RESTRICTED  
  
WT/DSB/M/384  
 
18 October 2016  
(16-5636) Page: 1/12 
Dispute Settlement Body  
5 September 2016    
 
 MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 5 SEPTEMBER 2016  
Chairman: Mr. Xavier  Carim  (South Africa ) 
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  ................................ ................................ ................................ .....................  2 
C.  European  Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European  Union ................................ ................................ ....... 3 
2   UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  
OF 2000: IMPLEMENTATION  OF THE RECOMMENDATIO NS ADOPTED BY THE  DSB ...........  3 
A.  Statements by the European  Union and Japan  ................................ ................................ ... 3 
3   CHINA – CERTAIN MEASURES AFF ECTING ELECTRONIC PA YMENT SERVICES  .............  4 
A.  Statement by the United  States  ................................ ................................ .......................  4 
4   UNITED STATES - COUNTERVAILING MEASU RES ON CERTAIN HOT -ROLLED 
CARBON STEEL FLAT PR ODUCTS FROM INDIA  ................................ ................................ . 5 
A.  Statement by India  ................................ ................................ ................................ ........  5 
5   INDIA – MEASURES CONCERNING THE IMPORTATION OF C ERTAIN 
AGRICULTURAL PRODUCT S ................................ ................................ ..............................  6 
A.  Statement by the United  States  ................................ ................................ .......................  6 
6   COLOMBIA – MEASURES CONCERNING IMPORTED SPIRITS  ................................ ........  9 
A.  Request for the establishment of a panel by the European Union ................................ ..........  9 
7   PROPOSED NOMINATIONS  FOR THE INDICATIVE L IST OF GOVERNMENTAL 
AND NON -GOVERNMENTAL PANELIS TS ................................ ................................ ..........  10 
8   APPELLATE BODY MATTE RS ................................ ................................ ......................  10 
9   "CHINA – MEASURES IMPOSING AN TI-DUMPING DUTIES ON HI GH-
PERFORMANCE STAINLES S STEEL SEAMLESS TUB ES ('HP -SSST') FROM JAPAN"  / 
"CHINA – MEASURES IMPOSING AN TI-DUMPING DUTIES ON HI GH-
PERFORMANCE STAINLES S STEEL SEAMLESS TUB ES ('HP -SSST') FROM THE 
EUROPEAN  UNION"  ................................ ................................ ................................ ........  10 
A.  Statement by China  ................................ ................................ ................................ .......10 WT/DSB/M/384  
 
- 2 - 
 
  10   DISPUTE SETTLEMENT W ORKLOAD  ................................ ................................ .........  11 
A. Statement by the Chairman  ................................ ................................ ............................. 11 
 
 
1  SURVEILLANCE OF IMPL EMENTATION OF RECOMM ENDATIONS A DOPTED 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.163)  
 
B.  United  States – Section  110(5) of the US Copyright Act: Status report by the United  States 
(WT/DS160/24/Add.138)  
 
C.  European  Communities – Measures affecting the approval and marketing of biotech products: 
Status report by the European  Union (WT/DS291/37/Add.101)  
 
 
1.1.  The Chairman  noted that there were three 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 Ag enda of the DSB meeting after six  months 
following the date of establishment of the reasonable period of time and shall remain on the DSB's 
Agenda until the issue is resolved". Under this Agenda item, he invited delegations to provide 
up-to-date informatio n 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 at each meeting on any issue that has already 
been fully debated in the past and on which there appears to have been no change in Members' 
positions already on record". He turned to the first statu s report under this Agenda item.  
A.  United  States – Anti–dumping measures on certain hot–rolled steel products from 
Japan: Status report by the United  States (WT/DS184/15/Add.163)  
1.2.  The Chairman  drew attention to document WT/DS184/15/Add.163, which containe d the 
status report by the United  States on progress in the implementation of the DSB's 
recommendations in the case concerning US  Anti-dumping measures on certain hot -rolled steel 
products from Japan.  
1.3.  The representative of the United  States  said that his c ountry had provided a status report in 
this dispute on 22  August  2016, in accordance with Article  21.6 of the DSU. The United  States had 
addressed the DSB's recommendations and rulings with respect to the calculation of anti -dumping 
margins in the hot -rolled steel anti -dumping duty investigation at issue. With respect to the 
recommendations and rulings of the DSB that had yet to be addressed, the US Administration 
would work with the US  Congress with respect to appropriate statutory measures that would 
resolve this matter.  
1.4.  The representative of Japan  said that her country thanked the United  States for its statement 
and its status report submitted on 22  August  2016. Japan referred to its previous statements that 
this matter should be resolved as soon as possi ble. 
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.138)  
1.6.  The Chairman  drew attention to do cument WT/DS160/24/Add.138, which contained the 
status report by the United  States on progress in the implementation of the DSB's 
recommendations in the case concerning Section  110(5) of the US Copyright Act.  WT/DSB/M/384  
 
- 3 - 
 
  1.7.  The representative of the United  States  said th at his country had provided a status report in 
this dispute on 22  August  2016, in accordance with Article  21.6 of the DSU. The US Administration 
would continue to confer with the European  Union, and to work closely with the US Congress, in 
order to reach a  mutually satisfactory resolution of this matter.  
1.8.  The representative of the European  Union  said that the EU thanked the United  States for its 
status report and its statement made at the present meeting. The EU referred to its statements 
made under this Age nda item at previous DSB meetings. The EU wished to resolve this dispute as 
soon as possible.  
1.9.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
C.  European  Communities – Measures affecting the approval an d marketing of biotech 
products: Status report by the European  Union (WT/DS291/37/Add.101)  
1.10.   The Chairman  drew attention to document WT/DS291/37/Add.101, which contained the 
status report by the European  Union on progress in the implementation of the DSB's 
recommendations in the case concerning measures affecting the approval and marketing of 
biotech products.  
1.11.   The representative of the European  Union  said that the approval process had been finalized 
for the three GM soybeans for food and feed use on 22  July 2016 when the European Commission 
had adopted and published the decisions to authorise these three new GMOs. Two GMOs had been 
voted on with a no opinion result in the Standing Committee on 8  July 2016 and would be voted at 
the Appeal Committee on 15  Septem ber 2016. In accordance with the applicable regulations, the 
authorizing decisions would be submitted to the Appeal Committee for a vote. More generally, and 
as stated many times before, the EU recalled that the EU approval system was not covered by the 
DSB's recommendations and rulings.  
1.12.   The representative of the United  States  said that his country thanked the EU for its status 
report and its statement made at the present meeting. As the United  States had noted repeatedly 
at past meetings of the DSB, EU mea sures affecting the approval and marketing of biotech 
products remained of substantial concern to the United  States. The EU measures were 
characterized by lengthy, unpredictable, and unexplained delays in approvals, even after the EU's 
scientific body had completed exhaustive and time -consuming safety reviews. The United  States 
took note  that the EU had finally approved the specific varieties of biotech soybeans that the 
United  States had discussed at the last several DSB meetings. To be sure, this was a we lcome 
development. At the same time, however, the unwarranted delays between the mid -2015 scientific 
assessments and the final EU approvals illustrated the ongoing problems with the EU measures. 
Indeed, those delays had already caused adverse effects on tr ade in soybeans. The United  States 
urged the EU to ensure that its biotech approval measures were consistent with its obligations 
under the SPS  Agreement.  
1.13.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
2  UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  OF 2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE  DSB 
A.  Statements by the European  Union and Japan  
2.1.  The Chairman  said that this item was on the Agenda of the present meeting at the reque st of 
the European  Union and Japan, and he invited the respective representatives to speak.  
2.2.  The representative of the European  Union  said that the EU, once again, requested the 
United  States to stop transferring anti -dumping and countervailing duties to th e US industry. Every 
disbursement that still took place was clearly an act of non -compliance with the DSB's 
recommendations and rulings. The EU renewed its call on the United  States to abide by its clear 
obligation under Article  21.6 of the DSU and to subm it status reports in this dispute.  WT/DSB/M/384  
 
- 4 - 
 
  2.3.  The representative of Japan  said that, since the distributions under the CDSOA had 
continued, Japan, once again, urged the United  States to stop the illegal distributions in order to 
resolve this long -standing dispute. As  it had stated at previous DSB meetings, Japan was of the 
view that the United  States was under an obligation, in accordance with Article  21.6 of the DSU, to 
provide the DSB with a status report in this dispute. As had been mentioned in the 22  August  2016 
communication to the DSB (WT/DS217/70), Japan continued its non -application of suspension of 
concessions or other obligations, in the form of the imposition of additional import duties. This was 
so because Japan's level of authorization, established throug h arbitration under Article  22.6 of the 
DSU, continued to be marginal. However, as Japan acknowledged the considerable amount 
remained undisbursed and the United  States might execute another round of disbursements to its 
domestic companies under the CDSOA.  Japan therefore retained its rights under Article  22.7 of the 
DSU. Further, Japan's decision not to suspend concessions and related obligations did not mean 
that Japan accepted the US contention that its measure, having been found to be inconsistent with 
the covered agreements, was removed within the meaning of Article  22.8 of the DSU.  
2.4.  The representative of Canada  said that his country thanked the EU and Japan for keeping this 
item on the DSB's Agenda. Canada agreed with the EU and Japan that the Byrd Amen dment 
remained subject to the DSB's surveillance until the United  States ceased to administer it.  
2.5.  The representative of Brazil  said that her country, as one of the parties to this dispute, 
thanked the EU and Japan for keeping this item on the DSB's Agenda.  Brazil wished to refer to its 
previous statements made under this Agenda item regarding the continuation of illegal 
disbursements. Brazil renewed its call on the United  States to fully comply with the DSB's 
recommendations and rulings in this dispute and to submit status reports. The United  States was 
under an obligation to submit status reports until such time that full compliance was achieved.  
2.6.  The representative of India said that his country shared the concerns of the EU and Japan 
regarding the Byrd  Amendment. The WTO -inconsistent disbursements continued to the US 
domestic industry. In India's view, this item should continue to remain on the DSB's Agenda until 
such time that full compliance was achieved in this dispute.  
2.7.  The representative of China  said t hat her country thanked the EU and Japan for placing this 
item on the Agenda of the present meeting. China urged the United  States to fully comply with the 
DSB's rulings in this dispute.  
2.8.  The representative of the United  States  said that, as his country had  noted at previous DSB 
meetings, the Deficit Reduction Act, which included a provision repealing the Continued Dumping 
and Subsidy Offset Act of 2000, had been enacted into law in February  2006. Accordingly, the 
United  States had taken all actions necessar y to implement the DSB's recommendations and 
rulings in these disputes. The United  States recalled, furthermore, that the EU, Japan, and other 
Members had acknowledged that the Deficit Reduction Act did not permit the distribution of duties 
collected on go ods entered after 1  October  2007, nearly nine years ago. The United States 
therefore did not understand the purpose for which the EU and Japan had inscribed this item on 
the Agenda of the present meeting. With respect to comments regarding further status r eports in 
this matter, as it had already explained at previous DSB meetings, the United  States failed to see 
what purpose would be served by further submission of status reports which would repeat, again, 
that the United  States had taken all actions necess ary to implement the DSB's recommendations 
and rulings in these disputes. Indeed, as these very WTO Members had demonstrated repeatedly 
when they had been a responding party in a dispute, there was no obligation under the DSU to 
provide further status repo rts once a Member announced that it had implemented those DSB 
recommendations and rulings, regardless of whether the complaining party disagreed about 
compliance.  
2.9.  The DSB took note  of the statements.  
3  CHINA – CERTAIN MEASURES AFF ECTING ELECTRONIC PA YMENT SE RVICES  
A.  Statement by the United  States  
3.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the United  States and he invited the representative of the United  States to speak.  WT/DSB/M/384  
 
- 5 - 
 
  3.2.  The representative of the United  States  recalled  that the DSB had adopted its 
recommendations and rulings in this dispute in August  2012, and the reasonable period of time 
had expired in July  2013. As the United  States had noted at the previous DSB meeting, China had 
finally issued a regulation  that appeared to set out a licensing application process for electronic 
payment service (EPS) suppliers to obtain authorization to do business in China. The United  States 
expected that with these regulations, China would allow for the approval of foreign EPS suppliers 
without further delay s, in accordance with China's WTO obligations. At that time, however, it 
remained unclear whether China would in fact allow foreign EPS pr oviders to operate in China. 
In the meantime, more than three years after the expir y of the reasonable period of time in this 
dispute, China's domestic supplier remained the only entity authorized to provide electronic 
payment services in China.  
3.3.  The representative of China  said that his country regretted that the United  States had, once 
again, brought this matter before the DSB. China wished to refer to its statements made under 
this Agenda item at previous DSB meetings and emphasized that it had taken all necessary actions 
and had fully implemented the DSB's recommendations and rulings i n this dispute. China was 
pleased that the United  States had referred to the issuance of the regulation. China reiterated that 
the regulation mentioned by the United  States was not relevant for the implementation of the 
DSB's recommendations and rulings in  this dispute. Nor was the DSB meeting an appropriate 
forum to discuss China's domestic regulatory action which was irrelevant to this specific dispute.  
3.4.  The DSB took note  of the statements.  
4  UNITED STATES - COUNTERVAILING MEASU RES ON CERTAIN HOT -ROLLED CARB ON 
STEEL FLAT PRODUCTS FROM INDIA  
A.  Statement by India  
4.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
India and he invited the representative of India to speak.  
4.2.  The representative of India said that, as his co untry had pointed out at the 21  July 2016 DSB 
meeting, the United  States had not filed a status report in this dispute in accordance with its 
binding obligation under Article  21.6 of the DSU. In disregard of the DSB's recommendations, the 
United  States had  made no efforts to repeal or amend section 1677(7)(G)(iii) of its domestic law 
so as to bring it into conformity with Article  15.1, 15.2, 15.3 and 15.5 of the SCM Agreement. 
This was not a minor procedural issue but a serious systemic issue for the disput e settlement 
mechanism. Ignoring this aspect would render Article  21.6 of the DSU ineffective and would 
seriously undermine the surveillance mechanism under the DSU. On the "as applied" claims on the 
CVD determinations, India would consider and pursue appr opriate legal remedies in this respect 
based on the sequencing agreement signed by India and the United States. India urged the 
United  States to accord more serious consideration for implementing the DSB's recommendations 
through a status report, on the is sue of inconsistency of its law. As regards the inconsistent US 
law, the United  States had clarified in previous DSB meetings  that the provisions of the 
WTO-inconsistent domestic law had never been utilized in any investigation. In India's view, the 
issue of non -utilization of a provision of a law was irrelevant in the context of implementation of 
the DSB's rulings and recommendations and did not detract from the finding that the provisions of 
the law had been found to be inconsistent. India noted that, in relation to sub -items 1(a) and 1(b) 
on the Agenda of the present meeting, the United  States had submitted status reports which 
pertained to working on statutory amendments to domestic laws that had been found to be 
inconsistent with its WTO obligations and  was yet to be modified or repealed. India noted with 
disappointment that different legal standards were being pursued in different disputes , which 
pertained to essentially the same issue – legislation which was WTO -inconsistent. India urged the 
United  States to fully comply with the DSB's rulings and recommendations in this dispute and to 
submit status reports as it did in other similar disputes.  
4.3.  Another aspect that was relevant to discuss was the issue of sequencing. It was evident that 
India and the Unit ed States differed on the issue of compliance, at least with respect to the "as 
applied" determinations. In India's view, this needed to be resolved bilaterally, between the 
parties, or through a compliance panel under Article  21.5 of the DSU. India had no t pursued 
recourse under Article  22 for suspension of concessions. India believed that not doing so was the WT/DSB/M/384  
 
- 6 - 
 
  legal, logical and consistent step that ensured predictability of the dispute settlement system. 
India hoped that the United  States would also contr ibute to this consistent practice in other 
disputes as well.  
4.4.  The representative of the United  States  said that, as his country had explained at prior DSB 
meetings, the United  States had completed implementation with respect to the DSB's 
recommendations and  rulings in this dispute. As it had also previously remarked, the United  States 
remained willing to discuss with India any questions India may have. India,  however, had not 
contacted the United  States to do so. As the United  States had consistently explain ed to the DSB, 
and again under Agenda item 2 of the present meeting, there was no obligation under the DSU to 
provide further status reports once a Member announced that it had implemented those DSB 
recommendations and rulings regardless of whether the com plaining party disagreed about 
compliance. India appeared to disagree. On the other hand, India had inscribed the DS436 
dispute, in which the United  States was the responding party, but not the DS430 dispute, in which 
India was the responding party, on the  Agenda of the present meeting. It appeared to the 
United  States, therefore, that India may have made an error in the DS number in its Agenda 
request. To assist India in acting according to its principled view on status reports, the 
United  States had inscr ibed the DS430 dispute on the Agenda. The United  States looked forward to 
India's report under the next Agenda item. With respect to the "as such" finding on section 
1677(7)(G)(i)(III) of the Tariff Act of 1930, the United  States had explained both to Indi a and to 
the DSB that no further US action was needed. As the United  States had explained before, under 
US law, the US Department of Commerce had discretion with respect to the timing of a 
self-initiated investigation. Commerce had confirmed its commitment  to exercise this discretion in 
a manner that was consistent with the international obligations of the United  States. Therefore, no 
further action was needed and India had no basis for its insistence that US law must be changed in 
order for the United  States to comply with the DSB's recommendations in this dispute. India was 
incorrect that the US claim of compliance was based on the statute never having been applied. 
While it was true that the statutory provision at issue had never been applied, as had just  been 
noted, that was not the reason a change to the statute was unnecessary. Given that the 
United  States had fully complied in this dispute, the United  States was not required to submit 
further status reports in this matter.  
4.5.  The DSB took note  of the stat ements.  
5  INDIA – MEASURES CONCERNING THE IMPORTATION OF C ERTAIN AGRICULTURAL 
PRODUCTS  
A.  Statement by the United  States  
5.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the United  States and he invited the represe ntative of the  United  States to speak.  
5.2.  The representative of the United  States  recalled that this dispute was discussed at two recent 
meetings of the DSB. At the 22  June 2016 DSB meeting, which was held three days after the 
19 June expiration of the reason able period of time for compliance, the United  States had 
explained that India had not adopted any changes to the measure at issue in this dispute. 
Members would also recall that India had objected to the level of suspension requested by the 
United  States,  referring the matter to arbitration. That arbitration was currently in progress. 
Nonetheless, the United  States remained open to working with India on a mutually agreed 
resolution to this dispute. Indeed, in contrast to the situation with respect to the p rior Agenda 
item, the United  States had been reaching out to India in an attempt to resolve US concerns 
through bilateral discussions. At the present meeting, the United  States wished to inform the DSB 
of the latest developments regarding this dispute. In late July  2016, India had adopted a measure 
that revised certain aspects of the measure at issue in this dispute. India had notified this measure 
to the SPS Committee1; but not to the DSB. Unfortunately, the revised measure appeared to retain 
many of the f eatures of India's prior measure that the DSB had found to be inconsistent with 
India's obligations under the SPS Agreement. For example: the revised measure appeared to 
continue to impose import prohibitions on account of avian influenza outbreaks , contra ry to the 
DSB's findings on the OIE Terrestrial Code.2 Given that the revised measure, like the original 
                                                
1 G/SPS/N/IND /150. 
2 "India – Agricultural Products", para. 7.270.  WT/DSB/M/384  
 
- 7 - 
 
  measure, did not appear to be based on a risk assessment, India would appear to have no basis 
for imposing its import restrictions on US agricultural p roducts. The revised measure appeared to 
be more trade restrictive than a measure based on international guidelines, contrary to the DSB's 
findings that international standards meet India's level of protection.3 India also appeared not to 
have taken any st eps to address the DSB's findings that its measure unjustifiably discriminated 
against imports in light of the conditions prevailing within India.4 This list was not exhaustive, but 
was more than sufficient to demonstrate US concerns that India's revised m easure did not address 
the DSB's findings and recommendations in this dispute. Accordingly, the United  States would 
continue to preserve and enforce US rights under the DSU. As noted, however, the United States 
remained in bilateral discussions with India and hoped that India would adopt appropriate 
measures consistent with its WTO obligations.  
5.3.  The representative of India said that, on 19  June 2015, the DSB had adopted its 
recommendations and rulings in the dispute: "India – Measures Concerning the Importat ion of 
Certain Agricultural Products" (DS430). At the following DSB meeting, India had informed the DSB 
of its intention to implement the DSB's recommendations and rulings in this dispute. 
On 8 December  2015, India and the United  States had informed the DS B that they had agreed 
that a reasonable period of time for India to implement the DSB's recommendations and rulings 
would end on 19  June 2016. Indian authorities had been conferring with interested parties since 
the adoption of the DSB's rulings and recom mendations with the intention of fully complying within 
the reasonable period of time. Indian authorities had held extensive internal stakeholder 
consultations in that regard. Based on those consultations and deliberations, India had prepared 
the draft not ification on the proposed measure and ha d notified the same to the SPS C ommittee 
(notification G/SPS/N/IND/143 dated 20  April 2016), allowing the import of poultry and poultry 
products into India from countries, zones or compartments free from avian influe nza, in 
accordance with the relevant international standard, i.e. the OIE Terrestrial Code. The draft 
notification had provided a 60 -day time -period for interested parties to comment on it. Further, 
India had, in its addendum dated 21  June 2016, amended it em 8 of the aforesaid notification to 
appropriately reflect the relevant international standard. India had only received comments on its 
draft notification from the United  States. Those comments were taken into consideration by the 
Government of India when  it had subsequently issued the new notification, S.O. 2337(E) dated 
8 July 2016 ("notification").5 
5.4.  The notification had been issued in exercise of the power conferred by Section  3(1) and 
Section  3A of the Livestock Act, 1898 (9 of 1898). The issuance had been made in supersession of 
the Government of India's earlier notification – the meas ure in the present dispute. 
The notification had also been notified to the DSB on 19  July 2016 and was contained in document 
WT/DS430/18. India had also framed the releva nt guidelines, referred to in the notification, as well 
as the questionnaire for recognizing parts of a country, zone or compartment as being free from 
Avian Influenza.6 With the publication of the new notification superseding the earlier notification, 
India had fully complied with the DSB's rulings and recommendations in this dispute. India had 
also been engaged bilaterally with the United  States to allay its concerns about compliance. 
Successful and meaningful bilateral exchanges had taken place since Jul y. India was disappointed 
that the United  States had, once again, raised this issue at the DSB despite the fact that India was 
engaging in good faith efforts to discuss the issue with the United  States.  
5.5.  One important aspect that India wished to raise at th e present meeting was the practice of 
entering into agreed procedures with respect to the proceedings related to compliance and 
suspension of concessions. On 8  July 2016, the United  States had made a request, pursuant to 
Article  22.2 of the DSU, for author ization from the DSB to su spend concessions under the 
WTO covered agreements. India had objected to this request at the same DSB meeting.7 India had 
sought a suspension of arbitration proceedings in view of the steps taken by India to comply in this 
disput e. To date, the United  States had not agreed to suspend the arbitration under Article  22.6 of 
the DSU pursuant to India's objection to the US request for authorization to suspend concessions 
or other obligations under the covered agreements. In India's opi nion, if there was a disagreement 
between the parties with respect to "the consistency with a covered agreement of measures taken 
                                                
3 "India – Agricultural Products" (AB), para. 5.232.  
4 "India – Agricultural Products", para. 8.1(c)(vi).  
5 Available at http://egazette.nic.in/Wri teReadData/2016/170589.pdf  
6 Available at www.dahd.nic.in  
7 https://www.wto.org/english/news_e/news16_e/dsb_19jul16_e.htm  WT/DSB/M/384  
 
- 8 - 
 
  to comply with the recommendations and rulings" the proper course of action was first to have 
recourse to Article  21.5 of the DSU.8 In fact, this had also been the position of the United  States in 
other disputes. In the recent "US  – Tuna" dispute (DS381), the United  States itself had observed 
that "the DSB cannot grant authorization to suspend concessions in any amount where the 
Member concerned has come into compliance".9 India agreed with that statement. In this dispute, 
India had brought itself into full compliance. However, if the United  States disagreed, the issue of 
compliance had to be decided in accordance with the procedu res of Article  21.5 of the DSU. 
As noted earlier, in the DS436 dispute, India and the United  States had entered into a sequencing 
agreement that essentially sequenced compliance proceedings and the suspension of obligations. 
India had entered into such an agreement with the United  States because of its practical 
effectiveness. This was now a common practice adopted by WTO Members. Technically , India could 
have immediately sought the suspension of concessions as it did not agree that the United  States 
had br ought itself into compliance. However, India had considered that the appropriate approach, 
even in such a scenario, would be to enter into a sequencing agreement.  
5.6.  India noted that Japan, at the DSB meeting on 19  July 2016 had rightly brought out the 
issues  involved in this respect. At that meeting, Japan had stated that these procedural 
arrangements would certainly have implications for the time -frame of dispute settlement 
proceedings; but nonetheless, it had been and would provide a practical way forward b y providing 
legal certainty at this very critical stage in a dispute. And this practical arrangement made sense 
for the following reasons: (i) to review complex issues of compliance through adjudicative process 
and multilateral decision by the DSB; (ii) to  secure the parties' rights to appeal; and (iii) to provide 
a basis for the work of the arbitrator under Article  22.6 of the DSU. India agreed with Japan's 
assessment. The EU had also supported this sequencing in their statement made at the same DSB 
meetin g. The EU had stated that, in cases of disagreement about the existence or consistency with 
WTO rules of compliance measures, concessions or other obligations could be suspended under the 
DSU once there was a multilateral determination on the alleged compl iance action. The EU trusted 
that India and the United States would ensure that the DSU procedures, with regard to compliance 
and suspension of obligations in this dispute, could be conducted efficiently and in the correct 
sequence. India agreed with the E U on its assessment. India, once again urged the United  States 
to enter into a sequencing agreement in this dispute and to suspend the arbitration proceedings so 
as to avoid inefficient and avoidable legal uncertainties. India had brought its measure at is sue 
into conformity and therefore, the US request for suspension of concessions had no legal basis. 
Not adhering to the sequence disrupted the legal certainty of the DSU.  
5.7.  The representative of the European  Union  said that the EU wished to refer to its stat ement 
made at the previous DSB meeting. The EU continued to hope that India and the United  States 
would ensure that the DSU procedures with regard to compliance and suspension of obligations in 
this dispute could be conducted efficiently and in the correct  sequence. The EU would continue to 
follow the developments in this dispute very closely.  
5.8.  The representative of the United  States  said that, under Article  22.6 of the DSU, the negative 
consensus rule applied within 30  days of the end of the period for comp liance. By submitting the 
Article  22.2 request, the United  States had preserved its negative consensus right s. Taking this 
step was neither surprising nor unusual. Similar actions had be en taken in other disputes. 
The United  States noted that as of the end  of the reasonable period of time, and indeed as of the 
time of the US request under Article  22.2 of the DSU, India had not even been claiming that the 
measures that were the subject of the DSB's recommendations and rulings had been withdrawn or 
modified. As it had noted, the United  States remained prepared to engage with the Government of 
India to facilitate its coming into compliance with the DSB's recommendations and rulings in this 
dispute. With regard to India's suggestion that the United  States should  have entered into a 
sequencing agreement, there was nothing in the DSU that required Members to enter into such 
agreements. Members had found it appropriate to do so in many circumstances. But India had 
taken no steps to address the DSB's recommendations as of the time when the United  States had 
taken procedural action to preserve its rights under Article  22 of the DSU. India also suggested 
that the United  States should have initiated a proceeding under Article  21.5 of the DSU. Members 
had often agreed, th rough sequencing agreements or otherwise, to conduct proceedings in such an 
order , but as Members were well aware, this was not required under the DSU.  
                                                
8 Recourse to Article  22.6 by India, WT/DS430/17 dated 19 July 2016.  
9 Recourse to Article  21.5 of the DSU by the United  States, WT/DS381/32, page 3.  WT/DSB/M/384  
 
- 9 - 
 
  5.9.  The representative of India said that his country wished to respond to the statement made by 
the United  States regarding the initiation of Article  22.2 of the DSU. It was true that, initially, India 
had not notified its measure. Subsequently, however, on 8  July 2016, India had notified the 
measure. India thus claimed full compliance. The circumstances now we re changed from the date 
on which the United  States had requested suspension. The issue was not whether India was in 
compliance at that point of time, but what were the developments subsequently. It was in that 
light that India sought the request for conce ssion to be suspended and a proper sequence be 
followed. India would continue to discuss this  matter with the United  States bilaterally.  
5.10.   The representative of Brazil  said that his delegation wished to make a statement with 
regard the procedural matter unde r consideration. He recalled that Members had discussed the 
issue of the proper sequence between Articles  21.5 and 22.6 of the DSU for many years and had 
developed practical arrangements for sequencing agreements. Many Members considered that a 
party could  not proceed to a retaliation request before there was a multilateral determination of 
compliance under Article  21.5 of the DSU. However, now it seemed that Members were entering a 
new phase of uncertainty with regard to the sequencing agreements. In Brazi l's view, it was 
important for Members to monitor any new developments, regarding this matter, which had been 
discussed for many years in the context of the DSU negotiations.  
5.11.   The DSB took note  of the statements.  
6  COLOMBIA – MEASURES CONCERNING IMPORTED SPIR ITS 
A.  Request for the establishment of a panel by the European Union (WT/DS502/6)  
6.1.  The Chairman  drew attention to the communication from the European  Union contained in 
document WT/DS502/6 and he invited the representative of the European  Union to speak.  
6.2.  The representative of the European  Union  said that the EU was requesting the establishment 
of a panel concerning Colombia's discriminatory treatment of imported spirits. This request 
followed the EU efforts to find a solution with Colombia over a long peri od of time and in multiple 
fora, including through a bilateral trade agreement signed in 2012, where this issue had been 
specifically addressed. Consultations had been held in March  2016 in Bogota, however a solution 
had not yet been found. While the EU re cognized Colombia's efforts to bring about reform in the 
spirits regime since the initiation of this dispute, and welcomed the constructive process that 
resulted from those consultations, the EU spirits continued to be discriminated in the Colombian 
market . This was the case despite multiple assurances that the discrimination would be eliminated. 
While remaining supportive of the ongoing legislative process in Colombia, the EU could no longer 
wait and had no choice but to request the establishment of a pane l at the present meeting. 
Notwithstanding, the EU encouraged the Colombian government to continue its good efforts 
towards the long -awaited reform of the spirits regime so that EU spirits were no longer 
discriminated in the Colombian market.  
6.3.  The representa tive of Colombia  said that, with respect to the measures concerning imported 
spirits, his country regretted the EU's request for the establishment of a panel to examine this 
matter. During the consultations, the Colombian Government had addressed the diffe rent 
representations made by the EU. While not accepting that Colombia had acted inconsistently with 
its WTO commitments, Colombia had explained that its Congress was working hard on the 
adoption of new legislation. In particular, Colombia had noted that, on 4 November  2015, the 
Colombian Government had submitted a Bill to its Congress concerning the reform of the spirits 
regime. The Third Committee of the Cámara de Representantes, the lower house in Congress, had 
voted in favour of this initiative in the f irst reading of the Bill on 16  December  2015. Following the 
consultations, work on the legislation continued. On 17  May 2016, on the second reading of the 
Bill, the Plenary of the Cámara de Representantes had voted in favour of the bill, thus referring it 
to the Senate for consideration. On 15  June 2016, the Third Committee of the Senate had 
approved the Bill, in its third reading, and had referred it to the Plenary Session of the Senate for a 
fourth and final reading. Unfortunately, due to the types of min or delays that frequently took place 
in a legislative process, Colombia was unable to complete it before the end of the legislative 
session on 20  June 2016. The delays had not reflected any lack of effort on the part of the 
Colombian Government. Steady pro gress had been and continued to be made. Furthermore, the 
EU had been kept informed of the legislative developments as they had occurred. The Congress WT/DSB/M/384  
 
- 10 - 
 
  had just reconvened its parliamentary activities after the summer recess. Colombia expected that 
the intr oduction of the Bill to the Plenary Session of the Senate and the fourth reading of the Bill 
would take place shortly. After the Bill had been approved in the fourth reading, the final step in 
the process would be the conciliation of the versions of the Bi ll approved by the Cámara de 
Representantes and the Senate. Colombia expected this process to be completed by mid -to-late 
September  2016. In view of these developments, the EU's request for the establishment of the 
panel was premature and did not contribut e to achieving a positiv e solution to the dispute. 
This action by the EU could derail or further delay the process in Congress by undermining the 
political support for the bill. Given how close Colombia was to the end of the process, this risk was, 
in Colo mbia's view, undesirable. Colombia nonetheless stood ready to continue working closely 
with the EU to complete the legislative process. For these reasons, Colombia was not in a position 
to agree to the EU's request for the establishment of a panel at the p resent meeting.  
6.4.  The DSB took note  of the statements and agreed  to revert to this matter.  
7  PROPOSED NOMINATIONS  FOR THE INDICATI VE LIST OF GOVERNMEN TAL AND 
NON-GOVERNMENTAL PANELIS TS (WT/DSB/W/575)  
7.1.  The Chairman  drew attention to document WT/DSB/W/575, which contained two additional 
names proposed by the Republic of Moldova and Switzerland for inclusion on the Indicative List of 
Governmental and Non -Governmental Panelists, in accordance with Article  8.4 of the DSU. 
He proposed that the DSB approve the names co ntained in document WT/DSB/W/575.  
7.2.  The DSB so agreed . 
8  APPELLATE BODY MATTE RS 
8.1.  The Chairman  said that he wished to remind delegations that as agreed by the DSB at its 
meeting on 21  July 2016, the deadline for nominations of candidates to fill the vacancy left  by the 
non-reappointment of one Appellate Body member was Wednesday, 14  September  2016 by 6  pm. 
He noted that no new nominations had been submitted thus far. He also wished to remind 
delegations that, as agreed at the previous DSB meeting, should any of t he candidates nominated 
for the 2016 process which had been initiated in January  2016 wish to participate in the new 
selection process, the Member who had nominated that candidate should inform the Selection 
Committee of the candidate's intentions to parti cipate in the new selection process. This should be 
done by sending a letter to him as the Chair of the DSB in care of the Council and TNC Division 
with the request that this information be forwarded to the members of the Selection Committee. 
Such letters would then be circulated to all delegations as addend a to the original Job document s 
containing the CV of a candidate submitted for the previous process. He further wished to remind 
delegations that, starting on 26  September  2016, he would convene the firs t Dedicated S ession for 
a focused discussion by Members on any issue that had been raised in respect of Appellate Body 
reappointments, including whether to modify the rules governing reappointments. He reca lled that 
the purpose of these Dedicated S essions was to discuss issues relating to reappointment only, with 
particular attention paid to assuring the independence and impartiality of the Appellate Body, and 
not to discuss any other issues including those raised in the DSU negotiations. In that regard, if  
there was any interest by delegations to share their views on how these Dedicated S essions should 
be conducted, he would make himself available for co nsultations ahead of the first Dedicated 
Session. Delegations should contact the Secretariat as soon as p ossible if they wished to take up 
that offer.  
8.2.  The DSB took note  of the statement.  
9  "CHINA – MEASURES IMPOSING AN TI-DUMPING DUTIES ON HI GH-PERFORMANCE 
STAINLESS STEEL SEAM LESS TUBES ('HP -SSST') FROM JAPAN" /  "CHINA – MEASURES 
IMPOSING ANTI -DUMPING DUTIES ON HIGH -PERFORMANCE STAINLES S STEEL 
SEAMLESS TUBES ('HP -SSST') FROM THE EURO PEAN  UNION"  
A.  Statement by China  
9.1.  The representative of China , speaking under "Other Business", said that, on 
28 October  2015, the DSB had adopted the Appellate Body and Panel Report s in the disputes: WT/DSB/M/384  
 
- 11 - 
 
  "China — Measures Imposing Anti -Dumping Duties on High -Performance Stainless Steel Seamless 
Tubes ('HP -SSST') from Japan" (DS454) and "China — Measures Imposing Anti -Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes  from the European  Union" (DS460). 
On 25 November  2015, China had informed the DSB of its intention to implement the DSB's 
recommendations and rulings in these disputes. On 19  February  2016, China, Japan and the EU 
had informed the DSB that they had agreed that the reasonable period of time for China to 
implement the DSB's recommendations and rulings shall be nine months and 25  days from the 
date of adoption of the Appellate Body and Panel Reports. Accordingly, the reasonable period of 
time had expired on 22  August 2016. In order to implement the DSB's recommendations and 
rulings, the Ministry of Commerce of the People's Republic of China (MOFCOM) had published a 
notice (Notice  (2016) No. 30) and had launched re -investigation into HP -SSST from Japan and 
the EU. On  22 August  2016, MOFCOM had issued a determination of the re -investigation (Notice 
(2016) No. 34) and the anti -dumping duties at issue were terminated. Through these efforts, 
China had fully implemented the DSB's recommendations and rulings in these disput es. 
9.2.  The representative of Japan  said that his country thanked China for its statement regarding 
the announcement made on 22  August  2016 on China's Mini stry of Commerce website. 
Japan  recalled that, on 28  October  2015, the DSB had adopted the recommendation s and rulings 
in this dispute. Subsequently, on 19  February  2016, Japan and China had agreed that the 
reasonable period would expire on 22  August  2016. On that date, China had made an 
announcement on China's Ministry of Commerce web site that China had rev oked its anti -dumping 
duties on HP -SSST from Japan and the EU, as had been reported by China at the present meeting. 
Japan welcomed, and was encouraged by, China's statement that it had taken the necessary 
actions to implement the DSB's recommendations and  rulings by the end of the reasonable period 
of time and that it had revoked the WTO -inconsistent measures in this dispute. Japan noted that 
the announcement of 22  August  2016 had also stated that, under China's municipal law, any 
interested party could se ek revocation of this decision by administrative reconsideration, or 
otherwise, judicial review. Thus, Japan would closely monitor any developments with respect to 
MOFCOM's decision of 22  August  2016. Japan wished to note that Article  21.6 of the DSU provi ded 
that "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 "the Member concerned shall provide the DSB with a status report in writing of its 
progress in the implementation of the recommendations or rulings". As Japan and China had 
agreed on the reasonable period of time on 19  February  2016, the six -month period had expired 
on 19  August  2016. Under those ci rcumstances, Japan believed that China should have submitted 
a status report and made a statement under the main Agenda item . Japan, once again, thanked 
China for its statement made at the present meeting.  
9.3.  The representative of the European  Union  said that  the EU supported the statement made by 
Japan.  
9.4.  The representative of China  said that his country took note of the statements made by Japan 
and the EU. He said it was China's obligation to establish and maintain tribunals and procedures 
for the prompt revie w of the administrative actions relating to the implementation of laws and 
regulations as required under the GATT  1994, including the decision on anti -dumping measures.  
He noted that Japan and the EU had the same obligations. In general, t hese procedures w ere 
irrelevant to the implementation of the DSB's recommendations and  rulings. The Notice (2016) 
No. 34 had taken effect on 22  August  2016 and the anti -dumping duties had been terminated. 
Therefore, China had fully implemented the DSB's recommendations and  rulings in these disputes.  
9.5.  The DSB took note  of the statements.  
10  DISPUTE SETTLEMENT W ORKLOAD  
A. Statement by the Chairman  
10.1.   The Chairman , speaking under "Other Business", said that he wished to provide information 
about the Appellate Body's workload, the num ber of disputes before panels, in the panel queue, 
and at the panel composition stage, and the ability of the Secretariat to meet expected demand 
over the coming period. On appeals, the Appellate Body was currently dealing with three WT/DSB/M/384  
 
- 12 - 
 
  appeals.10 In addition,  two Panel R eports that had been circulated in August11 and another three 
Panel R eports that were expected to be circulated in the next three months may also be 
appealed12, including the report of the Panel in the extremely complex compliance proceedings in 
the "EC and Certain Member States – Large Civil Aircraft" (Airbus) dispute. Given the limited 
number of staff available in the Appellate Body Secretariat, there was soon likely to be a waiting 
period before appeals could be staffed and Appellate Body membe rs could turn to dealing with 
them. On panels/arbitrations, currently, there were 17 active panels (including three panels under 
Article  21.5 of the DSU) that had not yet issued a final report to the parties. He noted that he was 
counting multiple disputes  that were being considered simultaneously by the same panel as one. 
As of the present day, there were four composed panels awaiting staff to assist them13, which had 
been  composed after 31  October  2015 when the Director -General had undertaken to staff all  
panels in the queue at that time. Currently, there were six pane ls at the composition stage. 
In addition, two matters had been referred to arbitration under Article  22.6 of the DSU.  
10.2.   The DSB took note  of the statement.  
__________  
                                                
10 DS456 "India – Solar Cells"; DS464 "US – Washing Machines"; and  DS473 " EU – Biodiesel".  
11 DS475 "Russia – Pigs"; DS485 "Russia – Tariff Treatment".  
12 DS316 "EC  and Certain Member States – Large Civil Aircraft"; DS471 " US – Anti-Dumping 
Methodologies" (China); and DS487 "US – Tax Incentives".  
13 DS480 "EU – Biodiesel" (Indonesia); DS427 " China – Broiler Products" (Article  21.5 – United  States); 
DS504 "Korea – Anti-Dumping Duties on Pneumatic Valves from Japan"; and DS505 "US – Supercalendared 
Paper" (Canada) .