RESTRICTED  
  
WT/DSB/M/379  
 
29 August 2016  
(16-4566) Page: 1/31 
Dispute Settlement Body  
23 May 2016    
 
 MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 23 MAY 2016  
Chairman: Mr. Xavier  Carim  (South Africa ) 
Prior to the adoption of the Agenda1 
Table of Contents  
1   SURVEILLANCE OF IMPL EMENTATI ON OF RECOMMENDATION S ADOPTED BY 
THE DSB ................................ ................................ ................................ ...........................  3 
A.  United  States – Anti–dumping measures on certain hot –rolled steel products from 
Japan: Status report by the United  States  ................................ ................................ ..............  4 
B.  United  States – Section  110(5) of the US Copyright Act: Status report by the 
United  States  ................................ ................................ ................................ .....................  4 
C.  European  Communities – Measures affecting the ap proval and marketing of biotech 
products: Status report by the European  Union ................................ ................................ ....... 4 
D.  United  States – Anti–dumping measures on certain shrimp from Viet  Nam: Status 
report by the United  States  ................................ ................................ ................................ .. 5 
E.  United  States – Countervailing duty measures on certain products from China: Status 
report by the United  States  ................................ ................................ ................................ .. 6 
2   UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  
OF 2000: IMPLEMENTATION  OF THE RECOMMENDATIO NS ADOPTED BY THE  DSB ...........  8 
A.  Statements by the European  Union and Japan  ................................ ................................ ... 8 
3   CHINA – CERTAIN MEASURES AFF ECTING ELECTRONIC PA YMENT SERVICES  .............  9 
A.  Statement by the United  States  ................................ ................................ .......................  9 
4   THAILAND – CUSTOMS AND FISCAL M EASURES ON CIGARETTE S FROM 
THE PHILIPPINES  ................................ ................................ ................................ ..........  10 
A.  Statement by the Philippines  ................................ ................................ .......................... 10 
5   APPOINTMENT OF ONE A PPELLATE BODY MEMBER  ................................ ...................  10 
A.  Statement by the Chairman  ................................ ................................ ............................ 10 
6   THE ISSUE OF POSSIBL E REAPPOINTMENT OF ONE APPELLATE BOD Y 
MEMBER  ................................ ................................ ................................ .........................  13 
A.  Statement by the Chairman  ................................ ................................ ............................ 13 
7   DISPUTE SETTLEMENT W ORKLOAD  ................................ ................................ ...........  31 
A.  Statement by the Chairman  ................................ ................................ ............................ 31 
                                                
1 See page 2.  WT/DSB/M/379  
 
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Prior to the Adoption of the Agenda  
 
The representative of India said that his country was compelled to raise an issue prior to the 
adoption of the Agen da. India first wished to refer to its earlier communication to the Chair and 
the United  States on 18  May 2016. In that communication, India had expressed its objection to the 
omission from the Agenda of the present meeting of the status report pertaining to the dispute 
"US – Countervailing Duty Measures on Certain Hot -Rolled Carbon Steel Flat Products from India"  
(DS436). India noted that this was inconsistent with  Article  21.6 of the DSU. The DSB had not 
agreed or decided at its previous meetings that thi s item should be removed from the Agenda. 
Therefore, this came as an unpleasant shock for India. India disagreed with the statement made 
by the United  States at the 22  April 2016 DSB meeting that it had complied with the DSB's 
recommendations in the DS436 dispute. While the United  States might have taken some steps 
with regard to the CVD determinations, however it was abundantly clear that no steps had been 
taken to address the inconsistency of another measure, the US domestic law that had been found 
to be inconsistent with the provisions of the SCM Agreement. India wished to reiterate that the 
issue of the US implementation of the DSB's recommendations in the DS436 dispute was not 
resolved because the United  States had not fully complied with the DSB's reco mmendations in this 
dispute. From a procedural perspective, India also noted that prior to the May DSB meeting, the 
United  States had not filed a status report in accordance with its binding obligation under the last 
sentence of Article  21.6 of the DSU, co mpelling India to raise this issue prior to the adoption of the 
Agenda. This was not a minor procedural issue but a serious systemic issue for the dispute 
settlement mechanism. India urged that the omitted item relating to the DS436 dispute be 
restored on the Agenda under the item on surveillance of implementation of recommendations 
adopted by the DSB until the United  States fully (and not partially) complied by submitting status 
reports to the DSB. Doing otherwise would be rendering Article  21.6 of the DSU  ineffective and 
seriously undermining the surveillance mechanism under the DSU.  
 
The representative of the United  States  said that his country objected to India's intervention 
regarding the DS436 dispute. India had not met the 10 -day rule for inscribing a n item on the 
DSB's Agenda. Further, there was no consensus to adopt the Agenda with such an item. Further, 
as noted in the previous DSB meeting, USDOC's recent determinations fully complied with the 
findings of the Panel and Appellate Body in this dispute  regarding subsidization and the calculation 
of countervailing duty rates.  
 
The representative of India said that his country found it strange that a claim of partial compliance 
without even addressing the DSB's recommendations and rulings could absolve a Member from 
providing further status reports in this dispute. It was interesting to note that the United  States 
had adopted a different standard for implementing the DSB's rulings and recommendations in 
another dispute before the DSB at the present meeting . A look at item  1A of the Agenda 
demonstrated the point. It related to a dispute of over a decade with Japan that involved both "as 
applied" and "as such" findings in the context of anti -dumping. While the United  States had 
claimed compliance in respect o f the USDOC determinations, it had continued submitting status 
reports to the DSB for over 13  years now with respect to US anti -dumping duty statute. Therefore, 
the United  States had not "fully" complied with the DSB's recommendations and rulings in that 
case. This did not warrant, and rightly so, the removal of the item from the Agenda. If the 
yardsticks involving two different complainants were different, this did not augur well for the 
dispute settlement system. Another recent dispute that may be relevan t to highlight in the present 
context was the "United  States – Section  211 Omnibus Appropriations Act of  1998" (Havana Club) 
dispute that had been under surveillance in the DSB until 25  January  2016. The United States, as 
announced at that meeting, had sto pped providing status reports on this matter. However, it was 
important to note that the complainant in this dispute, the European  Union, had stated at the 
25 January  2016 DSB meeting that the EU had not considered the matter to be resolved within the 
mean ing of Article  21.6 of the DSU. In order to resolve the matter, it had stated that the 
United  States would have to repeal Section  211. Further, although the matter had not been 
resolved, in view of the positive developments, and for the time being, the EU had not considered 
it necessary for the United  States to provide monthly reports for inclusion on the Agenda of regular 
DSB meetings. However, the EU had reserved all its rights in relation to this issue. In light of the 
US statement that it was not in ful l compliance, it was understood that should this item be re -
inscribed on the Agenda by the United  States, upon request by the EU, it would be placed under 
Agenda item  1. In the present dispute, India had not agreed to such removal. Furthermore, the WT/DSB/M/379  
 
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 United  States had not fully complied with the DSB's recommendations. India urged the DSB to 
include the item on the DSB's Agenda and requested the United  States to submit status reports as 
per Article  21.6 of the DSU. India looked forward to the United  States sub mitting a status report at 
the next DSB meeting. India also continued to maintain that this item must remain on the DSB's 
Agenda and India would raise the issue at the forthcoming DSB meeting until the United  States 
achieved full compliance.  
 
The represent ative of the European  Union  recalled that, at its previous meeting, the DSB had 
agreed to revert to this matter. Therefore, this matter should not be discussed at this point. He 
was puzzled about this situation because if the DSB had collectively agreed to  revert to this 
matter, it was surprising to have this discussion prior to the adoption of the Agenda. He believed 
that the facts should be clarified.  
 
The representative of the United  States  said that his country was likewise deeply puzzled by 
India's cou nterproductive interventions on this matter. The United  States was ready to confer with 
India to discuss its concerns. However, as noted before, India had failed to meet the 10 -day rule 
to inscribe an item on the Agenda. Therefore, its statements at the pr esent meeting were highly 
misplaced. The United  States looked forward to discussions with India about this matter.  
 
The representative of India said that his country looked forward to working with the United  States 
in preparation for the next DSB meeting.  
 
Also p rior to the adoption of the Agenda  
 
The item concerning the Panel Report in the dispute on: " European  Union – Anti-Dumping 
Measures on Biodiesel from Argentina " was removed from the proposed Agenda following the EU's 
decision to appeal the Panel Rep ort. 
 
The DSB took note  of the statements and adopted  the Agenda, as amended.  
 
 
1  SURVEILLANCE OF IMPL EMENTATION OF RECOMM ENDATIONS ADOPTED BY  THE DSB 
A.  United  States – Anti–dumping measures on certain hot –rolled steel products from Japan: 
Status report by  the United  States (WT/DS184/15/Add.160)  
 
B.  United  States – Section  110(5) of the US Copyright Act: Status report by the United  States 
(WT/DS160/24/Add.135)  
 
C.  European  Communities – Measures affecting the approval and marketing of biotech products: 
Status report by the European  Union (WT/DS291/37/Add.98)  
 
D.  United  States – Anti–dumping measures on certain shrimp from Viet  Nam: Status report by the 
United  States (WT/DS404/11/Add.46)  
 
E.  United  States – Countervailing duty measures on certain products  from China: Status report by 
the United  States (WT/DS437/18/Add.1)  
 
 
1.1.  The Chairman  noted that there were five sub -items under this Agenda item concerning status 
reports submitted by delegations pursuant to Article  21.6 of the DSU. He recalled that Article  21.6 
required that: "Unless the DSB decides otherwise, the issue of implementation of the 
recommendations or rulings shall be placed on the Agenda of the DSB meeting after six  months 
following the date of establishment of the reasonable period of time and shall remain on the DSB's 
Agenda until the issue is resolved". Under this Agenda item, he invited delegations to provide 
up-to-date information about compliance efforts and to focus on new developments, suggestions 
and ideas on progress towards the resolut ion of disputes. He reminded delegations that, as 
provided for in Rule  27 of the Rules of Procedure for DSB meetings: "Representatives should make 
every effort to avoid the repetition of a full debate at each meeting on any issue that has already 
been full y debated in the past and on which there appears to have been no change in Members' 
positions already on record".  WT/DSB/M/379  
 
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 A.  United  States – Anti–dumping measures on certain hot –rolled steel products from 
Japan: Status report by the United  States (WT/DS184/15/Add .160)  
1.2.  The Chairman  drew attention to document WT/DS184/15/Add.160, which contained the 
status report by the United  States on progress in the implementation of the DSB's 
recommendations in the case concerning US  anti-dumping measures on certain hot -rolled s teel 
products from Japan.  
1.3.  The representative of the United  States  said that his country had provided a status report in 
this dispute on 12  May 2016, in accordance with Article  21.6 of the DSU. The United  States had 
addressed the DSB's recommendations and r ulings with respect to the calculation of anti -dumping 
margins in the hot -rolled steel anti -dumping duty investigation at issue. With respect to the 
recommendations and rulings of the DSB that had yet to be addressed, the US Administration 
would work with the US Congress with respect to appropriate statutory measures that would 
resolve this matter.  
1.4.  The representative of Japan  said that his country thanked the United  States for its statement 
and its status report submitted on 12 May 2016. Japan referred to i ts previous statements that 
this issue should be resolved as soon as possible . 
1.5.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
B.  United  States – Section  110(5) of the US Copyright Act: Status report by  the 
United  States (WT/DS160/24/Add.135)  
1.6.  The Chairman  drew attention to document WT/DS160/24/Add.135, which contained the 
status report by the United  States on progress in the implementation of the DSB's 
recommendations in the case concerning Section  110(5 ) of the US Copyright Act.  
1.7.  The representative of the United  States  said that his country had provided a status report in 
this dispute on 12  May 2016, in accordance with Article  21.6 of the DSU. The US Administration 
would continue to confer with the Europe an Union, and to work closely with the US Congress, in 
order to reach a mutually satisfactory resolution of this matter.  
1.8.  The representative of the European Union  said that the EU thanked the United  States for its 
status report and its statement made at the  present meeting. The EU referred to its previous 
statements made under this Agenda item. The EU wished to resolve this case as soon as possible.  
1.9.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
C.  Europ ean Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European  Union (WT/DS291/37/Add.98)  
1.10.   The Chairman  drew attention to document WT/DS291/37/Add.98, which contained the 
status report by the European  Union on progress in the implementation of the DSB's 
recommendations in the case concerning measures affecting the approval and marketing of 
biotech products.  
1.11.   The representative of the European  Union  said that two GMOs2 had been voted with no 
opinion result in  the Standing Committee on 25  April 2016 and were scheduled for a vote at the 
Appeal Committee on 2  June 2016. More generally, and as stated many times before, the EU 
recalled that the EU's approval system was not covered by the DSB's recommendations and 
rulings.  
1.12.   The representative of the United  States  said that his country thanked the EU for its status 
report and its statement made at the present meeting. As the United  States had noted repeatedly 
at past DSB meetings, EU measures affecting the approval and  marketing of biotech products 
                                                
2 Maize Bt11 × MIR162 × MIR604 × GA21 and cut flowers carnation line SHD-27531 -4. WT/DSB/M/379  
 
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 remained of substantial concern to the United  States. Unfortunately, the situation was only getting 
worse and was having a dramatic impact on trade. Significant delays in the consideration of 
biotech products were restricting  US exports of agricultural products to the EU. Shipments of corn 
had been restricted for many years and now, trade in US exports of soybean was being affected. 
As it had noted in April, the United  States had serious concerns regarding the EU's treatment o f 
approval applications for three varieties of biotech soybeans. These varieties were critical for US 
farmers because they included important technologies that promoted weed control. Yet, the 
approval of these varieties was stalled in the EU system. In par ticular, the EU's scientific body had 
concluded extensive scientific reviews of these soybean varieties in June and July  2015. The 
reviews had confirmed that these biotech products were safe for use in the EU. The EU, however, 
continued to delay the final approval of these products. The United  States urged the EU to 
complete these approvals as soon as possible. These delays on soybean approvals were currently 
restricting contracts for sales of US soybeans to the EU. These delays not only harmed US farmers, 
but would also affect European farmers – who needed US soybeans to feed their livestock. In 
short, the EU's unjustified delays were ignoring the needs of both US and EU farmers. The 
United  States again asked the EU to ensure that its biotech approval measu res were consistent 
with its obligations under the SPS  Agreement.  
1.13.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
D.  United  States – Anti–dumping measures on certain shrimp from Viet  Nam: Status 
report by the United  States (WT/DS404/11/Add.46)  
1.14.   The Chairman  drew attention to document WT/DS404/11/Add.46, which contained the 
status report by the United  States on progress in the implementation of the DSB's 
recommendations in the case concerning US anti -dumpi ng measures on certain shrimp from 
Viet Nam.  
1.15.   The representative of the United  States  said that his country had provided a status report in 
this dispute on 12  May 2016, in accordance with Article  21.6 of the DSU. As the United  States had 
noted at past DSB m eetings, in February  2012 the US Department of Commerce had modified its 
procedures in a manner that addressed certain findings in this dispute. The United  States would 
continue to consult with interested parties regarding matters related to the other 
recommendations and rulings of the DSB.  
1.16.   The representative of Viet Nam said that her country thanked the United  States for its 
statement and its status report in this dispute. Viet  Nam continued to expect the relevant parts of 
the DSB's rulings and recommendat ions in this dispute to be implemented by the United  States in 
the context of the implementation of the second shrimp dispute (DS429). Any delay in 
implementation of the DS429 dispute may also delay the implementation of relevant parts of the 
DS404 dispute . 
1.17.   The representative of Cuba said that her country supported the statement made by 
Viet Nam. Cuba was concerned about the lack of compliance with the DSB's recommendations and 
rulings in this dispute. Cuba urged the United  States to comply with the DSB's r ulings and 
recommendations in this dispute.  
1.18.   The representative of the Bolivarian Republic of Venezuela  said that her country supported 
the statement made by Viet  Nam. Venezuela took note of the US status report of 12  May 2016 and 
wished to refer to its pre vious statements made under this Agenda item. Venezuela reiterated the 
importance of prompt compliance with the DSB's recommendations and rulings. The prolonged 
lack of compliance undermined Members' trust in the dispute settlement system. Venezuela urged 
the United  States to take necessary measures in order to settle this dispute and to report to the 
DSB on the measures and actions it intended to take in order to resolve this matter.  
1.19.   The DSB took note  of the statements and agreed  to revert to this matter a t its next regular 
meeting.  WT/DSB/M/379  
 
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 E.  United  States – Countervailing duty measures on certain products from China: Status 
report by the United  States (WT/DS437/18/Add.1)  
1.20.   The Chairman  drew attention to document WT/DS437/18/Add.1, which contained the status 
report  by the United  States on progress in the implementation of the DSB's recommendations in 
the case concerning the US countervailing duty measures on certain products from China.  
1.21.   The representative of the United  States  said that his country had provided a sta tus report in 
this dispute on 12  May 2016, in accordance with Article  21.6 of the DSU. The United  States 
recalled that the findings in this dispute involved fifteen separate countervailing duty (CVD) 
determinations by the US Department of Commerce. On 14  December  2015, the US Trade 
Representative had requested USDOC to issue new determinations as necessary to render the 
challenged measures consistent with the recommendations and rulings of the DSB. The 
United  States had completed the implementation process with respect to nine separate 
investigations, as well as with respect to one "as such" finding in this dispute. Specifically, the 
US Department of Commerce had issued new final determinations with respect to eight separate 
CVD investigations, and the US Tr ade Representative had completed the implementation process 
by directing USDOC to implement these determinations. In one other investigation covered by the 
DSB's recommendations and rulings, the US Department of Commerce had revoked the CVD 
order, making u nnecessary any determination in that proceeding. The United  States had also 
completed implementation with respect to the one "as such" finding adopted by the DSB. As 
detailed in the status report, the US Department of Commerce had withdrawn the approach 
addressed by that finding prior to the DSB's adoption of the reports in this dispute. On 
26 April 2016, the US Department of Commerce had completed new final determinations with 
respect to two additional CVD investigations. On 19  May 2016, the US Department of Commerce 
had completed new final determinations with respect to the remaining four CVD investigations. The 
United  States was working to complete the remaining steps in the implementation process as soon 
as possible.  
1.22.   The representative of China  said that  his country thanked the United  States for its status 
report concerning US implementation of the DSB's recommendations and rulings in this dispute. 
China wished to make a few brief comments. The United  States acknowledged that it had not 
implemented the DS B's recommendations and rulings within the reasonable period of time. 
Unfortunately, this was not the first time that the United  States had failed to adhere to the 
reasonable period of time in disputes relating to the application of trade remedies by the U SDOC. 
The United  States had failed to adhere to the reasonable period of time in the dispute: 
"United  States – Anti-Dumping and Countervailing Duties" (DS379), as well as in disputes brought 
by other Members concerning US anti -dumping and countervailing du ty measures. China was 
particularly troubled by the fact that the United  States had not adhered to a reasonable period of 
time that had been established pursuant to arbitration under Article  21.3(c) of the DSU. The entire 
point of initiating arbitration un der Article  21.3(c) was that the parties were unable to agree upon 
the reasonable period of time. By the express terms of the DSU, the decision of the Arbitrator was 
"binding". By not implementing the DSB's recommendations and rulings within the reasonable  
period of time established by the Arbitrator, the United  States had violated not only China's 
substantive right to obtain compliance with the covered agreements, but also its procedural right 
to have the reasonable period of time established through bindi ng arbitration. Arbitration under 
Article  21.3(c) served no purpose if Members felt free to disregard the Arbitral award, as the 
United  States had done in the present case. It was not as if the reasonable period of time 
established through arbitration was somehow unreasonable. The reasonable period of time of 
14 months and 16  days granted by the Arbitrator was already significantly longer than the 
reasonable period of time that China had considered appropriate in this case. The reasonable 
period of time gra nted by the Arbitrator was only two weeks less than the 15  months that 
Article  21.3(c) established as a guideline for the maximum amount of time that an arbitrator 
should ordinarily grant, and yet the United  States had still failed to adhere to it. It was now 
16 months past the DSB's adoption of the Panel and Appellate Body Reports in this matter, and 
the United  States had yet to implement the recommendations and rulings contained in the 
Reports.  
1.23.   China was further troubled by the fact that there had been lo ng periods of time over the 
past 16  months in which the USDOC had made no apparent progress towards achieving 
compliance. The USDOC had not even initiated its Section  129 compliance proceedings until nearly WT/DSB/M/379  
 
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 three and a half months after the DSB had adopted  the Panel and Appellate Body Reports in this 
matter.  
1.24.   The USDOC had issued questionnaires and had obtained responses to those questionnaires 
between May and July  2015, but had not issued the first of its preliminary determinations until late 
February  2016.  One had to wonder what steps the USDOC had been taking towards compliance 
during the entire second half of 2015. The USDOC had issued the last of its preliminary 
determinations on 7  March  2016, but only got around to issuing the last of its final Section  129 
determinations on Thursday of the previous week. Notwithstanding its arguments to the arbitrator 
as to why it had required an extraordinarily long amount of time to bring itself into compliance, the 
United  States appeared to have gone about the process  in an entirely desultory fashion. China was 
regrettably left with the impression that the United  States attached a low priority to complying 
with the DSB's recommendations and rulings in this matter or, worse, had actively sought to 
prolong the period dur ing which it remained out of compliance with the covered agreements. 
Either way, the conduct of the United  States in this matter was incompatible with the DSU's 
overarching goal of obtaining a "prompt settlement" of disputes between Members. China called 
upon the United  States not only to implement the DSB's recommendations and rulings in this 
dispute as quickly as possible, but also to ensure that the USDOC complied with the reasonable 
periods of time in future disputes relating to US trade remedy determin ations, whether those 
reasonable periods of time were established by agreement or through arbitration. Adherence to 
reasonable periods of time was essential to the proper functioning of the dispute settlement 
system. It was incumbent upon each Member to en sure that its domestic authorities carried out 
their work so as to permit the Member to comply with the DSB's recommendations and rulings no 
later than the expiration of the reasonable period of time established in each case.  
1.25.   As for the substance of the Se ction 129 determinations that the USDOC had issued thus far, 
China deeply regretted that those determinations would not bring the United  States into 
compliance with the SCM Agreement. It was for this reason that China had sought consultations 
with the Unit ed States earlier that month. With regard to the issue of "public body", the USDOC 
continued to misapprehend the DSB's rulings concerning the proper interpretation of 
Article  1.1(a)(1) of the SCM Agreement. Most importantly, the USDOC had failed to give ef fect to 
the Appellate Body's observation that the central inquiry in respect of whether a particular entity 
was a "public body" was whether that entity "is vested with authority to exercise governmental 
functions".3 With regard to the issue of benchmark "d istortion" under Article  14(d) of the 
SCM Agreement, the USDOC had, for all intents and purposes, ignored the DSB's finding that the 
question of "distortion" was a question of whether the government possessed and had exercised 
market power so as to cause b enchmark prices to be artificially low. The USDOC's new approach to 
the question of "distortion" bore no resemblance whatsoever to the requirement under 
Article  14(d) that the adequacy of remuneration "shall be determined in relation to prevailing 
market c onditions for the good…in the country of provision". The USDOC's approach to the issues 
of public body and benchmark "distortion" should be of concern to all Members. In recent years, 
the USDOC had routinely countervailed the alleged provision of inputs fo r less than adequate 
remuneration on the basis of its erroneous interpretations of Articles  1 and  14. These unlawful 
"inputs for LTAR" determinations had become central to the USDOC's countervailing duty practice. 
More generally, the USDOC had been finding  benchmark prices all over the world to be "distorted" 
by one factor or another and resorting to out -of-country benchmarks on that basis, making routine 
what was meant to be a rare exception to the preference for using domestic market prices in the 
country  of provision. The USDOC had taken a small opening in the interpretation of Article  14(d), 
established by the Appellate Body in the "US – Softwood Lumber IV" dispute, and used it as the 
basis for establishing an entire system of artificially inflated count ervailing duty margins. It was 
past time for these abuses to stop. China would conduct the consultations with the United  States 
under Article  21.5 of the DSU to discuss the above -mentioned and other concerns that China had 
with the USDOC's implementation m easures. China looked forward to the US effective engagement 
in resolving this dispute.  
1.26.   The representative of the United  States  said that his country regretted that China 
questioned the US commitment to implementing the DSB's recommendations and rulings in  this 
dispute. The record showed that China had no basis for doing so. Due to China's decision to bring 
one single, combined dispute challenging multiple CVD determinations on multiple grounds, rather 
                                                
3 Appellate Body Report, "US – Anti-Dumping and Countervailing Duties " (China ), para graph  318; 
Appellate Body Report, "US – Carbon Steel " (India), n.  515. WT/DSB/M/379  
 
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 than 15  separate disputes each covering one CVD and adv ancing multiple claims, this single 
dispute was one of the most extensive to be faced by the dispute settlement system. Nonetheless, 
through the expenditure of extensive administrative resources, the United  States had managed to 
complete implementation wit h respect to the majority of the CVD proceedings within the 
reasonable period of time. As had been explained, the United States was committed to completing 
the remaining work as soon as possible. Regarding China's consultations request, the 
United  States h ad received China's consultations request and was preparing to engage with China. 
In reviewing this request, however, it appeared that China was seeking to rewrite WTO rules and 
to prevent action to counteract its injurious subsidization, which was the sub ject of significant 
global concerns. The United  States considered that its redeterminations complied with WTO rules, 
and would continue to implement according to WTO rules as it took action against Chinese 
economic distortions.  
1.27.   The representative of China  said that t he United  States had frequently referred to this 
dispute as one of the largest disputes in the history of the dispute settlement system, pointing to 
the fact that the DSB made findings of inconsistency in respect of 15  different countervailing d uty 
determinations. While it was true that there were 15  different countervailing duty determinations 
at issue in this dispute, the fact was that the DSB's findings related to the USDOC's repeated 
application of the same unlawful standards and methodologie s for evaluating the existence and 
extent of a subsidy. This dispute was not a dispute about 15  distinct CVD determinations. Like the 
zeroing disputes before it, this dispute was a dispute about the same unlawful standards and 
methodologies, applied over a nd over again. The USDOC's preliminary Section  129 compliance 
determinations bore this out. With regard to the two central issues in this dispute, "public body" 
under Article  1.1(a)(1), and benchmark "distortion" under Article  14(d), the USDOC had issued 
purportedly "new" rationales that applied across the board to all of the countervailing duty 
determinations in question. Just as the USDOC had applied a single, uniform standard in the 
"public body" and "distortion" determinations that had been the subject of the original DSB's 
recommendations and rulings, the USDOC had once again applied a single, uniform standard in its 
re-examination of those two issues. The dispute between the United  States and China was, 
fundamentally, a dispute about the consistency of  these standards with the requirements of the 
SCM Agreement. Thus, despite the attempt by the United  States to portray this dispute as a 
dispute of enormous scope and complexity, the truth was that it was a relatively straightforward 
dispute concerning the  interpretation and application of Articles  1.1 and 14(d) of the 
SCM Agreement. In any event, the nature of the dispute and the extent of the US compliance 
obligations in this matter were factors that the Arbitrator had already taken into account in 
establ ishing the reasonable period of time. There simply was no excuse for the failure of the 
United  States to implement the DSB's recommendations and rulings within that time -frame.  
1.28.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
2  UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  OF 2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE  DSB 
A.  Statements by the European  Union and Japan   
2.1.  The Chairman  said that this item was on the Agenda of the prese nt meeting at the request of 
the European  Union and Japan, and he invited the respective representatives to speak.  
2.2.  The representative of the European  Union  said that t he EU wished to inform the DSB that the 
authorized level of retaliation against the Unite d States had been adjusted as from 1  May 2016. 
The regulation containing EU measures had been published on 28  April 2016 and had been 
circulated to the DSB. The EU, once again, requested the United States to stop transferring anti -
dumping and countervailin g duties to the US  industry. Every disbursement that still took place was 
clearly an act of non -compliance with the DSB's recommendations and rulings. The EU renewed its 
call on the United  States to abide by its clear obligation under Article  21.6 of the D SU and to 
submit status reports in this dispute.  
2.3.  The representative of Japan  said that, s ince t he distributions under the CDSOA had been 
continuing , Japan, once again, urged the United  States to stop the illegal distributions in order to 
resolve this long-standing dispute. As it had stated at previous DSB meetings, Japan was of the WT/DSB/M/379  
 
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 view that the United  States was under obligation to provide the DSB with a status report in this 
dispute, in accordance with Article  21.6 of the DSU.  
2.4.  The representative of India said that his country shared the concerns of the EU and Japan. 
The WTO -inconsistent disbursements continued unabated to the US domestic industry. India was 
of the view that this item should continue to remain on the DSB's Agenda until such time that full 
compliance was achieved in this dispute.  
2.5.  The representative of Canada  said that his country wished to refer to its previous statements 
made under this Agenda item. Canada's position had not changed.  
2.6.  The representative of China  said that her country thanked  the EU and Japan for placing this 
item on the Agenda of the present DSB meeting . China urged the United  States to fully comply 
with the DSB's rulings in this dispute . 
2.7.  The representative of Brazil  said that her country thanked the EU and Japan for keeping this 
item on the DSB's Agenda. Brazil, as one of the parties to these disputes, was of the view that the 
United  States was under an obligation to discontinue the disbursements that still took place under 
the Continued Dumping and Subsidy Offset Act of  2000. Brazil noted that the United  States would 
argue that the Deficit Reduction Act did not permit the distribution of duties collected on goods 
entered after 1  October  2007, and therefore that there was no need for the item to be kept on the 
DSB's Agenda. Bu t what was important in this dispute was that, as of now, disbursements, in the 
millions of dollars, continued to be made. The fact that these disbursements may be related to 
investigations initiated before the repeal of the Act did not mean that they were  somehow 
excluded from compliance obligations. Since the DSB had confirmed the illegal nature of the 
disbursements under the Byrd Amendment more than ten years ago, any disbursement to 
petitioners should have been discontinued. Only then would compliance b e achieved in this 
dispute.  
2.8.  The representative of the United States  said that, as his country had noted at previous DSB 
meetings, the Deficit Reduction Act, which included a provision repealing the Continued Dumping 
and Subsidy Offset Act of 2000, had been  enacted into law in February  2006. Accordingly, the 
United  States had taken all actions necessary to implement the DSB's recommendations and 
rulings in these disputes. The United  States recalled, furthermore, that the EU, Japan, and other 
Members had ackn owledged that the Deficit Reduction Act did not permit the distribution of duties 
collected on goods entered after 1  October  2007, over eight years ago. The United  States 
therefore did not understand the purpose for which the EU and Japan had inscribed thi s item on 
the Agenda of the present meeting. With respect to comments regarding further status reports in 
this matter, as it had already explained at previous DSB meetings, the United  States failed to see 
what purpose would be served by further submission of status reports which would repeat, again, 
that the United  States had taken all actions necessary to implement the DSB's recommendations 
and rulings in these disputes.  Indeed, as these very WTO Members had demonstrated repeatedly 
when they had been a res ponding party in a dispute, there was no obligation under the DSU to 
provide further status reports once a Member announced that it had implemented those DSB 
recommendations and rulings, regardless of whether the complaining party disagreed about 
complianc e. 
2.9.  The DSB took note  of the statements.  
3  CHINA – CERTAIN MEASURES AFF ECTING ELECTRONIC PA YMENT SERVICES  
A.  Statement by the United  States  
3.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the United  States and he i nvited the representative of the United  States to speak.  
3.2.  The representative of the United  States  said that his country continued to have serious 
concerns that China had failed to bring its measures into conformity with its WTO obligations. The 
United  State s recalled that the DSB had adopted its recommendations and rulings in this dispute in 
August  2012, and the reasonable period of time had expired in July  2013. But, as the 
United  States had noted at past meetings of the DSB, China continued to impose its b an on foreign WT/DSB/M/379  
 
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 suppliers of electronic payment services ("EPS") by requiring a license, while at the same time 
failing to issue the specific measures or procedures for obtaining that license. Meanwhile, China's 
domestic supplier continued to do business as usual. The United  States previously had taken note 
of an April  2015 State Council decision, which indicated China's intent to open up its EPS market 
following issuance of implementing regulations by the People's Bank of China and the China 
Banking Regulato ry Commission. That decision, however, had been issued over a year ago, and, to 
date, China had not issued the implementing regulations. As required under its WTO obligations, 
China must adopt the implementing regulations necessary for allowing the operati on of foreign EPS 
suppliers in China. Furthermore, once adopted, any regulations must be implemented in a 
consistent and fair way. The United  States continued to seek the prompt issuance and 
implementation of all measures necessary to permit foreign EPS su ppliers to do business in China. 
The United  States also expected that the applications of foreign EPS suppliers would be approved 
without delay.  
3.3.  The representative of China  said that her country regretted that the United States had, once 
again, brought thi s matter before the DSB. China referred to its statements  made  at previous DSB 
meetings under this Agenda item. China wished to emphasize that it had taken all necessary 
actions and had fully implemented the DSB's recommendations and rulings in this disput e. China 
hoped that the United  States would reconsider the systemic implications of its position.  
3.4.  The DSB took note  of the statements.  
4  THAILAND – CUSTOMS AND FISCAL M EASURES ON CIGARETTE S FROM 
THE PHILIPPINES  
A.  Statement by the Philippines  
4.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the Philippines and he invited the representative of the  Philippines to speak.  
4.2.  The representative of the Philippines  said that her country had frequently expressed its deep 
conce rn about a series of compliance issues that remained outstanding in this dispute, over four 
years after the expiry of Thailand's implementation deadline. Throughout that four -year period, the 
Philippines had consistently sought a bilateral resolution to th ese issues . Unfortunately, Thailand 
had not addressed the Philippines' concerns. Accordingly, earlier in May 2016, the Philippines had 
formally requested consultations, as communicated to Members in document WT/DS371/17 . 
Consultations were scheduled to tak e place the following week in Bangkok . Consistent with the 
terms of the sequencing arrangement agreed between the parties, the Philippines looked forward 
to reporting on the results of those consultations to the DSB.  
4.3.  The representative of Thailand  said tha t his country wished to inform the DSB that the 
consultations, as requested b y the Philippines, were scheduled and that it would be premature to 
comment on the matter which would be the subject of consultations.  Thailand looked forward to 
constructive disc ussions leading to a mutually satisfactory outcome to this dispute . 
4.4.  The DSB took note  of the statements.  
5  APPOINTMENT OF ONE A PPELLATE BODY MEMBER  
A.  Statement by the Chairman  
5.1.  The Chairman  said that he wished to briefly reiterate what had already been stat ed in the fax 
from the Selection Committee, which he had circulated on behalf of the Selection Committee on 
12 May 2016. He recalled that a Selection Committee had been established by the DSB at its 
meeting on 25  January  2016 and had been requested to carr y out a selection process on the 
appointment of a new Appellate Body Member to replace Ms. Yuejiao Zhang whose second term of 
office would expire on 31  May 2016. The Selection Committee had also been requested to make its 
recommendation on a replacement be fore 12  May 2016 in time for the DSB meeting of 
23 May 2016. In carrying out that request, the Selection Committee had conducted thorough 
interviews with seven nominated candidates on 7  and 8  April 2016 with a view to identifying those 
individuals who poss essed the qualifications and expertise as required by the DSU for Appellate WT/DSB/M/379  
 
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 Body members. As part of the selection process, the Committee had met individually with 
50 delegations to hear their views on the candidates. The Committee had also received in wri ting 
the views of 23  delegations. Throughout the process, the Committee had based its work on the 
guidelines, the rules and procedures contained in the DSU, and documents WT/DSB/1 and 
WT/DSB/70 governing the selection and appointment of Appellate Body memb ers. As he had 
indicated in his fax, the Selection Committee regretted that despite its best efforts, it was not in a 
position to recommend a candidate that would enjoy the consensus of the entire Membership. 
Nevertheless, the Selection Committee had not g iven up on the possibility that it may still find a 
consensus on one of the seven candidates and, therefore, would need more time to consult further 
on this matter.  
5.2.  The representative of Australia  said that his country wished to express its sincere 
appreci ation for the work of the Selection Committee to date in interviewing candidates and 
holding confessionals with WTO Members. While it was disappointing that the Selection Committee 
was not yet in a position to recommend a candidate to the DSB at the presen t meeting, Australia 
would certainly urge the Committee to continue its work. Australia was pleased with the 
high-quality range of candidates put forward to fill the vacancy on the Appellate Body. The quality 
of the candidates reflected the importance of t he work of the Appellate Body. As the Selection 
Committee continued its important work, including in consultation with Members, Australia would 
encourage all Members to place priority on the proper functioning of the Appellate Body and to 
show flexibility in helping find a candidate who could fill the opening on the Appellate Body with 
consensus support. Australia also, in that context, emphasised the importance of merit in 
considering the most suitable replacement.  
5.3.  The representative of Japan  said that his  country thanked the Chairman for his statement 
reporting on the state of play in the selection process for appointment of a new Appellate Body 
member. Japan wished to express its appreciation for the hard work that the Selection Committee 
had devoted thus  far and to the Chairman's leadership on this very important matter. Japan took 
note of the Chairman's statement, and in particular, his report on the Selection Committee's 
continued efforts to seek a consensus on one of the seven candidates and the need t o give more 
time to the Selection Committee to do so. The 2016 selection process was highly competitive, 
given that all seven candidates were highly qualified. This had made the task of the Selection 
Committee extremely challenging. Japan understood that t he Selection Committee required further 
consultations to find a candidate who could be appointed by the DSB by consensus. That being 
said, as the Chairman was well aware, three appeals had been pending before the Appellate Body 
and a new appeal had just be en filed. Given its heavy workload, the dispute settlement system 
could not afford the luxury of having an unfilled vacancy for the extended period of time. The 
dispute settlement system was one of the main features and pillars of the rules -based multilate ral 
trading system. All Members agreed that the high -quality work and proper functioning of the 
Appellate Body, which served as the final adjudicator in the WTO dispute settlement, ultimately 
depended on the qualities and qualifications of individuals who would serve in the office. In that 
regard, Japan would emphasize that an individual's quality and qualification should be the guiding 
principle in the selection and appointment of an Appellate Body member. The task of the Appellate 
Body was too important t o be entrusted to someone who was selected based on anything other 
than his or her merits. Japan trusted that the Selection Committee would continue to carry out its 
work fairly, impartially, independently and promptly and to successfully recommend the bes t 
possible candidate who could not only enjoy the blessing of the entire Membership in this selection 
process, but also someone with the ability and talent to produce highest -quality reports and to 
serve as a broad representative of the entire Membership. Japan wished to express its sincere 
appreciation to Ms. Yuejiao Zhang for her eight years of distinguished service as an Appellate Body 
member. During her term, Ms. Zhang had made tremendous contributions to the work of the 
Appellate Body and to the rules -based multilateral trading system. Japan wished her all the best in 
the future endeavours.  
5.4.  The representative of the European  Union  said that the EU noted the link between this 
Agenda item and the issues to be addressed under the next Agenda items, and in particular the 
workload issue to be raised under "Other Business". The EU stressed that a fully operational 
Appellate Body was essential for the proper functioning of the WTO dispute settlement system. The 
EU thanked the Selection Committee for its work co ncerning the appointment of a new Appellate 
Body member, for the post to be vacated by Ms. Yuejiao Zhang. The EU had carefully reviewed the 
merits of all candidates. In particular, the EU appreciated the opportunity of meeting the 
candidates, which enabled  it to form a view on their expertise and qualities. On that basis, the EU WT/DSB/M/379  
 
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 believed that the Membership had a sufficient choice among the candidates to appoint a person of 
the highest calibre and in line with the requirements of Article  17.3 of the DSU. Th erefore, the EU 
thanked the Selection Committee for its continued efforts to seek a consensus on this matter.  
5.5.  The representative of Guatemala  said that his country thanked the Chairman for his report. 
Guatemala noted that this was not the first time that a Selection Committee was not in a position 
to recommend a candidate because it considered that no candidate would enjoy the consensus of 
the entire Membership. This was problematic and the DSB needed to take prompt action on this 
matter. He noted that Art icle 17.3 of the DSU provided that the Appellate Body shall comprise of 
"persons of recognized authority, with demonstrated expertise in law, international trade and the 
subject matter of the covered agreements generally". It was customary that the Selecti on 
Committee carried out a selection process for which it conducted thorough interviews with all 
nominated candidates, with a view to identifying those individuals who possessed the qualifications 
and expertise required by the DSU. Following the interviews , the Selection Committee also carried 
out "appropriate consultations" with Members, pursuant to document WT/DSB/1. Once the 
interviews and consultations were finalized, the Selection Committee had to make a 
recommendation to the DSB.  Subsequently, the DS B then appointed a new Appellate Body 
member. In no document or legal provision had Guatemala found that the task of the Selection 
Committee was to ensure that a candidate would enjoy the consensus of the entire Membership. 
Guatemala was of the view that " appropriate consultations" with Members should be focused on 
the merits, personal qualifications and credentials of the candidates. It was for the DSB (and not 
for the Selection Committee) to decide whether a candidate would enjoy the consensus of the 
entire Membership. It was also for the DSB to discuss with Members objecting the appointment of 
the recommended candidate and the reasons for their objection. From the explanation given by 
the Selection Committee, it seemed that there were objections to the ma jority, if not to all 
candidates. The DSB would not know this with any degree of precision. Members objecting to the 
candidates would remain anonymous, maintaining an incentive for any Member to object to any 
future candidate. The reasons for objection wou ld also remain unknown, which created a perfect 
incentive for any Member to object a candidate for reasons other than the qualifications and 
expertise required under the DSU. Perhaps, it was time to start serious discussions about the 
interpretation of doc ument WT/DSB/1 and to separate the mandate of the Selection Committee 
and the responsibilities of the WTO Members and the DSB.  
5.6.  The representative of China  said that his country attached great importance to, and highly 
appreciated the work of, the Appellate  Body. In that regard, China wished to thank the Selection 
Committee for its hard work over the past months. China was firmly convinced that the 
qualifications of the candidates met the requirements of Article  17.3 of the DSU and that they 
would add value to the system. At the same time, China wished to reiterate that the 
representative balance of the level of development in the composition of the Appellate Body was 
clearly stipulated in the 1995 DSB decision on the establishment of the Appellate Body. Chin a 
firmly believed that the representative balance of Appellate Body membership between developed 
and developing -country Members should be fully maintained and duly respected. China would 
continue to work with the Selection Committee in its further work in order to complete the process 
for the appointment of a new Appellate Body member.  
5.7.  The representative of Hong Kong, China  said that Hong  Kong, China appreciated that the 
Selection Committee had been working hard to seek consensus. Hong  Kong, China was 
disap pointed that the appointment process had to be extended, especially since it believed that all 
seven candidates for the current appointment exercise were highly qualified. Hong  Kong, China 
shared the concern that a prolonged vacancy would affect the effici ent operation of the Appellate 
Body, which had a very heavy workload. Hong  Kong, China was ready to work constructively with 
the Chairman and other Members in order to find a satisfactory solution as soon as possible.  
5.8.  The representative of the United  State s said that his country thanked the Chairman and the 
other members of the Selection Committee for their hard work to date. The United  States wished 
to also thank the Members who had nominated candidates, and appreciated the willingness of 
candidates to mee t with delegations and discuss their candidacy. The United  States looked forward 
to hearing from the Selection Committee as its work continued.  
5.9.  The representative of Mexico  said that his country thanked the Selection Committee. He said 
that as a former mem ber of the Selection Committee he was well aware of how difficult the work 
of the Selection Committee could be. It was not an easy task, in particular since there were seven WT/DSB/M/379  
 
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 candidates. Mexico had interviewed all the seven candidates and considered that th ey were very 
qualified. Mexico understood the complications inherent in this situation and believed that it was 
the DSB's responsibility to decide who was to be the next Appellate Body member. However, if the 
Selection Committee were to present Members wit h seven candidates, this would politicize the 
process much more than if the Committee continued to work as it did at present, by seeking to fill 
this vacancy with the candidate who possessed the best qualification and merits. Like the EU, 
Mexico also consi dered that this Agenda item and the next one were closely linked and noted that 
there was a heavy workload in front of the Appellate Body. If Members did not promptly resolve 
both this issue under this Agenda item and the next, they would find themselves i n an extremely 
complicated situation. Mexico, therefore believed that all Members must make every effort to 
support the Selection Committee to enable it to reach a conclusion as soon as possible.  
5.10.   The representative of Indonesia  said that his country thanke d the Chairman for his 
statement on the selection process for the appointment of a new Appellate Body member to 
replace Ms. Yuejiao Zhang of China, whose second term of office would soon expire. Indonesia had 
been closely following the process carried out by the Selection Committee. In that respect, 
Indonesia wished to express gratitude to the Selection Committee which had dedicated its utmost 
energy and effort to carry out the selection process in a transparent and inclusive manner. 
Indonesia acknowledged that it was a very difficult task for the Selection Committee to select one 
of the Appellate Body candidates based on several criteria and parameters that had been set for 
that purpose. The adherence to the principles of independence and impartiality as we ll as the high 
qualifications and competence that had been well -demonstrated by candidates during the selection 
process had made the work of the Selection Committee even more challenging. It was regrettable 
to learn, however, that after in -depth interviews  of candidates and consultations with Members, 
the Selection Committee was unable to recommend a candidate to be appointed by the DSB. In 
that respect, Indonesia agreed with the Chairman that the Selection Committee should be given 
more time to further con sult with Members, with a view to finding consensus on one of the seven 
candidates. Indonesia also encouraged Members to demonstrate their constructiveness and 
flexibilities in the upcoming consultations to be held by the Selection Committee, so as to find  a 
solution. Indonesia believed that it was in the interest of all Members and in the interest of the 
well-functioning of Appellate Body as well as the dispute settlement mechanism, to ensure that the 
principles of the multilateral trading system, as embod ied in the WTO agreements, were fully 
upheld.  
5.11.   The representative of Brazil  said that his country had met with all the candidates for the 
Appellate Body vacancy and had the opportunity to assess their abilities in light of the DSU 
requirements. There was no  need to emphasize the crucial importance of the DSB for the proper 
functioning of the WTO. Brazil hoped that the successful outcome of this selection process could be 
achieved soon so that the current workload problem did not get even more critical.  
5.12.   The D SB took note  of the statements.  
6  THE ISSUE OF POSSIBL E REAPPOINTMENT OF O NE APPELLATE BODY ME MBER  
A.  Statement by the Chairman  
6.1.  The Chairman  recalled that at the  22 April 2016 DSB meeting, he had announced that the 
issue of possible reappointment of one App ellate Body member would be on the Agenda of the 
present meeting. He said that he would wish to update delegations on the current status. He 
recalled that, in accordance with the DSB's decision of 25  January  2015, contained in document 
WT/DSB/70, the DSB C hairman was requested to carry out consultations on the possible 
reappointment of Mr.  Seung Wha Chang for a second four -year term. Since then, both his 
predecessor and h e had carried out informal consultations with interested delegations on this 
matter. As  a result of those consultations, at the April  2016 DSB meeting, he had announced his 
intention to host a very informal meeting on 10  May 2016 to enable delegations to pose questions 
to Mr. Chang. A total of 26  delegations, including several EU member Stat es, had participated in 
that meeting. At the outset of the meeting, he had read out the ground rules for the process, 
based on the process conducted in 2015 by the previous DSB Chairman. Following his introductory 
remarks, two delegations had made statemen ts regarding the nature of the meeting and had 
expressed their views on the issue of reappointment, as set out in Article  17.2 of the DSU. 
Subsequently, several delegations had posed questions to which Mr. Chang had given his replies, 
and the meeting was t hen concluded. The following day, on 11  May 2016, the Chair was informed WT/DSB/M/379  
 
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 by one delegation that it would be unable to support Mr.  Chang's reappointment. That delegation's 
position and reasons had been made public. Delegations would have also received a 
communication by fax from the Chairman of the Appellate Body, dated 19  May 2016, which 
included a letter that the Appellate Body members had sent the DSB Chair with their views on 
these recent developments. If this present situation remained unchanged and if there was no 
agreement amongst Members on the matter of reappointment, Mr. Chang's term as an Appellate 
Body member would expire on 31  May 2016. He then invited delegations to make statements.  
6.2.  The representative of the United  States  said that his country t hanked the Chairman for his 
work in carrying out consultations on the possible reappointment of one Appellate Body member, 
Mr. Chang. As Members may have been aware, after a careful review of Mr. Chang's service on the 
Appellate Body, the United  States had  concluded that it did not support reappointing him to a 
second term, and it would object to any proposal to reappoint him. The United  States thanked 
Mr. Chang for his willingness to meet with WTO Members to discuss his service on the Appellate 
Body. The U nited States commended his willingness to make efforts to serve the world trading 
system for the past four years. Unfortunately, however, the United  States did not consider that his 
service reflected the role assigned to the Appellate Body by WTO Members i n the WTO 
agreements. Any failure to follow scrupulously the role Members had assigned through these 
agreements undermined the integrity of, and support for, the WTO dispute settlement system. In 
its statement at the present meeting, the United  States woul d elaborate on the US position and 
address questions that had been raised in useful discussions the United  States had had with other 
WTO Members. As an initial matter, it was important to underscore that reappointment was not 
automatic. He recalled that Ar ticle 17.2 of the DSU provided that each member of the Appellate 
Body "may be reappointed once". Action by the DSB to reappoint required a consensus of WTO 
Members.4 Numerous WTO Members, from the very early years of the WTO, and prior DSB Chairs, 
had made  the point that reappointment was not automatic.5 Rather, it was a decision entrusted to 
Members, and it was an important responsibility. Given the critical role the dispute settlement 
system played in the WTO, and the Appellate Body's role within that sys tem, the United  States 
considered that this was not a decision for Members to take lightly. With respect to the 
reappointment under consideration, the United  States had reviewed carefully the member's service 
on the divisions for the various appeals and ha d conducted significant research and deliberation. 
Based on this careful review, the United  States had concluded that his performance did not reflect 
the role assigned to the Appellate Body by Members in the DSU.  
6.3.  The role of the Appellate Body as part of t he WTO's dispute settlement system was to decide 
appeals of panel reports to help achieve "[t]he aim of the dispute settlement mechanism [ ,…] to 
secure a positive solution to a dispute", as set out in DSU Article  3.7.6 The DSU reminded panels 
and the Appel late Body not once, but twice, that "in their findings and recommendations, the panel 
and Appellate Body cannot add to or diminish the rights and obligations provided in the covered 
agreements".7 Yet the reports on which this member had participated did no t accord with the role 
of the Appellate Body. The United  States had previously explained at DSB meetings its concerns 
with the adjudicative approach in a number of appellate reports with which he had been involved. 
That is, s etting aside the substance of t he reports, the United  States had been troubled and had 
raised systemic concerns about the disregard for the proper role of the Appellate Body and the 
WTO dispute settlement system in these reports. These concerns had arisen in disputes in which 
the United  States had been a party and in those in which it had not. Although  the representatives 
of Members were no doubt aware of those systemic concerns raised by the United  States in past 
DSB meetings, the United States considered it would be useful to summarize  briefly the comments 
                                                
4 DSU, Article  2.4 ("Where the rules and procedures of this Understanding provide for the DSB to take a 
decision, it shall do so by consensus.").  
5 See, e.g., Minutes of 27  Octob er and 3  November  1999 DSB Meeting, WT/DSB/M/70, pages 34 -35; 
Minutes of 21  and 23  July 2003 DSB Meeting, WT/DSB/M/153, paragraph 99; Minutes of 20  June 2005 DSB 
Meeting, WT/DSB/M/192, paragraphs.57 and 58; Minutes of 25  November  2013 DSB Meeting, WT/DSB/M /339, 
paragraphs 1.1, 1.4 and 1.7; and Minutes of 25  November  2015 DSB Meeting, WT/DSB/M/370, paragraphs 
7.1, 7.5 and 7.9.  
6 DSU, Article  3.7 ("The aim of the dispute settlement mechanism is to secure a positive solution to a 
dispute."); see idem, Article  3.4 ("Recommendations or rulings made by the DSB shall be aimed at achieving a 
satisfactory settlement of the matter in accordance with the rights and obligations under this Understanding 
and under the covered agreements.").  
7 DSU, Articles  3.2 ("Recommend ations and rulings of the DSB cannot add to or diminish the rights and 
obligations provided in the covered agreements."), 19.2 (" In accordance with paragraph  2 of Article  3, in their 
findings and recommendations, the panel and Appellate Body cannot add to or diminish the rights and 
obligations provided in the covered agreements.").  WT/DSB/M/379  
 
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 it had made in the DSB in relation to four of those reports. The United  States would therefore 
circulate in the room documents containing  those previous statements.  
6.4.  First8, in the recent DS453 Appellate Body Report in the financial se rvices dispute between 
Panama and Argentina, more than two -thirds of the Appellate Body's analysis, 46  pages, was in 
the nature of obiter  dicta. The Appellate Body had reversed the Panel's findings on likeness and 
had said that this reversal rendered moot all the Panel's findings on all other issues, including 
treatment no less favorable, an affirmative defense, and the prudential exception under the 
GATS.9 Yet, the Appellate Body report then went on at great length to set out interpretations of 
various pro visions of the GATS. These interpretations had served no purpose in resolving the 
dispute, they were appeals of moot panel findings. Thus, more than two -thirds of the Appellate 
Body's analysis was comprised simply of advisory opinions on legal issues. The Appellate Body was 
not an academic body that may pursue issues simply because they were of interest to them or 
may be to certain Members in the abstract. Indeed, as the Appellate Body itself had said many 
years ago, it was not the role of panels or the App ellate Body to "make law" outside of the context 
of resolving a dispute10, in effect, to use an appeal as an occasion to write a treatise on a WTO 
agreement. But that was what the report had done in this appeal.  
6.5.  Second11, in DS430, a dispute in which the Uni ted States had been the complaining party and 
had prevailed, the United  States noted that the Appellate Body Report had engaged in a lengthy 
abstract discussion of a provision of the SPS  Agreement without ever tying that discussion to an 
issue on appeal, a nd had even expressed "concerns" in that discussion on findings of the Panel 
that had not been raised by either party in the appeal. Furthermore, during the hearing, the 
Appellate Body had devoted considerable time to an issue that the parties and the thir d parties 
had agreed had not been raised on appeal, involving an item that was not on the record, that had 
not been raised by either party in its arguments, and had not been examined by the panel and was 
not the subject of any panel findings. The questioni ng was of such concern that the United  States 
had felt compelled to devote its entire closing statement to urging the Appellate Body not to opine 
on that non -appealed issue.12 It was not the role of the Appellate Body to engage in abstract 
discussions or to  divert an appeal  away from the issues before it in order to employ resources on 
matters that were not presented in, and would not help resolve, a dispute.  
6.6.  A third example had occurred in DS437.13 The United  States had explained its concerns that 
the Appell ate Body Report suggested a view of dispute settlement that departed markedly from 
that set out in the DSU and reflected in numerous prior reports. There , the Appellate Body report 
had rejected a party's appeal, but then went on to reverse the Panel Report  and to find a breach 
on the basis of an argument and approach entirely of the Appellate Body's creation. This approach 
suggested that panels and the Appellate Body were to conduct independent investigations and 
apply new legal standards, regardless of wha t either party actually argued to the panel or 
Appellate Body. But that was not right. Under the DSU, panels and the Appellate Body were to 
consider the evidence and arguments put forward by the parties to make an objective assessment 
of the matter before it. The Appellate Body is not there to make the case for either party or to act 
as an independent investigator or prosecutor. Fourth , in DS44914, the Appellate Body Report had 
taken a very problematic and erroneous approach to reviewing a Member's domestic law, risking 
turning the WTO dispute settlement system into one that would substitute the judgement of WTO 
adjudicators for that of a Member's domestic legal system as to what was lawful under that 
Member's domestic law. It was inappropriate for a WTO adju dicator to say it would decide the 
                                                
8 Statement by the United  States at 9  May 2016 DSB Meeting,  
https://geneva.usmission.gov/wp -content/uploads/2016/05/May -9-DSB.pdf . 
9 General Agreement on Trade in Services ("GATS").  
10 "US – Wool Shirts and Blouses" (AB), WT/DS33/AB/R and Corr. 1, at 19.  
11 Statement by the United  States at 19  June 2015 DSB Meeting,  
https://geneva.usmission.gov/wp -content/uploads/2015/06/Jun19.DSB_.Stmt_.as -delivered.Public.pdf ; 
Minutes of 19  June 2015 DSB Meeting, WT/DSB/M/364, paragraphs 7.7.  
12 Closin g Statement of the United  States at the Oral Hearing in "India – Measures Concerning the 
Importation of Certain Agricultural Products from the United  States" (AB -2015-2 / DS430) (20  March  2015), 
https://ustr.gov/sites/default/files/files/Issue_Areas/Enforcement/DS/Pending/US.Oral.Stmt.Closing.pdf . 
13 Statement by the United  States at 16  January  2015 DSB Meeting,  
https://geneva.usmission.gov/wp -content/uploads/2015/01/Jan16.DSB_.Stmt_.as -
delivered.Fin_.Public.pdf ; Minutes of 16  January  2015 DSB Meeting, WT/DSB/M/355, paragraph s 1.10 -1.14. 
14 Statement by the United  States at 22  July 2014 DSB Meeting,  
https://geneva.usmission.gov/wp -content/uploads/2014/07/July22 -DSB-Stmt-as-delivered.pdf ; Minutes 
of 22 July 2014 DSB Meeting, WT/DSB/M/348, paragraphs 7.6 -7.8. WT/DSB/M/379  
 
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 "right" result under a Member's  law, in the abstract, while ignoring key constitutional principles of 
that Member's domestic legal system, but that was what the Appellate Body had done. It was 
notable that the panel had u sed a correct approach of examining the constitutional principles of 
the domestic legal system, but the Appellate Body report had ignored that analysis and instead 
had spent 60  pages making its own analysis of domestic law.  
6.7.  These US DSB statements had conv eyed the US deep concern with the adjudicative approach 
used in those reports. The United  States also was concerned about the manner in which this 
member had served  at oral hearings, including that the questions posed had spent a considerable 
amount of tim e considering issues not on appeal or not focused on the resolution of the matter 
between the parties. As had been mentioned, the US closing statement in the hearing in DS430 
was addressed precisely to this concern. It was not difficult to ascertain from t he questions posed 
by a member of a division at an oral hearing that the member was associated with the views 
expressed in an Appellate Body report related to those questions. Together , the appeals in which 
the member had participated indicated that he had  not been willing to adhere to the proper role of 
the Appellate Body. This was something that should be of concern to all WTO Members. Many 
delegates had recognized in recent conversations, as well as others over the years, that WTO 
adjudicators should be focused on addressing those issues necessary to resolve the dispute. It was 
important to keep in mind that WTO Members could not have confidence in a system where WTO 
adjudicators overstepped the boundaries agreed by WTO Members in the DSU and the WTO 
Agreement. It was also important to consider whether these types of actions had contributed to 
the complexity of the disputes and had thereby exacerbated the workload problems facing the 
Appellate Body that had made it difficult for Members to get their trade disputes resolved in a 
timely manner. In conversations with delegations, the United States had heard a suggestion that 
WTO Members should  not consider the reports signed by a particular Appellate Body member in 
considering whether that individual should be  reappointed. The letter faxed to delegations by other 
Appellate Body members also raised this issue. There was something quite ironic about the idea 
that WTO Members should not be able to even consider the reports signed by an Appellate Body 
member in for ming a view on the quality  of that member's service. The only function of the 
Appellate Body, as set out in Article  17 of the DSU, was to consider an appeal and issue a report. 
As to the suggestion that an individual Appellate Body member's service should not be linked to 
the specific appeals in which that member had participated, the United States would ask – what 
better basis for forming views on that service could there be? Was it really being suggested that 
WTO Members should ignore the actual, most rel evant evidence of how someone was conducting 
themselves as an Appellate Body member?  
6.8.  The United  States had also heard an argument that it was inaccurate to hold an individual 
Appellate Body member accountable for the reports that he signed because others h ad also signed 
the same report. The suggestion appeared to be that because more than one person expressed the 
same views, none of the members should be held responsible for endorsing those views. This was 
not how the system worked and did a disservice to e ach Appellate Body member who had worked 
hard to be sure that a report accurately reflected their views. In fact, in a number of instances an 
Appellate Body member had provided separate, individual views in a report. The United  States did 
not see how holdi ng a member accountable for the views they had endorsed and their actual 
service carried a risk for the trust WTO Members placed in the independence and impartiality of 
the Appellate Body. To the contrary, WTO Members' trust was not built on a vacuum. It w as based 
on the actual performance of the Appellate Body. It would help build and maintain trust if each 
WTO Member had confidence that each member  of the Appellate Body was adhering to the 
mandate that WTO Members had given to the Appellate Body. Furtherm ore, the United  States had 
heard a few delegations suggest that reappointment should be treated as though it were automatic 
in order to avoid interfering with the "independence" of the Appellate Body. As the United  States 
had already explained, from the ve ry first time an Appellate Body member was being considered  
for reappointment, WTO Members had been clear that reappointment was not automatic. Prior 
DSB Chairs had reiterated this. The United  States was disappointed at the suggestion that the DSU 
should n ow be re -interpreted  to reduce the role of the DSB and WTO Members in the WTO dispute 
settlement system. This was not a suggestion the United  States could support or a way to sustain 
confidence in the WTO or its dispute settlement system. He recalled that Article  17.3 of the DSU 
provided that an Appellate Body member was to be "unaffiliated with any government" and was 
not to participate in any disputes that would create a direct or indirect conflict of interest. If this 
was what was meant when referring to  the "independence" of the Appellate Body, then it was 
difficult to see how the authority of the DSB to decline to reappoint a member would cause that 
member to become affiliated with any government or to develop a conflict of interest in a dispute. WT/DSB/M/379  
 
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 Moreov er, WTO Members had charged WTO adjudicators to be "independent and impartial " 
through the Rules of Conduct Members had adopted.15 Thus, to be independent was a 
responsibility of each Appellate Body member, and that obligation was compatible with and, in th e 
words of the Rules, "strengthen[s]" the "operation of the DSU" and "in no way modif[ies]" the 
DSU.16 Thus, Appellate Body members fulfilled their responsibility to act independently by serving 
in their individual capacity, unaffiliated with a government, and by avoiding any conflicts of 
interest. These values were not and could not be affected by WTO Members fulfilling their 
responsibility under the DSU to decide whether to reappoint an Appellate Body member by 
assessing that member's service in terms of t he role assigned to the Appellate Body in the WTO 
agreements.  
6.9.  It was also worth noting that the type of assessment for a reappointment was not unique. An 
assessment of an individual who may serve on the Appellate Body for an additional four years at 
the re appointment stage was similar to the type of interaction and assessment that occurred 
whenever a candidate for the Appellate Body was first considered for appointment. Carrying out 
this responsibility with respect to reappointment did not affect the indepe ndence and impartiality 
of that individual any more at this stage than it did with an appointment to the Appellate Body in 
the first instance. The United  States wanted to be very clear on one point, the US position on this 
issue was not one based on the re sults of those appeals in terms of whether a measure was found 
to be inconsistent or not. The United  States was a frequent user of the WTO dispute settlement 
system and recognized that there could always be legitimate disagreement over the results. 
Instead , the concerns raised were important, systemic issues that went to the adjudicative 
approach and proper role of the Appellate Body and the dispute settlement system. The US 
position was based on the approach chosen by the Appellate Body in each appeal on w hich this 
member had served and whether that approach accorded with the role that WTO Members had 
assigned to the Appellate Body in agreeing to the DSU. To put this issue in perspective, the 
United  States would ask each DSB Member the following question: i f a candidate for appointment 
to the Appellate Body were to say openly that he or she would issue Appellate Body reports that 
did what the reports the United  States had discussed did – that is , the candidate would issue 
reports where more than two -thirds o f the report were obiter  dicta on issues not necessary to 
resolve the dispute, the candidate would issue reports engaging in abstract interpretation and 
raise concerns on matters not under appeal, the candidate would reject an appeal by a party but 
then re verse a panel and find a breach on a basis not argued by that party, and the candidate 
would issue reports substituting the Appellate Body's judgement for what was lawful under a 
Member's domestic law for the view of that legal system itself – would your government support 
that candidate for appointment? The United  States would think most WTO Members would say no. 
But if such a candidate was not suitable for appointment in the WTO dispute settlement system, 
the United  States did not think the candidate was any more suitable for reappointment. It was for 
this reason that the United  States would not be able to accept this reappointment.  
6.10.   The United  States along with other delegations had received the letter on this issue from 
other Appellate Body members. The U nited States had already addressed the points in that letter, 
which was sent even before the United  States had explained its views to the DSB, as it was doing 
at the present meeting. The United  States considered that the action by these Appellate Body 
memb ers to interject themselves in a decision in which they had no role was, to say the least, 
unfortunate. The DSU assigned the decision on the appointment or reappointment to WTO 
Members in the DSB, not to the Appellate Body. The Appellate Body members' lett er acknowledged 
this in its final paragraph, yet they sent this letter directly to WTO Members and in advance of the 
present discussion anyway. The United  States could well understand that these Appellate Body 
members wished to show their appreciation  for a colleague. However, the fact that these Appellate 
Body members were seeking to provide views on this issue was, regrettably, another instance in 
which Appellate Body members were acting outside the role assigned to them by WTO Members in 
the DSU. In clos ing, the United  States wished to thank all Members for their careful attention to 
these remarks. As mentioned, the United  States had been raising with Members these concerns  
with the operation of the WTO dispute settlement system, and in particular with th e adjudicative 
approach of certain Appellate Body reports over several years. The United  States appreciated the 
engagement it had had with delegations already and looked forward to engaging further with all 
                                                
15 Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of 
Disputes ("Rules of Conduct"), WT/DSB/RC/1, paragraph II.1 (Governing Princip le). 
16 Rules of Conduct, paragraph I (Preamble), paragraph II.1 ("These Rules shall in no way modify the 
rights and obligations of Members under the DSU nor the rules and procedures therein.").  WT/DSB/M/379  
 
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 Members on these critical issues of how to reinfo rce the aim and proper adjudicative approach of 
the dispute settlement system.  
6.11.   The representative of Korea  said that his country thanked the Chairman for his briefing on 
the current situation.  Korea also expressed its appreciation to the United States for presenting its 
position in great detail. In fact, Korea had learned a couple of weeks ago that the United  States 
would not support the reappointment of Prof. Seung Wha Chang to the Appellate Body. Korea was 
surprised because until then , as far as it had un derstood,  no other Member ha d raised any issue 
with the  reappointment of Prof. Chang.  Indeed , it seem ed to be a widely -held view that he had 
served the Appellate Body and the WTO honourably over the past four years. The other m embers 
of the Appellate Body had also firmly attested to the integrity, impartiality and character of 
Prof. Chang, as seen in their joint letter of 18  May 2016 addressed to the DSB Chair. Korea had 
asked the United  States to reconsider its position. Korea was therefore extremely disap pointed 
that the United  States had confirmed its opposition at the present meeting. Korea was not arguing 
that Appellate Body members had a right or a privilege  to be reappointed . WTO Members had a 
right to agree or disagree with the reappointment  of any A ppellate Body member . However, in 
view of the importance of the Appellate Body  as a WTO institution , if this right to disagree were 
ever to be exercised, it should be for compelling and legitimate reasons. The United  States was 
telling Members  in effect th at it opposed the reappointment of Prof. Chang because it believed that 
Prof. Chang had restricted the rights or expanded the obligations of WTO Members through the 
Appellate Body decisions in which he had been involved. Korea was of the view that this US 
position was very inappropriate and at the same time raised serious systemic concerns. First, an 
Appellate Body member should not be singled out for  any criticism directed at the Appellate Body 
for its reports. As the Appellate Body members had confirmed i n their letter, an Appellate Body 
decision could not be attributed to a particular member, because it was the decision of the 
Appellate Body.  In that respect, Korea also wished to recall that Article  17 of the DSU provided 
that the proceedings in the Appel late Body shall be confidential and opinions expressed in the 
Appellate Body reports shall be anonymous.  
6.12.   Second, this opposition was, to put it bluntly, an attempt to use reappointment as a tool to 
rein in Appellate Body members for decisions they made on the bench. Its message was loud and 
clear: "If Appellate Body members made decisions that did not conform to US perspectives, they 
were not going to be reappointed". Needless to say, if the US position  was allowed to prevail, it 
would seriously undermine t he independence and integrity of the Appellate Body. First -term 
Appellate Body members may have to reflect more on how their rulings would be viewed by major 
Members rather than on the merits of the cases. It would also create a dangerous precedent that 
other WTO Members may be tempted to follow. The Appellate Body members, in their joint letter, 
warned as follows: "[W]e are concerned about the tying of an Appellate Body m ember's 
reappointment to interpretations in specific cases, and even doing so publicly . The dispute 
settlement system depends upon WTO Members trusting the independence and impartiality of 
Appellate Body members. Linking the reappointment of a member to specific cases could affect 
that trust". Korea agreed. For an adjudicator to be truly in dependent, he or she must have 
assurance that his or her decisions, made in good conscience, would not result in what was 
effectively removal from office. The US opposition contravened this most fundamental judicial 
principle. This alone should be sufficie nt grounds for Members to reject the US opposition. Yet 
there was another aspect of its position, one that was no less significant, which  concerned Korea  
deeply . It related to how Members addressed differing viewpoints in this institution. The 
United  State s claimed that the Appellate Body rulings that Prof. Chang had been involved with 
went beyond the Appellate Body mandate, which was to adjudicate appeals and clarify existing 
provisions of the covered agreements without adding to or diminishing the rights and obligations 
provided in those agreements. The United  States at the present meeting presented a few cases 
where it believed that the Appellate Body had made decisions not consistent with its mandate. 
Korea was ready to discuss the US position, because o n some elements it may agree with the US 
position, and on others it may disagree with the US position. But Korea did not believe that this 
was the right time or place to engage in legal discussions on whether the US views were correct. 
The key issue to add ress at the present meeting was how to deal with this concern in a systemic 
way and consider whether it was appropriate to link this issue to reappointment. The request that 
the A ppellate Body should remain within the boundary of its mandate was in itself legitimate. Yet 
to argue that some Appellate Body decisions had not been consistent with the Appellate Body 
mandate and opposed reappointment of an Appellate Body member who had participated in those 
decisions on that basis concealed one important fact. Th ere were diverse views among WTO 
Members on the role and jurisdiction of the Appellate Body , as was often seen in the different WT/DSB/M/379  
 
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 responses of Members to Appellate Body  decisions. In other words, there was no agreement on 
where exactly were the boundaries of  the Appellate Body mandate.  Under these circumstances, 
the positive  and constructive way forward would be to continue efforts on building consensus 
through discussions. Instead, the United  States had chosen the very different path of imposing its 
own per spective on WTO Members and the Appellate Body through the removal of an A ppellate 
Body member.  That approach was misguided. Replacing Appellate Body members would not 
eliminate differences in views regarding  the consistency of specific Appellate Body deci sions with 
its mandate.  
6.13.   Korea wished to propose that Members launch a discussion devoted to the question of the 
boundaries of appellate review with the goal of finding a common understanding. Korea believed 
that this was the right way to address the concer ns of Members, including the United  States, while 
maintaining the integrity and independence of the Appellate Body.  This course of action may not 
produce answers immediately. However, Members needed to resist the temptation for an 
immediate fix that would in the end cause severe harm to the WTO dispute settlement system . 
Members had an instructive experience in this regard. When the Appellate Body had adopted an 
additional procedure regarding amicus  curiae  briefs during the appeal in the "EC – Asbestos" 
(DS135) dispute, a large majority of Members had thought that the Appellate Body had crossed its 
limits. They had brought this issue to the General Council at its meeting on 22  November  2000. 
The outcome of the General Council discussions was communicated to the Appellate Body. The 
Appellate Body in turn respected the predominant view of the Membership, and withdrew its 
attempt to accept the amicus  curiae  submissions. Korea did understand and respect the intention 
of the United  States to raise an important iss ue relating to the dispute settlement system. Good 
intentions, however, did not justify a wrong course of action. Korea could not find justification in 
the US opposition to reappoint  Prof. Chang. Korea  urged the United  States to reconsider and 
withdraw its  opposition.  Korea's first priority was to restore an environment where the sitting and 
incoming Appellate Body members could do their jobs properly without looking over their 
shoulders. Korea requested that the DSB continue discussions on reappointment so  that Members 
may find a solution that would safeguard the integrity of the Appellate Body. Korea was ready to 
discuss this matter and any other systemic concerns raised by Members in constructive ways. 
Korea looked forward to working with all Members , including the Unites  States , to find ways to 
make the dispute settlement system better.  
6.14.   The representative of the European  Union  said that t he EU was seriously concerned about 
the US veto against the reappointment of Mr. Chang on the basis of his alleged trac k record on the 
Appellate Body -- alleged because rulings of the Appellate Body were made in a collegiate manner. 
This was unprecedented and posed a very serious threat to the independence and impartiality of 
current and future Appellate Body members. In t he EU's view, in order to ensure the independence 
of the Appellate Body, reappointments should be more or less automatic  if the Appellate Body 
member indicated that they were available to server for a second term of office. In particular, the 
reappointment  process needed to be conducted in a way that respected this independence. This 
implied that Appellate Body members could not be scrutinized on the basis of the positions they 
may or may not have taken when performing their judicial function. The ground ru les the DSB 
Chairman had read out on 10  May 2016, which were accepted by all Members, attested to that. 
The EU supported the reappointment of Mr. Chang for a second four -year term, and had hoped 
that this reappointment could still take place. However, on t he basis of what had just been said, 
that hope was now in vain. The situation was very serious and arguably the damage had already 
been done. The events of the past days may taint any future reappointment process. Therefore, 
the EU believed that it was of utmost importance that a systemic solution be found to this 
problem. The Appellate Body must remain fully operational and the independence and impartiality 
of its members must be preserved. In the EU's view, the repetition of the current crisis in future 
reappointment processes would be untenable. The EU looked forward to discussing with other 
Members solutions to the systemic problem caused by the events of the past few days.  
6.15.   The representative of Mexico  said that his country thanked the United  States for the 
explanations it had provided, although those explanations had not, in the least, allayed Mexico's 
concerns. The situation created by the United  States had extremely troubling systemic 
implications. The impartiality and independence of the Appellate Bod y were vital in a system 
governed by the rule of law. Mexico was one of the main users of the dispute settlement system, 
but it would be just as concerned if it were not, as the system was being put at risk. As it had 
stated on previous occasions, although  the reappointment of Appellate Body members was not 
automatic, Mexico believed that there were only limited circumstances in which reappointment WT/DSB/M/379  
 
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 would not take place. The very important reason for not reappointing an Appellate Body  member - 
apart from an Appellate Body  member not wishing or being unable to continue, or if one Member 
wished to nominate another candidate for the post -  would be if there was consensus among the 
Membership that an Appellate Body  member was not fulfilling his/her duties. In re ality there were 
no rules regarding reappointments, there were only guidelines. In November  2015, the former 
DSB Chairman had set the ground rules with regard to meetings between the WTO Membership 
and Appellate Body members for renewal. These rules had be en applied by the current DSB Chair 
on 10  May 2016. Those rules in no way provided for the dismissal of an Appellate Body member. It 
was, however, surprizing that Appellate Body  decisions in some cases were being attributed to one 
Appellate Body member, wh ile such decisions were made by the division assigned to each case, 
comprising three Appellate Body members, and were discussed by all the members of the 
Appellate Body in accordance with the principle of collegiality. The Appellate Body operated with 
checks and balances. It was dangerous for the system to have these checks and balances 
undermined by threats to the independence of members and threats that members would have to 
be re-examined halfway through their terms. Mexico called upon Members to act wit h maturity and 
moderation and to avoid putting the DSB and the system at risk. There were many aspects of the 
dispute settlement system that had to be reviewed and many had been discussed in the DSB 
Special  Session. For 16  years, Members had been discussin g possible changes to the DSU, 
including to the Appellate Body, but there had never been any discussion on possible rules for 
reappointments. The reappointment of Appellate Body  members had never been discussed in the 
DSU negotiations. Suddenly Members fou nd themselves confronted with this issue when an 
Appellate Body member was vetoed by one Member. Mexico, once again, was very concerned that 
the "cherry on the cake" or the "jewel in the crown", was being put at risk.  
6.16.   The representative of Brazil  said that  his country noted that the issue facing the present 
meeting was not simply another regular item on the DSB's Agenda.  This item concerned one very 
important pillar of the WTO and the principles on which the Appellate Body rested, namely, the 
independence and impartiality of its members. These fundamental principles must be preserved, 
as all Members knew that pessima est principii corruptio, ex quo alia dependent  ("worst of all is 
the corrosion of the principles on which the rest depend"). What was at stake  was whether all 
Members could continue to use the dispute settlement system, and the Appellate Body, with 
confidence regarding its legal competence, independence, impartiality and integrity. The 
underlying question which must be addressed was how could a member of the Appellate Body 
discharge properly and independently its functions if worried, tempted or put under pressure to 
satisfy specific opinions of Members throughout its mandate, so as to be reappointed? Brazil 
recalled that reappointments came afte r a selection process that had become over time a true 
drilling process by numerous WTO Members. Brazil had always believed that if reappointments to a 
second mandate at the Appellate Body were not automatic, in view of Article  17.2 of the DSU, they 
should  be understood as quasi -automatic. Only a specific set of objective circumstances could 
justify the non -reappointment, such as health conditions, malfeasance, a member's desire not to 
continue, etc. Brazil recalled that this quasi -automatic nature of the r eappointment process had 
been the rule in the WTO for many years. This important feature was also attested to Brazil by 
several of the original members of the Appellate Body. The reasons heard, however, for the 
objection to the reappointment of an Appellat e Body member were of a very distinct nature and 
had nothing to do with the circumstances mentioned previously. They were very far from what 
would be considered acceptable reasons, directed as they were towards the alleged excesses or 
errors in some Appell ate Body reports. These reasons were thus directed to the content of the 
decisions. Moreover, these criticisms were attributed to one specific member of a division tasked to 
decide a case, a division which was composed of three members; who, in turn, were part of the 
Appellate Body composed of seven members. As Members were aware, these seven members 
were collegially responsible for each report. In the letter sent to the DSB Chairman the previous 
week, the seven members of the Appellate Body sensibly remind ed Members that "our reports are 
reports of the Appellate Body". In Brazil's view, there was nothing wrong in finding faults with a 
report, in criticizing certain lines of reasoning in some decisions. There was also nothing wrong in 
expressing one opinion or its opposite about the Appellate Body being judicially active, about it 
restricting or expanding rights of WTO Members. Similarly, there was a myriad of different 
opinions about the Appellate Body completing the analysis or refraining from doing so; abo ut the 
Appellate Body engaging too much in obiter  dicta or sticking to the strict confines of an issue. 
There were ongoing discussions about the complexity of the issues being brought to the 
assessment and decision of the Appellate Body, the workload and t he concern for the high -quality 
reports; parties and third parties to a dispute complained about too many questions being posed in WT/DSB/M/379  
 
- 21 - 
 
 the hearings and reports that were becoming too long. This list, this " cahier de doléances", could 
go on and on.  
6.17.   This kind of  debate was to be expected and it was healthy that Members put forward 
constructive opinions with a view to making the system work better. In fact, the DSB, among 
other fora, was the modern and privileged " agora" of discussion, the forum where Members coul d 
jointly exercise their right to praise or criticize, harshly if needed be, the Appellate Body and the 
panels, or even one another. This 20  year-old " agora"  was no minor achievement for the 
international trade community. It should be preserved and used as  the privileged " locus" to expose 
Members concerns and discuss their points of view. What did not seem to be fitting, however, was 
to object to the reappointment of a member for a second term of office on the grounds that certain 
legal decisions, by certai n individuals in a collegial body, were wrong or not satisfactory or, worse, 
because they did not correspond to a Member's specific interests or expectations. That was 
counter to the independence which was inherent in any decision -making instance, whicheve r legal 
nature one may wish to assign to it. If the alleged reasons for objection were of that calibre, then 
the integrity of the WTO's main adjudicatory body was clearly jeopardized. One illuminating way of 
demonstrating the flawed bias of that position w as to submit its explanatory core to the famous 
Kantian saying, also useful among nations: " act according to that principle whereby you can, at 
the same time, wish that it should become universal law" . It was evident that if all Members had 
acted according  to the logic and arguments used in the present instance not to reappoint the 
member of the Appellate Body in question, that body would soon be transformed into a tool of 
Members' own interests, something that could not be the universal law Members strived  for, the 
general rule, which allowed for trustworthy and impartial decision -making in an international 
forum . The single most important element which sustained the system was trust, which, if the 
current state of affairs persisted, could begin to erode. B ut trust could be used to shore up one 
position or its opposite, and was of such a flimsy nature that even rumours about its integrity may 
suffice to taint its reputation. Trust, therefore, could not be contingent upon having one's own 
position always prev ailing, nor on an unrealistic expectation of receiving immaculate, perfect 
reasoning in each and every dispute. Trust and legitimacy resulted from the competence and 
independence shown by the adjudicators selected by Members and in the more and more comple x 
disputes brought by Members. While Members would all agree that trust was a cornerstone of the 
system, they could not agree that trust was only found to exist when the adjudicatory body 
confirmed its conceptual or legal convictions. It was also true that  in a pluralistic environment such 
as the WTO, one was bound to find different but legitimate concepts of institutions and how they 
should operate. It was in this realistic context that Members must be reminded that the Appellate 
Body worked for the broad and diverse WTO Membership and that its decisions were above any 
specific interest of any particular Member.  
6.18.   One should ask what it was that Members could do in this situation.  First, Members could 
start by asking themselves what kind of body they wanted  to be in charge of their disputes, some 
of which were critical to their national interests. Members could also ponder on the implications of 
submitting "sitting members" of the highest adjudicatory instance of the WTO to unilateral 
appraisals about the fi nal outcome of each dispute and its conduct. No Member was barred, either, 
from imagining, by implication, what the reasons in favour of reappointment could mean. 
Furthermore, as Members all searched for the best way to address the current situation, Brazi l 
wished to more concretely suggest a number of points for Members' joint consideration. Brazil was 
suggesting these points simply by way of obiter  dicta, as food for thought. Considering that 
Article  17.2 of the DSU established that "each member may be re appointed once", and no clear 
rules indicated the circumstances that could justify non -reappointment, WTO Members could 
consider amending the DSU to the effect that a single 6 or 7 -year mandate for Appellate Body 
members be established, so as to close the loophole for undue interference and pressure, and to 
ensure an adequate working environment for the Appellate Body  members, who, once selected, 
belonged to the Membership, and should not be subject to undue pressure from any Member. At 
the same time, provi ded that independence and impartiality were thus safeguarded throughout the 
mandate of Appellate Body  members, Members could weigh the pros and cons of introducing a 
regular "moment of interaction" between WTO Members and the Appellate Body, disconnected 
from the moment of reappointment, as a means of allowing for the legitimate interests of Members 
to convey their views on matters of concern regarding dispute settlement. This could become an 
opportunity for an exchange of opinions on several issues, as lon g as the adequate rules of 
procedure were formulated. Moreover, as the introduction of a single mandate would require 
amendment to the DSU, Members could assess the possibility of tackling other situations, related 
to the functioning of the Appellate Body,  so as to contribute to maintaining the efficiency Members WT/DSB/M/379  
 
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 had grown accustomed to over the years, as well as to preserving the quality and independence of 
the adjudicatory process. Brazil was certain that Members would realize the seriousness of the 
current situation and would know how best to preserve the  Appellate Body. In the end, if none of 
the above suggestions, or other options Members may come up with were implemented, the 
alternative may boil down to choosing between independence or reappointment. Brazil invited all 
Members to consider the alternatives carefully, keeping in mind what a recently departed Appellate 
Body member had expressed when asked about encroachment on independence and impartiality 
of Appellate Body members: "this Rubicon cannot b e crossed".  
6.19.   The representative of Egypt  said that her country recognized the centrality of the WTO 
dispute settlement system in providing security and predictability to the multilateral trading 
system. Egypt had the highest respect for the work of the Appe llate Body and confidence in the 
integrity, independence and impartiality of its members. Egypt was deeply concerned about the 
systemic implications of the opposition to the reappointment of an Appellate Body member for 
reasons related to interpretations i n specific cases, and strongly cautioned against any action that 
may be interpreted as reprisal. Furthermore, Egypt believed that linking the reappointment of 
Appellate Body members to legal issues on which they had ruled may undermine the confidence 
and t he independence and impartiality of the Appellate Body members. Egypt called for a prompt 
resolution of this matter so as to ensure the efficient and effective functioning of the dispute 
settlement system.  
6.20.   The representative of India said that l ike other M embers who had expressed their concerns 
at the present meeting, his country wished to express its serious concern about the developments 
related to the reappointment of Mr.  Chang to the Appellate Body. A successful dispute settlement 
mechanism was grounded  on an independent and impartial Appellate Body. The process of 
reappointment and the basis for opposition to the reappointment undoubtedly had serious 
consequences for the independent functioning of the Appellate Body. The issue was not whether 
the reappo intment was automatic. The issue was on what grounds reappointment had been 
opposed. India found the alleged reasons in this particular context troubling. India wished to raise 
a few points, some of them reiterations of points that had been made by other M embers at the 
present meeting, that all Members needed to reflect on in relation to the present situation 
Members found themselves in. First, on the issue of a division, the Appellate Body hears appeals in 
divisions of three members each. As per Rule  3(1) of the Working Procedures for Appellate Review, 
decisions relating to an appeal shall be taken by the Appellate Body as a whole. Thus, the decision 
was the decision of the division as a whole and the division had full authority and freedom to hear 
and deci de an appeal. Therefore, attributing a particular adjudicative approach to a particular 
member of a division was unfathomable. If a question was raised on the legal approach of a 
particular Appellate Body member in a division hearing an appeal, did it impl y that all other 
members of that division were also responsible for that allegedly erroneous approach? This had 
serious implications for the working of the Appellate Body itself. Second, on the issue of the 
Appellate Body as a collegium, as per Rule  4(1) o f the Working Procedures, to ensure consistency 
and coherence in decision -making, and to draw on the individual and collective expertise of the 
members, the Appellate Body members shall convene on a regular basis to discuss matters of 
policy, practice and procedure. Therefore, opposing the reappointment of an Appellate Body 
member on an approach or legal interpretation followed allegedly by one member constituted a 
serious questioning of the functioning of the Appellate Body.  
6.21.   Third, on the issue of the basi s for opposing reappointment, the opposition to the 
reappointment on the basis of the reasons/approach provided in particular disputes signified, in 
India's view, a critical threat to an independent, neutral and impartial Appellate Body. India did not 
intend to go into the alleged reasons and disputes at this juncture at the present meeting. 
However, the opposition to reappointment on the basis of positions, legal interpretations and 
approaches taken by the Appellate Body in specific cases undermined the ve ry basis of an 
independent, rules -based judicial body. The Appellate Body derived its mandate from the DSU. 
Members may have diametrically opposing views on whether the mandates had been adhered to 
or not. WTO Members may have, and indeed did have as was e vident in the discussions in the 
DSB, differing views on how the Appellate Body must interpret the covered agreements or 
approach an appeal. However, if these views became the basis for considering the reappointment 
and ultimately opposing reappointment, t hen this was a slippery slope that Members were 
entering. What were the contours and limits of the reasons to oppose a reappointment? For 
example, could a developing -country Member, in another context, oppose the reappointment of a 
particular member on the  basis that that Appellate Body member's interpretation had consistently WT/DSB/M/379  
 
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 not been in accordance with the flexibilities and circumstances of developing countries that the 
DSU and the covered agreements provided? Members could well imagine that many such 
approaches and reasons could very well exist. If they became reasons for opposing reappointment, 
it was a very serious existential question for the functioning of an impartial and independent 
dispute settlement mechanism. Fourth, regarding addressing the lega l approach of the Appellate 
Body, India believed that the DSB was the appropriate forum in which the reports of the Appellate 
Body were considered and the adjudicative approach of the Appellate Body was to be discussed. In 
practice this did happen. Whether  Appellate Body reports had added to or diminished the rights 
and obligations of WTO Members was a valid issue for discussion. Members may have diverse 
views on what constituted diminishing or adding to the rights and obligations. It also depended on 
specific contexts of the disputes themselves. Members, and not only disputing parties, did have 
conflicting views on the approach taken by the Appellate Body. India witnessed extensive 
discussions in the DSB during the adoption of reports. This, in its view, wa s the right approach 
which preserved the independence of the Appellate Body, but at the same time provided an 
opportunity to Members to express contrarian views. By making the adjudicative approach as the 
basis for reappointment was essentially providing a  strong signal that the Appellate Body members 
who did not follow a particular approach or an adjudicative view, or who did not share the views of 
particular Members in the way they needed to approach the covered agreements, may not be 
considered for reapp ointment. This could, in the long run, have a chilling effect on the way 
Appellate Body members decided appeals and could undermine the system. India considered the 
opposition to the reappointment of Mr.  Chang unfortunate. While there may be systemic issue s to 
be discussed and longer -term solutions to be found, India echoed the concerns raised by Korea 
and other Members and expressed its support for the reappointment of Mr.  Chang to the Appellate 
Body. India hoped that the matter would be resolved and the o pposition to his reappointment 
would be withdrawn signifying Members' collective trust in an independent and impartial Appellate 
Body.  
6.22.   The representative of Switzerland  said that his country shared the concerns expressed by 
the previous speakers that the o bjection to the reappointment of Mr. Chang raised important 
systemic questions. The issue before Members pertained to the way the Appellate Body should 
function and to what exactly its role under the DSU and the WTO system should be. Switzerland 
understood  that the objection to Mr. Chang was not about his professionalism, but rather it 
questioned the performance of the Appellate Body as an institution. Switzerland thought it was 
highly problematic to address such issues on the occasion of reappointment inst ead of raising it in 
an open and transparent debate among Members in the DSB. An additional concern for 
Switzerland was that the objection against Mr. Chang had been related to specific disputes while 
the proceedings of the Appellate Body should be confide ntial. Switzerland was of the view that this 
incident directed at a member of the Appellate Body, and its concrete work, could be detrimental 
to the high -standing of the Appellate Body as a trusted and independent adjudicatory body fully 
committed to the r ule of law. To Switzerland, the opposition to Mr.  Chang's reappointment came 
as a surprise and at an unfortunate moment. A very short time between the objection to 
reappointment and the end of Mr.  Chang's term of office did not allow for a thorough discuss ion on 
such an important point of criticism and invited speculation about possible reasons for such a 
move. In Switzerland's view, this undermined trust and was not healthy for the system. 
Switzerland remained of the view that the reappointment of Mr.  Chang would be in the best 
interest of the WTO and the multilateral trading system.  
6.23.   The representative of Colombia  said that his country wished to express its concern 
regarding the situation arising from the objection to the reappointment of one Appellate Body  
member, Mr . Chang. Colombia had listened carefully to the arguments put forward by the 
United  States and considered some of the US reasoning to be sound. Nevertheless, Colombia 
wished to point out that the Appellate Body members had a strictly legal manda te. In Colombia's 
view, it was important to ensure that they enjoyed the greatest possible degree of independence 
and impartiality. Consequently, this veto could set a negative precedent for future appointment 
processes of Appellate Body members by making their reappointment contingent upon their 
actions. Colombia recognized the right of Members to make their views known in the multilateral 
trading system. However, in Colombia's view, Members must continue to have recourse to 
mechanisms that were appropriat e for that purpose, such as the DSB and the Ministerial 
Conference. Colombia underscored the importance of giving fresh impetus to the DSU negotiations 
in the context of the DSB Special Session, which was the appropriate forum for Members regarding 
their c oncerns in relation to the dispute settlement system.  WT/DSB/M/379  
 
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 6.24.   The representative of Nigeria  said that his country attached high priority to the integrity, 
impartiality and independence of the Appellate Body. This was important for the credibility of the 
rules-based system. There was no ambiguity as to the mandate of the Appellate Body, which was 
primarily to adjudicate appeals and clarify the existing provisions of the WTO Agreements without 
adding to or diminishing the rights and obligations provided in the covere d Agreements. It was 
Nigeria's expectation that this clear mandate would continue to be fulfilled without any hindrance. 
It was in that context that Nigeria wished to stress the critical importance of making the 
independence and impartiality of the Appella te Body effective. Nigeria, therefore urged Members to 
expeditiously find solutions to the current impasse for the smooth operation of the Appellate Body 
as well as its integrity in the vital interest of the multilateral trading system.  
6.25.   The representative of Chinese  Taipei  said that, in Chinese  Taipei's view, the possibility of not 
being able to reach a consensus at the present meeting on Mr. Chang's reappointment to the 
Appellate Body was regrettable. As Members knew, the dispute settlement system was one of the 
central pillars of the WTO. At a time of protracted difficulties for the WTO's negotiating arm in the 
Doha Round, the judicial arm of the WTO assumed even greater importance. The Appellate Body 
stood as the final adjudicator of disputes and played a  key role in "providing security and 
predictability of the multilateral trading system". It was therefore in the interests of all WTO 
Members, and especially at this crucial time, to ensure the institution's proficiency, independence 
and impartiality. Rega rding the case at hand, while Chinese  Taipei perfectly understood that the 
reappointment of Appellate Body members was not automatic, it was also of the view that 
Members should be extremely cautious and exercise self -restraint when considering whether or 
not a reappointment should be blocked. Barring certain exceptional circumstances, such as ethical 
misconduct or a serious medical condition affecting the candidate's ability to perform the function, 
the reappointment, in principle, should take place. The A ppellate Body's decisions on appeal were 
drafted by a three -member division, with consultations taking place later among all seven 
members. Chinese  Taipei could see no reasonable basis for exclusively attributing a particular legal 
view, or views, expresse d in the Appellate Body's reports to one single Appellate Body member. 
Thus, Chinese  Taipei was most concerned that any objection to a reappointment which was based 
on the Appellate Body's legal views in certain disputes may be an intervention in the core of 
authority of the institution. It could also have a chilling effect on the individual Appellate Body 
members, and could seriously undermine the institution's independence in carrying out its prime 
responsibility, which was: "to clarify the existing provi sions of those agreements in accordance 
with customary rules of interpretation of public international law". In fact, the WTO agreements 
provided Members with certain mechanisms by which they could comment on or even change the 
Appellate Body's decisions. For example, Article  17.4 of the DSU preserved Members' right to 
express their views on the Appellate Body's reports. Under Article  IX:2 of the WTO Marrakesh 
Agreement, Members may, through the Ministerial Conference or the General Council, make 
authoritat ive interpretations to bind the Appellate Body in future cases. Moreover, Members were 
able to amend the WTO Agreements through the procedure provided in Article  X of the Marrakesh 
Agreement. In summary, although Chinese Taipei fully recognized the importa nce of ensuring that 
the Appellate Body adhered to its legal mandate and the principle of the rule of law, it thought that 
linking the reappointment of an individual Appellate Body member to the legal views expressed by 
the Appellate Body in specific dispu tes would be the least constructive and effective approach to 
adopt for this purpose. Chinese  Taipei remained of the view that the reappointment of Mr.  Chang 
as an Appellate Body member was in the best interest for all WTO Members.  
6.26.   The representative of Singapore  said that his country urged Members, in discussions 
relating to the Appellate Body, to prioritize the smooth functioning of the WTO dispute settlement 
system. Singapore was concerned that any protracted delay in the appointment and 
reappointment of  Appellate Body members would leave the Appellate Body short of two members 
after 31  May 2016. Members should not allow for a shortage of Appellate Body members that led 
to exacerbated delays in the resolution of current and future appeals. While the appoi ntment of 
the most suitable persons for the Appellate Body was a crucial decision for the WTO and time was 
required for that process, Singapore hoped that the appointment and reappointment issues could 
be expeditiously addressed based on objective criteria  and on candidates' credentials. The 
appointment or reappointment to the Appellate Body had to be done in accordance with the DSU. 
Singapore urged Members with strong views on the current two instances of appointment and 
reappointment to balance the variou s considerations and engage with Members to address mutual 
concerns with a view to arriving at a consensus on the way forward.  WT/DSB/M/379  
 
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 6.27.   The representative of Guatemala  said that his country thanked the United  States for its 
explanations and shared the concerns expr essed by the previous speakers. Guatemala recognized 
that the renewal of the terms of office of Appellate Body members was not automatic. In general, 
any WTO Member had the right to object to any renewal of a term. Objection in itself was not 
unlawful and should not be regarded as an affront to the WTO dispute settlement system. On the 
other hand, objection to the renewal of an Appellate Body member's term was unquestionably a 
decision with serious systemic implications and was not to be taken lightly. In G uatemala's view, 
there were very few reasons that would justify a non -reappointment of an Appellate  Body 
member, and those reasons called for careful consideration by all  Members. For example, 
Guatemala believed that non -renewal of a term would be warrante d if it were determined that an 
Appellate Body member had not fulfilled his or her obligations under the code of conduct. This was 
not the case in this instance, far from it. Guatemala's understanding was that the US reason for 
objecting to Mr . Chang's rea ppointment was its disagreement with certain Appellate Body 
decisions, which the United  States regarded as going beyond the provisions of the covered 
agreements. Guatemala did not consider this to be justifiable and sufficient cause for objection. In 
fact, Guatemala was concerned about the motives and the form in which the United  States had 
objected to the renewal of Mr. Chang's term.  
6.28.   First, it was regrettable that the United  States had chosen to communicate its decision to 
the public at large without first  informing WTO Members. The US decision, from Guatemala's 
viewpoint, was unexpected to say the least. The United  States thus had closed any prospect of 
prior discussion and serious exchange of views with the rest of the Membership on the motives for, 
and t he systemic implications of, its decision. Second, the objection was based on the opinion of a 
single Member, the United  States, which regarded certain Appellate Body decisions as being 
contrary to the covered agreements. However, as was the case with any judicial decision, there 
would always be those in favour and those against. This was precisely why there was an 
independent collegial Appellate Body, which was responsible for interpreting and applying the 
relevant legal provisions. Guatemala had no reason  whatsoever to mistrust the work and 
judgement of the Appellate Body. Third, Guatemala found it difficult to accept the singling out of 
Mr. Chang and considered it unjustified, given the way in which the Appellate Body decided 
appeals. Fourth, discussions concerning the scope of Appellate Body decisions should take place in 
the DSB. It did not seem appropriate to express disagreement with such decisions by way of 
non-renewal of Appellate Body members' terms. Guatemala expressed its full support and 
confiden ce in the Appellate Body and its members, including Mr.  Chang. Guatemala was more than 
willing to have a constructive discussion with Members in order to avoid this kind of situation, 
including, for example, on the possibility of making a single six -or sev en-year term of office for 
Appellate Body members.  
6.29.   The representative of Norway  said that his country was of the view that Article  17.2 of the 
DSU was quite clear. Reappointments were made by the DSB and were not automatic. Since there 
was no reference to negative consensus, reappointments were made by consensus decisions. 
Members therefore did have the right to block reappointments, whether Members liked it or not. 
Norway did not share the view suggested by some Members that reappointments were semi - or 
quasi-automatic. That being said, blocking reappointments of Appellate Body members may be 
unfortunate from a systemic perspective, even if Members had the right to do so. Norway did 
recognize that blocking reappointments of Appellate Body members based on Appellate Body  
decisions in which they had participated, may possibly undermine the independence of the 
Appellate Body in the sense that its members may be overly cautious in the execution of their 
functions. At the same time, this argument should perhaps n ot be pushed too far. Appellate Body 
members were appointed for four years and could not, according to the wording of the DSU, 
expect to be reappointed. Appellate Body members should therefore perform their function 
independently and to the best of their a bilities in their first term without being motivated by a wish 
to be reappointed. Norway had taken note of Korea's and Brazil's suggestions to have systemic 
discussions on the institutional structure and role of the Appellate Body. Norway wished to indicat e 
its willingness and openness to participate and discuss any proposals. Norway noted with great 
concern that the Appellate Body may soon be left with two vacancies and a significant workload in 
the near future. Norway encouraged all Members to show the ut most flexibility in order to fill the 
upcoming vacancies as soon as possible.  
6.30.   The representative of Argentina  said that his country was concerned about the discussion 
which, 20  years after the establishment of the WTO dispute settlement system, seemed out of 
proportion. The workings of the dispute settlement system were based on several "pillars" which, WT/DSB/M/379  
 
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 despite being few in number, had proved to be highly effective. One of those pillars was the 
commitment undertaken by Members to call on the DSB to resolve any conflicts that might arise 
among Members, on the basis of the DSU provisions. Another pillar was the establishment of the 
bodies and institutions necessary for the system to operate in a manner consistent with those 
principles, in other words, the DSB,  panels and the Appellate Body, including the rules and 
procedures governing their composition and renewal, as well as those regulating the adoption of 
the reports and appeal proceedings. The third pillar concerned the supremacy of Members as 
fundamental a nd indispensable actors in the mechanism of creating rights and obligations. This 
was evidenced by, among other WTO legal provisions, Article  3.2 of the DSU, which established 
that the dispute settlement system could not add to or diminish the rights and o bligations of 
Members. Hence, Members could not be substituted in their capacity to decide on the obligations 
to which they were subject or the rights to which they were entitled, without any implication that 
influence may be exerted on the mandate of the adjudicating bodies in their task of assisting the 
DSB or on the system's objective of interpreting and clarifying the provisions in force, in an 
objective, impartial and independent manner.  
6.31.   Argentina had taken note of the US decision to object to Mr.  Chang's reappointment to a 
second four -year term of office in the Appellate Body. Argentina held Mr.  Chang in the highest 
professional esteem, having had the honour of his service as a member of an Appellate Body 
division over the past few years in disputes th at involved Argentina as the defendant. Argentina 
therefore regretted that the United  States had decided not to support him, and it did not agree 
with that decision. Nonetheless, Argentina did not see a single legal or other reason to prevent 
Members from expressing their opinions about the rulings of the WTO's adjudicating bodies, 
including the Appellate  Body, or about their members, and therefore it defended the right of all 
Members to do so. Argentina in fact noted that the United  States had made public its opinion 
about the reappointment in question. It had also stated, before the DSB when the reports in the 
most recent case heard by the Appellate Body were adopted, that its opinion concerning 
obiter  dicta in that case was without prejudice to the legal interpretation behind them.17 Argentina 
did not regard the opinions of Members as a threat to the system. Nor did Argentina consider that 
either panels or the Appellate Body should feel constrained by those opinions. The  criteria for 
serving on one body or the other, as laid down in Articles  8.1 and  17.3 of the DSU, respectively, 
required that the members of both bodies had the capacity to rise above the influence of Members. 
The Appellate Body had been, and was, a key player in the establishment and consoli dation of the 
dispute settlement system which, albeit subject to improvement, had demonstrated its efficiency 
and high -quality legal expertise in resolving disputes among WTO Members. Commitment to a 
rules-based system and the involvement of Members in all  aspects of the system had played an 
equally vital part. It was Members' collective obligation to preserve and improve that system by 
strictly complying with the rules.  
6.32.   The representative of Paraguay  said that his country wished to express its concerns abo ut 
the way in which the reappointment of Appellate Body members was being addressed. The success 
and legitimacy of the dispute settlement system was based, among other things, on the 
impartiality, independence and collegiate nature of the work of the Appel late Body. This was how 
the Appellate Body discussed the cases before it and took decisions as a single body. It was not 
the views expressed by one single Appellate Body member.  Paraguay noted that one Member was 
not happy with the Appellate Body reports.  However, linking that to the appointment or 
reappointment of Appellate Body members was a matter of concern to Paraguay. Such an 
approach could have an adverse effect on the future of the Appellate Body and could cause 
difficulties for the Secretariat. Fu rthermore, it would undermine the confidence in the system. 
Paraguay hoped that the appointment procedures currently under way would be addressed in an 
expeditious manner and that the DSB would take the necessary decisions as soon as possible.  
6.33.   The represen tative of Australia  said that his country agreed that under the DSU, a decision 
to appoint an Appellate Body member for a second term required the consensus of the DSB. In 
light of the views expressed at the present meeting, it appeared that there was no s uch consensus 
in relation to the reappointment of Mr.  Chang. In considering the best way forward in light of this 
development, Australia remained open to discussions with other Members both as to the most 
appropriate procedural approach to filling upcoming  vacancies, and to addressing the systemic 
issues a number of delegations had raised at the present meeting. On the procedural issues, the 
appointment process needed to support the effective functioning of the Appellate Body and 
                                                
17 Statement by the United  States under Agenda item 2. DSB mee ting of 9  May 2016.  WT/DSB/M/379  
 
- 27 - 
 
 maintain its integrity and standing. It was also important that Members did not face gaps on the 
Appellate Body, given the workload pressures that Members were all aware of. On the systemic 
issues, Australia took the view that while it agreed that reappointment was not automatic, 
Australia considered that the timing  and rationale given by any Member for not reappointing an 
Appellate Body member should be carefully considered and articulated, respecting the 
independence of the Appellate Body. In Australia's view, non -reappointment sho uld only be 
exercised in exceptional circumstances. Australia encouraged all Members to work cooperatively to 
resolve this situation in a timely manner, and in a way which preserved the effective functioning of 
the Appellate Body.  
6.34.   The representative of Uruguay said that his country noted that Members were faced with a 
situation that should never have arisen and was sending negative signals about the Appellate Body 
and the way in which it operated. The last thing the WTO as an institution needed at this time  was 
precisely to become caught up in this kind of imbroglio, which was not positive either from a 
systemic perspective or for its image. It was clear that the decision to reappoint an Appellate Body 
member was taken by the DSB by consensus. However, it wa s difficult to understand the signals 
sent with regard to the institutional process under which the Appellate Body operated because it 
was a jurisdictional and institutional function that, in each case, concluded with a recommendation 
by the Appellate Body . The outcome, and implicitly the process which led to this outcome, must be 
accepted by Members. The process precisely afforded, or should afford, opportunities for 
arguments to be put forward or points of view expressed. If problems existed in relation t o the 
quality of panel or Appellate Body reports, they should be dealt with by the DSB. Uruguay also had 
many doubts concerning the relevance or purpose of the letter circulated by the Appellate Body 
members, which, while Uruguay might agree with in substa nce, was an unusual communication, to 
say the least. In Uruguay's view, this issue of appointments must be resolved as soon as possible. 
Failure to do so carried with it the potential for significant harm to the system.  
6.35.   The representative of Japan  said tha t his country took note of the statements made by 
previous speakers. The United  States had explained its own reasons and rationales behind its 
action in its statement made at the present meeting. Japan was not ready to comment on those 
rationales, except t o say that the US action was extraordinary, exceptional in nature, and had no 
precedent, and any act by a WTO Member of this nature and magnitude must be exercised with 
extreme caution. On its part, Japan did not have any objection to the reappointment of Mr. Chang, 
who had served faithfully and honourably on the Appellate Body for the past four years. Other 
Members had expressed their systemic concerns about the US action and its possible impact on 
the independence of the Appellate Body. Certainly, Japan a greed that as an adjudicative body the 
independence and impartiality of the work of the Appellate Body must be fully respected because 
this would ensure the credibility and proper functioning of the WTO dispute settlement system. 
Yet, the DSU meant what it  said and nothing in the text of the DSU suggested that the 
reappointment was pre -determined or a forgone conclusion. Some Members had suggested the 
need to change the DSU so as to ensure the "independence" of the Appellate Body. All of these 
suggestions s hould be worthy of being reflected upon by the Membership. However, the problem 
was not simply about the propriety of the system of reappointment, or the length of the term of 
office. The heart of the issue laid in divergent views on the proper roles of th e Appellate Body and 
its institutional relationship with the Membership. While nobody questioned the importance of 
judicial "independence", the Appellate Body was part of the much larger institutional structure of 
the WTO and in that context there appeared  to be disagreement as to the degree and nature of 
such "independence", whether, how and to what extent the power and authority of the Appellate 
Body should or could be circumscribed, and whether and how the Appellate Body could or should 
discipline itself  in exercising its authority. In other words, there was a tension between the notion 
of the "separation of powers", on the one hand, and that of "checks and balances", on the other, if 
such notions ever existed in the WTO institutional framework, and the q uestion was how to strike 
the right balance. In short, there was no easy fix to the problem revealed because the issue was 
deeply rooted in the differences in opinions with respect to the place of dispute settlement in the 
WTO regime at large. As difficult  and fundamental as it may be, the issue could only be addressed 
and solved by WTO Members themselves. As a responsible WTO Member, Japan was ready to 
engage in constructive discussions with interested Members on this issue of systemic importance 
that conc erned and affected all WTO Members.  
6.36.   The representative of Viet Nam said that her country thanked the United  States for its 
clarification and explanation. Viet  Nam understood that any Member had the right to support or 
oppose an appointment or reappointment  of an Appellate Body member. However, Viet  Nam also WT/DSB/M/379  
 
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 shared the concerns of many other Members regarding the justifiability of some of the reasons for 
the opposition to the reappointment of Mr. Chang. In Viet  Nam's view, it was difficult to find a 
provisio n in the DSU and other relevant rules on linking the conditions for reappointment with 
decisions made in specific disputes. Making such a linkage may undermine the impartiality and 
independence of the Appellate Body and the dispute settlement system. Such action may become 
a dangerous precedent that other WTO Members may be tempted to follow and would threaten the 
impartiality and independence of not only the Appellate Body members but the trust in the 
institution. The independence and impartiality of the A ppellate Body and the dispute settlement 
system should be respected and protected. Viet  Nam urged the DSB to find a solution as soon as 
possible, in particular, in light of the dispute settlement workload.  
6.37.   The representative of Hong Kong, China  said that H ong Kong, China thanked the Chair for 
his report and his efforts in working towards finding a solution. At the present meeting, 
Hong Kong, China was not in a position to comment on the way forward. However, from a 
systemic point of view, Hong  Kong, China w ould not wish to see the objection to a reappointment 
being raised so close to the expiry of the term of office, which adversely affected the work of the 
Appellate Body. Given that reappointments were not automatic, in future it may be helpful to allow 
more time for concluding the consultation process prior to the expiry of the term, and to have a 
clear understanding as to how the vacancy would be filled if there was no consensus on the 
reappointment. As a general principle, Hong  Kong, China believed that t he selection or 
reappointment of Appellate Body members should be based on merit and be guided by Article  17.3 
of the DSU. It was important that Members fully respected the independence of the Appellate Body 
in order for the Appellate Body to function effe ctively and objectively without fear.  
6.38.   The representative of New Zealand  said that her country wished to affirm the importance of 
an independent and impartial Appellate Body. The Appellate Body formed a key part of an 
effective rules -based dispute settleme nt system which protected the interests of all Members, 
both big and small . While recognising that the reappointment of Appellate Body members was 
not automat ic, New  Zealand emphasized that consensus should only be blocked in rare and 
exceptional circumsta nces. There was also an important practical dimension to this issue . The 
Appellate Body could not effect ively fulfil its function without seven members, and it was 
regrettable that the timing of the blocking of this reappo intment consensus risked another 
vacant seat on the Appellate Body. These pract ical considerations were of particula r 
importance now, at a time when the dispute settlement system was under increased workload 
pressure. New  Zealand therefore urged all Members to be pragmatic in their approac h to 
these matters and to find prompt solutions to ensure that any Appellate Body vacancies were 
filled as soon as possible.  
6.39.   The representative of Turkey  said that, a s it had been underlined by many delegations, the 
renewal of the mandate of the Appellate Body members was not an automatic procedure, and 
every Member had the right to break the consensus on the issue. In that context, Turkey took note 
of the statement made by the United  States. Turkey, however, shared the essence of the views 
and arguments me ntioned by previous speakers regarding the US objection to the reappointment 
of a member of the Appellate Body. Turkey attached utmost importance to the preservation of the 
independence and impartiality of the Appellate Body  members and considered that pos itions which 
could damage these two main criteria, which should guide the Appellate Body  members, would 
have negative implications on the smooth functioning of the important body.  
6.40.   The representative of the Russian  Federation  said that her country considere d it necessary 
to register its views on the matter which was of systemic importance and concern for the entire 
Membership. All Members affirmed their adherence to the rules and procedures set out in the DSU. 
The DSU stipulated that the WTO dispute settleme nt system was a central element in providing 
security and predictability to the multilateral trading system. Any action compromising the 
functioning of the dispute settlement system dealt a heavy blow to the heart of the WTO as a 
whole. Russia strongly bel ieved that independence of those vested with the duty to preserve the 
rights and obligations of Members under the covered agreements was a sine qua non condition for 
the effective functioning of the dispute settlement system. If Members' rights and obligat ions were 
to be preserved, the Members, first and foremost, needed to guard the independence of WTO 
adjudicators. At the same time, Russia recognized that Members may have their concerns, 
legitimate or otherwise, over the functioning of the dispute settlem ent system. Russia encouraged 
an open dialogue about such concerns which should be carried out in a transparent manner. In 
Russia's view, Members should strive to resolve such concerns through multilateral discussions WT/DSB/M/379  
 
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 aimed at eliminating the existing defi ciencies, if any, by improving the legal framework rather than 
through ad hoc means that could put at risk the independence of the individuals exercising dispute 
settlement functions. Russia urged the Members involved to abstain from any action destabilizi ng 
the WTO dispute settlement system and stood ready to engage in any effort that the Membership 
may deem necessary to avoid, prevent or address any situations that could compromise the 
independence of WTO adjudicators and the functioning of the dispute se ttlement system.  
6.41.   The representative of Canada  said that his country had listened with great interest to this 
discussion and noted that there was a fair degree of consensus on certain issues. First, there 
seemed to be a general recognition, and Canada agree d with this, that reappointment of an 
Appellate Body member required a positive consensus of the DSB, and that any Member therefore 
had the prerogative not to join that consensus. Canada did not consider either that reappointment 
was automatic or that it w as done on the basis of negative consensus, in other words, that a 
consensus would be required not to reappoint. Second, in common with other delegations, Canada 
shared the concerns about the ostensible grounds provided by the United  States for refusing to  
join consensus on Mr.  Chang's reappointment. Despite great efforts by the United States to 
distinguish the rationale for its concern about the reports in question from the specific outcome of 
those disputes, it remained a grave concern to Canada that link ing reappointment to specific 
interpretations sent a dangerous message that reappointment may depend on an Appellate Body 
member being associated with interpretations that satisfy one of the parties. For that reason, as 
others had said, this action should not be seen as a precedent to be repeated in anything other 
than exceptional circumstances in future reappointment exercises. Canada wished to address two 
aspects, distinguishing between the short term issues and the longer term systemic issues. First, it 
was clear that there was no consensus to proceed with this reappointment, and no evidence that 
one would emerge. The immediate issue for the DSB was therefore the expiry on 31  May 2016 of 
the terms of two members of the Appellate Body, one having completed  two terms and the other a 
single term, right at a time when the institution was heading into another period of high demand.  
6.42.   The DSB was collectively responsible for ensuring that the Appellate Body returned to a full 
contingent within the shortest possib le time -frame. To do that, Members would have to set aside 
their philosophical differences and work pragmatically to find a prompt solution to ensure a 
well-functioning system. But Canada did recognize that important differences existed among 
Members. Memb ers would also need to address the longer term systemic issues. In doing so, 
Canada was not convinced that it would be possible or desirable to attempt collectively to identify 
a list of circumstances in which the DSB was justified in not reappointing an A ppellate Body 
member. The consensus decision -making rules were adequate to deal with that. But this situation 
raised important matters of broad systemic significance to all Members, most of which had been 
simmering for many years, and were not going to be resolved in this reappointment process. While 
Members needed to redouble their efforts to address those underlying issues, this would only 
result from a methodical and longer -term process. Some Members called into question whether the 
renewal of term appoi ntments served the interests of the system. They may doubt whether the 
need to be reappointed affected the analysis of an Appellate Body member in his or her first term. 
As a result, some had called for a single, non -renewable term of a longer duration for  Appellate 
Body members. That could be a solution. On the other hand, to the extent that Canada 
understood, some of the US concerns were about its dissatisfaction with the way the Appellate 
Body sometimes interpreted and implemented its own mandate. This t oo reflected grievances of a 
systemic nature. Other Members may share the view that this needed to be acknowledged and 
addressed in some way. As a result, Members were not going to resolve the reappointment 
question without also finding a solution to conce rns about the proper scope of the Appellate Body's 
mandate. Both would need to be addressed if Members were to find a way forward that preserved 
the legitimacy, integrity and well -functioning of the system. Members also needed to take care not 
to conflate the issues of the adjudicative independence from Members as disputing parties, on the 
one hand, and the institutional accountability of adjudicators to Members, on the other, which was 
also part of the architecture of the DSU. In that regard, Canada apprec iated the indication in the 
letter from the Appellate Body that it seemed to have overcome some of its reticence and was 
open to further discuss the scope of its mandate. Canada had heard at the present meeting that a 
number of Members looked forward to su ch a discussion. Members had to recognize that it would 
not be possible to find a final resolution to these systemic issues in the context of this specific 
reappointment process. Canada was grateful to have been in the capable hands of the DSB 
Chairman to lead Members through this discussion. Canada stood ready to participate in any 
further consultations to develop solutions to both the immediate reappointment issue and the 
longer term resolution of the systemic and structural issues.  WT/DSB/M/379  
 
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 6.43.   The representative of China  said that his country regretted to learn that there was no 
consensus on Mr. Chang 's reappointment. The Appellate Body played a fundamental role in the 
WTO dispute settlement mechanism, which was an important and central pillar of the multilateral 
trading system. In order to enhance the security and predictability of the rules of international 
trade embodied in the WTO Agreements, it was critical to safeguard the independence and 
impartiality of Appellate Body members.  China took note of the Appellate Body's communication of 
18 May 2016 with respect to the recent statement of opposition to the reappointment of 
Mr. Chang. The Appellate Body's voice should not be neglected . For the benefit of the entire 
Membership,  China invited Members to carefully asses s the systemic impact of this matter, in 
order to maintain the efficiency, impartiality, stability and predictability of the system.  
6.44.   The representative of Indonesia  said that as all Members were aware, Mr. Chang's term of 
office as an Appellate Body member  would shortly expire. According to the DSU, an Appellate Body 
member may be re -appointed for a second four -year term. In that respect, the DSB had started 
the necessary process for the reappointment of Mr. Chang for his second term. Indonesia had 
systemic  concerns about linking the reappointment of an Appellate Body member to the Appellate 
Body's reports or decisions. Indonesia fully shared other Members' views that Appellate Body 
reports were made in collegiality by all Appellate Body  members and could no t be attributed to any 
single AB member. In that respect, linking the reappointment of Appellate Body members to the 
Appellate Body's reports or decisions in specific disputes may carry the risk of undermining the 
trust that WTO Members placed in the indep endence and impartiality of the Appellate Body 
members. Indonesia was concerned that if this issue was not resolved it would have a systemic 
impact on the functioning of the Appellate Body and the dispute settlement system. Indonesia 
therefore called Membe rs' attention to resolving this issue promptly, in light of the current 
workload faced by the dispute settlement system.  
6.45.   The representative of Honduras  said that her country had taken note of the concerns 
expressed by Members at the present meeting. Hondur as believed that this situation had serious 
systemic implications. Honduras, therefore, hoped that a solution could be found as soon as 
possible with regard to such an important WTO body.  
6.46.   The representative of Thailand  said that his country did not often m ade statements in the 
DSB meetings, but having listened to, and having considered the issue, Thailand wished to 
comment since this was an issue of principle. The trust that all Members had placed in the dispute 
settlement system was based on the independen ce and the impartiality of WTO panelists and the 
Appellate Body members. Thailand upheld those principles. Thailand understood that 
reappointment was neither a right nor automatic but this matter should be based on the 
qualifications and capability of the member and must not be linked with the Appellate Body's 
decisions on specific  cases. A linkage, established between the reappointment of an Appellate Body 
member and the decisions in specific cases, would certainly affect the trust placed on the Appellate 
Body and the dispute settlement system, which was considered to be the important pillar of the 
WTO system. Thailand therefore supported further consultations on this matter with a view to 
finding a solution so as to have two new members of the Appellate Bo dy without any delay.  
6.47.   The representative of Iceland  said that his country noted that the role of courts and the 
interaction between the legislature and the judiciary had been a constant debate amongst scholars 
for centuries. All Members should have known a t the time of establishment of the Appellate Body 
that it would gain a life of its own. Members could not have both an independent Appellate Body 
and at the same time demand a judicial style or approach dictated according to Members' will or 
traditions. Th ere were limits and there should be limits to the mandate of the Appellate Body. It 
might, in the short term, have been feasible for the Appellate Body to introduce new principles into 
the WTO legal system. However, Members could not be blind to the fact t hat judicial activism could 
easily undermine the democratic legitimacy of the system and make it even more difficult for the 
WTO's negotiating arm to yield results. The US concerns were legitimate and obiter  dictum 
statements could have exceeded some limit s. However, Members should not link such concerns 
with the appointment or reappointment of an Appellate Body member. Such a link posed great 
systemic concerns to Iceland. Members should be mindful that not just one member rendered 
decisions, there were at least three. In Iceland's view, all Members should be reminded of the fact 
that the Appellate Body members were serving in their individual capacity, and not as 
representatives of their countries.  WT/DSB/M/379  
 
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 6.48.   The representative of Oman  said that her country had a syst emic concern and interest in 
this matter and wished to take part in any consultations or discussions on these matters in order 
to find an appropriate solution.  
6.49.   The Chairman  said that there were many thoughtful statements made at the present 
meeting which h ad raised profound issues and questions that would deserve further consideration. 
He informed delegations that the statements made would be reflected in the minutes of the 
meeting. It was clear that Members were faced with a complex and difficult situation  and it was 
apparent that Members would have to continue to reflect and consult further on this matter. He 
encouraged delegations to consult with each other and consider how to proceed in light of the 
current difficulties faced. He informed delegations tha t he would be away from Geneva from 25 to 
28 May and again from 31  May to 3  June. On his return, he would make himself available to meet 
with delegations and consider any suggestions they may have on these matters in the week 
beginning 6  June 2016.  
6.50.   The DSB  took note  of the statements.  
7  DISPUTE SETTLEMENT W ORKLOAD  
A.  Statement by the Chairman  
7.1.  The Chairman , speaking under "Other Business", said that he wished to make a report to 
provide the DSB with information about the Appellate Body's workload, the number of disputes 
before panels, in the panel queue, and at the panel composition stage, and the ability of the 
Secretariat to meet expected demand over the coming period. On appeals, the Appellate Body was 
currently dealing with four appeals.18 In addition, two panel reports were expected to be circulated 
in the next three months that may also be appealed.19 These would be followed soon by the report 
of the Panel in the extremely complex compliance proceedings in the "EC and Certain Member 
States – Large Civil Air craft" (Airbus) dispute, which had been issued to the parties in March and 
was expected to be circulated to Members by early September. Given the limited number of staff 
available in the Appellate Body Secretariat, as of the second half of 2016 there was l ikely to be a 
waiting period until all these appeals could be staffed and Appellate Body Members could turn to 
dealing with them. On panels/arbitrations, currently, there were 17 active panels (including one 
panel under Article  21.5 of the DSU) that had no t yet issued a final report to the parties. He noted 
that he was counting multiple disputes that were being considered simultaneously by the same 
panel as one. For example, "Australia – Tobacco Plain Packaging", which in fact comprised four 
active disputes , was counted as a single panel in his report. In addition, suspended panels had not 
been counted. As of the present day, there were two composed panels awaiting staff to assist 
them20, both of which had been composed after 31  October  2015 when the Director -General had 
undertaken to staff all panels in the queue at that time. As of the present day, there were five 
panels at the composition stage. In addition, one matter had been referred to arbitration under 
Article  22.6 of the DSU, which was currently await ing staff to assist the arbitrator.  
7.2.  The DSB took note  of the statement.  
__________  
                                                
18 DS456 "India – Solar Cells"; DS464 "US – Washing Machines"; DS461 "Colombia – Textiles" ; and 
DS473 " EU – Biodiesel".  
19 DS475 "Russia – Pigs"; DS485 "Russia – Tariff Treatment" . 
20 DS490/DS496 "Indonesia – Iron" or "Steel Products"; and  DS491 "US – Coated Paper" (Indonesia).