RESTRICTED  
  
WT/DSB/M/394  
 
17 May 2017  
(17-2619) Page: 1/19 
Dispute Settlement Body  
21 March 2017    
 
MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 21 MARCH 2017  
Chairman: Mr. Xavier  Carim  (South Africa ) 
Table of Contents  
1   SURVEILLANCE OF IMPL EMENTATION OF RECOMM ENDATIONS ADOPTED BY  
THE DSB ................................ ................................ ................................ ...........................  2 
A.  United  States – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status report by the United  States  ................................ ................................ ..............  2 
B.  United  States – Section 110(5) of the US Copyright Act: Status report by 
the United  States  ................................ ................................ ................................ ................  2 
C.  European  Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European  Union ................................ ................................ ....... 3 
2   UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  
OF 2000: IMPLEMENTATION  OF THE RECOMMENDATIO NS ADOPTED BY THE  DSB ...........  4 
A.  Statement by the European  Union  ................................ ................................ ....................  4 
3   CHINA – CERTAIN MEASURES AFF ECTING ELECTRONIC PA YMENT SERVICES  .............  5 
A.  Statement by the United  States  ................................ ................................ .......................  5 
4   UNITED  STATES – CERTAIN MEASURES REL ATING TO THE RENEWAB LE 
ENERGY SECTOR  ................................ ................................ ................................ ..............  5 
A.  Request for the establishment of a panel by India  ................................ ..............................  5 
5   RUSSIA – MEASURES CONCERNING TRAFFIC IN TRANSIT  ................................ ..........  6 
A.  Request for the establishment of a panel by Ukraine  ................................ ..........................  6 
6   EUROPEAN  UNION – MEASURES RELATED TO PRICE COMPARISON 
METHODOLOGIES  ................................ ................................ ................................ .............  7 
A.  Request for the establishment of a panel by China  ................................ .............................  7 
7   INDIA – CERTAIN MEASURES ON IMPORTS OF IRON AND STEEL PRODUCTS  ..............  9 
A.  Request for the establishment of a panel by Japan  ................................ .............................  9 
8   RUSSIAN  FEDERATION – MEASURES ON THE IMPO RTATION OF LIVE PIGS , 
PORK AND OTHER PIG P RODUCTS FROM THE EUR OPEAN  UNION  ................................ ... 11 
A.  Report of the Appellate Body and Report of the Panel  ................................ ........................ 11 
9   APPELLATE BODY APPOI NTMENTS  ................................ ................................ ............  12 
A.  Statement by the Chairman  ................................ ................................ ............................ 12 WT/DSB/M/394  
 
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  10   DISPUTE SETTLEMENT W ORKLOAD  ................................ ................................ .........  16 
A.  Statement by the Chairman  ................................ ................................ ............................ 16 
11   ELECTION OF CHAIRPER SON ................................ ................................ ...................  16 
 
 
1  SURVEILLANCE OF IMPL EMENTATION OF RECOMM ENDATIONS ADOPTED BY  THE DSB 
A.  United  States – Anti-dumping measures on certain hot -rolled steel products from Japan: Status 
report by the United  States (WT/DS184/15/Add.170)  
 
B.  United  States – Section 110(5) of the US Copyright Act: Status report by the United  States 
(WT/DS160/24/Add.145)  
 
C.  European  Communities – Measures affecting the approval and marketing of biotech products: 
Status report by the European  Union (WT/DS291/37/Add.108)  
 
 
1.1.  The Chairman  noted that there were three sub -items under this Agenda item concerning 
status reports submitted by delegations pursuant to Article  21.6 of the DSU.  He recalled that 
Article  21.6 required that: "Unless the DSB decides otherwise, the issue of implementation of the 
recommendations or rulings shall be placed on the Agenda of the DSB meeting after six  months 
following the date of establishment of the reas onable period of time and shall remain on the DSB's 
Agenda until the issue is resolved". The Chairman 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 reminded delegations that, as provided for in 
Rule 27 of the Rules of Procedure for DSB meetings: "Representatives should make every effort to 
avoid the repetition of a full debate at each meeting on any issue that has already been fully 
debated in the past and on which there appears to have been no change in Members' positions 
already on record". He then turned to the first status report under this Agenda item.  
A.  United  States – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status report by the United  States (WT/DS184/15/Add.170)  
1.2.  The Chairman  drew attention to document WT/DS184/15/Add.170, 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.  
1.3.  The representative of the United  States  said that the United  States  had provided a status 
report in this dispute on 9  March  2017, in accordance wit h 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 a nd rulings of the DSB that had yet to be addressed, 
the US  Administration would work with the US  Congress with respect to appropriate statutory 
measures that would resolve this matter.  
1.4.  The representative of Japan  said that his country thanked the United  States for its statement 
and its status report. Japan called on the United  States to fully implement the DSB's 
recommendations and rulings so as to resolve this matter.  
1.5.  The DSB took note  of the statements and agreed  to revert to this matter at its next regul ar 
meeting.  
B.  United  States – Section 110(5) of the US Copyright Act: Status report by 
the United  States (WT/DS160/24/Add.145)  
1.6.  The Chairman  drew attention to document WT/DS160/24/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 Section  110(5) of the US Copyright Act.  WT/DSB/M/394  
 
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  1.7.  The representative of the United  States  said that the United  States  had provided a status 
report in this dispute on 9  March  2017, in accordan ce with Article  21.6 of the DSU. The 
US Administration would continue to confer with the EU, and to work closely with the US  Congress, 
in order to reach a mutually satisfactory resolution of this matter.  
1.8.  The representative of the European  Union  said that h is delegation thanked the United  States 
for its status report and its statement made at the present meeting. The EU referred to its 
previous statements on this matter and said that it would like to resolve this case as soon as 
possible.  
1.9.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
C.  European  Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European  Union (WT/DS291/37/Add.108)  
1.10.   The Chairman  drew atte ntion to document WT/DS291/37/Add.108, which contained the 
status report by the European  Union on progress in the implementation of the DSB's 
recommendations in the case concerning measures affecting the approval and marketing of 
biotech products.  
1.11.   The repr esentative of the European  Union  said that the draft authorisation decision for one 
type of genetically modified maize1 (for food and feed uses), and the draft proposals for the 
authorisation of three types of maize2 (for cultivation), had been submitted f or vote at the member 
States committee on 27  January  2017, with a "no opinion" result. These measures would now be 
submitted for discussion and possible opinion to the Appeal Committee on 27  March  2017. The 
draft authorisation decision for one type of gene tically modified maize3 (for food and feed uses) 
and one type of genetically modified cotton4 (for food and feed uses) would be submitted for a 
vote at the member States committee on 27  March  2017. The EU said that it continued to be 
committed to acting in  line with its WTO obligations. More generally, and as it had stated 
previously on many occasions, the EU recalled that the EU approval system was not covered by 
the DSB's recommendations and rulings.  
1.12.   The representative of the United  States  said that the U nited States  thanked the EU for its 
status report and its statement at the present meeting. The EU measures affecting the approval 
and marketing of biotech products continued to result in lengthy, unpredictable, and unexplained 
delays in approvals. The del ays and uncertainty in approvals caused adverse effects on trade. The 
failure to approve biotech corn products was a source of particular concern to the United  States. 
The EU's scientific review process was subject to increasingly long delays. Many corn an d soybean 
products had now been under consideration by the EU's scientific authority for many years. 
For example, in 2016, the EU had released seven scientific opinions for new products. The average 
period of review for these products was more than six yea rs. Furthermore, the EU had recently 
proposed regulations that would create more, rather than less, uncertainty with regard to the 
information required for scientific evaluation of biotech products. The United  States also strongly 
encouraged the EU to ensu re that it required only the scientific information relevant to the type of 
risk assessment being conducted. For example, scientific information on environmental effects 
should only be required where applicants sought authorization to conduct field trials or to cultivate 
biotech products. In closing, the United  States encouraged the EU to ensure that, as required by 
EU regulations and WTO rules, products in the biotech approval pipeline were considered without 
unnecessary delays.  
1.13.   The DSB took note  of the st atements and agreed  to revert to this matter at its next regular 
meeting.  
                                                
1 Maize Bt11 × 59122 × MIR604 × 1507 × GA21.  
2 Bt11, 1507 and MON810 (renewal) . 
3 DAS 40278 -9. 
4 GHB 119.  WT/DSB/M/394  
 
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  2  UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  OF 2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE  DSB 
A.  Statement by the European  Union  
2.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European  Union and invited the representative of the European  Union to speak.  
2.2.  The representative of the European  Union  said that his delegation, once again, requested the 
United  State s 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 abid e by its clear 
obligation under Article  21.6 of the DSU to submit status reports on implementation in this 
dispute. The EU would continue to place this matter on the DSB Agenda for as long as the 
United  States had not implemented the WTO rulings.  
2.3.  The repre sentative of Brazil  said that his country thanked the EU for keeping this item on the 
DSB Agenda. As a party to the Byrd Amendment disputes, Brazil referred to its previous 
statements on this matter. In particular, Brazil wished to refer to its statements regarding the 
continuation of illegal disbursements, which should cease immediately. Brazil renewed its call on 
the United  States to fully comply with the DSB's recommendations and rulings in this dispute. Until 
then, the United  States was under an obligat ion to submit status reports, pursuant to Article  21.6 
of the DSU.  
2.4.  The representative of Canada  said that his country thanked the EU for placing this item on 
the DSB Agenda. Canada shared the view that the Byrd Amendment should be kept under the 
surveillan ce of the DSB until the measure ceased to be applied.  
2.5.  The representative of China  said that her country thanked the EU for placing this item on the 
Agenda of the present meeting. China urged the United  States to fully implement the DSB's 
recommendations an d rulings on this matter as soon as possible.  
2.6.  The representative of the United  States  said that, as the United  States  had noted at previous 
DSB meetings, the Deficit Reduction Act – which included a provision repealing the Continued 
Dumping and Subsidy Off set Act of 2000 – had been enacted into law in February  2006. 
Accordingly, the United  States had taken all actions necessary to implement the DSB's 
recommendations and rulings in these disputes. The United  States recalled, furthermore, that the 
EU had ackn owledged that the Deficit Reduction Act did not permit the distribution of duties 
collected on goods entered after 1  October  2007, over nine years ago. With respect to the EU's 
request for status reports in this matter, as the United  States had already exp lained at previous 
DSB meetings, there was no obligation under the DSU to provide further status reports once a 
Member announced that it had implemented the DSB's recommendations and rulings, regardless 
of whether the complaining party disagreed about comp liance. The EU had demonstrated 
repeatedly that it shared this understanding, at least when it was the responding party in a 
dispute. At the 20  February  2017 DSB meeting, the United  States had pointed out that the EU was 
not providing status reports in the  "EC – Large Civil Aircraft" (DS316) dispute, despite the fact that 
the United  States did not agree that the EU had implemented the DSB's recommendations. Nor 
had the EU provided such a status report for the present meeting. Once again, if the EU actually 
believed the position it was taking under this Agenda item, it could demonstrate this by submitting 
a status report in DS316 for the next month's  DSB meeting.  
2.7.  The representative of the European  Union  said that, in relation to the comment made by the 
United  States concerning the "EC – Large Civil Aircraft" (DS316) dispute, his delegation noted that 
DS316 was currently under compliance proceedings before the Panel and that an appeal had been 
submitted. This was not the case with the Byrd Amendment that was be ing discussed under the 
present Agenda item.  
2.8.  The DSB took note  of the statements.  WT/DSB/M/394  
 
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  3  CHINA – CERTAIN MEASURES AFF ECTING ELECTRONIC PA YMENT SERVICES  
A.  Statement by the United  States  
3.1.  The Chairman  said that this item was on the Agenda of the present meeting at  the request of 
the United  States and invited the representative of the United  States to speak.  
3.2.  The representative of the United  States  said that the DSB had adopted its recommendations 
in this dispute in August  2012, and the reasonable period of time had long since expired. China, 
however, continued to authorize only one entity to provide electronic payment services (EPS) in 
China. That one entity was China's pre -existing, long -time state champion EPS supplier, known as 
China UnionPay. The entity had been formed by a consortium of Chinese government policy banks 
and Chinese state -owned banks. The United  States urged China to ensure that foreign EPS 
suppliers could apply for and receive permission to operate in China, in accordance with China's 
WTO obligatio ns. 
3.3.  The representative of China  said that her country regretted that the United States had, once 
again, brought this matter before the DSB. China referred to its statements made at previous 
meetings and emphasized that it had taken all necessary actions an d had fully implemented the 
DSB's recommendations and rulings in this dispute.  
3.4.  The DSB took note  of the statements.  
4  UNITED  STATES – CERTAIN MEASURES REL ATING TO THE RENEWAB LE ENERGY 
SECTOR  
A.  Request for the establishment of a panel by India (WT/DS510/2)  
4.1.  The Chairman  recalled that the DSB had considered this matter at its meeting on 
20 February  2017 and had agreed to revert to it. He drew attention to the communication from 
India contained in document WT/DS510/2, and invited the representative of India to speak.  
4.2.  The representative of India said that the present request for the establishment of a panel had 
been first considered by the DSB at its meeting on 20  February  2017. The request for the 
establishment of a panel was contained in WT/DS510/2. At that mee ting, the United  States had 
stated that India had chosen to launch this dispute for purely political reasons. India said that it 
was disappointed that its valid concerns regarding the domestic content requirements in certain 
renewable energy programmes mai ntained by the United  States were being presented as political 
retaliation to the findings of the DSB in the DS456 dispute. India denied these assertions and 
reiterated that the request for establishment of a panel was driven by the sole desire to ensure 
that measures maintained by Members did not negate the desired objectives and expected 
benefits to other Members under the WTO. In fact, India had been raising its concerns about the 
domestic content requirements in some of the renewable energy programmes m aintained by the 
United  States before the TRIMs Committee and the SCM Committee since 2013, long before the 
US had requested the establishment of the panel in DS456. Though these programmes were 
WTO-inconsistent, India had refrained from filing a dispute c hallenging these programmes and 
had, in good faith, sought to seek information from the US through these Committees. Since the 
efforts through the Committees had not yielded satisfactory responses, India had requested 
consultations with the United  States o n 9 September  2016 to resolve the matter. Consultations 
had been held on 16 -17 November  2016 but, unfortunately, had failed to resolve the matter. As a 
result, India had requested the DSB to establish a panel in accordance with the DSU provisions.  He 
recalled that at the 20  February  2017 DSB meeting, the United  States had also stated that India 
had no commercial interest in the dispute. These assertions were patently incorrect. India had, in 
the past, exported renewable energy equipment to the United  States . Subsequently the exports 
had been rendered commercially unviable due to reasons which included the trade distortionary 
effects of the measures maintained by the United  States. India reiterated that each of the 
programmes referred in the panel request off ered subsidies which were contingent on domestic 
content requirements and were inconsistent with United  States' obligations under the 
SCM Agreement of the GATT  1994 as well as the TRIMs  Agreement. Hence, India requested that 
the DSB establish a panel, in a ccordance with Article  6 of the DSU, to examine India's complaint in WT/DSB/M/394  
 
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  the DS510 dispute and make appropriate findings in order to resolve this dispute as soon as 
possible.  
4.3.  The representative of the United  States  said that, as the United  States  had explained  at the 
20 February  2017 DSB meeting, it appeared that India had launched this dispute for purely 
political reasons. Indian government officials had been quoted in the press as characterizing this 
dispute as a response to the successful challenge of the Un ited States to India's domestic content 
requirements in the solar energy sector. But under Article  3.10 of the DSU, complaints and 
counter -complaints "should not be linked". Furthermore, India did not export significant amounts 
of renewable energy equipmen t to the United  States, and the state -level programs identified in 
India's request appeared to have virtually no effect on commerce at all. Accordingly, the 
United  States did not consider that India's complaint was warranted and questioned whether the 
establishment of a panel was an appropriate use of the dispute settlement system's resources. If 
India nonetheless determined to pursue this matter further, the United  States would vigorously 
defend US measures before the panel. 
4.4.  The DSB took note  of the statem ents and agreed  to establish a panel in accordance with the 
provisions of Article  6 of the DSU with standard terms of reference.  
4.5.  The representatives of Brazil , China , Chinese  Taipei , the European  Union , Indonesia , Japan , 
Korea , Norway , the Russian  Federati on, Singapore  and Turkey  reserved their third -party rights to 
participate in the Panel's proceedings.  
5  RUSSIA – MEASURES CONCERNING TRAFFIC IN TRANSIT  
A.  Request for the establishment of a panel by Ukraine (WT/DS512/3)  
5.1.  The Chairman  recalled that the DSB ha d considered this matter at its meeting on 
20 February  2017 and had agreed to revert to it. He drew attention to the communication from 
Ukraine contained in document WT/DS512/3, and invited the representative of Ukraine to speak.  
5.2.  The representative of Ukraine reiterated her country's concerns over the measures imposed 
by the Russian  Federation that prohibited or otherwise restricted traffic in transit from Ukraine, 
through Russia, to third countries. As had been discussed at the 20  February  2017 DSB meeting , 
and explained in detail in Ukraine's panel request (WT/DS512/3), since 1  January  2016, Russia 
had been prohibiting traffic in transit from Ukraine, through Russia, to Kazakhstan. Since 
1 July 2016 the same applied to traffic in transit from Ukraine to th e Kyrgyz Republic. Such traffic 
in transit could only originate from Belarus. Traffic in transit also had to comply with the 
requirement of affixing identification seals, functioning on the basis of the GLONASS technology, to 
units of road and rail transpo rt. Furthermore, all road transport drivers transporting goods from 
Ukraine had to obtain registration certificates when entering Russia. In July  2016, Russia had also 
imposed separate bans on the traffic in transit of specific types of goods from Ukraine,  through 
Russia, to Kazakhstan and to the Kyrgyz  Republic. In fact, those measures also appeared to have 
been applied to traffic in transit destined for other countries in Central and Eastern Asia and 
the Caucasus.  In 2014, prior to the introduction of the  2016 measures prohibiting or otherwise 
restricting traffic in transit from Ukraine through Russia, her country had prohibited the traffic in 
transit of certain goods through its territory. These measures had had very detrimental economic 
consequences for Ukraine. They were also inconsistent with several provisions of the GATT  1994 
and the Protocol on the Accession of the Russian  Federation to the WTO. Since Ukraine had 
submitted its request for the establishment of a panel on 20  February  2017, the Russian measures 
on traffic in transit remained in force and continued to violate several provisions of the WTO 
covered agreements. Therefore, Ukraine requested that the DSB establish a panel, with standard 
terms of reference, to examine its complaint in the DS512  dispute . 
5.3.  The representative of the Russian  Federation  reiterated his country's disappointment with 
Ukraine's decision to request the establishment of a panel, for the second time, to examine 
Ukraine's complaint in the DS512  dispute . As had been stated at the 20  February  2017 DSB 
meeting, Russia affirmed its continuing respect for WTO rules and its  accession commitments. 
Russia expressed its disappointment that Ukraine had failed to assess whether referral of this 
dispute to the DSB would be fruitful. Howev er, in any event, Russia stood ready to defend its 
rights under the covered agreements.  WT/DSB/M/394  
 
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  5.4.  The DSB took note  of the statements and agreed  to establish a panel in accordance with the 
provisions of Article  6 of the DSU with standard terms of reference.  
5.5.  The repr esentatives of Brazil , Canada , China , the  European  Union , India, Japan , Korea , 
Norway , Paraguay , Singapore , Turkey  and the  United  States  reserved their third -party rights to 
participate in the Panel's proceedings.  
6  EUROPEAN  UNION – MEASURES RELATED TO PRICE  COMPARISON METHODOLO GIES  
A.  Request for the establishment of a panel by China (WT/DS516/9)  
6.1.  The Chairman  drew attention to the communication from China contained in document 
WT/DS516/9, and invited the representative of China to speak.  
6.2.  The representative of China  said her country had requested consultations with the EU in this 
dispute on 12  December  2016. These consultations had been held on 23  January  2017. Although 
they had assisted in clarifying some of the issues between the parties, they had failed to  resolve 
the dispute. China said that it attached great importance to resolving this dispute promptly. China 
therefore requested the DSB to establish a panel at the present meeting. She recalled that upon 
its accession to the WTO in 2001, China had agreed with other WTO Members that, for a 
transitional period of 15  years, special China -specific treaty provisions would apply to the 
determination of certain elements of "price comparability" in anti -dumping proceedings involving 
Chinese imports. China and othe r WTO Members, including the EU, had thus agreed on a 
time-bound and temporary basis that special rules could apply in proceedings involving Chinese 
imports. The legal provision that provided for special treatment of Chinese imports was found in 
paragraph  15(a) of China's Accession Protocol. Under paragraph 15(a)(ii), importing WTO 
Members were, subject to conditions, exceptionally permitted to depart from generally applicable 
WTO rules. For 15  years, therefore, WTO Members could accord differential treatme nt to Chinese 
imports when determining normal value in anti -dumping proceedings.  
6.3.  The EU had made use of these provisions and, indeed, had denied China advantages that had 
been accorded to other WTO Members. The discrimination was embodied in Articles  2(1) to 2(7) of 
the EU Basic Anti -Dumping Regulation ("the Basic Regulation"). Articles  2(1) to  2(6) of the Basic 
Regulation set out rules, in EU law, for determining normal value in anti -dumping proceedings. 
Article  2(7) of the Basic Regulation set out a diffe rent regime that applied to the calculation of 
normal value for imports from, so -called, "non -market economy" countries. Article  2(7)(b), which 
expressly named China, provided that the rules set forth in Articles  2(1) to  2(6), for calculating 
normal value for a specific producer, could only apply if that producer was able to substantiate 
that, so -called, "market economy" conditions prevailed in respect of the manufacture and sale, by 
that producer, of the like product concerned. To do so, the producer had t o establish that it met 
the criteria set out in Article  2(7)(c). Article  2(7)(b) provided that, for all producers unable to 
make this showing, the normal value calculation rules set forth in Article  2(7)(a) would apply. 
Under Article  2(7)(a), normal value had to be determined on the basis of prices or constructed 
value in a surrogate "market -economy" third country. Therefore, Chinese imports had been denied 
the advantage of the rules set forth in Articles  2(1) to  2(6) regarding the determination of normal 
value, and instead faced the less favourable rules set forth in Article  2(7), unless Chinese 
producers demonstrated that "market economy" conditions prevailed.  
6.4.  While the EU was permitted to derogate from the generally applicable rules for the 
determination of normal value in cases involving imports from China for the first 15 years of 
China's WTO membership, that transitional period had come to an end on 11  December  2016 
when the relevant provision of China's Accession Protocol had expired. This meant that, consistent 
with the shared understanding of WTO Members, as of 11  December  2016, the generally 
applicable WTO rules governing the determination of all elements of price comparability now 
applied to imports from China. Chinese exporters therefore could not now be subjected to 
discriminatory treatment in the calculation of normal values. Chinese exporters, who had suffered 
great harm as a result of the discriminatory treatment, were entitled to enjoy the same treatment 
as exporters from other WTO Members. Des pite the deal agreed between China and WTO Members 
in 2001, the EU continued, through Articles  2(1) to  2(7) of the Basic Regulation, to deny China the 
same treatment that it afforded other WTO Members under the WTO covered agreements. China 
was concerned t hat, as it had explained in document WT/DS516/9, the measures at issue were WT/DSB/M/394  
 
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  inconsistent with the relevant provisions of the GATT  1994 and the Anti -Dumping Agreement. 
China was disappointed that it had to have recourse to the dispute settlement mechanism i n order 
for the EU to remedy the WTO -inconsistency of its measures. Regrettably, however, China said 
that it saw little choice but to request that this matter be referred to a panel.  
6.5.  The representative of the European  Union  said his delegation regretted th at China had 
decided to request the establishment of a panel. After China had filed its request for consultations, 
both parties had held constructive consultations in which the EU had provided extensive 
explanations. As the EU had previously explained to C hina, the EU very much regretted that China 
had chosen to bring panel proceedings with respect to a measure (Article  2(7) of 
Regulation  (EU) 2016/1036, as it related to China) that was currently the subject of a legislative 
process which could result in it s withdrawal. The EU considered that such action was unnecessary 
and ultimately incapable of being fruitful within the meaning of Article  3.7 of the DSU. As such, the 
EU considered that it was an inappropriate use of the already strained resources of the W TO 
dispute settlement system. The EU particularly regretted that, notwithstanding the clarifications 
provided by the EU, China persisted in attacking the ongoing internal legislative processes of 
the EU. However, neither the EU, nor China, or the DSB, or a ny WTO adjudicator, was in a position 
to predict what the specific outcome of those democratic processes could be. China's request was, 
in this respect, premature and incapable, as a matter of principle, of being fruitful. That being so, 
the EU could only conclude that China's objective was, in fact, to attempt to interfere in the 
internal legislative processes of the EU. This should be a matter of grave concern to all Members.  
6.6.  Similarly, the EU noted China's thinly veiled and self -serving attempt to create  and maintain 
an unlawful short -cut between the current dispute as it related to Article  2(7) of 
Regulation  (EU) 2016/1036, and an unknown outcome of the EU's internal legislative processes. 
The EU had already explained to China why this was inconsistent w ith various provisions of the 
DSU, and would constitute a serious breach of the EU's due process rights. As and when the EU 
completes its internal legislative processes, should China wish to seek WTO review of the resulting 
measure, China would be obliged to follow and fully respect the specific procedures set out in the 
DSU for that purpose. That was the very essence of due process. It was not amenable to 
shortcuts. In this respect, upon receipt of the consultations request, at the earliest possible 
opport unity, the EU had immediately informed China, in writing, of its position with respect to this 
matter. Specifically, the EU had drawn China's attention to the fact that no consultations could be 
held with regard to currently inexistent future possible meas ures of indeterminate and 
substantively different content. China, which in this context, was under an obligation to accord 
sympathetic consideration to any representations made by the EU, raised no objection to the 
clarifications provided by the EU nor to the EU's specific and express delimitation of the scope of 
the consultations. It was on the basis of this consensus ad idem, and this basis only, that the 
parties had agreed to proceed to consultations. China had to accept the consequences of its own 
actions and omissions. Accordingly, the EU called upon China, again, to respect both the letter and 
the spirit of the DSU, and to withdraw this panel request, or at least to take appropriate steps to 
eliminate the procedural defects in its consultations request  and its panel request. The EU, 
therefore, did not support the establishment of a panel at the present meeting. In any event, 
should a panel be established in this dispute, the EU would defend its legislation vigorously.  
6.7.  The representative of the United  States said that the United  States  was intervening to 
express its support for the right of the EU and other WTO Members to use a non -market economy 
methodology in anti -dumping proceedings involving China. WTO Members had long recognized 
that government inter vention in a country's home market could be so significant that prices and 
costs were distorted and unsuitable for purposes of calculating an anti -dumping margin. Among 
other places, this recognition was reflected in the second Supplementary Provision to p aragraph  1 
of the GATT  1994 Article  VI, in GATT working party reports for several Contracting Parties that 
joined the GATT in the 1960s and 1970s, and in WTO Accession Protocols. As Members knew, it 
was also reflected in China's Accession Protocol. When Ch ina joined the WTO, Members had agreed 
that Chinese prices and costs could be rejected and that a non -market methodology could be used, 
as long as the facts showed that China remain s a non -market economy. China's argument that the 
EU had to cease using a n on-market economy methodology regardless of the facts had no legal 
merit. China's argument failed to take account of the remaining provisions of China's Protocol. 
China's argument was also divorced from reality. As many Members were aware, China's 
governme nt continued to intervene heavily in its economy, resulting in serious distortions to the 
international trading system. To cite just one example, China's intervention in the steel sector had WT/DSB/M/394  
 
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  significantly distorted prices and led to severe overproduction a nd excess capacity, with the 
resulting surplus dumped all over the world.  
6.8.  China appeared to believe that it could use the WTO dispute settlement system to take away 
the tools that other Members had under WTO rules to address China's distortions. This was w rong. 
WTO rules permitted Members to use a non -market economy methodology for purposes of 
addressing China's distorted prices and costs. The WTO dispute settlement system could not 
change the rights of WTO Members. The United  States and many other Members affected by 
China's distortions used their own, different measures to treat China as a non -market economy, as 
they were entitled to under existing WTO rules. If China wished to discuss those rules, it could 
engage with other Members and explain how it woul d eliminate the distortions its government 
policies were causing. If China did not address those distortions that were causing harm to so 
many Members' industries and workers, however, there was no basis to insist that Members could 
not use appropriate WTO  tools to address China's injurious dumping practices. The United  States 
said that in its statement at the present meeting, it also wished to comment on China's attempt to 
bring an EU draft measure into the dispute. By their very nature, draft measures wer e subject to 
change, and it was not the appropriate role of WTO panels or the Appellate Body to offer 
speculative findings on such draft measures.  
6.9.  In closing, the United  States suggested that there was no reason for China to move forward 
with a dispute wit h the EU, the United  States, or any other Member. If China truly believed that it 
was a market economy, it should take advantage of Members' respective laws, which permitted 
China to show that it was a market economy or that an industry was market -oriented , based on 
the facts. On the other hand, if China did not believe that it had become a market economy, then 
it should finally follow through with the reforms it had promised WTO Members when it had joined 
the WTO.  
6.10.   The representative of Japan  said that his country took note of the statements made by 
China, the EU and the United  States. Japan was generally supportive of the EU's and 
United  States' respective positions on the interpretive issues raised by China in this dispute and 
shared their concerns with re spect to China's interpretations of the various provisions at issue in 
the WTO Agreement, including China's Accession Protocol. In particular, Japan was of the view 
that the WTO Agreement, including China's Accession Protocol, continued to allow WTO Member s 
to use a methodology that was not based on a strict comparison with domestic prices or costs in 
China.  
6.11.   The representative of China  said that paragraph  12 of China's request for the establishment 
of a panel (WT/DS516/9) stipulated as follows: "This reques t for panel establishment also concerns 
any modification, replacement or amendment to the measures identified above, and any closely 
connected, subsequent measures". The footnote to this paragraph (i.e. footnote  2) further clarified 
that "China is aware of  two legislative processes implicating potential changes to relevant 
provisions of the Basic Regulation.  This request includes any changes made to the Basic Regulation 
pursuant to the legislative processes initiated by these proposals".  
6.12.   The DSB took note  of the statements and agreed  to revert to this matter.  
7  INDIA – CERTAIN MEASURES ON IMPORTS OF IRON AND STEEL PRODUCTS  
A.  Request for the establishment of a panel by Japan (WT/DS518/5)  
7.1.  The Chairman  drew attention to the communication from Japan contained in  document 
WT/DS518/5 and invited the representative of Japan to speak.  
7.2.  The representative of Japan  said that this dispute concerned India's WTO -inconsistent 
safeguard measures, in the form of duties, on imports of iron and steel products into India. India 
had initiated its safeguard investigations on 7  September  2015 and had imposed a provisional 
measure on 14  September  2015. Since then, India had been maintaining the safeguard measures, 
initially on a provisional basis, and then, from 29  March  2016 onwards , on a definitive basis. The 
measures had significantly compromised the commercial interests of the Japanese exporters and 
producers of the products that had been subject to the safeguard measures in question. In order 
to address the concerns of these expo rters and producers, and to resolve the matter amicably, WT/DSB/M/394  
 
- 10 - 
 
  Japan had been engaged in constant dialogue with India, beginning immediately after the 
measures had been announced. Japan had made a sincere effort in this regard ever since, in the 
hope that India would repeal the WTO -inconsistent safeguard measures. Unfortunately, the 
measures were still in place. It was only after this extensive effort that Japan had decided to have 
recourse to the formal dispute settlement process under the DSU.  
7.3.  Japan said that, as it had explained in detail in its panel request, it considered India's 
safeguard measures to be inconsistent with India's obligations under the GATT  1994 and the 
Agreement on Safeguards. Japan said that India had failed to provide reasoned and adequate 
findings and conclusions in its determination as to the unforeseen developments as well as the 
effect of the obligations incurred by India under the GATT  1994. India had also failed to provide 
reasoned and adequate findings and conclusions in its determina tion with respect to: 
(i) the alleged increased imports of the products concerned; (ii) the alleged existence of a serious 
injury and threat thereof to the domestic industry; and (iii) the alleged causal link between the 
alleged increase in imports and the  alleged serious injury or threat thereof. Furthermore, India had 
failed to observe several notification and consultation requirements under Article  12 of the 
Agreement on Safeguards. Japan had requested consultations on 20  December  2016 and had held 
consu ltations with India on  6 and 7  February  2017 with a view to reaching a mutually satisfactory 
solution. Unfortunately, Japan and India had been unable to settle the dispute.  
7.4.  Japan therefore requested, pursuant to Article  6 of the DSU, Article  XXIII of the G ATT 1994 
and Article  14 of the Agreement on Safeguards, that a panel be established to examine the matter 
as set out in its panel request, with standard terms of reference, in accordance with Article  7.1 of 
the DSU. Before concluding, Japan highlighted tha t the safeguard measures in question would 
expire on 13  March  2018. This meant that there would be less than a year between the 
establishment of the panel and the expiration of the measure. As it had explained, since the 
announcement of these safeguard mea sures, Japan had wasted no time in engaging in discussions 
with India to bilaterally resolve this matter. The timing of Japan's panel request reflected Japan's 
serious and persistent effort to reach a solution mutually acceptable to both Japan and India, a s 
was preferred under Article  3.7 of the DSU. Given this historical background, Japan hoped that the 
panel would examine its complaint in DS518 as a matter of urgency and would endeavour to issue 
its report as early as possible, with a view to securing a p rompt and satisfactory resolution of this 
dispute.  
7.5.  The representative of India said that his country was deeply disappointed that Japan had 
sought the establishment of a panel in this matter  despite the fact that India had held constructive 
consultations w ith Japan on 6  and 7 February  2017. In the context of those consultations India 
had replied to Japan's questionnaire and had provided  the required information to Japan. India had 
also demonstrated during the consultations how the safeguard measures in ques tion were 
consistent with India's obligations under the Safeguards Agreement. During the consultation 
process, India had diligently explained the legal framework as well as the exceptional 
circumstances which necessitated the safeguard measures. Moreover, the duration of India's 
safeguard measures was shorter than the time -period provided for under the Safeguards 
Agreement. This was in line with the intention of safeguard measures, which required that the 
measures should be applied for a period that was nec essary to prevent or remedy serious injury 
and to facilitate the adjustment of the domestic industry. Though the WTO Safeguard Agreement 
set out broad guidelines, a number of issues had to be decided by the investigating authority 
based on the facts and ci rcumstances of the case. With the passage of time, international trading 
operations were becoming more complex. This made it more difficult for investigating authorities 
to follow a fixed pattern in each case. As a result, differences in views existed betw een the 
investigating country and the country of export on the correct application of provisions of the 
Safeguard Agreement in specific  cases. This was despite best efforts made to articulate the facts 
made available and the accompanied reasoning thereof. India considered that such issues could be 
better clarified and resolved on a bilateral basis, rather than overloading the WTO dispute 
settlement mechanism  at this stage. Thus before filing its panel request at the present meeting, 
Japan could have conside red these facts. India believed that its actions were consistent with the 
provisions of the relevant WTO Agreements. For all these reasons, India said that it was not in a 
position to agree to Japan's request for the establishment of a panel in DS518 at th e present 
meeting.  
7.6.  The DSB took note  of the statements and agreed  to revert to this matter.  WT/DSB/M/394  
 
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  8  RUSSIAN  FEDERATION – MEASURES ON THE IMPO RTATION OF LIVE PIGS , PORK AND 
OTHER PIG PRODUCTS F ROM THE EUROPEAN  UNION  
A.  Report of the Appellate Body (WT/DS475/AB/R a nd WT/DS475/AB/R/Add.1) and  
Report of the  Panel (WT/DS475/R and WT/DS475/R/Add.1)  
8.1.  The Chairman  drew attention to the communication from the Appellate Body contained in 
document WT/DS475/12 transmitting the Appellate Body Report in the dispute: 
"Russian  Federation – Measures on the Importation of Live Pigs, Pork and Other Pig Products from 
the European  Union", which had been circulated on 23  February  2017 in document 
WT/DS475/AB/R and Add.1. The Chairman reminded delegations that the Appellate Body Report 
and the Panel Report pertaining to this dispute 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 
express their views on an Appellate Body re port".  
8.2.  The representative of the European  Union  said that his delegation welcomed the adoption of 
the Panel Report and the Appellate Body Report in this dispute. This dispute had hopefully put an 
end to Russia's WTO -inconsistent bans on live pigs, pork and  certain pig products from the EU, due 
to the 2014 outbreak of African swine fever in four EU member States neighbouring Russia. The 
EU wished to recall certain aspects of this dispute given that Russia's SPS -inconsistent bans 
affected trade worth EUR  1.4 billion or 24% of the EU's total pork exports in 2013. Russia had 
been the biggest export destination for pork from the EU until 2013, before Russia had decided to 
block those imports. For the EU, this significant trade was a sign of the trust that had bee n built up 
between the EU and the Russian veterinary services over the years. Despite the years of trust that 
Russia's competent services had placed in the EU's control and surveillance systems, Russia had 
blocked trade not only from the affected EU member  States near Russia, from where the disease 
had spread into the EU, either directly or via Belarus, but from the entire EU. This included places 
thousands of kilometres away from the outbreaks and regions that were historically free from the 
disease.  
8.3.  The E U noted that t he Russian bans were not temporary , to be lifted once the technical 
experts had studied and verified all information that had been submitted by the EU in real time. 
These bans had been imposed permanently. They were still in place more than three years after 
their imposition – with no case of African swine fever having occurred in any other member State 
than the four affected member States. From Russia's press statements, it appeared that the bans 
were useful in the framework of Russia's overa ll policy of substituting imports for its own 
production. The Panel had found that the EU -wide ban neither conformed to, nor was based on, 
international standards and that Russia had not carried out a risk assessment. The Panel had also 
found that the EU -wide ban was more trade restrictive than necessary to protect animal health. 
Moreover, although the EU had objectively demonstrated to Russia that there were areas within 
the EU that were disease -free and were likely to remain disease -free, Russia had not a dapted its 
SPS measures to the regional conditions in the EU and in Russia. The Appellate Body had 
confirmed this and was not distracted by Russia's attempt to forward some formal reasoning that, 
because the EU -Russia export certificate had not been endors ed in Russian legislation, the ban 
could not be attributed to Russia. In relation to the bans on the four affected member States, the 
Panel had found the same violations except in relation to non -treated products from Latvia where 
the EU had not submitted all necessary information on time to Russia by the date defined by the 
Panel as the cut -off date for the assessment of the case. This had been remedied in the meantime 
so that Russia was also in a position to make its assessment in relation to non -treated products 
from Latvia. The Appellate Body had also provided some helpful clarifications to the interpretations 
of Article  6.2 of the SPS  Agreement by pointing out that a merely "abstract" recognition of the 
concept of regionalisation in the domestic legal f ramework was not sufficient as such to claim 
consistency with the obligation in Article  6.2 of the SPS Agreement in all cases. In light of those 
facts, the EU urged Russia to immediately bring itself into compliance and to allow trade of safe EU 
products t o take place without further delay. The EU would not accept any attempt to unduly delay 
the implementation.  
8.4.  The representative of the Russian  Federation  said that her country wished to thank the Panel, 
the Appellate Body, and the Secretariat staff assistin g them for their hard work in this dispute. The WT/DSB/M/394  
 
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  Reports covered numerous issues under the SPS Agreement, some of which had not been clarified. 
This was the first dispute involving an active outbreak of a highly contagious disease that had 
continued to evol ve rapidly in the course of the dispute. The unique features of this dispute had 
led to some important findings in relation to Article  6 of the SPS Agreement. In particular, the 
Appellate Body had clarified the balance between the rights and obligations of  importing and 
exporting Members under Article  6 of the SPS Agreement, which was of systematic importance to 
all Members. Specifically, the Appellate Body had agreed with the Russian  Federation that the 
importing Member – and not the Panel – had to ultimat ely assess the evidence provided by the 
exporting Member and make a determination as to whether there existed pest - or disease -free 
areas. The Appellate Body had clarified that this determination had to be made pursuant to the 
second sentence of Article  6.2 of the SPS Agreement – and not Article  6.3 of the SPS Agreement. 
It had also agreed with the Russian Federation that this assessment required a "reasonable period 
of time" which was, contrary to the EU's arguments, not contingent on meeting the condition s 
under Article  5.7 of the SPS Agreement. In addition, the Appellate Body had agreed with the 
Russian Federation's argument that whether an exporting Member had provided sufficient evidence 
must be determined in light of the importing Member's appropriate level of protection (ALOP).  
8.5.  Moreover, the Appellate Body had agreed with the Russian  Federation that findings that an 
exporting Member, under Article  6.3 of the SPS Agreement, had failed to provide the necessary 
evidence must have an impact on a Member's o bligation under Article  6.1 of the SPS Agreement. 
The Russian  Federation noted that the Appellate Body had also helpfully clarified the relationship 
between a risk assessment under Article  5.1 of the SPS Agreement and the risk assessment under 
Article  6 of the SPS Agreement. Contrary to the EU's arguments, the Appellate Body had found 
that while the assessment of the existence of, or likelihood of, disease -free areas in zones, 
regions, countries or compartments could be conducted as part of an Article  5.1 risk assessment, it 
had clarified that it did not have to be part of an Article  5.1 risk assessment. Despite important 
clarifications to the jurisprudence under Article  6 of the SPS Agreement, the Russian  Federation 
was concerned that the Appellate Body's i nterpretation of Article  6.3 appeared to have reduced its 
scope to a means of collecting information from exporting Members without any additional 
substantive implications. The Russian  Federation said that it continued to believe that such an 
interpretatio n was contrary to the ordinary meaning of Article  6.3 of the SPS Agreement.  Finally, 
the Russian  Federation said that it regretted that the Appellate Body had not given the appropriate 
meaning and deference to its Accession Protocol vis -à-vis its obligatio ns under the covered 
agreements. Paragraph  893 of the Russian  Federation's Accession Protocol established the validity 
of the EU -Russia bilateral veterinary certificates. In Russia's view, the Appellate Body had not 
struck a balance between the rights and obligations set out in a Member's Accession Protocol and 
the rights and obligations set out in the covered agreements. This lack of balance resulting from 
the respective conclusions of the Appellate Body and of the Panel gave priority to Members' 
obligatio ns under the covered agreements over commitments in Members' Accession Protocols. 
Russia said that it was carefully evaluating the Reports of the Panel and of the Appellate Body. 
While adhering to its policy goals on prevention of the spread of this highly  contagious disease, 
Russia was committed to acting consistently with the findings of the Panel and of the Appellate 
Body.  
8.6.  The DSB took note  of the statements and adopted  the Appellate Body Report contained in 
document WT/DS475/AB/R and Add.1 and the Panel  Report contained in document WT/DS475/R 
and Add.1, as modified by the Appellate Body Report.  
9  APPELLATE BODY APPOI NTMENTS  
A.  Statement by the Chairman  
9.1.  The Chairman  recalled that the second four -year term of Mr. Ricardo Ramírez Hernández 
would expire on 30  June 2017, and the second four -year term of Mr. Peter Van den Bossche would 
expire on 11  December  2017. Pursuant to Article  17.2 of the DSU they were not eligible for 
reappointment and the DSB would have to decide on the appointments of two new Appellate Body 
members to replace the incumbents. At the 25  January  2017 DSB meeting, the Chairman had 
outlined two possible approaches to fill the upcoming vacancies in the Appellate Body. Following 
the 25  January  2017 meeting, he had consulted with Members on poss ible approaches and on the 
elements outlined with respect to the two vacant positons. In the course of his consultations 
several delegations had supported one single selection process. However, two delegations had 
expressed a preference for two independent  processes. One delegation had suggested that the WT/DSB/M/394  
 
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  DSB could start one selection process to fill the vacancy that would expire in June  2017 and that 
more time could be given to address the second vacancy. It was the Chairman's understanding, 
however, that t hose supporting one single selection process would only agree to two independent 
processes if the work on both could be completed before the summer break or if there was prior 
clarity on the process and timing of both. He recalled that at the 20  February  2017 DSB meeting, 
he had indicated his intention to consult with delegations with a view to submitting a proposal to 
the DSB in March, on the procedural steps and the possible time -table for launching the process or 
processes. At the present meeting he wish ed to report that he had consulted with several 
delegations on these matters but, unfortunately, it had not been possible to come to an agreement 
on the way forward. Therefore, the Chairman's consultations would have to continue. In this 
regard, he had alr eady briefed his successor who would be taking over the Chairmanship of the 
DSB and who would continue the process of consultations in order to find a way forward.  
9.2.  The representative of Australia  said that her country was disappointed that the DSB was not 
in a position to launch the process for the appointment of new Appellate Body members at the 
present meeting. Australia appreciated the importance of maintaining a full complement of 
Appellate Body members. All Members were aware of the workload pressures under which the 
Appellate Body continued to operate and had a vital interest in the effective functioning of the 
Appellate Body. Members should all seek to ensure that the Appellate Body was not required to 
continue for a prolonged period at less than its full capacity. Australia noted that whatever process 
would ultimately be adopted by the DSB, Members' overriding interest must be to support and 
reinforce the effective functioning of the Appellate Body. This should be achieved by an effective, 
transparent , and merits -based process to determine the appointment of new Appellate Body 
members, consistent with past practice. The timely appointment of new Appellate Body members 
played an essential part in allowing the Appellate Body to continue to fulfil its pro per role. Australia 
encouraged all Members to take a flexible and pragmatic approach and to work together to reach 
agreement on a process to ensure the timely appointment of members to the Appellate Body.  
9.3.  The representative of the European  Union  said that his delegation wished to refer to its 
statement made at the 20  February  2017 DSB meeting. The EU said that it regretted that the 
selection process for the two vacancies in the Appellate Body arising in 2017 had not yet been 
launched. The EU encouraged the Chairman to continue to consult with delegations in order for the 
selection process to be launched without delay.  
9.4.  The representative of Chile said that his country wished to thank Ambassador Carim for his 
work in chairing the DSB over the past year, which he had done in a very skilful manner. Chile 
wished Ambassador Carim every success in his new role as Chairman of the General Council. With 
regard to the Appellate Body  appointments, Chile said that Members had to assume their 
responsibilities and appoint n ew Appellate Body members as soon as possible. He noted that the 
second term of office of Mr.  Ricardo Ramírez Hernández would end on 30  June 2017. However, 
Chile was concerned that although his term was due to end in three  months, it had not yet been 
possible to decide on the timelines and other elements of the process to select his successor. This 
situation was unacceptable. In addition to this systemic concern, Chile had a direct interest in the  
matter as it intended to put forward a candidate. The Latin American and Caribbean region was 
equally concerned about this situation. Thus far, no explanation had been provided for the delay. 
Chile understood that other countries in the region were also interested in nominating 
highly -qualified candidates. Thus, th e region had demonstrated that it had responded seriously to 
this challenge and that it was ready to participate in the new selection process. Chile hoped that 
the process to replace Mr.  Ramírez, who had performed his Appellate Body  responsibilities in a 
commendable manner, would start soon, and that a new Appellate Body  member would come from 
the Latin  American and Caribbean region. Chile hoped that Members would meet their 
responsibilities and begin a new selection process without any delay so as to prese rve the efficient 
functioning of the dispute settlement mechanism.  
9.5.  The representative of Guatemala  said his country shared the concerns expressed by other 
delegations with regard to the delay in starting the selection process to replace Mr. R. Ramírez 
Hernández, whose second term of office was due to expire on 30  June 2017. Guatemala remained 
flexible as to whether the selection processes should be carried out simultaneously or sequentially. 
Guatemala shared the view that it would be more efficient to carry  out the selection processes 
simultaneously to fill the two vacancies in the Appellate Body in 2017, as long as the two 
processes remained separate. One process should be carried out to fill the Latin American vacancy 
and the other to fill the European vac ancy. Guatemala believed that without a consensus to WT/DSB/M/394  
 
- 14 - 
 
  conduct both processes simultaneously, the DSB should begin the selection process to fill the 
vacancy of the Appellate Body member whose term of office w as to expire first. Guatemala 
recognized that the rules did not specify any deadlines within which selection processes should 
take place. However, it was Guatemala's understanding that it was both good practice and 
common sense to allow a reasonable period of time in order to interview candidates. This wo uld 
enable interested Members to provide informed views before the Selection Committee with regard 
to their preferences on candidates. In view of the above, Guatemala urged the DSB to take a 
pragmatic approach. It was important not only to reconcile the ne ed for prompt selection of the 
replacement for Mr . Ricardo Ramírez Hernández, whose term of office was about to expire, but 
also to ensure that delegations had the necessary amount of time to meet and interview 
candidates. Finally, Guatemala thanked Ambass ador Carim for his tireless efforts during the 
consultation process and for his work as Chairman of the DSB.  
9.6.  The representative of New Zealand  said that her country thanked the Chairman for his 
progress report and efforts to find consensus. Like other Memb ers, New  Zealand was disappointed 
with the current situation. It urged Members to be pragmatic and to agree on a process for  2017 
appointments as soon as possible. If Members could not find agreement on a process for the 
appointment of new members to the A ppellate Body, time would run out and Members would soon 
find themselves, once again, in the regrettable position of carrying a vacancy in the Appellate 
Body. This was particularly concerning at a time where there was increased workload pressure on 
the dis pute settlement system, a number of appeals already in the queue, and more likely to be 
brought soon. Repeated and lengthy vacancies had the potential to undermine the credibility of the 
WTO dispute settlement system if they led to significant and unexpect ed delay. If the WTO dispute 
settlement system could not produce prompt resolution of disputes, its stakeholders could begin to 
question the benefit of the WTO. This could undermine efforts for ongoing engagement and the 
organization's standing as the pree minent forum for resolving trade and economic disputes. 
New Zealand said that it was prepared to consider any constructive solution that expedited 
appointments and to engage in discussions on how to address other causes of delay in Appellate 
Body hearings.  New Zealand said that it looked forward to working with other Members and the 
incoming Chairman in this regard.  
9.7.  The representative of Peru recalled that, as stated at the 20  February  2017 DSB meeting, 
Peru considered that the best option would be to carry  out one selection process to fill the two 
upcoming vacancies in the Appellate Body. It would also be preferable for the two new Appellate 
Body members to be appointed at the latest by the end of July  2017, prior to the substantive 
preparations for MC11. H owever, if Members wished to pursue another approach, Peru would 
remain flexible. Peru was concerned that the procedures and deadlines for the selection process to 
replace Mr.  Ricardo Ramírez Hernández had not yet been put forward. Peru recalled that the 
selection process to replace Ms  Yuejiao Zhang, whose second term of office had ended on 
31 May 2016, required two months starting from the deadline for nominations of candidates until 
the Selection Committee's recommendation to the DSB. Peru noted that the second term of office 
of Mr.  Ramírez Hernández as an Appellate Body member would end on 30  June 2017. Therefore, if 
Members were to follow past practice, the deadline for nominations of candidates in this new 
process should be set for 15  April 2017, at the  latest. This would give the Selection Committee 
time to carry out its work and to make its recommendations by no later than mid -June 2017. In 
light of these arguments and past practice, Peru believed that the selection process for a 
replacement of Mr.  Ramírez Hernández should start as soon as possible since the Appellate Body 
would need to have a new member as of 1  July 2017.  
9.8.  The representative of Brazil  said that her delegation wished to join the previous speakers 
who had expressed their concerns about th e delay in the launch of the selection process to replace 
Mr. Ramírez, whose term of office would expire on 30  June 2017. Based on past practice of 
starting a selection process several months in advance of an appointment of a new Appellate Body  
member by t he DSB, delegations had expected the selection process to begin in February  2017. 
However, at the end of March, it was uncertain whether and when the process would be initiated. 
Some GRULAC Members, including Brazil, had already announced their intention t o present a 
candidate for the Appellate Body. However, the DSB had not yet agreed on a time -table and 
guidelines for the selection process. This situation created uncertainties. Brazil pointed out that 
some Members had already announced that they would nom inate candidates, while others had not 
yet done so. Some of them had already started campaigning, while others were waiting for the 
formal procedures to be initiated by the DSB. Without any formal decision by the DSB regarding 
the selection process, it was  not clear how to proceed. Brazil hoped that the selection process WT/DSB/M/394  
 
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  would be initiated soon and urged Members that a new selection process be initiated at the next 
DSB meeting.  
9.9.  The representative of Korea  said that his country shared the concerns of other M embers that 
the DSB was not in a position at the present meeting to start the selection process due to a 
procedural matter. Based on past practice, the DSB should have started the selection process in 
February  2017 in order to ensure the timely appointment  of a new Appellate Body member to 
replace the current member whose term of office would expire on 30  June 2017. Pending 
vacancies in the Appellate Body should be avoided as this would unnecessarily burden the dispute 
settlement system. Korea looked forwar d to working with other Members in a pragmatic way so 
that the DSB could start the selection process as soon as possible.  
9.10.   The representative of Mexico  said that the DSU recognized that "the dispute settlement 
system of the WTO is a central element in provi ding security and predictability to the multilateral 
trading system".5 Mexico considered that the proper functioning of the Appellate Body was highly 
important for the operation and credibility of the WTO. Like Chile, Guatemala, Peru and Brazil, 
Mexico was  concerned that the selection process had not been launched on time and pointed out 
that, in the absence of consensus, there had always been a procedure to move forward. Currently 
there were several ongoing appeals and there would be more appeals later in the year. The 
workload of the Appellate Body, and the dispute settlement mechanism in general, was expected 
to increase significantly in the future. Mexico, therefore, encouraged Members to identify the 
minimum conditions necessary to initiate an expeditio us process to address the needs, and meet 
the requirements of Members. Finally, Mexico expressed its appreciation to Ambassador Carim for 
his excellent work as Chairman of the DSB. Mexico wished him the best of success in his new role 
as Chairman of the Ge neral Council, during which he would face significant challenges, particularly 
in guiding the WTO membership towards a successful Ministerial Conference in Buenos  Aires, a 
task for which he could count on Mexico's determination and support.  
9.11.   The representat ive of Argentina  thanked the Chairman for his efforts during the consultation 
process and wished him every success in his work as Chairman of the General Council. Argentina 
recalled that initially his country had expressed its preference to carry out one s election process 
for the two Appellate Body  positions at the same time. However, given the present circumstances 
and the limited time, Argentina would not oppose if separate selection processes were to be 
conducted. Argentina recalled that: (i) this was th e third regular DSB meeting in 2017 where this 
matter was on the Agenda; (ii) on 30  June 2017 the mandate of one Appellate Body member 
would expire; and (iii) the dispute settlement system was currently facing a heavy workload. The 
delay in the selection o f a new Appellate Body member would have a negative impact on the 
functioning of the system. Argentina believed that Members should reflect on this matter and 
hoped that they would show flexibility so that the selection process could begin without delay. T he 
process should start as soon as possible because the Selection Committee would have to respect 
certain deadlines in order to allow Members an adequate opportunity to assess nominated 
candidates.  
9.12.   The representative of China  said that his country agreed w ith the previous speakers and 
wished to register its concerns with respect to the delay in this selection process. China attached 
great importance to the functioning of the Appellate Body. Given the heavy workload currently 
faced by the Appellate Body, Chi na encouraged Members to show flexibility so that the DSB could 
launch the selection process as soon as possible in order to ensure the proper functioning of the 
Appellate Body.  
9.13.   The representative of India said that his country echoed the views of other Me mbers who 
had expressed concern over the delay in the initiation of an appointment process for a new 
Appellate Body member. India said that it was not entirely clear on the underlying reasons for the 
impasse since it was not part of either group that was s eeking a single process or independent 
processes. As a matter of clarification, India said that it would be of great value to the membership 
to have information regarding past practice in similar situations. This would provide some guidance 
in resolving th e impasse. India believed that although some Members considered the upcoming 
preparations for MC11 to be a factor in favour of a single process, it would be pragmatic to go 
ahead with filling the first vacancy, as stated by Peru. There were many potential candidates 
already being considered and, as Brazil had stated, they were already canvassing. It was very 
                                                
5 Article  3.2 of the DSU.  WT/DSB/M/394  
 
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  difficult to engage without a clear time -frame for the appointment process. The DSB had had an 
impasse a few months before on the selection of Appellat e Body members, but now the impasse 
was on the process of the appointment itself.  India said that it hoped Members would be flexible 
and would find a way of expediting the process of appointment.  
9.14.   The representative of the United  States  said that his countr y appreciated the information 
provided by the Chairman and looked forward to consulting with the Chairman, and other 
Members, on the process to fill these important positions.  
9.15.   The DSB took note  of the statements.  
10  DISPUTE SETTLEMENT W ORKLOAD  
A.  Statement b y the Chairman  
10.1.   The Chairman , speaking under "Other Business", said that he wished to provide the DSB 
with information about the Appellate Body's workload, the number of disputes before panels, and 
at the panel composition stage, and the ability of the Secr etariat to meet expected demand over 
the coming period. This report reflected the status of disputes up until the present DSB meeting on 
21 March. Other developments in the course of this meeting would be reflected in the information 
posted on the Members'  website. With regard to panels, there were currently 18 active panels 
(including five panels under Article  21.5 of the DSU) that had not yet issued a final report to the 
parties. Multiple disputes that were being considered simultaneously by the same pane l were being 
counted as one. As of the present meeting, all composed panels had been assigned staff to assist 
them and were either active or in the process of commencing proceedings. There were six panels 
at the composition stage, not counting panels for w hich there had been no composition activity in 
the last 12 months. In addition, four final panel reports that had been issued to the parties were 
currently being translated. The Appellate Body was currently dealing with six appeals, including the 
extremely  complex compliance proceedings in "EC and Certain Member States – Large Civil Aircraft 
(Airbus)". Two of these appeals could not be staffed at this point. Up to three additional appeals 
could be filed within the next three months, including an appeal in t he compliance proceedings in 
"US – Large Civil Aircraft (Boeing)". Finally, three matters had been referred to arbitration under 
Article  22.6 of the DSU and one under Article  21.3(c) of the DSU.  
10.2.   The DSB took note  of the statement.  
11  ELECTION OF CHAIRPER SON 
11.1.   The outgoing Chairman  noted that this was the last meeting of the DSB that he would have 
the privilege of chairing and said that he would make a few personal remarks. His experience in 
chairing the DSB over the past year had been an extremely rewarding one,  both personally and 
professionally. In the course of the year, the Chairman had gained a deeper insight into the 
intricacies of the working procedures of the dispute settlement mechanism and at least some new 
insight into the complexities of the legal iss ues related to the enforcement and implementation of 
WTO rules. He said that he had a better appreciation of the significant strengths of the DSU, but 
also some idea of the areas in which Members believed it could be further strengthened. During 
DSB meetin gs over the course of the year, he said that he had repeatedly been struck by the 
quality of delegations' interventions and exchanges. They had demonstrated delegates' capabilities 
in effectively representing matters of great national interest, but always in a manner that revealed 
a high regard for the rules that governed the work of the DSB, and always in an atmosphere of 
mutual respect. The Chairman had detected many instances of a genuine intention to cooperate 
and to search for constructive solutions to  many of the difficulties that had been encountered. This 
was testimony to the professionalism, competence and dedication of the distinguished delegates 
who had participated in these meetings.  
11.2.   The DSB continued to be very busy, as the trend of an increasin g workload from the past 
couple of years carried over into 2016. The Chairman said that it was his understanding that 2016 
was the busiest year on record, with a total of 41 disputes active before panels, the Appellate Body 
or in arbitration. Panels and th e Appellate Body had continued to deliver a significant number of 
reports in 2016: there had been 11 panel reports, six Appellate Body reports and one arbitration 
decision had been issued. While these figures signalled the continued confidence Members plac ed WT/DSB/M/394  
 
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  in the mechanism, it was difficult to ignore the fact that the growing number of disputes placed 
strain on the capacity of the mechanism to deliver on all the terms of its mandate. While the DSB 
work generally proceeded smoothly and efficiently, the DSB  had encountered several challenges in 
the course of the year. Members registered an important achievement in so far as the DSB was 
finally able to agree to the appointment of two new Appellate Body members. The Dedicated 
Sessions the DSB held in the secon d half of 2016 had provided important insights into the views of 
Members in respect of the overall reappointment process. In concluding, the Chairman 
acknowledged the contribution made by the Directors of the Legal Affairs Division, the Rules 
Division and the Appellate Body Secretariat to the work of the DSB over the course of the year. 
The Chairman paid special tribute to Mr. Victor do Prado, Ms Bozena  Mueller -Holyst and the other 
staff members of the CTNC Division for the unstinting support they had given  him over the past 
year. The Chairman said that he was particularly grateful to Ms Bozena Mueller -Holyst for openly 
sharing her considerable knowledge and experience with him. Her patience in explaining and 
guiding the work gave him great comfort in chairi ng the DSB meetings where so many complex 
issues, interests and perspectives were in play. He also took this opportunity to thank the 
interpreters for their contribution. He then recalled that, on the basis of the understanding reached 
by the General Counc il on 27  February  2017 with regard to the appointment of officers to WTO 
bodies with respect to the Chairman of the DSB, he proposed that the DSB elect by acclamation 
Ambassador  Junichi Ihara of Japan as Chairman of the DSB.  
11.3.   The DSB so agreed . 
11.4.   The incoming  Chairman  thanked Members for their confidence in appointing him as the new 
Chair of the DSB. He said that he was honoured to have the opportunity to serve as Chairman of 
the DSB and recognized the importance of the dispute settlement system for the entire  multilateral 
trading system. He said that with the full support of delegations, as well as that of the Secretariat, 
he would do his best to carry out his mission. As Ambassador Carim had stated, and many 
delegations had just indicated, one of the most urg ent tasks for the DSB, and in particular for the 
Chairman, was the appointment of the two new Appellate Body members. He would continue the 
process of consultations so as to be able to submit the proposal to the DSB as soon as possible. 
Finally, the Chairm an thanked Ambassador Carim for everything that he had done as Chairman 
over the past year and wished him all the best in his new role as the Chairman of the General 
Council.  
11.5.   The representative of the Kingdom  of Saudi  Arabia  thanked Ambassador Carim for hi s 
significant contribution to the DSB and his leading role over the past year. Saudi  Arabia 
congratulated Ambassador Ihara on his appointment as the new Chair of the DSB. The 
appointment of Ambassador Ihara demonstrated that Members placed in him their con fidence and 
trust in chairing this important WTO body. Saudi  Arabia said that Ambassador Ihara could count on 
its full support.  
11.6.   The representative of Japan  said that his country wished to thank Ambassador  Carim for his 
service as Chairman of the DSB. As Am bassador Carim had described, it had been a challenging 
year for the DSB and the WTO dispute settlement system, but, under his leadership, the DSB had 
been able to live up to the challenge and manage the proper administration of the dispute 
settlement proc edures as expected. Japan wished Ambassador Carim all the best in his next 
endeavor as Chairman of the General Council. Japan also welcomed Ambassador Ihara as the new 
Chairman of the DSB and looked forward to working with him.  
11.7.   The representative of Korea  said that his country appreciated the dedicated service and able 
leadership of Ambassador Carim during a very challenging period for the dispute settlement 
system, including the issues related to the Appellate Body, and wished him every success as 
Chairman  of the General Council. Korea welcomed Ambassador Ihara as the new Chairman of the 
DSB and wished him all the best in his new responsibilities.  
11.8.   The representative of Mexico  said that his country wished to welcome and congratulate 
Ambassador Junichi Ihara for taking on the role of Chairman of the DSB for 2017. The challenges 
awaiting the DSB were significant, as had been evidenced by Agenda item  9 regarding the 
Appellate Body appointments. Mexico said it was fully prepared to support and collaborate with 
Ambassador  Ihara, and with the rest of the membership, to duly address this situation and other 
issues that could arise during Ambassador  Ihara's time as the new Chairman of the DSB in order 
to ensure that his term was successful.  WT/DSB/M/394  
 
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  11.9.   The representative of the United States  said that his country would like to take this 
opportunity to congratulate Ambassador Ihara on his election, and to extend its welcome to him as 
he assumed the Chairmanship of the DSB. The United  States said that it looked forward to working 
with him over the coming year. The United  States also thanked Ambassador Carim for his many 
contributions to the work of the DSB during the past year.  
11.10.   The representative of Brazil  said that her country joined other Members in thanking 
Ambassador  Carim for hi s kindness, continued efforts, and endless patience in the conduction of 
the work of the DSB. Brazil wished him all the best in his new functions. Brazil also welcomed 
Ambassador  Ihara as the new Chairman of the DSB and reiterated its commitment to working  
constructively with Ambassador Ihara and other Members to ensure the well -functioning of the 
dispute settlement mechanism.  
11.11.   The representative of Uganda  said that his country wished to take this opportunity to 
thank Ambassador Carim for the great work he h ad rendered to the DSB during the time he had 
been the Chairman. Uganda noted that Ambassador Carim had grappled with a number of 
challenges but had managed to keep the DSB afloat. Uganda thanked Ambassador Carim for the 
contribution he had made to the DSB . Uganda welcomed Ambassador Ihara and said that it hoped 
that he would be able put more stones to strengthen the work of the DSB.  
11.12.   The representative of Peru said that his country had already made a statement to thank 
Ambassador  Carim for his tremendous wo rk over the past year. Peru wished Ambassador  Carim 
every success in his role as Chairman of the DSB and said that Ambassador Ihara could count on 
Peru's support to ensure his success.  
11.13.   The representative of Guatemala  said that, like other delegations, his country wished to 
thank Ambassador Carim for his Chairmanship over the past year and congratulated 
Ambassador  Ihara on his appointment as the new Chairman of DSB. Guatemala wished 
Ambassador  Ihara every success and assured him of its support. As had been m entioned by other 
delegations, Guatemala also wished Ambassador Carim every success as Chairman of the 
General  Council and thanked him for his leadership over the course of the year which had been an 
important one in many respects.  
11.14.   The representative of Chile said that his delegation had already thanked 
Ambassador  Carim for his Chairmanship. Chile congratulated Ambassador Ihara on his 
appointment and wished him every success as the new Chairman of the DSB. Chile expected that 
during Ambassador Ihara's stewa rdship there would be difficult issues to deal with, and Chile 
assured Ambassador Ihara of its support in this regard. Chile hoped that the DSB would be able to 
resolve the issue of the appointment of Appellate Body members as quickly as possible.  
11.15.   The repr esentative of China  said that his country wished to join other Members in thanking 
Ambassador  Carim for his hard work and excellent leadership during the past year as the 
Chairman of the DSB. China noted that the dispute settlement mechanism was the backbo ne of 
the multilateral trading system and that under Ambassador Carim's leadership the DSB had 
functioned well over the past year. China wished Ambassador Carim all the best in the coming 
year. China congratulated Ambassador Ihara on his appointment as the  new Chairman of the DSB 
and assured him of its support in the coming year.  
11.16.   The representative of Colombia  said that his country wished to join other Members in 
thanking Ambassador Carim for the excellent way in which he had chaired the DSB over the past 
year. Colombia wished Ambassador Carim every success in his new role as the Chairman of the 
General  Council. Colombia welcomed Ambassador Ihara, wished him a successful period as 
Chairman of the DSB and assured him of its full support in chairing the work o f the DSB.  
11.17.   The representative of the Russian  Federation  said that her country wished to join other 
Members in thanking Ambassador Carim for his leadership, wisdom and patience during very 
challenging times for the DSB. Russia wished him all the best in his  new position. Russia also 
congratulated Ambassador Ihara on his appointment and wished him success in his role as the 
DSB Chairman.  WT/DSB/M/394  
 
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  11.18.   The representative of Morocco  said that, as his country had already stated at the meeting 
of the General Council on behalf of the African Group, Morocco would like to join other speakers 
who had thanked Ambassador Carim for his contribution to the work of the DSB over the past 
year. Morocco congratulated Ambassador Ihara on his appointment as Chairman of the DSB and 
assured hi m of its support.  
11.19.   The representative of Moldova  said that her country wished to express its gratitude and 
appreciation for the work done by Ambassador Carim and his sincere desire to find a compromise 
amongst Members during a very challenging period of the  DSB's work. Moldova wished 
Ambassador  Carim every success in his new role as Chairman of the General Council. Moldova 
welcomed Ambassador Ihara, congratulated him for assuming this important position and wished 
him every success in his new role. Moldova l ooked forward to working with Ambassador Ihara and 
would support him in his efforts to move forward with the issue of appointments of new Appellate 
Body members.  
11.20.   The representative of the European  Union  said that his delegation wished to join other 
delegat ions in expressing its thanks to the outgoing Chairman of the DSB and in congratulating 
him for all the achievements and successes that the DSB had managed to achieve under his 
leadership. The EU welcomed Ambassador Ihara in his new role and assured him th at the EU would 
support him in any way it could in the successful performance of his tasks.  
11.21.   The representative of Honk Kong,  China  said that her delegation would like to join others 
in thanking Ambassador Carim for his dedicated efforts over the past year and wished him all the 
best in his new role as the Chairman of the General Council. Hong Kong, China expressed its warm 
welcome to Ambassador Ihara as the newly elected DSB Chairman and wished him every success 
for his new appointment.  
11.22.   The incoming Chairma n thanked all delegations for their kind words and warm wishes to 
him as well as to Ambassador Carim. He said that he would need Members' support and 
cooperation to discharge his responsibilities as Chairman of the DSB. He looked forward to working 
closely  with all Members in the year ahead.  
11.23.   The DSB took note  of the statements.  
__________