RESTRICTED  
  
WT/DSB/M/404  
 
6 March  2018 
(18-1385) Page: 1/25 
Dispute Settlement Body  
22 November 2017    
 
MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 22  NOVEMBER  2017 
Chairman: Mr. Junichi I hara (Japan ) 
Table of Contents  
1   SURVEILLANCE OF IMPL EMENTATION OF RECOMM ENDATIONS ADOPTED BY  
THE DSB ................................ ................................ ................................ ...........................  2 
A.  United  States – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status report by the United  States ................................ ................................ ..............  2 
B.  United  States – Section 110(5) of the US Copyright Act: Status report by the 
United  States  ................................ ................................ ................................ .....................  3 
C.  European  Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European  Union ................................ ................................ ....... 3 
D.  Canada – Anti-dumping measures on imports of certain carbon steel welded pipe from 
the Separate Customs Territory of Taiwan,  Penghu, Kinmen and Matsu: Status report by 
Canada  ................................ ................................ ................................ ..............................  4 
E.  United  States – Anti-dumping and countervailing measures on large reside ntial 
washers from Korea: Status report by the United  States  ................................ ..........................  4 
2   UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  
OF 2000: IMPLEMENTATION O F THE RECOMMENDATION S ADOPTED BY THE  DSB ...........  5 
A.  Statement by the European  Union  ................................ ................................ ....................  5 
3   UNITED ARAB EMIRATES  – MEASURES RELATING TO  TRADE IN GOODS AND 
SERVICES, AND TRADE -RELATED ASPECTS OF I NTELLECTUAL PROPERTY  RIGHTS  ..........  6 
A.  Request for the establishment of a panel by Qatar  ................................ .............................  6 
4   INDONESIA – MEASURES CONCERNING THE IMPORTATION OF C HICKEN 
MEAT AND CHICKEN PRO DUCTS  ................................ ................................ .......................  9 
A.  Report of the Panel ................................ ................................ ................................ .........  9 
5   INDONESIA – IMPORTATION OF HORTI CULTURAL PRODUCTS, A NIMALS AND 
ANIMAL PRODUCTS  ................................ ................................ ................................ ........  11 
A.  Report of the Appellate Body and Report of the Panel  ................................ ........................ 11 
B.  Report of the Appellate Body and Report of the Panel  ................................ ........................ 11 
6   PROPOSED NOMINATIONS  FOR THE  INDICATIVE LIST OF G OVERNMENTAL 
AND NON -GOVERNMENTAL PANELIS TS ................................ ................................ ..........  16 WT/DSB/M/404  
 
- 2 - 
 
7   APPELLATE BODY MATTE RS ................................ ................................ ......................  17 
A.  Statement by the Chairman  ................................ ................................ ............................ 17 
B.  Appellate Body appointments: Proposal by Argentina; Brazil; Chile; Colombia; 
Costa  Rica; Ecuador; El  Salvador; the European  Union; Guatemala; Honduras; 
Hong Kong, China; Mexico; Nicaragua; Norway; Pakistan; Peru; the Russian  Federation; 
Singapore; Switze rland; the Separate Customs Territory of Taiwan, Penghu, Kinmen and 
Matsu; Turkey; Uruguay and Viet  Nam ................................ ................................ ................. 17 
8   DISPUTE SETTLEMENT  WORKLOAD  ................................ ................................ ...........  24 
A  Statement by the Chairman  ................................ ................................ ............................. 24 
 
 
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.178)  
 
B.  United  States – Section 110(5) of the US Copyright Act: Status Report by the United  States 
(WT/DS160/24/Add.153)  
 
C.  European  Communities – Measures Affecting the Approval and Marketing of Biotech Products: 
Status Report by the European  Union (WT/DS291/37/Add.116)  
 
D.  Canada – Anti-Dumping Measures on Imports of Certain Carbon Steel Welded Pipe from the 
Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu: Status Report by Canada 
(WT/DS482/7/Add.3)  
 
E.  United States – Anti-Dumping and Countervailing Measures on Large Residential Washers from 
Korea: Status Report by the United States (WT/DS464/17)  
 
 
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". He invited delegations to provide up -to-date information about 
compliance efforts and to focus on new developments,  suggestions and ideas on progress towards 
the resolution of disputes. He reminded delegations that, as provided for in Rule  27 of the Rules of 
Procedure for DSB meetings: "Representatives should make every effort to avoid the repetition of 
a full debate a t each meeting on any issue that has already been fully debated in the past and on 
which there appears to have been no change in Members' positions already on record". With these 
introductory remarks he turned to the first status report under this Agenda i tem. 
A.  United  States – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status report by the United  States (WT/DS184/15/Add.178)  
1.2.  The Chairman  drew attention to document WT/DS184/15/Add.178, which contained the 
status report by the U nited States on progress in the implementation of the DSB's 
recommendations in the case concerning US  anti-dumping measures on certain hot -rolled steel 
products from Japan.  
1.3.  The representative of the United  States  said that the United States had provided a status 
report in this dispute on 9  November  2017, in accordance with Article  21.6 of the DSU. The 
United  States had addressed the DSB's recommendations and rulings with respect to the 
calculation of anti -dumping margins in the hot -rolled steel anti -dumping  duty investigation at 
issue. With respect to the recommendations and rulings of the DSB that had yet to be addressed, 
the US  Administration would work with the US  Congress with respect to appropriate statutory 
measures that would resolve this matter.  WT/DSB/M/404  
 
- 3 - 
 
1.4.  The representative of the Japan  said that his country thanked the United States for its status 
report and the statement. Japan once again called on the United States to fully implement the 
DSB's recommendations and rulings so as to resolve this matter.  
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.153)  
1.6.  The Chairman  drew attention to document WT/DS 160/24/Add.153, 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 the United States had provided a status 
report in this dispute on 9  November  2017, in accordance with Article  21.6 of the DSU. The 
US Administration would continue to confer with the EU, and to work closely with the US Congress, 
in order to reac h a mutually satisfactory resolution of this matter.  
1.8.  The representative of the European  Union  said that his delegation thanked the United  States 
for its status report and its statement. The EU referred to its previous statements and said that it 
wished to resolve this dispute as soon as possible.  
1.9.  The representative of China  said that his country thanked the United States for its status 
report. However, yet again, China had not seen any tangible progress in the implementation of the 
DSB's recommendations and  rulings regarding DS160. Therefore the interests of copyright holders 
remained unprotected due to the United States' violation of the minimum standards of protection 
provided for in the TRIPS Agreement. China urged the United  States to fulfil its obligati ons under 
the TRIPS Agreement.  
1.10.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
C.  European  Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European  Union (WT/DS291/37/Add.116)  
1.11.   The Chairman  drew attention to document WT/DS291/37/Add.116 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 app roval and marketing of 
biotech products.  
1.12.   The representative of the European  Union  said that his delegation referred to its statement 
made at the 23  October  2017 DSB meeting. The EU continued to be committed to acting in line 
with its WTO obligations. But m ore generally, and as it had stated many times before, the EU 
recalled that the EU biotech approval system was not covered by the DSB's recommendations and 
rulings.  
1.13.   The representative of the United  States  said that the United States thanked the EU for its 
status report and its statement  at the present meeting . The United States noted with concern that 
the EU measures affecting the approval of biotech products involved prolonged, unpredictable, and 
unexplained delays at every stage of the approvals process. Furthermore, even when the EU  finally 
approved a biotech product, the EU had facilitated the ability of individual EU member States to 
impose bans on the approved product. The United States urged the EU to ensure that its measures 
affecting the approval of  biotech products, including measures adopted by individual EU member 
States, were based on scientific evidence, and that decisions were taken without undue delay.  
1.14.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  WT/DSB/M/404  
 
- 4 - 
 
D.  Canada – Anti-dumping measures on imports of certain carbon steel welded pipe 
from the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu: Status 
report by Canada (WT/DS482/7/Add.3)  
1.15.   The Chairman  drew attention to document WT/DS482/ 7/Add.3 which contained the status 
report by Canada on progress in the implementation of the DSB's recommendations in the case 
concerning anti -dumping measures on imports of certain carbon steel welded pipe from the 
Separate Customs Territory of Taiwan, Pe nghu, Kinmen and Matsu.  
1.16.   The representative of Canada  said that his country referred to the detailed statement it had 
made at the DSB meeting on 23  October  2017. Canada had no new developments to report.  
1.17.   The representative of Chinese  Taipei  said that her de legation thanked Canada for its status 
report and statement. Chinese Taipei was examining the legislative amendments and the Canadian 
domestic review proceedings. It hoped to resolve this matter very soon.  
1.18.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
E.  United  States – Anti-dumping and countervailing measures on large residential 
washers from Korea: Status report by the United  States (WT/DS464/17)  
1.19.   The Chairman  drew attention to document WT/DS464/17, w hich contained the status report 
by the United States on progress in the implementation of the DSB's recommendations in the case 
concerning anti -dumping and countervailing measures on large residential washers from Korea.  
1.20.   The representative of the United  States said that the United States had provided a status 
report in this dispute on 9  November  2017, in accordance with Article  21.6 of the DSU. The 
United  States continued to consult with interested parties on options to address the 
recommendations of the D SB and would also be conferring with Korea in the near future on this 
and related issues.  
1.21.   The representative of Korea  said that his country thanked the United States for its status 
report and its statement. Korea had been closely monitoring actions taken b y the US Government 
regarding the implementation of the DSB's recommendations and rulings in this dispute. The 
reasonable period of time for implementation would expire on 26  December  2017. However, Korea 
was very concerned about whether the United  States would bring the measures at issue into 
compliance. The United States had not provided any meaningful information regarding its 
implementation progress nor had Korea observed the United States taking any of the steps that 
would be necessary to implement the  DSB's recommendations and rulings within the reasonable 
period of time. While Korea had continuously made inquiries to the United  States about the status 
of, and its plans for, implementation, the United  States had only responded with unclear messages 
like the present statement. There were procedures which, during the RPT arbitration in 
February  2017, the United States had presented as being essential for implementation under its 
domestic law  – Section  123 and 129 of the Uruguay Round Agreements Act – such as the 
re-opening of the investigation at issue, receiving public comments, and holding consultations with 
the US  Congress. Korea had not been provided with any information to indicate that any of the 
procedures mentioned above had begun. Against thi s backdrop, Korea considered the information 
contained in the status report circulated by the United  States to be insufficient for Members to be 
aware of the United States' status and plans regarding implementation. Furthermore, with only 
about a month rem aining before the reasonable period of time would expire, the US status report 
and the statement at the present meeting would leave Korea, and the rest of the Membership, less 
confident about the US intentions regarding implementation. The United States ha d indicated it 
intended to implement the DSB's recommendations and rulings at the 26  October  2017 DSB 
meeting. Korea had suffered from the United States' WTO -inconsistent measures for more than 
13 months since the adoption of the DSB's recommendations and rulings. It strongly requested the 
United  States to resolve the uncertainty surrounding the implementation matters without delay, 
and, eventually, to bring its measures into compliance within the reasonable period of time.  
1.22.   The representative of the United  States  said that the United States took note of Korea's 
statement and would convey it to capital. As mentioned, the United States and Korea would be WT/DSB/M/404  
 
- 5 - 
 
conferring on this matter in very near future. The United States would welcome discussing this 
matter with Korea on a bilateral basis. To be clear, however, it was incorrect to suggest that the 
United  States had taken no action. As it had explained in the status report submitted to the DSB 
and circulated to Members ahead of the present meeting, the United  State s continued to consult 
with interested parties on options to address the recommendations of the DSB . That process was 
ongoing.  
1.23.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
2  UNITED  STATES – CONTINUED DU MPING AND SUBSIDY OF FSET ACT OF  2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE  DSB 
A.  Statement by the European  Union  
2.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European Union and invited th e representative of the European  Union to speak.  
2.2.  The representative of the European  Union  said that his delegation, once again, requested the 
United  States to stop transferring anti -dumping and countervailing duties to the US industry. Every 
disbursement t hat 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 DSU to submit status reports on implementation in this 
dispute. The EU would continue to put this matter on the Agenda for as long as the United  States 
had not implemented the DSB's recommendations and rulings.  
2.3.  The representative of Brazil  said that, once again, her country thanked the EU for keeping 
this item on the DSB's Agenda. As one of the parties to the Byrd Amendment disputes, Brazil 
wished to refer to its previous statements made on this matter. In particular, Brazil wished to refer 
to its statements regarding the continuation of illegal disburseme nts, which should cease 
immediately. Brazil renewed its calls on the United States to fully comply with the DSB's 
recommendations and rulings in this dispute. Until then, the United States was under an obligation 
to submit status reports, pursuant to Artic le 21.6 of the DSU.  
2.4.  The representative of Canada  said that his country thanked the EU for placing this item on 
the DSB's Agenda. Canada shared the EU's view that the Byrd Amendment remained under the 
DSB's surveillance until it was no longer applied.  
2.5.  The representative of the United  States  said that, as the United States had noted at previous 
DSB meetings, the Deficit Reduction Act – which included a provision repealing the Continued 
Dumping and Subsidy Offset Act of 2000 – had been enacted into law in  February  2006. 
Accordingly, the United  States had taken all actions necessary to implement the DSB's 
recommendations and rulings in these disputes. The United States recalled, furthermore, that the 
EU had acknowledged that the Deficit Reduction Act did no t permit the distribution of duties 
collected on goods entered after 1  October  2007, more than 10  years ago. With respect to the EU's 
request for status reports in this matter, as the United States had already explained at previous 
DSB meetings, there was no obligation under the DSU to provide further status reports once a 
Member had announced that it had implemented the DSB's recommendations and rulings, 
regardless of whether the complaining party disagreed about compliance. And as the United States 
had no ted many times in the past, the EU had demonstrated repeatedly that it shared this 
understanding, at least when it was the responding party in a dispute. Once again, for the present 
meeting the EU had provided no status report for disputes in which there w as a disagreement 
between the parties on the EU's compliance.  
2.6.  The representative of the European  Union  said that his delegation had provided status 
reports on all disputes that the EU was required to do so (i.e. DS291).  
2.7.  The DSB took note  of the statements . WT/DSB/M/404  
 
- 6 - 
 
3  UNITED ARAB EMIRATES  – MEASURES RELATING TO  TRADE IN GOODS AND 
SERVICES, AND TRADE -RELATED ASPECTS OF I NTELLECTUAL PROPERTY  RIGHTS  
A.  Request for the establishment of a panel by Qatar (WT/DS526/2)  
3.1.  The Chairman  recalled that the DSB had considered this m atter at its meeting on 
23 October  2017 and had agreed to revert to it. He drew attention to the communication from 
Qatar contained in document WT/DS526/2 and invited the representative of Qatar to speak.  
3.2.  The representative of Qatar  said that, at the outse t, his country wished to state that efforts 
to find reconciliation to resolve to the dispute between Qatar and its nearest trading partners had 
failed due to the continued refusal by the responding parties to engage. Therefore, at the present 
meeting, Qata r was requesting the DSB to establish a panel, for a second time, to resolve the 
dispute between Qatar and the UAE. Qatar's request concerned violations of Qatar's rights to trade 
in goods under the GATT 1994, to trade in services under the GATS Agreement,  and to benefit 
from the protection of intellectual property rights under the TRIPS Agreement. Qatar had 
previously requested a panel establishment on 23  October  2017. Therefore, Qatar would not 
repeat the comments it had made in its statement at that meet ing, other than to reiterate that the 
actions of the UAE constituted unilateral actions in gross disregard for Qatar's and other WTO 
Members' rights. In addition, it was important to recall that the measures imposed clearly violated 
the cornerstone WTO rul es. WTO rules for goods, services and intellectual property were based on 
principles of non -discriminatory treatment. Yet, these measures targeted Qatar alone, denying 
virtually all the benefits guaranteed by WTO Membership. WTO rules guaranteed freedom of  
transit. Yet, these measures denied freedom of transit to both Qatar as well as to third -country 
WTO Members seeking to ship to and receive goods from Qatar. WTO rules and commitments only 
allowed trade to be stopped in limited circumstances and yet, with  a few exceptions that were 
commercially important for the countries concerned, almost all goods and services trade had been 
frustrated and Qatar's citizen's intellectual property rights had been violated. These WTO -illegal 
measures were fundamentally at o dds with the multilateral system of rights and obligations that all 
WTO Members had accepted. Accordingly, it was appropriate for these measures to be resolved 
through the use of binding WTO dispute settlement mechanism. Qatar looked forward to 
prosecuting  its rights before the WTO Panel that would now be established to resolve the dispute 
between Qatar and the UAE.  
3.3.  The representative of the United  Arab Emirates  said that the UAE regretted that Qatar was 
requesting, for a second time, the establishment of a  panel to adjudicate a matter that fell outside 
the purview of the WTO and its dispute settlement system. As the UAE had explained at the DSB 
meeting on 23  October  2017, the measures that were the subject of the panel request had been 
announced on 5  June 2017 by the UAE Ministry of Foreign Affairs because of Qatar's refusal to 
cease supporting and funding terrorism. Eight other countries – seven of which were WTO 
Members – had taken similar measures against Qatar. This was clearly not a commercial dispute 
and there was not the slightest indication that the measures taken by the UAE sought to protect 
the interests of UAE producers, service providers or rights holders. Rather, the measures had been 
taken to protect the UAE's essential security interests and we re in full conformity with the UAE's 
obligations under the GATT, GATS and TRIPS Agreement. At the DSB meeting on 23  October  2017, 
Qatar had conceded that WTO Members had a right to take bona fide measures to protect their 
security. Further, in refusing to respond to the charges of supporting and funding terrorism, Qatar 
had made the point that these issues did not belong "in this Forum". Yet, despite these 
acknowledgements, Qatar had persisted in pursuing this matter in WTO dispute settlement 
proceedings. E very nation had the right to take measures necessary to protect its essential 
security interests. This was a bedrock principle enshrined in international law and it was reflected 
in GATT Article  XXI, GATS Article  XIVbis, and TRIPS Article  73. The UAE said that Members should 
urge Qatar to act responsibly by addressing, in the appropriate fora, the underlying concerns over 
its compliance with its international counter -terrorism obligations. The UAE could not agree to the 
establishment of a panel. Furthermore , it wished to state, for the record, that it believed that 
Qatar was attempting to use the WTO dispute settlement system to distract from the real issues – 
namely Qatar's support for extremism and terrorist organizations. A WTO Member was sovereign 
to det ermine whether a measure was necessary for the protection of its essential security 
interests. As such, the WTO simply had no authority to second -guess such a determination.  
3.4.  The representative of the Kingdom  of Bahrain  said that his country fully endorsed the 
statement made by the UAE. Bahrain was disappointed that Qatar had decided to make a second WT/DSB/M/404  
 
- 7 - 
 
request to establish a panel in this matter. As it had stated at the 23  October  2017 DSB meeting, 
Bahrain, like the UAE and Saudi Arabia, amongst others, had ad opted national security measures 
against Qatar. And, as Bahrain had stated previously, these measures were well within the rights 
granted to WTO Members under GATT Article  XXI, GATS Article  XIVbis, and TRIPS Article  73. 
Bahrain reiterated that the exceptions contained in the GATT Article  XXI, the GATS Article  XIVbis 
and TRIPS Article  73 were very clear. They provided that it was the invoking Member, and only the 
invoking Member, that carried the responsibility of assessing whether there was an "othe r 
emergency in international relations" and whether any security measures were "necessary". As 
such, Bahrain was of the view that a WTO dispute settlement panel could not judge the validity or 
motivation for the invocation of those exceptions, and simply d id not have the mandate, nor the 
tools, to resolve the politically sensitive issues that Qatar was raising at the present meeting. 
Bahrain continued to be astounded by Qatar's inconsistent and contradictory accusations on this 
matter, the latest being that  these clearly stated security measures could somehow achieve 
commercial objectives. In these circumstances, Bahrain believed that these claims, amongst the 
others that had been presented previously, were clearly misconceived and had no business at the 
WTO. 
3.5.  The representative of the Kingdom of Saudi  Arabia  said that his country wished to endorse 
the statement made by the UAE and also wished to second the statement made by Bahrain. As it 
had stated at the 23  October  2017 DSB meeting, Saudi  Arabia regretted t hat the establishment of 
a panel had been requested by Qatar for a second time. Saudi Arabia took this opportunity to 
assure the DSB that the measures referenced in the request were maintained pursuant to the 
security exceptions set out in Article  XXI of t he GATT  1994, Article  XIVbis of the GATS and 
Article  73 of the TRIPS Agreement. Furthermore Saudi Arabia believed that every Member retained 
the authority to determine for itself those matters that it considered necessary to protect its 
essential security interests, as was reflected in the text of these Articles, and as WTO Members 
had repeatedly recognized. Moreover, Saudi  Arabia did not recognize the "jurisdiction of treaty" or 
"treaty power" of the WTO to establish a panel to adjudicate issues that were clearly, and fully, 
within the national security concerns of each Member. Saudi Arabia reserved its right to reconfirm 
its objection to the assertion of jurisdiction in this dispute. However if, above this objection, a 
panel was established, Saudi Arabia w ould reserve its third -party rights with a clear assertion of its 
objection recorded.  
3.6.  The representative of Yemen  said that his country wished to express its regret to see this 
matter brought to the DSB's attention for a second time. Having followed up on the development 
of this issue, and related issues, Yemen sincerely believed that the subject matter did not belong 
to the DSB. Yemen supported the UAE's explanation and remained hopeful that this matter would 
be resolved.  
3.7.  The representative of Canada  noted  with disappointment that the dispute between Qatar and 
the UAE had progressed to this stage. It believed that a negotiated, political solution to this issue 
remained possible and it encouraged both parties to engage proactively and constructively with 
one another, before proceeding to the next phase of the dispute. Some delegations had suggested 
that the parties seek the assistance of the Director -General, through his good offices, in order to 
resolve the issue. Canada would support such an approach. It be lieved that a compromise solution 
was achievable, if there was goodwill between the parties.  
3.8.  The representative of Korea  said that his country noted that this dispute, notwithstanding its 
significant impact on trade, did not seem to be driven by purely com mercial considerations on the 
part of the responding Member, the UAE. In fact, there was no denying that this dispute was 
political in nature. On the other hand, it was in the interest of the WTO and all WTO Members to 
ensure a smooth flow of trade, minimi zing the potential negative effects of this dispute on 
bilateral, regional and global trade and its systemic implications for the multilateral trading 
system. In Korea's view, the most effective and fastest path to resolving this dispute would also be 
a political one, which was not within the remit of the WTO. It was essential to find a bilateral 
political agreement among the relevant parties to resolve this dispute, and that in turn would 
make a WTO dispute procedure unnecessary. Nonetheless, the panel in this dispute between Qatar 
and the UAE would be established at the present meeting in accordance with Article  6.1 of 
the DSU, since Qatar had requested its establishment for the second time. However, Members 
needed to bear in mind that the Panel procedures  for this dispute would require the dedication of a 
significant amount of resources of the WTO dispute settlement system at a time when the dispute 
settlement mechanism was already facing serious difficulties including workload issues. In this WT/DSB/M/404  
 
- 8 - 
 
regard, and considering the political nature of this dispute, Korea encouraged the relevant parties 
to make efforts in good faith to strengthen bilateral discussions with an aim of reaching a mutually 
acceptable resolution in an expeditious manner.  
3.9.  The representative of Egypt  said that his country wished to support the statements made by 
the UAE, Bahrain and Saudi Arabia. Egypt recalled its statement made on this matter at the 
previous meeting. Egypt believed that these measures were undertaken by the UAE in a manner 
that was WTO -consistent. The determination of an action that was necessary for the protection of 
a Member's essential security interests and the determination of such Member's essential security 
interests were within the sole discretion of that Member.  
3.10.   The representative of the United  States  said that the UAE had again indicated that its 
measures were justified on the basis of national security, as it had done at the 23  October  2017 
DSB meeting. As the United States had noted at the previous DSB meeting, iss ues of national 
security were political in nature and were not matters appropriate for adjudication in the WTO 
dispute settlement system. Every Member of the WTO retained the authority to determine for itself 
those matters that it considered necessary to t he protection of its essential security interests, as 
was reflected in the text of the GATT  1994 Article  XXI.1 Therefore, if the UAE formally invoked 
Article  XXI in defence of the challenged measures, the United States considered that the panel 
would lack the authority to review that invocation and to make findings on the claims raised in the 
dispute. The United  States recalled that under Article  7.1 of the DSU, a panel was to examine the 
matter referred to the DSB by the complaining party and "to make such  findings as will assist the 
DSB in making the recommendations or in giving the rulings provided for in that/those 
agreement(s) ". If Article  XXI was invoked, there were no findings by the panel that could assist 
the DSB in making the recommendations provid ed for in DSU Article  19.1.2 This was because the 
DSB could make no finding of WTO -inconsistency or recommendation to a Member to bring its 
measure into conformity with WTO obligations. Therefore, if a panel was established and if the UAE 
invoked Article  XXI, any findings should be limited to a recognition that Article  XXI had been 
invoked. Under these circumstances, the United States considered that the parties should resolve 
the issues raised in this dispute outside the context of WTO dispute settlement. If the parties were 
unable to resolve the issue bilaterally, the United  States encouraged the parties to request 
assistance from the Director -General through his good offices or from another person or WTO 
Member in which the parties had confidence. Further , if a panel was established, it should consult 
with the parties "to develop a mutually satisfactory solution ".3 
3.11.   The representative of China  said that his country took note of the panel request made by 
Qatar under the DSU to resolve its dispute with the UA E in connection with the measures relating 
to trade in goods and services, and trade -related aspects of intellectual property rights (DS526). 
China was following this dispute closely as it potentially involved the application of the security 
exception prov isions. First, China acknowledged that, under WTO rules, WTO Members had 
legitimate rights to defend their trade interests through the dispute settlement mechanism. Such 
rights should be respected. Second, China also recognized that the security exceptions  provided in 
the WTO Agreements were sensitive provisions relating to the sovereignty and security interests of 
Members. In a situation where the security exceptions had been invoked, Members should make a 
judgment as to whether the effective resolution of  the dispute at issue could be achieved through 
the WTO, and restrain itself to submit such dispute to the WTO. Third, at the same time, China 
believed that Members should faithfully fulfil their obligations and commitments under the WTO 
and had to use or invoke the security exception provisions on a bona fide basis.  
3.12.   The representative of Qatar  said that his country was concerned that the UAE had opted to 
entertain the DSB with a series of provable fabrications and rhetoric that was not befitting the 
WTO. Q atar noted that, despite these measures, it continued to adhere to and respect its 
multilateral and bilateral commitments. This included supplying the UAE with energy products 
essential to its economy. The UAE's continued commercial practices belied all of  its claims. Qatar 
                                                
1 The GATT  1994 Article  XXI(b) ( "Nothing in this Agreement shall be construed … (b) to prevent any 
contracting party from taking any action which it considers necessary  for the protection of its essential security 
interests  …") (italics added).  
2 DSU Article  19.1: "Where a panel or the Appellate Body concludes that a measure is inconsistent with 
a covered agreement, it shall recommend that the Member concerned b ring the measure into conformity with 
that agreement ". 
3 DSU Article  11: "Panels should consult regularly with the parties to the dispute and give them 
adequate opportunity to develop a mutually satisfactory solution ". WT/DSB/M/404  
 
- 9 - 
 
noted that the UAE had asserted an absolute unilateral right to be absolved of all of its substantive 
and procedural WTO obligations vis -à-vis Qatar, based purely on its bald assertion that its coercive 
attempts to isolate Qatar reflecte d a security concern. Qatar did not dispute the right of countries 
to take bona fide measures to protect their security. But this defence could not be self -regulating 
as that would threaten the integrity of the entire rules -based system. It was clear that the nature 
of any defence under WTO law was subject to multilateral oversight. The legal tests agreed to by 
Members were objective and were not left to the whim of individual decision makers in Member 
governments. The delegation of the UAE was simply incor rect to the extent that it considered that 
its measures were immune from review.  
3.13.   The representative of the United  Arab Emirates  said that his country would not comment on 
the first part of Qatar's statement. Issues of national security were political matte rs, not 
susceptible to review or capable of resolution by the WTO dispute settlement mechanism. Every 
Member of the WTO retained the authority to determine for itself those matters that it considered 
necessary for the protection of its essential security i nterests. This was reflected in the text of the 
GATT  1994 Article  XXI, the GATS Article  XIVbis and TRIPS Article  73. Qatar had ignored the 
fundamental distinction between the text of these national security exceptions, which provided 
Members with a broad d iscretion to make judgments regarding essential security interests, and the 
other WTO exceptions.  
3.14.   The DSB took note of the statements and agreed  to establish a panel in accordance with the 
provisions of Article  6 of the DSU with standard terms of reference . 
3.15.   The representatives of Afghanistan , Australia , Kingdom of Bahrain , Canada , China , Egypt , 
the European  Union , Guatemala , Honduras , Japan , Kazakhstan , Korea , Norway , the Philippines , 
the Russian  Federation , the Kingdom of Saudi  Arabia , Singapore , Chinese  Taipei , Ukraine , the 
United  States  and Yemen  reserved their third -party rights to participate in the Panel's proceedings.  
4  INDONESIA – MEASURES CONCERNING THE IMPORTATION OF C HICKEN MEAT AND 
CHICKEN PRODUCTS  
A.  Report of the Panel (WT/DS484/R and WT/DS484/ R/Add.1)  
4.1.  The Chairman  recalled that, at its meeting on 3  December  2015, the DSB had established a 
Panel to examine the complaint by Brazil pertaining to DS484. The Report of the Panel, contained 
in document WT/DS484/R and Add.1 had been circulated on 17  October  2017, as an unrestricted 
document. The Panel Report was now before the DSB for adoption at the request of Brazil and 
Indonesia. This adoption procedure was without prejudice to the right of Members to express their 
views on the Panel Report. The Chai rman invited the representatives of the parties to the dispute 
to present their views on the Panel Report.  
4.2.  The representative of Brazil  said that, by means of a joint request, Brazil and Indonesia had 
included this item on the DSB Agenda of the present mee ting. The item concerned the adoption of 
the Panel Report in DS484. Brazil was pleased with the findings and recommendations made by 
the Panel in its Report, circulated on 17  October  2017, which favoured Brazil's main concerns 
regarding Indonesia's trade b arriers on imports of chicken meat and chicken products. According 
to the Panel, Indonesia had been in breach of the SPS Agreement by delaying, without plausible 
justification, the sanitary recognition process of Brazil and Brazilian exporting establishmen ts. The 
panel could not identify any sanitary reason for the delay in these routine authorizations. The 
Panel had also found that the Indonesian import licensing regulations had created unjustified 
restrictions on trade in at least three  aspects: ( i) by es tablishing, through a "positive list 
requirement", a selective list of products subject to licensing, which had excluded some tariff lines 
for chicken meat and chicken products; ( ii) by limiting the purposes of use or place of sale of 
imported products; an d (iii) by not allowing under any circumstances the introduction of changes 
to the terms of the import licenses granted. After three years of dispute settlement proceedings, a 
final solution to this dispute would contribute to expanding the cooperation bet ween Brazil and 
Indonesia, in the light of both countries mutual interests in intensifying their political and economic 
relationship. As of the adoption of the Panel Report at the present meeting, Brazil expected 
Indonesia to inform the DSB of its intentio ns regarding the implementation of the DSB 's 
recommendations and rulings in this dispute, so as to ensure fair international market conditions 
for Brazilian products. Finally, Brazil considered that the successful outcome of the present case WT/DSB/M/404  
 
- 10 - 
 
reinforced the  importance of having fully functional WTO dispute settlement rules and proceedings, 
so that trade disputes could continue to find their proper institutional track.  
4.3.  The representative of Indonesia  said that Indonesia and Brazil had jointly placed this item , 
regarding the adoption of the Panel Report in DS484, on the DSB Agenda. By doing so, Indonesia 
and Brazil had agreed to not appeal the Report. In Indonesia's view, the joint agreement to not 
appeal reflected the mixed findings contained in the Panel Repo rt. This dispute had raised 
fundamental issues as to how a Member could properly structure its laws and regulations to 
promote food safety and to ensure compliance with its religious requirements. Indonesia bore a 
heavy burden to ensure both that the food available to Muslim Indonesians conformed to halal 
requirements and, more generally, that Indonesia's food supply was safe. This dispute involved 
Brazil's challenge against two  categories of Indonesian measures under the GATT  1994, the 
Agreement on Agricul ture, the Import Licensing Agreement and the Agreement on Sanitary and 
Phytosanitary Measures. The challenges involved an alleged unwritten overarching import 
prohibition resulting from the combination of several different measures with a policy objective of 
self-sufficiency; and, six individual measures. The six individual measures were: (i) the positive -
list requirement for chicken imports ; (ii) a requirement that imports of chicken be sold in facilities 
with cold storage such as hotels and fast food rest aurants; (iii) an alleged undue delay in the 
approval of veterinary health certificates for chicken from Brazil; (iv) certain aspects of Indonesia's 
import licensing regime; (v) the surveillance and implementation of Indonesia's halal slaughtering 
and labe lling requirements; and (vi) alleged restrictions on transportation of imported products by 
requiring direct transportation from the country of origin to ports in Indonesia.  
4.4.  With respect to the first category, the Panel had found that Brazil had not demonstrated the 
existence of the alleged overarching prohibition. In particular, the Panel had found that Brazil had 
not demonstrated that there was a link between Indonesia's policy objective of self -sufficiency and 
the specific Indonesian trade measures . With respect to the second category, the six  individual 
measures, the Panel had delivered mixed findings. The Panel had found that the positive list 
requirement was inconsistent with Article  XI:1 and was not justified under Article  XX(d) of the 
GATT  1994. The Panel had applied judicial economy to Brazil's claim under Article  4.2 of the 
Agreement on Agriculture. It had divided the intended use requirement into the substantive 
aspects and the enforcement aspects. It had found that, under the current import licensing 
regime, the substantive aspects of the cold storage requirements were not inconsistent with 
Article  III:4 of the GATT 1994 as there was an equivalent domestic measure. It did, however, find 
that certain enforcement aspects were inconsistent with Article III:4 and were not justified under 
Article  XX(d) of the GATT 1994. Concerning the third measure, the Panel had found that there was 
an undue delay in the approval of the veterinary health certificates while Indonesia was awaiting 
information related to halal -compliance assurances. The Panel had fur ther found that certain 
aspects of the fourth measure, Indonesia's import licensing regime, such as the application 
windows and the validity periods, had expired in the course of the proceedings. On the new 
validity period enacted during the proceedings, t he Panel had found that Brazil had failed to make 
a prima  facie case that it was inconsistent with Article  XI:1 of the GATT  1994, Article  4.2 of the 
Agreement on Agriculture and Article  3.2 of the Import Licensing Agreement. The Panel had also 
found that I ndonesia’s fixed license terms were inconsistent with Article  XI:1 of the GATT  1994 
and were not justified under Article  XX(d) of the GATT  1994. With respect to the fifth measure, the 
halal slaughtering and labelling requirements, the Panel had found that Brazil had not 
demonstrated that there was a violation of Article  III:4. Finally, the Panel had found that Brazil 
had not demonstrated that the sixth measure, Indonesia's direct transportation requirements, 
were inconsistent with Article  XI:1 of the GATT  1994 and Article  4.2 of the Agreement on 
Agriculture. In sum, the majority of the Panel's adverse findings had related to measures that had 
already been amended or terminated, such as the application windows and the validity periods. In 
essence, there had o nly been two  "new" measures that Brazil had challenged and that the Panel 
had found to be inconsistent with Indonesia's obligations under the applicable agreements. These 
"new" measures were the enforcement mechanism of the intended use requirement and the  undue 
delay in the approval of veterinary health certificates. In closing, Indonesia acknowledged the 
limited adverse findings of the Panel. It further noted that it would need a reasonable period of 
time to bring these measures, found to be inconsistent,  into conformity with its WTO obligations. 
Indonesia looked forward to continuing to work constructively with Brazil during these important 
next steps of the dispute.  
4.5.  The representative of the United  States  said that this dispute was of particular interest  to the 
United  States because it, along with New Zealand, had raised similar claims with respect to WT/DSB/M/404  
 
- 11 - 
 
Indonesia's import licensing regime. Indeed, the United States' claims had been upheld in the 
reports considered under the next Agenda item of the present m eeting. In general, the 
United  States was pleased that the Panel had found that many of Indonesia's measures with 
respect to the importation of animals and animal products were inconsistent with Article  XI:1 of 
the GATT  1994 and were not justified under Ar ticle XX of the GATT  1994. At the present meeting, 
however, the United States would like  to highlight a systemic concern with the Panel's approach 
regarding measures adopted after the DSB had established the Panel's terms of reference. As part 
of its defen ce, Indonesia had relied on the contention that it had amended or replaced certain legal 
instruments after the time of panel establishment. In fact, Indonesia contended that it had 
adopted two  different sets of changes, and that one of those changes had oc curred after the first 
panel meeting. As the United States had noted in its third -party submission to the Panel, such 
post-establishment activity should not have altered the scope of the measures considered by the 
Panel. Rather, pursuant to the Panel's ter ms of reference from the DSB under Article  7.1 of the 
DSU, and its task to make an objective assessment of "the matter" referred to the DSB under DSU 
Article  11, the measures were only those that had been set out in Brazil's panel request, as they 
had exis ted at the time of the Panel's establishment. The Panel, however, appeared to have 
considered all of the alleged amendments and replacements throughout the proceeding. The result 
was that instead of conducting a full and thorough examination of "the matter " within the Panel 's 
terms of reference, including the specific measures at issue pursuant to Article  6.2 of the DSU, the 
proceeding became an exercise in trying to analyse a moving target. By covering instruments 
adopted after Panel establishment, the par ties, the third parties, and the Panel had been impeded 
from conducting a thorough review. Indeed, it appeared that some of the instruments had been 
changed after the time that third parties had filed their written submissions. In these 
circumstances, thir d parties had been denied an opportunity to present their views on at least 
some of the measures covered by the Panel 's findings. There was no basis under the DSU for a 
panel to make findings on new measures that were not within its terms of reference as s et by the 
DSB. 
4.6.  The representative of Canada  said that his country wished to respond to the United  States' 
statement. In Canada's view, the suggestion that a panel lacked jurisdiction to examine and make 
findings about a measure that had been amended after the establishment of a panel was incorrect. 
A panel could examine and make findings about such a measure if that measure did not change 
the essence of the original measure that had been identified in the panel request. Otherwise, it 
would be very easy for a Member to avoid a panel's jurisdiction.  
4.7.  The DSB took note  of the statements and adopted  the Panel Report contained in 
WT/DS484/R and Add.1.  
5  INDONESIA – IMPORTATION OF HORTI CULTURAL PRODUCTS, A NIMALS AND ANIMAL 
PRODUCTS  
A.  Report of the Appellate Body (W T/DS477/AB/R and WT/DS477/AB/R/Add.1) and 
Report of the Panel (WT/DS477/R, WT/DS477/R/Add.1 and WT/DS477/R/Corr.1)  
B.  Report of the Appellate Body (WT/DS478/ab/R and WT/DS478/ab/R/add.1) and 
Report of the Panel (WT/DS478/R, WT/DS478/R/Add.1 and WT/DS478/R /Corr.1)  
5.1.  The Chairman  proposed that the two sub -items under Agenda item 5 be taken up together. 
He drew attention to the communication from the Appellate Body contained in documents 
WT/DS477/14 – WT/DS478/14 transmitting the Appellate Body Reports on: "Ind onesia – 
Importation of Horticultural Products, Animals and Animal Products", which had been circulated on 
9 November  2017 in documents WT/DS477/AB/R and Add.1 – WT/DS478/AB/R and Add.1. He 
reminded delegations that the Appellate Body Reports and the Panel  Reports pertaining to these 
disputes had been circulated as unrestricted documents. As Members were aware, Article  17.14 of 
the DSU required that: "An Appellate Body report shall be adopted by the DSB and unconditionally 
accepted by the parties to the dis pute unless the DSB decides by consensus not to adopt the 
Appellate Body report within 30  days following its circulation to Members. This adoption procedure 
is without prejudice to the right of Members to express their views on an Appellate Body report". 
The Chairman invited the parties to the dispute to present their views on the Reports before 
the DSB. WT/DSB/M/404  
 
- 12 - 
 
5.2.  The representative of New Zealand  said that her country welcomed the adoption of the 
Appellate Body and Panel Reports in " Indonesia – Importation of Hortic ultural Products, Animals 
and Animal Products". New Zealand thanked the Appellate Body, the Panel, the Secretariat, the 
parties and third parties for their hard work and constructive dialogue during the course of these 
proceedings. New Zealand particularly  thanked Indonesia for the constructive and collegial 
approach it had taken to these WTO proceedings. The positive tone during the hearings reflected 
the long -standing and mutually respectful bilateral relationship between Indonesia and 
New Zealand, and th e shared desire between the two countries to strengthen their important 
relationship. The findings of the Panel and Appellate Body had confirmed that Indonesia's import 
regimes for horticultural and animal products were inconsistent with key WTO obligation s. All 18 of 
the challenged non -tariff barriers at issue had been found by the Panel and Appellate Body to be 
inconsistent with Indonesia's obligations under Article  XI:1 of the GATT  1994. Following adoption 
of the reports at the present meeting, Indonesia  would need to bring its measures into conformity 
with its WTO obligations. New  Zealand looked forward to working, and partnering, with Indonesia 
towards achieving prompt, effective, durable and WTO -consistent compliance. This was in both 
countries' mutual  interest. New  Zealand welcomed the adoption of these Reports at the present 
meeting, and looked forward to resuming exports of high -quality New  Zealand agricultural 
products to Indonesian consumers, including a range of beef imports and horticultural impo rts that 
had been affected by Indonesia’s restrictions and prohibitions.  
5.3.  The representative of the United  States  said that the United States thanked the Panel, the 
members of the Division, and the Secretariat staff assisting them for their work in this dispute. 
The United  States also thanked its co -complainant, New Zealand, for the very close and fruitful 
collaborat ion throughout the dispute. The adoption of the reports in this dispute would bring to a 
close this stage of proceedings that had been ongoing since early 2013. For over four years, the 
United  States had been trying to resolve with Indonesia the issue of i ts highly trade -restrictive and 
blatantly WTO -inconsistent import licensing regimes. With the adoption of these reports, the 
United  States would again seek to work together with Indonesia to resolve this matter and bring 
its import licensing regimes into c ompliance with its WTO obligations. This dispute concerned 18 
separate measures that Indonesia imposed – primarily through its import licensing regimes – on 
the importation of horticultural products and animals and animal products. These measures 
included:  (i) a positive list, under which unlisted animal products were not permitted to be 
imported; ( ii) limited application windows and validity periods, and fixed license terms that 
restricted imports of covered products during a given period to the types and quantities pre -
approved by the Indonesian government; ( iii) a domestic purchase requirement; ( iv) seasonal 
restrictions on imports during the Indonesian harvest; ( v) restrictions on the use for which 
products could be imported; and ( vi) a requirement that imports were allowed only if domestic 
production was deemed insufficient. The Panel had found that each of the challenged measures 
was inconsistent with Article  XI:1 of the GATT  1994 and was not justified under Article  XX of the 
GATT  1994. Those findings o f inconsistency had now been confirmed on appeal.  
5.4.  On appeal, Indonesia had claimed that Article  4.2 of the Agreement on Agriculture applied to 
agricultural products to the exclusion of Article  XI:1 of the GATT  1994. In finding that each of the 
challenged m easures was inconsistent with Article  XI:1, the reports in this dispute soundly 
rejected Indonesia’s argument. To the contrary, the reports confirmed that Article  21.1 of the 
Agreement on Agriculture operated only to the extent of a conflict between the pr ovisions of the 
Agreement on Agriculture and the provisions of another covered agreement. The reports also 
rejected Indonesia's argument that the principle of lex specialis  was relevant in this context. 
Further, the reports confirmed that, in considering c laims under different provisions of the covered 
agreements, a Panel could order its analysis as it saw fit unless the order would affect the 
substantive outcome under the provisions at issue. Overall, the United States was pleased with the 
outcome in this dispute, which it expected would contribute to achieving a solution to this matter. 
The United States was disappointed, however, that the Division's report addressed certain of 
Indonesia's claims even as it rejected those claims. The United  States recogniz ed that the report 
appeared more succinct than some others, but even so, the report reached issues that were not 
necessary to resolve the dispute because the claims had no capacity to alter the DSB 
recommendations.  
5.5.  Under Article  3.3 of the DSU, the aim of the WTO dispute settlement system was "to secure a 
positive solution to the dispute ". Article  3.3 established that "[t]he prompt settlement of situations 
[of impairment of benefits] is essential" and Article  3.7 provided that "[r]ecommendations or 
rulings of the DSB shall be aimed at achieving a satisfactory settlement of the matter". To WT/DSB/M/404  
 
- 13 - 
 
contribute to these goals, Articles  7.1, 11, and 19 of the DSU established the key function of 
panels and the Appellate Body. Their responsibility was to make such findings  as would assist the 
DSB in making the recommendation to the responding Member to bring any WTO -inconsistent 
challenged measures into compliance with the relevant provisions of the covered agreements. On 
these bases, the Appellate Body had, in the past, re frained from interpreting provisions of the 
covered agreements where doing so was "unnecessary for the purposes of resolving [the] 
dispute ".4 This was the case where the responding Member's obligation regarding compliance 
would not change "irrespective of whether [the Appellate Body] were to uphold or reverse the 
panel's finding" on the issue.5 
5.6.  In such situations, the Appellate Body had "addressed" the issues raised by a claim, within 
the meaning of Article  17.6 of the DSU, by explaining that the claim coul d have no effect on the 
DSB recommendations and rulings and, on that basis, declining to make substantive findings on it. 
As the United  States had explained in its submission and during the appellate hearing, and as 
several other Members had agreed, once t he Division had found that Article  XI:1 continued to 
apply to agricultural products and had upheld the Panel's findings that each of the challenged 
measures was inconsistent with that provision, the Division could, and should, have refrained from 
substanti vely addressing the remainder of Indonesia' s claims. None of Indonesia's other claims 
had had any potential to alter the DSB recommendations and rulings. Nothing in the report 
suggested that the Division had not agreed that this was the case. Indeed, with respect to 
Indonesia’s claims under GATT  1994 Article  XI:2(c) and Article  XX, the report had acknowledged 
that substantively addressing the claims could have had no effect on the recommendations and 
rulings in the dispute.6 And with respect to the burden o f proof under Article  4.2, while the report 
suggested that the issue was "intertwined" with Indonesia's argument concerning the application 
of Article  21.1 of the Agreement on Agriculture7, the report had already entirely rejected 
Indonesia's argument that  Article  XI:1 of the GATT  1994 and Article  4.2 of the Agreement on 
Agriculture could conflict before reaching the issue of the burden of proof.8 Nevertheless, the 
report had substantively addressed all three claims. Indeed, even with respect to Indonesia's  
Article  XX claim, where the report had expressly agreed with the US argument that addressing the 
claim was not necessary9, the Division had nonetheless discussed the legal standard under 
Article  XX at some length and then, without analysis or further expl anation, declared the Panel's 
findings moot and of no legal effect.10 The United States was concerned with the approach in this 
report. Substantive review of claims not necessary to resolve the dispute between the parties not 
only used the Appellate Body's scarce resources unnecessarily, but it was not consistent with the 
role of the dispute settlement system set out in the DSU. With respect to adoption of the reports, 
the United States raised again an important systemic concern regarding the service on appe als of 
an Appellate Body member whose term had expired. As the United  States had explained at the 
September meeting of the DSB in the context of the "EU – Fatty Alcohol" dispute, Mr. Ricardo 
Ramírez Hernández's term had expired on 30  June 2017. The DSB had  taken no action to permit 
him to continue to serve as an Appellate Body member, and, therefore, he was not an Appellate 
Body member on the date of circulation of this report. The United States therefore considered that 
the implications for this report wer e the same as in the "Fatty Alcohol" dispute, specifically, that 
the report had not been issued consistent with the requirements of Article  17 of the DSU and so 
could not be an "Appellate Body report" subject to the adoption procedures reflected in DSU 
Article 17.14.  
5.7.  The United States supported the adoption of the "reports " of the Panel and the Division in 
this dispute, and understood that the other parties to the dispute did also. Article  3.7 of the DSU 
made it clear that "[t]he aim of the dispute settleme nt mechanism is to secure a positive solution 
to a dispute ". Therefore, as the parties considered that adoption of these reports would help them 
achieve that aim, the United States invited other Members to join a consensus to adopt the reports 
proposed for  adoption today, that was, the reports contained in WT/DS477/AB/R and 
WT/DS478/AB/R and the Panel Reports contained in WT/DS477/R and WT/DS478/R, as modified 
by the former reports.  
                                                
4 "US – Upland Cotton " (AB), paras. 5 10-511, 747; see also "India – Solar Cells " (AB), paras. 5.156 -
5.163.  
5 "US – Upland Cotton" (AB), para. 510. 
6 Appellate Report, paras. 5.63, 5.102 -103. 
7 Appellate Report, para. 5.37.  
8 Appellate Report, paras. 5.13 -5.18. 
9 Appellate  Report, paras. 5.102 -103. 
10 Appellate Report, paras. 5.91-101, 5.103.  WT/DSB/M/404  
 
- 14 - 
 
5.8.  The representative of Indonesia  said that her country's appeal in this disp ute, brought by 
New Zealand and the United States, had raised the following issues of fundamental importance 
with respect to the interpretation of the covered agreements: (i) whether there was a mandatory 
sequence of analysis between Article  XI:1 of the GA TT 1994 and Article  4.2 of the Agreement on 
Agriculture; (ii) which party bore the burden of proof with respect to the second element of 
footnote  1 to Article  4.2 of the Agreement on Agriculture; (iii) the proper order of analysis for 
panels to follow when  assessing defences under Article  XX of the GATT  1994; and (iv) in 
Indonesia's ground of appeal made in the alternative, whether WTO Members could still have 
recourse to Article  XI:2(c) of the GATT  1994 to carve out quantitative restrictions on agricultura l 
products from the application of Article  XI:1 of the GATT  1994. These were issues of critical 
importance not only to Indonesia, but also to many other WTO Members, especially developing 
countries. Indonesia had presented cogent legal arguments in support  of its position before the 
Appellate Body. Unfortunately, and to Indonesia's regret, the Appellate Body had not accepted 
Indonesia's arguments in this dispute. Indonesia was, of course, disappointed with the Appellate 
Body's reasoning and findings. Nevert heless, Indonesia accepted the outcome of this Appellate 
Body Report. Despite the outcome, Indonesia nevertheless wished to state that it was pleased with 
the Appellate Body's thoughtful consideration and engagement with each of the arguments 
presented by Indonesia in its written submissions and in the course of the hearing. This 
consideration had been fully reflected in the Appellate Body's Reports circulated to all Members. 
Therefore, Indonesia supported the adoption of these Reports, by negative consensu s, in 
accordance with Articles  16.4 and 17.14 of the DSU. Given that this dispute involved measures 
that were of profound importance to ordinary Indonesians in their daily lives, any changes to the 
challenged measures that had been found to be inconsistent  by the Appellate Body, and the Panel 
where applicable, would take a great deal of effort and time for Indonesia to implement. In 
closing, Indonesia wished to state that it recognized its WTO obligations and looked forward to 
constructive discussions with New Zealand and the United States with respect to the next steps in 
this complex process.  
5.9.  The representative of New Zealand  said that, regarding matters of procedure that had been 
raised, New  Zealand agreed with Indonesia and considered that the Reports is sued in DS477 and 
DS478 were Appellate Body Reports, and accordingly that the standard negative consensus 
adoption process set out in Article  17.14 of the DSU applied to their adoption. As New Zealand had 
stated on a number of occasions in the DSB, while i t was willing to discuss the concerns raised 
regarding Rule  15 of the Working Procedures for Appellate Review, the outcome of any such 
discussions could only be applied on a prospective basis.  
5.10.   The representative of Canada  said that his country had taken no te of the US statement and 
wished to briefly intervene in this respect. Canada disagreed with any suggestion that the service 
of Mr.  Ramírez on this appeal undermined the reverse consensus rule in Article  17.14 of the DSU. 
Like Indonesia and New Zealand, C anada also considered that the reverse consensus rule  applied  
in this case.  
5.11.   The representative of Australia  said that as a third party to these disputes, her country 
welcomed the Appellate Body Reports and supported the adoption of the Panel and Appellate Body 
Reports by the Membership at the present meeting, in the usual way, by negative consensus. The 
measures at issue in these disputes included a suite of prohibitions and restrictions imposed by 
Indonesia on imports of animals, animal products and hortic ultural products, such as bans on 
imports when domestic products were "sufficient", or limited licence validity periods and 
application windows, preventing long -term contractual arrangements. Such measures clearly had a 
negative impact on trade. The Appell ate Body had found unambiguously and comprehensively in 
favour of the co -complainants and had confirmed that Indonesia was in breach of its WTO 
obligations with respect to all 18  measures at issue. Accordingly, it was now time for Indonesia to 
bring those measures into compliance.  
5.12.   The representative of Brazil  said that his country had participated as a third party in these 
disputes and welcomed the conclusions reached by the Panel and the Appellate Body. The Panel 
had found, and the Appellate Body had confi rmed, that all 18 Indonesia's measures that had been 
raised by the co -complainants were prohibitions on importation or restrictions having a limiting 
effect on importation, and were thus inconsistent with Article  XI:1 of the GATT  1994. Some of the 
measures  also affected the exports of Brazilian products. The fact that New  Zealand, the 
United  States and Brazil, in a separate case (DS484), had had to bring disputes to challenge 
Indonesia's numerous trade restrictions was, in itself, a signal of how closed, an d sometimes WT/DSB/M/404  
 
- 15 - 
 
impenetrable, the Indonesian market was. The self -sufficiency principle, argued in part by 
Indonesia, could not be taken as a blank cheque, used to isolate Indonesia’s market from imports.  
5.13.   On the procedural issue raised by the United States, Br azil took note of the US views on this 
matter. Brazil believed that the participation of Mr. Ramírez in the current appeals strictly followed 
Rule 15 of the Working Procedures for Appellate Review, which had been in force since 1996, with 
no objection by W TO Members and continued to be in force. Moreover, at paragraph  1.17 of its 
Report, the Appellate Body had clarified that the participants and third participants had been 
informed that Mr. Ramírez was to be authorized to complete the disposition of the app eal, even 
though his term in office was due to expire before the completion of the appeal proceedings. 
Nothing in the record of the dispute showed that the United States had objected to this before the 
Appellate Body during the proceedings in these dispute s. The fact that the Report had been 
circulated after the end of Mr. Ramírez's mandate was of no consequence, given the strict 
application of the existing rule. If Members were to decide to address the situation posed by the 
United  States, and a consensual  outcome was to be found, it would then only be applied 
prospectively. Brazil considered that to allow flawed legal interpretations to put into question the 
fundamental rule of negative consensus for the adoption of the Reports should put all Members on 
alert. Brazil thus understood that nothing in the present scenario allowed a departure from the 
"negative" consensus rule set out in Article  17.14 of the DSU, upon which the appeals in these 
disputes should be adopted.  
5.14.   The representative of Chinese  Taipei  said that, as a third party to these disputes, his 
delegation also welcomed the adoption of the Panel and the Appellate Body Reports. With regard 
to the issue raised by the United  States, Chinese Taipei had some comments. First, to its 
knowledge as a third p articipant to the appeal, none of the parties or third parties had ever raised 
the Rule  15 issue during the course of the appeal. Mr. Ramírez's term had expired on 
30 June 2017, the hearing had been held on 28 -29 August  2017, and the Report had been issued  
later. In this regard, the parties that had wished to take issue with Mr. Ramírez's legal standing 
would have had ample opportunity to do so. In Chinese  Taipei's view, the Appellate Body was in a 
much better position than the DSB to address this issue. Th e institutional structure of the 
Appellate Body allowed it to examine details of the legal arguments, if any. Furthermore, by 
raising this issue in the course of the appeal, the parties could well avoid the alleged violation 
altogether. The DSB, at the mos t, could offer only ex post solutions.  
5.15.   Second, Chinese Taipei understood that every Member had the right to express its views on 
an Appellate Body Report under Article  17.14 of the DSU. On the other hand, if Members asked 
the DSB for a decision on whether or not an Appellate Body Report was prepared in accordance 
with the relevant DSU rules, assuming for the sake of argument that the DSB indeed had the 
authority to make such decision, then, in accordance with Article  2.4 of the DSU, that decision 
should be taken by positive consensus. In addition, the requesting Member should follow the rules 
of procedure for DSB meetings, which would mean, for example, the need to inscribe an item on 
the DSB Agenda in due time. Finally, Chinese Taipei emphasized that the "n egative consensus" 
rule was a critical element of the WTO dispute settlement mechanism. For many smaller and 
medium -sized Members, it  was often the basis on which their confidence in the mechanism was 
built. Chinese Taipei therefore urged Members to exerci se special prudence when choosing which 
course of action to take, and try to avoid any chance of shaking the foundations. It believed that a 
constructive proposal should, at least to somewhat extent, generate sympathies, not raise 
concerns.  
5.16.   The representat ive of China  said that his country, as a third party in these disputes, 
welcomed the adoption of the Panel and Appellate Body Reports in "Indonesia – Importation of 
Horticultural Products". China noted the procedural issues that had been raised by the 
United States. Rule  15 of the Working Procedures for Appellate Review stated that: "a person who 
ceases to be a member of the Appellate Body may, with the authorisation of the Appellate Body 
and upon notification to the DSB, complete the disposition of any app eal to which that person was 
assigned while a Member, and that person shall, for that purpose only, be deemed to continue to 
be a member of the Appellate Body ". China believed that, as it had stated at the 23  October  2016 
DSB meeting, Mr. Ramírez's service  in this dispute was consistent with Rule  15 of the Working 
Procedures for Appellate Review.  WT/DSB/M/404  
 
- 16 - 
 
5.17.   The representative of the European  Union  said that his delegation noted that the DSU 
excluded the right of any WTO Member to block the adoption of panel or Appella te Body reports. 
This was a central feature of the DSU, and a major difference with the dispute settlement 
mechanism that operated under the GATT  1947.  Article  17.14 of the DSU was clear: "[a]n 
Appellate Body report shall be adopted by the DSB and uncondit ionally accepted by the parties to 
the dispute unless the DSB decides by consensus not to adopt the Appellate Body report […]". The 
EU understood that there was no formal objection at the present meeting to the adoption of the 
Appellate Body Reports. But i n any event, the EU wished to emphasise that both the Panel and 
Appellate Body Reports would in any event be "adopted by the DSB" within the meaning of 
Articles  16.4 and 17.14 of the DSU. The EU recalled that these provisions were without prejudice 
to the rights of Members to express their views on reports, and such views were being expressed 
at the present meeting. However, although there was a right to express a view, there was no right 
to veto and any theories underpinning such right to veto were without  any merit.  
5.18.   The representative of Mexico  said that the working procedures of the Appellate Body 
provided for the practice whereby a person whose term of office as an AB  member ended may 
complete the disposition of any appeal to which he or she had been ass igned while an AB member. 
This procedure was common in other jurisdictions where arbitrators had fixed terms of office 
(i.e. other international forums and Members' domestic procedures). In this regard, Article  17.9 of 
the DSU provided that working procedu res shall be drawn up by the Appellate Body in consultation 
with the DG and the Chairman of the DSB, and communicated to Members. The rule contained the 
AB's working procedures had been put in place in accordance with this provision and the 
long-standing W TO practice. The AB members had completed work in 14  cases following the expiry 
of their terms. In conclusion, the AB's practice should not be considered irregular, new or 
unfounded. It had existed for more than 20  years, without opposition from any Member . Mexico 
therefore agreed with the view previously expressed by other delegations that the situation of 
Mr. Ramírez was in conformity with the WTO provisions and that these Reports should be 
considered the AB Reports and should be adopted by negative conse nsus. Mexico welcomed the 
adoption of the Reports.  
5.19.   The representative of Guatemala  said that his country noted the views expressed by the 
United  States, however, Guatemala was not ready to accept that a unilateral determination by a 
WTO Member on the status of an Appellate Body Report could bring about a change in the way in 
which Reports were adopted. The Appellate Body Reports under discussion should be adopted 
without any conditions of conformity, as had been put forward under Article  17.14 of the D SU.  
5.20.   The representative of Colombia  said that his country noted the views expressed regarding 
these disputes. Colombia was not a third party to these disputes, but noted that the Panel Reports 
and Appellate Body Reports had been put forward in the same way  as had been done in the past. 
In this regard, Colombia understood that the Appellate Body had not acted in an inappropriate 
way. It had acted in conformity with the DSU and Rule  15 of the Working Procedures for Appellate 
Review.  
5.21.   The representative of Turkey said that his country, like other Members, believed that the 
Appellate Body Reports, under Agenda item  5, should be adopted by negative consensus.  
5.22.   The DSB took note  of the statements . 
5.23.   The DSB  adopted  the Appellate Body Report contained in WT/DS477/AB/R and Add.1, and 
the Panel Report contained in WT/DS477/R, Add.1 and Corr.1, as modified by the Appellate Body 
Report ; and 
5.24.   The DSB adopted  the Appellate Body Report contained in WT/DS478/AB/R and Add.1, and 
the Panel Report contained in WT/DS478/R, Add.1 and Corr.1, as modified by the Appellate Body 
Report.  
6  PROPOSED NOMINATIONS  FOR THE INDICATIVE L IST OF GOVERNMENTAL AND 
NON-GOVERNMENTAL PAN ELISTS  
6.1.  The Chairman  drew attention to document WT/DSB/W/608, which contained additional 
names proposed by Argentina for inclusion on the Indicative List of Governmental and WT/DSB/M/404  
 
- 17 - 
 
Non-Governmental Panelists, in accordance with Article  8.4 of the DSU. He proposed that the DSB 
approve the names contained in document WT/DSB/W/608.  
6.2.  The DSB so agreed . 
7  APPELLATE BODY MATTE RS 
A.  Statement by the Chairman  
B.  Appellate Body appointments : Proposal by Argentina;  Brazil;  Chile;  Colombia;  
Costa  Rica;  Ecuador;  El Salvador;  the European  Union;  Guatemala;  Honduras;  
Hong  Kong, China;  Mexico;  Nicaragua;  Norway;  Pakistan;  Peru;  the Russian  Federation;  
Singapore;  Switzerland;  the Separate Customs Territory of Taiwan, Penghu, Kinmen and 
Matsu; Turkey;  Uruguay and Viet  Nam  (WT/DSB/W/609)  
7.1.  The Chairman  proposed that the two sub -items under this Agenda item be taken up together. 
First, he would make a short statement to update delegations about the ongoing informal 
consultations on AB matters. Subsequently, he would invite Mex ico to introduce the proposal 
contained in document WT/DSB/W/609 and then he would open the floor to other delegations to 
speak.  
7.2.  With regard to the first sub -item regarding the Appellate Body matters, the Chairman said 
that as he had indicated at the 23  October  2017 DSB meeting, informal consultations had 
continued on AB matters in order to find a way forward through the current impasse. These 
consultations were being held at different levels, both political and technical. It seemed that a 
sense of mutual t rust had yet to be forged among key Members. Also, as he had stated several 
times, Members needed concrete ideas which could provide a viable solution to the issues facing 
the DSB. In this respect, the Chairman  took note of informal and exploratory technic al discussions 
taking place on voluntary basis. He urged all Members to continue conversations in a positive 
spirit.  
7.3.  With regard to the second sub -item, the Chairman drew attention to the proposal contained 
in document WT/DSB/W/609 and invited the represen tative of Mexico to introduce the proposal 
submitted on behalf of all of the proponents.  
7.4.  The representative of Mexico  said that Argentina;  Brazil ; Colombia ; Chile; Guatemala ; 
Mexico ; Peru; the European  Union ; Costa  Rica; Ecuador ; El Salvador ; Honduras ; Hong Kong, 
China; Nicaragua ; Norway ; Pakistan ; the Russian  Federation ; Singapore ; Switzerland ; the 
Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu; Turkey ; Uruguay and Viet  Nam 
had agreed to submit a joint proposal to launch the selection proce sses. Mexico also wished to 
announce that Korea had expressed its intention to co -sponsor the proposal. Mexico, speaking on 
behalf of the 52  proponents, said that the joint proposal reflected the increased concern of many 
Members with the current situation , that was seriously affecting the workings of the Appellate 
Body and of the dispute settlement system more generally, to the detriment of the WTO and 
against the best interests of its Members. It was the responsibility of WTO Members to safeguard 
and pres erve the Appellate Body, the dispute settlement system and the multilateral trading 
system. Members could not remain passive in the present circumstances. This was the seventh 
consecutive time that a draft proposal on the procedures to carry out the select ion process for new 
Appellate Body members had been submitted to the DSB. This draft sought to fill the two 
vacancies as well as the vacancy that would arise within a few weeks. The proposal contained four 
elements: (i) to start three selection processes: one to replace Mr. Ricardo Ramírez -Hernández  – 
whose second term had expired on 30  June 2017, another one to fill the vacancy which had arisen 
with the resignation of Mr. Hyun Chong Kim with effect from 1  August  2017, and a third to replace 
Mr. Peter Van d en Bossche – whose second term would expire on 11  December  2017; (ii) to 
establish a Selection Committee; (iii) to set  22 December  2017 as the deadline for the submission 
of candidacies; and (iv) to request that the Selection Committee issue its recommend ations no 
later than by the regular DSB meeting in March  2018. The proponents were flexible in the 
determination of the deadlines for the selection process. Mexico urged all Members to support this 
proposal. If not , Members risked a crisis with far -reachin g consequences in 2018.  WT/DSB/M/404  
 
- 18 - 
 
7.5.  The representative of the European  Union  said that his delegation referred to its statements 
made on this matter at previous DSB meetings, starting in February  2017. The EU strongly 
regretted the inability of the DSB for these past several months to launch the selection processes 
for new Appellate Body members. With each passing month, the gravity and urgency of the 
situation increased. In fact, the present meeting was the last regular DSB meeting before a third 
vacancy would arise o n the Appellate Body when the second term of Mr. P eter Van den  Bossche 
would expire on 11  December  2017. The next time, the DSB would meet, there would only be four 
Appellate Body members left. The WTO Members had a shared responsibility to resolve this is sue 
as soon as possible. The EU referred to the proposal regarding the AB matters made by the EU 
and 22 other Members (WT/DSB/W/609). The EU thanked all Members that co -sponsored the 
proposal and invited all other Members to endorse the proposal so that th e appointments could be 
made as soon as possible.  
7.6.  The representative of the United  States  said that the United States thanked the Chairman for 
his continued work on these issues. The United States was not in a position to support the 
proposed decision. Mr.  Ramírez continued to serve on an appeal, despite having ceased to be a 
member of the Appellate Body nearly 5  months ago. In the US view, the United  States  could not 
consider a decision launching a selection process when a person to be replaced continued t o serve 
and decide appeals after the expiry of their term. As had been noted in past DSB meetings, the 
DSB had a responsibility under the DSU to decide whether a person whose term of appointment 
had expired should continue serving. The United States consid ered that Members needed to 
discuss and resolve that issue first before moving on to the issue of replacing such a person. As it 
had also noted previously, the United States would welcome Mr. Ramírez's continued service on 
the remaining appeal to which he had been assigned prior to 30  June 2017. In fact, it did not 
understand any Member to object to his service on this appeal. In that circumstance, it should not 
be difficult for the DSB to take up its responsibility to adopt an appropriate decision. The 
United States had continued to convene meetings to discuss this issue informally with a number of 
delegations. This outreach had been productive in that the United States believed that it had heard 
a general recognition that the DSB had the authority to set t he term of an Appellate Body member 
under DSU Article  17.2. It followed that the DSB had a responsibility to decide whether a person 
should continue serving beyond that term. The United States had also heard agreement from 
several delegations that Rule  15 of the Working Procedures for Appellate Review raised difficult 
legal questions that the DSB should address. In the course of its engagement, the United States 
had not heard delegations reject the importance of the issue it had brought to the DSB 's attenti on. 
To the contrary, it had heard a willingness of delegations to work together on this issue to find a 
way forward. The United States therefore would continue its efforts and its discussions with 
Members and with the Chairman to seek a solution on this im portant issue.  
7.7.  The representative of Canada  said that his country deeply regretted that the DSB had been 
unable to fulfil its legal obligation under DSU Article  17.2 to appoint Appellate Body members as 
vacancies arose. Canada agreed that it was time to st art a process or processes to select new 
Appellate Body members for the two current vacancies and the third vacant position that would 
become available in December  2017. Canada considered that it was in every Member's interest to 
maintain and nurture the W TO's effective and impartial dispute resolution mechanism, of which the 
Appellate Body was a key component. That mechanism was a central element of the robust 
rules-based multilateral trading system, which had provided security and predictability since its  
creation. To remain robust, the system – and in particular the dispute resolution mechanism – 
needed the continued support of every Member. A less predictable system would not bring more 
prosperity to all Members, and there was no guarantee that a less pr edictable system would bring 
more prosperity to any Members. Like other Members, Canada was disappointed that the 
United  States had linked the start of the Appellate Body selection processes to the resolution of 
certain procedural concerns it had shared wi th the DSB. However, Canada remained committed to 
working with other interested Members – including the United States – with a view to finding a 
way to address those concerns so as to allow the selection processes to start and be completed as 
soon as possi ble. 
7.8.  The representative of Norway  said that her country was one of the co -sponsors of the 
proposal contained in WT/DSB/W/609  and wished to be associated with the statement made by 
Mexico. Norway's key priorities continued to be to ensure the well -functioni ng of the dispute 
settlement system and of the Appellate Body. Norway did not agree that procedural issues should 
be linked to the process of filling vacancies on the Appellate Body. Vacancies should be filled as 
they arose. Norway was open and willing to discuss systemic issues, but this discussion should be WT/DSB/M/404  
 
- 19 - 
 
kept separate from filling the vacancies on the Appellate Body. Once again, Norway urged all 
Members to exercise their flexibilities on this matter in order to overcome the deadlock faced by 
the DSB fo r the benefit of the multilateral trading system and all its Members so as to prevent a 
serious crisis in the dispute settlement pillar.  
7.9.  The representative of Korea  said that his country wished to echo Mexico's statement made on 
behalf of the group of prop onents. As had already been noted by Mexico, Korea had decided to 
support the joint proposal as a co -sponsor. On the issue raised by the United  States regarding 
Rule 15 of the Working Procedures for Appellate Review, Korea stood ready to engage in the 
discussions in good faith. However, it emphasized that the selection process should be launched 
independently without being linked to the discussions on the Rule  15 issue. In this regard, Korea 
regretted that the DSB had failed to reach a consensus at the pres ent meeting. However, Korea 
still hoped that consensus could be reached soon, on the basis of this proposal, so that the DSB 
could make a decision to immediately launch the selection process.  
7.10.   The representative of Chile said that his country was concerned about the current situation 
regarding the Appellate Body selection processes. Furthermore, the issue was linked to other 
matters, which should be dealt with on their own merits and should not stand in the way of 
launching the Appellate Body selection proce sses. Chile noted that it was a co -sponsor of the 
proposal that had been presented by Mexico.  
7.11.   The representative of Chile, speaking on behalf of the GRULAC countries, said that, first, the 
countries in question recognized the Chairman's efforts to seek a s olution to the impasse in 
launching the Appellate Body selection process, including the Chair's consultations, which had 
allowed Members to express their views on this matter. Second, Chile voiced its deep concern 
about the present situation which stood in  the way of the proper functioning of a central WTO 
body. If the problem were to persist, it could virtually paralyze the Appellate Body and stand in the 
way of solving disputes. With the delay in launching the selection process, there were now two 
vacant posts in the Appellate Body. Third, the present situation gave rise to major systemic 
concerns. It could undermine the credibility and image of the WTO, in particular considering the 
complex international state of affairs that would have a negative impact on the multilateral trading 
system. Fourth, Chile noted the concerns that had been raised regarding the functioning of the 
dispute settlement system and the decision -making process. The concerns that had been raised 
stood in the way of Members being able t o fulfil their legal responsibilities to fill the existing and 
upcoming Appellate Body vacancies. Nothing should stand in the way of the operation of the 
dispute settlement system, including the concerns that had been raised by some Members. Fifth, 
Chile u rged the Member opposing the initiation of the selection process to reconsider its position. 
The blockage was serious and should not be linked to a distinct, separate issue which had to be 
looked at on its own merits. Members needed to solve the situation as quickly as possible in order 
to comply with their legal obligations. Finally, Chile called on the Chairman to continue to seek a 
solution to the impasse so as to ensure that all necessary actions could be taken to resolve this 
matter.  
7.12.   The representative  of Chinese  Taipei  said that his delegation joined other delegations in 
thanking both the Chairman and the Secretariat for all their efforts over the past few months. 
Chinese  Taipei was deeply disappointed to see that Members were still unable to solve the  
prolonged deadlock. It emphasized that the credibility of the Appellate Body was fundamental to 
the impartiality, integrity and key values of the multilateral trading system. The Appellate Body 
stood as the final arbiter in disputes. It ensured a rules -based, rather than a power -based, system, 
in which every WTO Member could participate on an equal basis. This was particularly important 
for the smaller and medium -sized Members because such Members could bring their complaints 
before the adjudicating body i f they believed their economic benefits were being improperly 
infringed. Compared with small Members, larger Members could easily "flex their muscle" if their 
benefits were infringed. In short, a malfunctioning dispute settlement system did not affect the 
interests of large Members as much as smaller Members. Moreover, at a time when the negotiating 
function of the WTO was having great difficulty in moving forward, the quasi -judicial arm of the 
WTO had assumed even greater importance. Chinese Taipei strongl y supported a rules -based 
multilateral trading system. It agreed with the other Members that the protracted vacancies on the 
Appellate Body had already had an impact on the overall effectiveness of the system. In Chinese 
Taipei's view, every Member of the WTO had a systemic interest in ensuring the proper functioning 
of the Appellate Body. At the very least, Members had to fulfil their obligations under Article  17.2 
of the DSU. Chinese  Taipei therefore greatly appreciated the opportunity to contribute to th e WT/DSB/M/404  
 
- 20 - 
 
system by supporting the proposal (WT/DSB/W/609). Chinese Taipei called on Members to launch 
the selection processes soon as possible. Given the urgency of the matter, it suggested that 
Members adopt a more solution -oriented approach. Members should be e ver-mindful of the key 
values enshrined at the heart of the WTO system, instead of being distracted by minor procedural 
issues. The great need at present was to restore the credibility and effectiveness of the Appellate 
Body, and not to cast a shadow over it. Chinese Taipei urged all Members to engage, in a spirit of 
pragmatism, to ultimately reach a consensus in the interests of the entire WTO Membership.  
7.13.   The representative of New Zealand  said that her country was concerned by the current 
impasse, and cons idered that launching selection processes should be a routine matter. 
New Zealand regretted the DSB's failure to do so at the present meeting. Delays in appointing 
Appellate Body members threatened the efficient and effective functioning of the dispute 
settlement system, and had the potential to undermine the broader multilateral trading system. 
New Zealand welcomed the fact that there was now a single proposal to launch the selection 
process to fill the three positions and thanked the delegations involved for their hard work. As it 
had stated previously, New  Zealand was flexible on how these processes should be carried out and 
it could, of course, join any consensus on the new proposal. The key point was that Members 
launch the processes as soon as possible . New Zealand did not agree with the linkage that was 
being drawn between launching the selection process, and other procedural issues. However, it 
remained willing to engage in conversations on either topic. New Zealand again called on all 
Members to be f lexible and pragmatic and to allow the launching of the selection processes for new 
Appellate Body members as soon as possible.  
7.14.   The representative of Australia  said that her country welcomed the circulation of a single 
proposal by a group of Members to beg in the selection processes to fill the current and upcoming 
Appellate Body vacancies. Australia thanked the proponents for their continued efforts in this 
regard. Like others, Australia would have been ready to join consensus at the present meeting to 
comm ence the selection processes on the basis of the joint proposal. It regretted that, once again, 
such consensus had eluded the DSB at the present meeting. Australia referred to its statements 
made in previous DSB meetings on this matter which it would not r epeat. It remained open to 
constructive discussions regarding the outstanding concerns raised by Members in the context of 
the appointment process for Appellate Body candidates. It hoped that other Members would 
similarly demonstrate their commitment to Me mbers' collective responsibility of the custodianship 
of the dispute settlement system and work together to find a mutually acceptable way forward.  
7.15.   The representative of Singapore  reiterated his country's serious systemic concern regarding 
the lengthy delay in launching the Appellate Body selection process. At the 23  October  2017 DSB 
meeting, Singapore had expressed its flexibility in going along with either the proposal from the 
EU or the proposal from the group of Latin American Members, and had stated that it might be 
useful to work towards a single text so that the DSB could take a decision to launch the Appellate 
Body selection processes once the impasse had been resolved. Sinc e the 23  October  2017 DSB 
meeting, both proposals had been integrated into a single text of which Singapore was a 
co-sponsor. Given its workload and significance, a fully -staffed Appellate Body was crucial for the 
proper functioning of the WTO dispute sett lement system. To this end, it was essential that the 
vacancies on the Appellate Body were expeditiously filled while those systemic issues that had 
been raised could be discussed in a separate process. Singapore stood ready to engage 
constructively and wo rk with other Members, as well as the Chairman, to help resolve this 
impasse.  
7.16.   The representative of Switzerland  said that his country thanked the Chairman for his update 
on this matter. Switzerland reiterated the deep concerns that had been expressed at pr evious DSB 
meetings about the difficulties that kept preventing the re -establishment of a fully staffed and fully 
functional Appellate Body – a key component of the multilateral trading system – and the 
detrimental consequences these difficulties increasin gly had for this system. Switzerland welcomed 
the now joint proposal for the launch of selection processes for the three AB vacancies. It had 
therefore added its name to the list of co -sponsors, and had associated itself with the statement 
made by Mexico. Switzerland called on all Members, and especially key Members, to engage fully, 
with a sense of urgency, in substantive discussions on issues raised with a view to identifying a 
consensual way forward. Switzerland was ready to contribute to such a process.  
7.17.   The representative of Brazil  said that this was the last regular DSB meeting in  2017. He 
recalled that the issue regarding the Appellate Body selection processes had been raised for the WT/DSB/M/404  
 
- 21 - 
 
first time in February  2017. This meant that Members had now been una ble to comply with 
Article  17.2 of the DSU for almost a year. While Brazil was pleased to see that more than 
50 Members were supporting the proposal to launch the AB processes to fill the three vacancies, 
the current deadlock also meant that Members were f alling short of their collective responsibility to 
preserve the crucial pillar of the rules -based multilateral trading system. The function of law in the 
multilateral trading system was not only to resolve disputes but also to "provide an operational 
system for securing values that we all desire". Brazil believed that most Members would agree that 
the values reflected in the dispute settlement system, and in the Appellate Body, were: 
independence, professional competence, efficiency, and clear and high -quality reports at both 
panel and appeal's stage. Brazil believed that it was against this axiological benchmark that 
Members needed to assess the functioning of the dispute settlement system and the Appellate 
Body as well as any proposals for improvements or changes in this regard. Although little 
information had been conveyed by the Member interested in proposing changes to the Working 
Procedures for Appellate Review, Brazil was open to discuss new ideas and work on improvements 
that could be beneficial to al l Members. However, any such changes must respect the crucial 
elements of independence and the proper functioning of the dispute settlement system. This 
meant that any proposal to change the DSU or the AB Working Procedures, albeit welcome in an 
effort to improve the system and adjust it to new developments in the WTO's legal and economic 
environment, should be tested and discussed against the values Brazil had just referred to. 
However, this was a challenge. Brazil wondered what value was discernible in th e efforts to change 
Rule 15 of the Working Procedures for Appellate Review, if the result of such a change would be to 
block and paralyse the functioning of the Appellate Body. In a horizontal legal order such as in 
international trade law, the task of asc ertaining purpose and values seemed complicated and 
work-intensive. However, Members could not start doing some editing work without a blueprint of 
the final framework and without knowing in advance what would be the vision and the final result. 
If Members  were able to agree on the essentials, the rest would follow more easily. If Members 
could solidify their ideas, together sort them out and cement the good ideas they could perhaps 
make progress. There were certainly many aspects that could be discussed op enly and in good 
faith, in this and other fora, in order to improve the system. Besides several ideas that had already 
been put forward, Members could be mindful of Article  17.9 of the DSU, which could be seen as a 
space for a respectful institutional dial ogue between the Appellate Body and the Membership, 
through the Chairman of the DSB. The concerns raised could be discussed in the DSB in an 
expedited manner. Naturally, however, it was difficult to see how any of these issues or concerns 
could be more urg ent or more pressing than the preservation of the full capability of the Appellate 
Body. In conclusion, Brazil hoped that Members would be able to restore the composition of the 
Appellate Body, as soon as possible. At the same time, Members could also work  on other 
improvements to the system, as long as its independence and impartiality was preserved.  
7.18.   The representative of Indonesia  said that her country wished to welcome and express its 
support for the Members' efforts to resolve the issue of the appointme nt of new Appellate Body 
members, as set out in document WT/DSB/W/609. Indonesia wished to express its views about 
the current situation regarding the vacancies on the Appellate Body. As Members were all aware, 
the WTO was currently facing a situation wher e Members had failed to reach consensus on how to 
select the successors of Appellate Body members whose mandates had expired or would soon 
expire. Indonesia had also taken note of a certain Member's concerns regarding the Reports that 
had been issued by fo rmer members of the Appellate Body. Indonesia believed that the DSB had 
been entrusted to resolve trade disputes between Members. It had also been widely believed to be 
the essential element to sustain the centrality of the WTO. However, Indonesia also bel ieved that 
the present situation would put the DSB’s work into jeopardy and should be addressed in a serious 
manner. With regard to the selection processes, Indonesia was of the view that any systemic 
concern raised by a certain Member should not be linked  to the decision to start the selection 
process to fill the vacancies on the Appellate Body which, according to Article  17 of the DSU, had 
to be filled as they arose. Hence, the selection process should be launched immediately in order to 
keep the DSB’s wo rk moving forward.  
7.19.   The representative of the Philippines  said that her country commended the European Union 
and the group of Latin American countries for their flexibility to make a joint proposal contained in 
WT/DSB/W/609. The Philippines noted that some other Members had co -sponsored this proposal. 
The Philippines placed great importance on the WTO's dispute settlement system, including the 
Appellate Body, which played a crucial role in providing security and predictability to the 
rules-based multilateral  trading system. In this regard, the Philippines highlighted its systemic 
concerns about the lengthy delays in launching the Appellate Body selection process. There were WT/DSB/M/404  
 
- 22 - 
 
currently two vacancies on the Appellate Body, and a third  vacancy would arise on 
11 December  2017. The effective functioning of the dispute settlement system was hinged on the 
Appellate Body, which was meant to have a full complement of seven members to hear appeals 
from panel cases. To this end, the vacancies had to be filled expeditiousl y. The Philippines hoped 
that a consensus could be reached for a DSB decision to launch the Appellate Body selection 
process as soon as possible. The Philippines stood ready to engage constructively with other 
Members in order to resolve this deadlock.  
7.20.   The representative of China  said that his country welcomed the current proposal that had 
been co -sponsored by Latin American Members, the EU and many other Members. With more than 
50 Members co -sponsoring this proposal, and many previous speakers, China suppo rted launching 
the Appellate Body selection processes without further delay. China had taken note of the so called 
"systemic concerns" of the United  States with respect to Rule  15 of the Working Procedures for 
Appellate Review. While the issue could have b een discussed separately, linking this issue with 
launching the selection processes would only undermine the proper functioning of the dispute 
settlement system and the credibility of the multilateral trading system, especially at a time of the 
increased D SB workload. China shared the concerns of previous speakers and urged the 
United  States, once again, to demonstrate flexibility and fulfil its commitment to the multilateral 
trading system.  
7.21.   The representative of  the Bolivarian Republic of Venezuela  said that his country thanked the 
proponents for the proposal contained in WT/DSB/W/609. Venezuela supported the statement 
made by Chile on behalf of the GRULAC countries and reiterated its serious concern over the 
lengthy delay in starting the selection process for the remaining vacancies on the Appellate Body. 
In this regard, it considered that it was a priority for the Organization to begin the selection 
processes set out in the proposal without delay, in an independent fashion, and without a linkage 
to other matters under the DSB. Venezuela called upon Members to demonstrate the necessary 
flexibility to enable the DSB to overcome these difficulties.  
7.22.   The representative of Hong Kong, China  said that her delegation thanked the Chairman for 
his update on th is matter. Hong Kong, China was one of the co -sponsors of the proposal on the 
Appellate Body member selection process that had been introduced by Mexico. It associated itself 
with the statement made by Mexico on behalf of the group of co -sponsors. As it ha d repeatedly 
expressed at previous DSB meetings, Hong Kong, China was deeply concerned about the 
prolonged impasse in the launching of the Appellate Body selection process which would severely 
affect the proper functioning of the WTO dispute settlement sys tem. It urged Members to exercise 
their flexibility and ensure that the Appellate Body selection process would be launched as soon as 
possible. On the other hand, Hong Kong, China was open to discussions with all Members on any 
proposals to address systemi c concerns and further improve the operation of the WTO separately.  
7.23.   The representative of Guatemala  said that his country thanked Mexico for its statement on 
behalf of the co -sponsors of the proposal contained in WT/DSB/W/609. Guatemala also thanked 
Chile for its statement made on behalf of the GRULAC countries. Guatemala reiterated its concern 
about the present situation and its willingness to work constructively to seek a solution that would 
be acceptable to all Members.  
7.24.   The representative of Uruguay  said that her country was a co -sponsor of the proposal 
contained in WT/DSB/W/609. In this regard, Uruguay regretted the lack of consensus to move 
forward with this proposal and reiterated its concern with the lengthy delay in the launching of the 
Appellate Bod y selection process. Uruguay supported the statement made by Chile on behalf of the 
GRULAC countries.  
7.25.   The representative of Japan  said that his country thanked the Chairman for his statement. 
Japan also thanked the proponents for their proposal regarding t he Appellate Body selection 
processes. Japan could support this proposal. It was extremely unfortunate that the DSB was not 
in a position to launch the selection processes at the present meeting. This was so especially 
because appointing a member of the Ap pellate Body was an important function entrusted to the 
DSB under the DSU. Japan turned to the so -called "Rule  15 issue" that had been raised by the 
United  States. This issue involved the institutional question as to which WTO body was responsible 
for ensu ring the legal status of a person serving on the Appellate Body during a transition. This 
was an important question, which had to be addressed by the DSB as the sole WTO body 
established to administer the DSU. In considering this question, WTO Members coul d also examine WT/DSB/M/404  
 
- 23 - 
 
how best the transitional rule should operate under the current circumstances facing the dispute 
settlement system. More generally, it was the responsibility of the DSB to ensure the proper 
functioning of the dispute settlement system, inclu ding the Appellate Body in transition, in a 
manner consistent with the DSU. All Members had to exercise flexibility and act in a constructive 
manner so that the DSB could properly discharge its responsibility.  
7.26.   The representative of Nigeria , speaking on beh alf of the African Group, said that the DSU 
provided a fair system in which every Member could bring a complaint and obtain a ruling on the 
compatibility of a measure or practice with the WTO agreements. The DSB was intended to provide 
every Member equal o pportunity before the law, thereby leading to fairer and more equitable 
opportunities in the system, where Members might influence the results. In this context Nigeria 
was concerned with the impasse in the Appellate Body selection processes. Nigeria was aw are of 
the efforts by the DSB Chairman, the initiatives of Members and the consultations that had been 
ongoing in order to resolve this dispute. Nigeria therefore asked the Chairman to continue with his 
efforts to resolve the matter and expressed its willi ngness to engage in a constructive manner 
towards resolving this issue.  
7.27.   The representative of Honduras  said that her country supported the statement made by 
Mexico on behalf of the co -sponsors and by Chile on behalf of the GRULAC countries. Honduras 
thanke d the Chairman for his efforts in trying to resolve this matter. It regretted and was deeply 
concerned about the lengthy delays in launching the selection process. The dispute settlement 
mechanism was one of the most important aspects of the WTO and Hondur as was an active user 
of the system and had systemic concerns. The situation represented a serious stalemate in the 
work of the DSB and the dispute settlement mechanism generally. The selection process was of 
great importance and the impasse was compromisi ng the entire multilateral trading system. In this 
regard, Honduras urged Members to exercise flexibility and will to try to find a way out of the 
impasse as quickly as possible. This was in the interest of all Members.  
7.28.   The representative of Costa  Rica said that his country thanked the Chairman for his update 
on the consultations. Costa Rica also thanked all of those Members that had, once again, 
expressed their concern with the current situation. Costa Rica especially thanked Chile for the 
statement it had  made on behalf of the GRULAC countries and Mexico for the statement made on 
behalf of the co -sponsors of document WT/DSB/W/609. Costa Rica was also a co -sponsor of 
WT/DSB/W/609. As Mexico had stated in the joint statement, it was the responsibility of all  
Members to ensure the appropriate functioning of the Appellate Body. Article  17.2 of the DSU 
stated that vacancies had to be filled as they arose. As it had already stated in the past, Costa  Rica 
was ready to find a solution to this impasse with the Unite d States and to hear any other proposals 
which could help the DSB to improve its functioning. This should not in any way delay the launch 
of the selection process to fill the vacant posts on the Appellate Body. The selection process should 
be started as so on as possible and without delay as was set out in the draft decision co -sponsored 
by more than 50  Members.  
7.29.   The representative of Turkey  said that, being a co -sponsor of the proposal contained in 
document WT/DSB/W/609, his country associated itself with th e statement made by Mexico on 
behalf of the proponents. Turkey referred to its statements delivered at the DSB meetings on 
29 September  2017 and 23  October  2017 and reiterated its belief that the concerns raised about 
the Working Procedures for Appellate R eview should be dealt with separately, and should not block 
the immediate start of the selection process for the three positions on the Appellate Body. Turkey 
saw that the more the launch of the selection process was delayed, the more the systemic and 
workload concerns about the Appellate Body and the overall system increased. Therefore, the 
Membership should launch the selection process immediately, without further delay.  
7.30.   The representative of the European  Union  said that his delegation had noted the conce rns 
expressed by the United States. The EU understood that, in fact, the "United States would 
welcome Mr. Ramírez’s continued service on the appeals to which he was assigned prior to 
June 30". The EU agreed on this latter point, and it too welcomed the con tinued service of 
Mr. Ramírez. Aside from ensuring a proper transition, the continued service of Mr. Ramírez on all 
appeals assigned to him prior to 30  June 2017 was especially important in the current 
circumstances where the Appellate Body was incomplete and where it was clear that the next 
appointments would not take effect for at least some time. The same considerations applied with 
respect of Mr. Van den Bossche. With regard to the systemic concerns relating to Rule  15 of the 
Working Procedures for Appe llate Review, the EU noted that Rule  15 had been in the Working WT/DSB/M/404  
 
- 24 - 
 
Procedures since 1996 and had since then been applied systematically by the Appellate Body in 
many appeals, without this being contested. The EU believed that Rule  15 was legitimate – it 
contributed to a smooth transition and to a prompt resolution of disputes. In fact, similar rules 
existed in other international jurisdictions. Moreover, the EU saw no link between the issue of 
Rule 15 and the issue of appointments. The discussion on Rule  15 co uld very well take place 
without delaying the decision on appointments any further. The EU saw no rationale in blocking 
the launch of the mere selection process. It took note of the position that had been repeatedly 
taken by the United States, that, in its  view: "Members need to discuss and resolve that issue first 
before moving on to the issue of replacing such a person". Given the urgency and gravity of the 
matter, and the responsibility to ensure the proper operation of the dispute settlement system, the  
EU was ready to engage in such discussions, with a view to unblocking the issue of appointments. 
In these discussions, the EU would be guided, as always, by the concern to preserve the 
independence of the Appellate Body that was central to the proper func tioning of the multilateral 
rules based system. But it also believed that – if the concerns on Rule  15 were guided by a 
legitimate desire to improve the proper administration of transition and if WTO Members engaged 
in such discussions in good faith – an appropriate solution could be reached. Finally, while WTO 
Members were working on a solution with a view to unblocking the appointments, the EU wished to 
once again express its thanks to the Appellate Body and its staff for their continued work in this 
difficult context. It wanted to send a strong message that the Appellate Body should continue its 
important work and operate unaffected by discussions amongst Members on Rule  15 of the 
Working Procedures for Appellate Review.  
7.31.   The representative of Mexico , spea king on behalf of the 52  co-sponsors of the proposal, said 
that his country regretted that, for the seventh time, the Members had not achieved consensus to 
start the selection processes and had not been able to fulfil their duty as Members of the WTO. As 
had been reiterated, Article  17.2 of the DSU contained an obligation for all Members stating that 
"[v]acancies shall be filled as they arise ". It was therefore the duty of Members to fill all the 
vacancies on the Appellate Body. In fact, this should have al ready been done as a routine action 
by the DSB. The Appellate Body should continue to operate fully and be in a position to comply 
with its obligations under the WTO Agreements. By failing to act at the present meeting, the DSB 
would maintain the current s ituation, which was seriously affecting the work of the Appellate Body, 
to the detriment of the WTO and against the best interest s of its Members.  
7.32.   The Chairman  regretted that the DSB was not able to agree , at the present meeting,  on a 
way forward regarding these matters. On his part, he would continue to consult further with 
Members and, at the same time, he called upon delegations to have more conversations and 
discussions on the Appellate Body matters among themselves. He was fu lly aware that, without 
political will, Members would not be able to achieve any solution to these matters. He believed, 
however, that conversations among Members at different levels would help build the necessary 
confidence and would enable delegations to  come up with concrete ideas in order to address these 
matters. In this regard, and as he had mentioned in his statement at the beginning of this Agenda 
item, the Chairman understood that informal and exploratory technical discussions were taking 
place on voluntary basis. Between the present meeting and the next regular meeting in January, 
he would try to reach out to different delegations to hear their views and ideas on the Appellate 
Body matters. He also invited delegations to share their thoughts with h im in order to see how 
they wished to approach these issues. Based on those contacts with delegations, he would report 
back to the DSB at its regular meeting to be held on 22  January  2018.  
7.33.   The DSB took note  of the statements.  
8  DISPUTE SETTLEMENT W ORKLOAD  
A  Statement by the Chairman  
8.1.  The Chairman , speaking under "Other Business ", said that, as he had announced at the 
beginning of the meeting, he would now like to make a report to provide the DSB with information 
about the number of disputes before panels and at the panel composition stage, the Appellate 
Body's workload and the ability of the Secretariat to meet expected demand over the coming 
period. This information reflected the status of disputes up until this DSB meeting on 
22 November  2017. Other developm ents in the course of this meeting would be reflected in the 
information posted on the Members' website. Currently, there were 16 active panels (including 
four panels under Article  21.5 of the DSU) that had not yet issued a final report to the parties. WT/DSB/M/404  
 
- 25 - 
 
Multiple disputes being considered simultaneously by the same panel were being counted as one. 
As of the present meeting, all composed panels had been assigned staff to assist them and were 
active or in the process of commencing proceedings. There were a furt her four panels at the 
composition stage. This did not count panels for which there had been no composition activity in 
the last twelve months. In addition, five final panel reports that had been issued to the parties 
were currently being translated.  The A ppellate Body was currently dealing with six appeals, 
including the extremely complex compliance proceedings in "EC and Certain Member States – 
Large Civil Aircraft (Airbus)" and in "US – Large Civil Aircraft (Boeing)". All submissions had been 
filed by th e participants and third participants in all six of these appeals. Divisions hearing these 
appeals had been composed and had started their work. However, two of these appeals could not 
yet be fully staffed at this point. Up to three additional appeals coul d be filed by the end of the 
year. Finally, two matters had been referred to arbitration under Article  22.6 of the DSU and one 
had been referred to arbitration under Article 21.3(c) of the DSU.  
8.2.  The DSB took note  of the statement.  
__________