RESTRICTED  
  
WT/DSB/M/419  
 
8 February 2019  
(19-0752) Page: 1/41 
Dispute Settlement Body  
26 September  2018    
 
MINUTES OF MEETING  
HELD IN THE CENTRE  WILLIAM RAPPARD  
ON 26  SEPTEMBER  2018 
Chairperson: Ms. Sunanta  Kangvalkulkij (Thailand)  
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 – Sectio n 110(5) of the US Copyright Act: Status report by  
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 meas ures on large residential  
washers from Korea: Status report by the United  States  ................................ ..........................  5 
E.  European  Union – Anti-dumping measures on biodiesel from Indonesia: Status report  
by the European  Union  ................................ ................................ ................................ ........  6 
F.  United  States – Certain methodologies and their application to  anti-dumping proceedings 
involving China: Status report by the United  States  ................................ ................................ . 6 
G.  Indonesia – Measures concerning the importation of chicken meat and chicken  
products: Status report by Indonesia ................................ ................................ .....................  7 
H.  United  States – Anti-dumping measures on certa in oil country tubular goods from  
Korea: Status report by the United  States  ................................ ................................ ..............  8 
2   UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OF FSET ACT OF  2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE  DSB ..........................  9 
A.  Statement by the European  Union  ................................ ................................ ....................  9 
3   EUROPEAN  COMMUNI TIES AND CERTAIN MEM BER STATES – MEASURE S 
AFFECTING TRADE IN L ARGE CIVIL AIRCRAFT:  IMPLEMENTATION OF T HE 
RECOMMENDATIONS ADOPTED BY THE DSB  ................................ ................................ .. 10 
A.  Statement by the United  States  ................................ ................................ ...................... 10 
4   ARTICLE  17.6 OF THE UNDERSTANDING ON  RULES AND PROCEDURE S 
GOVERNING THE SETTLE MENT OF DISPUTES AND  APPELLATE REVIEW OF  PANEL 
FINDINGS OF FACT, IN CLUDING DOMESTIC LAW : STATEMENT BY CHINA  .....................  11 
5   CANADA – MEASURE S GOVERNING THE SALE  OF WINE ................................ .............  24 
A.  Request for the establishment of a panel by Australia  ................................ ........................ 24 WT/DSB/M/419  
 
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  6   UNITED  STATES – SAFEGUARD MEASURE ON  IMPORTS OF CRYSTALL INE 
SILICON PHOTOVOLTAIC  PRODUCTS  ................................ ................................ .............  26 
A.  Request for the establishment of a panel by the Republic of Korea  ................................ ......26 
7   UNITED  STATES – SAFEGUARD MEASURE ON  IMPORTS OF LARGE RE SIDENTIAL 
WASHERS  ................................ ................................ ................................ .......................  26 
A.  Request for the establishment of a  panel by the Republic of Korea  ................................ ......26 
8   KOREA – SUNSET R EVIEW OF ANTI -DUMPIN G DUTIES ON STAINLES S STEEL  
BARS  ................................ ................................ ................................ ..............................  27 
A.  Request for the establishment of a panel by Japan  ................................ ............................ 27 
9   APPELLATE BODY A PPOINTMENTS: PROPOSA L BY ARGENTINA; AUST RALIA; THE 
PLURINATIONAL STATE OF BOLIVIA; BRAZIL; CANADA; CHILE; CHINA ; COLOMBIA; 
COSTA  RICA; DOMINICA N REPUBLIC; ECUADOR;  EGYPT; EL  SALVADOR;  THE 
EUROPEAN  UNION; GUATEMALA; HONDU RAS; HONG  KONG, CHIN A; ICELAND; INDIA; 
INDONESIA; ISRAEL; K AZAKHSTAN; KOREA; ME XICO; NEW  ZEALAND; N ICARAGUA; 
NORWAY; PAKISTAN; PA NAMA; PARAGUAY; PERU ; THE RUSSIAN  FEDERA TION; 
SINGAPORE; SWITZERLA ND; THE SEPARATE CUS TOMS TERRITORY OF TA IWAN,  
PENGHU, KINMEN AND M ATSU; TURKEY; UKRAIN E; URUGUAY; THE BOLI VARIAN 
REPUBLIC OF VENEZUEL A AND VIET  NAM ................................ ................................ ...... 28 
10   FOSTERING A DISCUSSION ON THE FU NCTIONING OF THE APP ELLATE BODY 
(JOB/DSB/2): STATEME NT BY HONDURAS  ................................ ................................ .... 35 
11   INDONESIA – SAFEGUARD ON CERTAIN IR ON OR STEEL PRODUCTS  ......................  41 
A.  Statement by Indonesia  ................................ ................................ ................................ .41 
 
 
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 (W T/DS184/15/ Add.187 ) 
B.  United  States  – Section  110(5) of the US Copyright Act: Status report by the United States 
(WT/DS160/24/ Add.162 ) 
C.  European  Communities – Measures affecting the approval and marketing of biotech products: 
Status report by the  European  Union (WT/DS291/37/ Add.125 ) 
D.  United  States – Anti-dumping and countervailing measures on large residential washers from 
Korea: Status report by the United  States (WT/DS464/17/Add.9)  
E.  European  Union – Anti-dumping measures on biodiesel from Indonesia: Status report by the 
European  Union (WT/ DS480/8 /Add.1 ) 
F.  United  States – Certain methodologies and their application to anti -dumping proceedings 
involving China: Status report by the United  States (WT/DS471/17/Add.1)  
G.  Indonesia – Measures concerning the importation of chicken meat and chicken products: Status 
report by Indonesia (WT/DS484/18)  
H.  United  States – Anti-dumping measures on certain oil country tubular goods  from Korea: Status 
report by the United  States (WT/DS488/12)  
 
 
1.1.  The Chairperson  noted that there were eight sub -items under this Agenda item concerning 
status reports submitted by delegations pursuant to Article  21.6 of the DSU. She recall ed that  
Article  21.6 require d that: " [u]nless the DSB decides otherwise, the issue of implementation of the 
recommendat ions 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 WT/DSB/M/419  
 
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  Agenda until the issue is resolved".  Under this Agenda item, she invite d delegations to provide 
up-to-date information about their compliance efforts. She also  remind ed delegations that, as 
provided for in Rule  27 of the Rules of Procedure for DSB meetin gs: "[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".  She 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.187)  
1.2.  The Chairperson  drew attention to document WT/ DS184/15/Add.187, which contained  the 
status report by the United  States on progress in the implementation of the DSB's recommendations 
in the case concerning anti -dumping measures on certain hot -rolled steel products from Japan.  
1.3.  The representative of the United  States  said that the  Unite d States had provided a status report 
in this dispute on 13 September  2018, 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 Japan  thank ed the United States for its latest status 
report and the statement made at the present meeting . Japan , once again , called on the 
United  States to fully implement the DSB 's recommendations and rulings in order  to resolve this 
matter.  
1.5.  The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
B.  United  States – Section 110(5) of the US Copyright Act: Status report by the 
United  State s (WT/DS160/24/Add.162)  
1.6.  The Chairperson  drew attention to document WT/DS160/24/Add.162, which contain ed the 
status report by the United  States on progress in the implementation of the DSB's recommendations 
in the case concerning Section  110(5) of the US Co pyright Act.  
1.7.  The representative of the United  States  said that t he United States had provided a status report 
in this dispute on 13 September  2018, in accordance with  Article  21.6 of the DSU. The 
US Administration 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 the  EU thank ed the United States for its 
status report, as well as for its statement made at the present meeting . The EU  wished to refer to 
its statements made at previous DSB meetings under this Agenda item and reiterate d that the EU 
would like to resolve this case as soon as possible.  
1.9.  The representative of China said that t he United States had submitted its 163rd status report 
in this dispute , which was  not materially different from the reports submitted by the US ahead of  
previous DSB meetings, or from the first one submitted by the United States in November 2004. 
No further progress toward implementation was reported  at the present meeting . He said that China 
wished to know the reasons why the US had failed to implement the DSB's recommendations and 
rulings adopted 18  years ago. China said that a s a result of such persistent non -compl iance, 
Section  110(5) of the US Copyright Act , which had long ago been found inconsistent with the 
requirements of the Berne Convention and the TRIPS Agreement , was still in effect. He said that 
the US continu ed to  fail to accord to intellectual property  right holders the minimum standard of 
protection required by the TRIPS Agreement. He said that a s such, the US remain ed the only Member 
who failed to implement the DSB's recommendations and rulings under the TRIPS Agreement long 
after the expiration of the  reasonable period of time ( RPT). Article  II.2 of the Marrakesh Agreement 
Establishing  the World Trade Organization  provide d that: "[t]he agreements and associated legal 
instruments included in Annexes  1, 2 and 3 are …  binding on all Members ". China urged the WT/DSB/M/419  
 
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  United States to faithfully hono ur its commitments under the DSU and the TRIPS Agreement by 
implementing the DSB 's recommendations and rulings in this dispute. China a gain strongly 
suggest ed that the U nited States consider including in its next status report the specific reasons as 
to why there was no implementation  of the DSB 's recommendations and rulings in this dispute . 
1.10.   The representative of the United  States  said that as the U nited States had noted at prior 
meetings of the DSB, by intervening under this item, China attempt ed to give the appearance of 
concern for intellectual property rights. The United States  said that China had been engaging in 
industrial policy which had resulted in the transfer and theft of i ntellectual property and technology 
to the detriment of the United States and its workers and businesses. China 's stated intention was 
to achieve global dominance in advanced technology. This cause d harmful trade -distortive policies 
and practices. These unfair policies and practices affect ed all Members, not just the United  States. 
The aggregate impact of China 's policies worldwide was much higher than the estimated 
US$50 billion in annual harm some of China 's policies were causing to the United States. T hese 
policies and practices force d innovators to hand over their technology and know -how as the price of 
doing business in China. China also used non-economic means to obtain technology, such as using 
State-controlled or -influenced funds and companies to buy up businesses solely for purposes of 
acquiring technology for domestic use, or imposing burdensome intellectual property licensing 
requirements in China. The best way for China to support fairness in the world trading system was 
to remedy the problems it had created. China should change its behavio ur: stop distorting markets, 
stop forcing companies to transfer technology, and create a level playing field that would  give all 
countries a better chance to succeed. For now, the United States could say that,  as the companies 
and innovators of China and other Members well knew, the intellectual property protection that the 
United  States provide d within its own territory equal led or surpasse d that of any other Member. 
Indeed, as China also well knew, none of the damaging technology transfer practices of China that 
the United States  had discussed at recent DSB meetings were practices that Chinese companies or 
innovators face d in the United States.  
1.11.   The representative of China  said that t he US intervent ion tried to derail the discussion under 
this Agenda item by suggesting that its intellectual property  protection was superior to that of China. 
China disagreed . First , one thing was obvious : China had fully complied with the TRIPS A greement 
while the U nited States had not. China  believe d that until the U nited States faithfully and entirely 
honoured its obligations  under the TRIPS Agreement , the comparison suggested by the U nited States 
was clearly deprived of  legal basis. Second , Article  21.6 of the DSU entitle d any Member to raise 
any issue regarding the implementation of the DSB's  recommendations or rulings before  the DSB at 
any time following their adoption  by the DSB . The situation of the  Member raising implementation 
issues was  by no means a precondi tion for exercising that right, nor did it prejudice  the merit of that 
Member 's statement. Third , as to the false claims against China 's protection of intellectual property , 
China  referred to its statement made at  the 28 May 2018 DSB meeting. As always, China welcome d 
and was willing to engage in good faith and objective discussions with other Members regard ing any 
intellectual property  issue. Finally, China  emphasize d that the issue was whether the U nited States 
had implemented the DSB's recom mendations and rulings in this dispute . China said that  the answer 
was negative. China,  once again , urged the U nited States to faithfully and promptly meet its 
implementation obligation.  
1.12.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
C.  European  Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European  Union (WT/DS291/37/ADd.125)  
1.13.   The Chairperson  drew attention to document WT/DS291/37/Add.125, whic h contain ed the 
status report by the European  Union on progress in the implementation of the DSB's 
recommendations in the case concerning measures affecting the approval and marketing of biotech 
products.  
1.14.   The representative of the European  Union  said that the EU continue d to progress with the 
authori zations where the European Food Safety Authority had finalized its scientific opinion and had 
concluded that there were no safety concerns. On 11  September  2018, two draft authori zations were 
presented for vote to the member States committee: one for the renewal of a genetically modified WT/DSB/M/419  
 
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  maize seed1 and one new authori zation for genetically modified maize.2 He said that a s the votes 
had resulted in "no opinion", the draft measures would  be submitted for a vote to the Appeal 
Committee in October. The EU remained  committed to acting in line with its WTO obligations. More 
generally, the EU recall ed that its approval system was not covered by the DSB's recommendations 
and rulings.  
1.15.   The represent ative of the United  States  said that the  United States thank ed the 
European  Union (EU) for its status report and its statement made at the present meeting . The 
United  States continue d to remain concerned with the EU's measures affecting the approval of 
biotech products. Delays persist ed and affect ed the dozens of applications that had been awaiting 
approval for months or years, or that had already received approval. Even when the EU finally 
approve d a biotech product, EU member States continue d to impose  bans on the supposedly 
approved product. As the U nited States had discussed at several prior DSB meetings, the EU 
maintain ed legislation that permit ted EU member States to "opt out " of certain approvals, even 
where the European Food Safety Authority (EFSA ) had concluded that the product was safe. Of note, 
at least 17 member States, as well as certain regions within EU member States, had submitted 
requests to opt out of EU approvals. The United States again urged the EU to ensure that all 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.  
1.16.   The representative of the European  Union  said that the EU wished to respond to the second 
part of the US statement . He said that t he United States had referred to what it called the "opt -out 
Directive" of the EU. He then repeat ed some of the points that the EU  had already made in previous  
DSB meetings. The first point was that no EU m ember State ha d imposed any ban thus  far. The 
second point was that, under the terms of the "opt-out Directive", a n EU member State could adopt 
measures prohibiting or restricting cultivation only if such measures : were in line with EU law; were 
reasoned, proportional and non -discriminatory; and were based on compelling grounds. The third 
point was that this opt -out Directive was not covered by the DSB 's recommendations and rulings  in 
this dispute . 
1.17.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
D.  United  States – Anti-dumping and countervailing measures on large residential 
washers from Korea: Status report by the United  States (WT/DS464/17/Add.9)  
1.18.   The Chairperson  drew attention to document WT/DS464/17/Add.9, which contain ed the 
status report by the United States on progress in the implementation of the DSB's recommendations 
in the case concerning anti -dumping and countervailing measures on large res idential washers from 
Korea.  
1.19.   The representative of the United  States  said that t he United States had provided a status 
report in this dispute on 13 September  2018, in accordance with Article  21.6 of the DSU. On 
15 December  2017, the United States Trade Representative had requested that the US Department 
of Commerce make a determination under section  129 of the Uruguay Round Agreements Act to 
address the DSB's recommendations relating to the Department 's countervailing duty i nvestigation 
of washers from Korea. On 18 December  2017, the Department of Commerce had initiated a 
proceeding to make such determination. Following initiation, Commerce had issued initial and 
supplemental questionnaires seeking additional information. On 4 April 2018, Commerce had issued 
a preliminary determination revising certain aspects of its original determination. Following issuance 
of the preliminary determination, Commerce had provided interested parties with the opportunity to 
submit comments on t he issues and analysis in the preliminary determination and rebuttal 
comments. Commerce had reviewed those comments and rebuttal comments and had taken  them 
into account for purposes of preparing the final determination. On 4 June 2018, Commerce had 
issued  a final determination, in which Commerce had revised certain aspects of its original 
determination. Specifically, Commerce had revised the analysis underlying the CVD determination, 
as it pertain ed to certain tax credit programs, in accordance with findings adopted by the DSB. The 
                                                
1 Maize NK603 x MON 810.  
2 Maize MON 87427 x MON 89034 x 1507 x MON 88017 x 59122.  WT/DSB/M/419  
 
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  United  States continue d to consult with interested parties on options to address the 
recommendations of the DSB relating to anti -dumping measures challenged in this dispute . 
1.20.   The representative of  Korea  said that Korea  thank ed the United States for its status report 
and the statement made at the present meeting . He noted  however  that two years after  the DSB 
had adopted the Panel and Appellate Body report s, the United Stated had not yet implemented the 
DSB's recommendations and rulings. Korea,  once again , urged the United States to faithfully 
implement the DSB's recommendations and rulings in this dispute in order to fully comply with its 
obligations under the covered Agreements.  
1.21.   The representative of  Canada  said that Canada was concerned that the United States had not 
implemented the DSB 's recommendations and rulings in this dispute. In particular, Canada was  
deeply disappointed that, despite the expiry of the reasonab le period of time, the United  States 
continue d to collect cash deposits from Canadian exporters based on a methodology that had been  
found to be "as such " inconsistent with WTO obligations in this dispute.  
1.22.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
E.  European  Union – Anti-dumping measures on biodiesel from Indonesia: Status report 
by the European  Union (WT/DS480/8/Add.1)  
1.23.   The Chairperson  drew attention to document WT/DS480/8/Add.1, which contain ed the status 
report by the European Union on progress in the implementation of the DSB's recommendations in 
the case concerning anti -dumping measures on biodiesel from Indonesia.  
1.24.   The representative of the European  Union  said that the EU  intend ed to comply wi th the 
recommendations and rulings of the DSB in this dispute by the agreed reasonable period of time, 
which would  expire on 28  October  2018. On 28  May 2018, the European Commission had reopened 
the anti -dumping investigation in this case by publication of  a Notice in the Official Journal of the 
European  Union.3 On 24  July 2018, the European Commission had disclosed the findings of this 
investigation to interested parties who were given the opportunity to provide their comments. The 
relevant procedures on t he basis of th is Notice were ongoing and were expected to be finali zed in 
the near future.  
1.25.   The representative of  Indonesia  said that Indonesia  thank ed the EU for its status report and 
its statement made at the present meeting . Indonesia welcome d the fact that the EU had reopened 
the anti -dumping investigation (the "Investigation ") concerning imports of biodiesel originating 
notably in Indonesia by publication of a Notice in the Official Journal of the EU on 28  May 2018 (the 
"Notice"). Indonesia also took note of the Notice 's invitation to interested parties to provide views, 
information and supporting evidence. She said that Indonesia was an interested party to the 
Investigation . Accordingly, Indonesia had provided its views, relevant information and eviden ce in 
the Investigation . As stated by the EU at the present meeting  and at previous  DSB meetings , the 
ongoing Investigation was expected to be finali zed in the near future , Indonesia hoped  that the 
Investigation would be completed  before the expiry of the reasonable period of time  on 
28 October  2018, and that it would be in line with the DSB's recommendations and rulings in this 
dispute.  
1.26.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
F.  United  States – Certain methodologies and their application to anti -dumping 
proceedings involving China: Status report by the United  States (WT/DS471/17/Add.1)  
1.27.   The Chairperson  drew attention to document WT/DS471/17/Add.1, which contain ed the 
status report by the United States on progress in the implementation of the DSB's recommendations 
in the case concerning certain methodologies and their application to anti -dumping proceedings 
involving China.  
                                                
3 OJ C 181, 28.05.2018, p. 5.  WT/DSB/M/419  
 
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  1.28.   The representative of the United  States  said that t he United States had provided a status 
report in this dispute on 13  September  2018, in accordance with Article  21.6 of the DSU. As 
explained in that report, the United States continue d to consult with interested parties on options to 
address the recommendations of the DSB.  
1.29.   The r epresentative of  China  said that China thank ed the U nited States for its status report 
and its statement  made at the present meeting . However , China was, once again , very disappointed 
with the US status report and  deeply concerned that the U nited States remain ed in the process of 
consulting with interested parties on options to address the DSB's recommendations in this dispute. 
China noted that the status report had further confirmed that the U nited States had not yet made 
any concrete effort nor had initiated any substantive action for t he implementation of the DSB's 
recommendations  and rulings . The US inaction and delay regarding  implementation had been 
seriously infringing China 's legitimate economic and trade interests and was harming the rule -based 
multilateral trading system as well as the interests of all Members . China had thus requested 
authorization from the DSB to suspend concessions or other obligations under Article  22.2 of the 
DSU, and the matter had been referred to arbitration under the covered agreements pursuant to 
Article  22.6 of the DSU. China,  once again , urged the U nited States to faithfully implement the DSB 's 
recommendations in this dispute in order to fully comply with its obligations under the covered 
agreements.  
1.30.   The represe ntative of  the United  States  said t hat the United States took note of China 's 
statement and would  convey it to capital. The United States was willing to discuss this matter with 
China on a bilateral basis. To be clear, however, it was incorrect to suggest that the United  States 
had taken no action. As the United States had  previously  reported to the DSB, the United  States 
continue d to consult with interested parties on options to address the DSB's recommendations in 
this dispute . That internal process was ongoing. In addition, the United States was aware of China 's 
request pursuant to Article  22.2 of the DSU for authorization to suspend concessions and other 
obligations. China 's decision to proceed in that regard was disappointing and not constructive. On 
19 September  2018, the United States had objected to the level of suspension proposed by China 
on 9 September  2018, referring the matter to arbitration pursuant to Article  22.6 of the DSU.  
1.31.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
G.  Indonesia – Measures concerning the importation of chicken meat and chicken 
products: Status report by Indonesia (WT/DS484/18)  
1.32.   The Chairperson  drew attention to document WT/DS484/18, which contain ed the status report  
by Indonesia on progress in the implementation of the DSB's recommendations in the case on 
measures concerning the importation of chicken meat and chicken products.  
1.33.   The representative of Indonesia  said that Indonesia was submit ting its status report in 
accordance with Article  21.6 of the DSU. On 22  November  2017, the DSB had adopted its 
recommendations and rulings in this dispute . At the DSB meeting on 22  January  2018, Indonesia 
had informed the DSB  of its intention to implement the recommendations and rul ings of the DSB 
regarding this dispute . Indonesia and Brazil had then  informed the DSB, on 15  March  2018, of their  
agreement on a reasonable period of time (RPT) for Indonesia to implement the recommendations 
and rulings of the DSB  in this dispute . The RPT had elapse d on 22  July 2018. She said that Indonesia 
had undertaken the necessary steps to adjust the relevant measures by amendi ng its regulations , 
namely: (i) Ministry of Agriculture Regulation No.  23/2018, which entered i nto force on 
24 May 2018; and (ii) Ministry of Trade Regulation No.  65/2018, which entered into force on 
31 May 2018. Indonesia  had notified these regulations to the Committee o n Import Licensing on 
13 August  2018 in document s G/LIC/N/2/IDN/39 and G/LIC/N/2/IDN/41. Indonesia stood  ready to 
continue to consult  and remain ed in constant communication with Brazil with respect to any matter 
relating thereto.  
1.34.   The representative of  Brazil  said that Brazil thank ed Indonesia for its status report and its 
statement made at the present meeting . The Panel in this dispute had found that the Indonesian 
import licensing regulations create d unjustified restrictions on trade in at least three respects : (i) the 
regulations  establish ed, through a "positive list requirement ", a selective list of product s subject to 
licensing, which exclude d some tariff lines for chicken meat and chicken products; (ii) the regulations  WT/DSB/M/419  
 
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  limited the purposes of use or place of sale of imported products by means of distribution plans and 
distribution reports; and (iii) the regulations  did not allow under any circumstances the introduction 
of changes to the terms of the import licenses that were granted. She said that  according to the 
Panel, Indonesia had also been in breach of the SPS Agreement because it  delay ed, without plausible 
justification, the approval of the Brazilian veterinary health certificate . She said that t he Panel had 
not identif ied any sanitary reason s for Indonesia's  delay. Brazil underst ood that Indonesia had taken 
some steps towards the impleme ntation of the DSB's recommendations and rulings regarding this 
dispute . In this regard, Brazil note d that Indonesia 's positive list requirement had not cease d to 
exist. Indonesia had chose n to maintain the list and to include some of the HS codes of chick en meat 
and chicken products  that had been the subject of Brazil 's complaint. However, o ne HS code had yet 
to be included to Indonesia 's positive list. Indonesia had further eliminated the requirement of 
distribution reports with information regarding use or place of sale of imported chicken meat and 
chicken products. However, the requirement of distribution plans continue d to be in force by virtue  
of Article  22(1)(l) of Ministry of Agriculture  Regulation  34/2016. Moreover, Indonesia had introduced 
the possibility of making changes to the terms of the import licenses. Notwithstanding this, 
amendments to import licenses were subject to several requirements and sanctions on impor ters in 
the event that these requirements were not strictly observed continue d to apply.  Brazil noted that 
any measure taken by Indonesia was to no avail if Indonesia failed to approve Brazil 's veterinary 
health certificate for the importation of chicken meat and chicken products. As had been  confirmed 
in this dispute, Indonesia had caused an undue delay in the approval of the veterinary health 
certificate in a way that was inconsistent with Arti cle 8 and Ann ex C(1)(a) of the SPS Agreement  
since at least 2009, that is, almost ten years ago. Recently, at Indonesia 's request, Brazil had sent 
responses to a new questionnaire so that Indonesia could approve Brazil 's veterinary health 
certificate. Braz il reiterate d its understanding that there had never been outstanding information 
that had prevented Indonesia from completing  the approval procedure. The fact that Indonesia 
seem ed to consider that there was a need for update d information that had already been submitted 
result ed from a delay that the Panel had found to be "undue" and to have been caused by Indonesia, 
something that could not be attributed to Brazil. Brazil therefore  urged Indonesia to approve Brazil 's 
veterinary health certificate i n a timely manner and to fully comply with the DSB 's recommendations 
and rulings in th is dispute. Brazil remain ed ready to work with Indonesia with respect to any aspect 
of this dispute . 
1.35.   The DSB took note of the statements and agree d to revert to this matt er at its next regular 
meeting.  
H.  United  States – Anti-dumping measures on certain oil country tubular goods from 
Korea: Status report by the United  States (WT/DS488/12)  
1.36.   The Chairperson  drew attention to document WT/DS488/12, which contain ed the status report 
by the United States on progress in the implementation of the DSB's recommendations in the case 
concerning anti -dumping measures on certain oil country tubular goods from Korea.  
1.37.   The representative of the United  States  said that t he United States had provided a status 
report in this dispute on 13 September  2018, in accordance with Article  21.6 of the DSU. As 
explained in that report, the United States continue d to consult with interested parties on options to 
address the recommendations of the DSB.  
1.38.   The representative of  Korea  said that  Korea thank ed the United States for its status report. 
Korea had been closely monitoring actions taken by the US regarding the implementation of the 
DSB's recommendations and rulings in this dispute. He said that t he reasonable period of time for 
the implementation of the DSB's recommendations and rulings would expire on 12  January  2019. 
Korea expect ed that the United States was working in good faith to keep up with its obligation to 
implement the DSB 's recommendations  and rulings  in this dispute . He said that Korea h owever had 
yet to learn how the US had taken necessary steps, including procedures under Section s 123 
and 129 of the Uruguay Round Agreements Act, to implement the DSB's recommendations and 
rulings. Korea consider ed the information contained in the US status report to be insufficient for 
Members to be aware of US implementation plans. Korea strongly request ed that the U nited States 
resolve the uncertainty surrounding implementation without delay, and that it  eventually bring its 
measures into conformity with the covered agreements  within the reasonable period of time.  WT/DSB/M/419  
 
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  1.39.   The representative of  the United  States  said that t he United States took note of Korea 's 
statement and would convey it to capital. The United States was willing to discuss this matter with 
Korea on a bilateral basis. To be clear, however, it was incorrect to suggest that the United  States 
had taken no action. As the U nited States had reported to the DSB, the Unit ed States continue d to 
consult with interested parties on options to address the recommendations of the DSB. That internal 
process was ongoing.  
1.40.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
2  UNITED  STATES – CONT INUED DUMPING AND SU BSIDY OFFSET ACT OF  2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE  DSB 
A.  Statement by the European  Union  
2.1.  The Chairperson  said that t his item was on the Agenda of the present  meeting at the request 
of the European  Union . She then invite d the representative of the European  Union to speak.  
2.2.  The representative of the European  Union  said that t he EU request ed, once again , that the 
United  States stop transferring anti -dumping and countervailing duties to the US industry. He said 
that e very disbursement that was still taking place was clearly an act of non -compliance with the 
DSB's recommendations and rulings  in this dispute . The EU renew ed its call on the United States to 
abide by its clear obligation under Arti cle 21.6 of the DSU to submit status  reports in this dispute. 
He said that t he EU would continue to place this item to the Agenda of the DSB as long as the 
United  States had not implemented the DSB's recommendations and  ruling s in this dispute . 
2.3.  The represe ntative of  Canada  said that Canada thanked the EU for having placed this item on 
the Agenda of the DSB. Canada share d the EU's view that this item would continue under surveillance 
by the DSB until the United States had ceased to apply the Continued Dumping and Subsidy Offset 
Act of 2000. 
2.4.  The representative of  Brazil  said that a s an original party to this dispute, Brazil once again 
thanked the EU for placing  this item on the Agenda of the DSB. The m ain aspect of this item on the 
Agenda – beyond the dis cussion about the obligation or not for the concerned Member to continue 
to submit status reports – was that after more than 15  years of the DSB 's recommendations and 
rulings in this dispute, and more than 12  years after the date of the Deficit Reduction Act that had 
repealed the Byrd Amendment, millions of dollars in anti-dumping and countervailing duties charged 
on Brazilian and other Members ' exports were still being illegally disbursed to US domestic 
petitioners. Brazil called on the United States to fully comply with the DSB 's recommendations and 
rulings in this dispute.  
2.5.  The representative of  Chile said that  Chile wished to be associated with the concerns expressed 
by the EU, Canada and Brazil on this Agend a item. Chile hoped that compliance with the DSB's 
recommendations and rulings in this dispute would be achieved shortly  and that this matter would 
be resolved.  
2.6.  The representative of  the United  States  said that a s the United States had noted at previous 
DSB meetings, the Deficit Reduction Act – which include d a provision repeal ing 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 necessa ry to implement the DSB's recommendations and 
rulings in these disputes. The United States said that it recall ed, 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, almost 11  years ago. With respect to the EU's request for status 
reports in this matter, as the United  States  had explained at previous DSB meetings, there was no 
obligation under the DSU to provide further status reports once a Membe r announce d that it had 
implemented the DSB 's recommendations and rulings, regardless of whether the complaining party 
disagree d about compliance. The United States was pleased that Canada had clarified at the 
27 August  2018 DSB meeting  that it disagree d with the EU's view on the requirement to provide 
status reports. The United States said that Canada had explained that it did not consider that a 
Member had to submit a status report where the Member announce d that it had taken all actions 
necessary to com ply with the DSB 's recommendations and rulings. As the United States  had noted WT/DSB/M/419  
 
- 10 - 
 
  many times previously, the EU had demonstrated repeatedly that it share d this understanding, at 
least when it was the responding party in a dispute. Once again, this month the EU had provided no 
status report for disputes in which there was a disagreement between the parties on the EU's 
compliance. This include d the "EC – Large Civil Aircraft " dispute (DS316), in which the DSB had 
recently adopted two f urther reports finding  that the EU had not complied. The EU's decision to 
initiate yet another compliance proceeding under Article  21.5 of the DSU did not distinguish that 
dispute  from the present dispute : the EU had claimed compliance, and the U nited States disagree d. 
Based on the position taken by the EU, the United States  would have expect ed the EU to file a status 
report for th at Agenda item. The United States  failed to see how the EU 's behavio ur was consistent 
with the alleged systemic view it had been espousing under this Agenda item for more than ten 
years. As the EU was aware, the United States had announced in this dispute that it had implemented 
the DSB 's recommendations and rulings. If the EU disagree d, there would simply appear to be a 
disagr eement between the parties to this dispute about the situation of compliance.  
2.7.  The representative of  the European  Union  said that in  the second part of its statement , the 
United  States had mentioned that the E U had allegedly "failed to provide status reports" in various  
disputes that involve d the EU. He said that the EU disagree d with that part of the US statement. The 
EU remind ed delegations  that the EU  had provided status reports for all relevant disputes. For the 
present meeting of the DSB , the relevant disputes were the "EC – Approval and Marketing of Biotech 
Products" (DS291) dispute  and the "EU – Biodiesel  (Indonesia) " (DS480) dispute . The United  States 
had also mentioned the "EC – Large Civil Aircraft " (DS316) dispute. The European Union  noted that 
the United States had placed on the Agenda of the present  meeting a n item related to this dispute . 
He said that the EU would  respond to the United States in the context of  the discussion of that 
Agenda item. 
2.8.  The DSB took note of the statements.  
3  EUROPEAN  COMMUNITIES  AND CERTAIN MEMBER STATES – MEASURES AF FECTING 
TRADE IN LARGE CIVIL  AIRCRAFT: IMPLEMENT ATION OF THE RECOMME NDATIONS 
ADOPTED BY THE DSB  
A.  Statement by the United  States  
3.1.  The Chairperson  said that t his item was on the Agenda of the present  meeting at the request 
of the United  States . She then  invite d the representative of the United States to speak.  
3.2.  The representative of the United  States  said that t he United States note d that, once again , the 
EU had not provided Members with a status report concerning the "EC – Large Civil Aircraft " dispute  
(DS316). The United States had raised the  same issue at recent past DSB meetings, where the EU 
similarly had chose n not to provide a status report. Interestingly, at the DSB meeting of 
27 August  2018, the EU had argued that Article 21.6 of the DSU require d that "the issue of 
implementation … shall remain on the DSB 's agenda until the issue is resolved ". Also of interest, the 
EU had then argued that where the EU did not agree with another Member 's "assertion that it had 
implemented the DSB recommendations and rulings ", "the issue remain ed unresolved for the 
purposes of Article  21.6 DSU ". The United States therefore found it difficult to reconcile this stated 
EU position with the EU 's actions in this dispute. At the 27 August  2018 DSB meeting, the EU had 
admitted that there remain ed a disagreement as to whether the EU had complied with the DSB's 
recommendations and rulings in this dispute. The United States  said t hat under the EU 's own view, 
therefore, the EU should have been providing status report s. Yet it had failed to do so. The only 
difference that the United States could  see was that, now that the EU was a responding party, the 
EU was choosing to contradict the reading of Article  21.6 of the DSU  it had long promoted. The EU 's 
purported rationale was that it  need not provide a status report because it was pursuing a second 
compliance panel under Article  21.5 of the DSU. But as the United States had explained a t past DSB 
meetings, there was nothing in Article  21.6 of the DSU to support this position. In short, the conduct 
of every Member when acting as a responding party, including the EU, showed that Members 
underst ood that a responding party had no obligation under Article  21.6 of the DSU  to continue to 
supply status reports once that Member announce d that it had implemented the DSB 's 
recommendations. As the EU allegedly disagree d with this position, it should for future DSB meetings 
provide status reports. At the present  meeting, the EU  should welcome the opportunity that the 
United States  was affording it to update the DSB for the first time with any detail on its alleged 
implementation efforts.  WT/DSB/M/419  
 
- 11 - 
 
  3.3.  The representative of  the European  Union  said that a s the EU had indicated in previous DSB 
meetings, there was a difference between the "EC – Large Civil Aircraft" dispute (DS316)  and the 
"US — Offset Act (Byrd Amendment) " (DS217) dispute . In the Byrd  Amendment case, the dispute 
had been adjudicated and there were no further compliance proceedings pending. He said that u nder 
Article  21.6 of the DSU, the issue of implementation shall remain on the DSB's Agenda until the 
issue was resolved. In the Byrd Amendment case, the European Union could not and did not agree 
with the US assertion that the United States had implemented the DSB 's recommendations and  
ruling s. Therefore , the issue remain ed unresolved for the purposes of Article 21.6 of the DSU. As to 
the "EC – Large Civil Aircraft"  dispute (DS316) , once the Appellate Body report on compliance had 
been issued, the European Union had notified to the WTO a new set of measures in a compliance 
communication  contained in document WT/DS316/34  and tabled at the DSB meeting of 
28 May 2018. He said that w ith respec t to the measures included in that communication, the 
United  States had expressed the view that the EU had not yet fully complied with the 
recommendations of the DSB. In res ponse,  on 29  May 2018, the EU had requested consultations 
with the United States under Articles  4 and  21.5 of the DSU, and, after failure of the latter, had 
requested  the establishment of a compliance panel. The compliance panel had been established by 
the DSB on 27  August  2018. He said that  compliance proceedings in this dispute were therefore  still 
ongoing. Whether or not the matter was resolved was the very subject matter of this ongoing 
litigation. The European Union would be very concerned with a reading of Article  21.6 of the DSU 
which would require the implementing Member to provide status reports regarding  implementation 
while litigation on this issue was ongoing.  
3.4.  The DSB took note of the statements.  
4  ARTICLE  17.6 OF THE UNDERSTANDING ON RUL ES AND PROCEDURES GO VERNING THE 
SETTLEMENT OF DISPUT ES AND APPELLATE REV IEW OF PANEL FINDIN GS OF FACT, 
INCLUDING DOMESTIC L AW: STATEMENT BY CHI NA 
4.1.  The Chairperson  said that t his item was on the Agenda of the present  meeting at the request 
of China . She then  invite d the representative of China to speak.  
4.2.  The representative of China  said that first China wished to make some general comments  
regarding this matter. China recall ed that at the 2 7 August  2018 DSB meeting , the United  States 
had included  an item on the Agenda of that meeting  and had express  its views on Article  17.6 of the 
DSU and appellate review of panel findings of fact , including domestic law. In its statement, the 
United States had addressed two related issues: first, the scope of the Appellate Body's review of 
panels ' factual findings; and, second, the scope of its revi ew of the meaning of municipal law as part 
of panels ' factual findings. The United States claim ed that the Appellate Body had exceeded its 
mandate. A few Members , including China , had also shared their preliminary thoughts on this matter 
at that DSB meeting. He said that t he WTO dispute settlement system was an effective and 
successful international system for dispute settlement. Over the past 23  years, it had received 
566 cases and had helped Members to address hundreds of disputes. The Appellate Bod y, which was 
the subject of this debate, was an extremely important part of the WTO dispute settlement system. 
It was widely regarded as having made important contributions towards  clarifying WTO rules and 
providing security and predictability to the multi lateral trading system. However, due to continuous 
failures to launch the AB selection processes  and to reappoint one  Appellate Body member, the 
Appellate Body and the WTO dispute settlement system were in a historically serious crisis.  Under 
these circums tances, the issues that the United States had raised at the 27 August  2018 DSB 
meeting  were important. China believe d that further discussions could  be necessary for improving 
the operation of this Member -driven institution which would serve the interests of all Members. 
Through this statement, China wished to share some observations and comments. First, based on 
its understanding of relevant DSU provisions and practices, China wished to comment  on whether 
an objective assessment of facts made by a panel under Article  11 of the DSU was within the scope 
of appellate review. Second, China wished to comment  on the characte rization of a Member 's 
municipal law as a long -lasting vexation among adjudicators, especially when an international  
tribunal was called upon to assess the conformity of municipal law with relevant international 
obligations.  
4.3.  With regard to the issue of w hether a p anel's objective assessment of f acts was within the 
jurisdiction of the Appellate Body , China said that t he WTO dispute settlement system was founded 
on a two -tier system of review that consist ed of panels and the Appellate Body  and which had 
different tasks within the system. A panel 's tasks were to make findings regarding th e facts and the WT/DSB/M/419  
 
- 12 - 
 
  applicable law, and to apply the law to the facts in order to reach a decision. He said that i n carrying 
out its work, a panel should act under the legal constraints prescribed by the DSU. Article  11 of the 
DSU provide d that a panel "should " make an objective assessment of the matter before it, including 
facts. Article  17.6 of the DSU provide d that "[a]n appeal shall be limited to issues of law covered in 
the panel report and legal interpretations developed by the panel ". The Appellate Body had 
consistently recognized that it played a limited role in the WTO dispute settlement system, as 
compared with panels. The Appellate Body deferred to a panel 's role as the "trier of fact ", and did 
not make factual findings  of its own . He said that t he Appellate Body had, therefore, undertaken 
only limited review s of panel s' factual findings. At the 27 August  2018 DSB meeting , the 
United  States had argued that panels were not legally required to make an "objective assessment ", 
because Article  11 of the DSU used the word "should " rather than "shall". The United States had 
gone on to argue that, absent a legal requirement to make an objective assessment, the Appellate 
Body could not review a panel 's assessment of the facts. China was surprised by th e US argument. 
In China 's view, although "should " and "shall" may bear some difference s in meaning, it was 
inconceivable that the Members had not impose d, in the DSU, a legal requirement for panels to 
make an objective assessment. The Members ' use of the w ord "should " in Article  11 of the DSU was 
more than adequate to convey that panels were legally required to make an objective assessment. 
This wording support ed the position that the Appellate Body and Members had taken in past appeals. 
Members had conferred authority on panels to resolve disputes; however, the DSU require d that 
panels must do so only through an objective assessment. This limitation on panels ' authority was 
both appropriate and necessary to ensure that panels made  decisions that were independent and 
neutral. If the objective assessment was not the standard, China could not imagine what other type 
of assessment the United States would consider  appropriate. Article  17.6 of the DSU did not prevent 
the Appellate Body from considering the legal question of whether a panel had properly discharged 
its objective assessment obligation in accordance with Article  11 of the DSU.4 In an appeal  based on 
Article  11 of the DSU , the Appellate Body was mandated to review the manner in which  a panel had 
made factual findings. In its approach to the  review of panel decisions, the Appellate Body had 
applied this standard to ensure that panels remain ed within the legal limits of their authority under 
the DSU. The Appellate Body had rejected any possibili ty of engaging in fact -finding of its own, 
because that would have usurp ed the role of panels. Instead, the Appellate Body had restricted its 
role to ensuring that panels ' assessment of facts was objective. Thus, the Appellate Body had, by 
and large, struc k the right balance in reviewing a panel 's fact -finding. China said that t he Appellate 
Body had not engaged in fact -finding itself. In a limited number of disputes, the Appellate Body had 
reversed a panel 's fact -finding under Article  11 of the DSU . Neverth eless, it had done so only when 
a panel had exceeded its authority by  having  failed to make an objective assessment of the facts. 
The bar for reversal was set high: a panel would be reversed only if it failed to meet basic standards 
of objectivity that did not – to China at least – appear to be controversial. For example, the Appellate 
Body had said that a panel 's fact -finding must be supported by coherent and consistent reasoning 
that could be reconciled with evidence in the panel record; it had required t hat panels treat similar 
evidence in an even -handed manner; and it had called for panels to respect due process in making 
factual findings.5 China said that t hese requirements of objectivity were the hallmarks of independent 
and neutral adjudication. In do ing so, the Appellate Body applie d a legal standard of objectivity 
consistent with Article  11 of the DSU. The practices of the Appellate Body also demonstrate d that it 
was not an easy task for appellants to succeed in appeals  under Article  11 of the DSU . The Appellate 
Body had stressed that a claim that a panel had failed to conduct an objective assessment of the 
facts was "a very serious allegation ".6 It had cautioned that such claims must be "clearly articulated 
                                                
4 Tania Voon and Alan Yanovich, "The Facts Aside: The Limitation of WTO Appeals to Issues of Law" 
40(2)  Journal of World Trade 239(2006), p. 247 . 
5 See DSU Article  21.5 Appellate Body Report, "United  States – Subsidies on Upland Cotton ", 
WT/DS267/AB/RW, adopted 20  June 2008, paras. 291 -294, footnote 618; Appellate Body Report, "Colombia – 
Measures Relating to the Importation of Textiles, Apparel a nd Footwear ", WT/DS461/AB/R, adopted 
22 June 2016, para. 5.18; Appellate Body Report, "Argentina – Measures Affecting the Importation of Goods ", 
WT/DS438/AB/R, WT/DS444/AB/R, WT/DS445/AB/R, adopted 26  January  2015, footnote 543; Appellate Body 
Report, "Australia – Measures Affecting the Importation of Apples from New Zealand" , WT/DS367/AB/R, adopted 
17 December  2010, para. 270; DSU Article  21.5 Appellate Body Report, "United  States – Measures Concerning 
the Importation, Marketing and Sale of Tuna and Tuna P roducts ", WT/DS381/AB/RW, adopted 3  December  2015, 
para. 7.177.  
6 Appellate Body Report, "United States – Countervailing Measures on Certain Hot -Rolled Carbon Steel 
Flat Products from India" , WT/DS436/AB/R, adopted 19  December  2014, para. 4.79; Appellate Body Reports, 
"China – Measures Related to the Exportation of Rare Earths, Tungsten and Molybdenum ", WT/DS431/AB/R, 
WT/DS432/AB/R, WT/DS433/AB/R, adopted 29  August  2014, para. 5.227; Appellate Body Report, 
"European  Communities – Measures Affecting Importation of Certain Poultry Products ", WT/DS69/AB/R, adopted 
23 July 1998, para. 133.  WT/DSB/M/419  
 
- 13 - 
 
  and substantiated with specific arguments ", and must not be "ambiguous, vague, or subsidiary to 
another alleged violation ".7 It had also stated that, for a claim under Article  11 of the DSU to succeed, 
the Appellate Body "must be satisfied that the panel has exceeded the bounds of its discretion, as 
the trier of facts ".8  
4.4.  China said that m ost Members, if not all, agreed that the manner of a panel's fact -finding was 
within the scope of appellate review. As the United States had explicitly put it on one occasion , "[t]he 
meaning and operation of munic ipal law fell within the panel 's role as finder of fact, and was outside 
the scope of appellate review unless the finding was inconsistent with the obligation to make an 
objective assessment of the facts, in accordance with Article  11 of the DSU ".9 He said  that in practice, 
Members had taken  Article  11 of the DSU as a vehicle for appellate reviews frequently and 
consistently. As one commentator had observed, "appeals based on DSU Article  11 have become 
increasingly common. While reversals based on such an a ppeal were rare, parties continue to make 
such arguments ".10 For example, the United States itself had appealed panel reports based on 
Article  11 of the DSU in many disputes, including "US – Tuna II (Mexico) " (DS381) , "US – Carbon 
Steel (India) " (DS436), "US – COOL " (DS384) , "US – Clove Cigarettes " (DS406) , "US – Large Civil 
Aircraft (2nd complaint) " (DS353) , "US – Continued Zeroing " (DS 350), "US – Oil Country Tubular 
Goods Sunset Reviews" (DS268) , "US – Countervailing Duty Investigation on DRAMS " (DS 296), 
"US - Gambling " (DS285) , "US – Steel Safeguards " (DS252) , etc. He said that i n sum, a panel was 
obliged to carry out an objective assessment of facts according to Article  11 of the DSU, and that 
the Appellate Body could  review whether a panel had properly discharged its objective assessment 
obligation in accordance with Article  11 of the DSU . 
4.5.  With regard to the characte rizatio n of a Member's municipal law as a complex issue, China said 
that w hile municipal law was usually at the heart of international disputes, it was principally 
recognized as an issue of fact by various international tribunals. H e said h owever  that while stating 
the principle in the abstract was one thing, applying it to specific cases could be mor e complicated. 
In public international jurisprudence, a "classic al" view of municipal law had been well stated by the 
Permanent Court of International Justice (PCIJ), the predecessor of the International Court of Justice 
(ICJ) in the "Case concerning Certa in German Interests in Polish Upper Silesia ", that "municipal laws 
are merely facts which express the will and constitute the activities of States, in the same manner 
as do legal decisions or administrative measures ".11 According to this view, municipal law  would be 
proven by using the tool of factual inquiry. However, the practices of the PCIJ and ICJ suggest ed 
that such "classic " view might not always be accurate . On one occasion, the PCIJ had recognized 
that "the dispute relates to a question of municipal  law rather than to a pure matter of fact ".12 These 
practices indicate d a certain ambivalence in the treatment of municipal law by international tribunals, 
especially when the court had been called upon to determine the conformity of domestic legal 
measures with international law. He said that a number of  scholars had register ed their sc epticism 
over the aforementioned "classic " view. For example , Ian Brownlie had stated that "the general 
proposition that international tribunals take account of municipal  law only as facts is, at most, a 
debatable proposition the validity and wisdom of which are subject, and call for, further discussion 
                                                
7 Appellate Body Report, "United States – Countervailing Measures on Certain Hot -Rolled Carbon Steel 
Flat Products from India" , WT/DS436/AB/R, ado pted 19  December  2014, para. 4.196; Appellate Body Reports, 
"United States – Definitive Safeguard Measures on Imports of Certain Steel Products ", WT/DS248/AB/R, 
WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, 
WT/DS 259/AB/R, adopted 10  December  2003, para. 498; Appellate Body Report, "Australia – Measures Affecting 
the Importation of Apples from New Zealand" , WT/DS367/AB/R, adopted 17  December  2010, para.  406; 
Appellate Body Report, "United States – Definitive Anti -Dumping and Countervailing Duties on Certain Products 
from China" , WT/DS379/AB/R, adopted 25  March  2011, para. 337; Appellate Body Report, 
"European  Communities – Definitive Anti -Dumping Measures on Certain Iron or Steel Fasteners from China" , 
WT/DS397/AB/R , adopted 28  July 2011, para. 499.  
8 Appellate Body Report, "United States – Countervailing Measures on Certain Hot -Rolled Carbon Steel 
Flat Products from India" , WT/DS436/AB/R, adopted 19  Decembe r 2014, para. 4.79; Appellate Body Report, 
"United States – Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities" , 
WT/DS166/AB/R, adopted 19  January  2001, para. 151.  
9 Minutes of Meeting, Dispute Settlement Body, WT/DSB/M/119, 1  February  2002, para. 27 (statement 
of the United States).  
10 Simon Lester, "The Development of Standards of Appellate Review for Factual, Legal and Law 
Application Questions in WTO Dispute Settlement" 4(1) Trade Law and Development 125 (2012) 135.  
11 "Case Concerning Certain German Interests in Polish Uppe r Silesia " (Judgment) [1926], PCIJ Series  A 
No 7, p. 19.  
12 "Case concerning the Payment of Various Serbian Loans Issued in France"  (Judgment) [1929], PCIJ 
Series  A No 20, p. 19.  WT/DSB/M/419  
 
- 14 - 
 
  and review ".13 Judge Giorgio Gaja had suggested that treatin g municipal law as fact "may not seem 
inappropriate " as an approach when an international tribunal was considering the conduct of a State 
so as to ascertain whether it violated the State's international legal obligations. Judge  Gaja had 
nevertheless viewed  the description of domestic law as fact as "go[ing] too far ", in the sense that 
"it appears to call into question the legal nature of rules pertaining to a different system ".14 He said 
that in addition, many major jurisdictions took split views on the treatment of foreign law. While 
foreign law was often treated as a question of fact in the British judicial system, the "determination 
of foreign law 'must be treated as a ruling on a question of law, ' rather than as a finding of fact " in 
the US federal court system.15 In the WTO system, the proper assessment of municipal law was 
critical to the success of dispute settlement in a variety of ways. In an "as such " case regarding laws 
and regulations, the assessment of municipal law lied at the heart of the dispute. In cases regarding 
ongoing conduct and measures involving systematic application, the assessment of municipal law 
was central to both the existence and content of the measure. In certain "as applied " cases, the 
municipal law underp inning the measure at issue could also be important as part of the surrounding 
context of that measure. China said that by contrast with the ambivalence in public international law 
jurisprudence, the Appellate Body had stated that the meaning of municipal law was to be 
established as a matter of fact, using evidence. There was a long line of disputes to this effect, such 
as "India – Patents  (US)"  (DS50) , "US – Carbon Steel " (DS213), "US – Corrosion -Resistant Steel 
Sunset Review " (DS244) , "Thailand – Cigarettes  (Philippines) " (DS371) , "EU – Biodiesel  (Indonesia) " 
(DS480) . He said that a panel 's enquiry into municipal law did not end with establishing its meaning 
as a matter of fact. A crucial part of the enquiry consisted of characterizing municipal la w as a matter 
of WTO law. Every dispute involving municipal law was likely to raise such a legal characterization 
question which usually was very important to the heart of the dispute. For example, did a municipal 
law involve WTO -inconsistent conduct, such  as: the grant of a "prohibited subsidy "; the "less 
favourable treatment " of imported goods; and so on? Or, in a dispute involving a Member's ongoing 
conduct, did a municipal law entail conduct that could properly be characterized as a "measure " 
under WTO law? Countless such questions of characterization could arise. Applying the law required 
a substantial factual analysis, and the fact -identification and law -application determinations were 
closely linked.16 China said that the characterization of facts, including the characterization of 
municipal law, was a legal issue under the WTO law. In characterizing the facts, a panel was not 
engaged in fact -finding but was applying the law to the facts. Taking the examples just listed, a 
panel could be required to determine whether the relevant municipal law involved a "subsidy " or 
"less favourable treatment ", or whether it amounted to a "measure ". China understood that the 
United States agreed that such questions of legal characterization  were questions of law that could 
be appealed, and that these appeals did not arise under Article  11 of the DSU. These appeals arose 
under the legal provision that a panel was applying. Thus, the characterization of municipal law as 
a "subsidy " could arise under Article  1 of the SCM Agreement; its characterization as involving "less 
favourable treatment " could arise under Article  III of the GATT  1994; and its characterization as a 
"measure " could arise under Article  6.2 of the DSU. The Appellate Body did not need to defer to a 
panel 's authority as trier of fact when it reviewed such questions of legal characterization because 
the panel was not finding facts. Instead, the panel was applying law to the facts. China said that in 
sum, therefore, it seemed that the Appellate Body had attempted to draw a line between: a panel 's 
findings on the meaning of municipal law, which had to be appealed under Article  11 of the DSU and 
would be upheld unless the panel 's assessment was not objective; and its findings on the 
characterization of municipal law, as a matter of WTO law, which had to be appealed under the legal 
provision that the panel had applied. In China 's view, in light of the DSU, the Appellate Body had 
been correct in its effort to draw this line. Not surpris ingly, this line was not easy to draw in practice, 
since questions regarding the meaning and characterization of municipal law were very often difficult 
to untangle. There was no clear -cut rule with respect to drawing this line. All had to deal with the 
imperfections within this system.  
                                                
13 Ian Brownlie, Principles of Public International Law (7th ed, OUP 2008) 38.  
14 Giorgio Gaja, " Dualism: A Review" , in: Janne Nijman and André Nollkaemper (eds), New Perspectives 
on the Divide between National and International Law (OUP 2007) 58.  
15 Animal Science Products, Inc., et al. v. Hebei Welcome Pharmaceutical Co. Ltd., et al ., 138 S.Ct. 1865 
(2018), 1873; Federal Rules of Civil Procedure, Rule 44.1.  
16 Simon Lester, "The Development of Standards of Appellate Review for Factual, Legal and Law 
Application Questions in WTO Dispute Settlement" 4(1) Trade Law and Development 125 (2 012) 128.  WT/DSB/M/419  
 
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  4.6.  In conclusion, China said that it welcome d Member 's comments and ideas on this important 
issue. China believe d that Members ' contributions would help to ensure the proper functioning of the 
dispute settlement system. China would be ready to exchange views with other delegations  in the 
future.  
4.7.  The representative of  the United  States  said that the United States welcome d China 's 
placement of this item on the Agenda of the present  meeting. Article  17.6 of the DSU and appellate 
review of panel findings of fact, including domestic (or municipal) law, was an important systemic 
issue with significant implications for the operation of the dispute settlement system. At the 
27 August  2018 DSB meeting , the United States had provided in its statement a detailed analysis of 
two particular aspects of this issue: ( i) the Appellate Body 's lack of authority to review a panel 's 
findings of fact; and ( ii) the Appellate Body 's assertion that it could review panel findings concerning 
the meaning of a Member 's municipal law. He referred delegations to that statement for a thorough 
discussion of these issues. In its statement at the present meeting , the United States intended to  
highlig ht a few of the key issues and comments of other Members speaking u nder this item at the 
27 August  2018 DSB meeting and to provide some initial reactions to China 's statement at the 
present meeting.  
4.8.  With regard to the Appellate Body 's lack of authority to review a panel 's findings of fact, the 
United  States had highlighte d for Members the relevant provisions of the DSU and had discussed 
the Appellate Body 's failure to analy se the text of those provisions when it had first asserted it had 
the authority to review panel fact -finding. In particular, in DSU Article  11, Members had agreed that 
"a panel should make an objective assessment of the matter before it, including an objective 
assessment of the facts of the case and the applicability of and conformity with the relevant covered 
agreements ". In other words, WTO panels were to make factual and legal findings. By contrast, 
under DSU Article  17.6, Members had agreed that the Appellate Body would have a significantly 
more limited role than panels. Article  17.6 of the DSU expressly limited the scope of appellate 
review: "[a]n appeal shall be limited to issues of law covered in the panel report and legal 
interpretations developed by the panel ". The United States said that o n its face, this would not 
include panel fact -finding and, thus, appellate review of factual findings would  appear to be contrary 
to the Appellate Body 's limited authority under Article  17.6 of the DSU. Several Members who had 
spoken  under this item at the 27 August  2018 DSB meeting had agreed with this basic 
characterization. For example, the EU had suggested that Article  17.6 of the DSU reflect ed the idea 
that only panels were the triers of fact and that the scope of appellate review should be limited to 
legal issues. China had also agreed that factual issues generally fell outside the scope of appellate 
review. Japan and Australia had both commented that the text of the DSU clearly limited the scope 
of issues that could  be properly put before the Appellate Body to legal issues contained in a panel 
report. However, contrary to the clear text of DSU Article  17.6, the Appellate Body had asserted that 
it could review panel factual findings. The United States had highlighted for Members that the 
appellate report in which the Appellate Body had asserted that it could review panel fact -finding 
under Article  11 of the DSU contain ed no analysis of the text of that Article. In particular, the 
Appellate Body had provided no interpretation of the term "should make " nor had it explain ed how 
it could be understood as expressing a "duty" or legal obligation. In China 's statement at the present 
meeting , China appear ed to misunderstand this point. The United States had  not argued that a panel 
did not need to conduct an objective assessment of the matter before it. As the US had  explained 
at the 27 August  2018 DSB meetin g, the language in Article  11 of the DSU that the Appellate Body 
had relied upon was: "a panel should make an objective assessment of the matter before it, including 
an objective assessment of the facts of the case ". Key to this text was the word "should ". As the US 
had noted, Members were all familiar with the difference between "should " and "shall" and chose 
carefully whether to use "should " or "shall" in specific  parts of the agreements that they negotiate d. 
In fact, Members had been known to spend week s or even longer negotiating over exactly this point 
– whether to use "should " or "shall". Yet, in describing the text of Article  11 of the DSU , the Appellate 
Body had not engage d with this important textual issue. Instead, the Appellate Body had simply 
referred to this "should make " language as a "mandate " and a "requirement " for panels. To the 
contrary, the decision of Members to use the term "should " indicate d that Members had not intend ed 
to create a legal obligation subject to appellate review, a conclusion that was directly reinforced by 
the limitation on appeals to issues of law in Article  17.6 of the DSU . The United States had also 
pointed out that the Appellate Body 's approach under A rticle 11 of the DSU  had shifted over time, 
which appear ed to be a result of the fact that Members had never agreed that the Appellate Body 
would review a panel 's factual findings and that they had therefore never negotiated the basis or 
standard for such a review. Instead, the Appellate Body had struggled to formulate its own approach, 
without the benefit of guidance from Members. And, as previously discussed, the Appellate Body 's WT/DSB/M/419  
 
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  decision to undertake a review of panel fact -finding had a number of adverse  effects on the dispute 
settlement system, including an increased workload due to the number of appeals under Article  11 
of the DSU . This, in turn, had increased the complexity of appeals, the length of submissions, and 
the need for the Appellate Body to d evote additional time and resources to such appeals to become 
familiar with the basis for panels ' factual findings.  
4.9.  With regard to the Appellate Body's lack of the authority to review a panel's factual findings on 
the meaning of a Member's domestic law, the United States said that in the WTO system, as in any 
international law dispute settlement system, the meaning of municipal law was an issue of fact. The 
interpretation and application of the relevant covered agreement would be the issues of law for the  
WTO dispute set tlement system. At the 27  August  2018 DSB meeting, the U nited States had noted 
that the relevant provisions of the DSU – including Articles  6.2, 11, and 12.7 – reflect ed this 
straightforward division between issues of fact and law. The DSU made clear that the measure at 
issue was the core fact to be established by a complaining party, and the WTO consistency of that 
measure was the issue of law. The U nited States had also pointed out that the proposition that 
municipal law was an issue of fa ct was well-recognized in other international legal systems generally. 
In the WTO context in particular, the U nited States had noted that a number of WTO panels and  
Members had routinely analys ed, argued, or found that the meaning of a Member 's domestic la w 
was an issue of fact. The United States had cited a number of examples at the 27 August  2018 DSB 
meeting. In its statement at the present meeting , China appear ed to suggest that this was a disputed 
proposition. However, two of the examples the U nited States had provided at the 27 August  2018 
DSB meeting had been  instances in which China had argued the meaning of municipal law was a 
factual issue. In particular:  China, in the "EC – Fasteners  (China)" dispute (DS 397): "China submits 
that the issue of the 'meaning ' or 'scope ' of Article  9(5) of the Basic AD Regulation is an issue of fact  
… [t]herefore, it rejects the European Union 's argument that the scope of Article  9(5) of the Basic 
AD Regulation is a legal issue and hence subject to appellate review pur suant to Article  17.6 of the 
DSU"17; China, in the "US – Countervailing and Anti -Dumping Measures (China) " dispute (DS 449): 
"[t]he meaning of prior municipal law must be determined as a matter of fact, by  reference to the 
laws themselves and the manner in which those laws have been interpreted by domestic courts ".18 
These appear ed to be clear and unambiguous statements by China of its understanding that the 
meaning of municipal law was a factual issue. The United States asked China how it reconcile d these 
statements with its statement at the present meeting  and w hich of these statements accurately 
reflect ed China 's position . 
4.10.   The United States  noted with agreement Japan 's statement made at the 27 August  2018 DSB 
meeting that there was little room for debate that municipal law itself was a matter of fact in WTO 
law. The U nited States also agree d with Australia 's statement at that same DSB meeting that 
domestic law and the meaning of domestic law was a question of fact, to be determined by a panel 
on the basis of the evidence put before it by the parties to a dispute and, as such, was not subject 
to appellate review. The United States had also highlighted for Members that the basis for the 
Appellate Bo dy's treatment of the meaning of municipal law as a legal issue, to be decided by the 
Appellate Body de novo in an appeal, was flawed and without textual support in the DSU. He said 
that t he Appellate Body often attempt ed to justify its approach by citing its own prior reports, and 
the United States had illustrated that those reports themselves reflect ed a failure to engage with the 
text of the DSU. At the 27 August  2018 DSB meeting, the United States had also explained the 
flawed logic of the Appellate Body's approach. The Appellate Body reason ed that when a panel 
examine d municipal law to assess compliance with the WTO Agreements, the panel 's examination 
of the meaning of that municipal law became a legal question. This did not follow logically. It was 
one thing to determine what a municipal law mean t and how it operate d. It was an entirely different 
matter to determine whether – given a particular meaning and operation – the municipal law was 
consistent with WTO obligations. At the 27 August  2018 DSB me eting, Australia had noted that the 
Appellate Body in the "US – Upland Cotton " dispute (DS267)  had indicated in its DSU Article  21.5 
report that the distinction between issues of law and issues of fact "can be difficult to draw ", but 
Australia considered i t to be incumbent on the Appellate Body and Members engaged in appellate 
proceedings to maintain the distinction and respect the limits placed on the scope of appellate review 
by the DSU. The US  agree d. The Appellate Body 's erroneous approach to municipal law eliminate d 
                                                
17 Appellate Body Report, "European Communities – Definitive Anti -Dumping Measures on Certain Iron or 
Steel Fasteners from China" , WT/DS397/AB/R, adopted 28  July 2011, para. 74 (emphasis added).  
18 Panel Report, "United States – Countervailing and Anti-Dumping Measures on Certain Products from 
China" , WT/DS449/R and Add.1, as modified by Appellate Body Report WT/DS449/AB/R, adopted 22  July 2014, 
para. 7.142 (emphasis added). See also idem, paras. 7.160, 7.228.  WT/DSB/M/419  
 
- 17 - 
 
  the lines explicitly drawn by Members in the DSU between factual and legal issues, and was 
inconsistent with the appropriate functioning of the dispute settlement system. It depart ed from the 
basic division of responsibilities where panels d etermine d issues of fact and law, and the Appellate 
Body might be asked to review specific issues of law and legal interpretations. In Brazil 's statement 
at the 27 August  2018 DSB meeting, Brazil had asked what would be the relevance of the Appellate 
Body's role as set out in the DSU if the meaning of domestic law were to be considered a factual 
question and therefore not subject to appeal. The answer to this question was simple. The Appellate 
Body's role would remain what had been  agreed by Members in Arti cle 17.6 of the DSU, which 
provide d that "[a]n appeal shall be limited to issues of law covered in the panel report and legal 
interpretations developed by the panel ". In other words, the Appellate Body would continue to 
determine whether, based on the fact ual evidence (which includes the municipal law at issue), to 
uphold, modify, or reverse the legal findings and conclusions of the panel that had been appealed.19 
China in its statement had noted that the United States had filed DSU Article  11 appeals of pan el 
findings of fact. Once the Appellate Body had taken  upon itself the role of reviewing panel findings 
of fact, having relied incorrectly on Article  11 of the DSU , it had unfortunately become a feature of 
the system – unless the Appellate Body had reversed itself, or it had been  addressed by Members. 
Until that had happened, the United States  wonder ed which Member had explained to its domestic 
stakeholders that it would not avail itself of that opportunity even if other Members had been  making 
use o f that second bite at the apple. As a result, the fact that Members had raised such challenges 
did not answer the question of whether the DSU gave to the Appellate Body the authority to review 
panel findings of fact on appeal. He said that f or the reasons provid ed at the 27 August  2018 DSB 
meeting, and again at the present meeting , the U nited States did not see how one reconcile d the 
Appellate Body 's review of panel fact -finding with the express limitation in Article 17.6 of the DSU 
of appellate review to l egal issues. The United States  had not heard a compelling explanation in 
China 's statement at the present meeting . The United States  asked h ow would China explain this . 
4.11.   To conclude, the United States  said that as with the Appellate Body 's impermissible review of 
panel findings of fact more generally, the Appellate Body 's treatment of municipal law represent ed 
a departure from the agreed text of the DSU and a serious waste of the limited resources of the 
WTO dispute settlement system. Numerous Members had regretted the complexity of and delays to 
WTO dispute settlement system, and here was one reason, added to the system by the Appellate 
Body. The US  appreciate d Members ' engagement and comments on these important issues. And the 
US welcome d the statement a t the 27 August  2018 DSB  meeting that "any proposal to change 
established rules of the DSU " "should be tested and argued in light of the values they embody or 
the new values Members may want it to embody ". Here, Members were  discussing a departure by 
the A ppellate Body from the established rules of the DSU.  
4.12.   The representative of  Japan  thank ed China for its statement made at the present meeting . 
He said that Japan had offered its observations at the 27 August  2018 DSB meeting on this matter 
and would not repeat them again. He said that as approvingly noted by the Appellate Body, in public 
international law, "municipal laws are mere facts which express the will and constitute the activities 
of States ".20 As Japan had summarized in its statement at the 27 August  2018 DSB meeting, with 
respect to the issue of appellate review of a panel 's determination of the meaning of municipal law, 
the Appellate Body had stated as follows: "a panel 's examination of the municipal law of a Member 
for the purpose of determi ning whether that Member has complied with its obligations under the 
WTO Agreement is a legal characterization by a panel subject to appellate review under Article  17.6 
of the DSU "21; "[t]his [appellate] review would include text and context, as well as the 'structure 
                                                
19 Article  17.13 of the DSU.  
20 Appellate  Body Report, "India – Patent Protection for Pharmaceutical and Agricultural Chemical 
Products ", WT/DS50/AB/R, adopted 16  January  1998, para.65, quoting "Case Concerning Certain German 
Interests in Polish Upper Silesia " (Judgment) [1926], PCIJ Series  A No 7, p. 19.  
21 Appellate Body Report, "United States – Countervailing and Anti -Dumping Measures on Certain Products 
from China" , WT/DS449/AB/R, adopted 22  July 2014, para. 4.99, citing Appellate Body Report, "United States – 
Section  211 Omnibus Appropriations  Act of 1998 ", WT/DS176/AB/R, adopted 1  February  2002, para.105. See 
also Appellate Body Report, "China – Measures Affecting Imports of Automobile Parts ", WT/DS339/AB/R, 
WT/DS340/AB/R, WT/DS342/AB/R, adopted 12  January  2009, para.225; Appellate Body Report , "China – 
Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual 
Entertainment Products ", WT/DS363/AB/R, adopted 19  January  2010, para.177; Appellate Body Report, 
"European Communities – Definitive Anti -Dumpin g Measures on Certain Iron or Steel Fasteners from China" , 
WT/DS397/AB/R, adopted 28  July 2011, para.295; Appellate Body Report, "European Union – Anti-Dumping 
Measures on Biodiesel from Argentina" , WT/DS473/AB/R, adopted 26  October  2016, para.6.155.  WT/DSB/M/419  
 
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  and logic ', of a legal instrument "22; "there may be instances in which a panel 's assessment of 
municipal law will go beyond the text of an instrument on its face, in which c ase further examination 
may be required, and may involve factual elements. With respect to such elements, the Appellate 
Body will not lightly interfere with a panel 's finding on appeal "23; such "factual elements " may include 
"evidence of how a municipal law  has been applied, the opinions of experts, administrative practice, 
or pronouncements of domestic courts ", the examinations of which "are more likely to be factual in 
nature "24; "an examination of whether [relevant elements which need to be examined in asc ertaining 
the meaning of municipal law] are legal characterizations, or involve also factual elements, depends 
on the circumstances of each case "25; "[a]lthough factual aspects may be involved in the 
individuation of the text and of some associated circumst ances " such as "whether the text is official 
in more than one language, its date of enactments, publication and enforcement, the issuing 
authority, etc ."26, "an assessment of the meaning of a text of municipal law … is a legal 
characterization "27; "[s]imilarly, whether or when a domestic court ruling has been rendered and 
finalized, or what a writing by a recognized scholar contains, may involve factual aspect. However, 
the examination of the legal interpretation given by a domestic court or by a domest ic administrative 
agency as to the meaning of municipal law with respect to the measure being reviewed for 
consistency with the covered agreements may be a legal characterization "28. In short, Japan said 
that the Appellate Body appear ed to make a distinctio n between text, context and the "overall 
structure and logic " of a particular legal instrument at issue, including presumably "the legal 
interpretation given by a domestic court or by a domestic administering agency "29, on the one hand, 
and other elements o f a factual nature, on the other  hand, and opine d that "as a matter of legal 
characterization "30, the examination of municipal law based on the former "is not a 'factual matter ' 
                                                
22 Appellate Body Report, "United States – Countervailing and Anti -Dumping Measures on Certain Products 
from China" , WT/DS449/AB/R, adopted 22  July 2014, para. 4.99 and footnote  467, citing Appellate Body Report, 
"China – Measures Affecting Imports of Automobile  Parts", WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R, 
adopted 12  January  2009, para. 238. See also Appellate Body Report, "China – Measures Affecting Trading Rights 
and Distribution Services for Certain Publications and Audiovisual Entertainment Products ", WT/DS363/AB/R, 
adopted 19  January  2010, para.177; Appellate Body Report, "European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China" , WT/DS397/AB/R, adopted 28  July 2011, para  296; 
Appellate Body Report, "European Union – Anti-Dumping Measures on Biodiesel from Argentina" , 
WT/DS473/AB/R, adopted 26  October  2016, para.6.169.  
23 Appellate Body Report, "China – Measures Affecting Imports of Automobile Parts ", WT/DS339/AB/R, 
WT/DS340/AB/R, WT/DS342/AB/R, adopted  12 January  2009, para.  225. See also Appellate Body Report, 
"United  States – Countervailing and Anti -Dumping Measures on Certain Products from China" , WT/DS449/AB/R, 
adopted 22  July 2014, para. 4.99; Appellate Body Report, "European Communities – Definiti ve Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China" , WT/DS397/AB/R, adopted 28  July 2011, para.296; 
Appellate Body Report, "China – Measures Affecting Trading Rights and Distribution Services for Certain 
Publications and Audiovisual Ent ertainment Products ", WT/DS363/AB/R, adopted 19  January  2010, para.177.  
24 Appellate Body Report, "China – Measures Affecting Trading Rights and Distribution Services for Certain 
Publications and Audiovisual Entertainment Products", WT/DS363/AB/R, adopted 1 9 January  2010, para.177, 
citing Appellate Body Report, "United States – Sunset Review of Anti -Dumping Duties on Corrosion -Resistant 
Carbon Steel Flat Products from Japan" , WT/DS244/AB/R, adopted 9  January  2004, para.168. See also Appellate 
Body Report, "United States – Countervailing and Anti -Dumping Measures on Certain Products from China" , 
WT/DS449/AB/R, adopted 22  July 2014, paras.  4.100 –4.101, citing Appellate Body Report, "United States – 
Countervailing Duties on Certain Corrosion -Resistant Carbon Ste el Flat Products from Germany" , 
WT/DS213/AB/R, adopted 19  December  2002, para.  157; Appellate Body Report, "European Communities – 
Definitive Anti -Dumping Measures on Certain Iron or Steel Fasteners from China" , WT/DS397/AB/R, adopted 
28 July 2011, para.296.  
25 Appellate Body Report, "United States – Countervailing and Anti -Dumping Measures on Certain Products 
from China" , WT/DS449/AB/R, adopted 22  July 2014, para. 4.101. See also "United States – Countervailing and 
Anti-Dumping Measures on Certain Pr oducts from China" , WT/DS449/AB/R, adopted 22  July 2014, para.  4.100 
and footnote 469 quoting Appellate Body Report, "United States – Countervailing Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany" , WT/DS213/AB/R, adopted 19  December  2002, 
para. 157. 
26 Appellate Body Report, "United States – Countervailing and Anti -Dumping Measures on Certain Products 
from China" , WT/DS449/AB/R, adopted 22  July 2014, footnote 471.  
27 Appellate Body Report, "United States – Countervailing and Ant i-Dumping Measures on Certain Products 
from China" , WT/DS449/AB/R, adopted 22  July 2014, para. 4.101.  
28 Appellate Body Report, "United States – Countervailing and Anti -Dumping Measures on Certain Products 
from China" , WT/DS449/AB/R, adopted 22  July 2014, p ara. 4.101.  
29 Appellate Body Report, "United States – Countervailing and Anti -Dumping Measures on Certain Products 
from China" , WT/DS449/AB/R, adopted 22  July 2014, para. 4.101.  
30 Appellate Body Report, "European Communities – Definitive Anti -Dumping Measures on Certain Iron or 
Steel Fasteners from China" , WT/DS397/AB/R, adopted 28  July 2011, para.  297. WT/DSB/M/419  
 
- 19 - 
 
  and is not excluded from appellate review "31 whereas the examination of the latter would likely 
involve a factual inquiry.32 He said that t he question Members  had to  ask themselves was whether 
this was the right approach given the adjudicative functions as defined and circumscribed in Article 
17.6 of the DSU , and if not, how Members should respond.  
4.13.   The representative of  Brazil  said that w ith the inclusion of this item on the Agenda of the 
present meeting  by China, Members had a second opportunity to exchange views regarding the 
correct interpretation o f Article 17.6 of the DSU  and about the proper scope for appeals, the 
delimitation of factual and legal issues and the status of domestic law before panels and the A ppellate 
Body. Brazil  said that t his discussion was welcome, as were other discussions on matters that 
affect ed the functioning of  the WTO  dispute settlement system. The framing of ideas and opinions 
on the basis of solid rational discourse was fundamental for any fruitful collaboration among 
interested Members . It bore reminding, however, that  this exercise could not serve as an argument 
to block, pre -emptively, the adequate functioning of the system. No Member was entitled to make 
the system hostage of its own concerns, justified or not: the WTO framework offered other 
alternatives for the dis cussion and solving of concrete or conceptual concerns . Brazil made the 
following comments to some of the topics that the United States had raised in its statement at the 
27 August  2018 DSB meeting . The first, more general comment was that, in principle  and in theory, 
probably no Member disagree d with the proposition that the Appellate Body was called to review 
issues of law covered in panel report s and legal interpretations developed by panel s (Article  17.6 of 
the DSU) and, as the United States had said in its statement at the  27 August  2018 DSB meeting , 
quoting the Appellate Body , "findings of fact, as distinguished from legal interpretations or legal 
conclusions, by a panel are, in principle, not subject to review by the Appellate body ".33 Brazil agreed 
with that statement and believed that  most Members also agree d with it . This principle, however, 
was simply a guiding light that would illuminate the Appellate Body in respect of each concrete panel 
report that was brought before it for review. In pra ctice,  the intricacies of each dispute, and the 
delimitation that had been  made or not made by a panel between  questions of fact and law entail ed 
challenges  specific  to the task faced by the Appellate Body. In practice, and not in principle, the 
situation could in some cases be more nuanced than one might have assumed . If one were to draw 
an analogy , one could compare  the different ways Members saw the same legal phenomenon 
regard ing scenarios of fact and law  with the debate about the nature of light. Light  was sometimes 
describ ed as a wave, and in other instances  as a stream of particles (or quanta). In the present 
situation, it seem ed that the United States was using equipment that allowed it to observe certain 
phenomena only as factual situation s, whereas  most Members were observing the situation as it 
probably was in reality: a mix of fact and law, not always easy to disentangle. Given the very detailed 
examples given by the U nited States in its statement made at the 27 August  2018 DSB meeting , 
Brazil intended to  address more specific aspects of the debate. The United States submit ted in its 
statement that the Appellate Body had skipped over the key threshold question, which it frame d as 
whether,  in light of the limitation of appeals in Article  17.6 of the DSU to "issues of law and legal 
interpretations ", the Appellate Body was authorized to "review " a panel 's "ascertainment of facts ". 
Contrary to the US argument, the Appellate Body had not "skipped" over this question. The Appellate 
Body ha d explained that whether a panel ha d made an objective assessment of the facts was an 
issue of law and, as such, fell within the scope of appellate review under Article  17.6 of the DSU.34 
He said that there was thus no contradiction between the Appellate Body's review of the objectivity 
of panels ' factual findings and the text of Article  17.6 of the DSU.  
4.14.   With regard to the issue of s hall/should and Article  11 of the DSU, Brazil said that when  the 
United  States criticiz ed the Appellate Body 's position that Article 11 of the DSU had set out a 
"standard of review ", the US focuse d on the use of the term "should " in that provision and 
                                                
31 Appellate Body Report, "European Communities – Definitive Anti -Dumping Measures on Certain Iron or 
Steel Fasteners from China" , WT/DS397/AB/R, adopted 28  July 2011, para.  297. 
32 See i.e. , Appellate Body Report, "United States – Countervailing and Anti -Dumping Measures on Certain 
Products from China" , WT/DS449/AB/R, adopted 22  July 2014, paras. 4.99 – 4.101 ; Appellate Body Report, 
"China – Measures Affecting Imports of Automobile Parts ", WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R, 
adopted 12  January  2009, para.  225; Appellate Body Report, "China – Measures Affecting Trading Rights and 
Distribution Services for Certain Publications and Audiovisual Entertainment Products ", WT/DS363/AB/R, adopted 
19 January  2010, para.177; Appellate Body Report, "European Communities – Definitive Anti -Dumping Measures 
on Certain Iron or Steel Fasteners from China" , WT/DS397/AB/ R, adopted 28  July 2011, para.  296. 
33 Appellate Body Report, "European Communities — Measures Concerning Meat and Meat Products 
(Hormones) ", WT/DS26/AB/R, WT/DS48/AB/R, adopted 13  February  1998, para. 132.  
34 See, for example, Appellate Body Report, "United  States — Definitive Safeguard Measures on Imports 
of Wheat Gluten from the European Communities" , WT/DS166/AB/R, adopted 19  January  2001, para. 151.  WT/DSB/M/419  
 
- 20 - 
 
  distinguishe d it from the term "shall". According to the statement of the United States  made at the 
27 August  2018 DSB meeting , "the decision of Members to use the term 'should ' indicates that 
Members did not intend to create a legal obligation subject to review, a conclusion that is directly 
reinforced by the limitation on appeals to issues of law in Article  17.6 [of the DSU] ". Taken to its 
logical conclusion, the U S argument that Article  11 of the DSU  had not been intended to create a 
legal obligation mean t that – because of the use of the term "should " – it was not mandatory for 
panels "to make an objective assessment of the matter before it " or "an objective assessment of the 
facts of the case ". Brazil  said h owever  that the notion that making an objective assessment had not 
been intended to be mandatory, but rather optional, was absurd. Brazil  asked whether  the 
United  States was saying that panels did not have the obligation to perform an objective assessment 
in all cases or that they could  make a subjective assessment or an assessment not based on the 
proper analysis of the evidence before it . In the context  of Article  11 of the DSU, it was clear that 
the "should " had establish ed a legal obligation or duty. He said that according to Oxford English 
Dictionary Online  the ordinary meaning of "should " include d "[u]sed to indicate obligation, duty, or 
correctness ". The distinction that the United States sought  to draw based on the use of the term 
"should " in Article  11 of the DSU thus had no merit and the argument itself seem ed to bear no 
connection with the underlying issue.  
4.15.   With regard to the "EC – Hormones " disputes (DS26, DS48) and Article  11 of the DSU , Brazil 
said that t he United States had traced the Appellate Body 's original error back to the " EC – 
Hormones " dispute s (DS26 , DS48 ) and had spent considerable time criticizing the reasoning in that 
Appellate  Body report. H e said h owever  that when one review ed the statements made at the DSB 
meeting of 13 February  1998, when the Appellate Body  report in the " EC – Hormones " dispute s 
(DS26 , DS48 ) had been  adopted, one could not  find any hint of criticism by the United  States 
regarding the Appellate Body 's approach to the review of factual findings or to a standard of review 
being set out in Article  11 of the DSU.35 He said that t he US representative had stated without 
hesitation that "his country supported the adoption of the Appellate Body  and the Panel Reports ".36 
This did not suggest  a long -standing or reiterated position of the United States, but rather a more 
recent attempt to constrain the Appellate Body  which was motivated  by other considerations . 
4.16.   With regard to the issue of threshold under Article  11 of the DSU, Brazil said that t he 
United  States was selective in choosing the statements by the Appellate Body regard ing Article  11 
of the DSU. He said that t he Appellate Body had in many respects made it more difficult for an 
appellant to succeed in a DSU Article  11 claim. For example, in the "Chile – Price Band System " 
dispute (DS207), the Appellate Body had explained that: "a claim that a panel failed to comply with 
its duties under Article  11 of the DSU must stand by itself and should not be made merely as a 
subsidiary argument or claim in support of a claim that a panel failed to apply correctly a provision 
of the covered agreements ".37 Another example could  be found in the "EC – Fasteners  (China)" 
dispute (DS397) , where the Appellate Body had incorporated a requirement of materiality to a claim 
challenging a panel 's assessment of the facts under Article  11 of the DSU  and had found  that: "when 
alleging that a panel ignored a pie ce of evidence, the mere fact that a panel did not explicitly refer 
to that evidence in its reasoning is insufficient to support a claim of violation under Article  11. Rather, 
a participant must explain why such evidence is so material to its case that the  panel's failure 
explicitly to address and rely upon the evidence has a bearing on the objectivity of the panel's factual 
assessment ".38 
4.17.   With regard to the Appellate Body's activism on Article  11 of the DSU, Brazil said that a  review 
of Appellate Body reports circulated during  the last three years (2016 -2018) showed that the 
Appellate Body had been extremely restrained in accepting challenges under Article  11 of the DSU. 
The Appellate Body had found a violation of Article  11 of the DSU in only two of the  13 reports that 
had been circulated since 1  January  2016. He said that  with such an extremely low rate of success, 
the Appellate Body could hardly be accused of encouraging appellants to raise claims under Article  11 
of the DSU.  
                                                
35 Minutes of Meeting, Dispute Settlement Body, WT/DSB/M/42, 13  February  1998.  
36 Minutes of Meeting, Dispute Settlement Body, WT/DSB/M/42, 13  February  1998, p. 8.  
37 DSU Article  21.5 Appellate Body Report, "Chile – Price Band System and Safeguard Measures Relating 
to Certain Agricultural Products ", WT/DS207/AB/RW, adopted 22  May 2007, para. 238.  
38 Appellate Body Report, "European  Communities – Definitive Anti -Dumping Measures on Certain Iron or 
Steel Fasteners from China" , WT/DS397/AB/R, adopted 28  July 2011, para. 442.  WT/DSB/M/419  
 
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  4.18.   With regard to the Appellate Body's review of factual findings, Brazil said that a s an appellant, 
the United States had asked the Appellate Body to interfere with factual findings made by panels. 
For example, the US Notice of Appeal in the DSU Article  21.5 proceedings regarding  the 
"US - Tuna II (Mexico)" dispute (DS381) included the following claim: "[t]he United States also 
requests the Appellate Body to find that the Panel failed to make an objective assessment of the 
matter before it, as called for by Article  11 of the DSU, with regard to the so -called 'determination 
provisions '. The Panel had drawn its conclusions with regard to these provisions based on factual 
findings that were without a sufficient evidentiary basis, without assessing the totalit y of the 
evidence, and without adequate explanation ".39 In this claim, the United States was not only 
recognizing the authority of the Appellate Body to review a panel's assessment of the facts, but was 
going further by actually requesting the Appellate Bod y to exercise that authority.  
4.19.   With regard to the meaning of municipal law, Brazil said that a t the 27  August  2018 DSB 
meeting , the United States had protested strongly against the Appellate Body's review of the 
meaning of municipal law  and had  argued that the meaning of municipal law was an issue of fact 
that fell outside of appellate review. The U S position seem ed to be that a party that disagree d with 
a panel 's findings on the meaning of a municipal law was left without recourse and simply had to 
accept those findings without having the possibility of having them reviewed on appeal.  He said that 
unsurprisingly , these constraints did not appear to apply when it was the United States that 
disagree d with the findings of a panel on the meaning of a partic ular municipal law. Brazil referred 
for example , to the U S appeal of the panel 's finding regarding the Second Siting Provision in the 
recent "US – Tax Incentives " dispute (DS 487). The Second Siting Provision was a legislative 
provision of the State of Washington. It seem ed uncontested that the Second Siting Provision 
constitute d municipal law. Given that the Second Siting Provision was municipal law, the United 
States should have accepted the panel 's findings regarding that  provision 's meaning. He said that 
an appeal of the panel 's findings, according to the United States, would not have been possible. Yet, 
that was not the position that the United States had taken  in that case, either with arguments under 
Article  3.1(b) of the SCM Agreement or Article  11 of the DSU. Brazil  said that i n its Notice of Appeal, 
the United States had raised the following claim: "[t]he Panel failed to make 'an objective 
assessment of the matter before it, including an objective assessment of the facts  of the case, ' as 
required by Article  11 of the DSU in finding that the Second Siting Provision concerns the use of 
certain goods, and specifically the origin of those goods that enter into the production process for 
the 777X, as a condition for the contin ued availability of the B&O aerospace tax rate for the  777X 
program. Were the Appellate Body to consider the meaning and operation of the Second Siting 
Provision as an issue of law for purposes of the DSU, then the United States considers the Panel 
erred a s a matter of law in its understanding or interpretation of the Second Siting Provision ".40 In 
this claim, the United States had not only asked the Appellate Body to review the Panel's assessment 
of the facts, but had specifically asked the Appellate Body to review the Panel's findings on the 
meaning of its municipal law. It was difficult not to see a contradiction between the position taken 
by the United States in the "US – Tax Incentives " dispute (DS487)  and the position it had taken at 
the present meeting  and at the 27  August  2018 DSB meeting . 
4.20.   With regard to the criticism of the Appellate Body's approach to municipal law, Brazil said that 
the United States claim ed that its criticisms of the Appellate Body 's approach to municipal law were 
widely shared among the Membership . This assertion did not stand up to scrutiny. The United  States 
referred to the "EU – Biodiesel " dispute (DS473) as emblematic of the Appellate Body 's erroneous 
approach and recall ed the criticisms it had raised when the report had been  adopted by the DSB in 
October  2016. Tellingly, no other Member had endorsed the US criticisms or had raised other 
concerns about the Appellate Body's approach at that DSB meeting.41 Nor had any other Member 
endorse d the US criticism of the Appellate Body Report s in the " US — Section 211 Appropriations 
Act" dispute (DS176)42, the "China – Auto Parts " dispute s (DS339 , DS340, DS342 )43 or the 
"US - Countervailing and Anti -Dumping Measures (China) " dispute (DS449)44 when the 
United  States had formulated such criticisms  at the corresponding DSB meeting s. Brazil said that 
                                                
39 Notification of an Appeal by the United  States, "United  States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products ", Recourse to Article  21.5 of the DSU by Mexico, WT/DS381/24, 
5 June 2015, para. 4.  
40 Notification of an Appeal by the United  States, "United States – Conditional Tax Incenti ves for Large 
Civil Aircraft ", WT/DS487/6, 16  December  2016, para. F (footnotes omitted).  
41 Minutes of Meeting, Dispute Settlement Body, WT/DSB/M/387, 26  October  2016.  
42 Minutes of Meeting, Dispute Settlement Body, WT/DSB/M/119, 1  February  2002.  
43 Minutes of Meeting, Dispute Settlement Body, WT/DSB/M/262, 12  January  2009.  
44 Minutes of Meeting, Dispute Settlement Body, WT/DSB/M/348, 22  July 2014.  WT/DSB/M/419  
 
- 22 - 
 
  while the United States had also criticiz ed the Appellate Body Report in the "China – Publications 
and Audiovisual Products " dispute (DS 363), the US  had not raise d any concerns regarding this aspect 
of the report at the DSB when the report had been  adopted.45 Nor had the US raised any concerns 
about the Appellate Body 's treatment of municipal law in  the "EC – Fasteners (China) " dispute 
(DS397) . On the contrary, when the  DSB adopted the Appellate Body Report , the United States had 
praised the Appellate Body for its strict application of the standard of review: "[t]he United  States 
said that it would also like to draw Members' attention to the Appellate Body's articulation  of the 
standard of review for a claim of error under Article  11 of the DSU. The Appellate Body usefully 
reminded Members that '[a]n attempt to make every error of a panel a violation of Article  11 of the 
DSU is an approach that is inconsistent with the sc ope' of Article  11 of the DSU. Further, the 
Appellate Body highlights that '[i]t is also unacceptable for a participant effectively to recast its 
arguments before the panel under the guise of an Article  11 claim '. The United States agreed with 
these statem ents and believed that they were a useful reminder to Members regarding the proper 
scope of Article  11, as well as reflecting the limited scope of appellate review under Article  17.6 of 
the DSU ".46 
4.21.   In conclusion, Brazil said that t he discussions at the pres ent meeting and at the previous  DSB 
meeting  held on  27 August  2018 seem ed to give the impression that there was considerable 
disagreement among Members about the scope of appellate review. Brazil did not see it this way. 
The disagreement was actually  very narrow and there was broad convergence on the understanding 
that Article 17.6 of the DSU provide d the guiding principle for the appeal task. Some dissonance 
arose only regarding very few cases and was a consequence of the difficulty to precisely delim itate 
the analys es of factual and legal issues. Brazil recalled  that the Appellate Body had to operate on 
the basis of panel report s and parties ' arguments, in which all aspects tend ed to be interwoven. 
Brazil believe d that a dispute settlement system wher e the appeal instance could not assess the 
compatibility between domestic legislation and WTO agreements was not the one that Members  had 
established in 1995.  
4.22.   The representative of  Canada  said that Canada wished to take the opportunity to comment 
on the is sue raised by China at the present  meeting and by the United States at the 27 August  2018 
DSB meeting regarding the appellate review of factual findings by panels. First, he emphasize d that 
Canada was  open to further discussion of this issue and encourage d Members to actively engage to 
resolve the concerns that had been raised. Canada  consider ed that attempts to address those 
concerns were worth exploring. Canada n otably  believe d that efforts to reduc e the number of issues 
before the Appellate Body in an ap propriate way would be a useful means to streamline proceedings 
and reduce the workload of the Appellate Body. Canada  urged the Appellate Body to closely scrutinize 
pleadings and distinguish factual from legal issues. Pursuant to Article  11 of the DSU , it was 
appropriate for the Appellate Body to establish a standard of review for factual findings made by 
panels. A rigorous application of that standard would discourage Members from advancing extensive 
and unnecessary arguments that ignore d the DSU Article  11 standard and simply sought  to have 
factual findings overturned on appeal, effectively on the basis of a de novo review. He said that t he 
comprehensive, terse, and consistent disposition of such arguments would have a salutary effect on 
the Appellate Body's workload and be consistent with the mandate set out in Article  17.6 of the DSU. 
It would also encourage Members to focus their arguments on areas where there was a reasonable 
argument that the standard of review had been met. Canada  noted however  that a s presented by 
Brazil, the theory of the standard of review might require a more nuanced approach. Canada  asked 
those Members who consider that the Appellate Body should entirely refrain from any review of 
factual findings to contemplate a scenario where a n egregious panel finding of fact result ed in an 
outcome that had serious and negative consequences for a key industry in that Member 's 
jurisdiction. In such a scenario, Canada  asked whether those Members would be prepared to refrain 
from seeking to overtu rn that factual finding on appeal . And if so, whether  that would be a positive 
outcome . He also asked whether  access to resolution would instead be possible on appeal through 
the application by the Appellate Body of the standard of review set out in DSU Article 11 to a panel 's 
factual findings . He said that w hile Canada was  certainly willing to discuss this issue and to work 
towards a solution of the concerns that have been raised, Canada's  view was that the latter of these 
two options was preferable.  
4.23.   The representative of  Mexico  thank ed the United States for having shared its  views with the 
Membership on Article  17.6 of the DSU at the 27 August  2018 DSB meeting , and also thanked  China 
                                                
45 Minutes of Meeting, Dispute Settlement Body, WT/DSB/M/278, 19  January  2010.  
46 Minutes of Meeting, Dispute Settlement Body, WT/DSB/M/301, 28  July 2011, para. 10.  WT/DSB/M/419  
 
- 23 - 
 
  for placing t his item on the Agenda  of the present meeting . At the outse t, Mexico express ed its 
concern s regarding  the process. Members  could not continue to raise concerns without engaging in  
finding  solutions. Members were  in the middle of the worst crisis of th e WTO dispute settlement 
mechanism. Without proposals , it would be  difficult to find solutions. With regard  to the substantive 
aspects of the US statements , Mexico was surprised that this was the first time, after more than 
500 disputes and more than 20  years, that the United States took the view that there had been  "an 
invention of an authority to review fact -finding ". If the United States had now taken the view that 
Article  11 of the DSU gave no authority to the Appellate Body to review findings of fact, Mexico 
strongly disagree d. The United States focused  on the word "should " to construct its interpretation, 
without regard to the context of this provision. Mexico  could not find a dispute in which the United 
States had expresse d this view which could have given the opportunity for the Appellate Body to 
disagr ee or agree with  such a view . As the Appellate Body had said in the "Canada – Aircraft " dispute 
(DS70) , the word "should ", in certain contexts, could be "used in a normative, rather a merely 
exhortative sense ".47 Mexico asked , if "should " in Article  11 of the DSU  was not mandatory , what 
would be the source of a panel 's authority and what would be  the standard to assess the facts and 
the applicability of and conformity with the covered agreements . She asked w hat would be the basis 
for a panel to look at the evidence or to apply a covered agreement . Regarding  the review of 
domestic law, Mexico disagree d with the United States to the extent that it suggest ed that this was 
a "black and white " issue. Understanding domestic laws of the Membership could be a very complex 
exercise which might involve looking at the legislative history and judicial precedents, which in some 
cases might be contradictory. This exercise clearly involve d fact-finding that certainly should be only 
within the authority of p anels. However, it should be distinguished from a scenario where the law, 
on its face, could be WTO -inconsistent. Mexico  said that i mpeding , or using this issue as an excuse 
to prevent the Appellate Body from engaging in an exercise of looking at domestic law and 
determining whether, on its face, it was inconsistent with a covered agreement would be "a serious 
waste of limited resources of the WTO dispute settlement system ". 
4.24.   The representative of  the European  Union  said that o ne possible legal issue that could arise 
on appeal was whether a panel had complied with Article  11 of the DSU. This would include, among 
others, the question of whether the panel had made an objective assessment of the matter before 
it. He said that  such claims on appeal were not rare and had been raised by many Members in a 
number of disputes. While the panels were the triers of facts and enjoy ed the necessary discretion 
in that regard, the question of whether a panel had exceeded its authority as the trier of the facts 
was a legal question that fell within the scope of appellate review, if a claim under Article  11 of the 
DSU was properly raised on appeal. It was only natural and desirable in a two -stage adjudicative 
process that such issues were subject to appellate review and  this was consistent with the provisions 
of the DSU. He repeat ed that the European Union was open to discussions on possible improvements 
in the operation of the dispute settlement mechanism.  
4.25.   The representative of  Chile thank ed the United States for its st atements and for having shared 
its comments and concerns regarding  the functioning of the Appellate Body. Chile reiterated its 
willingness  to work on solutions. Chile agreed with some of the well -substantiated arguments of the 
United  States  and looked forward to sharing possible solutions amongst Members.  
4.26.   The representative of  the United  States  expressed appreciat ion for  the engagement by 
Members under this Agenda item at the present meeting . Several issues appeared to  warrant further 
discussi on by Members, and the United States  looked forward to such discussions . The United  States  
said h owever that there was a particular assertion that was important to correct at the present 
meeting . One Member had suggested that US concerns with appellate rev iew of panel fact -finding 
were new and had been only recently raised by the United States. In its statement  made at the 
27 August  2018 DSB meeting , the United States  had quoted from a statement it had made in  2002 
that express ed concerns on this issue . That Member 's assertion therefore did  not reflect reality.  
4.27.   The representative of  China  welcome d the statements by the United States and other 
Members ' engagement under this Agenda item. China wished to make further comments in order to 
avoid any possible mi sunderstanding of its statement made at the present meeting . First, China 
echoed some Members ' observations that, though open to discuss the concerns raised by the U nited 
States on this particular issue, China  could not agree to combin ing this issue with the AB selection 
processes . China  strongly oppose d the fact that the United States had taken the selection of 
                                                
47 Appellate Body Report, "Canada — Measures Affecting the Export of Civilian Aircraft ", WT/DS70/AB/R, 
adopted 20  August  1999, para. 187.  WT/DSB/M/419  
 
- 24 - 
 
  Appellate Body members hostage in in its attempt at solving other unrelated concerns it had. Second, 
China believe d that the Artic le 17.6 and Article  11 of the DSU gave the Appellate Body the mandate 
to review the factual findings of panels subject to certain qualifications. A panel 's assessment of the 
meaning of municipal law always had to  remain within the bounds of the objectivity  standard under 
Article  11 of the DSU and was, therefore, subject to appeal on these limited grounds. The 
characterization of municipal law under WTO law was a question of law that could  be appealed under 
the legal provision that the panel was applying in the course of its legal characterization. Third, he 
said that it seem ed that the U nited States had based its arguments primarily on the difference 
between the words "should " and "shall". However, China did  not think that the US  argument was 
solid and persuasive. The US idea was neither supported by other Members, nor was it consistent 
with Members ' practices. In that regard, China referred to a number of examples.  In the "Canada – 
Periodicals " dispute (DS31),  Canada in its appellant submission had argued that "the Panel 
disregarded the evidence before it, and based its finding on a speculative hypothesis, thus failing to 
make 'objective assessment of the facts of the case ' as required by Article 11 of the DSU ".48 In the 
"US — Anti-Dumping Measures  on Oil Country Tubular Goods " dispute (DS 282), the US had argued 
in the appeal that "the Panel failed to apply the correct standard in its assessment of the consistency 
of the SPB, as such, with [DSU] Article  11.3, and, in doing so, the Panel also failed to 'make an 
objective assessment of the matter before it, including an objective assessment of the facts of the 
case', as required by Article 11 of the DSU ".49 In the "EC and Certain Member States – Large Civil 
Aircraft " dispute (DS316),  the EU in its appel lant submission "makes a claim under Articles  5(c) 
and 6.3(c) of the SCM Agreement, alleging an error of application, as well as a claim under Article  11 
of the DSU, alleging a failure by the Panel to make an objective assessment of the facts ".50 China 
concluded its statement by  thank ing Members who had  intervened. China was willing to stay 
engag ed in further constructive discussions with other Members on this important issue. As China 
had stated previously, appellate review was systemic ally importan t to the well -functioning of the 
WTO dispute settlement  system . While it was important to ensure that appellate review would not 
add to or diminish the rights of Members under the covered agreements, it was equally important 
to make sure that the ambit of appe llate review would not be added to or diminished due to 
inappropriate interpretations of the relevant provisions under the covered agreements.  
4.28.   The DSB took note of the statements.  
5  CANADA – MEASURES GO VERNING THE SALE OF WINE  
A.  Request for the establishment of a panel by Australia (WT/DS537/8)  
5.1.  The Chairperson  recall ed that the DSB had considered this matter at its meeting on 27  August 
this year and had agreed to revert to it. to the Chairperson drew  attention to the communication  
from Australia contained in document WT/DS537/8 . She then  invite d the representative of Australia 
to speak.  
5.2.  The representative of Australia  said that as  Australia had  stated at the 27  August  2018 DSB 
meeting , Australia had requested consultations with Can ada on 12  January this year regarding  a 
range of measures which discriminate d against Australian wine imports in a manner that Australia  
consider ed to be inconsistent with Canada's obligations under the GATT  1994. She said that 
unfortunately , the consultations, held on 1  March  2018, and subsequent informal technical 
discussions with Canada, had failed to resolve this matter. While Australia remain ed ready to engage 
in bilateral discussions with Canada, Australia was  disappointed that it had  still not seen any concrete 
steps in respon se to its concerns. As a result, Australia requested at the present meeting , for a 
second time, that the DSB establish a panel to examine this matter with standard terms of reference. 
She said that Australia greatly  value d its strong bilateral relationship with Canada and that it 
remain ed open to further discussions with Canada, both at federal and provincial level s, in an effort 
to resolve the issues that Australia had  raised. Australia said that a  panel had already  been 
established by the DSB at the request of the United States in the "Canada – Wine (US) " 
dispute  (DS531 ) on 20  July 2018, which was related to the same matter. These disputes overlap ped 
                                                
48 Appellate Body Report, "Canada – Certain Measures Concerning Periodicals ", WT/DS31/AB/R, adopted 
30 July 1997, p. 5.  
49 Appellate Body Report, "United States - Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) 
from Mexico" , WT/DS282/AB/R, adopted 28  November  2005, para. 191.  
50 Appellate Body Report, "European  Communities – Measures Affecting Trade in Large Civil Aircraft ", 
WT/DS316/AB/R, adopted 1  June 2011, para. 1313.  WT/DSB/M/419  
 
- 25 - 
 
  with respect to the same measures and legal claims related to the province of British Columbia. In 
these circumstances, Australia considered  it appropriate that the disputes be procedurally linked as 
provided for under Article  9.3 of the DSU, by creating s eparate but harmoni zed panels with the same 
panelists serving on the panels. Australia said that t his would promote efficiency and consistency in 
the dispute settlement process by allowing the overlapping claims to be dealt with at the same time 
by the sam e panelists, that this would avoid a duplication of effort and resources for the WTO 
Secretariat and the parties , and that this would guard against the risk of inconsistent findings and 
recommendations by different panels. Australia said that it was  ready to cooperate with the US and 
Canada to agree on harmoni zed procedures to apply to the disputes.  
5.3.  The representative of Canada  said that Canada was disappointed by Australia's decision to 
request the establishment of a panel with respect to Canadian measures  governing the sale of wine. 
As Canada had stated continually, Canada remained open to discussions with Australia. Canada 
remained convinced that the best solution to the matters raised by Australia remained further 
discussion between the parties with a vi ew to arriving at a mutually satisfactory solution in the near 
future. Therefore, Canada continue d to consider that the panel request was premature. Canada  
reiterate d that Australia 's request was deficient from a legal standpoint. Australia had not clearly  
articulated the legal basis of its challenge, nor had Australia adequately identified the measures that 
it alleged were problematic. As a result, Canada had been deprived of its due process rights. As 
Canada had noted at the 27 August  2018 DSB meeting , it appeared that the panel request replicated 
some of the defects of the consultations request. As a result, Canada believe d it was unlikely that 
the panel request met the requirements of Article  6.2 of the DSU. Canada reserved its right to raise  
its con cerns under DSU Article  4.4 and DSU Article  6.2 before a panel. On the issue of harmonization, 
Canada was of the view that the parties should meet to discuss the difficulties with, and any potential 
benefits of, harmonization at a meeting in the near futur e. However, as Canada had noted, 
Australia 's consultation s and panel requests had significant deficiencies which could  make 
harmonization impractical. In light of this, Canada 's believed that  harmonization was likely to raise 
many more procedural difficult ies, and to create an unnecessary resource burden on both the WTO 
Secretariat and the parties , and thus could  undermine one of the rationales for harmonization. In 
closing, Canada reiterate d that it remain ed open to continuing discussions with Australia with a view 
to resolving this matter. Canada was hopeful that the parties would meet to discuss next steps in 
the near future.  
5.4.  The representative of  the United  States  said that t he United States fully support ed Australia 's 
request for the establishment of a panel in this dispute. With respect to the US concerns with British 
Columbia 's regulations governing the sale of wine in grocery stores, the US  referred to its statements  
made at prior DSB meetings . On 20 July 2018, the DSB had established a panel in the "Canada – 
Wine (US) " dispute ( DS531 ). At th e present meeting, the DSB would establish a panel to examine 
Australia 's complaint in the "Canada — Wine (Australia)"  dispute (DS537) . The United States  said 
that Australia made identical claims in this dispute concerning the same measures that were 
addressed in the "Canada – Wine (US) " dispute ( DS531 ), while Australia also made additional claims 
concerning other Canadian measures. Under these circumstances, and in light of Article  9.3 of the 
DSU, the United States consider ed that the same persons serving on the panel in the " Canada – 
Wine (US) " dispute  (DS531) should serve on the panel  in the "Canada — Wine (Australia)"  dispute 
(DS537) . The United States was ready t o cooperate with the Panels and the parties to these dispute s 
with a view to harmonizing the timetable for the panel process in these disputes.  
5.5.  The representative of  Australia  reiterate d Australia's  views on certain comments made by 
Canada which question ed the adequacy of its consultations request and its panel request in this 
dispute . As Australia had  stated at the 27  August  2018 DSB meeting , Australia did  not accept 
Canada 's claims that Australia 's request for consultations and its subsequent panel reques t did not 
meet the requirements of the DSU . She said that Australia's  requests fully compl ied with the 
requirements of the DSU : the legal basis of Australia's  concerns were well set out and simply 
reflect ed the breadth of concerns which Australian producers had been raising over a number of 
years in respect of a range of measures governing the sale of wine in Canada and their WTO 
inconsistency.  
5.6.  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/419  
 
- 26 - 
 
  5.7.  The representatives of Argentina , Chile, China , the European  Union , India, the Republic of 
Korea , Mexico , New Zealand , the Russian  Federation , South  Africa , Chinese  Taipei  and the 
United  States  reserved their third -party rights to participate in the Panel's proceedings.  
6  UNITED  STATES – SAFE GUARD MEASURE ON IMP ORTS OF CRYSTALLINE SILICON 
PHOTOVOLTAIC PRODUCT S 
A.  Request for the establishment of a panel by the Republic of Korea (WT/DS545/7)  
6.1.  The Chairperson  recall ed that the DSB had considered this matter at its meeting on 27  August 
this year and that it had agreed to revert to it. The Chairperson drew  attention to the communication 
from Korea contained in document WT/DS545/7 . She then  invite d the representative of Korea to 
speak.  
6.2.  The representative of Korea  said that o n 14 August  2018, the Government of Korea had 
submitted its request for the establishment of a pane l regarding the matter "United  States – 
Safeguard Measure on Imports of Crystalline Silicon Photovoltaic Products " (DS545). At the DSB 
meeting of 27  August  2018, the United States had not agree d to the establishment of a panel. Korea 
therefore put its request for the establishment of a panel to examine the matter on the Agenda of 
the DSB for the second time. As Korea had explained in its request for the establishment of a panel, 
Korea  consider ed that the US safeguard measure was inconsistent with the obligations of the 
United  States under the GATT  1994 and the Agreement on Safeguards. Accordingly, Korea 
respectfully request ed once again that the DSB establish a panel to examine the matter set out in 
Korea 's request for the establishment of a panel, with standard terms of reference.  
6.3.  The representative of  the United  States  said that a s the United States had stated at the 
27 August  2018 DSB meeting , the WTO Agreement recognize d the right of Members to temporarily 
suspend concessions and other obligations when a product was being imported into its territory in 
such increased quantities and under such conditions as to cause serious injury or threat of serious 
injury to the Member 's domestic industry. The United States had exercised this right with respect to 
imports of crystalline silicon photovoltaic (CSPV) products. The United States had imposed a 
safeguard measure after the competent authority, the US International Trade Commissi on, had 
determined that increased imports of CSPV products were the substantial cause of serious injury to 
the domestic industry producing like or similar products. Accordingly, the United States regret ted 
that Korea had chosen for a second time to request  the establishment of a panel with regard to this 
matter. The United States was prepared to engage in these proceedings and to explain to the Panel 
that Korea had no legal basis for its claim.  
6.4.  The DSB took note of the statements and agree d to establish a p anel in accordance with the 
provisions of Article  6 of the DSU , with standard terms of reference.  
6.5.  The representatives of Brazil , Canada , China , Egypt , the European  Union , India, Japan , 
Kazakhstan , Malaysia , Norway , the Philippines , the Russian  Federation , Singapore , Chinese  Taipei , 
Thailand  and Viet Nam  reserved their third -party rights to participate in the Panel's proceedings.  
7  UNITED  STATES – SAFE GUARD MEASURE ON IMP ORTS OF LARGE RESIDE NTIAL 
WASHERS  
A.  Request for the establishment of a panel by the Repu blic of Korea (WT/DS546/4)  
7.1.  The Chairperson  recall ed that the DSB had considered this matter at its meeting on 27  August 
this year and that it had agreed to revert to it. The Chairperson drew attention to the communication 
from Korea contained in document W T/DS546/4 . She then  invite d the representative of Korea to 
speak.  
7.2.  The representative of Korea  said that o n 14 August  2018, Korea had submitted its request for 
the establishment of a panel regarding the matter "United  States – Safeguard Measure on Imports 
of Large Residential Washers " (DS546). At the 27  August  2018 DSB meeting , the United States had 
not agree d to the establishment  of a panel. Korea therefore placed  its request for the establishment 
of a panel to examine the matter on the Agenda of the DSB f or the second time. As explained in its 
request for the establishment of a panel, Korea  consider ed that the US safeguard measure was WT/DSB/M/419  
 
- 27 - 
 
  inconsistent with the obligations of the United States under the GATT  1994 and the Agreement on 
Safeguards. Accordingly, Ko rea respectfully request ed, once again , that the DSB establish a panel 
to examine the matter set out in Korea 's request for  the establishment of a panel, with standard 
terms of reference.  
7.3.  The representative of the United  States  said that a s the United States had stated at the 
27 August  2018 DSB meeting , the WTO Agreement recognize d the right of Members to temporarily 
suspend concessions and other obligations when a product was being imported into its territory in 
such increased quantities and  under such conditions as to cause serious injury or threat of serious 
injury to the Member 's domestic industry. The United States had exercised this right with respect to 
imports of large residential washers. An independent investigative authority, the US  International 
Trade Commission, had determined that the domestic industry producing like or similar products 
had been  seriously injured and that the cause of that injury had been  increased imports of the 
products at issue. The U S process had been  open and  transparent, and fully in accord with both 
domestic US safeguard laws and WTO obligations. Accordingly, the United States regret ted that 
Korea had chosen for a second time to request the establishment of a panel with regard to this 
matter. The United Stat es was prepared to engage in these proceedings and to explain to the Panel 
that Korea had no legal basis for its claims.  
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 representatives of Brazil , China , Egypt , the European  Union , India, Japan , Kazakhstan , 
Norway , the Russian  Federation , Thailand  and Viet Nam reserved their third -party rights to 
participate in the Panel's proceedings.  
8  KOREA  – SUNSET REVIEW OF ANTI -DUMPING DUTIES ON STAINLESS STEEL B ARS 
A.  Request for the establishment of a panel by Japan (WT/DS553/2)  
8.1.  The Chairperson  drew attention to the communication from Japan contained in document 
WT/DS553/2 . She then  invite d the represe ntative of Japan to speak.  
8.2.  The representative of Japan  said that t his case concern ed Korea 's measures to continue the 
imposition of anti -dumping duties on imports of Stainless Steel Bars from Japan. Japan consider ed 
that Korea 's measures to be inconsistent  with its obligations under the GATT  1994 and the  
Agreement on Implementation of Article  VI of the General Agreement on Tariffs and Trade 1994 ( the 
Anti-Dumping  Agreement) , as explained in Japan 's panel request. In particular, Japan consider ed 
that Korea had failed to demonstrate the nexus between the expiry of the duties and a continuation 
or recurrence of injury and to comply with the fundamental requirement that such determination 
shall rest on a sufficient factual basis and reasoned and adequate conclus ions. Therefore, Korea 's 
measures were not consistent with the obligations set forth in Article  11.3 of the A nti-Dumping  
Agreement. Japan also consider ed that Korea had used third -party data regarding the production 
capacity of Japanese exporters and had thereby resorted to facts available in a manner that was 
inconsistent with Articles  11.4 and 6.8 and paragraphs  3 and 7 of Annex  II of the A nti-Dumping  
Agreement. Furthermore, Japan consider ed that Korea had failed to follow several procedural 
obligations set forth in Articles  11.4, 6.5, 6.5.1, 6.9, 12.2, 12.2.2 and 12.3 of the A nti-Dumping  
Agreement. Japan had requested consultations on 18 June 2018 and had held consultations with 
Korea on 13  August  2018 with a view to reaching a mutually satisfactory solu tion. Unfortunately, 
the parties had been  unable to resolve the ir differences. Japan therefore request ed, pursuant to 
Article 6 of the DSU, that a panel be established to examine the matter as set out in its panel request 
with standard terms of reference i n accordance with Article  7.1 of the DSU.  
8.3.  The representative of Korea  said that Korea regret ted that Japan had chose n to request the 
establishment of a panel with regard to this matter. As referred to in Japan 's request for the 
establishment of a panel, Ko rea and Japan had held consultations in August  2018 with a view to 
reaching a mutually acceptable solution. Unfortunately, it seem ed that, rather than continuing the 
constructive dialogue that Korea had engaged in, Japan appear ed to consider that no such solution 
could be found. The Agreement on Implementation on Article  VI of the General Agreement on Tariffs 
and Trade  1994 provide d that Members had the right to take anti -dumping measures to counteract 
dumping which was causing inj ury caused by dumped imports and to maintain such measures if WT/DSB/M/419  
 
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  there was a likelihood of continuation or recurrence of dumping and injury. Korean authorities had 
determined , through an objective review of the matter based on all the available evidence befor e it, 
that it was highly likely that dumping and injury would recur if the duties were terminated. Based 
on this objective examination, Korea had thus reasonably concluded that it was necessary to 
maintain the anti -dumping measures on stainless steel bars from Japan. Korea remain ed willing to 
engage constructively with Japan on this matter and to respond to any further requests for 
information that Japan could  have.  Finally, Korea note d that Japan 's request for the establishment 
of a panel did not clearly i dentify, in accordance with the relevant agreements, the measure or 
measures that it was challenging. Furthermore, it appear ed that Japan had unduly expanded the 
scope of the matter to include issues not previously raised in its request for consultations. Its request 
for the establishment of a panel was thus in various ways inconsistent with Article  6.2 of the  DSU. 
Korea, therefore, respectfully disagree d with the establishment of a panel at the present  meeting.   
8.4.  The representative of Japan  said that  Korea had stated  that Japan's request for the 
establishment of a panel was inconsistent with Article  6.2 of the DSU. Japan disagree d with Korea's 
statement. Japan's request for the establishment of a panel was fully consistent with that provision. 
He also said t hat there was no discrepancy between Japan's consultation s request and its panel 
request. There  was there fore no basis for Korea's claim.  
8.5.  The DSB took note of the statements and agree d to revert to this matter.  
9  APPELLATE BODY APPOI NTMENTS: PROPOSAL BY  ARGENTINA; AUSTRALIA ; THE 
PLURINATIONAL STATE OF BOLIVIA; BRAZIL; CANADA; CHILE; CHINA ; COLOMBIA; 
COSTA  RICA; DOMINICA N REPUBLIC; ECUADOR;  EGYPT; EL  SALVADOR;  THE 
EUROPEAN  UNION; GUAT EMALA; HONDURAS; HON G KONG, CHINA; ICELA ND; INDIA; 
INDONESIA; ISRAEL; K AZAKHSTAN; KOREA; MEXI CO; NEW  ZEALAND; NIC ARAGUA; 
NORWAY; PAKISTAN; PA NAMA; PARAGUAY; PERU ; THE RUSSIAN  FEDERA TION; 
SINGAPORE; SWITZERLA ND; THE SEPARATE CUS TOMS TERRITORY OF TA IWAN, PENGHU, 
KINMEN AND MATSU; TU RKEY; UKRAINE; URUGU AY; THE BOLIVARIAN R EPUBLIC OF 
VENEZUELA AND VIET  NAM (WT/DSB/W/609/REV .5) 
9.1.  The Chairperson  said that t his item was on the Agenda of the present  meeting at the request 
of Mexico, on behalf of several delegations. She then drew attention to the proposal contained in 
document WT/DSB/W/6 09/Rev.5 and invite d the representative of Mexico to speak.  
9.2.  The representative of Mexico , speaking on behalf of the proponents, said that 68  delegations 
referred to in document WT/DSB/W/609/Rev.5 had agreed to submit a joint proposal , dated 
13 September  2018, to launch the selection processes to fill the vacancies in the Appellate Body . 
Mexico welcome d Egypt as a new co -sponsor  of the proposal. Mexico said that t he considerable 
number of Members that had submitt ed this joint proposal reflect ed a common concern with the 
current situation in the Appellate Body , which  was seriously affecting its functioning  and the overall 
dispute settlement system against the best interest of its Members. He said that  Members had a 
responsibility to safeguard and preserve the Appellate Body  and the dispute settlement and 
multilateral trading systems. It was therefore Members'  obligation  to proceed with the launchin g of 
the selection processes to appoint new Appellate Body members, as submitted at the present 
meeting . This p roposal sought  to: (i) start four 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 that resulted from  the resignation of Mr. Hyun Chong Kim with effec t from 
1 August  2017; a third process to replace Mr. Peter Van den Bossche, whose second term expired 
on 11 December  2017; and a fourth process to replace Mr. Shree Baboo Chekitan Servansing, whose 
four-year term of office would expire on 30 September  2018; (ii) to establish a Selection Committee; 
(iii) to set a deadline of 30  days for the submission of candidacies; and (iv) to request that the 
Selection Committee issue its recommendation s within 60  days after the deadline for nominations 
of candidates.  The proponents were flexible in the determination of the deadlines for the selection 
processes, but 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 and the dispute 
settlement systems.  
9.3.  The representative of Mexico  said that as his country had stated on several occasions, the 
Appellate Body was a key part of the dispute settlement system, which was why ensuring  the proper 
functioning of this system should be a priority for all Members to. To do so, it was fundamental for 
the Appellate Body to have a full contingent. According to the DSU, the dispute settlement system WT/DSB/M/419  
 
- 29 - 
 
  was "a central element in providing security and predictability to the multilateral trading system", 
and it ha d benefit ted all Members.  However , despite many attempts made by various delegations, 
in a few days there would only be  three Appellate Body  members left out of the seven that the 
Appellate Body should comprise.  Mexico still ha d grave concerns, and these  concerns we re becoming 
increasingly pressing. Mexico,  once again , called on Members to address, in a responsible manner, 
the current situation whereby Members had  been unable to launch the pr ocess es to select  Appellate 
Body members , a situation  which  had already lasted  over a year and a  half. By failing to do so, 
Members we re clearly disregarding the obligation  under  Article  17.2 of the DSU to fill such vacancies 
as soon as they aro se. This si tuation was unacceptable and w ould have a serious systemic impact 
on the Organization.  There were currently 11 ongoing appeals in addition to  various disputes at the 
panel stage which could reach the Appellate Body. There w ould be a major delay in the issu ance of 
Appellate Body reports  if the situation d id not change.  He said that Members  must stop the practice 
of raising concerns without proposing solutions, mainly with regard to the crisis faced by the 
multilateral dispute settlement system. Mexico reiter ated its call for Members to ensure that the AB 
selection processes  were initiated as a matter of urgency . Mexico asked this Member who had raised 
concerns to take into consideration the willingness demonstrated by other Members to engage in 
discussions and seek a solution to these concerns.  Mexico emphasize d that the achievement of such 
a solution must not prevent compliance with the legal o bligations of Members . There must therefore 
be no link between the selection process to fill the Appellate Body vacancies and other issues.  
9.4.  The representative of  the United  States  said that t he United States thank ed the Chair person  
for her continued work o n these issues. As the U nited States had explained in prior DSB meetings, 
the US  was not in a position to support the proposed decision. The systemic concerns that the US  
had identified remain ed unaddressed. For example, at the DSB meeting in August  2017, the 
United States had made clear its concerns with the issuance of appellate reports by individuals who 
were no longer members of the Appellate Body. Yet, o ne year later, an individual who was not 
currently a member of the Appellate Body continue d to decid e appeals. As the U nited States had 
explained many times, it was for the DSB, not the Appellate Body, to decide whether a person who 
was no longer an Appellate Body member could continue to serve on an appeal.51 The United States 
referred to the US statemen ts made at previous  DSB meetings for more elaboration on US concerns. 
The U nited States would  therefore continue its efforts and discussions with Members and with the 
Chairperson  to seek a solution on these important issues   
9.5.  The representative of  Japan  said that Japan thank ed the co -sponsoring Members for their 
proposal  contained in document WT/DSB/W/609/Rev.5 , which Japan  support ed. Japan refer red to 
its statements made at previous DSB meetings on this matter.  
9.6.  The representative of  India said that India referred to its statements made at previous DSB 
meetings on this matter and reiterated its serious concerns about the current impasse in filling 
vacancies in the Appellate Body and its effect on the credibility of the WTO. As  a co-sponsor of the 
proposal by 68 Members, India recognized the centrality of the WTO dispute settlement system in 
providing security and predictability to the rules -based trading system. With the resurgence of 
unilateral measures and protectionism, the role of an independent and eff ective guarantor of these 
rules bec ame all the more important. And yet, with the strength of the Appellate Body soon to be 
reduced to the minimum mandated number of three members and no resolution in sight, Members 
were moving even closer to the imminent p aralysis of the dispute settlement system. This was a 
grave situation that had already begun to undermine the rights and obligations of all Members not 
just in terms of longer delays, but also with respect to uncertainty regarding their right to have a 
second stage of review in the form of  a standing Appellate Body, a right that had been negotiated 
and agreed to by all Members. Over the past  year and a half, the DSB had witnessed long and 
impassioned statements in defence of the dispute settlement system and a demonstration of 
willingness by most Members to start a process to fix the gaps in the system. She said that it was 
high time that Members act ed collectively to translate these declarations of intent into concrete 
action s. In this context, India welcomed ideas to address the concerns raised by the United States 
with respect to the functioning of the Appellate Body. India welcome d proposals whose objective 
was to address these concerns in a comprehensive manner while prese rving the essential features 
of a two -stage review system, negative consensus and an independent Appellate Body. India had 
repeatedly stated its willing ness to engage constructively with other Members in addressing the 
existing inefficiencies in the disput e settlement system while strengthening its main features and 
principles. She said however  that this exercise could not serve as a pretext to impair  and disrupt the 
                                                
51 Articles 17.1 and 17.2 of the DSU. WT/DSB/M/419  
 
- 30 - 
 
  work of the Appellate Body. India reiterate d the importance of filling the vacancies in the  Appellate 
Body as a matter of priority.  
9.7.  The representative of  Canada  said that Canada deeply regret ted that the DSB had been unable 
to fulfil its legal obligation under Article  17.2 of the DSU  to appoint Appellate Body members as 
vacancies arose. Canada agree d that it was time to start a process or, if necessary, several processes 
to select new Appellate Body members for the three current vacancies and the fourth vacancy that 
would be created following the departure  of Mr. Servansing from the Appellate Bo dy. Canada  was 
pleased to join the proposal contained in document WT/DSB/W/609/Rev.5  and urge d the DSB to 
adopt it without further delay. Like other Members, Canada was  disappointed that the United  States 
had linked the start of the AB selection processes  to the resolution of certain procedural concerns it 
had shared with the membership . Canada was  also disappointed by the US  decision to block the 
reappointment of Mr. Servansing to a second term. Canada  thank ed Mr. Servansing for his service 
and wish ed him well in his future endeavours. Canada  invite d the United States to engage in 
discussions with interested Members with a view to expeditiously developing a solution to the 
concerns that the US  had raised. He said that Canada  remain ed committed to working wi th other 
interested Members – including the United States – with a view to finding a way to address those 
concerns in order  to allow the AB selection processes  to start and be completed as soon as possible.  
9.8.  The representative of Egypt  said that  Egypt wished to be associate d with the statement made 
at the present meeting by Mexico on behalf of the co -sponsors  of the proposal contained in document 
WT/DSB/W/609/Rev.5 . Egypt announce d its co-sponsorship of that proposal. Egypt deeply regret ted 
that t he DSB had been unable to fulfil its legal obligation under Article  17.2 of the DSU  to appoint 
Appellate Body members as vacancies arose . Egypt agreed that it was time to start a process or, if 
necessary, several processes, to select new Appellate Body mem bers for the current vacancies. 
Egypt considered that the well -functioning of the WTO dispute settlement system, including the 
Appellate Body, was a key priority for the multilateral trading system. For this reason, and in order 
to overcome the deadlock th at Members had  been facing for more than a year, Egypt once again 
encourage d all Members to support the proposal  contained in document WT/DSB/W/609/Rev.5 . 
Given the great urgency of the situation, Egypt also appreciate d the current and future efforts of the 
Chairperson to seek  possible solution s to resolve this impasse. Egypt believed that  the procedures 
and systemic issues raised before the DSB could be discussed in a separate process. He reiterate d 
Egypt's continued openness and willingness to engage  with all Members collectively or individually 
to discuss their concerns about the system.  
9.9.  The representative of  Argentin a said that in addition to co -sponsoring the proposal  contained 
in document WT/DSB/W/609/Rev.5 , Argentina express ed its commitment to a  rule-based 
multilateral trading system and its deep concern regarding the current state of play in the multilateral 
trading system in general  and the Appellate Body situation in particular.  Argentina ha d been closely 
following the concerns raised by some Members in the DSB on the procedural and substantive 
aspects of the dispute settlement system (some of which date back  several years), as well as the 
recent initiatives aimed at, inter alia, addressing these co ncerns.  Argentina welcome d all initiatives 
that aim ed to improve the WTO dispute settlement system. Although the system ha d proven to be 
efficient, it had now become clear that there were both procedural and substantive aspects of the 
system which concern ed Members and which had to be addressed. Argentina therefore consider ed 
that any discussions on finding solutions to these aspects had to  be inclusive and conducted as a 
matter of urgency.  At the 27  August  2018 DSB meeting , Argentina had stated  that Member s could 
first address the concerns which, given their procedural nature, would produce  results in the short 
term and  unblock  the AB selection processes . Members could  then address more substantive 
concerns.  Argentina reiterate d its willingness to contribute towards the clarification of the relevant 
rules of the Working Procedures for Appellate Review and the DSU, which were directly related to 
the issues that were preventing the launch of the AB selection processes , and to addre ss initiatives 
that w ould ensure the smooth  and more effective functioning of the Appellate Body.  
9.10.   The representative of  the European  Union  said that t he EU wished to refer to its statements 
made on this issue at previous DSB meetings, starting  in February  2017. He said that the gravity 
and urgency of the situation increase d with each passing month . Members had a shared 
responsibility to resolve this issue as soon as possible. The EU  thank ed all Members that had 
co-sponsored the proposal contained in document WT/DSB/W/609/Rev.5 . The EU  invite d all other 
Members to endorse this proposal, so that appointments to the Appellate Body could be made as 
soon as possible. The EU  also wished to refer to the issue related to the non -reappointment of 
Mr. Servansin g. The EU had  taken note of the US statement made at  the 27 August  2018 DSB WT/DSB/M/419  
 
- 31 - 
 
  meeting . The United States had mentioned that it was  not prepared to support the re appointment 
of Mr. Servansing  to the Appellate Body . The EU  regret ted this decision of the United  States which  
only further exacerbate d the current crisis. He said that t he United States had stated that its position 
was no t a reflection on any one individual , but reflected the US principled concerns. The EU could  
only reiterate previous statements mad e many times in the context of the blockage of appointments  
to the Appellate Body : the EU  saw no link between Rule 15 of the Working Procedures for Appellate 
Review and other issues mentioned by the United States on the one hand and the appointment and 
reappointment  of members to the Appellate Body  on the other hand . He said that t he discussion on 
these issues could very well take place without undermining the current operation of the Appellate 
Body. As always, the EU stood ready to work with the rest of  the Membership, and urged all Members 
to assume their responsibilities so that this crisis could be resolved as soon as possible.  
9.11.   The representative of  Korea  said that Korea support ed the statement made by Mexico at the 
present meeting on behalf of the pr oponents of the  proposal  contained in document 
WT/DSB/W/609/Rev.5 . Korea  wished to refer to its statements  made on this matter at previous  DSB 
meetings . 
9.12.   The representative of  Pakistan  said that Pakistan wished to register , once again , its concern 
that no consensus ha d been reached to allow to start  the process of  select ing new  Appellate Body 
members. The current impasse had reached a new and worrying level as an Appellate Body member 
would not serve a second term due to the lack of cons ensus regarding his reappointment. He said 
that it was more than ever urgent to call on Members to iron out differences and to work on a 
solution to allow the smooth functioning of the WTO dispute settlement system. Pakistan believed  
that the current system was far from being  perfect and had room for improvement. However, there 
was an urgent need to first ensure the functioning of the system before improving the rules. Pakistan 
fully supported the proposal contained in document WT/DSB/W/609/Rev.5  and call ed on Members 
to agree  to it in order to start the AB selection processes  as soon as possible.  
9.13.   The representative of Norway  thanked Mexico and the other co -sponsors of the proposal 
contained in document WT/DSB/W/609/Rev.5 on launching the selection process for new Appellate 
Body members without further delay. Norway deeply regret ted the announcement by the 
United  States that it could not support the reappointment of Mr. Servansing. Members were now 
facing a situation where four out of the seven seats would be vacant. The efficiency and 
well-functioning of the WTO dispute settlement system was at stake. In many  DSB meetings, 
Members had  heard the United States express its various concerns with the dispute settlement 
system . Members had  also heard other Members – including at the present meeting  – respond 
actively and engage in an exchange of views related to tho se concerns. Despite this demonstration 
of engagement, the AB selection processes  remained blocked. Norway again stro ngly encourage d 
the United  States to not only come forward with its concerns and engage in discussions, but also to 
participate in the process of formulating  possible ways forward. Norway agree d with other Members 
that discussions about these concerns shou ld not be linked to Members' legal obligation to fill the 
vacancies in the Appellate Body. Norway continued to stand ready and willing to engage.  
9.14.   The representative of  Chinese  Taipei  said that like other  Members, Chinese Taipei was 
disappointed that the DSB had again failed to launch the selection process for three vacancies on 
the Appellate Body  and the process for replacing Mr. Servansing , whose four -year term would expire 
on 30  September  2018. As stated at previous  DSB meetings, Chinese Taipei  encourage d all Members 
to engage in discussions  with a view to finding a solution as soon as possible. Chinese  Taipei  
remain ed committed to working with other Members to find a way to address relevant concerns.  
9.15.   The representative of  Brazil  noted that, unfortunately, under this Agenda item  Members had  
never been informed by the United States of any legal basis for its reasons  to block the processes 
for the appointment and reappointment  of Appellate Body members  and for linking  such processes  
to the  systemic concerns . Members had  heard the United States claim at the present meeting that 
its "systemic concerns remain ed unaddressed ". However , simply raising concerns about the 
functioning of the dispute settlement system was not equivalent to hav ing a f irm legal basis to justify 
the US actions. All Members had a duty to comply with their obligations under the DSU. He said that 
the United States, in its statement at 27 August  2018 DSB meeting , had referred to  "shall" stipulated 
in many DSU provisions. The word " shall" in DSU Article  17.2 ( "the DSB shall appoint persons ") was 
surrounded by other "shall" in the same Article, such as in Article  17.1 (the Appellate Body "shall be 
composed of seven persons "), in Article  17.2 ("[v]acancie s shall be filled as they arise "), Article  17.3 
("[t]he Appellate Body shall comprise persons of recognized authority "), etc. All these provisions WT/DSB/M/419  
 
- 32 - 
 
  had to  be read together. If one were to read the DSU provisions in good faith, it would seem that 
the appoint ments foreseen in Article  17.2 of the DSU could arguably not take place only if there 
were grounds  related to the lack of qualification of candidates or similar grounds . Members we re in 
the middle of a crisis and should not lose sight of the fact that they had not been given a legal 
justification for  the serious consequences resulting  from blocking of the AB selection processes . 
9.16.   The representative of  Ukraine  said that Ukraine reiterate d its support for the proposal 
contained in document WT/DSB/W/609/Rev.5 , and regretted that no solution on this matter had yet 
been reached . Ukraine encouraged all Members to seek  solutions , as soon as possible, to a number 
of concerns that had been raised regarding  the functioning of the Appellate Body , and called for a 
constructive dialogue and cooperation amongst  Members . She said that there was a need for all 
Members to try to preserve the credibility and effectiveness of the Appellate Body . In this regard, 
Ukraine support ed any  proposals to address concerns that had b een raised, which  could improve the 
functioning of the dispute settlement  system while preserving and further strengthening the main 
features and principles of the system. Ukraine,  once again , stress ed the need to find solutions in 
this regard as soon as p ossible. Ukraine considered that it was the responsibility of the entire 
Membership to start and be engaged in a meaningful discussion and to move towa rds the resolution 
of the concerns  raised . 
9.17.   The representative of  Costa  Rica, speaking  on behalf of the Gr oup of Latin American a nd 
Caribbean Countries (GRULAC), reiterated the position of the GRULAC  regarding the delicate 
situation that result ed from  the deadlock in the AB selection processes . Costa Rica  stress ed the 
GRULAC's  serious concern about this situation which affect ed the smooth functioning of one of the 
central bodies of the WTO. The delay in launching the AB selection processes  mean t failing to comply 
with an existing mandate, and implie d a blatant breach of a legal obligation set out in a cov ered 
agreement. Costa Rica was aware that concerns that had been raised with respect to the functioning 
of the dispute settlement system and to some specific issues regarding a decision -making  process , 
and that these concerns were preventing the start  of the AB selection processes . However , the 
search for a solution to these concerns should not prevent the system from continuing to function. 
A proper interpretation of Article  17 together with Article  2 of the DSU would not suggest the need 
for positive cons ensus in order to launch the selection process aimed at filling the vacancies in the 
Appellate Body. Costa Rica  requested the Chairperson  to continue t o seek a solution to this matter 
together with all Members.  
9.18.   The representative of  Singapore  said that Singapore wished to refer to its statements made 
at prior DSB meetings and reiterate d its serious systemic concerns regarding  the lengthy delays that 
had preceded the  launch  of the AB selection processes . He said that a s there had been no consensus 
for the  reappointment of the Appellate Body member whose term would expire on 
30 September  2018, the Appellate Body would then  be down to three members, which was the bare 
minimum for the establishment of a division to hear and decide an appeal. Given the strain that the 
Appellate Body was under , Singapore  called on Members to bear this in mind when considering the 
filing of appeals. Members were  now at a turning point in the impasse that called for urgent action, 
ahead of the next milestone in December  2019 when the terms of two more Appellate Body members 
would expire. He noted that the systemic concerns that had been raised could be discussed in a 
separate process. Singapore stood  ready to engage constructively and to work with other Members, 
as well a s the Chair person , in an effort to  resolve this impasse.   
9.19.   The representative of  Thailand  said that Thailand thank ed Mexico and the other Members who 
had co-sponsored the proposal contained in document WT/DSB/W/609/Rev.5  to fill the vacancies in 
the Appella te Body. Thailand support ed the launching of the AB selection processes  as soon as 
possible. Thailand  reiterate d its serious systemic concern over the proper functioning of the WTO 
dispute settlement mechanism. The Appellate Body would soon function with only three members 
instead of seven. In the absence of new Appellate Body member appointments, Members we re 
moving closer to the complete paralysis of the appellate process . This would put  the entire WTO 
rules-based trading system at risk. Th ailand noted that several efforts were ongoing in an attempt 
to resolve this impasse. Thailand remain ed committed to work ing constructively with all Members 
on this matter as a priority.  
9.20.   The representative of  Switzerland  said that with the Appellate Body f acing four vacancies, the 
current impasse was moving to yet another level. She said that the possibility of the Appellate Body 
losing its minimal quorum was looming. Like other Members, Switzerland regretted that the DSB 
had thus far been unable to proceed  with the AB appointments and was deeply concerned about this  WT/DSB/M/419  
 
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  situation. The WTO's dispute settlement system was a key pillar of the multilateral trading system , 
and that it was a shared responsibility of all Members to move beyond this impasse without further 
delay. Members need ed to engage seriously and urgently in order to address the present challenges. 
Switzerland reiterate d its readiness to engage in discussions of concerns that had been raised in 
order to explor e possible solutions.  
9.21.   The representative of  Mexico  said that on behalf of the 68  co-sponsors of the proposal  
contained in document WT/DSB/W/609/Rev.5 , Mexico regret ted that for the 16th occasion, Members 
had still been unable to start the selection process es to fill the vacancies in  the Appellate Body , and 
had thus continuously failed to fulfil their duty as Members. C oncerns  raised by some Members  about 
certain aspects of the functioning of the Appellate Body should  not serve as a pretext to impair an d 
disrupt the work of the DSB. There was no legal justification for the current blocking of the AB 
selection processes , which nullified and impaired the  rights of many Members. As Article 17.2 of the 
DSU clearly stated, "vacancies shall be filled as they a rise". By failing to act at the present meeting , 
Members  would  maintain the current situation , which was seriously affecting the functioning  of the 
Appellate Body against the best interest of all its Members.  
9.22.   The representative of  South  Africa  said that South Africa noted with disappointment that no 
consensus could be reached on the reappointment of Mr . Servansing. South Africa  thank ed 
Mr. Servansing for his services and wish ed him well in his future endeavour s. South Africa 
understood that reappointment was not a right nor was it automatic. The Appellate Body currently 
had a very busy caseload and more cases that were currently before panels could be appealed. He 
said that it was unavoidable that the WTO dispute  settlement system had become dysfunctional 
since Article  17.1 of the DSU stated that the Appellate Body "shall be composed of seven persons, 
three of who m shall serve on any one case". On ly three Appellate Body members would now remain. 
If one of them were to be unable to hear a particular case, either for reasons of illness or conflict of 
interest, the appeal function of the Appellate Body would cease to exist. Members would have to 
think very carefully about how this matter could be addressed in concrete terms wi thin a 
circumscribed timeframe.  South Africa could support a more dedicated discussion of this p articular 
issue in the DSB if  Members considered  that this could be appropriate.  
9.23.   The representative of  Hong Kong, China  said that Hong Kong , China  referred to its statements 
made at previous DSB meetings on this matter. Hong Kong, China reiterate d its deep concerns with 
the prolonged impasse over the AB selection processes . Hong Kong, China  was willing to engage in 
discussions to resolve those  matters.  
9.24.   The represent ative of  Australia  said that Australia wished to refer to its statements made at 
previous DSB meetings on this matter and reiterate d its serious concerns regarding the DSB's 
inability to launch the AB selection processes . She said that t his risk ed the enfo rceability of the WTO 
rights all Members  had enjoyed for 23  years. Australia  remain ed committed to resolving this impasse 
as a priority, and was ready and willing to work with others on pragmatic solutions.  
9.25.   The representative of  the Russian  Federation  said that Russia wished to express its  deep 
concern over the situation with the continued blocking of the AB selection processes  by the 
United  States , and the fact that the United States linked this matter to  the re solution of a number 
of concerns it had identified regarding  the functioning of the dispute settlement system. For 
approximately one year , the United States had been raising certain concerns without suggesting 
possible solutions or engaging meaningfully on that subject with the Membership . Russia  was 
extremel y concerned about the US  accusations that the Appellate Body had not taken any action in 
order to resolve the problems put forward by the U nited States when the one Member who had failed 
to take any action to address the alleged problems was the United States. The situation was further 
aggravated by the US blockage of the reappointment of Mr. Servansing. Russia consider ed that the 
blocking of Mr. Servansing 's reappointment while the Appellate Body was already weakened , was a 
deliberate action to undermin e the functioning of the Appellate Body and the entire dispute 
settlement system. Russia  believed that  the US action  demonstrate d that the continued blocking of 
the AB selection processes , and its linking with the resolution of certain concerns alleged  by the 
United States, were aimed at paralyzing the functioning of the Appellate Body  and of the entire 
dispute settlement system . They further represent ed nothing more than attempts by one Member 
to pursue its own agenda at the expense of the entire Membership . The US unwillingness to unblock 
the AB selection processes  or to engage in discussion s about  possible solutions to their concerns or 
about  the reappoint ment of  Mr. Servansing made it impossible to effectively challenge the unilateral 
actions taken by the U nited States in other areas. She said that i t was not a mere coincidence that WT/DSB/M/419  
 
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  the U nited States had adopted a series  of unilateral measures at the same time as the dispute 
settlem ent system was severely compromised through deliberate actions  of that same Member.  
9.26.   The representative of  Uganda  said that Uganda  had previously expressed concern s regarding 
the very way some Members had been behaving. Uganda had called upon the entire M embership to 
work together to ensure the proper functioning of the Appellate Body. Members could not ask the 
DSB to fill the vacant positions in the Appellate Body unless Member s would previously strengthen  
the DSB . Members had let the DSB down  by not chal lenging the conduct of some Members . 
Addressing the concerns of some Members directly was a prerequisite to achieving real progress 
regarding the functioning of the Appellate Body.  
9.27.   The representative of  Turkey  said that Turkey  wished to refer to its statem ents made at  
previous DSB meetings and reiterate d its deep concern about  the current deadlock. As a co -sponsor 
of the proposal  contained in document WT/DSB/W/609/Rev.5 , Turkey  believe d that Members had  
to launch  the AB selection processes  without further delay as required by Article  17.2 of the DSU. 
Like other Members, Turkey  also believed that discussions over concerns of Members  should not be 
linked to the launch  of the AB selection processes . He said that given  the urgency of the matter , any 
proposal to address concerns raised should be discussed separately and should not prevent the 
Appellate Body from perform ing its functions . Turkey stood ready to engage constructively to help 
overcome this impasse , and invite d all Members  to engage in discussions with the M embership in 
this regard.  
9.28.   The representative of  New Zealand  said that New Zealand wished to reiterate  its support for 
the co -sponsored proposal contained in document WT/DSB/W/609/Rev.5  and emphasi zed the 
importance of launch ing the AB selection processes . New Zealand  referred to its statements made 
at previous  DSB meetings on the importance of the multilateral dispute settlement system.  
9.29.   The representative of  China  said that China echo ed the statement made by Mexico on behalf 
of the 68 co-sponsoring Members . China was  disappointed that the efforts to launch  the AB selection 
processes  had, once again , been frustrated by one Member 's persistent and concern -driven 
blockage. He said that  the situation was worsening  as the U nited States had blocked the 
reappointment o f Mr. Shree Servansing. The Appellate Body was the irreplaceable component of the 
WTO dispute settlement mechanism. It greatly contribute d to the effective resolution of disputes 
and to the stability and predictability of the m ultilateral trading system. Ensuring the integrity and 
well-function ing of the Appellate Body serve d the common interests of all Members. Article  17.2 of 
the DSU clearly stated that "vacancies shall be filled as they arise ". The prompt initiation of the AB 
selection processes  was the responsibility and obligation that had to  be undertaken by all Members. 
China believe d that  when Members had different views on any specific concern, discussion s and 
negotiation s was the only way forward. It was unjustified for  any Member to attach any precondition 
to the launch of the AB selection processes . At present, t he Appellate Body was in crisis. There would 
be only three Appellate Body members in office after 30  September  2018. If Members went  along 
this path, they would face an unprecedented situation . One thing was clear: delaying  the AB selection 
processes  would  adversely impact the operation of  the WTO  appellate review  mechanism and the 
functioning of the multilateral trading system. Given that the aftermath would  be borne by every 
Member, Members  needed to launch the AB selection processes  as soon as possible so that the 
operation of the Appellate Body could  be ensured. It was regretful that the U nited States 
continuously refuse d to engage in meaningful discussion s after having raised its concerns with 
respect to the function ing of the Appellate Body. Once more , China  urged the U nited States to meet 
its commitments under the WTO A greements and to interpret all WTO rules in good faith.  
9.30.   The Chairperson  thank ed all del egations for their statements. She regrett ed that the DSB 
was, once again, not in a position  to agree to launch the selection processes to fill the three vacancies 
in the Appellate Body. She underst ood that this matter require d political engagement on the part of 
all Members. She reiterate d that her door was open to any delegation wishing to share ideas or 
views on this matter. She then  invite d any delegation with views on this matter to contact her 
directly.  
9.31.   The DSB took note of the statements.  WT/DSB/M/419  
 
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  10  FOSTERING A DISCUSSI ON ON THE FUNCTIONIN G OF THE APPELLATE B ODY 
(JOB/DSB/2) : STATEMENT BY HONDU RAS 
10.1.   The Chairperson  said that t his item was on the Agenda of the present  meeting at the request 
of Honduras. She then  drew attention to document JOB/DSB/2 and invite d the representative of 
Honduras to speak.  
10.2.   The representative of Honduras  said that a s a small developing country and an active Member 
in the dispute settlement system , Honduras attache d great importance to the Appellate Body. In 
light of the current situation, Honduras  believe d that action was urgently needed. Honduras believed 
that a constructive discussion was an essential first step. The survival of the Appellate Body was at 
stake. All  Members had a vital interest in the functioning of the Appellate Body as well as of the 
dispute settlement system more generally . Members had expressed concerns regarding procedural 
and substantive issues related to the Appellate Body. However, thus  far, there had been no specific 
proposal put forward in this body by any Member on how to deal with this matter. The AB selection 
processes  had been a standing item on the DSB  Agenda . Nevertheless, Members had  spent the last 
19 meetings repeating themselves and their positions. Honduras  had, therefore , taken the initiative 
of present ing this non-paper  for Members ' consideration. Honduras  aimed at  starting an open and 
inclusive discussion on the basis of concrete  and specific proposals that address ed all Membe rs' 
concerns and respect ed the principle of "nothing is agreed until everything is agreed ". Honduras was  
fully aware that there were multiple issues that had to  be resolved . Honduras believe d however  that 
Rule 15 of the Working Procedures for Appellate Review was a key issue towards a more 
comprehensive discussion. Honduras  consider ed that the discussion should start by addressing the 
two core issues regarding Rule  15 of the Working Procedures for Appellate Revi ew. These two core 
issues were: (i) the parameters that govern ed the extension of Appellate Body members ' terms ; 
and (ii) the identity of who decide d to exten d an Appellate Body member 's term in order to complete  
an ongoing appeal. Rule  15 of the Working P rocedures for Appellate Review  currently provide d that: 
"[a] person who ceases to be a [m]ember of the Appellate Body may, with the authorization of the 
Appellate Body and upon notification to the DSB, complete the disposition of any appeal to which 
that person was assigned while a [m]ember, and that person shall, for that purpose only, be deeme d 
to continue to be a [m]ember of the Appellate Body ". There were currently no specific criteria for 
determining when an Appellate Body member should continue to serve on an appeal under Rule  15. 
In its non-paper , Honduras  aimed at reflect ing various Membe rs' positions on  this matter . Honduras 
was, however , aware that there could  be other possible approaches. Regarding the issue of when 
an Appellate Body member could continue to serve beyond a four-year term for the purpose of 
complet ing an ongoing appeal , Honduras  suggest ed two options: (i) an Appellate Body member shall 
be able to continue to serve on cases in which  the oral hearing had already occurred or started [ in 
a case where a hearing had not yet  taken place , the outgoing Appellate Body member should  be 
replaced with an alternate Appellate Body member] ; or (ii) no member of the Appellate Body shall 
be assigned to a new appeal later than 60 days before the final date of their term. Regarding the 
issue of who should decide  whether  an Appellate Body memb er should serve beyond  their four-year 
term, Honduras suggest ed the following: (i) the Appellate Body could  continue to apply Rule  15 of 
the Working Procedures for Appellate Review , which allowed an Appellate Body member to complete 
their work on ongoing a ppeals subject to approval by the Appellate Body and upon notification to 
the DSB ; (ii) in the event that Members would alternatively decide that the DSB should approve the 
continuation of service of an Appellate Body member beyond their four-year term under Rule  15, 
the reverse consensus rule would apply. This would avoid a situation where an Appellate Body 
member who met the relevant criteria could be blocked by a single Member ; or (iii) in the event that 
Members would decide that the DSB should approve the continuation of service of an Appellate Body 
member beyond their four-year term under Rule  15, an alternat ive approach could be that the 
positive consensus – or positive consensus minus the parties to the dispute – could apply.  Rule 15 
of the Working Procedures for Appellate Review was simply  a stepping stone in this discussion. 
Honduras was  conscious of the several procedural and substantive issues that need ed to be sorted 
out. With this non-paper , Honduras was  not tr ying to state its national position nor to give preference 
to one option over another. Honduras  hoped to start a multilateral and constructive discussion in 
which all Members would engage with the same objective in mind: to restor e the full functionality of 
the Appellate Body and to ensur e the proper functioning of the dispute settlement system. Honduras  
remain ed available to Members for their questions and comments.  
10.3.   The representative of  Canada  thank ed Honduras for its initiative . Canada share d its sense of 
urgency and encourage d Members to take this opportunity to work towards a solution of the concerns 
that had been raised. Canada  would be pleased to further discuss this issue in a forum that was WT/DSB/M/419  
 
- 36 - 
 
  deemed appropriate by the Chair person and/or other Members. As for the substance of the 
non-paper  contained in document JOB/DSB/2 , Canada believed that  the criteria set out in options A 
or B in section one would be appropriate to determine when an Appellate Body member was eligible 
to conti nue to serve on cases beyond the expiry of their term of office. Regarding section two of the 
non-paper and the issue of who decides if an Appellate Body member should serve after the expiry 
of their term of office, although Canada  did not object to the Appellate Body's use of Rule  15 of the 
Working Procedures for Appellate Review to date, it seem ed clear that the United States had strong 
objections to this practice. As such, Canada believed  that option b , and its proposed application of  
the reverse consensus rule , could be further explored. If that option did not resolve the concerns 
raised by the United States, another option would be to have a general and prospective DSB decision 
taken to authorize the service of Appellate Body members  where certain criteria, such as those 
outlined in section one of the non-paper, were satisfied. He said that i t was important that such a 
decision be general and prospective so that the need for a DSB decision to be taken each time this 
issue arose was avoided. He also said that that vacancies on the Appellate Body, resulting from 
Members'  failure to launch and conclude a selection process for  the replacement of Appellate Body 
members, were likely to necessitate greater recourse to Rule  15 of the Working Procedures for 
Appellate Review . The simplest solution to reducing reliance on Rule  15 would be to unblock the 
launch of the AB selection processes . Once the concerns that had been cited as a justification to 
block the launch of AB selection  processes  were resolved, it would be advisable for Members  to work 
towards establishing the automatic launch of AB selection processes  so that in the future, chances 
were minimized of the DSB being confronted with a situation where the failure to launch  AB selection 
processes  would threaten the effective functioning of the system.  
10.4.   The representative of  Japan  said that Japan thank ed Honduras for its statement and 
contribution. Japan  agree d that "constructive dialogue and real engagement from all WTO Members " 
were needed to find a meaningful solution to the challenge Members we re facing. Japan  wished to 
offer a few observations in this respect. First, there appear ed to be little disagreement amongst 
Members as to the usefulness  of having a transitional arrangement that would allow outgoing 
Appellate Body members to continue to serve on an appeal after the expiry of their terms for the 
purpose of ensuring the continuity and efficiency of the appellate process. Second, the fundamen tal 
question was whether the Appellate Body had the author ity to allow a person who ceased  to be its 
member to continue their service on specific  appeals that they were assigned to while a member 
and to deem that person to be a member for that purpose. If the answer was no, then it was the 
responsibility of Members to step in and take necessary action to ensure a proper transitional 
arrangement. Third, Honduras propose d certain decision -making rule s for the DSB. Japan  
appreciate d the objective  of Honduras t o avoid or reduce the potential for any Member to intervene 
in the work of the Appellate Body in the midst of ongoing proceedings. H owever , given the decision -
making rule set out in Article  2.4 of the DSU, Japan was  not sure how the DSB could make a decision 
other than by consensus without amending the existing decision -making procedure . For Japan , the 
question was, rather , what would be the best possible solution which would maintain the integrity, 
promptness and continuity of the work of the Appella te Body under the existing decision -making 
procedure . Japan asked whether that would be an amendment to the DSU, a one-time DSB decision 
of general and prospective application, rules to guide future DSB action, ad hoc DSB decisions, a 
change to the Working  Procedures for Appellate Review , or any combination of such options . Fourth, 
Honduras propose d certain objective criteria for allowing an outgoing Appellate Body member to 
continue to serve on an appeal after the expiry of their term. Japan  agree d that there should be 
objective criteria for allowing the continued service of an outgoing Appellate Body member not just 
to maintain the integrity and continuity of the work of the Appellate Body , but also to ensure the 
proper use of transitional arrangem ents. Japan looked forward to engaging in further discussion s to 
find a meaningful and lasting solution  to this matter . 
10.5.   The representative of  Korea  said that Korea welcome d and appreciate d the efforts by 
Honduras to foster a discussion on the functioning o f the Appellate Body. Korea would participate in 
the discussion constructively.  
10.6.   The representative of  the European  Union  said that t he EU took note of the non-paper  
circulated  by Honduras  in document JOB/DSB/2, as well as of the statement s of Members made on 
this matter at the present meeting . He said that t he European Union was open to discussions aim ed 
at resolv ing the current crisis.  WT/DSB/M/419  
 
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  10.7.   The representative of  New Zealand  said that New Zealand commend ed Honduras for looking 
to make a contribution. New Zealand  consider ed that it was important to discuss issues and to look 
to find solutions among Members through the DSB and under the Chair person' s leadership.  
10.8.   The representative of  Norway  said that Norway express ed its appreciation to Honduras for its 
constructive effort to help resolve the impasse in the AB selection processes . She said that e xtending 
the mandate of Appellate Body members to let them complete the ir work on dispute s on which they 
had been assigned had been practice d for years in the Appellate Body. Other international tribunals 
also had procedural rules of this type ; these rules were  a sensible way to address such a practical 
matter. Although the Appellate Body's application of Rule  15 of the Working  Procedures for Appellate 
Review  had not been problematic in Norway 's view, Norway  appreciate d that the criticism and 
current situation made it timely to address this  issue. Norway was  therefore grateful for the 
suggestions by Honduras  contained in documen t JOB/DSB/2 , which Norway  believe d could form a 
good basis for further discussions. As a way to address criticism of the current Rule  15 of the Working 
Procedures for Appellate Review , Norway  saw merit in providing for rules which specif ied in what 
instances an Appellate Body member could  continue to serve beyond the ir four-year term for the 
purpose of completion of their duties on an ongoing appeal. Norway  noted with interest Honduras 's 
non-paper contained in document JOB/DSB/2  especially in  relation to the possibility that Members 
would decide that the DSB should approve the continuation of service as an Appellate Body member, 
and that the reverse consensus rule could then apply. Norway was hopeful that Honduras 's 
suggestions would form a useful contribution in what should be the Members'  joint efforts to 
immediately exit the current situation.  
10.9.   The representative of  Australia  said that Australia welcome d Honduras 's contribution 
contained in document JOB/DSB/2 on the functioning of th e Appellate Body. Australia  share d the 
sense of urgency expressed by Honduras and other Members to find solutions to the crisis Members 
were now facing regarding  the WTO dispute settlement system. She said that Australia  was willing 
to engage in discussion s on these and other issues of concern regarding the dispute settlement 
system. In particular, Australia was  willing to work on a technical solution to the issue highlighted 
by Honduras in its non-paper contained in document JOB/DSB/2  – transitional arrang ements for 
outgoing Appellate Body members . This technical solution would need to respect the exclusive 
authority of the DSB under Article  17.2 of the DSU to appoint Appellate Body members. Australia 
believed that  such a solution would need to consider  a number of issues, including : (i) as a threshold 
question, whether Members agree d that Appellate Body members should complete the assessment 
of appeals after the expiration of their terms; (ii) the relevant legal authority for continuation of 
service  beyond the expiry of their terms ; (iii) whether any objective limits should be placed on a 
member 's continued service; (iv) how continued service should affect collegiality on the Appellate 
Body; (v) whether the continued service of members already notified u nder Rule  15 of the Working 
Procedures for Appellate Review should be addressed; and (vi) what form would such a solution take 
– for example, a decision of the DSB, an amendment to the DSU, and so on. Australia stood ready 
to explore these issues with othe r interested Members with a view to seeking pragmatic and lasting 
solutions to concerns that had been raised.  
10.10.   The representative of  India said that India thanked Honduras for its non-paper contained in 
document JOB/DSB/2 and for possible approaches to addr essing the concerns raised with regard to 
Rule 15 of the Working Procedures for Appellate Review . India reiterate d its willingness to work 
constructively with all Members toward a quick resolution to the Appellate Body impasse and to 
participate in any consultations that the DSB chair would wish to hold on this issue.  
10.11.   The representative of  Switzerland  said that Switzerland thank ed Honduras fo r its non-paper 
contained in document JOB/DSB/2 and for its efforts aimed at fostering a constructive dis cussion.  
Switzerland shared the view that Members need ed to engage constructively in order to address the 
different concerns that had been raised with regard to the functioning of the Appellate Body and to 
find a way forward. In this regard, the non-paper  prepared by Honduras certainly represented a 
positive contribution.  
10.12.   The representative of  Singapore  said that Singapore appreciate d the efforts of Hond uras in 
preparing  its non-paper contained in document JOB/DSB/2 for fostering a discussion on issues 
relating to Rule  15 of the Working Procedures for Appellate Review. He said that Singapore welcome d 
and was open to considering ideas from Members to address the Appellate Body impasse, especially 
given the greater urgency since an additional vacancy on the Appellate Body would  arise within four 
days of the present meeting . WT/DSB/M/419  
 
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  10.13.   The representative of  Thailand  said th at Thailand appreciate d Honduras 's effort to foster a 
discussion on Rule  15 of the Working Procedures for Appellate Review. Her capital was carefully 
reviewing all issues that could  be linked to the Appellate Body appointment impasse, as well as 
possible s olutions. Without prejudice to Thailand's position, Thailand provide d the following 
preliminary comments on the Rule  15 issue. Given how Rule  15 was currently drafted, it appear ed 
that this transition rule might be applied when: (i) a person cease d to be an Appellate Body member; 
(ii) that person had been assigned to an appeal before the end of their term; and (iii) the appellate 
review of that appeal had not been completed. She said that a  textual reading of Rule  15 of the 
Working Procedures for Appellate  Review suggest ed that, as long as these three elements were met, 
the Appellate Body, upon notification to the DSB, could  authorize a n Appellate Body member  whose 
term had expired to continue serving on an appeal. In one possible extreme, an outgoing Appel late 
Body member might  be assigned to a newly filed appeal on the last day of their term. The period 
that such a  person could  continue to serve should last no longer than an additional 90 days, pursuant 
to the DSU's time limit for completing appellate proc eedings. However, given that most recent 
appeals had been  completed within approximately one  year, Rule  15 seem ed to allow a person to 
continue to serve as an Appellate Body member well beyond the prescribed four -year term. She said 
that w ithout taking a position on whether or not this would run against the DSU, especially the DSB's 
sole authority to appoint members of the Appellate Body, Thailand consider ed that further 
elaboration on criteria regarding how the transition rule should be applied could help improve the 
transparency, certainty, and predictability of the dispute settlement system.  She noted  that 
Honduras had identified certain issues in document JOB/DSB/2 which serve d as useful starting points 
for Members ' consideration of these crite ria. Regarding the issue of when  an Appellate Body member 
could continue to serve beyond the ir four-year term for the purpose of completion of duties on an 
ongoing appeal , Thailand believed that  an outgoing Appellate Body member should be able to 
complete an appeal if most of the work in that appeal had already been done, particularly in a case 
where the substantive meeting with the parties had already occurred. This would be in line with the 
rationale f or having transitional arrangements , namely , the prompt settlement of disputes. She said 
that Thailand also  consider ed that items (a) and (b) of Section  1 in Honduras's non-paper  contained 
in document JOB/DSB/2 did not have to be mutually exclusive, and thus that these two sub-items 
could  be connect ed with an "and" instead of an "or". In other words , even if  an Appellate Body 
member were assigned to a new appeal while there remained more than 60  days to their term , this 
outgoing member could  still be replaced with an alternate member if the contempla ted substantial 
work for that appeal had not yet started by the time that their term of appointment had expired. 
Regarding who would decide the continuation of service of an outgoing Appellate Body member  in 
order to complete an on going appeal , Thailand was open to consider ing an alternative approach 
whereby  that authority would lie in the DSB instead of the Appellate Body. Regarding the issue of 
how the DSB may make such a decision while minimizing the risk that either party to the dispute 
might block a selection process, unless the DSU was amended, she noted that currently the DSB 
would  have to make a decision on the transitional arrangements by following the positive consensus 
rule. Thailand stood  ready to further discuss these issues in detail with Mem bers in order to find a 
positive way forward.  
10.14.   The representative of  China  said that China welcome d the non-paper  by Honduras contained 
in document JOB/DSB/2  regarding possible amendments or revisions to Rule  15 of the Working 
Procedures for Appellate Review. Honduras's non -paper  would help facilitate the discussion on this 
important issue , which could  result in a possible solution. China  notice d that the non-paper  set out 
an objective standard for outgoing App ellate Body m embers to continue serving on cases . This 
objective standard could  help ensure the objectiv ity of the rules and equality in applying those rules . 
China would continue its study of the non-paper  on its merits. Regarding the content of the 
non-paper, China sought  further clarifications regarding the relationship between options 1 and  2. 
China  inquired whether  options 1 and  2 were complementary or mutually exclusive. China asked 
more specifically whether , in the event that the conditions for option 1 were fully satisfied, option 2 
would still be relevant in making a final determination on whether an outgoing Appellate Body 
Member could continue serving on a case. China reiterated  its appreciation of Honduras 's non-paper 
contained in document JO B/DSB/2 , and said that it was  willing to engage in future discussions. In 
the interim, China called on the prompt initiation of the selection process for Appellate Body 
members. He said that Members could simultaneously launch the AB selection processes  and 
continue the discussions on concerns of a certain Member. China  strongly oppose d considering the 
satisfactory solution of  a particular Member 's concerns as a precondition to the initiation of the AB 
selection processes . WT/DSB/M/419  
 
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  10.15.   The representative of  South  Africa said that South Africa thank ed Honduras for its non -paper  
contained in document JOB/DSB/2 and the innovative approach it had taken  to this very important 
matter. South Africa believe d that the ideas put forward by Honduras on the application of Rule  15 
warranted further discussion. Honduras's non-paper could be the start ing point of a more inclusive 
discussion to address both procedural and substantive issues. He said that more debate was needed 
on these issues that were of vital importance to the optim al operation of the dispute settlement 
system. The non -paper certainly was a step in the right direction.  
10.16.   The representative of  the Philippines  said that t he Philippines welcome d the non-paper  by 
Honduras contained in document JOB/DSB/2 which had been tabled  at a very critical juncture. The 
Philippines had taken good note of other concerns that had been  presented at previous DSB meetings 
and hoped that the discussions on these concern s could  promptly lead to  a constructive basis among 
interested Members . The Philippines believed  that Honduras 's non-paper  directly tackle d the two 
core issues regarding Rule  15 of the Working Procedures for Appellate Review , and that it was  a 
suitable starting point for discussions aimed at addressing all specific concerns already raised. The 
Philippines stood  ready to engage in constructive discussions, which in the medium and long term 
would  ideally contribute to the strengthening and improvement of the WTO rules -based system.   
10.17.   The representative of  Chinese  Taipei  said that Chinese Taipei  appreciate d the efforts made 
by Honduras. Chinese Taipei found that the  non-paper contained in document JOB/DSB/2 was a 
concrete and positive contribution to the current discussion of the Appellate Body issue. He said that 
Chinese  Taipe i stood ready to engage constructively with Honduras and other Members to discuss 
the relevant issues and to find solutions to the impasse in the AB selection processes . 
10.18.   The representative of  the United  States  said that t he United States thank ed Honduras f or its 
non-paper contained in document JOB/DSB/2 and for having placed this item on the Agenda  for the 
present  meeting. He said that the United States  looked forward to hearing other Members ' views on 
the options for addressing the concerns that the United States had been raising for over a year. The 
United  States  appreciate d that the non -paper provide d some of the possible options and that it 
recognize d that there may be other possible approac hes. He said that the United  States w ould be 
interested in hearing of other approaches that Members were considering.  
10.19.   The representative of  the Russian  Federation  said that t he Russian Federation welcome d the 
non-paper  by Honduras contained in document JOB /DSB/2 , and stood  ready to discuss this non-
paper and any other proposal that could contribute to the resolution of the situation with the 
Appellate Body. At the same time, Russia emphasize d that Members should approach such issues 
with great care and aim at achieving the results that would benefit the Appellate Body and  the 
dispute settlement system as a whole as well as the entire membership . Russia look ed forward to 
more detailed discussion s of this non-paper  and hoped that discussion s of substantive iss ues would  
take place in a separate forum. Russia thank ed Honduras for its initiative.   
10.20.   The representative of  Panama  said that Panama thanked  Honduras for its non-paper 
contained in document JOB/DSB/2 and for its willingness  to promote a dialogue on the sub ject. 
Panama was  ready to continue  these constructive discussions in order to resolve the impasse 
regarding the Appellate Body . 
10.21.   The representative of  Ecuador  said that Ecuador was grateful for the constructive non-paper 
submitted by Honduras in document JOB/DSB/2 . Ecuador consider ed that starting  a dialogue based 
on Rule 15 of the Working Procedures for Appellate Review , as suggested by Honduras,  was a 
positive development . Ecuador believed  that this was a good foundation for discussions on two 
substantiv e issues, namely , when and who should decide  if an Appellate Body member should 
continue to be a member once their four-year term had expired. Ecuador would participate in any 
future discussions  on this non-paper , which would continue to provide elements t o help unblock the 
impasse  regarding the Appellate Body . 
10.22.   The representative of  Mexico  said that Mexico  welcome d the non-paper  by Honduras  
contained in document JOB/DSB/2 . She said that Mexico reiterate d its willingness to discuss any 
suggestion which could resolve the current deadlock in the Appellate  Body and which could make a 
constructive contribution to the current dispute settlement system. Mexico  underscore d that any 
discussion on Rule  15 of the Wo rking Procedures for Appellate Review  should not prejudge or affect 
the use of this Rule to date.  WT/DSB/M/419  
 
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  10.23.   The representative of  Brazil  said that Brazil thank ed Honduras for  its contribution. Brazil was 
ready to engage in any discussion on this issue. This discussi on presuppose d participation and 
engagement by the  Member that had first raised concern s about Rule  15. Listening was not enough. 
Brazil  reiterate d once again  that this discussion could not justify the blocking of the AB selection 
processes . Brazil recalled  that Rule  15 of the Working Procedures for Appellate Review  was a regular 
rule – also present in rules of other tribunals – that existed  mainly to avoid procedural disruption to 
disputing  parties and to the Appellate Body. Brazil said that t he authority for complet ing the 
disposition of appeal s, as referred to in  the Working Procedures for Appellate Review , was derive d 
from Article  17.9 of the DSU which state d that: "[w]orking procedures shall be drawn up by the 
Appellate Body in consultation with the Chairman of the DSB and the Director -General, and 
communicated to the Members for their information ". Working procedures were drawn up  in 
February  1996 and for 20  years no Member had voiced any concern regarding  Rule 15. He said that 
of course Rule 15 had to  be read and had been drawn up within the limits of Article  17.2 of the DSU . 
The only aspect that had changed over the last 20  years  was the length of time needed for  the 
completion of appeals, which w as a consequence of the delays that all proceedin gs were 
experiencing.  
10.24.   The representative of  Argentina  said that Argentina  thanked  Honduras for its non-paper 
contained in document JOB/DSB/2 . Argentina was  currently analysing this non -paper and reiterate d 
its readiness to discuss these important issues . 
10.25.   The representative of  the United  States  said that Brazil had suggested that Rule  15 of the 
Working Procedures for Appellate Review  was not unlike transitional rules that existed in respect of 
other international tribunals. The U nited States referred Member s to its statements made at prior 
DSB meetings which discuss ed this issue.52 He said that a nalogizing with the rules of other 
international tribunals that Brazil had not named failed to acknowledge a fact apparent from even a 
cursory review of such rules: that the transitional rules for those other tribunals were based on their 
constitutive texts.  A review of the rules that applied to other international tribunals confirm ed that 
the issue of who could  continue to serve and decide a dispute was not a mere "working procedure " 
to be decided by the tribunal.  One example was the Statute of the International Court of Justice, 
which was annexed to and an integral part of the United Nations Charter.53 Another example was 
the Statute of the International Tribunal for the Law of the Sea, which set out for that Tribunal in 
Article  5(3) a transition rule for departing members.54 Similarly, for the European Court of Human 
Rights, Article  23(3) of the European Convention on Human Rights set out a rule for judges who had 
been replaced.55 Unlike those other tribunals, Rule  15 of the Working Procedures for Appellate 
Review  was not set out in the constitutive text of the WTO dispute settlement system – the DSU. It 
had therefore not been agreed to by Members.  
10.26.   The representative of  Turkey  said that Turkey thank ed Honduras for its non-paper  contained 
in document JOB/DSB/2 . Turkey believed  that the initiative of Honduras was important, and that it  
would  be helpful in identifying  concrete options to address the concerns of Members. However, it 
was crucial that all Members, including the ones with concerns about Rule  15 of the Working 
Procedures  for Appellate Review , engage d in this discussion constructively. He said that this 
discussion should not be linked to the launching of the AB selection processes  and should be handled 
separately. Turkey would  actively participate in any  discussion  on this matter.  
10.27.   The representative of  Honduras  said that Honduras wished to thank all  delegations that had 
expressed interest in the initiative put f orward at the present meeting. Honduras  was willing to call 
for an open -ended meeting to enable all Members to begin their discussions on the non-paper  
contained in document JOB/DSB/2 . Honduras  welcomed the fact that the initial exchange of views  
                                                
52 See Minutes of Meeting, Dispute Settlement Body,  28 February  2018, WT/DSB/M/409, para.  7.7; see 
also Minutes of Meeting, Dispute Settlement Body,  27 March  2018, WT/DSB/M/410, para.  9.4. 
53 Statute of the International Court of Justice, Art icle 13(3) ( "[t]he members of the Court shall continue 
to discharge their duties unt il their places have been filled. Though  replaced, they shall finish any cases which 
they may have begun "); UN Charter, Art icle 92 ("[t]he International Court of Justice shall be the principal judicial 
organ of the United Nations. It shall function in acco rdance with the annexed Statute, which is based upon the 
Statute of the Permanent Court of International Justice and forms an integral part of the present Charter "). 
54 Statute of the International Tribunal for the Law of the Sea, Art icle 5(3) ( "[t]he membe rs of the Tribunal 
shall continue to discharge t heir duties until their places have been filled. Though replaced, they shall finish any 
proceedings which they may have begun before the date of their replacement "). 
55 European Convention on Human Rights, Art icle 23(3) ( "[t]he judges shall hold office until replaced. 
They shall, however, continue to deal with such cases as they already have under consideration "). WT/DSB/M/419  
 
- 41 - 
 
  was taking p lace on this matter, which was very much needed at this point in time. Honduras once 
again thanked all delegations for their interest in the initiative related to Rule  15 put forward by 
Honduras.  
10.28.   The DSB took note of the statements.  
11  INDONESIA – SAFEGUARD ON CERTAIN  IRON OR STEEL PRODU CTS 
A.  Statement by Indonesia  
11.1.   The representative of  Indonesia , speaking under "Other Business", said that  Indonesia 
intended to implement the recommendations and rulings of the DSB in these disputes.  However , 
Indone sia wished to inform the DSB that it was impractical for Indonesia to comply immediately with 
the DSB's recommendations and rulings. Indonesia would therefore  need a reasonable period of 
time (RPT)  in order to do so. Indonesia  wishe d to discuss the RPT wit h Chinese Taipei and Viet  Nam 
in this matter.  
11.2.   The representative of  Chinese  Taipei  said that  Chinese Taipei thank ed Indonesia for its 
statement of  its intention s to implement the DSB 's recommendations and rulings in these disputes . 
The trilateral talks on the length of the RPT and on the implementation details were ongoing. As 
provided for by the DSU, prompt compliance  with the recommendations or rulings of the DSB was 
essential to ensure a proactive resolution of disputes to the b enefit of all Members. Chinese  Taipei , 
therefore , believe d that the best implementation approach for Indonesia in these cases was to 
abolish the measures at issue  at the earliest possible time. Chinese Taipei  would continue to work 
with Indonesia and Viet  Nam to resolve these disputes.  
11.3.   The representative of  Viet Nam said that Viet Nam welcomed Indonesia's statement indicating 
that it intended to promptly comply with the rulings and recommendation s of the DSB in these 
disputes. Viet Nam understood that Indon esia required a certain period of time to remove the WTO 
inconsistency of  duties on iron o r steel products. Viet Nam wished  to discuss with Indonesia its 
proposal f or a specific time -frame , in accordance with Article  21.3(b) of the DSU. Viet Nam looked 
forward to promptly restoring the unrestricted trading conditions to which Viet Nam and Indonesia 
had agreed upon under the auspices of the WTO  and their regional trade agreements . 
11.4.   The DSB took note of the statements.  
__________