RESTRICTED  
  
WT/DSB/M/396  
 
20 June 2017 
(17-3305) Page: 1/13 
Dispute Settlement Body  
19 April 2017    
 
 MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 19 APRIL 2017  
Chairman: Mr. Junichi I hara (Japan ) 
Table of Contents  
1   SURVEILLANCE OF IMPL EMENTATION OF RECOMM ENDATIONS ADOPTED BY  
THE DSB ................................ ................................ ................................ ...........................  2 
A.  United  States – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status report by the United  States  ................................ ................................ ..............  2 
B.  United  States – Section 110(5) of the US Copyright Act: Status report by the 
United  States  ................................ ................................ ................................ .....................  2 
C.  European  Communities – Measures affecting the approval and marketing of biotech 
products:  Status report by the European  Union ................................ ................................ ....... 3 
2   RUSSIAN  FEDERATION – MEASURES ON THE IMPO RTATION OF LIVE PIGS , 
PORK AND OTHER PIG P RODUCTS FROM THE EUR OPEAN  UNION  ................................ ..... 3 
A.  Implementation of the recommendations of the DSB  ................................ ..........................  3 
3   UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  OF 
2000: IMPLEMENTATION  OF THE RECOMMENDATIO NS ADOPTED BY THE DS B ................  4 
A.  Statement by the European  Union  ................................ ................................ ....................  4 
4   INDIA – MEASURES CONCERNING THE IMPORTATION OF C ERTAIN 
AGRICUL TURAL PRODUCTS  ................................ ................................ ..............................  5 
A.  Recourse to Article  21.5 of the DSU by India: Request for the establishment 
of a panel  ................................ ................................ ................................ ..........................  5 
5   EUROPEAN  UNION  – MEASURES AFFECTING T ARIFF CONCESSIONS ON  
CERTAIN POULTRY MEAT  PRODUCTS  ................................ ................................ ...............  8 
A  Report of the Panel  ................................ ................................ ................................ ..........  8 
6   APPELLATE BODY APPOI NTMENTS  ................................ ................................ ..............  9 
A.  Statement by the Chairman  ................................ ................................ .............................  9 
7   DISPUTE SETTLEMENT W ORKLOAD  ................................ ................................ ...........  12 
A.  Statement by the Chairman  ................................ ................................ ............................ 12 
 
 WT/DSB/M/396  
 
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1  SURVEILLANCE OF IMPL EMENTATION OF RECOMM ENDATIONS ADOPTED BY  THE DSB 
A.  United  States – Anti-dumping measures on certain hot -rolled steel products from Japan: Status 
report by the United  States (WT/DS184/15/Add.171)  
 
B.  United  States – Section 110(5) of the US Copyright Act: Status report by the United  States 
(WT/DS160/24/Add.146)  
 
C.  European  Communities – Measures affecting the approval and marketing of biotech products: 
Status report by the European  Union (WT/DS291/37/Add.109)  
 
 
1.1.  The Chairman  noted that there were three 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 require d that: "Unless 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". The Chairman invited delegations to provide up -to-date 
information about compliance efforts and to focus on new developments, suggestions and ideas on 
progress towards the resolution of disputes. He also r eminded delegations that, as provided for in 
Rule 27 of the Rules of Procedure for DSB meetings: "Representatives should make every effort to 
avoid the repetition of a full debate at each meeting on any issue that has already been fully 
debated in the past  and on which there appears to have been no change in Members' positions 
already on record". He then turned to the first status report under this Agenda item.  
A.  United  States – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status  report by the United  States (WT/DS184/15/Add.171)  
1.2.  The Chairman  drew attention to document WT/DS184/15/Add.171, which contained the 
status report by the United  States on progress in the implementation of the DSB's 
recommendations in the case concerning US  anti-dumping measures on certain hot -rolled steel 
products from Japan.  
1.3.  The representative of the United  States  said that the United  States  had provided a status 
report in this dispute on 6  April 2017, in accordance with Article  21.6 of the DSU. The 
United  States had addressed the DSB's recommendations and rulings with respect to the 
calculation of anti -dumping margins in the hot -rolled steel anti -dumping duty investigation at 
issue. With respect to the recommendations and rulings of the DSB that had 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 thanked the United States for its statement 
and its status report. Japan 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 agreed  to revert to this matter at its next regular 
meeting.  
B.  United  States – Sectio n 110(5) of the US Copyright Act: Status report by the 
United  States (WT/DS160/24/Add.146)  
1.6.  The Chairman  drew attention to document WT/DS160/24/Add.146, which contained the 
status report by the United  States on progress in the implementation of the DSB's 
recommendations in the case concerning Section  110(5) of the US Copyright Act.  
1.7.  The representative of the United  States  said that the United  States  had provided a status 
report in this dispute on 6  April 2017, in accordance with Article  21.6 of the DSU. The 
US Administration would continue to confer with the EU, and to work closely with the US Congress, 
in order to reach a mutually satisfactory resolution of this matter.  WT/DSB/M/396  
 
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  1.8.  The representative of the European  Union  thanked the United States for its status report a nd 
its statement made at the present meeting. The EU referred to its previous statements on this 
matter and said that it wished to resolve this dispute as soon as possible.  
1.9.  The DSB took note  of the statements and agreed  to revert to this matter at its next  regular 
meeting.  
C.  European  Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European  Union (WT/DS291/37/Add.109)  
1.10.   The Chairman  drew attention to document WT/DS291/37/Add.109, which contained the 
status report by the EU on progress in the implementation of the DSB's recommendations in the 
case concerning measures affecting the approval and marketing of biotech products.  
1.11.   The representative of the European  Union  said that the draft authorisation decision for one 
type of genetically modified maize1 (for food and feed uses) and the draft proposals for the 
authorisation of three types of maize2 (for cultivation) had been submitted for vote at the Appeal 
Committee on 27  March  2017, with a "no opinion" result. It was now for the Commission to decide 
on these authorisations. The draft authorisation decision for one type of genetically modified 
maize3 (for food and feed uses) and one type of genetically modified cotton4 (for food and feed 
uses) had been submitted for a vote at the member States Committee on 27  March  2017, with a 
"no opinion" result. These measures would now be submitted for discussion, and possible opinion, 
to the Appeal Committee on 16  May 2017. The EU said that it continued to be committed to act ing 
in line with its WTO obligations. More generally, and as it had stated previously on many 
occasions, the EU recalled that the EU approval system was not covered by the DSB's 
recommendations and rulings.  
1.12.   The representative of the United  States  said that  the United  States  thanked the EU for its 
status report and its statement made at the present meeting. The EU measures affecting the 
approval and marketing of biotech products continued to result in lengthy, unpredictable, and 
unexplained delays in approva ls. The delays and uncertainty in approvals caused adverse effects 
on trade. The failure to approve biotech corn products was a source of particular concern to the 
United  States. A number of corn products had received the approval of the EU's scientific 
authority, yet remained stalled at the level of the EU Appeals Committee or the EU Commission. 
The EU's scientific review process was also subject to increasingly long delays. Many corn and 
soybean products had now been under consideration by the EU's scient ific authority for many 
years. Furthermore, the EU had recently proposed regulations that would create more, rather than 
less, uncertainty with regard to the information required for scientific evaluation of biotech 
products. The United States strongly enc ouraged the EU to ensure that it required only the 
scientific information relevant to the type of risk assessment being conducted. The United  States 
encouraged the EU to ensure that, as required by EU regulations and WTO rules, decisions on 
biotech approva ls were made without unnecessary or further delays.  
1.13.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
2  RUSSIAN  FEDERATION – MEASURES ON THE IMPO RTATION OF LIVE PIGS , PORK AND 
OTHER PIG PRODUCTS F ROM THE EUR OPEAN  UNION  
A.  Implementation of the recommendations of the DSB  
2.1.  The Chairman  recalled that, in accordance with the DSU provisions, the DSB was required to 
keep under surveillance the implementation of recommendations and rulings of the DSB 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 should 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 recommendations and rulings of the DSB. He recalled that at its meeting on 
                                                
1 Maize Bt11 × 59122 × MIR604 × 1507 × GA21.  
2 Bt11, 1507 and MON810 (renewal).  
3 DAS 40278 -9. 
4 GHB 119.  WT/DSB/M/396  
 
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  21 March  2017, the DSB had adopted the Appellate Body Report and the Panel Report, as modified 
by the Appellate Body Report, pertainin g to the dispute on: "Russian  Federation – Measures on the 
Importation of Live Pigs, Pork and Other Pig Products from the European  Union" (DS475). He then 
invited the representative of the Russian  Federation to inform the DSB of its intentions in respect 
of implementation of the DSB's recommendations.  
2.2.  The representative of the Russian  Federation  said that, at its meeting on 21  March  2017, the 
DSB had adopted the Appellate Body Report and the Panel Report, as modified by the Appellate 
Body Report, in the dis pute: "Russian  Federation – Measures on the Importation of Live Pigs, Pork 
and Other Pig Products from the European Union" (DS475).  According to Article  21.3 of the DSU, 
Russia informed the DSB that it intended to implement the recommendations and rulings of the 
DSB in accordance with its WTO obligations.  Russia said that it needed a reasonable period of time 
for the implementation of the DSB's recommendations and rulings. It stood ready to discuss this 
matter with the EU in due course, in accordance with A rticle 21.3(b) of the DSU.  
2.3.  The representative of the European  Union  said that his delegation hoped that Russia would 
promptly and fully implement the Panel's findings and urged Russia to allow trade of safe products 
from the EU to take place without delay.  The EU said that it was ready to discuss with Russia a 
reasonable period of time, but also wished to stress that, from the EU's point of view, no 
legislative change was required for Russia to bring itself into compliance. Against this backdrop, 
the EU wou ld not accept an excessively long period of time for Russia's implementation.  
2.4.  The DSB took note  of the statements, and of the information provided by the 
Russian  Federation regarding its intentions in respect of implementation of the DSB's 
recommendations.  
3  UNITED  STATES – CONTINUED DUMPING AN D 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  said that this item was on the Agenda of the present meeting at the request of 
the European  Union and invited the representative of the European Union to speak.  
3.2.  The representative of the European  Union  said that his delegation, once again, requested the 
United  States to stop transferring anti -dumping and countervailing duties to the US i ndustry. Every 
disbursement that still took place was clearly an act of non -compliance with the DSB's 
recommendations and rulings. The EU renewed its call on the United States to abide by its clear 
obligation under Article  21.6 of the DSU to submit status reports on implementation in this 
dispute. The EU would continue to place this matter on the DSB Agenda for as long as the 
United  States had not implemented the WTO ruling.  
3.3.  The representative of Brazil  said that his country thanked the EU for keeping this item on the 
DSB Agenda. As one of the parties to the Byrd Amendment disputes, Brazil referred to its previous 
statements on this matter. In particular, Brazil wished to refer to its statements regarding the 
continuation of illegal disbursements, which shou ld cease immediately. Brazil renewed its call on 
the United  States to fully comply with the DSB's recommendations and rulings in this dispute. Until 
then, the United  States was under an obligation to submit status reports, pursuant to Article  21.6 
of the D SU. 
3.4.  The representative of Canada  said that his country wished to refer to its previous statements 
made under this Agenda item. Canada's position on this matter had not changed.  
3.5.  The representative of the United  States  said that, as the United  States  had not ed at previous 
DSB meetings, the Deficit Reduction Act – which included a provision repealing the Continued 
Dumping and Subsidy Offset Act of 2000 – had been enacted into law in February  2006. 
Accordingly, the United  States had taken all actions necessary to implement the DSB's 
recommendations and rulings in these disputes. The United States recalled, furthermore, that the 
EU had acknowledged that the Deficit Reduction Act did not permit the distribution of duties 
collected on goods entered after 1  October  2007, which was over nine years ago. With respect to 
the EU's request for status reports in this matter, as the United States had already explained at WT/DSB/M/396  
 
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  previous DSB meetings, there was no obligation under the DSU to provide further status reports 
once a Mem ber announced that it had implemented the DSB recommendations and rulings, 
regardless of whether the complaining party disagreed about compliance. Indeed, the EU had 
demonstrated repeatedly that it shared this understanding, at least when it was the respon ding 
party in a dispute. At the 21  March  2017 DSB meeting, the United States had pointed out that the 
EU was not providing status reports in the "EC  - Large Civil Aircraft" (DS316) dispute, despite the 
fact that the United States did not agree that the EU had implemented the DSB's 
recommendations. The EU had asserted, during the same meeting, that the matter was subject to 
an Article  21.5 proceeding , but t hat only confirmed that there was no adopted DSB finding that the 
EU had come into compliance with WTO rules. At best, therefore, the EU could only assert that a 
disagreement between the parties currently existed. Once again, if the EU actually believed the 
position it was taking under this Agenda item, it could demonstrate this by submitting a status 
repor t in DS316 for next month's DSB meeting scheduled for 22  May 2017.  
3.6.  The representative of the European  Union  said that his delegation wished to refer to the EU 
statement made at the 21  March  2017 DSB meeting. The EU was of the opinion that DS217 was 
differe nt from DS316, since in DS217 the dispute had been adjudicated and no further compliance 
proceedings were pending. Therefore, the two disputes could not be compared.  
3.7.  The DSB took note  of the statements.  
4  INDIA – MEASURES CONCERNING THE IMPORTATION OF C ERTAI N AGRICULTURAL 
PRODUCTS  
A.  Recourse to Article  21.5 of the DSU by India: Request for the establishment of a 
panel (WT/DS430/21)  
4.1.  The Chairman  drew attention to the communication from India contained in document 
WT/DS430/21 and invited the representative of  India to speak.  
4.2.  The representative of India said that his country was requesting the establishment of a panel, 
pursuant to Article  21.5 of the DSU pertaining to DS430. He recalled that on 19 June 2015, the 
DSB had adopted its recommendations and rulings i n: "India – Measures Concerning the 
Importation of Certain Agricultural Products" (DS430). At the 20  July 2015 meeting, India had 
informed the DSB of its intention to implement the recommendations and rulings of the DSB with 
respect to this matter. In acco rdance with the recommendation of the SPS Committee and as part 
of India' s efforts towards compliance, India had notified the draft amendment notification to the 
SPS Committee on 20  April 2016, allowing a 60 -day time period for interested parties to provid e 
comments. Pursuant to this, India had issued the final notification, S .O. 2337(E), which had 
superseded the previous notification S .O. 1663(E). Further, India had also issued the relevant 
Questionnaire and the Guidelines referred to in the notification S .O. 2337(E) for recognizing 
disease free areas and areas of low pest and disease prevalence for the purpose of trade in poultry 
and poultry products. On 18  July 2016, India had notified the DSB that it had adopted measures 
necessary to comply with the DSB' s recommendations and rulings. Pursuant to the issuance of 
S.O. 2337(E), India had entered into bilateral negotiations with the United States so as to address 
the US concerns. Thereafter, in order to provide further clarity, India had amended notification 
S.O. 2337(E) with notification S .O. 2998(E) and notification S .O. 510(E). Further, in response to a 
request for information by the United States pursuant to Article  5.8 of the SPS Agreement, India 
had provided necessary information to further clarify the l egal regime existing after the issuance of 
the compliance measures. Notification S .O. 2337(E) (dated 8  July 2016),  amendment notifications 
S.O. 2998(E) (dated 19  September  2016), S .O. 510(E) (dated 17  February  2017), the revised 
guidelines and the question naire, together, formed the "revised avian influenza measures".  
4.3.  These notifications had been issued in exercise of the power conferred by Section  3(1) and 
Section  3A of the Livestock Act, 1898 and came into effect from the date of their publication in the 
Official Gazette. India strongly considered that the "revised avian influenza measures" complied 
with the recommendations of the DSB in DS430 as they: (i) allowed imports of poultry and poultry 
products into India in accordance with the relevant internatio nal standard, i.e. the OIE Terrestrial 
Animal Health Code ("Terrestrial Code"); (ii) recognized the concept of areas of low disease 
prevalence and disease -free areas ; and (iii) provided for the process to be followed for recognition 
of such disease -free ar eas and areas of low disease prevalence, in accordance with the WT/DSB/M/396  
 
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  SPS Agreement and the OIE Terrestrial Code. These also addressed all the concerns raised by the 
United  States during bilateral discussions. However, in spite of the efforts made by India to re solve 
the dispute bilaterally by providing to the United States the relevant information and clarifications, 
the United States had not yet agreed to enter into a sequencing agreement in this dispute. A 
sequencing agreement would have provided the United St ates with an option to request a 
compliance panel, in case the United States was not satisfied that India had fully complied with the 
recommendations of the DSB. This was also the standard practice amongst Members. Moreover, 
despite India's sincere efforts  to resolve this issue bilaterally, the United States had not accepted 
India's request to suspend the Article  22.6 proceeding in this dispute. In light of these facts, and in 
order to safeguard its interests, India had no option but to request the establis hment of a 
compliance panel, pursuant to Article  21.5 of the DSU, to determine whether India had complied 
with the DSB's recommendations and rulings. Nevertheless, India was still open to discuss with the 
United  States their concerns, if any, on the extent  of India' s compliance with respect to the DSB 
recommendations. Therefore, India requested that a panel be established pursuant to Article  21.5 
of the DSU, with standard terms of reference, as set out in Article  7.1 of the DSU. India requested 
that the DSB  refer the matter to the original Panel, if possible.  
4.4.  The representative of the United  States  said that the United  States  was confident that India 
had no basis for asserting compliance with the DSB recommendations in this dispute. To recall, the 
DSB had fo und that India's measures blocking the importation of US poultry and other agricultural 
products were not based on science and breached several of India's obligations under the 
SPS Agreement. The DSB had adopted these rulings in June  2015, nearly two years  ago. Despite 
that, India continued to maintain a complete ban on US poultry and other agricultural products. 
The United States said that it could see no valid legal basis for India' s assertion of compliance. To 
the contrary, India's failure to take accoun t of the DSB's findings meant that the inconsistencies 
found by the DSB continued  to this day . In addition, a compliance panel proceeding at this time 
would not contribute to a prompt resolution of the dispute. While the United States had reserved 
its righ ts to move forward on the pending arbitration under Article  22.6 of the DSU, on the level of 
nullification and impairment resulting from India's ban, the United States had sought, and 
continued to seek, to work cooperatively with India toward the goal of l ifting the current ban on 
US poultry products.  
4.5.  The United States had made concrete proposals to India and had yet to receive any reply 
from India to those proposals. Accordingly, the United States suggested that India focus on 
actually achieving compliance  in this dispute. For these reasons, the United States was not in a 
position to agree to the establishment of a panel at the present meeting. With respect to India's 
reference to sequencing agreements, the United States found it puzzling that so much of In dia's 
panel request was dedicated to the issue of a sequencing agreement rather than explicating how 
India was ensuring its trading partners had access consistent with India's WTO obligations. In any 
event, the DSU did not require Members to enter into a s equencing agreement. Members had 
found it appropriate to do so in many circumstances. But, India had taken no steps to address the 
DSB's recommendations as of the time when the United States had taken procedural action to 
preserve its rights under Article  22 of the DSU.  
4.6.  The representative of Brazil  said that this was another case that put the spotlight on the 
sequencing issue between Articles  21.5 and 22 of the DSU and the procedural issue of parallel 
proceedings. Beyond the concrete facts of the present di spute, the issue of "sequencing" had, over 
the years, reached a certain degree of accommodation by means of the so -called "sequencing 
agreements". More recently, regrettably, some Members had decided to take a more complicated 
route, having recourse to Art icle 22.2 of the DSU  even in face of claims that measures had been 
taken to comply. Members were now witnessing the consequences of overturning the correct 
procedural order between these Articles. To be clear, direct recourse to Article 22.2 of the DSU 
should only be acceptable if no measure had been taken to comply with the DSB's 
recommendations and rulings. This situation, albeit rare, had indeed occurred in some disputes. 
Whenever, however, there was disagreement about the existence or consistency of mea sures 
taken for compliance with the DSB recommendations, the logical procedural order could only be 
the one set out in the DSU. Brazil said that Members supporting direct recourse to Article  22.2 of 
the DSU, in any circumstance, irrespective of the textual  evidence of Article  21.5, should answer 
the following question: was it reasonable to believe, or prudent to accept, that the drafters of the 
DSU, back in the early 90s, envisaged the current situation? This included the following 
possibilities : (i) the es tablishment of parallel panel proceedings under Article  21.5 and Article  22.6 
of the DSU; (ii) a retaliation panel under Article  22.6 of the DSU would start, and finish – possibly WT/DSB/M/396  
 
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  with a finding of non -compliance – before a compliance panel had concluded i ts analysis 
(compliance procedures took longer, with the possibility of appeal); (iii) a Member could win the 
right to retaliate – and in practice apply that retaliation – before a multilateral confirmation of the 
lack of implementation; (iv) sometime late r, a compliance panel could find that the measures 
taken by the other party had, in fact, brought that party into full or partial compliance with the 
DSB recommendations; and (v) the retaliation, that had been unjustifiably applied, would then, 
somehow, ha ve to be "undone" or made good again, or at least recalculated . The question 
Members had to answer was simple: was this what the DSU text entail ed? Was this what the 
drafters really intended? Brazil questioned whether Members were forcing an interpretation  that 
was clearly problematic. There could be some problems with the phase of implementation and 
reality sometimes fell short of Members' expectations. But, certainly, there were other ways of 
tackling the sequencing issue without making things worse. What  Brazil believed could not be done 
was to transform Article  22.6 of the DSU into a "mini -implementation dispute". Doing so could risk 
curtailing the due process guarantees safeguarded by the procedure under Article  21.5 of the DSU, 
which was the mechanism for resolving disagreements regarding implementation of adopted 
decisions.  
4.7.  The representative of the European  Union  said that his delegation referred to its statement 
made at the special DSB meeting on 19  July 2016.  The EU hoped that India and the United S tates 
would ensure that the DSU procedures with regard to compliance and the suspension of 
obligations in this dispute would be conducted efficiently and in the correct sequence. In that 
regard, the EU noted India's request to establish a compliance panel pursuant to Article  21.5 of the 
DSU. These developments raised a number of systemic issues which the EU intended to closely 
follow in the upcoming proceedings. The EU recalled its view that arbitration under Article  22.6 of 
the DSU should be preceded by a multilateral determination of compliance where there was a 
disagreement on this question. The EU had participated as a third -party in the panel and appeal 
proceedings in this dispute. It would request third -party rights to participate in the compliance 
proceeding, pursuant to Articles  10.1 to 10.3 of the DSU, including with respect to any 
disagreement as to the existence or consistency with the covered agreement of measures taken to 
comply with the DSB's recommendations and rulings.  
4.8.  The representative of Colombia  said that his country did not wish to comment on the 
substance of DS430 but wished to share Members' concerns on the issue of sequencing. Colombia 
welcomed the fact that there was goodwill in the consultations regarding the  implementation of the 
DSB's recommendations and rulings  in this dispute . Colombia hoped that there would be a logical 
approach in the way that Members dealt with their concerns related to compliance in accordance 
with the spirit of the correct interpretation of the DSU.  
4.9.  The repres entative of Canada  said that this was the third example in a recent series of cases 
that, together with DS381 and DS461, had raised important procedural issues for the DSB's 
consideration. For the most part, the uncertainty arising from the ambiguity in th e DSU regarding 
the sequence of compliance proceedings and requests for authorization from the DSB to suspend 
concessions had been resolved through "sequencing agreements". These agreements set out that, 
for the purposes of a specific dispute, disagreement s about the WTO -consistency of a compliance 
measure would be resolved through compliance proceedings before the grant of authorization to 
suspend concessions, and that the request for such authorization could be made after the expiry of 
the 30 -day time per iod set out in Article  22.6 of the DSU. Sequencing agreements thus enable 
Members to overcome the uncertainty that the text of the DSU created and contributed to the 
effectiveness and predictability of the dispute settlement system. Canada invited the disp uting 
parties to consider their procedural options with due regard both for systemic considerations and 
for their own interest in reciprocal treatment in future disputes. Canada also noted that this panel 
request had provided another example of the utility  and appropriateness of the right of a 
responding party to initiate compliance proceedings. Finally, Canada said that in the absence of an 
agreement between the parties that consultations at the compliance phase of this dispute could be 
fruitful, Canada we lcomed their decision to avoid delay and to focus their efforts on resolving the 
dispute as quickly as possible.  
4.10.   The representative of Australia  said that, like others, her country would like to comment on 
some of the systemic issues raised in the current dispute. Australia said that it was mindful of the 
complex systemic issues and the potential for uncertainty arising as a result of possible parallel 
compliance and retaliation proceedings in the current dispute. In Australia's view, there was no 
legal bas is for the DSB to require suspension of an Article  22.6 arbitration contingent on an WT/DSB/M/396  
 
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  Article  21.5 panel finding. However, in principle, in the absence of agreement of the Membership 
on codification of appropriate procedures, Australia considered that an ag reement between the 
parties on the sequencing of compliance and retaliation proceedings was the preferred mechanism 
to resolve any uncertainty about sequencing in a particular dispute. This was consistent with 
established practice, and, in Australia's view , had been effective in the past. Australia therefore, 
encouraged the Parties to cooperate with a view to finding a pragmatic solution that both 
protected the rights of each party and took into account the systemic interests of all Members.  
4.11.   The DSB took no te of the statements and agreed  to revert to this matter.  
5  EUROPEAN  UNION – MEASURES AFFECTING T ARIFF CONCESSIONS ON  CERTAIN 
POULTRY MEAT PRODUCT S 
A  Report of the Panel (WT/DS492/R and WT/DS492/R/ADD.1)  
5.1.  The Chairman  recalled that, at its meeting on 20  July 2015, the DSB had established a Panel 
to examine the complaint by China pertaining to this dispute. The Report of the Panel, contained in 
document WT/DS492/R and Add.1 had been circulated on 28  March  2017 as an unrestricted 
document. The Panel Report was now before the DSB for adoption at the request of China. This 
adoption procedure was without prejudice to the right of Members to express their views on the 
Panel Report.  
5.2.  The representative of China  said that her country thanked the Panel, and the Secretar iat 
assisting it, for their hard work throughout the course of this dispute. China had brought this 
dispute to address a situation that had arisen after certain SPS measures had been adopted by the 
EU in response to an outbreak of avian influenza in China.  From January  2002 through July  2008, 
imports of poultry products from China into the EU had been prohibited pursuant to the SPS 
measures. It was worth noting that China did not challenge the WTO -consistency of the SPS 
measures themselves as part of this d ispute. China's concern was that the EU had failed to take 
into account China's interests in the EU poultry market when it had renegotiated tariff concessions 
involving these products based on import data compiled while imports of these products from 
China  were banned. In addition, the EU, based on the absence of imports from China due to the 
EU's import ban, had allocated the majority of the tariff -rate quotas (TRQs) opened as a result of 
the tariff renegotiation to Brazil and/or Thailand, because these tw o Members had accounted for 
the majority of EU imports. China considered that the approach to the tariff renegotiation and 
TRQ allocation adopted by the EU was inconsistent with the EU's obligations under Articles  XXVIII, 
XIII, I and II of the GATT  1994. T he Panel had found that the EU's allocation of two TRQ shares 
among supplying countries was inconsistent with the requirements of Article  XIII:2. Specifically, 
the Panel had upheld China's claim that its increased ability to export poultry products to the EU, 
following the end of the SPS measures in July  2008, was a "special factor" that the EU had been 
required to take into account when determining which countries had a "substantial interest" in 
supplying the products concerned, or when determining the TRQ  shares to be allocated to the 
category of "all other" countries that were not recognized as substantial suppliers (including China) 
pursuant to Article  XIII. China was of course disappointed that the Panel had not found that the EU 
had violated its obliga tions with respect to the other claims in this dispute. Overall, however, China 
was pleased with the outcome and supported the DSB's adoption of this important Report. China 
appreciated the EU's decision to accept adoption of the Panel Report at the presen t meeting and 
looked forward to constructive engagement in respect of, inter alia, the EU's implementation of the 
recommendations of the DSB in the near future, so that the parties could resolve this dispute.  
5.3.  The representative of the European  Union  said t hat his delegation wished to thank the Panel 
and the Secretariat for their work in this dispute. The EU welcomed the findings of the Panel. The 
Panel had rejected most claims made by China and had made some important systemic findings. 
In particular, the P anel had rejected all claims by China under Article  XXVIII of the GATT  1994. 
This included the claim that an importing Member was under a legal obligation to reappraise which 
WTO Members held a principal or substantial supplying interest to reflect changes  in import shares 
that had taken place following the initiation of the negotiations. This ensured legal certainty and 
predictability for WTO Members which followed the procedures under Article  XXVIII of the 
GATT  1994. Moreover, in relation to claims under Article  XIII of the GATT  1994, the Panel had 
rejected China's claim that the EU had acted inconsistently with Article  XIII by failing to 
periodically (annually) update the initial TRQ allocations. Such a finding would have been of 
concern beyond the manage ment of this particular tariff -rate quota as it would have imposed a WT/DSB/M/396  
 
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  very burdensome obligation on all WTO Members managing TRQs to periodically update all initial 
TRQ allocations. Finally, the Panel had also rejected China's contention that the EU had act ed 
inconsistently with Article  XIII by determining which countries had a substantial interest in 
supplying the products concerned on the basis of their actual share of imports into the EU, rather 
than on the basis of an estimate of what import shares would  have been in the absence of the SPS 
measures restricting poultry imports from China. The EU believed that these clear findings were of 
systemic importance and provided very useful guidance to Members in negotiating and managing 
TRQs.  
5.4.  The representative of  Thailand  said that his country welcomed the adoption of the Panel 
Report in DS492. The dispute in DS492 arose, in part, directly from measures taken by the EU to 
implement the DSB's recommendations and rulings in the 2005 dispute brought by Thailand and 
Brazil against the EU, namely, "European Communities – Customs Classification of Frozen Boneless 
Chicken Cuts" (DS269). Due to its economic and legal interest in this dispute, Thailand had 
requested (and had been granted) enhanced third -party rights in the panel proceedings, together 
with the other third -parties. This dispute concerned the modification of ten tariff lines5 in the EU's 
Schedule of Concessions. These modifications had been negotiated with Thailand and Brazil, which 
had been determined by the E U to be Members with a principal supplying interest or a substantial 
supplying interest in the ten tariff lines. The EU had replaced the previously unlimited tariff 
concessions in these lines with tariff -rate quotas. The total amounts of the tariff -rate qu otas and 
their allocation had been determined by the EU by agreement with Thailand and Brazil, as 
appropriate. In this dispute, the Panel had decided upon various complicated issues, including the 
procedures for the determination of Members with a principa l supplying interest and a substantial 
supplying interest under negotiations pursuant to Article  XXVIII of the GATT  1994, the rules for 
the allocation of tariff rate quotas under Article  XIII of the GATT  1994, and the relationship 
between these two provisi ons. Many of these issues had never been examined before by a WTO 
panel. The EU's tariff -rate quotas at issue in this dispute covered poultry meat products, which 
were important exports for Thailand. Thailand said that it looked forward to actively followi ng all 
future steps in these proceedings.  
5.5.  The representative of Brazil  said that his country, as a third -party to this dispute, wished  to 
make some comments on the implementation of the Panel’s recommendations. Brazil said that it 
was confident that, in im plementing the recommendations of the Panel, the parties would ensure 
full compliance with Article  3.5 of the DSU, pursuant to which decisions within the WTO dispute 
settlement system "shall not nullify or impair benefits accruing to any Member under the c overed 
agreements, nor impede the attainment of any objective of those agreements". In particular, 
Brazil said that it expected that its rights, obtained by negotiations with the EU under 
Article  XXVIII of the GATT  1994, would not be affected by the implem entation of the Panel Report, 
both in terms of the overall size of the TRQ allocated to Brazil under those procedures and with 
regard to the administration regime of such quotas. At the same time, Brazil noted the Panel's 
reasoning with regard to changes o f market share following initial TRQ allocations and other 
"special factors" for the purposes of Article  XIII of the GATT  1994.  
5.6.  The DSB took note  of the statements and adopted  the Panel Report contained in 
WT/DS492/R and Add.1.  
6  APPELLATE BODY APPOI NTMENTS  
A.  Statement by the Chairman  
6.1.  The Chairman  recalled that the second four -year term of Mr. Ricardo Ramírez Hernández 
would expire on 30  June 2017, and the second four -year term of Mr. Peter Van den Bossche would 
expire on 11  December  2017. Pursuant to Artic le 17.2 of the DSU they were not eligible for 
reappointment and the DSB would have to decide on the appointments of two new Appellate Body 
members to replace the incumbents. He also recalled that at the 25  January  2017 DSB meeting his 
predecessor, Ambassad or Carim, had outlined two possible approaches to fill the upcoming 
vacancies in the Appellate Body. Following the 25  January  2017 DSB meeting, Ambassador  Carim 
had consulted with Members on possible approaches and on the elements outlined with respect to 
                                                
5 These tariff lines are: 0210 9939, 1602 31, 1602 32 19, 1602 32 11, 1602 32 30, 1602 32 90,  1602 
39 21, 1602 39 29, 1602 39 40, 1602 39 80. Tariff lines 1602 39 40 and 1602 39 80 were combined in 2012 to 
create a new tariff line: 1602 39 85. See Panel Report, p. 17.  WT/DSB/M/396  
 
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  the two vacant positons. In the course of his consultations several delegations had supported one 
single selection process. However, two delegations had expressed a preference for two 
independent processes. One delegation had suggested that the DSB could s tart one selection 
process to fill the vacancy that would expire in June  2017 and that more time could be given to 
address the second vacancy. It was his understanding however that those supporting one single 
selection process would agree to two independen t processes only if the work on both could be 
completed before the summer break or if there was prior clarity on the process and timing of both. 
At the 20  February  2017 meeting Ambassador Carim had indicated his intention to consult with 
delegations with a  view to submitting a proposal to the DSB in March on the procedural steps and 
the possible timetable for launching the process or processes. At the 21  March  2017 DSB meeting, 
he reported that he had consulted with several delegations on these matters but,  unfortunately, it 
had not been possible to come to an agreement on the way forward. He indicated that the Chair's 
consultations would have to continue. Following the 21  March  2017 DSB meeting, after taking over 
the Chairmanship of the DSB, he had continue d the process of consultations in order to find a way 
forward. As of the present meeting, the Chairman could only report that these consultations would 
continue with a view to finding a solution as soon as possible. He said that he was aware of the 
fact th at the first position in the Appellate Body, currently held by Mr. Ramírez, would become 
vacant as of 1  July 2017. In  view of the Appellate Body's increased workload, he believed that 
every avenue should be explored to ensure its good functioning. The Chai rman therefore invited 
delegations with views on this matter to contact him directly or the Secretariat. On his part, he 
would continue to consult with delegations to be able to submit a proposal regarding the Appellate 
Body appointments as soon as possibl e. 
6.2.  The representative of Mexico , speaking on behalf of Argentina , Brazil , Colombia , Chile, 
Guatemala , Mexico  and Peru, said that, pursuant to Article  2.1 of the DSU, it was up to the DSB to 
administer the dispute settlement provisions and, therefore, to ma intain a proper functioning of 
the system, including the Appellate Body. Members, therefore, had to act responsibly and carry 
out the necessary work to enable its proper functioning. In this respect, the above -mentioned 
countries stressed their concern tha t, as of the present meeting, the selection process to fill the 
vacancy in the Appellate Body starting on 1  July 2017 – a vacancy traditionally maintained by the 
Latin American region – had not yet started. The mentioned countries were concerned that there  
was not even a proposal on procedures to carry out the selection process, given that Article  17.2 
of the DSU and paragraph  4 of document WT/DSB/1 ( "Establishment of the Appellate Body "), 
provided that "All vacancies shall be filled as they occur". In orde r to comply with this legal 
obligation, the selection process should have started at the beginning of 2017, which would have 
made it possible to comply with all the legal deadlines. In addition, Mexico said that, although the 
countries in question had rece ived information about the lack of consensus to open the selection 
process, they did not know the reason as to why it was not possible to reach consensus. Mexico 
said that they would therefore appreciate being informed, as soon as possible, as to why there  was 
no consensus. The delay in starting the selection procedure could create a negative precedent for 
future selection processes and should therefore be avoided. In addition, this situation created 
uncertainties for the conduct of the campaign of each can didate and could create obstacles for 
delegations to meet with the candidates. This was not appropriate in relation to such an important 
matter. Therefore, the countries in question urged the Chairman to submit a concrete proposal to 
initiate the selection  process. They also urged other Members to act responsibly and to take a 
decision promptly, which would allow the DSB to overcome the delay and start the process. The 
countries in question were ready to work with the Chairman and, if necessary, they would submit a 
proposal for a decision by the DSB, with a view to initiating the selection process. Such a proposal 
could be submitted for consideration by the DSB at its meeting scheduled for 22  May 2017.  
6.3.  The representative of the European  Union  said that his d elegation referred to its statement 
made at the 21  March  2017 DSB meeting. The EU said that it regretted that the selection process 
for the two vacancies arising in 2017 had not yet been launched. The EU encouraged the Chairman 
to continue to consult with Members so that the selection process could be launched without delay.  
6.4.  The representative of Canada  said that his country was concerned and disappointed that 
lengthy consultations had not produced consensus on the manner in which to proceed to find 
success ors to the members of the Appellate Body whose terms would end in  2017. As had been 
pointed out by Mexico, Article  17 of the DSU clearly required the DSB to fill vacancies on the 
Appellate Body as they arose. By failing to find a way forward after several months of 
consultations, Members were – collectively – failing to fulfil this responsibility. Canada said that it 
did not have strong views on whether it was preferable to have one selection process to fill both WT/DSB/M/396  
 
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  vacancies arising in  2017 or to have a separ ate selection process for each vacancy. In the interest 
of achieving consensus, Canada said that it was prepared to proceed with either option. Canada 
did, however, consider that it was important to adhere to the limits regarding terms of Appellate 
Body me mbers set out in Article  17.2 of the DSU. Thus, Canada strongly encouraged the DSB to 
launch a selection process or processes in a timely manner so that a successor for Mr. Ramírez 
Hernández could take office as soon as possible following the expiration of  his term on 
30 June 2017. The DSB would need to act quickly in order to make this possible. Indeed, given the 
timelines usually required for selection, it was likely that Members were already facing a period of 
time where the Appellate Body would not be a t full strength. Canada was troubled by this given 
the demands on the Appellate Body. Canada, therefore, urged all Members to redouble efforts to 
achieve consensus on this matter.  
6.5.  Canada also drew attention to labels being attached to certain seats on the Appellate Body. 
The DSB had heard, on more than one occasion, the seat that would be vacated by Mr. Ramírez 
Hernández referred to as the " Latin seat". Similarly, Canada had heard both the seat that would be 
vacated by Mr. Van den Bossche referred to as the  "EU seat" and that other seats on the Appellate 
Body "belonged" to other Members or geographic areas. Canada questioned the appropriateness of 
these labels. While Article  17.3 of the DSU provided that Appellate Body membership had to be 
broadly representa tive of the Membership of the WTO, there was no agreement among 
WTO Members that a particular Appellate Body seat should be attached to either a specific Member 
or that those seats should be limited to certain geographic regions that, in totality, excluded  some 
areas of the world. Were this to occur, nationals of a considerable number of WTO Members would 
never have the opportunity to serve on the Appellate Body, and this would undoubtedly diminish 
the ability of the WTO Appellate Body to broadly represent the Membership of the WTO. To the 
extent that some Members considered there to be geographical limitations to the seat vacated by 
Mr. Ramírez Hernández, they should at least consider it to be the "Americas and Caribbean" seat. 
Moreover, in considering the selection of future members of the Appellate Body, Canada 
underlined the importance of considering a candidate on his or her merits in order to select the 
best individual to fulfil the responsibilities of this important office.  
6.6.  The representative of Austra lia recalled her country's statement made at the 21  March  2017 
DSB meeting and register its disappointment that, once again, the DSB was not in a position to 
launch the process for the appointment of new Appellate Body members at the present meeting. 
Austr alia reiterated its view that the proper functioning of the Appellate Body was best served by 
the timely appointment of new members to fill vacancies as they arose. Further, Australia noted 
that a number of candidates had already been nominated by Members for consideration in 
anticipation of the commencement of a selection process. In light of this, it was increasingly critical 
that clarity on procedures and time -frames was forthcoming in order to ensure that any selection 
process was fair and transparent a nd that Members were afforded sufficient time to make informed 
choices. Consistent with past practice, Australia hoped that Members could work together to agree 
on an effective, transparent, and merits -based process to determine the appointment of the new 
Appellate Body members. Australia encouraged all Members to demonstrate pragmatism and 
flexibility to reach such an agreement and to ensure the timely appointment of members to the 
Appellate Body. Australia also wished to comment on the issue raised by Can ada in its statement 
made at the present meeting, regarding the informal allocation of seats on the Appellate Body to 
particular Members or regions. For Australia's part, merit was, and would remain, the foremost 
criteria in its assessment of potential App ellate Body members. This was enshrined in the first 
sentence of Article  17.3 of the DSU. Further, nothing in the DSU entitled any WTO Member or 
region to automatic appointment of its nominated candidate to the Appellate Body.  
6.7.  The representative of India said that, as his country had stated at the 21  March  2017 DSB 
meeting, India echoed the views of Members who had spoken expressing concern about the delay 
in the initiation of the Appellate Body selection process. Though the reasons for the disagreement 
were evident – a single or independent processes – India was not entirely clear on the underlying 
rationale for the impasse. This had not been evident from the responses of Members that were 
seeking a single process or independent processes. As a matter of cl arification, India said that it 
would be of great value to the Membership to know past practices in similar situations, which could 
be of some guidance in resolving the impasse. How had the Membership resolved similar situations 
in the past? It would also be useful for the Membership to understand what the underlying 
concerns were in going ahead with independent processes or filling up the vacancies as they arose. 
In India's view, it would be prudent to go ahead with filling both vacancies, in the interest of 
efficiency of process, or at least the first vacancy. There were many candidates already under WT/DSB/M/396  
 
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  consideration. A few of them were already canvassing, both in Geneva, and in capitals. It was very 
difficult to engage without a clear time -frame for the appo intment process or clarity on next steps. 
India said that it would like to know what exactly the impediment was to going forward with filling 
the first vacancy arising out of Mr. Ramírez Hernández term coming to an end. India would request 
the Chairman to further elaborate his understanding of the reasons for the impasse as a result of 
his consultations. The DSB had had an impasse a few months before the present meeting, on the 
selection of Appellate Body members, but, now, the impasse seemed to be on the p rocess of the 
appointment itself. India said that it hoped that Members found a way of expediting the process of 
appointments to the Appellate Body, without further delay.  
6.8.  The representative of New Zealand  said that her delegation thanked the Chairman for his 
progress report and efforts to find consensus. New Zealand continued to express its 
disappointment with the situation and urged Members to agree on a process for the  2017 
appointments as soon as possible. Another month had passed and it seemed the DSB was no 
closer to agreeing on a process, let alone on a consensus candidate, to fill the position. 
New Zealand said that time was running out and urged Members to be pragmatic and constructive 
so as to avoid the situation arising where there was a vacancy o n the Appellate Body. Even with a 
full bench, the Appellate Body had workload and resource constraints and a queue of disputes to 
be heard. Members should do their utmost to avoid exacerbating this situation. New Zealand said 
that it was prepared to consid er any constructive solution that expedited appointments. It was also 
prepared to engage in discussions on how to address other causes of delay in Appellate Body 
hearings. New Zealand said that it looked forward to working with other Members, and the 
Chairman, in this regard.  
6.9.  The representative of China  said that, as her country had expressed at the 21  March  2017 
DSB meeting, China would like to join other Members to reiterate its systemic concern about the 
delay in the Appellate Body selection process. As a major user of the WTO dispute settlement 
system, China said that it had a strong interest in ensuring the efficient and smooth operation of 
the Appellate Body, and therefore it wished to have the appointment process begin as soon as 
possible. China said that it believed this was the common wish of all WTO Members, especially 
given the increasing workload pressures faced by the Appellate Body. China called upon Members 
to engage with this issue flexibly and constructively and to join efforts to find a solu tion 
expeditiously.  
6.10.   The representative of the United  States  said that the United  States  appreciated the 
information the Chairman had provided and that it looked forward to consulting with the Chairman, 
and other Members, on the process to fill these import ant positions.  
6.11.   The representative of the Russian  Federation  said that, taking into account delays with 
previous appointments of Appellate Body members, and the consequences  that such delays  had 
caused, her country hoped that this time the situation would n ot be the same, and that it would 
not increase the strain on the Appellate Body workload. Russia strongly encouraged the launch of 
the Appellate Body appointment process, as soon as possible.  
6.12.   The Chairman  thanked Members for their statements made at the pr esent meeting. He said 
that he was very encouraged by the number of statements , which had highlighted the importance 
that the Members attached to resolving this issue. As he had indicated, he would continue to work 
with delegations in order to be able to s ubmit a proposal regarding the Appellate Body 
appointments as soon as possible.  
6.13.   The DSB took note  of the statements.  
7  DISPUTE SETTLEMENT W ORKLOAD  
A.  Statement by the Chairman  
7.1.  The Chairman , speaking under "Other Business", said that he wished to make a repo rt to 
provide the DSB with information about the Appellate Body's workload, the number of disputes 
before panels and at the panel composition stage, and the ability of the Secretariat to meet 
expected demand over the coming period. This information reflect s the status of disputes up until 
the present meeting. Regarding panels, there were currently 17 active panels (including five WT/DSB/M/396  
 
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  panels under Article  21.5 of the DSU) that had not yet issued a final report to the parties. Multiple 
disputes that were being co nsidered simultaneously by the same panel were being counted as one. 
As of the present meeting, all composed panels had been assigned staff to assist them and were 
either active or in the process of commencing proceedings. There were a further ten panels a t the 
composition stage. This did not count panels for which there had been no composition activity in 
the last twelve months. In addition, four final panel reports that had been issued to the parties 
were currently being translated. Regarding appeals, the  Appellate Body was currently dealing with 
six appeals, including the extremely complex compliance proceedings in "EC and Certain Member 
States – Large Civil Aircraft (Airbus)". Two of these appeals could not be staffed at this point. Up 
to three additiona l appeals could be filed within the next three months, including an appeal in the 
extremely complex compliance proceedings in "US – Large Civil Aircraft (Boeing)". Regarding 
arbitrations, three matters had been referred to arbitration under Article  22.6 of  the DSU.  
7.2.  The DSB took note  of the statement.  
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