RESTRICTED  
  
WT/DSB/M/414  
 
11 October 2018  
(18-6024) Page: 1/33 
Dispute Settlement Body  
22 June 2018    
 
MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 22 JUNE 2018 
Chairperson : Ms. Sunanta Kangvalkulkij  (Thailand)  
Table of Contents  
1   SURVEILLANCE OF IMPLEMENTATION OF RE COMMENDATIONS ADOPTE D BY 
THE DSB  ................................ ................................ ................................ ...........................  2 
A.  United  States – Anti-dumping measures on certain hot -rolled steel products from  
Japan: Status report by the Unit ed 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................................ ................................ ....... 4 
D.  United  States – Anti-dumping and countervailing measures on large residential  
washers from Korea: Status report by the Uni ted States  ................................ ..........................  5 
2   UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  OF 
2000: IMPLEMENTATION  OF THE RECOMMENDATI ONS ADOPTED BY THE DSB  ................  6 
A.  Statement by the European  Union  ................................ ................................ ....................  6 
3   UNITED  STATES – MEASURES AFFECTING T HE CROSS -BORDER SUPP LY OF  
GAMBLING AND BETTING  SERVICES  ................................ ................................ ................  7 
A.  Statement by Antigua and  Barbuda  ................................ ................................ ..................  7 
4   RUSSIA - ANTI -DUMPIN G DUTIES ON LIGHT CO MMERCIAL VEHICLES FR OM 
GERMANY AND ITALY  ................................ ................................ ................................ ..... 10 
A.  Statement by the Russian  Federation  ................................ ................................ .............. 10 
5   STATEMENT BY THE  UNITED STATES CONCE RNING ARTICLE  17.5 O F THE 
UNDERSTANDING ON RUL ES AND PROCEDURES GO VERNING THE SETTLEME NT 
OF DISPUTES  ................................ ................................ ................................ .................  11 
6   CANADA – MEASURE S GOVERNING THE SALE  OF WINE IN GROCERY STORES  
(SECOND COMPLAINT)  ................................ ................................ ................................ ... 25 
A.  Request for the establishment of a panel by the United  States  ................................ ............ 25 
7   UNITED  STATES – ANTI -DUMPING MEASURE S ON FISH FILLETS FR OM 
VIET  NAM  ................................ ................................ ................................ .......................  26 
A.  Request for the esta blishment of a panel by Viet  Nam ................................ ....................... 26 
8   PROPOSED NOMINAT ION FOR THE INDICATI VE LIST OF GOVERNMEN TAL 
AND NON -GOVERNMENTAL  PANELISTS  ................................ ................................ ..........  26 WT/DSB/M/414  
 
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  9   APPELLATE BODY A PPOINTMENTS: PROPOSA L BY ARGENTINA; AUST RALIA; THE 
PLURINATIONAL STATE OF BOLIVIA; BRAZIL; CANADA; CHILE; CHINA; COLOMBIA; 
COSTA  RICA; DOMINICA N REPUBLIC; ECUADOR;  EL SALVADOR; THE EU ROPEAN  UNION; 
GUATEMALA; HONDURAS;  HONG  KONG, CHINA; I CELAND; INDIA; INDON ESIA; ISRAEL; 
KAZAKHSTAN; KOREA; M EXICO; NEW  ZEALAND; NICARAGUA; NORWAY; P AKISTAN; 
PANAMA; PARAGUAY; PE RU; THE RUSSIAN  FEDERA TION; SINGAPORE; SWI TZERLAND; 
THE SEPARATE CUSTOMS  TERRITORY OF TAIWAN , PENGHU, KINMEN AND  MATSU; 
TURKEY; UKRAINE; URU GUAY; THE BOLIVARIAN  REPUBLIC OF VENEZUE LA AND 
VIET  NAM  ................................ ................................ ................................ .......................  27 
10   STATEMENT BY TH E CHAIRPERSON REGARD ING THE POSSIBLE  
REAPPOINTMENT OF ONE  APPELLATE BODY MEMB ER ................................ ....................  31 
11   INDONESIA – IMPORTATION OF HORTICUL TURAL PRODUCTS, ANIM ALS 
AND ANIMAL PRODUCTS  ................................ ................................ ................................  32 
A.  Statement by Indonesia  ................................ ................................ ................................ .32 
12   EUROPEAN  COMMUN ITIES AND CERTAIN ME MBER STATES – MEASUR ES 
AFFECTING TRADE IN L ARGE CIVIL AIRCRAFT ................................ ...............................  32 
A.  Statement by the United  States  ................................ ................................ ...................... 32 
 
 
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 Unite d States (WT/DS184/15/Add.184)  
B.  United  States – Section  110(5) of the US copyright act: Status report by the United  States 
(WT/DS160/24/Add.159)  
C.  European  Communities – Measures affecting the approval and marketing of biotech products: 
Status report by the  European  Union (WT/DS291/37/Add.122)  
D.  United  States – Anti-dumping and countervailing measures on large residential washers from 
Korea: Status report by the United  States (WT/DS464/17/Add.6)  
1.1.  The Chairperson  noted that there were four sub -items un der this Agenda item concerning 
status reports submitted by delegations pursuant to Article  21.6 of the DSU. She recalled that 
Article  21.6 required that, "[u]nless the DSB decides otherwise, the issue of implementation of the 
recommendations or rulings sh all 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, she invited delegations to provi de 
up-to-date information about their compliance efforts. She 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 mee ting 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".  
A.  United  States – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status report by the United  States (WT/DS184/15/Add.184)  
1.2.  The Chairperson  drew attention to document WT/DS184/15/Add.184, which contained the 
status report by the United  States on progress in the implementation of the DSB's recommendations 
in the case concerning U S anti-dumping measures on certain hot -rolled steel products from Japan.  
1.3.  The representative of the United  States  said that the United  States had provided a status report 
in this dispute on 11  June 2018, in accordance with Article  21.6 of the DSU. The Unite d States had 
addressed the DSB's recommendations and rulings with respect to the calculation of anti -dumping 
margins in the hot -rolled steel anti -dumping duty investigation at issue. With respect to the 
recommendations and rulings of the DSB that had yet t o be addressed, the US Administration would WT/DSB/M/414  
 
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  work with the US Congress with respect to appropriate statutory measures that would resolve this 
matter.  
1.4.  The representative of Japan  said that his country thanked the United  States for the latest status 
report an d the statement made at the present meeting. Japan, once again, called on the 
United  States to fully implement the DSB's recommendations and rulings in order to resolve this 
matter.  
1.5.  The DSB took note  of the statements and agreed  to revert to this matter at  its next regular 
meeting.  
B.  United  States – Section  110(5) of the US copyright act: Status report by the 
United  States (WT/DS160/24/Add.159)  
1.6.  The Chairperson  drew attention to document WT/DS160/24/Add.159, which contained the 
status report by the United  States on progress in the implementation of the DSB's recommendations 
in the case concerning Section  110(5) of the US Copyright Act.  
1.7.  The representative of the United  States  said that the United  States had provided a status report 
in this dispute on 11  June 2018, in accordance with Article  21.6 of the DSU. The US Administration 
would continue to confer with the European  Union, and to work closely with the US Congress, in 
order to reach a mutually satisfactory resolution of this matter.  
1.8.  The representative of the European  Union  said that the EU thanked the United  States for its 
status report and its statement made at the present meeting. The EU referred to its previous 
statements and reiterated that the EU would like to resolve this case as soon as possible.  
1.9.  The representative of China  said that the United States had submitted the 160th status report 
in this dispute, which was not significantly different from the reports submitted by the United  States 
at previous DSB meetings. China recalled that the first sta tus report had been submitted in 
November  2004. No further progress towards implementation was reported at the present meeting. 
China was interested in the reasons as to why the United  States had failed to implement the DSB's 
recommendations and rulings fo r over a  decade. As a result of the US non-compliance, 
Section  110(5) of the US Copyright Act, which the Panel had found to be inconsistent with the 
requirements of the Berne Convention and the TRIPS  Agreement, was still in effect. The 
United  States had fa iled to provide intellectual property right holders with the minimum standards 
of protection as required by the TRIPS  Agreement. The United  States remained the only WTO  
Member who failed to implement the DSB 's recommendations and rulings long after the exp iry of 
the reasonable period of time. Upon the establishment of the WTO, Members had agreed to abide 
by the WTO Agreement. Article  2.1 of the Marrakesh  Agreement Establishing the WTO provided that 
the Agreements and legal instruments as contained in Annexe s 1, 2 and  3 were binding on all 
Members. There was no exception to this rule and Members should not be exempt from such 
obligations, or deem to be above the law. China urged the United  States to faithfully honour its 
commitments under the DSU and the TRIP S Agreement by implementing the DSB's  
recommendations and rulings in this dispute. China also urged that the United States, in next its 
status report, should provide specific reasons as to why it had failed to implement the DSB's  rulings, 
and why it had fa iled to do so for such a long time.  
1.10.   The representative of the United  States  said that, by intervening under this item, China 
attempted to give the appearance of concern for intellectual property rights. At last month's DSB 
meeting, the United States had di scussed at some length some significant and trade distorting 
shortcomings in China's treatment of intellectual property. If China was interested in discussing the 
protection of intellectual property rights, the United  States was certainly willing to cooper ate by 
bringing that matter to the DSB's attention again. For now, the United States could say that, as the 
companies and innovators of China and other Members well knew, the intellectual property 
protection that the United  States provided within its own t erritory equalled or surpassed that of any 
other Member. Indeed, as China also well knew, none of the damaging technology transfer practices 
of China that had been discussed last month were practices that Chinese companies or innovators 
faced in the United  States.  WT/DSB/M/414  
 
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  1.11.   The representative of China  said that his country took note that the United States had 
intervened again to shift Members' focus under this Agenda item. The issue here was whether the 
United  States had implemented the DSB's recommendations and ruli ngs in DS160, and the answer 
was negative. As before, China continued to urge the United States to bring itself into compliance 
with the DSB's recommendations and rulings.  
1.12.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
C.  European  Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the  European  Union (WT/DS291/37/Add.122)  
1.13.   The Chairperson  drew attention to document WT/DS2 91/37/Add.122, which contained the 
status report by the European  Union on progress in the implementation of the DSB's 
recommendations in the case concerning measures affecting the approval and marketing of biotech 
products.  
1.14.   The representative of the Europe an Union  said that the EU continued to progress with the 
authorizations where the European Food Safety Authority had finalized its scientific opinion and had 
concluded that there were no safety concerns. The EU continued to be committed to acting in line 
with its WTO obligations. More generally, and as stated many times before, the EU recalled that the 
EU approval system was not covered by the DSB's recommendations and rulings.  
1.15.   The representative of the United  States  said that the United  States thanked the 
European  Union for its status report and its statement made at the present meeting. As noted at the 
previous DSB  meeting, the United  States had ongoing concerns with the EU's approval of biotech 
products. The United States continued to see prolonged, unpre dictable, and unexplained delays at 
every stage of the approval process. The delays had affected the products previously approved by 
the EU, and continued to affect the dozens of applications that had been awaiting approval for 
months or years. Even when t he EU finally approved a biotech product, the EU had facilitated the 
ability of individual EU member States to impose bans on the supposedly approved product.  
1.16.   As the United States had noted at previous DSB meetings, the EU had adopted legislation that 
permitted EU member States to "opt -out" of certain approvals, even where the European Food Safety 
Authority had concluded that the product was safe. In its intervention at the May DSB meeting, the 
EU had once again asserted that this "opt -out" legislation1 was not covered by the DSB's  
recommendations and rulings, and that no EU country had imposed a ban. As the United States had 
explained, the EU could not seriously maintain that measures serving to move a Member further out 
of compliance were not relevant to the DSB's surveillance of a Member's  implementation. The 
United  States further noted that the EU's opt -out legislation permitted EU member States to restrict 
for non -scientific reasons certain uses of EU -authorized biotech products in their territories. An d thus 
far, at least 17 member States, as well as certain regions within EU member States, had submitted 
requests to opt -out of EU approvals. The United  States again urged the EU to ensure that all of its 
measures affecting the approval of biotech products , including measures adopted by individual EU 
member States, were supported by scientific evidence, and that decisions were taken without undue 
delay.  
1.17.   The representative of the European  Union  said that the United  States had referred to what 
the United Stat es called the "opt -out directive". As the United  States had just mentioned, the opt -out 
directive was indeed not covered by the DSB's rulings. Moreover, no EU member State had imposed 
any bans thus far. As the EU had stated before, under the terms of the d irective, an EU member 
State could adopt measures restricting or prohibiting cultivation only if such measures were in line 
with EU law, and if they were reasoned, proportional and non -discriminatory and were based on 
compelling grounds. The opt -out direct ive, as well as national measures that EU member States 
adopted based on the said directive, were compatible with WTO rules and did not discriminate 
between imported and domestic like products.  
                                                
1 EU Directive 2015/412.  WT/DSB/M/414  
 
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  1.18.   The DSB took note  of the statements and agreed  to revert to th is 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.6)  
1.19.   The Chairperson  drew attention to document WT/DS464/17/Add.6 , which contained the 
status report by the United  States on progress in the implementation of the DSB's recommendations 
in the case concerning anti -dumping and countervailing measures on large residential washers from 
Korea.  
1.20.   The representative of the United States  said that the United States had provided a status 
report in this dispute on 11  June 2018, in accordance with Article  21.6 of the DSU. On 
15 December  2017, the United States Trade Representative had requested that the US Department 
of Commerce make  a determination under Section  129 of the Uruguay  Round Agreements Act to 
address the DSB's  recommendations relating to the Department's countervailing duty investigation 
of was hers from Korea. On 18  December  2017, the Department of Commerce had initiated a 
proceeding to make such determination. Following initiation, Commerce had issued initial and 
supplemental questionnaires seeking additional information. On 4  April 2018, Commerce had issued 
a preliminary determination revising certain aspects of its orig inal determination. Following issuance 
of the preliminary determination, Commerce had provided interested parties with the opportunity to 
submit comments on the issues and analysis in the preliminary determination and rebuttal 
comments. Commerce had review ed those comments and rebuttal comments and had taken them 
into account for purposes of preparing the final determination. On 4  June 2018, Commerce had 
issued a final determination, in which Commerce had revised certain aspects of its original 
determinatio n. Specifically, Commerce had revised the analysis underlying the CVD determination, 
as it pertained to certain tax credit programs, in accordance with findings adopted by the DSB. The 
United  States continued to consult with interested parties on options t o address the 
recommendations of the DSB relating to anti -dumping measures challenged in this dispute.  
1.21.   The representative of Korea  said that his country thanked the United  States for its latest 
status report and statement made at the present meeting. Speci fically, Korea took note that the 
United  States had taken steps to revise its countervailing duty determination where the 
US Department of Commerce had issued a final determination on 4  June 2018. Korea was, 
nevertheless, of the view that it was questionab le whether the results of the final determination 
properly reflected the DSB's  recommendations and rulings. Korea would closely monitor the final 
implementing measures by the United  States relating to its CVD measures. Korea also, once again, 
expressed its  serious concern that there had been no development regarding the implementation 
efforts by the respondent regarding the anti -dumping measures at issue until the present day, 
namely, more than 21  months after the adoption of the Panel and Appellate Body Re ports in this 
dispute. In this regard, Korea, once again, urged the United  States to implement the DSB's 
recommendations and rulings in this dispute to fully comply with its obligations under the covered 
agreements.  
1.22.   The representative of Canada  said that his country was concerned that the United  States had 
not implemented the DSB's recommendations and rulings in this dispute. In particular, Canada was 
deeply disappointed that, despite the expiry of the reasonable period of time, the United  State s 
continued to collect cash deposits from Canadian exporters based on a methodology that had been 
found to be "as such" inconsistent with WTO obligations in this dispute.  
1.23.   The representative of the United  States  said that the United  States had explained to Korea 
the special challenges arising from the recommendations in this dispute. Nevertheless, Korea had 
requested authorization pursuant to Article  22.2 of the DSU to suspend concessions and other 
obligations. Korea's decision to proceed in that regard was disappointing, and not constructive. As 
the United  States had objected to the level of suspension proposed by Korea, the matter had been 
referred to arbitration pursuant to Article  22.6 of the DSU.  
1.24.   The DSB took note  of the statements and agreed  to revert t o this matter at its next regular 
meeting.  WT/DSB/M/414  
 
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  2  UNITED  STATES – CONT INUED DUMPING AND SU BSIDY OFFSET ACT OF  2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE  DSB 
A.  Statement by the European  Union  
2.1.  The Chairperson  said that this item was on the Agenda of the present meeting at the request 
of the European  Union and invited the representative of the European Union to speak.  
2.2.  The representative of the European  Union  said that, as in previous DSB meetings, the EU, once 
again, requested the United  States to s top transferring anti -dumping and countervailing duties to 
the US industry. Every disbursement that still took place was clearly an act of non -compliance with 
the DSB's recommendations and rulings. The EU renewed its call on the United  States to abide by 
its clear obligation under Article  21.6 of the DSU to submit status reports regarding US  
implementation in this dispute. The EU would continue putting this item on the Agenda, for as long 
as the United States had not implemented the WTO ruling.  
2.3.  The represen tative of Brazil  said that, as an original party to the "Byrd Amendment" dispute, 
her country, once again, thanked the EU for keeping this item on the DSB Agenda. Despite that 
more than 15  years had passed since the DSB's recommendations in this dispute an d more than 
12 years had passed since the enactment of the Deficit Reduction Act that had repealed the Byrd 
Amendment, millions of dollars' worth of anti -dumping and countervailing duties applied to Brazilian 
and other WTO Members' exports were still illeg ally disbursed to US domestic petitioners. Brazil 
called on the United  States to fully comply with the DSB's recommendations and rulings in this 
dispute.  
2.4.  The representative of Canada  said that his country referred to its statement made on this 
matter at th e previous DSB meeting. Canada's position remained unchanged.  
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 repealing the Continued 
Dumping  and Subsidy Offset Act of 2000 – had been enacted into law in February  2006. Accordingly, 
the United  States had taken all actions necessary to implement the DSB's  recommendations and 
rulings in these disputes. The United States recalled, furthermore, that  the EU had 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 reports 
in this matter, as the United Sta tes had already explained at previous DSB meetings, there was no 
obligation under the DSU to provide further status reports once a Member announced that it had 
implemented the DSB recommendations and rulings, regardless of whether the complaining party 
disagreed about compliance. And as the United States had noted many times previously, the EU had 
demonstrated repeatedly it shared this understanding, at least when it was the responding party in 
a dispute.  
2.6.  Once again, this month the EU had provided no status  report for disputes in which there was 
a disagreement between the parties on the EU's compliance. In fact, last month the DSB had adopted 
two further reports finding that the EU and four of its member States – France, Germany, Spain and 
the United  Kingdom  – had failed to comply in the "EU – Large Civil Aircraft" dispute (DS316). Despite 
those findings, and despite the US view that the EU had not complied in that dispute, the EU had 
not submitted a status report this month. The United States failed to see h ow the EU's behaviour 
was consistent with the alleged systemic view it had been espousing under this item for more than 
10 years. The United States would comment further on the EU's double -standard – one for itself, 
the other for other WTO  Members – in the  US statement under "Other  Business". As the EU was 
aware, the United  States had announced in this dispute that it had implemented the DSB's 
recommendations and rulings. If the EU disagreed, there would simply appear to be a disagreement 
between the partie s to the dispute about the situation of compliance.  
2.7.  The representative of the European  Union  said that the EU disagreed with the statements made 
by the United  States. The EU had provided status reports in all cases, in which it was involved. For 
the presen t DSB meeting, there was only one case, namely, "EC – Approval and Marketing of Biotech 
Products" (DS291). The United  States had also referred to the "EC and Certain Member States - 
Large Civil Aircraft" dispute (DS316). Given that the United  States had an nounced that it would WT/DSB/M/414  
 
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  make a statement in this regard under "Other Business", the EU would also provide its views on this 
matter under the same Agenda item.  
2.8.  The DSB took note  of the statements.  
3  UNITED  STATES – MEAS URES AFFECTING THE C ROSS -BORDER SUPPLY O F GAMBLING 
AND BETTING SERVICES  
A.  Statement by Antigua and  Barbuda  
3.1.  The Chairperson  said that this item was on the Agenda of the present meeting at the request 
of Antigua and  Barbuda. She then invited the representative of Antigua and  Barbuda to speak.  
3.2.  The representative of Antigua and  Barbuda  said that, as far back as  2007, an Arbitrator that 
had been appointed by the DSB had determined that the level of impairments of benefits accruing 
to Antigua and  Barbuda, as a consequence of actions of the United  State s, had been US$21  million 
annually. The damage to Antigua and  Barbuda's small economy had begun in  2003. Using the 
Arbitrator's measure of impairment, in the 15  years that had elapsed, tiny Antigua and  Barbuda – 
the size of whose economy was a mere US$1.4  billion – had lost US$315  million, or more than a 
quarter of its annual GDP. All delegations would recognize that the damage to Antigua and  Barbuda 
had set back its economy and deprived its people of the ability to advance their social and economic 
develop ment. This set -back was even more horrendous when two factors were taken into account. 
The first was the effect of global recession, which had begun because of failures in the banking 
system in the United  States that had spread across the globe and had per sisted for seven arduous 
years, since 2008. The second was repeated injury to Antigua and  Barbuda, over those years, by 
incessant hurricanes that had increased in frequency and intensity as a consequence of climate 
change.  
3.3.  Antigua and  Barbuda had been a vi ctim of all the mentioned circumstances; it had in no way 
been a perpetrator. Antigua and Barbuda's small economy was among those nations that contributed 
the least to harmful greenhouse gas emissions at less than nought per cent. While the country had 
suffered from the global recession, it had played no part in its creation or its harmful results. Nor 
had Antigua and Barbuda been responsible for this situation with the United  States that had hurt its 
economy and engaged the attention of the DSB for 15  years, since March  2003. It was the 
United  States, not Antigua and  Barbuda, that had failed to honour its commitment to grant full 
market access in gambling and betting services; and it had been the United  States that had 
continued to maintain limitations on m arket access. Since  2004 to now – and through processes of 
three  Panels and two  Arbitrators, all of which had upheld the damage to Antigua and  Barbuda – 
Antigua and Barbuda had sought to settle this matter with the United  States in an amicable, fair and 
reasonable manner. All of Antigua and  Barbuda's attempts, in good faith, had failed. The 
United  States had repeatedly stated at the DSB that the United  States had offered what had been 
described as "creative and generous settlement proposals in  2008, 2013 an d 2015", and that Antigua 
and Barbuda had found them unacceptable.  
3.4.  The US proposals had been found unacceptable because none of them had added up to even 
one per cent of the damage done to the Antigua and  Barbuda economy. Antigua and  Barbuda noted 
that wh ile it had not been compensated for its significant and injurious trade losses, it had not 
stopped trading with the United  States which, over the period of this issue, had enjoyed a balance 
of trade surplus with Antigua and  Barbuda of well over US$2  billion. Further, Antigua and  Barbuda's 
tariffs on US goods were among the lowest in the world, and the United  States was the principal 
beneficiary of Antigua and Barbuda's imports, representing almost 70  per cent of Antigua and 
Barbuda's source markets. So, the  United  States could have no quarrel whatsoever with Antigua 
and Barbuda in terms of trade. Notably, as a condition of export benefits enjoyed by some Caribbean 
countries in the United  States market, the US Executive and Congress required these countries t o 
be compliant with the WTO rules and rulings. Yet, incongruously, the United  States was itself not 
WTO-compliant because of its recalcitrance in settling this matter with tiny Antigua and  Barbuda.  
3.5.  Antigua and  Barbuda noted that the trade losses of US$315  million, done to Antigua 
and Barbuda's small economy over the last 15  years, did not total 0.1  per cent of one year of the 
GDP of the United  States. The economy of the United  States was 20,000  times larger than Antigua 
and Barbuda's economy. The United  States had repeatedly stated at DSB meetings that pursuant to WT/DSB/M/414  
 
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  Article  XXI of the  GATS, the US had offered compensation for removing internet gambling from its 
schedule of commitments. It had stated that while other countries had accepted compensatory 
measures  granted to them, Antigua and  Barbuda had not done so, and, therefore, the United  States 
was blocked from completing the process. Antigua and  Barbuda gave the DSB the full assurance 
that the moment the United  States would make full and fair compensation, A ntigua and  Barbuda 
would release the United States from its obligations, but until the United  States would do so, Antigua 
and Barbuda had a duty of care to its people to continue to insist on their rights. Besides, Antigua 
and Barbuda recalled that the WTO  dispute settlement system was established as a system where 
all Members, irrespective of their size, would have their rights protected. As a small country, Antigua 
and Barbuda relied on the credibility of the rules -based multilateral trading system and An tigua 
and Barbuda greatly feared – as should all nations – the global chaos that would result from 
abandoning it. For this reason, Antigua and  Barbuda persisted with this matter in the DSB. Antigua 
and Barbuda had an obligation not only to itself, but to a ll other nations that upheld the WTO 
principles and rules and looked to it for justice. Antigua and  Barbuda acted in the interest of all of 
them.  
3.6.  In 2013, pursuant to Article  22.7 of the DSU, the DSB authorized Antigua and  Barbuda to 
suspend obligations to  the United  States in respect of intellectual property rights to recover 
US$21  million annually. Antigua and  Barbuda had not acted on that authorization in the hope that 
the United  States would agree to a fair and reasonable settlement. It had not done so because 
Antigua and  Barbuda had continued to hope that a sense of justice and fairness would prevail. But, 
Antigua and  Barbuda was now losing all hope. For, the United  States had opted to ignore proposals 
that had been put forward by Antigua and  Barbuda in  2016 and  2017 respectively that would be 
mutually beneficial. The US clung only to US propositions of  2008, 2013 and  2015 respectively – all 
of which had been politely declined, given the inadequacy of their content. Given these 
circumstances, and after a  long period of exhausting attempts to engage the United  States, Antigua 
and Barbuda was now contemplating, once again, to approach the WTO Director -General under the 
DSU provisions to seek a mediated solution that would bring the much needed relief after these 
arduous 15  years of damage to Antigua and Barbuda's economy. Antigua and Barbuda was of the 
view that this was the only way left to urge the United  States to the table of reasonableness and 
fairness. Antigua and  Barbuda would keep the DSB informed of  any developments.  
3.7.  The representative of Barbados  said that his country reiterated, as it had done previously under 
this Agenda item, that the WTO was a rules -based system and, thus, non -compliance on the part of 
any Member in fulfilling its obligations un dermined and put into question the integrity of the entire 
system. This system was critical for all WTO Members and, particularly, for small and vulnerable 
WTO Members. Vulnerability was the exposure of an economy to misogynist shocks, which could 
dampen e conomic growth, similar to what had occurred to Antigua and Barbuda. As Members knew 
well, this could adversely affect the quality of life and the standard of living of its people. This was, 
thus, a factor that could not be overlooked and had to be conside red when assessing this issue. 
Barbados, therefore, reiterated that it was important that WTO Members adhered to and respected 
the DSB's rulings so that both parties could arrive at a satisfactory settlement, which would bring 
this matter to a close.  
3.8.  The r epresentative of Cuba said that her country was grateful for the update provided by 
Antigua and  Barbuda. This was a blatant example of a non -compliance with the DSB's 
recommendations and rulings, which affected one of the smallest economies in the world. I n this 
regard, Cuba also recalled the importance of maintaining balance and stability of the WTO dispute 
settlement system. Cuba therefore called on the parties to continue their bilateral consultations in 
order to implement the DSB's recommendations, as s oon as possible, so that this small and 
vulnerable economy was not affected for much longer.  
3.9.  The representative of Jamaica  said that his country supported the statement made by the 
representative of Antigua and  Barbuda under this Agenda item. Jamaica under scored that this was 
a matter of particular concern to the member States of the Caribbean community. Jamaica was one 
of the countries that had consistently called for a timely conclusion to this protracted dispute, 
especially in light of the clear ruling i n favour of Antigua and Barbuda by the DSB. Jamaica had 
therefore been hopeful that the renewed efforts to resolve this matter by both parties in recent years 
would have borne fruit and that the removal of this Agenda item would have been permanent. 
Instea d, Jamaica had to unfortunately, once again, use this opportunity to reiterate its call on all 
WTO Members to comply fully with their obligations, including those arising from DSB rulings. It was 
particularly important for small and vulnerable economies to  maintain the integrity of the WTO WT/DSB/M/414  
 
- 9 - 
 
  dispute settlement mechanism, which was the vital component under the rules -based system 
regulating international trade. Jamaica took note of Antigua and Barbuda's commitment to continue 
bilateral consultations with the U nited States and urged both Governments to renew their efforts to 
implement the DSB's ruling, in line with the request made by Antigua and Barbuda at the present 
meeting. Jamaica underscored that a resolution in this matter was critical to safeguarding the  
legitimacy of the multilateral trading system.  
3.10.   The representative of the Bolivarian Republic of Venezuela  said that his country supported 
the position of Antigua and Barbuda. It was important that the United  States comply with the DSB's 
recommendations a nd rulings, which were crucial to the economic recovery of Antigua and Barbuda, 
a developing country.  
3.11.   The representative of the United  States  said that the United  States did not understand why 
Antigua had chosen to place this matter on the Agenda of the pr esent meeting. As the United  States 
had explained at past meetings of the DSB, the United  States had responded to the DSB findings in 
this dispute by invoking the multilateral procedure under Article  XXI of the GATS for modifying the 
US schedule of concess ions. Under GATS Article  XXI, Members may make modifications in their 
schedules in a manner that maintained a balance of benefits among Members. In that process, the 
United  States had offered to all interested Members a generous package of services concess ions as 
compensation for removing internet gambling from the US  schedule. With one exception, each and 
every Member that had expressed interest in this process had accepted the US offer. The one 
exception was Antigua. Instead of engaging in the Article  XXI process, Antigua had made extreme 
demands, including requests for monetary payments. Such payments were not part of the 
GATS  Article  XXI process. Nor were they provided for under the DSU.  
3.12.   Despite Antigua's failure to engage in the Article  XXI process, th e United  States had expended 
substantial efforts to resolve this matter with Antigua on a bilateral basis. For example, in  2008, the 
United  States worked for months with Antigua on a settlement package. The United States 
understood that the parties had rea ched agreement. But Antigua subsequently had repudiated it. 
The United  States also had offered Antigua a broad range of useful suggestions to settle this dispute 
in November  2013. Antigua had ignored the US offer for a long period of time, and then had sen t 
very mixed signals for months as to whether the offer had been acceptable. Ultimately, Antigua 
again had chosen to walk away from a settlement offer that would have provided real benefits to 
the people of Antigua. Most recently, the current US Administra tion formally had communicated with 
Antigua that the United  States had been prepared for further discussions. The United  States had 
received no response. For these reasons, Antigua's decision to place this matter on the Agenda of 
the present meeting appear ed to be a political statement, rather than an effort to engage on a 
resolution of this dispute. With respect to the suggestion that this matter be referred to mediation 
or good offices, the United  States considered that a serious effort to re -engage in ne gotiations would 
be more productive than referring the matter to a third party.  
3.13.   The representative of Antigua and  Barbuda  said that his country found it curious that the 
United  States did not understand why Antigua and Barbuda had brought this matter back to the 
DSB. Antigua and Barbuda had brought it back to the DSB because it was obliged to do so. Antigua 
and Barbuda was obliged to keep the DSB informed of the status of these proceedings. The 
United  States had said that Antigua and Barbuda had not respond ed to a most recent US offer. The 
representative of Antigua and Barbuda noted, however, that such an offer would have been 
addressed to him and he had not received it. He, thus, had to assume that it did not exist. Antigua 
and Barbuda however assured the D SB that should the United  States make an offer for serious 
negotiations, Antigua and  Barbuda would accept it willingly.  
3.14.   However, as had been noted in the statement made earlier, the United  States kept referring 
to offers made in  2008 and  2013 respectively,  which Antigua and  Barbuda had rejected because of 
the inadequacy of the offers. These offers did not add up to one per cent of the damage done to 
Antigua and Barbuda's economy as established by the Arbitrator. The offers were so derisory that 
they were ha rdly worth discussing. Antigua and Barbuda took note that the United  States would not 
favour an intervention by the WTO Director -General, in appointing a mediator. However, as 
mentioned earlier, the US economy was  20.000  times larger than Antigua and Barbu da's economy 
and had far greater resources. Antigua and Barbuda could take this matter no further and was of 
the view that it was truly disadvantaged and found that nothing that it had done in the DSB over 
the past 15  years had advanced its case one iota. Antigua and Barbuda, thus, appeared to have no WT/DSB/M/414  
 
- 10 - 
 
  other choice but to contemplate seeking the assistance of the Director -General in appointing a 
mediator. Antigua and Barbuda informed the DSB that this was under very serious consideration.  
3.15.   The representative of the United  States  said the statement by the representative of Antigua 
that a communication from the current US Administration did not exist was a serious accusation. 
The United States would respectfully suggest there appeared to be some misunderstanding  or 
miscommunication. The US records showed that the United  States had written to Antigua and had 
noted that the United States looked forward to further discussions. Antigua had not responded. 
Furthermore, the United States had a number of channels for les s formal communication. Antigua 
also had not made use of those channels. In any event, the United  States remained prepared to 
discuss this matter bilaterally.  
3.16.   The representative of Dominica , speaking on behalf of the member States of the Organization 
of Eastern Caribbean States (OECS), expressed their support to Antigua and Barbuda, a fellow OECS 
member State. It had been 18  months since this matter had been placed on the DSB Agenda, in 
November  2016. Dominica also recalled that between  2012 and  2014, Antig ua and  Barbuda had 
placed this matter on the Agenda approximately 12  times, with statements made by itself or on its 
behalf, to highlight the ongoing lack of US implementation of the DSB's recommendations and 
rulings. Dominica had been aware that, since  2016, Antigua and  Barbuda had been again engaged 
in discussions with the United  States. OECS member States had hoped that progress had been made 
towards a final resolution on this long -standing matter, and thus, regretted to see that Antigua 
and Barbuda had to place this matter once again on the Agenda. It was disappointing to hear from 
Antigua and  Barbuda that the matter remained unresolved.  
3.17.   The OECS member States had previously made a number of statements on this matter, which 
they wished to hereby reiterat e. In these statements, OECS member States had emphasized that a 
well-functioning rules -based multilateral trading system that was fair and equitable had to address 
the needs and concerns of all of its Members, particularly those of the smallest, weakest a nd most 
vulnerable. This was critical for the credibility and relevance of the WTO in the long term. A key 
element of the rules -based multilateral trading system was the WTO dispute settlement mechanism. 
The dispute settlement system had to function well. The rulings of the Panel and the Appellate Body, 
in favour of Antigua and  Barbuda, had been seen as a clear demonstration that a tiny Member could 
win a case against a major Member, in the hope of resolving the situation that had led to the dispute. 
Howeve r, the inability to implement the DSB's rulings in this dispute and the failure to obtain a fair 
settlement of the case for Antigua and  Barbuda to this day, posed a strain on the system. The OECS 
members States fully understood the frustration of Antigua a nd Barbuda and, thus, called on the 
DSB to take note of this. The OECS member States hoped that the engagement at present would 
bring this matter to a final resolution. The OECS member States, once again, called for a prompt 
resolution to bring this long -standing dispute to a resolution, in line with the DSB's 
recommendations, as well as the fundamental principles and objectives of the WTO.  
3.18.   The DSB took note  of the statements.  
4  RUSSIA - ANTI -DUMPIN G DUTIES ON LIGHT CO MMERCIAL VEHICLES FR OM GERMANY 
AND ITALY  
A.  Statement by the Russian  Federation  
4.1.  The Chairperson  said that this item was on the Agenda of the present meeting at the request 
of the Russian  Federation. She then invited the representative of the Russian  Federation to speak.  
4.2.  The representative of the Russian  Federation  said that the DSB had adopted its 
recommendations and rulings in this dispute on 9  April 2018. In accordance with Article  21 of the 
DSU, the Russian Federa tion had informed the DSB on 27  April 2018 that it inten ded to comply with 
the DSB's  recommendations and rulings. The reasonable period of time to comply had been set until 
14 June 2018, when the measures at issue had expired. Following the expiry of the measures at 
issue, the Russian  Federation had fully compl ied with the DSB's recommendations and rulings.  
4.3.  The representative of the European  Union  said that his delegation took note of the statement 
made by the Russian  Federation that the measures at issue had expired on 14  June 2018. The EU 
understood that the R ussian  Federation did not intend to renew or replace these measures. WT/DSB/M/414  
 
- 11 - 
 
  Therefore, the EU thanked the Russian Federation for its prompt compliance, namely, within less 
than two months from the adoption of the DSB's recommendations and rulings.  
4.4.  The DSB took n ote of the statements.  
5  STATEMENT BY THE UNI TED STATES CONCERNIN G ARTICLE  17.5 OF TH E 
UNDERSTANDING ON RUL ES AND PROCEDURES GO VERNING THE SETTLEME NT OF 
DISPUTES  
5.1.  The Chairperson  said that this item was on the Agenda of the present meeting at the request 
of the United  States. She then invited the representative of the United  States to speak.  
5.2.  The representative of the United  States  said that the United  States had requested this Age nda 
item to draw Members' attention to the repeated issuance of Appellate Body reports beyond the 
90-day deadline mandated in the DSU. For too long, the Appellate Body had ignored the clear text 
of the DSU. The United  States wanted Members to read that rul e together and to decide: did the 
words in the WTO Agreement matter? Or was the Appellate Body free to disregard and effectively 
re-write those words whenever it thought that was necessary or appropriate? Similarly, for too long, 
WTO Members had failed to fulfil their responsibility, acting through the DSB, to apply and administer 
the relevant rules. Although some Members had spoken out, by failing to acknowledge and address 
this problem collectively, the Membership had worsened the problem, as the facts wo uld show. 
Through this statement, the United  States intended to re -start a discussion among Members on 
whether Members understood and respected the rules they had written. To facilitate that discussion, 
in this statement the United States would highlight f ive aspects of this issue for Members.  First, the 
United States would highlight the text of Article  17.5 and the mandatory requirement to complete 
appeals in no more than 90  days, with no exceptions. Second, the United  States would explain that 
the Appella te Body's pre -2011 practice had respected this rule and, when there had been deviations, 
it had been only with the agreement of the parties. Third, the United States would draw Members' 
attention to the inexplicable change in the Appellate Body's practice in 2011. Fourth, the United 
States would discuss the result of this change; namely, appeals were taking longer and longer. 
Finally, the United States would conclude by explaining the serious consequences for the WTO 
dispute settlement system of the Appella te Body's repeated, flagrant breach of Article  17.5. 
5.3.  First: The DSU was designed to promote prompt settlement of disputes and mandated that 
appeals be completed in no more than 90  days, with no exceptions. The prompt settlement of 
disputes was a cornerston e of WTO dispute settlement. In Article  3 of the DSU, Members had agreed 
that "[t]he prompt settlement of situations in which a Member considers that any benefits accruing 
to it directly or indirectly under the covered agreements are being impaired by meas ures taken by 
another Member is essential to the effective functioning of the WTO and the maintenance of a proper 
balance between rights and obligations". The principle of prompt settlement was enshrined in 
numerous provisions of the DSU, including Article  17.5 in particular.  
5.4.  Article  17.5, which concerned appellate proceedings, provided that: "As a general rule, the 
proceedings shall not exceed 60  days from the date a party to the dispute formally notifies its 
decision to appeal to the date the Appellate B ody circulates its report". It was worth pausing here. 
Appeals were not supposed to take 90  days. They were supposed to be completed in 60  days "as a 
general rule". But WTO Members had recognized that would not always be possible, and so they had 
provided for the possibility to extend the appeals period. The third sentence of Article  17.5 provides: 
"When the Appellate Body considers that it cannot provide its report within 60 days,  it shall inform 
the DSB in writing of the reasons for the delay together wit h an estimate of the period within which 
it will submit its report". And then the final sentence of Article  17.5 provided: "In no case shall the 
proceedings exceed 90  days". This statement was categorical – it used the terms "in no case" and 
"shall" – and therefore set the outside limit of an extension of the appeals period at 90  days.  
5.5.  Article  17.5 therefore did not accord discretion to the Appellate Body to issue reports beyond 
the 90 -day deadline. In the early days, the Appellate Body itself had recogniz ed this. For example, 
when the Appellate Body had first issued its working procedures, it had explained to the DSB that WT/DSB/M/414  
 
- 12 - 
 
  the timeframes for WTO Members' submissions had to be short as a "consequence of Article  17(5) 
of the DSU, which states that … in no cas e shall [the proceedings] go beyond 90  days".2  
5.6.  The Appellate Body's working procedures, at Rule  23bis, paragraph  3, also referred to "the 
requirement to circulate the appellate report within the time -period set out in Article  17.5". Thus, if 
any Member co nsidered today that Article  17.5 did not mean exactly what it said, the United States 
would simply point out that, some 20  years ago, the Appellate Body had understood Article  17.5 to 
mean exactly what it said.  
5.7.  Second: The Appellate Body's past practice ha d respected the 90 -day deadline in Article  17.5. 
An examination of the Appellate Body's pre -2011 practice demonstrated that it had made every 
effort to comply with the requirements of the DSU. From the first appeal in  1996, in "US – Gasoline", 
up to the ap peal in "US – Tyres (China)" in  2011 – a span of 15  years, covering 101  appeals – the 
Appellate Body had either met the 90 -day requirement or, in a limited number of appeals, had 
consulted and obtained the agreement of the parties to exceed the 90 -day dead line. In fact, for  87 
of those appeals, the Appellate Body had issued its report within the 90 -day deadline, including in 
complex appeals, such as "EC – Bananas", "US – Steel Safeguards", "EC – Tariff Preferences", "US 
– Offset Act", "Japan – DRAMs", and o thers.  
5.8.  In the other  14 of those appeals, the Appellate Body had been concerned it would not be able 
to meet the 90 -day requirement, and it therefore had consulted with the parties and had obtained 
their consent to go beyond that period. This had been done  in a transparent manner, and had been 
reflected in the Appellate Body's report or a communication from the Appellate Body to the DSB. For 
example, in "European Communities – Export Subsidies on Sugar", the Appellate Body Report 
reflected the following agr eement of the parties to the dispute (the European Communities, 
Australia, Brazil, and Thailand): "After consultation with the Appellate Body Secretariat, the 
European Communities and Australia, Brazil, and Thailand agreed, in letters filed on 
19 January  2005, that it would not be possible for the Appellate Body to circulate its Report in this 
appeal within the 90 -day time limit referred to in Article  17.5 of the DSU. The European Communities 
and Australia, Brazil, and Thailand accordingly confirmed that th ey would deem the Appellate Body 
Report in this proceeding, issued no later than 28  April 2005, to be an Appellate Body Report 
circulated pursuant to Article  17.5 of the DSU ".3 
5.9.  The practice of Members' submitting so -called "deeming letters", which had been  an explicit 
recognition that issuing a report outside of the 90 -day period had not been consistent with 
Article  17.5 of the DSU, had been followed in at least 10  appeals.4 During this time, Members also 
had cooperated in other ways to facilitate the abili ty of the Appellate Body to meet the 90 -day 
deadline. At the request of the parties to the dispute, the DSB several times had agreed to take DSB 
decisions to extend the time period for adoption or appeal of panel reports so that the appeal could 
be conside red at a time when the Appellate Body would be better placed to issue its report within 
                                                
2 See, e.g.,  Communication from the Appellate Body, "Working Procedures for Appellate Review"  
WT/AB/WP/W/1 ( 7 February  1996), pp. 2 -3 ("You will notice that the time limits set out in the Working 
Procedures for Appellate Review are short. This is the in evitable consequence of Article  17(5) of the DSU, which 
states that as a general rule, the proceedings shall not exceed 60  days, and in no case shall go beyond 90  days, 
from the date a party to the dispute formally notifies its decision to appeal to the date the Appellate Body 
circulates its report.  It is our view that the timeframes we have established for the filing of subm issions and an 
oral hearing with the parties are reasonable within the constraints imposed by the DSU a nd afford due process 
to all parties concerned while at the same time providing the Appellate Body with the time it requires for careful 
study, delibe ration, decision -making, report -writing by the division and subsequent tran slation of the Appellate 
Report ".). 
3 "EC – Export Subsidies on Sugar" (AB), para. 7.  
4 See, e.g., "US – Upland Cotton" (AB), WT/DS267/AB/R, para. 8; "EC – Export Subsidies on Sugar", 
WT/DS265/AB/R, para. 7; "Mexico – Anti-Dumping Measures on Rice", WT/DS295/AB/R, para. 7; "US – Upland 
Cotton" (Article 21.5 – Brazil) (AB), WT/DS267/AB/RW, para. 14; "US – Antidumping and Countervailing Duties" 
(China), WT/DS379/7; "EC – Fasteners" (China ), WT/DSB/M/301, para. 11; " United  States – Continued 
Suspension of Obligations in the EC – Hormones Dispute" (AB), WT/DS320/AB/R, and "Canada – Continued 
Suspension of Obligations in the EC – Hormones Dispute" (AB), WT/DS321/AB/R, para. 29 (adopted 
14 November  2008) (letters by the European Communities, the United  States, and Canada); Join t 
Communication from the United  States and Mexico, "United  States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products", WT/DS381/13 (19  April 2012);  and Joint Communication from 
the United  States and China, "China – Measures Related to the Exportation of Various Raw Materials", 
WT/DS394/14 (13  January  2012).  WT/DSB/M/414  
 
- 13 - 
 
  90 days.5 For example, in the context of the "EC – Fasteners" dispute, the EU and China had sought 
a DSB decision extending the 60 -day time period for negative consensu s adoption of the panel report 
in Article  16.4 of the DSU.6 At a meeting held on 25  January  2011, the DSB had agreed to the 
jointly -proposed decision.7 
5.10.   Third: In  2011, the Appellate Body had begun ignoring the 90 -day requirement, and some 
WTO Members had e xpressed significant concerns. The Appellate Body's commitment to respecting 
the 90 -day rule had been commendable, and surely had entailed significant efforts on the part of 
those AB members and the Secretariat staff then assisting them. However, later tha t year  (2011), 
starting with the appeal in "US – Tyres (China)", the Appellate Body, without explanation, had 
departed from the long -established practice of consulting and obtaining the parties' consent where 
it had considered it could not meet the 90 -day requirement. At the time of the adoption of the report 
in that dispute, the United  States had informed the DSB of the approach taken by the Appellate Body 
in that appeal and had expressed its concern: "Pursuant to Article  17.5 of the DSU, the Appellate 
Body had notified the DSB through a letter circulated on 27  July that it would not be able to complete 
its Report within 60  days. While the notice had informed the DSB of the expected circulation date, 
it had not noted that this date was beyond the 90 -day dea dline. Moreover, contrary to past practice, 
the notification had made no mention of whether the parties had been consulted on this issue or 
whether each party had agreed. Neither did the Appellate Body Report mention these issues. And in 
fact, both parties  had not agreed that the Report could be provided beyond the 90 -day deadline 
specified in Article  17.5 of the DSU."8 
5.11.   That was the first time the Appellate Body had operated in such a manner. In sharing its 
concerns, the United  States had expressed its view  that the issuance of a report by the Appellate 
Body beyond the 90 -day deadline in the DSU, without meaningful consultations with the parties, 
and even more importantly without the affirmative agreement of the parties, should not be repeated 
in the future.9 At that same DSB meeting where the report had been considered for adoption, several 
other Members had similarly expressed concerns with the Appellate Body's approach, including 
Japan, Australia, Chile, Argentina, Costa Rica, and Guatemala.10 Unfortunately , those statements 
had not changed the Appellate Body's new approach. Other reports had been issued beyond the 
90-day deadline, without consultation with the parties, as the United States would review shortly. 
And the Appellate Body had done so despite the  fact that at least 10  WTO Members had continued 
to express concerns in the DSB in relation to at least 10  reports issued beyond the time limit in 
Article  17.5.11 Despite the Appellate Body's change in practice, at least for a period of time, Members 
                                                
5 See, e.g., "EC – Export Subsidies on Sugar", WT/DS265/24, WT/DS266/24, WT/DS283/5  (procedural 
agreements between the EC, Australia, Brazil, and Thailand to extend the 60 -day time -period in Article  16.4 of 
the DSU); "US – Zeroing" (EC), WT/DS294/11; "Brazil – Retreated Tires", WT/DS332/8 (joint request by the 
European  Communities and Br azil for a Decision by the DSB); "EC – Bananas III", WT/DS27/87 (procedural 
agreement between Ecuador and the European  Communities regarding the time -period under Article  16.4 of the 
DSU); "Thailand Cigarettes", WT/DS371/7 (Joint Request by Thailand and th e Philippines for a Decision by the 
DSB); and "EC Fasteners", WT/DS397/6.  
6 Joint Request by the European  Union and China for a Decision by the DSB (WT/DS397/6).  
7 Minutes of the DSB Meeting on 25  January  2011 (WT/DSB/M/291), p. 15.  
8 Minutes of the DSB Meeting on 5 October  2011 (WT/DSB/B/304), para. 4.  
9 Minutes of the DSB Meeting on 5 October  2011 (WT/DSB/B/304), para. 6.  
10 Minutes of the DSB Meeting on 5 October  2011 (WT/DSB/304), paras. 4 -7, 11-20. 
11  See, e.g., Minutes of the DSB Meeting on 22  February  2012 (WT/DSB/M/313) (adoption of report in 
"China – Raw Materials"; statements by the United  States, Canada, Japan, Costa  Rica, Norway, Australia, and 
Guatemala); Minutes of the DSB Meeting on 23  March  2012 (WT/DSB/M/313) (adoption o f report in "US – Large 
Civil Aircraft"; statements by the United  States and Japan); Minutes of the DSB Meeting on 13  June 2012 
(WT/DSB/M/317) (adoption of report in "US – Tuna II"; statements by the United  States, Japan and Mexico); 
Minutes of the DSB Mee ting on 10  July 2012 (WT/DSB/M/319) (in relation to the appeal in "US – COOL"; 
statements by the United  States, Canada, and Mexico); Minutes of the DSB Meeting on 23  July 2012 
(WT/DSB/M/320) (adoption of report in "US – COOL"; statements by the United  States, Costa  Rica, Japan, 
Australia, Guatemala, and Turkey); Minutes of the DSB Meeting on 18  June 2014 (WT/DSB/M/346) (adoption of 
report in "EC – Seals"; statements by the United  States, Guatemala, Norway, and Japan); Minutes of the DSB 
Meeting on 19  Decemb er 2014 (WT/DSB/M/354) (adoption of report in "US – Carbon Steel (India)": statement 
by the United  States); Minutes of the DSB Meeting on 16  January  2015 (WT/DSB/M/355) (adoption of report in 
"US – CVD (China)"; statements by the United  States, Australia, and Canada); Minutes of the DSB Meeting on 
26 January  2015 (WT/DSB/M/356) (adoption of reports in "Argentina – Import Measures"; statements by the 
United  States, Japan, Chinese  Taipei, Australia, Canada, and Norway); Minutes of the DSB Meeting on 
29 May 2015 (WT/DSB/M/362) (adoption of reports in "US – COOL 21.5", statements by Canada and the 
United  States); and Minutes of the DSB Meeting on 19  June 2015 (WT/DSB/M/364) (adoption of the report in 
"India – Agricultural Products"; statements by the United  States, Norway, and Japan).  WT/DSB/M/414  
 
- 14 - 
 
  had continued to cooperate to address the legal uncertainty raised by the Appellate Body's breach 
of Article  17.5. For example, in the context of the "China – Raw Materials" dispute, despite the failure 
of the Appellate Body to seek the consent of the parties,  the United  States and China had submitted 
a joint communication indicating they had agreed to extend the 90 -day deadline for completion of 
the appeal, and would deem the report to be an Appellate Body report circulated pursuant to 
Article  17.5 of the DSU.  
5.12.   The text of the joint US -China deeming letter read as follows: "Prior to the initiation of the 
appeal in the above referenced dispute, the Appellate Body Secretariat requested to meet with the 
United  States and China to discuss scheduling issues relating to a possible appeal. The Secretariat 
informed the parties that the Appellate Body considered that it would not be possible to circulate the 
Appellate Body Report in an appeal within the 90 -day time limit referred to in Article  17.5 of the 
Understanding on  Rules and Procedures Governing the Settlement of Disputes ("DSU"). In light of 
the complex appeal under consideration by the Appellate Body and the numerous issues likely to 
arise in an appeal in this dispute, the United  States and China agreed to extend the 90 -day deadline 
for completion of the Appellate Body Report.  On 28  October  2011, the Appellate Body informed the 
DSB of its reasons for the delay in providing its report and stated that the report "will be circulated 
to Members no later than Tuesday,  31 January  2012". Consistent with past practice, the 
United  States and China hereby confirm that they will each deem an Appellate Body Report in this 
proceeding, issued no later than 31  January  2012, to be an Appellate Body Report circulated 
pursuant to Art icle 17.5 of the DSU ".12 Unfortunately, Members' cooperation had not continued as 
some Members had become unwilling to take action to address this problem. For instance, in the 
original appeal in the "US – COOL" disputes, Canada, Mexico, and the United  States had jointly 
requested the DSB to adopt a decision to deem an appellate report in each dispute "circulated by 
the Appellate Body no later than 29  June 2012, to be an Appellate Body report circulated pursuant 
to Article  17.5 of the DSU".13 
5.13.   The parties had explained that consideration by the DSB of the draft decision and adoption of 
that decision would serve several useful purposes: "First, through circulation of the draft decision 
and consideration at a DSB meeting, the issue is given full transparency. Mem bers of the DSB c an 
give due consideration to the reasons cited by the Appellate Body in its communication for circulation 
outside the 90 -day time limit as well as the reasons cited by the parties to the disputes for putting 
forward the draft decision. Thr ough circulation of the draft decision, the parties to the disputes are 
informing other Members of their agreement to the circulation of the appellate reports outside the 
90-day time limit. The parties consider that it would be desirable that the Appellate  Body consult 
with the parties and have their agreement, and this draft decision inform s other Members of the 
parties' agreement. Through the process of consideration of the draft decision, Members w ill 
therefore be fully apprised of the circumstances unde r which the reports may come before the DSB 
for adoption.  Second, the parties consider it desirable that the DSB provide greater certainty on the 
adoption procedure that w ill apply to the reports. The reports w ill be put before the DSB for adoption 
by all Members. Any Member may observe that the 90 -day deadline in Article  17.5 of the DSU ha s 
not been met. The parties to the disputes consider that in these circumstances it would be 
appropriate also for the DSB to agree to deem the reports to be Appellate Bod y reports pursuant to 
Article  17.5 of the DSU. Without prejudice to any Member's systemic views on the proper adoption 
procedure, the draft decision, if adopted by the DSB, would increase certainty with respect to the 
adoption process.  Finally, the parties  noted that the language of the draft decision had been drawn 
from the letters filed by a number of Members in numerous past appeals, through which the parties 
to those disputes had expressed their willingness to deem the reports in those appeals to be 
Appellate Body reports pursuant to Article  17.5 of the DSU ".14 
5.14.   Unfortunately, some WTO Members had indicated informally that they would not support the 
proposed DSB decision. That choice had been, and was, regrettable. Those WTO Members had 
chosen to ignore a clear breach of the DSU. They had refused to recognize the role of WTO Members 
to administer the rules of the DSU. They had refused to support the parties to the dispute to address 
a serious procedural concern. And, as Members shall see, their refusal appa rently had encouraged 
the Appellate Body to exceed the 90  days more frequently and by increasing amounts. It was also 
worth noting that the parties, in the communication for that proposed decision, had already identified 
                                                
12 Joint Communication from the United  States and China (WT/DS394/14).  
13 WT/DS384/15 and WT/DS386/14.  
14 WT/DS384/15 and WT/DS386/14.  WT/DSB/M/414  
 
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  that there had been concerns relate d to the adoption procedure for reports circulated after the 
90-day deadline in the DSU. This had been six  years ago – this was not a new issue.  
5.15.   Fourth: Since  2011, the Appellate Body had frequently and increasingly breached its 90  days 
obligation. Prior t o the appeal in "US – Tyres (China)" in  2011, excluding the EU and US large civil 
aircraft disputes, the average length of an appeal had been approximately 90  days. As noted, in 
those rare instances where the Appellate Body had exceeded 90  days, it had don e so with the 
agreement of the parties to the dispute. However, since the Appellate Body's unexplained change of 
approach in  2011, the situation was very different. The average length of appeals since then, again 
excluding the EU and US large civil aircraf t disputes, was approximately  149 days. That is, an appeal 
had taken, on average, 59  more days, which was an increase of 66  per cent (two -thirds).  In fact, if 
one considered only the appeals since  2014, the problem was even more striking. Since May  2014, 
not a single appeal had been completed within the 90 -day deadline. The average over that 4.5  year 
period was 163  days.  What was clear from the data was that the length of appeals had continued to 
increase from the point at which the Appellate Body had stopp ed respecting the 90 -day deadline 
established by Members in Article  17.5 of the DSU. That is, once the Appellate Body had asserted 
that it had had the authority to take whatever time it considered appropriate for individual appeals, 
it had also apparently decided that the appropriate time period would, almost always, be more than 
90 days. It was also worth noting that the Appellate Body had also stopped observing the obligation 
in Article  17.5 of the DSU to provide the DSB with an estimate of the period wit hin which it would 
submit its report. Recent communications from the Appellate Body simply informed Members that 
the Appellate Body would not meet the 90 -day deadline, without providing any estimated date for 
when the Appellate Body would circulate a repor t. This problem may also relate to other systemic 
concerns Members had expressed. For example, an appeal would take longer where the Appellate 
Body spent valuable time addressing issues that were not necessary to resolve a dispute.  
5.16.   Fifth: The Appellate Bod y created reasons for breaching the rule rather than changing its 
behaviour to ensure compliance with the rule. The Appellate Body had for many years apparently 
considered that it was not possible to issue reports within the 90 -day deadline. The United  States 
had two reactions to that notion: first, the United States did not see objective evidence to support 
it; and second, and more importantly, that it was not within the Appellate Body's authority to 
disregard or amend the DSU. On the first point, the Appe llate Body seemed to assert that under 
Article  17.12, it must "address each of the issues raised" in the appeal – as if this meant that the 
report must write an interpretation and reach the merits on each issue. But Members knew this was 
not true because t he Appellate Body itself had, over and over, exercised judicial economy on issues 
on appeal – which meant it did not address the merits of that claim.15 And it was appropriate to 
exercise judicial economy because to "address" an issue did not mean to write an interpretation; it 
meant to think about and dispose of the issue appropriately, which could also mean not writing an 
interpretation.16 
5.17.   Appellate Body reports also provided compelling evidence that the Appellate Body was not 
making every effort to issue i ts reports within 90  days. How did Members  know this? Because in 
multiple appeals, the Appellate Body had reached issues not necessary to resolve the appeal. In this 
regard, the United States recalled that the report in "Argentina – Measures Relating to Tr ade in 
Goods and Services" had been issued 167  days after the notice of appeal, but more than two -thirds 
of the Appellate Body's analysis – 46 pages – had been in the nature of obiter  dicta. In that appeal, 
having resolved the first, threshold issue of "li keness", it would have been appropriate to stop the 
analysis at that point. Instead, the Appellate Body had gone on to consider issues on appeal that 
the Appellate Body itself had considered not necessary to resolve the dispute.17 
                                                
15 See, e.g., "US – Upland Cotton" (AB), paras. 510 -511, 747, where the Appellate Body refrained from  
interpreting provisions of the covered agreements where doing so was "unnecessary for the purposes of resolving 
[the] dispute" . See also "India – Solar Cells" (AB), paras. 5.156 -5.163.  
16 Oxford Dictionary online: "Address" (third definition): "think about  and begin to deal with (an issue or 
problem)".  
17 "Argentina – Measures Relating to Trade in Goods and Services" (AB), para. 6.83 ("Our reversal of these 
findings [on likeness] means that the Panel's findings on "treatment no less favourable" are moot beca use they 
were based on the Panel's findings that the relevant services and service suppliers are "like". Moreover, as a 
consequence of our reversal of the Panel's "likeness" findings, "there remains no finding of inconsistency with 
the GATS. This, in turn,  renders moot the Panel's analysis"...pursuant to Article XIV(c) of the GATS 
and...paragraph 2(a) of the GATS Annex on Financial Services".). But after clarifying that all of the Panel's 
findings other than "likeness" were rendered moot, the Appellate Body  in paragraph 6.84 states that "[w]ith WT/DSB/M/414  
 
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  5.18.   Similarly, as the United S tates had explained with regard to the appeal in "Indonesia  – Import 
Licensing Regimes" in 2017, once the Division in that appeal had found that  Article XI:1 continued 
to apply to agricultural products and had upheld the Panel's findings that each of the challenged 
measures had been inconsistent with that provision, the Division could and should have refrained 
from substantively addressing the remainder of Indonesia's claims, none of which had any potential 
to alter the DSB recommendations and rulings.18 Unfortunately, it had not so refrained, and the  
report had been issued 265  days after the date of appeal.  
5.19.   Similarly, at the DSB meeting in May  2018, the United  States had explained that the appeal 
in "EU – Countervailing Measures on Certain PET from Pakistan " could and should have been resolved 
upon Pakistan's statement that it had sought no recommendation on the EU's withdrawn measure. 
In this regard, the United States had agreed with the EU's appeal that Pakistan's alleged "dispute" 
had been a purely adviso ry exercise. And as the United States had explained at the last DSB  meeting, 
the United  States had further agreed with the EU that the DSU did not grant WTO  adjudicators the 
authority to issue advisory opinions regarding the interpretation of provisions of  the covered 
agreements in the abstract, and outside the context of resolving a dispute.19 And yet the report in 
that dispute had been issued 258  days after the notice of appeal. These reports and others therefore 
did not support the notion that it was not possible for the Appellate Body to comply with the 90 -day 
rule in DSU Article  17.5. Second, and more importantly, it was simply not the Appellate Body's place 
to disregard or amend the DSU. In the absence of a DSU amendment, or other appropriate DSB 
action , Article  17.5 set out a rule. The 90 -day deadline had been recently referred to as a "great 
rule"; whether it was, or was not, it was a "rule". Because WTO Members had not amended 
Article  17.5 to provide for an exception, it was the responsibility of the Appellate Body to follow that 
rule. When a rule was not followed, the Appellate Body diminished the rights of WTO Members, 
contrary to DSU Article  3.2, and undermined confidence in the WTO as a whole.  
5.20.   Sixth: It was past time for WTO Members to meet their responsibility to administer the WTO  
rules-based system according to the rules. WTO Members urgently needed to find solutions to this 
rule-breaking. Of course, WTO Members themselves may assist by focusing their appeals on issues 
that were material to the outcome of the dispute. And the Appellate Body could approach appeals 
by focusing on addressing only those issues necessary to resolve a dispute promptly. But most 
importantly, a rules -based system needed the adjudicators to follow the rules of the system.  It was 
simply not tenable for the Appellate Body, in seeking to help ensure Members observe their 
obligations under the WTO agreements, to itself ignore the requirements of the DSU.  
5.21.   Members would recall that the WTO Membership had had discussions recently  on the 
consequences of issuance of an appellate report that was not in conformity with Article  17 of the 
DSU. As this statement made clear, Article  17.5 and the 90 -day deadline was a fundamental rule 
and critical piece of Article  17. The consequence of th e Appellate Body choosing to breach DSU  rules 
and issue a report after the 90 -day deadline would be that this report no longer qualified as an 
Appellate Body report for purposes of the exceptional negative consensus adoption procedure of 
Article  17.14 of t he DSU. No party should bear uncertainty as to the adoption of a report due to the 
adjudicator's unwillingness to follow the rules or obtain the DSB's agreement to deviate from those 
rules.  
5.22.   If Members failed to take responsibility for administering and mai ntaining the system, and did 
nothing to address this growing problem, Members could expect the length of appeals to continue 
to grow, as they had for the last seven  years. Members could expect the dispute settlement system 
to move further way from the prin ciple of prompt settlement reflected in DSU Article  3. Members 
could expect that the system would become even less effective for resolving disputes, diminishing 
WTO Members' desire and willingness to bring their disputes to the WTO. The consequence would 
be to further erode support for the dispute settlement system and for the WTO as a whole. If any 
Member disagreed with the US understanding of the plain text of Article  17.5, the United States 
looked forward to hearing how that Member read that obligation. For any other Member, the 
                                                
these considerations in mind, we turn to address the issues raised in Panama's appeals ". That is, after clarifying 
that Panama's appeals concern "moot" panel findings, the Appellate Body goes on to address those moot appeals. 
That approach does not reflect the role of dispute settlement as set out in the DSU and, as the report was issued 
after 90  days, is in breach of Article  17.5 of the DSU.  
18 See US statement at 22  November  2017, DSB Meeting at https://geneva.usmission.gov/wp -
content/uploads/2017/11/Nov22.DSB_.pdf  (item 5).  
19 See US statement at 28 May 2018, DSB Meeting at https://geneva.usmission.gov/wp -
content/uploads/2018/05/May28.DSB_.Stmt_.as -deliv.fin_.public.pdf  (item 10).  WT/DSB/M/414  
 
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  United  States looked forward to engaging them to finally address this longstanding, and still urgent, 
problem.  
5.23.   The representative of the European  Union  said that his delegation had listened with interest 
to the statement made by t he United  States. The EU was of the view that there were two  issues that 
had to be clearly distinguished. First, it was clear that WTO Members would prefer a prompt 
resolution of disputes and this was one of the guiding principles of the DSU set out in Art icle 3.3 of 
the DSU. This principle was reflected in the various time -frames stipulated in the DSU, including in 
Article 17.5 of the DSU. In addition to prompt settlement, Members also sought high -quality rulings. 
The system served, inter alia, to "preserv e the rights and obligations of Members" under the covered 
agreements, and the EU would not wish to see this to be compromised as the expense of faster 
rulings, in cases where it was unreasonable to expect a ruling within 90  days, given the overall 
circums tances. The EU was open to discuss this issue and considered that this discussion should 
start with the question: What were the underlying causes for delays. The EU believed that the answer 
to this question could be found in the Appellate Body communicatio ns pursuant to Article  17.5 of the 
DSU. These were, to a large extent, systemic issues such as the workload and resources that 
Members would need to address if the situation had to be improved. In addition, the situation had 
of course worsened due to the c urrent blockage of new Appellate Body appointments. It was striking 
to criticize the Appellate Body for delays, while at the same time not allowing new Appellate Body 
appointments.  
5.24.   Second, there was the legal issue regarding the procedure for the adoption  of Appellate Body 
reports, which the United  States had raised again at the present meeting. In this regard, the 
situation was very clear, pursuant to Article  17.14 of the DSU, "[a]n Appellate Body report shall be 
adopted by the DSB and unconditionally acc epted by the parties to the dispute unless the DSB 
decides by consensus not to adopt the Appellate Body report…". The DSU rule for the DSB to adopt 
the Appellate Body report by negative consensus was absolute. It was not conditional on any other 
paragraph of Article  17 or any other DSU provisions. In other words, it remained valid in the same 
way for a "late" Appellate Body report as for a "timely" Appellate Body report. There was nothing in 
the DSU that would suggest a different interpretation. In particul ar, Article  17.5 of the DSU did not 
attach any procedural consequence to the exceeding of the 90 -day time -frame.  
5.25.   The EU noted that the United  States had referred to "deeming letters" and had suggested that 
the parties to disputes should enter into such "d eeming letters". The proposal that parties would 
need to agree to the circulation of a late report appeared to undermine the adoption procedure by 
negative consensus by adding the requirement for prior agreement by the parties. This was 
inconsistent with t he clear wording of Article  17.14 of the DSU. The same applied to the proposal 
that the DSB would need to agree, by positive consensus, to the circulation of a late report. This 
would be inconsistent with Article  17.14 of the DSU. The EU recognized that th e practice with regard 
to the so -called "deeming letters" had evolved over time. But this practice had not altered the basic 
principle that Appellate Body reports were adopted by negative consensus. In fact, there were 
numerous examples of Appellate Body r eports circulated outside the 90 -day timeframe, without the 
so-called "deeming letter" from the parties, which had been adopted by negative consensus. There 
were two such examples at the previous DSB meeting, namely, the Appellate Body Reports in the 
cases  "EC and Certain Member States – Large Civil Aircraft" (DS316) and "EU – PET (Pakistan)" 
(DS486), both of which had been adopted with negative consensus. In concluding, the EU noted that 
it considered that the US intervention touched upon an important issu e with regard to delays and 
the EU stood ready to engage on this matter in a constructive manner. However, pending a solution 
to this matter, there was no doubt about the validity of Appellate Body reports.  
5.26.   The representative of Brazil  said that his countr y welcomed the discussion of procedural or 
substantive matters that could contribute to the improvement of the WTO dispute settlement 
system. All Members wanted a system that was independent, efficient, competent and able to 
provide high -quality reports. W ith regard to the issue of the 90 -day period for the circulation of 
Appellate Body reports, it was important that Members approached it from the proper perspective. 
It could not go unnoticed that the current discussion was taking place at the same time as the 
Appellate Body was being prevented from having its full composition, which would, of course, allow 
it to operate more expeditiously.  
5.27.   Only two  days ago, Brazil, and several others, were again participating in an Appellate Body 
hearing. Like in many oth er disputes, the whole factual and legal record of the case, at the Panel 
and appeal stage, had comprised thousands of pages in submissions, statements, answers to WT/DSB/M/414  
 
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  questions and exhibits. Brazil noted that those who had the opportunity to participate, or w as 
present, in an Appellate Body hearing would realize the scope and magnitude of the task imposed 
on the WTO dispute settlement system and the Appellate Body, and the rational and dialectic process 
that had been developed together by the parties and the a djudicators in search for the best solution 
to the most intractable legal issues.  
5.28.   In dealing with this Agenda item, a broader perspective was required. First, it was important 
to recall that the 90 -day period had been defined in the early nineties and in light of the experience 
that had been accumulated in the past, the GATT  times, especially in the eighties. An experience, 
needless to say, that had lacked an appeal stage, the duration of which had been defined according 
to other parameters. Members also k new that, with the establishment of the WTO, the level of 
complexity of disputes, the sheer number of cases and the evolution of legal argumentation had 
marked a substantial shift from the way things used to be done before. From this perspective, it 
would be reasonable to assume that the deadlines for new appeals were unrealistic. Needless to say, 
that the time -frames in the DSU were the shortest in the world for any state -to-state adjudicative 
body. Another fact to be taken into account, and which corrobor ated the previous point made, was 
that delays had become common also at the Panel level, for more or less the same reasons. If cases 
were taking much longer at the Panel level, it should be no surprise that no magic would happen at 
the appeal stage, even i f this phase was restricted only to issues of law. Third, it should be noted 
that other deadlines in the DSU were also not observed, such as the 60 -day period for arbitration 
awards  under Article  22.6 of the DSU.  
5.29.   From this perspective, Brazil thus consider ed that the issue of the 90 -day period and of 
time-frames in general, would be better addressed collectively by all Members to find ways to enable 
the Appellate Body and the WTO dispute settlement system to continue delivering high -quality 
reports, if poss ible, within the original time -frames of the DSU, bearing in mind that quality took 
time. He noted that Brazil had not heard from the United States any concrete suggestions on how 
to achieve this objective.  
5.30.   Since the transition from the GATT  to the WTO, M embers had learned to expect and require 
a certain level of legal density in every decision by panels and the Appellate Body. A thorough legal 
analysis was required both as a response to the intricacies of each dispute and each argument, as 
well as to the expectations of domestic constituencies that would hesitate to implement decisions 
that lacked proper legal analyses. However, with more legal density there would be a need for more 
time. It was not difficult to see what could happen if one side of the sca le carried all these 
expectations and legal burden, while the other side carried only a very short time -frame for the task 
and limited resources. Something would have to give. If Members were to add too much weight to 
the work of the Appellate Body and sim ply requested "prompt compliance", but would not 
compensate it with either additional time, better institutional conditions or a change in the way 
Members themselves would conduct their cases, Members would find out that something would have 
to give. By no t recognizing these factors, Members did not capture the dimension of the issue at 
stake.  
5.31.   Brazil noted references made to reverting to the practice of the Appellate Body sending 
"deeming letters" to the DSB, giving notice that the parties to the dispute d eemed a report issued 
after 90  days to be a report issued according to Article  17.5 of the DSU. The problem with this 
practice was that it granted the parties to the dispute the authority not to accept reports of the 
Appellate Body issued after the 90 -day period. An authority, therefore, that in practice reversed the 
negative consensus rule and that was not in the DSU, neither with respect to the parties, nor to third  
parties, nor to the WTO Membership as a whole. Article  17.14 of the DSU, which established  negative 
consensus for the adoption of Appellate Body reports was clear. An interpretation of a provision 
dealing with timeframes that carried consequences of this kind of magnitude could not rest on an 
implicit conclusion, and the letters would seem to c omplicate the issue rather than solve it. The 
parties to a dispute, especially if they were the respondents, would be tempted not to accept the 
adoption of the report, or even worse, to use procedural tactics.  
5.32.   The United  States seemed to be drawing its con clusions from its interpretation of a provision 
that simply established time -frames. These conclusions were vastly disproportionate to the issue at 
hand. Not unlike the consequences being drawn from the application of Rule  15. In both cases, there 
seemed t o be a non sequitur , namely, non -observance of the 90 -day rule did not necessarily result 
in the report not being a report under Article  17.5 of the DSU or that there should be a change in 
the consensus rule. Similarly, the application of Rule  15 to allow a member of the Appellate Body to WT/DSB/M/414  
 
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  continue serving on an appeal did not necessarily result in the report being subject to positive 
consensus. One reason why Article  17.5 of the DSU did not stipulate the consequences of 
non-observance of the deadlines was, possibly, that the responsibility to comply with the set 
deadlines rested not only on the Appellate Body but also on the parties. No dispute settlement 
system could function well without the cooperation from the adjudicators and the parties to the 
dispute.  According to Brazil's statistics, the average of days for the issuance of Appellate Body 
reports had varied, from 110  days in  2014 to 139  days in  2016. From  2013 to  2017, the average 
had been 136  days. If Members wished this average to go down, they would  need to revisit the issue 
with these considerations in mind, so that the WTO could have the best possible dispute settlement 
system, where efficiency, quality and independence were safeguarded. WTO Members could start by 
filling the Appellate Body vacanci es, an obligation contained in Article  17.2, which, like the provision 
that had been raised under this Agenda item by the United  States, was also preceded by "shall" and 
was a clear obligation which all WTO Members should respect.  
5.33.   The representative of Australia  said that her country took note of the concerns that had been 
raised by the United States at the present meeting regarding compliance with Article  17.5 of the 
DSU. Australia recalled the obligation contained in Article  17.5, that in relation to the  proceedings 
of the Appellate Body, "in no case shall the proceedings exceed 90  days". While Australia was 
conscious of the resource pressures and other challenges facing both the Appellate Body and the 
Secretariat, Australia did see this as an important r equirement. In this regard, Australia noted the 
overarching principle of the prompt settlement of disputes, required by Article  3.3 of the DSU. 
Importantly, the WTO Membership should guard against accepting appellate proceedings exceeding 
90 days as "usual  practice". Australia was willing to engage with others on potential solutions. 
Australia was of the view that this required Members to consider the broader question of why reports 
were taking longer than 90  days and how the WTO as a whole, namely, the WTO  Membership, the 
Appellate Body and the Appellate Body Secretariat, could ensure the 90 -day timeline was routinely 
met. Moreover, where the 90  days could not be met, options should be explored to ensure 
transparency and affirm the principle of adoption of reports by negative consensus.  
5.34.   The representative of New Zealand  said that his country thanked the United  States for the 
detailed explanation of its concerns. It was helpful to better understand the reasons behind the US  
position, and hopefully try to find  a way forward. In New  Zealand's view, adherence to the time -
frames, set out in Article  17.5 of the DSU, was important for ensuring the prompt settlement of 
disputes. For this reason, Members had set the time -frames in the first place. New  Zealand thus 
considered that these time -frames should only be exceeded in exceptional circumstances and not as 
a matter of course, although, in the current situation, the WTO Membership needed to bear in mind 
the resourcing difficulties facing the Appellate Body. However,  while a failure to meet these time -
frames was undesirable, it did not, in New  Zealand's view, call into question the legitimacy of an 
Appellate Body report. New  Zealand did not consider that a report issued outside the time -frames 
in Article  17.5 of the D SU ceased to be an Appellate Body report, or that this should affect the 
method of adoption. New Zealand had heard several points made at the present meeting about how 
the Appellate Body might function in particular cases, but more importantly, Australia h ad also heard 
the reminders that Members needed to be very careful in the way that they compiled the record on 
appeals before the Appellate Body so that these timeframes could be met. New  Zealand stood ready 
to work constructively with other delegations to  try and find solutions to this and other concerns 
that had been raised.  
5.35.   The representative of the Philippines  said that his country took note of the statement made 
by the United States, including its proposal to start a discussion on  five specific issues of concern. 
The Philippines would conduct its own internal review and study of these five issues of concern. 
These were serious issues and the Philippines hoped that the discussions could start in a constructive 
manner with interested delegations. The Phil ippines welcomed the opportunity to engage in such 
discussions to address all issues of concern with the aim of contributing to the strengthening and 
improvements of the rules -based multilateral trading system, while making sure Members kept in 
mind the ma ndate of promoting inclusive growth and development to better the welfare of all 
Members' citizens.  
5.36.   The representative of Japan  said that his country appreciated the high quality of Appellate 
Body reports as well as the Appellate Body's efforts to seek exc ellence in the reports. Japan recalled 
that Article  3.3 of the DSU set out the general principle of "prompt  settlement" for WTO disputes. 
The specific deadlines that applied to the various stages of the WTO dispute settlement process, as 
contained in the D SU, enshrined this general principle of "prompt settlement". Appellate review WT/DSB/M/414  
 
- 20 - 
 
  proceedings were no exception. Indeed, the scope of appellate reviews was "limited to issues of law 
contained in the panel report and legal interpretations developed by the panel " and the discipline of 
the 90 -day time limit in Article  17.5 of the DSU was written in a categorical manner, namely "[i]n 
no case shall the proceedings exceed 90  days". One might say that because of the limited mandate 
of the appellate reviews, the DSU re quired the strict observance of the general principle of "prompt 
settlement", as had been embodied in the 90 -day rule in a categorical manner. The WTO was a 
rules-based multilateral trading system, its rules had to be upheld and its dispute settlement syst em 
"serves to preserve rights and obligations of Members" based on the rules that WTO  Members had 
agreed upon.  
5.37.   If particular reasons forced the Appellate Body to exceed the 90 -day time -frame, it would be 
the responsibility of WTO Members to address any su ch reasons to ensure that the 90 -day rule would 
be strictly and faithfully observed. Any departure from the DSU, even where particular circumstances 
legitimately so required, had to remain an exception rather than a general rule. Japan recalled that, 
as the United  States had explained, prior to  2011, when the 90 -day time limit could not be met, the 
Appellate Body had consulted with the parties involved and had secured their agreement to exceed 
the 90 -day time limit. This practice, which had been developed b y the Appellate Body, had worked 
well. Japan was of the view that in the interest of legal certainty vis -à-vis the adoption procedures 
contained in Article  17.14 of the DSU, it was essential that the Appellate Body sought to secure the 
agreement by the par ties to deem the report to be an Appellate Body report circulated pursuant to 
DSU Article  17.5, when the 90 -day time -period unfortunately needed to be exceeded.  
5.38.   The representative of Canada  said that his country shared some of the concerns that had 
been set out by the United  States. One of the hallmarks of the WTO dispute resolution system was 
the speedy resolution of disputes. This was worth preserving. Canada would welcome more 
information  from the Appellate Body in respect of its inability to meet the 90 -day deadline that was 
set out in Article  17.5 of the DSU and considered that consultations with the disputing parties would 
be advisable when it was not possible to meet the deadline. It w ould also be useful to explore why, 
since 2011, the practice as set out in Article  17.5 had been seemingly abandoned by the Appellate 
Body. In  2011, Canada had called on the Appellate Body to continue its practice of consulting with 
the disputing parties w hen the deadline could not be met. At the same time, Canada had also 
recognized that judicial processes did not lend themselves to neat time -frames. Furthermore, 
Canada did not dispute the Appellate Body's position that the number and complexity of appeals  had 
increased beyond what had been envisioned by the Uruguay  Round negotiators. There were things 
that the Appellate Body could do to get the operations back in line with the timeframes originally 
envisaged, and there were things that WTO Members would ha ve to do as well. As some delegations 
had already pointed out at the present meeting, one of those things would be to start the process 
to fill the Appellate Body vacancies.  
5.39.   Canada was open to discuss pragmatic solutions to this issue and encouraged those who had 
concerns to bring forward their ideas for solutions. Canada was of the view that such solution should 
not seek to reinforce the strict, hard deadline for the completion of Appellate Body proceedings. 
Instead, it would be preferable to have a reason able, aspirational target taking into account the 
timing of procedural steps in an appeal, the need for translations and other issues, and to require 
that the Appellate Body initiated consultations with the disputing parties when it would be unable to 
meet the target.  
5.40.   In addition, consideration could be given to establishing a mechanism for dialogue between 
Members and the Appellate Body that encouraged communication regarding the resource needs of 
the Appellate Body and Members' concerns with the Appellate  Body practice that might negatively 
affect the time -frames for the completion of appellate proceedings. Finally, Canada did not consider 
that an Appellate Body report that was issued outside of the 90 -day timeframe that was set out in 
DSU Article  17.5 cea sed to be an Appellate Body report for the purpose of the reverse -consensus 
adoption rule.  
5.41.   The representative of Norway  said that, without prejudice to her country's position on the 
issues that had been raised in the statement by the United  States, Norway would like to offer a few 
remarks on the circulation of Appellate Body reports after the 90 -day timeframe set out in 
Article  17.5 of the DSU. In Norway's view, transparency was crucial where the Appellate Body was 
not in a position to circulate its report within the 90 -day timeframe. Predictability and legal certainty 
were also key elements in this context. Norway also shared the view that exceeding the timeframe 
did not put into question the validity of the Appellate Body reports. From a systemic point of view, WT/DSB/M/414  
 
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  it was Norway's opinion that the interest of preserving a functioning dispute settlement system had 
to be the common objective when discussing these matters. Norway was ready to join other 
Members in an effort to find a workable solution to this issu e, as well as matters concerning 
scheduling and general workload. Norway thanked the Appellate Body for their comprehensive work 
on disputes in the WTO.  
5.42.   The representative of Mexico  said that her country had noted the US statement and 
appreciated the conce rns raised by the United States. However, Mexico did not share the US views 
due to formal and substantive reasons. Although the concerns were valid, Mexico believed that 
Members' efforts should focus on solving problems, which were at the root of the curre nt paralysis 
of the WTO dispute settlement system, such as the functioning of the Appellate Body with four out 
of seven members. This was a fundamental problem, and one which required urgent and immediate 
attention. Moreover, the discussion of the 90 -day r ule needed to be comprehensive, covering the 
entire WTO dispute settlement process, including issues relating to panels and translation deadlines, 
which Mexico would discuss when addressing the formal and substantive issues.  
5.43.   The WTO Membership had to take  a pragmatic approach to these problems and come up with 
solutions. However, those solutions had to be analysed comprehensively and had taken into account 
both, the formal and the substantive issues that affected the system as a whole. Otherwise, 
Members' solutions would simply be masking problems that affected the very roots of the system. 
With regard to formal reasons, the United  States had noted that according to Article  17.5 of the 
DSU, "[i]n no case shall the proceedings exceed 90  days". Since the word  "shall" was used, the 
United  States contended that there was an obligation. The examination needed to be more detailed. 
In Spanish, the same provision stated that "[e]n ningún caso la duración del procedimiento excederá 
de 90  días". If the WTO Membership compared this with the equivalent provision for panels, 
Members would find that Article  12.9 of the DSU stipulated that "[i]n no case should the period from 
the establishment of the panel to the circulation of the report to the Members exceed nine  months",  
while the Spanish read: "[e]n ningún caso el periódo que transcurra entre el establecimiento del 
grupo especial y la distribucíon del informe a los Miembros deberá exceder de nueve meses".  
5.44.   With regard to provisions in English, the United  States considered  that there was a difference 
between the use of "shall" for the Appellate Body deadline and "should" for the panels. Moreover, 
with respect to the DSU text in English, the United  States overlooked the fact that the Appellate 
Body had taken the view that ce rtain uses of "should" were "shall", since "[a]lthough the word 
'should' is often used colloquially to imply an exhortation, or to state a preference, it is not always 
used in those ways. It can also be used to 'express a duty [or] obligation'". Thus, the Appellate Body 
had understood that "should" did imply an obligation in Article  11 of the DSU ("EC – Hormones", 
paragraph  133) and in Article  13.1 of the DSU ("Canada – Aircraft", paragraph  187). For these 
reasons, Mexico did not see that there was a differ ence between the Spanish and the English texts, 
in other words, the same obligation existed for the Appellate Body and for panels.  
5.45.   To make an "apples -to-apples comparison" between the verb "shall" in Article  17.5 and other 
uses of "shall", Mexico observed  that Article  21.5 of the DSU provided that "[t]he panel shall circulate 
its report within 90  days". Mexico had not heard the same criticism from the United  States or from 
any other Member, despite the fact that compliance reports were not issued within th e period of 
90 days, even though the verb "shall" was also used. The same problem arose with regard to the 
circulation of Appellate Body or panel reports, namely, circulation usually took place outside the time 
limit set in the DSU. In calculating the laps e of days between the establishment of the panel and the 
circulation of the final report, Mexico arrived at an average of 511  days, a significant difference – 
241 days to be precise – if the period of nine  months was considered to be equivalent to 270  days, 
as stipulated in Article  12.9 of the DSU.  
5.46.   Regarding the issuance of Appellate Body reports, Mexico found that there was a lapse of 
112 days, on average, between the notice of appeal and the circulation of the Appellate Body report. 
Thus, only 22  days mor e than the 90  days stipulated in Article  17.5 of the DSU. In other words, the 
criticism of the Appellate Body was based on a delay of 22  days, while a delay of 241  days in the 
case of panels did not appear to be of relevance. The rate of non -observance of the time limit had 
been 93  per cent in the case panels, compared to 31  per cent in the case of the Appellate Body. 
These figures spoke for themselves. Flexibility had been shown with regard to panels, and Mexico 
therefore suggested that the same flexibilit y be accorded to the Appellate Body.  WT/DSB/M/414  
 
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  5.47.   Concerning the formal reasons, the United  States had also reiterated that the Appellate Body 
had followed a practice prior to  2011 whereby participants in appeal proceedings had been consulted 
about the issuance of the  report outside the time limit and that, after that date, the Appellate Body 
had confined itself to informing the parties, by means of a letter, that it would not circulate its report 
on time. Other countries had supported the practice promoted by the Unit ed States.20 The practice 
prior to  2011 had been divided into two parts : (i) the signing of deeming letters21, and 
(ii) consultations with the parties to the dispute that agreed to extend the deadline and such 
agreement was reflected in the Appellate Body re ports in question.22 This pre -2011 practice did not 
resolve the problem of the issuance of reports outside the 90 -day time limit, as it implied that the 
Appellate Body Secretariat should consult or request the consent of participants in appeal 
proceedings. This could create further problems, namely, what would happen if one of the 
participants, despite the reasons it was given, considered that a report had not been issued on time 
and was therefore invalid. This would create serious difficulties for the syste m. Mexico, therefore, 
underscored that knowing the reasons for the issuance of a report outside the 90 -day time limit, 
either through a meeting or a letter, did not resolve the problem of late issuance.  
5.48.   In 2012, Mexico, the United  States and Canada had wor ked on a draft DSB decision aimed at 
ensuring that a collective decision would resolve the problem, rather than a bilateral arrangement 
by means of deeming letters. On that occasion, the talk of a collective decision, which could implicitly 
affect the cons ensus rule in the adoption of reports had given rise to such tension that the three 
proponents had decided to withdraw the item from the Agenda.23  
5.49.   Since  2014, outgoing Appellate Body members had expressed their views on the 90 -day 
timeline in their farewel l statements. In  2014, Mr.  David Unterhalter had commented that "[…] the 
workload of the Appellate Body is unpredictable. There are periods when there are more appeals to 
decide than capacity permits. In these circumstances, we need some rules as to the or der of 
determining appeals. And we need a relaxation of the 90 -day rule ".24 In 2015, Professor Seung Wha 
Chang had stated, "[…] the 90 -day time limit for appellate proceedings and the part -time status of 
Appellate Body Members appear to be incompatible with  the increased size and complexity of appeals 
brought to the Appellate Body".25 In 2016, Ms  Yuejiao Zhang had stated that "[…] the part time 
status of the AB members and 90  days' time pressure for completion of AB  report is not sustainable, 
particularly in times of heavy work load, and given the complexity of legal issues raised in appeals".26 
In 2018, Mr  Ramírez -Hernández had stated that "[t]he 90 -day rule is a great rule. It was for a long 
time a unique feature of the AB process. Nevertheless, the growing c omplexity of WTO disputes, the 
high rate of appeal of panel reports and the number of issues appealed, the amount of jurisprudence, 
and the size of the submissions, among other things, turned out to make the 90 -day deadline 
unrealistic. […] if the Membersh ip wants to keep the 90 -day rule, it may require some sacrifices ".27 
5.50.   Although the WTO Membership had heard from the outgoing Appellate Body members, 
WTO Members had not acted or taken appropriate steps to resolve the issues that had been brought 
to their at tention repeatedly. With regard to the substantive aspects, Mexico considered that 
Members were involved or shared the responsibility for the delays in issuing Appellate Body reports. 
The following were some of the reasons: (i) participants submitted multi ple complaints. Given that 
the Appellate Body had to examine each of them in accordance with Article  17.12 of the DSU, the 
                                                
20 Paragraph  5.6 of the M inutes of the DSB meeting of 26  January  2015, document WT/DSB/M/356.  
21 "United  States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products " 
(WT/DS381/13) (19 April 2012);  "China – Measures Related to the Exportation of Various Raw Materials " 
(WT/DS394/14) (13  January 2012);  "United  States – Definitive Anti -Dumping and Countervailing Duties on 
Certain Prod ucts from China" (WT/DS379/7) (8  February  2011).  
22 "European Communities – Export Subsidies on Sugar " (AB) (WT/DS265/AB/R, WT/DS266/AB/R, 
WT/D S283/AB/R), para. 7 (adopted 19  May 2005) (letters by the European Communities, Australia, Brazil and 
Thailand) (WT/DS265/26, WT/DS266/26, WT/DS283/7);  "United  States – Continued Suspension of Obligations 
in the EC – Hormones Dispute " (AB) (WT/DS320/AB/R) and  "Canada – Continued Suspension of Obligations i n 
the EC – Hormones Dispute " (AB) (WT/DS 321/AB/R), para.  29 (adopted 14  November  2008) (letters by the 
European Communities, the United  States and Canada) (WT/DS320/14 and WT/DS321/14);  "United  States – 
Subsidies on Upl and Cotton: Recourse to Article  21.5 of the DSU by Brazil"  (AB) (WT/DS2 67/AB/RW), para. 14 
(adopted 20  June 2008) (l etters by Brazil and the United  States);  "United  States – Subsidies on Upland Cotton " 
(AB) (WT/DS267/AB/R), para.  8 (adopted  21 March  2005) (letters by Brazil and the United  States). 
23 Page 1 of the Minutes of the DSB meeting of 10  July 2012, document WT/DSB/M/319.  
24 https://www.wto.org/english/tratop_e/dispu_e/unterhalterspeech_e.htm  
25 https://www.wto.org/spanish/tratop_s/dispu_s/changfarwellspeech_s.htm  
26 https://www.wto.org/spanish/tratop_s/dispu_s/yuejiaozhangfarwellspeech_s.htm  
27 https://www.wto.org/spanish/tratop_s/dispu_s/ricardoramirezfarwellspeech_s.htm  WT/DSB/M/414  
 
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  result was that more time was needed to reach a solution; (ii) complaints were submitted under  
Article  11 of the DSU and this require d more work, even though these complaints were rarely 
successful; (iii) given the continued practice of zero -growth budget, the Appellate Body Secretariat 
had not had sufficient staff to deal with cases, and this had meant that the Director -General had had  
to make adjustments within the WTO Secretariat in recent years; (iv)  the current paralysis in 
proceedings due to the three Appellate Body vacancies had only further increased the workload and 
contributed to more delays; and (v) WTO Members had not done en ough to keep the rules up to 
date and to ensure their adjustment to the realities and growing complexities of the cases. Members 
were thus forced to act in accordance with rules written more than 25  years ago, many of which had 
ceased to be close to realit y.  
5.51.   In light of these circumstances, Members did not have to confine themselves to making 
statements or expressing opinions about a change in the consensus rule. The consensus rule was 
clear and allowed no exceptions. If the Uruguay  Round negotiators had w anted the rule to change, 
they would have so agreed. Mexico was therefore open to discuss a possible amendment to 
Article  17.5 of the DSU but any such amendment had to be considered in light of all the 
above -mentioned issues that had to be addressed. Until  then, the DSB had to continue to adopt the 
reports as in the past, without any change to the consensus rule, and the validity of the reports 
should not be called into question. Mexico reiterated its commitment to engage in any discussion 
aimed at improvin g the WTO dispute settlement system.  
5.52.   The representative of China  said that his country had carefully listened to the statements 
made by the United States and the other delegations. With respect to these statements, China 
wished to make the following commen ts. First, Article  17.5 of the DSU provided that the Appellate 
Body should circulate its report within 90  days. This requirement had been negotiated based on 
Members' previous experience during the GATT -period. China also recognized that the Appellate 
Body had tried its best to fulfil this requirement in all the previous cases. However, as the WTO  
dispute settlement system had proved itself as one of the most efficient international judicial 
tribunals, an increasing number of disputes and appeals had been b rought before the panels and 
the Appellate Body. The matters that were being appealed were becoming increasingly complex. 
This explained why appellate proceedings sometimes took longer than originally expected and this 
situation had to be taken into accoun t.  
5.53.   Second, one of the most important functions of the appellate review was to help ensure the 
consistency and predictability of the DSB's recommendations and rulings and the interpretation of 
WTO rules. Ensuring the quality of Appellate Body reports shoul d be a priority for the WTO  
Membership. Members could not ignore the number of cases and their complexity while asking for a 
hard deadline for the circulation of Appellate Body reports. Otherwise, Members risked compromising 
the quality of Appellate Body r eports and undermining the overall effectiveness of the system.  
5.54.   Third, China recognized the value of prompt settlement of disputes. China was willing to 
engage constructively in the discussion to resolve the time limit issue. However, Article  17.2 of the 
DSU provided that "[v]acancies shall be filled as they arise", which was also a Members' obligation. 
China, thus, objected to the actions that had been taken by a specific Member to block the Appellate 
Body selection processes while at the same time critic izing the Appellate Body for not being able to 
deliver an Appellate Body report within the time limit set in the DSU. This was contradictory.  
5.55.   Fourth, China recognized that, in the past, the Appellate Body had informed the disputing 
parties when an Appella te Body report would have to be circulated beyond the 90 -day timeline and 
provided the parties with an explanation for the delay. However, the Appellate Body had its inherent 
right to establish its working procedures and time -tables without the consent of the parties and, 
thus, the Appellate Body should not be required to obtain the parties' approval to do so. Otherwise 
the decision -making process of the appellate review risked being interfered by some parties and the 
independence and impartiality of the Ap pellate Body could be undermined.  
5.56.   Fifth, once an Appellate Body report was circulated , it should be adopted pursuant to 
Article  17.14 of the DSU, namely, it should be adopted by the DSB under the negative consensus 
rule. Parties should not be obliged to enter into bilateral agreements to deem Appellate Body reports 
circulated after 90  days, as Appellate Body reports circ ulated within 90  days as required by the DSU. 
Such practice would bring uncertainties to the adoption of Appellate Body reports and to the WTO 
dispute settlement mechanism, and would risk jeopardizing the impartiality and integrity of the 
Appellate Body. C hina also encouraged the WTO Secretariat to allocate more lawyers to the Appellate WT/DSB/M/414  
 
- 24 - 
 
  Body Secretariat to provide sufficient human resources to accelerate the drafting process and to 
ensure the proper functioning of the system.  
5.57.   The representative of the Russi an Federation  said that her country shared certain views 
expressed by the EU, Brazil, Mexico and China. At the present meeting, the Russian Federation had 
heard that the United  States drew Members' attention to yet another problem, namely, the 
non-issuance  of Appellate Body reports within 90  days. Given the current situation where the 
Appellate Body was weakened by the continued blockage by the US vis-à-vis the Appellate Body 
members' selection processes, the Appellate Body would not be able to circulate it s reports within 
the 90 -day period. Currently, there were only four Appellate Body members with only one division 
instead of two, serving on all appeals. The present situation, thus, made it increasingly difficult, if 
not impossible, to meet the deadlines set in the DSU. Accordingly, while the United States was 
raising a specific issue, it also contributed to this issue through its own actions.  
5.58.   For the Russian Federation, the independence of the Appellate Body and the quality of its 
reports were of utmost importance. The Russian Federation was not ready to sacrifice these aspects 
to ensure compliance with deadlines. The Russian Federation also noted that delays with regard to 
certain deadlines as set in the DSU were a problem that was not specific to the Ap pellate Body. The 
Russian Federation was of the view that it was not enough to name the problem. It was a systemic 
complex issue, which required the collective involvement by all Members. The Russian Federation 
called on the United  States to constructively  engage in a meaningful discussion and offer possible 
ways to resolve the problem at issue. The Russian Federation also called on the entire WTO 
Membership to discuss potential solutions and to find tangible solutions that would strengthen the 
WTO dispute settlement system.  
5.59.   The representative of Uruguay  said that his country co -sponsored the proposal, which would 
be once again presented by Mexico, on behalf of all co -sponsors, under Agenda item  9. Uruguay 
considered that the immediate start of the Appellat e Body selection processes was absolutely 
essential. The Appellate Body was an important component of the rules -based multilateral trading 
system. Uruguay did not understand why exceeding the 90 -day deadline would call into question 
the validity of Appella te Body reports. Uruguay fully appreciated the high quality of the reports and 
the efforts made by the Appellate Body to comply with the established deadlines. Uruguay 
nevertheless welcomed that this matter had been brought to the attention of Members for discussion. 
This discussion had to serve as proof for the WTO Membership's commitment to a rules -based 
multilateral trading system. Uruguay was ready to discuss this matter and any other matter, and 
work in a constructive manner with all Members to ensure a better implementation of the DSU. 
Uruguay stood ready to engage and was of the view that the WTO Membership had to work together 
to find ways, which would enable Members to have a more efficient functioning DSB. In concluding, 
Uruguay noted that if the r ules could not be adhered to, the rules had to be changed, but, for as 
long as the rules were not changed, they had to be complied with.  
5.60.   The representative of Guatemala  said that his country shared the objective of resolving 
disputes in a prompt manner. Ho wever, Guatemala noted that the United  States, in its statement, 
focused on the last sentence of Article  17.5 of the DSU, namely, "in no case shall the proceedings 
exceed 90  days". Based on this sentence, the United  States proposed certain consequences, 
including the need to adopt Appellate Body reports by positive consensus. This suggestion did not 
find any support in the DSU and the United  States had not provided any support for this suggestion. 
The United  States had not explained where in the DSU it foun d the proposed consequence when the 
Appellate Body did not meet the 90 -day deadline. The United  States had also not explained the 
reason as to why the word "shall", contained in the last sentence of Article  17.5 of the DSU should 
prevail over the "shall" i n Article  17.14 of the DSU. Article  17.14 provided that "[a]n Appellate Body 
report shall be adopted by the DSB […] unless the DSB decides by consensus not to adopt the 
Appellate Body report". More importantly, the DSU did not contain any provision that wo uld allow a 
Member to make a unilateral determination on whether an Appellate Body report should or should 
not be considered as an Appellate Body report, in the meaning of Article  17.14 of the DSU. In this 
regard, Guatemala agreed with the EU and others th at this discussion should focus first on the 
underlying reasons for the delays.  
5.61.   Under the current circumstances, not meeting the 90 -day time -frame might not necessarily 
be the sole responsibility of the Appellate Body. The WTO Members might be, in part, r esponsible 
for these delays, and the United  States acknowledged this. Furthermore, Members' responsibility 
also included compliance with other WTO obligations, which in the words of the United States were WT/DSB/M/414  
 
- 25 - 
 
  "mandatory requirements with no exceptions". For ex ample, the mandatory requirement in 
Article  17.1 of the DSU that the Appellate Body "shall be composed of seven persons". Guatemala 
was open and ready to engage constructively in finding solutions to this and any other concerns. 
Guatemala reminded Members that if the DSB did not appoint new Appellate Body members any 
time soon, this discussion would lose all relevance in 2019, if and when the Appellate Body would 
cease to exist.  
5.62.   The representative of Thailand  said that her country took note of the concerns expressed by 
the United  States. It was clear from Article  17.5 of the DSU that in no case the Appellate Body 
proceedings "shall" exceed 90  days. While Thailand took account of the difficulties and challenges 
that Appellate Body members and the Appellate Bo dy Secretariat were facing, exceeding this time -
frame should not be considered standard practice. In this regard, Thailand would support the more 
transparent process that the disputing parties and the DSB would be informed of the reasons when 
the Appellate  Body would be unable to meet the 90 -day time -frame requirement. Thailand stood 
ready to discuss and engage with Members in a constructive manner to address this issue. However, 
as had been pointed out by several Members at the present meeting, Thailand wo uld like to note 
that the concern regarding the delay should not call into question the legitimacy of Appellate Body 
reports, which "shall" be adopted by negative consensus pursuant to Article  17.14 of the DSU.  
5.63.   The DSB took note  of the statements.  
6  CANADA – MEASURES GOVERNING THE SALE OF WINE IN GROCERY STORES (SECO ND 
COMPLAINT)  
A.  Request for the establishment of a panel by the United  States (WT/DS531/7)  
6.1.  The Chairperson  drew attention to the communication from the United States, contained in 
document WT/DS 531/7. She then invited the representative of the United  States to speak.  
6.2.  The representative of the United  States  said that, in 2017, the United  States had requested 
consultations with Canada regarding regulations governing the sale of wine in grocery stor es in the 
Canadian province of British Columbia (BC). Consultations had failed to resolve the dispute. As set 
out in the US  request for the establishment of a panel, the BC regulations governing the sale of wine 
in grocery stores appeared to breach Canada' s WTO obligations. Specifically, the measures at issue 
appeared to be inconsistent with Article  III:4 of the GATT  1994 because they accorded less 
favourable treatment to imported products than to like products of national origin. The 
BC regulations exclude d all imported wine from grocery store shelves, an important retail channel 
for wine sales in BC. It was obvious that such discriminatory measures limited sales opportunities 
for US wine producers and provided a substantial competitive advantage for BC win e. These 
regulations adversely affected US wine producers. Indeed, these measures disadvantaged all wine 
producers not from British Columbia. The United  States urged Canada and all Canadian provinces, 
including BC, to adhere to WTO obligations. For these r easons, the United  States requested the DSB 
to establish a panel to examine the matter set out in the US panel request.  
6.3.  The representative of Canada  said that his country was disappointed that the United  States 
had requested the establishment of a panel at  the present meeting with respect to Canadian 
measures governing the sale of wine in grocery stores in British Columbia. Canada and the 
United  States had held consultations on 25  October  2017. During those consultations, Canada had 
engaged constructively, had provided information on the operation of the measures and had 
responded to US questions. While Canada had not yet been able to resolve this matter through 
consultations, Canada thought that continuing the discussions towards a resolution was appropriat e 
and warranted. Accordingly, Canada was not in a position to agree to the establishment of a panel 
at the present meeting.  
6.4.  The DSB took note  of the statements and agreed  to revert to this matter.  WT/DSB/M/414  
 
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  7  UNITED  STATES – ANTI -DUMPING MEASURES ON  FISH FILLETS FROM VIET  NAM  
A.  Request for the establishment of a panel by Viet  Nam (WT/DS536/2)  
7.1.  The Chairperson  drew attention to the communication from Viet  Nam contained in document 
WT/DS536/2. She then invited the representative of Viet  Nam to speak.  
7.2.  The representative of Viet Nam said that her country thanked the DSB for considering 
Viet Nam's request for the establishment of a panel in the case "United States – Anti-Dumping 
Measures on Fish Fillets from Viet  Nam" (DS536). On 8  January  2018, Viet  Nam had requested 
consultations with the United  States. Consultations had been held in Geneva on 1  March  2018. At 
the consultations, Viet  Nam had reviewed its various claims against the United  States under the 
provisions of the WTO Agreement on Implementation of Article  VI of the GATT  1994 and WTO  
jurisprudence. Viet Nam's principal point had been that each of the claims in Viet Nam's request for 
consultations had been subject to prior WTO dispute settlements and each case had been resolved 
in Viet Nam's favour.  
7.3.  With the exc eption of the issue of timeliness of the request for revocation of the anti -dumping 
duty order on fish fillets by Vinh Hoan, each of the issues had been resolved in Viet  Nam's favour 
"as such" and "as applied" in the two prior cases, which Viet  Nam had pur sued against the 
United  States, as well as in multiple cases that had been pursued by other Members against the 
United  States in WTO dispute settlement proceedings. In this regard, Viet  Nam drew the DSB's  
attention to DS404 and DS429, the two cases in whic h Viet  Nam had been the complaining party. 
DS429 had resulted in the revocation of the anti -dumping duty order on certain frozen warm water 
shrimp from Viet  Nam to the Minh Phu Group, on the grounds of demonstrating the absence of 
dumping in three consecut ive reviews by the US Department of Commerce when a WTO -consistent 
methodology had been used in determining the margins of dumping.  
7.4.  The claims and circumstances with respect to Vinh  Boan in DS536 were nearly identical to 
those in DS429. The only differenc e between Vinh  Hoan's situation in DS536 and Minh  Phu's 
in DS429 was that Vinh  Hoan's request for a revocation had been made after the deadline set by 
the Department of Commerce regulations. However, based on jurisprudence addressing the  
Department of Comm erce deadlines dating back to "United States – Anti-Dumping Measures on 
Certain Hot -Rolled Steel Products from Japan" (DS184), it was practically certain that a panel and 
the Appellate Body would consider the Department's deadlines in this case to have bee n 
unreasonable and WTO -inconsistent. Viet  Nam had made this point very clear during the 
consultations with the United  States. Viet  Nam had also stated unmistakably that this had been a 
case that could be settled without going to a panel and had urged the U nited States to engage 
Viet Nam in settlement discussions. Despite multiple attempts to further engage the United  States, 
Viet Nam had not been successful. Viet  Nam was, thus, left with no choice, but to request the 
establishment of a panel in this dispute . 
7.5.  The representative of the United  States  said that the United States regretted that Viet  Nam 
had sought the establishment of a panel in this matter. As the United  States had explained to 
Viet Nam, the determinations identified in Viet  Nam's request for pa nel establishment were fully 
consistent with WTO rules. Furthermore, Viet  Nam sought to challenge certain items that were not 
measures and would not fall within the scope of a WTO dispute settlement proceeding. For these 
reasons, the United  States did not agree to the establishment of a panel at the present meeting.  
7.6.  The DSB took note  of the statements and agreed  to revert to this matter.  
8  PROPOSED NOMINATION FOR THE INDICATIVE L IST OF GOVERNMENTAL AND 
NON-GOVERNMENTAL PAN ELISTS (WT/DSB/W/623 ) 
8.1.  The Chairperson  drew attention to document WT/DSB/W/623, which contained an additional 
name proposed by the Kyrgyz  Republic for inclusion on the Indicative List of Governmental and 
Non-Governmental Panelists, in accordance with Article  8.4 of the DSU. She then proposed t hat the 
DSB approved the name contained in document WT/DSB/W/623.  
8.2.  The DSB so agreed . WT/DSB/M/414  
 
- 27 - 
 
  9  APPELLATE BODY APPOI NTMENTS: PROPOSAL BY  ARGENTINA; AUSTRALI A; THE 
PLURINATIONAL STATE OF BOLIVIA; BRAZIL; CANADA; CHILE; CHINA ; COLOMBIA; 
COSTA  RICA; DOMINICA N REPUBLIC; ECUADOR; EL  SALVADOR ; THE EUROPEAN  UNION ; 
GUATEMALA; HONDURAS;  HONG  KONG, CHINA; I CELAND; INDIA; INDON ESIA; ISRAEL; 
KAZAKHSTAN; KOREA; M EXICO; NEW  ZEALAND; NICARAGUA; NORWAY; P AKISTAN; 
PANAMA; PARAGUAY; PE RU; THE RUSSIAN  FEDE RATION; SINGAPORE; S WITZERLAND;  
THE SEPARATE CUSTOMS  TERRITORY OF TAIWAN , PENGHU, KINMEN AND  MATSU; 
TURKEY; UKRAINE; URU GUAY; THE BOLIVARIAN  REPUBLIC OF VENEZUE LA AND VIET  NAM 
(WT/DSB/W/609/R ev.4) 
9.1.  The Chairperson  said that this item was placed on the Agenda of the present meeting at the  
request of Mexico on behalf of several delegations. In this regard, she drew attention to the proposal 
contained in document WT/DSB/W/609/Rev.4 and invited the representative of Mexico to speak.  
9.2.  The representative of Mexico  said that the delegations referred to in document 
WT/DSB/W/609/Rev.4 had agreed to submit the joint proposal dated 17  May 2018 to launch the 
Appellate Body selection processes. M exico, speaking on behalf of 67  Members, said that the 
considerable number of  co-sponsors of this joint proposal reflected the concern about the current 
situation in the Appellate Body, which was seriously affecting the WTO's work and the functioning of 
the dispute settlement system and was against the best interest of its Members.  Mexico noted that 
WTO Members had a responsibility to safeguard and preserve the Appellate Body, the dispute 
settlement system and the multilateral trading system. Thus, it was their duty to launch the selection 
processes for new Appellate Body members, a s set out in the proposal before the DSB at the present 
meeting. Mexico recalled that this proposal sought to : (i) start three selection processes, namely: 
to replace Mr. Ricardo Ramírez -Hernández, whose second term had expired on 30  June 2017; to fill 
the vacancy that had arisen with the resignation of Mr. Hyun Chong Kim with effect from 
1 August  2017; and to replace Mr.  Peter Van den Bossche, whose second term had expired on 
11 December  2017; (ii) to establish a Selection Committee to carry out the proces ses; (iii) to set a 
deadline of 30  days for the nominations of candidates; and (iv) to request the Selection Committee 
to make its recommendations within 60  days from the deadline for nominations of candidates. While 
the proponents were flexible with regar d to the deadlines for the selection processes, these should, 
however, take into account the urgency of the situation. The co -sponsors of the proposal continued 
to urge all Members to support this proposal in the interest of the multilateral trading system  and 
the dispute settlement system.  
9.3.  The representative of the United  States  said that the United  States thanked the Chairperson 
for the continued work on these issues. As the United States had explained in prior meetings, the 
United States was not in a pos ition to support the proposed decision. The systemic concerns that 
the United States had identified remained unaddressed. For example, concerns arose from the 
Appellate Body's decisions that purported to "deem" as an Appellate Body member someone whose 
term of office had expired and thus was no longer an Appellate Body member, pursuant to its 
Working Procedures for Appellate Review (Rule  15). The United States noted the respect that some 
Members had expressed at the last meeting the need for the DSB to obse rve its obligations under 
the DSU. In this regard, the United States recalled that it was the DSB, not the Appellate Body, that 
had the authority to appoint Appellate Body members and to decide when their term in office 
expired28, and so it was up to the DS B, not the Appellate Body, to decide whether a person who was 
no longer an Appellate Body member could continue to serve on an appeal. This was an area of 
responsibility that the DSB needed to address, and the United States appreciated that Members had 
expressed a willingness to engage on this issue.  
9.4.  In past months, the United States had drawn attention to at least two aspects of the Appellate 
Body's unsolicited background note on Rule  15 that raised concerns. The United States had noted 
that the document had failed to provide a correct or complete presentation of the issue, including 
on past Member statements and other international tribunals. The United States had asked for 
clarification to be provided by the Appellate Body on those misstatements and cont inued to await an 
answer. The United States remained resolute in its view that Members needed to resolve that issue 
as a priority. A number of ideas had been mentioned in the context of informal discussions in which 
the United States had participated, repr esenting a diversity of views on possible solutions. The 
                                                
28 Understanding on Rules and Procedures Governing the Settlement of Disputes, Arts. 17.1, 17.2 
("DSU"). WT/DSB/M/414  
 
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  United  States therefore would continue its efforts and its discussions with Members and with the 
Chairperson to seek a solution on this important issue.  
9.5.  The representative of the European  Union  said that his delegation referred to the statements 
made in previous DSB meetings. Its position remained unchanged. The EU would, thus, not repeat 
its statements at the present meeting. The EU noted that with each passing month the gravity and 
urgency of the si tuation increased and that WTO Members had a shared responsibility to resolve this 
issue as soon as possible. The EU also thanked all Members that had co -sponsored the joint proposal.  
9.6.  The representative of Canada  said that his country referred to the state ment that Canada had 
made in respect of this matter at the previous DSB meeting. Canada's position had not changed. 
Canada urged the United  States to allow for a process or, if necessary, several processes to select 
new Appellate Body members.  
9.7.  The represen tative of the Russian  Federation  said that her country referred to the statement 
made by the Russian Federation on this matter at the previous DSB meeting.  
9.8.  The representative of Norway  said that her country continued to encourage all Members to 
support the  proposal to launch the Appellate Body selection processes without further delay. It was 
imperative that all WTO Members worked together and showed flexibility and commitment to find 
solutions to surpass the ongoing deadlock. As stated on previous occasion s, Norway did not agree 
that the process of filling vacancies should be dependent on finding solutions to procedural issues 
related to the practice of the Appellate Body. However, Norway reiterated its openness and 
willingness to listen seriously and to en gage constructively with all Members on their grievances with 
the system.  
9.9.  The representative of Switzerland  said that, as others, his country wished to refer to its 
previous statements made on this matter and wished to express its deep systemic concerns in  this 
regard. Switzerland reiterated its call on all Members to engage constructively in discussions on any 
issues raised, and welcomed the substantive discussion on Article  17.5 DSU at the present meeting 
with the objective of moving beyond the present da maging impasse quickly and of ensuring a 
well-functioning of WTO dispute settlement mechanism that would be fit for the future.  
9.10.   The representative of Chinese  Taipei  said that, like others, his delegation simply wished to 
refer to its statements made at pre vious DSB meetings, regarding this matter. As one of the initial 
co-sponsors of the joint proposal, Chinese Taipei regretted to that no progress had been made on 
this issue for such a long period of time. Chinese Taipei called for a frank and constructive discussion 
among WTO Members, as it believed that this was the only way out of this impasse.  
9.11.   The representative of Pakistan  said that his country wished to refer to its previous statements 
made on this matter. Pakistan expressed, once again, its concern wi th regard to the current impasse 
and called on Members to work together and show flexibility, so as to move forward in a direction 
that would benefit the multilateral trading system. Pakistan felt that Members were all willing to 
work towards a resolution of the current impasse, and, thus, encouraged Members to show the 
utmost flexibility for the proposed solution. Pakistan supported the joint proposal that had been 
presented by Mexico at the present meeting, for the appointment of new Appellate Body member s. 
Pakistan was one of the co -sponsors and called on all Members to agree to the joint proposal.  
9.12.   The representative of Singapore  said that his country reiterated its serious systemic concerns 
about the lengthy delays in launching the Appellate Body selecti on processes. The term of another 
Appellate Body member was due to expire in three  months, on 30  September  2018, and if nothing 
was done by then, the Appellate Body would be down to just three AB members, which was the bare 
minimum to form a division for t he hearing of a case. Singapore appreciated the Chairperson's efforts 
regarding the possible reappointment of the mentioned Appellate Body member and regarding the 
appointment of the other Appellate Body vacancies. Singapore welcomed any positive efforts i n this 
regard. If vacancies were not filled as they arose, this would not only lead to the paralysis of the 
Appellate Body but also shake the foundation of the entire WTO dispute settlement mechanism, 
since panel reports that were appealed to a non -functio ning Appellate Body could not be adopted by 
the DSB and would be rendered unenforceable. Singapore thus urged that all Appellate Body 
vacancies be filled immediately. Systemic issues, which had been raised, could be discussed in a WT/DSB/M/414  
 
- 29 - 
 
  separate process. Singapo re stood ready to engage constructively and work with other Members, as 
well as the Chairperson, to help resolve this impasse.  
9.13.   The representative of Thailand  said that her country thanked Mexico and all co -sponsors of 
the joint proposal for their continued  efforts to resolve the issue regarding the Appellate Body 
vacancies. Thailand supported the launch of the selection processes and regretted that, despite the 
overwhelming internationally raised concerns, the DSB had been unable to reach a decision on this  
matter to date. The Appellate Body crisis had undermined the proper functioning of the WTO  dispute 
settlement mechanism, the impact of which acutely, and inevitably, affected every Member of this 
rule-based Organization. Without prejudice to Thailand's po sition regarding the linkage between the 
Appellate Body selection processes and the systemic concerns identified by the United  States, 
Thailand reiterated its willingness to engage constructively with the WTO  Membership in exploring 
options that could unbl ock the current impasse as soon as possible.  
9.14.   The representative of Colombia , speaking on behalf of the GRULAC, said that the countries in 
question wished to acknowledge the Chairperson's efforts to seek a solution to the problem related 
to the AB deadlock and thanked her for the opportunities to express views on this matter at the 
present meeting. The GRULAC reiterated its deep concern about the present situation, which affected 
the functioning of a very important WTO body. If this problem was not solved so on the Appellate 
Body would be paralysed in the near future. This would put the entire dispute settlement system at 
risk. With the continued delay in launching the selection processes, with three vacancies at present, 
the WTO Membership failed to comply wi th its legal obligations under the covered agreements. This 
had serious systemic consequences and set a bad precedent for the WTO. This situation caused 
damage and affected the image and credibility of the WTO, in particular, in light of the complex 
intern ational 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. The GRULAC could not agree  that these concerns blocked 
present and forthcoming Appellate Body selection processes and prevented Members from meeting 
their legal obligation. The GRULAC reiterated that the proper functioning of the system should not 
be undermined because the systemic  concerns of some Members had not been addressed. 
The GRULAC further noted that a proper interpretation of Article  17.2 of the DSU, read together with 
Article  2 of the DSU, did not warrant the view that positive consensus was necessary to launch  the 
selection processes. The GRULAC, thus, did not understand why these processes had not yet been 
initiated.  The GRULAC called on WTO  Members to understand the seriousness of a prolonged 
blockage of the AB selection processes, and believed that systemic conce rns should be addressed 
on the basis of their own merit. In this regard, the GRULAC urged Members to find a solution to 
resolve this matter. The GRULAC requested the Chairperson to continue to seek a solution for this 
matter.  
9.15.   The representative of Guatemal a said that his country found it regrettable that nothing had 
changed. Guatemala wished to refer to its previous statements made on this matter at previous 
meetings, which were part of the record.  
9.16.   The representative of Australia  said that her country refe rred to its previous statements made 
on this matter and reiterated its serious concerns regarding the DSB's inability to commence an 
Appellate Body appointment process. This situation put at risk the enforceability of WTO rights that 
Members had all enjoye d for 23  years. Australia also acknowledged the concerns that had been 
raised regarding the functioning of the WTO dispute settlement system. Australia remained 
committed to resolving this impasse as a priority, and was ready and willing to work with other s on 
pragmatic solutions.  
9.17.   The representative of Brazil  said that her country found that the current impasse regarding 
the Appellate Body vacancies was already causing concrete nullification and impairment to the rights 
of Members under the DSU, especially those that trusted and used the system to solve disputes 
based on the rules that Members had agreed upon. Members and parties to disputes were facing 
legal uncertainties that were affecting their rights not only to have an appeal report, but also, 
potentia lly, to have a panel report in the future, pursuant to Article  16.4 of the DSU. Brazil wondered 
who would bear the costs of the very concrete and substantial damages that Members incurred, if 
they could no longer count on this system to settle their trade disputes. Brazil noted that any 
problems with, or concerns related to, Rule  15 of the Working Procedures for Appellate Review 
should be addressed and resolved separately and should not be used to serve another purpose. The WT/DSB/M/414  
 
- 30 - 
 
  link between the application of R ule 15 and the Appellate Body selection processes, or the issue of 
negative consensus for the adoption of appellate reports, had no legal merit.  
9.18.   The representative of Hong Kong, China  said that her delegation referred to its previous 
statement made on this  matter at the previous DSB meeting. Hong Kong, China encouraged 
Members to support the joint proposal presented by Mexico and reiterated its deep concern with the 
prolonged impasse over the Appellate Body selection processes. Hong Kong, China noted that s ome 
procedural and systemic concerns had been raised by one Member. Hong Kong, China was prepared 
and committed to engage with all Members constructively in further discussion on a possible way 
forward that could address these concerns. In this regard, Hon g Kong, China invited the concerned 
Member to submit a concrete proposal to facilitate a meaningful discussion.  
9.19.   The representative of Japan  said that his country thanked Mexico for presenting the joint 
proposal, which Japan supported, and referred to its previous statements made on this matter.  
9.20.   The representative of the Bolivarian Republic of Venezuela  said that his country supported 
the statements made by Mexico, on behalf of the co -sponsors, and Colombia,  on behalf of 
the GRULAC. Venezuela also encourage d Members, including the Member that had objected the joint 
proposal contained in document WT/DSB/W/609/Rev.4, to support it in order to avoid any further 
delay in launching the Appellate Body selection processes.  
9.21.   The representative of India said that her country referred to its previous statements made on 
this matter and reiterated its serious concerns about the current impasse in filling the Appellate Body 
vacancies and its effect on the credibility of t he WTO. India was one of the 67  co-sponsors of the 
joint proposal to fill these vacancies as a priority matter. India recognised that the WTO dispute 
settlement system was a central pillar in providing security and predictability in the rules -based 
trading system. With the resurgence of unilateral measures and protectionism, the role of an 
independent and effective guarantor of these rules became all the more important. With the term of 
another Appellate Body member set to expire in three  months, and with no resolution in sight, the 
Appellate Body was moving  even closer to an imminent paralysis. This was a grave situation that 
had already started to undermine the rights and obligations of WTO Members, not only in terms of 
longer delays, but also with regard to uncertainty regarding their right to have a secon d stage of 
review in the form of an appellate process, a right that had been negotiated and agreed by all WTO 
Members. The mismatch between the resources of the Appellate Body and the number, size and 
complexity of the appeals before it, had intensified wi th the ongoing impasse in filling the Appellate 
Body vacancies. India, thus, asked whether it was reasonable to expect a seriously understaffed 
Appellate Body to meet the time -frames stipulated in Article  17.5 of the DSU. India strongly believed 
that the p rocess of filling Appellate Body vacancies should be delinked from the discussions about 
procedural issues and reforms related to the Appellate Body. India had repeatedly stated that it was 
willing to engage constructively with Members that offered concret e proposals and solutions to 
address the concerns that they had about the functioning of the Appellate Body. However, filling 
Appellate Body vacancies should not be linked to this process.  
9.22.   The representative of Korea  said that his country supported the sta tement made by Mexico, 
on behalf of the proponents of the joint proposal, and Korea referred to its previous statements 
made on this matter.  
9.23.   The representative of China  said that his country referred to its previous statements made on 
this matter. As Chin a had previously stated, the United States had an obligation to adhere to all the 
rules to which it had previously agreed. The United States had an obligation to interpret these rules 
in good faith. China also believed that when Members had different views  on a specific issue, 
discussion and negotiations were the best way to move forward. However, the United States had 
refused to engage in a meaningful discussion after it had raised its concerns with respect to the 
functioning of the Appellate Body and had taken actions that exacerbated the current situation. Thus, 
China, once again, urged the United States to meet its commitments under the WTO  Agreements 
and to interpret all WTO rules in good faith.  
9.24.   The representative of Mexico , speaking on b ehalf of the 67  co-sponsors of the proposal, said 
that the proponents regretted that, for the twelfth time, WTO Members had not achieved consensus 
to start the Appellate Body selection processes and had, thus, failed to fulfil their duty as WTO  
Members. Discussions on sy stemic issues should not prevent the Appellate Body from continuing to WT/DSB/M/414  
 
- 31 - 
 
  function fully and Members should comply with their DSU obligation to fill vacancies as they arose. 
By failing to act at the present meeting, the DSB would preserve the current situatio n, which was 
seriously affecting the work of the Appellate Body against the best interest of its Members.  
9.25.   The representative of New Zealand  said that his country thanked Mexico for its leadership. 
While New Zealand did not agree with the linkages drawn, Ne w Zealand, once again, confirmed its 
willingness to engage constructively with all Members and the Chairperson in order to address the 
concerns raised, so that the WTO Membership could move forward and exercise its collective 
responsibility in filling the Appellate Body vacancies as soon as possible.  
9.26.   The representative of Turkey  said that his country also referred to its previous statements 
made on this matter and reiterated its profound disappointment with the current situation and the 
lack of progress re gistered, for more than a year.  
9.27.   The representative of South  Africa , speaking on behalf of the African Group, reiterated its 
previous statement made in this regard. The African Group had already pointed out that recent 
developments could undermine the funct ioning of the dispute settlement system and pose 
unprecedented systemic risks to the multilateral trading system. The African Group remained 
concerned regarding the prolonged impasse in initiating the selection process to appoint new 
Appellate Body members  to fill the three current vacancies. The African Group had also raised the 
matter of the reappointment of Ambassador Servansing and had called on Members, at the previous 
DSB meeting, to agree on a process to ensure that the issue of his reappointment sho uld be resolved 
by September  2018. Recent practices, which had been adopted by the DSB in this regard, could be 
followed. The African Group had heard the concerns, which had been raised regarding the current 
functioning of the Appellate Body, and was of th e view that, in an effort to address them, these 
concerns could be subject to engagement and discussions in good faith. The African Group was of 
the view that, all in all, some of the concerns appeared amenable for resolution in the short term, 
while some other concerns would require deeper discussion. Further clarification of some issues, 
which had been raised in this context, would need to be provided. The African Group would support 
an engagement on all the issues, which had been raised, with a degree of  urgency. The African 
Group believed that the issue of appointment and reappointment of Appellate Body members might 
be conducted in parallel to a constructive debate regarding the concerns raised, with a view to 
improving the functioning of the Appellate Body.  
9.28.   The Chairperson  thanked all delegations for their statements and said that it was regrettable 
that the DSB was, once again, not in a position, at the present meeting, to agree to launch the 
selection processes to fill the three vacancies in the Appel late Body. The Chairperson said that she 
understood that this matter required political engagement on the part of all Members, and noted 
that she was in the hands of Members, and her door remained open to any delegation wishing to 
share ideas or views on t his matter. She therefore invited delegations with views on this matter to 
contact her directly.  
9.29.   The DSB took note  of the statements.  
10  STATEMENT BY THE CHA IRPERSON REGARDING T HE POSSIBLE REAPPOIN TMENT OF 
ONE APPELLATE BODY M EMBER  
10.1.   The Chairperson  said that, under this Agenda item, she would like to make a short statement 
regarding the issue of possible reappointment of one Appellate Body member. She recalled that, at 
the May regular DSB meeting, she had informed delegations that on 15  May 2018 she  had received 
a letter from Mr.  Shree Baboo Chekitan Servansing, in which he had indicated that he would like to 
convey his interest to the DSB to be considered for reappointment as a member of the Appellate 
Body, pursuant to Article  17.2 of the DSU. She h ad also recalled that the first four -year term of 
office of Mr.  Servansing would expire on 30  September 2018 and that, pursuant to Article  17.2 of 
the DSU, he was eligible for reappointment to a second and final term of office. In light of this, she 
had in formed delegations of her intention to consult informally with delegations on the issue of 
possible reappointment of Mr.  Servansing as well as on the process to be followed in this regard. 
She had also invited delegations with views on this matter to conta ct her directly. She said that, at 
the present meeting, she would like to report to Members that her consultations were ongoing and 
she invited, once again, any delegation with views on this matter to contact her directly. She would 
report back to delegati ons on the results of her consultations at the next regular DSB meeting.  WT/DSB/M/414  
 
- 32 - 
 
  10.2.   The representative of South  Africa , speaking on behalf of the African Group, thanked the 
Chairperson for her report on the consultations held on the reappointment of Mr. Servansing. S outh 
Africa believed that the consultations had to begin instantly to ensure that the DSB would be in a 
position to take a decision by September  2018.  
10.3.   The DSB took note  of the statements.  
11  INDONESIA – IMPORTAT ION OF HORTICULTURAL  PRODUCTS, ANIMALS A ND ANIM AL 
PRODUCTS  
A.  Statement by Indonesia  
11.1.   The representative of Indonesia  said that her country wished to inform the DSB that it had 
agreed with the United  States and New  Zealand that the reasonable period of time to implement the 
DSB's recommendations and ru lings in this dispute would be eight months from 22  November  2017, 
i.e. the date the Reports in this dispute had been adopted, and would, thus, expire on 22  July 2018. 
For transparency reasons, Indonesia also wished to inform the DSB that, with regard to t he DSB's 
recommendations and rulings concerning Measure  18, reflected in paragraphs  8.1(b)(iii), 8.1(c)(vi), 
8.6 and  8.7 of the Panel Report (contained in WT/DS477/R and WT/DS478/R), Indonesia, the 
United  States and New  Zealand had mutually agreed that Ind onesia would receive more time to 
undertake relevant changes to ensure compliance, namely, until at least 19  months from the date 
the Reports in this dispute had been adopted. Accordingly, the United  States and New  Zealand would 
not initiate further procee dings under Article  21.5 and/or Article  22.6 of the DSU with regard to 
Measure  18 until at least 22  June 2019. A joint communication to this effect had been circulated to 
the DSB on 19  June 2018 in documents WT/DS477/18, WT/DS477/19, WT/DS478/18 and 
WT/DS4 78/19.  
11.2.   The representative of the United  States  said that the United  States was glad that the parties 
to the dispute had agreed that the reasonable period of time for Indonesia to comply with the DSB's 
recommendations and rulings shall be eight months.  Accordingly, the United States looked forward 
to hearing from Indonesia regarding its compliance when the reasonable period of time expired on 
22 July 2018.  The United  States noted that the parties had also agreed in a separate letter that 
Indonesia would have more time to make the statutory changes concerning Measure  18. 
11.3.   The representative of New Zealand  said that, like Indonesia and the United States, his country 
was pleased to reach a mutual agreement between the co -complainants and Indonesia, regarding 
the reasonable period of time for implementation and looked forward to WTO -consistent compliance 
by Indonesia in accordance with the understandings that had been reached.  
11.4.   The DSB took note  of the statements.  
12  EUROPEAN  COMMUNITIES  AND CERTAIN MEMBER STATES – MEASURES AFFECTING 
TRADE IN LARGE CIVIL  AIRCRAFT  
A.  Statement by the United  States  
12.1.   The representative of the United  States  said that, under Rule  25 of the General Council Rules 
of Procedures, which the DSB also applied, "[d]iscussions on substantive issu es...shall be avoided, 
and the [DSB] shall limit itself to taking note of the announcement by the sponsoring delegation" 
and any reaction by another delegation "directly concerned". The United  States would therefore be 
brief in its statement under this ite m. The text of Article  21.6 of the DSU was clear: following 
adoption by the DSB of a recommendation to a Member to bring its WTO -inconsistent measure into 
compliance with the covered agreements, a Member was to provide status reports on "its progress 
in the implementation of the recommendations". Therefore, there was no obligation to provide a 
further status report in a given dispute, once a Member announced that it had implemented the DSB 
recommendations, regardless of whether the complaining party disagre ed about compliance. The 
EU, however, had been equally clear that it considered Article  21.6 of the DSU to require status 
reports, so long as there was a disagreement between the parties about compliance.  
12.2.   For this reason, the United States was disappointed  to see that the EU had not applied its own 
"systemic" position on status reports and had not filed a status report for the "EU – Large Civil WT/DSB/M/414  
 
- 33 - 
 
  Aircraft" dispute, or even requested an Agenda item for this meeting. As had been made clear at the 
last DSB meeti ng, the United  States considered the EU had failed to comply in this dispute, and this 
was a view that had been confirmed by two sets of conclusions. It was now nearly one month later, 
and yet the only information the United States had regarding the EU's s upposed compliance with 
the recommendations and rulings of the DSB was a document circulated on 17  May 2018. This 
document did not reflect new developments that might somehow resolve this longstanding dispute. 
The document made various assertions that were  so vague they indicated nothing about what, if 
anything, may have been done. The EU had been arguing for a decade that its financing of Airbus 
had reflected market benchmarks. Four sets of dispute reports had disagreed with that assertion. In 
this light, and without any concrete information from the EU, one could not give any credence to the 
EU's assertions regarding compliance.  
12.3.   Given the WTO's most recent non -compliance findings, and given that the EU had provided 
no basis for the United  States to agree w ith its newest compliance claim, on what basis had the EU 
not provided a status report this month? Perhaps the EU considered that, despite the clear view the 
EU had expressed in countless meetings of the DSB, there was a caveat that excused the EU from 
submitting a status report in this dispute. In the past, the EU had suggested that the EU rule had 
not applied because compliance proceedings had been ongoing. Now that those proceedings had 
concluded (with a finding of EU non -compliance), perhaps the EU woul d say the rule still did not 
apply because it had requested new consultations based on the "mystery measures" that the EU had 
not been able to describe. Whatever the justification the EU provided, the United States would ask 
where Members could find the te xt for this EU rule in Article  21.6 or elsewhere in the DSU. That text 
was likely to be as elusive as the EU's compliance steps in this dispute. In fact, the rule the EU 
appeared to be applying was the same rule it had followed in every other dispute as a responding 
party. There was no obligation under the DSU to continue supplying status reports once a responding 
Member announced that it had implemented the DSB's recommendations.  
12.4.   The representative of the European  Union  said that the statement made by the United  States 
had confused the EU delegation. At the outset, the EU thought that the United  States appeared to 
agree with the EU on the interpretation of Article  21.6 of the DSU and that the United  States had 
argued that the EU should have submitted a stat us report in the Airbus case. However, the last part 
of the US statement indicated that the United  States actually did not consider that the EU should 
have submitted a status report in the Airbus case. This made this Agenda item moot. The EU asked 
that if the United  States did not consider that the EU should have submitted a status report in the 
Airbus case, why had the United  States requested the inclusion of this Agenda item. In any event, 
the EU considered that it did not have an obligation to submit a s tatus report in the Airbus case. In 
contrast, the United  States had the obligation to submit a status report in the "Byrd Amendment" 
case. 
12.5.   As the EU had mentioned in previous meetings, there was a difference between the Airbus 
case and the Byrd Amendment c ase. In the Byrd Amendment case, the dispute had been adjudicated 
and there were no further compliance proceedings pending. Under Article  21.6 of the DSU, the issue 
of implementation should remain on the DSB Agenda until the issue was resolved. In the Byrd  
Amendment case, the EU could not agree with the US assertion that it had implemented the DSB's 
ruling. Therefore, the issue remained unresolved for the purpose of Article  21.6 of the DSU and the 
United  States had an obligation to submit status reports. In  the Airbus case, when the Appellate 
Body Report had been issued, the EU had notified to the WTO a new set of measures in a compliance 
communication, as had been tabled at the DSB meeting of 28  May 2018. With respect to the 
measures included in that commun ication, the United States had expressed the view that the EU 
had not yet fully complied with the DSB's recommendations and rulings. In response, the EU had 
requested, on 29  May 2018, consultations with the United  States, under Articles  4 and 21.5 of the 
DSU. Compliance proceedings in this dispute were still pending and the EU, therefore, did not have 
an obligation to submit status reports.  
12.6.   The DSB took note  of the statements.  
__________