RESTRICTED  
  
WT/DSB/M/436  
 
16 December  2019 
(19-8671) Page: 1/23 
Dispute Settlement Body  
28 October 2019    
 
 
MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 28 OCTO BER 2019 
Chairman: H.E. Dr David Walker (New Zealand)  
Table of Contents  
1 SURVEILLANCE OF IMPLEMENTATION OF RE COMMENDATIONS ADOPTE D 
BY THE DSB  ................................ ................................ ................................ ......................  2 
A. United  States – Anti-dumping measures on certain hot -rolled steel products from  
Japan: Status report by the United  States  ................................ ................................ ..............  3 
B. United  States – Section  110(5) of the US Copyright Act: Status report b y the United  States  ..... 3 
C. European  Communities – Measures affecting the approval and marketing of  
biotech products: Status report by the European  Union  ................................ ...........................  4 
D. United  States – Anti-dumping and countervailing measures on large residential  
washers from Korea: Status repo rt by the United  States  ................................ ..........................  5 
E. United  States – Certain methodologies and their application to anti -dumping  
proceedings involving China: Status report by the United  States  ................................ ...............  6 
F. Indonesia – Importation of horticultural products, animals and animal products:  
Status report by Indonesia  ................................ ................................ ................................ ... 6 
2 IMPLEMENTATION OF TH E RECOMMENDATIONS OF  THE DSB  ................................ ....... 7 
A. Ukraine – Anti-dumping measures on ammonium nitrate  ................................ .....................  7 
B. Korea – Anti-dumping duties on pneumatic valves from Japan  ................................ ..............  7 
3 UNITED STATES – CONT INUED DUMPING AND SU BSIDY OFFSET ACT OF 2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE DSB  ..........................  9 
A. Statement by the European Union  ................................ ................................ .....................  9 
4 EUROPEAN COMMUNITIES  AND CERTAIN MEMBER STATES – MEASURES  
AFFECTING TRADE IN L ARGE CIVIL AIRCRAFT:  IMPLEMENTATION OF T HE 
RECOMMENDATIONS ADOP TED BY THE DSB  ................................ ................................ .. 10 
A. Statement by the United States  ................................ ................................ ....................... 10 
5 STATEMENT BY THE UNI TED STATES CONCERNIN G ARTICLE 6.2 OF THE  
UNDERSTANDING ON RUL ES AND PROCEDURES GO VERNING THE SETTLEME NT 
OF DISPUTES  ................................ ................................ ................................ .................  11 
6 INDIA – ADDITIONAL D UTIES ON CERTAIN PRODUCTS FROM  
THE UNITED STATES  ................................ ................................ ................................ ...... 15 
A. Request for the establishment of a panel by the United States  ................................ ............. 15 WT/DSB/M/43 6 
 
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 7 MOROCCO – DEFINITIVE  ANTI -DUMPING MEASUR ES ON SCHOOL  EXERCISE  
BOOKS FROM TUNISIA  ................................ ................................ ................................ ... 17 
A. Request for the establishment of a panel by Tunisia  ................................ ........................... 17 
8 UNITED STATES – COUN TERVAILING DUTY MEAS URES ON CERTAIN PROD UCTS  
FROM CHINA  ................................ ................................ ................................ ..................  18 
A. Recourse to Article 22.2 of the DSU by China  ................................ ................................ ....18 
9 APPELLATE BODY APPOI NTMENTS: PROPOSAL BY  ANGOLA; ARGENTINA; AUSTRALIA; 
BENIN; PLURINATIONAL  STATE OF B OLIVIA; BOTSWANA; BR AZIL; BURKINA FASO; 
BURUNDI; CABO VERDE;  CAMEROON; CANADA; C ENTRAL AFRICAN REPUB LIC; CHAD; 
CHILE; CHINA; COLOMB IA; CONGO; COSTA RIC A; CÔTE  D'IVOIRE; CU BA; DEMOCRATIC 
REPUBLIC OF CONGO; D JIBOUTI; DOMINICAN R EPUBLIC; ECUADOR; EG YPT; 
EL SALVADOR; ESWATINI; TH E EUROPEAN UNION; GA BON; THE GAMBIA; GHA NA; 
GUATEMALA; GUINEA; G UINEA -BISSAU; HONDUR AS; HONG KONG, CHINA ; ICELAND; 
INDIA; INDONESIA; IS RAEL; KAZAKHSTAN; KE NYA; REPUBLIC OF KOR EA; LESOTHO; 
LIECHTENSTEIN; MADAG ASCAR; MALAWI; MALAY SIA; MAL I; MAURITANIA; MAURI TIUS; 
MEXICO; MOROCCO; MOZ AMBIQUE; NAMIBIA; NE W ZEALAND; NICARAGUA ; NIGER; 
NIGERIA; NORTH MACED ONIA; NORWAY; PAKIST AN; PANAMA; PARAGUAY ; PERU; 
QATAR; RUSSIAN FEDER ATION; RWANDA; SENEG AL; SEYCHELLES; SIER RA LEONE; 
SINGAPORE; SOUTH AFR ICA; SWITZERLAND; THE S EPARATE CUSTOMS TERR ITORY OF 
TAIWAN, PENGHU, KINM EN AND MATSU; TANZAN IA; THAILAND; TOGO; TUNISIA; 
TURKEY; UGANDA; UKRA INE; URUGUAY; THE BO LIVARIAN REPUBLIC OF  VENEZUELA; 
VIET NAM; ZAMBIA AND  ZIMBABWE  ................................ ................................ ..............  18 
10 NORWAY -EUROPEAN UNIO N INTERIM APPEAL ARB ITRATION ARRANGEMENT  
PURSUANT TO ARTICLE 25 OF THE DSU  ................................ ................................ .........  23 
A. Statement by Norway  ................................ ................................ ................................ .....23 
 
1  SURVEILLANCE OF IMPL EMENTATION OF RECO MMENDATIONS ADOPTED BY THE DSB  
A. United  States – Anti-dumping measures on certain hot-rolled steel products from Japan: Status 
report by the United  States (WT/DS184/15/Add.200)  
 
B. United  States – Section  110(5) of the US Copyright Act: Status report by the United  States 
(WT/DS160/24/Add.175)  
 
C. European Communities – Measures affecting the approval and marketing of biotech products: 
Status report by the European Union (WT/DS291 /37/Add.138)  
 
D. United  States – Anti-dumping and countervailing measures on large residential washers from 
Korea: Status report by the United States ( WT/DS464 /17/Add.22)  
 
E. United  States – Certain methodologies and their application to anti-dumping proceedin gs 
involving China: Status report by the United  States (WT/DS471/17/Add.14)  
 
F. Indonesia – Importation of horticultural products, animals and animal products: Status report by 
Indonesia (WT/DS477/21/Add.9 – WT/DS478/22/Add.9)  
 
1.1.  The Chairman  noted that there were six sub -items under this Agenda item concerning status 
reports submitted by delegations pursuant to Article  21.6 of the DSU. He recalled that Article 21.6 
required that: "[u]nless the DSB decides otherwise, the issue of implementation  of the 
recommendations or rulings shall be placed on the Agenda of the DSB meeting after six months 
following the date of establishment of the reasonable period of time and shall remain on the DSB's 
Agenda until the issue is resolved ." Under this Agenda i tem, he invited delegations to provide 
up-to-date information about their compliance efforts. He also reminded delegations that, as 
provided for in Rule 27 of the Rules of Procedure for DSB meetings: "[r]epresentatives should make 
every effort to avoid the  repetition of a full debate at each meeting on any issue that has already 
been fully debated in the past and on which there appears to have been no change in Members' 
positions already on record ." He then turned to the first status report under this Agend a item.  WT/DSB/M/43 6 
 
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 A. United  States – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status report by the United  States (WT/DS184/15/Add.200)  
1.2.  The Chairman  drew attention to document WT/DS184/15/Add.200, which contain ed the status 
report by the United  States on progress in the implementation of the DSB's recommendations in the 
dispute concerning US  anti-dumping measures on certain hot -rolled steel products from Japan.  
1.3.  The representative of the United  States  said that t he United States had provided a status report 
in this dispute on 17 October 2019 , 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 DSB's recommendations and rulings 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 representative of Japan  said that his country wished to thank the United States for its 
latest 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 rulings so as to resolve this 
matter.  
1.5.  The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
B. United  States – Section  110(5) of the US Co pyright Act: Status report by the 
United  States (WT/DS160/24/Add.175)  
1.6.  The Chairman  drew attention to document WT/DS160/24/Add.175, which contain ed the status 
report by the United  States on progress in the implementation of the DSB's recommendations in the 
dispute 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 October 2019 , in accordance with Article 21.6 of the DSU. The US Administratio n 
would continue to confer with the European Union, and to work closely with the US Congress, in 
order to reach a mutually satisfactory resolution of this matter.  
1.8.  The representative of the European Union  said that his delegation  wished to thank  the 
United  States for its status report as well as for its statement made at the present meeting . The 
European Union wished to refer to its statements  made at previous DSB meetings  and to reiterate 
that it wished  to resolve this dispute as soon as possibl e. 
1.9.  The representative of China  said that his country  noted that the United States ha d provided 
176 status reports in this dispute. However, these reports were not different from one another , and 
none of them indicate d any progress on implementation. Nearly  two decades after the DSB had 
adopted the Panel Report  in this dispute , the United States continue d to fail to bring its 
WTO-inconsistent measures into conformity , as stipulated in  Article 21.1 of the DSU. Prompt 
compliance was essential for the well -functioning of the dispute settlement system. When the 
United  States, the most frequent user and the major beneficiary of the system, had chose n to 
disregard its implementation obligati ons for this long, the capacity and the effectiveness of the 
dispute settlement system to rein in trade distortions was inevitably compromised. China, therefore , 
urged the United States to faithfully hono ur its commitments under the DSU and the TRIPS 
Agree ment by implementing the DSB 's recommendations and rulings in this dispute 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.  WT/DSB/M/43 6 
 
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 C. European  Communities – Measures affecting the approval  and marketing of biotech 
products: Status report by the European  Union (WT/DS291/37/Add.138)  
1.11.   The Chairman  drew attention to document WT/DS291/37/Add.138, which contain ed the 
status report by the European  Union on progress in the implementation of the DSB's 
recommendations in the dispute concerning measures affecting the approval and marketing of 
biotech products.  
1.12.   The representative of the European Union  said that  the EU c ontinue d to progress with the 
authori zations where the European Food Safety Authority ha d finalized its scientific opinion and had 
concluded that there were no safety concerns. As repeatedly explained by the EU and confirmed by 
the US delegation 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. This ha d resulted in 
a clear improvement of the situation. It was also important to note that the slow reac tion of 
applicants in certain applications also increase d the overall average time needed for risk assessment. 
On 11 October  2019, a draft authori zation1 for new GM maize had been  presented for a vote in the 
Appeal Committee with  a "no opinion " result. It was thereafter  for the European Commission to 
decide on this authori zation. During previous  DSB meetings, the United States had referred to what 
was known as the EU "opt-out Directive ". The EU wished to reiterate that the DSB 's 
recommendations and rulings in this dispute did not cover that "opt-out Directive ". During previous  
DSB meetings, the United States had also made certain references to the statement made by the 
EU Group of  Chief Scientific Advisors. The EU  wished  to clari fy that this statement focuse d on the 
future challenges for products obtained by new mutagenesis techniques. The statement d id not state 
nor imply that Directive 2001/18 would not be "fit for purpose " as regard ed "conventional GMOs ". 
The EU act ed in line w ith its WTO obligations. The EU also wished  to recall that the EU approval 
system was not covered by the DSB's recommendations and rulings  in this dispute . 
1.13.   The representative of the United  States  thank ed the European  Union for its status report and 
its statement made at the present meeting . The United  States continue d to see delays that affect ed 
dozens of applications that ha d been awaiting approval for an extended period. The EU suggest ed 
that the fault lie d with the applicants. The United  States disagree d; US concerns relate d to delays 
at every stage of the approval process which result ed from the actions or inaction of the EU and its 
member States. Even when the EU finally approve d a biotech product, EU member States  continue d 
to impose unwarranted restrictions on the supposedly approved product. As the United States  had 
noted at prior DSB meetings, the amendment of EU Directive 2001/18, through EU Directive 
2015/413, permit ted EU member States to restrict or prohibit  certain uses of genetically -modified 
organisms ( "GMOs "), even where the European Food Safety Authority ( "EFSA") had concluded that 
the product was safe. At least 17 EU member States, as well as certain regions within EU member 
States, ha d submitted requests to adopt such measures with respect to MON -810 maize. The EU 's 
only response was that the member States d id not restrict marketing or free movement of MON -810 
maize in the EU. This answer d id nothing to address US concerns. The restrict ions 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 maize were  
in breach of the EU 's WTO commitments. Th e 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 of the European Union  said that t he WTO Agreements d id not require full 
international harmoni zation and le ft some regulatory space or autonomy to individual WTO Members. 
The E U had different regulatory approaches to non -GMOs and GMOs but,  in all cases, such 
regulations d id not discriminate between imported and domestic like products. No EU member State 
had imposed any "ban" on the use of GMOs . Under the terms of the EU Directive  and relevant 
legislation , an EU member State c ould adopt measures restricting or prohibiting cultivation only 
when such measures were in line with EU law and were reasoned, proportional, non -discriminatory 
and based on compelling grounds. The free movement of seeds was embedded in Article 22 of 
Directive 2001/18/EC  which provide d that "Member States may not prohibit, restrict or impede the 
placing on the market of GMOs, as products or in products, which comply with the requirements of 
this Directive ." The EU  also wished to note that , according to the provi sions 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 
                                                
1 Maize Bt11 × MIR162 × MIR604 × 1507 × 5307 × GA21 . WT/DSB/M/43 6 
 
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 species include d 150 varie ties of maize MON -810, to which the United States ha d referred  in its 
statement under this Agenda item , and all of these varieties were allowed to be marketed in the EU. 
As of the present meeting , the European Commission ha d never received any complaint from seed 
operators or other stakeholders concerning the restriction of marketing of MON -810 seeds in the EU. 
This confirm ed the smooth functioning of the internal market of MON -810 seeds.  
1.15.   The DSB took note of the statements a nd agree d to revert to this matter at its next regular 
meeting.  
D. United  States – Anti-dumping and countervailing measures on large residential 
washers from Korea: Status report by the United  States (WT/DS464/17/Add.22)  
1.16.   The Chairman  drew attention to docu ment WT/DS464/17/Add.22, which contain ed the status 
report by the United  States on progress in the implementation of the DSB's recommendations in the 
dispute 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 October 2019, in accordance with Article 21.6 of the DSU. On 
6 May 2019, the US Department of Commerce had published a notice in the US Federal Register 
announcing the revocation of the anti -dumping and 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 options to address the DSB's recommendations relating to other measures challenged in 
this dispute.  
1.18.   The repre sentative of Korea  said that his country  wished to thank the United States for its 
status report. Korea again urge d the United States to take prompt and appropriate steps to 
implement the DSB 's recommendations for the "as such " measure in this dispute.  
1.19.   The representative of China  said that, a s a third party to the original proceeding in this 
dispute, his country  was very concerned that the United States continue d to fail to full y comply in 
this dispute.  Its protracted non -compliance, especially in various anti -dumping disputes, ha d become 
a systemic issue which should be a concern for the entire  Membership. Since  the United  States 
showed little will ingness  to bring its "as such " WTO-inconsistent anti -dumping measures into 
conformity, Members ha d no other choice but to flock to the dispute settlement system to relitigate 
already decided issues. This was not the way th e system was supposed to operate , according to 
what Members had agreed back in 1995. China  recall ed that Article 21.1 of the DSU explicitly set 
out the compliance obligation which should be unconditionally observed by all Members. China , 
therefore , urged the United States to faithfully implement the DSB's  recommendations and rulings 
in all of the disput es in which it was a defending party , including this one.  
1.20.   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 " was "as such " WTO-inconsistent. The United States had also ignored the DSB 's 
recommendation that the U nited States bring itself into compliance with its obligations. Instead, the 
United States continue d to apply the "as such " inconsistent differential pricing methodology in 
investigations with respect to foreign companies and continue d to collect cash deposits from fo reign 
exporters based on its inconsistent methodology. As a result, Canada had been forced to challenge 
the differential pricing methodology measure in the "US – Differential Pricing Methodology " dispute 
(DS534) and Viet Nam was currently doing the same in  the "US – Fish Fillets " dispute (DS536) . 
Before these Panels, the U nited States had simply re -litigated the WTO -consistency of its differential 
pricing methodology and ha d asked the Panels to ignore the Appellate Body 's findings. Canada 
remain ed deeply co ncerned with the continued US failure to comply with the DSB 's recommendations 
and rulings in this dispute. This failure seriously undermine d the security and stability of the 
multilateral trading system.  
1.21.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  WT/DSB/M/43 6 
 
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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.14)  
1.22.   The Chairman  drew attention to document WT/DS471/17/Add.14, which contain ed the status 
report by the United  States on progress in the implementation of the DSB's recommendations in the 
dispute concerning certain methodologies and their application to anti -dumping proceedings 
involving China.  
1.23.   The representative of the United  States  said that t he United States had provided a status 
report in this dispute on 17 October  2019, in accordance with Article 21.6 of the DSU. As explained 
in that report, the United States con tinued to consult with interested parties on options to address 
the DSB 's recommendations.  
1.24.   The representative of China  said that, o n 22 May 2017, the DSB had adopted the Appellate 
Body report and the Panel report , as modified by the Appellate Body report  in this dispute , which 
had found that certain measures taken by the United States were inconsistent with requirements of 
the Anti -Dumping Agreement, including: ( 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 s 6.10 and 9.2 ; and ( iii) the "adverse facts available " was a norm of general and prospective 
application which could be subject to future "as such " challenges. China was very disa ppointed that, 
more than two years after the DSB had adopted recommendations and rulings  in this dispute , and 
14 months after the expiry of the reasonable period of time, the United States continue d to fail to 
bring its WTO -inconsistent measures into confo rmity. As China had noted at prior DSB meetings, 
the status reports provided by the United States did not appear to be different from one another, 
and none could indicate any progress  on implementation . When China had sought the authorization 
to suspen d the concessions or other obligations in accordance with the DSU, rather than changing 
its course, the United States had chose n to further delay the resolution of this dispute by referring 
the matter to arbitration pursuant to Article 22.6 of the DSU . Without prompt and effective 
compliance, the WTO -inconsistent measures  taken by the United States  continue d to infringe China 's 
economic interests, distort ed international markets and undermine d the effectiveness of the dispute 
settleme nt system. While China was still waiting for concrete implementation from the United States, 
China  nevertheless st ood ready to take further action in accordance with WTO rules to safeguard its 
legitimate interests. Article 21.1 of the DSU clearly stated that: "[p]rompt compliance with 
recommendations or rulings of the DSB is essential in order to ensure effective resolution of disputes 
to the benefit of all Members ". China urged the United States to take concrete actions and to 
promptly implement the DSB 's recommendations and rulings in this dispute.  
1.25.   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.9 – WT/DS478/22/Add.9)  
1.26.   The Chairman  drew attention to document WT/DS477/21/Add.9 – WT/DS478/22/Add.9, 
which contain ed the status report by Indonesia on progress in the implementation of the DSB's 
recommendations in the dispute concerning importation of horticultural products, animals and 
animal products.  
1.27.   The representative of Indonesia  said that his country  had submit ted the present  report 
pursuant to Article 21.6 of the DSU. Indonesia wished  to refer to its status report made at the 
previous DSB meeting in relation to  the fact that it  had completed the enactment process of its new 
Minister of Agriculture and Minister of Trade Regulations regarding the importation of horticultural 
products, animals and animal products which were relevant to th ese dispute s. Regarding Measure 
18, the draft amendment s to the relevant laws along with their academic drafts  would be discussed 
with the President. However, Indonesia was currently in the process of transitioning to a new 
parliament as well as a new government administration. Indonesia w ould continue to engage with 
New Zealand and the United States regarding the DSB's  recommendations and rulings in these 
dispute s. 
1.28.   The repre sentative of New Zealand  said that New Zealand wished to thank Indonesia for its 
status report . New Zealand acknowledge d the steps that ha d been taken by Indonesia and 
Indonesia 's commitment to comply fully with the DSB's recommendations and rulings in this dispute . 
New Zealand noted that b oth of the compliance deadlines that had been  agreed between the parties WT/DSB/M/43 6 
 
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 had now expired. New Zealand was seriously disappointed that full compliance ha d still not been 
reached  and was particularly concerned about: the  failure to remove Measure 18; the continued 
enforcement of limited application windows and validity periods; harvest period import bans; import 
realization requirements; and restrictions placed on import volumes based on storage capacity. 
These matters , and others, continue d to adversely impact New Zealand exporters. Indonesia was 
yet to provide a clear explanation of how it w ould bring these measures into compliance, and the 
timelines for doing so. New  Zealand strongly encourage d Indonesia to take appropr iate steps, 
swiftly, to achieve long -term, commercially meaningful, compliance with the DSB's 
recommendations and rulings in this dispute . 
1.29.   The representative of the United  States  said that Indonesia continue d to fail to bring its 
measures into compliance w ith WTO rules.  The United States and New Zealand agree d that 
significant concerns remain ed with the measures at issue, including the continued imposition of: 
harvest period restrictions, import realization requirements, warehouse capacity requirements, 
limited application windows, limited validity periods, and fixed licensed terms.  The United States 
remain ed willing to work with Indonesia to fully and meaningfully resolve this dispute.  The 
United  States underst ood that Indonesia claim ed to have "completed its enactment process " of 
certain regulations, but it 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 planned 
changes to its regulations and laws.  
1.30.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
2  IMPLEMENTATION OF TH E RECOMMENDATIONS OF THE DSB  
A. Ukraine – Anti-dumping measures on ammonium nitrate  
B. Korea – Anti-dumping duties on pneumatic valves from Japan  
2.1.  The Chairman  recalled that , in accordance with the DSU, the DSB was required to keep under 
surveillance the implementation of the DSB's recommendations and rulings in order to ensure 
effective resolution of disputes to the benefit of all Members . In this respect, Article  21.3 of the  DSU 
provided that the Member concerned shall inform the DSB, within 30 days after the date of adoption 
of the panel or Appellate Body report, of its intentions in respect of implementation of the DSB's 
recommendations and rulings. He then proposed that th e two sub -items be considered separately.  
A. Ukraine – Anti-dumping measures on ammonium nitrate  
2.2.  The Chairman  recall ed that, at its meeting on 30 September 2019, the DSB had adopted the 
Appellate Body Report and the Panel Report, as upheld by the Appellate  Body Report , pertaining to 
the "Ukraine – Anti Dumping Measures on Ammonium Nitrate"  (DS493) dispute . He then  invite d the 
representative of Ukraine to inform the DSB of its intentions in respect of implementation of the 
DSB's recommendations.  
2.3.  The represen tative of Ukraine  said that, i n accordance with Article 21.3 of the DSU, Ukraine 
was ready to fully implement the DSB 's recommendations and rulings resulting from the Appellate 
Body Report and the Panel Report in this dispute, and to bring its anti-dumping measures into full 
conformity with Ukraine 's obligations under the GATT 1994 and the Agreement on Implementation 
of Article VI of the GATT 1994. Nevertheless , Ukraine had to follow all legal procedures required by 
its domestic law. Therefore,  Ukraine need ed a reasonable period of time to implement the DSB 's 
recommendations and rulings as it was necessary for Ukraine to: (i) amend its Law "On the 
Protection of National Producer s Against Dumped Imports " in order to be able to initiate a review o n 
the basis of the DSB 's recommendations ; and ( ii) conduct a review of its anti-dumping measures 
while taking into account the rulings of the Appellate Body and the Panel.  In accordance with 
Article  21.3(b) of the DSU , Ukraine st ood ready to engage in a constructive dialog ue in the coming 
weeks with a view to agree ing on a mutually satisfactory reasonable period of time.  WT/DSB/M/43 6 
 
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 2.4.  The representative of Russia  said that her delegation  wished to thank Ukraine for announcing  
its intention to comply with the DSB's recommendations and look ed forward to discussing with 
Ukraine the appropriate reasonable period of time for Ukraine's compliance.  
2.5.  The DSB took note of the statements, and of the information provided by Ukraine regarding its 
intentions in respect of implementation of the DSB's recommendations.  
B. Korea – Anti-dumping duties on pneumatic valves from Japan  
2.6.  The Chairman  recall ed that, at its meeting on 3 0 September 2019, the DSB had adopted the 
Appellate Body Report and the Panel Report, as modified by the Appellate Body Report, pertaining 
to the "Korea – Anti-Dumping Duties on Pneumatic Valves from Japan"  (DS504) dispute . He then  
invite d the representati ve of Korea to inform the DSB of its intentions in respect of implementation 
of the DSB's recommendations.  
2.7.  The representative of Korea  said that , on 30 September  2019, the DSB had adopted the Panel 
Report and the Appellate Body Report in this dispute . Korea welcome d the Appellate Body 's rulings 
that had, for the most part, upheld Korea 's position. However, Korea also recognize d that there were 
certain procedural matters and some methodological flaws in the investigating authority 's price effec t 
analysis that need ed to be addressed through proper implementation. Korea confirm ed its 
willingness to faithfully implement the DSB's recommendations and rulings in this dispute within a 
reasonable period of time , pursuant to Article 21 of the DSU. In ac cordance with Article 21.3(b) of 
the DSU, Korea w ould discuss this matter with Japan with a view to reaching an agreement on the 
reasonable period of time for implementation.  
2.8.  The representative of Japan  said that his country  welcome d Korea 's statement made at the 
present meeting , which inform ed the DSB of Korea's intention to implement the DSB's 
recommendations and rulings in a manner consistent with its WTO obligations. Under Article 21.3 of 
the DSU, "the requirement is immediate compliance " and "the reasonable period of time is a limited 
exemption from [this] obligation ".2 Thus, Japan f ound it regrettable that Korea c ould not  comply 
with the DSB 's recommendations immediately.  The Appellate Body in this dispute had ruled in favo ur 
of Japan with respect to nearly all of the issues raised in Japan's appeal, and had found Korea 's 
measure inconsistent with the Anti -Dumping Agreement. In particular, Japan 's core claims had 
included the lack of price comparability between Japanese valves with higher values and  functions, 
on the one hand, and Korean low -end domestic valves, on the other  hand. The Panel and the 
Appellate Body had accepted Japan 's core claims.  Japan urge d Korea to take the DSB 's 
recommendations and rulings seriously, to carefully examine the findings and reasoning of the Panel 
and the Appellate Body, and to take prompt action to bring its WTO -inconsistent anti -dumping 
measure into full compliance with its obligations. With a view to achieving full and prompt compliance 
and thus an effective and positive resolution of this dispute, Japan st ood ready to discuss this matter  
with Korea , including with respect to an appropriate reasonable period of time . 
2.9.  The representative of Korea  said that his country consider ed that nothing in the Panel Report 
or in the  Appellate Body Report suggest ed that the only way to implement the rulings was to 
withdraw the relevant measure in its entirety. As Korea had explained at the 30 September 2019 
DSB meeting, the Appellate Body's finding of inco nsistency was limited to some methodological flaws 
in the K orean Trade Commission 's price effect analysis and a procedural matter. It was simply 
incorrect to assert that the corollary of the methodological flaws with limited implications found by 
the Appellate Body was the complete termination of the current anti -dumping measure. Such a bold 
assertion would call for a fundamental change in t he notion under which Members implemented WTO 
rulings. That being said, the relevant Korean authority w ould re-open the case file in order to 
re-assess the original investigation in a manner consistent with the Appellate Body  rulings.  
2.10.   The representative of  Japan  said that, as Japan had explained in its previous statement  under 
this Agenda item , the Appellate Body in this dispute had ruled in favo ur of Japan with respect to 
nearly all of the issues raised in Japan's appeal . The Appellate Body and the Panel had accepted 
Japan 's core claims, which included the lack of price comparability between Japanese valves with 
higher values and functions, on the one hand, and Kore a's low-end domestic valves, on the other  
hand. In order to maintain the measu re at issue, Korea was required to persuasively explain that 
prices of Japanese imported valves, which were on average 1.5 to 2 times higher than those of 
Korean domestic valves, were still comparable. Such persuasive explanation could never be achieved 
                                                
2 Appellate Body Report, US – Zeroing (Japan) (Article 21.5 – Japan), para.157.  WT/DSB/M/43 6 
 
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 simply by picking some occasional individual import prices, which seem ed comparable with domestic 
prices, without due regard to similarities between  transactions such as dates and volumes. As Japan 
had stated, ensuring price comparability and providing adequ ate explanation s with respect to the 
continuous overselling by Japanese imports was crucial to the proper causation determination by 
Korea and , thus, the failure to do so constitute d a fundamental flaw in its investigations. Therefore, 
Japan  believed that  it was difficult to see how Korea c ould rectify this fundamental flaw simply by 
rewriting some part of its injury determination. The only and clearest way for Korea to implement 
the DSB's recommendations and rulings was to eliminate immediately its anti -dumping measures 
imposed on pneumatic valves from Japan.  
2.11.   The DSB took note of the statements, and of the information provided by Korea regarding its 
intentions in respect of implementation of the DSB's recommendations.  
3  UNITED STATES – CONT INUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE DSB  
A. Statement by the European Union  
3.1.  The Chairman  recalled that t his item was on the Agenda of the present meeting at the request 
of the European Union . He then invite d the representative of the European Union to speak.  
3.2.  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 
if the amounts had considerably decreased, the latest report from December 2018 still show ed that 
amounts were still being , in practice , disbursed. Every disbursement that still t ook place was clearly 
an act of non -compliance with the DSB's recommendations and rulings. As long as the United States  
did not fully stop transferring collected duties, the  present  item would rightly remain under the 
surveillance  of the DSB . Due to the long -standing na ture of this breach,  and as a matter of principle,  
the EU would continue to insist  in this respect , independent of 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 place this item  on the Agenda of the DSB as long as the United States had not fully 
implemented the WTO ruling and until the disbursements cease d comp letely.  
3.3.  The representative of Brazil  said that, as an original party to th is dispute , Brazil wished to 
thank, once again, the European Union for keeping this item on the Agenda  of the DSB . After more 
than 16 years since the  adoption of the DSB's recommendations in this dispute, and after more than 
13 years following  the adoption of the Deficit Reduction Act that had repealed the Byrd Amendment, 
anti-dumping and countervailing duties were still being disbursed to US domestic petitioners. Brazil 
called on the United States to comply fully the DSB 's recommendations and rulings in this dispute.  
3.4.  The representative of Canada  said that his country  wished to thank the European Union for 
placing this item on the Agenda of the DSB. Canada  agree d with the Eu ropean Union that the Byrd 
Amendment should remain subject to the surveillance of the DSB until the United States cease d to 
administer it.  
3.5.  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 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 
did not permit the distribution of duties collected 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 Agenda of the DSB . In May 2019, the EU had notified the DSB that disbursements 
related to EU exports to the United States had totalled US$ 4,660.86 in fiscal year 2018. As such, 
the EU had announced it would apply an additional duty of 0.001 percent – that is, one  
one-thousandth of a percent – on certain imports of the United States, including imports of sweet 
corn. These values were no doubt outweigh ed by the associated costs resulting from the application 
of these countermeasures – or the DSB 's taking up this Agenda item. With respect to the EU 's 
request for status reports in this matter, as the United States had already explained at previous DSB 
meetings, there was no obligation under the DSU to provide further status reports once a Member 
announce d that it ha d implemented the DSB 's recommendations, regardless of whether the 
complaining party disagree d about comp liance. The practice of WTO Members – including the WT/DSB/M/43 6 
 
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 European Union as a responding party – confirm ed this widespread understanding of Article 21.6  of 
the DSU . 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 provide in a status report.  
3.6.  The DSB took note of the statements.  
4  EUROPEAN COMMUNITIES  AND CERTAIN MEMBER STATES – MEASURES AF FECTING 
TRADE IN LARGE CIVIL  AIRCRAFT: IMPLEMENT ATION OF THE RECOMME NDAT IONS 
ADOPTED BY THE DSB  
A. Statement by the United States  
4.1.  The Chairman  said that this 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.  
4.2.  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 " (DS316)  dispute . 
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 did not agree with another 
responding party Member 's "assertion that it has implemented the DSB ruling ", "the issue re mains 
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 disagree d that the EU ha d complied. At 
recent DSB meetings, the EU had attempted to reconcile this view with the EU 's long -standing, 
contrary position. The EU argue d that the situation in the "US — Offset Act (Byrd Amendment)" 
dispute  differed from that in the "EC – Large Civil Aircraft" (DS316) dispute because, in the 
"US - Offset Act (Byrd Amendment)"  dispute , the dispute ha d been adjudicated and there were no 
further proceed ings pending. With its statement made  at the 30 September 2019 DSB meeting, the 
EU ha d said there was no significance to the fact that there were no current proceedings in the "US 
— Offset Act (Byrd Amendment)" dispute , and the EU had concede d what the United States ha d 
been explaining during the past months – the issue of compliance in the "US — Offset Act (Byrd 
Amendment)" dispute  had not been adjudicated. The United States had repealed the Continued 
Dumping and Subsidy Offset Act of 2000 measure after all of the proceedings in the dispute, and 
the EU ha d not brought a challenge to the US claim of compliance. This mean t that the EU 's position 
had been reduced to 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 ". At the 30 September 2019 DSB meeting, the EU had phrased 
this as "the crucial point for the defending party 's obligation to provide status reports to the DSB is 
the stage of the dispute. In the Airbus dispute , the dispute is at a stage where the defending party 
does not have an obligation to submit status reports to the DSB ". 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. Second, the EU once again relie d on its incorrect assertion that the 
EU's initiation of compliance pan el 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 limit ed the DSB 's authority in this 
manner. It was another invention of the EU. The EU should be providing a status report. Yet it ha d 
failed to do so, demonstrating the inconsistency in the EU 's position depending on its status as 
complaining or responding party. The US position ha d been co nsistent and clear: under Article 21.6 
of the DSU, once a responding Member provide d the DSB with a status report that announce d 
compliance, there was no further "progress " on which it c ould report , and therefore no further 
obligation to provide a report. But as the EU allegedly disagree d with this position, it should for 
future meetings provide status reports in  the "EC – Large Civil Aircraft" (DS316) dispute.  
4.3.  The representative of the European Union  said that t he United States had expressly stated 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 EU disagree d with this assertion 
of the United States . As the EU ha d repeatedly explained in past  DSB meetings, the crucial point for 
a defending party 's obligation to provide status reports to the DSB was the stage of the dispute. In 
this dispute , the dispute was at a stage where the defending party d id not have an obligati on to 
submit status reports to the DSB. The EU wished to remind Members  that in the "EC – Large Civil 
Aircraft" dispute (DS316) , the EU had notified to the WTO a new set of measures in a compliance 
communication which had been  tabled at the 28 May 2018 DSB meeting. The U nited States had 
responded that the measures included in that communication did not bring the EU in full compliance WT/DSB/M/43 6 
 
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 with the DSB's recommendations and rulings. In light of the  position  of the United States , on 
29 May 2018, the EU had requested consultations with the United States, under Articles 4 and 21.5 
of the DSU. These consultations had failed to resolve the dispute. Consequently, the EU had asked 
for the establishment of a compliance panel , which had been  established by the DSB o n 
27 August  2018. That compliance Panel was currently reviewing "the existence or consistency with 
a covered agreement of measures taken to comply with the recommendations and rulings " of the 
DSB. Therefore, there was a compliance proceeding still on -going  in this dispute. Whether or not the 
matter was "resolved " in the sense of Article 21.6  of the DSU  was the very subject matter of this 
on-going litigation. The EU asked how it could be said that the defending party should submit "status 
reports " to the DSB  in these 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, whi le dispute 
settlement proceedings on that precise issue were on-going. The view of the EU was further 
supported by Article 2 of the DSU on the administration of the dispute settlement rules and 
procedures: where, further to the disagreement between the parties on compliance, a matter was 
with the adjudicators, it was temporarily taken out of the s urveillance  of the DSB . 
4.4.  The DSB took note of the statements.  
5  STATEMENT BY THE UNI TED STATES CONCERNIN G ARTICLE 6.2 OF THE  
UNDERSTANDING ON RUL ES AND PROCEDURES GO VERNING THE SETTLEME NT OF 
DISPUTES  
5.1.  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.  
5.2.  The representative of the United States  said that t he United States had requested this Agenda 
item regarding an important issue, the incorrect legal interpretation by the Appellate Body of 
Article  6.2 of the DSU3, which state s in relevant part that a panel request shall "provide a brief 
summary of the legal basis of the complaint sufficient t o present the problem clearly ". In this 
statement, the United States w ould explain that the Appellate Body ha d added a requirement for 
the legal basis of a panel request that d id not appear in the text. Specifically, the Appellate Body 
had imposed a requir ement to explain "how or why the measure at issue is considered by the 
complaining Member to be violating the WTO obligation in question ".4 This incorrect interpretation 
had made disputes more complicated by encouraging procedural challenges. That procedur al 
complexity, in turn, result ed in delays in proceedings and create d significant uncertainty for the 
parties to the dispute. This issue thus affect ed every WTO Member that was a party to a dispute, or 
considering whether to bring a dispute, and could affect third parties as well.  
5.3.  The United States said that the Appellate Body 's erroneous interpretation  had practical effects . 
This was not an abstract issue; rather, it ha d effects on every dispute and had recently affected the 
outcome of one dispute. As Members might be aware, this issue had come up at the 
30 September  2019 DSB meeting. Members had considered an appellate report in the "Korea – 
Pneumatic Valves " dispute (DS504) that vividly demonstrate d the consequences of the Appellate 
Body's incorrect legal interpretation. In that dispute, the panel had found that certain claims in 
Japan 's panel request had been outside the panel's terms of reference. The panel had explicitly 
reached this conclusion because it had found that the panel re quest had not adequately explain ed 
"how or why " the challenged measure had been inconsistent with the legal provisions Japan had 
identified, namely certain claims under Articles 3.1, 3.2, 3.4, 3.5, 4.1, 6.9, 12.2 and 12.2.2 of the 
Anti-Dumping Agreement as  well as Article VI of the GATT 1994.5 In making these findings that 
Japan 's panel request had not brought these claims within the scope of the dispute, the panel had 
stated that it had been following its understanding of the Appellate Body 's approach in p rior disputes. 
This had generated appeals. Despite the fact that the panel had thought it had been doing what the 
Appellate Body had said to do, the appellate report had reversed  the panel and had found that claims 
rejected by the panel had been, in fact , within  the panel's terms of reference. The appellate report 
had stated that : "the reference to the phrase 'how or why ' in certain past disputes does not indicate 
a standard different from the requi rement that a panel request include a 'brief summary of the legal 
                                                
3 Understanding on Rules and Procedures Governing the Settlement of Disputes ( "DSU"). 
4 EC – Selected Customs Matters (AB), para. 130; China – Raw Materials (AB), para. 226; US – 
Countervailing Measures (China) (AB), para. 4.9.  
5 See Pane l Report , Korea – Anti-Dumping Duties on Pneumatic Valves from Japan (WT/DS504/R), 
para. 8.1. WT/DSB/M/43 6 
 
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 basis … sufficient to present the problem clearly ' within the meaning of Article 6.2 of the DSU ".6 The 
appellate report had then indicated that, in a number of instances, it had been unable to complete 
the analysis of the claims. The result was that a number of claims Japan had validly presented in 
the panel request had not been resolved due to the incorrect interpretation of Article 6.2  of the DSU . 
5.4.  The United States said that the Appellate B ody's interpretation was erroneous and  contrary to 
Article 6.2 of the DSU . When the DSB had considered the appellate report for adoption, the 
complaining Member had highlighted that a panel 's erroneous decision not to rule on the key issues 
on a jurisdictional ground undermine d a primary objective of the dispute settlement system. Another 
Member had stated that it had agreed "with the AB statement that '[s]pecifically, the reference to 
the phrase 'how or why ' in certain past disputes does not indi cate a standard different from the 
requirement that a panel request include a 'brief summary of the legal basis … sufficient to present 
the problem clearly '" even while acknowledging that this "was at the heart of the Panel 's reasoning ".7 
So while some Mem bers ha d welcomed the Appellate Body 's statement that the "how or why " 
approach had not been intended to change the legal standard in Article 6.2  of the DSU , in effect this 
Appellate Body approach had done so. The United States r ecalled that the panel had thought it was 
faithfully applying the Appellate Body 's "how" or "why" interpretation. The panel's regrettable, but 
understandable, error only confirm ed that the Appellate Body 's "how" or "why" interpretation had 
been incorrect, that it had added an element beyond what was required under Article 6.2  of the 
DSU, and that it had created uncertainty and confusion for the dispute. The erroneous "how" or 
"why" interpretation by the Appellate Body had not been inadvertent. I n at least three prior appeals, 
the Appellate Body had departed from the text of Article 6.2 and had imposed this additional 
requirement for panel requests – that is, the element of "how or why " a measure was inconsistent 
with a provision cited by the comp laining party .8 The relevant text of Article 6.2 was that a panel 
request "shall indicate whether consultations were held, identify the specific measures at issue and 
provide a brief summary of the legal basis of the complaint sufficient to present the pro blem clearly ". 
Neither "how" nor "why" appear ed in Article 6.2. Instead, in order to provide the brief summary 
required by Article 6.2, it was sufficient for a complaining Member to specify in its panel request the 
legal claims under the WTO provisions wit h respect to the identified measures. Not surprisingly, by 
imposing a "how or why " requirement beyond Article 6.2  of the DSU , the Appellate Body 's 
interpretation ha d provoked more litigation. Responding parties ha d used the "how or why " approach 
to raise c hallenges against a panel 's terms of reference in at least 16 proceedings. Over the past 
two years, over 30  percent  of panel reports had addressed Article 6.2 and the Appellate Body 's 
incorrect element of "how or why ". These challenges were not because the panel request had failed 
to identify the measure at issue or the legal basis for bringing the dispute. Rather, responding parties 
had argued that the Appellate Body 's "how or why " approach require d complaining parties to do 
something more. They argue d that the complaining party had to  include in a panel request the 
arguments  that the complaining party would present to the panel regarding each claim of an 
inconsistency with a provision of a covered agreement. And some panels, following the Ap pellate 
Body's error, ha d agreed with responding parties. But the DSU was clear that a panel request d id 
not need to include arguments. Instead, the complaining party 's arguments were to be made in the 
submissions, oral statements, and other filings with a  panel .9 Some panels had thus understood the 
"how or why " approach to require that panel requests go above and beyond what was required under 
the DSU. Before the Appellate Body  had read into Article 6.2  of the DSU  the requirement to explain 
"how" or "why" a measure was inconsistent, this provision had never been understood this way. It 
was notable that the text for Article 6.2 of the DSU had been drawn from, and d id not differ materially 
from, the 1989 GATT Decision on Improvements to the GATT Dispute Settl ement Rules and 
Procedures. These "Montreal Rules " had provided: "The [panel request] shall indicate whether 
consultations were held, and provide a brief summary of the factual and legal basis of the complaint 
sufficient to present the problem clearly ".10 The fact that the Article 6.2 language came from the 
Montreal Rules suggest ed that its incorporation in the DSU had not been meant to change the 
standard that would be applied to panel requests. Panel requests subsequent to the Montreal Rules 
had not include d an explanation of "how or why " the measure at issue had been  inconsistent with 
                                                
6 Korea – Pneumatic Valves (DS504), para. 5.12.  
7 https://eeas.europa.eu/delegations/world -trade-organization -wto/68177/eu -statement -regular -dsb-
meeting -%E2%80%93 -30-september -2019_en . 
8 EC – Selected Customs Matters (AB), para. 130; China – Raw Materials (AB), para. 226; US – 
Countervailing Measures (China) (AB), para. 4.9.  
9 See, e.g., DSU Appendix 3, para. 4: "Before the first substantive meeting of the panel wi th the parties, 
the parties to the dispute shall transmit to the panel written submissions in which they present the facts of the 
case and their arguments ". 
10 GATT, Improvements to the GATT Dispute Settlement Rules and Procedures, Decision of 
12 April 1989, L/6489, 13 April 1989, Section F(a) ( "Montreal Rules "). WT/DSB/M/43 6 
 
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 the GATT 1947 provision at issue. Rather, GATT panel requests had identified the relevant GATT 
legal provision, or one of its obligations. The practice of Contrac ting Parties under the GATT 1947 
with respect to panel requests , therefore , also demonstrate d that the "how or why " approach was 
in error.  
5.5.  The United States said that the Appellate Body's erroneous interpretation introduced 
complexity, delay  and expense s and undermined the dispute settlement system . The United States 
said that, b y creating this "how or why " approach, the Appellate Body ha d encouraged responding 
parties to engage in procedural arguments as well as preliminary ruling requests, and at least 
four appeals. In turn, these ha d added to the complexity, length, and expense of dispute settlement, 
including additional burdens on complaining parties and third parties. The difficulties arising from 
the "how or why " approach ha d been further aggravated by  the Appellate Body 's approach to "cogent 
reasons ", which the United States  had discussed at prior DSB meetings. The "cogent reasons " 
approach mean t that panels ha d not looked to the text of Article 6.2 of the DSU in reviewing terms 
of reference challenges. Instead, as in the "Korea – Anti-Dumping Duties on Pneumatic Valves from 
Japan" (DS504)  dispute , some  panels  had relied upon and had followed appellate reports ad vancing 
the erroneous "how" or "why" interpretation. In the most recent appellate report, the Appellate Body 
appear ed to have sought to back away from the "how" or "why" approach by reversing the panel 
report. However, while the United States welcome d the recognition that the panel had erred by 
applying the "how or why " approach, the appellate report had not explicitly disavow ed that approach. 
This might have been an instance where the Appellate Body ha d determined that an earlier Appellate 
Body interpretat ion had been incorrect but for whatever reason the Appellate Body was not willing 
to state that explicitly. The problem was that this le ft Members and panels confused as to what 
approach prevail ed and therefore which approach to follow. To the United States, the text of the 
DSU prevail ed. Neither "how" nor "why" appear ed in Article 6.2  of the DSU ; therefore, this "how" or 
"why" approach was not rooted in the text of the DSU. The United States stron gly believe d that 
adherence to the text of the DSU and all the WTO agreements was necessary to maintain Members ' 
confidence that the agreements they ha d reached w ould be respected and to maintain the 
effectiveness of the dispute settlement system.  
5.6.  In concl usion, the United States said that the Appellate Body in its reports ha d added a 
requirement for the legal basis of a panel request that did not appear in the text of the DSU. 
Specifically, through its interpretation of Article 6.2  of the DSU , the Appellat e Body ha d imposed a 
requirement to explain "how or why " a measure was inconsistent with a provision cited by the 
complaining party. This incorrect interpretation ha d real, practical effects. It ha d made disputes 
more complicated by encouraging procedural challenges , which in turn result ed in delays in 
proceedings and significant uncertainty for Members who were, or could be, parties to a dispute. 
While the Appellate Body recently appear ed to have attempted to back away from this approach, it 
had done so in  a manner that create d confusion and more uncertainty, without any assurance that 
the difficulties that ha d been identified w ould be alleviated. This was yet another instance 
demonstrating that the panels and the Appellate Body need ed to follow the text that Members ha d 
agreed to, rather than departing from that text and undermining the WTO dispute settlement 
system.  
5.7.  The representative of Japan  said that his country  wished to thank the United States for its 
statement made at the present meeting . Japan agree d that the phrase "how or why ", referred to in 
some of the past Appellate Body reports , had no basis in the text of Article 6.2 of the DSU and , 
hence , did not create a legal standard different  than the text of this provision. In this regard, the 
Appellate Body in  the "Korea – Pneumatic Valves " dispute  (DS504) had correctly clarified that "the 
use of the phrase 'how or why ' in these cases does not imply a n ew and different legal standard for 
complying with the requirements of Article 6.2 of the DSU ".11 Moreover, Japan was sympathetic with 
the concern expressed by the United States that certain prior panels and certain Members had 
misunderstood the phrase "how or why ", which ha d added  unnecessary complexity to disputes by 
encouraging procedural challenges and which had created significant uncertainty for parties to a 
dispute. In particular, when a panel erroneously use d the terms  "how or why " as an additional 
requirement divorced from the text of Article 6.2  of the DSU , it left certain matters unresolved, thus 
undermining one  of the objectives of the DSU to "achiev[e] a satisfactory settlement of the matter 
in accordance with the rights and obligations under " the DSU. As the Appellate Body Report in  the 
"Korea – Pneumatic Valves " dispute (DS504) emphasize d: "the reference to t he phrase 'how or why ' 
in certain past disputes does not indicate a standard different from the requirement " set out in the 
                                                
11 Appellate Body Report, Korea – Pneumatic Valves, para.5.7.  WT/DSB/M/43 6 
 
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 text of Article 6.2  of the DSU .12 The Appellate Body 's clarification had fully reflected the arguments 
put forward by Japan in the appellate proceedings in that dispute .13 When called on to examine the 
terms of reference, panels had to faithfully follow and apply the legal standard set out in Article 6.2  
of the DSU . Japan again thank ed the United States for raising this matter of systemic importance.  
5.8.  The representative of Canada  said that his country wished to thank the United States for its 
statement regarding Article 6.2 of the DSU, and for sharing its views on the Appellate Bo dy's 
treatment of this issue in  the "Korea – Pneumatic Valves " dispute (DS504).  To comply with 
Article  6.2, a panel request had to "identify the specific measures at issue ", and "provide a brief 
summary of the legal basis of the complaint sufficient to present the problem clearly ". These 
requirements play ed a critical role in the conduct of any dispute settlement proceeding. They 
instruct ed Members on how to frame their panel requests, thereby determining the scope of the 
panel's jurisdicti on. They also serve d an important due process objective, in helping the respondent 
understand the nature of the complaint against it sufficiently in advance to enable the latter to 
prepare a defence. Regarding the obligation to identify with sufficient cla rity the legal basis of the 
complaint, Canada agree d with the Appellate Body that the panel request had to "plainly connect " 
the measure(s) with the provision(s) of the covered agreements that the complaining party claim ed 
to be infringed .14 Canada also agr eed that, while, at a minimum, a panel request had to identify the 
specific provision(s) claimed to have been violated, there could  be circumstances in which merely 
identifying those provisions would not satisfy the legal standard in Article 6.2 .15 For example, if a 
provision include d multiple obligations, rather than a distinct obligation, the request might need to 
indicate which of those obligations provide d the basis for the claim of a violation in order to meet 
the legal standard contained in Article 6.2  of the DSU .16 Ultimately, however, the question of whether 
the mere listing of a WTO provision was sufficient for the purposes of meeting this legal standard 
had to be examined on a case -by-case basis. Such an examination  also had to take into con sideration 
the important due process objective of Article 6.2, including whether the ability of a respondent to 
defend itself had been prejudiced by the simple listing of the provisions alleged to have been 
breached .17 The A ppellate Body had made  it very cl ear that the DSU d id not require that arguments 
be included in a panel request. The Members kn ew how to proceed  in this regard . To this end, 
Canada  encourage d WTO Members to exercise restraint in making claims under Article 6.2 by limiting 
such claims to disputes in which there was a real risk of material prejudice to a Member 's ability to 
defend its measures.  
5.9.  The representative of China  said that his country wished to thank the United States for placing 
this item on the DSB  Agenda . Article 6.2 of the DSU play ed a pivotal role in WTO dispute settlement 
proceedings. It created  an important threshold regarding  panel request s and serve d a dual function . 
First, it helped establish the terms of reference of a panel which delimit ed the scope of jurisdiction 
over a dispute . Second, it fulfilled a due process objective by providing adequate notice to the 
respondent as well as to the third parties regarding the nature of a dispute. To meet the 
requirements set out in Article 6.2 of the DSU, among other things, a panel request had to identify 
the specific measures at issue and to provide a brief summary of the legal basis sufficient to present 
the problem clearly. China had recognized that, over the years, panels and the Appellate Body ha d 
developed jurisprudence on this important matter . For instance, the degree of specificity required 
for identifying the measure at issue had to be assessed on a case -by-case basis18, and a brief 
summary of the legal basis of the complaint was require d to ex plain succinctly how or why the 
measure at issue was considered to be violating the WTO obligation s at issue.19 China also wished 
to note that, in recent years, it appear ed to be a general practice for Members to request for 
preliminary rulings on the confo rmity of a p anel request with respect to the requirements set out in 
Article 6.2 of the DSU. Against that backdrop, the importance of the jurisprudence regarding  
Article  6.2 could not be underestimated. Notably, by clarifying and facilitating the understan ding of 
the threshold set out in Article 6.2, WTO adjudicators remain ed very conscientious regarding the 
jurisprudence they had developed. For example, a recently adopted Appellate Body report explicitly 
                                                
12 Appellate Body Report, Korea – Pneumatic Valves, para.5.12.  
13 As affirmatively noted by the Appellate Body, "Japan argues that the Panel improperly relied on the  
phrase 'how or why ' used by the Appellate Body in certain disputes to create 'its own arbitrary standard ' 
requiring a complainant 'to show not only a 'claim', but also the 'argument ' in support of that claim '". Appellate 
Body Report, Korea - Pneumatic Valves, para.5.22.  
14 Appellate Body Reports, Korea – Pneumatic Valves (Japan), para. 5.9.  
15 Appellate Body Reports, Korea – Pneumatic Valves (Japan), para. 5.9 and Korea – Dairy, para. 14.  
16 Appellate Body Reports, China – Raw Materials, para. 220.  
17 Appellate Body Report, Korea – Dairy, para. 127.  
18 Appellate Body Report, US – Carbon Steel, para. 127.  
19 Appellate Body Report, EC – Selected Customs Matters, p ara. 130.  WT/DSB/M/43 6 
 
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 stated that "the reference to the phrase 'how or why ' in certain past disputes does not indicate a 
standard different from the requirement that a panel request include a 'brief summary of the legal 
basis … sufficient to present the problem clearly ' within the meaning o f Article 6.2 of the DSU ".20 In 
other words, this jurisprudence simply  serve d as a useful analytical tool to distinguish relevant 
nuances relate d to the interpretation of Article 6.2  of the DSU  which provide d security and 
predictability to Members as provid ed for in Article 3.2 of the DSU. At the present meeting , China 
had heard various comments from Members on this important Article which re flected Members' 
collective interests in maintaining and further improving the current dispute settlement system. 
Having said so, Members had to keep this objective in sight during their discussion s. While the 
viability of the existing two -tier system was facing an unprecedented threat,  and rather than 
exchanging on rhetoric t hat would  distract and divert Members from solving this most urgent matter, 
it was important to recall that the priority of Members should be to discuss what concrete actions 
should be taken to unblock the AB selection  processes without further delay.  
5.10.   The represent ative of Mexico  said that her country wished to thank the United States for 
including this item on the Agenda  of the DSB . Article 6.2 of the DSU set out two obligations: (i) to 
identify the specific measures at issue; and (ii) to provide a brief summary of  the legal basis of the 
complaint sufficient to present the problem clearly. These two elements constitute d the terms of 
reference of the panel and were relevant in establishing its jurisdiction , but they also fulfil led a due 
process objective  by providing  the respondent and third parties with sufficient information on the 
nature of the complainant's arguments to enable them to respond accordingly. Mexico agree d with 
the interpretation of the Appellate Body that, in assessing whether a panel request was sufficiently 
precise to comply with Article 6.2 of the DSU, panels had to carefully scrutinize the panel request, 
read as a whole, and on the basis of the language used therein. Moreover, a panel "must determine 
compliance with Article 6.2 on the face of the panel request as it existed at the time of filing". The 
Appellate Body 's finding that the mere listing of articles in a panel request could be insufficient to 
meet the standard in Article 6.2 of the DSU had generally arisen in instances where  the provision  at 
issue contain ed multiple and different obligations. Mexico believe d that the obligation under 
Article  6.2 of the DSU was clear with regard to the requirements for submi tting a panel request.  
5.11.   The DSB took note of the statements.  
6  INDIA – ADDITIONAL DUTIES ON C ERTAIN PRODUCTS FROM  THE UNITED STATES  
A. Request for the establishment of a panel by the United States  (WT/DS58 5/2) 
6.1.  The Chairman  recalled  that the DSB had considered this matter at its meeting on 
30 September  2019 and had agreed to revert to it, should a requesting Member wish to do so. He 
then drew  attention to the communication from the United States contained in document 
WT/DS585/2 and invite d the representative of the United States to speak.  
6.2.  The representative of the United States  said that t he United States ha d explained that the US 
actions taken on imports of steel and aluminium  pursuant to Section 232 were to address a threat 
to its national security. Every sovereign ha d the right to take action it consider ed necessar y for the 
protection of its essential security.  This inherent right had not been forfeited in 1947 with the GATT 
or in 1994 with the creation of the WTO. Instead, this right had been enshrined in Article XXI of the 
GATT 1994. The actions of the United States were completely justified under th at Article. What 
remain ed inconsistent with the WTO Agreement, however, was the unilateral retaliation against the 
United States by various WTO Members including India. These Members pretend ed that the US 
actions under Section 232 were so-called "safeguards ", and claim ed that their unilateral, retal iatory 
duties constitute d suspension of substantially equivalent concessions under the WTO Agreement on 
Safeguards.  Just as these Members appear ed to be ready to undermine the dispute settlement 
system by ignoring the plain meaning of Article XXI and 70 ye ars of practice, so too were they ready 
to undermine the WTO by pretending to follow its rules while imposing measures that blatantly 
disregard ed them.  The additional, retaliatory duties were nothing other than duties in excess of 
India's WTO commitments a nd were applied only to the United States, contrary to India 's 
most-favoured-nation obligation. The United States would not permit its businesses, farmers, and 
workers to be targeted in this WTO -inconsistent way.  For these reasons, the United States reques ted 
that the DSB establish a panel to examine this matter , with standard terms of reference.  
                                                
20 Appellate Body Report, Korea - Pneumatic Valves, Para.5.12.  WT/DSB/M/43 6 
 
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 6.3.  The representative of India said that India was disappointed that the United States ha d chosen 
to move forward with its second request for the establishment of a panel against India's measures 
concerning additional duties on certain products from the United States. As India had explained in 
its statement made at the 30 September 2019 DSB mee ting in response to the US request for the 
establishment of a panel, the measures at issue in this dispute were consistent with Article XIX:3(a) 
of the GATT 1994 and Article 8 of the Agreement on Safeguards . India's measures in this dispute 
were a permitte d and proportionate response to the measures adopted by the United States  pursuant 
to Section 232 regarding  steel and aluminium products. India consider ed that the Section 232 
measures on steel and aluminium products imposed by the United States were nothing but safeguard 
measures to protect the United States' domestic industry disguised in the garb of national security . 
Further, India had provided ample time to the United States to resolve issues concerning its Section 
232 measures, but the United States had not agree d to any positive solution . As a result, India had 
been constrained to impose additional duties to suspend concessions and other obligations referred  
to in Article 8.2 of the Agreement on Safeguards. India's re -balancing measures were in direct 
response to the unwarranted restrictions imposed by the United States against Indian steel and 
aluminium exports. India was committed to remov ing its re-balancing measures as soon as the 
United States had remove d its illegal tariffs against India n steel and aluminium products. India would 
rigorously defend the measures at issue and was confident that it would prevail in this dispute.  
6.4.  The representative of the European Union  said that his delegation had made a statement in 
relation to the first pan el request made by  the United States in this dispute at the 
30 September  2019 DSB meeting. The EU had also touched upon the same overall subject multiple 
times in the past year in connection with panel requests  that had been  submitted by the U nited 
States in relation to other WTO Members (besides India) and their respective suspensions of 
concessions . The latter came  in response to the US safeguard measures on steel and aluminium. In 
reaction to the statement  of the United States  during  the 30 Septemb er 2019 DSB meeting , the EU 
wished to stress that the United States remain ed wrong in suggesting that Article XIX of the GATT 
and the Safeguards Agreement were not relevant to the US actions under Section 232 of their 
domestic legislation , and that those a ctions, as national security actions, were fully justified under 
Article XXI of the GATT. The EU insist ed that the US measures , objectively speaking , were safeguards 
and that other WTO Members therefore ha d the right to suspend GATT obligations. The EU loo ked 
forward to continuing to defend , before the established panels, its right and the right of other WTO 
Members , including India, to suspend equivalent obligations. Likewise , the EU fe lt committed to keep 
defending the rules -based multilateral trading sys tem. 
6.5.  The representative of China  said that,  as his country  had noted at prior DSB meetings, this 
dispute relate d to a WTO Member 's re-balancing measures in response to Section 232 measures , 
which were indeed disguised safeguard measures adopted by the United States. China recall ed that 
nine Members ha d initiated  dispute settlement proceedings regarding these Section 232 measures 
and that seven panels were currently scrutinizing the matter. The unprecede nted number of 
complaints could suggest a general opposition against US unilateralism. As one of the 
co-complain ants regarding this same matter, China support ed other Members who wished to 
safeguard their legitimate interests by adopting re-balancing measures in accordance with WTO 
rules.  
6.6.  The representative of the United States  said that India's approach for the retaliatory action at 
issue ma de clear that, like the United States, it d id not consider the Safeguards Agreement to be 
applicable in this dis pute. For example, India ha d not addressed whether its action was in response 
to an alleged "safeguard " taken as a result of an absolute increase in imports. If there had been  an 
absolute increase, the right to suspend substantially equivalent concessions under the Safeguard s 
Agreement could not be exercised for the first three years of the safeguard measure. The 
United  States d id not understand how India c ould claim to be following the Safeguards Agreement 
without actually following what the Safeguards Agr eement sa id. There was no doubt that Article XIX 
of the GATT 1994 could be invoked by a Member to depart temporarily from its commitments in 
order to take emergency action with respect to increased imports. The United States, however, was 
not invoking Arti cle XIX as a basis for its Section 232 actions and ha d not utilized its domestic law 
on safeguards. Thus, Article XIX and the Safeguards Agreement were not relevant to the US actions 
under Section 232.  Because the United States was not invoking Article XIX , there was no basis for 
another Member to pretend that Article XIX should have been invoked and to use safeguards rules 
that were simply inapplicable.  
6.7.  The DSB took note of the statements and agree d to establish a panel in accordance with the 
provisions of Article 6 of the DSU with standard terms of reference.  WT/DSB/M/43 6 
 
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 6.8.  The representatives of Brazil , Canada , China , the European Union , Guatemala , Japan , Malaysia , 
Mexico , Norway , the Russian Federation , Singapor e, Switzerland , Chinese Taipei , Turkey , Ukraine  
and the Bolivarian Republic of Venezuela  reserved their third -party rights to participate in the Panel's 
proceedings.  
7  MOROCCO – DEFINITIVE  ANTI -DUMPING MEASUR ES ON SCHOOL EXERCIS E BOOKS 
FROM TUNISIA  
A. Request for the establishment of a panel by Tunisia (WT/DS578/2)  
7.1.  The Chairman  recalled  that the DSB had considered this matter at its meeting on 
30 September  2019 and had agreed to revert to it, should a requesting Member wish to do so. He 
then drew attention to the communication from Tunisia contained in document WT/DS578/2 and 
invite d the representative of Tunisia to speak.  
7.2.  The representative of the Tunisia  said that h er delegation  had addressed a communication , 
dated 19 September 2019 , to the DSB requesting the establishment of a panel to examine the 
matter of definitive anti -dumping measures taken by Morocco on school exercise books from Tunisia. 
Tunisia, once again, req uested the establishment of a panel after Morocco had opposed the 
establishment of a panel at the 30 September 2019 DSB meeting. Tunisia wishe d to note that 
consultations regarding this dispute had taken  place on 11 and 12 June 2019 at the WTO. Ahead of  
these consultations, Tunisia had submitted a questionnaire to Morocco with 71 questions on the 
allegations listed in Tunisia's request for consultations dated 27 February 2019. The parties had 
addressed mo st of these questions during these consultations and had then held a committee  
meeting in order to find a mutually satisfactory solution to this dispute. However, these exchanges 
had not led to a settlement of this dispute. Tunisia  believed that  discussion s during the consultations  
had seemed to confirm that the concerns of Tunisia were well-founded as regard ed anti-dumping, 
the initiation of the investigation, the analysis of the dumping, injury and the causal link, as well as 
regarding the procedu re. Thus, Tunisia had decided to bring this dispute before a panel. In light of 
past experience with Morocco, its brother country, this was the option that would best protect the 
legal interests of Tunisia since the dispute ha d not been resolved through direct exchanges between 
the two countries. Tunisia, once again, request ed that the DSB establish  a panel to examine  this 
matter . Tunisia wished to note that this request was without prejudice to the right of the parties to 
ask for  good offices, conciliation or mediation under Article 5 of the DSU.  
7.3.  The representative of Morocco  said that his delegation wished to express  strong regret at 
Tunisia 's decision to, once again, request the establishment of a panel in this dispute regarding 
anti-dumping m easures on school exercise books from Tunisia. Morocco believe d that these 
measures were applied in accordance  with its obligations under Article VI of the GATT 1994 and the 
Agreement on Implementation of Article VI of the GATT 1994 . As Morocco had indicated to Tunisia 
during  prior exchanges with regard to this dispute , the matter at hand was limited to technical 
aspects which should not have led to a formal dispute  at the WTO . During the consultations, Morocco 
had showed flexibility and had proposed constructive and equitable solutions in order to resolve this 
dispute. Morocco  wished to underscore that the allegations  made  by Tunisia touch ed on the ability 
not only of Morocco's anti-dumping authorities , but also of similar authorities  of other developing 
countries , to defend themselves  in the future against distortion s caused by larger trading partners. 
Given Morocco's willingness to continue to address this dispute through amicable negotiations and 
to avoid litigious matters, Morocco cou ld not accept the establishment of a panel at the present 
meeting , and hope d that both parties could have more time to find a mutually satisfactory solution 
to this matter and to resolve it on an amicable basis. Morocco underscore d that, between the 
30 September 2019  DSB meeting and the present meeting, Morocco had not been contacted by 
Tunisia  in order to have consultations  or to engage in mediation . It was regrettable that  Tunisia had 
already decided to resort to  panel proceedings without giving a sufficient  amount of  time for  
consultations  to resolve this matter.  
7.4.  The DSB  took note of the statements and agree d to establish a panel in accordance with the 
provisions of Article 6 of the DSU with standard terms of reference.  
7.5.  The repres entatives of Brazil , Canada , China , the European Union , Japan , 
the Russian  Federation  and the United States  reserved their third -party rights to participate in the 
Panel's proceedings.  WT/DSB/M/43 6 
 
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 8  UNITED STATES – COUN TERVAILING DUTY MEAS URES ON CERTAIN PROD UCTS FROM 
CHINA  
A. Recourse to Article 22.2 of the DSU by China (WT/DS437/30)  
8.1.  The Chairman  drew attention to the commu nication from China contained in document 
WT/DS437/30 . He then invite d the representative of China to speak.  
8.2.  The representative of China  said that, at its meeting on 15 August 2019, the DSB had adopted 
the compliance panel report  in this dispute , as modifi ed by the Appellate Body report. China recalled  
that t he DSB had ruled  that the US measures at issue were inconsistent with the relevant provisions 
of the SCM Agreement and  had recommended that the United States bring its measures into 
conformity with its obligations under that Agreement. At the 15 August 2019 DSB meeting, the 
United States had not indicate d its intention to implement the DSB's recommendations and rulings 
in this dispute. In response to the continued US non-compliance with the DSB 's recommendations 
and rulings, China  had requested the DSB's authorization to suspend concessions or other obligations 
with respect to the United States at a level equivalent to the nul lification or impairment suffered as 
a result of the failure by the United States to comply with the DSB's recommendations and rulings. 
China underst ood that the United States had objected to the level of the proposed suspension and 
the matter had been referred to arbitration in line with Article 22.6 of the DSU. China , once again , 
urged the United States to take concrete action, to respect WTO rules and faithfully implement the 
DSB's recommendations and rulings in this dispute in order to fully comply with  its obligations under 
the covered agreements.  
8.3.  The representative of the United States  said that, o n 17 October 2019, China had requested 
that the DSB authorize China to suspend concessions and related obligations under the covered 
agreements. By letter dated 25 October 2019, the United States had objected to the level of 
suspension of concessions or other obligations proposed by C hina. 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 d id 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 had 
already been referred to arbitration. Nevertheless, although unnecessary, the DSB could take note 
of that fact and confirm that it could not therefore consider China's request fo r authorization.  
8.4.  The DSB  took note of the statements and that the matter raised by the United States in 
document WT/DS437/3 1 has been referred to arbitration, as required by Article 22.6 of the DSU.  
9  APPELLATE BODY APPOI NTMENTS: PROPOSAL BY  ANGOLA; ARGENTINA; AUSTRALIA; 
BENIN; PLURINATIONAL  STATE OF BOLIVIA; B OTSWANA; BRAZIL; BUR KINA FASO; 
BURUNDI; CABO VERDE;  CAMEROON; CANADA; C ENTRAL AFRICAN REPUBLIC ; CHAD; 
CHILE; CHINA; COLOMB IA; CONGO; COSTA RIC A; CÔTE  D'IVOIRE; CU BA; DEMOCRATIC 
REPUBLIC OF CONGO; D JIBOUTI; DOMINICAN R EPUBLIC; ECUADOR; EG YPT; 
EL SALVADOR; ESWATINI; THE EUROPEAN UNION; GABON; THE GAMBIA; G HANA; 
GUATEMALA; GUINEA; GUINEA -BISSAU; HONDU RAS; HONG KONG, CHIN A; ICELAND; 
INDIA; INDONESIA; IS RAEL; KAZAKHSTAN; KE NYA; REPUBLIC OF KOR EA; LESOTHO; 
LIECHTENSTEIN; MADAG ASCAR; MALAWI; MALAY SIA; MALI; MAURITANI A; MAURITIUS; 
MEXICO; MOROCCO; MOZ AMBIQUE; NAMIBIA; NE W ZEALAND; NICARA GUA; NIGER; 
NIGERIA; NORTH MACED ONIA; NORWAY; PAKIST AN; PANAMA; PARAGUAY ; PERU; QATAR; 
RUSSIAN FEDERATION; RWANDA; SENEGAL; SEY CHELLES; SIERRA LEON E; SINGAPORE; 
SOUTH AFRICA; SWITZE RLAND; THE SEPARATE CUSTOMS TERRITORY OF  TAIWAN, 
PENGHU, KINMEN AND M ATSU; TANZANIA; THAILAND; TOGO; TUNISIA; TURKE Y; 
UGANDA; UKRAINE; URU GUAY; THE BOLIVARIAN  REPUBLIC OF VENEZUE LA; VIET NAM; 
ZAMBIA AND ZIMBABWE (WT/DSB/W/609/REV.14 ) 
9.1.  The Chairman  said that t his item was on the Agenda of the present meeting at the request of 
Mexic o, on behalf of a number of delegations. He drew attention to the proposal contained in 
document WT/DSB/W/609/Rev.14 . He then  invite d the representative of Mexico to speak.  
9.2.  The representative of Mexico , speaking on behalf of the co -sponsors of the joint pr oposal 
contained in document WT/DSB/W/609/Rev.14, said that t he delegations in question  had agreed to 
submit the joint proposal dated 19 September 2019 to launch the AB selection processes . Her 
delegation,  on behalf of the se 116 Members, wished to make the following  statement.  The increasing 
and considerable number of Members submitting this joint proposal reflect ed a common concern WT/DSB/M/43 6 
 
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 with the current situation in the Appellate Body that was seriously affecting its functioning and the 
overall dispute settlement system against the best interest of its Members. WTO Members ha d a 
responsibility to safeguard and preserve the Appellate Body, the dispute settlement system and the 
multilateral trad ing system. Thus, it was the Members' duty to launch the AB selection processes, 
as set out in the joint proposal before the DSB at the present meeting . This proposal s ought  to: 
(i) start six selection processes: one process to replace Mr. Ricardo Ramírez -Hernández, whose 
second term expired on 30 June 2017; a second  process to fill the vacancy resulting  with the 
resignation of Mr. Hyun Chong Kim with effect from 1 August 2017; a third process to replace 
Mr. Peter Van den Bossche, whose second term expired on 11 December 2017; a fourth process to 
replace Mr. Shree Bab oo Chekitan Servansing, whose four -year term of office expired on 
30 September 2018; a fifth process to replace Mr. Ujal Singh Bhatia, whose second term w ould 
expire on 10 December 2019; and a sixth process to replace Mr. Thomas R. Graham whose second 
term would  expire 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 issues its recommendation within 60 days after the deadline f or nominations of 
candidates. The proponents were flexible in the determination of the deadlines for the  AB selection 
processes , but believed that Members should consider the urgency of the situation. Mexico  continue d 
to urge all Members to support this proposal in the interest of the multilateral trading system and 
the dispute settlement system.  
9.3.  The representative of the European Union  said that his delegation wished to refer  to its 
statements made on this matter at previous DSB meetings, starting  in February 2017 , almost  three 
years ago . WTO Members ha d a shared responsibility to resolve this issue as soon as possible, and 
to fill the outstanding vacancies in the Appellate Body , 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. The EU also wished to recall that 
concrete proposals ha d been submitted to the General Counc il with a view to unblocking the AB 
selection processes . The EU welcome d the report and the draft General Council decision presented 
by Amb . Walker  as Facilitator  to the General Council on 15 October 2019. The EU believed that this 
was a sound and balanced  way to move the process forward towards its objective, which was to 
unblock the AB selection processes . The EU invite d all Members to engage constructively in these 
discussions so that the  AB vacancies could be filled as soon as possible.  
9.4.  The representative of  the United States  thank ed Amb. Walker  for the continued work on these 
issues. As the United States had explained at prior DSB meetings, the United States was not in a 
position to support the proposed decision.  The systemic concerns that the United States had 
identified remain ed unaddressed. As the United States has explained repeatedly, for more than 16 
years and acr oss multiple US Administrations, the United States ha d been raising serious concerns 
with the Appellate Body 's overreaching and disregard for the rules set by WTO Members.  If WTO 
Members sa id that they support ed a rules -based trading system, then  the Unite d States asked how 
Members could permit the WTO Appellate Body to break the rules Members  had agreed to in 1995 . 
The United States would continue to insist that WTO rules be followed by the WTO dispute settlement 
system and would continue its efforts and its discussions with Members and with Amb. Walker  to 
seek a solution on these important issues.  
9.5.  The representative of Ecuador , speaking on behalf of the Group of Latin American and 
Caribbean countries ( GRULAC ) that were M embers of the WTO , said that his delegation wished to 
draw attention  to the fact that currently  116 Members supported the proposal contained in document 
WT/DSB/W/609/Rev.14 . This growing number attested to the deep concern among Members of this 
Organization as to the current impasse in the AB selection process es. The disagreement regarding  
the functioning of the Appellate Body did not provide legitimate grounds for blocking the AB selection 
process es. Pursuant to Article 17 .2 of the DSU , vacancies had to be filled as they ar ose. This was an 
obligation of WTO Members , and Members were currently in breach  of that obligation . The need to 
improve the functioning of t he dispute settlement system could not serve as an obstacle to  its 
continued operation . The December  deadline  was rapidly approaching  and there was an urgent need  
to find a solution to this problem . Ecuador thank ed Amb. Walker  for his efforts as Facilitator in the 
informal process on AB matters , especially with regard  to the draft General Council decision 
contained in document  JOB/GC/ 222, which had been  present ed to Members on 15 October 2019 . 
Ecuador reaffirmed its support  for the informal  process  on AB matters  and its willingness to  continue 
to contribute  to the efforts of Members that sought, as a matter of  priority , to bring about the 
unblock ing of  the AB selection processes .  WT/DSB/M/43 6 
 
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 9.6.  The representative of Norway  said that the Membership could sometimes disagree  on certain 
matters . The purpose of  multilateral for ums such as the WTO  was to discuss such matters and  to 
make compromises. Norway recognized  that some Members were, in practice, more influential than 
others because of  their size, geography, tradition, and their ability to take good initiatives. These 
factors were all taken into account, almost  automatically, in the art of diplomacy which had brought 
Members trade ru les, stability, economic growth and a dispute settlement system which was, most 
of the time, well respected. Obviously, the system was not perfect. And, some Members more than 
others would argue that there were flaws in this system . Norway listen ed to diff erent view s and was 
familiar with the diplomatic codes that guide d Members' discussions. What Norway had not been 
familiar with was a desire  to deliberately destroy the system. What was perhaps the most 
incomprehensible part for Norway  was that there was nothing at this point  to stop th is destruction. 
Norway urge d the United States to unblock the AB selection processes . Norway wished to remind 
the United States that it had been a m ajor architect behind a system that ha d done so much good. 
Norway invited Members to cooperate in good faith , once again , so as to save , and perhaps also 
improve , this system that Members had created .  
9.7.  The representative of Australia  said that her country wished to refer to its statements made at 
previous DSB meetings on this matter and wished to reiterate Australia's serious concerns regarding 
the DSB 's inability to commence the  AB appointment  process es. Australia welcome d the recent 
progress in the General Council 's informal process on AB matters and welcome d the draft instrument 
for Members ' consideration as a positive step forward . Australia  hoped that this  could lead to 
unblocking the AB selection processes . In this regard , Austral ia recognize d the significant 
contributions of many Members to the discussions and the leadership of Amb . Walker  as Facilitator . 
However, Australia was clear-eyed about the hard work required for the rest of 2019 to address key 
concerns regarding the funct ioning of the Appellate Body. Australia was strongly committed to the 
work ahead and encourage d Members to continue solutions -focused, active engagement and to 
demonstrate the necessary flexibility to agree pragmatic solutions in the interests of all Membe rs.  
9.8.  The representative of Switzerland  said that her delegation wished to refer to its statements 
made at previous DSB meetings on this matter. T he situation was alarming and Switzerland 
expressed deep regre t at the DSB 's continued inability  to launch the AB selection process es. 
Switzerland wished to thank Amb. Walker for his report on the informal process  on AB matters , 
including his proposal of a draft General Council decision, which had been presented to the Members 
at the 15 October 2019  General Council meeting . This was an important step towards concrete 
solutions. Once again, Switzerland urged all Members , especially the Member that ha d raised 
concerns,  to engage constructively in order to solve this impasse without further delay.  
9.9.  The representative of New Zealand  said that his country  wished to reiterate its support for the 
co-sponsored proposal and note d with regret that the Appellate Body would now inevitably 
experience a "technical dip " due to the time required for the completion of the AB selection 
process es. New Zealand continue d to encourage all Members to engage constructively with a view 
to urgently addressing the situation.  
9.10.   The representative of Hong Kong, China  said that  his deleg ation wished to refer to its 
statements  made  at previous  DSB meetings on this matter . Hong Kong, China wished to reiterate 
its serious concerns regarding the current  impasse and the resulting damage to the dispute 
settlement system. Hong Kong, China urged all Members to take prompt action to unblock the AB 
selection processes  without further delay.  
9.11.   The representative of Chinese Taipei  said that his delegation wished to thank Amb. Walker 
for his efforts  as Facilitator  in the informal process on AB matter s. Chinese Taipei , once again,  wished 
to refer to its statements made at previous DSB meetings . Chinese Taipei remain ed committed to 
finding a solution to the  current  impasse and urge d all Members to engage constructivel y to this  end. 
9.12.   The representative of Korea  said that his country  support ed the statement made by Mexico,  
which was based on the joint proposal  contained in document WT/DSB/W/609/Rev.14 . Korea also 
appreciate d the efforts made by Amb. Walker as Facilitator in order to find solutions through the 
informal process  on AB matters , including the draft instrument put forward at the 15 October 2019  
General Council meeting. Korea hope d that the impasse  concerning the AB selection processes would 
be resolved as soon as possible.  
9.13.   The representative of China  said that China wished to echo the statement made by Mexico on 
behalf of 116 Members , which represent ed more than 70  percent  of the entire  Membership.  China WT/DSB/M/43 6 
 
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 expressed deep regret that the collective efforts of Members to launch the AB selection process es 
had, once again , been frustrated by the United States. It was unequivocal that filling the vacancies 
of the Appellate Body was a legal obligation set out in  Article 17.2 of the DSU and which should be 
fulfilled unconditionally. Nothing could justify the blockage of the AB selection process es. 
Nevertheless, Members should remain realistic and acc ommodative in addressing this  pressing crisis , 
which had been created by the United States. Numerous solution -oriented meetings had been 
conducted in different configurations. A dozen reform proposals had been tabled and  debated both 
within and outside the  informal process  on AB matters . More recently, a concrete reform proposal 
made by Amb. Walker as Facilitator had been  submitted to the General Council for further 
consideration. While a certain degree of progress ha d been achieved, Members still could not  reach 
any concrete  solution  to unblock the deadlock. In particular, the persistent lack of constructive 
engagement from the United States ha d prevented any meaningful discussion on those serious 
efforts made by Members. Given the urgency of th is matter, r ather than asking why such a situation  
had occurred , it was more important to discuss what concrete actions the DSB  should take in order 
to move forward. It was fair to say that the current two -tier dispute settlement system serve d the 
whole Membership well. Although the WTO dispute settlement system could be further improved on 
various fronts, its overall performance ha d outperformed  its international counterparts and had 
greatly contributed to a conducive global trading environmen t, which could not have been achieved 
otherwise. Regrettably, the paralysis of the Appellate Body would most likely upend the entire 
dispute settlement system. Without a functioning Appellate Body, the security and predictability 
Members had enjoyed for mo re than two decades would eventually vaporize. The dispute settlement 
system would further tilt the balance in favo ur of power rather than rules. Given its capacity 
constraints and power asymmetry, developing Members would take the biggest hit. Time was 
running out, but there was still hope. China would continue to constructively engage in the informal 
process on AB matters and st ood ready to further contribute to the solution -oriented discussion with 
a view to unblocking the AB selection  processes  deadlock  expeditiously and preserving the essential 
features of the current dispute settlement system.  
9.14.   The representative of Canada  said that t he number of WTO Members behind the proposal 
presented by Mexico and contained in document WT/DSB/W/609/Rev.14  was a clear testimony to 
the importance that Members collectively accord ed to a fully functioning Appellate Body as an 
integral part of the dispute settlement system. Canada remain ed committed to working with other 
interested Members, i ncluding the United States, with a view to addressing concerns and undertaking 
the AB selection processes expeditiously. Canada expressed deep regret that the DSB ha d not 
complied with its obligation under Article 17.2  of the DSU  to appoint Appellate Body members to fill 
the vacancies. The text of the DSU was clear: "[v]acancies shall be filled as they arise". This 
requirement d id not provide for any exception or justification not to fill the vacancies as they ar ose. 
9.15.   The representative of Singapore  said tha t his delegation wished to reiterate its serious 
systemic concerns on the failure to launch the AB selection process es. Amb. Walker , at the 
15 October 2019  General Council meeting, had observed that even if the  AB selection process es 
were unblocked immedia tely, the time required to c arry out  these AB  selection process es were such 
that the Appellate Body would inevitably fall below the number of members required for the Appellate 
Body to hear a new appeal as of 11 December  2019. The urgency of th e matter could not be 
overstated. Singapore remain ed committed to supporting Amb. Walker as Facilitator in the informal 
process  on AB matters , and wish ed to urge all Members, especially those who ha d raised concerns, 
to actively engage in finding concrete s olutions. The AB selection process es should be allowed to 
proceed unconditionally in the meantime. Singapore would continue to engage constructively and 
collaboratively towards resolving this impasse.  
9.16.   The representative of Indonesia  said that  as the 10 Dec ember  2019 deadline  was fast 
approaching, Members were not far away from the gateway of multilateral trading system paralysis. 
As one of the co -sponsors of th e proposal  contained in document WT/DSB/W/609/Rev.14 , Indonesia 
wishe d to reiterate its encouragement to all Members to immediately begin the AB selection 
process es in order to avoid such paralysis.  
9.17.   The representative of Mexico , speaking  on behalf of the 116 co -sponsors of th e proposal  
contained in document WT/DSB/W/609/Rev.14 , expressed regr et that, for the twenty -eighth 
occasion, Members had still not been able to start the AB selection processes and ha d 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 could not serve as pretext 
to impair and disrupt the work of the Appellate Body . There was no legal justification for the current 
blocking of the AB selection processes, which was causing concrete nullification and impairment for WT/DSB/M/43 6 
 
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 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 shall 
comply with their obligation under the DSU to fill the AB vacancies. By fail ing to act at the present 
meeting , Members would maintain the current situation , which was seriously affecting the workings 
of the Appellate Body against the best interest of all Members.  
9.18.   The representative of Mexico  said that her country wished to emphasize that t he number of 
co‑sponsors, currently standing at 116, represent ed the interest of Members in (i) complying with 
the obligation to fill vacancies as they ar ose, in accordance with Article 17.2 of the DSU; 
(ii) addressing the concerns expressed regarding the deadlock that ha d prevailed for more than 
two years; and (iii) promot ing the dispute settlement system. Mexico encouraged  all other Members 
to also co -sponsor th e proposal  contained in document WT/DSB/W/609/Rev.14 . In 2019 , 
16 requests for consultations ha d been submitted, and 15 panels ha d been established, including at 
the present meeting . This was a demonstration of the confidence that Members placed in the WTO 
dispute settlement system and its importance for the multilateral trading system. The current 
situation was of greater urgency an d concern than ever before. Forty-three  days were left before  
the Appellate Body would be  paralys ed and, consequently, all the current disputes would be affected 
by the lack of a fully -functioning  dispute settlement system. Appellate review  was an essentia l part 
of the  dispute settlement  system and, as Members had stated many  times at DSB meetings , this 
was a right of Members resulting  from the Uruguay Round.  Mexico regretted  that 1 64 Members were 
deprived of this right. Mexico believe d that the progress achieved in the informal process on AB 
matters under the auspices of the General Council, which Amb. Walker  had led as Facilitator and in 
which more than a dozen proposals ha d been put forward, represent ed an unequivocal commitment 
by the Members to address these concerns. This should be reason enough to immediately begin the 
AB selection process es and to de-link this matter  from any other concern s. Mexico wished to reiterate 
its readiness to work towards a solution.  
9.19.   The representative of  India said that his country  wished to refer to its statements  made  at 
previous DSB meetings on this matter . India  wished to reiterate its serious concerns regarding the 
DSB's inability to comply with its legal obligation under Article 17.2 of the DSU to appoint Appellate 
Body members to fill the vacancies. The situation was such that the highest instance in the dispute 
settleme nt system would no longer exist in December 2019. India asked how under these 
circumstances  the dispute settlement system would operate . This was as a serious concern for all 
Members. Therefore, India call ed on all Members to engage constructively to immed iately start the 
AB selection process es as a priority.  
9.20.   The representative of Brazil  said that Members were a little over one month away from the 
date whe n the Appellate Body would be reduced to one member and, therefore, unable to hear 
appeals from panel r eports. To appeal  panel reports was a right of each WTO Member under the 
DSU. Maintaining  a fully functioning, fully composed Appellate Body was an obligation of the 
Members of the WTO , and it was an obligation that they were failing to meet. It was thus 
understandable that Members would  seek mean s consistent with the DSU to overcome  this impasse , 
as such a situation could  have a concrete impact on the resolution of their own disputes. Brazil was 
prepared, as it ha d always been  the case , to engage wit h all Members in order to arrive at a solution 
that could  properly address any concerns. This ha d to be done now, in a truly solution -oriented 
manner . It was well passed time to think of the end -game in this matter.  
9.21.   The representative of Japan  said that his country  wished to refer to its statements made at 
previous DSB meetings. Japan continue d to support the informal process  on AB matters  led by 
Amb.  Walker . The active engagement of all WTO Members was essential.  
9.22.   The representative of Nigeria  said that Nigeria expressed deep regret  that the DSB ha d failed 
to launch the AB selection process es. Nigeria wished to reiterate its statements made at previous 
DSB meetings on this matter . Nigeria commend ed the efforts of Amb. Walker as Facilitator in trying 
to resolve this matter under the auspices of the General Council. The increasing number of 
co-sponsors of the proposal  contained in document WT/DSB/W/609/Rev.14  demonstrated  the 
seriousness and urgency of this matter. Nigeria continue d to encourage all Members to engage 
constructively in trying to resolve this issue.  
9.23.   The representative of Qatar  said that his delegation  wishe d to refer to its statements made 
at previous DSB me etings on this matter. Qatar wished to express its appreciation for the efforts of 
Amb. Walker as Facilitator regarding the informal process on AB matters . Qatar aligned itself with 
the statement made by Mexico on behalf of  116 Members. Qatar expressed regret that the DSB , as WT/DSB/M/43 6 
 
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 of the present meeting , had failed to initiate the AB selection processes. Qatar recalled that Members 
had a shared obligation to promptly fill the vacancies of the Appellate Body, as required by 
Article  17.2 of the DSU. The clear text of that provision indicate d that such responsibility had to  be 
fulfilled unconditionally. To avoid unintentional consequences, Qatar called on all Members to act in 
a cooperative manner in order to break the impasse in the A B selection processes without further 
delay and wish ed to emphasize that the discussion on improving the DSU should not be a reason to 
delay the AB appointments. Qatar was ready to work on solutions with all Members , while preserving 
the essential features  of the WTO dispute settlement system , including the Appellate Body.  
9.24.   The Chairman  thank ed all delegations for their statements. As in the past, t he DSB would 
take note  of the statements expressing the Members' respective positions, which would be reflected  
in the minutes of th e present meeting. As Members were aware,  under the auspices of the General 
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. He recall ed that, on 15 October 2019, he 
had provided a fourth progress report to the General Council on his informa l consultations. This 
report had been circulated to all Members in document JOB/GC/222. He also recall ed that, as part 
of that report, he had put forward a draft General Council Decision on the functioning of the Appellate 
Body for Members' consideration , on his own responsibility as Facilitator. The text of this draft 
decision 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 since July 2019. As he had stated 
at the General Council meeting on 15 October  2019, it remain ed for Members to determine how to 
take this matter forward. He would continue to assist the Chair of the General Council and Members, 
in his capacity as Facilitator, in order to find a workab le and agreeable solution to improve the 
functioning of the Appellate Body and to avoid deadlock come December  2019. As he had noted in 
the 15 October 2019  General Council meeting, and as several Members had  mentioned at the present 
meeting , the time taken  for AB selection proces ses was such that the Appellate Body would suffer 
what he had termed a "technical dip" as of the middle of December  2019. He further stated that a s 
well as any disputes that m ight emerge in the future, there were a number of appeals which were 
already in the pipeline, and he would be consulting Members who ha d such appeals in the pipeline 
ahead of 10  December  2019 in order to understand how Members might deal with such appeals. He 
would revert to the DSB on that matter at the 22 November 2019 DSB meeting.   
9.25.   The DSB took note of the statements made.  
10  NORWAY -EUROPEAN UNIO N INTERIM APPEAL ARB ITRATION ARRANGEMENT  
PURSUANT TO ARTICLE 25 OF THE DSU (JOB/D SB/1/ADD.11/SUPPL.1)  
A. Statement by  Norway  
10.1.   The representative of the Norwa y, speaking under "Other Business ", said that Norway  and 
the EU wished to take this opportunity to inform the Membership about the notification of the Interim 
Appeal Arbitration Arrangement  that had been entered into by  Norway and the EU. Taking into 
account the  current  situation in the Appellate Body, it appear ed increasingly necessary to take steps 
to ensure that Members maintain ed a well -functioning dispute settlement system in line with what 
Members  all ha d agreed to in the DSU. The bilateral arrangement between Norway and the EU had 
been notified to the DSB on 21 October 2019, and it had been circulated on the same day as 
document JOB/DSB/1/Add.11/Suppl.1. This arrangement was based on t he model previously 
notified by Canada and the EU. Therefore, regarding the content of the arrangement, Norway wished 
to refer to the presentation made by Canada and the EU at the 30 September 2019 DSB meeting. 
Norway also invite d any Member who ha d questi ons or comments to contact them bilaterally.  
10.2.   The DSB took note of the statements.  
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