RESTRICTED  
  
WT/DSB/M/356  
 
6 March 2015  
(15-1295)  Page: 1/19  
Dispute Settlement Body 
26 January 2015  
   
 
 MINUTES OF MEETING 
HELD IN THE CENTRE WILLIAM RAPPARD 
ON 26 JANUARY 2015 
Chairman: Mr. Fernando De Mateo (Mexico) 
Prior to the adoption of the Agenda, the item concerning the adoption of the Panel Report in the 
dispute on: "India – Measures Concerning the Importation of Certain Agricultural Products" 
(DS430) was removed from the proposed Agenda, following India's decision to appeal the Report. 
Table of Contents 
1   SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY 
THE DSB ....................................................................................................................... .... 2 
A.  United States – Section 211 Omnibus Appropriations Act of 1998: Status report by 
the United States .............................................................................................................. 2  
B.  United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan: Status report by  the United States ............................................................................ 7  
C.  United States – Section 110(5) of the US Copyright Act: Status report by the 
United States ................................................................................................................. .. 7 
D.  European Communities – Measures affect ing the approval and marketing of biotech 
products: Status report by  the European  Union ..................................................................... 7  
E.  United States – Anti-dumping measures on certain shrimp from Viet Nam: Status 
report by the Un ited States ................................................................................................ 8  
2   UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 
2000: IMPLEMENTATION OF THE RECOMME NDATIONS ADOPTED BY THE DSB ................ 9  
A.  Statements by the Eu ropean Union and Japan .................................................................. 9  
3   CHINA – CERTAIN MEASURES AFFECT ING ELECTRONIC PAYMENT SERVICES ........... 10  
A.  Statement by th e United States .................................................................................... 10 
4   THAILAND - CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE 
PHILIPPI NES ................................................................................................................. 1 0 
A.  Statement by the Philippines ........................................................................................ 10 
5   ARGENTINA – MEASURES AFFECT ING THE IMPORTATION OF GOODS ....................... 11  
A.  Report of the Appellate Bo dy and Report of the Panel ....................................................... 11 
B.  Report of the Appellate Bo dy and Report of the Panel ....................................................... 11 
C.  Report of the Appellate Bo dy and Report of the Panel ....................................................... 11 
 WT/DSB/M/356 
 
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 1  SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB 
A.  United States – Section 211 Omnibus Appropriations Act of 1998: Status report by the 
United States (WT/DS176/11/Add.145) 
 B.  United States – Anti-dumping measures on cert ain hot-rolled steel products from Japan: Status 
report by the United States (WT/DS184/15/Add.145) 
 C.  United States – Section 110(5) of the US Copyright Act: Status report by the United States (WT/DS160/24/Add.120) 
 
D.  European Communities – Measures affecting the approval and marketing of biotech products: Status report by the European Union (WT/DS291/37/Add.83) 
 
E.  United States – Anti-dumping measures on cert ain shrimp from Viet Nam: Status report by the 
United States (WT/DS404/11/Add.31) 
 
 1.1.  The Chairman noted that there were five su b-items under this Agenda item concerning status 
reports submitted by delegations pursuant to Articl e 21.6 of the DSU. He recalled that Article 21.6 
required that: "Unless the DSB decides otherw ise, the issue of implementation of the 
recommendations or rulings shall be placed on the Agenda of the DSB meeting after six months following the date of establishment of the reasonab le period of time and shall remain on the DSB's 
Agenda until the issue is resolved". He invited delegations to provide up-to-date information about 
compliance efforts and to focus on new developments, suggestions and ideas on progress towards the resolution of disputes. He also wished to remind delegations that, as provided for in Rule 27 of 
the Rules of Procedure for DSB meetings: "Representatives should make every effort to avoid the 
repetition of a full debate at each meeting on any issue that has already been fully debated in the past and on which there appears to have been no change in Members' positions already on record". With these introductory remarks, he turn ed to the first status report under this Agenda 
item. 
A.  United States – Section 211 Omnibus Appr opriations Act of 1998: Status report by 
the United States (WT/DS176/11/Add.145) 
1.2.  The Chairman drew attention to docu ment WT/DS176/11/Add.145, which contained the 
status report by the United States on progress in the implementation of the DSB's 
recommendations in the case concerning US Section 211 Omnibus Appropriations Act of 1998. 
1.3.  The representative of the United States said that his country had provided a status report in 
this dispute on 15 January 2015, in accordance with Article 21.6 of the DSU. Several bills 
introduced in the current US Congress in relation to the DSB's recommendations and rulings in this dispute would repeal Section 211. Other previously introduced legislation would modify it. The US 
Administration would continue to work on solutions to implement the DSB's recommendations and 
rulings and to resolve this matter with the EU. 
1.4.  The representative of the European Union sa id that the EU thanked the United States for its 
most recent status report and statement made at the present meeting. The EU hoped that the US 
authorities would resolve this matter very soon. 
1.5.  The representative of Cuba said that her country noted that the 145th US status report 
contained the same information as the previous reports. As a result of the lack of compliance, this 
dispute had remained under the DSB's surveillance for almost 13 years. Cuba recalled that in 1996, the Havana Club Holdings (HCH) company, established in 1993 as a joint venture between the French company Pernod Ricard and Cuba Ron S.A., had renewed for a period of 
ten years its registration of the Havana Club rum trademark in the United States. However, 
in 1997, the Bacardi company had begun to market rum in the United States using the trademark of Havana Club Holdings. In order to legalize Bacardi's operations, the US Congress had passed 
Section 211 as a legislative amendment to the bu dget bill being discussed at that time. In 
September 2000, a WTO panel had been estab lished to examine the complaint by the EU WT/DSB/M/356 
 
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  representing the interests of the Cuban-French joint venture. Subsequently, in January 2002, the 
Appellate Body had circulated its report (WT/DS176/AB/R). The Appellate Body Report had found that Section 211(a)(2) and Section 211(b) of the Omnibus Appropriations Act of 1998 violated the national and most-favoured-nation treatment obligations under the TRIPS Agreement and the Paris 
Convention for the Protection of Industrial Property. More specifically, the Appellate Body had 
found that : (i) as regards original owners and trademarks, Section 211 was inconsistent with 
Article 4 of the TRIPS Agreement; (ii) under the TRIPS Agreement, WTO Members had an 
obligation to provide protection to trade names. Consequently, various provisions of Section 211 
concerning successors-in-interest and original owners violated the principles laid down in Article 2 of the TRIPS Agreement in conjunction with Articl e 2 of the Paris Convention (1967) and Article 3 
of the TRIPS Agreement; and (iii) in rela tion to trade names, Section 211(a)(2) and 
Section 211(b) were inconsistent with Article 4 of the TRIPS Agreement. 
1.6.  The Appellate Body had recommended that the DSB request the United States to bring its 
measure, found in the report to be inconsistent wi th the TRIPS Agreement, into conformity with its 
obligations under that Agreement. Subsequent ly, in February 2002, the DSB had adopted the 
Appellate Body report. Nonetheless, Section 211 remained intact and in force. The Cuban-French joint venture had continued in vain to pursue legal action in the competent US courts. On 
21 December 2010 and 20 March 2011, Cuba had reiterated to the United States via diplomatic 
notes that the Department of State needed to intervene so that the Office of Foreign Assets Control could grant the company CUBAEXPORT the licence that would enable it to renew the Havana Club rum trademark in the United States. These efforts had also failed. Section 211 
undermined the rights of holders of Cuban trademarks and had made it possible for the Bacardi 
company to engage in the fraudulent sale of products that were not produced in Cuba, using the Havana Club trademark that manifestly indicated Cuban origin. Once again, Cuba requested an 
immediate repeal of Section 211 and an end of the adverse effects caused by the economic, 
commercial and financial blockade policy against Cuba. Cuba hoped that the United States would recognize the serious implications of its non-compliance with the DSB's decisions and the negative 
precedent that this was setting. Cuba reiterated its position that the only satisfactory solution in 
this dispute was the full repeal of Section 211. 
1.7.  The representative of Jamaica said that her country thanked Cuba, the United States and the 
EU for their statements, updates and the US status report under this Agenda item. Jamaica noted 
that the circumstances of this dispute had not changed and that no progress had been reported 
since the previous DSB meeting. As in past DS B meetings, Jamaica expressed its deep concern 
about the continued US failure to implement the DSB's recommendations adopted in 2002 in 
relation to this dispute. The US protracted failure to take the necessary steps to comply with its 
obligations under the DSU provisions was incompatible with the requirement for prompt and effective implementation of DSB's decisions. This was of particular concern in cases such as this 
where the failure to meet an obligation had a ne gative impact on the economic interest of a 
developing-country Member. Jamaica reiterated its concern about the systemic implications of any disregard for DSB decisions. Such disregard coul d undermine the overall integrity of the dispute 
settlement system, which remained a key pillar of the WTO. Jamaica had taken note of the recent 
positive developments in the bilateral relationship between Cuba and the United States and hoped 
that these developments would contribute to progre ss in this matter. Jamaica, therefore, urged the 
United States to take the required steps to promptly implement the relevant DSB's decisions. After 
more than 12 years since the adoption of the DSB's recommendations in this dispute, it was more 
than reasonable for Members to expect that this  matter would be resolved and removed from the 
DSB's Agenda. 
1.8.  The representative of Argentina said that his country thanked the United States for its status 
report. Argentina, however, regretted that the US status report did not contain any information on 
progress in this dispute. As Argentina had stated many times in the past, this lack of progress was inconsistent with the principle of prompt and effective compliance with the DSB's 
recommendations and rulings, in particular since the interests of a developing-country Member 
were concerned. Argentina supported Cuba and the EU, and urged the United States to adopt the necessary measures to finally resolve this matter. 
1.9.  The representative of the Plurinational State of Bolivia said that his country noted the positive 
developments in the relationships between the Un ited States and Cuba. Bolivia hoped that this 
would assist in resolving this situation of non-compliance by the United States. The 12 years of 
non-compliance in this dispute undermined the credibility and integrity of the multilateral trading WT/DSB/M/356 
 
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  system and affected the interests of a developing-country Member. Bolivia, once again, called on 
the United States to comply with the DSB's recommendations and rulings and to remove the restrictions imposed under Section 211. Bolivia supported the statement made by Cuba at the present meeting. 
1.10.  The representative of the Dominican Republic said that his country thanked the 
United States for its status report on the step s taken to comply with the DSB's recommendations 
and rulings in this dispute regarding the inco nsistency of Section 211 with Article 21 of the 
TRIPS Agreement. The Dominican Republic, once again, called on the United States to step up its 
internal procedures in order to comply with the DSB's recommendations and rulings. This prolonged situation of non-compliance undermined the credibility of the DSB. As stated by Jamaica and Bolivia, the Dominican Republic also hoped that the recent steps taken to improve bilateral 
relations between Cuba and the United States would quickly result in the resolution of this dispute.  
1.11.  The representative of Dominica, speaking on behalf of the OECS countries, said that the 
OECS countries thanked the United States and Cuba for their respective statements on this 
matter. The OECS countries continued to support Cuba and remained concerned about the lack of 
progress and the continued non-compliance with the DSB's rulings and recommendations in this dispute. This non-compliance was inconsistent with the requirements for prompt and effective 
implementation of decisions. The OECS countries were particularly concerned that non-compliance 
in this dispute continued to have a negative economic impact on the economy of a small developing-country Member. Small countries reli ed on having a well-functioning rules-based 
multilateral trading system, including its dispute settlement mechanism, and sought the protection 
and predictability provided under the DSU. Theref ore, this prolonged situation of non-compliance 
seriously undermined the dispute settlement system and the WTO's integrity in its capacity as the custodian of the multilateral trading system. In th at context, the OECS countries once again urged 
prompt compliance with the DSB's rulings and recommendations in order to resolve this dispute. 
Like previous speakers, the OECS countries took note of, and welcomed the recent developments in the US relations with Cuba and hoped that this wo uld lead to a prompt resolution of this dispute. 
1.12.  The representative of the Russian Federation  said that his country regretted that it had to, 
once again, express its concern about the lack of progress in this long-standing dispute. This was 
an example of non-compliance with, and disregard of, the DSB's recommendations and rulings. Russia believed that due and timely implementation  of the DSB's rulings and recommendations by 
all Members was essential for maintaining trust and credibility in the WTO system. As it had 
previously stated, Russia urged the parties to this dispute to address the outstanding issues and to resolve this dispute as soon as possible. 
1.13.  The representative of Mexico said that, as it had done in the past, his country urged the 
parties to this dispute to adopt the necessary measures to comply with the DSB's 
recommendations and rulings, in accordance with Article 21.1 of the DSU. 
1.14.  The representative of Trinidad and Tobago said that his country thanked the United States 
for its status report and Cuba for its update in this dispute. Trinidad and Tobago recalled its 
previous statement made at the DSB meeting in December 2014 under this Agenda item. Trinidad and Tobago regretted that, after almost 13 years, there had been no compliance with the 
DSB's recommendations and rulings. In that regard, Trinidad and Tobago once again referred to 
Article 21.1 of the DSU, which called for pr ompt compliance with the DSB's rulings and 
recommendations. The lack of solution in this dispute undermined the effectiveness and credibility 
of the DSB and the multilateral trading system. This would undoubtedly affect other WTO 
Members, in particular those from developing count ries such as Cuba and Trinidad and Tobago. His 
country took note of, and welcomed the recent bi lateral developments between the United States 
and Cuba and hoped that this could accelerate the resolution of this dispute. Trinidad and Tobago 
supported the call for prompt compliance with the DSB's rulings and recommendations in order to preserve the integrity of the WTO system. 
1.15.  The representative of India said that his country noted the US status report and its 
statement made at the present meeting. India shared the concern raised by other Members about 
the lack of progress in the implementation of th e DSB's recommendations in this dispute. India 
renewed its systemic concerns about the continuation of non-compliance as this undermined the 
confidence the Members reposed in a rules-ba sed system, especially in the context of a WT/DSB/M/356 
 
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  developing-country Member seeking compliance. India urged the United States to report 
compliance to the DSB in this matter. 
1.16.  The representative of China said that his country thanked the United States for its status 
report and the statement made at the present meeting. China noted that the United States had 
not reported any substantial progress. The prolonged situation of non-compliance in this dispute 
was highly inconsistent with the principle of prompt compliance required under the DSU provisions, in particular since the interests of a developing-country Member were affected. China urged the 
United States to implement the DSB's rulings and recommendations without any further delay. 
1.17.  The representative of Ecuador said that his country supported the statement made by Cuba. 
Ecuador recalled, once again, that Article 21 of the DSU referred to prompt compliance with the 
DSB's recommendations and rulings, in particular since the interests of a developing-country 
Member were affected. Ecuador hoped that the United States would step up its efforts and 
promptly comply with the DSB's rulings and recommendations. 
1.18.  The representative of the Bolivarian Repub lic of Venezuela said that her country supported 
the statement made by Cuba at the present meetin g. Venezuela shared the concerns expressed by 
many delegations that the US status report did not contain any information on progress in the implementation of the DSB's recommendations and rulings in this dispute. Venezuela underscored 
the systemic repercussions brought about by this  prolonged situation of non-compliance by the 
United States. Non-compliance in this dispute affected the interests of a developing-country 
Member and undermined the dispute settlement system. Furthermore, this non-compliance set a negative precedent. It also undermined the credibility of the WTO and the multilateral trading 
system as well as its ability to resolve disputes. Venezuela urged the United States to comply with 
the DSB's rulings and recommendations by repea ling Section 211 so as to finally resolve this 
dispute. 
1.19.  The representative of El Salvador said that her country thanked the United States for its 
status report and Cuba for its update. Like previo us speakers, El Salvador noted with concern the 
lack of compliance in this dispute, which affected the economy of a small vulnerable country. The 
non-compliance in this dispute also undermined the multilateral trading system. El Salvador noted 
that resolving this long-standing dispute would promote bilateral relations between the United States and Cuba. El Salvador urged the United States to comply with the DSB's recommendations and rulings. 
1.20.  The representative of Uruguay said that his country thanked the United States for its status 
report and encouraged the United States to comply with the DSB's recommendations and rulings 
in this dispute. Uruguay thanked Cuba for its update on this dispute, which had lasted for 
13 years. Uruguay regretted that no progress had been made in this dispute and that the 
non-compliance undermined the credibility of the WT O. Uruguay hoped that this dispute could be 
resolved as soon as possible in particular in light of the recent developments in the relations 
between the United States and Cuba. 
1.21.  The representative of Nicaragua said that his country welcomed the restoration of bilateral 
relations between Cuba and the United States and hoped that, this dispute that had lasted more 
than 10 years, could be resolved promptly. Nicaragua supported Cuba and thanked the 
United States for its status report, despite the fact that it did not report on any progress in finding 
a solution to this dispute. Nicaragua urged the United States to ensure compliance with the DSB's recommendations and rulings. 
1.22.  The representative of Zimbabwe said that his country welcomed the US status report. 
However, Zimbabwe regretted that the United St a t e s  h a d  m a d e  n o  e f f o r t s  t o  c o m p l y  w i t h  t h e  
DSB's recommendations and rulings in this di spute. The US non-compliance undermined and 
casted doubt on the effectiveness and credibility of  the DSB. In that regard, Zimbabwe reiterated 
its support for the concerns expressed by Cuba an d other delegations, and urged the United States 
to comply with the DSB's recommendations and rulings. 
1.23.  The representative of Viet Nam said that her country supported the statement made by 
Cuba. Viet Nam noted that 12 years had passed with no compliance in this dispute. Viet Nam 
urged the United States to comply with the DSB's recommendations and rulings. WT/DSB/M/356 
 
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  1.24.  The representative of Brazil said that th e statements made at the present meeting did not 
seem to convey concrete progress in this matter. Brazil hoped that the new and welcomed political 
developments between the United States and Cuba  may prove fruitful in finding an acceptable 
solution between the parties to this dispute. 
1.25.  The representative of Angola said that his country thanked the United States for its status 
report regarding Section 211. Angola regretted that there was no concrete progress in this dispute 
which had remained unresolved for 12 years. Angola was concerned that Cuba continued to be 
adversely affected by the lack of progress in th is dispute. Angola understood that each Member 
had the right to defend its interests under the WTO rules. However, defending one's interests 
should not be to the detriment of other Members. Such a situation could create a systemic precedent that could undermine the dispute settlement system, which was recognized as one of 
the main achievements of the WTO. Angola reiterated its support for Cuba and encouraged the 
parties to this dispute to find a mutual solution. Angola urged the United States to show its commitment to resolve this matter. 
1.26.  The representative of Pakistan said th at his country supported the view expressed by 
previous speakers that the rules-based system should not be undermined. Pakistan thanked the 
United States for its status report and continued to  remain optimistic that efforts would be made to 
ensure compliance with the DSB's recommendations. 
1.27.  The representative of the United States said that his country appreciated Members' 
comments noting the recent bilateral developm ents between the United States and another 
Member. However, the DSB was not the appropriate forum for discussing bilateral relations 
between Members generally. The United States reminded Members that the parties to this dispute 
were the United States and the EU. That said, the United States understood that some Members may have questions about this issue, and as it had stated when this issue came up in the TPR, the 
United States looked forward to answering Members' questions about this matter in the 
appropriate forum in the months ahead. Additionally, the United States said it would like to respond to the concerns expressed by Members abou t the systemic implications of this dispute on 
the system. The facts simply did not justify such systemic concerns. The United States had come 
into compliance, fully and promptly, in the vast majority of its disputes. In fact, the United States had announced the resolution of other disputes at recent DSB meetings. As for the remaining few instances where it had not yet been entirely successful, the United States had been working 
actively towards resolving such matters, and wo uld continue to work to implement the DSB's 
recommendations and rulings in this dispute. 
1.28.  The representative of Cuba said that, in response to the US statement, her delegation 
wished to refer to three issues. First, the non-compliance by the United States in this dispute had 
systemic implications and affected the credibility of the WTO. As stipulated in Article 3 of the DSU, the dispute settlement system was an essential elem ent in providing security and predictability to 
the multilateral trading system. That security and predictability would be undermined if a Member 
did not comply, as was the case of the United States in this dispute. Second, the multilateral trading system, which was a rules-based system, had to be respected by all Members. Cuba did not agree with the statement made by the United States that it had complied with the vast 
majority of the DSB's recommendations. The United States had to comply with all the DSB's 
recommendations and rulings. As stated by the United States, this was a dispute between the United States and the EU. However, the economic interests of a small developing-country Member, 
namely Cuba, were affected in this dispute. The main obstacle to improving the bilateral relations 
between Cuba and the United States continued to be the economic, trade and financial embargo imposed by the United States on Cuba. Section 211 was part of this policy. Finally Cuba thanked 
all the delegations who made statements at the present meeting and supported Cuba on this 
matter. 
1.29.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. WT/DSB/M/356 
 
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  B.  United States – Anti-dumping measures  on certain hot-rolled steel products from 
Japan: Status report by the Un ited States (WT/DS184/15/Add.145) 
1.30.  The Chairman drew attention to document WT/DS184/15/Add.145, which contained the 
status report by the United States on progress in the implementation of the DSB's 
recommendations in the case concerning US anti-dumping measures on certain hot-rolled steel 
products from Japan. 
1.31.  The representative of the United States said that his country had provided a status report in 
this dispute on 15 January 2015, in accordance wi th Article 21.6 of the DSU. The United States 
had addressed the DSB's recommendations and rulings with respect to the calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty investigation at issue. With respect to the recommendations and rulings of the DS B that had yet to be addressed, the US 
Administration would work with the US Congress with respect to appropriate statutory measures 
that would resolve this matter. 
1.32.  The representative of Japan said that his country thanked the United States for its 
statement and status report submitted on 15 January  2015. Japan, once again, requested that this 
remaining issue should be resolved as soon as possible. 
1.33.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. C.  United States – Section 110(5) of the US Copyright Act: Status report by the 
United States (WT/DS160/24/Add.120) 
1.34.  The Chairman drew attention to document WT/DS160/24/Add.120, which contained the 
status report by the United States on progress in the implementation of the DSB's 
recommendations in the case concerning Section 110(5) of the US Copyright Act. 
1.35.  The representative of the United States said that his country had provided a status report in 
this dispute on 15 January 2015, in accordan ce with Article 21.6 of the DSU. The US 
Administration would continue to confer with the European Union, and to work closely with the US Congress, in order to reach a mutually satisfactory resolution of this matter. 
1.36.  The representative of the European Union said that the EU thanked the United States for the 
status report and its statement made at the pr esent meeting. The EU referred to its previous 
statements made under this Agenda item. The EU wished to resolve this case as soon as possible. 
1.37.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. D.  European Communities – Measures affect ing the approval and marketing of biotech 
products: Status report by the Eu ropean Union (WT/DS291/37/Add.83) 
1.38.  The Chairman drew attention to document WT/DS291/37/Add.83, which contained the 
status report by the European Union on pr ogress in the implementation of the DSB's 
recommendations in the case concerning measures affecting the approval and marketing of 
biotech products. 
1.39.  The representative of the European Union said that, in recent DSB meetings, the EU had 
already reported on authorisation decisions and other actions towards approval decisions taken up 
to December 2014. The EU recalled that the EU St anding Committee on plants, animals, food and 
feed of 9 December 2014 had voted on a draft decision for authorisation of soybean for food and 
feed use. The committee had rendered no opinion. The European Commission would present this draft decision to the Appeal Committee on 6 Febr uary 2015. As stated many times before, the EU 
recalled that the EU approval system was not co vered by the DSB's recommendations and rulings. 
The GMO regulatory regime experienced some hiccups in the past months, but the EU was confident that the situation would be clarified in the near future. WT/DSB/M/356 
 
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  1.40.  The representative of the United States said that his country thanked the EU for its status 
report and its statement made at the present meet ing. The EU measures affecting the approval of 
biotech products were seriously disrupting trade in  agricultural products between the United States 
and the EU. The EU had failed to approve a single new biotech product in 2014. Furthermore, 
based on public statements by EU  officials, it appeared that the EU had decided not to make any 
further approvals until the EU conducted yet another re-examination of EU biotech approval measures. The United States failed to see how a re-examination of existing approval measures 
could provide a scientific basis for not making biotech product approvals. Indeed, many of the 
long-pending products had successfully passed co mprehensive safety assessments by the EU's 
scientific authority. The United States was also co ncerned by biotech legislation recently approved 
by the European Parliament. According to reports, the legislation would allow individual EU 
member states to ban or restrict biotech produc ts approved at the EU-level, even where the EU 
member state had no scientific basis for doing so. The United States urged the EU to address these matters. 
1.41.  The representative of the European Union said that the aim of the Commission proposal as 
discussed in the legislative process was to facilitate decision-making on GMOs for cultivation in the 
EU. Should the text be adopted as expected in March/April 2015, it would allow an individual 
Member State to request the applicant to remove part of or all its territory from the geographical 
scope of the application (Option 1). When a Member State had not made a request under Option 1, or when the applicant had not adjusted the scope of the application, after authorisation 
the relevant Member State could adopt a national measure to restrict or ban the cultivation of the 
concerned GMOs, or of a group of GMOs defined by  crops or traits, on its territory (Option 2, 
so-called "opt out" measure). The reasons for opting out must be other than health risk or environmental risk as assessed by the European Food and Safety Authority. Member States must 
respect the international commitments, notably the WTO commitments when justifying their 
reasons for an opt-out. Thus, the proposal would not affect the core features of the authorisation system for GMOs' cultivation. In particular, the ri sk assessment done by the European Food Safety 
Authority would remain unchanged. 
1.42.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. E.  United States – Anti-dumping measures on certain shrimp from Viet Nam: Status 
report by the United States (WT/DS404/11/Add.31) 
1.43.  The Chairman drew attention to document WT/DS404/11/Add.31, which contained the 
status report by the United States on progress in the implementation of the DSB's 
recommendations in the case concerning US an ti-dumping measures on certain shrimp from 
Viet Nam. 
1.44.  The representative of the United States said that his country had provided a status report in 
this dispute on 15 January 2015, in accordance with Article 21.6 of the DSU. As the United States 
had noted at past DSB meetings, in February 2012 the US Department of Commerce had modified its procedures in a manner that addressed certain findings in this dispute. The United States would continue to consult with interested parties as it worked to address the other recommendations and 
rulings of the DSB. 
1.45.  The representative of Viet Nam said that her country thanked the United States for its 
status report. Viet Nam requested the United States to comply with the DSB's recommendations 
and rulings as soon as possible. As the United States had stated that it would continue to consult 
with interested parties as it worked to address the DSB's recommendations and rulings, Viet Nam hoped that those consultations would be held soon and that the parties to the dispute would find 
an appropriate solution to address this issue in order to ensure the effectiveness of the system. 
1.46.  The representative of Cuba said that he r country wished to reiterate the importance of 
effective compliance in particular since the interests of a developing-country Member, Viet Nam, 
were affected by non-compliance with the DSB' s rulings and recommendations. Cuba noted that 
the US status report did not report on any significant progress. Cuba urged the United States to 
fully comply with their commitments in this dispute. WT/DSB/M/356 
 
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  1.47.  The representative of the Bolivarian Repub lic of Venezuela said that her country supported 
the statement made by Viet Nam. Venezuela emphasized the need for prompt and effective 
compliance with the DSB's rulings and recommendations, and urged the United States to promptly resolve this matter. 
1.48.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
2  UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: 
IMPLEMENTATION OF THE RECOMME NDATIONS ADOPTE D BY THE DSB 
A.  Statements by the European Union and Japan 2.1.  The Chairman said that this item was on th e Agenda of the present meeting at the request of 
the European Union and Japan. He then invited the respective representatives to speak. 
2.2.  The representative of the European Unio n said that, once again, the EU requested the 
United States to stop transferring anti-dumping and countervailing duties to the US industry. Every 
disbursement that still took place was clearly an act of non-compliance with the DSB's 
recommendations and rulings. The EU renewed its call on the United States to abide by its clear 
obligation under Article 21.6 of the DSU to submit status reports in this dispute. 
2.3.  The representative of Japan said that since the distributions under the CDSOA had been 
continuing, Japan, once again, urged the United Stat es to stop the illegal distributions in order to 
resolve this long standing dispute. As it had st ated at previous DSB meetings, Japan was of the 
view that the United States was under obligation to provide the DSB with a status report in this dispute, in accordance with Article 21.6 of the DSU. 
2.4.  The representative of India said that his country shared the concerns of the EU and Japan. 
The WTO inconsistent disbursements continued unabated to the US domestic industry. The latest 
data available1 in the CDSOA Annual Report of the US Customs and Border Protection for the fiscal 
year 2014 indicated that about US$70 million were disbursed to the US domestic industry. India 
agreed with the EU and Japan that the Byrd Amendment should continue to remain subject to the DSB's surveillance until the United States ceased to administer it. 
2.5.  The representative of Brazil said that hi s country thanked the EU and Japan for keeping this 
item on the DSB's Agenda. Brazil said that in these disputes one Member claimed compliance while 
maintaining disbursements after the repeal of th e Byrd Amendment Act. Disbursements linked to 
investigations initiated before that repeal coul d not constitute compliance. In that regard, the 
obligation to submit status reports in this dispute remained. 
2.6.  The representative of Canada said that his country thanked the EU and Japan for having once 
again put this item on the DSB's Agenda. Canada shared the view that the Byrd Amendment would 
and should be subject to the DSB's surveillance until the United States complied with its 
obligations. 
2.7.  The representative of the United States said that, as his country had noted at previous DSB 
meetings, the Deficit Reduction Act, which included a provision repealing the Continued Dumping 
and Subsidy Offset Act of 2000, was enacted into law in February 2006. Accordingly, the United States had taken all actions necessary to implement the DSB's recommendations and rulings in these disputes. The United States recalled, furthermore, that the EU, Japan, and other 
Members had acknowledged that the Deficit Reductio n Act did not permit the distribution of duties 
collected on goods entered after 1 October 2007, which was over seven years ago. The United States, therefore, did not understand the purpose for which the EU and Japan had inscribed 
this item on the Agenda of the present meeting.  With respect to the comments regarding further 
status reports in this matter, as it had already explained at previous DSB meetings, the United States failed to see what purpose would be served by further submission of status reports 
which would repeat, again, that the United States had taken all actions necessary to implement 
                                               
1 See: http://www.cbp.gov/site s/default/files/docu ments/FY2014%20Annual%20Report%20wHolds.pdf 
 WT/DSB/M/356 
 
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  the DSB's recommendations and rulings in these disputes. Indeed, as these very WTO Members 
had demonstrated repeatedly when they were responding parties in disputes, there was no obligation under the DSU to provide further status reports once a Member announced that it had implemented those DSB recommendations and rulings, regardless of whether the complaining 
party disagreed about compliance. In fact, one Member that used to call for status reports under 
t h i s  A g e n d a  i t e m  w a s  n o t  c u r r e n t l y  s u p p l y i n g  s u c h  r e p o r t s  i n  a n o t h e r  m a t t e r  t o  b e  c o n s i d e r e d  under Agenda item 4, giving its position as having taken all actions necessary to comply. 
2.8.  The DSB took note of the statements. 
3  CHINA – CERTAIN MEASURES AFFECTING ELECTRONIC PAYMENT SERVICES 
A.  Statement by the United States 3.1.  The Chairman said that this item was on th e Agenda of the present meeting at the request of 
the United States. He then invited the representative of the United States to speak. 
3.2.  The representative of the United States said that his country continued to have serious 
concerns that China had failed to bring its measures into conformity with its WTO obligations. The 
situation unfortunately had not changed since the United States had first begun raising this matter 
in the DSB and despite repeated interactions between the United States and China. China continued to maintain a ban on foreign suppliers of electronic payment services ("EPS") by 
imposing a licensing requirement on them, while at the same time providing no procedures to 
obtain that license. As a result, an enterprise located in China remained the only EPS supplier that could operate in China's domestic market. To comply with its WTO obligations, and despite China's assertions in previous DSB statements, China must adopt the regulations necessary for allowing 
foreign suppliers to operate in China. The United St ates took note of the statement last October by 
China's State Council that China would open the EPS market to qualified suppliers. Three months had now passed since the State Council announced its decision, and once again, the United States 
was waiting. The United States looked forward to  prompt issuance of the regulations needed to 
follow through on the announcement that was made by the State Council. 
3.3.  The representative of China said that his country regretted that the United States had, once 
again, brought this matter before the DSB. China referred to its statements made under this 
Agenda item at previous DSB meetings. China had taken all necessary actions and had fully implemented the DSB's recommendations and rulings in this dispute. China had also further explained that the actions being sought by the Un ited States were beyond the scope of China's 
compliance obligations. China hoped that the United States would reconsider the systemic 
implications of its position. 
3.4.  The DSB took note of the statements. 
4  THAILAND - CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE 
PHILIPPINES 
A.  Statement by the Philippines 
4.1.  The Chairman said that this item was on th e Agenda of the present meeting at the request of 
the Philippines. He then invited the repr esentative of the Philippines to speak. 
4.2.  The representative of the Philippines said that, as her country had indicated in its statement 
made at the previous regular DSB meeting, the Philippines' resolution for 2015 was to resolve this 
dispute. The outstanding compliance issues, which were well known to the DSB, were important 
not only for the concerned importer, but also from a systemic point of view. To recall just one of the compliance matters of systemic importance that remained outstanding in this dispute, the Thai 
Attorney General had recently confirmed the decision to prosecute an importer of Philippine 
cigarettes for alleged under-declaration of customs value, threatening the imprisonment of 11 accused current and former employ ees and the existence of the impo rter itself. As the Philippines 
had noted, the WTO panel had ruled that Thailand enjoyed no legitimate grounds to reject the 
customs values that Thailand now sought to criminalize. In addition, Thai Customs' Board of Appeals had explicitly accepted those customs values, in a ruling heralded by Thailand itself as a WT/DSB/M/356 
 
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  measure taken to comply. The authority and credibility of the dispute settlement system was at 
stake if Members understood their obligation to implement the DSB's recommendations and rulings only as an invitation to adopt a measure ostensibly achieving compliance, only to introduce new methods and measures that restored the same WTO-inconsistent results. Trade was neither secure 
nor predictable if Members' commitment to achieving compliance was not "substantive", that is, if 
it was not real. This was the moment for Thailand to prove that its commitment to compliance was real and to rise to its role as a responsible and important WTO Member. As stated at the 
December 2014 DSB meeting, in 2015 the Philippines would like to see its ASEAN neighbour in this 
role, and to work together to resolve the disp ute outside formal dispute settlement proceedings. 
However, if that was not possible, the Philippines would resort to its rights under the DSU. 
4.3.  The representative of Thailand said that hi s country took note of the Philippines' statement 
made at the present meeting. As stated in its previous status reports and at the DSB meetings, 
Thailand had taken all actions necessary to implement the DSB's recommendations and rulings in this dispute. This was without prejudice to an y other rights of the Philippines under the DSU 
provisions. Thailand reiterated that it had been and remained, available to discuss the specific 
concerns of the Philippines bilaterally, including those not addressed by the DSB's recommendations and rulings. 
4.4.  The DSB took note of the statements. 
5  ARGENTINA – MEASURES AFFECT ING THE IMPORTATION OF GOODS 
A.  Report of the Appellate Body (W T/DS438/AB/R) and Report of the Panel 
(WT/DS438/R and WT/DS438/R/Add.1) 
B.  Report of the Appellate Body (W T/DS444/AB/R) and Report of the Panel 
(WT/DS444/R and WT/DS444/R/Add.1) 
C.  Report of the Appellate Body (W T/DS445/AB/R) and Report of the Panel 
(WT/DS445/R and WT/DS445/R/Add.1) 
5.1.  The Chairman proposed that the three sub- items under Agenda item 5 be taken up together. 
He drew attention to the communication from the Appellate Body contained in documents 
WT/DS438/19 – WT/DS444/19 – WT/DS445/20 transmitting the Appellate Body Reports on: 
"Argentina – Measures Affecting the Importation of Goods", which had been circulated on 15 January 2015 in documents WT/DS438/AB/R – WT/DS444/AB/R – WT/DS445/AB/R. He reminded delegations that the Appellate Body Re ports and the Panel Reports pertaining to these 
disputes had been circulated as unrestricted documents. As Members were aware, Article 17.14 of 
the DSU required that: "An Appellate Body report shall be adopted by the DSB and unconditionally accepted by the parties to the dispute unless the DSB decides by consensus not to adopt the 
Appellate Body report within 30 days following its circulation to Members. This adoption procedure 
is without prejudice to the right of Members to ex press their views on an Appellate Body report". 
5.2.  The representative of the European Union said that the EU thanked members of the Appellate 
Body, the Panel and the respective Secretariats fo r their work in this case. The EU welcomed the 
outcome of this dispute. The rulings of the Panel and of the Appellate Body had vindicated all the 
main claims advanced by the EU and its co-complainants, Japan and the United States, with respect to the import restrictive measures adopted by Argentina. The verdict was clear. Argentina 
had acted illegally under WTO law by forcing on local importers or foreign firms the respect of 
various trade-related requirements (TRRs) as a condition for importing goods into the country. Furthermore, Argentina had acted illegally under WTO law by devising the Advance Sworn Import 
Declaration (DJAI) procedure, which since February 2012, required firms to secure the approval by 
its authorities before importing goods. The implications of the rulings were also clear. Argentina should no longer require importers to offset the value of their imports with equivalent exports, to 
limit their imports in volume or in value, to use certain amount of Argentine content in their 
products, to invest in Argentina and/or keep their profits there, as a condition or conditions to engage in the importation of goods into that country. Argentina should also refrain from requiring importers to secure an approval for their import s. The Appellate Body had confirmed the Panel's 
findings that Argentina's imposition of trade-re lated requirements operated as a single measure WT/DSB/M/356 
 
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  which constituted a restriction on the importation of goods inconsistent with Article XI:1 and 
Article III:4 of the GATT 1994. 
5.3.  The EU also noted that the Appellate Body  had left unchanged the Panel's finding that the 
content of the single measure consisted of the co mbined operation of the individual trade-related 
requirements as one of the tools that Argentina used to implement the "managed trade" policy. 
Furthermore, it had confirmed the finding that the TRRs would continue to be imposed "until and unless the policy is repealed or modified". The EU was pleased that the Appellate Body had upheld 
the EU's cross-appeal and had considered that the 23 instances of application of the trade-related 
restrictions were identified as "specific measures at issue" in a manner that was sufficiently precise as to conform to the requirements of Article 6.2 of the DSU and were thus within the Panel's terms 
of reference. With respect to the DJAI proced ure, the Appellate Body had left untouched the 
Panel's findings that such procedure: (i) hindered access to the Argentinian market; (ii) created 
uncertainties on the ability to import; (iii) conditioned the ability of the importers to import as much as they wished; (iv) burdened importers in  a way disconnected from their normal importing 
activity; and (v) that in view of all this it had a limiting effect on the importation of goods into 
Argentina and was, hence, inconsistent with Ar ticle XI:1 of the GATT 1994. In light of such 
clear-cut findings of the Appellate Body and the Panel, the EU hoped that Argentina would 
promptly take the necessary steps to comply with all the recommendations and rulings to be 
adopted at the present meeting. 
5.4.  The representative of the United States said that his country thanked the Panel, the Appellate 
Body, and the Secretariat staff assisting them for thei r hard work in this dispute. The United States 
also thanked its co-complainants, the European Un ion and Japan, for the very close and fruitful 
collaboration throughout this process. The adopti on of the Panel and Appellate Body Reports by 
the DSB at the present meeting would bring to a close this chapter of a dispute that had taken 
more than two years to reach this point. In fact, the United States and other Members had sought 
for many years prior to that to resolve through dialogue their concerns with Argentina. With the adoption of these Reports, it was the US desi re and expectation that the parties could work 
together to achieve a resolution of this matter that would bring Argentina's import licensing 
measures into compliance with WTO rules. The United States said that it would briefly recall the nature of the measures involved in this dispute, given the importance of the findings by the panel and Appellate Body. First, the United States, together with its co-complainants, had alleged that 
Argentina had imposed a non-automatic, non-transparent, and highly discretionary import 
licensing system, the DJAI,
2 that restricted imports in contravention of numerous provisions of the 
GATT 1994 and the Import Licensing Agreement. The Panel had focused its analysis on Article XI 
of the GATT 1994, and had found this measure to be an import restriction that breached 
Argentina's Article XI obligations. The Appellate Body had now rejected Argentina's appeals and had affirmed the Panel's findings entirely. In so doing, both the Panel and Appellate Body had 
soundly rejected Argentina's arguments that Arti cle VIII of the GATT 1994, which set out hortatory 
provisions relating to customs formalities, served as an exception to Article XI. There was no textual basis for this argument, and the Appellate  Body had rightly pointed to a number of other 
provisions in the GATT 1994 explicitly setting out exceptions from the obligations in Article XI as 
relevant context. Thus, to the extent obligations in both Articles may apply to the DJAI, they would 
apply cumulatively. The Panel and the Appellate Body had agreed with the co-complainants that the DJAI had a limiting effect on imports through its discretionary, non-automatic nature, the 
uncertainty it created for traders, its imposition of export criteria, and the burdens it placed on 
importers.
3 To come into conformity with WTO rules, Argentina would need to reform these 
aspects of any licensing system it applied. 
5.5.  The United States and its co-complainants had also challenged an unwritten measure 
imposed by Argentina consisting of restrictive trade-related requirements on importers4, often as a 
condition for giving import authorization under th e DJAI. The Panel and Appellate Body had agreed 
that the complainants had demonstrated the existe nce of this measure, undertaken in pursuit of a 
policy of so-called "managed trade" or import substitution set out by high-level government 
officials, and that this unwritten measure itself had also breached Article XI of the GATT 1994. Continued imposition of these restrictions on importers would therefore not be consistent with 
WTO rules. Although this was not the first time an unwritten measure had been challenged in WTO 
                                               
2 Declaración Jurada Anti cipada de Importación. 
3 Panel Report, paragraph 6.474; Appellate Body Report, paragraphs 5.284-5.285. 
4 Panel Report, paragraph 6.221; Appell ate Body Report, paragraphs 4.5-4.11. WT/DSB/M/356 
 
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  dispute settlement, the occurrences were relatively rare. The United States applauded the Panel's 
careful and very detailed treatment of the substa ntial evidence advanced by the co-complainants 
to demonstrate the existence of this measure,  which spanned dozens of pages of the panel 
report.5 Against this overwhelming evidence, Argentina had sought to assert what might be 
described as a "technical" defence to try to sh ield its unwritten measure from challenge. In 
particular, Argentina had attempted to invoke the Appellate Body's articulation of the elements 
needed for an "as such" challenge to an alleged "methodology" measure in a different dispute and 
apply that here to an entirely different type of measure. Both the Panel and Appellate Body had 
rightfully rejected that effort. In that regard, the United States drew Members' attention to the 
Appellate Body's clear and common sense explanat ion that not every measure would be of the 
same nature, and that what was required of a complainant was to bring forward sufficient evidence 
to demonstrate the existence of the measure complained against.6 The Appellate Body had also 
rejected the notion that every challenge to a measure that may continue to exist until withdrawn must be framed as an "as such" challenge or that such a measure must be shown to have 
"general" or "prosp ective" application.
7 To have introduced such requirements, particularly in the 
context of a challenge to an unwritten measure, would have run the risk of shielding from WTO 
scrutiny and disciplines certain acts by Members, such as decisions not reduced to accessible legal 
instruments. Thus, in substance, the United States was pleased with the high-quality Reports 
produced by the Panel and the Appellate Body in this dispute, which the United States expected 
would contribute importantly to achieving a solution to this matter. The United States also noted that this dispute involved a number of import licensing matters of concern to Members, and these 
Reports should serve as important referenc es for Members applying such measures. 
5.6.  The United States also wished to touch briefly on a regrettably familiar procedural matter. 
The United States noted that, for the fifth time in the last six disputes, the Appellate Body had not 
circulated its reports within 90 days as mandated in Article 17.5 of the DSU. The Appellate Body 
had also continued its recent deviation from its pre-2011 practice and had failed to consult with the parties or seek their agreement when it became clear that it would be unable to meet the DSU 
deadline. Instead, the Appellate Body had yet again merely informed the parties via form letter 
that it would not circulate its Report within the prescribed time-limit. It would also appear that a step had been taken backwards with respect to tr ansparency, as compared with other reports, in 
that this report did not even mention this issue in its introductory section. Accordingly, a Member 
that had not seen the Article 17.5 notice
8 and was only reading the Report would not be aware of 
the circumstances surrounding the timing of this Re port's circulation. As previously noted, these 
types of actions, in the context of a clear and mandatory DSU provision, did not contribute to a 
strengthening of the rules-based system. They were particularly disappointing in light of the fact 
that Argentina, the United States, and Japan had clearly indicated in a joint letter sent to the Appellate Body and circulated to the DSB that they would have been willing to positively consider a 
request from the Appellate Body for extra time to  circulate its Report given the circumstances and 
that they would consider a late report to be deemed consistent with Article 17.5 of the DSU.
9 As it 
had noted since this issue first came to the DSB's attention, the United States encouraged Members and the Appellate Body to work together to find a solution to this matter, such as a 
return to past practice. A situation in which Members continued to be informed of and react to 
circulation of reports in circumstances such as these only further contributed to a lack of transparency and a lack of predictability surrounding the issue. 
5.7.  The representative of Japan said that his country appreciated the time and effort devoted to 
this case by the Panel, the Appellate Body and the respective Secretariats. Like the other 
co-complainants in these disputes, Japan welcomed the findings and rulings by the Appellate Body 
and the Panel in their Reports that Argentina's measures at issue were in clear breach of its WTO 
obligations. Japan requested the DSB to adopt the Reports at the present meeting. In this dispute, the measures at issue were the unwritten trade-related requirements (TRRs) measures and the Advance Sworn Import Declaration (DJAI) procedure. Both were import restrictions which were 
highly non-transparent, arbitrary and uncertain and clearly trade-restrictive. The Panel and the 
Appellate Body had clearly ruled that under the WTO rules, the import restrictions imposed by 
                                               
5 See e.g., Panel Report, paragraphs 6.155-6.341. 
6 Appellate Body Report, paragraphs 5.103-5.104, 5.108. 
7 Appellate Body Report, paragraphs 5.109-5.110. 
8 Communication from the Appellate Body, 24 November 2014 (WT/DS438/17, WT/DS444/15, 
WT/DS445/16). 
9 Joint Communication from Argentina and the United States, WT/DS444/16 (5 December 2014); Joint 
Communication from Argentina and Japan, WT/DS445/17 (5 December 2014). WT/DSB/M/356 
 
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  Argentina were inconsistent with the WTO Agreement and could not be justified by making the 
measures themselves or the manners by which they were applied non-transparent. Thus the lack of transparency and the uncertainty that characterized the TRRs measure and the DJAI procedures did not provide any cover for the WTO-inconsistency of these measures. Japan believed and hoped 
that these findings and rulings in the Reports would provide a definitive resolution of this dispute, 
and would also clarify the fact that protective measures such as the measures at hand were not accepted under the WTO Agreement. Importantly, the Panel and the Appellate Body had made 
useful clarifications to the issues of law and legal interpretation raised in this dispute and Japan 
wished to highlight two of them. First, with re spect to the type of measures that could be 
challenged in WTO dispute settlement, the Appell ate Body had confirmed that "the distinction 
between 'as such' and 'as applied' claims neither governs the definition of a measure for purposes 
of WTO dispute settlement, nor defines exhaustively  the types of measures that are susceptible to 
challenge".
10 The distinction was "an analytical tool to facilitate the understanding of the nature of 
a measure at issue".11 "Measures" challengeable in the WTO dispute settlement "extend to any act 
or omission that is attributable to a WTO Member"12 and this "broad concept of measure is not 
limited merely to rules or norms of general an d prospective application and their individual 
applications".13 A panel was "not always required to apply rigid legal standard or criteria that are 
based on the 'as such' or the 'as applied' nature of the challenge"14, but instead "the specific 
measure challenged and how it is described or characterized by a complainant will determine the kind of evidence a complainant is required to subm it and the elements that it must prove in order 
to establish the existence of the measure challenged".
15 
5.8.  In this dispute, the Panel and the Appellate  Body had rightly found that "the complainants 
had demonstrated the existence of a TRR measure,  which is composed, in particular, 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"16; which "has systemic 
application, as it applies to economic operators in a broad variety of different sectors"17 and which 
"has present and continued application, in the sense that it currently applies and it will continue to 
be applied in the future until the underlying policy cease to apply".18 In short, this type of measure 
as described and characterized by a complainant, if its existence was demonstrated with evidence, could be subject to challenge in WTO dispute settlement. Second, with respect to the scope of disciplines under Article XI:1 of the GATT 1994, after reaffirming its previous findings, the 
Appellate Body had explained that a "condition or  burden placed on importation or exportation" 
that would constitute "restrictions" which were inconsistent with Article XI were "those that are limiting, that is, those that limit the importation or exportation of products".
19 The Appellate Body 
had further clarified that "this limitation need not be demonstrated by quantifying the effects of 
the measure at issue: rather, such limiting effects can be demonstrated through the design, architecture, and revealing structure of the measur e at issue considered in its relevant context".
20 
In this dispute, the Panel had found that the DJAI  procedure constituted a "restriction" "because it: 
(i) restricts market access for imported products to Argentina as obtaining a DJAI in exit status is not automatic; (ii) creates uncertainty as to an applicant's ability to import; (iii) does not allow companies to import as much as they desire or need without regard to their export performance; 
and (iv) imposes a significant burden on importers that is unrelated to their normal importing 
activity".
21 The Appellate Body had agreed and had explained that "the Panel's reference … [to the 
notion of not being automatic] is a reference both to the direct connection between the DJAI 
procedure and the right to import, and to the discretionary control exercised by Argentina agencies 
in deciding when and subject to what 'exit' status can be attained".22 Thus the Appellate Body had 
clarified that the "discretionary nature"23 of the measures that could create "uncertainty for 
                                               
10 Appellate Body Report, paragraph 5.102. 
11 Appellate Body Report, paragraph 5.102. 
12 Appellate Body Report, paragraph 5.109. 
13 Appellate Body Report, paragraph 5.109. 
14 Appellate Body Report, paragraph 5.110. 
15 Appellate Body Report, paragraph 5.110. 
16 Appellate Body Report, paragraph 5.146. 
17 Appellate Body Report, paragraph 5.146. 
18 Appellate Body Report, paragraph 5.146. 
19 Appellate Body Report, paragraph 5.217. 
20 Appellate Body Report, paragraph 5.217. 
21 Panel Report, paragraph 6.474, quoted in  Appellate Body Report, paragraph 5.271. 
22 Appellate Body Report, paragraph 5.284. 
23 Appellate Body Report, paragraph 5.282. WT/DSB/M/356 
 
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  importers of goods"24 was "an element supporting"25 the view that the measure constituted a 
restriction under Article XI:1 of the GATT 1994. 
5.9.  With regard to exceeding the 90-day time-lim it in these procedures, as expressed in the joint 
communication, dated 5 December 2014, from Argentina, the United States and Japan 
(WT/DS445/17), Japan, once again, expressed its regret about the lack of consultations given the 
prior practice between Members and the Appellate Body until 2011, in which the Appellate Body had consulted with the participants and had obtained their agreement before circulating reports 
after the deadline provided for in the DSU. In this regard, Japan believed that providing an 
opportunity for consultations was an important due process, in particular, in the current circumstances under which the Appellate Body was required to deal with a high amount of work. Japan had requested consultations with Argentina under the DSU in August 2012 and the Panel 
had been established in December 2012. After years of litigation, the dispute settlement 
proceedings would come to an end. The DSB would shortly adopt the recommendations and rulings. It was Argentina's turn to take action to bring itself into conformity with the WTO 
Agreement. Japan urged Argentina to fully implement the DSB's recommendations and rulings by 
promptly eliminating the import restrictions at issue. Japan noted that Article 21 of the DSU provided that "[p]rompt compliance with the recommendations and rulings of the DSB is essential 
in order to ensure effective resolution of disputes" and directed Members to "comply immediately 
with the recommendations and rulings". Japan stood ready to engage in discussions with Argentina in a constructive manner in the coming weeks, with a view to achieving the prompt and full compliance by Argentina and the positive resolution of this dispute. 
5.10.  The representative of Argentina said that his country thanked the Panel, the Appellate Body 
and their respective Secretariats for their work in this dispute. Argentina noted that this dispute 
raised difficulties and challenges regarding the interpretation of issues of high value and of 
systemic importance, some of which, in Argentin a's view had not been appropriately resolved. One 
of these issues concerned the identification of the "overarching measure" and undue expansion of 
the scope of the dispute. Argentina regretted that the three co-complainants had been able to 
proceed through all stages of the dispute without having to properly and precisely identify the 
specific normative content of the alleged overar ching measure as a measure distinct from its 
specific components (Appellate Body Report, paragraphs 5.27 to 5.31). Argentina was not satisfied about the fact that, despite submitting various "as such" claims without naming them in those 
terms, the co-complainants had been able to proceed in the dispute without the need to meet the 
legal standard set by the Appellate Body for assessing "as such" claims concerning unwritten measures. This standard, laid down in the "US - Zeroing (EC)" dispute,  required an "as such" claim 
of inconsistency of an unwritten measure to be based on the following evidence: (i) that the 
measure was attributable to the respondent; (ii) the precise content of the measure; and (iii) that the measure was of general and prospective application. None of this had occurred in this dispute 
(Appellate Body Report, paragraphs 5.107, 5.108 and 5.111). 
5.11.  Argentina was surprised by the Appellate Body's decision not to require a higher level of 
precision as the Appellate Body had recognized the limited approach taken by the Panel (Appellate Body Report, paragraph 5.130). Argentina found it strange that although it had not upheld its 
claim with regard to the legal standard requir ed to demonstrate the existence of an unwritten 
measure of "general and prospective application", the Appellate Body had reasoned that the claim 
was based on an "unwritten measure that has certain characteristics, including systematic and 
continued application" (Appellate Body Report, pa ragraph 5.138). In Argentina's view, unless the 
terms in question were to be interpreted otherwis e than in the ordinary and usual sense, it was 
very difficult to appreciate the difference between "general and prospective application" and 
"systematic and continued application", all the more so when the clarification given was that the 
measure was "applied systematically and will continue to be applied in the future" (Appellate Body Report, paragraph 5.139). Argentina was puzzled as to what would be the difference, if any, if that same sentence were to read: "is applied in a general manner, will continue to be applied in a 
prospective manner", especially given that the Appellate Body appeared to have reached the same 
"result", in stating that Japan's claim had been decided on the basis of the same evidence and within the same analytical framework as the claims of the other two co-complainants (Appellate 
Body Report, paragraph 5.156). Argentina was in the process of examining the Reports to be 
                                               
24 Appellate Body Report, paragraph 5.283. 
25 Appellate Body Report, paragraph 5.286. WT/DSB/M/356 
 
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  adopted at the present meeting and would proceed in this matter in accordance with its WTO 
obligations. 
5.12.  The representative of the European Union said that, unfortunately, the EU had to disagree 
with the other co-complainants regarding one issue. The EU recalled that it disagreed with the 
views expressed by the United States and Japan in  relation to Article 17.5 of the DSU as detailed 
in a communication sent to the Appellate Body and circulated to the DSB previously in the context 
of these disputes. 
5.13.  The representative of Chinese Taipei said that her delegation thanked the Appellate Body 
and the Panel for the Reports, and the Secretariat for the support it provided in these disputes. 
The main reason for Chinese Taipei's participation as a third party was its interest in the interpretation and application of  the GATT 1994, specifically the scope of Article XI and its 
relationship with Article VIII. Chinese Taipei welcomed the fact that, by concluding that Members 
could not excuse their obligations under Article XI:1 by resorting to Article VIII, the Appellate Body had refused to accept the argument that Articles VIII and XI should be interpreted as being 
mutually exclusive. This conclusion, once again, se rved to reaffirm the jurisprudence and helped to 
maintain the integrity of the multilateral trading system. Chinese Taipei had noticed, though, that the time-frame stipulated in Article 17.5 of the DSU had not been followed in this dispute, and this 
was also the case in other disputes. One reason for the delay might be the current heavy workload 
of the Appellate Body. Chinese Taipei wondered whether Members should now give some serious 
thought to the issue of how to improve the efficien cy of dispute proceedings, without prejudice to 
the accuracy and quality of dispute settlement reports. 
5.14.  The representative of Brazil said that hi s country was not a third party in these disputes 
and, therefore, did not wish to make any substantive comments on the Reports at the present 
meeting. However, Brazil wished to comment on  the views expressed by some co-complainants 
about the observance by the Appellate Body of  the 90-day time-period and, the end of past 
practice regarding the circulation of Appellate Body reports as referred to by some delegations. Brazil also wished to comment on the statement made by Japan regarding the introduction of a 
new obligation on the Appellate Body to "consult" with Members on the 90-day time-period. 
Normally, Members were informed about the reasons for delays in the circulation of the Appellate Body reports or the non-observance of the 90-day time-period. In this regard, the Appellate Body 
would send a letter 60 days after a notification of an appeal was filed, with a detailed explanation 
as to why the 60-day period could not be met. Members were aware that similar reasons caused 
delays in relation to the 90-day time-period. Br azil recognized that transparency was important 
and more information about the process and reasons for delays should be provided. However, a 
practice to mandate the Appellate Body to consult with the parties, not only to inform them of 
possible delays but also to seek their agreement to go beyond the 90-day time-period, could have important systemic consequences for the integrity and the independence of the system. He noted 
that, at the time when the DSU had been drafted, it was not clear what would be the workload of 
the Appellate Body. Members should now try to assess the root causes of the problem related to the 90-day time-period. Members were aware that  the current heavy workload of the Appellate 
Body and the long and complex submissions by Members caused delays in the circulation of 
reports. In order to deal with these problems, Members could consider, for example, to increase 
the current number of the Appellate Body members or to extend the time-period under Article 17.5 of the DSU. In conclusion, he noted that those were preliminary comments by Brazil 
on these matters. 
5.15.  The representative of Australia said that his country thanked the Panel and the Appellate 
Body for their Reports in these disputes. Australia participated in this dispute as a third party due 
to its substantial trade and commercial interests in this matter as an exporter of goods to 
Argentina. Another reason for Australia's participation was that it had an interest in the proper interpretation and application of WTO rules. For these reasons, Australia welcomed the fact that 
the Appellate Body had upheld the Panel's findings that Argentina's trade-related requirements 
(TRRs) measure constituted a restriction on the importation of goods and was thus inconsistent 
with Article XI of the GATT 1994. Australia also welcomed the fact that the Appellate Body had 
upheld the Panel's finding that the Declaración Ju rada Anticipada de Importación (DJAI) procedure 
constituted a restriction on the importation of goods and was therefore also inconsistent with 
Article XI of the GATT 1994. These were important findings given the level of concern created by Argentina's measures. WT/DSB/M/356 
 
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  5.16.  Australia also wished to comment on delays in completion of appeal proceedings and the 
need for transparency for all WTO Members on the reasons for such delays, along similar lines to its statement made at the DSB meeting on 16 Ja nuary 2015 in relation to the DS437 dispute. 
Australia was fully aware of the current heavy workload of the Appellate Body and the ever-
increasing complexity in some appeals under consideration. Australia, therefore, understood that it 
may not always be possible to adhere to the time-frames provided for in Article 17.5 of the DSU. In Australia's view, the accuracy and high quality of reports remained paramount in the WTO 
dispute settlement process. However, adherence to  time-frames underpinned the predictability of 
the system and was critical in government an d commercial decision-making. Australia would, 
therefore, encourage as few departures from normal appellate time-frames as possible, and 
consultation with the parties in the event that delay was likely. In Australia's view, such an 
approach would ensure transparency and would be consistent with long-standing practice. Once 
again, Australia thanked the Appellate Body, the Panel and relevant Secretariat staff for their work in this dispute. 
5.17.  The representative of Canada said that his country had participated in these disputes as a 
result of its systemic interest in this matter, and in particular, in the correct interpretation of 
Article XI:1 of the GATT 1994. The Appellate Body had been correct in upholding the Panel's 
findings that formalities or requirements under Article VIII were not excluded, per se , from the 
scope of application of Article XI:1, and that th ose provisions did not impose mutually exclusive 
obligations. With these findings, the Panel and the Appellate Body had confirmed that Article XI:1 
was a comprehensive obligation with respect to import restrictions, whatever form they may take. 
Canada also welcomed the rejection by the Appella te Body of the analytical framework suggested 
by Argentina to determine if an import formality or requirement constituted a restriction under Article XI:1. The Appellate Body had correctly noted that Argentina's two-step approach was not 
supported by the GATT 1994 or the jurisprudence and recalled that the analysis under Article XI:1 
must be done on a case-by-case basis. 
5.18.  With respect to the time the Appellate Body had taken to circulate its Report, Canada 
shared the concern expressed by others that once again it was circulated beyond the 90-day 
deadline provided for in the DSU. Canada fully understood and accepted that in the circumstances of the current demand placed by Members on the dispute settlement system, the longer circulation 
period was inevitable and unavoidable. But the inevitability of this situation did not, in itself, 
diminish the obligatory nature of the time-line th at Members had agreed to include in the DSU. 
Some might like to believe that since the 90 days originally set aside for appeals had become increasingly unrealistic, Members could simply wave away a strict provision of the DSU. Canada 
did not share that view. On the contrary, Canada considered it even slightly troubling that the 
DSB, the very body charged with overseeing compliance with the WTO Agreement, and with 
administering the rules and procedures, had proven to be unwilling or unable to discharge this 
responsibility in these specific circumstances. A small group of delegations had been pursuing 
efforts, prompted in part by the Director General's visit to the DSB last fall, to consider possible solutions to this systemic situation, and other issues related to workload. Thus far, this group had been unable to identify a way forward. In the anticipation of the continuation of this trend in 
upcoming reports to be adopted by the DSB, Canada once again, encouraged delegations to come 
together to develop a sustainable solution to preserve the systemic integrity of the DSU. 
5.19.  The representative of Norway said that his country, as a third party, wished to thank the 
Panel, the Appellate Body and the respective Secret ariats for their work in this complex dispute. 
Norway agreed with others that transparency was important where the Appellate Body could not circulate a report within the 90-day time-frame se t out in Article 17.5 of the DSU. Furthermore, 
Norway also saw the importance of safeguarding pr edictability and legal certainty in this context. 
Any uncertainty connected to whether a report was deemed to be an Appellate Body report 
circulated pursuant to Article 17.5 of the DSU, and hence the adoption procedure for that report, was indeed unfortunate from a systemic point of view. Norway, therefore, would be ready to join 
other Members in any effort to find a workable solution to this issue. 
5.20.  The representative of India said that his country wished to comment only on a particular 
aspect that two of the co-complainants had raised in this dispute, the 90-day period for Appellate 
Body reports. With respect to the deadline of the 90-day period for circulation of Appellate Body 
reports, India disagreed with the United States and Japan on their assessment. The reference to the requirement for consultations as past practice  did not bear any legal mandate. Article 17.5 of 
the DSU did not require consultations. India was aware of the deadline under Article 17.5 of the WT/DSB/M/356 
 
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  DSU and the need not to undermine its importan ce. India was aware of the pressure on the 
Appellate Body due to the number of cases and co mplexity. Complexity of the cases was one of 
the main reasons for the delays. To imply that the Appellate Body Secretariat had to consult and get concurrence of the parties to extend the dead line would be misinterpreting the importance of 
Article 17.5 of the DSU. Workload issues had to be addressed and they could be addressed in a 
variety of ways. Increasing the capacity of the Secretariat was one of the ways and that was being done. Increasing the period of time provided wa s another. Brazil had commented on some of the 
ways of doing so. Members were aware of the pres sure on the Appellate Body and would need to 
address this issue appropriately instead of highlighting the need for consultations as a legal mandate or past practice. 
5.21.  The representative of the United States said that his country would like to comment again 
on a procedural matter that numerous Members had commented on at the present meeting, 
including Australia, Brazil, Chinese Taipei, Canada, Japan, India, the EU, and Norway. It had been useful to have had this discussion related to this  important systemic issue. One comment that had 
been made that the United States would like to address was the issue of past practice with respect 
to consultations and agreement. In that regard, the United States said that it may be illuminating to look at paragraph 14 of the Appellate Body re port in the "US – Upland Cotton" (Article 21.5) 
dispute, which described the Appellate Body's cons ultations with Brazil and the United States in 
that dispute when it became clear that the report could not be circulated within 90 days. In particular, that paragraph read: "After consultation  with the Appellate Body Secretariat, Brazil and 
the United States agreed, in a joint letter dated 19 March 2008, that it would not be possible for 
the Appellate Body to circulate its Report in this appeal within the 90-day time-limit referred to in 
Article 17.5 of the DSU. Brazil and the United States agreed that additional time was needed because of the complexity of the issues arising in the appeal and the difficulties encountered by 
the Appellate Body in scheduling the oral hearing. Brazil and the United States accordingly 
confirmed that they would deem the Appellate Body  Report in these proceedings, issued no later 
than 2 June 2008, to be an Appellate Body Report circulated pursuant to Article 17.5 of the DSU". 
That paragraph from the Appellate Body Report described merely one example of 14 consecutive 
disputes where the Appellate Body had consulted with and had reached agreement with the parties 
when it was unable to circulate its report within 90 days. It was also a perfect example of where this issue had been described in a transparent manner in the Appellate Body Report, which was 
the practice that the United States was suggesting the Appellate Body return to. In fact, as it had 
noted before, the United States would continue to encourage Members to work together and to work with the Appellate Body to return to the pre-2011 practice. This would help enhance the 
credibility of the system and restore needed tran sparency and predictability. The United States 
looked forward to further discussions with Members on this topic. 
5.22.  The representative of Brazil said that his country wished to respond to the US statement 
regarding the situation that had taken place many ye ars ago. He said that indeed Brazil had signed 
that letter in the "United States - Upland Cotton"  dispute since, at that time, it was concerned 
about the complexity of this difficult dispute. However, it was not Brazil's intention to set a precedent. Once Brazil observed that such letters we re being misused to try to create a practice, it 
considered that this was not a good practice. It now became clear that such letters were being 
used to try to impose an obligation on the Appellate Body, which should be independent. To consult with the parties and to seek their ag reement regarding the extension of the 90-day 
time-period could have strong systemic implications. Brazil noted that, in its previous statement, 
the United States had stated that the Appellate Body had consulted with the parties in order to "reach agreement". Brazil found this disturbing beca use this could mean that a report circulated 91 
or 95 days after a notice of appeal could no longer be subject to the DSB's adoption by negative 
consensus. This was troubling and Members should carefully examine this matter. In Brazil's view, 
there were other more efficient options to alleviate the workload of the Appellate Body. 
5.23.  The representative of the European Union said  that in light of the statements made by other 
delegations, the EU felt obliged to recall its vi ew that there was no link between Article 17.5 and 
Article 17.14 of the DSU. At the present meeting, Members could continue to make statements on 
this issue but they would not be any closer to solving the matter at hand. In the EU's view, 
Members needed to resolve this matter in another forum. Members should not interpret what they 
claimed to be past practice because it did not help this process and could make things worse. If Members wanted to find solutions they should not refer to practices that did not necessarily exist. WT/DSB/M/356 
 
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  5.24.  The DSB took note of the statements. 
5.25.   The DSB adopted the Appellate Body Report contained in WT/DS438/AB/R and the Panel 
Report contained in WT/DS438/R and Add.1, as modified by the Appellate Body Report. 
5.26.   The DSB adopted the Appellate Body Report contained in WT/DS444/AB/R and the Panel 
Report contained in WT/DS444/R and Add.1, as upheld by the Appellate Body Report. 5.27.  The DSB adopted the Appellate Body Report contained in WT/DS445/AB/R and the Panel 
Report contained in WT/DS445/R and Add.1, as upheld by the Appellate Body Report. 
 
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