WT/AB/26  
 
3 June 2016  
(16-2981)  Page: 1/167  
   
 
  
 
 
  
 
   
 
  
 
  
 
   
 
APPELLATE BODY 
  
ANNUAL REPORT FOR 2015 
 
 
  
 
MARCH 2016 WT/AB/26 
 
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The Appellate Body welcomes  comments and inquiries  
regarding this Annual Report at the  
following address: 
 
Appellate Body Secretariat 
World Trade Organization 
rue de Lausanne 154 
1211 Geneva, Switzerland 
e-mail: appellatebody.registry@wto.org 
<https://www.wto.org/english/tratop _e/dispu_e/appella te_body_e.htm > WT/AB/26 
 
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  CONTENTS 
FOREWORD ......................................................................................................................  6 
1   INTROD UCTION  .......................................................................................................... 8  
2   COMPOSITION OF TH E APPELLATE BODY .................................................................. 11  
3   APPEAL S ...................................................................................................................  12 
4   APPELLATE BODY REPORTS ....................................................................................... 15  
4.1 Argentina – Measures Affecting the Importation of Goods  ......................................... 17 
4.2 United States – Certain Country of Origin Labelling (COOL) Requirements – 
Recourse to Article 21.5 of the DSU by Canada and Mexico  ....................................... 27 
4.3 United States – Anti-Dumping Measures  on Certain Shrimp from Viet Nam  .................. 41 
4.4 India – Measures Concerning the Importation of Certain Agricultural Products  ............. 44 
4.5 Peru – Additional Duty on Imports of Certain Agricultural Products  ............................. 58 
4.6 China – Measures Imposing Anti-Dumping Duties on High-Performance Stainless 
Steel Seamless Tubes ("HP-SSST") from Japan  and China – Measures Imposing 
Anti-Dumping Duties on High-Performance Stainless Steel Seamless Tubes 
("HP-SSST") from the European Union  ................................................................... 72 
4.7 United States – Measures Concerning the Importation, Marketing and Sale of 
Tuna and Tuna Products - Recourse to Article 21.5 of the DSU by Mexico  .................... 83 
5   PARTICIPANTS AND THIRD PARTICIPANTS IN  APPEALS ........................................ 100  
6   WORKING PROCEDURES FOR APPELLATE REVIEW. ................................................. 102  
7   ARBITRATIONS UNDER ARTI CLE 21.3(C) OF  THE DSU ............................................ 106  
8   OTHER AC TIVITIES ................................................................................................. 114  
Annex 1 Executive Summaries of Written Su bmissions in Appellate Proceedings ................... 116 
Annex 2 Limits on the Length of Written Submissions ....................................................... 118 
Annex 3 Speech to the Dispute Settlement Body on 28 October 2015 by  
 Roberto Azevêdo, Director-G eneral of th e WTO  .................................................. 124 
Annex 4 Members of the Appellate Bo dy 2015 – Biographic al notes .................................... 128 
Annex 5 Former Appellate Body Members and Chai rpersons .............................................. 132 
Annex 6 Appeals file d: 1995–2015  ................................................................................ 134 
Annex 7 Percentage of panel reports appe aled by year of ad option: 1995– 2015 ................... 135 
Annex 8 WTO agreements addressed in Appellat e Body reports circulated through 2015 ....... 136 
Annex 9 Participants and third participants in appeals: 1995–2015 ..................................... 137 WT/AB/26 
 
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  WTO ABBREVIATIONS USED IN  THIS ANNUAL REPORT 
Abbreviation Description 
2013 Final Rule USDOC, National Oceanic and Atmospheric Administration (NOAA), 
Enhanced Document Requirements to Support Use of the 
Dolphin Safe Label on Tuna Products, United States Federal 
Register , Vol. 78, No. 131 (9 July 2013), pp. 40997-41004 
ACP African Caribbean Pacific Group 
ADB Asian Development Bank 
AI avian influenza 
AIDCP Agreement on the International Dolphin Conservation Program 
(Original Panel Exhibits US-23a and MEX-11; Panel Exhibit MEX-30) 
ALOP appropriate level of protection 
amended tuna measure The United States' dolphin-safe labelling regime for tuna products, 
comprising: (i) the DPCIA; (ii) Subpart H of Part 216 of CFR Title 50 
as amended by the 2013 Final Rule (implementing regulations); (iii) the Hogarth ruling; and (iv) any implementing guidance, 
directives, policy announcements, or any other document issued in 
relation to instruments (i) through (iii), including any modifications or amendments in relation to those instruments 
Anti-Dumping Agreement Agreement on Implementation of Article VI of the General 
Agreement on Tariffs and Trade 1994  
ATC Agreement on Textiles and Clothing 
BCI business confidential information 
CI import certificate ( Certificados de Importación ) 
CIETAC China's International Trade and Economic Arbitration Commission 
COOL certain country of origin labelling 
COP cost of production 
Customs Valuation 
Agreement Agreement on Implementation of Article VII of the General 
Agreement on Tariffs and Trade 1994 
DJAI Advance Sworn Import Declaration ( Declaración Jurada Anticipada 
de Importación) 
DPCIA Dolphin Protection Consumer Information Act of 1990, codified in 
USC Title 16, Section 1385 
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement 
of Disputes 
EPA Economic Partnership Agreement 
ETP Eastern Tropical Pacific Ocean 
FTA Peru – Guatemala free trade agreement 
GATS General Agreement on Trade in Services  
GATT 1994 General Agreement on Tariffs and Trade 1994 
Hogarth ruling United States Court of Appeals for the Ninth Circuit, Earth Island 
Institute et al. v. William T. Hogarth , 494 F.3d 757 (9th Cir. 2007) 
HP-SSST high-performance Stainless Steel Seamless Tubes 
HPAI highly pathogenic avian influenza WT/AB/26 
 
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  Abbreviation Description 
HPNAI highly pathogenic notifiable avian influenza 
ICC International Chamber of Commerce 
ICC International Criminal Court 
ICTY International Criminal Tribunal for the Former Yugoslavia 
IDCP International Dolphin Conservation Program 
IDLO International Development Law Organization 
ILC International Law Commission 
Import Licensing Agreement Agreement on Import Licensing Procedures 
Livestock Act Live-Stock Importation Act, as amended 
LPAI low pathogenicity avian influenza 
LPNAI low pathogenicity notifiable avian influenza 
MOFCOM Ministry of Commerce of the People's Republic of China 
NEPAD New Partnership for Africa's Development 
NME non-market economy 
NMFS National Marine Fisheries Service 
OCTG Oil Country Tubular Goods 
OIE World Organization for Animal Health 
PRS Price Range System ( Sistema de Franja de Precios ) 
Rules of Conduct Rules of Conduct for the Understanding on Rules and Procedures 
Governing the Settlement of Disputes, adopted by the DSB 
on 3 December 1996, WT/DSB/RC/1 
SAA Statement of Administrative Action 
SCM Agreement Agreement on Subsidies and Countervailing Measures 
SG&A administrative, selling and general costs 
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary 
Measures 
TBT Agreement Agreement on Technical Barriers to Trade  
TRIMs Agreement Agreement on Trade-Related Investment Measures  
TRIPS Agreement Agreement on Trade-Related As pects of Intellectual Property Rights  
TTFs Tuna Tracking Forms 
Tubacex Tubos Inoxidables, S.A 
URAA Uruguay Round Agreements Act 
USCIT United States Court of International Trade 
USDOC United States Department of Commerce 
USITC United States International Trade Commission 
USTR United States Trade Representative 
Working Procedures Working Procedures for Appellate Review, WT/AB/WP/6, 
16 August 2010 
WTO World Trade Organization 
WTO Agreement Marrakesh Agreement Establishing the World Trade Organization WT/AB/26 
 
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  FOREWORD 
2015 marked the 20th anniversary of the WTO and its dispute settlement system. At conferences, 
seminars, colloquia and workshops worldwide, bo th the WTO and its dispute settlement system 
were praised and criticized in equal measure. The WTO dispute settlement system has been very 
busy in 2015. Never before were there so many active disputes at the consultation and panel 
stages. Also the Appellate Body’s workload in 2015 was one of the highest ever. The Appellate Body circulated eleven reports concerning seven distinct matters. These reports 
concerned matters relating to the TBT Agreement ( US – COOL (Article 21.5 – Canada and Mexico) 
and US – Tuna II (Mexico) (Article 21.5) ); the Agreement on Import Licensing Procedures 
(Argentina – Importation of Goods ); the Agreement on Agriculture  (Peru – Agricultural Products ); 
the SPS Agreement ( India – Agricultural Products ); and the Anti-Dumping Agreement  
(US – Shrimp II (Viet Nam)  and China – HP-SSST (Japan) / China – HP-SSST (EU) ). 
All Appellate Body reports circulated in 2015 also addressed matters relating to the GATT 1994 and the DSU. Based on the number of cases curre ntly at the panel stage (28) and the average 
appeal rate of 67 per cent, it is expected that the workload of the Appellate Body will increase 
significantly and remain very high in coming years. Also note that among the disputes currently before panels are EC and certain member States – Large Civil Aircraft (Article 21.5) , US – Large 
Civil Aircraft (2nd complaint) (Article 21.5)  and Australia – Plain Packaging, which are likely to 
result in very large appeals that will place a heavy burden on the Appellate Body's limited resources. 
WTO Members rightly expect the Appellate Body to produce reports of the highest quality and in 
the shortest time possible. However, there is of course an inevitable trade-off between, on the one 
hand, the time taken to hear and decide an appe al, and, on the other hand, the quality of the 
Appellate Body's report in a given appeal. We ha ve, over the last few years, undertaken various 
efforts to continue to ensure both the high quality of our reports and the completion of appellate 
proceedings in as short a time as possible. In 2015,  these efforts included the revision of internal 
processes, as well as the adoption, on a trial basis,  of the practice of annexing to Appellate Body 
reports the executive summaries of the arguments submitted by the participants and 
third participants. The Communication of  the Appellate Body of 11 March 2015 on Executive 
Summaries of Written Submissions in Appellate Proceedings  is reproduced in Annex 1 to this 
Annual Report. It has been suggested that adopti ng limits on the length of written submissions 
would also allow for better management of WTO appellate proceedings and contribute to a more 
optimal use of the resources of the Appellate Body and of participants in appellate review proceedings. On 23 October 2015, the Appellate  Body therefore issued a Communication on 
Limits on the Length of Written Submissions , which is reproduced in Annex 2 to this 
Annual Report.  The intention of this Communication was to initiate further reflection and discussion 
among and with WTO Members on issues that may aris e in connection with the setting of limits on 
the length of written submissions. The reflection and discussion on these issues is on-going. 
Finally, throughout 2015, the Appellate Body has also been in regular contact with the Director-General regarding the staffing needs of the Appellate Body Secretariat. We have taken note of, and appreciate, the efforts undertaken and the commitments made by the 
Director-General in this respect. More broadly, however, the challenges facing the Appellate Body, 
and the dispute settlement system in general, ar e of a systemic and structural nature, and can 
only be successfully addressed with the fu ll involvement and support of WTO Members. 
At its meeting on 25 November 2015, the DSB decided to reappoint Mr Ujal Singh Bhatia and 
Mr Thomas Graham for a second four-year term starting on 11 December 2015. The DSB took this decision on the basis of the outcome of the consultations held by its Chair, 
Ambassador Harald Neple. In the context of his consultations Ambassador Neple hosted a meeting 
with Mr Bhatia and Mr Graham to which all WTO Members were invited. Neither the DSU nor the 1995 DSB Decision on the Establishment of th e Appellate Body set out the procedure to be 
followed by the DSB for taking a decision on th e reappointment of Appellate Body Members. The 
modalities of this procedure have been the subjec t of some debate among WTO Members in recent 
years. The procedure followed for the reappointment of Mr Bhatia and Mr Graham ensured the transparency of the reappointment process and prot ected the independence and impartiality of the 
Appellate Body Members seeking reappointment as well as the confidentiality of Appellate Body 
deliberations. The modalities of the procedure followed are set out on page 11 of this Annual Report. WT/AB/26 
 
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  2015 has not only been an anniversary year and a ye ar of much dispute settlement activity. It has 
also been a year of loss and sadness. With great regret and sorrow, we learnt of the passing of 
Florentino Feliciano and John Jackson. Justice Florentino Feliciano, who was one of the original seven Appellate Body Members, passed away in Ma nila on 15 December 2015, at the age of 87. 
Following an illustrious legal career in the Philippines, including as Senior Associate Justice of the 
Supreme Court of the Philippines, Justice Felici ano was appointed in 1995 to serve on the newly 
created Appellate Body. Known to many simply as “Toy”, Justice Feliciano played a key 
institution-building role throughout his six-year tenure as an Appellate Body Member. Justice 
Feliciano is remembered by many for his ability to combine great intellect and wisdom with a beautiful turn of phrase, and for being an incr edibly principled, rigorous, and fierce jurist. 
Professor John H. Jackson, who was professor of law at the University of Michigan Law School from 
1966 to 1998, and subsequently University Profe ssor at the Georgetown University Law Center, 
passed away in Ann Arbor, Michigan on 7 November 2015 at the age of 83.  John Jackson was one of the great intellectual architects of the multilateral trading system and he was a staunch 
defender of a strong WTO dispute settlement sy stem. He considered such a system to be 
indispensable to making WTO rules effective and providing security and predictability to the multilateral trading system. John Jackson was a mentor and a friend to many of us. May the lives 
and work of Justice Feliciano and Professor Jackson continue to inspire and guide our efforts to 
improve further the WTO dispute settlement system.   
Peter Van den Bossche 
Chair, Appellate Body 
 WT/AB/26 
 
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  WORLD TRADE ORGANIZATION 
APPELLATE BODY 
ANNUAL REPORT FOR 2015 
1  INTRODUCTION 
This Annual Report summarizes the activities of the Appellate Body and its Secretariat for the 
year 2015. 
Dispute settlement in the World Trade Organization (WTO) is regulated by the 
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), which is 
contained in Annex 2 of the Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement). Article 3.2 of the DSU states the overarching purposes of the dispute settlement system as such: "The dispute settlemen t system of the WTO is a central element in 
providing security and predictability to the mult ilateral trading system." Further, Article 3.2 
provides that the dispute settlement system "ser ves to preserve the rights and obligations of 
Members under the covered agreements, and to clarif y the existing provisions of those agreements 
in accordance with customary rules of interpretation of public international law." The dispute 
settlement system is administered by the Disput e Settlement Body (DSB), which is composed of 
all WTO Members. 
A WTO Member may have recourse to the rules and procedures established in the DSU if it 
"considers that any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures taken by another Member."
1 The DSU procedures apply to disputes 
arising under any of the covered agreements listed in Appendix 1 to the DSU, which include the 
WTO Agreement and all the multilateral agreements  annexed to it relating to trade in goods2, 
trade in services3, and the protection of intellectual property rights4, as well as the DSU itself. 
Pursuant to Article 1.2 of the DSU, the special or additional rules and procedures listed in 
Appendix 2 of the DSU prevail over those cont ained in the DSU to the extent that there 
is an inconsistency. The application of the DSU to disputes under the plurilateral trade agreements annexed to the WTO Agreement
5 is subject to the adoption of a decision by the parties to each 
of these agreements setting out the terms for its application to the individual agreement.6 
Proceedings under the DSU take place in stages. In the first stage, Members are required to hold 
consultations with a view to reaching a mutually agreed solution to the matter in dispute.7 If these 
consultations fail to produce a mutually agreed solution, the dispute may advance to the 
adjudicative stage in which the complaining Member requests the DSB to establish a panel to 
examine the matter.8 Panelists are chosen by agreement of  the parties, based on nominations 
proposed by the Secretariat.9 However, if the parties cannot agree, either party may request the 
WTO Director-General to determine the composition of the panel.10 Panels shall be composed of 
well-qualified governmental and/or non-governmental individuals with expertise in international trade law or policy.
11 In discharging its adjudicative function, a panel is required to "make an 
objective assessment of the matter before it, including an objective assessment of the facts of the 
case and the applicability of and conformity with  the relevant covered agreements, and make such 
other findings as will assist the DSB in making the recommendations or in giving the rulings 
                                               
1 Article 3.3 of the DSU. 
2 Annex 1A to the WTO Agreement . 
3 Annex 1B to the WTO Agreement . 
4 Annex 1C to the WTO Agreement. 
5 Annex 4 to the WTO Agreement. 
6 Appendix 1 to the DSU. 
7 Article 4 of the DSU. 
8 Article 6 of the DSU. 
9 Article 8.6 of the DSU. 
10 Article 8.7 of the DSU. 
11 Article 8.1 of the DSU. WT/AB/26 
 
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  provided for in the covered agreements."12 The panel process includes written submissions by the 
main parties and also by third parties that have no tified their interest in the dispute to the DSB. 
Panels usually hold two meetings with the parties, one of which also includes a session with third parties. Panels set out their factual and legal findings in an interim report that is subject to 
comments by the parties. The final report is first issued to the parties, and is subsequently 
circulated to all WTO Members in the three o fficial languages of the WTO (English, French, 
and Spanish), at which time it is also posted on the WTO website. 
Article 17 of the DSU establishes a standing Appellate Body. The Appellate Body is composed 
of seven Members who are each appointed to a four -year term, with a possibility to be reappointed 
once. The expiration dates of terms are staggered in order to ensure that not all Members begin and complete their terms at the same time. Me mbers of the Appellate Body must be persons 
of recognized authority, with demonstrated expertise in law, international trade, and the subject 
matter of the covered agreements generally. They  shall be unaffiliated with any government. 
Moreover, the Appellate Body membership shall be  broadly representative of the membership of 
the WTO. Appellate Body Members elect a Chairp erson to serve a one-year term, which can be 
extended for an additional one-year period. The Chairperson is responsible for the overall direction of Appellate Body business. Each appeal is heard by a Division of three Appellate Body Members. 
The process for the selection of Divisions is de signed to ensure randomness, unpredictability, 
and opportunity for all Members to serve, regardless of their national origin. To ensure consistency and coherence in decision-making, Divisions exch ange views with the other four Members of the 
Appellate Body before finalizing Appellate Body reports. The Appellate Body receives legal 
and administrative support from its Secretariat. The conduct of Members of the Appellate Body and 
its staff is regulated by the Rules of Conduct for the Understanding on Rules and Procedures 
Governing the Settlement of Disputes
13 (Rules of Conduct). These Rules emphasize that 
Appellate Body Members shall be independent and im partial, avoid any direct or indirect conflict 
of interest, and maintain the confidentiality of appellate proceedings.14  
Any party to a dispute, other than WTO Members that were third parties at the panel stage, 
may appeal a panel report to the Appellate Body. These third parties may however participate 
and make written and oral submissions in the appellate proceedings. The appeal is limited to issues of law covered in the panel report and legal interpretations developed by the panel. Appellate proceedings are conducted in accordance with the procedures established in the DSU 
and the Working Procedures for Appellate Review
15 (Working Procedures), drawn up by the 
Appellate Body in consultation with the Chai rperson of the DSB and the Director-General 
of the WTO, and communicated to WTO Members.  Proceedings involve the filing of written 
submissions by the participants and third participants, as well as an oral hearing. The 
Appellate Body report is to be circulated within 90 days of the date when the appeal was initiated, 
and is posted on the WTO website immediately upon circulation to Members. In its report, 
the Appellate Body may uphold, modify, or reverse the legal findings and conclusions of a panel.  
Panel and Appellate Body reports must be adop ted by WTO Members acting collectively through 
the DSB. Under the reverse consensus rule, a report is adopted unless the DSB decides by consensus not to adopt the report.
16 Upon adoption, Appellate Body reports and panel reports (as 
modified by the Appellate Body) become binding upon the parties. 
Following the adoption by the DSB of a panel or Appellate Body report that includes a finding 
of inconsistency of a measure of the responding Member with its WTO obligations, Article 21.3 
of the DSU provides that the responding Member should, in principle, comply immediately. 
However, where immediate compliance is "impracticable", the responding Member shall have a "reasonable period of time" to implement the DSB's recommendations and rulings. 
The "reasonable period of time" may be determ ined by the DSB, by agreement between the 
                                               
12 Article 11 of the DSU. 
13 The Rules of Conduct, as adopted by the DSB on  3 December 1996 (WT/DSB/RC/1), are incorporated 
into the Working Procedures for Appellate Review (WT/AB/WP/6), as Annex II thereto. (See WT/DSB/RC/2, WT/AB/WP/W/2) 
14 Former Appellate Body Members, Secretariat st aff and interns are subjec t to Post Employment 
Guidelines, which facilitate compliance with relevant  obligations of conduct following a term of service 
(WT/AB/22). 
15 Working Procedures for Appellate Review, WT/AB/WP/6, 16 August 2010. 
16 Articles 16.4 and 17.14 of the DSU. WT/AB/26 
 
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  parties, or through binding arbitration pursuant to Article 21.3(c) of the DSU. In such arbitration, 
a guideline for the arbitrator is that the reasonable period of time to implement panel or Appellate Body recommendations should not exceed 15 months from the date of adoption of the 
panel or Appellate Body report. However, that time may be shorter or longer, depending upon the 
particular circumstances. Arbitrators have indicated that the reasonable period of time shall be the 
shortest time possible in the implementing Member's legal system.  
Where the parties disagree "as to the existenc e or consistency with a covered agreement 
of measures taken to comply", the matter may be  referred to the original panel in compliance 
proceedings under Article 21.5 of the DSU. In these Article 21.5 compliance proceedings, a panel report is issued and may be appealed to the A ppellate Body. Upon their adoption by the DSB, 
panel and Appellate Body reports in Article 21.5 compliance proceedings become binding on 
the parties. 
If the responding Member does not bring its WTO-inconsistent measure into compliance with its 
obligations under the covered agreements within the reasonable period of time, the complaining 
Member may request negotiations with the resp onding Member with a view to reaching an 
agreement on compensation as a temporary and voluntary alternative to full compliance. Compensation is subject to acceptance by the complaining Member, and must be consistent with 
the WTO agreements. If no satisfactory compensa tion is agreed upon, the complaining Member 
may request authorization from the DSB, pursua nt to Article 22 of the DSU, to suspend the 
application of concessions or other obligations under the WTO agreements to the responding Member. The level of the suspension of concessi ons or other obligations authorized by the DSB 
shall be equivalent to the level of the nullification or impairment resulting from non-compliance 
with the DSB recommendations and rulings. The responding Member may request arbitration under Article 22.6 of the DSU if it objects to the le vel of suspension proposed or considers that the 
principles and procedures concerning the suspension of concessions or other obligations have not 
been followed. In principle, the suspension of co ncessions or other obligations must relate to the 
same trade sector or agreement as the measure fo und to be inconsistent. However, if this is 
impracticable or ineffective for the complaining Member, and if circumstances are serious, the 
complaining Member may seek authorization to suspend concessions with respect to other sectors or agreements. The arbitration under Article 22.6 shal l be carried out by the original panel, if its 
members are available. Compensation and the susp ension of concessions or other obligations are 
temporary measures; neither is to be preferred to full implementation of a recommendation to 
bring a measure into conformity with the covered agreements.
17  
A party to a dispute may request good offices, conciliation, or mediation as alternative methods of 
dispute resolution at any stage of dispute settlement proceedings.18 In addition, under Article 25 
of the DSU, WTO Members may have recourse to arbitration as an alternative to the regular procedures set out in the DSU.
19 Recourse to arbitration, including the procedures to be followed in 
such arbitration proceedings, is subject to mutual agreement of the parties.20 
                                               
17 Article 22.1 of the DSU. 
18 Article 5 of the DSU. 
19 There has been only one recourse to Article 25 of the DSU and it was not in lieu of panel or 
Appellate Body proceedings. Rather, the purpose of that  arbitration was to set an amount of compensation 
pending full compliance by the responding Member. (See Award of the Arbitrators, US – Section 110(5) 
Copyright Act (Article 25) ) 
20 Articles 21 and 22 of the DSU apply mutatis mutandis  to decisions by arbitrators. WT/AB/26 
 
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2  COMPOSITION OF THE APPELLATE BODY The Appellate Body is a standing body composed  of seven Members, each appointed by the DSB 
for a term of four years with the possibility of being reappointed once for another four-year term.  
The first four-year terms of Mr Ujal Singh Bhatia and Mr Thomas Graham expired on 
10 December 2015. Mr Bhatia and Mr Graham both expressed their interest and willingness to be appointed for a second four-year term. At a meeting held on 22 April 2015, the DSB Chair 
informed WTO Members of his intention to consult informally with delegations on this matter.
21 In 
the light of these consultations, he announced at  the DSB meeting on 28 October his intention to 
host a meeting on 12 November with the two Appellate Body Members and invited any interested delegations who wished to participate to contact him directly or via the Secretariat, and to indicate 
the topics they wished to raise.
22 A total of 28 delegations, including several EU member States, 
participated in the meeting with Mr Bhatia and Mr Graham held on 12 November. There were separate sessions for each Appellate Body Member.  
At the outset of the meeting on 12 November, the Chair of the DSB set out ground rules for the 
orderly conduct of the meeting. In this regard, the Chair emphasized that the meeting was not intended to replicate or repeat the extensive interviews conducted by delegations in connection 
with the original appointments. The Chair also informed the delegations that questions to the 
Appellate Body Members could be posed by Am bassadors or Deputies only, and that each 
delegation was allowed to ask only two questions. Moreover, the delegations could not ask questions that touched upon: (i) any legal issues raised in disputes currently under consultations, 
before panels or before the Appellate Body; (ii) any legal issues on which the Appellate Body ruled 
during the term of the Appellate  Body Member seeking reappointment; and (iii) any legal issues 
which have not yet been addressed by the A ppellate Body. The Chair recalled that the 
Appellate Body Members are bound by the Rule s of Conduct for the DSU as annexed to the 
Working Procedures for Appellate Review, and that  pursuant to Rules II.1 and III.2 they shall be 
independent and impartial, shall avoid direct and in direct conflicts of interest, and shall maintain 
confidentiality. In this regard, the Chair emphasized that the Appellate Body Members could at any 
time decline to answer any of the questions posed during the meeting. 
Following the Chair's introductory remarks at the 12 November informal meeting, four delegations 
made statements regarding the nature of the m eeting and expressed their views on the issue of 
reappointment, as set out in Article 17.2 of the DSU. Subsequently, some delegations posed 
questions. These questions related to: (i) the Appe llate Body Member's interest in reappointment 
and the experiences and insights gained as an Appellate Body Member; (ii) the issue of the 
increased workload of the Appellate Body and how to address it; (iii) the issue of collegiality; and 
(iv) what the Appellate Body can do itself to impr ove the efficiency of the Appellate Body process. 
The Chair noted that the Appellate Body Member s had answered all questions posed to them. 
In the light of the results of the DSB Chair's cons ultation process, including the meeting held on 
12 November, the DSB decided, at its meeting on 25 November 2015, to reappoint Mr Ujal Singh Bhatia and Mr Thomas Graham for a second four-year term starting on 11 December 2015.
23  
The composition of the Appellate Body in 2015 and the respective terms of office of its Members 
are set out in Table 1.  
                                               
21 See WT/DSB/M/360. 
22 See WT/DSB/M/369. 
23 See WT/DSB/M/370. WT/AB/26 
 
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  Table 1: Composition of the Appellate Body in 2015 
Name Nationality Term(s) of office 
Ujal Singh Bhatia India 2011–2015 
2015–2019 
Seung Wha Chang Korea 2012–2016 
Thomas R. Graham United States 2011–2015 
2015–2019 
Ricardo Ramírez-Hernández Mexico 2009–2013 
2013–2017 
Shree Baboo Chekitan Servansing Mauritius 2014-2018 
Peter Van den Bossche Belgium 2009–2013 
2013–2017 
Yuejiao Zhang China 2008–2012 
2012–2016 
 Pursuant to Rule 5.1 of the Working Procedur es, the Members of the Appellate Body elected 
Mr Peter Van den Bossche to serve as Chairman of the Appellate Body from 1 January to 
31 December 2015.
24 In November 2015, Mr Thomas Graham was elected to serve as Chairman as 
of 1 January 2016 until 31 December 2016. 
Biographical information about the Members of the Appellate Body is provided in Annex 4. A list of 
former Appellate Body Members and Chairpersons is provided in Annex 5. 
The Appellate Body receives legal and administrative support from the Appellate Body Secretariat, 
in accordance with Article 17.7 of the DSU. As at 31 December 2015, the Secretariat comprised a 
Director, seventeen lawyers, one administrative a ssistant, and four support staff. Werner Zdouc 
has been Director of the Appellate Body Secretariat since 2006. 
3  APPEALS 
Pursuant to Rule 20(1) of the Working Procedures and Article 16(4) of the DSU, an appeal is 
commenced by a party to the dispute giving written notice to the DSB and filing a Notice of Appeal with the Appellate Body Secretariat. Rule 23(1) of the Working Procedures allows a party to the dispute other than the initial appellant to join the appeal, or appeal on the basis of other alleged 
errors, by filing a Notice of Other Appeal within fi ve days of the filing of the Notice of Appeal. 
Eight panel reports concerning seven matters were appealed in 2015. Two disputes related to 
compliance proceedings, while all remaining disputes related to original proceedings. 
"Other appeals" were filed pursuant to Rule 23(1) of the Working Procedures in six out of the eight 
disputes. Table 2 sets out further information regarding appeals filed in 2015. 
                                               
24 See WT/DSB/69. WT/AB/26 
 
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  Table 2: Panel reports appealed in 2015 
Panel report appealed Date of appeal Appellanta Document 
symbol Other 
appellant b Document 
symbol 
United States – 
Anti-Dumping Measures on Certain Shrimp from Viet Nam 6 January 2015 Viet Nam WT/DS429/5 - - 
India – Measures 
Concerning the 
Importation of Certain 
Agricultural Products  26 January 2015 India WT/DS430/8 - - 
Peru – Additional Duty on 
Imports of Certain Agricultural Products 25 March 2015 Peru WT/DS457/7 Guatemala WT/DS457/8 
China – Measures 
Imposing Anti-Dumping 
Duties on 
High-Performance 
Stainless St eel Seamless 
Tubes ("HP-SSST") 
from Japan 20 May 2015 Japan WT/DS454/7 China WT/DS454/8 
China – Measures 
Imposing Anti-Dumping Duties on High-Performance Stainless St eel Seamless 
Tubes ("HP-SSST") from the European Union 20 May 2015 China WT/DS460/7 European 
Union WT/DS460/8 
United States – Measures 
Concerning the 
Importation, Marketing 
and Sale of Tuna and 
Tuna Products: Recourse 
to Article 21.5 of the DSU 
by Mexico 5 June 2015 United 
States WT/DS381/24 Mexico WT/DS381/25 
European Communities – 
Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China – Recourse to Article 21.5 of the DSU by China 9 September 
2015 European 
Union WT/DS397/21 China WT/DS397/22 
Argentina – Measures 
Relating to Trade in Goods 
and Services 27 October 2015 Panama WT/DS453/7 Argentina WT/DS453/8 
a Pursuant to Rule 20(1) of the Working Procedures . 
b Pursuant to Rule 23(1) of the Working Procedures . WT/AB/26 
 
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  Further information on the number of appeals filed each year since 1995 is provided in Annex 6. 
Chart 1 shows the number of appeals f iled each year between 1995 and 2015. 
Chart 1: Total number of appeals 1995–2015 
 
 
 The overall average of panel reports that have  been appealed from 1995 to 2015 is 67%. 
A breakdown of the percentage of panel reports appealed each year is provided in Annex 7. WT/AB/26 
 
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  4  APPELLATE BODY REPORTS 
Eleven Appellate Body reports concerning seven matters were circulated in 2015, the details of 
which are summarized in Table 3. As of the end of 2015, the Appellate Body has circulated a total of 138 reports. 
Table 3: Appellate Body reports circulated in 2015 
Case Document symbol Date circulated Date adopted  
by the DSB 
Argentina – Measures Affecting 
the Importation of Goods* WT/DS438/AB/R 
WT/DS444/AB/R WT/DS445/AB/R  15 January 2015 26 January 2015 
United States – Certain 
Country of Origin Labelling 
(COOL) Requirements – 
Recourse to Article 21.5 of the 
DSU by Canada and Mexico* WT/DS384/AB/RW 
WT/DS386/AB/RW 18 May 2015 20 May 2015 
United States – Anti-Dumping 
Measures on Certain Shrimp from Viet Nam WT/DS449/AB/R 7 April 2015 22 April 2015 
India – Measures Concerning 
the Importation of Certain 
Agricultural Products WT/DS430/AB/R 4 June 2015 19 June 2015 
Peru – Additional Duty on 
Imports of Certain Agricultural Products WT/DS457/AB/R 20 July 2015 31 July 2015 
China – Measures Imposing 
Anti-Dumping Duties on 
High-Performance Stainless 
Steel Seamless Tubes 
("HP-SSST") from Japan / 
the European Union WT/DS454/AB/R 
WT/DS460/AB/R 14 October 2015 28 October 2015 
United States – Measures 
Concerning the Importation, 
Marketing and Sale of Tuna 
and Tuna Products - Recourse 
to Article 21.5 of the DSU by 
Mexico WT/DS381/AB/RW 20 November 2015 3 December 2015 
* Appellate Body reports concerning disputes with the same title were circulated as a single document.  
 
 WT/AB/26 
 
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  Table 4 below shows which WTO agreements were addressed in the Appellate Body reports 
circulated in 2015. 
Table 4: WTO Agreements addressed in A ppellate Body reports circulated in 2015 
Case Document symbol WTO agreements addressed 
Argentina – Measures Affecting 
the Importation of Goods* WT/DS438/AB/R 
WT/DS444/AB/R WT/DS445/AB/R  Agreement on Import 
Licensing Procedures 
DSU  
GATT 1994 
United States – Certain Country 
of Origin Labelling (COOL) 
Requirements – Recourse to 
Article 21.5 of the DSU by 
Canada and Mexico* WT/DS384/AB/RW 
WT/DS386/AB/RW DSU 
GATT 1994 
TBT Agreement 
United States – Anti-Dumping 
Measures on Certain Shrimp 
from Viet Nam WT/DS429/AB/R Anti-Dumping Agreement 
DSU 
GATT 1994 
India – Measures Concerning the 
Importation of Certain 
Agricultural Products WT/DS430/AB/R DSU 
GATT 1994 
SPS Agreement 
Peru – Additional Duty on 
Imports of Certain 
Agricultural Products WT/DS457/AB/R Agreement on Agriculture 
DSU 
GATT 1994 
China – Measures Imposing 
Anti-Dumping Duties on 
High-Performance Stainless Steel 
Seamless Tubes ("HP-SSST") 
from Japan / the European Union WT/DS454/AB/R 
WT/DS460/AB/R Anti-Dumping Agreement 
DSU 
GATT 1994 
United States – Measures 
Concerning the Importation, 
Marketing and Sale of Tuna and 
Tuna Products - Recourse to 
Article 21.5 of the DSU 
by Mexico WT/DS381/AB/RW DSU 
GATT 1994 
TBT Agreement 
* Appellate Body reports concerning disputes with the same title were circulated as a single document. 
 WT/AB/26 
 
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  Chart 2 below shows the number of times specific WTO agreements have been addressed in the 
138 Appellate Body reports circulated from 1996 through 2015. 
Chart 2: WTO agreements addressed in appeals 1996–2015 
 
 
 The findings and conclusions contained in the Appellate Body reports circulated in 2015 are 
summarized below. 
4.1  Appellate Body Reports, Argentina – Measures Affecting the Importation of Goods,  
WT/DS438/AB/R, WT/DS444/AB/R, and WT/DS445/AB/R 
These disputes concerned challenges brought by the European Union (DS438), the United States 
(DS444), and Japan (DS445) (the complainants) against Argentina's imposition on prospective importers of five trade-related requirements (TRRs) as a condition to import goods into Argentina or to obtain certain benefits (the TRRs measur e). The complainants also challenged a procedure 
through which Argentina requires prospective importers to file an Advance Sworn Import 
Declaration ( Declaración Jurada Anticipada de Importación  (DJAI)) prior to importation, and 
prohibits importation or imposes certain conditions on importation depending on the reaction of 
certain government agencies to such declaration (the DJAI procedure).  
As defined by the complainants, the TRRs measure consists of the impositi on by Argentina of one 
or more of the following TRRs: (a) to export goods of a value equal to or hi gher than the value of 
imports; (b) to reduce imports; (c) to incorporate more local content into domestically produced 
goods; (d) to make or increase investments in Argentina; and (e) to refrain from repatriating 
profits. With respect to this measure, the complainants claimed before the Panel that Argentina acted inconsistently with Articles X:1 and XI:1  of the GATT 1994. The European Union and Japan 
also claimed that the TRRs measure is inconsistent with Article III:4 of the GATT 1994.  
With respect to the DJAI procedure, the complainants claimed before the Panel that Argentina acts 
inconsistently with Articles X:3(a) and XI:1 of the GATT 1994, and Articles 1.3, 1.4(a), 1.6, 3.2, 
3.3, 3.5(f), and 5.1-5.4 of the Agreement on Import Licensing Procedures (Import Licensing 
Agreement). The European Union and Japan also cl aimed that the DJAI procedure is inconsistent 
with Article X:1 of the GATT 1994. 
The Panel found that the DJAI procedure is inconsistent with Article XI:1 of the GATT 1994 
because it constitutes a restriction on the importation of goods, but exercised judicial economy with respect to the complainants' claims under Articles X:1 and X:3(a) of the GATT 1994 and Articles 1.3, 1.4(a), 1.6, 3.2, 3.3, 3.5(f), and 5.1-5.4 of the Import Licensing Agreement. With 
respect to the TRRs, the Panel found that the measure at issue is inconsistent with Article XI:1 of 
the GATT 1994, because it constitutes a restriction on the importation of goods. Having made this 
finding, the Panel exercised judicial economy with respect to the complainants' claim that the TRRs 
measure had not been published promptly as required under Article X:1 of the GATT 1994. WT/AB/26 
 
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  The Panel also found that the TRRs measure, with  respect to the local content requirement, is 
inconsistent with Article III:4 of the GATT 1994, because it grants imported products treatment less favourable than that granted to like domestic products. The Panel further found that the TRRs measure is inconsistent "as such" with these provisions. 
 
4.1.1  The Panel's terms of reference 
4.1.1.1  Argentina's appeal 
Argentina appealed the Panel's findings that the TRRs measure fell within the Panel's terms of 
reference. Argentina argued that, because the complainants did not identify a single or "overarching" TRRs measure in their requests for consultations, the identification of a single or "overarching" TRRs measure in their panel requests expanded the scope or changed the essence of 
the dispute.  
The Appellate Body compared the consultations requests and panel requests and, like the Panel, 
observed a high degree of similarity in the language  and content of the two sets of requests. First, 
with respect to the TRRs, the consultations requests and the panel requests identify the same five 
"commitments" or "requirements" that Argentina imposes on economic operators. Second, both sets of requests describe these five "commitments" or "requirements" as being "trade restrictive". 
While the consultations requests use the term "trade restrictive commitments", the panel requests 
each contain a separate heading entitled "Restrictive Trade Related Requirements". Third, both sets of requests describe these "commitments" or "requirements" as being imposed pursuant to Argentina's "stated policies" or "policy objectives" of "import substitution" and the "elimination of 
trade deficits". Finally, both sets of requests id entify a relationship between the "commitments" or 
"requirements", on the one hand, and the import certificates ( Certificados de Importación , CIs) 
and the DJAI, on the other hand. The Appellate Body thus found that the language identifying the 
single TRRs measure in the complainants' panel requests can be considered to have evolved from 
the language of their consultations requests.  
The Appellate Body recognized that the two sets of requests also have some differences. For 
example, the EU panel request refers to an "overarching measure" whereas its consultations 
request does not. Nevertheless, the Appellate Body considered that these differences alone do not mean that the language identifying the single TRRs measure in the panel requests cannot be considered to have evolved from the language identifying the "commitments" in the consultations 
requests. In this connection, the Appellate Body re called that there is no need for a "precise and 
exact identity" between the consultations request an d the panel request, provided that there is no 
expansion in the scope of the dispute or a change in its essence. The Appellate Body stated that a 
panel request must identify the " specific  measure at issue" in a manner that is sufficiently precise, 
as required by Article 6.2 of the DSU, and that does not expand the scope or change the essence 
of the dispute. In the view of the Appellate Body, the language identifying the single TRRs 
measure in the panel requests can be considered to have evolved from, and to be a more 
elaborate version of, the language identifying the "commitments" in the consultations requests. The Appellate Body agreed with the Panel that the description of the TRRs as a single or 
"overarching" measure is only an "enunciation in different terms" of the same measures identified 
in the consultations requests. For these reasons, th e Appellate Body agreed with the Panel that the 
panel requests reflect a permissible reformulation of the measure at issue that did not expand the scope or change the essence of the dispute. 
Furthermore, the Appellate Body found that noth ing in the language of the requests mentioned 
above suggested that the challenge raised by the co mplainants was limited to specific instances of 
application of the TRRs, or precluded the identification of a single or "overarching" TRRs measure 
in the panel requests. Specifically, the complainants' consultations requests state that Argentina 
"often requires " importers to undertake five "commitments", which are the same 
five "requirements" identified in the panel reques ts. The consultations requests also state that the 
measures identified therein (i.e. the DJAI procedure, the CIs, and the "commitments") are aimed 
at advancing or pursuing Argentina's "stated policies" of "import substitution" and "elimination of 
trade balance deficits". The consultations requests then state that the "legal measures through which Argentina imposes these restrictions include, but are not limited to , the legal instruments 
listed in the Annexes". The Appellate Body found that, rather than limiting the measures at issue 
identified in the panel requests to those that are challenged "as applied", the foregoing language of the consultations requests may reasonably be read as establishing a basis from which the WT/AB/26 
 
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  complainants could legitimately elaborate their description of the measure at issue as the single or 
"overarching" TRRs measure in their panel requests.  
Accordingly, the Appellate Body upheld the Panel's ru ling that the characterization of the TRRs as a 
single measure in the complainants' panel requests did not expand the scope or change the 
essence of the dispute. Hence, the TRRs measur e was within the Panel's terms of reference. 
4.1.1.2  The European Union's other appeal The European Union appealed the Panel's finding that the 23 specific instances of application of the 
TRRs identified in its panel request do not constitute measures at issue in this dispute. 
The European Union argued that the language of its panel request shows that it was not only challenging the existence of an overarching measure, but also challenging separately 29 instances in which Argentina imposed certain TRRs that share the same characteristics as the five 
requirements described as part of the overarching measure.  
The Appellate Body found that the Panel erred in ruling that the European Union's Panel request 
was not "sufficiently precise" in identifying these 23 specific instances as measures at issue 
because a reader of the panel request would have to visit the websites on which information 
regarding these instances may be found, and then deduce therefrom what the challenged measures are. The Appellate Body recalled that the determination of whether a panel request 
satisfies the requirements of Arti cles 6.2 of the DSU must be base d on an examination of the panel 
request on its face as it existed at the time of it s filing. The term "on its face", however, must not 
be so strictly construed as to automatically preclude reference to sources that are identified in the text of the panel request, but the contents of which are only accessible outside the panel request 
document itself. In this case, the Appellate Body found that the European Union's Panel request 
provides references to the websites on which press releases and news articles explaining the 23 instances may be found, and that the contents of these websites may be permissibly 
examined in order to ascertain whether the measure at issue is identified consistently with the 
requirements of Article 6.2 in the EU Panel reques t. Thus, the Appellate Body reversed the Panel's 
finding that the 23 measures described by the Euro pean Union in Section 4.2.4 of its first written 
submission as "specific instances" of application of the TRRs were not precisely identified in the 
EU Panel request as measures at issue, and that these 23 specific instances do not constitute measures at issue in this dispute. 
The Appellate Body then assessed whether the EU Panel request identified the 23 specific 
instances of application of the TRRs as measures at  issue by examining the contents of each of the 
press releases and news articles from the webs ites referred to in the EU Panel request. 
The Appellate Body found the 23 specific instances of  application of the TRRs that are the object of 
the European Union's claims to be discernible from the press releases and news articles. In each 
instance, the Appellate Body found the contents of the press release or news article to provide the 
following information: (i) the involvement of the Argentine Government; (ii) the particular 
economic operator, sector, or industry concerned; and (iii) the specific TRR(s) allegedly imposed. 
Thus, the specific measures at issue were discernible from the press releases and news articles.  
Turning to Argentina's contention that these 23 measures were in any event outside the Panel's 
terms of reference because they were not id entified in the consultations request, the 
Appellate Body recalled that the European Union's consultations request enumerates five 
"commitments" that Argentina "often requires" importers of goods to undertake. The instances listed by the European Union in Annex III to its panel request, in turn, appear to be specific 
instances of application of these "commitments". Thus, the language of the European Union's 
consultations request encompasses the specific instances of application identified in the EU Panel request. Consequently, the identification of th ese 23 measures in the EU Panel request did not 
amount to an expansion in the scope or a change in the essence of the dispute, but may rather be 
considered as a permissible refinement or reformulation of the complaint following the consultations process. Thus, the Appellate Body did not find any merit in Argentina's arguments. 
Accordingly, unlike the Panel, the Appellate Body considered that the EU Panel request identified 
the specific measures at issue in this dispute consistently with the requirements of Article 6.2 of 
the DSU. In consequence, the Appellate Body reversed the Panel's finding that these specific instances "were not precisely identified in EU Panel request as measures at issue" and that WT/AB/26 
 
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  "accordingly, those 23 measures do not constitute 'measures at issue' in the present dispute". In 
addition, the Appellate Body found that these 23 measures were within the Panel's terms of reference. 
The European Union also made a conditional appeal, requesting completion of the legal analysis 
with respect to the consistency or inconsistency of the 23 specific instances of application of the 
TRRs with Articles XI:1 and/or III:4 of the GATT 19 94 in the event that the Appellate Body were to 
reverse or otherwise declare moot and of no legal effect the Panel's findings that: (i) the TRRs 
measure exists; and (ii) the TRRs measure is inconsistent with Articles XI:1 and III:4 of the 
GATT 1994. Because the conditions on which this request was based were not met, as explained 
below, the Appellate Body refraine d from completing the analysis. 
4.1.2  TRRs measure 
4.1.2.1  Identification of the single unwritten TRRs measure 
4.1.2.1.1  The joint claims against the TRRs measure Argentina appealed the Panel's finding that the complainants had established that the TRRs 
measure exists or operates as a single measure and, consequently, that the TRRs measure is 
inconsistent with Articles III:4 and XI:1 of the GATT 1994. In particular, Argentina claimed that the Panel failed to apply the correct legal standard in ascertaining the existence of the alleged 
TRRs measure in its evaluation of the joint claims by the three complainants against the TRRs 
measure ("joint claims"). For Argentina, it was evident that the complainants had, in effect, raised "as such" claims against the TRRs measure. Thus, the Panel should have applied the legal standard articulated by the Appellate Body in US – Zeroing (EC), rather than the one articulated by the 
Panel in US – COOL  to ascertain whether multiple measures can be assessed for WTO-consistency 
as a single measure, rather than as individual measures. Argentina, therefore, requested the Appellate Body to reverse the Panel's conclusions that the TRRs measure operates as a single 
measure and that it is inconsistent with Articles XI:1 and III:4 of the GATT 1994. 
The Appellate Body considered that, when tasked  with assessing a challenge against an unwritten 
measure, a Panel need not always apply the legal standard or criteria formulated by the 
Appellate Body for the evaluation of "as such" challenges against measures. The Appellate Body 
stated that the distinction between "as such" and "as applied" claims does not govern the definition of the measures that can be challenged in WTO dispute settlement and that the distinction between rules or norms of general an d prospective application and their individual 
applications does not define exhaustively the types of measures that are subject to WTO dispute 
settlement. 
The Appellate Body recalled that the "measures" that may be the object of WTO dispute settlement 
extend to any act or omission that is attributable to a WTO Member and that this broad concept of 
measures is not limited merely to rules or norm s of general and prospective application and their 
individual applications. Thus, the Appellate Body considered that the notion of a measure that is a 
rule or norm of general and prospective application as reflected in the finding of the 
Appellate Body in US – Zeroing (EC)  cannot be considered as setting forth a general legal standard 
that must always be satisfied in order to prove the existence of an unwritten measure challenged in WTO dispute settlement. Rather, according to th e Appellate Body, the constituent elements that 
must be substantiated with evidence and argu ments in order to prove the existence of a 
challenged measure will be informed by how such measure is described or characterized by the complainant. The specific measure challenged and how it is described or characterized by a 
complainant will inform the kind of evidence a complainant is required to submit and the elements 
that it must prove in order to establish the existence of that measure. A complainant seeking to prove the existence of an unwritten measure will inva riably be required to prove the attribution of 
that measure to a Member and its precise content. Depending on the specific measure challenged 
and how it is described or characterized by a co mplainant, however, other elements may need to 
be proven. 
In these disputes, considering that in their joint claims the complainants did not challenge the 
TRRs measure as a rule or norm of general and prospective application, the Appellate Body was 
not persuaded that they were required to demonstrate the existence of the TRRs measure based WT/AB/26 
 
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  on the criteria formulated by the Appellate Body in US – Zeroing (EC)  and, in particular, that such 
measure had general and prospective application. Rather, the complainants had to provide evidence and arguments to demonstrate the existenc e of the challenged measure, and specifically 
a measure that, as they contended, was applied syst ematically and would continue to be applied in 
the future. 
The Appellate Body concluded that the Panel correctly examined the relevant constituent elements 
of the measure subject to the joint claims and determined, based on the evidence and arguments 
the complainants presented, the existence of a TR Rs measure composed of several individual TRRs 
operating together in an interlinked fashion as part of a single measure in pursuit of the objectives of import substitution and trade deficit reduction. The Panel also found that the TRRs measure has systematic application, as it applies to economic operators in a broad variety of different sectors, 
and that it has present and continued application, in the sense that it currently applies and it will 
continue to be applied in the future unless and until the underlying policy is modified or withdrawn by the Argentine Government. Accordingly, the Appellate Body held that the Panel correctly found 
that the complainants had demonstrated the existence of a TRRs measure.  
Therefore, the Appellate Body upheld the Panel's finding in respect of the joint claims that 
"the Argentine authorities' imposition on economic operators of one or more of the five 
requirements identified by the complainants as a condition to import or obtain certain benefits 
operates as a single measure (the TRRs measure)  attributable to Argentina". Consequently, the 
Appellate Body upheld the Panel's findings that the TRRs measure is inconsistent with Articles III:4 and XI:1 of the GATT 1994. 
4.1.2.1.2   Article 11 of the DSU – Japan's "as such" claims 
Argentina claimed that the Panel acted inconsistently with its duty under Article 11 of the DSU to 
conduct an objective assessment of the matter when examining Japan's "as such" claims. 
Argentina contended that the Panel found that Japan had established the existence of the alleged 
TRRs measure without properly examining whether and to what extent Japan had adduced sufficient evidence to demonstrate the alleged measure's precise content, or its general and 
prospective application, and based on insufficient and incoherent reasoning. 
Before addressing Argentina's appeal under Arti cle 11 of the DSU, the Appellate Body made two 
preliminary observations. First, the Appellate Body considered the Panel's findings on the TRRs measure "as such" to amount in substance to no more than the findings the Panel had already 
made in respect of the TRRs measure as challenged under the joint claims. The Appellate Body 
reached this view after having noted that the Panel's findings in respect of the joint claims and those in respect of Japan's "as such" claims concerned the same underlying TRRs measure and 
were based on virtually the same evidence and the same reasoning. Second, the Appellate Body 
stated that its consideration of Argentina's claim under Article 11 of the DSU could not ignore the fact that Argentina bore at least some responsibility for the evidentiary difficulties faced by the 
Panel. In this respect, the Appellate Body recalled that, before the Panel, Argentina had refused to 
provide copies of the agreements between the Argentine Government and economic operators, 
which it did not deny were in its possession. These agreements constitute the principal evidence of the TRRs imposed by Argentina. 
With respect to the Panel's finding regarding the precise content of the TRRs measure, the 
Appellate Body considered that the Panel had adopte d a unified, holistic approach to its analysis of 
the TRRs measure, meaning that the Panel's analysis of Japan's "as such" claims could not be read 
in isolation from the Panel's earlier findings on the TRRs measure. The Appellate Body noted that 
the Panel made findings on the precise content of the same TRRs measure in the section of the Panel Reports addressing the complainants' joint claims based on extensive record evidence 
produced by the complainants. Therefore, when the Panel turned to consider Japan's "as such" 
claims against the TRRs measure, the Panel was clearly relying on its earlier findings on the precise content of the TRRs measure as challenged  under the joint claims, having already devoted 
a significant part of its Reports to discussing eviden ce of the content of each individual TRR and of 
the TRRs measure. 
With respect to the Panel's finding that the TRRs measure has general application, the 
Appellate Body considered that Argentina took issue with the Panel's interpretation and application WT/AB/26 
 
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  of the concept of "general" application, rather than with the Panel's treatment of the evidence 
showing how the TRRs were applied, or the Panel's reasoning on the basis of that evidence. In this respect, the Appellate Body did not consider that Argentina's claim that the complainants failed to 
demonstrate that the TRRs measure had "general" application was properly raised under Article 11 
of the DSU. 
With respect to the Panel's finding that the TRRs measure has prospective application, the 
Appellate Body considered that, contrary to Argentina's assertion, the Panel did not rely 
exclusively on a single piece of evidence to determine that the TRRs measure has prospective 
application. Rather, the Appellate Body noted that the Panel cross-referenced its earlier findings that the TRRs measure reflects a "deliberate policy", constituting repeated actions, coordinated and publicly announced by the highest authoritie s. The Appellate Body also considered that 
depending on the circumstances of a particular ca se, a single piece of evidence may constitute 
sufficient proof that a measure has prospective application and that thus, even assuming that the Panel relied only on one exhibit to support its findings that the TRRs measure is prospective in 
nature, this did not in and of itself constitute a violation of Article 11 of the DSU. 
Finally, the Appellate Body emphasised that Argentina did not elaborate any specific allegations or 
examples of incoherence or contradictions in the Panel's reasoning or point to any lack of 
even-handedness in the evaluation of the ev idence. Moreover, Argentina had not presented 
competing evidence to the Panel, or engaged wi th the evidence presented by the complainants. 
For these reasons, the Appellate Body found that  Argentina did not establish that the Panel's 
reasoning on the general and prospective application of the TRRs measure is incoherent, or that 
such deficiency amounted to a failure to make an objective assessment. 
In sum, the Appellate Body did not consider that Argentina established that the Panel failed to 
ensure that its findings were based on record evidence and were supported by reasoned and 
adequate explanations and coherent reasoning. Th erefore, the Appellate Body rejected Argentina's 
claim that the Panel acted inconsistently with Article 11 of the DSU. 
In reaching this conclusion, the Appellate Body stated that it did not wish to be seen as endorsing 
the Panel's additional findings on Japan's "as such" claims against the TRRs measure. The 
Appellate Body explained that it considered the Panel's "as such" findings on the TRRs measure as amounting in substance to no more than the findings the Panel had already made in respect of the TRRs measure as challenged under the joint claims. In particular, the Appellate Body stated that it 
understood the Panel, in purporting to find that the TRRs measure has "general application", in 
fact to have found nothing other than that the TRRs measure has "systematic application". 
Similarly, the Appellate Body understood the Panel, in purporting to find that the TRRs measure 
has "prospective application", to have found no mo re than that the TRRs measure will continue to 
be applied in the future.  
4.1.2.2  The Panel's exercise of judicial economy under Article X:1 of the GATT 1994 
Japan appealed the Panel's exercise of judicial economy with respect to Japan's claim against the 
TRRs measure under Article X:1 of the GATT 1994. According to Japan, the Panel acted inconsistently with Articles 3.4, 3.7, 7.2, and/or  11 of the DSU by exercising judicial economy on 
this claim because the "scope and content" of Article X:1 is distinct from the "scope and content" 
of Articles III:4 and XI:1 of the GATT 1994, and compliance with a finding under the latter 
provisions would not necessarily result in compliance with a finding under Article X:1. Japan requested that the Appellate Body reverse the Panel's decision to apply judicial economy and 
complete the analysis and find that the TRRs measure is inconsistent with Argentina's obligations 
under Article X:1. 
Before examining Japan's claim, the Appellate Body  recalled that that the principle of judicial 
economy allows a Panel to refrain from making multiple findings that the same measure is 
inconsistent  with various provisions when a single, or a certain number of findings of 
inconsistency, would suffice to resolve the disput e. The Appellate Body also recalled that to 
provide only a partial resolution of the matter at issue would be false judicial economy, and that a 
Panel has to address those claims on which a finding is necessary in order to enable the DSB to 
make sufficiently precise recommendations and rulings so as to allow for prompt compliance by a WT/AB/26 
 
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  Member with those recommendations and rulings in order to ensure effective resolution of disputes 
to the benefit of all Members. 
Turning to Japan's claim, the Appellate Body cons idered that the fact that two provisions have 
different "scope and content" does not, in and of itself, imply that a Panel must address each and 
every claim under those provisions. Moreover, the Appellate Body noted some ambiguity in Japan's 
argument concerning compliance obligations, which may be understood to refer to the 
publication of: (i) any implementing measures that may be adopted by Argentina to bring the 
TRRs measure into conformity with Articles III:4 and XI:1 of the GATT 1994; or (ii) the current 
GATT-inconsistent TRRs measure. 
The Appellate Body disagreed with Japan's argument to the extent that it may be understood as 
suggesting that a finding under Article X:1 of the GATT 1994 is necessary to ensure that Argentina 
is subject to an obligation to publish promptly any implementing measures that may be adopted to 
bring the TRRs measure into conformity with th e GATT 1994. This is because the obligation to 
publish promptly any new or modified laws of general application does not stem from the 
implementation of a finding of inconsistency of th e current TRRs measure with Article X:1. Rather, 
for any new or modified implementing measures that fall within the scope of Article X:1, the 
publication obligation stems from Article X:1 itself.  
The Appellate Body also disagreed with Japan's argument to the extent that it may be understood 
as referring to the publication of the current GA TT-inconsistent TRRs measure. The Appellate Body 
noted that, to the extent that Argentina will have  t o  m o d i f y  o r  w i t h d r a w  t h e  T R R s  m e a s u r e  t o  
comply with the recommendations under Articl es III:4 and XI:1 of the GATT 1994, the TRRs 
measure – in its current form and with its current content – will cease to exist. Accordingly, the 
Appellate Body failed to understand how the publication of this WTO-inconsistent measure would c o n t r i b u t e  t o  s e c u r i n g  a  p o s i t i v e  s o l u t i o n  t o  t h i s  d i s p u t e .  I n  a d d i t i o n ,  r e f e r r i n g  t o  J a p a n ' s  
understanding that the publication of the current TRRs measure is necessary to verify Argentina's 
compliance with its obligations, the Appellate Body considered that the elaboration of the content of the current TRRs measure in the Panel Reports would assist in assessing Argentina's actions to 
bring the TRRs measure into conformity with  Argentina's obligations under the GATT 1994. 
The Appellate Body concluded that Japan had not demonstrated that a ruling under Article X:1 of 
the GATT 1994 was necessary to secure a positive solution to this dispute, or that the Panel's 
exercise of judicial economy at issue provided on ly a partial resolution of the matter. Thus, the 
Appellate Body found that Japan had not establishe d that the Panel erred in exercising judicial 
economy on Japan's claim that the TRRs measure is inconsistent with Article X:1. Accordingly, the 
Appellate Body also rejected Japan's request th at the Appellate Body complete the analysis. 
4.1.3  DJAI procedure: Articles VIII and XI:1 of the GATT 1994 
Argentina raised three claims of error in connection with the Panel's analysis of whether the DJAI 
procedure is inconsistent with Article XI:1 of the GATT 1994, namely that: (i) the Panel erred in its 
interpretation of Article XI:1 of the GATT 1994; ( ii) the Panel erred in its assessment of the scope 
of Article VIII of the GATT 1994; and ( iii) the Panel erred in  concluding that, because the approval 
of a DJAI is not "automatic", the DJAI procedur e is inconsistent with Article XI:1. Argentina 
requested the Appellate Body to modify or reverse the Panel's findings at issue accordingly. 
4.1.3.1  Article XI:1 of the GATT 1994 
Before examining Argentina's claims, the Appellate Body set out its understanding of certain issues 
relating to the interpretation of discrete el ements of Article XI:1 of the GATT 1994. The 
Appellate Body recalled that Article XI:1 lays down a general obligation to eliminate quantitative 
restrictions. It forbids Members to institute or maintain prohibitions or restrictions, other than duties, taxes or other charges, on the importation,  exportation, or sale for export of any product 
destined for another Member. This provision, however, does not cover simply any restriction or 
prohibition. Rather, Article XI:1 refers to prohibitions or restrictions "on the importation … or on the exportation or sale for export". Thus, in th e Appellate Body's view, not every condition or 
burden placed on importation or exportation will be  inconsistent with Article XI, but only those that 
are limiting, i.e. those that limit the importation or exportation of products. Moreover, this 
limitation need not be demonstrated by quantify ing the effects of the measure at issue; rather, WT/AB/26 
 
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  such limiting effects can be demonstrated throug h the design, architecture, and revealing structure 
of the measure at issue considered in its relevant context. 
The Appellate Body also considered that the words "made effective through" in Article XI:1 of the 
GATT 1994 indicate that the scope of Article XI:1 covers measures through which a prohibition or 
restriction is produced or becomes operative. The Appellate Body also noted that, despite the fact 
that the term "or other measures" in Article XI:1 suggests a broad coverage, the scope of 
application of Article XI:1 is not unfettered. Article XI:1 itself explicitly excludes "duties, taxes and 
other charges" from its scope of application. Ar ticle XI:2 of the GATT 1994 further restricts the 
scope of application of Article XI:1 by providing that the provisions of Article XI:1 shall not extend to the areas listed therein. The Appellate Body fu rther acknowledged that certain provisions of the 
GATT 1994, such as Articles XII, XIV, XV, XVIII, XX and XXI, permit a Member, in certain specified 
circumstances, to be excused from its obligations  under Article XI. In these provisions, express 
reference is made to the relationship of each provision with the obligations contained in Article XI:1 or with the obligations under the GATT 1994 more generally. Other provisions, not 
explicitly referring to the obligations contained in Article XI:1, or to the obligations under the 
GATT 1994 more generally, may also contain elements that are relevant to their relationship with, and the interpretation of, Article XI:1.  
4.1.3.2  The Panel's interpretation of Article XI:1 of the GATT 1994 
Argentina claimed that the Panel erred in its in terpretation of Article XI:1 of the GATT 1994 by 
failing to establish and apply a "proper analytical framework" for distinguishing between the scope and disciplines of Article VIII of the GATT 1994, on  the one hand, and the scope and disciplines of 
Article XI:1, on the other hand. Argentina alleged that the Panel failed to recognize that an import 
formality or requirement could have some degree of trade-restricting effect that is an ordinary incident of the formality or requirement itself and that does not render the formality or 
requirement inconsistent with Article XI:1.  
First, Argentina argued that the scope of applicat ion of Articles VIII and XI:1 of the GATT 1994 are 
mutually exclusive. Given Argentina's argument, the Appellate Body considered it necessary to 
examine Article VIII of the GATT 1994. The Appell ate Body noted that Article VIII imposes three 
clear obligations on Members in Article VIII:1(a), Article VIII:2, and Article VIII:3. By contrast, 
Articles VIII:1(b) and VIII:1(c) of the GATT 1994 do  not appear to impose mandatory obligations. 
Rather, the language of the latter two provisions is more hortatory in nature. The Appellate Body 
also noted that Article VIII:4 outlines the scope of Article VIII. The Appellate Body accepted that 
the language in Article VIII:1(c) implies a recognition by Members that import formalities and requirements can have trade-restricting effects, at least to some degree, and that Article VIII:1(c) 
constitutes context for the interpretation of Article XI:1 and for what amounts to a restriction on 
importation within the meaning of the latter provision. Yet, the Appellate Body concluded that the language in Article VIII:1(c) does not suffice to establish the type of carve-out or derogation from 
Article XI:1 that Argentina seemed to envisage for formalities and requirements referred to in 
Article VIII. Thus, the Appellate Body rejected Argentina's first argument, and agreed with the 
Panel that formalities or requirements under Article VIII are not excluded per se  from the scope of 
application of Article XI:1, and that their consistency could be assessed under either Article VIII or 
Article XI:1, or under both provisions. The Appellate  Body also rejected Argentina's argument that 
Articles VIII and XI:1 have mutually exclusive sphe res of application. Instead, like the Panel, the 
Appellate Body considered that the obligations contained in Articles VIII and XI:1 apply 
harmoniously and cumulatively.  
The Appellate Body then turned to Argentina's second argument. Argentina argued that a 
harmonious interpretation of Articles VIII and XI:1 would require, at a minimum, some means of 
distinguishing the trade-restrictive effect of a formality or requirement itself from the 
trade-restrictive effect of any substantive rule of importation that the measure implements. Argentina proposed that, for an import formality or requirement to be found to constitute an Article XI:1 restriction, in its own right, it must be shown that: (i) the formality or requirement 
limits the quantity of imports to a material degree that is independent of the trade-restricting 
effect of any substantive rule of importation that the formality or requirement implements; and (ii) this independent trade-restricting effect is greater than the effect that would ordinarily be 
associated with a formality or requirement of its nature. The complainants contended that 
Argentina's analytical framework is not applicable to these disputes because the complainants' claims do not concern import formalities or requirements. Rather, the complainants' claims WT/AB/26 
 
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  concern the DJAI's discretionary system of authorization of imports that, on its face, does not 
implement a separate WTO-consistent restriction. 
At the outset, the Appellate Body noted that Argent ina had not identified a specific legal basis for 
its analytical framework. The Appellate Body also  disagreed with Argentina's argument that the 
Panel's reasoning implied that any measure falling within the scope of Article VIII of the 
GATT 1994 would be prohibited per se  under Article XI:1 of the GATT 1994. The Appellate Body 
noted that, in setting out its understanding of Article XI:1, the Panel expressed the view that not 
any condition placed on importation is inconsistent with Article XI, but only those that have a 
limiting effect on imports.  
The Appellate Body then examined whether and un der what circumstances measures that qualify 
as "formalities" or "requirements" under Article VIII of the GATT 1994 may constitute "restrictions" 
under Article XI:1 of the GATT 1994. The Appellate  Body noted that formalities and requirements 
connected to importation that fall within the scope of application of Article VIII typically involve the use of documentary and procedural tools to collect, process, and verify information in connection 
with the importation of products. Such import formalities and requirements will often entail a 
certain burden on the importation of products. At the same time, such formalities and requirements are, at least to some extent, a routine aspect of international trade. Compliance with 
such formalities and requirements enables trade to occur within a Member's specific regulatory 
framework. In the Appellate Body's view, not every burden associated with an import formality or requirement will entail inconsistency with Article XI:1; rather, only those that have a limiting effect on the importation of products will do so. 
The Appellate Body then examined Argentina's prop osed analytical framework. The first step of 
Argentina's proposed analytical framework would require a finding concerning whether an import formality or requirement limits the importation of products independently of any substantive 
restriction that such formality or requirement may implement. Without necessarily accepting 
Argentina's suggestion that such an analysis is mandated as the first part of a two-step approach, the Appellate Body observed that, in any even t, this analysis is consistent with the 
Appellate Body's understanding of Article XI:1 of the GATT 1994. As explained above, Article XI:1 
covers measures through which a prohibition or restriction is produced or becomes operative. If an import formality or requirement does not itself limit the importation of products independently of the limiting effects of another restriction, such import formality or requirement cannot be said to 
produce the limiting effect, and thus, it will not amount to a "restriction" captured by the 
prohibition in Article XI:1. 
The second step in Argentina's proposed analytical framework would require a finding concerning 
whether any "independent trade-restricting effect" of  an import formality or requirement is greater 
than the effect that would ordinarily be associated with a formality or requirement of its nature. Argentina neither identified any textual basis for this proposed analytical step, nor provided any 
illustration of how this abstract and general legal test might be undertaken in practice. The 
Appellate Body was not persuaded that this elemen t of Argentina's proposed analytical framework 
is useful or necessary. Rather, as explained above,  the Appellate Body considered that the analysis 
under Article XI:1 of the GATT 1994 must simply be done on a case-by-case basis, taking into 
account the import formality or requirement at issue and the relevant facts of the case. 
For these reasons, the Appellate Body found that the Panel did not err in its interpretation of 
Article XI:1 of the GATT 1994 by failing to esta blish and apply a "proper analytical framework" for 
distinguishing between the scope and disciplines of  Article VIII of the GATT 1994, on the one hand, 
and the scope and disciplines of Article XI:1, on the other hand. Consequently, the Appellate Body rejected Argentina's request to modify the Panel's reasoning. 
4.1.3.3  The Panel's assessment of the scope of Article VIII of the GATT 1994 
Argentina requested that the Appellate Body modify or reverse certain aspects of the Panel's 
findings in paragraph 6.433 of the Panel reports, concerning whether the DJAI procedure can be considered an import formality or requiremen t under Article VIII of the GATT 1994. Although 
Argentina accepted that the Panel ultimately did not make a finding as to the applicability of 
Article VIII to the DJAI procedure, Argentina cont ended that the statements in paragraph 6.433, in 
particular that a DJAI in "exit" status is a necessary prerequisite for importation and that the DJAI WT/AB/26 
 
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  procedure determines the right to import, reflect legal error and influenced the Panel's 
interpretation of Article XI:1 of the GATT 1994, an d the application thereof to the DJAI procedure. 
Argentina argued that the "clear implication" of  the statements in paragraph 6.433 is that the 
Panel considered any import procedure that is a necessary prerequisite for importing goods or by 
which a Member determines the right to import to be outside the scope of Article VIII. 
The Appellate Body noted that certain aspects of Argentina's argumentation seemed to rest on 
assumptions that do not correspond to the approach taken by the Panel. In particular, although 
Argentina argued that the DJAI procedure consists exclusively of customs or import formalities, 
the Panel did not appear to share this view. The Panel did not clearly express a view either on 
which elements of the DJAI procedure correspond to which types of measures, or on whether individual elements of the DJAI procedure co uld be assessed separately. Moreover, the Panel 
decided to examine the DJAI procedure under Article XI:1 of the GATT 1994 "irrespective of 
whether the DJAI procedure is considered to be a customs or import formality subject to the obligations contained in Article VIII"; declined to opine on whether or not the DJAI procedure is an 
import licensing procedure; and proceeded to a ssess the consistency of the DJAI procedure with 
Article XI:1 "irrespective of whether it constitutes an import licence". In the Appellate Body's view, the Panel's approach did not contribute either to  the clarity of its reasoning, or to a clear 
understanding of the relationship between different obligations under the GATT 1994 and the 
Import Licensing Agreement. Nevertheless, no pa rty challenged the Panel's approach on appeal. 
The Appellate Body then examined the implications that, according to Argentina, arise from the 
reasoning of the Panel in paragraph 6.433 of the Panel Reports. The Appellate Body noted that 
paragraph 6.433 of the Panel Reports is concerned solely with the DJAI procedure, as the Panel did 
not set out, in this paragraph, general principles or legal tests to be applied to import measures generally. In addition, the Appellate Body saw nothing in paragraph 6.433 suggesting that import 
procedures that are a necessary pre-requisite for the importation of goods are excluded from the 
scope of Article VIII of the GA TT 1994. Finally, the Appellate Body noted that the last two 
sentences in paragraph 6.433 may imply that procedures by which a Member determines the right 
to import are not mere formalities in connection with importation within the meaning of 
Article VIII. Even if this were so, however, the Appellate Body considered that such implication 
does not support Argentina's claim of error because a statement that a procedure is not a mere 
formality does not necessarily imply that such procedure is not a formality. Moreover, the Panel 
cannot be understood to have implied in paragraph 6.433 of the Panel Reports that the 
DJAI procedure falls outside the scope of Article VIII because, in the paragraphs that follow paragraph 6.433, the Panel explicitly stated that it would conduct its analysis on the basis of an 
assumption that the DJAI procedure falls within the scope of Article VIII. 
For these reasons, the Appellate Body disagreed wi th Argentina's understanding of the implications 
of paragraph 6.433 of the Panel Reports, and rejected Argentina's request to modify or reverse 
these findings.  
4.1.3.4  Application of Ar ticle XI:1 of the GATT 1994  
Argentina claimed that the Panel erred in finding that, because the attainment of a DJAI in "exit" 
status is not "automatic", the DJAI procedure is inconsistent with Article XI:1 of the GATT 1994. 
Argentina sought reversal of this specific basis for the Panel's finding, as well as of the Panel's 
ultimate finding that the DJAI procedure is inconsistent with Article XI:1. Argentina argued that, in the context of the Panel's overall analysis, it appears to have been the Panel's conclusion that any 
import formality or requirement that is a necessary condition to import goods and that is not 
automatically obtained is, necessarily, a prohibited quantitative restriction under Article XI:1. Argentina contended that this conclusion is not su pported by the context provided by Article 3.2 of 
the Import Licensing Agreement, which, according to Argentina, distinguishes between the 
potential trade-restricting effects of a licensing procedure and those of the underlying rule of importation that the procedure implements. Argentina also argued that to interpret Article XI:1 of the GATT 1994 as prohibiting non-automatic import licensing procedures per se  would conflict with 
Article 3.2 of the Import Licensing Agreement. 
Although Argentina appeared to have understood the term "automatic" in the same sense as that 
word is used in connection with import licensing procedures in the Import Licensing Agreement, 
the Appellate Body considered that the Panel's finding that the attainment of a DJAI in "exit" 
status is not "automatic" did not, and was not intended to, refer to the definition of "automaticity" WT/AB/26 
 
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  in Article 2 of the Import Licensing Agreemen t. The Appellate Body recalled that the Panel 
refrained from making any findings with respect to the complainants' claims under the provisions of the Import Licensing Agreement, and that none of the parties sought to separate and 
distinguish the different elements that compose the DJAI procedure, including any of those 
possibly relating to import licensing procedures. Even if aspects of the DJAI procedure may 
resemble an import licensing procedure, these characteristics of the DJAI procedure were not the focus of the complainants' claims under Article XI:1 of the GATT 1994. Rather, the main focus of 
their claims was the discretionary elements involved  in the entering and lifting of observations.  
Moreover, the Appellate Body noted that one of the dictionary definitions of "automatic" is 
"[o]ccurring as a necessary consequence; … ta king effect without further process in set 
circumstances", and that the Panel's reasoning leadin g up to its statement that the attainment of a 
DJAI in "exit" status is not "automatic" seems consistent with this meaning of "automatic". Finally, 
the Appellate Body reasoned that the meaning of the words "not automatic", as intended by the 
Panel, becomes clear once the Panel's use of these words is examined in the light of the preceding 
and subsequent paragraphs of the Panel Reports. The Appellate Body considered that the Panel's 
reference to the attainment of a DJAI in "exit" st atus as being "not automatic", in paragraph 6.461 
of the Panel Reports, is a reference both to th e direct connection between the DJAI procedure and 
the right to import and to the discretionary cont rol exercised by Argentine agencies in deciding 
when and subject to what conditions "exit" status can be attained. 
For these reasons, the Appellate Body disagreed wi th Argentina's understanding of the Panel's use 
of the term "automatic" in paragraph 6.461 of the Panel Reports, and found that the Panel did not 
err in considering that the fact that attaining "exit" status – and thus the right to import – is not 
"automatic" under the DJAI procedure is an elemen t supporting its finding that the DJAI procedure 
constitutes an import restriction. Accordingly, the Appellate Body rejected Argentina's request to 
reverse the Panel's finding. 
For all of the above reasons, the Appellate Body upheld the Panel's finding that the DJAI procedure 
is inconsistent with Article XI:1 of the GATT 1994. 
4.2  Appellate Body Reports, United States – Certain Country  of Origin Labelling (COOL) 
Requirements – Recourse to Article 21.5 of the DSU by Canada and Mexico , 
WT/DS384/AB/RW and WT/DS386/AB/RW 
These appeals arose from two disputes in which Canada (DS384) and Mexico (DS386) challenged 
the amended Country of Origin Labelling (C OOL) measure (the "amended COOL measure") 
adopted by the United States in order to comply  with the recommendations and rulings of the DSB 
in United States – Certain Country of Origin Labelling (COOL) Requirements . The amended COOL 
measure requires that certain meat products sold by retailers in the United States be labelled with 
information concerning their country of origin. Such meat must bear a label indicating the countries where the cattle and hogs from which the meat was derived were born, raised, and 
slaughtered. 
Before the Article 21.5 Panel, Canada and Mexico claimed that the amended COOL measure failed 
to implement the DSB's recommendations and rulings, and that it is inconsistent with: (i) Article 2.1 of the TBT Agreement and Articl e III:4 of the GATT 1994, because it accords 
livestock imported from Canada and Mexico treatment less favourable than that accorded to 
US livestock; (ii) Article 2.2 of the TBT Agreement, because it is more trade restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create; 
and (iii) Article XXIII:1(b) of the GATT 1994, becaus e it nullifies or impairs benefits accruing to 
Canada and Mexico in respect of import s of livestock into the United States. 
The Article 21.5 Panel found that the amended COOL measure is inconsistent with Article 2.1 of 
the TBT Agreement, because it entailed an increased detrimental impact on imported livestock that 
did not stem exclusively from legitimate regulato ry distinctions. In particular, the Article 21.5 
Panel found that increased segregation and reco rd-keeping requirements prescribed by the 
amended COOL measures raise the incentive for pr ivate actors to choose domestic over imported 
livestock and that this augments the detrimental impact on competitive opportunities for imported 
livestock, as compared to the detrimental impact  entailed by the original COOL measure. The 
Article 21.5 Panel further concluded that the complainants had not made out a prima facie  case WT/AB/26 
 
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  that the amended COOL measure is more trade restrictive than necessary within the meaning of 
Article 2.2 of the TBT Agreement. Furthermore,  the Article 21.5 Panel found that the amended 
COOL measure is inconsistent with Article III:4 of the GATT 1994, because it accords to Canadian and Mexican livestock less favourable treatment th an to US livestock. Th is finding was largely 
based on its finding of detrimental impact und er Article 2.1 of the TBT Agreement and the 
consideration that any measure causing detrimental impact under Article 2.1 will also cause treatment "less favourable" within the meaning of  Article III:4 of the GA TT 1994. The Article 21.5 
Panel exercised judicial economy with respect to the complainants' non-violation claims under 
Article XXIII:1(b) of the GATT 1994. It noted that compliance by the United States with the Article 21.5 Panel's findings of violation of Article III:4 would require eliminating the detrimental impact on competitive opportunities for Canadian and Mexican livestock and would therefore 
restore effective equality between foreign and domestic products, and remove the basis for 
nullification or impairment under Article XXIII:1(b). 
On appeal, each participant challenged certain elem ents of the Panel's analysis and findings under 
Article 2.1 of the TBT Agreement. 
4.2.1  Article 2.1 of the TBT Agreement 4.2.1.1  Issues appealed by the United States 
The United States appealed the Panel's conclusion  that the amended COOL measure is inconsistent 
with Article 2.1 of the TBT Agreement because its detrimental impact on imported livestock does 
not stem exclusively from legitimate regulatory distinctions. This conclusion, according to the United States, rested on three intermediate findings, namely: (i) that the amended COOL measure 
entails an increased recordkeeping burden for producers of livestock; (ii) that Labels B and C 
convey potentially inaccurate information; and (iii) that the amended COOL measure continues to exempt a large proportion of muscle cuts from its scope.  
4.2.1.1.1  The recordkeeping burden entailed by the amended COOL measure 
The United States claimed that the Panel's finding that the amended COOL measure entails an 
increased recordkeeping burden did not support the Panel's conclusion that the detrimental impact 
of that measure on imported livestock does no t stem exclusively from legitimate regulatory 
distinctions. This claim rested on two main grounds.  First, the United States argued that the Panel 
erred in relying on its finding that the amended COOL measure entails an increased recordkeeping burden as an independent basis for concluding that the detrimental impact of that measure does 
not stem exclusively from legitimate regulatory di stinctions. Second, the United States argued that 
the Panel's finding that the amended COOL meas ure entails an increased recordkeeping burden 
was flawed to the extent that it was based on incorrect analyses of the impact of 
point-of-production labelling and the elimination of the country order flexibility on recordkeeping.  
The Appellate Body began its analysis by addressi ng the United States' claim that the Panel erred 
in its assessment of the impact of point-of-produ ction labelling and the elimination of the country 
order flexibility on recordkeeping. As regards the Panel's analysis of the impact of point-of-
production labelling, the United States alleged that the Panel erred by basing that analysis on incorrect hypothetical transactions involving trade in live animals between Canada and Mexico. At the outset, the Appellate Body set forth general considerations concerning whether, and to what 
extent, a panel may rely on hypothetical scenarios that are not reflective of actual patterns of 
trade for the purposes of an analysis under Arti cle 2.1 of the TBT Agreement. The Appellate Body 
considered that, because Article 2.1 is concerned with competitive opportunities for like imported 
products, a panel's analysis under that provision must be grounded in an assessment of the 
technical regulation at issue in scenarios under which competitive opportunities may arise, notwithstanding that they may not be currently reflec tive of actual patterns of trade. In any event, 
the Appellate Body did not agree with the United States' assertion that the Panel's assessment of 
the impact of point-of-production labelling was based  on "incorrect hypothetical" scenarios 
involving the trade of live animals between Canada and Mexico. In this regard, the Appellate Body noted that the Panel had included in its analysis scenarios in which muscle cuts from different 
animals – some born in Mexico, some born in Cana da, and both slaughtered in the United States – 
would be packaged together. Noting that this scenario does not involve the trade of live animals between Canada and Mexico, the Appellate Body observed that the Panel found that, under the 
original COOL measure, such muscle cuts could be packaged with a single label, while, under the WT/AB/26 
 
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  amended COOL measure, they would need to carry  distinct labels to reflect their different 
countries of origin. The Appellate Body was of the view that the United States had not established that this scenario is inconceivable, or constitutes an "incorrect" hypothetical scenario. Accordingly, the Appellate Body considered that the Panel did not err under Article 2.1 by assessing the impact 
of point-of-production labelling in scenarios that are not representative of actual, or the most 
common, scenarios in which the products at issue are traded among the parties to the disputes. 
Next, the Appellate Body considered the United States' claim that the Panel erred in finding that 
the removal of the country order flexibility incr eases the recordkeeping burden entailed by the 
original COOL measure. Under the original COOL measure, the country order flexibility permitted non-commingled Category B and Category C muscle cuts to bear labels that could look the same in practice – i.e. Label B and Label C could both read "Product of Canada, U.S." By contrast, those 
same muscle cuts are labelled differently under the amended COOL measure – i.e. Category B 
muscle cuts are labelled "Born in Canada, Raised and Slaughtered in the U.S.", while Category C 
muscle cuts are labelled "Born and Raised in Cana da, Slaughtered in the U.S." The United States 
argued, however, that the fact that there are now two labels – where before there was one – does 
not mean that the recordkeeping burden has increased under the amended COOL measure because, according to the United States, "different categories of muscle cuts already had different 
records" under the original COOL measure.
25  
The Appellate Body considered that the United States' assertion that removing the country order 
flexibility "does not alter the recordkeeping burden " entailed by the original COOL measure was, 
necessarily, premised on the proposition that the original COOL measure required that records be 
maintained to substantiate specific production-step information concerning the livestock from 
which muscle cuts derived. Yet, as the Panel explained, the original COOL measure stipulated that "the origin declaration [for Category B, Category C, and all commingled muscles cuts] may include 
more specific information related to production steps provided records to substantiate the claims 
are maintained ." Thus, the Appellate Body considered that, because the provision of specific 
information on production steps could voluntarily  be provided under the original COOL measure 
only if "records to substantiate the claims are maintained", origin claims for non-commingled 
Category B and Category C muscle cuts carrying the same label as a result of the country order flexibility – e.g. "Product of Canada, U.S." – could be substantiated by records demonstrating that the livestock from which these muscle cuts derived were born outside the United States, in the 
country appearing on the label. By contrast, the provision of production step information for such 
muscle cuts is now mandatory under the amended COOL measure. This, in turn, entails corresponding augmentation of the records to be kept by livestock and meat producers to 
substantiate the origin claims made on the mandatory retail labels for muscle cuts deriving from 
US-slaughtered livestock, including non-commingled Category B and Category C muscle cuts. In the light of these considerations, the Appellate Body was not persuaded by the United States' 
contention that removing the country order flex ibility has not altered the recordkeeping burden 
that was entailed by the original COOL measure.  Accordingly, the Appella te Body found that the 
Panel did not err in its analysis of the impact of the elimination of the country order flexibility on recordkeeping. 
                                               
25 Under the original COOL measure, separate labelling requirements applied to muscle cuts of meat and 
to ground meat. Four labelling options were available fo r muscle cuts: (i) Label A a pplied to meat derived from 
animals exclusively born, raised, and slaughtered in the United States, with no imported element, and permitted listing only the United States as the countr y of origin; (ii) Label B applied to meat derived from 
animals that had been raised and slaughtered in the United States, but that were born outside the United States, and listed both the foreign country and the United States as countries of origin; (iii) Label C referred to 
meat derived from animals imported in to the United States for immediate slaughter, and prescribed listing the 
foreign countries of origin including the United States, bu t not the United States as the first country of origin; 
(iv) Label D referred to meat derived from livestock not born, raised, or slaughtered in the United States, and 
listed the foreign country of origin. A fifth Label E applied to ground meat, and prescribed that the origin of the meat that is contained or may reasonably be containe d in the meat product be id entified on the label.  
The amended COOL measure requires that Labels A, B, and C for musc le cuts from animals slaughtered 
in the United States indicate the country where each production step – birth, raising, and slaughter – took place (point-to-point production labelling). For Label D, the amen ded COOL measure preserves the 
requirement to indicate the country of origin on the label as declared to the customs authorities, and adds a voluntary option to provide more specific informatio n about where the production steps took place. The 
requirements of Label E for ground meat have not changed compared to the original COOL measure. WT/AB/26 
 
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  The Appellate Body next considered the United States' claim that the Panel erred in relying on its 
finding that the amended COOL measure entails  an increased recordkeeping burden as an 
independent basis for concluding that the detrimental impact of that measure on imported livestock does not stem exclusively from legitimate regulatory distinctions.  
The Appellate Body noted that, at the outset of its analysis, the Panel had expressly articulated an 
analytical framework for its assessment under Article 2.1, pursuant to which the recordkeeping burden entailed by the amended COOL measure would serve as a comparator against which to 
compare the origin information that is ultimately conveyed to consumers on the mandatory labels 
for muscle cuts of meat. The Appellate Body considered that this approach, as articulated by the Panel, comports with the approach of the Appe llate Body in the original proceedings. After 
reviewing the Panel's application of this analytical framework, the Appellate Body considered that 
the Panel's conclusion that the detrimental impa ct of the amended COOL measure does not stem 
exclusively from legitimate regulatory distinctions was based on a comparative analysis of three key determinants of the informational "disconnect" that the Appellate Body had identified in the 
original disputes in relation to the original COOL measure: (i) the informational requirements 
imposed on upstream producers; (ii) the nature and accuracy of the information conveyed on the 
labels; and (iii) the proportion of the collected information that is exempted from being 
communicated to consumers.  
The Appellate Body agreed with the United States ' assertion that, in order to conclude that the 
detrimental impact of the amended COOL measur e does not stem exclusively from legitimate 
regulatory distinctions, origin information required to be collected under that measure must be so  
disproportionate to the information provided to consumers on labels that the collection of the 
information cannot be explained by the need to provide consumers with information regarding where livestock were born, raised, and slaughtered. In responding to the United States' assertion 
that the Panel had failed to make such a determ ination, the Appellate Body noted several discrete 
findings made by the Panel within its overall assessment of whether the detrimental impact of the amended COOL measure on imported livestock st ems exclusively from legitimate regulatory 
distinctions.  
First, the Panel acknowledged that the amende d COOL measure had increased the amount of 
information conveyed to consumers on the mandatory labels but, importantly, that it had also increased the recordkeeping burden on upstream producers in order to do so. Second, the Panel 
noted that the revised labels of the amende d COOL measure introduce the potential for 
informational inaccuracy in respect of the identification of where animals were "raised". Third, in connection with the exemptions from the scope of the COOL requirements, the Panel reasoned 
that, due to the increased recordkeeping burden  under the amended COOL measure, even more 
"information regarding the origin of all livestock w ill have to be identified, tracked, and transmitted 
through the chain of production by upstream producers in accordance with the recordkeeping 
requirements … even though 'a considerable prop ortion' of the beef and pork derived from that 
livestock will ultimately be exempt from the COOL  requirements and therefore carry no COOL label 
at all." For the Appellate Body, these discrete findings support the conclusion that the recordkeeping and verification requirements  of the amended COOL measure impose a 
disproportionate burden on producers and processo rs of livestock that cannot be explained by the 
need to provide consumers with information re garding where livestock were born, raised, and 
slaughtered. On that basis, the Appellate Body co nsidered that the detrimental impact on imported 
livestock arising from these same recordkeeping and verification requirements does not stem 
exclusively from legitimate regulatory distinctions. 
In the light of these considerations, the Appellate Body concluded that the Panel's finding that the 
amended COOL measure entails an increased recordkeeping burden did not serve as an 
"independent basis" for the Panel's conclusion that the detrimental impact of that measure does not stem exclusively from legitimate regulatory distinctions. Moreover, the Appellate Body did not consider, as the United States alleged, that th e Panel "failed to put the issue of recordkeeping 
within the proper analysis, which involves a comparison of the burdens of recordkeeping and the 
provision of information through labels." Accordingly, the Appellate Body found that the Panel did not err in its consideration of the increased re cordkeeping burden entailed by the amended COOL 
measure within its analysis of whether the detrimental impact of that measure on imported 
livestock stems exclusively from legitimate regulatory distinctions. WT/AB/26 
 
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  4.2.1.1.2  The accuracy of the labels prescribed by the amended COOL measure 
On appeal, the United States raised two claims of error in relation to the Panel's finding that 
Labels B and C, as prescribed by the amended COOL measure, convey potentially inaccurate origin information. First, the United States contended that the Panel erred by basing this finding on 
"incorrect hypotheticals" without regard for actual trade in livestock among the three parties to 
these disputes. Second, the United States alleged that the Panel erred in considering that its finding that Labels B and C are potentially inaccurate supports a conclusion that the detrimental 
impact of the amended COOL measure does not stem exclusively from legitimate regulatory 
distinctions. 
As regards the United States' claim that the Panel erred by basing its finding that Labels B and C 
are potentially inaccurate on "incorrect hypothetical livestock transactions", the Appellate Body 
first addressed the United States' argument that because the claim before the Panel was one of 
alleged de facto  discrimination under Article 2.1 of the TBT Agreement, the Panel was precluded 
from examining the accuracy of labels under the amended COOL measure in "hypothetical[] 
[scenarios] that do not reflect" actual trade in livestock between the parties to these disputes. In 
addressing this argument, the Appellate Body reca lled its earlier finding that a panel's analysis 
under Article 2.1 must be grounded in an assessment of the technical regulation at issue in 
scenarios under which competitive opportunities may arise, notwithstanding that they may not be 
currently reflective of actual patterns of trade. Ac cordingly, the Appellate Body considered that, in 
assessing claims of de facto  discrimination under Article 2.1, a panel's analysis is not confined to 
assessing the effect of a measure based on scenarios that are representative of current patterns of 
trade.  
Noting that, in any event, the United States had argued that the Panel based its finding that 
Labels B and C are potentially inaccurate on incorrect  hypotheticals, the Appellate Body observed 
that, in relation to Label B, the Panel's findings concerning the accuracy of that label were based 
on unchallenged evidence concerning where feeder cattle were actually "raised", and what must be 
ultimately indicated on Label B according to the terms of the amended COOL measure. In 
particular, the Panel had found that feeder cattle imported into the United States may have spent 
up to 68% of their lifespan outside the United States, yet, the resulting meat products could be labelled to indicate that the animals from which the meat products derived were raised only in the United States. The Appellate Body, therefore, reject ed the contention of the United States that the 
Panel's finding that Label B potentially conveys inaccurate information was based on incorrect 
hypothetical livestock transactions. 
As regards Label C, the Appellate Body noted that, although the Panel found that the design of the 
rules pertaining to this label may allow omission of actual countries of raising, the Panel had 
qualified this finding by acknowledging that, "[i]n its actual application to traded livestock … Label C does not appear likely to convey mislea ding information about the country where animals 
imported for immediate slaughter are raised, given that these appear to be most commonly born 
and raised in the country of export." Thus, the Appellate Body found persuasive Mexico's contention that the Panel did not rely on unlikely hypothetical scenarios in determining that there is a potential for label inaccuracy under the amen ded COOL measure, but, instead, that the Panel 
"considered all of the potential scenarios" and "discounted or disregarded those that were unlikely 
to occur in actual practice." Accordingly, the Appe llate Body disagreed with the United States that 
the Panel's finding that the amended COOL measure entails a potential for label inaccuracy was 
based on "incorrect hypotheticals." The Appellate Body, thus, found that the Panel did not err in its 
assessment of the accuracy of Labels B and C as  prescribed by the amended COOL measure.  
The Appellate Body next considered the United States' claim that the Panel's finding that Labels B 
and C are potentially inaccurate does not support the Panel's conclusion that the detrimental 
impact of that measure on imported livestock does not stem exclusively from legitimate regulatory distinctions. The United States argued in this regard that the Panel was required to assess the potential for label inaccuracy under the amended COOL measure in relation to the recordkeeping 
burden entailed by that measure by determinin g whether a "disconnect" exists between, on the 
one hand, the origin information required to be collected by producers of livestock and, on the other hand, the origin information that is ultimately conveyed to consumers on the mandatory 
labels. According to the United States, the Panel erred by failing to make this determination. WT/AB/26 
 
- 32 - 
 
  In considering this claim of the United States, the Appellate Body recalled that it had considered 
earlier that the Panel's conclusion that the detr imental impact of the amended COOL measure does 
not stem exclusively from legitimate regulatory distinctions was based on a comparative analysis of three key determinants of the informational "disconnect" that the Appellate Body had identified 
in the original disputes in relation to the original COOL measure. In addition, it had considered that 
several elements of the Panel's analysis, and discr ete findings made by the Panel in relation to 
these three determinants, support the conclusion that the recordkeeping and verification 
requirements of the amended COOL measure impose  a disproportionate burden on producers and 
processors of livestock that cannot be explained by the need to provide origin information to 
consumers. Accordingly, the Appe llate Body was not persuaded by the United States' contention 
that the Panel failed to address the question of whether there is a "disconnect" between, on the 
one hand, the information required to be collected  by producers and processors of livestock and, 
on the other hand, the information ultimately conv eyed to consumers on the labels prescribed by 
the amended COOL measure. Accordingly, the Appe llate Body found that the Panel did not err in 
its consideration of the potential for label inaccuracy under the amended COOL measure within its 
analysis of whether the detrimental impact of that measure on imported livestock stems exclusively from legitimate regulatory distinctions. 
4.2.1.1.3  The exemptions prescribed by the amended COOL measure 
On appeal, the United States put forward three ma in claims of error in relation to the Panel's 
finding that the exemptions prescribed by the amended COOL measure support a conclusion that 
the detrimental impact of that measure on imported livestock does not stem exclusively from 
legitimate regulatory distinctions. First, the United States claimed that the Panel erred in finding 
that the exemptions are relevant for the analys is of whether the detrimental impact of the 
amended COOL measure stems exclusively from legitimate regulatory distinctions. Second, the 
United States claimed that, "aside from the fact that the exemptions are not relevant", the Panel 
erred by failing to take into account the following considerations in its assessment: (i) that the exemptions apply equally to meat derived from imported and domestic livestock and are, 
therefore, even-handed in their de sign and application; (ii) the "legitimate desire of Members to 
adjust the scope of their technical regulations" to take account of cost considerations; and (iii) that, in the light of the "enhanced accu racy" of the labels prescribed by the amended 
COOL measure, the recordkeeping burden entailed by that measure can now "be explained by the 
need to provide origin information to consumers". Third, the United States claimed that the Panel 
failed to evaluate the operation of the exemptions  within the US market and, therefore, that the 
Panel erred in concluding that these exemptions support a conclusion that the detrimental impact 
of the amended COOL measure does not stem exclus ively from legitimate regulatory distinctions.  
As regards the United States' claim that the Panel erred in finding that the exemptions prescribed 
by the amended COOL measure are relevant for the analysis of whether the detrimental impact of 
that measure stems exclusively from legitimate  regulatory distinctions, the Appellate Body 
considered whether elements of a technical regulation that have not been identified as relevant 
regulatory distinctions causing detrimental impact on "like" imported products can be examined for the purpose of determining whether such detrimen tal impact stems exclusively from legitimate 
regulatory distinctions. In addressing this issue, the Appellate Body recalled that, if a panel finds 
that a technical regulation has a de facto  detrimental impact on competitive opportunities for like 
imported products, the focus of the inquiry shifts to whether such detrimental impact stems 
exclusively from legitimate regulatory distinctions. The Appellate Body explained that this inquiry 
must focus on those regulatory distinctions that account for the detrimental impact on "like" imported products, and that the legitimacy of su ch regulatory distinctions, for the purposes of 
Article 2.1, is a function of whether they are designed and applied in an even-handed manner. The 
Appellate Body emphasized that, while the as sessment of even-handedness focusses on the 
regulatory distinction(s) causing the detrimental impact on imported products, other elements of the technical regulation are relevant for that assessment to the extent that they are probative of 
whether such detrimental impact stems exclusively from legitimate regulatory distinctions. Indeed, 
as the Appellate Body explained in the original di sputes, a panel, in assessing even-handedness for 
the purposes of Article 2.1, must "carefully scrutin ize the particular circumstances of the case, that 
is, the design, architecture, revealing structure, operation, and application of the technical 
regulation at issue". Accordingly, the Appellate Body  found that the Panel did not err in finding that 
the exemptions prescribed by th e amended COOL measure are relevant for the analysis of whether 
the detrimental impact of that measure on imported livestock stems exclusively from legitimate 
regulatory distinctions. WT/AB/26 
 
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  The Appellate Body then turned to address the United States' allegation that, even if the 
exemptions are relevant to the analysis under Article 2.1, the Panel erred by not taking into account certain considerations in this analysis. First, the Appellate Body considered the United States' contention that the Panel failed to take into account that the exemptions apply 
equally to meat derived from imported and domestic livestock and are, therefore, even-handed in 
their design and application. In the Appellate Body's view, the Panel was not required to assess the even-handedness of the exemptions under  the amended COOL measure because these 
exemptions are not relevant regulatory distinctio ns under that measure. Instead, the exemptions 
form part of the overall architecture of the am ended COOL measure that the Panel scrutinized in 
order to assess whether the relevant regulatory distinctions at issue – i.e. the distinctions between the three production steps, as well as the mandatory labels to be affixed to muscle cuts of beef 
and pork – are designed and applied in an even -handed manner. The Appellate Body noted that 
the Panel ultimately found that the exemptions, as an integral part of the "overall architecture" of the amended COOL measure, were "of central importance" to its overall analysis under Article 2.1 
because between 57.7% and 66.7% of beef consum ed in the United States, and between 83.5% 
and 84.1% of pork muscle cuts, will convey no consumer information on origin despite imposing an upstream recordkeeping burden on producers and processors that has a detrimental impact on 
competitive opportunities for imported livestock. The Appellate Body considered that, for this 
reason, the exemptions prescribed by the amen ded COOL measure are probative of whether the 
detrimental impact of that measure on imported livestock stems exclusively from legitimate regulatory distinctions. Accordingly, the Appellate  Body found that the Panel did not err by not 
attributing significance to the fact that the exemptions under the amended COOL measure apply 
equally to meat derived from imported and domestic livestock. 
The Appellate Body considered next the United States' claim that, in concluding that the 
exemptions under the amended COOL measure suppo rt a conclusion that the detrimental impact 
of that measure on imported livestock reflects discr imination, the Panel erred by failing to take into 
account the "legitimate desire of Members to adjust the scope of their technical regulations" to 
take account of cost considerations. The Appellate Body recalled that, in US – Clove Cigarettes , it 
had considered that "[n]othing in Article 2.1 pr events a Member from seeking to minimize the 
potential costs arising from technical regulations, provided that the technical regulation at issue does not overtly or covertly discriminate against imports." The Appellate Body, therefore, saw no 
error in the Panel's finding that cost considerations do not constitute a "supervening justification 
for discriminatory measures". In particular, the Appellate Body did not consider that the cost savings enjoyed by US entities that are exempt from the COOL requirements mitigate the Panel's 
finding that, as a result of the exemptions, a large proportion of beef and pork muscle cuts 
consumed in the United States will convey no consumer information on origin, despite imposing an upstream recordkeeping burden that has a detrimental impact on competitive opportunities for 
imported livestock. Accordingly, the Appellate Body found that the Panel did not err in considering 
that the cost considerations, which allegedly ju stify the existence of the exemptions, do not 
constitute a supervening justification for discriminatory measures. 
Next, the Appellate Body considered the United States' claim that, in determining that the 
exemptions constitute evidence that the detrim ental impact of the amended COOL measure on 
imported livestock does not stem exclusively from legitimate regulatory distinctions, the Panel erred by failing to take into account that, in th e light of the "enhanced accuracy" of the labels 
prescribed by the amended COOL measure, the recordkeeping burden entailed by that measure 
can now be explained by the need to provide origin information to consumers. The Appellate Body recalled that, in connection with a separate claim put forward by the United States under 
Article 2.1, it had found that several discrete findings made by the Panel support the conclusion 
that the recordkeeping and verification requir ements of the amended COOL measure impose a 
disproportionate burden on producers and proc essors of imported livestock that cannot be 
explained by the need to provide origin informat ion to consumers. The Appellate Body, therefore, 
disagreed with the United States that the Panel failed to examine whether the nature and scope of 
the exemptions establish a "disconnect" between, on the one hand, the amount of information 
collected by upstream producers and, on the other hand, the amount of information conveyed to 
consumers that is so disproportionate as to suppo rt the conclusion that the detrimental impact of 
the amended COOL measure reflects discrimination in violation of Article 2.1. Accordingly, the 
Appellate Body found that the Panel did not err in considering that the exemptions prescribed by 
the amended COOL measure support a conclusion th at the detrimental impact of that measure on 
imported livestock does not stem exclusively from legitimate regulatory distinctions.  WT/AB/26 
 
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  The Appellate Body then turned to examine the Unit ed States' last claim relating to the exemptions 
from the amended COOL measure. On appeal, the Un ited States claimed that, in concluding that 
the exemptions under the amended COOL measur e support a conclusion that the detrimental 
impact of that measure reflects discrimination, the Panel erred by failing to evaluate the operation 
of the exemptions in the US market. The Appellate  Body noted that, in considering the exemptions 
as evidence that the detrimental impact of th e amended COOL measure on imported livestock 
does not stem exclusively from legitimate regulatory distinctions, the Panel stated that it had 
"no evidence" before it that called into question the original panel's finding that "the ultimate 
disposition of a meat product is often not known at any particular stage of the production chain." Noting the United States' assertion on appeal that it was for Canada and Mexico to adduce evidence sufficient to establish whether, and to what extent, the ultimate disposition of a meat 
product is known at any particular stage of the production chain, the Appellate Body considered 
that, having not been presented with evidence that would affect the findings of the original panel concerning the operation of the exemptions in the US market, it was appropriate for the Panel to 
have relied on those findings. Accordingly, the Appellate Body found that the Panel did not err by 
relying on the original panel's findings and not evaluating the operation of the exemptions under the amended COOL measure in the US market. 
4.2.1.2  Appeals of Canada and Mexico under Article 2.1 of the TBT Agreement  
Having considered the claims put forward by the United States under Article 2.1 of the 
TBT Agreement, the Appellate Body turned to consider the claims of Canada and Mexico under the same provision. Although Canada and Mexico did not appeal the Panel's ultimate conclusion that 
the amended COOL measure is inconsistent with Article 2.1, they did take issue with the Panel's 
assessment of certain elements of the amended COOL  measure in reaching its conclusion that the 
detrimental impact of that measure on imported livestock does not stem exclusively from 
legitimate regulatory distinctions. Canada claimed that the Panel failed to assess appropriately the 
relevance of Labels D and E, as well as the amended COOL measure's prohibition of a trace-back system, for the analysis of whether the detrimenta l impact of that measure on imported livestock 
stems exclusively from legitimate regulatory distinctions. Mexico put forward a similar claim, but 
limited its appeal to the Panel's assessment of th e relevance of Label E for the purposes of its 
analysis under Article 2.1.  
As regards Label D, Canada argued that the Panel failed to recognize that the requirements for 
that label, together with the informational shortcomings identified by the Panel with respect to 
Labels B and C, contribute to a labelling regime in which the only information that can be relied on as invariably accurate is the information conveyed on Label A – i.e. origin information in respect of 
livestock that were born, raised, and slaughtered exclusively in the United States. This 
discrepancy, according to Canada, exposes the arbitrary and unjustifiable character of the discrimination against Canadian livestock.  
In examining Canada's contention, the Appellate Body considered that the accuracy of the muscle 
cut labels prescribed by the amended COOL measure is a relevant factor to the extent that it demonstrates that the recordkeeping and verification requirements of that measure impose a disproportionate burden on upstream producers an d processors in comparison with the level of 
information conveyed to consumers through the mandatory labelling requirements. For the 
purposes of assessing Canada's claim as regards La bel D, the Appellate Body considered it useful 
to juxtapose, on the one hand, the requirements for Labels B and C and the exemptions from the 
coverage of the COOL requirements with, on the other hand, the requirements for Label D. In the 
Appellate Body's view, the informational shortcomings of Labels B and C, as well as the exemptions from the coverage of the COOL requir ements, are closely connected to the source of 
the detrimental impact on imported livestock in  these disputes, namely, the recordkeeping and 
verification requirements for US-slaughtered livesto ck that create an incentive for US producers to 
process exclusively domestic livestock. In particular, the detailed information required to be tracked and transmitted by upstream producers may not be conveyed to consumers as a result of 
the informational shortcomings of Labels B and C with regard to the countries where 
US-slaughtered livestock were raised, and of th e exemptions from the coverage of the COOL 
requirements. For this reason, the detrimental impact of the amended COOL measure on imported 
livestock that is caused by the same recordkeeping and verification requirements under the 
amended COOL measure cannot be explained by the need to provide origin information to 
consumers. WT/AB/26 
 
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  The Appellate Body noted that, by contrast, origin, for the purposes of Category D muscle cuts of 
meat, is based on the rules of substantial transformation and, in practice, is a function of where the livestock from which such muscle cuts de rive were slaughtered. Accordingly, the 
Appellate Body considered that the requirements for Label D – as compared to the requirements 
for Labels B and C, as well as the exemptions – do not have a sufficient nexus with the source of 
the detrimental impact on the imported products at issue in these disputes, namely, the recordkeeping and verification requirements that apply to US-slaughtered livestock and muscle 
cuts of meat deriving therefrom. Thus, th e Appellate Body was not persuaded that the 
requirements for Label D are probative of whethe r the detrimental impact of the amended COOL 
measure on imported livestock stems exclusively from legitimate regulatory distinctions. Accordingly, the Appellate Body found that the Pa nel did not err in finding that the requirements 
for Label D are not compelling evidence of arbitrary or unjustifiable discrimination in violation of 
Article 2.1. 
The Appellate Body then turned to assess the claims of Canada and Mexico that the Panel 
committed legal error in its assessment of the relevance of Label E for its analysis under 
Article 2.1, as well as Canada's discrete claim that the Panel disregarded certain evidence that Canada had placed before it, and thereby acted inconsistently with its duty under Article 11 of 
the DSU. The Appellate Body rejected the claims of Canada and Mexico regarding the requirements 
for Label E – applicable to ground meat – on similar grounds as those on which it rejected Canada's claim regarding the requirements for Label D. In particular, the Appellate Body was not persuaded that the requirements applicable to Category E ground meat have a sufficient 
connection to the recordkeeping and verification re quirements that cause a detrimental impact on 
imported livestock "in the context of the muscle cut labels". Nor do they have a sufficient connection to the relevant regulatory distinctions at issue, i.e. the distinction between the three 
production steps, as well as the mandatory labels to be affixed to muscle cuts of beef and pork. 
The Appellate Body noted in this regard that th e original panel had found that the flexibility 
provided by the 60-day "inventory allowance" fo r the labelling of Category E ground meat was 
available not only for meat grinders "but for market participants at every stage of [ground] meat 
supply and distribution". Thus, contrary to what Canada and Mexico had suggested on appeal, the Appellate Body was not persuaded that Label E contributes, as the exemptions prescribed by the amended COOL measure do, to the lack of co rrespondence between, on the one hand, the 
recordkeeping and verification requirements of  the amended COOL measure and, on the other 
hand, the limited consumer information conveyed through the retail labelling requirements for muscle cuts of meat. Accordingly, the Appellate Body agreed with the Panel that it was not clear 
that the treatment of ground meat "is sufficiently connected to the relevant regulatory distinctions 
to justify incorporation into [the Panel's] broad assessment" of the design and operation of the amended COOL measure. The Appellate Body thus found that the Panel did not err in finding that 
the requirements for Label E do not evidence the amended COOL measure's inconsistency with 
Article 2.1 of the TBT Agreement. 
Turning to Canada's claim under Article 11 of the DSU in connection with the Panel's assessment 
of the requirements for Label E, the Appellate Body considered that Canada's claim under 
Article 11 of the DSU implicated issues that it had already considered in examining the 
requirements for Label E and, in particular, whethe r they are probative of the inconsistency of the 
amended COOL measure with Article 2.1 of the TB T Agreement. Thus, the Appellate Body declined 
to examine further Canada's claim under Article 11 of the DSU. 
Finally, the Appellate Body addressed Canada's clai m that the Panel erred by failing to assess the 
relevance of the prohibition of a trace-back system in its analysis of whether the detrimental 
impact of the amended COOL measure on imported  livestock stems exclusively from legitimate 
regulatory distinctions. Canada argued that, by pr ohibiting a trace-back system that, in Canada's 
view, would not cause a detrimental impact on im ported livestock, the United States made an 
explicit choice in favour of the recordkeeping requirements under the amended COOL measure – 
i.e. the source of the detrimental impact on imported livestock in these disputes. For Canada, this 
explicit choice demonstrates that the detrimental impact of the amended COOL measure on imported livestock does not stem exclusively from legitimate regulatory distinctions. In considering 
Canada's claim, the Appellate Body recalled that Article 2.1 does not, per se , prohibit technical 
regulations that cause a detrimental impact on like imported products. Therefore, the inquiry into whether the detrimental impact stems exclusively from legitimate regulatory distinctions is not 
answered by comparing the measure at issue an d its associated detrimental impact with an 
alternative measure that, allegedly, would not cause a detrimental impact on the imported WT/AB/26 
 
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  products at issue. Thus, the Appellate Body cons idered that the trace-back prohibition under the 
amended COOL measure is ultimately not probativ e of whether that measure's detrimental impact 
on imported livestock stems exclusively from legitimate regulatory distinctions. The Appellate Body explained in this connection that, the relevant question, for the purposes of Article 2.1 in these 
disputes, is whether the detrimental impact on imported products caused by the recordkeeping 
and verification requirements of the amended COOL measure stems exclusively from legitimate regulatory distinctions. The question is not, as Canada suggested, whether such detrimental 
impact can be avoided by utilizing a trace-back sy stem that could be designed in a manner that 
avoids a detrimental impact on imported products . Accordingly, the Appellate Body found that the 
Panel did not err by considering the amended COOL  measure's prohibition of a trace-back system 
as not relevant for the analysis of whether the detrimental impact of that measure on imported 
livestock stems exclusively from legitimate regulatory distinctions. 
4.2.2  Article 2.2 of the TBT Agreement Canada and Mexico requested the Appellate Body to reverse the Panel's finding that they failed to 
make a prima facie  case that the amended COOL measure is inconsistent with Article 2.2 of the 
TBT Agreement, and to complete the legal analysis  in respect of their first and second proposed 
alternative measures. In this regard, Canada and Mexico claimed that the Panel made a series of 
errors of interpretation and application, and failed  to make, in respect of certain factual findings, 
an objective assessment of the matter as required under Article 11 of the DSU. Canada and Mexico also requested the Appellate Body to find that the Panel erred in the burden of proof it applied in 
respect of the complainants' third and fourth proposed alternative measures, but they did not 
request completion of the legal analysis with respect to those proposed alternative measures. 
The United States also made a conditional appeal in respect of Article 2.2 of the TBT Agreement, in 
the event that Canada or Mexico appealed the Panel's findings under that provision. Thus, in the 
light of Canada's and Mexico's appeals concerning Article 2.2, the United States' conditional appeal 
was activated and the Appellate Body was, therefore, called upon to review the United States' request to reverse the Panel's interpretation of the phrase "taking account of the risks 
non-fulfilment would create" in Article 2.2. 
First, the Appellate Body considered the claims of Canada and Mexico in respect of the sequence 
and order of analysis adopted by the Panel in assessing whether the amended COOL measure was 
"more trade-restrictive than necessary" under Article 2.2 of the TBT Agreement. 
The Appellate Body considered that such an assessment ultimately involves the holistic  weighing 
and balancing of all relevant factors. These factor s include the degree of contribution made by the 
measure to the legitimate objective at issue; the trade-restrictiveness of the measure; and the 
nature of the risks at issue, as well as the grav ity of the consequences that would arise from non-
fulfilment of the objective pursued by the Member through the measure. The Appellate Body also recalled that, in most cases, a comparison of the challenged measure and possible alternative 
measures should be undertaken. The Appellate Bo dy found that Article 2.2 does not explicitly 
prescribe, in rigid terms, the sequence and orde r of analysis in assessing whether the technical 
regulation at issue is "more trade-restrictive than necessary".  
That notwithstanding, a certain sequence and order of analysis may logically flow from the nature 
of the examination under Article 2.2. In that regard, the Appellate Body recalled jurisprudence in 
respect of Article XX of the GATT 1994 that a comprehensive analysis of the "necessity" of a measure is a sequential process that must logically begin with a first step, proceed through a 
number of additional steps, and yield a final conclusion. Nonetheless, the particular manner of 
sequencing the steps of analysis under Article 2.2 may be tailored to the specific claims, measures, facts, and arguments at issue in a given case. Panels are afforded a certain degree of latitude to 
tailor the sequence and order of analysis when assessing the relevant factors and in conducting 
the overall weighing and balancing under Article 2.2. Where different methodologies for the assessment of a relevant factor are available ba sed on the facts and arguments submitted by the 
parties, panels must adopt or develop a methodology that is suited to yielding a correct 
assessment of the relevant factor in the circumst ances of a given case. Therefore, an appellant 
challenging the sequence and order of analysis adopted by a panel must demonstrate why, by following a particular sequence, the panel committed an error in the specific circumstances of the 
case at hand. It is not sufficient for an appellant merely to claim that a panel erred by deviating 
from a certain sequence and order of analysis in the abstract.  WT/AB/26 
 
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  With those considerations in mind, the Appellate Body dealt first with Mexico's claim that, under 
the Panel's sequence and order of analysis, the "r elational" analysis component of the "necessity" 
test under Article 2.2 was erroneously narrowed to a determination of whether "exceptional 
circumstances" exist. The Appellate Body found that, in a context where both Canada and Mexico 
proposed alternative measures as part of discharging their prima facie  case under Article 2.2, and 
in the light of the holistic nature of the weighing  and balancing under that provision, the Panel did 
not err in conducting a "comparative" analysis of the proposed alternative measures. Turning to 
the points or stages at which to draw conclusions or engage in the weighing and balancing of 
different factors, the Appellate Body considered that Canada and Mexico had not demonstrated that, in the particular circumstances of this case, the sequence and order of analysis chosen by the Panel was outside the bounds of its latitude to tailor, to the case before it, its approach to the 
overall weighing and balancing required under Article 2.2.  
Second, the Appellate Body considered the request of Canada and Mexico to reverse the Panel's 
finding that the amended COOL measure makes a "considerable but necessarily partial" 
contribution to its objective. Canada claimed that the Panel erred under Article 2.2 of the 
TBT Agreement by failing to take into account La bels D and E in ascertaining the amended COOL 
measure's degree of contribution to its objective, and thereby also acted inconsistently with its 
duty under Article 11 of the DSU. Mexico's similar claim was limited to an allegation of error 
regarding the Panel's failure to take into account Label E in its analysis under Article 2.2. The Appellate Body found that, in principle, a technical regulation should be reviewed in its entirety in order to assess its degree of contribution to its objective. The Appellate Body further considered 
that a challenged technical regulation should be considered in its entirety even when  particular 
elements of the technical regulation are common to  both the technical regulation and the proposed 
alternative measures.  
According to the Appellate Body, this is because the manner in which such common elements 
interact with other elements of a challenged technical regulation or other elements of the proposed alternatives, respectively, may differ. Hence, even if such common elements are excluded from the 
assessment of the contribution of both the technical regulation and the proposed alternatives, this 
may distort the result of that assessment. In that context, since Labels D and E were part of the technical regulation at issue – namely, the amen ded COOL measure – and made a contribution to 
the objective of that measure, the Appellate Body found that those labels should have been taken 
into account in the assessment of both the amended COOL measure's degree of contribution, as 
well as the assessment of the degrees of contribu tion that would be achieved by the proposed 
alternative measures. Such an approach would have ensured both conceptual alignment between 
the respective degrees of contribution for the purposes of a comparison and ensuring that all 
relevant elements are properly taken into account in assessing the respective overall degrees of contribution. Accordingly, the Appellate Body found  that the Panel erred by excluding Labels D and 
E in reaching its conclusion that the amended COOL measure makes a "considerable but 
necessarily partial" degree of contribution to its objective. 
Third, the Appellate Body considered the request of the United States to find that the Panel erred 
in its interpretation of the phrase "taking account of the risks non-fulfilment would create" in 
Article 2.2 of the TBT Agreement. The United States  claimed that the Panel erred in contemplating, 
on the basis of this phrase, that the first or se cond proposed alternative measure put forward by 
Canada and Mexico could be found to make a contribution to the amended COOL measure's 
objective that is equivalent to that of the amended COOL measure itself, notwithstanding that 
these alternatives provide less information, or less accurate information, on origin to consumers. 
The Appellate Body considered that an assessment of whether a proposed alternative measure 
achieves an equivalent  degree of contribution to the relevant legitimate objective is essential for a 
panel to determine whether the technical regulation at issue restricts international trade beyond what is necessary to achieve the degree of contribution that it makes to the achievement of a legitimate objective. For the Appellate Body, the need for equivalence in the respective degrees of 
contribution between the challenged technical regulation and proposed alternative measures 
comports with the principle reflected in the sixt h preambular recital of the TBT Agreement that a 
Member shall not be prevented from pursuing a legitimate objective "at the levels it considers 
appropriate". However, the Appellate Body did not consider that a complainant must demonstrate 
that its proposed alternative measure achieves a degree of contribution identical  to that achieved 
by the challenged technical regulation in order for it to be found to achieve an equivalent  degree. 
Thus, the Appellate Body found that the Panel did not err in contemplating that an alternative WT/AB/26 
 
- 38 - 
 
  measure providing less specific or less accurate information, but having significantly wider product 
coverage, could qualify as making a degree of cont ribution "equivalent" to that of the amended 
COOL measure. 
Fourth, the Appellate Body considered the claims of Canada and Mexico that the Panel erred in 
failing to take into account certain factors in assessing "the risks non-fulfilment would create", 
namely, the " relative  importance" of the values or interests pursued by the amended COOL 
measure, as well as its design, structure, and ar chitecture. In respect of the "relative importance" 
of the values or interests pursued, the Appellate Bo dy turned first to the text of Article 2.2 of the 
TBT Agreement. The Appellate Body considered that the "risks" to be "tak[en] account of" under Article 2.2 are those that would be created by the "non-fulfilment" of the "legitimate objective" of 
the technical regulation at issue. The Appellate Bo dy found that the text of Article 2.2 does not 
provide a textual basis for taking into account the relative importance of the objective pursued, 
i.e. the importance of the objective pursued as compared to the importance of other objectives. 
Thus, the Appellate Body found that the Panel did not err by failing to take into account the 
relative importance of the values or interests pursued by the measure in assessing "the risks non-
fulfilment would create" under Article 2.2. Howeve r, the Appellate Body no ted that the importance 
of the objective to the Member implementing the technical regulation at issue  could inform the 
analysis under Article 2.2 in some capacity, to the extent that it is reflected in the level considered 
appropriate by the Member to pursue the relevant objective, or the actual degree of contribution 
made by the technical regulation to its objective.  
In respect of the "design, structure, and ar chitecture" of the amended COOL measure, the 
Appellate Body considered that these factors of a challenged technical regulation may reveal 
elements relevant for the analysis of the "ris ks non-fulfilment would create". However, the 
Appellate Body found that Canada and Mexico had failed to substantiate the connection between 
specific aspects of the design, architecture, and structure of the amended COOL measure, on the 
one hand, and the nature of the risks of the non-fulfilment of its objective or the gravity of the consequences arising from its non-fulfilment, on  the other hand. Thus, the Appellate Body found 
that the Panel did not err by failing to take into account the design, structure, and architecture of 
the amended COOL measure in assessing "the risks non-fulfilment would create" under Article 2.2 of the TBT Agreement. For the same reasons, the Appellate Body found that the Panel did not fail 
to "make an objective assessment of the matter befo re it" under Article 11 of the DSU by omitting 
these factors from its assessment. 
Fifth, the Appellate Body addressed the claims of Canada and Mexico that the Panel erred in 
concluding that it could not ascertain the gravity of the consequences of non-fulfilment of the 
amended COOL measure's objective. In considering the Panel's approach, the Appellate Body 
understood the Panel to have treated its assessment of the gravity of consequences of non-fulfilment as essentially a quantitative  exercise. Further, the Appellate Body understood the Panel 
to have considered that its inability to quantify  the gravity of the consequences of not fulfilling the 
amended COOL measure's objective meant that it could not make an assessment of "the risks non-fulfilment would create", and that, consequently, it could not take such risks into account in the overall weighing and balancing under Article 2.2.  In the light of the Panel's approach in that 
regard, the Appellate Body recalled that the nature of the risks and the gravity of the 
consequences of non-fulfilment are merely components of the overall analysis of "the risks non-fulfilment would create". The Appellate Body considered that panels must adopt or develop a 
methodology that is suited to yielding a correct assessment of the relevant factors under 
Article 2.2 in the circumstances of a given case, and that the Panel was correct to seek to assess the gravity of the consequences of non-fulfilment of the COOL measure's objective as precisely as 
it could in the circumstances of this case.  
However, the Appellate Body also recognized that it might be difficult, in some contexts, to 
determine separately the nature of the risks, on the one hand, and to quantify the gravity of the 
consequences that would arise from non-fulfilm ent, on the other hand. The Appellate Body 
considered that, in such contexts, it may be more appropriate to conduct a conjunctive analysis of 
both the nature of the risks and the gravity of the consequences of non-fulfilment, in which "the risks non-fulfilment would create" could be assesse d in qualitative terms. The Appellate Body also 
considered that difficulties or imprecision that arise in assessing "the risks non-fulfilment would 
create", due to the nature of the relevant risks or the gravity of the consequences of non-fulfilment at issue, should not, in and of themselves, relieve a panel from its duty to assess this 
factor. The term "taking account of" calls for the active and meaningful consideration of "the risks WT/AB/26 
 
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  non-fulfilment would create", even where there is imprecision in their nature or magnitude, in the 
weighing and balancing under Article 2.2 of the TBT Agreement. The Appellate Body thus found that a panel should proceed with a holistic weighing and balancing of all relevant factors, and reach an overall conclusion under Article 2.2. Accordingly, the Appellate Body found that the Panel 
erred in concluding that it was unable to ascertain the gravity of the consequences of 
non-fulfilment of the amended COOL measure's objective. 
The Appellate Body then turned to the requests of  Canada and Mexico to find that the Panel erred 
in concluding that they had failed to make a prima facie  case that the first and second proposed 
alternative measures would make an equivalent degree of contribution to the amended COOL measure's objective. Having reviewed the Panel's reasoning, the Appellate Body understood the Panel's ultimate findings in this regard to have been based on the Panel's conclusion that the 
complainants had not proved how or why less origin information, or less accurate origin 
information, being offset by increased product coverage would produce an equivalent degree of contribution. The Appellate Body considered that this conclusion of the Panel was, in turn, based 
on its consideration that, on the evidence before it, the Panel was unable to take account of 
"the risks non-fulfilment would create", and could, consequently, not assess whether the respective degrees of contribution of the amen ded COOL measure and of the first and second 
proposed alternative measures were equivalent. 
In this connection, the Appellate Body recalled its earlier finding that the Panel erred in ceasing its 
analysis when it concluded that it was unable to ascertain the gravity of the consequences that would arise from the non-fulfilment of the amended COOL measure's objective in quantitative 
terms. Since the Panel cited this inability as its reason for concluding that it could not determine 
whether the first and second proposed alternative measures made a degree of contribution equivalent to that of the amended COOL measure,  the Appellate Body considered that this error 
also compromised that conclusion of the Panel, as well as the Panel's subsequent decision to end 
its analysis of whether the amended COOL measure is "more trade-restrictive than necessary" under Article 2.2 on the basis of those proposed alternative measures. Since this, in turn, led to 
the Panel's overall conclusion that Canada and Mexico had not made a prima facie  case that the 
amended COOL measure violated Article 2.2, th e Appellate Body reversed the Panel's overall 
conclusion in that regard. However, in the absence of factual findings by the Panel or sufficient undisputed facts on the Panel record, the Appellate Body could not complete the legal analysis of 
Canada's and Mexico's claims under Article 2.2 in respect of the first and second proposed 
alternative measures. 
Finally, the Appellate Body addressed the request of Canada and Mexico to reverse the Panel's 
finding that they had not adequately identified the third and fourth proposed alternative measures 
for the purpose of making a prima facie  case that an alternative measure is reasonably available. 
The Appellate Body recalled that, in general terms,  the nature and degree of evidence required for 
a complainant to establish the "reasonable availability" of a proposed alternative measure as part 
of a claim under Article 2.2 will necessarily vary from measure to measure and from case to case. That notwithstanding, the Appellate Body also considered certain elements of Article 2.2 to be generally relevant to the question of what nature  and degree of evidence is required to establish 
the "reasonable availability" of a proposed alternative measure. In particular, "reasonable 
availability" pertains to proposed alternative measures that function as "conceptual tools" to assist in assessing whether a technical regulation is more trade restrictive than necessary. Such 
alternative measures are of a hypothetical nature in the context of the analysis under Article 2.2 
because they do not yet exist in the Member in question, or at least not in the particular form proposed by the complainant. For the Appellate Body, such considerations should inform the 
nature and degree of evidence required to esta blish the "reasonable availability" of proposed 
alternative measures in making a prima facie  case under Article 2.2. The Appellate Body also 
considered relevant jurisprudence relating to Article XX of the GATT 1994 and Article XIV of the 
GATS in assessing the appropriat e burden of proof concerning the "reasonable availability" under 
Article 2.2 of the TBT Agreement. For instance, the Appellate Body noted that an alternative 
measure may be found not to be "reasonably available" where it is merely theoretical in nature, where the responding Member is not capable of ta king it, or where the measure imposes an undue 
burden on that Member, such as prohibitive costs or substantial technical difficulties.  
With those considerations in mind, the Appellate Body noted that Canada and Mexico asserted that 
their third and fourth proposed alternative measures were based on, inter alia , analogous 
measures that had been implemented in the United States and in other Members. In that context, WT/AB/26 
 
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  the Appellate Body considered that the Panel should  have enquired whether this evidence provided 
by the complainants could have provided a suffici ent indication that the costs of the proposed 
alternatives would not be a priori  prohibitive, and that potential technical difficulties associated 
with their implementation would not be of such a substantial nature that they would render the 
proposed alternatives merely theoretical in nature . In the Appellate Body's view, the Panel should 
have then enquired to what extent the United St ates had submitted evidence substantiating that 
the proposed alternative measures were indeed mere ly theoretical in nature, or entailed an undue 
burden, for instance, because they involved prohibitively high costs or would entail substantial 
technical difficulties. Thus, in the light of the Pa nel's failure to engage in such enquiries, the 
Appellate Body found that the Panel did not properly  allocate the burden of proof applicable under 
Article 2.2 of the TBT Agreement in finding that  Canada and Mexico had not provided sufficient 
explanation of how their third and fourth proposed  alternative measures would be implemented in 
the United States, and of the costs associated with those alternative measures. However, the 
Appellate Body did not seek to complete the legal analysis in respect of those alternatives because 
it had not been requested to do so. 
4.2.3  Article III:4 and Ar ticle IX of the GATT 1994 
The United States appealed the Panel's finding that the amended COOL measure is inconsistent 
with Article III:4 of the GATT 1994. The United Stat es argued that the Panel erred in finding that 
less favourable treatment could be demonstrated based on the existence of detrimental impact 
without further inquiry into the context provided by  Article IX. For the United States, Articles IX:2 
and IX:4 are relevant context for the interpretation of Article III:4, reflecting a recognition of the 
fact that regulations aimed at providing consumer information on origin may cause difficulties and 
inconveniences to exporting Members and increase the cost of imported products.  
The Appellate Body noted that both Article IX:2 – which calls for a reduction of difficulties and 
inconveniences that laws and regulations relating to marks of origin may cause to exporters – and 
Article IX:4 – which requires that compliance with such laws and regulations should be possible without materially reducing the value of the products, or unnecessarily increasing the cost of the 
products – call for a limitation  of the impact of the use of marks of origin. Accordingly, the 
Appellate Body did not see that the obligations enshrined in these provisions suggest a more flexible interpretation of "treatment no less favourable" in Article III:4. Rather, Articles IX:2 and IX:4 set out obligations with regard to "mar king requirements" that are separate from, and 
additional to, the national treatment obli gation in Article III:4 of the GATT 1994. 
The Appellate Body also noted that the United States' argument was based on the proposition that 
the analysis of less favourable treatment under Article III:4 should include an inquiry into whether 
the detrimental impact of a measure on imports is unrelated to foreign origin and could be 
explained by other factors that do not reflect discr imination. The Appellate Body stated that this 
proposition was expressly rejected in US – Clove Cigarettes . On this basis, the Appellate Body 
concluded that the Panel did not err by not attributing contextual relevance to Article IX of the 
GATT 1994 in its interpretation of Article III:4 of  the GATT 1994, and in finding that the amended 
COOL measure is inconsistent with Article III:4 of the GATT 1994. 
4.2.4  Article III:4 and Article XX of the GATT 1994 
The United States alleged that the Panel erred by rejecting the United States' request, at the 
interim review stage, to address the availability of Article XX of the GATT 1994 as an exception for 
Article III:4 of the GATT 1994 with respect to th e amended COOL measure. The United States 
requested the Appellate Body to complete the legal analysis under Article XX and to find that an 
exception under Article XX would be available with respect to the amended COOL measure.  
At the outset of its analysis, the Appellate Body noted that the United States had not invoked 
Article XX either in its written submissions to the Panel or in its oral statements at the Panel 
meetings, and had referred to Article XX for the first time at the interim review stage. However, even then, the United States did not identify a specific paragraph of Article XX or provide 
arguments and evidence to demonstrate that the amended COOL measure meets the requirements 
of Article XX.  WT/AB/26 
 
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  With respect to the allegation that the Panel erre d in the way it addressed, at the interim review 
stage, the availability of Article XX of the GATT 1994 as an exception for Article III:4 of the GATT 1994 with respect to the amended COOL meas ure, the Appellate Body noted that, pursuant 
to Article 15.3 of the DSU, "the final report shall include a discussion of the arguments made at 
the interim review stage." The Appellate Body found no error with the way in which the Panel 
addressed the United States' request relating to Article XX of the GATT 1994 at the interim review stage. 
In particular, the Appellate Body agreed with thr ee considerations articulated by the Panel. First, 
the Panel found that the United States, as a responding Member, had failed to invoke before the Panel a defence under Article XX. Second, the hypothetical situation suggested by the United States of a measure found to be consistent with Article 2.1 of the TBT Agreement and, at 
the same time, inconsistent with Article III:4 of the GATT 1994 did not arise in these disputes 
because the Panel had found the amended COOL measure to be inconsistent  with both Article 2.1 
of the TBT Agreement and Article III:4 of the GATT 1994. Third, addressing, at the interim review 
stage, the availability of Article XX as an except ion for Article III:4 of the GATT 1994 with respect 
to the amended COOL measure would have required  examination of an issue for which neither the 
United States, nor the complainants, had provided specific evidence or argument. On this basis, 
the Appellate Body found that the Panel did not err in the way it addressed, at the interim review 
stage, the United States' request relating to the availability of Article XX of the GATT 1994 as an exception to Article III:4 of the GATT 1994 with  respect to the amended COOL measure.  
4.2.5  Article XXIII:1(b) of the GATT 1994 
Canada and Mexico each raised a conditional a ppeal under Article XXIII:1(b) of the GATT 1994. In 
the event that the Appellate Body reversed the Panel's findings under Article 2.1 of the TBT Agreement and Article III:4 of the GATT  1994, Canada and Mexico requested the 
Appellate Body to find that the Panel erred by exercising judicial economy with respect to their 
claims under Article XXIII:1(b), and to complete the legal analysis under that provision. Because the condition upon which these appeals were premised was not satisfied, the Appellate Body did 
not make findings under Article XXIII:1(b) of the GATT 1994. 
The United States also raised a conditional appeal under Article XXIII:1(b) of the GATT 1994. In 
the event that the condition of Canada's and Mexico's appeals under Article XXIII:1(b) was fulfilled, the United States appealed the Panel's conclusion that Canada's and Mexico's claims 
under Article XXIII:1(b) were within the Panel's terms of reference. Because the condition on 
which the complainants' appeals were made was not satisfied, the Appellate Body did not make findings in this regard. 
4.3  Appellate Body Report, United States – Anti-Dumping Measures on Certain Shrimp 
from Viet Nam , WT/DS429/AB/R 
The dispute concerned anti-dumping measures impose d by the United States on imports of certain 
shrimp from Viet Nam, as well as certain US laws or practices concerning the imposition of 
anti-dumping measures and the implementation of adverse DSB recommendations and rulings in trade remedy cases. The investigation at issue was initiated in January 2004, resulting in a final anti-dumping order on 8 December 2004, amende d on 1 February 2005. Viet Nam brought claims 
before the Panel with respect to the final determinations in administrative reviews, in 2010, 2011, 
and 2012, published by the United States Department of Commerce (USDOC). Viet Nam's claims concerned: (i) the use of zeroing in the calculation of dumping margins; (ii) the rate that was 
assigned to certain Vietnamese producers that did not demonstrate sufficient independence from 
government control and, thus, were deemed by the USDOC to be part of a so-called "Viet Nam-wide entity"; and (iii) the USDOC's failure to revoke the anti-dumping order with 
respect to certain Vietnamese producers/exporters. Viet Nam also made claims with respect to the 
USDOC's "likelihood-of-dumping" determination in the context of the USDOC's sunset review in 2010. 
The US laws or practices challenged by Viet Nam were: (i) the so-called "simple zeroing" 
methodology applied by the USDOC in administrative reviews; (ii) the USDOC's "NME-wide-entity 
rate practice" applied in anti-dumping proceedings concerning imports from non-market economy (NME) countries such as Viet Nam; and (iii) Section 129(c)(1) of the Uruguay Round WT/AB/26 
 
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  Agreements Act (URAA), a provision establishing certain procedures for the implementation of 
adverse DSB recommendations and rulings in th e context of anti-dumping, countervailing, and 
safeguard measures. More specifically, Section 129(c)(1) addresses the question of when revised determinations made pursuant to that mechanis m (Section 129 determinations) take effect. It 
provides that Section 129 determinations apply to imports (entries) of subject merchandise made 
on or after  the date on which the Office of the United  States Trade Representative (USTR) directs 
the USDOC to implement a USDOC or US International Trade Commission (USITC) Section 129 
determination. 
Based on its analysis of Viet Nam's claims, the Panel found that Viet Nam had failed to 
demonstrate that the zeroing methodology still existed as a rule or norm of general and prospective application, which could be challenged  "as such". On this basis, the Panel rejected 
Viet Nam's "as such" claims of inconsistency under Article 9.3 of the Anti-Dumping Agreement and 
Article VI:2 of the GATT 1994. The Panel found, however, that the USDOC had used zeroing to calculate the dumping margins of Vietnamese prod ucers/exporters examined individually in the 
three administrative reviews at issue, and that this was inconsistent with Article 9.3 of the 
Anti-Dumping Agreement and Article VI:2 of the GATT 1994. 
Further, the Panel found that Viet Nam had de monstrated that, in anti-dumping proceedings 
involving NME countries, the USDOC applies a rebuttable presumption that all producers/exporters 
within that NME country belong to a single, "NME-wide entity" and assigns a single rate to that entity, and, thus, to companies deemed to belong to that entity. The Panel found that this practice or policy is "as such" inconsistent with the United States' obligation under Article 6.10 of the 
Anti-Dumping Agreement to determine indi vidual dumping margins for each known 
producer/exporter, as well as the obligation in  Article 9.2 of the Anti-Dumping Agreement to 
specify individual duties for each supplier. The Panel also found application of this practice, in the 
three administrative reviews at issue, to be inconsistent with Article 9.2.  
The Panel rejected Viet Nam's claim that there existed a USDOC practice with respect to the 
manner in which the NME-wide entity rate is calculated. However, the Panel found that while, 
in each of the three administrative reviews at issue, the "Viet Nam-wide entity" and its constituent 
companies had not been individually examined, they had been assigned a rate exceeding the 
ceiling applicable under Article 9.4. The Panel therefore found in favour of Viet Nam's claim of inconsistency under Article 9.4 of the Anti-Dumping Agreement. However, the Panel determined 
that Viet Nam had failed to establish that the rate applied to the "Viet Nam-wide entity" 
in these administrative reviews was inconsistent with Article 6.8 and Annex II of the Anti-Dumping Agreement. 
Moreover, given that, in the proceedings at issue, the USDOC had relied on margins of dumping 
calculated with zeroing in its consideration of revocation requests by certain companies, the Panel found that the USDOC's treatment of these requests was inconsistent with Article 11.2 of the 
Anti-Dumping Agreement 
Viet Nam's appeal in this dispute focused on the Panel's analysis of Viet Nam's claim that 
Section 129(c)(1) of the URAA (Section 129(c)(1)) is inconsistent, "as such", with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement. Neither party appealed the other Panel's 
findings. 
Before the Panel, Viet Nam had argued that, by limiting the application of new, WTO-consistent 
determinations to entries of subject merchandise made on or after the "implementation date" of 
the new determination, Section 129 precludes the US authorities from implementing 
DSB recommendations and rulings with respect to any entries made prior to, and that remain 
"unliquidated" on, that date (prior unliquidated entries). On this basis, Viet Nam claimed that 
Section 129(c)(1) is "as such" inconsistent with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the 
Anti-Dumping Agreement. 
In its assessment of Viet Nam's claims, the Panel took into consideration the text of 
Section 129(c)(1), the Statement of Administrative Action that accompanied the URAA, the 
US authorities' application of Section 129(c)(1) to date, and two opinions of the US Court of 
International Trade (USCIT) cited by Viet Nam. The Panel also took into account arguments and 
evidence put forward by the United States concerning alternative means available to the WT/AB/26 
 
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  United States that would implement DSB reco mmendations and rulings. The Panel found that 
Viet Nam had failed to establish that Section 129(c)(1) precludes "extending the benefits of implementation" to prior unliquidated entries. The Panel concluded, therefore, that Viet Nam had not established that Section 129(c)(1) is inconsistent "as such" with Articles 1, 9.2, 9.3, 11.1, 
and 18.1 of the Anti-Dumping Agreement. On appeal , Viet Nam claimed that, in arriving at this 
finding, the Panel acted inconsistently with its obligations under Article 11 of the DSU, on two 
grounds. First, Viet Nam argued that the Panel e rred by applying an incorrect analytical framework 
whereby it determined that it would not consider whether Section 129(c)(1) is inconsistent 
"as such" with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement unless Viet Nam 
could establish that Section 129(c)(1) precludes implementation of DSB recommendations and rulings with respect to all prior unliquidated entries. Viet Nam criticized, in particular, the Panel's 
alleged failure to appreciate that there is a subset of prior unliquidated entries that "might only be 
addressed" by a Section 129 determination. On ap peal, Viet Nam referred to the subset of prior 
unliquidated entries that have been subject to a final determination in an investigation or review 
as "Category 1" entries. Second, Viet Nam asserted that the Panel failed to conduct a holistic 
assessment in ascertaining the meaning of Section 129(c)(1).  
4.3.1  The analytical framework applied by the Panel 
The Appellate Body disagreed with Viet Nam to the extent that it argued that the Panel had 
rejected Viet Nam's claims on the basis that Viet Nam had not demonstrated that Section 129(c)(1) precludes implementation of DSB recommendations and rulings with respect to 
all prior unliquidated entries. Instead, the Appella te Body found that the Panel had responded to 
the argument that Viet Nam had made before the Panel. Thus, the Appellate Body understood the Panel to have examined whether Viet Nam had established that Section 129(c)(1), in and of itself, 
precludes implementation of DSB recommendations and rulings with respect to prior unliquidated 
entries, rather than requiring Viet Nam to show  that Section 129(c)(1) precludes implementation 
of DSB recommendations and rulings in all circumstances.  
 
The Appellate Body agreed with Viet Nam that in order to make an objective assessment of the matter before it, the Panel was required to examine whether Viet Nam had demonstrated that Section 129(c)(1) necessarily operates , at least in certain circumstances, to preclude  
implementation of DSB recommendations and rulin gs. The Appellate Body noted, however, the 
Panel's finding that the United States had identified instances in which a modification to USDOC practice was effected through a Section 129 determination as well as a Section 123 rule 
modification, which itself was applied in subsequent administrative reviews with respect to some 
prior unliquidated entries, and that Viet Nam had not disputed the accuracy of the examples cited by the United States, but merely contested their relevance. The Appellate Body further noted, as 
did the Panel, that Section 123(g)(1) establishes a mechanism for US authorities to make changes 
in USDOC (or other agency) regulations or practice in order to render them consistent with DSB recommendations and rulings, and that, under th at provision, the regulation or practice at 
issue may be amended, rescinded, or otherwise modified upon the fulfilment of a series of 
procedural steps. For the Appellate Body, ther e appeared to be a tension therefore between 
Viet Nam's assertion that Section 129(c)(1) precludes implementation of DSB recommendations and rulings with respect to prior unliquidated entries, on the one hand, and Viet Nam's recognition 
that alternative mechanisms available to the United States may result in WTO-consistent action, 
on the other hand. The Appellate Body noted in particular that Viet Nam did not dispute that the United States can liquidate entries of the subject merchandise consistently with its 
WTO obligations, and that it has done so in the past. For the Appellate Body, this undermined 
Viet Nam's argument that Section 129(c)(1), in itself, precludes implementation of DSB recommendations and rulings. 
In addition, the Appellate Body recalled the United  States' explanation that Section 129 is but one 
tool in a toolbox by which the United States can implement DSB recommendations and rulings. For 
its part, Viet Nam did not contest the fact that there may be other means of implementation available to the United States – rather, as noted, Viet Nam argued that such other means were not 
relevant for purposes of examining its claim against Section 129(c)(1). In this regard, and by way 
of example, the United States referred to its nego tiation of an agreement in the Softwood Lumber 
disputes with Canada in 2006, as well as to the resulting liquidation of "so-called Category 1 
entries without duties" and the retroactive revocation of certain orders at issue. Specifically in 
relation to Category 1 entries, the United States also explained that it could liquidate such entries 
through the mechanism of a judicial remand, and that, in that context, the USDOC has the WT/AB/26 
 
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  discretion to modify the applicable margins or even revoke an anti-dumping or countervailing duty 
order, and also enjoys discretion to request that its determinations be voluntarily remanded. Further, the United States had highlighted, at th e oral hearing, that the Category 1 entries that 
were subject to administrative proceedings in the US – Shrimp (Viet Nam)  dispute had been 
liquidated in a WTO-consistent manner, and that Viet Nam had not disputed this.  
4.3.2  The Panel's assessment of the meaning of Section 129(c)(1) The Appellate Body began by recalling its jurisprudence regarding a panel's duties in establishing 
the meaning of municipal law. In particular, the Appellate Body recalled its statement in 
US – Countervailing and Anti-Dumping Measures (China ) that, in ascertaining the meaning of 
municipal law, a panel should undertake a holistic assessment of all relevant elements, starting with the text of the law and including, but not limited to, relevant practices of administering 
agencies. The Appellate Body clarified that an examination of such elements, including legal 
interpretations given by domestic courts or domestic administering authorities, may inform the question of whether a measure is consistent with a WTO Member's obligations under the covered 
agreements. The Appellate Body thereafter scrutin ized the Panel's analysis to determine whether 
the Panel had conducted a holistic assessment in ascertaining the meaning of Section 129(c)(1). Based on its review of the Panel's analysis, the Appellate Body found that the Panel had properly 
relied on the relevant elements put before it by the parties to inform its understanding of the 
meaning and effect of Section 129(c)(1). These elements included: the text of Section 129(c)(1); the broader statutory context of the provision at is sue, especially the Statement of Administrative 
Action (SAA); the US Government's application of Section 129(c)(1) in the years since it was 
adopted; the alternative means of implementation put forward by the United States; and two 
judicial opinions of the US Court of Internationa l Trade (USCIT) cited by Viet Nam. Therefore, the 
Appellate Body did not agree with Viet Nam that the Panel had failed to conduct a holistic 
assessment in ascertaining the meaning of Section 129(c)(1). 
 4.3.3  Conclusion 
In sum, the Appellate Body found that Viet Nam had not established that the Panel acted 
inconsistently with Article 11 of the DSU, and consequently upheld the Panel's finding that Viet Nam had not established that Section 129(c)(1) is inconsistent "as such" with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement. As a result of its findings, the Appellate Body 
determined that it did not need to address Viet Nam's request for completion of the legal analysis 
in order to determine whether Section 129(c)(1) is inconsistent "as such" with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement. 
4.4  Appellate Body Report, India – Measures Concerning the Importation of Certain 
Agricultural Products , WT/DS430/AB/R 
This dispute concerned a challenge by the United States to measures consisting of prohibitions 
that India imposes on the importation of various agricultural products, primarily poultry products, 
because of concerns related to avian influenza (AI). Commonly known as "bird flu", AI is an infectious viral disease of birds, especially wild birds, which can sometimes spread to domestic poultry and may cause infections in other animals and humans. AI viruses are classified as either 
highly pathogenic avian influenza (HPAI) or low pathogenicity avian influenza (LPAI). 
In examining whether India's AI measures are SPS measures, the Panel considered that India's AI 
measures fall within the scope of the instruments listed in the second sentence of Annex A(1) of 
the SPS Agreement as they are maintained throug h the Live-Stock Importation Act, as amended 
(Livestock Act), and Statutory Order 1663(E) (S.O. 1663(E)), and both are legal instruments that qualify as either "laws", "decrees", or "regulatio ns" within the meaning of the second sentence of 
Annex A. The Panel also considered that both instruments reflect objectives that fall within the 
definitions in Annex A(1). The Panel further found that India's AI measures satisfied specific elements in Annex A(1)(a) through (c). The Panel further considered that an import ban such as the one imposed by India's AI measures affects in ternational trade, and therefore concluded that 
India's AI measures are SPS measures subject to the disciplines of the SPS Agreement. 
The Panel found that India's AI measures are inconsistent with Article 3.1 of the SPS Agreement 
because they are not "based on" the relevant in ternational standard, i.e. Chapter 10.4 of the WT/AB/26 
 
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  Terrestrial Code of the World Organization for Animal Health (OIE), an intergovernmental 
organization that establishes health standards for international trade in animals and animal products. The Panel also concluded that India's AI measures do not "conform to" the Terrestrial Code, within the meaning of Article 3.2 of the SPS Agreement, and that, therefore, 
India is not entitled to benefit from the presumption of consistency of its AI measures with the 
other relevant provisions of the SPS Agreement and the GATT 1994. Further, the Panel found that India did not have a risk assessment as required by  Article 5.1 of the SPS Agreement in respect of 
its AI measures. The Panel therefore concluded that India's AI measures are inconsistent with 
Articles 5.1 and 5.2.  
The Panel also found India's measures to be inconsistent with Article 2.2 of the SPS Agreement 
because they are not based on scientific principles  and are maintained without sufficient scientific 
evidence. In addition, the Panel found that India's AI measures are inconsistent with Article 2.3, 
first sentence, because they arbitrarily and unj ustifiably discriminate between India and other 
Members in which the same or similar conditions prevail, and that India's AI measures are applied 
in a manner that constitutes a disguised restriction on international trade, and are therefore 
inconsistent with Article 2.3, second sentence.  
The Panel found that India's AI measures are inconsistent with Articles 2.2 and 5.6 of the 
SPS Agreement because they are more trade-re strictive than required to achieve India's 
appropriate level of protection (ALOP). The Panel compared India's AI measures with the reasonably available alternative measures propos ed by the United States, consisting of the 
Terrestrial Code. The Panel concluded that measures based on the Terrestrial Code would achieve 
India's very high or very conservative ALOP, and that such measures are significantly less 
restrictive to trade than India's AI measures.  
The Panel also found that India's AI measures are inconsistent with Article 6.2, first sentence, of 
the SPS Agreement because they fail to recognize the concepts of disease-free areas and areas of 
low disease prevalence, and, as a consequence, also with Article 6.2, second sentence. Having found that India's AI measures fail to recognize the concepts of disease-free areas and areas of 
low disease prevalence, the Panel further found that India's AI measures are inconsistent with 
Article 6.1 of the SPS Agreement because they ar e not adapted to the SPS characteristics of the 
areas from which products originate. 
Finally, the Panel found that India acted inconsistently with Annex B(2) of the SPS Agreement 
because it failed to allow a reasonable interval between the publication of India's measure and its 
entry into force. Moreover, the Panel found that In dia acted inconsistently with Annex B(5)(a), (b), 
and (d) of the SPS Agreement. Having found that India acted inconsistently with these provisions 
under Annex B, the Panel found that India also acted inconsistently with Article 7 of the 
SPS Agreement.  
In the light of its findings that India's AI measures are inconsistent with several provisions of the 
SPS Agreement, the Panel exercised judicial ec onomy regarding the United States' claim under 
Article XI of the GATT 1994 that India also breached Article XI of the GATT 1994. 
4.4.1  Articles 2.2, 5.1, and 5.2 of the SPS Agreement 
India appealed the Panel's findings that India's AI measures are inconsistent with Articles 2.2, 5.1, 
and 5.2 of the SPS Agreement. India claimed th at the Panel erred in its interpretation and 
application of Article 2.2 of the SPS Agreement in finding India's AI measures to be inconsistent 
with that provision solely as a consequence of its finding that they are inconsistent with 
Articles 5.1 and 5.2. India also alleged that the Panel failed to make an objective assessment of the matter, as required by Article 11 of the DSU,  by: (i) disregarding the arguments and evidence 
presented by India to establish that its AI measures are consistent with Article 2.2 because they 
are based on scientific principles and sufficient scientific evidence; (ii) ruling on a claim that was broader than the one put forward by the United Stat es in its written submissions; and (iii) failing 
to consider India's argument that, because its AI measures are based on scientific principles and 
are not maintained without sufficient scientific evidence, and are thus consistent with Article 2.2, 
India was not required to conduct a separate risk assessment under Articles 5.1 and 5.2. WT/AB/26 
 
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  4.4.1.1  The relationship between Article 2.2,  on the one hand, and Articles 5.1 and 5.2, 
on the other hand  
The Appellate Body began by considering the rela tionship between Article 2.2, on the one hand, 
and Articles 5.1 and 5.2, on the other hand. Begi nning with the general structure and logic of the 
SPS Agreement, the Appellate Body noted that Arti cle 2 sets out basic rights and obligations for 
WTO Members, and several paragraphs of Article 5 elaborate upon many of the basic obligations 
set out in Article 2. Recalling its observations in past disputes emphasizing the close link between 
Article 2.2 and Article 5.1, as well as between Articles 2.2 and 5.6, and between Articles 2.3 
and 5.5, the Appellate Body considered that the structure and logic of the SPS Agreement, 
as understood in the light of the relationship betwee n the various provisions of Articles 5 and 2, is 
such that the preferred means for complying with the basic obligations under Article 2 is through 
the particular routes or specific obligations set out in Article 5. 
Turning to the substantive obligations under the provisions at issue, the Appellate Body recalled 
that the obligation in Article 2.2 that an SPS measure not be maintained without sufficient 
scientific evidence requires that there be a ra tional or objective relationship between the 
SPS measure and the scientific evidence. Whether such  a relationship exists will depend upon the 
particular circumstances of the case, including th e characteristics of the measure at issue and the 
quality and quantity of the scientific evidence. As to Article 5.1, the Appellate Body recalled that 
the requirement under that provision that an SPS measure be "based on" a risk assessment is a substantive requirement that there be a rational  relationship between the measure and the risk 
assessment. The Appellate Body pointed out that a li st of factors that "shall" be taken into account 
in a risk assessment is provided in Article 5.2, beginning with "available scientific evidence", 
but also including: relevant processes and production methods; relevant inspection, sampling and testing methods; prevalence of specific diseases or  pests; existence of pest- or disease-free areas; 
relevant ecological and environmental conditions; and quarantine or other treatment. 
Addressing the relationship between Articles 2.2 and 5.1, the Appellate Body stated that Article 5.1 
may be viewed as a specific application of the basic obligations contained in Article 2.2 of the 
SPS Agreement. The Appellate Body recalled its observations that these two provisions should 
constantly be read together and that Article 2.2 in forms Article 5.1, since the elements that define 
the basic obligation set out in Article 2.2 impart meaning to Article 5.1. Although Articles 5.1 and 5.2 may be considered specific applications of the basic obligations in Article 2.2, the 
Appellate Body clarified that this does not imply that the obligations in Articles 5.1 and 5.2 limit 
the scope of application of the obligations in Article 2.2, or vice versa. Instead, all of these obligations apply together as neither Article 2.2, on the one hand, nor Articles 5.1 and 5.2, on the 
other hand, contain any language suggesting a limitation on the scope of their application inter se . 
The Appellate Body thus stressed that, other than in circumstances covered by Article 5.7, a WTO Member's SPS measures must conform with the obligations both in Article 5.1 and 
in Article 2.2. 
The Appellate Body noted that a panel's task under Article 5.1 is linked to, and is informed by, the 
requirements of Article 2.2, in particular as such  task encompasses a scrutiny of the scientific basis 
underlying a risk assessment and, ultimately, the SPS measure at issue. Thus, the findings that a 
panel makes with respect to claims that an SPS me asure is inconsistent with Articles 5.1 and 5.2 
have an important role to play in that panel's assessment of a claim that the same SPS measure is inconsistent with Article 2.2 because it is not based on scientific principles and is maintained 
without sufficient scientific evidence. The Appellate Body recalled that in previous disputes it has 
consistently held that an SPS measure found to be inconsistent with Articles 5.1 and 5.2 can be presumed, more generally, to be inconsistent with Article 2.2. Nonetheless, the Appellate Body 
noted that the terms used in Article 2.2 and Ar ticles 5.1 and 5.2 are not identical, and that, 
therefore, their respective scopes may not be enti rely coextensive. For the Appellate Body, this 
suggested that, although it may give rise to a presumption of inconsistency  with Article 2.2, a 
finding of a violation of Articles 5.1 and 5.2 might not invariably lead to a finding of inconsistency 
with Article 2.2, because it cannot be excluded that there may be circumstances in which an 
SPS measure that violates Articles 5.1 and 5.2 will not be inconsistent with Article 2.2. Thus, according to the Appellate Body, the presumption that Article 2.2 is violated in cases of violation of 
Articles 5.1 and 5.2 cannot be irrebuttable.  
The Appellate Body, however, stressed that the rebuttability of the presumption cannot have the 
effect of diluting the requirements under Articles 5.1 and 5.2 or undermining the structure and WT/AB/26 
 
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  logic of the SPS Agreement. Referring to the defi nition of an SPS measure in Annex A(1) to the 
SPS Agreement, the Appellate Body noted that one ke y characteristic of SPS measures is that they 
seek to protect against identifiable "risks". As Article 2.2 lays down requirements with which Members adopting SPS measures mu st comply, and given that protection against risks to human, 
animal or plant life or health is a key characteri stic of SPS measures, the Appellate Body observed 
that an assessment of the consistency of an SPS measure with Article 2.2 would, by definition, involve consideration of evidence relating to the specific risks against which the SPS measure 
seeks to protect, and to whom the risk is po sed (e.g. humans, animals, plants, and/or the 
environment). The Appellate Body next addressed the quality and quantity of scientific evidence 
that needs to be taken into account in determining whether there is a rational and objective relationship between an SPS measure and the scienti fic evidence within the meaning of Article 2.2. 
Given the close relationship between Articles 2.2 and 5.1, the Appellate Body recalled that, in 
scrutinizing the underlying scientific basis under Article 5.1, the evidence presented must have the necessary scientific and methodological rigour to be considered reputable and legitimate science 
according to the standards of the relevant scientific community.  
For these reasons, the Appellate Body was of th e view that even though the presumption of 
inconsistency under Article 2.2 flowing from a violation of Articles 5.1 and 5.2 is rebuttable, 
establishing that there exists a rational or obje ctive relationship between the SPS measure and the 
scientific evidence for purposes of Article 2.2 woul d, in most cases, be difficult without a Member 
demonstrating that such a measure is based on an assessment of the risks, as appropriate to 
the circumstances. 
4.4.1.2  The Panel's interpretation  and application of Article 2.2  
India claimed that the Panel erred in interpreting and applying Article 2.2 of the SPS Agreement 
because, although the Panel correctly identified that an SPS measure that does not comply with 
Articles 5.1 and 5.2 is "presumed" to be inconsistent with Article 2.2, the Panel incorrectly ignored 
that the obligations under Article 2.2 can also be independently fulfilled without resorting to Article 5.1. Noting that, in the present case, it had based its "defense" under Article 2.2, India 
submitted that the Panel should therefore have  started its analysis with Article 2.2.  
Recalling its observation that SPS measures adopted by Members must comply with all of the 
requirements of Articles 2.2, 5.1, and 5.2, the A ppellate Body disagreed with India's position that 
a WTO Member whose SPS measure is found to be consistent with Article 2.2 is under no 
obligation to conduct a risk assessment, as required by Articles 5.1 and 5.2. Given that a 
WTO Member's compliance with the basic obligations in Article 2.2 cannot exclude the application of Articles 5.1 and 5.2, the Appellate Body also disagreed with India that the Panel was required to 
start its analysis with Article 2.2, before proceeding to assess the United States' claims under 
Articles 5.1 and 5.2.  
Turning to the Panel's interpretation of Articles 2.2, 5.1, and 5.2, the Appellate Body considered 
that the Panel's understanding, namely that SP S measures found to be inconsistent with 
Articles 5.1 and 5.2, can be presumed, more genera lly, not to be based on scientific principles and 
maintained without sufficient scientific evidence, wi thin the meaning of Article 2.2, was consistent 
with the nature of the obligations under these provisions. With regard to the Panel's statement 
that, "[i]n practical terms, … a violation of Articles 5.1 and 5.2 entails a violation of the more 
general Article 2.2", the Appellate Body noted that  although the use of the verb "entails" by the 
Panel may be seen as suggesting that the Panel was of the view that Article 2.2 would necessarily 
be violated whenever a measure is found to be inconsistent with Articles 5.1 and 5.2, the Panel 
qualified its statement by using the language "[i]n practical terms". The Appellate Body was therefore not convinced that, merely by using the verb "entails" in interpreting the relationship 
between Article 2.2 and Articles 5.1 and 5.2, the Panel equated the presumption of inconsistency 
under Article 2.2 with a consequential violation. Thus, the Appellate Body found that the Panel did not err in its interpretation of Articles 2.2, 5.1, and 5.2 of the SPS Agreement, in particular, in its understanding of the relationship between Article 2.2, on the one hand, and Articles 5.1 and 5.2, 
on the other hand.  
As to the Panel's application of Article 2.2 to India's AI measures, the Appellate Body noted that, 
before the Panel, India presented arguments and scientific evidence to establish that its import 
ban with respect to fresh meat of poultry and eggs from countries reporting low pathogenicity 
notifiable avian influenza (LPNAI) is not maintained without sufficient scientific evidence within the WT/AB/26 
 
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  meaning of Article 2.2. Referring to the Panel's analysis, the Appellate Body noted that the Panel 
made no mention of the evidence and arguments put forth by India in support of its assertion that its import prohibitions on fresh meat of poultry and eggs from countries reporting LPNAI are based on scientific principles and are not maintained without sufficient scientific evidence, within the 
meaning of Article 2.2. Given that the Panel did not consider the rebuttability of the presumption 
of inconsistency under Article 2.2 before proceeding to its final conclusion under Article 2.2 on the sole ground that it had already found India's AI measures to be inconsistent with Articles 5.1 
and 5.2, the Appellate Body was of the view th at the Panel found that those measures violate 
Article 2.2 as an automatic consequence of its finding that those measures are inconsistent with Articles 5.1 and 5.2. The Appellate Body also contrasted the Panel's approach with its analysis of the presumption of inconsistency with respect to the first requirement under Article 2.2 flowing 
from a violation of Article 5.6. In that part of its Report, the Panel expressly considered the 
rebuttability of the presumed violation of Article 2.2 that flowed from its finding of a violation of Article 5.6, and noted that India had presented no arguments to rebut such a presumption.  
For these reasons, the Appellate Body found that, by failing to consider whether the presumption 
of inconsistency with Article 2.2 that flowed from its finding that India's AI measures are inconsistent with Articles 5.1 and 5.2 was rebutted by the arguments and evidence presented by 
India, the Panel erred in its application of Article 2.2 to India's AI measures with respect to the 
import prohibitions on fresh meat of poultry and eggs from countries reporting LPNAI. The Appellate Body thus reversed, in part, the Panel's findings that India's AI measures are inconsistent with Article 2.2 of the SPS Agreement, because they are not based on scientific 
principles and are maintained without sufficient scientific evidence, insofar as those findings 
concern India's import prohibitions on fresh meat of poultry and eggs from countries reporting LPNAI. 
4.4.1.3  Article 11 of the DSU 
India also claimed that the Panel acted inconsistently with its duty to make an objective 
assessment of the matter under Article 11 of the DSU for three reasons. First, India submitted that 
the Panel failed to make an objective assessment of the matter by disregarding India's arguments 
and evidence that sought to establish that India' s AI measures are based on scientific principles 
and are not maintained without sufficient scientific evidence, as required by Article 2.2. Having reversed part of the Panel's ultimate finding under Article 2.2 relating to the import prohibitions on 
fresh meat of poultry and eggs from countries reporting LPNAI, the Appellate Body did not 
consider it necessary to rule on this claim by India.  
Second, India asserted that the Panel failed to make an objective assessment of the matter 
because it ruled on a claim that was not argued by  the United States, insofar as the Panel's finding 
of inconsistency under Article 2.2 covered the import prohibitions that India's AI measures impose on ten categories of products upon the occurrenc e of both highly pathogenic notifiable avian 
influenza (HPNAI) and LPNAI. According to India, the United States only made out its claim with 
respect to import prohibitions imposed on two pr oduct categories upon occurrence of LPNAI. The 
Appellate Body did not consider that the case ma de by the United States was limited in the way 
that India asserted. The Appellate Body recalled that the Panel's finding of inconsistency with 
Article 2.2 flowed from its findings of inconsistency with Articles 5.1 and 5.2, which concerned all 
ten product categories covered by India's AI measures; and that India's AI measures impose prohibitions on the import of the relevant agricultural products from countries reporting NAI, that 
is, both HPNAI and LPNAI. Thus, the Appellate Body did not consider that the Panel erred by virtue 
of the fact that the scope of its finding under Ar ticle 2.2 extended to the ten product categories 
listed in India's AI measures, as they apply both to the occurrence of HPNAI and LPNAI.  
Finally, India asserted that the Panel failed to make an objective assessment of the matter in its 
analysis under Articles 5.1 and 5.2 because it did not address India's argument that, because its AI measures are based on scientific principles an d are not maintained without scientific evidence, 
they meet the requirements of Article 2.2, and In dia is therefore under no obligation to conduct a 
separate risk assessment under Article 5.1 in th e present case. The Appellate Body considered 
India's Article 11 claim to be an allegation that the Panel erred in its interpretation and application 
of Articles 2.2, 5.1, and 5.2, rather than a challe nge to the objectivity of the Panel's assessment of 
the matter before it. Accordingly, the Appellate Body rejected this claim of error by India. WT/AB/26 
 
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  4.4.1.4  India's request to complete the legal analysis 
Having reversed, in part, the Panel's finding under Article 2.2, the Appellate Body considered 
India's request to complete the legal analysis and, based on the evidence adduced by India, to find 
that India's AI measures are based on scientific pr inciples and maintained with sufficient scientific 
evidence and are therefore consistent with Articl e 2.2. In the absence of undisputed facts on the 
record or relevant factual findings by the Panel, the Appellate Body found that it was unable to complete the legal analysis and assess the consistency of India's AI measures with Article 2.2 of 
the SPS Agreement with respect to the import prohibitions on fresh meat of poultry and eggs from 
countries reporting LPNAI. 
4.4.2  Article 3 of the SPS Agreement India appealed the Panel's findings that India's AI measures are inconsistent with Article 3.1 of the 
SPS Agreement and that India is not entitled to benefit from the presumption of consistency of its 
AI measures with the other relevant provis ions of the SPS Agreement and the GATT 1994, 
as provided for under Article 3.2 of the SPS Agreement. India claimed that the Panel exceeded the 
permissible scope of consultation with the OIE as  prescribed by Article 11.2 of the SPS Agreement 
and Article 13.2 of the DSU, and that the Panel acted inconsistently with its duty to make an 
objective assessment of the matter within the mean ing of Article 11 of the DSU by: (i) failing to 
conduct its own assessment of the meaning of the OIE Code, including by failing to do so in 
accordance with customary rules of treaty interpretation; (ii) disregarding arguments and evidence provided by India pertaining to the meaning of the OIE Code; and (iii) reaching findings regarding the meaning of the OIE Code that lack support in the evidence on the record.  
4.4.2.1  Whether the Panel erred under Article 11.2 of the SPS Agreement and 
Article 13.2 of the DSU in its consultation with the OIE 
India claimed that Article 11.2 of the SPS Agreem ent limits the permissible scope of a panel's 
consultation with an international organization to scientific and technical issues. According to India, 
because the Panel consulted with the OIE not only concerning the evidence submitted by the parties, but also regarding the interpretation of  the OIE Code, the Panel exceeded the permissible 
scope of questioning allowed under Article 11.2 of the SPS Agreement and Article 13.2 of the DSU.  
The Appellate Body observed that, as explained in prior Appellate Body jurisprudence, Article 13 
confers broad discretion to panels in their consul tations with experts. The Appellate Body further 
observed that, in the SPS context, there are specia l or additional rules set forth in Article 11.2 of 
the SPS Agreement. Although Article 11.2 indicate s that the reason a panel "should seek advice 
from experts" is because the dispute "involve[s] sci entific or technical issues", the Appellate Body 
understood this language as a reference to the types of issues common to SPS disputes, and not 
to suggest a limitation as to the scope or nature  of questioning that would be permitted in such 
disputes. Thus, while the language of Article 11.2 indicates that experts should be consulted in disputes involving scientific or technical issues, it does not mandate that the advice sought be 
confined to such issues. The Appellate Body considered this to be consonant with the scope and 
nature of questioning permitted under Article 13 of the DSU. On that basis, the Appellate Body did 
not consider that either Article 11.2 of the SPS Agreement or Article 13 of the DSU imposes constraints on a panel's consultations with experts, including with any relevant international 
organization. Rather, the Appellate Body considered that these provisions apply cumulatively and 
harmoniously in SPS disputes, and reinforce the comprehensive nature of a panel's fact-finding powers. The Appellate Body therefore found that the Panel did not act inconsistently with 
Article 11.2 of the SPS Agreement or Article 13.2 of the DSU in consulting with the OIE regarding 
the meaning of the OIE Code.  
4.4.2.2  Article 11 of the DSU 
India also claimed that the Panel committed errors inconsistent with its duty to make an objective 
assessment of the matter under Article 11 of the DS U. India contended that the Panel failed to 
make an objective assessment of the matter because it simply relied on the interpretation provided by the OIE. The Appellate Body consid ered that, although the Panel referred to and 
accorded weight to the OIE's responses to its questions, it indicated in each instance that its 
conclusions were also based on an examination of the wording or text of the relevant WT/AB/26 
 
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  recommendations of the OIE Code. The Appellate Body therefore found it clear that the Panel's 
conclusions were founded on its own assessment of the meaning of relevant provisions of the OIE Code. In addition, the Appellate Body noted that Annex A(3)(b) to the SPS Agreement provides that the relevant international standards for purposes of animal health and zoonoses are 
those developed under the auspices of the OIE. Because Chapter 10.4 of the OIE Code reflects the 
relevant international standard in respect of AI, and therefore serves as the benchmark against which India's AI measures had to be compared in order to determine whether they are "based on" 
or "conform to" that standard, it was incumbent on the Panel to discern the meaning of the 
OIE Code in order to determine whether India's AI measures satisfy Articles 3.1 and 3.2 of the SPS Agreement. The Appellate Body explained that , in conducting such an assessment, a panel 
may be guided by any relevant interpretative principles, including relevant customary rules of 
interpretation of public international law. In addition, a panel may find additional sources to be 
useful in discerning the meaning of the internatio nal standard. The Appellate Body did not consider 
that the Panel, in connection with its own assessment of the meaning of the OIE Code, could be 
faulted for engaging in a consultation with, and according weight to the views of, the very 
international organization under whose auspices that international standard was developed. The Appellate Body therefore did not consider that the Panel delegated its adjudicative function to 
the OIE in a manner inconsistent with its duties under Article 11 of the DSU. 
India further argued that the Panel failed to conduct its assessment of the meaning of the 
OIE Code in accordance with customary rules of treaty interpretation. The Appellate Body considered this aspect of India's claim as an allegation that the Panel acted inconsistently with 
Article 11 of the DSU by failing explicitly to address the applicability of customary rules of 
treaty interpretation when it assessed the mean ing of relevant provisions of the OIE Code. 
The Appellate Body did not see that India had demonstrated why or how the Panel's analysis 
departed from a proper application of the interpretative rules relied upon by India, or how, if 
properly applied, such rules would have produc ed a different outcome regarding the meaning of 
the OIE Code. Recalling its conclusions that the Panel expressly rejected India's proposed 
interpretation of Chapter 10.4, and that the Pane l conducted its own assessment and did not err in 
according weight to the views of the OIE, the Appellate Body did not consider that India had 
demonstrated what interpretative error the Panel allegedly committed that resulted in an incorrect 
understanding of Chapter 10.4 of the OIE Code. The Appellate Body therefore rejected India's 
claim that the Panel acted inconsistently with its duties under Article 11 of the DSU by failing to 
conduct its own assessment of the meaning of the OIE Code, including by failing to do so in accordance with customary rules of treaty interpretation. 
India also contended that the Panel acted incons istently with Article 11 of the DSU because it 
failed expressly to address India's arguments regarding inconsistencies in the OIE's answers in respect of the meaning of the OIE Code, and improperly disregarded other arguments and 
evidence submitted by India concerning the prac t i c e  o f  o t h e r  c o u n t r i e s ,  a s  w e l l  a s  p r e v i o u s  
positions taken by the United States, with respect to AI. The Appellate Body considered that India had not explained why the Panel's failure expressly to address these arguments materially undermined the objectivity of the Panel's analysis. Rather, India seemed to be rearguing positions 
on appeal that it had put to the Panel, but whic h the Panel did not accept. Regarding the practice 
of other countries, the Appellate Body found that India had not explained why express consideration of the instances it identified before the Panel was necessary to ensure the objectivity 
of the Panel's assessment, and noted that the fact that one or several countries had adopted a 
particular measure does not mean that such measure is based on, or conforms to, the relevant international standard. Thus, the Appellate Body  concluded that, even if the Panel did not 
expressly address all of India's arguments and eviden ce in this regard, this was not so material as 
to undermine the objectivity of the Panel's analysis. 
Finally, the Appellate Body addressed India's claim that the Panel failed to make an objective 
assessment of the matter in accordance with Article 11 of the DSU by reaching findings 
regarding the meaning of the OIE Code that lacked support in the evidence on the record. 
The Appellate Body examined three instances cited by India in which the Panel allegedly failed to base its conclusions on certain evidence. The Appellate Body understood that India, by invoking 
these instances, maintained that the Panel's conclusion that the OIE Code does not envisage 
import prohibitions is not supported by evidence on the Panel record. The Appellate Body noted, however, that the fact that particular pieces of evidence may not support, or may even contradict, 
the reasoning or conclusions of the Panel does not suffice to make out a claim that the Panel's 
findings lacked a sufficient basis in the factual record. Furthermore, an appellant must WT/AB/26 
 
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  demonstrate that the error or omission is so material that it undermines the objectivity of the 
Panel's assessment of the matter before it. The Appellate Body did not consider that, merely by pointing to such evidence, India had demonstrated that the Panel failed to conduct an objective assessment of the matter under Article 11 of the DS U. The Appellate Body noted, moreover, that 
India's contentions appeared to be premised on a misreading of the Panel's conclusion.  
Having rejected each of India's claims regarding Article 11 of the DSU, the Appellate Body found 
that India had not established that the Panel acted inconsistently with its duty to conduct an 
objective assessment of the matter pursuant to Article 11 of the DSU in its assessment of the 
meaning of the OIE Code. On the basis of the fo regoing reasons, the Appellate Body upheld the 
Panel's findings that India's AI measures are inco nsistent with Article 3.1 of the SPS Agreement, 
and that India is not entitled to benefit from the presumption of consistency of its AI measures 
with other relevant provisions of the SPS Ag reement and the GATT 1994 as provided for under 
Article 3.2 of the SPS Agreement.  
4.4.3  Article 6 of the SPS Agreement 
India appealed the Panel's findings that India's AI measures are inconsistent with Articles 6.1 
and 6.2 of the SPS Agreement. India claimed that th e Panel: (i) erred in its interpretation of the 
relationship between Article 6.1 and Article 6.3 of the SPS Agreement; (ii) erred in its application 
of Article 6.2 of the SPS Agreement to India's AI measures; and (iii) failed to make an objective 
assessment of the matter, as required by Article 11 of the DSU. 
4.4.3.1  General Interpretation The Appellate Body began by considering the content and structure of Article 6 as a whole, and the 
relationship among its three paragraphs. The Appellate Body observed that Article 6 of the 
SPS Agreement establishes, through its three paragraphs, a series of obligations regarding the adaptation of SPS measures to regional conditions. The first sentence of Article 6.1 imposes on 
WTO Members a specific obligation to ensure that their SPS measures are "adapted" to the 
"sanitary or phytosanitary characteristics" of the areas from which the product originated and to which the product is destined. Among the regional conditions in respect of which adaptation is 
envisaged, the title to Article 6 refers to "Pest- or Disease-Free Areas and Areas of Low Pest or 
Disease Prevalence", which are addressed in the se cond and third paragraphs of this provision. 
The Appellate Body noted that the first sentence of Article 6.2 establishes that Members shall, "in particular", recognize the concepts of "pest- or disease-free areas and areas of low pest or 
disease prevalence." For the Appellate Body, "pest-  or disease-free areas" and "areas of low pest 
or disease prevalence" are a subset of all the SPS characteristics of an area that may call for the adaptation of an SPS measure. In the Appellate Bo dy's view, Articles 6.1 and 6.2 together accord 
prominence to the content of Article 6.2 as one particular way through which a Member can ensure 
that its SPS measures are "adapted", as required by Article 6.1. 
The Appellate Body also indicated that Article 6 does not specify any particular manner in which a 
Member must "ensure" the adaptation of its SPS measures within the meaning of Article 6.1 or 
"recognize" the concepts set out in Article 6.2. This suggests that Members enjoy a degree of latitude in determining how to do so within their domestic SPS regime. Accordingly, assessing whether or not a Member has complied with the obligations in Articles 6.1 and 6.2 will necessarily 
be a function of the nature of the claims raised by the complainant and the circumstances of each 
case. At the same time, the Appellate Body noted that compliance with the obligations in Articles 6.1 and 6.2 will be facilitated in circumstances where WTO Members put in place 
a regulatory scheme or structure that accommodates the adaptation of SPS measures on an 
ongoing basis.  
Moreover, the Appellate Body pointed out that SPS measures or regulatory schemes that explicitly 
foreclose the possibility of recognition of the conc epts of pest- or disease-free areas and areas of 
low pest or disease prevalence cannot be found to be consistent with Article 6.2. According to the Appellate Body, there is a close nexus between a Member's satisfaction of the obligation to 
recognize the concepts set out in Article 6.2, on th e one hand, and its satisfaction of the obligation 
to ensure that its SPS measures are adapted to the relevant SPS characteristics within the 
meaning of Article 6.1, on the other hand. The Appellate Body observed that Article 6.3 specifies WT/AB/26 
 
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  what must be objectively demonstrated by a Member seeking recognition of a specific area within 
its territory as a pest- or disease-free area or an area of low pest or disease prevalence. 
4.4.3.2  The relationship between Articles 6.1 and 6.3 India argued that the Panel committed legal error in  interpreting the relationship between the first 
sentence of Article 6.1 and the first sentence of Article 6.3. For India, an importing Member's 
obligation, under Article 6.1, to adapt its SPS measures to the sanitary or phytosanitary characteristics of the area of the exporting Member  arises only after an exporting Member makes a 
formal proposal under Article 6.3.  
The Appellate Body began by expressing concerns regarding certain of the Panel's statements that 
were overly broad, such as the statement that Ar ticle 6.1, first sentence, creates a "free-standing 
obligation", and that there is "no conditional language" linking such obligation to Article 6.3 or to 
an extraneous event such as the request of an ex porting Member to recognize a specific area as 
disease free. The Appellate Body considered that these statements may be seen as problematic to the extent that they suggest that each of the para graphs of Article 6 is to be read in isolation. 
To the contrary, there are important common elem ents and interlinkages among the paragraphs 
of Article 6. All three paragraphs of Article 6 ar e interconnected, addressing different aspects of 
the obligation to adapt SPS measures to regional conditions. The Appellate Body also had 
reservations about the Panel's statement that it "[did] not see how an SPS measure can be 
'adapted' to the SPS characteristics of an area where that adaptation occurs only after a measure 
is taken pursuant to a specific request for recognition made by an exporting Member." The Appellate Body was of the view that this re asoning by the Panel seems to assume that the 
"adaptation" of an SPS measure can only occur a single time, and that this must be at the time 
that such measure is adopted. For the Appellate Body, however, the general obligation to ensure 
the "adaptation" of SPS measures in Article 6.1 encompasses both a requirement to adapt 
SPS measures appropriately at the time they are adopted, as well as a requirement to adapt them 
appropriately if and when relevant SPS characteristics in relevant areas in the territory of the importing or exporting Member change or are shown to warrant an adaptation of a specific 
SPS measure. 
The Appellate Body emphasized that, while there is no explicit  conditional language linking 
Article 6.1 and Article 6.3, Article 6.1 and the re mainder of Article 6 need to be read together. 
The Appellate Body reiterated that assessing whet her a Member has complied with the obligations 
in Articles 6.1 and 6.2 will necessarily be a func tion of the nature of the claims raised by the 
complainant and the circumstances of each case. In some cases, a panel may be called upon to scrutinize whether a Member has determined that a specific area is free of disease and adapted its 
SPS measures accordingly. This may involve examining whether the importing Member received a 
request from an exporting Member to recognize an  area within its territory as "disease-free". 
In such cases, an exporting Member will be able to establish that the importing Member's failure to 
recognize the relevant concepts, make a determination in respect of that disease-free area, and 
adapt its SPS measure accordingly, is inconsistent with Articles 6.1 and 6.2 only if that exporting Member can also establish that it took the steps pr escribed in Article 6.3. The Appellate Body thus 
understood the relationship of Article 6.3 with the remainder of Article 6 to mean that, in the 
context of WTO dispute settlement proceedings, an exporting Member claiming, for example, that 
an importing Member has failed to make a determination that a specific area within that exporting Member's territory is "pest- or disease-free" – and ultimately adapt its SPS measures to that 
area – will have difficulties succeeding in a claim that the importing Member has thereby acted 
inconsistently with Articles 6.1 or 6.2, unless that exporting Member demonstrates that it has provided the necessary evidence to objectively demonstrate that such area is and is likely to 
remain pest- or disease-free, as stipulated in Article 6.3. 
However, the Appellate Body disagreed with India's argument that a Member adopting or 
maintaining an SPS measure can only be found to have breached the obligation in the first 
sentence of Article 6.1 after an exporting Member has made the objective demonstration provided 
for in Article 6.3. Rather, the Appellate Body emphasized that, even in the absence of such 
objective demonstration by an exporting Member, a Member may still be found to have failed to ensure that an SPS measure is adapted to regional conditions within the meaning of Article 6.1 in 
a situation where, for example, the concepts of pest- and disease-free areas are relevant, but such 
Member's regulatory regime precludes the recognition of such concept. The Appellate Body WT/AB/26 
 
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  therefore agreed with the Panel that "the obligations in Articles 6.1 and 6.2 are not triggered by an 
invocation of Article 6.3, as argued by India". 
The Appellate Body then noted that the paragraph in the Panel Report that India challenges on 
appeal was made in response to India's argument that the obligations in Articles 6.1 and 6.2 are 
contingent upon whether an exporting Member has made the objective demonstration provided for 
in Article 6.3, and should be understood in the light of the United States' claims, namely, that 
India's AI measures affirmatively preclude India from complying with the general obligations in 
Articles 6.1 and 6.2. Consequently, while the Appellate Body expressed some reservations about 
certain statements made by the Panel, it did not consider that they amount to a reversible error when understood in the context of this dispute.  Therefore, the Appellate Body found that the 
Panel did not err in interpreting the relationship between Article 6.1 and Article 6.3 of the 
SPS Agreement. 
4.4.3.3  The Panel's application of Article 6.2 to India's AI measures 
India also argued that the Panel committed legal error in its application of the first sentence of 
Article 6.2 of the SPS Agreement by basing its conclusion on S.O. 1663(E) rather than on the 
Livestock Act. India contended that, given that the parent legislation – Sections 3 and 3A of the Livestock Act – could recognize the concepts set out in the first sentence of Article 6.2, the Panel 
should not have based its conclusion on S.O. 1663(E), which is the delegated legislation.  
In assessing this claim of error, the Appellate Bo dy began by recalling that the Panel defined the 
measures at issue in this dispute as "India's AI measures, which are those measures that 'prohibit the importation of various agricultural products into India from those countries reporting [NAI]'". 
The Appellate Body further recalled that the Panel found that India maintains its AI measures 
through, inter alia , the following legal instruments: (i) the Livestock Act; and (ii) S.O. 1663(E). 
The Appellate Body pointed out that, on appeal, India did not challenge the Panel's 
characterization of the measures at issue. Thus, given the manner in which the Panel defined the 
measures at issue, the Panel could not have prop erly answered the question of whether India's 
AI measures "recognize" the concepts of AI-free or low AI prevalence areas with reference to the 
Livestock Act alone . Rather, answering this question re quired the Panel to scrutinize the 
AI measures as a whole, including the content of S.O. 1663(E). Therefore, the Appellate Body 
disagreed with India's argument that, given that th e parent legislation – Sections 3 and 3A of the 
Livestock Act – could recognize the concepts set out in the first sentence of Article 6.2, the Panel 
should not have based its conclusion on S.O. 1663(E), which is the delegated legislation. 
India additionally argued that the Panel should  not have relied on the delegated legislation 
because, "pursuant to the Panel's own analysis", India is only required to "recognize" the concepts 
at issue and is thus not required to "implement" such concepts in its domestic measures. 
The Appellate Body considered that India was merely recasting two of its previous arguments with which the Appellate Body had already disagreed . The Appellate Body also examined certain 
passages from the Panel Report and concluded that the distinction between the obligation to 
"recognize" and the obligation to "implement" is one created by India, and not one that is reflected 
in the Panel's findings. The Panel did not find an inconsistency with Article 6.2 on the basis that India had failed to "implement" the concept of disease-free areas. 
For the foregoing reasons, the Appellate Body found that the Panel did not err in its application of 
Article 6.2 of the SPS Agreement by not relying sole ly on Sections 3 and 3A of the Livestock Act in 
assessing whether India recognizes the concepts of disease-free areas and areas of low disease 
prevalence in respect of AI. 
4.4.3.4  Article 11 of the DSU India also claimed that the Panel acted inconsistently with its duty to make an objective 
assessment of the matter under Article 11 of the DS U. First, India argued that the Panel acted 
inconsistently with this provision by basing its conclusion on the "non-implementation" of the concepts listed in Article 6.2 and thereby ruling on a claim not argued by the United States.  
The Appellate Body began by noting that India had not "clearly articulat[ed] and substantiat[ed] 
with specific arguments" why the alleged error has a bearing on the objectivity of the Panel's WT/AB/26 
 
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  assessment. Moreover, the Appellate Body considered that India's claim of error rested on the 
premise that the Panel's finding of inconsistency with Article 6.2 was based on a failure by India to "implement" the concepts listed in that provision, an assertion also made by India in its claim that the Panel erred in applying Article 6.2 to India's AI measures. Yet, a claim that a panel failed to 
comply with its duties under Article 11 of the DSU must stand by itself and should not be made 
merely as a subsidiary argument in support of a claim that a panel failed to apply correctly a provision of the covered agreements. For these reas ons, the Appellate Body rejected India's first 
claim of error under Article 11 of the DSU. 
In its second claim under Article 11 of the DSU, India argued that the Panel acted inconsistently 
with this provision by disregarding critical evid ence submitted by India. The evidence that India 
claimed had been disregarded by the Panel is a statement in Panel Exhibit IND-121 made by an 
Indian official to a US official in a letter da ted 28 January 2010. The Appellate Body pointed out 
that India had not explained why the Panel's fa ilure explicitly to discuss the content of 
Panel Exhibit IND-121 is so material that it has a bearing on the objectivity of the Panel's factual 
assessment. Moreover, the Appellate Body emphasiz ed that, even if the statement in that letter 
could be understood as "recognition" of the concepts  listed in Article 6.2 of the SPS Agreement – a 
point that the United States strongly contested – it was difficult to conceive how such a statement 
by an individual official of the DAHD could have any impact on the Panel's assessment of a 
regulatory instrument (i.e. S.O. 1663(E)) that was subsequently issued pursuant to the Livestock Act. For these reasons, the Appellate Body rejected India's second claim of error under Article 11 of the DSU. 
For the foregoing reasons, the Appellate Body found  that India had not established that the Panel 
acted inconsistently with its duty to conduct an objective assessment of the matter pursuant to Article 11 of the DSU in its analysis of the consistency of India's AI measures with Article 6.2. 
Having found that India had not demonstrated that the Panel erred in its assessment of the 
United States' claims under Article 6 of the SPS Agreement, the Appellate Body upheld the Panel's findings that India's AI measures are inconsistent with Articles 6.1 and 6.2 of the SPS Agreement. 
4.4.4  Articles 5.6 and 2.2 of the SPS Agreement 
India appealed the Panel's findings that India's AI measures are inconsistent with Article 5.6 and 
Article 2.2. India claimed that the Panel erred in its application of Article 5.6 of the SPS Agreement to India's AI measures. Additionally, India claimed that the Panel failed to make an objective 
assessment of the matter, as required by Article 11 of the DSU. 
4.4.4.1  Whether the United States had id entified alternative measures that would 
achieve India's appropriate level of protection 
India argued that, before the Panel, the United States failed to present a prima facie  case to 
support its claim under Article 5.6 of the SPS Agr eement. According to India, the United States 
identified India's appropriate level of protecti on based on India's domestic control measures, 
instead of based on the measures at issue. Therefor e, the United States ultimately did not fulfil its 
burden of presenting an alternative measure that fulfils India's appropriate level of protection. 
Before assessing the specific claim of error raised by India, the Appellate Body described how the 
issue of the identification of India's appropriat e level of protection developed during the Panel 
proceedings. The Appellate Body noted that before the Panel the United States had argued, based 
on India's "domestic surveillance and control me asures" (particularly, India's NAP 2012), that 
India's appropriate level of protection is "qui te low". In response, India submitted that the 
United States' claim had no merit because the Unit ed States had identified the wrong appropriate 
level of protection by referring to the NAP 2012 rather than S.O. 1663(E). The Panel undertook a 
review of India's written and oral submissions, an d noted that India had alluded to the "prevention 
of ingress of LPNAI and HPNAI" and to "country freedom from NAI" as its appropriate level of 
protection. As it was not convinced that either of these represented India's appropriate level of 
protection, the Panel proceeded to examine other evidence on the record, including the measures 
at issue, in order to determine India's appropriate level of protection with greater precision. Having 
done so, the Panel concluded that India's appropriate level of protection is " very high  or very WT/AB/26 
 
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  conservative ". The Appellate Body highlighted that India did not challenge on appeal the specific 
level of protection identified by the Panel as India's appropriate level of protection. 
In the light of these considerations, the Appellate Body considered that the Panel correctly decided 
not to limit its analysis under Article 5.6 to the United States' argumentation regarding India's 
appropriate level of protection. Rather, in line with the understanding that a responding Member 
has an obligation to specify the level of SPS protection it wishes to achieve, the Panel requested India to identify its appropriate level of protecti on. The Appellate Body also highlighted that the 
Panel correctly did not defer completely to India's characterization of its own appropriate level of 
protection, but, instead, decided to ascertain such level of protection on the basis of the totality of 
the evidence on the record. For the Appellate Bo dy, these considerations showed that the Panel 
adopted a proper approach in adjudicating the claim under Article 5.6 of the SPS Agreement. 
For the foregoing reasons, the Appellate Body found that the Panel did not err in finding that the 
United States had identified alternative measures that would achieve India's appropriate level of protection. 
4.4.4.2  Whether the Panel erred by failing to  identify the proposed alternative measures 
with precision 
India argued that, since the Panel did not identify the proposed alternative measures with 
precision, it committed legal error under Article 5.6 of the SPS Agreement by concluding that the 
alternative measures would fulfil India's approp riate level of protection. India contended that 
the Panel should have identified the product specific recommendations in the OIE Code for the corresponding product in question and the applicab ility of the same in the event of the occurrence 
of HPNAI or NAI.  
The Appellate Body understood India to be arguing that the Panel failed to specify the 
product-specific recommendations in the OIE Code that apply to each of the product categories for 
which importation is prohibited under S.O. 1663(E) upon the occurrence of HPNAI or LPNAI. 
With respect to this argument, the Appellate Bo dy observed that the recommendations in the 
OIE Code that were identified by the United States as constituting the relevant alternative 
measures were reproduced by the Panel in a table in its Report, in which the United States set out 
the eight product categories in S.O. 1663(E) for which there are corresponding product-specific recommendations in Chapter 10.4 of the OIE Code . In respect of each product category, the 
United States identified the specific recommendation or recommendations that are potentially 
applicable, depending on the specific product and the particular disease condition at issue. 
Thus, the Appellate Body considered that the references to the product-specific recommendations in the table cover all of the applicable recommendations from Chapter 10.4 of the OIE Code, 
whether the imports emanate from a country, zone, or compartment, and whether that country, 
zone, or compartment is NAI free, HPNAI free (meaning that LPNAI may be present), or regardless of its NAI status. In these circumstances, the Ap pellate Body did not see grounds for India's claim 
that the Panel did not identify the proposed alte rnative measures with precision, and therefore 
found that the Panel did not fail to identify the alternative measures with precision. 
4.4.4.3  Article 11 of the DSU India also claimed that the Panel acted inconsistently with its duty to make an objective 
assessment of the matter under Article 11 of the DSU.  First, India argued that the Panel failed to 
analyse India's defence under Article 5.6 of the SPS Agreement and therefore failed to make an objective assessment of the matter. 
The Appellate Body considered that India's first claim under Article 11 of the DSU was premised on 
an argument that the United States failed to establish a prima facie  case under Article 5.6 of the 
SPS Agreement because the United States sought to identify India's appropriate level of protection 
as being "quite low" on the basis of the NAP 201 2. In the Appellate Body's view, India's claim 
under Article 11 was indistinguishable from its claim with respect to the Panel's application of Article 5.6 to India's AI measures, and did not "s tand by itself". Therefore, the Appellate Body 
dismissed India's claim under Article 11 of the DSU. WT/AB/26 
 
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  In its second allegation, India argued that the Pa nel acted inconsistently with Article 11 of the DSU 
because it ruled on a claim that was not argued by the United States. According to India, the 
United States limited its arguments and evidence under Article 5.6 to countries notifying LPNAI and did not challenge the application of S.O. 1663(E) to countries notifying HPNAI.  
The Appellate Body did not consider that Indi a had substantiated its contention that the 
United States' claim under Article 5.6 with respect to India's AI measures was limited to the imposition of import prohibitions upon occurrence of LPNAI, and that the Panel erred under 
Article 11 of the DSU in finding otherwise. The Appe llate Body pointed out that the product-specific 
recommendations in the OIE Code that the United  States relied upon as reasonably available 
alternative measures included recommendations that apply not only in respect of occurrences of LPNAI, but also in respect of countries regardless  of their NAI status, which could apply to imports 
from countries reporting HPNAI. Thus, these recommendations address situations in which both 
HPNAI and LPNAI may be present. The Appella te Body, therefore, did not see that the 
United States limited its claim in the way that India argued. 
For the foregoing reasons, the Appellate Body found  that India had not established that the Panel 
acted inconsistently with its duty to conduct an objective assessment of the matter pursuant to Article 11 of the DSU in its analysis of the consistency of India's AI measures with Article 5.6 of 
the SPS Agreement. 
In the light of its analysis of India's appeal, th e Appellate Body upheld the Panel's finding that 
India's AI measures are inconsistent with Article 5.6 of the SPS Agreement because they are significantly more trade restrictive than required to achieve India's appropriate level of protection, 
with respect to the products covered by Chapter 10.4 of the OIE Code. Having upheld the Panel's 
finding under Article 5.6, the Appellate Body fo und it unnecessary to address India's request for 
reversal of the Panel's finding that India's AI measures are consequentially inconsistent with 
Article 2.2 of the SPS Agreement. 
4.4.5  Article 2.3 of the SPS Agreement India raised three claims under Article 11 of the DSU challenging certain aspects of the Panel's 
assessment of the United States' claim under Article 2.3, first sentence, of the SPS Agreement. 
India requested reversal of the Panel's finding that there is insufficient evidence on the record to support a finding that LPNAI is exotic to India, as well as its finding that the discrimination that India maintains, through its AI measures, against foreign products on account of LPNAI is arbitrary 
and unjustifiable, contrary to Article 2.3, first sentence. Specifically, India asserted that the Panel 
acted inconsistently with Article 11 of the DSU in  its consultations with individual experts on 
India's disease situation in respect of LPNAI as pa rt of its assessment of the United States' claim 
concerning the second "form" of alleged discrimination, namely that India imposes bans on 
imported products on account of LPNAI, while India itself does not even maintain a domestic surveillance regime that would result in the detection of LPNAI in India. 
Before addressing India's claims under Article 11 of the DSU, the Appellate Body noted that the 
Panel, following the analytical approach adopted by the compliance panel in Australia – Salmon 
(Article 21.5 – Canada) , analysed separately the three elements of a violation of the first sentence 
of Article 2.3 in a sequential order, beginning wi th an examination of whether India's AI measures 
discriminate against imported products, before considering whether such discrimination is arbitrary 
or unjustifiable, and concluding with an analysis of the issue of whether identical or similar conditions prevail in the territories of the United  States and India. The Appellate Body observed 
that the three elements identified in the first sent ence of Article 2.3 inform each other, such that 
the analysis of each element cannot be undertaken in  strict isolation from the analysis of the other 
two elements. Thus, while a sequential analysis  of distinct elements may provide a useful 
framework within which to scrutinize a particular measure's conformity with the first sentence of 
Article 2.3, the use of such a framework does not,  in the Appellate Body's view, alter the content 
of the examination required or affect the overall burden of proof that is borne by a complainant under that provision. The Appellate Body also observed that the text of Article 2.3, first sentence, 
does not mandate the particular order of analysis adopted by the Panel and that, logically, 
identifying the relevant conditions, and assessing whether they are identical or similar, will often provide a good starting point for an analysis under Article 2.3, first sentence. WT/AB/26 
 
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  India alleged, first, that the Panel acted inconsistently with Article 11 of the DSU because the 
"terms of reference" of the Panel's consultations with the individual experts went beyond the scope of the OIE Code. Specifically, India submitted that Article 1.6.1 of Chapter 1.6 of the OIE Code recognizes five diseases for which a country has to submit documentary evidence that is evaluated 
by the OIE in order to receive official recognition of disease-free status. Highlighting that this 
procedure is not applicable in respect of other OIE-listed diseases, including AI, India submitted that its assertion that it is free from LPNAI coul d not properly have been subject to any technical 
or scientific evaluation by the OIE or individual experts. By requiring the individual experts to 
review the evidence submitted by India to support its claim that it is free from LPNAI, India alleged that the Panel incorrectly interpreted and applied Chapter 1.6 of the OIE Code.  
The Appellate Body recalled that a panel's duties are set out in Article 11 of the DSU, which 
requires a panel to make an objective assessment of the facts of the case, including an 
assessment of whether the evidence on the record supports a party's assertion. Noting that, in the 
context of these dispute settlement proceedings, it was India's assertion that it was LPNAI free, 
the Appellate Body considered that the Panel wa s required, by the terms of Article 11 of the 
DSU, to assess whether India's assertion was supported by the evidence on the record. 
The Appellate Body noted that Chapter 1.6 of the OIE Code does not prescribe duties and 
obligations for WTO panels, and it cannot override the text of Article 11 of the DSU, which sets out 
the function of WTO panels and requires a panel to, inter alia , make an objective assessment of 
the facts of the case. The Appellate Body, theref ore, did not accept India's argument that, by 
virtue of the OIE Code, the Panel was required to accept as definitive India's self-assessment of 
being LPNAI free, and rejected India's first claim under Article 11 of the DSU. 
India's second claim of error under Article 11 of th e DSU related to the allocation of the burden of 
proof by the Panel. Specifically, India alleged that : the Panel's questions to the individual experts 
erroneously shifted the burden of proof onto Indi a; the Panel erred in concluding that India had 
the burden of proving that LPNAI is exotic to India;  and the Panel erred in failing to find that India 
had discharged any burden of proof that it bore by  establishing that it has never reported to the 
OIE an occurrence of LPNAI within its territory. As  to India's first ground, the Appellate Body was 
of the view that, given the broad discretion that pa nels enjoy in consulting with experts, the mere 
posing of questions to individual experts does not, in and of itself, constitute a panel's allocation of 
the burden of proof as between the parties to a di spute. Moreover, noting that the questions posed 
by the Panel to the individual experts concerne d the arguments and evidence submitted by both 
India and the United States, the Appellate Body disagreed with India that the Panel's questions 
resulted in the United States' arguments and evidence with respect to this issue not being 
evaluated at all. 
With respect to India's argument that the Panel erred in concluding that India had the burden of 
proving that LPNAI is exotic to India, the Appellate  Body recalled that, with respect to claims under 
the SPS Agreement, the initial burden lies on the complaining party, which must establish a 
prima facie case that the respondent's SPS measure is inconsistent with a particular provision of 
the SPS Agreement. Once a prima facie case has been made, the defending party bears the 
burden of rebutting it. The Appellate Body thus agreed with the Panel that a responding party 
asserting a fact is responsible for providing proof thereof. In the present dispute, the 
Appellate Body recalled that the United States claimed before the Panel that India's measures 
arbitrarily or unjustifiably discriminate against imported products by banning them from India 
following detection of LPNAI in the exporting country, while India does not even maintain 
surveillance requirements that would result in  detection of LPNAI cases occurring in India's 
domestic poultry flocks.
 The Appellate Body also recalled the United States' explanation that 
India's AI measures are discriminatory not because LPNAI incidents have occurred in India, but 
because India's surveillance regime for LPNAI is inadequate, resulting in a situation where controls on trade in domestic products due to domestic LPNAI will not be imposed, because LPNAI will not 
be detected. The Appellate Body observed that India, on the other hand, did not make arguments 
in relation to whether or not its AI measures are discriminatory per se , but, instead, stressed that 
LPNAI is exotic to India and that, therefore, the risk associated with the introduction of LPNAI 
means that India is fully justified in prohibiting imports of poultry and poultry products from 
countries upon the occurrence of LPNAI.  
Based on the parties' positions before the Panel,  the Appellate Body considered that the factual 
assertion that LPNAI is exotic to India was the crux of India's rebuttal with respect to all three 
elements under the first sentence of Article 2. 3, and not an element of the United States' WT/AB/26 
 
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  prima facie case with respect to the second form of discrimination. In this regard, 
the Appellate Body also referred to several Panel findings in the course of its overall analysis, namely: that the risks against which India is protecting (i.e. LPNAI) constitute conditions that are similar in India and other Members (including the United States); that India treats domestic and 
imported products differently with respect to the risk of LPNAI, depending on whether that risk 
originates within India or in another Member; and that India's domestic surveillance regime is not adequate to detect reliably LPNAI. The Appellate Body noted that India did not appeal any of these 
findings, and that it did not take issue with the Panel's statement that, without a suitable 
surveillance system capable of reliably detecting LPNAI, it is difficult to establish conclusively the absence of LPNAI within the territory of India. Re ferring to the Panel's analysis, together with the 
unappealed findings by the Panel, the Appellate Body did not consider that the Panel acted 
inconsistently with Article 11 in concluding that the United States had discharged its burden of 
establishing its prima facie case. Noting that the central factual pillar of India's efforts to rebut this 
case was its assertion that LPNAI was exotic to its territory, the Appellate Body rejected India's 
argument that the Panel acted inconsistently with Article 11 of the DSU in finding that India has 
the burden of proving that LPNAI is exotic to India. 
With respect to the third issue raised by India – i.e. whether the fact that India had never reported 
to the OIE an occurrence of LPNAI within its territory was sufficient for the Panel to conclude that 
LPNAI is exotic to India – the Appellate Body considered that this was a repackaging of India's argument that its own assertion of LPNAI freedom should have been accepted as a fact even in the absence of scientific evidence on the record to support it. Recalling its finding that the Panel was 
not obligated by Article 1.6.1 of the OIE Code to accept as conclusive India's alleged 
"self-declaration" of LPNAI freedom, the Appellate Body rejected India's argument. 
India's third claim under Article 11 of the DSU wa s that the questions posed by the Panel to the 
individual experts amounted to an improper delega tion to the experts of the factual determination 
of whether LPNAI is exotic to India. The Appellate Body noted that India's appeal was restricted to the scope of the Panel's consultations with the indi vidual experts, i.e. the questions posed to the 
individual experts, and not the Panel's use of, or  reliance upon, the responses provided by those 
experts. The Appellate Body did not see how the Pa nel's questions, in and of themselves, could be 
seen as a delegation by the Panel of its role as  the assessor of facts under Article 11 of the DSU. 
Moreover, the Appellate Body observed that India had not explained how the mere posing of 
questions amounted to a lack of objectivity on the part of the Panel. Finally, although India's claim 
was that the Panel improperly "delegated" the factual determination of whether LPNAI is exotic to India, the Appellate Body observed that, ultimately, the Panel did not make a determination on 
this factual issue; instead, it simply ruled that  India had not presented arguments and evidence to 
substantiate the factual assertion that it ha d made. The Appellate Body therefore rejected 
India's claim. 
Having rejected each of the three claims of error put forth by India, the Appellate Body found that 
India had not established that the Panel acted inconsistently with its duty to conduct an objective assessment of the matter pursuant to Article 11 of  the DSU in its assessment and findings with 
respect to the United States' claim relating to the second "form" of discrimination under 
Article 2.3, first sentence, of the SPS Agreement and, more specifically, in its consultations with 
the individual experts regarding the issue of whether LPNAI is exotic to India, or by requiring India 
to prove that LPNAI is exotic to India. The Appellate Body thus upheld the Panel's findings that 
India's AI measures are inconsistent with Article 2.3, first sentence, of the SPS Agreement because 
they arbitrarily or unjustifiably discriminate between WTO Members where identical or similar 
conditions prevail. 
4.5  Appellate Body Report, Peru – Additional Duty on Im ports of Certain Agricultural 
Products , WT/DS457/AB/R 
This dispute concerned additional duties impose d by Peru on imports of certain agricultural 
products (certain types of imported rice, sugar, maize, and milk) as well as the relationship 
between WTO rules and the Peru – Guatemala fr ee trade agreement (FTA) and the question of 
whether Guatemala acted contrary to its good faith obligations under the DSU when it initiated these proceedings. 
The additional duties are determined using a mechanism known as the Price Range System 
(Sistema de Franja de Precios , PRS). The PRS operates on the basis of the difference between: WT/AB/26 
 
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  (i) a floor price and a ceiling price, and (ii) a reference price. The floor and ceiling prices are, 
respectively, averages of international prices in a specified international market over a recent past period of 60 months. The reference price is an average of international price quotations in the same international market over a recent past period  of two weeks. An additional duty is applied on 
the transaction value of imports when the reference price is below the floor price. The PRS also 
provides for tariff rebates when the reference price is higher than the ceiling price.  
Before the Panel, Guatemala claimed that Peru maintains: (i) "variable import levies" and 
"minimum import prices", or "similar border measures", prohibited under footnote 1 of Article 4.2 
of the Agreement on Agriculture; and (ii) "other du ties or charges" inconsistent with Article II:1(b) 
of the GATT 1994. Moreover, Guatemala claimed that Peru acted inconsistently with Articles X:1 
and X:3(a) of the GATT 1994, respectively, by: (i) failing to publish certain essential elements of 
the measure; and (ii) administering the PRS in a manner that is not reasonable. Guatemala raised 
alternative claims under Articles 1, 2, 3, 5, 6, and 7 of the Customs Valuation Agreement in the event the Panel considered the additional duties resulting from the PRS to be ordinary customs 
duties.  
For its part, Peru requested the Panel to find that Guatemala did not initiate the dispute in good 
faith consistently with Articles 3.7 and 3.10 of the DSU because Guatemala allegedly accepted the 
maintenance of the PRS in the FTA signed between Peru and Guatemala on 6 December 2011. 
Peru further asserted that the additional duties resulting from the PRS are: (i) "ordinary customs duties" within the meaning of the first sentence  of Article II:1(b) of the GATT 1994; and (ii) 
outside the scope of Article 4.2 of the Agreemen t on Agriculture and the second sentence of 
Article II:1(b) of the GATT 1994. Peru contended that it complied with the obligations under 
Articles X:1 and X:3(a) of the GATT 1994, and that Guatemala's claims under the Customs Valuation Agreement should be rejected because this agreement does not apply to specific duties. 
Finally, in the event the Panel found that the measure at issue is not WTO-consistent, Peru 
contended that this would generate an incons istency between the WTO covered agreements and 
the FTA, and that, in such a case, the terms of the FTA should prevail. 
The Panel found no evidence that Guatemala had engaged in the panel proceedings in a manner 
contrary to the good faith obligations contained in Articles 3.7 and 3.10 of the DSU. Regarding substantive aspects of the dispute, the Panel found  that the additional duties resulting from the 
PRS are: (i) "variable import levies", or at least a "similar border measure", inconsistent with 
Article 4.2 of the Agreement on Agriculture; and (i i) "other duties or charges" inconsistent with 
Article II:1(b) of the GATT 1994. Having made these findings, the Panel exercised judicial economy with respect to Guatemala's claims under Articles X:1 and X:3(a) of the GATT 1994. The 
Panel also did not consider it appropriate to address Guatemala's alternative claims under the 
Customs Valuation Agreement, which were conditional on a finding that the duties resulting from the PRS were ordinary customs duties. Finally, with regard to Peru's "defence" that the parties had 
modified between themselves, by means of th e 2011 FTA, any provision of the WTO covered 
agreements prohibiting the PRS, the Panel noted that the FTA at issue had not yet entered into 
force, and therefore declined to rule on whether th e parties could, by means of the FTA, modify as 
between themselves their rights and obligations under the covered agreements. 
4.5.1  Articles 3.7 and 3.10 of the DSU 
4.5.1.1  New arguments or claims raised on appeal Guatemala alleged that Peru's arguments on appeal that Guatemala acted inconsistently with 
Articles 3.7 and 3.10 of the DSU constituted "n ew arguments" or "new claims". Guatemala 
asserted that Peru was not appealing an issue of law covered in the Panel Report or legal interpretations developed by the Panel within th e meaning of Article 17.6 of the DSU, and that 
these new arguments or claims were, therefore, "outside the competence of the Appellate Body 
to consider".  
Based on its review of the Panel Report and the participants' submissions on appeal, the Appellate 
Body found that the arguments or claims challenged by Guatemala as "new" in fact related to legal 
issues no different from those that were before the Panel and that were addressed by the Panel in 
its Report. These related to the scope of Guatemala's good faith obligations under the DSU, the legal significance of international instruments that had not yet entered into force, and the extent WT/AB/26 
 
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  to which Members may waive their rights to institute WTO dispute settlement proceedings. The 
Appellate Body further found that  Peru's arguments on good faith under Articles 3.7 and 3.10 did 
not require the Appellate Body to solicit, receive, and review new facts; did not adversely affect Guatemala's due process rights; and were thus properly raised on appeal. 
4.5.1.2  Good faith 
Peru appealed the Panel's conclusion that ther e was "no evidence that Guatemala brought these 
proceedings in a manner contrary to good faith". Peru argued that Guatemala explicitly  waived its 
right to bring a case with respect to the PRS when it agreed in the FTA that Peru may maintain the 
PRS. Alternatively, Guatemala waived its rights by necessary implication  since the 
WTO-consistency of the PRS had been the "subject of disagreement" between Peru and Guatemala, and they had agreed in the FTA th at Peru may maintain its PRS, with the FTA 
prevailing over WTO agreements in the event of an inconsistency. Thus, Guatemala acted 
inconsistently with its good faith obligation under Articles 3.7 and 3.10 of the DSU when it initiated the present proceedings. 
Guatemala responded that the Panel was correct in finding that the FTA does not contain a 
waiver – implicitly or by necessary implication – of Guatemala's right to challenge the PRS through dispute settlement. Guatemala contended, among other things, that: (i) the Panel correctly relied 
on the fact that the FTA is not in force, as agreements allegedly containing a waiver must be in 
force for such waiver to have any effect; (ii) ascertaining the proper interpretation of the FTA would go beyond the Panel's jurisdiction; and (iii) a waiver with respect to a particular dispute could only be made through a mutually agreed solution or through decisions by the appropriate 
organs of the WTO. 
The Appellate Body stated that it was called upon to determine whether Guatemala acted contrary 
to good faith under Articles 3.7 and 3.10 of the DSU on account of the alleged relinquishment of its 
right to challenge the PRS before the WTO dispute settlement mechanism. In EC – Bananas III 
(Article 21.5 – Ecuador II / Article 21.5 – United States ), the Appellate Body held that 
"the relinquishment of rights granted by th e DSU cannot be lightly assumed", and that 
"the language in the Understandings [on Bananas] must clearly reveal that the parties intended to 
relinquish their rights". Thus, "if a WTO Member has not clearly stated that it would not take legal action with respect to a certain measure, it cannot be regarded as failing to act in good faith if it challenges that measure." The Appellate Body further noted that, while Article 3.7 of the DSU 
acknowledges that parties may enter into a mutually agreed solution, Members cannot relinquish 
their rights and obligations under the DSU beyond the settlement of specific disputes.  
In this dispute, the Appellate Body did not consider  that, for purposes of the DSU, the FTA, and in 
particular paragraph 9 of Annex 2.3 thereof, constitutes a solution mutually acceptable to both 
parties within the meaning of Article 3.7 of the DS U. Aside from the fact that Peru and Guatemala 
negotiated the FTA before the initiation of the present dispute, the DSU emphasizes that 
"[a] solution mutually acceptable to the parties to a dispute" must be "consistent with the covered 
agreements". As the Appellate Body found elsewhere in its Report, however, the additional duties resulting from the PRS are inconsistent with Ar ticle 4.2 of the Agreement on Agriculture and 
Article II:1(b) of the GATT 1994. Moreover, the pa rticipants raised conflicting arguments on how 
to read paragraph 9 of Annex 2.3 to the FTA, which provides that "Peru may maintain its [PRS]", 
in the context of other relevant provisions of the FTA, so that there appears to be ambiguity as to 
whether even the FTA itself, regardless of its legal status as not yet being in force, allows Peru to 
maintain the PRS if it is found to be WTO-inconsistent.
 
The Appellate Body further noted that Peru recogn izes that Guatemala is not "procedurally barred 
from bringing a WTO claim against the PRS ". Moreover, Article 15.3 of the FTA provides that, 
"[i]n the event of any dispute that may arise under this Treaty … or the WTO Agreement , the 
complaining Party may choose the forum for settling the dispute." Thus, even from the perspective of the FTA, parties to the FTA have the right to bring claims under the WTO covered agreements to 
the WTO dispute settlement system.  
On the basis of these reasons, the Appellate Body  did not consider that a clear stipulation of a 
relinquishment of Guatemala's right to have recour se to the WTO dispute settlement system exists 
in relation to, or within the context of, the DSU. Consequently, Guatemala could not be considered WT/AB/26 
 
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  as having acted contrary to its good faith obligations under Articles 3.7 and 3.10 of the DSU when 
it initiated these proceedings to challenge th e consistency of the PRS with the WTO covered 
agreements. Therefore, the Appellate Body upheld the Panel's finding in paragraphs 7.96 and 8.1.a of the Panel Report that there is "no evidence  that Guatemala brought these proceedings in a 
manner contrary to good faith". 
4.5.2  Article 4.2 of the Agreement on Agriculture – variable import levies 
Peru raised three main claims of error in connection with the Panel's finding that the additional 
duties resulting from the PRS are "variable import levies", namely that: (i) the Panel erred in its 
assessment of the "variability" of the measure at issue; (ii) the Panel erred in its assessment of 
the "additional features" of the measure at issue; and (iii) the Panel acted inconsistently with Article 11 of the DSU when examining Guatemala' s claim under Article 4.2 of the Agreement on 
Agriculture. 
4.5.2.1  Interpretation of Article 4.2 of the Agreement on Agriculture 
Before examining Peru's claims, the Appellate Body set out its understanding of certain issues 
relating to the interpretation of Article 4.2 of the Agreement on Agriculture. The Appellate Body 
recalled that the preamble of the Agreement on Agriculture sets forth that it is necessary "to provide for substantial progressive reductions in agricultural support and protection … resulting 
in correcting and preventing restrictions and distortions in world agricultural markets". 
The Appellate Body observed that Article 4 of the Agreement on Agriculture is appropriately viewed 
as the legal vehicle for requiring the conversion into ordinary customs duties of certain market 
access barriers affecting imports of agricultural products.  
Article 4.2 of the Agreement on Agriculture prohib its Members from maintaining, resorting to, or 
reverting to, "any measures of the kind which have  been required to be converted into ordinary 
customs duties". Footnote 1 provides a list of measures covered by the obligation under 
Article 4.2. The fact that a measure results in the payment of duties that take the same form as 
ordinary customs duties does not, by itself, me an that the measure falls outside the scope of 
footnote 1. Thus, the Appellate Body found that , in order to determine whether a measure is 
among the "measures of the kind which have been required to be converted into ordinary customs 
duties", it may be necessary to conduct an in-dep th examination of the design and structure of the 
measure itself, as well as its operation, in the light of the language in Article 4.2 and footnote 1. 
Turning to the term "variable import levies", the Appellate Body explained that measures 
constituting "variable import levies" are "inherently" variable because they incorporate a scheme 
or formula that causes and ensures that levies change automatically and continuously. The Appellate Body found that this is a necessary and key element of "variable import levies" that 
distinguishes "variable import levies" from "ordinary customs duties". According to the Appellate 
Body, this is because "ordinary customs duties" may also be subject to variation. The Appellate Body noted that this variation, however, arises from discrete changes in applied tariff rates that 
occur independently, and unrelated to such scheme or formula, and usually through separate and 
specific administrative or legislative action. The Appellate Body explained that "variable import levies" may also have certain "additional features", which include "a lack of transparency and a lack of predictability in the level of duties that will result from such measures" when compared to 
the level of transparency and predictability of "o rdinary customs duties". These additional features 
are not independent or absolute characteristics that a measure must display in order to be 
considered a "variable import levy"; rather, they may serve to confirm that a measure is 
"inherently variable". Finally, the Appellate Body clarified that "variable import levies" may 
contribute to distorting the prices of imports by impeding the transmission of international prices 
to the domestic market. 
4.5.2.2  The Panel's assessment of the "variability" of the measure 
Peru argued that the Panel confused the measure at issue – i.e. the additional duties resulting 
from the PRS – with the PRS methodology to calculate the potential duty. Guatemala argued that 
drawing a distinction between the additional duti es and their calculation methodology would be 
inconsistent with the Panel's terms of reference. The Appellate Body observed that both the 
additional duties and the PRS calculation method ology were included in Guatemala's request for WT/AB/26 
 
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  the establishment of a panel, and that, as the additional duties result from the operation of the 
PRS, the PRS calculation methodology is a key co mponent of the system. The Appellate Body also 
stated that "inherent variability" must be assess ed on the basis of the overall configuration of a 
measure and the extent to which the changes are automatic, continuous, and based on an 
underlying mechanism or formula. Thus, the Appellate Body observed that the Panel was in fact 
required to examine the PRS calculation methodology when determining whether the additional duties resulting from the PRS are "variable import levies". 
Peru also argued that the additional duties at issu e do not vary with any regularity as a result of 
the PRS calculation. According to Guatemala, the fa ct that, in certain periods, the PRS did not give 
rise to a variable additional duty is not relevant to the examination of the PRS and the resulting additional duties during the periods when additional duties were imposed. Noting that Peru 
accepted that the operation of a formula to calc ulate the values for floor, ceiling and reference 
prices was inherent and automatic in the PRS, the Appellate Body stated that duties calculated based on an "inherently variable" system will themselves be "inherently variable". Moreover, the 
Appellate Body observed that the Panel's finding of "variability" was not based on the frequency of 
change in the duties. Rather, the Panel based its finding on the fact that the PRS contains a scheme or formula that causes and ensures automatic and continuous change of the applicable 
duties. The Panel also explicitly addressed the freq uency of change, stating that the fact that the 
result of the PRS calculation may be the same for some two-week periods does not mean that the PRS, as a mechanism, does not impose variability of duties. According to the Appellate Body, the frequency of change effected by a measure may be  relevant in determining whether such measure 
is "variable", but no specific frequency of change in resulting duties is required in order for a 
measure to be considered "variable" within the meaning of footnote 1 of the Agreement 
on Agriculture.  
Peru also objected to the Panel's statement that the variability imposed by the PRS cannot be 
compared to the fact that "ordinary customs duties" may occasionally vary. Peru argued that changes of both the additional duties resultin g from the PRS and "ordinary customs duties" are 
neither constant nor mechanical. Guatemala resp onded that the evidence submitted by Peru 
revealed that the variation of the additional duti es resulting from the PRS is significantly greater 
than the variation of "ordinary customs duties". Th e Appellate Body observed that the fact that a 
levy is "variable" is not sufficient for characterizing a measure as a "variable import levy" because 
an "ordinary customs duty" could also fit this description. Rather, "variable import levies" are 
distinct from "ordinary customs duties" because of the presence of an underlying scheme or formula in the measure at issue that causes those levies to change automatically and continuously. 
Thus, the Appellate Body considered that the Panel was correct in stating that the variability 
imposed by the PRS, which is the result of rules an d formulas that form part of the system and are 
applied automatically and continuously, cannot be compared to the normal variability of "ordinary 
customs duties". 
In addition, Peru contended that the Panel relied "too heavily" on "inherent variability" in finding 
that the measure is a "variable import levy". Guatemala argued that the Panel did not rely entirely on the inherent variability of the measure and that, in any event, inherent variability is the key 
criterion for the finding of a "variable import levy". The Appellate Body considered that Peru's 
argument did not find support in the Panel Report, since the Panel examined certain "additional features" of the measure at issue to confirm its finding of "inherent variability". 
Furthermore, the Appellate Body noted that the Panel's finding of "variability" based on an 
underlying formula that causes and ensures that levies change automatically and continuously is a necessary and key element for a finding of "variable import levies". Thus, the Appellate Body 
disagreed with Peru's argument that the Panel erre d by "relying too heavily" on this aspect in 
its analysis. 
Finally, Peru argued that the legal standards for "variable import levies" and "minimum import 
prices" share common characteristics, in particular, the use of a minimum or threshold price. Thus, 
the Panel's finding, that the PRS floor price does not prevent the entry of imports priced below it, 
should have led the Panel to conclude that the additional duties resulting from the PRS are not "variable import levies", nor "similar border measures". Guatemala argued that the legal standard 
for "variable import levies" does not require a minimum-price component. The Appellate Body 
recalled that "variable import levies" have not been interpreted as necessarily comprising a minimum price threshold. Although a given meas ure may contain elements that are common to WT/AB/26 
 
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  both "variable import levies" and "minimum impo rt prices", a "variable import levy" need not 
necessarily contain a certain minimum  threshold for it to be characte rized as "inherently variable". 
On the basis of the foregoing, the Appellate Body  found that Peru had not established that the 
Panel erred in its assessment of the "inherent variability" of the measure at issue. 
4.5.2.3  The Panel's assessment of the "additional features" of the measure 
With respect to the Panel's assessment of the lack of transparency and predictability of the 
measure at issue, Peru first contended that the Panel erred by conflating the ability to forecast 
duties with transparency and predictability. Gu atemala disagreed and pointed out that, while the 
rate of ordinary customs duties can change, such rates are fixed and thus predictable until such change. Given the structure, design, and operation of the PRS, and in particular the recalculation 
of the potential additional duties every two weeks,  the Appellate Body saw no error in the Panel's 
explanation that the PRS lacks transparency and pred ictability regarding the level of the additional 
duties when compared to the transparency and pred ictability afforded by ordinary customs duties. 
Peru contended that the Panel incorrectly found that the measure lacked transparency and 
predictability because  of its alleged "inherent variability". Guatemala responded that Peru may not 
design import charges whose level depends mathematically and automatically on international prices. The Appellate Body disagreed with Peru's  a r g u m e n t  t h a t ,  i n  t h i s  p a r t  o f  t h e  P a n e l ' s  
analysis, the Panel associated the lack of transp arency and predictability of the PRS with the 
"inherent variability" of the measure at issue. 
With respect to the Panel's assessment of whether the measure at issue distorts the transmission 
of international prices to Peru's market, Peru argued that the Panel failed to provide a reasonable 
basis for its finding because the Panel relied solely on a theoretical analysis. Guatemala responded 
that there is nothing "theoretical" about the Panel's analysis, and that the Panel was simply not convinced by the evidence presented by Peru. The Appellate Body disagreed with Peru's argument, 
since the Panel examined the declared objective of  the PRS; the structure and design of the PRS, 
including the short-term and medium-term effects;  and statistical evidence on sugar and maize. 
The Appellate Body noted that a panel is not required to focus its examination primarily  on 
numerical or statistical data regarding the effect s of the measure in practice. Rather, where it 
exists, evidence on the observable effects of the measure should be taken into consideration, along with information on the structure and design of the measure. The weight and significance to 
be accorded to such evidence will depend on the circumstances of each case.  
In addition, Peru argued that the Panel's analysis appears to contradict the Panel's finding that the 
measure at issue is not a "minimum import price". Guatemala considered that a measure may neutralize the transmission of international prices regardless of whether it also qualifies as a 
"minimum import price". The Appellate Body considered that even if the examination of whether a 
measure is a "variable import levy" or a "minimum import price" is related to each other, whether a measure falls within the scope of one or of another measure listed in footnote 1 of the 
Agreement on Agriculture nonetheless remains a se parate question. Thus, the Appellate Body saw 
no inconsistency in the Panel's analysis in this regard. 
Peru also contended that the Panel overlooked the fact that the PRS is incapable of preventing the 
transmission of international prices to the domestic market for all products covered because it 
operates on the basis of only four "marker products". Guatemala argued that, also for "associated 
products", the PRS ensures that international pric e fluctuations are distorted. The Appellate Body 
considered that, even if prices of "associated products" and a "marker product" were unrelated, 
Peru's argument failed to explain how an import levy, varying according to the international price 
of another agricultural product, would not distort the transmission of international prices of "associated products" to Peru's market, or how the effects of such levy could nevertheless be 
considered equivalent to the impact of an "ordinary customs duty". 
Finally, Peru contended that, in contrast to Chile's price band system, the PRS results in a close 
correlation between international and domestic prices. Guatemala responded that the differences between the PRS and Chile's price band system iden tified by Peru are inaccurate and irrelevant. 
The Panel examined in detail the elements of th e PRS, and concluded that the short-term and 
medium-term effects of the PRS are to distort the transmission of international prices to the WT/AB/26 
 
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  domestic market, differently from "ordinary customs duties". The Appellate Body observed that 
arguing that the PRS is less distortive than the Chilean measure is insufficient for a demonstration that the PRS does not distort the transmission of international prices to Peru's domestic market.  
Overall, the Appellate Body noted that Peru's appeal assigned an important role to the 
assessments of a lack of transparency and predic tability, and of transmission of international 
prices to the domestic market, within the cont ext of an analysis of whether a measure is a 
"variable import levy". Given that the "additional features" are not independent or absolute 
characteristics that a measure must display in order to be considered a "variable import levy", 
their assessment should not be given more prominence in a panel's analysis than the determination of whether a measure can be characterized as "inherently variable", which is a necessary and key element for a finding of "variable import levy".  
In the light of the foregoing, the Appellate Body found that Peru had not established that the Panel 
erred in its assessment of the "additional features" of the measure at issue within the context of the Panel's analysis of whether the measure constitutes a "variable import levy". 
4.5.2.4  Article 11 of the DSU 
Peru claimed that the Panel acted inconsistently with Article 11 of the DSU by failing to properly 
compare the measure at issue with "ordinary customs duties" and "variable import levies" when 
examining Guatemala's claim under Article 4.2 of the Agreement on Agriculture. Peru contended 
that the Panel failed to identify the relevant characteristics of an ordinary customs duty on a number of instances. Guatemala submitted that Peru's arguments address the legal standard 
applied by the Panel rather than any lack of objectivity in the Panel's assessment of the facts.  
The Appellate Body recalled that a claim that a panel has failed to conduct an "objective 
assessment of the matter before it" is a very serious allegation, and that an appellant may not effectively recast its arguments before the panel under the guise of an Article 11 claim, but must 
identify specific errors that are so material th at they undermine the objectivity of the panel's 
assessment of the matter before it. A challenge und er Article 11 of the DSU must stand by itself 
and be substantiated with specific arguments, rather than merely being put forth as a subsidiary 
argument or claim in support of a claim of a panel's failure to construe or apply correctly a 
particular provision of a covered agreement. 
The Appellate Body recalled that, although a pane l may undertake a separate analysis of whether 
a measure is "other than ordinary customs duties", in order to confirm a finding of inconsistency 
with Article 4.2 of the Agreement on Agriculture, such analysis is not indispensable for reaching a 
conclusion on the categories listed in footnote 1.  In the Appellate Body's view, Peru's challenge did 
not concern the Panel's proper weighing and apprecia tion of the evidence or the objectivity of the 
Panel's assessment of the matter before it. Rather, Peru's challenge related to the legal standard 
applied by the Panel under Article 4.2, and Peru had not explained the basis for requesting an additional  examination of the Panel's assessment in  the context of an Article 11 claim. 
For the foregoing reasons, the Appellate Body found  that the Panel did not act inconsistently with 
Article 11 of the DSU in its analysis under Article 4.2 of the Agreement on Agriculture. 
4.5.3  Article II:1(b) of the GATT 1994 Peru raised two claims of error concerning the Panel's analysis of whether the additional duties 
resulting from the PRS are inconsistent with Article II:1(b), namely that: (i) the Panel erred in 
finding that the additional duties are not "ordinary customs duties" under Article II:1(b) of the GATT 1994; and (ii) the Panel acted inconsistently wi th Article 11 of the DSU by failing to examine 
certain evidence submitted by Peru in connection with Guatemala's claim. 
4.5.3.1  The Panel's finding that the measure at issue is not an "ordinary customs duty" 
under Article II:1(b) of the GATT 1994 
Peru claimed that the Panel erred in finding that the additional duties resulting from the PRS are 
not "ordinary customs duties" under Article II:1(b) of the GATT 1994 on the basis of the Panel's earlier finding under Article 4.2 of the Agreement on  Agriculture. While Peru argued that the Panel WT/AB/26 
 
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  should have examined separately whether the measure at issue is an "ordinary customs duty" 
under Article II:1(b), Guatemala contended that the Panel was correct to conclude that the measure is not an "ordinary customs duty" under Article II:1(b), having found that such measure 
falls within the scope of footnote 1 of Article 4. 2 of the Agreement on Agriculture and, as such, 
required to be converted into "ordinary customs duties". 
The Appellate Body observed that Article 4.2 of the Agreement on Agriculture and the first 
sentence of Article II:1(b) of the GATT 1994 contain different obligations. Article 4.2 of the 
Agreement on Agriculture provides that "Members shall not maintain, resort to, or revert to any 
measures of the kind which have been required to  be converted into ordinary customs duties". The 
first sentence of Article II:1(b) of the GATT 1994 provides that certain products shall "be exempt from ordinary customs duties in excess of those set forth and provided" in the relevant Schedule of 
Concessions.  
The Appellate Body recalled that the structure and logic of footnote 1 of the Agreement on 
Agriculture make clear that variable import levies and minimum import prices cannot be ordinary 
customs duties. The Appellate Body also recalled that, as agreed by both Peru and Guatemala, 
"ordinary customs duties" should be interpreted in the same way in both Article 4.2 of the Agreement on Agriculture and the first sentence of Article II:1(b) of the GATT 1994. Given the 
Panel's finding that the additional duties resulting from the PRS fall within footnote 1 of the 
Agreement on Agriculture and that "variable impo rt levies" cannot be "ordinary customs duties" 
within the meaning of Article 4.2, the Appellate Body considered that the Panel was correct in finding that such additional duties are also not "ordinary customs duties" within the meaning of the 
first sentence of Article II:1(b) of the GATT 1994. 
The Appellate Body considered that, contrary to Peru's argument, the Panel's approach and 
reasoning did not suggest that the Panel found an inconsistency with Article II:1(b) of the 
GATT 1994 merely "by implication" from a finding of inconsistency with Article 4.2 of the 
Agreement on Agriculture. The second sentence  of Article II:1(b), read together with the 
Understanding on the Interpretation of Article II: 1(b) of the GATT 1994, prohibits the imposition of 
"other duties or charges" in excess of those recorded in the relevant Member's Schedule of 
Concessions. In line with the understanding that Article 4.2 of the Agreement on Agriculture and 
Article II:1(b) of the GATT 1994 contain distinct  legal obligations, the Panel examined both 
provisions separately in different sections of its Report, and did not merely make a consequential 
finding of inconsistency with the second sentence of Article II:1(b) based on its earlier finding 
under Article 4.2. 
On the basis of the foregoing, the Appellate Body  found that Peru had not established that the 
Panel erred in finding that the measure at issue is not an "ordinary customs duty" under the first 
sentence of Article II:1(b) of the GATT 1994. 
4.5.3.2  Article 11 of the DSU 
Peru claimed that the Panel acted inconsistently with Article 11 of the DSU by failing to examine 
evidence relevant to the determination of whether Peru correctly scheduled the additional duties resulting from the PRS as "ordinary customs duties" within the meaning of Article II of the GATT 1994. Guatemala argued that, to the extent th at the Panel did not consider certain evidence, 
this was a result of the Panel's use of the correct legal standard, rather than any failure to conduct 
an objective assessment within the meaning of Article 11 of the DSU.  
The Panel considered that: (i) the term "ordinary customs duties" must have the same meaning in 
both Article 4.2 of the Agreement on Agriculture and the first sentence of Article II:1(b) of the 
GATT 1994; and (ii) the structure and logic of footnote 1 make clear that variable import levies and minimum import prices cannot be ordinary customs duties. Thus, the Panel concluded that 
examination of further evidence presented by Peru  was not necessary for its analysis of whether 
the measure at issue is an "ordinary customs duty". The Appellate Body considered that Peru's claim did not challenge any lack of objectivity in the Panel's assessment of the evidence, but the correctness of the Panel's legal analysis. The Ap pellate Body noted that Peru put forward an 
analogous claim of error concerning the legal standard applied by the Panel in its analysis of 
Guatemala's claim under the second sentence of Ar ticle II:1(b) of the GATT 1994; a claim that the 
Appellate Body had already rejected. Finally, the Appellate Body recalled that a challenge under WT/AB/26 
 
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  Article 11 of the DSU should not merely be put forth as a subsidiary argument or claim in support 
of a claim that a panel failed to construe or apply correctly a particular provision. 
On the basis of the foregoing, the Appellate Body found that the Panel did not act inconsistently 
with Article 11 of the DSU in its examination of Guatemala's claim under the second sentence of 
Article II:1(b) of the GATT 1994. 
4.5.4  Relationship between WTO and FTA provisions 4.5.4.1  New arguments raised on appeal 
Guatemala contended that Peru's arguments that the Panel erred in its interpretation of Article 4.2 
of the Agreement on Agriculture and Article II:1( b) of the GATT 1994 by failing to take into 
account Article 31(3)(a) and (c) of the Vienna Co nvention, either with respect to the FTA or 
ILC Articles 20 and 45, were not raised before the Panel and were accordingly not properly within 
the scope of the appeal because they required consideration of new facts or issues different from 
those covered in the Panel Report. The Appellate Body rejected Guatemala's claim that Peru's 
arguments regarding the interpretation of Article 4.2 of the Agreement on Agriculture and 
Article II:1(b) of the GATT 1994 in accordance with Article 31(3)(a) and (c) of the Vienna 
Convention could not be raised on appeal. The Appellate Body considered that these arguments concerned issues of law covered in the Panel Report and legal interpretation developed by 
the Panel.  
The Appellate Body was also not persuaded that consideration of Peru's arguments on appeal 
would require it to review new facts. The Appellate Body was of the view that the consideration of the provisions of the FTA and of ILC Articles 20 and 45 to determine the consistency of the PRS 
with Article 4.2 of the Agreement on Agricultur e and Article II:1(b) of the GATT 1994 would not 
require it to review new facts.  
The Appellate Body concluded that to the extent Peru's new arguments on appeal related to 
"issues of law covered in the panel report" or "legal interpretations developed by the panel" and 
did not require it to review new facts, they were properly raised on appeal and did not adversely affect Guatemala's due process rights. 
4.5.4.2  The relevance of the Guatemala- Peru Free Trade Agreement and certain 
provisions of the ILC under Article 31(3) of the Vienna Convention 
T h e  A p p e l l a t e  B o d y  f o u n d  t h a t  P e r u ' s  a r g u m e n t s ,  that the Panel erred in its interpretation of 
Article 4.2 of the Agreement on Agriculture and Article II:1(b) of the GATT 1994 because it failed 
to take into account under Article 31(3) of th e Vienna Convention the FTA and ILC Articles 20 
and 45, went beyond the interpretation of Article 4.2 and Article II:1(b) in accordance with Article 3.2 of the DSU and Article 31 of the Vienna  Convention and amounted to arguing that, by 
means of the FTA, Peru and Guatemala actually modified these WTO provisions 
between themselves. 
Peru argued on appeal that, by relying on paragr aph 9 of Annex 2.3 to the FTA (which states that 
Peru may maintain the PRS) and on ILC Articl es 20 (consent precluding the wrongfulness of 
an act) and 45 (loss of the right to invoke respon sibility), the Panel should have interpreted the 
terms "shall not maintain" in Article 4.2 of the Agreement on Agriculture as meaning "may 
maintain" in the relationship between Peru and Guatemala. The Appellate Body recalled that under 
Article 31 of the Vienna Convention treaty terms should be interpreted in accordance with their 
ordinary meaning in their context and in the light  of the object and purpose of the treaty and 
observed that while context is a necessary element of an interpretative analysis under Article 31, 
its role and importance in an interpretative exercise depends on the clarity of the plain textual 
meaning of the treaty terms. If the meaning of tr eaty terms is difficult to discern, determining the 
ordinary meaning under Article 31 may require mo re reliance on the context and the object and 
purpose of the treaty and possibly other elements considered "together with the context" and the 
tools mentioned in Article 32. However, the Appellate Body did not consider that Article 31 can be used to develop interpretations based on asserted subsequent agreements or asserted relevant rules of international law applicable in the relations between the parties under Article 31(3)(a) 
and (c) that appear to subvert the common intention of the treaty parties as reflected in the text WT/AB/26 
 
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  of Article 4.2 and Article II:1(b). In particular, the Appellate Body did not consider that in an 
interpretative exercise under Article 31, elements considered "together with the context", such as subsequent agreements or rules of international law, can be used to reach the conclusion that the textual terms "shall not maintain" in Article 4.2 of the Agreement on Agriculture should be read as 
meaning "may maintain" based on a particular provision found in the FTA (or on ILC Article 20 
or 45).  
The Appellate Body also rejected the notion that under Article 31 of the Vienna Convention it is 
possible to develop interpretations of a multilateral treaty that would be applicable only to some of 
the parties to that treaty. Article 31(1) states that "[a] treaty shall be interpreted" such that the function of the interpretative exercise is the treaty as a whole, not the treaty as it may apply between some of its parties. The Appellate Body ex plained that, with multilateral treaties such as 
the WTO covered agreements, the "general rule of interpretation" in Article 31 is aimed at 
establishing the ordinary meaning of treaty terms reflecting the common intention of the parties to the treaty, and not just the intentions of some of the parties. While an interpretation of the treaty 
may in practice apply to the parties to a dispute, it must serve to establish the common intentions 
of the parties to the treaty being interpreted. 
Turning to Article 31(3) of the Vienna Convention, the Appellate Body considered that both the FTA 
and ILC Articles 20 and 45 are not "relevant" to th e interpretation of Article 4.2 and Article II:1(b), 
within the meaning of Article 31(3)(c) and that the FTA was not an agreement "regarding the interpretation" of these WTO provisions within the meaning of Article 31(3)(a). In particular, the Appellate Body recalled its jurisprudence that in order to be "relevant" for purposes of 
interpretation, rules of international law within the meaning of Article 31(3)(c) must concern the 
same subject matter as the treaty terms being interp reted. The Appellate Body also recalled that it 
had held in previous disputes that agreements "r egarding the interpretation of the treaty or the 
application of its provisions" within the meaning Article 31(3)(a) are "agreements bearing 
specifically upon the interpretation of a treaty".  
The Appellate Body observed that Paragraph 9 of Annex 2.3 to the FTA stated that "Peru may 
maintain its Price Range System". ILC Article 20 a ddressed the issue of validity of consent by a 
State that precludes the wrongfulness of a given act by another State within the limits of that consent. ILC Article 45, paragraph (a) concerns the loss of right to invoke responsibility of a State, in circumstances where the injured State has validly waived the claim. In contrast, the specific 
interpretative issues arising under Article 4.2 of the Agreement on Agriculture and Article II:1(b) 
of the GATT 1994 in question in this dispute were  not whether Peru "may maintain" its PRS with 
regard to designated products, or whether Guatemala had consented to the maintenance of the 
PRS or waived its right to challenge it. Rather, in order to determine whether Peru could maintain 
its PRS, the Panel had to interpret the meaning of  the terms in Article 4.2 and footnote 1 of the 
Agreement on Agriculture, and find whether the additional duties resulting from the PRS could be 
characterized as "variable import levies", "minimum import prices" or "similar border measures" 
rather than "ordinary customs duties" within the meaning of footnote 1. Paragraph 9 of Annex 2.3 to the FTA and ILC Articles 20 and 45 did not provide "relevant" interpretative guidance in this respect. Accordingly, the Appellate Body did not co nsider that the FTA and ILC Articles 20 and 45 
could be considered as rules concerning the same subject matter as Article 4.2 and Article II:1(b), 
or as bearing specifically upon the interpretation of these provisions. The Appellate Body thus disagreed with Peru that the FTA and ILC Articles  20 and 45 are "relevant" rules of international 
law within the meaning of Article 31(3)(c) and that the FTA is a subsequent agreement "regarding 
the interpretation" of Article 4.2 and Article II:1(b) within the meaning of Article 31(3)(a) of the Vienna Convention. 
Finally, while not ruling on the meaning of the te rm "parties" in Article 31(3)(a) and (c) of the 
Vienna Convention, the Appellate Body expressed re servations as to whether the provisions of the 
FTA (in particular paragraph 9 of Annex 2.3), which could arguably be construed as to allow Peru to maintain the PRS in its bilateral relations with Guatemala, could be used under Article 31(3) of 
the Vienna Convention in establishing the common intention of WTO Members underlying the 
provisions of Article 4.2 of the Agreement on Agriculture and Article II:1(b) of the GATT 1994. 
The Appellate Body considered that such an appr oach would suggest that WTO provisions can be 
interpreted differently, depending on the Members to which they apply and on their rights and 
obligations under an FTA to which they are parties. WT/AB/26 
 
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  Having concluded that Peru's arguments concerned modifications  rather than interpretations  of 
Article 4.2 of the Agreement on Agriculture and Article II:1(b) of the GATT 1994, the Appellate Body further considered that such alleged modifications would not be subject to Article 41 of the Vienna Convention about inter se  modifications of multilateral treaties, but rather 
to the specific WTO provisions of Article XXIV of the GATT 1994. 
The Appellate Body noted in particular that the WTO agreements contain specific provisions 
addressing amendments, waivers, or exceptions for regional trade agreements
26, which prevail 
over the general provisions of the Vienna Conventi on, such as Article 41. In the case of FTAs the 
Appellate Body observed that Article XXIV of th e GATT 1994 specifically permits departures from 
certain WTO rules. The Appellate Body stated that the proper routes to assess whether a provision in an FTA that may depart from certain WTO rules is nevertheless consistent with the covered 
agreements are the WTO provisions that permit  the formation of regional trade agreements – 
namely: Article XXIV of the GATT 1994, or the En abling Clause as far as agreements between 
developing countries are concerned, in respect of trade in goods; and Article V of the General 
Agreement on Trade in Services (GATS), in respect of trade in services. 
In addressing the issue of whether a WTO-incons istent measure in an FTA can nonetheless be 
justified under Article XXIV of the GATT 1994, the Appellate Body recalled its ruling in  
Turkey – Textiles . In that dispute the Appellate Body had held that Article XXIV of the GATT 1994 
may provide justification for measures that are inconsistent with certain other GATT 1994 provisions, provided that two cumulative conditions are fulfilled: (i) the party claiming the benefit of this defence must demonstrate that the measure at issue is introduced upon the formation of a 
customs union or FTA that fully meets the requirements of Article XXIV; and (ii) that party must 
demonstrate that the formation of that customs union or FTA would be prevented if it were not allowed to introduce the measure at issue. The Appellate Body also recalled that in setting out the 
above-cited conditions for a GATT 1994-inconsistent measure to be justified as part of a customs 
union or FTA under paragraph 5 of Article XXI V of the GATT 1994, it had relied also on 
paragraph 4 of this provision, which states that the purpose of a customs union or FTA is 
"to facilitate trade" between the constituent members and "not to raise barriers to the trade" with 
third countries. The Appellate Body further noted that references in paragraph 4 to "facilitat[ing] trade" and "closer integration" are not consistent with an interpretation of A r t i c l e  X X I V  a s  a  b r o a d  d e f e n c e  f o r  m e a s u r e s  i n  F T A s  t h a t  r o l l  b a c k  o n  M e m b e r s '  r i g h t s  a n d  
obligations under the WTO covered agreements. 
Nevertheless, the Appellate Body did not rule on whether the PRS is consistent with the 
requirements set forth in Article XXIV, considering that Peru had not invoked Article XXIV of the 
GATT 1994 in order to justify the inconsistency of the PRS with Article 4.2 of the Agreement on 
Agriculture and Article II:1(b) of the GATT 1994 and that an agreement that is not yet in force, such as the FTA, cannot benefit from the defence of Article XXIV.
27 Moreover, the Appellate Body 
noted that it was neither undisputed nor clear from reading the provisions of the FTA whether the 
FTA actually allowed Peru to maintain a WTO-inconsistent PRS.  
In the light of the above, the Appellate Body fo und that the Panel did not commit an error by not 
interpreting Article 4.2 of the Agreement on Agriculture and Article II:1(b) of the GATT 1994 
taking into account the provisions of the FTA an d ILC Articles 20 and 45 under Article 31(3) of the 
Vienna Convention. The Appellate Body also found that the Panel did not err in declining to make 
                                               
26 Article X of the WTO Agreement sets out detailed procedures "to amend the provisions of this 
Agreement or the Multilateral Trade Agreements". Article IX of the WTO Agreement gives the Ministerial Conference and the General Council the exclusive authority to adopt interpretations of the WTO Multilateral 
Trade Agreements and to waive obligations imposed on Members under these agreements. Importantly, Article XXIV of the GATT 1994 and Article V of the GATS provide for regional trade exceptions, allowing WTO Members to depart from specific rights and obli gations under the WTO covered agreements when they 
form customs unions, free trade areas or agreements liberalizing trade in services. Developing countries 
entering into regional trade agreements covering trade in goods with other developing countries may also avail 
themselves of the exception provided by the Enabling Clause. We note, however, that neither participant has invoked or relied upon the Enabling Cl ause in respect of the FTA at issue. 
27 The Article XXIV defence applies also in respect of "an interim agreement ne cessary for the formation 
of a customs union or of a free-trad e area". However, the Appellate Body noted that also such "interim 
agreement" would need to be in force for the defence to apply. WT/AB/26 
 
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  findings as to whether the FTA modified the WTO rights and obligations between Peru and 
Guatemala. 
4.5.5  Guatemala's other appeal: Article 4.2 of the Agreement on Agriculture – 
"minimum import prices" 
Guatemala questioned the Panel's interpretation and application of the terms "minimum import 
prices" and "similar border measures" in footnote 1 of Article 4.2 of the Agreement on Agriculture. In case the Appellate Body were to reverse th e Panel's findings, Guatemala requested that the 
Appellate Body complete the legal analysis and find that Peru's measure is inconsistent with 
Article 4.2 of the Agreement on Agriculture. 
4.5.5.1  The Panel's interpretation and application of "minimum import prices" 
Guatemala claimed that the Panel erred in its interpretation of "minimum import prices", in 
footnote 1 of Article 4.2 of the Agreement on Agri culture, by adopting an excessively narrow legal 
standard, requiring that such a measure must impose duties based on the transaction value of imports, and must prevent each and every import from entering below a specified threshold. Peru 
contended that the Panel neither stated that, under  such a measure, each and every import must 
be prevented from entering the market below a sp ecified threshold, nor suggested that a measure 
relying on reference prices, instead of transaction values, cannot be considered a "minimum 
import price" scheme. 
The Appellate Body recalled that the term "minimum import price" refers generally to the lowest 
price at which imports of a certain product may enter a Member's domestic market. While the Appellate Body has noted that "minimum import price" schemes "generally operate" in relation to 
the actual transaction value of imports and that a "typical" minimum import price scheme would 
involve such a comparison, the Appellate Body considered that these qualifications suggest that there can be other examples of benchmarks for determining "the lowest price at which imports … 
may enter a … market". Such an assessment would have to be made on the basis of the total 
configuration of the measure. Thus, the Appellate Body considered that a panel's examination of whether a measure is a "minimum import price" within the meaning of footnote 1 of the 
Agreement on Agriculture should be based on evid ence, where available, concerning the operation 
and impact of the measure, as well as an analysis of the design and structure of the measure. 
Contrary to Guatemala's submission, the Appell ate Body considered that the Panel did not 
interpret the term "minimum import prices" to mean that a measure must necessarily operate in 
relation to the transaction values of imports. The Appellate Body also did not consider the Panel to 
have interpreted "minimum import prices" as implying that a measure requires that "each and every import" enter at or above a specified thresh old. Rather, the Panel noted statistical evidence 
submitted by Peru showing that certain transactio ns entered Peru's market at a price below the 
PRS floor price. The Panel also noted that there wa s no evidence at all that the additional duties 
resulting from the PRS directly impede the entry of products at prices below a certain threshold, in 
a way different from what would occur with ordinary customs duties. 
On the basis of the foregoing, the Appellate Body found that Guatemala had not established that 
the Panel erred in its interpretation of "minimum import prices" in footnote 1 of Article 4.2 of the Agreement on Agriculture. 
Guatemala claimed that the Panel erred in finding that Peru's measure is not a "minimum import 
price" despite the existence of an implicit or de facto  threshold. According to Guatemala, the PRS 
contains an implicit or de facto  threshold, which consists of the lowest international price of the 
relevant product in the previous two-week period plus the additional duty resulting from the PRS. 
Guatemala contended that, since basically no import can enter the Peruvian market below the implicit threshold, the measure at issue qualifies as a "minimum import price", and is thus 
inconsistent with Article 4.2 of the Agreement on Agriculture. 
Peru submitted that the implicit threshold identified by Guatemala is based upon a calculation that 
is not part of the PRS, and that the Panel was correct to find that there is no de facto  or implicit 
threshold in the PRS. Peru contended that operators are free to transact at any price, and, if 
transaction prices are unlikely to be below the lowest international price contemplated in the PRS WT/AB/26 
 
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  reference price, this is a result of the tendency of import prices to follow international prices, and 
not a result imposed by the PRS. 
The Appellate Body observed that, where available,  statistical evidence concerning the impact of 
the measure is relevant to a panel's examination. There may be, however, additional elements 
relevant to a panel's examination of whether a measure is a "minimum import price" within the 
meaning of footnote 1 of the Agreement on Agricult ure. For purposes of such examination, a panel 
should also analyse the design, structure, and op eration of a measure. In this case, the Panel's 
finding was based on the statistical evidence submi tted by Peru. The Panel stated that, taking into 
account the structure and design of the measure at issue, as well as the details concerning its operation, there is no evidence that the measure ensures that imports will not enter below a certain threshold. Beyond this sentence, the Panel did not explain any further how it had analysed 
the design and structure of the measure at issu e. Thus, the Appellate Body concluded that the 
Panel did not sufficiently engage with the relevant  elements of the design, structure, and operation 
of the measure at issue that could have supported the conclusion the Panel drew. In particular, the 
Panel did not properly examine to what extent the implicit threshold, as identified by Guatemala, 
can be said to form part of the design and stru cture of the PRS. Furthermore, the Panel did not 
determine whether the reference price of the PRS serves as an appropriate proxy for transaction 
values of imports entering the Peruvian market. 
On the basis of the foregoing, the Appellate Body  found that the Panel erred in its analysis of 
whether the measure at issue is a "minimum import price" within the meaning footnote 1 of Article 4.2 of the Agreement on Agriculture. Consequently, the Appellate Body reversed the Panel's 
finding, in paragraphs 7.371 and 8.1.c of the Pane l Report, that the additional duties resulting 
from the PRS do not constitute "minimum import prices" within the meaning of footnote 1 of Article 4.2. 
4.5.5.2  The Panel's interpretation and application of "similar border measures" 
Guatemala claimed that the Panel erred in its interpretation of "similar border measures", in 
footnote 1 of Article 4.2 of the Agreement on Ag riculture, by conflating the legal standard for 
"minimum import prices" with the legal standard for border measures "similar" to minimum import 
prices. Peru contended that the Panel applied th e correct legal test in determining that the 
additional duties are not "similar" to "minimum import prices". 
The Appellate Body observed that footnote 1 of the Agreement on Agriculture includes a category 
of "similar border measures other than ordinary customs duties". A measure need not be identical 
to one of the prohibited categories of measures in footnote 1 to fall nevertheless within the scope of this provision. Rather, in order to be a "similar border measure", a measure must, in its specific 
configuration, have sufficient "resemblance or likeness to" or be "of the same nature or kind" as at 
least one of the specific categories of measures listed in footnote 1. Thus, according to the Appellate Body, a measure is "similar" to a "minimum import price" scheme when it shares a 
sufficient number of characteristics with, and has a design, structure, operation, and impact 
similar, to a minimum import price, even if it is not "identical" to such a scheme in all respects. 
In the Appellate Body's view, the Panel did not find that, for a measure to qualify as a "similar 
border measure", within the meaning of footnote 1 of the Agreement on Agriculture, it must share 
all necessary attributes with "minimum import prices". Rather, the Panel stated that a measure is 
"similar" to a "minimum import price" when it shares a sufficient number of characteristics with, and has a design, structure, and effects similar to , a minimum import price, even if it is not 
"identical" to such a scheme in all respects. In this regard, the Appellate Body concluded that the 
Panel's interpretation of "similar border measures" is an accurate rendering of the meaning of this expression, as interpreted by the Appellate Body. 
On the basis of the foregoing, the Appellate Body found that Guatemala had not established that 
the Panel erred in its interpretation of "similar border measures" in footnote 1 of Article 4.2 of 
the Agreement on Agriculture. 
Guatemala claimed that the Panel erred in finding that Peru's measure is not "similar" to a 
"minimum import price" within the meaning of footnote 1 of Article 4.2 of the Agreement on 
Agriculture. Guatemala argued that the measure contains two mechanisms preventing imports WT/AB/26 
 
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  from entering the Peruvian market at prices below certain thresholds, namely, the explicit 
threshold and the implicit threshold. Thus, in Guatemala's view, Peru's measure is at least similar to a minimum import price. Peru responded that  Guatemala failed to submit examples of any 
shared characteristics that would make the Peruvian measure "similar" to a minimum import price. 
The Appellate Body observed that, where available,  statistical evidence concerning the impact of 
the measure is relevant to a panel's examination. There may be, however, additional elements relevant to a panel's examination of whether a measure is a border measure "similar" to a 
"minimum import price" within the meaning of footnote 1 of Article 4.2 of the Agreement on 
Agriculture. For purposes of this examination, a panel should also analyse the design, structure, and operation of a measure. A measure is "similar" to a minimum import price scheme when it shares a sufficient number of characteristics with, and has a design, structure, operation and 
impact similar to, a minimum import price, even if it is not "identical" to such a scheme in all 
respects. The Panel's finding was based essentially on the statistical evidence submitted by Peru. Thus, the Appellate Body considered that, by faili ng to analyse sufficiently the design, structure 
and operation of the measure at issue, the Panel did not conduct a proper analysis as to whether 
the additional duties resulting from the PRS, even if not identical to a "minimum import price" scheme, may nonetheless constitute a "similar border measure" within the meaning of footnote 1 
of Article 4.2 of the Agreement on Agriculture. The Panel did not sufficiently examine the explicit 
or the implicit thresholds identified by Guatemal a. The Panel also failed to determine whether the 
reference price of the PRS serves as an appropriate proxy for transaction values of imports entering the Peruvian market. 
On the basis of the foregoing, the Appellate Body  found that the Panel erred in its analysis of 
whether the measure at issue is a border measure "similar" to a "minimum import price" within the meaning of footnote 1 of Article 4.2 of th e Agreement on Agriculture. Consequently, the 
Appellate Body reversed the Panel's finding, in paragraphs 7.370 and 8.1.c of the Panel Report, 
that the measure at issue does not share sufficient characteristics with "minimum import prices" to be considered a border measure "similar" to a "minimum import price" within the meaning of 
footnote 1 of Article 4.2. 
4.5.5.3  Completion of the legal analysis Guatemala requested that the Appellate Body complete the legal analysis and find that Peru's 
measure is inconsistent with Article 4.2 of the Agreement on Agriculture because the measure is 
either a "minimum import price" or a measure "similar" to a minimum import price. Guatemala 
submitted that the measure prevents imports from entering the Peruvian market at prices below 
the explicit threshold of the PRS, namely , the floor price, or alternatively, the de facto  or implicit 
threshold, consisting of the sum of the lowest re levant international price and the additional duty 
resulting from the PRS. Having reversed the Panel's findings concerning "minimum import prices" and "similar border measures", the Appellate Body considered whether it could complete the 
legal analysis. 
The Appellate Body noted that, in previous disputes, it had completed the legal analysis with a 
view to facilitating the prompt settlement and effe ctive resolution of the dispute. The Appellate 
B o d y  h a s ,  h o w e v e r ,  h e l d  t h a t  i t  c a n  d o  s o  o n l y  i f  t h e  f a c t u a l  f i n d i n g s  o f  t h e  p a n e l  a n d  t h e  
undisputed facts on the panel record provide it with a sufficient basis for its own analysis. Reasons 
that have prevented the Appellate Body from completing the legal analysis include the absence of full exploration of the issues before the panel, and considerations for parties' due process rights. 
T h e  A p p e l l a t e  B o d y  r e c a l l e d  t h a t  i t  h a d  f o u n d  that the Panel did not sufficiently examine the 
explicit or the implicit threshold identified by Guatemala. The Panel record also did not contain undisputed facts concerning to what extent, in the light of the design, structure and operation of 
the measure, either of these thresholds serves, even if not in all instances, as a minimum price 
threshold for imports entering the Peruvian market, so as to qualify the measure as at least a "similar border measure" within the meaning of  footnote 1 of Article 4.2 of the Agreement 
on Agriculture.  
Moreover, the Appellate Body considered that th e Panel record did not contain undisputed facts 
concerning whether the reference price of the PRS serves as an appropriate proxy for transaction values of imports entering the Peruvian market. The Appellate Body noted that the floor and WT/AB/26 
 
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  reference prices, and ultimately the additional duty  resulting from the PRS, are calculated only for 
the four "marker products" at issue. The same additional duty applicable for each "marker product" is then also applied to the respective "associated products". The Appellate Body considered that there was no undisputed evidence on the Panel record concerning the relationship between the 
prices of "marker products" and the prices of "associated products". In addition, the reference 
price is calculated on the basis of only a particular specified international market. Moreover, the Appellate Body saw no undisputed evidence on the Panel record concerning to what extent such 
market can be said to adequately reflect global prices of a particular "marker product". 
Furthermore, the Appellate Body found that there was no evidence on the Panel record concerning 
the impact, if any, of the two-week gap in time between the international prices used to calculate the reference price and the transaction values of  imports entering the Peruvian market. Without 
these factual elements, the Appellate Body conclude d that it is not possible to consider, on the 
basis of the Panel record, whether, and to what extent, the reference price serves as an appropriate proxy for transaction values of impo rts entering the Peruvian market. The Appellate 
Body observed that this consideration is also relevant for examining the de facto  or implicit 
threshold identified by Guatemala. The Appellate Body noted that this is because one of the two 
components of the implicit threshold is the additional duty resulting from the PRS, which is, in 
turn, dependent on the reference price. 
Thus, the Appellate Body considered that it was not possible to determine whether either of the 
thresholds identified by Guatemala constitutes a "minimum import price" threshold, referring 
generally to the lowest price at which imports of a certain product may enter the Peruvian market. 
Being unable to undertake such an examination, the Appellate Body was also unable to determine 
whether the measure at issue shares a sufficient number of characteristics with, and has a design, structure, operation and impact similar to, a "minimum import price" to make it "similar" to a 
"minimum import price". 
In the light of the above, the Appellate Body was unable to complete the legal analysis as to 
whether the additional duties resulting from the PRS constitute "minimum import prices" or 
"similar border measures" within the meaning of footnote 1 of Article 4.2 of the Agreement on 
Agriculture. 
4.6  Appellate Body Reports, China – Measures Imposing Anti-Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan , 
WT/DS454/AB/R, and China – Measures Imposing Anti-Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from the European Union , WT/DS460/AB/R 
These disputes arose from complaints brought by Japan and the European Union concerning 
several aspects of the investigation leading to China's measures imposing anti-dumping duties on imports of certain high performance stainless st eel seamless tubes (HP-SSST). The investigation at 
issue was initiated on 8 September 2011 and resulted in a final determination by the Ministry of 
Commerce of the People's Republic of China (MOFCOM) on 8 November 2012. 
Before the Panel, Japan and the European Union challenged several aspects of the investigation 
leading to the imposition of these duties, claiming that China acted contrary to its obligations 
under the Anti-Dumping Agreement and the GATT in its: (i) determination of injury; (ii) treatment 
of certain confidential information provided by the applicants; (iii) alleged failure to disclose certain essential facts; (iv) application of provisional measures; and (v) alleged provision of inadequate 
information in its Final Determination Notice. In addition, the European Union requested the Panel 
to find that China acted inconsistently with the Anti-Dumping Agreement in arriving at its determination of dumping, with particular respect to MOFCOM's determination of the amount for 
selling, general, and administrative (SG&A) costs for one of the EU producers, Salzgitter 
Mannesmann Stainless Tubes GmbH (SMST). 
In its Reports, the Panel found that MOFCOM's injury determination is inconsistent with 
Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement, inter alia , because of MOFCOM's 
failure properly to account for differences in quantities of domestic and imported goods in its price 
effects analysis, as well as MOFCOM's improper reliance on the market share of subject imports in determining a causal link between subject imports and material injury to the domestic industry. 
However, the Panel rejected claims by Japan and the European Union under these provisions to 
the extent they relied on the arguments concerni ng MOFCOM's findings of price undercutting, and WT/AB/26 
 
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  MOFCOM's alleged failure to undertake a segmented analysis of the impact of imports of different 
grades of the subject product on the domestic industry. 
As regards China's treatment of certain informat ion supplied by the petitioners, the Panel found 
that MOFCOM allowed such information to remain confidential without objectively assessing "good 
cause" or scrutinizing the petitioners' showing of  "good cause", contrary to Article 6.5 of the 
Anti-Dumping Agreement. The Panel also found that  China acted inconsistently with Article 6.5.1 
of the Anti-Dumping Agreement by failing to re quire petitioners to provide sufficiently detailed 
non-confidential summaries of information treated as confidential, or explanations as to why 
summarization was not possible. 
The Panel rejected Japan's claim that China's reliance on facts available to calculate the dumping 
margin for Japanese exporters/producers of th e subject product other than Sumitomo Metal 
Industries, Ltd. (SMI) and Kobe Special Tube Co., Ltd. (Kobe), is inconsistent with Article 6.8 and 
paragraph 1 of Annex II to the Anti-Dumping Agreement. The Panel also rejected the European Union's claim that China acted inconsistently with Article 6.8 and paragraphs 3 and 6 of 
Annex II to the Anti-Dumping Agreement by appl ying facts available in respect of certain 
information that SMST, an exporter/producer of th e subject product based in the European Union, 
sought to rectify at verification. 
The Panel found that China acted inconsistently wi th Article 6.9 of the An ti-Dumping Agreement by 
failing adequately to disclose essential facts in connection with: (i) import prices, domestic prices, and price comparisons considered by MOFCOM in its injury determination; and (ii) the methodology used to calculate the margins of dumping for SMST and Tubos Inoxidables, S.A 
(Tubacex) (another exporter/producer of the su bject product based in the European Union). 
However, the Panel rejected the complainants' claims that China acted inconsistently with Article 6.9 of the Anti-Dumping Agreement by failing adequately to disclose essential facts in 
connection with: (i) the data underlying MOFCOM's determination of dumping; and (ii) the 
determination and the calculation of the dumping margins for all Japanese producers/exporters of the subject product other than SMI and Kobe, and for all European Union producers/exporters 
other than SMST and Tubacex. 
The Panel also found that China acted inconsistently with Articles 12.2 and 12.2.2 of the 
Anti-Dumping Agreement by failing to set forth in sufficient detail in its Final Determination notice or a separate report the reasons why MOFCOM considered it appropriate to apply the highest 
margin of dumping calculated for cooperating exporters as the all others rate for Japanese 
companies other than SMI and Kobe, and for Eu ropean Union companies other than SMST and 
Tubacex.  
As regards the European Union's claims regard ing MOFCOM's dumping determination, the Panel 
found that China acted inconsistently with Articl e 2.2.2 of the Anti-Dumping Agreement by failing 
to determine an administrative, selling and genera l costs (SG&A) amount for SMST on the basis of 
actual data pertaining to production and sales in the ordinary course of trade of the like product. 
The Panel also upheld the European Union's claim that China acted inconsistently with Article 6.7 and paragraph 7 of Annex I of the Anti-Dumping  Agreement by rejecting SMST's request for 
rectification only on the basis that it was not provided prior to verification. 
China, Japan and the European Union each appealed different aspects of the Panel's analysis and 
findings. Having provided the participants and third parties an opportunity to comment, the 
Appellate Body decided to consolidate the appellate proceedings in these disputes due to the 
significant overlap in the content of these disputes for which the appeals were filed on the same 
date. A single Appellate Body Division was selected to hear both appeals, and a single oral hearing 
was held by the Division.  
4.6.1  Data for SG&A amounts – Articles 2. 2.1 and 2.2.2 of the Anti-Dumping Agreement 
China appealed the Panel's assessment, in the EU Panel Report, of MOFCOM's determination of 
dumping for SMST. MOFCOM had calculated the margin of dumping for a particular type of HP-SSST, referred to in the Panel Reports as Grade B, on the basis of a comparison between 
SMST's export prices to China and a constructed "normal value", that is, the sum of: (i) the cost of 
production (COP) in the country of origin; and (ii) amounts for SG&A costs and profits. WT/AB/26 
 
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  China claimed that the Panel erred in concluding that the European Union's panel request, as it 
related to Articles 2.2.1 and 2.2.2 of the Anti-D umping Agreement, provides a "brief summary of 
the legal basis of the complaint sufficient to present the problem clearly", as required by Article 6.2 of the DSU. China also claimed that the Panel erred in its interpretation and application 
of Article 2.2.2 of the Anti-Dumping Agreement, and acted inconsistently with its duties under 
Articles 11 and 12.7 of the DSU, and under Article 17.6(i) of the Anti-Dumping Agreement, when it 
found that MOFCOM had failed to determine an amount for SG&A costs for SMST on the basis of 
actual data pertaining to production and sales in the ordinary course of trade of the like product. 
With respect to the Panel's terms of reference, the Appellate Body recalled that the 
European Union's panel request includes specific references to Articles 2.2, 2.2.1, 2.2.1.1, and 2.2.2 of the Anti-Dumping Agreement, an d a specific listing of the grounds for the 
European Union's claims. The Appellate Body found it relevant to assess the nature of the 
provisions cited by the European Union in its panel request, including whether they contain a single obligation, or multiple distinct obligations. 
As regards Article 2.2.1, the Appellate Body  considered that provision to set out a single  obligation 
whereby an investigating authority may disregard below-cost sales of the like product only if  it 
determines that "such" below-cost sales display the three specific characteristics mentioned above. 
The Appellate Body further considered that the fact that the European Union did not include 
statements in its panel request foreshadowing the arguments it would make in order to substantiate its claim under Article 2.2.1 did not mean that the European Union's panel request did not comply with the standard set out in Article 6.2 of the DSU. Accordingly, the Appellate Body 
upheld the Panel's finding that the European Union's panel request complies with the requirement 
in Article 6.2 of the DSU to "provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly" in respect of the European Union's claim under Article 2.2.1 of the 
Anti-Dumping Agreement.  
As regards Article 2.2.2, the Appellate Body considered that, read as a whole, Article 2.2.2 
imposes a single obligation, set out in the chapeau, for investigating authorities to determine an 
amount for SG&A costs and profits on the basis of actual data that relates to production and sales 
in the ordinary course of trade. The Appellate Body  found that the fact that the European Union did 
not include further language from the text of Arti cle 2.2.2 did not limit or reduce the scope of the 
European Union's claim to "actual data". Accordingly, the Appellate Body upheld the Panel's finding 
that the European Union's panel request complies wi th the requirement in Article 6.2 of the DSU to 
"provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly" in respect of the European Union's claim under Article 2.2.2 of the Anti-Dumping 
Agreement. 
With respect to China's claims under Articles 11 and 12.7 of the DSU, the Appellate Body 
considered that China's arguments, in fact, conc erned the proper construction and application of 
the requirement in Article 2.2.2 of the Anti-Dum ping Agreement to determine constructed normal 
value on the basis of "actual data pertaining to production and sales in the ordinary course of 
trade". Having addressed China's arguments pertai ning to the interpretation and application of 
Article 2.2.2, the Appellate Body did not consider there to be a basis to find that the Panel failed to 
make an objective assessment of the matter before it, as required under Article 11 of the DSU, or 
that the Panel failed to provide the basic rationale for its findings as required under Article 12.7 of 
the DSU. 
China further challenged the Panel's finding under  Article 2.2.2 on several other grounds. The 
Appellate Body rejected all these grounds and upheld the Panel's finding, in the Panel Report, China – Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel Seamless 
Tubes ("HP-SSST") from the European Union , WT/DS460/R (EU Panel Report), that China acted 
inconsistently with Article 2.2.2 of the Anti-Dum ping Agreement by failing to determine an SG&A 
amount for SMST on the basis of actual data pertaining to production and sales in the ordinary course of trade of the like product.  WT/AB/26 
 
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  4.6.2  MOFCOM's alleged failure to take into  account certain information provided during 
the verification visit 
China claimed that the Panel erred in finding, in the EU Panel Report, that China acted 
inconsistently with Article 6.7 and paragraph 7 of Annex I to the Anti-Dumping Agreement by 
rejecting SMST's request for rectification of information relating to SMST's financial expenses on 
the sole basis that it had not been provided before  the verification visit started. China argued that, 
by creating the obligation to act in line with the main purpose of the verification visit, the Panel 
read into Article 6.7 and paragraph 7 of Annex I to the Anti-Dumping Agreement words that are 
not there. 
The Appellate Body recalled that Article 6.7 of  the Anti-Dumping Agreement grants Members a 
right "to carry out investigations in the territory of other Members". Regarding the relationship 
between Article 6.7 and Annex I to the Anti-Dum ping Agreement, the Appellate Body observed 
that, while Article 6.7 lays out the basic framewor k for verifications in the territory of another 
Member, Annex I, including paragraph 7, sets out further parameters for the conduct of such 
investigations.  
Turning to the immediate context of Article 6.7, the Appellate Body noted that Article 6.6 of the 
Anti-Dumping Agreement stipulates that investigating "authorities shall during the course of an 
investigation satisfy themselves as to the accuracy of the information supplied by interested 
parties upon which their findings are based". The Appellate Body noted that this requirement does 
not mean, however, that investigating authorities are under an obligation to accept and use all information that is submitted to them. Rather, they have some degree of latitude in deciding 
whether to accept and use information submitted by an interested party during an on-the-spot 
investigation or thereafter. This latitude is limited, however, by the investigating authority's obligation under Article 6.6 to ensure that the information on which its findings are based is 
accurate, and by the legitimate due process interests of the parties to an investigation. The 
Appellate Body added that, throughout the investigation, an investigating authority must balance these due process interests with the need to control and expedite the investigating process, 
including during on-the-spot investigations. 
As to the factors that bear upon the latitude of an investigating authority to accept or reject 
information submitted during an on-the-spot investigation, the Appellate Body stated that these may include, for example, the timing of the presentation of new information; whether the 
acceptance of new information would cause undue difficulties in the conduct of the investigation; 
whether the interested party has submitted voluminous amounts of information or merely seeks to have an arithmetical or clerical error corrected; whether the information at issue relates to facts 
that are "essential" within the meaning of Article 6.9 of the Anti-Dumping Agreement; and whether 
the information supplied by an interested party relates to the information specifically requested by the investigating authority.  
Turning to the circumstances of the present disput e, the Appellate Body recalled that MOFCOM had 
requested SMST to prepare documents relating to Table 6-5, and that SMST sought to correct information contained in Tables 6-6 and 6-8, which were summarized in Table 6-5, and that the Panel, therefore, found a "clear and direct conne ction" between the information that SMST sought 
to correct and the information expressly reques ted by MOFCOM. The Appellate Body noted that 
China had not contested this finding, nor the finding that SMST's request for rectification concerned one specific piece of information, that is, the financial expenses of SMST's 
headquarters. Moreover, China had not contested that the only reason for the rejection of SMST's 
rectification request given by MOFCOM in the final determination was that "SMST did not raise this matter before the verification started". In these circumstances, and in the absence of any further 
explanation by MOFCOM, the Appellate Body saw no  error in the Panel's finding that there had 
been no valid reason why MOFCOM did not accept the corrected information provided by SMST. The Appellate Body agreed with the Panel that , while MOFCOM expressly requested SMST to 
prepare certain information for the on-the-spot investigation, it then refused to take into account 
corrected information even though it had a "clear and direct connection" to the information that 
had been requested, and did so solely on the basis that it was not provided prior to the verification 
visit, and without providing other reasons. 
For these reasons, the Appellate Body upheld the Panel's finding, in the EU Panel Report, that 
China acted inconsistently with Article 6.7 and paragraph 7 of Annex I to the Anti-Dumping WT/AB/26 
 
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  Agreement by rejecting SMST's request for rectification only on the basis that it was not provided 
prior to verification. 
4.6.3  Showing of "good cause" under Ar ticle 6.5 of the Anti-Dumping Agreement 
China claimed that the Panel erred in its interpretation and application of Article 6.5 of the 
Anti-Dumping Agreement in finding that China acted inconsistently with its obligations under that 
provision. In particular, China argued that th e Panel erred in construing Article 6.5 of the 
Anti-Dumping Agreement as imposing an obligation on an investigating authority to explain why it 
considers that confidential treatment is warranted. 
The Appellate Body recalled that whenever information is treated as confidential, "transparency 
and due process concerns will necessarily arise because such treatment entails the withholding of information from other parties to an investigation". It further noted that an investigating authority 
"must objectively assess the 'good cause' alleged for confidential treatment, and scrutinize the 
party's showing in order to determine whether the submitting party has sufficiently substantiated its request". The Appellate Body added that a panel tasked with reviewing whether an 
investigating authority has objectively assessed the "good cause" alleged by a party must examine 
this issue on the basis of the investigating authority's published report and its related supporting documents, and in the light of the nature of the information at issue and the reasons given by the 
submitting party for its request for confidential tr eatment. The Appellate Body noted that the type 
of evidence and the extent of substantiation the investigating authority must require will depend 
on the nature of the information at issue and the particular "good cause" alleged.
 However, the 
Appellate Body stressed that, in reviewing whether an investigating authority has assessed and 
determined objectively that "good cause" for confid ential treatment has been shown to exist, it is 
not for the panel to engage in a de novo  review of the record of the investigation and determine 
for itself whether the existence of "good cause" has been sufficiently substantiated by the 
submitting party. 
Turning to the present case, the Appellate Body recalled that, in finding that there was no 
evidence that MOFCOM objectively assessed the "g ood cause" alleged for confidential treatment, 
the Panel stressed that it was not concluding that MOFCOM could not have treated the full text of 
the reports contained in appendix V and the appendix to the petitioners' supplemental evidence of 29 March 2012 as confidential information. Rather, the Panel found that there was "no evidence that MOFCOM ever considered whether good cause had been shown for such treatment", and thus 
no evidence of an objective a ssessment. The Appellate Body saw no error in the Panel's finding 
that, in the absence of any evidence that MOFCOM objectively assessed the "good cause" alleged, it had no basis to conclude that MOFCOM undertook an objective assessment and properly 
determined that the petitioners had shown "goo d cause" for their requests for confidential 
treatment. The Appellate Body also saw no error in the Panel's conclusion that there was no basis for it to find that "MOFCOM properly determined  that the petitioners had shown 'good cause' for 
their requests for confidential treatment from the fact that MOFCOM ultimately granted their 
request for confidential treatment." 
China also claimed that the Panel applied an erroneous standard of review and failed to make an 
objective assessment of the facts before it, contra ry to the requirements of Article 11 of the DSU 
and Article 17.6(i) of the Anti-Dumping Agreement by: (i) erroneously limiting its review to 
assessing whether MOFCOM had explained why it considered that the full text of the reports at issue warranted confidential treatment; (ii) applying internally inconsistent reasoning in its 
analysis of the claims under Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement; and 
(iii) making the case for the complainants with regard to their claims under Article 6.5 of the Anti-Dumping Agreement.  
First, the Appellate Body rejected China's claim that the Panel applied an incorrect standard of 
review because it failed to take into account the information on the record. The Appellate Body did not consider that the Panel would have complied with the applicable standard of review if, in the absence of any evidence of the objective asse ssment of the "good cause" by MOFCOM, it had 
engaged in a de novo  review of evidence on the record of the investigation and determined for 
itself, or on the basis of subjective concerns of the petitioners, whether the request for confidential 
treatment was sufficiently substantiated and that "good cause" for such treatment objectively 
existed.  WT/AB/26 
 
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  The Appellate Body next turned to examine China' s claim that, contrary to Article 11 of the DSU, 
the Panel applied internally inconsistent reasoning in its analysis of the complainants' claims under Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement. China contended that, unlike under 
Article 6.5, in its analysis under Article 6.5.1 of the Anti-Dumping Agreement, the Panel did not 
take issue with the absence of explanations by MOFCOM, and focused its examination, instead, on 
the non-confidential summaries provided by the peti tioners, as well as the statements provided by 
the petitioners as to why summarization was not possi ble. Having examined the text of Articles 6.5 
and 6.5.1 of the Anti-Dumping Agreement, the A ppellate Body noted that, although the subject 
matter of Article 6.5 and Article 6.5.1 is similar, the nature of the obligations that apply under the two provisions is different. The Appellate Body did not consider that the Panel's approach to addressing the complainants' claims under Articl es 6.5 and 6.5.1 of the Anti-Dumping Agreement 
was "internally inconsistent". Rather, the Panel, in its approach, properly reflected the distinct 
nature of the substantive legal obligation at i ssue in each case. The Appellate Body, therefore, 
disagreed with China that, contrary to Article 11 of  the DSU, the Panel failed to make an objective 
assessment of the matter before it by applying an "internally inconsistent" reasoning in its 
examination of the claims under Articles 6. 5 and 6.5.1 of the Anti-Dumping Agreement. 
Finally, the Appellate Body turned to China's cl aim that the Panel acted inconsistently with 
Article 11 of the DSU by finding that China acted inconsistently with Article 6.5 of the 
Anti-Dumping Agreement on grounds not alleged by the complainants in their first written submissions contrary to paragraph 7 of the Joint Working Procedures of the Panel. The 
Appellate Body recalled that, in their panel requests, the complainants had alleged that China 
acted inconsistently with Article 6.5 because MOFCOM treated information supplied by the 
applicants as confidential "without good cause shown". The Appellate Body considered this language to have been sufficient to put China on notice that the question of whether MOFCOM 
objectively assessed the "good cause" alleged by the petitioners would be an issue in these 
disputes. The Appellate Body did not consider th at the language of Paragraph 7 of the Joint 
Working Procedures of the Panel precluded the complainants from further elaborating on the 
claims identified in their panel requests in response to the Panel's questioning. Moreover, the 
Appellate Body recalled that panels are entitled to ask questions that they deem relevant to the consideration of the issues before them, and to "freely use arguments submitted by any of the parties – or to develop its own legal reasoning – to support its own findings and conclusions on the 
matter under its consideration". The Appellate Body therefore disagreed with China's argument 
that the Panel made the case for the complainants and thereby acted inconsistently with Article 11 of the DSU. 
On the basis of the foregoing reasons, the Appellate Body upheld the Panel's findings, in both 
Panel Reports, that China acted inconsistently with Article 6.5 of the Anti-Dumping Agreement 
because MOFCOM permitted the full text of the four reports at issue to remain confidential without 
objectively assessing whether the petitioners had shown "good cause" for such treatment. 
4.6.4  Disclosure of the essential facts – Article 6.9 of the Anti-Dumping Agreement 
The European Union appealed the Panel's re jection, in the EU Panel Report, of the 
European Union's claim that China acted inconsistently with Article 6.9 of the Anti-Dumping 
Agreement because MOFCOM failed to adequately disclose the essential facts in connection with 
the data underlying MOFCOM's determination of  dumping concerning SMST and Tubacex. The 
European Union argued that, contrary to what the Panel's analysis appeared to suggest, the 
"[m]ere possession of the data set from which the facts have been selected is clearly insufficient 
for the interested party to defend its interests". The Appellate Body noted that essential facts are, 
therefore, "those that are salient for a decision to apply definitive measures, as well as those that 
are salient for a contrary outcome." In order to apply a definitive measure, an investigating 
authority must find dumping, injury to the dome stic industry, and a causal link between dumping 
and injury; these findings, in turn, are based on various intermediate findings and conclusions reached by the investigating authority. Whether a particular fact is essential or "significant in the 
process of reaching a decision" depends on the nature and scope of the particular substantive 
obligations, the content of the particular findings needed to satisfy the substantive obligations at issue, and the factual circumstances of each  case, including the arguments and evidence 
submitted by the interested parties. The Appellate Body explained that it did not see how the mere 
fact that the investigating authority may be referring to data that are in the possession of an interested party would mean that it has disclosed the essential facts in a coherent way, so as to 
permit an interested party to understand the basis for each of the intermediate findings and WT/AB/26 
 
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  conclusions reached by the authority and the decision whether or not to apply definitive measures 
such that it is able properly to defend its interests. 
With regard to the disclosure of essential facts in  the context of the determination of dumping, the 
Appellate Body stated that an investigating authority would be expected to disclose, inter alia , the 
home market and export sales being used, the adjustments made thereto, as well as the 
calculation methodology applied by the investigating authority to determine the margin of dumping. The Appellate Body pointed out that, wh ile Article 6.9 does not prescribe a particular 
form for the disclosure of the essential facts, it does require that the investigating authority 
discloses those facts in such a manner that an interested party can understand clearly what data the investigating authority has used, and how that data was used to determine the margin of dumping.  
In the present case, the Appellate Body understood the Panel to have considered that a 
determination of whether an investigating authority has complied with its obligations under Article 6.9 hinges largely on whether the essential facts under consideration by the investigating 
authority were in the possession of an interest ed party affected by the determination. The 
Appellate Body disagreed with the Panel's proposition that a narrative description of the data used would constitute sufficient disclosure simply because the essential facts the authority is referring to 
"are in the possession of the respondent". The A ppellate Body did not see how the mere fact that 
the investigating authority may be referring to data that is in the possession of an interested party would mean that it has disclosed the essential facts in a coherent way, so as to permit an interested party to understand the basis for the decision whether or not to apply definitive 
measures and to defend its interests.  
In the light of the above, the Appellate Body found  that the Panel erred in its interpretation of 
Article 6.9 of the Anti-Dumping Agreement, and subsequently relied on this erroneous 
interpretation in its findings. The Appellate Body, therefore, reversed the Panel's finding, in the 
EU Panel Report, rejecting the European Union's claim that China acted inconsistently with Article 6.9 of the Anti-Dumping Agreement because MOFCOM failed to disclose adequately the 
essential facts in connection with the data underlying MOFCOM's determination of dumping 
concerning SMST and Tubacex. 
The Appellate Body then turned to complete the analysis under Article 6.9 of the Anti-Dumping 
Agreement. Having reviewed MOFCOM's prelimin ary and final dumping disclosures, the Appellate 
Body considered that MOFCOM did not disclose the essential facts underlying its dumping 
determinations so as to permit the companies concerned to understand clearly what data MOFCOM had used, and how that data had been used to determine the margins of dumping for SMST and 
Tubacex. Hence, the Appellate Body found that Ch ina acted inconsistently with Article 6.9 of the 
Anti-Dumping Agreement because MOFCOM failed to disclose adequately the data underlying its determination of dumping concerning SMST and Tubacex. 
4.6.5  MOFCOM's injury determination 
Each of the three participants appealed different aspects of the Panel's findings relating to 
MOFCOM's injury determination. Hence, the Appe llate Body began by summarizing the relevant 
obligations under Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement regarding the 
conduct of injury investigations. 
The Appellate Body recalled that Article 3.1 of  the Anti-Dumping Agreement is an overarching 
provision that sets forth a Member's fundamental, substantive obligation concerning the injury 
determination, and informs the more detailed obligations in the succeeding paragraphs. Several of 
the remaining paragraphs of Article 3 then elabor ate on the elements that must be objectively 
examined, based on positive evidence, pursuant to  Article 3.1. The Appellate Body reiterated its 
statement in China – GOES  that these paragraphs of Article 3 contemplate a logical progression in 
the investigating authority's examination leading to an ultimate determination of whether dumped imports are causing material injury to the domestic industry. The Appellate Body also emphasized that Article 3 does not prescribe a specific methodology to be relied on by an investigating 
authority in its determination of injury, and that there is no prescribed template or format that an 
investigating authority must adhere to in making its determination of injury, provided that its determination comports with the disciplines that apply under the discrete paragraphs of Article 3.  WT/AB/26 
 
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  4.6.5.1  Price effects – Articles 3.1 and 3.2 of the Anti-Dumping Agreement 
Japan and the European Union claimed that the Panel erred in rejecting their claim that MOFCOM's 
determination of price undercutting in respect of Grade C imports was inconsistent with Articles 3.1 and 3.2 of the Anti-Dumping Agr eement by failing to consider whether Grade C 
dumped imports had any price undercutting effect on domestic Grade C products, in the sense of 
placing downward pressure on those domestic prices by being sold at lower prices. The European Union also appealed the Panel's finding rejecting the European Union's claim that 
MOFCOM acted inconsistently with Articles 3.1 and 3.2 by extending its finding of price 
undercutting in respect of imports of Grades B an d C HP-SSST to the domestic like product as a 
whole, including Grade A HP-SSST. 
As regards the claim on appeal by both complainan ts, the Appellate Body considered that a proper 
reading of "price undercutting" suggests that the inquiry under Article 3.2 requires a dynamic 
assessment of price developments and trends in  the relationship between the prices of the 
dumped imports and those of domestic like produc ts over the entire duration of the POI. An 
examination of such developments and trends in cludes assessing whether import and domestic 
prices are moving in the same or contrary directions, and whether there was a sudden and substantial increase in the domestic prices. The Appellate Body noted that what amounts to 
significant  price undercutting, that is, undercutting is important, notable, or consequential, will 
necessarily depend on the circumstances of each case. In order to assess whether the observed price undercutting is significant, an investigating authority may, depending on the case, rely on all positive evidence relating to the nature of the product or product types at issue, how long the 
price undercutting has been taking place and to what extent, and, as appropriate, the relative 
market shares of the product types with respect to which the authority has made a finding of price undercutting. An investigating authority must, pursuant to Article 3.1, objectively examine all 
positive evidence, and may not disregard relevant  evidence suggesting that prices of dumped 
imports have no, or only a limite d, effect on domestic prices. 
In the light of the above, the Appellate Body found  that the Panel erred in its interpretation of 
Article 3.2 in finding that, when considering whether there has been significant price undercutting, 
an investigating authority may simply consider whether subject imports sell at lower prices than comparable domestic products. The Panel's finding rejecting the complainants' claims regarding MOFCOM's analysis of whether there was a significant price undercutting by Grade C dumped 
imports was based on the Panel's erroneous interpretation of Article 3.2. Therefore, the 
Appellate Body reversed the Panel's conclusions,  in both Panel Reports, regarding MOFCOM's 
finding of price undercutting with respect to Grade C HP-SSST. The Appellate Body then completed 
the legal analysis and found that MOFCOM's asse ssment of whether there had been a significant 
price undercutting by Grade C imports from Japan and the European Union, as compared with the price of the domestic Grade C HP-SSST, is inco nsistent with Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement. 
With respect to the European Union's appeal that the Panel erred, in the EU Panel Report, in its 
assessment of MOFCOM's finding of price undercutting for the domestic product as a whole, the Appellate Body agreed with the Panel that an investigating authority is not required, under 
Article 3.2, to establish the existence of price undercutting for each of the product types under 
investigation, or with respect to the entire rang e of goods making up the domestic like product. 
The Appellate Body found, however, that with respect to its consideration of whether there has 
been significant price undercutting, an investigating authority must undertake a dynamic 
assessment of price developments and trends in  the relationship between the prices of the 
dumped imports and those of the domestic like prod uct over the duration of the POI, taking into 
account all relevant evidence including, where appropriate, the relative market shares of each 
product type. Furthermore, an investigating authority's consideration of price effects under Article 3.2 must provide a meaningful basis fo r subsequently determining whether the dumped 
imports are causing injury to the domestic industry, within the meaning of Article 3.5. The 
Appellate Body therefore disagreed with the Pane l that MOFCOM was not required to assess price 
undercutting in relation to the proportion of domestic production for which no price undercutting was found. Accordingly, the Appellate Body reversed the Panel's finding in the EU Panel Report, 
and found instead that MOFCOM's assessment of whether there had been a significant price 
undercutting by the dumped imports, as compared with the price of the domestic like product, is inconsistent with Articles 3.1 and 3.2 of the Anti-Dumping Agreement. WT/AB/26 
 
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  4.6.5.2  MOFCOM's impact analysis – Ar ticles 3.1 and 3.4 of the Anti-Dumping 
Agreement  
Japan claimed that the Panel erred in finding, in China – Measures Imposing Anti-Dumping Duties 
on High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan , WT/DS454/R 
(Japan Panel Report), that Japan's claim regarding MOFCOM's failure to examine whether dumped 
imports had explanatory force for the state of the domestic industry fell outside the Panel's terms 
of reference. In addition, Japan and the European Union claimed that the Panel erred, in both 
Panel Reports, in its interpretation and application of Articles 3.1 and 3.4 of the Anti-Dumping 
Agreement in rejecting their claims that MOFCOM was required to undertake a segmented analysis of the impact of dumped imports on the state of the domestic industry, having found no significant 
increase in the volume of dumped imports, and having found price effects with respect to Grades B 
and C only. 
With respect to Japan's claim regarding the Panel' s terms of reference, the Appellate Body found 
that Japan's arguments  regarding "explanatory force" did not constitute a separate "claim" under 
Articles 3.1 and 3.4 of the Anti-Dumping Agreemen t. Accordingly, there was no basis for the Panel 
to consider, as it did, whether such "claim" was properly within the scope of its terms of reference. Consequently, the Appellate Body declared the Panel's findings with respect to such "claim", in the 
Japan Panel Report, to be moot and of no legal effect. 
The Appellate Body then addressed the complainants ' claims that the Panel erred, in both Panel 
Reports, in its interpretation and application of Articles 3.1 and 3.4 of the Anti-Dumping Agreement in rejecting their claims that MOFCOM was required to undertake a segmented analysis 
of the impact of dumped imports on the state of the domestic industry, having found no significant 
increase in the volume of dumped imports, and having found price effects with respect to Grades B and C only. The Appellate Body did not agree with the Panel that because the results of the inquiry 
under Article 3.2 are relevant for an investigating authority's causation and non-attribution 
analyses under Article 3.5, they are not relevant for the impact analysis under Article 3.4. Furthermore, the Appellate Body recalled that Ar ticle 3.4 does not merely require an examination 
of the state of the domestic industry, but contempl ates that an investigating authority derive an 
understanding of the impact of subject import s on the basis of such an examination. The 
Appellate Body clarified that, similar to the cons ideration under Article 3.2, the examination under 
Article 3.4 contributes to, rather than duplicates, the overall determination required under 
Article 3.5. The Appellate Body added that, depe nding on the particular circumstances of each 
case, an investigating authority may therefore be required to take into account, as appropriate, the relative market shares of product types with respect to which it has made a finding of price 
undercutting; and the duration and extent of price undercutting, price depression or price 
suppression, that it has found to exist. 
Hence, the Appellate Body found that the Panel erred in its interpretation of Articles 3.1 and 3.4 of 
the Anti-Dumping Agreement to the extent it found that the results of the inquiries under 
Article 3.2 are not relevant to the impact analysis under Article 3.4. The Appellate Body understood the Panel to have relied on its erroneous interpretation of Articles 3.1 and 3.4 in rejecting the complainants' claims that China acted inconsistently with Articles 3.1 and 3.4 of the 
Anti-Dumping Agreement because MOFCOM was requ ired to, but did not, undertake a segmented 
impact analysis. Accordingly, the Appellate Body reversed these findings by the Panel. Having found that China acted inconsistently with its obligations under Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement, and in the light of the Panel's finding that MOFCOM's analysis of the 
impact of dumped imports on the domestic industry is inconsistent with China's obligations under Articles 3.1 and 3.4 because MOFCOM failed to ev aluate properly the magnitude of the margin of 
dumping, the Appellate Body did not consider that additional findings under Articles 3.1 and 3.4 
were required to resolve these disputes. 
4.6.5.3  MOFCOM's causation analysis – Ar ticles 3.1 and 3.5 of the Anti-Dumping 
Agreement 
Each of the three participants appealed different aspects of the Panel's findings on causation. In 
respect of the Japan Panel Report, China alleged that the Panel erred in concluding that Japan's panel request, as it relates to MOFCOM's reliance on the market share of dumped imports in order 
to determine causation, provides a "brief summary of the legal basis of the complaint sufficient to 
present the problem clearly", as required by Arti cle 6.2 of the DSU. In respect of both Panel WT/AB/26 
 
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  Reports, China submitted that the Panel incorrect ly interpreted and applied Article 3.5 of the 
Anti-Dumping Agreement in finding that MOFCOM  improperly relied on the market share of 
dumped imports in determining that such imports, through price undercutting, caused injury to the domestic industry. China also asserted that the Panel acted inconsistently with Article 11 of the 
DSU by ruling on a claim for which the complainants failed to make a prima facie  case. For their 
part, Japan and the European Union contended that the Panel acted inconsistently with Article 11 of the DSU in finding that the complainants had not brought independent claims under Article 3.5 
– other than those concerning MOFCOM's reliance on the market share of dumped imports and 
MOFCOM's non-attribution analysis. 
With respect to China's claim regarding Japan's panel request, the Appellate Body found that the 
language in Japan's panel request, when read together with the reference to Articles 3.1 and 3.5 
of the Anti-Dumping Agreement, was sufficiently clear to present, in a manner consistent with 
Article 6.2 of the DSU, the problem concerning MOFCOM's analysis of whether "the dumped imports are, through the effects of dumping, as set forth in paragraphs 2 and 4, causing injury" to 
the domestic industry, as required under Article 3.5 of the Anti-Dumping Agreement. Hence, the 
Appellate Body found that the Panel did not act inconsistently with Article 6.2 of the DSU by 
addressing Japan's claims under Article 3.5 of the Anti-Dumping Agreement regarding MOFCOM's 
reliance on the market share of subjec t imports, in the Japan Panel Report. 
In respect of both Panel Reports, China argued that, in making findings regarding "MOFCOM's 
reliance on the market share of subject imports", the Panel acted inconsistently with Article 11 of 
the DSU by ruling on a claim that had not been articulated by the complainants, and in relation to 
which the complainants had raised no arguments. In the alternative, China argued that the Panel 
deprived China of its due process rights and "made the case" for both Japan and the 
European Union by ruling on a claim in respect of which the complainants had failed to make a 
prima facie  case. The Appellate Body considered that the complainants put forward sufficient 
evidence and legal argument to support their claims under Article 3.5 of the 
Anti-Dumping Agreement. Accordingly, the Appe llate Body found that the Panel did not act 
inconsistently with Article 11 of the DSU. 
China further alleged that the Panel erred in its interpretation and application of Articles 3.1 
and 3.5 of the Anti-Dumping Agreement, and acted inconsistently with Article 11 of the DSU, in 
concluding that MOFCOM's reliance on the market share of dumped imports was not sufficient to 
establish that these imports had a relatively big im pact on the price of the domestic like products, 
and that they caused injury to the domestic in dustry through their price effects. The Appellate 
Body recalled that the task of a WTO panel is to examine whether the investigating authority has 
adequately performed its investigative function, and has adequately explained how the evidence 
supports its conclusions. The Appellate Body stated  that it follows from the requirement that the 
investigating authority provide a "reasoned and adequate" explanation for its conclusions that the 
entire rationale for the investigating authority's decision must be set out in its report on the 
determination. This is not to say that the me aning of a determination cannot be explained or 
buttressed by referring to evidence on the record. Yet, in all instances, it is the explanation provided in the report of the investigating authorities and its related supporting documents that is 
to be assessed in order to determine whether the determination was sufficiently explained and 
reasoned. For this, and a variety of other reasons, the Appellate Body upheld the Panel's findings, in both Panel Reports, that China acted inconsistently with Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement because MOFCOM improper ly relied on the market share of dumped 
imports, and its flawed price effects and impact analyses, in determining that a causal link existed between dumped imports and material injury to the domestic industry, and made no finding 
regarding cross-grade price effects whereby price undercutting by Grade B and C imports might be 
shown to affect the price of domestic Grade A HP-SSST. 
China argued that the Panel's findings relating to MOFCOM's non-attribution analysis relied entirely 
on MOFCOM's alleged failure to properly determine whether a causal link between dumped imports 
and material injury to the domestic industry exis ted. Referring to its contention that the Panel's 
findings in relation to MOFCOM's determination of the causal link (including those made in respect of MOFCOM's finding of price correlation) should be reversed, China contended that the Panel's 
finding that MOFCOM's non-attribution analysis is inconsistent with Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement should, as a consequence, also be reversed. WT/AB/26 
 
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  The Appellate Body observed that China's claims on appeal challenging the Panel's non-attribution 
analysis were purely consequential in the sense that they relied on China's arguments made in the context of challenging the Panel's finding regarding MOFCOM's causation determination which the Appellate Body had already rejected. The Appellate Body therefore upheld the Panel's findings, in 
both Panel Reports, that China acted inconsistently with Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement because MOFCOM failed to ensure that the injury caused by the 
decrease in apparent consumption and the increase in domestic production capacity was not 
attributed to the dumped imports. 
Finally, Japan and the European Union submitted that the Panel failed to make an objective 
assessment of the matter before it as required by  Article 11 of the DSU by  failing to examine the 
complainants' claims of independent violations of Articles 3.1 and 3.5 of the Anti-Dumping 
Agreement arising from MOFCOM's price effects and impact analyses. In the light of the language 
in the complainants' panel requests, the Appellate Body understood the complainants to have sought to challenge MOFCOM's causation analysis on several grounds, including on the basis of 
alleged flaws in MOFCOM's price effects and impa ct analyses. The Appellate Body noted that the 
complainants raised many of the same arguments in support of their claims under Article 3.5 as they did in support of their claims under Articles  3.2 and 3.4 of the Anti-Dumping Agreement, but 
saw no error in the Panel's finding that the complainants had not claimed, before the Panel, that 
MOFCOM's price effects and impact analyses, taken alone, resulted in independent  violations of 
Article 3.5 of the Anti-Dumping Agreement. Th e Appellate Body therefore upheld the Panel's 
finding that the complainants had not advanced any independent Article 3.5 claims – other than 
those concerning MOFCOM's reliance on market shares and MOFCOM's non-attribution analysis – 
concerning MOFCOM's price effects and impact analyses. 
4.6.6  Additional panel working procedures  concerning the protection of business 
confidential information (BCI) 
With respect to the EU Panel Report, the Europe an Union claimed that the Panel erred in its 
interpretation and application of Articles 17. 7 and 6.5 of the Anti-Dumping Agreement, and 
Article 18.2 of the DSU, when ruling on certain preliminary issues raised by the European Union 
regarding the additional working procedures adopte d by the Panel to protect business confidential 
information (BCI). 
The Appellate Body found that the Panel conflated: (i) the confidentiality obligations under 
Anti-Dumping Agreement setting the framework for confidential treatment of information that is 
applicable in the context of domestic anti-dumping proceedings; and (ii) the confidentiality obligations applicable in WTO dispute settlement proceedings. In addition, the Panel conflated: 
(i) confidentiality requirements generally applicable in WTO proceedings or in anti-dumping 
proceedings as foreseen in the above-mentione d provisions of the DSU and the Anti-Dumping 
Agreement; and (ii) the additional layer of protection of sensitive business information provided 
under special procedures adopted by a panel fo r the purposes of a particular dispute. The 
Appellate Body further stated that, contrary to what the Panel appears to have suggested, whether 
information treated as confidential pursuant to Article 6.5 of the Anti-Dumping Agreement, and 
submitted by a party to a WTO panel under the confidentiality requirements generally applicable in 
WTO dispute settlement, should receive additional  confidential treatment as BCI, is to be 
determined in each case by a panel. It rests upon the panel to adjudicate any disagreement or dispute that may arise under those procedures regarding the designation or the treatment of 
information as business confidential. In addition, where necessary, a panel must draw appropriate 
inferences from a party's failure to provide requested information to the panel. The Appellate Body also clarified that any additional procedures adop ted by a panel to protect the confidentiality of 
sensitive business information should go no furthe r than necessary to guard against a determined 
risk of harm (actual or potential) that could result from disclosure, and must be consistent with the relevant provisions of the DSU and other cove red agreements (including the Anti-Dumping 
Agreement).  
For these reasons, the Appellate Body declared moot and of no legal effect the Panel's findings and 
legal reasoning concerning its adoption of BCI procedures in the EU Panel Report. The Appellate Body did not consider it necessary to make further findings on this matter in order to resolve the 
present disputes. WT/AB/26 
 
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  4.7  Appellate Body Report, United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products  - Recourse to Article 21.5 of the DSU by 
Mexico, WT/DS381/AB/RW  
These proceedings under Article 21.5 of the DSU arose from certain challenges brought by Mexico 
against the United States' labelling regime for "dolphin-safe" tuna products and the 
implementation by the United States of the DSB's recommendations and rulings in US – Tuna II 
(Mexico) .  
Commercial tuna fishing can have harmful effects on marine mammals, including dolphins. In the 
Eastern Tropical Pacific Ocean (ETP), there is a regular association between tuna and dolphins, in that schools of tuna tend to swim beneath dolphins. Certain vessels operating in this ocean area thus employ the fishing technique known as "setting on" dolphins, which involves chasing and 
encircling the dolphins with a purse-seine net in order to catch the tuna swimming beneath them. 
Mexico's tuna fishing fleet consists primarily of large purse-seine vessels operating in the ETP using the method of setting on dolphins. By contrast, the United States' and other tuna fishing 
fleets catch tuna primarily outside the ETP using other fishing methods.  
In order to ensure that consumers are not misled about whether tuna products contain tuna 
caught in a manner that adversely affects dolphins, and thereby to contribute to the protection of 
dolphins, the United States established a domestic regime for labelling tuna products as 
"dolphin-safe". The United States' measure (the original tuna measure) consisted of: the Dolphin Protection Consumer Information Act ("DPCIA"); the regulations implementing the DPCIA; and a 
ruling by a US Federal Appeals Court in Earth Island Institute v. Hogarth  relating to the application 
of the DPCIA (Hogarth ruling). In the orig inal proceedings, the Appellate Body found, inter alia , 
that the US dolphin-safe labelling regime treated Mexican tuna products less favourably than like products of US and other origins, thus being inconsistent with Article 2.1 of the TBT Agreement. As 
a result, on 9 July 2013, the United States adopted a legal instrument entitled 
"Enhanced Document Requirements to Support Use of the Dolphin Safe Label on Tuna Products" 
(2013 Final Rule), which made certain changes to  the regulations implementing the DPCIA, while 
leaving the DPCIA and the Hogarth ruling unchanged. Mexico considered that the United States 
had not brought its dolphin-safe labelling regime into compliance with the covered agreements, and that its measure (the amended tuna measure) remains inconsistent with Article 2.1 of the TBT Agreement and Articles I: 1 and III:4 of the GATT 1994. 
The amended tuna measure sets out several conditions for access to the dolphin-safe label. First, 
it disqualifies from that label all tuna products derived from tuna caught by setting on dolphins. Second, all other tuna products – i.e. those contai ning tuna caught by other fishing methods – are 
eligible for the label only if no dolphins were killed or seriously injured in the sets in which the tuna 
were caught. In order to verify that these condit ions are met, the measure prescribes a number of 
certification and tracking and verification requirements, which distinguish among three categories 
of fisheries: (i) large purse-seine vessels in the ETP (the ETP large purse-seine fishery); 
(ii) purse-seine vessels outside the ETP (the non-ETP purse-seine fishery); and (iii) other fisheries, which include non-purse-seine vessels in any ocean area and small purse-seine vessels in the ETP (all other fisheries). In order to obtain the dolphin-safe label, all tuna products must be 
accompanied by a certification that no dolphins were killed or seriously injured in the sets in which 
the tuna were caught. In addition, tuna products derived from tuna caught by purse-seine vessels in the first two categories of fisheries must be accompanied by a certification that no setting on 
dolphins occurred during the voyage on which the tuna were caught. For tuna products originating 
in the ETP large purse-seine fishery, the relevant certifications must be provided by both the vessel captain and an observer approved by  the International Dolphin Conservation 
Program (IDCP). For tuna products originating in other fisheries, the relevant certifications have to 
be provided by the vessel captain only. However, certain provisions in the amended tuna measure (the determination provisions) authorize the US National Marine Fisheries Service (NMFS) Assistant Administrator to impose observer certification in any such other fishery upon determining that the 
risks to dolphins in that fishery are similar to those arising in the ETP large purse-seine fishery. At 
the time of the Article 21.5 proceedings, the NMFS Assistant Administrator had not made any such determination. Finally, access to the dolphin-safe label requires documentary proof that 
dolphin-safe tuna has been segregated from non-dolphin-safe tuna from the moment of the catch 
through the entire processing chain. This requir ement applies to all categories of fisheries. 
However, tuna caught in the ETP large purse-seine fishery is subject to more detailed 
requirements, as tracking and verification of tuna caught in this fishery must be conducted WT/AB/26 
 
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  consistently with the international Agreement on the International Dolphin Conservation 
Program (AIDCP), to which both the United States and Mexico are parties. In particular, the AIDCP requires that tuna products originating in the ETP large purse-seine fishery be accompanied by Tuna Tracking Forms (TTFs), used to separately re cord dolphin-safe and non-dolphin-safe sets on 
a particular fishing trip. 
Preliminarily, the Panel disagreed with the United States that only the 2013 Final Rule, adopted in 
response to the DSB's rulings and recommendations in the original proceedings, was at issue in 
these Article 21.5 proceedings. The Panel found, instead, that the measure properly at issue 
before it was the amended tuna measure as a whole  – i.e. all the legal instruments constituting 
the original tuna measure as amended by the 2013 Final Rule. The Panel also  observed that even 
if the 2013 Final Rule left some elements of the original measure unchanged, it may have altered 
their legal import and significance by amendi ng other elements of the US dolphin-safe 
labelling regime. 
The Panel considered that Mexico had identified three regulatory distinctions, drawn by the 
amended tuna measure, whose design and applicatio n give rise to less favourable treatment within 
the meaning of Article 2.1 of the TBT Agreement,  namely: (i) the "eligibility criteria", i.e. the 
disqualification from the label of tuna products derived from tuna caught by setting on dolphins, 
coupled with the eligibility for such a label of tuna products deriving from tuna caught by other 
fishing methods; (ii) the "certification requirements ", i.e. the observer certification requirements in 
the ETP large purse-seine fishery, coupled with  the absence of such requirements in other 
fisheries; and (iii) the "tracking and verification  requirements", i.e. the different record-keeping 
and verification requirements for tuna caught in the ETP large purse-seine fishery and for tuna 
caught in other fisheries. Thus, the Panel proceeded to undertake separate analyses, and to make separate findings, in respect of each of the three elements of the amended tuna measure. 
With respect to the eligibility criteria, the Panel ex pressed the view that the Appellate Body had, in 
the original proceedings, definitively established that the United States can disqualify tuna caught by setting on dolphins from accessing the dolphin-safe label. The Panel thus reaffirmed the 
Appellate Body's finding that, to the extent that they modify the conditions of competition to the 
detriment of Mexican tuna products, the eligibility criteria are not inconsistent with Article 2.1. As regards the certification requirements, the Pa nel found that observer coverage involves the 
expenditure of significant resources. It therefore held that the certification requirements impose a 
greater burden on tuna products originating in the ETP large purse-seine fishery than on like 
products originating in other fisheries. Since the Mexico catches tuna primarily in the ETP large purse-seine fishery, the Panel concluded that the certification requirements measure modifies the 
conditions of competition to the detriment of Mexican tuna products. The Panel also found that 
certifying the dolphin-safe status of tuna catch is a highly complex task, and that the United States had not sufficiently explained why it assumed that captains would be capable of carrying it out. 
The Panel concluded that the certification requir ements are not even-handed, and are therefore 
inconsistent with Article 2.1.
28 The Panel further found that the "determination provisions" also 
lacks even-handedness, as they are designed in a manner whereby like tuna products may be subject to different requirements even where the risks to dolphins in fisheries outside the 
ETP large purse-seine fishery are the same as thos e inside that fishery. Finally, the Panel found 
that the tracking and verification requirements applicable to tuna caught in the ETP large purse-seine fishery are significantly more burdenso me than those applicable to tuna caught in 
other fisheries, thus modifying the conditions of competition to the detriment of Mexican tuna 
products. In the Panel's view, the United States had failed to explain sufficiently how the different tracking and verification requirements relate to the policy objectives pursued by the amended tuna 
measure. The Panel thus found that the tracking and verification requirements are not 
even-handed, and are therefore inconsistent with Article 2.1. 
In addressing the consistency of the amended t una measure with Articles I:1 and III:4 of the 
GATT 1994, the Panel considered it appropriate to refer back to its findings made in the context of 
its detrimental impact analysis under Article 2.1. It thus found that, by modifying the conditions of 
                                               
28 One panelist issued a separate opinion stating that, even assuming that captain certification is less 
accurate than observer certification, the United States may legitimately "calibrate" its measure so as to tolerate a larger margin of error in fisheries outsid e the ETP, which present a lo wer rate of tuna-dolphin 
association and therefore a lower risk to dolphins. WT/AB/26 
 
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  competition to the detriment of like Mexican tuna products, the eligibility criteria, the certification 
requirements, and the tracking and verification requirements are inconsistent with Articles I:1 and III:4. With respect to the United States' defence under Article XX, the Panel found that the three sets of requirements relate to the conservation of exhaustible natural resources and are 
therefore provisionally justified under subpara graph (g) of Article XX of the GATT 1994. 
It exercised judicial economy on the question of whether such requirements are necessary to 
protect animal life or health under subparagraph (b). Turning to the issue of whether the three 
sets of requirements are applied in a manner cons istent with the chapeau of Article XX, the Panel 
relied on its reasoning concerning whether such re quirements are even-handed under Article 2.1 of 
the TBT Agreement. Thus, the Panel held that the eligibility criteria are applied consistently with the chapeau. Conversely, it found that the ce rtification requirements and the tracking and 
verification requirements are not applied consis tently with the chapeau, and are therefore not 
justified under Article XX.
29 
4.7.1  Business confidential information 
The Panel redacted certain text from its Report, which it characterized as containing business 
confidential information (BCI). On appeal, Mexico also redacted certain portions of its appellee's submission. The European Union, as a third particip ant, asserted that its ability to comment on the 
Panel Report had been impaired by the Panel's redactions. The Appellate Body saw no indication in 
the Panel record suggesting that either Mexico or the United States requested the adoption of special procedures to protect BCI, or that the Pa nel had adopted such special procedures. Also, the 
Panel did not indicate the criteria used to identify the information considered to constitute BCI. 
Therefore, the Appellate Body did not see the lega l basis for the Panel to redact portions of its 
reasoning from its Report. The Appellate Body observed that, absent any request from the 
participants, procedures for additional protection of BCI did not apply in the appellate proceedings. 
4.7.2   The amended tuna measure as a whole 
Mexico claimed that the Panel erred in reaching  findings of inconsistency in a narrow manner 
rather than concluding that the amended tuna measur e, as a whole, is inconsistent with Article 2.1 
of the TBT Agreement and Articles I:1 and III:4 of  the GATT 1994. Specifically, Mexico considered 
that the Panel erred in finding that only two of the three elements of the amended tuna measure – 
the "certification requirements" and the "tracking and verification requirements", but not the "eligibility criteria" – are inconsistent with the covered agreements. According to Mexico, it is the 
amended tuna measure that violates WTO provisions and not its individual elements considered in 
isolation. 
The Appellate Body noted that the Panel segmen ted its analysis and separately addressed the 
three elements of the amended tuna measure at ev ery stage of its analysis under the substantive 
obligations contained in Article 2.1 of the TB T Agreement and Articles I:1 and III:4 of the 
GATT 1994, as well as the exceptions contained in Article XX of the GATT. In addition, the Panel 
made discrete findings  regarding the conformity of each element  with the applicable legal 
obligation. At no point in its Report did the Panel reach a finding of consistency or inconsistency of the amended tuna measure as a whole  with a substantive obligation of the WTO covered 
agreements. 
Referring to its decisions in EC – Asbestos  and EC – Seal Products , the Appellate Body highlighted 
that analysing a measure in a segmented manner may raise concerns when the constituent parts of the measure are interrelated and operate in an integrated way, particularly in cases where the 
inclusion or exclusion of certain elements in the definition of the measure can  affect the legal 
characterization, or substantive analysis of the measure. The Appellate Body indicated that, as a general matter, it is not necessarily inappropriate for a panel, in analysing the conformity of a 
measure with obligations under the WTO covered agreements, to proceed by assessing different 
elements of the measure in a sequential manner. In scenarios where the elements of a measure are interrelated, however, and certain elements cannot be properly understood without reference 
to other elements of the measure, a segmented approach may create artificial distinctions 
constituting legal error. Furthermore, depending on the nature of the legal obligation at issue, such 
                                               
29 For the same reasons outlined in fn 25 above, one panelist issued a separate opinion stating that the 
certification requirements are calibrat ed to the different risks to dolphins arising in different fisheries. WT/AB/26 
 
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  a segmented approach may raise concerns when a panel fails to make an overall assessment that 
synthesizes its reasoning or intermediate conclusions concerning related elements of a measure at issue so as to reach a proper finding of consistenc y or inconsistency in respect of that measure.  
The Appellate Body noted that various "connect ions" between the different elements of the 
amended tuna measure were relevant to the regulato ry distinctions examined by the Panel. First, 
the measure establishes a labelling regime consisting of various components that are aimed at fulfilling the same objectives of providing information to consumers and contributing to the 
protection of dolphins. Moreover, the two substantive conditions for access to the dolphin-safe 
label – "no setting on dolphins" and "no dolphins killed or seriously injured" – are both defined by, and verified through, the associated certification and tracking and verification requirements. Thus, for all covered fisheries, compliance with these substantive conditions is demonstrated through the 
provision of certain certifications. Finally, the rules regarding the tracking of tuna are also based 
on the substantive conditions and depend, inter alia , on the certifications accompanying tuna 
products. The Appellate Body thereby concluded that the substantive conditions for gaining access 
to the dolphin-safe label cannot be properly understood without reference to the certification and 
tracking and verification requirements that define, and demonstrate compliance with, those very conditions. 
The Appellate Body expressed concern with the Pa nel's decision to conduct its analysis in a 
segmented manner. For instance, in its consideration of the "eligibility criteria", the Panel examined only the substantive condition of "no setting on dolphins", thereby, excluding consideration of the other substantive condition for access to the dolphin-safe label, namely the 
"no dolphins killed or seriously injured" condition. Similarly, in its analysis of the certification and 
tracking and verification requirements, the Panel considered that such requirements are relevant 
only to tuna eligible for the dolphin-safe label, that is, only to tuna not caught by setting on 
dolphins. In so proceeding, the Panel did not assess how the certification and tracking and 
verification requirements interrelate with each other and with the other substantive condition for access to the label. The Appellate Body observed that, while the amended tuna measure 
introduced certain changes in the original measure,  these did not alter the overall architecture of 
the US dolphin-safe labelling regime by somehow undermining the existence of interrelationships among its constituent elements, but rather reinforc ed the nature of those interrelationships. The 
Panel, however, did not adopt an analytical approach to the measure similar to the one used by 
the panel and the Appellate Body in the original proceedings, and did not, in its reasoning, discuss 
how the various findings that it made regarding the separate sets of requirements related to one another, or the basis on which it proceeded to  make discrete findings of consistency and 
inconsistency notwithstanding the interrelationships among the various elements of the measure. 
The Appellate Body saw no merit in analysing the consequences of the Panel's segmented 
approach in the abstract. Rather, the Appellate Body  recognized that a proper appreciation of the 
extent to which the interrelationships are relevant, and the extent to which a segmented analysis 
had a bearing on the outcome of the legal analysis , would be a function of the particular legal 
obligations under examination – in this case, those set out in Article 2.1 of the TBT Agreement and Articles I:1, III:4, and XX of the GATT 1994. Ther efore, the Appellate Body decided to analyse 
whether the Panel's segmented approach amounted to, or led it to commit, legal error when it 
examined the specific claims raised on appeal. 
4.7.3  Article 2.1 of the TBT Agreement 
The Appellate Body began by recalling that the in quiry into whether a technical regulation accords 
less favourable treatment to imported products than to like domestic products or like products imported from other countries consists of a two-step analysis. The first step of the analysis focuses 
on whether the technical regulation at issue modifies the conditions of competition to the 
detriment of such imported products vis-à-vis like products of domestic origin and/or like products originating in any other country. The second step of the analysis focuses on whether the detrimental impact on imports stems exclusively from a legitimate regulatory distinction.  
As for the burden of demonstrating these elements , the Appellate Body recalled that the burden of 
proof rests upon the party, whether complaining or defending, who asserts a particular claim or defence. Under Article 2.1, this means that a complainant must show that, under the technical 
regulation at issue, the treatment accorded to imported products is less favourable than that 
accorded to like domestic products or like products originating in any other country. Provided that WT/AB/26 
 
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  it has shown detrimental impact, a complainant may, therefore, make a prima facie  showing of 
less favourable treatment by, for example, addu cing evidence and arguments showing that the 
measure is not even-handed, which would suggest that the measure is inconsistent with Article 2.1. If, however, the respondent shows th at the detrimental impact on imported products 
stems exclusively from a legitimate regulatory distinction, it follows that the challenged measure is 
not inconsistent with Article 2.1.  
The Appellate Body cautioned that these rules and principles must not be applied in an unduly 
formalistic or mechanistic fashion, nor inhibit the substantive analysis that must be undertaken by 
a panel. In seeking to make out a claim of de facto  discrimination, a complainant may elect to rely 
on some or all of the same regulatory distinctio ns and evidence as to how they are designed and 
operate in the relevant market both to establish de facto  detrimental impact and to show that the 
regulatory distinctions drawn under the technical regulation involve a lack of even-handedness. 
While the complaining party bears the burden of making its prima facie  case, the responding party 
must prove the case it seeks to make in response, and each party bears the burden of 
substantiating the assertions that it makes. Having promulgated the technical regulation 
containing the regulatory distinctions that result in the detrimental impact, the responding Member will be best situated to adduce the arguments and evidence needed to explain why, contrary to the 
complainant's assertions, the technical regulation is even-handed and thus why the detrimental 
impact on imports stems exclusively from a legitimate regulatory distinction. The Appellate Body observed that, as noted in the original proceedings,  although the burden of proof to show that the 
US dolphin-safe labelling provisions were inconsistent with Article 2.1 was on Mexico as the 
complainant, it was for the United States to support its assertion that its regime was "calibrated" 
to the risks to dolphins arising from different fishing methods in different areas of the oceans. 
4.7.3.1  Less favourable treatment – Detrimental impact on Mexican tuna products 
On appeal, the United States claimed that the Panel erred in its analysis and findings concerning 
whether the certification and tracking and verification requirements under the amended tuna measure modify the conditions of competition to the detriment of Mexican tuna products in the 
US market. The United States argued, first, that by grounding its findings on the difference in 
costs and burdens imposed on tuna products originating inside and outside the ETP large purse-seine fishery, the Panel improperly made the case for Mexico. This is because Mexico had not presented arguments and evidence concerning such costs and burdens in its written 
submissions, but had instead asserted that the diff erent certification and tracking and verification 
requirements would lead to greater inaccuracies in the dolphin-safe label for tuna products derived from tuna caught outside the ETP large purse-seine fishery. Second, according to the 
United States, the Panel failed to explain how any difference in costs and burdens flowing from the 
certification and tracking and verification requirements modifies the conditions of competition to the detriment of Mexican tuna products in the light of the relevant features of the US market. 
Third, the United States submitted that the Panel did not properly establish a genuine relationship 
between, on the one hand, the certification and trac king and verification requirements and, on the 
other hand, any detrimental impact on the competitive opportunities for Mexican tuna products. In the United States' opinion, any detriment to Mexican tuna products is attributable to Mexico's 
own fishing practices and international obligations under the AIDCP rather than to the amended 
tuna measure. 
The Appellate Body began by noting that, in th e original proceedings, both the panel and the 
Appellate Body had assessed the detrimental impact  of the original tuna measure by focusing on 
that measure's effect on relative access to the dolphin-safe label for Mexican, US, and other tuna 
products. In the original proceedings, the Appe llate Body had concluded that the regulatory 
distinction between tuna products derived from tuna caught by setting on dolphins and tuna 
products derived from tuna caught by other fishing methods had a detrimental impact on Mexican tuna products, because this distinction excluded most Mexican products from access to the dolphin-safe label, while allowing most like products of US and other origins to access the label.  
The Appellate Body noted that the findings made in the original proceedings took account of the 
operation of all the labelling conditions under the original tuna measure considered together. The Appellate Body further considered that those orig inal findings of detrimental impact constituted 
relevant background informing the assessment of  the detrimental impact of the amended tuna 
measure. The Appellate Body observed, however, that, in its detrimental impact analysis, the Panel did not take into account the interrelationship between the different labelling conditions WT/AB/26 
 
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  under the amended tuna measure, but rather conducted segmented analyses for each of the 
"eligibility criteria", the "certification requ irements", and the "tracking and verification 
requirements". After having conducted these thr ee segmented analyses, the Panel did not seek to 
synthesize them, or to examine more holistically the implications that the combined operation of 
the different sets of requirements might have had for its analysis of the detrimental impact of the 
amended tuna measure. The Appellate Body held th at, by carrying out isolated assessments of the 
detrimental impact associated with discrete sets  of requirements under that measure, the Panel 
failed to ascertain the manner in which the different labelling conditions operate together and 
affect the conditions of competition for Mexican tuna products in the US market. 
Moreover, the Appellate Body considered that the Panel's analysis, being conducted in the context 
of Article 21.5 proceedings, should have also en compassed consideration of whether the different 
labelling conditions under the amended tuna measure operate in a way that produces the same, or 
that modifies, the detrimental impact that was found to exist in the original proceedings. For instance, the Panel could have examined the extent to which the certification and tracking and 
verification requirements introduced by the 2013 Final Rule for tuna products originating outside 
the ETP large purse-seine fishery had the effect of reducing (or increasing) access to the dolphin-safe label for such tuna products, thereby narrowing (or broadening) the detrimental 
impact of the regulatory differences in treatment of Mexican tuna products as compared to  like 
products of US or other origin in terms of access to the dolphin-safe label. The Appellate Body noted, however, that the Panel did not conduc t such an examination, despite the parties' 
arguments that the detrimental impact of th e amended tuna measure remains substantially 
unchanged from that of the original tuna measure. 
Turning to the specifics of the Panel's discrete an alyses of detrimental impact based on the costs 
and burdens associated with the certification and tracking and verification requirements, the 
Appellate Body noted the Panel's statement that such requirements are relevant only to tuna 
eligible to receive the dolphin-safe label, i.e. only  to tuna not caught by setting on dolphins. Thus, 
the Appellate Body understood the Panel to ha ve compared the costs and burdens that the 
different certification and tracking and verification requirements entail for, on the one hand, 
Mexican tuna products derived from tuna caught other than by setting on dolphins, and, on the 
other hand, tuna products of US or other origin de rived from tuna caught other than by setting on 
dolphins. In other words, even though the Panel had found all tuna products to be "like" for the 
purposes of this dispute, its analyses of the detrimental impact of the certification and tracking and 
verification requirements focused on a subset  of the relevant like products – namely, tuna 
products eligible for the dolphin-safe label.  
The Appellate Body referred to its previous jurisprudence indicating that once the relevant "like" 
products have been identified, Article 2.1 of the TBT Agreement requires a panel to compare, on the one hand, the treatment accorded under the me asure at issue to the group of like products 
imported from the complaining Member with, on the other hand, that accorded to the group of like 
domestic products and/or the group of like products originating in all other countries. The Appellate Body expressed the view that, in do ing so, a panel should not artificially limit its 
analysis to only subsets of the relevant groups of like products in a manner that risks skewing the 
proper comparison for purposes of determining de trimental impact. In the light of the above, the 
Appellate Body considered that the Panel was ca lled upon to compare the treatment that the 
amended tuna measure accords to the group  of Mexican tuna products with the treatment 
accorded to the groups  of like products from the United States and other countries. 
The Appellate Body added that, in order to reach its conclusions, the Panel was not required to find 
that the certification and tracking and verification requirements impose additional costs and 
burdens on every  Mexican tuna product as compared to every  like product from the United States 
and other countries. However, it noted the Panel's acknowledgment that, under the amended tuna measure, most Mexican tuna products are still excluded from access to the dolphin-safe label because they are derived from tuna caught by setting on dolphins. To the Appellate Body, this 
finding suggests that very few, if any, Mexican tuna products are eligible for the dolphin-safe label 
and thus subject to any additional costs and burdens flowing from the certification and tracking and verification requirements. In the Appellate Body's view, the Panel's analysis of the treatment 
that such requirements accord to this category of  tuna products did not have sufficient explanatory 
force to support a finding that the group  of Mexican tuna products is detrimentally affected by the 
certification and tracking and verification requirem ents. Accordingly, the Appellate Body found that 
the Panel artificially skewed the proper compar ison for purposes of determining detrimental WT/AB/26 
 
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  impact, rather than grounding its analysis on a full comparison of the relevant groups of like 
products in the light of the particular facts and circumstances of this dispute. 
Based on the foregoing, the Appellate Body concluded that the Panel erred in its analysis of 
whether the amended tuna measure modifies the conditions of competition of Mexican tuna 
products in the US market within the meaning of Article 2.1 of the TBT Agreement. Having so 
found, the Appellate Body did not consider it necessary to rule on the claims of error raised on appeal by the United States regarding the Pane l's analysis of the detrimental impact of the 
certification and tracking and verification requirements. 
4.7.3.2  Less favourable treatment – Stemming  exclusively from a legitimate regulatory 
distinction 
The United States challenged the Panel's articula tion of the legal test under Article 2.1 of the 
TBT Agreement for determining whether the detrimental impact on imported products stems 
exclusively from a legitimate regulatory distinction. In addition, the United States and Mexico each raised certain claims of error under this second step of the analysis of less favourable treatment in 
connection with the Panel's application of the law to the facts. 
4.7.3.2.1  The legal standard for determin ing whether the detrimental impact stems 
exclusively from a legitimate regulatory distinction 
The United States argued that the Panel articulated an incorrect legal standard for determining 
whether the detrimental impact on imported products stems exclusively from a legitimate regulatory distinction. In particular, the United States contended that the Panel wrongly indicated that the question in the second step of the anal ysis of less favourable treatment under Article 2.1 
is whether detrimental treatment is explained by, or at least reconcilable with, the objectives 
pursed by the measure at issue. 
The Appellate Body indicated that the context prov ided by Annex 1.1, Article 2.2, and the second, 
fifth, and sixth recitals of the preamble of the TBT Agreement informs the interpretation of the 
second step of the "less favourable treatment" analysis under Article 2.1. In particular, the sixth recital makes clear that technical regulations may pursue legitimate objectives, but must not be 
applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination. 
Since this language has important parallels with the chapeau of Article XX of the GATT 1994, the 
Appellate Body expressed the view that the juri sprudence under the chapeau of Article XX is 
relevant to understanding the content of the second step of the "less favourable treatment" 
standard under Article 2.1. Notwithstanding these important parallels, the Appellate Body 
cautioned that there are also significant differences between the analyses under Article 2.1 and the chapeau of Article XX of the GATT 1994, as the legal standards applicable under the two provisions 
differ. In the Appellate Body's view, the Panel pr operly recognized both these similarities and 
differences. 
As regards the specific insight that the Panel drew from the jurisprudence under the chapeau of 
Article XX, the Appellate Body recalled that one of  the most important factors in the assessment of 
arbitrary or unjustifiable discrimination is the question of whether the discrimination can be reconciled with, or is rationally related to, the policy objective with respect to which the measure has been provisionally justified under one of the subparagraphs of Article XX. Given, in particular, 
the reference in the sixth recital of the prea mble of the TBT Agreement to "arbitrary and 
unjustifiable discrimination", the Appellate Body did not consider the Panel's adoption of this test as part of its "less favourable trea tment" analysis to be problematic. 
At the same time, the Appellate Body emphasized that, depending on the nature of the measure at 
issue and the circumstances of the case at hand, additional factors – beyond the question of whether the discrimination can be reconciled with the policy objective – could also be relevant to 
the analysis of whether the discrimination is arbitrary or unjustifiable. In this connection, the 
Appellate Body also indicated that an examination of whether a measure is designed or applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination is not the only way 
to assess whether a measure lacks even-handedness.  Therefore, the Appellate Body stated that a 
panel does not err by assessing whether the detrimental impact can be reconciled with, or is 
rationally related to, the policy pursued by the meas ure at issue, so long as, in doing so, it does WT/AB/26 
 
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  not preclude consideration of other factors that may also be relevant to the analysis. In the 
present case, the Appellate Body did not see that the Panel's articulation  of the legal standard 
precluded such consideration. 
On the basis of the foregoing discussion, the Appell ate Body found that the United States had not 
established that the Panel erred in recognizing the relevance of the concept of "arbitrary or 
unjustifiable discrimination" in the chapeau of Article XX of the GATT 1994, or in identifying an examination of whether the detrimental treatment can be reconciled with, or is rationally related 
to, the measure's objectives as potentially useful fo r purposes of the second step of the analysis of 
"treatment no less favourable" under Article 2.1 of the TBT Agreement. 
4.7.3.2.2  Whether the detrimental impact of the amended tuna measure on Mexican 
tuna products stems exclusively from a legitimate regulatory distinction 
The Appellate Body made certain preliminary observ ations regarding the analytical approach taken 
by the Panel in its assessment of whether the detr imental impact of the amended tuna measure on 
Mexican tuna products stems exclusively from a legitimate regulatory distinction. 
The Appellate Body recalled that the Panel separa tely considered the consistency with Article 2.1 
of the TBT Agreement of: (i) the eligibility criteria ; (ii) the certification requirements; and (iii) the 
tracking and verification requirements. The Appellate Body observed that the amended tuna 
measure comprises various elements that work together towards the objectives pursued by the 
measure. The Appellate Body reiterated that  due cognizance must be accorded to the 
recommendations and rulings made by the DSB in the original proceedings. It also noted that, in their submissions to the Panel, both the United States and Mexico advanced arguments relating to 
the respective risks to dolphins associated with different methods of fishing inside and outside 
the ETP. 
4.7.3.2.2.1  The eligibility criteria 
Mexico asserted that the Panel erred in finding that the Appellate Body had already "settled" in the 
original dispute the issue of "even-handedness" concerning the granting of eligibility for the 
dolphin-safe label to tuna products containing tuna caught by fishing methods other than 
setting on dolphins. According to Mexico, the Appellate Body did not make the findings of 
even-handedness or consistency with Arti cle 2.1 that the Panel imputed to it. 
The Appellate Body observed that its main findings in the original proceedings reveal that it did not 
make the findings attributed to it by the Panel. In particular, the Appellate Body noted that, the 
Appellate Body report contains no statement that the United States is "entitled" to disqualify tuna 
caught by setting on dolphins from ever being labelled as dolphin-safe, much less that the eligibility criteria are "even-handed", and, accordingly, are not inconsistent with Article 2.1 of the 
TBT Agreement. In fact, in the original proceed ings the original tuna measure was found to lack 
even-handedness and, for that reason, to be inconsistent  with Article 2.1 of the TBT Agreement. 
The Appellate Body emphasized that "even-handed ness" is a relational concept that must be 
tested through a comparative analysis. In the Appellate Body's view, whether a regulatory 
distinction that involves a denial of access to the dolphin-safe label in respect of setting on dolphins is even-handed depends not only on how the risks associated with this method of fishing are addressed, but also on whether the risks associated with other fishing methods in other 
fisheries are addressed, commensurately with thei r respective risk profiles, in the labelling 
conditions that apply in respect of tuna caught in such other fisheries. The Appellate Body thus indicated that, by finding that th e even-handedness of disqualifyin g setting on dolphins had been 
"settled" in the original proceedings, the Panel precluded a proper relational and comparative 
analysis of the regulatory distinctions and the trea tment of both groups of products (i.e. those that 
are ineligible for access to the dolphin-safe label and those that are eligible for such access). 
For the foregoing reasons, the Appellate Body found that the Panel erred in finding that the 
Appellate Body "settled" the issue of the even-handedness of the eligibility criteria in the original proceedings. WT/AB/26 
 
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  4.7.3.2.2.2  The different certification an d tracking and verification requirements 
The United States argued that the Panel applied an incorrect legal standard in failing to consider 
whether the different sets of certification and tr acking and verification requirements are each 
"calibrated" to the risks to dolphins arising from different fishing methods in different areas of the 
ocean. For the United States, the central question for the Appellate Body in the original 
proceedings was whether the relevant regulatory distinction is even-handed in the manner in which it addressed the risks to dolphins arising from different fishing methods in different areas of 
the ocean. The United States added that the Panel erred in not similarly taking the 
Appellate Body's guidance on calibration into account. 
The Appellate Body began by recalling that, in the original proceedings, its analysis of whether the 
detrimental impact of the amended tuna measure stemmed exclusively from a legitimate 
regulatory distinction focused on the question of whether the original tuna measure was, as 
asserted by the United States, "calibrated" to the risks to dolphins arising from different fishing methods in different areas of the oceans. This qu estion was answered through an examination of 
the conditions of access to the dolphin-safe label for tuna products derived from tuna caught by 
setting on dolphins within the ETP large purse-seine fishery, on the one hand, with those applied to tuna products derived from tuna caught outside that fishery by fishing methods other than 
setting on dolphins, on the other hand. Accordingly, the Appellate Body stated that the Panel's 
inquiry in these Article 21.5 proceedings should have included an assessment of whether, under the amended tuna measure, the differences in labelling conditions for tuna products originating in the ETP large purse-seine fishery, on the one hand, and for tuna products originating in other 
fisheries, on the other hand, are "calibrated" to the risks to dolphins arising from tuna fishing 
operations in different fisheries. In the Appellate  Body's view, the Panel did not expressly conduct 
such an assessment. 
Having reached this preliminary conclusion, the Appellate Body then turned to examine more 
specifically the inquiry that the Panel did undertake. In the Appellate Body's view, the manner in which the Panel applied its legal test to ascert ain the even-handedness of the certification and 
tracking and verification requirements presented certain difficulties. The first and most important 
of these arose from the segmented analysis adop ted by the Panel. Since the certification and 
tracking and verification requirements work together with the substantive conditions of the amended tuna measure to limit access to the dolphin-safe label, it is only when the conditions of 
access are viewed together that the nexus betw een the regulatory distinctions found in the 
measure and the measure's policy objectives can be understood. The Appellate Body therefore considered that the Panel's decision to adopt a segmented analytical appr oach prevented it from 
properly applying the legal standard that it had articulated. 
The Appellate Body then turned to consider whether, albeit not expressly assessing the 
"calibration" of the amended tuna measure, the Panel's analyses of the even-handedness of the 
respective sets of certification and tracking and verification requirements in fact took due account 
of the different risks to dolphins associated  with tuna fishing in different fisheries. 
In its analysis of the eligibility criteria, the Panel found that there is a difference in the nature of 
the risks posed to dolphins by the fishing method of setting on dolphins, as opposed to other 
fishing methods. The Appellate Body observed that, in reaching this finding, the Panel appeared to 
have focused solely on its understanding that the unobserved  harms differed as between setting 
on dolphins and other fishing methods. As a result, the Panel did not consider the relative risks 
posed by the different fishing methods in different areas of the oceans in respect of observed  
mortality or serious injury, and therefore did not re solve the questions of the overall levels of risk 
in the different fisheries and how they compare to each other. 
The Appellate Body noted that, in examining the different certification requirements, the Panel 
focused on a comparison of the different task s carried out by observers in the ETP large 
purse-seine fishery and by captains in other fisheries, as well as their respective expertise, training, and education for purposes of providing certifications. Conversely, the Panel's analysis did 
not encompass a clear identification of the respective risks arising to dolphins inside and outside 
the ETP large purse-seine fishery, or an assessment of whether such relative risks were tackled in an even-handed manner by the different certification requirements. WT/AB/26 
 
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  Next, the Appellate Body observed that, in analysing the even-handedness of the tracking and 
verification requirements, the Panel dismissed the Un ited States' argument that differences in such 
requirements are justified or explained in the light of the higher degree of risk to dolphins in the 
ETP large purse-seine fishery. The Panel opined that any higher risk does not explain why the 
tracking and verification requirements, which by their very nature concern the movement of fish 
subsequent to the time of catch , differ between fisheries to the detriment of like Mexican tuna 
products. The Appellate Body was not convinced that considerations of the similarities and 
differences in risks may not be reflected in and relevant to all stages of the capture and 
subsequent transport and processing of tuna. For the Appellate Body, it was clear that the Panel did not seek to identify the risks in respect of eligible tuna caught both inside and outside the 
ETP large purse-seine fishery in this part of its analysis. Nor did the Panel compare the different 
tracking and verification requirements in the li ght of those risks and the amended tuna measure's 
objectives concerning the protection of dolphins and providing accurate consumer information. 
In sum, the Appellate Body considered that the Panel's analysis failed to encompass consideration 
of the relative risks to dolphins in different fisheries, and of whether the distinctions that the 
amended tuna measure draws in terms of the differ ent conditions of access to the dolphin-safe 
label are explained in the light of the those risks. Accordingly, the Appellate Body found that, in 
assessing Mexico's claim that the certification requirements and the tracking and verification 
requirements are not "even-handed", the Panel erred in its application of the second step of the "treatment no less favourable" test under Article 2.1 of the TBT Agreement. 
The United States raised two challenges to the Panel's findings regarding the "determination 
provisions". First, the United States claimed that, in finding that the determination provisions lack 
even-handedness, the Panel erred by improperly making the case for Mexico. Second, the United States contended that the Panel erred in making its findings on the determination 
provisions based solely on their design, and not on their application. 
The Appellate Body began by indicating that, like the Panel, it saw the determination provisions as 
an integral part of the certification system put in place by the amended tuna measure. As such, 
they are relevant to the analysis of whether the United States brought its dolphin-safe labelling 
regime into conformity with the recommendations and rulings of the DSB. For the Appellate Body, 
the United States could not have been unaware of the legal issues relating to the role of the determination provisions during the present Article 21.5 proceedings. In particular, the original 
panel and Appellate Body reports contain several references to such provisions and their content. 
In the present compliance proceedings, the determination provisions are within the terms of reference of the Panel since they were identified by Mexico in its request for the establishment of a 
panel. The Appellate Body further observed that, in its first written submission, Mexico identified 
the determination provisions in its arguments concerning the lack of even-handedness of the certification requirements and highlighted key featur es relating to the design of the determination 
provisions in responses to the Panel's questions and in its comments on the United States' 
responses to the Panel's questions. In addition, the Appellate Body noted that the United States 
had an opportunity to counter Mexico's allegations and to put forward its own arguments on the design of such provisions. However, the United States chose not to do so, instead simply 
maintaining that Mexico had made no prima facie  c a s e  w i t h  r e g a r d  t o  t h e  d e t e r m i n a t i o n  
provisions. 
Based on its review of the Panel record, viewed against the backdrop of the original proceedings, 
the Appellate Body found that the United States fa iled to establish that the Panel improperly made 
the case for Mexico by finding that, by virtue of the determination provisions, the detrimental 
impact of the amended tuna measure does not st em exclusively from a legitimate regulatory 
distinction. 
Concerning the United States' second claim, the Appellate Body recalled its prior jurisprudence 
that the relevant inquiry under the second step of  Article 2.1 probes the legitimacy of regulatory 
distinctions through careful scrutiny of whether they are designed and applied  in an even-handed 
manner. The Appellate Body explained, however, that this does not preclude that, depending on 
the relevant circumstances of a particular case, it may be appropriate for a panel's examination of the measure at issue to focus on its design, rather than also examining its application. 
In criticizing the Panel for not examining how the determination provisions are applied , the 
United States appeared to be taking issue with the fact that the Panel never assessed whether the WT/AB/26 
 
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  evidence on the record  established that there is currently regular and significant association or 
regular and significant mortality or serious injury in any fishery other than the ETP large purse-seine fishery. However, in the Appellate Bo dy's view, the Panel was rather focusing on the 
content, structure, and expected operation of the measure at issue with a view to delineating the 
scope of application of each of the relevant determinations that can be made by the 
NMFS Administrator under the amended tuna measur e and that, when made, trigger an additional 
requirement to provide observer certification for tuna caught in the specific fishery concerned. 
On this basis, the Appellate Body found that the United States had not established that the Panel 
erred in its assessment of whether the determinat ion provisions are even-handed under Article 2.1 
of the TBT Agreement. 
4.7.3.2.3  Article 11 of the DSU 
Mexico raised several claims that the Panel acted inconsistently with Article 11 of the DSU in its 
analysis of the eligibility criteria and both participants raised Article 11 claims regarding the Panel's analysis of the certification requirements. 
With respect to the Panel's analysis of the eligibility criteria, Mexico claimed, first, that the Panel 
erred in "changing" the factual findings regarding setting on dolphins from the original proceedings. The Appellate Body did not agree with Mexico that the Panel's findings regarding the 
unobserved harms to dolphins due to setting on dolphins are somehow "stronger" than in the 
original proceedings, or that the Panel breached Article 11 of the DSU in reaching them. Mexico submitted that the Panel erred in finding that fishing methods other than setting on dolphins have no unobservable adverse effects. The Appellate Body noted that this was not an accurate 
characterization of the findings made by the Pa nel. Accordingly, the Appellate Body considered 
that Mexico had not properly substantiated its cl aim under Article 11 of the DSU, nor established 
that the Panel found that fishing methods other than setting on dolphins have no unobservable 
adverse effects. Third, Mexico asked the Appellate Body to reverse the Panel's finding that the 
Appellate Body made a factual finding that dolphin sets under the rules of the AIDCP are more harmful to dolphins than other fishing methods. The Appellate Body was not persuaded that the 
Panel had made such a finding, and considered that  Mexico's arguments in support of this claim of 
error were not sufficiently substantiated to establish a breach of Article 11 of the DSU. 
With respect to the Panel's analysis of the certif ication requirements, the United States contended 
that the Panel acted inconsistently with Article 11 of the DSU by arriving at a finding that is 
unsupported by the evidence on the record. In th e United States' view, there was no evidence on 
which to base a finding that there are two "gaps" in the determination provisions. The Appellate Body recalled that it had examined and rejected th is argument in the context of the United States' 
challenge to the Panel's application of Article 2.1 to the determination provisions. Consequently, 
the Appellate Body found that the Panel had not acted inconsistently with its duties under Article 11. 
The Appellate Body then turned to Mexico's claims under Article 11. In its first claim, Mexico 
asserted that the Panel erred in rejecting Mexico's arguments and evidence that fishing vessel captains have an economic self-interest in not reporting that dolphins were killed or seriously injured. The Appellate Body highlighted that Mexico did not single out any particular exhibit that 
the Panel misinterpreted or failed to take into consideration. Nor did Mexico point to any specific 
mistakes regarding the Panel's objectivity in its assessment of the evidence. Consequently, the Appellate Body considered that Mexico had not established that the Panel acted inconsistently with 
Article 11 of the DSU. Mexico's second claim under Article 11 of the DSU was that the Panel failed 
to address the evidence contained in Exhibit ME X-161, which, in Mexico's view, indicates that 
dolphins associate with tuna and are intentionall y set upon in the Indian Ocean. While the Panel 
did not expressly discuss Exhibit MEX-161 in the section of the Panel Report addressing the 
certification requirements, the Appellate Body highlighted that the content of this exhibit is entirely compatible with the Panel's findings, which acknowledged the existence of association between tuna and dolphins in the Indian Ocean. 
For the above reasons, the Appellate Body found th at neither participant had established that the 
Panel acted inconsistently with its duty to conduct an objective assessment of the matter pursuant 
to Article 11 of the DSU. WT/AB/26 
 
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  4.7.3.2.4  Overall conclusions under  Article 2.1 of the TBT Agreement 
The Appellate Body found that, taken together, the e rrors that it had identified in the two steps of 
the Panel's analysis of "treatment no less favourable" under Article 2.1 of the TBT Agreement constituted error in the application of that prov ision to the amended tuna measure. Accordingly, 
the Appellate Body reversed the Panel's discrete findings, in paragraph 8.2 of the Panel Report, 
that: 
a. the eligibility criteria in the amended tuna measure do not accord less favourable 
treatment to Mexican tuna products than that accorded to like products from the 
United States and to like products originating in any other country, and are thus consistent with Article 2.1 of the TBT Agreement;  
b. the different certification requirements in the amended tuna measure accord less 
favourable treatment to Mexican tuna products than that accorded to like products from 
the United States and to like products originating in any other country, in violation of Article 2.1 of the TBT Agreement; and  
c. the different tracking and verification requirements in the amended tuna measure accord 
less favourable treatment to Mexican tuna products than that accorded to like products from the United States and to like products originating in any other country, in violation 
of Article 2.1 of the TBT Agreement. 
4.7.3.3  Completion of the legal analysis The Appellate Body then turned to consider whether it could complete the legal analysis and rule 
on whether the amended tuna measure had brought the United States into compliance with the 
DSB's recommendations and rulings in the original proceedings.  
The Appellate Body began by examining whether th e labelling conditions under the amended tuna 
measure, taken together, modify the conditions of competition to the detriment of Mexican tuna 
products in the US market. The Appellate Body highlighted that, as the original panel found and as 
both participants acknowledged in these compliance proceedings, access to the dolphin-safe label constitutes an "advantage" on the US market for tuna  products by virtue of that label's "significant 
commercial value". The Appellate Body further recalled that, in the original proceedings, the 
Appellate Body relied on the following factual findings by the original panel: (i) the Mexican tuna cannery industry is vertically integrated, and the major Mexican tuna products producers and canneries own their vessels, which operate in the ETP; (ii) at least two thirds of Mexico's 
purse-seine tuna fleet fishes in the ETP by setting on dolphins and is therefore fishing for tuna that 
would not be eligible to be contained in a "dolphin-safe" tuna product under the US dolphin-safe labelling provisions"; (iii) the US fleet currently does not practice setting on dolphins in the ETP; 
and (iv) as the practices of the US and Mexican tuna fleets currently stand, most tuna caught by 
Mexican vessels, being caught in the ETP by setting on dolphins, would not be eligible for inclusion in a dolphin-safe product under the US dolphin-safe labelling provisions, while most tuna caught 
by US vessels is potentially eligible for the label. The Panel did not make any factual findings that 
go against those original findings, and, at the oral hearing in the present appellate proceedings, both Mexico and the United States confirmed that the relevant factual situation had not changed since the original proceedings. 
Since the amended tuna measure maintains the over all architecture and structure of the original 
tuna measure – in particular, in terms of the regulatory distinction between tuna products derived from tuna caught by setting on dolphins and tuna products derived from tuna caught by other 
fishing methods – and given the participants' agreement that the relevant factual situation has not 
changed from the original proceedings, the Appella te Body found that, by excluding most Mexican 
tuna products from access to the dolphin-safe label, while granting conditional access to such label 
to like products from the United States and other countries, the amended tuna measure, similar to 
the original measure, modifies the conditions of competition to the detriment of Mexican tuna products in the US market. 
Having made this finding, the Appellate Body turn ed to address whether the detrimental impact on 
Mexican tuna products stems exclusively from a legitimate regulatory distinction. In particular, the WT/AB/26 
 
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  Appellate Body indicated that, in order to assess whether the amended tuna measure is 
adequately calibrated to the relative adverse effects on dolphins arising outside the ETP large purse-seine fishery as compared to those inside th at fishery, it should examine whether there are 
relevant factual findings by the Panel or undisputed evidence on the record regarding the different 
risk profiles in thes e different fisheries. 
The Appellate Body observed that the Panel had be fore it considerable evidence concerning the 
nature and scope of the relative risks associated with different fishing practices in different areas 
of the oceans. The Appellate Body, however, did not see that the Panel in these proceedings set 
out to examine the extent of mortality or serious injury arising from fishing methods in different 
areas of the oceans, so as to enable itself to gauge properly the overall relative risks or levels of harm to dolphins arising in those fisheries. In the absence of such an assessment, the Panel 
limited its ability to determine whether the discriminatory aspects of the amended tuna measure 
can be explained as being properly tailored to, or commensurate with, the differences in such risks in the light of the objective of protecting dolphins from adverse effects arisin g in different fisheries. 
For similar reasons, the Panel's limited analysis in respect of the relative risk profiles in turn 
constrained the Appellate Body's ability to complete the legal analysis in this regard. 
However, the Appellate Body indicated that there are other features of the amended tuna measure 
that are not dependent on an assessment of the relative risks associated with different fishing 
methods in different areas of the oceans. The Ap pellate Body referred, in particular, to the 
"determination provisions", whereby the NMFS Assistant Administrator may require observer certification for specific fisheries upon masking certain determinations. In particular, observer 
certification is required if the Administrator dete rmines: (i) within the non-ETP purse-seine fishery, 
that there is regular and significant tuna-dolphin association, similar to the tuna-dolphin association in the ETP; or (ii) within "all other fisheries", that there is a regular and significant 
mortality or serious injury of dolphins. Th e Appellate Body noted that, by design, the 
determination provisions apply to all fisheries other than the ETP large purse-seine fishery where the risk of harm to dolphins approximates that ex isting in the ETP large purse-seine fishery. Like 
the Panel, however, the Appellate Body observed that the determination provisions do not address 
all scenarios in which there may be heightened risks of harm to dolphins associated with particular 
fishing methods in fisheries other than the ETP large purse-seine fishery.
30 In other words, the 
determination provisions do not provide for the substantive conditions of access to the 
dolphin-safe label to be reinforced by observer certification in all circumstances of comparably 
high risks. 
Because of the above findings concerning the determination provisions, the Appellate Body 
considered that it had not been demonstrated that the differences in the dolphin-safe labelling 
conditions under the amended tuna measure are calibrated to, or commensurate with, the risks to dolphins arising from different fishing methods in different areas of the oceans. Since it therefore 
followed that the detrimental impact of the amen ded tuna measure does not stem exclusively from 
a legitimate regulatory distinction, the Appellate Body found that the amended tuna measure is inconsistent with Article 2.1 of the TBT Agreement. 
4.7.4  Articles I:1 and III:4 of the GATT 1994 
The United States claimed on appeal that, for the same reasons as those expressed with respect to 
the Panel's detrimental impact analysis under Article 2.1 of the TBT Agreement, the Panel erred in finding that the certification and tracking and verification requirements under the amended tuna 
measure: (i) provide an "advantage, favour, privilege, or immunity" to tuna products from other 
Members that is not "accorded immediately and unconditionally" to like products from Mexico, in a 
                                               
30 For example, the determination provision applicable to the non- ETP purse-seine fishery does not 
provide for a determination of "regular and significant mortality or serious injury" to be made. The Appellate Body thus expressed conc ern that this determination provis ion does not allow for comparable 
regulation of a risk scenario where there is regular an d significant mortality or serious injury in respect of 
practices other than setting on dolphi ns by purse-seine vessels inside as compared to outside the ETP. The 
Appellate Body also highlighted concerns in respect of the determination provision applicable to "all other fisheries". The Appellate Body indicated that it would expect that any determination outside the ETP large purse-seine fishery would entail not only the heightened  certification requirements, but also tracking and 
verification requirements  that work together with and reinforce certif ication in addressing this heightened risk. WT/AB/26 
 
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  manner inconsistent with Article I:1; and (ii) accord "less favourable treatment" to Mexican tuna 
products than that accorded to like domestic prod ucts, in a manner inconsistent with Article III:4. 
The Appellate Body noted that, similar to its analysis of detrimental impact under Article 2.1 of the 
TBT Agreement, the Panel carried out three discrete assessments of consistency with Articles I:1 
and III:4 of the GATT 1994 for each of the "eligibili ty criteria", the "certification requirements", 
and the "tracking and verification requirements". Wi th respect to the eligibility criteria, the Panel 
assessed the extent to which the disqualification of tuna products derived from tuna caught by 
setting on dolphins affects the relative competit ive conditions of Mexican, US, and other tuna 
products in the US market. As to the certification and tracking and verification requirements, the Panel focused its examination on the different costs and burdens that such requirements impose on tuna products derived from tuna caught inside and outside the ETP large purse-seine fishery. In 
conducting these analyses, the Panel expressly referred to its legal and factual findings of 
detrimental impact made in the context of Article 2.1 of the TBT Agreement. 
The Appellate Body stated that Article 2.1 of th e TBT Agreement and Articles I:1 and III:4 of the 
GATT 1994 differ in their textual formulations and in the legal standards they embody. Yet, it 
agreed with the Panel that the relevant inquiry under all those provisions hinges on the question of whether the measure at issue modifies the conditions of competition in the responding Member's 
market to the detriment of products imported from the complaining Member vis-à-vis like domestic 
products or like products imported from any other country. Accordingly, the Appellate Body considered that the Panel's reliance, in its anal yses under Articles I:1 and III:4 of the GATT 1994, 
on its reasoning and on certain findings that it had made in analysing detrimental impact under 
Article 2.1 of the TBT Agreement was not, in itself, inappropriate.  
However, the Appellate Body took the view that th e concerns it had identified with respect to the 
Panel's analysis of detrimental impact under Arti cle 2.1 of the TBT Agreement applied with equal 
force to the Panel's analysis under Articles I:1 and III:4 of the GATT 1994. First, by conducting 
segmented analyses of each of the three sets of  requirements under the amended tuna measure, 
the Panel failed to take account of the interlinkages between such requirements and to conduct a 
holistic assessment of how those various labelling conditions adversely affect the conditions of 
competition for Mexican tuna products in the US market. Because it adopted such a segmented approach, the Panel failed to assess meaningfully the extent to which the detrimental impact that was found to exist in the original proceedings might have been altered by the new requirements 
introduced by the amended tuna measure. Second, in analysing the consistency with Articles I:1 
and III:4 of the certification and tracking and verification requirements, the Panel engaged in a comparison of the treatment accorded to subsets of the relevant groups of like products, instead of 
comparing the treatment accorded to the group of Mexican tuna products with that accorded to 
the groups of like products of US or other origin, without identifying a proper basis for doing so. 
Thus, the Appellate Body concluded that the Panel erred in its analysis of the consistency of the 
amended tuna measure with Articles I:1 and III:4 of the GATT 1994, and reversed the Panel's 
findings that the eligibility criteria, the different certification requirements, and the different tracking and verification requirements are each inconsistent with Articles I:1 and III:4 of the GATT 1994. Having done so, the Appellate Body did not consider it necessary to address the other 
claims of error on appeal raised by the United States'. 
4.7.5  The chapeau of Article XX of the GATT 1994 Mexico and the United States each appealed certain aspects of the Panel's analysis under the 
chapeau of Article XX of the GATT 1994. With re spect to the Panel's assessment of whether the 
eligibility criteria entail discrimination between countries where the same conditions prevail, Mexico appealed the Panel's finding that the conditions prevailing in fisheries where tuna is caught 
by setting on dolphins and in fisheries where that method is not used are not the same. In 
Mexico's view, the Panel's finding was in error because there are observable and unobservable mortalities and injuries in tuna fisheries other than the ETP large purse-seine fishery, and the relevant conditions are therefore the same. The United States, for its part, submitted that the 
Panel erred in finding that the conditions prevai ling inside and outside the ETP large purse-seine 
fishery are the same for purposes of the certific ation and tracking and verification requirements. 
According to the United States, the relevant condition in this dispute is the relative harm 
(both observed and unobserved) suffered by dolphins in different fisheries, and the findings in the WT/AB/26 
 
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  original proceedings affirmed that this condition is not the same in the ETP large purse-seine 
fishery as compared to other fisheries. 
The Appellate Body noted that, in its analysis of the eligibility criteria under the chapeau of 
Article XX, the Panel found that the relevant condition was the harms to dolphins arising from the 
unobservable effects of fishing methods. Specifically, highlighting the harms that dolphins suffer as 
a result of being chased and encircled with nets – even when this does not result in death or serious injury – the Panel expressed the view that the conditions prevailing in fisheries where tuna 
is caught by setting on dolphins and fisheries where that method is not used are not the same. By 
contrast, in its analysis of the certification requirements, the Panel considered that the relevant condition was the harms to dolphins arising from death or serious injury. The Panel opined that, for the purposes of this element of the measure,  the conditions prevailing among Members are the 
same, because dolphins may be killed or seriously injured by all fishing methods in all oceans, and 
accordingly accurate certification is necessary regardless of the particular fishery in which tuna is caught. The Panel did not make any statement regarding conditions prevailing between countries 
in its analysis of the tracking and verification requirements. 
The Appellate Body recalled that the chapeau of Ar ticle XX requires that the measure at issue not 
be applied in a manner that constitutes arbitrary or unjustifiable discrimination between countries 
where the same conditions prevail. Accordingly,  the Appellate Body expressed concern with the 
Panel's findings that different sets of conditions  are relevant for different aspects of the amended 
tuna measure, and with the Panel's ultimate conclusion that the relevant conditions are not the same for some aspects, but are the same for others. For the Appellate Body, the Panel's approach 
was a consequence of its segmented analysis, which led it to isolate its consideration of different 
elements of the measure without examining the ma nner in which those elements are interrelated, 
and without reconciling the different conclusi ons it drew in respect of these elements. 
The Appellate Body did not see a basis for the Panel to find that the conditions relevant for the 
certification or tracking and verification requirements would differ from those relevant for the eligibility criteria, given that access to the dolphin-safe label is conditioned on the satisfaction of all 
of the labelling conditions that are contained in the amended tuna measure.  
The participants further appealed certain aspects of the Panel's analysis of whether the 
discrimination entailed by the amended tuna measure between countries where the same 
conditions prevail is "arbitrary or unjustifiable". In respect of the Panel's examination of the 
eligibility criteria, Mexico claimed that the Panel erred by not focusing its assessment on the 
objectives of the measure rather than on the policy objective reflected in Article XX(g) of the GATT 1994. In Mexico's opinion, the Panel improperly grounded its analysis on the different type, 
nature, quality, magnitude, or regularity of the adverse effects resulting fr om the different fishing 
methods. According to Mexico, there is no basis to "calibrate" between different levels of dolphin mortalities or serious injuries in achieving the policy objective under Article XX(g). 
The United States, for its part, claimed that the Panel misunderstood the analysis of whether 
discrimination is "arbitrary or unjustifiable" to consist of a single-factor test focused on the connection between the discrimination and the object ives of the measure at issue, rather than a 
cumulative analysis of all factors that could be relevant such a determination. Further, according to 
the United States, the Panel erroneously relied entirely on its Article 2.1 analysis. Finally, the 
United States claimed that the Panel erred by fa iling to take account of the different risks to 
dolphins arising inside and outside the ETP large purse-seine fishery.  
The Appellate Body stated, based on past jurisprudence, that the analysis of whether 
discrimination is arbitrary or unjustifiable should focus on the cause of the discrimination or the rationale put forward to explain its existence, and that one of the most important factors in 
conducting such an analysis is the question of whether the discrimination can be reconciled with, 
or is rationally related to, the policy objective pursued by the measure at issue. Therefore, the 
Appellate Body disagreed with the United States  that the Panel had set out an overly narrow 
articulation of the relevant legal standard. It al so disagreed with Mexico that the Panel erred by 
focusing on whether there is a rational relation ship with the objectives of the amended tuna 
measure, rather than the objective reflected in Article XX(g). The Appellate Body highlighted that, 
by virtue of an examination of whether a measure is provisionally justified under one of the 
subparagraphs, the objective of the measure will already have been tested against one of the 
objectives set out in Article XX. Finally, the Appe llate Body took the view that it was appropriate 
for the Panel to rely on and refer to the legal standard it articulated under Article 2.1 of the 
TBT Agreement in the context of its reasoning und er the chapeau of Article XX of the GATT 1994. WT/AB/26 
 
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  The Appellate Body stressed that the Panel did not me rely import its findings under Article 2.1, but 
rather relied on a similar analytical process under the two provisions by focusing on the existence of arbitrary or unjustifiable discrimination, while also examining other dimensions of the chapeau analysis that were not developed in the context of its analysis under Article 2.1. 
The Appellate Body then turned to the Panel's application of the legal standard in this dispute. 
The Appellate Body noted that, in its examination of the eligibility criteria under the chapeau of Article XX, the Panel relied on what it understood to be the Appellate Body's settled conclusion that 
the United States is entitled to disqualify tuna products containing tuna caught by setting on 
dolphins from accessing the dolphin-safe label, while not disqualifying tuna caught by other fishing methods. The Appellate Body recalled its finding that the Panel misread the Appellate Body's findings in the original proceedings. Because of this misreading, the Panel failed to conduct a 
proper relational and comparative analysis of the treatment of the group of products that are 
ineligible for access to the dolphin-safe label, as compared to the group of products. This also prevented the Panel from engaging in the cent ral question in these compliance proceedings, 
namely, whether the changes introduced by the United States to the amended tuna measure bring 
this measure into compliance with the recommendations and rulings of the DSB.  
In respect of the Panel's analysis of the certification and tracking and verification requirements, 
the Appellate Body held that while one of the most important factors in the assessment of 
arbitrary or unjustifiable discrimination is the question of whether the discrimination can be reconciled with, or is rationally related to, the policy objective of the measure at issue, this factor may not be dispositive of the entire inquiry. Depe nding on the nature of the measure at issue and 
the circumstances of the case at hand, there could be additional factors that may also be relevant 
to the overall assessment. According to the Appella te Body, in the circumstances of this dispute, 
an additional relevant factor is the question of  whether the different requirements of the amended 
tuna measure can be justified or explained in the light of the likelihood that dolphins would be 
adversely affected in the course of tuna fish ing operations in the respective fisheries. 
The Appellate Body restated its view, summarized in paragraph 4.42 above, that the Panel did not 
sufficiently consider the relative risks of harm to dolphins in different fisheries, or whether the 
different conditions of access to the dolphin-safe label under the amended tuna measure are explained in the light of the relative risk profiles.  
Based on the foregoing, the Appellate Body found  that the Panel erred in its analyses of the 
eligibility criteria, the certification requirements, and the tracking and verification requirements 
under the chapeau of Article XX. The Appellate Body therefore reversed the Panel's finding that the eligibility criteria are applied consistently with the chapeau of Article XX of the GATT 1994, as well 
as the Panel's separate findings that the certification requirements and the tracking and 
verification requirements are each applied incons istently with the chapeau of Article XX of the 
GATT 1994. 
4.7.6  Completion of the legal analysis under the GATT 1994 
Having reversed the Panel's findings under Ar ticles I:1, III:4, and XX of the GATT 1994, the 
Appellate Body proceeded to complete the legal analysis under those provisions.  
Beginning with the consistency of the amended tuna measure with Articles I:1 and III:4, the 
Appellate Body held that the relevant question is whether that measure modifies the conditions of 
competition in the US market to the detriment of Mexican tuna products vis-à-vis US tuna products or tuna products imported from any other country. The Appellate Body recalled the 
finding in the original proceedings that, under the original tuna measure, most Mexican tuna 
products would not be eligible for inclusion in a dolphin-safe product under the US dolphin-safe labelling provisions, while most tuna products of US and other origins were potentially eligible for 
the label. The Appellate Body further noted the Panel's factual finding that the disqualification from 
the dolphin-safe label of tuna products containing tuna caught by setting on dolphins, which remains unchanged from the original tuna measure, still has the effect of denying most Mexican tuna products access to the label. The Appellate Body did not see any Panel findings or 
uncontested evidence on the record indicating that the positions of tuna products from the 
United States or other countries in terms of access to the dolphin-safe label have changed as a result of the certification and tracking and verification requirements introduced by the 
2013 Final Rule. It observed, moreover, that the participants agreed that the amended tuna WT/AB/26 
 
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  measure modifies the conditions of competition to the detriment of Mexican tuna products in a 
manner similar to the original tuna measure. 
Based on the foregoing, the Appellate Body found that, by excluding most Mexican tuna products 
from access to the dolphin-safe label, while granting conditional access to such label to like 
products from the United States and other countries, the amended tuna measure: (i) provides an 
"advantage, favour, privilege, or immunity" to tuna products from other countries that is not "accorded immediately and unconditionally" to like products from Mexico, in a manner inconsistent 
with Article I:1 of the GATT 1994; and (ii) accords "less favourable treatment" to Mexican tuna 
products than that accorded to like domestic products, in a manner inconsistent with Article III:4 of the GATT 1994. 
The Appellate Body then turned to assess whether the amended tuna measure is applied 
consistently with the chapeau of Article XX of the GATT 1994. The Appellate Body recalled that 
neither participant had appealed the Panel's finding that the features of the amended tuna measure that give rise to violations of Articles I and III "relate to" the goal of conserving dolphins 
and are, therefore, provisionally justified under Ar ticle XX(g). The Appellate Body also recalled its 
view that the relevant conditions prevailing between countries are the risks of adverse effects on dolphins arising from tuna fishing practices and that, in the circumstances of this dispute, these 
are the same for purposes of an analysis under the chapeau of Article XX of the GATT 1994. 
Turning to consider whether the discrimination under the amended tuna measure is "arbitrary or 
unjustifiable", the Appellate Body considered relevant the question of whether the various conditions for access to the dolphin-safe label can be justified or explained in the light of 
differences in risks to dolphins inside and outside the ETP large purse-seine fishery. The Appellate 
Body took the view that the new certification and tracking and verification requirements introduced by the 2013 Final Rule for tuna products derived from tuna caught outside the ETP large 
purse-seine fishery may be said to go in the direction of responding to the "calibration" of the 
dolphin-safe labelling conditions to different risk profiles of different fish ing methods in different 
areas of the ocean that the Appellate Body had found to be lacking in the original tuna measure. 
The Appellate Body added that, in order to asse ss whether the amended tuna measure results in 
arbitrary or unjustifiable discrimination due to the manner in which it addresses the relative adverse effects on dolphins inside and outside the ETP large purse-seine fishery, it would be important to examine the Panel's findings and und isputed evidence regarding the different risk 
profiles in those different fisheries. However, since the Panel had not conducted a proper 
assessment of the respective risks posed to dolphi ns inside and outside the ETP large purse-seine 
fishery, the Appellate Body found itself unable to complete the legal analysis and assess fully 
whether all of the regulatory distinctions drawn under the amended tuna measure can be 
explained and justified in the light of differences in the relative risks associated with different methods of fishing for tuna in different areas of the oceans.  
Nevertheless, the Appellate Body was able to complete the legal analysis with respect to certain 
features of the amended tuna measure that are no t dependent on an assessment of the relative 
risks associated with different fishing methods in different areas of the ocean. In particular, the Appellate Body considered that the determination provisions are designed in a manner that 
prevents the United States from reinforcing the substantive conditions of access to the 
dolphin-safe label by observer certification in certain scenarios in which there may be heightened risks of harm to dolphins associated with particular fisheries outside the ETP large purse-seine 
fishery and that this may also entail the application of tracking and verification requirements 
different from those applied inside the ETP large purse-seine fishery. Thus, the Appellate Body considered that these aspects of the design of th e amended tuna measure are difficult to reconcile 
with the objective of protecting dolphins from harm.  
For all these reasons, the Appellate Body found that it had not been demonstrated that the 
amended tuna measure is applied in a manner that does not constitute arbitrary or unjustifiable discrimination; and, thus, that the amended tuna measure is not justified under Article XX of the 
GATT 1994. WT/AB/26 
 
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  5  PARTICIPANTS AND THIRD PARTICIPANTS IN APPEALS 
Table 5 lists the WTO Members that participated in  appeals for which an Appellate Body report was 
circulated in 2015. It distinguishes between Members that filed a Notice of Appeal pursuant to Rule 20 of the Working Procedures  (appellants) and Members that filed a Notice of Other Appeal 
pursuant to Rule 23(1) (known as the "other appellants"). Rule 23(1) provides that "a party to the 
dispute other than the original appellant may join in that appeal, or appeal on the basis of other alleged errors in the issues of law covered in the Panel report and legal interpretations developed 
by the Panel". Under the Working Procedures, part ies wishing to appeal a panel report pursuant 
to Rule 23(1) are required to file a Notice of O t h e r  A p p e a l  w i t h i n  5  d a y s  o f  t h e  f i l i n g  o f  t h e  
Notice of Appeal. 
Table 5 also identifies those Members that participated in appeals as third participants under 
paragraphs (1), (2), or (4) of Rule 24 of the Working Procedures. Under Rule 24(1), 
a WTO Member that was a third party to the panel proceedings may file a written submission as a third participant within 21 days of the filing of the Notice of Appeal. Pursuant to Rule 24(2), 
a Member that was a third party to the panel proceedings and that does not file a written 
submission with the Appellate Body may, within 21 days of the filing of the Notice of Appeal, 
notify its intention to appear at the oral hearing and indicate whether it intends to make a 
statement at the hearing. Rule 24(4) provides that a Member that was a third party to the panel 
proceedings and neither files a written submission in accordance with Rule 24(1), nor gives notice in accordance with Rule 24(2), may notify its intention to appear at the oral hearing and request to make a statement. 
Table 5: Participants and third participants  in appeals for which an Appellate Body 
report was circulated in 2015 
Case Appellanta Other 
appellantb Appellee(s)c Third participants 
Rule 24(1)  Rule 24(2) Rule 24(4)  
Argentina – 
Measures 
Affecting the Importation of Goods (DS438, 
DS444, DS445)  Argentina European 
Union 
Japan Argentina 
European 
Union 
Japan 
United 
States Australia 
Chinese 
Taipei 
Saudi 
Arabia Canada 
China 
Ecuador 
Guatemala 
India 
Israel 
Korea 
Norway 
Thailand 
Turkey 
United 
States Switzerland 
United States – 
Certain Country of 
Origin Labelling 
(COOL) 
Requirements – 
Recourse to 
Article 21.5 of the 
DSU by Canada 
and Mexico  
(DS384, DS386) United 
States Canada 
Mexico Canada 
Mexico 
United 
States Australia 
Brazil 
China 
Colombia 
European 
Union 
Japan 
New 
Zealand Guatemala 
 India 
Korea 
United States – 
Anti-Dumping Measures on 
Certain Shrimp 
from Viet Nam (DS429)  Viet Nam - United 
States China 
European 
Union 
Japan Norway Ecuador 
Thailand WT/AB/26 
 
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  Case Appellanta Other 
appellantb Appellee(s)c Third participants 
Rule 24(1)  Rule 24(2) Rule 24(4)  
India – Measures 
Concerning the 
Importation of 
Certain 
Agricultural 
Products (DS430)  India - United 
States Argentina 
Australia 
Brazil 
European 
Union 
Japan Colombia 
Ecuador 
Guatemala China 
Viet Nam 
Peru – Additional 
Duty on Imports of Certain Agricultural Products (DS457)  Peru Guatemala Guatemala 
Peru Brazil 
Colombia 
European 
Union 
United 
States Argentina 
China 
El Salvador 
Honduras 
India Ecuador 
Korea 
China – Measures 
Imposing Anti-
Dumping Duties 
on High-
Performance 
Stainless Steel 
Seamless Tubes 
("HP-SSST") from 
Japan (DS454)  Japan China Japan 
China European 
Union 
United 
States India 
Korea 
Russia 
Saudi 
Arabia 
Turkey - 
China – Measures 
Imposing Anti-Dumping Duties 
on High-
Performance Stainless Steel Seamless Tubes ("HP-SSST") from 
the European 
Union (DS460)  China European 
Union China 
European 
Union Japan 
United 
States India 
Korea 
Russia 
Saudi 
Arabia 
Turkey - 
United States – 
Measures 
Concerning the 
Importation, 
Marketing and 
Sale Of Tuna and 
Tuna Products - 
Recourse to 
Article 21.5 of the 
DSU by Mexico 
(DS381)  United 
States Mexico Mexico 
United 
States Canada 
European 
Union 
Japan 
New 
Zealand Australia 
China 
Guatemala 
Korea 
Norway Thailand 
a Pursuant to Rule 20 of the Working Procedures. 
b Pursuant to Rule 23(1) of the Working Procedures. 
c Pursuant to Rule 22 or 23(3)  of the Working Procedures. 
 
A total of 27 WTO Members appeared at least once as appellant, other appellant, appellee, or third 
participant in appeals for which an Appellate Body report was circulated in 2015. WT/AB/26 
 
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  Chart 3 shows the ratio of developed country Members to developing country Members in terms of 
appearances made as appellant, other appellant, appellee, and third participant in appeals for which an Appellate Body report was circulated from 1996 through 2015. 
Chart 3: WTO Member participation in appeals 1996–2015 
 
 
Annex 9 provides a statistical summary and details on WTO Members' participation as appellant, 
other appellant, appellee, and third participant in appeals for which an Appellate Body report was 
circulated from 1996 through 2015. 
6  WORKING PROCEDURES FOR APPELLATE REVIEW. 
6.1  Guidelines regarding executive summari es of written submissions in appellate 
proceedings 
In March 2015, the Appellate Body published a communication on "Executive Summaries of 
Written Submissions in Appellate Proceedings" and "Guidelines in Respect of Executive Summaries 
of Written Submissions in Appellate Proceedings"31 by which the Appellate Body informed 
WTO Membership that it is adopting new guidelines regarding executive summaries. 
While the practice of asking participants in appeals to submit executive summaries of their written 
submissions and the deadlines for filing such su mmaries remained unchanged, the Appellate Body 
introduced two new aspects to this practice. Firs t, now the Appellate Body requests not only the 
participants but also each third participant that elects to file a written submission in an appeal to 
submit an executive summary of such written submission at the same time. Second, rather than 
using the executive summaries to assist in drafti ng its own description of the arguments of the 
participants, the Appellate Body now annexes to each of its reports the executive summaries submitted by the participants and third participan ts in the relevant appellate proceedings. This 
change enables Members to ensure that their ow n positions and requests to the Appellate Body 
are accurately reflected, in their own words, in  A p p e l l a t e  B o d y  r e p o r t s .  I t  a l s o  e n a b l e s  t h e  
Appellate Body to make optimal use of its limited resources. The Appellate Body implemented the 
new approach on a trial basis, starting from the appeals in Peru – Agricultural Products and 
China – HP-SSST (Japan) / China – HP-SSST (EU) . 
The "Guidelines in Respect of Executive Summaries of Written Submissions in Appellate 
Proceedings" seek to allow WTO Members to summarize their positions and supporting arguments 
in their own words, while encouraging a degree of harmonization in the structure and length of such summaries. In particular, according to the guidelines, each participant filing an appellant's, other appellant's, or appellee's submission, and each third participant filing a written submission 
shall submit an executive summary of such writ ten submission by the same deadline. In their 
executive summaries, participants may wish to identify each claim of error or response to a claim of error and each request to reverse, modify, or uphold specific panel findings and conclusions, 
                                               
31 Document WT/AB/23, 11 March 2015. WT/AB/26 
 
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  and summarize concisely the main arguments in su pport of such claims, responses, and requests, 
as presented in the relevant written submission. Third participants may wish to identify the legal issue(s) on appeal upon which they wish to express a view, and summarize concisely their position or view on such issue(s). The maximum length of each executive summary of a written submission 
is limited to the longer of 250 words or 10% of the total word count of the written submission 
itself. The executive summaries are annexed as addenda to the Appellate Body report, and their content is not revised or edited by the Appellate Body. These executive summaries do not serve as 
a substitute for the submissions of the participants  and third participants in the Appellate Body's 
examination of the appeal and, in addressing and disposing of the issues on appeal, the Appellate Body continues to draw upon and summari ze the arguments of the participants and third 
participants as appropriate. 
The Communications of the Appellate Body on "Ex ecutive Summaries of Written Submissions in 
Appellate Proceedings" and "Guidelines in Respect of Executive Summaries of Written Submissions in Appellate Proceedings" are provided in Annex 1.  
6.2  Procedural issues arising from appeals 
No amendments were made to the Working Procedures  during 2015. The current version of the 
Working Procedures is contained in document WT/AB/WP/6, which was circulated to WTO Members 
on 16 August 2010. The Appellate Body's comm unication on "Executive Summaries of Written 
Submissions in Appellate Proceedings", however, in dicated that the Appellate Body will consider 
whether it would be useful to incorporate some or all aspects of the "Guidelines in Respect of Executive Summaries of Written Submissions in Appellate Proceedings" into the Working 
Procedures once both the Appellate Body and Members have some experience with the guidelines 
that have now been introduced on a trial basis. 
The procedural issues that arose in appellate proceedings in 2015 are the following: (i) protection 
of business confidential information; (ii) public observation of the oral hearing; (iii) consolidation of 
appellate proceedings; (iv) extension of time to file submissions; (v) amendments to the official Working Schedule; (vi) unsolicited amicus curiae briefs; (vii) extension of time period for 
circulation of reports; and (viii) correction of clerical errors. These procedural issues are discussed 
below. 
6.2.1  Treatment of confidential information In China – HP-SSST (Japan) / China – HP-SSST (EU) , the Appellate Body examined the 
European Union's claim regarding the additional  working procedures adopted by the panel to 
protect BCI. The Appellate Body found that th e panel had conflated: (i) the confidentiality 
obligations under Anti-Dumping Agreement setting the framework for confidential treatment of 
information that is applicable in the context of domestic anti-dumping proceedings; and (ii) the 
confidentiality obligations applicable in WTO dispute settlement proceedings. In addition, the panel conflated: (i) confidentiality requirements generally applicable in WTO proceedings or in 
anti-dumping proceedings as foreseen in the above-mentioned provisions of the DSU and the 
Anti-Dumping Agreement; and (ii) the additional  layer of protection of sensitive business 
information provided under special procedures adopted by a panel for the purposes of a particular dispute. The Appellate Body stated that whether information treated as confidential pursuant to 
Article 6.5 of the Anti-Dumping Agreement, and submitted by a party to a WTO panel under the 
confidentiality requirements generally applicable in WTO dispute settlement, should receive additional confidential treatment as BCI, is to be determined in each case by a panel. Furthermore, 
it rests upon the panel to adjudicate any disagreement or dispute that may arise under those 
procedures regarding the designation or the treatm ent of information as business confidential. The 
Appellate Body added that, where necessary, a panel must draw appropriate inferences from a 
party's failure to provide requested information to the panel. The Appellate Body also clarified that 
any additional procedures adopted by a panel to protect the confidentiality of sensitive business 
information should go no further than necessary to guard against a determined risk of harm (actual or potential) that could result from disclosure, and must be consistent with the relevant 
provisions of the DSU and other covered agreem ents (including the Anti-Dumping Agreement). 
In US – Tuna II (Mexico) (Article 21.5 – Mexico) , the panel redacted certain text from its report, 
which it characterized as containing BCI. On appeal, Mexico also redacted certain portions of its WT/AB/26 
 
- 104 - 
 
  appellee's submission, and the European Union, as a third participant, asserted that its ability to 
comment on the panel report had been impaired by the panel's redactions. The Appellate Body 
saw no indication in the panel record suggesting that either Mexico or the United States had requested the adoption of special procedures to protect BCI, or that the panel had adopted such 
special procedures. Nor had the panel indicated the criteria used to identify the information 
considered to constitute BCI. Therefore, the Ap pellate Body did not see the legal basis for the 
panel to redact portions of its reasoning from its report. The Appellate Body further observed that, 
absent any request from the participants, procedures for additional protection of BCI did not apply 
in the appellate proceedings.  6.2.2  Public observation of the oral hearing 
The Appellate Body Division hearing the appeal in US – COOL (Article 21.5 – Canada and Mexico) , 
received a joint communication from Canada and the United States requesting that the Division allow observation by the public at the oral hearing of the participants' answers to questions as well 
as statements of those third participants who agree to public observation. The request was made 
on the understanding that any information that was designated as confidential in the documents filed by any party in the Panel proceedings would be adequately protected in the course of the oral 
hearing. Mexico did not object to allowing obse rvation by the public of the oral hearing, but 
maintained that its position in these proceeding s was without prejudice to its systemic views on 
the matter. The third participants expressed no ob jection to the request. The Division issued a 
Procedural Ruling allowing public observation of the oral hearing and adopting additional 
procedures for the conduct of the hearing.
32 Public observation of the oral hearing took place via 
simultaneous closed-circuit television broadcast to a separate room. Transmission was turned off during statements made by those third participants that had indicated their wish to maintain the 
confidentiality of their submissions.  
6.2.3  Consolidation of appellate proceedings In China – HP-SSST (Japan) / China – HP-SSST (EU) , the Appellate Body informed the participants 
and third participants that it intended to consolidate the appellate proceedings in these disputes, 
and gave them an opportunity to comment. Having received no objections, the Appellate Body decided, pursuant to Rule 16(1) of the Working Procedures to consolidate the appeals to the panel reports in China – HP-SSST (Japan) / China – HP-SSST (EU) due to the significant overlap in 
the content of these disputes for which the appeals were filed on the same date (WT/DS454/AB/R; 
WT/DS460/AB/R). A single Appellate Body Division was selected to hear both appeals, and a single oral hearing was held by the Division. 
6.2.4  Time-limits for the filing of written submissions 
In India – Agricultural Products , the Division received a letter from Australia requesting, pursuant 
to Rule 16 of the Working Procedures, an extens ion of the deadline for the filing of the third 
participants' submissions. Australia requested th at the deadline be extended by two days, given 
that the deadlines for the appellee's and third participants' submissions left third participants with only one working day to incorporate the appellee' s arguments into their own written submissions. 
The Division provided the participants and other third participants with an opportunity to comment 
and received no objections to Australia's request. Noting that India had presented arguments in its 
appellant's submission concerning the Panel's understanding of Australia's risk assessment, quarantine measures, and position in this disp ute, the Appellate Body decided to extend the 
deadline as requested by Australia. 
In US – COOL (Article 21.5 – Canada and Mexico) , Canada, Mexico, and the United States made a 
joint request to the Appellate Body to modify the time-periods for filing written submissions. 
The participants jointly submitted that "exceptional circumstances" present in the disputes meant 
that strict adherence to the regular deadlines for filing submissions would result in "manifest unfairness" within the meaning of Rule 16(2) of the Working Procedures. In particular, the participants submitted that the time-period set out in Rule 21 would not afford the 
United States as appellant sufficient time to pres ent its arguments, and that this would impede the 
                                               
32 The Procedural Ruling was attached as Annex 6 to US – COOL (Article 21.5 – Canada and Mexico) , 
WT/DS384/AB/RW, WT/DS386/AB/RW. WT/AB/26 
 
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  development of arguments in subsequent submissions, thereby impeding the orderly conduct of 
the appeal. In support of their request, the part icipants pointed to resource constraints due to 
concurrent work on other pending proceedings, as well as the constraints imposed by the contemporaneous holiday period, the multiple, complex issues at stake in these disputes, and the 
present workload of the Appellate Body. The Pres iding Member of the Appellate Body Division 
invited the third participants to comment and the Division suspended the deadlines for the filing of any Notice of Other Appeal, and of written submissions, until the issuance of a ruling on the 
participants' joint request. Brazil, the European Union, India, and Japan considered it to be within 
the discretion of the Appellate Body to modify de adlines for filing written submissions and no third 
participant expressed any objections. Thereafter, th e Division issued a Procedural Ruling extending 
the time-periods for filing written submissions in this appeal.
33  
In the same appellate proceedings, the Division rece ived a letter from Australia requesting that the 
deadline for filing third participants' submissions be further extended. Australia noted that, although the time-period between the filing of the appellees' submissions and the filing of the third 
participants' submissions was in line with the standard time-periods set out in the 
Working Procedures, in this particular case this  three-day period ran over a weekend, providing 
the third participants with only one working day to incorporate reactions to the appellees' 
submissions into their third participants' subm issions. Australia further explained that the 
challenges it faced in preparing its submission were exacerbated by the decreased staffing capacity during the peak summer holiday period in Australia. The Division received no objection to an extension of the deadline by the participants and the other third participants. Mexico submitted 
that it had no objection if the timetable for the subsequent stages of the appellate proceedings 
was not affected and if the extension was granted to all third participants. The Division then issued a Procedural Ruling further extending the deadline for filing written submissions for all third 
participants.
34  
 6.2.5  Requests to modify the date of the oral hearing 
In Argentina – Import Measures , before the Working Schedule for that appeal had been 
communicated to the participants and third partic ipants, Japan requested the Appellate Body that 
the oral hearing not be scheduled between 3-5 No vember 2014 on account of a scheduling conflict 
of a key member of its litigation team during  this period. The Appellate Body invited the 
participants and third participants to comment on Japan's request. Although none of the 
participants objected to Japan's request, Argentina and the European Union each indicated their own scheduling constraints and requested that the oral hearing not be held on 27-31 October and 
11-12 November 2014, respectively. For its part, the United States expressed a preference for the 
oral hearing to be held within 45 days of the date of filing of the Notice of Appeal, and noted that 
an oral hearing scheduled after 21 November 2014 would cause a scheduling conflict for its lead 
counsel. The Appellate Body Division issued a Procedural Ruling denying Japan's request.
35 The 
Appellate Body explained that, in its draft Work ing Schedule, drawn up prior to the receipt of 
Japan's request, the oral hearing had been scheduled to take place on 3-4 November 2014, and that such scheduling was coordinated with the working schedules in the two other proceedings also 
before the Appellate Body, namely, the appeals in US – Carbon Steel (India)  and  
US – Countervailing Measures (China) . The Division considered itself unable to accommodate 
Japan's request, given the overlap in the date s of the three working schedules, and in the 
composition of the Divisions hearing these three a ppeals, leaving the Appellate Body with limited 
choices for scheduling the oral hearings as well as its internal deliberations in this appeal.  
In US – Shrimp II (Viet Nam) , the United States requested that the scheduled date of the oral 
hearing be changed due to certain logistical diffic ulties faced by the United States in securing 
reasonable hotel accommodation in Geneva during the week of the hearing. Having considered the 
United States' request and comments received from Viet Nam and China, the Division informed the participants and third participants of its decision that the circumstances outlined by the 
                                               
33 The Procedural Ruling was attached as Annex 4 to US – COOL (Article 21.5 – Canada and Mexico) , 
WT/DS384/AB/RW, WT/DS386/AB/RW. 
34 The Procedural Ruling was attached as Annex 5 to US – COOL (Article 21.5 – Canada and Mexico) , 
WT/DS384/AB/RW, WT/DS386/AB/RW. 
35 The Procedural Ruling was attached as Annex 4 to Argentina – Import Measures , WT/DS438/AB/R, 
WT/DS444/AB/R, WT/DS445/AB/R. WT/AB/26 
 
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  United States did not, in this particular case, amount to "exceptional circumstances" that would 
result in "manifest unfairness" within the mean ing of Rule 16(2) of the Working Procedures. 
Therefore, the Division decided not to change the date of the oral hearing.36  
In US – Tuna II (Mexico) (Article 21.5 – Mexico) , Mexico requested that the oral hearing not be 
held as scheduled because a key member of Mexico's litigation team would not be available on 
those dates and attending the hearing with a reduced legal team would have an impact on its ability to present adequately its arguments before the Appellate Body. Neither the United States 
nor any of the third participants objected to Mexi co's request, at least with respect to certain 
proposed alternative dates. The Division issued a Procedural Ruling finding that Mexico had identified "exceptional circumstances", wi thin the meaning of Rule 16(2) of the 
Working Procedures, warranting modification of the dates for the oral hearing.
37 I n  r e a c h i n g  i t s  
conclusion, the Division took into account Mexico's right to defend properly its case, as well as the 
high level of activity experienced at that moment by the WTO dispute settlement system, which can impair a Member's ability to engage effectively in multiple, parallel proceedings. 
6.2.6  Unsolicited amicus curiae  briefs 
In US – Tuna II (Mexico) (Article 21.5 – Mexico) , the Appellate Body received one unsolicited 
amicus curiae  brief from a professor of law. The Division did not find it necessary to rely on this 
amicus curiae  brief in rendering its decision. 
6.2.7  Extension of time period for circulation of reports The 90-day time period stipulated in Article 17.5 of the DSU for the circulation of reports 
was exceeded in Argentina – Import Measures , US – COOL (Article 21.5 – Canada and Mexico) , 
India – Agricultural Products , Peru – Agricultural Products , China – HP-SSST (Japan) /  
China – HP-SSST (EU) , and US – Tuna II (Mexico) (Article 21.5 – Mexico) . 
The Appellate Body communicated to the DSB Chair the reasons why it was not possible to 
circulate the Appellate Body report within the 90-day time period in each of the appeals for which 
this time period was not met in 2015.
38 These reasons included the substantial workload of the 
Appellate Body; the number and complexity of the issues raised on appeal; the scheduling 
difficulties arising from overlap in the composition of Divisions hearing appeals concurrently 
pending before the Appellate Body; the demands that these concurrent appeals place on the WTO Secretariat's translation services; the extensions of the time-periods for filing written submissions granted at the request of the particip ants and third participants; the rescheduling of 
oral hearings; and the shortage of staff in the Appellate Body Secretariat.  
6.2.8  Correction of clerical errors In India – Agricultural Products , India requested authorization, pursuant to Rule 18(5) of the 
Working Procedures, to correct a clerical error in its Notice of Appeal. The Appellate Body Division 
provided the United States and the third participants with an opportunity to comment in writing on India's request. Having received no objections to India's request, the Division authorized India to 
correct the clerical error in its Notice of Appeal.
39 
7  ARBITRATIONS UNDER ARTICLE 21.3(c) OF THE DSU Individual Appellate Body Members have been appointed to serve as arbitrators under 
Article 21.3(c) of the DSU to determine the "reaso nable period of time" for the implementation by 
                                               
36 The Procedural Ruling was attached as Annex 2 to  US – Shrimp II (Viet Nam) , WT/DS429/AB/R. 
37 The Procedural Ruling was attached as Annex D to  US – Tuna II (Mexico) (Article 21.5 – Mexico) , 
WT/DS381/AB/RW. 
38 For Argentina – Import Measures, see WT/DS438/17, WT/DS444/15, and WT/DS/445/16; US – COOL 
(Article 21.5 – Canada and Mexico) , see WT/DS384/31, WT/DS386/30; India – Agricultural Products , see 
WT/DS430/9; for Peru – Agricultural Products , see WT/DS457/9; for China – HP-SSST (Japan) / China – HP-
SSST (EU) , see WT/DS454/9, WT/DS460/9; for US – Tuna II (Mexico) (Article 21.5 – Mexico) , see 
WT/DS381/26. 
39 The document circulated as WT/DS430/8 reflected th e corrected version of India's Notice of Appeal. WT/AB/26 
 
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  a WTO Member of the recommendations and rulings adopted by the DSB in dispute settlement 
cases. The DSU does not specify who shall serve as arbitrator. The parties to the arbitration select the arbitrator by agreement or, if they cannot agr ee on an arbitrator, the Director-General of the 
WTO appoints the arbitrator. In all but one arbitration proceeding, all those who have served as 
arbitrators pursuant to Article 21.3(c) have been current or former Appellate Body Members.
40 In 
carrying out arbitrations under Article 21.3(c), Appellate Body Members act in an individual capacity. 
Further information about the three arbitration proceedings carried out in 2015 is provided below. 
7.1  United States — Countervailing Duty Meas ures on Certain Products from China , 
WT/DS437/16  
On 16 January 2015, the Dispute Settlement Body (DSB) adopted the Panel and Appellate Body 
Reports in United States — Countervailing Duty Measures on Certain Products from China . This 
dispute concerned a challenge by China to counterva iling duties imposed by the United States on a 
variety of products from China following 17 countervailing duty investigations initiated by the 
US Department of Commerce (USDOC) between 2007 and 2012. 
With respect to Articles 14(d) and 1.1(b) of the SCM Agreement, the Appellate Body reversed the 
Panel's finding that USDOC could reject private prices as potential benchmarks in the 
investigations at issue on the grounds that such prices were distorted. The Appellate Body also 
reversed the Panel's finding that China had failed to establish that the USDOC had acted inconsistently with Articles 14(d) or 1.1(b) by rejecting in-country private prices in China as benefit benchmarks in the OCTG, Solar Panels, Pressure Pipe, and Line Pipe countervailing duty 
investigations. The Appellate Body completed the legal analysis and found that the USDOC had 
acted inconsistently with the obligations of the United States under Article 14(d) and Article 1.1(b) in these four countervailing duty investigations. The Appellate Body upheld the Panel's finding that 
the USDOC did not act inconsistently with the obliga tions of the United States under Article 2.1 by 
analysing specificity exclusively under Article 2.1(c). However, the Appellate Body modified the Panel's interpretation of Article 2.1(c) and, in particular, its interpretation of the concepts of 
"subsidy programme" and "granting authority" that it developed in the context of its analysis of de 
facto specificity of certain subsidies at issue. It also reversed the Panel's finding that China had not 
established that the USDOC had acted inconsistent ly with Article 2.1 by failing to identify a 
"subsidy programme", as well as the Panel's finding that China had not established that the 
USDOC had acted inconsistently with Article 2.1(c) by failing to identify a "granting authority". The 
Appellate Body was unable to complete the legal analysis with respect to China's claims under Article 2.1. Finally, with respect to the use of "facts available" by the USDOC, the Appellate Body 
reversed the Panel's finding that China had failed to establish that the USDOC had acted 
inconsistently with Article 12.7 by not relying on the facts that were available on the record in making its preliminary or final determinations, but it was unable to complete the analysis in this 
regard.
41 
By a letter to the Chair of the DSB dated 13 February 2015, the United States indicated its 
intention to implement the recommendations and rulings of the DSB in this dispute in a manner that respects its WTO obligations, and stated that it would require a reasonable period of time 
within which to do so.  Consultations between the parties failed to result in an agreement on the 
reasonable period of time for implementation. China therefore requested that this period be determined through arbitration pursuant to Article 21.3(c) of the DSU. China and the United States 
were unable to agree on an arbitrator. Consequently, China requested the Director-General of the 
WTO to appoint the arbitrator. The Director-Gener al appointed Mr Georges M. Abi-Saab as the 
Arbitrator on 17 July 2015, after consulting with the parties.  
The United States requested a reasonable period of time for implementation in this dispute of 
19 months, asserting that this is the shortest period of time within which the USDOC can modify the countervailing duty investigations at issue in  the light of the procedural requirements under 
                                               
40 Mr Simon Farbenbloom as the Arbitrator in  United States – Anti-Dumping  Measures on Certain Shrimp 
from Viet Nam . Mr. Farbenbloom had previously served as chai rperson of the Panel in the underlying dispute. 
41 For a detailed summary of the A ppellate Body Report in the under lying dispute, see the Appellate 
Body Annual Report for 2014, WT/AB/24, p. 61. WT/AB/26 
 
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  United States' law, the complexity of the issues involved, and the workload of the USDOC. China 
responded that the United States should be gr anted a period of ten months to implement the 
recommendations and rulings of the DSB in this dispute and asserted that several steps of the implementation process require less time than requested by the United States. 
The Arbitrator began by noting that, for all but two investigations, the parties agreed that the 
recommendations and rulings of the DSB in this dispute would be implemented through modification of the WTO-inconsistent measures by remedial administrative action, i.e. through the 
process set out in Section 129(b)(1) of the URAA. The Arbitrator also noted that the parties agreed 
that the implementation process for the investigations at issue consists of the following specific steps: (i) consultation and pre-commencement analysis; (ii) seeking information from interested parties and analysing that information; (iii) verification of the information received; (iv) issuing of 
preliminary determinations; (v) receipt of case and rebuttal briefs; (vi) issuing of final 
determinations; (vii) correction of ministerial errors; and (viii) consultations with the United States' Congress and implementation.  
Based on the language of Section 129(b), the Arbitrator considered that China had not established 
that the 180-day time-period specified in Section 129(b)(2) is the maximum amount of time, in every case, for the USDOC to issue a redetermination implementing the recommendations and 
rulings of the DSB.  
The Arbitrator identified certain general consider ations that may bear upon the implementation 
process in this dispute. First, the Arbitrator noted that, given the United States' statement at the hearing, implementation of the Panel's "as such" finding of inconsistency concerning the policy 
articulated in the Kitchen Shelving investigation should not be a consideration in determining the 
reasonable period of time for implementation. Seco nd, the Arbitrator also considered relevant the 
complexity of several legal interpretations and findings made by the Panel and the Appellate Body. 
The Arbitrator recalled the Panel's finding as to how it can be determined that an entity is a 
"public body" within the meaning of the SCM Agre ement and the Appellate Body's finding as to 
how it can be evaluated whether the proposed benc hmark prices are market determined such that 
they can be used to assess whether benefit is conferred. The Arbitrator considered that 
implementing such findings may require the USDOC to undertake further analysis and consider additional factors compared to the original proceedings. 
Turning to the parties' disagreement over the time required for pre-commencement analysis and 
consultations, that is, the initial step before any formal implementation action is taken, the 
Arbitrator considered it reasonable to expect that, with respect to the five findings of inconsistency 
by the Panel which were not appealed by the Unit ed States, the United States' authorities tasked 
with implementation could begin their preparatory work and consultations once it became clear 
that the Panel's findings would not be appealed. With respect to the time needed for seeking information from interested parties and analysing such information, the Arbitrator noted China's 
position that it would only be providing further information in six out of the fifteen investigations at 
issue, and that much of this information would be similar as all six investigations concern the steel industry. However, the Arbitrator also noted that, besides the Government of China, other interested parties might also provide information,  and that though the information submitted by 
the Government of China might be similar, the analysis of that information might be different in 
the light of the determination required in each investigation. 
With respect to the parties' disagreement over the time needed for verification of the information 
received, the Arbitrator noted that, regardless of whether verification was required in every 
investigation as a matter of US law, Article 12.5 of the SCM Agreement requires that investigating authorities " shall … satisfy themselves as to the accuracy of the information supplied by interested 
Members or interested parties". The Arbitrator further noted that the USDOC may receive 
new information from other interested parties which may warrant verification.  
The Arbitrator did not consider the current workload of the USDOC to be relevant for the 
determination of the reasonable period of time in  the light of the fundamental obligations assumed 
by the Members of the WTO. The Arbitrator noted that prioritizing the investigations at issue 
reflects the exercise of a flexibility which is avai lable to the USDOC, and which it is expected to 
utilize. Finally, the Arbitrator considered the pa rties' disagreement over the means to implement 
the Panel's finding of inconsistency relating to the initiation of investigations in respect of certain 
export restraints in two investigations. China argued that the only means of implementing this WT/AB/26 
 
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  finding is the withdrawal of the determinations, whereas the United States considered that 
implementation could be achieved by modificati on of the determinations. The Arbitrator noted 
that, even if modification of the determinations falls within the range of permissible implementation actions, as of the date of the he aring in this proceeding, the USDOC had still not 
reached a decision on whether it considered that modification of the determinations was possible. 
The Arbitrator considered that although the United States has a measure of discretion in choosing the means of implementing the Panel's finding at issue, the implementation process with respect 
to the Panel's "export restraints" finding could reas onably have proceeded further than it had. The 
Arbitrator therefore was of the view that the impl ementation process in these investigations should 
not be a reason to extend the reasonable period of time for implementation.  
In the light of the above, the Arbitrator determin ed that the "reasonable period of time" for the 
United States to implement the recommendations and rulings of the DSB in this dispute is 
14 and-a-half months, expiring on 1 April 2016. 
7.2  United States — Anti-Dumping Measures  on Certain Shrimp from Viet Nam , 
WT/DS429/16 
On 22 April 2015, the DSB adopted the Panel and Appellate Body Reports in United States – 
Anti-Dumping Measures on Certain Shrimp from Viet Nam . This dispute concerned anti-dumping 
measures imposed by the United States on imports of certain shrimp from Viet Nam, as well as 
certain US laws or practices concerning the imposition of anti-dumping measures and the implementation of adverse DSB recommendations and rulings in trade remedy cases. The investigation at issue was initiated in January 2004, resulting in a final anti-dumping order 
on 8 December 2004, amended on 1 February 2005.  
The Panel found that the United States acted inconsistently with: (i) Article 9.3 of the 
Anti-Dumping Agreement and Article VI:2 of the GATT 1994 as a result of the USDOC's application 
of the simple zeroing methodology to calculate the dumping margins of mandatory respondents in 
the fourth, fifth and sixth administrative reviews; (ii) Articles 6.10 and 9.2 of the Anti-Dumping Agreement because the practice or policy whereb y, in NME proceedings, the USDOC presumes that 
all producers/exporters in the NME country belong to a single, NME-wide, entity and assigns a 
single rate to these producers/exporters (the "NME-wide entity practice"), is inconsistent "as such" with these provisions; (iii) Articles 6.10 and 9.2 of the Anti-Dumping Agreement as a result of the 
application by the USDOC, in the fourth, fifth and sixth administrative reviews, of a rebuttable 
presumption that all companies in Viet Nam belong to a single, Viet Nam-wide, entity and 
assignment of a single rate to that entity; (iv) Article 9.4 of the Anti-Dumping Agreement as a result of the application to the Viet Nam-wide entity of a duty rate exceeding the ceiling applicable 
under that provision in the fourth, fifth and sixth administrative reviews; (v) Article 11.3 of the 
Anti-Dumping Agreement as a result of the USDOC's reliance on WTO-inconsistent margins of dumping or rates in its likelihood-of-dumping determination in the first sunset review; (vi) Article 
11.2 of the Anti-Dumping Agreement in the fourth and fifth administrative reviews as a result of its 
treatment of requests for revocation made by certain Vietnamese producers/exporters that were not being individually examined; and (vii) Article 11.2 of the Anti-Dumping Agreement as a result 
of the USDOC's reliance on WTO-inconsistent margins of dumping in its determination, in the 
fourth and fifth administrative reviews, not to re voke the Shrimp anti-dumping order with respect 
to certain Vietnamese producers/exporters. Furthermore, the Panel found that Viet Nam had failed to establish that Section 129(c)(1) of the Uruguay Round Agreement Act (URAA) precludes 
implementation of recommendations and rulings of the DSB with respect to prior unliquidated 
entries and, consequently, that Viet Nam had not established that Section 129(c)(1) is inconsistent 
"as such" with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement. Viet Nam 
appealed this finding of the Panel. Specifically, Viet Nam claimed that the Panel acted 
inconsistently with Article 11 of the DSU because its interpretation and analysis of Section 129(c)(1) of the URAA was not based on an objective assessment of the provision and its broader statutory context. The Appellate Body rejected Viet Nam's claim that the Panel acted 
inconsistently with Article 11 of the DSU, and upheld the relevant finding of the Panel. The United 
States did not appeal any findings of the Panel. 
At the meeting of the DSB held on 20 May 2015, the United States indicated its intention to 
implement the DSB's recommendations and rulings in this dispute in a manner that respects its 
WTO obligations, and stated that it would need a re asonable period of time in which to do so. As 
the parties were unable to agree on a "reasonable period of time" for implementation, Viet Nam WT/AB/26 
 
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  referred the matter to arbitration pursuant to Article 21.3(c). By joint letter dated 7 October 2015, 
Viet Nam and the United States agreed on Mr Simon Farbenbloom as the Arbitrator. Mr Farbenbloom had served as chairperson of the Panel in the underlying dispute. He accepted his appointment on 8 October 2015. 
The United States requested a reasonable period of  time for implementation in this dispute of "at 
least 21 months", asserting that this is the shortest period of time within which it would be possible to implement the recommendations and rulings of the DSB, given the procedural 
requirements under US law, the complexity of the issues involved, and the current resource 
demands and constraints of the USDOC. As for th e means of implementation, the United States 
submitted that the most practical way under US law would be to implement the Panel's findings in three, sequential, phases, utilizing the procedures set out in Section 123(g) and Section 129(b) of 
the URAA.  
Viet Nam responded that the time-frame proposed by the United States was extraordinarily long, 
and that there was no basis for a longer period than six months for implementation of the DSB's 
findings and recommendations. Although Viet Nam ag reed in principle that the implementation of 
the Panel's "as such" and "as applied" findings will need to be conducted sequentially, it contended that a greater degree of overlap between the diffe rent phases proposed by the United States 
would be possible. Moreover, Viet Nam submitted that the Panel's findings, to the extent they 
concern "prior unliquidated entries", cannot be implemented by the means of implementation proposed by the United States.  
The Arbitrator began by noting that, overall, th e sequence of the implementation steps proposed 
by the United States appeared reasonable in the context of the US legal system. Specifically, given 
that any modification to the NME-wide entity practice would need to be incorporated in the implementation of the Panel's "as applied" findings in the fourth, fifth, and sixth administrative 
reviews, he considered it logical that the implem entation of the Panel's "as such" finding on the 
practice would need to be completed first. Furthermore, because the results of the Section 129 determinations on the administrative reviews may be taken into account for purposes of making a 
sunset review determination, it also seemed logi cal to the Arbitrator that the implementation of 
the finding concerning the first sunset review would be completed in the last phase.  
The Arbitrator addressed three points of conten tion between the parties in relation to the 
implementation process under Section 123(g) of the URAA. First, he noted the parties' 
disagreement over the time needed for the prep aratory stage of the Section 123 process. The 
Arbitrator recalled that arbitrators in past disputes had taken into account whether the implementing Member had taken action since the adoption of the DSB's recommendations and 
rulings. The Arbitrator further noted that, in the present dispute, the United States did not appeal 
any of the Panel's findings, and that seven months had passed since the adoption of the Panel and Appellate Body Reports. Therefore, the Arbitrator expressed the view that it would be reasonable 
to assume that preparatory work of the implementation process under Section 123(g) had already 
commenced. He also noted the United States' confirmation at the hearing that consultations regarding the implementation of the Panel's "a s such" findings had occurred, and that other 
preparatory work relating to implementation had also been undertaken.  
Second, as regards the time needed for processing the comments of the public on the preliminary 
determination, the Arbitrator observed that any proposed modification of the NME-wide entity 
practice, once published, could trigger multiple views from the public that the USDOC would need 
to address in the final determination. At the same time, he stressed the need for a proper balance 
between the transparency and due process rights of  interested parties, on the one hand, and the 
promptness required in implementing recommendatio ns and rulings of the DSB, on the other hand. 
Third, with respect to the overall time-frame fo r the completion of the Section 123 process, the 
Arbitrator noted that, although no specific time-periods are prescribed for the steps set out under Section 123(g), these steps are mandatory and must be conducted. The Arbitrator further noted that Section 123(g) had been utilized by the Un ited States in a number of prior disputes for 
purposes of implementing the DSB's recommendations and rulings, and that, on some occasions, 
the United States had indicated that a period of seven to nine months would be sufficient to complete the process.  WT/AB/26 
 
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  Thereafter, the Arbitrator turned to the prop osed implementation steps and the relevant 
time-frames under Section 129(b) of the URAA. Th e Arbitrator began by noting the parties' 
agreement that the following five steps are required to implement the Panel's relevant findings: (i) the United States Trade Representative (USTR) consults with the USDOC and the relevant 
congressional committees; (ii) the USTR reques ts the USDOC to take implementation action; 
(iii) the USDOC issues preliminary determinations and provides an opportunity for interested parties to comment; (iv) the USTR consults with the USDOC and the relevant congressional 
committees with regard to the USDOC's determinations; and (v) the USTR directs the USDOC to 
implement the determinations, as well as the issuance of a US Federal Register notice in which the USDOC officially implements the determinations. The Arbitrator, however, also noted that the parties' views diverged significantly with respect to: (i) the time needed for some of these steps; 
(ii) the need for additional information-gatherin g; (iii) the degree of overlap among certain steps 
in the implementation process; and (iv) the relevance of the current workload of the USDOC to the determination of the reasonable period of time. 
First, the Arbitrator rejected Viet Nam's argument that the substantive work for the Section 129 
proceedings has to be completed in 180 days. He noted that Section 129(b)(2) requires that the determination by the USDOC to implement the Panel's findings be made within 180 days from the 
USTR's request to the USDOC to take implementing actions. The Arbitrator recalled that, in 
addition to this 180-day period, Sections 129(b)(1), (3), and (4) set out other actions involving the USTR, the USDOC, and the US Congress that have  to be completed, both before and after the 
step contemplated in Section 129(b)(2). 
Second, the Arbitrator recalled that the NME-wide entity practice concerns the USDOC's approach 
in addressing the relationship between the NM E Member government and producers/exporters 
from that Member, and that the Panel's "as such" finding regarding this practice must be 
implemented first. In the Arbitrator's view, it cannot be excluded that, following a modification of 
the NME-wide entity practice, the USDOC may need to gather more information regarding individual producers/exporters from Viet Nam in th e administrative reviews. At the same time, the 
Arbitrator noted that, once relevant additional information is gathered, changing the computer 
programme for recalculating dumping margins might not necessarily be time-consuming in itself. 
Finally, the Arbitrator recalled that there must be a balance between the transparency and due 
process rights of interested parties, on the one hand, and the promptness required in 
implementing recommendations and rulings of the DSB, on the other hand. 
Third, the Arbitrator turned to consider the pa rties' arguments regarding the degree of overlap 
among different steps of the Section 129 proceedings. With regard to Viet Nam's argument that 
the USDOC could speed up the process by issu ing a separate Section 129 determination on 
Minh Phu's revocation request while the Section 123 process is ongoing, the Arbitrator noted that the United States has a measure of discretion to decide how to structure its Section 129 
determinations according to its normal practice, while at the same time utilizing all the available 
flexibilities. In this respect, the Arbitrator no ted that the USDOC's work on implementing the 
Panel's findings regarding the use of simple zeroing and Minh Phu's revocation request would be conducted concurrently with the Section 123 process. The Arbitrator further stated that there 
should not be a significant time-lag between the end of the Section 129 proceedings on the 
administrative reviews and the beginning of the Section 129 sunset review proceedings. 
Finally, the Arbitrator turned to consider the United States' argument that the current workload of 
the USDOC should be taken into account as part of the particular circumstances of this dispute. 
The Arbitrator recalled that the United States had raised the same argument in the arbitration in 
US – Countervailing Measures (China) .
42 The arbitrator in that dispute found that, in the light of 
the fundamental obligations assumed by the Members of the WTO, and the flexibilities available in 
the US legal system, the current workload of the USDOC should not be considered as relevant to the determination of the reasonable period of ti me for implementation. The Arbitrator considered 
that prioritizing compliance action in respect of the DSB's recommendations and rulings at issue in 
these proceedings would constitute an exercise of flexibility available to th e USDOC, which it would 
be expected to utilize. The Arbitrator theref ore did not find the workload claimed by the 
United States to be relevant to his determination of the reasonable period of time.  
                                               
42 Award of the Arbitrator, United States – Countervailing Duty Measures on Certain Products from 
China – Arbitration under Article 21.3(c) of the DSU , WT/DS437/16, 9 October 2015. WT/AB/26 
 
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  In the light of the above, the Arbitrator determin ed that the "reasonable period of time" for the 
United States to implement the recommendations and rulings of the DSB in this dispute is 15 months from the adoption of the Panel and Appellate Body Reports, thus expiring on 
22 July 2016. 
7.3  Peru – Additional Duty on Imports of Certain Agricultural Products , WT/DS457/15 
On 31 July 2015, the DSB adopted the Panel and Appellate Body Reports in Peru – Additional Duty 
on Imports of Certain Agricultural Products . This dispute concerned additional duties imposed by 
Peru on imports of certain types of rice, sugar,  corn, and milk. The Panel and the Appellate Body 
found that the additional duties resulting from the Price Range System (PRS) are inconsistent with Article 4.2 of the Agreement on Agriculture and the second sentence of Article II:1(b) of the 
GATT 1994.
43 
At the DSB meeting held on 31 July 2015, Peru in formed the DSB of its intention to implement the 
recommendations and rulings of the DSB in this dispute and stated that it would need a reasonable period of time in which to do so. As the parties were unable to agree on a "reasonable period of 
time" for implementation, Guatemala referred the matter to arbitration pursuant to Article 21.3(c) 
of the DSU. By joint letter dated 9 October 2015, Peru and Guatemala agreed to ask Mr Ricardo Ramírez-Hernández to serve as the Arbitrator for this matter. Mr Ramírez-Hernández accepted his 
appointment on 9 October 2015. 
Peru requested a reasonable period of time for implementation in this dispute of at least 
19 months, taking into account: (i) the procedural steps contemplated in Peru's internal regulations, (ii) the expected im pact of the climate phenomenon El Niño  on the implementation 
process undertaken by Peruvian authorities, and (iii ) the complexity and role of the PRS in Peru's 
tariff policy. As for the chosen means of implemen tation, Peru submitted that it would implement 
the recommendations and rulings of the DSB by way of a "Supreme Decree". Supreme Decrees are 
laws of general application issued by the President of Peru that govern rules with the status of law 
or regulate governmental activities at the nation al level. Guatemala responded that the reasonable 
period of time for implementation should be five months, arguing that (i) this time-frame would be 
sufficiently long and reasonable in accordance with Peru's regulatory framework, (ii) the climate 
phenomenon El Niño  is not a valid consideration for an extension of the reasonable period of time, 
and (iii) the PRS is not a complex measure or an essential component of Peru's tariff policy. Guatemala also noted that it would not be opposed to a reasonable period of time of six months if 
the Arbitrator were to consider other factors in hi s determination of the reasonable period of time. 
The Arbitrator first addressed the reasonable periods of time proposed by the parties through an 
examination of the following six procedural steps identified by Peru as necessary to enact the 
Supreme Decree: (i) the process of consultations wi th relevant stakeholders; (ii) the designing of 
the implementation measure; (iii) the preparation of a draft Supreme Decree; (iv) the approval of 
the draft by the Commission of Vice-Ministerial Co ordination; (v) the approval of the draft by the 
Council of Ministers; and (vi) the endorsement of  the draft by the Minister of Agriculture and 
Irrigation, the signature of the Minister of Econom y and Finance, and the publication and entry into 
force of the Supreme Decree. 
First, in relation to the consultations process with relevant stakeholders, Peru argued that although 
consultations are not required by law, they have become common practice within Peru's legal 
system in order to maintain dialogue with sector s that are affected by regulatory changes. Peru 
added that the consultations serve three objectives: (i) to inform the relevant private sectors that 
the regulatory change comes from a decision by an international organization, (ii) to discuss with 
the private sectors the means for implementation, and (iii) to establish support programs to improve competitiveness and withstand the negati ve impact of implementation on the private 
sectors at issue. Guatemala argued that consultations should not be taken into account when 
determining the reasonable period of time for implementation since they are not necessary for 
implementation or required by Peruvian law. Recalling previous arbitrations under Article 21.3(c) of the DSU, the Arbitrator noted that structural adjustments to allow a private sector to adapt to 
the withdrawal or the modification of an inconsistent measure, such as support programs for the 
affected sectors, cannot be relevant for the dete rmination of the reasonable period of time for 
                                               
43 For a detailed summary of th e Appellate Body Report in th is dispute, see p. 57 above. WT/AB/26 
 
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  implementation. Thus, the Arbitrator concluded that the creation of support programs was not 
relevant for his determination and that, in any event, the consultations at issue could be conducted in parallel with implementation. Highligh ting that the support programs covered in the 
first step are the same as the support programs  included in the second step, the Arbitrator 
considered that the first step and part of the second step are not relevant for the determination of 
the reasonable period of time for implementation. 
Second, with respect to designing the implementation measure, Peru submitted that its laws 
establish a maximum period of time  of six months to complete this step. Guatemala argued that, 
based on the clarity of Peru's obligation to cease applying the additional duty resulting from the 
PRS – this could be completed in three months. Th e Arbitrator considered that Guatemala had not 
provided sufficient explanation as to how its calculation resulted in three months. Accordingly, the 
Arbitrator considered only the amount of time required under Peruvian law, i.e. six months. 
Finally, in relation to steps three to six, Peru submitted minimum and maxi mum periods of time to 
complete steps three to five, as well as a single pe riod of time within which to complete step six. 
The Arbitrator agreed with Guatemala that a Member must make all possible efforts to implement, 
in the shortest time possible, the recommendations  and rulings of the DSB. Prompt compliance, in 
the view of the Arbitrator, is a "fundamental cogw heel" for the proper functioning of WTO dispute 
settlement. On this basis, the Arbitrator consider ed that, in accordance with the usual periods of 
time provided for under Peruvian law, and taking into account Peru's obligation to bring its measure into conformity in the shortest time possible, Peru could prepare and issue a Supreme Decree in a shorter period than that proposed by Peru. 
The Arbitrator then turned to examine whether there were "particular circumstances" in this case 
that could affect his determination of the reasonable period of time for implementation. 
Pursuant to Article 21.2 of the DSU, the Arbitrator paid special attention both to the interests of 
Peru as an implementing developing Member and to the interests of Guatemala as a complaining 
developing Member. The Arbitrator, however, co ncluded that neither Peru nor Guatemala had 
demonstrated that its status as a developing country Member should be a factor in determining 
the reasonable period of time. Thus, the Arbitrator did not consider the "developing country" 
status of Peru and Guatemala in his determination. 
In addition, the Arbitrator assessed the relevance of the climate phenomenon El Niño as a 
"particular circumstance" in this dispute, as raised by Peru. The Arbitrator considered that a 
natural disaster could constitute a "particular circumstance" in a case and, thus, a relevant factor 
in determining the reasonable period of time. Th e Arbitrator also noted that the prevention of 
natural disasters, such as El Niño , as well as the mitigation of the effects of such natural disasters, 
could clearly affect the regulatory or legisl ative capacity of a Member to implement the 
recommendations and rulings of the DSB. Nevertheless, the Arbitrator considered that Peru had not sufficiently demonstrated the impact that El Niño , and the actions taken by Peru to mitigate its 
negative effects, would have on Peru's regulatory capacity to implement the recommendations and 
rulings of the DSB. Accordingly, the Arbitrator concluded that he was unable to assess how and to 
what extent Peru's activities related to El Niño  affect the reasonable period of time for 
implementation. 
Finally, the Arbitrator assessed the role of the PRS on Peru's economic and tariff policy as a 
"particular circumstance". The Arbitrator noted th e Panel's and Appellate Body's conclusions that 
the PRS has an impact on the prices in the Pe ruvian market for the four groups of covered 
products. The Arbitrator also noted that Peru has gradually reduced the role of the PRS in relation 
to the products covered under the PRS. The Arbitr ator considered that Peru had not demonstrated 
that the PRS constitutes an essential element of Peru's economic and tariff policy and, 
furthermore, how this element would affect or influence Peru's regulatory capacity in a way that 
would justify a longer period of time for implementing the recommendations and rulings of the DSB. Thus, the Arbitrator concluded that the func tion and importance of the PRS should not be 
taken into account as a "particular circumstance" in his determination of the reasonable period 
of time. WT/AB/26 
 
- 114 - 
 
  In the light of the above, the Arbitrator determined  that the reasonable period of time for Peru to 
implement the recommendations and rulings of the DSB in this dispute is 7 months and 29 days, 
expiring on 29 March 2016.  
8  OTHER ACTIVITIES 
8.1  WTO 20th Anniversary Conferences 
In 2015, the Appellate Body launched a series of conferences to celebrate the Twentieth 
Anniversary of the WTO and its dispute settlement mechanism. The conferences have been hosted 
by academic institutions and have focused on current dispute settlement issues and the 
Appellate Body’s contribution to the settlemen t of disputes and other aspects of WTO law. 
Participants have included current and former A ppellate Body Members, high-ranking government 
representatives, WTO officials, academics, journali sts, students, and civil society representatives. 
The first four conferences in the series were held in 2015. 
The first conference took place in Florence, Italy, on 15 May 2015. It was organized by the 
European University Institute. Mr. Peter Van de n Bossche, Appellate Body Member and Professor 
at Maastricht University, was a member of the steering committee for this conference. 
The conference focused on issues related to the resolution of international trade disputes and regulatory convergence in the multilateral trading system. 
The second set of conferences in the series was held in Beijing, Shanghai and Shenzen, China, 
from 2 to 6 July 2015. The conference in Be ijing was organized by Tsinghua University. 
The conferences in Shanghai and Shenzhen were or ganized by Tsinghua University in cooperation 
with, respectively, the Shanghai WTO Centre an d the Shenzen WTO Centre. Ms. Yuejiao Zhang, 
Appellate Body Member and Professor of Law at Ts inghua University and Shantou University, was a 
member of the steering committee for these conferences. The conferences addressed several issues related to the multilateral trading system, including the evolution of the GATT/WTO dispute 
settlement system, China and the WTO, and challe nges to the dispute settlement system and DSU 
reform. 
The third conference was held in Seoul, Korea, on 28 August 2015. It was organized by the 
Seoul National University. Mr. Seung Wha Chang,  Appellate Body Member and Professor at the 
Seoul National University, was a member of the conference steering committee. The conference 
focused on issues related to the new challenges for dispute settlement mechanisms in the global trading regime, new trends in rule-making in the context of regional trade agreements, and 
jurisdictional conflicts between the dispute settlement systems of the WTO and free trade 
agreements. 
The fourth conference was held in Cancún, Mexico, from 2 to 4 December 2015. 
Mr Ricardo Ramírez-Hernández, Appellate Body Member and Professor at the Mexican National 
University (UNAM), was a member of the steerin g committee for this conference. The conference 
addressed issues relating to the role of Latin America in the multilateral trading system, the 
evolution of the international trade practice in the region, and the implementation of the Trade 
Facilitation Agreement in Latin America. 
The next conference will take place in Cambridge (Massachusetts), United States of America, in 
April 2016. It will be organized by Harvard Un iversity. Mr. Thomas Graham, Appellate Body 
Member, is on the conference steering committee. It  is also possible that a conference will take 
place in India during the second semester of 2016. WT/AB/26 
 
- 115 - 
 
  8.2  WTO internship programme 
The Appellate Body Secretariat participates in the WTO internship programme, which allows 
post-graduate university students to gain practical experience and a deeper knowledge of the global multilateral trading system in general, an d WTO dispute settlement procedures in particular. 
Interns in the Appellate Body Secretariat obtain  first-hand experience of the procedural and 
substantive aspects of WTO dispute settlement and, in particular, appellate proceedings. The internship programme is open to nationals of  WTO Members and to nationals of countries and 
customs territories engaged in accession negotiations. An internship is generally for a three-month 
period. During 2015, the Appellate Body Secretariat welcomed interns from Belgium, Bulgaria, Costa Rica, India, Ireland, and Japan. A to tal of 130 post-graduate students, of over 
50 nationalities, have completed internships with the Appellate Body Secretariat since 1998. 
Further information about the WTO internship programme, including eligibility requirements and 
application instructions, may be obtained online at: 
<https://www.wto.org/english/thewto_e/vacan_e/intern_e.htm > 
8.3  The WTO Digital Dispute Settlement Registry 
The WTO Digital Dispute Settlement Registry is being developed as a comprehensive application to 
manage the workflow of the dispute settlement process, as well as to maintain digital information 
about disputes. This application features: (i) a secure electronic registry for filing and serving 
dispute settlement documents online; (ii) a central electronic storage facility for all dispute settlement records; and (iii) a research facility on dispute settlement information and statistics. 
The Digital Registry will provide for the electron ic filing of submissions in disputes, and for 
the creation of an e-docket of all documents su bmitted in a particular case. The system will 
feature: (i) a facility to securely file submissions and other dispute-related documents electronically; (ii) a means of paperless and secure service on other parties of submissions and 
exhibits; and (iii) a comprehensive calendar of deadlines to assist Members and the Secretariat 
with workflow management. 
As a storage facility, the Digital Registry will provide access to information about WTO disputes, 
in particular, it will serve as an online repo sitory of all panel and Appellate Body records. 
During 2015, the Appellate Body participated in  the final development and testing of the DDSR 
application as well as a comprehensive User Guide, which will be provided to Members. A pilot phase started in July 2015 where parties and panelists use the DDSR in parallel to the existing 
paper filing procedures. Every panel established since that date has been part of the pilot. It is 
expected that the first appeal using the DDSR in pilot phase will take place some time in 2016.  
As a research facility, the Digital Registry will al low Members and the public to search the digital 
records of publicly available data of past disputes. Users will have access to a broader range of 
information and statistics than in the past. With the extent of the information available, WTO Members and the Secretariat, as well as the in terested public, will be able to generate more 
in-depth and informative statistics on WTO dispute settlement activity. 
 WT/AB/26 
 
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 ANNEX 1 
EXECUTIVE SUMMARIES OF WRITTEN SU BMISSIONS IN APPELLATE PROCEEDINGS1 
COMMUNICATION FROM THE APPELLATE BODY 
The Working Procedures for Appellate Review2 (Working Procedures) identify the written 
submissions that WTO Members participating in appeals are to submit in appellate proceedings, as 
well as the deadlines and modalities for the subm ission of such documents. For many years, the 
Appellate Body has requested participants in appellate proceedings to submit executive summaries 
of their written submissions by the same deadline as for the written submissions themselves. 
These executive summaries were intended to a ssist the Appellate Body in summarizing the 
arguments of the participants in its report in each proceeding. The Appellate Body wishes to inform the WTO Membership that it is adopting new guidelines regarding executive summaries.  
The Appellate Body intends to continue the practice of asking participants in appeals to submit 
executive summaries of their written submissions. Th e deadlines for filing such summaries will also 
remain unchanged, namely, the same deadline as for the written submissions themselves. 
Nevertheless, the Appellate Body is introducing two new aspects to this practice. First, the 
Appellate Body will request not only the participants  but also each third participant that elects to 
file a written submission in an appeal to submit an executive summary of such written submission 
at the same time. Second, rather than using the executive summaries to assist in drafting its own 
description of the arguments of the participants, th e Appellate Body will instead annex to each of 
its reports the executive summaries submitted by the participants and third participants
3 in the 
relevant appellate proceedings. A similar practice has been followed with success by WTO dispute 
settlement panels for some time. This change will enable Members to ensure that their own 
positions and requests to the Appellate Body are accurately reflected, in their own words, in 
Appellate Body reports. It will also enable the Appellate Body to make optimal use of its limited 
resources, and to re-direct resources formerly used to summarize the arguments of the 
participants and third participants to other areas of appeal work.  
The Appellate Body intends to implement this approach on a trial basis, as from the next appeal. 
At present, two panel reports have been circulated and may be subject to appeal. The parties in 
these two disputes ( Peru – Agricultural Products  (WT/DS457) and China – HP-SSST (Japan) / 
China – HP-SSST (EU)  (WT/DS454 / WT/DS460)) have been informed of how the Appellate Body 
intends to treat their executive summaries in the event of an appeal. However, the Appellate Body 
also wishes to inform the WTO Membership as a whole of these developments. Accordingly, the 
remainder of this document sets out certain guidelines for executive summaries submitted in appellate proceedings. 
The guidelines seek to allow WTO Members to summarize their own positions and supporting 
arguments in their own words, while at the same time encouraging a degree of harmonization in 
the structure and length of such summaries. The Appellate Body will consider whether it would be 
                                               
1 WT/AB/23, 11 March 2015. 
2 WT/AB/WP/6, 16 August 2010. 
3 Pursuant to the Working Procedur es, third participants may elect, but are not required, to submit 
written submissions to the Appellate Body. WT/AB/26 
 
- 117 - 
 
  useful to incorporate some or all aspects of th ese guidelines into the Working Procedures once 
both the Appellate Body and Members have some experience with the guidelines now introduced on a trial basis. The Appellate Body notes that am endments to the Working Procedures will in any 
event be necessary in the near-term future on ce the Digital Dispute Settlement Registry is 
launched.
 With respect to these matters, the Appellate  Body will engage in consultations as 
required or appropriate.4 
                                               
4 With respect to amendments to the Working Procedures, Article 17.9 of the Understanding on Rules 
and Procedures Governing the Settlement of Disputes prov ides for the Appellate Body to draw up its working 
procedures in consultation with the Chair of the Disp ute Settlement Body (DSB) and the Director-General, and 
Rule 32(2) of the Working Procedures specifies that the same procedures apply in the event of amendments to 
those working procedures. The DSB has also adopted pr ocedures for consultations between the Chair of the 
DSB and WTO Members with respect to amendments to the Working Procedures. This Decision is set out in document WT/DSB/31. WT/AB/26 
 
- 118 - 
 
 ANNEX 2 
LIMITS ON THE LENGTH OF WRITTEN SUBMISSIONS 
COMMUNICATION FROM THE APPELLATE BODY1 
1  INTRODUCTION 
1. As noted in the Appellate Body's 2013 communication on its workload, the size and 
complexity of appeals have increased markedly over time.2 In the face of an increasing workload, 
the Appellate Body has, over the last few years, undertaken various efforts to continue to ensure 
both the high quality of its reports and the completion of appellate proceedings in as short a time 
as possible. These efforts include the revision of internal processes, as well as the adoption, on a trial basis, of the practice of annexing to Appellate Body reports the executive summaries of the arguments submitted by the participants and third participants.
3  
2. Several WTO Members have su ggested that setting limits on the length of written 
submissions may assist the Appellate Body in managing its increasing workload. With this in mind, the Appellate Body is considering whether, in addition to the above-mentioned efforts, adopting 
such limits could also allow for better management of WTO appellate proceedings and contribute 
to a more optimal use of the resources of the Appellate Body and of the users of the dispute 
settlement system. With this note, the Appellate Body would like to initiate further reflection and 
discussion among and with WTO Members on issues that may arise in connection with setting 
limits on the length of written submissions.  
3. This note begins by reviewing the length of written submissions in WTO appellate 
proceedings to date. Subsequently, it sets out the current guidelines regarding the length of 
submissions in WTO dispute settlement proceeding s and briefly discusses the rules and guidelines 
applied by several international adjudicative bodies regarding the length of written submissions in proceedings before these bodies. Finally, this note formulates – for reflection and discussion 
purposes only – a number of questions relating to the issues raised by setting limits on the length 
of written submissions in WTO appellate proceedings. 
4. Members are kindly invited to provide comments addressing these questions and may wish 
to post their comments in a dedicated section of the WTO Members' website at 
https://www.wto.org/abforum . Members may also wish to share their experience with limits on the 
length of written submissions in proceedings before domestic, regional, and other international 
adjudicative bodies. 
2  THE LENGTH OF WRITTEN SUBMISSI ONS IN WTO APPELLATE PROCEEDINGS 
5. This section provides an overview of the length (in words) of written submissions made to 
the WTO Appellate Body. Based on a review of participants' submissions in appellate proceedings 
between 2009 and 2015, this section sets out in formation relating to the following parameters: 
 the evolution of the length of appellants' and appellees' written submissions; and 
 the relationship between the length of the pa nel report and the length of appellants' and 
appellees' written submissions in appellate proceedings. 
6. A review of appellate proceedings between January 2009 and October 2015 demonstrates a 
significant increase in the length of the appellants' and appellees' written submissions, as 
                                               
1 JOB/AB/2, 23 October 2015. 
2 Communication from the Appellate Body, The Work load of the Appellate Body, JOB/AB/1, 30 May 
2013. 
3 See Communication from the Appellate Body, Executive Summaries of Written Submissions in 
Appellate Proceedings, WT/AB/23, 11 March 2015. WT/AB/26 
 
- 119 - 
 
  measured by the word count of those submission s. The average number of words per submission 
in the first five cases in the period considered was 26,965, and the average number of words per submission in the last five cases of this period was 34,982.
4 This represents an increase of almost 
30% in the length of the appellants' and appellees' submissions. The following charts5 illustrate 
this trend. In these charts, one data point may re present multiple appellants' and other appellants' 
submissions or multiple appellees' submissions filed in the same appellate proceeding. 
Charts 1(a) and 1(b) – The evolution of the length of participants' written submissions 
020000400006000080000100000120000
0 5 10 15 20 25 30Number of wordsTotal number of words in
appellants' and other
appellants' submissions
Linear (Total number of
words in appellants' and
other appellants'
submissions)AB-2010-1
(234108)AB-2014-1
AB-2014-2
(190251)The evolution of the length of appellants' and other appellants' submissions
Appeal 
020000400006000080000100000120000140000
0 5 10 15 20 25 30Number of wordsTotal number of words in
appellees' submissions
Linear (Total number of wordsin appellees' submissions)AB-2011-3
(171174)The evolution of the length of appellees' submissions
AB-2010-1(159345)
Appeal 
                                               
4 Over the period from January 2009 to October 2015, the average length (excluding the top two 
outliers) of appellants' and other appellants' submissions was 30,425 words and the average length of appellees' submissions was 28,875 words. 
5 Each appeal handled by the Appellate Body during the period from January 2009 to October 2015 is 
represented by one data point in the charts. The top tw o data points have been excluded in generating the 
trend line for these charts. This was done in order to account for the fact that th ere are certain exceptional 
cases (in terms of size, complexity, etc.) and to demonstrate that certain trends exist even when such exceptional cases are not taken into account. WT/AB/26 
 
- 120 - 
 
  7. The following chart shows the trend line for the ratio of the total number of words contained 
in the participants' submissions in each appeal as compared to the total number of words in the corresponding panel report. The trend line shows an increase in the ratio from 0.7 to about 1.6.  
Chart 2 – The relationship between the length of panel reports and the length of written 
submissions in appellate proceedings 
0.00.40.81.21.62.02.4
0 5 10 15 20 25 30Ratio of word count in participants' submissions 
to word count in panel reports
AppealThe relationship between the length of panel reports and the length of submissions in 
appellate proceedings 
Ratio of word count in participants'
submissions to word count in panelreport
Linear (Ratio of word count inparticipants' submissions to wordcount in panel report)AB-2014-1
AB-2014-2
(2.49)AB-2015-7
(2.71)
 
 
3  CURRENT GUIDELINES ON THE LENGTH OF WRITTEN SUBMISSIONS IN WTO DISPUTE 
SETTLEMENT 
8. As it stands, there are no mandatory limits on the length of written submissions in 
WTO appellate proceedings. The Working Procedures for Appellate Review do not provide for limits 
on the length of written submissions, and no such  limits are imposed in practice. However, in the 
standard letter communicating the working schedule to the participants and third participants, the Appellate Body requests the participants and th ird participants to ensure that their written 
submissions are concise. 
9. In addition, the Appellate Body has adopted, on  a trial basis, the practice of annexing to 
Appellate Body reports the executive summaries of  the arguments submitted by the participants 
and third participants, rather than drafting its own description of such arguments. The guidelines 
for executive summaries of written submissions in appellate proceedings provide that the maximum length of each executive summary shall be limited to the longer of 250 words or 10% of 
the total word count of the written submission itself.
6 
10. Similarly, there are no limits on the length of written submissions in WTO panel proceedings. 
However, panels often set limits on the length of executive summaries of the parties' written submissions. Working procedures for panels typi cally provide that each party shall submit an 
executive summary of the facts and arguments as presented to the panel in its written 
submissions and oral statements, and set a limit of 10-15 pages for such executive summaries. These limits may be adjusted in the light of the size of a particular case.  
                                               
6 See Communication from the Appellate Body, Executive Summaries of Written Submissions in 
Appellate Proceedings, WT/AB/23, 11 March 2015. WT/AB/26 
 
- 121 - 
 
  4  RULES AND GUIDELINES ON THE LENGTH OF WRITTEN SUBMISSIONS IN 
PROCEEDINGS BEFORE CERTAIN INTERNATIONAL ADJUDICATIVE BODIES 
11. This section surveys rules and guidelines re garding the length of written submissions 
applicable in proceedings before certain international adjudicative bodies. It is evident that rules 
and guidelines applied by other international adjudi cative bodies must be seen within the context 
of the features and particularities of the different adjudicative systems. Moreover, it is clear that 
such rules or guidelines could not simply be transposed into the particular context of the 
WTO dispute settlement system. Nonetheless, certai n elements of such rules or guidelines may 
usefully inform or inspire the discussion about limits on the length of written submissions in WTO appellate proceedings.  
12. While some international adjudicative bodies have adopted rules limiting the length of 
written submissions, others have not; instead, they encourage parties to keep their pleadings as 
concise as possible. For instance, Practice Direction III of the International Court of Justice states that "[t]he parties are strongly urged to keep the written pleadings as concise as possible, in a 
manner compatible with the full presentation of their positions."
7 Similarly, the Guidelines 
Concerning the Preparation and Presentation of Cases before the International Tribunal for the Law of the Sea also indicate that "[a] pleading should be as short as possible."
8 
13. The Rules of Procedure and Evidence of the In ternational Criminal Tribunal for the Former 
Yugoslavia (ICTY) did not initially restrict the length of written submissions; however, these rules were amended pursuant to Practice Directions issu ed by the President of the Tribunal establishing 
limitations on the length of written briefs and motions at trial and on appeal.
9 The most recent 
relevant Practice Direction, dated 16 September 2005, provides that pre-trial briefs shall not 
exceed 15,000 words and trial briefs shall not exceed 60,000 words.10 The Practice Direction also 
provides that neither the "brief of an appe llant on appeal from a final judgement of a 
Trial Chamber", nor the appellee's brief in response, shall exceed 30,000 words11, and that 
motions, responses, and replies before a Chamber shall not exceed 3,000 words.12 The Practice 
Direction further states that "a party must seek  authorization from the Chamber to exceed the 
word limits and must provide an explanation of the exceptional circumstances that necessitate the 
oversized filing."13  
14. The Regulations of the International Criminal Court (ICC) also establish limits on the length 
of written briefs and motions at trial and on appeal. In particular, Regulation 38 stipulates specific 
page limits for several different kinds of documents filed at all stages of the proceedings.14 In 
addition, specifically with regard to appeals,  Regulations 58 and 59 provide that a document 
submitted in support of an appeal, as well as the document submitted in response, shall 
not exceed 100 pages.15 In certain circumstances, the Appeals Chamber may order the appellant 
                                               
7 International Court of Justice, Practice Directions, Practice Direction III. 
8 International Tribunal for the Law of the Sea, Guidelines Concerning  the Preparation and Presentation 
of Cases Before the Tribunal, Article 2. 
9 The Rules of Procedure of the ICTY provide that "[p]roposals for amendmen t of the Rules may … be 
made in accordance with … the Practice Direction issued by the President" (United Nations, International 
Tribunal for the Prosecution of Pers ons Responsible for Serious Violations  of International Humanitarian Law 
Committed in the Territory of the former Yugoslavia since 1991 (ICTY), Rules of Procedure and Evidence , 
Case No. IT/32/Rev. 50, 8 July 2015, Rule 6(C)). 
10 ICTY , Practice Direction on the Length of Briefs and Motions , Case no. IT/184  Rev. 2, 16  September 
2005, Section (C)(3) and (C)(4). 
11 ICTY , Practice Direction on the Length of Briefs and Motions , Case no. IT/184  Rev. 2, 16  September 
2005, Section (C)(1)(a) and (b). 
12 ICTY , Practice Direction on the Length of Briefs and Motions , Case no. IT/184  Rev. 2, 16  September 
2005, Section (C)(5). 
13 ICTY , Practice Direction on the Length of Briefs and Motions , Case no. IT/184  Rev. 2, 16  September 
2005, Section (C)(7). The President of the International Criminal Tribunal for Rwanda (ICTR) issued a Practice Direction, dated 8 December 2006, that mirrors the limitations on length adopted by the ICTY. (See: International Criminal Tribunal for Rwanda, Practice Direction on the Length of Briefs and Motions on Appeal , 
Sections (B), (C)(1)(a) and (b), (C)(3), and (C)(5)). 
14 ICC, Regulations of the Court , Official documents of the International Criminal Court 
ICC-BD/01-03-11, Regulation 38(1) and (2). 
15 ICC, Regulations of the Court , Official documents of the International Criminal Court 
ICC-BD/01-03-11, Regulations 58(5) and 59(2). WT/AB/26 
 
- 122 - 
 
  to file a reply, which shall not exceed 50 pages.16 In addition, the ICC Regulations contain a clause 
that provides for the possibility of extendin g page limits in exceptional circumstances.17 
15. Finally, we note that several other international adjudicative bodies have not adopted limits 
on the length of written submissions, including the Court of Justice of the Andean Community, the 
Permanent Review Tribunal and ad hoc arbitral tribunals of Mercosur, and NAFTA panels. 
5  QUESTIONS FOR FURTHER REFLECTION AND DISCUSSION  16. This section sets out a number of questions and considerations in order to initiate reflection 
and discussion among and with WTO Members. While it seeks to cover the key questions and 
considerations that may arise in connection with setting limits on the length of written submissions, it should not be seen as an exhaustive listing of relevant questions and considerations.  
1. What would be the effects of setting limits on the length of written submissions in 
WTO appellate proceedings? 
 
17. Members may wish to consider whether setting limits on the length of written submissions 
would be useful. Would limits on the length of written submissions result in time-savings in 
resolving appeals; a reduced workload for participants, the Appellate Body, or both; and a more optimal use of resources of the Appellate Body
18 and the participants? In particular, Members may 
reflect on whether and how such limits might affect: (i) the number of issues that participants may 
choose to appeal and the number of arguments they  raise in their written submissions; (ii) the 
focus of submissions on the key issues on appeal; (iii) the quality and clarity of the participants' written submissions; and (iv) the ability of the participants to present their respective cases and 
exercise their due process rights before the Ap pellate Body. Additionally, Members may wish to 
discuss whether setting limits on the length of written submissions would likely lead to longer or shorter hearings, and whether such limits might lead to requests by the Appellate Body for 
additional written memoranda from the participants in the course of the proceedings.
19 Finally, 
Members may also wish to reflect on whether adopting mandatory limits on the length of written submissions would be appropriate in inter-go vernmental dispute settlement, or whether 
exhortatory guidelines regarding the length of their written submissions would be preferable. 
 
2. Should the same limit on length apply to all written submissions in all appeals? If not, what 
objective criteria should be used to determine the applicable limit? 
 
18. Members may wish to consider whether it would be appropriate to adopt one general limit 
on the length of all written submissions in all appeals and, if so, what this limit should be. Alternatively, if limits should be set on a case-by-case basis, Members may wish to consider 
objective criteria on the basis of which such limits should be determined, such as: (i) the length of 
the corresponding panel report; (ii) the number of di stinct claims addressed in the panel report; or 
(iii) the number of issues raised in an appeal or cross-appeal. In addition, Members may also wish 
to consider at what point in time participants would need to be informed of the applicable limit. 
With respect to the relative length of appellants' and appellees' submissions, it may be useful to discuss whether the limit that applies to the former should also apply to the latter; or whether the limit that applies to an appellee's submission should be set as a percentage of the limit that applies 
to an appellant's submission (or other appellant's submission). Members may also wish to consider 
whether, given the limited timeframe for filing appellees' submissions, it would be sufficient to 
                                               
16 ICC, Regulations of the Court , Official documents of the International Criminal Court 
ICC-BD/01-03-11, Regulation 60. 
17 See ICC, Regulations of the Court, Official documents of the International Criminal Court  
ICC-BD/01-03-11, Regulation 37. 
18 In this regard, we note that Article 17.12 of the DSU provides that "the A ppellate Body shall address 
each of the issues raised" on appeal. 
19 Rule 28 on "Written Responses" of the Working Procedures for Appellate Review. WT/AB/26 
 
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  limit only the length of the appellants' and other appellants' submissions.20 Another question might 
be how to determine limits on length in cases involving multiple appellants or other appellants, each focusing on different issues. Furthermore, Members may wish to discuss what objective criteria should be used to set limits on the length of third participants' submissions.  
3. Should rules setting limits on the length of written submissions provide for the possibility to 
request, in exceptional circumstances, an extension of such limits? 
 
19. Members may wish to consider under what exceptional circumstances extensions of limits on 
the length of written submissions might be grante d. In addition, Members may wish to reflect on 
when and how such requests to extend such lim its should be made and on the basis of what 
criteria extensions should be determined. With regard to the appellant's submission, the question arises as to when such a request should be made and when a decision should be rendered. For the 
appellee's submission, the question might arise as  to whether an extension of the limit on the 
length of the written submission could be granted where the appellant has not sought, or was denied an extension. 
                                               
20 According to Rule 22 of Working Procedures for A ppellate Review, appellees' submissions are to be 
filed within 18 days of the filing of th e Notice of Appeal (or within 13 days of the filing of an other appellant's 
submission). WT/AB/26 
 
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 ANNEX 3 
SPEECH TO THE DISPUTE SETTLEMENT BODY ON 28 OCTOBER 2015 
BY ROBERTO AZEVÊDO, DIRECTOR-GENERAL OF THE WTO 
INTRODUCTION  
Good afternoon everyone. I am pleased to have th e opportunity to address the DSB once again.  
I spoke to you here just over a year ago, about the challenges facing the WTO dispute settlement 
system and what we were doing to address them. There is no question that we have made some 
progress during the past year. But, as you well know, things are still very challenging. Many 
delegations referred to the current challenges we face at the August DSB meeting, and some of 
you have spoken to me about your concerns as well. And of course I fully understand all those 
concerns. Our dispute settlement system is highly efficient – and remains faster than other international adjudicatory systems the world over. Nevertheless, we can do better. 
So I want to talk to you today about the challenges before us, and what we can do to meet them.  ACHIEVEMENTS ON HUMAN RESOURCES SIDE SINCE LAST YEAR  
Let me first explain what has been done since I spoke to you last September.  
We continue to work under the zero nominal growth principle and caps on personnel expenditure 
and headcount. I have continued to reallocate existing resources to the legal divisions, but always 
observing these constraints that you have set. Specifically, I promised to temporarily assign two to 
three staff members from non-dispute settlement divisions to pending and upcoming disputes as lead lawyers. This was done. 
I also mentioned that I had allocated 15 addition al lawyer posts to the three dispute settlement 
divisions – and that vacancies for these posts would be announced soon after my statement. Several recruitments followed. But I have to tell yo u that it has not been easy to find the senior 
talent which is what we need most.  
As you know, this is a specialized area of practice. People with the knowledge and experience 
required to lead teams supporting WTO dispute settlement panels are hard to find. We have also 
lost out on occasion because we are not always competitive. Some attractive CVs were received but our offers were turned down because candidates preferred jobs elsewhere. Despite these 
setbacks, I have continued to shore up the resources dedicated to dispute settlement by 
reallocating several posts from other divisions. 
As I mentioned at the CBFA meeting on 23 October, a total of 19 lawyer posts ranging from 
Grade 7 through Grade 10 have been allocated as follows:  
 5 to the Appellate Body Secretariat 
 7 to Rules Division, and  
 7 to Legal Affairs Division  
In addition, 8 posts for paralegals, secretaries and an editor were put in place in the three 
divisions. Overall the number of professional posts in the three legal divisions has almost doubled 
since I took office in September 2013 – from 30 to 57 in terms of allocated posts.  
We have also restructured our Languages, Documentation and Information Management Division 
in order to be able to cope with the extra burden on translation services. We have found it more appropriate to keep this specialized type of work in-house. As demand continues to increase, we 
will need to look at recruitment in this area to build up required expertise over time. WT/AB/26 
 
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  MOVING FORWARD 
Looking ahead, I will continue doing all I can to direct available resources to the dispute 
settlement divisions. As I mentioned last year, my intention is to create overcapacity in the dispute 
settlement area. Should dispute settlement activity wane in a year or two then we will put these 
talents to work elsewhere in the Secretariat – an d bring them back if the workload in dispute 
settlement so requires. However, it seems extremely unlikely that the high volume of casework is 
just a temporary surge.  
2015 has turned out to be the busiest period on record with 30 active panels per month, on 
average. Currently, there are 19 panels or arbitr ations in the system – 12 in trade remedies, 
and 7 in all other areas, as well as 3 appeals, an d 2 arbitrations. In addition there are 11 panels in 
composition. And since I spoke to the DSB last September we have received 17 new requests for consultations. Of those 17 new requests, 11 have been in the Rules area, and 6 in Legal Affairs.  
The vast majority of disputes in recent times have thus been in the trade remedies area. They also 
include two of the largest disputes ever brough t before the system (the Aircraft disputes). 
Two robust Rules Division teams have been dedicated to those disputes for over 3 years now, 
putting a strain on Rules Division resources. And we know from experience that the Appellate Body 
will have difficulty coping with these large disputes, should they reach that level, together with 
other appeals that will be on the docket at the time.  
In assisting panels, we are currently organised so that Rules Division staff are supposed to handle 
all disputes dealing with trade remedies – specif ically: anti-dumping, subsidies, and safeguards. 
Meanwhile, Legal Affairs Division staff handle disputes in the other areas. Legal Affairs has pitched in to handle some Rules cases in the sequence they arose when they had available staff with 
relevant expertise. But this has not been sufficient to deal with the recent surge in Rules cases. We 
are therefore recruiting and developing expertise in the trade remedies area. We need to ensure 
that the dispute settlement teams will continue to receive the experienced and specialized assistance they will need, including in the ev er-expanding number of trade remedies disputes. 
Through our recent actions on resource reallocation and recruitment, we are likely to shorten the 
waiting periods for Rules cases in the current queue by several months. My aim is to have all the 
cases in the current queue underway by April next year. Whether this will be possible depends on 
several elements. And we cannot eliminate the poss ibility of having a new queue of cases between 
now and then if many new panels are established in the meantime. 
It seems inevitable that the pressures will continue to mount. It takes time to recruit and train 
new staff members, and new disputes will conti nue to be filed. We should acknowledge that 
reallocation and recruitment alone will not eliminate the challenges we are currently facing. 
Indeed, we are at the limit of what reallocation can achieve. As I said at the CBFA, Members may 
want to reflect on how we deal with this issue in the future. You have to carefully consider how much resources you want to make available for dispute settlement. 
The increased breadth and complexity of disputes over the last 20 years has changed the face of 
WTO dispute settlement completely. This is set out in more detail in the paper on current dispute 
settlement DS activity prepared by the Secretariat and provided as a room document. We are 
therefore exploring ways that will allow us to be more flexible in meeting demand as it arises – 
and your views will be central to this process.  
One idea is to develop more flexibility in staffing panels at the junior level (Grade 7s). For 
example, we could create a single pool of junior  lawyers dedicated to assist all dispute settlement 
panels – be they trade remedies or otherwise. We could draw the junior members of dispute 
settlement teams from the general pool, rather than being limited to staff from the responsible 
legal division which may not have junior staff available at the time. Let me be clear here. This does not mean that we are proposing to merge the Rule s and Legal Affairs Divisions, or necessarily to 
put senior level lawyers in the general pool. Currently we have no such plans. Our senior level 
lawyers (Grades 9s and 10s) will continue to be assigned to lead dispute teams in their areas of expertise. In other words, those with expertise in trade remedies will lead disputes in trade remedies cases, and others will lead disputes in the other areas. And the reason for this is to WT/AB/26 
 
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  preserve efficiency and consistency. We wo uld shift junior resources between Rules and 
Legal Affairs as demand arises in a particular su bject area, while preserving the expertise needed 
for each dispute. 
Now, how will this address the problem of insufficient senior level expertise? The answer is that it 
won’t, right away. But it will allow us over time to build up expertise at the mid-level, which we currently do not have. The idea is to enhance the capacity of senior lawyers. Today, each senior 
lawyer handles just one case at a time, often doing most of the drafting, besides reviewing and 
r e v i s i n g  t h e  w o r k  o f  j u n i o r  l a w y e r s .  O u r  g o a l  i s  t o  g e t  m o r e  j u n i o r  l a w y e r s  d o i n g  m o s t  o f  t h e  drafting. If we succeed with better support and assistance, 10 senior lawyers may be able to 
handle up to 20 cases in future, rather than only 10, as is the situation today. For this to happen, 
of course, we need adequate resources at all levels – junior and senior. And as I said, we are continuing to work on building up those levels. So this is one idea that might complement the actions I have taken through resource reallocation . We can continue to think about other ideas and 
I would welcome your thoughts as well. 
I have asked DDG Brauner to engage with delegations to gather views from you on improving the 
functioning of the system further, bearing in mind the budgetary constraints and headcount 
limitation imposed by members. I also encourage you to continue to actively participate in the DSU review process. This is one of the avenues available to members to make contributions in 
improving the efficiency and effectiven ess of the dispute settlement system. 
NON-DISCRIMINATION AND TRANSPARENCY 
Finally, I want to say something about non-discrimination and transparency. I have said it before – 
but let me say it again: there has not been and there will not be any favouritism. Once panels are composed, they are staffed by either the Rules or Legal Affairs Division experts – depending on the 
subject matter – and move forward by date of comp osition. If staff are unavailable, panels are set 
down in a queue – be it a trade remedies or non-trade remedies queue, again by date of composition. And they are staffed as soon as st aff members with the right level of seniority and 
experience in the relevant Division become availa ble. No one is permitted to jump the relevant 
queue. There are no exceptions. 
Turning to transparency, many of you have pointed to a need for more transparency on the status 
of the queue and on approximate "wait times" for panels to get underway. I appreciate that you 
need to be able to plan for upcoming panel work as well as to prepare your domestic constituencies appropriately. It is often difficult for the Secretariat to predict when individual 
disputes will proceed from consultations to the DSB to a request that a panel should be 
established – or how much time it will take for panel composition. 
Workload planning is also complicated at the appellate stage. It is difficult to predict exactly when 
panel reports will be ready for circulation to Memb ers, whether they will be appealed and when the 
reports will be appealed. I have been thinking what we can do to shed more light on the queue 
and expected delays despite the existing constraints. I have also discussed this with 
Ambassador Neple. And so we will do the following: 
The Secretariat will post on the WTO website two lists of panels, one with trade remedies and the 
other with non-trade remedies disputes, that have been composed and set down in a queue by date of composition. Currently, there is only one queue – for trade remedies cases. But this can change depending on future panels composed and we may have times where there are 
two queues. We will also post a list of panels th at have been established but have not yet been 
composed. And we will post relevant information about appeals as well. To be clear, this information is already available on the website. But we are going to present it in a more organized, 
user-friendly manner. 
In addition, Ambassador Neple, and his successors as DSB chair, will announce at the 
DSB meeting each month the number of disputes at panel composition stage and the ability of the 
Secretariat to meet expected demand over the comi ng period. Similar information will be provided 
about the Appellate Body's workload. This information should enable you to plan your dispute settlement activities better, and to brief your domestic constituencies more accurately. WT/AB/26 
 
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  CONCLUSION 
In conclusion, I think that, despite our current challenges, we should not forget what we have in 
the WTO's dispute settlement system. It is unquestionably one of – if not the – most active 
international adjudicatory systems in the world. And it still operates faster than any other. So 
clearly we need to work together to maintain and improve the system, and to keep it running well. 
I have limited my remarks today to what I can do to address the current challenges we face in 
dispute settlement. I intentionally avoided focusi ng on what you can do to improve the system. 
But of course, what I can do is only part of the picture. As you will see in the dispute settlement 
activity annexed to my statement, we are in a new world of disputes. You can do much more than 
I can to make the system work more expeditiously and more efficiently. I appreciate the thoughts 
that you have already shared on this issue, and I am keen to hear your ideas. As I mentioned, 
DDG Brauner will engage with you to gather your views and ideas. 
I also encourage you to provide comments on the paper recently distributed by the Appellate Body 
about limits on the length of submissions. Th ey have set up a dedicated section of the 
WTO Members’ website for this purpose. Ambassador Neple is also available to consult with you to 
find solutions. But before we open th e floor, I have one final thing to say. 
I cannot close this presentation without saluting  the lawyers and non-lawyers alike, across this 
house, who work so hard to make the dispute settlement such a source of pride for the whole organisation. I want to thank them for their commitment. That concludes my statement. 
Thank you for listening. WT/AB/26 
 
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 ANNEX 4 
MEMBERS OF THE APPELLATE BODY 
(1 JANUARY TO 31 DECEMBER 2015) 
BIOGRAPHICAL NOTES 
Ujal Singh Bhatia  (India) (2011–2019) 
Ujal Singh Bhatia was born in India on 15 Apr il 1950. He was India's Ambassador and Permanent 
Representative to the WTO from 2004 to 2010 and represented India in a number of dispute 
settlement  cases. He also served as a WTO dispute settlement panelist in 2007–2008. 
Mr Bhatia has also served as Joint Secretary in the Indian Ministry of Commerce, apart from two 
decades in Orissa State in various field and State-level administrative assignments that involved development administration and policy-making. His legal and adjudicatory experience spans over 
three decades, and focuses on domestic and inte rnational legal/jurisprudence issues, negotiation 
of trade agreements and policy issues at the bilateral, regional, and multilateral levels, as well as the implementation of trade and development po licies in the agriculture, manufacturing and 
service industries. 
Mr Bhatia has often lectured on international trade issues  and has published numerous  papers and 
articles on a wide range of trade and economic topics. He holds an MA in Economics from the 
University of Manchester and from Delhi University, as well as a BA (Hons) in Economics, also from 
Delhi University. 
Seung Wha Chang  (Korea) (2012–2016) 
Born in Korea on 1 March 1963, Seung Wha Chang is currently Professor of Law at Seoul National 
University where he teaches International Trade Law and International Arbitration. 
He has served on several WTO dispute settlement panels, including US – FSC , Canada – Aircraft 
Credits and Guarantees , and EC – Trademarks and Geographical Indications . He has also served as 
Chairman or Co-arbitrator of numerous arbitral tribunals dealing with commercial matters. Until he 
joined the Appellate Body in 2012, he had served  as a Member of the International Court of 
Arbitration. 
Professor Chang began his professional academic car eer at the Seoul National University School of 
Law in 1995. He has taught international trade law and, in particular WTO dispute settlement, at more than ten foreign law schools, including Harvard Law School, Yale Law School, Stanford Law School, New York University, Duke Law School, and Georgetown University. In 2007, Harvard Law 
School granted him an endowed visiting professorial  chair title, the Nomura Visiting Professor of 
International Financial Systems. 
In addition, Professor Chang previously served as a Seoul District Court judge, handling many 
cases involving international trade. He also practised as a foreign attorney at a leading law firm in 
Washington DC, handling international trade matters, including trade remedies and WTO-related disputes. 
Professor Chang has published many books and articles in the field of international trade law in 
i n t e r n a t i o n a l l y  r e c o g n i z e d  j o u r n a l s .  I n  a d d i t i o n ,  h e  s e r v e s  a s  an  A d v i s o r y  B o a r d  M e mb e r  o f  t he  Journal of International Economic Law  (Oxford University Press) and the Journal of International 
Dispute Settlement  (Oxford University Press). 
Professor Chang holds a Bachelor of Laws degree  (LLB) and a Master of Laws degree (LLM) from 
Seoul National University School of Law; and a Master of Laws degree (LLM) as well as a Doctorate in International Trade Law (SJD) from Harvard Law School. WT/AB/26 
 
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  Thomas R. Graham  (United States) (2011–2019) 
Tom is the former head of the international trade practice at King & Spalding, and he was the 
founder of the international trade practice at Skadden, Arps. He was one of the first US lawyers to represent respondents in trade remedy cases in various countries around the world, and he was 
among the first to bring economists, accountants, and other non-lawyer professionals into the 
international trade practices of private law firms.   
Prior to entering private practice, Tom served as Deputy General Counsel in the Office of the 
US Trade Representative. Early in his career, he was a Legal Officer of the United Nations, in 
Geneva; and a visiting professor of law and staff member of Ford Motor Company, in Caracas, Venezuela. 
Tom was the founding chairman of the American Society of International Law's Committee on 
International Economic Law, and he served as chair of the American Bar Association's 
Subcommittee on Exports. He has been a visiting professor at the University of North Carolina Law School, and an adjunct professor at the Georgetown Law Center and the American University 
Washington College of Law. He has edited books on international trade policy, and international 
trade and environment, and he has written many articles and monographs on international trade law and policy as a Guest Scholar at the Brookings Institution, and as a Senior Associate at the 
Carnegie Endowment for International Peace. He also is the co-author, with his daughter, of 
Getting Open: The Unknown Story of Bill Garrett and the Integration of College Basketball, (Simon & Schuster, Atria Books, 2006; Indiana University, paperback, 2008). 
Tom received his undergraduate degree from Indi ana University, and his J.D. from Harvard Law 
School. 
Ricardo Ramírez-Hernández  (Mexico) (2009–2017) 
Born in Mexico on 17 October 1968, Ricardo Ramírez-Hernández holds the Chair of International 
Trade Law at the Mexican National University (UNAM) in Mexico City. He was Head of the 
International Trade Practice for Latin America of an international law firm in Mexico City. His practice focused on issues related to NAFTA and trade across Latin America, including international 
trade dispute resolution. 
Prior to practicing with a law firm, Mr Ramírez-Hernández was Deputy General Counsel for Trade 
Negotiations of the Ministry of Economy in Mexico for more than a decade. In this capacity, he provided advice on trade and competition policy matters related to 11 free trade agreements 
signed by Mexico, as well as with respect to multilateral agreements, including those related to the 
WTO, the Free Trade Area of the Americas (FTAA), and the Latin American Integration Association (ALADI). 
Mr Ramírez-Hernández also represented Mexico in complex international trade litigation and 
investment arbitration proceedings. He acted as lead counsel to the Mexican government in several WTO disputes. He has al so served on NAFTA panels. 
Mr Ramírez-Hernández holds an LLM degree in International Business Law from the American 
University Washington College of Law, and a law degree from the Universidad Autónoma 
Metropolitana. WT/AB/26 
 
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  Shree Baboo Chekitan Servansing  (Mauritius) (2014–2018) 
Born in Mauritius on 22 April 1955, Shree Baboo Chekitan Servansing enjoyed a long and 
distinguished career with the Mauritian civil se rvice. From 2004 to 2012, Mr Servansing was 
Mauritius' Ambassador and Permanent Representative to the United Nations Office and other 
International Organizations in Geneva, including the WTO. During his tenure as Permanent 
Representative, he served on various Committees at the WTO, and chaired the Committees on Trade and Environment, and Trade and Developmen t. He also chaired the Work Programme on 
Small Economies, the dedicated session on Ai d-for-Trade, and the African Group, and was 
coordinator of the African Caribbean Pacific (ACP) Group. 
Mr Servansing previously worked, in various capacities, for the Mauritius Ministry of Foreign Affairs 
in Mauritius, India and Belgium. During his tenure at the Mauritius Embassy in Belgium, he was 
intensively involved in the ACP-EU negotiations leading to the Cotonou Agreement and 
subsequently in the Economic Partnership Agreement (EPA) negotiations. Mr Servansing also served as the personal representative of the Prime Minister of Mauritius on the Steering Committee 
of the New Partnership for Africa's Development (N EPAD). In this capacity he was engaged in the 
strategic formulation of Africa's flagship development framework. 
Upon retiring from civil service, Mr Servansing served as the head of the ACP-EU Programme on 
Technical Barriers to Trade in Brussels from 2012 to 2014. In this position, he was responsible for 
facilitating the building of capacity among AC P countries in order to enhance their export 
competitiveness, and improve their Quality Infrastructure to comply with technical regulations. 
Mr Servansing's experience in trade policy, trade negotiations, and the multilateral trading system 
spans three decades. He has frequently spoken on international trade issues, and has published 
numerous papers and articles in Mauritian and foreign journals on a variety of trade-related issues. 
Mr Servansing holds an M.A. from the University of Sussex, a Postgraduate Diploma in 
Foreign Affairs and International Trade from Aust ralian National University, and a B.A. (Hons.) 
from the University of Mauritius. 
Peter Van den Bossche  (Belgium) (2009–2017) 
Born in Belgium  on 31 March 1959, Peter Van den Bossche is Professor of International Economic 
Law at Maastricht University, the Netherlands. Van den Bossche is also visiting professor at the College of Europe, Bruges (since 2010); the University of Barcelona (IELPO Programme) (since 2008); and the World Trade Institute, Berne (MILE Programme) (since 2002). He is member 
of the Advisory Board of the Journal of International Economic Law, the Journal of World 
Investment and Trade and the Revista Latinoamericana de Derecho Comercial International . He is 
also member of the Advisory Board of the WTO Chairs Programme (WCP).
 
Mr Van den Bossche holds a Doctorate in Law from the European University Institute in Florence, 
an LLM from the University of Michigan Law School, and a Licence en Droit magna cum laude  from 
the University of Antwerp. From 1990 to 1992, he served as a référendaire of Advocate 
General W. van Gerven at the European Court of Justice in Luxembourg. From 1997 to 2001, 
Mr Van den Bossche was Counsellor and subsequently  Acting Director of the WTO Appellate Body 
Secretariat. In 2001, he returned to academia and from 2002 to 2009 frequently acted as a consultant to international organisations and developing countries on issues of international 
economic law. He also served on the faculty of  the Université libre de Bruxelles, Brussels, 
Belgium (2002–2009); the China-EU School of Law,  China University of Political Science and 
Law, Beijing, China (2008-2014); the Trade  Policy Training Centre in Africa (trapca), Arusha, 
Tanzania (2008 and 2013);  the Foreign Trade University, Hanoi & Ho Chi Minh City, Vietnam 
(2009 and 2011);  the Universidad San Francisco de  Quito, Ecuador (2013); and at the Law School 
of Koç University, Istanbul, Turkey (2013).
 
Mr Van den Bossche has published extensively in the field of international economic law. He is author of the book The Law and Policy of the World Trade Organization , of which the third edition 
(with Werner Zdouc) was published by Cambridge University Press in 2013.
 WT/AB/26 
 
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  Yuejiao Zhang  (China) (2008–2016) 
Yuejiao Zhang is Professor of International Economic Law at Tsinghua University and at Shantou 
University in China. She is an arbitrator at the International Chamber of Commerce (ICC) and at China's International Trade and Economic Arbitration Commission (CIETAC). She served as 
Vice-President of China's International Economic Law Society. She is also a member of the 
Advisory Board of the International Development Law Organization (IDLO). 
Professor Zhang served as a Board Director to the West African Development Bank from 2005 to 
2007. Between 1998 and 2004, she held various senior positions at the Asian Development Bank 
(ADB), including as Assistant General Counsel, Co-Chair of the Appeal Committee, and Director-General. She was the head of the ADB ex perts group on international trade and the ADB 
contact point to the WTO. Prior to this, she held several positions in government and academia in 
China, including as Director-General of Law and Treaties at the Ministry of Foreign Trade and 
Economic Cooperation (1984–1997). She participated in the preparation of China's first joint-venture law, general principles of civil law, contract law, and foreign trade law. From 1987 to 
1996, she was one of China's chief negotiators on intellectual property and was involved in the 
preparation of China's patent law, trademark law, and copyright law. She also served as the chief legal counsel for China's GATT resumption. Between 1982 and 1985, she worked as legal counsel 
at the World Bank. She was a Member of the Gove rning Council of the International Institute for 
the Unification of Private Law (UNIDROIT) from 1987 to 1999 and a Board Member of IDLO from 1988 to 1999. Professor Zhang was a member of the UNIDROIT and UNCITRAL drafting committees concerning several international trade and economic conventions, such as the General 
Principles of Commercial Contract and the International Financial Leasing Convention. 
Professor Zhang has authored several books and articles on international economic law and 
international dispute settlement. She has a BA from China High Education College, a BA from 
Rennes University, France, and an LLM from George town University. Professor Zhang also lectured 
at universities in France and in Hong Kong, Macau of China. 
* * * 
DIRECTOR OF THE APPELLATE BODY SECRETARIAT 
Werner Zdouc 
 Director of the WTO Appellate Body Secretariat since 2006, Werner Zdouc obtained a law degree 
from the University of Graz in Austria. He then went on to earn an LLM from Michigan Law School 
and a Ph.D. from the University of St Gallen in Switzerland. Dr Zdouc joined the WTO Legal Affairs Division in 1995, advised many dispute settlement panels, and conducted technical cooperation 
missions in many developing countries. He became legal counsellor at the Appellate Body 
Secretariat in 2001. In 2008-2009 he chaired the WTO Joint Advisory Committee to the Director-General. He has been a lecturer and Vi siting Professor for international trade law at 
Vienna Economic University, the Un iversities of St. Gallen, Zurich, Barcelona, Seoul, Shanghai, and 
the Geneva Graduate Institute. From 1987 to 1989, he worked for governmental and non-governmental development aid organizations in Austria and Latin America. Dr Zdouc has authored various publications on international economic law and is a member of the Trade Law 
Committee of the International Law Association. 
 WT/AB/26 
 
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 ANNEX 5 
I. FORMER APPELLATE BODY MEMBERS 
Name Nationality Term(s) of office 
Said El-Naggar Egypt  1995–2000 
Mitsuo Matsushita Japan  1995–2000 
Christopher Beeby New Zealand 1995–1999 
1999–2000 
Claus-Dieter Ehlermann Germany 1995–1997 
1997–2001 
Florentino Feliciano Philippines 1995–1997 
1997–2001 
Julio Lacarte-Muró Uruguay 1995–1997 
1997–2001 
James Bacchus United States 1995–1999 
1999–2003 
John Lockhart Australia 2001–2005 
2005–2006 
Yasuhei Taniguchi Japan 2000–2003 
2003–2007 
Merit E. Janow United States 2003–2007 
Arumugamangalam Venkatachalam Ganesan India 2000–2004 
2004–2008 
Georges Michel Abi-Saab Egypt 2000–2004 
2004–2008 
Luiz Olavo Baptista Brazil 2001–2005 
2005–2009 
Giorgio Sacerdoti Italy 2001–2005 
2005–2009 
Jennifer Hillman United States 2007–2011 
Lilia Bautista Philippines 2007–2011 
Shotaro Oshima Japan  2008–2012 
David Unterhalter South Africa 2006-2009 
2009-2013 
 WT/AB/26 
 
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  II. FORMER CHAIRPERSONS OF THE APPELLATE BODY 
Name Nationality Term(s) as Chairperson 
Julio Lacarte-Muró Urug uay 7 February 1996 – 
6 February 1997 
7 February 1997 – 
6 February 1998 
Christopher Beeby New Zealand 7 February 1998 – 
6 February 1999 
Said El-Naggar Egypt 7 February 1999 – 
6 February 2000 
Florentino Feliciano Philippines 7 February 2000 – 
6 February 2001 
Claus-Dieter Ehlermann Ge rmany 7 February 2001 – 
10 December 2001 
James Bacchus United States 15 December 2001 – 
14 December 2002 
15 December 2002 – 
10 December 2003 
Georges Abi-Saab Egypt 13 December 2003 – 
12 December 2004 
Yasuhei Taniguchi Japan 17 December 2004 –  
16 December 2005 
Arumugamangalam Venkatachalam Ganesan India 17 December 2005 –  
16 December 2006 
Giorgio Sacerdoti Italy 17 December 2006 –  
16 December 2007 
Luiz Olavo Baptista Br azil 17 December 2007 –  
16 December 2008 
David Unterhalter South Africa 18 December 2008 – 
11 December 2009 
12 December 2009 – 
16 December 2010 
Lilia Bautista Philippines 17 December 2010 –  
14 June 2011 
Jennifer Hillman United States 15 June 2011 –  
10 December 2011 
Yuejiao Zhang China 11 December 2011 –  
31 May 2012 
1 June 2012 –  
31 December 2012 
Ricardo Ramírez Hernández Mexico 1 January 2013 – 
31 December 2013 
1 January 2014 – 
31 December 2014 
Peter Van den Bossche Belgium 1 January 2015 – 
31 December 2015 
 WT/AB/26 
 
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 ANNEX 6 
APPEALS FILED: 1995–2015 
Year Notices of 
Appeal filed Notices of Appeal 
in original 
proceedings Notices of Appeal 
in Article 21.5 
proceedings 
1995   0 0 0 
1996   4 4 0 
1997   6 a 6 0 
1998   8 8 0 
1999   9 b 9 0 
2000  13 c 11 2 
2001   9 d 5 4 
2002   7 e 6 1 
2003   6 f 5 1 
2004   5 5 0 
2005  13 11 2 
2006   5 3 2 
2007   4 2 2 
2008  11 g 8 3 
2009 3 1 2 
2010 3 3 0 
2011 6 6 0 
2012 4 4 0 
2013 1 1 0 
2014 9 8 1 
2015 8 h 6 2 
Total 134 112 22 
a This number includes two Notices of Appeal that were filed at the same time in related matters, 
counted separately: EC – Hormones (Canada)  and EC – Hormones (US).  A single Appellate Body report was 
circulated in relation to those appeals. 
b This number excludes one Notice of Appeal that was withdrawn by the United States, which 
subsequently filed another Notice of Appeal  in relation to the same panel report: US – FSC . 
c This number includes two Notices of Appeal that were filed at the same time in related matters, 
counted separately: US – 1916 Act (EC)  and US – 1916 Act (Japan).  A single Appellate Body report was 
circulated in relation to those appeals. 
d This number excludes one Notice of Appeal that was withdrawn by the United States, which 
subsequently filed another Notice of Appeal  in relation to the same panel report: US – Line Pipe . 
e This number includes one Notice of Appeal that was subsequently withdrawn: India – Autos ; and 
excludes one Notice of Appeal that was withdrawn by  the European Communities, which subsequently filed 
another Notice of Appeal in rela tion to the same panel report: EC – Sardines . 
f This number excludes one Notice of Appeal that was withdrawn by the United States, which 
subsequently filed another Notice of Appeal  in relation to the same panel report: US – Softwood Lumber IV . 
g This number includes two Notices of Appeal that were filed at the same time in related matters, 
counted separately: US – Shrimp (Thailand)  and US – Customs Bond Directive.   
h This number includes two Notices of Appeal that were filed at the same time in related matters, 
counted separately: China – Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel 
Seamless Tubes ("HP-SSST") from Japan  and China – Measures Imposing Anti-Dumping Duties on High-
Performance Stainless Steel Seamless Tube s ("HP-SSST") from the European Union.   WT/AB/26 
 
- 135 - 
 
 ANNEX 7 
PERCENTAGE OF PANEL REPORTS APPEALED BY YEAR OF ADOPTION: 1995–2015  a 
 All panel reports Panel reports other than  
Article 21.5 reports b Article 21.5 
panel reports 
Year of 
adoption Panel 
reports 
adopted c Panel 
reports 
appealed d Percentage 
appealed e Panel 
reports 
adopted  Panel 
reports 
appealed Percentage 
appealed Panel 
reports 
adopted  Panel 
reports 
appealed Percentage
appealed  
1996 2 2 100% 2 2 100% 0 0 – 
1997 5 5 100% 5 5 100% 0 0 – 
1998 12 9 75% 12 9 75% 0 0 – 
1999 10 7 70% 9 7 78% 1 0 0% 
2000 19 11 58% 15 9 60% 4 2 50% 
2001 17 12 71% 13 9 69% 4 3 75% 
2002 12 6 50% 11 5 45% 1 1 100% 
2003 10 7 70% 8 5 63% 2 2 100% 
2004 8 6 75% 8 6 75% 0 0 – 
2005 20 12 60% 17 11 65% 3 1 33% 
2006 7 6 86% 4 3 75% 3 3 100% 
2007 10 5 50% 6 3 50% 4 2 50% 
2008 11 9 82% 8 6 75% 3 3 100% 
2009 8 6 75% 6 4 67% 2 2 100% 
2010 5 2 40% 5 2 40% 0 0 – 
2011 8 5 63% 8 5 63% 0 0 – 
2012 18 11 61% 18 11 61% 0 0 – 
2013 4 2 50% 4 2 50% 0 0 – 
2014 15 13 87% 13 11 85% 2 2 100% 
2015 13 8 62% 11 6 55% 2 2 100% 
Total 214 144 67% 183 121 66% 31 23 74% 
a No panel reports were adopted in 1995. 
b Under Article 21.5 of the DSU, a panel may be established to hear a "disagreement as to the existence 
or consistency with a covered agreement of measures taken to comply with the recommendations and rulings" of the DSB upon the adoption of a previous panel or Appellate Body report. 
c The panel reports in EC – Bananas III (Ecuador) , EC – Bananas III (Guatemala and Honduras) ,  
EC – Bananas III (Mexico) , and EC – Bananas III (US)  are counted as a single panel report. The panel reports 
in US – Steel Safeguards , in EC – Export Subsidies on Sugar , and in EC – Chicken Cuts , are also counted as 
single panel reports in each of those disputes.  
d Panel reports are counted as having been appealed  where they are adopted as upheld, modified, or 
reversed by an Appellate Body report. The number of panel reports appealed may differ from the number of 
Appellate Body reports because some Appellate Bo dy reports address more than one panel report. 
e Percentages are rounded to the nearest whole number. 
  
   WT/AB/26  
 
- 136 - ANNEX 8 
WTO AGREEMENTS ADDRESSED IN APPELLATE BODY REPORTS CIRCULATED THROUGH 2015 a 
Year of 
circulation DSU WTO 
Agmt GATT 
1994 Agri- 
culture SPS ATC TBT TRIMs Anti- 
Dumping  Import 
Licensing SCM Safe-
guards GATS TRIPS 
1996 0 0 2 0 0 0 0 0 0 0 0 0 0 0 
1997 4 1 5 1 0 2 0 0 0 1 1 0 1 1 
1998 7 1 4 1 2 0 0 0 1 1 0 0 0 0 
1999 7 1 6 1 1 0 0 0 0 0 2 1 0 0 
2000 8 1 7 2 0 0 0 0 2 0 5 2 1 1 
2001 7 1 3 1 0 1 1 0 4 0 1 2 0 0 
2002 8 2 4 3 0 0 1 0 1 0 3 1 1 1 
2003 4 2 3 0 1 0 0 0 4 0 1 1 0 0 
2004 2 0 5 0 0 0 0 0 2 0 1 0 0 0 
2005 9 0 5 2 0 0 0 0 2 0 4 0 1 0 
2006 5 0 3 0 0 0 0 0 3 0 2 0 0 0 
2007 5 0 2 1 0 0 0 0 2 0 1 0 0 0 
2008 8 1 9 1 2 0 0 0 3 0 3 0 0 0 
2009 3 0 4 0 0 0 0 0 3 0 0 0 1 0 
2010 1 0 0 0 1 0 0 0 0 0 0 0 0 0 
2011 7 1 6 0 0 0 0 0 1 0 2 0 0 0 
2012 9 0 7 0 0 0 4 0 1 0 2 0 0 0 
2013 0 0 2 0 0 0 0 2 0 0 2 0 0 0 
2014 6 4 7 0 0 0 2 0 0 0 3 0 0 0 
2015 7 0 7 1 0 0 2 0 3 1 0 0 0 0 
Total 107 15 91 14 7 3 10 2 32 3 33 7 5 3 
a No appeals were filed in 1995. 
 
 WT/AB/26 
 
- 137 - 
 
 ANNEX 9 
PARTICIPANTS AND THIRD PARTICIPANTS IN APPEALS: 1995–2015 
As of the end of 2015, there were 162 WTO Members, of which 74 have participated in appeals in 
which Appellate Body reports were circulated between 1996 and 2015.68 
The rules pursuant to which Members participate in appeals as appellant, other appellant, 
appellee, and third participant are described in section 5 of this Annual Report.  
I. STATISTICAL SUMMARY 
WTO Member Appellant Other 
appellant Appellee Third 
participant Total 
Antigua & 
Barbuda 0 1 1 0 2  
Argentina 3 3 6 20 32 
Australia 2 2 6 43 53  
Bahrain, 
Kingdom of 0 0 0 1 1 
Barbados 0 0 0 1 1  
Belize 0 0 0 4 4 
Benin 0 0 0 1 1  
Bolivarian 
Republic of 
Venezuela 0 0 1 6 7 
Bolivia, 
Plurinational 
State of 0 0 0 1 1  
Brazil 5 7 12 34 58 
Cameroon 0 0 0 3 3  
Canada 14 10 23 30 77 
Chad 0 0 0 2 2  
Chile 3 0 2 12 17 
China 15 4 10 45 74  
Colombia 0 0 0 22 22 
Costa Rica 1 0 0 3 4  
Côte d'Ivoire 0 0 0 4 4 
Cuba 0 0 0 4 4  
Dominica 0 0 0 4 4 
Dominican 
Republic 1 0 1 4 6  
Ecuador 0 2 2 16 20 
                                               
68 No appeals were filed and no Appe llate Body reports were circulated  in 1995, the year the Appellate 
Body was established. WT/AB/26 
 
- 138 - 
 
  WTO Member Appellant Other 
appellant Appellee Third 
participant Total 
Egypt 0 0 0 2 2  
El Salvador 0 0 0 5 5 
European Union 21 20 46 67 154  
Fiji 0 0 0 1 1 
Ghana 0 0 0 2 2  
Grenada 0 0 0 1 1 
Guatemala 1 2 2 11 16  
Guyana 0 0 0 1 1 
Honduras 0 2 2 4 8  
Hong Kong, 
China 0 0 0 8 8 
Iceland 0 0 0 2 2  
India 8 2 8 43 61 
Indonesia 0 1 1 4 6  
Israel 0 0 0 2 2 
Jamaica 0 0 0 5 5  
Japan 7 6 15 63 91 
Kazakhstan 0 0 0 0 0 
Kenya 0 0 0 1 1 
Korea 3 4 6 34 47  
Kuwait, the 
State of 0 0 0 1 1 
Madagascar 0 0 0 1 1  
Malaysia 1 0 1 0 2 
Malawi 0 0 0 1 1  
Mauritius 0 0 0 2 2 
Mexico 5 6 9 35 55  
Namibia 0 0 0 1 1 
New Zealand 0 3 6 14 23  
Nicaragua 0 0 0 4 4 
Nigeria 0 0 0 1 1  
Norway 2 1 3 28 34 
Oman 0 0 0 3 3  
Pakistan 0 0 2 3 5 
Panama 0 0 0 3 3  
Paraguay 0 0 0 5 5 
Peru 1 1 1 7 10  
Philippines 3 0 3 1 7 
Poland 0 0 1 0 1  
Russian 
Federation 0 0 0 8 8 WT/AB/26 
 
- 139 - 
 
  WTO Member Appellant Other 
appellant Appellee Third 
participant Total 
Saint Lucia 0 0 0 4 4  
Saudi Arabia, 
Kingdom of 0 0 0 13 13 
Senegal 0 0 0 1 1  
Seychelles 0 0 0 0 0 
St Kitts & Nevis 0 0 0 1 1  
St Vincent &  
the Grenadines 0 0 0 3 3 
Suriname 0 0 0 3 3  
Swaziland 0 0 0 1 1 
Switzerland 0 1 1 1 3  
Chinese Taipei 0 0 0 39 39 
Tanzania 0 0 0 1 1  
Thailand 3 2 5 22 32 
Trinidad 
& Tobago 0 0 0 1 1  
Turkey 1 0 0 16 17 
United States 36 24 80 38 178  
Viet Nam 1 0 0 7 8 
Total 137 104 256 785 1282 
 
 
 
   
II. DETAILS BY YEAR OF CIRCULATION 
1996 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Gasoline 
WT/DS2/AB/R  United States - - - Brazil 
Venezuela European 
Communities 
Norway 
Japan – Alcoholic Beverages II 
WT/DS8/AB/R, WT/DS10/AB/R 
WT/DS11/AB/R Japan United States Canada 
European 
Communities 
Japan 
United States - - - 
 WT/AB/26 
 
- 140 - 
 
  1997 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Underwear 
WT/DS24/AB/R Costa Rica - - - United States India 
Brazil – Desiccated Coconut 
WT/DS22/AB/R  Philippines Brazil Brazil 
Philippines European 
Communities 
United States 
US – Wool Shirts and Blouses  
WT/DS33/AB/R and Corr.1  India - - - United States - - - 
Canada – Periodicals 
WT/DS31/AB/R  Canada United States Canada 
United States - - - 
EC – Bananas III 
WT/DS27/AB/R  European 
Communities Ecuador 
Guatemala 
Honduras 
Mexico 
United States Ecuador 
European 
Communities 
Guatemala 
Honduras 
Mexico 
United States Belize 
Cameroon 
Colombia 
Costa Rica 
Côte d'Ivoire 
Dominica 
Dominican 
Republic 
Ghana 
Grenada 
Jamaica 
Japan 
Nicaragua 
St Lucia 
St Vincent 
& the 
Grenadines 
Senegal 
Suriname 
Venezuela 
India – Patents (US) 
WT/DS50/AB/R  India - - - United States European 
Communities WT/AB/26 
 
- 141 - 
 
  1998 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
EC – Hormones 
WT/DS26/AB/R, WT/DS48/AB/R  European 
Communities Canada 
United States Canada 
European 
Communities 
United States Australia 
New Zealand 
Norway 
Argentina – Textiles and Apparel  
WT/DS56/AB/R and Corr.1  Argentina - - - United States European 
Communities 
EC – Computer Equipment 
WT/DS62/AB/R,  
WT/DS67/AB/R WT/DS68/AB/R  European 
Communities - - - United States Japan 
EC – Poultry  
WT/DS69/AB/R  Brazil European 
Communities Brazil 
European 
Communities Thailand 
United States 
US – Shrimp  
WT/DS58/AB/R  United States - - - India 
Malaysia 
Pakistan 
Thailand Australia 
Ecuador 
European 
Communities 
Hong Kong, 
China 
Mexico 
Nigeria 
Australia – Salmon 
WT/DS18/AB/R  Australia Canada Australia 
Canada European 
Communities 
India 
Norway 
United States 
Guatemala – Cement I 
WT/DS60/AB/R  Guatemala - - - Mexico United States 
 WT/AB/26 
 
- 142 - 
 
  1999  
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
Korea – Alcoholic Beverages 
WT/DS75/AB/R, WT/DS84/AB/R  Korea - - - European 
Communities 
United States Mexico 
Japan – Agricultural Products II 
WT/DS76/AB/R  Japan United States Japan 
United States Brazil 
European 
Communities 
Brazil – Aircraft 
WT/DS46/AB/R  Brazil Canada Brazil 
Canada European 
Communities 
United States 
Canada – Aircraft 
WT/DS70/AB/R  Canada Brazil Brazil 
Canada European 
Communities 
United States 
India – Quantitative Restrictions  
WT/DS90/AB/R  India - - - United States - - - 
Canada – Dairy  
WT/DS103/AB/R, 
WT/DS113/AB/R and Corr.1  Canada - - - New Zealand 
United States - - - 
Turkey –Textiles 
WT/DS34/AB/R  Turkey - - - India Hong Kong, 
China 
Japan 
Philippines 
Chile – Alcoholic Beverages 
WT/DS87/AB/R, WT/DS110/AB/R  Chile - - - European 
Communities Mexico 
United States 
Argentina – Footwear (EC) 
WT/DS121/AB/R  Argentina European 
Communities Argentina 
European 
Communities Indonesia 
United States 
Korea – Dairy  
WT/DS98/AB/R  Korea European 
Communities Korea 
European 
Communities United States 
 WT/AB/26 
 
- 143 - 
 
  2000  
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – FSC  
WT/DS108/AB/R  United States European 
Communities European 
Communities 
United States Canada 
Japan 
US – Lead and Bismuth II 
WT/DS138/AB/R  United States - - - European 
Communities Brazil 
Mexico 
Canada – Autos 
WT/DS139/AB/R  Canada European 
Communities 
Japan Canada 
European 
Communities 
Japan Korea 
United States 
Brazil – Aircraft  
(Article 21.5 – Canada) 
WT/DS46/AB/RW  Brazil - - - Canada European 
Communities 
United States 
Canada – Aircraft 
(Article 21.5 – Brazil) 
WT/DS70/AB/RW  Brazil - - - Canada European 
Communities 
United States 
US – 1916 Act 
WT/DS136/AB/R, 
WT/DS162/AB/R  United States European 
Communities 
Japan European 
Communities 
Japan 
United States European 
Communities a 
India 
Japan b 
Mexico 
Canada – Term of Patent 
Protection 
WT/DS170/AB/R  Canada - - - United States - - - 
Korea – Various Measures on 
Beef 
WT/DS161/AB/R, 
WT/DS169/AB/R  Korea - - - Australia 
United States Canada 
New Zealand 
US – Certain EC Products  
WT/DS165/AB/R European 
Communities United States European 
Communities 
United States Dominica 
Ecuador 
India 
Jamaica 
Japan 
St Lucia 
US – Wheat Gluten 
WT/DS166/AB/R  United States European 
Communities European 
Communities 
United States Australia 
Canada 
New Zealand 
a In complaint brought by Japan. 
b In complaint brought by the European Communities. WT/AB/26 
 
- 144 - 
 
  2001 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
EC – Bed Linen 
WT/DS141/AB/R  European 
Communities India European 
Communities 
India Egypt 
Japan 
United States 
EC – Asbestos  
WT/DS135/AB/R  Canada European 
Communities Canada 
European 
Communities Brazil 
United States 
Thailand – H-Beams 
WT/DS122/AB/R  Thailand - - - Poland European 
Communities 
Japan 
United States 
US – Lamb  
WT/DS177/AB/R, 
WT/DS178/AB/R  United States Australia 
New Zealand Australia 
New Zealand 
United States European 
Communities 
US – Hot-Rolled Steel 
WT/DS184/AB/R  United States Japan Japan 
United States Brazil 
Canada 
Chile 
European 
Communities 
Korea 
US – Cotton Yarn 
WT/DS192/AB/R  United States - - - Pakistan European 
Communities 
India 
US – Shrimp 
(Article 21.5 – Malaysia) 
WT/DS58/AB/RW  Malaysia - - - United States Australia 
European 
Communities 
Hong Kong, 
China 
India 
Japan 
Mexico 
Thailand 
Mexico – Corn Syrup 
(Article 21.5 – US) 
WT/DS132/AB/RW  Mexico - - - United States European 
Communities 
Canada – Dairy 
(Article 21.5 – New Zealand 
and US) 
WT/DS103/AB/RW, 
WT/DS113/AB/RW  Canada - - - New Zealand 
United States European 
Communities 
 WT/AB/26 
 
- 145 - 
 
  2002  
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Section 211 
Appropriations Act  
WT/DS176/AB/R  European 
Communities United States European 
Communities 
United States - - - 
US – FSC (Article 21.5 – EC) 
WT/DS108/AB/RW  United States European 
Communities European 
Communities 
United States Australia 
Canada 
India 
Japan 
US – Line Pipe 
WT/DS202/AB/R  United States Korea Korea 
United States Australia 
Canada 
European 
Communities 
Japan 
Mexico 
India – Autos  c 
WT/DS146/AB/R, 
WT/DS175/AB/R India - - - European 
Communities 
United States Korea 
Chile – Price Band System  
WT/DS207/AB/R and Corr.1 Chile - - - Argentina Australia 
Brazil 
Colombia 
Ecuador 
European 
Communities 
Paraguay 
United States 
Venezuela 
EC – Sardines  
WT/DS231/AB/R  European 
Communities - - - Peru Canada 
Chile 
Ecuador 
United States 
Venezuela 
US – Carbon Steel 
WT/DS213/AB/R and Corr.1  United States European 
Communities European 
Communities 
United States Japan 
Norway 
US – Countervailing Measures on 
Certain EC Products 
WT/DS212/AB/R  United States - - - European 
Communities Brazil 
India 
Mexico 
Canada – Dairy 
(Article 21.5 – New Zealand and US II) 
WT/DS103/AB/RW2, 
WT/DS113/AB/RW2  Canada - - - New Zealand 
United States Argentina 
Australia 
European 
Communities 
c India withdrew its appeal the day before the oral hearing was scheduled to proceed. 
 WT/AB/26 
 
- 146 - 
 
 2003 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Offset Act 
(Byrd Amendment ) 
WT/DS217/AB/R, 
WT/DS234/AB/R United States - - - Australia 
Brazil 
Canada 
Chile 
European 
Communities 
India 
Indonesia 
Japan 
Korea 
Mexico 
Thailand Argentina 
Costa Rica 
Hong Kong, 
China 
Israel 
Norway 
EC – Bed Linen 
(Article 21.5 – India ) 
WT/DS141/AB/RW India - - - European 
Communities Japan 
Korea 
United States 
EC – Tube or Pipe Fittings WT/DS219/AB/R Brazil - - - European 
Communities Chile 
Japan 
Mexico 
United States 
US – Steel Safeguards 
WT/DS248/AB/R, 
WT/DS249/AB/R,  
WT/DS251/AB/R, 
WT/DS252/AB/R,  
WT/DS253/AB/R, 
WT/DS254/AB/R,  
WT/DS258/AB/R, 
WT/DS259/AB/R  United States Brazil 
China 
European 
Communities 
Japan 
Korea 
New Zealand 
Norway 
Switzerland Brazil 
China 
European 
Communities 
Japan 
Korea 
New Zealand 
Norway 
Switzerland 
United States Canada 
Cuba 
Mexico 
Chinese Taipei 
Thailand 
Turkey 
Venezuela 
Japan – Apples WT/DS245/AB/R Japan United States Japan 
United States Australia 
Brazil 
European 
Communities 
New Zealand 
Chinese Taipei 
US – Corrosion-Resistant Steel 
Sunset Review 
WT/DS244/AB/R Japan - - - United States Brazil 
Chile 
European 
Communities 
India 
Korea 
Norway 
 WT/AB/26 
 
- 147 - 
 
  2004 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Softwood Lumber IV 
WT/DS257/AB/R  United States Canada Canada 
United States European 
Communities 
India 
Japan 
EC – Tariff Preferences 
WT/DS246/AB/R  European 
Communities - - - India Bolivia 
Brazil 
Colombia 
Costa Rica 
Cuba 
Ecuador 
El Salvador 
Guatemala 
Honduras 
Mauritius 
Nicaragua 
Pakistan 
Panama 
Paraguay 
Peru 
United States 
Venezuela 
US – Softwood Lumber V 
WT/DS264/AB/R  United States Canada Canada 
United States European 
Communities 
India 
Japan 
Canada – Wheat Exports and 
Grain Imports 
WT/DS276/AB/R  United States Canada Canada 
United States Australia 
China 
European 
Communities 
Mexico 
Chinese Taipei 
US – Oil Country Tubular Goods 
Sunset Reviews 
WT/DS268/AB/R  United States Argentina Argentina 
United States European 
Communities 
Japan 
Korea 
Mexico 
Chinese Taipei 
 WT/AB/26 
 
- 148 - 
 
  2005 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Upland Cotton 
WT/DS267/AB/R  United States Brazil Brazil 
United States Argentina 
Australia 
Benin 
Canada 
Chad 
China 
European 
Communities 
India 
New Zealand 
Pakistan 
Paraguay 
Chinese Taipei 
Venezuela 
US – Gambling 
WT/DS285/AB/R and Corr.1  United States Antigua & 
Barbuda Antigua & 
Barbuda 
United States Canada 
European 
Communities 
Japan 
Mexico 
Chinese Taipei 
EC – Export Subsidies on Sugar 
WT/DS265/AB/R, 
WT/DS266/AB/R, WT/DS283/AB/R  European 
Communities Australia 
Brazil 
Thailand Australia 
Brazil 
European 
Communities 
Thailand 
 Barbados 
Belize 
Canada 
China 
Colombia 
Côte d'Ivoire 
Cuba 
Fiji 
Guyana 
India 
Jamaica 
Kenya 
Madagascar 
Malawi 
Mauritius 
New Zealand 
Paraguay 
St Kitts & 
Nevis 
Swaziland 
Tanzania 
Trinidad & 
Tobago 
United States 
 WT/AB/26 
 
- 149 - 
 
  2005 (CONT'D) 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
Dominican Republic – Import and 
Sale of Cigarettes 
WT/DS302/AB/R  Dominican 
Republic Honduras Dominican 
Republic 
Honduras China 
El Salvador 
European 
Communities 
Guatemala 
United States 
US – Countervailing Duty 
Investigation on DRAMS 
WT/DS296/AB/R  United States Korea Korea 
United States China 
European 
Communities 
Japan 
Chinese Taipei 
EC – Chicken Cuts 
WT/DS269/AB/R, 
WT/DS286/AB/R and Corr.1  European 
Communities Brazil 
Thailand Brazil 
European 
Communities 
Thailand China 
United States 
Mexico – Anti-Dumping Measures 
on Rice 
WT/DS295/AB/R  Mexico - - - United States China 
European 
Communities 
US – Anti-Dumping Measures on 
Oil Country Tubular Goods 
WT/DS282/AB/R  Mexico United States Mexico 
United States Argentina 
Canada 
China 
European 
Communities 
Japan 
Chinese Taipei 
US – Softwood Lumber IV 
(Article 21.5 – Canada) 
WT/DS257/AB/RW  United States Canada Canada 
United States China 
European 
Communities 
 WT/AB/26 
 
- 150 - 
 
  2006 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – FSC 
(Article 21.5 – EC II) 
WT/DS108/AB/RW2 United States European 
Communities European 
Communities 
United States Australia 
Brazil 
China 
Mexico ‒ Taxes on Soft Drinks 
WT/DS308/AB/R Mexico - - - United States Canada 
China 
European 
Communities 
Guatemala 
Japan 
US – Softwood Lumber VI 
(Article 21.5 – Canada) 
WT/DS277/AB/RW and Corr.1 Canada - - - United States China 
European 
Communities 
US – Zeroing (EC) 
WT/DS294/AB/R and Corr.1 European 
Communities United States United States 
European 
Communities Argentina 
Brazil 
China 
Hong Kong, 
China 
India 
Japan 
Korea 
Mexico 
Norway 
Chinese Taipei 
US – Softwood Lumber V 
(Article 21.5 – Canada) 
WT/DS264/AB/RW Canada - - - United States China 
European 
Communities 
India 
Japan 
New Zealand 
Thailand 
EC – Selected Customs Matters 
WT/DS315/AB/R United States European 
Communities European 
Communities 
United States Argentina 
Australia 
Brazil 
China 
Hong Kong, 
China 
India 
Japan 
Korea 
Chinese Taipei 
 WT/AB/26 
 
- 151 - 
 
  2007 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Zeroing (Japan) 
WT/DS322/AB/R Japan United States United States 
Japan Argentina 
China 
European 
Communities d 
Hong Kong, 
China 
India 
Korea 
Mexico 
New Zealand 
Norway 
Thailand 
US – Oil Country Tubular Goods 
Sunset Reviews 
(Article 21.5 – Argentina) 
WT/DS268/AB/RW United States Argentina Argentina 
United States China 
European 
Communities 
Japan 
Korea 
Mexico 
Chile – Price Band System 
(Article 21.5 – Argentina)  
WT/DS207/AB/RW  Chile Argentina Argentina 
Chile Australia 
Brazil 
Canada 
China 
Colombia 
European 
Communities 
Peru 
Thailand 
United States 
Japan – DRAMs (Korea) 
WT/DS336/AB/R and Corr.1 Japan Korea Korea 
Japan European 
Communities 
United States 
Brazil – Retreaded Tyres WT/DS332/AB/R European 
Communities - - - Brazil Argentina 
Australia 
China 
Cuba 
Guatemala 
Japan 
Korea 
Mexico 
Paraguay 
Chinese Taipei 
Thailand 
United States 
 d By virtue of the Treaty of Lisbon, as of 1 December 2009, "European Union" replaced and succeeded 
"European Communities". For disputes that began before the entry into force of the Treaty, the WTO dispute 
settlement reports refer to  "European Communities". WT/AB/26 
 
- 152 - 
 
  2008 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Stainless Steel (Mexico) 
WT/DS344/AB/R Mexico - - - United States Chile 
China 
European 
Communities 
Japan  
Thailand 
US – Upland Cotton 
(Article 21.5 – Brazil) 
WT/DS267/AB/RW  United States Brazil Brazil 
United States Argentina 
Australia 
Canada 
Chad 
China 
European 
Communities 
India 
Japan 
New Zealand 
Thailand 
US – Shrimp (Thailand)  
WT/DS343/AB/R  
 Thailand 
 United States 
 United States 
Thailand 
 Brazil 
Chile 
China 
European 
Communities 
India 
Japan 
Korea 
Mexico 
Viet Nam 
US – Customs Bond Directive 
WT/DS345/AB/R  
 India United States United States 
India Brazil 
China 
European 
Communities 
Japan 
Thailand 
 WT/AB/26 
 
- 153 - 
 
  2008 (CONT'D) 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Continued Suspension 
WT/DS320/AB/R 
 European 
Communities 
 United States 
 United States 
European 
Communities 
 Australia 
Brazil 
China 
India 
Mexico 
New Zealand 
Norway 
Chinese Taipei 
Canada – Continued Suspension 
WT/DS321/AB/R 
 
 European 
Communities Canada Canada 
European 
Communities Australia 
Brazil 
China 
India 
Mexico 
New Zealand 
Norway 
Chinese Taipei 
India – Additional Import Duties WT/DS360/AB/R United States India India 
United States Australia 
Chile 
European 
Communities 
Japan 
Viet Nam 
EC – Bananas III 
(Article 21.5 – Ecuador II) 
WT/DS27/AB/RW2/ECU  
and Corr.1 European 
Communities 
 Ecuador 
 
 Ecuador 
European 
Communities 
 Belize 
Brazil 
Cameroon 
Colombia 
Côte d'Ivoire 
Dominica 
Dominican 
Republic 
Ghana 
Jamaica 
Japan 
Nicaragua 
Panama 
St Lucia 
St Vincent & the 
Grenadines 
Suriname 
United States WT/AB/26 
 
- 154 - 
 
  2008 (CONT'D) 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
EC – Bananas III 
(Article 21.5 – US) 
WT/DS27/AB/RW/USA  
and Corr.1 
 European 
Communities - - - United States Belize 
Brazil 
Cameroon 
Colombia 
Côte d'Ivoire 
Dominica 
Dominican 
Republic 
Ecuador 
Jamaica 
Japan 
Mexico 
Nicaragua 
Panama St Lucia 
St Vincent &  
the Grenadines 
Suriname 
China – Auto Parts (EC) 
WT/DS339/AB/R  China - - - European 
Communities 
 Argentina 
Australia 
Brazil 
Japan 
Mexico 
Chinese Taipei 
Thailand 
China – Auto Parts (US) WT/DS340/AB/R  China - - - United States 
 Argentina 
Australia 
Brazil 
Japan 
Mexico 
Chinese Taipei 
Thailand 
China – Auto Parts (Canada) 
WT/DS342/AB/R  China - - - Canada Argentina 
Australia 
Brazil 
Japan 
Mexico 
Chinese Taipei 
Thailand 
 WT/AB/26 
 
- 155 - 
 
  2009 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Continued Zeroing 
WT/DS350/AB/R  European 
Communities United States European 
Communities 
United States Brazil 
China 
Egypt 
India 
Japan 
Korea 
Mexico 
Norway 
Chinese Taipei 
Thailand 
US – Zeroing (EC) 
(Article 21.5 – EC) 
WT/DS294/AB/RW and Corr.1 European 
Communities United States European 
Communities 
United States India 
Japan 
Korea 
Mexico 
Norway 
Chinese Taipei 
Thailand 
US – Zeroing (Japan)  
(Article 21.5 – Japan) 
WT/DS322/AB/RW United States - - - Japan China 
European 
Communities 
Hong Kong, 
China 
Korea 
Mexico 
Norway 
Chinese Taipei 
Thailand 
China – Publications and 
Audiovisual Products 
WT/DS363/AB/R China United States China 
United States Australia 
European 
Communities 
Japan 
Korea 
Chinese Taipei 
 WT/AB/26 
 
- 156 - 
 
  2010 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
Australia – Apples 
WT/DS367/AB/R Australia New Zealand New Zealand 
Australia Chile 
European Union 
Japan 
Pakistan 
Chinese Taipei 
United States 
 
  
2011 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Anti-Dumping and 
Countervailing Duties (China) 
WT/DS379/AB/R China - - -  United States Argentina 
Australia 
Bahrain 
Brazil 
Canada 
European Union 
India 
Japan 
Kuwait 
Mexico 
Norway 
Saudi Arabia 
Chinese Taipei 
Turkey 
EC and certain member States – 
Large Civil Aircraft 
WT/DS316/AB/R European 
Union United States United States 
European 
Union Australia 
Brazil 
Canada 
China 
Japan 
Korea 
Thailand – Cigarettes 
(Philippines) 
WT/DS371/AB/R Thailand - - -  Philippines Australia 
China 
European Union 
India 
Chinese Taipei 
United States 
 WT/AB/26 
 
- 157 - 
 
  2011 (CONT'D)  
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
EC – Fasteners (China) 
WT/DS397/AB/R European 
Union China China  
European 
Union Brazil 
Canada 
Chile 
Colombia 
India 
Japan 
Norway 
Chinese Taipei 
Thailand 
Turkey 
United States 
US – Tyres (China) 
WT/DS399/AB/R China - - -  United States European Union 
Japan 
Chinese Taipei 
Turkey 
Viet Nam 
Philippines – Distilled Spirits 
(European Union)  
WT/DS396/AB/R Philippines European 
Union European 
Union 
Philippines Australia 
China 
India 
Mexico 
Chinese Taipei 
Thailand 
Philippines – Distilled Spirits 
(United States)  
WT/DS403/AB/R  Philippines - - - United States Australia 
China 
Colombia 
India 
Mexico 
Chinese Taipei 
Thailand 
 WT/AB/26 
 
- 158 - 
 
  2012 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
China –  Raw Materials 
(United States) 
WT/DS394/AB/R  China United States China 
United States Argentina 
Brazil 
Canada 
Chile 
Colombia 
Ecuador 
India 
Japan 
Korea 
Norway 
Saudi Arabia 
Chinese Taipei 
Turkey 
China – Raw Materials 
(European Union) 
WT/DS395/AB/R China European 
Union China 
European 
Union Argentina 
Brazil 
Canada 
Chile 
Colombia 
Ecuador 
India 
Japan 
Korea 
Norway 
Saudi Arabia 
Chinese Taipei 
Turkey 
China – Raw Materials  
(Mexico) 
WT/DS398/AB/R China Mexico China 
Mexico Argentina 
Brazil 
Canada 
Chile 
Colombia 
Ecuador 
India 
Japan 
Korea 
Norway 
Saudi Arabia 
Chinese Taipei 
Turkey 
 
 WT/AB/26 
 
- 159 - 
 
  2012 (CONT'D) 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Large Civil Aircraft 
(2nd complaint) 
WT/DS353/AB/R European 
Union United States United States 
European 
Union Australia 
Brazil 
Canada 
China 
Japan 
Korea 
US – Clove Cigarettes 
WT/DS406/AB/R United States - - -  Indonesia Brazil 
Colombia 
Dominican 
Republic 
European Union 
Guatemala 
Mexico 
Norway 
Turkey 
US – Tuna II (Mexico) WT/DS381/AB/R United States Mexico Mexico 
United States Argentina  
Australia 
Brazil 
Canada 
China 
Ecuador 
Guatemala 
Japan 
Korea 
New Zealand 
Chinese Taipei 
Thailand 
Turkey 
Venezuela 
US – COOL (Canada) 
WT/DS384/AB/R United States Canada Canada 
United States 
 Argentina  
Australia 
Brazil 
China 
Colombia 
European Union 
Guatemala 
India 
Japan 
Korea 
New Zealand 
Peru 
Chinese Taipei 
 WT/AB/26 
 
- 160 - 
 
  2012 (CONT'D) 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – COOL (Mexico) 
WT/DS386/AB/R United States Mexico Mexico 
United States Argentina  
Australia 
Brazil 
China 
Colombia 
European Union 
Guatemala 
India 
Japan 
Korea 
New Zealand 
Peru 
Chinese Taipei 
China – GOES 
WT/DS414/AB/R China - - - United States Argentina  
European Union 
Honduras 
India 
Japan 
Korea 
Saudi Arabia 
Viet Nam 
 WT/AB/26 
 
- 161 - 
 
  2013 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
Canada – Certain Measures 
Affecting the Renewable Energy 
Generation Sector 
WT/DS412/AB/R Canada Japan Japan 
Canada  Australia 
Brazil 
China 
El Salvador 
European Union 
Honduras 
India 
Korea 
Mexico 
Norway 
Saudi Arabia 
Chinese Taipei 
United States 
Canada – Measures Relating to 
the Feed-in Tariff Program 
WT/DS426/AB/R Canada European 
Union European 
Union 
Canada Australia 
Brazil 
China 
El Salvador 
India 
Japan 
Korea 
Mexico 
Norway 
Saudi Arabia 
Chinese Taipei 
Turkey 
United States 
 WT/AB/26 
 
- 162 - 
 
  2014 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
European Communities – 
Measures Prohibiting the 
Importation and Marketing of Seal Products 
WT/DS400/AB/R Canada 
Norway European 
Union Canada 
Norway 
European 
Union  Argentina 
China 
Colombia 
Ecuador 
Iceland 
Japan 
Mexico 
Russia 
United States 
European Communities – 
Measures Prohibiting the 
Importation and Marketing of 
Seal Products  
WT/DS401/AB/R Canada 
Norway European 
Union Canada 
Norway 
European 
Union Argentina 
China 
Colombia 
Ecuador 
Iceland 
Japan 
Mexico 
Namibia 
Russia 
United States 
United States – Countervailing 
and Anti-Dumping Measures on 
Certain Products from China 
WT/DS449/AB/R and Corr.1 China United States United States 
China Australia 
Canada 
European Union  
India 
Japan 
Russia 
Turkey 
Viet Nam 
China – Measures Related to 
the Exportation of Rare Earths, 
Tungsten and Molybdenum  
WT/DS431/AB/R  United States China United States 
China Argentina 
Australia 
Brazil 
Canada 
Chinese Taipei 
Colombia 
European Union 
India 
Indonesia 
Korea 
Japan 
Norway 
Oman 
Peru 
Russia 
Saudi Arabia 
Turkey 
Viet Nam 
 WT/AB/26 
 
- 163 - 
 
  2014 (CONT'D) 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
China – Measures Related to the 
Exportation of Rare Earths, 
Tungsten and Molybdenum  
WT/DS432/AB/R  China  European 
Union Argentina 
Australia 
Brazil 
Canada 
Chinese Taipei 
Colombia 
India 
Indonesia 
Japan 
Korea 
Norway 
Oman 
Peru 
Russia 
Saudi Arabia  
Turkey 
United States 
Viet Nam 
China – Measures Related to the 
Exportation of Rare Earths, 
Tungsten and Molybdenum  
WT/DS433/AB/R  China  Japan Argentina 
Australia 
Brazil 
Canada 
Chinese Taipei 
Colombia 
India 
Indonesia 
Korea 
Norway 
Oman 
Peru 
Russia 
United States – Countervailing 
Measures on Certain Hot-Rolled Carbon Steel Flat Products from India 
WT/DS436/AB/R India United States India  
United States Australia 
Canada 
China 
European Union 
 
Saudi Arabia 
Turkey 
 WT/AB/26 
 
- 164 - 
 
  2014 (CONT'D) 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
United States – Countervailing 
Duty Measures on Certain 
Products from China 
WT/DS437/AB/R  China United States United States 
China 
 Australia 
Brazil 
Canada 
European Union 
India 
Japan 
Korea 
Norway 
Russia 
Saudi Arabia 
Turkey 
Viet Nam 
 WT/AB/26 
 
- 165 - 
 
  2015  
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
Argentina – Measures Affecting 
the Importation of Goods 
WT/DS438/AB/R Argentina European 
Union Argentina 
European 
Union Australia 
Canada 
China 
Ecuador 
Guatemala 
India 
Israel 
Korea 
Norway 
Saudi Arabia 
Chinese Taipei 
Thailand 
Turkey 
Switzerland 
United States 
Argentina – Measures Affecting 
the Importation of Goods 
WT/DS444/AB/R  Argentina  United States Australia 
Canada 
China 
Ecuador 
Guatemala 
India 
Israel 
Korea 
Norway 
Saudi Arabia 
Chinese Taipei 
Thailand 
Turkey 
Switzerland 
Argentina – Measures Affecting 
the Importation of Goods 
WT/DS445/AB/R  Argentina Japan Argentina 
Japan Australia 
Canada 
China 
Ecuador 
Guatemala 
India 
Israel 
Korea 
Norway 
Saudi Arabia 
Chinese Taipei 
Thailand 
Turkey 
Switzerland 
United States WT/AB/26 
 
- 166 - 
 
  Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
United States – Certain Country 
of Origin Labelling (COOL) 
Requirements – Recourse to 
Article 21.5 of the DSU by 
Canada and Mexico 
WT/DS384/AB/RW United States Canada Canada 
United States Australia 
Brazil 
China 
Colombia 
European Union 
Guatemala 
India 
Japan 
Korea 
New Zealand 
United States – Certain Country 
of Origin Labelling (COOL) Requirements – Recourse to Article 21.5 of the DSU by 
Canada and Mexico 
WT/DS386/AB/RW  United States Mexico Mexico 
United States Australia 
Brazil 
China 
Colombia 
European Union 
Guatemala 
India 
Japan 
Korea 
New Zealand 
United States – Anti-Dumping 
Measures on Certain Shrimp 
from Viet Nam  
WT/DS429/AB/R Viet Nam  United States China 
Ecuador 
European Union 
Japan 
Norway 
Thailand WT/AB/26 
 
- 167 - 
 
  Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
India – Measures Concerning the 
Importation of Certain Agricultural Products  
WT/DS430/AB/R India  United States Argentina 
Brazil 
China 
Colombia 
Ecuador 
European Union 
Guatemala 
Japan 
Peru – Additional Duty on Imports 
of Certain Agricultural Products  
WT/DS457/AB/R Peru Guatemala Guatemala 
Peru Argentina 
Brazil 
China 
Colombia 
Ecuador 
El Salvador 
European Union 
Honduras 
India 
Korea 
United States 
China – Measures Imposing 
Anti-Dumping Duties on 
High-Performance Stainless Steel 
Seamless Tubes ("HP-SSST") from Japan  
WT/DS454/AB/R and Add. 1  Japan China China 
Japan India 
Korea 
Russia 
Saudi Arabia 
Turkey 
United States 
China – Measures Imposing 
Anti-Dumping Duties on 
High-Performance Stainless Steel 
Seamless Tubes ("HP-SSST") from 
the European Union  
WT/DS460/AB/R and Add. 1 China European 
Union China 
European 
Union India 
Korea 
Russia 
Saudi Arabia 
Turkey 
United States 
United States – Measures 
Concerning the Importation, Marketing and Sale of Tuna and Tuna Products – Recourse to Article 21.5 of the DSU by Mexico  
WT/DS381/AB/RW United States Mexico Mexico 
United States Australia 
Canada 
China 
European Union 
Guatemala 
Japan 
Korea 
New Zealand 
Norway 
Thailand 
 
 
__________