WT/AB/18  
 
9 April 2013  
(13-1816)  Page: 1/156  
  Original: English  
 
  
  
 
  
 
   
 
  
 
  
 
  
APPELLATE BODY 
 
 
ANNUAL REPORT FOR 2012 
 
  
 
 
9 APRIL 2013 WT/AB/18 
 
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The Appellate Body welcomes  comments and inquiries  
regarding this report at the  
following address: 
 
Appellate Body Secretariat 
World Trade Organization 
rue de Lausanne 154 
1211 Geneva, Switzerland 
email: appellatebody.registry@wto.org 
<www.wto.org/appellatebody > WT/AB/18 
 
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  CONTENTS 
ABBREVIATIONS USED IN TH IS ANNUAL REPORT .................................................................. 5 
FOREWO RD...................................................................................................................... 6 
1   INTROD UCTION  .......................................................................................................... 8  
2   COMPOSITION OF TH E APPELLATE BODY .................................................................. 10  
3   APPEAL S ...................................................................................................................  12 
4   APPELLATE BODY REPORTS ....................................................................................... 13  
4.1   Appellate Body Reports, China – Measures Related to the Exportation of Various 
Raw Materials , WT/DS394/AB/R, WT/DS395/ AB/R, WT/DS 398/AB/R  ....................................... 15 
4.2   Appellate Body Report, United States – Measures Affecting Trade in Large Civil 
Aircraft (Second Complaint) , WT/DS353/AB/R ...................................................................... 21 
4.3   Appellate Body Report, US – Measures Affecting the Production and Sale of Clove 
Cigarettes , WT/DS406/ AB/R .............................................................................................. 54 
4.4   Appellate Body Report, US – Measures Concerning the Importation, Marketing and 
Sale of Tuna and Tuna Products , WT/DS381/ AB/R ................................................................ 60 
4.5   Appellate Body Reports, US – Certain Country of Origin Labelling (COOL) 
Requirements , WT/DS384/AB/R, WT/DS386/ AB/R ................................................................ 67 
4.6   Appellate Body Report, China – Countervailing and Anti-Dumping Duties on Grain 
Oriented Flat-Rolled Electrical Steel from the United States , WT/DS414/ AB/R ........................... 76 
5   PARTICIPANTS AND THIRD PARTICIPANTS IN APPEALS .......................................... 83  
6   WORKING PROCEDURES FOR APPELLATE REVIEW .................................................... 86  
6.1   Procedural issues arising from appeals ......................................................................... 86 
7   ARBITRATIONS UNDER ARTI CLE 21.3(C) OF  THE DSU .............................................. 91  
7.1   US – Certain Country of Origin Labelling (COOL) Requirements , WT/DS384/24, 
WT/DS386/ 23 ................................................................................................................. 91 
8   TECHNICAL ASSISTANCE ........................................................................................... 94  
9   OTHER AC TIVITIES ................................................................................................... 94  
 
Table 1A:  Composition of the Appella te Body 1 January  to 31 Ma y 2012 ................................. 11 
Table 1B:  Composition of the Appellate Body as of 1 June 2012 ............................................. 99 
Table 2:  Appeals filed in 2012 ........................................................................................... 12 
Table 3:  Appellate Body reports circulated in 2012 ............................................................... 14 
Table 4:  WTO agreements addressed in Appellate Body reports circulated in 2012 .................... 14 
Table 5:  Participants and third participants in appeals for which an Appellate Body report 
was circulat ed in 2012 ...................................................................................................... 84 
 
Chart 1:  Total number of appeals 1995-2012 ...................................................................... 13 
Chart 2:  WTO agreements addressed in appeals 1996-2012 .................................................. 15 
Chart 3:  WTO Member particip ation in appeals 1996-2012 .................................................... 86 
 
ANNEX 1A Members of the Appellate Body – 1 January to 31 December 2012: 
Biographical notes  ..................................................................................... 95 
ANNEX 1B Farewell speech of depart ing Appellate Body Member ...................................... 99 WT/AB/18 
 
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  ANNEX 2 Former Appellate Body  Members and ch airpersons ......................................... 101 
ANNEX 3 Appeals fi led: 1995 –2012 ........................................................................... 103 
ANNEX 4 Percentage of panel reports a ppealed by year of  adoption : 1995–2012  ............. 104 
ANNEX 5 WTO agreements addressed in Appellate Body reports circulated 
through 2012 ............................................................................................ 105 
ANNEX 6 Participants and third part icipants in appe als: 199 5–2012 ............................... 106 
ANNEX 7 Appellate Body Secretariat participation in technical assistance, training, 
and other activities in 2012 ......................................................................... 130 
ANNEX 8 WTO dispute settlement reports and arbitration aw ards: 1995–2012 ................ 132 
 WT/AB/18 
 
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  ABBREVIATIONS USED IN THIS ANNUAL REPORT 
Abbreviation Description 
Anti-Dumping Agreement Agreement on Implem entation of Article VI of the General 
Agreement on Tariffs and Trade 1994  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement 
of Disputes 
GATS General Agreement on Trade in Services  
GATT 1994 General Agreement on Tariffs and Trade 1994 
Rules of Conduct Rules of Conduct for the Understanding on Rules and Procedures 
Governing the Settlement of Disputes, adopted by the DSB on 
3 December 1996, WT/DSB/RC/1 
SCM Agreement Agreement on Subsidies and Countervailing Measures 
SPS  Sanitary and Phytosanitary  
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary 
Measures 
TBT Agreement Agreement on Technical Barriers to Trade  
TRIMs Agreement Agreement on Trade-Related Investment Measures  
TRIPS Agreement Agreement on Trade-Related Aspects of Intellectual Property Rights  
Vienna Convention Vienna Convention on the Law of Treaties, done at Vienna, 23 May 
1969, 1155 UNTS 331; 8 International Legal Materials 679 
Working Procedures Working Procedures for Appellate Review, WT/AB/WP/6, 
16 August 2010 
WTO World Trade Organization 
WTO Agreement Marrakesh Agreement Establishing the World Trade Organization 
  WT/AB/18 
 
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  FOREWORD 
2012 was the year of the dragon – according to Ch inese tradition, a powerful sign of energy, 
enthusiasm, and moving forward. Unsurprisingly, therefore, in this year of spirit and vigour, the value of a rule-based system has proved its worth. Significantly, the Members of the WTO have 
continued to adhere to their commitments to the WTO, and thereby provided much needed 
stability.  
The dispute settlement system is an integral part  of the WTO. A rule-based system cannot survive 
if its rules are not capable of being interpreted and adjudicated. This is the institutional contribution of the Appellate Body, within the scheme of the Dispute Settlement Understanding. 
And here too, the system has continued to functi on smoothly, resolving disputes by recourse to 
the rule of law. 
 2012 was a year in which the Appellate Body's workload remained intense. The Appellate Body 
circulated reports in six disputes and one of our former Appellate Body members was Arbitrator in 
an Article 21.3(c) arbitration concerning the reasonable period of time for implementation.  
Two of the disputes for which reports were circulated in 2012 concerned appeals filed in 2011. At 
the beginning of the year, the Appellate Body circulated its reports in China – Raw Materials , which 
concerned China's Accession Protocol and the ob ligations contained therein. Subsequently, in 
March 2012, the Appellate Body issued its report in US – Large Civil Aircraft , closing a chapter in 
the long-running trade dispute over government subsidies to the aircraft industry between the 
United States and the European Union. Indeed, it appears that this will be a story with many chapters as Article 21.5 proceedings were initiated in this dispute, as well as in the case of EC and 
certain member States – Large Civil Aircraft , during the course of 2012. The Airbus and Boeing 
dispute cases have undoubtedly been the largest, mo st challenging, and most costly legal disputes 
in the WTO's history. Both the Appellate Body report in US – Large Civil Aircraft  and the earlier 
report in EC and certain member States – Large Civil Aircraft  addressed important issues arising 
under the SCM Agreement.  In a rare course of events, three disputes regarding technical barriers to trade ( US – Clove 
Cigarettes , US – Tuna II (Mexico) , and US – COOL ) were appealed in succession in 2012, and 
required the Appellate Body to address several provisions of the TBT Agreement that had not 
previously been addressed in appellate proceedings. The Appellate Body was thus faced with 
novel, challenging issues, which needed to be resolved in a coherent and harmonious manner 
across the three cases. These three disputes concerned technical regulations adopted by the United States and each case raised complex issues relating to allegations of discriminatory 
treatment and the necessity of the challe nged measures. Notably, the parties in US – Tuna II 
(Mexico)  and US – COOL  are also parties to the NAFTA (that is, Canada, Mexico, and the 
United States), but nonetheless chose to bring the disputes to the WTO. This once again confirms that WTO Members continue to value the WTO's dispute settlement mechanism and the role it 
plays in providing security and predictabi lity to the multilateral trading system. 
 The last report circulated by the Appellate Body in 2012 was China – GOES , involving the 
Anti-Dumping and the SCM Agreements, which remain two of the WTO covered agreements that 
are most frequently the subject of disputes.   
Also, in December 2012, Giorgio Sacerdoti, a former Appellate Body colleague, issued an Award in 
the Article 21.3(c) arbitration to determine the re asonable period of time for implementation for 
the United States in the US – COOL dispute.  
 
2012 saw the departure of an esteemed colleague, Shotaro Oshima, who resigned from the 
Appellate Body for personal reasons in April 2012. Shotaro was a respected Member, with whom it was a great privilege and honour to serve on the Appellate Body. Following a rigorous selection 
process, Seung Wha Chang of Korea was appointe d by the Dispute Settlement Body to serve for 
four years as Appellate Body Member, commencing 1 June 2012. Seung Wha was sworn in on 13 June 2012, and we are delighted to welcome him to the Appellate Body. 
 WT/AB/18 
 
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  Currently Professor of Law at Seoul National University, Seung Wha teaches international trade law 
and international arbitrations. He has served on several WTO dispute settlement panels, as well as on several arbitral tribunals dealing with commercial matters. In 2009, he was appointed by the International Chamber of Commerce (ICC) as a member  of the International Court of Arbitration.  
 
It is our great fortune that Shotaro has been replaced by a new Member who is equally distinguished and whose contribution to the A ppellate Body will surely be instrumental.  
 
My colleagues, Ujal Singh Bhatia and Thomas R. Graham, recently completed their first full year as Appellate Body Members. Their dedication, kn owledge, and previous experience have been 
invaluable to the task before us. Since the membership of the Appellate Body has changed 
significantly over the last two years, the seven Members met on several occasions during 2012 to 
exchange views on various legal issues and past case law and to discuss future challenges for the Appellate Body. 
 
The workload at the panel stage is currently heavy. Panels are resolving complex disputes. The Appellate Body should expect intense appeal activity in the upcoming years. Even if fewer appeals 
are brought this year, 2013 is likely to be challe nging in terms of legal issues involved in the 
disputes.   The selection process for the new Member of the Appellate Body and adoption of the 
Appellate Body reports were carried out with the utmost efficiency and propriety by the Dispute 
Settlement Body. For this I wish to recognize the leadership of Ambassadors Johansen and Bashir as Chairs of the DSB, the contribution of th e Director-General, Pascal Lamy, and the support 
provided to the process by all WTO Members. Indeed, the Appellate Body and the WTO dispute 
settlement system more generally have been able to  function effectively thanks to the support of 
WTO Members and of many individuals in the WTO Secretariat.  
 
All the energy and enthusiasm that Chinese tradition foresaw for 2012 will hopefully remain, for the Appellate Body, through 2013, the year  of the snake – the "little dragon". 
 
 
Yuejiao Zhang Chair, Appellate Body 
 WT/AB/18 
 
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  WORLD TRADE ORGANIZATION 
APPELLATE BODY 
ANNUAL REPORT FOR 2012 
1  INTRODUCTION 
This Annual Report summarizes the activities of th e Appellate Body and its Secretariat for the year 
2012. 
Dispute settlement in the World Trade Organization (WTO) is regulated by the Understanding on 
Rules and Procedures Governing the Settlement of Disputes (DSU), which is contained in Annex 2 
of the Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement). Article 3.2 of the DSU states the overarching purp oses of the dispute settlement system. According 
to Article 3.2, "[t]he dispute settlement system  of the WTO is a central element in providing 
security and predictability to the multilateral trading system." Further, Article 3.2 provides that the 
dispute settlement system "serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing prov isions of those agreements in accordance with 
customary rules of interpretation of public international law." The dispute settlement system is 
administered by the Dispute Settlement Body (D SB), which is composed of all WTO Members. 
A WTO Member may have recourse to the rules and procedures established in the DSU if it 
"considers that any benefits accruing to it directly or indirectly under the covered agreements are 
being impaired by measures taken by another Member".
1 The DSU procedures apply to disputes 
arising under any of the covered agreements listed in Appendix 1 to the DSU and include the WTO Agreement and all the multilateral agreements  annexed to it relating to trade in goods
2, 
trade in services3, and the protection of intellectual property rights4, as well as the DSU itself. 
Pursuant to Article 1.2 and Appendix 2 of the DSU, where the covered agreements contain special or additional rules and procedures, these rules an d procedures prevail over those contained in the 
DSU to the extent that there is an inconsistency. The application of the DSU to disputes under the 
plurilateral trade agreements annexed to the WTO Agreement
5 is subject to the adoption of 
decisions by the parties to these agreements setting out the terms for its application to the 
individual agreement.6 
Proceedings under the DSU take place in stages. In the first stage, Members are required to hold 
consultations with a view to reaching a mutually agreed solution to the matter in dispute.7 If these 
consultations fail to realize a mutually agreed solution, the dispute may advance to the 
adjudicative stage in which the complaining Member requests that the DSB establish a panel to 
examine the matter.8 Panelists are chosen by agreement of  the parties, based on nominations 
proposed by the Secretariat.9 However, if the parties cannot agree, either party may request the 
WTO Director-General to determine the composition of the panel.10 Panels shall be composed of 
well-qualified governmental and/or non-governmental individuals with expertise in international trade law or policy.
11 In discharging its adjudicative function, a panel is required to "make an 
objective assessment of the matter before it, including an objective assessment of the facts of the 
case and the applicability of and conformity with  the relevant covered agreements, and make such 
other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements."
12 The panel process includes written submissions by the 
                                               
1 Article 3.3 of the DSU. 
2 Annex 1A to the WTO Agreement . 
3 Annex 1B to the WTO Agreement . 
4 Annex 1C to the WTO Agreement. 
5 Annex 4 to the WTO Agreement. 
6 Appendix 1 to the DSU. 
7 Article 4 of the DSU. 
8 Article 6 of the DSU. 
9 Article 8.6 of the DSU. 
10 Article 8.7 of the DSU. 
11 Article 8.1 of the DSU. 
12 Article 11 of the DSU. WT/AB/18 
 
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  main parties and also by third parties that have no tified their interest in the dispute to the DSB. 
Panels usually hold two meetings with the parties, one of which also includes a session with third parties. Panels set out their factual and legal findings in an interim report that is subject to comments by the parties. The final report is first issued to the parties, and is subsequently 
circulated to all WTO Members in the three official languages of the WTO (English, French, and 
Spanish), at which time it is also posted on the WTO website. 
Article 17 of the DSU establishes a standing Appe llate Body. The Appellate Body is composed of 
seven Members who are each appointed to a four-y ear term, with a possibility to be reappointed 
once. The expiration dates of terms are staggered in order to ensure that not all Members begin and complete their terms at the same time. Memb ers of the Appellate Body must be persons of 
recognized authority; with demonstrated expertise in law, international trade, and the subject 
matter of the covered agreements generally; and no t be affiliated with any government. Moreover, 
the Appellate Body membership shall be broadly representative of the membership of the WTO. 
Appellate Body Members elect a Chairperson to serve a one-year term, which can be extended for 
an additional one-year period. The Chairperson is responsible for the overall direction of Appellate 
Body business. Each appeal is heard by a Division of three Appellate Body Members. The process for the selection of Divisions is designed to en sure randomness, unpredictability, and opportunity 
for all Members to serve, regardless of their national origin. To ensure consistency and coherence 
in decision-making, Divisions exchange views with  the other four Members of the Appellate Body 
before finalizing Appellate Body reports. The A ppellate Body receives legal and administrative 
support from its Secretariat. The conduct of Members of the Appellate Body and its staff is 
regulated by the Rules of Conduct for the Understanding on Rules and Procedures Governing the 
Settlement of Disputes (Rules of Conduct).
13 These Rules emphasize that Appellate Body Members 
shall be independent, impartial, and avoid any direct or indirect conflict of interest.  
Any party to a dispute, other than third parties, may appeal a panel report to the Appellate Body. 
WTO Members that were third parties at the panel stage may also participate and make written and oral submissions in the appellate proceedings, but they may not appeal the panel report. The 
appeal is limited to issues of law covered in the panel report and legal interpretations developed by 
the panel. Appellate proceedings are conducted in accordance with the procedures established in the DSU and the Working Procedures for Appellate Review
14 (Working Procedures), drawn up by 
the Appellate Body in consultation with the Chai rman of the DSB and the Director-General of the 
WTO, and communicated to WTO Members for their in formation. Proceedings involve the filing of 
written submissions by the participants and the thir d participants, as well as an oral hearing. The 
Appellate Body report is to be circulated to WTO Members in the three official languages within 90 
days of the date when the appeal was initiated, and is posted on the WTO website immediately 
upon circulation to Members. In its report, the Appellate Body may uphold, modify, or reverse the legal findings and conclusions of the panel.  
Panel and Appellate Body reports must be adop ted by WTO Members acting collectively through 
the DSB. Under the reverse consensus rule, a report is adopted by the DSB unless all WTO Members present at the meeting formally object to its adoption.
15 Upon adoption, Appellate Body 
reports and panel reports (as modified by the Appellate Body) become binding upon the parties. 
Following the adoption by the DSB of a panel or Appellate Body report that includes a finding of 
inconsistency of a measure of the responding Member with its WTO obligations, Article 21.3 of the DSU provides that the responding Member should, in principle, comply immediately. However, 
where immediate compliance is "impracticable", the responding Member shall have a reasonable 
period of time to implement the DSB's recommendations and rulings. The "reasonable period of time" may be determined by the DSB, by agreem ent between the parties, or through arbitration 
pursuant to Article 21.3(c) of the DSU. In such arbitration, a guideline for the arbitrator is that the 
reasonable period of time to implement panel or Appellate Body recommendations should not exceed 15 months from the date of adoption of a panel or Appellate Body report. However, that 
time may be shorter or longer, depending upon the particular circumstances. Arbitrators have 
indicated that the reasonable period of time shall be the shortest time possible in the 
                                               
13 The Rules of Conduct, as adopted by the DSB on 3 December 1996 (WT/DSB/RC/1), are directly 
incorporated into the Working Procedures for Appell ate Review (WT/AB/WP/6), as Annex II thereto. (See 
WT/DSB/RC/2, WT/AB/WP/W/2) 
14 Working Procedures for Appellate Review, WT/AB/WP/6. 
15 Articles 16.4 and 17.14 of the DSU. WT/AB/18 
 
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  implementing Member's legal system. To date, arbi trations pursuant to Article 21.3(c) of the DSU 
have been conducted by current or former Appellate Body Members acting in an individual capacity. 
Where the parties disagree "as to existence or co nsistency with a covered agreement of measures 
taken to comply", the matter may be referred to the original panel in what is known as 
"Article 21.5 compliance proceedings". The report of the panel in the Article 21.5 compliance proceedings may be appealed. Upon their adoption  by the DSB, panel and Appellate Body reports 
in Article 21.5 compliance proceedings become binding on the parties. 
If the responding Member does not bring its WTO-inconsistent measure into compliance with its 
obligations under the covered agreements within the reasonable period of time, the complaining Member may request negotiations with the responding Member with a view to finding mutually 
acceptable compensation as a temporary and voluntary alternative to full compliance. 
Compensation is subject to acceptance by the complaining Member, and must be consistent with the WTO agreements. If no satisfactory compensa tion is agreed upon, the complaining Member 
may request authorization from the DSB, pursua nt to Article 22 of the DSU, to suspend the 
application of concessions or other obligations under the WTO agreements to the responding Member. The level of the suspension of concessi ons or other obligations authorized by the DSB 
shall be equivalent to the level of the nullification or impairment resulting from non-compliance 
with the DSB recommendations and rulings. The responding Member may request arbitration under Article 22.6 of the DSU if it objects to the le vel of suspension proposed or considers that the 
principles and procedures concerning the sector or covered agreement to which the suspension 
may apply have not been followed. In principle, the suspension of concessions or other obligations 
must relate to the same trade sector or agreement as the measure found to be inconsistent. However, if this is impracticable or ineffective for the complaining Member, and if circumstances 
are serious enough, the complaining party may seek authorization to suspend concessions with 
respect to other sectors or agreements. The arbitration under Article 22.6 shall be carried out by the original panel, if its members are available.  Compensation and the suspension of concessions 
or other obligations are temporary measures; neither is to be preferred to full implementation.
16  
A party to a dispute may request good offices, conciliation, or mediation as alternative methods of 
dispute resolution at any stage of dispute settlement proceedings.17 In addition, under Article 25 of 
the DSU, WTO Members may have recourse to arbitration as an alternative to the regular 
procedures set out in the DSU.18 Recourse to arbitration, including the procedures to be followed in 
such arbitration proceedings, is subject to mutual agreement of the parties.19 
2  COMPOSITION OF THE APPELLATE BODY 
The Appellate Body is a standing body composed of seven Members appointed by the DSB for a 
term of four years with the possibility of be ing reappointed once for another four-year term. 
On 7 January 2012, Mr. Shotaro Oshima expressed his intention to resign for personal reasons 
from the office of Member  of the Appellate Body.20 Pursuant to Rule 14 of the Working Procedures, 
Mr. Oshima's resignation took effect 90 days from the date of his letter of resignation, that is, 6 April 2012. As originally Mr. Oshima's term of office was due to expire on 31 May 2012, it was agreed that the replacement for Mr. Oshima be appointed for a four-year term beginning 
1 June 2012 or as soon thereafter as possible.
21 
The selection process for appointment of a new Member to replace Mr. Oshima was launched on 
22 February 2012. On the same day, and based on the procedures set forth in document 
WT/DSB/1, the DSB established a Selection Committee consisting of the Director-General and the 
                                               
16 Article 22.1 of the DSU. 
17 Article 5 of the DSU. 
18 There has been only one recourse to Article 25 of the DSU and it was not in lieu of panel or 
Appellate Body proceedings. Rather, the purpose of that  arbitration was to set an amount of compensation 
pending full compliance by the responding Member. (See Award of the Arbitrators, US – Section 110(5) 
Copyright Act (Article 25) ) 
19 Articles 21 and 22 of the DSU apply mutatis mutandis  to decisions by arbitrators. 
20 WT/DSB/56. 
21 WT/DSB/M/312. WT/AB/18 
 
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  2012 Chairpersons of the General Council, Goods Council, Services Council, TRIPS Council, and the 
DSB.22 
A deadline was set of 30 March 2012 for Members to nominate candidates for this position. Five 
candidates were proposed by four Members, name ly, Japan (two candidates), Kenya, Korea, and 
Thailand. Subsequently, Kenya informed Members of its decision to withdraw its candidate.23 
The Selection Committee conducted interviews with the remaining four candidates in April 2012. 
Based on the recommendations of the Selection Committee, at its meeting on 24 May 2012, the 
DSB decided to appoint Mr. Seung Wha Chang (Korea) to serve for four years as Appellate Body 
Member commencing on 1 June 2012.24 Mr. Chang was sworn in on 13 June 2012. 
The first four-year term of Ms. Yuejiao Zhang expired on 31 May 2012. Ms. Zhang expressed her 
interest and willingness to be reappointed for a second four-year term. No Member expressed any 
reservations regarding the reappointment of Ms. Zhang during consultations conducted by the 
Chair of the DSB. In light of this, the DSB re appointed Ms. Zhang for a second four-year term 
beginning on 1 June 2012.25 
The composition of the Appellate Body in 2012 and the respective terms of office of its Members 
are set out in Tables 1A and 1B. 
Table 1A:  Composition of the Appe llate Body 1 January to 31 May 2012 
Name Nationality Term(s) of office 
Ujal Singh Bhatia India 2011–2015 
Thomas R. Graham United States 2011–2015 
Shotaro Oshima* Japan 2008–2012 
Ricardo Ramírez-Hernández Mexico 2009–2013 
David Unterhalter South Africa 2006–2009 
2009–2013 
Peter Van den Bossche Belgium 2009–2013 
Yuejiao Zhang China 2008–2012 
 * As noted above, Mr. Oshima's resignation became effective on 6 April 2012. 
 
 
Table 1B:  Composition of the A ppellate Body as of 1 June 2012 
Name Nationality Term(s) of office 
Ujal Singh Bhatia India 2011–2015 
Seung Wha Chang Korea 2012–2016 
Thomas Graham United States 2011–2015 
Ricardo Ramírez-Hernández Mexico 2009–2013 
David Unterhalter South Africa 2006–2009 
2009–2013 
Peter Van den Bossche Belgium 2009–2013 
Yuejiao Zhang China 2008–2012 
2012–2016 
 
                                               
22 WT/DSB/M/312. 
23 JOB/DSB/CV12/1/Rev.1. 
24 WT/DSB/M/316. 
25 WT/DSB/M/316. WT/AB/18 
 
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  Pursuant to Rule 5.1 of the Working Procedures , the Members of the Appellate Body elected Ms. 
Yuejiao Zhang to serve as Chair of the Appellate  Body for the period 11 December 2011 to 31 May 
2012.26 Ms. Zhang was subsequently re-elected by Appellate Body Members to serve as Chair for 
the period 1 June to 31 December 2012.27 
Biographical information about the Members of the Appellate Body is provided in Annex 1A. A list 
of former Appellate Body Members and Ch airpersons is provided in Annex 2. 
The Appellate Body receives legal and administrative support from the Appellate Body Secretariat, 
in accordance with Article 17.7 of the DSU. The Secretariat currently comprises a Director and 
eleven lawyers, one administrative assistant, an d three support staff. Werner Zdouc has been the 
Director of the Appellate Body Secretariat since 2006. 
3  APPEALS 
Under Rule 20(1) of the Working Procedures, and in  accordance with Article 16(4) of the DSU, an 
appeal is commenced by giving notice in writing to the DSB and filing a Notice of Appeal with the Appellate Body Secretariat. Rule 23(1) of the Wo rking Procedures allows a party to the dispute 
other than the initial appellant to join the appeal, or appeal on the basis of other alleged errors, by 
filing a Notice of Other Appe al within 5 days of the fili ng of the Notice of Appeal. 
Five appeals were filed in 2012. Three of the appeals included an "other appeal". All five appeals 
related to original proceedings. Further information regarding the five appeals filed in 2012 is 
provided in Table 2. 
Table 2:  Appeals filed in 2012 
Panel report 
appealed Date of appeal Appellant a Document 
symbol Other 
appellant b Document 
symbol 
US – Clove Cigarettes 5 January 2012 United States WT/DS406/6 - - - - - - 
US – Tuna II (Mexico) 20 January 2012 United States WT/DS381/10 Mexico WT/DS381/11 
US – COOL (Canada) 23 March 2012 United States WT/DS384/12 Canada WT/DS384/13 
US – COOL (Mexico) 23 March 2012 United States WT/DS386/11 Mexico WT/DS386/12 
China – GOES 20 July 2012 China WT/DS414/5 - - - - - - 
a Pursuant to Rule 20(1) of the Working Procedures . 
b Pursuant to Rule 23(1) of the Working Procedures . 
 
Information on the number of appeals filed each year since 1995 is provided in Annex 3. Chart 1, 
overleaf, shows the number of appeals fi led each year between 1995 and 2012. 
                                               
26 WT/DSB/55. 
27 WT/DSB/57. WT/AB/18 
 
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  Chart 1:  Total number of appeals 1995-2012 
 
 
It should be noted that, due to the heavy workload facing the Appellate Body and in order to 
provide greater flexibility in scheduling any possible appeals, for four panel reports circulated in 
2011 the DSB adopted decisions to extend the 60-day period in Article 16.4 of the DSU to adopt or appeal the panel report. In particular, in US – Clove Cigarettes
28, the DSB extended the 60-day 
period until 20 January 2012 and the panel report was appealed on 5 January 2012; in   
US – Tuna II (Mexico)29, the DSB extended the 60-day period until 20 January 2012 and the panel 
report was appealed on 5 January 2012; and, finally, in US – COOL (Canada)30 and US – COOL 
(Mexico)31, the DSB extended the 60-day period until 23 March 2012 and the panel reports were 
subsequently appealed on 23 March 2012. Nine panel reports were circulated during 2012.32 The 
deadline to appeal two of these panel reports did not expire until 2013.33 Six of the panel reports 
circulated in 2012 were adopted by the DSB without being appealed.34 Thus, five out of the 
11 panel reports for which the 60-day deadline expired in 2012 were appealed, yielding an appeal 
rate of 45% for the year 2012. 
The overall average of panel reports that have  been appealed from 1995 to 2012 is 70%. 
A breakdown of the percentage of panel reports appealed each year is provided in Annex 4. 
4  APPELLATE BODY REPORTS 
Nine Appellate Body reports were circulated during 2012, the details of which are summarized in 
Table 3. As of the end of 2012, the Appellate Body has circulated a total of 117 reports. 
                                               
28 See WT/DS406/5 and WT/DSB/M/303. 
29 See WT/DS381/9 and WT/DSB/M/306. 
30 See WT/DS384/11 and WT/DSB/M/310. 
31 See WT/DS386/10 and WT/DSB/M/310. 
32 These reports were: Dominican Republic – Safeguard Measures ; US – Shrimp and Sawblades ; China – 
GOES ; China – Electronic Payment Services ; Canada – Feed-In Tariff Program ; and Canada – Renewable 
Energy . We have not counted the Panel Report in Korea – Bovine Meat (Canada)  because the parties reached a 
mutually agreed solution before the Panel circulated its report on 3 July 2012. The circulated report only outlines the procedural background of the dispute. 
33 Although the panel reports in Canada – Feed-In Tariff Program  and Canada – Renewable Energy were 
circulated in 2012, the 60-day deadline for adoption or appeal of these reports did not expire until 2013. 
34 The panel reports in Dominican Republic – Safeguard Measures , US – Shrimp and Sawblades , and 
China – Electronic Payment Services were adopted by the DSB on 22 February, 23 July, and 31 August 2012, 
respectively. 
WT/AB/18 
 
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  Table 3:  Appellate Body reports circulated in 2012 
Case Title Document symbol Date circulated Date adopted  
by the DSB 
China –  Raw Materials 
(United States) * WT/DS394/AB/R 30 January 2012 22 February 2012 
China –  Raw Materials 
(European Union) * WT/DS395/AB/R 30 January 2012 22 February 2012 
China –  Raw Materials 
(Mexico) * WT/DS398/AB/R 30 January 2012 22 February 2012 
US – Large Civil Aircraft 
(2nd complaint) WT/DS353/AB/R 12 March 2012 23 March 2012 
US – Clove Cigarettes WT/DS406/AB/R 4 April 2012 24 April 2012 
US – Tuna II (Mexico) WT/DS381/AB/R 16 May 2012 13 June 2012 
US – COOL (Canada) ** WT/DS384/AB/R 29 June 2012 23 July 2012 
US – COOL (Mexico) ** WT/DS386/AB/R 29 June 2012 23 July 2012 
China – GOES WT/DS414/AB/R 18 October 2012 16 November 2012 
* These three Appellate Body reports we re circulated in a single document. 
** These two Appellate Body reports were circulated in a single document. 
 
 
The following table shows which WTO agreements were addressed in the Appellate Body reports circulated in 2012. 
Table 4: WTO Agreements addressed in A ppellate Body reports circulated in 2012 
Case Document symbol WTO agreements covered 
China –  Raw Materials (United States) WT/DS394/AB/R China's Accession Protocol 
GATT 1994 
DSU 
China –  Raw Materials (European Union) WT/DS395/AB/R China's Accession Protocol 
GATT 1994 
DSU 
China –  Raw Materials (Mexico) WT/DS398/AB/R China's Accession Protocol 
GATT 1994 
DSU 
US – Large Civil Aircraft (2nd complaint) WT/DS353/AB/R SCM Agreement 
DSU 
US – Clove Cigarettes WT/DS406/AB/R TBT Agreement 
GATT 1994 
DSU 
US – Tuna II (Mexico) WT/DS381/AB/R TBT Agreement 
GATT 1994 
DSU 
US – COOL (Canada) WT/DS384/AB/R TBT Agreement 
GATT 1994 
DSU 
US – COOL (Mexico) WT/DS386/AB/R TBT Agreement 
GATT 1994 
DSU 
China – GOES WT/DS414/AB/R Anti-Dumping Agreement 
SCM Agreement 
DSU 
 WT/AB/18 
 
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  Chart 2 shows the number of times specific WTO agreements have been addressed in the 
117 Appellate Body reports circulated from 1996 through 2012. 
Chart 2:  WTO agreements addressed in appeals 1996-2012 
 
 
Annex 5 contains a breakdown by year of the frequency with which the specific WTO agreements 
have been addressed in appeals from 1996 through 2012. 
The Appellate Body's findings and conclusions in the Appellate Body reports circulated in 2012 are 
summarized below. 
 
 4.1  Appellate Body Reports, China – Measures Related to the Exportation of Various 
Raw Materials , WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R 
This dispute concerned various measures imposed by China on the export of certain raw materials 
including bauxite, coke, fluorspar, magnesium, ma nganese, silicon carbide, silicon metal, yellow 
phosphorus, and zinc. China is a leading producer  of these raw materials, and also uses them 
domestically in a number of applications, including the production of steel, aluminium, and a variety of chemicals, which are in turn used in the production of various consumer goods and technology products. 
4.1.1  The Panel's terms of reference 
The Appellate Body began by examining China's appe al of the Panel's finding that Section III of the 
complainants' panel requests, entitled "Additional Restraints Imposed on Exportation", provided a 
brief summary of the legal basis of the complaint sufficient to present the problem clearly, as 
required under Article 6.2 of the DSU. China requested the Appellate Body to reverse this finding, and to find instead that Section III of the panel requests did not comply with Article 6.2 of the 
DSU, with the exception of one claim under  Article X:1 of the GATT 1994 regarding the 
non-publication of measures relating to the zinc export quota. 
The Appellate Body recalled that, in order to determine whether a panel request is sufficiently 
precise to comply with Article 6.2 of the DSU, a panel must scrutinize carefully the language used 
in the panel request. The Appellate Body added that a defective panel request may impair a 
panel's ability to perform its adjudicative function within the strict timeframes contemplated in the DSU and, thus, may have implications for the prompt settlement of a dispute in accordance with 
Article 3.3 of the DSU.  
Turning to the panel requests at issue in this dispute, the Appellate Body noted that, whereas 
Sections I and II of the panel requests each a ddressed a single form of export restriction, WT/AB/18 
 
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  Section III covered a wider set of allegations directed at what was referred to in the title of 
Section III as "Additional Restraints Imposed on Exportation". The Appellate Body further noted that Section III contained a number of narrative paragraphs with several allegations of violation, a bullet point list of 37 legal instruments, and a final paragraph consisting of a list of 13 treaty 
provisions allegedly breached. In particular, the complainants – the United States, the 
European Union, and Mexico – stated in Section III of the panel requests that these measures were inconsistent with Articles VIII:1(a) and VIII:4, Articles X:1 and X:3(a), and Article XI:1 of the 
GATT 1994 and Paragraphs 2(A)2, 5.1, 5.2 and 8.2 of Part I of China's Accession Protocol, as well 
as China's obligations under the provisions of Paragraph 1.2 of Part I of the Accession Protocol. 
The Appellate Body found that Section III of the panel requests did not make clear which 
allegations of error pertained to which particular measure or set of measures identified in the panel 
requests. Furthermore, the Appellate Body noted th at it was unclear whether each of the listed 
measures related to one specific allegation described in the narrative paragraphs, or to several or even all of these allegations, and whether each  of the listed measures allegedly violated one 
specific provision of the covered agreements, or several of them. 
In the light of the broad range of obligations cont ained in Articles VIII:1(a), VIII:4, X:1, X:3(a), 
and XI:1 of the GATT 1994, Paragraphs 2(A)2, 5.1, 5.2, and 8.2 of Part I of China's Accession 
Protocol, and Paragraphs 83, 84, 162, and 165 of  China's Accession Working Party Report, and the 
failure to provide sufficiently clear linkages between the 37 challenged measures and the 13 treaty provisions allegedly violated, the Appellate Body found that Section III of the complainants' panel requests did not satisfy the requirement in Article 6.2 of the DSU to "provide a brief summary of 
the legal basis of the complaint sufficient to present the problem clearly". 
Consequently, the Appellate Body found that the Panel erred in making findings 
regarding claims allegedly identified in Se ction III of the complainants' panel requests. 
The Appellate Body therefore declared moot and of no legal effect th e Panel's findings in 
paragraphs 8.4(a)-(d), 8.11(a)-(e), and 8.18(a )-(d) of the Panel Reports in respect of 
claims concerning export quota administrati on and allocation; paragraphs 8.5(a)-(b), 
8.12(a)-(b), and 8.19(a)-(b) in respect of  claims concerning export licensing 
requirements; paragraphs 8.6(a)-(b), 8.13(a)- (b), and 8.20(a)-(b) in respect of claims 
concerning a minimum export price requirement; and paragraphs 8.4(e) and 8.18(e) in 
respect of claims concerning fees and fo rmalities in connection with exportation. 
4.1.2  The Panel's recommendations 
The Appellate Body then turned to address China's appeal regarding the Panel's recommendations 
concerning export duties and export quotas. China sought review of the Panel's recommendations 
"to the extent that they apply to annual replac ement measures" adopted after the establishment of 
the Panel on 21 December 2009. China argued that the complainants had excluded such measures 
from the scope of the dispute and, hence, by  making recommendations extending to such 
measures, the Panel acted inconsistently with its obligations under Article 7.1 of the DSU; failed to 
make an objective assessment of the matter under Article 11 of the DSU; and made recommendations on measures that are not part of the matter, inconsistently with Article 19.1 of the DSU. 
In the final section of these reports, the Panel concluded that "[i]n respect of findings concerning 
export duties and export quotas, the Panel found that the series of measures operating collectively has resulted in the imposition of export duties or export quotas that are inconsistent with China's 
WTO obligations. The Panel, therefore, recommend s that the Dispute Settlement Body requests 
China to bring its measures into conformity with its WTO obligations such that the 'series of measures' does not operate to bring about a WTO-inconsistent result". 
The Appellate Body referred, as did the Panel, to the groups of measures challenged by the 
complainants as a whole, and in force at the time of the Panel's establishment, as the various "series of measures". The Appellate Body specified that it would use the term "series of measures" to describe, collectively, the entire hierarchy of legal instruments, that is, the framework 
legislation, the regulations implementing this legislation, and the specific legal instrument or 
instruments identifying the individual quotas or  duties imposed on each product in 2009. The 
Appellate Body noted that, while the framework le gislation and implementing regulations remained WT/AB/18 
 
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  in effect, certain of the legal instruments setting out an export quota amount or an export duty 
rate identified by the complainants in their panel requests had expired or been replaced during the 
course of the Panel proceedings. 
The Appellate Body found that the Panel correctly described the object of the complainants' 
challenge as one with respect to the measures through which export duties and quotas were 
imposed on particular raw materials at the time of the establishment of the Panel in 2009. Thus, the Appellate Body did not consider that the Panel erred in setting out to make recommendations 
on the "series of measures" imposing export duties or export quotas in force at the date of the 
Panel's establishment. Moreover, in the light of the Panel's express statement that it would make recommendations on measures "in force at the date of the Panel's establishment", and that it would not make findings on the measures imposing specific duty rates and quota levels for 2010, 
the Appellate Body considered that the Panel made no express recommendations regarding 
measures excluded from the Panel's terms of reference by the complainants.  
Subsequently, the Appellate Body addressed whether the recommendations that the Panel made 
regarding the "series of measures" in force in 2009 had consequences for the measures imposing 
specific duty rates and quota levels for 2010, or indeed any measures imposing export duties or quotas on these products in the future. In this regard, the Appellate Body did not consider that a 
finding that was made with respect to a "series of measures" as it existed at the time the Panel 
was established could not have consequences for measures adopted in 2010 or thereafter through the effect of the recommendation made by a pane l or the Appellate Body after adoption by the 
DSB. The Appellate Body explained that, while a finding by a panel concerns a measure as it 
existed at the time the panel was established, a recommendation is prospective in nature in the 
sense that it has an effect on, or consequences for, a WTO Member's implementation obligations that arise after the adoption of a panel an d/or Appellate Body report by the DSB. 
The Appellate Body noted that, in making its recommendations, the Panel appeared to be 
concerned about making recommendations on what it viewed to be "expired" measures. The Appellate Body recalled that it had previously in dicated that the fact that a measure has expired 
"may affect" what recommendation a panel may make, but does not mean that a panel is 
precluded from making a recommendation on such a measure in a particular case. The Appellate Body added that when a challenge is brought agai nst a group or "series of measures" comprised of 
basic framework legislation and implementing regu lations, which had not expired, and specific 
measures imposing export duty rates or export quota amounts for particular products on an 
annual or time-bound basis, a failure by a panel to make recommendations would effectively mean 
that a finding of inconsistency involving such measures would not result in implementation 
obligations for a responding Member, and in that sense would merely be declaratory. 
For these reasons, the Appellate Body did not agree with China that the Panel acted 
inconsistently with its obligations under Article 7.1, Article 11 of the DSU, and 
Article 19.1 of the DSU in recommending that the DSB request China "to bring its 
measures into conformity with its WTO obli gations such that the 'series of measures' 
does not operate to bring about a WTO-inconsistent result". 
4.1.3  Conditional other appeals of the Unit ed States, Mexico, and the European Union 
In their other appeals, the United States and Me xico submitted a conditional appeal in the event 
that the Appellate Body were to reverse the Panel's recommendations in paragraphs 8.8, 8.15, and 8.22 of the Panel Reports and find that no recommendation should have been made on the 
"series of measures" as they existed on the date of Panel establishment. The European Union also 
submitted a conditional appeal in the event the Appe llate Body were to accept the relevant ground 
of appeal raised by China, and also reject  the relevant other appeals submitted by the 
United States and Mexico. 
As the condition on which the United States  and Mexico's request was premised was not 
met, the Appellate Body re frained from addressing these conditional appeals. WT/AB/18 
 
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  4.1.4  Applicability of Article XX of the GATT 1994 
China claimed that Article XX of the GATT 1994 was available as a defence to China in relation to 
export duties found to be inconsistent with Ch ina's obligations under Paragraph 11.3 of China's 
Accession Protocol. 
The Appellate Body explained that, by its terms,  Paragraph 11.3 of China's Accession Protocol 
requires China to "eliminate all taxes and charges applied to exports" unless one of the following conditions is satisfied: (i) such taxes and charges are "specifically provided for in Annex 6 of 
[China's Accession] Protocol"; or (ii) such taxes and charges are "applied in conformity with the 
provisions of Article VIII of the GATT 1994". 
The Appellate Body noted, first, that Annex 6 of China's Accession Protocol, "specifically provides 
for" maximum export duty levels on 84 listed products. The Note to Annex 6 further clarifies that 
the maximum rates set out in Annex 6 "will not be exceeded" and that China will "not increase the 
presently applied rates, except under exceptiona l circumstances". The Appellate Body considered 
that this language cannot be read as indicating that China can have recourse to the provisions of 
Article XX of the GATT 1994 either to justify the impo sition of export duties on products that are 
not listed in Annex 6 or to justify the imposition of export duties on listed products in excess of the 
maximum levels set forth in Annex 6. 
Regarding Article VIII of the GATT 1994, China subm itted that the reference to this provision in 
Paragraph 11.3 confirms the availability of Arti cle XX of the GATT 1994. The Appellate Body noted 
that, although Article VIII covers "all fees and charges of whatever character" imposed by WTO Members "on or in connection with importation or exportation", it expressly excludes export duties, 
which were at issue in the dispute. The Appellate  Body found therefore that export duties cannot 
be "applied in conformity" with Article VIII; nor can they be found to be inconsistent with Article VIII of the GATT 1994. For th e Appellate Body, therefore, the fact that Article XX may be 
invoked to justify those fees and charges regulated under Article VIII did not mean that it could 
also be invoked to justify export duties, which are not regulated under Article VIII. 
The Appellate Body then turned to examine the context of Paragraph 11.3 of China's Accession 
Protocol. The Appellate Body noted that Paragr aphs 11.1 and 11.2 of the Protocol contain the 
phrase "in conformity with the GATT 1994", but th at this is not the case for Paragraph 11.3. The 
Appellate Body also noted that Paragraph 11.1 refers  to "customs fees and or charges" in general, 
and that Paragraph 11.2 refers in turn to "internal taxes and charges", while Paragraph 11.3 refers 
specifically to the elimination of "taxes and charges applied to exports". Given the references to 
the GATT 1994 in Paragraphs 11.1 and 11.2, and th e differences in the subject matter and nature 
of the obligation covered by these provisions, the Appellate Body considered that the absence of a 
reference to the GATT 1994 in Paragraph 11.3 furt her supported its interpretation that China may 
not have recourse to Article XX to justify a breach of its commitment to eliminate export duties under Paragraph 11.3. Moreover, as China's obligation  to eliminate export duties arises exclusively 
from China's Accession Protocol, and not from th e GATT 1994, the Appellate Body considered it 
reasonable to assume that, had there been a common intention to provide access to Article XX of the GATT 1994 in this respect, language to that effect would have been included in Paragraph 11.3 or elsewhere in China's Accession Protocol. 
In addressing China's argument that Paragraph 170 of China's Accession Working Party Report 
shows that China assumed a "qualified" obligation to eliminate export duties, the Appellate Body observed that Paragraph 170 is concerned with "int ernal policies" affecting "all fees, charges or 
taxes levied on imports and exports" and sets out China's commitment in response to the concern 
expressed by WTO Members at the time of China's accession regarding "the application of VAT and 
additional charges levied by sub-national governments on imports." The Appellate Body therefore 
found Paragraph 170 of China's Accession Working Party Report to be of limited relevance in 
interpreting Paragraph 11.3 of China's Accession Protocol. By contrast, the Appellate Body noted that Paragraphs 155 and 156 of China's Accession Working Party Report deal with China's commitments with respect to the elimination of ex port duties (as does Paragraph 11.3 of China's 
Accession Protocol). The Appellate Body added that Paragraphs 155 and 156 do not make 
reference to the availability of an Article XX defence for the commitments contained therein. The Appellate Body found this fact to further suppor t the interpretation that China does not have 
recourse to Article XX of the GATT 1994 to justify export duties found to be inconsistent with 
China's obligations under Paragraph 11.3 of China's Accession Protocol. WT/AB/18 
 
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  The Appellate Body further noted, as did the Panel, that WTO Members have, on occasion, 
"incorporated, by cross-reference, the provisions of Article XX of the GATT 1994 into other covered agreements". In this regard , the Appellate Body attached significance to the fact that 
Paragraph 11.3 of China's Accession Protocol expr essly refers to Article VIII of the GATT 1994, but 
does not contain any reference to other provisions of the GATT 1994, including Article XX. 
The Appellate Body observed that the preamble of the WTO Agreement lists various objectives, but 
that none of these overall objectives provides specific guidance on the question of whether 
Article XX of the GATT 1994 is applicable to Paragraph 11.3 of China's Accession Protocol. 
Moreover, the preamble of the WTO Agreement stat es that WTO Members "[r]esolved, therefore, 
to develop an integrated, more viable and durable multilateral trading system". Based on this language, the Appellate Body considered that the WTO Agreement, as a whole , reflects the 
balance struck by WTO Members between trade and non-trade-related concerns. In the light of 
China's explicit commitment contained in Paragraph 11.3 to eliminate export duties and the lack of 
any direct or indirect textual reference to Ar ticle XX of the GATT 1994 in that provision, the 
Appellate Body saw no basis to fi nd that Article XX of the GATT 1994 is applicable to export duties 
found to be inconsistent with Paragraph 11.3. 
The Appellate Body concluded that a proper interp retation of Paragraph 11.3 of China's Accession 
Protocol does not make available to China the exceptions under Article XX of the GATT 1994 to 
justify export duties that are found to be inconsistent with China's obligations under Paragraph 11.3. Consequently, the Appellate Body found that the Panel did not err in finding that "there is no basis in China's Accession Protocol to allow the application of Article XX of the 
GATT 1994 to China's obligations in Paragr aph 11.3 of the Accession Protocol." The Appellate 
Body therefore upheld the Panel's conclusion that China may not seek to justify the application of export duties to certain forms of fluorspar pursuant to Article XX(g) of the 
GATT 1994 and the Panel's conclusion that China may not seek to justify the application 
of export duties to certain forms of magn esium, manganese, and zinc pursuant to 
Article XX(b) of the GATT 1994.  
4.1.5  Article XI:2(a) of the GATT 1994 
The Appellate Body turned next to address China's appeal of the Panel's finding that China had not 
demonstrated that its export quota on refractory-grade bauxite was "temporarily applied", within the meaning of Article XI:2(a) of the GATT 1994, to either prevent or relieve a "critical shortage". 
China alleged that the Panel erred in interpreting and applying the term "temporarily" and in 
interpreting the term "critical shortages" in Article XI:2(a), and acted inconsistently with Article 11 of the DSU. 
The Appellate Body began by observing that Article XI:2 refers to the general obligation to 
eliminate quantitative restrictions set out in Article XI:1 and stipulates that the provisions of Article XI:1 "shall not extend" to the items listed in Article XI:2. Article XI:2 must therefore be 
read together with Article XI:1. The Appellate Bo dy further noted that "duties, taxes, or other 
charges" are excluded from the scope of Article XI:1. Thus, by virtue of the link between Article XI:1 and Article XI:2, the term "restrictions" in Article XI:2(a) also excludes "duties, taxes, or other charges". The Appellate Body considered, therefore, that if a restriction does not fall 
within the scope of Article XI:1, Article XI:2 will not apply to it either. 
The Appellate Body then turned to interpret the main elements contained in Article XI:2(a) – 
"temporarily applied", "to prevent or relieve" "critical shortages", and "foodstuffs or other products 
essential". 
First, the Appellate Body noted that the term "t emporarily" in Article XI:2(a) of the GATT 1994 is 
employed as an adverb to qualify the term "applied". The word "temporary" is defined as "[l]asting 
or meant to last for a limited time only; not permanent; made or arranged to supply a passing 
need". When employed in connection with the word "applied", it describes a measure applied for a limited time, a measure taken to bridge a "passing need". The Appellate Body concluded that "supply[ing] a passing need" suggests that Article XI:2(a) refers to measures that are applied in 
the interim. Thus, a restriction or prohibition in the sense of Article XI:2(a) must be of a limited 
duration and not indefinite. The Appellate Body disagreed with the Panel that "temporary" must 
always connote a time-limit fixed in advance. Instead, the Appellate Body found that WT/AB/18 
 
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  Article XI:2(a) describes measures applied for a limited duration, adopted in order to bridge a 
passing need, irrespective of whether or not th e temporal scope of the measure is fixed in 
advance. The Appellate Body indicated that the Pa nel's use of the terms "long-term application" 
and "long-term measures" provided little value in elucidating the meaning of the term 
"temporary", because what is "long-term" would appear to depend on the facts of the particular 
case. 
The Appellate Body read the terms "prevent or relieve" in Article XI:2(a) as providing a basis for 
measures adopted to alleviate or reduce an existing critical shortage, as well as for preventive or 
anticipatory measures adopted to preempt an imminent critical shortage. 
With respect to the meaning of the term "critica l shortage", the Appellate Body found that this 
term refers to those deficiencies in quantity that are crucial, that amount to a situation of decisive 
importance, or that reach a vitally important or decisive stage. The Appellate Body then noted that 
the shortage, in turn, must relate to "foodstuffs or  other essential products". "Foodstuff" is defined 
as "an item of food, a substance used as food". The term "essential" is defined as "absolutely 
indispensable or necessary". The Appellate Body fo und, therefore, that Article XI:2(a) refers to 
critical shortages of foodstuffs or otherwise absolutely indispensable or necessary products.  
China argued that the Panel erroneously found that Article XI:2(a) and Article XX(g) are mutually 
exclusive, and that this finding was the basis for the Panel's erroneous interpretation of the term 
"temporarily" in Article XI:2(a). The Appellate Bo dy was of the view that the Panel had not found 
that Article XI:2(a) and Article XX(g) are mutually exclusive and that the Panel's interpretation of 
the term "temporarily" in Article XI:2(a) was not based on such a finding. 
The Appellate Body did not share the Panel's concern that if Article XI:2(a) is not interpreted as 
confined to measures of limited duration, Memb ers could "resort indistinguishably to either 
Article XI:2(a) or to Article XX(g) to address the problem of an exhaustible natural resource." The 
Appellate Body clarified that Members can resort to  Article XX of the GATT 1994 as an exception to 
justify measures that would otherwise be inconsistent with their GATT obligations. By contrast, Article XI:2 provides that the general prohibition of quantitative restrictions in Article XI:1 shall not 
extend to  the items listed under subparagraphs (a) to (c) of that provision. This language indicates 
that the scope of the obligation not to impose quantitative restrictions itself is limited by Article XI:2(a). For the Appellate Body, therefore, where the requirements of Article XI:2(a) are met, there would be no scope for the application of Article XX, because no obligation exists. 
The Appellate Body also addressed China's two separate claims that the Panel failed to make an 
objective assessment of the matter pursuant to Arti cle 11 of the DSU. First, China alleged that the 
Panel failed properly to assess evidence that China's export restriction is annually reviewed and 
renewed, and that the Panel's failure to consider this evidence has a bearing on the objectivity of 
the Panel's factual assessment. The Appellate Body , however, found that the Panel's finding was 
not, as China alleged, based on a mere "assumption" that the restriction would remain in effect 
until depletion of the reserves. Instead, the Panel considered evidence indicating that the measure 
had been in place for at least a decade and China did not contest the Panel's finding that this was the case. 
Next, China claimed that the Panel employed internally inconsistent or incoherent reasoning in 
stating, on the one hand, that "there is no possibility for an existing shortage [of an exhaustible 
natural resource] ever to cease to exist" such that "it will not be possible to 'relieve or prevent' it 
through an export restriction applied on a temporary basis". On the other hand, the Panel 
acknowledged that "advances in reserve detection or extraction techniques", or the availability of 
"additional capacity", could "alleviate or eliminat e" a shortage of an exhaustible natural resource, 
or that "new technology or conditions" might "lessen demand" for the resource. The Appellate 
Body disagreed that the Panel had made such a finding and noted that the Panel's statement to 
which China referred contained a hypothetical and did not, as China alleged, show that the Panel had failed to make an objective assessment under Article 11 of the DSU. 
On this basis, the Appellate Body upheld the Panel's conclusion that China did not 
demonstrate that its export quota on re fractory-grade bauxite was "temporarily 
applied", within the meaning of Article XI:2(a) of the GATT 1994, to either prevent or relieve a "critical shortage". It also dism issed China's claim that the Panel acted WT/AB/18 
 
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  inconsistently with its duty to conduct an objective assessment of the matter as 
required by Article 11 of the DSU. 
4.1.6  Article XX(g) of the GATT 1994 China alleged that the Panel erred in interpreting the phrase "made effective in conjunction with" 
in Article XX(g) to mean that restrictions on domestic production or consumption must "be applied 
jointly with the challenged export restrictions", an d that "the purpose of those export restrictions 
must be to ensure the effectiveness of those domestic restrictions". 
The Appellate Body began by recalling that Article XX of the GATT 1994 contemplates a two-tiered 
analysis of a measure for which justification under that provision is sought. A respondent must first demonstrate that the challenged measure falls within the scope of one of the subparagraphs of Article XX. Where this is the case, a respondent  must then establish that the measure at issue 
satisfies the requirements of the chapeau of Article XX. 
The Appellate Body further noted that, in order to  fall within the ambit of subparagraph (g), a 
measure must "relat[e] to the conservation of ex haustible natural resources". The term "relat[e] 
to" is defined as "hav[ing] some connection with, be[ing] connected to". The Appellate Body 
recalled that it had previously found, in US – Shrimp , that, for a measure to relate to conservation 
in the sense of Article XX(g), there must be a close and genuine relationship of ends and means. 
The word "conservation", in turn, means "the pr eservation of the environment, especially of 
natural resources". 
Subsequently, the Appellate Body observed that Article XX(g) further requires that conservation 
measures be "made effective in conjunction with restrictions on domestic production or 
consumption". The word "effective" in relation to a legal instrument is defined as "in operation at a 
given time". The Appellate Body considered that the term "made effective" describes measures brought into operation, adopted, or applied. The term "in conjunction" is defined as "together, 
jointly (with)". Accordingly, the trade restrictio n must operate jointly with the restrictions on 
domestic production or consumption. 
The Appellate Body recalled that, in US – Gasoline , even though Brazil and Venezuela had 
presented arguments suggesting that it was necessary that the purpose of the baseline 
establishment rules be to ensure the effectiveness of restrictions on domestic production, the Appellate Body did not consider this to be necessary. In particular, the Appellate Body did not 
consider that, in order to be justified under Article XX(g), measures "relating to the conservation 
of exhaustible natural resources" must be primarily aimed at rendering effective restrictions on 
domestic production or consumption. Instead, the Appellate Body read the terms "in conjunction with", "quite plainly", as "together with" or "jointly with" and found no additional requirement that 
the conservation measure be primarily aimed at making effective certain restrictions on domestic 
production or consumption. 
In the present dispute, the Appellate Body therefor e considered that the text of Article XX(g) did 
not suggest that, in addition to being "made effective in conjunction with restrictions on domestic 
production or consumption", a trade restriction must be aimed at ensuring the effectiveness of domestic restrictions, as the Panel found. 
The Appellate Body concluded that the Pane l erred in interpreting the phrase "made 
effective in conjunction with" in Article XX(g) of the GATT 1994 to require a separate 
showing that the purpose of the challeng ed measure must be to make effective 
restrictions on domestic production or co nsumption. Accordingly, the Appellate Body 
reversed this interpretation by the Panel. 
4.2  Appellate Body Report, United States – Measures Affecting Trade in Large Civil 
Aircraft (Second Complaint) , WT/DS353/AB/R 
This dispute concerned a challenge brought by th e European Communities against a broad array of 
subsidies allegedly provided by the United States to The Boeing Company ("Boeing") in relation to the manufacture of large civil aircraft ("LCA"). In  particular, the European Communities challenged 
subsidies allegedly provided by: the US Federal Government, including the United States National WT/AB/18 
 
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  Aeronautics and Space Administration ("NASA"), the United States Department of Defense 
("USDOD"), the United States Department of Commerce ("USDOC"), and the United States Department of Labor ("USDOL"); the States of Washington, Kansas, and Illinois; the counties of Snohomish (Washington) and Cook (Illinois); and the cities of Everett (Washington), Wichita 
(Kansas), and Chicago (Illinois). 
4.2.1  Annex V to the SCM Agreement 4.2.1.1  Background to and summary of the Panel's findings 
In its request for the establishment of a panel, the European Communities requested that the DSB 
initiate a procedure for gathering information concerning serious prejudice under Annex V to the SCM Agreement ("Annex V procedure") and designate Mr. Mateo Diego-Fernández as its representative for the purpose of facilitating such procedure. At the meeting when the DSB 
established the Panel, as well as at four subsequent DSB meetings in 2006, the European 
Communities sought initiation of an Annex V proc edure, expressing its view that the DSB must 
initiate such a procedure upon request, unless there is a consensus not to do so. The United States 
indicated that it could not agree to the proposed initiation. Although the DSB "took note" of the 
statements made at each meeting, no Annex V procedure ensued. 
As soon as the Panel was composed, the European Communities submitted a request for various 
preliminary rulings in connection with the gathering of information relating to serious prejudice. 
The European Communities sought to have the Panel find, inter alia : that an Annex V procedure 
had been initiated, on the basis that this occu rs automatically upon request unless there is a 
consensus at the DSB against initiation; that a faci litator had been effectively designated; and that 
the United States was under an obligation to co operate in the information-gathering procedure. 
The European Communities requested, alternatively, that the Panel exercise its powers under Article 13 of the DSU and request the United States to provide certain information. 
The Panel issued a Preliminary Ruling denying the European Communities' request to find that an 
Annex V procedure had been initiated, and all dependent requests. The Panel interpreted the phrase "the DSB shall, upon request, initiate the procedure" in paragraph 2 of Annex V to mean 
that some form of action by the DSB is required for the initiation of an Annex V procedure, even 
though "it may well be" that such initiation is not a "decision" that is subject to positive consensus. Because, however, it was "clear" from the minutes of the relevant DSB meetings that the DSB never took any action to initiate an Annex V procedure or to designate a DSB representative 
pursuant to paragraph 4 of Annex V, the Panel considered itself unable to rule that such a 
procedure had been initiated. 
4.2.1.2  Claims and arguments on appeal 
On appeal, the European Union sought reversal of the Panel's Preliminary Ruling on the grounds 
that the Panel failed to make an objective assessment of the matter within the meaning of Article 11 of the DSU and/or falsely exercised judicial economy, and/or erred in the interpretation 
and application of Article 7.4 and paragraph 2 of  Annex V to the SCM Agreement. The European 
Union also requested the Appellate Body to complete the analysis and, in that regard, to make four 
specific findings (each referred to below). Indepe ndently from these requests, the European Union 
also made two additional requests (referred to below). 
The United States urged the Appellate Body to re ject the European Union's claims on the ground 
that the Panel had correctly found that the initiation of an Annex V procedure requires an affirmative act or decision by the DSB – irrespecti ve of whether by positive or negative consensus 
– and that the DSB had taken no such step.  
4.2.1.3  Appellate Body's analysis and findings Annex V to the SCM Agreement contains procedures for developing information in disputes in 
which there is a claim of serious prejudice. Paragraph 2 of Annex V provides: 
In cases where matters are referred to the DSB under paragraph 4 of 
Article 7, the DSB shall, upon request, initiate the procedure  to obtain WT/AB/18 
 
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  such information from the government of the subsidizing Member as 
necessary to establish the existence and amount of subsidization, the value of total sales of the subsidized firms, as well as information necessary to analyze the adverse effects caused by the subsidized 
product. This process may include, where appropriate, presentation of 
questions to the government of the subsidizing Member and of the complaining Member to collect information, as well as to clarify and obtain 
elaboration of information available to the parties to a dispute through 
the notification procedures set forth in Part VII. (emphasis added; footnotes omitted) 
4.2.1.3.1  European Union's request for re versal of the Panel's preliminary ruling 
The Appellate Body began its analysis by observing that, while in its request for preliminary rulings 
the European Communities had asked the Panel to rule that an Annex V procedure had been initiated, this was but one part of its request. At the outset of its communication to the Panel, the 
European Communities had underscored the "key le gal issue" put before the Panel as being how 
the DSB is to initiate an Annex V procedure. Nevertheless, the Panel did not engage with the extensive arguments put forward by the European C o m m u n i t i e s  i n  s u p p o rt  o f  i t s  v i e w  t h a t  t h e  
initiation of an Annex V procedure is not a DSB decision subject to positive consensus, but rather 
an action that is automatically taken upon request, or at least taken unless there is negative consensus not to take the action.  
The Appellate Body noted the Panel's perfuncto ry examination of a single phrase within 
paragraph 2 of Annex V ("the DSB shall, upon requ est, initiate the procedure") without considering 
the significance of the other language set out in that provision or analyzing any relevant context. The only other step in the Panel's reasoning consis ted of a review of the minutes of the relevant 
DSB meetings, en route to its determination that it was "clear" from such minutes that the DSB 
did not take any action to initiate an Annex V procedure. 
The Appellate Body viewed the Panel's approach – of  reducing the issue put before it to the factual 
question of whether  the DSB had taken action to initiate an Annex V procedure – as an effective 
refusal to tackle the issue of law that it was asked to rule on, namely, how the relevant provisions 
of the covered agreements provide for an Annex V procedure to be initiated. For the Appellate Body, therefore, the Panel's findings did not adequately resolve the legal issues 
presented. The Panel failed to advance a key objective of WTO dispute settlement: the resolution 
of disputes in a manner that preserves the rights and obligations of Members and clarifies existing provisions of the covered agreements in accordan ce with the customary rules of interpretation. 
The Appellate Body also recalled that when a panel's findings provide "only a partial resolution of 
the matter at issue", this amounts to "false judicial economy" and an error of law.  
For these reasons, the Appellate Body found that, in denying the various requests made 
by the European Communities with respect to  an Annex V procedure, the Panel erred, 
and failed to resolve adequately  the legal issues presented. 
The Appellate Body then proceeded to consider th e European Union's request for completion of the 
analysis and for four specific findings. 
4.2.1.3.2  The European Union's specific requests 
4.2.1.3.2.1  Request for a finding that initiati on of the Annex V procedure is by negative 
consensus or is automatic 
The Appellate Body next turned to the question of how an Article V procedure is initiated. In this 
regard, the Appellate Body observed that paragr aph 2 of Annex V imposes an obligation on the 
DSB to initiate an Annex V procedure when two conditions are satisfied: (i) there must be a 
request by a WTO Member for initiation of such a procedure; and (ii) the relevant matter must be 
"referred to the DSB under paragraph 4 of Article 7", that is, the DSB must establish a panel. The 
Appellate Body viewed initiation of an Annex V procedure as a straightforward and specific administrative action that is a procedural incident of the DSB's decision to establish a panel when 
the initiation of an Annex V procedure has been requested. The Appellate Body contrasted this WT/AB/18 
 
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  mandatory, "executory" function with other responsibilities of a more deliberative nature assigned 
to the DSB, which require the DSB to discuss and to make a choice among multiple courses of action. In addition, the Appellate Body relied on various other provisions in Annex V as affirming the link between establishment of a panel and the initiation of an Annex V procedure. The 
Appellate Body rejected the United States’ ar gument that because the DSB must appoint an 
Annex V facilitator by positive consensus, the initiation of an Annex V procedure must be done in the same way. Without expressing any view as to how the DSB is to appoint an Annex V facilitator, 
the Appellate Body observed that, as the represen tative of the DSB within the WTO, the Chairman 
of the DSB is in principle responsible for discharging the function of facilitating an Annex V procedure until such time as that function is delegated through the DSB's designation of another individual as a facilitator. 
The Appellate Body further reasoned that, if a positive consensus rule were to apply to the DSB’s 
initiation of an Annex V procedure, this would en able individual Members to prevent the use of the 
Annex V procedure. Yet Annex V, as well as Article 6.6 and 6.8 of the SCM Agreement, 
demonstrate the vital role that an information-gathering procedure plays in the context of a 
dispute involving an allegation of serious prejudice.  These provisions, as well as Article 7.4, reflect 
Members' recognition of the practical realities of serious prejudice disputes, and their intention to 
create a procedure for the timely collection of info rmation that is needed by the parties involved in 
a serious prejudice dispute which would flow in to, supplement, and largely precede a panel's 
substantive adjudication of such disputes. The Appellate Body therefore considered that an 
interpretation of paragraph 2 of Annex V that woul d enable a responding Member to frustrate that 
role by preventing the DSB from initiating such a procedure would be at odds with WTO Members' 
manifest intention to promote the early and targeted collection of pertinent information, and with the obligation to cooperate in the collection of information relating to serious prejudice disputes to 
which all Members are subject. It would also be at odds with the mandatory terms used in the SCM 
Agreement for the DSB's initiation of such procedures.  
The Appellate Body also highlighted two consequences that could flow if initiation required positive 
consensus, and for which there may be no remedy in the panel proceedings. First, the parties to 
the dispute could be denied access to critical information from third-country Members if those Members chose not to become third parties in the dispute. Second, if the objection to the initiation of the Annex V procedure came from a WTO Me mber other than the responding party or a 
concerned third country Member, there may be no basis upon which the panel could allow the 
complainant to rely upon best available evidence and/or draw adverse inferences based on the conduct of the respondent. Finally, the Appellate Body observed that while the negotiating history 
of the SCM Agreement supplies little concrete in sight as to how Members intended the Annex V 
procedure to be initiated, it confirms the Appellate Body's understanding of the reasons why Members considered such a procedure to be a key part of serious prejudice disputes. 
Accordingly, the Appellate Body found that, in accordance with paragraph 2 of Annex V 
to the SCM Agreement, the DSB's initiation of an information-gathering procedure in a serious prejudice dispute occurs  automatically when there is a request for initiation of 
such a procedure and the DSB establishes a panel.  One Member of the Division qualified this 
understanding of paragraph 2 of Annex V to the SCM Agreement, accepting that the DSB's 
initiation of an Annex V procedure in this manner can occur only when the complaining Member's request for an Annex V procedure forms an inte gral part of that Member's request for the 
establishment of a panel. 
4.2.1.3.2.2  The European Union's remaining specific requests In considering the European Union’s request for a finding that, as a matter of law, all of the 
conditions for the initiation of an Annex V procedure were fulfilled in this dispute, the Appellate 
Body recalled its finding that two conditions must be satisfied in order to trigger initiation of an Annex V procedure: a request for initiation by a Member and a referral of the matter to the DSB 
under Article 7.4 of the SCM Agreement. The Appella te Body noted, however, that the Panel made 
an explicit finding that no Annex V procedure had been initiated and that it is uncontested that no 
Annex V procedure was conducted. The Appellate Body failed to see how, more than five years after the fact, a ruling on whether the conditions for the initiation of an Annex V procedure were 
fulfilled would contribute to a positive resolution to this dispute. Accordingly, the 
Appellate Body declined to rule on whether a ll of the conditions for the initiation of an 
Annex V procedure were fulfilled in this dispute.   WT/AB/18 
 
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  Next, the Appellate Body considered the European Union's last two specific requests for findings. 
The first was the request for a finding that, in refusing to cooperate in the information-gathering process as required by the first sentence of paragraph 1 of Annex V, the United States failed to comply with its obligations under that provision  
The second request was to find that, on account of the lack of co-operation by the United States, 
the European Communities was entitled to present its serious prejudice case based on the available evidence, and the Panel was entitled to complete the record as necessary by relying on 
best information otherwise available and to draw adverse inferences, as permitted under 
paragraphs 6 and 9 of Annex V. 
The Appellate Body was of the view that any assessment of the European Union's allegations 
would likely require consideration of a number of "thorny" and sui generis  issues regarding this 
dispute's procedural history, including: the relationship between the proceedings in this dispute 
(DS353) and those in the previous DS317 dispute (a complaint which had been initiated by the 
European Communities in October 2004 in respect of alleged subsidies to US producers of large 
civil aircraft for which an Annex V procedure was initiated and completed, but which ended 
following the resignation of two members of the pa nel and for which modalities for the transfer of 
that record could not be agreed); the Annex V procedure in DS317 and the extent of US 
participation therein; the relevance, if any, of the fact that European Communities' request for 
initiation of an Annex V procedure appears to have been removed from the DSB agenda through a consensus joined in by the European Communities itself. 
The Appellate Body considered that, in the particular circumstances of this proceeding, it was not 
evident that the relevant facts are sufficiently clear or uncontested, or that the complex legal 
issues had been sufficiently explored by th e participants to make a finding on the 
European Union's requests. Nor did the Appellate Body consider that it could answer questions 
relating to the extent of the United States' cooperation in the abstract, or during the dispute. 
Based on all of the above, the Appellate Bo dy made no finding as to these requests. 
4.2.1.3.3  The European Union's additional requests 
Finally, the Appellate Body noted its difficulty in understanding precisely what the 
European Union's additional requests sought to have it do, or how they squared with its mandate under Article 17.6 of the DSU. The European Union had requested the Appellate Body to 
"constantly bear in mind the circumstances of this case" – notably the United States' withholding 
of information and refusal to cooperate in the Annex V procedure – which the European Union had 
argued imply that: (i) the United States cannot, in its appeal, criticize the Panel for its factual assessments or for drawing factual inferences where the United States itself deprived the Panel of 
information; and (ii) the Appellate Body should rule in its favour in the event of doubt or 
evidentiary conflict or equipoise. The Appellate Bo dy deemed the first request to relate to a moot 
point since, as explained below, the Appellate Body  in any event rejected the two claims of error 
made by the United States under Article 11 of th e DSU (relating to the Panel's estimate of the 
amount of the subsidy under USDOD R&D contracts and agreements and to its analysis of the effects of the aeronautics R&D subsidies on Boeing). With regard to the second additional request, the Appellate Body observed that it would have expected the European Union to provide a more 
precise indication of the areas in which it considered the factual record to be incomplete, of how 
the lack of information related to the United States' alleged non-cooperation, and of the specific inferences that it sought to have the Appellate Body draw. The Appellate Body expressed doubt 
that the provisions of Annex V imply that any non-cooperation in an Annex V procedure requires 
the drawing of adverse inferences against the party accused of non-cooperation on all factual issues. Since, in the opinion of the Appellate Bo dy, the drawing of adverse inferences should, at 
least to some extent, involve consideration of the connection between the non-cooperation and the 
relevant issue, as well as of other evidence available on the record, the Appellate Body considered that this request by the European Union was not sufficiently supported to allow it to make the requested finding.  WT/AB/18 
 
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  4.2.2  NASA and USDOD measures 
4.2.2.1  Financial contribution 4.2.2.1.1  The Panel's findings In its analysis of whether the NASA and USDOD measures challenged by the European 
Communities constitute financial contributions within the meaning of Article 1.1(a)(1) of the 
SCM Agreement, the Panel began by focusing on th e interpretative issue of whether measures that 
are properly characterized as "purchases of services" are excluded from the scope of 
Article 1.1(a)(1)(i) of the SCM Agreement and, ther efore, do not qualify as financial contributions 
by means of a "direct transfer of funds". 
After determining that Article 1.1(a)(1)(i) does not include within its scope measures that are 
properly characterized as purchases of services, the Panel proceeded to consider whether the 
NASA and USDOD measures at issue in fact qualif y as such. For this purpose, the Panel developed 
and applied a test to determine whether or not the NASA and USDOD measures could be properly characterized as purchases of services. According to the Panel's test this was dependent on the 
nature of the work that Boeing was required to perform pursuant to these contracts and, more 
specifically, whether the resulting research was "principally for [Boeing's] own benefit and use, or whether it was principally for the benefit and use of the U.S. Government (or unrelated third 
parties)".  
In applying its test, the Panel considered the following five categories of evidence: (i) the 
legislation authorizing the R&D programmes at issue; (ii) the types of instruments entered into between NASA/USDOD and Boeing; (iii) whether NASA/USDOD has any demonstrable use for the 
R&D performed under the programmes; (iv) the alloca tion of intellectual property rights under the 
transactions at issue; and (v) whether the transactions have the typical elements of a purchase of services. The Panel concluded that the NASA procurement contracts and USDOD assistance 
instruments could not be properly characterized as purchases of services. By contrast, it found 
that the USDOD procurement contracts did qualify as purchases of services. For measures that qualified as purchases of services under its test – that is, the USDOD procurement contracts – the 
Panel excluded them from further consideration based on its interpretation of Article 1.1(a)(1) that 
such measures are not financial contributions. By contrast, where the measures did not qualify as purchases of services under the test – the NASA procurement contacts and USDOD assistance instruments – the Panel treated the payments ma de by NASA and the USDOD to Boeing pursuant 
to those contracts and instruments as direct transfers of funds within the meaning of 
Article 1.1(a)(1)(i). Furthermore, it determined that the access to NASA facilities, equipment, and employees provided to Boeing pursuant to the NASA procurement contracts, and the access to 
USDOD facilities pursuant to the USDOD assistance instruments, constitute the provision of goods 
and services under Article 1.1(a)(1)(iii). The Panel additionally found that the access to NASA facilities, equipment and employees provided to  Boeing through the NASA Space Act Agreements 
constitutes a provision of goods or services with in the meaning of Article 1.1(a)(1)(iii) of the 
SCM Agreement. The Panel noted that during the Panel proceedings the United States had accepted that the provision of (access to) faciliti es, equipment and employees provided to Boeing 
through NASA Space Act Agreements at issue consti tutes a provision of goods or services within 
the meaning of Article 1.1(a)(1 )(iii) of the SCM Agreement".  
4.2.2.1.2  Claims and arguments on appeal In its appeal, the European Union requested revers al of the Panel's interpretation that measures 
properly characterized as purchases of services are excluded from the scope of Article 1.1(a)(1) of 
the SCM Agreement.  
The United States requested reversal of the Pa nel's finding that the N ASA procurement contracts 
and USDOD assistance instruments do not constitute purchases of services and, consequently, its 
finding that these measures involve payments that are direct transfers of funds within the meaning of Article 1.1(a)(1)(i), as well as the Panel's finding that the other support provided to Boeing constitutes the provision of goods and services wi thin the meaning of Article 1.1(a)(1)(iii). The 
United States did not appeal the Panel's finding that the access to facilities, equipment and WT/AB/18 
 
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  employees provided to Boeing under the NASA Space Act Agreements constitutes a financial 
contribution under Article 1.1(a)(1)(iii). 
4.2.2.1.3  The Appellate Body's analysis and findings 4.2.2.1.3.1  The Panel's general approach 
The Appellate Body began its analysis by expres sing some concerns about the Panel's general 
approach. First, the Appellate Body noted that the Panel had been confronted with contrasting 
characterizations of the NASA and USDOD measures before it. However, instead of first resolving 
the dispute over the proper characterization of the measures, the Panel embarked on an 
interpretative exercise based on the assumption th at the measures are purchases of services. Only 
after it had completed its interpretative exercise  on the basis of that assumption did the Panel 
return to the question of what was the proper characterization of the measures at issue. The 
Appellate Body explained that it would seem more logical to determine first the issue of the proper 
characterization of the measures at issue and, on ce the measures have been properly determined, 
to examine the question of whether such types of measures fall within the scope of 
Article 1.1(a)(1) of the SCM Agreement. The Appella te Body observed that the Panel arrived at the 
conclusion that the payments and other support are financial contributions by exclusion. This conclusion seems to have proceeded automatically from the Panel's conclusion that the NASA 
procurement contracts and USDOD assistance instruments are not  purchases of services. The 
reason why one conclusion – that the relevant me asures are direct transfers of funds – follows 
automatically from the other – that the same measures are not purchases of services – was not explained by the Panel. 
It was not clear to the Appellate Body why, in the face of arguments by the European Communities 
that the payments under the contracts fall within  the scope of Article 1.1(a)(1)(i) because they are 
grants – a category of financial contributions ex pressly mentioned in that provision – the Panel 
started from the premise that it was required to determine whether purchases of services – a 
category that is not mentioned in that provision – are excluded from its scope. 
In the Appellate Body's view, the Panel should first have examined the measures to determine 
their relevant characteristics, and then considered whether, in the light of a correct interpretation 
of Article 1.1(a)(1), these measures, properly characterized, fall within the scope of that provision. The Appellate Body next turned to itself exam ine the measures – that is, the NASA procurement 
contracts and USDOD instruments – in order to determine their relevant characteristics. This 
would be followed by an interpretation of th e terms and scope of Article 1.1(a)(1) of the 
SCM Agreement. Finally, the Appellate Body explained that it would determine whether, in the light of the relevant characteristics, the N ASA procurement contracts and USDOD assistance 
instruments fall within the four categories of financial contributions covered by Article 1.1(a)(1) of 
the SCM Agreement. 
4.2.2.1.3.2  The Proper characteri zation of the measures at issue 
After reviewing the NASA procurement contracts an d USDOD assistance instruments, the Appellate 
Body considered the following as the measures' principal characteristics. The NASA procurement 
contracts and USDOD assistance instruments involve the commitment of resources from both parties. In the case of the NASA procurement contracts, NASA commits to provide financial 
resources and contributes the use of its facili ties, equipment, and employees, while Boeing 
contributes the work of its scientists and engineer s. Under the USDOD assistance instruments, the 
USDOD commits to provide financial resources and access to its facilities, and Boeing contributes 
the work of its scientists and engineers, as well as  its own financial resources. Thus, both types of 
instruments involve monetary and non-monetary contributions. Moreover, the subjects to be 
researched are often determined collaboratively between NASA/USDOD and Boeing. The fruits of 
the research are shared between Boeing and NASA or Boeing and the USDOD. Boeing obtains title 
to inventions and rights to the data that allow use for commercial purposes, while the US Government obtains a royalty-free licence to use the technology or data for government purposes only. Accordingly, the Appellate Body found th at the transactions under the NASA procurement 
contracts and under the USDOD assistance instruments are akin to a joint venture. WT/AB/18 
 
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  4.2.2.1.3.3  The types of fi nancial contributions covered by Article 1.1(a)(1) of the 
SCM Agreement 
The Appellate Body focused its interpretation on subparagraphs (i) and (iii) of Article 1.1(a)(1), 
which provide: 
Definition of a Subsidy 
1.1 For the purpose of this Agreement, a subsidy shall be deemed to 
exist if: 
(a)(1) there is a financial contribution by a government or any public body 
within the territory of a Member (r eferred to in this Agreement as 
"government"), i.e. where: 
(i) a government practice involves a direct transfer of funds (e.g. 
grants, loans, and equity infusion), po tential direct transfers of funds or 
liabilities (e.g. loan guarantees); 
… 
(iii) a government provides goods or services other than general 
infrastructure, or purchases goods; … . 
As regards subparagraph (i) of Article 1.1(a)(1), the Appellate Body stated that it is clear from the 
examples in that provision that a direct transfer of funds will normally involve financing by the 
government to the recipient. In some instances, as  in the case of grants, the conveyance of funds 
will not involve a reciprocal obligation on the part  of the recipient. In other cases, such as loans 
and equity infusions, the recipient assumes oblig ations to the government in exchange for the 
funds provided. Thus, the provision of funding under subparagraph (i) may amount to a donation 
or may involve reciprocal rights and obligations.  
The Appellate Body then discussed subparagraph (iii),  noting that that provision contemplates two 
distinct types of transaction: the first is where a government "provides goods or services other 
than general infrastructure"; and the second relates to situations in which a government "purchases goods" from an enterprise. In the case of the provision of goods or services, 
subparagraph (iii) does not specify whether the goods or services are provided gratuitously or in 
exchange for money or other goods or services. Thus, the provision of goods or services may 
include transactions in which the recipient is not required to make any form of payment, as well as transactions in which the recipient pays for the goods or services. Therefore, what is captured in 
the first sub-clause of subparagraph (iii), as well as in subparagraph (i) (referred to above), is a 
government's provision of goods or services, or of  funds, irrespective of whether this is done 
gratuitously or in exchange for consideration. The difference between the two types of government 
conduct, however, lies in what is being transf erred by the government. Under subparagraph (i), 
the government transfers financial resources, while under subparagraph (iii) (first sub-clause), the government provides a good or service. Two addi tional differences between the first and second 
sub-clauses of subparagraph (iii) were noted by the Appellate Body. The second sub clause uses 
the term "purchase", which is usually understood to mean that the person or entity providing the goods will receive some consideration in return. The other difference is that, in contrast to the first sub-clause that addresses the provision of goods and services, the second sub-clause refers only 
to purchases of "goods", and not of "services".  
The Appellate Body recalled that the Panel in this  dispute interpreted the omission of the term 
"services" from the second sub clause of subparagrap h (iii) as an indication that the drafters of the 
SCM Agreement did not intend measures constituti ng government purchases of services to be 
covered as financial contributions under Article 1. 1(a)(1)(i). However, the Appellate Body observed 
that it did not need to resolve this interpretative  issue because it was not relevant for purposes of 
resolving the dispute. Therefore the Appellate Bo dy declared the Panel's interpretation that 
"transactions properly characterized as purchases of services are excluded from the scope of 
Article 1.1(a)(1)(i) of the SCM Agreement" to be moot and of no legal effect. The Appellate Body 
also declared moot the Panel's finding that the USDOD procurement contracts are properly WT/AB/18 
 
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  characterized as "purchases of services" and thus are not financial contributions under 
Article 1.1(a)(1). However, as neither participant had requested it, the Appellate Body did not complete the analysis regarding the USDOD procurement contracts at issue in this dispute. 
4.2.2.1.3.4  Do the NASA and USDOD measures  constitute financial contributions within 
the meaning of Article 1.1(a)(1) of the SCM Agreement? 
The Appellate Body recalled its views that the ex amples listed in subparagraph (i) provide an 
indication of the types of transactions intended to be covered by the more general reference to 
"direct transfer of funds". With respect to those examples in Article 1.1(a)(1)(i), it noted several 
similarities between the collaborative undertaking s that are the NASA/USDOD measures at issue 
and equity infusions. Like equity investors, N ASA and the USDOD provide funding. This funding is 
provided in the expectation of some kind of return. In the case of NASA and USDOD funding to 
Boeing, the return is not financial, but rather takes the form of scientific and technical information, 
discoveries, and data expected to result from the research performed. Moreover, like equity 
investors, NASA and the USDOD have no certainty at the time they commit the funding that the 
research will be successful. Success will depend on  whether any inventions are discovered and the 
usefulness of the data collected, as well as the scientific and technical information produced. And like some equity investors, NASA and the USDOD co ntribute to the project by providing access to 
facilities, equipment, and employees.  
The Appellate Body concluded that where, as here, there are measures that have sufficient 
characteristics in common with one of the examples in subparagraph (i), this commonality indicates that the measures fall within the concept of "direct transfers of funds" in 
Article 1.1(a)(1)(i). The Appellate Body further explained that it had identified two contributions by 
NASA and the USDOD under the respective joint ventures. Both NASA and the USDOD provided 
payments to Boeing to undertake the research. These payments constitute a direct transfer of 
funds within the meaning of Article 1.1(a)(1)(i).  In addition, Boeing was given access to NASA 
facilities, equipment, and employees and to USDO D facilities, which constitute the provision of 
goods or services within the meaning of Ar ticle 1.1(a)(1)(iii) of the SCM Agreement.  
Based on all of the above, the Appellate Body fo und that the payments and access to facilities, 
equipment, and employees provided to Boeing under the NASA procurement contracts at issue 
constitute financial contributions within the meanin g of Article 1.1(a)(1) of the SCM Agreement. It 
additionally found that the payments and access to  facilities provided to Boeing under the USDOD 
assistance instruments at issue also constitute financial contributions within the meaning of 
Article 1.1(a)(1) of the SCM Agreement.  
4.2.2.2  Benefit 
4.2.2.2.1  The Panel's finding of benefit under Article 1.1(b) of the SCM Agreement 
The Panel found that financial contributions provided under the NASA procurement contracts and 
Space Act Agreements and the USDOD assistance instruments conferred a benefit on Boeing 
within the meaning of Article 1.1(b) of the SCM Agreement. The Panel's finding was based on its 
view that no private entity acting pursuant to commercial considerations would provide payments and access to its facilities and personnel to another commercial entity on the condition that the other entity perform R&D activities principally for the benefit and use of that other entity. 
4.2.2.2.2  Claims and arguments on appeal 
The United States appealed the Panel's finding of benefit with respect to both the NASA and 
USDOD measures. As regards the NASA measures, the United States argued that the Panel's 
finding that research under the NASA R&D contracts was "principally for Boeing's own benefit and 
use" was the sole justification for the finding that the NASA aeronautics R&D programmes conferred a benefit. In the United States' view, since the former finding is erroneous, the latter 
finding of existence of a benefit is equally erro neous. With respect to the USDOD measures, the 
United States asserted that the Panel erred because it failed to consider that Boeing funded part of 
the costs of the research undertaken pursuant to the assistance instruments.  WT/AB/18 
 
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  The European Union responded that the United Stat es had failed to identify any errors in the 
Panel's evaluation of the existence of financial contributions and had failed to provide information as to how the income generated from those results may translate into payments from Boeing to the USDOD for the contributions made by the USDOD towards that R&D. 
4.2.2.2.3  Did the Panel err in determining benefit? 
At the outset, the Appellate Body explained that it would limit its review of the Panel's findings of 
benefit to the NASA procurement contracts and USDOD assistance instruments, and would not 
review the Panel's finding that the access to facilities, equipment and employees provided to 
Boeing under the NASA Space Act Agreements conferred a benefit.  
The Appellate Body identified several flaws in the Panel's reasoning on the issue of benefit. First, 
the Appellate Body noted that both the Panel's test for purchases of services and for benefit 
revolve around the question of which party to the transaction derives the "principal benefit and 
use" from the research. The Appellate Body cautioned that this approach risked conflating what are two separate elements of the definition of "subsidy" in Article 1.1 of the SCM Agreement. 
Second, the Appellate Body stated that the identification of the principal user or beneficiary of the 
research, on the basis of the five factors relied on by the Panel, does not capture the relevant inquiry under Article 1.1(b), which involves a consideration as to whether the measure is 
consistent with a market benchmark. Third, the Appellate Body noted that the Panel did not 
indicate what evidence there was on the record to  sustain its view that a private entity acting 
pursuant to commercial considerations would not provide payments (and access to its facilities and/or personnel) to another commercial entity wh ere that other entity performs R&D activities 
principally for its own benefit and use, and that, at a minimum, it would be expected that some 
form of royalties or repayment would be requir ed. The Appellate Body recognized that a panel 
confronted with a measure of the kind at issue here may have intuitions as to the consistency of 
the measure with the market, based on economic theory. However, a panel would be expected in 
such circumstances to at least explain and develo p reasoning regarding the economic rationale or 
theory that supports its intuition, which the Panel in this case did not do. A panel should test its 
intuitions empirically, especially where the parties have submitted evidence as to how market 
actors behave. In this case, both the European Communities and the United States had submitted evidence as to how research transactions between two market actors are structured, yet the Panel did not discuss this evidence in its reasoning. Fi nally, the Appellate Body was not persuaded that, 
a priori , it can be excluded that two market actors would enter into a transaction with each other 
in circumstances where the returns are unequally distributed between them.  
Having found that the Panel's approach and reasoning were not based on a proper market 
benchmark, the Appellate Body turned to completi ng the analysis. In this regard, the Appellate 
Body outlined the evidence of market benchmarks  that had been submitted to the Panel by the 
European Communities and the United States. It then noted that, in response to the evidence 
submitted by the European Communities, the United States did not contest that this evidence 
indicates that there were market transactions in which the entity commissioning the R&D obtained ownership of all intellectual property rights. Rather , the United States argued that the market does 
not dictate a single outcome in the negotiation of  intellectual property rights, and introduced 
evidence of alleged market transactions showing more diversity in the disposition of rights. In the 
light of this, the Appellate Body explained that, in  completing the analysis, it would proceed as if 
the Panel had treated the evidence submitted by the United States as accurate and probative. 
Thus, it would seek to determine whether the evid ence submitted by the United States shows that 
the disposition of intellectual property righ ts under the NASA/USDOD measures at issue is 
consistent with what occurs in transactions between two market actors.  
The Appellate Body concluded that the allocation of intellectual property rights in the examples of 
market transactions on record submitted by the United States was more favourable to the party commissioning the research and less favourable to the commissioned party than under the NASA procurement contracts and USDOD assistance instruments before it. This evidence thus indicated 
that transactions in the market result in an equilibrium that is more favourable to the 
commissioning party than in the measures at issue. In other words, Boeing obtained more and NASA and the USDOD obtained less than they would have obtained in the market. In the Appellate 
Body's view, this conclusion was sufficient to establish that the provision by NASA and by the 
USDOD of funding and other support to Boeing on the terms of the joint venture arrangements WT/AB/18 
 
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  that were before it conferred a benefit on Boei ng within the meaning of Article 1.1(b) of the 
SCM Agreement. 
4.2.2.3  The scope of the Panel's findings of benefit as regards the NASA measures 
4.2.2.3.1  The Panel's findings 
The Panel estimated that the total amount of payments to Boeing through R&D contracts under 
the eight NASA R&D programmes over the period  1989-2006 was $1.05 billion. In addition, the 
Panel estimated the value of the free access to facilities, equipment and employees provided by 
NASA to Boeing under the eight R&D programmes at issue to be $1.55 billion. 
4.2.2.3.2  Claims and arguments on appeal On appeal, the United States' claimed that the Panel erred by basing its valuation of the total 
benefit conferred by NASA research contracts on a combination of transactions covering not only 
LCA-related research challenged by the European Communities, but also other transactions that 
the European Communities did not challenge. In particular, the United States complained that the Panel did not exclude $280 million in expenditur es for research that NASA had determined was 
unrelated to the European Communities' claims. The United States characterized this omission as 
an error inconsistent with Article 1.1(b) because it treats transactions that were not part of the financial contribution under Article 1.1(a) as conferring a benefit.  
The European Union contended that the United States' claim was not properly within the scope of 
this appeal because the United States had failed to identify in its Notice of Other Appeal any alleged errors by the Panel under Article 1.1(b) of the SCM Agreement in valuing  the benefit to 
Boeing from the NASA aeronautics R&D programmes, or reference any of the relevant paragraphs 
of the Panel Report, in accordance with Rule 23(2) of the Working Procedures. The European Union 
additionally argued that Article 1.1(b) contains no  obligations pertaining to the quantification of 
the benefit and thus the Panel could not have committed any errors under Article 1.1(b) in valuing 
the amount of the subsidy. Moreover, the European  Union asserted that, even if Article 1.1(b) 
contained obligations pertaining to the quantification of the benefit, the United States' claim should be seen as an effort to reargue the facts.  
4.2.2.3.3  The Appellate Body's analysis and findings 
4.2.2.3.3.1  Was the United States' claim properly within  the scope of the appeal? 
The Appellate Body rejected the European Union's procedural objection because it considered that 
the United States' Notice of Other Appeal sufficiently identified the allegation of error. 
Nevertheless, the Appellate Body cautioned that the relevant item in the United States' Notice of 
Other Appeal is drafted at a level of vagueness and imprecision that made it difficult for the appellee, the third participants, and the Appellate Body to understand easily the full scope of the 
United States' claim. The Appellate Body added that drafting the Notice of Appeal or Notice of 
Other Appeal with greater precision reduces the risk of procedural objections and possible dismissal of a claim because it does not comply with the requirements of Rule 20 or 23 of the 
Working Procedures.  
4.2.2.3.3.2  Did the Panel err under Ar ticle 1.1(b) of the SCM Agreement? 
The Appellate Body recalled that the Panel had decided to rely on the methodology proposed by 
the United States which proceeded as follows. First, the United States identified all of the contracts 
that were awarded by NASA to Boeing under the eight R&D programmes at issue during the period 
1989-2006. For this purpose, the United States ran a search in a NASA database. Second, from this broad pool of Boeing contracts, the United States eliminated all contracts that it considered 
were not related to aeronautics research. This was done by identifying the awards issued by the 
NASA research centres that perform aeronautics re search. The United States explained that NASA 
conducts all of its research activities at nine research centres, but that only four of those centres – 
Langley Research Center, Glenn Research Center , Ames Research Center, and Dryden Research 
Center – are responsible for all the aeronautics re search conducted by NASA. These four research 
centres administer the eight R&D programmes and perform all the aeronautics research required in WT/AB/18 
 
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  support of NASA's other programmes. This second step yielded a figure of $1.05 billion. In the 
third step, the United States eliminated contracts that, in its view, although  awarded by one of the 
four NASA research centres that perform ae ronautics research, nevertheless pertained to 
non-aeronautics research – for example, contracts whose subject matter pertained to space, 
atmospheric science, airspace hypersonics, vert ical take-off and landing/short take-off and 
landing, and aircraft support related to the main tenance and upkeep of NASA's aircraft. Under this 
third step, the United States excluded $280 million in expenditures, resulting in a total value of 
$775 million between 1989 and 2006. Some of thes e figures have been rounded off, thus the 
discrepancy when the figures are added up. 
The Appellate Body understood the Panel to have accepted the results of the second step of 
United States' methodology pursuant to which the contracts awarded to Boeing by the four NASA 
research centres that conduct aeronautics research were segregated from those awarded by 
NASA's other five research centres that do not conduct aeronautics research. However, the Panel did not address the third step of the methodology that had been proposed by the United States, 
which involved eliminating the contracts that, despite being awarded by one of these four NASA 
research centres that perform aeronautics research, NASA had identified as not pertaining to aeronautics research. The Appellate Body expresse d the view that, once the Panel had decided to 
engage with the methodological approach and the data provided by the United States, it should 
not simply have stopped at the second step without explaining the reasons for not engaging with the third step. Rather, the Panel should have explai ned why it disagreed with the third step or why 
it did not find it probative: for instance, be cause the results of the manual review, by NASA 
personnel, of the descriptions of the research conducted under each Boeing contract awarded by 
the four research centres could not be verified. 
Nonetheless, the Appellate Body rejected the Un ited States' claim of error for the following 
reasons. First, the Panel's consideration of the amount of the subsidy was eminently a factual 
exercise that fell within the Panel's authority as the initial trier of facts and the United States had not raised a claim under Article 11 of the DSU in this respect. Second, there is no obligation in the 
SCM Agreement to quantify the precise amount of the subsidy for purposes of an adverse effects 
claim and, in the absence of such an obligation, it was not clear on what basis the Panel's reluctance to go further in its calculations could constitute legal error. The Panel did not attempt to estimate the value of the benefit conferred to Boeing under the NASA measures at issue and thus 
the United States' appeal was misdirected. Third, the Panel never purported that its calculations 
would be precise, since it indicated that the amount is an estimate. Lastly, because the Appellate Body had declined to disturb the Panel's finding as to the estimated amount of the 
subsidy provided through the payments made by NASA to Boeing, there was no basis to interfere 
with the Panel's estimate of the value of Boeing 's access to NASA facilities, equipment, and 
employees. 
4.2.2.4  Article 11 of the DSU – Amount of USDOD R&D funding pote ntially relevant to 
LCA 
4.2.2.4.1  The Panel's findings Before the Panel, the European Communities esti mated that the USDOD had provided Boeing with 
$4.3 billion in funding and support for "dual-use"  R&D over the period 1991-2006, and argued that 
$2.4 billion of that total should be treated as a su bsidy to Boeing's LCA division. The United States 
responded that the total amount of any subsidy to Boeing's LCA division under USDOD R&D 
contracts and agreements is significantly less than $308 million over the period 1991-2006. The 
Panel rejected both estimates, but ultimately was unable to arrive at its own estimate of the amount of subsidy provided to Boeing's LCA division under the USDOD assistance instruments.  
4.2.2.4.2  Claims and arguments on appeal 
In rejecting the United States' estimate of the subsidy amount, the Panel stated that it did not 
consider it credible that less than 1% of the $45 billion in aeronautics R&D funding that [US]DOD provided to Boeing over the period 1991-2005 had any potential relevance to LCA. The 
United States challenged this statement on appeal arguing that the Panel acted inconsistently with 
Article 11 of the DSU because the Panel's statement lacks an evidentiary basis. The European Union asserted that, even assuming the st atement were reviewable on appeal, it is really WT/AB/18 
 
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  in the nature of a conclusion as to the Panel's ev idence-based rejection of the United States' claim 
that dual-use R&D funding to Boeing was no greater than $308 million. 
4.2.2.4.3  The Appellate Body's analysis and findings The Appellate Body was not persuaded that the Panel had acted inconsistently with its obligation to 
make an objective assessment of the matter under Article 11 of the DSU. The Appellate Body 
acknowledged that, in making the statement challenged by the United States, the Panel did not cite specific evidence in support of its position . Nonetheless, the Appellate Body considered that 
other parts of the Panel's analysis lent support to the Panel's statement. In addition, the Appellate 
Body noted that the statement challenged by the United States was the final remark made by the Panel in explaining why it was not persuaded by th e estimate provided by the United States. When 
it made the challenged statement, the Panel had already provided three reasons why it could not 
accept the United States' estimate. Therefore, had the Panel refrained from making the challenged 
statement, it would have made little difference to the outcome of the Panel's analysis; moreover, it would not have made much difference in terms of the underlying support for the Panel's decision 
to reject the United States' estimate. Moreover, the Panel ultimately declined to provide a figure 
for its estimate of the total subsidy amount because the evidence on record did not allow it to segregate the payments and access to USDOD facilities provided under the assistance instruments 
(which it had found to be financial contribution) from payments and access to USDOD facilities 
provided under the procurement contracts (which were not found to constitute financial contributions). Finally, the Appellate Body explained that to succeed in its challenge under Article 11, an appellant must show that the statement was material to the panel's legal conclusion. 
In this case, the United States had not demonstrated that the challenged statement was material 
to the Panel's conclusion as to the total amount of the subsidy provided to Boeing through the USDOD measures. This is because, as explained above, other elements of the Panel's analysis do 
support that conclusion.  
4.2.2.5  Allocation of patent rights At the outset of its analysis, the Appellate Body clarified three aspects of the scope of the appeal 
before it. First, it noted that the European Union's appeal was directed only at the Panel's finding 
concerning the patent rights  and did not include the Panel's finding on the data rights. Second, it 
observed that the Panel proceeded on the assumption  that the allocation of patent rights was in 
some respects a self-standing subsidy that was separate from the payments and other support 
provided under the NASA/USDOD contracts and agreements. The Appellate Body proceeded on the 
same assumption. Third, the Appellate Body noted that any of its findings in connection with the 
specificity of the allocation of patent rights did not traverse the Panel's findings of specificity 
relating to the payments and other support provided under the NASA/USDOD contracts and 
agreements. 
The Panel found that, assuming arguendo  that the allocation of pa tent rights under NASA and 
USDOD R&D contracts and agreements with Boeing involved a subsidy within the meaning of 
Article 1.1 of the SCM Agreement – that is, a financial contribution that confers a benefit – the European Communities had failed to demonstrate that any such subsidy was specific within the meaning of Article 2 of the SCM Agreement. 
On appeal, the European Union alleged that the Panel erred in the interpretation and application of 
Article 2.1(a) of the SCM Agreement by considering that the US Government "as a whole" can be a "granting authority" for purposes of that provision. The European Union asserted that, in this case, 
the granting authorities are NASA and the USDOD. It  further argued that the Panel erred by failing 
to adjudicate the European Communities' arguments of de facto  specificity under Article 2.1(c) of 
the SCM Agreement. The United States respon ded that the European Union misinterpreted 
Article 2.1 in calling for an analysis based on a subset of the US legislation. According to the 
United States, the granting authority with respect to the allocation of patent rights under both the NASA and USDOD measures is the President of the United States.  
Although neither participant challenged the Panel's arguendo  approach on appeal, the 
Appellate Body expressed some reservations abou t it. The Appellate Body first noted that the 
Panel's failure to make an assessment under Article 1.1 of the SCM Agreement was problematic in this case because there might have been some overlap in the claims put forward by the WT/AB/18 
 
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  European Communities. It also found it difficult to reach a finding on specificity because an 
assessment under Article 2.1 follows an assessment of whether a financial contribution conferring a benefit within the meaning of Article 1 of the SCM Agreement exists. The Appellate Body also observed that, were it to disagree with the Panel's finding, the Panel's arguendo approach could 
lead to the claim remaining unresolved.  
The Appellate Body then proceeded to assess whether the Panel erred in the interpretation of 
Article 2.1(a) of the SCM Agreement. It noted that subparagraph (a) of Article 2.1 calls for a 
determination of whether access to a subsidy is limited to "certain enterprises". In its view, while 
the scope and operation of the granting authority is  relevant to the question of whether such an 
access limitation with respect to a particular class of recipients exists, it is important to keep in mind that it is not the purpose of a specificity analysis to determine whether the authorities 
involved in granting the subsidies constitute a single subsidy grantor  or several grantors . The 
Appellate Body therefore did no t believe that that the Panel erred in the interpretation 
of Article 2.1 of the SCM Agreement by a ssessing the alleged subsidies provided by 
NASA and the USDOD against the legal framewor k that exists in the United States for 
the allocation of patent rights under government R&D contracts and agreements and pursuant to which these granting authorities op erate. Accordingly, it rejected this aspect 
of the European Union's appeal.   
With respect to the Panel's application of Article 2.1(a) of the SCM Agreement, the Appellate Body 
noted that both under the general regulations, which apply to the USDOD and other departments, and under a NASA waiver, title over the invention will  belong solely to the contractor, even though 
the mechanism for the initial allocation of patent rights is formally somewhat different. It also 
noted that the retention of title by contractors,  under the USDOD regulations, and the waiver of 
patent rights, under the NASA regulations, are ba sed on a broader US legislative and regulatory 
framework pursuant to which enterprises that perform R&D work for the US Government get to 
enjoy the patent rights over inventions discovered. The Appellate Body thus did not see a 
basis to find that such subsidy was explic itly limited to certain enterprises, and 
therefore specific within the meaning of  Article 2.1(a) of the SCM Agreement.   
Lastly, the Appellate Body examined whether the Panel erred by failing to address the European 
Communities' allegation of de facto  specificity under Article 2.1(c) of the SCM Agreement. It noted 
in this regard that the language of Article 2.1(c) – particularly the initial clause "notwithstanding 
any appearance of non-specificity resulting from the application of the principles laid down in 
subparagraphs (a) and (b)" – indicates that the application of this provision will normally follow the application of the other two subparagraphs of Article 2.1. It further noted that a conclusion that 
there is "an appearance of non-specificity" under Article 2.1(a)-(b) does not provide a panel 
license to refrain from examining claims under Article 2.1(c). The Appellate Body therefore 
found that the Panel erred by failing to examine the European Communities' arguments 
under Article 2.1(c) and therefore concluded that the Panel's overall finding under 
Article 2.1 could not be sustained. Howe ver, it was not persuaded that, on the 
assumption that the allocation of patent rights  is a self-standing subsidy, it was "in fact" 
specific within the meaning of Article 2.1(c) of the SCM Agreement, and thus declined to 
make such a finding.  
4.2.2.6  Washington State B&O tax rate reduction 4.2.2.6.1  Financial contribution 
The Panel evaluated whether the Washington State B&O tax rate reduction in House Bill 2294 for 
commercial aircraft and component manufacturers constitutes a financial contribution within the meaning of Article 1.1(a)(1)(ii) of the SCM Ag reement. On the basis of its review of the 
Appellate Body's reasoning in US – FSC  and US – FSC (Article 21.5 – EC) , the Panel concluded 
that, where it is possible to identify a general rule  of taxation applied by the Member in question, a 
"but for" test can be applied to determine whet her the challenged measure is an "exception" to 
that "general" rule. The Panel considered that there was a general rate of taxation of 0.484% for 
manufacturing and wholesaling activities and 0.471% for retailing activities, and that the reduced 
taxation rate of 0.2904% applicable under House Bill 2294 to the activities of commercial aircraft and component manufacturers constituted an exception to this rule. The Panel further concluded 
that, were it not for the exceptional tax rate set out in House Bill 2294, commercial aircraft and 
component manufacturers would be subject to the hi gher rates of taxation. Accordingly, the Panel WT/AB/18 
 
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  found that the Washington State B&O tax rate reduction results in the foregoing of revenue 
otherwise due, and therefore constitutes a financia l contribution under Article 1.1(a)(1)(ii) of the 
SCM Agreement. 
The United States argued that the Panel applied an  improper standard under Article 1.1(a)(1)(ii) of 
the SCM Agreement by elevating the "but for" test to the status of a general rule. The 
United States also alleged two "specific errors of law" regarding the Panel's application of Article 1.1(a)(1)(ii). First, the United States contended that the Panel erred in its identification of 
the proper benchmark by failing to examine the Washington State B&O tax system as a whole, 
consisting of 36 activity classifications subject to B&O tax. Second, the United States asserted that the Panel erred in failing to account for the fact that, due to the "pyramiding" inherent in the Washington State B&O tax system, the effective tax rate for aerospace manufacturing exceeded 
the average effective tax rate for businesses in Washington State. The European Union argued that 
the Panel did not misinterpret the legal standard . The European Union also maintained that the 
Panel properly rejected using the range of 36 B&O tax rates in Washington State as the normative 
benchmark for purposes of establishing whether a financial contribution exists, and that the Panel 
properly excluded from its analysis consideratio n of pyramiding and the average effective B&O tax 
rate in Washington State. 
The Appellate Body considered when a governme nt can be found to have foregone revenue 
otherwise due within the meaning of Article 1.1(a)(1)(ii) of the SCM Agreement. The Appellate Body recalled core aspects of its reasoning in US – FSC and US – FSC (Article 21.5 – EC) and concluded that WTO Members are sovereign in determining the structure and rates of their 
domestic tax regimes, and that they must have some flexibility to make adjustments to their 
systems. The Appellate Body explained that the identification of circumstances in which government revenue that is otherwise due is fo regone requires a comparison between the tax 
treatment that applies to the alleged subsidy recipients and the tax treatment of comparable 
income of comparably situated taxpayers. First,  a panel should identify the tax treatment that 
applies to the income of the alleged recipients, considering the objective reasons behind that 
treatment and the reasons underlying any change in that treatment. Second, the panel should 
identify a benchmark for comparison by developing an understanding of the tax structure and principles that best explains that Member's tax regime, and providing a reasoned basis for what constitutes comparable income of comparably situ ated taxpayers. Third, the panel should compare 
the reasons for the challenged tax treatment with the benchmark tax treatment it has identified to 
determine whether, in the light of the treatment of  the comparable income of comparably situated 
taxpayers, the government is forego ing revenue that is otherwise due. 
The Appellate Body then turned to consider the United States' appeal. The Appellate Body noted 
the Panel's view that Article 1.1(a)(1)(ii) requir es a comparison of the fiscal treatment under a 
challenged measure with that in respect of either (i) a general rule of taxation, or (ii) comparable 
income of comparably situated taxpayers. This approach suggested that, as long as a general rule 
of taxation is identified, it is sufficient to conduct an analysis limited to the determination that, but for the challenged measure, higher tax liability would have attached by virtue of the general rule. Although this approach could have led to an overly narrow conception of which rules are relevant 
in identifying a benchmark, the Panel nevertheless indicated its awareness that the identification of 
a general rule does not lead invariably to the exclusive application of such a test. The Appellate Body therefore did not consider that th e Panel's articulation of the legal standard was 
inconsistent with Article 1.1(a)(1)(ii) of the SCM Agreement. 
The Appellate Body examined next the Washington State B&O tax rate reduction provided for in 
House Bill 2294 and found that it established an exceptional rate of taxation of 0.2904% below the 
general rates of 0.484% for manufacturing and wh olesaling activities and 0.471% for retailing 
activities. Although the Appellate Body noted the limitations inherent in identifying a benchmark within a domestic tax regime solely by reference to historical tax rates, it considered that the higher taxation rates did not reflect only what previously  applied to commercial aircraft 
manufacturing activities, but rather what would currently  apply to these activities if certain 
conditions for the lower rates were not met. The Appellate Body also considered that the Panel 
examined the relative tax treatment of other ta xpayers engaged in the same broad category of 
business activities as commercial aircraft manufacture rs so as to ensure that the "exceptions" were 
not so numerous as to undermine the existence of a "general rule". In these circumstances, the 
Appellate Body found that the Panel properly concluded that the application of the tax rate WT/AB/18 
 
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  of 0.2904% under House Bill 2294 indicated the fo regoing of government revenue otherwise due 
within the meaning of Article 1.1(a)(1)(ii) of the SCM Agreement. 
The Appellate Body rejected the United States' argu ments that the Panel erred in the application of 
the legal standard under Article 1.1(a)(1)(ii). Firs t, the Appellate Body was not persuaded that the 
Washington State B&O tax system as a whole could serve as a benchmark, whether on the basis of 
all of the tax rates within that system, or on the basis of an average representing all such rates. Such an exercise either fails to engage the inqu iry as to an appropriate benchmark, or leads to 
potentially indiscriminate outcomes whereby rates at or above an average rate would appear 
permissible, whereas rates below that benchmark would be deemed a financial contribution. Second, the Appellate Body saw no indication in the Panel record that adjusting tax rates to approximate the average effective tax rate, adjusted to account for "pyramiding" within the 
Washington State tax system, reflected a principle under the Washington State B&O tax regime. 
The Appellate Body therefore upheld the Panel's finding that the reduction in the Washington State B&O tax rate applicable  to commercial aircraft and component 
manufacturers constitutes the foregoing of  revenue otherwise due, and therefore a 
financial contribution within the meaning of  Article 1.1(a)(1)(ii) of the SCM Agreement.  
4.2.2.7  Specificity 
The Panel also evaluated whether the Washington State B&O tax rate reduction granted under 
House Bill 2294 is a subsidy that is specific within the meaning of Article 2.1(a) of the SCM Agreement. The Panel considered that the taxation subsidies under House Bill 2294 are expressly and unambiguously limited to enterprises manufacturing commercial airplanes or components for 
such airplanes, and that this constitutes a limitation either to an "industry" or to a "group of 
enterprises" within the meaning of Article 2 of the SCM Agreement. The Panel also examined the 
broader Washington State B&O taxation system and concluded that, although the aerospace 
industry was not alone in receiving an exception to the general rates of taxation for 
manufacturing, wholesaling, and retailing activities, the Panel was not persuaded that this led to a finding of non-specificity under Article 2.1(a). The Panel considered that if the differential B&O tax 
rates were truly implemented as part of a common subsidy programme, it would be reasonable to 
expect some links between the individual tax re ductions, for example, in the timing of their 
introduction, in their purpose, or in their levels. The Panel found, however, that the United States had not provided evidence to suggest that the re ductions to separate industries are part of a 
wider, generally available and explicit programme of tax reductions, and that, in fact, some of the 
evidence submitted by the United States ran counter to this argument. The Panel thus found that the Washington State B&O tax rate reduction granted under House Bill 2294 was a subsidy that is 
specific within the meaning of Article 2.1(a) of the SCM Agreement. 
On appeal, the United States claimed that the Panel failed, in the application of Article 2.1(a), to 
consider the entirety of the subsidy that the Pane l had found to exist. In the United States' view, 
the Panel failed to analyze whether, taking all of the differential tax rates in the Washington State 
tax system together, access to the subsidy was limited to certain enterprises under Article 2 of the SCM Agreement. First, the United States argued that, because the Panel had found that the application of a tax rate lower than the standard rate constitutes a subsidy under Article 1 of the 
SCM Agreement, the Panel was required to make an assessment of whether access to that subsidy 
was explicitly limited to certain enterprises. Seco nd, the United States challenged the basis for the 
Panel's conclusion that it was not appropriate to consider the various B&O differential tax rates as 
part of the same subsidy programme. The Europe an Union contended that the Panel needed to 
examine only House Bill 2294 to arrive at a finding of de jure  specificity, but that the Panel 
nevertheless proceeded to evaluate the B&O ta xation system as a whole. In doing so, the 
European Union maintained, the Panel found that there was no evidence to justify considering all 
of the B&O tax rate exceptions together as a sing le measure for purposes of its analysis. According 
to the European Union, the Panel rightly called for evidence of a connection among the multiple tax breaks in order to determine that they were part of a common subsidy programme, and noted 
the lack of any such evidence on the Panel record. 
The Appellate Body explained that, although the su bsidy as defined in Article 1.1 is the starting 
point of the analysis under Article 2.1(a), the scope  of the inquiry is broader in the sense that one 
must examine the legislation pursuant to which the granting authority operates, or express acts of 
the granting authority. That inquiry requires careful scrutiny of the relevant legislation to determine whether the subsidies are provided pursuant to the same subsidy scheme. Once a WT/AB/18 
 
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  subsidy scheme is identified, then the question is whether that subsidy is explicitly limited to 
"certain enterprises". The Appellate Body consid ered that for purposes of the assessment under 
Article 2.1, the subsidy as defined in Article 1.1 was the Washington State B&O tax rate reduction contained in House Bill 2294. The Panel, however, did not limit the scope of its analysis to the B&O 
tax rate reduction enacted under House Bill 2294, but rather proceeded to examine the 
Washington State B&O taxation system as a whole.  The Appellate Body considered that the Panel 
correctly broadened the scope of its analysis to the Washington State B&O tax regime and sought 
to verify whether under this broader legal framework the same subsidy was being made available 
to other enterprises or industries. The Appellate Body understood the Panel to have concluded that the same subsidy was not made available to other enterprises under the Washington State B&O tax regime, and that the other differential B&O tax rates contained in the Washington State tax 
code were not part of the same subsidy scheme as the challenged B&O tax rate reduction. The 
Appellate Body therefore concluded that the Panel' s approach was consistent with the scope of the 
inquiry under Article 2.1(a). 
The Appellate Body further agreed with the Panel that, where multiple subsidies are part of the 
same subsidy scheme, one would expect to find links or commonalities between those subsidies. 
The Appellate Body recognized that the Washington  State B&O tax rate reduction, together with 
the other differential tax rates, were expressed as exceptional rates to the general rates set out in 
the same tax code. The Appellate Body considered that the fact that a series of differential tax rates are located in the same section of the tax code, while relevant, cannot be dispositive as to whether they constitute part of the same subsidy scheme for purposes of a specificity analysis 
under Article 2.1(a). The Appellate Body further noted that House Bill 2294 did not indicate that it 
was enacted as part of a broader subsidy scheme, and that the Panel record supported the Panel's 
statement that the differential tax rates were intr oduced at a range of different times and for a 
variety of different purposes. Furthermore, alth ough the United States had identified that 
"pyramiding" was a problem associated with the B&O tax, the Appellate Body noted the Panel's finding that exhibits on the Panel record did not support the conclusion that any tax rate 
reductions were introduced in order to combat this problem. The Appellate Body further noted 
that, apart from observing that all of the differential tax rates are contained within the Revised 
Code of Washington , the United States had not referred to any evidence on the Panel record to 
support the proposition that the B&O tax rate reduction applicable to commercial aircraft and 
component manufacturers and the other differential tax rates form part of the same subsidy 
scheme. Accordingly, the Appellate Body found that  the Panel had a proper basis to conclude that 
the differential B&O tax rates set out in the Revised Code of Washington  do not form part of a 
common subsidy programme. The Appellate Body therefore up held the Panel's finding that 
the Washington State B&O tax rate reductio n granted under House Bill 2294 is a subsidy 
that is specific within the meaning of  Article 2.1(a) of the SCM Agreement.   
4.2.2.8  City of Wichita IRBs – Specificity 
The Panel considered whether tax abatements provided to Boeing pursuant to IRBs issued by the 
City of Wichita are a specific subsidy under Ar ticle 2.1(a) of the SCM Agreement. The Panel 
considered that the relevant Kansas State statutory provisions authorizing the issuance of IRBs by 
Kansas cities and counties did not expressly limit the availability of the subsidy within the meaning 
of Article 2.1(a). The Panel therefore turned to  consider the European Communities' claim of 
de facto  specificity under Article 2.1(c) of the SCM Agreement, and in particular whether Boeing 
and Spirit were granted "disproportionately large" amounts of IRB subsidies within the meaning of 
that provision. The Panel considered that, in assessing whether a subsidy granted to certain enterprises is "disproportionately large", it is necessary to convert the amount of the subsidy into 
a ratio and then to assess whether that ratio is lacking proportion. The Panel noted that there is no 
explicit guidance in the text of Article 2.1(c) regarding against what the relative amount of subsidy received by Boeing and Spirit should be compared. Although the Panel considered that neither of the approaches suggested by the parties was completely satisfactory, it ultimately endorsed the 
European Communities' approach of assessing Boeing's and Spirit's receipt of IRB subsidies 
against a benchmark that measured the companie s' share of manufacturing employment in the 
City of Wichita. The Panel concluded that there was a significant disparity between the proportion 
of IRBs received by Boeing and Spirit and their place within the goods sector of the economy, as 
indicated by the proportion of the sector they employ. Accordingly, the Panel found that the IRB 
tax abatements granted to Boeing and Spirit were disproportionately large, and therefore specific 
to "certain enterprises" within the meanin g of Article 2.1(c) of the SCM Agreement. WT/AB/18 
 
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  The United States challenged the Panel's decision  to use company-specific employment levels of 
Boeing and Spirit, relative to total manufacturing employment in the City of Wichita, as the benchmark for its disproportionality analysis. The United States considered that the Panel's approach, by focusing on a single numerical ratio, and using the total level of manufacturing 
employment within the jurisdiction of the granting authority as its baseline, did not provide a valid 
benchmark against which to measure the proportionality of a subsidy like the IRBs. The European Union argued that the United States fa iled to present any evidence to demonstrate that 
the share of IRB benefits received by Boeing and Spirit indeed reflected its participation in the 
Wichita economy, or that reliance on employment levels as a measure of economic participation was misleading.  
The Appellate Body noted that the Panel's conclusion that the IRB subsidies are not specific within 
the meaning of Article 2.1(a) was not appealed. The Appellate Body further observed that the 
Kansas State authorizing statute expresses eligibility for IRB benefits in very broad terms, noting no limitations on access to a particular enterprise or industry or group of enterprises or industries. 
The statute also indicates that its purpose is to encourage new business to locate in Kansas State, 
to assist in the retention of existing business, and to promote economic stability through the diversification of industry. In the Appellate Body's view, these and other indicators pointed to 
broad access to IRB benefits without any apparent limitation to a particular enterprise or industry, 
or group thereof. Moreover, the Appellate Bo dy considered that, although the European 
Communities had not presented a claim under Article 2.1(a), it was correct for the Panel to have assessed whether the legislation pursuant to which the IRB benefits were granted explicitly limited 
access to certain enterprises within the meaning of that provision. 
The Appellate Body turned next to review the Panel's consideration of the IRB subsidies under 
Article 2.1(c). The Appellate Body considered th at the inquiry under Article 2.1(c) focuses on 
whether a subsidy, although not apparently limited to certain enterprises from a review of the 
relevant legislation or express acts of a granting authority, is nevertheless allocated in a manner that belies the apparent neutrality of the measure. Concerning the factor under Article 2.1(c) 
relating to disproportionately large amounts of subsidy, this inquiry requires a panel to examine 
the reasons as to why the actual allocation of "amo unts of subsidy" differs from an allocation that 
would be expected to result if the subsidy were ad ministered in accordance with the conditions for 
eligibility for that subsidy as assessed under Article 2.1(a) and (b). In the Appellate Body's view, 
where the granting of the subsidy indicates a disp arity between the expected distribution of that 
subsidy, as determined by the conditions of eligibility, and its actual distribution, a panel will be required to examine the reasons for that disparity so as ultimately to determine whether there has 
been a granting of disproportionately large amounts of subsidy to certain enterprises.  
On that basis, the Appellate Body turned to consider the reasons as to why the allocation of IRB 
subsidies granted to Boeing and Spirit by the City  of Wichita may or may not be disproportionately 
large. The Appellate Body noted that, because IRBs are available to enterprises that seek to 
purchase, construct, or improve various types of commercial or industrial property, enterprises that would seek to have the City of Wichita issue IRBs on their behalf are those that intend to invest in property development. Although the Appe llate Body recognized that enterprises that are 
actually in a position to avail themselves of IRB benefits at any given time represent only a subset 
of all enterprises in Wichita, it nevertheless considered that, on the basis of the conditions established for IRB eligibility, a wide distribution of those benefits across various sectors of the 
Wichita economy was expected. In the Appellate Body's view, the fact that Boeing and its 
successor received over two thirds of all IRB prop erty tax abatements from the City of Wichita 
over a 25-year period provided a reason to believe that the IRB subsidies were granted in 
disproportionately large amounts to these enterprises.  
The Appellate Body did not consider that the fo cus by the parties and the Panel on determining 
what share of employment Boeing and Spirit ha d within the Wichita economy was particularly 
meaningful for the inquiry of whether the IRB subsidies granted to Boeing and Spirit were 
disproportionately large. Although it acknowledged that examining qualifying investments would 
have been a reasonable basis on which to show why the 69% figure did not indicate that IRB subsidies were granted in disproportionately larg e amounts, the Appellate Body did not see that 
the United States provided evidence in support  of such an explanation. The Appellate Body 
moreover did not see that the United States demonstrated that, even taking into account the particular focus in Wichita on aircraft manufacturing, Boeing and Spirit would be expected to 
receive over two thirds of IRB subsidies. The United  States thus failed to provide sufficient reasons WT/AB/18 
 
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  supported by evidence to undermine the assessment that the granting to Boeing and Spirit of 69% 
of the amounts of IRB subsidy represents an alloca tion at variance from the expected distribution 
of the subsidy in accordance with the conditions for eligibility set out in the relevant legislation. The Appellate Body therefore upheld, albeit for different reasons, the Panel's finding 
that the IRB subsidies provided by the City of  Wichita to Boeing and Spirit are specific 
within the meaning of Article 2.1(c) of the SCM Agreement.  
4.2.3  Adverse effects 
4.2.3.1  Technology effects of the aeronautics R&D subsidies 
4.2.3.1.1  The Panel's analysis In this part, the Panel considered whether, as alleged by the European Communities, the 
aeronautics R&D subsidies caused adverse effects to  Airbus through their "technology effects". The 
aeronautics R&D subsidies, which the Panel found to amount to at least $2.6 billion, consist of: 
(i) payments made to Boeing and access to NASA fa cilities, equipment, and employees provided to 
Boeing by NASA pursuant to procurement contracts and Space Act Agreements entered into under 
the eight aeronautics R&D programmes at issue; and (ii) payments made to Boeing and access to 
USDOD facilities provided to Boeing by USDOD pursuant to assistance instruments entered into under the 23 USDOD RDT&E programmes at issue. By "technology effects", the European 
Communities meant that the aeronautics subsidies "have helped Boeing develop, launch and 
produce a technologically-advanced 200-300 seat LCA much more quickly than it could have on its own".  
The Panel structured its analysis of the alleged technology effects of the aeronautics R&D subsidies 
i n  t w o  s t a g e s ,  b e g i n n i n g  w i t h  a n  a n a l y s i s  o f  t h e  e f f e c t  o f  t h e  s u b s i d i e s  o n  B o e i n g ' s  o f f e r i n g  o f  
the 787, and followed by an analysis of the effect of the subsidies on Airbus' prices and sales. The 
Panel explained that it would take into account relevant non-attribution factors, and that its 
analysis would be counterfactual in nature. 
At the close of its analysis of the effects of the subsidies on Boeing, at the first stage, the Panel 
stated that the "aeronautics R&D subsidies contributed in a genuine and substantial way to 
Boeing's development of technologies for the 787 ". The Panel also concluded that, without the 
subsidies, Boeing would not have been able to launch an aircraft incorporating all of the technologies that are incorporated on the 787 in 2004, with promised deliveries commencing in 2008. At the second stage of its analysis in which the Panel considered the effect of the 
aeronautics R&D subsidies on Airbus' prices and sales, the Panel concluded that, but for the subsidies, Airbus would not have suffered significant lost sales, a threat of displacement or impedance of exports from Australia, Iceland, Kenya, and Ethiopia, or significant price 
suppression. On the basis of these two intermediate  conclusions, the Panel found overall that the 
effect of the aeronautics R&D subsidies was a threat of displacement and impedance of European Communities' exports from third-country ma rkets within the meaning of Article 6.3(b) of 
the SCM Agreement, with respect to the 200 300 seat LCA market, and significant lost sales and 
significant price suppression, within the meaning of Article 6.3(c) of the SCM Agreement with 
respect to that product market, each of which constitute serious prejudice to the interests of the European Communities within the meaning of  Article 5(c) of the SCM Agreement.  
4.2.3.1.2  Claims and arguments on appeal 
On appeal, the United States sought reversal of a number of intermediate findings made by the 
Panel at both stages of its causation analysis, which it alleged undermined the overall conclusion 
that the aeronautics R&D subsidies caused adve rse effects to Airbus, through its technology 
effects. With respect to the first stage, the United States identified five main findings and/or reasoning of the Panel (referred to below) that it alleged, when considered in their totality, 
attenuate the genuine and substantial causal link between the aeronautics R&D subsidies and the 
adverse effects. Separately, the United States argued that the Panel's counterfactual analysis relating to the first and second stages was inconsistent with the legal requirements of Articles 5 and 6 of the SCM Agreement. Finally, the United St ates challenged discrete elements of the Panel's 
reasoning that the aeronautics R&D subsidies caused serious prejudice to Airbus in the form of 
significant lost sales, threat of displacement and impedance, and significant price suppression. For WT/AB/18 
 
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  its part, the European Union disagreed that any part of the Panel's analysis was flawed, and 
objected to many of the United States' arguments on the ground that they implicated the Panel's 
weighing of facts and evidence and should have been brought as claims challenging the Panel's objectivity under Article 11 of the DSU.  
4.2.3.1.3  The Appellate Body's findings 
4.2.3.1.3.1  The Panel's analysis of the e ffects of the aeronautics R&D subsidies on 
Boeing 
As a preliminary matter, the Appellate Body iden tified and addressed one of the key issues of 
contention between the parties, namely, the proper  characterization of the United States' claims 
and, in particular, whether they implicate the Panel's application of the legal standard to the facts of this dispute, or, rather, exclusively the Panel' s appreciation of the facts. The United States 
argued that, despite having appropriately identified the legal requirements under Articles 5(c) 
and 6.3, in applying them, the Panel had taken "impermissible short-cuts". The European Union countered that many of the United States' argu ments reflected no more than mere disagreement 
with the Panel's factual findings. 
The Appellate Body recalled that the causation requirement under Articles 5(c) and 6.3 involves 
the establishment of "a genuine and substantial" causal link between the subsidies in question and 
the alleged adverse effect. It further recognized the difficulty of distinguishing clearly between 
issues that are purely legal or purely factual, or are mixed issues of law and fact. The Appellate Body highlighted that a party is free to frame its claim on appeal as it sees fit, but that important consequences flow from that choice, including the st andard of review that will apply in adjudicating 
that claim. While noting that the Panel in this dispute used language reminiscent of the "genuine 
and substantial" legal standard articulated by the Appellate Body – for instance, in stating that the 
aeronautics R&D subsidies contributed in a "genuine and substantial" way to the development of 
the 787 – the Appellate Body did not consider this  alone to be determinative. The Appellate Body 
was cognisant that in reviewing a panel's findings, it is often difficult to disentangle legal conclusions or legal reasoning from factual findings, and that where findings were ambiguous, it 
would inevitably fall on the Appellate Body to determine whether a finding – and a related 
challenge to it on appeal – is properly characterized as legal or factual, in the circumstances of a specific case. It explained that it would proceed to evaluate the United States' claims as framed, 
namely under the relevant legal standard, save where it had itself determined that the Panel's 
finding, and the United States' challenge to it, relate exclusively to the Panel's factual assessment, 
which it could not review absent a claim under Article 11 of the DSU.  
The Appellate Body then proceeded to consider ea ch of the grounds of the United States' appeal. 
First, the United States alleged that the Panel erred when it "extrapolated" findings with respect to 
three NASA composites programmes – the ACT, AST, and R&T Base programmes – to the remaining R&D programmes that were less relevant and bore little relation to the technologies 
used on the 787. The Appellate Body dismissed this  argument on the ground that the causal link 
found by the Panel was based on its considerat ion that all of the NASA and USDOD programmes, 
to differing degrees, contributed to the process of technological development that eventually led to the commercialization of the 787 technologies, and did not rest on "extrapolation". This included 
even those programmes that ended in failure or di d not result in the creation of technologies 
directly applied on the 787. Far from attenuating or diluting any link, the Panel's assessment of the role of the remaining R&D programmes buttressed its overall finding that all of the aeronautics 
R&D subsidies contributed to the development of the technologies used on the 787. 
Second, the United States argued that, by misreading a table in a Study relating to NASA's system 
of categorizing research according to its level of maturity – the Peisen Study – the Panel 
miscalculated and understated the time and resources that Boeing, on its own, was required to 
invest to bring the technologies used on the 787 to commercial viability. Even though the 
Appellate Body agreed that the Panel had in fact  misread the table, and therefore underestimated 
the amount of time taken by Boeing to develop technologies, it dismissed the United States' claim 
because it involved an error in the appreciation of the facts, and consequently could only be 
reviewed under Article 11 of the DSU. In any even t, the Appellate Body did not consider that the WT/AB/18 
 
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  numerical error by the Panel vitiated the overa ll finding of the Panel that the aeronautics R&D 
subsidies facilitated an earlier launch of the 787 than would have otherwise been possible.  
The third claim of the United States related to th e Panel' assessment of the role of Boeing and its 
suppliers in the development of the technologi es used on the 787. While appreciating their 
important contributions, and in particular Boeing's investment at early stages of research, the 
Appellate Body did not consider that the Panel had erred in concluding that the aeronautics R&D subsidies contributed in a genuine and substantial way to the 787. Recalling case law that in order 
to establish the existence of a genuine and substantial cause, a panel need not determine the 
subsidy in question to be the sole, or even the only substantial  cause of the alleged adverse effect, 
the Appellate Body referred to findings of the Panel that the subsidies operated complementarily with Boeing's own internal R&D efforts, and that in the earlier stages of research, the subsidies 
alleviated the initial burden for the private sector when technology was at its lowest stage of 
maturity and where risk was highest. The United States had failed to explain how the contribution of Boeing and its suppliers attenuates that important role. Separately, the Appellate Body 
dismissed the sole claim brought by the United St ates under Article 11 of the DSU in relation to 
technology effects, in respect of a finding by the Panel that "Boeing's ability to use other companies' commercially available technologies on the 787 was due to 'the knowledge and 
experience that Boeing obtained pursuant to the aeronautics R&D subsidies as an integrator of the 
various technologies'". The Appellate Body did so because the United States had failed to demonstrate that this statement lacked an evidenti ary basis, or was material to the Panel's overall 
conclusion that the aeronautics R&D subsidies contributed to the 787 technologies.  
Fourth, the United States claimed that a finding of the Panel that there are restrictions on the 
dissemination of certain aspects of NASA-funded research results, and that public dissemination 
does not occur immediately, implied that Boeing restricted dissemination only for a limited time. 
The eventual dissemination meant that the Panel should have discounted the value of the NASA 
subsidies which it had estimated to be worth $2.6 billion. The Appellate Body was not swayed by this argument because the most commercially valuable information was subject to data protection 
clauses in NASA contracts; the United States ha d not explained how the competitive position of 
Airbus was improved – or how Airbus suffered lesser adverse effects – because "certain aspects" of the results of the NASA research programmes were disseminated nor what the impact of any reduction in the $2.6 billion amount of the NASA subsidies would be on the Panel's finding; and 
finally, the claim brought by the United States wo uld require the Appellate Body to recalculate the 
value of the subsidies, which was outside the scope of appellate review. 
The final argument of the United States concerne d the magnitude of the subsidies, which the Panel 
had estimated to be worth at least $2.6 billion. The Appellate Body agreed  with the Panel that, 
although when compared to Boeing's own R&D expenditure and revenues, this amount was not large, consideration of relative cash value of the subsidies alone did not diminish the Panel's view 
that the subsidies allowed Boeing to overcome the disincentives in investing in risky aeronautics 
R&D.  
In sum, the Appellate Body rejected th e claim under Article 11 of the DSU, and 
dismissed all five of the United States' argu ments raised on appeal, either because they 
related solely to factual matters not subject to  an Article 11 challenge, or because, on 
the merits, the United States had not succeed ed in demonstrating that the Panel failed 
properly to find the existence of a ge nuine and substantial causal link. The 
Appellate Body concluded that the Panel did not err in stating, in paragraph 7.1773 of 
the Panel Report, that "the aeronautics R&D  subsidies contributed in a genuine and 
substantial way to Boeing's development of technologies for the 787" in 2004. 
4.2.3.1.3.2  The Panel's counterfactual analysis 
The second set of arguments raised by the United States relate to the counterfactual analysis 
conducted by the Panel which led it to conclude that "absent the aeronautics R&D subsidies, Boeing would not have been able to launch an aircraft incorporating all of the technologies that are 
incorporated on the 787 in 2004, with promised deliveries commencing in 2008". The Panel had 
arrived at this conclusion having stated that the two "most likely" scenarios befalling Boeing if it had not received the subsidies were: first, that Boeing would have developed a 767-replacement 
that incorporated all of the technologies that ar e incorporated on the 787, with a "significantly 
later" launch and promise of first deliveries; an d second that Boeing would have launched a 767 WT/AB/18 
 
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  replacement in 2004 that was technologically superior to the 767, but not as technologically 
innovative as the 787 (the "767-plus" scenario). As neither of these two scenarios involved the launch of a 787 in 2004, the Panel considered that it did not have reach "any definitive view" as to which of these outcomes would have occurred.  
On appeal, the United States challenged the Panel's counterfactual assessments at both the first 
and second stages of its analysis. Before addre ssing them, the Appellate Body made some general 
observations about how panels should assess counterfactual analyses pursuant to Articles 5(c) 
and 6.3. It noted that such an analysis may be useful but that the precise way in which it is 
deployed will vary depending on how the causal problem presents itself in a particular dispute. A counterfactual analysis may be highly quantitative, or predominantly qualitative in nature, or it might involve both quantitative and qualitative elements. The Appellate Body also observed that a 
complaining party may elect to employ a counterfactual analysis, and might find it difficult to 
establish causation of certain Article 6.3 phenomena (for example, impedance and price suppression) without such counterfactual argumentation. A panel evaluating the respective claims 
and defences of the parties will have to give due consideration to the use of a counterfactual 
analysis, especially when such an analysis forms part of the arguments submitted by the parties. The panel might decide to accept the counterfactual scenario(s) proposed by one party as to the 
market situation that would have prevailed absent the subsidies, but it is not bound to do so. A 
panel may even find it appropriate to construct its own counterfactual scenario(s). A panel is not required to identify and explore every possible hy pothetical market scenario, especially where the 
parties themselves have not elaborated upon, or substantiated the likelihood of, such possible 
scenarios. However, having selected a reasonable scenario, a panel should pursue its 
counterfactual analysis in a coherent and consistent fashion.  
In this dispute, the Appellate Body understood  the Panel's counterfactual analysis to be 
underpinned by the two counterfactual scenarios presen ted by the parties: the first, as argued by 
the European Communities was that, without the subsidies, Boeing would not have launched the 787 in 2004, but rather would have done so later; and the second, proposed by the 
United States was that, without the subsidies, Boeing would have launched the same 787 aircraft 
in 2004 because it had the experience and financial capacity to do so. The Panel had engaged with 
these two scenarios in its analysis, and at the close of the first stage of its analysis concluded, in favour of the European Communities, that the aeronautics R&D subsidies allowed Boeing to deliver 
the 787 earlier than would have otherwise been possible. At the second stage, the Panel had also 
agreed with the European Communities when it concluded that a 787 aircraft would not have been present in the market until "years later" (that is , not available to customers until well after 2004). 
Under that scenario, the market, during the reference period would most likely have consisted of 
the A330 and the 767, which were the two models available before 2004. As the A330 was the "undisputed market leader" in the 200-300 seat LC A market, with an 82% share of the market in 
2003, in the absence of subsidies, most sales would likely had gone to that aircraft, and with 
increased demand, the A330 would have maintained or even raised its prices. As the Appellate Body saw it, therefore, none of the arguments or evidence before the Panel supported a pursuit of a 767-plus scenario, referred to by the Panel.  
Turning to the specific arguments, the Appellate Body rejected the United States' claims to set 
aside the Panel's counterfactual analysis as related to the first stage since most of the arguments largely coincide with ones that the Appellate Body  had dealt with, and dismissed, in the previous 
part of the Report. These included arguments relating to Boeing's own involvement in research 
alongside NASA, its access to resear ch facilities, as well as its su bstantial financial capabilities. 
With respect to the United States' criticisms of the counterfactual analysis at the second stage, the 
Appellate Body noted that these arguments were premised on the scenario involving a 767-plus 
which it had already determined was not based on any counterfactual arguments of the parties, and for which there was no support in the Panel's reasoning or factual findings. 
For the above reasons, the Appellate Body found  that the Panel did not err in its use of a 
counterfactual analysis and therefore rejected the United States' request for 
consequential reversal of the Panel's findin g that the aeronautics R&D subsidies caused 
adverse effects to the interests of the European Communities. WT/AB/18 
 
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  4.2.3.1.3.3  The Panel's analysis of the e ffects of the aeronautics R&D subsidies on 
Airbus 
The Appellate Body addressed three sets of argume nts by the United States challenging the Panel 
findings of significant lost sales; threat of displacement and impedance; and significant price 
suppression. 
Significant lost sales The Panel found that four of the 10 sales campaigns referred to by the European Communities in 
support of its claim that the aeronautics R&D subsidies caused lost sales – that is, those involving 
Qantas, Ethiopian Airlines, Kenya Airways, and Icelandair – were lost by Airbus A330 and Original A350 because of the subsidy-induced performanc e characteristics, and 2008 delivery date, of 
the 787. The United States made two arguments concerning these findings. First, it alleged that 
the Panel's finding wrongly implies that sales of both the A330 and the Original A350 were lost for 
each sale gained by Boeing; and second that, as regards the Ethiopian Airlines, Icelandair, and Kenya Airways sales campaigns, the Panel failed to take into account "customer-specific situations" 
showing that Boeing's victory in these campaigns was not the effect of the aeronautics R&D 
subsidies. 
With respect to the first argument, the Appellate  Body disagreed that the Panel "double-counted" 
lost sales. While the United States' argument appeared to focus on an isolated Panel statement 
that, but for the subsidies, Airbus "would have made additional sales of the A330 and Original 
A350", in its analysis, the Panel neither stated nor implied that it considered that two sales had been lost by Airbus for each 787 ordered. The Appe llate Body referred to findings of the Panel that 
customers chose the 787 because it is more technologically advanced than either the A330 or the 
Original A350, and because of its low price. The evidence demonstrated that, in at least one sales campaign, Airbus did not offer either of these two aircraft and, in another, both the A330 and 
Original A350 were offered. Second, the Appellate Body observed that, in its findings of threat of 
displacement and impedance, the Panel stated that Airbus would have obtained additional orders for its "A330 or Original A350", which also discounted the United States' double-counting 
argument. Finally, the Appellate Body highlighted the ultimate conclusion of the Panel which 
referred to the 200-300 seat LCA market generally, and did not mention either or both specific 
Airbus LCA models.  
The Appellate Body also rejected the second argument of the United States regarding "customer-
specific situations". While expressing some concerns with the scarcity of the Panel's analysis as to 
why the presence of an all-Boeing fleet was deci sive for Continental Airlines, All Nippon Airways, 
and Japan Airlines, but not for Ethiopian Airlines, Icelandair, and Kenya Airways (which shared that 
characteristic), the Appellate Body considered that this argument could only be reviewed under 
Article 11 of the DSU because the United States sought to have the Appellate Body attribute different weight to a specific factor than did the Panel and the United States had not raised a claim 
under that provision. The Appellate Body made iden tical findings with respect to the argument that 
the Icelandair sales campaign shared features with the Royal Air Maroc sales campaign for which the Panel rejected the European Communities' claim of lost sales because of Airbus' "failure to submit a formal offer within the time limit specified". 
In the light of the above, the Appellate Bo dy dismissed the United States' request for 
reversal of the Panel's lost sales findings. 
Threat of displacement and impedance 
The United States alleged that the Panel failed to establish that Ethiopia, Kenya, and Iceland 
constitute third-country "markets" within the meaning of Article 6.3(b) and moreover, that the low volume of orders generated in the sales campaigns involving Ethiopia, Iceland, and Kenya 
demonstrates that there was no "trend" of Airbus  exports being threatened with displacement and 
impedance. 
The Appellate Body noted that the Panel's finding of a threat of displacement and impedance was 
based on delivery data for the four countries where the sales campaigns on which its lost sales 
finding was based took place. It also noted that the Panel relied on order data that was capable of WT/AB/18 
 
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  showing that future imports or exports would be displaced or impeded and, therefore, of 
establishing the existence of a threat of serious prejudice. 
With respect to the proper meaning of the term "market" as used in Article 6.3(b) of the 
SCM Agreement, the Appellate Body recalled its findings in EC and certain member States – Large 
Civil Aircraft  that a market is a place where products compete, and that it can have both 
geographic and product components. A plain readin g of Article 6.3(b), however, reveals that a 
finding of displacement or impedance under that provision is to be limited to the territory of the 
third country at issue. The Appellate Body endorsed  the Panel's finding in this dispute that the LCA 
market is a global market geographically and that competition in each of the three national LCA product markets that it had identified takes place on a worldwide basis. It also did not find fault with the Panel's finding that, in this case, it was "not required to consider whether the European 
Communities ha[d] established the existence of su ch country markets". Rather, as the Panel had 
found, the issue before it was whether, "based on evidence of sales occurring in those countries, [it was] satisfied that there ha[d] been displacement and impedance … in the particular country 
market." As this approach was consistent with the approach it had taken in EC and certain 
member States – Large Civil Aircraft , the Appellate Body rejected the United States' argument that 
the Panel erred by assuming the existence of third-country markets. 
By contrast, the Appellate Body agreed with the Un ited States that the data and evidence before 
the Panel relating to Ethiopia, Kenya, and Iceland disclosed insufficient "trends" to warrant a finding of a threat of displacement and impedance for these markets. Recalling guidance in EC and 
certain member States – Large Civil Aircraft  that a panel assessing a claim of displacement would 
have to ascertain that at least a portion of the ma rket share of the exports of the like product of 
the complaining Member must have been taken over  or substituted by the subsidized product, and 
that it must be possible to discern trends in vo lume and market share, the Appellate Body was not 
convinced that there was evidence of the "substitut ion" or taking over of the market by the 787 in 
Ethiopia, Kenya and Iceland. With respect to the Panel's findings of impedance, the Appellate Body also noted that impedance refers to a situation where the exports or imports of the like product of 
the complaining Member would have expanded more  had they not been "obstructed", "hindered", 
or "held back" by the subsidized product. A findin g of impedance should be supported by evidence 
of changes in the relative market share in favour of the subsidized product to demonstrate "clear trends" in the development of the market concerned. However, unlike with displacement, 
impedance may not be a visible phenomenon, which meant that evidence of trends may not be 
dispositive. The Appellate Body noted that there was no clear evidence of trends in these third-
country markets in terms of impedance either. Moreover, as with its findings of displacement, the 
Panel did not provide a specific explanation or reasoning as to how it reached its finding of a threat 
of impedance.  
In the light of the above, the Appellate Body rejected the United States' appeal that the 
Panel failed to establish third-country "marke ts" for Iceland, Kenya, and Ethiopia, but 
reversed the Panel's finding that there was a threat of displacement and impedance in 
those same third-country markets beca use of the absence of clear trends. 
Significant price suppression 
The United States sought reversal of "three findings" of the Panel, namely: (i) that an effect of the 
aeronautics R&D subsidies was significant price suppression with regard to the A330 in the world market; (ii) that an effect of the aeronautics R&D subsidies was significant price suppression with 
regard to the Original A350 in the world market; and (iii) that an effect of the aeronautics R&D 
subsidies was significant price suppression with regard to Airbus 200-300 seat LCA. 
As regards the first argument that the Panel improperly relied on a perceived coincidence between 
the 2004 launch of the 787 and a decline of prices  for the A330, the Appellate Body referred to 
(indexed) pricing data for the A330, as well as  market share trends in the 200-300 seat LCA 
market (based on orders from 2000-2006) which th e Panel had relied on to conclude that the 
effects of the aeronautics R&D subsidies was price suppression. The Appellate Body noted that the 
Panel had found that the evidence – showing declin ing prices of the A330 in the reference period 
and an upswing in the 787 market share in the ligh t of strong demand – was consistent with what 
one would expect to occur from the introduction of a technologically-superior aircraft, offering 
operating cost advantages over older-technology aircraft, for around the same price. The WT/AB/18 
 
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  Appellate Body was satisfied that the Panel consid ered the relevance of the price and market share 
trends and did not find error in the inferences and conclusions that it drew from the evidence.  
The second set of arguments relate to the evidence  relied on by the Panel for the Original A350. In 
the United States' view, the Panel's finding was in error because the Panel did not rely on pricing 
data, but rather on "anecdotal evidence" relating to sales campaigns representing 30% of sales of 
the Original A350 in the 200-300 seat LCA ma rket. In rejecting these arguments, the 
Appellate Body noted first that evidence from sales campaigns which accounted for one third of 
Original A350 sales during the reference period constituted direct and sufficiently representative 
evidence of what was happening to the prices of the Original A350 and therefore provided a sufficient basis to conclude that there was price suppression with respect to the Original A350. Second, the Appellate Body rejected the argument that price trend data was indispensable for a 
finding of price suppression for the Original A350.  The Appellate Body noted that, while price trend 
data was relevant to a price suppression analysis, it was not conclusive of the existence of price suppression. Finally, the Appellate Body agreed with the European Union that pricing trends for the 
Original A350 would not have been particularly probative in this dispute since prices for the 
Original A350 were never unaffected by the existe nce of the 787 given that the Original A350 was 
launched in a market where the effects of the subsidies were already being felt. 
Finally, the United States argued that the Panel was required, but failed, to determine the 
existence of significant price suppression for the product "as a whole", comprising the A330, 
Original A350, and A350XWB-800. The Appellate Body did not consider the Panel's approach to be in error. With respect to the A350XWB-800, the Un ited States had not pointed to evidence that 
consideration of prices for this model would change the Panel's conclusion. With respect to the 
A330 and Original A350, the Appellate Body found  the evidence relied on by the Panel to be 
sufficient since the Panel had reviewed pricing data for the A330 (accounting for 65.7% of total 
sales of Airbus aircraft), and, as noted above, ha d relied on evidence relating to the sales of the 
Original A350 (accounting for 30.4% of total Original  A350 sales, or 10.4% of overall Airbus orders 
for 200-300 seat LCA during the reference period). For these reasons, the Appellate Body 
disagreed that the Panel erred in its treatment of the evidence concerning the prices of Airbus LCA 
in the 200-300 seat LCA market, and in concluding that the effect of the aeronautics R&D subsidies was significant price suppression with  respect to the 200-300 seat LCA market.  
4.2.3.1.4  Conclusion 
In sum, having addressed the grounds of the United States' appeal concerning the 
Panel's analysis of the technology effect s of the aeronautics R&D subsidies, the 
Appellate Body upheld, albeit for different reasons, the Panel's overall conclusion, in 
paragraphs 7.1797, 7.1854(a), and 8.3(a)(i) of the Panel Report, that the aeronautics 
R&D subsidies, through their technology e ffects, caused serious prejudice to the 
interests of the European Communities wi thin the meaning of Article 5(c) and 
Article 6.3(b) and (c) of the SCM Agreem ent with respect to the 200-300 seat LCA 
market. 
4.2.3.2  Article 11 of the DSU In explaining, how it would conduct its assessment of serious prejudice as regards the effects of 
the USDOD measures, the Panel recalled that it had found that only funds provided pursuant to 
assistance instruments (and not funds provided pursuant to procurement contracts) could be characterized as specific subsidies. The Panel also referred to its finding that two of the 23 USDOD 
RDT&E programmes, namely, the ManTech and DUS&T programmes, "were predominantly funded 
through cooperative agreements or other assistance instruments". The word "predominantly", used in the Final Report, had not appeared in th e corresponding sentence of its Interim Report. 
The Panel felt that it could safely assume that the effects of the ManTech and DUS&T programmes 
pertained to the effects of assistance instruments. The Panel, however, found itself unable to take the same approach for the other 21 USDOD RDT&E programmes because there was insufficient evidence on the record as to whether those other RDT&E programmes funded "predominantly" 
assistance instruments. Accordingly, the Panel did not analyze the effects of those 
21 programmes.  WT/AB/18 
 
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  On appeal, the European Union contended that th e Panel failed to ensure due process on two 
grounds: (i) the Panel's "predominance" approach, set out for the first time in the Final Report, could not have been anticipated and, consequently, the European Communities did not have a "meaningful opportunity to respond to" it; and (ii) the Panel failed to seek from the United States 
the information necessary to apply its "predominance" test, that is, to determine the extent to 
which the 21 USDOD RDT&E programmes were funded pursuant to assistance instruments rather than procurement contracts. In response, the United States argued that the Panel's approach was 
not "unexpected" or "surprising", and that the Pa nel was not obliged, under Article 13 of the DSU, 
to "develop information on behalf of the complaining party". 
The Appellate Body first observed that the Panel's approach appeared to have emerged from 
repeated exchanges between the parties and the Pa nel over the course of the Panel proceedings. 
Moreover, even if the word "predominantly" was not used in the Interim Report, the Appellate 
Body was of the view that the essence of this test could be discerned from other parts of the 
Interim Report. Accordingly, the Appellate Body found that the mere inclusion of new language in 
the Final Report did not mean that the Panel had acted inconsistently with Article 11 of the DSU. 
The Appellate Body further pointed out that, in any event, a panel is not required to engage with the parties upon the findings and conclusions that it intends to adopt in resolving a dispute. Thus, 
the Appellate Body rejected the first argument rais ed by the European Union that the Panel failed 
to accord it a meaningful opportunity to comment on the Panel's "novel" approach. 
The Appellate Body then turned to the European Union's argument that the Panel had failed to 
seek information from the United States necessary to satisfy its "predominance" approach. The 
Appellate Body observed that the Panel had deci ded not to include the effects of the other 21 
USDOD programmes in its analysis of adverse effe cts because there was insufficient evidence of 
the effects of assistance instruments funded under those programmes on the record. However, 
given that the Panel had decided to conduct its analysis of the effects of the USDOD measures 
based on the type of contracts that were used, information as to the extent to which assistance instruments were used under each of the USDOD programmes was critical to enable it to do so. 
Since this information was within the exclusive possession of the United States, the Appellate Body 
considered that the Panel was required to assume an active role under Article 13 of the DSU in pursuing a train of inquiry that would enable it to apply its "predominance" approach. The Appellate Body, therefore, found that, by failing to exercise its authority to seek out relevant 
information to satisfy its predominance approach, the Panel acted inconsistently with its obligation 
under Article 11 of the DSU to make an objective assessment of the matter before it. In its appeal, the European Union further requested the Appellate  Body to reverse the Panel's finding that the 
USDOD programmes "(other than ManTech and DUS&T) do not cause the same effects as the 
other aeronautics R&D subsidies". The Appellate Body, however, did not view the Panel as having made any such finding. To the contrary, the Appellate Body read the Panel as having recognized 
that the other 21 USDOD RDT&E programmes may well also have had adverse effects to the 
extent that they were funded through assist ance instruments. The Appellate Body, hence, 
concluded that there was no finding to reverse as a consequence of the Panel's failure to comply with its duties under Article 11 of the DSU. 
4.2.3.3  Price effects 
The Panel also evaluated whether the subsidies to Boeing caused, through their effects on the 
pricing of Boeing LCA ("price effects"), adverse effe cts in the form of serious prejudice, within the 
meaning of Articles 5(c) and 6.3 of the SCM Agreement. The Panel noted that, although the 
European Communities had challenged all of the subsidies by reason of their price effects, it would analyze the price effects of the "tied tax subsidies" – namely, the FSC/ETI subsidies and the 
Washington State and the City of Everett B&O tax rate reductions – separately from the price 
effects of the other subsidies, namely, (i) the aeronautics R&D subsidies; (ii) the property and sales tax abatements provided to Boeing pursuant to IRBs issued by the City of Wichita, Kansas; (iii) the Washington State B&O tax credits for preproduction development, computer software and 
hardware, and property taxes; (iv) the Washington State sales and use tax exemptions for 
computer hardware, peripherals, and software; (v) the Washington State workforce development programme and Employment Resource Center; (vi) the reimbursement of a portion of Boeing's 
relocation expenses by the State of Illinois; (v ii) the 15-year EDGE tax credits provided by the 
State of Illinois; (viii) the abatement or refund of  a portion of Boeing's property taxes provided by 
the State of Illinois; and (ix) the payment to retire the lease of the previous tenant of Boeing's 
new headquarters building in Chicago.  WT/AB/18 
 
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  The Panel considered that the tied tax subsidies were subsidies directly tied to sales of individual 
LCA, and that they operated to lower taxes that Boeing paid and thereby increased Boeing's after-
tax profits. The Panel thus concluded that the tied tax subsidies have a far more direct and immediate relationship to aircraft prices and sales than other subsidies at issue in this dispute, 
such as the aeronautics R&D subsidies. In respect of the FSC/ETI subsidies in particular, the Panel 
considered that, by virtue of their very nature as  export subsidies, they are more likely to cause 
adverse trade effects. The Panel thus concluded that, because the FSC/ETI subsidies are 
contingent on Boeing making export sales, it was entitled to determine, absent reliable evidence to 
the contrary, that by their very nature, th ey will have trade di stortive effects.  
The Panel calculated that the FSC/ETI subsidies amounted to approximately $2.2 billion over the 
period from 1989 to 2006, and approximatel y $153 million, $142 million, and $140 million, 
respectively, in the years 2004, 2005, and 2006. The Panel also calculated that, through 2006, 
Boeing received $13.8 million and $2.2 million in B&O tax rate reductions from the State of Washington and the City of Everett, respectively . The Panel also considered evidence introduced 
by the parties concerning the magnitude of subsidization in relation to Boeing's revenues. The 
Panel noted the United States' contention that the FSC/ETI subsidies received by Boeing were too small relative to Boeing's order revenues to have  affected Boeing's pricing in a manner causing 
adverse effects. The Panel also noted the European Communities' argument that, when based on 
the more relevant measure of Boeing's delivery revenues, the ad valorem  rates of subsidization 
are significant. The Panel did not consider that either measure was particularly informative or illustrative of the capacity for the FSC/ETI subsidies to have affected Boeing's prices, and by 
extension, Airbus' prices and sales. The Panel, however, pointed to evidence that, in its view, 
clearly pointed to the significance of the FSC/ETI subsidies to Boeing's ability to compete on price against Airbus.  
On that basis, the Panel concluded that it had no doubt that the availability of the FSC/ETI 
subsidies, in combination with the B&O tax subsidies, enabled Boeing to lower its prices beyond the level that would otherwise have been economically justifiable, and that in some cases, this led 
to it securing sales that it would not otherwise have made, while in other cases, it led to Airbus 
being able to secure the sale only at a reduced price. The Panel added that, because the FSC/ETI programme had already been in operation prior to 2000, it was not possible for the Panel to ascertain the effects of the subsidies from direct  observation of market share and pricing trend 
data over the 2000-2006 period. The Panel further considered that factors other than the FSC/ETI 
subsidies that, in the United States' view, explai ned the prices and performance of Airbus LCA in 
the 2004-2006 period did not reverse or attenuate the pervasive and consistent pricing advantage 
that Boeing had in LCA campaigns due to the availa bility of the FSC/ETI subsidies. The Panel noted 
that it could decline to make a serious prejudice finding due to the difficulty of precisely calculating the degree to which Boeing's pricing of the 737NG and the 777 was affected by the tied tax 
subsidies. The Panel was, however, of the view th at such an approach would be inconsistent with 
its obligations to make an objective assessment of the matter as required by Article 11 of the DSU. Instead, the Panel considered it necessary and appropriate to deduce the effects of the FSC/ETI subsidies and the B&O tax subsidies on Airbus' sales and prices over the 2004-2006 period based 
on commonsense reasoning and the drawing of in ferences from its conclusions regarding the 
nature of the subsidies, the duration of the FSC/ ETI subsidies, and the nature of the competition 
between Boeing and Airbus.  
The Panel therefore considered it reasonable to in fer, based on the fact that the effects of the 
subsidies on Airbus' prices would be most acutely felt in particular sales campaigns of strategic importance to Boeing and/or Airbus, that the effects of the subsidies were therefore significant in 
the sense that Boeing's success in such sales campaigns necessarily constitutes a significant lost 
sale to Airbus, and that such sales secured by Airbus in the face of Boeing's reduced prices necessarily constitute sales secured at significantly suppressed prices. The Panel also found it inescapable to arrive at the conclusion that the effects of the subsidies on Airbus' prices and sales 
constitute significant lost sales and significant price suppression, within the meaning of 
Article 6.3(c) of the SCM Agreement, as well as displacement and impedance of exports from third-country markets, within the meaning of Ar ticle 6.3(b). The Panel thus concluded that the 
effects of the FSC/ETI subsidies and the Washington State B&O tax rate reduction in the 
100-200 seat LCA market, and the effects of the FS C/ETI subsidies and the Washington State and 
City of Everett B&O tax rate reductions in the 300-400 seat LCA market, were:  (i) to significantly 
suppress Airbus' prices in sales in which it competed against Boeing;  (ii) to cause Airbus to lose 
significant sales;  and (iii) to displace and impede  EC exports in third-country markets.  The Panel WT/AB/18 
 
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  determined that the City of Everett B&O tax rate reduction applies to the 777 and 787 families, but 
not to the 737NG family. The European Communities  did not claim that the FSC/ETI subsidies had 
adverse effects in the 200 300 seat LCA market, and the Panel conducted its analysis on the basis that these subsidies had no effects in that product market. For the 200-300 seat LCA market, the 
Panel therefore considered the price effects of on ly the Washington State and the City of Everett 
B&O tax rate reductions, and found that there was insufficient evidence to conclude that these subsidies were of a magnitude that would enable them, on their own, to have such an effect on 
Boeing's prices of the 787 so as to cause Airbus to suffer serious prejudice. The European Union's 
appeal of this finding is addressed in the next section on cumulation. 
The United States requested that the Appellate Body  reverse the Panel's find ings of adverse effects 
on the grounds that, in reaching them, the Panel erred in its interpretation and application of 
Articles 5(c) and 6.3(b) and (c) of the SCM Agr eement. According to the United States, the Panel 
failed to undertake a proper analysis of these subsidies, and therefore did not establish a genuine and substantial relationship of cause and effect between the subsidies and the adverse effects 
alleged by the European Communities. The United States also argued that the Panel committed 
specific errors in reaching its findings of significant price suppression, significant lost sales, and displacement and impedance. The European Union re sponded that each of these allegations by the 
United States is baseless, and that the United States was improperly using its appeal to repeat 
arguments that it had advanced unsuccessfully before the Panel. The European Union also maintained that the United States' appeal presented an incomplete account of the Panel's analysis and findings, and that, contrary to what the United  States claimed, the Panel reached findings that 
complied with the relevant requirements of Articles  5(c) and 6.3(b) and (c) of the SCM Agreement. 
The Appellate Body addressed the United States' appeal by first considering general aspects of the 
Panel's causation analysis relating to the United States' allegation that the Panel relied on an 
impermissible presumption that subsidies prohibited under Part II of the SCM Agreement cause 
serious prejudice for purposes of Part III, as well as on the United States' arguments relating to 
the Panel's treatment of the magnitude of the tied tax subsidies, its counterfactual analysis, and its 
consideration of the other factors advanced by the United States to explain the alleged market 
effects. The Appellate Body then addressed the Un ited States' contention that the Panel committed 
specific errors in reaching its findings of significant price suppression, significant lost sales, and displacement and impedance. Because various elements of the United States' claim related to 
different aspects of the Panel's causation analysis, the Appellate Body explained that it would 
analyze each of these elements independently before providing an overall assessment of the 
Panel's causation analysis. 
The Appellate Body first examined the United States ' contention that the Panel erred in relying on 
a presumption that subsidies found to be prohibited under Part II of the SCM Agreement cause adverse effects within the meaning of Part III. The Appellate Body did not consider that the Panel's 
reasoning, considered in its totality, showed that the Panel had applied a presumption of the sort 
claimed by the United States. The Appellate Body did not understand the Panel to have expressed the view that the legal status of subsidies under Article 3.1(a) of the SCM Agreement is 
determinative of the characterization of the effects of such subsidies for purposes of Article 6.3 of 
that Agreement, but rather that the FSC/ETI subs idies were, by virtue of their very nature as 
export subsidies, more likely  to cause adverse trade effects. The Appellate Body found this general 
proposition to be in itself unobjectionable. The Appellate Body also did not understand the Panel's 
reference to "trade distortive effects" to equate  the existence of such effects to establishing 
"serious prejudice" or "adverse effects" within  the meaning of Articles 5(c) and 6.3 of the 
SCM Agreement. Rather, the Appellate Body said , the Panel seemed to have been elaborating 
upon its view that the nature of the FSC/ETI su bsidies increased the likelihood that they will 
produce adverse effects, and that it would, for that reason, accord this factor considerable weight in its analysis of such effects and of whether th ey demonstrated serious prejudice. Finally, the 
Appellate Body noted that the Panel had found, and both parties had accepted, that the nature of 
a challenged subsidy is a relevant factor to take into consideration in determining whether it has 
caused adverse effects. The Appellate Body agreed that an analysis of the export-contingent nature of a subsidy may reveal elements that are highly pertinent to an assessment of its trade 
effects, even if a finding of export-contingency would not, by itself, establish the existence of 
adverse effects phenomena such as those at issue in this appeal. 
The Appellate Body then considered the United St ates' argument that the Panel failed to take 
proper account of the magnitude of the subsidies,  and, in particular, the fact that the FSC/ETI WT/AB/18 
 
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  benefits amounted to less than 1% of the value of Boeing's sales. The Appellate Body stated that 
both the absolute and the relative magnitudes of subsidies are likely to be relevant to a panel's analysis of the effects of subsidies on prices, and that both considerations may shed light on the impact that those subsidies have on price. By scrutinizing the magnitude in the light of the 
particular subsidies, products, and characteristics of the market within which those products 
compete, the Appellate Body added, a panel can gain an understanding of the effects that the subsidies have on prices, and of the relevance of  the subsidies' magnitude to such effects. The 
Appellate Body observed that the reasoning of the Panel in this dispute with respect to the 
magnitude of the subsidies could have been more clearly elaborated. It may well be, the Appellate Body ventured, that the Panel relied primarily on its findings regarding the absolute  amounts of 
the tied tax subsidies. In this case, however, the parties also presented arguments and evidence 
regarding the relative significance of the subsidies and, in particular, on the issue of whether those 
subsidies were of a size that, when considered in relation to product values or prices, could produce market effects amounting to serious prej udice. The Appellate Body did not exclude that 
subsidies of a relatively small magnitude in relation to product values or prices could have such 
effects, or that the Panel could have reasoned to that conclusion in the circumstances of this case. Yet, given that a comparison of the magnitude of the FSC/ETI subsidies in relation to LCA values 
was a relevant matter clearly put before the Panel, the Appellate Body considered that the Panel 
should have offered more of an explanation as to why it rejected the relevance of such data for its analysis. The Appellate Body noted, however, that the Panel did provide other reasons, arguably relating to the magnitude of these subsidies, and had identified elements other than magnitude, in 
support of its finding regarding the significance of the FSC/ETI subsidies to Boeing's ability to 
compete on price against Airbus.  
The Appellate Body then turned to consider the United States' argument that the Panel did not 
apply a proper counterfactual analysis, because it failed to establish that, absent the tied tax 
subsidies, Boeing's LCA prices would have been higher. The Appellate Body recalled that a core 
element of the European Communities' causation th eory was that, although the tied tax subsidies 
gave Boeing the potential to use those benefits to lower LCA prices by up to the amount of the 
s u b s i d y ,  B o e i n g  w a s  m o r e  l i k e l y  t o  d o  s o  i n  w h a t  t h e  E u r o p e a n  C o m m u n i t i e s  r e f e r r e d  t o  a s  competitive sales campaigns. Thus, although the tied tax subsidies have the potential to produce trade-distortive effects, this did not establish under what circumstances, or to what extent, they 
would do so in particular sales campaigns. On th at basis the Appellate Body understood that, when 
the Panel concluded that the tied tax subsidies "enabled Boeing to lower its prices beyond the level that would otherwise have been economically justifiable", the Panel considered that these 
subsidies only established the possibility or likelihood that Boeing would do so in particular sales 
campaigns. The Appellate Body observed that th e Panel did not discuss LCA prices for Boeing or 
Airbus, or explain what would have constituted "economically justifiable" behaviour for Boeing in 
the absence of subsidies, and compare that with Boeing's actual pricing behaviour. The 
Appellate Body therefore considered that, becaus e the Panel did not provide reasoning or discuss 
under what circumstances the tied tax subsidies led Boeing to lower its prices beyond the level that would otherwise have been economically justifiable in LCA sales campaigns, it did not provide 
a reasoned basis for its generalized finding that the tied tax subsidies led Boeing to lower its prices 
in a manner causing Airbus to lose sales or to secure sales only at reduced prices. 
The Appellate Body also evaluated the United States ' argument that the Panel failed to engage in a 
meaningful analysis of the effects of other factors on prices and sales of Boeing and Airbus LCA. 
The Appellate Body noted the Panel's reasoning that, because the FSC/ETI programme was in effect before the reference period, this made it impossible for it to determine the effects of the 
subsidies through direct observation of market sh are and price trend data. The Appellate Body did 
not agree with the suggestion of the Panel that co nsiderations of market share and price trends 
during a period of sustained subsidization, and of "other factors" potentially contributing to such shares or trends, were of no assistance or relevance in analyzing the effects of the subsidies. Even 
if the FSC/ETI subsidies were provided over a long period, the Appellate Body explained, the 
question as to whether there was a discernible correlation between subsidy levels and price trends was still a relevant one. Moreover, the lack of such a correlation would have called for some 
explanation as to why this did not detract from or preclude the Panel from reaching a finding of a 
genuine and substantial causal relationship in this dispute. The Panel, however, did not discuss these considerations in its analysis. The Appellate Body further noted that the Panel did not, in its 
reasoning, mention any specific other factors raised by the United States, or engage in any 
discussion of whether or to what extent such factors may have had an effect on Boeing's pricing of its LCA or on Airbus' prices and sales. In th e Appellate Body's view, the Panel should have WT/AB/18 
 
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  addressed these specific other factors raised by the United States and assessed whether they were 
capable of contributing to effects on Airbus' sales and prices and, if so, what their relative causal significance was in relation to that of the tied tax subsidies. The Appellate Body further noted that 
the Panel's failure to address the relative significance of the other causal factors to Boeing's prices 
contrasted with the Panel's consideration of such factors in respect of the effects of the aeronautics 
R&D subsidies in the 200-300 seat LCA market.  
The Appellate Body then evaluated the United States ' appeal as it related to the Panel's specific 
findings of significant price suppression, significant lost sales, and displacement and impedance 
within the meaning of Article 6.3(b) and (c) of the SCM Agreement. With respect to the Panel's 
finding of significant price suppression, the United States argued that the Panel undertook no analysis of prices in the 100-200 seat and 300-400 seat LCA markets. Although the Appellate Body 
acknowledged that Boeing's receipt of FSC/ETI benefits over a long period might have made the 
Panel's task more difficult because there was no prior, subsidy-free period against which to compare, this did not mean that there was nothing to be gained from examining such data on the 
record in a price suppression analysis. As the Appe llate Body explained, the fact that prices of a 
subsidized product were lower during a period of lower subsidization might have required further consideration or explanation in order to demonstrate a genuine and substantial relationship 
between the subsidies and any alleged price effects.  In this dispute, the Panel made no reference 
to, and its reasoning contained no analysis of, any pricing information or market share data in the 100-200 seat and 300 400 seat LCA markets on the record. The Appellate Body further noted the 
contrast between the Panel's approach in its analys is of price effects, and the fact that the Panel 
took pricing information into account in its analysis of the technology effects of the aeronautics 
R&D subsidies in the 200 300 seat LCA market. 
With respect to the Panel's finding of significant lost sales, the United States argued that the Panel 
failed to meet the requirements of Article 6.3(c)  because it did not identify the sales in the 100 
200 seat and 300-400 seat LCA markets that it found to constitute significant lost sales. The Appellate Body considered that the scope of the Panel's lost sales finding was unclear, in particular 
because the Panel did not clearly indicate whethe r its finding related to the individual sales 
campaign evidence identified by the European Communities, or to some other conception of "competitive" or "strategic" sales campaigns. The Appellate Body rejected the European Communities' contention that the Panel made a global finding of significant lost sales, but added 
that, irrespective of whether that finding was made on a generalized basis, or on the basis of 
individual sales campaigns, the Panel reached its fi ndings without referring to, or discussing in its 
reasoning, any of the evidence relating to lost sales advanced by the European Communities in 
support of its lost sales claim. The Appellate Bo dy explained that, even if a claim of serious 
prejudice relies on specific evidence to support a generalized finding of lost sales, this does not mean that a panel is free to conduct its reasoning without any reference to, or analysis of, that 
evidence. Indeed, where certain evidence forms the foundation for a claim, it is all the more 
necessary for a panel to contend with that evidence  and to explain why such evidence of a subset 
of sales supports a broader finding of lost sales.  Given the structure of the European Communities' 
claim, the Appellate Body considered that the manner in which the sales campaign evidence 
advanced by the European Communities "illustr ated" under what circumstances, and to what 
extent, lost sales occurred was a matter that sh ould have been addressed by the Panel. The 
Appellate Body further noted the contrast between th e Panel's approach in its analysis of the price 
effects, with its explicit discussion of the reasons why particular sales campaigns amounted to 
significant lost sales arising from the technology effects of the aeronautics R&D subsidies in the 200-300 seat LCA market.  
Regarding the Panel's finding of displacement an d impedance, the United States contended that 
the Panel failed to meet the requirements of Article 6.3(b) because the Panel did not determine whether any of the countries in which the European Communities alleged displacement or impedance occurred constituted a "market", and did not identify the third countries in which 
displacement or impedance occurred. The Appellate  Body noted that the entirety of the Panel's 
displacement and impedance analysis was located in one paragraph of the Panel Report, and disagreed with the Panel's failure to distingu ish in its analysis between the phenomena of 
displacement and impedance, and the implication of the Panel's reasoning that the phenomena of 
displacement and impedance necessarily follow from a finding of significant lost sales. In addition, the Appellate Body recalled that the European Communities had identified specific sales campaigns 
that it alleged resulted in displacement and impedance in the 100-200 seat and 300-400 seat LCA 
markets. The Appellate Body considered that, given the well-defined geographic focus of WT/AB/18 
 
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  Article 6.3(b), a panel's analysis of displacement and impedance must engage with the evidence of 
the particular third country market or markets in which such market phenomena are alleged. Accordingly, the Appellate Body did not consider that it was appropriate for the Panel to conduct an analysis of displacement and impedance without any reference to or discussion of the specific 
countries or sales campaign evidence advanced by the European Communities in support of its 
claim. The Appellate Body again highlighted the contrast between the Panel's approach in its analysis of price effects, and its examination of specific countries and sales campaign evidence in 
its analysis of the technology effects of the aeronautics R&D subsidies in the 200-300 seat LCA 
market.  
The Appellate Body concluded that, taken together, the deficiencies it identified in the Panel's 
reasoning amounted to legal error in the Panel's analysis of serious prejudice. The Appellate 
Body therefore reversed the Panel's find ings that significant price suppression, 
significant lost sales, and displacement and impedance, under Article 6.3(b) and (c) of 
the SCM Agreement, were the effects of: (i ) the FSC/ETI subsidies and the Washington 
State B&O tax rate reduction in the 100-200  seat LCA market; and (ii) the FSC/ETI 
subsidies and the Washington State and the Ci ty of Everett B&O tax rate reductions in 
the 300-400 seat LCA market.  
The Appellate Body proceeded to consider whether it could complete the analysis and rule on the 
European Union's claim that the tied tax subsidies caused serious prejudice within the meaning of Articles 5(c) and 6.3 of the SCM Agreement. The Appellate Body recalled findings and uncontested facts on the Panel record as they related to the nature of the tied tax subsidies, their magnitude, 
the conditions of competition in the LCA industry, and the particular sales campaign evidence 
supplied by the European Communities. On the basis of these elements, the Appellate Body 
considered that, where it can be established that Boeing was under particular pressure to reduce 
its prices in order to secure LCA sales in particular sales campaigns, and there were no other non-
price factors that explained Boeing's success in obtaining the sale or suppressing Airbus' pricing, it could conclude that the subsidies contributed in a genuine and substantial way to the lowering of 
Boeing's prices, and that the effect of such price reductions was that Boeing won the sale from 
Airbus, or that Airbus was forced to suppress its own price in order to secure the sale. The Appellate Body therefore considered that, although the factual findings and uncontested facts drawn from the Panel record relating to the na ture and magnitude of the subsidies, and the 
conditions of competition in the relevant markets, did not themselves suffice to establish on a 
generalized basis the requisite causal connection between the tied tax subsidies and the effects on Airbus' LCA sales and prices, serious prejudice could be established where the pricing dynamic set 
out above was found to have occurred in particular LCA sales campaigns. 
The Appellate Body examined the sales campaign evidence of the European Communities, and the 
subsequent BCI and HSBI submissions of the United States and the European Communities 
relating to these various sales campaigns. The Appellate Body considered that, where the United 
States advanced other factors in respect of particular sales campaigns that were capable of explaining the effects on Airbus' LCA sales and prices, it must treat as disputed whether or not the other factor or factors sufficed to attenuate a genuine and substantial relationship between the 
tied tax subsidies and those effects. The Appellate Body considered that the United States 
identified potentially valid other factors for all but two of the sales campaigns. With respect to the sales campaigns involving the purchase of 737NG LCA by Japan Airlines ("JAL") and Singapore 
Aircraft Leasing Enterprise ("SALE"), the Appellate  Body noted BCI and HSBI statements on the 
Panel record, uncontested by the parties, demonstr ating the particularly price-sensitive nature of 
these campaigns, and the fact that both Boeing and Airbus had similar strategic incentives leading 
them to engage in intense competition in terms of price in order to win the sales. Moreover, the 
Appellate Body noted, the United States did not specifically identify other factors that could have demonstrated that Boeing had an advantage in these campaigns that would have led it to win the sales for reasons other than price. In these ci rcumstances, the Appellate Body concluded that 
Boeing was under particular pressure to reduce its prices in order to secure the sales in these two 
campaigns, and that there was therefore a sufficien t basis to complete the analysis and conclude 
that there was a genuine and substantial causal relationship between the FSC/ETI subsidies and 
the Washington State B&O tax rate reduction, through their effects on Boeing's prices, and the 
significant lost sales experienced by Airbus in these two sales campaigns. Accordingly, the 
Appellate Body found that the FSC/ETI subsid ies and the Washington State B&O tax rate 
reduction caused serious prejudice in the 100 200 seat LCA market within the meaning 
of Articles 5(c) and 6.3(c) of the SCM Agreement.  WT/AB/18 
 
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  4.2.3.4  Collective assessment of the subsidies and their effects 
At the outset, the Appellate Body considered it  useful to outline the key elements of the 
approaches taken in US – Upland Cotton  and EC and certain member States – Large Civil Aircraft . 
Based on its review of these cases, it noted that, in the past, two distinct means of undertaking a 
collective assessment of the effects of multiple subsidies have been used, namely: (i) an ex ante  
decision taken by a panel to undertake a single analysis of the effects of multiple subsidies whose structure, design, and operation are similar and thereby to assess in an integrated causation 
analysis the collective effects of such subsidy measures; and (ii) an examination undertaken by a 
panel, after it has found that at least one subsidy is a genuine and substantial cause of adverse effects, as to whether the effects of other subs idies complement and supplement – are a genuine 
cause of – those same adverse effects. The former type of approach was employed by the panel in 
US – Upland Cotton , and the latter approach was employed  by the panel and endorsed by the 
Appellate Body in EC and certain member States – Large Civil Aircraft . For the sake of 
convenience, the Appellate Body referred to the firs t type of approach as a decision to "aggregate" 
the subsidies, or "aggregation", an d to the second type of approach as a decision to "cumulate" 
the effects of the subsidies, or "cumulation".  
The Panel in this case, in considering how to conduct its analysis of the effects of the various 
subsidy measures, explained that it would use the approach set out by the panel in US – Upland 
Cotton. This approach led the Panel to undertake an aggregated analysis within each of the following three groups of subsidies: (i) the tied tax subsidies; (ii) the aeronautics R&D subsidies; and (iii) the remaining subsidies. It also led the Panel not to undertake an aggregated analysis of 
the tied tax subsidies together with the aeronautics R&D subsidies, or of the tied tax subsidies 
together with the remaining subsidies. The Panel gave the following reason for deciding not to conduct a collective assessment of the price effects of the B&O tax rate reductions and the 
technology effects of the aeronautics R&D subsidies within the 200-300 seat LCA market: "the two 
groups of subsidies operate through entirely distinct causal mechanisms". The Panel did not address explicitly the question of whether it woul d have been appropriate to undertake a collective 
assessment of the effects of the remaining subsidies together with the effects of the tied tax 
subsidies. Nonetheless, the Panel examined the ef fects of the B&O tax rate reductions within the 
200-300 seat LCA market, alone, and the effe cts of the remaining subsidies, alone. 
The European Union first contended that the Panel erred in declining to assess collectively the 
effects of the aeronautics R&D subsidies and the effects of the B&O tax rate reductions. It 
challenged, in particular, the "distinct causal mechanism" test relied upon by the Panel in deciding that it was not appropriate to undertake a collective assessment of the effects of these two groups 
of subsidies within the 200-300 seat LCA market . The European Union sought to demonstrate, 
through its interpretation of the text of Articles  5(c) and 6.3 of the SCM Agreement, read in the 
light of their context and the object and purpose of  that Agreement, that the Panel's test has no 
basis in the SCM Agreement, is overly restrictive, and would enable Members to escape subsidy 
disciplines by providing a series of small subsidies that each affects the recipient slightly differently. The European Union further contended that, having found that the aeronautics R&D subsidies allowed Boeing to suppress Airbus' pricing in the 200-300 seat LCA market, and having 
also found that the B&O tax rate reductions had the capacity to suppress Airbus' pricing (in the 
100-200 seat and 300-400 seat LCA markets), the Panel failed to take the next step and combine the effects of the B&O tax rate reductions with those of the aeronautics R&D subsidies within the 
200-300 seat LCA market.  
The United States, in turn, submitted that the Panel's decision was permissible under Articles 5 
and 6.3 of the SCM Agreement, based on the European Communities' own arguments about the 
differing nature of these two groups of subsidies and their different effect s on Boeing's commercial 
behaviour, and consistent with the Appellate Body's  affirmation that panels enjoy "a certain degree 
of discretion in selecting an appropriate methodology" for determining adverse effects. The United States added that the Panel's approach a ccorded with the views of the Appellate Body in EC 
and certain member States – Large Civil Aircraft , i.e. that even when using a cumulation 
methodology, panels should focus on discerning whether the various subsidies operate through the same causal mechanism to cause adverse effects.  
The Appellate Body noted that, according to the Panel, the aeronautics R&D subsidies were a 
genuine and substantial cause of a threat of displacement and impedance, significant lost sales, and significant price suppression in the 200-300 seat  LCA market, and recalled that it had upheld WT/AB/18 
 
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  much of that finding on appeal. The Appellate Body also understood the Panel to have found that 
the B&O tax rate reductions had a genuine causal connection with Boeing's prices and, therefore, with Airbus' prices. The Appellate Body thus considered that the next step for the Panel would have been to consider whether the effects of the B&O tax rate reductions complemented or 
supplemented the effects of the aeronautics R& D subsidies within the 200-300 seat LCA market. 
The Appellate Body did not see any a priori  reason why cumulation would be precluded. Nor did it 
consider that the mere fact that the two groups of subsidies operated through distinct causal 
mechanisms could, alone, have resolved the questions of whether each group had effects relevant 
to the serious prejudice alleged and whether those effects were capable of being combined in the Panel's analysis of serious prejudice. For purposes  of cumulating, the Appellate Body recalled that 
the requisite genuine causal connection can be established even when the other subsidies do not 
operate along the same causal pathway as the subsidy found to be a genuine and substantial 
cause of Article 6.3 market phenomena, provided that those subsidies meaningfully contribute to 
the same market phenomena caused by the first subsidy. The Appellate Body therefore found 
that the Panel erred in failing to consider whether the price effects of the B&O tax rate 
reductions complement and supplement the te chnology effects of the aeronautics R&D 
subsidies in causing significant lost sales an d significant price suppression, and a threat 
of displacement and impedance,  in the 200-300 seat LCA market.  The European Union did 
not request the Appellate Body to complete the analysis on this issue. 
The European Union contended, in addition, that the Panel erred in declining to assess collectively 
the effects of the tied tax subsidies and the effect s of the remaining subsidies. In its view, since, 
like the tied tax subsidies, the remaining subsidies had a nexus with the subsidized LCA and with 
Boeing's pricing, either the Panel should have conducted an aggregated  assessment of their 
effects, or, after determining that the tied tax subsidies caused serious prejudice, it should have 
cumulated  the effects of these two groups of subsid ies. The European Union stressed, in this 
regard, that the Appellate Body recognized, in US – Upland Cotton , that untied (non-price-
contingent) subsidies can have price effects. The United States, on the contrary, considered that 
the Panel did not err in declining to undertake a collective assessment of the remaining subsidies 
and the tied subsidies in its analysis of adverse effects. In its view, this ground of the European Union's appeal relied on an incorrect understanding of the panel reports in US – Upland 
Cotton  and EC and certain member States – Large Civil Aircraft , and a flawed interpretation of 
Articles 5 and 6.3 of the SCM Agreement as requ iring the collective assessment of "any and all 
subsidies benefiting the subsidized product in the market at issue". The United States emphasized 
that no sufficient nexus between the remaining subsidies and the subsidized products was 
established. 
The Appellate Body noted that the Panel did not explicitly address the question of whether it 
should have collectively assessed these two groups  of subsidies and their effects. Although it 
viewed the absence of any reasoning by the Panel as problematic, the Appellate Body considered 
that there was sufficient support on the record for the view that the Panel did not act outside the scope of its discretion by not conducting an aggregated  analysis of these two groups of subsidies. 
The Appellate Body found more persuasive the Eu ropean Union's alternative argument – that the 
Panel erred in failing to make a cumulative  assessment of whether the remaining subsidies 
affected Boeing's prices in a way similar to the tied tax subsidies, such that they complemented and supplemented the effects of the tied tax subs idies. According to the Appellate Body, the Panel 
should not have limited its analysis to the question of whether the remaining subsidies constitute a 
genuine and substantial cause of serious prejudice on their own. Instead, the Panel should have 
inquired as to whether these subsidies had a genuine causal relationship with the effects that it 
had found the tied tax subsidies to have on Boeing's LCA pricing, such that the remaining subsidies 
could be said to complement and supplement those effects and, thereby, the serious prejudice caused to the interests of the European Communities. For these reasons, the Appellate Body 
found that the Panel erred in concluding that the remaining subsidies had not been 
s h o w n  t o  h a v e  a f f e c t e d  B o e i n g ' s  p r i c e s  i n  a manner giving rise to serious prejudice, 
without having considered whether those su bsidies had a genuine relationship to, and 
effects on, such prices and accord ingly, it reversed that finding.  
The European Union further requested the Appellate Body to complete the analysis and find that, 
together with the tied tax subsidies, the remain ing subsidies caused adverse effects. In this 
respect, the European Union requeste d the Appellate Body to conduct an aggregated  assessment 
of these two groups of subsidies and find that th ey both provided Boeing with pricing advantages 
and caused the same market effects. Alternativel y, it requested the Appellate Body to cumulate WT/AB/18 
 
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  the effects of these two groups of subsidies or, in other words, to find that the effects of the 
remaining subsidies complemented and supplemented the price effects that the Panel found to have been caused by the tied tax subsidies. In response, the United States emphasized the differences between the facts of this dispute and those in EC and certain member States – Large 
Civil Aircraft . It argued that the European Union did not identify relevant factual findings or 
undisputed facts that would enable the Appellate Body to complete the analysis, and asserted that there were no such findings or undisputed facts on the record.  
The Appellate Body recalled that it had found that the Panel did not err in refusing to undertake an 
aggregated analysis of these two groups of subsidies and determined that it would be inappropriate to itself consider the same question again. It thus focused on the question of whether the effects of the remaining subsidies complemented and supplemented the effects of the 
tied tax subsidies. It recalled its previous determination that Boeing was under particular pressure 
to reduce its prices in order to secure 737NG sales in the 2005 JAL and SALE campaigns, and that Boeing used the FSC/ETI subsidies and the State of Washington B&O tax rate reduction to do so. 
The Appellate Body examined whether a genuine link could be established between the remaining 
subsidies and the price effects of those subsidies.  
The Appellate Body recalled that the remaining subsidies comprised eight measures provided in 
several different jurisdictions, at both the local and state level, and pursuant to several different 
subsidy programmes. With respect to the Washington State workforce development programme, the Employment Resource Center, and the Washington State B&O tax credit for property taxes, the Appellate Body noted that the evidence on th e record showed that these measures benefited 
only the 787 in the 200 300 seat LCA market, and not the 737NG in the 100-200 seat LCA market. 
Moreover, the Appellate Body was not persuaded that the four subsidies granted in connection with Boeing's relocation of its corporate headquar ters to the State of Illinois had been shown to 
meaningfully contribute to any lowering of Boeing's prices for its 737NG, thus the Appellate Body 
could not cumulate the effects of these subsidies with those of the tied tax subsidies. The Appellate Body further determined that neither th e Panel's findings nor the uncontested facts on 
the record demonstrated a genuine link between Boeing's 737NG and the B&O tax credits for 
certain preproduction development expenditures and for computer software and hardware, or between the 737NG and the sales and use tax exemptions for computer hardware, software, and peripherals.  
However, with respect to the City of Wichita IRBs, which the Panel had estimated to amount to 
$475.8 million, the Appellate Body noted that these were specifically aimed at, and were used for 
the purpose of, enhancing Boeing's manufacturing facilities in Wichita, which produced parts for 
the 737NG. The Appellate Body accepted the general proposition that subsidies that are not 
directly contingent upon production or sale can nevertheless affect pricing decisions in some circumstances. Within the product market at i ssue and in the circumstances of the JAL and SALE 
campaigns, the Appellate Body was further satisfied that Boeing would have used all available 
means to reduce its prices to the extent necessary to secure those sales, including subsidy benefits directly linked to production of the 73 7NG. In the Appellate Body's view, moreover, the 
IRBs could not be considered trivial in terms of their overall magnitude or duration, and they had a 
genuine link to Boeing's production of the 737NG. For these reasons, it considered that Boeing's 
IRB benefits enhanced the pricing flexibility that Bo eing enjoyed by reason of the tied tax subsidies 
in the circumstances of the JAL and SALE campaigns. Accordingly, the Appellate Body found 
that the effects of the City of Wichita IR Bs complemented and supplemented the price 
effects of the FSC/ETI subsidies and the Stat e of Washington B&O tax rate reduction, 
thereby causing serious prejudice, in the fo rm of significant lost sales, within the 
meaning of Articles 5(c) and 6.3(c) of the SCM Agreement, in the 100-200 seat LCA 
market.  
4.3  Appellate Body Report, US – Measures Affecting the Production and Sale of Clove 
Cigarettes , WT/DS406/AB/R 
This dispute concerned a tobacco control measure adopted by the United States that prohibits 
cigarettes with characterizing flavours, other than tobacco or menthol. The measure at issue – Section 907(a)(1)(A) of the Federal Food, Drug, and Cosmetic Act ("FFDCA") – became law in the 
United States on 22 June 2009 and entered into force three months thereafter. Non-binding 
guidance from the Food and Drug Administration ("FDA") noted that "flavoured products make it easier for new smokers to start smoking by mask ing the unpleasant flavour of tobacco", and thus WT/AB/18 
 
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  "[r]emoving these flavoured products from the market is important because it removes an avenue 
that young people can use to begin regular tobacco use." 
4.3.1  Article 2.1 of the TBT Agre ement and Article 11 of the DSU 
4.3.1.1  "Like products" under Ar ticle 2.1 of the TBT Agreement 
The Appellate Body addressed the Panel's interpretati on of the term "like products" in Article 2.1 of 
the TBT Agreement. Moreover, the Appellate Body addressed the United States' claims that the 
Panel erred in its interpretation and application of the "likeness" criteria of end-use and consumer 
tastes and habits, and that the Panel acted inconsistently with Article 11 of the DSU in its 
assessment of consumer tastes and habits. The Unit ed States did not appeal the Panel's findings 
concerning the other "likeness" criteria, namely, the products' physical characteristics and tariff classification. 
With regard to the Panel's interpretative appr oach to the concept of "like products" under 
Article 2.1 of the TBT Agreement, the Appellate Bo dy disagreed with the Panel that the declared 
legitimate public health objective of Section 907(a )(1)(A), that is, the reduction of youth smoking, 
must "permeate and inform" a "likeness" analysis under Article 2.1 of the TBT Agreement. The 
Appellate Body considered, instead, that the context provided by Article 2.1 itself, by other provisions of the TBT Agreement, by the TBT Ag reement as a whole, and by Article III:4 of the 
GATT 1994, as well as the object and purpose of the TBT Agreement, suppor t an interpretation of 
the concept of "likeness" in Article 2.1 that is based on the competitive relationship between and 
among the products. In this connection, the Appellate Body explained that the concept of "like products" in Article 2.1 of the TBT Agreement serves to define the scope of products that must be 
compared to establish whether less favourable trea tment is being accorded to imported products. 
If products that are in a sufficiently strong competitive relationship to be considered "like" are excluded from the group of like products on the basis of a measure's regulatory purpose(s), such 
products would not be compared in order to asce rtain whether less favourable treatment has been 
accorded to imported products. In the Appellate Body's view, this would inevitably distort the less favourable treatment comparison, as it would refer to a "marketplace" that would include some 
"like products" but not others. Although the Appellate Body rejected the Panel's approach to the 
regulatory purpose of the measure in its "likeness" analysis, the Appellate Body clarified that the regulatory concerns that underlie a measure are relevant to the determination of "likeness" to the extent that they have an impact on the competitive relationship between and among products. 
With regard to the United States' claim that the Panel erred in its interpretation and application of 
the "likeness" criterion of end-use, the Appellate Body disagreed with the Panel's conclusion that 
the end-use of clove and menthol cigarettes is si mply "to be smoked". In the Appellate Body's 
view, the Panel was not correct in characterizing the more specific end-uses put forward by the 
United States, that is, "satisfying an addiction to nicotine" and "creating a pleasurable experience associated with the taste of the cigarette and the aroma of the smoke" as consumer tastes and 
habits and not end-uses. To the extent that th ey describe possible functions of the products, 
rather than the consumers' appreciation of these fu nctions, they represent, in fact, more specific 
end-uses of the products at issue, rather than  consumers' tastes and habits. Nevertheless, the 
Appellate Body considered that, based on the Pa nel's findings, both clove and menthol cigarettes 
are capable of performing the more specific end- uses put forward by the United States. Thus, the 
Appellate Body concluded that the more specific end-uses of clove and menthol cigarettes also support the Panel's overall finding that clove cigarettes and menthol cigarettes are "like products" 
within the meaning of Article 2.1 of the TBT Agreement. 
With regard to the United States' claim that the Panel erred in its interpretation and application of 
the "likeness" criterion of consumers' tastes and habits, the Appellate Body considered that, 
because an interpretation of the concept of "liken ess" under Article 2.1 of the TBT Agreement must 
focus on the competitive relationship between and among the products, rather than on the 
regulatory purpose(s) of a measure, the Panel was wrong in confining its analysis of consumer tastes and habits to those consumers (young and potential young smokers) that are the concern of 
the objective of the measure at issue (to reduce youth smoking). Nevertheless, the Appellate Body 
considered that the degree of competition and substitutability that the Panel found for young and potential young smokers is sufficiently high to suppo rt a finding of likeness under Article 2.1 of the 
TBT Agreement. Thus, while the Panel should not have limited its analysis of consumers' tastes 
and habits to young and potential young smokers to  the exclusion of current adult smokers, this WT/AB/18 
 
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  did not undermine the Panel's finding regarding consumers' tastes and habits in respect of the 
products at issue, or its ultimate finding that clove cigarettes and menthol cigarettes are "like products" within the meaning of Article 2.1 of the TBT Agreement. 
Turning to the claim by the United States that the Panel acted inconsistently with Article 11 of the 
DSU by disregarding survey evidence on how cons umers actually use and perceive the products at 
issue in the relevant market, the Appellate Body was not persuaded that the reasons advanced by the Panel for not relying on the surveys justified the cursory treatment given by the Panel to these 
surveys. Even if these surveys were not directly comparable or based on different methodological 
approaches, the Panel was required to consider them and extract any relevant information that they contained. Nevertheless, the Appellate Body considered that the survey evidence that the 
Panel did not engage with did not have material consequences for the Panel's finding that clove 
and menthol cigarettes are substitutable in certain segments of the market, and did not, therefore, 
undermine the Panel's finding that clove and menthol cigarettes are "like products" within the meaning of Article 2.1 of the TBT Agreement. A ccordingly, the Appellate Body found that the 
Panel's treatment of the survey evidence did not amount to a violation of Article 11 of the DSU. 
Thus, the Appellate Body upheld, albeit for different reasons, the Panel's finding that 
clove and menthol cigarettes are "like products " within the meaning of Article 2.1 of the 
TBT Agreement. 
4.3.1.2  "Less favourable treatment" under Article 2.1 of the TBT Agreement 
The Appellate Body addressed the interpretation of  the "treatment no less favourable" requirement 
under Article 2.1 of the TBT Agreement. Moreov er, the Appellate Body considered the United 
States' specific claims that: (i) the Panel improperly narrowed the product scope of its analysis by 
focusing exclusively on the treatment accorded to imported clove cigarettes and to domestic 
menthol cigarettes; (ii) the Panel improperly narrowed the temporal scope of its analysis by 
focusing exclusively on the effects of Section 907(a)(1)(A) on domestic like products at the time 
that the measure came into effect; (iii) the Panel erred in finding that the less favourable treatment accorded to imported clove cigarettes was related to the origin of the products; and (iv) 
the Panel acted inconsistently with Article 11 of the DSU in reaching these findings. 
The Appellate Body considered that Article III:4 of  the GATT 1994 constitutes relevant context for 
the interpretation of the "treatment no less fa vourable" requirement under Article 2.1 of the 
TBT Agreement. Referring to Appellate Body case  law under Article III:4 of the GATT 1994, the 
Appellate Body stated that a panel examining a claim of violation under Article 2.1 should seek to 
ascertain whether the technical regulation at issue modifies the conditions of competition in the market of the regulating Member to the detriment of the group of imported products vis-à-vis the 
group of like domestic products. The Appellate Body  explained, however, that the context of the 
TBT Agreement, in particular, the sixth recital of its preamble and Article 2.2, as well as the object and purpose of the TBT Agreement, weigh in favour of interpreting the "treatment no less 
favourable" requirement of Article 2.1 as not prohibiting detrimental impact on imports that stems 
exclusively from a legitimate regulatory distinction. Rather, the "treatment no less favourable" requirement of Article 2.1 prohibits only de ju re and de facto discrimination against imported 
products. Thus, where the technical regulation at issue does not de jure discriminate against 
imports, the existence of a detrimental impact on competitive opportunities for the group of 
imported products vis-à-vis the group of domestic like products is not dispositive of less favourable treatment under Article 2.1. Instead, a panel must further analyze whether the detrimental impact 
on imports stems exclusively from a legitimate regulatory distinction rather than reflecting 
discrimination against the group of imported products. In making this determination, a panel must carefully scrutinize the particular circumstances of the case, that is, the design, architecture, 
revealing structure, operation, and application of the technical regulation at issue, and, in 
particular, whether that technical regulation is even-handed, in order to determine whether it 
discriminates against the group of imported products. 
With regard to the United States' appeal regardin g the product scope of the Panel's less favourable 
treatment analysis, the Appellate Body considered that, in determining the scope of like imported 
and domestic products, a panel is not limited to those products specifically identified by the complaining Member. Rather, a panel must objectively assess and identify, based on the nature 
and extent of their competitive relationship, the domestic products that are "like" the products 
imported from the complaining Member. Once the universe of imported and domestic like products WT/AB/18 
 
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  has been identified, the treatment accorded to all like products imported from the complaining 
M e m b e r  m u s t  b e  c o m p a r e d  t o  t h a t  a c c o r d e d  t o  all like domestic products. With regard to the 
group of imported products, the Appellate Body rejected the United States' argument that the 
Panel erred in failing to include in its analysis the treatment accorded to menthol cigarettes 
imported into the United States from all Members.  The national treatment obligation of Article 2.1 
calls for a comparison of treatment accorded to the group of like products imported from the Member alleging a violation of Article 2.1, and tr eatment accorded to the group of like domestic 
products. It follows, in the Appellate Body's view, that the Panel did not err in finding that a 
determination of Indonesia's claims under Arti cle 2.1 required an examination of whether 
Section 907(a)(1)(A) accords to the group of products imported from Indonesia less favourable treatment than that accorded to the group of like products of US origin. With regard to the group 
of domestic products, the United States' appeal focused on the Panel's exclusion of domestically 
produced flavoured cigarettes from its less favourable treatment analysis. The Appellate Body noted, however, that the United States did no t challenge on appeal the Panel's exclusion of 
domestically produced flavoured cigarettes from  the likeness stage of its analysis. Because 
Article 2.1 expressly limits the scope of the less favourable treatment comparison to imported and 
domestic like products, in the absence of specific findings by the Panel that domestically produced 
flavoured cigarettes other than menthol are like clove cigarettes, the Appellate Body was unable to 
determine whether the Panel erred in failing to in clude domestically produced flavoured cigarettes 
in its less favourable treatment analysis. 
In respect of its appeal of the temporal scope of the Panel's less favourable treatment analysis, the 
United States argued that the Panel should have taken into account evidence demonstrating that 
there were domestically produced flavoured cigarettes on the market in the years closely preceding the entry into force of the ban. In this connection, the United States' allegation of error 
was directed at the Panel's statement that "at the time of the ban, there were no domestic 
cigarettes with characterizing flavours other th an menthol cigarettes" on the US market. The 
Appellate Body agreed with the participants that  Article 2.1 does not establish a rigid temporal 
limitation on the evidence that a panel could review in assessing a claim under Article 2.1. 
According to the Appellate Body, nothing in Article 2.1 enjoins panels from taking into account evidence pre-dating the establishment of a panel to the extent that such evidence informs the 
panel's assessment of the consistency of the meas ure at the time of the establishment of the 
panel. Nevertheless, the Appellate Body considered that it was not clear that the Panel viewed 
Article 2.1 as prohibiting review of evid ence pre-dating the entry into force of 
Section 907(a)(1)(A). In the Appellate Body's view, the Panel's statement that, "at the time of the 
ban, there were no domestic cigarettes with charac terizing flavours other than menthol" on the US 
market was not the basis for the Panel's exclusion of domestic flavoured cigarettes from its less favourable treatment analysis. Rather, it was the basis for its finding that Section 907(a)(1)(A) 
imposes "costs on producers in other Members, notably producers in Indonesia, while at the same 
time imposing no costs on any US entity". 
The Appellate Body also rejected the United States' claim on appeal that the Panel acted 
inconsistently with Article 11 of the DSU in disregarding evidence demonstrating that, at the time 
of the ban, domestic flavoured cigarettes other than menthol cigarettes were marketed in the 
United States. In the Appellate Body's view, the Panel did not disregard the evidence that, 
according to the United States, demonstrated th e presence of domestically produced flavoured 
cigarettes other than menthol cigarettes on the US market at the time of the ban. Rather, the 
Panel reviewed that evidence but was ultimately not persuaded by it. In particular, the Panel did 
not exceed its authority under Article 11 of DSU by attributing to the evidence a weight and 
significance different from that attr ibuted to it by the United States. 
With regard to the United States' claim on appe al that the Panel erred in concluding that any 
detriment to the competitive opportunities for impo rted clove cigarettes could not be explained by 
factors unrelated to the foreign origin of the products, the Appellate Body recalled that the 
existence of a detrimental impact on competitive opportunities in the relevant market for the 
group of imported products vis-à-vis the group of like domestic products is not sufficient to establish a violation of the national treatment obligation contained in Article 2.1 of the 
TBT Agreement. The Appellate Body agreed with th e United States that the Panel did not clearly 
articulate its reasons for concluding that "the effect of banning cigarettes with characterizing 
flavours other than menthol is to impose costs on producers in other Members, notably producers 
in Indonesia, while at the same time imposing no costs on any US entity." Nevertheless, the 
Appellate Body was not persuaded that the Panel erred in ultimately finding Section 907(a)(1)(A) WT/AB/18 
 
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  to be inconsistent with Article 2.1. In this conne ction, the Appellate Body noted that the products 
prohibited under Section 907(a)(1)(A) consist primarily of clove cigarettes imported from Indonesia, while the like products permitted under this measure consist primarily of domestically produced menthol cigarettes. Moreover, the Appellate Body was not persuaded that the 
detrimental impact of Section 907(a)(1)(A) on competitive opportunities for imported clove 
cigarettes stems from a legitimate regulatory distin ction. The Appellate Body noted that the stated 
objective of Section 907(a)(1)(A) is to reduce youth smoking. One of the particular characteristics 
of flavoured cigarettes that makes them appealing to young people is the flavouring that masks 
the harshness of the tobacco, thus making them more pleasant to start smoking than regular cigarettes. To the extent that this particular characteristic is present in both clove and menthol cigarettes, menthol cigarettes have the same product characteristic that, from the perspective of 
the stated objective of Section 907(a)(1)(A), justifies the prohibition of clove cigarettes. Thus, the 
design, architecture, revealing structure, operation, and application of Section 907(a)(1)(A) strongly suggest that the detrimental impact on competitive opportunities for clove cigarettes 
reflects discrimination against the group of like products imported from Indonesia.  
The Appellate Body also rejected the United States' claim on appeal that the Panel acted 
inconsistently with Article 11 of the DSU because there was no basis in the record for its finding 
that Section 907(a)(1)(A) avoids imposing costs on any US entity. In the Appellate Body's view, 
the United States' claim was concerned with the Panel's less favourable treatment comparison, rather than with the alleged absence of evidence in the Panel record to justify the Panel's finding that Section 907(a)(1)(A) avoids imposing costs on any US entity. In this connection, the 
Appellate Body noted that the United States' argument that the Panel erred in not considering the 
impact of Section 907(a)(1)(A) on US producers before the entry into force of the ban, also implies that the Panel was wrong in stating that the measure imposed no costs on any US producers. The 
Appellate Body considered, therefore, that the clai m by the United States that the Panel violated 
Article 11 of the DSU because it found that Section 907(a)(1)(A) imposed "no costs on any US entity" was subsidiary to its claim that the Panel erred in concluding that Section 907(a)(1)(A) 
accords less favourable treatment to imported clove cigarettes than to like domestic menthol 
cigarettes. The Appellate Body recalled its statement in EC – Fasteners (China) that "a claim that a 
panel failed to comply with its duties under Article 11 of the DSU must stand by itself and should not be made merely as a subsidiary argument or claim in support of a claim that the panel failed 
to apply correctly a provision of the covered agreements." Accordingly, the Appellate Body found 
that the Panel did not act inconsistently wi th Article 11 of the DSU in finding that 
Section 907(a)(1)(A) accords imported clove cigarettes less favourable treatment than that 
accorded to domestic menthol cigarettes, for the purpose of Article 2.1 of the TBT Agreement. 
In the light of the above, the Appellate Body  upheld, albeit for different reasons, the 
Panel's finding that, by banning clove ci garettes while exempting menthol cigarettes 
from the ban, Section 907(a)(1)(A) accords to  imported clove cigarettes less favourable 
treatment than that accorded to domestic  menthol cigarettes, for the purpose of 
Article 2.1 of the TBT Agreement. 
4.3.2  Article 2.12 of the TBT Agreement 
On appeal, the Appellate Body considered the United States' claims that: (i) the Panel attributed 
an incorrect "interpretative value" to paragraph 5. 2 of the Doha Ministerial Decision; and (ii) the 
Panel erred in finding that Indonesia had established a prima facie  case of inconsistency with 
Article 2.12 of the TBT Agreement, that the United  States failed to rebut. Article 2.12 requires 
Members to allow a "reasonable interval" between the publication of technical regulations and their entry into force. Paragraph 5.2 of the Doha Ministerial Decision establishes that "[s]ubject to the 
conditions specified in [Article 2.12 of the TBT Agreement], the phrase 'reasonable interval' shall 
be understood to mean normally a period of not less than 6 months, except when this would be ineffective in fulfilling the legitimate objectives pursued." The period of time allowed by the United States between the publication and the entry into force of the technical regulation at issue was an 
interval of three months. The Appellate Body first considered whether paragraph 5.2 has the legal 
status of a multilateral interpretation adopted by the Ministerial Conference pursuant to Article IX:2 of the WTO Agreement. 
Article IX:2 establishes, inter alia, that interpretations of the Multilateral Trade Agreements 
contained in Annex 1 to the WTO Agreement – such as the TBT Agreement – shall be taken on the basis of a recommendation by the Council overseeing  the functioning of the relevant Multilateral WT/AB/18 
 
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  Trade Agreement. The Appellate Body noted the abse nce of evidence of the existence of a specific 
recommendation from the Council for Trade in Goods concerning the interpretation of Article 2.12 
of the TBT Agreement and, for that reason, found that paragraph 5.2 of the Doha Ministerial Decision does not constitute a multilateral interpretation adopted pursuant to Article IX:2. In the 
light of this finding, the Appellate Body considered whether, as the Panel found, paragraph 5.2 
could be characterized as a subsequent agreement of the parties within the meaning of Article 31(3)(a) of the Vienna Convention, on the interpretation of the term "reasonable interval" 
in Article 2.12 of the TBT Agreement. 
Article 31(3)(a) of the Vienna Convention requires a treaty interpreter to "[take] into account, 
together with the context" any "subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions". Based on the text of 
Article 31(3)(a), the Appellate Body considered that a decision adopted by Members may qualify 
as a "subsequent agreement between the parties"  regarding the interpretation of a covered 
agreement or the application of its provisions if: (i) the decision is, in a temporal sense, adopted 
subsequent to the relevant agreement; and (ii) the terms and content of the decision express an 
agreement between Members on the interpretation or  application of a provision of WTO law. After 
examining paragraph 5.2 of the Doha Ministerial Decision, the Appellate Body considered that 
paragraph 5.2 met both requirements. Accordingly, the Appellate Body upheld the Panel's finding 
that paragraph 5.2 constitutes a subsequent agreement between the parties, within the meaning of Article 31(3)(a) of the Vienna Convention, on the interpretation of the term "reasonable interval" in Article 2.12 of the TBT Agreement. 
The Appellate Body considered the meaning of Arti cle 2.12 of the TBT Agreement in the light of the 
interpretative clarification provided by paragraph 5.2 of the Doha Ministerial Decision. The Appellate Body observed that Article 2.12 of th e TBT Agreement explains that the reason for 
allowing an interval between the publication and the entry into force of a technical regulation is to 
allow time for producers in exporting Members, and particularly in developing country Members, to adapt their products or methods of production to the requirements of the importing Member's 
technical regulation. In the Appellate Body's view, the term "normally" in paragraph 5.2 of the 
Doha Ministerial Decision relates to the rationale of the obligation to provide a "reasonable interval" between the publication and the entry into force of a technical regulation, as expressed in 
Article 2.12 of the TBT Agreement. Thus, the Appella te Body considered that, taking into account 
the interpretative clarification provided by paragraph 5.2 of the Doha Ministerial Decision, 
Article 2.12 of the TBT Agreement establishes a rule that "normally" producers in exporting 
Members require a period of "not less than 6 months" to adapt their products or production 
methods to the requirements of an importing Member's technical regulation. 
The Appellate Body turned to the United States' claim on appeal that the Panel erred in finding 
that Indonesia had established a prima facie  case of inconsistency with Article 2.12 of the 
TBT Agreement and that the United States had failed to rebut this prima facie  case. The Appellate 
Body considered that the elements of a prima facie  case of inconsistency with Article 2.12 are to 
be drawn from a proper interpretation of that provision, taking into account – pursuant to Article 31(3)(a) of the Vienna Convention – the interpretative clarification provided by 
paragraph 5.2 of the Doha Ministerial Decision. Based on this interpretative approach to 
Article 2.12 of the TBT Agreement, th e Appellate Body considered that a prima facie  case of 
inconsistency with Article 2.12 is established where it is shown that an importing Member has 
failed to allow an interval of not less than six months between the publication and the entry into 
force of the technical regulation at issue. If the complaining Member establishes this prima facie  
case of inconsistency, it is for the responding Member to rebut this prima facie  case. According to 
the Appellate Body, the text of Article 2.12, read in the light of paragraph 5.2 of the Doha 
Ministerial Decision, provides an indication of the nature of evidence that is required to rebut a 
prima facie  case of inconsistency with that provision. In this connection, the Appellate Body 
considered that there are three ways for a responding Member – that has failed to allow a period 
of at least six months between the publication and the entry into force of its technical regulation – 
to rebut a prima facie  case of inconsistency with Article 2.12. Such a Member may establish: 
(i) that the "urgent circumstances" referred to in Article 2.10 of the TBT Agreement surrounded 
the adoption of the technical regulation at issue; (ii) that producers of the complaining Member 
could have adapted to the requirements of the te chnical regulation at issue within the shorter 
interval that it allowed; or (iii) that a period of "not less than" six months would be ineffective to 
fulfil the legitimate objectives of its technical regulation. Accordingly, the Appellate Body disagreed 
with the view expressed by the Panel that the burden was on Indonesia to establish, as part of its WT/AB/18 
 
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  prima facie  case, that allowing at least six months between the publication and the entry into force 
of Section 907(a)(1)(A) would not have rendered the objective pursued by that measure ineffective. In this connection, the Appellate Body recalled that the rule in Article 2.12, as clarified by paragraph 5.2, is expressly designed to allow producers in the complaining Member sufficient 
time to adapt their products or production methods to the requirements of the responding 
Member's technical regulation. Thus, where a responding Member seeks to deviate from this rule, which, by its own terms, singles out producers in the complaining Member as the beneficiaries of a 
"reasonable interval" between the publication and th e entry into force of a technical regulation, the 
responding Member must shoulder the burden of establishing a prima facie  case that the 
conditions under which derogations from the rule are permitted are present.  
Turning to the question of whether Indonesia had established a prima facie  case of inconsistency 
with Article 2.12 of the TBT Agreement, the Appella te Body recalled that the Panel found that the 
actual interval allowed by the United States between the publication and the entry into force of Section 907(a)(1)(A) was a three-month period. Thus, Indonesia had successfully established a 
prima facie  case of inconsistency with Article 2.12. The Appellate Body then turned to the question 
of whether the United States had rebutted the prima facie  case of inconsistency established by 
Indonesia. The Appellate Body observed that, befo re the Panel, the United States did not contend 
that the urgent circumstances referred to in Article 2.10 of the TBT Agreement surrounded the 
adoption of Section 907(a)(1)(A). Moreover, in th e Appellate Body's view, the United States had 
not submitted sufficient evidence and argument before the Panel to establish either: (i) that producers in Indonesia could have adapted to the requirements of Section 907(a)(1)(A) within the 
three-month interval between the publication and the entry into force of that measure; or (ii) that 
allowing a period of at least six months would have rendered the objective pursued by Section 907(a)(1)(A) ineffective. Thus, the Appellate Body agreed with the Panel that the 
United States had not rebutted the prima facie  case of inconsistency with Article 2.12 that 
Indonesia had established. 
The Appellate Body thus upheld, albeit for di fferent reasons, the Panel's finding that, by 
failing to allow an interval of not less than  six months between the publication and the 
entry into force of Section 907(a)(1)(A), the United States acted inconsistently with 
Article 2.12 of the TBT Agreement. 
4.4  Appellate Body Report, US – Measures Concerning the Importation, Marketing and 
Sale of Tuna and Tuna Products , WT/DS381/AB/R 
This appeal originated from a complaint brought by Mexico against certain legal instruments of the 
United States establishing the conditions for the use of a "dolphin-safe" label on tuna products. 
The legal instruments identified by Mexico in its panel request comprised the "Dolphin Protection 
Consumer Information Act" or the "DPCIA", implemen ting regulations, and a ruling by a US federal 
appeals court in Earth Island Institute v. Hogarth  relating to the application of the DPCIA 
(collectively, the "measure at issue"). The measure at issue did not make the use of a "dolphin-
safe" label obligatory for the importation or sale of tuna products in the United States. Instead, it set out the conditions under which such a label indicating "dolphin-safety" could be used. These conditions varied as a function of the area where the tuna contained in the tuna product was 
caught and the type of vessel and fishing method by which it was harvested. In particular, tuna 
products made from tuna caught by "setting on" dolphins (that is, chasing and encircling dolphins with a net in order to catch the tuna associating with them) was not eligible for a "dolphin-safe" 
label in the United States. Before the Panel, Mexico alleged that the measure at issue was 
inconsistent with Articles I:1 and III:4 of the GA TT 1994, and Articles 2.1,  2.2, and 2.4 of the 
TBT Agreement. 
4.4.1  Legal characterization  of the measure at issue 
The Appellate Body began by examining the United States' appeal of the Panel's finding that the 
measure at issue constituted a "technical regulation" within the meaning of Annex 1.1 to the TBT Agreement. On appeal, the United States had alleged, inter alia, that the Panel had failed 
properly to distinguish a "technical regulation" from a "standard" as a result of an incorrect 
interpretation of the phrase "with which compliance is mandatory" in Annex 1.1 to the TBT Agreement. WT/AB/18 
 
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  4.4.1.1  Interpretation of Annex 1.1 to the TBT Agreement 
On the basis of the text of Annex 1.1, the A ppellate Body observed that the term "technical 
regulation" is defined by reference to a "document", which in turn could "cover a broad range of instruments or apply to a variety of measures". Noting that the second sentence of Annex 1.2, 
which sets out the definition of "standard", contains language identical to that found in the 
definition of a "technical regulation", the Appella te Body explained that the subject matter of a 
particular measure is not dispositive of whether that measure constitutes a technical regulation or 
a standard. The Appellate Body concluded that the fact that "labelling requirements" may consist 
of criteria or conditions that must be complied with in order to use a particular label does not imply therefore that the measure is, for that reason alone, a "technical regulation" within the meaning of Annex 1.1. 
The Appellate Body further explained that "a panel's determination of whether a particular 
measure constitutes a technical regulation must be made in the light of the characteristics of the measure at issue and the circumstances of the ca se". The Appellate Body added that such an 
assessment "may involve considering whether the measure consists of a law or a regulation 
enacted by a WTO Member, whether it prescribes or prohibits particular conduct, whether it sets out specific requirements that constitute the sole  means of addressing a particular matter, and the 
nature of the matter addressed by the measure."  
4.4.1.2  Whether the measure at issu e constituted a "technical regulation" 
Regarding the measure at issue, the Appellate Body noted that the measure challenged by Mexico 
was composed of legislative, regulatory, and judi cial acts of the US federal authorities. The 
Appellate Body added that the measure established "a single and legally mandated set of 
requirements" for making any statement with respect to the subject of 'dolphin-safety' of a tuna product in the United States and prescribed in a broad and exhaustive manner the conditions that 
apply for making any assertion on a tuna product as to its "dolphin-safety", regardless of the 
manner in which that statement was made. The Appellate Body also attached significance to the fact that, while it is possible to sell tuna products without a "dolphin-safe" label in the 
United States, any "producer, importer, exporter, distributor or seller" of tuna products must 
comply with the measure at issue in order to make any "dolphin-safe" claim in connection with the tuna product.  
On this basis, the Appellate Body found that  the Panel did not err in characterizing the 
measure at issue as a "technical regulation" within the meaning of Annex 1.1 to the TBT 
Agreement. 
4.4.2  Article 2.1 of the TBT Agreement 
The Appellate Body then turned to address Me xico's claim that the measure at issue was 
inconsistent with Article 2.1 of the TBT Agreement because it provides "less favourable treatment" 
to Mexican tuna products than to like products originating in the United States and other countries.  
4.4.2.1  "Treatment no less favourable" under Article 2.1 of the TBT Agreement 
The Appellate Body referred, first, to its finding in US – Clove Cigarettes  that, when assessing a 
claim under Article 2.1 of the TBT Agreement, a panel should ascertain whether the technical regulation at issue modifies the conditions of competition in the relevant market to the detriment 
of the group of imported products as compared to the group of like domestic products or like 
products originating in any other country. The Appellate Body explained that, in an analysis of "less favourable treatment" under Article 2.1, any adverse impact on competitive opportunities for 
imported products vis-à-vis  like domestic products that is caused by a particular measure may be 
relevant. Having found that the Panel applied an  incorrect approach to assessing whether the 
measure at issue was inconsistent with Article 2.1 of the TBT Agreement, the Appellate Body 
turned to conduct its own analysis in the light of the factual findings made by the Panel and 
uncontested facts on the Panel record. WT/AB/18 
 
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  4.4.2.2  Conformity of the US measure with Article 2.1 of the TBT Agreement 
The Appellate Body first assessed whether the measure at issue modified the conditions of 
competition in the US market to the detriment of Mexican tuna products as compared to US tuna products or tuna products originating in any other WTO Member. The Appellate Body then 
examined whether any detrimental impact reflected discrimination against Mexican tuna products, 
or whether the measure at issue was even handed in the manner in which it addressed the risks to dolphins arising from different fishing me thods in different areas of the ocean. 
4.4.2.2.1  Whether the measure modified the co nditions of competition in the US market 
to the detriment of Mexican tuna products 
With respect to the question of whether the measure at issue modified the conditions of 
competition in the US market to the detriment of Mexican tuna products, the Appellate Body 
referred to the Panel's finding that access to the United States' "dolphin-safe" label constitutes an 
"advantage" on the US market. It further recalled the Panel's findings that: (i) the Mexican tuna cannery industry is vertically integrated, and the major Mexican tuna products producers and 
canneries own their vessels, which operate in the East ern Tropical Pacific Ocean (the "ETP"); (ii) at 
least two thirds of Mexico's purse seine tuna fleet fishes in the ETP by setting on dolphins and is therefore fishing for tuna that would not be eligible to be contained in a "dolphin safe" tuna 
product under the US dolphin-safe labelling provisio ns; (iii) the US fleet currently does not practice 
setting on dolphins in the ETP; and (iv) as the practices of the US and Mexican tuna fleets currently stand, most tuna caught by Mexican vessels, being caught in the ETP by setting on dolphins, would not be eligible for inclusion in a dolphin safe product under the US dolphin safe 
labelling provisions, while most tuna caught by US vessels is potentially eligible for the label. In 
the light of these findings, the Appellate Body found that the conditions of competition in the US market had been modified to the detriment of Mexican tuna products.  
The Appellate Body further examined whether it was the measure at issue, rather than private 
actors, that caused the detrimental impact to Mexican tuna products. The Appellate Body observed that the fact that the detrimental impact on Mexican tuna products may involve some element of 
private choice did not relieve the United States of responsibility under the TBT Agreement, where 
the measure it adopted denied access to the "dolphin-safe" label to most Mexican tuna products. The Appellate Body therefore concluded that it wa s the measure itself, rather than private action, 
that modified the competitive conditions in the US market to the detriment of Mexican tuna 
products. 
4.4.2.2.2  Whether the detrimental impact reflected discrimination 
With respect to the question of whether this detrimental impact reflected discrimination, the 
Appellate Body recalled that the Panel had found the United States' objectives of informing 
consumers and protecting dolphins to be legitimate  objectives within the meaning of Article 2.2 of 
the TBT Agreement. The Appellate Body noted: (i ) that both Mexico and the United States had 
recognized that setting on dolphins may adversely affect dolphins"; (ii) the Panel's statement that 
the "number of dolphins killed in the ETP before the adoption of the controls established by the 
[Agreement on the International Dolphin Conservation Program], and the ensuing degradation of dolphin stocks in this area, are well-documented", adding that "Mexico does not deny that dolphins 
may be killed or seriously injured during purs e-seine net fishing manoeuvres"; and (iii) the 
United States did not contest that "under the DPCIA provisions that are currently applicable all 
tuna products containing tuna caught in a non- ETP fishery using a method other than setting on 
dolphins are eligible to be labelled dolphin safe without certifying that no dolphin was killed or 
seriously injured in the set". The Appellate Body also reviewed a number of factual findings made by the Panel that were challenged by the United States as inconsistent with Article 11 of the DSU, 
and found no fault with the Panel's assessment of the evidence. 
The Appellate Body then proceeded to examine the United States' contention that, to the extent 
that there were any differences in criteria that must be satisfied in order to substantiate "dolphin-safe" claims, they were "calibrated" to the risk that dolphins may be killed or seriously injured 
when tuna is caught. WT/AB/18 
 
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  The Appellate Body noted that th e aspect of the measure at issue that caused the detrimental 
impact on Mexican tuna products was the difference in labelling conditions for tuna products containing tuna caught by setting on dolphins in the ETP, on the one hand, and for tuna products containing tuna caught by other fishing meth ods outside the ETP, on the other hand. The 
Appellate Body therefore found that the question before it was whether the United States had 
demonstrated that this difference in labelling conditions was a legitimate regulatory distinction, and hence whether the detrimental impact of the measure stemmed exclusively from such a 
distinction rather than reflecting discrimination. 
The Appellate Body noted that the Panel had accept ed the United States' argument that the fishing 
technique of setting on dolphins is particularly harmful to dolphins. However, the Panel did not agree with the United States, based on the eviden ce that Mexico had placed before it, that the 
risks to dolphins from other fishing techniques were insignificant and did not under some 
circumstances rise to the same level as the risks from setting on dolphins. 
The Appellate Body further noted that the measure at issue addressed the observed and 
unobserved adverse effects on dolphins (such as cow-calf separation; potential muscle injury 
resulting from the chase; immune and reproductive systems failures; and other adverse health consequences for dolphins, such as continuous acute stress) resulting from the use of the fishing 
method that Mexico's fleet predominantly employs by disqualifying all tuna products containing 
tuna harvested with that method from access to the "dolphin-safe" label, while not addressing 
adverse effects on dolphins resulting from the use of fishing methods predominantly employed by fishing fleets supplying the United States' and other countries' tuna producers. The Appellate Body 
recalled the Panel's finding that the only requirement applicable to purse seine vessels fishing 
outside the ETP was to provide a certification by the captain that no purse seine net was intentionally deployed on or used to encircle dolphins during the fishing trip. This requirement, 
however, did not address risks from other fishing methods, such as fish aggregating devices 
("FADs"). The Appellate Body furt her noted the Panel's statement that risks to dolphins resulting 
from fishing methods other than setting on dolphins "could only be monitored by imposing a 
different substantive requirement, i.e. that no dolp hins were killed or seriously injured in the sets 
in which the tuna was caught." 
On this basis, the Appellate Body concluded that the United States had not demonstrated that the 
difference in labelling conditions for tuna products containing tuna caught by setting on dolphins in 
the ETP, on the one hand, and for tuna products containing tuna caught by other fishing methods 
outside the ETP, on the other hand, was "calibrated" to the risks to dolphins arising from different fishing methods in different areas of the ocean. For the Appellate Body, it followed from this that 
the United States had not demonstrated that the detrimental impact of the US measure on 
Mexican tuna products stemmed exclusively from a legitimate regulatory distinction. The Appellate Body explained that "the US measure fully addresses the adverse effects on dolphins 
resulting from setting on dolphins in the ETP, whereas it does 'not address mortality (observed or 
unobserved) arising from fishing methods other than setting on dolphins outside the ETP." Therefore, the Appellate Body was not persuaded that the United States had demonstrated that 
the measure was even-handed in the manner in whic h it addressed the risks to dolphins arising 
from different fishing methods in different areas of the ocean, even accepting that the fishing 
technique of setting on dolphins was particularly harmful to dolphins. 
4.4.2.2.3  Conclusion under Ar ticle 2.1 of the TBT Agreement 
The Appellate Body reversed the Panel's finding that the measure at issue was not 
inconsistent with Article 2.1 of the TBT Agreement.  The Appellate Body found, instead, that 
the measure challenged by Mexico provided "less favourable treatment" to Mexican tuna products 
than that accorded to tuna products of the United States and tuna products originating in other 
countries and was therefore inconsistent wi th Article 2.1 of the TBT Agreement.  
4.4.3  Article 2.2 of the TBT Agreement The Appellate Body turned next to the United States' appeal of the Panel's finding that the 
measure at issue is more trade restrictive than necessary to fulfil its legitimate objectives, and 
that, therefore, the measure is inconsistent with Article 2.2 of the TBT Agreement. WT/AB/18 
 
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  4.4.3.1  Interpretation of Article 2.2 of the TBT Agreement 
The Appellate Body noted that the first sentence of Article 2.2 requires WTO Members to ensure 
that their technical regulations are not prepared, ad opted, or applied with a view to, or with the 
effect of, creating unnecessary obstacles to in ternational trade, while the second sentence 
provides that "[f]or this purpose, technical regulations shall not be more trade restrictive than 
necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create". The Appellate Body then addressed the different elements set out in the text of Article 2.2. 
The Appellate Body found that, in adjudicating a claim under Article 2.2 of the TBT Agreement, a 
panel must assess what objective a Member seeks to achieve by means of a technical regulation and whether this particular objective is legitimate. The Appellate Body further considered that the question of whether a technical regulation "fulfils " an objective is concerned with the degree of 
contribution that the technical regulation make s toward the achievement of the objective. The 
Appellate Body found support for this reading of the phrase "fulfil a legitimate objective" in the sixth recital of the preamble of the TBT Agreemen t, which recognizes that a Member shall not be 
prevented from taking measures necessary to achieve its legitimate objectives "at the levels it 
considers appropriate", subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between countries where 
the same conditions prevail or a disguised restriction on international trade, and are otherwise in 
accordance with the TBT Agreement. For the Appellate Body, a WTO Member, by preparing, 
adopting, and applying a measure in order to pursue a legitimate objective, articulates either implicitly or explicitly the level at which it seeks to pursue that particular legitimate objective. The 
Appellate Body emphasized, however, that a pane l adjudicating a claim under Article 2.2 of the 
TBT Agreement must seek to ascertain to what degree the challenged technical regulation, as 
written and applied, actually contributes to the legitimate objective pursued by the Member.  
Turning then to the requirement of "necessity" in Article 2.2, the Appellate Body found that this 
concept involves a relational analysis of the trade-restrictiveness of the technical regulation, the degree of contribution that it makes to the achi evement of a legitimate objective, and the risks 
non-fulfilment would create. The Appellate Body considered that these factors together provide the 
basis for the determination of what is to be consid ered "necessary" in the sense of Article 2.2 in a 
particular case. The Appellate Body found that Article 2.2 is thus concerned with restrictions on international trade that exceed what is necessary  to achieve the degree of contribution that a 
technical regulation makes to a legitimate ob jective. The Appellate Body explained that a 
"necessity" analysis in the context of Article 2.2 of the TBT Agreement would in most cases involve 
a comparison of the trade-restrictiveness and th e degree of achievement of the objective of the 
measure at issue with that of possible alternative measures that may be reasonably available and 
less trade restrictive than the challenged measure, taking account of the risks non-fulfilment would 
create. The Appellate Body added that a comparison of the challenged measure with a possible 
alternative measure should be made in the light of  the nature of the risks at issue and the gravity 
of the consequences that would arise from non-fulfilment of the legitimate objective. 
In sum, the Appellate Body found that an assessm ent of whether a technical regulation is "more 
trade-restrictive than necessary" within the meanin g of Article 2.2 of the TBT Agreement involves 
an evaluation of a number of factors, includin g: (i) the degree of contribution made by the 
measure to the legitimate objective at issue; (ii) the trade-restrictiveness of the measure; and (iii) 
the nature of the risks at issue and the gravit y of consequences that would arise from non-
fulfilment of the objective(s) pursued by the Member through the measure. The Appellate Body 
noted that, in most cases, a comparison of the challenged measure and possible alternative measures should be undertaken. The Appellate Body said that it may be relevant for the purpose 
of this comparison to consider whether the proposed alternative is less trade restrictive, whether it 
would make an equivalent contribution to the relevant legitimate objective, taking account of the risks non-fulfilment would create, and whether it is reasonably available. 
With this in mind, the Appellate Body reviewed the Panel's application of Article 2.2 of the TBT 
Agreement to the facts of this dispute. The A ppellate Body recalled that Mexico had presented 
"coexistence" of the US "dolphin-safe" label and the Agreement on the International Dolphin Conservation Program ("AIDCP") label as a reasonably available and less trade-restrictive 
alternative measure. WT/AB/18 
 
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  4.4.3.2  Application of Arti cle 2.2 of the TBT Agreement 
The Appellate Body found that the Panel's analysis of whether Mexico had demonstrated that the 
measure at issue was "more trade-restrictive than  necessary" within the meaning of Article 2.2 
was based, in part, on an improper comparison. With respect to the dolphin protection objective, 
the Panel had contrasted the AIDCP labelling requirements with the US "dolphin safe" labelling 
provisions, stating that "allowing compliance" with the former to be advertised on the US market would discourage observed dolphin mortality resulting from setting on dolphins to the same extent 
as the existing US dolphin-safe provisions do. Similarly, with respect to the consumer information 
objective, the Panel had noted, inter alia , that, under the US measures, it was possible that tuna 
caught during a trip where dolphins were in fact killed or injured may be labelled "dolphin-safe". The Panel had compared that to the scenario un der the AIDCP, where a label would only be 
granted if no dolphins were killed, but where ce rtain unobserved adverse effects could nonetheless 
have been caused to dolphins. The Appellate Body observed that this comparison failed to take into account that the alternative measure identified by Mexico was not the AIDCP regime as such, 
but rather the coexistence of the AIDCP rules with the US measure. 
The Appellate Body found that, in respect of the conditions for labelling as "dolphin-safe" tuna 
products containing tuna harvested outside  the ETP, there was no difference between the measure 
at issue and the alternative measure identified by Mexico. Thus, with respect to fishing activities 
outside  the ETP, the degree to which the United States' objectives are achieved under the 
alternative measure proposed by Mexico would be identical to that achieved by the measure at 
issue. Inside  the ETP, however, the measure at issue and the alternative measure set out different 
requirements. Under the alternative measure, tuna caught by setting on dolphins would be eligible 
for a "dolphin-safe" label if the prerequisites of the AIDCP label have been complied with. By 
contrast, the measure at issue prohibited setting on dolphins, and thus tuna harvested in the ETP 
would only be eligible for a "dolphin-safe" label if it was caught by methods other than setting on 
dolphins. Accordingly, the Appellate Body concluded that the particular alternative measure identified by Mexico would at least inside the ETP contribute to both the consumer information 
objective and the dolphin protection objective to a lesser degree than the measure at issue, since, 
overall, the alternative measure would allow more tuna harvested in conditions that adversely affect dolphins to be labelled "dolphin-safe". 
For these reasons, the Appellate Body found that the Panel's comparison and analysis 
was flawed and could not stand. Accordingly,  the Appellate Body reversed the Panel's 
finding that the measure at issue was inconsistent with Article 2.2 of the TBT Agreement. 
4.4.3.3  Other appeal by Mexico 
Mexico filed two conditional other appeals in the ev ent that the Appellate Body were to reverse the 
Panel's finding that the measure at issue is inconsistent with Article 2.2 of the TBT Agreement. As 
the condition on which Mexico premised its appeals was met, the Appellate Body first examined 
Mexico's request that it reverse the Panel's interm ediate finding that the United States' objective 
of contributing to the protection of dolphins by  ensuring that the US market is not used to 
encourage fishing fleets to catch tuna in a manner that adversely affects dolphins is a legitimate 
objective within the meaning of Article 2.2. Mexico did not claim that "contributing to the 
protection of dolphins" is an illegitimate objective; instead, Mexico argued that it is illegitimate to pursue this objective "by ensuring that the US ma rket is not used to encourage" certain fishing 
practices. As the Appellate Body understood it, Mexico thus did not take issue with the 
United States' dolphin protection objective per se , but with the means used in pursuance of this 
objective. The Appellate Body noted that the mere  fact that a WTO Member adopts a measure that 
entails a burden on trade in order to pursue a particular objective cannot per se provide a 
sufficient basis to conclude that the objective is not "legitimate" within the meaning of Article 2.2. 
Mexico also requested that the Appellate Body find the measure at issue to be inconsistent with 
Article 2.2 based on the Panel's earlier finding that the measure did not entirely fulfil the 
United States' objectives. The Appellate Body noted that the Panel did not find that the measure at 
issue did not fulfil their objectives or was not "capable" of fulfilling the United States' objectives, but that the measure did fulfil the United States' objectives to a certain extent. The Appellate Body 
recalled that the question of whether a technical regulation "fulfils" an objective is concerned with 
the degree of contribution that the technical regulation makes toward the achievement of the WT/AB/18 
 
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  legitimate objective. The Appellate Body added th at an assessment of the necessity of a measure's 
trade restrictiveness under Article 2.2 therefore focuses on the extent to which a measure contributes to the objective pursued. 
On this basis, the Appellate Body rejected both Mexico's claim that the Panel erred in finding the 
United States' dolphin protection objective to be a legitimate objective and Mexico's request to find 
the measure at issue inconsistent with Article 2.2 of the TBT Agreement based on the Panel's 
finding that the measure did not entirely fulfil its objectives. 
4.4.4  Article 2.4 of the TBT Agreement 
4.4.4.1  Interpretation of Article 2.4 of the TBT Agreement The Appellate Body observed that the United States ' appeal required it to decide what constitutes 
an "international standard" for purposes of th e TBT Agreement. The Appellate Body emphasized 
that this question was important because, under Arti cle 2.4, if a standard is found to constitute a 
"relevant international standard", WTO Members are required to use it, or its relevant parts, as a basis for their technical regulations, except when such standard would be an ineffective or 
inappropriate means for the fulfilment of the le gitimate objectives pursued by the Member in 
question. 
The Appellate Body found that a required element of  the definition of an "international" standard 
for purposes of the TBT Agreement is the appr oval of the standard by an "international 
standardizing body", that is, a body that has recognized activities in standardization and whose membership is open to the relevant bodies of at least all WTO Members. With respect to the requirement that the body have "recognized acti vities in standardization", the Appellate Body 
found that a "standardizing body" does not need to have standardization as its principal function, 
or even as one of its principal functions, in order to have "recognized activities in standardization". 
With respect to the requirement that membership in an international standardizing body be "open 
to the relevant bodies of at least all Members" , the Appellate Body noted that the TBT Agreement 
distinguishes international bodies, "whose membership is open to the relevant bodies of at least all Members", from regional bodies, "whose membership is open to the relevant bodies of only some 
of the Members". The Appellate Body further noted that both the United States and Mexico had 
referred in their arguments to the TBT Committee Decision on Principles for the Development of International Standards, Guides and Recommendations  with Relation to Articles 2, 5, and Annex 3 
to the TBT Agreement. The Appellate Body exam ined whether the Decision could qualify as a 
"subsequent agreement between the parties regarding the interpretation of the treaty or the 
application of its provisions" within the meaning of Article 31(3)(a) of the Vienna Convention and therefore provided context that had to be considered in interpreting Article 2.4. The 
Appellate Body observed in this regard that th e Decision was adopted by the TBT Committee in the 
context of the Second Triennial Review of the Operation and Implementation of the TBT 
Agreement, which took place in the year 2000, and was thus adopted subsequent to the 
conclusion of the TBT Agreement. The Appellate Body further noted that the membership of the 
TBT Committee comprises all WTO Members and that the Decision was adopted by consensus. While the Appellate Body accepted that the te rms and content of the Decision express an 
agreement between Members on the interpretation or application of a provision of WTO law, it 
noted that the extent to which the Decision inform s the interpretation and application of a term or 
provision of the TBT Agreement in a specific ca s e  d e p e n d s  o n  t h e  d e g r e e  t o  w h i c h  i t  " b e a r s  
specifically" on the interpretation and application of the respective term or provision. Regarding 
this question, the Appellate Body found that the TBT Committee Decision clarifies the temporal 
scope of the requirement that an international stan dardizing body be open to the relevant bodies 
of at least all WTO Members, and specifies that the body should be open on a non-discriminatory 
basis.  
The Appellate Body then turned to evaluate wh ether the Panel erred in finding that the AIDCP 
"dolphin-safe" definition and certification is a "relevant international standard" within the meaning of Article 2.4 of the TBT Agreement.  WT/AB/18 
 
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  4.4.4.2  Application of Arti cle 2.4 of the TBT Agreement 
The Appellate Body considered whether the Panel erred in concluding that the AIDCP is 
"international", that is, that membership in the AIDCP is open to the relevant bodies of at least all WTO Members. On appeal, Mexico had suggested that being invited to accede to the AIDCP is a 
"formality". Appellate Body was not persuaded an d observed that it was uncontested that the 
parties to the AIDCP had to take the decision to issue an invitation by consensus. Based on its analysis, the Appellate Body found that the Panel erred in finding that the AIDCP "dolphin-safe" 
definition and certification is a "relevant international standard" within the meaning of Article 2.4 
of the TBT Agreement. Having reached this conc lusion, the Appellate Body was not required to 
address the issue of whether the Panel erred in finding that Mexico had failed to demonstrate that the AIDCP standard is an effective and appropriate means to fulfil the United States' objectives. In 
the light of the Appellate Body's findings, the Panel's ultimate conclusion that the measure at issue 
was not inconsistent with Article 2.4 of the TBT Agreement stood. 
4.4.5  Mexico's claims under Arti cles I:1 and III:4 of the GATT 1994 
The Appellate Body turned finally to address Mexico 's contention that the Panel erred in exercising 
judicial economy with respect to Mexico's claims under Articles I and III:4 of the GATT 1994, thereby acting inconsistently with its obligations under Article 11 of the DSU. The Appellate Body 
noted that the Panel's decision to exercise judici al economy appeared to rest upon the assumption 
that the obligations under Article 2.1 of the TB T Agreement and Articles I:1 and III:4 of the 
GATT 1994 are substantially the same. The Appellate Body did not agree with that proposition. The Appellate Body added that the Panel should have made additional findings under the GATT 1994 in 
the event that the Appellate Body were to disagree  with the Panel's view that the measure at issue 
is a "technical regulation" within the meaning of the TBT Agreement. As a result, it would have been necessary for the Panel to address Mexico's claims under the GATT 1994 given that the Panel 
found no violation under Article 2.1 of the TBT Agreement. The Appellate Body found that, by 
failing to do so, the Panel engaged in an exer cise of "false judicial economy" and acted 
inconsistently with its obligations under Article 11 of the DSU. 
4.5  Appellate Body Reports, US – Certain Country of  Origin Labelling (COOL) 
Requirements , WT/DS384/AB/R, WT/DS386/AB/R 
This appeal arose from challenges made by Canada and Mexico (the "complainants") to certain 
country of origin labelling ("COOL") requirements imposed by the United States. These 
requirements were contained in the Agricultural  Marketing Act of 1946, as amended by the Farm 
Security and Rural Investment Act of 2002 and the Food, Conservation, and Energy Act of 2008 
(the "COOL statute"), passed by the US Congress, and its implementing regulations, promulgated 
by the Secretary of Agriculture through the Agricultural Marketing Service ("AMS") of the US 
Department of Agriculture (the "2009 Final Ru le (AMS)"). The Panel referred to the COOL 
requirements under the COOL statute and the 2009 Final Rule (AMS) collectively as the "COOL 
measure". The COOL measure imposed an obligation on retailers selling specific products in the 
United States to label those products with their country(ies) of origin. Muscle cuts of beef and pork were among the products subject to such labelling requirements. The COOL measure defined "origin", in the case of meat, as a function of the countries in which the production steps involving 
the animals from which that meat was derived took  place. Three production steps were relevant 
for this purpose: birth, raising, and slaughter. Thus, although the labelling requirement under the 
COOL measure applied to meat rather than livestock , the products at issue in these disputes were 
imported Canadian cattle and hogs and imported Mexican cattle, which were used in the 
United States to produce beef and pork. 
The COOL measure established four categories of origin, and hence four types of labels, for muscle 
cuts of beef and pork. Category A was reserved for meat derived from animals born, raised, and 
slaughtered in the United States. Such meat had to be labelled as US origin. Category B concerned meat derived from animals born in a foreig n country and raised and slaughtered in the 
United States. Meat in this category had to be labelled as a product of both countries, and the 
countries of origin could be listed in any order.  Category C concerned meat derived from animals 
raised outside the United States and imported into the United States for immediate slaughter. Such meat had to be labelled as a product of the United States and of the country(ies) in which 
the animals were born and raised, but the label could not list the United States first. Category D 
was reserved for meat produced from animals that  were slaughtered outside the United States and WT/AB/18 
 
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  imported into the United States in the form of meat. Meat in this category had to be labelled 
according to the country of origin declared on import documentation. Notwithstanding these rules, the COOL measure provided that meat could bear  a different label from the one it should in 
principle bear when livestock or meat of different "origins" was processed together on a single 
production day ("commingled"). Specifically, when Category B meat was commingled with either 
Category A or Category C meat, all of the resulting meat could be labelled as if it were Category B meat. The COOL also provided for several exclusions and exemptions, in particular that beef and 
pork needed not be labelled when they were: (i) an ingredient in a "processed food item"; (ii) sold 
in "food service establishments", such as restaurants and cafeterias; or (iii) sold in butcher shops and small supermarkets. Finally, the COOL measur e imposed certain recordkeeping, auditing, and 
verification requirements on upstream livestock and meat producers, whereby such producers 
needed to possess, at every stage of the supply and distribution chain, information on the origin of 
each animal and piece of meat, and they needed  to transmit such information to the next 
processing stage.  
4.5.1  Article 2.1 of the TBT Agreement 
The United States requested the Appellate Body to reverse the Panel's finding that the COOL 
measure was inconsistent with Article 2.1 of the TBT Agreement. The United States claimed that 
the Panel erred in finding that: (i) the COOL measure treated imported livestock differently than 
domestic livestock; and (ii) the COOL measure accorded less favourable treatment to imported livestock by modifying the conditions of competition to the detriment of imported livestock. The United States also identified several findings as having been made in a manner inconsistent with 
the Panel's duties under Article 11 of the DSU. 
4.5.1.1  Interpretation of Article 2.1 The Appellate Body recalled that, with respect to the national treatment obligation under 
Article 2.1 of the TBT Agreement, an analysis of  less favourable treatment involves an assessment 
of whether the technical regulation at issue modifies the conditions of competition in the relevant market to the detriment of the group of imported products vis-à-vis  the group of like domestic 
products. Moreover, Article 2.1 prohibits both de jure  and de facto  less favourable treatment. In 
determining whether the operation of the measure, in the relevant market, has a de facto detrimental impact on the group of like imported products, a panel must take into consideration the totality of facts and circumstances before it, including any implications for competitive 
conditions discernible from the design and structure of the measure itself, as well as all features of 
the particular market at issue that are relevant to the measure's operation within that market.  
However, the Appellate Body explained that, as found in US – Clove Cigarettes , not every instance 
of a detrimental impact amounts to the less favourable treatment of imports that is prohibited 
under Article 2.1. Rather, some technical regulations that have a de facto detrimental impact on imports may not be inconsistent with Article 2.1 when such impact stems exclusively from a 
legitimate regulatory distinction. In contrast, where a regulatory distinction is not designed and 
applied in an even handed manner – because, for example, it is designed or applied in a manner that constitutes a means of arbitrary or unjustifi able discrimination – that distinction cannot be 
considered "legitimate" and thus the detrimental impact will reflect discrimination prohibited under 
Article 2.1. In assessing even handedness, a panel must carefully scrutinize the particular 
circumstances of the case, that is, the design, ar chitecture, revealing structure, operation, and 
application of the technical regulation at issue. 
With regard to burden of proof, the Appellate Body recalled that, as with all affirmative claims, it is 
for the complaining party to show that the treatment accorded to imported products is less favourable than that accorded to like domestic products. Therefore, where the complaining party 
has met the burden of making its prima facie  case, for example, by adducing evidence and 
arguments showing that the measure is not even handed, this would suggest that the measure is 
inconsistent with Article 2.1. If, however, the re spondent rebuts that, by demonstrating that the 
detrimental impact on imported products stems exclusively from a legitimate regulatory 
distinction, it follows that the challenged measure is not inconsistent with Article 2.1. WT/AB/18 
 
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  4.5.1.2  Different treatment under the COOL measure 
With respect to the United States' claim that the Panel erred in concluding that the COOL measure 
on its face accorded different treatment to imported livestock, the Appellate Body noted that formal different treatment is not required for a finding of de facto  less favourable treatment to be 
made. In any event, the Appellate Body did not co nsider that the Panel relied on any instance of 
different treatment explicitly provided for under the COOL measure to support its ultimate finding that the COOL measure accorded less favourable treatment to imported livestock than to like 
domestic livestock. Rather, the statement challeng ed by the United States formed part of an 
introductory section setting out the Panel's understanding of the measure's de jure  structure and 
operation, and preceded its in depth analysis of de facto  less favourable treatment. The Appellate 
Body therefore found that the Panel did not err in  stating that the COOL measure treated imported 
livestock differently than domestic livestock. 
4.5.1.3  Detrimental impact on imported livestock The Appellate Body next turned to the United States' claim that the Panel erroneously found the 
COOL measure to accord less favourable treatment to imported livestock. The United States 
argued that the Panel erred in examining the effect  of "external factors", such as the small market 
share held by imported livestock and the decisions of private market participants, to determine 
whether imported livestock and like domestic livestock were "equally competitive", rather than 
examining whether the measure itself treated imported livestock differently and less favourably 
than like domestic livestock. 
The Appellate Body considered the circumstances in this case to be similar to those in Korea – 
Various Measures on Beef . In that dispute, the Appellate Body held that the adoption of a 
measure, which required small retailers to sell either exclusively domestic beef or exclusively imported beef, had the direct practical effect, in the relevant market, of denying competitive 
opportunities to imports. In that case the Appellate  Body did not, as the United States maintained, 
find a detrimental impact on imported beef due only to the legal necessity of making a choice that the measure itself imposed. Rather, the findings in that dispute support the proposition that, 
whenever the operation of a measure in the market creates incentives for private actors 
systematically to make choices in ways that bene fit domestic products to the detriment of like 
imported products, then such a measure may be found to treat imported products less favourably. The Appellate Body recalled that the intervention  of some element of private choice does not 
relieve a Member of responsibility for the resulting establishment of competitive conditions less 
favourable for the imported product than for the domestic product, and thus does not preclude a finding that the measure provides less favourable treatment.  
The Appellate Body rejected the United States' co ntention that, in the COOL disputes, the Panel 
wrongly attributed to the COOL measure a detrimental impact on imports caused exclusively by factors "external" to that measure. The Appellate Body considered that the Panel's analysis 
indicated that the COOL measure itself, as applied in the US livestock and meat market, created 
an incentive for US producers to segregate livestock according to origin, in particular by processing exclusively US origin livestock. In its analysis, the Panel properly reasoned that the small market share held by Canadian and Mexican livestock imports exacerbated the effects of the COOL 
measure. Indeed, in the Appellate Body's view, the opportunity for a technical regulation to 
discriminate may well derive from its operation within a given market that exhibits particular characteristics, including the market share held by imported products. The Appellate Body further 
considered that, where private actors are induced or encouraged to take certain decisions because 
of the incentives created by a measure, those de cisions are not independent of that measure. The 
Appellate Body noted that, in this case, the Panel expressly found that it was "the result of the 
COOL measure" that, when faced with the ch oice between a scenario involving exclusively 
domestic livestock and a scenario involving both domestic and imported livestock, private market participants opted predominantly for the former. The Panel also correctly reasoned that, had it not been for the COOL measure, market participants would not have acted this way. WT/AB/18 
 
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  On this basis, the Appellate Body found that the Panel did not err in finding that the COOL 
measure modified the conditions of competition in the US market to the detriment of imported livestock by creating an incentive in favour of processing exclusively domestic livestock and a disincentive against handling imported livestoc k. The Appellate Body, however, found that the 
Panel should have continued its examination under Article 2.1 and determined whether the 
circumstances of this case indicated that the detrimental impact stemmed exclusively from a legitimate regulatory distinction. Before examining the Panel's relevant findings with a view to 
reaching a determination in this respect, the Ap pellate Body first turned to the United States' 
claims raised under Article 11 of the DSU. 
4.5.1.4  Article 11 of the DSU The United States alleged that the Panel acted inconsistently with its obligations under Article 11 
of the DSU in finding that the COOL measure "n ecessitate[d]" segregation, and in ignoring 
evidence showing that producers were taking adva ntage of the commingling flexibilities contained 
in the measure in order to avoid segregation "on a widespread basis". Upon reviewing the Panel's 
findings and its treatment of relevant evidence, the Appellate Body did not consider that the 
Panel's determinations regarding segregation and co mmingling evinced a failure to assess the facts 
objectively. The United States pointed to no evid ence that it submitted to the Panel demonstrating 
that the COOL measure's recordkeeping and verifica tion requirements were being complied with by 
means other than segregation. Rather, the evidence to which the United States referred was expressly considered by the Panel and deemed inconclusive in this regard. The fact that the Panel found this evidence not to be probative simply indicated that the Panel declined to attribute to the 
evidence the weight and significance that the United States considered it should have.  
The United States also claimed that the Panel failed to make an objective assessment of the facts 
relating to the price differential between dome stic and imported livestock in the US market, 
because the Panel ignored certain evidence, and because its finding that the Sumner Econometric 
Study submitted by Canada demonstrated negative price effects on imports lacked a factual basis. The Appellate Body found that the evidence that the United States claimed the Panel ignored was 
of a different nature than, and did not vitiate th e Panel's reliance on, the evidence submitted by 
Canada and Mexico. Moreover, the Appellate Bo dy noted that the Panel assessed econometric 
studies submitted by both Canada and the United States, determined that only the Sumner Econometric Study was sufficiently robust, and provided reasons for this conclusion. In any event, 
the Appellate Body considered that, because the Panel was not required to examine the actual 
trade effects of a measure in order to reach a finding on less favourable treatment under Article 2.1, these Panel findings did not materially affect its ultimate legal conclusion under 
Article 2.1 of the TBT Agreement.  
The Appellate Body thus concluded that the United States had not demonstrated that the Panel 
acted inconsistently with Article 11 of the DSU in reaching its findings relating to segregation, 
commingling, and the price differential between domestic and imported livestock. 
4.5.1.5  Whether the detrimental impact  reflects less favourable treatment 
The Appellate Body went on to review the Panel's findings as they related to the design, 
architecture, revealing structure, operation, and application of the COOL measure, and found that 
these findings provided a sufficient basis for it to determine whether the detrimental impact 
experienced by Canadian and Mexican livestock stemmed exclusively from a legitimate regulatory distinction. The Appellate Body noted, as a preliminary matter, that the Panel identified the 
objective pursued by the United States through the COOL measure as being "to provide consumer 
information on origin". Furthermore, the Appellate Body found that it was the distinction between the three production steps defining origin (birth, raising, and slaughter), as well as between the 
four types of labels that had to be affixed to muscle cuts of beef and pork, that constituted the 
relevant regulatory distinctions under the COOL measure. Therefore, the Appellate Body proceeded to examine, based on the particular circumstances of this case, whether these distinctions were designed and applied in an even-handed manner, or whether they lacked even-handedness, for 
example because they were designed or applied in a manner that constituted arbitrary or 
unjustifiable discrimination. WT/AB/18 
 
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  Taking account of the overall architecture of the COOL measure and the way in which it operated 
and was applied, the Appellate Body considered  that the detail and accuracy of the origin 
information that upstream producers were required to track and transmit – based on the countries in which the livestock from which meat was derived were born, raised, and slaughtered – was 
significantly greater than the origin information that retailers of muscle cuts of beef and pork were 
required to convey to their customers. This was because the labels did not indicate which 
productions steps took place in which country, and because the commingling flexibility provided for 
under the measure meant that the origin information contained on the labels could include 
countries in which no production steps in fact took place, such that a package containing exclusively US origin meat could be labelled as mixed origin. In addition, the origin of all livestock 
had to be tracked and transmitted by upstream producers in accordance with the recordkeeping 
and verification requirements even though a consid erable proportion of the beef and pork derived 
from that livestock would ultimately be exempt  from the labelling requirements and therefore 
carry no COOL label at all. Lastly, the Panel's findings indicated that a processor's decision to use 
livestock of different origins rather than exclusively US origin livestock would not only be more 
costly, it would also lead to confusing information being conveyed to consumers.  
For all of these reasons, the Appellate Body found that the informational requirements imposed on 
upstream producers under the COOL measure were disproportionate as compared to the level of 
information communicated to consumers through the mandatory retail labels, and that nothing in the Panel's findings or on the Panel record explained or supplied a rational basis for this disconnect. The Appellate Body emphasized that  this lack of correspondence between the 
recordkeeping and verification requirements, on the one hand, and the limited consumer 
information conveyed through the retail labelling requirements and exemptions therefrom, on the 
other hand, was of central importance, because th e Panel had found – and the Appellate Body had 
confirmed – that it was the recordkeeping and ve rification requirements that "necessitate[d]" 
segregation, and that created an incentive for US producers to process exclusively domestic livestock and a disincentive to process imported livestock. Consequently, because of the 
disconnect between the upstream recordkeeping and verification requirements and the information 
communicated to consumers on the prescribed retail meat labels, the detrimental impact on imports caused by the same recordkeeping and verification requirements could not be explained by the need to provide origin information to cons umers. Therefore, the Appellate Body found that 
the detrimental impact on imported livestock did not stem exclusively from a legitimate regulatory 
distinction but, instead, reflected discrimination in  violation of Article 2.1 of the TBT Agreement. 
4.5.2  Article 2.2 of the TBT Agreement 
The United States requested the Appellate Body to  reverse the Panel's finding under Article 2.2 of 
the TBT Agreement on three main grounds: (i) that the Panel erred in finding that the COOL measure was "trade restrictive"; (ii) that the Panel erred in reaching its finding regarding the 
United States' chosen "level of fulfilment" thro ugh the COOL measure; and (iii) that the Panel 
adopted an erroneous legal framework, and erre d in its application of that framework, in 
determining whether the COOL measure was more trade restrictive than necessary to fulfil a 
legitimate objective. 
The Appellate Body noted that each of the gro unds raised by Mexico in its other appeal was 
conditional upon the Appellate Body's reversal of the Panel's ultimate finding under Article 2.2, but 
considered its arguments together with Canada's when reviewing the relevant portions of the 
Panel's analysis. Canada and Mexico both claimed that the Panel erred in its legal approach, and 
acted inconsistently with its duties under Article 11 of the DSU, in identifying the objective of the 
COOL measure. Canada further contested the Panel's finding that the objective of providing 
consumer information on origin was "legitimate" within the meaning of Article 2.2. In the event 
that the Appellate Body reversed the Panel's find ing that the COOL measure was inconsistent with 
Article 2.2, then Canada and Mexico requested th e Appellate Body to complete the analysis and 
find that the COOL measure did not comply with Article 2.2 because there were less trade-
restrictive alternative measures available.  WT/AB/18 
 
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  4.5.2.1  Interpretation of Article 2.2 
The Appellate Body began its analysis with an in terpretation of the relevant elements in an 
Article 2.2 analysis, drawing in particular on the guidance provided in the report of the Appellate Body in US – Tuna II (Mexico) . With regard to the identification of the objective pursued 
by a measure, the Appellate Body found that a pane l must take account of all evidence put before 
it in this regard, including the texts of statutes, legislative history, and other evidence regarding the structure and operation of the technical re gulation at issue, and is not bound by the 
responding Member's characterization of the obje ctive it pursues through the measure. As for the 
legitimacy of the identified objective, the A ppellate Body noted that the use of the words 
"inter alia " in Article 2.2 introducing the list of legitimate objectives signifies that the list of 
legitimate objectives is not a closed one. The Appellate Body further found that the objectives 
expressly listed provide a reference point for ot her objectives that may be considered to be 
legitimate in the sense of Article 2.2. Moreover, objectives recognized in the preamble of the TBT 
Agreement and in provisions of other covered agreements may provide guidance for, or may 
inform, the analysis of what might be considered to be a legitimate objective under Article 2.2 of 
the TBT Agreement. 
Turning to the phrase "fulfil a legitimate objective" , the Appellate Body found that the word "fulfil", 
as used in Article 2.2, is concerned with the degree  of contribution that the technical regulation 
makes towards the achievement of the legitimate objective. Thus, a panel adjudicating a claim under Article 2.2 must seek to ascertain – from  the design, structure, and operation of the 
technical regulation, as well as from evidence relating to its application – to what degree, if at all, 
the challenged technical regulation, as written and applied, actually contributes to the achievement 
of the legitimate objective pursued by the Member. 
Regarding the assessment of "necessity", in the cont ext of Article 2.2, the Appellate Body recalled 
that this involves a "relational analysis" of the following factors: the trade-restrictiveness of the 
technical regulation, the degree of contribution th at it makes to the achievement of a legitimate 
objective, and the risks non-fulfilment would create. Such an analysis will, in most cases, involve a 
comparison of the trade-restrictiveness of, and th e degree of achievement of the objective by, the 
measure at issue, with that of possible alternat ive measures. This comparison should be made in 
the light of the nature of the risks at issue and the gravity of the consequences that would arise 
from non-fulfilment of th e legitimate objective. 
4.5.2.2  Trade-restrictiveness 
The United States' claimed that, because the Panel relied upon a finding that it had made in the 
course of its analysis under Article 2.1 to conclude that the COOL measure was trade restrictive for 
purposes of Article 2.2, the latter finding had to be reversed once that Article 2.1 finding had been 
reversed. Since, however, it had upheld th e Panel's finding that the COOL measure was 
inconsistent with Article 2.1, the Appellate Body found that it did not need to consider further this 
ground of the United States' appeal, and thus made no finding in this respect. 
4.5.2.3  Identification of th e COOL measure's objective 
At the outset, the Appellate Body expressed concerns with respect to the fact that the Panel's 
formulation of the objective pursued by the United St ates varied over the course of its analysis. In 
the Appellate Body's view, the Panel should have sought to avoid using different language to 
denote the same concept, given that the releva nt objective is the benchmark against which a 
panel must assess the degree of contribution made by a challenged technical regulation, as well as 
by proposed alternative measures. The Appellate Body considered that the reason for the 
difference in the formulations could have resulted from the fact that the Panel used a more general 
formulation (that is, the provision of consumer information on origin) to reflect the objective 
pursued, and a more detailed formulation (that is, the provision of as much clear and accurate  
origin information as possible  to consumers) to represent the level of fulfilment of that objective 
that the United States desired to achieve. Nevertheless, the TBT Agreement does not require that, in its examination of the objective pursued, a panel discern or identify, in the abstract, the level at 
which a responding party wishes to achieve that objective. The Appellate Body therefore 
proceeded to evaluate the claims of error rais ed on appeal on the basis that the Panel had WT/AB/18 
 
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  identified the objective pursued through the COOL measure as "to provide consumer information 
on origin". 
Canada and Mexico claimed that the Panel erroneously deferred to the United States' articulation 
of the objective rather than itself determinin g the objective pursued through the COOL measure 
based on the arguments and evidence before it relating to the design, architecture, structure, and 
legislative history of the COOL measure. The A ppellate Body noted that the Panel addressed the 
question of "what is the objective" in two separate places in its Reports. First, when considering 
whether the objective pursued by the United Stat es was legitimate, the Panel determined "the 
United States' objective" in the abstract. Second, in analyzing whether the COOL measure was more trade restrictive than necessary to fulfil its objective, the Panel considered the specific objective pursued by the COOL measure itself. The Appellate Body considered the Panel's 
segmentation of its analysis of the objective pu rsued by the COOL measure into two parts to be 
unnecessary, and expressed concerns that the Panel apparently considered itself bound to accept the objective as identified by the United States wh en it addressed the question of the objective for 
the first time. However, the Appellate Body noted that, when it considered the objective for the 
second time, the Panel did consider the evidence relating to the COOL measure's text, structure, design, operation, and legislative history. Therefor e, the Appellate Body did not agree with Canada 
and Mexico that the Panel erred in its application of Article 2.2 of the TBT Agreement by 
determining the objective of the COOL measure in the "abstract", and solely on the basis of the 
United States' declared objective.  
Canada and Mexico further claimed that the Panel failed to comply with its duties under Article 11 
of the DSU when it assessed the COOL measure's objective, because a proper assessment of the 
evidence would have yielded a conclusion that the true objective of the COOL measure was the protection of the United States' domestic produc ers of cattle and hogs. The Appellate Body found 
that Mexico's arguments were primarily based on its claim that the Panel committed legal error in 
identifying the COOL measure's objective. The Appellate Body recalled its finding that the Panel did not err in this respect, and its findings in past disputes that a claim under Article 11 of the DSU 
should not be made merely as a "subsidiary argument" in support of a claim that the panel erred 
in its application of a WTO provision. The Appellate Body further noted that Mexico did not identify any specific error by the Panel or explain why the Panel's findings lacked a factual basis. The Appellate Body therefore rejected Mexico 's claim under Article 11 of the DSU. 
With respect to Canada's claim under Article 11 of the DSU, the Appellate Body found that the 
arguments that Canada put forward consisted mainly of the identification of four groups of evidence that it had put before the Panel, coupled with an assertion that the Panel did not reach 
the appropriate conclusion based on that evid ence. The Appellate Body reviewed the Panel's 
findings with regard to each group of evidence, and found no reversible error. In the Appellate Body's view, Canada did not explain how the Panel failed to comply with its duty to 
assess objectively the facts. Rather, Canada in e ffect sought to have the Appellate Body conduct 
its own assessment of the facts, and to ascribe a different weight to the evidence than did the 
Panel. However, the Appellate Body emphasized that it was not called upon to disturb the Panel's exercise of its discretion merely because it might have arrived at a different conclusion. The 
Appellate Body therefore found that Canada had no t demonstrated that the Panel failed to satisfy 
its duty to assess objectively the facts. The Appe llate Body also rejected Canada's alternative 
claim, in the event the Appellate Body rejected its Article 11 claim, that the Panel erred in failing 
to define the objective of the COOL measure at a "sufficiently detailed level" because it did not 
identify the purpose for which information was provided to consumers. The Appellate Body found that the Panel specified the type of information to  be provided (on "origin" as defined under the 
COOL measure), and the persons to whom that in formation was to be provided (consumers).  
Finally, the United States claimed that, in concluding that the United States aimed to provide "as 
much clear and accurate origin information as possible", the Panel: (i) acted inconsistently with Article 11 of the DSU because it wilfully distorte d and misrepresented the United States' position 
as to the level at which the United States considers it appropriate to fulfil that objective; and (ii) 
failed to consider all relevant information regarding the level at which the United States sought to achieve its objective. The Appellate Body found bo th allegations to be misplaced, because they 
assumed that, in identifying the objective, the Panel was also required to identify the desired "level 
of fulfilment". The Appellate Body also disagreed with the United States' contention that the Panel 
failed to take into account the fact that part of the objective of the COOL measure was to minimize 
the costs to market participants. The Appellate Body questioned whether the United States had WT/AB/18 
 
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  made such an argument in its submissions to th e Panel and, in any event, expressed doubt that 
the balancing of cost considerations is properly considered as part of the relevant objective. For the Appellate Body, the issue of costs appeared mo re relevant in the context of assessing whether 
the COOL measure fulfilled its objective. 
On the basis of the above, the Appellate Body found that the Panel did not err in 
identifying the objective pursued by the United States through the COOL measure as being to provide consumer information on origin. 
4.5.2.4  Legitimacy of the identified objective 
Canada contended that, in interpreting Article 2. 2 of the TBT Agreement, the Panel erred in not 
adopting the ejusdem generis  principle to limit "legitimate" objectives to those objectives that are 
of the same type or kind as the ones explicitly listed in Article 2.2. The Appellate Body recalled 
that, in determining whether an unlisted objective qualifies as legitimate, a panel may usefully 
have regard to those objectives that are expressly listed in Article 2.2, because these may provide an illustration and reference point for other objectives that may be considered "legitimate". With 
respect to the ejusdem generis  principle, however, the Appellate Body did not, see, and considered 
that Canada had not elaborated, the alleged "signifi cant elements of commonality of the explicitly 
listed objectives" that would illuminate the relevant type or kind of objective that can fall within 
the class of legitimate objectives covered by Arti cle 2.2. Recalling that objectives listed in the 
recitals of the preamble of the TBT Agreement and provisions of other covered agreements may 
guide the determination of legitimacy, the Appellate Body observed that the provision of consumer information on origin bears some relation to the objective of prevention of deceptive practices 
reflected in both Article 2.2 and Article XX(d) of  the GATT 1994. The Appellate Body also observed 
that Article IX of the GATT 1994 indicates that requiring origin labelling for imported goods is, at least in some circumstances and for some definitions of "origin", considered under WTO law to be 
a permissible means of regulating trade in goods. 
The Appellate Body further recalled that the burden of showing that a specific objective is not 
"legitimate" under Article 2.2 rests on a complaining party. The Appellate Body found that Canada 
had not explained why it was not legitimate to define the origin of meat in the way the COOL 
measure defined it. Rather, as it did before the Pane l, Canada linked its approach to legitimacy to 
its arguments on the need to know the purpose for which information on origin is provided to consumers. However, this was a mere repetition of its arguments that the Panel failed to identify 
the objective of the COOL measure as trade protectionism. Furthermore, although Canada 
appeared to consider that the Panel wrongly assumed that a widely held social norm is always legitimate, the Appellate Body did not see that the Panel made any such assumption. While the 
Appellate Body did express concern over certain as pects of the Panel's analysis of "legitimacy", 
including the role that "the practice in a considerable proportion of WTO Members" and "social norms" played in that analysis, the Appellate Body was not persuaded that these ambiguities 
tainted the Panel's conclusion. The Appellate Body therefore found that the Panel did not err in 
finding that providing consumer information on origin was a legitimate objective within the meaning of Article 2.2 of the TBT Agreement. 
4.5.2.5  Whether the COOL measure is more trade restrictive than necessary 
The United States maintained that, in examining whether the COOL measure was more trade 
restrictive than necessary to fulfil a legitimate  objective, the Panel erroneously found that the 
United States acted inconsistently with Article 2.2 simply because the COOL measure did not meet 
some minimum threshold of contribution to its objective. The United States further argued that, in 
finding that the COOL measure did not fulfil its objective, the Panel ignored its own findings about the extent of the contribution that the COOL measure made to achieving its objective. WT/AB/18 
 
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  The Appellate Body recalled that a panel's assessment of whether a measure fulfils  its objective is 
concerned primarily with the actual contribution  made by a measure towards achieving its 
objective. Thus, the Appellate Body found, a pane l's assessment should focus on ascertaining the 
degree of contribution achieved by the measure,  rather than on answering the questions of 
whether the measure fulfils the objective completely or satisfies some minimum level of fulfilment 
of that objective. The Appellate Body also noted that a number of findings and observations made 
by the Panel in the course of its analysis suggested that the COOL measure did contribute to the 
objective of providing information to consumers on the countries in which the livestock from which 
meat was derived were born, raised, and slaughte red. The Panel found, for example, that Label A 
provided meaningful information and that the labe lling rules prevented meat derived from animals 
of non-US origin from carrying Label A. The Panel also found that, on the whole, the COOL 
measure provided more information to consumers than was available to them prior to its 
enactment, and that even Labels B and C provided some origin information, namely, information with regard to the possible origin of the meat. Despite these findings, the Panel nonetheless found 
that the COOL measure did not fulfil the identified objective within the meaning of Article 2.2 
because it failed to convey meaningful origin information to consumers. In so finding, the Panel apparently considered that, in order for the COOL measure to fulfil its objective, either all of the 
labels had to provide 100 per cent accurate and clear information, or that the COOL measure had 
to meet or surpass some minimu m threshold. The Appellate Body therefore found that the Panel 
erred in its interpretation of Article 2.2 of the TBT Agreement. Furthermore, because the Panel ignored its own findings, which demonstrated that the labels under the COOL measure did 
contribute towards the objective of providing consumer information on origin, it also erred in its 
analysis under Article 2.2. 
On this basis, the Appellate Body found that the Panel erred in finding that the COOL measure did 
not fulfil the identified objective within the mean ing of Article 2.2 because it failed to convey 
meaningful origin information to consumers, and reversed the Panel's ultimate finding that, for this reason, the COOL measure was inconsistent with Article 2.2 of the TBT Agreement. 
4.5.2.6  Completion of analysis under Article 2.2 
Having reversed the Panel's finding under Article 2.2 of the TBT Agreement, the Appellate Body 
proceeded to consider whether it could rule on the complainants' claim that the COOL measure was inconsistent with Article 2.2 because it was more trade restrictive than necessary to fulfil a 
legitimate objective. The Appellate Body explained that, to the extent that the factual findings of 
the panel and the undisputed facts on the panel reco rd provided a sufficient basis for its analysis, 
it would evaluate the degree of contribution made by the COOL measure to the legitimate 
objective at issue, its trade restrictiveness, and the nature of the risks at issue as well as the 
gravity of consequences that would arise from non-fulfilment of the objective. The Appellate Body also stated that it would seek to compare the COOL measure with the four alternative measures 
proposed by Canada and Mexico by examining whether the latter were less trade restrictive, would 
make an equivalent contribution to the relevant legitimate objective, and were reasonably available. 
The Appellate Body found that the Panel's fact ual findings suggested that: the COOL measure 
made some contribution to the objective of providing consumers with information on origin, in 
particular, because Label A provided "meaningful information" to consumers regarding origin even though Labels B and C did not; that it had a consid erable degree of trade restrictiveness; and that 
the consequences that could arise from non-fulfilmen t of its objective were not particularly grave. 
The Appellate Body stressed, however, that it lacked clear and precise Panel findings with regard to these factors, and, in particular, findings that would enable it to identify the degree  of 
contribution made by the COOL measure to the United States' objective. WT/AB/18 
 
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  The Appellate Body proceeded to examine the al ternative measures proposed by Canada and 
Mexico, namely: (i) a voluntary country of origin labelling requirement; (ii) a mandatory country of origin labelling requirement based on the criterion of substantial transformation; (iii) a voluntary 
country of origin labelling regime combined with mandatory country of origin labelling based on 
substantial transformation; and (iv) a trace back  regime. The Appellate Body found that it was 
unable to identify Panel findings or sufficient undisputed facts on the record that would enable it to determine: (i) to what extent the first three alternatives would contribute to the objective of the 
COOL measure, or how such a contribution would compare to the degree of contribution made by 
the COOL measure itself; and (ii) how the trade-restrictiveness of the fourth alternative would compare to the status quo . In addition, with regard to the first and third alternatives, the Appellate 
Body found that it was faced with limited elaboration by the parties of their arguments. With 
regard to the second alternative, the Appellate Body also observed that a finding made by the 
Panel in the course of its analysis of the claims raised under Article 2.4 of the TBT Agreement suggested that a mandatory labelling regime based on substantial transformation would, at best, 
contribute only partially to fulfilling  the objective of the COOL measure. 
On this basis, the Appellate Body concluded that, due to the absence of relevant factual 
determinations by the Panel, and of suffic ient undisputed facts on the record, it was 
unable to complete the legal analysis und er Article 2.2 of the TBT Agreement and 
determine whether the COOL measure was more trade restrictive than necessary to fulfil 
its legitimate objective. 
4.5.3  Articles III:4 and XXIII:1(b) of the GATT 1994 
The complainants also raised conditional appeals under Articles III:4 and XXIII:1(b) of the 
GATT 1994. In the event the Appellate Body reversed the Panel's finding under Article 2.1 of the TBT Agreement, the complainants each requested th e Appellate Body to find that the Panel erred 
in its exercise of judicial economy with respect to their claims under Article III:4, and to complete 
the analysis under that provision. If the Appellate Body reversed the Panel's finding under Article 2.1, and did not make a finding of inconsistency under Article III:4, the complainants each 
requested the Appellate Body to find that the Pa nel erred in exercising judicial economy with 
respect to their claims under Article XXIII:1(b), and to complete the analysis under that provision. Because the conditions on which these appe als were made were not satisfied, the 
Appellate Body did not make findings un der Articles III:4 and XXIII:1(b) of the 
GATT 1994.  
4.6  Appellate Body Report, China – Countervailing and Anti-Dumping Duties on Grain 
Oriented Flat-Rolled Electrical  Steel from the United States , WT/DS414/AB/R 
This dispute concerned the United States' challenge of China's imposition, through China's Ministry 
of Commerce ("MOFCOM") Notice No. 21, of anti-d umping and countervailing duties on imports of 
grain oriented flat-rolled electrical steel ("GOES") from the United States. The anti-dumping and 
countervailing investigations were initiated on 1 June 2009, following the application by two 
Chinese steel producers: Wuhan Iron and Steel (Group) Corporation ("WISCO") and Baosteel Group Corporation ("Baosteel"). Two exporters/producers of GOES in the United States – AK Steel Corporation ("AK Steel") and ATI Allegheny Ludlum Corporation ("ATI") – registered as 
respondents in both investigations. The period of dumping and subsidy investigations was from 
1 March 2008 to 28 February 2009, and the period of injury investigation was from 1 January 2006 to 31 March 2009. The subsidy investigation concerned 22 of the 27 federal and state laws 
that the applicants had alleged provided countervailable subsidies. On 20 July 2009, the applicants 
filed an additional application challenging allege d subsidies provided under 10 additional federal 
and state laws, and MOFCOM conducted an investigation covering six of these programmes. 
On 10 December 2009, MOFCOM published prelim inary dumping margins and subsidy rates in a 
preliminary determination. MOFCOM subsequently released a final injury disclosure document with the stated purpose of disclosing the "basic facts upon which the final injury determination is made". On 10 April 2010, MOFCOM issued its Fi nal Determination for the anti-dumping and 
countervailing duty investigations. The dumping margins for AK Steel and ATI were 7.8% and 
19.9%, respectively, and the subsidy rates for AK Steel and ATI were 11.7% and 12%, respectively. For the unknown US exporters/producers, MOFCOM determined an "all others" 
dumping margin of 64.8%, and an "all others" subsidy rate of 44.6%. Furthermore, MOFCOM 
found that there was a causal link between the du mped and subsidized imports of GOES from the WT/AB/18 
 
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  United States and the material injury suffere d by the domestic industry. Because MOFCOM 
conducted its injury and causation analysis by collectively taking into account GOES imports from Russia – which was implicated in the anti-dumping investigation – and the United States, various sections of the Panel Report refer to injury and causation findings by MOFCOM concerning imports 
from both countries. 
At the outset, the Appellate Body noted that, in examining the United States' challenge to 
MOFCOM's price effects finding, the Panel applied the legal standard in Article 3.2 of the Anti-
Dumping Agreement and Article 15.2 of the SCM Ag reement, in conjunction with the requirement 
set out in Article 3.1 of the Anti-Dumping Agreem ent and Article 15.1 of the SCM Agreement, that 
a determination of injury be based on positive evidence and involve an objective examination. Therefore, although China did not appeal the Panel' s interpretation and application of Articles 3.1 
and 15.1, the Appellate Body considered that its examination of the Panel's analysis under 
Articles 3.2 and 15.2 could not be conducted in isolation from the Panel's analysis pursuant to Articles 3.1 and 15.1. The Appellate Body also stated that it would examine the Panel's analysis in 
the light of the interpretation of Articles 3.1 an d 15.1 that has been developed in the Appellate 
Body's relevant jurisprudence. 
4.6.1  Article 3.2 of the Anti-Dumping Agr eement and Article 15.2 of the SCM Agreement 
4.6.1.1  Interpretation of Article 3.2 of th e Anti-Dumping Agreement and Article 15.2 of 
the SCM Agreement  
China claimed on appeal that the Panel erred in its interpretation and application of Article 3.2 of 
the Anti-Dumping Agreement and Article 15.2 of th e SCM Agreement. With regard to the Panel's 
interpretation of Articles 3.2 and 15.2, China argued  that the Panel erred in interpreting the phrase 
"the effect of" in these provisions to mean that an investigating authority must demonstrate that adverse price effects were caused by dumped and/or subsidized imports. China maintained that 
Articles 3.2 and 15.2 impose a "limited obligation", whereby investigating authorities need only 
"consider" the price effects listed therein, but need not demonstrate a causal link between the 
subject imports and the adverse price effects on the domestic industry. Thus, the Panel 
erroneously incorporated the stricter standard of causation provided under Article 3.5 of the Anti-
Dumping Agreement and Article 15.5 of the SC M Agreement into Articles 3.2 and 15.2, 
respectively. In so finding, China argued, the Panel failed to conduct a proper analysis of the text 
of Articles 3.2 and 15.2, in particular, the terms "consider" and "effect". The Panel also ignored 
relevant context in failing to distinguish the terms of Articles 3.2 and 15.2 from the terms 
"demonstrated" and "causal relationship" found in  Article 3.5 of the Anti-Dumping Agreement and 
Article 15.5 of the SCM Agreement. 
The Appellate Body began by noting that the paragraphs of Article 3 of the Anti-Dumping 
Agreement and Article 15 of the SCM Agreement stip ulate, in detail, an investigating authority's 
obligations in determining the injury to the domestic industry allegedly caused by subject imports. 
These provisions contemplate a logical progression of inquiry leading to an investigating 
authority's ultimate injury and causation determination. The Appellate Body further noted that, pursuant to Articles 3.5 and 15.5, it must be demonstrated that dumped or subsidized imports are causing injury to the domestic industry " through  the effects of" dumping or subsidies "[a]s set 
forth in paragraphs 2 and 4". Thus, the outcome of the inquiries set forth in Articles 3.2 and 15.2, 
and in Articles 3.4 and 15.4, form the basis for the overall causation determination contemplated in Articles 3.5 and 15.5. In the Appellate Body's view, the interpretation of Articles 3.2 and 15.2 
should be consistent with the role these provisions play in the overall framework of an injury 
determination under Articles 3 and 15. 
The Appellate Body found that the obligation to "consider" the effect of subject imports on 
domestic prices under Articles 3.2 and 15.2 does not require an authority to reach a definitive 
determination. Nonetheless, this does not alter th e subject matter of an authority's consideration, 
such as significant price depression or suppression, or the fact that the authority's consideration must be based on positive evidence and involve an  objective examination pursuant to Articles 3.1 
and 15.1, and must be reflected in the relevant documentation produced by the authority in the 
investigation. With regard to an authority's consideration of significant price depression and suppression under the second sentence of Articles  3.2 and 15.2, the Appellate Body disagreed with 
China's argument that Articles 3.2 and 15.2 do not use language that suggests the need to 
establish a link between subject imports and domest ic prices. The Appellate Body found that, by WT/AB/18 
 
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  asking the question "whether the effect of" subject imports is to depress or suppress domestic 
prices to a significant degree, the language of Arti cles 3.2 and 15.2 expressly links significant price 
depression and suppression with subject imports, an d contemplates an inquiry into the relationship 
between two variables, namely, subject imports and domestic prices. More specifically, an 
investigating authority is required to consider whether a first variable – that is, subject imports – 
has explanatory force for the occurrence of sign ificant depression or suppression of a second 
variable – that is, domestic prices. Thus, it is  not sufficient for an investigating authority to confine 
its consideration to what is happening to domestic prices for purposes of considering whether 
significant price depression or suppression occurs. The Appellate Body further considered that this interpretation is reinforced by the very concepts  of price depression and price suppression, which 
implicate an analysis concerning the question of what brings about such price phenomena. 
The Appellate Body found that the outcome of the inquiry under Articles 3.2 and 15.2, as to 
whether subject imports have explanatory force fo r the occurrence of significant price depression 
and suppression, will enable the authority to advance its analysis, and to have a meaningful basis 
for its determination under Articles 3.5 and 15.5 regarding whether subject imports, through such 
price effects, are causing injury to the domestic industry. The Appellate Body found that, contrary to China's contention, interpreting Articles 3.2 and 15.2 as requiring a consideration of the 
relationship between subject imports and domestic prices does not result in duplicating the 
causation analysis under Articles 3.5 and 15.5. The examination under Articles 3.5 and 15.5 encompasses "all relevant evidence" before the authority, including the volume of subject imports and their price effects listed under Articles 3.2 and 15.2, as well as all relevant economic factors 
concerning the state of the domestic industry liste d in Articles 3.4 and 15.4. Thus, the examination 
under Articles 3.5 and 15.5, by definition, covers  a broader scope than the scope of the elements 
considered in relation to significant price depres sion and suppression under Articles 3.2 and 15.2. 
Moreover, the Appellate Body highlighted that Arti cles 3.2 and 15.2 do not require an authority to 
conduct an exhaustive and fully fledged non-attribution analysis regarding all possible factors that may also be causing injury to the domestic industry. Rather, the investigating authority's inquiry 
under Articles 3.2 and 15.2 is focused on the relationship between subject imports and domestic 
prices, and the authority may not disregard evidence relating to other elements that calls into question the explanatory force of the former for si gnificant depression or suppression of the latter. 
On this basis, the Appellate Body rejected Ch ina's interpretation that Article 3.2 of the 
Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement merely require an investigating 
authority to consider the existence of price de pression or suppression, and do not require the 
consideration of any link between subject imports and these price effects. 
Turning to the errors appealed by China regard ing the Panel's interpretation of Articles 3.2 
and 15.2, the Appellate Body noted that, although the Panel stated that an authority "must also 
show" or "demonstrate" that significant price de pression and suppression were the effect of 
subject imports, the Panel's use of the words "s how" and "demonstrate" was ambiguous. To the 
extent the Panel used these words to mean that an authority is required to make a definitive determination, the Panel's use of these words was not consistent with a proper understanding of the word "consider" in Articles 3.2 and 15.2. However, to the extent the Panel used the words 
"show" and "demonstrate" to mean that the auth ority's consideration of price effects must be 
reflected in relevant documentation produced by the authority in its investigation, and must be based on positive evidence and involve an objective examination, this was consistent with a proper 
interpretation of these provisions. In any event,  the Appellate Body agreed with the Panel that, 
because Articles 3.2 and 15.2 require an investigating authority to consider whether the effect of  
subject imports is to depress prices of like domestic products to a significant degree, merely 
showing the existence of significant price depr ession does not suffice for the purposes of 
Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement. The 
Appellate Body further noted that the Panel's interpretation was largely a restatement of what is expressly required under Articles 3.2 and 15.2. Although the Appellate Body considered that a 
mere restatement did not do justice to the in terpretative question before the Panel, the 
Appellate Body was not persuaded by China's ar gument that the Panel's interpretation of 
Articles 3.2 and 15.2 "duplicate[d]" the obligations regarding the causation analysis between 
subject imports and injury to the domestic in dustry pursuant to Articles 3.5 and 15.5. 
Furthermore, the Appellate Body was not persuaded by China's contention that the Panel 
misconstrued the guidance provided by the panel report in EC – Countervailing Measures on DRAM 
Chips . In the Appellate Body's view, the panel report in that dispute did not stand for the 
proposition that an investigating authority is not required by Article 15.2 of the SCM Agreement to WT/AB/18 
 
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  consider whether significant price depression or suppr ession is an effect of subject imports. Finally, 
the Appellate Body rejected China's argument that the Panel interpreted Articles 3.2 and 15.2 as imposing an obligation on MOFCOM to make a determination that "the only reason" for price suppression was subject imports, and that this e rror was revealed by the Panel's examination of 
MOFCOM's finding of significant price suppressi on. Rather, the Appellate Body found that the 
Panel's examination in this respect was directed at MOFCOM's failure to consider whether the evidence relating to the domestic industry's cost structure may have called into question the 
explanatory force of subject imports for the significant suppression of domestic prices. 
For all these reasons, the Appellate Body found  that the Panel did not err in not adopting 
China's interpretation of Articles 3.2 and 15.2.  
4.6.1.2  Application of Article 3.2 of the An ti-Dumping Agreement and Article 15.2 of the 
SCM Agreement and China's claims under Article 11 of the DSU  
China appealed the Panel's application of Article 3.2 of the Anti-Dumping Agreement and 
Article 15.2 of the SCM Agreement. China argued that the Panel erred by misunderstanding what 
"low price" meant in MOFCOM's Final Determination, and in determining that MOFCOM relied on 
that factor in reaching its finding of significant price depression and suppression. China maintained that, contrary to the view adopted by the Panel,  MOFCOM never compared subject import prices 
with domestic prices, and MOFCOM's price effects discussion did not focus on the existence of price 
undercutting and did not depend on price comparability. In the alternative, China argued that, even if MOFCOM conducted and relied upon price comparisons showing price undercutting for its price effects finding, the Panel nevertheless erred in finding that MOFCOM should have made 
certain adjustments to ensure price comparability. China asserted that such adjustments are not 
required by Articles 3.2 and 15.2, and that, even  if they were, they were not necessary in the 
circumstances of this case. This was particularly so because concerns regarding price comparability 
were neither raised nor developed by the respon dents during the investigation. China further 
argued that, in evaluating MOFCOM's price effects analysis, the Panel improperly focused on the "low price" factor, and failed to give proper regard to other factors relied upon by MOFCOM, 
consisting of a pricing policy aimed at price undercutting, parallel price trends between subject 
import and domestic prices, and increases in the volume of subject imports. 
China also claimed that the Panel, in its assessment of MOFCOM's price effects analysis, failed to 
make an objective assessment as required by Article 11 of the DSU. China argued that the Panel 
mischaracterized a fact that was fundamental and ultimately determinative to its analysis by 
equating the reference to "low price" in MOFCOM's Final Determination with the existence of price undercutting by subject imports. Moreover, China ar gued that the Panel erred by relying on this 
single factor to invalidate MOFCOM's finding of  significant price depression and suppression, and 
thus failed to take into account "the totality of the circumstances that produced the conclusion of price depression and price suppression". 
The Appellate Body observed that China, in challenging the Panel's understanding of MOFCOM's 
price effects analysis in its Final Determination, asserted claims that the Panel erred both in its application of Articles 3.2 and 15.2, and in its duty to make an objective assessment of the facts under Article 11 of the DSU. The Appellate Body considered that, although there were arguably 
features of the Panel's analysis on appeal that concerned facts that were before MOFCOM and 
before the Panel itself, the Appellate Body understood China's appeal to address the manner in which the Panel examined and applied Article 3.2 of the Anti-Dumping Agreement and Article 15.2 
of the SCM Agreement, read together with Ar ticle 3.1 of the Anti-Dumping Agreement and 
Article 15.1 of the SCM Agreement, to MOFCOM's Final Determination. The Appellate Body further 
considered that, when the Panel examined th e question of whether MOFCOM relied on the 
existence of price undercutting in the period 2006 to 2008 to find significant price depression and 
suppression, it was examining whether MOFCOM's Final Determination complied with the legal standard for a price effects analysis conducted on the basis of "positive evidence" and involving an "objective examination". In order to give proper consideration to the Panel's analysis and to 
China's appeal, the Appellate Body therefore exam ined this issue in the light of the Panel's 
application of the legal standard under Articles 3.2 and 15.2, read together with Articles 3.1 and 15.1, to MOFCOM's Final Determination, and not under Article 11 of the DSU. 
With regard to China's contention that the Panel misstated MOFCOM's discussion of "low price", the 
Appellate Body considered that the Panel was corre ct to conclude that, although MOFCOM did not WT/AB/18 
 
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  make a finding of significant price undercutting, MOFC OM's finding as to the "low price" of subject 
imports referred to the existence of price under cutting between 2006 and 2008, and that MOFCOM 
relied on this factor to support its finding of si gnificant price depression and suppression. In this 
regard, the Appellate Body highlighted that when the Panel found that China had "conceded" that 
MOFCOM relied on the existence of price undercutti ng from 2006 to 2008 to support its finding of 
significant price depression and suppression, that finding was reached on the basis of 
representations made by China to the Panel that  MOFCOM had had an evidentiary basis in the 
investigation record for its conclusion. The Appellate Body thus concluded that, in the absence of 
an explanation from China as to why its statements before the Panel were no longer to be relied upon, it was proper for the Panel to have concluded on the basis of those statements that MOFCOM relied on evidence of price undercutting to support its finding that subject imports were 
kept at a "low price". 
The Appellate Body addressed China's alternative argument that, even if MOFCOM conducted and 
relied upon price comparisons and the existence of price undercutting from 2006 to 2008, the 
Panel nevertheless erred by mandating the us e of certain adjustments to ensure price 
comparability that are not required by Articles 3.2 and 15.2. The Appellate Body considered that, although there is no explicit requirement of price comparability in Articles 3.2 and 15.2, it did not 
see how a failure to ensure price comparability could be consistent with the requirement under 
Articles 3.1 and 15.1 that a determination of injury  be based on "positive evidence" and involve an 
"objective examination". Thus, the Appellate Body saw no reason to disagree with the Panel's statement that "[a]s soon as price comparisons are made, price comparability necessarily arises as 
an issue." The Appellate Body also rejected China's contention that price comparability was not 
required because concerns regarding price comparability were neither raised nor developed by the respondents during the investigation. In this rega rd, the Appellate Body did not consider that the 
question of whether price adjustments are needed to ensure price comparability is to be 
determined by whether a respondent objects to the use of unadjusted prices. According to the 
Appellate Body, authorities remain bound by their overarching obligation to conduct an objective 
examination on the basis of positive evidence, ir respective of how the issues were presented or 
argued during the investigation. 
With regard to China's contention that the Panel misconceived the role of a pricing policy aimed at 
undercutting domestic prices, the Appellate Body recalled the Panel's finding that the existence of 
a pricing policy was "undermined" by the fact that there was no price undercutting during the first 
quarter of 2009. The Appellate Body considered, however, that, even in the absence of price 
undercutting, a policy that aims to undercut a competitor's prices may still be relevant to an 
examination of its price depressive or suppressi ve effects in instances where, for example, 
domestic producers were reacting to subject import competition by lowering domestic prices. The Appellate Body therefore considered that it was not appropriate for the Panel to have dismissed 
the pricing policy on the grounds that it did beca use it failed to consider whether, even in the 
absence of actual price undercutting, MOFCOM could have concluded that the policy had the effect of depressing or suppressing domestic prices.  
With regard to China's contention that the Panel ignored the role of parallel price trends in 
MOFCOM's price effects analysis, the Appellate Body considered that, although MOFCOM's Final 
Determination referred to the fact that subject import and domestic prices first went up and then down over the period of investigation, no explanation or reasoning was provided by MOFCOM in its 
Final Determination, or by China before the Panel on the basis of the Final Determination, as to 
how these trends contributed to the price depres sive and suppressive effects of subject import 
prices. Thus, in the absence of sufficient reasoning in MOFCOM's Final Determination, or an 
elucidation of the Final Determination by China, as to what explanatory force the price trends had 
for the depression or suppression of domestic prices, the Appellate Body saw no basis to fault the Panel for failing to recognize or discuss the significance of these trends for MOFCOM's analysis.  
Finally, the Appellate Body addressed China's argu ment that the Panel erred by dismissing and 
giving no weight to the effect of the volume of subject imports as expressed in MOFCOM's Final 
Determination. The Appellate Body noted that there was no disagreement between the participants that MOFCOM's finding of significant price depressi on and suppression rested on an examination of 
the effect of both the prices and volume of subj ect imports on domestic prices. The Appellate Body 
considered that, in circumstances where an investigating authority relies on both prices and volume of subject imports, a panel must allow for the possibility that either prices or volume was 
sufficient by itself to sustain a finding. Thus, the Appellate Body did not consider that the focus of WT/AB/18 
 
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  the Panel's inquiry should have been on whether the effects of either volume or prices of subject 
imports was the primary basis for MOFCOM's price effects finding. The Appellate Body explained, however, that, while MOFCOM's Final Determination referred to both the prices and volume of subject imports, it did not indicate how these two factors may have interacted, or whether the 
effect of either prices or volume alone could ha ve sustained MOFCOM's finding of significant price 
depression or suppression. Without further ex planation or reasoning in MOFCOM's Final 
Determination regarding the manner in which the effects of the prices and volume of subject 
imports operated either independently or together  to depress domestic prices, the Appellate Body 
understood the Panel to have concluded that it was itself unable to disentangle the relative contribution of these effects in MOFCOM's Final Determination without substituting its judgement 
for that of the authority. Thus, the Appellate Body agreed with the Panel that it was "not possible 
to conclude that MOFCOM's finding that price depression was an effect of subject imports might be 
upheld purely on the basis of MOFCOM's findings regarding the effect of the increase in the volume of subject imports." 
The Appellate Body then conducted an overall assessment of China's appeal of the Panel's 
application of Articles 3.2 and 15.2. Having reviewed China's arguments regarding the "low price" of subject imports, and the AUV data on which it relied, the Appellate Body considered that it was 
proper for the Panel to conclude that "MOFCOM's reliance on AUVs, without any consideration of 
the need for adjustments to ensure price comparability, [was] neither objective, nor based on positive evidence", and that this affirmed the Panel's ultimate finding of inconsistency on these grounds under Articles 3.1 and 3.2 of the Anti-D umping Agreement and Articles 15.1 and 15.2 of 
the SCM Agreement. The Appellate Body further no ted that, notwithstanding its disagreement with 
the Panel's treatment of the policy aimed at undercutting domestic prices, that factor was, even under China's argument, only one of several factors on which MOFCOM relied to determine the 
effect of subject import prices on domestic prices. Accordingly, without a foundation to conclude 
that MOFCOM's analysis of the effect of subject import prices could have been sustained on the 
basis of the pricing policy alone, the Appellate Bo dy could not conclude that rejecting the Panel's 
analysis of this pricing policy would lead to a reversal of the Panel's ultimate finding of 
inconsistency under Articles 3.1 and 3.2 of the Anti-Dumping Agreement and Articles 15.1 and 15.2 of the SCM Agreement. Finally, the A ppellate Body noted the Panel's scepticism that, 
following several years of increases in subject import prices, including an increase by 17.57% in 
2008, a 1.25% decrease in those prices in the first quarter of 2009 could have had the effect of 
depressing domestic prices by 30.25% during that same quarter. The Appellate Body further noted that the thrust of this critique was broader in the sense that, whether the contributing factors were 
argued to be parallel pricing trends, a policy ai med at undercutting domestic prices, and/or a 
1.25% decrease in the price of subject imports in the first quarter of 2009, it was nevertheless anomalous that, in the only period for which domestic prices actually went down, there was 
substantial divergence between the extent of the price decrease for subject imports versus that for 
domestic products. The Appellate Body considered that this pricing dynamic called into question 
whether the prices of subject imports adequately  explained the depression or suppression of 
domestic prices. For the foregoing reasons, the Appellate Body found that the Panel did 
not err in its application of Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of 
the SCM Agreement, read together with Arti cle 3.1 of the Anti-Dumping Agreement and 
Article 15.1 of the SCM Agreement.   
The Appellate Body also conducted an overall assessment of China's claims under Article 11 of the 
DSU. The Appellate Body recalled its conclusion that, although China claimed that the Panel's treatment of MOFCOM's "low price" discussion cons tituted both an error in the Panel's application 
of the legal standard, and in its duty to make an objective assessment of the facts under Article 11 
of the DSU, the Appellate Body examined that issue in the light of the Panel's application of the legal standard to MOFCOM's Final Determination. The Appellate Body further noted that China's claim regarding the Panel's application of its standard of review also rested on China's contention 
that the Panel relied on the "low price" of subj ect imports in the form of price undercutting, and 
disregarded the totality of factors that formed the basis for MOFCOM's finding of significant price depression and suppression. The Appellate Body recalled its examination of the Panel's 
consideration of these factors and its finding that the Panel did not err in its application of 
Articles 3.2 and 15.2, read together with Articl es 3.1 and 15.1. The Appellate Body considered 
that, given the particular focus of China's claims in this case, the examination and disposition of 
China's application claim also resolved China's claim that the Panel did not apply a proper standard 
of review under Article 11 of the DSU. The Appellate Body therefore found that the Panel did WT/AB/18 
 
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  not act inconsistently with its duty to make  an objective assessment under Article 11 of 
the DSU.  
4.6.2  Article 6.9 of the Anti-Dumping Agr eement and Article 12.8 of the SCM Agreement 
China challenged the Panel's finding that MOFCOM failed to disclose the essential facts underlying 
its finding of "low price" of subject imports in relation to its price effects analysis. China argued 
that MOFCOM adequately disclosed, pursuant to Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the SCM Agreement, the essential fa cts regarding the existence of significant price 
depression and suppression. China submitted that, contrary to the Panel's view, the essential facts 
for price depression and suppression need not include any facts about the comparison of domestic prices to subject import prices, or the causal relationship between these two variables.  
The Appellate Body found that the term "essentia l facts" under Article 6.9 of the Anti-Dumping 
Agreement and Article 12.8 of the SCM Agreement refe rs to "those facts that are significant in the 
process or reaching a decision as to whether or not to apply definitive measures." Such facts, according to the Appellate Body, are those that are salient for a decision to apply definitive 
measures, as well as those that are salient for a contrary outcome. The Appellate Body considered 
that an authority must disclose such facts, in a coherent way, so as to permit an interested party to understand the basis for the decision whether or not to apply definitive measures. Moreover, 
the Appellate Body considered that what constitutes an "essential fact" must be understood in the 
light of the content of the authority's findings needed to satisfy the substantive obligations with respect to the application of definitive meas ures under the Anti-Dumping Agreement and the 
SCM Agreement, as well as the factual circumstance s of each case. Hence, in the context of a price 
effects analysis under Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the 
SCM Agreement, the essential facts that investigat ing authorities need to disclose are those that 
are required to understand the basis for their price effects consideration, leading to the decision 
whether or not to apply definitive measures, so th at interested parties can defend their interests. 
The Appellate Body recalled its finding, in the context of China's claim under Article 3.2 of the 
Anti-Dumping Agreement and Article 15.2 of the SCM Agreement, that the Panel was correct to 
conclude that, although MOFCOM did not make  a finding of significant price undercutting, 
M O F C O M ' s  f i n d i n g  a s  t o  t h e  " l o w  p r i c e "  o f  subject imports referred to the existence of 
price undercutting between 2006 and 2008, and that MO FCOM relied on this factor to support its 
finding of significant price depression and suppre ssion. Thus, the Appellate Body found that, in the 
context of this aspect of MOFCOM's reasoning, the essential facts included those facts underlying 
the existence of price undercutting that would have allowed for an understanding of this element of MOFCOM's finding of significant price depressi on and suppression. The Appellate Body noted the 
Panel's finding that MOFCOM's preliminary determination and its final injury disclosure document 
only stated that subject imports were at a "low price", without providing facts relating to the price comparisons of subject imports and domestic products. The Appellate Body considered that these 
facts substantiated the existence of price undercutting, and constituted "essential facts" that 
should have been disclosed to all interested parties. The Appellate Body rejected China's argument that disclosing further details would have compromised business confidential information, and agreed with the Panel that, when confidential information constitutes "essential facts" within the 
meaning of Articles 6.9 and 12.8, the disclosure obligations under these provisions should be met 
by disclosing non-confidential summaries of those facts. Furthermore, the Appellate Body saw no 
error in the Panel's statement that "[i]n order to allow the respondents to defend their interests, a 
summary of the 'essential facts' supporting the finding of a 'low price strategy' was required, 
rather than merely stating the conclusion that such a strategy existed." On this basis, the 
Appellate Body upheld the Panel's findin g that China acted inconsistently with 
Article 6.9 of the Anti-Dumping Agreemen t and Article 12.8 of the SCM Agreement.  
4.6.3  Article 12.2.2 of the Anti-Dumpi ng Agreement and Article 22.5 of the 
SCM Agreement 
China's claim under Article 12.2.2 of the Anti-D umping Agreement and Article 22.5 of the SCM 
Agreement concerned the requirement that a public notice contain "all relevant information" on 
"matters of fact" "which have led to the imposition  of final measures". China challenged the Panel's 
finding that MOFCOM failed adequately to disclose "all relevant information on the matters of fact" 
underlying MOFCOM's conclusion regarding the "low price" of subject imports, as required by 
Article 12.2.2 of the Anti-Dumping Agreement an d Article 22.5 of the SCM Agreement. In this WT/AB/18 
 
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  respect, China argued that MOFCOM adequately provided public notice of its finding of significant 
price depression and suppression, which, contrary to the Panel's view, does not require a causal relationship between subject imports and these ad verse price effects. Moreover, China highlighted 
that the Panel wrongly focused on the existenc e and magnitude of price undercutting, thereby 
making a comparison of subject import prices to domestic prices "essential elements" and "an 
important aspect" of MOFCOM's price effects examination. 
In interpreting Articles 12.2.2 and 22.5, the Appe llate Body considered that these provisions do 
not require authorities to disclose all the factual information that is before them, but rather those 
facts that allow an understanding  of the factual basis that led to the imposition of final measures. 
Thus, the inclusion of this information should give a reasoned account of the factual support for an authority's decision to impose final measures. The Appellate Body noted that the imposition of final 
anti-dumping or countervailing duties requires an authority to find dumping or subsidization, 
injury, and a causal link between these elements. What constitutes "relevant information on the matters of fact" is therefore to be understood in th e light of the content of the findings needed to 
satisfy the substantive requirements with respect to the imposition of final measures under the 
Anti-Dumping Agreement and the SCM Agreement, as well as the factual circumstances of each 
case. Moreover, the Appellate Body noted that the facts that an investigating authority may 
consider material to its determinations within the meaning of Article 12.2 of the Anti-Dumping 
Agreement and Article 22.3 of the SCM Agreemen t are circumscribed by the framework of the 
substantive provisions of these Agreements. Finally, the Appellate Body considered that, in the context of a price effects analysis under Article 3.2 of the Anti-Dumping Agreement  and 
Article 15.2 of the SCM Agreement, "all relevant information on the matters of fact" consists of 
those facts that are required to understand an investigating authority's price effects examination leading to the imposition of final measures. 
The Appellate Body recalled its finding, in the context of China's claim under Article 3.2 of the Anti-
Dumping Agreement and Article 15.2 of the SCM Agreement, that the Panel was correct to 
conclude that, although MOFCOM did not make  a finding of significant price undercutting, 
M O F C O M ' s  f i n d i n g  a s  t o  t h e  " l o w  p r i c e "  o f  s u bject imports referred to the existence of price 
undercutting between 2006 and 2008, and that MOFCOM  relied on this factor to support its finding 
of significant price depression and suppression. Thus, MOFCOM was required to disclose "all the 
relevant information on the matters of fact" relating to the "low price" of subject imports on which 
it relied for its finding of significant price depressi on and suppression. Therefore, in addition to the 
finding in its Final Determination that subject imports were at a "low price", MOFCOM was also required to disclose the facts relating to price undercutting that were required to understand that 
finding. The Appellate Body considered that these facts constituted "relevant information on the 
matters of fact" within the meaning of Articles 12.2.2 and 22.5, which should have been disclosed 
in the Final Determination. The Appellate Body rejected China's arguments that the Panel erred in 
considering a comparison of subject import prices to domestic prices "essential elements" and "an 
important aspect" of MOFCOM's Final Determination, because China's arguments were premised on its contention that MOFCOM did not rely on the existence of price undercutting for its finding of significant price depression and suppression. On this basis, the Appellate Body upheld the 
Panel's finding that China acted inconsistent ly with Article 12.2.2 of the Anti-Dumping 
Agreement  and Article 22.5 of the SCM Agreement.  
5  PARTICIPANTS AND THIRD PARTICIPANTS IN APPEALS 
Table 5 lists the WTO Members that participated in  appeals for which an Appellate Body report was 
circulated in 2012. It distinguishes between a Member that filed a Notice of Appeal pursuant to Rule 20 of the Working Procedures  and a Member that filed a Notice of Other Appeal pursuant to 
Rule 23(1) (known as the "other appellant"). Rule 23(1) provides that "a party to the dispute other 
than the original appellant may join in that appeal, or appeal on the basis of other alleged errors in the issues of law covered in the panel report an d legal interpretations developed by the panel". 
Under the Working Procedures, parties wishing to appeal a panel report pursuant to Rule 23(1) are 
required to file a Notice of Ot her Appeal within 5 days of the filing of the Notice of Appeal. 
Table 5 also identifies those Members that participated in appeals as third participants under 
paragraphs (1), (2), or (4) of Rule 24 of the Working Procedures. Under Rule 24(1), a 
WTO Member that was a third party to the panel proceedings may file a written submission as a 
third participant within 21 days of the filing of the Notice of Appeal. Pursuant to Rule 24(2), a Member that was a third party to the panel proceedings that has not filed a written submission WT/AB/18 
 
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  may, within 21 days of the filing of the Notice of Appeal, notify its intention to appear at the oral 
hearing and whether it intends to make a statement at the hearing. Rule 24(4) provides that a Member that was a third party to the panel proceedings and has neither filed a written submission in accordance with Rule 24(1), nor given notice in accordance with Rule 24(2), may notify its 
intention to appear at the oral hearing and request to make a statement. 
Table 5:  Participants and third participan ts in appeals for which an Appellate Body 
report was circulated in 2012 
Case Appellanta Other 
appellantb Appellee(s)c Third participants 
Rule 
24(1) Rule 
24(2) Rule 
24(4) 
China –  Raw 
Materials (United States) China United States 
 United 
States 
China Brazil 
Canada 
Colombia 
Japan 
Korea 
Saudi 
Arabia 
Turkey Argentina 
Chile 
Ecuador 
India 
Norway 
 Chinese 
Taipei 
China –  Raw 
Materials (European 
Union) China European 
Union European 
Union 
China Brazil 
Canada 
Colombia 
Japan 
Korea 
Saudi 
Arabia 
Turkey Argentina 
Chile 
Ecuador 
India 
Norway 
 Chinese 
Taipei 
China –  Raw 
Materials (Mexico) China Mexico Mexico 
China Brazil 
Canada 
Colombia 
Japan 
Korea 
Saudi 
Arabia 
Turkey Argentina 
Chile 
Ecuador 
India 
Norway 
 Chinese 
Taipei 
US – Large Civil 
Aircraft 
(2nd complaint) European 
Union United States United 
States 
European 
Union Australia 
Brazil 
Canada 
China 
Japan 
Korea   
US – Clove Cigarettes United 
States  Indonesia Brazil 
Colombia 
European 
Union 
Mexico 
Norway 
Turkey Dominican 
Republic 
Guatemala  WT/AB/18 
 
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  Case Appellanta Other 
appellantb Appellee(s)c Third participants 
Rule 
24(1) Rule 
24(2) Rule 
24(4) 
US – Tuna II 
(Mexico) United 
States Mexico  Mexico 
United 
States Australia 
Brazil 
 Canada 
European 
Union 
Japan 
New 
Zealand  Argentina 
China 
Ecuador 
Guatemala 
Korea 
Turkey  Thailand 
Chinese 
Taipei 
US – COOL 
(Canada) United 
States Canada Canada 
United 
States 
 Australia 
Brazil 
Colombia 
European 
Union 
Japan Argentina 
China 
Guatemala 
Korea 
New 
Zealand 
Peru 
Chinese 
Taipei  India 
US – COOL 
(Mexico) United 
States Mexico Mexico 
United 
States 
 Australia 
Brazil 
Colombia 
European 
Union 
Japan Argentina 
China 
Guatemala 
Korea 
New 
Zealand 
Peru 
Chinese 
Taipei India 
China – GOES China  United 
States European 
Union 
Japan 
Korea 
Saudi 
Arabia  Argentina 
Honduras 
India 
Viet Nam 
a Pursuant to Rule 20 of the Working Procedures. 
b Pursuant to Rule 23(1) of the Working Procedures. 
c Pursuant to Rule 22 or 23(3) of the Working Procedures. 
 
 
A total of 26 WTO Members appeared at least once as appellant, other appellant, appellee, or third participant in appeals for which an Appellate Body report was circulated in 2012. Of these 26 WTO 
Members, 7 were developed country Members, and 19 were developing country Members. 
Chart 3 shows the ratio of developed country Members to developing country Members in terms of 
appearances made as appellant, other appellant, appellee, and third participant in appeals for 
which an Appellate Body report was circulated from 1996 through 2012. 
 WT/AB/18 
 
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  Chart 3:  WTO Member part icipation in appeals 1996-2012 
 
 
 
Annex 6 provides a statistical summary and details on WTO Members' participation as appellant, other appellant, appellee, and third participant in appeals for which an Appellate Body report was 
circulated from 1996 through 2012. 
6  WORKING PROCEDURES FOR APPELLATE REVIEW 6.1  Procedural issues arising from appeals 
6.1.1  Treatment of sensitive information 
In US – Large Civil Aircraft (2
nd complaint) , the Appellate Body received a request from the 
European Union that the Appellate Body adopt additional procedures to protect BCI and HSBI in these appellate proceedings.
35 The European Union explained that the reasons for this request 
were substantially the same as the reasons given by the participants in EC and certain member 
States – Large Civil Aircraft , namely, that disclosure of confiden tial information could be "severely 
prejudicial" to the originators of the information, that is, to the manufacturers of LCA, as well as 
their customers and suppliers.36 The European Union requested the adoption of a procedural ruling 
with substantially the same terms as the one adopted by the Appellate Body in EC and certain 
member States – Large Civil Aircraft . The Appellate Body Division then invited the United States 
and the third parties to comment in writing on the European Union's request, and informed the 
participants and third parties of its decision to adopt temporary precautions to protect confidential information. Given that the Panel record was, in accordance with Rule 25 of the Working Procedures , to be transmitted to the Appellate Body immediately upon the filing of a Notice of 
Appeal, the Division decided to provide additional protection to all BCI and HSBI transmitted to the 
Appellate Body as part of that record, pending it s final decision on the European Union's request. 
Written comments were received from the United States, and Australia, Brazil, Canada, China, and 
Japan. The United States shared the European Union's view that it was necessary for the Division 
to adopt BCI/HSBI procedures in this appeal. Overall, the United States agreed that the Appellate Body procedural ruling in EC and certain member States – Large Civil Aircraft  would serve as an 
appropriate basis for a procedural ruling on the protection of sensitive information in this appeal, 
with certain modifications made in the light of the previous experience. The third participants expressed their support for, or did not oppose, th e request of the European Union, and suggested 
certain modifications to the proposed procedures in order to ensure that the rights of  
                                               
35 Previously, on 23 March 2011, the European Union had sent a letter to the Director of the Appellate 
Body Secretariat suggesting, in the event of an appeal of the Panel Report in this dispute, the adoption of 
additional procedures concerning the treatment of BCI and HSBI in the appellate proceedings. 
36 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 17. WT/AB/18 
 
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  third participants to participate meaningfully in these appellate proceedings would be fully 
protected. Subsequently, the Division issued a Procedural Ruling adopting Additional Procedures to Protect Sensitive Information (the "Additional Procedures"), pursuant to Rule 16(1) of the Working Procedures.
37 
Pursuant to paragraph 19(xiv) of the Additional Procedures, the participants each provided a list of 
persons designated as "BCI-Approved Persons"  and persons designated as "HSBI-Approved 
Persons". In accordance with paragraph 19(xvi) of the Additional Procedures, the third participants 
each provided a list of up to eight individual s designated as "Third Participant BCI-Approved 
Persons". Requests to change the BCI/HSBI Approved Persons and Third Participants BCI-
Approved Persons lists were subsequently submit ted by the European Union, the United States, 
Australia, Brazil, Canada, and Korea. The Division provided the participants and third participants 
with the opportunity to comment on each reques t .  N o  o b j e c t i o n s  w e r e  m a d e  a n d  a l l  o f  t h e  
requests were authorized by the Division. 
Pursuant to paragraph 19(xiii) of the Procedural Ruling, the Division informed the participants and 
third participants that it had found it necessary to include in the Appellate Body Report some 
references to information that was treated by the Panel as BCI or HSBI. Also pursuant to paragraph 19(xiii) of the Procedural Ruling, an advance copy of the Appellate Body Report was 
provided to the European Union and the United States. Both participants were requested to 
indicate whether there was a continuing need to treat all of the business sensitive information in the same manner as the Panel or whether such protection could be removed, and if so, for which pieces of information, and whether any BCI or HSBI had been included in the Appellate Body 
Report without having been identified as such. The European Union indicated that it had not 
identified any BCI or HSBI that was not designated  as such in the Appellate Body Report, and that 
it was willing to remove BCI protection with resp ect to two sentences consisting of EU BCI. The 
United States identified one instance in which it considered that BCI had been inadvertently 
disclosed, and indicated that the relevant text should be designated as BCI, or revised so as to avoid the need for BCI protection. The United St ates also identified a number of instances, 
consisting of US BCI or EU BCI, for which it su ggested, or did not object to, the removal of BCI 
protection. The Division requested the participan ts to respond to each other's comments. The 
European Union indicated that it had no objection to the United States' proposal to remove BCI protection for information that related to the United States' interests, but objected to doing so with 
respect to such information relating to the European Union's interests. The United States stated 
that it had no objection to the removal of BCI protection for the two sentences identified by the European Union. The Division modified the one inadvertent disclosure of BCI information, as 
suggested by the United States, so as to avoid th e need for BCI protection. The Division decided to 
remove BCI protection in certain instances in which the participants suggested, or did not object to, such removal. 
In the panel proceedings in US – COOL , the Panel adopted additional working procedures for the 
protection of BCI.
38 None of the participants requested th e Appellate Body to adopt additional 
procedures for the protection of sensitive in these appellate proceedings, and the Appellate Body did not do so in this appeal.
39 
6.1.2  Amendments to the official Working Schedule 
Upon receipt of the European Union's request for additional procedures for the protection of 
sensitive information in US – Large Civil Aircraft (2nd complaint) , the Division decided to suspend 
the deadlines that would otherwise apply under the Working Procedures for the filing of a Notice of 
Other Appeal and for the filing of written submi ssions. After issuing its Procedural Ruling, the 
Division provided the participants and third participants the deadlines for filing written 
submissions,  pursuant to Rule 26 of the Working Procedures. 
                                               
37 The Procedural Ruling and Additional Procedures are contained in Annex III of the Appellate Body 
Report in US – Large Civil Aircraft (2nd complaint) . 
38 See Panel Report, US – COOL , para. 2.4 and Annex E. 
39 Appellate Body Report, US – COOL , footnote 57 to para. 12. WT/AB/18 
 
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  In China – Raw Materials , the Division received a joint request from the other appellants – the 
European Union, Mexico, and the United States – for a limited extension of certain time periods for filing submissions in these proceedings. More specifically, the complainants requested the Division to extend the time period for filing the Notices of Other Appeal, other appellants' submissions, and 
appellees' submissions.  
Before making a ruling on this matter, the Division solicited the views of China and the third 
participants. China requested the Appellate Body not to grant additional time for the filing of the 
submissions in this case, because it believed that it would itself be prejudiced if the Appellate Body 
were to extend the deadlines as it would not have sufficient time to prepare its own written responses. The Division also received written comments from Japan and Saudi Arabia. These third 
participants had no objection to the joint request of the complainants. However, Japan and 
Saudi Arabia requested that additional time also  be granted for filing the third participants' 
submissions in this case. 
After careful consideration, the Appellate Body deci ded to extend the deadlines for the filing of the 
complainants' submissions, and also to extend the deadline for the filing of China's appellee's 
submission, and the third participants' submissions. 
In US – Tuna II (Mexico) , the Division received a request from the United States to hold the oral 
hearing in this appeal during the week of 19 Fe bruary 2012, rather than the scheduled date of 
29 February-1 March, on the ground that a senior member of the US legal team would be unable to travel to Geneva after that time period for medi cal reasons. In the alternative, the United States 
proposed that the oral hearing be held in th e week of 26 March 2012 to provide additional 
preparation time for the Appellate Body and the participants. Mexico and the third participants 
were invited by the Division to submit comments. Having carefully considered the United States' request and the comments received from Mexico and the third participants in this dispute, and 
having also considered the size and complexity of this appeal, the Division ruled that the oral 
hearing would be held on 15-16 March 2012. 
6.1.3  Oral hearings 
In China – Raw Materials , China requested an extension of the time allocated for its opening 
statement at the oral hearing in view of the num ber of other appellants. The Division invited the 
other participants and the third participants to comment on China's request. Written comments were submitted by the United States, the European Union, and Mexico.
40 The Division informed the 
participants and third participants that it considered the time allocated for opening statements to 
reflect an appropriate balance in the light of the number of other appellants and the high number of third participants in the dispute and the time required in order to provide the participants and 
third participants with a full opportunity to respond to questions that would be posed by the 
Division at the oral hearing. Consequently, the Divi sion decided not to adjust the amount of time it 
had allocated to the participants for their opening statements at the oral hearing. 
In US – Large Civil Aircraft (2
nd complaint) , the participants requested that the oral hearing be 
opened to public observation to the extent that this would be possible given the need for protection of sensitive information. The participants suggested that the Division adopt a further procedural ruling pursuant to Rule 16(1) of the Working Procedures to regulate the conduct of the 
oral hearing in the light of the request for pub lic observation and the Additional Procedures, and 
proposed specific modalities for that purpose. On 12 July 2011, the Division invited the third participants to comment on the participants' request and proposed modalities. On 15 July 2011, 
Canada and China submitted comments on the partic ipants' request to open the oral hearing to 
public observation. Canada agreed with the joint proposal of the participants that the Division adopt the same additional procedures that were adopted in EC and certain member States – Large 
Civil Aircraft . China expressed its wish that the Division follow the same practice as in EC and 
certain member States – Large Civil Aircraft  to allow third participants the opportunity to request 
confidential treatment of their or al statements. On 26 July 2011, the Division issued a Procedural 
Ruling authorizing the participants' joint request for opening the hearing to public observation via 
                                               
40 The United States, the European Union, and Mexico  opposed China's request fo r additional time. They 
submitted that the time allocated to China was greater than in other appeals involving multiple complainants, 
and was also already proportionally greater than that gi ven to other participants in situations comparable to 
that of China in this dispute. WT/AB/18 
 
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  closed-circuit broadcasting and adopted Additional Procedures on the Conduct of the Oral Hearing, 
including the protection of certain sensitive information during the oral hearing.41 
The oral hearing took place in two sessions: the first on 16-19 August 2011, and the second on 11-14 October 2011. Pursuant to the Procedural Ru ling of 26 July 2011, the participants and third 
participants did not refer to any BCI or HSBI in their opening statements at either session of the 
oral hearing. The opening statements of the participants and third participants, with the exception of China and Korea, were videotaped at both th e first and second sessions of the oral hearing. 
Upon confirmation that no BCI or HSBI had been  inadvertently uttered, the videotapes of the 
opening statements were subsequently broadcast to those members of the public who had registered for the viewing. No participant or third participant made a closing statement at either session of the oral hearing. 
In US – COOL , the Appellate Body received a joint communication from Canada and the United 
States requesting that the Appellate Body allow obse rvation by the public of the oral hearing, with 
the understanding that any information that was designated as confidential in the documents filed 
in the Panel proceedings would be adequately protected in the course of the hearing. Mexico did 
not object to allowing public observation of the oral hearing, but maintained that its position was without prejudice to its systemic views on this matter. The Appellate Body invited the third 
participants to comment on the request by Canada  and the United States and Australia, Brazil, 
China, Colombia, the European Union, Guatemala, India, and New Zealand all submitted comments. The Division hearing this appeal issued  a Procedural Ruling accepting the joint request 
by Canada and the United States to open the hearing to public observation and adopting additional 
procedures for the conduct of the hearing.
42 
Public observation of the oral hearing took place via simultaneous closed-circuit television 
broadcast to a separate room. Transmission was turned off during statements made by those third 
participants that had indicated their wish to maintain the confidentiality of their submissions. 
6.1.4  Timeliness and adequacy of notifications and submissions In China – Raw Materials , the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 
submitted its delegation list for the oral hearing to the Appellate Body Secretariat and the 
participants and third participants after the deadline for the submission of third participant submissions or notifications. The Division interp reted this action as a notification expressing 
Chinese Taipei's intention to attend the oral hearing pursuant to Rule 24(4) of the Working 
Procedures.
43 
In the appeal in US – Tuna II (Mexico) , Thailand and the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu, neither of which had filed a written submission or notification, 
submitted their delegation lists for the oral hearing to the Appellate Body Secretariat, as well as to 
the participants and other third participants. The Division in this appeal also interpreted these actions as notifications expressing the third participants' intention to attend the oral hearing 
pursuant to Rule 24(4) of the Working Procedures. 
In US – COOL , certain filings were made outside of the deadlines prescribed by the Working 
Procedures or by the Division hearing this appeal . The Appellate Body noted, for example, that the 
hard copy of Canada's other appellant's submission, and the electronic copies of Mexico's Notice of 
Other Appeal, other appellant's submission, and ap pellee's submission, were not received before 
the 17:00 deadline specified in Rule 18(1) of th e Working Procedures. In addition, India's third 
participant notification in these proceedings was not received before the 17:00 deadline  
                                               
41 This procedural ruling was attached as Annex IV to the Appellate Body Report in US – Large Civil 
Aircraft (2nd complaint) . 
42 This procedural ruling was attached as Annex IV to the Appellate Body Report in US – COOL . 
43 Appellate Body Report, China – Raw Materials , footnote 44 to para. 12. WT/AB/18 
 
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  specified in Rule 18(1) of the Working Procedures. Accordingly, the Division treated India's filing as 
a notification and request to make an oral statement at the hearing made pursuant to Rule 24(4) of the Working Procedures.
44 
6.1.5  Additional memoranda 
In US – Large Civil Aircraft (2nd complaint) , following the first session of the oral hearing, the 
Division invited the participants and third participants to submit additional written memoranda, pursuant to Rule 28 of the Working Procedures,  on the topics addressed at the first session, 
subject to a word limit. The participants and third participants were given an opportunity at the 
second session of the oral hearing to make comments on the others' additional memoranda. 
6.1.6  Unsolicited amicus curiae  briefs 
Two unsolicited amicus curiae  briefs were received in the US – Clove Cigarettes  appellate 
proceedings: a joint brief from the Campaign for Tobacco Free Kids, the American Academy of 
Pediatrics, the American Cancer Society, the American Cancer Society Cancer Action Network, the American Lung Association, the American Medica l Association, and the American Public Health 
Association; and a brief from the O'Neill Institute for National and Global Health Law at the 
Georgetown University Law Center. After giving the participants and the third participants an opportunity to express their views, the Division did not find it necessary to rely on these amicus 
curiae  briefs in rendering its decision.
45 
In the same proceedings, the Division received a letter from the Director General of the World 
Health Organization (the "WHO") expressing inte rest and offering technical assistance in the 
appeal in areas covered by the WHO's mandate. The Division asked the participants and third 
participants to comment on the letter from the WHO. The United States and the European Union 
submitted comments to the Division. In the light of the fact that the parties had placed a considerable amount of materials regarding WHO legal instruments and the WHO's work in the 
area of tobacco control on the Panel record, and mindful of the scope of appellate review under 
Article 17.6 of the DSU, the Division did not deem  it necessary to request assistance from the 
WHO.
46 
In the proceedings in US – Tuna II (Mexico) , the Division received three unsolicited amicus curiae  
briefs from the Humane Society of the United States/Humane Society International and Washington College of Law (WCL); ASTM International (formerly the American Society for Testing and Materials); and a law professor. The participants and the third participants were given an 
opportunity to express their views on these briefs  at the oral hearing. The Division hearing the 
appeal did not find it necessary to rely on these amicus curiae  briefs in rendering its decision.
47 
6.1.7  Extension of the 60-day appeal period 
In a number of cases, the parties jointly requested the DSB to take a decision extending the 60-
day deadline in Article 16.4 of the DSU for adopti on or appeal of a panel report. These requests 
were made, inter alia , in the light of the "workload of the A ppellate Body" and in order to "provide 
greater flexibility in scheduling any possible appe al". The DSB agreed to an extension of the 60-
day period for the adoption or appeal of the panel report until 20 January 2012 in US – Clove 
Cigarettes48 and US – Tuna II (Mexico)49; and until 23 March 2012 in US – COOL (Canada)50 and 
US – COOL (Mexico) .51 
                                               
44 Appellate Body Report, US – COOL , footnote 55 to para. 11. 
45 Appellate Body Report, US – Clove Cigarettes , para. 10. 
46 Appellate Body Report, US – Clove Cigarettes , para. 11. 
47 Appellate Body Report, US – Tuna II (Mexico) , para. 8. 
48 WT/DS406/5 and WT/DSB/M/303. 
49 WT/DS381/9 and WT/DSB/M/306. 
50 WT/DS384/11 and WT/DSB/M/310. 
51 WT/DS386/10 and WT/DSB/M/310. WT/AB/18 
 
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  6.1.8  Extension of time period for circulation of reports 
The 90-day time period stipulated in Article 17.5 of the DSU was exceeded in 7 out of the 
9 appeals for which Appellate Body reports were circulated in 2012: China – Raw Materials 
(United States) ; China – Raw Materials (European Union) ; China – Raw Materials (Mexico) ; US – 
Large Civil Aircraft (2nd complaint) ; US – Tuna II (Mexico) ; US – COOL (Canada) ; and US – COOL 
(Mexico) . The Appellate Body reports in US – Clove Cigarettes  and China – GOES  were circulated 
within the 90-day time period. 
The Appellate Body communicated to the DSB Chair the reasons for the impossibility to circulate 
an Appellate Body report within the 90-day time pe riod in each of the appeals for which the 90-day 
time period was not met in 2012.52 These reasons included: the numerous issues raised on appeal 
and their complexity; the considerable size of the panel record; the heavy workload of the 
Appellate Body; difficulties with scheduling para llel appeals; and the time required for the 
completion and translation of the report. 
6.1.9  Request for separate reports 
In the appellate proceedings in US – COOL , the United States requested the Appellate Body to 
issue two reports in one single document with common descriptive and analytical sections, and separate sections containing findings and conclusions for each complainant. Canada and Mexico 
were afforded an opportunity to respond to the United States' request, and neither raised any 
objection to that request. Therefore, the Appella te Body issued these reports in the form of a 
single document constituting two separate Appellate Body Reports: US – COOL (Canada) , 
WT/DS384/AB/R; and US – COOL (Mexico) , WT/DS386/AB/R. 
7  ARBITRATIONS UNDER ARTICLE 21.3(C) OF THE DSU 
Individual Appellate Body Members have been asked to act as arbitrators under Article 21.3(c) of 
the DSU to determine the "reasonable period of time" for the implementation by a WTO Member of 
the recommendations and rulings adopted by the DSB in dispute settlement cases. The DSU does 
not specify who shall serve as arbitrator. The parties to the arbitration select the arbitrator by agreement or, if they cannot agree on an arbitrat or, the Director-General of the WTO appoints the 
arbitrator. To date, all those who have served as arbitrators pursuant to Article 21.3(c) have been 
current or former Appellate Body Members. In carrying out arbitrations under Article 21.3(c), 
Appellate Body Members act in an individual capacity. 
One Article 21.3(c) arbitration proceeding was carried out in 2012. Further information about the 
arbitration is provided below. 
7.1  US – Certain Country of Origin  Labelling (COOL) Requirements , WT/DS384/24, 
WT/DS386/23 
On 23 July 2012, the DSB adopted the Panel and Appellate Body Reports in United States – 
Certain Country of Origin Labelling (COOL) Requirements . These disputes concerned certain US 
country of origin labelling ("COOL") requirements for beef and pork when sold at the retail level.  
The Appellate Body upheld, albeit for different reasons, the Panel's ultimate finding that the "COOL 
measure", particularly in regard to the muscle cut meat labels, was inconsistent with Article 2.1 of the TBT Agreement because it accorded less favour able treatment to imported livestock than to 
like domestic livestock. The "COOL measure" comprised the COOL statute (the Agricultural 
Marketing Act of 1946, as amended by the 2002 and 2008 Farm Bills) passed by the US Congress, 
and its implementing regulation, the "2009 Final Ru le" promulgated by the Secretary of Agriculture 
through the US Department of Agriculture's (t he "USDA") Agricultural Marketing Service.  
At the meeting of the DSB held on 31 August 2012, the United States signalled its intention to 
comply with the recommendations and rulings of the DSB, and stated that it would need a 
                                               
52 For China – Raw Materials , see WT/DS394/13, WT/DS395/13, WT/DS398/12; for US – Large Civil 
Aircraft (2nd complaint) , see WT/DS353/11; for US – Tuna II (Mexico) , see WT/DS381/12; and for US – COOL , 
see WT/DS384/14, WT/DS386/13. WT/AB/18 
 
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  r e a s o n a b l e  p e r i o d  o f  t i m e  t o  d o  s o .  A s  t h e  p a r t i e s  t o  t h e  d i s p u t e s  w e r e  u n a b l e  t o  a g r e e  o n  a  
"reasonable period of time" for implementation, Canada and Mexico referred the matter to arbitration pursuant to Article 21.3(c) of the DSU. Both Canada and Mexico asked that their 
requests pursuant to Article 21.3(c) of the DSU be dealt with by the same arbitrator in joint 
proceedings. As the parties failed to agree on an arbitrator, on 4 October 2012, the 
Director-General appointed Mr. Giorgio Sacerdoti to act as the Arbitrator in these disputes. Mr. Sacerdoti accepted the appointment on 5 October 2012. 
The United States proposed that the reasonable period of time for implementation of the DSB's 
recommendations and rulings should be 18 months from the date of adoption of the Panel and 
Appellate Body reports. The United States argu ed that a change to the COOL measure could 
involve either legislative action followed by regulatory action, or regulatory action only. Although 
the United States submitted that it had no t yet decided which of these two means of 
implementation it would choose, it requested the Ar bitrator to determine the reasonable period of 
time needed for implementation through regulatory action. The United States contended that it 
had not ruled out the possibility of making statutory changes, but noted that this would take 
substantially longer than the 18 months it had requested. This 18-month period encompassed, according to the United States, 12 months to complete the US regulatory process, and six months 
to comply with the procedural requirement under  Article 2.12 of the TBT Agreement to allow a 
"reasonable interval" between the publication of a modified COOL regulation and its entry into 
force. 
The United States first argued that the shortest timeframe within which it would normally be able 
to complete the regulatory process to publish a modified COOL regulation would be 12 months. 
This timeframe would encompass five months for th e preparatory phase; 90 days for the Office of 
Management and Budget's review of the proposed rule and the final rule; 60 days for notice and 
public comments; and two months for the USDA to review the comments. In addition, the United 
States explained that, according to the Congressional Review Act, the US Congress should have been provided with at least 60 days to review the final rule after its publication and before its entry 
into force. The United States recalled, however, that the COOL measure had been found by the 
Appellate Body and by the Panel to be a technica l regulation within the meaning of Annex 1.1 to 
the TBT Agreement, and that, in US – Clove Cigarettes , the Appellate Body had found that 
Article 2.12 of the TBT Agreement, as clarified by  paragraph 5.2 of the Doha Ministerial Decision, 
requires that Members allow a period of at least six months  between the publication and the entry 
into force of technical regulations. The United Stat es thus contended that it would have to allow for 
an additional period of six months between the pu blication of the modified COOL regulation and its 
entry into force (therefore, in total, a period of 18 months).  
Canada contended that withdrawal of the COOL measure would entail little complexity, since it 
would simply require removing muscle cuts of b eef and pork from the commodities covered by the 
COOL measure. In any event, Canada argued that the reasonable period of time for the United 
States to implement the DSB's recommendations and rulings should not exceed six months from 
the date of adoption of the Panel and Appellate Body reports, comprising two months for preparatory work and four months to make the implementing measure effective. Mexico argued 
that the United States should be granted a maximum of eight months for implementation in the 
present case. Moreover, Mexico contended that, in  accordance with Article 21.2 of the DSU, the 
Arbitrator should pay particular attention to matters affecting the interests of Mexico as a 
developing country Member.  
Both Canada and Mexico argued that the United States omitted relevant flexibilities that are 
available within its domestic legal system – like, fo r example, the possibility to issue "interim final 
rules" – to facilitate expeditious regulatory change s. They also contended that Article 2.12 of the 
TBT Agreement does not apply to the determination of a reasonable period of time under Article 21.3(c) of the DSU and that, in any case, it did not justify the United States allowing six months to elapse between the publication and the en try into force of the modified COOL regulation 
so as to continue discriminating against Canadian and Mexican imports of livestock. Canada and 
Mexico observed that the six-month period in Article 2.12 of the TBT Agreement is provided in  WT/AB/18 
 
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  order to allow producers in exporting countries to adapt their products or production methods to 
the requirements of the importing Member. Since they export livestock to the United States, 
Canadian and Mexican producers would not require any time to adapt their products (cattle and/or hogs) or their production methods to the requirements of a modified COOL regulation.  
Like previous arbitrators, the Arbitrator found  that the United States, as the implementing 
Member, has a measure of discretion in choosing the means of implementation that it deems most appropriate. The Arbitrator considered that the reas onable period of time in this arbitration should 
allow the United States to comply with the re commendations and rulings of the DSB either by 
modifying the COOL measure, or by repealing it with regard to muscle cuts of beef and pork. 
Turning to the order of analysis, the Arbitrator explained that he would address first the reasonable period of time necessary for the United States to implement the COOL rulings within its 
legal system, and then he would consider the issue of whether an additional six-month period was 
required for the United States to comply with Article 2.12 of the TBT Agreement. 
With respect to implementation within the US le gal system, the Arbitrator started by considering 
the regulatory process  in the United States. He recalled that the implementing Member is expected 
to use whatever flexibility is available within its domestic legal system to implement promptly the recommendations and rulings of the DSB, but that it is not required to use extraordinary means. 
In this regard, he found that for some of the steps of the regulatory process described by the 
United States there were flexibilities available to  make those steps happen more expeditiously. The 
Arbitrator concluded that the United States could adopt a modified COOL regulation in a period of approximately eight months from the date of adoption of the DSB's recommendations and 
rulings. In addition, he considered that two months should be allowed for Congressional review 
between the publication of the modified COOL regulation and its entry into force. That is, in total, a r e a s o n a b l e  p e r i o d  o f  t i m e  o f  1 0  m o n t h s .  I n  t h e  l i g h t  o f  C a n a d a ' s  a n d  M e x i c o ' s  a r g u m e n t s ,  t h e  
Arbitrator also addressed the possibility of the United States modifying the COOL regulation by 
issuing an interim final rule , rather than by following the standard regulatory process. He noted 
that, since interim final rules enter into force without prior notice and without granting a period for 
public comments, they speed up the regulatory pr ocess. The Arbitrator concluded that, should the 
United States choose to use an interim final rule, it could bring itself into compliance even faster than through a rule adopted pursuant to the stan dard regulatory process. Although the United 
States had indicated at the oral hearing that it would choose regulatory action, the Arbitrator 
addressed the possibility of a legislative change . In this respect, he observed that the flexibilities 
available in the US legislative process allow the passage of legislation in short timeframes, whenever required. Even if the United States chos e legislative action, the Arbitrator noted that, in 
the event regulatory action was needed in addition to legislative action, this could be done speedily 
through an interim final rule. The Arbitrator concluded that the United States could comply with the DSB's recommendations and rulings through legislative action followed by regulatory action 
within the same period of time in which it could complete the standard regulatory process. Finally, 
the Arbitrator was not persuaded that Mexico's status as a developing country Member required a shorter reasonable period of time for implementation in the circumstances of this case. 
Regarding Article 2.12 of the TBT Agreement, the Arbitrator first considered whether compliance 
with this provision is a factor that must be taken into account in determining the reasonable period 
of time under Article 21.3(c) of the DSU, when compliance involves the issuance of a technical 
regulation. He noted that Article 21 of the DSU do es not exclude that the requirement to comply 
with another WTO obligation, which affects the ti me needed for implementation, may have to be 
taken into account in the determination of the reasonable period of time. He also recalled that past arbitrators had found that even non-WTO obligations may be relevant to the determination of the 
reasonable period of time. The Arbitrator then turned to address whether Article 2.12 of the TBT 
Agreement justified in this case extending the reasonable period of time by six months. He recalled that, in US – Clove Cigarettes , the Appellate Body considered that, taking into account the 
interpretative clarification provided by paragraph 5.2 of the Doha Ministerial Decision, Article 2.12 
of the TBT Agreement establishes a rule that "nor mally" producers in exporting Members require a 
period of "not less than 6 months" to adapt their products or production methods to the requirements of an importing Member's technical re gulation. He noted, however, that the "normal" 
period of six months may be reduced in situations where producers need less time, or even no 
time at all, to adapt to the technical regulation – which Canada and Mexico contended was the case here. Similarly, the six-month period may be re duced when it would be ineffective to fulfil the 
legitimate objectives pursued by the technical regu lation – one of the objectives of the compliance 
measure at issue being prompt compliance. Accordin gly, the Arbitrator concluded that Article 2.12 WT/AB/18 
 
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  of the TBT Agreement did not justify, in the circ umstances of this case, granting the additional 
period of time requested by the United States.  
In the light of the above, the Arbitrator determined that the "reasonable period of time" for 
implementation of the DSB's recommendations and rulings in these disputes was 10 months, 
expiring on 23 May 2012. 
8  TECHNICAL ASSISTANCE Appellate Body Secretariat staff participated in the WTO Biennial Technical Assistance and Training 
Plan: 2012-2013
53, particularly in activities relating to training in dispute settlement procedures. 
Overall, Appellate Body Secretariat staff participated in 15 technical assistance activities during the 
course of 2012. 
Annex 7 provides further information about the activities carried out by Appellate Body Secretariat 
staff in 2012 falling under the WTO Technical Assistance and Training Plan. 
9  OTHER ACTIVITIES The Appellate Body Secretariat participates in the WTO internship programme, which allows post-
graduate university students to gain practical experience and a deeper knowledge of the global 
multilateral trading system in general, and WTO dispute settlement procedures in particular. Interns in the Appellate Body Secretariat obtain  first-hand experience of the procedural and 
substantive aspects of WTO dispute settlement and, in particular, appellate proceedings. The 
internship programme is open to nationals of WTO Members and to nationals of countries and customs territories engaged in accession negotiations. Each internship is generally for a three-month period. During 2012, the Appellate Body Secretariat welcomed interns from Australia, 
Austria, Belarus, China, Italy, and El Salv ador. A total of 107 post-graduate students, of 
49 nationalities, have completed internships with the Appellate Body Secretariat since 1998. Further information about the WTO internship programme, including eligibility requirements and 
application instructions, may be obtained online at:  
<https://erecruitment.wto.org/public/hrd-cl- vac-iew.asp?jobinfo_uid_c=3475&vaclng=en> 
Appellate Body Secretariat staff participates in briefings organized for groups visiting the WTO, 
including students. In these briefings, Appellate Bo dy Secretariat staff speaks to visitors about the 
WTO dispute settlement system in general, and appellate proceedings in particular. Appellate Body Secretariat staff also participates as judges in moot court competitions. A summary of these activities carried out by Appellate Body Secretariat staff during the course of 2012 can be found in 
Annex 7. 
                                               
53 WT/COMTD/W/180/Rev.1. WT/AB/18 
 
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  ANNEX 1A 
MEMBERS OF THE APPELLATE BODY 
(1 JANUARY TO 31 DECEMBER 2012) 
BIOGRAPHICAL NOTES 
Ujal Singh Bhatia  (India) (2011–2015) 
U j a l  S i n g h  B h a t i a  w a s  b o r n  i n  I n d i a  o n  1 5  A p r i l  1 9 5 0 .  P r i o r  t o  b e c o m i n g  a n  A p p e l l a t e  B o d y  
Member, Mr. Bhatia was an independent consultant  and academic engaged in developing a policy 
framework for Indian agricultural investments overseas, while at the same time working with the 
Commonwealth Secretariat on multilateral trade issues. 
Mr. Bhatia was India's Permanent Representative to the WTO from 2004 to 2010. During his 
tenure as Permanent Representative, he was an active participant in the dispute settlement 
process, representing India in a number of dispute settlement  cases both as a complainant and 
respondent in disputes relating to anti-dumping, as well as taxation and import duty issues. He also has adjudicatory experience having served as a WTO dispute settlement panelist. 
Mr. Bhatia previously served as Joint Secretary in the Indian Ministry of Commerce, where he 
focused on the legal aspects of international trade.  During this period, he was also a Member of 
the Appellate Committee under the Foreign Trade (Development and Regulation) Act. The 
Committee heard appeals of exporters and importers against the orders of the Director General 
Foreign Trade. Mr. Bhatia was also Joint Secretary of the Ministry of Information and Broadcasting and held various positions in the government of the Indian state of Orissa. 
Mr. Bhatia's legal and adjudicatory experience sp ans three decades. He has focused on addressing 
domestic and international legal/jurisprudence issues, negotiating trade agreements and policy 
issues at the bilateral, regional and multilateral levels, and formulating and implementing trade and development policies for a range of agriculture, industry and service sector activities. 
Mr. Bhatia has lectured on international trade issues , and has published numerous  papers and 
articles in Indian and foreign journals on a wide range of trade and economic issues. Mr. Bhatia holds an M.A. in Economics from the University of Manchester and from Delhi University, as well as 
a B.A. (Hons.) in Economics, also from Delhi University. 
Seung Wha Chang  (Korea) (2012–2016) 
Born in Korea on 1 March 1963, Seung Wha Chang is currently Professor of Law at Seoul National 
University where he teaches International Trade Law and International Arbitration. 
He has served on several WTO dispute settlement panels, including US – FSC , Canada – Aircraft 
Credits and Guarantees , and EC – Trademarks and Geographical Indications . He has also served as 
Chairman or Member of several arbitral tribuna ls dealing with commercial matters. In 2009, he 
was appointed by the International Chamber of Co mmerce (ICC) as a Member of the International 
Court of Arbitration. 
Professor Chang began his professional academic car eer at the Seoul National University School of 
Law in 1995, and was awarded professorial tenure in 2002. He has taught international trade law 
and, in particular WTO dispute settlement, at more than ten foreign law schools, including Harvard Law School, Yale Law School, Stanford Law Scho ol, New York University, Duke Law School, and 
Georgetown University. In 2007, Harvard Law School  granted him an endowed visiting professorial 
chair title, the Nomura Visiting Professor of International Financial Systems. WT/AB/18 
 
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  In addition, Professor Chang previously served as a Seoul District Court judge, handling many 
cases involving international trade disciplines. He also practised as a foreign attorney at an international law firm in Washington D.C., handling international trade matters, including trade remedies and WTO-related disputes. 
Professor Chang has published many books and articles in the field of international trade law in 
internationally recognized journals. In addition, he serves as an Editorial or Advisory Board Member of the Journal of International Economic Law  (Oxford University Press) and the Journal of 
International Dispute Settlement  (Oxford University Press). 
Professor Chang holds a Bachelor of Laws degree (LL.B.) and a Master of Laws degree (LL.M.) from 
S e o u l  N a t i o n a l  U n i v e r s i t y  S c h o o l  o f  L a w ;  a n d  a  M a s t e r  o f  L a w s  d e g r e e  ( L L . M . )  a s  w e l l  a s  a  Doctorate in International Trade Law (S.J.D.) from Harvard Law School. 
Thomas R. Graham  (United States) (2011–2015) 
Born in the United States on 23 November 1942, Tom Graham is the former head of the 
international trade practice at a large international law firm, and the founder of the international 
trade practice at another large international law firm. He was one of the first US lawyers to 
represent respondents in trade remedy cases in various countries around the world, and he was among the first to bring economists, accountants, and other non-lawyer professionals into the 
international trade practices of private law firms. Mr. Graham also headed his international trade 
practice group's committee on long-term planning and development. 
In private law practice, Mr. Graham often collaborated with local counsel and national authorities 
in various countries to develop legal interpretations of laws and regulations consistent with 
GATT/WTO agreements, and in negotiating the re solution of international trade disputes. 
Mr. Graham served as Deputy General Counsel in the Office of the US Trade Representative, where 
he was instrumental in the negotiation of the Tokyo Round Agreement on Technical Barriers to 
Trade and where he represented the US Government in dispute settlement proceedings under the 
GATT. Earlier in his career, Mr. Graham served for three years in Geneva as a Legal Officer at the United Nations Conference on Trade and Development (UNCTAD). 
Mr. Graham was the first chairman of the American Society of International Law's Committee on 
International Economic Law, and the chair of the American Bar Association's Subcommittee on 
Exports. He has been a visiting professor at the University of North Carolina Law School and an adjunct professor at the Georgetown University Law Center and the American University 
Washington College of Law. He has edited books on international trade policy, and international 
trade and environment, and he has written many articles and monographs on international trade law and policy as a Guest Scholar at the Brookings Institution, and as a Senior Associate at the 
Carnegie Endowment for International Peace. 
Mr. Graham holds a BA in International Relations and Economics from Indiana University and a 
J.D. from Harvard Law School. 
Shotaro Oshima  (Japan) (2008–April 2012) 
Born in Japan on 20 September 1943, Shotaro Oshi ma is a law graduate from the University of 
Tokyo. Since April 2008, he is Visiting Professor at the Graduate School of Public Policy, the 
University of Tokyo. He was a diplomat in the Japanese Foreign Service until March 2008, when he 
retired after 40 years of service, his last overse as posting being Ambassador to the Republic of 
Korea. 
From 2002 to 2005, Mr. Oshima was Japan's Permanent Representative to the WTO, during which 
time he served as Chair of the General Council and of the Dispute Settlement Body. Prior to his 
time in Geneva, he served as Deputy Foreign Mi nister responsible for economic matters and was 
designated as Prime Minister Koizumi's Personal Representative to the G-8 Summit in Canada in 
June 2002. In the same year, he served as the Prime Minister's Personal Representative WT/AB/18 
 
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  to the United Nations World Summit on Sustainable Development in South Africa. From 1997 to 
2000, he served as Director-General for Economic Affairs in the Ministry of Foreign Affairs, responsible for formulating and implementing major policy initiatives in Japan's external economic relations.  
Ricardo Ramírez-Hernández  (Mexico) (2009–2013) 
Born in Mexico on 17 October 1968, Ricardo Ramírez-Hernández holds the Chair of International 
Trade Law at the Mexican National University (UNAM) in Mexico City. He was Head of the 
International Trade Practice for Latin America of an international law firm in Mexico City. His 
practice focused on issues related to NAFTA and trade across Latin America, including international trade dispute resolution. 
Prior to practicing with a law firm, Mr. Ramírez-Hernández was Deputy General Counsel for Trade 
Negotiations of the Ministry of Economy in Mexico for more than a decade. In this capacity, he 
provided advice on trade and competition policy matters related to 11 free trade agreements signed by Mexico, as well as with respect to multilateral agreements, including those related to the 
WTO, the Free Trade Area of the Americas (FTAA), and the Latin American Integration Association 
(ALADI). 
Mr. Ramírez-Hernández also represented Mexico in complex international trade litigation and 
investment arbitration proceedings. He acted as lead counsel to the Mexican government in 
several WTO disputes. He has al so served on NAFTA panels. 
Mr. Ramírez-Hernández holds an LL.M. degree in International Business Law from the American 
University Washington College of Law, and a law degree from the Universidad Autónoma 
Metropolitana. 
David Unterhalter  (South Africa) (2006–2013) 
Born in South Africa on 18 November 1958, David Unterhalter holds degrees from Trinity College, 
Cambridge, the University of the Witwatersrand, and University College, Oxford. Mr. Unterhalter 
has been a Professor of Law at the University of the Witwatersrand in South Africa since 1998, and 
from 2000 to 2006, he was the Director of the Mandel a Institute, University of the Witwatersrand, 
an institute focusing on global law. He was Visiting Professor of Law at Columbia Law School in 
2008. 
Mr. Unterhalter is a member of the Johannesburg Ba r. As a practising advocate, he has appeared 
in a large number of cases in the fields of trade law, competition law, constitutional law, and 
commercial law. His experience includes repres enting different parties in anti-dumping and 
countervailing duty cases. He has acted as an advisor to the South African Department of Trade and Industry. In addition, he has served on  a number of WTO dispute settlement panels. 
Mr. Unterhalter has published widely in the fields of public law and competition law.  
Peter Van den Bossche  (European Union; Belgium) (2009–2013) 
Born in Belgium on 31 March 1959, Peter Van den Bossche is Professor of International Economic 
Law at Maastricht University, the Netherlands. He is  a visiting professor at the College of Europe in 
Bruges, Belgium. Mr. Van den Bossche is a Member of the Board of Editors of the Journal of 
International Economic Law . 
Mr. Van den Bossche holds a Doctorate in Law from the European University Institute in Florence, 
an L L .M . from the  Uni ve rs ity of  M ic h i g an Law School, and a Licence en Droit magna cum laude  
from the University of Antwerp. From 1990 to 19 92, he served as a Référendaire of Advocate 
General W. van Gerven at the European Court of Justice in Luxembourg. From 1997 to 2001, Mr. 
Van den Bossche was Counsellor and subsequently Acting Director of the WTO Appellate Body 
Secretariat. In 2001, he returned to academia and from 2002 to 2009 frequently acted as a consultant to international organisations and developing countries on issues of international 
economic law. He also served on the faculty of the World Trade Institute in Berne, Switzerland; the 
China EU School of Law (CESL) in Beijing, Ch ina; the IELPO programme of the University of WT/AB/18 
 
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  Barcelona, Spain; the Trade Policy Training Centre in Africa (trapca) in Arusha, Tanzania; and the 
IEEM Academy of International Trade an d Investment Law in Macau, China. 
Mr. Van den Bossche has published extensively in the field of international economic law. The 
second edition of his textbook The Law and Policy of the World Trade Organization  was published 
by Cambridge University Press in 2008. 
Yuejiao Zhang  (China) (2008–2012) 
Yuejiao Zhang is Professor of International Economic Law at Tsinghua University and at Shantou 
University in China. She is an arbitrator at the International Chamber of Commerce (ICC) and 
China's International Trade and Economic Arbitration Commission (CIETAC). She served as Vice-President of China's International Economic Law Society. She is also a member of the Advisory Board of the International Development Law Organization (IDLO). 
Ms. Zhang served as a Board Director to the We st African Development Bank from 2005 to 2007. 
Between 1998 and 2004, she held various senior po sitions at the Asian Development Bank (ADB), 
including as Assistant General Counsel, Co-Chair of the Appeal Committee, and Director-General. 
She was the head of the ADB experts group on in ternational trade and the ADB contact point to 
the WTO. Prior to this, she held several positions in government and academia in China, including as Director-General of Law and Treaties at the Mi nistry of Foreign Trade and Economic Cooperation 
(1984–1997). From 1987 to 1996, she was one of China's chief negotiators on intellectual property 
and was involved in the preparation of China's patent law, trademark law, and copyright law. She also served as the chief legal counsel for China's GATT resumption. Between 1982 and 1985, Ms. Zhang worked as legal counsel at the World Bank . She was a Member of the Governing Council of 
UNIDROIT (International Institute for the Unification of Private Law) from 1987 to 1999 and a 
Board Member of IDLO from 1988 to 1999. Ms. Zhang was a member of UNIDROIT and UNCITRAL drafting committees concerning several internationa l trade and economic conventions, such as the 
General Principles of Commercial Contract and the International Financial Leasing Convention. 
Ms. Zhang has authored several books and articles on international economic law and international 
dispute settlement. She has a Bachelor of Arts from China High Education College, a BA from 
Rennes University, France, and a Master of Laws from Georgetown University. 
* * * 
DIRECTOR OF THE APPELLATE BODY SECRETARIAT 
Werner Zdouc 
 
Director of the WTO Appellate Body Secretariat since 2006, Werner Zdouc obtained a law degree from the University of Graz in Austria. He then went on to earn an LL.M. from Michigan Law School 
and a Ph.D. from the University of St. Gallen in Switzerland. Dr. Zdouc joined the WTO Legal 
Affairs Division in 1995, advised many dispute settlement panels, and conducted technical cooperation missions in many developing countries. He became legal counsellor at the 
Appellate Body Secretariat in 2001. He has been a lecturer and Visiting Professor for international 
trade law at Vienna Economic University, the Un iversities of Zurich and Barcelona. From 1987 
to 1989, he worked for governmental and non-governmental development aid organizations in Austria and Latin America. Dr. Zdouc has authored various publications on international economic 
law and is a member of the Trade Law Commi ttee of the International Law Association. WT/AB/18 
 
- 99 - 
 
  ANNEX 1B 
FAREWELL SPEECH OF DEPARTING APPELLATE BODY MEMBER  
Farewell remarks of Shotaro Oshima to the Dispute Settlement Body of the WTO 
Geneva, 13 June 2012 
 
Members of the DSB, Mr. Director-General, dear colleagues of the Appellate Body and its Secretariat, ladies and gentlemen: 
 
At the outset, I wish to thank all of you for your warm words and for providing me with this opportunity to address you at the conclusion of my term.  
Having had the privilege and honour of spending these remarkable four years in the company of 
the extremely intelligent, wise and collegial members of the Appellate Body, both present and 
past, and the unbelievably dedicated men and women of  the Appellate Body Secretariat, it is with 
a heavy heart that I have come to say farewell. 
When my resignation took effect in April and I was told that the occasion for my farewell would be, 
in accordance with past practice, in mid-June at the time of the swearing-in of my successor Professor Chang – whom I wish to take this opportunity to personally congratulate and welcome – 
I was not sure whether I could come because I knew I would have started working for my 
government by then. Then there was a more serious hesitation, almost reluctance, which was due to a voice from deep inside me that cast a serious doubt as to the advisability of my being here today. This inner voice somehow reminded me of an old movie I saw over fifty years ago, "The 
Nun's Story". As some of the old timers here  might remember, the young woman, played by 
Audrey Hepburn, takes the vow as a nun, but afte r the story of her life devoted to god, she 
decides to leave her convent and return to the li fe outside. My doubt related to the question 
whether I would be breaking the oath I took four years ago to serve the truth as embodied in the 
covered agreements, by resigning from the Appellate Body in order to make myself available to go 
back to work for my government. 
My recollection of the last scene of the movie was nebulous, and I could not remember whether 
the nun, having walked out into the "real world where people live and work and die"
54, actually 
looked back over her shoulder at the door that closed behind her. And the metaphor had to do 
with whether I could come and face you as if to re-enter through the door that I had closed behind 
me. After some searching for the movie on the internet, I confirmed that, in the very last scene, 
she walked away, never looking back, and then appeared the two words "The End". 
During these past weeks, I have come to realize that I have been asked to work for my 
government upon its recognition that I had served the Appellate Body in an independent and 
impartial manner, true to the spirit of professionalism. 
Four years ago, I came to the Appellate Body, after a life-long career as a professional diplomat, to 
serve the interests of the rules-based multilateral  trading system. When I resigned, my integrity 
was, I believe, intact. My commitment and dedication to the rules-based multilateral trading system has not changed and will not change. 
Having said the above by way of preamble – Yes, the foregoing was only the chapeau – I will now 
turn to the operative part of my speech, but I will keep the rest rather short. I will limit myself to 
raising a concern I have about the way WTO Members react to Appellate Body reports. 
When I joined the Appellate Body, I did not naively think I was entering a monastery-like place of 
sinless purity, but I did look forward to some respite from the intensely political atmosphere of 
trade negotiations. Sadly, I realized that the politicking did not stop at the door, which said you are entering the sanctity of the dispute settlemen t process. This became very evident every time 
Appellate Body reports were made public. 
                                               
54 Appellate Body Report, EC – Hormones , para. 187. WT/AB/18 
 
- 100 - 
 
  When a report is issued, almost always, we would see news reports coming from capitals of the 
parties where spokespersons claim victory or express regret. There were also some rare occasions when two sides declared victory against each other. Nevertheless, whether it was a win-win or win-lose situation, the very fact that the decisions were seen in terms of victory or defeat does not 
resonate well with the principles of the dispute settlement system. 
Members of course have the right to express themselves when the DSB adopts a report. 
Nevertheless, it is profoundly disconcerting to see those who claim victory applauding the 
Appellate Body, in effect for "siding" with thei r arguments, and those who "lost" going at great 
lengths to criticize the Appellate Body for deciding  against them, as if for both sides the principle 
of independence and impartiality of the Appellate Body did not exist.  
Appellate Body Members are guided only by their conscience in clarifying the covered agreements, 
and will never take sides. Thus, its decisions can never be for or against either of the sides. The 
truth is, when an Appellate Body report is issued, there is no winner or loser among the parties, because the only winner is the dispute settl ement process of the WTO and thus the WTO 
membership as a whole. It is a victory for the rule of law.  
******* 
 
Before closing, I wish to mention that it is al ready fifty years since I fi rst entered university in 
Tokyo, my alma mater. Throughout the five decades since, the notion of the rule of law has been the object of my quest for understanding political systems and statecraft, be it domestic or international. After all, the rule of law is the essence of democracy, which is the best political 
system in providing stability, which is necessary for the security and predictability in the market, 
which in turn is critical for economic growth and social stability, which constitute the necessary basis for effective democracy. The logic of this virtuous cycle is true not only for nation-states but 
also, in this age of globalization, for the international political-economic system. 
Being a rare specimen for whom this occasion ma rks my second time facing the WTO membership 
to say farewell, I wish to paraphrase my parting words when I addressed the General Council in 
February of 2005 and say, "An old Appellate Body Member never dies, he just fades away". 
So, with these words, and before I completely fade  away, I wish to reiterate my heartfelt gratitude 
to you all, WTO Members and Appellate Body Member s past and present, for giving me the honour 
of serving the principle of the rule of law as Member of the Appellate Body. My final thanks go to 
those wonderful, best ever, Members of the Appellate Body Secretariat who are absolutely 
irreplaceable. 
Long live the Appellate Body, the WTO and the rules-based multilateral trading system! WT/AB/18 
 
- 101 - 
 
  ANNEX 2 
I. FORMER APPELLATE BODY MEMBERS 
Name Nationality Term(s) of office 
Said El-Naggar Egypt  1995–2000 * 
Mitsuo Matsushita Japan  1995–2000 * 
Christopher Beeby New Zealand 1995–1999 
1999–2000 
Claus-Dieter Ehlermann Germany 1995–1997 
1997–2001 
Florentino Feliciano Philippines 1995–1997 
1997–2001 
Julio Lacarte-Muró Uruguay 1995–1997 
1997–2001 
James Bacchus United States 1995–1999 
1999–2003 
John Lockhart Australia 2001–2005 
2005–2006 
Yasuhei Taniguchi Japan 2000–2003 
2003–2007 
Merit E. Janow United States  2003–2007 ** 
Arumugamangalam 
Venkatatchalam Ganesan India 2000–2004 
2004–2008 
Georges Michel Abi-Saab Egypt 2000–2004 
2004–2008 
Luiz Olavo Baptista Brazil 2001–2005 
2005–2009 
Giorgio Sacerdoti Italy 2001–2005 
2005–2009 
Jennifer Hillman United States 2007–2011 
Lilia Bautista Philippines 2007–2011 
 
* Messrs El-Naggar and Matsushita decided not to seek a second term of office. However, the DSB extended their terms until the end of March 2000 in order to allow the Selection Committee and the DSB the time necessary to complete the selection process of replacing the outgoing Appellate Body Members. (See WT/DSB/M70, pp. 32-35) 
** Ms. Janow decided not to seek a second term  of office. Her term ended on 11 December 
2007.  
Mr. Christopher Beeby passed away on 19 March 2000. 
Mr. Said El-Naggar passed away on 11 April 2004. Mr. John Lockhart passed away on 13 January 2006. WT/AB/18 
 
- 102 - 
 
  II. FORMER CHAIRPERSONS OF THE APPELLATE BODY 
Name Nationality Term(s) as Chairperson 
Julio Lacarte-Muró Uruguay 7 February 1996 – 
6 February 1997 
7 February 1997 – 
6 February 1998 
Christopher Beeby New Zealand 7 February 1998 – 
6 February 1999 
Said El-Naggar Egypt 7 February 1999 – 
6 February 2000 
Florentino Feliciano Philippines 7 February 2000 – 
6 February 2001 
Claus-Dieter Ehlermann Germany 7 February 2001 – 
10 December 2001 
James Bacchus United States 15 December 2001 – 
14 December 2002 
15 December 2002 – 
10 December 2003 
Georges Abi-Saab Egypt 13 December 2003 – 
12 December 2004 
Yasuhei Taniguchi Japan 17 December 2004 –  
16 December 2005 
Arumugamangalam Venkatachalam Ganesan India 17 December 2005 –  
16 December 2006 
Giorgio Sacerdoti Italy 17 December 2006 –  
16 December 2007 
Luiz Olavo Baptista Brazil 17 December 2007 –  
16 December 2008 
David Unterhalter South Africa 18 December 2008 – 
11 December 2009 
12 December 2009 – 
16 December 2010 
Lilia Bautista Philippines  17 December 2010 –  
14 June 2011 
Jennifer Hillman United States 15 June 2011 –  
10 December 2011 
 WT/AB/18 
 
- 103 - 
 
  ANNEX 3 
APPEALS FILED: 1995–2012 
Year Notices of 
Appeal filed Appeals in 
original 
proceedings Appeals in 
Article 21.5 
proceedings 
1995   0 0 0 
1996   4 4 0 
1997   6 a 6 0 
1998   8 8 0 
1999   9 b 9 0 
2000  13 c 11 2 
2001   9 d 5 4 
2002   7 e 6 1 
2003   6 f 5 1 
2004   5 5 0 
2005  10 8 2 
2006   5 3 2 
2007   4 2 2 
2008 13 10 3 
2009 3 1 2 
2010 3 3 0 
2011 9 9 0 
2012 5 5 0 
Total 119 100 19 
 
a This number includes two Notices of Appeal that were filed at the same time in related 
matters, counted separately: EC – Hormones (Canada)  and EC – Hormones (US).  A single 
Appellate Body report was circulated in relation to those appeals. 
b This number excludes one Notice of Appeal  that was withdrawn by the United States, 
which subsequently filed another Notice of Appeal in relation to the same panel report: US – FSC . 
c This number includes two Notices of Appeal th at were filed at the same time in related 
matters, counted separately: US – 1916 Act (EC)  and US – 1916 Act (Japan).  A single Appellate 
Body report was circulated in relation to those appeals. 
d This number excludes one Notice of Appeal  that was withdrawn by the United States, 
which subsequently filed another Notice of Appeal in relation to the same panel report: US – Line 
Pipe. 
e This number includes one Notice of Appeal that was subsequently withdrawn: India – 
Autos ; and excludes one Notice of Appeal that was withdrawn by the European Communities, 
which subsequently filed another Notice of Appeal in relation to the same panel report: EC – 
Sardines . 
f This number excludes one Notice of Appeal that was withdrawn by the United States, 
which subsequently filed another Notice of Appeal in relation to the same panel report: US – 
Softwood Lumber IV . WT/AB/18 
 
- 104 - 
 
  ANNEX 4 
PERCENTAGE OF PANEL REPORTS APPEALED BY YEAR OF ADOPTION: 1995–2012  a 
 All panel reports Panel reports other than  
Article 21.5 reports b Article 21.5 
panel reports 
Year of 
adoption Panel 
reports 
adopted c Panel 
reports 
appealed d Percentage  
appealed e Panel 
reports 
adopted  Panel 
reports 
appealed  Percentage 
appealed Panel 
reports 
adopted  Panel 
reports 
appealed  Percentag e
appealed  
1996 2 2 100% 2 2 100% 0 0 – 
1997 5 5 100% 5 5 100% 0 0 – 
1998 12 9 75% 12 9 75% 0 0 – 
1999 10 7 70% 9 7 78% 1 0 0% 
2000 19 11 58% 15 9 60% 4 2 50% 
2001 17 12 71% 13 9 69% 4 3 75% 
2002 12 6 50% 11 5 45% 1 1 100% 
2003 10 7 70% 8 5 63% 2 2 100% 
2004 8 6 75% 8 6 75% 0 0 – 
2005 20 12 60% 17 11 65% 3 1 33% 
2006 7 6 86% 4 3 75% 3 3 100% 
2007 10 5 50% 6 3 50% 4 2 50% 
2008 11 9 82% 8 6 75% 3 3 100% 
2009 8 6 75% 6 4 67% 2 2 100% 
2010 5 2 40% 5 2 40% 0 0 – 
2011 8 5 63% 8 5 63% 0 0 – 
2012 18 11 61% 18 11 61% 0 0 – 
Total 182 121 70% 155 102 68% 27 19 71% 
 
a No panel reports were adopted in 1995. 
b Under Article 21.5 of the DSU, a panel may be established to hear a "disagreement as to 
the existence or consistency with a covered agreement of measures taken to comply with the 
recommendations and rulings" of the DSB upon the ad option of a previous panel or Appellate Body 
report. 
c The Panel Reports in EC – Bananas III (Ecuador) , EC – Bananas III (Guatemala and 
Honduras) , EC – Bananas III (Mexico) , and EC – Bananas III (US)  are counted as a single panel 
report. The Panel Reports in US – Steel Safeguards , in EC – Export Subsidies on Sugar , and in 
EC – Chicken Cuts , are also counted as single panel reports in each of those disputes.  
d Panel reports are counted as having been appealed where they are adopted as upheld, 
modified, or reversed by an Appellate Body re port. The number of panel reports appealed may 
differ from the number of Appellate Body reports because some Appellate Body reports address 
more than one panel report. 
e Percentages are rounded to the nearest whole number.  
  WT/AB/18  
 
- 105 - ANNEX 5 
WTO AGREEMENTS ADDRESSED IN APPELLATE BODY REPORTS CIRCULATED THROUGH 2012 a 
Year of 
circulation DSU WTO  
Agmt GATT 
1994 Agriculture SPS ATC TBT TRIMs Anti- 
Dumping Import 
Licensing SCM Safeguards GATS TRIPS 
1996 0 0 2 0 0 0 0 0 0 0 0 0 0 0 
1997 4 1 5 1 0 2 0 0 0 1 1 0 1 1 
1998 7 1 4 1 2 0 0 0 1 1 0 0 0 0 
1999 7 1 6 1 1 0 0 0 0 0 2 1 0 0 
2000 8 1 7 2 0 0 0 0 2 0 5 2 1 1 
2001 7 1 3 1 0 1 1 0 4 0 1 2 0 0 
2002 8 2 4 3 0 0 1 0 1 0 3 1 1 1 
2003 4 2 3 0 1 0 0 0 4 0 1 1 0 0 
2004 2 0 5 0 0 0 0 0 2 0 1 0 0 0 
2005 9 0 5 2 0 0 0 0 2 0 4 0 1 0 
2006 5 0 3 0 0 0 0 0 3 0 2 0 0 0 
2007 5 0 2 1 0 0 0 0 2 0 1 0 0 0 
2008 8 1 9 1 2 0 0 0 3 0 3 0 0 0 
2009 3 0 4 0 0 0 0 0 3 0 0 0 1 0 
2010 1 0 0 0 1 0 0 0 0 0 0 0 0 0 
2011 7 1 6 0 0 0 0 0 1 0 2 0 0 0 
2012 9 0 7 0 0 0 4 0 1 0 2 0 0 0 
Total 94 11 75 13 7 3 2 0 29 2 28 7 5 3 
a No appeals were filed in 1995. WT/AB/18 
 
- 106 - 
 
  ANNEX 6 
PARTICIPANTS AND THIRD PARTICIPANTS IN APPEALS: 1995–2012 
As of the end of 2012, there were 157 WTO Members, of which 70 have participated in appeals in 
which Appellate Body reports were circulated between 1996 and 2012.55 
The rules pursuant to which Members participate in appeals as appellant, other appellant, 
appellee, and third participant are described in section V of this Annual Report.  
I. STATISTICAL SUMMARY 
WTO Member Appellant Other 
appellant Appellee Third 
participant Total 
Antigua & 
Barbuda 0 1 1 0 2 
Argentina 2 3 5 13 23 
Australia 2 2 6 32 42 
Bahrain 0 0 0 1 1 
Barbados 0 0 0 1 1 
Belize 0 0 0 4 4 
Benin 0 0 0 1 1 
Bolivarian 
Republic of 
Venezuela 0 0 1 6 7 
Bolivia, 
Plurinational State of 0 0 0 1 1 
Brazil 5 7 12 26 50 
Cameroon 0 0 0 3 3 
Canada 10 9 18 23 60 
Chad 0 0 0 2 2 
Chile 3 0 2 12 17 
China 10 2 6 35 53 
Colombia 0 0 0 16 16 
Costa Rica 1 0 0 3 4 
Côte d'Ivoire 0 0 0 4 4 
Cuba 0 0 0 4 4 
Dominica 0 0 0 4 4 
Dominican 
Republic 1 0 1 4 6 
Ecuador 0 2 2 10 14 
                                               
55 No appeals were filed and no Appellate Body reports were circulated in 1995, the year the Appellate 
Body was established. WT/AB/18 
 
- 107 - 
 
  WTO Member Appellant Other 
appellant Appellee Third 
participant Total 
Egypt 0 0 0 2 2 
El Salvador 0 0 0 2 2 
European Union 21 15 40 58 134 
Fiji 0 0 0 1 1 
Ghana 0 0 0 2 2 
Grenada 0 0 0 1 1 
Guatemala 1 1 1 8 11 
Guyana 0 0 0 1 1 
Honduras 0 2 2 2 6 
Hong Kong, 
China 0 0 0 8 8 
India 6 2 7 34 49 
Indonesia 0 1 1 1 3 
Israel 0 0 0 1 1 
Jamaica 0 0 0 5 5 
Japan 6 4 11 52 73 
Kenya 0 0 0 1 1 
Korea 3 4 6 25 38 
Kuwait 0 0 0 1 1 
Madagascar 0 0 0 1 1 
Malaysia 1 0 1 0 2 
Malawi 0 0 0 1 1 
Mauritius 0 0 0 2 2 
Mexico 5 4 7 31 47 
New Zealand 0 3 6 13 22 
Nicaragua 0 0 0 4 4 
Nigeria 0 0 0 1 1 
Norway 0 1 1 19 21 
Pakistan 0 0 2 3 5 
Panama 0 0 0 3 3 
Paraguay 0 0 0 5 5 
Peru 0 0 1 4 5 
Philippines 3 0 3 1 7 
Poland 0 0 1 0 1 
Senegal 0 0 0 1 1 
Saint Lucia 0 0 0 4 4 
Saudi Arabia 0 0 0 5 5 
St Kitts & Nevis 0 0 0 1 1 WT/AB/18 
 
- 108 - 
 
  WTO Member Appellant Other 
appellant Appellee Third 
participant Total 
St Vincent &  
the Grenadines 0 0 0 3 3 
Suriname 0 0 0 3 3 
Swaziland 0 0 0 1 1 
Switzerland 0 1 1 0 2 
Chinese Taipei 0 0 0 33 33 
Tanzania 0 0 0 1 1 
Thailand 3 2 5 20 30 
Trinidad 
&Tobago  0 0 0 1 1 
Turkey 1 0 0 9 10 
United States 33 21 71 30 155 
Viet Nam 0 0 0 3 3 
Total 117 87 221 613 1038 
 
 
 
II. DETAILS BY YEAR OF CIRCULATION 
1996 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Gasoline 
WT/DS2/AB/R  United States - - - Brazil 
Venezuela European 
Communities 
Norway 
Japan – Alcoholic Beverages II 
WT/DS8/AB/R, WT/DS10/AB/R 
WT/DS11/AB/R Japan United States Canada 
European 
Communities 
Japan 
United States - - - 
 WT/AB/18 
 
- 109 - 
 
  1997 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Underwear 
WT/DS24/AB/R Costa Rica - - - United States India 
Brazil – Desiccated Coconut 
WT/DS22/AB/R  Philippines Brazil Brazil 
Philippines European 
Communities 
United States 
US – Wool Shirts and Blouses  
WT/DS33/AB/R and Corr.1  India - - - United States - - - 
Canada – Periodicals 
WT/DS31/AB/R  Canada United States Canada 
United States - - - 
EC – Bananas III 
WT/DS27/AB/R  European 
Communities Ecuador 
Guatemala 
Honduras 
Mexico 
United States Ecuador 
European 
Communities 
Guatemala 
Honduras 
Mexico 
United States Belize 
Cameroon 
Colombia 
Costa Rica 
Côte d'Ivoire 
Dominica 
Dominican 
Republic 
Ghana 
Grenada 
Jamaica 
Japan 
Nicaragua 
St Lucia 
St Vincent 
& the 
Grenadines 
Senegal 
Suriname 
Venezuela 
India – Patents (US) 
WT/DS50/AB/R  India - - - United States European 
Communities WT/AB/18 
 
- 110 - 
 
  1998 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
EC – Hormones 
WT/DS26/AB/R, WT/DS48/AB/R  European 
Communities Canada 
United States Canada 
European 
Communities 
United States Australia 
New Zealand 
Norway 
Argentina – Textiles and Apparel  
WT/DS56/AB/R and Corr.1  Argentina - - - United States European 
Communities 
EC – Computer Equipment 
WT/DS62/AB/R, WT/DS67/AB/R 
WT/DS68/AB/R  European 
Communities - - - United States Japan 
EC – Poultry  
WT/DS69/AB/R  Brazil European 
Communities Brazil 
European 
Communities Thailand 
United States 
US – Shrimp  
WT/DS58/AB/R  United States - - - India 
Malaysia 
Pakistan 
Thailand Australia 
Ecuador 
European 
Communities 
Hong Kong, 
China 
Mexico 
Nigeria 
Australia – Salmon 
WT/DS18/AB/R  Australia Canada Australia 
Canada European 
Communities 
India 
Norway 
United States 
Guatemala – Cement I 
WT/DS60/AB/R  Guatemala - - - Mexico United States 
 WT/AB/18 
 
- 111 - 
 
  1999  
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
Korea – Alcoholic Beverages 
WT/DS75/AB/R, WT/DS84/AB/R  Korea - - - European 
Communities 
United States Mexico 
Japan – Agricultural Products II 
WT/DS76/AB/R  Japan United States Japan 
United States Brazil 
European 
Communities 
Brazil – Aircraft 
WT/DS46/AB/R  Brazil Canada Brazil 
Canada European 
Communities 
United States 
Canada – Aircraft 
WT/DS70/AB/R  Canada Brazil Brazil 
Canada European 
Communities 
United States 
India – Quantitative Restrictions  
WT/DS90/AB/R  India - - - United States - - - 
Canada – Dairy  
WT/DS103/AB/R, 
WT/DS113/AB/R and Corr.1  Canada - - - New Zealand 
United States - - - 
Turkey –Textiles 
WT/DS34/AB/R  Turkey - - - India Hong Kong, 
China 
Japan 
Philippines 
Chile – Alcoholic Beverages 
WT/DS87/AB/R, WT/DS110/AB/R  Chile - - - European 
Communities Mexico 
United States 
Argentina – Footwear (EC) 
WT/DS121/AB/R  Argentina European 
Communities Argentina 
European 
Communities Indonesia 
United States 
Korea – Dairy  
WT/DS98/AB/R  Korea European 
Communities Korea 
European 
Communities United States 
 WT/AB/18 
 
- 112 - 
 
  2000  
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – FSC  
WT/DS108/AB/R  United States European 
Communities European 
Communities 
United States Canada 
Japan 
US – Lead and Bismuth II 
WT/DS138/AB/R  United States - - - European 
Communities Brazil 
Mexico 
Canada – Autos 
WT/DS139/AB/R  Canada European 
Communities 
Japan Canada 
European 
Communities 
Japan Korea 
United States 
Brazil – Aircraft  
(Article 21.5 – Canada) 
WT/DS46/AB/RW  Brazil - - - Canada European 
Communities 
United States 
Canada – Aircraft 
(Article 21.5 – Brazil) 
WT/DS70/AB/RW  Brazil - - - Canada European 
Communities 
United States 
US – 1916 Act 
WT/DS136/AB/R, 
WT/DS162/AB/R  United States European 
Communities 
Japan European 
Communities 
Japan 
United States European 
Communities a 
India 
Japan b 
Mexico 
Canada – Term of Patent 
Protection 
WT/DS170/AB/R  Canada - - - United States - - - 
Korea – Various Measures on 
Beef 
WT/DS161/AB/R, 
WT/DS169/AB/R  Korea - - - Australia 
United States Canada 
New Zealand 
US – Certain EC Products  
WT/DS165/AB/R European 
Communities United States European 
Communities 
United States Dominica 
Ecuador 
India 
Jamaica 
Japan 
St Lucia 
US – Wheat Gluten 
WT/DS166/AB/R  United States European 
Communities European 
Communities 
United States Australia 
Canada 
New Zealand 
a In complaint brought by Japan. 
b In complaint brought by the European Communities. WT/AB/18 
 
- 113 - 
 
  2001 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
EC – Bed Linen 
WT/DS141/AB/R  European 
Communities India European 
Communities 
India Egypt 
Japan 
United States 
EC – Asbestos  
WT/DS135/AB/R  Canada European 
Communities Canada 
European 
Communities Brazil 
United States 
Thailand – H-Beams 
WT/DS122/AB/R  Thailand - - - Poland European 
Communities 
Japan 
United States 
US – Lamb  
WT/DS177/AB/R, 
WT/DS178/AB/R  United States Australia 
New Zealand Australia 
New Zealand 
United States European 
Communities 
US – Hot-Rolled Steel 
WT/DS184/AB/R  United States Japan Japan 
United States Brazil 
Canada 
Chile 
European 
Communities 
Korea 
US – Cotton Yarn 
WT/DS192/AB/R  United States - - - Pakistan European 
Communities 
India 
US – Shrimp 
(Article 21.5 – Malaysia) 
WT/DS58/AB/RW  Malaysia - - - United States Australia 
European 
Communities 
Hong Kong, 
China 
India 
Japan 
Mexico 
Thailand 
Mexico – Corn Syrup 
(Article 21.5 – US) 
WT/DS132/AB/RW  Mexico - - - United States European 
Communities 
Canada – Dairy 
(Article 21.5 – New Zealand and 
US) 
WT/DS103/AB/RW, 
WT/DS113/AB/RW  Canada - - - New Zealand 
United States European 
Communities 
 WT/AB/18 
 
- 114 - 
 
  2002  
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Section 211 Appropriations 
Act  
WT/DS176/AB/R  European 
Communities United States European 
Communities 
United States - - - 
US – FSC (Article 21.5 – EC) 
WT/DS108/AB/RW  United States European 
Communities European 
Communities 
United States Australia 
Canada 
India 
Japan 
US – Line Pipe 
WT/DS202/AB/R  United States Korea Korea 
United States Australia 
Canada 
European 
Communities 
Japan 
Mexico 
India – Autos  c 
WT/DS146/AB/R, 
WT/DS175/AB/R India - - - European 
Communities 
United States Korea 
Chile – Price Band System  
WT/DS207/AB/R and Corr.1 Chile - - - Argentina Australia 
Brazil 
Colombia 
Ecuador 
European 
Communities 
Paraguay 
United States 
Venezuela 
EC – Sardines  
WT/DS231/AB/R  European 
Communities - - - Peru Canada 
Chile 
Ecuador 
United States 
Venezuela 
US – Carbon Steel 
WT/DS213/AB/R and Corr.1  United States European 
Communities European 
Communities 
United States Japan 
Norway 
US – Countervailing Measures on 
Certain EC Products 
WT/DS212/AB/R  United States - - - European 
Communities Brazil 
India 
Mexico 
Canada – Dairy 
(Article 21.5 – New Zealand and US II) 
WT/DS103/AB/RW2, 
WT/DS113/AB/RW2  Canada - - - New Zealand 
United States Argentina 
Australia 
European 
Communities 
c India withdrew its appeal the day before the oral hearing was scheduled to proceed. WT/AB/18 
 
- 115 - 
 
 2003 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Offset Act 
(Byrd Amendment ) 
WT/DS217/AB/R, 
WT/DS234/AB/R United States - - - Australia 
Brazil 
Canada 
Chile 
European 
Communities 
India 
Indonesia 
Japan 
Korea 
Mexico 
Thailand Argentina 
Costa Rica 
Hong Kong, 
China 
Israel 
Norway 
EC – Bed Linen 
(Article 21.5 – India ) 
WT/DS141/AB/RW India - - - European 
Communities Japan 
Korea 
United States 
EC – Tube or Pipe Fittings WT/DS219/AB/R Brazil - - - European 
Communities Chile 
Japan 
Mexico 
United States 
US – Steel Safeguards 
WT/DS248/AB/R, 
WT/DS249/AB/R  
WT/DS251/AB/R, 
WT/DS252/AB/R  
WT/DS253/AB/R, 
WT/DS254/AB/R  
WT/DS258/AB/R, 
WT/DS259/AB/R  United States Brazil 
China 
European 
Communities 
Japan 
Korea 
New Zealand 
Norway 
Switzerland Brazil 
China 
European 
Communities 
Japan 
Korea 
New Zealand 
Norway 
Switzerland 
United States Canada 
Cuba 
Mexico 
Chinese Taipei 
Thailand 
Turkey 
Venezuela 
Japan – Apples WT/DS245/AB/R Japan United States Japan 
United States Australia 
Brazil 
European 
Communities 
New Zealand 
Chinese Taipei 
US – Corrosion-Resistant Steel 
Sunset Review 
WT/DS244/AB/R Japan - - - United States Brazil 
Chile 
European 
Communities 
India 
Korea 
Norway 
 WT/AB/18 
 
- 116 - 
 
 2004 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Softwood Lumber IV 
WT/DS257/AB/R  United States Canada Canada 
United States European 
Communities 
India 
Japan 
EC – Tariff Preferences 
WT/DS246/AB/R  European 
Communities - - - India Bolivia 
Brazil 
Colombia 
Costa Rica 
Cuba 
Ecuador 
El Salvador 
Guatemala 
Honduras 
Mauritius 
Nicaragua 
Pakistan 
Panama 
Paraguay 
Peru 
United States 
Venezuela 
US – Softwood Lumber V 
WT/DS264/AB/R  United States Canada Canada 
United States European 
Communities 
India 
Japan 
Canada – Wheat Exports and 
Grain Imports 
WT/DS276/AB/R  United States Canada Canada 
United States Australia 
China 
European 
Communities 
Mexico 
Chinese Taipei 
US – Oil Country Tubular Goods 
Sunset Reviews 
WT/DS268/AB/R  United States Argentina Argentina 
United States European 
Communities 
Japan 
Korea 
Mexico 
Chinese Taipei 
 WT/AB/18 
 
- 117 - 
 
 2005 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Upland Cotton 
WT/DS267/AB/R  United States Brazil Brazil 
United States Argentina 
Australia 
Benin 
Canada 
Chad 
China 
European 
Communities 
India 
New Zealand 
Pakistan 
Paraguay 
Chinese Taipei 
Venezuela 
US – Gambling 
WT/DS285/AB/R and Corr.1  United States Antigua & 
Barbuda Antigua & 
Barbuda 
United States Canada 
European 
Communities 
Japan 
Mexico 
Chinese Taipei 
EC – Export Subsidies on Sugar 
WT/DS265/AB/R, 
WT/DS266/AB/R WT/DS283/AB/R  European 
Communities Australia 
Brazil 
Thailand Australia 
Brazil 
European 
Communities 
Thailand 
 Barbados 
Belize 
Canada 
China 
Colombia 
Côte d'Ivoire 
Cuba 
Fiji 
Guyana 
India 
Jamaica 
Kenya 
Madagascar 
Malawi 
Mauritius 
New Zealand 
Paraguay 
St Kitts & 
Nevis 
Swaziland 
Tanzania 
Trinidad & 
Tobago 
United States 
 WT/AB/18 
 
- 118 - 
 
 2005 (CONT'D) 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
Dominican Republic – Import and 
Sale of Cigarettes 
WT/DS302/AB/R  Dominican 
Republic Honduras Dominican 
Republic 
Honduras China 
El Salvador 
European 
Communities 
Guatemala 
United States 
US – Countervailing Duty 
Investigation on DRAMS 
WT/DS296/AB/R  United States Korea Korea 
United States China 
European 
Communities 
Japan 
Chinese Taipei 
EC – Chicken Cuts 
WT/DS269/AB/R, 
WT/DS286/AB/R and Corr.1  European 
Communities Brazil 
Thailand Brazil 
European 
Communities 
Thailand China 
United States 
Mexico – Anti-Dumping Measures 
on Rice 
WT/DS295/AB/R  Mexico - - - United States China 
European 
Communities 
US – Anti-Dumping Measures on 
Oil Country Tubular Goods 
WT/DS282/AB/R  Mexico United States Mexico 
United States Argentina 
Canada 
China 
European 
Communities 
Japan 
Chinese Taipei 
US – Softwood Lumber IV 
(Article 21.5 – Canada) 
WT/DS257/AB/RW  United States Canada Canada 
United States China 
European 
Communities 
 WT/AB/18 
 
- 119 - 
 
 2006 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – FSC 
(Article 21.5 – EC II) 
WT/DS108/AB/RW2 United States European 
Communities European 
Communities 
United States Australia 
Brazil 
China 
Mexico ‒ Taxes on Soft Drinks 
WT/DS308/AB/R Mexico - - - United States Canada 
China 
European 
Communities 
Guatemala 
Japan 
US – Softwood Lumber VI 
(Article 21.5 – Canada) 
WT/DS277/AB/RW and Corr.1 Canada - - - United States China 
European 
Communities 
US – Zeroing (EC) 
WT/DS294/AB/R and Corr.1 European 
Communities United States United States 
European 
Communities Argentina 
Brazil 
China 
Hong Kong, 
China 
India 
Japan 
Korea 
Mexico 
Norway 
Chinese Taipei 
US – Softwood Lumber V 
(Article 21.5 – Canada) 
WT/DS264/AB/RW Canada - - - United States China 
European 
Communities 
India 
Japan 
New Zealand 
Thailand 
EC – Selected Customs Matters 
WT/DS315/AB/R United States European 
Communities European 
Communities 
United States Argentina 
Australia 
Brazil 
China 
Hong Kong, 
China 
India 
Japan 
Korea 
Chinese Taipei 
 WT/AB/18 
 
- 120 - 
 
 2007 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Zeroing (Japan) 
WT/DS322/AB/R Japan United States United States 
Japan Argentina 
China 
European 
Communities 
Hong Kong, 
China 
India 
Korea 
Mexico 
New Zealand 
Norway 
Thailand 
US – Oil Country Tubular Goods 
Sunset Reviews 
(Article 21.5 – Argentina) 
WT/DS268/AB/RW United States Argentina Argentina 
United States China 
European 
Communities 
Japan 
Korea 
Mexico 
Chile – Price Band System 
(Article 21.5 – Argentina)  
WT/DS207/AB/RW  Chile Argentina Argentina 
Chile Australia 
Brazil 
Canada 
China 
Colombia 
European 
Communities 
Peru 
Thailand 
United States 
Japan – DRAMs (Korea) 
WT/DS336/AB/R and Corr.1 Japan Korea Korea 
Japan European 
Communities 
United States 
Brazil – Retreaded Tyres WT/DS332/AB/R European 
Communities - - - Brazil Argentina 
Australia 
China 
Cuba 
Guatemala 
Japan 
Korea 
Mexico 
Paraguay 
Chinese Taipei 
Thailand 
United States 
 WT/AB/18 
 
- 121 - 
 
 2008 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Stainless Steel (Mexico) 
WT/DS344/AB/R Mexico - - - United States Chile 
China 
European 
Communities 
Japan  
Thailand 
US – Upland Cotton 
(Article 21.5 – Brazil) 
WT/DS267/AB/RW  United States Brazil Brazil 
United States Argentina 
Australia 
Canada 
Chad 
China 
European 
Communities 
India 
Japan 
New Zealand 
Thailand 
US – Shrimp (Thailand)  
WT/DS343/AB/R  
 Thailand 
 United States 
 United States 
Thailand 
 Brazil 
Chile 
China 
European 
Communities 
India 
Japan 
Korea 
Mexico 
Viet Nam 
US – Customs Bond Directive 
WT/DS345/AB/R  
 India United States United States 
India Brazil 
China 
European 
Communities 
Japan 
Thailand 
 WT/AB/18 
 
- 122 - 
 
 2008 (CONT'D) 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Continued Suspension 
WT/DS320/AB/R 
 European 
Communities 
 United States 
 United States 
European 
Communities 
 Australia 
Brazil 
China 
India 
Mexico 
New Zealand 
Norway 
Chinese Taipei 
Canada – Continued Suspension 
WT/DS321/AB/R 
 
 European 
Communities Canada Canada 
European 
Communities Australia 
Brazil 
China 
India 
Mexico 
New Zealand 
Norway 
Chinese Taipei 
India – Additional Import Duties WT/DS360/AB/R United States India India 
United States Australia 
Chile 
European 
Communities 
Japan 
Viet Nam 
EC – Bananas III 
(Article 21.5 – Ecuador II) 
WT/DS27/AB/RW2/ECU and 
Corr.1 European 
Communities 
 Ecuador 
 
 Ecuador 
European 
Communities 
 Belize 
Brazil 
Cameroon 
Colombia 
Côte d'Ivoire 
Dominica 
Dominican 
Republic 
Ghana 
Jamaica 
Japan 
Nicaragua 
Panama 
St Lucia 
St Vincent & the 
Grenadines 
Suriname 
United States WT/AB/18 
 
- 123 - 
 
 2008 (CONT'D) 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
EC – Bananas III 
(Article 21.5 – US) 
WT/DS27/AB/RW/USA and 
Corr.1 
 European 
Communities - - - United States Belize 
Brazil 
Cameroon 
Colombia 
Côte d'Ivoire 
Dominica 
Dominican 
Republic 
Ecuador 
Jamaica 
Japan 
Mexico 
Nicaragua 
Panama St Lucia 
St Vincent & the 
Grenadines 
Suriname 
China – Auto Parts (EC) 
WT/DS339/AB/R  China - - - European 
Communities 
 Argentina 
Australia 
Brazil 
Japan 
Mexico 
Chinese Taipei 
Thailand 
China – Auto Parts (US) WT/DS340/AB/R  China - - - United States 
 Argentina 
Australia 
Brazil 
Japan 
Mexico 
Chinese Taipei 
Thailand 
China – Auto Parts (Canada) 
WT/DS342/AB/R  China - - - Canada Argentina 
Australia 
Brazil 
Japan 
Mexico 
Chinese Taipei 
Thailand 
 WT/AB/18 
 
- 124 - 
 
 2009 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Continued Zeroing 
WT/DS350/AB/R  European 
Communities United States European 
Communities 
United States Brazil 
China 
Egypt 
India 
Japan 
Korea 
Mexico 
Norway 
Chinese Taipei 
Thailand 
US – Zeroing (EC) 
(Article 21.5 – EC) 
WT/DS294/AB/RW and Corr.1 European 
Communities United States European 
Communities 
United States India 
Japan 
Korea 
Mexico 
Norway 
Chinese Taipei 
Thailand 
US – Zeroing (Japan)  
(Article 21.5 – Japan) 
WT/DS322/AB/RW United States - - - Japan China 
European 
Communities 
Hong Kong, 
China 
Korea 
Mexico 
Norway 
Chinese Taipei 
Thailand 
China – Publications and 
Audiovisual Products 
WT/DS363/AB/R China United States China 
United States Australia 
European 
Communities 
Japan 
Korea 
Chinese Taipei 
 WT/AB/18 
 
- 125 - 
 
 2010 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
Australia – Apples 
WT/DS367/AB/R Australia New Zealand New Zealand 
Australia Chile 
European Union 
Japan 
Pakistan 
Chinese Taipei 
United States 
 
 
2011 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Anti-Dumping and 
Countervailing Duties (China) 
WT/DS379/AB/R China - - -  United States Argentina 
Australia 
Bahrain 
Brazil 
Canada 
European Union 
India 
Japan 
Kuwait 
Mexico 
Norway 
Saudi Arabia 
Chinese Taipei 
Turkey 
EC and certain member States – 
Large Civil Aircraft 
WT/DS316/AB/R European 
Union United States United States 
European 
Union Australia 
Brazil 
Canada 
China 
Japan 
Korea 
Thailand – Cigarettes 
(Philippines) 
WT/DS371/AB/R Thailand - - -  Philippines Australia 
China 
European Union 
India 
Chinese Taipei 
United States 
 WT/AB/18 
 
- 126 - 
 
 2011 (CONT'D)  
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
EC – Fasteners (China) 
WT/DS397/AB/R European 
Union China China  
European 
Union Brazil 
Canada 
Chile 
Colombia 
India 
Japan 
Norway 
Chinese Taipei 
Thailand 
Turkey 
United States 
US – Tyres (China) 
WT/DS399/AB/R China - - -  United States European Union 
Japan 
Chinese Taipei 
Turkey 
Viet Nam 
Philippines – Distilled Spirits 
(European Union)  
WT/DS396/AB/R Philippines European 
Union European 
Union 
Philippines 
 Australia 
China 
Colombia 
India 
Mexico 
Chinese Taipei 
Thailand 
Philippines – Distilled Spirits 
(United States)  
WT/DS403/AB/R  Philippines - - - United States Australia 
China 
Colombia 
India 
Mexico 
Chinese Taipei 
Thailand 
 WT/AB/18 
 
- 127 - 
 
 2012 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
China –  Raw Materials 
(United States) 
WT/DS394/AB/R  China United States China 
United States Argentina 
Brazil 
Canada 
Chile 
Colombia 
Ecuador 
India 
Japan 
Korea 
Norway 
Saudi Arabia 
Chinese Taipei 
Turkey 
China – Raw Materials 
(European Union) 
WT/DS395/AB/R China European 
Union China 
European 
Union Argentina 
Brazil 
Canada 
Chile 
Colombia 
Ecuador 
India 
Japan 
Korea 
Norway 
Saudi Arabia 
Chinese Taipei 
Turkey 
China – Raw Materials (Mexico) 
WT/DS398/AB/R China Mexico China 
Mexico Argentina 
Brazil 
Canada 
Chile 
Colombia 
Ecuador 
India 
Japan 
Korea 
Norway 
Saudi Arabia 
Chinese Taipei 
Turkey 
 
 WT/AB/18 
 
- 128 - 
 
 2012 (CONT'D) 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Large Civil Aircraft 
(2nd complaint) 
WT/DS353/AB/R European 
Union United States United States 
European 
Union Australia 
Brazil 
Canada 
China 
Japan 
Korea 
US – Clove Cigarettes 
WT/DS406/AB/R United States - - -  Indonesia Brazil 
Colombia 
Dominican 
Republic 
European Union 
Guatemala 
Mexico 
Norway 
Turkey 
US – Tuna II (Mexico) WT/DS381/AB/R United States Mexico Mexico 
United States Argentina  
Australia 
Brazil 
Canada 
China 
Ecuador 
Guatemala 
Japan 
Korea 
New Zealand 
Chinese Taipei 
Thailand 
Turkey 
Venezuela 
US – COOL (Canada) 
WT/DS384/AB/R United States Canada Canada 
United States 
 Argentina  
Australia 
Brazil 
China 
Colombia 
European Union 
Guatemala 
India 
Japan 
Korea 
New Zealand 
Peru 
Chinese Taipei 
 WT/AB/18 
 
- 129 - 
 
 2012 (CONT'D) 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – COOL (Mexico) 
WT/DS386/AB/R United States Mexico Mexico 
United States Argentina  
Australia 
Brazil 
China 
Colombia 
European Union 
Guatemala 
India 
Japan 
Korea 
New Zealand 
Peru 
Chinese Taipei 
China – GOES 
WT/DS414/AB/R China - - - United States Argentina  
European Union 
Honduras 
India 
Japan 
Korea 
Saudi Arabia 
Viet Nam 
 WT/AB/18 
 
- 130 - 
 
 ANNEX 7 
 
APPELLATE BODY SECRETAR IAT PARTICIPATION IN  
TECHNICAL ASSISTANCE, TRAINING, AND OTHER ACTIVITIES IN 2012 
I. TECHNICAL ASSISTANCE ACTIVITIES – 2012 
Course / Seminar Location Dates 
FAO-INFOPESCA Regional 
Workshop on Dispute Settlement Tegucigalpa, Honduras 22-24 May 2012 
Advanced Trade Policy Course 
- Dispute Settlement Module 
(French) Geneva, Switzerland 25-26 June 2012 
Regional Trade Policy Course - 
Dispute Settlement Module  Manzini, Swaziland 9-13 July 2012 
Regional Workshop on Dispute 
Settlement for English-
Speaking African Countries Johannesburg,  
South Africa 28-31 August 2012 
Regional Trade Policy Course – 
Basic Principles Module New Delhi, India 27-28 September 2012  
Islamic Development Bank 
Seminar on "WTO Dispute 
Settlement and the Developing 
Countries" Istanbul, Turkey 1-3 October 2012 
National Seminar on Dispute 
Settlement Yogyakarta, Indonesia 9-11 October 2012 
Dispute Settlement Seminar at 
Universidad Externado Bogotá, Colombia 17-22 October 2012 
Regional Workshop on WTO 
Dispute Settlement for Central 
and Eastern Europe, Central 
and the Caucasus (CEECAC) Vienna, Austria 21-25 October 2012 
Regional Trade Policy Course – 
Dispute Settlement Module New Delhi, India 5-8 November 2012 
Short Trade Policy Course for 
ALADI Members  Montevideo, Uruguay 15-16 November 2012 
Advanced Trade Policy Course 
– Dispute Settlement Module 
(English) Geneva, Switzerland 19-20 November 2012 
WTO/ACWL/ICTSD Regional 
Workshop on Dispute 
Settlement New Delhi, India 26-30 November 2012 WT/AB/18 
 
- 131 - 
 
 Course / Seminar Location Dates 
Regional Trade Policy Course 
for Arab Countries with 
IMF/CEF – Dispute Settlement 
Module Kuwait City, Kuwait 1-5 December 2012 
Advanced Dispute Settlement 
Course (Spanish) Geneva, Switzerland 3-7 December 2012 
 
 
 
II. OTHER ACTIVITIES – 2012 
Activity Location Dates 
ELSA Moot Court Competition (Regional Round) Washington D.C., US 29 February- 
3 March 2012 
ELSA Moot Court Competition 
(Regional Round) Jakarta, Indonesia 1-9 March 2012 
IELPO Moot Court Competition Barcelona, Spain 21-22 June 2012 
Caribbean Academy for Law 
and Court Administration 
(CALCA) WTO Law and Policy Port of Spain, 
Trinidad & Tobago 22-26 September 2012 
   WT/AB/18 
 
- 132 - 
 
 ANNEX 8 
WTO DISPUTE SETTLEMENT REPORTS AND ARBITRATION AWARDS: 1995–2012 
Short title Full case title and citation 
Argentina – Ceramic Tiles Panel Report, Argentina – Definitive Anti-Dumping Measures on 
Imports of Ceramic Floor Tiles from Italy , WT/DS189/R, adopted 
5 November 2001, DSR 2001:XII, 6241 
Argentina – Footwear (EC) Appellate Body Report, Argentina – Safeguard Measures on Imports 
of Footwear , WT/DS121/AB/R, adopted 12 January 2000, 
DSR 2000:I, 515 
Argentina – Footwear (EC) Panel Report, Argentina – Safeguard Measures on Imports of 
Footwear , WT/DS121/R, adopted 12 January 2000, as modified by 
Appellate Body Report WT/DS121/AB/R, DSR 2000:II, 575 
Argentina – Hides and 
Leather Panel Report, Argentina – Measures Affecting the Export of Bovine 
Hides and Import of Finished Leather , WT/DS155/R and Corr.1, 
adopted 16 February 2001, DSR 2001:V, 1779 
Argentina – Hides and 
Leather  
(Article 21.3(c)) Award of the Arbitrator, Argentina – Measures Affecting the Export 
of Bovine Hides and Import of Finished Leather – Arbitration under 
Article 21.3(c) of the DSU , WT/DS155/10, 31 August 2001, 
DSR 2001:XII, 6013 
Argentina – Poultry 
Anti-Dumping Duties Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry 
from Brazil , WT/DS241/R, adopted 19 May 2003, DSR 2003:V, 1727 
Argentina – Preserved 
Peaches Panel Report, Argentina – Definitive Safeguard Measure on Imports 
of Preserved Peaches , WT/DS238/R, adopted 15 April 2003, 
DSR 2003:III, 1037 
Argentina – Textiles and 
Apparel Appellate Body Report, Argentina – Measures Affecting Imports of 
Footwear, Textiles, Apparel and Other Items , WT/DS56/AB/R and 
Corr.1, adopted 22 April 1998, DSR 1998:III, 1003 
Argentina – Textiles and 
Apparel Panel Report, Argentina – Measures Affecting Imports of Footwear, 
Textiles, Apparel and Other Items , WT/DS56/R, adopted 22 April 
1998, as modified by Appellate Body Report WT/DS56/AB/R, 
DSR 1998:III, 1033 
Australia – Apples Appellate Body Report, Australia – Measures Affecting the 
Importation of Apples from New Zealand , WT/DS367/AB/R, adopted 
17 December 2010, DSR 2010:V, 2175 
Australia – Apples Panel Report, Australia – Measures Affecting the Importation of 
Apples from New Zealand , WT/DS367/R, adopted 17 December 
2010, as modified by Appellate Body Report WT/DS367/AB/R, 
DSR 2010:VI, 2371 
Australia – Automotive 
Leather II Panel Report, Australia – Subsidies Provided to Producers and 
Exporters of Automotive Leather , WT/DS126/R, adopted 16 June 
1999, DSR 1999:III, 951 
Australia – Automotive 
Leather II  
(Article 21.5 – US) Panel Report, Australia – Subsidies Provided to Producers and 
Exporters of Automotive Leather – Recourse to Article 21.5 of the 
DSU by the United States , WT/DS126/RW and Corr.1, adopted 
11 February 2000, DSR 2000:III, 1189 
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation 
of Salmon , WT/DS18/AB/R, adopted 6 November 1998, 
DSR 1998:VIII, 3327 WT/AB/18 
 
- 133 - 
 
 Short title Full case title and citation 
Australia – Salmon Panel Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/R and Corr.1, adopted 6 November 1998, as modified by 
Appellate Body Report WT/D S18/AB/R, DSR 1998:VIII, 3407 
Australia – Salmon 
(Article 21.3(c)) Award of the Arbitrator, Australia – Measures Affecting Importation 
of Salmon – Arbitration under Article 21.3(c) of the DSU , 
WT/DS18/9, 23 February 1999, DSR 1999:I, 267 
Australia – Salmon 
(Article 21.5 – Canada) Panel Report, Australia – Measures Affecting Importation of Salmon 
– Recourse to Article 21.5 of the DSU by Canada , WT/DS18/RW, 
adopted 20 March 2000, DSR 2000:IV, 2031 
Brazil – Aircraft Appellate Body Report, Brazil – Export Financing Programme for 
Aircraft , WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, 
1161 
Brazil – Aircraft Panel Report, Brazil – Export Financing Programme for Aircraft , 
WT/DS46/R, adopted 20 August 1999, as modified by Appellate Body Report WT/DS46/AB/R, DSR 1999:III, 1221 
Brazil – Aircraft 
(Article 21.5 – Canada) Appellate Body Report, Brazil – Export Financing Programme for 
Aircraft – Recourse by Canada to Article 21.5 of the DSU , 
WT/DS46/AB/RW, adopted 4 Au gust 2000, DSR 2000:VIII, 4067 
Brazil – Aircraft 
(Article 21.5 – Canada) Panel Report, Brazil – Export Financing Programme for Aircraft – 
Recourse by Canada to Article 21.5 of the DSU , WT/DS46/RW, 
adopted 4 August 2000, as modified by Appellate Body Report WT/DS46/AB/RW, DSR 2000:IX, 4093 
Brazil – Aircraft 
(Article 21.5 – Canada II) Panel Report, Brazil – Export Financing Programme for Aircraft – 
Second Recourse by Canada to Article 21.5 of the DSU , 
WT/DS46/RW/2, adopted 23 August 2001, DSR 2001:X, 5481 
Brazil – Aircraft 
(Article 22.6 – Brazil) Decision by the Arbitrators, Brazil – Export Financing Programme for 
Aircraft – Recourse to Arbitration by Brazil under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, WT/DS46/ARB, 
28 August 2000, DSR 2002:I, 19 
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated 
Coconut , WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, 167 
Brazil – Desiccated Coconut Panel Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/R, adopted 20 March 1997, upheld by Appellate Body 
Report WT/DS22/AB/R, DSR 1997:I, 189 
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of 
Retreaded Tyres , WT/DS332/AB/R, adopted 17 December 2007, 
DSR 2007:IV, 1527 
Brazil – Retreaded Tyres Panel Report, Brazil – Measures Affecting Imports of Retreaded 
Tyres , WT/DS332/R, adopted 17 December 2007, as modified by 
Appellate Body Report WT/DS332/AB/R, DSR 2007:V, 1649 
Brazil – Retreaded Tyres 
(Article 21.3(c)) Award of the Arbitrator, Brazil – Measures Affecting Imports of 
Retreaded Tyres – Arbitration under Article 21.3(c) of the DSU , 
WT/DS332/16, 29 August 2008, DSR 2008:XX, 8581 
Canada – Aircraft Appellate Body Report, Canada – Measures Affecting the Export of 
Civilian Aircraft , WT/DS70/AB/R, adopted 20 August 1999, 
DSR 1999:III, 1377 
Canada – Aircraft Panel Report, Canada – Measures Affecting the Export of Civilian 
Aircraft , WT/DS70/R, adopted 20 August 1999, upheld by Appellate 
Body Report WT/DS70/AB/R, DSR 1999:IV, 1443 WT/AB/18 
 
- 134 - 
 
 Short title Full case title and citation 
Canada – Aircraft 
(Article 21.5 – Brazil) Appellate Body Report, Canada – Measures Affecting the Export of 
Civilian Aircraft – Recourse by Brazil to Article 21.5 of the DSU , 
WT/DS70/AB/RW, adopted 4 August 2000, DSR 2000:IX, 4299 
Canada – Aircraft 
(Article 21.5 – Brazil) Panel Report, Canada – Measures Affecting the Export of Civilian 
Aircraft – Recourse by Brazil to Article 21.5 of the DSU , 
WT/DS70/RW, adopted 4 August 2000, as modified by Appellate 
Body Report WT/DS70/AB/RW, DSR 2000:IX, 4315 
Canada – Aircraft Credits 
and Guarantees Panel Report, Canada – Export Credits and Loan Guarantees for 
Regional Aircraft , WT/DS222/R and Corr.1, adopted 19 February 
2002, DSR 2002:III, 849 
Canada – Aircraft Credits 
and Guarantees 
(Article 22.6 – Canada) Decision by the Arbitrator, Canada – Export Credits and Loan 
Guarantees for Regional Aircraft – Recourse to Arbitration by 
Canada under Article 22.6 of the DSU and Article 4.11 of the SCM 
Agreement, WT/DS222/ARB, 17 Fe bruary 2003, DSR 2003:III, 1187 
Canada – Autos Appellate Body Report, Canada – Certain Measures Affecting the 
Automotive Industry , WT/DS139/AB/R, WT/DS142/AB/R, adopted 
19 June 2000, DSR 2000:VI, 2985 
Canada – Autos Panel Report, Canada – Certain Measures Affecting the Automotive 
Industry , WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as 
modified by Appellate Body Report WT/DS139/AB/R, 
WT/DS142/AB/R, DSR 2000:VII, 3043 
Canada – Autos 
(Article 21.3(c)) Award of the Arbitrator, Canada – Certain Measures Affecting the 
Automotive Industry – Arbitration under Article 21.3(c) of the DSU , 
WT/DS139/12, WT/DS142/12, 4 October 2000, DSR 2000:X, 5079 
Canada – Continued 
Suspension Appellate Body Report, Canada – Continued Suspension of 
Obligations in the EC – Hormones Dispute , WT/DS321/AB/R, 
adopted 14 November 2008, DSR 2008:XIV, 5373 
Canada – Continued 
Suspension Panel Report, Canada – Continued Suspension of Obligations in the 
EC – Hormones Dispute , WT/DS321/R, adopted 14 November 2008, 
as modified by Appellate Body Report WT/DS321/AB/R, DSR 2008:XV, 5757-DSR 2008:XVII, 6717 
Canada – Dairy Appellate Body Report, Canada – Measures Affecting the 
Importation of Milk and the Exportation of Dairy Products , 
WT/DS103/AB/R, WT/DS113/AB/R and Corr.1, adopted 27 October 
1999, DSR 1999:V, 2057 
Canada – Dairy Panel Report, Canada – Measures Affecting the Importation of Milk 
and the Exportation of Dairy Products , WT/DS103/R, WT/DS113/R, 
adopted 27 October 1999, as modified by Appellate Body Report 
WT/DS103/AB/R, WT/DS113/AB/R, DSR 1999:VI, 2097 
Canada – Dairy 
(Article 21.5 – New Zealand 
and US) Appellate Body Report, Canada – Measures Affecting the 
Importation of Milk and the Exportation of Dairy Products – 
Recourse to Article 21.5 of the DSU by New Zealand and the United 
States , WT/DS103/AB/RW, WT/DS113/AB/RW, adopted 
18 December 2001, DSR 2001:XIII, 6829 
Canada – Dairy 
(Article 21.5 – New Zealand 
and US) Panel Report, Canada – Measures Affecting the Importation of Milk 
and the Exportation of Dairy Products – Recourse to Article 21.5 of 
the DSU by New Zealand and the United States , WT/DS103/RW, 
WT/DS113/RW, adopted 18 December 2001, as reversed by 
Appellate Body Report WT/DS103/AB/RW, WT/DS113/AB/RW, 
DSR 2001:XIII, 6865 WT/AB/18 
 
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Canada – Dairy 
(Article 21.5 – New Zealand 
and US II) Appellate Body Report, Canada – Measures Affecting the 
Importation of Milk and the Exportation of Dairy Products – Second 
Recourse to Article 21.5 of the DSU by New Zealand and the United 
States , WT/DS103/AB/RW2, WT/DS113/AB/RW2, adopted 17 
January 2003, DSR 2003:I, 213 
Canada – Dairy 
(Article 21.5 – New Zealand and US II) Panel Report, Canada – Measures Affecting the Importation of Milk 
and the Exportation of Dairy Products – Second Recourse to Article 21.5 of the DSU by New Zealand and the United States , 
WT/DS103/RW2, WT/DS113/RW2, adopted 17 January 2003, as 
modified by Appellate Body Report WT/DS103/AB/RW2, WT/DS113/AB/RW2, DSR 2003:I, 255 
Canada – Patent Term Appellate Body Report, Canada – Term of Patent Protection , 
WT/DS170/AB/R, adopted 12 October 2000, DSR 2000:X, 5093 
Canada – Feed-in Tariff 
Program Panel Report, Canada – Measures Relating to the Feed-in Tariff 
Program , WT/DS426/R and Add.1, circulated to WTO Members 
19 December 2012 [ appeal in progress ] 
Canada – Patent Term Panel Report, Canada – Term of Patent Protection , WT/DS170/R, 
adopted 12 October 2000, upheld by Appellate Body Report 
WT/DS170/AB/R, DSR 2000:XI, 5121 
Canada – Patent Term 
(Article 21.3(c)) Award of the Arbitrator, Canada – Term of Patent Protection – 
Arbitration under Article 21.3(c) of the DSU , WT/DS170/10, 
28 February 2001, DSR 2001:V, 2031 
Canada – Periodicals Appellate Body Report, Canada – Certain Measures Concerning 
Periodicals , WT/DS31/AB/R, adopted 30 July 1997, DSR 1997:I, 449 
Canada – Periodicals Panel Report, Canada – Certain Measures Concerning Periodicals , 
WT/DS31/R and Corr.1, adopted 30 July 1997, as modified by Appellate Body Report WT/DS31/AB/R, DSR 1997:I, 481 
Canada – Pharmaceutical 
Patents Panel Report, Canada – Patent Protection of Pharmaceutical 
Products , WT/DS114/R, adopted 7 April 2000, DSR 2000:V, 2289 
Canada – Pharmaceutical 
Patents  
(Article 21.3(c)) Award of the Arbitrator, Canada – Patent Protection of 
Pharmaceutical Products – Arbitration under Article 21.3(c) of the 
DSU, WT/DS114/13, 18 August 2000, DSR 2002:I, 3 
Canada – Renewable 
Energy Panel Report, Canada – Certain Measures Affecting the Renewable 
Energy Generation Sector , WT/DS412/R and Add.1, circulated to 
WTO Members 19 December 2012 [ appeal in progress ] 
Canada – Wheat Exports 
and Grain Imports Appellate Body Report, Canada – Measures Relating to Exports of 
Wheat and Treatment of Imported Grain , WT/DS276/AB/R, adopted 
27 September 2004, DSR 2004:VI, 2739 
Canada – Wheat Exports 
and Grain Imports Panel Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/R, adopted 27 September 
2004, upheld by Appellate Body Report WT/DS276/AB/R, 
DSR 2004:VI, 2817 
Chile – Alcoholic Beverages Appellate Body Report, Chile – Taxes on Alcoholic Beverages , 
WT/DS87/AB/R, WT/DS110/AB/R, adopted 12 January 2000, 
DSR 2000:I, 281 
Chile – Alcoholic Beverages Panel Report, Chile – Taxes on Alcoholic Beverages , WT/DS87/R, 
WT/DS110/R, adopted 12 January 2000, as modified by Appellate 
Body Report WT/DS87/AB/R, WT/DS110/AB/R, DSR 2000:I, 303 
Chile – Alcoholic Beverages 
(Article 21.3(c)) Award of the Arbitrator, Chile – Taxes on Alcoholic Beverages – 
Arbitration under Article 21.3(c) of the DSU , WT/DS87/15, 
WT/DS110/14, 23 May 2000, DSR 2000:V, 2583 WT/AB/18 
 
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Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard 
Measures Relating to Certain Agricultural Products , 
WT/DS207/AB/R, adopted 23 Oc tober 2002, DSR 2002:VIII, 3045 
(Corr.1, DSR 2006:XII, 5473) 
Chile – Price Band System Panel Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/R, adopted 
23 October 2002, as modified by Appellate Body Report WT/DS207AB/R, DS R 2002:VIII, 3127 
Chile – Price Band System 
(Article 21.3(c)) Award of the Arbitrator, Chile – Price Band System and Safeguard 
Measures Relating to Certain Agricultural Products – Arbitration 
under Article 21.3(c) of the DSU , WT/DS207/13, 17 March 2003, 
DSR 2003:III, 1237 
Chile – Price Band System 
(Article 21.5 – Argentina) Appellate Body Report, Chile – Price Band System and Safeguard 
Measures Relating to Certain Agri cultural Products – Recourse to 
Article 21.5 of the DSU by Argentina , WT/DS207/AB/RW, adopted 
22 May 2007, DSR 2007:II, 513 
Chile – Price Band System 
(Article 21.5 – Argentina) Panel Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products – Recourse to Article 21.5 
of the DSU by Argentina , WT/DS207/RW and Corr.1, adopted 
22 May 2007, upheld by Appellate Body Report WT/DS207/AB/RW, 
DSR 2007:II-III, 613 
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of 
Automobile Parts , WT/DS339/AB/R / WT/DS340/AB/R / 
WT/DS342/AB/R, adopted 12 January 2009, DSR 2009:I, 3 
China – Auto Parts Panel Reports, China – Measures Affecting Imports of Automobile 
Parts, WT/DS339/R / WT/DS340/R / WT/DS342/R / and Add.1 and 
Add.2, adopted 12 January 2009, upheld (WT/DS339/R) and as 
modified (WT/DS340/R / WT/DS342/R) by Appellate Body Reports 
WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R,  
DSR 2009:I, 119-DSR 2009:II, 625 
China – Electronic Payment 
Services Panel Report, China – Measures Affecting Electronic Payment 
Services , WT/DS413/R, adopted 31 August 2012 
China – GOES Appellate Body Report, China – Countervailing and Anti-Dumping 
Duties on Grain Oriented Flat-Rolled Electrical Steel from the 
United States , WT/DS414/AB/R, adopted 16 November 2012 
China – GOES Panel Report, China – Countervailing and Anti-Dumping Duties on 
Grain Oriented Flat-Rolled Electrical Steel from the United States , 
WT/DS414/R, adopted 16 November 2012, upheld by Appellate 
Body Report WT/DS414/AB/R 
China – Intellectual 
Property Rights Panel Report, China – Measures Affecting the Protection and 
Enforcement of Intellectual Property Rights , WT/DS362/R, adopted 
20 March 2009, DSR 2009:V, 2097 
China – Publications and 
Audiovisual Products Appellate Body Report, China –  Measures Affecting Trading Rights 
and Distribution Services for Certain Publications and Audiovisual Entertainment Products , WT/DS363/AB/R, adopted 19 January 
2010, DSR 2010:I, 3 
China – Publications and 
Audiovisual Products Panel Report, China –  Measures Affecting Trading Rights and 
Distribution Services for Certain Publications and Audiovisual 
Entertainment Products , WT/DS363/R and Corr.1, adopted 
19 January 2010, as modified by Appellate Body Report 
WT/DS363/AB/R, DSR 2010:II, 261 WT/AB/18 
 
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China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation 
of Various Raw Materials , WT/DS394/AB/R / WT/DS395/AB/R / 
WT/DS398/AB/R, adopted 22 February 2012 
China – Raw Materials  Panel Reports, China – Measures Related to the Exportation of 
Various Raw Materials , WT/DS394/R / WT/DS395/R / WT/DS398/R / 
and Corr.1, adopted 22 February 2012, as modified by Appellate 
Body Reports WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R 
Colombia – Ports of Entry Panel Report, Colombia – Indicative Prices and Restrictions on Ports 
of Entry , WT/DS366/R and Corr.1, adopted 20 May 2009, 
DSR 2009:VI, 2535 
Colombia – Ports of Entry 
(Article 21.3(c)) Award of the Arbitrator, Colombia – Indicative Prices and 
Restrictions on Ports of Entry – Arbitration under Article 21.3(c) of 
the DSU , WT/DS366/13, 2 October 2009, DSR 2009:IX, 3819 
Dominican Republic – 
Import and Sale of 
Cigarettes Appellate Body Report, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R, 
adopted 19 May 2005, DSR 2005:XV, 7367 
Dominican Republic – 
Import and Sale of 
Cigarettes Panel Report, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/R, adopted 
19 May 2005, as modified by Appellate Body Report 
WT/DS302/AB/R, DSR 2005:XV, 7425 
Dominican Republic – 
Import and Sale of 
Cigarettes  
(Article 21.3(c)) Report of the Arbitrator, Dominican Republic – Measures Affecting 
the Importation and Internal Sale of Cigarettes  – Arbitration under 
Article 21.3(c) of the DSU , WT/DS302/17, 29 August 2005, 
DSR 2005:XXIII, 11665 
Dominican Republic – 
Safeguard Measures Panel Report, Dominican Republic – Safeguard Measures on Imports 
of Polypropylene Bags and Tubular Fabric , WT/DS415/R, 
WT/DS416/R, WT/DS417/R, WT/DS418/R, adopted 22 February 
2012 
EC – The ACP-EC 
Partnership Agreement Award of the Arbitrator, European Communities – The ACP-EC 
Partnership Agreement – Recourse to Arbitration Pursuant to the Decision of 14 November 2001 , WT/L/616, 1 August 2005, 
DSR 2005:XXIII, 11669 
EC – The ACP-EC 
Partnership Agreement II Award of the Arbitrator, European Communities – The ACP-EC 
Partnership Agreement – Second Recourse to Arbitration Pursuant to 
the Decision of 14 November 2001 , WT/L/625, 27 October 2005, 
DSR 2005:XXIII, 11703 
EC – Approval and 
Marketing of Biotech 
Products Panel Reports, European Communities – Measures Affecting the 
Approval and Marketing of Biotech Products , WT/DS291/R / 
WT/DS292/R / WT/DS293/R, Add.1 to Add.9, and Corr.1, adopted 
21 November 2006, DSR 2006:III-VIII, 847 
EC – Asbestos Appellate Body Report, European Communities – Measures Affecting 
Asbestos and Asbestos-Containing Products , WT/DS135/AB/R, 
adopted 5 April 2001, DSR 2001:VII, 3243 
EC – Asbestos Panel Report, European Communities – Measures Affecting Asbestos 
and Asbestos-Containing Products , WT/DS135/R and Add.1, adopted 
5 April 2001, as modified by Appellate Body Report 
WT/DS135/AB/R, DSR 2001:VIII, 3305 
EC – Bananas III Appellate Body Report, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas , WT/DS27/AB/R, 
adopted 25 September 1997, DSR 1997:II, 591 WT/AB/18 
 
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EC – Bananas III (Ecuador) Panel Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas, Complaint by Ecuador , 
WT/DS27/R/ECU, adopted 25 September 1997, as modified by 
Appellate Body Report WT/DS27/AB/R, DSR 1997:III, 1085 
EC – Bananas III 
(Guatemala and Honduras) Panel Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas, Complaint by Guatemala and 
Honduras , WT/DS27/R/GTM, WT/DS27/R/HND, adopted 25 
September 1997, as modified by Appellate Body Report 
WT/DS27/AB/R, DSR 1997:II, 695 
EC – Bananas III (Mexico) Panel Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas, Complaint by Mexico , 
WT/DS27/R/MEX, adopted 25 September 1997, as modified by 
Appellate Body Report WT/DS27/AB/R, DSR 1997:II, 803 
EC – Bananas III (US) Panel Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas, Complaint by the United States , 
WT/DS27/R/USA, adopted 25 September 1997, as modified by 
Appellate Body Report WT/DS27/AB/R, DSR 1997:II, 943 
EC – Bananas III 
(Article 21.3(c)) Award of the Arbitrator, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Arbitration under 
Article 21.3(c) of the DSU , WT/DS27/15, 7 January 1998, 
DSR 1998:I, 3 
EC – Bananas III 
(Article 21.5 – EC) Panel Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas – Recourse to Article 21.5 of the 
DSU by the European Communities , WT/DS27/RW/EEC, 12 April 
1999, and Corr.1, unadopted, DSR 1999:II, 783 
EC – Bananas III 
(Article 21.5 – Ecuador) Panel Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas – Recourse to Article 21.5 of the DSU by Ecuador , WT/DS27/RW/ECU, adopted 6 May 1999, 
DSR 1999:II, 803 
EC – Bananas III 
(Article 21.5 – Ecuador II)  Appellate Body Report, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Second Recourse to 
Article 21.5 of the DSU by Ecuador , WT/DS27/AB/RW2/ECU, 
adopted 11 December 2008, and Corr.1, DSR 2008:XVIII, 7165 
EC – Bananas III 
(Article 21.5 – Ecuador II) Panel Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas – Second Recourse to Article 21.5 
of the DSU by Ecuador , WT/DS27/RW2/ECU, adopted 11 December 
2008, as modified by Appellate Body Report WT/DS27/AB/RW2/ECU, DSR 2008:XVIII, 7329 
EC – Bananas III 
(Article 21.5 – US) Appellate Body Report, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Recourse to 
Article 21.5 of the DSU by the United States , WT/DS27/AB/RW/USA 
and Corr.1, adopted 22 Dece mber 2008, DSR 2008:XVIII, 7165 
EC – Bananas III 
(Article 21.5 – US) Panel Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas – Recourse to Article 21.5 of the DSU by the United States , WT/DS27/RW/USA and Corr.1, adopted 
22 December 2008, upheld by Appellate Body Report 
WT/DS27/AB/RW/USA, DSR 2008:XIX, 7761 
EC – Bananas III (Ecuador) 
(Article 22.6 – EC) Decision by the Arbitrators, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Recourse to 
Arbitration by the European Communities under Article 22.6 of the 
DSU, WT/DS27/ARB/ECU, 24 March 2000, DSR 2000:V, 2237 WT/AB/18 
 
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EC – Bananas III (US) 
(Article 22.6 – EC) Decision by the Arbitrators, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Recourse to 
Arbitration by the European Communities under Article 22.6 of the 
DSU, WT/DS27/ARB, 9 April 1999, DSR 1999:II, 725 
EC – Bed Linen Appellate Body Report, European Communities – Anti-Dumping 
Duties on Imports of Cotton-Type Bed Linen from India , 
WT/DS141/AB/R, adopted 12 March 2001, DSR 2001:V, 2049 
EC – Bed Linen Panel Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India , WT/DS141/R, 
adopted 12 March 2001, as modified by Appellate Body Report WT/DS141/AB/R, DSR 2001:VI, 2077 
EC – Bed Linen 
(Article 21.5 – India) Appellate Body Report, European Communities – Anti-Dumping 
Duties on Imports of Cotton-Type Bed Linen from India – Recourse 
to Article 21.5 of the DSU  by India , WT/DS141/AB/RW, adopted 
24 April 2003, DSR 2003:III, 965  
EC – Bed Linen 
(Article 21.5 – India) Panel Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the DSU  by India , WT/DS141/RW, adopted 24 April 
2003, as modified by Appellate Body Report WT/DS141/AB/RW, 
DSR 2003:IV, 1269  
EC – Butter Panel Report, European Communities – Measures Affecting Butter 
Products , WT/DS72/R, 24 November 1999, unadopted 
EC – Chicken Cuts Appellate Body Report, European  Communities – Customs 
Classification of Frozen Boneless Chicken Cuts , WT/DS269/AB/R, 
WT/DS286/AB/R, adopted 27 September 2005, and Corr.1, 
DSR 2005:XIX, 9157 
EC – Chicken Cuts (Brazil) Panel Report, European  Communities – Customs Classification of 
Frozen Boneless Chicken Cuts, Complaint by Brazil , WT/DS269/R, 
adopted 27 September 2005, as modified by Appellate Body Report 
WT/DS269/AB/R, WT/DS286/AB/R, DSR 2005:XIX, 9295 
EC – Chicken Cuts 
(Thailand) Panel Report, European  Communities – Customs Classification of 
Frozen Boneless Chicken Cuts, Complaint by Thailand , WT/DS286/R, 
adopted 27 September 2005, as modified by Appellate Body Report 
WT/DS269/AB/R, WT/DS286/AB/R, DSR 2005:XX, 9721 
EC – Chicken Cuts 
(Article 21.3(c)) Award of the Arbitrator, European Communities – Customs 
Classification of Frozen Boneless Chicken Cuts – Arbitration under 
Article 21.3(c) of the DSU , WT/DS269/13, WT/DS286/15, 
20 February 2006 
EC – Commercial Vessels Panel Report, European Communities – Measures Affecting Trade in 
Commercial Vessels , WT/DS301/R, adopted 20 June 2005, 
DSR 2005:XV, 7713 
EC – Computer Equipment Appellate Body Report, European Communities – Customs 
Classification of Certain Computer Equipment , WT/DS62/AB/R, 
WT/DS67/AB/R, WT/DS68/AB/R, adopted 22 June 1998, 
DSR 1998:V, 1851 
EC – Computer Equipment Panel Report, European Communities – Customs Classification of 
Certain Computer Equipment , WT/DS62/R, WT/DS67/R, 
WT/DS68/R, adopted 22 June 1998, as modified by Appellate Body 
Report WT/DS62/AB/R, WT/D S67/AB/R, WT/DS68/AB/R, 
DSR 1998:V, 1891 
EC – Countervailing 
Measures on DRAM Chips Panel Report, European Communities – Countervailing Measures on 
Dynamic Random Access Memory Chips from Korea , WT/DS299/R, 
adopted 3 August 2005, DSR 2005:XVIII, 8671 WT/AB/18 
 
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EC – Export Subsidies on 
Sugar Appellate Body Report, European Communities – Export Subsidies 
on Sugar , WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, 
adopted 19 May 2005, DSR 2005:XIII, 6365 
EC – Export Subsidies on 
Sugar (Australia) Panel Report, European Communities – Export Subsidies on Sugar, 
Complaint by Australia , WT/DS265/R, adopted 19 May 2005, as 
modified by Appellate Body Report WT/DS265/AB/R, 
WT/DS266/AB/R, WT/DS283/ AB/R, DSR 2005:XIII, 6499 
EC – Export Subsidies on 
Sugar (Brazil) Panel Report, European Communities – Export Subsidies on Sugar, 
Complaint by Brazil , WT/DS266/R, adopted 19 May 2005, as 
modified by Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:XIV, 6793 
EC – Export Subsidies on 
Sugar (Thailand) Panel Report, European Communities – Export Subsidies on Sugar, 
Complaint by Thailand , WT/DS283/R, adopted 19 May 2005, as 
modified by Appellate Body Report WT/DS265/AB/R, 
WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:XIV, 7071 
EC – Export Subsidies on 
Sugar  (Article 21.3(c)) Award of the Arbitrator, European Communities – Export Subsidies 
on Sugar – Arbitration under Article 21.3(c) of the DSU , 
WT/DS265/33, WT/DS266/33, WT/DS283/14, 28 October 2005, 
DSR 2005:XXIII, 11581 
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-
Dumping Measures on Certain Iron or Steel Fasteners from China , 
WT/DS397/AB/R, adopted 28 July 2011 
EC – Fasteners (China) Panel Report, European Communities – Definitive Anti-Dumping 
Measures on Certain Iron or Steel Fasteners from China , 
WT/DS397/R and Corr.1, adopted 28 July 2011, as modified by 
Appellate Body Report WT/DS397/AB/R 
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat 
Products (Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 
13 February 1998, DSR 1998:I, 135 
EC – Hormones (Canada) Panel Report, EC Measures Concerning Meat and Meat Products 
(Hormones), Complaint by Canada , WT/DS48/R/CAN, adopted 13 
February 1998, as modified by Appellate Body Report 
WT/DS26/AB/R, WT/DS48/AB/R, DSR 1998:II, 235 
EC – Hormones (US) Panel Report, EC Measures Concerning Meat and Meat Products 
(Hormones), Complaint by the United States , WT/DS26/R/USA, 
adopted 13 February 1998, as modified by Appellate Body Report 
WT/DS26/AB/R, WT/DS48/ AB/R, DSR 1998:III, 699 
EC – Hormones 
(Article 21.3(c)) Award of the Arbitrator, EC Measures Concerning Meat and Meat 
Products (Hormones) – Arbitration under Article 21.3(c) of the DSU , 
WT/DS26/15, WT/DS48/13, 29 May 1998, DSR 1998:V, 1833 
EC – Hormones (Canada) 
(Article 22.6 – EC) Decision by the Arbitrators, European Communities – Measures 
Concerning Meat and Meat Products (Hormones), Original Complaint 
by Canada – Recourse to Arbitration by the European Communities 
under Article 22.6 of the DSU , WT/DS48/ARB, 12 July 1999, 
DSR 1999:III, 1135 
EC – Hormones (US) 
(Article 22.6 – EC) Decision by the Arbitrators, European Communities – Measures 
Concerning Meat and Meat Products (Hormones), Original Complaint by the United States – Recourse to Arbitration by the European 
Communities under Article 22.6 of the DSU , WT/DS26/ARB, 12 July 
1999, DSR 1999:III, 1105 WT/AB/18 
 
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EC – IT Products Panel Reports, European Communities and its member States – 
Tariff Treatment of Certain Information Technology Products , 
WT/DS375/R / WT/DS376/R / WT/DS377/R, adopted 21 September 
2010, DSR 2010:III, 933-DSR 2010:IV, 1567 
EC – Poultry Appellate Body Report, European Communities – Measures Affecting 
the Importation of Certain Poultry Products , WT/DS69/AB/R, 
adopted 23 July 1998, DSR 1998:V, 2031 
EC – Poultry Panel Report, European Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/R, adopted 
23 July 1998, as modified by Appellate Body Report WT/DS69/AB/R, 
DSR 1998:V, 2089 
EC – Salmon (Norway) Panel Report, European Communities – Anti-Dumping Measure on 
Farmed Salmon from Norway , WT/DS337/R, adopted 15 January 
2008, and Corr.1, DSR 2008:I, 3 
EC – Sardines Appellate Body Report, European Communities – Trade Description 
of Sardines , WT/DS231/AB/R, adopted 23 October 2002, 
DSR 2002:VIII, 3359 
EC – Sardines Panel Report, European Communities – Trade Description of 
Sardines , WT/DS231/R and Corr.1, adopted 23 October 2002, as 
modified by Appellate Body Re port WT/DS231/AB/R, DSR 2002:VIII, 
3451 
EC – Scallops (Canada) Panel Report, European Communities – Trade Description of 
Scallops – Request by Canada , WT/DS7/R, 5 August 1996, 
unadopted, DSR 1996:I, 89 
EC – Scallops (Peru and 
Chile) Panel Report, European Communities – Trade Description of 
Scallops – Requests by Peru  and Chile , WT/DS12/R, WT/DS14/R, 
5 August 1996, unadopted, DSR 1996:I, 93 
EC – Selected Customs 
Matters Appellate Body Report, European Communities – Selected Customs 
Matters , WT/DS315/AB/R, adopted 11 December 2006, 
DSR 2006:IX, 3791 
EC – Selected Customs 
Matters Panel Report, European Communities – Selected Customs Matters , 
WT/DS315/R, adopted 11 December 2006, as modified by Appellate 
Body Report WT/DS315/AB/R, DSR 2006:IX-X, 3915 
EC – Tariff Preferences Appellate Body Report, European Communities – Conditions for the 
Granting of Tariff Preferences to Developing Countries , 
WT/DS246/AB/R, adopted 20 April 2004, DSR 2004:III, 925 
EC – Tariff Preferences Panel Report, European Communities – Conditions for the Granting 
of Tariff Preferences to Developing Countries , WT/DS246/R, adopted 
20 April 2004, as modified by Appellate Body Report 
WT/DS/246/AB/R, DSR 2004:III, 1009 
EC – Tariff Preferences 
(Article 21.3(c)) Award of the Arbitrator, European Communities – Conditions for the 
Granting of Tariff Preferences to Developing Countries  – Arbitration 
under Article 21.3(c) of the DSU , WT/DS246/14, 20 September 
2004, DSR 2004:IX, 4313 
EC – Trademarks and 
Geographical Indications 
(Australia) Panel Report,  European Communities – Protection of Trademarks 
and Geographical Indications for Agricultural Products and 
Foodstuffs, Complaint by Australia , WT/DS290/R, adopted 20 April 
2005, DSR 2005:X, 4603 
EC – Trademarks and 
Geographical Indications 
(US) Panel Report,  European Communities – Protection of Trademarks 
and Geographical Indications for Agricultural Products and 
Foodstuffs, Complaint by the United States , WT/DS174/R, adopted 
20 April 2005, DSR 2005:VIII, 3499 WT/AB/18 
 
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EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping 
Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil , 
WT/DS219/AB/R, adopted 18 August 2003, DSR 2003:VI, 2613 
EC – Tube or Pipe Fittings Panel Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/R, 
adopted 18 August 2003, as modified by Appellate Body Report 
WT/DS219/AB/R, DSR 2003:VII, 2701 
EC and certain member 
States – Large Civil Aircraft Appellate Body Report, European Communities and Certain Member 
States – Measures Affecting Trade in Large Civil Aircraft , 
WT/DS316/AB/R, adopted 1 June 2011 
EC and certain member 
States – Large Civil Aircraft Panel Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/R, 
adopted 1 June 2011, as modified by Appellate Body Report, 
WT/DS316/AB/R 
Egypt – Steel Rebar Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel 
Rebar from Turkey , WT/DS211/R, adopted 1 October 2002, 
DSR 2002:VII, 2667 
EU – Footwear (China) Panel Report, European Union – Anti-Dumping Measures on Certain 
Footwear from China , WT/DS405/R, adopted 22 February 2012 
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation 
Regarding Portland Cement from Mexico , WT/DS60/AB/R, adopted 
25 November 1998, DSR 1998:IX, 3767 
Guatemala – Cement I Panel Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/R, adopted 25 November 
1998, as reversed by Appellate Body Report WT/DS60/AB/R, 
DSR 1998:IX, 3797 
Guatemala – Cement II Panel Report, Guatemala – Definitive Anti-Dumping Measures on 
Grey Portland Cement from Mexico , WT/DS156/R, adopted 
17 November 2000, DSR 2000:XI, 5295 
India – Additional Import 
Duties Appellate Body Report, India – Additional and Extra-Additional 
Duties on Imports from the United States , WT/DS360/AB/R, 
adopted 17 November 2008, DSR 2008:XX, 8223 
India – Additional Import 
Duties Panel Report, India – Additional and Extra-Additional Duties on 
Imports from the United States , WT/DS360/R, adopted 
17 November 2008, as reversed by Appellate Body Report 
WT/DS360/AB/R, DSR 2008:XX, 8317 
India – Autos Appellate Body Report, India – Measures Affecting the Automotive 
Sector , WT/DS146/AB/R, WT/DS175/AB/R, adopted 5 April 2002, 
DSR 2002:V, 1821 
India – Autos Panel Report, India – Measures Affecting the Automotive Sector , 
WT/DS146/R, WT/DS175/R and Corr.1, adopted 5 April 2002, DSR 2002:V, 1827 
India – Patents (EC) Panel Report, India – Patent Protection for Pharmaceutical and 
Agricultural Chemical Products, Complaint by the European 
Communities and their member States , WT/DS79/R, adopted 
22 September 1998, DSR 1998:VI, 2661 
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical 
and Agricultural Chemical Products , WT/DS50/AB/R, adopted 
16 January 1998, DSR 1998:I, 9 WT/AB/18 
 
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 Short title Full case title and citation 
India – Patents (US) Panel Report, India – Patent Protection for Pharmaceutical and 
Agricultural Chemical Products, Complaint by the United States , 
WT/DS50/R, adopted 16 January 1998, as modified by Appellate 
Body Report WT/DS50/AB/R, DSR 1998:I, 41 
India – Quantitative 
Restrictions Appellate Body Report, India – Quantitative Restrictions on Imports 
of Agricultural, Textile and Industrial Products , WT/DS90/AB/R, 
adopted 22 September 1999, DSR 1999:IV, 1763 
India – Quantitative 
Restrictions Panel Report, India – Quantitative Restrictions on Imports of 
Agricultural, Textile and Industrial Products , WT/DS90/R, adopted 
22 September 1999, upheld by Appellate Body Report 
WT/DS90/AB/R, DSR 1999:V, 1799 
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the 
Automobile Industry , WT/DS54/R, WT/DS55/R, WT/DS59/R, 
WT/DS64/R and Corr.1 and 2, adopted 23 July 1998, and Corr. 3 and 4, DSR 1998:VI, 2201 
Indonesia – Autos 
(Article 21.3(c)) Award of the Arbitrator, Indonesia – Certain Measures Affecting the 
Automobile Industry – Arbitration under Article 21.3(c) of the DSU , 
WT/DS54/15, WT/DS55/14, WT/DS59/13, WT/DS64/12, 7 
December 1998, DSR 1998:IX, 4029 
Japan – Agricultural 
Products II Appellate Body Report, Japan – Measures Affecting Agricultural 
Products , WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, 277  
Japan – Agricultural 
Products II Panel Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/R, adopted 19 March 1999, as modified by Appellate Body 
Report WT/DS76/AB/R, DSR 1999:I, 315 
Japan – Alcoholic 
Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R, WT/DS10/AB/R , WT/DS11/AB/R, adopted 1 
November 1996, DSR 1996:I, 97 
Japan – Alcoholic 
Beverages II Panel Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/R, 
WT/DS10/R, WT/DS11/R, adopted 1 November 1996, as modified 
by Appellate Body Report WT/DS8/AB/R, WT/DS10/AB/R, 
WT/DS11/AB/R, DSR 1996:I, 125 
Japan – Alcoholic 
Beverages II 
(Article 21.3(c)) Award of the Arbitrator, Japan – Taxes on Alcoholic Beverages – 
Arbitration under Article 21.3(c) of the DSU , WT/DS8/15, 
WT/DS10/15, WT/DS11/13, 14 February 1997, DSR 1997:I, 3 
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation 
of Apples , WT/DS245/AB/R, adopted 10 December 2003, 
DSR 2003:IX, 4391 
Japan – Apples Panel Report, Japan – Measures Affecting the Importation of Apples , 
WT/DS245/R, adopted 10 December 2003, upheld by Appellate 
Body Report WT/DS245/AB/R, DSR 2003:IX, 4481  
Japan – Apples 
(Article 21.5 – US) Panel Report, Japan – Measures Affecting the Importation of Apples 
– Recourse to Article 21.5 of the DSU by the United States , 
WT/DS245/RW, adopted 20 July 2005, DSR 2005:XVI, 7911 
Japan – DRAMs (Korea) Appellate Body Report, Japan – Countervailing Duties on Dynamic 
Random Access Memories from Korea , WT/DS336/AB/R and Corr.1, 
adopted 17 December 2007, DSR 2007:VII, 2703 
Japan – DRAMs (Korea) Panel Report, Japan – Countervailing Duties on Dynamic Random 
Access Memories from Korea , WT/DS336/R, adopted 17 December 
2007, as modified by Appellate Body Report WT/DS336/AB/R, 
DSR 2007:VII, 2805 WT/AB/18 
 
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 Short title Full case title and citation 
Japan – DRAMs (Korea) 
(Article 21.3(c)) Award of the Arbitrator, Japan – Countervailing Duties on Dynamic 
Random Access Memories from Korea – Arbitration under 
Article 21.3(c) of the DSU , WT/DS336/16, 5 May 2008, 
DSR 2008:XX, 8553 
Japan – Film Panel Report, Japan – Measures Affecting Consumer Photographic 
Film and Paper , WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, 
1179 
Japan – Quotas on Laver Panel Report, Japan – Import Quotas on Dried Laver and Seasoned 
Laver , WT/DS323/R, 1 February 2006, unadopted 
Korea – Alcoholic 
Beverages Appellate Body Report, Korea – Taxes on Alcoholic Beverages , 
WT/DS75/AB/R, WT/DS84/AB/R, adopted 17 February 1999, 
DSR 1999:I, 3 
Korea – Alcoholic 
Beverages Panel Report, Korea – Taxes on Alcoholic Beverages , WT/DS75/R, 
WT/DS84/R, adopted 17 February 1999, as modified by Appellate Body Report WT/DS75/AB/R, WT/DS84/AB/R, DSR 1999:I, 44 
Korea – Alcoholic 
Beverages  
(Article 21.3(c)) Award of the Arbitrator, Korea – Taxes on Alcoholic Beverages – 
Arbitration under Article 21.3(c) of the DSU , WT/DS75/16, 
WT/DS84/14, 4 June 1999, DSR 1999:II, 937 
Korea – Bovine Meat 
(Canada) Panel Report, Korea – Measures Affecting the Importation of Bovine 
Meat and Meat Products from Canada , WT/DS391/R, 3 July 2012, 
unadopted 
Korea – Certain Paper Panel Report, Korea – Anti-Dumping Duties on Imports of Certain 
Paper from Indonesia , WT/DS312/R, adopted 28 November 2005, 
DSR 2005:XXII, 10637 
Korea – Certain Paper 
(Article 21.5 – Indonesia) Panel Report, Korea – Anti-Dumping Duties on Imports of Certain 
Paper from Indonesia – Recourse to Article 21.5 of the DSU by 
Indonesia , WT/DS312/RW, adopted 22 October 2007, 
DSR 2007:VIII, 3369 
Korea – Commercial 
Vessels Panel Report, Korea – Measures Affecting Trade in Commercial 
Vessels , WT/DS273/R, adopted 11 April 2005, DSR 2005:VII, 2749 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on 
Imports of Certain Dairy Products , WT/DS98/AB/R, adopted 
12 January 2000, DSR 2000:I, 3 
Korea – Dairy Panel Report, Korea – Definitive Safeguard Measure on Imports of 
Certain Dairy Products , WT/DS98/R and Corr.1, adopted 12 January 
2000, as modified by Appellate Body Report WT/DS98/AB/R, 
DSR 2000:I, 49 
Korea – Procurement Panel Report, Korea – Measures Affecting Government Procurement , 
WT/DS163/R, adopted 19 June 2000, DSR 2000:VIII, 3541 
Korea – Various Measures 
on Beef Appellate Body Report, Korea – Measures Affecting Imports of 
Fresh, Chilled and Frozen Beef , WT/DS161/AB/R, WT/DS169/AB/R, 
adopted 10 January 2001, DSR 2001:I, 5 
Korea – Various Measures 
on Beef Panel Report, Korea – Measures Affecting Imports of Fresh, Chilled 
and Frozen Beef , WT/DS161/R, WT/DS169/R, adopted 10 January 
2001, as modified by Appellate Body Report WT/DS161/AB/R, 
WT/DS169/AB/R, DSR 2001:I, 59 
Mexico – Anti-Dumping 
Measures on Rice Appellate Body Report, Mexico – Definitive Anti-Dumping Measures 
on Beef and Rice, Complaint with Respect to Rice , WT/DS295/AB/R, 
adopted 20 December 2005, DSR 2005:XXII, 10853 WT/AB/18 
 
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Mexico – Anti-Dumping 
Measures on Rice Panel Report, Mexico – Definitive Anti-Dumping Measures on Beef 
and Rice, Complaint with Respect to Rice , WT/DS295/R, adopted 
20 December 2005, as modified by Appellate Body Report 
WT/DS295/AB/R, DSR 2005:XXIII, 11007 
Mexico – Corn Syrup Panel Report, Mexico – Anti-Dumping Investigation of High Fructose 
Corn Syrup (HFCS) from the United States , WT/DS132/R, adopted 
24 February 2000, and Co rr.1, DSR 2000:III, 1345 
Mexico – Corn Syrup 
(Article 21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of High 
Fructose Corn Syrup (HFCS) from the United States – Recourse to 
Article 21.5 of the DSU  by the United States , WT/DS132/AB/RW, 
adopted 21 November 2001, DSR 2001:XIII, 6675 
Mexico – Corn Syrup 
(Article 21.5 – US) Panel Report, Mexico – Anti-Dumping Investigation of High Fructose 
Corn Syrup (HFCS) from the United States – Recourse to 
Article 21.5 of the DSU  by the United States , WT/DS132/RW, 
adopted 21 November 2001, upheld  by Appellate Body Report 
WT/DS132/AB/RW, DSR 2001:XIII, 6717 
Mexico – Olive Oil Panel Report, Mexico – Definitive Countervailing Measures on Olive 
Oil from the European Communities , WT/DS341/R, adopted 
21 October 2008, DSR 2008:IX, 3179 
Mexico – Steel Pipes and 
Tubes Panel Report, Mexico – Anti-Dumping Duties on Steel Pipes and 
Tubes from Guatemala , WT/DS331/R, adopted 24 July 2007, 
DSR 2007:IV, 1207 
Mexico – Taxes on Soft 
Drinks Appellate Body Report, Mexico – Tax Measures on Soft Drinks and 
Other Beverages , WT/DS308/AB/R, adopted 24 March 2006, 
DSR 2006:I, 3 
Mexico – Taxes on Soft 
Drinks Panel Report, Mexico – Tax Measures on Soft Drinks and Other 
Beverages , WT/DS308/R, adopted 24 March 2006, as modified by 
Appellate Body Report WT/DS308/AB/R, DSR 2006:I, 43 
Mexico – Telecoms Panel Report, Mexico – Measures Affecting Telecommunications 
Services , WT/DS204/R, adopted 1 June 2004, DSR 2004:IV, 1537 
Philippines – Distilled 
Spirits Appellate Body Reports, Philippines – Taxes on Distilled Spirits , 
WT/DS396/AB/R / WT/DS403/AB/R, adopted 20 January 2012 
Philippines – Distilled 
Spirits Panel Reports, Philippines – Taxes on Distilled Spirits , WT/DS396/R / 
WT/DS403/R, adopted 20 January 2012, as modified by Appellate Body Reports WT/DS396/AB/R / WT/DS403/AB/R 
Thailand – Cigarettes 
(Philippines) Appellate Body Report, Thailand – Customs and Fiscal Measures on 
Cigarettes from the Philippines , WT/DS371/AB/R, adopted 15 July 
2011 
Thailand – Cigarettes 
(Philippines) Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes 
from the Philippines , WT/DS371/R, adopted 15 July 2011, as 
modified by Appellate Body Report WT/DS371/AB/R 
Thailand – H-Beams Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, 
Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from 
Poland , WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, 
2701 
Thailand – H-Beams Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes 
and Sections of Iron or Non-Alloy Steel and H-Beams from Poland , 
WT/DS122/R, adopted 5 April 2001, as modified by Appellate Body 
Report WT/DS122/AB/R, DSR 2001:VII, 2741 
Turkey – Rice Panel Report, Turkey – Measures Affecting the Importation of Rice , 
WT/DS334/R, adopted 22 October 2007, DSR 2007:VI, 2151 WT/AB/18 
 
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Turkey – Textiles Appellate Body Report, Turkey – Restrictions on Imports of Textile 
and Clothing Products , WT/DS34/AB/R, adopted 19 November 1999, 
DSR 1999:VI, 2345 
Turkey – Textiles Panel Report, Turkey – Restrictions on Imports of Textile and 
Clothing Products , WT/DS34/R, adopted 19 November 1999, as 
modified by Appellate Body Report WT/DS34/AB/R, DSR 1999:VI, 
2363 
US – 1916 Act Appellate Body Report, United States – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, 
DSR 2000:X, 4793 
US – 1916 Act (EC) Panel Report, United States – Anti-Dumping Act of 1916, Complaint 
by the European Communities , WT/DS136/R and Corr.1, adopted 
26 September 2000, upheld by Appellate Body Report 
WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, 4593 
US – 1916 Act (Japan) Panel Report, United States – Anti-Dumping Act of 1916, Complaint 
by Japan , WT/DS162/R and Add.1, adopted 26 September 2000, 
upheld by Appellate Body Report WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, 4831 
US – 1916 Act 
(Article 21.3(c)) Award of the Arbitrator, United States – Anti-Dumping Act of 1916 – 
Arbitration under Article 21.3(c) of the DSU , WT/DS136/11, 
WT/DS162/14, 28 February 2001, DSR 2001:V, 2017 
US – 1916 Act (EC) 
(Article 22.6 – US) Decision by the Arbitrators, United States – Anti-Dumping Act of 
1916, Original Complaint by the European Communities – Recourse 
to Arbitration by the United States under Article 22.6 of the DSU , 
WT/DS136/ARB, 24 February 2004, DSR 2004:IX, 4269 
US – Anti-Dumping and 
Countervailing Duties 
(China) Appellate Body Report, United States – Definitive Anti-Dumping and 
Countervailing Duties on Ce rtain Products from China , 
WT/DS379/AB/R, adopted 25 March 2011 
US – Anti-Dumping and 
Countervailing Duties (China) Panel Report, United States – Definitive Anti-Dumping and 
Countervailing Duties on Ce rtain Products from China , WT/DS379/R, 
adopted 25 March 2011, as modified by Appellate Body Report WT/DS379/AB/R 
US – Anti-Dumping 
Measures on Oil Country 
Tubular Goods Appellate Body Report, United States – Anti-Dumping Measures on 
Oil Country Tubular Goods (OCTG) from Mexico , WT/DS282/AB/R, 
adopted 28 November 2005, DSR 2005:XX, 10127 
US – Anti-Dumping 
Measures on Oil Country Tubular Goods Panel Report, United States – Anti-Dumping Measures on Oil 
Country Tubular Goods (OCTG) from Mexico , WT/DS282/R, adopted 
28 November 2005, as modified by Appellate Body Report 
WT/DS282/AB/R, DSR 2005:XXI, 10225 
US – Anti-Dumping 
Measures on PET Bags Panel Report, United States – Anti-Dumping Measures on 
Polyethylene Retail Carrier Bags from Thailand , WT/DS383/R, 
adopted 18 February 2010, DSR 2010:IV, 1841 
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on 
Certain Corrosion-Resistant Carbon Steel Flat Products from Germany , WT/DS213/AB/R and Corr.1, adopted 19 December 2002, 
DSR 2002:IX, 3779 
US – Carbon Steel Panel Report, United States – Countervailing Duties on Certain 
Corrosion-Resistant Carbon Steel  Flat Products from Germany , 
WT/DS213/R and Corr.1, adopted 19 December 2002, as modified 
by Appellate Body Report WT/DS213/AB/R, DSR 2002:IX, 3833 WT/AB/18 
 
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US – Certain EC Products Appellate Body Report, United States – Import Measures on Certain 
Products from the European Communities , WT/DS165/AB/R, 
adopted 10 January 2001, DSR 2001:I, 373 
US – Certain EC Products Panel Report, United States – Import Measures on Certain Products 
from the European Communities , WT/DS165/R and Add.1, adopted 
10 January 2001, as modified by Appellate Body Report 
WT/DS165/AB/R, DSR 2001:II, 413 
US – Clove Cigarettes Appellate Body Report, United States – Measures Affecting the 
Production and Sale of Clove Cigarettes , WT/DS406/AB/R, adopted 
24 April 2012 
US – Clove Cigarettes Panel Report, United States – Measures Affecting the Production and 
Sale of Clove Cigarettes , WT/DS406/R, adopted 24 April 2012, as 
modified by Appellate Body Report WT/DS406/AB/R 
US – Continued Suspension Appellate Body Report, United States – Continued Suspension of 
Obligations in the EC – Hormones Dispute , WT/DS320/AB/R, 
adopted 14 November 2008, DSR 2008:X, 3507 
US – Continued Suspension Panel Report, United States – Continued Suspension of Obligations 
in the EC – Hormones Dispute , WT/DS320/R, adopted 14 November 
2008, as modified by Appellate Body Report WT/DS320/AB/R, 
DSR 2008:XI, 3891-DSR 2008:XIII, 4913 
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and 
Application of Zeroing Methodology , WT/DS350/AB/R, adopted 
19 February 2009, DSR 2009:III, 1291 
US – Continued Zeroing Panel Report, United States – Continued Existence and Application 
of Zeroing Methodology , WT/DS350/R, adopted 19 February 2009, 
as modified as Appellate Body Report WT/DS350/AB/R, 
DSR 2009:III, 1481- DSR 2009:IV, 1619 
US – COOL Appellate Body Reports, United States – Certain Country of Origin 
Labelling (COOL) Requirements , WT/DS384/AB/R / WT/DS386/AB/R, 
adopted 23 July 2012 
US – COOL Panel Reports, United States – Certain Country of Origin Labelling 
(COOL) Requirements , WT/DS384/R / WT/DS386/R, adopted 23 July 
2012, as modified by Appellate Body Reports WT/DS384/AB/R / 
WT/DS386/AB/R 
US – COOL 
(Article 21.3(c)) Award of the Arbitrator, United States – Certain Country of Origin 
Labelling (COOL) Requirements  – Arbitration under Article 21.3(c) of 
the DSU , WT/DS384/24, WT/DS386/23, 4 December 2012 
US – Corrosion-Resistant 
Steel Sunset Review Appellate Body Report, United States – Sunset Review of 
Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat 
Products from Japan , WT/DS244/AB/R, adopted 9 January 2004, 
DSR 2004:I, 3  
US – Corrosion-Resistant 
Steel Sunset Review Panel Report, United States – Sunset Review of Anti-Dumping 
Duties on Corrosion-Resistant Ca rbon Steel Flat Products from 
Japan , WT/DS244/R, adopted 9 January 2004, as modified by 
Appellate Body Report WTDS244/AB/R, DSR 2004:I, 85  
US – Cotton Yarn Appellate Body Report, United States – Transitional Safeguard 
Measure on Combed Cotton Yarn from Pakistan , WT/DS192/AB/R, 
adopted 5 November 2001, DSR 2001:XII, 6027 
US – Cotton Yarn Panel Report, United States – Transitional Safeguard Measure on 
Combed Cotton Yarn from Pakistan , WT/DS192/R, adopted 
5 November 2001, as modified by Appellate Body Report WT/DS192/AB/R, DSR 2001:XII, 6067 WT/AB/18 
 
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 Short title Full case title and citation 
US – Countervailing Duty 
Investigation on DRAMS Appellate Body Report, United States – Countervailing Duty 
Investigation on Dynamic Random Access Memory Semiconductors 
(DRAMS) from Korea , WT/DS296/AB/R, adopted 20 July 2005, 
DSR 2005:XVI, 8131 
US – Countervailing Duty 
Investigation on DRAMS Panel Report, United States – Countervailing Duty Investigation on 
Dynamic Random Access Memory Semiconductors (DRAMS) from 
Korea , WT/DS296/R, adopted 20 July 2005, as modified by 
Appellate Body Report WT/DS296/AB/R, DSR 2005:XVII, 8243 
US – Countervailing 
Measures on Certain EC 
Products Appellate Body Report, United States – Countervailing Measures 
Concerning Certain Products from the European Communities , 
WT/DS212/AB/R, adopted 8 January 2003, DSR 2003:I, 5 
US – Countervailing 
Measures on Certain EC 
Products Panel Report, United States – Countervailing Measures Concerning 
Certain Products from the European Communities , WT/DS212/R, 
adopted 8 January 2003, as modified by Appellate Body Report WT/DS212/AB/R, DSR 2003:I, 73 
US – Countervailing 
Measures on Certain EC 
Products  
(Article 21.5 – EC) Panel Report, United States – Countervailing Measures Concerning 
Certain Products from the European Communities – Recourse to 
Article 21.5 of the DSU by the European Communities , 
WT/DS212/RW, adopted 27 Se ptember 2005, DSR 2005:XVIII, 
8950 
US – Customs Bond 
Directive Panel Report, United States – Customs Bond Directive for 
Merchandise Subject to Anti-Dumping/Countervailing Duties , 
WT/DS345/R, adopted 1 August 2008, as modified by Appellate 
Body Report WT/DS343/AB/R / WT/DS345/AB/R, DSR 2008:VIII, 2925 
US – DRAMS Panel Report, United States – Anti-Dumping Duty on Dynamic 
Random Access Memory Semiconductors (DRAMS) of One Megabit 
or Above from Korea , WT/DS99/R, adopted 19 March 1999, 
DSR 1999:II, 521 
US – DRAMS 
(Article 21.5 – Korea) Panel Report, United States – Anti-Dumping Duty on Dynamic 
Random Access Memory Semiconductors (DRAMS) of One Megabit or Above from Korea – Recourse to Article 21.5 of the DSU by 
Korea , WT/DS99/RW, 7 November 2000, unadopted 
US – Export Restraints Panel Report, United States – Measures Treating Exports Restraints 
as Subsidies , WT/DS194/R and Corr.2, adopted 23 August 2001, 
DSR 2001:XI, 5767 
US – FSC Appellate Body Report, United States – Tax Treatment for "Foreign 
Sales Corporations" , WT/DS108/AB/R, adopted 20 March 2000, 
DSR 2000:III, 1619 
US – FSC Panel Report, United States – Tax Treatment for "Foreign Sales 
Corporations" , WT/DS108/R, adopted 20 March 2000, as modified 
by Appellate Body Report WT/DS108/AB/R, DSR 2000:IV, 1675 
US – FSC 
(Article 21.5 – EC) Appellate Body Report, United States – Tax Treatment for "Foreign 
Sales Corporations" – Recourse to Article 21.5 of the DSU by the European Communities , WT/DS108/AB/RW, adopted 29 January 
2002, DSR 2002:I, 55 
US – FSC 
(Article 21.5 – EC) Panel Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Recourse to Article 21.5 of the DSU by the 
European Communities , WT/DS108/RW, adopted 29 January 2002, 
as modified by Appellate Body Report WT/DS108/AB/RW, 
DSR 2002:I, 119 WT/AB/18 
 
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 Short title Full case title and citation 
US – FSC 
(Article 21.5 – EC II) Appellate Body Report, United States – Tax Treatment for "Foreign 
Sales Corporations" – Second Recourse to Article 21.5 of the DSU by 
the European Communities , WT/DS108/AB/RW2, adopted 14 March 
2006, DSR 2006:XI, 4721 
US – FSC 
(Article 21.5 – EC II) Panel Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Second Recourse to Article 21.5 of the DSU by the 
European Communities , WT/DS108/RW2, adopted 14 March 2006, 
upheld by Appellate Body Report WT/DS108/AB/RW2, DSR 2006:XI, 
4761 
US – FSC 
(Article 22.6 – US) Decision by the Arbitrator, United States – Tax Treatment for 
"Foreign Sales Corporations" – Recourse to Arbitration by the United States under Article 22.6 of the DSU and Article 4.11 of the SCM 
Agreement, WT/DS108/ARB, 30 August 2002, DSR 2002:VI, 2517 
US – Gambling Appellate Body Report, United States – Measures Affecting the 
Cross-Border Supply of Gambling and Betting Services , 
WT/DS285/AB/R, adopted 20 April 2005, DSR 2005:XII, 5663 
(Corr.1, DSR 2006:XII, 5475) 
US – Gambling Panel Report, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services , WT/DS285/R, adopted 
20 April 2005, as modified by Appellate Body Report WT/DS285/AB/R, DSR 2005:XII, 5797 
US – Gambling 
(Article 21.3(c)) Award of the Arbitrator, United States – Measures Affecting the 
Cross-Border Supply of Gambling and Betting Services – Arbitration 
under Article 21.3(c) of the DSU , WT/DS285/13, 19 August 2005, 
DSR 2005:XXIII, 11639 
US – Gambling 
(Article 21.5 – Antigua and Barbuda) Panel Report, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services – Recourse to Article 21.5 of the DSU by Antigua and Barbuda , WT/DS285/RW, adopted 22 
May 2007, DSR 2007:VIII, 3105 
US – Gambling 
(Article 22.6 – US) Decision by the Arbitrator, United States – Measures Affecting the 
Cross-Border Supply of Gambling and Betting Services – Recourse 
to Arbitration by the United States under Article 22.6 of the DSU , 
WT/DS285/ARB, 21 December 2007, DSR 2007:X, 4163 
US – Gasoline Appellate Body Report, United States – Standards for Reformulated 
and Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, 
DSR 1996:I, 3 
US – Gasoline Panel Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/R, adopted 20 May 1996, as 
modified by Appellate Body Report WT/DS2/AB/R, DSR 1996:I, 29 
US – Hot-Rolled Steel Appellate Body Report, United States – Anti-Dumping Measures on 
Certain Hot-Rolled Steel Products from Japan , WT/DS184/AB/R, 
adopted 23 August 2001, DSR 2001:X, 4697 
US – Hot-Rolled Steel Panel Report, United States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/R, adopted 
23 August 2001 modified by Appellate Body Report 
WT/DS184/AB/R, DSR 2001:X, 4769 
US – Hot-Rolled Steel 
(Article 21.3(c)) Award of the Arbitrator, United States – Anti-Dumping Measures on 
Certain Hot-Rolled Steel Products from Japan – Arbitration under 
Article 21.3(c) of the DSU , WT/DS184/13, 19 February 2002, 
DSR 2002:IV, 1389 WT/AB/18 
 
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 Short title Full case title and citation 
US – Lamb Appellate Body Report, United States – Safeguard Measures on 
Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand 
and Australia , WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 
2001, DSR 2001:IX, 4051 
US – Lamb Panel Report, United States – Safeguard Measures on Imports of 
Fresh, Chilled or Frozen Lamb Meat from New Zealand and 
Australia , WT/DS177/R, WT/DS178/R, adopted 16 May 2001, as 
modified by Appellate Body Report WT/DS177/AB/R, 
WT/DS178/AB/R, DSR 2001:IX, 4107 
US – Large Civil Aircraft 
(2nd complaint) Appellate Body Report, United States – Measures Affecting Trade in 
Large Civil Aircraft (Second Complaint) , WT/DS353/AB/R, adopted 
23 March 2012 
US – Large Civil Aircraft 
(2nd complaint) Panel Report, United States – Measures Affecting Trade in Large Civil 
Aircraft (Second Complaint) , WT/DS353/R, adopted 23 March 2012, 
as modified by Appellate Body Report WT/DS353/AB/R 
US – Lead and Bismuth II Appellate Body Report, United States – Imposition of Countervailing 
Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel 
Products Originating in the United Kingdom , WT/DS138/AB/R, 
adopted 7 June 2000, DSR 2000:V, 2595 
US – Lead and Bismuth II Panel Report, United States – Imposition of Countervailing Duties on 
Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom , WT/DS138/R and Corr.2, 
adopted 7 June 2000, upheld by Appellate Body Report 
WT/DS138/AB/R, DSR 2000:VI, 2623 
US – Line Pipe Appellate Body Report, United States – Definitive Safeguard 
Measures on Imports of Circular Welded Carbon Quality Line Pipe 
from Korea , WT/DS202/AB/R, adopted 8 March 2002, DSR 2002:IV, 
1403 
US – Line Pipe Panel Report, United States – Definitive Safeguard Measures on 
Imports of Circular Welded Carbon  Quality Line Pipe from Korea , 
WT/DS202/R, adopted 8 March 2002, as modified by Appellate Body Report WT/DS202/AB/, DSR 2002:IV, 1473 
US – Line Pipe 
(Article 21.3(c)) Report of the Arbitrator, United States – Definitive Safeguard 
Measures on Imports of Circular Welded Carbon Quality Line Pipe 
from Korea – Arbitration under Article 21.3(c) of the DSU , 
WT/DS202/17, 26 July 2002, DSR 2002:V, 2061 
US – Offset Act 
(Byrd Amendment) Appellate Body Report, United States – Continued Dumping and 
Subsidy Offset Act of 2000 , WT/DS217/AB/R, WT/DS234/AB/R, 
adopted 27 January 2003, DSR 2003:I, 375 
US – Offset Act 
(Byrd Amendment) Panel Report, United States – Continued Dumping and Subsidy 
Offset Act of 2000 , WT/DS217/R, WT/DS234/R, adopted 27 January 
2003, as modified by Appellate Body Report WT/DS217/AB/R, 
WT/DS234/AB/R, DSR 2003:II, 489 
US – Offset Act 
(Byrd Amendment) 
(Article 21.3(c)) Award of the Arbitrator, United States – Continued Dumping and 
Subsidy Offset Act of 2000 – Arbitration under Article 21.3(c) of the 
DSU, WT/DS217/14, WT/DS234/22, 13 June 2003, DSR 2003:III, 
1163 
US – Offset Act 
(Byrd Amendment) (Brazil) 
(Article 22.6 – US) Decision by the Arbitrator, United States – Continued Dumping and 
Subsidy Offset Act of 2000, Original Complaint by Brazil – Recourse 
to Arbitration by the United States under Article 22.6 of the DSU , 
WT/DS217/ARB/BRA, 31 August 2004, DSR 2004:IX, 4341 WT/AB/18 
 
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 Short title Full case title and citation 
US – Offset Act 
(Byrd Amendment) 
(Canada)  
(Article 22.6 – US) Decision by the Arbitrator, United States – Continued Dumping and 
Subsidy Offset Act of 2000, Original Complaint by Canada – 
Recourse to Arbitration by the United States under Article 22.6 of 
the DSU , WT/DS234/ARB/CAN, 31 August 2004, DSR 2004:IX, 4425  
US – Offset Act 
(Byrd Amendment) (Chile) 
(Article 22.6 – US) Decision by the Arbitrator, United States – Continued Dumping and 
Subsidy Offset Act of 2000, Original Complaint by Chile – Recourse 
to Arbitration by the United States under Article 22.6 of the DSU , 
WT/DS217/ARB/CHL, 31 August 2004, DSR 2004:IX, 4511 
US – Offset Act 
(Byrd Amendment) (EC) (Article 22.6 – US) Decision by the Arbitrator, United States – Continued Dumping and 
Subsidy Offset Act of 2000, Original Complaint by the European Communities – Recourse to Arbitration by the United States under Article 22.6 of the DSU , WT/DS217/ARB/EEC, 31 August 2004, 
DSR 2004:IX, 4591 
US – Offset Act 
(Byrd Amendment) (India) 
(Article 22.6 – US) Decision by the Arbitrator, United States – Continued Dumping and 
Subsidy Offset Act of 2000, Original Complaint by India – Recourse 
to Arbitration by the United States under Article 22.6 of the DSU , 
WT/DS217/ARB/IND, 31 August 2004, DSR 2004:X, 4691 
US – Offset Act 
(Byrd Amendment) (Japan) 
(Article 22.6 – US) Decision by the Arbitrator, United States – Continued Dumping and 
Subsidy Offset Act of 2000, Original Complaint by Japan – Recourse 
to Arbitration by the United States under Article 22.6 of the DSU , 
WT/DS217/ARB/JPN, 31 August 2004, DSR 2004:X, 4771 
US – Offset Act 
(Byrd Amendment) (Korea) 
(Article 22.6 – US) Decision by the Arbitrator, United States – Continued Dumping and 
Subsidy Offset Act of 2000, Original Complaint by Korea – Recourse 
to Arbitration by the United States under Article 22.6 of the DSU , 
WT/DS217/ARB/KOR, 31 August 2004, DSR 2004:X, 4851 
US – Offset Act 
(Byrd Amendment) (Mexico) 
(Article 22.6 – US) Decision by the Arbitrator, United States – Continued Dumping and 
Subsidy Offset Act of 2000, Original Complaint by Mexico – Recourse to Arbitration by the United States under Article 22.6 of 
the DSU , WT/DS234/ARB/MEX, 31 August 2004, DSR 2004:X, 4931 
US – Oil Country Tubular 
Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of 
Anti-Dumping Measures on Oil Country Tubular Goods from 
Argentina , WT/DS268/AB/R, adopted 17 December 2004, 
DSR 2004:VII, 3257 
US – Oil Country Tubular 
Goods Sunset Reviews Panel Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina , 
WT/DS268/R and Corr.1, adopted 17 December 2004, as modified 
by Appellate Body Report W/ DS/268/AB/R, DSR 2004:VIII, 3421 
US – Oil Country Tubular 
Goods Sunset Reviews 
(Article 21.3(c)) Award of the Arbitrator, United States – Sunset Reviews of 
Anti-Dumping Measures on Oil Country Tubular Goods from 
Argentina – Arbitration under Article 21.3(c) of the DSU , 
WT/DS268/12, 7 June 2005, DSR 2005:XXIII, 11619 
US – Oil Country Tubular 
Goods Sunset Reviews 
(Article 21.5 – Argentina) Appellate Body Report, United States – Sunset Reviews of 
Anti-Dumping Measures on Oil Country Tubular Goods from 
Argentina – Recourse to Article 21.5 of the DSU by Argentina , 
WT/DS268/AB/RW, adopted 11 May 2007, DSR 2007:IX, 3523 
US – Oil Country Tubular 
Goods Sunset Reviews 
(Article 21.5 – Argentina) Panel Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina – Recourse 
to Article 21.5 of the DSU by Argentina , WT/DS268/RW, adopted 
11 May 2007, as modified by Appellate Body Report 
WT/DS268/AB/RW, DSR 2007:IX-X, 3609 
US – Orange Juice (Brazil) Panel Report, United States – Anti-Dumping Administrative Reviews 
and Other Measures Related to Imports of Certain Orange Juice 
from Brazil , WT/DS382/R, adopted 17 June 2011 WT/AB/18 
 
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 Short title Full case title and citation 
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of 
Poultry from China , WT/DS392/R, adopted 25 October 2010, 
DSR 2010:V, 1909 
US – Section 110(5) 
Copyright Act Panel Report, United States – Section 110(5) of the US Copyright 
Act, WT/DS160/R, adopted 27 Ju ly 2000, DSR 2000:VIII, 3769 
US – Section 110(5) 
Copyright Act 
(Article 21.3(c)) Award of the Arbitrator, United States – Section 110(5) of the US 
Copyright Act – Arbitration under Article 21.3(c) of the DSU , 
WT/DS160/12, 15 January 2001, DSR 2001:II, 657 
US – Section 110(5) 
Copyright Act  (Article 25) Award of the Arbitrators, United States – Section 110(5) of the US 
Copyright Act – Recourse to Arbitration under Article 25 of the DSU , 
WT/DS160/ARB25/1, 9 November 2001, DSR 2001:II, 667 
US – Section 129(c)(1) 
URAA Panel Report, United States – Section 129(c)(1) of the Uruguay 
Round Agreements Act , WT/DS221/R, adopted 30 August 2002, 
DSR 2002:VII, 2581 
US – Section 211 
Appropriations Act Appellate Body Report, United States – Section 211 Omnibus 
Appropriations Act of 1998 , WT/DS176/AB/R, adopted 1 February 
2002, DSR 2002:II, 589 
US – Section 211 
Appropriations Act Panel Report, United States – Section 211 Omnibus Appropriations 
Act of 1998 , WT/DS176/R, adopted 1 February 2002, as modified by 
Appellate Body Report WT/DS176/AB/R, DSR 2002:II, 683 
US – Section 301 Trade Act Panel Report, United States – Sections 301-310 of the Trade Act of 
1974, WT/DS152/R, adopted 27 January 2000, DSR 2000:II, 815 
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain 
Shrimp and Shrimp Products , WT/DS58/AB/R, adopted 6 November 
1998, DSR 1998:VII, 2755 
US – Shrimp Panel Report, United States – Import Prohibition of Certain Shrimp 
and Shrimp Products , WT/DS58/R and Corr.1, adopted 6 November 
1998, as modified by Appellate Body Report WT/DS58/AB/R, 
DSR 1998:VII, 2821 
US – Shrimp 
(Article 21.5 – Malaysia) Appellate Body Report, United States – Import Prohibition of Certain 
Shrimp and Shrimp Products – Recourse to Article 21.5 of the DSU 
by Malaysia , WT/DS58/AB/RW, adopted 21 November 2001, 
DSR 2001:XIII, 6481 
US – Shrimp 
(Article 21.5 – Malaysia) Panel Report, United States – Import Prohibition of Certain Shrimp 
and Shrimp Products – Recourse to Article 21.5 of the DSU by 
Malaysia , WT/DS58/RW, adopted 21 November 2001, upheld by 
Appellate Body Report WT/D S58/AB/RW, DSR 2001:XIII, 6529 
US – Shrimp (Ecuador) Panel Report, United States – Anti-Dumping Measure on Shrimp 
from Ecuador , WT/DS335/R, adopted on 20 February 2007, 
DSR 2007:II, 425 
US – Shrimp (Thailand) / 
US – Customs Bond 
Directive Appellate Body Report, United States – Measures Relating to Shrimp 
from Thailand / United States – Customs Bond Directive for 
Merchandise Subject to Anti-Dumping/Countervailing Duties , 
WT/DS343/AB/R / WT/DS345/AB/R, adopted 1 August 2008, DSR 2008:VII, 2385 / DSR 2008:VIII, 2773 
US – Shrimp (Thailand) Panel Report, United States – Measures Relating to Shrimp from 
Thailand , WT/DS343/R, adopted 1 August 2008, as modified by 
Appellate Body Report WT/DS343/AB/R / WT/DS345/AB/R, 
DSR 2008:VII, 2539 
US – Shrimp (Viet Nam) Panel Report, United States – Anti-Dumping Measures on Certain 
Shrimp from Viet Nam , WT/DS404/R, adopted 2 September 2011 WT/AB/18 
 
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 Short title Full case title and citation 
US – Shrimp and 
Sawblades Panel Report, United States – Anti-Dumping Measures on Certain 
Shrimp and Diamond Sawblades from China , WT/DS422/R and 
Add.1, adopted 23 July 2012 
US – Softwood Lumber III Panel Report, United States – Preliminary Determinations with 
Respect to Certain Softwood Lumber from Canada , WT/DS236/R, 
adopted 1 November 2002, DSR 2002:IX, 3597 
US – Softwood Lumber IV Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from 
Canada , WT/DS257/AB/R, adopted 17 February 2004, DSR 2004:II, 
571 
US – Softwood Lumber IV Panel Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from 
Canada , WT/DS257/R and Corr.1, adopted 17 February 2004, as 
modified by Appellate Body Report WT/DS257/AB/R, DSR 2004:II, 641 
US – Softwood Lumber IV 
(Article 21.5 – Canada) Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from 
Canada – Recourse by Canada to Article 21.5 of the DSU , 
WT/DS257/AB/RW, adopted 20 De cember 2005, DSR 2005:XXIII, 
11357 
US – Softwood Lumber IV 
(Article 21.5 – Canada) Panel Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from 
Canada – Recourse by Canada  to Article 21.5 [of the DSU] , 
WT/DS257/RW, adopted 20 December 2005, upheld by Appellate Body Report WT/DS257/AB/R W, DSR 2005:XXIII, 11401 
US – Softwood Lumber V Appellate Body Report, United States – Final Dumping 
Determination on Softwood Lumber from Canada , WT/DS264/AB/R, 
adopted 31 August 2004, DSR 2004:V, 1875 
US – Softwood Lumber V Panel Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada , WT/DS264/R, adopted 31 August 
2004, as modified by Appellate Body Report WT/DS264/AB/R, DSR 2004:V, 1937 
US – Softwood Lumber V  
(Article 21.3(c))  Report of the Arbitrator, United States – Final Dumping 
Determination on Softwood Lumber from Canada – Arbitration under 
Article 21.3(c) of the DSU , WT/DS264/13, 13 December 2004, 
DSR 2004:X, 5011 
US – Softwood Lumber V 
(Article 21.5 – Canada) Appellate Body Report, United States – Final Dumping 
Determination on Softwood Lumber from Canada – Recourse to 
Article 21.5 of the DSU by Canada , WT/DS264/AB/RW, adopted 
1 September 2006, DSR 2006:XII, 5087 
US – Softwood Lumber V 
(Article 21.5 – Canada) Panel Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada – Recourse to Article 21.5 of the 
DSU by Canada , WT/DS264/RW, adopted 1 September 2006, as 
reversed by Appellate Body Report WT/DS264/AB/RW, 
DSR 2006:XII, 5147 
US – Softwood Lumber VI Panel Report, United States – Investigation of the International 
Trade Commission in Softwood Lumber from Canada , WT/DS277/R, 
adopted 26 April 2004, DSR 2004:VI, 2485 
US – Softwood Lumber VI 
(Article 21.5 – Canada) Appellate Body Report, United States – Investigation of the 
International Trade Commission in Softwood Lumber from Canada – 
Recourse to Article 21.5 of the DSU by Canada , WT/DS277/AB/RW, 
adopted 9 May 2006, and Corr.1, DSR 2006:XI, 4865 WT/AB/18 
 
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 Short title Full case title and citation 
US – Softwood Lumber VI 
(Article 21.5 – Canada) Panel Report, United States – Investigation of the International 
Trade Commission in Softwood Lumber from Canada – Recourse to 
Article 21.5 of the DSU by Canada , WT/DS277/RW, adopted 9 May 
2006, as modified by Appellate Body Report WT/DS277/AB/RW, DSR 2006:XI, 4935 
US – Stainless Steel 
(Korea) Panel Report, United States – Anti-Dumping Measures on Stainless 
Steel Plate in Coils and Stainless Steel Sheet and Strip from Korea , 
WT/DS179/R, adopted 1 February 2001, DSR 2001:IV, 1295 
US – Stainless Steel 
(Mexico) Appellate Body Report, United States – Final Anti-Dumping 
Measures on Stainless Steel from Mexico , WT/DS344/AB/R, adopted 
20 May 2008, DSR 2008:II, 513 
US – Stainless Steel 
(Mexico) Panel Report, United States – Final Anti-Dumping Measures on 
Stainless Steel from Mexico , WT/DS344/R, adopted 20 May 2008, as 
modified by Appellate Body Report WT/DS344/AB/R, DSR 2008:II, 
599 
US – Stainless Steel 
(Mexico)  (Article 21.3(c)) Award of the Arbitrator, United States – Final Anti-Dumping 
Measures on Stainless Steel from Mexico – Arbitration under Article 21.3(c) of the DSU , WT/DS344/15, 31 October 2008, 
DSR 2008:XX, 8619 
US – Steel Plate Panel Report, United States – Anti-Dumping and Countervailing 
Measures on Steel Plate from India , WT/DS206/R and Corr.1, 
adopted 29 July 2002, DSR 2002:VI, 2073 
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard 
Measures on Imports of Certain Steel Products , WT/DS248/AB/R, 
WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, 
WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, 
WT/DS259/AB/R, adopted 10 December 2003, DSR 2003:VII, 3117  
US – Steel Safeguards Panel Reports, United States – Definitive Safeguard Measures on 
Imports of Certain Steel Products , WT/DS248/R / WT/DS249/R / 
WT/DS251/R / WT/DS252/R / WT/DS253/R / WT/DS254/R / 
WT/DS258/R / WT/DS259/R / and Corr.1, adopted 10 December 
2003, as modified by Appellate Body Report WT/DS248/AB/R, 
WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, 
WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, 
WT/DS259/AB/R, DSR 2003:VIII, 3273  
US – Textiles Rules of 
Origin Panel Report, United States – Rules of Origin for Textiles and 
Apparel Products , WT/DS243/R and Corr.1, adopted 23 July 2003, 
DSR 2003:VI, 2309 
US – Tuna II (Mexico) Appellate Body Report, United States – Measures Concerning the 
Importation, Marketing and Sale of Tuna and Tuna Products , 
WT/DS381/AB/R, adopted 13 June 2012 
US – Tuna II (Mexico) Panel Report, United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products , WT/DS381/R, 
adopted 13 June 2012, as modified by Appellate Body Report WT/DS381/AB/R 
US – Tyres (China) Appellate Body Report, United States – Measures Affecting Imports 
of Certain Passenger Vehicle and Light Truck Tyres from China , 
WT/DS399/AB/R, adopted 5 October 2011 
US – Tyres (China) Panel Report, United States – Measures Affecting Imports of Certain 
Passenger Vehicle and Light Truck Tyres from China , WT/DS399/R, 
adopted 5 October 2011, upheld by Appellate Body Report WT/DS399/AB/R  WT/AB/18 
 
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 Short title Full case title and citation 
US – Underwear Appellate Body Report, United States – Restrictions on Imports of 
Cotton and Man-made Fibre Underwear , WT/DS24/AB/R, adopted 
25 February 1997, DSR 1997:I, 11 
US – Underwear Panel Report, United States – Restrictions on Imports of Cotton and 
Man-made Fibre Underwear , WT/DS24/R, adopted 25 February 
1997, as modified by Appellate Body Report WT/DS24/AB/R, 
DSR 1997:I, 31 
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, 3 
US – Upland Cotton Panel Report, United States – Subsidies on Upland Cotton , 
WT/DS267/R, Corr.1, and Add.1 to Add.3, adopted 21 March 2005, as modified by Appellate Body Report WT/DS267/AB/R, 
DSR 2005:II, 299 
US – Upland Cotton 
(Article 21.5 – Brazil) Appellate Body Report, United States – Subsidies on Upland Cotton 
– Recourse to Article 21.5 of the DSU by Brazil , WT/DS267/AB/RW, 
adopted 20 June 2008, DSR 2008:III, 809 
US – Upland Cotton 
(Article 21.5 – Brazil) Panel Report, United States – Subsidies on Upland Cotton – 
Recourse to Article 21.5 of the DSU by Brazil , WT/DS267/RW and 
Corr.1, adopted 20 June 2008, as modified by Appellate Body 
Report WT/DS267/AB/RW, DSR 2008:III, 997-DSR 2008:VI, 2013 
US – Upland Cotton 
(Article 22.6 – US I) Decision by the Arbitrator, United States – Subsidies on Upland 
Cotton – Recourse to Arbitration by the United States under 
Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, 
WT/DS267/ARB/1, 31 August 2009, DSR 2009:IX, 3871 
US – Upland Cotton 
(Article 22.6 – US II) Decision by the Arbitrator, United States – Subsidies on Upland 
Cotton – Recourse to Arbitration by the United States under 
Article 22.6 of the DSU and Article 7.10 of the SCM Agreement, 
WT/DS267/ARB/2 and Corr.1, 31 August 2009, DSR 2009:IX, 4083 
US – Wheat Gluten Appellate Body Report, United States – Definitive Safeguard 
Measures on Imports of Wheat Gluten from the European 
Communities , WT/DS166/AB/R, adopted 19 January 2001, 
DSR 2001:II, 717 
US – Wheat Gluten Panel Report, United States – Definitive Safeguard Measures on 
Imports of Wheat Gluten from the European Communities , 
WT/DS166/R, adopted 19 January 2001, as modified by Appellate 
Body Report WT/DS166/AB/R, DSR 2001:III, 779 
US – Wool Shirts and 
Blouses Appellate Body Report, United States – Measure Affecting Imports of 
Woven Wool Shirts and Blouses from India , WT/DS33/AB/R, 
adopted 23 May 1997, and Corr.1, DSR 1997:I, 323 
US – Wool Shirts and 
Blouses Panel Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/R, adopted 23 May 
1997, upheld by Appellate Body Report WT/DS33/AB/R, 
DSR 1997:I, 343 
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and 
Methodology for Calculating Dumping Margins ("Zeroing") , 
WT/DS294/AB/R, adopted 9 May 2006, and Corr.1, DSR 2006:II, 
417 
US – Zeroing (EC) Panel Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") , WT/DS294/R, adopted 
9 May 2006, as modified by Appellate Body Report WT/DS294/AB/R, DSR 2006:II, 521 WT/AB/18 
 
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 Short title Full case title and citation 
US – Zeroing (EC) 
(Article 21.5 – EC) Appellate Body Report, United States – Laws, Regulations and 
Methodology for Calculating Dumping Margins ("Zeroing") – 
Recourse to Article 21.5 of the DSU by the European Communities , 
WT/DS294/AB/RW and Corr.1, adopted 11 June 2009, 
DSR 2009:VII, 2911 
US – Zeroing (EC) 
(Article 21.5 – EC) Panel Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the DSU by the European Communities , 
WT/DS294/RW, adopted 11 June 2009, as modified by Appellate 
Body Report WT/DS294/AB/RW, DSR 2009:VII, 3117 
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to 
Zeroing and Sunset Reviews , WT/DS322/AB/R, adopted 23 January 
2007, DSR 2007:I, 3 
US – Zeroing (Japan) Panel Report, United States – Measures Relating to Zeroing and 
Sunset Reviews , WT/DS322/R, adopted 23 January 2007, as 
modified by Appellate Body Report WT/DS322/AB/R, DSR 2007:I, 
97 
US – Zeroing (Japan) 
(Article 21.3(c)) Report of the Arbitrator, United States – Measures Relating to 
Zeroing and Sunset Reviews – Arbitration under Article 21.3(c) of 
the DSU , WT/DS322/21, 11 May 2007, DSR 2007:X, 4160 
US – Zeroing (Japan) 
(Article 21.5 – Japan) Appellate Body Report, United States – Measures Relating to 
Zeroing and Sunset Reviews – Recourse to Article 21.5 of the DSU 
by Japan , WT/DS322/AB/RW, adopted 31 August 2009, 
DSR 2009:VIII, 3441 
US – Zeroing (Japan) 
(Article 21.5 – Japan) Panel Report, United States – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan , 
WT/DS322/RW, adopted 31 August 2009, upheld by Appellate Body 
Report WT/DS322/AB/R W, DSR 2009:VIII, 3553 
US – Zeroing (Korea) Panel Report, United States – Use of Zeroing in Anti-Dumping 
Measures Involving Products from Korea , WT/DS402/R, adopted 
24 February 2011 
  
__________