RESTRICTED  
  
WT/DSB/M/420  
 
27 February 2019 
(19-1132) Page: 1/52 
Dispute Settlement Body  
29 October 2018    
 
MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 29  OCTOBER  2018 
Chairperson: Ms. Sunanta Kangvalkulkij (Thailand)  
Table of Contents  
 
1   SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOP TED 
BY THE DSB  ................................ ................................ ................................ ......................  3 
A.  United  States – Anti-dumping measures on certain hot -rolled steel products from Japan: S tatus 
report by the Uni ted States  ................................ ................................ ................................ .. 3 
B.  United  States – Section 110(5) of the US Copyright Act: Status report by the Uni ted 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: Sta tus report by the U nited States  ................................ ................................ ..............  5 
E.  European  Union – Anti-dumping measures on biodiesel from Indonesia: Status report by the 
European  Union  ................................ ................................ ................................ ..................  6 
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 Indones ia ................................ ................................ ................................ ... 7 
H.  United  States – Anti-dumping measures on certain oil country tubular goods from Korea: 
Status report by the United  State s ................................ ................................ ........................  8 
2   UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  OF 2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE DSB  ..........................  8 
A.  Statement by the European  Union  ................................ ................................ ....................  8 
3   EUROPEAN  COMMUNI TIES AND CERTAIN MEM BER STATES – MEASURE S AFFECTING 
TRADE IN LARGE CIVIL  AIRCRAFT: IMPLEMENT ATION OF THE RECOMME NDATIONS 
ADOPTED BY THE DSB  ................................ ................................ ................................ .... 10 
A.  Statement by the United  States  ................................ ................................ ...................... 10 
4   STATEMENT BY THE  UNITED  STATES CONCE RNING THE ISSUANCE OF ADVISORY  
OPINIONS ON ISSUES N OT NECESSARY TO RESO LVE A DISPUTE  ................................ .. 11 
5   PAKISTAN – ANTI -DUMPING MEASURES ON BIAXIALLY OR IENTED  
POLYPROPYLENE FILM F ROM THE UNITED ARAB EMIRATES  ................................ ..........  23 
A.  Request for the establishment of a panel by the United Arab Emirat es ................................ .23 WT/DSB/M/420  
 
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  6   KOREA – SUNSET R EVIEW OF ANTI -DUMPIN G DUTIES ON  
STAINLESS STEEL BARS  ................................ ................................ ................................ . 23 
A.  Request for the establishment of a panel by Japan  ................................ ............................ 23 
7   RUSSIAN  FEDERATI ON – MEASURES ON THE  IMPORTATION OF LIVE  PIGS,  
PORK AND OTHER PIG P RODUCTS FROM THE EUR OPEAN  UNION  ................................ ... 24 
A.  Recourse to Article  21.5 of the DSU by the European  Union: Request for the establishment  
of a panel  ................................ ................................ ................................ ......................... 24 
8   CHINA – CERTAIN MEASURES CONCERNING THE PROTECTION OF IN TELLECTUAL 
PROPERTY RIGHTS  ................................ ................................ ................................ .........  25 
A.  Request for the establishment of a panel by the United  States  ................................ ............ 25 
9   UNITED  STATES – CERTAIN MEASURES ON STEEL AND ALUMINIUM  
PRODUCT S ................................ ................................ ................................ .....................  26 
A.  Request for the establishment of a panel by China  ................................ ............................ 26 
10   UNITED  STATES – CERTAIN MEASURES ON  STEEL AND ALUMINIUM   
PRODUCTS  ................................ ................................ ................................ .....................  28 
A.  Request for the establishment of a panel by the European  Union ................................ ......... 28 
11   UNITED  STATES – CERTAIN MEASURES ON  STEEL AND ALUMINIUM   
PRODUCTS  ................................ ................................ ................................ .....................  31 
A.  Request for the establishment of a panel by Canada  ................................ .......................... 31 
12   UNITED  STATES – CERTAIN MEASURES ON  STEEL AND ALUMINIUM   
PRODUCTS  ................................ ................................ ................................ .....................  31 
A.  Request for the establishment of a panel by Mexico  ................................ ........................... 31 
13   UNITED  STATES – CERTAIN MEASURES ON  STEEL AND ALUMINIUM   
PRODUCTS  ................................ ................................ ................................ .....................  33 
A.  Request for the establishment of a panel by Norway  ................................ .......................... 33 
14   UNITED  STATES – CERTAIN M EASURES ON STEEL AND  ALUMINIUM  
PRODUCTS  ................................ ................................ ................................ .....................  35 
A.  Request for the establishment of a panel by the Russian  Federation  ................................ ....35 
15   CANADA – ADDITI ONAL DUTIES ON CERTA IN PRODUCTS FROM  
THE UNITED  STATES  ................................ ................................ ................................ ...... 36 
A.  Request for the establishment of a panel by the United  States  ................................ ............ 36 
16   CHINA – ADDITIO NAL DUTIES ON CERTAI N PRODUCTS FROM  
THE UNITED STATES  ................................ ................................ ................................ ...... 37 
A.  Request for the establishment of a panel by the United  States  ................................ ............ 37 
17   EUROPEAN  UNION – ADDITIONAL DUTIES ON CERTAIN PRODUCTS FROM THE 
UNITED  STAT ES ................................ ................................ ................................ .............  38 
A.  Request for the establishment of a panel by the United  States  ................................ ............ 38 
18   MEXICO – ADDITI ONAL DUTIES ON CERTA IN PRODUCTS FROM THE   
UNITED  STATES  ................................ ................................ ................................ .............  39 
A.  Request for the establishment of a panel by the United  States  ................................ ............ 39 
19   UNITED  STATES – CERTAIN MEASURES ON  STEEL AND ALUMINIUM  PRODUCTS  ..... 40 
A.  Request for the establishment of a panel by Turkey  ................................ ........................... 40 WT/DSB/M/420  
 
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  20   APPELLATE BODY APPOINTMENTS: PROPOS AL BY ARGENTINA; AUS TRALIA; THE 
PLURINATIONAL ST ATE OF BOLIVIA; BRAZ IL; CANADA; CHILE; C HINA; COLOMBIA; 
COSTA  RICA; DOMINICA N REPUBLIC; ECUADOR;  EGYPT; EL  SALVADOR;  THE 
EUROPEAN  UNION; GUAT EMALA; HONDURAS; HON G KONG, CHINA; ICELA ND; INDIA; 
INDONESIA; ISRAEL; K AZAKHSTAN; KOREA; ME XICO; NEW  ZEALAND; N ICAR AGUA; 
NORWAY; PAKISTAN; PA NAMA; PARAGUAY; PERU ; THE RUSSIAN  FEDERA TION; 
SINGAPORE; SWITZERLA ND; THE SEPARATE CUS TOMS TERRITORY OF TA IWAN, 
PENGHU, KINMEN AND M ATSU; TURKEY; UKRAIN E; URUGUAY; THE BOLI VARIAN 
REPUBLIC OF VENEZUEL A AND VIET  NAM ................................ ................................ ...... 42 
21   FOSTERING A DIS CUSSION ON THE FUNCT IONING OF THE APPELL ATE BODY 
(JOB/DSB/2): STATEME NT BY HONDURAS  ................................ ................................ .... 48 
 
1  SURVEILLANCE OF IMPL EMENTATION OF RECOMM ENDATIONS ADOPTED BY  THE DSB  
A.  United  States – Anti-dumping measures on certain hot -rolled steel products from Japan: Status 
report by the United  States (WT/DS184/15/Add.188)  
B.  United  States – Section 110(5) of the US Copyright Act: Status report by the United  States 
(WT/DS160/24/Add.163)  
C.  European  Communities – Measures affecting the approval and marketing of biotech products: 
Status report by  the European  Union (WT/DS291/37/Add.126)  
D.  United  States – Anti-dumping and countervailing measures on large residential washers from 
Korea: Status report by the United  States (WT/DS464/17/Add.10)  
E.  European  Union – Anti-dumping measures on biodiesel from Indonesia: Status report by the 
European  Union (WT/DS480/8/Add.2)  
F.  United  States – Certain methodologies and their application to anti -dumping proceedings 
involving China: Status report by the United  States (WT/DS471/17/Add.2)  
G.  Indonesia – Measu res concerning the importation of chicken meat and chicken products: Status 
report by Indonesia (WT/DS484/18/Add.1)  
H.  United  States – Anti-dumping measures on certain oil country tubular goods from Korea: Status 
report by the United  States (WT/DS488/12/A dd.1)  
1.1.  The Chairperson  noted that there were eight sub -items under this Agenda item concerning 
status reports submitted by delegations pursuant to Article 21.6 of the DSU. She recalled that Article 
21.6 required that: "[u]nless the DSB decides otherwise, th e issue of implementation of the 
recommendations or rulings shall be placed on the Agenda of the DSB meeting after six months 
following the date of establishment of the reasonable period of time … and shall remain on the DSB's 
Agenda until the issue is res olved". Under this Agenda item, she invited delegations to provide up 
to date information about their compliance efforts. She also reminded delegations that, as provided 
for in Rule 27 of the Rules of Procedure for DSB meetings: "[r]epresentatives should m ake 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.  
A.  United  States – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status report by the United  States (WT/DS184/15/Add.188)  
1.2.  The Chairperson  drew attention to document WT/DS184/15/Add.18 8, which contained 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 hot -rolled steel products from Japan.  
1.3.  The representative of the United States  said that the United States had provided a status report 
in this dispute on 1 8 October 2018, in accordance with Article 21.6 of the DSU. The United States WT/DSB/M/420  
 
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  had addressed the DSB's recommendations and rulings with res pect to the calculation of 
anti-dumping margins in the hot -rolled steel anti -dumping duty investigation at issue. With respect 
to the recommendations and rulings of the DSB that had yet to be addressed, the US Administration 
would work with the US Congress with respect to appropriate statutory m easures 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 i mplement the DSB's recommendations and rulings so as to resolve this 
matter.   
1.5.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
B.  United  States – Section 110(5) of the US Copyright Act: Status report by the 
United  States (WT/DS160/24/Add.163)  
1.6.  The Chairperson  drew attention to document WT/DS160/24/Add.163, 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 18 October 2018, in accordance with Article 21.6 of the DSU. The US Administration 
would continue to confer wit h the European Union, and to work closely with the US Congress, in 
order to reach a mutually satisfactory resolution of this matter.  
1.8.  The representative of the European Union  said that the EU 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 and to reiterate that 
the EU would like to resolve this case as soon as possible.   
1.9.  The representative of China  said that the United States had submitted its 164th status report 
in this dispute, which was not materially different from the reports submitted by the U nited States 
ahead of previous DSB meetings, or from the first one submitted by the United States in November 
2004. No further progress toward implementation was reported at the present meeting. This item 
had stayed in the DSB Agenda for more than 17 years and had bec ome record -breaking in terms of 
persistent failure to honour the commitments under the covered agreements. China said that as a 
result of such persistent non -compliance, Section 110(5) of the US Copyright Act, which had long 
ago been found inconsistent wit h the requirements of the Berne Convention and the TRIPS 
Agreement, was still in effect. He said that the U nited States continued to fail to accord to intellectual 
property right holders the minimum standard of protection required by the TRIPS Agreement. H e 
said that 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 Agreeme nt 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". China urged the United States to faithfully honour its 
commitments under the DSU an d the TRIPS Agreement by implementing the DSB's 
recommendations and rulings in this dispute. China again 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.  
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 item, China attempted to give the appearance of 
concern for intellectual property rights. China 's intervention was ironic, given item 8, the request for 
estab lishment of a panel by the United States in the "China – Certain Measures Concerning the 
Protection of Intellectual Property Rights " dispute (DS542). The United States  said that it would 
address China 's purported interest in protecting intellectual propert y rights under that 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. 
China said that it would make a  statement under item 8 of the present  meeting.  China wished to  WT/DSB/M/420  
 
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  emphasize again that the issue under this item was  whether the United States had implemented the 
DSB's recommendations and rulings in this dispute. China said that the answer was negative. Chi na, 
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.126)  
1.13.   The Chairperson  drew attention to document WT/DS291/37/Add.12 6, 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 Au thority ha d finalized its scientific opinion and ha d 
concluded that there were no safety concerns. On 18 October  2018, one draf t authori zation on a cut 
flower1 had been  presented for a vote in the Member States Committee. As the vote had resulted in 
"no op inion", the draft measure would  be submitted for a vote to the Appeal Committee in November  
2018. On 22 October, two draft authori zations , one for a renewal of GM maize2 and one new 
authori zation for GM maize3, had been  voted in the Appeal Committee with a "no opinion " result. It 
was now for the Commis sion to decide on these authoriz ations. The EU continue d to be committed 
to acting in line with its WTO obligations. More generally, the EU recalled that its approval syste m 
was not covered by the DSB's recommendations and rulings.   
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 appr ovals, even where the European Food Safety Authority 
(EFSA) ha d concluded that the product was safe.  Of note, at least 17 member States, as well as 
certain regions within EU member States, ha d submitted requests to opt out of EU approvals.  The 
United States again urge d the EU to ensure that all 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 re presentative of the European  Union  reiterated  that no EU m ember State ha d imposed 
any ban thus  far and that t here was a miscommunication between the United States and the EU on 
this point. The United States sa id that EU member States ha d imposed bans while the EU  believe d 
that the tru th was that no EU member State ha d imposed any ban thus  far. Under the terms of th e 
"opt-out Directive", as it was referred to by the United States, an EU member State could adopt 
measures prohibiting or restricting cultivation  only if such measures : were in line with EU law; were 
reasoned, proportional and non -discriminatory; and were based on compelling grounds.  The basic 
legislation to which the United States refer red to as  the opt-out Directive was in any event not 
covered by the DSB 's recommendations and rulings .  
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 Korea: Status rep ort by the United  States (WT/DS464/17/Add.10)  
1.18.   The Chairperson  drew attention to document WT/DS464/17/Add. 10, which contained the 
status report by the United States on progress in the implementation of the DSB's recommendations 
                                                
1 Carnation Dianthus caryophyllus L. line FLO -40685 -2. 
2 Maize NK603 x MON 810.  
3 Maize  MON 87427 x MON 89034 x 1507 x MON 88017 x 59122.  WT/DSB/M/420  
 
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  in the case concerning 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 18 October 2018, in accordance with Article  21.6 of the DSU. On 
15 December  2017, the United States 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 counterva iling 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 additional information. On 4 April 2018, Commerce had issued 
a preliminary determination revising certain aspects of its original determination. Following issuance 
of the preliminary determination, Com merce 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 determ ination, 
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 
recommendations of the DSB relating to anti -dumping measures c hallenged in this dispute.  
1.20.   The representative of Korea  said that 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, once  again, urged the United States to faithfully implement 
the DSB's recommendations and rulings in this dispute .  
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" i nconsistent with WTO obligations in this dispute.  
1.22.   The DSB took note  of the statements and agree d 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.2)  
1.23.   The Chairperson  drew attention to document WT/DS480/8/Add. 2, 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 bio diesel from Indonesia.  
1.24.   The representative of the European  Union  inform ed the DSB that the EU had  adopted the 
measure necessary to comply with the DSB 's recommendations and rulings in this dispute  before 
the expiry of the reasonable period of time ( RPT) agreed with Indonesia. On 18 October 2018, the 
EU had adopted Commission Implementing Regulation (EU) 2018/1570 terminating the proceeding 
concerning imports of biodiesel originating in Argentina and Indonesia and repealing Implementing 
Regulation (EU) No 119 4/2013. The Commission Regulation had been  published in the Official 
Journal of the European Union on 19 October 2018 (OJ L 262, 19.10.2018, p. 40) and, according to 
Article 4 of the Regulation,  had entered into force on 20 October 2018. Since its entry in to force, no 
imports of biodiesel in the European Union from Indonesia and Argentina were subject to 
anti-dumping duties. The adoption of this Regulation ensure d the full implementation of the DSB 's 
recommendations and rulings and terminate d this dispute.   
1.25.   The representative of Indonesia  said that Indonesia wished to thank the EU for its status 
report , its statement made at the present meeting , and its publication of the Implementing 
Regulation , which Indonesia w ould study carefully.   
1.26.   The DSB took note  of the statements.  WT/DSB/M/420  
 
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  F.  United  States – Certain methodologies and their application to anti -dumping 
proceedings involving China: Status report by the United  States (WT/DS471/17/Add.2)  
1.27.   The Chairperson  drew attention to document WT/DS471/17/Add. 2, which cont ained 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.  
1.28.   The representative of the United  States said that t he United States had provided a status 
report in this dispute on 18  October  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 recommendations of the DSB.   
1.29.   The representative of China  said that China note d again, as indicated in the most recent  US 
status report, that the U nited States had not yet initiated any substantive implementation process 
to address the DSB 's recommendations and rulings in this dispute, other than "consulting with the 
interested parties ". China was again very disappointed by and deeply concerned with the US failure 
to implement the DSB's  recommendations and rulings. The WTO -inconsistent US measures 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, which 
should alert all Members and the international commun ity. China ha d 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. Once again , China urge d the U nited States to take concrete 
actions, re spect the WTO rules, and faithfully implement the recommendations and rulings in this 
dispute  in order  to fully comply with its obligations under the covered agreements.   
1.30.   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  previously reported to the DSB, the United  States 
continue d to consult with interested parties on options to address the DSB's recommendations in 
this dispute . That internal process was ongoing.  
1.31.   The DSB took note of the statements and agree d 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.1)  
1.32.   The Chairperson  drew attention to document WT/DS484/18 /Add.1 , which contain ed the 
status report by Indonesia on progress in the implementation of the DSB's recommendations in the 
case on measures concerning the importation of chicken meat and chicken products.  
1.33.   The representative of Indonesia  said that Indonesia submit ted its status report in accordance 
with Article  21.6 of the DSU.  He said that 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 (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. Regarding the DSB's recommendations and rulings in this dispute, Minist ry of 
Agriculture Regulation No. 23/2018 stipulate d that certification processes for veterinary and halal 
were conducted separately. Hence, halal certification was no longer a  prerequisite for veterinary 
certification nor vice versa. In this regard, any application received by Indonesia's  relevant 
veterinary and halal authorities w ould be processed once all requirements were fulfilled in a complete 
and correct manner.  Indonesia  stood  ready to continue to consult  and remain ed in constant 
communication with Brazil with respect to any matter relating thereto.  
1.34.   The representative of  Brazil  said that Brazil wished to thank Indonesia for its second status 
report in this dispute . Brazil had highlighted some concerns regarding Indonesia 's implementation 
of the DSB 's recommendations and rulings  in this dispute at the previous DSB meeting. T hese 
concerns had not been addressed in Indonesia's  latest status report . She said that Brazil would WT/DSB/M/420  
 
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  appreciate if Indonesia could address the following issues at the present meeting  or in its next status 
report: (i) the " positive list requirement "; (ii) the distribution plan  requirement; and 
(iii) amendments to the terms of import licences. Regard ing these issues, Brazil wished  to note the 
following . Indonesia 's positive list requirement had  not cease d to exist.  Indonesia had chose n to 
maintain the list and to include some of the HS codes of chicken meat and chicken products  that 
had been the  subjec t of Brazil 's complaint. However, o ne HS code had yet to be included in 
Indonesia 's positive list.  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.  Moreover, 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 and sanctions on importers in the event that these 
requirements were not strictly observed continued to apply.  Brazil note d that any measure taken by 
Indones ia was to no avail if Indonesia fail ed to approve Brazil 's veterinary health certificate for the 
importation of chicken meat and chicken products.  Indonesia's delay prior to the approval of such 
certificate had already been considered undue by the P anel in this dispute.  Recently, at Indonesia 's 
request  and as a gesture of good will , Brazil had sent responses to a new questionnaire on veterinary 
issues , even though Brazil wished to reiterate its understanding , as noted by the Panel, that there 
had never been outstanding information that had prevented Indonesia from moving forward with 
the approval procedure of Brazil's  veterinary health certificate. Brazil , once again,  asked Indonesia 
to include in its future status reports the status of the analys is and approval of this certificate . The 
Panel Report ha d been adopted, time was passing and full implementation had yet to be seen. Brazil 
remain ed ready to work with Indonesia with respect to any aspect of this dispute . 
1.35.   The DSB took note of the statement s and agree d to revert to this matter at its 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.1)  
1.36.   The Chairperson  drew attention to document WT/DS488/12 /Add.1 , 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.  
1.37.   The representative of the  United  States  said that t he United States had provided a status 
report in this dispute on 18 October 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 t o address 
the recommendations of the DSB.  
1.38.   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 US implementati on of the DSB's recommendations and rulings in this dispute.  Korea wa s 
concerned that no specific action to implement the rulings and recommendations of the DSB had 
been taken.  Korea strongly request ed that the U nited States resolve the uncertainty surrounding 
implementation without delay, and that it eventually bring its measures into conformity with the 
covered agreements  within the reasonable period of time , which w ould expire on 12 January 2019.   
1.39.   The DSB took note  of the statements and agree d to revert to this matter at its next regular 
meeting.  
2  UNITED  STATES – CONTINUED D UMPING AND SUBSIDY O FFSET 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.  WT/DSB/M/420  
 
- 9 - 
 
  2.2.  The representative of the European  Union  said that t he 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 . 
2.3.  The representative of Chile said that  Chile was grateful to the EU for its statement made  under  
this Agenda item.  
2.4.  The representative of Brazil  said that as an original party to this dispute, Brazil 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 that 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 Brazil ian 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.  
2.5.  The representative of Canada  said that Canada wished to thank the EU for having placed this 
item on the Agenda of the DSB. Canada expressed concern at  the way in which the United States , 
at the 26 September 2018 DSB meeting , characteriz ed Canada's statement made at the 27 August 
2018 DSB meeting . Canada clarified that its statement's main purpose was to signal , in line with the 
EU's view,  its disagreement with the US statement that it had fully implemented the DSB's 
recommendations in this dispute.  Canada therefore support ed the EU's decision to place thi s item 
on the Agenda of DSB meetings in order to keep this dispute under the surveillance of the DSB. 
Canada also clarified that its statement made at the 27 August 2018 DSB meeting had no bearing 
on whether a responding Member  should provide status report s when it alleged having complied 
with the DSB's recommendations.  
2.6.  The representative of the United  States  said that as the United States had noted at previous 
DSB meetings, the Deficit Reduction Act – which included a provision 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 said that it  recalled , furthermore,  that the EU had 
acknowledged 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 report s in this matter, as the United  States had 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 whet her the complaining 
party disagreed about compliance. The practice of Members confirm ed this widespread 
understanding of Article 21.6 of the DSU as no status report was submitted by any Member in any 
dispute this month, or for previous DSB meetings, where the responding Member ha d claimed 
compliance and the complaining Member disagree d. The EU had explained at the previous DSB 
meeting  under this item that, in its view, the issue of compliance "remain s 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) . The EU' s attempt to draw a 
distinction where a compliance proceeding ha d been initiated under Article 21.5 of the DSU fell short, 
and ha d no basis in the text of Article 21.6  of the DSU.  The EU ha d claimed compliance, and the 
United States disagree d. Based on the position that the EU  had taken , the EU had to  file a status 
report for the "EC – Large Civil Aircraft" dispute (DS316) . Given the EU's failure to provide a status 
report in that dispute  again this month , the United States failed to see how the EU's behaviour was 
consistent wi th 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 th is dispute that it had 
implemented the DSB's recommendations and rulings. If the EU dis agreed, ther e would simpl y 
appear to be a disagreement between the parties to this dispute about the situation of compliance.  
2.7.  The representative of the European  Union  said that in relation to the US assertions regarding  
"EC – Large Civil Aircraft" dispute (DS316) , the European Union noted that the United States had WT/DSB/M/420  
 
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  placed an item related to this dispute on the Agenda of the present meeting.  The EU would therefore 
respond under that Agenda item. In relation to the US assertion that the EU ha d failed to provide 
status reports and that no other Member ha d provided status reports recently, he said that the EU 
had provided status reports for all relevant disputes  that involved 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 (Indonesia)" (DS480) dispute.   
2.8.  The DSB took note of the statements.  
3  EUROPEAN  COMMUNITIES AND CERT AIN MEMBER STATES – MEASURES AFFECTING 
TRADE IN LARGE CIVIL  AIRCRAFT:  IMPLEMENTATION OF T HE RECOMMENDATIONS 
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 present 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 report 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. The United States said that as it  had noted at 
the DSB meeting of 2 6 September  2018, 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". 
The EU had argued that where the EU did not agree with another Member's "assertion that it ha s 
implemented the DSB recommendations and rulings", "the issue remain s 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 vi ew, 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 promoted. The EU's purported rationale was that it need not 
provide a status report because it was pursuing a second compliance panel under Article  21.5 of 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 understood that a responding party had 
no obligation under Article  21.6 of the DSU to continue to supply 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 welcome the opportunity that the United States was affording 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 in previous DSB 
meetings, there was a difference between the "EC – Large Civil Aircraft" dispute (DS316) and the 
"US — Offset Act (Byrd Amendment)" (DS217 , DS234 ) dispute s. In the "US — Offset Act (Byrd 
Amendment)" (DS217 , DS234 ) dispute s, the dispute s had been adjudicate d and there were no 
further compliance proceedings pending. He said that under Article  21.6 of the DSU, the issue of 
implementation shall remain on the DSB's Agenda until the issue was resolved. In the "US — Offset 
Act (Byrd Amendment)" (DS217 , DS234 ) disp utes, the EU could 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 purposes of Article 21.6 of the DSU. As to the "EC – Large Civil 
Aircraft" dis pute (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 contained in 
document WT/DS316/34 and tabled at the DSB meeting of 28  May 2018. He said that with  respect 
to the measures included in that communication, the United  States had expressed the view that the 
EU had not yet fully complied with the recommendations of the DSB. In response  to this US view , 
on 29  May 2018, the EU had requested consultations wi th the United States under Articles  4 
and 21.5 of the DSU, and, after failure of the latter, had requested the establishment of a compliance 
panel. The compliance panel had been established by the DSB on 27  August  2018. He said that 
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. The EU would be very concerned with WT/DSB/M/420  
 
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  a reading of Article  21.6 of the DSU which would require the implementing Membe r to provide status 
reports regarding implementation while litigation on this issue was ongoing.  
3.4.  The DSB took note of the statements.  
4  STATEMENT BY THE UNI TED STATES CONCERNING TH E ISSUANCE OF ADVISO RY 
OPINIONS ON ISSUES N OT NECESSARY TO RESO LVE A DISPUTE  
4.1.  The Chairperson  said that t his item was on the Agenda of the present meeting at the request 
of the United  States . She then  invite d the representative of the United States to speak.  
4.2.  The representative of the United  States  said that t he United States had requested this Agenda 
item to draw Members ' attention to an important systemic issue with significant implications for the 
operation of the dispute settlement system: the issuance by WTO panels and the Appellate Body of 
findings not necessary to resolve a dispute, including statements or interpretations that were not 
necessary or even on issues not presented in a dispute. These were often referred to as "advisory 
opinions ", which were commonly defined as "a non -binding statement on a point of law given by [ an 
adjudicator] before a case is tried or with resp ect to a hypothetical situation ".4 The United States 
had long been concerned with the issuance by WTO adjudicators of such advisory opinions. Such 
advisory opinions often appear ed to be an attempt by a pan el or the Appellate Body to "make law " 
rather than resolve a particular dispute. They were contrary to core principles enshrined in the text 
of the WTO Agreement5 and the Dispute Settlement Understanding6, which set out distinct roles for 
WTO Members, on the one hand, and WTO adjudicators, on the other. Advisory opinions also r an 
directly counter to the specific mandate Members ha d agreed for WTO adjudicators, and therefore 
breach ed WTO rules. Through its statement made at the present meeting , the United S tates again 
attempt ed to facilitate a broader discussion among Members on whether Members  underst ood and 
respect ed the rules that they  had written and agreed to. To facilitate this discussion, in this 
statement the United States  would highlight several asp ects of this issue for Members. First, the 
United States w ould highlight the relevant text of the WTO Agreement and DSU that ma de clear that 
the purpose of the dispute settlement system was not to produce interpretations or to "make law " 
in the abstract, b ut rather to help Members resolve a specific dispute. Accordingly, the text of the 
DSU specifically empower ed a WTO panel to make findings that w ould assist the DSB in making a 
recommendation to a Member to bring a WTO -inconsistent measure into conformity with WTO rules 
– but not to make other findings, statements, or interpretations. Second, the United States would 
draw Members ' attention to the dispute settlement rules and procedures of the GATT, from which 
the relevant provisions of the DSU had been  drawn. The GATT  dispute settlement language was 
substantially the same, and there was no question that the GATT  did not provide for advisory 
opinions. Third, the United States would draw attention to the fact that Members ha d not given 
panels or the Appellate Body the power to give "advisory opinions, " and this was significant in 
contrast with what parties ha d agreed for some other international tribunals. Fourth, the United 
States would  draw Members ' attention to troubling instances of advisory opinions issued  by the 
Appellate Body and would note that some Members ha d recognized and criticized any such ap proach 
to this important issue. Fifth, the United States would  conclude by explaining the serious 
consequences for the WTO dispute settlement system of the fai lure of panels and the Appellate Body 
to only make those findings necessary to resolve a dispute.   
4.3.  With regard to the view that the purpose of WTO dispute settlement was to resolve trade 
disputes, not make law , the United States said  that Members had established the DSB to administer 
the WTO dispute settlement system in accordance with the DSU.7 The dispute settlement system, 
which was but one component of the larger multilateral trading system, played an important, but 
focused role. The D SU defined the purpose of the dispute settlement system. In Article 3.7 of the 
DSU, Members had agreed that: "[t]he aim of the dispute settlement mechanism is to secure a 
positive solution to a dispute ". Thus, the aim of the dispute settlement system was not to produce 
interpretations or "make law " in the abstract. And as the United States would discuss further, within 
this focused role, WTO panels were charged with a specific task – assisting the DSB in discharging 
its responsibilities under the DSU – and the Appellate Body was similarly charged with assisting the 
                                                
4 See, e.g., Oxford Dictionaries, "advisory opinion " 
(https://en.oxforddictionaries.com/definition/advisory_opinion).  
5 Marrakesh Agreement Establishing the World Trade Organization ( "WTO Agreement "). 
6 Understanding on Rules and Procedures Governing the Settlement of Disputes ( "DSU"). 
7 DSU Art. 2.1.  WT/DSB/M/420  
 
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  DSB (albeit in an even more limited, focused capacity). In contrast to the focused role of dispute 
settlement "to secure a positive solution to the dispute ", WTO Members had created a mechanism 
to provide interpretations of the WTO agreements in the abstract. In Article IX:2 of the WTO 
Agreement, WTO Members had reserved for themselves acting in the Ministerial Conference or 
General Council "the exclusive authority to adopt interpretations " of the WTO agreements. In case 
this had not been clear enough, the DSU expressly provided that the dispute settlement mechanism 
was "without prejudice to the rights of Members to seek authoritative interpretation " of the WTO 
agreements through that process under the WTO Agreement.8 To achieve the focused "aim of the 
dispute settlement mechanism … to secure a positive solution to a dispute"9, Members had 
established in the DSU particular processes for resolving disputes promptly, including panels, and 
the Appellate  Body where appropriate, assisting the DSB for this purpose.   
4.4.  The United States said that where a dispute between Members arose, the dispute settlement 
process typically began with a request for consultations submitted in accordance with Article 4 of 
the D SU.  As Members were aware, the request for consultations had to include an "identification of 
the measures at issue and an indication of the legal basis for the complaint ".10 Even at this early 
stage, Members were required to identify the measures at issue , and not simply request 
consultations concerning an abstract interpretative legal issue.  This was reinforced by Article 3.3 of 
the DSU, which made clear that WTO dispute settlement involved "situations in which a Member 
considers that any benefits accrui ng to it directly or indirectly under the covered agreements are 
being impaired by m easures taken by another Member ". If consultations failed to resolve a dispute, 
a Member could then submit a request to the DSB, in which the Member asked the DSB to establ ish 
a panel.11 In that request, the Member was required to "identify the specific measures at issue and 
provide a brief summary of the legal basis of the complaint sufficient  to present the problem 
clearly ".12  So here again, the DSU was not concerned with hypothetical measures or abstract legal 
questions.  A complainant "shall … identify " with specificity the measures at issue and "shall … 
provide " the legal basis for the complaint.  A panel request would not co mply with the DSU if it 
merely requested the DSB to establish a panel to provide an interpretation of a covered agreement 
in the abstract or make a finding on a hypothetical measure.   
4.5.  The United States said that the DSU had established standard terms of re ference for a panel 
in Article 7.  The DSB had charged the panel with two tasks: to "examine … the matter referred to 
the DSB " in the panel request and "to make such findings as will assist the DSB in making the 
recommendations " provided for in the DSU.13 And Article 19.1 of the DSU was, again, explicit in 
what that recommendation was: "[w]here a panel or the Appellate Body concludes that a measure 
is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the 
measure into c onformity with that agreement ".  Thus, a finding that a challenged measure was 
inconsistent with a WTO rule set out in a covered agreement necessarily led to a recommendation 
to bring the measure into compliance with that agreement. It wa s through such a f inding of 
WTO-inconsistency and through such a recommendation "to bring the measure into conformity " that 
panels and the Appellate Body carried out the terms of reference "to make such findings as will 
assist the DSB in making the recommendations " provided  for in the covered agreements.14 Members 
had reinforced in Article 11 of the DSU that the "function of panels is to assist the DSB in discharging 
its responsibilities under [the DSU] ".15 Members had reinforced that a panel assisted the DSB 
through the tasks  set out in the panel 's terms o f reference.  In particular,  Article 11 of the DSU 
stated that: "a panel should make an objective assessment of the matter ... and make such other 
findings as will assist the DSB in making the recommendations or in giving the rulings provided for 
                                                
8 Article 3.9 of the DSU provided that "[t]he provisions of this Understanding are without prejudice to 
the rights of Members to seek authoritative interpre tation of provisions of a covered agreement through 
decision -making under the WTO Agreement or a covered agreement which is a Plurilateral Trade Agreement ". 
9 See also, Article 3.3 of the DSU (which made clear that the prompt settlement of "situations in w hich a 
Member considers that any benefits accruing to it directly or indirectly under the covered agreements are being 
impaired by measures taken by another Member " was essential to the effective functioning of the WTO.); 
Article 3.4  of the DSU (which pro vided that that the DSB 's recommendations and rulings "shall be aimed at 
achieving a satisfactory settlement of the matter in accordance with the rights and obligations under this 
Understanding and under the covered agreements "). 
10 DSU Art. 4.4.  
11 DSU Art.  6. 
12 DSU Art 6.2.  
13 DSU Art. 7.1.  
14 DSU Art. 7.1.  
15 DSU Art. 11.  WT/DSB/M/420  
 
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  in the covered agreements ".16 Thus, the text of the DSU had established tha t the DSB tasked a panel 
only with making those findings as would assist the DSB in making the recommendation provided 
for in the covered agreements – that was , to bring a measure found to be inconsistent with a WTO 
agreement into conformity with that agre ement.   
4.6.  The United States said that the inverse was equally clear: it would not be within a panel 's terms 
of reference under Article 7.1 of the DSU, nor would it be consistent with a panel 's function under 
Article 11 of the DSU, to make findings that could  not "assist the DSB in making [its] 
recommendations " to bring a WTO -inconsistent measure into conformity with WTO rules.  Put more 
succinctly, a panel would act contrary to these articles by issuing advisory opinions, or findings on 
issues not necessary t o resolve a dispute. The same applied to the Appellate Body.  The Appellate 
Body's task under the DSU was limited to assisting the DSB in discharging its functions under the 
DSU.  Under Article 17.6  of the DSU , an appeal was "limited to issues of law cover ed in the panel 
report and legal interpretations developed by the panel ".  Further, under Article 17.13 of the DSU, 
the Appellate Body was only authorized to "uphold, modify or reverse the legal findings and 
conclusions of the panel ". Since a panel 's funct ion under Article 11 of the DSU was "to assist the 
DSB in discharging its responsibilities " under the DSU, the Appellate Body, in reviewing a panel 's 
legal conclusion or interpretation, was thus also assisting the DSB in discharging its responsibilities 
to find whether the responding Member 's measure was consistent with WTO rules.17 And so just as 
a panel could not ignore its terms of reference as established by the DSB to make findings that could 
not "assist the DSB in making [its] recommendations ", so too the Appellate Body was not authorized 
to go beyond the panel 's terms of reference to issue findings on issues unnecessary to resolve a 
dispute.  
4.7.  The United States said that at this point, it was worth noting two provisions of the DSU that 
some had misunders tood as suggesting panels and the Appellate Body could render advisory 
opinions.  The first was the reference to "clarify[ing] the existing provisions of the covered 
agreements " in Article 3.2 of the DSU.  Article 3.2 of the DSU provide d in relevant part: "[t]he 
dispute settlement system of the WTO is a central element in providing security and predictability 
to the multilateral trading system.  The Members recognize that it serves to preserve the rights and 
obligations of Members under the covered agreement s, and to clarify the existing provisions of those 
agreements in accordance with customary rules of interpretation of public international law ". The 
"it" in the second sentence of Article 3.2 of the DSU referred to the subject of the first sentence, 
"the d ispute settlement system of the WTO ".  In other words, Members had recognized that the 
dispute settlement system of the WTO  – as set out in the DSU – serve d to preserve the rights and 
obligations of Members under the covered agreements, and the dispute set tlement system of the 
WTO – as set out in the DSU – serve d to clarify the existing provisions of those agreements. As the 
United States had shown , the dispute settlement system – as set out in the DSU – charge d panels 
and the Appellate Body with making suc h findings as w ould assist the DSB in making the 
recommendation set out in the DSU, and through that function it serve d to preserve Members ' rights 
and obligations and to clarify existing provisions. Furthermore, this text of Article 3.2 of the DSU 
was neither a directive to panels or the Appellate Body nor an authorization for them.  There was no 
"shall" or "may" in this text.  Instead, it was a statement of what Members ha d agreed flow ed from 
the system when it operate d in accordance with the provisions a greed by Members.  
4.8.  The United States said that the second provision that was sometimes misread was Article 17.12 
of the DSU, which provide d that: "[t]he Appellate Body shall address each of the issues raised in 
accordance with paragraph 6 during the appellate proceeding ". The ordinary meaning of "address " 
is to "[t]hink about and begin to deal with (an issue or problem) ".18  In other words,  to address an 
issue was not necessarily to resolve that issue.  This term c ould also be contrasted with the 
immed iate context of Article 17.13  of the DSU , which refer red to a panel 's "legal findings and 
conclusions ".  In other words , Article 17.12 of the DSU did not direct the Appellate Body to "make 
legal findings and conclusions " on each of the issues raised in the  appeal. Similarly, it was useful to 
note that Article 7.2 of the DSU also state d that "panels shall address the relevant provisions in any 
covered agreement or agreements cite d by the parties to the dispute ". As Members well kn ew, 
                                                
16 DSU Art. 11.  
17 Where a panel or the Appellate Body concluded that a measure was inconsistent with a covered 
agreement, Article 19.1 of the DSU provided in mandatory terms that "it shall  recommend that the Member 
concerned bring the measure into conformity with that agreement ".  
18 Oxford Dictionaries, "address " (third definition) 
(https://en.oxforddictionaries.com/definition/address).  WT/DSB/M/420  
 
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  panels and the Appellate  Body ha d often "addressed " an issue through the exercise of judicial 
economy.  As the Appellate Body had stated more than 20 years ago in endorsing judicial economy:  
"[g]iven the explicit aim of dispute settlement that permeates the DSU [to settle disput es], we do 
not consider that Article 3.2 of the DSU is meant to encourage either panels or the Appellate Body 
to 'make law ' by clarifying existing provisions of the WTO Agreement outside the context of resolving 
a particular dispute.  A panel need only add ress those claims which must be addressed in order to 
resolve the matter in issue in the dispute ".19 If a finding would not assist the DSB in making a 
recommendation to bring a WTO -inconsistent measure into conformity with a covered agreement, 
the only prop er way to "address " such an issue would be to refrain from issuing a finding.  Thus, it 
would be incorrect to read the word "address " as permitting the Appellate Body or a panel to make 
findings on issues that would not assist the DSB in discharging its responsibilities. Neither Article 3.2 
nor Article 17.12  of the DSU , then, provide d any authority to give advisory opinions.  
4.9.  With regard  to the view that advisory opinions were not permitted under the GATT  dispute 
settlement r ules and procedures , the United States note d that the lack of authority for panels and 
the Appellate Body to issue advisory opinions in WTO dispute settlement was con sistent with the 
lack of such authority under the GATT  dispute settlement rules and procedures. In fact, the text of 
several provisions of the DSU were carried over directly from the GATT procedures as reflected, for 
instance, in the Decision of 12 April 1 989 on Improvements to the GATT Dispute Settlement Rules 
and Procedures  (or "Montreal Rules ").  There had been no question that GATT dispute settlement 
had not authorize d advisory opinions. Provisions of the GATT dispute settlement rules and 
procedures – provisions nearly identical to analogous provisions of the DSU – confirm ed that GATT 
panels functioned to assist the Contracting Parties in making the recommendations or in giving the 
rulings provided for in the GATT. For example, paragraph F(a) of the Mont real Rules had required 
panel requests to "indicate whether consultations were held, and provide a brief summary of the 
factual and legal basis of the complaint sufficient  to present the problem clearly ".  Just like Article 
6.2 of the DSU , this demonstrate d that GATT dispute settlement had not been concerned with 
hypothetical measures or abstract legal questions. Paragraph F(b)(1) of the Montreal Rules had 
provided that GATT panels would have following standard terms of reference: " [t]o examine, in the 
light of the relevant GATT provisions, the matter referred to the CONTRACTING PARTIES by (name 
of contracting party) in document L/... and to make such findings as will assist the CONTRACTING 
PARTIES in making the recommendations or in giving the rulings provided for in Article XXIII:2 ". 
4.10.   The United States said that j ust like Article 7.1  of the DSU , this text had made explicit that 
GATT panels had functioned to assist the Contracting Parties in making the recommendations to 
bring a measure found inconsistent with the GATT into conformity with those rules.  The terms of 
reference of GATT panels, like WTO panels today, had not empower ed them to make i nterpretations 
in the abstract. In addition, paragraph A1 of the Montreal Rules provide d the following: "Contracting 
parties recognize that the dispute settlement system of GATT serves to preserve the rights and 
obligations of contracting parties under the  General Agreement and to clarify the existing provisions 
of the General Agreement. It is a central element in providing security and predictability to the 
multilateral trading system ". This was identical, in relevant part, to the language in Article 3.2 of the 
DSU on the WTO dispute settlement system preserving the rights and obligations of Members and 
serving to clarify the existing provisions of the covered agreements.  The use of "clarify " in this text, 
like its use in Article 3.2  of the DSU , had not au thorize d GATT panels to provide interpretations in 
the abstract on issues not necessary to resolve the particular dispute.  Rather, it had simply been a 
statement of what Contracting Parties had agreed flowed from the GATT dispute settlement system 
when it  operated in accordance with the agreed provisions.  
4.11.   The United States said that the fact t hat much of the DSU text track ed the GATT dispute 
settlement rules and procedures was not surprising as the DSU, as reflected in the provisions that 
the United States  had examined, had carried forward the understanding that the "aim of the 
CONTRACTING PARTIES [in dispute settlement] has always been to secure a positive solution to the 
dispute ".20 By choosing the same structure and words, the Contracting Parties had chosen to 
maintain an approach to dispute settlement u nder the GATT through the DSU. That approach under 
the GATT had never been understood as giving adjudicators the authority to make interpretations 
in the abstract that were not necessary to resolve a dispute.  That same language when carried 
                                                
19 US – Wool Shirts and Blouses (AB), WT/DS33/AB/R, at 19.  
20 Annex: Agreed Description of the Customary Practice of the GATT in the Field of Dispute Settlement, 
L/4907, para. 4.  WT/DSB/M/420  
 
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  forward into the DSU also d id not provide panels and the Appellate Body any authority to give 
advisory opinions.  
4.12.   With regard to the view that Members ha d not given panels or the Appell ate Body the power 
to give "advisory " opinions , a power that  some other i nternational tribunals ha d, the United States 
said that the  text of the DSU and WTO Agreement mad e clear that panels and the Appellate Body 
did not have the authority to issue advisor y opinions.  This st ood in contrast to the authority explicitly 
provided to some other international tribunals in their respective legal texts. For example, the United 
Nations Charter explicitly provide d that the International Court of Justice could  be req uested to 
provide "an advisory opinion on any legal question ".21 And the Statute of the International Court of 
Justice, which was annexed to and an integral part of the United Nations Charter22, explicitly provide d 
that the International Court of Justice could  provide an advisory opinion:  "[t]he Court may give an 
advisory opinion on any legal question at the request of whatever body may be authorized by or in 
accordance with the Charter of the United Nations to make such a request" .23 The Statute of the 
International Tribunal for the Law of the Sea set out in Articles 15924 and 19125, that the Seabed 
Disputes Chamber of the International Tribunal for the Law of the Sea could  give "an advisory opinion 
on the conformity with th[e] Convention of a proposal " or on  other legal questions. The explicit 
authority to provide advisory opinions c ould also be found in the constitutive texts of certain other 
international adjudicative fora, including the European Court of Human Rights26, the African Court 
on Human and People s' Rights27, and the Inter -American Court of Human Rights.28 Unlike the 
agreement governing these other tribunals, however, the DSU contain ed no provision authorizing a 
panel or the Appellate Body to provide an advisory opinion.  To the contrary, as the United States 
had shown , the DSU set out specific terms of reference for the panel and Appellate Body, charging 
them to make such findings as will assist the DSB in making the recommendation to bring a WTO -
inconsistent measure into conformity with a covere d agreement.  A WTO adjudicator 's findings were 
therefore limited to those findings necessary to resolve a given dispute.  
4.13.   With regard to t he Appellate Body 's issuance of advisory opinions , the United States said that 
Members had agreed that the DSB would assign a specific function to  a panel and the 
Appellate  Body – to make such finding as will assist the DSB in making a recommendation to bring 
                                                
21 See UN Charter, Art.96(a) ("[t] he General Assembly or the Security Council may request the 
International Court of Justice to give an a dvisory opinion on any lega l question") and Art. 96(b) ("[o] ther 
organs of the United Nations and specialized agencies, which may at any time be so authorized by the General 
Assembly, may also request advisory opinions of the Court on legal questions arisi ng within the scope of their 
activities "). 
22 UN Charter, Art. 92 ( "[t]he International Court of Justice shall be the principal judicial organ of the 
United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute o f 
the Permanent Court of International Justice and forms an integral part of the present Charter "). 
23 Statute of the International Court of Justice, Art.65.  
24 Statute of the International Tribunal for the Law of the Sea, Art. 159(10) ( "[u]pon a written req uest 
addressed to the President and sponsored by at least one fourth of the members of the Authority for an advisory 
opinion on the conformity with this Convention of a proposal before the Assembly on any matter, the Assembly 
shall request the Seabed Dispu tes Chamber of the International Tribunal for the Law of the Sea to give an 
advisory opinion thereon "). 
25 Statute of the International Tribunal for the Law of the Sea, Art. 191 ( "[t]he Seabed Disputes Chamber 
shall give advisory opinions at the request of the Assembly or the Council on legal questions arising within the 
scope of their activities "). 
26 European Convention on Human Rights, Convention for the Protection of Human Rights and 
Fundamental Freedoms, Art. 31 ( "[t]he Grand Chamber shall  … (c) consider  requests for advisory opinions 
submitted under Article 47 ") and Art. 47 ( "[t]he Court may, at the request of the Committee of Ministers, give 
advisory opinions on legal questions concerning the interpretation of the Convention and the Protocols thereto "). 
27 Protocol to the African Charter on Human and Peoples ' Rights on the Establishment of an African Court 
on Human and Peoples ' Rights, Art. 4(1) ( "[a]t the request of a Member State of the OAU, the OAU, any of its 
organs, or any African organization recognized by the OAU, the Court may provide an opinion on any legal matter 
relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the 
opinion is not related to a matter being examined by the Commission "). 
28 American Convention on Human Rights, Art. 64 ( "1. [t]he member states of the Organization may 
consult the Court regarding the interpretation of this Convention or of other treaties concerning the protection 
of human rights in the American states. With in their spheres of competence, the organs listed in Chapter X of 
the Charter of the Organization of American States, as amended by the Protocol of Buenos Aires, may in like 
manner consult the Court.  2. The Court, at the request of a member state of the O rganization, may provide that 
state with opinions regarding the compatibility of any of its domestic laws with the aforesaid international 
instruments "); Statute of the Inter-American Court, Art. 2 ("[t] he Court shall exercise adjudicatory and advisory 
jurisdiction: 1. Its adjudicatory jurisdiction shall be governed by the provisions of Articles 61, 62 and 63 of the 
Convention, and  2. Its advisory jurisdiction shall be governed by the provisions of Article 64 of the Convention "). WT/DSB/M/420  
 
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  a WTO -inconsistent measure into conformity with a covered agreement.  Early on, the Appellate 
Body had appeared t o recognize this important but limited role for WTO adjudicators. In an early 
dispute , "US – Wool Shirts and Blouses ", the Appellate Body had framed the work of the Appellate 
Body and panels in the following manner: " [g]iven the explicit aim of dispute set tlement that 
permeates the DSU, we do not consider that Article 3.2 of the DSU is meant to encourage either 
panels or the Appellate Body to 'make law ' by clarifying existing provisions of the WTO Agreement 
outside the context of resolving a particular disp ute.  A panel need only address those claims which 
must be addressed in order to resolve the matter in issue in the dispute.29 We note, furthermore, 
that Article IX of the WTO Agreement provides that the Ministerial Conference and the General 
Council have t he 'exclusive authority ' to adopt interpretations of the WTO Agreement and th e 
Multilateral Trade Agreements ".30  
4.14.   The United States said that t he Appellate Body had appropriately recognized the distinction 
between the role of Members – with the exclusive authority to adopt interpretations of WTO 
agreements – and the role of a panel and the Appellate Body to assist the DSB in resolving a 
particular dispute. Si milarly, in "US – Customs Bonding ", the Appellate Body had observed that "it 
is certainly not the task of either panels or the Appellate Body to amend the DSU or to adopt 
interpretations within the meaning of Article IX:2 of the WTO Agreement.  Only WTO Members hav e 
the authority to amend the DSU or to adopt such interpretations ".31 Over time, however, the 
Appellate Body ha d departed from the limited role agreed to by Members.  Beyond assisting in 
resolving the dispute before it, the Appellate Body ha d improperly ste pped into the role of the 
Membership: increasingly, the Appellate Body first wade d into issues not necessary to resolve the 
dispute, and then circulate d interpretations of the WTO Agreements that it consider ed binding on 
Members. As Members kn ew, the Unite d States ha d been raising concerns about advisory opinions 
by WTO adjudicators, and increasingly by the Appellate Body, for over 16 years.32  
4.15.   The United States said that d espite the complexity that such advisory opinions c ould add to 
a report, and the need to understand a dispute in some detail in order to discern when an adjudicator 
had given an advisory opinion, the United States  found numerous instances when Members ha d 
detected an advisory opinion by the Appellate Body and had spoken out against those ef forts.  The 
range of Members speaking out on this issue was informative.  For example, in "Canada – Continued 
Suspension " and "United States – Continued Suspension ", 10 WTO Members had spoke n in the DSB 
to question the authority of the Appellate Body to "recommend " that the DSB request that certain 
Members initiate further dispute settlement proceedings.  The so -called "recommendation " had 
served no purpose in assisting the DSB to resolve the dispute before it and had been  directly contrary 
to Article 19.1  of the DSU.  The United States and other Members had been  critical of the Appellate 
Body's approach:  For example, Canada had stated: "[s]ince no finding of inconsistency existed, the 
Appellate Body 's recommendation … could not constitute a recommendation within the meaning of 
Article 19.1 of the DSU and was, therefore, without legal consequence ".33 Argentina had recalled 
that: "the authority to make recommendations in Article 19.1 was contingent on the prior conclusion 
that a measure was inconsistent with a  covered agreement ".  That being the case, Argentina had 
asked : "[i]n the case at issue, there was no finding of inconsistency, so on what grounds could the 
Appellate Body recommend, let alone suggest, to the parties what action they should take with 
respe ct to their dispute? "34 Chile had "regretted the inclusion of that recommendation, which in 
Chile's view did not help to settle this dispute ".35 Australia36, Costa Rica37, Ecuador38, Korea39, 
Japan40 and Mexico41 had all made similar statements questioning the authority of the Appellate 
Body to make a recommendation absent any finding of inconsistency with respect to the measures 
at issue in these disputes.   
                                                
29 US – Wool Shirts and Blo uses (AB), page 19.  
30 US – Wool Shirts and Blouses (AB), pages 19 -20. 
31 US – Customs Bonding (AB), para. 92.  
32 See 2018 President 's Trade Policy Agenda, at 26 -27. 
33 Minutes of DSB Meeting , 14 November 2008 (WT/DSB/M/258), para. 43.  
34 Minutes of DSB Meeting , 14 November 2008  (WT/DSB/M/258), para. 25.  
35 Minutes of DSB Meeting , 14 November 2008  (WT/DSB/M/258), para. 31.  
36 Minutes of DSB Meeting , 14 November 2008  (WT/DSB/M/258), para. 27.  
37 See Minutes of DSB Meeting , 14 November 2008  (WT/DSB/M/258), para. 33.  
38 See Minutes of DSB Meeting , 14 November 2008  (WT/DSB/M/258), para. 15.  
39 See Minutes of DSB Meeting , 14 November 2008  (WT/DSB/M/258), para. 28.  
40 See Minutes of DSB Meeting , 14 November 2008  (WT/DSB/M/258), paras. 23 -24. 
41 Minutes of DSB Meeting , 14 November 2008  (WT/DSB/M/258), para. 17.  WT/DSB/M/420  
 
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  4.16.   The United States said that i n these same disputes, the Appellate Body had also strayed from 
the issues necessary to resolve the dispute to opine on the application of the DSU in the post -
suspension stage of a dispute.  Even where some Members had agreed in principle with the Appellate 
Body's statements, the United  States and other Members had criticized the Appellate Body 's 
overreach . Chile, after recalling  the ongoing work by Members on the very issue of post -retaliation 
in the context of negotiations to amend the DSU, had observed that "the Appellate Body was 
imposing its own authority over and above the work which was being carried out by Members, and 
which was solely their responsibility, and by determining which procedures should, in its opinion, be 
followed in such circumstances, the Appellate Body was crea ting new rights and obligations for all 
WTO Members.  Furthermore, in setting out a new procedure, it had established new courses of 
action with practical application or implications that had not yet been evaluated, as was the case 
when each part y initiate d its own proceedings ".42 Argentina had agreed, stating that "the evaluation 
of the appropriateness of the different options offered by the DSU was not only the responsibility of 
Members, but required the type of analysis which, in particular circumstances,  nobody co uld perform 
better than Members ".43  
4.17.   The United States said that i n another instance, "China – Publications and Audiovisual 
Products ", the Appellate Body had made findings on the applicability of Article XX (a) of the 
GATT  1994 to a claim under Chi na's Protocol of Accession.  The Appellate Body had made this finding 
despite the fact that both parties had indicated during the appeal that it was not necessary to resolve 
this issue, and the panel had appropriately avoided resolving it.  In its statement  to the DSB, Japan 
had stressed that "there would be a risk that the complex issue of law, the novel one in particular, 
could be prematurely, and possibly improperly, decided by [an] adjudicative body of appellate 
jurisdiction in situations where the issue  was not well presented by the parties and not fully explored 
or developed by lower tribunals ".  Japan had concluded that "the resolution of the availability of 
Article XX defense should have been saved for another day when the resolution of the issue was 
absolutely necessary and the issue would be more properly presented and fully explored ".44 A further 
example was the Appellate Body 's report in "Argentina – Financial Services ".  This appeal had raised 
a number of  issues under the GATS provisions on national treatment, most -favoured-nation 
treatment, and the prudential exception.  The Appellate Body had resolved the appeal on the firs t, 
threshold issue of "likeness ". The United States had addressed this report exte nsively in its 
statement to the DSB.  Members might  recall that, despite having resolv ed the appeal on the initial 
threshold issue, the Appellate Body had gone on  to consider issues that the Appellate Body itself 
had considered not necessary to resolve the  dispute.  As the report state d: "[o]ur reversal of these 
findings [on likeness] means that the Panel 's findings on ' treatment no less favourable ' are moot 
because they were based on the Panel 's findings that the relevant serv ices and service suppliers are  
'like'. Moreover, as a consequence of our reversal of the Panel's 'likeness ' findings, there remains no 
finding of inconsistency with the GATS. This, in turn, renders moot the Panel's analysis … pursuant 
to Article XIV(c) of the GATS and … paragraph 2(a) of the GATS Annex on Financial Services" .45 
However, after having clarified that all of the Panel 's findings other than "likeness " had been 
rendered moot, the Appellate Body had stated one paragraph later that: "[s]everal of the issues 
raised in Panama 's appeal have implications for the interpretat ion of provisions of the GATS. With 
these considerations in mind, we turn to address the is sues raised in Panama 's appeals ".46 The 
Appellate Body had then undert aken an analysis – 46 pages – that had been  in the n ature of obiter 
dicta.  In other words, the Appellate Body had acknowledged that ( i) it had already considered all 
issues necessary to help resolve the dispute, yet ( ii) it would nevertheless address additional 
interpretive issues under the GATS.  "Indonesia  – Import Licensing Regimes ", adopted last year, 
offered another example.  The Appellate Body had made a threshold finding concerning Article XI:1 
of the GATT 1994 that alone had resolved the dispute.  Indeed, the United States had explained in 
its submiss ion that the Appellate Body 's analysis should have ended there if it had made this 
threshold finding.  Several third parties had also suggested the Appellate Body should address only 
those issues necessary to resolve the dispute.  Yet, the report had gone on to substantively address 
other claims, the outcome of which would have had no effect on the recommendations in the dispute, 
as the Appellate Body itself had acknowledged.47 Most striking had been  a GATT  1994 Article XX 
claim appealed by Indonesia, where the Appellate Body had expressly agreed with the United States 
                                                
42 Minutes of DSB Meeting , 14 November 2008  (WT/DSB/M/258), para. 30.  
43 Minutes of DSB Meeting , 14 November 2008  (WT/DSB/M/258), para. 26.  
44 Minutes of DSB Meeting , 19 January 2010 (WT/DSB/M/278), paras. 83-84. 
45 Argentina – Financial Services (AB), para. 6.83. 
46 Argentina – Financial Services (AB), para. 6.84. 
47 Indonesia – Import Licensing Regimes (AB), paras. 5.63, 5.102 -103. WT/DSB/M/420  
 
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  that addressing the claim was not necessary.48 The Appellate Body  report nonetheless discusse d the 
legal standard under GATT  1994 Article XX at som e length and then, without analysis or further 
explanation, declare d the Panel 's findings moot and of no legal effect.49 The preceding discussion of 
GATT  1994 Article  XX had therefore been unnecessary to resolve the dispute.  
4.18.   Lastly, the United States  noted the appellate  report in "EU – PET (Pakistan) ". The EU had 
appealed the Panel's issuance of findings in this dispute.  The EU had argued that : "WTO dispute 
settlement proceedings are intended to secure a positive solution to a dispute and should not serve 
as a vehicle to obtain 'advisory opinions ' on legal matters ".50 The EU had observed that : "[t]here 
are other procedures that allow Members to obt ain an authoritative interpretation of particular 
provisions of a covered agreement ".51 The EU  had argued at length that it was not the role of the 
dispute settlement system to offer advisory opinions not necessary to resolve a dispute.  Yet, the 
Appellate Body had done so  anyway.  The United States had agreed with the EU that the approach 
of the panel and the Appellate Body raise d serious concerns.  Pakistan had made clear that it did 
not seek a recommendation on the EU measure that had expired in the course  of the panel 
proceedings.  This fact alone confirm ed that there had been  no dispute between the parties.  In that 
sense, Pakistan had been  seeking an advisory opinion regarding the application of the Agreement 
on Subsidies and Countervailing Measures (SCM  Agreement) in the future.  As Pakistan had 
requested findings with respect to the interpretation and application of the SCM Agreement , but no 
recommendation on the challenged EU measure, the panel and the Appellate Body should have found 
Pakistan 's request to be outside the terms of reference.  There could be  no finding that would have 
assist ed the DSB in making the recommendation because Pakistan had requested no 
recommendation be made. As with the other reports discussed, the reports in the "EU – PET 
(Pakistan) " dispute had not been necessary to resolve a dispute, but rather – as the EU had rightly 
pointed out in its appeal – an exercise in making advisory opinions.  These examples were just a few 
of the instances in which the Appellate Body ha d taken it upon itself to offer interpretations not 
necessary to the resolution of a dispute. Under the guise of providing clarifications to assist Members 
in future disputes, the Appellate Body 's conduct contravene d the limited role agreed to by Members: 
to rev iew issues of law and legal interpretation covered in a panel report that w ould assist the DSB 
in finding whether the responding Member 's measure was inconsistent with a covered agreement.  
4.19.   In conclusion, the United States said that the text of the DSU and WTO Agreement ma de clear 
that panels and the Appellate Body were only to issue those findings necessary to resolve a dispute, 
and specifically, findings that w ould assist the DSB in making a recommendation to bring a measure 
found to be inconsistent with a  WTO agreement into conformity with that agreement.  Members had 
reserved for themselves the exclusive authority to issue authoritative interpretations of the WTO 
agreements, and they agreed they would adopt such interpretations in the Ministerial Conferen ce or 
the General Council, not the DSB. The United States ha d long expressed concerns with the issuance 
of advisory opinions by WTO adjudicators, and increasingly by the Appellate Body, and the United 
States had  reviewed certain reports in which other Memb ers recognized those concerns. This was 
another example of a failure by the Appellate Body to follow the rules agreed by Members in the 
WTO agreements.  Several immediate consequences flow ed from this problem.  To list a few:  as 
with other systemic problem s identified by the United States, advisory opinions w ould add time to a 
proceeding and move d the system further away from the principle of prompt settlement reflected in 
Article 3  of the DSU ; advisory opinions add ed to the complexity of a report and add ed to the burdens 
of Members in future disputes when considering past reports bearing on a legal issue; advisory 
opinions risk ed adding to or diminishing a Member 's rights and obligations under the covered 
agreements, inconsistent with Articles 3.2 and 19.2  of the DSU ; and by opining on issues that were 
not before it, and on which the parties m ight not have engaged fully, or for which relevant facts 
might not have been fully developed, an advisory opinion risk ed not taking into account all the facets 
of an is sue. Ultimately, the failure of a WTO adjudicator to follow the rules set out in the DSU 
governing their role and function risk ed further eroding support for the dispute settlement system 
and the WTO as a whole. The United States  looked forward to engaging  with Members on this 
important issue.  
4.20.   The representative of the European  Union  said that the EU  had listened carefully to the 
US statement. The EU did not wish to engage at the present meeting into a detailed discussion o f 
                                                
48 Indonesia – Import Licensing Regimes (AB), paras. 5.102 -103. 
49 Indonesia – Import Li censing Regimes (AB) , paras. 5.91 -101, 5.103.  
50 EU – PET (Pakistan) (AB), para. 5.31. 
51 EU – PET (Pakistan) (AB), para. 5.31.  WT/DSB/M/420  
 
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  each and every dispute mentioned  by the US. The EU  would  limit itself to the following general 
observations. At the outset, the EU  noted that the U nited States had referred to "advisory opinions" 
or "obiter dicta" being issued by the Appellate Body. The EU  did not necessarily agree with this 
characteri zation of particular Appellate Body findings, but did not think it wa s useful to enter into a 
discussion o f the correctness of such characterizations . What the EU  underst ood to be the essence 
of the US position was that the Appellate Body ha d made findings unnecessary to resolve a dispute 
in a manner that was not consistent with its mandate under the DSU. On this point, the EU  wished 
to recall that Article 17.6 of the DSU had delineate d the scope of appeals as follows: "[a]n appeal 
shall be l imited to issues of law covered in the panel report and legal interpretation developed by 
the panel". Provided that an appeal concern ed such issues of law, it was the duty of the Appellate 
Body to "address" these issues. This was explicitly provided for by  Article 17.12 of the DSU which  
read as follows : "[t]he Appellate Body shall address each of the issues raised in accordance with 
[Article 17.6 of the DSU] during the appellate proceedings". The basic aim of dispute settlement in 
the WTO was to settle disp utes.52 Article 3.7 of the DSU explicitly state d that : "[t]he aim of the 
dispute settlement mechanism is to secure a  positive solution to a dispute ". Article 3.4 of the DSU 
stipulate d that : "[r]ecommendations or rulings made by the DSB shall be aimed at ach ieving a 
satisfactory settlement of the matter in accordance with the rights and obligations under this 
Understanding a nd under the covered agreements ". Article 3.3 of the DSU explain ed that the aim of 
the WTO's dispute settlement system was the "prompt se ttlement of situations in which a Member 
considers that any benefits accruing to it directly or indirectly under the covered agreements are 
being impaired by measures taken by another Member". However, this d id not mean that the panels 
or the Appellate Bod y could not interpret WTO provisions or clarify their meaning. Article 3.2 of the 
DSU explicitly state d that the Members "recogniz e" that the dispute settlement system "serves to 
preserve the rights and obligations of Members under the covered agreements, and to clarify the 
existing provisions of those agreements in accordance with customary rules of interpretation of 
public international law". As the Appellate Body ha d held repeatedly, given the explicit aim of dispute 
settlement that permeate d the DSU, Ar ticle 3.2 of the DSU was not meant to encourage either panels 
or the Appellate Body to "make law" by clarifying existing provisions of the WTO Agreement outside 
the context of resolving a particular dispute.53 Regarding the Appellate Body's duty, enshrined in 
Article 17.12 of the DSU, the EU  noted that there m ight be situations where it would not be necessary 
for the Appellate Body to examine each of the issues raised on appeal in order to contribute to the 
resolution of the dispute. This was why, taking int o account the overall objectives of the DSU, in 
certain cases the Appellate Body ha d declined to make specific findings regarding an issue raised on 
appeal, and had "addressed" this issue only to the extent necessary to ascertain that – in the light 
of the  other rulings under a different claim that resolve d the dispute – there had been  no need to 
rule on that particular additional issue in question. The EU  wished  to stress that, in the exercise of 
its adjudicative powers, the Appellate Body ha d a margin of discretion to decide on how to "address" 
each of the issues on appeal, and in particular whether or not to exercise judi cial economy on certain 
issues .54 Having made these general observations, the EU wished to reiterate its readiness to discuss 
possible im provements in the operation of the dispute settlement system.   
4.21.   The representative of Brazil  said that Brazil wished to thank the United States for the  inclusion 
of this item on the A genda. Brazil consider ed that the DSB was the ri ght forum for these discus sions. 
Brazil would review the US statement carefully. Th is discussion could also take place in a more 
structured dedicated session, with previous distribution of documents. As Brazil had stated at the 
previous DSB meeting , the framing of ideas and opinion s on the basis of solid rational discourse was 
fundamental for any fruitful collaboration among interested Members. Another possibility, already 
raised by Brazil in the past, was to introduce regular occasions of dialogue between Members and 
the Appellate Body, in an open and transparent way,  which would be disconnected from the moment 
of adoption of reports. It b ore reminding, however, that the discussion of this topic at the present 
meeting , as well as of topics brought by the United States  at prior DSB m eetings , could not serve 
as an argument to block the  functioning of the system. No Member was entitled to make the system 
hostage of its own concerns, justified or not: the WTO framework provided other options  for 
discussin g and solving conc rete problems.  
4.22.   With regard  to the issue of so -called "advisory opinions ", Brazil note d, at the outset , that, 
unlike previous issues like Rule 15  of the Working Procedures for Appellate Review  or the 90 -day 
                                                
52 "US – Wool Shirts and Blouses ", Appellate Body Report, p. 19 . 
53 "US – Wool Shirts and Blouses ", Appellate Body Report, p.19 ; "US – Upland Cotton , para. 747; see also 
paras . 510-511. 
54 See separate opinion in DS456, para 5.160 . WT/DSB/M/420  
 
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  period, this topic required  a great deal of pr ior delimitat ion of legal and jurisdictional concepts. 
According to  Article 3.2  of the DSU, the function of the dispute settlement system was to "clarify the 
existing provisions of those agreements in accordance with customary rules of interpretation of 
public international law". Within this mandate, WTO adjudicators ha d to interpret the terms and 
provisions of the covered agreements, and give them legal meaning. They also ha d to listen to and 
analyse competing interpretations brought by the parties about the same provisions , and to decide 
which interpretation  best capture d a provision's essence, according to the agreed rules of 
interpretation of the Vienna Convention  on the Law of Treaties . These principles direct ed panels and 
the Appellate Body to look at the text, context, object and purpose of each provision. Legal 
interpretations developed and adopted in dispute settlement proceedings  were immersed in a textual 
and contextual analysis. They m ight be concise or long, crystal -clear or sometimes seem ed 
convoluted. The decisio ns appl ied to the case at hand, but due to the principle of fairness, according 
to which similar cases and situations had to be  decided similarly, the se decisions  were also relevant 
for other cases and were treated as such  by the parties  who constantly br ought  them to the attention 
of the panelists and of the  Appellate Body. The findings, and the legal reasonings that under pinned 
and led to them, were distinct from purely advisory exercises. As the Appellate Body itself had once 
explained: "[w]e observe th at the concept of "advisory opinion" has a special meaning in the context 
of international adjudication. A number of international courts and tribunals, including the 
International Court of Justice and the European Court of Justice, provide in their statut es or rules 
for the provision of such opinions upon the request of States or of certain authorized bodies ".55 The 
idea that the Appellate Body engage d in advisory opinions was, conceptually, similar to the 
allegations made about obiter dicta. As obiter dict a were a feature characteristic of common law 
systems and were not in and of themselves  typical of civil law systems – in which  in general judges  
were either concise or wordy –, at least the expression  advisory opinion was more neutral. Advisory 
opinions were thus not foreseen in the DSU. However,  to qualify part of a report as an "advisory 
opinion ", without further agreed common parameters, could also amount to effectively restricting 
unilaterally the jurisdiction of panels and the Appellate Body. It could  unjustifiably restrict what 
would be the scope of the matter before them and could prevent them from exercising the functions 
assigned to them by the DSU. Without a pr ior, thorough debate about what the jurisdictional function 
in the WTO dispute settlemen t system  mean t, or should mean, the present debate risk ed simply 
revealing, at its core, divergent views about the nature of that system.  
4.23.   Brazil said that , on a more specific level, what the United States ha d repeatedly characterize d 
as "advisory opinions " in its statement  made at the present meeting  while commenting on specific 
excerpts  of Appellate Body reports could also be, depending on the case at hand and on the 
interpretation, simply a necessary element to decide a legal claim. Brazil referred to  a concrete 
example. In the "US — Offset Act (Byrd Amendment)" (DS217 , DS234 ) dispute s, "[t]he United 
States maintain(ed) that the Panel erred by rendering an advisory opinion on a measure that was 
not before it. Specifically, the United States appeal(ed) the  Panel's statement that '[e]ven if CDSOA 
offset payments were funded directly from the US Treasury, and in an amount unrelated to collected 
anti-dumping duties, we would still be required to reach the conclusion … that offset payments may 
be made only in s ituations presenting the constituent elements of dumping. ' The United States 
asserts that there was no measure before the Panel where payments were funded directly from the 
United States Treasury and, therefore, there was no basis for the Panel to opine on  what its findings 
would be if such a measure were presented to it. The United States emphasizes that this finding 
should be reversed because the Panel has no authority to make findings on a matter that is not 
before it ".56 The Appellate Body had disagreed "with the United States that, in making this 
statement, the Panel was making a finding on a matter that was outside the Panel's terms of 
reference. In (its) view, the Panel was simply making an observation to make it abundantly clear 
that its finding was i n no way based on the fact that offset payments  are funded from collected 
anti-dumping duties. Therefore, we dismiss the United States' claim that the Panel issued an 
"advisory opinion" exceeding its terms of reference ".57 Several third parties had agreed w ith the 
Appellate Body. Australia had submitted that the Panel had not exceed ed its terms of reference by 
clarifying the scope of its finding; Canada had taken  the view that the Panel had not render ed an 
advisory opinion. Instead, it had made a statement in support of its overall argument concerning 
the operation of the CDSOA. According to Canada, the Panel had not arrive d at a legal conclusion in 
respect of the payment of duties from the United States Treasury itself, and so could not hav e been 
in legal error. Nor had the Panel offer ed an "advisory opinion" on that issue . Japan and Chile had 
                                                
55 Appellate Body Report, "US — Offset Act (Byrd Amendment)" (DS217 , DS234 ), footnote to para.214 . 
56 Appellate Body Report, "US — Offset Act (Byrd Amendment)"  (DS217 , DS234 ), para.37 . 
57 Appellate Body Report, "US — Offset Act (Byrd Amendment)" (DS217 , DS234 ), para. 214 . WT/DSB/M/420  
 
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  submitted that the Panel's observations contained in paragraph 7.22 of the Panel Report were not, 
as the United States claim ed, an "advisory opinion : "[t]hey point out that the Panel was merely 
clarifying the factual basis for its finding that the offset payments under the CDSOA can be made 
only in situations where the constituent el ements of dumping are present ".58 
4.24.   Brazil said that it recognize d the rel evance of the discussion introduced by the United States 
at the present meeting,  and that it agreed  that all Members would benefit from more streamlined, 
clear and concise decisions, as long as t hey contain ed the necessary legal density to underpin all 
findings. More to the point, Brazil also consider ed that the parameters set out in the DSU, especially 
in Article 3.2, that mandate d the clarification of  provisions while not adding to or diminishing rights 
and obligations  of Members , as well as the whole of Article 17, which delimitate d the scope of 
appellate review, were sufficient to guide Members  through this debate. Brazil said that it had o ne 
final remark about the novel interpretation Members  had just heard about the scope of Article IX:2 
of the Marrake sh Agreement. For Brazil, interpretations under this provision serve d a different 
purpose. O nce taken by all Members , such interpretations  were, from that moment on ward, binding  
for all Members, whereas adopted decisions taken by panels or the Appellate Body were binding  only 
in the case at hand. In general, legal provisions generate d regular effects until there was a dispute 
about the meaning of their wording . At th at moment, pa rties argue d conflicting or competing 
interpretations to panels  and the Appellate body, which had  to decide which one was the most 
adequate . Given the al most 600 hundred disputes  brought at the WTO, it could not be assumed that 
Members would have to use Ar ticle IX:2  of the Marrakesh Agreement  that many times for the 
purpose of  render ing authoritative interpretations.  
4.25.   The representative of Japan  said that Japan wished to thank the United States for its 
statement made at the present meeting . Japan consider ed that it was not the role of WTO 
adjudicators to make "advisory opinion s" which were not necessary  to resolve specific disputes. In 
addition to specific provisions of the DSU such as Article s 6, 7 11 and 17, Article 3  of the DSU 
(General Provisions ) provide s strong context. For example, Article 3.4 of the DSU state d that: 
"[r]ecommendations and rulings made by the DSB shall be aimed at achieving a satisfactory 
settlement of the matter in accordance with the rights and obligations under this Understanding a nd 
under the covered agreements ". Article 3.7 of the DSU also state d that:  "[t]he aim of the dispute 
settlement mechanism is to secure a  positive solution to a dispute ".  WTO adjudicators had to  follow 
and be guided by these principles when issuing their rep orts so as to enable the DSB to make 
recommendations and rulings properly. In short, the role of WTO adjudicators  was no more than the 
one prescribed  in the DSU. In this respect, Japan said that it share d the concern expressed by the 
United States.  Member s might disagree as to whether a WTO adjudicator 's finding in a particular 
case was to be considered as an advisory opinion. This m ight be so because each Member ha d a 
different opinion on what constitute d an "advisory opinion " depending on its position in a case or on 
other factors. Rather than engaging in such discussions, Members m ight want to have a more 
constructive dialogue that would lead to a positive solution of the issue raised here. In this respect, 
Japan s aw merit in discussing possible solution s to address the issue at hand, such as clarifying the 
scope of review by WTO adjudicators in a more explicit manner, or by encouraging disputing parties 
to exercise self -restraint when selecting the issues to be appealed. Japan look ed forward to engaging 
in a solution -oriented dialogue with other Members regarding this matter.   
4.26.   The representative of China  said that China wished to thank  the United States  for plac ing this 
item on the Agenda of th e present  meeting. This issue was very important because it delineate d the 
boundaries of the mandates of p anels and the Appellate Body in relation to  the scope of the ir rulings 
and re commendations. China was , therefore , willing to share some of its views on this matter. First, 
China  viewed this issue as related to the compliance of panels and the Appellate Body with their 
respective mandates under the DSU. Article 7.2 of the DSU prescribe d that "panels shall address the 
relevant provisions in any covered agreement or agreements cited by the parties to the dispute ". 
Article 17.12 of the DSU  clearly  provide d that "the Appellate Body shall address each of the issues 
raised in accordance with paragraph 6 during the appellate proceeding ". Therefore, under the current 
DSU, and as had been required by the negotiators, the A ppellate Body was under the obligation to 
address each of the legal issues raised by the parties in an appellate proceeding. There was no 
reason to criticize p anels or the Appellate Body for so -called unnecessary rulings provided that they 
follow ed the req uirements of Article s 7.2 and 17.12 of the DSU . The parties m ight have different 
views on whether a particular ruling was necessary or not to resolve a dispute. It seem ed that the 
way that  the United States read those provisions might render them futile. Of course, the Appellate 
                                                
58 Appellate Body Report, "US — Offset Act (Byrd Amendment)" (DS217 , DS234 ), para. 111 . WT/DSB/M/420  
 
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  Body had to address only the issues appealed by the parties to the dispute, and should refrain from 
making findings on the issues that neither party had appealed.  China  noted that the U nited States 
had cited a number of cas es to sustain its arguments. China m ight have had similar concerns in 
some cases. However, China still need ed to further analy se the merits of its arguments, and was 
not in a position to discuss in detail the specific  reports mentioned by the United States. To better 
address this issue, Members could provide more guidance to p anels and the Appellate Body through 
appropriate instruments so that they were mandated to only review issues raised by parties that 
were necessary for the settlement of a given  disput e. Nevertheless, any further guidance or 
clarification on this issue had to  not adversely impact the independence of the Appellate Body. China 
was open to discussions on possible improvements to the operation of the dispute settlement system 
in the future.  However, these discussions  could not be used to block the launch of the AB  selection 
process es. China welcome d the fact that the United States  had placed  this item  on the Agenda of 
the present  meeting and was ready to exchange views with other Members on possible solution s. At 
the same time, China also urge d the United States  to lift its illegal and unreasonable blockage of the 
AB selection process es which had to be launch ed immediately.  
4.27.   The representative of Canada  said that Canada wished to thank  the U nited States for its 
engagement on the topic of the issuance of opinions by WTO adjudicators on issues not necessary 
to resolve a dispute. Canada  stood ready and willing to work with all Members to seek to achieve a 
common understanding on the spirit of the DSU in this regard. Canada wished  to take this 
opportunity to comment on this important topic. Canada believed  that WTO adjudicators were rightly 
tasked in the DSU with clarifying the existing provisions of the covered agreements in accordance 
with customa ry rules of interpretation of public international law. The evolution of and increasing 
reliance on the WTO dispute settlement system mean t that disputes were ever more complex. The 
outcome of a dispute often hinge d on the interpretation of a provision tha t might have been drafted 
with a view to reaching agreement amongst Members during the Uruguay Round negotiations, rather 
than with a view to providing exact legal clarity. Therefore, in many instances, adjudicators were 
tasked with resolving dispute s wher e the crux of the debate wa s an imprecise legal provision. This 
placed them in the difficult position of having to interpret such provisions while keeping in mind the 
strict requirement set out in the DSU to not add to or diminish the rights and obligation s provided 
in the covered agreements. This wa s not an easy task. In this context, Canada believed  that it would 
be appropriate to clarify that the primary objective of the dispute settlement system was the 
settlement of specific disputes , and that WTO adju dicators should only be permitted to make findings 
that were necessary to achieve this objective. Such an approach would provide useful focus for WTO 
adjudicators. Limiting the extent to which adjudicators ma de findings on peripheral issues in a 
specific c ase would also have the positive effect of facilitating their ability to meet DSU timelines for 
the issuance of panel and Appellate Body reports. Canada wished to reiterate its appreciation for US 
engagement on this issue. Canada wished to  encourage all Members to join this discussion , and was 
commit ted to continu e support ing a solution -oriented discussion on this and other DS issues.   
4.28.   The representative of New Zealand  said that New Zealand agree d that the Appellate Body 
should focus on the  issues necessary for resolution of the dispute immediately before it. This would 
assist in delivering prompt resolution of disputes in line with the 90 -day period. New Zealand  
therefore s aw an important linkage between this issue and addressing undue dela ys in the WTO 
dispute settlement system. For this reason, New Zealand support ed Members exchanging views on 
this issue and making proposals for possible reform. New Zealand did , however, recognise that this 
was not a simple issue given the importance of cl arity with respect to WTO rights and obligations. 
New Zealand  noted also that the explicit right to make authoritative interpretations rest ed with the 
Membership pursuant to the Marrakesh Agreement. New Zealand  was ready to continue to engage 
with other Me mbers on the issues raised.   
4.29.   The representative of Chile said that  Chile was sympathetic to  the US position. Once more, 
the United States ha d substantiated in great detail certain aspects of the dispute settlement 
mechanism that were not functioning properly . Chile also wish ed to express gratitude for  the very 
clear suggestions for solutions . Chile  certainly support ed such a solution -oriented approach . 
Concretely, Chile noted  that there exist ed a possibility that the rights and obligations of Members 
could be affected  if Articles 3.2 and 19 .2 of the DSU we re not applied properly. Rendering what is 
referred to as "advisory opinions",  mainly on the part of the Appellate Body , could also impact the 
timelines that Members had agreed upon for the preparatio n of pan el and Appellate Body reports.  WT/DSB/M/420  
 
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  4.30.   The representative of India said that India wished to thank the United States for including 
this important issue on the Agenda of the present  meeting. India had  noted with interest the 
observations made by the United  States, the EU, Brazil, China and other M embers on this issue. 
India st ood ready to engage in a constructive and solution -oriented dialogue on this important issue. 
However, India wished to reiterate that these discussions should not serve as a pretext to  impair 
the work of the Appellate Body and should be de -linked from a quick resolution of the Appellate 
Body impasse.   
4.31.   The DSB took note of the statements.  
5  PAKISTAN – ANTI -DUMP ING MEASURES ON BIAX IALLY ORIENTED POLYP ROPYLENE 
FILM FROM THE UNITED  ARAB EMIRA TES 
A.  Request for the establishment of a panel by the United Arab Emirates (WT/DS538/2)  
5.1.  The Chairperson  recall ed that the DSB had considered this matter at  its meeting on 
28 May 2018, and had agreed to revert to it. The Chairperson  drew attention to the communication 
from the United Arab Emirates contained in document WT/DS538/2  and invite d the representative 
of the United Arab Emirates to speak.  
5.2.  The representative of the United Arab Emirates  (UAE) said that on 15 May 2018 , the UAE had 
requested the estab lishment of a p anel to examine  the dispute concerning  anti-dumping measures 
on biaxially oriented polypropylene film ("BOPP Film")  from the UAE (DS538). Pakistan had not 
agree d to the establishment of a panel at the 28 May 2018  DSB meeting.  Thereafter, bilateral 
discussions had continued between Pakistan and the UAE , but had failed to resolve th is dispute. The 
UAE ha d therefore placed  its request for the establishment of a panel on the Agenda of the DSB for 
the second time. For the reasons set out  in its request for establishment of a panel, the UAE was 
concerned  that the anti -dumping measures imposed and maintained by Pakistan on BOPP Film from 
the UAE were inconsistent with Pakistan's obligations under the GATT 1994 and the Anti -Dumping 
Agreement. Accordingly, the UAE respectfully request ed, once again, that the DSB establish a panel 
to examine the matter set out in its request for establishment of a panel, with standard terms 
of reference.   
5.3.  The representative of Pakistan  said that  Pakistan regret ted the UAE's  decision to request for 
the second time the establishment of a panel  at the present meeting . Pakistan believed  that efforts 
to look into all possible alternatives to resolve this matter should continue  and be fully explored. 
Pakistan wished to reiterate its openness to continue the discussions through consultations with the 
UAE to find mutually convenient solutions in this dispute. Nevertheless, Pakistan st ood ready to 
defend its measures before the p anel.  
5.4.  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.  
5.5.  The representatives of Afghanistan , China , the European Union, Japan , the Russian Federation , 
the Kingdom of Saudi Arabia  and the United States reserve d their third -party rights to participate in 
the Panel's proceedings.  
6  KOREA – SUNSET REVIE W OF ANTI -DUMPING DU TIES ON STAINLESS ST EEL BARS  
A.  Request for the establishment of a panel by Japan (WT/DS553/2)  
6.1.  The Chairpe rson recall ed that the DSB had considered this matter at its m eeting on 
26 September 2018  and had agreed to revert to it. The Chairperson  drew attention to the 
communication from Japan contained in document WT/DS553/2  and invite d the representative of 
Japan to speak.  
6.2.  The representative of Japan  said that Japan w ould not repeat its posit ion and claims in this 
dispute at the present meeting, as the se were explained in detail in its panel request and in its 
statement made  at the 26 S eptembe r 2018 DSB meeting.  Briefly put , this case concern ed Korea's 
measures to continue the imposition of anti -dumping duties on imp orts of Stainless Steel Bars from 
Japan. Japan consider ed Korea's measures to be inconsistent with Korea's obligations und er the WT/DSB/M/420  
 
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  GATT 1994 and the Anti-Dumping Agreement . Japan's  first request for establishment of a panel had 
appeared as an item on the Agenda of the previous DSB meeting . As Japan  continue d to see the 
inconsistency  of Korea's measures , Japan , once again , reque sted, pursuant to Article 6 of the DSU, 
that a panel be established to examine the matter set out in its panel request , with standard terms 
of reference , in accordance with Article 7.1 of the DSU.   
6.3.  The representative of Korea  said that Korea regret ted that Japan had chose n at the present 
meeting  to place its request for establishment of a panel on the Agenda of the DSB for a second 
time. As Korea had stat ed at the previous  DSB meeting, Korea had determined , through an objective 
review of the matter , that it was highly likely that dumping and injury w ould recur if the duties were 
terminated, taking into account all the available evidence before it. Thus, based on this objective 
examination, Korea had reasonably concluded that it was necessary to maintain  the anti -dumping 
measures on stainless steel bars from Japan. Korea ha d continuously expressed its willingness to 
engage constructively with Japan on this matter. Korea ha d participated in good faith in the 
consultations relating to this matter . Korea had  also made itself available to provide any additional 
information that Japan would consider necessary.  In addition, at the previous  DSB meeting, Korea 
had already expressed its concern over certain procedural deficiencies contained in Japan 's request 
for establishment  of a panel . It was therefore regrettable that Japan ha d decided to  place a request 
for establishment of a panel at the present  meeting, which would lead to the establishment of a 
panel in accordance with Article 6.1 of the DSU. Korea w ould vigorously defend its WTO -consistent 
anti-dumping measure s before the p anel.  
6.4.  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.  
6.5.  The representatives of China , the European Union, India, Kazakhstan , the Russian Federation , 
Chinese Taipei  and the United States  reserve d their third -party rights to participate in the Panel's 
proceedings.  
7  RUSSIAN  FEDERATION – MEASURE S ON THE IMPORTATION  OF LIVE PIGS, PORK A ND 
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)  
7.1.  The Chairperson  drew attention to the communication from the European Un ion contained in 
document WT/DS475/21 . She then  invite d the representative of the European Union to speak.  
7.2.  The representative of the European  Union  said that t he EU ha d requested the establishment of 
a panel to assess the consistency with WTO rules of the measures taken by the Russian Federation 
to comply with the recommendations and rulings in this dispute . The EU regret ted the repeated 
failure by the Russian Federation  to open its market to pig products from the EU, despite a panel 
report, an Appellate Body report, a reasonable period of time to comply, and the EU 's openness in 
recent months to resolve the matter through consultations leading up to this request. In the light of 
these considerations, the EU said that it would appreciate if Russia could join the consensus so that 
the DSB could decide to establish a compliance panel at the present  meeting.   
7.3.  The representative of the Russian  Federation  said that Russia was disappointed by the E U's 
decision to request 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 would 
like to note that by virtue of the R ussia's communication of 8 December 2017 (WT/DS475/16) , 
Russia ha d informed the Membership and the DSB that all the DSB's rulings and recommendations 
in this dispute had been  implemented by Russia in full and within the reasonable period of time 
agreed by the parties to th is dispute. The Federal Service for Veterinary and Phytosanitary 
Surveillance had issued the Letter of 5 December 2017 No. FS -NV-7/26504 which had  brought into 
conformity all measures found to be inconsistent with the WTO obligations of Ru ssia in this dispute. 
Russia also note d that proceedings under Article 21.5 of the DSU  were limited to measures taken to 
comply with the DSB's recommendations and rulings. However, the EU in its request for 
establishment of a panel referred to certain measures of Russia which had not been "taken to 
comply " with the DSB's recommendations and rulings . Russia t hus believe d that there was no legal WT/DSB/M/420  
 
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  basis for the EU to request the establishment of the panel under Article 21.5 of the DSU . For the se 
reasons, Russia  was not in a position to agree to the establishment of a panel at the present meeting .  
7.4.  The DSB took note of the statements and agree d to revert to this matter.  
8  CHINA – CERTAIN MEAS URES CONCERNING THE PROTECTION OF INTELL ECTUAL 
PROPERTY RI GHTS  
A.  Request for the establishment of a panel by the United  States (WT/DS542/8)  
8.1.  The Chairperson  drew attention to the communication from the United States contained in 
document WT/DS542/8 . She then  invite d the representative of the United States to spe ak. 
8.2.  The representative of the United  States  said that t he United States recall ed that all Members, 
including China, ha d committed through the Agreement on Trade -Related Aspects of Intellectual 
Property Rights (TRIPS Agreement) to provide certain protection s for intellectual property rights, a 
core element of a free and fair international trading system.  Among those intellectual property 
rights were the commitments to protect exclusive rights of patent holders and to accord to the 
nationals of other Members  treatment no less favo urable than that the Member accords to its own 
nationals with regard to the protection of intellectual property. China had agreed to these 
commitments when it had acceded to the WTO.  However, for the past several years, the United 
States ha d repeatedly raised concerns about China 's policies relating to technology licensing that 
did not comport with China 's WTO commitments. China 's policies consistently s ought  to 
disadvantage foreign companies for the benefit of Chinese industry.  Th e 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 which China had 
committed when it had acceded to the WTO. Prior to initiating this dispute, the United States had 
attempted to resolve these issues with China bilaterally.  The United States and China had also held 
formal dispute settlement consultations in July  2018.  How ever, these efforts had failed to resolve 
US concerns. Accordingly, the United States request ed that the DSB establish a panel to examine 
the matter set out in its panel request , with standard terms of reference.   
8.3.  The representative of China  said that Chin a was disappointed that the U nited States  had 
decided to request establishment of a panel to examine the subject matter of th is dispute. The United 
States  had filed its request for c onsultations with China on 23 March 2018. China had held 
consultation s in good faith  with the United States  on 18 July 2018 and  had positively responded to 
its relevant questions. The US  accusations made at the present meeting  were meritless. They were  
founded on a deliberate misrepresentation of Chinese laws and practices, as w ell as on allegations 
from unidentifiable sources.  China was therefore not in a position to accept the establishment of a 
panel  at the present meeting . 
8.4.  The representative of Japan  said that Japan ha d been one of the major exporters of technology 
to China a nd ha d repeatedly raised its concerns with China's rules, regulations and other measures 
referred to in the US request for establishment of a panel. In particular, Japan believe d that the 
Chinese regulation on the administration of import and export of tec hnologies, one of the measures 
identified by the United States, seem ed to impair the ability of foreign intellectual property right 
holders to protect their intellectual property rights because this measure mandate d contractual 
terms in technology transfer  agreements between foreign and Chinese partners in a manner adverse 
to the interests of foreign partners. Japan thus share d the concerns of the United States regarding 
discriminatory licensing practices as well as regarding the lack of sufficient protecti on of intellectual 
property rights in China. Japan wishe d to emphasize the importance of a stronger protection of 
intellectual property rights and their effective enforcement.  
8.5.  The DSB took note of the statements and agree d to revert to this matter.  WT/DSB/M/420  
 
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  9  UNITED  STATES – CERTAIN MEA SURES ON STEEL AND A LUMINIUM PRODUCTS  
A.  Request for the establishment of a panel by China (WT/DS544/8)  
9.1.  The Chairperson  drew attention to the communication from China contained in document 
WT/DS544/8 . She then  invite d the representati ve of China to speak.  
9.2.  The representative of China  said that China had requested consultations with the U nited States 
in this dispute on 5 April 2018. Consultations had been  held on 19 July 2018. These consultations 
had generated very limited clarifications  to only a few issues between the parties, and had failed to 
resolve the dispute. China attache d great importance to resolving this dispute promptly, and 
therefore request ed establish ment of  a panel at the present meeting . On 23 March 2018, the United 
States had imposed 25 percent and 10 percent of additional import dut ies respectively on certain 
steel and alumin ium products, from all countries except a few select  Members, pursuant to Section 
232 of the US Trade Expansion Act of 1962. Subsequently, the U nited States had made a series of 
revisions to the original measures which include d adjusting the scope of the exemption s, introducing 
quota s on imports of steel products from select Members, and permitting exclusions of certain 
products. It appear ed to China that the measures at issue, in their content and substance, had been  
taken because the imports of steel and alumin ium products had been  deemed to be in such increased 
quantities and under such conditions as to cause or threaten injury to domestic  producers of the se 
products. And the suspension of the obligations , or the withdrawal or modification of the concessions 
by the measures at issue was intended to relieve such injury or threat and to ensure that the relevant 
domestic industries were econom ically viable. Therefore, the  measures at issue  were in essence 
safeguard measures. The measures at issue, under the guise of "national security ", were obviously 
and egregiously inconsistent with the relevant provisions of the Agreement on Safeguards and t he 
GATT 1994, as China had explained in document WT/DS544/8. Notably, besides China, there were 
six other Members who ha d also requested t he establish ment of  panels in respect of  disputes 
regarding  the same measures and based on similar legal consideration s at the present  meeting. 
China was of the view that there was a joint understanding among different Members that the 
measures at issue were inconsistent with the core principles of the covered agreements, including 
but not limited to MFN and schedules of concessions. China consider ed that the matter at issue ha d 
a significant systemic dimension for the  WTO. Members had to  faithfully fulfil their obligations and 
commitments under WTO agreements and had to  use or invoke the national security exception on a 
bona fide  basis. In addition, China believed  that to safeguard the security and predictability of the 
multilateral trading system, the DSB should be explicit ly entitled to establish a panel  to examine the 
measures at issue. Pursuant to Article 9.1 of the DSU, China request ed to establish a single panel 
to examine the complaints under Agenda item s 9 to 14 and 19 which were related to the 
same  matter.   
9.3.  The representative of the United  State s said that t he United States was not surprised that 
China ha d submit ted a panel request in this dispute.  China 's actions follow ed a pattern of using the 
WTO dispute settlement system as an instrument to promote its non -market economic policies. 
Those non -market policies and practices ha d been widely recognized by Members as leading to 
massive excess capacity and distortions of world markets.  Those non -market policies and practices 
were damaging the interests of market -oriented economies, their businesses and workers. China 's 
policies ha d created and maintained excess capa city in steel and aluminium  and undermine d the 
basic fairness of international trade. China 's non -market policies ha d also led to global conditions in 
which core US industries, which were vital to US national security, were not able to survive and 
invest f or the future on market -based terms. The President of the United States had determined 
that, under these conditions, imports of steel and aluminium  threaten ed to impair US national 
security. The United States  would not allow China 's Party -State to fatally undermine the US steel 
and aluminium  industries, on which the US military, and by extension global security, rel ied. The 
United States ha d given detailed explanations that the measures at issue were justified under Article 
XXI of t he GATT 1994.  In particular, the United States  had explained that these measures were 
necessary to address the threatened impairment that these imports of steel and aluminium  articles 
posed to US national security. Members were well aware that the steel a nd aluminium  sectors ha d 
been suffering under conditions of massive excess capacity.  China 's non -market economic system, 
driven by its industrial policy, ha d created new plant s and had maint ained  existing production 
contrary to market signals.  In th ese circumstance s, it was impossible for market economic actors 
in Members such as the United States, the European Union , Canada, Mexico, Norway, and others, 
to earn a sufficient return on the market to remain viable over the longer term. The United States 
was not the only Member with these concerns.  A joint proposal from the European Union, Japan, WT/DSB/M/420  
 
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  Mexico, and the United States warned that "overcapacity is a major cause of distortions to 
international trade.  [I]t has societal consequences which are a contribut ing factor to negative 
sentimen t regarding international trade ".59 China 's non -market economic system and the policies it 
generate d in the steel and aluminium  sectors were recognized as a global problem.  The September 
2018 Global Steel Forum Ministerial Report had stated:  "[e]xcess steelmaking capacity … depresses 
prices, undermines profitability, generates damaging trade distortions, jeopardizes the very 
existence of c ompanies and branches across the world, creates regional imbalances, undermines the 
fight against environmental challenges and dangerously destabilizes world trading relations ".60 This 
year, the OECD Ministerial Council Meeting had reached a similar conclus ion: "[s]evere excess 
capacity in key sectors such as steel and aluminium  are serious concerns for the proper functioning 
of international trade, the creation of innovative technologies and the sustainable growth of the 
global economy.  This is exacerbated  by government -financed and supported capacity expansion, 
unfair competitive conditions caused by large market -distorting subsidies and state -owned 
enterprises, forced technology transfer, and local content requirements and preferences ".61 The 
United States  had reached out to China, year after year, in our bilateral dialogues and had asked 
China to address the problem of excess capacity in the steel and aluminium  industries. The United 
States ha d discussed with China, year after year, the importance of compl eting the transition to a 
market economy and the commitments China had made to do so from the very first day that it had 
joined the World Trade Organization as a Member. Year after year, China had made promises it had 
not kep t, and year after year, China h ad avoided taking actions that would have addressed the crisis 
affecting global steel and aluminium .  The result was a staggering level of global overcapacity in 
steel and aluminium  that was directly attributable to China.  According to the OECD, between 2 000 
and 2016, China had added new steelmaking capacity equivalent to the combined steelmaking 
capacity of the rest of the world.  And since 2008 alone, China ha d added more than 500 million 
metric tons in new capacity – that was more than the combined capa city of the United States, the 
European Union and Japan. The aluminium  market ha d faced these same disturbing trends . In 2016, 
China had accounted for well over 50 percent of global aluminium  capacity, and since 2008, China 
had added 30 million metric tons in new capacity – that was more than the current combined capacity 
of the nine largest producers after China. For all these reasons, the United States had had no choice 
but to take action to address these crises.  The US measu res were national security actions, taken 
pursuant to a national security statute.  And the clear and unequivocal US position, maintained 
consistently for over 70 years, was that issues of national security were political in nature and were 
not matters app ropriate for adjudication in the WTO dispute settlement system. Some Members ha d 
expressed concerns that invoking the national security exception 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 dispute settlement 
system to prevent any action by any Member to address its unfair, trade -distorting policies. China 's 
choice to pursue dispute settlement against Me mbers defending their legitimate interests would 
make WTO rules an instrument for China to protect its non -market behavio ur, rather than promoting 
fair, market -based competition that improve d the welfare of all our citizens. As the United States 
had explai ned at the April 2018 DSB meeting, the WTO dispute settlement system should not be 
used as a defen ce for those Members that chose to adopt policies that c ould be shown to undermine 
the fairness and balance of the international trading system.  If this were the case, then the WTO 
and the international trading system w ould lose all credibility and support among Members'  citizens. 
For these reasons, the United States  did not agree to establishment of a panel at the 
present  meeting .  
9.4.  The representative of China  said that China had  noted the statement made by the United States 
at the present meeting , in particular  regarding the so -called non -market econom ic policies and 
overcapacity. However, these arguments had not been  included in the Reports of the US Department 
of the Commerce under  Section 232 of the US Trade Expansion Act of 1962 . It seem ed, once again , 
that the United States  had been shifting its arguments so that Section 232 could be used as a pretext 
for its protectionist measures. With respect to  the non -market economy accusations, China wished 
to refer to its statements made  in multiple fora including General Council meetings, DSB meetings, 
and recent SCM committee meetings. China  had rebutted these accusations many times as being 
without merit  and based on fabricated facts. It seem ed that the U nited States was simply  using 
these groundless arguments as a red herring for its notorious ly protection ist measures. China 
therefore  had no  interest in repeat ing statements made at previous DSB meetings . China had  made 
                                                
59 G/SCM/W/569.  
60 Global Steel Forum Ministerial Report, Sept. 20, 2018, p. 1.  
61 OECD 2018 Ministerial Council Meeting, Statement by the Chair of the Ministerial Council Meeting.  WT/DSB/M/420  
 
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  it very clear in its statement at the present meeting that it believed  that the US Section 232 measures 
were essen tially safeguard measures which were inconsistent with the GATT 1994 and the 
Agreement  on Safeguard s. These measures were adopt ed under the guise of national security. This 
was not merely  China 's opinion, but  an opinion shared by many other Members. As the A genda  of 
the present meeting had shown , there were six other panel requests with respect to the Section 232 
measures of the United States . China  firmly believe d that the prompt resolution of these disputes 
would enhance the rule s-based multilateral trading system and benefit the WTO as a whole.  
9.5.  The representative of Brazil  wished to make a  statement with regard  to items 9 -14 and  19 of 
the Agenda of the present meeting.  From a multilateral perspective, Brazil ha d, on many occasions , 
stressed its concern s about the systemic impacts  of restrictive measures taken under S ection 232  
of the US Trade Expansion Act of 1962 , and in particular  the consequences of an e xtensible  
interpretation of the concept of national security interests. Brazil's  concern s remain ed unchanged.   
9.6.  The DSB took note of the statements and agree d to revert to this matter.  
10  UNITED  STATES – CERTAIN MEA SURES ON S TEEL AND ALUMINIUM P RODUCTS  
A.  Request for the establishment of a panel by the European  Union (WT/DS548/14)  
10.1.   The Chairperson  drew attention to the communication from the European Union contained in 
document WT/DS548/14 . She then  invite d the representative of the European Union to speak.  
10.2.   The representative of the European  Union  said that t he EU w ould speak only under this 
Agenda item, and  would not take the floor under items 9 -14 and 19 that all concern ed the same US 
measures. This was in order to avoid repe tition, all the more at the present meeting  which had a 
historically long A genda for a DSB meeting. The statement that the EU would  make under this item  
should be taken to also appl y to those other items. The US measures taken under Section 232 of 
the US Trade Expansion Act of 1962  had prompted significant reactions over the last several months, 
both wit hin the United States and world -wide, from the industry, independent experts and foreign 
governments. The sectors of the US economy that were directly favou red by these protectionist 
measures  had understandably celebrated the redistribution of wealth to their benefit. All others, 
however, ha d been pointing out to what extent those benefits c ame at the expense of far greater 
losses for the rest of the US econo my and for the rest of the world. As Members  could see on the 
Agenda  of the present meeting , seven Members ha d submitted panel request s related to these US 
measures. No similarly high number of panel requests ha d ever been submitted on the same day 
and aga inst the same Member. This was just one sign among many suggesting what degree of 
objection the US measures were eliciting from the Membership. The large number of complainants 
demonstrate d broad opposition to the US measures, a general view that these mea sures were 
WTO-inconsistent and that it was fully appropriate to bring them to the attention of WTO 
adjudicators, in line with the DSU. The EU had expected to hear at the present meeting  from the 
United States that it consider ed these  complaints under the dispute settlement system  as misplaced . 
Hence, the EU would  summari ze in three short points why the U nited States in this respect was 
plainly wrong. First, the US additional duties were safeguard 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 suffer injury at the hands of competing imports. Second, Article XXI of the GATT  
1994, which was mentioned in the US response to the EU's  consultations request, was an affirmative 
defence and therefore c ould be, like other exceptions, an integral part of the legal evaluation of a 
domestic measure under the WTO Agreement. GATT  1994 Article XXI was in no way a provision 
limiting the ju risdiction of WTO panels and the Appellate Body, or of the Dispute Settlement Body. 
Therefore, there was no legitimate scope for doubt as to whether the DSU applie d to this dispute. 
GATT  1994 Article XXI was no magic wand whose mere invocation c ould sudden ly have made the 
DSU inapplicable. On substance, the EU firmly believe d that Article XXI of the GATT  1994 did not 
apply to measures such as the ones at hand. The EU believed  that it was a very dangerous 
proposition without any basis in that Article to sugg est that Members were allowed to invoke national 
security to protect the prosperity of a domestic industry. Third, if import restrictions such as the 
ones at issue here bec ame the subject of a dispute under the DSU for resolution in accordance with 
those p rocedures, this was good rather than bad for the multilateral trading system. The fact that 
seven panel requests had been  tabled at the present meeting  in relation to the same US measures 
and based on virtually identical legal claims also mean t procedurall y that Article 9 of the DSU applie d. 
Accordingly, the EU request ed the establishment of a single panel pursuant to Article 9.1 of the DSU, WT/DSB/M/420  
 
- 29 - 
 
  based on the seven panel requests submitt ed at the present meeting  concerning  the Section 232  US 
measures on steel and aluminium.   
10.3.   The representative of the United  States  said that t he United States was deeply disappointed 
that the European Union ha d submitted a panel request in this dispute.  This action was misdirected.  
It did not address the damage to the internati onal 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, 
the European Union was undermining the trading system by asking the WTO to do what it had never 
been intended 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 US measures taken under Section 232 of the US Trade Expansion Act of 1962  as 
necessary for the protection of its essential security interests, and that 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 had determined that these measures were necessary to address the threatened 
impairment that imports of steel and aluminium  product s pose d to US national security. In March 
2018, the United States had provided information to the Council on Trade in Goods in relation to the 
proclamations issued by the President of the United States pursuant to Section 232 of the Trade 
Expansion Act of 1962, as amen ded, consistent with the Decision Concerning Article XXI of the 
General Agreement taken by the GATT Council on 30 November 1982.62 In the US reply to the 
consultation requests challenging the 232 measures, the United States had clearly stated: "[i]ssues 
of national security are political matters not susceptible to review or capable of resolution by WTO 
dispute settlement ".63 The United States  therefore d id not understand the purpose of this request 
for panel establishment, seeking WTO findings that the United  States ha d breached certain WTO 
provisions. The WTO c ould not, consistent with GATT  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 GATT  Article X XI 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.64 Not surprisingly, this ha d also been the view of the European Union and its member 
States.  For instance, in 1949, with respect to a dispute with the then -Czechoslovakia, the view of 
the United States had been  that the claim alleging a breach of GATT  commitments could not be 
reviewe d consistent with GATT  Article XXI.  The United Kingdom had agreed, explaining that "since 
the question clearly concerned Article XXI, the United States action would seem to be justified 
because every country must have the last resort on questions relating  to its own security ".65 Indeed, 
in 1982, when certain European actions were before the GATT Council, this was precisely the position 
that the European Economic Community had taken .  The European Community  had stated that 
Article XXI had been  a reflection  of a Member 's "inherent rights ".  They 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 A greement 
... [since] every contracting party was – in the last resort – the judge of its exercise of these righ ts".66 
Lest anyone consider this had not been an official position, the European Community had then 
communicated the same views to the GATT Contracting Parties through a written communication.67 
At that same meeting, the United States  had supported the European Community 's position.  The 
United States had stated that the "GATT, by its own terms, left it to each contracting party to judge 
what wa s 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 
                                                
62 GATT Council, Decision Concerning Article XXI of the General Agreement – Decision of 30 November 
1982, L/5426 (2 December 1982).  
63 See e.g., WT/DS548/13.  
64 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).  
65 GATT/CP.3/SR.22, p. 3.  
66 C/M/157, p. 10.  
67 Communication to the Members of the GATT Council, L/5319/Rev.1 (noting "the European Community 
and its Member States, Australia and Canada, wish to state the following for the information of members of the 
Council … (b) they have taken these measures on the basis of their inherent rights of which Article XXI of the 
General Agreement is a reflection "). WT/DSB/M/420  
 
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  gave up the possibility of using any measures, other than  military, to  protect its security interests ".68 
It was striking that the US position on GATT Article XXI at the present meeting  was consistent with 
the US position in 1982, when European actions had been  challenged, and was consistent with the 
US position in 1949, when US actions had been  challenged.  It was only the European  position that 
had changed today.  But nothing  had changed in the text of GATT Article XXI.  The United States  
therefore s aw no principled basis for the EU position at the present meeting .  
10.4.   The United States said that i t was not the WTO 's function, nor was it within its authority, to 
second guess a sovereign 's national security determination. Members had not abdicate d their 
responsibilities to their citizens to protect their essenti al security interests when they had formed 
the WTO. Because the United States ha d invoked GATT  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 t he invocation of GATT  Article XXI by the United States.  The United States  
therefore d id not see any reason for this matter to proceed further. The United States nonetheless 
would take a few moments to express how misguided this request was in terms of the  EU's own 
economic interests. As noted under the previous Agenda item, Members were well aware that the 
steel and aluminium  sectors ha d been suffering under conditions of massive excess capacity. 
Members ha d recognized that this situation was untenable, an d had resulted in a crisis for the global 
economic system. It was striking that this view ha d been expressed particularly forcefully by the 
European Union itself.  For example, in the 2017 Global Steel Forum report prepared for the G20, 
the European Union had described the situation in crisis terms:  "[g]lobal overcapacity has reached 
a tipping point  – it is so significant that it poses an existential threat  that the EU will not accept . This 
requires urgent solutions  addressing its structural causes ".69 The United States  agree d with the 
European Union that overcapacity "poses an existential threat " and "requires urgent soluti ons".  The 
United States  wonder ed how the European Union underst ood the terms "existential threat " and 
"urgent solutions ", however.  Bec ause the United States underst ood "existential " as "relating to 
existence " and "urgent " as "requiring immediate  action, " the United States  viewed the EU diagnosis 
as, in fact, supporting  the US actions on steel and aluminium . Together with the European Uni on, 
the United States  had also participated in the Global Steel Forum on Excess Capacity for years, but, 
in all honest y, no effective solutions ha d been found.  And so, this ongoing "existential threat " calling 
for "urgent solutions " that the EU "will not accept " had in fact been going on for years, draining 
public support for an international trading system that permit ted devastating economic harms to 
occur – for years  – without effective remedies. The United States would welcome effective solutions 
and co ordinated actions to address these problems.  Rather than working together with the United 
States  to address the source of non -market economic conditions, however, some Members that 
share d long-standing security  relationships with the United States were wo rking to challenge a US 
national security determination.  This was a blatant misuse of the WTO dispute settlement system. 
The United States  found it troubling and regrettable that the European Union would risk such damage 
to the WTO – contrary to the longs tanding European position on GATT  Article XXI.  The United States 
had invoked GATT  Article XXI for its measures taken pursuant to Section 232.  The United States 
had implemented these measures only after long and careful analysis, and after all trading part ners 
had had the chance to address US concerns. While the United States ha d acted in accord ance with 
its commitments to protect its legitimate security interests, other Members ha d not.  Rather than 
work with the United States, they ha d retaliated with tar iffs designed to punish US companies and 
workers.  The United States  would provide remarks on these unjustified and WTO -inconsistent 
retaliatory tariffs under separate items on the Agenda of the present meeting . The United States 
wishe d to be clear:  if th e WTO were to undertake to review an invocation of GATT  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 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 establishment of the panel request ed by the European Union at the present meeting . The 
United States  would encourage European countries to consider carefully their broader economic, 
political, and security interests.   
10.5.   The DSB took note of the statements and agree d to revert to this matter.  
                                                
68 Idem. 
69 Global Forum on Steel Excess Capacity Report, November 30, 2017, prepared under the  direction of 
the Chair of the G20, para. 126.  WT/DSB/M/420  
 
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  11  UNITED  STATES – CERTAIN MEA SURES ON STEEL AND A LUMINIUM PRODUCTS  
A.  Request for the establishment of a panel by Canada (WT/DS550/11)  
11.1.   The Chairperson  drew attention to the communication from Canada contained in document 
WT/DS550/11 . She then  invite d the representative of Canada to speak.  
11.2.   The representative of Canada  said that Canada was disappointed that this dispute ha d not 
been resolved. It wa s inconceivable that exports of steel and aluminium products from Canada would 
be found to threaten US national s ecurity. Canada was therefore extremely concerned that the 
United States ha d used the national security exemption to justify imposing tariffs on exports of these 
products. These tariffs, imposed under the pretext of national security, were unacceptable and  
counterproductive. More broadly, Canada was very concerned that such protectionist, unilateral 
actions undermine d the integrity of the global trading system. As Canada ha d repeatedly indicated 
to the United States , Canada was  prepared to resolve this disp ute at any stage if the US remove d 
these protectionist tariffs. Canada therefore continue d to urge the United States to do so. In the 
meantime, Canada s aw no other option but to pursue dispute settlement and therefore request ed 
the establishment of a panel. Further, Canada 's position 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 Russian Federation (DS554) and Turkey (DS564) .  
11.3.   The representative of the United  States  said that t he United States was deeply disappointed 
that Canada ha d requested establishment of a panel in this dispute.  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 expla ined that the President of the United States had determined that these 
measures were necessary to address the threatened impairment that imports of steel and aluminium  
articles pose d to US national security. As Canada kn ew, the position of the United State s for over 
70 years ha d been that actions taken pursuant to Article XXI of the GATT 1994 were not subject to 
review by the WTO.  Each sovereign ha d the power to decide, for itself, what actions were essential 
to its security, as was reflected in the text o f GATT 1994 Article XXI.70 As Canada also kn ew, it ha d 
also been the position of Canada that the invocation of Article XXI was not reviewable in dispute 
settlement.  In the same 1982 GATT Council discussion in which the European Community had 
expressed its view that the invocation of Article XXI was self -judging, Canada  had made a similar 
and unequivocal statement:  "Canada 's sovereign action was to be seen as a political response to a 
political issue " and "the GATT had neither the competence nor the respons ibility to deal with the 
political issue which had been raised " under GATT Article XXI.71 Because the United States ha d 
invoked GATT  Article XXI, there was no basis for a WTO panel to review the clai ms of breach raised 
by Canada. Nor was there any basis for  a WTO panel to review the invocation of GATT  Article XXI 
by the United States.  The United States  therefore d id not see any reason for this matter to proceed 
further. For these reasons, the United States  did not  agree to establishment of the panel request ed 
by Canada at the present meeting . The United States note d that Canadian 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.  
11.4.   The DSB took note of the statements and agree d to revert to this matter.  
12  UNITED  STATES – CERTAIN MEA SURES ON STEEL AND A LUMINIUM PRODUCTS  
A.  Request for the establishment of a panel by Mexico (WT/DS551/11)  
12.1.   The Chairperson  drew attention to the communication from Mexico contained in document 
WT/DS551/11 . She then invite d the representative of Mexico to speak.  
12.2.   The representative of Mexico  said that Mexico welcome d the opportunity to speak at the 
present meeting  to address the conc erns raised by the measures adopted by the United States on 
                                                
70 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).  
71 C/M/157, p. 10.  WT/DSB/M/420  
 
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  certain steel and aluminium products. Mexico consider ed that these measures raise d not only legal 
but also systemic concerns . First, the US measures raised l egal concerns  in relation to the nature  of 
safeguard measures, regardless of how that Member characterize d its own measures and of the 
domestic legal basis  that was relied upon for their  adopt ion. This necessarily ha d an impact on the 
applicability of the Agreement on Safeguards and, therefore,  on the rights and obligations of 
Members under this Agreement. Second , Mexico's legal concerns related to  the nature and scope of 
Article XXI of the GATT 1994 . That Article  could  be invoked by Members as an exception ; this raised 
issues to do with  the typ e of measures that would fall within the scope of such exception and the 
way in which Members could  justify such measures  under  that Article . The US measures also raise d 
systemic concerns, which stem med notably from the US understanding of the relationship between 
national security issues and WTO dispute settlement. According to the US understanding, " [i]ssues 
of national security are political matters not susceptible to review or capable of resolution by WTO 
dispute settlement" .72 Mexico con sidered that this view was not coherent with the dispute settlement 
objectives and commitments of Members. This view  would defeat the purpose and impede the 
function ing of the DSB and, consequently, of panels and the Appellate Body. It would also have an 
impact on Members' rights under the covered agreements, and, ultimately, would cause a significant  
crisis in the multilateral trading system. The se legal and systemic concerns  were of great 
significance. Mexico therefore request ed the establishment of a pan el, with standard terms of 
reference. Given that there were seven 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. This panel should exam ine the compatibility of the measures adopted by the United 
States and address the concerns raised.  
12.3.   The representative of the United  States  said that t he United States was disappointed that 
Mexico ha d requested establishment of a panel in this dispute. 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 GA TT 1994.  In particular, the 
United States  had explained that the President of the United States had determined that these 
measures were necessary to address the threatened impairment that imports of steel and aluminium  
products  posed to US national securi ty. As the United States had explained under  previous Agenda 
items, the position of the United States for over 70 years ha d been that actions taken pursuant to 
Article XXI of the GATT 1994 were not subject to review by the WTO.  Each sovereign ha d the powe r 
to decide, for itself, what actions were essential to its security, as was reflected in th e text of 
GATT  1994 Article XXI.73 Because the United States ha d invoked GATT  Article XXI, there was no 
basis for a WTO panel to review the claims of breach raised by Mexico. Nor was there any basis for 
a WTO panel to review the invocation of GATT  Article XXI by the United States.  The United  States 
therefore d id not see any reason for this matter to pr oceed further. For these reasons, the United 
States  did not agree to establishment of the panel requested by Mexico at the present meeting . The 
United States note d that Mexican and US authorities ha d been engaging in constructive discussions 
towards resolv ing concerns surrounding these matters . The United States was hopeful that these 
discussions m ight be concluded satisfactorily.  
12.4.   The representative of Japan  said that Japan wished to make a  statement in relation to  Agenda 
items 9 to 14 and 19. The United St ates had explained that tariffs on imports of steel and aluminium 
products imposed pursuant to Section 232 of the Trade Expansion Act of 1962 had been  necessary 
to adjust the imports of steel and aluminium articles that threaten ed to impair the national se curity 
of the United States. Japan recall ed the Ministerial Declaration of November 1982 that had been  
made in the context of an increasing number of inadequate and inward -looking trade measures and 
under continuing pressures for protective actions of gove rnments. The Ministerial Declaration of 
November 1982 had been  the result of efforts by GATT Contracting Parties  to overcome such threats 
to the multilateral trading system. Members had undert aken individually and jointly to abstain from 
taking restrictive trade measures for reasons of a non -economic character not consistent with the 
GATT. Japan s aw some resemblance between that situation and  the current circumstances  in which  
Members  faced similar  challenges to international trade and threats to the multilateral trading 
system. Japan call ed on Members to recall the commitment that was made to overcome such 
challenges. In line with this commitment , only with extreme caution could Members invoke  the 
                                                
72 Communication from the United States, dated 15 June 2018, United States – Certain Measures on Steel 
and Aluminium Products, WT/DS551/10, 6 July 2018.  
73 GATT 1994 Article XXI(b) ( "Nothing in this Agreement s hall 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/420  
 
- 33 - 
 
  security exceptions provision. Japan expresse d serious concerns about the unilateral nature of the 
US additional tariff measures and their inconsistency with the  WTO Agreement. Japan emphasize d 
that any trade -restrictive measures inconsistent with the WTO Agreement undermine d the rule s-
based multilateral trading system.  In light of the far -reaching implications of t he US measures, Japan 
wished to reiterate  that all trade measures had to  be consistent with the WTO Agreement. Japan 
also consider ed that once a  panel was established, a claim based on national security, if invoked, 
was subject to review by the panel. Members who invok ed GATT Article XXI had to  explain how the 
requirements under GATT Article XXI were met . Based on their arguments and the facts pre sented 
by the parties , the panel could then examine and decide  whether the measures at issue compl ied 
with that Article.  
12.5.   The DSB took note  of the statements and agree d to revert to this matter.  
13  UNITED  STATES – CERTAIN MEA SURES ON STEEL AND A LUMINIUM PRODUCTS  
A.  Request for the establishment of a panel by Norway (WT/DS552/10)  
13.1.   The Chairperson  drew attention to the communication from Norway contained in document 
WT/DS552/10 . She then  invite d the representative of Norway to speak.  
13.2.   The representative of Norway  said that Norway had submitted its request for the 
establishment of a panel on 18 October  2018 in this dispute regarding US additional tariffs on certain 
steel and aluminium products of 25% and 10% respectively. In making this request, Norway join ed 
six other co -complainants in seeking to bring US steel and aluminium tariffs before a WTO panel.  
This collective resort to dispute settlement reflect ed the serious concern of the Membership over the 
US measures .  It also reflect ed trust and confidence in the WTO as a forum for resolving international 
trade disputes. The seven panel requests reflect ed a shared convi ction among the co -complainants  
that the US steel and aluminium tariffs were inconsistent with US WTO obligations. In particular, the 
tariffs fa iled to respect US obligations under the Agreement on Safeguards.  Norway  appreciate d 
that the United States d id not characterize its steel and aluminium tariffs as "safeguard measures " 
as a matter of US municipal law. However, the question was not one of municipal law. Rather, the 
question was whether, as a matter of WTO law, the steel and aluminium tariffs constitute d 
"safeguard measures " under the Agreement on Safeguards.  It w ould fall to a WTO panel to decide 
which WTO obligations appl ied to the US steel and aluminium tariffs, based on an objective 
assessment of the "content and substance " of the measures, and on the applicability of the covered 
agreements. The US steel and aluminium tariffs also violate d cornerstone principles of the GATT  
1994.  The United States 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 exemption ha d been extended to the seven co -
complainants.  The US measures, therefore, involve d a material difference in the treatment of 
imports from different Members. The measures imposed by the United States ha d affected 
Norwegian exports of steel and aluminium since they had co me into effect on 23 March 2018. Norway 
was deeply concerned about US action in this disput e, and the negative impact it w ould have on the 
WTO system, if left un -challenged. That is why Norway 's reasons for bringing this dispute went 
beyond the actual impact of the US measures on Norway's  exports of steel and aluminium . Norway's 
panel request wa s equally linked to its primary interest in maintaining, as a matter of principle, the 
rules-based multilateral trading system.  Norway was worried that t he United States would adopt 
measures so evidently inconsistent with obligations fundamental to the rules -based trading system 
while offering a purported justification that was so evidently divorced from real -world security 
concerns. Norway appreciate d the sensitivity of the matters raised in this dispute.  However, Norway 
was confident that a WTO panel w ould be well -equipped to assess the co -complainants ' claims, using 
the rules and procedures set out in the DSU and the covered agreements.   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 had 
requested formal dispute settlement consultations  with the United States on this matter on 12 June 
2018, and had held consultations with the United States on 19 July 2018. Unfortunately, such 
consultations had failed to resolve the dispute. Accordingly, Norway request ed that a panel be 
established , with standard terms of reference. Like other co -complainants and with reference to 
Article 9.1 of the DSU, Norway request ed the establishment of a single panel to examine all seven 
complaints brought at the present meeting  in relation to the same US measures on imports of steel 
and aluminium, as all seven panel requests were related to the same matter.   WT/DSB/M/420  
 
- 34 - 
 
  13.3.   The representative of the United  States  said that t he United States was disappointed that 
Norway ha d submitted a panel req uest in this dispute.  This action wa s 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, Norway was 
undermining the trading system by  asking the WTO to do what it had never been intended 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 considered  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  had determined that these measures we re necessary to address the 
threatened impairment that imports of steel and aluminium  products  posed to US national security. 
In the US reply to the consultation requests challenging the Section 232 measures, the United States 
had clearly stated: "[i]ssues  of national security are political matters not susceptible to review or 
capable of resolution by WTO dispute settlement ".74 The United States  therefore d id not understand 
the purpose of this request for panel establishment, seeking WTO findings that the Un ited States 
had breached certain WTO provisions.  The WTO c ould not, consistent with GATT 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 WTO Member c ould be surprised by this view.  For decades, the 
United States, as well as other WTO Members, ha d consistently held the position that actions taken 
pursuant to GATT 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.75 As noted previously, in  1982, when certain European 
actions had been  before the GATT Council, the European Economic Community and its member 
States stated that GATT Article XXI had been  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 resort – the judge 
of its exercise of these rights ".76 In that same discussion, Norway  had supported the EEC and its 
member States, Canada, and Australia, in their invocation of GATT Article XXI, stating that "in taking 
the measures … [they] did not act in contrav ention of the General Agreement ".77 As the United 
States had also noted, the United States in the same meeting had also supported the European 
position, stating 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 ".78 The position 
of the United States remain ed the same in 2018 as it was in 1982, 1949, and indeed during the 
negotiation of the GATT itself. Because the United States ha d invoked GATT Article XXI, there was 
no basis for a WTO panel to review the claims of breach raised by Norway.  Nor was there any basis 
for a WTO panel to review the invocation of GATT Article XXI by the United States.  The United 
States  therefore d id not see any r eason 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 GATT 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 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 
establishment of the panel requested by Norway at the present meeting . 
13.4.   The DSB took note of the statements and agree d to revert to this matter.  
                                                
74 See e.g., WT/DS548/13.  
75 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).  
76 C/M/157, p. 10.  
77 C/M/157, p. 10.  
78 Idem.  WT/DSB/M/420  
 
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  14  UNITED  STATES – CERTAIN MEA SURES ON STEEL AND A LUMINIUM PRODUCTS  
A.  Request for the establishment of a panel by the Russian  Federation (WT/DS554/17)  
14.1.   The Chairperson  drew attention to the communication from the Russian Federation contained 
in document WT/DS554/17 . She then  invite d the representative of the Russ ian Federation to speak.  
14.2.   The representative of the Russian  Federation  said that Russia had requested consultations 
with the United States on 29 June 2018  concerning the measures that the United States had 
introduced to adjust imports of steel and aluminium  into the United States . These measures i nclud ed 
the imposition of additional ad valorem  import duties on certain steel and aluminium products and 
the exemption of certain Members from these measures. The US measures in this dispute adversely 
affect ed exports of these products from Russia  to the United States. Consultations had been  held on 
30 August 2018 with a view to reaching a satisfactory settlement of the matter. Unfortunately, these 
consultations had failed to resolve th is dispute. Russia fully share d the view expressed by other 
Members who had submitted panel requests regarding the same US measures  that the 
unprecedented number of complainants was a sign towards a shared understanding of inconsistency 
of the US measures with the cited agreements. The refore, Russia request ed, pursuant to Article 6 
of the DSU, that the DSB  establish a panel to examine th is dispute, with standard terms of reference 
as set forth in Article 7.1 of the DSU. Taking into account the fact that there were seven  analogous 
requests for the establishment of a panel against the US measures on steel and aluminium, Russia 
request ed the establish ment of a  single panel under Article 9.1 of the DSU.   
14.3.   The representative of the United  States  said that t he United States ref erred to  the statement 
made under the previous Agenda item. 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  had 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 challenging the 232 measures, the United 
States had clearly stated: "[i]ssues of national security are political matters not susceptible to review 
or capable of resolution by WTO dispute settlement ".79 The United States  therefore d id not 
understand the purpose of this request for panel establishment, seeking WTO findings that the 
United States ha d breached certain WTO provisions.  The WTO c ould not, consistent with GATT 
Article XXI, consider those claim s or make the requested findings. The United States ha d noted that, 
for decades, the US position ha d been that actions taken pursuant to GATT 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.80 The position of the United States remain ed the same in 2018 as it was in 1982, 1949, and 
indeed during the negotiation of the GATT itself. In requesting this panel, however, Russia d id not 
even act consistently with the view it had expressed in 2017, less than one year ago .  In another 
dispute, the United States had agreed with Russia 's understanding of GATT 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 were those essential security interests, was at the sole 
discretion of that Member.81 The text of GATT Article XXI ha d not changed in the pas t year – only 
Russia 's interests ha d.  That was not a sound basis for understanding WTO rules, nor for preserving 
the legitimacy of the WTO 's dispute settlement system. For these reasons, the United States did not 
agree to establishment of the panel requested by Russia at the present meeting . 
14.4.   The representative of the Russian  Federation  said that Russia wished to note that the 
references made at the present meeting  by the U nited States to Russia's  position related to another  
dispute. That other dispute ha d nothing to do with the present dispute. The concrete situation caused 
by the US measures ha d no relevance to any circumstances, measures or other factors considered 
in any other dispute to which  Russia was a party. At the present meeting, the U nited States made a 
                                                
79 See e.g., WT/DS548/13.  
80 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 ad ded).  
81 See, e.g., US 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/420  
 
- 36 - 
 
  statement in respect of China 's request for the establishment of a panel on the same matter. In its 
statement , the United States had blamed China for its economic policies. This reinforce d Russia's  
view that the US measures on steel and aluminium were a reaction to purely economic factors. 
Russia's  understand ing was that  the United States itself recognize d that the problems it had been  
trying to solve with its measures were about steel and aluminium markets and economic factors that 
had been affect ing them. Russia believed  that the US additional duties on steel and aluminium were 
in essence safeguard measures. They were aimed at revitaliz ing the US steel and aluminium 
industries by means of squeezing out competitive imports. The n ature of the US measures and 
circumstances under which they were taken le ft no doubt that they were in fact safeguards. It was 
obvious to ever yone, irrespective of the way in which the United State s characterize d its own 
measures.  
14.5.   The DSB took note of the statements and agree d to revert to this matter.  
 
15  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 ) 
15.1.   The Chairperson  drew attention to the communication from the United States contained in 
document WT/DS557/2 . She then  invite d the representative of the United States to speak.  
15.2.   The representative of the United  States  said that u nder previous Agenda items,  certain 
Members ha d claimed that the United States was breaching WTO rules.  That view was erroneous 
as the United States  had explained that US actions taken pursuant to Section 232 of the 1962 Trade 
Expansion Act  were fully justified under Article XXI of  the GATT 1994 as national security actions. 
At the same time, several of those same Members were unilaterally retaliating against the United 
States.  They pretend ed that the US actions under Section 232 were so-called "safeguards, " and 
further pretend ed that their unilateral, retaliatory duties constitute d suspension of substantially 
equivalent concessions under the WTO Safeguards Agreement. This was hypocritical.  Just as those 
Members appear ed to be ready to undermine the dispute settlement system by thr owing out the 
plain meaning of GATT Article XXI and 70 years of practice, so too were they ready to undermine 
the WTO by suggesting they were following WTO rules while taking measures blatantly against those 
rules. And Members  knew from their own actions t hat many of these Members d id not seriously 
believe that the US actions under Section 232 were safeguard measures.  Canada ha d not even 
notified the Council for Trade in Goods of its suspension of concessions and other obligations, as it 
would have been required to do under Article 12.5 of the WTO Agreement on Safeguards if its duties 
had been  in response to a US safeguard action.  Thus, even had its action been permissible under 
the Safeguards Agreement, which it was not, Canada had not even follow ed the W TO rules that 
would have applied to that action. To be clear: 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, howe ver, was not invoking GATT Article XIX as a basis for 
its Section 232 actions.  Thus, GATT Article XIX and the Safeguards Agreement were not relevant to 
the US actions under Section 232, and the United States ha d not utilized its domestic law on 
safeguards to take action under Section 232. Because the United States was not invoking GATT 
Article XIX, there was no basis for another Member to contend that GATT Article XIX should have 
been invoked and to use safeguard s 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 Sta tes 
would not permit its businesses, farmers, and workers to be targeted in this WTO -inconsistent way. 
For these reasons, the United States request ed that the DSB establish a panel to examine this 
matter , with standard terms of reference.   
15.3.   The representati ve of Canada  said that Canada 's countermeasures respond ed directly to the 
unwarranted and unprecedented unilateral trade restrictions imposed by the United States against 
Canadian steel and aluminium  exports. By taking this action, Canada ha d imposed trade  measures 
on US imports equal to the value of Canadian exports affected by US steel and aluminium  tariffs. 
The US tariffs, ostensibly taken on the basis of national security, negatively affect ed Canadian and 
US workers and businesses and threaten ed to unde rmine the integrity of the global trading system. 
Canada  regret ted having to take countermeasures to respond to these US tariffs . However, Canada 
was confident that its countermeasures were fully consistent with Canada 's international trade WT/DSB/M/420  
 
- 37 - 
 
  obligations. For these reasons, Canada could not accept that a panel be established at the present 
meeting in this dispute.   
15.4.   The DSB took note of the statements and agree d to revert to this matter.  
16  CHINA – ADDITIONAL D UTIES ON CERTAIN PRO DUCTS FROM THE UNI TED STATES  
A.  Request for the establishment of a panel by the United  States (WT/DS558/2)  
16.1.   The Chairperson  drew attention to the communication from the United  States contained in 
document WT/DS558/2 . She then  invite d the representative of the United States to speak.  
16.2.   The representative of the United  States  said that u nder previous Agenda items, certain 
Members ha d claimed that the United States was breaching WTO rules.   That view was erroneous 
as the United States  had explained that US actions taken pursuant to Section 232 of the 1962 Trade 
Expansion Act  were fully justified under Article XXI of the GATT 1994 as national security actions.  
At the same time, some of those very same Members were unilaterally retaliating against the United 
States, based on the pretence  that the actions taken by the United States were so -called 
"safeguards ".  Those Members engage d in the further preten ce that their unilateral, retaliatory duties 
constitute d a suspension of substantially equivalent concessions pursuant to the WTO Safeguards 
Agreement. This was hypocritical.  Just as those Members eagerly s ought  to undermine the dispute 
settlement system by throwing out the plain meaning of Article XXI and 70 years of practice, so too 
were they prepared to undermine the WTO by takin g measures blatantly against WTO rules, all the 
while pretending they were following the rules. China was a prime example.  China pretend ed that 
it was entitled to withdraw substantially equivalent concessions pursuant to the Safeguards 
Agreement, but Chin a had not complied with the most basic elements of the Safeguards Agreement 
that would be necessary for such action.  Suspension of concessions and other obligations under the 
Safeguards Agreement require d a multi -step process that had to  take place within  90 days from the 
application of a safeguard measure.  That process entail ed certain procedures and considerations 
that China ha d not satisfied to put its suspension of concessions into effect. If China had truly 
considered the US actions under Section 232 to be safeguards, it would certainly have respected an 
obligation to allow 30 days for consultations and to wait 30 days to implement its suspension of 
concessions.  But China had not compl ied with either of these obligations. Moreover, China ha d not 
even attempted to address whether its action was in response to an alleged "safeguard " taken 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 under the S afeguards Agreement could  not be 
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 was not serious about its contention that 
the US actions under Section 232 were safeguard measures or that China was exercising a right 
under the Safeguards Agreement. To be clear:  Article XIX of the GATT 1994 was not applicable to 
the US actions under Section 232.  GATT Article XIX 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 GATT Article XIX as a basis for its Section 
232 actions.  Thus, GATT Article XIX and the  Safeguards Agreement were not relevant to the US 
actions under Section 232, and the United States ha d not utilized its domestic law on safeguards to 
take the actions under Section 232. Because the United States was not invoking GATT Article XIX, 
there was no basis for China to pretend that GATT Article XIX should have been invoked and to use 
safeguards rules that were simply inapplicable. China 's additional, retaliatory duties were nothing 
other than duties in excess of China 's WTO commitment and were appl ied only to the United States, 
contrary to its 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, the United 
States request ed that the DS B establish a panel to examine this matter , with standard terms of 
reference.   
16.3.   The representative of China  said that China wishe d to express its strong disappointment with 
the US decision to request the establishment of a panel to examine the subject matte r of th is dispute. 
The U nited States had filed its request for consultations with China on 16 July 2018 . China had held 
sincere consultations with the U nited States on 29 August 2018 and had positively responded to the 
relevant questions. China ha d reiterated its steadfast stance on respecting WTO rules and abiding 
by its commitments related to its  accession to the WTO. 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 respe ctively 
on certain steel and aluminium  products from China. In its statement  previously made under Agenda WT/DSB/M/420  
 
- 38 - 
 
  item 9, China had reiterated that US measures for certain steel and aluminium  products were in 
essence safeguard 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 had 
little other choice but to introduce rebalancing measures under the relevant provisions thereof. At 
the present meeting, the  United States had repeatedly use d non-market economy  and overcapacity 
labels to further cover its safeguard measures  already disguised as national security measures . China 
did not  know in how many layers the U nited States was trying to dress its additiona l duties . China 
did know, however,  that the DSB was mandated to strip any disguise away from  protecti onist 
measures and to recommend bringing such measures  into conformity with WTO rules. As China had  
stated, China 's tariff measures were taken pursuant to the Safeguard s Agreement to offset  US 
safeguard measures  disguised  as national security measures . Therefore, China did not  agree to the 
establishment of a panel in this dispute.  
16.4.   The DSB took note of the statements and agree d to revert to this matter.  
17  EURO PEAN  UNION – ADDITIONAL D UTIES ON CERTAIN PRO DUCTS FROM THE 
UNITED  STATES  
A.  Request for the establishment of a panel by the United  States (WT/DS559/2)  
17.1.   The Chairperson  drew attention to the communication from the United States contained in 
document WT/DS5 59/2. She then  invite d the representative of the United States to speak.  
17.2.   The representative of the United  States  said that u nder previous Agenda items, certain 
Members ha d claimed that the United States was breaching WTO rules.   That view was erroneous 
as the United States  had explained that US actions taken pursuant to Section 232 of the 1962 Trade 
Expansion Act  were fully justified under Article XXI of the GATT 1994 as national security actions.  
At the same time, some of those very same Members were unila terally retaliating against the United 
States, based on the pretence that the actions taken by the United States were so -called 
"safeguards ".  Those Members engage d in the further preten ce that their unilateral, retaliatory duties 
constitute d a suspension of substantially equivalent concessions pursuant to the WTO Safeguards 
Agreement. This was hypocritical.  Just as those Members eagerly s ought  to undermine the dispute 
settlement system by throwing out the plain meaning of Article XXI and 70 years of pract ice, so too 
were they prepared to undermine the WTO by taking measures blatantly against WTO rules, all the 
while pretending they were following the rules.  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. The US actions on steel and aluminium  had been  taken under Section 232, a national 
security statute that expr essly 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 responsible government department.  The US actions had not 
been taken pursuant to Section 201 of the Trade Act of 1974 that authorize d the imposition of a 
safeguard measure under US domestic law. To be clear:  Article XIX of the GATT 1994 on safeguards 
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 
GATT Article XIX as a basis for its Section 232 actions.  Thus, GATT Article XIX and the Safeguards 
Agreement were not relevant to the US actions under Section 232. Because the United States was 
not invoking GATT Article XIX, another Member c ould n ot simply act as if GATT Article XIX had been 
invoked and use that sham preten ce to apply safeguards rules that were simply inapplicable. The 
European Union 's additional, retaliatory duties were nothing other than duties in excess of the EU 's 
WTO commitments and were applied only to the United States, contrary to its 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, the United States request ed that the DSB establish 
a panel to examine this matter , with standard terms of  reference.   
17.3.   The representative of the European  Union  said that t he EU w ould speak only under this 
Agenda item, and did 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, in 
order to avoid repe tition at the present and already sufficiently long DSB meeting. The spirit of the 
statement which the EU  would make also applie d to the other previously mentioned  and related 
Agenda items. The United States was of course entitled to bring this matter to dispute settlement in WT/DSB/M/420  
 
- 39 - 
 
  the WTO . However, the EU firmly believe d that the EU measures were fully justified. At the present 
meeting, Members already had had the opportunity to discuss the import restrictions on steel and 
aluminium which the United States had adopted on 8 March 2018. The EU c ould reassure all Members  
that it ha d not escaped its attention  that the U nited States had relied on Section 232 of the 1962 
Trade Expansion Act  for these measures . Respect for international law, however, was not and c ould 
not be constrained by domestic law . Hence, the qualification of the se US measures had to  take place 
based on  objective criteria. Rather than displaying any element that c ould qualify under the GATT 's 
security exceptions, the US measures serve d to protect the allegedly struggling domestic steel and 
aluminium industries against competing imports. The United States  had taken  these measures in an 
emergency action that had implied the suspension notably of its tariff concessions which had stood 
in the way of the measures adopted. These were all essential elements of what the WTO Agreement 
consider ed a safeguard measur e. Or, put differently, he said that " one has to acknowledge that if 
something looks like a safeguard, works like a safeguard and quacks like a safeguard, then it 
probably also is a safeguard ". Safeguard measures g ave rise to suspension rights under Article 8 of 
the WTO Agreement on Safeguards. Th e fact th at the U nited States had called its measures 
differently and had respected none of the procedures and requirements prescribed for the legal 
imposition of safeguard measures c ould not possibly put the  United States in the advantageous 
position of escaping the permitted response to a safeguard. For these reasons, the EU was confident 
that it w ould prevail in this dispute, and that its actions w ould be declared a permitted and 
proportionate response to t he type of US trade policy action Members  had seen in this dispute . The 
EU therefore did not accept the establishment of a panel at the present meeting in this dispute .  
17.4.   The DSB took note of the statements and agree d to revert to this matter.  
18  MEXICO – ADDI TIONAL DUTIES ON CER TAIN PRODUCTS FROM T HE UNITED  STATES  
A.  Request for the establishment of a panel by the United  States (WT/DS560/2)  
18.1.   The Chairperson  drew attention to the communication from the United States contained in 
document WT/DS560/2 . She then invited the representative of the United States to speak.  
18.2.   The representative of the United  States  said that u nder previous Agenda items, certain 
Members ha d claimed that the United States was breaching WTO rules.  That view was erroneous 
as the United States  had explained that US actions taken pursuant to Section 232 of the 1962 Trade 
Expansion Act  were fully justified under Article XXI of the GATT 1994 as national security actions. 
At the same time, several of those same Members were unilaterally retaliat ing against the United 
States, based on the pretence  that the US actions under Section 232 were so-called "safeguards ". 
Those Members engaged in the further pretence  that their unilateral, retaliatory duties constitute d 
suspension of substantially equivalent concessions under the WTO Safeguards Agreement. This was 
hypocritical.  Just as those Members appear ed to be ready to undermine the dispute settlement 
system by throwing out the plain meaning of GATT Article XXI and 70 years of practice, so too were 
they prepared  to undermine the WTO by taking measures blatantly against WTO rules while 
pretending they were following the rules . And Members  knew from their own actions that many of 
these Members d id not seriously believe that the US actions under Section 232 were safeguard 
measures.  Mexico  had not even notified the Council for Trade in Goods of its suspension of 
concessions and other obligations, as it would have been required to do under Article 12.5 of the 
WTO Agreement on Safeguards if its duties had been  in response to a US safeguard action.  Thus, 
even had its action been permissible under the Safeguards Agreement, which it was not, Mexico  had 
not even follow ed the WTO rules that would have applied to that action. To be clear: Article XIX of 
the GATT 1994 was not applicable to US actions under Section 232. Article XIX 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 GATT Article XIX as a 
basis for its Section 232 actions.  Thus, GATT Article XIX and the Safeguards Agreement were not 
relevant to the US actions under Section 232, and the United States ha d not utilized its domestic 
law on safeguards to take action under Secti on 232. Because the United States was not invoking 
GATT Article XIX, there was no basis for Mexico  to pretend that GATT 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 Mexico '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, the Un ited States request ed that 
the DSB establish a panel to examine this matter , with standard terms of reference.   WT/DSB/M/420  
 
- 40 - 
 
  18.3.   The representative of Mexic o said that w ith regard to the request for the establishment of a 
panel by the United States in this dispute , Mexico consider ed that this dispute should not have been 
filed in the WTO, as it wa s based on a measure that had been  adopted in exercise of a right expressly 
conferred by the North American Free Trade Agreement (NAFTA). In this regard, any concern arising 
from t he application of th e 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 
defend the consistency of its measures with the WTO rules.  However, for the reasons stated above, 
Mexico was not in a position to  agree to the establishment of th e panel requested by the 
United  States.  
18.4.   The representative of Japan said that Japan wished to make a statement in relation to  Agenda 
items 15 to 18. The measures at issue in these disputes seem ed to be counteractions to the US 
measures addressed under Agenda items  9 to 14 . Although the United States ha d not notified its 
Section 232 measures on steel and a luminium pursuant to the Agreement on Safeguards, these 
measures appear ed to have the characteristics of the measures to which Article XIX of GATT 1994 
and the Agreement on Safeguards were applicable. In this respect, Japan  noted that on 18 May and 
20 June 2018, Japan had notified the Council for Trade in Goods of the proposed suspension of 
concessions and other obligations referred to in paragraph 2 of Article 8 of the Agreement on 
Safeguards, in respect of which Japan rese rved its rights.    
18.5.   The representative of Brazil  said that Brazil wished to make a statement which applie d to 
Agenda items 15 -18. Brazil consider ed that regardless of the  justification , unilat eral measures taken 
by Members undermine d the pr oper procedures set out in the covered a greements to deal with trade 
disputes , as well as  the rules -based system as a whole. In that sense, Brazil wished  to recall that 
Article 23 of the DSU provide d that Members wishing to seek the redress of a violation or other 
nullifi cation or impairment of benefits "shall have recourse to, and abide by, the rules and procedures 
of this Understanding ". In the present disputes , however, it was important to keep in mind that the 
measures that g ave rise to the measures at issue in these d isputes  were devoid of any legal 
justification and reflect ed a clear protectionist intent . The r eaction to those illegal underlying 
measures had to  be seen in a different light than in regular situations.  At the same time, Brazil  
welcome d the fact that the  United States, with these panel requests, showed renewed  confidence in 
the dispute settlement system. Th ese disputes were  a good example of the need for  predictability , 
harmonious decisions and interpretations of legal provisions.  
18.6.   The DSB took note  of the statements and agree d to revert to this matter.  
19  UNITED  STATES – CERTAIN MEA SURES ON STEEL AND A LUMINIUM PRODUCTS  
A.  Request for the establishment of a panel by Turkey (WT/DS564/15)  
19.1.   The Chairperson  drew attention to the communication from Turkey co ntained in document 
WT/DS564/15 . She then  invite d the representative of Turkey to speak.  
19.2.   The representative of Turkey  said that Turkey regret ted being obliged to initiate  this dispute . 
However, the United States  had left Turkey  with no choice but to do so.   Turkey ha d sought to avoid 
bringing this dispute  before the WTO  and ha d engaged in good -faith discussions with the 
Unite d States . Unfortunately , this had been  to no avail. It was deeply regrettable that the United 
States ha d decided to resort to unilater al measures on steel and aluminium , without a legal basis, 
for obviously protectionist purposes. The United States ha d effectively taken a safeguard measure, 
but without observing the requirements of Article XIX of the GATT 1994 and of the Agreement on 
Safeguards.  As others had also underlined, Members were not bound by the US characterization of 
the measures, since the US measures were driven by  economic purposes and exhibited  all 
constitu tive elements of a safeguard measure. The US measures also violate d other fundamental 
principles of the WTO, including Article s I, II and XI of the GATT. The invalid national security 
concerns proffered by the United States c ould not be accepted. If these arguments were accepted, 
the entire edifice of international trade law, carefully built over decades, w ould crumble under the 
weight of discretionary, arbitrary measures that w ould remove all security and predictability from 
the system. In addition, Turkey was particularly concerned about these measures because Turkey WT/DSB/M/420  
 
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  had been singled out for much higher tariffs than other Members, in yet another v iolation of the MFN 
principle. For no obvious reason – and without any meaningful explanation by the United States – 
Turkey was subject to steel duties that were double those imp osed on other Members.  If the purpose 
of these duties was to protect the US steel and aluminium industry , then w hy was Turkey being 
singled out for extra -high duties?  Was there something special about Turkish steel that harm ed the 
US industry more than s teel from any other country?  This was just another entirely arbitrary element 
of the US measure s.  It was yet another reason why these duties c ould not stand. Turkey also firmly 
reject ed the US contention stated under a previous Agenda item at the present  meeting  that a WTO 
panel d id not have jurisdiction over the matter because the dispute involve d national security 
measures. The US measures at issue  were patently trade -related. Tariffs and quantitative 
restrictions were part of the most basic elements of  a government 's trade policy.  Trade measures 
such as these  therefore had to be challengeable at the WTO and had to  be subject to the jurisdiction 
of WTO panels. These measures c ould not be removed entirely from the ambit of WTO dispute 
settlement, simply because the respo nding Member had invoke d GATT Article XXI. Turkey regret ted 
having to initiate  this dispute.  However,  Turkey had to  act to preserve its rights under the covered 
agreements, rights that the United States ha d chosen to disregard. Turkey therefore request ed the 
establishment of a panel pursuant to Article 6 of the DSU. Like the other Members  who had made 
similar panel requests  related to the  same US measures , Turkey req uested the establishment of a 
single panel pursuant to Article 9.1 of the DSU.   
19.3.   The representative of the United  States  said that t he United States refer red to the statements 
made under Agenda items 13 and 14. The United States ha d explained that it consid ered 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  had 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 challenging the 232 measures, the United States had 
clearly stated: "[i]ssues of national security are political matters not susceptible to review or capable 
of resolution by WTO dispute settlement ".82 The United States  therefore d id not understand the 
purpose of this request for panel establishment, see king WTO findings that the United States ha d 
breached cert ain WTO provisions.  The WTO could not, consistent with GATT Article XXI, consider 
those claims or make the requested findings. The United States  would welcome effective solutions 
and coordinated ac tions to address  the problems created by non -market economic policies and 
practices creating massive excess capacity in the steel and aluminium  sectors.  Rather than working 
together with the United States  to address the source of non -market economic condi tions, however, 
some Members that share d long-standing security relationships with the United States were working 
to challenge a US national security determination.  This was a blatant misuse of the WTO dispute 
settlement system. While the United States ha d acted in accord with its commitments to protect its 
legitimate security interests, other WTO Members ha d not.  Rather than work with the United States, 
they ha d retaliated with tariffs designed to punish US companies and workers.  The United States 
had recently requested supplemental WTO consultations with Turkey on its unjustified amended 
retaliatory tariffs. The United States wishe d to be clear:  if the WTO were to undertake to review an 
invocation of GATT Article XXI, this would undermine the legitimac y 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 nece ssary in order for this organization to maintain any relevancy. For these 
reasons, the United States did not agree to establishment of the panel requested by Turkey at the 
present meeting .  
19.4.   The representative of the Bolivarian Republic of Venezuela  said that Venezuela  wished  to 
express its concerns regarding Agenda items 9 to 14 and 19 concerning  the protectionist and 
unilateral measures that under pinned  these Agenda items . These measures  violate d the multilateral 
trade rules, including the MFN obligation  which Turkey had alluded to in its statement made at the 
present meeting , and which affect ed developing countries in particular .  
19.5.   The DSB took note of the statements and agree d to revert to this matter.  
                                                
82 See e.g., WT/DS548/13.  WT/DSB/M/420  
 
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  20  APPELLATE BODY APPOI NTMENTS: PROPOSAL BY  ARGENTINA; AUSTRALIA; 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, CHINA; ICELA ND; INDIA; 
INDONESIA; ISRAEL; K AZAKHSTAN; KO REA; MEXICO; NEW  ZEALAND; NICARAGUA; 
NORWAY; PAKISTAN; PA NAMA; PARAGUAY; PERU ; THE RUSSIAN  FEDERA TION; 
SINGAPORE; SWITZERLA ND; THE SEPARATE CUS TOMS TERRITORY OF TA IWAN, PENGHU, 
KINMEN AND MATSU; TU RKEY; UKRAINE; URUGU AY; THE BOLIVARIAN R EPUBLIC OF 
VENEZUEL A AND VIET  NAM (WT/D SB/W/609/REV.5)  
20.1.   The Chairperson  said that t his item was on the Agenda of the present  meeting at the request  
of Mexico, on behalf of several delegations. She drew attention to the proposal contained in 
document WT/DSB/W/609/Rev.5 and then invite d the representative of Mexico to speak.  
20.2.   The representative of Mexico  said that t he delegations referred to in document 
WT/DSB/W/609/Rev.5 ha d agreed to submit the joint proposal dated 13 September 2018 to launch 
the selectio n processes for the vacancies in  the Appellate Body . Mexico , on behalf of these 
68 Members, w ished to make a joint statement. T he considerable number of Members that had 
submitt ed this joint proposal reflect ed a common concern with 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  and the dispute settlement and multilateral tra ding systems. It was therefore 
Members'  obligation  to proceed with the launchin g of the selection processes to appoint new 
Appellate Body members, as submitted at the present meeting. As stated in document 
WT/DSB/W/609/Rev.5 , this proposal sought  to: "(i) start four selection processes: one process to 
replace Mr.  Ricardo Ramírez -Hernández, whose second term expired on 30 June 2017; a second 
process to fill the vacancy that resulted from  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 expired 
on 11 December  2017; and a fourth process to replace Mr. Shree Baboo Chekitan Servansing, whose 
four-year term of office 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 flex ible 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.   
20.3.   The representative of Costa Rica , speaking on behalf of the Group of Latin American and 
Caribbean Countries (GRULAC), wished to reiterate the position of the GRULAC regarding the delicate 
situation that resulted from the deadlock in the AB  selection processes. Costa Rica stressed the 
GRULAC's serious concern about this situation which affected the smooth functioning of one of the 
central bodies of the WTO. The delay in launching the AB selection processes meant failing to comply 
with an exi sting mandate, and implied a blatant breach of a legal obligation set out in a covered 
agreement. Costa Rica was aware that concerns that had been raised with respect to the functioning 
of the dispute settlement system and to some specific issues regarding  a decision -making process, 
and that these concerns were preventing the start of the AB selection processes. However, the 
search for a solution to these concerns should not prevent the system from continuing to function. 
A proper interpretation of Article 17 of the DSU, read together with Article 2 of the DSU , would not 
suggest the need for positive consensus in order to launch the selection process aimed at filling the 
vacancies in the Appellate Body. Costa Rica requested the Chairperson to continue to see k a solution 
to this matter while making use of  all the WTO's resources .  
20.4.   The representative of China  said that China echoed the statement made by Mexico on behalf 
of the 68 co -sponsoring Members. China was disappointed that the efforts to launch the AB se lection 
processes had, once again, been frustrated by one Member's persistent and concern -driven 
blockage. He said that the situation was worsening as the United States had blocked the 
reappointment of Mr. Shree Servansing.  He said that t he 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 multilateral trading system. 
Ensuring the integrity and well -function ing of the Appellate Body serve d the common interests of all 
Members.  Article  17.2 of the DSU clearly state d that: " vacancies shall be filled as they arise ". The 
prompt initiation of the AB selection processes  was the responsibility and obligation that had to  be WT/DSB/M/420  
 
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  undertaken by all Members. China believe d that  when Members ha d different views on any specific 
concern, discussion s and negotiation s was the only way forward. It was unjustified for any Member 
to attach any precondition to the launch of the AB selecti on processes . At present, t he Appellate 
Body was in  crisis. Currently, t here were only three Appellate  Body members left.  If Members went  
along this path, they would  face an unprecedented situation . One thing was clear: delaying  the AB 
selection processes  would  adversely impact the operation of  the WTO appellate review  mechanism 
and the functioning of the multilateral trading system. Given that the aftermath would  be borne by 
every Member, Members  needed to launch the AB selection processes  as soon as poss ible so that 
the operation of the Appellate Body could  be ensured.  It was regretful that the U nited States 
continuously refuse d to engage in meaningful discussion s after having raised its concerns with 
respect to the function ing of the Appellate Body. Once  more, China  urged the U nited States to meet 
its commitments under the WTO A greements and to interpret all WTO rules in good faith.   
20.5.   The representative of the United States  said that the United States wished to thank the 
Chairperson for her continued work on these issues. As the United States had explained in prior DSB 
meetings, the U nited States was not in a position to support the proposed decision. The systemic 
concerns that the U nited States had identified remained unaddressed.  As the United States had 
explained at the DSB meeting on 27 August 2018, for more than 15 years, across multiple US 
Administrations, the United States ha d been raising serious concerns with the Appellate Body 's 
disregard for the rules set by Members. Through persistent overreachin g, the WTO Appellate Body 
had been adding obligations that were never agreed by the United States and other Members. The 
2018 US Trade Policy Agenda had outlined several longstanding US concerns.83 The United States 
had raised repeated concerns that appella te 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, thereby 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 under an earlier Agenda item, the Appellate Body ha d issued 
adviso ry opinions on issues not necessary to resolve a dispute.  Furthermore, the United States had  
explained that the Appellate Body ha d reviewed panel fact -finding despite appeals having been 
limited to legal iss ues.  And the Appellate Body had  asserted that p anels had to  follow its reports 
although Members ha d not agreed to a system of precedent in the WTO . And the Appellate Body 
had 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 ha d been calling for 
Members to correct the situation where the Appellate Body act ed as if it ha d the power to permit 
ex-Appellate Body members to continue to decide appeals even after their term s of office – as set 
by Members – had expired.  This so -called "Rule 15 " of the Working Procedures for Appellate Review 
was, on its face, another example of the Appellate Body 's disregard for the WTO 's rules. US concerns 
had not been addressed.  When the Appellate Body abu sed the authority it had been given within 
the dispute settlement system, it undermine d the legitimacy of the system and damage d the 
interests of all Members who care d about having the agreements respected as they had been  
negotiated and agreed. The United  States w ould continue to insist that WTO rules had to be  followed 
by the WTO dispute settlement system, and w ould continue its efforts and discussions with Members 
and with the Chair person  to seek a solution on these important issues.  
20.6.   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 Bo dy to function c ould not be overstated.  Canada  was pleased to join the proposal 
contained in document WT/DSB/W/609/Rev.5  and urge d the DSB to adopt it without further delay.  
The failure to launch the AB selection process es would  only prolong the delays tha t necessitate d 
recourse to Rule 15  of the Working Procedures for Appellate Review , about which the United States 
had expressed concerns. Like other Members, Canada was  disappointed that the United  States ha d 
linked the start of the AB selection processes  to the resolution of certain procedural concerns it ha d 
shared with the Membership . Canada  invite d 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  remain ed committed to working with other interested Members – 
                                                
83 Office of the US Trade Representative, 2018 President 's Trade Policy Agenda, at pp. 22-28. WT/DSB/M/420  
 
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  including the United States – with a view to finding a way to address those concerns in order  to 
allow the AB selection processes  to start and be completed as soon as possibl e.  
20.7.   The representative of Pakistan  said that Pakistan wished to register, once again, its concern 
over the challenging situation faced by  the WTO dispute settlement system . Pakistan  wished to 
reiterate the sense of urgency in the face of the current situat ion. Pakistan believed that  the time 
had come for all Members to start working out a solution t hat would  allow for the smooth functioning 
of the WTO dispute settlement mechanism. Pakistan , being a co -sponsor of the Mexican proposal 
contained in document WT /DSB/W/609/Rev.5 , fully supported that proposal and called on Members 
to agree to it.  
20.8.   The representative of Thailand  said that Thailand wished to thank Mexico and those Members  
who had co-sponsored the proposal. Thailand support ed the launching of the AB selection processes 
as soon as possible. Thailand  wished to reiterate its serious systemic concern over the AB impasse , 
which ha d threatened to undo the WTO's rules -based multilateral trading system. Thailand remain ed 
committed to working constructively wi th all Members to resolve this matter as a priority.   
20.9.   The representative of the European  Union  said that t he EU wished to  refer to its statements 
on this issue made at previous DSB meetings, starting in February 2017. With each passing month, 
the gravity a nd urgency of the situation increase d. 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. 
The EU  invite d all other Members to endorse this proposal, so that the AB appointments c ould be 
made as soon as possible.   
20.10.   The representative of Singapore  said that Singapore wished to refer to its statements made 
at previous DSB meetings. Singapore  wished to reiterate its serious systemic concerns on the failure 
to launch the  AB selection process es. With the expiry of the term of an Appellate Body member on 
30 September 2018, the Appellate Body was now down to three members, which was the ba re 
minimum to hear and decide on  appeal s. Given the strain that the Appellate Body was under , 
Singapore  called on M embers to bear this in mind when considering the filing of appeals. Systemic 
issues which had been raised c ould be discussed in a separate process. In this regard, Singapore  
appreciate d and welcome d the efforts of Members who ha d put forth proposals and ideas in order to 
unblock the impasse. Singapore  stood ready to engage constructively and collaboratively with other 
Members, as well as the Chair person , to help resolve this impasse.   
20.11.   The representative of Japan  said that Japan supported the proposal contained in document 
WT/DSB/W/609/Rev.5 , and  wishe d to refer to its statements made at previous DSB meetings on 
this matter.   
20.12.   The representative of Chinese  Taipei  said that  Chinese Taipei wishe d to refer to its 
statements made at previous DSB meetings on this matter . Chinese Taipei  support ed the initiation 
of the AB selection processes as soon as possible.  
20.13.   The representative of Australia  said that Australia wishe d to refer to its statements made at 
previous DSB meetings on this matter  and to reiterate its serious concerns regarding the DSB 's 
inability to commence the AB selection processes . Australia  remain ed committed to resolving this 
impasse as a priority, and was ready and willing to work with other  Member s on pragmatic solut ions.  
20.14.   The representative of Norway  said that Norway regret ted, once again , that the United States  
could not join the consensus and support the proposal to launch the  AB selection processes . Norway 
wishe d to refer to its statements made at previous DSB mee tings on this matter  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 
processes . It was now high time that Members  surpass ed this deadlock.   
20.15.   The representative of  Switzerland  said that Switzerland wishe d to refer to its statements 
made at previous DSB meetings on this matter . Switzerland deeply regret ted that the DSB continue d 
to be unable to launch the AB selection processes. Once again, Switzerland  wished to reiterate its 
serious systemic concerns about this ongoing deadlock. Switzerland  stood ready, and repeat ed its 
call on all Members, to engage constructively in order to f ind a way forward and overcome this 
stalemate without further delay.   WT/DSB/M/420  
 
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  20.16.   The representative of  Korea  said that Korea support ed the statement made by Mexico at the 
present meeting with regard to  the joint proposal contained in document WT/DSB/W/609/Rev.5 , 
which was co -sponsored by Korea.  
20.17.   The representative of  Brazil  said that it  had now been almost two years since Members had  
first started discussions on the AB selection process es. Unfortunately, no progress ha d been made . 
The need to overcome this impasse had become even more urgent with the expiration of Mr. Shree 
Servansing 's term of office . Since 30 September 2018 , the Appellate Body ha d been operating with 
only three members. Pursuant to the DSU, t he Appellate Bod y was  established as a bo dy composed 
of seven persons.  The proposal contained in document WT/DSB/W/609/Rev.5  and introduced again 
at the present meeting  by 68 Members call ed for the establishment of a selection committee to 
appoint new Appellate Body members  and follow ed a pre -existing  practice  of how to submit the 
matter to the DSB. That practice ha d been followed as a matter of routine in order to help th e DSB  
discharge its obligations under Article 17 of the DSU. It c ould also be seen as a call, an opportunity, 
for the United States to recogn ize its legal obligations toward  the DSU and the Appellate Body. The 
United States asserted  that it would not be in a position to agree to the launching of the AB selection 
process es while its systemic concerns about the WTO dispute settlement system remai ned 
unaddressed. There were certainly issues that c ould be improved in the WTO in general and in its 
dispute settlement system in particular. Brazil was ready to engage with interested Members in order 
to discuss how best to address those concerns. Notwith standing Brazil's  willingness to discuss 
unaddressed systemic concerns, Brazil w ished to  stress once more, however, that these concerns  
simply d id not qualify as legal justification s for blocking 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. 
In this regard, Brazil invited Members  to adopt a different  approach.  Brazil invited Members to  focus 
on the text of the DSU. The provisions of Article 17 of the DSU were 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. 
The provisions of Article 17 of the DSU require d only that the DSB take a decision who to appoint. 
The DSB wa s not required to take action in order to launch a selection process. This was confirmed 
by the recommendations approved by the Preparatory Committee  (WTO/DSB/1). There was thus no 
legal basis in the DSU for blocking a selection process that aim ed at provid ing the DSB with a 
recommendation that w ould help it fulfil its duties to appoint persons to serve on the Appellate Body. 
Arguably , the only DSU pro vision 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: "the DSB shall appoint persons to serve 
on the Appellate Body for a four -year term ". Although Article 17.2 of the DSU did not use the term 
"decision ", as foreseen in Article 2.4  of the DSU  and as it used in other provisions of the  DSU, it 
seemed  that the DSB ha d to decide on whom to appoint as Appellate Body member, by consensus. 
Article 17.3  of the DSU  set mandatory guideline s for the decision -making process on the appointment 
of Appellate Body members: "the Appellate Body shall comprise persons of recognized authority, 
with demonstrated expertise in law, international trade and the subject matter of the covered 
agreements gen erally. They shall be unaffiliated with any government. The Appellate Body 
membership shall be broadly representative of membership in the WTO ". The requirements that 
would legally justify an objection to a consensus on appointing an Appellate Body member thus 
relate d to the qualifications of a candidate. Therefore, unaddressed systemic concerns did not qualify 
as legal justifications for blocking a consensus decision to appoint Appellate Body members.  
20.18.   Brazil said that in no case should the actions of one Member prevent all Members from 
complying with three specific mandatory commands under 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 " in Article 17.1 of the DSU ; (ii) "the Appellate Body shall be composed of 
seven persons " also in Article 17.1 of the DSU ; and (iii) "vacancies shall be filled as they arise " in 
Article 17.2 of the DSU . None of those three DSU mandatory provisio ns regarding the establishment 
and composition of the Appellate Body provide d for the DSB to take a decision. The decision about 
the creation of a double degree of jurisdiction in the format of an Appellate Body composed of seven 
persons – no vacancies all owed – had already been taken by the positive consensus reached under 
the Marrakesh Agreement. Those three provisions impose d inescapable obligations on the DSB itself, 
which mean t that not even th e DSB , through positive consensus, could dismantle or "disestablish " 
the Appellate Body, for example by emptying the Appellate Body of its essential features. The DSB 
was not entitled to decide on the existence of the Appellate Body, but only to guarantee that it 
function ed uninterruptedly according to DSU provisi ons. The Appellate Body ha d been reduced to 
three members, a condition not envisaged and not allowed by the text of the DSU. Impaired by this 
assault on its integrity, it was already in a situation that ma de it unable to hear appeals in disputes WT/DSB/M/420  
 
- 46 - 
 
  that might  create direct or indirect conflicts of interest with one of the remaining AB members. And 
composed of only three members, contrary to the mandatory "shall" of the DSU, it was already in 
breach of the expected geographical representativeness and variety of  legal traditions. In other 
words, what Members  currently faced was the imminence of the dismantling  or "disestablishment " 
of the Appellate Body by a deadlock that amount ed to a breach of the DSU.  This was in direct 
contradiction to the mandate contained in Article 17.1  of the DSU , which state d that "a standing 
Appellate Body shall be established by the DSB ". Only by renegotiating the Marrakesh  Agreement , 
only by consensus of all Members could the Appellat e Body be disestablished or transformed into 
something else. By no means c ould this be achieved through unilateral action. If the DSB allow ed 
the current impasse to extend in time, all Members w ould have a share d responsibility for having 
breach ed the DSU.  
20.19.   Brazil said that a nother aspect of the current situation should  not be underestimated. The 
scope and breadth of consequences caused by the current impasse went far beyond the breach of 
provisions regarding the establishment and functioning of the Appellat e Body. They affect ed the 
concrete trade and systemic interests of all Members that wish ed to invok e their rights to solve 
disputes through the dispute settlement system. For Brazil, this mean t the nullification and 
impairment of benefits under the WTO  Agreement. According to statistics,  around 50 of current 
disputes, at consultation s and panel phases, could potentially be prevented from  benefit ting from 
an appeal or from being adopted, absent agreement between the parties. Members affected by this 
abnormal  state of affairs include d Brazil, the EU, China, Canada, Japan, India, Vietnam, Korea, 
Mexico, Turkey, Ukraine, the United Arab Emirates and others, in addition to  the United States. In 
light of this, Brazil was compell ed to ask a very direct question that required  a response : what was 
the legal justification for a single Member to cause such a disruption in the legal rights of other 
Members? And w ould this Member be held accountable – legally, financially, politically, economically 
– for its illegal  conduct ? Brazil was deeply concerned with the current impasse and its effects on the 
proper functioning of the WTO dispute settlement system and, more fundamentally, on the 
multilateral trading system. In light of the foregoing, and absent of any legal justi fication to block 
the AB selection process es, Brazil wished to urge the DSB to follow the text of the DSU , to launch 
the AB selection processes  and to appoint new members to the Appellate Body. Brazil also wished  
to invite all Members, including the United  States, to embrace  the Members' collective responsibility 
to comply with the obligations under Article 17 of the DSU.   
20.20.   The representative of  India said that India wished to refer to its statements made at previous 
DSB meetings on this matter . India also w ished 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 
had repeatedly stated that it wa s willing to engage constructively with other WTO Members in 
addressing the existing inefficiencies in the WTO dispute settlement system, while strengthening its 
main features and principles. However, this exercise c ould not serve as a pretext to impair and 
disrupt the work of the Appellate Body. India wished to reiterate the importance of filling the 
vacancies in the Appellate Body as a matter of priority.   
20.21.   The representative of  Mexico  said that a s had been stated on several occasions, the Appellate 
Body was a key part of the WTO dispute settlement system . This  was why it should be a priority for 
all Members to ensure its proper functioning. It was fundamental for the Appellate Body to have a 
full contingent. According to the DSU, the WTO dispute settlement system was "a central element 
in providing security and p redictability to the multilateral trading system", and it ha d benefit ted all 
Members. However, despite many attempts made by various delegations, the Appellate Body  
consisted of only three out of the seven members that it should comprise. Mexico still ha d grave 
concerns, which were becoming increasingly pressing. Mexico , once again , called for Members to 
address, in a responsible manner, the current situation whereby , for over a year and a half, Members 
had been unable to launch the AB selection process es. In failing to do this, Members we re clearly 
disregarding the obligation, established in Article 17.2 of the DSU, to fill such vacancies as soon as 
they ar ose. This situation was unacceptable and w ould have a serious systemic impact on the 
Organization. At the time of the present  meeting , there were 11 ongoing appeals and various 
disputes at the panel stage which could reach the Appellate Body. If the situation d id not change, 
there w ould be a major delay in the issuance of reports. Members had to  stop the practice of raising 
concerns without proposing solutions and bring an end to this deadlock for which there was no legal 
basis, especially given the current crisis faced by the WTO dispute sett lement 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 had raised concerns to take into consideration the willingness 
demonstrated by the other Members to engage in discussions and seek a solution to these concerns. WT/DSB/M/420  
 
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  Nevertheless, Mexico  wished to emphasize that such a solution could  not prevent compliance with 
the legal obligations of Members, and therefore, there should  be no link between the AB selection 
process es and other systemic concern s. 
20.22.   Mexico, speaking on behalf of the 68 co -sponsors of th e proposal  contained in document 
WT/DSB/W/609/Rev.5 , said that it regret ted that, once again (17 times),  Members  had still not been 
able to launch  the AB selection processes and ha d thus continuously failed  to fulfil their duties as 
Members of this Organization. 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 
the Appellate Body . There was no legal justification for the current blocking of the AB selection 
process es, which was causing concrete nullification and impairment for many Members. As Article 
17.2 of the DSU clearly state d: "vacancies shall be filled as they arise ". By failing to a ct at the 
present meeting , Members  would maintain the current situation which was seriously affecting the 
functioning  of the Appellate Body against the best interest of all of its Members.   
20.23.   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.5  and emphasi zed the 
importance of launching  the AB selection process es. New Zealand wished to  refer to its statements 
made at previous DSB meetings on the importanc e of the multilateral dispute settlement system. 
New Zealand  consider ed that it was important to discuss issues and to find solutions among 
Members.   
20.24.   The representative of  the Russian  Federation  said that Russia wished to  express its grave 
concerns with how the U nited States had managed to create chaos in mult ilateral trade rules under 
the pretenc e of securing these rules. One Member had blocked the AB selection processe s for over 
a year, even though there had been  no legal ground s for such action. In tha t respect , Russia 
support ed Brazil' s statement made at the present meeting . Russia  urged the U nited States to clarify 
its concerns and to define the proposals which could address them. Otherwise , in the absence of 
such proposals Russia  believe d that these concerns might  not exist , in which case the AB  selection 
process es should be launched.   
20.25.   The representative of  the Bolivarian Republic of Venezuela  said that  Venezuela wishe d to 
associate itself with the statement s made by Mexico and Costa Rica on behalf of  the GRULAC  at the 
present meeting. Venezuela  wished to underline the gravity of the current situation  and call ed for a 
prompt resolution.  
20.26.   The representative of  Chile said that Chile was one  of the co -sponsors of the proposal  
contained in document WT/DSB/ W/609/Rev.5 . Chile regret ted that so much time ha d passed without 
finding  a solution. Chile said that t his discussion was not about one Member in particular. It was 
about the smooth functioning of this Organization.  
20.27.   The representative of  Hong Kong, China  said that Hong Kong, China wishe d to refer to its 
statements made at previous DSB meetings on this matter. Hong Kong, China remain ed deeply 
concerned about the prolonged impasse over the AB selection processes and its impact on the 
multilateral trading sys tem. Hong Kong, China  urged for the launch of the AB selection processes 
without any delay and stated its  commit ment to engaging in a constructive discussion to address 
systemic concerns .  
20.28.   The representative of  the United  States  said that c ontrary to what some Members ha d 
indicated, it was clear that there need ed to be a DSB decision to launch the AB selection process for 
these vacancies.  The decision to appoint an Appellate Body member was a decision of the DSB. 
Furthermore, in looking at what was entaile d in establishing AB selection process es, there were a 
number of issues that need ed to be decided, and such decision s were for the DSB  to take .  This was 
why the very first  AB selection process was one established by a decision of the DSB.84 For example, 
what was the deadline for nominations?  W ould there be a selection committee?  If so, who w ould 
comprise the selection committee?  What was the expectation for when recommendations would be 
made? So, again, it was clear that there need ed to be a DSB decision  to launch AB selection 
process es. 
                                                
84 See WT/DSB/1.  WT/DSB/M/420  
 
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  20.29.   The Chairperson  thanked all delegations for their statements. She said that as all Members 
were 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. In this 
regard, she noted  that some delegations ha d met with her during the pre vious week to share their 
views on this matter . She thank ed those delegations for their initiative to do so.  
20.30.   The DSB took note of the statements.  
21  FOSTERING A DISCUSSI ON ON THE FUNCTIONIN G OF THE APPELLATE B ODY 
(JOB/DSB/2) : STATEMENT BY HONDU RAS 
21.1.   The Chairperson  said that t his item was on the Agenda of today's meeting at the request of 
Honduras. She then  drew attention to document JOB/DSB/2 and invite d the representative of 
Honduras to speak.  
21.2.   The representative of Honduras  said that a s expressed at pre vious DSB meetings, Honduras 
confer red great importance to the Appellate Body and the WTO dispute settlement system. 
Regarding Honduras's non -paper , Honduras ha d been consulting with Members individually and the 
WTO Secretariat to explore the best way to p roceed in this matter. Honduras was  fully aware that 
there were several issues that had to be  resolved  and that Members had to  respect the principle that 
"nothing is agreed until everything is agreed". Honduras was also fully aware that Members were 
prepared  to present other  proposals. Therefore, Honduras  decided not to call for an  open-ended 
meeting that it had announced at the 26 September 2018  DSB me eting.  Honduras support ed all 
work and efforts aimed at  resolv ing this critical situation. Honduras  welcome d all proposals that 
would be presented for Members' consideration in the near future. Honduras  stood ready to engage 
with other Members to seek the best way possible to move forward. Honduras  remain ed available 
to delegations for their questions a nd comments.   
21.3.   The representative of the United  States  said that t he United States thanked  Honduras for its 
non-paper  contained in document JOB/DSB/2 and for placing this item on the Agenda of the present  
meeting. The United States  looked forward to hearin g other Members ' views on options for 
addressing the concerns that the United States ha d been raising for over a year. The United States  
appreciate d that the non -paper provide d some of the possible options and that it recognize d that 
there m ight be other possible approaches. The United States  remain ed interested in hearing of other 
approaches that Members were considering. The United States  wished  to reiterate its views on one 
of the questions presented in Honduras 's non -paper: who decides how to  respond to the situation 
where the term of an Appellate Body member appointed to a division expire d before the report in 
that appeal is signed? The United States ha d reiterated that this was the responsibility of WTO 
Members.  In this regard, the United S tates recall ed that it was the DSB, not the Appellate Body, 
that ha d the authority to appoint Appellate Body members and to decide when their term in office 
had expire d under Articles 17.1 and 17.2 of the DSU.  Accordingly, it was up to the DSB, not the 
Appellate Body, to decide whether a person who was no longer an Appellate Body member c ould 
continue to serve on an appeal. The United States  noted that one of the options listed in the non -
paper would be for the Appellate Body to continue to apply Rule 15  of the Working Procedures for 
Appellate Review .  This would not address the issues that the United States  had been raising for 
over a year.  A solution to the Appellate Body 's abuse of its authority under the DSU w ould require 
Members to exercise their resp onsibility for the system.  Continuing to ignore such abuses – or 
perhaps worse, accommodating or ratifying them – was not tenable. The United States  looked 
forward to continuing to discuss these issues with other Members.   
21.4.   The representative of the Europe an Union  said that the EU wished to  refer to its statements 
made at previous DSB meetings on the issue of Rule 15  of the Working Procedures for Appellate 
Review . The EU consider ed that such a transitional rule was useful, since it allow ed for an orderly 
transition in the case of  appeals for which an outgoing Appellate Body member had begun their work 
and for which they would otherwise need to be replaced. This rule was therefore consistent with an 
orderly and prompt resolution of disputes and preserve d the rights of the parties who participat ed 
in such proceedings. As the EU had stated at previous DSB meetings , the EU  saw no link between 
the issue of Rule 15 of the Working Procedures for Appellate Review  and the issue of appointments  
of new  Appellate Body  members . The discussion on Rule 15 could very well take place without 
delaying the decision on  appointments any further. A fortiori, we see no rationale in blocking the 
launch of the mere AB selection process es. The EU was open to discussio ns that aim ed at resolv ing 
the current crisis.   WT/DSB/M/420  
 
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  21.5.   The representative of China  said that, o nce again, China wished to thank Honduras for placing 
this item on the Agenda of the present meeting, and for Honduras 's efforts to promote further 
discussion on this issue in order to unblock the launch of the AB selection process es. In its non -paper  
contained in document JOB/DSB/2 , Honduras propose d to set up objective and reasonable criteria 
to determine when an outgoing  Appellate Body member should continue to serve on an appeal. In 
general, China believe d that  these criteria were reasonable and agree d with them in general. 
Regarding the issue of who decided  if Appellate Body member s should serve after their four-year 
term expired, it was still unclear to China how the proposed approaches  operate d in practice together 
with the proposed objective criteria. China prefer red to establish objective criteria . China believed 
that once objective criteria were established, the se should apply equally to all outgoing Appellate 
Body members . It seem ed unnecessary to determine  who decide d. China  would continue to consider 
Honduras's non -paper . As Honduras had mentioned, the only solution to the current situation was 
constructive dialog ue and real engagement from all Members. China w ould continue to engage in 
such discussion. China also believe d that the AB selection process es had to  be launched as soon as 
possible in order to ensure the normal operation of the WTO dispute settlement sys tem and to 
safeguard the multilateral trading mechanism.   
21.6.   The representative of the Dominican  Republic  said that the Dominican Republic wished to 
thank Honduras for presenting its non -paper contained in document JOB/DSB/2. This non -paper was  
very useful to address and unblock the current impasse within the Appellate Body. This non -paper 
provide d a good basis since it describe d various options that Members c ould discuss. The Dominican 
Republic was willing to participate in these discussions an d insist ed that it was important to launch 
the AB selection processes independently from these discussions.  
21.7.   The representative of Ecuador  said that Ecuador wished to thank Honduras for its non -paper  
contained in document JOB/DSB/2 . Ecuador support ed the po ssibility of a constructive discussion  on 
the functioning of the Appellate Body. Discussions regarding Rule 15 of the Working Procedures for 
Appellate Review  could yield new elements that could be further examined in relation with the 
functioning of the Ap pellate Body. The two topic s covered by Honduras in its non -paper essentially 
referred to the parameters that govern ed the Appellate Body, namely: until when an Appellate Body 
member c ould continue to serve in that capacity ; and who would decide  on this. Ecuador  believe d 
that th ese topics were a decisive stepping stone in order to unblock the AB selection processes.  
21.8.   The representative of Thailand  said that Thailand wished to thank Honduras for its contribution 
and hard work. Thailand wished to refer to it s previous statement under this Agenda item made at 
the 26 September 2018  DSB meeting, which include d its preliminary comments on Rule 15 of the 
Working Procedures for Appellate Review . Thailand  share d Honduras's view that action was urgently 
needed in ord er for Members to resolve the current impasse. In this regard, Thailand wished to  
reiterate , once again , its willingness to engage in technical discussions on transitional arrangements 
for outgoing Appellate Body members, as well as other areas of concern relating to the Appellate 
Body, with a view to improving the WTO dispute settlement system. Thailand believe d that a 
constructive discussion with all interested Members was crucial for the success of achieving any 
lasting solutions. Thailand  stood ready to  work with Members in order to find a positive way forward.   
21.9.   The representative of Australia  said that Australia wished to thank Honduras for its continued 
contribution to solution -orientated discussions aimed at resolving concerns raised regarding the 
functioning of the Appellate Body. In Australia's  view, Members had to continue to prioriti ze finding 
solutions to resolve the impasse in th e DSB on the selection and appointment of new Appellate Body 
members. As such, Australia  stood ready and willing to engage in discussions which focused on 
finding concrete solutions. This include d matters addressed in Honduras 's non-paper contained in 
document JOB/DSB/2 regarding the transitional arrangements for outgoing Appellate Body 
members. At the DSB meeting of 26 September 2018 , Australia had outlined a series of issues which 
Australia believed  should be considered in the context of addressing such matters. Members ' views 
on the range of issues Australia had  identified could point to a number of possible pathways to 
addressing the concerns that ha d been raised. Greater clarity, particularly from the Member that  
had initiated discussion of this concern, as to what principles it would like to see applied to a solution 
was a critical step to working towards concrete, positive and lasting solutions. For Australia's  part, 
some of the principles which Australia would like to see reflected in a solution included : that 
appropriate transitional arrangements c ould be an effective and practical means to ensure continuity 
and e fficiency in dispute settlement proceedings; that solutions should respect the exclusive 
authority of the DSB under Article 17.2 of the DSU to appoint Appellate Body members; that 
solutions should clarify the application of the collegiality principle in th e event of the application of WT/DSB/M/420  
 
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  transitional rules; that objective criteria could  be a useful tool to provide consistency and clarity to 
the application of transitional rules; that solutions should be prospective and of general application; 
and that the adop tion of Appellate Body reports in accordance with Article 17.14 of the DSU should 
not be compromised. Australia  remain ed open to different forms of solutions, including a DSB 
Decision, amendments to the Working Procedures for Appellate Review and/or amendm ents to the 
DSU. Australia  was ready to engage in future work on this issue with other Members.   
21.10.   The representative of Peru said that Peru  viewed positively and appreciate d the efforts made 
by Honduras . Peru  welcome d the discussion that ha d taken place in th e DSB  on Rule 15  of the 
Working Procedures for Appellate Review . On a preliminary basis, Peru consider ed favourably the 
possibility that: (i) the Appell ate Body members assigned to a d ivision would be  retained, if a hearing 
had already be en held as part of  the appeal procedure; or (ii) that no new appeals were assigned to 
an Appellate Body member whose term w ould expire within 60 days. Peru was  still considering other 
elements of Honduras 's non-paper contained in document JOB/DSB/2 . Peru noted the positions of 
Members and hope d that this dialogue and other initiatives w ould soon lead to the full restoration 
and improvement of the WTO dispute settlement mechanism.   
21.11.   The representative of Japan  said that Japan wished to thank Honduras for its statement and 
non-paper contained in document JOB/DSB/2 . Honduras  had propose d certain decision -making rules 
for the DSB. Japan  appreciate d the concern of Honduras about the potential for any Member to 
intervene in the work of the Appellate Body. However, Japan  was not sure how the DSB c ould apply 
such proposed rules consistent with the DSU. Honduras had also propose d certain objective criteria 
for allowing an outgoing Appellate Body member to continue serving on an appeal after the expiry 
of their term. Objective criteria would be useful not just for maintaining the promptness and 
continuity of ongoing appellate proceedings but also for ensuring the proper use of transitional 
arrangements. In this respect, Members could  also wish to consider the possibilit y of a DSB decision  
of a general and prospective nature, as Australia  had suggested . Japan look ed forward to engaging 
in further discussion s to find a meaningful and lasting solution.   
21.12.   The representative of Canada  said that Canada wished  to thank Honduras for its initiative 
and the additional information it ha d shared at the present meeting  on its objectives for this 
discussion. Given Canada's  shared interest and urgency in ensuring the effective functioning of the 
Appellate Body, Canada  encourage d all Memb ers to take this opportunity to address the concerns 
that ha d been raised. Canada  would be pleased to further discuss this issue in a forum that was 
deemed appropriate by the Chair person  and/or other Members. In its non-paper  contained in 
document JOB/DSB/ 2, Honduras ha d usefully identified a number of potential solutions to concerns 
around Rule 15  of the Working Procedures for Appellate Review .  As Canada had  stated at the 
26 September 2018 DSB meeting, the criteria set out in Section 1 of the non-paper of  (a) whether 
an oral hearing ha d been held; and (b) whether an Appellate Body member was within 60 days of 
the expiry of their term of office would, in Canada 's view, be appropriate to determine when an 
Appellate Body member was eligible to continue to ser ve on cases beyond the expiry of their term.  
Instead of 60 days, a time -period of 90 days could also be envisaged. Regarding Section 2 of the 
non-paper and the issue of who decide d if an Appellate Body member should serve after the expiry 
of their term of  office, although Canada d id not object to the Appellate Body 's use of Rule 15 to date, 
it seem ed clear that the United States now ha d strong objections to this practice. As such, Canada 
believed  that option (b), the proposed application of the reverse con sensus rule, was an option that 
could be further explored. If that d id not resolve the concerns raised by the United States, another 
option would be to have a general and prospective DSB decision taken to authorize the service of 
Appellate Body members whe re certain criteria, such as those outlined in section one of the 
non-paper, were satisfied. It was important that such a decision be general and prospective so that 
the need for a DSB decision to be taken each time this issue ar ose was avoided. Canada  would 
reiterate that vacancies on the Appellate Body, resulting from Members'  failure to launch and 
conclude AB selection process es, was likely to necessitate greater recourse to Rule 15. Indeed, 
Members  had seen such need very recently with the Appellate Bod y's invocat ion of Rule 15 to 
authorize Mr.  Servansing to complete the disposition of seven  appeals to which he had been  
appointed prior to the expiry of his term of office. Again, Canada believed  that the simplest solution 
to reducing reliance on Rule 15 w ould be to unblock the launch of the AB selection process es. And 
as the concerns that ha d been cited as a justification to block the launch of AB selection processes 
were resolved, it would be advisable that Members  work towards establishing the automatic launch 
of AB selection processes so that in the future, chances were minimized of the DSB being confronted 
with a situation where the failure to start AB selection processes threaten ed the effective functioning 
of the WTO dispute settlement system.   WT/DSB/M/420  
 
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  21.13.   The representative of Panama  said that  Panama wished to thank Honduras for its non -paper  
contained in document JOB/DSB/2 which was a concrete contribution that propose d alternative  
solutions  with the aim of facilitating a dialogue on two fundamental topics  related to Rule 15  of the 
Working Procedures for Appellate Review . Panama consider ed that it was necessary that a forum be 
created for analysis and technical discussions over the proposals in Honduras' non -paper  and over 
proposals made by any other Member . Panama  wished to reiterate its willingness to participate in 
any process or initiative on the basis of concrete proposals and options that reflect ed the interests 
of the entire Membership with a view to identifying common solutions that could lead to an 
agreement.  
21.14.   The representative of Korea  said that Korea believed that it was  importan t to foster 
discussion s on the functioning of the Appellate Body. Korea w ould constructively participate in any 
such discussion s.  
21.15.   The representative of Singapore  said that Singapore appreciate d the efforts of Honduras in 
putting up its non-paper contained in document JOB/DSB/2 for the fostering of a discussion on issues 
relating to Rule 15  of the Working Procedures for Appellate Review , given the greater urgency no w 
that there were only three Appellate Body members left. As stated in Singapore's  earlier inter vention  
at the present meeting , Singapore  welcome d and was open to considering proposals and ideas from 
Members in trying to address the impasse . Discussions on  these proposals could be conducted in 
any appropriate format.   
21.16.   The representative of the Bolivarian Republic of Venezuela  said that Venezuela wished to 
thank Honduras for submitting its non-paper contained in document JOB/DSB/2  and for its proactive 
and positive attempt to solve this problem. Venezuela wished t o participate in further discussions  
on this matter .  
21.17.   The representative of Chile said that  Chile wished to thank Honduras for its non -paper 
contained in document JOB/DSB/ 2.  
21.18.   The representative of Brazil  said that Brazil wished to thank Honduras for its contribution to 
the debate. Brazil was ready to engage in any discussions on this issue. This discussion presuppose d 
participation and engagement of the Member that had first raised this concern. Participation in 
listening mode was not enough. The discussion under this item was different from the ones Members 
had had about other more conceptual topics. Members had  the very straightforward task of  search ing 
for appropriate and  concrete criteria that c ould define the moment until when an outgoing Appellate 
Body member c ould serve. Several ideas had been proposed . Any reasonable criteri on could be 
acceptable , as long as it preserve d the independence of the Appellate Body and prev ented undue 
interference in its work . Any solution should also include the automatic launching of AB selection 
process es.  
21.19.   The representative of El Salvador  said that  El Salvador was grateful to Honduras for its 
non-paper contained in document JOB/DSB/2 . This non-paper  was an attempt to seek greater clarity 
in the scope of application of Rule 15  of the Working Procedures for Appellate Review . El Salvador 
was open to continue to discuss this topic.  
21.20.   The representative of Chinese  Taipei  said that as stated a t previous DSB meeting, Chinese 
Taipei  appreciate d Honduras's  non-paper contained in document JOB/DSB/2 . As some delegates ha d 
previously stated at the present meeting, Chinese Taipei  had some questions about how the criteria 
mentioned by Honduras in parag raph 1 of its non -paper would interact  with the selection options 
mentioned in paragraph 2. Chinese Taipei st ood ready to engage constructively with other Members 
to further discuss these issues.  
21.21.   The representative of Honduras  said that Honduras wishe d to thank  all delegations that ha d 
expressed their interest in the non-paper contained in document JOB/DSB/2 . As the Vice -Minister of 
Honduras had stated earlier at the present meeting, Honduras was aware that other Members were 
also working on other propo sals. Honduras urge d those other Members to submit those proposals 
as early as possible. Honduras note d that there were some Members who were asking specific and 
substantive questions  regarding the document that Honduras had submitted . For this reason, and 
as had been stated by many delegations at the present meeting, there was a need for an independent WT/DSB/M/420  
 
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  discussion on this topic in an informal and open -ended meeting.  This discussion should take place 
on the basis of the principle that "nothing is agreed unti l everything is agreed" .  
21.22.   The DSB took note  of the statements.  
__________