WT/AB/ 28 
 
22 June 2018  
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APPELLATE  BODY  
 
 
ANNUAL REPORT FOR 20 17 
 
 
 
 
 
FEBRUARY  2018 
  WT/AB/28  
 
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The Appellate  Body  welcomes comments and inquiries  
regarding this Annual R eport at the  
following address:  
 
Appellate  Body Secretariat  
World Trade Organization  
rue de Lausanne 154  
1202 Geneva, Switzerland  
e-mail: appellatebody.registry@wto.org  
<https://www.wto.org/english/tratop_e/dispu_e/appellate_body_e.htm > WT/AB/28  
 
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CONTENTS  
FOREWORD  ................................ ................................ ................................ ......................  6 
1   INTRODUCT ION ................................ ................................ ................................ ..........  8 
2   COMPOSITION OF THE APPELLATE  BODY  ................................ ................................ .. 11 
3   APPEALS  ................................ ................................ ................................ ...................  13 
3.1   Appellate  Body Report, Russian Federation – Measures on the Importation of Live 
Pigs, Pork and Oth er Pig Products from the European  Union , WT/DS475/AB/R  ............ 14 
3.2   Appellate  Body Report, United  States  – Certain Methodologies and Their Application 
to Anti -Dumping Proceedings Involving China , WT/DS471/AB/R  ................................ .......20 
3.3   Appellate  Body Report, United  States  – Conditional Tax Incentives for Large Civil 
Aircraft , WT/DS487/AB/R  ................................ ................................ .................... 31 
3.4   Appellate  Body Report, European  Union  – Anti-Dumping Measures on Imports of 
Certain Fatty Alcohols from Indonesia , WT/DS442/AB/R  ................................ .......... 39 
3.5   Appellate  Body Report, Indonesia – Importation of Horticultural Products, Animals 
and Animal Products , WT/DS477/AB/R and  WT/DS478/AB/R  ................................ ....46 
4   PARTICIPANTS AND THI RD PARTICIPANTS IN A PPEALS  ................................ ..........  57 
5   PROCEDURAL ISSUES AR ISING IN APPEALS  ................................ .............................  58 
6   ARBITRATIONS UNDER ARTICLE  21.3(C) OF THE DSU  ................................ ..............  62 
7   OTHER ACTIVITIES  ................................ ................................ ................................ ... 67 
ANNEXES  
Annex 1  Speech by Appellate  Body Chair Ujal Singh Bhatia on 8 June 2017  ............................ 69 
Annex 2   Background note on Rule 15 of the Working Procedures for Appellate  Body 
Review – Commun ication from the Appellate  Body ................................ .................. 74 
Annex 3  Program – WTO@20 Conference, New Delhi ................................ ........................... 76 
Annex 4 Members of the Appellate  Body ................................ ................................ ............ 79 
Annex 5 Former Appellate  Body members and chairpersons  ................................ ................. 83 
Annex 6 Appeals Filed: 1995 -2017 ................................ ................................ .................... 85 
Annex 7 Percentage of Panel Reports appealed by year of adoption: 1996 -2017 ..................... 87 
Annex 8 WTO agreements addressed in Appellate  Body reports circulated: 1996 -2017 ............ 88 
Annex 9 Participants and third participants in appeals: 1996 -2017 ................................ ....... 90  WT/AB/28  
 
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WTO  ABBREVIATIONS USED I N THIS ANNUAL REPORT   
Abbreviation  Description  
Accession Protocol  Protocol on the Accession of the Russian Federation to the WTO  
AFA adverse facts available  
ALOP appropriate level of protection  
Anti-Dumping  Agreement  Agreement on Implementation of Article  VI of the 
General  Agreement  on Tariffs and Trade 1994  
ASF African swine fever  
B&O business and occupation  
BCI business confidential information  
CONNUMs  control numbers  
DDSR  WTO Digital Dispute Settlement Registry  
DPM differential pricing methodology  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the 
Settlement  of Disputes  
EC European Communities  
ELSA European Law Students' Association  
ESSB 5952  Engrossed Substitute Senate Bill 5952  
EU European  Union  
GATS  General  Agreement  on Trade in Services  
GATT 1994  General  Agreement  on Tariffs and Trade 1994  
HSBI highly sensitive business information  
Import Licensing  Agreement  Agreement on Import Licensing Procedures  
NME non-market economy  
NME-wide entity  non-market -economy -wide entity  
OIE World Organisation for Animal Health  
RCW Revised Code of Washington  
RPT reasonable period of time  
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 Agreement  Agreement on the Application of Sanitary and Phytosanitary 
Measures  
TBT Agreement  Agreement on Technical Barriers to Trade  
T-T transaction -to-transaction  
URAA  Uruguay Round  Agreement s 
USDOC  United  States  Department of Commerce  
USTR  United  States  Trade Representative  
Working Procedures  Working Procedures for Appellate Review  WT/AB/28  
 
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Abbreviation  Description  
W-T weighted average -to-transaction  
WTO World Trade Organization  
WTO Agreement  Marrakesh  Agreement  Establishing the World Trade Organization  
W-W weighted average -to-weighted average  WT/AB/28  
 
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FOREWORD  
2017 will be remembered  as an extraordinarily strenuous year for the Appellate  Body and the 
WTO dispute settlement system as a whole. The unprecedented challenges that confront us today 
stem from two interrelated factors. On the one hand, the inflow of disputes keeps increasing 
steadily, thereby stretching our ability to staff cases and complete our work in a timely fashion. 
On the other hand, the composition of the Appellate  Body is down to four members due to the 
DSB's inability to fi ll three outstanding vacancies.  
The Appellate  Body was engaged in appellate proceedings throughout the whole year. It circulated 
reports in five disputes : Russia – Pigs; US – Anti-Dumping Methodologies (China) ; US – Tax 
Incentives ; EU – Fatty Alcohols  (Indonesia) ; and  Indonesia – Import Licensing . The matters 
addressed by these reports included Members' terms of accessio n to the W TO, the SPS  Agreement , 
the Anti-Dumping  Agreement , the SCM  Agreement , the Impor t Licensing  Agreement , 
the GATT  1994, and the DSU. These disputes concerned momentous and delicate issues such as 
animal disease control, domestic tax regimes, and fair trade. The exceptionally large appeal in 
EC and certain member States – Large Civil Aircraft ( Article  21.5 – US), filed  in 2016, occupied a 
significant portion of Appellate  Body Secretariat staff resources throughout 2017. The Secretariat 
also assisted an arbitrator in issuing her award concerning the reasonable period of time for 
implementation of the panel and Appellate  Body reports in US – Washing Machines . Later in 2017, 
six more appeals were filed: Russia – Light Commercial Vehicles ; US – Large Civil Aircraft 
(Article  21.5 – EC); EU – PET (Pakistan) ; Indonesia – Iron or Steel Products ; Brazil – Taxation ; 
and US – Tuna II (Mexico) ( Article  21.5 – US) / US – Tuna II (Mexico) ( Article  21.5 – Mexico II). 
Moreover, the Secretariat that assists panels has estimated that over ten panel reports could be 
issued to the parties during the course of 2018.  
Under normal circumstances , the size, complexity, and number of these disputes would strain the 
Appellate  Body's capacity to its limits for a prolonged period of time. However, the current 
circumstances are all but normal. The second terms of office of my dear friends and distingui shed 
colleagues Mr Ricardo Ramírez -Hernández and Mr Peter Van den Bossche expired in June and 
December 2017, respectively. Furthermore, Mr Hyun Chong Kim resigned from the Appellate  Body 
on 1 August 2017 . As a result, three Appellate  Body seats were left v acant and need to be filled 
immediately, as required by Article  17.2 of the DSU. Unfortun ately, despite the numerous 
DSB meetings held between February and December 2017, WTO Members remain unable to reach 
a consensus to initiate the appointment processes for three new Appellate  Body members. The 
main points of contention include the application of Rule 15 of the Working Procedures for 
Appellate Review, which allows Appellate  Body members who are sitting on divisions at the time of 
expiration of their terms  of office to complete their work on the appeals to which such divisions are 
assigned. The vast majority of WTO Members argue that Rule 15 has been in force since the 
inception of the Appellate  Body and has been applied numerous times without raising any c oncern. 
One delegation, however, maintains that the application of Rule 15 raises systemic concerns, and 
has expressed reservations to launching new selection processes as long as such concerns are not 
addressed by the DSB.  Moreover, allegations have been made that, in certain disputes, the 
Appellate  Body addressed issues that were not strictly necessary for its disposition of the appeal.  
The ongoing stalemate, coupled with the heavy workload we are currently facing, has the potential 
to disrupt the effectiveness and overall functioning of the Appellate  Body. Unless the 
seven -member composition of the Appellate  Body is promptly restored, th e number of active 
Divisions will decrease and the time necessary to dispose of appeals  will extend far beyond the 
60- and 90 -day periods set forth in Article  17.5 of the DSU. Moreover, the fact that the 
Appellate  Body is operating at half -capacity threate ns to undermine the collegiality of its 
deliberative processes, as reflected in Rule 4 of the Working Procedures for Appellate Review. 
Unless WTO Members take swift and robust action to remedy this situation, there may soon come 
a time when the Appellate  Body will find itself unable to fulfil its mandate. Such a scenario would 
deal a serious blow to the multilateral trading system. The institution of a standing judicial body 
tasked with reviewing panel decisions is widely considered as the crow ning achievem ent of the 
Uruguay  Round of negotiations. Impairing that achievement would deprive the WTO dispute 
settlement system of its ability to ensure the principled and consistent application of multilateral 
trade rules . WT/AB/28  
 
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Faced with these daunting challenges, we ar e doubling down on our efforts to maintain high 
standards of quality  and coherence  in our reports. For instance, we are continuing the practice, 
initiated in 2015, of annexing to our reports the executive summaries of the arguments submitted 
by the partici pants and third  participants, instead of summarizing them in the body of the reports 
themselves. We are also providing more complete descriptions of our findings and conclusions, so 
as to make our central reasoning more quickly accessible to those who turn  first to the 
"findings  and conclusions" section of our reports. Finally, we are striving for clarity and concision in 
our reasoning, so as to make the reading of our reports more "user friendly" and the use of our 
limited resources more efficient. In this  respect, I am pleased to report that none of the 
Appellate  Body reports circulated in 2 017 exceeds 70 pages in length.  
Despite these efforts, and hoping that the ongoing crisis comes to an end soon, there remains 
much room for improvement in the WTO dispu te settlement system, and greater engagement is 
required to address its long-standing structural problems. As Chair of the Appellate  Body, I have 
continued my predecessors' tradition of holding informal consultations with WTO Members , 
particularly those wh o are active users of the system, on possible further improvements to internal 
procedures and practices. These consultations included discussions of concerns relating to the 
independence and impartiality of the Appellate  Body and practical concerns regardi ng the 
resources necessary to meet the growing demands of the dispute settlement system. The 
constructive nature of the consultations was encouraging, and persuaded me to continue on the 
path of broad and frequent engagement with WTO Members.  
It is our sha red responsibility to maintain and preserve the trust and credibility that the 
WTO dispute settlement system in general, and the Appellate  Body in particular, have built up over 
more than twenty years. Only by embracing this responsibility and engaging in constructive 
dialogue will the WTO Membership succeed in nurturing a system that is uniquely effective,  
but which cannot be taken for granted.  
Ujal Singh Bhatia  
Chair, Appellate  Body WT/AB/28  
 
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WORLD TRADE ORGANIZA TION  
APPELLATE  BODY  
ANNUAL REPORT FOR 20 17 
1  INTRODUCTION  
This Annual Report  summarizes the activities of the Appellate  Body and its Secretariat for the 
year 2017. 
Dispute settlement  in the World Trade Organization (WTO) is regulated by the 
Understanding  on Rules and Procedures Governing the Settleme nt 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 identifie s the purpose  and role  of the dispute settlement 
system as follows : "The dispute settl ement 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 provisions 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 (DSB), which is c omposed 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 anot her Member ."1 The DSU procedures apply to disputes 
arising under any of the covered agreements listed in Appendix 1 to the DSU, which include the 
WTO Agreement  and all the multilateral agreements annexed to it relating to trade in goods2, 
trade in services3, and the protection of intellectual property rights4, as well as the DSU itself. 
Pursuant to Article  1.2 of the DSU, the special or additional rules and procedures listed in 
Appendix  2 of the DSU 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 Agreement5 is subject to the adoption of a decision by the parties to each 
of these agreements setting out the terms for its appli cation 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 produce a mutually agreed solution, the dispute may advance to the 
adjudicative stage in which the complaining Member requests the DSB to establish a panel to 
examine the matter.8 Panelists are chosen by agreement of the par ties, 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/28  
 
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main parties and also by third parties that have notified their interest in the dispute to the DSB. 
Panels usually hold two meetings with the parties, one of which als o 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 Appellate  Body. The Appellate  Body is composed 
of seven members who are each appointed to a four -year 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. Members 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. They shall be unaffiliated with any 
government. Moreover, the Appellate  Body membership shall be broadly representative of the 
membership of the WTO. Appellate  Body member s 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 member s. The process for the selection of Divisions is designed to ensure 
randomness, unpredictab ility, and  opportunity for all m embers to serve, regardless of their 
national origin. To ens ure consistency and coherence in decision -making, Divisions exch ange views 
with the other four m embers of the Appellate  Body before finalizing Appellate  Body reports. The 
Appellate  Body receives legal and  administrative support from its  Secretariat. The co nduct 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 Disputes13 (Rules of 
Conduct). These Rules emphasize that Appellate  Body member s shall be ind ependent  and 
impartial, avoid any direct or indirect conflict of  interest , and maintain the confidentiality of 
appellate proceedings .14 
Any party to a dispute, other than WTO Members that were third parties  at the panel stage , 
may appeal a panel report to t he Appellate  Body. These third parties may however participate 
and make written and oral submissions in the appellate proceedings. The appeal is limited 
to issues of law covered in the panel report and legal interpretations developed by the panel. 
Appellat e proceedings are conducted in accordance with the procedures established in the DSU 
and the Working Procedures for Appellate Review15 (Working Procedures), drawn up by the  
Appellate  Body in consultation with the Chairperson of the DSB and the Director -General 
of the WTO, and communicated to WTO Members. Proceedings involve the filing of written 
submissions by the participants and third participants, as well as an oral hearing. The 
Appellate  Body report is to be circulated 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 a panel.  
Panel and Appellate  Body reports must be adopted by WTO Members acting collectively through 
the DSB. Under the reverse consensus rule, a report is adopted unless the DSB decides by 
consensus not to adopt the report .16 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 agreement between the 
parties, or through binding arbitration pursuant to Article  21.3(c) of the DSU. In such arbitration, 
                                                
13 The Rules of Conduct, as adopted by the DSB on 3 December 1996 (WT/DSB/RC/1), are incorporated 
into the Working Procedures for Appellate Review (WT/AB/WP/6), as Annex I I thereto. (See  WT/DSB/RC/2, 
WT/AB/WP/W/2)  
14 Former Appellate  Body member s, Secretariat staff and interns are subject to Post Employmen t 
Guidelines, which facilitate compliance with relevant obligations of conduct following a term of service  
(WT/AB/22 ). 
15 Working Procedures for Appellate Review, WT/AB/WP/6, 16 August 2010.  
16 Articles  16.4 and 17.14 of the DSU.  WT/AB/28  
 
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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 the 
panel or Appellate  Body report. However, that time may be shorter or longer, depending upon the 
particular circumstances. Arbitrators have indi cated that the reasonable period of time shall be the 
shortest time possible in the impl ementing Member's legal system.  
Where the parties disagree "as to the existence or consistency with a covered agreement 
of measures taken to comply", the matter may be referred to the original panel in compliance 
proceedings under Article  21.5 of the DSU. In these Article  21.5 compliance proceedings, a panel 
report is issued and may be appealed to the Appellate  Body. 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, th e complaining 
Member may request negotiations with the responding Member with a view to reaching an 
agreement on  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 compensation is agreed upon, the complaining Member 
may request authorization from the DSB, pursuant to Article  22 of the DSU, to suspend the 
application of concessions or other obligatio ns under the WTO agreements to the responding 
Member. The level of the suspension of concessions 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 recom mendations and rulings . The responding Member may request arbitration 
under Article  22.6 of the DSU if it objects to the level of suspension proposed or considers that the 
principles and procedures concerning the suspension of concessions or other obligati ons 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 Mem ber, and if circumstances are serious, the 
complaining Member may seek authorization to suspend concessions with respect to other sectors 
or agreements. The a rbitration under Article  22.6 shall be carried out by the original panel, if its 
members are avail able. Compensation and the suspension of concessions or  other obligations are 
temporary measures; neither is to be preferred to full implementation of a  recommendation to 
bring a measure into conformity with the covered agreements.17 
A party to a dispute ma y request good offices, conciliation, or mediation as alternative methods of 
dispute resolution at any stage of dispute settlement proceedings.18 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.19 Recourse to arbitration, including the procedures to be followed in 
such arbitration proceedings, is subject to mutual agreement of the parties.20 
                                                
17 Article  22.1 of the DSU.  
18 Article  5 of the DSU.  
19 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 re sponding Member. (See Award of the Arbitrators, US – Section  110(5) 
Copyright Act ( Article  25)) 
20 Articles  21 and 22 of the DSU apply mutatis mutandis  to decisions by arbitrators.  WT/AB/28  
 
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2  COMPOSITION OF THE APPELLATE  BODY  
The Appellate  Body is a standing b ody com posed of seven m embers, each appointed by the DSB 
for a term of four years with the possibility of being reappointed once for another four -year term.  
The second term of office of Mr Ricardo Ramírez -Hernández expired on 30 June 2017.21 
On 1 August 201 7, Mr Hyun Chong Kim notified the Chair man of the Appellate  Body of his 
intention to resign from the office of Member of the Appellate  Body with immediate effect .22 On the 
same day, as required by Rule 14 of the Working Procedures for Appellate Review, the Chairman 
of the Appellate  Body informed the DSB Chairman , the Director -General , and the other Members 
of the Appellate  Body of Mr Kim's resignation with immediate e ffect. The second term of office of 
Mr Peter Van den Bossche expired on 11 December 2017.23 
The composition of the Appellate  Body was discussed during numerous DSB meetings throughout 
the year. At the meeting of 25 January 2017, the DSB Chairman drew the Me mbers' attention to 
the forthcoming expiration of the second terms of office of Messrs  Ramírez -Hernández and 
Van den Bossche and called on the DSB to decide , in due course,  on the appointment s of two new 
Appellate  Body members to replace them by the expiry  of the ir second four -year term s.24 
Following that meeting, the DSB Chairman engaged in consultations with Members concerning the 
possible approaches to fill the upcoming vacancies.  During subsequent meetings, Members could 
not come to an agreement as to wh ether the selection processes should be launched and whether 
they should be merged. Several delegations showed support for a single selection process to fill 
both positions at the same time by the end of June 2017, while two delegations expressed their 
preference for undertaking two independent processes.25 At the meeting of 22 May 2017, the 
European  Union  and a group of Latin American Members put on the agenda two separate proposals 
to launch the selection processes. The former covered the replacement of bo th 
Messrs  Ramírez -Hernández and Van  den Bossche, while the latter addressed the replacement of 
Mr Ramírez -Hernández alone.26 Members remained unable to find an agreement on this matter.27 
At the DSB meeting of 20 July 2017, the DSB Chairman observed that Mr Ramírez -Hernández's 
seat had become vacant since 1 July 2017. The Chairman also informed the DSB that 
Mr Ramírez -Herná ndez had been authorized by the Appellate  Body, in accordance with Rule 15  of 
the Working Procedures for Appellate Review  (Rule 15 ), to complete the disposition of the appeals  
to which he had been assigned prior to the expiration of his term of office.28 At subsequent 
DSB meetings, numerous Members expressed their concern at the DSB's inability to find an 
agreement to launch the selection processes for new Appellate  Body Members.29 
At the DSB meeting of 31 August 2017, the DSB Chairman drew the DSB's attention to the 
resignation of Mr Kim from the Appellate  Body on 1 August 2017 and to the fact that the Division 
had completed its work on the  Appellate  Body report in DS442 on 31 July 2017. He also noted that 
this created an immediate vacancy on the Appellate  Body. The Chairman added that, pursuant to 
Article  17.2 of the DSU , the person appointed to replace Mr Kim shall hold office for the rema inder 
of his term.  All Members agreed that the immediate resignation of Mr Kim was the " necessary and 
appropriate" course of action given his appointment with the government of Korea. However, one 
delegation argued that a Division member hearing an appeal must still be an Appellate  Body 
                                                
21 On the same day , the Chairman of the Appellate  Body notified by letter the Chairman of the DSB that, 
in accordance with Rule 15 of the Working Procedures for Appellate Review, the Appellate  Body had authorized 
Mr Ricardo Ramírez -Hernández to complete the disposition of the appeals to which he had been assigned 
before his term  expired. The participants and third participants in the appeals concerned were informed on the 
same day.  
22 See WT/DSB/73.  
23 On 24 November, the Chairman of the Appellate  Body notified by letter the Chairman of the DSB that, 
in accordance with Rule 15 of t he Working Procedures for Appellate Review, the Appellate  Body had authorized 
Mr Peter Van den Bossche to complete the disposition of the appeals to which he had been assigned before the 
expiry of his term on 11 December 2017. The participants and third pa rticipants in the appeals concerned were 
informed on the same day.  
24 See WT/DSB/M/391 . 
25 See WT/DSB/M/392 ; WT/DSB/M/39 4; WT/DSB/M/39 6. 
26 See WT/DSB/M/397.  
27 See WT/DSB/M/397;  WT/DSB/M/398.  
28 See WT/DSB/M/399.  
29 See WT/DSB/M/401.  WT/AB/28  
 
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member at the time of the circulation of the Appellate  Body report. As a result of Mr Kim's 
resignation, the Chairman reported that the DSB was faced  with t hree vacancies on the 
Appellate  Body, and called on the DSB to open three selection processes as soon as possible.30 
At the DSB meetings of 29 September and 23 October 2017, many Members reiterated their 
concerns at the DSB's continued inability to find a consensus on the proposals to launch the 
selection processes. At the DSB meeting of 22 November 2017, a group of 52 Members (including 
the European  Union  and its member States) presented a joint proposal for the immediate initiation 
of the three selection processes  to fill the three Appellate  Body seats left vacant by the expiration 
of the terms of office of Messrs  Ramírez -Hernández and Van  den Bossche and by the resignation of 
Mr Kim.  The proponents stressed how, for the seventh consecutive time , a draft proposal on the 
procedures to carry out the  selection process had been submitted to the DSB , and recalled the 
legal obligation under Article  17.2 of the DSU to fill Appellate  Body vacancies as they arise. 
However, the DSB remained unable to reach a consensus as to the launch of the three selection 
processes .31 On 24 November 2017, the Chairman of the Appellate  Body notified the 
DSB Chairman that Mr Peter Van den Bossche had been authorized by the Appellate  Body, in 
accordance with Rule 15, to  complete the disposition of the appeals  to which he had be en assigned 
prior to the expiration of his term of office on 11 December  2017. On 24 November 2017, 
the Appellate  Body issued a communication containing a background note on Rule 15.32 
Table 1: Composition of the Appellate  Body  in 20 17 
Name  Nationality  Term(s) of office  
Ujal Singh Bhatia  India 2011-2015 
2015-2019 
Thomas R. Graham  United  States  2011-2015 
2015-2019 
Ricardo Ramírez -Hernández * Mexico  2009-2013 
2013-2017 
Hyun Chong Kim**  Korea  2016-2017 
Shree Baboo Chekitan Servansing  Mauritius  2014-2018 
Peter Van den Bossche * Belgium  2009-2013 
2013-2017 
Hong Zhao  China  2016-2020 
* Ricardo Ramírez -Hernández and Peter Van den Bossche's terms as Appellate  Body members ended 
on 30 June and 11 December 2017, respectively. Pursuant to Rule 15 of the Working Procedures, they 
have been authorized to complete the disposition of appeals they had been assigned to while being a 
Member of the Appellate  Body. 
** Hyun Chong Kim resigned from the Appellate  Body, effective  1 August 2017 . 
Pursuant to Rule  5.1 of the Working Procedures, the m embers of the Appellate  Body elected 
Mr Ujal Singh Bhatia  to serve as Chair  of the Appellate  Body from 1 January to 
31 December  2017.33 On 13  December  2017, Mr Ujal Singh Bhatia was re-elected to serve a 
second term as Chair  as of the Appellate  Body, from  1 January 201 8 until 31  December  2018.34 
Biographical in formation about the m embers of the Appellate  Body is provided in Annex  4. A list of 
former Appellate  Body members and Chairpersons is provided in Annex  5. 
The Appellate  Body receives legal and administrative support from the Appellate  Body Secretariat, 
in accordance with Article  17.7 of the DSU. As at 31  December  2017, the Secret ariat comprised a 
Director, nineteen  lawyers, one administrative assistant, and six support staff. Werner  Zdouc has 
been Director of the Appellate  Body Secretariat since 2006.  
                                                
30 See WT /DSB/M/400.  
31 See WT/DSB/M/403.  
32 See Annex 2 below.  
33 See WT/DSB/72.  
34 WT/DSB/75.  WT/AB/28  
 
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3  APPEALS  
Pursuant to Rule 20(1) of the Working Procedures and Article  16(4) of the DSU, an appeal is 
commenced by a party to the dispute giving written notice to the DSB and filing a Notice of Appeal 
with the Appellate  Body Secretariat. Rule 23(1) of the Working 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 Appeal within five days of the filing of the Notice of Appeal.  
Eight panel reports concerning eight matters were appealed in 201 7, and the Appellate  Body's 
work on one appeal filed in 2016 continued through the year . Two of the appeals filed in 2017  
related to compliance proceedings, while all remaining disputes related to original proceedings. 
"Other  appeals" were filed pursuant to Rule 23(1) of the W orking Procedures in six out of the eight 
disputes. Table 2 sets out further information regarding appeals filed in 201 6. Further information 
on the number of appeals filed each year since 199 6 is provided in Annex 9. 
The overall average of panel reports t hat have been appealed from 199 6 to 201 7 is 70%. 
A breakdown of the percentage of panel reports appealed each year is provided in Annex 7. 
Table 2: Appeals filed and pending in 2017  
Panel report appealed  Date of appeal  Appellant a Document  
symbol  Other  
appellant b Document  
symbol  
EC and certain member 
States – Large Civil 
Aircraft ( Article  21.5 – US) 13 October 2016  European 
Union  WT/DS316/29  United 
States  WT/DS316/30  
EU – Fatty Alcohols 
(Indonesia)  10 February 2017  Indonesia  WT/DS442/5  European 
Union  WT/DS442/6  
Indonesia – Import 
Licensing Regimes  17 February 2017  Indonesia  WT/DS477/11  
WT/DS478/11  --- --- 
Russia – Commercial 
Vehicles  20 February 2017  Russian 
Federation  WT/DS479/6  European 
Union  WT/DS479/7  
US – Large Civil Aircraft 
(2nd complaint) 
(Article  21.5 – EU) 29 June 2017  European 
Union  WT/DS353/27  United 
States  WT/DS353/28  
EU – PET (Pakistan)  30 August 2017  European 
Union  WT/DS486/6  Pakistan  WT/DS486/7  
Indonesia – Iron or Steel 
Products  28 September 2017  Indonesia  WT/DS490/5  
WT/DS496/6  Chinese 
Taipei  WT/DS490/6  
Brazil – Taxation  28 September 2017  Brazil  WT/DS472/8  European 
Union  WT/DS472/9  
WT/DS497/6  Japan  WT/DS497/7  
US – Tuna II (Mexico) 
(Article  21.5 – US) /  
US – Tuna II (Mexico) 
(Article  21.5 – Mexico II)  1 December 2017  Mexico  WT/DS381/45  --- --- 
a Pursuant to Rule 20(1) of the Working Procedures . 
b Pursuant to Rule 23(1) of the Working Procedures . 
 WT/AB/28  
 
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Appellate  Body  Reports  
Six Appellate  Body reports concerning five matters were circulated in 201 7, the details of which 
are summarized in Table  3. As of the end of 201 7, the Appellate  Body had circulated a total 
of 150 reports.  
Table 3: Appellate  Body  reports circulated in 2017  
Case  Document symbol  Date circulated  Date adopted  
by the DSB  
Russia – Pigs (EU)  WT/DS475/AB/R  23 February 2017  21 March 2017  
US – Anti-Dumping 
Methodologies (China)  WT/DS471/AB/R  11 May 2017  22 May 2017  
US – Tax Incentives  WT/DS487/AB/R  4 September 2017  22 September 2017  
EU – Fatty Alcohols (Indonesia)  WT/DS442/AB/R  5 September 2017  29 September 2017  
Indonesia – Import Licensing 
Regimes  WT/DS477/AB/R  
WT/DS478/AB/R  9 November 2017  22 November 2017  
Table 4 below  shows which WTO agreements were addressed in the Appellate  Body reports 
circulated in 201 7. 
Table 4: WTO  Agreement s addressed in Appellate  Body  reports circulated in 201 7 
Case  Document symbol  WTO  agreements addressed  
Russia – Pigs (EU)  WT/DS475/AB/R  DSU 
SPS Agreement  
US – Anti-Dumping Methodologies 
(China)  WT/DS471/AB/R  Anti-Dumping  Agreement  
DSU 
US – Tax Incentives  WT/DS487/AB/R  SCM Agreement  
DSU 
EU – Fatty Alcohols (Indonesia)  WT/DS442/AB/R  Anti-Dumping  Agreement  
DSU 
Indonesia – Import Licensing 
Regimes  WT/DS477/AB/R  
WT/DS478/AB/R  Agreement on Agriculture  
GATT 1994  
DSU 
The findings and conclusions contained in the Appellate  Body reports circulated in 201 7 are 
summarized below.  
3.1  Appellate  Body  Report, Russian Federation – Measures on the Importation of Live 
Pigs, Pork and Other Pig Products from the European  Union , WT/DS475 /AB/R  
This dispute concerned restrictions imposed by Russia in 2014 on the importation of live pigs, 
pork, and certain pig products from the European  Union , following o utbreaks of African swine 
fever (ASF) in certain regions within the European  Union. 
ASF is a highly contagious disease of pigs, warthogs, European wild boar, and American wild pigs 
caused by the African swine fever virus. The relevant applicable standards relating to ASF have 
been developed by the World Organisation for Animal Health (OIE). In particular, 
recommendations relating to ASF are contained in the OIE's Terrestrial Code, which aims to 
prevent the spread of disease through international trade in animals and their products. As of 
early 2014, ASF was not present in the European  Union , with the exception of the island of 
Sardinia. This situation changed with the outbreak of ASF in Lithuania in January 2014, followed by 
outbreaks in Poland, Latvia, and Estonia . ASF has been present in cert ain areas of Russia 
since 2007.  
Following t he ASF outbreak in Lithuania in January 2014, Russia refused to accept imports of the 
products at issue from any European  Union  (EU) member State, thereby imposing an "EU -wide 
ban". In addition, Russia imposed "country -specific bans" on imports of the prod ucts at issue from WT/AB/28  
 
- 15 - 
 
Estonia, Latvia, Lithuania, and Poland. The EU -wide ban applied to live pigs and other non -treated 
pig products, whereas the country -specific bans cover ed both heat -treated and non -treated pig 
products. The European  Union  challenged both  the EU -wide ban and the country -specific bans, 
alleging that these measures were inconsistent with Articles 2.2, 2.3, 3.1, 3.2, 5.1, 5.2, 5.3, 5.4, 
5.5, 5.6, 5.7, 6.1, 6.2, 7, and 8 and Annexes B and C to the  Agreement  on the Application of 
Sanitary and Phytosanitary Measures ( SPS Agreement ). 
The Panel made a number of preliminary findings with respect to the challenged measures. First, it 
found that the European  Union  had demonstrated the existence of the alleged EU -wide ban as a 
composite measure. The Panel concluded that the EU -wide ban was a measure susceptible to 
challenge under the WTO dispute settlement mechanism. Moreover, the Panel found no limitations 
in the Protocol on the Accession of the Russian Federation t o the WTO (Accession Protocol) to 
assessing the merits of the European  Union 's claims brought in respect of the EU -wide ban. The 
Panel also considered that the four  country -specific bans fell within its terms of reference, even 
though two of them – i.e. th ose on imports from Latvia and Estonia – had been adopted 
subsequent to the European  Union 's panel request.  
With regard to the European  Union 's claims under the SPS  Agreement , the Panel found, first, that 
Russia recognized the concepts of pest - or disease -free areas and areas of low pest or disease 
prevalence in respect of ASF and that, therefore, the measures at issue were not inconsistent with 
Russia's obligation to recognize such concepts under Article  6.2 of the SPS  Agreement . Second, 
the Panel found th at, as of 11 September 2014, the European  Union  had provided the necessary 
evidence to objectively demonstrate to Russia, pursuant to Article  6.3 of the SPS  Agreement , that: 
(i) there were ASF -free areas in the European  Union , both inside and outside of th e four affected 
member States; and (ii) the ASF -free areas in Estonia, Lithuania,  and Poland, as well as the 
ASF-free areas within the European  Union  outside of the four affected member States, were likely 
to remain so. By contrast, the Panel found that, a s of 11 September  2014, the European  Union  
had failed to provide the necessary evidence to objectively demonstrate to Russia, pursuant to 
Article  6.3 of the SPS  Agreement , that the ASF -free areas in Latvia were likely to remain so. Third, 
the Panel found t hat Russia had failed to ensure adaptation of t he measures at issue to the 
SPS characteristics of the ASF -free areas in Estonia, Latvia, Lithuania, and Poland, as well as the 
areas within the European  Union  outside of the four affected member States. There fore, the Panel 
concluded that the measures at issue were inconsistent with Article  6.1 of the SPS  Agreement . 
In addition, the Panel made certain unappealed findings, including: that the measures at issue 
were not based on, and did not conform to, the rele vant international standards, and were thus 
inconsistent with Articles 3.1 and 3.2 of the SPS  Agreement ; that, in the process of considering the 
European  Union 's requests for recognition of ASF -free areas, Russia made excessive requests to 
the European  Union for information, and thereby acted inconsistently with Article  8 and 
Annex  C(1)(c) and C(1)(a) to the SPS  Agreement ; that the requirements of Article  5.7 of the 
SPS Agreement  were not met, and that therefore Russia was not entitled to provisionally adop t the 
measures at issue pursuant to that provision; that Russia did not base its measures on a risk 
assessment, thus breaching Articles 2.2, 5.1, and 5.2 of the SPS  Agreement ; that the measures at 
issue were more restrictive than necessary to achieve Russia's appropriate level of protection, and 
were therefore inconsistent with Articles 2.2 and 5.6 of the SPS  Agreement ; and that the 
measures arbitrarily and unjustifiably discriminated between Members where identical or similar 
conditions prevail, incon sistent with Article  2.3 of the SPS  Agreement . 
On appeal, the participants limited their claims to the Panel's findings concerning the attribution of 
the EU -wide ban to Russia and Article  6 of the SPS  Agreement . In particular, Russia challenged the 
Panel's  findings that the EU -wide ban was attributable to Russia and that there was no limitation, 
in Russia's terms of accession to the WTO, to assessing the merits of the European  Union 's claims 
regarding the EU -wide ban. Russia also claimed that the Panel erre d in its interpretation of 
Article  6.3 of the SPS  Agreement  by finding that the European  Union  had provided the necessary 
evidence to objectively demonstrate to Russia that there were  ASF-free areas in the 
European  Union  inside and outside the four affecte d member States, and that the ASF -free areas 
in Estonia, Lithuania, and Poland, as well as the ASF -free areas outside the four affected member 
States, were likely to remain so. Finally, Russia alleged that the Panel erred in its interpretation of 
the relat ionship between Articles 6.1 and  6.3 of the SPS  Agreement  by finding that Russia had 
failed to adapt the ban on imports of the products at issue from Latvia to the SPS characteristics of 
the ASF -free areas within the Latvian territory, despite having pre viously found that the 
European  Union  had failed to provide the necessary evidence to objectively demonstrate that these WT/AB/28  
 
- 16 - 
 
areas were likely to remain ASF -free. The European  Union , for its part, appealed the Panel's 
findings that Russia recognized the concepts  of pest - or disease -free areas and areas of low pest 
or disease prevalence and that, therefore, the measures at issue were not inconsistent with 
Article  6.2 of the SPS  Agreement . 
3.1.1   The attribution of the EU -wide ban to Russia  
Russia claimed that the Panel e rred in finding that the EU -wide ban  was attributable to Russia. 
In particular, Russia submitted that the content of the veterinary certificates it required for 
importation of the products at issue was not set out in Russia's domestic legislation, but rath er in 
the veterinary certificates bilaterally agreed with the European  Union . Russia further asserted that 
the Panel failed to recognize the sequence of steps envisaged in these certificates, whereby the 
European  Union  would first have to issue a valid cer tificate before Russia may recognize the 
validity of the certificate and allow imports. Finally, Russia argued that the Panel failed to give 
legal effect to the validity of the existing bilateral veterinary certificates as stipulated in Russia's 
terms of a ccession to the WTO.  
The Appellate  Body recalled that, in principle, any act or omission attributable to a WTO Member 
can be a measure of that Member for purposes of dispute settlement proceedings. With this in 
mind, the Appellate  Body noted that, although  the European  Union  had referred, in its panel 
request, to the requirement to provide proper veterinary certificates in order to import the 
products at issue, the European  Union 's challenge with respect to the EU -wide ban was directed at 
Russia's decision,  either through action or omission, to deny the importation of the products at 
issue. The Appellate  Body agreed with  the Panel that it was Russia's action of enforcing the 
requirement of EU -wide freedom from ASF by rejecting consignments of the products at  issue that 
constituted a measure attributable to Russia. For the Appellate  Body, it was immaterial that the 
condition in the bilateral veterinary certificates upon which Russia's decision was based may have 
been developed in conjunction with, or may have involved prior action on the part of, the 
European  Union . Similarly, it was irre levant that the issuance of a certificate by the 
European  Union  preceded Russia's recognition of the validity of that certificate. Indeed, 
irrespective of the events preceding Russia's conduct, Russia undeniably undertook actions to deny 
the importation of  the products at issue, and it was these actions that comprised the measure 
attributable to Russia.  
Next, the Appellate  Body addressed Russia's argument that its terms of accession to the 
WTO precluded a finding that the bilateral veterinary certificates w ere inconsistent with Russia's 
obligations under the SPS  Agreement . The Appellate  Body considered Russia's terms of accession 
as addressing which certificate would remain in effect, until amended or replaced, in trade 
relations between WTO Members and Russ ia. The Appellate  Body drew a distinction between, on 
the one hand, the bilateral veterinary certificates – which required, inter alia , certain factual 
attestations regarding the disease status in the exporting country – and, on the other hand, the 
WTO-consistency of actions taken by the importing country. For the Appellate  Body, the relevant 
issue was not whether the bilateral veterinary certificates between the European  Union  and Russia 
were themselves WTO -consistent, but rather whether a particular SPS m easure – in this case, the 
EU-wide ban, which was taken on the basis of the disease status in the European  Union  – was 
consistent with Russia's obligations under Article  6 of the SPS  Agreement . 
The Appellate  Body further recalled that the main and overarch ing obligation to ensure that 
measures are adapted to regional SPS characteristics, as set out in the first sentence of Article  6.1 
of the SPS  Agreement , is not static, but rather ongoing, thereby requiring that SPS measures be 
adjusted over time so as to establish and maintain their continued suitability in respect of the 
SPS characteristics of the relevant areas. For the Appellate  Body, the fact that a WTO Member has 
adapted its measures to the SPS characteristics of an area at a specific point in time ma y not 
ensure that such adaptation remains adequate when the particular SPS characteristics of that area 
evolve. Therefore, even if one were to maintain that the condition of EU -wide freedom from ASF 
may have been reflective of the SPS situation at the time  the bilateral veterinary certificates were 
originally agreed, this did not rule out the possibility that the SPS characteristics of the relevant 
areas could have changed over time. Thus, irrespective of the commitment in Russia's terms of 
accession to the  WTO regarding which certificate would be operative in the conduct of certain trade 
into Russia from other WTO Members, the Appellate  Body held that Russia remained under an 
ongoing obligation, pursuant to Article  6 of the SPS  Agreement , to adapt its measu res to regional 
SPS characteristics.  WT/AB/28  
 
- 17 - 
 
Based on the foregoing, the Appellate  Body upheld the Panel's findings that the EU -wide ban was 
attributable to Russia and that there was no limitation, in Russia's terms of accession to the WTO, 
on the Panel's assessme nt of the European  Union 's claims in respect of the ban.  
3.1.2   Article  6.3 of the SPS  Agreement  
Russia raised two claims concerning the Panel's interpretation of Article  6.3. First, Russia 
submitted that the Panel erred in not finding that this provision requires consideration of the 
scientific and technical evidence relied upon by the importing Member, as well as the importing 
Member's assessment of the evidence submitted  by the exporting Member, in light of the 
importing Member's appropriate level of protection (ALOP). Second, Russia alleged that the Panel 
erred in not finding that Article  6.3 contemplates a certain period of time for the importing Member 
to evaluate and verify the evidence submitted by the exporting Member.  
The Appellate  Body rejected Russia's first claim. In particular, the Appellate  Body considered that, 
while the evidence relied upon by the importing Member and the importing Member's assessment 
thereof  are essential to the process of adaptation of measures to regional SPS characteristics, they 
are addressed by the second sentences of Articles 6.1 and 6.2, and not by Article  6.3. 
The Appellate  Body noted important interlinkages among the paragraphs of Article 6. The main 
and overarching obligation is set forth in the first sentence of Article  6.1, according to which 
Members shall ensure that their measures are adapted to the SPS  characteristics of the areas from 
which the products at issue originate and to which they are destined. The remainder of Article  6 
elaborates on aspects of that obligat ion and sets forth the respective steps that importing and 
exporting Members must undertake in this connection. The Appellate  Body further noted that the 
second sentence of Article  6.1 requires a Member to evaluate all evidence relevant to "assessing" 
the SPS characteristics of an area. This assessment provides the basis, and therefore constitutes a 
prerequisite, for the adaptation of that Member's measures pursuant to the first sentence of 
Article  6.1. The assessment of the SPS  characteristics of an area w ithin the meaning of the second 
sentence of Article  6.1 may be conducted as part of a Member's risk assessment pursuant to 
Articles  5.1 through 5.3 of the SPS  Agreement . Further, the Appellate  Body held that, pursuant to 
the second sentence of Article  6.2, a Member must determine the pest or disease status of the 
relevant area whenever such a specific SPS characteristic is relevant for the adaptation of a 
measure under the first sentence of Article  6.1. Finally, the Appellate  Body highlighted that 
Article  6.3 addresses the particular situation where an exporting  Member claims that areas within 
its territory are pest - or disease -free or of low pest or disease prevalence.  
Based on these observations, the Appellate  Body found that, when an exporting Member clai ms 
that a certain area within its territory is pest - or disease -free or of low pest or disease prevalence, 
the importing Member must evaluate all the evidence relevant to making a "determination" as to 
the pest or disease status of that area. To this end, the importing Member will have to examine 
and verify the evidence provided by the exporting Member. Also, where relevant, the importing 
Member may analyse data gathered through on -site visits to the area concerned and rely upon any 
other information that i t may have acquired from other sources, including from competent 
international organizations. The importing Member's "determination" is addressed by the second 
sentence of Article  6.2, and forms part of that Member's "assess[ment]" of the SPS characteristi cs 
of that area within the meaning of the second sentence of Article  6.1. By contrast, the importing 
Member's evaluation of the relevant evidence is not covered by Article  6.3. 
In addition, the Appellate  Body explained that a panel's review of an exporting  Member's 
compliance with Article  6.3 is limited to determining whether the evidence provided by that 
Member is of a nature, quantity, and quality sufficient to enable the importing Member ultimately 
to make an objective "determination" as to the pest or d isease status of the relevant areas in light 
of the circumstances of each case. It is not for the panel to determine for itself, based on the 
evidence provided by the exporting Member, whether the relevant areas are, and are likely to 
remain, pest - or dise ase-free or of low pest or disease prevalence. The Appellate  Body considered 
that, despite some ambiguity in the language used in the Panel's reasoning, the Panel properly 
understood its role in reviewing the evidence submitted by the European  Union  to Rus sia pursuant 
to Article  6.3. WT/AB/28  
 
- 18 - 
 
With respect to its second claim of error, Russia alleged that the Panel erred in not finding that 
Article  6.3 contemplates a certain period of time for the importing Member to evaluate and verify 
the evidence submitted by the exporting Member. The Appellate  Body recognized that the process 
whereby the importing Member evaluates all pertinent evidence in respect of the relevant areas 
may require a certain period of time to be carried out. Yet, the Appellate  Body found, contrary to 
Russia's argument, that the importing Member's evaluation of evidence is not addressed by 
Article  6.3, which sets forth disciplines for the exporting  Member, but rather by the second 
sentences of Articles 6.1 and 6.2. Likewise, the period of time taken by the importing Member to 
conduct such evaluation is not covered by Article  6.3 but, rather, it is subject to the second 
sentences of Articles 6.1 and 6.2. In turn, the appropriate length of such period of time is informed 
by the disciplines of Article  8 and Annex  C(1)(a) to the SPS  Agreement . 
Based on the foregoing, the Appellate  Body upheld the Panel's findings that, as of 
11 September  2014, the European  Union  had provided the necessary evidence to objectively 
demonstrate to Russia, pursuant to Article  6.3 of the SPS  Agreement , that: (i) there were ASF -free 
areas in the European  Union , both inside and outside of the four a ffected member States; 
(ii) the ASF-free areas in Estonia, Lithuania, and Poland, as well as the ASF -free areas within the 
European  Union  outside the four affected member States, were likely to remain so.  
3.1.3   The relationship between Articles 6.1 and 6.3 of the SPS  Agreement  
Russia further claimed that the Panel erred in its interpretation of the relationship between Articles 
6.1 and 6.3 of the SPS  Agreement . In particular, according to Russia, the Panel erred in finding 
that an importing Member can be found to have failed to adapt its measures to the 
SPS characteristics of areas within an exporting Member's territory even in a sit uation where the 
exporting Member has failed to provide the necessary evidence in order to objectively demonstrate 
that such areas are, and are likely to remain, pest - or disease -free or of low pest or disease 
prevalence.  
The Appellate  Body recalled its ru ling in India – Agricultural Products  that, when the importing 
Member has received a request from an exporting Member to recognize an area within its territory 
as disease -free, the exporting Member will be able to establish that the importing Member's fail ure 
to recognize and determine that disease -free area, and to adapt its SPS measure accordingly, 
is inconsistent with Articles  6.1 and 6.2 only if that exporting Member can also establish that it 
undertook the steps prescribed in Article  6.3. Thus, the exp orting Member's compliance or 
non-compliance with Article  6.3 will, in many cases, have implications for the importing Member's 
ability to assess the SPS characteristics of areas located within the exporting Member's territory 
and to adapt its measures acc ordingly, as required by Article  6.1. The Appellate  Body also recalled 
its observation in India – Agricultural Products  that, in certain situations, an importing Member 
may be found to have failed to ensure that an SPS measure is adapted to regional condit ions 
within the meaning of Article  6.1 even in the absence of an objective demonstration by an 
exporting Member under Article  6.3. In these cases, the importing Member's violation of Article  6.1 
would not necessarily be contingent on the exporting Member's  compliance with Article  6.3. 
Turning to the Panel's analysis in respect of the ban on imports of the products at issue from 
Latvia, the Appellate  Body recalled that  the dispute arose from the European  Union 's request for 
Russia to recognize areas both out side and inside each of the four affected EU member States as 
ASF-free and as likely to remain so, and to adapt its SPS measures accordingly. As the Panel had 
found that the European  Union  had failed to provide the necessary evidence to demonstrate that 
the ASF -free areas within Latvia were likely to remain so, the Appellate  Body considered that the 
Panel should have evaluated the potential implications of that finding for the question of whether 
Russia had complied with its obligation to adapt its ban on i mports of the products at issue from 
Latvia to the SPS  characteristics of those areas.  
As the Panel did not include any such reasoning in its report, the Appellate  Body found that the 
Panel erred in finding that Russia had failed to adapt the ban on import s of the products at issue 
from Latvia to the SPS characteristics of the ASF -free areas within the Latvian territory. However, 
the Appellate  Body also noted the Panel's unappealed finding that Russia had failed to adapt its 
measure to the SPS characteristi cs of areas within the Russian territory to which the products at 
issue are destined, and considered that finding to constitute a sufficient ground to affirm the 
Panel's conclusion that the ban on imports of the products at issue from Latvia was inconsiste nt 
with Article  6.1 of the SPS  Agreement . WT/AB/28  
 
- 19 - 
 
3.1.4   Article  6.2 of the SPS  Agreement  
The European  Union  alleged that the Panel erred in finding  that Russia recognized the concepts of 
pest- and disease -free areas and areas of low pest or disease pre valence with respe ct to ASF. 
In particular, the European  Union  took issue with the Panel's finding that Article  6.2 requires 
merely an abstract recognition of the concept of regionalization. For the European  Union , 
a concrete measure post -dating the regulatory framework can  in fact contradict the formal 
regulatory framework, effectively deny regionalization, and thus amount to actual non -recognition 
of the concepts of pest - or disease -free areas and areas of low pest or disease prevalence.  
The Appellate  Body recalled that Article  6.2 addresses a specific aspect of the main and 
overarching obligation, set out in the first sentence of Article  6.1, to adapt measures to regional 
SPS characteristics. In particular, the concepts of pest - or disease -free areas and areas of low pes t 
or disease prevalence constitute a subset of the regional SPS  characteristics that are relevant 
under Article  6.1. The Appellate  Body also noted that Article  6.2 does not specify any particular 
manner in which a Member must recognize the concept of regio nalization and that, therefore, 
Members enjoy a degree of latitude in determining how to do so. According to the Appellate  Body, 
the assessment of whether a Member has complied with Article  6.2 may involve scrutiny of the 
specific steps and acts that the M ember has or has not taken in light of the SPS  characteristics of 
the relevant areas, as well as of broader aspects of the importing Member's regulatory regime 
governing SPS matters. Specific instances of recognition or non -recognition of the concepts of 
pest- or disease -free areas and areas of low pest or disease prevalence may be relevant in the 
analysis of whether an importing Member complies with its obligation under Article  6.2. 
Further, the Appellate  Body attached significance to the fact that Article  6.3 envisages that an 
exporting Member may make a claim, addressed to the importing Member, that areas within its 
territory are pest - or disease -free or of low pest or disease prevalence. This suggests that an 
importing Member must provide an effective op portunity for the exporting Member to make such 
claim and thus render operational the concepts of pest - or disease -free areas and areas of low 
pest or disease prevalence. This may be achieved through, individually or jointly: a provision in the 
regulatory framework; the very SPS measure at issue; and a p ractice of recognizing 
pest- or disease -free areas or areas of low pest or disease prevalence. All such elements may be 
relevant to the assessment of a Member's compliance with the obligation to recognize th e relevant 
concepts pursuant to Article  6.2. Different elements may contribute to different degrees to the 
obligation of the Member to recognize the relevant concepts. Accordingly, the Appellate  Body did 
not see Article  6.2 as an obligation to acknowledge the concept of regionalization as an abstract 
idea, but rather as an obligation to render operational the concepts of pest - or disease -free areas 
and areas of low pest or disease prevalence.  
The Appellate  Body thus disagreed with the Panel that the obligat ion in Article  6.2 is separate 
from, and less exigent or less stringent than, that of Article  6.1 and that it requires merely an 
acknowledgement of the concept of regionalization in the form of an abstract idea. The 
Appellate  Body also considered that the Panel erred in finding itself precluded from taking into 
account, in its analysis under Article  6.2, specific instances of recognition or non -recognition of the 
concepts of pest - or disease -free areas and areas of low pest or disease prevalence. Accordingl y, 
the Appellate  Body reversed the Panel's finding that Russia rec ognized the concept of 
pest- or disease -free areas and areas of low pest or disease prevalence in respect of ASF, and that 
therefore the bans on the imports of the products at issue were not  inconsistent with Article  6.2 of 
the SPS  Agreement . 
The Appellate  Body then turned to the question of whether it could complete the legal analysis as 
to whether Russia recognized the concept of regionalization in the first sentence of Article  6.2. The 
Appellate  Body reviewed the elements of Russia's domestic regulations in respect of ASF, and 
considered that none of these instruments provided an effective opportunity for the 
European  Union  to make the claim that areas within its territory were ASF -free, th us failing to 
render operational the concept of regionalization. At the same time, the Appellate  Body noted that, 
because the Panel had found that Russia complies with the obligation in Article  6.2 by 
acknowledging the concept of regionalization as an abst ract idea, and because the Panel 
considered itself to be precluded from taking into account specific instances of recognition of the 
concept of regionalization by Russia, the Panel did not explore whether or to what extent Russia 
otherwise provided an effe ctive opportunity for the European  Union  to make a claim that areas 
within the European  Union  were pest - or disease free, and thus rendered operational the concept WT/AB/28  
 
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of pest - or disease -free areas and areas of low pest or disease prevalence in respect of ASF . Given 
the absence of Panel findings in this respect, the Appellate  Body considered that it was not in a 
position to complete the legal analysis and determine whether or not Russia recognized the 
concepts of pest - or disease -free areas and areas of low pe st or d isease prevalence in respect 
of ASF. 
3.2  Appellate  Body  Report, United  States  – Certain Methodologies and Their Application 
to Anti -Dumping Proceedings Involving China , WT/DS471/AB/R  
This dispute  concerned three sets of measures relating to the United  States  Department of 
Commerce (USDOC)'s conduct of anti -dumping investigations against China: (i)  the use of the 
weighted average -to-transaction (W -T) methodology in dumping margin calculations; 
(ii) the treatment of multiple companies as a non -market-economy -wide entity (NME -wide entity); 
and (iii) the manner in which the USDOC determined anti -dumping duty rates for such an entity as 
well as the level of duty rates.  
Under the first set of measures, China challenged the USDOC's use of the W -T methodo logy in four 
anti-dumping proceedings involving exports from China, consisting of three challenged 
investigations and an administrative review. Article  2.4.2 of the  Agreement  on Implementation of 
Article  VI of the General  Agreement  on Tariffs and Trade 199 4 (Anti-Dumping  Agreement ) enables 
an investigating authority to have recourse to the W -T methodology in instances where 
it: (i) identifies "a pattern of export prices which differ significantly among different purchasers, 
regions or time periods"; and (ii ) provides an explanation as to why such differences cannot be 
taken into account appropriately by the use of a weighted average -to-weighted average (W -W) or 
transaction -to-transaction (T -T) comparison. These two conditions are referred to below as the 
"pattern clause" and the "explanation clause" respectively.  
In the three challenged investigations, the USDOC used the "Nails test" to find a pattern of export 
prices that differ significantly among different purchasers, regions , or time periods. This test 
consisted of two sequential steps and was conducted on the basis of different models, also referred 
to as control numbers (CONNUMs). The first step, called the  "standard deviation test", 
was intended to find a pattern of prices that differ among purchasers, regions , or time periods. 
For the first step, the USDOC would first examine  whether the weighted -average price to the 
alleged target in a particular CONNUM (the alleged target price) was one standard deviation below 
the weighted‒average export price in tha t CONNUM (the CONNUM -specific weighted -average 
price) . After repeating this exercise across all examined CONNUMs, if the volume of sales in 
CONNUMs where the alleged target price was below the CONNUM -specific weighted -average 
export price exceeded 33% of t he total volume of the exporter's sales to the alleged target , 
the USDOC would move on to the second step of the Nails test.  
The second step, called the "price gap test", was intended to establish whether the price 
differences identified were "significant" . Under this step, the USDOC would calculate, on a 
CONNUM -specific basis, the alleged  target price gap by considering the difference between the 
alleged target price  and the next highest weighted -average non -target price. It would also 
calculate, for the s ame CONNUM, the weighted -average non -target price gap by considering the 
weighted average of the gaps between individual non -target weig hted-average prices. 
In calculating this weighted average non -target price gap, the USDOC disregarded non -target 
prices that were lower than the alleged target price. The USDOC would then examine whether the 
alleged target price gap exceeded the weighted -average non -target price gap. After repeating this 
exercise across all examined CONNUMs, if all CONNUMs where the alleged  target price gap was 
wider than the weighted -average non -target price gap exceeded 5% of the total volume of the 
sales to the alleged target, the USDOC would conclude that the pr ice differences identified 
were significant.  
Applying the Nails test in the t hree investigations at issue, the USDOC determined patterns of 
export prices that differed significantly among purchasers in one investigation and among time 
periods in two investigations. The USDOC then evaluated the difference between the dumping 
margins  calculated using the W -W methodology (without zeroing) and those calculated using the 
W-T methodology (with zeroing). The USDOC considered that the difference in margins revealed 
that the W -W methodology concealed differences in price patterns between the  targeted and 
non-targeted groups. This was the explanation provided by the USDOC for the "explanation 
clause" in Article  2.4.2 of the Anti -Dumping  Agreement . On this basis, the USDOC applied WT/AB/28  
 
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the W-T methodology with zeroing to all export transactions of t he Chinese exporters involved in 
the three challenged investigations.  
China claimed several inconsistencies with Article  2.4.2 of the Anti -Dumping  Agreement  with 
regard to the first set of measures. First, China alleged that the USDOC's use of the Nails te st to 
identify a "pattern of prices which differ significantly" contained four quantitative flaws, two 
programing errors, certain qualitative issues, and an impermissible reliance on purchaser or time 
period averages. China also challenged the USDOC's expl anations for using the W -T methodology. 
China further challenged the USDOC's application of the W -T methodology to all export 
transactions, and the use of zeroing. Finally, relying on Article  9.3 of the Anti -Dumping  Agreement  
and Article  VI:2 of the General  Agreement  on Tariffs and Trade 1994 ( GATT 1994 ), China 
contested the USDOC's use of zeroing in the calculation of anti -dumping duties in the relevant 
administrative review.  
In relation to the three challenged investigations, the Panel found that the United  States  acted 
inconsistently with Article  2.4.2 of the Anti -Dumping  Agreement  in two investigations by 
disregarding non -target prices that were lower than the alleged target  price under the price gap 
test (the alleged fourth quantitative flaw with the Nails test), and by failing to consider evidence 
on all non-target prices making up the weighted average non -target price gap (the first 
programming error). The Panel also found  that the United  States  acted inconsistently with 
Article  2.4.2 in the three challenged investigations by applying the W -T methodology to all export 
transactions, and by using zeroing in the dumping margin calculations. In addition, the Panel found 
that th e United  States  acted inconsistently with Article  2.4.2 in the three challenged investigations 
by premising the explanations under the second sentence of this provision on the use of the 
W-T methodology with zeroing, and by failing to provide an explanatio n as to why the T -T 
methodology could not take into account appropriately the significant differences in the relevant 
export prices. The Panel dismissed China's remaining claims under Article  2.4.2, including in 
relation to the first, second, and third all eged quantitative flaws with the Nails test; the alleged 
qualitative issues with the Nails test; and the USDOC's use of purchaser or time period averages to 
establish the existence of a pattern in the three challenged investigations. In relation to the 
relevant administrative review, the Panel found that the United  States  acted inconsistently with 
Article  9.3 of the Anti -Dumping and Article  VI:2 of the GATT  1994 by using zeroing in the dumping 
margin calculations when applying the W -T methodology.  
The secon d set of measures concerned what China termed the "Single Rate Presumption". 
According to China, this consists of a presumption that all exporters from a non -market economy 
(NME) country comprise a single entity under common government control, and the ass ignment, 
by the USDOC, of a single margin of dumping and anti -dumping duty rate to that entity. In order 
to rebut the USDOC's presumption and obtain an individually determined margin of dumping, 
China submitted that an exporter must prove, through a "Separ ate Rate Test", an absence of 
government control, both in law and in fact, over its export activities. China claimed that the 
alleged Single Rate Presumption is inconsistent with Articles  6.10, 9.2, and 9.4 of the 
Anti-Dumping  Agreement  "as such" and as ap plied in various anti -dumping investigations and 
administrative reviews. Examining the evidence on the record, the Panel concluded that the Single 
Rate Presumption is a norm of general and prospective applica tion that can be challenged 
"as such" in WTO dispute settlement. The Panel concluded that, under the Single Rate 
Presumption, the USDOC does not make an objective affirmative determination as to whether one 
or more exporters have a relationship with the State such that they can be considered a single 
entity. Accordingly, the Panel found that the Single Rate Presumption is inconsistent with 
Articles  6.10 and 9.2 of the Anti -Dumping  Agreement  "as such" because it subjects NME exporters 
to a single dumping margin and duty rate, unless the exporter rebuts th e presumption of de jure  
and de facto  governmental control over its export operations.  
In relation to China's "as applied" claims against the second set of measures, the Panel found that 
the evidence on the record shows that the USDOC applied the Single Ra te Presumption in each of 
the challenged determinations. The Panel concluded that this application was inconsistent with 
Articles 6.10 and 9.2 of the Anti -Dumping  Agreement  for the same reasons that it had found this 
measure to be inconsistent "as such" wi th these provisions. In light of its findings under 
Articles 6.10 and 9.2, the Panel exercised judicial economy and made no find ings in relation to 
China's "as  such" and "as applied" claims under Article  9.4 of the Anti -Dumping  Agreement . WT/AB/28  
 
- 22 - 
 
Under the third s et of measures, China challenged certain other aspects of the USDOC's 
methodologies for determining anti -dumping duty rates for NME -wide entities. In particular, China 
challenged what it referred to as the Adverse Facts Available (AFA) Norm. China contende d that, 
where the USDOC considered that an NME -wide entity failed to cooperate to the best of its ability, 
the USDOC would systematically select the facts that were adverse to the interests of that entity, 
rather than the facts that best replaced the missi ng information.  China claimed that the 
USDOC's  practice is inconsistent with Article  6.8 and paragraph  7 of Annex  II to the 
Anti-Dumping  Agreement  "as such" and as applied in certain det erminations. In addition, 
China  claimed that the manner in which the U SDOC determined a single anti -dumping duty rate 
for the country -wide entity and the level of such duty in certain anti -dumping determinations was 
inconsistent with Articles 6.1, 6.8, and 9.4, and paragraphs 1 and 7 of Annex II to the 
Anti-Dumping  Agreement . 
In relation to China's "as such" claims against the third set of measures, the Panel found that the 
evidence on the record did not support China's assertion that the alleged AFA Norm has 
prospective application because it was insufficient to show the deg ree of security and predictability 
typically associated with rules or norms. Having found that China did not demonstrate the 
existence of a rule or norm of general and prospective application, the Panel did not deem it 
necessary to address China's "as such " claims under Article  6.8 and paragraph  7 of Annex II to the 
Anti-Dumping  Agreement . 
In relation to China's "as applied" claims against the third set of measures, the Panel recalled that 
the anti -dumping determinations at issue had already been found to be inconsistent with 
Articles  6.10 and 9.2 of the Anti -Dumping  Agreement  in relation to the Single Rate Presumption. 
The Panel stated that the issue of whether an anti -dumping d uty rate is determined in a 
WTO-consistent manner cannot be assessed without co nsidering the exporter or entity for which it 
is determined. Thus, the Panel exercised judicial economy and made no findings with respect to 
China's "as applied" claims under Articles  6.1, 6.8, and 9.4 and paragraphs  1 and 7 of Annex  II to 
the Anti -Dumping  Agreement . 
On appeal, China challenged the Panel's findings in relation to Article  2.4.2 of the 
Anti-Dumping  Agreement  regarding: (i)  the first  and third alleged qu antitative flaws with the 
Nails test; (ii)  the consideration of certain qualitative factors  when determining whether prices 
differ "significantly"; and (iii)  the USDOC's use of weighted -average export prices to establish the 
existence of a "pattern". In addition, China claimed that the Panel erred in suggesting that an 
investigating authority ma y combine comparison methodologies to establish margins of dumping.  
In relation to the alleged AFA  Norm, China appealed the Panel's finding that China had not 
demonstrated that the alleged AFA  Norm constitutes a rule or norm of general and prospective 
application. In this respect, China made two requests for completion. First, China requested the 
Appellate  Body to complete the analysis and find that the alleged AFA  Norm constitutes a rule or 
norm of general and prospective application that can be challenged  "as such" in WTO dispute 
settlement. Second, China requested the Appellate  Body to complete the legal analysis and find 
that the alleged AFA  Norm is inconsistent with Article  6.8 and paragraph  7 of Annex  II to the 
Anti-Dumping  Agreement . 
3.2.1   Claims regarding the USDOC's application of the Nails test and the W -T 
methodology in the three challenged investigations  
3.2.1.1   The first and third alleged quantitative flaws  
China claimed that the Panel erred in its interpretation and application of the second sentence of 
Article 2.4.2 of the Anti -Dumping  Agreement  in rejecting its claim in respect of two alleged 
quantitative flaws with the Nails test, namely, the first and third alleged quantitative flaws. 
Moreover, China claimed that the Panel failed to apply the proper s tanda rd of review under 
Article  17.6(i) of the Anti -Dumping  Agreement . Consequently, China requested the Appellate  Body 
to reverse the Panel's findings pertaining to the first and third alleged quantitative flaws. China 
further requested the Appellate  Body to complete the legal analysis and find that the USDOC acted 
inconsistently with the pattern clause in the three  challenged investigations, by failing to find, 
through an objective and unbiased evaluation of the facts, "a pattern of export prices which differ 
significantly" within the meaning of the second sentence of Article  2.4.2.  WT/AB/28  
 
- 23 - 
 
Turning to China's claim pertaining to the first alleged quantitative flaw, the Appellate  Body 
recalled that this alleged flaw relates to the standard deviation test applied by the USDOC in the 
three challenged investigations, which aimed to identify whether there were export price 
differences among different purchasers or time periods. Under that test, the USDOC determined, 
for each CONNUM, whether the alleged target price was one s tandard deviation below the 
CONNUM -specific weighted -average price . 
On appeal, China argued that a test involving the concept of standard deviation, such as the Nails 
test, does not allow the investigating authority to draw "valid conclusions" unless the d ata form a 
normal or a single -peaked and symmetrical distribution. According to China, when the data 
distribution is not normal or single -peaked and symmetrical, large quantities of sales (sometimes 
more than 50%) may fall below the one standard deviation threshold. China further argued that 
the Nails test "routinely" discerned large quantities of sales below the one standard deviation 
threshold. For these reasons, China submitted that the United  States  acted inconsistently with the 
pattern clause by applyi ng the Nails test in the three challenged investigations without assessing 
whether the data distribution was normal or at least single -peaked and symmetric.  
Recalling that the first condition set forth in the second sentence of Article  2.4.2 is that 
"the authorities find a pattern of export prices which differ significantly among different 
purchasers, regions or time periods ", the Appellate  Body considered that investigating authorities 
enjoy a margin of discretion regarding the methods or tools they wish to use in establishing the 
existence of a pattern. Irrespective of the method used, however, investigating authorities are 
required to identify  a pattern of export prices within the meaning of the second sentence of 
Article  2.4.2 and consistent with their obligations under the Anti -Dumping  Agreement . 
The Appellate  Body further observed that neither the text of the second sentence of Article  2.4.2 
nor the relevant context suggests how many export prices may fall within a pattern under the 
second sentence of Article  2.4.2 in proportion to the number of export prices outside the pattern.  
Based on the foregoing, the Appellate  Body considered that the fact that a large number of export 
prices may fall below the one standard deviation threshold does not necessarily preclude an 
investigating authority from finding that the export prices to the "target" differ significantly from 
the other export prices and  form a pattern within the meaning of the second sentence of 
Article  2.4.2. Accordingly, the Appellate  Body considered that China had not established that the 
standard deviation test as applied by the USDOC in the three  challenged investigations is only 
capable of identifying prices that differ from other export prices and form a pattern within the 
meaning of the second sentence of Article  2.4.2 where the distribution of the export price data is 
normal, or single -peaked and symmetrical. The Appellate  Body thus found that China had not 
established that the Panel erred in its interpretation or application of the second sentence of 
Article  2.4.2 in rejecting China's claim in respect of the first alleged quantitative flaw with the Nails 
test as applied in the t hree challenged investigations.  
Turning to China's claim regarding the third alleged quantitative flaw, the Appellate  Body recalled 
that this alleged flaw relates to the price gap test applied by the USDOC in the three challenged 
investigations in order to determine whether the differences identified under the standard 
deviation test were significant. Under that test, the USDOC would examine, on a CONNUM -specific 
basis, whether the alleged target price gap was wider than the we ighted -average non -target 
price gap. 
On appeal, China claimed that the Panel was wrong to dismiss its argument that, even assuming 
the existence of a normal distribution, the USDOC's attribution of significance to wider price gaps 
in the tail of the price distribution compared to price gaps closer to the mean merely confirmed an 
inherent feature of such distributions, rather than identifying prices that differ "significantly". China 
had submitted before the Panel that, in terms of statistics, in the case of any "peaked" data 
distribution  with "tails", the gap between any two given prices located at the tail is inherently 
wider than the gaps at the peak. China clarified on appeal that the third alleged quantitative flaw 
arises in situations in which there is a tail to the left of the mean,  irrespective of whether the data 
distribution is normal, or single -peaked and symmetrical. Thus, China argued that the USDOC's 
failure to determine if the data had tails to the left of the mean meant that the conclusions 
reached by the USDOC in every case  were random or arbitrary, and that the USDOC failed to 
identify a "pattern of export prices which differ significantly" because it failed to consider how the 
export prices were distributed.  WT/AB/28  
 
- 24 - 
 
Recalling that in WTO dispute settlement the burden of proof rest s on the party that asserts the 
affirmative of a claim or defence, the Appellate  Body observed that, as per China's submissions, 
the third alleged quantitative flaw arises where the alleged target price gap is based on prices 
located at the left tail of th e data distribution. In light of this and the "as applied" nature of China's 
claims, the Appellate  Body considered that China could not successfully bring a claim of 
inconsistency with the second sentence of Article  2.4.2 unless it showed that the relevant  data 
distributions in each of the three challenged investigations had a left tail and that the alleged 
target price gap was based on prices located at that tail.  
As the Appellate  Body recalled, the Panel considered that the third alleged quantitative flaw  rests 
on the assumption that, in the three challenged investigations, the alleged target price gap was 
based on prices located at the tail of the distribution of the exp ort price data and the 
weighted -average non -target price gap was based on prices locat ed nearer to the peak of that 
distribution. As the Appellate  Body further recalled, the Panel found that China had not shown that 
this assumption is "factually correct insofar as the three challenged investigations are concerned", 
and the Panel rejected Ch ina's claim on this basis. The Appellate  Body considered that this was 
sufficient ground for the Panel to reject China's "as applied" claim in respect of the third alleged 
quantitative flaw with the Nails test. Therefore, the Appellate  Body found that Chin a had not 
established that the Panel erred in its interpretation or application of the second sentence of 
Article  2.4.2 in rejecting China's claim in respect of the third  alleged quantitative flaw with the 
Nails test as applied in the three challenged inve stigations.  
Finally, the Appellate  Body turned to China's claim that the Panel acted inconsistently with 
Article  17.6(i) of the Anti -Dumping  Agreement  in dismissing its claim regarding the first and third 
alleged quantitative flaws with the Nails test. The Appellate  Body observed that China's claim was 
neither about the Panel's determination of whether the USDOC's establishment of the facts was 
proper, n or was it about the Panel's determination of whether the USDOC's evaluation of those 
facts was unbiased and objective. Rather, China appeared merely to take issue with the Panel's 
dismissal of its claim in respect of the first and third alleged quantitativ e flaws, without advancing 
any argument that was separate and different from its arguments under the second sentence of 
Article  2.4.2. The Appellate  Body thus found that China had not established that the Panel failed to 
comply with Article  17.6(i) in rela tion to both the first and third alle ged quantitative flaws with 
the Nails test.  
Having made these findings under Article  2.4.2 and 17.6 of the Anti -Dumping  Agreement , 
the Appellate  Body upheld the Panel's finding that China had not established that the United States  
acted inconsistently with Article  2.4.2 in the three challenged investigations insofar as this finding 
relates to the first and third alleged quantita tive flaws with the Nails test.  
3.2.1.2   Qualitative issues  
China claimed that that the Panel erred in its interpretation and application of the second  sentence 
of Article  2.4.2 of the Anti -Dumping  Agreement  because it failed to recognize that investigating 
authorities are required to consider objective market factors in determining whether relevant 
pricing  differences are "significant".  According to China, although investigating authorities may not 
be required to consider an exporter's subjective motivation or intent behind the observed price 
differences, they are required to consider relevant "objective ma rket factors", such as seasonality 
or market‒driven fluctuations in the costs of production.  
Recalling its findings in US – Washing Machines , the Appellate  Body noted that the term 
"significantly" in the pattern clause has both quantitative and qualitative  dimensions. In that case, 
the Appellate  Body considered that the significance of price differences may be affected by 
"objective market factors", such as the nature of the product under consideration, the industry at 
issue, the market structure, or the in tensity of competition in the markets at issue, depending on 
the case at hand. The Appellate  Body clarified that "objective market factors" are relevant to the 
identification of a pattern within the meaning of Article  2.4.2, insofar as they affect the sign ificance 
of the price differences and not because they provide reasons for the price differences. Thus, the 
words "significantly" and "pattern" in the second  sentence of Article  2.4.2 do not imply an 
examination into the cause of (or reasons for) the diffe rences in prices and the text of this 
provision does not impose an additional requirement to ascertain whether the significant 
differences found to exist are unconnected with "targeted dumping". As the Appellate  Body further WT/AB/28  
 
- 25 - 
 
explained, "objective market fa ctors" may assist an investigating authority in determining whether 
price differences are significant, understood as "import ant, notable or consequential".  
In this dispute, the Appellate  Body considered the Panel's reference to "the circumstances 
surroundi ng an investigation" and to "the nature of the product under investigation and the 
relevant industry" to show that the Panel considered that a qualitative assessment of significance 
under the second sentence of Article  2.4.2 involves the consideration of f actors such as those that 
the Appellate  Body mentioned as examples  of "objective  market factors".  
The Appellate  Body then turned to China's arguments about market -driven fluctuations in the costs 
of production and seasonality, which according to China are relevant qualitative factors to be taken 
into account to assess significance. The Appellate  Body observed that a decline in the costs of 
production is not concerned with the significance of export price differences but rather with the 
very reasons for, or cause of, such differences. The Appellate  Body therefore did not agree with 
China that a decline in production costs should form part of the investigating authority's qualitative 
analysis in assessing the significance of price differences under the pattern  clause.  
Regarding  seasonality, t o the extent that  seasonal variations in the prices of goods explain why 
export prices vary over time periods, the Appellate  Body considered that they relate to the 
"reasons" for the price differences and thus need not be considered und er the pattern clause. 
The Appellate  Body added, however, that to the extent that seasonal price variations – which are 
inherent in the nature of a product, the industry at issue, or the market structure – speak to the 
significance, or lack thereof, of such price differences, they may be relevant  to the qualitative 
assessment under the pattern clause of whether identified differences in export  prices differ 
"significantly".  
Based on the foregoing, the Appellate  Body considered that the Panel did not err in its 
interpretation  of the second sentence  of Article  2.4.2 in finding that investigating authorities are 
not required to examine the reasons for the relevant differences in export prices, or whether those 
differences are unconnected to "targeted dumping", in order to assess whether export prices differ 
"significantly". It also considered that, while the Panel did not explicitly refer to "objective market 
factors", the Panel correctly concluded that an investigating authority should undertake a 
qualitative analysis of the significan ce of export pri ce differences.  
The Appellate  Body therefore upheld the Panel's findings that the USDOC was not required to 
consider the reasons for the differences in export prices forming the relevant pattern in order to 
determine whether those differences were qualitat ively significant within the meaning of the 
pattern clause and that, accordingly, China had not established that the United  States  acted 
inconsistently with Article  2.4.2 in the three challenged investigations because of the alleged 
qualitative issues with  the Nails test.  
3.2.1.3   Determination of a "pattern" based on averages  
China claimed that the Panel erred in its interpretation and application of the second  sentence of 
Article  2.4.2 of the Anti -Dumping  Agreement  to the three challenged investigations because it  
found that this provision allowed the USDOC to determine a patter n on the basis of averages. 
For China, the second sentence of Article  2.4.2 requires that a pattern be determined only on the 
basis of individual export prices. Furthermore, China contended that the USDOC's use of averages 
in the three challenged investigations was inherently biased because it increased the likelihood of 
finding a pattern under Article  2.4.2, and was thus inconsistent with this provision. In this respect, 
China also contended  that the Panel's evaluation of the USDOC's determination was contrary to 
the standard of review under Article  17.6(i) of the Anti -Dumping  Agreement . The United  States  
responded that Article  2.4.2 does not prohibit the use of averages under the pattern cla use, and 
that China's claim under Article  17.6(i) must fail because China's arguments are merely 
consequential on, or made redundant by, its substantive arguments under Article  2.4.2.  
Addressing China's claim under Article  2.4.2, the Appellate  Body observe d that the text of the 
pattern clause does not prescribe a specific method for identifying a "pattern", in particular 
whether individual export transaction prices or average prices must be used. The finding of a 
pattern is not centred on the price relation ship among the different export transactions falling 
within the pattern, i.e. the transactions to the "targeted" purchaser, region, or time period. WT/AB/28  
 
- 26 - 
 
Rather,  the existence of a pattern depends on the price relationship between  the prices for one 
group, i.e.  the "targeted" transactions, and the prices for another group, i.e. the "non -targeted" 
transactions. The Appellate  Body explained that the pattern clause focuses on the price differences 
among  different purchasers, regions , or time periods , not the differe nces within  the prices for the 
"targeted" purchaser, region, or time period.  As a result, an investigating authority may rely on 
prices of individual export transactions or average prices in order to find a pattern, provided that 
the pattern meets the requ irements stipulated in the pattern clause. The Appellate  Body thus 
agreed with the Panel's conclusion that the pattern clause provides investigating authorities with 
discretion in relation to whether a pattern determination is to be based on individual exp ort 
transaction prices or average prices.  
The Appellate  Body added that, where all the relevant individual export transaction prices are 
averaged using weighted -average prices by purchasers, regions, or time periods, the differences 
within the prices for a given purchaser, region, or time period are accounted for in those averages. 
A pattern determined on the basis of averages is still based on a collection of individual export 
prices that form a regular and intelligible form or sequence of export prices that differ significantly, 
in the sense that those prices pertain to one or more pur chasers, regions, or time periods, and are 
significantly lower than the prices for the remaining purchasers, regions, or time per iods. 
The Appellate  Body thus agreed with the Panel that, when a pattern is determined through the use 
of averages, the pattern  itself will consist of individual export transactions.  
The Appellate  Body disagreed with China that the reference to "prices of individual export 
transactions" in the first part of the second sentence of Article  2.4.2 directly informs or limits how 
a patt ern is to be identified in the pattern clause. The Appellate  Body observed that this phrase 
appears only in the first part of the second sentence, which provides that "[a]  normal value 
established on a weighted average basis may be compared to prices of individual export 
transactions ". For the Appellate  Body, the second sentence of Article  2.4.2 has two  distinct parts 
serving different purposes: (i) the first part clarifies that a normal value may be compared to 
prices of "individual export transactions" in  order to establish the existence of margins of dumping; 
and (ii) the second part of the second sentence deals with the conditions that have to be met for 
an investigating authority to have r ecourse to the W -T methodology.  
China further alleged that the US DOC's use of averages in the three challenged investigations was 
inherently biased because it systematically drew the one -standard -deviation threshold closer to 
the mean as compared to where the threshold would have been had the USDOC calculated it on 
the basis of individual export transaction prices. China contended that, as a consequence of this 
bias, there was an increased likelihood that export sales to the "targ et" fell below the 
one-standard -deviation threshold. In turn, this increased the likelihood that the USDOC would find, 
in the three challenged investigations, the existence of a patte rn under the second sentence 
of Article  2.4.2 . 
The Appellate  Body agreed with the Panel that China's arguments were directly related to China's 
view that the USDOC s hould have calculated the standard deviation "on an examination of 
individual export prices, as mandated by the treaty". Recalling the discretion afforded in 
Article  2.4.2 to investigating authorities, the Appellate  Body agreed with the Panel's finding tha t 
China had not established that the United  States  acted inconsistently with Article  2.4.2 in the three 
challenged investigations by establishing the relevant pattern on the basis of averages as opposed 
to individual export transaction prices. The Appellat e Body also noted the Panel's statement that, 
even if it were true that the numerical value of the standard deviation would have been higher if 
the USDOC had relied on individual export transactions in the three challenged investigations, the 
Panel could n ot "find that the USDOC's  determination  was biased on that basis". 
The Appellate  Body agreed with the Panel statement to the extent that the Panel considered that 
China had not demonstrated that the USDOC's use of averages in the three challenged 
investiga tions was biased.  
Finally, the Appellate  Body turned to China's claim under Article  17.6(i) of the 
Anti-Dumping  Agreement . China claimed that the Panel failed to comply with Article  17.6(i) 
because the Panel endorsed a WTO -inconsistent test that biased the  outcome towards 
systematically increasing the likelihood of finding a pattern under Article  2.4.2. The Appellate  Body 
considered that China did not identify, much less challenge, a specific instance of the Panel's 
assessment of the facts. Rather, China mo stly recast the arguments that it made before the Panel 
under Article  2.4.2. In addition, China did not advance arguments on appeal that were separate WT/AB/28  
 
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and different from its arguments concerning the alleged error in the Panel's interpretation of 
Article  2.4.2. Thus, the Appellate  Body considered that China had not demonstrated that the Panel 
failed to comply with Article  17.6(i).  
Based on the foregoing, the Appellate  Body found that the Panel did not err in its interpretation 
and application of the second s entence of Article  2.4.2 to the three challenged investigations when 
examining the USDOC's use of purchaser or time period averages under the Nails test. 
Furthermore, it found that China had not established that the Panel had failed to comply with 
Article  17.6(i). Consequently, the Appellate  Body upheld the Panel's finding that China had not 
established that the United  States  acted inconsistently with the second sentence of Article  2.4.2 in 
the three challenged investigations by determining the existence of  a "pattern" on the basis of 
average prices, instead of individual export transaction prices.  
3.2.1.4   Whether comparison methodologies may be combined to establish dumping 
margins  
In reaching its conclusion that the United  States  acted inconsistently with the seco nd sentence of 
Article  2.4.2 of the Anti -Dumping  Agreement  by using zeroing under the W -T methodology in the 
three challenged investigations – a finding that was not appealed – the Panel added that it was not 
suggesting that the options under Article  2.4.2 are limited. In particular, the Panel had stated that 
where an investigating authority applies the W -T methodology to the export transactions falling 
within the pattern and one of the two normal methodologies to the export transactions falling 
outside the  pattern, and the results of the calculations for the export transactions falling outside 
the pattern are negative, it may be necessary, in order to give full meaning to the second sentence 
of Article  2.4.2, not to let that negative result offset the posit ive result (i.e. dumping) found within 
the pattern.  
On appeal, China claimed that this interpretation is erroneous because it is premised on the 
understanding that an investigating authority may apply the W -T methodology to "pattern 
transactions" and the W -W or T -T methodology to "non -pattern transactions", and then combine 
the results of these comparison methodologies to establish dumping margins. China thus 
requested the Appellate  Body to declare this statement by the P anel to be moot and of no 
legal effect. 
The Appellate  Body recalled its explanation in US – Washing Machines  that, in keeping with its 
function of allowing an investigating authority to effectively address "targeted dumping", 
the second sentence of Article  2.4.2 allows an investigating autho rity to establish margins of 
dumping by applying the W -T comparison methodology only to "pattern transactions", to the 
exclusion of "non -pattern transactions". This is to avoid that the "targeted dumping" identified 
from the consideration of "pattern trans actions" be "re -masked", if negative comparison results 
arising from "non -pattern transactions" were considered.  
In US – Washing Machines , the Appellate  Body also found that the second sentence of Article  2.4.2 
does not permit an investigating authority to  conduct se parate comparisons for 
"pattern  transactions" under the W -T methodology and for "non -pattern transactions" under the 
W-W or T -T methodology, and exclude from its consideration the result of the latter if it yields an 
overall negative comparison result, or aggregate it with the W -T results for the 
"pattern  transactions " if it yields an overall positive comparison result.35 In that case, 
the Appellate  Body thus concluded that, while the second sentence allows an investigating 
authority to establish the existence of margins of dumping by comparing a "normal value 
established on a weighted average basis" with "pattern transactions" only, Article  2.4.2 does not 
permit the combining of comparison methodologies for the purposes of establishing dumping and  
margins of dumping in accordance with the second sentence.  
As in US – Washing Machines , the Appellate  Body noted that the second sentence of Article  2.4.2 
allows an investigating authority to establish margins of dumping by applying the W-T 
                                                
35 In that case, the Appellate  Body was faced with the USDOC's practice of applying the 
W-T methodology to certain transactions and the W -W methodology to the remaining transactions and 
disregarding or setting to zero the intermediate comparison result arising from the W -W methodology if it were 
negative.  WT/AB/28  
 
- 28 - 
 
methodology only to "pattern transactions" and that Article  2.4.2 does not permit the combining of 
comparison methodologies. The Appellate  Body thus declared moot the Panel's statements at issue 
to the extent that they were premised on the understanding th at Article  2.4.2 permits the 
combining of comparison methodologies (e.g. W -T to pattern transactions and W -W to non -pattern 
transactions) to establish dumping margins.  
3.2.2   Claims regarding the AFA Norm  
3.2.2.1   Rules or norms of general and prospective application  
Before the Panel, China challenged the WTO consistency of the alleged AFA  Norm "as such". China 
contended that the alleged AFA  Norm was an unwritten rule or norm of general and prospective 
application. The Panel found that China could not have challenged this alleged measure "as such" 
because China did not demonstrate the AFA Norm had general and prospective application. 
On appeal, China claimed that the Panel erred in its articulation and application of the legal 
standard for establishing that a rule or norm h as "prospective application". According to China, the 
Panel erroneously required that the future application of a rule or norm be demonstrated with 
"certainty" for it to have "prospective application".  
The Appellate  Body recalled that, in principle, any ac t or omission attributable to a WTO Member 
can be a measure for the purposes of dispute settlement proceedings. Therefore, a broad range of 
measures can be challenged in WTO dispute settlement. The Appellate  Body also recalled that the 
distinction between challenges "as such" and challenges "as applied" neither governs the definition 
of a measure for purposes of WTO dispute settlement, nor defines exhaustively the types of 
measures susceptible to challenge, and that the specific measure at issue in a disput e, whether it 
is written or unwritten, and how it is described, characterized, and challenged by a complainant, 
will inform the kind of evidence a complainant is required to submit and the elements that it must 
prove in order to establish the existence of the challenged measure. A challenge may be raised 
with respect to measures that are neither individual instances of application of a measure, nor 
rules or norms of general and prospective application, but share c ertain attributes with both. 
In this sense, "measures", within the meaning of Articles 3.3., 4.4 , and 6.2 of the DSU, need not 
be compartmentalized into categories in order to be challengeable in WTO dispute settlement.  
Noting that this appeal concerned an "as such" challenge to an unwritten rule or  norm of general 
and prospective application, the Appellate  Body recalled that, when making this type of challenge, 
a complainant must establish (i) that the rule or norm is attributable to the responding Member; 
(ii) its precise content; and (iii) that it  has general and prospective application. Observing that the 
participants had not appealed the Panel findings concerning the precise content of the unwritten 
alleged AFA  Norm and that it is attributable to the United  States , the Appellate  Body focused its 
analysis on the elements of "general"  and "prospective application".  
In relation to "general application", the Appellate  Body found that a  rule or norm has 
"general  application" to the extent that it affects an unidentified n umber of economic operators. 
In relation to "prospective application", the Appellate  Body explained that a rule or norm has 
"prospective application" to the extent that it applies in the future. In this respect, the 
Appellate  Body did not consider that a complainant is required to show with "certainty" that  a 
measure will apply in future  situations.  
According to the Appellate  Body, any measure, including rules or norms, written or unwritten, may 
be modified or withdrawn in the future. The Appellate  Body considered that this mere possibil ity 
does not remove the prospective nature of that measure. Where prospective application is not 
sufficiently clear from the constitutive elements of the rule or norm, it may be demonstrated 
through a number of factors including the existence of an underly ing policy, which is implemented 
by the rule or norm. In addition, the more frequent, consistent, and extended the repetition of 
conduct is, the more probative such conduct will be in revealing, together with other factors, such 
an underlying policy. In th is respect, relevant evidence may include proof of the systematic 
application of the challenged rule or norm. Where ascertainable, the design, architecture, and 
structure of the rule or norm may also be relevant in identifying the underlying policy and 
prospective nature of that rule or norm. In addition, the extent to which a particular rule or norm 
provides administrative guidance for future conduct and the expectations it creates among 
economic operators that it will be applied in the future are also rel evant in establishing the WT/AB/28  
 
- 29 - 
 
prospective nature of that rule or norm. The Appellate  Body emphasized that the examination of 
whether a rule or norm has general and prospective application may vary from case to case and 
did not exclude that additional factors m ay be relevant in this assessment depending on the 
particular facts and specific circumstances of the case at hand.  
The Appellate  Body found that the Panel erred in finding that China had not demonstrated that the 
alleged AFA Norm is a norm of general and prospective application. The Appellate  Body noted that 
the Panel considered that "the future application of a measure must achieve a certain degree of 
security and predictability typically associated with rules or norms." The Panel found that such 
"certain ty" of the prospective or future application of the alleged AFA Norm was not supported by 
record evidence. The Appellate  Body considered that, by requiring "certainty" of future application, 
the Panel's  examination of the prospective nature of the alleged AFA Norm was not consistent with 
the legal standard for establishing the prospective app lication of a rule or norm. 
The Appellate  Body therefore reversed the Panel's findings that China had not demonstrated that 
the alleged AFA Norm is a norm of general an d prospective application.  
3.2.2.2   China's request for completion – general and prospective application  
China requested the Appellate  Body to complete the analysis and find that the alleged AFA  Norm 
has general and prospective application. China argued that the alleged AFA  Norm has general 
application as it does not relate to specific economic operators, but rather to the general class of 
economic operators that the USDOC could potentially include within an NME -wide entity. China 
further contended that applying the correct legal standard to the relevant factual findings of the 
Panel demonstrates that the alleged AFA Norm has prospective appli cation. The United  States  
responded that the Appellate  Body should not complete the analysis, given the lack of relevant 
findings by the Panel and uncontested facts on the record.  
With respect to the "general application" of the alleged AFA Norm, the Appel late Body noted the 
unappealed Panel finding concerning the precise content of the alleged AFA  Norm suggests that 
this norm is a measure of general application because it affects an unidentified number of 
economic operators. The Appellate  Body also noted the connection between the alleged AFA Norm 
and the Single Rate Presumption. The Panel found that the Single Rate Presumption has general 
application because it applies to all "NME exporters" involved in original investigations and 
administrati ve reviews conducted by the United  States . The Appellate  Body noted that the 
application of the Single Rate Presumption may result in the establishment of NME -wide entities, 
which, in turn, will be subject to the alleged AFA  Norm where the USDOC finds that  they have 
failed to cooperate to the best of their ability. Thus, the Appellate  Body considered that the Panel's 
finding concerning the Single Rate Presumption supports the conclusion that the alleged AFA  Norm 
has general application. Finally, the Appella te Body considered that the 73 anti -dumping 
determinations on the record also support the conclusion that the alleged AFA Norm has general 
application, since they cover a wide range of products and companies. In light of the above, the 
Appellate  Body concluded that the alleged AFA  Norm has general application  because it affects an 
unidentified number of economic operators.  
With respect to the "prospective application" of the alleged AFA Norm, the Appellate  Body noted 
the Panel's statement that, in the USDOC 's view, selecting the highest margin from any segment 
of the proceedings in cases of non -cooperation reflects a common sense inference that the highest 
prior margin is the most probative evidence of current margins, because, if it were not so, the 
importe r, knowing of the rule, would have produced current information showing the margin to be 
less. The Appellate  Body also found relevant the Panel's observation that, in several 
determinations, the USDOC referred to its "practice" of ensuring that the margin is sufficiently 
adverse as to effectuate the purpose of the facts available role to induce respondents to provide 
the USDOC with complete and accurate information in a timely manner. The Appellate  Body 
considered that these statements mean that the alleged  AFA Norm implements, or is  part of, an 
underlying policy.  
The Appellate  Body also noted the Panel's observation of the USDOC's descriptions in relation to 
the alleged AFA Norm of a "practice", "standard practice", or "normal practice", which has 
consisten tly been upheld by the United  States  Court of International Trade and the United  States  
Court of Appeals for the Federal Circuit. The Appellate  Body agreed with the Panel that the 
USDOC's conduct amounted to more than mere repetition of conduct and that th e invariable 
application of the alleged AFA  Norm during a period of over 12  years might create expectations for WT/AB/28  
 
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economic operators that the norm will continue to apply in the future, and that prior practice may 
provide the USDOC with administrative guidanc e for future actions. Thus, the Appellate  Body 
considered that the Panel made certain findings and statements that lead to the conclusion that 
the alleged AFA  Norm has prospective  application, namely, that the alleged AFA  Norm was 
consistently and systemat ically applied by the USDOC over an extended period of time, and that it 
implements an underlying policy, provides administrative guidance, and creates expectations 
among economic operators. Thus, the Appellate  Body concluded that the alleged AFA  Norm has 
"prospective application" . 
The Appellate  Body recalled that the Panel findings concerning the precise content of the alleged 
AFA Norm and that this alleged measure is attributable to the United  States  had not been 
appealed. The Appellate  Body also noted th at it had found that the alleged AFA  Norm has both 
general and prospective application. On this basis, the Appellate  Body found  that the alleged 
AFA Norm is a rule or norm of general and prospective applica tion that can be challenged 
"as such" in WTO dispu te settlement.  
3.2.2.3   China's request for completion – Article  6.8 and paragraph  7 of Annex  II to the 
Anti-Dumping  Agreement  
Having found that the AFA  Norm is a rule or norm of general and prospective application, the 
Appellate  Body turned to China's request for the Appellate  Body to complete the analysis and find 
that the AFA  Norm is inconsistent with Article  6.8 and paragraph  7 of Annex  II to the 
Anti-Dumping  Agreement . China argued that the AFA  Norm prompts the USDOC to draw adverse 
inferences and select advers e facts as a response to a single factor – i.e. non -cooperation – 
without establishing that such inferences can reasonably be drawn and that such facts are the 
"best" information available in the particular circumstances. The United  States  responded that t he 
Appellate  Body should dismiss China's request for completion because China's claims under 
Article  6.8 and Annex  II are outside the Panel's terms of reference, the Appellate  Body is not in a 
position to complete the analysis, China's claims are without m erit, and findings on appeal would 
not contribute to a positive resolution of the dispute.  
In relation to the Panel's terms of reference, the United  States  submitted that China's panel 
request does not identify the precise obligations alleged to have been breached by the 
United  States ; rather, it refers to an entire portion of the Anti -Dumping  Agreement  – namely, 
Annex  II – that contains multiple obligations. The Appellate  Body recalled that merely listing 
articles in the panel request may fall short of the  standard in Article  6.2 of the DSU where the 
listed articles establish multiple distinct obligations. In this respect, the Appellate  Body has 
examined the narrative of a panel request when considering whether the panel request as a whole 
sufficiently iden tifies the particular obligations that form the le gal basis of the complaint. 
The Appellate  Body noted that China's panel request alleges that "the United  States  fails to use the 
best information available and special circumspection when basing its findings on information from 
secondary sources." The Appellate  Body observed that paragraph  7 of Annex  II to the 
Anti-Dumping  Agreement  contains similar wording, and th at it is the only paragraph in Annex  II 
that concerns an investigating authority's obligation to exercise special circumspection when 
basing findings on information from a secondary source. The Appellate  Body thus found that the 
reference by China to Annex  II, together with the narrative included in its panel request, provides 
"a brief summary of the legal basis of the complaint sufficient to present the problem clearly" that 
comports with the standard set forth in Article  6.2 of the DSU.  
In relation to Chi na's claim under Article  6.8 and paragraph  7 of Annex  II to the 
Anti-Dumping  Agreement , the Appellate  Body recalled that, when relying on facts available, an 
investigating authority must use those facts available that reasonably replace the necessary 
information that an interested party failed to provide with a view to arriving at an accurate 
determination. Ascertaining which "facts available" reasonably  replace the missing 
"necessary  information" calls for a process of reasoning and evaluation of all subst antiated facts on 
the record. In such a process, no substantiated facts on the record can be a priori  excluded from 
consideration. In addition, an investigating authority may be called upon to draw inferences from 
the evidence before it in order to reach a  conclusion. The manner or procedural circumstances in 
which information is missing can be relevant to an investigating authority's use of "facts available". 
Determinations under Article  6.8, however, must be based on "facts" that reasonably replace the 
missing "necessary information" in order to arrive at an accurate determination, and thus cannot 
be made on the basis of procedural circumstances alone.  WT/AB/28  
 
- 31 - 
 
The Appellate  Body noted that the Panel made no findings on whether the AFA  Norm is 
inconsistent with Article 6.8 and paragraph  7 of Annex  II. In particular, the Panel did not explore 
the process of reasoning and evaluation undertaken by the USDOC prior to selecting 
"facts  available" to replace missing information. The Appellate  Body also observed that China' s and 
the United  States ' arguments on appeal mostly concern whether the USDOC relied on 
non-cooperation as the only relevant procedural circumstance when resorting to "facts available". 
China and the United  States  did not sufficiently engage on the extent to which, under the 
AFA Norm, the USDOC selects facts that reasonably replace the missing "necessary information" in 
order to arrive at an accurate determination. The Appellate  Body considered that, for an evaluation 
of the conformity of the AFA  Norm with Article  6.8 and paragraph  7 of Annex  II, it would need to 
examine the process of reasoning and evaluation of all substantiated facts on the record adopted 
by the USDOC for its selection of which "facts available" reasonably replace the missing "necessary 
information". Given the absence of Panel findings and sufficient undisputed facts on the Panel 
record, as well as the arguments made by the participants on appeal, the Appellate  Body 
considered that it was unable to evaluate the process that the USDOC under takes for its selection 
of which "facts available" reasonably replace the missing "necessary information" with a view to 
arriving at an accurate determination. For the reasons above, the Appellate  Body declined China's 
request for it to complete the analys is in relation to whether the AFA  Norm is inconsistent with 
Article  6.8 and paragraph  7 of Annex  II. 
3.3  Appellate  Body  Report, United  States  – Conditional Tax Incentives for Large Civil 
Aircraft , WT/DS4 87/AB/R  
This dispute concerns seven measures consisting of tax -related provisions for civil aircraft provided 
by the state of Washington in the United  States , as amended by Engrossed Substitute Senate 
Bill 5952 (ESSB  5952). ESSB  5952, which is codified in the Revised Code of Washington  (RCW), 
amends and extends  certain tax measures established in 2003, which were measures at issue in 
the dispute US – Large Civil Aircraft (2nd complaint) . 
Before the Panel, the European  Union  challenged the following seven aerospace tax measures: 
(i) a reduced business and occupat ion (B&O) tax rate for the manufacture and sale of commercial 
airplanes; (ii) a credit for the B&O tax for pre -production development of commercial airplanes and 
components; (iii) a credit for the B&O tax for property taxes on commercial airplane 
manufactu ring facilities; (iv) an exemption from sales and use taxes for certain computer 
hardware, software, and peripherals; (v) an exemption from sales and use taxes for certain 
construction services and materials; (vi) an exemption from leasehold excise taxes o n port district 
facilities used to manufacture superefficient airplanes; and (vii) an exemption from property taxes 
for the personal property of port district lessees used to manufacture superefficient airplanes.  
The European  Union  identified two condition s set out in ESSB  5952 – referred to as the First and 
Second Siting Provisions – that govern the availability of the abovementioned aerospace tax 
measures. These conditions relate to a decision on the initial siting of a significant commercial 
airplane man ufacturing program in the state of Washington (defined as an obligation to commence 
manufacture of both a commercial airplane and fuselages and wings in Washington ), as well as to 
the future siting outside Washington of any final assembly or wing assembly of any version or 
variant of a commercial airplane that is the basis of a siting of a significant commercial airplane 
manufacturing program. Each of the aerospace tax measures is extended, and certain others are 
also amended, by ESSB  5952, which, according  to the First Siting Provision, takes effect 
contingent upon the siting of a significant commercial airplane manufacturing program in 
Washington. Moreover, if no such siting occurred by the spe cified date (30  June 2017), 
the possibility for the amendment a nd extension of the measures to take effect would lapse. 
Before the Panel, both parties agreed that the First Siting Provision had been fulfilled with respect 
to Boeing's 777X program and, as a result, the measures are in effect. The Second Siting Provisio n 
concerns the continued availability of the B&O aerospace tax rate for the version or variant of the 
commercial airplane that is the basis of the First Siting Provision. The Second Siting Provision 
triggers the loss of that subsidy if any final assembly o r wing assembly of that commercial airplane 
is located outside of Washington.  
The European  Union  requested the Panel to find that each of the aerospace tax measures 
constitutes de jure  and/or de facto a subsidy that is prohibited, pursuant to Articles  3.1(b) and  3.2 
of the  Agreement  on Subsidies and Countervailing Measures ( SCM Agreement ), because it is 
contingent on the use of domestic over imported goods. The European  Union  further requested, WT/AB/28  
 
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pursuant to Article  4.7 of the SCM  Agreement , that the Panel re commend that the United  States  
withdr aw the subsidies without delay.  
The Panel found that each of the aerospace tax measures at issue constitutes a subsidy within the 
meaning of Article  1 of the SCM  Agreement . In addressing the European  Union 's de jure  claims, 
the Panel considered the First and the Second Siting Provisions separately and together. The Panel 
concluded that the European  Union  had not demonstrated that, on its own, the First Siting 
Provision makes the challenged aerospace tax measures de jure contingent upon the use of 
domestic over imported goods. The Panel also concluded that the European  Union  had not 
demonstrated that the Second Siting Provision, on its own, makes the challenged B&O aerospace 
tax rate de jure contingent upon the use of dome stic instead of imported goods. The Panel further 
found that the European  Union  had not demonstrated that, acting together, these provisions make 
the challenged aerospace tax measures de jure contingent upon the use of domestic over imported 
goods. With re spect to the European  Union 's de facto  challenge, the Panel concluded that the 
siting provisions in ESSB  5952, and in particular the prospective modalities of operation of the 
Department of Revenue's discretion under the Second Siting Provision, make the B &O aerospace 
tax rate for the manufacturing or sale of commercial airplanes under the 777X program de facto 
contingent upon the use of domestic over imported goods within the meaning of Article  3.1(b) of 
the SCM  Agreement . 
Pursuant to Article  4.7 of the SCM Agreement , and taking into account the nature of the prohibited 
subsidy found in this dispute, the Panel recommended that the United  States  withdraw the subsidy  
without delay and within 90  days.  
3.3.1   Interpretation of Article  3.1(b) of the SCM  Agreement  
On appeal, the United  States  claimed that the Panel erred in finding that the B&O aerospace tax 
rate for the 777X program is contingent on the use of domestic over imported wings for the 777X. 
In particular, according to the United  States , the Panel erroneous ly interpreted and applied 
Article  3.1(b) of the SCM  Agreement  as if it prohibits subsidies conditional on the domestic s iting 
of production activities.  
The Appellate  Body observed that the SCM  Agreement  distinguishes between two categories of 
subsidies: prohibited  subsidies (Part II of the  Agreement ) and actionable subsidies (Part  III of 
the Agreement ), and that only subsidies contingent upon export performance within the meaning 
of Article  3.1(a) or contingent upon the use of domestic over imported goods within the meaning 
of Article  3.1(b) are prohibited per se under Article  3 of the SCM  Agreement . The Appellate  Body 
recalled its earlier findings that the legal standard for establishing the existence of "contingency" 
under Article  3.1(b) is the same as un der Article  3.1(a). Specifically, a subsidy would be prohibited 
under Article  3.1(b) if it is "conditional" or "dependent for its existence on" the use of domestic 
over imported goods, and therefore,  if the use of those goods were a condition for receiving  
the subsidy.  
Concerning the meaning  of the terms in Article  3.1(b), the Appellate  Body observed that the term 
"use" refers to the action of using or employing something, and that it may, depending on the 
particular circumstances, refer to consuming a good in the process of manufacturing, but may also 
refer to, for instance, incorporating a component into a separate good, or serving as a tool in the 
production of a good. The Appellate  Body further considered that the term "goods" can be read as 
a synonym for "products", may refer to any type of good that may be used by the subsidy 
recipient, and concerns goods that should be at least potentially tradable. Moreover, for the 
Appellate  Body, the interpretation of the terms "domestic" and "imported" can be informed by 
Article  III:4 of the GATT  1994. Thus, as a general matter, "domestic" goods can be understood as 
goods originating within the relevant Member's territory and "imported" goods as goods that cross 
the border into that Member's territory. Finally, the Appellate  Body observed that the term "over" 
refers to the use of domestic goods in pre ference to, or instead of, imported goods.  
The Appellate  Body then recalled that the term "contingent" covers contingency both in law and in 
fact and that the legal standard is the same for de jure and de facto contingency. While the 
existence of de jure contingency is demonstrated on the basis of the very words of the relevant 
measure granting the subsidy or by necessary implication therefrom, the existence of de facto 
contingency must be inferred from the total configuration of the facts constituting and surrounding WT/AB/28  
 
- 33 - 
 
the granting of the subsidy, none of which on its own is likely to be decisive in any given case. The 
Appellate  Body noted that relevant factors in determining de facto contingency include the design 
and structure of the measure granting the su bsidy, the modalities of operation set out in such a 
measure, and  the relevant factual circumstances surrounding the granting of the subsidy, that 
provide the context for understanding the measure's design, structure, and modalities of 
operation. The Appel late Body understood the analysis of de jure and de facto contingency as a 
continuum, and observed that a panel should conduct a holistic assessment of all relevant 
elements and evidence on the record, and need not compartmentalize de jure and de facto 
analyses, in order to reach an overall conclusion as to whether a subsidy is contingent upon the 
use of domestic over imported goods. According to the Appellate  Body, in each case, an 
assessment of whether a subsidy is contingent within the meaning of Article  3.1(b) requires a 
thorough analysis of whether the conditional relationship between the granting of the subsidy and 
the use of domestic over imported goods is objectively observable on the basis of a careful and 
rigorous scrutiny of all the relevant evide nce, especially where the alleged contingency is not 
clearly expressed in the language used in  the relevant legal instrument.  
The Appellate  Body highlighted that, by its terms, Article  3.1(b) does not prohibit the subsidization 
of domestic "production" per se but rather the granting of subsidie s contingent upon the "use", 
by the subsidy recipient, of domestic over imported goods, and reasoned that subsidies that relate 
to domestic production are not, for that reason alone, prohibited under Article  3 of the 
SCM Agreement . The Appellate  Body noted in this respect that such subsidies can ordinarily be 
expected to increase the supply of the subsidized domestic goods in the relevant market, thereby 
increasing the use of these goods downstream and adversely affect ing imports, without necessarily 
requiring the use of domestic over imported goods as a conditio n for granting the subsidy. 
The Appellate  Body further observed that Article  III:8(b) of the GATT 1994 comports with this 
understanding, insofar as it makes cle ar that the provision of subsidies to domestic producers only, 
and not to foreign ones, does not in itself constitute a breach of Article  III. However , the 
Appellate  Body stressed that, even if the granting of a subsidy is exempt from the GATT  national 
treatment obligation by virtue of it being paid exclusively to domestic producers, it may still be 
found to be contingent upon the use by those producers of domestic over imported goods under 
Article  3.1(b) of the SCM  Agreement . 
Additionally, the Appellate  Body recalled its finding that de facto contingency under Article  3.1(a) 
of the SCM  Agreement , and in particular whether a subsidy is "in fact tied to … anticipated 
exportation", can be determined by assessing whether "the granting of the subsidy  [is] geared to 
induce the promotion of future export performance by the recipient" and "provides an incentive to 
skew anticipated sales towards exports". The Appellate  Body took the view that this test would not 
answer the question of whether the measure requires the recipient to use domestic over imported 
goods as a condi tion for receiving the subsidy.  
The Appellate  Body concluded that the relevant question in determining the existence of 
contingency under Article  3.1(b) is not whether the eligibility req uirements under a subsidy may 
result  in the use of more domestic and fewer imported goods, but whether a condition  requiring 
the use of domestic over imported goods can be discerned from the terms of the measure itself, 
or inferred  from its design, structu re, modalities of operation, and the relevant factual 
circumstances constituting and surrounding the granting of the subsidy that provide context for 
understanding the operation of these factors.  
3.3.2   Whether the Panel erred in  its interpretation of Article  3.1(b) of the 
SCM Agreement  
The European  Union  claimed that, in its de jure assessment of the First and Second Siting 
Provisions, the Panel erroneously interpreted Article  3.1(b) of the SCM  Agreement  to mean that a 
prohibited contingency would exist only w here the measure " per se  and necessarily exclude[s]" 
any use of imported goods, and thereby confined the applicability of Article  3.1(b) to those 
situations where the subsidy recipient is required to use domestic goods to the comple te exclusion 
of imported  goods.  
The Appellate  Body agreed with the European  Union 's contention that the existence of contingency 
under Article  3.1(b) is not limited to cases where the measure requires the subsidy recipient to use 
domestic goods to the complete exclusion of import ed goods, insofar as Article  3.1(b) does not 
require demonstrating any particular quantity or level of displacement of imported goods by WT/AB/28  
 
- 34 - 
 
domestic goods in order to determine the existence of contingency. The Appellate  Body therefore 
turned to examine wheth er the Panel indeed articulated such a legal standard in its analysis.  
The Appellate  Body recalled the Panel's finding that, by their terms, both the First and Second 
Siting Provisions speak of "siting" and a commitment to "manufacture" or "assemble" certa in 
goods, and are silent as to the "use" of any imported or domestic goods. The Appellate  Body also 
noted the Panel's conclusion that a reading under which Boeing would be required to use domestic 
over imported goods was just one among several possible rea dings of these provisions. Having 
considered other possible readings of the terms of both provisions, the Panel concluded that 
"[t]he  contingency on siting certain production activities within the state of Washington [under the 
First Siting Provision] does  not entail any explicit, or any necessarily implied, requirement to use 
domestic goods", and that "[n]o express or obvious contingency results from the terms used in the 
[Second Siting Provision], nor can one be deri ved inevitably from its terms."  
When re ad in this context, the Appellate  Body understood the Panel's statements challenged by 
the European  Union  as referring to the "implications" of those terms and merely recognizing that a 
condition requiring the use of domestic over imported goods could not be "necessarily" derived 
from the language of the First and Second Siting Provisions. In particular, in the Appellate  Body's 
view, the phrase " per se and necessarily exclude" links back to the Panel's understanding of the 
words "necessary implication" as r eferring to contingency that must "result inevitably from the 
words actually used in the legislation", or that "any other interpretation would be unreasonable". 
In this light, the Appellate  Body understood the Panel to have simply recognized that, based on  
both the words actually used in the First and Second Siting Provisions and by the necessary 
implication from those words, no de jure requirement existed for Boeing to use domestic over 
imported goods. Moreover, recalling the European  Union 's assertions be fore the Panel, the 
Appellate  Body considered that, in making its statement that the First and Second Siting Provisions 
do not " per se and necessarily exclude" the possibility for Boeing to use goods from outside 
Washington, the Panel was not articulating a legal standard, but was rather addressing certain 
contentions advanced by the European  Union . 
The European  Union  also argued that, since the Panel recognized that the legal standard reflected 
in the term "contingent" is the same for both de jure and de facto contingency, and having erred 
in its de jure contingency analysis under Article  3.1(b), the Panel also erred in its interpretation of 
Article  3.1(b) in the context of its de facto contingency analysis of the First Siting Provision. 
The Appellate  Body noted that the Panel focused its analysis on the "actual operation" of the First 
Siting Provision and its conclusion that the First Siting Provision does not demonstrate de facto 
contingency was based on the absence of any "factual evidence in the Departme nt of Revenue's 
determination or in how Boeing will organize the sourcing for the production of the 777X indicating 
a de facto requirement to use any domestic goods, including wings or fuselages". Accordingly, in 
the Appellate  Body's view, the Panel simply  found that the additional evidence before it confirmed 
its understanding of the First Siting Provision in the context of its de jure contingency  analysis, and 
was insufficient to establish inconsistency under Article  3.1(b).  
The Appellate  Body rejected th e European  Union 's claims that the Panel erred in its interpretation 
of Article  3.1(b) of the SCM  Agreement  in the context of its de jure contingency analyses of the 
First and Second Siting Provisions, as well as its de facto contingen cy analysis of the 
First Siting  Provision.  
3.3.3   Whether the Panel erred in its application of Article  3.1(b) of the SCM  Agreement  
in the context of its de jure contingency analysis in respect of the First Siting Provision  
The European  Union  claimed that the Panel's finding that the First Siting Provision does not, 
expressly or by necessary implication, require the use of domestic over imported goods constitutes 
an error in the application of Article  3.1(b) of the SCM  Agreement . In the Europe an Union 's view, 
since the First Siting Provision requires Boeing "to establish the 777X production program in 
Washington State, ' in which ' the wings and fuselages are to be integrated", and since "at least 
some 777X wings and fuselages" have to be manufac tured in Washington, the provision 
"appropriates Boeing's commercial decision -making, leaving it with precisely one option if it wants 
to benefit from billions of US dollars in subsidies – to use at least some of the wings and fuselages 
manufactured in Was hington State, in the final assembly of  the 777X in Washington State."  WT/AB/28  
 
- 35 - 
 
The Appellate  Body began by recalling that the Panel's finding that, even if the terms actually used 
in the First Siting Provision do not preclude a scenario in which wings and fuselage s manufactured 
in Washington "were 'used' in the final assembly of 777X commercial airplanes in the state of 
Washington", two other "possible and equally reasonable" readings of these terms existed that 
would allow the manufacturer to benefit from the subs idies. The Appellate  Body also noted that the 
relevant question in determining the existence of contingency under Article  3.1(b) is not whether 
the eligibility requirements under a subsidy may result  in the use of more domestic and fewer 
imported goods, bu t whether the measure, by its terms or by necessary implication therefrom, 
sets out a condition requiring the use of domestic over imported goods. Thus, whether any reading 
of the First Siting Provision "would allow the subsidy recipient to avail itself of  the subsidy without 
the use of domestic over imported wings and fuselages, at least for some aircraft for some time" 
did not directly address the issue of contingency under Article  3.1(b). For the Appellate  Body, even 
if, under all scenarios discussed by the Panel, Boeing would likely use some amount of 
domestically produced wings and fuselages, this observation is not in itself sufficient to establish 
the existence of de jure  conditionality, reflected in the measure's terms or arising by necessary 
implica tion therefrom, requiring the use o f domestic over imported goods.  
In this light, the Appellate  Body noted the Panel's finding that the condition set out in the terms of 
the First Siting Provision does not relate to the use of domestic or imported goods bu t rather to 
the siting  of certain manufacturing activities in Washington, and agreed with the Panel that the 
fact that the terms actually used in the First Siting Provision do not preclude a scenario in which 
"wings and fuselages manufactured in the state of Washington were 'used' in the final assembly of 
777X commercial airplanes in the state of Washington … is not the same as concluding that it is a 
requirement or condition for the subsidies that necessarily derives from those terms." Moreover, 
the Appell ate Body considered that the two "alternative" readings of the First Siting Provision by 
the Panel confirm that the conditionality established on the basis of its terms is linked to the 
manufacture  of wings and fuselages, and that the use of those products  in the final assembly of 
the 777X is not a condition for receiving the subsidy, but is rather a consequence of the 
requirement to manufacture them domestically. According to the Appellate  Body, the absence of 
any express language in the First Siting Provi sion, or any necessary implication therefrom, that 
would relate to a condition requiring the use of domestic over imported goods in the First Siting 
Provision, coupled with the fact that it "involves a one -time decision on the initial establishment, 
but no t the continuation, of certain manufacturing activities", were particularly relevant 
considerations for the Panel's ultimate conclusion that "[t]he contingency on siting certain 
production activities within the state of Washington does not entail any expli cit, or any necessarily 
implied, requ irement to use domestic goods."  
The Appellate  Body therefore rejected the European  Union 's claim that the Panel erred in its 
application of Article  3.1(b) of the SCM  Agreement  in finding that the First Siting Provision does 
not make the aerospace tax measures de jure contingent upon the use o f domestic over 
imported  goods . 
3.3.4   Whether the Panel erred in its application of Article  3.1(b) of the SCM  Agreement , 
or under Article  11 of the DSU, in the context of its de jure contingency analysis in 
respect of the Second Siting Provision  
The European  Union  further claimed that the Panel erred in its application of Article  3.1(b) of the 
SCM Agreement  by unduly restricting the scope of the evidence from which it assessed de jure 
contingency in respect of the Second Siting Provision, and in particular by failing to rely on the 
United  States ' "admission" that, "if the completed fuselages and wings were produced outside the 
United  States  and then imported, [the Washington Department of Revenue] would likely determine 
that some final assembly or wing assembly had been sited outside Washington, meaning the 
Second Siting  Provision would be triggered".  
Before addressing the issue of the scope of evidence relevant to a de jure or a de fact o analysis, 
the Appellate  Body recalled that the relevant question under Article  3.1(b) is whether a condition 
requiring the use of domestic over imported goods can be discerned from the terms of the 
measure itself, or inferred from its design, structure, modalities of operation, and relevant factual 
circumstances. The factual circumstances potentially relevant to an assessment of whether a 
subsidy is de facto contingent in the circumstances of this case could include, for example, the 
existence of a multi -stage production process, the level of specialization of the subsidized inputs, 
or the level of integration of the production chain in the relevant industry.  WT/AB/28  
 
- 36 - 
 
The Appellate  Body noted that both import substitution subsidies and other subsidies that relate t o 
domestic production may have adverse effects in respect of imported goods. Subsidies contingent 
upon import substitution, by their nature, adversely affect competitive conditions of imported 
products. Yet, also subsidies that relate to the production of certain goods in a Member's domestic 
territory can ordinarily be expected to increase the supply of the subsidized domestic goods in the 
relevant market, which would have the consequence of increasing the use of these subsidized 
domestic goods downstream a nd adversely affecting imports. In the specific case of subsidies 
granted for the production of both an input and a final good, subsidy recipients would likely both 
"produce" and "use" the subsidized inputs in the production of the subsidized final good. S uch 
subsidies would have consequences for the subsidized producers' input -sourcing decisions to the 
extent that, having been required to produce an input domestically, and for reasons of production 
costs and efficiency, they would likely use at least some of these inputs in their downstream 
production activities. This is even more so in instances where the subsidized input is specialized in 
nature or where vertical integration between the upstream and downstream stages of the 
production chain exists. Howeve r, while such subsidies may foster the use of subsidized domestic 
goods and result in displacement in respect of imported goods, such effects do not, in and of 
themselves, demonstrate the existence of a requirement to us e domestic over imported goods.  
At the same time, whether a subsidy is contingent upon the use of domestic over imported goods 
is to be " inferred  from the total configuration of the facts constituting and surrounding the granting 
of the subsidy". In particular, factual circumstances, where r elevant, may form part of the context 
for understanding the measure's design, structure, and modalities of operation in a particular 
market, all of which may assist in discerning whether or not a de facto contingency exists. 
The design and structure of a m easure granting a subsidy may be adapted to factual 
circumstances such as a multi -stage production process where specialized inputs and final goods 
are subsidized, or where the production chain is vertically integrated. The modalities of a measure 
so desig ned or structured may then operate, such that conditions for eligibility or access to the 
subsidy may entail a condition requiring the use of domestic over imported goods. However, 
whether a subsidy is merely conditional upon the domestic production of cer tain goods or upon the 
use by the subsidy recipient of domestic over imported goods should be assessed on a 
case-by-case basis.  
The Appellate  Body then recalled that the Panel found that the Second Siting Provision is not 
de jure contingent upon the use of  domestic over imported goods and, in analysing whether it 
entails a de facto contingency, posed a series of questions to the United  States  in respect of 
certain counterfactual scenarios. The Appellate  Body noted that the Panel considered the 
United  States ' responses to be "significant in understanding the modalities of operation  of the 
conditions of the Second Siting Provision", which were subject to the Washington Department of 
Revenue's administrative discretion, and its conclusion that "the likely actio ns of the relevant 
administrative agency in response to possible factual scenarios are indicative  of whether, in 
practice, a subsidy would remain available so long as a manufacturer used domestic goods, while 
that same subsidy would be terminated if a manu facturer used those same goods from a foreign 
source." For the Appellate  Body, while it is conceivable that the United  States ' responses to the 
Panel's questions may have shed light on the necessary implication of the terms of the Second 
Siting Provision, they may have been equally relevant for understanding the measure's design, 
structure, and modalities of operation in the context of the relevant factual circumstances. While 
recognizing that the Panel compartmentalized its de jure and de facto contingency  analyses, the 
Appellate  Body did not consider that the Panel erred in considering the United  States ' responses to 
its questions in the context of examining the design, structure, and modalities of operation of the 
Second Siting Provision in the context of  the relevant factual circumstances.  
The European  Union  also claimed that, by adopting in the context of its de jure analysis an 
interpretation of the Second Siting Provision "devoid of any evidentiary basis", the Panel failed to 
make an objective assessme nt of the matter under Article  11 of the DSU, in particular by stating 
that "the terms 'any final assembly or wing assembly' [in the Second Siting Provision] are explicitly 
tied, and arguably limited, to the specific assembly operations that were 'the basi s of a siting' 
under the First Siting Provision". The Appellate  Body agreed with the European  Union  that the 
words of the Second Siting Provision do not appear to limit its scope of application to the 
relocation of specific assembly operations that were th e basis of a siting under the First Siting 
Provision. However, the Appellate  Body considered that, in making the statements with which the 
European  Union  takes issue, the Panel merely described one possible situation under which the 
Second Siting Provision would be activated. In any event, the Appellate  Body did not consider that WT/AB/28  
 
- 37 - 
 
the Panel's statements were critical for its ultimate finding that the Second  Siting Provision does 
not demonstrate de jure contingency upon the use of domestic over imported goods, and 
disagreed with the European  Union 's contention that the Panel's understanding of the Second 
Siting Provision is "devoid of any evidentiary basis".  
In view of the above, the Appellate  Body rejected the European  Union 's claim that the Panel erred 
in the application of Article  3.1(b) of the SCM  Agreement  in finding that the Second Siting 
Provision, considered separately or jointly with the First Siting Provision, does not make the 
B&O aerospace tax rate de jure contingent upon the use of do mestic over imported goods. 
The Appellate  Body also rejected the European  Union 's claim that the Panel failed to make an 
objective assessment of the matter under Article 11 of the DSU in finding that the Second Siting 
Provision, considered separately or jointly with the First Siting Provision, does not make the B&O 
aerospace tax rate de jure contingent upon the use of domestic over imported goods.  
3.3.5   Whether the Panel erre d in its de facto contingency analysis under Article  3.1(b) 
of the SCM  Agreement  
The United  States  claimed that the Panel erred in the interpretation and application of 
Article  3.1(b) of the SCM  Agreement  in finding that the B&O aerospace tax rate is de facto 
contingent  upon the use of domestic over imported goods. In particular, the United  States  argued 
that the Panel erroneously interpreted and applied Article  3.1(b) of the SCM  Agreement  because: 
(i) Boeing does not and will not "use" wings to produce the  777X; (ii) it did not address the 
meaning of the terms "domestic" or "imported" and did not conduct "a meaningful analysis" as to 
whether wings resulting from wing assembly in Washington would  necessarily be "domestic"; 
and (iii) improperly used hypotheti cal scenarios to determine what would trigger the Second Siting 
Provision.  The United  States  also argued that the Panel erroneously interpreted and applied 
Article  3.1(b) of the SCM  Agreement  as if it prohibited subsidies conditional upon the domestic 
siting of production activities.  
The Appellate  Body noted that,  in respect of the Second Siting Provision, the question at issue was 
whether, notwithstanding that the measure itself expressly concerns only the siting of certain 
manufacturing  and assembly operations, which was found not to demonstrate de jure contingency, 
a condition requiring the use of domestic over imported goods nevertheless exists on a de facto 
basis. The Appellate  Body recalled that, by its express terms, the Second Siti ng Provision is 
triggered in the event of a determination by the Washington Department of Revenue that final 
assembly or wing assembly "has been sited" outside Washington, and thus the condition contained 
in the measure concerns the siting or location of t he relevant assembly activities.  
Thereafter, the Appellate  Body recalled the relevant aspects of the Panel's analysis of the 
European  Union 's claim of de facto contingency. The Appellate  Body noted that, t he Panel 
evaluated relevant circumstances relating to the Second Siting Provision, in particular, the 
circumstances in which the provision would be triggered.  Noting that "the conditionality in the 
Second Siting Provision is phrased in the negative", the Panel understood the Second Siting 
Provision to set forth the factual circumstances that would, if they arose, cause Boeing's 777X 
aircraft program to lose access to the subsidy. It was thus clear to the Panel that so long as such 
"siting" does not happen, the Second Siting Provision "remains dormant, opera ting passively as a 
deterrent to safeguard the status  quo" that satisfied the First Siting Provision. For the Panel, this 
"passive, deterrent nature of the measure" raised "the question as to what sorts of factual 
evidence could inform the analysis of whet her ongoing access to the B&O  aerospace tax rate … is 
contingent de facto on the use of domestic over imported 777X wings." At the time of the Panel's 
assessment, the Second Siting Provision had not been triggered, and therefore no evidence 
existed as to i ts actual operation and as to what would trigger the Second Siting Provision.  
The Panel therefore observed that it was "confronted by the counterfactual question of what would 
trigger the Second Siting Provision". The Panel considered "particularly relevan t the discretion 
granted" to the Washington Department of Revenue to terminate the availability of the B&O 
aerospace tax rate if it determines that Boeing has 'sited' assembly of wings outside of 
Washington. The Panel underscored that the exercise of discr etion granted to the Washington 
Department  of Revenue would be inconsistent with Article  3.1(b) of the SCM  Agreement  if, 
in practice, it resulted in the termination of the B&O aerospace tax rate for the 777X program on 
the basis of a determination that Boe ing, by virtue of using imported 777X wings, had "sited" 777X 
wing assembly outside the state of Washington.  WT/AB/28  
 
- 38 - 
 
In an effort  to understand what would trigger the Second Siting Provision, the Panel posed two 
questions to the United  States  (Panel questions Nos.  40 and 80) based on hypothetical scenarios.  
Under the first scenario, the Panel asked whether the Second Siting Provision would be triggered 
if, assuming arguendo  that it was possible for Boeing to purchase completed wings, Boeing would 
continue manufactu ring wings itself in Washington and, in addition, would purchase wings from 
another manufacturer in Washington. In response to this scenario, the United  States  indicated 
that, since the question implies that no siting took place outside Washington, the Dep artment of 
Revenue likely would not determine that the Second Siting Provision had been triggered.  
Under  the second hypothetical scenario, the Panel asked whether the Second Siting Provision 
would be triggered if Boeing would continue manufacturing wings i n Washington and, in addition, 
would purchase them from another producer outside of Washington. In response, the 
United  States  noted that, assuming arguendo  that it is possible for Boeing to import completed 
fuselages and wings for use in the production of  the 777X, if the completed fuselages and wings 
were produced outside the United  States  and then imported, the Washington Department of 
Revenue would likely determine that some final assembly or wing assembly had been sited outside 
Washington, meaning the Second Siting Provision would be triggered.  
The Appellate  Body recalled  that, on the basis of the United  States ' answers to Panel questions 40 
and 80, the Panel concluded that "the only decision by Boeing to source wings which it would then 
'use' in producing the 777X that would not trigger the Second Siting Provision would be to source 
such wings within Washington State, which by definition would be domestic wings."  On this basis, 
the P anel found that no wings can "be sourced by Boeing from outside the state of Washington 
without the consequence of activating the Second Siting Provision". The Appellate  Body noted, 
however, that the Panel did not address in its analysis the relevance of t he United  States ' response 
to Panel question 7, in which the United  States  noted that a single instance of assembly outside 
Washington would not trigger the Second Siting Provision.  
In evaluating  the Panel's assessment of the Second Siting Provision, the Appellate  Body took note 
of the Panel's  key conclusion that the United  States ' responses clarify that the Second Siting 
Provision is "not only aimed at" preventing the siting of assembly operations outside of 
Washington, but "also concerns the 'use' of cert ain goods, and specifically the origin of those 
goods". The Appellate  Body did not consider that a statement by the Panel that a measure may 
"concern" the domestic or imported origin of goods is in itself sufficient to establish the existence 
of de facto contingency to use domestic over imported goods within the meaning of Article  3.1(b). 
Rather, for the Appellate  Body the question is whether a condition requiring the use of domestic 
over imported goods can be discerned from the terms of the measure itself,  or inferred from the 
measure's design, structure, and modalities of operation, in light of  the relevant factual 
circumstances that provide the context for understanding the  measure and its operation. 
The Appellate  Body considered that other statements by the Panel underscored its understanding 
that the operation of the siting condition under the measure at issue may relate only to certain 
consequences  for the importation of goods. Thus, the Appellate  Body did not consider that the 
Panel's analysis and reas oning w ere sufficient to establish that the way the Second Siting Provision 
operates with respect to the siting of production and assembly makes the B&O aerospace tax rate 
de facto contingent upon the use of domestic over imported goods.  
With respect to the United  States ' responses to the counterfactual scenarios posed by the Panel, 
the Appellate  Body first observed that using counterfactual or hypothetical scenarios is a 
permissible tool of legal analysis in WTO dispute settlement, and th at the absence of evidence 
pertaining to the actual application of a measure should not preclude the possibility for a Member 
to challenge a law that has not yet been applied. The Appellate  Body recalled, in this respect, that 
critical parts of the Panel's  reasoning depended on whether the exercise of discretion by the 
Washington Department of Revenue would trigger the Second Siting Provision, and the 
United  States ' responses were, therefore, of central importance for the Panel's conclusion 
regarding de facto contingency. However, the Appellate  Body expressed concern about the limited 
consideration the Panel gave to the United  States ' responses to the Panel's questions and the 
conclusions the Panel drew from them.  In particular, the Appellate  Body noted that the questions 
posed by the Panel were conjectural and based on arguendo  assumptions. It also noted the 
probabilistic nature of the United  States ' response about how the Washington Department of 
Revenue might exercise its discretion if certain h ypothetical factual circumstances  were to  arise in 
the future.  WT/AB/28  
 
- 39 - 
 
The Appellate  Body further took note of some of the United  States ' statements made in response 
to the Panel's questions. First, the Appellate  Body recalled the United  States ' statement that 
whether fuselages and wings are imported is "irrelevant" for purposes of the Second Siting 
Provision because it is the siting of production activities, not the domestic or imported character of 
goods, that determines whether or not the Second Siting Provision  would be triggered. Second, 
the Appellate  Body recalled the United  States ' observation that, even if importation of completed 
777X wings and fuselages were technically possible, not all importation of such structures would 
carry the consequence that the United States  outlined, for there could be a scenario in which 
assembly would still occur in Washington, but the export of such structures for non -assembly 
operations and the subsequent importation of those structures would not trigger the Second Siting 
Provision. Third, the Appellate  Body recalled the United  States ' separate response to the Panel that 
an isolated instance of final assembly or wing assembly outside Washington may not trigger the 
Second Siting Provision.  
The Appellate  Body underscored that th e Panel did not refer in its Report to any of the 
above -mentioned  statements, either in its description of the United  States ' responses to the 
Panel's questions, or when it reasoned its finding of de  facto contingency. Given the Panel's near 
sole reliance on the United  States ' responses to Panel questions Nos. 40 and 80, the 
Appellate  Body stated that it would have expected the Panel to have conducted a more careful 
analysis and provided an explanation as to how it could justify its singular reliance on the  
United  States ' responses in light of the various caveats in those responses. The Appellate  Body 
therefore did not see that the Panel, in its analysis of de facto  contingency, properly established 
that the Second Siting Provision, in addition to the condit ions relating to the siting of production 
activities, also entails a condition requiring the use of domestic over imported goods . 
The Appellate  Body thus reversed the Panel's finding that the B&O aerospace tax rate is de facto 
contingent upon the use of do mestic over imported goods within the meaning of Article  3.1(b) of 
the SCM  Agreement . The Appellate  Body also reversed the Panel's finding that the United  States  
has acted inconsistently with Article  3.2 of the SCM  Agreement . 
Having reversed  the Panel's finding of inconsistency under Article  3.1(b) of the SCM  Agreement , 
the Appellate  Body made no recommendation in this dispute, and noted that the Panel's 
recommendation pursuant to Article  4.7 of the SCM  Agreement  on the basis of that finding of 
inconsistency cannot stand.  
3.4  Appellate  Body  Report, European  Union  – Anti-Dumping Measures on Imports of 
Certain Fatty Alcohols from Indonesia , WT/DS4 42/AB/R  
This dispute concerned anti -dumping duties imposed by the European  Union  on 8 November  2011 
on imports of certain fatty alcohols and their blends originating in Indonesia. In particular, this 
dispute focused on the EU  authorities' treatment of one of the investigated Indonesian exporters, 
PT Musim Mas, in the underlying anti -dumping investigation. Be fore the Panel, Indonesia claimed 
that the anti -dumping measures imposed by the European  Union  in its Final Determination 
(Council Implementing Regulation (EU) No.  1138/2011 of 8  November  2011) were inconsistent 
with Articles  2.3, 2.4, 3.1, 3.5 , and 6.7 of  the Anti -Dumping  Agreement . 
Indonesia's claim under Article  2.4 of the Anti -Dumping  Agreement  concerned a downward 
adjustment that the EU  authorities made to the export price of PT  Musim Mas for payments made 
by PT  Musim Mas to ICOF -S, a related trading c ompany based in Singapore. The EU  authorities 
established that PT  Musim Mas paid ICOF -S a mark -up for sales made by ICOF -S on behalf of 
PT Musim Mas to customers in the European  Union . The EU  authorities considered that, in respect 
of certain export sales by PT  Musim Mas, ICOF -S performed functions similar to those of an agent 
working on a commission basis. Hence, the EU  authorities found that the mark -up paid by 
PT Musim Mas to ICOF -S represented a payment for a service for which there was no 
corresponding  pricing component on the domestic side. The EU  authorities thus characterized this 
mark-up as a commission paid in respect of export sales to the European  Union , and treated it as 
a difference affecting price comparability for which a downward adjustment to the export price was 
warranted. The EU  authorities made this adjustment of their own volition and not at the request of 
any of the interested parties in the investigation.  WT/AB/28  
 
- 40 - 
 
Indonesia's claim under Article  6.7 of the Anti -Dumping  Agreement  related to the on -the-spot 
investigations conducted by the EU  authorities at the premises of PT Musim Mas in Indonesia and 
at certain of its related companies, including ICOF -S in Singapore. These visits occurred in the 
course of November 2010.  
On 12  November 2016, about a month before the Panel Report was circulated to all 
WTO Members, the anti -dumping measures imposed pursuant to t he Final  Determination expired.  
The European  Union  requested the Panel to issue a preliminary ruling that its jurisdiction to  decide 
this case had lapsed, pursuant to Article  12.12 of the DSU, following the alleged suspension of 
Panel proceedings for more than 12  months. The European  Union  alleged that, following the 
establishment but prior to the composition of the Panel, the P ermanent Mission of Indonesia had 
communicated a "request" to the WTO Secretariat on 11  July 2013 with a view to suspending the 
work of the Panel in the sense of the first sentence of Article  12.12 of the DSU. Given the 
ambiguity concerning the meaning and  intention of Indonesia's communication, the Panel found 
that the European  Union  had not demonstrated that Indonesia did, in fact, make a "request" in the 
sense of the first sentence of Article  12.12 of the DSU. The Panel found, in the absence of such a 
request, that its work had not been suspended in the sense of Article  12.12 of the DSU and, 
consequently, that the authority for the establishment of the Panel had not lapsed.  
Before  the Panel, Indonesia claimed that the EU  authorities acted inconsistently w ith Articles  2.4 
and 2.3 of the Anti -Dumping  Agreement  by making an improper allowance for a factor that did not 
affect price comparability. Indonesia challenged the decision by the  EU authorities to treat a 
mark-up paid by an Indonesian producer (PT  Musim  Mas) to its related trader (ICOF -S) as a 
difference affecting price comparability, resulting in a downward adj ustment to the export price. 
In particular, Indonesia claimed that the EU  authorities had mischaracterized the mark -up as a 
trading commission. I ndonesia argued that the mark -up was, rather, a transfer of funds between 
PT Musim Mas and ICOF -S that was simply an allocation, or shifting, of funds (profits) from one 
pocket to another within a single economic entity. In Indonesia's view, this meant tha t the 
EU authorities had adjusted the export price for a factor that did not  affect price comparability. 
As a consequence, the allowance led to an unfair comparison between the export price and the 
normal value and was thus inconsistent with Article  2.4 of  the Anti -Dumping  Agreement . 
Indonesia  also made a consequential claim under Article  2.3 of the Anti -Dumping  Agreement . 
The Panel rejected Indonesia's argument that the existence of what Indonesia labelled a "single 
economic entity" is dispositive of wheth er a given payment is a difference that affects price 
comparability under Article  2.4. Rather, in the Panel's view, th e dividing line between: 
(i) an internal allocation of funds within a single economic entity; and (ii) an expense that is linked 
to either  the export side or the domestic side, or to both sides but with different amounts, such 
that price comparability is affected, is dependent on the particular situation and evidence before 
an investigating authority in a given case. The Panel further consid ered that Indonesia had not 
established any asymmetry between the export price and the normal value with which it was 
compared. Finally, the Panel held that the EU  authorities' treatment of a payment made by 
another investigated Indonesian exporter to its related trading company did not undermine the 
explanations given for their treatment of PT  Musim Mas' payments to ICOF -S. Having rejected the 
grounds on which Indonesia based its claim under Article  2.4 of the Anti -Dumping  Agreement , the 
Panel concluded th at Indonesia had not demonstrated that the EU  authorities acted inconsistently 
with Article  2.4 of the Anti -Dumping  Agreement  by making an improper deduction for a factor that 
did not affect price comparability. As Indonesia's claim under Article  2.3 of th e 
Anti-Dumping  Agreement  was consequential to its claim under Article  2.4, the Panel also 
concluded that Indonesia had not demonstrated that the EU  author ities acted inconsistently 
with Article  2.3. 
Indonesia also claimed that the European  Union  had acted inconsistently with Article  6.7 of the 
Anti-Dumping  Agreement  by failing to disclose to PT Musim Mas the results of on -the-spot 
investigations conducted at its premises and at the premises of its related companies, including 
ICOF-S. The Panel found that th e EU  authorities had failed to explain those parts of the 
questionnaire response or other information supplied for which supporting evidence was 
requested. The EU  authorities had also failed to explain whether: (i) any further information was 
requested; (i i) the producer made available the evidence and additional information requested; 
and (iii) the investigating authorities were or were not able to confirm the accuracy of the 
information supplied by the verified company in, inter alia, its questionnaire response. The Panel WT/AB/28  
 
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therefore concluded that the EU  authorities had not made available or disclosed the "results of any 
such investigations" to PT Musim Mas, as required by Article  6.7 of the Anti -Dumping  Agreement . 
Finally, Indonesia c laimed that the EU  authorities had acted inconsistently with Article  3.5 of the 
Anti-Dumping  Agreement  by concluding that imports of fatty alcohols caused material injury to the 
domestic industry without separately analysing two other known factors also ca using injury, 
namely, the economic crisis, and issues related to the European  Union 's domestic industry's access 
to raw materials. Indonesia further claimed that the EU  authorities had, as a consequence, acted 
inconsistently with Article  3.1 of the Anti -Dumping  Agreement  by failing to conduct an "objective 
examination" on the basis of "positive evidence". The Panel found that Indonesia had not 
demonstrated that the EU  authorities acted inconsistently with Articles  3.1 and 3.5 of the 
Anti-Dumping  Agreement  in their analysis of the "economic crisis factor" by: (i) failing adequately 
to separate and distinguish the injurious effects of the economic crisis from those of the dumped 
imports; (ii) erring in their determination of the year of commencement of the eco nomic crisis; or 
(iii) failing to address certain arguments and evidence presented by interested parties during the 
investigation. Further, the Panel found that Indonesia had not demonstrated that the 
EU authorities acted inconsistently with Articles  3.1 a nd 3.5 of the Anti -Dumping  Agreement  by 
failing to address the domestic industry's access to raw materials, since this did not constitute an 
other "known factor" within the meaning of Article  3.5. In addition, in view of the quality and 
quantity of the evi dence provided by PT Musim Mas, Indonesia h ad not demonstrated that 
the EU authorities acted inconsistently with Articles  3.1 and 3.5 by failing to address explicitly the 
raw material price fluctuati ons during the economic crisis.  
3.4.1   Determination of dumping – Article  2.4 of the Anti -Dumping  Agreement  
Indonesia appealed the Panel's finding that Indonesia had not demonstrated that the 
EU authorities acted inconsistently with Article  2.4 of the Anti -Dumping  Agreement  by making an 
improper deduction for a factor that did not affect price comparability. Indonesia contended that 
the Panel erred in its interpretation and application of Article  2.4 in assessing whether the 
EU authorities' downward adjustment to PT  Musim Mas' export price was proper. Indonesia also 
argued that the Panel acted inconsistently with Article  17.6(i) of the Anti -Dumping  Agreement  and 
Article  11 of the DSU in its analysis of Indonesia's claim under Article  2.4 of the 
Anti-Dumping  Agreement . Consequently, Indonesia requested the Appellate  Body to reverse the 
Panel's conclusion under Article  2.4 of the Anti -Dumping  Agreement . Indonesia also requested the 
Appellate  Body to complete the legal analysis and find that the EU  authorities acted inconsistently 
with Article  2.4 by applying an incorrect le gal standard in their decision to make a downward 
adjustment to PT  Musim Mas' export price.  
Indonesia's appeal was primarily premised on its argument that the key question in deciding how 
to treat revenues and expenses of related companies is whether those  companies form part of a 
"single economic entity". Indonesia asserted that, in its interpretation of Article  2.4, the Panel did 
not address whether the existence of a single economic entity or the relationship between parties 
could affect the determinatio n of whether a factor affected price comparability, even though 
Indonesia's arguments identified that as a key issue. Indonesia also maintained that the Panel 
erred in stating that it was not convinced that the existence of what Indonesia denotes as a "sin gle 
economic entity" is dispositive of whether a given mark -up qualifies as a difference that affects 
price comparability under Article  2.4. The European  Union  highlighted that Article  2.4 does not 
contain any textual element suggesting that the fact that a trader and the exporter are related or 
constitute a single economic entity plays a decisive role for the purpose of making an adjustment 
in order to ensure a fair comparison. The European  Union  also argued that Indonesia's claims on 
appeal were based on an incomplete and incorrect reading of the Panel Report.  
The Appellate  Body observed that the focus of Article  2.4 of the Anti -Dumping  Agreement  is not 
merely on a comparison between the normal value and the export price, but predominantly on the 
means to ensure the fairness of that comparison. To this end, investigating authorities are 
required to make due allowance for differences affecting price comparability. There are no 
differences affecting price comparability that are precluded, as such, from being the object of an 
allowance. Instead, the need to make due allowances must be assessed in light of the specific 
circumstances of each case. The Appellate  Body considered the Panel's articulation of the legal 
standard under Article  2.4 to be consonant with i ts understanding of this provision. For the 
Appellate  Body, the existence of a close relationship between transacting companies would be 
pertinent to the extent that it affects the relevant transactions in such a way as to affect the WT/AB/28  
 
- 42 - 
 
comparability of the export price and the normal value. Thus, the Appellate  Body considered that 
the Panel did not err in rejecting Indonesia's argument that the existence of what Indonesia 
denotes as a "single economic entity" is dispositive of whether a given mark -up qualifies as a 
difference that affects price comparability under Article  2.4. Accordingly, the Appellate  Body found 
that Indonesia had not demonstrated that the Panel erred in its interpretation of Article  2.4 of the 
Anti-Dumping  Agreement . 
Having so found, the Appellate  Body clarified the limits of its finding. The Appellate  Body stressed 
that it was not ruling, nor did it consider that the Panel had ruled, that the nature and degree of 
affiliation between related companies are irrelevant to the issue of whether any allowances should 
be made in order to ensure a fair comparison between the normal value and the export price. 
The Appellate  Body also did not rule, in the abstract, on the circumstances in which an inquiry into 
the nature of the re lationship between transacting entities will suffice or be determinative of the 
issue of whether allowances should be made pursuant to Article  2.4 of the Anti -
Dumping  Agreement . 
With respect to Indonesia's claim that the Panel erred in its application of Article 2.4 to the facts of 
this case, the Appellate  Body first observed that several of Indonesia's claims of error were 
predicated on the Appellate  Body's acceptance of Indonesia's view as to the correct interpretation 
of Article  2.4. Given that the Appel late Body did not find that the Panel erred in its interpretation of 
Article  2.4, or that the existence of a single economic entity is dispositive of whether a given 
mark-up qualifies as a difference that affects price comparability under Article  2.4, 
the Appellate  Body considered it unnecessary to examine further these aspects of Indonesia's 
claim. Instead, the Appellate  Body confined its review to Indonesia's claims that the Panel erred: 
(i) in its review of whether the EU  authorities' explanations reveal ed a sufficient evidentiary basis 
for treating the mark -up paid by PT  Musim Mas to ICOF -S as a difference affecting price 
comparability; and (ii)  in its evaluation and rejection of Indonesia's argument that the allowance 
resulted in an asymmetrical compari son with the normal value.  
The Appellate  Body considered that the Panel's review of the EU  authorities' evaluation was 
properly focused on whether that evaluation was consistent with Article  2.4 of the 
Anti-Dumping  Agreement . The Appellate  Body was of the view that the Panel did not err in finding 
that the EU  authorities had a sufficient evidentiary basis for establishing that the mark -up paid by 
PT Musim Mas to ICOF -S in connection with export sales to the European  Union  was a difference 
affecting price co mparability under Article  2.4. Moreover, contrary to Indonesia's argument, the 
Appellate  Body considered that the Panel's reasoning did not imply that, when confronted with 
transactions between closely affiliated parties, investigating authorities may repl ace the expenses 
actually incurred with the expenses that would have been incurred had the producing entity 
obtained the service from an independent provider. Accordingly, the Appellate  Body found that 
Indonesia had not demonstrated that the Panel erred in  its application of Article  2.4 of the 
Anti-Dumping  Agreement  to the facts of this case.  
With respect to Indonesia's claim that the Panel acted inconsistently with Article  17.6(i) of the 
Anti-Dumping  Agreement  and Article  11 of the DSU, the Appellate  Body rejected Indonesia's 
arguments that the Panel: (i)  improperly concluded that the EU  authorities had complied with 
Article  2.4 before it even addressed Indonesia's arguments; (ii) repeatedly engaged in a de novo 
review of the record evidence; and (iii)  ignored or summarily dismissed key evidence and 
arguments by Indonesia. Thus, the Appellate  Body found that Indonesia had not demonstrated 
that the Panel acted inconsistently with Article  17.6(i) of the Anti -Dumping  Agreement  or 
Article  11 of the DSU in its analysis of Indonesia's claim under Article  2.4 of the 
Anti-Dumping  Agreement . 
Consequently, the Appellate  Body upheld the Panel's finding that Indonesia had not demonstrated 
that the EU  authorities acted inconsistently with Article  2.4 of the Anti -Dumping  Agreement , by 
treating the mark -up paid by PT  Musim Mas to ICOF -S as a difference affecting price 
comparability, and making a downward adjustment to the export price for that reason.  WT/AB/28  
 
- 43 - 
 
3.4.2   Disclosure of results of on -the-spot investigations  – Article  6.7 of the 
Anti-Dumping  Agreement  
The European  Union  appealed the Panel's finding that the EU authorities acted inconsistently with 
Article  6.7 of the Anti -Dumping  Agreement  because they failed to make available or disclose the 
results of the on -the-spot investigations conducted on the premises of PT Musim Mas and its 
related companies. In particular, the European  Union  alleged that the Panel erred by interpreting 
Article  6.7 as imposing an obligation to provide a document setting out a complete description of 
the verification process.  
This claim raised the question of the scope of the "results" of the on -the-spot investigation to be 
disclosed to the interested parties pursuan t to Article  6.7 of the Anti -Dumping  Agreement. 
The European  Union  argued that Article  6.7 requires that the "essential factual outcomes" of the 
on-the-spot investigations be disclosed. Indonesia responded that the European  Union  conflated 
the requirements  of Article  6.7 regarding the disclosure of the results of verification visits and of 
Article  6.9 regarding the disclosure of essential facts. Indonesia argued that these concepts are 
different, and that the results to be disclosed pursuant to Article  6.7 are not limited to the 
"essential" results of the verification visit.  
The Appellate  Body found that on -the-spot investigations are one mechanism that investigating 
authorities may employ in satisfying their duty, under Article  6.6 of the Anti -Dumping  Agree ment, 
to ensure the accuracy of information supplied by interested parties. When on -the-spot 
investigations are conducted, Article  6.7 requires that the firms subject to such visits be provided 
with the "results", or outcomes, of this verification process.  The Appellate  Body further held that 
the scope of the on -the-spot investigations and the ensuing results to be communicated to the 
investigated firms vary from case to case and are informed by the integral parts of the process of 
the on -the-spot investiga tions, which include the questions posed by the investigating authorities, 
the responses thereto, the scope of the advance notice, and the collection of any additional 
evidence during the on -the-spot investigations. Furthermore, t he Appellate  Body explaine d that 
the disclosure of the "results" of the on -the-spot investigation must enable the firms to which they 
are communicated to discern the information that the authorities considered to have been 
successfully verified, as well as the information that coul d not be verified, and to be informed of 
the results in sufficient detail and in such a timely manner so as to be placed in a position to 
defend effectively their interests in the remaining stages of the anti -dumping investigation.  
The Appellate  Body then turned to assess whether the Panel erred in its interpretation of 
Article  6.7 of the Anti -Dumping  Agreement . The Appellate  Body concluded that the Panel did not 
err in finding that investigating authorities should disclose the part of the questionnaire res ponse 
or other information supplied for which supporting evidence was requested, whether any further 
information was requested, and whether documents were co llected by the authorities. 
The Appellate  Body also considered that the "results" of the verificati on include whether the 
producer made available the evidence and additional information requested and whether the 
investigating authorities were or were not able to confirm the accuracy of the information supplied 
by the verified companies. The Appellate  Body clarified that, while  disclosure of this information 
will typically be required, additional information may need to be disclosed in some cases, and less 
information may suffice in others.  
With respect to the application of Article  6.7 in this dispute, the Appellate  Body noted the Panel's 
finding that the documents relating to the on -the-spot investigations provided by the 
EU authorities in this case were insufficient to allow PT Musim Mas to understand whether the 
EU authorities had  or had not been able to confirm the accuracy o f the information supplied. 
The Appellate  Body considered that the Panel had correctly assessed whether the documents 
provided to PT Musim Mas could have enabled it to understand whether the EU authorities had  or 
had not been able to confirm the accuracy of the information supplied. Consequently, the 
Appellate  Body upheld the Panel's finding that the EU authorities failed to make available or 
disclose the "results of any such investigations" to PT  Musim Mas, an d therefore acted 
inconsistently with Article  6.7 of the Anti -Dumping  Agreement . WT/AB/28  
 
- 44 - 
 
3.4.3   Expiration of the measure at issue – Articles  3 and 19 of the DSU  
The European  Union  requested the Appellate  Body to dismiss Indonesia's appeal in its entirety as 
inconsistent  with Article  3 of the DSU because it rel ated to an expired measure. 
The European  Union  explained that it sought a finding that the dispute had been resolved and that 
the relevant issues had therefore become moot. As a separate matter, the European  Union  
requested a finding by the Appellate  Body that the Panel had erred in making a recommendation 
pursuant to Article  19.1 of the DSU when the measure at issue had expired.  
Indonesia responded that the Appellate  Body's jurisdiction is governed by Article  17 of the DSU 
and that, pursuant to Article  17.12 of the DSU, the Appellate  Body shall address each of the issues 
raised in accordance with Article  17.6 of the DSU in appellate proceedings. Indonesia argued that 
the Appellate  Body would fail to comply with this duty if it were to decline to rule on Indonesia's 
appeal. Furthermore, with respect to the European  Union 's allegation that the Panel erred in 
making a recommendation even though the measure at issue had expired, Indonesia argued that 
the expiry of the mea sure at issue had occurred too late in the proceedings to be taken into 
account by the Panel. Therefore, the Panel did not err in making a recommendation with respect to 
the measure at issue.  
The Appellate  Body began by noting that it was uncontested by th e participants that the measure 
at issue expired in November 2016, following issuance of the final report to the parties but before 
circulation of the Panel Report to WTO Members. The Appellate  Body then recalled that appellate 
review is governed primarily  by Article  17 of the DSU. In particular, the Appellate  Body noted that 
Article  17.4 stipulates that the parties to the dispute may appeal a panel report, and that it does 
not impose limitations on parties' rights to appeal a panel report.  
The Appellate  Body reviewed various arguments raised by the European  Union  and noted that they 
reflected different permutations of the proposition that a dispute no longer exists after the 
withdrawal of the measure at issue. However, the Appellate  Body recalled that in pa st cases it had 
expressly rejected the proposition that the repeal of a measure necessarily constitutes a 
"satisfactory settlement of the matter", and noted that benefits accruing to a Member may be 
impaired by measures whose legislative basis has expired.  In addition, the Appellate  Body recalled 
that it had recognized the fact that a measure has expired is not dispositive of the question of 
whether a panel can address claims in respect of that measure. The Appellate  Body considered 
that the expiry of the m easure at issue did not, in itself , render it unnecessary for the 
Appellate  Body to rule on Indonesia's appeal. The Appellate  Body also pointed to the discretion 
enjoyed by panels to decide how to take into account subsequent modifications to, or the repea l 
of, the measure at issue, including the discretion to make findings with respect to an expired 
measure, or not. The Appellate  Body rejected a number of additional arguments made by the 
European  Union  based on various paragraphs of Article  3 of the DSU. T he Appellate  Body 
highlighted that, in its appeal, Indonesia did not request an interpre tation in the abstract. 
Rather,  Indonesia requested the reversal of the Panel's specific finding that the EU  authorities did 
not act inconsistently with Article  2.4 of the Anti -Dumping  Agreement . The Appellate  Body 
considered that, in seeking review of the Panel's interpretation of a specific provision of the 
covered agreements, Indonesia's appeal was no  different from other appeals brought bef ore 
the Appellate  Body. 
Ultimately, the Appellate  Body found that, in appealing the Panel Report notwithstanding the 
expiry of the measure at issue, Indonesia did not act inconsistently with Article  3 of the DSU. 
Accordingly, the Appellate  Body rejected the European  Union 's requests  to find it unnecessary to 
rule on the matter raised in Indonesia's appeal or to declare moot and of no legal effect all of the 
findings and conclusions made by the Panel.  
Turning to the question of whether the Panel erred in making a recommendation with r espect to an 
expired measure, the Appellate  Body noted that Article  19.1 of the DSU stipulates that panels and 
the Appellate  Body "shall recommend" that the Member concerned bring the measure into 
conformity with the covered agreements when they conclude t hat a measure is inconsistent with a 
covered agreement and attached significance to the fact that Article  19.1 i s expressed in 
mandatory terms.  WT/AB/28  
 
- 45 - 
 
At the same time, the Appellate  Body recalled that it had previously found that the expiry of the 
measure at iss ue may affect what recommendations  a panel may make. However, 
the Appellate  Body noted that prior cases differed from the present case in that the Panel in the 
present case made no finding on, or mention of, the expiry of the measure at issue in the 
Panel  Report. The Appellate  Body considered that, absent any fi nding or acknowledgement by 
the Panel that the measure at issue was no longer in force, there was no basis for the Panel to 
have departed from the requirement in Article  19.1 of the DSU to make a rec ommendation after 
having found that measure to be inconsistent with the covered agreements.  
Accordingly, the Appellate  Body concluded that the Panel did not err in making a recommendation 
pursuant to Article  19.1 of the DSU.  
3.4.4   Suspension of the work of the P anel – Article  12.12 of the DSU  
The European  Union  requested the Appellate  Body to reverse the  Panel's findings that: 
(i) the European  Union  had not demonstrated sufficiently that the correspondence sent by the 
Permanent Mission of Indonesia to the WTO Secretariat on 11 July 2013 constituted a request to 
suspend the work of the Panel in the sense of Article  12.12 of the DSU; (ii) the work of the Panel 
had not been suspended; and (iii) the authority for the establishment of this Panel had not lapsed.  
The Appellate  Body began by noting that the European  Union 's claim of error on appeal raised the 
question of whether panel proceedings may be suspended before panel composition has been 
completed. The Appellate  Body interpreted Article  12.12 in the context of the  DSU and concluded 
that a panel's work can be suspended pursuant to Article  12.12 only once the panel has 
been composed.  
The Appellate  Body noted that Article  12.12 does not further qualify or elaborate upon the word 
"panel". In particular, the provision does not refer to an "established" or "composed" panel. The 
first sentence of Article  12.12 does, however, identify both a request from the complaining party 
and the exercise of discretion by a panel in the form of a decision to suspend its work as conditions 
for the suspension of panel proceedings. The Appellate  Body also saw merit in the observation 
made by Indonesia and the United  States  that, in general, the articles of the DSU  proceed 
sequentially, from the initial phases of the dispute settlement process through to its final stages, 
and that, therefore, the word "panel" in any given provision must be interpreted taking into 
consideration the location of the provision within the overall sequen ce and structure of the DSU. 
In this vein, the Appellate  Body noted that Article  12.12 of the DSU relating to the suspension of 
panel proceedings comes after Article  8 relating to the composition of panels. The Appellate  Body 
concluded that the fact that Article  12.12 envisages that discretion be exercised, as well as the 
placement of Article  12.12 in the overall structure of the DSU, suggest s that only a composed 
panel can decide to suspend panel proceedings.  
Turning to t he Panel's analysis, the Appellate  Body noted that the Panel had not addressed the 
legal question of whether panel proceedings may be suspended before panel composition has been 
completed. Instead, the Panel had focused on the question of whether the Europ ean Union  had 
established that Indonesia's 13 July 2013 email requesting "to suspend the meeting" constituted a 
request to suspend the work of the Panel in the sense of Article  12.12 of the DSU. However, the 
Appellate  Body found that any request contained in the communication from Indonesia to the 
Panel could not have triggered the beginning of the 12 -month period provided for under 
Article  12.12 because no panel had been composed that could have taken a decision on a request 
for suspension.  
In light of the se considerations, the Appellate  Body considered that the first of the three findings 
made by the Panel was not pertinent to the question of whether the Panel's authority had lapsed. 
Thus, the Appellate  Body declared moot and of no legal effect the Panel's  first finding, namely, 
that the European  Union  had not demonstrated sufficiently that the correspondence sent by the 
Permanent Mission of Indonesia to the WTO Secretariat on 11 July 2013 constituted a request to 
suspend the work of the Panel in the sense of DSU Article  12.12.  
At the same time, the Appellate  Body explained that the Panel proceedings could not have been 
suspended at that point, because the Panel had not yet been composed. For this reason, the 
Appellate  Body considered that the Panel did not err in making its second and third findings, WT/AB/28  
 
- 46 - 
 
namely, that the Panel's work had not been suspended and that its authority had not lapsed, and 
consequently the Appellate  Body upheld  these findings.  
3.4.5   The Panel's treatment of certain information as BCI  
The European Union  argued that, with respect to five  paragraphs of its Report, the Panel acted 
inconsistently with Articles  10.1, 11, 12.1, and 12.7 of the DSU, as read together with 
paragraphs  1 and 9 of the Panel's BCI Procedures, by erroneously treating certain  information as 
BCI. The European  Union  also contended that the Panel consequently erred by redacting that 
information from its Report. The European  Union  alleged that the information was already in the 
public domain, and the Panel's BCI  Procedures preclud ed the Panel from treating as BCI 
information in the public domain.  
The European  Union 's appeal concerned five references in the Panel Report to information that the 
Panel had treated as BCI pertaining to details of the relationship between PT Musim Mas and  
ICOF-S. The Appellate  Body was of the view that, in light of the Panel's consideration of the 
appropriate e xtent of BCI protection based upon the partie s' interim review comments, 
the company -specific nature of the information, and the exp iry of the measure at issue, 
an examination of whether the Panel should have included the information in question in the 
circulated version of its Report was not necessary to secure a positiv e solution to this dispute. 
For these reasons, the Appellate  Body found it unnecessary to rule on whether the Panel 
erroneously designated certain information as BCI and consequently erred by redacting that 
information from the Panel Report.  
3.5  Appellate  Body  Report, Indonesia – Importation of Horticultural Products, Animals 
and Animal Products , WT/DS47 7/AB/R  and WT/DS478/AB/R  
This dispute  concerns 18 measures imposed by Indonesia on the importation of horticultural 
products as well as animals and animal products. These 18 measures comprise: (i)  discrete 
elements of Indonesia's import licensing regime for horticultural products (Measures  1 through  8); 
(ii) Indonesia's import licensing regime for horticultural products as a whole (Measure  9); 
(iii) discrete elements of Indonesia's import licensing regime for animals and animal products 
(Measures  10 through  16); (iv)  Indonesia's import licensi ng regime for animals and animal 
products as a whole (Measure  17); and (v)  the requirement whereby importation of horticultural 
products, animals , and animal products depends upon Indonesia's determination of the sufficiency 
of domestic supply to satisfy d omestic demand (Measure  18). 
These 18 measures were challenged as quantitative import restrictions on agricultural products by 
New Zealand and the United  States . Before the Panel, New Zealand and the United  States  claimed 
that the 18 measures imposed by In donesia are inconsistent with Article  XI:1 of the GATT 1994 
and Article  4.2 of the  Agreement  on Agriculture. Moreover, they c laimed that Measures 6, 14, 
and 15 are inconsistent with Article  III:4 of the GATT 1994. Finally, to the extent that these 
measures  are subject to the disciplines of the  Agreement  on Import Licensing Procedures 
(Import  Licensing  Agreement ), they claimed that Measures  1 and 11 are inconsistent with 
Article  3.2 of the Import Licensing  Agreement , or, alternatively, with Article  2.2 a) of  that 
Agreement . 
Indonesia requested the Panel to reject these claims in their entirety. In particular, Indonesia 
argued that the measures at issue are not inconsistent with Article  XI:1 of the GATT  1994 and 
Article  4.2 of the  Agreement  on Agriculture. In addition, Indonesia raised defences under 
Article  XX(a), (b), and (d) of the GATT 1994 with respect to the claims of violation under 
Articles  XI:1 and III:4 of the GATT 1994 and Article  4.2 of the  Agreement  on Agriculture. 
Indonesia also invoked Article  XI:2(c)(ii) of the GATT 1994 as a defence with respect to the claims 
of violation under Article  XI:1 concerning Measures  4, 7, and 16.  
As a preliminary matter, the Panel addressed the issue of the order of analysis of New  Zealand's 
and the United  States ' claims. The Panel noted that all 18 measures at issue had been challenged 
under Article  XI:1 of the GATT  1994 and Article  4.2 of the  Agreement on Agriculture, with 
New Zealand and the United  States  bringing identical claims under both provisions. The Panel 
considered that Article  XI:1 of the GATT 1994 is the provision that deals specifically with 
quantitative restrictions. The Panel further observed that Article  4.2 of the  Agreement  on WT/AB/28  
 
- 47 - 
 
Agriculture, on the contrary, has a broader scope and refers to measures ot her than quantitative 
restrictions. The Panel thus decided to commence its examination with the claims under 
Article  XI:1, rather than under Article  4.2. 
The Panel added that, if the measures were to be justified under Article  XX of the GATT 1994, 
it would  not need to analyse the claims under Article  4.2 of the  Agreement  on Agriculture. This is 
because the second part of footnote  1 to Article  4.2 excludes from the scope of this provision those 
measures maintained under other general, non -agriculture -specifi c provisions of the GATT  1994. 
In this context, the Panel noted Indonesia's argument that, because New Zealand and the 
United  States  had failed to provide evidence that the challenged measures are not justified under 
Article  XX, the Panel could not, as a m atter of law, rule in the co -complainants' favour under 
Article  4.2. The Panel, however, considered that it was for Indonesia to establish the defence 
under Article  XX of the GATT 1994.  
Turning to its analysis under Article  XI:1, the Panel addressed Indone sia's argument under 
Article  XI:2(c)(ii) of the GATT  1994 that this provision excludes Measures  4, 7, and 16 from the 
scope of Article  XI:1. The Panel disagreed with Indonesia and considered that Indonesia could not 
rely upon Article  XI:2(c)(ii) to exclude  Measures  4, 7, and 16 from the scope of Article  XI:1 
because, with respect to agricultural measures, Article  XI:2(c) has been rendered "inoperative" by 
Article  4.2 of the  Agreement  on Agriculture.  
The Panel then found that each of the 18 measures at issue is inconsistent with Article  XI:1 of the 
GATT  1994 because, by virtue of its design, architecture, and revealing structure, it constitutes 
either a restriction having a limiting effect on importati on or a prohibition on importation.  
Specifically, the Panel found t hat: 
a. Measures 1 through 7, 9, and 11 through 17 are inconsistent with Article  XI:1 because, 
by virtue of their design, architecture, and revealing structure, they constitute a 
restriction having a limiting effect on importation;  
b. Measures 8 and 10 are inconsistent with Article  XI:1 because, by virtue of their design, 
architecture, and revealing structure, they constitute a prohibition on importation; and  
c. Measure 18 is inconsistent as such  with Article  XI:1 because, by virtue of its design, 
architecture, and revealing structure, it constitutes a restriction having a limiting effect 
on importation.  
Having found that Indonesia's measures are inconsistent with Article  XI:1, the Panel addressed 
Indonesia's defences under Article  XX(a), (b), or (d) of the GATT 1994. The Panel found that 
Indonesia had failed to demonstrate that the 18 measures at issue are justified under Article  XX. 
Specifically, the Panel found that:  
a. Indonesia had failed to demonst rate that Measures  1, 2, and 3 are justified under 
Article  XX(d) of the GATT 1994;  
b. Indonesia had failed to demonstrate that Measure 4 is justified under Article  XX(b) of the 
GATT  1994;  
c. Indonesia had failed to demonstrate that Measures 5 and 6 are justified  under 
Article  XX(a), (b), and (d) of the GATT 1994;  
d. Indonesia had failed to demonstrate that Measure 7 is justified under Article  XX(b) of the 
GATT  1994;  
e. Indonesia had failed to demonstrate that Measure 8 is justified under Article  XX(b) of the 
GATT  1994;  and 
f. Indonesia has failed to demonstrate that Measures 9 through 18 are justified under 
Article  XX(a), (b), or (d) of the GATT  1994, where appropriate.  WT/AB/28  
 
- 48 - 
 
In light of these findings under Articles XI:1 and XX of the GATT 1994, the Panel exercised judicial 
economy under Article  4.2 of the  Agreement  on Agriculture. The Panel indeed declined to rule on 
the claims under Article  4.2 because it considered that its findings pertaining to the inconsistency 
of Measures 1 through 18 with Article  XI:1 and the absence of justification under Article  XX(a), 
(b), or (d) ensured the effecti ve resolution of this dispute.  
The Panel equally declined to rule on New  Zealand's claims under Article  III:4 of the GATT  1994 
and the co -complainants' claims under Article  3.2 of the Import  Licensing  Agreement  because its 
earlier findings in respect of the relevant measures ensure the effective resolution of this dispute. 
The Panel further declined to rule on the United  States ' claims under Article  III:4 of the GATT  1994 
and the co -complaina nts' claims under Article  2.2(a) of the Import Licensing  Agreement  because 
the United  States  and the co -complainants, respectively, had failed to make a prima facie  case. 
Indonesia filed its appeal on 17  February  2017, and raised four ma in claims of legal error by 
the Panel:  
a. First, Indonesia challenged the Panel's decision to commence its analysis with the claims 
under Article  XI:1 of the GATT  1994, rather than under Article  4.2 of the  Agreement  
on Agriculture.  
b. Second, Indonesia claimed that the Panel erred  in determining that Indonesia bears the 
burden of proof under the second part of footnote 1 to Article  4.2 of the  Agreement  
on Agriculture.  
c. Third, Indonesia submitted an alternative claim of legal er ror. Indonesia claimed that, 
if the Appellate  Body were to find that the Panel did not err by addressing the claims 
under Article  XI:1 of the GATT 1994, rather than the claims under Article  4.2 of the  
Agreement  on Agriculture, then the Panel erred in finding that Article  XI:2(c) of the 
GATT 1994 has been rendered "inoperative" by Article  4.2 of the  Agreement  
on Agriculture as far as agric ultural measures are concerned.  
d. Finally, Indonesia claimed that the Panel erred in finding that Indonesia had failed to 
demonstrate that Measures 9 through 17 are justifie d under Article  XX of the 
GATT  1994. In this context, Indonesia challenged the sequence of analysis applied by 
the Panel under Article  XX in respect of these measures.  
New Zealand and the United  States  did not appeal any of the Panel findings, and the 
Appellate Body addressed Indonesia's four sets of claims in turn in i ts Report. In so doing, 
the Appellate  Body also addressed Indonesia's related claims that the Panel committed errors 
under Article  11 of the DSU.  
3.5.1   The Panel's decision to commence its legal analysis with the claims under 
Article  XI:1 of the GATT 1994  
On appeal, Indonesia claimed that the Panel erred by deciding to commence its legal analysis with 
the claims raised under Article  XI:1 of the GATT 1994.  Indonesia argued that the Panel should 
have applied Article  21.1 of the  Agreement  on Agriculture to determine that Article  4.2 of 
that Agreement  was lex specialis , so that Article  4.2 should have been applied to the exclusion of 
Article  XI:1. According to  Indonesia, the Panel should have found that the  Agreement  on 
Agriculture prevails over the GATT  1994, because Article  XI:1 and Article  4.2 concern the same 
matter, and Article  4.2 contains provisions dealing specifically with the measures at issue from 
both a substantive and a procedural perspective. Indonesia thus requested the Appellate  Body to 
reverse the Panel's  decision to start its analysis with Article  XI:1 and the Panel's findings that the 
18 measures at issue are inconsistent with this provision.  
First, the Appellate  Body examined the relationship between Article  XI:1 of the GATT  1994 and 
Article  4.2 of the  Agreement  on Agriculture in light of Article  21.1 of the  Agreement  on Agriculture.  
Pursuant to Article  21.1 of the  Agreement  on Agriculture, "[t]he provisions of GATT 1994 and of 
other Multilateral Trade  Agreement s in Annex 1A to the WTO Agreement  shall apply subject to the 
provisions of [the  Agreement  on Agriculture]." The Appellate  Body noted Indonesia's argument WT/AB/28  
 
- 49 - 
 
that Article  21.1 does not require a "conflict", but means that the  Agreement  on Agriculture applies 
to the exclusion of the GATT 1994 to the extent that the  Agreement  on Agriculture contains 
provisions dealing specifically with the same matter. The Appellate  Body recalled its findings in 
EC – Export Subsidies on Sugar  and EC – Bananas III , in which it interpreted Article  21.1 to mean 
that the provisions of the  Agreement  on Agriculture prevail in the event of a "conflict" between 
provisions of the  Agreement  on Agricult ure and provisions of the GATT 1994 or other Multilateral 
Trade  Agreement s in Annex 1A. Therefore, in light of this jurisprudence, the Appellate  Body 
disagreed with Indonesia's interpretation of Article  21.1.  
The Appellate  Body assessed next whether Article XI:1 of the GATT 1994 and Article  4.2 of 
the Agreement  on Agriculture are in conflict. Although Article  4.2 generally applies to a broader 
range of measures and a narrower scope of products than Article  XI:1, the Appellate  Body 
observed that both provis ions prohibit Members from maintaining quantitative import restrictions 
on agricultural products. The Appellate  Body further observed that a measure constituting a 
quantitative import restriction on agricultural products would be inconsistent with both Article XI:1 
and Article  4.2; and that such findings of inconsistency would result in the same implementation 
obligations under either provision, that is, to bring the measure into conformity with those 
provisions.  
The Appellate  Body concluded that, to the e xtent that they apply to the claims challenging the 18 
measures at issue as quantitative restrictions, Article  XI:1 of the GATT  1994 and Article  4.2 of 
the Agreement  on Agriculture contain the same substantive obligations, namely, the obligation not 
to mai ntain quantitative import restrictions on agricultural products. In other words, had the Panel 
decided to commence its analysis with Article  4.2 rather than Article  XI:1, it would have, in 
essence, conducted the same analysis to determine whether the 18 me asures at issue are 
"quantitative import restrictions" within the meaning of Article  4.2. Referring to its conclusion 
regarding Indonesia's second claim on appeal, the Appellate  Body added that Article  XI:1 and 
Article  4.2 are subject to the same exception s under Article  XX of the GATT  1994, and the same 
burden of proof applies under Article  XX, regardless of whether it is invoked in relation to 
Article  XI:1 or Article  4.2.  
On this basis, the Appellate  Body considered that Article  4.2 of the  Agreement  on Agriculture does 
not apply to the exclusion of Article  XI:1 of the GATT 1994 in relation to the claims challenging the 
18 measures at issue as quantitative restrictions. Rather, both provisions contain the same 
substantive obligations in relation to th ese claims and, thus, in these circumstances, they apply 
cumulatively.  
Second, the Appellate  Body examined whether the Panel should have followed a mandatory 
sequence of analysis between Article  4.2 and Article  XI:1. As recalled above, the Panel decided t o 
begin its analysis under Article  XI:1, because it considered that Article  XI:1 is more specific with 
respect to quantitative restrictions than Article  4.2. Referring to its reports in Canada  – Wheat 
Exports and Grain Imports  and Canada  – Renewable Energy  / Canada – Feed-in Tariff Program,  
the Appellate  Body considered that the Panel may have been required to follow a particular 
sequence if, for instance, addressing Article  4.2 first would have led to a different substantive 
outcome than commencing the ana lysis with Article  XI:1.  
Having recalled that the obligations of Article  XI:1 of the GATT  1994 and Article  4.2 of 
the Agreement  on Agriculture are substantively and procedurally the same insofar as they apply to 
the measures at issue, the Appellate  Body considered that the analysis that the Panel would have 
conducted under Article  4.2 as to whether the measures at issue are prohibited quantitative import 
restrictions is the same as the analysis that the Panel had conducted under Article  XI:1 of the 
GATT  1994. The Appellate  Body specified that, had the Panel commenced its analysis with 
Article  4.2, it would have equally examined whether the measures are justified under Article  XX of 
the GATT 1994, as provided for in footnote 1 to Article  4.2, and reached the  same conclusions 
under Article  XX. Furthermore, had the Panel commenced its analysis with Article  4.2 and found 
that the measures at issue are inconsistent with that provision and not justified under Article  XX of 
the GATT 1994, it could have equally chos en to exercise judicial economy with respect to the 
claims under Article  XI:1. The Appellate  Body therefore considered that commencing the analysis 
with Article  XI:1 rather than with Article  4.2 had no repercu ssions for the substance of 
the analysis.  WT/AB/28  
 
- 50 - 
 
In addition, while the Appellate  Body noted Indonesia's argument that the Panel should have 
concluded that Article  4.2 applies more specifically to agricultural products, it considered that 
reaching a conclusion as to the relative specificity of either Article  XI:1 or Article  4.2 would not be 
determinative for resolving the dispute. The Appellate  Body concluded that there is no mandatory 
sequence of analysis between Article  4.2 and Article  XI:1 in this dispute. Rather, the decision as to 
whether to commence the  analysis with the claims under Article  XI:1 or those under Article  4.2 
was within the Panel's margin of discretion.  
Third, turning to Indonesia's claim that the Panel acted inconsistently with Article  11 of the DSU 
because it failed to make an objective assessment of the applicability of Article  4.2 of 
the Agreement  on Agriculture, the Appellate  Body noted that Indonesia essentially reiterated some 
of the arguments it presented in support of its substantive claim. According to the Appellate  Body, 
Indonesia hence failed to present any arguments under Article  11 of the DSU that were separate 
from the ones it had submitted in support of its substantive claim. The Appellate  Body therefore 
rejected Indonesia's claim under Article  11 of the DSU.  
In light of the foregoing, the Appellate  Body upheld the Panel's dec ision, in paragraph 7.33 of 
the Panel Report, to commence its examination with Article  XI:1 of the GATT 1994.  
3.5.2   Whether the Panel erred in determining that Indonesia bears the burden of proof 
under the second part of footnote 1 to Article  4.2 of the  Agreement  on Agriculture  
The Appellate  Body next addressed Indonesia's claim on appeal regarding the burden of proof 
under the second part of footnote 1 to Article  4.2 of the  Agreement  on Agriculture.  
Before turning to the substance of Indonesia's claim, the Appellate  Body noted that New  Zealand 
and the United  States  submitted that, if the Appellate  Body were to uphold the Panel's findings 
under Article  XI:1 of the GATT 1994, it need not make a finding with respect to the issue of the 
burden of proof under Article  4.2 of the  Agreement  on Agriculture for the purpose of resolving the 
present dispute. Nevertheless, the Appellate  Body decided to address this issue, stating that it is 
intertwined with the iss ue of the order of analysis of the claims under Article  XI:1 and Article  4.2 
and their dispositions. According to the Appellate  Body, if there is a difference between Article  XI:1 
and Article  4.2 in terms of the burden of proof with respect to Article  XX of the GATT 1994, the 
Appellate  Body would then be required to assess further whether such a difference amounts to a 
"conflict" within the meaning of Article  21.1 of the  Agreement  on Agriculture in order to determine 
whether the Panel erred in applying Article XI:1, and not Article  4.2, to the challenged measures. 
The Appellate  Body further noted that, if there is such a difference between Article  XI:1 and 
Article  4.2, the Appellate  Body would also be required to assess whether starting the analysis with 
Article XI:1, rather than with Article  4.2, resulted in a failure to structure the analysis in the proper 
logical sequence that had repercussions for the substance of the analysis itself.  
As regards the substance of Indonesia's claim, Indonesia submitted that  the burden of proof under 
Article  XX of the GATT 1994 must shift to the complainant in the context of Article  4.2 of 
the Agreement  on Agriculture. Indonesia noted that, while the first part of footnote 1 to Article  4.2 
describes the type of measures that are subject to the obligation under Article  4.2, the second part 
of footnote 1 provides that measures maintained under "general, non -agriculture -specific 
provisions of GATT  1994", including Article  XX, are not inconsistent with Article  4.2. Accordingly, 
in Indonesia's view, a party presenting a claim under Article  4.2 is required to establish that the 
measure falls within the "scope" of this provision by addressing both the first and second parts of 
footnote 1 to Article  4.2. 
The Appellate  Body first recalled that Article  4.2 prohibits Members from maintaining, resorting to, 
or reverting to "measures of the kind which have been required to be converted into ordinary 
customs duties". Footnote 1 to Article  4.2 in turn provides  that:  
[t]hese measu res include quantitative import restrictions, variable import levies, 
minimum import prices, discretionary import licensing, non -tariff measures 
maintained through state -trading enterprises, voluntary export restraints, and similar 
border measures other th an ordinary customs duties … but not measures maintained 
under balance -of-payments provisions or under other general, non -agriculture -specific WT/AB/28  
 
- 51 - 
 
provisions of GATT 1994 or of the other Multilateral Trade  Agreement s in Annex 1A to 
the WTO Agreement . 
The Appel late Body observed that the first part of footnote 1 contains an "illustrative list" of the 
categories of measures prohibited under Article  4.2 and that the second part provides that certain 
other measures are not included. The Appellate  Body further obser ved that Article  XX of the 
GATT  1994 is one of the "other general, non -agriculture -specific provisions of GATT 1994" referred 
to in the second part of footnote 1.  
The Appellate  Body then recalled the general principle expressed in US – Wool Shirts and Blo uses 
that "the burden of proof rests upon the party, whether complaining or defending, who asserts the 
affirmative of a particular claim or defence". The Appellate  Body also noted that it has been well 
established through WTO jurisprudence that Article  XX of the GATT 1994 is an affirmative defence, 
with respect to which the respondent bears the burden of establishing a prima facie  case. On this 
basis, the Appellate  Body proceeded to assess whether the allocation of the burden of proof as it 
applies under Article XX is changed by virtue of the incorporation of this provision into Article  4.2 
through the reference contained in the second part of footnote 1 to Article  4.2. 
The Appellate  Body observed that Article  4.2 of the  Agreement  on Agriculture and footnote  1 
thereto do not contain any express indication that Article  XX of the GATT 1994 is no longer an 
affirmative defence when it is applied through the reference in the  second part of footnote 1. 
Nor does Article  4.2 or footnote 1 expressly provide that the c omplainant bringing a claim under 
this provision must establish that the challenged measure is not maintained under Article  XX or 
under any of the other "provisions" referred to in the  second part of footnote 1. 
The Appellate  Body noted in particular that,  while the phrase "but not" in the second part of 
footnote 1 makes clear that "measures" prohibited under Article  4.2 do not include measures 
maintained under one of the "provisions" mentioned in the second part of footnote 1, this phrase is 
neutral as to the allocation of the burden of proof under these "provisions", including under 
Article  XX. 
The Appellate  Body noted Indonesia's argument that a party presenting a claim under Article  4.2 is 
required to establish that the measure falls within the "scope" o f this provision by addressing both 
the first and second parts of footnote 1. The Appellate  Body disagreed with Indonesia, stating that 
the characterization of a particular provision as a "derogation limiting the scope" does not 
pre-determine the question as to which party bears the burden of proof with regard to the 
requirements stipulated in the provision. The Appellate  Body also disagreed with Indonesia that  
the absence of explicit language such as "exceptions" or "exemptions" in Article  4.2 supports the 
conclusion that Article  XX cannot be an "exception" in the context of Article  4.2. 
In light of the above, the Appellate  Body considered that there is no textual basis for the 
proposition that the burden of proof under Article  XX of the GAT T 1994 is shifted to the 
complainant by virtue of the incorporation of this provision into the second part of footnote 1 to 
Article  4.2 of the  Agreement  on Agriculture. Rather, in the Appellate  Body's view, given that 
footnote 1 to Article  4.2 incorporates  Article  XX by reference without modifying the nature of this 
provision as an affirmative defence, it would follow that the burden of proof under Article  XX 
remains with the respondent in the context of Article  4.2. The Appellate  Body considered this 
interpretation to be consistent with the general principle that the burden of proof rests upon the 
party who asserts the affirmative  of a particular claim or defence, because it is the respondent who 
benefits from a showing that the measure additionally  satisfi es the requirements of Article  XX and 
therefore is not prohibited under Article  4.2. 
The Appellate  Body also recalled that in US – Clove Cigarettes  it had found in the context of 
Article  2.12 of the  Agreement  on Technical Barriers to Trade ( TBT Agreement ) that the burden of 
proof in respect of a particular provision should be assessed in light of the overarching logic and 
function of that provision. The Appellate  Body considered that the overarching logic and function of 
Article  XX of the GATT 1994 of strik ing a balance between Members' obligations and rights remain 
the same in the context of Article  4.2 of the  Agreement  on Agriculture, in that Article  XX 
recognizes Members' rights to pursue certain legitimate policy objectives as juxtaposed to their 
obligat ions under Article  4.2 to liberalize trade by converting certain market access barriers into 
ordinary customs duties.  WT/AB/28  
 
- 52 - 
 
Finally, the Appellate  Body addressed Indonesia's argument that the allocation of the burden of 
proof under Article  XX of the GATT 1994 re ferred to in the second part of footnote 1 to Article  4.2 
of the  Agreement  on Agriculture should be informed by certain other provisions of the covered 
agreements, including Articles 2.2 and 2.4 of the TBT  Agreement . According to Indonesia, these 
provision s convert exceptions under Article  XX into positive obligations, thereby shifting the 
burden of proof to the complainant. The Appellate  Body disagreed with Indonesia that Articles 2.2 
and 2.4 provide relevant context for examining the allocation of the bur den of proof under 
Article  XX referred to in footnote 1 to Article  4.2. The Appellate  Body stated that there is no textual 
basis to characterize Article  2.2 or Article  2.4 as converting exceptions under Article  XX into 
positive obligations, as neither of t hese provisions contains a specific reference to Article  XX. 
In addition, the Appellate  Body observed that Article  2.2 is dissimilar to the second part of 
footnote 1 to Article  4.2 because, while Article  2.2 is a positive rule establishing an obligation in 
itself, the function of the second part of footnote 1 is to exempt  certain measures from the 
prohibition of certain market access barriers. The Appellate  Body also disagreed that Article  2.4 is 
similar to the s econd part of footnote 1 to Article  4.2, stating that, unlike the second part of 
footnote 1, Article  2.4 recognizes an "autonomous right" of a  Member to set its own level 
of protection.  
Having concluded that Indonesia had failed to demonstrate that th e bur den of proof under 
Article  XX of the GATT 1994 is modified in the context of Article  4.2 of the  Agreement  on 
Agriculture, the Appellate  Body turned to Indonesia's related claim on appeal that the Panel had 
acted inconsistently with Article  11 of the DSU be cause it had failed to make an objective 
assessment of which party bears the burden of proof with respect to the second element of 
footnote 1 to Article  4.2. The Appellate  Body rejected Indonesia's claim, stating that Indonesia had 
not put forward specific  arguments in support of its claim under Article  11 that were different from 
the arguments in support its claim under Article  4.2 and footnote 1 thereto.  
In light of the foregoing, the Appellate  Body upheld the Panel's finding, in paragraph 7.34 of the 
Panel Report, that the burden of proof under Article  XX of the GATT 1994 referred to in the second 
part of footnote 1 to Article  4.2 of the  Agreement  on Agriculture rests on Indonesia.  
3.5.3   Indonesia's alter native claim that the Panel erred in finding that Article  XI:2(c) of 
the GATT 1994 has been rendered "inoperative" by Article  4.2 of the  Agreement  
on Agriculture  
Next, the Appellate  Body addressed Indonesia's alternative claim on appeal that, if the 
Appell ate Body were to find that the Panel did not err by addressing the claims under Article  XI:1 
of the GATT 1994, rather than the claims under Article  4.2 of the  Agreement  on Agriculture, then 
the Panel erred in finding that Indonesia cannot invoke Article  XI:2(c)(ii) of the GATT 1994 to 
exclude Measures 4, 7, and 16 from the scope of Article  XI:1 because Article  XI:2(c) has been 
rendered "inoperative" with respect to agricultural measures by Article  4.2. 
The Appellate  Body first addressed the preliminary issue raised by the  United  States  that the 
Appellate  Body need not reach a finding with respect to Ind onesia's alternative claim. 
The United  States  argued that making findings on the interpretation of Article  XI:2(c) of the  
GATT  1994 is not necessary to resolve the present dispute because Indonesia had not requested 
completion of the legal analysis, and Indonesia had not even attempted to establish before the 
Panel that its measures are maintained under Article  XI:2(c)(ii). The Appellate  Body observed that 
Indonesia's appeal concerning the legal status of Article  XI:2(c) falls within the scope of appellate 
review stipulated in Articles 17.6 and 17.12 of the DSU. The Appellate  Body further stated that, 
while its ruling on Article XI:2(c) may not directly change the recommendations and rulings by the 
DSB with respect to Article  XI:1 of the GATT 1994, the question as to whether Indonesia can in the 
future invoke Article  XI:2(c)(ii) to justify or exempt any compliance measure take n with respect to 
Measures  4, 7, and 16 could affect the manner in which it can comply with the recommendations 
and rulings by the DSB. On this basis, the Appellate  Body decided to address the substance of 
Indonesia's alternative claim.  
The Appellate  Body began its analysis by recalling the Panel's finding. The Panel considered that, 
while the second part of footnote 1 to Article  4.2 of the  Agreement  on Agriculture exempts 
measures maintained under "general, non -agriculture -specific provisions of GATT 1994"  from the 
prohibition of quantitative import restrictions under Article  4.2, measures maintained under 
Article  XI:2(c) of the GATT 1994 are not exempted because it is an agriculture -specific  provision. WT/AB/28  
 
- 53 - 
 
On this basis, the Panel found that Article  XI:2(c) ha s been rendered "inoperative" with respect to 
agricultural measures because, by virtue of Article  21.1 of the  Agreement  on Agriculture, the 
provisions of the GATT 1994, including Article  XI:2(c), "shall apply subject to" the provisions of 
that Agreement , including Article  4.2. On appeal, Indonesia argued that the Panel's interpretation 
of Article  XI:2(c) is in error because the Panel should have focused on the first part of footnote 1 
rather than its second  part in reaching its conclusion as to the applicab ility of Article  XI:2(c). 
Indonesia asserted in particular that Article  XI:2(c) informs the term "quantitative import 
restrictions" in the first part of footnote 1 to Article  4.2, such that agricultural measures that 
satisfy the requirements of Article  XI:2(c) are not "quantitative import restrictions" within the 
meaning of the first part of footnote 1. Thus, in Indonesia's view, the prohibition of quantitative 
import restrictions under Article  4.2 does not conflict with the permission of certain import 
restrictions under Article  XI:2(c).  
The Appellate  Body observed that, while the term "quantitative import restrictions" in the first part 
of footnote 1 to Article  4.2 of the  Agreement  on Agriculture is not defined in that  Agreement , a 
plain reading of this term suggests that it refers to any restriction on the importation of an 
agricultural product that is related to its quantity. The Appellate  Body further recalled that 
Article  XI:1 "lays down a general obligation to eliminate quan titative restrictions". Paragraph 2 of 
Article  XI, in turn, provides that "[t]he provisions of paragraph 1 of this Article  shall not extend to" 
the types of measures stipulated in subparagraphs  2(a) to 2(c). As relevant in this appeal, 
Article  XI:2(c)(ii) exempts from the obligation under Article  XI:1 those import restrictions on 
agricultural and fisheries products that are necessary to the enforcement of certain governmental 
measures that operate to remove a temporary surplus of certain domestic products.  
The Appellate  Body noted that Article  4.2 of the  Agreement  on Agriculture and Article  XI:1 of the 
GATT 1994 contain essentially the same prohibitions of quantitative restrictions  as far as the 
importation of agricultural products is concerned. The Appellat e Body thus agreed that the term 
"quantitative import restrictions" in the first part of footnote 1 to Article  4.2 should be interpreted 
in light of the prohibition of quantitative restrictions under Article  XI:1. With respect to the 
relationship between Article 4.2 and Article  XI:2(c), however, the Appellate  Body observed that 
there is no express language in Article  XI or Article  4.2 that suggests that the derogations under 
Article  XI:2(c) are relevant not only to the prohibition under Article  XI:1 but als o to the prohibition 
under Article  4.2. In particular, the Appellate  Body noted that, while the second part of footnote  1 
provides that "measures" prohibited under Article  4.2 do not include measures maintained under 
"general, non -agriculture -specific prov isions of GATT 1994", Article  XI:2(c) does not qualify as a 
"general, non -agriculture -specific provision[]" because its application is limited to agricultural  and 
fisheries products in express terms.  
The Appellate  Body also noted that, while Article  XI:2 o f the GATT 1994 provides that the 
obligation under Article  XI:1 shall not extend to "[i]mport restrictions" mentioned in 
subparagraph  2(c), these "[i]mport restrictions" are not disqualified from being quantitative 
restrictions . The Appellate  Body consider ed that, because the word "quantitative" in the title of 
Article  XI informs the interpretation of the words "prohibitions" and "restrictions" in both 
Article  XI:1 and Article  XI:2, the reference to "[i]mport restrictions" in Article  XI:2(c) is clearly a 
reference to a certain specified class of measures that fall within quantitative (import) restrictions , 
but are exempted from the prohibition  under Article  XI:1. In the Appellate  Body's view, this 
confirms  the interpretation that the term "quantitative import restrictions" in footnote 1 to 
Article  4.2 of the  Agreement  on Agriculture is broad enough to encompass both quantitative 
(import) restrictions falling under Article  XI:1 and "[i]mport restrictions" re ferred to in 
Article  XI:2(c).  
In light of the foregoing, the Appellate  Body rejected Indonesia's interpretation that measures 
maintained under Article  XI:2(c) of the GATT 1994 are not "quantitative import restrictions" within 
the meaning of the first part of footnote 1 to Article  4.2 of the  Agreement  on Agriculture. 
The Appellate  Body then recalled that the second part of footnote 1 excludes agriculture -specific 
exceptions such as Article  XI:2(c) from measures that are not prohibited under Article  4.2 and t hat 
accordingly the "prohibition" in Article  4.2 is in conflict with the "permission" under Article  XI:2(c). 
The Appellate  Body thus found that, by virtue of Article  21.1 of the  Agreement  on Agriculture, 
which provides that the provisions of the GATT 1994 "shall apply subject to" those of 
the Agreement  on Agriculture, Article  XI:2(c) cannot be applied to justify or exempt measures that 
fall within the prohibition of quantitative import restriction under Article  4.2, because t here is a 
conflict between Article XI:2(c) and Article  4.2. WT/AB/28  
 
- 54 - 
 
The Appellate  Body further noted that, by stating that "Indonesia cannot rely upon 
Article  XI:2(c)(ii) of the GATT 1994 to exclude Measures 4, 7 and 16 from the scope of 
Article  XI:1" in paragraph 7.60 of its Report,  the Panel had considered that Indonesia cannot rely 
on Article  XI:2(c) not only with respect to the co -complainants' claims under Article  4.2 of 
the Agreement  on Agriculture, but also with respect to their claims under Article  XI:1 of the 
GATT  1994. In this r egard, the Appellate  Body pointed to the fact that Indonesia had not 
demonstrated that Measures 4, 7, and 16 satisfy all the elements of Article  XI:2(c)(ii), and thus 
the Panel's findings of inconsistency of these measures with Article  XI:1 would remain 
undisturbed. The Appellate  Body further observed that t he Panel's findings that Measure s 4, 7, 
and 16 are quantitative restrictions  on the importation of agricultural products inconsistent with 
Article  XI:1 would, without requiring much more, lead to the con clusion that these measures also 
fall within the prohibition of quantitative import restrictions under Article  4.2. The Appellate  Body 
considered that, under these circumstances, Indonesia cannot maintain, resort to, or revert to 
Measures 4, 7, or 16  regar dless of whether Article  XI:2(c) is being invoked in relation to 
Article  XI:1 or Article  4.2. The Appellate  Body thus concluded that its finding that Indonesia cannot 
rely on Article  XI:2(c) to justify or exempt its measures with respect to the prohibition  of 
quantitative import restrictions under Article  4.2 would provide sufficient guidance for the purpose 
of resolving the present dispute, including in relation to the implementation by Indonesia of the 
recommendations and rulings by the DSB.  
Accordingly, the Appellate  Body upheld the Panel's finding, in paragraph 7.60 of the Panel Report, 
to the extent that it stated that, by virtue of Article  21.1 of the  Agreement  on Agriculture, 
Article  XI:2(c) of the GATT 1994 cannot be relied upon to justify or exempt measures falling within 
the prohibition of quantitative import restrictions under Article  4.2 of the  Agreement  
on Agriculture.  
3.5.4   Indonesia's claim under Article  XX of the GATT 1994  
Finally, the Appellate  Body addressed Indonesia's claim that the Panel erred in finding that 
Indonesia had failed to demonstrate that Measures 9 through 17 are justified under Article  XX of 
the GATT  1994. Indonesia challenged the sequence of analysis applied by the Panel under 
Article  XX in respect of these measures because the Panel assessed these measures only under the 
chapeau of Article  XX, without first examining whether these measures were provisionally justified 
under the relevant paragraphs of Article  XX. Indonesia claimed that Article  XX sets out a 
"mandatory" sequence of analysis, requiring panels to assess first, whether the measure at issue is 
provisionally justified under the relevant paragraphs of Article  XX and, second, whether the 
provisionally justified measure complies with the requirements of the chapeau  of Article  XX.  
The Appellate  Body first recalled the relevant Panel's findings and conclusions. As the 
Appellate  Body observed, the Panel assessed Measures 1 through 8 individually under the relevant 
paragraphs of Article XX and concluded that each of these measures is not provisionally justified 
under Article  XX(a), (b), or (d). By contrast to its findings with respect to Measures 1 through 7, 
the Panel found that there is a relationship between Measure 8 and the prote ction of one of the 
objectives protected under Article  XX, but that Measure 8 is not necessary to protect that 
objective. Unlike for Measures 1 through 7, the Panel considered that its finding that Measure 8 is 
not provisionally justified could be appealed . The Panel thus decided to assume arguendo  that 
Measure  8 is provisionally justified and to examine whether this measure is applied in a manner 
consistent with the chapeau  of Article  XX. As the Appellate  Body further observed, rather than 
focusing exclusi vely on Measure  8 in its analysis under  the chapeau , the Panel in fact addressed 
Measures 1 through 17 under the chapeau of Article  XX. The Panel found that Indonesia had failed 
to demonstrate that its import licensing regimes for horticultural products an d animals and animal 
products as a whole, and the individual measures therein (i.e. Measures 1 through 17) , are applied 
in a manner consistent with the chapeau  of Article  XX. In light of this finding, and without having 
assessed Measures 9 through 17 under  the relevant paragraphs of Article  XX, the Panel found that 
Indonesia had failed to demonstrate that Measures  9 through  17 are justified under Articles XX(a), 
(b), or (d), as appropriate.  
As the Appellate  Body summarized, whereas the Panel assessed first  whether Measures  1 
through  8 are provisionally justified under Article  XX(a), (b), or (d), the Panel assessed Measures  9 
through  17 only under the chapeau  of Article  XX, and, on this sole basis, dismissed Indonesia's 
defences in respect of these measures.  WT/AB/28  
 
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The Appellate  Body started its analysis by recalling that Members can resort to Article  XX as an 
exception to justify measures that would otherwise be inconsistent with GATT obligations. It then 
observed that Article  XX is made up of two main parts:  (i) ten paragraphs, which enumerate the 
various categories of governmental acts, laws, or regulations that WTO Members may carry out or 
promulgate in pursuit of differing legitimate state policies or interests outside the realm of trade 
liberalization; and (ii)  the chapeau , which imposes additional disciplines on measures that have 
been found to be provisionally justified under one of the paragraphs of Article  XX. 
The Appellate  Body recalled that the function of the chapeau of Article  XX is to prevent abuse of 
the exceptions specified in the paragraphs of that provision, and to ensure that a balance is struck 
between the right of a Member to invoke an exception under Article  XX and the substantive rights 
of other Members under the GATT  1994.  
Based on the relation ship between the chapeau of Article  XX and the paragraphs  thereof, the 
Appellate  Body considered that Article  XX sets out a two -tier test, involving, first, an assessment 
of whether the measure falls under at least one  of the ten  exceptions listed in the p aragraphs of 
Article  XX, and, second, an assessment of whether the measure satisfies the requirements of the 
chapeau of that provision.  According to the Appellate  Body, this sequence reflects the fact that 
considering first the measure at issue under the applicable paragraphs of Article  XX provides 
panels with the necessary tools to assess that measure under the chapeau of Article  XX. 
In particular, the Appellate  Body recalled that, in the analysis under the applicable paragraph, 
panels determine whether the objective of the measure at issue is one that is protected under the 
paragraphs of Article  XX: if the measure is found to be provision ally justified under one of 
the paragraphs of Article  XX, that objective is then relevant in assessing the measure under the 
chapeau . Moreover, the Appellate  Body considered that other elements of the analysis under the 
applicable paragraphs of Article  XX might be relevant in assessing a measure under the chapeau .  
In support of its interpretation, the Appellate  Body recalled that it had set out the sequence of 
analysis under Article  XX in a number of previous reports. Moreover, the Appellate  Body recalled 
its finding in US – Shrimp  that this sequence "reflects, not inadvertence or random choice, but 
rather the fundamental structure and logic of Article  XX". The Appellate  Body also recalled that it 
had previously recognized, in Brazil – Retreaded Tyres and EC – Seal Products , that the obj ective 
that is found to justify provisionally the measure at issue under a paragraph of Article  XX is a 
relevant consideration to assess whether there is "arbitrary or unjustifiable discrimination between 
countries where the same conditions prevail" pursua nt to the chapeau of Article  XX.  
The Appellate  Body accepted that, depending on the particular circumstances of the case at hand, 
including the way in which the defence is presented, a panel might be able to identify and analyse 
the elements under the app licable paragraphs of Article  XX that are relevant to assess the 
requirements of the chapeau  even when the sequence of analysis under Article  XX has not been 
followed. Therefore, as the Appellate  Body further considered, depending on the particular 
circums tances of the case, a panel that deviates from the sequence of analysis under Article  XX 
might not necessarily, for that reason alone, commit a reversible legal error provided the panel 
has made findings on those elements under the applicable paragraphs th at are relevant for its 
analysis of the requirements of  the chapeau . However, the Appellate  Body stressed the importance 
of following the normal sequence of analysis under Article  XX. In particular, it considered that the 
task of assessing a particular mea sure under the chapeau  so as to prevent the abuse of the 
exceptions provided for in Article  XX is rendered difficult where the panel has not first identified 
and examined the specific exception at issue. The Appellate  Body reiterated that following the 
normal sequence of analysis under Article  XX provides panels with the necessary tools to assess 
the requirements of the chapeau in respect of a particular measure. Moreover, it considered that a 
finding that a Member has failed to comply with the requirements of the applicable paragraph of 
Article  XX may not have the same implications regarding implementation as compared to a findi ng 
that a Member has failed to comply with the requirements of the chapeau .  
Having made these observations, the Appellate  Body noted Indonesia's contention that it would 
not be possible to complete the legal analysis to determine whether Measures 9 throug h 17 are in 
fact justified. The Appellate  Body further noted that, even if it was to accede to Indonesia's 
request on appeal and reverse the Panel's findings and conclusions under Article  XX in respect of 
Measures 9 through  17 without completing the legal analysis, the Panel's findings that these 
measures are inconsistent with Article  XI:1 of the GATT  1994 would remain undisturbed.  WT/AB/28  
 
- 56 - 
 
For this reason, the Appellate  Body considered that a ruling on Indonesia's claim under Article  XX 
is unnecessary for the purp oses of resolving this dispute. Therefore, the Appellate  Body declined to 
rule on Indonesia's claim and declared the Panel's finding that Indonesia had failed to demonstrate 
that Measures  9 through  17 are justified under Articles  XX(a), ( b), or (d) of the GATT  1994, 
as appropriate, in paragraph 7.830 of the Panel Report, moot and of no legal effect.  WT/AB/28  
 
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4  PARTICIPANTS AND THI RD PARTICIPANTS IN A PPEALS  
A total of 22 WTO Members participated  at least once as appellant, other appellant, appellee, or 
third participa nt in appeals for which an Appellate  Body report was circulated in 201 7. 6 Members 
participated at least once as the main participants, and 20 Members part icipated, at least once, 
as third participants.  
As of the end of 201 7, 77 of the 164 WTO Members had participated in appeals in which 
Appellate  Body reports were circulated between 1996 and 201 7. Further information on the 
participation of WTO Members in appeals is provided in Annex 9. WT/AB/28  
 
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5  PROCEDURAL ISSUES AR ISING IN APPEALS  
This section summarizes the procedural issues that were addressed in the Appellate  Body reports 
circulated in 2017.  
5.1  Treatment of confidential information  
In EU – Fatty Alcohols  (Indonesia) , Indonesia requested the Appellate  Body Division hearing the 
appeal  to adopt specific modalities for the treatment of certain information designated as business 
confidential information (BCI). Indonesia expressed the view that the requested modalities are 
provided for under Article  18.2 of the DSU. The European  Union  indicated that it shared 
Indonesia's understanding of Article  18.2 of the DSU.  
The Division informed the participants that it did not share their understanding of Article  18.2 of 
the DSU. The Division explained that, to the extent that the participants wanted  the Division to 
undertake specific procedural steps not expressly contemplat ed under the DSU or the 
Working  Procedures, they needed to request the specific treatment sought and explain why the 
information in question warranted special and additional prote ction.  
Subsequently, Indonesia addressed a letter to the Division making two requests. First, Indonesia 
requested the Division to adopt, pursuant to Rule 16(1) of the Working Procedures, additional 
procedures for the protection of BCI in the respective ap pellate proceedings. Second, Indonesia 
requested leave to modify the executive summaries of its appellant's submission by replacing 
certain information enclosed within double brackets of that executive summary with 
non-confidential information. Having rece ived no objections from the European  Union  and the third 
participants, the Division issued a Procedural Ruling informing the participants of the decision to 
accord additional protection, on specified terms, to the following information in the respective 
appellate proceedings: (i) the information marked by the participants as BCI and enclosed within 
double brackets in their submissions to the Appellate  Body; and (ii) the information designated by 
the Panel as BCI in its Report and in the Panel record. In add ition, the Division accepted 
Indonesia's request for leave to amend the executive summary of its appellant's submissions.  
In US – Anti-Dumping Methodologies (China) , the Appellate  Body noted that it had not received 
any request to adopt additional working  procedures for the protection of BCI. At the oral hearing, 
the Presiding Member of the Division noted that, while the Panel record contained BCI, under the 
circumstances, the Division would assume that all information in this appeal shall be treated as 
confidential in accordance with Article  18.2 of the DSU. The Appellate  Body noted that it had in the 
past highlighted the need to distinguish between the general layer of confidentiality that applies in 
WTO dispute settlement proceedings, as foreseen in Arti cles 18.2 and 13.1 of the DSU and the 
additional layer of protection of sensitive business information that a panel may choose to adopt. 
The Appellate  Body further emphasized that, absent any request from the participants, procedures 
for additional protect ion of BCI do not apply in appellate proceedings. The Appellate  Body noted 
that, because, in this dispute, no request for additional protection of BCI was made on appeal, only 
the general layer of confidentiality under the provisions of the DSU applied.  
In US – Tax Incentives , the Appellate  Body received a joint letter from the European  Union  and the 
United  States  requesting the Division hearing this appeal to adopt additional procedures to protect 
BCI. The European  Union  and the United  States  argued that BCI procedures were needed in these 
proceedings to avoid the undue risk of detrimental disclosure of particularly sensitive confidential 
information provided by the United  States  to the Panel.  
The Division hearing the appeal decided to suspend the deadline s that would otherwise apply 
under the Working Procedures for the filing of submissions and other documents in this appeal and 
invited the third parties to comment in writing on the request by the European  Union  and 
the United  States .  
Australia submitted that it did not object to the joint request, provided that the proposed 
procedures were not implemented in a manner that unduly restricted the ability of 
third participants to gain reasonable access to information, or to engage in meaningful 
participation in the proceedings. Taking into account the arguments made by the participants and 
the comments by Australia, the Chair of the Appellate  Body, on behalf of the Division, issued a WT/AB/28  
 
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Procedural Ruling on adopting additional procedures to protect the confidenti ality of BCI in these 
appellate proceedings. The Procedural ruling set out, in particular, rules for: (i) designating 
information as BCI; (ii) treatment of BCI by the Appellate  Body Members and the Appellate  Body 
Secretariat Staff; (iii) referring to BCI i n the Appellate  Body Report and removing any BCI that is 
inadvertently included in the report; (iv) designating "BCI -Approved Persons" by the participants 
and third participants and filing an objection to such a designation; (v) viewing of the BCI versions  
of the su bmissions and the Panel Report by the Third Participant  BCI-Approved Persons; 
and (vi) protecting BCI from unauthorized disclosure at the oral hearing.36 
5.2  Transition  
On 30 June 2017, the Appellate  Body informed the participants and third participants in 
Indonesia  – Import Licensing  and EU – Fatty Alcohols  (Indonesia)  that, in accordance with Rule 15 
of the Working Procedures, the Chair of the Appellate  Body had notified the Chair of the DSB of 
the Appel late Body's decision to authorize Mr Ricardo Ramírez -Hernández who had been assigned 
to serve on the Divisions hearing these appeals before his term expir ed on 30 June 2017, 
to complete  the disposition of these appeals.  
On 24 November 2017, the Appellate  Body informed the participants and third participants in 
several appeals that, in accordance with Rule 15 of the Working Procedures, the Chair of the 
Appellate  Body had notified the Chair of the DSB on the same day of the Appellate  Body's decision 
to autho rize Mr Peter Van den Bossche who had been assigned to serve on the Divisions hearing 
these appeals before his term expired on 11 December 2017, to co mplete the disposition of 
these  appeals.  
5.3  Time limits for the filing of written submissions  
In US – Anti-Dumping Methodologies (China) , the United  States  requested the Appellate  Body 
Division hearing the appeal to extend the time period for filing a Notice of Other Appeal and other 
appellant's submission, and as a consequence the time periods for filing appelle es' and 
third participants' submissions, pursuant to Rule 16(2) of the Working Procedures. Having received 
comments from China and the European  Union , the Division issued a Procedural Ruling, in which it 
came to the conclusion that strict adherence to the time periods set out in the Working Procedures 
would result in manifest unfairness in the particular circumstances  of this case. Accordingly, 
the Division extended the time periods for filing a Notice of Other Appeal and other appellant's 
submission, if an y; the appellee's submission(s); and the third participants' submissions. 
Subsequently, the United  States  informed the Appellate  Body, China, and the third participants 
that it had decided not to file an other appeal.  
In US – Tax Incentives , the Chair of the Appellate  Body received a communication from the 
United  States  requesting that the Division hearing the appeal modify the deadline for the filing of 
the United  States ' appellant's submission. The United  States  maintained that exceptional 
circumstances in these proceedings justified an extension of the deadline. The Chair, on behalf of 
the Division hearing the appeal, invited the European  Union  and the third parties to comment on 
the United  States ' request. The European  Union  indicated that it did not, in principle, oppose the 
United  States ' request, but observed that the United  States  had had more than five months since 
receipt of the final Panel Report to prepare its appellant's submission, and that the time pe riods in 
this dispute were subject to the expedited treatment required by Article  4.12 of the 
SCM Agreement . The Chair, on behalf of the Division, issued a Procedural Ruling in which the 
Division observed that: (i) under normal circumstances – i.e. where t he schedule had not been 
revised to allow for additional procedures to protect BCI – the United  States  would have already 
prepared and filed its appellant's submission; (ii) at the time of the request for additional 
procedures to protect BCI, the United  States had not requested more time to prepare the contents 
of its appellant's submission; (iii) the scheduling of the deadlines for the United  States ' 
submissions in this appeal and in EC and certain member States – Large Civil Aircraft 
(Article  21.5 – US) (DS316) would not impede its ability to finalize the submissions; (iv) there had 
already been a delay in the deadline due to the WTO's end -of-year closure; and (v) the 
                                                
36 Similar Procedural Rulings regarding the protection of BCI and HSBI (highly sensitive business 
information) were adopted in two other appeals that were pending in 2017: EC and certain member States – 
Large Civil Aircraft (Article  21.5 – US) and United  States – Large Civil Aircraft (Article  21.5 – EU). WT/AB/28  
 
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United  States  itself had indicated that its appellant's submission would not be exception ally 
lengthy. For these reasons, the Division declined the United  States ' request.  
5.4  Request for harmonization of appeals schedules  
In US – Tax Incentives , the Appellate  Body received a letter from the European  Union  referring to 
an imminent appeal in this d ispute, to the ongoing appeal in EC and certain member 
States  ‒ Large Civil Aircraft ( Article  21.5 – US) (DS316), and to the anticipated appeal in  
US ‒ Large Civil Aircraft (2nd complaint) ( Article  21.5 – EU) (DS353). The European  Union  
requested that the schedules for these three appeals be harmonized to the greatest extent 
possible and that the hearings be sufficiently proximate in time, so that a particular matter would 
not be effectively disposed of in one appeal before the related matter is heard in on e of the other 
appeals. The United  States  submitted that the European  Union 's request was not supported by the 
DSU or the Working Procedures, and would result in delays in the proceedings, but that it 
remained open to proposals to set deadlines for submiss ions and dates for oral hearings in a way 
that would allow the participants and third participants in each dispute to advocate effectively their 
positions on appeal, and for the Appellate  Body to consid er fully the issues raised. 
The Appellate  Body issued a letter indicating that it would bear in mind the European  Union 's 
request, as well as the comments received, during the appellate proce edings in these 
three  disputes.  
5.5  Requests regarding the conduct of the oral hearing  
In Russia – Pigs, the Appellate  Body Division hearing this appeal received a letter from Russia 
requesting that the Division allow simultaneous English -to-Russian interpretation at the oral 
hearing. Russia explained that government officials intending to participate in the oral hearing did 
not have sufficient English skills to follow a hearing conducted in English and that it would bear all 
costs associated with such simultaneous interpretation.  
The Division invited the European  Union  and the third participants to comment on Russia's 
request . The European  Union  and Australia opposed Russia's request, while Japan, Norway, and 
the United  States  had no objection to Russia providing English -to-Russian interpretation at its own 
expense. Brazil considered that such a request should be granted only in exceptional 
circumstances, and took no position on whether such circumstances were present in this c ase. 
In its Procedural Ruling, the Division noted that Russia's request related to simultaneous 
English -to-Russian interpretation and that Russia did not request, and the Division did not address 
in its Ruling, Russian -to-English interpretation. The Divisi on authorized Russia to include in its 
delegation at the oral hearing interpreters for the purpose of simultaneous interpretation from 
English to Russian and determined that, in the interest of orderly procedure in the conduct of this 
appeal, the interpret ation facilities in the designated hearing room would be used for that purpose.  
In US – Tax Incentives , the United  States  proposed additional procedures to protect BCI during the 
oral hearing and requesting public observation of the opening statements at t he hearing. The 
European  Union  expressed its support for the United  States ' request, but noted that it should be 
for the Appellate  Body to decide whether or not sufficient time remained to organize public 
observation of the opening statements. Australia al so supported the United  States ' request. 
Brazil  expressed its concern regarding the timeliness of the request and what measures might be 
needed to comply with the request. China submitted that the United  States ' request to exclude 
non-BCI-Approved Persons of the third participants from the question -and-answer session would 
significantly constrain the ability of third participants to engage fully in the oral hearing.  
The Division hearing the appeal issued a Procedural Ruling indicat ing that, Third Participa nt 
BCI-Approved Persons were invited to attend the session of the oral hearing in which BCI may be 
discussed. The Division considered that this was sufficient to allow the third participants to be 
represented properly at the oral hearing. Regarding the United States ' request concerning public 
observation of the opening statements at the oral hearing, the Division expressed its strong 
concern regarding the timeliness of that request. While deciding, by majority, to grant 
exceptionally the United  States ' requ est regarding public observation, as supported by the 
European  Union , the Division also underscored the importance for participants wishing to request 
public observation of all or part of oral hearings in disputes to make such requests in a timely WT/AB/28  
 
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fashion,  taking into account the due process rights of other participants and third participants and 
the burden on WTO Secretariat resources. The Division thus adopted in its Procedural Ruling 
additional procedures on the conduct of the oral hearing, including pro cedures pertaining to public 
observation of the opening statements of Member delegations that had agreed to have their 
statements made public.37 
5.6  Reasons for the extension of the time -period for the circulation of Appellate  Body  
reports  
The 90 -day time -period stipulated in Article  17.5 of the DSU for the circulation of reports was 
exceeded in all the appellate proceedings in respect of which Appellate  Body reports were 
circulated in 2017. For each appellate proceeding, the Appellate  Body communicated to the 
DSB Chairman the reasons why it was not possible to circulate the Appellate  Body report within 
the 90 -day period.  
These reasons included the substantial workload of the Appellate  Body, scheduling difficulties 
arising from appellate proceedings running in pa rallel with an overlap in the composition of the 
Divisions hearing the appeals, the demands that these concurrent appeals place on the 
WTO Secretariat's translation services, and a shortage of staff in the Appellate  Body Secretariat. In 
US – Anti-Dumping Methodologies (China) , there were additional constraints owing to the number 
and complexity of the issues raised in that and concurrent appellate proceedings. In Russia – Pigs, 
the Division also referred to the fact that the Appellate  Body was at the time c omposed of five, 
rather than the full complement of seven, Appellate  Body Members.  
In US – Tax Incentives , the Appellate  Body notified the Chair of the DSB that it would not be able 
to circulate its Report in this appeal within the 30 -day or 60 -day period set out in Article  4.9 of the 
SCM Agreement . This was due to a number of factors, including the time needed for adopting and 
complying with additional procedures to protect BCI, the consequent extensions of the deadlines 
for filing submissions, overlapping issues identified by the participants in parallel proceedings, as 
well as the substantial workload faced by the Appellate  Body, the overlap in the composition of the 
Divisions hearing several concurrent appeals, and the shortage of staff in the Appellate  Body 
Secretariat.  
5.7  Correction of clerical errors  
In EU – Fatty Alcohols  (Indonesia) , Indonesia requested  authorization, pursua nt to Rule 18(5) of 
the Working  Procedures, to correc t clerical errors in its Notice  of Appeal. The Appellate  Body 
Division hearing the appeal provided the European  Union  and the third participants with an 
opportunity to comment in writing on Indonesia's r equest. Having received no objections to 
Indonesia's request, the Division authorized Indonesia to correct the clerical  errors in its 
Notice  of Appeal .  
                                                
37 Similar Procedural Rulings regarding public observation of the opening statements of Member 
delegations that had agreed to have their statements made public were adopted for the oral hearings in 
another appeal pending in 2017: EC – and certain member States – Large Civil Aircraft (Article  21.5 – US). WT/AB/28  
 
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6  ARBITRATION S UNDER ARTICLE  21.3( c) OF THE DSU  
The DSU does not specify who shall serve as an arbitrator 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 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. In all but three arbitration proceeding s, 
all those who have served as arbitrators pursuant to Article  21.3(c) have been current or former 
Appellate  Body Member s.38 In carrying out arbitrations under Article  21.3(c), Appellate  Body 
Member s act in an individual capacity.  
6.1  United  States  – Anti-Dumping and Countervailing Measures on Large Residential 
Washers fr om Korea , WT/DS464/RPT  
On 26 September 2016, the DSB adopted the Appellate  Body Report and the Panel Report in 
United  States  – Anti-Dumping and Countervailing Measures on Large Residential Washers from 
Korea . This dispute concerned Korea's challenge of cer tain methodologies used by the 
United  States  in anti -dumping investigations and administrative reviews, as well as certain 
anti-dumping and countervailing measures imposed by the United  States  on imports of large 
residential washers from Korea.  
Specifical ly, Korea challenged "as such" certain aspects of the Differential Pricing Methodology 
(DPM) used by the USDOC to assess the existence of "targeted" dumping (a pattern of export 
prices that differ significantly among different purchasers, regions , or time periods), and thus to 
determine whether to apply the exceptional W -T comparison methodology in calculating the 
dumping margin. Korea also challenged "as such" certain aspects of the methodologies used to 
calculate the margin of dumping when applyi ng the W -T methodology (including the USDOC's use 
of "zeroing" under the W -T comparison methodology). In respect of the  USDOC  Washers  
anti-dumping investigation, Korea challenged "as applied" the USDOC's determination to apply the 
W-T methodology on the ba sis of: (i) its identification of a pattern of export prices which differ 
significantly among different purchasers, regions, or time periods; and (ii) its explanation as to 
why such differences could not be taken into account by the methodologies that are normally to be 
used to calculate the dumping margin. Korea also challenged "as applied" the USDOC's calculation 
of the margin of dumping in the Washers  anti-dumping investigation. With regard to the 
United  States ' countervailing measures, Korea challenged the USDOC's determinations that two 
tax credit programmes were specific. Korea also challenged the manner in which the USDOC 
calculated the ad valorem  subsidy rate for Samsung Electronics Co., Ltd under those programmes.  
In respect of these claims, the Pan el and the Appellate  Body found: (i) certain aspects of the 
USDOC's anti -dumping methodologies (including the DPM and use of the W -T methodology)  to be 
inconsistent "as such" with Articles 2.4, 2.4.2, and 9.3 of the Anti -Dumping  Agreement  and 
Article  VI:2 of the GATT 1994; (ii) certain actions by the USDOC in the Washers  anti-dumping 
investigation to be inconsistent "as applied" with Articles 2.4.2 and 2.4 of the 
Anti-Dumping  Agreement ; and (iii) certain actions by the USDOC in the Washers  countervailing 
duty investigation to be inconsistent "as applied" with Articles 2.1(c) and 19.4 of the 
SCM Agreement  and Article  VI:3 of the GATT 1994.  
At the meeting of the DSB held on 26 October 2016, the United  States  informed the DSB of its 
intention to implement the DSB's recommendations and rulings in this dispute, and stated that it 
would need a reasonable period of time in which to do so. Consultations on the reasonable period 
of time for implementation pursuant to Article  21.3(b) of the DSU did not result in an ag reement . 
Korea therefore requested that the reasonable period of time be determined through binding 
arbitration pursuant to Article  21.3(c) of the DSU. Korea and the United  States  were unable to 
                                                
38 Mr Simon Farbenbloom  served as the Arbitrator  in United  States  – Anti-Dumping Measures on Certain 
Shrimp from Viet Nam . Mr Farbenbloom had previously served as chairperson of the Panel in the underlying 
dispute . Ms Claudia Orozco served as the Arbitrator in United  States – Anti-Dumping and Countervailing 
Measures on Large Residential Washers from Korea . Ms Orozco had previously served as chairperson of the 
Panel in the underlying dispute . Mr Farbenbloom was also appointed as the Arbitrator in United  States – 
Certain Methodologies and Their A pplication to Anti -Dumping Proceedings Involving China , initiated 
17 October  2017, and circulated 19 January 2018.  WT/AB/28  
 
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agree on an arbitrator. Korea therefore requested the Directo r-General to appoint an arbitrator 
pursuant to footnote 12 to Article  21.3(c) of the DSU. After consulting with the parties, the 
Director -General appointed Ms Claudia Orozco as the Arbitrator on 12 January 2017. Ms  Orozco 
accepted this appointment on 16 Ja nuary 2017.  
The United  States  submitted that 21 months would be a reasonable period of time to implement 
the DSB's recommendations and rulings in this dispute. According to the United  States , 
implementation would require three separate proceedings. The United States  explained that it 
required a proceeding pursuant to Section  123 of the Uruguay Round  Agreement s Act (URAA) to 
address the "as such" findings of inconsistency concerning  the DPM and the use of the 
W-T methodology in investigations and assessment proceedings. A second and a third proceeding, 
each pursuant to Section  129 of the URAA, would be needed to address the "as applied" findings 
relating to the Washers  anti-dumping investigation and the Washers  countervailing duty 
investigation, respectively.  In addition, the United  States  asserted that the Section  129 proceeding 
concerning the Washers  anti-dumping investigation could not be commenced until it had partially 
completed the Section  123 proceeding because the Section  123 proceeding would develop the 
revised approaches and methodologies to be applied in the Section  129 proceeding. In this 
connection, the United  States  indicated that Section  123 is a legal instrument that generally 
governs changes in an agency's practice  when a panel or the Appellate  Body finds that practice to 
be WTO -inconsistent. According to the United  States , Section  129 sets out the procedures for the 
implementation of DSB recommendations and rulings in respect of individual anti -dumping or 
counterva iling duty proceedings.  
Korea requested that the reasonable period of time be either six or eight months, depending on 
the precise means of implementation.  Specifically, Korea questioned the time requested for 
preparatory work and the need to undertake a Section  123 procedure to address the "as such" 
findings. Korea contended that, taking into account the number and complexity of the issues 
involved, and the administrative procedures that the United  States  must undergo in order to 
implement revisions to its  measures, the United  States  should reasonably be able to implement all 
of the DSB's recommendations and rulings through proceedings under Section  129 within 
six months. Even if a Section  123 proceeding were to be undertaken to implement the "as such" 
recommendations and rulings, Korea maintained that all three proceedings could be completed 
within a maximum of eight months.  
As an initial matter, the Arbitrator considered the United  States ' proposed means of implementing 
the DSB's "as such" recommendations  and rulings. The Arbitrator recalled the principle that an 
implementing Member has discretion in choosing its means of implementation as long as the 
means chosen is apt in form, nature, and content to bring the Member into compliance with its 
WTO obligati ons. The Arbitrator further recalled the Panel's findings that the DPM and the USDOC's 
methodology for applying the W -T comparison are measures that c ould be challenged "as such" 
in WTO dispute settlement, on the basis of a finding that they are rules or n orms of general and 
prospective application. Additionally, the Arbitrator noted that the text of Section  123(g)(1) 
explicitly indicates that "[i]n any case in which a dispute settlement panel or the Appellate  Body 
finds in its report that a regulation or p ractice of a department or agency of the United  States  is 
inconsistent with any of the Uruguay Round  Agreement s, that regulation or practice may not be 
amended, rescinded, or otherwise modified in the implementation of such report unless and until" 
the rel evant steps set forth under Section  123(g) have been followed. The Arbitrator therefore 
considered that the United  States  had demonstrated that a Section  123 proceeding is an 
appropriate means to implement the DSB's "as  such" recommendations and rulings in  this dispute.  
The Arbitrator then turned to the precise steps of the implementation process, by assessing 
separately: (i) implementation of the DSB's "as such" recommendations and rulings through a 
Section  123 proceeding; (ii) implementation of the DSB's "as applied" recommendations and 
rulings concerning the Washers  anti-dumping investigation through a Section  129 anti -dumping 
proceeding; (iii) the sequencing of the Section  123 and Section  129 proceedings concerning the 
anti-dumping measures; and (iv) imp lementation of the DSB's "as  applied" recommendations and 
rulings concerning the Washers  countervailing duty investigation through a Section  129 
proceeding.  
With regard to implementation of the DSB's "as such" recommendations and rulings concerning 
the DPM and the W -T methodology, the Arbitrator observed that the parties agreed on the steps 
involved in a Section  123 proceeding. The Arbitrator further highlight ed that while some steps can WT/AB/28  
 
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be performed at the same time, other steps must, as a matter of law and by necessary 
implication, occur sequentially.  
The first point of disagreement concerning implementation of the DSB's "as such" 
recommendations and rulings  related to the need and the length of time that would be justified for 
preparatory work, including inter -agency consultations as well as the development and publication 
of a proposed modification. The Arbitrator considered that preparatory work, including  
consultations within government agencies, is a typical and legitimate aspect of "law -making" and 
is reflected throughout the Section  123 process. Consequently, such consultation and preparatory 
work should be taken into account in determining a reasonable  period of time for implementation. 
The Arbitrator considered that the length of time required for such preparatory work is affected by 
the number and complexity of the issues and the number of agencies involved, and that time for 
such preparatory work ser ves the double purpose of ensuring that the resulting methodology is an 
appropriate means of addressing targeted dumping consistently with the Anti -Dumping  Agreement  
and reducing the time needed to undertake subsequent steps in the implementation process.  
Regarding the alleged "novelty" and "complexity" of the issues involved, the Arbitrator noted that 
this is the first dispute in which a panel or the Appellate  Body has interpreted the second sentence 
of Article  2.4.2 of the Anti -Dumping  Agreement . The Arb itrator stated that, in and of itself, the fact 
that a provision is interpreted for the first time in dispute settlement is not necessarily relevant to 
the determination of the reasonable period of time to come into co nformity with that provision. 
A "new" interpretation of a provision may be relatively simple to implement depending on the 
nature of the obligation that it prescribes. The Arbitrator noted that the current case relates to the 
second sentence of Article  2.4.2 of the Anti -Dumping  Agreement  and t he right to use an 
exceptional methodology to calculate the margin of dumping, subject to several conditions, each 
requiring a number of analytical steps to fulfil the parameters of the provision. The scope of the 
DSB's recommendations and rulings in this dispute refers to each element of the provision, and 
each of these elements was fully interpreted for the first time in this dispute. Consequently, in the 
view of the Arbitrator, the nature of the obligations covered by the required implementation 
includes  a number of interrelated issues with an aspect of novelty. Nevertheless, the Arbitrator 
considered that such novelty and complexity are limited to three elements, and for each the range 
of options that can be explored is limited by the parameters of what is WTO -compatible as 
interpreted by the Panel and the Appellate  Body. 
Turning to Korea's argument that the United  States  should have begun taking steps towards 
implementation earlier than it has, both parties agreed that the reasonable period of time for 
implementation is measured as from the date of adoption of the Panel and Appellate  Body Reports. 
The Arbitrator observed that, by the time of the hearing in this arbitration, more than five  months 
had elapsed since the DSB's adoption of the Panel and Appell ate Body Reports. The Arbitrator 
further noted the United  States ' explanation that details could not be provided, and considered 
that it was therefore not possible to assess how much had been accomplished in this period. 
Nevertheless, the Arbitrator stated  that it is important to keep in mind that, in the meantime, 
measures found to be WTO -inconsistent have remained in place, and that Article  21.1 of the DSU 
identifies prompt compliance with DSB recommendations and rulings as "essential in order to 
ensure e ffective resolution of disputes to the benefit of all Members".  
For these reasons, the Arbitrator considered that a period of work that enables publication of a 
proposal only 12  months after adoption of the Panel and Appellate  Body Reports would be 
unjusti fiably long.  
A second point of disagreement regarding implementation of the DSB's "as such" 
recommendations and rulings concerned Korea's claim that the timeline proposed by the 
United  States  does not make use of possible flexibilities. In this regard, the  Arbitrator noted the 
United  States ' explanations that: (i) in practice, consultations with the relevant private sector 
advisory committees foreseen in Section  123 take place simultaneously with the public 
consultation process also foreseen in Section  123; and (ii)  because the report to Congress 
foreseen in Section  123 must include "a summary of the advice obtained" from private sector 
advisory committees and also contains a summary of the comments from the public on the 
proposed rule, the report cannot be done in parallel with those steps.  
The final point of disagreement regarding implementation of the DSB's "as such" recommendations 
and rulings concerned the length of time that must be afforded to the public to comment on the WT/AB/28  
 
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proposed methodology and the t ime to be afforded to the USDOC to complete its analysis of those 
comments. The Arbitrator recalled the observation of previous arbitrators that there must be a 
balance between the transparency and due process rights of interested parties, on the one hand,  
and the promptness required in implementing recommendations and rulings of the DSB, on the 
other hand. In the current case, the Arbitrator highlighted that, while there is no statutorily 
prescribed minimum period for public comment, a shorter -than-normal period for public comment 
risks affecting the legitimacy of the modification. Turning to the period for consideration of the 
comments that may be received, the Arbitrator recalled that the number of issues covered and the 
options available within the param eters of the legal obligation are relatively limited. Consequently, 
the Arbitrator considered that five months from the end of the period for public comment to 
analyse the responses received seemed unjustifiably long.  
Turning to the time required to imple ment the DSB's "as applied" recommendations and rulings 
concerning the Washers  anti-dumping investigation, the United  States  submitted that it would 
require roughly nine months to complete a Section  129 anti -dumping proceeding to implement 
these recommenda tions and rulings, as from the date of publication of the proposed modification 
developed in the context of the Section  123 proceeding. Korea submitted that the United  States  
would require only six months from the date of the adoption of the Panel and Appellate Body 
Reports to complete the Section  129 anti -dumping proceeding.  
The Arbitrator noted that the parties agreed on the steps involved in a Section  129 proceeding, but 
disagreed on: (i) whether a Section  129 proceeding must be completed within a maxim um of 
180 days; (ii) whether the time needed for the Section  129 anti -dumping proceeding encompasses 
time for the USDOC to conduct additional fact -finding; and (iii) the time that the United  States  
would require to address ministerial errors in the final d etermination.  
Regarding the 180 -day time period indicated in Section  129, the Arbitrator observed that the 
structure of Section  129 includes two consultation phases beyond the 180 -day period, and that 
time for each of them must be taken into account. The Arbitrator therefore considered, in line with 
the findings of previous arbitrators on this issue, that the 180 -day time period does not encompass 
the entirety of the Section  129 process. At the same time, the Arbitrator considered that whether 
fact-finding  and additional steps of verification, a hearing, or even a preliminary determination 
would require additional time seemed an unnecessary question, since the text of Section  129 
seemed to indicate that all steps necessary for a redetermination are to be co mpleted within the 
180-day period foreseen in Section  129. In this connection, the Arbitrator considered that reliance 
on time periods used in original investigations seemed inappropriate, because the implementing 
Member is required only to conduct a re -determination to implement a  limited number of 
DSB rulings of inconsistency. Concerning the parties' disagreement over the time required to 
address any ministerial errors before publishing the final determination, the Arbitrator highlighted 
that the United  States had indicated at the hearing that the process of addressing ministerial 
errors could be conducted concurrently with the process of consulting with Congress.  
With regard to the parties' disagreement over whether the Section  123 and Section  129 
proceedings in respect of the anti -dumping measures could take place simultaneously, t he 
Arbitrator recalled that the United  States  had established that a Section  123 proceeding is an 
appropriate means of implementing the DSB's "as such" recommendations an d rulings in this 
dispute. The Arbitrator further noted that such a proceeding entails publication of a proposed 
modification after several months of deliberations, and that, according to the United  States , it is on 
the basis of the proposed modification t hat the "as applied" recommendations and rulings 
concerning the anti -dumping investigation would be implemented through the Section  129 
proceeding. In the Arbitrator's view, without the proposed modification, the USDOC would 
effectively not have a methodol ogy for the application of the second sentence of Article  2.4.2 of 
the Anti -Dumping  Agreement  different from the ones found to be inconsistent with that provision.  
The Arbitrator therefore considered that, while there is a necessary sequence between the 
Section  123 and Section  129 anti -dumping proceedings, there is also an overlap. The Arbitrator 
accepted that initiation of the Section  129 anti -dumping proceeding may need to be on hold until 
such time as the USDOC has published the proposed new methodology . The Arbitrator 
nevertheless highlighted that, under Section  129, the United  States  Trade Representative ( USTR ) 
is obliged to conduct consultations with the USDOC and with Congress "promptly" after circulation 
of a panel or Appellate  Body report, and obse rved that such consultations could begin prior to 
publication of the new methodology.  WT/AB/28  
 
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Turning to  implementation of the DSB's "as applied" recommendations and rulings concerning the 
Washers  countervailing duty investigation, the United  States  indicated tha t implementation would 
take 21  months  because of the time requested for implementation in respect of the anti -dumping 
measures. The United  States  also noted that implementation may require the USDOC to solicit 
additional information. Korea argued that, jus t as for the Section  129 anti -dumping proceeding, 
the United  States  only requires six months from the adoption of the Panel and Appellate  Body 
Reports to complete a Section  129 proceeding addressing the DSB's recommendations and rulings 
concerning the coun tervailing measures. Korea also distinguished the anti -dumping 
redetermination from the implementation steps that would need to be taken in respect of the 
rulings and recommendations made regarding countervailing measures.  
The parties agreed to the steps i n a Section  129 proceeding that would be used by the 
United  States  in implementing the DSB's recommendations and rulings pertaining to the Washers  
countervailing duty investigation. They also concurred that the Section  129 countervailing duty 
redetermination would be separate and independent from the proceedings needed to implement 
the DSB's recommendations and rulings pertaining to the anti -dumping measures. Both parties 
requested determination of a single reasonable pe riod of time for implementation in this dispute.  
As a consequence of the partial sequencing of the proceedings for implementation concerning the 
anti-dumping measures, the Arbitrator observed that the reasonable period of time for 
implementation in this d ispute is necessarily longer than the time required for the Section  129 
countervailing duty proceeding. At the same time, the Arbitrator noted that no reason was 
presented to explain that implementation of the recommendations and rulings relating to the 
countervailing measures could not be completed before the expiration of that period. In that 
context, the Arbitrator considered the principle of prompt compliance contemplated in Article  21.1 
of the DSU to be important.  
Finally, the Arbitrator turned to two  additional circumstances alleged by the United  States  to be 
relevant to the determination of the reasonable period of time in this dispute. Regarding the 
workload of the USDOC, the Arbitrator observed that previous arbitrators have taken the view that 
the workload of an implementing authority is not relevant to the determination of the reasonable 
period of time. The Arbitrator also noted that, in light of Article  21.1 of the DSU, it would be 
inappropriate for the USDOC to prioritize new or ongoing investig ations over correct ive action 
vis-à-vis measures already in force and found to be WTO -inconsistent. Concerning recent changes 
in the United  States ' administration, the Arbitrator observed that the United  States  had clarified at 
the hearing that, although i t had referred to the change in administration in its written submission, 
this was not a factor that had been built into its proposed timetable.  
In light of the foregoing considerations, the Arbitrator determined that the "reasonable period of 
time" for t he United  States  to implement the recommendations and rulings of the DSB in this 
dispute was 15  months from the date on which the DSB adopted the Panel and Appellate  Body 
Reports in this dispute, expiring on 26 December 2017.  WT/AB/28  
 
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7  OTHER ACTIVITIES  
7.1  WTO  20th Anniversary Conferences  
In 2017, the Appellate  Body completed its series of conferences to celebrate the Twentieth 
Anniversary of the WTO and its dispute settlement mechanism. The conferences have been hosted 
by academic institutions and have focused on curre nt dispute settlement issues and the 
Appellate  Body's contribution to the settlement of disputes and other aspects of WTO law. 
Participants have included current and former Appellate  Body members, high -ranking government 
representatives, officials of the WTO and other international organizations, academics, students, 
business leaders, and civil society representatives. The first five conferences in the series were 
held in 2015 and 2016: (i) 15 May 2015 in Italy; (ii)  2-6 July 2015 in China; (iii) 28  August  2015 
in Korea; (iv) 2 -4 December  2015 in Mexico; and (v) 28  to 29 April 2016 in the United  States . 
The sixth and final conference was held in New Delhi, India, from 16 to 18 February 2017. It was 
organized by National Law University, Delhi. Mr  Ujal Singh B hatia, Appellate  Body member, and 
staff from the Appellate  Body Secretariat were on the confe rence organizing committee. 
The conference saw the participation of a wide range of stakeholders, particularly from South Asia. 
The keynote address on the future p rospects of the WTO and multilateral trade regime was 
delivered by Mr Arvind Subramanian, the Chief Economic Advisor to the Government of India. 
Other themes discussed during the conference included, inter alia, trade in services, trade 
remedies, the prote ction of intellectual property rights, challenges to dispute settlement, and the 
relationship between WTO dispute settlement and other areas of global governance. The program 
of the conference is provided in Annex  3.  
7.2  Digital Dispute Settlement Registry  
The WTO Digital Dispute Settlement Registry (DDSR) is being developed as a comprehensive 
application to manage the workflow of the dispute settlement process, as well as to maintain 
digital information about disputes. This application features: (i) a secur e electronic registry for 
filing and serving dispute settlement documents online; (ii) a central electronic storage facility for 
all dispute settlement records; and (iii) a research facility on dispute settlement information and 
statistics.  
The Digital Reg istry will provide for the electronic filing of submissions in disputes, and for 
the creation of an e -docket of all documents submitted in a particular case. The system will 
feature: (i)  a facility to securely file submissions and other dispute -related doc uments 
electronically; (ii)  a means of paperless and secure service on other parties of submissions and 
exhibits; and (iii)  a comprehensive calendar of deadlines to assist Members and the Secretariat 
with workflow management.  
As a storage facility, the Dig ital Registry will provide access to information about WTO disputes, 
in particular, it will serve as an online repository of all panel and Appellate  Body records. As a 
research facility, the Digital Registry will allow Members and the public to search the digital records 
of publicly available data of past disputes. Users will have access to a broader range of information 
and statistics than in the past. With the extent of the information available, WTO Members and the 
Secretariat, as well as the interested public, will be able to generate more in -depth and 
informative statistics on WTO dispute settlement activity.  
In 2017, the Appellate  Body continued to develop and test the DDSR application, helped train 
WTO delegates on its various functions, and compiled dispute information f or uploading into 
the database.  
The DDSR's electronic filing function has been tested as part of a pilot phase since July 2015. 
During this pilot phase, parties, third parties, and panelists volunteer to use the DDSR in parallel 
with t he existing paper filing procedures for written submissions and other dispute 
correspondence. In 2017, the e -filing function of the DDSR was tested at the panel stage in 
several disputes, with two disputes using the Digital Registry for the official filing  of all 
communications between the panel and the parties. Participants in three appellate proceedings 
tested the Digital Registry as part of an appeal pilot phase. The testing of the DDSR in the pilot WT/AB/28  
 
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phase shall continue until the DDSR is fully launched a nd e-filing is considered as the official filing 
for all disputes.  
7.3  ELSA Moot Court  
In 2017, Appellate  Body Secretariat staff along with colleagues from the WTO Secretariat 
participated as panelists in various moot court competitions. The WTO is committed t o supporting 
the development of international trade law and WTO -related studies. One proven tool of such 
development is a simulation of WTO panel proceedings, in fora commonly referred to as WTO Moot 
Court Competitions. In such a Moot Court Competition, ea ch participating student team represents 
both the complainant and the respondent in the fictional case and prepares both written and oral 
submissions. Oral pleadings are made before panels consisting of WTO law experts and a winning 
team is selected. Impor tantly, since 2003, the WTO has supported the annual Moot Court 
Competition on WTO Law organized by the European Law Students' Association (ELSA). The ELSA 
Moot Court Competition involves teams from universities in Afri ca, Asia -Pacific, Europe, 
Latin Ameri ca, and North America.  
While  the WTO is firm in its commitment to support moot court competitions on international trade 
issues, in general, ELSA is of special interest in that it offers a global moot court competition. This 
competition therefore provides teams with the opportunity to interact and compete on a global 
stage with the best teams from the other regions. Moreover, WTO staff members participate in the 
ELSA Moot Court as judges and in other capacities, thereby giving students the opportunity to 
interact with those working directly on WTO issues. Additionally, the competition has created an 
avenue for interaction between WTO Member government officials, local university professors, and 
the participants of the competing teams. This has increased info rmation exchange at the national 
level, and discourse on international trade law and other WTO -related issues.  
In 2017, staff from the WTO and Appellate  Body Secretariats provided support to the global ELSA 
Moot Court Competition through technical advice on the subject matter, sending WTO staff to 
participate as panelists in the various regional rounds, and hosting the Final Oral Round 
in Geneva,  Switzerland.  
 WT/AB/ 28 
 
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ANNEX 1 
SPEECH BY APPELLATE  BODY  CHAIR UJAL SINGH BHA TIA ON 8 JUNE 2017  
THE PROBLEMS OF PLEN TY: CHALLENGING TIMES FO R THE WTO'S DISPUTE SETTLEMENT SYSTEM  
This is the first time that the Appellate  Body has organized an event to mark the release of its 
Annual Report. We intend to make this an annual event. The purpose for doing so is easily 
stated:  the Appellate  Body would like to go beyond the text of its reports to provide meaningful 
insights to all stakeholders about how it works – its experiences, its  constraints, its concerns, 
and its many satisfactions. We believe you have a right to know how we d o our job, as well as 
what more we need to do, in order to do it better.  
In the 22 years of its existence, the Appellate  Body has come a long way, from a hesitant 
after-thought to a mature and well -respected international tribunal. Its 146 adopted reports , along 
with more than 300 panel reports, constitute tens of thousands of pages of jurisprudence which is 
as wide in its reach as it is deep in its probing of the meaning of the covered agreements.  
To give you a flavour of the diversity of issues that hav e come up before the Appellate  Body over 
the last two or three years, here is an illustrative, though by no means exhaustive, 
list: environmental protection, renewable energy subsidies, tax evasion, money laundering, patent 
protection, animal welfare, food  safety, consumer information, dumping, so -called non -market 
economies, and multilateral trade rules and RTAs.  
The prestige that the Appellate  Body now enjoys has a solid found ation which is based on 
several  pillars:  
 the hard work, shared values and wisdom of our predecessors in the Appellate  Body; 
 the unstinting work ethic and expertise of its staff;  
 the assiduous fact -finding and analysis done by panel members and the staff in the 
respective dispute settlement divisions;  
 the dedication and support of the WTO staff as a whole, especially the interpreters, 
translators and the document production depart ment;  
 the increasingly sophisticated submissions and pleadings of the parties who appear 
before us; and  
 last, but by no means least, the unwavering support it enjoys from WTO Members.  
(Let me add that the unwavering support of WTO Members is occasionall y accompanied by 
criticism, and I will come back to this in a while).  
The strongest pillar in this foundation is the shared commitment of all stakeholders to the belief 
that a rules -based multilateral trading system is a global public good that can be sus tained only by 
a predictable, fair and prompt resolution of disputes. As the draf ters of the DSU recognized, 
the WTO dispute settlement system is central in providing security and predictability for 
multilateral trade, by preserving Member's rights and obl igations, and in clarifying the provisions 
as they exist in the covered agreements.  
Indeed, the creation of the Appellate  Body shows that Members recognized the importance of 
predictability, consistency and stability in the interpretation of their WTO rights and obligations. 
The rules and process governing panel and appellate proceedings show the emphasis Members 
placed on the promptness of dispute resolution. Including the requirement of "prompt" resolution 
of disputes in the WTO dispute settlement mechan ism was a major feature that distinguished it 
from other international adjudicative systems. The special emphasis on promptitude was based on WT/AB/28  
 
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the common understanding that, in the world of commerce, time really is money. However, it is 
important to recogni se that, in recent years, the WTO dispute settlement system has substantially 
ceded ground on this distinction.  
In this connection, it is pertinent to recall that the demonstrated success of the dispute settlement 
system in effectively, predictably and ex peditiously resolving disputes is why it is often called the 
crown jewel of the WTO. It is by no means an exaggeration to maintain that the good health of 
this system is vital for orderly global exchange.  
Over the last several years, the Appellate  Body has repeatedly informed WTO Members that, in 
view of the limited resources available to it, the increasing build -up of appeals is steadily leading 
to significant delays in their disposal. The mismatch between Appellate  Body resources and the 
number, size and  complexity of appeals has significantly intensified this year. At present, the 
Appellate  Body is dealing with five appeals, including the very large compliance appeal in the 
"EC ‒ Airbus " dispute. Another five appeals are likely to be filed later this yea r, including, again, 
in two very large disputes – the "US – Boeing " compliance case and Brazil – Certain Measures 
Concerning Taxation and Charges . At present, the Appellate  Body has been unable to fully staff all 
appeals pending before it. By the end of th e year, if all five of the projected appeals materialise, 
there will be further delays of several months in fully staffing and taking up these appeals.  
This problem cannot be expected to go away by itself. In view of the high number of ongoing panel 
proce edings and filings at the panel stage, the workload of the Appellate  Body is unlikely to abate 
in the next few years. Further, the expected increase in the number of appeals in large and 
complex disputes – such as the EC – Airbus  compliance dispute current ly before the 
Appellate  Body – will further exacerbate the problem of delays because such appeals require a 
larger legal team and added support staff than most other appeals, and these larger appeals also 
require a longer period of time to be 4 heard; thus , a significant portion of the Appellate  Body’s 
resources will be unavailable for other appeals for considerable periods of time.  
The consequential delays in handling appeals have implications not only for the dispute settlement 
process of the WTO, but al so for the WTO itself.  
Let us bear in mind the prospective nature of WTO remedies. To the extent that delays in dispute 
resolution involve delays in the assertion of the rule of law, they provide an incentive to those who 
benefit from those delays. As the  representative of Korea reminded the DSB in its meeting on 
31 August 2015, WTO disputes are not about abstract disagreements: they involve real world 
interests. Allow me to quote an extract of the statement as recorded in the DSB minutes:  
Long delays cre ated perverse incentives by lowering the cost of adopting and 
maintaining WTO -inconsistent measures. Interest groups seeking protection would 
pressure Members to adopt these measures, insisting rightly, that they would not be 
subject to review by the WTO for years. Members could therefore expect more 
protectionist measures, and more, not less, di sputes being brought to the WTO .  
These sentiments were echoed by several delegations in the same meeting.  
That was in 2015. Let us cut now to 2017. In the DSB mee ting on 22 May 2017, Canada made a 
statement on the Panel Report in DS 483 ( China –Anti-Dumping Measures on Imports of Cellulose 
Pulp from Canada ). Canada noted that despite efforts by the parties to focus on the key issues in 
the dispute through brief sub missions, the panel proceedings had taken two years to complete. 
It further noted that the Panel's 65 page report had taken four months to translate. Regarding the 
implications of delays, it further added:  
Throughout the period, Canadian cellulose pulp pr oducers have faced additional costs 
and lost sales due to the imposition of anti -dumping duties. As a result, Canadian 
producers of cellulose pulp have seen a 79% decline in export value to China 
between  2013 and 2016. We hope that the prompt implementatio n of this ruling will 
lead to the recovery of our industry and  will benefit Chinese consumers . 
When delays in WTO dispute resolution become the norm, they cast doubt on the value of the 
WTO's rules -oriented system itself. An erosion of trust in this system  can lead to the re -emergence WT/AB/28  
 
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of power orientation in international trade policy. Delays compel WTO Members to look for other 
solutions, potentially elsewhere. And in this, it is the weaker countries that stand to lose the most.  
On the issue of delays in WTO dispute resolution in general, and appellate proceedings in 
particular, I would like to draw your attention to three developments in 2016:  
 First, the appeal rate of panel reports. While the appeal rate may fluctuate somewhat 
from year to year, over th e previous 10 years the average was, I believe, 68%. 
However, I note that in 2016 the appeal rate had risen to 88%. Moreover, in recent 
years, most of the non -appealed panel reports were rather short, whereas the longest 
and most complex panel reports were  almost always appealed.  
 The second development is the increasing number, complexity and duration of 
Article  21.5 compliance proceedings. In 2016, Article  21.5 proceedings were initiated in 
six disputes. As you are aware, Article  21.1 of the DSU provides that 
"prompt  compliance with the recommendations and rulings of the DSB is essential to 
ensure effective resolution of disputes to the benefit of all members". To this end, the 
increased activity in compliance proceedings is troubl ing.  
 A third development relates to the well -known sequencing issue between Article  21.5 
compliance proceedings and Article  22.6 arbitration proceedings on the level and nature 
of suspension of concessions or other commitments. We note that, in a number o f recent 
cases, Article  22.6 proceedings have been directly initiated at the end of the 
RPT (the reasonable period of time) without a sequencing agreement between the 
parties. This development appears to be related to the larger issue of delays in 
WTO dispute resolution. Parallel proceedings under Article  21.5 and Article  22.6 involving 
the same dispute – in the absence of sequencing agreements – convey an impression of 
dysfunction. Addressing the sequencing issue is of great importance for the successful 
operation of the WTO dispute settlement system, in which WTO -consistency is to be 
determined multilaterally and which provides for the right of appellate review of panel 
findings of inconsistency in Article  21.5 proceedings. The situation therefore requires  
responsible and careful action by Members to ensure that the system continues to 
function well. I note that this matter came up for extensive discussion in recent 
DSB meetings, including, in particular, the last meeting of the DSB. It is our hope that 
broad agreement can be reached among Members on this important issue.  
There could be multiple reasons for these recent developments, but it is hard to ignore the 
underlay of restlessness with the increasing delays, which seem to be pushing Members to explore  
other options in pursuing their disputes. We can only speculate about the medium -term 
consequences of these developments on the credibility and utility of the WTO dispute settlement 
system.  
These developments emphasise the need for concerted action by WTO Members to find solutions 
to the c apacity constraints of the system. The dispute settlement system is the product of 
negotiations between WTO Members and functions in their interest. In a rapidly changing global 
trade environment, and a sustained rise in  dispute settlement activity, it is important that 
adaptations are made whenever necessary, so that the system can continue to respond effectively 
to changing situations.  
This brings me to the issue of DSU reform. Negotiations in this regard have been con tinuing for 
almost two decades. Members need to consider whether some reform issues demand priority over 
others. The Appellate  Body would be happy to provide its views on such issues, if consulted.  
Needless to say, the Appellate  Body itself has a role to play in improving its working procedures 
and internal practices. It is fully cognisant of this responsibility and constantly reviews its 
procedures and practices with the view to producing leaner reports more quickly, without 
compromising on quality.  WT/AB/28  
 
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In our consultations with Member representatives over the last few years, we have noted the high 
level of satisfaction among Members regarding the Appellate  Body's functioning. We have also 
received some criticism. This criticism broadly covers three areas :  
 timeframes for appellate review;  
 allegations of "over reach" by the Appellate  Body;  
 issues relating to the "comprehensibility" of Appellate  Body reports.  
I would like to address each of these issues.  
First, the DSU provides for a strict timeframe fo r appellate review. The Appellate  Body gives much 
importance to the need to keep appellate proceedings as short as possible. However, it is obliged 
to address each finding and each legal interpretation appealed. In addition, the DSU explicitly 
provides tha t it is the mandate of the WTO dispute settlement system, and therefore also of the 
Appellate  Body, to clarify the provisions of the covered agreements, with the objective of resolving 
the often -complex disputes between WTO Members and providing security a nd predictability to the 
multilateral trading system. WTO Members expect from the Appellate  Body, and the 
Appellate  Body has the responsibility to provide, reports of the highest quality, which, once 
adopted, assist the DSB in resolving disputes between Me mbers. As the forum of last recourse, the 
Appellate  Body cannot afford to take shortcuts.  
Next, the allegations of "overreach" by the Appellate  Body involve issues regarding the depth, as 
well as the breadth, of its analysis. We are well aware that panels and the Appellate  Body cannot 
add to or diminish the rights or obligations provided for in the covered agreements. As is also well 
known, the Appellate  Body's mandate requires it to address all issues raised on appeal. Moreover, 
the Appellate  Body has to b ear in mind that, while adoption by the DSB makes its rulings binding 
on the parties to the dispute, they also serve the purpose of providing guidance to other 
WTO Members, and thereby aid in avoiding future disputes. Dispute settlement practice 
demonstrat es that WTO Members attach significance to the reasoning provided in previous panel 
and Appellate  Body reports. Adopted panel and Appellate  Body reports are almost always cited by 
parties in support of their legal arguments in dispute settlement proceeding s, and are relied upon 
by panels and the Appellate  Body in subsequent disputes. In addition, when enacting or modifying 
laws and national regulations pertaining to international trade matters, WTO Members take into 
account the legal interpretation of the c overed agreements developed by panels and the 
Appellate  Body.  
As mentioned above, the clarifications of provisions of the covered agreements, as envisaged by 
Article  3.2 of the DSU, elucidate the scope and meaning of the provisions that are at issue in a 
dispute. They are an essential part of the mandate of the WTO dispute settlement system and the 
Appellate  Body. While the application of a provision may be regarded as confined to the context in 
which it takes place, the relevance of clarifications contain ed in adopted panel and Appellate  Body 
reports is not limited to the application of a particular provision in a specific case. As the DSU 
stipulates, the Appellate  Body has to discharge this mandate "in accordance with the customary 
rules of interpretation  of public international law". The Appellate  Body is constantly aware of the 
need to ensure that each and every of its clarifications of WTO provisions meets this standard.  
Finally, the issue of "comprehensibility" of its reports is something that the Appellate  Body takes 
very seriously. Appellate  Body reports cannot afford to be Brahminical treatises, intelligible to a 
chosen few. Their purpose is to resolve disputes, and for that they must be capable of being 
understood by all stakeholders. As just me ntioned by my predecessor Tom Graham, the recent 
innovation of the "Findings and Conclusions" section in our reports should help in their 
demystification. But this remains a work in progress.  
Overall, I would agree that, as in other dispute settlement mec hanisms, there is still some scope 
for efficiency gains in the Appellate  Body's work. There is much to be said for the virtues of 
relentless focus, brevity and readerfriendliness, while at the same time ensuring parties their 
"day in court" by addressing t heir arguments and due process concerns, as well as guaranteeing 
the accuracy, quality and depth of the legal reasoning on the often very difficult issues raised in an WT/AB/28  
 
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appeal. My colleagues and I remain alive to these challenges and will continue to work i n that 
direction.  
The purpose of this address is not to present a litany of woes. Indeed, there is much today in the 
WTO's dispute settlement system that should be celebrated, not bemoaned. The system at large, 
including the Appellate  Body, commands enorm ous support and respect from its users. 
The compliance rate with DSB rulings and recommendations remains very high. The high standard 
of lawyers in the Legal Affairs and Rules Divisions and the AB Secretariat is something of which we 
are genuinely proud. T here is universal recognition that, amid the proliferation of bilateral and 
plurilateral trade agreements, the WTO dispute settlement system has played a crucial role in 
making WTO law one of the liveliest and most effective branches of public internationa l law. The 
increasing use of WTO case law by other dispute settlement systems testifies to the growing 
influence of the WTO’s dispute settlement system on international dispute settlement. Overall, 
there is much in the WTO's dispute settlement system that is rightly envied by other international 
adjudicatory systems.  
But like any other man -made system, the WTO's dispute settlement system should not be taken 
for granted. It requires nurturing through timely interventions  when problem areas emerge. 
The issue of delays is one such problem area which calls for broad, systemic solutions. It should be 
possible to find such solutions through determined action by WTO Members.  
I would like to conclude by saying that the shared values and commitment to the objectives  of fair, 
impartial and independent adjudication of disputes in the WTO among all its stakeholders are the 
greatest sources of the WTO's strength. The Appellate  Body is proud of playing a role in this 
magnificent enterprise and shall continue to work to ea rn the confidence reposed on it.  WT/AB/28  
 
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ANNEX 2 
BACKGROUND NOTE ON R ULE 15 OF THE WORKIN G PROCEDURES FOR APPELLATE  BODY  REVIEW  
Communication from the Appellate  Body 
24 November 2017  
Rule 15 entered into force in 1996 as part of the Working Procedures for Appella te Review 
(Working Procedures ), adopted by the Appellate  Body on the basis of the authority conferred upon 
it by WTO Members in Article  17.9 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  (DSU). In accordance with that pr ovision, in January 1996 the 
Appellate  Body communicated draft Working Procedures to the Chair of the DSB and the 
Director -General. The DSB Chair gathered comments received from various WTO Members 
regarding this draft and conveyed them to the Appellate  Body. The Appellate  Body carefully 
considered the comments made in this consultative process by WTO Members, the Chair of the 
DSB, and the Director -General. The Appellate  Body revised and finalized the Working Procedures 
in accordance with Article  17.9 and t hey entered into force on 15  February 1996.  
Rule 15 of the Working Procedures has been applied by the Appellate  Body in 16  instances 
since 1996; in two cases,1 two of the three Appellate  Body Members (AB  Members) serving on the 
Division completed the disposition of the appeal pursuant to that Rule. This transitional provision 
has worked well for more than twenty years as it has ensured the efficient functioning of the 
Appellate  Body whenever i ts composition changed. Until recently, the application of Rule 15 has 
never been called into question by any participant or third participant in any appeal, nor has it 
been criticized by any Member in the DSB when an Appellate  Body report signed by an AB Member 
completing an appeal pursuant to Rule 15 was adopted by the DSB by negative consensus in 
accordance with Article  17.14 of the DSU.  
Many international adjudicative bodies follow transitional rules or practices similar to Rule 15 
permitting or requiri ng an outgoing adjudicator to complete the disposition of cases assigned prior 
to the expiry of the adjudicator's term of office. In addition, the statutes of some international 
tribunals contemplate that the term of office of an adjudicator is automatical ly extended until a 
successor is appointed. No similar rule providing for the extension of an AB Member's term of 
office until a successor is appointed exists in the DSU. However, decisions extending an 
AB Member's term of office have been taken by the DSB  (for example, in 1999 when the 
DSB extended the terms of office of two AB Members from 11 December 1999 until 
31 March  20002).  
Appellate  Body Members, authorized pursuant to Rule 15, may complete the disposition of appeals 
assigned to them prior to the e nd of their terms of office. Such outgoing AB Members cannot be 
assigned to appeals filed after their term has expired. Outgoing Members do not participate in 
discussions and decision -making on general Appellate  Body matters and the functioning of the 
Appellate Body after their term has expired. They are not permitted to attend exchanges of views 
held after their term expired except when they continue to serve on a Division under Rule 15. 
A new AB Member replacing an outgoing AB Member may not attend the ex change of views in an 
appeal where the outgoing Member continues to serve on a Division pursuant to that Rule.  
Completing the work on appeals assigned before the expiry of the term of office places a 
significant burden on the outgoing Member. However, in order to ensure the smooth functioning of 
the appellate stage when the Appellate  Body's composition changes, and in particular when it has 
not been possible to fill vacancies in a timely fashion, AB Members have stayed on, with the 
authorization of the Appellate  Body, to complete the disposition of pending appeals under Rule 15.  
                                                
1 Appellate  Body Reports , US – Lead and Bismuth II (2000) ; US – Section  211 Appropriations Act 
("Havana Club")  (2002).  
2 Mr Said El -Naggar and Mr Mitsuo Matsushita from 11 December 1999 to 31 March 2000 ( Minutes of 
the DSB Meeting held on 27 October and 3 November 1999 , WT/DSB/M/70 , p. 33 ). WT/AB/28  
 
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This Rule as initially conceived was intended to apply for relatively short periods of transition. 
Nowadays it applies more often and for more extended periods than in the past for several 
reasons. Essentially, the large number of appeals, and the exceptional size of some appeals 
stretches the time -frame for hearing and deciding those appeals, which in turn stretches the time 
a Division Member involved in these appeals needs to compl ete an appeal under Rule 15. This 
situation is further compounded by two other factors. When the number of vacant seats on the 
Appellate  Body is high, the remaining AB Members are more frequently assigned to appeals by 
random draw. In addition, the time -periods needed for the completion of appeals, including those 
where Rule 15 applies, increase when the Appellate  Body Secretariat is short of lawyers such that 
appeals cannot be staffed immediately when they are filed.  
The DSB is still discussing the launch  of selection processes for filling up three vacancies in the 
Appellate  Body, including that of Mr Van den Bossche. In order to maintain the stability of the 
dispute settlement system, to deal with the unprecedented workload of appeals, and to preserve 
the rights of participants and third participants in pending appeals, the Appellate  Body is left with 
no option but to apply Rule 15.  
Regarding the application of Rule 15 with respect to the appeals that have been assigned to 
Mr Van den Bossche before his term of office expires on 11 December 2017, the Chair of the 
Appellate  Body has transmitted a notification to the Chair of the DSB as provided for in that Rule.  
The Appellate  Body is open to suggestions from the DSB on all  matters aimed at improving 
its functioning.   
 WT/AB/ 28 
 
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ANNEX 3  
WTO@20 CONFERENCE, N EW DELHI  
16-18 FEBRUARY 2017  
Organized by the Appellate  Body of the World Trade Organization  
together with National Law University, Delhi  
PROGRAM  
THURSDAY, 16 FEBRUAR Y (VENUE: LONGCHAMP,  THE TAJ MAHAL HOTEL,  NEW DELHI)  
1800 hrs : 
Welcome reception and registration  
1900 hrs:  
Welcome address  
Prof. (Dr.) Ranbir Singh, Vice Chancellor, National Law University, Delhi  
1905 hrs:  
Opening keynote: The current state and prospects of the multilateral 
trade regime and India's role and interests thereunder  
Mr. Arvind Subramanian, Chief Economic A dviser, Government of India   
1945 hrs : 
Roundtable discussion: The new global politics: Is there space for trade 
multilateralism?  
Moderator : Mr. Ujal Singh Bhatia, Chair, Appellate  Body, WTO  
Speakers:  
1. Mr. Arvind Subramanian, Chief Economic Adviser, Government of India  
2. Prof. Thomas Cottier, Emeritus Professor, World Trade Institute, Bern  
3. Dr. Harsha Vardhana Singh, Executive Director, Brookings Institution 
India Center, New Delhi  
4. Ms. Rita Teaotia, Secre tary, Ministry of Commerce, Government of India  
5. Prof. Gregory Shaffer, Chancellor's Professor of Law, University of 
California, Irvine School of Law  
2100 hrs:  Dinner  
FRIDAY, 17 FEBRUARY (VENUE: NATIONAL LAW  UNIVERSITY, DELHI)  
0900 hrs -1030 hrs:  
Panel 1 – The role of the WTO  in international intellectual property 
governance  
Moderator:  Mr. A. V. Ganesan, former Member, Appellate  Body, WTO 
Speakers : 
1. Ms. Jayashree Watal, Senior Counsellor, Intellectual Property Division, 
WTO  
2. Prof. Yogesh Pai, Assistant Professor, National Law University, Delhi  
3. Prof. Frederick Abbott, Edward Ball Eminent Scholar Professor of 
International  Law, Florida State University, College of Law  WT/AB/28  
 
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4. Prof. Chandni Raina, Professor, Centre for WTO Studies, IIFT (tbc)  
Discussant : Prof. Thomas Cottier, Emeritus Professor, World Trade Institute, Bern   
1100 hrs -1230 hrs:  
Panel 2 – Evolution of, and challenges posed by, trade remedy disputes 
at the WTO  
Moderator : Mr. David Unterhalter, former Member, Appellate  Body, WTO  
Speakers : 
1. Mr. S. Seet haraman, Principal Partner, Lakshmikumaran & Sridharan, 
Delhi  
2. Mr. Renato Antonini, Partner, Jones Day, Brussels  
3. Mr. Philippe De Baere, Partner, Van Bael & Bellis, Brussels  
4. Mr. Johann Human, Director, Rules Division, WTO  
5. Dr. Werner Zdouc, Director, Appellate  Body Secretariat, WTO  
Discussant : Prof. Mark Wu, Harvard Law School, Cambridge   
1400 hrs -1530 hrs:  
Panel 3 – Developing countries' participation in WTO  dispute settlement  
Moderator : Mr. Shree Baboo Chekitan Servansing, Member, Appellate  Body, WTO  
Speakers:  
1. Prof. James Nedumpara, Associate Professor, Jindal Global Law School  
2. Dr. Jayant Dasgupta, Executive Partner, Lakshmikumaran & Sridharan, 
Delhi  
3. Ms. Moushami Joshi, Foreign Attorney, Pillsbury, Washington, D.C.  
4. Mr. Marco Tulio Molina Tejeda, Deputy Permanent Representative of 
Guatemala to the WTO, Geneva  
Discussant : Mr. Niall Meagher, Executive Director, ACWL, Geneva  
1600 hrs -1730 hrs:  
Panel 4 – The WTO  and trade in services  
Moderator : Prof. Jennifer Hillman, former Member, Appellate  Body, WTO 
Speakers : 
1. Prof. Rupa Chanda, RBI Chair in Economics, Indian Institute of 
Management, Bangalore  
2. Dr. Aaditya Mattoo, Research Manager, Trade and International 
Integration, Development Research Group, World Bank, Washington, 
D.C.  
3. Mr. Hamid Mamdouh, Director, Trade in Services and Investment 
Division, WTO  
4. Mr. Suhail Nathani, Partner, Economic Laws Practice, Mumbai  
5. Ms. Anuradha RV, Partner, Clarus Law Associates  
Discussant : Prof. Pierre Sauvé, Faculty, World Trade Institute, Bern  
1930 hrs:  Dinner for s peakers and invited guests (Delhi Gymkhana Club)  WT/AB/28  
 
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SATURDAY, 18 FEBRUAR Y (VENUE: NATIONAL L AW UNIVERSITY, DELHI ) 
0900 hrs -1030 hrs:  
Panel 5 – The WTO  dispute settlement system and other areas of global 
governance  
Moderator : Mr. Ricardo Ramirez Hernandez, Member, Appellate  Body, WTO  
Speakers :  
1. Prof. Prabhash Ranjan, Assistant Professor, South Asia University, Delhi  
2. Ms. Yuejiao Zhang, former Member, Appellate  Body, WTO  
3. Dr. Filippo Fontanelli, Lecturer, Edinburgh Law School  
4. Dr. Aniruddha Rajput, Member, UN International Law Commission  
Discussant : Prof. Gabrielle Marceau, GSI (Global Studies Institute), University of 
Geneva; Senior Counsellor, Legal Affairs Division, WTO  
1100 hrs -1300 hrs:  
Panel 6 – Addressing non -trade concerns at the WTO  
Moderator : Prof. Peter Van den Bossche, Member, Appellate  Body, WTO  
Speakers : 
1. Prof. Gregory Shaffer, Chancellor's Professor of Law, University of 
California, Irvine School of Law  
2. Prof. Robert Howse, Lloyd C. Nelson Professor of Interna tional Law, New 
York University  
3. Ms. Jan Yves Remy, International Lawyer, Sidley Austin, Washington, 
D.C. 
4. Prof. Seung Wha Chang, former Member, Appellate  Body, WTO  
 
Discussant : Prof. Abhijit Das, Head and Professor, Centre for WTO Studies, IIFT   
1330 hrs:  Closing lunch  
 
  WT/AB/28  
 
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ANNEX 4 
MEMBERS OF THE APPEL LATE BODY  
(1 JANUARY TO 31 DEC EMBER 2017)  
BIOGRAPHICAL NOTES  
Ujal Singh Bhatia  (India) (2011 -2019)  
Ujal Singh  Bhatia was born in India on 15 April 1950. He was India's Ambassador and Permanent 
Representative to the WTO from 2004 to 2010 and represented India in a number of dispute 
settlement cases. He also served as a WTO dispute settlement panelist in 2007 -2008.  
Mr Bhatia has served in senior positions in the Government of India as well as in Orissa State in 
various administrative assignments that involved development administration and policy -making. 
His legal and adjudicatory experience spans over three decades , and has involved domestic 
and international legal/jurisprudence issues, as well as negotiation of bilateral, regional, and 
multilateral trade agreements.  
Mr Bhatia has often lectured on international trade issues and has published numerous papers and 
articles on a range of trade and economic topics. He holds an MA i n Economics from the 
University  of Manchester and from Delhi University, as well as a BA  (Hons) in Economics, 
also from Delhi University.  
Thomas R. Graham  (United  States ) (2011 -2019)  
Tom is the  former head of the international trade practice at King & Spalding, and he was the 
founder of the international trade practice at Skadden, Arps, Slate, Meagher & Flom. He was one 
of the first US lawyers to represent respondents in trade remedy cases in va rious 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.  
Prior to entering private practice, Tom served as Deputy General  Counsel in the Office of the 
US Trade Representative. Earlier in his career, he was a Legal Of ficer of the United Nations, 
in Geneva; and a visiting professor of law and staff member of Ford Motor Company, 
in Caracas,  Venezuela.  
Tom was the founding chair man of the American Society of International Law's Committee on 
International Economic Law. He served as 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 Law Center.  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 has been a Guest Scholar at the Brook ings Institution and a 
Senior  Associate at the Carnegie Endowment for International Peace. He also is the co -author, with 
his daughter, of Getting Open: The Unknown Story of Bill Garrett and the Integration of College 
Basketball  (Simon  & Schuster, Atria Bo oks, 2006; Indiana University, paperback, 2008).  
Tom received his undergraduate degree from Indiana University, and his JD from Harvard 
Law School.  
Ricardo Ramírez -Hernández  (Mexico) (2009 -2017)  
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 internation al law firm in Mexico City. 
His practice focused on issues related to NA FTA and trade across Latin America, including 
international trade dispute resolution.  WT/AB/28  
 
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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. I n 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 (F TAA), 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 also served on NAFTA panels.  
Mr Ramírez -Hernández holds an LLM degree in International Business Law from the 
American  University Washington College of Law, and a law degree from the Universidad 
Autónoma  Metropolitana.  
Hyun Chong Kim  (Korea)  (2016 -2017*) 
Mr Kim received his bachelor's, master's, and JD degrees  from Columbia University in New York. 
He served as Trade Minister for Korea from 2004 to 2007, during which time Korea negotiated free 
trade agreements with more than 40 countries, incl uding Korea 's biggest trading partners. 
As minister, Mr Kim was appointed Facilitator for the services neg otiations at the 
WTO's  December  2005 Hong Kong Ministerial Conference and helped Korea host the 
November  2005 Asia -Pacific Economic Cooperation (APEC)  Leaders' Summit in Busan. He served 
as Korea's Ambassador to the United Nations from 2007 to 2008 and was elected Vice President of 
the UN  Economic and Social Council in 2008, where he wo rked towards achievement of 
the Millennium Development Goals.  
Between 1999 and 2003, Mr Kim was a senior lawyer in the WTO's Appellate  Body Secretariat and 
Legal Affairs Division, where he worked on cases related to IPR, services, TRIMs, safeguards, and 
subsidies/countervailing measures, among others. More recently, Mr Kim oversaw patent and 
anti-trust litigation with a major Korean corporation and is currently a professor at 
Hankuk  University of Foreign Studies in Seoul, where he focuses on trade law and trade policies.  
Shree Baboo Chekitan Servansing  (Mauritius) (20 14-2018)  
Born in Mauritius on 22 April 1955, Shree Baboo Chekitan Servansing enjoyed a long and 
distinguished career with the Mauritian civil service. From 2004 to 2012, Mr Servansing was 
Mauritius' Ambassador and Permanent Representative to the United Nat ions Office and other 
International Organizations in Geneva, including the WTO. During his tenure as Permanent 
Representative, he served on various committees at the WTO, and chaired the Committees on 
Trade and Environment, and Trade and Development. He al so chaired the Work Programme on 
Small Economies, the dedicated session on Aid -for-Trade, and the African Group, and was 
coordinator of the African Caribbean Pacific (ACP) Group.  
Mr Servansing previously worked, in various capacities, for the Mauritius Min istry of Foreign Affairs 
in Mauritius, India , and Belgium. During his tenure at the Mauritius Embassy in Belgium, he was 
intensively involved in the ACP -EU negotiations leading to the Cotonou  Agreement  and 
subsequently in the Economic Partnership  Agreement  (EPA) negotiations. Mr Servansing also 
served as the personal representative of the Prime Minister of Mauritius on the Steering Committee 
of the New Partnership for Africa's Development (NEPAD). In this capacity he was engaged in the 
strategic formulation  of Africa's flagship development framework.  
Upon retiring from civil service, Mr Servansing served as the head of the ACP -EU Programme on 
Technical Barriers to Trade in Brussels from 2012 to 2014. In this position, he was responsible for 
facilitating the building of capacity among ACP countries in order to enhance their export 
competitiveness, and improve their Quality Infrastructure to comply with technical regulations.  
                                                
* Mr Hyun Chong Kim resigned from the Appellate  Body, effective 1 August 2017.  WT/AB/28  
 
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Mr Servansing's experience in trade policy, trade negotiations, and the multilateral t rading system 
spans three decades. He has frequently spoken on international trade issues, and has published 
numerous papers and articles in Mauritian and foreign journals on a variety of trade -related issues.  
Mr Servansing holds an MA from the University of Sussex, a Postgraduate Diploma in 
Foreign  Affairs and International Trade from Australian National U niversity, and a BA (Hons) 
from the University of Mauritius.  
Peter Van den Bossche  (Belgium) (2009 -2017)  
Born in Belgium on 31 March 1959, Peter Van den Bossche is Professor of International Economic 
Law at Maastricht University, the Netherlands. Mr Van den Bossche is also visiting professor at the 
College of Europe, Bruges (since 2010); the University of Barcelona (IELPO Programme) 
(since  2008); and the W orld Trade Institute, Berne (MILE Programme) (since 2002). He is member 
of the Advisory  Board of the  Journal of International Economic Law,  the Journal of World 
Investment and Trade , and the  Revista Latinoamericana de Derecho Comercial International . He is  
also member of the Advisory Board of the WTO  Chairs Programme (WCP).  
Mr Van den Bossche holds a Doctorate in Law from the European University Institute in Florence, 
an LLM from the University of Michigan Law School, and a Licence en Droit  magna  cum laude  from 
the University of Antwerp. From 1990 to 1992, 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 WT O 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 Univ ersité libre de Bruxelles, Brussels, 
Belgium  (2002 -2009); the China -EU School of Law, China Univ ersity of Political Science 
and Law, Beijing, China (2008 -2014); the Trade Policy Training Centre in Africa (trapca), Arusha, 
Tanzania (2008 and 2013); the Fore ign Trade University, Ha noi & Ho Chi Minh City, 
Vietnam  (2009  and 2011); the Universidad San Francisco de Qui to, Ecuador (2013); and the 
Law School of Koç University, Istanbul, Turkey  (2013).  
Mr Van den Bossche has published extensively in the field of int ernational economic law. He is 
author of the book  The Law and Policy of the World Trade Organization , of which the third edition 
(with Werner Zdouc) was published by Cambridge University Press in 2013.  
Hong Zhao  (China) (2016 -2020)  
Ms Zhao received her bachelor's and master's degrees and a phD in Law from the Law School of 
Peking University in China. She currently serves as Vice President of the Chinese Academy of 
International Trade and Economic Cooperation. Ms Zhao is also a guest Professor at several 
universities including the Universities of Peking, Fudan, and International Business and Economics. 
Previously she served as Minister Counsellor in charge of legal affairs at China's mission to the 
WTO, during which time she served as Chair of the WTO's Commi ttee on Trade -Related 
Investment Measures (TRIMs). Ms Zhao then served as Commissioner for Trade Negotiations at 
the Chinese Ministry of Commerce's Department for WTO Affairs, where she participated in a 
number of important negotiations on international tr ade, including the Trade Facilitation  
Agreement  negotiations, and negotiations on expansion of the Information Technology  Agreement . 
Domestically, Ms Zhao helped formulate many important Chinese legislative acts on economic and 
trade areas adopted since th e 1990s and has experience in China's judiciary system, serving as 
Juror at the Economic Tribunal of the Second Intermediate Court of Beijing between 1999 
and 2004. She has also taught and supervised law students on international economic Law, 
WTO law and intellectual property rights (IPR) at various universities in China.  
* * * WT/AB/28  
 
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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 LLM from Michigan Law School 
and a PhD 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. In 2008 -2009 he chaired the WTO Joint Advisory Committee to the 
Director -General. He has been a lecturer and Visiting Professor for international t rade law at 
Vienna Economic University ; the Universities of St. Gallen, Zurich, Barcelona, Seoul, and 
Shanghai ; and the Geneva Graduate Institute. 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 
Committee of the International Law Association.  
 WT/AB/ 28 
 
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ANNEX 5 
FORMER APPELLATE BOD Y MEMBERS AND CHAIRP ERSONS  
I. FORM ER 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 
Venkatachalam 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 
Shotaro Oshima  Japan  2008-2012 
David Unterhalter  South Africa  2006-2009 
2009-2013 
Yuejiao Zhang  China  2008-2012 
2012-2016 
Seung Wha Chang  Korea, Republic of  2012-2016 
Hyun Chong Kim  Korea, Republic of  2016-2017*  
* Mr Hyun Chong Kim resigned from the Appellate  Body, effective  1 August 2017.  WT/AB/28  
 
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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 20 04-
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  
Yuejiao Zhang  China  11 December 2011 - 
31 May 2012  
1 June 2012 - 
31 December 2012  
Ricardo Ramírez Hernández  Mexico  1 January 2013 -
31 December 2013  
1 January 2014 -
31 December 2014  
Peter Van den Bossche  Belgium  1 January 2015 -
31 December 2015  
Thomas Graham  United  States  1 January 2016 -
31 December 2016  
Ujal Singh Bhatia  India 1 January 2017 -
31 December 201 7 
 WT/AB/ 28 
 
- 85 - 
 
ANNEX 6 
APPEALS FILED: 1995 -20171 
TOTAL NUMBER OF APPEALS : 1995 -2017 
 
APPEALS FILED: 1995 -2017 
Year Notices of  
Appeal filed  Notices of Appeal 
in original 
proceedings  Notices of Appeal 
in Article  21.5 
proceedings  
1995   0 0 0 
1996   4 4 0 
1997   6a 6 0 
1998   8 8 0 
1999   9b 9 0 
2000  13c 11 2 
2001   9d 5 4 
2002   7e 6 1 
2003   6f 5 1 
2004   5 5 0 
2005  13 11 2 
2006   5 3 2 
2007   4 2 2 
2008  11g 8 3 
2009 3 1 2 
                                                
1 No appeals were filed and no Appellate  Body reports were circulated in 1995, the year the 
Appellate  Body was established.  02468101214WT/AB/28  
 
- 86 - 
 
Year Notices of  
Appeal filed  Notices of Appeal 
in original 
proceedings  Notices of Appeal 
in Article  21.5 
proceedings  
2010 3 3 0 
2011 9 9 0 
2012 5 5 0 
2013 2 2 0 
2014 13 11 2 
2015 8h 6 2 
2016 8 7 1 
2017 8 6 2 
Total  159 133 26 
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 includ es two Notices of Appeal that 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 
exclude s 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  State s, which 
subsequently filed another Notice of Appeal in relation to the same panel report: US – Softwood Lumber 
IV. 
g This number includes two Notices of Appeal that were filed at the same time in related matters, counted 
separately: US – Shrimp (Thailand)  and US – Customs Bond Directive.   
h This number includes two Notices of Appeal that were filed at the same time in related matters, counted 
separately: China – Measures Imposing Anti -Dumping Duties on High -Performance Stainless Steel 
Seamless Tubes ("HP -SSST") from Japan  and China – Measures Impos ing Anti -Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP -SSST") from the European  Union .  WT/AB/ 28 
 
- 87 - 
 
ANNEX 7 
PERCENTAGE OF PANEL REPORTS APPEALED BY YEAR OF ADOPTIONa: 199 6-2017b 
 All panel reports  Panel reports other than  
Article  21.5 reportsc Article  21.5 
panel reports  
Year of  
adoption  Panel 
reports 
adoptedd Panel 
reports 
appealede Percentage 
appealedf Panel 
reports 
adopted  Panel 
reports 
appealed  Percentage 
appealed  Panel  
reports 
adopted  Panel  
reports 
appealed  Percentage 
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 – 
2013 4 2 50% 4 2 50% 0 0 – 
2014 15 13 87% 13 11 85% 2 2 100%  
2015 13 8 62% 11 6 55% 2 2 100%  
2016 8 7 88% 6 6 100%  2 1 50% 
2017 9 8 89% 9 6 67% 0 2 100%  
Total  231 159 70% 198 133 68% 33 26 79% 
a  The figures in this table correspond to the year in which the panel report was adopted, even in cases when 
the panel reports were appealed in a different year.  
b  No panel reports were adopted in 1995.  
c  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 t o comply with the recommendations and rulings" 
of the DSB upon the adoption of a previous panel or Appellate  Body report.  
d  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 , EC – Export Subsidies on Sugar , and EC – Chicken Cuts  are 
also counted as single panel reports in each of those disputes.  
e  The number of panel reports app ealed may differ from the number of Appellate  Body reports because some 
Appellate  Body reports address more than one panel report.  
f  Percentages are rounded  to the nearest whole number.  
 WT/AB /5 
Page 87 
 WT/AB/28  
 
- 88 -  WT/AB/28  
 
- 88 - ANNEX 8 
WTO AGREEMENTS ADDRESSED  IN APPELLATE BODY REPORTS CIRCULA TED: 1996-2017 
The chart below shows the number of times specific WTO agreem ents have been addressed in 
the 150 Appellate  Body reports circulated from 1996 to 2017. 
 
 
 119 
99 
36 35 
16 15 10 8 7 6 3 3 3 3 DSU
GATT 1994
Anti-
Dumping
SCM
Agriculture
WTO
Agreement
TBT
SPS
Safeguards
GATS
TRIMs
TRIPS
ATC
Import
LicensingWT/AB/28  
 
- 89 - 
 
WTO  AGREEMENTS ADDRESSED IN APPELLATE  BODY  REPORTS CIRCULATED : 1996 -2017 a 
Year of  
circulation  DSU WTO  
Agmt  GATT  
1994  Agri- 
culture  SPS ATC TBT TRIMs  Anti- 
Dumping  Import  
Licensing  SCM Safe-
guards  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 
2013  0 0 2 0 0 0 0 2 0 0 2 0 0 0 
2014  6 4 7 0 0 0 2 0 0 0 3 0 0 0 
2015  7 0 7 1 0 0 2 0 3 1 0 0 0 0 
2016  6 1 6 0 0 0 0 1 2 0 1 0 1 0 
2017  6 0 2 2 1 0 0 0 2 0 1 0 0 0 
Total  119 16 99 16 8 3 10 3 36 3 35 7 6 3 
 a No appeals were filed and no Appellate  Body reports were circulated in 1995, the year the Appellate  Body was established.  
 WT/AB/ 28 
 
- 90 - 
 
ANNEX 9 
PARTICIPANTS AND THI RD PARTICIPANTS IN A PPEALS: 199 6-2017 
The chart below 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 t o 2017.1 
WTO  MEMBER PARTICIPATION IN APPEALS 1996 -2017 
  
I. STATISTICAL SUMMARY  
WTO  Member  Appellant  Other 
appellant  Appellee  Third 
participant  Total  
Antigua & 
Barbuda  0 1 1 0 2 
Argentina  3 5 8 22 38 
Australia  2 2 6 49 59 
Bahrain, Kingdom 
of 0 0 0 1 1 
Barbados  0 0 0 1 1 
Belize  0 0 0 4 4 
                                                
1 No appeals were filed and no Appellate  Body reports were circulated in 1995, the year the 
Appellate  Body was established.  84 
63 188 335 
71 
31 83 583 
050100150200250300350400450500550600
Appellants Other Appellants Appellees Third ParticipantsAppearances before the  
Appellate  Body 
Developed Countries Developing Countries  WT/AB/28  
 
- 91 - 
 
WTO  Member  Appellant  Other 
appellant  Appellee  Third 
participant  Total  
Benin  0 0 0 1 1 
Bolivia, 
Plurinational 
State of  0 0 0 1 1 
Brazil  5 7 12 42 66 
Cameroon  0 0 0 3 3 
Canada  14 10 23 36 83 
Chad 0 0 0 2 2 
Chile 3 0 2 12 17 
China  16 5 11 54 86 
Colombia  1 0 0 23 24 
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 19 23 
Egypt  0 0 0 2 2 
El Salvador  0 0 0 6 6 
European  Union  22 22 51 75 170 
Fiji 0 0 0 1 1 
Ghana  0 0 0 2 2 
Grenada  0 0 0 1 1 
Guatemala  1 2 2 13 18 
Guyana  0 0 0 1 1 
Honduras  0 2 2 6 10 
Hong Kong, 
China  0 0 0 8 8 
Iceland  0 0 0 2 2 
India 9 2 8 47 66 
Indonesia  3 1 1 5 10 
Israel  0 0 0 2 2 
Jamaica  0 0 0 5 5 
Japan  7 6 15 71 99 
Kenya  0 0 0 1 1 
Korea  3 5 7 41 56 
Kuwait,  
the State of  0 0 0 1 1 
Madagascar  0 0 0 1 1 
Malaysia  1 0 1 1 3 
Malawi  0 0 0 1 1 
Mauritius  0 0 0 2 2 WT/AB/28  
 
- 92 - 
 
WTO  Member  Appellant  Other 
appellant  Appellee  Third 
participant  Total  
Mexico  5 6 9 36 56 
Namibia  0 0 0 1 1 
New Zealand  0 3 8 14 25 
Nicaragua  0 0 0 4 4 
Nigeria  0 0 0 1 1 
Norway  2 1 3 35 41 
Oman  0 0 0 4 4 
Pakistan  0 0 2 3 5 
Panama  1 0 2 3 6 
Paraguay  0 0 0 7 7 
Peru 1 1 1 7 10 
Philippines  3 0 3 2 8 
Poland  0 0 1 0 1 
Russian 
Federation  1 0 1 12 14 
Saint Lucia  0 0 0 4 4 
Saudi Arabia, 
Kingdom of  0 0 0 18 18 
Senegal  0 0 0 1 1 
Singapore  0 0 0 2 2 
South Africa  0 0 0 1 1 
St Kitts & Nevis  0 0 0 1 1 
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 1 3 
Chinese Taipei  0 0 0 44 44 
Tanzania  0 0 0 1 1 
Thailand  3 2 5 23 33 
Trinidad 
& Tobago  0 0 0 1 1 
Turkey  1 0 0 20 21 
Ukraine  0 0 0 1 1 
United  States  38 24 85 44 191 
Venezuela, 
Bolivarian 
Republic of  0 0 1 6 7 
Viet Nam  1 0 0 9 10 
Total  148 110 275 897 1430  
 WT/AB/28  
 
- 93 - 
 
II. DETAILS BY YEAR OF C IRCULATION  
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  --- 
 
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/28  
 
- 94 - 
 
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/28  
 
- 95 - 
 
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/28  
 
- 96 - 
 
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 
Communitiesa 
India 
Japanb 
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/28  
 
- 97 - 
 
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/28  
 
- 98 - 
 
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 – Autosc 
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/ 28 
 
- 99 - 
 
 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/28  
 
- 100 - 
 
 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/28  
 
- 101 - 
 
 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/28  
 
- 102 - 
 
 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/28  
 
- 103 - 
 
 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/28  
 
- 104 - 
 
 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/28  
 
- 105 - 
 
 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  
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  WT/AB/28  
 
- 106 - 
 
  
2008 (CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
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  
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  WT/AB/28  
 
- 107 - 
 
 2008 (CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
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/28  
 
- 108 - 
 
 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  
 
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  WT/AB/28  
 
- 109 - 
 
 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  
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  
 WT/AB/28  
 
- 110 - 
 
 2011 (CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
Philippines – Distilled Spirits  
(European  Union ) 
WT/DS396/AB/R  Philippines  European  Union  European  Union  
Philippines  Australia  
China  
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/28  
 
- 111 - 
 
 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/28  
 
- 112 - 
 
 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/28  
 
- 113 - 
 
 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/28  
 
- 114 - 
 
 2013  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
Canada – Renewable Energy  
WT/DS412/AB/R  Canada  Japan  Japan  
Canada  Australia  
Brazil  
China  
El Salvador  
European  Union  
Honduras  
India 
Korea  
Mexico  
Norway  
Saudi Arabia  
Chinese Taipei  
United  States  
Canada – Feed-in Tariff Program  
WT/DS426/AB/R  Canada  European  Union  European  Union  
Canada  Australia  
Brazil  
China  
El Salvador  
India 
Japan  
Korea  
Mexico  
Norway  
Saudi Arabia  
Chinese Taipei  
Turkey  
United  States  
 WT/AB/28  
 
- 115 - 
 
 2014  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
EC – Seal Products  (Canada)  
WT/DS400/AB/R  Canada  
 European  Union  Canada  
European  Union  Argentina  
China  
Colombia  
Ecuador  
Iceland  
Japan  
Mexico  
Russia  
United  States  
EC – Seal Products (Norway)  
WT/DS401/AB/R  Norway  European  Union  Norway  
European  Union  Argentina  
China  
Colombia  
Ecuador  
Iceland  
Japan  
Mexico  
Namibia  
Russia  
United  States  
US – Countervailing and 
Anti-Dumping Measures (China)  
WT/DS449/AB/R and Corr.1  China  United  States  United  States  
China  Australia  
Canada  
European  Union   
India 
Japan  
Russia  
Turkey  
Viet Nam  
China – Rare Earths  (US)  
WT/DS431/AB/R  United  States  China  United  States  
China  Argentina  
Australia  
Brazil  
Canada  
Chinese Taipei  
Colombia  
European  Union  
India 
Indonesia  
Korea  
Japan  
Norway  
Oman  
Peru 
Russia  
Saudi Arabia  
Turkey  
Viet Nam  
 WT/AB/28  
 
- 116 - 
 
 2014 (CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
China – Rare Earths  (EU) 
WT/DS432/AB/R  China  --- European  Union  Argentina  
Australia  
Brazil  
Canada  
Chinese Taipei  
Colombia  
India 
Indonesia  
Japan  
Korea  
Norway  
Oman  
Peru 
Russia  
Saudi Arabia   
Turkey  
United  States  
Viet Nam  
China – Rare Earths  (Japan)  
WT/DS433/AB/R  China  --- Japan  Argentina  
Australia  
Brazil  
Canada  
Chinese Taipei  
Colombia  
India 
Indonesia  
European  Union  
Korea  
Norway  
Oman  
Peru 
Russia  
United  States  
US – Carbon Steel (India)  
WT/DS436/AB/R  India United  States  India  
United  States  Australia  
Canada  
China  
European  Union   
Saudi Arabia  
Turkey  WT/AB/28  
 
- 117 - 
 
 2014 (CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – Countervailing Measures 
(China)  
WT/DS437/AB/R  China  United  States  United  States  
China  Australia  
Brazil  
Canada  
European  Union  
India 
Japan  
Korea  
Norway  
Russia  
Saudi Arabia  
Turkey  
Viet Nam  
 WT/AB/28  
 
- 118 - 
 
 2015  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
Argentina – Import Measures (EU)  
WT/DS438/AB/R  Argentina  European  Union  Argentina  
European  Union  Australia  
Canada  
China  
Ecuador  
Guatemala  
India 
Israel  
Japan  
Korea  
Norway  
Saudi Arabia  
Chinese Taipei  
Thailand  
Turkey  
Switzerland  
United  States  
Argentina – Import Measures (US)  
WT/DS444/AB/R  Argentina   United  States  Australia  
Canada  
China  
Ecuador  
European  Union  
Guatemala  
India 
Israel  
Japan  
Korea  
Norway  
Saudi Arabia  
Chinese Taipei  
Thailand  
Turkey  
Switzerland  
Argentina – Import Measures 
(Japan)  
WT/DS445/AB/R  Argentina  Japan  Argentina  
Japan  Australia  
Canada  
China  
Ecuador  
European  Union  
Guatemala  
India 
Israel  
Korea  
Norway  
Saudi Arabia  
Chinese Taipei  
Thailand  
Turkey  
Switzerland  
United  States  
 WT/AB/28  
 
- 119 - 
 
 2015 (CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
US – COOL (Article  21.5 – Canada)  
WT/DS384/AB/RW  United  States  Canada  Canada  
United  States  Australia  
Brazil  
China  
Colombia  
European  Union  
Guatemala  
India 
Japan  
Korea  
Mexico  
New Zealand  
US – COOL ( Article  21.5 – Mexico)  
WT/DS386/AB/RW  United  States  Mexico  Mexico  
United  States  Australia  
Brazil  
Canada  
China  
Colombia  
European  Union  
Guatemala  
India 
Japan  
Korea  
New Zealand  
US – Shrimp  II (Viet Nam)  
WT/DS429/AB/R  Viet Nam  --- United  States  China  
Ecuador  
European  Union  
Japan  
Norway  
Thailand  
India – Agricultural Products  
WT/DS430/AB/R  India --- United  States  Argentina  
Brazil  
China  
Colombia  
Ecuador  
European  Union  
Guatemala  
Japan  
Peru – Agricultural Products  
WT/DS457/AB/R  Peru Guatemala  Guatemala  
Peru Argentina  
Brazil  
China  
Colombia  
Ecuador  
El Salvador  
European  Union  
Honduras  
India 
Korea  
United  States  WT/AB/28  
 
- 120 - 
 
 2015 (CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
China – HP-SSST (Japan)  
WT/DS454/AB/R and Add. 1  Japan  China  China  
Japan  European  Union  
India 
Korea  
Russia  
Saudi Arabia  
Turkey  
United  States  
China – HP-SSST (EU)  
WT/DS460/AB/R and Add. 1  China  European  Union  China  
European  Union  India 
Japan  
Korea  
Russia  
Saudi Arabia  
Turkey  
United  States  
US – Tuna II (Mexico)  
(Article  21.5 – Mexico)  
WT/DS381/AB/RW  United  States  Mexico  Mexico  
United  States  Australia  
Canada  
China  
European  Union  
Guatemala  
Japan  
Korea  
New Zealand  
Norway  
Thailand  
 WT/AB/28  
 
- 121 - 
 
 2016  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
EC – Fasteners (China)  – 
(Article  21.5 – China)  
WT/DS397/AB/RW  European  Union  China  China  
European  Union  Japan  
United  States  
Argentina – Financial Services  
WT/DS 453/AB/R  Panama  Argentina  Argentina  
Panama  Australia  
Brazil  
China  
Ecuador  
European  Union  
Guatemala  
Honduras  
India 
Oman  
Saudi Arabia  
Singapore  
United  States  
Colombia  –Textiles  
WT/DS461 /AB/R  Colombia  --- Panama  China  
Ecuador  
El Salvador  
European  Union  
Guatemala  
Honduras  
Philippines  
United  States  
US – Washing Machines  
WT/DS464/AB/R  United  States  Korea  Korea  
United  States  Brazil  
Canada  
China  
European  Union  
India 
Japan  
Norway  
Saudi Arabia  
Thailand  
Turkey  
Viet Nam  
 WT/AB/28  
 
- 122 - 
 
 2016 (CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
India – Solar Cells  
WT/DS456/AB/R  India --- United  States  Brazil  
Canada  
China  
Ecuador  
European  Union  
Japan  
Korea  
Malaysia  
Norway  
Russia  
Saudi Arabia  
Chinese Taipei  
Turkey  
EU – Biodiesel (Argentina)  
WT/DS473/AB/R  European  Union  Argentina  Argentina  
European  Union  Australia  
China  
Colombia  
Indonesia  
Mexico  
Norway  
Russia  
Saudi Arabia  
Turkey  
United  States  
 WT/AB/28  
 
- 123 - 
 
 2017  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
Russia – Pigs (EU) 
WT/DS475/AB/R  Russia  European  Union  European  Union  
Russia  Australia  
Brazil  
China  
India 
Japan  
Korea  
Norway  
Chinese Taipei  
South Africa  
United  States  
US – Anti-Dumping Methodologies 
(China)  
WT/DS471/AB/R  China  --- United  States  Brazil  
Canada  
European  Union  
India 
Japan  
Korea  
Norway  
Russia  
Saudi Arabia  
Chinese Taipei  
Turkey  
Ukraine  
Viet Nam  
US – Tax Incentives  
WT/DS487/AB/R  United  States  --- European  Union  Australia  
Brazil  
Canada  
China  
Japan  
Korea  
Russia  
EU – Fatty Alcohols (Indonesia)  
WT/DS442/AB/R  Indonesia  European  Union  European  Union  
Indonesia  Korea  
United  States  
Indonesia – Import Licensing 
Regimes  
WT/DS477/AB/R  Indonesia  --- New Zealand  
United  States  Argentina  
Australia  
Brazil  
Canada  
China  
European  Union  
Japan  
Korea  
Norway  
Paraguay  
Singapore  
Chinese Taipei  
 WT/AB/28  
 
- 124 - 
 
 2017 (CONT'D)  
Case  Appellant  Other 
appellant(s)  Appellee(s)  Third 
participant(s)  
Indonesia – Import Licensing 
Regimes  
WT/DS478/AB/R  Indonesia  --- New Zealand  
United  States  Argentina  
Australia  
Brazil  
Canada  
China  
European  Union  
Japan  
Korea  
Norway  
Paraguay  
Singapore  
Chinese Taipei  
 
 
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