RESTRICTED  
  
WT/DSB/M/409  
 
6 June 2018 
(18-3448) Page: 1/21 
Dispute Settlement Body  
28 February 2018    
 
MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 28  FEBRUARY  2018 
Chairman: Mr. Junichi I hara (Japan ) 
Table of Contents  
1   SURVEILLANCE OF IMPL EMENTATION OF RECOMM ENDATIONS ADOPTED BY  
THE DSB ................................ ................................ ................................ ...........................  2 
A.  United  States – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status report by the United  States ................................ ................................ ..............  2 
B.  United  States – Section 110(5) of the US Copyright Act: Status report by the 
United  States  ................................ ................................ ................................ .....................  3 
C.  European  Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European  Union ................................ ................................ ....... 3 
D.  United  States – Anti-dumping and countervailing measures on large residential 
washers from Korea: Status report by the Unite d States  ................................ ..........................  4 
E.  China – Anti-dumping measures on imports of cellulose pulp from Canada: Status 
report by China  ................................ ................................ ................................ ...................  5 
2   UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  
OF 2000: IMPLEMENTATION  OF THE RECOMMENDATIO NS ADOPTED BY THE  DSB ...........  5 
A.  Statement by the European  Union  ................................ ................................ ....................  5 
3   CANADA – ANTI -DUMPING MEASURES ON IMPORTS OF CERTAIN C ARBON 
STEEL WELDED PIPE FR OM THE SEPARATE CUST OMS TERRITORY OF TAI WAN, 
PENGHU, KINMEN AND M ATSU  ................................ ................................ .........................  6 
A.  Statement by the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu .............  6 
4   INDIA – CERTAIN MEASURES REL ATING TO SOLAR CELLS  AND SOLAR 
MODULES  ................................ ................................ ................................ .........................  7 
A.  Recourse to Article  21.5 of the DSU by India: Request for the establishment 
of a panel  ................................ ................................ ................................ ..........................  7 
5   CHINA – ANTI -DUMPING AND COUNTERV AILING DUTY MEASURES  ON 
BROILER PRODUCTS FRO M THE UNITED  STATES: RECOURSE TO ARTICLE  21.5 
OF THE DSU BY THE UN ITED  STATES  ................................ ................................ ...............  8 
A.  Report of the Panel ................................ ................................ ................................ .........  8 
6   EUROPEAN  UNION – ANTI -DUMPING MEASURES ON BIODIESEL FROM 
INDONESIA  ................................ ................................ ................................ ....................  10 
A. Report of the Panel ................................ ................................ ................................ ......... 10 WT/DSB/M/409  
 
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  7   APPELLATE BODY MATTE RS ................................ ................................ ......................  11 
A.  Appellate Body Appointments: Proposal by Argentina; Australia; Plurinational State of 
Bolivia; Brazil; Canada; Chile; China; Colombia; Costa  Rica; Dominican  Republic; 
Ecuador; El  Salvador; the European  Union; Guatemala; Honduras; Hong  Kong, China; 
India; Israel; Kazakhstan; Korea; Mexico; New  Zealand; Nicaragua; Norway; Pakistan; 
Panama; Paraguay; Peru; the Russian  Federation; Singapore; Switzerland;  the Separate 
Customs Territory of Taiwan, Penghu, Kinmen and Matsu; Turkey; Ukraine; Uruguay 
and Viet Nam ................................ ................................ ................................ .................... 11 
8   INDONESIA – IMPO RTATION OF HORTICULT URAL PRODUCTS, ANIMA LS AND 
ANIMAL PRODUCTS  ................................ ................................ ................................ ........  20 
A.  Statement by Indonesia  ................................ ................................ ................................ .20 
 
 
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.180)  
B.  United  States – Section 110(5) of the US Copyright Act: Status report by the United  States 
(WT/DS160/24/Add.155)  
C.  European  Communities – Measures affecting the approval and marketing of biotech products: 
Status re port by the European  Union (WT/DS291/37/Add.118)  
D.  United  States – Anti-dumping and countervailing measures on large residential washers from 
Korea: Status report by the United  States (WT/DS464/17/Add.2)  
E.  China – Anti-dumping measures on imports of ce llulose pulp from Canada: Status report by 
China (WT/DS483/7/Add.1)  
1.1.  The Chairman  noted that there were five sub -items under this Agenda item concerning status 
reports submitted by delegations pursuant to Article  21.6 of the DSU. He recalled that Article  21.6 
of the DSU required that, "Unless the DSB decides otherwise, the issue of implementation of the 
recommendations or rulings shall be placed on the Agenda of the DSB meeting after six  months 
following the date of establishment of the reasonable period of time and shall remain on the DSB's 
Agenda until the issue is resolved". Under this Agenda item, he invited delegations to provide 
up-to-date information about compliance efforts and to focus on new developments, suggestions 
and ideas on progress towards th e resolution of disputes. He also reminded delegations that, as 
provided for in Rule  27 of the Rules of Procedure for DSB meetings, "[r]epresentatives should 
make every effort to avoid the repetition of a full debate at each meeting on any issue that has 
already been fully debated in the past and on which there appears to have been no change in 
Members' positions already on record". He then turned to the first status report under this 
Agenda  item. 
A.  United  States – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status report by the United  States (WT/DS184/15/Add.180)  
1.2.  The Chairman  drew attention to document WT/DS184/15/Add.180, which contained the 
status report by the United  States on progress in the implementation of the DSB's 
recom mendations in the case "US – Hot-Rolled Steel".  
1.3.  The representative of the United  States  said that the United  States  had provided a status 
report in this dispute on 15  February  2018, in accordance with Article  21.6 of the DSU. The 
United  States had addresse d the DSB's recommendations and rulings with respect to the 
calculation of anti -dumping margins in the hot -rolled steel anti -dumping duty investigation at 
issue. With respect to the recommendations and rulings of the DSB that had yet to be addressed, 
the U S Administration would work with the US  Congress with respect to appropriate statutory 
measures that would resolve this matter.  WT/DSB/M/409  
 
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  1.4.  The representative of Japan  thanked the United  States for the latest status report and the 
statement made at the present meeting . Japan called, once  again, on the United  States to fully 
implement the DSB's recommendations and rulings so as to resolve this matter.  
1.5.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular  
meeting.  
B.  United  States – Section 110(5) of the US Copyright Act: Status report by the 
United  States (WT/DS160/24/Add.155)  
1.6.  The Chairman  drew attention to document WT/DS160/24/Add.5, which contained the status 
report by the United  States on progress in the implementation of the DSB 's recommendations in 
the case "US – Section 110(5) Copyright Act ". 
1.7.  The representative of the United  States  said that the United  States  had provided a status 
report in this dispute on 15  February  2018, in accordance with Article  21.6 of the DSU. The 
US Administration would continue to confer with the EU, and to work closely with the US  Congress, 
in order to reach a mutually satisfactory resolution of this matter.  
1.8.  The representative of the European  Union  said that hi s delegation thanked the United  States 
for its status report and its statement made at the present meeting. The  EU referred to its 
previous statements on this matter, and reiterated that it would like to resolve this case as soon as  
possible.  
1.9.  The representative of China  recalled that, in 200 0, the Panel had found that Section  110(5) 
of the US  Copyright did not meet the requirements under Article  13 of the TRIPS Agreement, and 
Article  11bis(1)(iii) and Article  11(1)(ii) of the Berne Convention, which had been incorporated into 
Article  9.1 of t he TRIPS Agreement. Nevertheless, the law in question was still in effect to the 
detriment of the legitimate interests of copyright holders of musical work. China reiterated its 
statements made at previous DSB meetings under this Agen da item. China urged t he 
United  States, once again, to fully implement the DSB's recommendations and rulings by 
amending or withdrawing the said law to meet its obligations under the TRIPS Agreement, which 
set out only the minimum s tandards of protection that WTO  Members were r equired to provide to 
intellectual property right holders.  
1.10.   The representative of the United  States  said that as the United  States  had previously stated, 
China's criticisms were completely unfounded. The intellectual prop erty protection that the 
United  States provided within its own territory equalled or surpassed that of any other Member. 
The United  States indeed found it interesting that the Member that co ntinued to criticize the U S 
commitment to strong intellectual property rights had domestic records of protecting intellectual 
property rights that appeared less than robust.  
1.11.   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.118)  
1.12.   The Chairman  drew attention to document WT/DS291/37/Add.118, which contained the 
status report by the European  Union on progress in the implementation of the DSB's  
recommendations in the case "EC – Approval and Marketing of Biotech Products".  
1.13.   The representative of the European  Union  said that his delegation continued to progress 
with the authorizations where the European Food Safety Authority had finalized its scientific 
opinion and had co ncluded that there were no safety concerns. On 16  January 2018, the draft 
authorizations for one  GM maize1 and the renewal of one  GM maize2 for food and feed had been 
submitted for a vote to the member States Committee, resulting in "no opinion". Thereafte r, they 
had been submitted for a vote to the Appeal Committee on 26  February  2018, also resulting in 
                                                
1 Maize: MON 87427 x MON 89034 x NK603.  
2 Renewal of maize: 59122.  WT/DSB/M/409  
 
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  "no opinion". The Commission would now need to decide on these two authorizations. The EU 
continued to be committed to acting in line with its WTO obligati ons. As stated many times before, 
the EU recalled that the EU approval system was not covered b y the DSB's recommendations and  
rulings.  
1.14.   The representative of the United  States  thanked the EU for its status report and its 
statement made at the present meeting. The United  States noted its continuing concerns that the 
EU measures affecting the approval of biotech products involved prolonged, unpredictable, and 
unexplained delays at every stage of the approval process. These delays had affected the product s 
previously approved by the EU, and continued to affect the dozens of applications stil l awaiting 
approval. The United  States further noted that even when the EU finally approved a biotech 
product, the EU had facilitated the ability of individual EU membe r States to impose bans on the 
approved product. The United  States urged the EU to ensure that its measures affecting the 
approval of biotech products, including measures adopted by individual EU member States, were 
based on scientific evidence, and that d ecisions were taken without undue delay.  
1.15.   The DSB took note  of the statements and agreed  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 report by the United  States (WT/DS464/17/Add.2)  
1.16.   The Chairman  drew attention to document WT/DS464/17/Add.2, which contained the status 
report by the United  States on progress in the implementation of the DSB's  recommendations in 
the case "US – Washing Machi nes". 
1.17.   The representative of the United  States  said that the United  States  had provided a status 
report in this dispute on 15  February  2018, in accordance with Article  21.6 of the DSU. On 
15 December  2017, the United  States Trade Representative had requeste d that the 
US Department of Commerce ma ke a determination under Section  129 of the Uruguay Round 
Agreements Act to address the DSB's recommendations relating to the Department's  
countervailing duty investigation of washers from Korea. On 18  December  2017, the Department 
of Commerce had initiated a proceeding to make such determination. Since that time, the 
Department had issued initial and supplemental questionnaires seeking additional information 
necessary to conduct the Section  129 proceeding. The United  States continued to consult with 
interested parties on options to address the recommendations of the DSB relating to anti -dumping 
measures challenged in this dispute.  
1.18.   The representative of Korea  said that  his country thanked the United  States for its statu s 
report, which had been circulated on 16  February  2018. Korea was of the view that there had been 
hardly any progress in the rec ent status report by the United  States. Korea reitera ted its concern 
with the United  States' delayed implementation in this di spute. Specifically, the United  States had 
stated in its status report that it "continues to consult with interested parties on options to address 
the recommendations of the DSB relating to anti -dumping measures challenged in this dispute". At 
this point, 1 7 months had already passed since the adoption of the Panel and Appellate Body 
Reports in this dispute. Korea found it difficult to comprehend why it had taken so long to start the 
initial implementation stage. Thus, Korea, o nce again, called on the United  States to step up its 
efforts in good faith to ensure prompt compliance with the DSB's recommendations and ruli ngs 
relating to both the United  States' anti -dumping and countervailing duty measures.  
1.19.   The representative of Canada  said that his country also r emained 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 reason able period of 
time, the United  States continued to coll ect cash deposits from Canadian exporters based on a 
methodology that had been found to be "as such" inconsiste nt with WTO obligations in this  
dispute.  
1.20.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular  
meeting.  WT/DSB/M/409  
 
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  E.  China – Anti-dumping measures on imports of cellulose pulp from Canada: Status 
report by China (WT/DS483/7/Add.1)  
1.21.   The Chairman  drew attention to document WT/DS483/7/Add.1, which contained the status 
report by China on progress in the implementation of the DSB's recommendations in the case 
"China – Cellulose Pulp".  
1.22.   The representative of China  said that his country had provided a s tatus report in this 
dispute on 15  February  2018 in accordance with Article  21.6 of the DSU. China intended to comply 
with the DSB's recommendations and rulings within the agreed reasonable period of time, which 
would expire on 22  April 2018. China had lau nched a re -investigation, which was ongoing, and 
interested parties had the possibility to submit their comments.  
1.23.   The representative of Canada  noted that China had indicated to the DSB on 19  June 2017 
that it had intended to implement the DSB's recommendat ions and rulings in this dispute. Canada 
thanked China for its status report at the present meeting with regard to its implementation 
efforts. Canada looked forward to the completion of China's review in the near term and expected 
that a negative injury fi nding, prior to the expiry of the reasonable period of time on 22  April 2018, 
would resolve this dispute.  
1.24.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular  
meeting.  
2  UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFF SET ACT OF  2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE  DSB 
A.  Statement by the European  Union  
2.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European  Union. He then invited the representative  of the European  Union to speak.  
2.2.  The representative of the European  Union  said that, once again, the EU requested that the 
United  States stopped transferring anti -dumping and countervailing duties to the US industry. 
Every disbursement that still took place was clearly an act of non -compliance with the 
DSB's  recommendations and rulings. The EU  renewed its call on the United  States to abide by its 
clear obligation under Article  21.6 of the DSU to submit implementation reports in this dispute. 
The EU would co ntinue to put this point on t he Agenda as long as the United  States did not 
implement the DSB's recommendations and rulings.  
2.3.  The representative of Canada  said that his country thanked the European Union for having 
placed this item on the Agenda of the pres ent meeting. Canada shared the position of the EU that 
the Byrd Amendment dispute should remain under DS B surveillance until the United  States fully 
complied with the DSB's recommendations and rulings.  
2.4.  The representative of Brazil  thanked the EU, once agai n, for keeping this item on the Agenda 
of the DSB. As an original party to the Byrd Amendment dispute, Brazil referred to its previous 
statements on this matter. In particular, with regard to the continuation of illegal disbursements, 
despite allegations t o the contrary, these continued to this day, ten years after the Repeal Act. 
Brazil requested that these disbursements should cease immediately. Brazil  renewed its call on the 
United  States to fully comply with the DSB's recommendations and rulings in this  dispute. Until 
then, the United  States was under the obligation to submit status reports.  
2.5.  The representative of the United  States  said that as the United  States had noted at previous 
DSB meetings, the Deficit Reduction Act, which included a provision repe aling 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 the se disputes. The United  States r ecalled, 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 already explained at 
previous DSB meetings, there was no obligation under the DSU to provide further status reports WT/DSB/M/409  
 
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  once a Member announced that it had implemented the  DSB's recommendations and rulings, 
regardless of wheth er the complaining party disagreed abou t compliance. And as the United  States 
had noted many times previously , the EU had demonstrated repeatedly that it shared this 
understanding, at least when it was the responding party in a dispute. Once again, this mo nth the 
EU had provided no status report for disputes in which there was a disagreement between the 
parties on the EU's  compliance.  
2.6.  The representative of the European  Union  said that the EU disagreed with the last part of the 
statement of the United  States . The EU reminded the DSB that the EU had provided status reports 
on all disputes that had involved the EU as a defending party. For the present meeting, the only 
dispute was "EC – Approval and Marketing of Biotech Products" (DS291).  
2.7.  The DSB took note  of the statements.  
3  CANADA – ANTI -DUMPING MEASURES ON IMPORTS OF CERTAIN C ARBON STEEL 
WELDED PIPE FROM THE  SEPARATE CUSTOMS TER RITORY OF TAIWAN, PE NGHU, 
KINMEN AND MATSU  
A.  Statement by the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu  
3.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
Chinese  Taipei. He then invited the representative of Chinese  Taipei to speak.  
3.2.  The representative of Chinese  Taipei  said that the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu requested this Agenda item for  transparency purposes. Chinese  Taipei 
considered it appropriate to keep the  DSB informed about progress in the implementation of this 
dispute. At the DSB meeting of 22  January  2018, Canada had announced that it had implemented 
the DSB's recommendations and rulings, and had, thus, delivered its last status report in light of 
the completion of its compliance efforts. The agreed reasonable period of time was set to expire on 
25 March 2018. Chinese  Taipei tha nked Canada for announcing its intention to ensure full 
compliance two months prior to the expiry of the reasonable period of time. A bilateral exchange 
of views was, however, ongoing to clarify certain aspects of the measures at issue, and 
Chinese  Taipei reserved it s rights under the DSU. Chinese  Taipei hoped to complete its bilateral 
exchanges with Canada swiftly, with a view of resolving this dispute as soon as possible.  
3.3.  The representative of Canada  said that, as his country had indicated in its statemen t at the 
DSB on 22  January  2018, Canada's amendments to its legislation and to the determinations on the 
relevant measure had brought Canada into compliance with the DSB's recommendations and 
rulings in DS482. Nevertheless, Canada had addressed technical q uestions that Chinese  Taipei had 
posed since that date. Canada remained open to consulting on add itional questions regarding 
its implementation.  
3.4.  The representative of the United  States  said that given Canada's position under Agenda 
item 2 (Byrd Amendment d ispute) in past DSB meetings that the item should remain on the 
DSB Agenda where a complaining party disagreed with a responding party's claim of compliance, 
the United  States would ask Canada whether it could confirm that it would provide a status report 
in this dispute at the next DSB meeting.  
3.5.  The representative of Canada  said that, to respond to the question from the United  States, 
Canada had complied with the DSB's recommendations and rulings. Canada also pointed out that 
Chinese  Taipei had not conteste d that Canada was now in compliance.  
3.6.  The DSB took note  of the statements.  WT/DSB/M/409  
 
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  4  INDIA – CERTAIN MEASURES REL ATING TO SOLAR CELLS  AND SOLAR MODULES  
A.  Recourse to Article  21.5 of the DSU by India: Request for the establishment of a 
panel (WT/DS456/20)  
4.1.  The Chairman  recalled that the DSB had considered this matter at its meeting on 
9 February  2018 and had agreed to revert to it. He drew Members' attention to the communication 
from India contained in document WT/DS456/20, and then invited  the representative of  India to  
speak.  
4.2.  The representative of India said that her country referred to its communication of 
23 January  2018, in which it had requested the establishment of a panel under Article  21.5 of the 
DSU. Therein, India had explained the actions, which it ha d taken, to comply with the 
DSB's  recommendations and rulings. In the 9 February 2018 DSB meeting, India had requested 
the establishment of a panel under Article  21.5 of the  DSU to determine India's compliance with 
the DSB's recommendations and rulings in "India - Solar Cells" (WT/DS456). The United  States 
had objected to India's request at that meeting. India was of the view that in the event of any 
disagreement between the parties with respect to the "existence or consistency with a covered 
agreement of m easures taken to comply with the recommendations and rulings", the logical course 
of action would be to first have recourse to Article  21.5 of the DSU. While India believed that it 
had brought the measures at issue into full compliance with its WTO obligat ions, the United  States 
appeared to disagree. Therefore, India's compliance had to be evaluated by a panel pursuant to 
Article  21.5 of the DSU. India reiterated that it was confident that compliance proceedings 
pursuant to Article  21.5 of the DSU would add ress any doubts regarding India's compliance with 
the DSB's recommendations and rulings, and would thereby nulli fy the need for any DSU 
Article  22.6 proceedings. India, therefore, requested the establishment of a panel, pursuant to 
Article  21.5 of the DSU,  to resolve the disagreeme nt between India and the United  States 
regarding India's compliance with the DSB's recommendations and rulings. India also requested 
that, if possible, the DSB refer the matter to the origin al Panel. India thanked the WTO  Secretar iat 
assisting in this dispute and thanked the DSB for its attention on this matter.  
4.3.  The representative of the United  States  said that, as the United  States  had noted at two prior 
DSB meetings, India had no basis for asserting compliance with the DSB's reco mmendati ons in 
this dispute. The United  States said that, to recall , the DSB found that India's domestic content 
requirement, or DCR, measures for solar cells and modules had breached India's national 
treatment obligations under the TRIMs  Agreement and the  GATT  1994. In its request, India 
claimed that it had complied with the DSB's recommendations in this dispute because it "no longer 
enters into any [Power Purchasing Agreements] involving the DCR measures". India's panel 
request, however, appeared to indic ate that India would, in fact, continue to apply the 
WTO-inconsistent DCR measures contained in Power Purchase Agreements that India had entered 
into b efore December  2016. The United  States did not understand how India could claim 
compliance while it conti nued applying these WTO -incons istent DCR measures. The United  States 
did not see the utility of establishing a compliance panel under these circumstances. The 
United  States had reserved its rights to move forward under DSU Article  22.6 to obtain 
authorizat ion to take countermeasures in relation to India's DCR m easures. However, as the 
United  States had communicated to India o n several occasions, the United  States remained willing 
to work with India to find a bilateral resolution to this dispute witho ut the need for further 
dispute  proceedings.  
4.4.  The DSB took note  of the statements and agreed , pursuant to Article  21.5 of the DSU, to 
refer to the original Panel, if possible, the matter raised by India in document WT/DS456/20. The 
Panel would have standard terms of reference.  
4.5.  The representatives of Canada ; China ; the European  Union ; Indonesia ; Japan ; Korea ; 
Norway ; the Russian  Federation ; Singapore  and Chinese  Taipei  reserved their third -party rights to 
participate in the Panel's proceedings.  WT/DSB/M/409  
 
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  5  CHINA – ANTI -DUMPING AND COUNTERVAILING D UTY MEASURES ON BROI LER 
PRODUCTS FROM THE UN ITED  STATES: RECOURSE TO ARTICLE  21.5 OF THE DSU BY T HE 
UNITED  STATES  
A.  Report of the Panel (WT/DS427/RW and WT/DS427/RW/Add.1)  
5.1.  The Chairman  recalled that at its meeting on 22  June 2016, the  DSB had agreed, pursuant to 
Article  21.5 of the DSU, to refer to the original Panel the matter that had been raised by the 
United  States concerning the implementation by China of the DSB's recommendations and rulings 
pertaining to this dispute. He also re called that the Panel Report contained in documents 
WT/DS427/RW and WT/DS427/RW/Add.1 had been circulated on 18  January  2018 as unrestricted 
documents. The Panel Report was now before the DSB for adoption at the request of the 
United  States. This adoption was without prejudice to the right of Members to express their views 
on the Panel Report.  
5.2.  The representative of the United  States  said that the United  States was pleased to request 
the DSB to adopt the Report of the compliance Pa nel in this dispute. The Un ited States thanked 
the compliance panelists, and the WTO Secretariat that had assisted them, for their work on this 
matter. The United  States was a world leader in broiler chicken production. Prior to China's 
imposition of anti -dumping duties and counterv ailing duties on US broiler products, C hina had 
been one of the United  States' largest markets.  The duties had cost the U S industry billions of 
dollars in lost sales. The DSB would recall that the Panel in the original dis pute had agreed with 
the United  States that China's anti -dumping and countervailing duties measures had suffered from 
significant procedural and substantive deficiencies. The Unit ed States said that, regrettably, China 
had chosen to continue the duties through a re -investigation process th at had also contained 
significant procedural and substantive deficiencies. The key findings by the compliance Panel 
included the following: China had failed to provide US respondents notice of the information that 
MOFCOM had required from China's domestic industry, in br each of Article  6.1 of the Anti -Dumping  
Agreement and Article  12.1 of the SCM  Agreement. China had failed to provide US  respondents 
timely opportunities to see the requests for information that had been made by MOFCOM and to 
prepare presenta tions, in breach of Article  6.4 of the Anti -Dumping  Agreement and Article  12.3 of 
the SCM  Agreement. China had improperly resorted to fact s available for a US  respondent that had 
submitted appropriate and verifiable data, in breach of paragraph  3 of Annex  II and Article  6.8 of 
the Anti -Dumping  Agreement. China had failed to properly allocate costs in calculating US 
producers' cost of production, in breach  of Article  2.2.1.1 of the Anti -Dumping  Agreement. China 
had failed to make a proper injury determinatio n because its pricing analysis had not controlled for 
differences between imported and domestic products, in breach of Articles  3.1 and  3.2 of the 
Anti-Dumping  Agreement and Articles  15.1 and 15.2 of the SCM  Agreement. China had failed to 
make a proper inj ury determination because its analysis of impacts had relied on a flawed 
evaluation of capacity utilization and an irrelevant economic factor, in breach of Articles  3.1 and 
3.4 of the Anti -Dumping  Agreement and Articles  15.1 and 15.4 of the SCM  Agreement. China had 
failed to make a proper injury determination because its causal link analysis had relied on its faulty 
pricing and impact analyses, in breach of Articles  3.1 and 3.5 of the Anti -Dumping  Agreement and 
15.1 and 15.5 of the SCM  Agreement.  
5.3.  In short, the Panel's comprehensive findings supported the view of the United States that  
China should never have imposed the duties, let alone continued them for years following the 
original WTO  findings. As the United  States had noted in the past, this was one of a series of 
disputes involving what appeared to be retaliatory use by China of anti -dumping and 
countervailing duties measures in response to unrelated trade measures adopted by i ts trading 
partners. The United  States was therefore pleased that the DSB was  adopting th is important 
Report. The United  States  hoped China would address the systemic deficiencies that had been 
highlighted in the Report and ensure that all of its anti -dumping and countervailing duties 
investigations comported with its WTO obligatio ns. Yesterday, o n 27 February  2018, China had 
informed the United States that China had decided to terminate the anti -dumping and 
countervailing duties on US broiler products. That news was welcome. The United States was in 
the process of reviewing this in formation . The United  States  looked forward to the prompt 
restoration of market access for high -quality US  chicken products.  
5.4.  The representative of China  said that his country first wished to thank the Article  21.5 Panel 
and the Secretariat for their work. China recognized that the proceeding had been complex and 
had involved a considerable amount of legal and factual issues. Nonetheless, throughout the WT/DSB/M/409  
 
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  proceeding, the Panel had always worked towards keeping the proceedings on track to arrive at a 
result qui ckly and efficiently. China wished to thank the Panel for this. China welcomed the Panel's 
rejection of the US claims concerning Articles  6.9 and 9.4(i) of the Anti -Dumping Agreement. The 
Panel had found that the United  States had not established its claim  that MOFCOM had not 
informed the US interested parties of the essential facts in respect of their dumping margin 
calculations and the respective underlying data from the original investigation and the 
reinvestigation. The Panel had also not found that MOF COM had  been, as claimed by the 
United  States, under an obligation to allow "unknown" exporters, which had not registered for the 
original investigation, to participate in the reinvestigation. The Panel had therefore rejected the US 
position that, in the r einvestigation, MOFCOM had been precluded from establishing a "residual" 
duty rate based on facts available for all other "unknown" exporters, without regard to the 
limitation set forth in Article  9.4(i) of the Anti -Dumping Agreement. China also welcomed t he 
Panel's findings that the claims by the United  States under Articles  6.1.2 and 6.2 of the 
Anti-Dumping Agreement and Article  12.2 of the SCM  Agreement had fallen outside of the Panel's 
terms of reference. In addition, the Panel had rejected ne arly the e ntirety of the United  States' 
claims regarding causation under Article  3.5 of the Anti -Dumping Agreem ent and Article  15.5 of 
the SCM  Agreement, as well as other claims. China regretted that the Panel had found that China 
had failed to comply with the DSB's  recommendations and rulings to "bring its measures into 
conformity" under the Anti -Dumping Agreement and SCM  Agreement. He said that China would 
like to take this opportunity to provide some comments with regard to this finding, which could 
also be of int erest to other WTO  Members at the present meeting. Specifically, China was alarmed 
by one systemic issue in light of the Panel's ruling in this dispute. The Panel had ruled that some of 
China's conduct had been inconsistent with its WTO obligations. Howeve r, the original Panel had 
exercised judicial economy and not examined the alleged WTO -inconsistency in question. The 
consequence of this was worrying because it meant that China has had no opportunity to address 
these alleged inconsistencies prior to the A rticle 21.5 proceedings. Yet, China found it 
fundamentally unfair that it faced a finding of WTO -inconsistency.  
5.5.  China further explained that in the origina l Panel proceedings, the United  States had claimed 
that China had acted inconsistently with Articles  3.4 of the Anti -Dumping Agreement and 15.4 of 
the SCM  Agreement. The Panel had exercised judicial economy and had not ruled, or otherwise 
addressed, these claims. As such, there had been no recommendations by the Panel with regard to 
these claims. China ha d implemented the original Panel Report in good faith and had addressed 
the recommendations, which had actually been made by the original Panel. However, in its 
redetermination, China had not addressed any aspects on which the original Panel had remained 
silent. Thus, China had not taken any action with regard to the claims, for which the Panel had 
exercised judicial economy. In these Article  21.5 proceeding s, the United  States had made almost 
the exact same claim, namely, that China had acted inconsistent ly with Article  3.4 of the 
Anti-Dumping Agreement and Article  15.4 of the SCM  Agreement. But contrary to what had 
happened in the original proceedings, the Article  21.5 P anel had agreed with the United  States and 
had found that China had acted inconsistentl y with its WTO obligations. China believed this could 
lead to systemic problems. First, China had not had an opportunity to address the alleged 
inconsistency. In implementing the original Panel's recommendations, China had not seen the need 
to address thos e issues where the Panel had had made no recommendations. If the Panel had 
found an inconsistency, China would have remedied, or at least would have had an opportunity to 
remedy, such WTO -inconsistency. However, there had been no finding and China could no t know 
that it had to address the claims in question. China was of the view that it was unfair to have a 
ruling of WTO -inconsistency appear for the first time in an Article  21.5 proceeding because the 
responding party would not have had the opportunity to address such finding following the original 
Panel. In other words, the compliance Panel's finding essentially transformed a finding of judicial 
economy by the original Panel into a finding of WTO -inconsistency, albeit late into the process, not 
giving Chin a a chance to address it. In keeping with international law and its WTO obligations, 
China had decided to implement the compliance Panel's decision. China added that, on 
27 February  2018, MOFCOM had issued an announcement t hat it would terminate the 
anti-dumping and countervailing duties on b roiler products from the United  States. China attached 
great importance to the rule -based multilateral trading system, and was confused th at, on the one 
hand, the United  States was expecting the WTO dispute settlement s ystem to continue operating 
"as usual" as in this dispute, whil e on the other hand, the United  States appeared to actively work 
towards undermining the system by blocking the Appellate Body selection proces ses. China called 
on the United  States to make eve ry effort to sustain the WTO's  dispute settlement system. China, 
once again, thanked the Panel and looked forward to continuing its work in building a stro nger 
WTO.  WT/DSB/M/409  
 
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  5.6.  The representative of the United  States  said that with respect to China's purported "alarm" 
regarding what it considered to be certain "unfair" findings by t he compliance Panel, the 
United  States noted that the original Panel had exercised judicial economy on certain US claims , 
taking the view that China would have to re -examine its analysis on account of other findings of 
inconsistency. In the redetermination, China had done nothing  to address the problems and, 
instead, had continued to rely on a flawed and WTO -inconsistent analysis. The fault for that 
decision rested with China, not the compliance Panel. With respect to China's  comments 
concerning the U S position on Appellate Body matters, the United  States would address that issue 
under Agenda item  7. 
5.7.  The DSB took note  of the statements and adopted  the Panel Report contained in 
WT/DS427/RW and  WT/DS427/RW/Add.1.  
6  EUROPEAN  UNION – ANTI -DUMPING MEASURES ON BIODIESEL FROM INDON ESIA  
A. Report of the Panel (WT/DS480/R and WT/DS480/R/Add.1)  
6.1.  The Chairman  recalled that, at its meeting on 31  August  2015,  the DSB had established a 
Panel to examine the complaint by Indonesia in the case "EU — Biodiesel (Indonesia)" (DS480). 
The Panel Report, contained in documents WT/DS480/R and WT/DS480/R/Add.1, had been 
circulated on 25  January  2018 as unrestricted docume nts. The Panel Report was before the DSB 
for adoption at the request of Indonesia. This adoption procedure was without prejudice to the 
right of Members to express their views on the Panel Report.  
6.2.  The representative of Indonesia  said that her country thank ed the Panel and the 
WTO Secretariat for their work during this dispute. The Panel Report had affirmed Indonesia's  
claim in this dispute, namely, that the EU had imposed illegal anti -dumping measures on biodiesel 
from Indonesia. Her country considered it s ignificant that by taking account of the claims and 
evidence, the Panel had not only substantively reaffirmed, but had gone beyond, the conclusions 
of the Report in the dispute "EU – Biodiesel" (DS473). Not only should the costs be based on the 
records of the company and based on the country of origin, but the Panel had also made important 
findings concerning the proper determination of profit, constructed export price and injury. 
Indonesia underscored several specific findings by the Panel. First, profit i n the constructed value 
of Indonesian exporters had been overstated by failing to establish the cap and by failing to heed 
the actual facts on the record evidence. Second, the export price had been wrongly constructed by 
not basing it on the price to the f irst independent customer. Third, injury had been erroneously 
established by failing to establish the existence of significant price undercutting. Indonesia also 
highlighted that the EU had indirectly acknowledged the significance of these inconsistencies 
through its recent withdrawal of Court appeals. Specifically, these Court appeals had sought to 
overturn the judgments of the General Court (EGC) of the EU on the same subject, but had been 
dropped by the European Council almost simultaneously with the cir culation of the Panel Report in 
this dispute. This also highlighted the excellent work of the Panel in discerning the substantive 
aspects of the case, as well their implications and importance. Nonetheless, the Panel's 
disagreement with Indonesia's claim, namely, that provisional duties that had been wrongly 
imposed and collected should be refunded, could have been a clear case for an appeal. However, 
given the present significant strain on the Appellate Body and the fact that the EU had committed 
during th e Panel proceedings that it would work on an actual refund during the implementation 
phase, Indonesia had decided that an appeal was, thus, unnecessary. Indonesia thanked the EU 
for its commitment to refund the erroneously collected provisional duties. Ind onesia hoped that, 
pursuant to Article  21.3 of the DSU, the EU would inform the DSB of its prompt and full 
implementation of the DSB's recommendations and rulings. Indonesia was pleased to have 
inscribed an item on the DSB Agenda requesting for the adoptio n of the Panel Report.  
6.3.  The representative of the European  Union  said that his delegation thanked the Panel and the 
Secretariat for their work on this case, and acknowledged the time and effort dedicated to this 
dispute. The EU was pleased that the Panel ha d rejected a number of Indonesia's claims of 
WTO-inconsistency with regard to the EU regulation imposing anti -dumping duties on imports of 
biodiesel from Indonesia. Regarding the Panel's findings reproducing the Appellate Body's findings 
in "EU – Biodiesel " (DS473), the EU referred to its statement made at the DSB meeting on 
26 October  2016. Specifically, the EU took note of the Panel's and Appellate Body's clarification 
that Article  2.2 of the Anti -Dumping Agreement and Article  VI:1(b)(ii) of the GATT  1994 did not 
preclude an investigating authority from using information on the cost of production "in the WT/DSB/M/409  
 
- 11 - 
 
  country of origin" from sources outside the country as long as this information was apt or capable 
of yielding a cost of production in the country of orig in. Regarding the other findings of the Panel, 
the EU took note of the Panel's clarifications, which were relevant for the specific circumstances of 
the case. In particular, the EU regretted that the Panel had rejected the EU's claim that the phrase 
"profi ts normally realized", within Article  2.2.2(iii) of the Anti -Dumping Agreement, permitted an 
investigating authority to disregard data on sales that were not considered compatible with normal 
commercial practice. The EU intended to comply with its WTO obli gations and with the DSB's  
recommendations and rulings that would be adopted at the present meeting.  
6.4.  The DSB took note  of the statements and adopted  the Panel Report, contained in 
WT/DS480/R and  WT/DS480/R/Add.1.  
7  APPELLATE BODY MATTE RS 
A.  Appellate Body A ppointments: Proposal by Argentina; Australia; Plurinational State 
of Bolivia; Brazil; Canada; Chile; China; Colombia; Costa  Rica; Dominican  Republic; 
Ecuador; El  Salvador; the European  Union; Guatemala; Honduras; Hong  Kong, China; 
India; Israel; Kazakhsta n; Korea; Mexico; New  Zealand; Nicaragua; Norway; Pakistan; 
Panama; Paraguay; Peru; the Russian  Federation; Singapore; Switzerland; the Separate 
Customs Territory of Taiwan, Penghu, Kinmen and Matsu; Turkey; Ukraine; Uruguay and 
Viet Nam (WT/DSB/W/609/Rev. 2) 
7.1.  The Chairman  said that this item was placed on the Agenda of the present meeting at the 
request of Mexico, on behalf of several delegations. He drew Members' attention to the proposal 
contained in document WT/DSB/W/609/Rev.2 and invited the representative of Mexico to  
introduce the proposal.  
7.2.  The representative of Mexico  said that the following delegations: Argentina; Australia; 
Plurinational State of Bolivia; Brazil; Canada; Chile; China; Colombia; Costa  Rica; Dominican 
Republic; Ecuador; El  Salvador; the European  Union; Guatemala; Honduras; Hong  Kong, China; 
India; Israel; Kazakhstan; Korea; Mexico; New  Zealand; Nicaragua; Norway; Pakistan; Panama; 
Paraguay; Peru; the Russian  Federation; Singapore; Switzerland; the Separate Customs Territory 
of Taiwan, Penghu, Kinmen a nd Matsu; Turkey; Ukraine; Uruguay and Viet  Nam, had agreed to 
submit a joint proposal to launch the selection processes for the vacancies of the Appellate Body 
members. Mexic o, speaking on behalf of the 63  Members, wished to state the following. The 
considerable number of Members submitting this joint proposal reflected the common concern 
about the current situation in the Appellate Body, which was seriously affecting the WTO's work 
and the overall functioning of the dispute settlement system and was again st the best i nterest of 
WTO Members. The WTO  Members had a responsibility to safeguard and preserve the Appellate 
Body, the dispute settlement system and the multilateral trading system. Thus, it was the 
Members' duty to launch the selection processes for new Appellate Body members, as set out in 
the proposal submitted to the DSB. This proposal sought to, first, start the three selection 
processes, namely, one to replace Mr. Ricardo Ramírez -Hernández, whose second term of office 
had expired on 30  June 2017;  a second process to fill the vacancy that had arisen with the 
resignation of Mr. Hyun Chong Kim with effect from 1  August  2017; and a third process to replace 
Mr. Peter Van den Bossche, whose second term expired on 11  December  2017. Second, to 
establish a  Selection Committee. Third, to set a 30 -day deadline for the submission of candidacies. 
Fourth, to request that the Selection Committee circulate its recommendation within 60 days after 
the deadline for the nomination of candidates. While the proponents w ere flexible with regard to 
the deadlines for the selection processes, these should, howe ver, reflect the urgency of the  
situation.  
7.3.  The representative of the European  Union  referred to the statements made by the EU on this 
matter in past DSB meetings since  February  2017. With each passing month, the gravity and 
urgency of the situation increased. WTO  Members had a shared responsibility to resolve this issue 
as soon as possible. The EU thanked all Members that co -sponsored the proposal, and invited all 
other  Members to endorse this proposal, so that the new Appellate Body appointments could be 
made as soon as possible.  
7.4.  The representative of the United  States  said that the United  States thanked the Chairman for 
his continued w ork on these issues. The United  States was not in a position to support th e WT/DSB/M/409  
 
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  proposed decision. The United  States had listened carefully to the interventions of other Members 
at the last meeting and appreciated the willingness expressed by some Members to engage on the 
important issu es and concerns that the United  States had raised. However, the DSB had yet to 
take any action to address the problem of persons continuing to hear appeals well after their terms 
of appointment, as set by the DSB, had expired. One former Appellate Body member con tinued to 
serve on an appeal, despite ceasing to be a member of the Appellate Body eight months ago. 
Another former member continued to serve on five appeals, more than any actual Appellate Body 
member, despite ceasing to be a member of the Appellate Body in December  2017. The 
representative of the United  States said that  some WTO  Members may be comfortable with this 
situation, but it was not legal under the WTO's  multilaterally agreed rules. Under the DSU, it was 
the DSB that had the authority to appoint A ppellate Body members and to decide when their term 
in office expired. 3 It would also be for the DSB to decide whether a person who was no longer an 
Appellate Body member could continue to serve on an appeal. The Appellate Body simply did not 
have the auth ority to "deem" someone who was not an Appellate Body member to be an Appellate 
Body member.  Appoint ing Appellate Body members, or determining that a private individual could 
nonetheless serve on an a ppeal, was not a power that WTO  Members had assigned to the 
Appellate Body.  
7.5.  The United  States had heard a few Members say that Rule  15 did not raise any legal concerns 
for them because the DSU did provide to the Appellate Body the authority to establish its working 
procedures, or because it represented long -standing practice. Those assertions, however, were in 
error. Neither the Appellate Body's authority to draw up its Working Procedures nor "practice" 
could amend the DSU. As the Appellate Body itself had noted many years ago, "Although panels 
enjoy some discre tion in establishing their own working procedures, this discretion does not 
extend to modifying the substantive provisions of the DSU. To be sure, Article  12.1 of the DSU 
says: 'Panels shall follow the Working Procedures in Appendix  3 unless the panel deci des otherwise 
after consulting the parties to the dispute'. Yet that is all that it says. Nothing in the DSU gives a 
panel the authority to disregard or to modify other explicit provisions of the DSU ".4 Just as a panel 
may not disregard or modify the DSU t hrough adoption of its working procedures, so too the 
Appellate Body may not disregard or modify the DSU through its working procedures. Similarly, 
the fact that the Appellate Body had taken the same action repeatedly did not change the rules in 
the DSU. T he DSU set out the multilaterally agreed rules for WTO dispute settlement. If those 
rules were to be modified, this could only occur through agreement of all WTO  Members.  
7.6.  The United  States also recalled that the Appellate Body provided Members with a Backg round 
Note on Rule  15.5 As the United  States had noted previously, that communication appeared to 
raise more questions than it answered. In several respects, this document failed to provide a 
correct or complete presentation and therefore did not contribute to Members' consideration of this 
issue. First, the Appellate Body nowhere addressed the legal basis for including Rule  15 in working 
procedures that otherwise related to the consideration of appeals by Appellate Body members, not 
persons who were not Appellate Body members. Nor did the  document address how continued 
service by a n ex-Appellate Body member related to the DSB's  appointment decision under 
Article  17 of the DSU. Instead, the Appellate Body appeared to rely on policy considerations of 
efficient functioning. Second, the Appellate B ody asserted that "[u]ntil recently, the application of 
Rule 15 has never been called into question by any participant or third participant in any appeal, 
nor has it been criticized by any Member in the DSB when an Appellate Body report signed by an 
AB mem ber completing an appeal pursuant to Rule  15 was adopted by the DSB".6 Unfortunately, 
the Appellate Body appeared to have very carefully crafted this language in a manner to avoid 
mentioning that in fact Rule  15 had been "criticized by [a WTO]  Member in th e DSB" and had been 
"called into question" at the time of its adoption. That WTO  Member had stated explicitly that 
Rule 15 had raised a "systemic concern" and "was contrary to Article  17.1 of the DSU".7 The 
                                                
3 Understanding on Rules and Procedures Governing the Settlement of Disputes,  Articles 17.1, 17.2 . 
4 Appellate Body Report, "India – Patent Protection for Pharmaceutical and Agricultural Chemical 
Products ", WT/DS50/AB/R, para. 92.  
5 Background Note on Rule  15 of the Working Procedures for Appellate Body Review: Communication 
from the Appellate Body (JOB/AB/3) ( 24 November  2017) ( "Background Note "). 
6 Background Note, para. 2 . 
7 DSB Meeting Minutes for 21 February  1996 at 12 (WT/DSB/M/11) ( 19 March  1996): India raised "a 
systemic concern with regard to Rul e 15 which implied that the Appellate Body could authorize a member to 
continue to be a member after it ceased to be a member. This was contrary to Article  17.1 of the DSU which, 
inter alia, provided that a standing Appellate Body shall be established by t he DSB and that it shall be 
composed of seven persons. Rule  15 would lead to a situation where the Appellate Body could consist of more WT/DSB/M/409  
 
- 13 - 
 
  omission of this statement from the Appellate Bod y Background Note (JOB/AB /3) was misleading 
at best. WTO  Members deserved to be fully informed of the facts, including that Rule  15 had been 
a serious concern from the very beginning. Third, the Appellate Body stated that Rule  15 "as 
initially conceived wa s intended to apply for relatively short periods of transition".8 If this was the 
case, the Appellate Body had acted inconsistently with its own understanding of this provision in 
the past, not just the present. In some cases, an Appellate Body member had been appointed to a 
division shortly before their term had ended. In one case, the Appellate Body member had been 
appointed to a division just three days before the term had ended, meaning almost the entirety of 
the appeal had been expected to occur after the individual had ceased to be a member.9 
7.7.  Fourth, it was misleading for the Appellate Body Background Note to analogize to the rules of 
"some international tribunals" that remained unnamed.10 The rules for those other tribunals were 
based on their constitu tive texts. For example, the transition rule for the International Court of 
Justice was set out in its Statute, which was annexed to and an integral part of the United Nations 
Charter.11 Unlike for those other tribunals, Rule  15 was not set out in the DSU a nd had not been 
agreed by WTO  Members. Fifth, it was not clear from the communication whether the outgoing 
Appellate Body member participated in the Appellate Body's decision to "deem" them to be an 
Appellate Body member after their term expired. Rule  15 applied to a person "who ceases to be" a 
member. But some Appellate Body decisions authorizing a person to continue to work on an appeal 
had been taken prior to the expiry of that person's term of appointment. This raised the question 
whether the Appellate Body's decision under Rule  15 would be affected by that person's 
participation in that very decision.  
7.8.  Sixth, the Appellate Body indicated that a new Appellate Body member was not permitted to 
participate in the exchange of views of an appeal involving a fo rmer Appellate Body member.12 The 
Note did not explain what was the legal basis for denying a legitimate Appellate Body member, 
appointed by the DSB, the ability to participate in the exchange. Rule  4(3) of the Working 
Procedures for Appellate Review stated  that "the division responsible for deciding each appeal shall 
exchange views with other [Appellate Body] Members before the division finalizes the appellate 
report for circulation to the WTO  Members".13 It appeared that the Appellate Body could be 
treating  a Rule  15 situation as an exception to Rule  4(3), without having amended the Appellate 
Body Working Procedures. These were but some of the questions raised by the communication 
addressed to WTO  Members. As we had stated before, the Appellate Body simply d id not have the 
authority to deem someone who was not an Appellate Body member to be a member. It was the 
DSB that had a responsibility under the DSU to decide whether a person whose term of 
appointment had expired shou ld continue serving. The United  State s was resolute in its view that 
Members needed to resolve that issue first before moving on to the issue of replacing such a 
person. The United  States therefore would continue its efforts and its discussions with Members 
and the Chairman to seek a solution  on this important issue.  
7.9.  The representative of Canada  said that his country deeply regretted that the DSB had been 
unable to fulfil its legal obligation under DSU Article  17.2 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 three current vacancies. Canada was 
pleased to join the proposal submitted by more than 30  delegations and urged the DSB to adopt it 
without further d elay. Like other Members, Canada w as disappointed that the United  States had 
                                                                                                                                                  
than seven members or an Appellate Body member continued after the expiry of his term without the approval 
of the DSB. W hile the practical need for the provision contained in Rule  15 was understandable, he would be 
seriously concerned if a member of the Appellate Body could continue without concurrence or approval by the 
DSB. This Rule provided for notification to the DSB i nstead of approval and therefore was in violation of 
Article  17.1 of the DSU ". 
8 Background Note, para. 6.  
9 Communication from the AB Secretariat to the DSB Chair ( 29 May 2008) (related to continued service 
by one person in "US – Continued Suspension " (WT/DS320) (AB -2008-5) and "Canada – Continued 
Suspension " (WT/DS321) (AB -2008-6)). 
10 Background Note, para. 3.  
11 Statute of the International Court of Justice, Art.  13(3) ( "The members of the Court shall continue to 
discharge their duties until their places have been filled. Though replaced, they shall finish any cases which 
they may have begun. "); UN Charter, Art.  92 ("The International Court of Justice shall be the principal judicial 
organ of the United Nations. It shall function in accordance with t he annexed Statute, which is based upon the 
Statute of the Permanent Court of International Justice and forms an integral part of the present Charter. "). 
12 Background Note, para. 4.  
13 Working Procedures for Appellate Review, WT/AB/WP/6, Rule 4(3) (16 Augus t 2010).  WT/DSB/M/409  
 
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  linked the start of the Appellate Body selection processes to the resolution of certain proc edural 
concerns that the United  States had raised. At the p revious DSB meeting, the Uni ted States had 
remarked that it "is resolute in it view that Members need to resolve [the Rule  15] issue before 
moving on the issue of replacing [outgoing Appellate Body members]". Canada appreciated the 
additional explanations, which had been provided by the United States at the present meeting, 
about its concerns. Canada invited the United  States to engage in discussions with interested 
Members with a view to expeditiously developing a solution to the concerns that the United  States 
had raised. Canada rem ained committed to working with other intereste d Members, including the 
United  States, with a view to finding a way to address those concerns so as to allow the selection 
processes to start and be completed as soon as possible.  
7.10.   The representative of Panama  said that her country thanked the Chairman for his report and 
his efforts in holding consultations with Members on this matter. Panama was concerned that, 
since the previous regular DSB meeting, this issue had not been resolved. Panama therefore 
regretted  that, at the present meeting, Members had to raise this matter, once again, in the hope 
that delegations that had expressed concerns would demonstrate flexibility and approach this 
matter constructively. This situation did not only affect the dispute sett lement system, but also the 
trade interests of all WTO  Members who, through this system, asserted their rights and sought 
compliance with their obligations and commitments. The delay in filling the Appellate Body 
vacancies was affecting the dispute settlem ent system, which had already been overloaded with 
disputes. This resul ted in financial losses for WTO  Members and had a major  impact on 
WTO Members' economies, having to wait even longer for the settlement of trade disputes. 
Panama was of the view that th ere was no reason to continue delaying the launch of the selection 
processes to fill the three vacancies in the Appellate Body. Panama therefore supported the 
statement made by Mexico, on behalf of over 60  co-sponsors, which proposed that the launch of 
the selection processes be treated as a matter of urgency. Panama also supported the statement 
that Colombia would make, on behalf of the GRULAC countries.  
7.11.   The representative of Colombia , speaking on behalf of the GRULAC countries, said that the  
WTO was under going a delicate period due to the blockage with regard to the Appellate Body 
selection processes. At the outset, Colombia wished to acknowledge the Chairman's efforts to seek 
a solution to the current problem, and thanked the Chairman for the opportunitie s that he had 
provided to Members to exchange views on this matter. Colombia reiterated its deep concern 
about the present situation, which affected the functioning of a key WTO body. If this problem 
prevailed without resolution, it would bring about the p aralysis of the Appellate Body in the near 
future. This would, in turn, put the entire dispute settlement system at risk. With the continued 
delay in launching t he selection processes, the WTO  Membership was failing to comply with an 
existing mandate, and thus, breached its legal obligations under a covered agreement. This had 
serious systematic consequences and set a bad precedent for the WTO. This situation caused 
damage and affected the image and credibility of the WTO; in particular, given the complex 
international environment that was adversely affecting the multilateral trading system. Concerns 
had been raised regarding the functioning of the dispute settlement system and some specific 
issues regarding the decision -making process. These concerns had be en linked to, present and 
future, Appellate Body vacancies, and thus, barred the WTO  Membership from meeting its legal 
obligation. The proper functioning of the system should not be undermined because the concerns 
of some Members had not been addres sed. Co lombia called on the WTO  Membership to 
understand the gravity of a continued blockage. The selection processes should be delinked from 
unrelated concerns and should be addressed on the basis of their own merit. In this regard, 
Colombia urged WTO  Members to  find a so lution that would allow the WTO  Membership to meet its 
legal obligation. Colombia requested the Chairman to continue to seek a solution on this matter.  
7.12.   The representative of Norway  said that her country fully endorsed Mexico's statement. 
Norway a lso welcomed the new co -sponsors of the proposal. Norway was deeply concerned about 
the situation in the Appellate Body, and believed that it was essential to launch the selection 
processes to fill the present vacancies on the Appellate Body. There was no doubt that the WTO  
depended on the Appellate Body that functioned well. Norway referred to its previous statements 
and reiterated that it remained open to engage in a constructive dialogue with WTO  Members to 
resolve any concerns that had been raised about  the Appellate Body. Nonetheless, Norway was not 
ready to allow the current system to be at risk and, therefore, encouraged  all WTO  Members to 
prevent a serious crisis in the Appellate Body. In th is regard, Norway urged the WTO  Membership 
to support the im mediate launch of the Appellate Body selection processes.  WT/DSB/M/409  
 
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  7.13.   The representative of Australia  said that her country continued to support the proposal to 
commence the selection processes to fill current vacancies on the Appellate Body as a matter of 
priority. Australia looked forward to the proposal receiving further support from the WTO  
Membership. Australia referred to its previous statements made before the DSB on this matter and 
continued to encourage all WTO  Members to work together to build trust, exercis e the necessary 
flexibility and show commitment to find a mutually acceptable way forward.  
7.14.   The representative of Brazil  said that most of what had to be said about this Agenda item 
seemed to have already been said in the fourteen  months that the WTO  Member ship had been 
discussing this matter in the DSB. The concerns with Rule  15 of the Working Procedures for 
Appellate Review, if they had ever really been the problem, could have been resolved a long tim e 
ago, especially if the United  States had engaged in th e discussions and submitted  concrete 
proposals. The United  States, in its statement and in reference to the issue of mandates, had 
mentioned Article  17.2 of the DSU, while omitting Article  17.1, which established the Appellate  
Body as a body composed of se ven persons, and Article  17.9, wh ich attributed to the Appellate  
Body the authority to draw up its own working procedures. Brazil welcomed the new co -sponsors 
of the joint proposal, namely, Bolivia, Ind ia and Israel. The number of co -sponsors amounted to  64 
now, of diverse regions, making it a very repr esentative proposal. As the WTO  Membership 
seemed to be inexorably, albeit inexplicably, approaching the paralysis of the Appel late Body that 
23 years ago WTO  Members had designed and helped thrive, Brazil wo uld like to extrapolate for a 
moment the issue of the selection processes and make two general comments.  
7.15.   First, Brazil inv ited WTO  Members to contemplate on the potential absence of the Appellate 
Body, rather than on its presence, as a cornerstone of the dispute settlement system. Without the 
Appellate Body, the scenario would be the following, after the issuance of a panel report, there 
would be no appeal or review stage available in cases where one or several of the parties consider 
the report to lack so lid reasoning. In a complex, important matter, there would be no opportunity 
to get a second assessment, which was almost an expected objective in cases, which dealt with 
strategic issues like industrial policy, public hea lth and domestic subsidies. WTO  Members would 
have to convince domestic private and governmental stakeholders to undertake serious changes in 
legislation on the basis of decisions, which had been taken by only one instance, which, in certain 
cases may have failed to make the proper assessm ent. In the situation of having different 
interpretations given by panels to similar cases, there would be no further adjudicatory instance to 
harmonize them. What could serve right in one case as a complainant, could come back to haunt 
the same Member as a defendant. From a systemic but also from a pragmatic point of view, it 
made sense to have the best possible decision, based on solid reasoning and interpretation of the 
legal provisions. Without a permanent Appellate Body, the independence of members sel ected by 
consensus would disappear. Appellate Body members were selected to decide a particular case 
irrespective of their nationality, while at the panel level, a panelist more than often may be 
objected in future cases if one of the parties was displease d with the outcome. Thus, in the 
absence of the Appellate Body, the WTO would be back to the GATT times. History books of that 
era could demonstrate that the features just described had been exactly those that Members had 
sought to fix and improve, and whi ch had finally been reflected in the DSU. Although further 
improvement was always possible, it seemed that dismantling the Appellate Body would take us 
back to the past. Brazil asked the DSB w hether this was really what WTO  Members wanted.  
7.16.   A second point t hat deserved reflection by Members was whether or not an argument, which 
was frequently repeated in the recent past, merited any credit. There was the position that the 
Appellate Body was overstepping its duties when it "interprets" the trade agreements an d when it 
created jurisprudence, instead of simply "applying" the provisions. This assertion did not cease to 
appal  legal scholars because it presupposed that a panel or the Appellate Body acted in a vacuum, 
where there was only one crystal clear meaning i n any given provision. If this had been so, then 
there would have not been any disputes, and provisions of the WTO Agreement would be 
"producing their effects smoothly over time". There seemed to be provisions that appeared to work 
like that. In practice, however, the 540 cases, which had been initiated thus far, indicated that 
dispu tes arose precisely because WTO  Members defended different, competing interpretations 
about the same provision. As WTO  Members had established in Article  3.2 of the DSU, panels and 
the Appel late Body were tasked, when WTO  Members claimed and argued conflicting 
interpretations, to clarify the existing provisions in accordance with the customary rules of 
interpretation of public international law. It was interpretation that gave a voice to the legal 
provision; it was interpretation that allowed the specific provi sion to reveal its meaning. WTO  
Members had been very much aware of that when they h ad defined the scope of the WTO  dispute WT/DSB/M/409  
 
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  settlement system in Article  3.2 of the DSU. Any adjudicator under the DSU would have, in any 
given dispute, to assess, discern and find what claims were justified and which ones had no 
foundation at all, or more than often, would have to weigh between claims, which had varying 
degrees of legal merit. Th e conclusion from the above was that some of the criticism regarding the 
Appellate Body was not so much about specific behavioural aspects of how the Appellate Body 
operated, such as with regard to Rule  15, but rather revealed uneasiness about the very exi stence 
of the Appellate Body. The Appellate Body could evolve and be improved in different ways. 
However, its essential structure could not withstand, without ceding under the weight of internal 
contradictions, the attempt to change its very nature, which was typical and common for all 
second instance adjudicating bo dies. It had to be clear to WTO  Members that if the ultimate 
purpose of the current impasse was the transformation of the Appellate Body into something it had 
not been conceived for, then WTO  Members should change the title of the present debate from 
"Appellate Body Matters" to "Alternatives to the Current Appellate Body". Brazil did not believe 
that the DSB wished to engage in this. On the contrary, there was the clear need by all 
participants i n the dispute settlement system to count on a fully functioning and independent 
Appellate Body. It seemed the time had come for WTO  Members to restore the Appellate Body to 
its full capacity.  
7.17.   The representative of Japan  thanked the co -sponsors for the prop osal to launch the 
selection processes to fill the three vacancies in the Appellate Body. Japan supported the proposal. 
The DSB was, yet again, unable to launch the selection processes. Currently seven appeals were 
pending before the Appellate Body, of whi ch one appeal had been initiated in 2016 and the 
remaining six in  2017. Of those seven pending appeals, the oral hearings were yet to take place 
for four appeals. For instance, as for the two appeals initiated in September 2017, the oral 
hearings were not scheduled until May and June  2018, respectively. New appeals were expected, 
all of which had to be assigned to any three members of the Appellate Body who totalled at 
present four. This would mean that any new appeals could be further delayed and could tak e a 
number of months to complete and would very likely exceed a year. The WTO  Membership was 
creating a situation, whereby a losing party at the panel stage could hinder the whole process and 
further delay the implementation of the DSB's recommendations an d the ultimate resolution of the 
dispute, by filing an appeal irrespective of merits of its case. Such situation was unacceptable and 
inappropriate and contradicted the very principle for a prompt settlement of disputes, as enshrined 
in the  DSU. Japan emph asized, once again, that it was the responsibility of the entire WTO  
Membership, acting as the DSB, to ensure the proper functioning of the dispute settlement system 
in a manner consistent with the DSU. To resolve an issue it was necessary to have a clear 
understanding of what the actual issue was. The more specific the question was, the easier it was 
to find a possible solution. In previous DSB meetings and at the present meeting, the 
United  States had raised concerns with regard to Rule  15 and indicated i ts concerns as the basis 
for its position not to support the launch of the selection processes. For instance, at the DSB 
meeting of 22  January  2018, the United  States had stated "It is the DSB that has a responsibility 
under the DSU to decide whether a per son whose term of appointment has expired should 
continue serving. The United  States is resolute in its view that Members need to resolve that issue 
first before moving on to the issue of replacing such a person". At the same meeting, the 
United  States had  also questioned the applications of Rule  15 and their consequences and had 
asked "is this reasonable or appropriate?" The issue, which the  United  States viewed that 
"WTO  Members need to resolve  … first before moving on to the issue of" the selection proce sses, 
appeared to be confined to the legal question associated with Rule  15 and the "reasonableness" or 
"appropriateness" of the way Rules  15 applied under the current circumstances of the WTO dispute 
settlement system. Leaving aside the modality or sequen ce of the issues to be addressed, as 
reported by the Chairman at the DSB  meeting of 22  January  2018, these were precisely the issues 
several concerned delegations were debating and for which they sought a solution. Japan was of 
the view that the question o f how to ensure the proper functioning of the Appellate Body during a 
time of "transition" was a common thread of the concerns linked to Rule  15 and the start of the 
selection processes. This was indeed a good opportunity for the DSB to clarify and improve  
transitional arrangements for the Appellate Body in a manner consistent with the D SU. Japan 
noted that the United  States had acknowledged "a willingness of delegations to work together on 
this issue to find a way forward" and had stated "We  … will continu e our efforts and our 
discussions with Members and with the Chair[man] to seek a solution on this important matter". 
This was t he statement made by the United  States on  22 January  2018 and the United  States 
made a similar statement at the present meeting. Japan welcom ed the engagement by the 
United  States and reiterated that Japan would continue to work with other interested delegations 
to assist the DSB in this common  endeavour.  WT/DSB/M/409  
 
- 17 - 
 
  7.18.   The representative of Israel  said that his country thanked the Chairman for hi s efforts and 
supported the statement and proposal, which had been introduced by Mexico, on behalf of the 
co-sponsors. Israel referred to its previous statements on this matter, and reiterated, once again, 
its call for a prompt launch of the Appellate Body  selection processes. A delay to do so had serious 
systemic repercussions. Israel was open, willing and committed to address any concerns any 
Member would have in relation to the functioning of the Appellate Body, but underscored that this 
should not stand  in the way of launching the selection processes.  
7.19.   The representative of Singapore  reiterated his country's serious systemic concerns on the 
lengthy delays in launching the Appellate Body selection processes. Singapore had co -sponsored 
this joint proposal t o launch the selection processes since its introduction at the November  2017 
DSB meeting. The growing number of co -sponsors since then indicated the increasing concern that 
WTO Members had over this impasse. Singapore noted that a third vacancy in the Appe llate Body 
had arisen in December  2017. Given its heavy workload and significance, a fully -staffed Appellate 
Body was crucial to the proper functioning of the WTO dispute settlement system. To this end, it 
was essential that the vacancies in the Appellate Body be expeditiously filled. Systemic concerns, 
which had been raised, could be discussed in a separate process. Singapore stood ready to  engage 
constructively with WTO  Members and the Chairman to help resolve this impasse.  
7.20.   The representative of Turkey  said that his country thanked the United States for having 
shared its concerns with regard to the Appellate Body. Turkey endorsed the statement made by 
Mexico, on behalf of the co -sponsors of the proposal to launch the AB selection processes. Turkey 
recalled  that at the DSB meeting of 22  January  2018 this issue was raised and reiterated Turkey's 
position that the concerns raised by the United States with regard to the Appellate Body should be 
dealt with separately and should not block the launch of the select ion processes to fill the three 
vacant AB positions. Turkey shared the concerns expressed by a number of Members at the 
present meeting, and noted that if the selection processes were further delayed, more concerns 
with regard to the functioning of the App ellate Body could emerge. For this reason, Turkey 
believed that the selection processes had to be launched without further delay.  
7.21.   The representative of China  said that his country welcomed the new co -sponsors of the 
proposal on AB appointments. China reiterated that the growing number of co -sponsors of the 
joint proposal demonstrated the increasing concern among the WTO  Membership over the present 
impasse. Chi na invited all other WTO  Members to support the proposal so that the vacancies could 
be filled as soon as possible. China had listened carefully to th e statements made by the 
United  States. It seemed that the United  States continued to use the blockage as a leverage to 
achieve its short -term policy objectives. China regretted that the selection processes could not be 
launched at the present DSB meeting as a result of the US action. China shared the concerns 
expressed by the previous speaker s other than the United  States and referred to its previous 
statements under this Agenda item. Although China remained open to engage in the discussion on 
Rule 15 of the Working Procedures for Appellate Review, China did not share the US view that this 
rule raised any conc erns. As China had previously stated, a careful reading of the DSU suggested 
that the Appellate Body was acting precisely within its mandate, in including Rule  15 of the 
Working Procedures for Appellate Review. China held this position for two reasons. Fir st, Rule  15 
applied only to "[a] person who ceases to be a Member of the Appellate Body", and therefore, did 
not extend the terms of the Appellate Body members. Second, a past DSB decision supported the 
inclusion of Rule  15 in the Working Procedures for Ap pellate Review. Rule  14 of Establishment of 
the Appellate Body (WT/DSB/1), which had been adopted by the DSB in 1995, provided that 
"Matters such as guaranteeing the rotation required by the DSU…should form part of the working 
procedures". By allowing the Appellate Body members, whose terms had expired, to finish the 
cases to which they had previously been assigned, Rule  15 clearly guaranteed the rotation 
required by the DSU, and should, thus, form part of the Working Procedures for Appellate Review.  
7.22.   As Mem bers had repeatedly pointed out, dispute settlement was one of the major WTO 
functions, and the Appellate Body was a critical component of this mechanism. The integrity, 
independence and impartiality of the Appellate Body contributed immensely to the prope r 
settlement of disputes between WTO  Members, and ensured the predictability of WTO rules. 
In addition, Article  17.2 of the DSU specifically provided that "[v]acancies shall be filled as they 
arise". Therefore, it was the responsibility and obligation of t he DSB to ensure the timely 
appointment of new Appellate Body members when vacancies arose. By linking the initiation of 
selection processes and the alleged systematic concerns, the United  States failed to fulfil its 
obligation and was undermining the prop er functioning of the dispute settlement system. China WT/DSB/M/409  
 
- 18 - 
 
  regretted this situation. At the present meeting, the United  States continued to refuse to end the 
blockage and again refused to provide any concrete proposal on how to resolve the concerns it had  
raised. China urged the United  States to lift the blockage. China urged Members to strengthen the 
dispute settlement mechanism rather than undermining its proper functioning.  China also 
reminded the United  States that if the Appellate Body were destroyed, not only the functioning of 
the multilateral trading system, but a lso the interests of the United  States would be diminished. 
China looked forward to working with all WTO  Members to launch the selection processes as soon 
as possible.  
7.23.   The representative of Uruguay said that her country reiterated its concerns with regard to 
the current paralysis to launch the Appellate Body selection processes. In this regard, Uruguay 
referred to its previous statements made under this Agenda item. Uruguay endorsed the joint 
proposal, which had been submitted by Mexico. As was noted by a number of other delegations, 
the support  for the proposal among the WTO  Membership was diverse and significant. Uruguay 
also endorsed the statement made by Colombia, on behalf of the GRULAC count ries. 
7.24.   The representative of Pakistan  referred to its previous statements under this Agenda item 
and reiterated its concern that the DSB had been unable to fulfil its obligation enshrined in 
Article  17.2 of the DSU to appoint Appellate Body members as vacan cies arose. Presently, there 
were three vacancies, which remained to be filled. Pakistan, once again, urged all Members to 
discuss this matter with an open mind and to delink it from the regular functioning of the Appellat e 
Body. Pakistan also urged WTO  Members to show the utmost flexibility in order to ensure that the 
WTO Membership surpassed this deadlock, for the benefit of the system. As co -sponsor, Pakistan 
supported the proposal put forward by Mexico to fill the vacancies that had arisen in the Appell ate 
Body. The wide range of WTO  Members supporting this joint proposal was ample proof of the 
shared concern with the present situation in the Appellate Body that was adversely affecting its 
workings and the overall functioning of the dispute settlement sy stem. Thus, it was essential to 
launch the selection processes for the new Appellate Body members, as submitted before the DSB 
at the present meeting. By failing to act at the present meeting, Members would sustain the 
present situation, which was seriousl y affecting the workings of the Appellate Body a gainst the 
best interest of WTO  Members and the multilateral trading system.  
7.25.   The representative of Mexico , speaking on behalf of the 63  co-sponsors of the proposal, said 
that the proponents regretted that, fo r the ninth time, Members had not achieved consensus to 
start the selection processes for the vacancies of the Appellate Body and had, thus, faile d to fulfil 
their duties as WTO  Members. No discussion should prevent the Appellate Body from continuing to 
fully operate, and Members should comply with their obligation under the DSU, to fill the vacancies 
as they arose. By failing to act at the present meeting, the WTO  Membership would sustain the 
current situation, which was seriously affecting the work of the  Appellate Body against the best 
interest of its Members. The co -sponsors of the proposal continued to urge all WTO  Members to 
support the proposal in the interest of the multilateral trading system and the dispute sett lement  
system.  
7.26.   The representative of Kazakhstan  said that her country associated itself with the statements 
made by other delegatio ns who had urged the entire WTO  Membership to launch the Appellate 
Body selection processes as soon as possible. Kazakhstan said that it wou ld be helpful if the 
United States could clarify some questions with respect t o some of the points the United  States 
had made at the present meeting. First, Kazakhstan asked if its understanding was correct that 
the United  States requested that an item should be inscribed on th e DSB Agenda every time when 
an Appellate Body member's term would expire in order to take a decision as to whether s/he 
could continue serving on the appeals to which s/he had been assigned. Second, if so, Kazakhstan 
asked the United  States to identify wh ich provision in the DSU mandated the DSB to take such 
decision. Third, if such provision did not exist in the DSU, Kazakhstan requested the United  States 
to elaborate how the WTO  Membership should approach this issue. For instance, should such 
provision b e included in the DSU or be adopted as a stand -alone rule. Kazakhstan said that it 
looked forwa rd to the replies by the United  States by the next DSB  meeting.  
7.27.   The representative of Switzerland  said that, as a co -sponsor of the proposal submitted by 
Mexico, his country had expressed its concerns about this issue on a number of occasions. 
Switzerland continued to believe tha t it would be essential for WTO  Members to engage in an 
effective dialogu e on how to resolve the crisis. Barring a willingness on all parts to do so, the 
spectre of the Appellate Body losing even more members, and eventually its minimal quorum, was WT/DSB/M/409  
 
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  looming ever larger. For Switzerland, the WTO, with its dispute settlement mecha nism, was the 
bedrock of trade policy and a key pillar of global economic governance. Accordingly, while still 
hoping for a solution to be found in time, the on -going crisis and, all the more so, the possibility of 
the Appellate Body going out of business,  were deeply worrying for Switzerland.  
7.28.   The representative of Honduras  said that her country endorsed the statement made by 
Mexico, on behalf of the co -sponsors of the proposal, and by Colombia, on behalf of the GRULAC 
countries. Honduras also thanked the C hairman for his tireless efforts in finding a solution to the 
present blockage. The dispute settlement system was one of the key pillars of the WTO, and 
Honduras had been an active participant in the dispute settlement system. Honduras reiterated its 
systemic concerns with the present situation, a blockage that could compromise this key pillar, and 
eventually, the entire multilateral trading system . Honduras, thus, urged all WTO  Members to 
demonstrate flexibility and willingness to resolve the present probl em as soon as possible, as it 
was in the best interest of all WTO  Members and the multilateral trading system as a whole.  
7.29.   The representative of Chinese  Taipei  said that Chinese Taipei was pleased to contribute to 
the system by supporting the joint proposal and welcomed the new co -sponsors of the joint 
proposal. However, Chinese  Taipei also regretted that, once again, the DSB could not initiate the 
selection pro cesses at the present meeting. Chinese  Taipei reiterated that it stood ready to work 
with other Members to find a solution without further delay.  
7.30.   The representative of Korea  said that his country endorsed Mexico's statement, on behalf of 
the 63  co-sponsors . Korea was, however, disappointed that the DSB had failed to launch the 
selection processes at the present meeting. As many other delegations had mentioned, this was a 
matter of urgency, which had to be dealt with immediately. In this regard, Korea would like to 
invite others that had not yet joined the proposal to co -sponsor this joint effort. With regard to the 
statement made by the United  States at the present meeting, Korea saw no basis of linking the 
selection processes to the issue of Rule  15. Korea was, nevertheless, willing to engage in the 
discussion, in good faith, with the aim of making progress to unblock the current situation.  
7.31.   The representative of New Zealand  said that her country wished to thank Mexico, once 
again, for its statement and for a ll of its hard work. New  Zealand fully supported the proposal to 
launch the process to fill the three Appellate Body vacancies as soon as p ossible. New  Zealand 
referred to its statements made under this Agenda item at previous  DSB meetings. Like others, 
New Zealand reiterated the urgency of appointing new Appellate Body members and underscored 
its disappointment that this had not been possible at the present meeting. A predictable, 
rules-based trading system was cr itical for all WTO  Members. New  Zealand sto od ready to wor k 
constructively with other WTO  Members to resolve the present impasse and ensure that the 
dispute settlement mechanism would continue to fulfil its essential role in the broader WTO  
system.  
7.32.   The representative of the European  Union  said that  his delegation referred to the EU  
statements made at the regular DSB meeting of November  2017 and January  2018. Although the 
EU did not think that Rule  15 was a problem and considered that Rule  15 was legitimate, the EU 
was nevertheless ready to engage in  discussions on Rule  15, if that would help unblock the 
appointments to the Appellate Body. The EU said that it was still waiting for such engagement, on 
the part of the delegation that was blocking the Appellate Body appointments. The EU had still not 
seen any such engagement. Under the current rules, the Appellate Body had the full authority to 
apply Rule  15 as it had done for Mr. Ramírez and Mr. Van den Bossche. This had been especially 
important in the current context, where the Appellate Body was not f ully composed. These 
decisions had therefore been needed in order to maintain the stability of the dispute settlement 
system, to deal with the unprecedented workload of appeals and to preserve the rights of 
participants and third participants in pending ap peals. Therefore, the EU welcomed these decisions 
and wished to, once again, express its gratitude to the Appellate Body and its staff for their 
continued work in this difficult context.  
7.33.   The representative of the United  States  said that, at the present mee ting, the Unite d States 
had heard only two WTO  Members express the view that the Appellate Body had the authority to 
"deem" someone who was not an Appellate Body member to be a member of the Appellate Body 
for the purposes of a particular appeal. Of those two Members, only one had put forward an y 
argument for this position. The United States took this opportunity to comment on that argument. 
That Member asserted that the rotation required by the  DSU provided the legal basis for Rule  15. WT/DSB/M/409  
 
- 20 - 
 
  This argument exhibi ted a fundamental misunderstanding of the DSU. Article  17.1 provided, in 
relevant part, that the Appellate Body "shall be composed of seven persons, three of whom shall 
serve on any one case. Persons serving on the Appellate Body shall serve in rotation. S uch rotation 
shall be determined in the working procedures of the Appellate Body". Rotation, as used in this 
provision, was concerned with ensuring variation among the individuals serving in different cases. 
The United  States failed to see how this rotatio n had any relevance to the question raised by 
Rule 15, namely, the continued service on an appeal by an individual that had ceased to be an 
Appellate Body member. At the present meeting, the United States had also heard certain WTO  
Members express a willin gness to engage on the important issu es and concerns that the 
United  States had raised. The United  States looked forward to that engagement.  
7.34.   The Chairman  said that it was regrettable that the DSB was not in a position at the present 
meeting to reach consen sus to launch the selection processes. Obviously, the matter was 
becoming increasingly complex. The United States had initially questioned the Rule  15 "transition" 
procedure when it had objected to the launch of the Appellate Body selection processes. In 
response, he had conducted informal consultations with interested WTO  Members to discuss 
Rule 15 and some related issues. There was a sense, however, that many WTO  Members were not 
ready to further proceed without more clarity about the US position, namely,  what were the actual 
issues that needed to be addressed and resolved. The Appellate Body was currently reviewing 
seven cases and more cases would be brought to the Appellate Body in the near future. If the 
vacancies on the Appellate Body were not filled q uickly, it would be almost certain that further 
delay in the appellate proceedings would ensue. The sense of crisis and urgency, which many 
Members had expressed at the present meeting, should be shared by all Members and be 
translated into action. For tha t, political engagements by all WTO  Members would be needed. 
While there was a need to  address procedural issues, WTO  Members also needed more 
conversations on broader questions, so that the WTO  Membership could build necessary trust 
among itself. He noted  that his time as DSB Chairman was drawing to a close, but that he would 
continue informal consultations on this matter until the next, and his last, regular DSB meeting i n 
March  2018, with the objective to gather Members' views and facilitate conversation . He then 
urged those delegations that had any views on this matter to contact him directly.  
7.35.   The DSB took note  of the statements.  
8  INDONESIA – IMPORTATION OF HORTI CULTURAL PRODUCTS, A NIMALS AND ANIMAL 
PRODUCTS  
A.  Statement by Indonesia  
8.1.  The representative o f Indonesia , speaking  under "Other Business", said that, at the meeting 
held on 22  November  2017, the DSB had adopted the Panel and the Appellate Body Reports in 
these disputes. At that meeting, Indonesia had emphasised that it would take a lot of effort a nd 
time for Indonesia to implement the DSB's recommendations and rulings because of the profound 
implications of these measures. In its communication to the Chairman, dated 15  December  2017, 
Indonesia had informed the DSB that "it is impracticable for Indo nesia to comply immediately with 
the recommendations and rulings of the DSB and therefore it requires a reasonable period  of time 
in which to do so". On  22 January  2018, at the first DSB meeting, which had been held after the 
adoption of the Panel and Appe llate Body Reports, Indonesia had stated that it had fully 
understood its obligation, and that it was currently studying implementation options. Despite of 
this statement, New Zealand and the United  States appeared to need more clarity as to whether 
Indone sia intended to implement the DSB's  recommendations in these disputes. Indonesia, thus, 
wished to reiterate that it intended to implement the DSB's recommendations in these disputes.  
8.2.  The representative of the United  States  said that the United  States welco med Indonesia's 
clarification and confirmation at the present meeting that it intended to comply with the 
DSB's  recommendations and rulings in this dispute. The United  States recalled that the DSB had 
found that  each of the 18  Indonesian measures at issue in this dispute were inconsistent with 
Indonesia's WTO obligations. Given the severely restrictive nature of Indonesia's measures on 
importation of horticultural products, animals, and animal products, and how long the y had been in 
place, the United  States  expected that Indonesia would promptly remove all of these 
WTO-inconsistent barriers.  WT/DSB/M/409  
 
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  8.3.  The representative of New Zealand  said that her country thanked Indonesia for its 
confirmation that it intended to implement the DSB's recommendations and rulings in thi s dispute 
which had been a dopted on 22  November  2017. New  Zealand looked forward to working with 
Indonesia towards achieving pro mpt, effective, durable and WTO -consistent compliance in this 
matter. This was in both countries' mutual interests.  
8.4.  The DSB took note of the statements.  
__________