RESTRICTED  
  
WT/DSB/M/377  
 
14 June 2016  
(16-3220)  Page: 1/19  
Dispute Settlement Body 
22 April 2016    
 
 MINUTES OF MEETING 
HELD IN THE CENTRE WILLIAM RAPPARD 
ON 22 APRIL 2016 
Chairman: Mr. Xavier Carim (South Africa) 
Prior to the adoption of Agenda, the item concerning the adoption of the Panel Report in the 
dispute on: "India – Certain Measures Relating to Solar Cells and Solar Modules" (DS456) was 
removed from the proposed Agenda following India's decision to appeal the Report. 
Table of Contents 
1   SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY 
THE DSB ....................................................................................................................... .... 2 
A.  United States – Anti–dumping measures  on certain hot–rolled steel products from 
Japan: Status report by  the United States ............................................................................ 2  
B.  United States – Section 110(5) of the US Copyright Act: Status report by the 
United States ................................................................................................................. .. 3 
C.  European Communities – Measures affect ing the approval and marketing of biotech 
products: Status report by  the European  Union ..................................................................... 3  
D.  United States – Anti–dumping measures on certain shrimp from Viet Nam: Status 
report by the Un ited States ................................................................................................ 4  
E.  United States – Countervailing measures on certain hot–rolled carbon steel flat 
products from India: Status re port by the Unit ed States ......................................................... 4  
F.  United States – Countervailing duty measur es on certain products from China: Status 
report by the Un ited States ................................................................................................ 5  
2   UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT 
OF 2000: IMPLEMENTATION OF THE RECO MMENDATIONS ADOPTE D BY THE DSB ........... 7  
A.  Statement by the Euro pean Union and Japan ................................................................... 7  
3   CHINA – CERTAIN MEASURES AFFECT ING ELECTRONIC PAYM ENT SERVICES ............. 8  
A.  Statement by th e United States ..................................................................................... 8  
4   THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE 
PHILIPPI NES ...................................................................................................................  8 
A.  Statement by the Philippines ......................................................................................... 8  
5   PERU – ADDITIONAL DUTY ON IMPORTS OF CERTAIN AGRICULTURAL 
PRODUCTS ...................................................................................................................... . 9 
A.  Statement by  Guatemala .............................................................................................. 9  
6   UKRAINE – ANTI-DUMPING MEASURES ON AMMONIUM NITRATE ............................. 11  
A.  Request for the establishment of a panel by the Russi an Federa tion ................................... 11 WT/DSB/M/377 
 
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  7   UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING 
AND SALE OF TUNA AND TUNA PRODUCTS ..................................................................... 12  
A.  Recourse to Article 21.5 of the DSU by the United States: Request for 
the establishment of a panel .............................................................................................. 12 
8   PROPOSED NOMINATIONS FOR THE INDICATIVE LIST OF GOVERNMENTAL 
AND NON-GOVERNMENTA L PANELISTS .......................................................................... 18  
9   APPOINTMENT/REAPPOINTMENT OF APPELLATE BO DY MEMBERS ........................... 18  
A.  Statement by the Chairman .......................................................................................... 18 
10   THE DISPUTE SETT LEMENT WORKLOAD .................................................................. 19  
A.  Statement by the Chairman .......................................................................................... 19 
 
 
1  SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB 
A.  United States – Anti–dumping measures on certain hot–rolled steel products from Japan: 
Status report by the United States (WT/DS184/15/Add.159) 
 B.  United States – Section 110(5) of the US Copyright Act: Status report by the United States 
(WT/DS160/24/Add.134) 
 C.  European Communities – Measures affecting the approval and marketing of biotech products: Status report by the European Union (WT/DS291/37/Add.97) 
 
D.  United States – Anti–dumping measures on certain shrimp from Viet Nam: Status report by the United States (WT/DS404/11/Add.45) 
 
E.  United States – Countervailing measures on certain hot–rolled carbon steel flat products from India: Status report by the United States (WT/DS436/14/Add.5) 
 
F.  United States – Countervailing duty measures on  certain products from China: Status report by 
the United States (WT/DS437/18)  
 
1.1.  The Chairman noted that there were six sub- items under this Agenda item concerning status 
reports submitted by delegations pursuant to Articl e 21.6 of the DSU. He recalled that Article 21.6 
required that: "Unless the DSB decides otherw ise, the issue of implementation of the 
recommendations or rulings shall be placed on the Agenda of the DSB meeting after six months following the date of establishment of the reasonab le period of time and shall remain on the DSB's 
Agenda until the issue is resolved". Under this Agenda item, he invited delegations to provide 
up-to-date information about compliance efforts and to focus on new developments, suggestions and ideas on progress towards the resolution of  disputes. He reminded delegations that, as 
provided for in Rule 27 of the Rules of Procedure for DSB meetings: "Representatives should make 
every effort to avoid the repetition of a full deba te at each meeting on any issue that has already 
been fully debated in the past and on which ther e appears to have been no change in Members' 
positions already on record". 
A.  United States – Anti–dumping measures  on certain hot–rolled steel products from 
Japan: Status report by the Un ited States (WT/DS184/15/Add.159) 
1.2.  The Chairman drew attention to docu ment WT/DS184/15/Add.159, which contained the 
status report by the United States on progress in the implementation of the DSB's 
recommendations in the case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
1.3.  The representative of the United States said that his country had provided a status report in 
this dispute on 11 April 2016, 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 WT/DSB/M/377 
 
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  recommendations and rulings of the DSB that had yet to be addressed, the US Administration 
would work with the US Congress with respect to appropriate statutory measures that would resolve this matter. 
1.4.  The representative of Japan said that his country thanked the United States for its statement 
and its status report submitted on 11 April 2016. Japan wished to refer to its previous statements 
that this issue should be resolved as soon as possible. 
1.5.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. B.  United States – Section 110(5) of the US Copyright Act: Status report by the 
United States (WT/DS160/24/Add.134) 
1.6.  The Chairman drew attention to docu ment WT/DS160/24/Add.134, which contained the 
status report by the United States on progress in the implementation of the DSB's 
recommendations in the case concerning Section 110(5) of the US Copyright Act. 
1.7.  The representative of the United States said that his country had provided a status report in 
this dispute on 11 April 2016, 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 sa id that the EU thanked the United States for its 
status report and its statement made at the present meeting. The EU referred to its statements 
made under this Agenda item at previous DSB meet ings. The EU wished to resolve this dispute as 
soon as possible. 
1.9.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
C.  European Communities – Measures affect ing the approval and marketing of biotech 
products: Status report by the Eu ropean Union (WT/DS291/37/Add.97) 
1.10.  The Chairman drew attention to document WT/DS291/37/Add.97, which contained the 
status report by the European Union on pr ogress in the implementation of the DSB's 
recommendations in the case concerning measures affecting the approval and marketing of 
biotech products. 
1.11.  The representative of the European Union said that, in recent meetings, the EU had already 
reported on authorisation decisions and other actions towards approval decisions taken up to 
March 2016. Two GMOs1 were scheduled for a vote at the next meeting of the Standing Committee 
on 25 April 2016. More generally, and as stated many times previously, the EU recalled that the 
EU approval system was not covered by the DSB's recommendations and rulings. 
1.12.  The representative of the United States said that his country thanked the EU for its status 
report and its statement made at the present meet ing. As the United States had noted repeatedly 
at past meetings of the DSB, EU measures affecting the approval and marketing of biotech 
products remained of substantial concern to the United States. Unfortunately, the United States 
w a s  u n a w a r e  o f  a n y  r e c e n t  p o s i t i v e  d e v e l o p m e n t s  i n  r e l a t i o n  t o  t h e  E U ' s  b i o t e c h  m e a s u r e s .  Significant delays in the consideration of biotech products were restricting US exports of agricultural products to the EU. At the present meeting, the United States wished to highlight its 
serious concerns regarding the EU's treatment of approval applications for three varieties of 
biotech soybeans. These varieties were critical for US farmers because they included important 
technologies that promoted weed control. Yet, the approval of these varieties was stalled in the EU 
system. In particular, the EU's scientific body had concluded extensive scientific reviews of these 
soybean varieties in June and July 2015. The reviews had confirmed that these biotech products were safe for use in the EU. The EU, however, continued to delay the final approval of these 
products. The United States urged the EU to complete these approvals as soon as possible. The 
                                               
1 Maize Bt11 × MIR162 × MIR604 × GA21 and cut flowers carnation line SHD-27531-4. WT/DSB/M/377 
 
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  United States also recalled that EU Member state bans of products previously approved by the EU 
represented additional, serious obstacles to trade in agricultural products. Several EU Member States had "opted-out" of certain biotech approvals without providing any scientific basis. In closing, the United States again asked the EU to ensure that its biotech approval measures were 
consistent with its obligations under the SPS Agreement. 
1.13.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
D.  United States – Anti–dumping measures on certain shrimp from  Viet Nam: Status 
report by the United States (WT/DS404/11/Add.45) 
1.14.  The Chairman drew attention to document WT/DS404/11/Add.45, which contained the 
status report by the United States on progress in the implementation of the DSB's 
recommendations in the case concerning US an ti-dumping measures on certain shrimp from 
Viet Nam. 
1.15.  The representative of the United States said that his country had provided a status report in 
this dispute on 11 April 2016, in accordance with Article 21.6 of the DSU. As the United States had 
noted at past DSB meetings, in February 2012, the US Department of Commerce had modified its procedures in a manner that addressed certain findings in this dispute. The United States would 
continue to consult with interested parties regarding matters related to the other 
recommendations and rulings of the DSB. 
1.16.  The representative of Viet Nam said that her country thanked the United States for its 
statement and its status report in this dispute. Viet Nam continued to expect the relevant parts of 
the DSB's rulings and recommendations in this dispute to be implemented by the United States in 
the context of the implementation of the seco nd shrimp dispute (DS429). Any delay in the 
implementation of the DS429 dispute may also delay the implementation of relevant parts of the 
DS404 dispute. 
1.17.  The representative of Cuba said that her country supported the statement made by 
Viet Nam. Cuba expressed its concern about the prolonged situation of non-compliance with the 
DSB's recommendations and rulings in this disput e. Cuba urged the United States to promptly 
comply with its obligations in this dispute. 
1.18.  The representative of the Bolivarian Repub lic of Venezuela said that her country supported 
the statement made by Viet Nam. Venezuela wished to refer to its previous statements made 
under this Agenda item and reiterated the import ance of prompt resolution of this dispute. 
Venezuela urged the United States to take necessary measures to end this situation of non-compliance and to report on the measures it intended to take. 
1.19.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
E.  United States – Countervailing measures  on certain hot–rolled carbon steel flat 
products from India: Status report by  the United States (WT/DS436/14/Add.5) 
1.20.  The Chairman drew attention to document WT/DS436/14/Add.5, which contained the status 
report by the United States on progress in the implementation of the DSB's recommendations in 
the case concerning the US countervailing measures on certain hot-rolled carbon steel flat 
products from India. 
1.21.  The representative of the United States said that his country had provided a status report in 
this dispute on 11 April 2016, in accordance with Article 21.6 of the DSU. On 9 March 2016, India 
and the United States had agreed to extend the re asonable period of time by 30 days, so as to 
expire on 18 April 2016.2 The United States recalled that this dispute involved determinations by 
the US Department of Commerce ("USDOC") and the US International Trade Commission (USITC) 
on certain hot-rolled carbon steel flat products from India. On 5 October 2015, the US Trade 
                                               
2 WT/DS436/15. WT/DSB/M/377 
 
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  Representative had requested that USDOC issue a determination that would render its 
determinations not inconsistent with the WTO's findings. On 6 November 2015, the US Trade Representative had requested the USITC to issue a determination in the underlying proceeding that was not inconsistent with the WTO's findings. With respect to the USITC determination, on 
7 March 2016, the USITC had issued a new determination rendering the findings with respect to 
injury in the underlying proceeding on the product from India consistent with the DSB's recommendations and rulings in this dispute. With respect to the USDOC determination, on 
14 April 2016, USDOC had issued a new final dete rmination rendering its determination with 
respect to subsidization and the calculation of countervailing duty rates consistent with the DSB's recommendations and rulings in this dispute. The US Trade Representative had proceeded to complete this implementation process by directing USDOC to implement its new determinations 
pursuant to section 129(b)(4) of the Urugua y Round Agreements Act. Accordingly, the 
United States had completed implementation with respect to the DSB's recommendations and rulings concerning the countervailing duty measure on hot-rolled carbon steel flat products from 
India. 
1.22.  The representative of India said that his country thanked the United States for its status 
report of 11 April 2016 in this dispute in accordan ce with Article 21.6 of the DSU. The reasonable 
period of time of 16 months in this dispute had ended on 18 April 2016. India noted with concern 
that even after 16 months and the expiry of the reas onable period of time, the United States in its 
status report of 11 April 2016 had stated that the US authorities were still conferring with interested parties and working to implement the DSB's recommendations and rulings in a manner 
that was appropriate. Even after the reasonable p e r i o d  o f  t i m e  c o m i n g  t o  a n  e n d ,  t h e  U n i t e d  
States seemed to have made no efforts to repeal or amend Section 1677(7)(G) of its domestic law so as to bring it into conformity with Article 15 of the SCM Agreement despite the categorical 
finding and recommendation of the Appellate Body to that effect. The failure to initiate any efforts 
in this direction, even with the reasonable period of time ending, was a cause for serious and systemic concern on the issue of compliance in dispute settlement proceedings. India also 
observed that the USITC had recently issued  a consistency determination to remove the 
inconsistency of its earlier injury finding in the underlying investigation. India was closely examining these findings to ensure conformity wi th Article 15 of the SCM Agreement. India further 
observed that USDOC had also recently issued certain preliminary findings to bring into 
conformity, some of its determinations previously found inconsistent in this dispute. The 
United States needed to give utmost priority to fully implementing the DSB's recommendations 
and rulings in this dispute. The reasonable period of time had expired in this dispute and a lack of 
compliance did not bode well for the dispute settlement mechanism in general and, in particular, 
where a developing-country Member was seeking compliance. India, once again, urged the United States to fully implement the DSB's recommendations and rulings in this dispute promptly. 
1.23.  The representative of the United States said that, as noted, the USDOC's recent 
determinations fully complied with the findings of the Panel and Appellate Body in this dispute 
regarding subsidization and the calculation of countervailing duty rates. Also, the USITC's determination rendered the injury findings in the underlying proceeding regarding subsidized 
hot-rolled steel imports from India consistent with the findings of the Panel and Appellate Body in 
this dispute. 
1.24.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. F.  United States – Countervailing duty measur es on certain products from China: Status 
report by the United States (WT/DS437/18) 
1.25.  The Chairman drew attention to document WT/DS437/18, which contained the status report 
by the United States on progress in the implemen tation of the DSB's recommendations in the case 
concerning the US countervailing duty measures on certain products from China. 
1.26.  The representative of the United States said that his country had provided a status report in 
this dispute on 11 April 2016, in accordance with Article 21.6 of the DSU. The United States 
recalled that the findings in this dispute involved fifteen separate countervailing duty (CVD) determinations by the US Department of Commerce (USDOC). On 14 December 2015, the US 
Trade Representative had requested USDOC to issu e new determinations as necessary to render 
the challenged measures consistent with the recommendations and rulings of the DSB. The WT/DSB/M/377 
 
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  United States had completed the implementation process with respect to nine separate 
investigations, as well as with respect to the one "as such" finding in this dispute. Specifically, USDOC had issued new final determinations with respect to eight separate CVD investigations, and the US Trade Representative had completed the implementation process by directing USDOC to 
implement these determinations. In one other investigation covered by the DSB's 
recommendations and rulings, USDOC had revo ked the CVD order, making unnecessary any 
determination in that proceeding. The United St ates had also completed implementation with 
respect to the one "as such" finding adopted by th e DSB. As detailed in the status report, USDOC 
had withdrawn the approach addressed by that finding prior to the DSB's adoption of the reports in this dispute. With respect to the remaining "as applied" findings in six investigations, USDOC had made a series of preliminary determinations in December 2015 through March 2016. USDOC had 
then sought and had accepted comments from interested parties on those preliminary 
determinations. On 31 March 2016, Commerce had held a hearing requested by interested parties. Commerce was currently reviewing comments received from interested parties and would address 
those in its final determinations. The United States was working to complete the ongoing 
administrative process in the remaining six CVD proceedings as soon as possible. The United States also noted that, as notified to the DSB
3, the United States and China had reached a 
procedural understanding regarding possible further proceedings under Articles 21 and 22 of the 
DSU that was designed to facilitate the resolution of the dispute. 
1.27.  The representative of China said that her country wished to express its concern that the 
United States had failed to comply with the DSB's recommendations and rulings in this dispute. 
The reasonable period of time for the United States to implement those recommendations and 
rulings had expired on 1 April 2016. Notwithstandin g the fact that as of today, 22 April, the 
USDOC had yet to complete the so-called "Section 129" proceedings by which it issued revised 
determinations. On 16 January 2015, the DSB had adopted the Panel and Appellate Body Reports 
in this dispute. The DSB had identified numerous respects in which certain countervailing duty determinations issued by the US Department of Commerce were inconsistent with the obligations 
of the United States under the SCM Agreement. After the United States had announced its 
intention to comply, the parties had held consultations regarding the length of the reasonable period of time. The parties had failed to reach an  agreement, and the reasonable period of time 
had been determined by arbitration, pursuant to Ar ticle 21.3(c) of the DSU. In an award issued on 
9 October 2015, the arbitrator had determined the re asonable period of time to be 14 months and 
16 days. China had considered that a reasonable period of time of 14 months and 16 days was already considerably longer than the United States needed to implement the DSB's 
recommendations and rulings. There simply was no justification for the US failure to bring itself 
into compliance within that period of time. China noted that the USDOC did not even begin its compliance proceedings until nearly three and a half  months after the adoption by the DSB of the 
Panel and Appellate Body Reports. The USDOC had then conducted the Section 129 proceedings in 
an entirely desultory fashion. After issuing burdensome questionnaires with inadequate amounts of time for interested parties to respond, the USDOC had then sat on the parties' responses for over 
six months, making no apparent progress towards compliance. It was not until 7 March 2016 that 
the USDOC had issued all of its preliminary determinations, less than four weeks prior to the 
expiration of the reasonable period of time. On  30 March 2016, two days before the expiration of 
the reasonable period of time, the United States had approached China and had requested a 
two-month extension orally. China had refused that request not only because it considered an 
extension of the reasonable period of time to  be unnecessary and unwarranted, but also because 
the US request had ignored the fact that the reas onable period of time in this matter had been 
established through binding arbitration. The purpose of Article 21.3(c) of the DSU was clearly 
undermined when a responding Member ignored the Arbitrator's decision and tried to grant itself what amounted to a unilateral extension. This was not the first time that the United States had failed to adhere to the reasonable period of time  in a dispute relating to trade remedies. China had 
witnessed similar conduct by the USDOC in the DS379 dispute, another dispute relating to 
unlawful AD/CVD measures. The USDOC appeared to have a pattern and practice of dragging its 
heels and ignoring deadlines when it came to complying with the DSB's recommendations and 
rulings. China called upon the United States to bring itself into compliance immediately with the 
DSB's recommendations and rulings in this dispute. 
1.28.  The representative of the United States said that his country clearly did not agree with 
China's description of USDOC's actions. The United States recalled that the scope of this dispute 
                                               
3 WT/DS437/19. WT/DSB/M/377 
 
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  was one of the most extensive in the histor y of the dispute settlement system. The DSB's 
recommendations and rulings called for further administrative action with respect to 15 separate CVD investigations. That is, the claims here could have been brought in 15 separate disputes. For most of these separate investigations, the recommendations and rulings involved multiple 
obligations under the SCM Agreement. As the United States had noted, the United States was able 
to implement all of the DSB's recommendations and rulings with respect to nine separate CVD proceedings, as well as the one "as such" finding in this dispute. Given the tremendous volume of 
work arising from the extensive scope of this dispute, the remaining six proceedings could not be 
completed by the end of the reasonable period of time, and the United States was committed to doing so as soon as possible. The United St ates regretted that China questioned the US 
commitment to implementing the DSB's recommendatio ns and rulings in this dispute. The record 
showed that China had no basis for doing so. Again, due to China’s decision to bring one single, 
combined dispute challenging multiple CVD determinations on multiple grounds, rather than 15 separate disputes each covering one CVD proceeding and advancing multiple claims, this single 
dispute was one of the most extensive in th e history of the dispute settlement system. 
Nonetheless, through the expenditure of extensive administrative resources, the United States had 
managed to complete implementation with respect to the majority of the CVD proceedings within 
the reasonable period of time. As explained, th e United States was committed to completing the 
remaining work as soon as possible. 
1.29.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
2  UNITED STATES – CONTINUED DUMPIN G AND SUBSIDY OFFSET ACT OF 2000: 
IMPLEMENTATION OF THE RECOMME NDATIONS ADOPTE D BY THE DSB 
A.  Statement by the European Union and Japan 
2.1.  The Chairman said that this item was on th e Agenda of the present meeting at the request of 
the European Union and Japan, and he invite d the respective representatives to speak. 
2.2.  The representative of the European Unio n said that the EU, once again, requested the 
United States to stop transferring anti-dumping  and countervailing duties to the US industry. 
These disbursements were incompatible with the DSB's recommendations and rulings. The EU renewed its call on the United States to abide by its clear obligation under Article 21.6 of the DSU and to submit status reports in this dispute. 
2.3.  The representative of Japan said that, since the distributions under the CDSOA had been 
continuing, Japan, once again, urged the United Stat es to stop the illegal distributions in order to 
resolve this long-standing dispute. As it had stated at previous meetings, Japan was of the view 
that the United States was under obligation to provide the DSB with a status report in this dispute, 
in accordance with Article 21.6 of the DSU. 
2.4.  The representative of Canada said that his country thanked the EU and Japan for having 
placed this item on the DSB's Agenda. Canada sh ared their view that the Byrd Amendment should 
remain under the DSB's surveillance until th e United States stopped implementing it. 
2.5.  The representative of Brazil said that he r country thanked the EU and Japan for keeping this 
item on the DSB's Agenda. Brazil referred to its previous statements made under this Agenda 
item, in particular regarding the continuation of illegal disbursements. Brazil renewed its call on 
the United States to fully comply with the DSB's recommendations and rulings in this dispute. 
2.6.  The representative of China said that her country thanked the EU and Japan for placing this 
item on the Agenda of the present meeting. China urged the United States to fully comply with the 
DSB's rulings in this dispute. 
2.7.  The representative of the United States said that, as the United States had noted at previous 
DSB meetings, the Deficit Reduction Act, which included a provision repealing the Continued 
Dumping and Subsidy Offset Act of 2000, had been enacted into law in February 2006. Accordingly, the United States had taken al l actions necessary to implement the DSB's 
recommendations and rulings in these disputes. The United States recalled, furthermore, that the WT/DSB/M/377 
 
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  EU, Japan, and other Members had acknowledged that the Deficit Reduction Act did not permit the 
distribution of duties collected on goods entere d after 1 October 2007, over eight years ago. The 
United States therefore did not understand the pu rpose for which the EU and Japan had inscribed 
this item on the Agenda of the present meetin g. With respect to comments regarding further 
status reports in this matter, as it had already explained at previous DSB meetings, the 
United States failed to see what purpose would be served by further submission of status reports which would repeat, again, that the United States had taken all actions necessary to implement 
the DSB's recommendations and rulings in these disputes. Indeed, as these very WTO Members 
had demonstrated repeatedly when they had been a responding party in a dispute, there was no obligation under the DSU to provide further status reports once a Member announced that it had implemented those DSB recommendations and rulings, regardless of whether the complaining 
party disagreed about compliance. 
2.8.  The DSB took note of the statements. 
3  CHINA – CERTAIN MEASURES AFFECTING ELECTRONIC PAYMENT SERVICES 
A.  Statement by the United States 
3.1.  The Chairman said that this item was on th e Agenda of the present meeting at the request of 
the United States and he invited the representative of the United States to speak. 
3.2.  The representative of the United States said that his country continued to have serious 
concerns that China had failed to bring its measures into conformity with its WTO obligations. To 
recall, the DSB had adopted its recommendations and rulings in this dispute in August 2012, and the reasonable period of time had expired in July 2013. But, as the United States had noted at 
past meetings of the DSB, China continued to impose its ban on foreign suppliers of electronic 
payment services ("EPS") by requiring a license, while at the same time failing to issue the specific measures or procedures for actually obtaining that license. Meanwhile, China's domestic supplier 
continued to do business as usual. The United States previously had taken note of an April 2015 
State Council decision, which indicated China's intent to open up its EPS market following issuance of implementing regulations by the People's Bank of China and the China Banking Regulatory 
Commission. That decision, however, was issued over a year ago, and, to date, China had not 
issued the implementing regulations. As required under its WTO obligations, China must adopt the implementing regulations necessary for allowing the operation of foreign EPS suppliers in China. Furthermore, once adopted, any regulations must be implemented in a consistent and fair way. 
The United States continued to seek the prompt  issuance and implementation of all measures 
necessary to permit foreign EPS suppliers to do business in China. The United States also expected that the applications of foreign EPS suppliers should be approved without delay. 
3.3.  The representative of China said that her co untry regretted that the United States had, once 
again, brought this matter before the DSB. China referred to its statements made at the previous 
DSB meetings under this Agenda item and emphasized that it had taken all necessary actions and 
had fully implemented the DSB's recommendations and rulings in this dispute. China hoped that 
the United States would reconsider the systemic implications of its position. 
3.4.  The DSB took note of the statements. 
4  THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE 
PHILIPPINES 
A.  Statement by the Philippines 4.1.  The Chairman said that this item was on th e Agenda of the present meeting at the request of 
the Philippines and invited the representative of the Philippines to speak. 
4.2.  The representative of the Philippines said that her country once again wished to express its 
deep concerns about Thailand's recent action of prosecuting an importer of Philippine cigarettes for 
the alleged under-declaration of customs value. The circumstances underlying the prosecution had 
a close relationship to the circumstances surrounding the measures at issue in the original proceedings. Both concerned the same exporter, the same exporting country, the same product, WT/DSB/M/377 
 
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  the same declared customs values for the same brands, and the same circumstances of sale. 
Moreover, Thailand's criminal prosecution was based on the same type of legal determination that Thailand itself had abandoned as grounds for its valuation decision in the original proceedings. As the WTO Panel had found, Thailand had no legitimate grounds to reject the customs values that it 
now sought to criminalize. The Thai Customs' Board of Appeals had explicitly accepted those 
customs values, in a ruling heralded by Thailand itself as a measure taken to comply. In addition to the criminal prosecution, there remained a series of outstanding compliance issues, nearly four 
years after Thailand was supposed to have complied fully with the DSB's rulings. The Philippines 
reiterated the particular importance of a ruling by  the Thai Customs' Board of Appeals, rejecting 
transaction value for 210 entries that had been covered by the DSB's rulings and recommendations in the original proceedings. As the Philippines had previously noted, the ruling 
was based on the application of a WTO-inconsistent methodology with respect to the customs 
valuation of related party transactions. Furthermore, the Philippines was deeply disturbed that Thai Customs had explicitly advised the Thai court that  they did not need to follow the WTO ruling 
because it supposedly bound only the Philippines, as the party that had brought the dispute, and 
did not bind Thailand. In achieving compliance with WTO rulings, all levels of the Thai government, whether executive, legislative or judicial, were bound by the WTO rulings and Thailand's WTO 
obligations, in particular those under the WTO Customs Valuation Agreement where, as in this 
dispute, the measures concerned customs valuation. While the Philippines once again reiterated its openness to resolving these issues bilaterally, the recent developments compelled it to reserve its right to return to dispute settlement proceedings. 
4.3.  The representative of Thailand said that his country noted the statement made by the 
Philippines at the present meeting. As stated in its status reports and at the DSB meetings, 
Thailand had taken all actions necessary to implement the DSB's recommendations and rulings in 
this dispute. 
4.4.  The DSB took note of the statements. 
5  PERU – ADDITIONAL DUTY ON IMPORTS OF CERTAIN AGRICULTURAL PRODUCTS 
A.  Statement by Guatemala 
5.1.  The Chairman said that this item was on th e Agenda of the present meeting at the request of 
Guatemala and invited the representative of Guatemala to speak. 
5.2.  The representative of Guatemala said that the reasonable period of time for Peru to bring into 
compliance the measure found to be inconsistent with the covered agreements had expired on 
29 March 2016. On that date, Peru had informed the DSB that it had adopted two Supreme Decrees to put its measure into conformity with the covered agreements. Guatemala had carefully 
reviewed both Decrees, in light of the DSB's findings and recommendations. Guatemala noted that 
the duties resulting from the Price Range System and the main features of this System remained 
in place. Contrary to its beliefs and assertions, Peru had not put its measure into conformity with 
the DSB's rulings and recommendations. Guatemala recalled that this dispute concerned an 
additional duty imposed by Peru on imports of ce rtain agricultural products, such as milk, maize, 
rice and sugar. The additional duty consisted of a variable levy which had been imposed in addition to the ordinary customs duty. The additional du ty had been determined using a mechanism known 
as the "Price-Range System", which operated on the basis of two components: (i) a range made 
up of a floor price and a ceiling price, which reflected the international price of the relevant product over the last 60 months; and (ii) a c.i.f reference price which was published every two weeks and 
which reflected the average international market  price for the affected products. When an 
international reference price calculated by the authorities was below the floor price, Peru had charged an import levy in addition to the ordina ry customs duty. The international reference price 
varied periodically as a result of the applicatio n of certain formulae to the circumstances in the 
markets for the affected products. These key elements of the system remained in place. After the amendment, there was still a price range with a floor price and a ceiling price, reflecting the average international price over the past 60 months; there was still a reference price which 
reflected the current average international price; and there was still an additional duty calculated 
as the difference between the reference price and the floor price. Peru had made very minor, cosmetic amendments to the Price-Range System, bu t had left intact the basic operation, design, 
structure and architecture of the original measure. WT/DSB/M/377 
 
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  5.3.  None of the amendments addressed any of the DSB's rulings and recommendations. In 
particular, Guatemala noted the following. First, the measure maintained its inherent variability. Both the Panel and the Appellate Body had conclude d that Peru's measure was inherently variable 
because the duties had changed automatically on the basis of a mathematical formula. The revised 
measure continued to utilize mathematical formulae for the calculation of the additional duties. 
This was the very heart, the very core of what  the Appellate Body had defined as the "inherent 
variability", which was what made the measure inco nsistent with Article 4.2 of the Agreement on 
Agriculture. The only discernible change in the basic functioning of the price band mechanism 
concerned the periodicity of the changes of the ad ditional duties. The period had been increased 
from 15 days to 1 month. Guatemala failed to see how this could in any way remedy the previously-determined WTO-inconsistency. The inherent variability of a measure did not depend on 
how frequently the measure automatically updated itself. In any event, even if one could eliminate 
the inherent variability by simply lengthening the interval, Guatemala noted that in the dispute: "Chile - Price Band" (Article 21.5), the Appellate Body had confirmed the inherent variability of 
Chile's measure that changed every two months, a period of time much longer than that of Peru's 
recent amendment. As part of the am endment, Peru also had imposed a 20% ad valorem  cap on 
the additional duties. This cap only limited the numerical range within which the additional duty 
could fluctuate but, in no way, had a bearing on the measure's inherent variability. It may be 
recalled that the original system also had a cap, al beit a higher one. The existence of that cap had 
not prevented the Panel and the Appellate Body from finding a violation of Article 4.2 and 
Article II:1(b) of the GATT 1994. 
5.4.  Second, the variable additional duties were not ordinary customs duties. They were other 
duties and charges, which were not recorded in  Peru's Schedule of Concessions. Third, the 
measure still lacked predictability and transpar ency. The Panel and the Appellate Body had found 
that Peru's measure lacked predictability and transparency because it was difficult for operators to 
predict the additional duties that were linked to fluctuations in world market prices. Peru did not 
make any change in this respect and the measure was still linked to fluctuation in world market 
prices. Fourth, the amended measure maintained it s feature of preventing the transmission of 
evolution of international prices to the domestic market. As a matter of fact, Peru had not changed the declared objective of the PRS, which was to act as "a stabilization and protection mechanism 
that makes it possible to neutralize fluctuations in international prices and limit the negative 
effects of falls in such prices". Neither had Pe ru changed the structure and design of the PRS, 
which remained the same. Finally, the elimination of elements like the adjustment factor for sugar, the c.i.f adjustments, the "importation costs" or the use of the consumer price index in the 
formulae, to mention some examples, did not address any of the DSB's rulings or 
recommendations. These features played no role in the reasoning of the Panel or the Appellate Body. The measure continued to be inconsistent with the covered agreements and Guatemala was 
disappointed with Peru's lack of compliance with the DSB's rulings and recommendations. 
Guatemala exhorted Peru to bring its measure into compliance without delay. 
5.5.  The representative of Peru said that, on  29 March 2016, upon the expiry of the reasonable 
period of time of 7 months and 29 days, Peru had circulated a report regarding the implementation 
of the DSB's recommendations and rulings in this dispute. This report was circulated to Members 
on 5 April 2016, pursuant to Article 21.6 of the DSU. As stated in its report, Peru had conducted in advance, in accordance with its tariff policy guidelines and in line with the DSB's recommendations 
and rulings, a full revision of the additional duties resulting from the Price Range System 
established by Supreme Decree No. W 016-91-AG, as amended by Supreme Decree 
No. W 115-2001-EF, in order to bring these duties into line with Peru's WTO obligations. Following 
that revision, the duties resulting from the app lication of the Price Range System were modified 
through the enactment of two pieces of le gislation: Supreme Decree No. W 103-2015-EF, 
published in Official Journal " El Peruano " on 1 May 2015, and Supreme Decree 
No. W 055-2016-EF, published on 28 March 2016. The main changes introduced were as follows. 
The additional duties resulting from the applicatio n of the Price Range System, added to the c.i.f. 
ad valorem  duties, must not exceed a maximum of 20 % of the c.i.f. value of the goods. The 
adjustment factor that had been used specifically to calculate the additional duties applicable to 
imports of sugar was eliminated, as was the factor associated with import costs for the 
determination of the specific duties. The additional duty resulting from the application of the Price Range System applied as from the entry into force of the Resolution issued by the Deputy Minister 
of the Economy determining the reference prices and the additional duties to be applied. The 
update of the customs tables applicable to the im portation of products included in the Price Range 
System had been approved; these tables would remain in force until 30 June 2016. Peru WT/DSB/M/377 
 
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  considered that, with the implementation of those measures, it had complied with the DSB's 
recommendations and rulings in this dispute, in conformity with its commitments under the multilateral trading system. 
5.6.  The DSB took note of the statements. 
6  UKRAINE – ANTI-DUMPING ME ASURES ON AMMONIUM NITRATE 
A.  Request for the establishment of a pane l by the Russian Federation (WT/DS493/2) 
6.1.  The Chairman recalled that the DSB had considered this matter at its meeting on 
23 March 2016 and had agreed to revert to it. He drew attention to the communication from the 
Russian Federation contained in document WT/D S493/2, and invited the representative of the 
Russian Federation to speak. 
6.2.  The representative of the Russian Federation  said that, at the previous DSB meeting held on 
22 March 2016, Russia had requested the establishment of a panel in the DS493 dispute with 
standard terms of reference as set forth in Articl e 7.1 of the DSU. Russia still believed that all 
other ways of settling this matter were exhaus ted. Russia recalled that its request was made 
following its attempts to find an acceptable solution with Ukraine bilaterally, in particular in the 
course of formal consultations between Russia and Ukraine as the first stage of the DS493 dispute. 
These consultations had taken place on 25 June 2015. Unfortunately, the matter had not been 
resolved during those consultations and the situation had not changed since the previous DSB 
meeting. Ukraine's anti-dumping measures imposed on imports of ammonium nitrate originating in Russia following expiry and interim reviews were  still active. Russia believed that they were 
imposed and were currently applied in violation of numerous provisions of the WTO Agreements. 
Therefore, Russia reiterated its request for the es tablishment of a panel to rule on this matter. 
6.3.  The representative of Ukraine said that he r country regretted that Russia had considered it 
necessary, for the second time, to request for the establishment of a panel in respect of 
anti-dumping measures on ammonium nitrate applied by Ukraine. As Ukraine had stated at the 
previous DSB meeting, the measures at issue were the result of a thorough and objective investigation by the competent authorities in Ukraine and had been applied in full conformity with 
the WTO Agreements, in particular the Agreement on  Implementation of Article VI of the General 
Agreement on Tariffs and Trade 1994. Ukraine wi shed to reiterate that it had engaged in 
constructive and meaningful consultations with Russia in an effort to find a mutually agreed solution that would be respectful of Ukraine's rights under the relevant WTO Agreements. Ukraine 
had provided extensive comments on issues in Ru ssia's request for consultation and believed that 
it had provided the necessary information and clarification explaining its position. Moreover, Ukraine was deeply concerned that among the legal issues in Russia's request for panel 
establishment were aspects of the measures not discussed previously in the course of 
consultations. Specifically, the legal claims under Articles 3.1, 3.2, 3.4, and 3.5 of the Agreement 
on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 significantly 
changed the essence of the complaint and could not have evolved from the consultations. As these 
claims considerably expanded the scope of th e present dispute, the willingness of Russia to 
proceed with the panel establishment without consulting on these matters with Ukraine first was both unexpected and disturbing. Still, Ukraine understood that a panel would be established at the 
present meeting, in accordance with Article 6.1 of  the DSU. Ukraine was prepared to engage in the 
panel proceedings and to explain that Ru ssia had no legal basis for its claims. 
6.4.  The DSB took note of the statements and agreed to establish a panel in accordance with the 
provisions of Article 6 of the DSU with standard terms of reference. 6.5.  The representatives of Australia, Canada, China, Colombia, the European Union, Japan, 
Kazakhstan, Norway and the United States reserved their third-party rights to participate in the 
Panel's proceedings. WT/DSB/M/377 
 
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  7  UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND 
SALE OF TUNA AND TUNA PRODUCTS 
A.  Recourse to Article 21.5 of the DSU by the United States: Request for 
the establishment of a panel (WT/DS381/32) 
7.1.  The Chairman drew attention to the comm unication from the United States contained in 
document WT/DS381/32 and invited the representative of the United States to speak. 
7.2.  The representative of the United States said  that his country found itself in a rather unusual 
position at the present meeting. As the Un ited States had discussed at the March 2016 DSB 
meeting, the US National Oceanic and Atmospheric Administration ("NOAA") had issued a new rule modifying the dolphin safe labelling measure at issue in this dispute. The new rule directly addressed the DSB's findings on the US dolphin safe labelling measure, and brought the 
United States into compliance with its WTO obligations. The United States had discussed the 
recent rule with Mexico on a number of occasions. However, Mexico had indicated that it was not prepared to refer the matter of compliance back to a compliance panel at this point. Mexico had 
insisted that the arbitration under Article 22.6 of the DSU to review Mexico's request for 
authorization to suspend concessions must move forward immediately and, at the DSB meeting on 23 March 2016, Mexico had said that it considered that the US compliance action was not "legally 
pertinent" for the arbitration. Thus, Mexico appe ared to be seeking to avoid the fact that the 
United States had now changed its measure to come into compliance with its WTO obligations and instead proceed as though the measure at issue was unchanged. As a result, the United States was, at the present meeting, taking the unusual step of requesting that the DSB establish a 
compliance panel pursuant to Article 21.5 of the DSU to confirm that the United States had 
brought its measure into compliance with the DSB's recommendations and rulings. The United States was aware of only one prior instance in which the Member concerned had requested 
the establishment of a panel pursuant to Article 21.5 of the DSU. At the same time, this was a 
course of action specifically endorsed in an  Appellate Body Report for a Member concerned.
4 The 
United States understood that Mexico shared its desire to bring this dispute to a close as soon as 
possible and surely did not seek further delay. Initiating this Article 21.5 proceeding at the present 
meeting best facilitated resolving this dispute. Accordingly, the United States expected that Mexico would not object to the establishment of the pane l at the present meeting, which would only mean 
that referral of this matter to a compliance pa nel was delayed by some days by the need to 
convene yet another DSB meeting. 
7.3.  The representative of Mexico said that, for more than 30 years, his country had been 
prevented from entering the US tuna market, an d although Mexico had repeatedly demonstrated 
that the US "dolphin-safe" labelling measures were  discriminatory, the United States continued to 
avoid compliance with WTO rules, notwithstanding the true impact on dolphins of fishing methods other than that used by the Mexican tuna fleet. Almost eight years ago, Mexico had initiated 
proceedings against the US measures at the WTO,  and although it had demonstrated before the 
Panel and the Appellate Body, on two different occasions, that its exports were suffering discrimination, Mexico was still unable to suspend concessions vis-à-vis the United States. This cast doubt on the suggestion that the dispute settlement mechanism was "the jewel in the crown 
of the WTO". Though Mexico had the right to susp end concessions, given that the United States 
had failed to comply with the DSB's rulings and recommendations within the 13-month reasonable period of time for compliance, which had been confirmed by the Panel and the Appellate Body, 
Mexico had to resort to arbitration to effectively determine the amount of the suspension to which 
it was entitled. Meanwhile the United States, without informing Mexico in time and without requesting consultations with Mexico, was seeking new compliance proceedings under Article 21.5 
of the DSU. Mexico, for its part, also reserved th e right to request an Article 21.5 compliance panel 
against the US measures, as amended in March 2016, independently of the arbitration proceedings and the US panel request. Though the United St ates claimed that the scope of its request was 
sufficient to warrant the suspension of the Article 22.6 arbitration, that request was contrary to the 
DSU provisions. The correct way of proceeding would have been to suspend any panel proceedings 
under Article 21.5 until the Article 22.6 arbitration was concluded. The systemic consequences of what the United States was trying to do raised concerns, and it was damaging to the "jewel in the 
crown" for the responding Member to be able to delay proceedings for the suspension of 
                                               
4 Appellate Body Report, United States – Continued Suspension of Obligations in the "EC – Hormones"  
Dispute, WT/DS320/AB/R, adopted 14 November 2008, pa ragraph 353 ("US – Continued Suspension" (AB)). WT/DSB/M/377 
 
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  concessions by unilaterally amending the measure at  issue. The automaticity of the system would 
be seriously undermined, since it would mean that a Member could, every now and then, delay the proceedings ad infinitum  and thus avoid both compliance and the suspension of concessions. 
Mexico, therefore, insisted that the United Stat es comply with the other requirements prior to 
making a request for the establishment of a panel. 
7.4.  At the present meeting, Mexico wished to sh are a number of issues that should be of concern 
and of systemic interest to Members. The Unit ed States had not requested consultations with 
Mexico, nor had such consultations taken place, as required by the DSU. Article 21.5 of the DSU 
stated that disagreement on compliance "shall be decided through recourse to these dispute settlement procedures", which included Article 4 regarding consultations. The US request was incomplete with respect to this requirement pursuant to Article 6 of the DSU that stipulated that 
requests for the establishment of a panel "shall indicate whether consultations were held". The 
United States had not been exempted from holding consultations under the Sequencing Agreement (WT/DS381/19). In addition to the procedural errors, it was concerning that the United States 
should claim that consultations had been held regarding the "2016 interim final rule" 
(WT/DS381/32). That had not happened. On 10 March 2016, Mexico had requested authorization to suspend application to the United States of concessions and other obligations in accordance with 
the DSB's rulings and recommendations of 3 December 2015 (WT/DS381/29). On 22 March 2016, 
the United States had objected to the request for the suspension of concessions, and the case was 
referred to arbitration under Article 22.6 of the DSU (WT/DS381/30). Mexico noted that, on 23 March 2016, at the DSB meeting the DSB Chair had stated that the matter had been referred to 
arbitration. Now the United States wanted Mexico to delay the arbitration under Article 22.6 of the 
DSU because, in "its opinion", it had come into compliance (WT/DS381/32, footnote 12). In accordance with the DSB's rulings and recommendations of 3 December 2015, the date of 
adoption of the Panel and Appellate Body Repo rts (WT/DSB/M/371), the United States must 
comply with its obligations, and as long as there was no new determination, Mexico had the right to continue the proceedings under Article 22 of the DSU, and in particular the arbitration under 
Article 22.6 of the DSU. Consequently, Mexico was not in a position to accept the suspension of 
arbitration under Article 22.6 of the DSU, and belie ved that there was no legal basis for doing so. 
Nor, indeed, could the DSB delay it. The United States could not simply review the inconsistency of the amended measure and unilaterally declare that there was no more inconsistency or 
non-compliance on the basis of which Mexico would be authorized to suspend concessions. It was 
only when a compliance panel (and, where necessary, the Appellate Body) had determined that the measure at issue had been brought into confor mity and the relevant reports had been adopted 
by the DSB that the current inconsistency status could be modified in such a way as to make the 
suspension of concessions no longer applicable ( under Article 22.8 of the DSU, the suspension of 
concessions continued to be applicable pending the result of Article 21.5 proceedings, as reflected 
in the Report of the Appellate Body in the dispute: "United States - Continued Suspension", 
paragraphs 305, 315, 338 – 345, 355). 
7.5.  With regard to the 2016 interim final rule, Mexico's view was that it did not comply with the 
US obligation and did not resolve the tuna dispute.  On the contrary, it preserved the status quo , 
namely discrimination against Mexican exports. Mexico reserved the right to request an 
Article 21.5 procedure against such measures, regardless of any actions taken by the United States. The US conduct was inconsistent with paragraph 10 of the Sequencing Agreement 
(WT/DS381/19), which the United States had concluded with Mexico regarding Articles 21.5 
and 22.6 of the DSU. Paragraph 10 of that agreement stated that "[t]he parties will continue to cooperate in all matters related to these agreed procedures and agree not to raise any procedural 
objections to any of the steps set out herein". The Sequencing Agreement did not provide for any 
second round of Article 21.5 compliance proceedings. Instead, it had expressly provided that Mexico may request authorization for the suspension of concessions on the basis of an Article 21.5 compliance proceedings in which the DSB determined that the measure adopted for the purpose of 
compliance was inconsistent, and stated that "[t]he parties will cooperate to enable the arbitrator 
under DSU Article 22.6 to circulate its decision within 60 days of the referral to arbitration" (WT/DS381/19, paragraph 8).  In particular, the new regulations would not become totally 
effective until the end of May, and would have no effect on tuna products entering the US market 
until many months thereafter. As had been made clear during the compliance proceedings, it was not enough to specify certain requirements in the measure if those requirements were not going to 
be enforced or enforceable, since the illegal discrimination would be able to continue in practice. In 
order to bring the measure into conformity, the Un ited States had to be capable of demonstrating 
how the measure was being applied in reality, and that probably would not be possible until the WT/DSB/M/377 
 
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  following year. For these reasons, Mexico could not accept, at the present meeting, the 
establishment of the panel as long as the correct procedures had not been complied with. 
7.6.  The representative of Guatemala said that , at the present meeting, his country would not 
express any view about the most recent US dolphin-safe labelling amended measure or any 
opinion on whether the United States had brought the measure subject to the DSB's 
recommendations into compliance with the covered agreements. Recourse to Article 21.5 of the DSU was the appropriate way to resolve any disagreement between the parties with regard to 
compliance with the DSB's rulings and recommendations. Rather, Guatemala wished to take the 
opportunity to comment on the US view that Mexico should suspend the arbitration proceedings under Article 22.6 of the DSU. According to the Un ited States, "the DSB cannot grant authorization 
to suspend concessions in any amount where the Member concerned has come into compliance". 
The United States was right that the DSB could not grant authorization to suspend concessions 
where the Member concerned had come into compliance. However, the problem was that the DSB had not yet determined whether the United States had brought its measures into compliance. That 
determination was to be made through recourse to the proceedings under Article 21.5 of the DSU. 
Until such a determination was made, Guatemala considered that there was no obligation for Mexico to suspend the arbitration under Article 22.6 of the DSU nor would there be a basis for the 
DSB to be prevented from granting authorization to Mexico to suspend concessions or other 
obligations. 
7.7.  The representative of Canada said that his country was compelled to intervene on this 
request due to the novel and unprecedented nature of the circumstances in which it was being 
made, and the significant systemic implications arising from the manner in which this dispute 
appeared to be proceeding. Canada noted at the outset, as pointed out by Mexico, that these circumstances, in which a second compliance measure had been taken after the adoption by the 
DSB of initial compliance review reports, but prior to the authorization of suspension of 
concessions, were not clearly covered by the cu r r e n t  p r o v i s i o n s  o f  t h e  D S U .  I n  f a c t ,  t h e s e  
circumstances, which involved issues raised in the DSU review discussions of both the sequencing 
and, indirectly, the post-retaliation proposals, would not be clearly covered even by any of those 
proposals, if they were to be agreed in their cu rrent form. In that respect, Members may need to 
revisit those proposals to see whether they could be adjusted to cover these circumstances. The fact that once this panel was established there would be parallel Article 21.5 and 22.6 proceedings 
would present significant systemic legal issues for both the panel and arbitrator to consider. Given 
that non-disputing Members may not have an opportunity to provide views to the Article 22.6 arbitrator on how these parallel proceedings should be reconciled, Canada wished to take the 
opportunity at the present meeting to share its vi ews. Canada pointed out that, by letter to the 
DSB Chairman on 11 April 2016, Canada had reserved its third-party right to participate in the Article 22.6 proceedings should those proceedings address any disagreement between the 
disputing Parties concerning compliance. As a ge neral matter, Canada agreed that where there 
was disagreement as to the WTO-consistency of a measure taken to comply after the expiration of the reasonable period of time, that disagreement should be resolved through recourse to compliance proceedings under Article 21.5 of the DSU. It was also established practice, and 
supported by the Sequencing Agreement between th e United States and Mexico in this specific 
dispute, that if the DSB ruled that a measure taken to comply remained inconsistent with the WTO Agreement, the complaining party had the right to request authorization to suspend concessions 
and other obligations. Once a dispute arrived at  this point, however, the adoption by the 
responding party of new compliance measures prior to that request did not, in Canada's view, give rise to an obligation on the complaining party to seek, or even to await the completion of, any 
additional compliance review before it could purs ue its rights under Article 22 of the DSU. From 
that perspective, Canada did appreciate that it was the United States that had made the request for establishment of a panel to review compliance of its own measure. 
7.8.  As Canada and others had indicated for many years in the DSU negotiations, this was an 
appropriate way to proceed in these kinds of circumstances. However, Canada would resist any 
suggestion either that the Article 22.6 proceedings could not proceed, or if they did, that the DSB 
could not authorize suspension of concessions,  pending the outcome of the compliance review. 
While Canada welcomed the US initiative to seek a multilateral determination of the compliance of 
its new measure, Canada considered that the Articles 21.5 and 22.6 proceedings should be allowed to advance in parallel. A delay in the Article 22.6 proceedings by any means other than with the 
agreement of the complaining party would create harmful incentives for responding parties to 
amend repeatedly or replace a WTO-inconsistent compliance measure and assert compliance WT/DSB/M/377 
 
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  simply to forestall the suspension of concessions. In such parallel proceedings, Canada considered 
that the Arbitrator should focus on the level of nullification and impairment caused by the original compliance measure that was the subject of the DS B's recommendations and rulings. In doing so, 
the Article 22.6 Arbitrator could defer the assessment of the WTO-consistency of the new 
compliance measure to the Article 21.5 panel, as each adjudicator respected its respective 
mandate. Canada accepted that allowing the two proceedings to advance in parallel in this way, possibly resulting in a DSB authorization to suspend concessions even prior to the completion of 
the compliance review was not an entirely satisfac tory result. However, any alternative approach 
allotted the entirety of the prejudice on the comp laining party of the failure of the responding 
party to have complied in a timely manner. Ultimately, there would always be circumstances for which the procedures in the DSU would not immedi ately provide satisfactory answers. In those 
circumstances, all Members should support interpre tations of the DSU that did not result in undue 
prejudice to either party, but especially to a complaining party that had prevailed on multiple occasions. The best result in these situations was of course for the parties themselves to agree to 
procedures that each considered adequately protected their rights. In that respect, Canada 
encouraged the parties to this dispute to find a way forward that reflected the very unique circumstances of this dispute, while preserving the systemic integrity of the dispute settlement 
system. 
7.9.  The representative of Japan said that, although his country was not in a position to know 
exactly how the factual and procedural background had led to the US request for the 
establishment of a compliance panel in this dispute, the US action raised a number of important 
issues of a systemic nature on which Members should reflect carefully. The United States had 
made this request at the critical stage in this dispute. Following the DSB's ruling on the issue of compliance, the United States had announced the completion of its implementation and yet Mexico 
had made its request for authorization to suspend concessions or other obligations. Upon objection 
by the United States, the matter had been referred to arbitration pursuant to Article 22.6 of the DSU. This meant that there would be parallel pr oceedings under Article 21.5 and Article 22.6 of 
the DSU. This raised some questions: (i) what was the relationship between these two 
proceedings? (ii) what were their respective jurisdictions, including the issue of whether the Article 22.6 arbitration could review the issue of compliance? (iii) what should be the proper procedural sequence between these two proceedings?  and (iv) what if these proceedings produced 
different conclusions? The US action could possibly delay and defer the DSB's consideration of the 
request for authorization properly made by Mexico at this very critical stage in the dispute. This may potentially set a precedent which could leave room for abuse in the future. Furthermore, this 
panel request made by a responding party would raise questions as how to define and limit the 
scope of disagreement that a compliance panel sh ould decide and which party should bear the 
burden of proving each of the i ssues properly before the panel. In order to avoid any procedural 
difficulties, Japan urged the parties to this dispute to discuss how the two proceedings could be 
treated as orderly as possible, taking into account appropriate due process for both parties. Since this case involved difficult issues and the DSU provisions were not clear in this regard, the parties may need to find a creative solution which would be consistent with the DSU. Once this panel was 
established, Japan would wish to participate in this dispute as a third party in order to ensure that 
no negative precedent was set for future disputes. 
7.10.  The representative of Korea said that, at the previous DSB meeting, Mexico had requested 
authorization from the DSB to suspend concessi ons in the amount of US$472.3 million annually. 
As the United States had objected to the level of  suspension requested, under Article 22.6 of the 
DSU, the matter was referred to arbitration. As Mexico noted, that arbitration process was 
ongoing. Korea agreed with Mexico that there was no DSU provision that could impede the 
arbitration process. The United States argued that the DSB could not grant authorization to 
suspend concessions in any amount where the Member concerned had come into compliance. At the present moment, it was not known whether the United States, having revised the amended 
tuna measure, was in compliance with the DSB's recommendations and rulings. There was only a 
claim of compliance. The Article 21.5 panel would, upon establishment, make that determination in due course. Until that determination was made and the relevant report was adopted by the DSB, 
the arbitration proceedings should progress in parallel with any compliance panel proceedings. 
7.11.  The representative of Australia said that her country was mindful of the complex systemic 
issues the current scenario gave rise to. Australia considered that the United States was entitled to 
request the establishment of an Article 21.5 panel to determine whether its new measure was 
consistent with the GATT 1994 and the TBT Agreement. Australia noted that the United States was WT/DSB/M/377 
 
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  required to identify in its panel request how its new measure addressed the inconsistencies 
identified in the DSB's recommendations and rulings. Article 21.5 of the DSU was sufficiently broad, in Australia's view, to encompass such a panel request. Equally, Mexico would also be entitled to file its own request for the estab lishment of a panel under Article 21.5 of the DSU 
identifying the element or elements of the new meas ure it considered were not in compliance with 
the GATT 1994 and TBT provisions. However, Australia considered that the arbitration proceedings commenced under Article 22.6 of the DSU should continue in parallel to any Article 21.5 panel 
process unless otherwise agreed by the parties. To require suspension of an Article 22.6 arbitration 
contingent on an Article 21.5 panel finding woul d prevent a complaining Member from exercising 
its rights under the DSU. Moreover, there was no  legal basis in the DSU for such a suspension. 
Australia was also concerned about the systemic implications of requiring suspension of the 
Article 22.6 arbitration. In Australia's view, it would unfairly delay the rights of a Member to seek 
suspension of concessions for measures which the DSB had agreed were not consistent with WTO obligations. Further, it would undermine Members' confidence in the ability of the dispute 
settlement system to ensure that parties sustained efforts towards the resolution of disputes in 
accordance with the DSU provisions. 
7.12.  The representative of the European Union said that the EU noted the US request for a 
second compliance panel. The EU also noted that there was also a pending arbitration proceeding 
regarding this dispute. This appeared to raise a novel procedural situation which involved a number of complex issues. The EU recalled that, in the "EC – Bananas III" dispute, reference was made to the fact that the compliance panel and the arbitration panel would co-ordinate their work, 
but since they would be the same individuals, the reality was that they would find a "logical way 
forward", which would help to resolve all the remaining disputes, whilst respecting the rights of both parties (as well as third parties) and the integrity of the DSU. The EU expected that, in the 
circumstances of the present case, the adjudicators would similarly seek to find a "logical way 
forward", and would, in that respect, be suppo rted by the parties and third parties. The EU 
considered that what exactly that "logical way forward" might be could depend, in some measure, 
on the information that would come to light duri ng the ensuing proceedings, in particular the 
compliance proceedings. Specifically, if the second compliance effort overwhelmingly appeared to be complete, then the EU believed that could have consequences for what the "logical way forward" might be when it came to co-ordinatin g the two proceedings. The same would be true if, 
conversely, the second compliance effort would a ppear to be minimalist. The EU would therefore 
prefer to wait for such further information befo re expressing a view on what the "logical way 
forward" might be in the particular factual circumstances of this dispute. Given the systemic 
importance of this issue, the EU trusted that the adjudicators would ensure that, during the 
proceedings, the rights and interests of third pa rties and of the Members more generally would be 
fully taken into consideration, and that this would include the opportunity to comment both in 
writing and orally once the full set of facts and arguments were known. 
7.13.  The representative of Norway said that hi s country noted that the discussion at the present 
meeting raised several matters of systemic inte rest, including the question of sequenced or 
parallel proceedings when a measure had been amended after the first Article 21.5 proceedings, 
but prior to authorization of suspension. Without pr ejudice to its position on this issue, Norway 
noted that a Member's right to retaliate was a key part of a well-functioning dispute settlement system. In Norway's view, it was crucial for Members to ensure that all stages of a dispute could 
operate in an efficient and effective manner in orde r to secure full and prompt implementation of 
the DSB's rulings and recommendations. 
7.14.  The representative of Brazil said that many new interpretations and issues were being 
raised with respect to the DSU provisions and noted that this should not be seen as a shortcoming 
of the DSU. As Members moved along there was a n eed to clarify certain rules. Brazil noted that 
Article 21.5 of the DSU was not meant to cover the po ssibility of multiple recourses. As stated by 
the EU, the circumstances of this dispute seemed to be another variation of the Bananas dispute. 
There were two possibilities: (i) a prolonged litigation with repeated recourses to Article 21.5 of 
the DSU; or (ii) an Article 22.6 arbitration would conclude its proceedings based on the measure that was no longer in place. Therefore, if a party to a dispute wished to avoid retaliation, it should 
comply with the decision of the first compliance panel under Article 21.5 of the DSU. 
Unfortunately, the DSU provisions did not provide clear guidance on this issue. Thus, with good faith and will, the parties to this dispute would have to find a way forward in this situation. Like 
other delegations, Brazil encouraged Mexico and the United States to discuss, in good faith, WT/DSB/M/377 
 
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  possible options so as to find a solution, which would not only be acceptable to the parties in this 
dispute, but would also constitute a more definitive solution in the future in similar circumstances. 
7.15.  The representative of the Russian Federation said that her country did not have any precise 
instructions on this matter and did not want to interfere in any way with the efforts of the parties 
to this dispute to reach a resolution of this matter. Without any prejudice to its position on this 
issue, Russia wished to express its concern about the unprecedented uncertainties faced by the parties to this dispute and the systemic implications that could potentially affect other Members. 
Russia expressed its hope that the parties would find a constructive solution and stood ready to 
engage in any multilateral efforts should that be necessary to bring more clarity to the applicable rules and procedures. 
7.16.  The representative of the United States said that his country wished to address a few of the 
comments made in Mexico's statement. Mexico asserted that there had been no consultations. 
However, there was no requirement to request consultations under Article 4 of the DSU as a condition for requesting the establishment of a compliance panel pursuant to Article 21.5 of the 
DSU, a point that the Appellate Body had made in  two reports, one of which had involved Mexico 
as a party.
5 Consultations were not referred to in Article 21.5 of the DSU, and the parties had 
already consulted on the initial matter giving rise to the situation under Article 21.5. Indeed, the 
United States could not see how Article 4 of the DSU could apply to an instance in which it was the 
Member concerned who was requesting a compliance panel to confirm that Member's compliance. Accordingly, any objection to the US panel requ est based on the failure to request Article 4 
consultations could not prevent the establishment of a panel. That said, the United States had 
discussed the recent rule with Mexico on a number of occasions now, including under the 
Understanding between the United States and Mexico Regarding Procedures under Articles 21 and 22 of the DSU. The United States, of course, st ood ready to consult further with Mexico on this 
matter as long as those consultations did not cause any delay in the compliance panel 
proceedings. Finally, the United States would no te that this was consistent with the approach 
agreed under that same Understanding, which had specified that Mexico was not required to hold 
consultations with the United States prior to requesting the establishment of an Article 21.5 panel. 
Mexico had also asserted that the rule discriminated against Mexican tuna. To be clear, most Mexican tuna was not eligible for the "dolphin-safe" label because of the manner in which most Mexican vessels had chosen to fish for tuna. The fleets of other nations had abandoned the 
practice, but those Mexican vessels had chosen to employ a method of fishing, setting on dolphins, 
that was recognized to pose a particular risk to dolphins. It involved deliberately chasing dolphins and capturing them. In so doing, it may result in dolphins being killed or seriously injured, 
separating dolphin calves from their mothers, reducing reproduction rates, and other harms. 
Simply put, tuna caught using this damaging fish ing method was clearly not "dolphin safe", and it 
would be misleading to consumers to claim that it was. As had been mentioned, in recognition of 
the harms posed to dolphins from this fishing method, other countries, including the United States, 
had chosen not to use this fishing method. There was no finding in the DSB's recommendations or rulings that required the United States to provide access to the dolphin safe label for tuna products produced from setting on dolphins. Consequent ly, tuna produced from setting on dolphins 
remained ineligible for the dolphin safe label. The United States was disappointed, but perhaps not 
surprised, that Mexico had decided to object to the establishment of a panel at the present meeting. It was in both parties' interest, in order to reach a final resolution of this dispute, to 
move efficiently to resolve the fundamental issue of compliance. So it was ironic to hear concerns 
about delay when Mexico at this meeting was objecting to the establishment of a panel, thereby delaying the compliance proceeding. In light of Mexi co's action, the United States wished to inform 
Members that the United States would request that the DSB Chair convene a special DSB meeting 
in order to consider the US compliance panel request for the second time. 
7.17.  The representative of Mexico said that  his country thanked those delegations who had 
expressed an interest in this matter and had shared Mexico's concern regarding the proper 
sequencing between the Article 22.6 and Articl e 21.5 proceedings. With regard to the US 
statement, Mexico wished to reiterate that under Article 21.5 of the DSU consultations were required before one could ask for a compliance panel. It was the US practice to hold consultations 
under the Article 21.5 procedure. This only conf irmed the requirement which had not been met in 
this case. The interpretation of the Sequencing Agreement between Mexico and the United States 
                                               
5 See "Mexico – HFCS" (Article 21.5) (AB), paragraph 65; "US – Continued Suspension" (AB), 
paragraph 340. WT/DSB/M/377 
 
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  was clear and left no room for any doubt. While Mexico did not have an obligation under that 
Agreement to request consultations, this was not the case with the United States in the situation at hand. Regarding the US arguments that many different harms were being caused to dolphins, 
he said that this issue had been thoroughly di scussed before the Panel and the Appellate Body, not 
just once, but on several occasions, and those ar guments had not prevailed. Finally, Mexico had 
heard that the United States was disappointed with Mexico's attitude. He noted that Mexico was the complainant in this lengthy dispute with the United States. If one looked at the Agenda of the 
present meeting, out of the six sub-items under item 1, five concerned US non-compliance. He 
recalled that the Tuna dispute had been initiated in 2008. At the present meeting, it had been mentioned that there should be no delays. This was what Mexico had hoped for eight years ago. The DSU called for prompt compliance and the elim ination of the measure, and Mexico expected 
this to be the best solution in these proceedings. 
7.18.  The representative of the United States said that his country wished to take the floor again 
to comment in response to Mexico's last statemen t. Contrary to Mexico's suggestion, the Panel and 
the Appellate Body had not found that setting on dolphins was not harmful. The United States 
would challenge Mexico to identify such a finding in any Report in this dispute. The United States would also question the link Mexico was apparently attempting to make between US compliance in 
this dispute and other Agenda items. But as it had explained, the United States had addressed and 
had complied with the DSB's rulings and recommendations in this dispute. 
7.19.  The DSB took note of the statements and agreed to revert to this matter. 
8  PROPOSED NOMINATIONS FOR THE INDICATIVE LIST OF GOVERNMENTAL AND 
NON-GOVERNMENTAL PANELISTS 
8.1.  The Chairman drew attention to document WT/DSB/W/566, which contained two additional 
names proposed by the Philippines and Qatar for inclusion on the Indicative List of Governmental 
and Non-Governmental Panelists, in accordance with Article 8.4 of the DSU. He proposed that the 
DSB approve the names contained in document WT/DSB/W/566. 
8.2.  The DSB so agreed. 
9  APPOINTMENT/REAPPOINTMENT OF APPELLATE BODY MEMBERS 
A.  Statement by the Chairman 9.1.  The Chairman, speaking under "Other Busi ness", said that he wished to make a brief 
statement regarding the 2016 selection process fo r the appointment of a new Appellate Body 
member and the process for the possible reappointment of one Appellate Body member. As 
Members were aware, on 7 and 8 April 2016, the Selection Committee had interviewed the seven 
candidates proposed for the vacant position in the Appellate Body. On 20 April 2016, the Selection 
Committee had started its consultations with interested delegations who had expressed their wish 
to provide views on the candidates. The Selection Committee would resume its consultations on Monday 25 April 2016. Delegations wishing to meet with the Selection Committee were invited to 
contact the Secretariat, Council/TNC Division, to make an appointment. Alternatively, delegations 
may send comments in writing to the Chair of the DSB, in care of the Council/TNC Division, by no later than 25 April 2016 close of business. He strongly encouraged Members to indicate their positive preferences on the candidates during the consultations or in their written comments 
should they decide to proceed that way. As agreed by the DSB in January 2016, following the 
consultations with delegations, the Selection Committee would make a recommendation by no later than 12 May 2016, which would be sent by fax to delegations in order that it may be 
considered by the DSB at its meeting on 23 May 2016. Members were also aware that he had been 
consulting informally with interested delegati ons on the issue of possible reappointment of 
Mr. Seung Wha Chang for a second four-year term beginning on 1 June 2016. At the present 
meeting, he wished to report that, in light of his consultations, it was his intention to precisely 
follow the approach that had been agreed and had been taken by the previous DSB Chairman, 
A m b a s s a d o r  N e p l e ,  i n  N o v e m b e r  2 0 1 5 .  I n  t h a t  r e g a r d ,  h e  s a i d  t h a t  h e  w o u l d  h o s t  a n  i n f o r m a l  meeting with Mr. Chang and invited any interested  delegations who would wish to participate in 
that meeting to contact him directly or via the Secretariat by close of business on 28 April 2016. If 
any delegation intended to pose questions to Mr . Chang at that meeting, they should indicate WT/DSB/M/377 
 
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  topics that they wished to raise by the same da te. This informal meeting would take place on 
10 May 2016 at 3 pm in room S1. It was open to Ambassadors plus one. During that meeting, the ground rules established for the 2015 reappointment process would be followed. The ground rules were reflected in the report made by the pr evious DSB Chairman at the DSB meeting on 
25 November 2015 (WT/DSB/M/370). He said that it would be his intention to place the issue of 
possible reappointment of one Appellate Body member on the Agenda of the 23 May 2016 DSB 
meeting. He hoped that this was agreeable to all delegations. 
9.2.  The DSB took note of the statement. 
10  THE DISPUTE SETTLEMENT WORKLOAD 
A.  Statement by the Chairman 10.1.  The Chairman, speaking under "Other Business", said that he wished to provide information 
about the Appellate Body's workload, the number of  disputes before panels, in the panel queue, 
and at the panel composition stage, and the abilit y of the Secretariat to meet expected demand 
over the coming period. On appeals, the Appellate  Body was currently dealing with three appeals.6 
In addition, one panel report had been recently circulated7 and two more panel reports were 
expected to be circulated in the next three months, all three of which may also be appealed.8 
These would be followed soon by the report of the Panel in the complex compliance proceedings in 
the "EC and Certain Member States – Large Civil Aircraft" (Airbus) dispute, which had been issued 
to the parties in March and was expected to be circulated to Members by early September. Given the limited number of staff available in the Appella te Body Secretariat, as of the second half 
of 2016 there was likely to be a waiting period until all these appeals could be staffed and 
Appellate Body members could turn to dealing wi th them. With regard to panels/arbitrations, 
currently, there were 19 active panels (including one panel under Article 21.5 of the DSU) that had not yet issued a final report to the parties. He noted that he was counting multiple disputes that 
were being considered simultaneously by the same  panel as one. For example, the "Australia – 
Tobacco Plain Packaging" panels, which in fact comprised four active disputes, was counted as a single panel in his report. In addition, he said that he had excluded suspended panels. As of the 
present day, there were two composed panels awaiting staff to assist them
9, both of which had 
been composed after 31 October 2015 when the Director-General had undertaken to staff all 
panels in the queue at that time. Currently, there were four panels at the composition stage. In addition, one matter has been referred to arbitration under Article 22.6 of the DSU. 
10.2.  The DSB took note of the statement. 
__________  
                                               
6 DS456 "India – Solar Cells"; DS464 "US – Washing Machines"; and DS461 "Colombia – Textiles". 
7 DS473 "EU – Biodiesel". 
8 DS475 "Russia – Pigs"; DS485 "Russia – Tariff Treatment". 
9 DS490/DS496 "Indonesia – Iron or Steel Products "; and DS491 "US – Coated Paper" (Indonesia).