sponsors of this proposal  and not to become accustomed 
to this situation. Mexico reiterate d its readiness to work toward a solution  through concrete proposals 
aimed at  reach ing a concrete  solution.  
8.27.   The Chairman  thanked all delegations for their statements. He said that, as in the past, the 
DSB would take note of the statements expressing the respective positions, which would be reflected 
in the minutes of the present meeting . He recalled that, under the auspices of the Gener al Council, 
he had agreed to assist the Chair of the General Council, as Facilitator, in an informal process of 
focused discussions on Appellate Body matters . Based on his consultations, on 9 December 2019, 
he had provided his fifth progress report to the General Council and, as part of that report, he had 
put forward, in his capacity as Facilitator, a draft General Council Decision on the functioning of the 
Appellate Body for Members' consideration . The text of this draft decision contained in document 
WT/GC/W/791 had been based on the proposals submitted by Members and the extensive 
discussions in the informal process as well as the feedback that he had received from delegations . 
Unfortunately, no consensus had been reached on the draft Decision at the Gen eral Council meeting. 
Thus, it remained up to Members to decide  how this work w ould be taken forward in the future.  He 
would continue to look to assist Members in these efforts going forward in order to find a workable 
and agreeable solution to improve the  functioning of the Appellate Body . He noted that as a number 
of Members had observed at the present meeting , the business of th e present  meeting only serve d 
to illustrate the urgency of finding that solution.  
8.28.   The DSB took note of the statements.  WT/DSB/M/441  
 
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  9  AUSTRALI A – ANTI -DUMPING MEA SURES ON A4 COPY PAP ER: STATEMENT BY 
AUSTRALIA  
9.1.  The representative of Australia , speaking under "Other Business", said that a t its 
27 January  2020 meeting, the DSB had adopted the Panel 's recommendations and rulings in the 
dispute: "Australia – Anti-Dumping Measures on A4 Copy Paper from Indonesia " (DS529). On 
26 February  2020, Australia had provided the DSB with written notification of its intention to 
implement, as required under Articl e 21.3 of the DSU. As outlined in that written notification, 
Australia intend ed to implement the DSB's recommendations and rulings in a manner that complied 
with its WTO obligations . Australia  would  also conduct a review of the measures at issue in th is 
dispute. Australia would need a reasonable period of time to conduct this review and ha d had 
discussions with Indonesia on this matter, in accordance with Article 21.3(b) of the DSU. Australia 
and Indonesia ha d agreed on a reasonable period of time of eight months from 27 January  2020. 
An extension of the reasonable period of time  would be notified to the DSB in the event of any 
unavoidable delay. Australia and Indonesia w ould provide written notification of this agreement  to 
the DSB under Article 21.3(b) of the DSU.  
9.2.  The representative of Indonesia  said that his country  wished to thank Australia for its written 
communication , dated 26 February 2020 , and its statement made at the present meeting  regarding  
its intention s to implement the DSB's rulings and recommendations in this dispute.  Indonesia wished 
to confirm that it had agreed with  Australia on a reasonable period of time  to implement the DSB's 
rulings and recommendations . The reasonable period of time  would be  of eight months , starting 
from the date of the adoption of the Panel Report on 27 January 2020. The reasonable period of 
time would  expire on 27 September 2020.  Indonesia st ood ready to engage with Australia and look ed 
forward to receiving further information  on Australia's  future steps aimed at implement ing the DSB 's 
rulings and recommendations.  
9.3.  The DSB took note  of the statements.  
10  THAILAND – CUSTOMS A ND FISCAL MEASURES O N CIGARETTES FROM TH E 
PHILIPPINES  
A. Recourse to Article 22.2 of the DSU by the Philippines (WT/DS371/32)  
10.1.   The Chairman  drew attention to the communication from the Philippines contained in 
document WT/DS371/32 and invite d the representative of the Philippines to speak.  
10.2.   The representative of the Philippines  said that his country wished to  thank for the opportunity 
to present its request, under Article 22.2 of the DSU for authorization to suspend the application to 
Thailand of concessions or other obligations under the covered agreements, in th e DS371  dispute. 
The Philippines  regre tted that the work of the DSB ha d been delayed and welcome the resumption 
of the meeting.  The Philippines appreciate d that the DSB was properly consider ing the Philippines'  
request  under Article 22.2 of the DSU . The Philippines note d Thailand 's concerns re lating to the 
application of the Understanding on Sequencing and the current AB impasse  in the WTO dispute 
settlement  system , which  had previously been discussed under Agenda item 8.  As Thailand ha d 
stated, there were far reaching implications for the rule s-based WTO system . This Agenda item 
serve d as an opportunity for Members to express their views on the conflict between rights, 
obligations and procedures  under Article s 21.5 and 22 of the DSU , while also touching upon the 
viability and integrity of the WTO dispute settlement system  as a whole . The Philippines t ook 
exception , however , to the characterization that the Philippines was attempting to act unilaterally. 
The very reason the Philippines was before the DSB at the present meeting was  to seek pr oper 
multilateral authorization to suspend concessions pursuant to the clear provisions of Article 22 of 
the DSU. Thailand had agreed to two reasonable periods of time for the implementation of the DSB 's 
adopted recommendations and rulings, which appl ied to distinct measures. The first period had 
expired on 15 May 2012, and the second  one expired on 15 October 2012. On 1 June 2012, the 
Philippines and Thailand had conclude d an Understanding  on Sequencing  which had been  notified to 
the DSB on 7 June 2012 and circulated  to Members  in document WT/DS371/16 . The Understanding  
on Sequencing expressly stated that it was  without prejudice to the  parties'  respective rights and 
obligations under the DSU, including the Philippines ' rights under Article 22 . In the Under standing  
on Sequencing , Thailand had expressly committed not to object to the exercise by the Philippines of 
its rights under Article 22 . Thailand had also expressly preserved its rights to arbitration under WT/DSB/M/441  
 
- 33 - 
 
  Article  22.6 of the DSU . In good faith, the Philippines had pursue d parallel compliance proceedings  
under Article 21.5  of the DSU . The first compliance Panel Report had been  issued on 
12 November  2018. A second compliance Panel Report had been issued on 12 July 2019. Both 
compli ance Panels had confirm ed that Thailand had failed to comply with the DSB 's 
recommendations and rulings  in this dispute . Under the Understanding on Sequencing , any appeal 
of compliance panel reports under Article 21.5 of the DSU had  to be mandatorily resol ved within 
90 days from its initiation. The 90 -day period for the first and second compliance appeals ha d expired 
in 2019. On 10 December 2019, the AB division in each appeal had informed the parties that it had 
indefinitely suspended its work. In the Understanding on Sequencing , the parties ha d agreed to 
cooperate to find a prompt solution to any procedural issue not addressed in the Understanding. The 
Understanding on Sequencing  did not address the AB impasse,  but its spirit require d that the parties  
cooperate to find solutions . The Philippines was prepared to do so. Therefore , the Philippines was 
fully respecting the procedures of the Understanding on Sequencing and should not be prevented 
from asserting its valid and substantial rights under Article 22  of the DSU . At various times , the 
Philippines had  expressed the need to adopt the compliance panel reports  under Article 21.5 of the 
DSU and to obtain full compliance by Thailand with the DSB 's duly adopted recommendations. The 
Philippines remai ned open to constructive and time -bound solutions to the current situation that 
would respect the spirit of the Understanding on Sequencing 's mandatory 90 -day period for the 
resolution of appeals.  
10.3.   Therefore , the Philippines called on Thailand and other Members , under the leadership of the 
Chair man, to guide the Philippines toward  obtaining full compliance with the DSB 's recommendations 
and rulings by Thailand or , in the alternative,  to afford and respect the right of the Philippines to be 
compensated or to be authorized to suspend concessions. In the informal consultations  this past 
week, the Chair man had mentioned the possibility of referring the resolution of the pending appeals 
regarding the proceedings under Article 21.5 of the DSU to alternative methods and rules, including 
but not limited to Article 25 of the DSU. The Philippines ha d expressed its openness to this 
suggestion, as well as to resort ing to arbitration under Article 22.6 of the DSU,  to any other hybrid 
alternative  or to any other constructive suggestion . The Philippines'  remain ed open and welcome d 
and solicit ed views of Members. From the Philippines ' perspective, if Thailand d id not accept some 
solution to finalize  Thailand 's appeals promptly under alternative procedures, including through 
resort to Article 25 of the DSU, this matter would inevitably return to the DSB for a decision under 
the mandatory decision -making rules contained in  Article 22.6 of the DSU. The Phi lippines was 
prepared to be guided by the Chair man and the DSB on compromise s and c ould formally 
communicate this to the Chair man and Thailand . However,  the Philippines would not be in a position 
to indefinite ly suspen d the exercise of its rights under Article 22 of the DSU . The mandatory decision -
making rules in Article 22.6 of the DSU were designed precisely to prevent a respondent from 
frustrating WTO dispute settlement in such a manner  as to block consensus . In these cir cumstances, 
the Philippines formally present ed its request to the DSB for authorization to suspend concessions 
or other obligations under the covered agreements . However , the Philippines was  willing to suspend 
consideration of this matter pending further c onsultations among the parties as well as pending the 
expression of views by  Members . This willingness was  subject to the condition that the DSB w ould 
revert to and retain this Agenda item at the next and subsequent DSB meetings in order to preserve 
all rights and remedies of the Philippines. The Philippines  reserve d its right to make an additional 
statement  after having heard the perspectives of other Members , and to update Members  of any 
development at the next DSB meeting.  
10.4.   The representative of Thailand  said that her country wished to present Members with the 
background to the Philippines' request. Thailand expressed regret that the Philippines ha d present ed 
Members with a one -sided and inaccurate picture of the status of th is dispute. The Philippines' 
timeline for this dispute attached to its statement made on 28 February 2020  was equally  one-sided . 
That timeline  did not take into account the effects of the Philippines' litigation strategies and its 
timing preferences, including, for example, the Philippines ' requests to delay the issuance of the two 
compliance panel reports,27 which had also affected the course of the dispute. Neither Thailand nor 
the DSB was responsible for the Philippines' own choices.  As background to the Philippines' request , 
Thailand w ished to  explain that the present situation was very straightforward. Contrary to what the 
Philippines ha d suggested, it was not a complex legal matter.  In order to situate  the Philippines' 
request in the appropriate context, it was important to recall the history of this dispute.  The 
reasonable period of time for complying with the DSB's recommendations in this dispute had expired 
 
27 Communications from the Pan el, WT/DS371/25 and WT/DS371/29, dated 9 November 2018 and 
12 July 2019 respectively.  WT/DSB/M/441  
 
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  on 15 May 2012. The Parties  had concluded a sequencing agreement on 1 June 2012, following one 
of the standard models . This sequencing  agreement contain ed two essential rules:28 (i) the 
Philippines had agreed to request retaliation under Article 22.2 of the DSU only after completion of 
proceedings under Article 21.5 of the DSU, which include d a ruling by the Appellate Body in  the 
event  of an appeal ; and (ii) t he sequencing agreement further state d that upon completion of the 
appeals , Thailand would not object to the Philippines' retaliation request as being outside the 30 -day 
deadline s et out  in Article 22.6 of the DSU. As Members knew , absent a sequencing agreement, a 
retaliation request that was filed after completing compliance pro ceedings would normally be outside 
the 30 -day period for doing so under Article 22.6  of the DSU . There was nothing unusual about this 
type of sequencing agreement. It simply clarifie d the parties' agreement on the sequence of 
procedures to be followed and confirm ed that a retaliation request submitted after the completion 
of compliance proceedings w ould not be considered untimely. Based on the parties' understanding, 
the Philippines had initiated two compliance proceedings under Article 21.5  of the DSU . The  
compliance panel had issued its reports on 12 November 2018 and 12 July 2019, respectively. 
Thailand had appealed both compliance reports on 9 January 2019 and 9 September 2019, 
respectively. The appellate review in these compliance proceedings was, there fore, still pending.  
10.5.   Thailand believed that th e Philippines ' request was without any legal basis . During the past 
two years, at no point had the Philippines question ed the validity of the agreed sequence of steps. 
In its panel requests under Article 21.5  of the DSU , the Philippines had expressly stated that it was 
doing so  "pursuant to paragraph 1 of the Sequencing Agreement ".29 Thus, at no point during the 
proceedings under Article 21.5 of the DSU had the Philippines questioned the validity of the agreed 
sequencing rules. This had changed on 12 February 2020, when the Philippines had submitted a 
request to suspend concessions against Thailand. The Philippines ' request had been  submitted while 
the appeals under Article 21.5 of the DSU were  ongoing. By filing  its request, the Philippines 
appear ed to believe that it was no longer bound by the sequencing agreement and, therefore, that 
it could proceed to requesting the suspension of concessions even before the completion of the 
appeals in respect of the proceedin gs under Article 21.5  of the DSU . Thailand expre ssed 
disappoint ment that the Philippines ha d chosen to unilaterally disregard the previously accepted 
rules for the post -implementation stage of this dispute. Thailand expressed  disappoint ment that the 
Philip pines ha d chosen to depart from its own position in the "EC – Bananas " dispute  that, when 
there was a disagreement as to whether the measure taken to comply achieved  compliance, 
"Article  21.5 proceedings should be available to [the respondent] to resolve t hat disagreement ".30  
10.6.   Thailand wished to  reiterate  that the proceedings under Article 21.5 of the DSU we re still 
pending in this dispute , and that there ha d been no adopted reports finding that Thailand ha d failed 
to comply. Thailand believed that the  impor tant question was what would be the rights and 
obligations of Thailand and the Philippines if, as the Philippines appear ed to suggest, the sequencing 
agreement was no longer valid . Thailand believed that th e answer was simple : it mean t that the 
DSU had to be applied to the letter. Specifically, if one accept ed that the sequencing agreement was 
no longer valid, the DSB had to  enforce the deadline under Article 22.6 of the DSU regarding the 
authorization of a request to  suspen d concession s. Pursuant to Article 22.6, any retaliation request 
had to  be authorized by the DSB within 30 days of the expiry of the reasonable period of time  to 
comply . The reasonable period of time in this dispute had expired on 15 May 2012 . This  mean t that 
the dead line for authorizing the suspension of concessions had expired on 15 June 2012, more than 
seven  years ago. In these circumstances, there were only two possible ways of consider ing the 
Philippines' request:  (i) either the sequencing agreement applie d, in wh ich case the Philippines c ould 
not request authorization to suspend before the appeals were completed; or  (ii) the sequencing 
agreement d id not apply, in which case the Philippines' request was untimely under Article 22.6 of 
the DSU, as the 30 -day deadline  for requesting retaliation had expired on 15 June 2012.  
10.7.   Thailand believed that the Philippines' request was without any legal basis and should not  
have been on the Agenda of the present  meeting. This was not the usual debate on the relationship 
between Articles 21 and 22  of the DSU . This was not an abstract legal discussion. It was a 
straightforward issue which entailed determining whether or not the sequencing agreement appl ied. 
The Philippines had to  be able to answer this simple a nd direct question. The DSB c ould not and 
 
28 Understanding between the Philippines and Thailand regarding procedures under articles 21 and 22 of 
the DSU, WT/DS371/16, 7 June 2012.  
29 WT/DS371/18 of 6 July 2016 (fir st 21.5), para. 4; and WT/DS371/22 of 16 March 2018 (second 21.5), 
third preamble paragraph.  
30 Minutes of the DSB meeting dated 19 April 1999, WT/DSB/M/59, p. 9.  WT/DSB/M/441  
 
- 35 - 
 
  should not accept the Philippines' insistence that some parts of the sequencing agreement were still 
valid while some other parts were no longer valid. The Philippines c ould not breach the sequencing 
agreement by r equesting the suspension of concessions before the completion of the appeals 
contemplated in the sequencing agreement, while simultaneously asking Thailand to respect the 
provisions of the sequencing agreement that allow ed the Philippines to request the su spension of 
concessions beyond  the deadline under Article 22.6 of the DSU. The Philippines c ould not pick and 
choose which rules to respect and which rules to disregard. Thailand also f ound extraordinary the 
Philippines ' argument that once appeals ha d been pending for more than 90 days, Thailand and 
other affected Members should lose their rights under the DSU to appellate review of panel reports. 
This argument ha d no basis in the DSU.  It did, however, emphasize the need for Members to seek 
a prompt solutio n that w ould enable the dispute settlement system to move forward in a manner 
that respect ed the rights and obligations of all Members and all disputing parties.  
10.8.   Thailand believed that a bsent any adopted compliance report by the Panel or the Appellate 
Body, the Philippines' retaliation request would amount to a unilateral determination regarding 
Thailand's alleged failure to comply with the DSB's rulings and recommendations in the original 
dispute. Thailand wished to recall that these types of unilateral d eterminations were expressly 
prohibited by Article 23.2(a) of the DSU. Article 23 was meant to prevent a WTO Member from 
"tak[ing] the law into its own hands ".31 Thailand was also concerned that the Philippines ha d provided 
some Members with an inaccurate picture of Thailand 's approach to the resolution of this situation. 
Thailand  believed that  bilateral discussions should remain bilateral. Nevertheless, as Thailand ha d 
stated  repeatedly , the real problem was the Ap pellate Body crisis. For the  means of resolutions of 
disputes in the WTO to have credibility among Members and in their  capitals, it  had to  have 
multilateral support or, at a minimum, broad -based support in favour of  any temporary mechanism. 
Again, Thailan d encourage d all Members, including the Philippines, to do their best to enable the 
system as a whole to move forward as soon as possible. For these reasons, Thailand wished to 
reiterate strong ly that the DSB was not in a position to consider and grant the  Philippines ' request 
for suspension of concessions at th e present  meeting.  
10.9.   The Chairman  said that , without prejudice to the rights o f the Philippines and Thailand, he 
wished to propose that further consideration of this  Agenda item be suspended at this po int. In 
proposing to suspend, the Chairman  said that he would continue  to consult with Thailand and the 
Philippines on these matters.  
10.10.   The representative of China  said that his country  underst ood that both parties had 
negotiated and reached a sequencing agreement in good faith with a view to solving th is dispute in 
a manner consistent with the DSU. China  noted, however, that the AB paralysis was such a n 
extraordinary circumstance that neither party could have envisaged it when the sequencing 
agreement had been agreed . This was simply  another example of the devastating impact that the 
Appellate Body impasse could have  for all Members.  Nevertheless, th ese unexpected circumstance s 
should in no way diminish the rights and ob ligations of the parties to this dispute under the covered 
agreements. Therefore , China  encourage d both parties to consult with each other in good faith and 
make efforts to solve this matter as soon as possible.  
10.11.   The representative of the Philippines  said that his country  acknowledge d and took note of 
Thailand's comments . The Philippines believed that Thailand's legal concern s would require some 
sort of adjudication. The Philippines  wished that  the Chai r's consultations on this matter  be as broad 
as possible.  
10.12.   The Chairman  said that , without prejudice to the rights o f the Philippines and Thailand , 
further consideration of this  Agenda  item would be  suspende d. He said that he would continue  to 
consult with Thailand and the Philippines on  these matters.  
10.13.   The DSB took note  of the statements and , as proposed by the Chairman,  further 
consideration of Agenda item 10 was suspended . 
__________  
 
31 Decision by the Arbitrator, "Canada – Aircraft Credits and Guarantees " (Article 22.6 – Canad a), 
para. 398.