RESTRICTED  
  
WT/DSB/M/421  
 
2 April 2019  
(19-2062) Page: 1/49 
Dispute Settlement Body  
21 November 2018    
 
MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 21  NOVEMBER  2018 
Chairperson: Ms. Sunanta Kangvalkulkij (Thailand)  
Prior to the adoption of the Agenda , the item concerning the adoption of the Panel Report in the 
dispute on: "Colombia – Measures Relating to the Importation of Textiles, Apparel and Footwear: 
Recourse to Article 21.5 of the DSU by Colombia/Recourse to Article 21.5 of the DSU by Panama" 
(DS461) was removed from the proposed Agenda following Panama's decision  to appeal the Panel 
Repor t. Also , the item concerning the adoption of the Panel Report in  the dispute on:  "Morocco – 
Anti-dumping Measures on Certain Hot -Rolled Steel from Turkey" (DS513) was removed from the 
proposed Agenda following Morocco's decision to appeal the Panel Report.   
 
Table of Contents  
1   SURVEILLANCE OF IMPLEMENTATION OF RE COMMENDATIONS ADOPTE D  
BY THE  DSB ................................ ................................ ................................ ......................  3 
A.  United  States – Anti-dumping measures on certain hot -rolled steel products  
from Japan: Status report by the United  States  ................................ ................................ ..... 4 
B.  United  States – Section  110(5) of the US Copyright Act: Status report by  
the United  States  ................................ ................................ ................................ ................  4 
C.  European  Communities – Measures affecting the approval and marketing  
of biotech products: Status report by the Euro pean Union  ................................ .......................  5 
D.  United  States – Anti-dumping and countervailing measures on large  
residential washers from Korea: Status report by the United  States  ................................ .........  6 
E.  European  Union – Anti-dumping measures on biodiesel from Indonesia:  
Status report by the European  Union  ................................ ................................ .....................  7 
F.  United  States – Certain methodologies and their application to  
anti-dumping proceedings involving China: Status report by the United  States  ...........................  7 
G.  Indonesia – Measures concerning the importation of chicken meat  
and chicken products: Status report by Indonesia  ................................ ................................ ... 8 
H.  United  States – Anti-dumping measures on certain oil country tubular goods  
from Korea: Status report by the United  States  ................................ ................................ ...... 9 
2   UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  OF 2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE  DSB ........................  10 
A.  Statement by the European  Union  ................................ ................................ ................... 10 WT/DSB/M/421  
 
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  3   EURO PEAN  COMMUNITIES AND  CERTAIN MEMBER STAT ES – MEASURES  
AFFECTING TRADE IN L ARGE CIVIL AIRCRAFT:  IMPLEMENTATION OF T HE 
RECOMMENDATIONS ADOP TED BY THE DSB  ................................ ................................ .. 11 
A.  Statement by the United  States  ................................ ................................ ...................... 11 
4   RUSSIAN  FEDERATI ON – MEASURES ON THE  IMPORTATION OF LIVE  PIGS,  
PORK AND OTHER  PIG PRODUCTS FROM T HE EUROPEAN  UNION  ................................ ... 12 
A.  Recourse to Article  21.5 of the DSU by the European  Union: Request for the establishment of a 
panel   ................................ ................................ ................................ .......................... 12 
5   CHINA – CERTAIN MEASURES CONCERNING THE PROTECTION OF  
INTELLECTUAL PROPERT Y RIGHTS  ................................ ................................ ................  13 
A.  Request for the establishment of a panel by the United  States  ................................ ............ 13 
6   UNITED  STATES – CERTAIN MEASURES ON STEEL AND ALUMINIUM PRODUCTS  ....... 14 
A.  Request for the establishment of a panel by China  ................................ ............................ 14 
7   UNITED  STATES – CERTAIN MEASURES ON STEEL AND ALUMINIUM PRODUCTS  ....... 17 
A.  Request for the establishment of a panel by the European  Union ................................ ......... 17 
8   UNITED  STATES – CERTAIN MEASURES ON STEEL AND ALUMINIUM PR ODUCTS  ....... 19 
A.  Request for the establishment of a panel by Canada  ................................ .......................... 19 
9   UNITED  STATES – CERTAIN MEASURES ON STEEL AND ALUMINIUM PRODUCTS  ....... 20 
A.  Request for the establishment of a panel by Mexico  ................................ ........................... 20 
10   UNITED  STATES – CERTAIN MEASURES ON  STEEL AND ALU MINIUM PRODUCTS  ..... 22 
A.  Request for the establishment of a panel by Norway  ................................ .......................... 22 
11   UNITED  STATES – CERTAIN MEASURES ON  STEEL AND ALUMINIUM  PRODUCTS  ..... 23 
A.  Request for the establishment of a panel by the Russian  Federation  ................................ ....23 
12   CANADA – ADDITI ONAL DUTIES ON CER TAIN PRODUCTS FROM T HE  
UNITED STATES  ................................ ................................ ................................ .............  25 
A.  Request for the establishment of a panel by the United  States  ................................ ............ 25 
13   CHINA – ADDITIO NAL DUTIES ON CERTAI N PRODUCTS FROM THE  
UNITED STATES  ................................ ................................ ................................ .............  26 
A.  Request for the establishment of a panel by the United  States  ................................ ............ 26 
14   EUROPEAN UNION – ADDITIONAL DUTIE S ON CERTAIN PRODUCT S FROM  
THE UNITED  STATES  ................................ ................................ ................................ ...... 27 
A.  Request for the establishment of a panel by the United  States  ................................ ............ 27 
15   MEXICO – ADDITI ONAL DUTIES ON CERTA IN PRODUCTS FROM THE   
UNITED  STATES  ................................ ................................ ................................ .............  29 
A.  Request for the establishment of a panel by the United  States  ................................ ............ 29 
16   UNITED  STATES – CERTAIN MEA SURES ON STEEL AND A LUMINIUM PRODUCTS  ..... 30 
A.  Request for the establishment of a panel by Turkey  ................................ ........................... 30 
17   UNITED  STATES – CERTAIN MEASURES ON  STEEL AND ALUMINIUM  PRODUCTS  ..... 31 
A.  Request for the establishment of a panel by India  ................................ ............................. 31 
18   UNITED  STATES – CERTAIN MEASURES ON  STEEL AND ALUMINIUM  PRODUCTS  ..... 33 
A.  Request for the establishment of a panel by Switzerl and ................................ .................... 33 WT/DSB/M/421  
 
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  19   ADOPTION OF THE  2018 DRAFT ANNUAL R EPORT OF THE DISPUTE  SETTLEMENT 
BODY ................................ ................................ ................................ .............................  34 
20   PROPOSED NOMINA TION FOR THE INDICAT IVE LIST OF GOVERNME NTAL  
AND NON -GOVERNMENTAL  PANELISTS  ................................ ................................ ..........  35 
21   APPELLATE BODY APPO INTMENTS: PROPOSAL B Y ARGENTINA; AUSTRAL IA; THE 
PLURINATIONAL STATE OF BOLIVIA; BRAZIL; CANADA; CHILE; CHINA ; COLOMBIA; 
COSTA  RICA; DOMINICA N REPUBLIC; ECUADOR;  EGYPT; EL  SALVADO R; THE 
EUROPEAN  UNION; GUAT EMALA; HONDURAS; HON G KONG, CHINA; ICELA ND; INDIA; 
INDONESIA; ISRAEL; K AZAKHSTAN; KOREA; LI ECHTENSTEIN; MEXICO;  NEW  ZEALAND; 
NICARAGUA; NORWAY; P AKISTAN; PANAMA; PAR AGUAY; PERU; THE 
RUSSIAN  FEDERATION; SINGAPORE; SWITZERLA ND; THE  SEPARATE CUSTOMS 
TERRITORY OF TAIWAN,  PENGHU, KINMEN AND MATSU; THE FORMER YU GOSLAV 
REPUBLIC OF MACEDONI A; TURKEY; UKRAINE; URUGUAY; THE BOLIVAR IAN REPUBLIC 
OF VENEZUELA AND VIE T NAM  ................................ ................................ ......................  35 
22   RIGHT OF A MEMB ER TO DECIDE THE COM POSITION OF ITS DELE GATION  
FOR CONSULTATIONS: S TATEMENT BY CHINA  ................................ ...............................  41 
23   INDONESIA - SAFEGUARD ON CERTAIN IR ON OR STEEL PRODUCTS  .......................  48 
A.  Statement by Indonesia  ................................ ................................ ................................ .48 
 
1  SURVEILLANCE OF IMPL EMENTATION OF RECOMM ENDATIONS ADOPTED BY T HE 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.189)  
B.  United  States – Section  110(5) of the US Copyright Act: Status report by the United  States 
(WT/DS 160/24/Add.164)  
C.  European  Communities – Measures affecting the approval and marketing of biotech products : 
Status report by the European  Union ( WT/DS 291/37/Add.127)  
D.  United  States – Anti-dumping and countervailing measures on larg e residential washers from 
Korea: Status report by the United  States ( WT/DS 464/17/Add.11)  
E.  European  Union – Anti-dumping measures on biodiesel from Indonesia: Status report by the 
European  Union ( WT/DS 480/8/Add.3)  
F.  United  States – Certain methodologi es and their application to anti -dumping proceedings 
involving China: Status report by the United  States ( WT/DS 471/17/Add.3)  
G.  Indonesia – Measures concerning the importation of chicken meat and chicken products : Status 
report by Indonesia ( WT/DS 484/18/A dd.2)  
H.  United  States – Anti-dumping measures on certain oil country tubular goods from Korea: Status 
report by the United  States ( WT/DS 488/12/Add.2)  
1.1.  The Chairperson  noted that there were eight sub -items under this Agenda item concerning 
status reports s ubmitted by delegations pursuant to Article  21.6 of the DSU. She recall ed that  
Article  21.6 require d that: " [u]nless the DSB decides otherwise, the issue of implementation of the 
recommendations or rulings shall be placed on the Agenda of the DSB meeting a fter six  months 
following the date of establishment of the reasonable period of time … and shall remain on the DSB's 
Agenda until the issue is resolved".  Under this Agenda item, she invite d delegations to provide 
up-to-date information about their compliance efforts. She also  remind ed delegations that, as 
provided for in Rule  27 of the Rules of Procedure for DSB meetin gs: "[r] epresentatives 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".  She then  turned to the first status report under this Agenda item.  WT/DSB/M/421  
 
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  A.  United  States – Anti-dumping me asures on certain hot -rolled steel products from 
Japan: Status report by the United  States (WT/DS184/15/Add.189)  
1.2.  The Chairperson  drew attention  to document WT/DS184/15/Add.189 , which contained the 
status report by the United States on progress in the imple mentation of the DSB's recommendations 
in the case concerning 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 st atus report 
in this dispute on 8  Novem ber 2018, in accordance with Article 21.6 of the DSU. The United States 
had addressed the DSB's recommendations and rulings with respect to the calculation of 
anti-dumping margins in the hot -rolled steel anti -dumping duty investigation at issue. With respe ct 
to the recommendations and rulings of the DSB that had yet to be addressed, the US Administration 
would work with the US Congress with respect to appropriate statutory measures that would resolve 
this matter . 
1.4.  The representative of Japan  said that Japan wished to thank the United States for its most 
recent  status report and the statement made at the present meeting. Japan, once again, called on 
the United States to fully implement the DSB's recommendations and rulings in order to resolve this 
matter .  
1.5.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
B.  United  States – Section  110(5) of the U S Copyright Act: Status report by the 
United  States (WT/DS160/24/Add.164)  
1.6.  The Chairperson  drew attention to document WT/DS160/24/Add.16 4, which contained the 
status report by the United States on progress in the implementation of the DSB's recommendations 
in the case concerning Section 110(5) of the US Copyright Act.  
1.7.  The representative of the United States  said that the United States had provided a status report 
in this dispute on 8 November 2018, in accordance with Article 21.6 of the DSU. The US 
Administration would continue to confer with the EU, and to work closely with the US Congress, in 
order to reach a mutually satisfactory resolution of this matter .  
1.8.  The representative of the European Union  said that the EU wished to thank the United States 
for its status report, as well as for its statement made at the present meeting. The EU wished to 
refer to its statements made at previous DSB meetings under this Agenda item . The EU said that it 
wished  to resolve this case as soon as possible .  
1.9.  The representative of China  said that t he United States had submitted its 165th status report 
for th e present DSB  meeting. Once again, this status report was neither materially different from 
the reports submitted by the U nited States ahead of  previous DSB meetings, nor from the very first 
report  submitted by the U nited States in November 2004. This item h ad stayed on the A genda of 
DSB meetings for a significant amount of  time. There wa s still no implementation action by the 
United States after more than  14 years.  China said that as a result of such persistent 
non-compliance, Section 110(5) of the US Copyri ght Act, which had been found inconsistent with 
the requirements of the Berne Convention and the TRIPS Agreement, was still in effect.  The 
United States continued to fail to accord to intellectual property right holders the minimum standard 
of protection r equired by the TRIPS Agreement. As such, the U nited States remained the only 
Member that failed to implement the DSB's recommendations and rulings under the TRIPS 
Agreement long after the expiration of the reasonable period of time (RPT).  Article II.2 of the 
Marrakesh Agreement Establishing the World Trade Organization provided that: "[t]he agreements 
and associated legal instruments included in Annexes 1, 2 and 3 are … binding on all Members".  
Article 21.1 of the DSU state d that: "[p]rompt compliance with  recommendations or rulings of the 
DSB is essential in order to ensure effective resolution of disputes to the benefit of all Members ". 
China urged the United  States to faithfully honour its commitments under the DSU and the 
TRIPS  Agreement by implementing  the DSB's recommendations and rulings in this dispute.  China 
strongly suggested that the United States consider including in its next status report the specific 
reasons as to why there has been no implementation of the DSB's recommendations and rulings in  
this dispute.  WT/DSB/M/421  
 
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  1.10.   The representative of the United States  said that as the United States had noted at prior 
meetings of the DSB, by intervening under this Agenda item, China attempted to give the 
appearance of concern for intellectual property rights. As the United States had noted at the last 
DSB meeting  of 29 October 2018,  China 's intervention was ironic, given Agenda item 5, the second 
request for establishment of a panel by the United States in the "China – Certain Measures 
Concerning the Protection of Int ellectual Property Rights " dispute (DS542). The United States  said 
that it would address China 's purported interest in protecting intellectual property rights under that 
Agenda item. 
1.11.   The representative of China  said that the US intervention tried to derail the discussion under 
this Agenda item by suggesting that its intellectual property protection was superior to that of China. 
The US  claim lack ed credibility given the simple fact that the United States  had deliberately delayed 
the implementation of the DSB's recommendations and rulings in this dispute  for more than 
14 years. One thing was clear : China ha d fully complied with the TRIPS A greement while the 
United  States  had not. China believe d that until the U nited States faithfully and completely  met its 
obligations  under the TRIPS  Agreement , the comparison suggested by the United States was clearly 
without legal justification. With regard to t he false claims against China 's protection of intellectual 
property ri ghts. China wished to  refer to its statement made at  the 28 May 2018  DSB m eeting. As 
always, China welcome d and wa s willing to engage in good faith and objective discussions with other 
Members on intellectual property issues. China wished to  emphasize again that the issue was 
whether the United States had implemented the DSB's recommendations and rulings in this dispute. 
China said that the answer was negative. China, once again, urged the United States to faithfully 
and promptly honour  its implementation obligation.   
1.12.   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.127)  
1.13.   The Chairperson  drew attention to document WT/DS291/37/Add.12 7, 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 ap proval and marketing of 
biotech  products.  
1.14.   The representative of the European  Union  said that t he EU continue d to progress with the 
authori zations where the European Food Safety Authority ha d finalized its scientific opinion and ha d 
concluded that there were no safety concerns. On 3 D ecember2018, four draft authoriz ations – one 
for the renewal of GM oilseed rape1, two for new GM maize2 and one for new cotton3 – would be 
presented for a vote in an EU m ember States Committee. On 7 D ecember 2018, one draft 
authorization on a cut flower4 would be submitted for a vote to the Appeal Committee , as it had 
received "no opinion " in an EU m ember State Committee on 18 October 2018. The EU was committed 
to acting in accordance with its WTO obligations. More generally, an d as the EU had stated many 
times at previous DSB meetings , the EU approval system was not covered by the DSB's 
recommendations and rulings  in this dispute . 
1.15.   The representative of the United  States  said that the  United States thank ed the European 
Union (EU)  for its status report and its statement made at the present meeting . The United States 
remain ed concerned with the EU 's measures affecting the approval of biotech products. Delays 
persist ed and affect ed dozens of applications that ha d been awaiting approval for months or years, 
or that ha d already received approval. Even when the EU finally approve d a biotech product, EU 
member States continue d to impose bans on the supposedly approved product.   As the United States  
had highlighted  at several prior DSB meetings, the EU maintain ed legislation that permit ted EU 
member States to "opt out " of certain approvals, even where the European Food Safety Authority 
(EFSA) ha d concluded that the product was safe.  Of note, at least 17 EU member States , as well as 
certain regions within EU member States, ha d submitted requests to opt out of EU approvals.  The 
United States  further note d a recent public statement issued by the European Union 's Group of Chief 
                                                
1 Renewal of oilseed rape Ms8xRf3 (for feed).  
2 Maize 5307 and Maize MON 87403.  
3 Cotton GHB614xLLCotton25xMON15985.  
4 Carnation Dianthus caryophyllus  L. line FLO -40685 -2. WT/DSB/M/421  
 
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  Scientific Advisors on 13 November 2018, in res ponse to the 25 July 2018 ruling by the European 
Court of Justice ( "ECJ") that addresse d the forms of mutagenesis that qualif ied for the exemption 
contained in EU Directive 2001/18/EC. Th e Directive was a central issue in dispute  in these WTO 
proceedings , and concern ed the Deliberate Release into the Environment of Genetically Modified 
Organisms (GMOs ). The EU Group of Chief Scientific Advisors ' statement recognize d that: "in view 
of the Court 's ruling, it becomes evident that new scientific knowledge and r ecent technical 
developments have made the GMO Directive no longer fit for purpose ". The United States urge d the 
European Union to finally act in a manner that w ould bring into compliance the measures at issue in 
this dispute. The United States furthermore urge d the EU to ensure that all of its measures affecting 
the approval of biotech products, including measures adopted by individual EU member States, were 
based on  scientific principles, and that decisions were taken without undue delay.   
1.16.   The representative of the European  Union  said that no EU m ember State ha d imposed any 
ban. Moreover, under the terms of what the United States refer red to as the "opt-out directive ", a 
member State could adopt measures restricting or prohibiting cultivation only if such measures 
were: in line with EU law ; reasoned, proportional and non -discriminatory ; and based on compelling 
grounds. In any event, the opt -out directive was not cover ed by the DSB 's recommendations and 
rulings  in this dispute . In July 2018, t he European Court of Justice (ECJ) ha d provided an important 
clarification regarding  the scope of application of the GMO legislation in relation to organisms 
obtained by mutagenesi s techniques. The ECJ ha d ruled that organisms obtained by means of new 
techniques  or method s of mutagenesis, which ha d appeared or ha d been mostly developed following  
the adoption of Directive 2001/18 /EC, fell within the scope of that Directive. The European 
Commission was now working to ensure proper implementation of this ruling together with the EU 
member States. Operators in and outside the EU remain ed responsible for ensuring that products 
which were placed on the market were safe and compl ied with all relevant regulatory requirements.   
1.17.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
D.  United  States – Anti-dumping and countervailing measures on large residential 
washers from Kor ea: Status report by the United  States (WT/DS464/17/Add.11)  
1.18.   The Chairperson  drew attention to document WT/DS464/17/Add. 11, which contained the 
status report by the United States on progress in the implementation of the DSB's recommendations 
in the case con cerning anti -dumping and countervailing measures on large residential washers from 
Korea.  
1.19.   The representative of the United  States  said that t he United States had provided a status 
report in this dispute on 8 Novem ber 2018, in accordance with Article  21.6 o f the DSU.  On 
15 December  2017, the US  Trade Representative had requested that the US Department of 
Commerce make a determination under section  129 of the Uruguay Round Agreements Act to 
address the DSB 's recommendations relating to the Department 's countervailing duty investigation 
of washers from Korea. On 18 December  2017, the Department of Commerce had initiated a 
proceeding to make such determination. Following initiation, Commerce had issued initial and 
supplemental questionnaires seeking addi tional information.  On 4 April 2018, Commerce had issued 
a preliminary determination revising certain aspects of its original determination. Following issuance 
of the preliminary determination, Commerce had provided interested parties with the opportunity to 
submit comments on the issues and analysis in the preliminary determination and rebuttal 
comments.  Commerce had reviewed those comments and rebuttal comments and had taken  them 
into account for purposes of preparing the final determination.  On 4 June 2018, Commerce had 
issued a final determination, in which Commerce had revised certain aspects of its original 
determination.  Specifically, Commerce had revised the analysis underlying the CVD determination, 
as it pertain ed to certain tax credit programs, in  accordance with findings adopted by the DSB.  The 
United  States continue d to consult with interested parties on options to address the DSB 's 
recommendations relating to anti -dumping measures challenged in this dispute.   
1.20.   The representative of Korea  said tha t Korea wished to thank the United States for its status 
report and the statement made at the present meeting. Korea wished to refer to its statements 
made at previous DSB meetings. Korea urged the United States to faithfully implement the DSB's 
recommenda tions and rulings in this dispute.  WT/DSB/M/421  
 
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  1.21.   The representative of Canada  said that Canada was concerned that the United States had not 
implemented the DSB's recommendations and rulings in this dispute. In particular, Canada was 
deeply disappointed that, despite the  expiry of the reasonable period of time, the United States 
continued to collect cash deposits from Canadian exporters based on a methodology that had been 
found to be "as such" inconsistent with WTO obligations in this dispute.  
1.22.   The representative of the United  States  said that t he United States t ook note of Canada 's 
statement and w ould convey it to capital. To be clear, however, it was incorrect to suggest that the 
United States ha d taken no action in relation to the anti -dumping findings  in this dispute . As the 
United States had  noted at the present meeting , the United States continue d to consult with 
interested parties on options to address the DSB 's recommendations.  That internal process was 
ongoing.   
1.23.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
E.  European  Union – Anti-dumping measures on biodiesel from Indonesia: Status report 
by the European  Union (WT/DS480/8/Add.3)  
1.24.   The Chairperson  drew attention to document WT/DS480/8/Add. 3, which contain ed the status 
report by the European Union on progress in the implementation of the DSB's recommendations in 
the case concerning anti -dumping measures on biodiesel from Indonesia . 
1.25.   The representative of the European  Union  said that t he European Union (EU) had provided a 
final status report with the precise indication of the publication references of Commission 
Implementing Regulation (EU) 2018/1570 of 18 October 2018 terminating the proceedings 
concerning imports of biodiesel originating in Argentina and Indon esia and repealing Implementing 
Regulation (EU) No 1194/2013. As already mentioned during the 29 October 2018 DSB meeting , 
the Regulation was published in the Official Journal of the European Union on 19 October  2018.5 
According to its Article 4, the aforementioned  Regulation  had entered into force on 20 October 2018.  
No imports of biodiesel in the European Union from Indonesia or Argentina were subject to 
anti-dumping duties  following the entry into force  of the Regulation . The E U wished to reiterate that 
the adoption of this Regulation ensure d the full implementation of the DSB 's recommendations and 
rulings in this dispute.   
1.26.   The representative of Indonesia  said that Indonesia wished to thank the EU for its status 
report  and its statement made at the presen t meeting  regarding its obligation under Article 21.6 of 
the DSU  in this dispute . Indonesia wished to express  its appreciation to the EU for adopting 
Implementing Regulation (EU) 2018/1570 of 18 October 2018 amending Implementing Regulation 
(EU) No 1194/2013  of 19 November 2013 . Indonesia further wished to thank the EU for its 
commitment to reimburse the definiti ve anti -dumping duties and the provisional anti -dumping duties 
that ha d been definitively collected. In this latter connection, Indonesia would also appreciate if the 
EU could swiftly process the requests for reimbursement of the concerned exporters for th e costs 
that they ha d incurred in connection with the relevant court cases.  
1.27.   The DSB took note of the statements.  
F.  United  States – Certain methodologies and their application to anti -dumping 
proceedings involving China: Status report by the United  State s (WT/DS471/17/Add.3)  
1.28.   The Chairperson  drew attention to document WT/DS471/17/Add. 3, which contain ed the 
status report by the United States on progress in the implementation of the DSB's recommendations 
in the case concerning certain methodologies and their  application to anti -dumping proceedings 
involving China . 
1.29.   The representative of the United  States  said that t he United States had provided a status 
report in this dispute on 8  November  2018, in accordance with Article  21.6 of the DSU. As explained 
                                                
5 OJ L 262, 19.10.2018, p. 40.  WT/DSB/M/421  
 
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  in that report, the United States continue d to consult with interested parties on options to address 
the DSB 's recommendations.   
1.30.   The representative of  China  said that  the Appellate Body R eport in this dispute  had been  
circulated to Members  on 11 May 2017 . On 22 Ma y 2017, the DSB had adopted the Appellate Body  
Report  and the Panel Report, as modified by the App ellate Body R eport. The Arbitration pursuant to 
Article 21.3(c) of the DSU had determined the reasonable period of time (RPT) to be 15 months . 
The RPT had expired on 22 August 2018. Thus far, the U nited States had submitted four status 
reports . None of the  status reports  indicate d any substantive implementation progress by the United 
States to address the DSB 's recommendations in this dispute other than "consulting with the 
interested parties ". China was again very disappointed and deeply concerned with the failure by the 
United States to implement the DSB's recommendations and rulings. The WTO -inconsistent 
measures taken by the US had seriously infringed China 's legitimate economic and trade interests, 
distorted the relevant international market as well as seriously damaged the rule s-based 
multilateral  trading system . This should alert all Members and th e international community. On 
9 September 2018, China  had requested authorization from the DSB to suspend concessions or other 
obligations and the matter ha d been referred to arbitration in line with the Article 22.6 of  the DSU. 
China once again urged  the United States to take concrete actions, comply with  WTO rules, and 
faithfully implement the DSB's recommendations and rulings in this dispute in order to fully comply 
with its obligations under the covered agreements.   
1.31.   The representative of  the United  States  said t hat the United States took note of China 's 
statement and would  convey it to capital. The United States was willing to discuss this matter with 
China on a bilateral basis. To be clear, however, it was incorrect to suggest that the United  States 
had taken no action. As the United States had  reporte d to the DSB, the United  States continue d to 
consult with interested parties on options to address the DSB's recommendations. That internal 
process was ongoing .  
1.32.   The representative of  China  said that China note d that the United States  had repeatedly 
expres sed its willingness to discuss its implementation of the DSB 's recommendations and rulings in 
this dispute with China. Regrettably, such good words  never translated  into concrete action. 
Although China  encourage d the United States  to expedite its internal process, that process itself did 
not qualify as  action in terms of WTO implementation. Th e following was  a clear -cut question: had 
the United States  completely hono ured its implementation obligation in this dispute ? The answer  to 
that question was negative. Three months after the expiry of the RPT, the United States  still kep t its 
inconsistent measures intact at the expense of China's  businesses and workers. As Article 21.1 of 
the DSU stated:  "[p]rompt compliance with recommendations or rulings of  the DSB is essential in 
order to ensure effective resolution of disputes to the benefit of all Members ". China  therefore urge d 
the United States to  faithfully and promptly bring its measures into conformity  with its WTO 
obligations , rather than further de lay the process of implement ing the DSB's recommendations and 
rulings .  
1.33.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
G.  Indonesia – Measures concerning the importation of chicken meat and chicken 
products: Status report by Indonesia (WT/DS484/18/Add.2)  
1.34.   The Chairperson  drew attention to document WT/DS484/18 /Add.2 , which contain ed the 
status report by Indonesia on progress in the implementation of the DSB's recommendations in the 
case on measures concer ning the importation of chicken meat and chicken products . 
1.35.   The representative of Indonesia  said that her country  had submit ted its status report in this 
dispute in accordance with Article  21.6 of the DSU.  On 22 November 2017, the DSB had adopted 
the recommendations and rulings in this dispute . At the 22 January 2018  DSB meeting, Indonesia 
had informed the DSB of its intention to implement the recommendations and rulings of the DSB in 
this dispute . Indonesia and Brazil had also informed the DSB, on 15  March 2018, of their agreement 
regarding  the reasonable period of time (RPT) for Indonesia to implement the recommendations and 
rulings of the DSB. Th e RPT  in this dispute had elapse d on 22 July 2018. Indonesia ha d undertaken 
the necessary steps to adjust  the relevant measures by amendi ng its regulations, namely: 
(i) Ministry of Agriculture Regulation No.  23/2018, which entered i nto force on 24  May 2018; and WT/DSB/M/421  
 
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  (ii) Ministry of Trade Regulation No.  65/2018, which entered into force on 31  May 2018.  Indonesia 
had notified these regulations to the Committee o n Import Licensing on 1 3 August  2018 in 
document s G/LIC/N/2/IDN/39 and G/LIC/N/2/IDN/41.  Indonesia wished to thank  Brazil for its 
statement s made at  previous DSB meetings  in response  to its  previous status r eport s. Indonesia 
said that it had already explained to Brazil that all animal products , whether they were included in 
or excluded from the annex es to the aforementioned R egulations , were allowed to be imported. 
Importers c ould then  modify any information contained in their recommendation and import 
approval s at any time without any sanction. With regard to the distribution plan, Indonesia's  
domestic producers also needed to have a  plan for their products to be distributed. Indonesia wished 
to thank Brazil for having respond ed to a new questionnaire on country approval s in order to import 
chicken meat and chicken products.  Regard ing the process, the Ministry of Agriculture was currently 
conducting an internal examination . This process would be f ollowed by a risk analysis process to be 
conducted by a risk analysis team . The risk analysis team would consist of members from the 
Ministry of Agriculture  and the Expert Commission on Animal Health and Quarantine . The constitution 
of this team  would take into account Indonesia's  national budget for conduct ing such process. 
Moreover, business unit approval for the importation of poultry meat and poultry products had to  
refer to applicable rules regarding  State revenue , as well as to non-tax mechanism s. Indonesia stood  
ready to continue to consult  and would remain in constant communication with Brazil with respect 
to any matter relating thereto.   
1.36.   The representative of  Brazil  said that her country  wished to thank Indonesia for its third status 
report. Brazil wished  to share with Members some concerns regarding Indonesia 's implementation 
of the DSB 's recommendations and rulings in the present dispute , as it had done at  previous DSB 
meetings . These concerns relate d to the following topics: (i) the "positive list  requirement "; (ii) the 
distribution plan  requirement; (iii) amendments to the terms of import licences ; and, most 
importantly, (iv ) the prompt analysis of Brazil 's veterinary health certificate for the importation of 
chicken meat and chicken products. Wit h regard to the first issue, Brazil note d that Indonesia 's 
positive list had not cease d to exist. Indonesia had chose n to maintain the list and had include d 
some of the HS codes of chicken meat and chicken products that had been the subject of Brazil 's 
complaint. However, o ne HS code had yet to be included in Indonesia 's positive list.  As for 
distribution plans, Indonesia had further eliminated the requirement of distribution reports with 
information regarding use or place of sale of imported chicken meat and chicken products.  However, 
the requirement of distribution plans continue d to be in force by virtue  of Article  22(1)(l) of Ministry 
of Agriculture  Regulation  34/2016.  Brazil noted m oreover  that Indonesia ha d introduced the 
possibility of making changes  to the terms of the import licenses.  Notwithstanding this, amendments 
to import licenses were subject to several requirements. S anctions on importers continued to apply 
in the event that these requirements were not strictly observed.  Brazil also wished to highlight the 
unsatisfactory status of the analysis of Brazil 's veterinary health certificate for the importation of 
chicken meat and chicken products. After  nearly  ten years, Brazil was still waiting for concrete 
progress  in this respect . Brazil , once ag ain, ask ed Indonesia to include in its future status reports 
the status of the analysis and approval of this certificate , which wa s a fundamental step for opening 
the Indonesian market.  The reasonable period of time for Indonesia to comply with the DSB 's 
recommendations and rulings in this dispute ha d expired on 22 July 2018 . Full implementation, as 
Brazil had explained  at the present meeting , remain ed to be seen. Brazil  thus urge d Indonesia to 
approve Brazil 's veterinary health certificate in a timely man ner and to fully comply with the DSB 's 
recommendations and rulings in the present dispute. Brazil remain ed ready to work with Indonesia 
with respect to any aspect of this dispute . 
1.37.   The DSB took note  of the statements and agree d to revert to this matter at i ts next regular 
meeting.  
H.  United  States – Anti-dumping measures on certain oil country tubular goods from 
Korea: Status report by the United  States (WT/DS488/12/Add.2)  
1.38.   The Chairperson  drew attention to document WT/DS488/12 /Add. 2, which contain ed the 
status report by the United States on progress in the implementation of the DSB's recommendations 
in the case concerning anti -dumping measures on certain oil country tubular goods from Korea . 
1.39.   The representative of the United  States  said that t he United States had provided a status 
report in this dispute on 8 Novem ber 2018, in accordance with Article  21.6 of the DSU. As explained 
in that report, the United States continue d to consult with interested parties on options to address 
the DSB 's recomm endations .  WT/DSB/M/421  
 
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  1.40.   The representative of  Korea  said that  Korea wished to thank the United States for its status 
report  and for its statement made at the present meeting . Korea ha d been closely monitoring the 
status of implementation  by the United States  of the DSB's recommendations and rulings in this 
dispute.  Korea wa s concerned that no specific action to implement the DSB's recommendations and 
rulings had been  taken.  Korea strongly request ed that the U nited States resolve the uncertainty 
surrounding implementati on without delay . 
1.41.   The DSB took note  of the statements and agree d to revert to this matter at its next regular 
meeting.  
2  UNITED  STATES – CONT INUED DUMPING AND SU BSIDY OFFSET ACT OF  2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE  DSB 
A.  Statement by the European  Union  
2.1.  The Chairperson  said that t his item was on the Agenda of the present  meeting at the request 
of the European  Union . She then invite d the representative of the European  Union to speak.  
2.2.  The representative of the European  Union  said that the EU request ed, once again , that the 
United  States stop transferring anti -dumping and countervailing duties to the US industry.  Every 
disbursement that was still tak ing place was clearly an act of non -compliance with the DSB 's 
recommendations and rulings  in this dispute . The EU renew ed 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. The EU 
would continue to place this item on the Agenda of the DSB as long as the United  States ha d not 
implemented the DSB's recommendations and  ruling s in this dispute . Once the transfers of 
anti-dumping and countervailing duties ceased, so would the EU measures.  
2.3.  The representative of Brazil  said that as an original party to this dispute, B razil wished to thank 
the EU , once again , for placing this item on the Agenda of the DSB.  The main aspect of this item on 
the Agenda – beyond the discussion about the obligation or not for the concerned Member to 
continue to submit status reports – was tha t after more than 15  years of the DSB's recommendations 
and rulings in this dispute, and more than 12  years after the date of the Deficit Reduction Act that 
had repealed the Byrd Amendment, millions of dollars in anti -dumping and countervailing duties 
charged on Brazilian and other Members' exports were still being illegally disbursed to US domestic 
petitioners. Brazil called on the United States to fully comply with the DSB's recommendations and 
rulings in this dispute.  
2.4.  The representative of  Canada  said th at Canada wished to thank the European Union  for placing 
this item on the Agenda of the present meeting. Canada share d the EU's view that this dispute had 
to remain subject to monitoring by the DSB until the U nited States cease d to apply the measures at 
issue in this dispute.  
2.5.  The representative of the United  States  said that as the United States had noted at previous 
DSB meetings, the Deficit Reduction Act – which included a provision repeal ing the Continued 
Dumping and Subsidy Offset Act of  2000 – had been enacted into law in February  2006.  Accordingly, 
the United States had taken all actions necessary to implement the DSB's recommendations and 
rulings in these disputes. The United States  recalled , furthermore,  that the EU had a cknowledged 
that the Deficit Reduction Act did not permit the distribution of duties collected on goods entered 
after 1  October  2007, more than 10  years ago.  With respect to the EU's request for status reports 
in this matter, as the United  States had already explained at previous DSB meetings, there was no 
obligation under the DSU to provide further status reports once a Member announced that it had 
implemented the DSB's recommendations and rulings, regardless of whether the complaining party 
disagreed abou t compliance.  The practice of Members confirm ed this widespread understanding of 
Article 21.6 of the DSU as no status report had been submitted by any Member in any dispute this 
month, or for previous DSB meetings, where the responding Member ha d claimed c ompliance and 
the complaining Member disagree d. The EU had explained at the previous DSB meeting  that, in its 
view, the issue of compliance "remains  unresolved for the purposes of Article 21.6 ". Under such a 
standard, the United States  would expect the EU to provide status repo rts in any dispute where 
there wa s a disagreement between the parties on the EU 's compliance, including the "EC – Large 
Civil Aircraft" dispute (DS316) . Given the EU's failure to provide a status report in that dispute again 
prior to the present meeting, the United States failed to see how the EU's behaviour was consistent WT/DSB/M/421  
 
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  with the alleged systemic view it had been espousing under this Agenda item for more than ten 
years.  As the EU was aware, the United States had announced in this dis pute that it had implemented 
the DSB's recommendations and rulings. If the EU dis agreed, there would simpl y appear to be a 
disagreement between the parties to the dispute about the situation of compliance.   
2.6.  The representative of  the European  Union  said that t he United States ha d referred to the "EC 
– Large Civil Aircraft" dispute (DS316)  at the present meeting . The European Union noted that the 
United States had placed an item related to th at dispute on the Agenda of the present meeting . The 
EU would the refore respond to US comments under that Agenda item.  The United States ha d also 
stated that the EU ha d failed to provide status reports in a number of cases that involve d the EU. 
This was not correct. The EU ha d provided status reports on all cases that i nvolve d it. For the present 
meeting of the DSB, the relevant disputes were the "EC – Approval and Marketing of Biotech 
Products" (DS291) dispute and the "EU – Biodiesel ( Indonesi a)" (DS4 80) dispute.   
2.7.  The DSB took note  of the statements.  
3  EUROPEAN  COMMUNITIES  AND CERTAIN MEMBER STATES – MEASURES AF FECTING 
TRADE IN LARGE CIVIL  AIRCRAFT: IMPLEMENT ATION OF THE RECOMME NDATIONS 
ADOPTED BY THE DSB  
A.  Statement by the United  States  
3.1.  The Chairperson  said that t his item was on the Agenda of the pres ent meeting at the request 
of the United  States . She then  invite d the representative of the United States to speak . 
3.2.  The representative of the United  States  said that the United States noted that, once again, the 
EU had not provided Members with a status re port concerning the "EC – Large Civil Aircraft" dispute 
(DS316). The United States had raised the same issue at recent past DSB meetings, where the EU 
similarly had chosen not to provide a status report. As the United States had noted at several recent 
DSB meetings , the EU had argued that Article 21.6 of the DSU required that : "the issue of 
implementation … shall remain on the DSB's agenda until the issue is resolved".  And t he EU had 
argued that where the EU did not agree with another Member's "assertion th at it has implemented 
the DSB ruling s", "the issue remains unresolved for the purposes of Article  21.6 DSU". This stated 
EU position simply contradicted the EU's actions in this dispute.  The EU had admitted that there 
remained a disagreement as to whether the EU had complied in this dispute. Under the EU's own 
view, therefore, the EU should have been providing status reports. Yet it had failed to do so.  The 
only difference that the United States could see was that, now that the EU was a responding  party, 
the EU was choosing to contradict the reading of Article  21.6 of the DSU it had long erroneously 
promoted.  The EU's purported rationale was that it did not need to provide a status report because 
it was pursuing a second compliance panel under Article  21.5 o f the DSU.  But as the United States 
had explained at past DSB meetings, there was nothing in Article  21.6 of the DSU to support this 
position. In short, the conduct of every Member when acting as a responding party, including the 
EU, showed that Members un derstood that a responding party had no obligation under Article  21.6 
of the DSU to continue supply ing status reports once that Member announced that it had 
implemented the DSB's recommendations.  As the EU allegedly disagreed with this position, it should 
for future DSB meetings provide status reports. At the present meeting, the EU should have 
welcome d the opportunity that the United States had afford ed it to update the DSB for the first time 
with any detail on its alleged implementation efforts.   
3.3.  The representative of the European  Union  said that as the EU had indicated at previous DSB 
meetings, there was a difference between the "EC – Large Civil Aircraft" dispute (DS316) and the 
"US — Offset Act (Byrd Amendment)" dispute s (DS217 , DS234 ). In the " US — Offset Act 
(Byrd  Amendment)" dispute s (DS217 , DS234 ), the dispute s had been adjudicated and there were 
no further compliance proceedings pending. Under Article  21.6 of the DSU, the issue of 
implementation shall remain on the DSB's Agenda until the iss ue was resolved.  In the "US — Offset 
Act (Byrd  Amendment)" (DS217 , DS234 ) dispute s, the EU d id not agree with the US assertion that 
the United States had implemented the DSB's recommendations and rulings. Therefore, the issue 
remained unresolved for the pu rposes of Article 21.6 of the DSU.  In the "EC – Large Civil Aircraft" 
dispute (DS316) , once the Appellate Body report on compliance had been issued, the EU had notified 
to the WTO a new set of measures in a compliance communication and tabled at the 28 May 2018 
DSB meeting.  With respect to the measures included in that communication, the United  States had WT/DSB/M/421  
 
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  expressed the view that the EU had not yet fully complied with the DSB 's recommendations . In 
response  to this US view , on 29  May 2018, the EU had requeste d consultations with the 
United  States under Articles  4 and  21.5 of the DSU . After these consultations  had failed, the EU  had 
requested the establishment of a compliance panel. The compliance panel had been established by 
the DSB on 27  August  2018.  Hence, compliance proceedings in this dispute were therefore still 
ongoing. Whether or not the matter was resolved was the very subject matter of this ongoing 
litigation.  With regard to the US comment on Article 21.6 of the DSU, the EU would be very concerned 
with a reading of this provision which would have require d the implementing Member to notify the 
status of implementation while litigation on this issue was ongoing. This view wa s further supported 
by Article 2 of the DSU on the administration of the dispute settlement rules and procedures . In the 
dispute  at hand, and following  disagreement between the parties regarding  compliance, the DSB 
had exercised its function through the establishment of a compliance panel. The matter was currently 
with the adjudicators and had therefore been temporarily taken out of the DSB 's surveillance.   
3.4.  The DSB took note  of the statements.  
4  RUSSIAN  FEDERATION – MEASURES ON THE IMP ORTATION OF LIVE PIG S, PORK AND 
OTHER PIG PRODUCTS F ROM THE EUROPEAN  UNION 
A.  Recourse to Article  21.5 of the DSU by the European  Union: Request for the 
establishment of a  panel  (WT/DS475/21 ) 
4.1.  The Chairperson  recalled that the DSB had considered this matter at its meeting on 
29 October  2018, and had agreed to revert to it. She drew attention to the communication from the 
European Union contained in document WT/DS475/21 , and invited the representative of the 
European Union to speak . 
4.2.  The representative of the European  Union  said that t he EU requested for the second time  the 
establishment of a panel  at the present meeting to examine the consistency of the measures taken 
by the Russian Federation with the WTO rules to comply with the DSB's recommendations and rulings 
in this dispute . The E U hoped that the panel established toda y could be composed and start its work 
as soon as possible. The EU ha d been waiting a long time for the opening of the Russian market to 
pig products from the E U, in line with the DSB's recommendations and rulings in this dispute .  
4.3.  The representative of th e Russian  Federation  said that her country  regret ted that the EU had 
decided to request for the second time  the establishment of a panel under Article 21.5 of the DSU 
with respect to Russia 's measures on the importation of live pigs, pork and other pig products from 
the EU. Russia wished  to refer to its statement made at the 29 October 2018 DSB meeting under 
the same Agenda item. Russia believe d that the DSB 's recommendations and rulings in t his dispute 
had been  fully and timely implemented , and that all the measures deemed to violate Russia's WTO 
commitments under the SPS Agreement had been  brought into conformity. Moreover, Russia note d 
that proceedings under Article 21.5 of the DSU we re lim ited to measures taken to comply with the 
DSB's recommendations and rulings. However, in its panel request the EU had referred to certain 
measures which had not been "taken to comply " with the DSB's recommendations and rulings by 
Russia. Russia t hus believ ed that there was no legal basis for the EU to request the establishment 
of a panel under Article 21.5 of the DSU .  
4.4.  The representative of the European Union  said that t he EU would  not enter into a detailed 
discussion of legal arguments at the present meeting . The EU  simply wished to recall  that Russia  
had kept the ban on the importation of pig and pork products in place.  Russia ha d claimed compliance 
with the DSB's recommendations and rulings while its market was still closed to such products. What 
the EU intend ed to challenge was Russia's failure to comply with its obligations under the DSB's 
recommendations and rulings.  
4.5.  The DSB took note of the statements and agree d, pursuant to Article  21.5 of the DSU, to refer 
to the original Panel, if possible, th e matter raised by the European Union in document 
WT/DS475/21 . It was agreed that the Panel would have  standard terms of reference.  
4.6.  The representatives of Australia , China , India, Japan , Kazakhstan , Ukraine  and the 
United  States  reserved their third -party rights to participate in the Panel's proceedings.  WT/DSB/M/421  
 
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  5  CHINA – CERTAIN MEAS URES CONCERNING THE PROTECTION OF INTELL ECTUAL 
PROPERTY RIGHTS  
A.  Request for the establishment of a panel by the United  States  (WT/DS542/8 ) 
5.1.  The Chairperson  recalled that the DSB had considered this matter at its meeting on 
29 October  2018, and had agreed to revert to it.  She drew attention to th e communication from the 
United  States contained in document WT/DS542/8 , and invited the representative of the Unit ed 
States to speak . 
5.2.  The representative of the United  States  said that a s the United States had noted at the 
29 October 2018 DSB meeting, China ha d implemented policies that consistently s ought  to 
disadvantage foreign companies for the benefit of Chinese in dustry. The se policies den ied foreign 
patent holders, including US companies, basic patent rights to stop a Chinese entity from using the 
technology after a licensing contract end ed. China also impose d mandatory adverse contract terms 
that discriminate d against and were less favo urable for imported foreign technology. These policies, 
reflected in Chinese legal instruments, were inconsistent with Articles 3 and 28 of the TRIPS 
Agreement because they fail ed to provide the intellectual property rights to wh ich China had 
committed when it had acceded to the WTO. China ha d been engaging in industrial policy which ha d 
resulted in the discriminatory transfer of intellectual property and technology to the detriment of the 
United States and its workers and busines ses. China 's stated intention was to achieve global 
dominance in advanced technology. These unfair policies and practices affect ed all WTO Members, 
not just the United States.  The United States ha d estimated that some of China 's policies were 
causing US$50 billion in annual harm to the United States alone. The aggregate impact of China 's 
policies to all WTO Members worldwide would be much higher. The best way for China to support 
fairness in the world trading system was to remedy the problems it ha d created . China should change 
its behavio ur: stop distorting markets, stop forcing companies to transfer technology, and create a 
level playing field that w ould give all countries a better chance to succeed. For the past several 
years, the United States ha d repeat edly raised concerns about China 's policies relating to technology 
licensing that d id not comport with China 's WTO commitments. As these efforts ha d failed to resolve 
this dispute, the United States was now proceeding for the second time to request that th e DSB 
establish a panel. Accordingly, the United States was requesting that the DSB establish a panel to 
examine the matter set out in its panel request , with standard terms of reference.   
5.3.  The representative of China  said that China was disappointed that t he United States  had 
request ed for the second time the establishment of a panel to examine the subject matter of this 
dispute. The US accusations were based  on a deliberate misrepresentation of Chinese law and 
practice. It was clear that the so -called "forced technology transfer " alleged by the United States  
was not within its request for consultations or its request for the establishment of a panel in this 
dispute. It was therefore  not relevant to the present dispute. Technology transfer in the course o f 
cooperation between China and developed countries such as the United States  was voluntary in 
nature. It was driven by real market demands and the willingness of suppliers, and generally 
reflect ed a buoyant but competitive Chinese market. The Chinese G overnment ha d never introduced 
policies or practices that force d foreign owners to transfer technology  as part of the cooperation 
process . The US accusations were meritless. They were based  on a deliberate misrepresentation of 
Chinese laws and practices, as w ell as on allegations from unidentifiable sources. To date, China  had 
not heard any convincing evidence to support  the US claims. The technological  upgrade of Chinese 
firms was a natural result of various factors, such as a four-decade adherence to the open -up policy, 
a traditional hard -working spirit, dedication  to education, and the natural spill overs  of foreign 
technologies in the course of business cooperation. None of these factors relate d to a so-called 
"forced techno logy transfer ". Characterizing  voluntary technology transactions as forced show ed a 
deliberate distortion of basic facts and an ignorance of the spirit of such transactions . China d id 
maintain some equity cooperation requirements in certain areas . These re quirements  were a practice 
common  to many Members and were in line with China 's international obligations . They  did not 
constitute forced technology transfer s. By contrast, t he United States, in the absen ce of a WTO 
authorization , had illegally imposed pun itive, hefty tariffs on other Members , which bluntly breache d 
WTO rules and disciplines such as most -favoured-nation treatment and tariff binding. Such unilateral 
measures  had undermined the legitimate interests of all Members , including China. More 
importantly, the se unilateral measures  had jeopardized the authority of the WTO and its dispute 
settlement system, and exposed the multilateral trading system and international trade order to 
unprecedented risks. In this respect, nin e Members ha d initiated dispute settlement proceedings 
against the U nited States regarding its Section 232 measures . China ha d also challenged the WT/DSB/M/421  
 
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  US Section 301 measures in two disputes this year. China's  message was clear and consistent. China 
took its commitments seriously and expect ed its partners to do the same with theirs. While China 
was ready to engage in good faith discussions o f any intellectual property issue at any time, China  
was also fully prepared to safeguard its legitimate interests under t he covered agreements. China 
was not enthusiastic about  playing blaming games which directly conflict ed with the fundamental 
values that underpinned the  creati on of this Organization. China underst ood that a panel w ould be 
established at the  present  meetin g. China stood ready to defend its legitimate rights and interests 
in future proceedings.   
5.4.  The representative of  Japan  said that a s stated at the 29 October 2018 DSB meeting, Japan, 
as one of the major expor ters of technology to China,  had repeatedly raised concerns with China 's 
laws, regulations and other measures identified by the United States in its panel request. In 
particular, the Regulations of the People 's Republic of China on the Administration of the Import and 
Export of Technolog ies (TIER) seem ed to impair the ability of fore ign intellectual property right  
holders to protect their intellectual property rights . This measure mandate d contractual terms in 
technology transfer agreements between foreign and Chinese partners in a manner  detrimental to 
the interest of foreign partners. Japan share d the concerns of the United States regarding the WTO 
consistency of the measures challenged in this dispute. The measures at issue were discriminatory 
and fail ed to provide sufficient protection  of intellectual property rights in China. Japan emphasize d 
the importance of stronger protection of intellectual property rights and their effective enforcement.   
5.5.  The representative of  the European  Union  said that t he EU share d the US concerns regarding 
China's technology transfer  laws and practices and welcomed the establishment of a panel pursuant 
to the US request  in this dispute  in order to make an objective assessment of China 's alleged 
discriminatory measures on the licensing of imported technology. The E U would  become a third party 
in this dispute , and look ed forward to the opportunity of setting out its views in the course of these 
proceedings. At the 29 October 2018  DSB meeting , China had qualified the US allegations as 
unfounded and as misrepresen ting Chinese laws and practices. The EU  disagree d with that position. 
On 1 June 2018, the E U had  filed a request for consultations that cover ed the claims brought forward 
by the U nited States in this dispute . Like the U nited States, the EU believe d that China 's laws and 
policies discriminate d against and were less favourable to imported foreign technology, and impose d 
mandatory adverse contract terms on foreign intellectual property right holders. The EU consider ed 
that these laws and policies were contrary to China 's obligations under the TRIPS Agreement and 
China 's commitments under its Protocol of Accession. However, the problems with China 's 
technology transfer policies were much broader than the issues addressed in th is dispute and in the 
EU's r equest for consultations . The EU concerns c ame as no surprise to China and other Members. 
China 's technology transfer policies were discussed at length both in multilateral and in bilateral 
meetings and were described in detail in the Section 301 report is sued by the U nited States in March 
2018. The E U agree d with many of the factual findings made by the U nited States in that report. 
However, the EU believed  that the only way to find solutions to these issues was through the 
rules-based multilateral trading  system. That was the reason why the EU support ed initiatives, such 
as the one of the U nited States in this dispute , to resolve matters that were of concern to Members 
in a fair and objective manner, using the legal means available under WTO Agreements.   
5.6.  The DSB took note of the statements and agree d to establish a panel in accordance with the 
provisions of Article  6 of the DSU , with standard terms of reference.  
5.7.  The representatives of the European Union , India, Japan , Kazakhstan , Korea , Norway , 
the Russian Federation , Singapore , Switzerland , Chinese Taipei , Turkey  and Ukraine  reserved their 
third-party rights to participate in the Panel's proceedings.  
6  UNITED  STATES – CERT AIN MEASURES ON STEE L AND ALUMINIUM PROD UCTS  
A.  Request for the establishment of a panel by China (WT/DS544/8 ) 
6.1.  The Chairperson  recall ed that the DSB had considered this matter at its meeting o f 
29 October  2018, and had agreed to revert to it. She drew attention to the communication from 
China contained in document WT/DS544/8 , and invited the representative of China to speak . 
6.2.  The representative of China  said that China wished to r efer to its previous statement made at 
the 29 October  2018 DSB meetin g regarding  this dispute . China request ed the DSB to establish a WT/DSB/M/421  
 
- 15 - 
 
  panel at the present meeting . To avoid repetition, China w ould not discuss  in detail how the Section 
232 measures taken by the US were essentially safeguard measures, or how those measures were 
inconsistent with the GATT 1994 and the Agreement  on Safeguard s. China wished to confirm that 
its statement made at the  29 October 2018 DSB meeting regarding  this dispute remain ed fully valid. 
Notably, besides China, there were 8 other Members who ha d similarly  requested to establish panels 
for disputes based on  the same measures and similar  legal grounds  at the present  meeting. China 
believed  that t here was a shared  understanding among various  Members that the measures at issue 
were inconsistent with the core principles of the covered agreements. China consider ed that the 
matters at issue ha d significant systematic implications for the  WTO. Members had to  faithfully fulfil 
their obligations and commitments under WTO Agreements. Members  also had to  use or invoke the 
security exception provisions within  WTO Agreements on a bona fide basis. And the DSB ha d full 
authority  to examine the measures at issue  in this dispute . Pursuant to Article 9.1 of the DSU, China 
request ed the establish ment of a single panel  to examine the complaints under Agenda item s 7, 
8,9,10 and  11, as well as Agenda items 16,17 and 18 of th e present  meeting, which related to the 
same matter.   
6.3.  The representative of the United  States  said that China 's second panel request in this dispute 
continue d China 's pattern of using the WTO dispute settlement system as an instrument to promote 
its non -market economic policies. These non -market policies were widely recognized by WTO 
Members as leading to massive excess capacity and distortions of world  markets while damaging 
the interests of market -based economies and the businesses and workers who operate under these 
principles. In particular, China 's policies ha d created and maintained excess capacity in the steel and 
alumin ium sectors, and undermine d the basic fairness of international trade. WTO Members already 
knew that these sectors were suffering under conditions of excess capacity directly caused by China 's 
non-market economic system. Driven by its industrial policy, China ha d created new plants and 
maintained existing production contrary to market signals. Under such conditions, it was impossible 
for businesses and workers in the United States, the European Union, Canada, Mexico, Norway, and 
other WTO Members, to earn a sufficient return in the m arket to remain viable over the longer term. 
As the report from the US Secretary of Commerce note d: "[f]ree markets globally are adversely 
affected by substantial chronic global excess steel production led by China. While U .S. steel 
production capacity has  remained flat since 2001, other steel producing nations have increased their 
production capacity, with China alone able to produce as much steel as the rest of the world 
combined. "6 Reports fr om the United States, however, we re not the only ones that reco gnize d the 
pervasive problems in the steel and aluminium  sectors. The September 2018 Global Steel Forum 
Ministerial Report, agreed by 33 member countries, had stated: "[e]xcess steelmaking capacity … 
depresses prices, undermines profitability, generates da maging trade distortions, jeopardizes the 
very existence of companies and branches across the world, creates regional imbalances, 
undermines the fight against environmental challenges and dangerously destabilizes world trading 
relations. "7 And the OECD ha d reported that  Chinese steel excess capacity wa s estimated at 300 
million metric tons, dwarf ing total US production capacity.8 In the case of aluminium , since 2008, 
China ha d added 30 million metric tons in new capacity – that is , more than the current com bined 
capacity of the nine largest producers after China. China 's non -market policies also ha d led to global 
conditions in which core US industries, which were vital to US national security, were not able to 
survive and invest for the future on market -based terms. This devastating effect on US industries 
critical to US national defen ce could place the United States in a position where it was unable to 
meet national defen ce demands in a national emergency. The President of the United States ha d 
determined that, under these conditions, imports of steel and aluminium  threaten ed to impair US 
national security. The United States ha d given detailed explanations that the measures at issue were 
taken pursuant to Article XXI of the GATT 1994. In particu lar, the United States  had explained the 
determination by the US President that these measures were necessary to address the threat that 
imports of steel and aluminium  articles pose to US national security. Some Members ha d expressed 
concerns that invoking  the national security exception in these circumstances would undermine the 
international trading system. This was erroneous, and completely backwards. Rather, what 
threaten ed the international trading system was that China was attempting to use the WTO di spute 
settlement system to prevent any action by any Member to address its unfair, trade -distorting 
policies. China 's choice to pursue dispute settlement against WTO Members defending their 
legitimate interests would make WTO rules an instrument for China to protect its non -market 
                                                
6 The Effect of Imports of Steel on the National Security, 11 January 2018, p. 55.  
7 Global Steel Forum Ministerial Report, Sept. 20, 2018, p. 1.  
8 OECD, High Level Meeting: Excess Capacity and Structura l Adjustment in the Steel Sector, April 2016, 
http://www/oecd/org/sti/ind/background%20document%20No%202_FINAL_Meeting/pdf.  WT/DSB/M/421  
 
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  behavio ur that was devastating the ability of Members to defend their national security interests. 
WTO rules d id not make market -oriented WTO Members helpless in the face of blatant, unfair 
distortions that undermine d their nation al security. GATT 1994 Article XXI  reflect ed the common 
understanding, from the very beginning of the international trading system, that each WTO Member 
could  judge for itself the actions necessary to protect its essential security interests. Were it 
other wise, then the WTO and the international trading system would lose all credibility and support 
among US citizens. If China maintain ed its misguided request for a panel to make findings that the 
United States ha d not acted consistently with WTO rules in thi s dispute, there was no finding a panel 
could make other than to note that the United States ha d invoked Article XXI . China ha d requested 
that a single panel be established under Article 9.1 of the DSU to examine various matters on the 
Agenda of t he presen t meeting. The United States d id not agree. For a single panel to be established 
to examine multiple complaints, the DSB must decide  to establish a single panel. This would be  a 
decision taken by the DSB by consensus. Because the challenged actions had bee n taken on the 
basis of US national security interests, the United States  continue d to see no basis for this dispute. 
Therefore, the United States did  not agree to establish a single panel under Article 9.1  of the DSU . 
6.4.  The representative of China  said that  not surprisingly, the United States  had once again singled 
out China to disguise its illegal safeguard measures. This was not n ew. During the 29 October 2018  
DSB meeting , the United States  had opted for  a similar diversion tactic when it  had accus ed China  
of adopting  so-called non -market econom ic policies and of causing overcapacity .9 Those  accusations 
were meritless  and based  on distorted and fictitious facts . Although China had  rebutted these 
accusations in multiple fora including General Council meeting s, DSB meetings and recent SCM 
Committee meetings on many occasions, it seemed that  a brief reiteration of these rebuttals wa s 
still needed to shed light  on these issues. With respect to the so -called excess capacity issue, China 
recognize d that overcapacity in the  steel and aluminium  sectors  had arisen alongside with the 
stimulus policies in response to the financial crisis from 2008 onward. S uch issue constituted a global 
challenge that should be addressed by joint efforts. In this regard,  China ha d already implemented 
numerous actions to absorb its increased capacity and had made sincere contributions to he lp the 
global steel and aluminium  market s recover , even though those actions  had caused tremendous 
adjustment pains to China's  business es and workers. As for the expression  "non-market practice ", 
China wished to reiterate that there was no definition of "market economy " within  WTO rule s, and 
that there was no one -size-fits-all "market economy " standard throughout the world. The arguments 
in the US Department of Commerce 's report pursuant to Section 232  were unfounded . The statement 
made by the United States  at the present meeting reeked of hypocrisy. The invocation of n on-market 
econom ic policies and  overcapacity by the United States  showed serious efforts aimed at further 
strengthening  its national security disguise over its safeguard measures. The DSB was mandated to 
strip off any disguise o ver protective measures and to bring them into conformity with WTO rules. 
If the United States  had truly believed that its allegations ha d legal merit under the covered 
agreements, then it would have agree d to comply with the rules-based WTO dispute settlement 
system. China d id not share the same enthusiasm as the United States  for playing the blam e game. 
Members  were not ruled by  the law of the jungle. China wished to call for  follow ing WTO rules  and 
for abiding by them. Nothing could ultimately justify any Member  placing itself above WTO rules  
agreed by the Membership , including that same Member . China also deeply regret ted the opposition 
of the United States  to China 's request for the  establish ment of  a single panel for panel requests 
that related to the same matter. China recall ed that Article 9.3 of the DSU state d that: "[i]f more 
than one panel  is established to examine the complaints related to the same matter, to the greatest 
extent possible the same persons shall serve as panelists on each of the separate panels and the 
timetable for the panel process in such disputes shall be harmonized ". China request ed that if 
separate panel s were established to examine  the disputes regarding the US measures at issue, then 
Article 9.3 of the DSU had to  apply in order to secure the efficiency of the proceeding s. 
                                                
9 United States, Statement at the Dispute Settlement Body Meeting, 29 October 2018, pp. 28 -30. WT/DSB/M/421  
 
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  6.5.  The DSB took note of the statements and agree d to establish a panel in accordance with the 
provisions of Article  6 of the DSU with standard terms of reference.  
6.6.  The representatives of Canada , Colombia , the European Union , Guatemala , Hong Kong, China ; 
Iceland , India, Indonesia , Japan , Kazakhstan , Mexico , Norway , Qatar , the Russian Federation , the 
Kingdom of Saudi Arabia , Singapore , South Africa , Switzerland , Chinese Taipei , Thailand , Turkey , 
Ukraine  and the Bolivarian Republic of Venezuela  reserved their third -party rights to participate in 
the Panel's p roceedings.  
7  UNITED  STATES – CERT AIN MEASURES ON STEE L AND ALUMINIUM PROD UCTS  
A.  Request for the establishment of a panel by the European  Union (WT/DS548/14 ) 
7.1.  The Chairperson  recall ed that the DSB had considered this matter at its meeting o f 
29 October  2018, and had agreed to revert to it.  She drew attention to the communication from the 
European Union contained in document WT/DS548/14 , and invited the representative of the 
European Union to speak.  
7.2.  The representative of the European  Union  said that as it  had done at the 29 October  2018 DSB 
meeting, the EU w ould speak only under this Agenda item, and had not and w ould not take the floor 
under the preceding and the seven subsequent Agenda items that all concern ed the same US 
measures. This was, again, to av oid repetition . However,  the spirit of this  EU statement also applie d 
to the aforementioned Agenda items. The EU w ould not repeat the explanation it had given at the  
29 October 2018 DSB meeting regarding its  perfectly reasonable rationale f or bringing this  dispute, 
and notably why the US measures were safeguard measures and incompatible  with WTO law. The 
EU wished to refer to its statement  made at the 29 October 2018 DSB meeting,  which remain ed fully 
valid. Instead, the EU w ished to  focus on some of the statements which the US had made last time, 
and to provide a response. First, in terms of production overcapacity, the EU share d the US deep 
concern regarding overcapacity , and agreed that there was a  need to urgently eliminate it and  the 
direct and indirect government support that cause d it. However,  actions taken in this regard had to  
comply with  EU and US  international obligations . Also, the US action under Section 232 fail ed to 
address the root causes of the problem. The EU look ed forward to the full and prompt implementation 
of the important outcomes of the Paris Ministerial of the Global Forum for Steel Excess Capacity, 
which had focuse d precisely on such root causes. At the 29 October 2018 DSB meeting, the EU had  
discussed seven panel requests related to the  US measures . At the present meeting, there were 
nine such panel requests . This was  the first such occurrence in the history of the WTO. This was 
testimony to the fact that the United States was quite alone with its view that i ts measures were 
completely acceptable and should be left alone. The U nited States had alleged that : "if the WTO 
were to undertake to review an invocation of Article XXI, this would undermine the legitimacy of the 
WTO's dispute settlement system and even the viability of the WTO as a whole ". The reality was 
that the WTO as a whole would be undermined and its value questioned if individual Members could 
protect their domestic industries against competition from abroad whenever they wish ed, without 
condition s and without legal review in the WTO. In certain respects, it m ight well have been a good 
thing that the past record of GATT and WTO dispute settlement present ed few cases where the 
invocation of GATT 1994 Article XXI  had been an issue, and none where suc h an invocation had been  
adjudicated. Also, the EU c ould easily agree with the US on the importance of GATT 1994 Article XXI  
in balanc ing rights and obligations under the GATT 1994. However, this c ould not mean that there 
should be no review of the use of this exception where it had suddenly been used so differently and 
had even been blatantly abused. At the 29 October 2018 DSB meeting, the United States had focused 
heavily on a Member 's prerogative "to determine, for itself, what is in its own essential se curity 
interests ". The United States never seem ed to have paid attention to the fact that GATT 1994 Article 
XXI(b) contain ed other conditions that had to  be satisfied. The EU ha d noticed that certain bilateral 
trade agreements of the United States  did not contain these other conditions , and that certain other 
bilateral trade agreements stated that there had to  be no judicial review once the security exception 
was invoked. However , the GATT 1994 differ ed from these bilateral US trade agreements. The EU 
believed  that in such a situation the most reasonable  course of action  for all involved was to calmly 
and soberly pursue the avenue of WTO dispute settlement system, as was foreseen by the covered 
agreements, one of which include d Article XXI. The EU , contrary to what the United States  had 
stated at the 29 October 2018 DSB meeting , defend ed a perfectly consistent position regarding 
GATT  1994 Article XXI , which was on record and public in the context of the ongoing "Russia – Traffic  
in Transit" dispute (DS51 2). The 1982 EEC statement in the GATT Council had been  made at a time 
when there had been  no binding and compulsory dispute settlement system. It had not been made WT/DSB/M/421  
 
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  to defend a measure of commercial protectionism aimed at helping out a  struggling domestic 
industry. Rather, at th at time, one of the member States of the then European Economic Community 
and today of the European Union had found itself in a situation falling squarely within GATT 1994 
Article XXI (b)(iii). Finally, the fact t hat nine panel requests were tabled at the present meeting , 
seven of which  for the second time, in relation to the same US measures and based on virtually 
identical legal claims, also mean t procedurally that Article 9 of the DSU applie d. Accordingly, the E U 
request ed the establishment of a single panel pursuant to Article 9.1 of the DSU. Under the previous 
Agenda item, the United States had stated  that it refuse d the establishment of a single panel 
pursuant to Article 9.1 DSU. The first paragraph of Article  9 of the DSU provide d that a single panel 
"should be established to examine [multiple]  … complaints … related to the same matter  … whenever 
possible ". The panel requests tabled today ma de it 100% feasible to establish a single panel. It 
should not be in l ine with Article 9.1 of the DSU to ignore it when there was no valid reason for not 
following it.   
7.3.  The representative of the United  States  said that t he United States was deeply disa ppointed 
that the EU  had submitted a second panel request in this dispute.  As the United States had explained 
in its statement regarding this item at the prior DSB meeting of 29 October 2018, the EU kn ew as 
well as any Member the exten t and nature of the problems arising  from China 's excessive steel and 
aluminium  production, and the risks that excess capacity pose d to the global economic system. The 
United States ha d made clear that it consider ed the Section 232 measures necessary for the 
protection of its essential security interests, given the key roles steel an d aluminium  played to its  
national defen ce. The US measures were therefore justified under Article XXI of the GATT 1994 and 
not subject to review by a WTO panel. This ha d been the clear and unequivocal position of the United 
States for over 70 years, and h ad also been the position of the European Union and its member 
States , with good reason. The EU should well know the risks posed to the WTO dispute settlement 
system when a Member challenge d measures taken for the protection of essential security interests . 
For example, in 1982, when certain European actions had been  before the GATT Council, the 
European Economic Community and its member States had stated that Article XXI was a reflection 
of a Member 's "inherent rights".  They had stressed that "the exercise  of these rights constituted a 
general exception, and required neither notification, justification, nor approval, a procedure 
confirmed by thirty -five years of implementation of the General Agreement ... [since] every 
contracting party was – in the last re sort – the judge of its exercise of these rights. "10 Some GATT 
Contracting Parties  had questioned the validity of the European Community 's invocation of Article 
XXI11, but the United States in the same meeting had stood by the European Community and 
supporte d the European position.12 The United States had expressed  unequivocally  that: "GATT, by 
its own terms, left it to each contracting party to judge what was necessary to protect its essential 
security interests in time of international crisis. This was wise in the view of the United States, since 
no country could participate in GATT if in doing so it gave up the possibility of using any measures, 
other than military, to protect its security interests. "13 The position of the United States remain ed 
the same in 2 018 as the United States had expressed in 1982, 194914, and indeed during the 
negotiation of the GATT itself.15 Nothing  had changed in the text of Article XXI  since 1982. But the 
European  position ha d changed completely. The EU position taken at the present meeting  therefore 
lacked any principled rationale. Because the United States ha d invoked Article XXI , there was no 
basis for a WTO panel to review the claims of breach raised by the European Union. Nor was there 
any basis for a WTO panel to review the invo cation of Article XXI  by the United States. The United 
States  therefore d id not see any reason for this matter to proceed further. If the EU maintain ed its 
misguided request for a panel to make findings that the United States ha d not acted consistently 
with WTO rules in this dispute, there was no finding a panel could make other than to note that the 
United States ha d invoked Article XXI . Instead of litigating fruitlessly, the EU and its member States 
should reconsider and find common and effective means to  advance EU and US shared interests. 
                                                
10 GATT Council, Minutes of Meeting He ld on 7 May 1982, C/M/157, p. 10.  
11 GATT Council, Minutes of Meeting Held on 7 May 1982, C/M/157, p. 12 (statements of Argentina and 
Brazil).  
12 See also GATT Council, Minutes of Meeting Held on 7 May 1982, C/M/157, pp. 9 -11 (statements of New 
Zealand, Norw ay, Canada, the United Kingdom, and Australia, also supporting the EEC position).  
13 GATT Council, Minutes of Meeting Held on 7 May 1982, C/M/157, p. 8.  
14 Contracting Parties, Summary Record of the Twenty -Second Meeting Held on 8 June 1949, 
GATT/CP.3/SR.22,  p. 3. 
15 See U.S. Answers Questions from the Panel and the Russian Federation, Russia – Measures Concerning 
Traffic in Transit (WT/DS512), paras. 1 -15 (explaining negotiating history, including statements by U.S. delegate; 
available at 
https://ustr.gov/sit es/default/files/enforcement/DS/US.3d.Pty.As.Pnl.and.Rus.Qs.fin.%28public%29.pdf).  WT/DSB/M/421  
 
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  The EU ha d requested that a single panel be established under Article 9.1  of the DSU  to examine 
various matters on the Agenda of the present  meeting. The United States d id not agree. For a single 
panel to be established  to examine multiple complaints, the DSB must decide  to establish a single 
panel. This would be  a decision taken by the DSB by consensus. Because the challenged actions had 
been taken on the basis of US national security interests, the United States contin ued to see no 
basis for this dispute. Therefore, the United States d id not agree to establish a single panel under 
Article 9.1  of the DSU . 
7.4.  The DSB took note of the statements and agree d to establish a panel in accordance with the 
provisions of Article  6 of the DSU , with standard terms of reference.  
7.5.  The representatives of Canada , China , Colombia , Guatemala , Hong Kong, China ; Iceland , India, 
Indonesia , Japan , Kazakhstan , Mexico , Norway , Qatar , the Russian Federation , the Kingdom of Saudi 
Arabia , Singapore , South Africa , Switzerland , Chinese Taipei , Thailand , Turkey , Ukraine  and the 
Bolivarian Republic of Venezuela  reserved their third -party rights to participate in the Panel's 
proceedings . 
8  UNITED  STATES – CERT AIN MEASURES ON STEE L AND ALUMINIUM PROD UCTS  
A.  Request for the establishment of a panel by Canada  (WT/DS550/11 ) 
8.1.  The Chairperson  recall ed that the DSB had considered this matter at its meeting o f 
29 October  2018, and had agreed to revert to it.  She drew attention to the communication from 
Canada contained in document WT/DS550/11 , and invited the representative of Canada to speak . 
8.2.  The representative of Canada  said that Canada continue d to be deeply disappointed that this 
matter remain ed unresolved at  this time. Canada wished to  note that the conclusion of the NAFTA 
renegotiations was a major step to modernize and reinvigorate Canada's  economic and security 
partnership with the United States . Canada also wished to  note that the continued imposition of 
steel and aluminium  tariffs on the preten ce of national security w ould only harm Canadian and US  
supply chains, as well as companies and workers in both Canada and the United States. As Canada 
had repeatedly conveyed to the United States, it was inconceiva ble that imports of steel and 
aluminium  products from Canada could be construed to pose a natio nal security risk to the 
United  States. While WTO Members had to be able to take actions necessary to protect their national 
security interests pursuant to GATT 1994 Article XXI , Canada consider ed that Members should be 
prudent and sparing in their use of GATT 1994 Article XXI  in order to guard against its abuse. For 
this reason, Canada remain ed extremely concerned with the United States ' invocation of GATT 1994 
Article XXI  to justify the imposition of tariffs on steel and aluminium  from Canada on national security 
grounds. The justification of national security for these tariffs undermine d the integrity of the 
international rules -based trading system of which the  United States was a part and continue d to 
benefit from. Therefore, Canada ha d no choice but to request that the DSB establish a panel to 
examine the matter set out in its panel request. As Canada had stated at the 29 October 2018 DSB 
meeting , Canada 's pos ition was that a single panel should be established under Article 9.1 of the 
DSU for the "United States – Certain Measures on Steel and Aluminium Products" disputes with 
China (DS544), the EU (DS548), Canada (DS550), Mexico (DS551), Norway (DS552), the Rus sian 
Federation (DS554) and Turkey (DS564) , as they were all related to the same matter. It would be 
appropriate to establish a single panel to examine these disputes, particularly given the 
complainants ' willingness to coordinate and proceed in this manne r.  
8.3.  The representative of the United  States  said that t he United States was disappointed that 
Canada ha d requested the establishment of a panel in this dispute for the second time. As the United 
States had explained in its statement at the prior DSB meeting of 29 October 2018 addressing  
Canada 's panel request  in this dispute , because the United States ha d invoked Article XXI of the 
GATT 1994, there was no basis for a panel to review Canada 's claims of WTO -inconsistency. The US 
positio n was therefore completely consistent with the Canadian position – at least, as had been 
expressed by Canada when its own invocation of Article XXI  had been  challenged back in 1982.16 As 
                                                
16 GATT Council, Minutes of Meeting Held on 7 May 1982, C/M/157, pp. 10 -11 (statement by Canada: 
“Canada was convinced that the situation which had necessitated the measures had to be satisfactorily resolved 
by appropriate action elsewhere, as the GATT had neither the competence nor the responsibility to deal with the 
political issue which had been raised. His delegation could not, therefore, accept the notion that there had b een 
a violation of the General Agreement").  WT/DSB/M/421  
 
- 20 - 
 
  there was no finding a panel could make other than to note that the Un ited States ha d invoked 
Article XXI , the United States  did not see any point to this request. The United States also recall ed 
that Canadian and US authorities ha d been engaging in constructive discussions towards resolving 
concerns surrounding these matter s. The United States was hopeful that these discussions m ight be 
concluded satisfactorily. Canada ha d requested that a single panel be established under Article 9.1 
of the DSU to examine various matters on the Agenda of the present  meeting. The United Stat es 
did not agree. For a single panel to be established to examine multiple complaints, the DSB must 
decide  to establish a single panel. This would be  a decision taken by the DSB by consensus. Because 
the challenged actions had been  taken on the basis of US  national security interests, the United 
States  continue d to see no basis for this dispute. The United States  therefore  did not agree to 
establish a single panel under Article 9.1  of the DSU . 
8.4.  The representative of Canada  said that Canada d id not agree with the US view that actions 
taken pursuant to GATT 1994 Article XXI  were not subject to review by a WTO panel. Panels d id not 
have the discretion to decline exercising the jurisdiction conferred on them by the panel 's terms of 
reference. They also d id not have the discretion not to discharge the obligations imposed on them 
by Article 11 of the DSU. Accordingly, if GATT 1994 Article XXI  was invoked by a Member in a 
dispute, its applicability was a matter that the panel ha d to examine, unless con sideration of th at 
Article ha d been excluded from the panel 's terms of reference, which c ould only occur if the disputing 
parties agree d. The plain reading of Article 9.1 of the DSU provide d that a single panel had to  be 
established, whenever feasible, for  the examination of multiple complaints related to the same 
matter. These circumstances were met at the present meeting . Canada was disappointed that the 
United States had taken its position with regard to a single panel under Article 9.1  of the DSU . 
Canad a remain ed of the view that these disputes were related to the same matter . Canada, 
therefore, request ed the harmonization of the panel proceedings in the se disputes pursuant to 
Article  9.3 of the DSU.   
8.5.  The representative of the United  States  said that as  the United States had stated  earlier at the 
present meeting , the United States  saw no basis for this dispute as there were no findings a panel 
could make on Canada 's claims. Therefore, as there was nothing to examine, Article 9.3 of the DSU 
did not apply. In response to Canada 's reference to Article 9.3  of the DSU , and China 's earlier 
reference to that Article, that provision d id not contain any reference to DSB action . Article 9.3  of 
the DSU  therefore d id not authorize the DSB to make a decision on the mat ter of choosing panelists 
or on the harmonization of timetables. Therefore, the DSB did not need  and c ould not consider this 
issue at all.  
8.6.  The DSB took note  of the statements and agree d to establish a panel in accordance with the 
provisions of Article  6 of the DSU , with standard terms of reference.  
8.7.  The representatives of China , Colombia , the European Union , Guatemala , Hong Kong, China ; 
Iceland , India, Indonesia , Japan , Kazakhstan , Mexico , Norway , Qatar , the Russian Federation , 
the Kingdom of Saudi Arabia , Singapore , South Africa , Switzerland , Chinese Taipei , Thailand , 
Turkey , Ukraine  and the Bolivarian Republic of Venezuela  reserved their third -party rights to 
participate in the Panel's proceedings . 
9  UNITED  STATES – CERT AIN MEASURES ON STEE L AND ALUMINIUM PR ODUCTS  
A.  Request for the establishment of a panel by Mexico  (WT/DS551/11 ) 
9.1.  The Chairperson  recall ed that the DSB had considered this matter at its meeting o f 
29 October  2018, and had agreed to revert to it.  The Chairperson  drew attention to the 
communication from Mexico contained in document WT/DS551/11 , and invited the representative 
of Mexico to speak . 
9.2.  The representative of Mexico  said that Mexico welcome d the opportunity to address , once 
again , concerns over the measures  imposed by the United States on certain steel and aluminium 
products. Mexico consider ed that these measures raise d legal and systemic concerns . First, these 
measures raised l egal concerns  in terms of the nature of safeguard measures, regardless of how a 
Member characterize d such measures and of the domestic legal basis on which that Member  had 
adopt ed them. This necessarily ha d an impact on the applicability of the Agreement on Safeguards 
and, therefore, on the rights and obligations of Members under th at Agreement. Second, these WT/DSB/M/421  
 
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  concerns were legal in terms of the nature and scope of Article XXI of the GATT 1994 . That Article  
could  be invoked by Members as an exception . Therefore, this dispute raised issues regarding the 
type of measures that qualified under that Article and the way in which Members could  justify such 
measures  in accordance with this provision.  Mexico's  systemic  concerns stem med from the view that 
the United States seem ed to have of the relationship that exist ed between national security  issues 
and the WTO dispute settlement mechanism. The United States ha d indicated that:  "[i]ssues of 
national security are political matters not susceptible to review or capable of resolution by WTO 
dispute settlement."17 Mexico did  not agree with this view , since it appear ed to be inconsistent with 
the dispute settlement objectives and commitments of Members. It would also defeat the purpose 
and impede the functio n of the DSB  and, consequently, of the panels and the Appellate Body. It 
would also have an imp act on Members' rights under the covered agreements and, ultimately, would 
cause a crisis in the multilateral trading system. Because the aforementioned legal and systemic 
considerations were of great significance, Mexico was request ing, for the second tim e, the 
establishment of a panel with standard terms of reference. Given that there were nine requests for 
the establishment of a panel to address the same measures adopted by the United States, a single 
panel should be established under Article 9.1 of the DSU, in order to examine  the WTO-consistency 
of the  US measures. Finally , Mexico noted that , as in previous cases, the United States objected  to 
the establishment of a single panel. In this regard, Mexico consider ed that there wa s no legal basis 
or valid r eason s not to establish  a single panel , in accordance with Article 9.1 of the DSU, since the 
panel requests submitted at the present meeting  relate d to the same matter.  
9.3.  The representative of the United  States  said that t he United States was disappointed that 
Mexico ha d requested the establishment of a panel in this dispute for the  second time. As the United 
States had explained in its statement at the DSB meeting of 29 October 2018 addressing  Mexico' s 
panel request  in this dispute , because the United Stat es ha d invoked Article XXI of the GATT 1994, 
there was no basis for a panel to review Mexico' s claims of WTO -inconsistency. As there was no 
finding a panel could make other than to note that the United States ha d invoked Article XXI , the 
United States  did not see any point to this request. The United States also  recall ed that Mexic an 
and US authorities ha d been engaging in constructive discussions towards resolving concerns 
surrounding these matters . The United States was hopeful that these discussions m ight be concluded 
satisfactorily. Mexico had requested that a single panel be established under Article 9.1 of the DSU 
to examine various matters on the Agenda of the present  meeting. The United States d id not agree. 
For a single panel to be established to e xamine multiple complaints, the DSB must decide to establish 
a single panel. This would be  a decision taken by the DSB by consensus. Because the challenged 
actions had been  taken on the basis of US national security interests, the United States  continue d 
to see no basis for this dispute. The United States  therefore  did not agree to establish a single panel 
under Article 9.1  of the DSU .  
9.4.  The representative of  Japan  said that his delegation wished to make a statement in relation to 
items  6-11 and items 16 - 18 of the Agenda of the present meeting.  Japan ha d carefully listened to 
the views expressed by the United States and the complaining parties in these disputes at the 
29 October 2018 DSB meeting and at the present meeting . Japan note d that Article 3.7 of  the DSU 
stated that:  "[t]he aim of the dispute settlement mechanism is to secure a positive solution to a 
dispute " and "[a] solution mutually acceptable to the parties to a dispute and consistent with the 
covered agreements is clearly to be preferred ". As these disputes involve d issues that pose d a 
difficult challenge to th e WTO dispute settlement system , Japan encourage d the parties to these 
disputes to make every effort to seek a mutually acceptable solution even during the panel s' 
proceedings.  
9.5.  The DSB took note of the statements and agree d to establish a panel in accordance with the 
provisions of Article  6 of the DSU , with standard terms of reference.  
9.6.  The representatives of Canada , China , Colombia , the European Union , Guatemala , 
Honduras , Hong Kong, Chin a; Iceland , India, Indonesia , Japan , Kazakhstan , Norway , Qatar , 
the Russian Federation , the Kingdom of Saudi Arabia , Singapore , South Africa , Switzerland , Chinese 
Taipei , Thailand , Turkey , Ukraine  and the Bolivarian Republic of Venezuela  reserved their thi rd-party 
rights to participate in the Panel's proceedings . 
                                                
17 Communication from the United States, dated 15 June 2018, "United States – Certain Measures on 
Steel and Aluminium Products ", WT/DS551/10, 6 July 2018.  WT/DSB/M/421  
 
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  10  UNITED  STATES – CERT AIN MEASURES ON STEE L AND ALUMINIUM PROD UCTS  
A.  Request for the establishment of a panel by Norway  (WT/DS552/10 ) 
10.1.   The Chairperson  recall ed that the DSB had considered this matter at its meeting o f 
29 October  2018, and had agreed to revert to it.  The Chairperson  drew attention to the 
communication from Norway contained in document WT/DS552/10 , and invited the representative 
of Norway to speak . 
10.2.   The representative of Norway  said that a t the 29 October 2018  DSB meeting , Norway had 
requested the establishment of a panel in this dispute regarding US additional tariffs on certain steel 
and aluminium products of 25% and 10% respectively. At th e 29 October 2018  DSB meeting , 
Norway had outlined some important points related to th is dispute, which Norway would  not repeat 
at the present meeting . It was Norway 's firm view that the additional tariffs were inconsistent with 
the United States ' WTO obligations, in particular under the Agree ment on Safeguards. Norway also 
wished  to stress that, like in any other sector, concerns which any WTO Member ha d with respect 
to the economic conditions in its steel and aluminium industries had to  be addressed through 
measures compatible with the WTO Ag reement s. At the 29 October 2018  DSB meeting, the 
United  States had stated  that because Article XXI of the GATT 1994 ha d been invoked, "there is no 
basis for a WTO panel to review the claims of breach raised by Norway  [n]or is there any basis for 
a WTO pan el to review the invocation of Article XXI by the United States ". Norway wished to  explain 
why such arguments had to  be rejected. The U S position was not supported by the DSU. Article 1.1 
of the DSU provide d that all the multilateral agreements on trade in  goods were included as "covered 
agreements ". No provision – including Article XXI of the GATT 1994 – was "carved -out" from the 
compulsory jurisdiction to which the Members ha d agreed. Article 3 .2 of the DSU provide d that the 
dispute settlement system was "a central element in providing security and predictability to the 
multilateral trading system ". Article 3 .3 of the DSU provide d that the  prompt settlement of disputes 
was "essential to the effective functioning of the WTO and the maintenance of a proper b alance 
between the rights and obligations of Members ". The United States c ould not, consistent with these 
principles, unilaterally exclude disputes from a WTO panel 's jurisdiction. A Member 's mere invocation 
of a "national security " defen ce could not rende r a claim non -justiciable  without  allowing for the easy 
circumvention of WTO obligations. Such an approach  would mean that  a respond ing party  could, in 
theory, allege justification of a variety of protectionist interests under the guise of national securit y, 
and thereby avoid scrutiny of its measures based on its WTO obligations altogether. An interpretation 
of Article XXI of the GATT 1994 to this effect would render all obligations therein effectively 
unenforceable. Excluding this dispute from WTO review s imply because the U nited States had 
invoke d GATT 1994 Article XXI  would, therefore, impermissibly "diminish " Norway 's right under 
Article 23.1 of the DSU to "seek the redress of a violation ". Norway said that Article XXI of the GATT 
1994 was an affirmative defen ce to a claim of WTO -inconsistency, which the United States could 
invoke in dispute settlement proceedings, before a WTO panel. If the United States chose to do so, 
it bore the burden of demonstrating that its measures were, indeed, justified under th is provision. 
While Norway appreciated that matters of national security were sensitive, Norway was confident 
that, using the usual procedures set out in the DSU and other covered agreements, WTO panels 
were well -equipped to assess whether the United State s had adequately demonstrated that its 
measures were justified under GATT 1994 Article XXI . This was not, after all, the first sensitive 
dispute to come to the WTO. Indeed, Norway value d the WTO dispute settlement system precisely 
because of its tried and tested ability to handle sensitive disputes. Norway,  therefore , request ed 
once again that a panel be established  in this dispute,  with standard terms of reference. Like other 
co-complainants and regarding  Article 9.1 of the DSU, Norway wished to refer to t he fact that nine 
requests for the establishment of a panel, seven of these for the second time, had been  brought at 
the present meeting  in relation to the same US measures on imports of steel and aluminium. As all 
of these requests were related to the sam e matter, Norway request ed the establishment of a single 
panel  to examine these disputes.  
10.3.   The representative of the United  States  said that the United States was  disappointed that 
Norway ha d submitted a second panel request in this dispute. As the United States had explained in 
its statement at the DSB meeting of 29 October 2018 addressing  Norway' s panel request  in this 
dispute , because the United States ha d invoked Article XXI of the GATT 1994, there was no basis 
for a panel to review Norway' s claims of WTO -inconsistency. As there was no finding a panel could 
make other than to note that the United States ha d invoked Article XXI , the United States  did not 
see any point to this request. If the WTO were to undertake to review a Member 's invocation of 
Article XXI , and its assessment of its own essential security interests, this would undermine the WT/DSB/M/421  
 
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  legitimacy of the WTO 's dispute settlement system and even the viability of the WTO as a whole. 
Infringing on a sovereign 's right to determine, for itself, wh at was in its own essential security 
interests would run exactly contrary to the WTO reforms that were necessary in order for this 
organization to maintain any relevancy. Norway had requested that a single panel be established 
under Article 9.1 of the DSU to examine various matters on the Agenda of the present  meeting. The 
United States d id not agree. For a single panel to be established to examine multiple complaints, 
the DSB must decide  to establish a single panel. This would be  a decision taken by the DS B by 
consensus. Because the challenged actions had been  taken on the basis of US national security 
interests, the United States  continue d to see no basis for this dispute. The United States  therefore  
did not agree to establish a single panel under Article 9.1  of the DSU . 
10.4.   The DSB took note of the statements and agree d to establish a panel in accordance with the 
provisions of Article  6 of the DSU , with standard terms of reference.  
10.5.   The representatives of Canada , China , Colombia , the European Union , Guatemala , Hong Kong, 
China ; Iceland , India, Indonesia , Japan , Kazakhstan , Mexico , Qatar , the Russian Federation , the 
Kingdom of Saudi Arabia , Singapore , South Africa , Switzerland , Chinese Taipei , Thailand , Turkey , 
Ukraine  and the Bolivarian Republic of Venezuela  reserved their third -party rights to participate in 
the Panel's proceedings . 
11  UNITED  STATES – CERT AIN MEASURES ON STEE L AND ALUMINIUM PROD UCTS  
A.  Request for the establishment of a panel by the Russi an Federation  (WT/DS554/17 ) 
11.1.   The Chairperson  recall ed that the DSB had considered this matter at its meeting o f 
29 October  2018, and had agreed to revert to it.  She drew attention to the communication from the 
Russian Federation contained in document WT/DS5 54/17 , and  invited the representative of the 
Russian Federation to speak . 
11.2.   The representative of the Russian  Federation  said that Russia wished to refer to its statement 
made at the 29 October 2018 DSB meeting under this A genda item. At the present meeting, Russia 
request ed for the second time  that the DSB establish a panel to examine this  matter with standard 
terms of reference, as set forth in Article 7.1 of the DSU. Taking into account that there were nine 
similar  requests for the e stablishment of a panel against US measures on steel and aluminium  on 
the Agenda , Russia request ed the establish ment of a  single panel under Article 9.1 of the DSU  for 
these disputes . Under  the previous Agenda items at the present meeting, the U nited States had 
disagreed with the establishment of a single panel to examine those matters.  Russia  wished to note 
that in accordance with the provisions of Article 9.1 of the DSU : "[a] single panel should be 
established to examine such complaints whenever feasible ". Russia believed that in the current 
situation establishing a single panel  was feasible . At the present meeting, there were nine  requests 
for the establishment of a panel against the U nited States in relation to its  measures on steel and 
aluminium . The measures at issue in these requests re lated to the same matter. Russia had failed 
to hear from the U nited States any reason that would explain why a single panel could not be 
considered feasible in the current situation. Therefore, and in accordance with t he provisions of 
Article 9.1 of the DSU , Russia d id not see any obstacle that would prevent the  establish ment of a  
single panel.   
11.3.   The representative of the United  States  said that Russia 's second panel request in this dispute 
regrettably show ed its own dis regard for WTO rules. As the United States had explained in its 
statement at the DSB meeting of 29 October 2018 addressing  Russia 's panel request, because the 
United States ha d invoked Article XXI of the GATT 1994, there was no basis for a panel to review 
Russia' s claims of WTO -inconsistency.  Each sovereign ha d the power to decide, for itself, what 
actions were essential to its security, as was reflected in the text of GATT 1994 Article XXI.18 As 
there was no finding a panel could make other than to note tha t the United States ha d invoked 
Article XXI , the United States  did not see any point to this request.  The position of the United States 
on Article XXI went back more than 70 years, and remain ed the same in 2018 as it had been  in 
                                                
18 GATT 1994 Article XXI(b) (“Nothing in this Agreement sha ll be construed … (b) to prevent any 
contracting party from taking any action which it considers necessary  for the protection of its essential security 
interests  … (italics added).  WT/DSB/M/421  
 
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  198219, 194920, and indeed du ring the negotiation of the GATT itself.21 As the United States had 
noted previously, in 1982, when certain European actions had been  before the GATT Council, the 
European Economic Community and its member States had stated that Article XXI was a reflection  
of a Member 's "inherent rights".  They had stressed that "the exercise of these rights constituted a 
general exception, and required neither notification, justification, nor approval, a procedure 
confirmed by thirty -five years of implementation of the Gene ral Agreement ... [since] every 
contracting party was – in the last resort – the judge of its exercise of these rights. "22 In that same 
meeting, the United States, Singapore, New Zealand, Canada, Norway, the United Kingdom, and 
Australia had supported the E uropean view.23 In requesting this panel, however, Russia d id not even 
act consistently with the view it expressed in 2017, less than one year ago . In another dispute, 
Russia had expressed its understanding of Article XXI that a determination that an action was 
necessary for the protection of a Member 's essential security interests, and a determination of what 
those essential security interests  were, was at the sole discretion of t hat Member. The United States 
had agreed with Russia 's perspective on Article XXI.24 The text of Article XXI ha d not changed in the 
past year – only Russia 's interests ha d. That was not a sound basis for understanding WTO rules, 
and Russia 's wholly contradi ctory legal positions d id not contribute to the legitimacy of the WTO 's 
dispute settlement system. If Russia maintain ed its misguided request for a panel to make findings 
that the United States ha d not acted consistently with WTO rules in this dispute, the re was no finding 
a panel could make other than to note that the United States ha d invoked Article XXI. Russia had 
requested that a single panel be established under Article 9.1 of the DSU to examine various matters 
on the Agenda of the present  meeting. Th e United States d id not agree. For a single panel to be 
established to examine multiple complaints, the DSB must decide  to establish a single panel. This 
would be  a decision taken by the DSB by consensus. Because the challenged actions had been  taken 
on th e basis of US national security interests, the United States  continue d to see no basis for this 
dispute. The United States  therefore  did not agree to establish a single panel under Article 9.1  of 
the DSU . 
11.4.   The representative of the Russian  Federation  said that Russia w ished  to refer to its statement 
made during its second intervention at the 29 October 2018 DSB meeting  regardin g the same 
Agenda item. In the event that  no single panel was established, Russia request ed that Article 9.3 of 
the DSU be applied.   
11.5.   The representative of the Brazil  said that Brazil's statement applie d to items 6-11 and 16 -18 
of the Agenda of the present meeting.  From a multilateral perspective, Brazil ha d on many occasions 
stressed its concern about t he systemic impact  of restricti ve measures under S ection 232, in 
particular  the consequences of a broad  interpretation of the concept of nati onal security interests, 
which could  be used to accommodate protectionist measures. With regard to the present discussion 
about the nature of GATT  1994 Article XXI and in light of previous statements made at the present 
meeting , it was important to keep in mind the distinction between exceptions and derogation s in the 
legal framework of the GATT /WTO . When a provision establishe d an exception to an o bligation, it 
mean t that if there was  a violation  it could  be justified  if certain conditions we re met. An exception 
to an obligation  was an affirmative defen ce conditioned upon the respondent demonstrating that the 
measure at issue f ell within the scope of the exception. An exception  therefore  did not exclude its 
subject matter from the jurisdiction of the WTO dispute settlement system , but only provide d a 
means, through  affirmative defen ce, for a respondent  to justify a measure which ot herwise would 
breach the rules. If a subject matter were to  be excluded from certain obligations contained in the  
WTO rules  that provision would establish  a derogation of such issue. This was the case, for instance, 
of Article II I:8(a) of the GATT 1994, whi ch exclude d government procurement from the national 
treatment obligation set out in Article III . In this case, there was no need for the responde nt to 
present an a ffirmative defenc e and demonstrate that its measure was justified . This was because 
                                                
19 GATT Council, Minutes of Meeting Held on 7 May 1982, C/M/157, p. 8.  
20 Contracting Parties, Summary Record of the Twenty -Second Meeting Held on 8 June 1949, 
GATT/CP.3/SR.22, p. 3.  
21 See U.S. Answers Questions from the Panel and the Russian Federation, Russia – Measures Concerning 
Traffic in Transit (WT/DS512), paras. 1 -15 (expla ining negotiating history, including statements by U.S. delegate; 
available at 
https://ustr.gov/sites/default/files/enforcement/DS/US.3d.Pty.As.Pnl.and.Rus.Qs.fin.%28public%29.pdf).  
22 GATT Council, Minutes of Meeting Held on 7 May 1982, C/M/157, p. 10.  
23 GATT Council, Minutes of Meeting Held on 7 May 1982, C/M/157, pp. 7 -11. 
24 See, e.g., U.S. Third -Party Submission Regarding GATT Article XXI (Nov. 7, 2017) (available at 
https://ustr.gov/issue -areas/enforcement/dispute -settlement -proceedings/wto -dispute -settlement/pending -
wto-dispute -35). WT/DSB/M/421  
 
- 25 - 
 
  under a derogation, the obligations d id not apply to the issue . Measures taken under Article XXI  of 
the GATT 1994  had been  framed as possible exceptions, not as derogation s.  
11.6.   The representative of the United  States  said that as the United States had  previously stated, 
it saw no basis for this dispute as there were no findings a panel c ould make on Russia 's claims. 
Therefore, as there was nothing to examine, Article 9.3 of the DSU did not apply. In response to 
Russia 's reference to Article 9.3  of the DSU , that pr ovision d id not contain any reference to DSB 
action, and therefore d id not authorize the DSB to make a decision on the matter of choosing 
panelists or on the harmonization of timetables. Therefore, the DSB need ed not and c ould not 
consider this issue at al l.  
11.7.   The DSB took note of the statements and agree d to establish a panel in accordance with the 
provisions of Article  6 of the DSU , with standard terms of reference.  
11.8.   The representatives of Canada , China , Colombia , the European Union , Guatemala , Hong Kong, 
China; Iceland , India, Indonesia , Japan , Kazakhstan , Mexico , Norway , Qatar , the Kingdom of Saudi 
Arabia , Singapore , South Africa , Switzerland , Chinese Taipei , Thailand , Turkey , Ukraine  and the 
Bolivarian Republic of Venezuela  reserved their third -party rights to participate in the Panel's 
proceedings . 
12  CANADA – ADDITIONAL DUTIES ON CERTAIN PR ODUCTS FROM THE UNIT ED STATES  
A.  Request for the establishment of a panel by the United  States (WT/DS557/2 ) 
12.1.   The Chairperson  recall ed that the DSB had considered this matter at its meeting o f 
29 October  2018, and had agreed to revert to it.  She drew attention to th e communication from the 
United  States contained in document WT/DS557/2 , and  invited t he representative of the 
United  States to s peak.  
12.2.   The representative of the United  States  said that as  discussed at  the last DSB meeting of 
29 October 2018, and as noted at the present meeting , the actions the United States ha d taken on 
imports of steel and aluminium  pursuant to Section 232 were to address a threat to its national 
security. Every sovereign ha d the right to take action it consider ed necessary for the protection of 
its essential security. This inherent right had not been forfeited in 1947 with the GATT or in 1994 
with the creation of the WTO. Instead, this right had been  enshrined in Article XXI of the GATT 1994. 
The actions of the United States were taken pursuant to and justified by this Article. What remain ed 
inconsistent with the WTO Agreement, however, was the unilateral retali ation against the United 
States by various Members, including Canada. These Members pretend ed that the US actions under 
Section 232 were so -called "safeguards ", and claim ed that their unilateral, retaliatory duties 
constitute d suspension of substantially e quivalent concessions under the WTO Agreement on 
Safeguards. The United States c ould not abide this level of hypocrisy. Just as these Members 
appear ed to be ready to undermine the WTO dispute settlement system by ignoring the plain 
meaning of Article XXI a nd 70 years of practice, so too were they ready to undermine the WTO by 
pretending to follow its rules while imposing measures that blatantly disregard ed them. This was all 
too apparent, not only to the United States, but to the Members themselves. Canada did not seriously 
believe that the US actions under Section 232 were safeguard measures. If it did, Canada would 
have notified the Council for Trade in Goods of its suspension of concessions and other obligations, 
as would have been  required under the Safe guards Agreement if its retaliatory duties had been  in 
response to a US safeguard action. Of course, Canada ha d not followed the WTO rules for safeguards 
because it d id not actually believe the US measures were safeguards. There was no doubt that Article 
XIX of the GATT 1994 could  be invoked by a Member to depart temporarily from its commitments 
in order to take emergency action with respect to increased imports. The United States, however, 
was not invoking Article XIX as a basis for its Section 232 actions  and ha d not even utilized its 
domestic law on safeguards. Thus, Article XIX and the Safeguards Agreement were not relevant to 
the US actions under Section 232. Because the United States was not invoking Article XIX, there 
was no basis for another Member t o pretend that Article XIX should have been invoked and to use 
safeguards rules that were simply inapplicable. The additional, retaliatory duties were nothing other 
than duties in excess of Canada 's WTO commitments and were applied only to the United States, 
contrary to Canada 's most -favoured-nation obligation. The United States w ould not permit its 
businesses, farmers, and workers to be targeted in this WTO -inconsistent way. For these reasons, WT/DSB/M/421  
 
- 26 - 
 
  the United States request ed that the DSB establish a panel to examine this matter with standard 
terms of reference.   
12.3.   The representative of Canada  said that Canada regret ted that the United States ha d submitted 
a second panel request in this dispute. Canada 's countermeasures , imposed on  1 July 2018 against 
certain products from the United States , were fully consistent with Canada 's international trade 
obligations . Canada w ould vigorously defend its countermeasures in this dispute. Canada 's 
countermeasures were in direct response to the u nwarranted res trictions imposed by the 
United  States against Canadian steel and aluminium  exports. Canada w ould immediately remove its 
countermeasures as soon as the United States would remove its unwarranted tariffs against 
Canadian steel and alumin ium.  
12.4.   The representative of Japan  said that Japan's statement was in relation to items 12-15 of the 
Agenda of the present meeting. Japan wished to refer  to its statement made at the 29 October 2018  
DSB meeting. As Members m ight recall, in that statement, Japan had expressed its views on the 
nature of the specific measures at issue in these disputes , as well as on certain procedural action s 
taken by Japan in response to the underlying US measures in order to reserve its rights under the 
Agreement  on Safeguard s.  
12.5.   The DSB took note of the statements and agree d to establish a panel in accordance with the 
provisions of Article  6 of the DSU , with standard terms of reference.   
12.6.   The representatives of China , the European Union , Guatemala , India, Indonesia , Japan , 
Kazakhstan , Mexico , Norway , the Russian Federation , Singapore , South Africa , Switzerland , 
Chinese  Taipei , Thailand , Turkey , Ukraine , the Bolivarian Republic of Venezuela  reserved their third -
party rights to participate in the Panel's proceedings . 
13  CHINA – ADDITIONAL DUTIES ON CERTAIN PRODUCTS FRO M THE UNITED STATES  
A.  Request for the establishment of a panel by the United  States  (WT/DS558 /2) 
13.1.   The Chairperson  recall ed that the DSB had considered this matter at its meeting o f 
29 October  2018, and had agreed to  revert to it.  She drew attention to the communication from the 
United  States contained in document WT/DS558/2 , and  invited the repres entative of the 
United  States to speak.  
13.2.   The representative of the United  States  said that as  discussed at  the 29 October 2018 DSB 
meeting, and as noted at the present meeting , the actions the United States ha d taken on imports 
of steel and aluminium  pursuant to Section 232 were to address a threat to its national security. 
Every sovereign ha d the right to take action it consi dered necessary for the protection of its essential 
security. This inherent right had not been forfeited in 1947 with the GATT or in 1994 with the creation 
of the WTO. Instead, this right had been  enshrined in Article XXI of the GATT 1994. The actions of 
the United States were taken pursuant to and justified by this Article.  What remained inconsistent 
with the WTO Agreement, however, was the unilateral retaliation against the United States by 
various Members, including China. These Members pretended that th e US actions under Section 232 
were so -called "safeguards" , and claimed that their unilateral, retaliatory duties constituted 
suspension of substantially equivalent concessions under the WTO Agreement on Safeguards. The 
United States could not abide this l evel of hypocrisy. Just as these Members appeared to be ready 
to undermine the WTO dispute settlement system by ignoring the plain meaning of Article XXI and 
70 years of practice, so too were they ready to undermine the WTO by pretending to follow its rule s 
while imposing measures that blatantly disregarded them.  This was all too apparent, not only to the 
United States, but to the Members themselves. Clearly, China did not seriously believe that the US 
actions under Section 232 were safeguard measures since it failed to comply with the most basic 
elements of the Safeguards Agreement that would be necessary to take the action it did.  Suspension 
of concessions and other obligations under the Safeguards Agreement require d a multi -step process 
that had to take p lace within 90 days from the application of a safeguar d measure. That process 
entailed  certain procedures and considerations that China ha d not satisfied.  If China had truly 
considered the US actions under Section 232 to be safeguards, it would certainly h ave respected an 
obligation to allow 30 days for consultations and to wait 30 days to implement  its suspension of 
concessions.  But China did not comply with either of these obligations. Moreover, China ha d not 
even attempted to address whether its retaliat ion was in response to an alleged "safeguard " taken WT/DSB/M/421  
 
- 27 - 
 
  as a result of an absolute increase in imports. If there had been an absolute increase in imports, the 
right to suspend substantially equivalent concessions u nder the Safeguard Agreement could  not 
have been exercised for the first three years of the safeguard measure. China 's blatant disregard 
for these provisions of the Safeguards Agreement prove d that China wa s not serious about its 
contention that the US a ctions under Section 232 we re sa feguard measures  or that China wa s 
exercising a right under the Safeguards Agreement. There was no doubt that Article XIX of the GATT 
1994 could be invoked by a Member to depart temporarily from its commitments in order to take 
emergency action with respect to increased i mports. The United States, however, was not invoking 
Article XIX as a basis for its Section 232 actions and had not even utilized its domestic law on 
safeguards. Thus, Article XIX and the Safeguards Agreement were not relevant to the US actions 
under Secti on 232. Because the United States was not invoking Article XIX, there was no basis for 
another Member to pretend that Article XIX should have been invoked and to use safeguards rules 
that were simply inapplicable. The additional, retaliatory duties were no thing other than duties in 
excess of China 's WTO commitments and were applied only to the United States, contrary to China 's 
most-favoured-nation obligation. The United States would not permit its businesses, farmers, and 
workers to be targeted in this WTO -inconsistent way. For these reasons, the United States requested 
that the DSB establish a panel to examine this matter with standard terms of reference.  
13.3.   The representative of China  said that China wishe d to express its strong disappointment with 
the US de cision to request the establishment of a panel to examine the subject matter of th is dispute. 
It was well known that, on 23 March 2018, the U nited States had imposed 25 percent and 10 percent 
of additional import dut ies respectively on certain steel products and aluminium  products from China 
and other Members. China wished to refer to its statement made at the present meeting under 
Agenda item 6 . China wished to reiterate that the US measures at issue were in essence saf eguard 
measures. Since the U nited States had refused to hold consultation s with China for trade 
compensation under the Agreement on Safeguards and the GATT 1994, China had little choice but 
to exercise its legitimate right to introduce appropriate suspensi on measures according to the 
relevant provisions there under . China st ood ready to safeguard its legitimate interests in the  related 
dispute settlement  proceedings.   
13.4.   The DSB took note of the statements and agree d to establish a panel in accordance with the 
provisions of Article  6 of the DSU , with standard terms of reference.  
13.5.   The representatives of Canada , the European Union , Guatemala , India, Indonesia , Japan , 
Kazakhstan , Mexico , Norway , the Russian Federation , Singapore , South Africa , Switzerland , 
Chinese  Taipei , Thailand , Turkey , Ukraine  and the Bolivarian Republic of Venezuela  reserved their 
third-party rights to participate in the Panel's proceedings . 
14  EUROPEAN UNION – ADDITIONAL DUTIES ON CE RTAIN PRODUCTS FROM THE 
UNITED  STATES  
A.  Request for the establ ishment of a panel by the United  States  (WT/DS559/2 ) 
14.1.   The Chairperson  recall ed that the DSB had considered this matter at its meeting o f 
29 October  2018, and had agreed to revert to it.  She drew attention to th e communication from the 
United  States contained in document WT/DS559/2 , and  invited t he representative of the 
United  States to speak . 
14.2.   The representative of the United  States  said that as discussed  at the last DSB meeting of 
29 October 2018, and as noted at the present meeting, the actions the United States had taken on 
imports of steel and aluminium pursuant to Section 232 were to address a threat to its national 
security. Every sovereign had the right to take action it considered necessary for the protection of 
its essential security. This inh erent right had not been forfeited in 1947 with the GATT or in 1994 
with the creation of the WTO. Instead, this right had been enshrined in Article XXI of the GATT 1994.  
The actions of the United States were completely justified under this Article.  What re mained 
inconsistent with the WTO Agreement, however, was the unilateral retaliation against the United 
States by various Members, including the European Union.  These Members pretended that the US 
actions under Section  232 were so -called "safeguards ", and claimed that their unilateral, retaliatory 
duties constituted suspension of substantially equivalent concessions under the WTO Agreement on 
Safeguards. The United States could not abide this level of hypocrisy. Just as these Members 
appeared to be rea dy to undermine the WTO dispute settlement system by ignoring the plain WT/DSB/M/421  
 
- 28 - 
 
  meaning of Article XXI and 70 years of practice, so too were they ready to undermine the WTO by 
pretending to follow its rules while imposing measures that blatantly disregarded them.  The 
European Union 's willingness to disregard WTO rules was apparent in its characterization of the US 
actions under Section 232 as safeguard measures. This fiction require d the European Union to ignore 
the facts that contradict ed its narrative. As noted, the US actions on steel and aluminium  had been  
taken under Section 232, a national security statute that expressly relate d to imports that threaten ed 
to impair the national security of the United States. The President of the United States had made his 
determinations on the basis of lengthy and detailed reports by the government department 
responsible for this national security purpose. The US actions had not been taken pursuant to 
Section  201 of the Trade Act of 1974 that authorize d the imposition of a safe guard measure under 
US domestic law. There was no doubt that Article XIX of the GATT 1994 could  be invoked by a 
Member to depart temporarily from its commitments in order to take emergency action with respect 
to increased imports. The United States, howeve r, was not invoking Article XIX as a basis for its 
Section 232 actions and had not utilized its domestic law on safeguards. Thus, Article XIX and the 
Safeguards Agreement were not relevant to the US actions under Section 232. Because the United 
States was not invoking Article XIX, there was no basis for another Member to pretend that 
Article  XIX should have been invoked and to use safeguards rules that were simply inapplicable. The 
additional, retaliatory duties were nothing other than duties in excess of t he European Union's WTO 
commitments and were applied only to the United States, contrary to the European Union's most -
favoured -nation obligation. The United States would not permit its businesses, farmers, and workers 
to be targeted in this WTO -inconsisten t way. For these reasons, the United States requested that 
the DSB establish a panel to examine this matter with standard terms of reference.  
14.3.   The representative of the European  Union  said that as it had done at the 29 October 2018 
DSB meeting, the EU w ould speak only under this Agenda item . The EU  had not and w ould not take 
the floor under the two preceding and the subsequent Agenda items that all concern ed panel 
requests filed by the United States against measures by various Members in respon se to the same 
US steel and aluminium measures. This was, again, to avoid repetition . However, the spirit of the 
statement which the EU  would make also applied  to the aforementioned other Agenda items. As the 
EU had  said at the 29 October 2018 DSB  meeting , the EU respected  the right of the United States 
to bring this matter to WTO dispute settlement . However, the EU  firmly believe d that its measures 
were justified. The EU w ould not repeat the entire explanation it had given  at the 29 October 2018 
DSB meeting . Instead, the EU wished  to refer to those statements , which remain ed fully valid as of 
the present meeting . Some of the things the EU  had heard at the 29 October 2018 DSB  meeting  
warrant ed a response at the present meeting . Notably, the EU had  heard from t he United States at 
the 29 October 2018 DSB  meeting  that Article XIX of the GATT and the Safeguards Agreement 
should be considered irrelevant because the U nited States  was not invoking these as a basis for its 
Section 232 measures on steel and aluminium. T his approach would be fine if Article XIX and the 
Safeguards Agreement had been  nothing other than exceptions which a Member could  choose to 
invoke or not invoke when departing from its obligations. The fact of the matter however was that 
the multilateral rules in question were not just exceptions. Not only d id they specify procedures that 
had to  be followed when taking a safeguard, but they also g ave important rights to other Members. 
Among these rights was, importantly, the right to suspend equivalent obligations against the M ember 
taking a safeguard. This wa s one of the reasons why the existence of a safeguard measure was and 
had to be an objective question and not depend entirely on whether the safeguard -taking Member 
also c haracterized  its measure as such, invoke d Article XIX of the GATT  1994 or accordingly notifie d 
the WTO. That the U nited States  had characterized  its measures differently and had respected none 
of the prescribed procedures and requirements for the legal imposition of safeguard measur es could 
not possibly p lace the US in the advantageous position of escaping the permitted response to a 
safeguard. At the 29 October 2018 DSB  meeting , the United States had said nothing that had called 
into question th e fact th at its Section 232 measures o n steel and aluminium ha d all the essential 
elements of what the WTO Agreement consider ed a safeguard measure. Instead, at the 
29 October  2018 DSB  meeting the United States had called the actions of the EU and other Members 
"hypocritical ". The United State s also contended that these Members  "eagerly seek to undermine 
the dispute settlement system by throwing out the plain meaning of Article XXI and 70 years of 
practice " and that they "are prepared to undermine the WTO by taking measures blatantly against 
WTO rules ". This dispute w ould provide the perfect opportunity to demonstrate that the EU  actions 
were a permitted and proportionate response to the US Section 232 measures on steel and 
aluminium.  Regardless , the EU  failed to see how the EU  could undermine  the WTO by resorting to a 
right under the WTO Agreement and by following the procedure for its exercise. As for "throwing out 
the plain meaning of Article XXI and 70 years of practice ", the EU struggle d to understand what the 
US ha d in mind, except that t hese 70 years had presented few, if any cases of abuse like at present. WT/DSB/M/421  
 
- 29 - 
 
  In any event , the EU welcome d US interest in the plain meaning of Article XXI, which w ould be 
important in the separate disputes discussed previously at the present meeting . Finally, t he EU 
prefer red to let the facts respond to the accusation coming from the United States that the EU and 
other Members were  seeking to undermine the WTO dispute settlement system. The EU believe d 
that its statements at the present meeting  and at the 29 Oct ober 2018 DSB  meeting also sufficiently  
address ed Brazil 's remark at the 29 October 2018 DSB  meeting , to the effect that unilateral 
measures undermine d the proper procedures set out in the covered agreements. The EU had 
adopted its measures under Article 8  of the Safeguards Agreement and followed its procedures in 
every detail.   
14.4.   The DSB took note of the statements and agree d to establish a panel in accordance with the 
provisions of Article  6 of the DSU , with standard terms of reference.  
14.5.   The representatives of Canada , China , Guatemala , India, Indonesia , Japan , Kazakhstan , 
Mexico , Norway , the Russian Federation , Singapore , South Africa , Switzerland , Chinese Taipei , 
Thailand , Turkey , Ukraine , the Bolivarian Republic of Venezuela  reserved the ir third -party rights to 
participate in the Panel's proceedings . 
15  MEXICO – ADDITIONAL DUTIES ON CERTAIN PR ODUCTS FROM THE UNIT ED STATES  
A.  Request for the establishment of a panel by the United  States (WT/DS560/2 ) 
15.1.   The Chairperson  recall ed that the DSB had considered this matter at its meeting o f 
29 October  2018, and had agreed to revert to it.  She drew attention to the communication from the 
United States contained in document WT/DS560/2 , and  invited the representative of the United 
States to speak.  
15.2.   The rep resentative of the United  States  said that as discussed  at the last DSB meeting of 
29 October 2018, and as noted at the present meeting, the actions the United States had taken on 
imports of steel and aluminium pursuant to Section 232 were to address a thr eat to its national 
security. Every sovereign had the right to take action it considered necessary for the protection of 
its essential security. This inherent right had not been forfeited in 1947 with the GATT or in 1994 
with the creation of the WTO. Inste ad, this right had been enshrined in Article XXI of the GATT 1994. 
The actions of the United States were completely justified under  this Article. What remained 
inconsistent with the WTO Agreement, however, was the unilateral retaliation against the United 
States by various Members including Mexico . These Members pretended that the US actions under 
Section  232 were so -called "safeguards ", and claimed that their unilateral, retaliatory duties 
constituted suspension of substantially equivalent concessions unde r the WTO Agreement on 
Safeguards. The United States could not abide this level of hypocrisy. Just as these Members 
appeared to be ready to undermine the WTO dispute settlement system by ignoring the plain 
meaning of Article XXI and 70 years of practice, s o too were they ready to undermine the WTO by 
pretending to follow its rules while imposing measures that blatantly disregarded them. This was all 
too apparent, not only to the United States, but to the Members themselves. Clearly, Mexico did not 
seriously  believe that the US actions under Section 232 were safeguard measures  since it had not 
even notified  the Council for Trade in Goods of its suspension of concessions and other obligations, 
as would have been required under the Safeguards Agreement if its r etaliatory duties had been in 
response to a US safeguard action. Of course, Mexico  had not followed the WTO rules that would 
apply in the safeguards context  because  it did not  in reality consider  the US measures to be 
safeguards. There was no doubt that Article XIX of the GATT 1994 could be invoked by a Member to 
depart temporarily from its commitments in order to take emergency action with respect to increased 
imports. The United States, however, was not invoking Article XIX as a basis for its Section 232 
actions and had not utilized its domestic law on safeguards. Thus, Article XIX and the Safeguards 
Agreement were not relevant to the US actions under Section 232.  Because the United States was 
not invoking Article XIX, there was n o basis for another Member to pretend that Article XIX should 
have been invoked and to use safeguards rules that were simply inapplicable. The increased, 
retaliatory duties were nothing other than duties applied only to the United States, contrary to 
Mexic o's most -favoured -nation obligation.  The United States would not permit its businesses, 
farmers, and workers to be targeted in this WTO -inconsistent way. For these reasons, the 
United  States requested that the DSB establish a panel to examine this matter w ith standard terms 
of reference.  WT/DSB/M/421  
 
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  15.3.   The representative of Mexico  said that w ith regard to the request for the establishment of a 
panel by the United States regarding  the duties applied to US products, and as previously stated, 
Mexico consider ed that this disp ute should not have been brought to the WTO, as it was based on a 
measure that had been  adopted in the exercise of a right expressly conferred by the North American 
Free Trade Agreement (NAFTA). In this regard, any concern arising from the application of t he 
measure s at issue  should be settled within the relevant dispute settlement system and on the basis 
of the applicable agreement . The current situation was regrettable. On the  one hand, the 
United  States ha d adopted measures on the alleged grounds of "national security" and ha d indicated 
that these measures were not subject to dispute settlement . On the other hand, the United States 
challeng ed the measures at issue adopted by Mexico. Mexico was prepared to de fend the consistency 
of its measures with WTO rules.  
15.4.   The representative of Brazil  said that Brazil's statement applie d to items  12 - 15 of the Agenda 
of the present meeting. Brazil consider ed that, in general, unilateral measures taken by Members 
on any grounds  undermine d the proper procedures set out by the covered agreements to deal with 
trade disputes and the WTO rules-based system . In that sense, Brazil w ished  to recall that Article 
23 of the DSU provide d that Members wishing to seek the redress of a v iolation or other nullification 
or impairment of benefits "shall have recourse to, and abide by, the rules and procedures of " the 
DSU. Article 23 of the DSU had been  a critical provision in the negotiations that had led to the new 
DSU and had been meant to curb unilateral measures. Brazil nevertheless wished to highlight the 
exceptional circum stances under which panels under these Agenda items had  been established at 
the present meeting . Notably, the actions that g ave rise to the measures at issue were devoid of 
any legal justification and reflect ed a clear protectionist intent ion.  Therefore , Brazil w ished  to stress 
that reactions to those illegal measures had to  be seen in a different light than in  normal situations.  
15.5.   The DSB took note of the statem ents and agree d to establish a panel in accordance with the 
provisions of Article  6 of the DSU , with standard terms of reference.  
15.6.   The representatives of Canada , China , the European Union , Guatemala , India, Indonesia , 
Japan , Kazakhstan , Norway , the Russian Federation , Singapore , Switzerland , Chinese Taipei , 
Thailand , Turkey , Ukraine , the Bolivarian Republic of Venezuela  reserved their third -party rights to 
participate in the Panel's proceedings . 
16  UNITED  STATES – CERT AIN MEASURES ON STEE L AND ALUMINIUM PRODUCTS  
A.  Request for the establishment of a panel by Turkey ( WT/DS564/15 ) 
16.1.   The Chairperson  recall ed that the DSB had considered this matter at its meeting on 
29 October 2018, and had agreed to revert to it. She d rew attention to the communication from 
Turkey contained in document WT/DS564/15 , and invite d the representative of Turkey to speak.  
16.2.   The representative of Turkey  said that as Turkey  had s tated at the 29  October 2018 DSB 
meeting , Turkey regret ted that it had to request the establishment of a panel  in this dispute. 
However,  the United States had left Turkey no other choice. Turkey therefore  request ed, a t the 
present meeting and  for the  second time, that the DSB establish a panel to examine this matter with 
standard terms of reference. Turkey did  not wish to repeat the statement it had made at the  
29 October 2018 DSB meeting , in which  Turkey ha d clearly made its position known . The US 
measures in this dispute we re WTO -inconsistent, and the national security justification that the 
United States had put  forward for these  measure s was based on an incorrect reading of  Article XXI. 
Turkey 's disagreement with the US  interpretation of the nati onal security provision within Article XXI 
was compound ed by the fact that Turkey 's exports to the United States were twice as high as  duties 
imposed on  exports of other Members  to the United States . The entire structure of international 
trade law risked being eroded i f Members were authorized to use Article XXI in this manner . Turkey 
furthermore firmly reject ed the US co ntention that a WTO panel d id not have jurisdiction over th is 
dispute  because the responding  Member had chose n to invoke Article XXI. Rather, a WTO panel 
would have to  conduct an objective assessment of the matter, and to  examine the claims by the 
complain ing part y. Should a WTO  panel reach the conclusion that it was appropriate  to consider the 
US defen ce under Article XXI, th at panel ha d to determine whether the terms of that provision ha d 
been satisfied. It would be unacceptable for such panel to abdicate its duty to exercise its jurisdiction 
simply because the responding  Member had chose n to invoke an exception s provision. As Turkey  
had previously stated, and as other Members ha d also  stated, the United States ha d effectively taken WT/DSB/M/421  
 
- 31 - 
 
  safeg uard measure s, but without observing the requirements of Article XIX of the GATT 1994 and 
of the Agreement on Safeguards. Turkey therefore request ed the establishment of a panel pursuant 
to Article 6 of the DSU. Turkey request ed the establishment of a sing le panel , pursuant to Article  9.1 
of the DSU, for t his dispute and the related disputes on the same US measures on imports of steel 
and aluminium in respect of which requests for the establishment of a panel had been placed  on the 
Agenda  of the present mee ting.  
16.3.   The representative of the United  States  said that th e United States regret ted that Turkey ha d 
moved forward with this second request for the establishment of a panel. As the United States had 
explained in i ts statement made at the last DSB meeting of 29 October 2018 addressing  Turkey's 
panel request, because the United States had invoked Article XXI of the GATT 1994, there was no 
basis for a panel to review Turkey's claims of WTO -inconsistency. There was no finding a panel could 
make other than to note that the United States has invoked Article XXI. If the WTO were to undertake 
to review an invocation of Article XXI, this would undermine the legitimacy of the WTO's dispute 
settlement system and even the viability of the WTO as a whol e. Infringing on a sovereign's right to 
determine, for itself, what was in its own essential security interests would run exactly contrary to 
the WTO reforms that were necessary in order for this organization to maintain any relevancy. 
Turkey had requested  that a single panel be established under Article 9.1 of the DSU to examine 
various matters on the Agenda of the present meeting. The United States did not agree. For a single 
panel to be established to examine multiple complaints, the DSB must decide  to establish a single 
panel. This would be  a decision taken by the DSB by consensus. Because the challenged actions had 
been taken on the basis of US national security interests, the United States continued to see no 
basis for this dispute. Therefore, the Unit ed States did not agree to establish a single panel under 
Article 9.1 of the DSU.  
16.4.   The DSB took note of the statements and agree d to establish a panel in accordance with the 
provisions of Article  6 of the DSU , with standard terms of reference.  
16.5.   The represen tatives of Canada , China , Colombia , the European Union , Guatemala , Hong Kong, 
China ; Iceland , India, Indonesia , Japan , Kazakhstan , Mexico , Norway , Qatar , the 
Russian  Federation , the Kingdom of Saudi Arabia , Singapore , Switzerland , Chinese Taipei , Thailand , 
Ukraine  and the Bolivarian Republic of Venezuela  reserved their third -party rights to participate in 
the Panel's proceedings . 
17  UNITED  STATES – CERT AIN MEASURES ON STEE L AND ALUMINIUM PROD UCTS  
A.  Request for the establishment of a panel by India ( WT/DS547 /8) 
17.1.   The Chairperson  drew attention to the communication from India contained in document 
WT/DS547/8, and invite d the representative of India to speak.  
17.2.   The representative of India said that o n 11 November  2018, India had submitted its request 
for the establishment of a panel in this dispute regarding the US additional tariffs on certain steel 
and aluminium products of 25% and 10% respectively. With its  request, India join ed eight other 
co-complainants who sought  to bring t he US steel and aluminium tariffs before a WTO panel. This 
collective resort to dispute settlement reflect ed the serious concern of the Membership over US 
actions. It also reflect ed trust and confidence in the WTO as a forum for resolving international tra de 
disputes. The nine panel requests reflect ed a shared conviction among the co -complainants that the  
addition al US steel and aluminium tariffs we re inconsistent with the WTO obligations of the 
United  States. The additional US duties were, in essence, safe guard measures because they 
depart ed from US obligations under the GATT  1994 and were designed to protect, in an emergency 
action, domestic industries alleged to  have suffer ed injury at the hands of competing imports. The 
US steel and aluminium tariffs als o violate d fundamental principles of the GATT 1994. The 
United States  had impose d duties on imports at levels higher than those provided for in the US 
Schedule of Concessions. Moreover, the United States ha d granted select Members exemptions to 
its steel and aluminium tariffs. No such exemptions ha d been extended to the nine co -complainants. 
The US measures, therefore, involve d a material difference in the treatment of imports from different 
Members. At the 29 October 2018 DSB Meeting , the United St ates had asserted that measures taken 
pursuant to the national s ecurity exceptions were non -justiciable within the WTO dispute settlement 
system, and that "if the WTO were to undertake to review an invocation of Article XXI, this would 
undermine the legiti macy of the WTO 's dispute settlement system and even the viability of the WTO WT/DSB/M/421  
 
- 32 - 
 
  as a whole ". On the contrary, India share d the widely held view, that  the credibility of the WTO 
would  be severely undermined  if it failed  to provide a system of legal review of unilateral  and 
protectionist measures by Members. Article XXI of the GATT 1994 wa s an affirmative defence and 
therefore, like other exceptions, c ould be an integral part of the legal evaluation of a domestic 
measure under the WTO Agreement. Article XXI was in no way a provision limiting the jurisdiction 
of WTO panels and the Appellate Body. India had requested WTO consultations with the 
United  States in this dispute  on 18 May 2018, and had held such consultations with the United States 
on 20 July 2018. Unf ortunately, these consultations had failed to resolve th is dispute. Accordingly, 
India request ed that a panel be established with standard terms of reference. Like other 
co-complainants , and in reference to Article 9.1 of the DSU, India request ed the estab lishment of a 
single panel to examine all nine complaints brought at the present meeting  in relation to the same 
US measures on imports of steel and aluminium, as all nine panel requests were related to the same 
matter. As other Members had previously said, the text of Article 9.1 of the DSU clearly provide d 
that: "a single panel should be established to examine [multiple ] complaints [related to the same 
matter ] whenever feasible ". There wa s, therefore, no legal basis not to establish a single panel under 
Article 9.1 of the DSU with respect to the panel requests tabled at the present meeting  under Agenda 
items 6 to 11 and 16 to 18.   
17.3.   The representative of the United  States  said that t he United States was disappointed that 
India had submitted a panel request in this dispute. This action was misdirected. It d id not address 
the damage to the international trading system posed by the creation and maintenance of non -
market economic conditions in the steel and aluminium  sectors. In fa ct, rather than support the 
international trading system by taking action to resolve the underlying concerns, India was 
undermining the trading system by asking the WTO to do what it was never intended to do. It was 
simply not the WTO 's role, nor its compe tence, to review a sovereign nation 's judgment of its 
essential security interests. The United States ha d explained that it consider ed the Section 232 
measures necessary for the protection of its essential security interests, and they were therefore 
justified under Article XXI of the GATT 1994. In particular, the United States  had explained that the 
President of the United States ha d determined that these measures were necessary to address the 
threatened impairment that imports of steel and aluminium  articles pose d to US national security. 
In the US reply to the consultation requests that had challeng ed the 232 measures, the United States 
had clearly stated  that: "[i]ssues of national security are political matters not susceptible to review 
or capable of res olution by WTO dispute settlement. "25 The United States  therefore d id not 
understand the purpose of this request for panel establishment  that sought  WTO findings that the 
United States ha d breached certain WTO provisions. The WTO c ould not, consistent with Article XXI, 
consider those claims or make the requested findings. The clear and unequivocal US position, for 
over 70 years, was that issues of national security were not matters appropriate for adjudication in 
the WTO dispute settleme nt system. No Member c ould be surprised by this view. For decades, the 
United States, as well as other Members, ha d consistently held the position that actions taken 
pursuant to Article XXI were not subject to review in GATT or WTO dispute settlement. Each  
sovereign ha d the power to decide, for itself, what actions were essential to its security, as was 
reflected in the text of GATT 1994 Article XXI.26 For example, in 1982, when certain European actions 
had been  before the GATT Council, the European Economic  Community and its member States had 
stated that Article XXI was a reflection of a Member 's "inherent rights".  They had stressed that "the 
exercise of these rights constituted a general exception, and required neither notification, 
justification, nor appro val, a procedure confirmed by thirty -five years of implementation of the 
General Agreement ... [since] every contracting party was – in the last resort – the judge of its 
exercise of these rights. "27 The United States in the same meeting had supported the E uropean 
position and stated that the "GATT, by its own terms, left it to each contracting party to judge what 
was necessary to protect its essential security interests in time of international crisis. "28 The position 
of the United States remain ed the same i n 2018 as it had been  in 1982, 1949, and indeed during 
the negotiation of the GATT itself. Because the United States has invoked Article XXI, there was no 
basis for a WTO panel to review the claims of breach raised by India. Nor was there any basis for a 
WTO panel to review the invocation of Article XXI by the United States. The United States  therefore 
did not see any reason for this matter to proceed further. The United States wishe d to be clear: if 
the WTO were to undertake to review an invocation of Arti cle XXI, this would undermine the 
                                                
25 See e.g., WT/DS548/13.  
26 GATT 1994 Article XXI(b) (“Nothing in this Agreement shall be construed … (b) to prevent any 
contracting party from taking any action which it considers necessary  for the protection of its essentia l security 
interests  … (italics added).  
27 GATT Council, Minutes of Meeting Held on 7 May 1982, C/M/157, p. 10.  
28 GATT Council, Minutes of Meeting Held on 7 May 1982, C/M/157, p. 10.  WT/DSB/M/421  
 
- 33 - 
 
  legitimacy of the WTO 's dispute settlement system and even the viability of the WTO as a whole. 
Infringing on a sovereign 's right to determine, for itself, what was in its own essential security 
interests would run exactly  contrary to the WTO reforms that were necessary in order for this 
organization to maintain any relevancy. For these reasons, the United States did not agree to the 
establishment of the panel requested by India at the present meeting . 
17.4.   The DSB took note  of the statements and agree d to revert to this matter.  
18  UNITED  STATES – CERT AIN MEASURES ON STEE L AND ALUMINIUM PROD UCTS  
A.  Request for the establishment of a panel by Switzerland ( WT/DS556/15 ) 
18.1.   The Chairperson  drew attention to the communication from Swit zerland contained in 
document WT/DS556/15, and invite d the representative of Switzerland to speak.  
18.2.   The representative of Switzerland  said that o n 9 July 2018, Switzerland had requested 
consultations with the United States concerning measures adopted to adj ust imports of steel and 
aluminium into the United States. The consultations had taken  place on 30 August 2018 in Geneva. 
Unfortunately, they had not ma de it possible to achieve a satisfactory solution. As a result, and like 
eight other Members, Switzerlan d was requesting  the establishment of a panel  to examine this 
matter,  with standard terms of reference. The measures impose d by the United States since 
23 March 2018 on certain steel and aluminium products ha d a direct impact on Swiss exports to the 
United  States. Switzerland was especially concerned by the fact that these trade restrictions, which 
were of an eminently economic nature, were being imposed unilaterally under the guise of national 
security. These measures were damaging to the multilateral trading system as a whole. The system's 
integrity and predictability were at stake. Moreover, Switzerland fear ed a spiral of restrictive 
measures, which c ould only harm global value chains – and, ultimately, all Members of t his 
Organization. The global problem of overcapacity in the steel and aluminium sectors was a real and 
serious one. Nonetheless, dialogue among the key stakeholders concerned was of vital importance 
in seeking solutions consistent with the spirit and the l etter of the WTO Agreements. Like the other 
co-complainants, Switzerland was convinced that the additional duties imposed by the United States 
on certain steel and aluminium products were not consistent with the obligations of the United States 
under the G ATT 1994 and the Agreement on Safeguards. In particular, Switzerland consider ed the 
measures to constitute safeguard measures, regardless of how they were characterized by the 
United States. For this reason, the measures should comply with the requirements  established in 
Article XIX of the GATT 1994 and the Agreement on Safeguards. In view of the commercial nature 
and scope of the measures concerned, Switzerland believe d that it was not only expedient but also 
important that the measures be examined by a pa nel, in accordance with the rules and procedures 
of the D SU. Given that a total of nine similar panel requests ha d been submitted with respect to the 
same matter, Switzerland consider ed that a single panel should be established in accordance with 
Article 9 .1 of the DSU. Switzerland note d that, in its previous statements, the United States had 
refused to accept that a single panel should be established to examine the complaints, and regret ted 
the US position.   
18.3.   The representative of the United  States  said tha t the United States was disappointed that 
Switzerland  had submitted a panel request in this dispute. This action was misdirected. It d id not 
address the damage to the international trading system posed by the creation and maintenance of 
non-market economic  conditions in the steel and aluminium  sectors. In fact, rather than support the 
international trading system by taking action to resolve the underlying concerns, Switzerland  was 
undermining the trading system by asking the WTO to do what it was never inte nded to do. It was 
simply not the WTO 's role, nor its competence, to review a sovereign nation 's judgment of its 
essential security interests. The United States ha d explained that it consider ed the Section 232 
measures necessary for the protection of its e ssential security interests, and they were therefore 
justified under Article XXI of the GATT 1994.  In particular, the United States  had explained that the 
President of the United States ha d determined that these measures were necessary to address the 
threatened impairment that imports of steel and aluminium  articles pose d to US national security. 
In the US reply to the consultation requests that had challeng ed the 232 measures, the United States 
had clearly stated  that: "[i]ssues of national security are political matters not susceptible to review 
or capable of resolution by WTO dispute settlement. "29 The United States  therefore d id not 
understand the purpose of this request for panel establishment  that sought WTO  findings tha t the 
                                                
29 See e.g., WT/DS548/13.  WT/DSB/M/421  
 
- 34 - 
 
  United States ha d breached certain WTO provisions. The WTO c ould not, consistent with Article XXI, 
consider those claims or make the requested findings. The clear and unequivocal US position, for 
over 70 years, was that issues of national security were not matters appropriate for adjudication in 
the WTO dispute settlement system. No Member c ould be surprised by this view. For decades, the 
United States, as well as other Members, ha d consistently held the position that actions taken 
pursuant to Article  XXI were not subject to review in GATT or WTO dispute settlement. Each 
sovereign ha d the power to decide, for itself, what actions were essential to its security, as was 
reflected in the text of GATT 1994 Article XXI.30 As the United States had noted previ ously, in 1982, 
when certain European actions had been  before the GATT Council, the European Economic 
Community and its member States had stated that Article XXI was a reflection of a Member 's 
"inherent rights ". They had stressed that "the exercise of thes e rights constituted a general 
exception, and required neither notification, justification, nor approval, a procedure confirmed by 
thirty -five years of implementation of the General Agreement ... [since] every contracting party was 
– in the last resort – the judge of its exercise of these rights. "31 That European statement had been  
correct in 1982, and the United States in the same meeting had supported the European position.32 
So, too, had New Zealand, Singapore, Norway, Canada, the United Kingdom, and Australia.33 The 
position of the United States remain ed the same in 2018 as it had been  in 1982, 1949, and indeed 
during the negotiation of the GATT itself. Because the United States has invoked Article XXI, there 
was no basis for a WTO panel to review the claims of breach raised by Switzerland . Nor was there 
any basis for a WTO panel to review the invocation of Article XXI by the United States. The United 
States therefore did not see any reason for this matter to proceed further. The United States wished 
to be clear: if the WTO were to undertake to review an invocation of Article XXI, this would undermine 
the legitimacy of the WTO's dispute settlement system and even the viability of the WTO as a whole. 
Infringing on a sovereign's right to determine, for its elf, what was in its own essential security 
interests would run exactly contrary to the WTO reforms that were necessary in order for this 
organization to maintain any relevancy. For these reasons, the United States did not agree to the 
establishment of the  panel requested by Switzerland  at the present meeting.  
18.4.   The DSB took note of the statements and agree d to revert to this matter.  
19  ADOPTION OF THE 2018  DRAFT ANNUAL REPORT  OF THE D ISPUTE SETTLEMENT BODY 
(WT/DSB/W/630 ) 
19.1.   The Chairperson  said that, u nder this Agenda item, she was  submitting for adoption the draft 
text of the 2018 Annual Report of the DSB contained in document WT/DSB/W/630. She did  so 
pursuant to the Procedures for an Annual Overview of WTO Activities and for Reporting under the 
WTO, c ontained in document WT/L/105.  This Report cover ed the work of the DSB since the previous 
Annual Report contained in document WT/DSB/74. In other words, it cover ed meetings of the DSB 
from 22  November  2017 through 29  October 2018. The Report contain ed a factual summary of DSB 
meetings during the period under review. As in the past, following the adoption of the Annual Report 
at the present  meeting, the Secretariat w ould update the Report under its own responsibility in order 
to include the actions take n by the DSB at the present  meeting. Subsequently, the updated Annual 
Report w ould be submitted for consideration by the General Council at its meeting scheduled for 
12 December 2018. Consequently, the Chairperson propose d that the DSB adopt the draft Annu al 
Report of the DSB contained in document WT/DSB/W/630 on the understanding that it w ould be 
further updated by the Secretariat.  
19.2.   The DSB took note  of the statement and agreed  to adopt the draft Annual Report contained 
in document WT/DSB/W/630 on the under standing that it would be further updated by the 
Secretariat.34 
                                                
30 GATT 1994 Article XXI(b) (“Nothing in this Agreement shall be construed … (b) to prevent any 
contracting party from taking any action which it considers necessary  for the protection of its essential security 
interests  … (italics added).  
31 GATT Council, Mi nutes of Meeting Held on 7 May 1982, C/M/157, p. 10.  
32 GATT Council, Minutes of Meeting Held on 7 May 1982, C/M/157, p. 10 (the United States stated that 
the “GATT, by its own terms, left it to each contracting party to judge what was necessary to protect its essential 
security interests in time of international crisis").  
33 GATT Council, Minutes of Meeting Held on 7 May 1982, C/M/157, pp. 7 -11. 
34 Subsequently, the Annual Report was circulated in document WT/DSB/76.  WT/DSB/M/421  
 
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  20  PROPOSED NOMINATION FOR THE INDICATIVE L IST OF GOVERNMENTAL AND 
NON-GOVERNMENTAL PAN ELISTS  (WT/DSB/W/633 ) 
20.1.   The Chairperson  drew attention to document WT/DSB/W/633, which contain ed one additional  
name proposed by Egypt for inclusion on the Indicative List of Governmental and Non -Governmental 
Panelists, in accordance with Article  8.4 of the DSU. She propose d that the DSB approve the name 
contained in document WT/DSB/W/633.  
20.2.   The DSB so agree d. 
21  APPELLATE BODY APPOI NTMENTS: PROPOSAL BY  ARGENTINA; AUSTRALI A; THE 
PLURINATIONAL STATE OF BOLIVIA; BRAZIL; CANADA; CHILE; CHINA ; COLOMBIA; 
COSTA  RICA; DOMINICA N REPUBLIC; ECUADOR;  EGYPT; EL  SALVADOR;  THE 
EUROPEAN  UNION; GUAT EMALA; HONDURAS; HON G KONG, CHIN A; ICELAND; INDIA; 
INDONESIA; ISRAEL; K AZAKHSTAN; KOREA;  LIECHTENSTEIN; MEXICO; NEW  ZEALAND;  
NICARAGUA; NORWAY; P AKISTAN; PANAMA; PAR AGUAY; PERU; THE 
RUSSIAN  FEDERATION; SINGAPORE; SWITZERLA ND; THE SEPARATE CUS TOMS 
TERRITORY OF TAIWAN,  PENGHU, KINMEN AND MATSU;  THE FORMER YUGOSLAV  
REPUBLIC OF MACEDONI A; TURKEY; UKRAINE; UR UGUAY; THE BOLIVARIA N REPUBLIC OF 
VENEZUELA AND VIET  NAM (WT/DSB/W/609/REV .6) 
21.1.   The Chairperson  said that this item was on the Agenda of the present meeting at the request 
of Mexico, on beha lf of several delegations. She  then drew attention to the proposal contained in 
document WT/DSB/W/609/Rev. 6 and then invited the representative of Mexico to speak.  
21.2.   The representative of Mexico , speaking on behalf of the delegations referred to in document 
WT/DSB/W/609/Rev.6 , said that the delegations in question  had agreed to submit the joint proposal 
dated 8 November 2018 to la unch the selection processes to fill  the vacancies in the Appellate Body.  
Mexico,  on behalf of these 70 Members plus Cuba who ha d expressed its intention to co -sponsor this 
proposal, wished to make a joint statement  at the present meeting.  The considerable number of 
Members that had submitt ed the joint proposal shared the concern about  the current situation in 
the Appellate Body , which  was seriously affecting its functioning  and the overall dispute settlement 
system , against the best interest of its Members.  WTO Members ha d a responsibility to safeguard 
and preserve the Appellate Body , the dispute settlement system and multilateral  trading systems. 
It was therefore Members'  obligation  to launch  the selection processes to appoint new Appel late 
Body members.  As stated in document WT/DSB/W/609/Rev. 6, this proposal sought  to: (i) start four 
selection processes: one process to replace M r. Ricardo Ramírez -Hernández, whose second term had 
expired on 30 June 2017; a second process to fill the vacancy that had occurred with the resignation 
of Mr. Hyun Chong Kim with effect from 1 August  2017; a third process to replace Mr. Peter Van den 
Bossche, whose second term had expired on 11 December, 2017; and a fourth process to replace 
Mr. Shree Baboo Chekitan Servansing, whose four -year term of office had expire d on 
30 September  2018; (ii) to establish a Selection Committee; (iii) to set a deadline of 30 days for the 
submission of candidacies; and (iv) to request that the Selection Committee issue its 
recommendation s within 60  days after the deadline for nominations of candidates . The proponents 
were flexible in the determination of the deadlines for  the selection processes, but Members  should 
consider the urgency of the situation. Mexico  continue d to urge all Members to support this proposal 
in the interest of the multilateral trad ing and the dispute settlement systems.   
21.3.   The representative of Mexico  said that, at this point, Mexico wished to make a separate 
statement  on behalf of Mexico only .  As ha d been stated on several occasions, the Appellate Body 
was a key part of the dispute settlement system, which was why it should be a priority for all 
Membe rs to ensure its proper functioning. To do so, it was fundamental for the Appellate Body to 
have a full contingent. According to the DSU, the dispute settlement system was "a central element 
in providing security and predictability to the multilateral trad ing system", and it ha d been of benefit 
to all Members. However, despite the many attempts made by various delegations, there currently 
were only three members in the Appellate Body instead  of the seven members that the Appellate 
Body should comprise. Mexi co still ha d grave concerns, which were becoming increasingly pressing. 
Mexico called, once again , for Members to address, in a responsible manner, the current situation in 
which, for over a year and a half, Members had  been unable to launch the AB selection process es. 
By failing to do this, Members we re disregarding the obligation, set out  in Article 17.2 of the DSU, 
to fill such vacancies as they ar ose. This situation was unacceptable and w ould have a serious 
systemic impact on th is Organization . At present, there were 11 ongoing appeals and, if the situation WT/DSB/M/421  
 
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  did not change, there w ould be a major delay in the circulation  of reports. Members had to  stop the 
practice of raising concerns without proposing solutions , and bring an end to this deadloc k for which 
there was no legal basis, especially given the current crisis faced by the multilateral dispute 
settlement system. Mexico wished to reiterate its call for Members to ensure that the AB selection 
processes were initiated as a matter of urgency, and for the Member that ha d raised concerns to 
take into consideration the willingness demonstrated by the other Members to engage in discussions 
and seek a solution to these concerns. Nevertheless, Mexico  wished to emphasize that the 
achievement of such a  solution could  not prevent compliance with the legal obligations of WTO 
Members . There should  be no link between the AB selection process es and any systemic  concern s. 
21.4.   The representative of the United States  said that the United States thank ed the Chairper son 
for the continued work on these issues. As the United States had explained in prior DSB meetings, 
the United States was not in  a position  to support the proposed decision. The systemic concerns that 
the United States had identified remained unaddressed.  As the United States had explained at recent 
DSB meetings, for more than 15 years and across multiple US Administrations, the United States  
had been raising serious concerns with the Appellate Body's disregard for the rules set by WTO 
Members. Through persistent overreaching, the WTO Appellate Body had been adding obligations 
that were never agreed by the United States and other WTO Members.  The 2018 US Trade Policy 
Agenda had outlined several longstanding US concerns.35 The United States ha d raised repeated 
concerns that appellate reports ha d gone far beyond the text setting out WTO rules in varied areas, 
such as subsidies, anti -dumping duties , anti-subsidy duties, standards and technical barriers to trade 
and safeguards,  restricting the ability of the United States to regulate in the public interest or protect 
US workers and businesses against unfair trading practices. And as the United States  had explained 
at recent meetings of the DSB, the Appellate Body had issued advisory opinions on issues not 
necessary to resolve a dispute and reviewed panel fact -finding despite appeals being limited to legal 
issues. Furthermore, the Appellate Body had as serted that panels must follow its reports although 
Members had not agreed to a system of precedent in the WTO, and continuously disregarded the 
90-day mandatory deadline for appeals – all contrary to the WTO's agreed dispute settlement rules. 
And for more  than a year, the United States had been calling for WTO Members to correct the 
situation where the Appellate Body acted as if it had the power to permit ex -Appellate Body members 
to continue to decide appeals even after their term of office – as set by th e WTO Members – had 
expired. This so -called "Rule 15" was, on its face, another example of the Appellate Body's disregard 
for the WTO's rules. The concerns of the United States had not been addressed. When the Appellate 
Body abused the authority it had bee n given within the dispute settlement system, it undermined 
the legitimacy of the system and damaged the interests of all WTO Members who cared about having 
the agreements respected as they had been negotiated and agreed. The United States would 
continue t o insist that WTO rules be followed by the WTO dispute settlement system, and would 
continue its efforts and its discussions with Members and with the Chairperson to seek a solution on 
these important issues.  
21.5.   The representative of  Brazil  said that , for a l ong period of time,  Members ha d not succeed ed 
in achiev ing progress in what wa s arguably the most pressing current issue at the WTO. Only at the 
present  meeting, 13 new panels had been established. On the one hand,  the majority of Members 
called  for the preservation of the rules -based WTO dispute settlement system and a f ully operational 
Appellate Body, and  the proposal reintroduced again today by 71 Members was evidence of that. On 
the other hand, however, one Member claim ed that its "systemic c oncerns remain unaddressed ", as 
if this claim , in and of itself , could  provide a legal foundation for its arguments. In fact, those 
concerns remain ed anything but unaddressed, as the whole Organization was publicly, even 
frantically, engaged in a  discussio n of those concerns . And if Members had not go ne from addressing 
such concerns to making progress , it wa s because one element of the puzzle was missing: the 
palpable, active  and good faith engagement of that same Member. Addressing these concerns  was 
a collective duty for all Members and not something that one Member could delegate to other  
Member s. The DSB, however, ha d to act according to the rules set out  in the DSU. And absent solid 
legal reasons by that Member to justify its position, it was u nlikely that  the DSB could justify its own 
inaction in respect of  the prescriptions in the DSU . Notwithstanding Brazil 's willingness to discuss 
systemic concerns, Brazil w ished  to reiterate that these concerns  did not qualify as legal justification 
for blo cking the AB selection process es and the appointment of Appellate Body members. Above all, 
they d id not qualify as legal justification s for exempting the DSB from its collective responsibility to 
comply with the mandatory rules of the DSU. Members c ould easily grasp the implications of that 
line of argument for the work of this Organization. Brazil wished to focus on the legal framework 
                                                
35 Office of the US Trade Representative, 2018 President's Trade Policy Agenda, at pp. 22 -28. WT/DSB/M/421  
 
- 37 - 
 
  relevant to this discussion and on the mandatory nature of  the very first provision of the section of 
the DSU dedicated to appellate review.  Article 17  of the DSU  was not entitled "appellate review ", as 
it could have been . Article 17 bore the title  "Standing Appellate Body ". Article 17.1  of the DSU  began  
with the  following sentence:  "[a] standing Appellate Body shall be established by the DSB ". Thus, a 
standing, i.e., a permanent Appellate Body ha d been firmly established in Article 17.1 of the DSU by 
consensus of all Members as a result of the Marrakesh Agreement , to which  document WTO/DSB/1, 
of June 1995 , subsequently referred to . A close reading of Article 17.1 of the DSU suggested  similarly 
that only by consensus of all Members could the Appellate Body be "disestablished " or transformed 
into something else. This could not be achieved through unilateral action. There was also  no doubt 
that the Appellate Body wa s being disestablished, as it was being deprived of its essential feature: 
its members. All arguments or concerns were limited by this mandatory provisio n. Other provisions 
in Article 17 of the DSU were also very clear. They d id not require that the DSB take a decision on 
whether it w ould appoint persons to serve on the Appellate Body. Fundamentally, t he provisions of 
Article 17 of the DSU require d that th e DSB take a decision on who to appoint  to the Appellate Body . 
The DSB wa s not required to take action in order to launch a selection process or to set a selection 
committee . These  were routine procedures to be followed by the DSB Chair. There was no legal  basis 
in the DSU for blocking a selection process that aim ed to provide the DSB with a recommendation 
that w ould help it to fulfil its duties to appoint persons to serve on the Appellate Body. Arguably , the 
only DSU provision regarding the composition of the Appellate Body that call ed for a decision of the 
DSB was Article 17.2  of the DSU , which read: "[t]he DSB shall appoint persons to serve on the 
Appellate Body for a four -year term ". Although not using  the term "decision ", as foreseen in Article 
2.4 of the DSU , it seem ed the DSB ha d to decide by consensus on who to appoint as Appellate Body 
member. Article 17.3  of the DSU  set mandatory guidelines for the decision -making process regarding  
the appointment  of Appellate Body members: "[t]he Appellate Body shall comprise persons of 
recognized authority, with demonstrated expertise in law, international trade and the subject matter 
of the covered agreements generally. They shall be unaffiliated with any govern ment. The Appellate 
Body membership shall be broadly representative of membership in the WTO ". It was t hus clear that 
the requirements that would legally justify an objection to the appointment of an Appellate Body 
member relate d solely to the qualificatio ns of a candidate. Therefore, unaddressed systemic 
concerns could not qualify as legal justification for prevent ing consensus  even in respect of the 
decision to appoint individuals as Appellate Body members. In view of these remarks , it was Brazil 's 
understand ing that in no case should the actions of one Member prevent all Members from complying 
with three specific mandatory commands set out in Article 17 of the DSU.  The verb "shall" had 
indeed been chosen by the drafters to prescribe that : (i) "[a] standing Appellate Body shall be 
established by the DSB " (Article 17.1 of the DSU) ; (ii) "[the Appellate Body ] shall be composed of 
seven persons " (also Article 17.1 of the DSU) ; and (iii) "[v]acancies shall be filled as they arise " 
(Article  17.2 of the DS U). Clearly , none of th ese three mandatory provisions of the DSU regarding 
the establishment and composition of the Appellate Body provide d for the DSB to take a decision. 
On the contrary, the decision to create  a second  level of jurisdiction , in the form of an Appellate 
Body composed of seven persons without any  vacancies allowed , had already been taken by positive 
consensus with the signature of  the Marrakesh Agreement. Those three provisions within Articles 
17.1 and 17.2 of the DSU impose d inescapable obligations on the DSB itself . This mean t that not 
even th e DSB , through positive consensus, could dismantle or "disestablish " the Appellate Body. The 
DSB was not entitled to decide on the existence of the Appellate Body, but only to guarantee t hat it 
function ed uninterruptedly in accordance with  DSU provisions. The Appellate Body ha d now been 
reduced to three members, a condition not envisaged in and not allowed by the text of the DSU. As 
a result , the Appellate Body membership  was already in br each of the expected geographical 
representativeness and variety of legal traditions . In addition, due to  this highly precarious situation, 
the Appellate Body  was unable to perform its duties in the way foreseen by the DSU, and its work 
had to incur constant delays , which  affect ed all Members. The breadth and scope of the 
consequences caused by the current deadlock c ould not be underestimated. The current deadlock 
was causing nullification and impairment of benefits under the WTO Agreement t o all Members that 
wished to make use of the WTO dispute settlement system. As Brazil had already mentioned, Brazil 
had counted a pproximately  50 ongoing  disputes, at consultation and panel phases, that might  not 
benefit from an appeal or might not even be adopted absent agreement between the disputing 
parties. Members affected by this abnormal state of affairs include d Brazil, the EU, China, Canada, 
Japan, India, Vietnam, Korea, Mexico, Turkey, Ukraine, Switzerland, the United Arab Emirates and 
others, in addition to  the United States. It was quite striking that one Member was causing all this 
disruption  to the legal rights of so many other Members  without a solid  legal justification. Brazil 
asked whether  these Members were to be deprived of their rights wit hout a solution  within sight . 
Without a well-functioned  dispute settlement system, there c ould be no rules -based multilateral 
trading system. Brazil asked whether Members could consider negotiating new rules for a reformed WT/DSB/M/421  
 
- 38 - 
 
  WTO when they did not  know how existing  rules w ould be interpreted and if these rules would be 
enforced equally for all.  Brazil,  therefore , wished  to urge the DSB to follow the text of the DSU and 
to launch the process of establish ing a selection committee and appoint ing new members of  the 
Appellate Body. Brazil invite d all Members, including the United States, to share their collective 
responsibility to comply with the obligations that Members had  voluntarily undertaken pursuant to  
Article 17 of the DSU.  
21.6.   For many years now , Brazil ha d been insisting on some basic principles that should guide the 
work of the WTO dispute settlement system and Appellate Body: i ndependence, professional 
competence, efficiency, high -quality reports. The WTO dispute settlement system  had deliver ed, 
year after  year, reasoned decisions that had helped Members  to either settle their disputes or justify 
their compensatory or retaliatory measures. Future developments might  carry unavoidable and 
unforeseen consequences for all Members. Brazil ha d deployed significant efforts with respect to this 
matter. These efforts had seemingly come to nothing or nearly nothing. Brazil referred to Mr.  Dag 
Hammarskjöld  who said that all institutions were based on a working hypothesis. The working 
hypothesis that sustain ed the DSU and the Appellate Body was the common perception that Members 
were better served by a neutral, independent dispute settlement body that would settle unavoidable 
disputes based on rules agreed by all Members , than by being left to fend fo r themselves in a 
Hobbesian environment. This working hypothesis was now being challenged. Instead of complaining 
about the current situation, Members should try to identify as many  areas  of common ground among 
Members as possible and to broaden th ese areas until an acceptable solution emerge d. Brazil  said 
that Members could get either very cynical or very serious.  
21.7.   The representative of Canada  said that Canada deeply regretted that the DSB had been unable 
to fulfil its legal obligation under Article 17. 2 of the DSU to appoint Appellate Body members as 
vacancies arose.  Canada agreed that it was time to start a process or, if necessary, several processes 
to select new Appellate Body members for the four current vacancies, taking into account the recent 
departure of Mr. Servansing. Canada noted that the serious effect of these vacancies on the ability 
of the Appellate Body to function could not be overstated. Canada was pleased to join the proposal 
contained in document WT/DSB/W/609/Rev. 6 and urged the DSB t o adopt it without further delay. 
The failure to launch the AB selection processes would only prolong the delays that necessitated 
recourse to Rule 15 of the Working Procedures for Appellate Review, about which the United States 
had expressed concerns. Lik e other Members, Canada was disappointed that the United States had 
linked the start of the AB selection processes to the resolution of certain procedural concerns it had 
shared with the Membership. Canada invited the United States to engage in discussions  with 
interested Members with a view to expeditiously developing a solution to the concerns that the 
United States had raised.  Canada remained committed to working with other interested Members – 
including the United States – with a view to finding a way t o address those concerns in order to 
allow the AB selection processes to start and be completed as soon as possible.  
21.8.   The representative of  Costa  Rica said that Costa Rica, o n behalf of the GRULAC, reiterate d its 
concern s about the blockage of  the AB selection processes. This situation ha d an im pact on the 
functioning of most important body of  the WTO and resulted in the  lack of compliance with WTO  
rules. Costa Rica  was aware of the concerns that relate d to the functioning  of the A ppellate Body 
and to  the decision -making process  to justify the inability to launch  the AB selection processes. 
Nevertheless, seeking a solution to these concerns should  not be an obstacle to the functioning of 
the WTO dispute settlement system. Article 17 of the DSU , along  with Article 2  of the DSU , did not 
require  a positive consensus to launch the AB selection processes. Costa Rica  wished to ask, once 
again , that the Chairperson of the DSB continu e her efforts aimed at finding a solution to the current 
impasse .   
21.9.   The representative of  the Russian  Federation  said that Russia was  deeply concerned with the 
current situation in the Appellate Body which  affect ed the dispute settlement mechanism and the 
functioning of the WTO. The U nited States still ha d provided no legal grounds to justify prolonging 
the impasse over the launch of the AB selection process es. Russia was open to constructive 
discuss ions aimed at finding solutions to this matter  with interested Members . The U nited States, 
however, continued to  keep other Members in the dark. The United States  had voiced various 
concerns, but ha d not expressed  views on how to proceed with these issues. A logical conclusion 
would be that the problems alleged  by the U nited States did not exist. The United States liked to  
present itself as the guardian of WTO rules. However, the United States  seem ed to be acting in a 
manner that nullif ied and impair ed Members' benefits under the WTO Agreement. The United States 
forced the establishment of nine different panels regarding the same matter at the present meeting. WT/DSB/M/421  
 
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  Although, it would have been logical to agree to establish a  single panel , which was feasible . In doing 
so, the United States did not contribute to  an effective management of the workload of the Appellate 
Body and also of the WTO dispute settlement system  more general ly. 
21.10.   The representative of  Korea  said that Korea support ed the statement made by Mexico on  
behalf of the proponents of the  proposal  contained in document WT/DSB/W/609/Rev.6 . Korea  
wished to refer to its statement s made at previous DSB meetings  on this matter.  
21.11.   The representative of  Switzerland  said that Switzerland wished to refer to its statements 
made on this matter at previous DSB meetings. Switzerland regret ted that the DSB continue d to be 
unable to l aunch the AB selection processes. Once again , Switzerland  urged all Members to engage 
constructively in order to find a way forward and to overcome this impasse without further delay.   
21.12.   The representative of  Norway  said that Norway regret ted once again  that the United States 
still c ould not join the consensus and support the proposal contained in document 
WT/DSB/W/609/Rev.6  to launch the AB selection process es. Norway w ished  to refer to its 
statements made at previous  DSB meetings regarding  this Agenda item, and to reiterate its 
willingness to engage in discussions in order to find solutions to the procedural issues raised by the 
United States. However, Norway  still could not agree to these issues being linked to the AB selection 
process es. It was now high time for Members to  surpass this deadlock.   
21.13.   The representative of  Singapore  said that Singapore wished to refer to its statements made 
at previous DSB meetings, and to reiterate its serious systemic concerns o ver the failure to launch 
the AB sel ection processes . It was an opportune moment to recall that th e joint proposal contained 
in document WT/DSB/W/609/Rev.6  and put forward by Mexico had been  first introduced at the 
22 November 2017 DSB meeting. Exa ctly one year later, this joint proposal was now at its sixth 
version with 70 co -sponsors. However, the impasse ha d remained. With the numerous panels 
established at the present meeting , the workload of the WTO dispute settlement system continue d 
to increase even as the number of AB members decrease d by attrition. Given the strain that the AB 
was facing, Singapore  called on Members to bear this in mind when deciding to appeal . Systemic 
issues which ha d been raised c ould be discussed in a separate proces s. In this regard, Singapore 
stood  ready to engage constructively and collaboratively with other Members as well as with the 
Chairperson to help to resolve this impasse.  
21.14.   The representative of  Chinese  Taipei  said that Chinese Taipei wished to  refer to its 
statements made at previous DSB meetings. Chinese Taipei  support ed the launch  of the AB selection 
processes as soon as possible. Chinese Taipei  remain ed committed to working with other interested 
Members in order to find a way to address the relevant concerns.   
21.15.   The representative of  Hong Kong, China  said that Hong Kong, China wished to refer to its 
statements made at previous DSB meetings on this matter. Hong Kong, China  wished to reiterate 
its deep concerns with the prolonged impasse over the AB selection processes and urge d for the 
launch  of the AB selection processes without delay. Hong Kong, China  stood ready to engage in 
proactive discussions on resolving the deadlock and the systemic issues identified.  
21.16.   The representative of  New Zealand  said that New Zealand wished to reiterate its support for 
the co -sponsored proposal contained in document WT/DSB/W/609/Rev.6  and emphasi zed the 
importance of commencing the AB selection process es as soon as possible. New Zealand wished to  
refer to its statements made at previous DSB meet ings on the importance of the multilateral dispute 
settlement system and on finding solutions to issues among Members.   
21.17.   The representative of  China  said that China w ished to echo the statement made by Mexico 
on behalf of 70 Members. China was disappointed that the efforts of these Members to initiate the 
AB selection processes were, once again , frustrated by the  self-interested,  illegitimate and persistent 
US blockage. The Appellate Body was the irreplaceable component of the WTO dispute settlement 
mechanism. It greatly contribute d to the effective resolution of disputes and to the stability and 
predictability of the rule s-based multilateral trading system. Ensuring the integrity and functio ning 
of the Appellate Body therefore serve d the common interests of all Members. Article 17.2 of the DSU 
clearly state d that:  "[v]acancies shall be filled as they arise ". The prompt initiation of the AB selection 
processes  was a responsibility and an obligation of all Members . China recall ed that the U nited States 
was very keen to distinguish between the legal effects of the respective words "shall" and "should " WT/DSB/M/421  
 
- 40 - 
 
  and to  point to  the mandatory nature of the former. China wished to  encourage the U nited States 
to make use of  the same treaty interpretation methodology when it c ame to Article 17.2  of the DSU . 
The word "shall" was more than adequate to suggest the automatic nature of the AB selection 
process es. While the appointment of any particular Appellate Bod y member d id require positive 
consensus among Members, such consensus was not necessary for the launch of the AB selection 
process es. China believe d that when Members ha d different views on any specific concern, discussion 
and negotiation was the only way to move forward. Nevertheless, it was unjustified for any Member 
to attach its own precondition s to the initiation of the AB selection process es at the expense of the 
entire  Membership. The Appellate Body was already in crisis. As all Members knew, there were only 
three A ppellate Body members  left.  If nothing change d, even the status quo c ould not be sustained 
after the end of 2019. There was no doubt that the standstill in the AB selection process es had 
already jeopardized the appellate mechanism and the  functioning of the multilateral trading system. 
Given that the aftermath of such crisis would be borne by all Member s, Members  needed to launch 
the AB selection process es as soon as possible so that the well -functioning of the Appellate Body 
could be rest ored. It was regrettable  that the U nited States had persistently refuse d to engage in 
meaningful discussion s after having raised multiple concerns with respect to the functioning of the 
Appellate Body. Again, China  urged the U nited States to faithfully car ry out  its commitments under 
the WTO A greements and to interpret all WTO rules in a consistent manner.   
21.18.   The representative of  Australia  said that Australia wished to refer to its statements made at 
previous DSB meetings on this matter . Australia wished to  reiterate its serious concerns regarding 
the DSB 's inability to launch the AB selection  process es. Australia  remain ed committed to resolving 
this impasse as a priority, and was ready and willing to work with others on pragmatic solutions.   
21.19.   The representat ive of  Thailand  said that  Thailand wished to refer to its statements made at 
previous DSB meetings  on this matter . Thailand  appreciate d the continued efforts under this Agenda 
item of Mexico and all co -sponsors of the proposal contained in document WT/DSB/ W/609/Rev.6  in 
an attempt to fill the vacancies in the Appellate Body. Thailand wished to reiterate its grave systemic 
concern over the current impasse to ensure the proper functioning of the WTO's rules -based system. 
Thailand  support ed the launching of th e AB selection processes as soon as possible. Thailand 
remain ed committed to working constructively with all Members to resolve this matter as a priority.  
21.20.   The representative of  India said that India wished to refer to its statements made at previous 
DSB meetings on this matter . India wished to reiterate its serious concerns about the current 
impasse in filling vacancies in the Appellate Body and its effect on the credibility of the WTO. India 
stood ready to constructively engage with other WTO Members  in order to find an expeditious 
resolution to the impasse.   
21.21.   The representative of  Turkey  said that Turkey  wished  to refer to its statements made at  
previous DSB meetings  on this matter . Turkey wished to  reiterate its deep concern s with the current 
impasse . As a co -sponsor of the proposal contained in document WT/DSB/W/609/Rev.6  and put 
forward by Mexico, Turkey  urged the concerned Member to lift the current block age and to initiate 
the AB selection processes  in accordance with Article 17.2 of the DSU.  Considering the urgency of 
the matter, any proposal to address concerns regarding  the Appellate Body should be discussed 
separately, without a link to the launch of the AB selection processes,  and should not prevent the 
Appellate Body from perform ing its functions fully. Turkey st ood ready to engage constructively and 
to help overcome this deadlock.   
21.22.   The representative of  Japan said that Japan support ed the proposal  contained in document 
WT/DSB/W/609/Rev.6 . Japan wished to refer to its statements  made  at previous  DSB meetings .  
21.23.   The representative of  Ukraine  said that Ukraine wished to thank Mexico and to reiterate its 
support for the co -sponsored proposal  contained in document WT/DSB/W/609/Rev.6 . Ukraine 
emphasize d the importance of the Appellate Body in the dispute settlement mechanism and 
consider ed that it was crucial to discuss issues related to Appellate Body appointments. Ukraine 
called for a constructive dialogue and cooperation between Members . It was essential to find a 
mutually acceptable solu tion to deal with the crisis, which affected  the functioning of the WTO dispute 
settlement mechanism, in particular by launching the AB selection processes  as soon as possible.   
21.24.   The representative of  Mexico , speaking on beha lf of the 71 co -sponsors of the  proposal  
contained in document WT/DSB/W/609/Rev.6 , said that Mexico regret ted that, once again WT/DSB/M/421  
 
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  (18 times) , Members had still not been able to  agree to  start the AB selection processes and 
therefore they continued  to fail  to fulfil their duties as WTO Memb ers. The fact that Members might  
have concerns about certain aspects of the functioning of the Appellate Body c ould not serve as a 
pretext to impair and disrupt the work of th e Appellate Body . There was no legal justification to block 
the AB selection proc esses.  As Article 17.2 of the DSU clearly state d: "[v]acancies shall be filled as 
they arise ". By failing to act , Members  would maintain the current situation , which was seriously 
affecting the functioning  of the Appellate Body and was against the best interest s of all Members.  
21.25.   The representative of  the European  Union  said that t he European Union wished to refer to 
its statements made on this issue at previous DSB meetings, starting in February 2017. With each 
passing month, the gravity and urgency of th e situation increase d. The EU said that Members ha d a 
shared responsibility to resolve this issue as soon as possible. The EU  wished to thank all Members 
who co-sponsored the proposal  contained in document WT/DSB/W/609/Rev.6 . The EU  invite d all 
other M embe rs to endorse this proposal  so that AB appointments c ould be made as soon as possible.   
21.26.   The Chairperson  thanked all delegations for their statements. She said that as all Members 
were well aware , this matter required political engagement on the part of all Members. She reiterated 
that her door was open to any delegation wishing to share ideas or views on this matter.  
21.27.   The DSB took note of the statements.  
22  RIGHT OF A MEMBER TO  DECIDE THE COMPOSIT ION OF ITS DELEGATION F OR 
CONSULTATIONS: STATE MENT BY CHINA  
22.1.   The Chairperson  said that t his item was on the Agenda of the present  meeting at the request 
of China , and invite d the representative of China to speak.  
22.2.   The representative of China  said that China wished  to draw attention to a recent practice of 
the U nited States during consultations in WTO dispute settlement proceedings. In this regard, China 
noted that d uring consultations in the following disputes: " US – Certain Measures on Steel and 
Aluminium Pr oducts " (DS544) ; "US – Safeguard Measure on Imports of CSPV Products " (DS562); 
and "US – Certain Measures Related to Renewable Energy " (DS563) , the U nited States had 
persistently forced China to excuse its "legal counsel "36 from delegations on the grounds that 
consultations were inter -governmental and confidential. The egregious behavio ur of the 
United  States wa s of systemic importance to the entire  Membership. China note d at the outset  that 
it respect ed and uph eld the confid entiality requirement under Article 4.6 of the DSU . Its remarks 
under this Agenda item would  not disclose any of the substantive issues discussed in the relevant 
consultations with the United States . The practice of engaging legal counsel to assist with 
participation in WTO dispute settlement proceedings wa s long -stand ing and widespread, and 
facilitated  the efficient resolution of disputes. The US opposition to the presence of legal counsel in 
consultations was, therefore , an issue of systemic importance. As China w ould elaborate further in 
its statement, the US objections to this practice were legally and practically unfounded for three 
reasons: ( i) the right of Members to invite legal counsel to participate at all stages of dispute 
settlement proceedings was enshrined in WTO law and customary international law; ( ii) the 
governmental character of a Member's delegation was not impact ed by the presence of legal counsel, 
nor did the presence of legal counsel compromise  confidentiality ; and ( iii) preventing Mem bers from 
relying on legal counsel during consultations unfairly disadvantage d developing country Members 
that m ight require assistance in order to present their case s effectively.   
22.3.   In China's view, the right of a Member to determine its representation at all stages of dispute 
settlement proceedings was well-established under WTO law and customary international law. The 
right of a Member to select its own counsel and determine the extent to which that counsel 
participate d in dispute settlement proceedings was rooted in WTO law and customary international 
law. The right of a Member to invite counsel of its own choosing to participate in all stages of dispute 
settlement proceedings derive d from the fundamental princip le of due process. Due process wa s the 
cornerstone of the dispute settlement mechanism. Due process require d that Members be able to 
participate effectively in dispute settlement proceedings. For some Members such as China, the legal 
expertise of legal counsel could  be necessary to ensure that the  Members ' claims were fully 
presented and/or its rights and interests were effectively defended. Due process thus require d that 
                                                
36 The expression "legal counsel" referred to legal experts from a law firm retained by a Member to provide 
legal services during WTO dispute settlement proceedings.  WT/DSB/M/421  
 
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  Members could  choose to have  legal counsel participate during all stages of dispute settlement 
proceedings. The Appellate Body h ad consistently recognized that due process rights includ ed the 
right to be represented by legal counsel in dispute settlement proceedings. In the "EC – Bananas 
III" dispute (DS27) , the Appellate Body had confirmed that the Government of Saint Lucia had th e 
right to invite two legal counsel to the Appellate Body hearing because it had considered 
representation by counsel to be particularly important for developing country Members in order to 
"participate fully in dispute settlement proceedings".37 Similarly,  in the "Korea – Alcoholic  Beverages" 
dispute (DS75) , the Panel allowed the prese nce of legal counsel in panel proceedings on behalf of 
Korea because in its view, the participation of legal counsel wa s necessary to ensure that the 
responding Member "has every opportunity to fully defend its interests in a case".38 China believe d 
that these findings appl ied equally to the consultation stage of dispute settlement proceedings. 
Article 3.7 of the DSU provide d that: "[t]he aim of the dispute settlement mechanis m is to secure a 
positive solution to a dispute". Engaging in consultations was an important first step in achieving 
this objective . It allow ed disputing parties to exchange information, assess the strength s and 
weakness es of their cases, delimit the scope  of the dispute, and sometimes reach a mutually agreed 
solution.39 Given the importance of the consultation process to securing a positive solution to a 
dispute, the right of a Member to seek assistance from legal counsel during consultations could  not 
be impaired. It was also the right of a Member to decide the composition of its government delegation 
as a matter of customary international law. Absent an explicit limitation in its constitutive treaties, 
no international organization c ould interfere with a M ember's decision as to whom to accredit as a 
member of its delegation to an organization.  No such limitation was provided for in WTO rules. China 
noted in this respect that the Appellate Body and panels ha d repeatedly stated that "nothing in the 
WTO Agreem ent, the DSU, or the Working Procedures of the Appellate Body specifies who can 
represent a government in an oral hearing".40 In other words, when China decide d to invite legal 
counsel to join its delegation and participate in dispute settlement proceedings, it was exercising its 
rights as a Member. These rights could  not be restricted by the WTO as an institution or by any 
Member with whom China was holding cons ultations under the DSU. In addition to being deeply 
rooted in law, the right to invite legal counsel to participate in all stages of proceedings was 
well-established in practice. As a matter of fact, Members ha d always permitted legal counsel to 
participa te in consultations as part of a Member's delegation. In the 38 disputes between China and 
the U nited States to date, China had appointed legal counsel to its consultation delegations on most 
occasions . The United States  had never obstructed these appointm ents. On the contrary, the 
United  States  had always accepted this practice , aside from  in the three previously mentioned 
disputes. Other Members ha d held consultations with China in the presence of  legal counsel without 
objection. The recent US objections to the presence of legal counsel in consultations thus impair ed 
the rights of Members and ignore d long-standing practice.  
22.4.   In China's view, the US objections to China's exercise of its right to determine the composition 
of its delegation in consultations had not been raised in good faith. China believe d that the US 
objections to the presence of legal counsel during consultations f ell short of the requirement in the 
DSU to conduct consultations in good faith. Article 4.3 of the DSU require d that a Member to whom 
a request for consultation s was made  had to " enter into consultations in good faith". The obligation 
of good faith applie d to the Member's conduct throughout the consultations phase.  Good faith  was 
not just an abstract concept . It require d that Members  enter into consultations with a genuine 
interest in resolving the dispute. Disrupting consultations by objecting to  the p resence of legal 
counsel on untenable grounds d id not demonstrate good faith. The U nited States had offered two 
reasons for objecting to the presence of legal counsel: ( i) consultations had to  be conducted on a 
government -to-government basis; and ( ii) the presence of legal counsel could threaten the 
confidential nature of consultations. These reasons were nothing more than excuses for th e 
disruptive conduct of the U nited States, which serve d only to obstruct the purpose of consultations. 
With respect  to the first reason offered by the U nited States, China disagree d that a Member's 
delegation was somehow rendered non -governmental once it include d legal counsel retained by that 
Member. As China ha d just explained, every Member ha d the right under WTO rules and customary 
international law to designate representatives of its government and decide the composition of its 
delegation. Nothing in t he DSU suggest ed that consultations had to  take place between delegations 
comprised only of full -time government employees. With respect  to the second reason offered by 
the U nited States, China agree d that consultations were to be kept confidential under A rticle 4.6 of 
                                                
37 Appellate Body Report, EC – Bananas III, para. 12.  
38 Panel Report, Korea – Alcohol, para. 10.31.  
39 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 54.  
40 Appellate Body Report, EC – Bananas III, para. 12. See also Panel Report, Indo nesia – Autos, para. 
14.1. WT/DSB/M/421  
 
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  the DSU. However, China consider ed that the obligation of confidentiality applie d irrespective of 
whether a Member's delegation to consultations include d legal counsel. A Member was always 
obliged to ensure that its entire delegation, includi ng legal counsel, observe d the confidentiality 
requirement.41 China, like all other Members, require d every Member of its delegation, including 
legal counsel, to observe this requirement. China ensure d that legal counsel observe d the 
confidentiality requirement by having  them execute a confidentiality agreement for each 
engagement. In light of the mechanisms already established to address confidentiality concerns, 
China s aw no reason for such concerns to be grounds for eroding the right of Members to decide the 
composition of their delegations for consultations.  
22.5.   In China's view, acquiescing to the US practice would  disadvantage developing Members and 
further compromise the WTO dispute settlement system . China believe d that the cont inued US 
objections to having legal counsel participate in consultations w ould be to the disadvantage of 
developing Members and w ould further compromise the WTO dispute settlement mechanism. The 
WTO dispute settlement mechanism ha d evolved into a highly co mplex process in the years since it 
had been  founded. Unfortunately, participating Members d id not always stand on equal ground. As 
the DSB was aware, Members were at vastly different levels of development. Many d id not use any 
of the three WTO working languages as their official language, which further strain ed their limited 
resources. To put this issue in perspective, China ask ed Member s how many, among the WTO's  164 
Members, had an entire government department dev oted to litigating WTO disputes  and staffed with 
international trade lawyers who had  decades of experience, as d id the U nited States.  The answer 
was obvious: not many. Thus, the ability to seek assistance from legal counsel at all stages of dispute 
settlem ent proceedings, including during consultations, was necessary to ensur e a level playing field 
for all Members.  
22.6.   In closing, China ask ed Members to consider this issue in context. The WTO dispute settlement 
mechanism was under serious strain and fac ed considerable uncertainty. The efficient resolution of 
disputes ha d already been compromised. Preventing Members from exercising their right to retain 
and rely on legal counsel in consultations w ould only increase hurdles when  attempting to resolve  
disputes eff iciently. The  unjustified  US objections to the participation of legal counsel was thus of 
systemic concern. China wished to thank Members for their careful attention to its remarks . China  
urged the U nited States to eliminate an unnecessary source of tension within the system by ceasing 
its practice of raising objections to the participation of legal counsel in the WTO dispute settlement 
proceedings , and by complying with its obligation to conduct consultations in  good faith. If the 
United States were to continue its practice, China would reserve its right to seek a systemic 
resolution of this issue as part of  reform ing the WTO . China also look ed forward to engaging further 
on this issue with Members whose  interest s were  at stake.  
22.7.   The representative of  the United  States  said that t he United States t ook note of China 's 
statement. The United States  understood that China had asserted a so -called "right" for one Member 
to decide unilaterally to include persons other tha n government officials in meetings between parties 
consulting pursuant to Article 4 of the DSU. Consultations played an important role in helping to 
resolve a dispute. Article 4.2 of the DSU provided that: "[e]ach Member undertakes to accord 
sympathetic co nsideration to and afford adequate opportunity for consultation regarding any 
representations made by another Member concerning measures affecting the operation of any 
covered agreement taken within the territory of the former."42 And Article 4.5 of the DSU  provided 
that: "[i]n the course of consultations in accordance with the provisions of a covered agreement, 
before resorting to further action under this Understanding, Members should attempt to obtain 
satisf actory adjustment of the matter ". Thus, consultations were not simply a box -checking exercise. 
Rather, they "serve the purpose of, inter alia, allowing parties to reach a mutually agreed solution, 
and where no solution is reached, providing the parties an opportunity to 'define and delimi t' the 
scope of the dispute between them."43 The DSU text did not specify the right asserted by China to 
insist that a non -governmental person be permitted to attend consultations between two WTO 
Members. The "right" asserted by China would therefore encomp ass the ability to force another 
Member to make statements in the presence of that person. In addition to not seeing such a right 
expressed in the DSU, the United States did not see how insisting on the ability to bring non -
governmental persons to consulta tions, over the objections of the other consulting Members, would 
serve the aim of consultations. For instance, if a party to consultations were to indicate they did not 
                                                
41 Panel Report, Korea – Alcohol, para. 10.32. See also Panel Report, Indonesia – Autos, para. 14.1.  
42 Article 4.2 of the DSU.  
43 US – Shrimp (Thailand) / US – Customs Bond Directive (AB), para. 293.  WT/DSB/M/421  
 
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  think it was helpful or appropriate to include persons other than government officials , insisting on 
the presence of such non -government persons would not assist in reaching a positive solution to 
that dispute. Moreover, what China attempted to frame as a Member's "right" was essentially a view 
that its preference concerning the participati on of non -governmental persons in consultations 
meetings must dominate over the preferences of the other consulting Member. This hardly seemed 
to reflect the cooperative spirit in which consultations should be held. The United States would 
consider this to  be an issue – not unlike venue or timing – that the consulting parties in a given 
dispute should discuss and work out among themselves. The United States also noted that China 
had framed the issue as concerning the inclusion of outside counsel, or lawyers . However, an 
implication of China's position would be that Members would also be free to include, as part of their 
own government delegation, other members of the private sector, including non -governmental 
organizations – despite the preference of the oth er consulting Member. The United States asked 
China whether it could confirm that this understanding was correct. If not, the United States asked 
on what basis in the text of the DSU China could distinguish between one category of non -
governmental persons – lawyers – and other categories of non -governmental persons.  
22.8.   The United States also noted  China 's suggestion that the Appellate Body ha d somehow already 
decided this issue. Putting aside the question of what weight should be accorded to the Appellate 
Body's statement in the "EC – Bananas III" dispute (DS27)44, which had been made in the context 
of that particular dispute, the United States note d that it was simply inapplicable to the issue China 
had raised. In particular, in the "EC – Bananas III" dispute (DS27), the Appellate Body had allowed 
the participation of two legal counsel, who had not been government employees of a party, at the 
oral hearing in that appeal.45 The issue, therefore, had not concerned consultations between two 
Members under Article 4 of the DSU. Finally, the United States  noted with concern that China had 
made several representations about certain consultations held with the United States. The United 
States  remind ed China of its obligations, including in Article 4.6 of the DSU, which p rovided that: 
"[c]onsultations shall be confidential" . In its statement made at the present meeting, China had 
indicated it understood that obligation, but then proceeded to ignore that obligation by making 
several representations with respect to consultat ions with the United States. Given this requirement 
of confidentiality, it would not be appropriate for the United States to engage on China's specific 
assertions concerning consultations with the United States. The United States  noted, however, that 
it would undermine the purposes served by consultations if a Member could not expect the other 
party to honour WTO rules to maintain the confidentiality of those consultations. At best, China's 
representations concerning consultations with the United States at this meeting represented a lapse 
in judgment by China. The United States  expected that it would not be repeated.  
22.9.   The representative of  the European  Union  said that t he EU w ished  to recall that, pursuant to 
Article 3 .10 of the DSU, if a dispute aro se, all M embers had to  engage in the dispute settlement 
procedures in good faith and in an effort to resolve the dispute. More specifically, A rticle 4. 3 of the 
DSU stipulate d that the Member to which  the request for consultations had been made had to  enter 
into consultations in good faith, with a view to reaching a mutually agreed solution. At the same 
time, pursuant to Article 4.6 of the DSU, the consultations had to  be confidential. The EU believed 
that this specific provision reflect ed the fact that informati on exchanged during consultations could 
be of a particularly sensitive nature. The EU believed that  this was also one of the reasons why, 
subject to the provisions of Article 4.11 of the DSU and unlike in the case of panel and Appellate 
Body proceedings, t he parties to the dispute ha d a say on whether to allow the participation of other 
Members in the consultations.  The EU believed that while each Member ha d the right, in principle, 
to determine the composition of its delegation, if an issue ar ose in a spec ific dispute as regard ed the 
participation of certain persons in the consultations, both parties should strive, in keeping with the 
principle of good faith, to reach an agreement that would allow for orderly and constructive 
discussions in the consultation s, and that would take  into account the confidential character thereof. 
In that regard, the EU  noted that it would not be consistent with these principles for a party to object 
to the presence of the other party's government officials in the consultations.  Likewise, the EU 
generally d id not consider that the presence of outside lawyers, representing the party  for the 
purposes of a specific  dispute, should give rise to objections. The EU wished to  note, in that regard, 
that lawyers were generally subject to professional and ethical  requirements such as to ensure the 
confidentiality of consultations. Based on past  experience, the EU believed that the presence of such 
lawyers at consultations was not infrequent and ha d not been problematic. If a responding Member 
to which a request for consultations was addressed refuse d to engage in consultations on the sole 
                                                
44 WT/DS27.  
45 WT/DS27/AB/R, para s. 10-12. WT/DSB/M/421  
 
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  ground that such external lawyers were part of the requesting Member's delegation, th at responding 
Member fail ed to enter into consultations  in the man ner mandated by  Article 4.3 of the DSU. This 
also mean t that, once 30 days from the receipt of the consultations request ha d passed, the 
requesting Member ha d the right to proceed directly to request the establishment of a panel, in 
accordance with Article  4.3 of the DSU.   
22.10.   The representative of  India said that India wishe d to thank China for including this serious 
systemic issue on the Agenda of the present m eeting . India wished to take this opportunity to 
comment on this important matter. Like several othe r Members, India ha d recently  been at the 
receiving end of US intransigence in the matter of allowing the participation of private counsel as 
part of its delegation during consultations with the United States. The US attempted  to justify  its 
position by alluding to the 'government -to-government ' nature of consultations, and to 
confidentiality concerns arising out of the presence of private counsel. India believed that the 
presence of private counsel, retained a party  for its legal expertis e, did not alter the government -
to-government nature of consultations. Furthermore, nothing in the text of the DSU limit ed a 
Member 's right to determine the composition of its own delegation at any stage of WTO dispute 
settlement proceedings. In fact, Arti cle 4.10 of the DSU clearly provide d that: "[d]uring consultations 
Members should give special attention to the particular problems and interests of developing country 
Members ". Exchanging and processing complex technical information, asking follow -up ques tions, 
and assessing the strength of legal claims in light of the information exchanged  were all important 
components of the consultation s phase . In the absence of retained private counsel, Members who 
did not have in -house legal expertise were put to a se vere disadvantage when faced with a battery 
of experienced in -house legal counsel during dispute consultations. Most developing country 
Members, like India, d id not have an in -house legal team, and therefore, need ed to retain private 
counsel to help them f ully present their claims and defend their rights and interests during all stages 
of WTO dispute settlement proceedings , including consultations. This was critical to ensuring that 
Members were able to effectively participate in dispute settlement proceedi ngs, and form ed a 
fundamental part of a Member 's due process rights. The US contention that the presence of private 
counsel could undermine the confidential nature of consultations was completely unfounded. All 
Members were obliged to ensure that their delegations, including retained private counsel, observe d 
the confidentiality requirement stipulated in Article 4.6 of the DSU. To this end, Members who 
retain ed private counsel for a specific matter had them sign a confidentiality clause to prevent any 
breach of confidentiality. In conclusion, India wishe d to reiterate that nothing in the text of the DSU 
limited a Member 's sovereign right to determine the composition of its delegation at any stage of 
the dispute settlement proceedings. Any attempt to p lace an artificial limit on this right was 
unjustified and gravely prejudice d due process rights of Members to participate meaningfully at all 
stages of dispute settlement proceedings. India looked forward to engaging with Members on this 
important issue.   
22.11.   The representative of  Norway  said that t here was long -settled case -law that a Member ha d 
an absolute right to compose its delegation for all matters relating to WTO dispute settlement as it 
wishe d.46 Confidentiality issues could  not preclude this right. On the contrary, all members of a 
delegation had to respect the obligation of confidentiality regarding  a dispute, regardless of whether 
that person was permanently employed by a government or hired to assist that government on 
specific matters. This w ould apply at consultation stage as well as at a later stage in dispute 
settlement proceedings.  
22.12.   The representative of  Turkey  said that Turkey wished to  thank China for placing this item on 
the Agenda of the present meeting . Turkey sh ared the concern s expressed at the present meeting . 
Like some other Members, Turkey ha d experienced on more than one occasion a US refusal to 
engage in consultation s at a  meeting on the ground that Turkey 's delegation had included external 
legal counsel. T urkey had been  concerned about this conduct  for two main reasons. First, this 
conduct was inconsistent with the important principle that a Member was free to compose its 
delegation as it s aw fit and to decide who should represent it as members of its deleg ation in a WTO 
dispute. This principle ha d been reiterated multiple times by panels and the Appellate Body, and it 
applie d throughout the dispute settlement process, including at hearings and for the preparation of 
written submissions. This principle  therefore obviously had to apply at the consultation s stage. A 
Member should not be able to deny another Member this important right by making its participation 
in consultations depend ent on that other Member renouncing its right. Second, just as importan tly, 
                                                
46 See Appellate Body Report, EC – Bananas III, paras 10 -12; Panel Report, Korea – Certain Paper, para. 
7.15. WT/DSB/M/421  
 
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  all Members, and in particular developing countries, LDCs and countries that ha d dealt with little or 
no WTO disputes , could require external legal counsel to ensure a level playing field in terms of legal 
expertise in a given  dispute. This was a simp le matter of justice and due process. To refuse to hold  
consultations with another Member 's external legal counsel mean t that Members with more 
experience in the WTO dispute settle ment mechanism would always have  an inherent advantage 
over other  Members. Members  should reflect on this issue.   
22.13.   The representative of  Switzerland  said that t he purpose of consultations was to arrive at a 
mutually agreed solution to a dispute. Consultations enable d parties to gather relevant information 
for that purpose or, if the consultations fail ed to settle the dispute, to define the scope of the dispute 
for the next stages of dispute settlement. Switzerland share d the view expressed by other 
delegations that it  was for each Member to decide who was in its delegation for consultations. 
Indeed, pursuant to Article 4.6. of the DSU, the confidentiality of consultations had to  be maintained. 
Switzerland consider ed in particular that the participation of external coun sel in consultations was 
compatible with both the purpose and the confidential nature of consultations.   
22.14.   The representative of  Ukraine  said that Ukraine wished to thank China for raising th is matter 
at the present meeting . Ukraine s aid that Members were ob liged to comply with the requirements 
of the DSU, particularly with Article 4.6 thereof which provide d that consultations had to  be 
confidential. This obligation require d parties to ensure that the matters discussed during 
consultations be kept confidentia l. At the same time, nothing in the WTO Agreements or in 
international law prevent ed a Member from determining for itself the composition of its delegation 
in WTO dispute settlement proceedings.47 Ukraine  therefore believed that  each Member could at its 
discretion decide on the co mposition of its delegation to participate in consultations.   
22.15.   The representative of  Canada  said that Canada wished  to reiterate its long-standing position 
regarding the participation of outside counsel in WTO dispute settl ement proceedings. Canada 
consider ed that a Member was free to compose its delegation as it s aw fit, including by calling upon 
outside counsel, provided that the Member complie d with its confidentiality obligations set out in the 
DSU. In this respect, Cana da saw no distinction between consultations, on the one hand, and 
proceedings before a panel or the Appellate Body, on the other hand. Over t he years, the 
participation of outside counsel in WTO di spute settlement proceedings had  become quite common. 
Membe rs that ha d recourse to outside counsel consider ed that their participation enable d them to 
better defend their interests in dispute settlement. T hat said, the discussion at the present meeting  
was not about the pros and cons of outside counsel participating in dispute settlement . It was about 
whether an objection to the participation of outside counsel in consultations could  be justified under 
the DSU. Ultimately, if consultations d id not take place as a result of an objection from a responding 
party to the participation of outside counsel to assist a complaining party, the complaining party 
could  seek to proceed directly to request the establishment of a panel.   
22.16.   The representative of  Brazil  said that Brazil  had some preliminary views on this mat ter in 
line with the principle of good faith , which should guide consultation s.  Brazil believed that, unless 
there was agreement between the parties, preventing Members from having outside advisors in 
consultations would only work in favour of  Members wit h large dispute settlement resources  and 
sufficient in -house government lawyers .  However, this would be to the disadvantage of o ther 
Members, in particular developing countries, who could not afford such resources . Brazil was ready 
to engage in discussion s on this matter.  
22.17.   The representative of  South  Africa  said that South Africa wished to  thank China for p lacing 
this item on the Agenda. China raise d fundamental systemic issues in its statement made at the 
present meeting , especially in the context of developing countries that often lack ed necessary 
resources to develop in -house legal expertise. A Member should be able to determine the 
composition of its delegation . Article 4.6 of the DSU  should be taken into account . The issue of 
private legal representatives assisting or acting on behalf of Members was not addressed in any WTO 
agreement, including the DSU and its  Working Procedures. In addition, the issue of the composition 
of a Member's delegation in consultations ha d never been examined by any panel or the Appellate 
Body. However, the issue of private legal representation at the appellate stage had been  raised in 
the Appellate Body r eport in the "EC – Bananas III" dispute (DS27) . Saint Lucia (a third party in the 
dispute ) had requested the Appellate Body to allow the participation of two legal counsel, who were 
not government employees, at the oral hearing of that appeal. The Appellate Body had recogni zed 
                                                
47 Appellate Body Report, EC — Bananas III, para. 10.  WT/DSB/M/421  
 
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  that there was no legal provision in WTO law specifying who can rep resent a government in an oral 
hearing of the Appellate Body. Nevertheless, the Appellate Body had concluded that representation 
"by counsel of a government's own choice may well be a matter of particular significance – especially 
for developing country Me mbers – to enable them to participate fully in dispute settlement 
proceedings".48 In a letter addressed to the parti es and third  parties on this issue, the Appellate 
Body ruled that "it is for a WTO Member to decide who should represent it as members of its 
delegation in an oral hearing of the Appellate Body".49 Since the adoption of the Appellate Body 
report in the "EC – Bananas III" dispu te (DS27) , it seem ed to be generally accepted that Members 
could  include non -governmental lawyers in their delegations at all stages of dispute settlement 
proceedings, including consultations, even though th at report  had specifically addressed the right of  
Members to be represented by private legal representatives at the appellate stage and not during  
consultations. There was some textual support in the DSU for the proposition that developing 
countries in particular should be free to include outside lawyers  in their delegations for consultations. 
According to Article 4 .10 of the DSU, "[d]uring consultations, Members should give special attention 
to the particular problems and interests of developing country Members". This would seem to apply 
to the need of t hese Members for technical capacity to participate fully in the consultations meetings. 
Excluding private legal representatives or , where applicable, institutions such as the ACWL, that 
specifically s ought  to level the playing field for lesser -developed Me mbers, would, arguably, fail to 
consider the specific needs of developing countries and would deprive lesser developed  Members 
from resources that would have allowed them to participate effectively in the dispute settlement 
system.   
22.18.   The representative of  China said that China wished to note that the statement made at the 
present meeting by the U nited States on this matter had  not provide d compelling reasons to justify  
its interference in the composition of other Members ' delegations when the U nited States was the 
responding party. China  wished to  recall that the U nited States had frequently  urged all Members as 
well as WTO adjudicators to compl y with the "clear text of the DSU ". However, the United States did 
not advocate compliance with the text of the DSU  with as much enthusiasm when its text did not 
support  US overreach. That wa s hypocritic al. The right to determine the composition of one's 
delegation was an inherent right of every Member , including the U nited States. Interference with 
such right could  give rise to a breach of due process which was the cornerstone of any dispute 
settlement system . What China ask ed was nothing more  and nothing less  than the consistent respect 
by the U nited States of  such inherent right. With respect to the question that the U nited States had 
raised , China wished  to emphasize that the term "legal counsel " as used in China's  statement 
referred to legal experts from a law firm retained by a Member to provide legal services during WTO 
dispute settlement proceedings. In China 's view, consultation s formed  part of dispute settlement 
proceedings, and were not distinguish able from  other dispute settlement proceeding phases . In this 
regard, private sector  individuals  other than legal professionals, who might  have a conflict of interest 
in a given  dispute did not fall  within the scope  of China's  statement made at the present meeting . 
By directly interfering with other Members ' inherent rights to decide participants in consultations, 
the U nited States had deliberately  disregarded not only the basic principle of due process , but had 
also undermined other Members ' abilities to make the best use of the dispute settlement system. 
This issue simply  represented the latest outrageous action  of the U nited States aimed at  placing 
itself above the rules agreed to by all Members. China's m essage was loud and clear. Every Member 
had the inherent right to decide the composition of its delegation for WTO dispute settlement 
proceedings, including consultation s. Forced forfeiture of su ch right would amount to a  denial of the 
right to counsel , which would run afoul of the due process principle. None of the  covered agreements 
and no  international norm g ave the U nited States the legitimacy to interfere with the exercise of 
such right by other Members. The iss ue that China had raised at the present meeting wa s the US 
practice of object ing to  the presence of outside counsel in consultations. China believe d that nothing 
in Artic le 4.6 of the DSU prevent ed it from raising or discussing this issue at the present  meeting. 
The U nited States had tried to raise the issue of  confidentiality. However, the confidentiality 
requirement imposed by Article 4.6 of the DSU only applie d to consu ltation s as such  held between 
Members. In other words, it was intended to protect the information that Members had exchanged 
during consultations regarding  a given dispute, and to prevent its disclos ure to unauthorized third 
parties. Article 4.6 of the DSU  did not prevent China from requesting that the DSB consider a 
Member 's practice in conducting consultations that China believe d hinder ed the fulfilment of the 
purpose of consultation s contemplated in the DSU. A discussion among Members of US objections 
to the participation of legal counsel in consultations did not prejudice US interests under Article 4.6  
                                                
48 Appellate Body Report, EC – Bananas III, para. 12.  
49 Appellate Body Report, EC – Bananas III, para. 10. WT/DSB/M/421  
 
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  of the DSU . The US practice had raised China's  concern s over the right of a Member to determine 
its representation in dispute settlement proceedings. This  discussion f ell squarely within the 
authority of the DSB. Under Article 2.1 of the DSU, the DSB ha d the authority to "administer [the] 
rules and procedures [ of the DSU]". As consultation s were a critical step in the dispute settlement 
process, this author ity of the DSB naturally extend ed to consideration of any matter that could 
systematicall y affect the way consultations we re conducted. As China had stated at the present 
meeting , the repeated US objections to the participation of outside counsel had deprived Members 
of their right to due process in consultations , and had compromised the fairness of the entire dispute 
settlement system. Given the systematic negative impact of this practice, China was entitled to raise 
this issue with the entire Membership . It was within the DSB 's authority to take this matter into 
consideration. China  also w ished  to emphasize that the lack of good faith demonstrated by the 
United States in putting forward groundless arguments in support of its objections had been  further 
compounded by the manner in which it had raised these objections. It was particularly upsetting to 
China that the U nited States had chose n not to raise its objections before  every member of the 
Chinese delegation had been seated in the meeting roo m, only minutes before the start of the 
consultations. To ambush a Member in such a manner f ell far short of the requirement s to "accord 
sympathetic consideration  … to consultation" (Article 4.2 of the DSU) and to "enter into consultations 
in good faith"  (Article 4.3 of the DSU) . China wished to  extend its appreciation for the statements 
made at the present meeting by other Members including the EU, India, Norway, Switzerland, 
Turkey, Ukraine, Brazil, Canada, South Africa and Guatemala. China  stood ready to  further engage 
in the discussion of this important issue with the entire M embership.   
22.19.   The representative of  Guatemala  said that Guatemala wished  to thank China for raising this 
issue at the present meeting.  Guatemala believed  that Members were free to decide on the issue of 
the composition of their delegation s in consultations. From a practical perspective, Guatemala s aw 
no reason why a Member was free to decide the composition of its delegation for panel and Appellate 
Body proceedings, but t hat it should not be free to decide the composition of its delegation for 
purposes of consultations under Article 4 of the DSU. Excluding representatives from delegations 
posed several problems. To mention a few: (i) excluding private counsel from delegati ons would 
create an unequal level-playing field for small developing countries that lack ed legal capacity when 
compared with  larger delegations such as that of the United States, with  specialized in -house 
lawyers; (ii) there w ould always be the question of who decide d the exclusion of a representative of 
a Member; and (iii) the discussion about whether a Member of a delegation could  participate in 
consultations w ould certainly create a distraction from the subject -matter of consultations. From a 
legal persp ective, an answer to this issue could  be found by analogy in past disputes.  China ha d 
mentioned several of those cases. For example, in the "EC – Bananas III" dispute (DS27) , the 
Appellate Body had concluded that WTO Members could  bring private counsel to oral hearings as 
part of their delegations. In the same vein, the panels in the "Korea – Alcoholic Beverages" dispute 
(DS75)  and in the " Indonesia – Autos " dispute (DS54) had concluded that private counsel w ere 
permitted to attend panel meetings.  In addition, the sovereign rights of States to designate their 
representatives to international meetings was a long -standing principle of international law that was 
codified in Article 43 of the Vienna Convention on the Representation of States in their Relation s 
with International Organizations  of a Universal Character . The DSU was to be interpreted in 
accordance with customary rules of interpretation of public international law. In light of this , 
Guatemala wished to reiterate that Members were free to decide on the issue of the composition of 
their delegations at any stage of the dispute settlement proceedings.  
22.20.   The DSB took note of the statements.  
23  INDONESIA - SAFEGUAR D ON CERTAIN IRON OR  STEEL PRODUCTS  
A.  Statement by Indonesia  
23.1.   The representative of Indonesia , speaking under "Other Business",  said that Indonesia wishe d 
to inform  the DSB that it ha d agreed with Chinese Taipei and Viet Nam , under Article 21.3(b) of the 
DSU, that the reasonable period of time (RPT) for Indonesia to implement the DSB's 
recommendations and rulings in the "Indonesia – Safeguard on Certain Iron or Steel Products" 
(Chinese Taipei) dispute (DS490) and in the "Indonesia – Safeguard on Certain  Iron or Steel 
Products" (Viet Nam) dispute (DS496)  would  be seven  months  starting  from 27 August 2018, 
namely,  the da te of adoption of the relevant R eports in these disputes. The RPT would , therefore, 
expire on 27 March 2 019. Indonesia w ished to  express its appreciation to Chinese Taipei and Viet 
Nam for their cooperation during the RPT nego tiation s. Indonesia  looked forward to hav ing further WT/DSB/M/421  
 
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  discussions  on these matters  so as to  implement the DSB's recommendations and rulings in these 
disputes in due course.   
23.2.   The representative of Viet Nam said that Viet Nam was equally pleased to report that the 
parties to th ese dispute s had completed their discussions under Article 21.3(b) of the DSU. All three 
parties ha d agreed to a n RPT of seven months, during which Indonesia w ould implement the 
recommendations and rulings of the DSB. This mean t that Indonesia's RPT w ould expire on 
27 March  2019. Viet Nam wishe d to thank Indonesia and Chinese Taipei for the cooperative and 
amicable spirit that ha d characteri zed these important discussions. Viet Nam look ed forward to 
Indonesia's full compliance with the  DSB's rulings and recommendations of in th ese dispute s by 
27 March 2019.   
23.3.   The representative of Chinese  Taipei  said that Chinese Taipei wished to  thank Indonesia for 
its statement. Chinese Taipei  simply wished to confirm the agreement on the RPT  which wou ld last 
seven  months . Chinese Taipei wished to  thank Indonesia for its cooperation in reaching this 
agreement. Chinese Taipei would  work closely with Viet Nam and Indonesia for a prompt settlement 
of these disputes.   
23.4.   The DSB took note  of the statements.  
__________