RESTRICTED  
  
WT/DSB/M/432  
 
11 October  2019 
(19-6421) Page: 1/4 
Dispute Settlement Body  
9 August 2019    
 
MINUTES OF MEETING  
HELD IN THE CENTRE WILLIAM R APPARD  
ON 9 AUGUST 2019  
Acting Chairman: H.E. Mr. Manuel A.J. TEEHANKEE  (Philippines)  
Prior to the adoption of the Agenda , the Chairman of the TPRB, Ambassador Manuel A.J. T eehankee , 
welcomed delegations and said that he h ad the pleasure of chairing the present DSB meeting  in the 
absence of Ambassador David Walker , the Chairman of the DSB. He said that t his was in accordance 
with the Rules of Procedure for meetings of the DSB, which provide d that: "If the DSB Chair person  
was absent from any meeting or part thereof, the Chairperson of the General Council, or in the 
latter 's absence, the Chairperson of the Trade Policy Review Body, shall perform the functions of the 
DSB Chairperson ".  
 
Table of Contents  
 
1   UNITED STATES – ANTI -DUMPING MEASURE S ON CERTAIN OIL COU NTRY TUBULAR 
GOODS FROM KOREA  ................................ ................................ ................................ ....... 1 
A. Recourse to Article 22.2 of the DSU by Korea  ................................ ................................ ..... 1 
2   STATEMENT BY THE  UNITED STATES CONCERN ING TRANSPARENCY IN RELATION TO 
THE DISPUTE ON "UNIT ED STATES – ANTI -DUM PING MEASURES ON CER TAIN OIL 
COUNTRY TUBULAR GOOD S FROM KOREA"  ................................ ................................ ...... 3 
 
1  UNITED STATES – ANTI -DUMPING MEASURES ON  CERTAIN OIL COUNTRY  TUBULAR 
GOODS FROM KOREA  
A. Recourse to Article 22.2 of the DSU by Korea ( WT/DS488/14 ) 
1.1.  The Chairman  drew attention to the communication from Korea contained in document 
WT/DS488/14 . He then  invited the representative of Korea to speak.  
1.2.  The representative of Korea  said that his country  thank ed the Chairman  for convening this 
special meeting  to consider  Korea 's request to suspend concessions or other obligations vis-a-vis 
the United States for its failure to implement the DSB's recommendations and rulings in the dispute : 
"US – OCTG (Korea) " (DS488) . Korea request ed the authorization to suspend concessions or other 
obligations at an annual level commensurate with the level of nullification or impairment of benefits 
to Korea caused by the U S failure to comply with the DSB 's recommendations and rulings in th at 
dispute. Based on available information, Korea estimate d this amount at US$350 million annually, 
to be adjusted by app lying the annual growth rate of the OCTG market of the United  States. 
On 12 January 2018, the DSB had adopted the Panel Report finding that the US anti-dumping 
measures were inconsistent with the Anti -Dumping Agreement. At the 9 February  2018 DSB 
meeting , the United States had informed the DSB of its intention to implement the DSB 's 
recommendations and rulings. Korea and the United  States had agreed that the reasonable period 
of time for implementation would expire 12  months  after the adoption of the Panel Report , i.e., on 
12 January 2019. One day prior to the expiry of this deadline, Korea had agreed to extend the 
reasonable period of time until 12 July 2019. Korea was disappointed that the United States ha d 
failed to bring its anti -dumping measures into co mpliance with the DSB 's recommendations and WT/DSB/M/432  
 
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  rulings despite the lengthy implementation period. As a result of US non-compliance, Korean 
companies continue d to be adversely affected by the US measures  at issue.  This had nullified and 
impaired benefits that would have otherwise accrued to Korea. Korea urge d the United  States to 
immediately bring its measures into compliance. Until such time, Korea request ed that the DSB 
authorize Korea to exercise its right under Article  22.2 of the DSU to suspend concessions  or other 
obligations in an amount equivalent to the level of nullification or impairment. Korea s ought  to 
suspend tariff concessions and related obligations in the goods sector under the GATT 1994, and 
would provide the DSB with a list of goods and the le vel of tariffs to be applied to those goods in 
due course.  
1.3.  The representative of the United  States  said that o n 29 July 2019, Korea had requested that 
the DSB authorize Korea to suspend concessions and related obligations under the GATT 1994. By 
letter dated 8 August 2019, the United  States had objected to the level of suspension of concessions 
or other obligations proposed by Korea. Under  the terms of Article 22.6 of the DSU, the filing of such 
an objection automatically result ed in the matter being referred to arbitration. Article 22.6  of the 
DSU did not refer to any decision by the DSB, and no decision was therefore required or possible.  
Consequently, because of the US objection under Article 22.6, the matter already ha d been referred 
to arbitration. Nevertheless, although unnecessary, the DSB could  take note of that fact and confirm 
that it could  not therefore consider Korea's request fo r authorization.  
1.4.  The representative of  Canada  said that his country  noted that Korea 's request for the 
authorization to suspend concessions raise d, given the absence of a sequencing agreement, certain 
systemic issues. Canada  had heard the statements of the  disputing parties during the 22 July 2019  
DSB meeting, whe n the U nited States had  stated having fully complied with the DSB's 
recommendations and rulings in this dispute and Korea had disagreed. Canada  believed  that 
disagreements about the co nsistenc y of measures taken to comply should be dealt with in 
proceedings initiated under Article  21.5 of the DSU, and that these compliance proceedings should 
precede the DSB 's authorization to suspend concessions. Canada  encourage d the disputing parties 
to cooperate to ensure that the dispute settlement system function ed in an orderly manner. To that 
end, inspiration could  be drawn from the Practice  Document contained in document 
JOB/DSB/1/Add.6 under the Mechanism for Developing, Documenting and Sharing Practices and 
Procedures in the conduct of WTO disputes. That document outline d the so -called "sequencing issue " 
and provide d an annotated version of a sequencing agreement that had been  entered into in the 
context of a prev ious dispute.  
1.5.  The representative of China  said that o n 12 January 2018, the DSB had adopted the Panel 
Report in the dispute : "US – OCTG (Korea) " (DS488) . By finding certain US anti-dumping practices  
to be  WTO-inconsistent, the Panel had made important clarifications on certain obligations of 
investigating authorities under the Anti -Dumping Agreement which include d limitations in selecting 
sources for constructed value calculations, the proper application of the "same general category of 
products " and the mandatory calculation of the profit cap in accordance with Article  2.2.2(iii) of the 
Anti-Dumping Agreement. China share d Korea's concerns with respect to the failure of the United 
States to bring its WTO -inconsistent anti -dumping measures into conformity  with its obligations. 
Regrettably, such failure of compliance ha d already become a US pattern especially when its 
problematic trade remedy measures were at issue. In those disputes, the United  States had 
repeatedly ignored the adopted DSB's  recommendations and rulings and had chose n to re-litigate 
well-resolved issues such as its "as such " inconsistent zeroing measures before panels and the 
Appellate Body , with the aim of crippl ing or even overturn ing prior rulings through future 
proceedings. Such behavior , which jeopardized the effectiveness and credibility of the dispute 
settlement system , had to  be firmly opposed by the entire  Membership. Against this backdrop, China 
respect ed Korea 's decision to resort t o Article 22.2 of the DSU as a legal recourse within the WTO 
context to safeguard its legitimate interests. China  also call ed on the United States to change its 
course of action with respect to  compliance and to faithfully implement the DSB's recommendations 
and rulings without further delay.  WT/DSB/M/432  
 
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  1.6.  The representative of Korea  said that his country's  requested level of suspension reflect ed the 
level of nullification and impairment caused by US non-compliance with the DSB 's recommendations 
and rulings as estimated based on available data. Nonetheless, Korea recognize d the right  of the 
United States  under Article 22.6 of the DSU to refer the matter to arbitration if the United States 
object ed to the proposed level of suspen sion. 
1.7.  The DSB took note of the statements and that the matter raised by the United  States  in 
document WT/DS488/15 ha s been referred to arbitration, as required by Article 22.6 of the DSU.  
2  STATEMENT BY THE UNI TED STATES CONCERNIN G TRANSPARENCY IN RELATION TO 
THE DISPUTE ON " UNITED STATES – ANTI -DUMPING MEASURES ON  CERTAIN OIL 
COUNTRY TUBULAR GOOD S FROM KOREA"  
2.1.  The representative of the United  States  , speaking under "Other Business", said that i n light of 
the present meeting, the United  States wishe d to make a statement relati ng to transparency in the 
dispute "US – OCTG (Korea) " (DS488)  and to take this opportunity to again underscore the systemic 
importance of transparency in the dispute settlement system.  The United States  recall ed that, while 
the DSU d id not mandate or ensur e transparency, it also d id not prohibit decisions by Members to 
provide transparency.  Thus, there was no DSU impediment to Members taking action to improve 
transparency in WTO dispute settlement by agreeing to make submissions public, and to permit 
observ ation of meetings and hearings in their disputes by all Members and the public. In the dispute 
"US – OCTG (Korea) " (DS488) , the United  States had sought to make its statements at the Panel 
meetings observable by other WTO Members and the public at the time those statements had been  
delivered. The United States  was disappointed that Korea had objected to a US request for open 
meetings at the panel stage and, furthermore, that Korea had sought to keep US statements 
confidential at the time of their delivery.  Korea had also sought to maintain the confidentiality of its 
own statements. This was surprising, given that Korea 's position was contrary to its own views on 
transparency in other ven ues, including under other trade agreements. For example, Korea ha d 
agreed to make submissions public and to open panel meetings under the Korea -US Free Trade 
Agreement  (FTA) .1 But that was not all.  Korea ha d also committed to support transparency under 
other trade agreements, such as the EU -Korea FTA,2 the Canada -Korea FTA,3 and the 
Korea -New Zealand FTA.4 The United States  did not see any reason why Korea would consider that 
the WTO  dispute settlement system should be less transparent than these other trade agreements 
to which Korea was a party. If an arbitration pursuant to Article 22.6 of the DSU were to become 
necessary, it would provide another opportunity for Korea to reaffirm th e views on transparency it 
had expressed elsewhere in the context of WTO dispute settlement. To that end, the United  States 
would seek Korea 's agreement to promote transparency in any further proceeding in this dispute, 
such as an open arbitral meeting and  public submissions.   
2.2.  The representative of Korea  said that his country was  quite surprised to hear the US comments 
on this systemic issue, i.e., the so called "DSU transparency issue ", which had been  raised tw ice in 
July 2019 , i.e., during the 22 July 201 9 DSB meeting  and the 23 -24 July 2019 General Council 
meeting , as well as  once more at the present meeting , as a specific item under "O ther Business ". 
Korea place d a high value on transparency in multilateral proceedings. Korea believe d that 
transparency was one of the most important factors contributing to building credibility and enhancing 
confidence in the WTO dispute settlement system. However, Korea note d that nothing in the DSU 
require d Members to open dispute settlement proceeding s to the public . Korea believe d that there 
                                                
1 Free Trade Agreement between the Republic of Korea and the United States of America, Article  22.10(1) 
("subject to subparagraph (f) [on protection of confidential information], any hearing before the panel shall be 
open to the public ") ("Korea -US FTA "); id., Model Rules of Procedure, para. 41 ( "[a]ll hearings of the panel shall 
be open for the public to observe, except that the panel shall close the hearing for the duration of any discussion 
of confidential information ".) (footnote omitted).  
2 Free Trade Agree ment between the European Union and its Member States and the Republic of Korea, 
Article  14.14(2) ( "[a]ny hearing of the arbitration panel shall be open to the public in accordance with Annex 
14-B".) ("EU-Korea FTA "); id., Annex 14 -B, Article 7(7) ( "[t]he hearings of the arbitration panels shall be open 
to the public, unless the Parties decide that the hearings shall be partially or completely closed to the public ".). 
3 Canada -Korea Free Trade Agreement, Article 21.8 ( "[u]nless the Parties agree otherwise, the rules of 
procedure of a panel shall ensure … (d) subject to subparagraph (g) [on the protection of confidential 
information], that hearings of the panel are open to the public[.] ") ("Canada -Korea FTA "). 
4 Free Trade Agreement between the Republic of Ko rea and New Zealand, Model Rules of Procedure for 
Arbitration Panels, para. 21 ( "[h]earings shall be open to the public, unless the Parties otherwise agree ") 
("Korea -New Zealand FTA "). WT/DSB/M/432  
 
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  had to be a balance between enhancing transparency and protecting a Member 's right to 
confidentiality in  a dispute. This balance could  vary depending on the circumstances of a Member or 
of a particular dispute and  had to  be examined on a case -by-case basis. Korea look ed forward to 
continuing discussions on the issue of transparency in a construc tive and balanced manner.  
2.3.  The DSB took note of the statements.  
 
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