RESTRICTED  
  
WT/DSB/M/346  
 
28 August 2014  
(14-4944)  Page: 1/25  
Dispute Settlement Body 
18 June 2014    
 
 MINUTES OF MEETING 
HELD IN THE CENTRE WILLIAM RAPPARD 
ON 18 JUNE 2014 
Chairman: Mr. Fernando De Mateo (Mexico) 
Table of Contents 
1   SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY 
THE DSB ....................................................................................................................... .... 2 
A.  United States – Section 211 Omnibus Appropriations Act of 1998: Status report by 
the United States .............................................................................................................. 2  
B.  United States – Anti-dumping measur es on certain hot-rolled steel products 
from Japan: Status report by the United  States ..................................................................... 7  
C.  United States – Section 110(5) of the US Copyright Act: Status report by 
the United States .............................................................................................................. 7  
D.  European Communities – Measures affect ing the approval and marketing of biotech 
products: Status report by  the European  Union ..................................................................... 8  
E.  Thailand – Customs and fiscal measures on cigarettes from the Philippines: Status 
report by Thailand ............................................................................................................  8 
F.  United States – Anti-dumping measures on certain shrimp from Viet Nam: Status 
report by the Un ited States ................................................................................................ 9  
2   UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 
2000: IMPLEMENTATION OF THE RECOMME NDATIONS ADOPTED BY THE DSB .............. 10  
A.  Statements by the Eu ropean Union and Japan ................................................................. 10 
3   CHINA – CERTAIN MEASURES AFFECT ING ELECTRONIC PAYMENT SERVICES ........... 11  
A.  Statement by th e United States .................................................................................... 11 
4   UNITED STATES – MEASURES AFFECTING THE CROSS-BORDER SUPPLY OF 
GAMBLING AND BETTI NG SERVICES .............................................................................. 12  
A.  Statement by Antigua and Barbuda regarding the implementation of the 
recommendations and ruling s adopted by the DSB ............................................................... 12 
5   EUROPEAN UNION – COST ADJUSTMENT METHODOLOGIES AND CERTAIN 
ANTI-DUMPING MEASURES ON IMPORTS FROM RUSSIA ................................................ 16  
A.  Request for the establishment of a panel by the Russi an Federa tion ................................... 16 
6   CHINA – ANTI-DUMPING AND COUNTERVAILING DUTIES ON CERTAIN 
AUTOMOBILES FROM THE UNITED STATES .................................................................... 16  
A.  Report of  the Panel...................................................................................................... 16 WT/DSB/M/346 
 
- 2 - 
 
  7   EUROPEAN COMMUNITIES – MEAS URES PROHIBITING THE IMPORTATION 
AND MARKETING OF SEAL PRODUCTS ............................................................................ 18  
A.  Report of the Appellate Bo dy and Report of the Panel ....................................................... 18 
B.  Report of the Appellate Bo dy and Report of the Panel ....................................................... 18 
8   CANADA – CERTAIN MEASURES AFFECTING THE RENEWABLE ENERGY 
GENERATION SECTOR/CANADA – MEASURES RELATING TO THE FEED-IN TARIFF 
PROGRAM....................................................................................................................... 23 
A.  Statements by Japan and the Europe an Union ................................................................. 23 
9   STATEMENT BY THE CHAIRMAN REGA RDING THE AB SELECTION PROCESS .............. 24  
 
 1  SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB 
A.  United States – Section 211 Omnibus Appropriations Act of 1998: Status report by 
the United States (WT/DS176/11/Add.138)  
B.  United States – Anti-dumping measures on certain hot-rolled steel products from Japan: Status 
report by the United States (WT/DS184/15/Add.138)  
C.  United States – Section 110(5) of the US Copyright Act: Status report by the United States 
(WT/DS160/24/Add.113)  D.  European Communities – Measures affecting the approval and marketing of biotech products: 
Status report by the European Union (WT/DS291/37/Add.76) 
 E.  Thailand – Customs and fiscal measures on cigarettes from the Philippines: Status report 
by Thailand (WT/DS371/15/Add.25) 
 F .   U n i t e d  S t a t e s  –  A n t i - d u m p i n g  m e a s u r e s  o n  c e r t a i n  s h r i m p  f r o m  V i e t  N a m :  S t a t u s  r e p o r t  b y  
the United States (WT/DS404/11/Add.24) 
  1.1.  The Chairman noted that there were six sub- items under this Agenda item concerning status 
reports submitted by delegations pursuant to Article 21.6 of the DSU. He recalled that Article 21.6 
required that, "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". The Chairm an 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. In the context of this Agenda item, he also wished to 
remind delegations that, as provided for in Rule 27 of the Rules of Procedure for DSB meetings, "Representatives should make every effort to avoid the repetition of a full debate at each meeting 
on any issue that has already been fully debated in the past and on which there appears to have 
been no change in Members' positions already on record". 
A.  United States – Section 211 Omnibus Appr opriations Act of 1998: Status report by 
the United States (WT/DS176/11/Add.138) 
1.2.  The Chairman drew attention to docu ment WT/DS176/11/Add.138, which contained the 
status report by the United States on progress in the implementation of the DSB's 
recommendations in the case concerning US Section 211 Omnibus Appropriations Act of 1998. 
1.3.  The representative of the United States said  that his country had provided a status report in 
this dispute on 5 June 2014, in accordance with Article 21.6 of the DSU. At least six bills had been 
introduced in the current Congress in relation to the DSB's recommendations and rulings in this dispute. Of these bills, at least four would repeal Section 211.  This included: (1) H.R. 214, which 
had been referred to the House Subcommittee on Trade; (2) H.R. 872, which had been referred to 
the House Subcommittee on Immigration and Border Security, and had 16 co-sponsors; (3) H.R. 873, which had been referred to the House Subcommittee on Immigration and Border WT/DSB/M/346 
 
- 3 - 
 
  Security, and had 17 co-sponsors; and (4) H.R. 1917, which had been referred to the House 
Subcommittee on Courts, Intellectual Property and the Internet. At least two of these bills would modify Section 211. This included: (1) H.R. 778, which had been referred to the House Subcommittee on Western Hemisphere, and had 19 co-sponsors; and (2) S. 647, which had been 
referred to the Senate Committee on the Judiciary and had seven co-sponsors. The US 
Administration would continue to work on solutions to implement the DSB's recommendations and rulings.  
1.4.  The representative of the European Union sa id that the EU thanked the United States for its 
most recent status report and the statement made  at the present meeting. The EU hoped that the 
US authorities would resolve this matter very soon. 
1.5.  The representative of Cuba said that Articl e 31, Section 3 (Interpretation of Treaties), of the 
Vienna Convention on the Law of Treaties stipulated that "[a] treaty shall be interpreted in good 
faith in accordance with the ordinary meaning to  be given to the terms of the treaty in their 
context and in the light of its object and purp ose". The purpose of the WTO dispute settlement 
system was clearly set forth in Article 3.2 of the DSU, the first sentence stated that "[t]he dispute 
settlement system of the WTO is a central element in providing security and predictability to the 
multilateral trading system". Article 3.3 of th e DSU clearly stated the objective of prompt 
compliance: "[t]he prompt settlement of situations in which a Member considers that any benefits 
accruing to it directly or indirectly under the covered agreements are being impaired by measures taken by another Member is essential to the effective functioning of the WTO and the maintenance of a proper balance between the rights and obligations of Members". However, February 2014 
marked the 12th year of the US failure to comply with the DSB's recommendations and rulings in 
this dispute. Section 211, passed by the US Congress to invalidate the intellectual property rights of Cuban right holders on US territory remained in force. Cuba, once again, reiterated that the 
current US laws governing the economic, commercial and financial blockade against Cuba were not 
enough to have an impact in the area of inte llectual property rights and hence Section 211 was 
adopted to legally underpin the theft of recogniz ed Cuban trademarks such as the brand name 
"Havana Club". Furthermore, the last sentence of Article 21.6 of the DSU stipulated that the 
Member concerned had an obligation to provide a status report in writing of its progress in the i m p l e m e n t a t i o n  o f  t h e  r e c o m m e n d a t i o n s  o r  r u l i n g s .  H o w e v e r ,  t h e  m o s t  r e c e n t  U S  s t a t u s  r e p o rt circulated on 5 June constituted an outright violation of Article 21.6 of the DSU. The lack of 
regulations in the DSU to ensure effective compli ance with the DSB's recommendations and rulings 
provided an incentive for the United States to continue to ignore the DSB's decisions. The adverse effects of unresolved disputes were not limited to the parties involved. In failing to meet its 
obligations, the United States was undermining a system based on rules, procedures and practices 
developed by all and for all. Reacting with indifference to long-standing violations such as these had serious systemic implications for the functioning and credibility of the dispute settlement 
system. Once again, Cuba urged the United States to report on progress and to take the 
appropriate steps to put an end to this dispute. 
1.6.  The representative of the Russian Federation  said that her country believed that the dispute 
settlement system provided stability to the multil ateral trading system. Russia urged the parties to 
this dispute to find a solution through all the instruments available under the WTO Agreement. 
Russia believed that this situation of non-compliance undermined Members' confidence and the credibility of the DSB and the WTO.  
1.7.  The representative of India said that his country thanked the United States for its status 
report and its statement made at the present meet ing. India noted that the United States had not 
reported any progress. India remained concerned about this situation of prolonged non-compliance 
in this dispute, as this undermined the credibility of the WTO and the confidence that Members 
reposed in the dispute settlement system. India urged the United States to report full compliance in this dispute without any further delay. 
1.8.  The representative of Mexico said that his country urged the parties to the dispute to take 
the necessary steps in order to comply with the DSB's recommendations and rulings, in 
accordance with Article 21.1 of the DSU. Mexico thanked the United States for its status report. In Mexico's view, it would be useful to have more information regarding the legislative texts referred 
to by the United States.  WT/DSB/M/346 
 
- 4 - 
 
  1.9.  The representative of Angola said that his country thanked the United States for its status 
report regarding Section 211. Angola noted that this matter had been discussed for many years 
without any resolution. As a result, Cuba continued to be adversely affected by the lack of progress in this dispute. Angola believed that the credibility of the dispute settlement system and 
the multilateral trading system depended on its ability to promptly resolve disputes, while 
preserving Members' rights. Failure to do so would undermine the system and affect Members, in particular developing-country Members. All Members had the same rights and were, therefore, 
required not only to comply with their obligati ons, but also with decisions taken by the WTO 
bodies. In Angola's view, it was regrettable that the DSB, which was one of the main achievements of the multilateral trading system, continued to be undermined because of the measures taken by one Member. In that regard, Angola reiterated its pr eviously stated position with regard to Cuba's 
claims and requested the United States to comply  with the DSB's recommendations and rulings.  
1.10.  The representative of Zimbabwe said that his country took note of the US status report. 
Zimbabwe thanked Cuba for its statement made at the present meeting. Zimbabwe noted that the 
DSB was meeting again, as it did every month, to consider the non-compliance by the 
United States with the DSB's rulings and recommendations in this dispute. The continued US failure to comply seriously undermined the integrity of the DSB as well as the efficacy and 
effectiveness of its rulings. For a number of years now, Zimbabwe, along with other WTO 
Members, had been calling on the United States to stop violating its WTO rules and to meet its 
obligations. Zimbabwe, therefore, strongly supported Cuba and urged the United States to comply with the relevant DSB's rulings and recommendations. 
1.11.  The representative of Bolivarian Republic of Venezuela said that her country supported the 
statement made by Cuba at the present meeting. Venezuela reiterated its concern about the US 
status report which, in addition to being monotonous and repetitive, did not contain any new 
information on progress in this dispute. In Venezuela's view, the prolonged non-compliance by the 
United States showed the US intention to continue to maintain the economic blockade against Cuba, a developing-country Member. Venezuela urged the United States to put an end to this 
flagrant violation of WTO rules by repealing Section 211. Venezuela found this situation of non-
compliance to be unacceptable since it undermined the interests of a developing-country Member. It also undermined the credibility of the dispute se ttlement system, the multilateral trading system 
and the DSB's ability to resolve disputes.   
1.12.  The representative of Argentina said that his country thanked the United States for its 
status report and the statement made at the present meeting. However, since no substantive 
information had been provided, Argentina had no choice but to repeat what it had been saying for 
some time. This lack of progress was inconsistent with the principle of prompt and effective 
compliance stipulated in the DSU provisions, in particular since the interests of a developing-country Member were concerned. Therefore, Argent ina, once again, joined the requests by Cuba 
and the previous speakers and called on both parties to the dispute, in particular the 
United States, to take the necessary steps to finally remove this item from the DSB's Agenda. 
1.13.  The representative of Jamaica said that her country noted that the circumstances of this 
dispute had not changed and that no progress ha d been reported since the previous DSB meeting 
Jamaica wished to refer delegations to its statement made at the 23 May 2014 DSB meeting. 
Jamaica remained concerned about the lack of progress in this dispute since the adoption of the DSB's recommendations and rulings, which had take n place more than 12 years ago. Once again, 
Jamaica, along with other Members, called for a prompt, just and lasting solution to this dispute.  
1.14.  The representative of Uruguay said that his country thanked the United States for its status 
report and the statement made at the present meeting. In Uruguay's view, the report was more 
detailed than usual. However, there was no chan ge with regard to the content of the report. 
Uruguay urged the United States to resolve this matter so that the item could be removed from the DSB's Agenda. 
1.15.  The representative of China said that his country thanked the United States for its status 
report and the statement made at the present m eeting. China noted that the United States had 
not reported any substantive progress. The prolonged situation of non-compliance in this dispute was highly incompatible with the principle of prompt compliance stipulated in the DSU, in 
particular since the interests of a developing-c ountry Member were a ffected. China urged the 
United States to implement the DSB's rulings and recommendations without any further delay.  WT/DSB/M/346 
 
- 5 - 
 
  1.16.  The representative of Nicaragua recalled that the objective of the WTO was trade 
liberalization in order to benefit all Members,  in particular developing and least-developed 
countries. It was, therefore, not acceptable that this dispute, which had been on the DSB's Agenda for more than ten years, remained unresolved, thereby adversely affecting the economic and 
commercial interests of Cuba, a country with a small economy. Nicaragua, once again, thanked the 
United States for its status report and regretted that the report did not contain any new information. Such lack of content remained unchanged and reflected the US lack of political will to 
resolve the matter. Non-compliance in this dispute undermined the efficiency/credibility of the DSB 
and the multilateral trading system. It could set a negative precedent for other Members, in particular developing-country Members. Nicaragu a failed to understand how a developed-country 
Member could request other Members to comply with their obligations and, at the same time, fail 
to comply with its own obligations. Nica ragua supported Cuba's statement and urged 
the United States to meet its obligations by bringing the measure at issue into compliance with the DSB's recommendations and to find a mutually satisfactory solution to this dispute. 
1.17.  The representative of Ecuador said that his country supported the statement made by Cuba. 
Ecuador, once again, recalled that Article 21 of the DSU expressly referred to prompt compliance 
with the DSB's recommendations and rulings, in particular since the interests of a developing-
country Member were affected. In the dispute on "United States – Measures Relating to Zeroing 
and Sunset Reviews: Recourse to Article 21.5 of the DSU by Japan", the Appellate Body stated, "The time-frame within which comp liance must be effected is addressed in Article 21 of the DSU. 
Article 21.1 of the DSU provides that '[p]rompt co mpliance with recommendations or rulings of the 
DSB is essential in order to ensure effective resolution of disputes to the benefit of all Members'. 
The reference to 'essential' underscores the importance of the obligation to comply with the DSB's recommendations and rulings. The reference to 'prompt' compliance emphasizes the need for the 
timely implementation of DSB recommendations and rulings. The timing of implementation is also 
addressed in Article 21.3 of the DSU … Accordin g to this provision, implementation of the 
recommendations and rulings of the DSB must be do ne 'immediately', unless it is 'impracticable' to 
do so. In other words, the requirement is immediate compliance. However, Article 21.3 of the DSU 
recognizes that immediate compliance may not always be practicable, in which case it foresees the possibility of the implementing Member being given a reasonable period of time to comply … the reasonable period of time is a limited exemption from the obligation to comply immediately. [In 
short] … 'the obligation to comply with the recommendations and rulings of the DSB has to be 
fulfilled by the end of the reasonable period of time at the latest'. Indeed, any conduct of the 
implementing Member that was found to be WTO-inconsistent by the DSB must cease by the end 
o f  t h e  r e a s o n a b l e  p e r i o d  o f  t i m e .  O t h e r w i s e ,  t h a t  M e m b e r  w o u l d  c o n t i n u e  t o  a c t  i n  a  W T O -
inconsistent manner after the end of the reasonable period of time, contrary to Articles 3.7, 19.1, 21.1, 21.3 and 21.5 of the DSU".  
1.18.  Ecuador noted that this matter of "prompt compliance" or "effective compliance" was a 
long-standing concern for many developing-country Members. It was a matter that transcended and went well beyond other strictly procedural concerns. In light of the discussions in previous years, in the period between June and November 2012, a large group of developing countries had 
submitted proposals to the DSB Special Session, together with relevant revised legal texts which 
concerned, inter alia , the issue of "effective compliance". Ecuador believed that these were 
essential for the smooth functioning and credibilit y of the dispute settlement system. The process 
of "clarifying" and "improving" the DSU should eventually produce a concrete outcome in which 
substantive issues were necessarily addressed, in particular those that affected the interests of developing-country Members. 
1.19.  The representative of El Salvador said that her country thanked the United States for its 
status report. Like the previous speakers, El Salvador was concerned about the lack of compliance 
in this dispute. This situation of non-compliance adversely affected the interests of a developing-country Member with a small and vulnerable economy. El Salvador urged the parties to this 
dispute to find a solution to this  dispute as quickly as possible.  
1.20.  The representative of Brazil said that, like the previous speakers, his country remained 
concerned about the lack of real progress in this dispute. Brazil called on the United States to bring 
its measures into conformity with WTO rules as soon as possible. WT/DSB/M/346 
 
- 6 - 
 
  1.21.  The representative of the Plurinational State of Bolivia said that, as his country had stated 
for more than 12 years, the US status report did not report on any progress towards compliance 
with the DSB's recommendations and rulings. Bolivia, therefore, reiterated its concern about the systemic implications of the US failure to comply with the DSB's recommendations and rulings in 
this dispute, in particular since it concerned the interests of a developing-country Member. Bolivia 
urged the United States to comply with the DSB's recommendations and rulings and to remove the restrictions imposed under Section 211. Bolivia supported the concerns raised by Cuba at the 
present meeting.  
1.22.  The representative of Dominica, speaking  on behalf of the OECS countries, thanked the 
United States for its status report and Cuba for its statement. Like previous speakers, the OECS 
countries supported Cuba in this matter. The OECS countries remained concerned about the lack 
of progress and the continued US failure to comply with the DSB's recommendations and rulings. 
This was of particular concern because non-compliance in this dispute had an adverse effect on the economic interests of a small, developing-country Member. Non-compliance in this dispute also 
undermined the dispute settlement mechanism, which was a key pillar of the WTO and the 
multilateral trading system. Therefore, the OECS countries urged the United States to promptly 
comply with the DSB's rulings and recommendations and for the parties to find a solution to end 
this dispute.  
1.23.  The representative of Viet Nam said that his country thanked the United States for its status 
report. Viet Nam noted that, once again, the stat us report did not contain any progress regarding 
the implementation of the DSB's recommendations. Viet Nam urged the United States to comply, 
without any further delay, with the DSB's recommendations and rulings so as to preserve the 
multilateral trading disciplines and to benefit Cuba, a developing-country Member. 
1.24.  The representative of South Africa said th at her country wished to refer to its previous 
statements stressing its systemic concerns that this non-compliance with the DSB's 
recommendations and rulings undermined the integrity of the DSB, an important enforcement pillar of the WTO. South Africa was also conc erned that non-compliance perpetuated significant 
negative economic consequences for a particular developing-country Member and had 
ramifications for access to the dispute settlement system by the lesser-resourced Members. South Africa, therefore, urged the United States to bring its legislation into compliance with the 
DSB's rulings and recommendations. 
1.25.  The representative of the United States said that his country regretted that some Members 
had suggested that the US Administration was no t providing sufficient detail. Members, including 
Mexico, had asked the United States to provide more information and the United States had noted, 
in its statement made at the present meeting, six bills that had been introduced in the current 
Congress. Some of these bills would modify Section 211 while others would repeal it outright. The United States noted that all of these bills were publicly available from the time of introduction. In 
fact, it was possible to track the progress of any particular bill through the legislative process using 
available online tools. Therefore, any delegation interested in reviewing the specifics of these bills may do so by using the public material made available by the US Congress online. In response to the comments about systemic concerns about the dispute settlement system, the facts simply did 
not support Members assertions or justify such systemic concerns. As it had explained on several 
occasions at the DSB, and thus, would not repeat again at the present meeting, the United States did not believe that those concerns were well-founded. 
1.26.  The representative of Cuba said that in response to the statement made by the 
United States, Cuba wished to reiterate that the DSU required that status reports on progress in 
the implementation of the DSB's recommendations and rulings must be submitted in writing. 
Members should not be referred to seek new information on the alleged progress in the 
implementation of the DSB's recommendations and rulings on the Internet. On previous occasions, the United States had already mentioned the existence of certain bills before Congress or the Senate. However, in the course of the 12 years of non-compliance, neither of the two US 
legislative entities had been able to adopt even one bill that would provide a solution to this 
dispute. It seemed that the United States had serious institutional limitations. The US status 
reports submitted for more than 12 years demonstrated that none of the bills were adopted. The 
position of the US Congress regarding the bills concerning Section 211 had been maintained 
invariably over the years. Some of the bills we re favourable to the repeal of Section 211 and 
others were not. However, none of the bills had moved forward or made progress. They had been WT/DSB/M/346 
 
- 7 - 
 
  sent back to different committees, but no discussion or vote had taken place thereon. This clearly 
indicated that this was not an issue of priority for Congress or the US Administration. Regarding the second comment made by the United States that the systemic concerns lacked any merit, 
Cuba noted that providing security and predictability to the multilateral system, as set out in the 
DSU, had systemic implications. Thus, the US failure to promptly comply with the DSB's 
recommendations and rulings had negative systemic implications. Cuba questioned how much more time was needed for compliance and noted that 12 years had already passed with no 
compliance in this dispute. Cuba underlined that the DSB's recommendations and rulings could not 
be complied with on a selective and discriminatory manner. Members had to comply with all recommendations and rulings. The United States, or any other Member, could not pick and choose how to comply with the DSB recommendations and rulings. Cuba asked the United States to put 
forward other arguments in order to demonstrate that there were no systemic implications in this 
non-compliance situation.  
1.27.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. B.  United States – Anti-dumping measur es on certain hot-rolled steel products 
from Japan: Status report by the United States (WT/DS184/15/Add.138) 
1.28.  The Chairman drew attention to document WT/DS184/15/Add.138, which contained the 
status report by the United States on pr ogress in the implementation of the DSB's 
recommendations in the case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
1.29.  The representative of the United States said that his country had provided a status report in 
this dispute on 5 June 2014, 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. 
1.30.  The representative of Japan said that his country thanked the United States for its 
statement and status report submitted on 5 June 2014. Japan referred to its previous statements 
in which it had indicated its wish that this issue should be resolved as soon as possible. 
1.31.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
C.  United States – Section 110(5) of the US Copyright Act: Status report by 
the United States (WT/DS160/24/Add.113) 
1.32.  The Chairman drew attention to document WT/DS160/24/Add.113, which contained the 
status report by the United States on pr ogress in the implementation of the DSB's 
recommendations in the case concerning Section 110(5) of the US Copyright Act. 
1.33.  The representative of the United States said that his country had provided a status report in 
this dispute on 5 June 2014, 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. 
1.34.  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 pr esent meeting. The EU referred to its previous 
statements on its wish to resolve this case as soon as possible. 
1.35.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. WT/DSB/M/346 
 
- 8 - 
 
  D.  European Communities – Measures affect ing the approval and marketing of biotech 
products: Status report by the Eu ropean Union (WT/DS291/37/Add.76) 
1.36.  The Chairman drew attention to document WT/DS291/37/Add.76, 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. 
1.37.  The representative of the European Union said that, in recent DSB meetings, the EU had 
already reported on authorization decisions taken up to May 2014. The EU Standing Committee on 
the food chain and animal health of 24 April 2014 ha d voted on a draft decision for authorization of 
a maize1, as well as on a draft decision for the authorization of a soya2, both for food and feed 
uses. The Committee had rendered no opinion on ei ther of the draft decisions. Three more draft 
decisions concerning authorizations of other soy products3 had been presented for voting at the 
Standing Committee of 23 May 2014, which had rendered no opinion. The five draft decisions had been presented to the Appeal Committee for voting on 10 June 2014, which had rendered no 
opinion. The European Commission would initiate the last stage of the procedure. As had been 
stated many times before, the EU recalled that the EU approval system was not covered by the DSB's recommendations and rulings. The GMO regulatory regime was working normally as 
evidenced by the approval decisions and other acti ons towards approval decisions just mentioned. 
The details on the relevant products were set out in the EU's written statement. 
1.38.  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 it had explained at past DSB meetings, 
the United States had substantial concerns regarding EU measures affecting the approval of 
biotech products. The United States noted that it was already half way through 2014, and the EU had not approved a single new biotech product yet this year. This was despite the fact that the 
EU's own food safety authority had issued positive safety assessments for approximately ten 
pending products. Furthermore, at least six of th ese biotech products had been considered by the 
relevant EU regulatory committee and then subseq uently by an EU appeals committee. As the EU 
had described at the present meeting, those actions were ongoing. However, as the EU had also 
noted, due to opposition from certain EU member States, these EU committees had failed to make decisions. Under the EU's own legislation, the European Commission was required to act without 
delay to approve biotech products in the event that votes in the regulatory committee and the 
appeals committee did not result in a decision. But, thus far, the EU Commission had failed to act. 
The United States urged the EU to address thes e outstanding biotech product applications. More 
generally, the United States urged the EU to take steps to address the fact that EU delays, as well 
as EU member State bans on products approved at the EU-level, were causing substantial 
restrictions on trade.  
1.39.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. E.  Thailand – Customs and fiscal measures  on cigarettes from the Philippines: Status 
report by Thailand (WT/DS371/15/Add.25) 
1.40.  The Chairman drew attention to document WT/DS371/15/Add.25, which contained the 
status report by Thailand on progress in the implementation of the DSB's recommendations in the 
case concerning Thailand's customs and fiscal measures on cigarettes from the Philippines. 
1.41.  The representative of Thailand said that, as indicated in its most recent status report, 
Thailand had no further actions outstanding to implement the DSB's recommendations and rulings 
in this dispute. In that regard, Thailand had nothing further to report to the DSB at the present meeting. Thailand, however, remained available to continue discussions with the Philippines on a 
bilateral basis on any other issues of concern to the Philippines. Thailand looked forward to 
positively continuing any further bilateral discussions with the Philippines in an amicable and satisfactory manner. 
                                               
1 T25 maize. 
2 MON87708. 
3 MON87705 soybean, 305423 soybean and BPS-CV127-9 soybean. WT/DSB/M/346 
 
- 9 - 
 
  1.42.  The representative of the Philippines said that his country thanked Thailand for its status 
report and its statement made at the present meet ing. The Philippines disagreed that Thailand had 
completed all steps necessary to achieve complia nce. The Philippines had consistently noted a 
number of outstanding issues in this dispute. Some concerned the WTO-inconsistency of 
compliance measures declared by Thailand; others  concerned Thai acts and omissions that undid 
declared compliance measures. This resulted in Thailand's failure to fully comply with the DSB's recommendations and rulings. For as long as this was the situation, in the Philippines' view, there 
w e r e  o n l y  t w o  o p t i o n s :  ( i )  t o  c o n t i n u e  s u r v e i l l a n c e  i n  t h e  D S B ;  o r  ( i i )  t o  r e v e r t  t o  d i s p u t e  
settlement proceedings. In hopes of avoiding a re turn to dispute settlement, the Philippines was 
working to complete its assessment of the information provided by Thailand concerning a ruling by the Thai Customs Board of Appeals regarding entries covered by the DSB's recommendations and 
rulings. As it had stated at the previous DSB meeting, based on its current understanding, the 
Philippines remained concerned that the BoA ruling was WTO-inconsistent on multiple grounds. Furthermore, the Philippines was assessing whether all bilateral avenues to resolving the other 
outstanding issues had been fully explored. Pend ing these assessments, the Philippines reserved 
all its rights under the DSU.  
1.43.  The representative of Thailand said that her country took note of the Philippines' comment 
that it was assessing Thailand's response regardin g particular shipments. Thailand looked forward 
to bilaterally discussing this and other aspects of the Philippines' concerns. 
1.44.  The DSB took note of the statements.  
F.  United States – Anti-dumping measures on certain shrimp from Viet Nam: Status 
report by the United States (WT/DS404/11/Add.24) 
1.45.  The Chairman drew attention to document WT/DS404/11/Add.24, 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. 
1.46.  The representative of the United States said that his country had provided a status report in 
this dispute on 5 June 2014, in accordance with Article 21.6 of the DSU. As it had noted at past 
DSB meetings, the US Department of Commerce had published a modification to its procedures in February 2012 in order to implement the DSB's re commendations and rulings regarding the use of 
"zeroing" in anti-dumping reviews. That modification addressed certain findings in this dispute. The 
United States would continue to consult with in terested parties as it worked to address the 
recommendations and rulings of the DSB.  
1.47.  The representative of Viet Nam said that his country thanked the United States for its status 
report and the statement made at the present m eeting. Viet Nam recalled that the reasonable 
period of time mutually agreed by the parties to this dispute had expired one year ago. However, the United States had not taken any action to recalculate and revoke the anti-dumping duty for 
the second and third administrative review, which was inconsistent with the DSB's 
recommendation. Viet Nam, once again, requested the United States to fully comply with the DSB's recommendations and rulings without any further delay so as to maintain the multilateral trading disciplines and to the benefit of Viet Nam, a developing-country Member. 
1.48.  The representative of Cuba said that her country, once again, noted that this situation of 
non-compliance affected a developing-country Member. Cuba, therefore, reiterated the importance 
of effective compliance, in particular since the interests and vital resources of a developing-country 
Member were involved. The US status report and the statement by Viet Nam showed that this was 
yet another situation of non-compliance and that no progress had been made. Cuba urged the United States to take necessary measures in order to comply with its WTO obligations.  
1.49.  The representative of the Bolivarian Repub lic of Venezuela said that her country supported 
the statement made by Viet Nam. Venezuela shar ed the concerns expressed by Cuba regarding 
the need for the United States to fully comply with the DSB's recommendations and rulings.  WT/DSB/M/346 
 
- 10 - 
 
  Venezuela, therefore, strongly urged the United St ates to take the necessary measures to finally 
resolve this dispute.   
1.50.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
2  UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: 
IMPLEMENTATION OF THE RECOMME NDATIONS ADOPTE D BY THE DSB 
A.  Statements 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 EU and Japan. He then invited the respective representatives to speak. 
2.2.  The representative of the European Union said that, once again, the EU requested that the 
United States stop transferring anti-dumping an d countervailing duties to the US industry. Every 
disbursement that still took place was clearly an act of non-compliance with the DSB's 
recommendations and rulings. The EU renewed its call to the United States to abide by its clear obligation under Article 21.6 of the DSU to submit status reports pertaining to this dispute. 
2.3.  The representative of Japan said that, since the distributions under the CDSOA had 
continued, Japan, once again, urged the United States to stop the illegal distributions in order to 
resolve this long-standing dispute. As stated in 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 India said that his country thanked the EU and Japan for regularly 
keeping this issue on the DSB's Agenda. India no ted that the United States continued the WTO-
inconsistent disbursements to its domestic industry. India agreed with the EU and Japan that the 
Byrd Amendment should continue to remain subj ect to the surveillance of the DSB until the 
United States ceased to administer it. Until such time this matter was resolved, the United States 
was under an obligation to provide status reports to the DSB. 
2.5.  The representative of Canada said that hi s country thanked the EU and Japan for keeping this 
item on the DSB's Agenda. Canada agreed with the EU, Japan and others that the Byrd 
Amendment remained subject to the surveillance of the DSB until the United States ceased to 
administer it. 
2.6.  The representative of Thailand said that his country thanked the EU and Japan for continuing 
to bring this item before the DSB. Thailand supported the previous speakers' statements and 
continued to urge the United States to cease the disbursements and fully implement the DSB's 
rulings and recommendations. 
2.7.  The representative of Brazil thanked the EU and Japan for keeping this item on the DSB's 
Agenda. As an original party to the dispute, Brazil considered that disbursements after the repeal 
of the Byrd Amendment were not in order. As it  had expressed in previous DSB meetings, Brazil 
was of the view that the United States was under obligation to submit status reports in this dispute 
until such time as no more disbursements were made pursuant to the Byrd Amendment. Only then 
would the issue be resolved within the meanin g of the DSU and would the United States be 
released from its obligation to provide status reports. 
2.8.  The representative of the United States said that, as his country had noted at previous DSB 
meetings, the President had signed the Deficit Reduction Act into law on 8 February 2006, which 
included a provision repealing the Continued Dumping and Subsidy Offset Act of 2000. Accordingly, the United States had taken al l actions necessary to implement the DSB's 
recommendations and rulings in these disputes. Fu rthermore, the United States recalled that 
Members, including the EU and Japan, had acknowledged during previous DSB meetings that the 2006 Deficit Reduction Act did not permit the distribution of duties collected on goods entered 
after 1 October 2007, which was more than six and a half years ago. The United States, therefore, 
did not understand the purpose for which the EU and Japan had inscribed this item on the Agenda of the present meeting. With respect to comments regarding further status reports in this matter, WT/DSB/M/346 
 
- 11 - 
 
  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 the United States had expressed at past DSB meetings, there 
was no obligation under the DSU to provide further status reports once a Member announced that 
it had implemented the DSB's recommendations and rulings. The United States had in the past noted that Members speaking under this item had followed the same approach in disputes where 
they had been the responding party and had not continued to provide status reports where the 
complaining party had disagreed over compliance. Indeed, despite its intervention at past DSB 
meetings, as well as at the present meeting, the United States was pleased to note that Canada 
had, through its actions in the FIT disputes (DS412/DS426), expressed the same systemic view as 
the United States. In the FIT disputes in which Canada was the responding party, it had taken the 
view that it was not required to provide a further status report or make an oral statement to the DSB concerning the issue of implementation once it had announced compliance. The United States 
agreed, and for the very same reason, the United States was not required to provide status 
reports in relation to this dispute in which the necessary action had been taken many years ago. 
2.9.  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. He then 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. The 
situation had not changed since the previous month or since the United States had first begun 
raising this matter at the DSB. In particular, China continued to maintain a ban on foreign 
suppliers of electronic payment services ("EPS") by imposing a licensing requirement on them while providing no procedures for them to obtain that license. As a result, China's own domestic 
champion remained the only EPS supplier that could operate in China's domestic market. China's 
measures could not be reconciled with the DSB's findings that China's WTO obligations included both market access and national treatment commitments concerning Mode 3 for EPS.
4 The 
United States took note of China's statements in prior DSB meetings that China was working on 
the necessary regulations to allow for the licensing of foreign EPS suppliers, an implicit 
acknowledgement by China that it still had steps to take to fulfil the market access and national treatment commitment that were set out in its Schedule. The United States had been engaging 
with China at many levels to seek the timely issuance of these regulations, but they had still not 
yet been issued nearly 11 months after the expiry of  the reasonable period of time in this dispute. 
As such, the United States continued to urge China to move forward with these regulations and to 
allow the licensing of foreign EPS suppliers in China, consistent with its WTO obligations.  
3.3.  The representative of China said that his co untry regretted that the United States had, once 
again, brought this matter before the DSB. China referred to its statements made under this 
Agenda item at previous DSB meetings. China had taken all necessary actions and had fully 
implemented the DSB's recommendations and rulings in this dispute. China had also further 
explained that the actions being sought by the United States were beyond the scope of China's compliance obligations. With respect to the regulation that the United States had mentioned, China 
reiterated that this matter was not relevant to the implementation of 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 representative of the United States said  that, as it had stated before in the DSB, the 
United States strongly disagreed with China's statement and assertion that it had complied in this 
dispute. The DSB's rulings and recommendations clearly stated that "China has made a commitment on market access concerning mode 3"
5 and that "China has made a commitment on 
                                               
4 "China – Certain Measures Affecting Electronic Payment Services", WT/DS413/R (adopted on 
31 August 2012), paras. 7.575, 7.678. 
5 Idem, at para. 7.575. WT/DSB/M/346 
 
- 12 - 
 
  national treatment concerning mode 3".6 Despite this clear language, China did not allow foreign 
EPS suppliers' access to the market under mode 3 due to a licensing restriction that set forth no criteria and no procedure under which to obtain the license. As a result, China Union Pay, the only domestic supplier, continued to operate while foreign EPS suppliers could not. China knew, as all 
did, that it had WTO commitments here. As the United States had said before, China had 
recognized that it must take action to provide access to foreign EPS suppliers through regulations. The United States urged China to move forward wi th these regulations and allow the licensing of 
foreign EPS suppliers in China consistent with China's WTO obligations.  
3.5.  The representative of China said that it was well established that the dispute settlement 
process focused on the consistency of specific, identified measures with the relevant provisions of 
the covered agreements. In this dispute, the Panel had rejected the US claims under Article XVI in 
respect of all but one of the measures identified by the United States. The measure that the Panel 
had found to be inconsistent with Article XVI:2(a) of the GATS was a measure that concerned the provision of certain services in Hong Kong and Macao. China had brought that measure into 
conformity with the DSB's recommendations and rulings. Having brought that measure into 
conformity with the DSB's recommendations and rulings, China had no further implementation obligations with respect of the Panel's market access findings. There were no other measures that 
were the subject of the DSB's recommendations and rulings under Article XVI of the GATS. The 
Panel's finding concerning the classification of the services at issue, and its identification of corresponding market access commitments, was merely a precursor to its evaluation of whether the measures identified by the United States were inconsistent with China's obligations under 
Article XVI. These findings had not given rise  to independent compliance obligations, as the 
United States appeared to suggest. A responding Member fully discharged its compliance obligations when it brought the specific measure into conformity with the covered agreements, as 
China had done in this dispute.  
3.6.  The DSB took note of the statements. 
4  UNITED STATES – MEASURES AFFECTING THE CROSS-BORDER SUPPLY OF GAMBLING 
AND BETTING SERVICES 
A.  Statement by Antigua and Barbuda regarding the implementation of the 
recommendations and rulings adopted by the DSB 
4.1.  The Chairman said that this item was on th e Agenda of the present meeting at the request of 
Antigua and Barbuda. He then invited the representative of Antigua and Barbuda to speak. 
4.2.  The representative of Antigua and Barbuda said that, as was the case in May, since the 
previous DSB meeting, the United States had not made any offer to Antigua and Barbuda in the 
settlement of this dispute. However, the United States had responded to a query from Antigua and 
Barbuda to remark that the United States had no "appetite" for allocating any material resources to resolve this matter, and that the citizens of Antigua and Barbuda should be satisfied with the 
offer of a few technical training sessions and other minor accommodations including participation 
in certain world bodies organized by the United States in which Antigua and Barbuda was, of course, free to participate at any time regardless of this dispute. It was perplexing to Antigua and Barbuda that the United States would take the position that compliance with its international legal 
obligations was contingent on whether the government had an "appetite" for doing so and the 
implication that such compliance was optional. Antigua and Barbuda, as well as other Members, would be very interested in any elaboration that the United States may have on its non-compliance 
and the legal basis behind it. At this stage, Antigua and Barbuda was dismayed that it had not 
received any settlement offer from the United Stat es that would reflect in any way the nature and 
scope of the legal and economic violations. Thus far, Antigua and Barbuda had not been 
compensated for the economic damage tantamount to even one years' worth of the value of the 
suspension of concessions awarded to Antigua and Barbuda by the DSB, ten years after the ruling. 
Antigua and Barbuda had been open, proactive, crea tive, and conciliatory in offering solutions and 
yet still nothing had been forthcoming from the other side. Further, Antigua and Barbuda was 
flabbergasted that the United States believed it could ignore the requirements of Article 21.6 of 
the DSU in this dispute. The facile excuses presen ted in the past were completely without merit, 
and the United States, as well as every other Member, knew it. Antigua and Barbuda understood 
                                               
6 Idem, at para. 7.678. WT/DSB/M/346 
 
- 13 - 
 
  that this was all orchestrated to frustrate Antigua and Barbuda to cause it to tire and to slink away 
into oblivion. On the one hand, Antigua and Barbuda was told to fight and pursue its rights, but on the other, Antigua and Barbuda was being denied the fruits of those rights once fairly earned. No credible reason had been advanced as to why the United States was entitled to flaunt a clear and 
unambiguous decision rendered by the DSB in a dispute over international trading obligations. This 
was not Antigua and Barbuda's fight alone, it properly concerned the credibility of the entire trading system where the impression may be conveyed that the large and powerful could dominate 
the small and weak. Either all Members must honour their obligations or eventually no Member 
would. Which way would it be?  
4.3.  The representative of the United States said that his country remained committed to 
resolving this matter. The United States had met with Antigua at many different levels of the US 
government, it had made multiple generous settlement offers to Antigua in the context of the 
GATS process that the United States had initiated to withdraw the gambling concession at issue, and remained committed to a constructive dialogue with Antigua to the present day. Antigua had 
used rather inflammatory language at the presen t meeting in characterizing the status of the 
discussions between the United States and Antigua, as  well as in characterizing the positions that 
each party to the dispute had taken and calling into question whether the United States had made 
any serious settlement offers. In this context, it was worth noting that the United States had 
worked for months with Antigua on a settlement package in 2008 and had thought that the parties 
had reached agreement, only to have Antigua su bsequently repudiate it. The United States had 
also offered Antigua in 2013 a broad range of useful suggestions to settle this dispute, only to 
have Antigua ignore the US offer for a long period of time before just last month indicating that it 
was not acceptable. Although the United States understood that Antigua may not have found this most recent proposal acceptable, the United States continued to await a constructive answer or a 
realistic counter-proposal from Antigua in response. It was clear that the United States had tried 
repeatedly to resolve this dispute with Antigua, and the United States considered Antigua's suggestions to the contrary to be not based on any facts. Indeed, it was notable that the US 
efforts to find a resolution through the GATS Article XXI process had succeeded with every Member 
except Antigua. Antigua had also suggested that the United States should submit status reports 
with respect to this dispute. The United States did not consider this was necessary or appropriate. The United States had invoked the GATS Articl e XXI procedure to withdraw this erroneous 
concession, and that process was the proper forum for further discussion of this matter. Despite 
the difficulties that the United States had had working things out with Antigua in the past, it continued to hope to find a solution to this disput e. In particular, the United States looked forward 
to a constructive, positive engagement with Antigua's new government. 
4.4.  The representative of Dominica, speaking on behalf of OECS countries, said that, as the 
OECS countries had stated previously, a well-functioning rules-based multilateral trading system 
that was fair-balanced, equitable and addressed the needs, concerns and interests of all its 
Members, in particular the smallest and the weakest and the most vulnerable, was critical for the long-term credibility and relevance of the WTO. Such a system was needed by the smallest and the weakest who lacked the economic and political might to advance and defend their interests in 
what would otherwise be the law of the jungle. For OECS countries, the existence of such a system 
was one of the key benefits for the WTO Membership. The key element of the multilateral trading system was a fair and equitable function of the dispute settlement mechanism. The Panel and the 
Appellate Body rulings in favour of Antigua and Barbuda in this dispute concerning measures 
affecting the cross-border supply of gambling and betting services were, or at least were meant to be, a clear demonstration that the WTO and the multilateral trading system were closer to being 
fair and equitable. The smallest and the weakes t could come away with a positive ruling. The 
inability thus far for those rulings to be translated into implementation and/or for Antigua and Barbuda to obtain a fair settlement of the ca se was, however, a mark against the notable 
achievement of the system, one which needed to be addressed by Members. The OECS countries, 
therefore, called for a speedy resolution of this long-outstanding dispute in line with the DSB's 
rulings and recommendations and more importantly in line with the principles, objectives and goals of the WTO and its agreements. 
4.5.  The representative of Grenada said that  his country was somewhat disheartened by the 
inability to see a resolution of this matter so long after the DSB's ruling. Grenada understood the 
frustration of Antigua and Barbuda and noted that Antigua and Barbuda's statement sent a 
message regarding the way in which the DSB's work was being interpreted by small states, and in 
particular so by all constituencies. Grenada had noted the US response in relation to its willingness WT/DSB/M/346 
 
- 14 - 
 
  to comply with the decision. In that regard, Grenada urged the United States to double its efforts 
in trying to bring a smooth resolution to what, in Grenada's view, was a test of the multilateral trading system. He said that, as the Ambassador to the WTO for Grenada, coming back to the work of the DSB for the second time, and not seeing  a resolution of this matter, certainly did not 
auger well for Members' productivity. Grenada believed that Members should make themselves 
available so that this did not degenerate into  acrimonious finger-pointing and exchanges of 
statements. That would not do any justice to th is process. Grenada wished to see this matter 
resolved, certainly within the next three months. However, Grenada was not in a position to place 
time-frames on either of the parties to this dispute. This was a matter that continued to separate the work of the WTO from constituency building,  certainly in the Caribbean, regarding Members 
true intentions to improve the well-being of their constituencies. It was worth reciting the warnings 
from Antigua and Barbuda's statement regarding th e test of the trading system that either all 
Members conformed or none. Grenada supported the statements made by Antigua and Barbuda and by Dominica on behalf of the OECS countri es. Grenada wished to see more Members express 
the need to see the resolution of this matter in the way that it had been intended by the founders 
of the multilateral trading system. Grenada believed that if this matter was not resolved, it would in fact continue to cause a separation of the small states that worked tirelessly and beyond their 
capacity constraints to participate actively in the WTO's work. Grenada wished to see this matter 
promptly resolved. 
4.6.  The representative of Jamaica said that her country supported the statement made by 
Antigua and Barbuda. It had been nine years si nce the DSB had adopted its recommendations in 
this dispute. For nine years, Members had been waiting for the full implementation of the DSB's 
ruling in favour of Antigua and Barbuda, and thus the resolution of this dispute. Jamaica remained deeply concerned about the failure to resolve this matter in line with the DSB's recommendations. 
In this regard, Jamaica recalled its statements made under this Agenda item at previous DSB 
meetings. As Jamaica had previously indicated, this  dispute was of great significance to developing 
countries and in particular the SVEs, which relied on the credibility of the rules-based multilateral 
trading system. Jamaica, once again, urged the United States to take the necessary steps to meet 
its obligations.  
4.7.  The representative of Nicaragua said that her country, like other delegations, regretted that 
the lack of progress in this dispute affected the trade of another small economy. The submission of 
the same status reports did not amount to compliance with the DSB's recommendations and 
rulings. Members were required to provide the DSB with information on progress in the 
implementation of the DSB's recommendations and rulings. Nicaragua urged the United States to 
take steps so as to promptly resolve this matter and remove this item from the DSB's Agenda. 
4.8.  The representative of India said that his country thanked Antigua and Barbuda for inscribing 
this item on the Agenda of, and for its statemen t made at the present meeting. India sympathized 
with Antigua and Barbuda. The WTO dispute settlement system was conceived as a system where 
all Members, irrespective of their size and status, could see their rights protected. Therefore, any act of prolonged non-compliance eroded Members trust in the system. This dispute was also a classic example that highlighted the urgent need for attention on the issue of compliance in the 
context of the DSU negotiations. India urged the tw o parties, in particular the United States, to 
urgently resolve this issue in a mutually satisfactory manner.  
4.9.  The representative of Brazil said that hi s country thanked Antigua and Barbuda for including 
this item on the DSB's Agenda. Brazil regretted that a mutually agreed solution had not yet been 
found. Brazil also believed that the WTO dispute settlement system could only fully accomplish its objectives if it benefited all Members, regardless of their size or level of development. Bearing that 
in mind, Brazil encouraged both parties to the dispute to engage in effective negotiations with a 
view to reaching a satisfactory solution to this long-standing dispute, in accordance with the DSB's rulings on this matter.  
4.10.  The representative of Cuba said that her country supported the statement made by Antigua 
and Barbuda. A number of delegations had expr essed their support for Antigua and Barbuda 
which, over nine years, had been waiting for the United States to comply with its legal obligations in this dispute. However, Cuba noted that there had been no progress in the resolution of this 
dispute. Therefore, a vital sector was affected in  one of the smallest economies. Cuba urged the 
United States to promptly comply with its obligations and carry out the necessary actions, including providing compensation to Antigua and Barbuda. WT/DSB/M/346 
 
- 15 - 
 
  4.11.  The representative of the Bolivarian Repub lic of Venezuela said that her country supported 
the statement made by Antigua and Barbuda, as well as the statements made by the previous 
speakers. Venezuela noted the flagrant violation of the DSB's rulings and recommendations by a 
Member. The failure by the United States to co mply with the DSB's recommendations and rulings 
was a violation of the rules of the multilateral trading system and undermined the credibility of the 
DSB as the appropriate forum for the resolution of trade disputes. Venezuela regretted that the DSB was seriously affected by the repeated non-compliance by one Member. As it had stated on 
previous occasions, what was more serious was that the prolonged US non-compliance affected 
the delivery of services by a developing-count ry Member and greatly impacted its economy. 
Venezuela supported Antigua and Barbuda, a memb er of the ALBA alliance. Venezuela urged the 
United States to promptly comply. 
4.12.  The representative of Argentina said that his country thanked Antigua and Barbuda for 
inscribing this item on the DSB's Agenda. Argentina also thanked Antigua and Barbuda for its 
statement which kept the DSB abreast of develo pments in this matter. However, Argentina 
regretted that, once again, no progress had be en made. Argentina, therefore expressed its 
concern about the systemic implications of protracted failure to comply with the DSB's recommendations and rulings, in particular since the interests of a developing-country Member 
were affected. Argentina recalled that Article 21.1 of the DSU was clear in this respect and stated 
that, "prompt compliance with the recommendations or rulings of the DSB is essential in order to ensure effective resolution of disputes to the be nefit of all Members". Therefore, Argentina urged 
the parties to this long-standing dispute to redouble their efforts to reach a fair and equitable 
solution. 
4.13.  The representative of Trinidad and Tobago said that his country thanked Antigua and 
Barbuda for its statement and for providing an update under this Agenda item. Trinidad and 
Tobago wished to refer to its previous statements  made under this Agenda item, in particular at 
the DSB meetings on 26 February, 25 April and 23 May 2014. Trinidad and Tobago recalled the statement made at the Trade Policy Review of the Organisation of Caribbean States (OECS) held 
on 17 June by H.E. Ambassador Dr. Patrick Antoine of Grenada, in which he had stated that the 
gaming issue under this Agenda item affected not only Antigua and Barbuda but all 9 members of the OECS. In addition, Ambassador Antoine had stated that Antigua and Barbuda had yet to receive a reasonable offer from the United States in order to arrive at an amicable settlement of 
this dispute. At the level of CARICOM, which also included OECS members, the Heads of 
Government had also pledged their full support to Antigua and Barbuda in its endeavours to obtain 
compliance by the United States with respect to the DSB's ruling in this dispute. As Antigua and 
Barbuda was one of the smallest economies in the world, Trinidad and Tobago supported the 
concerns raised in their statement made at the pr esent meeting. Furthermore, as this dispute was 
more than a decade old, Trinidad and Tobago, once again, urged the United States to seek to 
engage Antigua and Barbuda in urgent, meaningful, and constructive negotiations in order to 
arrive at a mutually acceptable settlement. 
4.14.  The representative of China said that  his country thanked Antigua and Barbuda for 
inscribing this item on the DSB's Agenda. China fully understood the concerns of a vulnerable 
economy regarding the continued non-compliance in this long-standing dispute. China encouraged 
the parties to this dispute to engage in consultations, in order to resolve the dispute as soon as possible. 
4.15.  The representative of South Africa said that her country had, at the present meeting, 
already stressed its systemic concerns that non-compliance with the DSB's rulings undermined the 
integrity of the enforcement pillar of the WTO.  In addition, South Africa remained seriously 
concerned that non-compliance perpetuated negative economic consequences for a particular 
small, developing-country Member. Fundamentally, for South Africa, the ability of smaller and vulnerable economies to access the dispute settlement system, including the right to benefit from prompt compliance with the DSB's recommendations and rulings, was critical to the integrity and 
legitimacy of the WTO as a whole. Therefore, Sout h Africa urged both parties to this dispute to 
actively engage so as to reach a mutually satisfactory settlement of this matter. 
4.16.  The representative of the United States said that, in response to the comments just heard, 
it bore repeating that the United States remained open to working with Antigua to find a solution 
to this dispute. The United States agreed that the focus should be on this task instead of pointing WT/DSB/M/346 
 
- 16 - 
 
  fingers at each other. The United States encouraged Antigua to provide a realistic counter-proposal 
in the near future. 
4.17.  The DSB took note of the statements. 
5  EUROPEAN UNION – COST ADJUSTMENT METHODOLOGIES AND CERTAIN ANTI-
DUMPING MEASURES ON IMPORTS FROM RUSSIA 
A.  Request for the establishment of a pane l by the Russian Federation (WT/DS474/4) 
5.1.  The Chairman drew attention to the communi cation from the Russian Federation contained in 
document WT/DS474/4, and invited the representative the Russian Federation to speak. 
5.2.  The representative of the Russian Federation said that her country requested the 
establishment of a panel to examine this matter, wi th standard terms of reference, as provided for 
in Article 7.1 of the DSU. This request followed Ru ssia's efforts to find a solution with the EU over 
an extended period, including through formal WTO consultations that had been held by the 
Russian Federation with the EU in February and April 2014. Unfortunately, the matter had not been resolved during the consultations. Certain anti-dumping measures and the cost adjustment 
methodologies were still in place and continued to severely hamper trade. In addition to its 
negative economic impact, the cost adjustment methodology used by the EU also raised very important systemic concerns. The Russian Federati on considered that the measures in question 
had been adopted and were applied by the EU in  violation of a number of WTO Agreements. The 
Russian Federation continued to await informatio n from the EU about new developments but, at 
the present meeting, had no choice but to request the establishment of a WTO panel to rule on this matter. 
5.3.  The representative of the European Union sa id that the EU took note of the request, but 
considered the allegations unfounded. The WTO rules on anti-dumping aimed to ensure fair trade. 
The EU had implemented and applied those rules, incl uding those on input cost adjustments, in full 
compliance with the WTO Agreements. The EU thus opposed the establishment of a panel. The EU 
wished to make a few comments on the substantive points made by Russia. The price for gas on the domestic Russian market, which was the principal cost element in certain industries, was found 
to be distorted in a number of cases. The anti-dumping measures were not directed against 
low-priced imports where those low prices were the result of true comparative or natural advantages. However, the low gas prices in Russia had been artificially created by government policies and were not a natural advantage. Finally, the basic AD Regulation and practice did not 
discriminate against Russia. This policy was applied consistently to deal with input cost distortions. 
5.4.  The DSB took note of the statements and agreed to revert to this matter. 
6  CHINA – ANTI-DUMPING AND COUNTERVAILING DUTIES ON CERTAIN AUTOMOBILES 
FROM THE UNITED STATES 
A.  Report of the Panel (WT/DS440/R and WT/DS440/R/Add.1) 6.1.  The Chairman recalled that at its meeting on 23 October 2012, the DSB had established a 
Panel to examine the complaint by the United States pertaining to this dispute. The Report of the 
Panel, contained in document WT/DS440/R and Add.1, had been circulated on 23 May 2014 as an unrestricted document. He noted that the Panel Report was before the DSB for adoption at the request of the United States. This adoption pr ocedure was without prejudice to the right of 
Members to express their views on the Panel Report. 
6.2.  The representative of the United States said that his country was pleased to request the DSB 
to adopt the Report of the Panel in this dispute.  The Report was important and of a high quality, 
and the United States thanked the Panel, and the WTO Secretariat assisting them, for their work in 
producing the Report. This dispute involved China's imposition of significant levels of anti-dumping (AD) and countervailing duties (CVD) on certain automobiles from the United States. After an 
extensive examination, the Panel had correctly found that China's AD and CVD measures had 
serious substantive and procedural deficiencies under WTO rules. The Report was important in at least three respects. First, the Report was important both for US exporters and Chinese consumers WT/DSB/M/346 
 
- 17 - 
 
  of US automobiles, which were faced with AD duties ranging from 2% to 21.5% and CVD duties 
ranging from 6.2% to 12.9%. China was the second  largest export market in the world for US-
made autos, and the significant duties that China had imposed on US autos unjustifiably restricted 
US exports to this important market. The United St ates noted that these duties did not only affect 
American producers, but also Japanese and German producers that manufactured vehicles in the 
United States for export to China. Second, this dispute was important because it was one of a series of disputes involving what appeared to be a systemic misuse by China of AD and CVD 
measures. In November 2012, and again in September 2013, the DSB had adopted very similar 
findings with regard to China's AD and CVD measures on a high-tech US steel product and on chicken broiler products, respectively. This was the third panel to have considered US claims that 
China's AD and CVD measures on US products involved pervasive breaches of essentially the same 
WTO obligations. The United States also noted that other Members were pursuing similar claims 
involving other AD and CVD measures adopted by Ch ina. The United States continued to hope that 
China would respond to this series of disputes by  making the systemic changes necessary to begin 
operating its AD and CVD regimes in accordance with WTO rules. Third, this Report also had 
important systemic findings that would benefit all Members. For example, the Report confirmed that WTO rules required that determinations of dumping and subsidization must be based on an 
objective examination, and must be supported by  facts and evidence. The Report confirmed the 
importance of transparency, and the obligation of investigating authorities to disclose essential facts used to determine dumping margins. The Report also confirmed that authorities must ensure that interested parties were provided non-confidential summaries of confidential information, 
crucial for the meaningful defence of their interests. The Report underscored that an analysis of 
price effects must be based on positive evidence  and involve an objective examination, while a 
determination that imports caused injury to the do mestic industry must be supported by facts and 
evidence on the administrative record. The United States also noted – as was not surprising in a 
report covering such a broad range of issues – that the United States did not agree with certain limited findings that had been made by the Pane l. For example, the Panel had not upheld the US 
claim that China had skewed the injury analysis by excluding domestic producers that did not 
support the investigation. But the Appellate Body had previously confirmed that an injury analysis must not be based on a biased subset of the dome stic industry. The United States understood that 
this Panel finding related only to the unique facts of this dispute. The Panel also had not found an 
inconsistency in China's failure to disclose essential facts and provide public notice regarding the 
AD and CVD duty rates for unknown US exporters.  Reconciling this finding with prior panel and 
Appellate Body reports was difficult. Again, the Unit ed States understood that this finding was tied 
to the unique facts of the dispute. But these claims had not been at the core of the pervasive 
procedural and substantive flaws found by the Pane l. For the reasons it had set out at the present 
meeting, the United States was pleased to propose that the DSB adopt this important Report. As 
had been noted, the United States hoped that China would begin to address its systemic problems 
so as to ensure that all of its AD and CVD investigations comported with its WTO obligations. 
6.3.  The representative of China said that his country thanked the Panel and the Secretariat for 
their work in this dispute, as well as the third parties for their participation in the Panel's 
proceedings. China welcomed that the Panel supported China's claims regarding certain issues in 
this dispute. In particular, the Panel had agreed with all of China's defences on the issue of MOFCOM's domestic industry definition. The Panel had also endorsed MOFCOM's investigative 
procedures as striking an appropriate balance between the rights of parties and administrative 
efficiency, and for its neutrality and openness. With respect to non-confidential summary, the Panel had agreed with China's argument that the percentage changes without absolute values 
could be sufficient to satisfy the non-confidential summary requirements. Regarding all other 
rates, the Panel had agreed with China that MO FCOM had undertaken adequate efforts to reach 
out to unknown US exporters. China thought that it was clear that the issue where China prevailed went directly to the systemic and procedural aspects of the AD/CVD processes.  China regretted 
that the Panel had concluded that the measures at issue were inconsistent with the AD and SCM 
Agreements. China understood that the Panel Report would be adopted at the present meeting. China wished to notify the DSB that the measures at issue had been terminated on 
15 December 2013, and that MOFCOM had issued an announcement terminating these measures 
on the same date. Thus, China did not need to take any further action to implement the recommendations and rulings in this dispute. China wished to also respond to the US assertion of 
the so-called systemic misuse by China of AD an d CVD measures. China totally disagreed with the 
United States. First, such reasoning ignored the fact that each WTO dispute called for an independent assessment of the particular facts of  the dispute. Indeed, there was relevant WTO 
jurisprudence supporting the notion that each WTO case must be viewed on its own merits, both WT/DSB/M/346 
 
- 18 - 
 
  factually and legally, and WTO Members must be assumed to be acting in "good faith" in 
administering their measures. Second, if the US logi c stood, China believed that there were lots of 
systemic problems in the US trade remedy prac tices. The United States, not China, was the 
Member that had been challenged at the WTO in 47 out of the 102 disputes citing the 
AD Agreement, and in 32 out of the 102 disputes citing the SCM Agreement. For example, as all 
Members knew, the United States had consistently been targeted by WTO Members for its "zeroing" practices and had been found to be inconsistent with WTO rules. WTO Members had 
been forced to initiate numerous disputes against the United States and, in fact, China had just 
initiated yet another zeroing dispute in DS471. Another example was that the Appellate Body, in DS379, had found that the United States had failed to identify public bodies in a WTO-consistent 
manner, and had failed to properly address the double remedy issue. Several other pending 
disputes also involved such issues. Third, China wa s by far a more frequent target than a user of 
AD/CVD measures. As a developing-country Member, although China's investigation authorities were quite young, China had always endeavoured to conduct trade remedy investigations in a 
manner consistent with WTO rules. Where China had been found to be inconsistent in certain 
disputes, it had fully implemented the DSB's rulings and recommendations by the end of reasonable period of time. 
6.4.  The representative of the United States said that his country took note of China's statement 
that it had terminated the AD and CVD measures on automobiles from the United States. With the 
withdrawal of the AD and CVD duties on US auto s, it would appear that no more action was 
necessary for China in respect of the findings and recommendations in the Panel Report. The 
United States was pleased with this development and would continue to monitor any duties applied 
to US autos exports. However, the United States reiterated its view that China would benefit from taking broader action – beyond mere termination of the AD and CVD measures – to address the 
systemic problems that had been highlighted by the series of dispute settlement reports that had 
found that numerous AD and CVD measures imposed by China had breached its WTO obligations. In multiple disputes, including "China - GOES" and "China - Broiler Products", the Panel and 
Appellate Body had found China's AD and CVD measures inconsistent with its WTO obligations for 
many of the same reasons as the Panel Report be ing adopted at the present meeting. Instead of 
acknowledging this, China had attempted to change the subject by raising disputes related to US 
AD measures. These were not the measures that were at issue in the Panel Report being adopted 
at the present meeting. Instead of raising these unrelated issues, the United States would 
encourage China to address the systemic problems with its AD and CVD regime. 
6.5.  The DSB took note of the statements  and adopted the Panel Report contained in 
WT/DS440/R and Add.1. 
7  EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND 
MARKETING OF SEAL PRODUCTS  
A.  Report of the Appellate Body (W T/DS400/AB/R) and Report of the Panel 
(WT/DS400/R and WT/DS400/R/Add.1) 
B.  Report of the Appellate Body (W T/DS401/AB/R) and Report of the Panel 
(WT/DS401/R and WT/DS401/R/Add.1) 
7.1.  The Chairman proposed that the two sub- items be considered together. He then drew 
attention to the communication from the Appella te Body contained in documents WT/DS400/12 – 
WT/DS401/13, transmitting the Appellate Body Reports, "European Communities – Measures 
Prohibiting the Importation and Marketing of Seal Products", which had been circulated on 22 May 
2014 in documents WT/DS400/AB/R – WT/DS401/AB/R. He reminded delegations that the Appellate Body Reports and the Panel Reports pertaining to these disputes had been circulated as 
unrestricted documents. As Members were aware,  Article 17.14 of the DSU required that, "An 
Appellate Body report shall be adopted by the DS B and unconditionally accepted by the parties to 
the dispute unless the DSB decides by consensus no t to adopt the Appellate Body report within 
30 days following its circulation to Members. This adoption procedure is without prejudice to the 
right of Members to express their views on an Appellate Body report".  
7.2.  The representative of Canada said that his country thanked the Appellate Body, the members 
of the Panel, and the WTO Secretariat for their wo rk over the past 18 months. Canada appreciated WT/DSB/M/346 
 
- 19 - 
 
  their efforts in assisting the parties to achieve a resolution to this dispute. Canada also thanked 
Norway for its valuable cooperation as a co-complainant in this dispute. Like Canada, Norway had been detrimentally affected by this unjust ban. For years, Canada had raised concerns about the EU's ban on seal products. Canada's position had always been that its eastern and northern seal 
harvests were humane, sustainable, and well-regu lated activities that provided an important 
source of food and income for coastal and Inuit communities. Canada was therefore pleased that the Appellate Body and Panel Reports had confirmed Canada's long-standing position that the EU's 
ban on imports of Canadian seal products was inconsistent with the EU's international trade 
obligations. In fact, the EU seal regime violated the most fundamental principles of these obligations, the most-favoured-nation and national treatment obligations of the GATT 1994. It was 
nonetheless very disappointing to Canada that the Appellate Body and the Panel had concluded, on 
the basis of a very broad reading of Article XX(a) of the GATT, that this regime was necessary to 
protect public morals. The Appellate Body's reasoning on public morals was of concern for several reasons. First, the Appellate Body had opted to ig nore the presence of the term "to protect", when 
used in relation to "public morals" under Articl e XX(a), despite previous jurisprudence that had 
indicated that this word reflected a requirement on  a responding Member to identify the existence 
of a risk in order to successfully invoke Article XX(b), a provision that was textually and 
conceptually very similar to Article XX(a). The Appellate Body's interpretive approach implied that 
a WTO Member that chose to invoke public morals to defend a violation of its WTO obligations was not required to demonstrate that there was a genuine risk to the public morals it wished to protect. 
7.3.  Second, the Appellate Body appeared to have concluded that there was also no requirement 
on a responding Member to identify the specific content of the public morals standard at issue 
when invoking the exception to justify a measure. This omission broadened the scope of the 
exception well beyond what Canada believed WTO Members could reasonably have expected. 
Finally, the Appellate Body had concluded that there was no need for consistency in the levels of protection chosen by the responding Member when public morals, something that was highly 
subjective and open to interpretation, were being used to justify a trade-restrictive measure. In 
Canada's view, when the public morals exception was invoked on animal welfare grounds, particularly with respect to the welfare of animals located outside the jurisdiction of the responding 
Member, it was very relevant for a panel to consider the animal welfare standards applied by that 
Member in similar situations to establish the relationship between the alleged public moral and the 
relevant standard for animal welfare. Given that the EU had argued that animal welfare was a strong public morals issue for its citizens, it would have been both appropriate and necessary for 
the Panel to consider animal welfare standards applied in similar situations in the EU to assess 
whether the public morality defense was reasonably and credibly invoked. The Panel's failure to do so was a major flaw in its analysis. For these reasons, Canada was disappointed that the Appellate 
Body had chosen to uphold the Panel's specific findings on public morality and animal welfare. This 
was all the more significant given that the EU se al regime did little or nothing to prevent seal 
products derived from seals killed inhumanely from  being put on the EU market or to address the 
so-called EU public concerns about seal welfare. Indeed, the Appellate Body had found that the EU 
had not shown how the manner in which the EU seal regime treated seal products derived from 
Indigenous hunts, as compared to seal products derived from "commercial" hunts, could be reconciled with the objective of addressing EU public moral concerns regarding seal welfare. It had 
also found considerable ambiguity in the "subsistence" and "partial use" criteria of the Indigenous 
Communities exemption, thus indirectly confirming what Canada had always maintained, that seal products derived from what in fact should be properly characterized as "commercial" hunts had 
unfettered access to the EU market under this exemption. 
7.4.  As a result of the Appellate Body's findings, Members were free to apply a more lenient level 
of protection for animal welfare domestically, while imposing an impossibly stringent level of protection for products derived from animals harvested in other jurisdictions. This applied even 
when, from a moral standpoint, the situations were very similar, provided that the animals in 
question were different. Therefore, Canada considered that the consequences of the Appellate Body's interpretive reasoning should be of great concern to all Members. As a result of long-term 
and well-funded campaigns against Canada's seal harvest, including the consistent repetition of 
myths and misinformation about that harvest, EU public decision-makers had instituted this ban. 
Members should consider carefully the potential ramifications for the world trade system where 
interest group campaigns created the appearance of a "moral concern" that incited legislators to 
act in response to political pressure. Canada had already seen this in California, where the import of foie gras had been banned. Certain interest groups had also opposed genetically modified WT/DSB/M/346 
 
- 20 - 
 
  organisms based, in part, on purported ethical grounds. Similarly, such groups condemned the 
production methods of other crops, like palm oil, or questionable labour practices in the fisheries 
sector in some parts of the world, notably, shrimp in South East Asia. To be clear, Canada understood that WTO rules must accord a certain degree of deference to Members in choosing how 
to address their policy objectives. However, policy objectives related to public morals, a highly 
subjective concept, should be anchored in a genuine and demonstrable concern about a clearly identifiable risk to the public morality of the citi zens of the Member invoking this exception. On the 
other hand, the Appellate Body's findings in relati on to this exception had set a negative precedent 
that could lead to an expanded application well beyond the intent of the framers. That said, the Appellate Body nonetheless had found that the EU seal regime had been applied in a manner that 
constituted arbitrary and unjustifiable discrimination and, for that reason, the EU would need to 
take compliance action as a result of the adoption  of the Report at the present meeting. Canada 
was prepared to work with the EU and Norway on compliance and looked forward to a fruitful discussion in that respect. Finally, on a procedural matter that Canada knew was important to 
some Members, Canada acknowledged that the Appellate Body Reports in this dispute had been 
circulated after the 90-day period provided for in Article 17.5 of the DSU. Canada noted, however, 
that the principal cause of the delay in the circulation had been a request from the parties 
themselves to delay the oral hearing for logistical reasons. The Division had set this reason out in 
a letter sent to the parties on 24 March 2014. The DSB had had numerous occasions, both formal and informal, to discuss how to deal with the strict  constraints imposed by Article 17.5 of the DSU. 
Canada continued to consider that it was important that every effort be made to circulate reports 
within the timelines prescribed by the DSU. But Canada also acknowledged that there were 
legitimate circumstances in which this was simply not possible. That this was the case in this dispute was only a reminder, once again, of the need for Members to redouble efforts to reconcile 
the competing pressures of the strict legal cons traints imposed by the DSU with the increasing 
complexity of disputes brought before the Appellate Body. 
7.5.  The representative of Norway said that his country thanked the members of the Appellate 
Body division, the members of the Panel and the Secretariat staff for the considerable time and 
effort that they had devoted to the resolution of this dispute. In addition, Norway thanked its co-
complainant, Canada, for its very useful cooper ation throughout the process. Norway welcomed 
the fact that the Appellate Body had agreed with the Panel that the EU seal regime was 
discriminatory and not justifiable under Article XX of the GATT 1994, and thus incompatible with 
the EU's WTO obligations. Norway was also plea sed that the Appellate Body had reversed the 
intermediate legal findings that the Panel had made under the chapeau of Article XX, and that it 
had gone on to complete the analysis based on the correct legal test. Importantly, the Appellate 
Body had found that the EU had not demonstrated that the discriminatory aspects of the EU seal regime could be reconciled with, or indeed, was even related to, the policy objective of addressing 
the EU public moral concern regarding seal welf are. At the same time, Norway was disappointed 
that the Appellate Body had not reversed the Panel's conclusion under subparagraph (a) of Article XX of the GATT 1994. In Norway's view, the Panel had been mistaken in concluding that the EU seal regime contributed to the specific public  moral concerns of the EU. The EU had borne the 
burden of proof on this point. However, the ev idence that had been submitted by the EU, as 
Norway saw it, did not substantiate the existence of such moral concerns in the EU public. Moreover, there were alternative measures reasonab ly available to the EU that, in Norway's view, 
would be more effective in contributing to the ob jective. Norway believed that when all relevant 
factors were weighed and balanced, as required by the Appellate Body in the case law, the EU seal 
regime could not be considered "necessary" to protect the specific public moral concerns of the EU. 
Finally, Norway was surprised that the Appellate Body had reversed the Panel's finding, and had 
found that the EU seal regime was not a technical regulation as set out in Annex 1 of the TBT Agreement. For Norway, this dispute had not just been about seal products. More importantly, it had been about Norway's right to harvest in a sustainable manner from its living marine resources, 
and to market the products from hunting and fishing. Seals were a top predator of fish and the 
stock of seals was abundant in the marine ecosystem. It required control in the interest of protecting seals from over-population; fish from depletion; and, hence, human interest in fish 
stocks. Norway harvested marine species at all le vels of the ecosystem, and seals were harvested 
subject to rigorous animal welfare regulations as well as quotas set with the best available scientific evidence, using an ecosystem-based approach. Norway had brought this dispute to seek 
to avoid that the EU seal regime set a precedent for trade in products from resources that were 
harvested in a responsible and sustainable mann er. Norway looked forward to the EU's swift 
compliance with the recommendation s and rulings in the Reports. WT/DSB/M/346 
 
- 21 - 
 
  7.6.  The representative of the European Unio n said that the EU thanked the members of the 
Appellate Body, the panelists, and the Secretariat fo r their work in this case. The EU acknowledged 
the time and efforts dedicated to this dispute. The EU was pleased with the Appellate review insofar as it had confirmed that the ban on the importation and marketing of seal products was 
justified on moral grounds relating to animal welfare concerns on the killing of seals. The EU also 
welcomed the further guidance provided by th e Appellate Body on the characterization of 
measures as a technical regulation and the reversal of the Panel's findings in that respect. The EU 
regretted that the Appellate Body had found the exception for hunts conducted by Inuit and other 
indigenous communities (IC exception) not to be  designed and applied in a manner that met the 
requirements of the chapeau of Article XX of  the GATT 1994. The EU remained committed to 
respecting and protecting the interests of all Inuit people and other indigenous communities 
independent of where they lived. However, the EU  noted that the Appellate Body had reached its 
findings on a legal standard and reasoning which was different from the one adopted by the Panel and which was useful in providing further guidance for the next steps. Pursuant to Article 21.3 of 
the DSU, the EU had an obligation to inform the DS B of its intentions in respect of implementation 
of the DSB's recommendations and rulings within 30 days after the date of adoption of the reports. 
As a DSB meeting was not scheduled during that time period, a special DSB meeting should 
normally be convened for that purpose.
7 To avoid the need to hold a special DSB meeting only for 
that purpose, the EU planned to inform the DSB by means of a written communication within the prescribed 30 days, and then to reconfirm the information on implementation at the next regular DSB meeting scheduled for 22 July 2014, unless a special DSB meeting was convened in the 
meantime. 
7.7.  The representative of the United States said that this dispute and the Reports being adopted 
at the present meeting raised a number of important systemic issues that should be of interest to 
Members. The United States was a third party in this dispute and appreciated some of the 
challenges faced by the Panel and the Appellate Body in producing their Reports. Many of the 
issues involved and the claims and arguments of  the parties had been quite complex and nuanced, 
and the United States appreciated the hard work  by both the panel and the Appellate Body in 
grappling with those issues. One key issue that had been addressed in the dispute was whether 
the measure at issue was a technical regulation. The Appellate Body's finding that the measure at issue was not a technical regulation was welcomed and fully supported by the text of the TBT 
Agreement. The measure did not lay down product characteristics or a process or a production 
method that was related to product characteristics. Therefore, the measure did not come within the first sentence of the definition of a techni cal regulation as set out in Annex 1 of the TBT 
Agreement. The measure concerned the characteristics of the type of hunt involved, not the 
characteristics of the product itself. Two identical final products with exactly the same characteristics would be treated differently based not on those characteristics, but on the fact that 
one product involved a certain type of hunt while the other involved a different type. Thus, the 
United States welcomed the Appellate Body’s analysis and its reversal of the Panel’s finding. With respect to the non-discrimination claims under Articles I and III of the GATT 1994, the findings by the Panel and Appellate Body were more troubling. In particular, the United States was not fully 
persuaded by the Appellate Body's finding that the national treatment provisions of the TBT 
Agreement were to be interpreted differently from  the national treatment provisions of the GATT 
1994 in light of the fact that these two provisio ns contained identical wording. These findings 
appeared to ensure that a measure could be found consistent with Article 2.1 of the TBT 
Agreement, yet inconsistent with the identicall y worded Article III:4 of the GATT 1994. Indeed, 
these findings raised the very real possibility, as had been demonstrated in this dispute, that 
Article 2.1 of the TBT Agreement would become su perfluous, and the legal approach developed in 
the recent TBT disputes would become just an historical footnote. The Appellate Body Report sought to respond to this concern in part by stating that "the European Union has not pointed to any concrete examples of a legitimate objective that could factor into an analysis under Article 2.1 
of the TBT Agreement, but would not fall within  the scope of Article XX of the GATT 1994". 
However, there had been such examples that were  provided during the appeal. One such example 
was provided by the TBT Agreement text itself an d that was – the preamble referred to "measures 
necessary to ensure the quality of" a Member's exports. There was no parallel provision in 
Article XX of the GATT 1994. It was also difficult to understand how a "detrimental impact" on imports from one Member compared to another Memb er could by itself be sufficient to find that 
those imports were being treated less favourably. One would expect that any measure would affect 
                                               
7 Footnote 11 of the DSU. WT/DSB/M/346 
 
- 22 - 
 
  some products differently from others. Yet that different treatment would not amount to 
discrimination unless one also looked at the reason  why there was such a difference in treatment.  
7.8.  On the other hand, with respect to the analysis under Article XX(a) of the GATT 1994, the 
Panel and Appellate Body had carefully consider ed and addressed a number of difficult issues 
involving what was a public moral for purposes of that provision and what it meant to protect a 
public moral. In that analysis, the Panel and th e Appellate Body had considered and had declined 
to accept a number of arguments that would have significantly departed from the text of 
Article XX(a). Members needed to have the ability to delineate their approach to public morals in 
accordance with the particular context of their own domestic system. The findings that were being adopted at the present meeting affirmed that ability and should be generally welcomed by Members. Finally, the United States said it would like to comment on an important systemic issue 
that had been raised in the context of this appeal  and something that Canada had also raised. This 
had been raised not by the Report itself, but by the Appellate Body's 24 March 2014 letter to the DSB Chair, in which it indicated that it "will not be able to circulate its reports within the 90-day 
timeframe provided for in the last sentence of Article 17.5 of the DSU". While the 90-day deadline 
in the DSU text was categorical, Members had an understanding of the workload challenges faced by the Appellate Body, and had been willing to ag ree to receive a report after this deadline and 
provided in writing their commitment to treat the report as if it had been circulated within the 
90-day deadline when they had been meaningful ly consulted with by the Division handling a 
particular appeal. Equally important, such consultation and agreement, when noted in the Appellate Body's communication and by the parties,  provided transparency to the DSB in relation 
to the observance of the rules in the DSU. For those reasons, the Appellate Body had regularly 
consulted with and obtained the agreement of Members to issue reports after 90 days between 1997 and 2011. The United States had been taking a close look at the facts earlier that week and 
had found that during those years, the Appellate Body had obtained the parties agreement in 
14 consecutive disputes – the first 14 disputes where the circulation of the report had exceeded 90 days from the date of appeal. Unfortunately, it was the US understanding that the Division 
hearing this appeal had deviated from this well-established practice. It was regrettable that the 
agreement of the parties to circulate its reports after the 90-day deadline had not been obtained and that transparency to the DSB had not been pr ovided. As Canada had mentioned, part of the 
rationale for delaying the Report might have been because the parties had suggested changing the 
date of the hearing, but this highlighted that the parties would have readily agreed to the issuance 
of the Report after the deadline. This deviation from past practice was extremely troubling, and 
the United States was concerned that it may repeat itself in the near future, in particular in light of 
the fact that the Appellate Body may face a higher than normal workload in the year to come. The 
United States hoped that the Appellate Body and Members could engage in a dialogue on this issue in the weeks ahead to come to a solution that respected the mandatory deadline set out in the text 
of the DSU and provided the DSB with transparency  with respect to the agreement of the parties 
and timing of the issuance of A ppellate Body reports while at the same time ensuring that the 
Appellate Body had the time to produce high-quali ty reports. In that regard, the United States 
believed that the well-established practice until 2011 had served WTO Members and the Appellate 
Body well.  
7.9.  The representative of Guatemala said that his country thanked the Panel, the Appellate Body, 
the WTO Secretariat and the AB Secretariat for the Reports that were being considered at the 
present meeting. Guatemala wished to comment on  the fact that the Appellate Body Report had 
been circulated outside the 90-day time-frame. As Guatemala had stated on previous occasions, it was clear that Article 17.5 of the DSU did not allow for exceptions. This was a mandatory provision 
that needed to be complied with. Guatemala was also aware of the fact that, on some occasions, 
the Appellate Body would need additional time, due to various reasons, in order to issue its reports. Therefore, Guatemala believed that co nsultations between the parties and the Appellate 
Body, as well as the need to ensure transparency on extending of time-frame s, were crucial. As far 
as Guatemala was concerned, consultation with the parties to the dispute did not mean obtaining 
agreement of the parties in order to extend the time-frame of 90 days. Furthermore, Article 17.14 
was clear – the Appellate Body reports would be adopted by the DSB and unconditionally accepted 
by the parties to the dispute unless the DSB decide d by consensus not to do so. In light of this 
provision, the lack of agreement of the parties to the dispute as to whether or not to extend the 90-day time-frame in Article 17.5 of the DSU would not affect in any way or prevent the adoption 
of the report, unless the DSB decided by consensus not to adopt it. WT/DSB/M/346 
 
- 23 - 
 
  7.10.  The representative of Norway said that with regard to the 90-day time-frame, his country 
supported Canada's statement on this matter. Norway wished to also address the issue of 
transparency raised by the United States. Norway agreed that transparency was important in case 
the Appellate Body was not in a position to circulate a report within the 90-day time-frame 
stipulated in Article 17.5 of the DSU. In this disp ute, Norway noted that the Appellate Body in its 
Report had provided the reasons why the Report under consideration had been circulated outside the 90-day time-frame. In addition, two communica tions regarding this matter had been circulated 
to Members during the appeal process. 
7.11.  The representative of Japan said that his country supported the points raised by the 
United States with regard to the systemic issue related to the 90-day time-frame. Japan reiterated 
the importance of consultations between th e Appellate Body and Members under such 
circumstances in order to produce high-quality reports. 
7.12.  The representative of the European Union said that the EU largely agreed with what 
Guatemala had just stated. The EU did not see any link between Articles 17.5 and 17.14 of the 
DSU. 
7.13.  The representative of the United States said that his country thanked the other Members 
that had weighed in on this issue. The statements from Guatemala and the EU, as well as 
statements that the United States had heard from Japan, Norway and Canada illustrated that this 
was an issue that was of importance to Members from a systemic stand point. It was important 
that as Members were going to be potentially dealing with a series of Appellate Body reports coming out in the upcoming year, it was important to find time to engage in a fulsome discussion 
on this issue so that they could discuss the systemic implications and find the best way forward 
that promoted transparency as well as the other objectives that the United States had mentioned in its statement. 
7.14.  The DSB took note of the statements and adopted the Appellate Body Report contained in 
WT/DS400/AB/R and the Panel Report contained in WT/DS400/R and Add.1, as modified by the 
Appellate Body Report; and the DSB adopted the Appellate Body Report contained in 
WT/DS401/AB/R and the Panel Report contained in WT/DS401/R and Add.1, as modified by the Appellate Body Report. 
8  CANADA – CERTAIN MEASURES AFFECT ING THE RENEWABLE ENERGY GENERATION 
SECTOR/CANADA – MEASURES RELATING TO THE FEED-IN TARIFF PROGRAM  
A.  Statements by Japan and the European Union  
8.1.  The representative of Japan said that his country was compelled to make a statement on this 
matter under "Other Business", due to the fact that Canada had sent its notification 
(WT/DS412/19) to declare its compliance on 5 June 2014, and that Japan was unable to inscribe 
this matter on the Agenda of the present meeting. Canada had failed to place this matter on the Agenda and to report to the DSB on the status of the implementation in this dispute. As a result, 
Japan had only an opportunity to express its view s under "Other business". Japan deeply regretted 
Canada's decision not to submit its status report on this matter, since the dispute had not yet been resolved. Japan could not agree with the content of Canada's notification. In fact, Japan found it difficult to understand how Canada could claim the completion of its compliance, since there had 
been no additional action taken by Canada sinc e the last DSB meeting or even after Japan had 
agreed to modify the reasonable period of time on 24 March 2014. Japan had not received any formal explanations from Canada on its sudden revers al of position. In light of such a disappointing 
development, Japan urged Canada to explain ho w Canada could claim it had complied in the 
absence of any actions of replacing the domestic content requirements in the FIT Program. Japan wished to express its systemic concern that Canada's declaration of compliance with no action 
would undermine the confidence in the dispute se ttlement system. In order to make sure that 
Canada had fully complied with the DSB's recommendations and rulings, Japan was considering all available steps and reserved any rights under the DSU. 
8.2.  The representative of the European Union sa id that the EU wished to raise, under "Other 
Business", a procedural point in relation to the surveillance by the DSB of implementation actions 
in the context of the DS426 dispute. Being an "Oth er Business" item, the EU would try its best not WT/DSB/M/346 
 
- 24 - 
 
  to comment on substantive points relating to that dispute, although it was very tempted to do so. 
The EU noted with surprise the fact that Canada had neither submitted a status report nor inscribed an item on the Agenda of the present meeting. Instead, Canada had sent a written communication to the EU, dated Thursday 5 June, 2014, the day on which the reasonable period of 
time had expired, stating that "Canada considers that it has complied with the recommendations 
and rulings of the DSB in these disputes". Canada supported this statement by reference to actions taken by the Ontario authorities in June and Au gust 2013, about one year ago. Without prejudice 
to the assessment of the actions of the Ontario authorities, the EU was disappointed that Canada 
had not chosen to place this item on the Agenda of the present meeting. That would have enabled 
Canada to inform all Members transparently about its position and, importantly, to allow for a discussion in full respect of the multilateral function of the DSB to keep under surveillance 
compliance matters. This was irrespective of whether Canada considered to have complied or not 
with the DSB's recommendations and rulings in this case. The EU recalled that, at its previous meeting, the DSB had agreed, and Canada had not opposed, to revert to the issue of Canada's 
compliance in the DS426 dispute. Moreover, the late submission of Canada's communication had 
made it difficult for the EU to request the addition of an item concerning DS426 on the Agenda of the present meeting. The letter with Canada's formal assertion that such actions achieved 
compliance with the DSB's recommendations and rulings had been sent late on 5 June 2014 and 
could be considered by the EU only on 6 June, the date on which the Agenda closed. It was not clear to the EU why Canada had chosen to wait until the last moment of the reasonable period of time to present its views, considering that the actions referred to in Canada's letter had taken 
place in June and August 2013, and had already been mentioned in all of Canada's status reports 
during the reasonable period of time. The EU noted that the DSB was a key element of the multilateral trading system. Discussing matters regarding the compliance by Members with its 
recommendations and rulings was one of the DSB's essential functions. Given Canada's apparent 
unwillingness to contribute to the fulfilment of the DSB's role in this case, the EU had already announced that it would request that an item on DS426 be included on the Agenda of the next 
DSB meeting. That should give Canada an opportunity to explain why it had declared full 
compliance, while explicitly admitting that the legislative procedure that had been initiated to bring about compliance was aborted due to political circumstances, leaving the core local content provisions of the legislation in force. That should furthermore give Canada an opportunity to clarify 
whether its most recent decisions regarding this dispute were the model under which Canada 
wished to do business in the future in the DSB. If yes, Canada was taking a very dangerous step towards undermining the credibility of the whole system. 
8.3.  The representative of Canada said that his country was surprised to hear Japan and the EU 
suggest that Canada was required to provide a status report in the "Canada - FIT" disputes at the 
present DSB meeting. As Canada had indicated at the May DSB meeting when the issue of 
reverting to DS412 and DS426 at this meeting had been raised, the expiry of the reasonable 
period of time in these disputes was on 5 June 2014, prior to the circulation of the Agenda for the present meeting. At that time, Canada had indicate d that if there was compliance prior to the June 
meeting, there would be no need to revert to the item. Other delegations had agreed with Canada 
that a status report would not be required if there was a clear and categorical notification of that 
compliance to all Members. On 5 June, the expiry date of the reasonable period of time, Canada 
had sent a written communication to Japan and the EU setting out its notification of compliance 
within the reasonable period of time. That written communication had also been provided to the 
Chair of the DSB for circulation to all Members, which had been done in document WT/DS/412/19 – WT/DS/426/19. As a result, there was no obligation on Canada to provide a status report at the 
present meeting, for which the Agenda had been circulated on 6 June 2014. This was consistent 
with the provisions of the DSU and with the prac tice of the DSB in pre-authorized retaliation 
circumstances. Canada did not agree with the points made by Japan and the EU at the present meeting. With respect to the comments by the EU  and Japan about the content of the 5 June 2014 
communication from Canada, Canada did not intend to enter into a substantive discussion of the 
matter under the "Other Business" item. 
8.4.  The DSB took note of the statements. 
9  STATEMENT BY THE CHAIRMAN REGARDING THE AB SELECTION PROCESS 9.1.  The Chairman, speaking under "Other Business", said that, as he had announced at the 
outset of the present meeting, he wished to make a statement concerning the process for 
appointment of one Appellate Body member. As delegations were aware, thus far two new WT/DSB/M/346 
 
- 25 - 
 
  candidates had been nominated for the vacant position in the Appellate Body. The nominations had 
been made by Kenya and Mauritius. He recalled that candidates from Cameroon and Egypt, nominated in 2013, would remain under consideration in the current selection process. He further recalled that, pursuant to the DSB decision contained in document WT/DSB/63, a Selection 
Committee had been established to carry out the selection process. As delegations were aware, 
the Selection Committee was composed of the Chairs of the General Council, the Goods Council, the Services Council and the TRIPS Council, as well as of the Director-General and the Chair of the 
DSB. He also recalled that the DSB had agreed to request the Selection Committee to conduct 
interviews with all candidates and to hear the vi ews of delegations in July and September 2014, in 
order to make its recommendation by no later than 15 September, so that the DSB could take a decision on appointment at its regular meeting on 26 September 2014. After the expiry of the 
30 June deadline, he said that he would be in contact with the Selection Committee to confirm the 
process that would be followed and to agree on a ti me-table for interviews, as well as to set aside 
time to hear the views of delegations on the cand idates before making a final recommendation. As 
soon as the time-table for the process was agreed, he would send a fax to delegations updating 
them on the process and he would ask the Secretariat to make the necessary arrangements to set up appointments for the Selection Committee to hear the views of delegations. As in the past, 
delegations were also free to make their views known to the Selection Committee in writing. Any 
such written communications should be sent to the Chairman of the DSB in care of the Council/TNC Division. The deadline for written comments would be communicated to delegations by fax shortly after 30 June 2014. Consistent with  past practice, delegations wishing to meet with 
the candidates were invited to contact directly the Missions of the respective nominating Members 
in order to make appropriate arrangements.   
9.2.  The DSB took note of the statement. 
__________