RESTRICTED  
  
WT/DSB/M/341  
 
25 April 2014  
(14-2528)  Page: 1/24  
Dispute Settlement Body 
22 January 2014    
 
MINUTES OF MEETING 
HELD IN THE CENTRE WILLIAM RAPPARD 
ON 22 JANUARY 2014 
Chairman: Mr. Jonathan Fried (Canada) 
Prior to the adoption of the Agenda1 
Table of Contents 
1   SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY 
THE DSB ....................................................................................................................... .... 3 
A.  United States – Section 211 Omnibus Appropriations Act of 1998: Status report by 
the United States .............................................................................................................. 3  
B.  United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan: Status report by  the United States ............................................................................ 7  
C.  United States – Section 110(5) of the US Copyright Act: Status report by 
the United States .............................................................................................................. 8  
D.  European Communities – Measures affect ing the approval and marketing of biotech 
products: Status report by  the European  Union ..................................................................... 8  
E.  Thailand – Customs and fiscal measures on cigarettes from the Philippines: Status 
report by Thailand ............................................................................................................  9 
F.  United States – Anti-dumping measures on certain shrimp from Viet Nam: Status 
report by the Un ited States ............................................................................................... 10 
2   UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 
2000: IMPLEMENTATION OF THE RECOMME NDATIONS ADOPTED BY THE DSB .............. 10  
A.  Statements by the Eu ropean Union and Japan ................................................................. 10 
3   CHINA – CERTAIN MEASURES AFFECT ING ELECTRONIC PAYMENT SERVICES ........... 11  
A.  Statement by th e United States .................................................................................... 11 
4   UNITED STATES – ANTI-DUMPING AND COUNTERVAILING MEASURES ON 
LARGE RESIDENTIAL WASH ERS FROM KOREA ............................................................... 13  
A.  Request for the establis hment of a pane l by Korea ........................................................... 13 
5   EUROPEAN UNION – MEASURES ON ATLANTO-SCANDIAN HERRING ......................... 14  
A.  Request for the establishment of a panel by Denmark in respect of the Faroe Islands ............ 14 
6   UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING 
AND SALE OF TUNA AND TUNA PRODUCTS ..................................................................... 15  
A.  Recourse to Article 21.5 of the DSU by Mexico: Request for the establishment 
of a pa nel .................................................................................................................... ... 15 
                                               
1 See pages 2 & 3. WT/DSB/M/341 
 
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  7   PROPOSED NOMINATION FOR THE INDICATIVE LIST OF GOVERNMENTAL 
AND NON-GOVERNMENTA L PANELISTS .......................................................................... 16  
8   UNITED STATES – MEASURES AFFECTING THE PRODUCTION AND SALE OF 
CLOVE CIGARETTES........................................................................................................ 16  
A.  Statement by th e European Union ................................................................................. 16 
9   STATEMENT BY THE CHAIRMAN REGARDING THE SELECTION PROCESS FOR A 
NEW AB MEMBER. .......................................................................................................... 20  
 Prior to the adoption of the Agenda 
 The representative of the European Union said that the EU wished to make a statement under 
"Other Business" in relation to the dispute: "US - Clove Cigarettes" (DS406).  The representative of the United States said that  his country did appreciate the fact that the EU 
had provided the United States with some advance notice and perhaps the EU had even provided 
some other Members notice of its intentions to make a statement under "Other Business" in relation to the "US - Cloves" dispute. While the United States had taken note of the information 
that the EU had provided, the United States, nonetheless, must register its concerns with this 
course of action. In particular, it was the US view that this request did not comport with the DSB's Rules of Procedure: Rules 2, 3 and 4 in particular . Rules 2, 3 and 4 required that a Member make 
a request to have an item inscribed on the Agenda at least ten days before the meeting. This ten 
day rule ensured that Members had sufficient time to consider the item, to confer with capital, and 
to prepare and receive instructions. By not inscribing the item in the regular way, the EU had deprived other Members of the ability to particip ate in the discussion. Even the parties to the 
dispute had only learned of the EU's intentions this week. The United States said that it would also 
point to Rule 25 of the Rules of Procedure, which stated that substantive issues could not be discussed under "Other Business". It would appear that a statement by the EU followed by 
reactions from other parties would be tantamount to substantive discussion by other Members. 
Therefore, before the United States was able to react in full to this request, it said that it would welcome further clarification from the EU as to why it was not possible to inscribe this item on the Agenda with respect to the requirement for ten days advance notice and why it had not been 
preferable to inscribe the item on the Agenda of the next DSB meeting instead.  
 The representative of the European Union said that  the EU did not expect to get into a procedural 
discussion at this point. The issue was what cons tituted substantive discussions. There was also a 
fairly clear rule about "Other Business" and the EU was not asking the DSB to take a decision at the present meeting. The EU was just drawing Me mbers' attention to the ongoing and, to some 
extent, confidential proceedings. But, the EU felt  that it was important that Members were aware 
about the EU's position on a matter that was ongoing. Delaying it to the next regular meeting of the DSB would not serve the interests of the EU as well as the interests of other Members. In that 
regard, the EU was just making a point of information, a statement and wondered whether this 
was really something that would amount to substantive discussion within the meaning of Rule 25 
of the DSB's Rules of Procedure. The EU underlined that it was not asking the DSB to take any decision or any action at the present meeting. The EU wished to inform other Members that it 
would consider inscribing this matter as a separate item if that was really what was necessary.  
 The representative of the United States said that his country appreciated the further clarification 
that it had received from the EU. The United States was still in a difficult position because it was hard for it to gauge the nature of what was going to be said under "Other Business" by the EU. Additionally, the United States understood that other Members may speak which, in the US view, seemed to be a debate of issues, which was proh ibited under Rule 25 of the Rules of Procedure. 
The United States said that it had been quite clear on its systemic viewpoint. However, under the 
circumstances of the present situation – and without prejudice to how this should operate and the fact that Members should receive ten days' notice so that all Members may be prepared – in these 
narrow circumstances, the United States would pe rmit the Agenda to be adopted as amended and 
proposed by the EU. The United States said that it would also be making a statement under "Other 
Business" in reaction to the EU's statement, but it was unfortunate that other Members may not be 
able to do so. 
 WT/DSB/M/341 
 
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  The Chairman recalled that, in other circumstances of a similar nature, he had reiterated both the 
guiding philosophy and the language of the rule which, indeed, was quite explicit in saying that 
substantive matters should not be raised under "Other Business". Nonetheless, he welcomed the spirit of collaboration and flexibility shown by th e United States. He proposed that the item be 
included on the Agenda under "Other Business". The DSB would listen to the EU's statement and a 
potential statement by the United States and any other responses. The statements may reveal that there was a substantive item to be explored but at that point he would strongly suggest that 
the DSB not pursue those issues in further detail at the present meeting but rather take a 
collective view that one or more Members could add it to the Agenda of a future DSB meeting.   The DSB took note of the statements and adopted the proposed Agenda, as amended. 
 
 1  SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB 
A.  United States – Section 211 Omnibus Appropriations Act of 1998: Status report by 
the United States (WT/DS176/11/Add.133)  
B.  United States – Anti-dumping measures on certain hot-rolled steel products from Japan: Status 
report by the United States (WT/DS184/15/Add.133)  C.  United States – Section 110(5) of the US Copyright Act: Status report by the United States 
(WT/DS160/24/Add.108) 
 D.  European Communities – Measures affecting the approval and marketing of biotech products: 
Status report by the European Union (WT/DS291/37/Add.71) 
 E.  Thailand – Customs and fiscal measures on cigarettes from the Philippines: Status report by 
Thailand (WT/DS371/15/Add.20) 
 F.  United States – Anti-dumping measures on certain shrimp from Viet Nam: Status report by the United States (WT/DS404/11/Add.19) 
 
 1.1.  The Chairman said that he did not want to sound repetitive but wished to urge those 
delegations that would report on implementation to focus their  remarks in a constructive way on 
the approaches that might be taken for a mutually satisfactory resolution of the dispute rather than well-known positions of principle on non-implementation. He noted that there were six sub-
items under this Agenda item concerning status reports submitted by delegations pursuant to 
Article 21.6 of the DSU, and proposed to turn to the first sub-item.   
A.  United States – Section 211 Omnibus Appr opriations Act of 1998: Status report by 
the United States (WT/DS176/11/Add.133) 
1.2.  The Chairman drew attention to docu ment WT/DS176/11/Add.133, which contained the 
status report by the United States on progress in the implementation of the DSB's 
recommendations in the case concerning US Section 211 Omnibus Appropriations Act of 1998. 
1.3.  The representative of the United States said  that his country had provided a status report in 
this dispute on 9 January 2014, in accordance with  Article 21.6 of the DSU. At least six bills had 
been introduced in the current Congress in relation to the DSB's recommendations and rulings in 
this dispute. These included H.R. 214, H.R. 778, H.R. 872, H.R. 873, H.R. 1917 and S. 647. The 
US Administration would continue to work on solutions to implement the DSB's recommendations and rulings. 
1.4.  The representative of the European Union sa id that the EU thanked the United States for its 
most recent status report and the statement made  at the present meeting. The EU hoped that the 
US authorities would resolve this matter very soon. 
1.5.  The representative of Cuba said that, since this was the first DSB meeting held in 2014, her 
country considered it appropriate to refer to the Annual Report of the DSB, which had been 
circulated on 1 November 2013 in document WT/DSB/61. She noted that items 9 and 10 of that WT/DSB/M/341 
 
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  Report reflected progress in the implementation of the DSB's recommendations and rulings 
(surveillance item) and referred to matters raised under Article 21.6 of the DSU. The report listed 20 cases pending before the DSB where there was no compliance as of the end of 2013. Twelve of those, more than half, concerned the United States. Cuba found this alarming since the 
United States was a country with great economic power and benefitted the most from the WTO 
dispute settlement system. These cases of non-compliance included Section 211, which remained in force despite the fact that as far back as 2002, the DSB had ruled that Section 211 was 
inconsistent with the TRIPS Agreement and the Pa ris Convention. The United States had thus far 
submitted a total of 133 status reports, none of which had provided any solution to settle this dispute. In fact, these reports were no more than repetitive statements and did not meet the objective of reporting on "progress in the implem entation of the recommendations or rulings" as 
required under Article 21.6 of the DSU. As a result, the intellectual property rights of the owner of 
a well-known Cuban trademark had been undermined in the United States, a self-proclaimed leader and defender of those rights. According to the WIPO report, "2013 World Intellectual 
Property Indicators", although world economic recovery since the 2009 crisis had been slow, IP 
filing activity had increased at an even faster pace than before the crisis (9.2% in 2012, the fastest growth in 18 years). In that context, the report revealed that the United States Patent and 
Trademark Office (USPTO) had ranked fourth in te rms of world growth in the number of filings. 
Previously, for more than 100 years, it had ranked  among the first three in the world. In other 
words, the United States was also one of the WTO Members that benefitted the most from intellectual property protection and internationa l intellectual property standards. However, it 
continued to blatantly violate those rights and consistently failed to comply with the DSB's 
recommendations. Section 211 was found to be inconsistent with WTO rules and the DSB had adopted a recommendation to bring it into conformi ty with the provisions of the TRIPS Agreement. 
This illegal legislation undermined the legitimate rights of Cuban trademark owners, in this case 
the rights of the company CUBAEXPORT, which had been prevented from renewing the registration 
of the Havana Club trademark in the United States after holding it for more than 30 years. Cuba 
would continue to request that the United States comply with the DSB's recommendations and 
rulings and, in particular, that it repeal Section 211, which had been denounced as forming part of the tangle of measures and legal provisions underlying the unjust and illegal US blockade against Cuba. Cuba noted that, in the most recent US status report in this dispute, there were no longer 
any references to specific draft legislation that would allegedly enable the United States to comply 
with the DSB's recommendations. Cuba, therefore, reiterated its request that the United States update its status report and submit, in writing, updated information on "its progress in the 
implementation of the recommendations and rulings" in this dispute. 
1.6.  The representative of China said that her country thanked the United States for its status 
report and the statement made at the present meeting. China noted that, once again, the 
United States did not report on any progress. China believed that the prolonged situation of non-
compliance in this dispute was highly incompatible with the prompt compliance requirement under the DSU, in particular since the interests of a developing-country Member were affected. The 
legitimate interests of all Members, big or small, should be equally protected in the multilateral 
trading system. In the recent Bali Ministerial Declaration, Ministers reaffirmed their commitment to 
the WTO as the pre-eminent global forum for trade, including implementing trade rules and settling disputes. They also reaffirmed their co mmitment to the regular work of the WTO. The 
implementation of the DSB's recommendations and rulings was an integral part of the dispute 
settlement process. All Members should use best efforts to implement the DSB's recommendations and rulings, in order to meet their obligations under the DSU provisions and to demonstrate their 
commitment to the multilateral trading system, including maintaining its security and 
predictability. China would continue to support Cuba's concerns in this dispute and urged the United States to implement the DSB's rulings and recommendations without any further delay. 
1.7.  The representative of Brazil said that hi s country thanked the United States for its status 
report. Brazil noted that, once again, the United States reported the lack of progress. Brazil 
remained concerned about this situation of non-compliance with the DSB's recommendations and urged the United States to bring its measures into conformity with WTO rules. 
1.8.  The representative of India said that his country thanked the United States for its status 
report and its statement made at the present meeting. India noted with regret that there was no 
change in the situation. India, therefore, rene wed its systemic concern about the situation of 
continued non-compliance, which clearly undermined the credibility and confidence that Members WT/DSB/M/341 
 
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  reposed in the WTO dispute settlement system. In dia urged the United States to report full 
compliance in this dispute without any further delay. 
1.9.  The representative of the Plurinational State of Bolivia said that, as her country had noted for 
the past 12 years, the US status report did not contain any new information on progress towards 
solving this dispute. Bolivia, therefore, reiterated its concern about the US failure to comply with 
the DSB's recommendations and rulings. Bolivia was also concerned about the US lack of political will to resolve this dispute. This situation of non-compliance undermined the credibility and 
integrity of the multilateral trading system and affected the interests of a developing-country 
Member. Bolivia reiterated its call on the United States to comply with the DSB's recommendations and rulings by lifting the restrictions imposed under Section 211. Bolivia supported Cuba's concerns.  
1.10.  The representative of Nicaragua said that his country thanked the United States for its 
status report. Nicaragua, once again, supported Cuba's position concerning Section 211 and the 
right of Cuban owners of the Havana Club Rum trademark. Nicaragua noted that, for more than 
12 years, the US status report did not report on any concrete steps taken towards the 
implementation of the DSB's recommendations. Nicaragua also noted that the most recent status report did not mention any of the legislative initiatives (H.R. 214, H.R. 778, H.R. 872, H.R. 873 
and S. 647) submitted to Congress. This unfortunate ly confirmed the lack of political will on the 
part of the United States to comply with the DSB's recommendations and rulings. Nicaragua was 
concerned about the repeated failure of the United States to comply with its obligations. Non-compliance undermined the credibility and efficien cy of the DSB and the multilateral trading 
system. It could also set a precedent with consequences for other Members, in particular 
developing-country Members. Over the years, Nicaragua had noted that in these disputes the United States had been the principal offender. Nicaragua, therefore, hoped that the United States 
would introduce the necessary legislative reforms without delay so as to comply with the DSB's 
recommendations and rulings. 
1.11.  The representative of the Dominican Republic said that her country thanked the 
United States for its status report regarding Section 211. The Dominican Republic supported the 
concerns expressed by Cuba and, once again, urged the United States to take the necessary steps in order to comply with the DSB's recommendations and rulings. The prolonged situation of non-compliance in this dispute undermined the credibility of the WTO.  
1.12.  The representative of Mexico said that his country, once again, urged the parties to this 
dispute to take necessary steps to comply with the DSB's recommendations and rulings to the 
benefit of all Members, in accordance with Article 21.1 of the DSU. Mexico referred to the US 
status report, which stated that relevant legislation had been introduced in the current 113th 
session of the US Congress. The fact that the Un ited States had submitted legislation showed a 
willingness to comply, but merely submitting the legislation may not be enough. Mexico requested 
that the United States provide more details on this matter so that this dispute could move towards 
a resolution. 
1.13.  The representative of Argentina said that his country, once again, supported Cuba's request. 
Argentina also supported the statements made by previous speakers. As Argentina had stated 
previously, this lack of progress was inconsistent with the principle of prompt and effective 
compliance with the DSB's recommendations and rulings stipulated in the DSU provisions, in particular since the interests of a developing-c ountry Member were affected. Argentina, once 
again, urged the parties to the dispute, in particular the United States, to take the necessary 
measures so as to promptly resolve this dispute.  
1.14.  The representative of Uruguay said that his country supported the statements made by 
previous speakers. Uruguay was concerned that the prolonged situation of non-compliance and the 
lack of new information undermined the credibility of the dispute settlement system. Uruguay hoped that the United States would resolve this situation and that it would provide more information to the DSB, in particular regarding the discussions held in the US Congress. 
1.15.  The representative of the Bolivarian Repub lic of Venezuela said that his country supported 
Cuba on this matter. Venezuela noted that a considerable amount of time had passed since the 
adoption by the DSB of the recommendations and ruli ngs in this dispute, but the United States had WT/DSB/M/341 
 
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  not yet complied within the "reasonable period of time" stipulated in Article 21.3 of the DSU. At 
each regular DSB meeting, the United States submitted the same report, stating that its willingness to comply with the DSB's ruling, without actually doing so. This situation not only affected Cuba, but also created a negative precedent for the credibility of the WTO and its ability 
to resolve disputes. Venezuela, therefore, urged the United States to bring this situation of non-
compliance to an end and to report at the next DSB meeting on the actions that it intended to take to resolve this dispute. 
1.16.  The representative of Chile said that, as it had become customary, his country wished to 
express its systemic concern about the failure to comply with the DSB's recommendations and 
rulings. Chile noted that the multilateral rules were applicable to all Members and all Members had to comply with them, without exception.  
1.17.  The representative of Ecuador said that his country supported Cuba's statement made at 
the present meeting. Ecuador, once again, recalled that Article 21 of the DSU referred to prompt 
compliance with the DSB's recommendations and rulings, in particular since the interests of a 
developing-country Member were affected. Ecuador hoped that the United States would step up its 
efforts in order to comply with the DSB's recommendations and rulings by fully repealing Section 211. 
1.18.  The representative of Viet Nam said that his country thanked the United States for its status 
report and its statement made at the present meeting. Viet Nam, once again, renewed its systemic 
concern about the US non-compliance with the DSB's recommendations and rulings. Viet Nam urged the United States to comply with the DSB's recommendation so as to uphold international 
public law disciplines and to benefit Cuba, a developing-country Member. 
1.19.  The representative of the United States said that his country had heard delegations, and in 
particular Cuba expressing concerns about the US compliance record. The delegate from the 
United States stated that he did not have the repo rt referenced by one Member in front of him, in 
which that Member alleged that 12 of the pending cases of non-compliance involved the United States. The United States said that it had submitted a total of only four status reports for 
the present meeting and wondered what the other disputes to which that Member was referring 
might be. Cuba's statement that the US compliance record was poor, simply was incorrect. If one looked at the facts of the disputes one would see that for itself. One would see that the facts did not support this assertion. There were a few instances – the four status reports – in which the 
United States was continuing to work actively towards compliance. But the instances of non-
compliance were not representative of the whole. The United States had complied in the vast majority of disputes in which it was a party. The United States had also heard statements at the 
present meeting from Cuba and other Members about how the US record of non-compliance 
undermined the WTO and the dispute settlement system. The dispute settlement system was 
working very well, as evidenced by the statements  from Members, including those delivered in the 
context of Bali. Suggesting otherwise was a clear overstatement. It was inaccurate to suggest that 
the US record of non-compliance in a few instances had undermined the entire system.  
1.20.  The last point the United States wished to make was with respect to comments by Cuba and 
at least one other delegation, that the United States had moved references to specific legislation 
from the status report into its comments at the present meeting. There was no material difference 
in the manner in which the United States informed the DSB about this pending legislation. However, the United States would highlight one difference between the information it had provided 
at the last DSB meeting and at the present meeting: the addition of a new bill this month, 
H.R. 1917. Finally, with respect to the notion that the United States was not providing the actual status of pending bills, the United States was highly transparent. One could look online and find 
where in the process each of these bills were, in what sub-committee, how many co-sponsors each 
bill had – some of them had 15 or 16 – the United States had all of this online. The United States 
was happy to provide the link to that information in another forum. The United States said that it was highly transparent and encouraged delegations to look at that information. 
1.21.  The representative of Cuba said that her country considered that it was not appropriate to 
hear over and over again that bills had been put to Congress without indicating any progress with 
regard to concrete decisions on these legislative texts for more than the past 12 years. Members 
respected the DSB for its competence and seriousne ss. Therefore, Cuba found it unacceptable that 
on a monthly basis it continued to hear the United States reassure Members that the bills before WT/DSB/M/341 
 
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  Congress demonstrated the US commitment to the dispute settlement system. Such proposals or 
bills in practice, from what Cuba had seen and in the action of the past 12 years, were cosmetic as nothing had been done over the past 12 years. No  single proposal had even been discussed in the 
bodies to which the bills had been submitted and, therefore, Cuba regretted that it had to ask, 
once again, just how committed the United States was and questioned the US political will to 
comply with the DSB's recommendations and rulings. With regard to the comments made by the United States regarding the Annual Report of the DSB, Cuba stated that the Report was contained 
in document WT/DSB/61. In accordance with that Report, there were 20 pending cases for 
compliance before the DSB at the end of 2013 out of which 12, more than half, related to the United States. Cuba suggested the United States read the Report, which was an official DSB document. In conclusion, Cuba wished to reiterate what it had stated and what had been repeated 
by 13 delegations at the present meeting, namely, that the decisions of a multilateral body were 
meant to be fully complied with, in their totality, and not according to the political convenience of countries. WTO Members were seriously committed to the Organization and were willing to comply 
and respect its rules, recommendations and decisions. 
1.22.  The representative of China noted that the US understanding of the situation was different 
than Cuba's understanding. The United States believed that its non-compliance with the DSB's 
recommendations and rulings it had encountered  was at a low percentage. However, the non-
compliance in this dispute, which was just one case for the United States, meant 100% for Cuba which was a Member involved in the dispute. Cuba  should be treated equally. Thus, China urged 
the United States to comply with the DSB's recommendations and rulings and to meet its 
commitment to the multilateral trading system. 
1.23.  The representative of the United States said that his country would like to make it clear that 
this dispute involved the United States and the EU, and not Cuba. The statement just made, which 
alleged otherwise, was incorrect. 
1.24.  The Chairman said that there had been a g ood airing of some of the issues underlying the 
progress or lack thereof and that he appreciated Members continued engagement on the subject.  
1.25.  The representative of Cuba said that it was true that this dispute was between the 
United States and the EU, but it directly involved Cuba and concerned a Cuban trademark. In its 
initial comments, Cuba had explained how this dispute affected a developing-country Member that was also negatively affected by the US blockade. Cuba, a developing country was affected by 
Section 211 and requested that Cuba's statement be reflected in the minutes of the present 
meeting.  
1.26.  The representative of China said that her country wished to clarify what it had stated. China 
had stated that Cuba was a Member involved in the dispute and not that Cuba was a party to the 
dispute. 
1.27.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. B.  United States – Anti-dumping measures  on certain hot-rolled steel products from 
Japan: Status report by the Un ited States (WT/DS184/15/Add.133) 
1.28.  The Chairman drew attention to document WT/DS184/15/Add.133, which contained the 
status report by the United States on pr ogress in the implementation of the DSB's 
recommendations in the case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
1.29.  The representative of the United States said that his country had provided a status report in 
this dispute on 9 January 2014, in accordance with Article 21.6 of the DSU. The United States had 
addressed the DSB's recommendations and rulings with respect to the calculation of anti-dumping 
margins in the hot-rolled steel anti-dumping duty investigation at issue in this dispute. With 
respect to the recommendations and rulings of th e DSB that had yet to be addressed, the US 
Administration would work with the US Congress with respect to the appropriate statutory measures that would resolve this matter. WT/DSB/M/341 
 
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  1.30.  The representative of Japan thanked the United States for its statement and the status 
report submitted on 9 January 2014. Since the content of the report was the same as the previous 
reports, Japan's position remained unchanged as expressed in the previous meetings. 
1.31.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. C.  United States – Section 110(5) of th e US Copyright Act: Status report by 
the United States (WT/DS160/24/Add.108) 
1.32.  The Chairman drew attention to document WT/DS160/24/Add.108, which contained the 
status report by the United States on pr ogress in the implementation of the DSB's 
recommendations in the case concerning Section 110(5) of the US Copyright Act. 
1.33.  The representative of the United States said that his country had provided a status report in 
this dispute on 9 January 2014, 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. 
1.34.  The representative of the European Union said that the EU thanked the United States for the 
status report and its statement made at the pr esent meeting. The EU referred to its previous 
statements regarding its wish to resolve this case as soon as possible. 
1.35.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
D.  European Communities – Measures affect ing the approval and marketing of biotech 
products: Status report by the Eu ropean Union (WT/DS291/37/Add.71) 
1.36.  The Chairman drew attention to document WT/DS291/37/Add.71, which contained the 
status report by the European Union on pr ogress in the implementation of the DSB's 
recommendations in the case concerning measures affecting the approval and marketing of 
biotech products. 
1.37.  The representative of the European Union said that, in recent DSB meetings, the EU had 
already reported on authorization decisions ta ken up to November 2013. On 6 November 2013, 
the European Commission had adopted two decisions authorizing ten new GM maize and one 
decision authorizing MON810 pollen2, following the absence of an opinion from the Appeal 
Committee. In September 2013, the standing co mmittee had voted on a draft authorization 
decision for drought-tolerant maize3 and had rendered no opinion. The draft decision had, 
therefore, been presented to the Appeal Committee on 21 October 2013, which delivered no 
opinion and was now following internal procedures. In addition, at the beginning of December 2013, the EFSA had published an opinion on a GM soybean
4, both for food and feed 
uses. As had been stated many times before, the EU recalled that the EU approval system was not 
covered by the DSB's recommendations and ruli ngs. The GMO regulatory regime was working 
normally as evidenced by the approval decisions and other actions towards approval decisions just 
mentioned. The details on the relevant products were set out in the EU's written statement. 
1.38.  The Chairman thanked the EU for the update and for including, in particular, information on 
developments since the previous DSB meetings in November 2013 and January 2014. 
1.39.  The representative of the United States said that his country thanked the EU for its status 
report and its statement made at the present meeting, in which it did provide additional 
information. The United States hoped that the EU would continue to make progress on this item. As the United States had recalled most recently at the October 2013 DSB meeting, the EU had yet 
to address the product-specific DSB recommendation and ruling with respect to a variety of 
                                               
2 Maize stack events MON89034 x 1507 x MON88017 x 59122 and GM maize MON89034×1507×NK603 
as well as GM maize MON810 pollen. 
3 MON87460 maize. 
4 305423 soybean and MON87705 soybean (complementary statement). WT/DSB/M/341 
 
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  biotech corn that was known as BT-1507. The app lication for approval of this product had been 
pending all the way back from 2001. In 2006, the DSB had found that the EU had breached its WTO obligations with respect to this product by not undertaking and not completing approval procedures without undue delay.
5 T h e  U n i t e d  S t a t e s  s a i d  t h a t  i t  w o u l d  a l s o  r e c a l l  t h a t  a n  E U  
judicial body had issued a decision finding that EU delays with respect to the BT-1507 application 
breached the EU's own laws as well as the WTO.6 The United States also took note that the EU's 
own scientific authority had issued positive opinions on this application for approval at least six 
times between 2005 and 2012. In light of these facts, the United States remained hopeful that the 
EU would finally take action with respect to the BT-1507 application in accordance with the findings of the EU's scientific authority. Ind eed, the United States understood that the EU 
Commission had prepared a draft EU Council Decision authorizing the cultivation of BT-1507, and 
the EU Council may vote on the matter in the upco ming weeks. The United States would certainly 
welcome an approval of this long-standing application. At the same time, this application exemplified the problems with EU measures affect ing the approval of biotech products. If the EU 
Council did take a decision on BT-1507, this vote would take place five years after the Commission 
had previously submitted a proposal for a Council decision. There were many other pending applications that were facing similar delays. The United States urged the EU, as it had in the past, 
to take steps to address these matters. 
1.40.  The Chairman said that he appreciated the detailed update focused on most recent 
developments and the substantive, and somewhat pointed, comments by the United States.  1.41.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. E.  Thailand – Customs and fiscal measures  on cigarettes from the Philippines: Status 
report by Thailand (WT/DS371/15/Add.20) 
1.42.  The Chairman drew attention to document WT/DS371/15/Add.20, which contained the 
status report by Thailand on progress in the implementation of the DSB's recommendations in the 
case concerning Thailand's customs and fiscal measures on cigarettes from the Philippines. 
1.43.  The representative of Thailand said that in its most recent status report, Thailand had 
indicated that it was continuing to prepare responses to the Philippines' recent request for 
additional information regarding certain aspects of Thailand's implementation and had provided some of these responses to the Philippines. Thailand hoped to provide the remaining responses 
shortly and would discuss the relevant modalities bilaterally with the Philippines. Thailand also 
noted that since the last DSB meeting, there had been further bilateral contacts between Thailand and the Philippines on this matter. Thailand look ed forward to continuing its discussions with the 
Philippines and to resolving this matter in an amicable manner. 
1.44.  The representative of the Philippines said that his country thanked Thailand for its status 
report and the statement made at the present meet ing. In its statement made at the last regular 
DSB meeting in November 2013, the Philippines had highlighted two concerns regarding the WTO-
consistency of Thai measures taken to comply with the DSB's rulings and recommendations in this dispute. The first concern related to reports in th e Thai press of a recent decision by the Thai 
Attorney General to prosecute an importer of Ph ilippine goods, and several of the importer's 
current and former employees, for alleged under-declaration of customs values in the 2003-2007 
time period, which included the period covered by the DSB's recommendations and rulings in this dispute. The second concern highlighted by the Ph ilippines similarly related to customs valuation, 
and specifically, a decision by the Thai Customs Bo ard of Appeals to reject the declared transaction 
values for 210 entries from 2002 that were covered by the DSB's recommendations and rulings. As mentioned at the November DSB meeting, on both of these customs valuation issues, the 
Philippines had put questions to Thailand, as far back as in September 2013. While Thailand had 
provided replies to other issues, concerning its VAT regime and tax refunds, the Philippines awaited replies on its customs valuation-related questions. Thailand's failure to engage and provide information on the customs valuation-related matters was particularly regrettable, and 
                                               
5 "European Communities – Measures Affecting th e Approval and Marketing of Biotech Products" 
(WT/DS291/R), adopted 21 November 2006, at para. 8.18(a)(xi). 
6 Pioneer Hi-Bred International, Inc. v. European  Commission, Case T-164/10, Judgment of the General 
Court (Seventh Chamber) (26 September 2013). WT/DSB/M/341 
 
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  heightened the Philippines concerns, given the impact and scale of the matters at hand. To 
conclude, the Philippines could only re-iterate its call on Thailand to act on its commitment, so often re-affirmed in the DSB meeting, to work with the Philippines to achieve full compliance. As it 
had stated at the last DSB meeting, it was only through a full and transparent airing of the facts 
that the parties could hope to achieve a lasting solution to this dispute. 
1.45.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
F .   U n i t e d  S t a t e s  –  A n t i - d u m p i n g  m e a s u r e s  o n  c e r t a i n  s h r i m p  f r o m  V i e t  N a m :  S t a t u s  
report by the United States (WT/DS404/11/Add.19) 
1.46.  The Chairman drew attention to document WT/DS404/11/Add.19, which contained the 
status report by the United States on progress in the implementation of the DSB's 
recommendations in the case concerning US an ti-dumping measures on certain shrimp from 
Viet Nam. 
1.47.  The representative of the United States said that his country had provided a status report in 
this dispute on 9 January 2014, in accordance with Article 21.6 of the DSU. As the United States 
had noted at past DSB meetings, the US Department of Commerce had published a modification to its procedures in February 2012 in order to implement the DSB's recommendations and rulings 
regarding the use of "zeroing" in anti-dumping reviews. That modification addressed certain 
findings in this dispute. The United States would continue to consult with interested parties as it worked to address the recommendations and rulings of the DSB. 
1.48.  The representative of Viet Nam said that his country thanked the United States for its status 
report and statement made at the present meeting. Viet Nam recalled that the reasonable period 
of time mutually agreed by the parties had expired 16 months ago. However, the United States had not taken any action to recalculate and revoke the anti-dumping duty order for the second and 
third administrative review that was inconsistent with the DSB's decision. Viet Nam wished to 
express its systemic concerns about the US non-compliance in this dispute and with international public law obligations. Viet Nam, once again, requ ested the United States to fully comply with the 
DSB's recommendations and rulings without any further delay so as to maintain the multilateral 
trading discipline and for the benefit of Viet Nam, a developing-country Member. 
1.49.  The representative of Cuba said that her country supported the statement made by 
Viet Nam and, once again, urged the United Stat es to take measures in order to implement the 
DSB's recommendations and rulings in this dispute.  
1.50.  The representative of the Bolivarian Repub lic of Venezuela said that his country supported 
the statement made by Viet Nam at the present meeting. Venezuela shared Viet Nam's concerns 
regarding the need for the United States to take effective measures so as to end this situation of 
non-compliance.  
1.51.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 2  UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: 
IMPLEMENTATION OF THE RECOMME NDATIONS ADOPTE D BY THE DSB 
A.  Statements by the European Union and Japan 
2.1.  The Chairman said that this item was on th e Agenda of the present meeting at the request of 
the European Union and Japan. He then invited the respective representatives to speak. 
2.2.  The representative of the European Union said that, once again, the EU requested that the 
United States to stop transferring anti-dumping and countervailing duties to the US industry. Such 
disbursements were clearly incompatible 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 
and to submit status reports in this dispute. WT/DSB/M/341 
 
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  2.3.  The representative of Japan said that, since the distributions under the CDSOA had 
continued, Japan, once again, urged the United States to stop the illegal distributions so as to 
resolve this long-standing dispute. Japan was of the view that the United States was under obligation to provide the DSB with a status report in this dispute in accordance with Article 21.6 of 
the DSU. 
2.4.  The representative of Brazil said that hi s country thanked the EU and Japan for placing this 
item on the DSB's Agenda. As it had expressed in previous DSB meetings, Brazil was of the view 
that the United States was under obligation to submit status reports in this dispute until such time 
that no more legal disbursements were made pursuant to the Byrd Amendment. Only then would the issue be resolved within the meaning of the DS U and the United States would be released from 
its obligation to provide status reports in this dispute. 
2.5.  The representative of Canada said that his country agreed with the previous speakers. 
2.6.  The representative of India said that his country thanked the EU and Japan for regularly 
keeping this issue on the DSB's Agenda. India believed that, until the United States stopped the 
disbursements of WTO-inconsistent duties to its domestic industry, there could not be full 
compliance with the DSB's rulings and recommendations. India supported the view that, until such time full compliance was achieved, this item should  continue to remain under the surveillance of 
the DSB. 
2.7.  The representative of Thailand said that his country agreed with India. 
2.8.  The representative of the United States said that, as his country had noted at previous DSB 
meetings, the President had signed the Deficit Reduction Act into law in 2006. This included a 
provision repealing the Continued Dumping and Subsidy Offset Act of 2000. Accordingly, the 
United States had taken all actions necessary to implement the DSB's recommendations and rulings in these disputes. The United States further noted that some Members who had spoken at 
the present meeting, including the EU and Japan, had said that the 2006 Deficit Reduction Act did 
not permit the distribution of duties collected on goods entered after 1 October 2007, which was 
more than six years ago. Accordingly, the United States did not understand the purpose for which 
this issue had come up again at the present meeting. With respect to comments regarding further 
status reports in this matter, the United States failed to see what purpose would be served by further submission of status reports. 
2.9.  The Chairman said that he had not had an opportunity recently to review matters with the 
Chairman of the Special Session of the DSB. However, what was heard each month in the DSB 
was, in effect, a disagreement as to what constituted compliance and the obligation to implement. If this was something to be clarified, then this  was part of the ongoing DSU negotiations.    
2.10.  The DSB took note of the statements. 
3  CHINA – CERTAIN MEASURES AFFECTING ELECTRONIC PAYMENT SERVICES 
A.  Statement by the United States 
3.1.  The Chairman said that this item was on th e Agenda of the present meeting at the request of 
the United States. He then invited the representative of the United States to speak. 
3.2.  The representative of the United States said that his country continued to have serious 
concerns that China had not implemented the DSB's recommendations and rulings in this dispute. 
China continued to prevent foreign suppliers of electronic payment services from doing business in 
China by imposing a licensing requirement that did not set out any criteria or procedures under which a foreign supplier could be licensed. As a result, China Union Pay – which was China's own 
domestic champion – was still the only authorized supplier in all of China. This was not consistent 
with the DSB's findings that China had both market access and national treatment commitments concerning Mode 3 for electronic payment services.
7 China appeared to recognize the need to take 
                                               
7 "China – Certain Measures Affecting Electronic Payment Services", WT/DS413/R (adopted 
31 August 2012), paras. 7.575, 7.678. WT/DSB/M/341 
 
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  regulatory action to comply with the recommendations and rulings in this dispute. In particular, 
China had recently stated publicly that it was working on the necessary regulation, which presumably would set out the missing licensing criteria and procedures that were just referred to. The United States noted, however, that the reas onable period of time for compliance had expired 
almost six months ago. Accordingly, the United States called upon China to meet its WTO 
obligations promptly and to permit foreign suppliers of electronic payment services to do business on fair and open terms on a Mode 3 basis.  
3.3.  The representative of China said that  her country regretted that, once again, the 
United States had brought this matter before the DSB. As it had stated at previous DSB meetings, 
China had fully complied with the DSB's recommendations and rulings. China had also further explained that the actions being sought by the United States were beyond the scope of China's 
compliance obligations in this dispute. Notwithstanding these prior explanations by China, the 
United States had continued to characterize the actions that it was requesting of China as actions that were necessary to comply with the DSB's rulings. These demands were based on the wrong 
interpretation, by the United States, of the DSB' s rulings and recommendations, and also reflected 
a clear misunderstanding of the dispute settlemen t process. With respect to the market access 
commitment issues, the Panel's ruling was very limited. The only one that the Panel had found to 
be inconsistent with Article XVI:2(a) of the GATS  was the measure that concerned the provision of 
certain services in Hong Kong and Macao. China had brought that measure into conformity with the DSB's recommendations and rulings. China wished to refer to its statements made at previous DSB meetings, and would not repeat them at the present meeting. China urged the United States 
to reconsider the systemic implications of its position. China remained open to considering the US 
requests as part of a bilateral dialogue. In the 24
th US - China Joint Commission on Commerce and 
Trade in Beijing on 19-20 December 2013, it had been clarified that China was in the process of 
examining how to make the regulation rules on the market access regarding bankcard clearance. 
This kind of rule was beyond the scope of China's implementation obligation in this dispute, and could only be discussed through a bilateral dialogue.    
3.4.  The representative of the United States said that his country thanked China for responding to 
its remarks and for providing some information on the regulatory process going on in China. The 
United States appreciated this information and would continue to dialogue on a bilateral basis. The United States did, however, have to disagree quite strongly with China's statement that it had fully 
complied. The DSB had adopted findings that could not be more clear. The United States said that 
it would like to quote from the Panel Report. If  one looked at paragraph 7.575, it stated that 
"China has made a commitment on market access concerning Mode 3". If one then looked at 
paragraph 7.678, it stated that "China has made a commitment on national treatment concerning 
Mode 3". China currently did not allow foreign EPS suppliers access to the market under Mode 3 due to a licensing restriction that set forth no criteria and no procedure under which to obtain a 
license. As a result of this, China Union Pay, China's domestic champion, the only domestic 
supplier, continued to operate while foreign EPS suppliers could not. The United States could not agree with China that a WTO obligation for market access and national treatment meant that China could set forth a restriction under which no foreign supplier of EPS could do business in 
China, while its own preferred domestic supplier co uld do so. Therefore, the United States urged 
China to come into compliance by fully implementing its WTO commitments. 
3.5.  The representative of China said that her country had no intention to have a substantive 
debate on whether there was compliance or not in this dispute. But, as the United States had 
referred to the Panel Report, China had to repeat its position and to refer to the Panel Report. China's reading of the Panel Report was that the Panel had rejected the US claims under 
Article XVI in respect of all but one of the measur es identified by the United States. The one that 
the Panel had found to be inconsistent with Article XVI:2(a) of the GATS was the measure that concerned the provision of certain services in Hong Kong and Macao, which was obviously different from what had just been alleged by the United  States. China had brought that measure into 
conformity with the DSB's recommendations and ruli ngs. There were no other measures that were 
the subject of the DSB's recommendations and ru lings under Article XVI of the GATS. What the 
United States appeared to be requesting of China went far beyond the measures that had been at 
issue in the DS413 dispute. Based on the Panel's finding concerning the classification of the 
services at issue, the United States appeared to  claim that China's compliance obligation extended 
beyond the single measure that the Panel had found to be inconsistent with China's market access 
commitments. But the Panel's classification finding,  and its identification of corresponding market 
access commitments, as illustrated by the United States in the paragraph they quoted,  was merely WT/DSB/M/341 
 
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  a precursor to its evaluation of whether the measures identified by the United States were 
inconsistent with China's obligations under Article XVI. These findings had not given rise to independent compliance obligations, as the United States appeared to suggest. In all events, the DSB's recommendations and rulings in this dispute had been fully complied with by China. That 
was China's position on this matter. China, once again, asked the United States to consider 
whether this discussion should be continued repeatedly.  
3.6.  The Chairman said that this item was si milar to the previous Agenda item regarding a 
disagreement on implementation. However, in this case, as he understood, should the 
disagreement continue, Article 21.5 of the DSU remained available to the parties. He noted that the parties to this dispute had, in August 2013, signed a sequencing agreement to follow through should they wish to do so. On the other hand, the fact that both parties continued to discuss the 
matter at the DSB suggested that a constructive dialogue and bilateral engagement continued. 
This matter was not a surveillance item and, theref ore, the DSB did not necessarily have to revert 
to it at its next meeting.  
3.7.  The DSB took note of the statements. 
4  UNITED STATES – ANTI-DUMPING AND COUNTERVAILING MEASURES ON LARGE 
RESIDENTIAL WASHERS FROM KOREA 
A.  Request for the establishment of a panel by Korea (WT/DS464/4) 
4.1.  The Chairman recalled that the DSB had considered this matter at its meeting on 
18 December 2013 and had agreed to revert to it. He drew attention to the communication from 
Korea contained in document WT/DS464/4, and in vited the representative of Korea to speak. 
4.2.  The representative of Korea said that, as stated at the special DSB meeting held on 
18 December 2013, Korea had grave concerns about the anti-dumping and countervailing 
measures imposed by the United States on th e large residential washers from Korea. The 
measures effectively prevented Korean manufactu rers from exporting to the United States. 
Furthermore, Korea considered these measures to be inconsistent with the US obligations under 
the relevant provisions of the WTO Agreements, as detailed in its panel request that had first 
appeared at the special DSB meeting in December 2013. Korea would not reiterate those details at 
the present meeting. While Korea was open to any mutually satisfactory solution with the 
United States honouring the spirit of the DSU, Ko rea again respectfully requested that a panel be 
established pursuant to Article 6 of the DSU, wi th standard terms of reference, to examine the 
matters described in its panel request. 
4.3.  The representative of the United States said that his country was disappointed that Korea 
had chosen, for a second time, to request the establishment of a panel with regard to this matter. 
As the United States had explained both to Korea and to the DSB, the measures identified in 
Korea's request were fully consistent with US obligations under the WTO Agreement. Further, 
Korea's request purported to address matters, such as possible future determinations under US 
law, that were not measures and not subject to WTO dispute settlement. The United States was 
prepared to engage in these proceedings, and to explain to the Panel that Korea had no legal basis for its claims. 
4.4.  The DSB took note of the statements and agreed to establish a panel in accordance with the 
provisions of Article 6 of the DSU with standard terms of reference. 4.5.  The representatives of Brazil, Canada, Chin a, the European Union, India, Japan, Norway, 
Thailand and Turkey reserved their third-party rights to participate in the Panel's proceedings. WT/DSB/M/341 
 
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  5  EUROPEAN UNION – MEASURES ON ATLANTO-SCANDIAN HERRING 
A.  Request for the establishment of a panel by Denmark in respect of the Faroe Islands 
(WT/DS469/2) 
5.1.  The Chairman drew attention to the comm unication from Denmark in respect of the Faroe 
Islands contained in document WT/DS469/2, and invited the representative of Denmark in respect 
of the Faroe Islands to speak. 
5.2.  The representative of Denmark in respect of the Faroe Islands said that, as set out in 
document WT/DS469/2, the Kingdom of Denmark in respect of the Faroe Islands requested the 
DSB to establish a panel pursuant to Article 6 of the DSU, with standard te rms of reference. This 
dispute concerned coercive economic measures imposed by the EU against the Faroe Islands, which was a self-governing territory forming an integral part of the Kingdom of Denmark and was 
covered territorially by Danish WTO Membership. The coercive measures at stake included the 
following elements: (a) ban on importation and transhipment of Atlanto-Scandian herring caught under the control of the Faroe Islands; (b) ban on importation and transhipment of Northeast 
Atlantic mackerel caught under the control of the Faroe Islands; this stock was included in the 
measure because of its alleged association with Atlanto-Scandian herring; (c) prohibition on the use of EU ports by vessels, including vessels from other WTO Members, that fished for, or 
transported, Atlanto-Scandian herring or Northeast Atlantic mackerel caught under the control of 
the Faroe Islands. The EU measures rested on a unilateral determination made by the EU that the Faroe Islands had violated the UN Convention on the Law of the Sea, or UNCLOS, in exercise of its sovereign rights in respect of the management of the Atlanto-Scandian herring. As such, these 
measures should be of great systemic concern to all WTO Members. The measures were designed 
to coerce the Faroe Islands into subjugating its sovereign rights to fix catch levels within its maritime national jurisdiction to the will of the EU. For the Faroe Islands, the measures were a 
matter of grave economic importance.  
5.3.  The Faroe Islands was a small economy that was heavily dependent on fisheries, including 
transit and, as appropriate, market access for th e fisheries products subject to the challenged 
measures. The 2012 export value of Atlanto-Scandian herring and Northeast Atlantic mackerel, 
alone, represented about 8.5% of the total Gross Domestic Product of the Faroe Islands and more 
than 15% of all exports to third countries, half of  which had been exported to the EU. Further, it 
should not be forgotten that the economy of the EU was roughly 10,000 times bigger than that of 
the Faroe Islands making these relations the very definition of asymmetry. Given its dependency 
on fisheries, the Faroe Islands took very seriously the responsible management of its marine resources. Indeed, management decisions on the total allowable catch in relation to the herring 
and mackerel stocks at issue were determined for those stocks as a whole, based on 
recommendations of an international scientific body, the International Council for the Exploration of the Sea. Thereafter, in fulfilment of the relevant obligations under the UNCLOS, the relevant 
coastal States sought to allocate the total allowable catch among themselves by agreement. In 
negotiating allocation rights, the Faroe Islands was committed to ensuring that it received a fair share. The disagreement between the Faroe Is lands and the EU concerned exclusively the 
allocation of the total allowable catch for Atlanto-Scandian herring, and did not relate to the 
setting of the total allowable catch for the stock.  Regrettably, the EU had taken to negotiating 
these allocation rights with the Faroe Islands against the threat and subsequent imposition of severe coercive economic measures that stroke at the heart of the Faroese economy.  
5.4.  Most importantly, the measures were clearly inconsistent with basic provisions of the 
GATT 1994 and had no justification under WTO law.  Faced with this situation, the Kingdom of 
Denmark in respect of the Faroe Islands had no choice but to resort to dispute resolution under 
the international rule of law in these circumstances. Metropolitan Denmark was, of course, a 
Member State of the EU. Nevertheless, the Faroe Islands was not covered by Denmark's EU membership which, amongst other things, meant that the Faroe Islands maintained its own fisheries and trade policy, and this also explaine d how the EU could ban imports from a territory 
which was within the realm of the Kingdom of Denmark, the latter of which was a member State of 
the EU. To phrase it otherwise, the Faroe Islands was a third-country in relation to the EU for the purposes of the WTO, as was evidenced, inter alia , by the establishment of a free-trade area 
between the Faroe Islands and the EU, registered pursuant to Article XXIV(8)(b) of the GATT. In 
this dispute, the Kingdom of Denmark exercised its rights as a WTO Member in respect of the Faroe Islands. As noted, the Faroe Islands was covered territorially by Danish WTO Membership. WT/DSB/M/341 
 
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  5.5.  The representative of the European Union said  that the EU took note of Denmark's decision in 
respect to the Faroe Islands to request a panel on the EU's measures, relating to the Faroe 
Islands, to ensure conservation of the Atlanto-Scandian herring stock imposed on 20 August 2013. The measures had been imposed after the Faroe Islands had decided to leave the common 
management of the Atlanto-Scandian herring stock which was discussed every year between the 
five coastal states. The Faroe Islands had decided to triple its traditional allocation key for the total allowable catch for the year 2013. The remaining four coastal states had regretted that decision. 
All coastal states, including the Faroe Islands, had agreed to set up a Working Group which was at 
present examining whether the existing allocation keys for the total allowable catch needed to be revised. Results were expected by the mid-2014. Moreover, throughout this month, there were discussions scheduled between the coastal states on the common management of herring and 
mackerel for 2014. Therefore, at the present stage, it was still possible to find a negotiated and 
amicable solution to the underlying dispute. Against that backdrop, the EU considered the request premature and did not agree to the establishment of  a panel. The EU reaffirmed its commitment to 
the dialogue with the Danish authorities in respect of the Faroe Islands in order to find an amicable 
solution. The EU was convinced that its measures were in conformity with the WTO Agreements and would defend them vigorously if a panel was established. 
5.6.  The DSB took note of the statements and agreed to revert to this matter. 
6  UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND 
SALE OF TUNA AND TUNA PRODUCTS 
A.  Recourse to Article 21.5 of the DSU by  Mexico: Request for the establishment of a 
panel (WT/DS381/20) 
6.1.  The Chairman recalled that the DSB had considered this matter at its meeting on 
25 November 2013 and had agreed to revert to it. He drew attention to the communication from 
Mexico contained in document WT/DS381/20 and in vited the representative of Mexico to speak. 
6.2.  The representative of Mexico said that, on  9 July 2013, the United States had published in 
the Federal Register a measure to comply with the DSB's rulings and recommendations in this 
dispute. That measure had entered into effect on 13 July 2013, the date of expiry of the 
reasonable period of time for implementation agr eed by the parties. As Mexico had already stated 
in the past, this new US measure did not comply with the DSB's decision, as it maintained two separate regulatory regimes: (i) the first consisted of highly effective provisions agreed at the 
international level to protect dolphins in the zone where Mexico fished (Eastern Pacific Ocean), and 
(ii) the second consisted of an unregulate d measure without any enforcement mechanism 
established outside the Eastern Pacific Ocean where fleets such as the US fleet operated, resulting 
in a high level of dolphin mortality and causing harm to the marine ecosystem due to the fishing 
methods used in these fishing zones. Unfortunately, the new measure did not remove discrimination against Mexican tuna, nor did it address the damage caused to the environment and 
dolphins by fishing fleets from other countries in other oceans. Mexico therefore, considered, 
contrary to the view expressed by the United St ates on other occasions, that the new measure 
adopted by the "dolphin safe" labelling regime  was inconsistent with the DSB's rulings and 
recommendations. For those reasons, Mexico reques ted, for the second time, the establishment of 
a panel under Article 21.5 of the DSU with standard terms of reference.  
6.3.  The representative of the United States said that, as his country had discussed at length with 
Mexico, and as it had previously informed the DSB, the United States had published a final rule on 
9 July 2013 that brought the United States into  compliance with the DSB's recommendations and 
rulings.8 More specifically, the final rule enhanced the documentary requirements for dolphin-safe 
labelling by extending the requirement for certif ication that no dolphins had been killed or 
seriously injured in the harvesting of the tuna in question to tuna caught in oceans other than the 
Eastern Tropical Pacific Ocean (ETP). Those changes ensured that consumers were not misled or deceived about whether the tuna in a product labelled "dolphin safe" had been caught in a manner that caused harm to dolphins. The United States was thus disappointed that Mexico had made a 
second request for the establishment of a panel in this matter. The United States was prepared to 
                                               
8 Enhanced Document Requirements to Support Use of  the Dolphin Safe Label on Tuna Products: Final 
Rule, 78 Fed. Reg. 40997 (July 9, 2013) (to be codified at 50 CFR pt. 216). WT/DSB/M/341 
 
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  defend the amended dolphin-safe labelling requirem ents and looked forward to explaining before 
the panel that these regulations were fully consistent with its WTO obligations. 
6.4.  The DSB took note of the statements and agreed, pursuant to Article 21.5 of the DSU, to 
refer to the original Panel, if possible, the matte r raised by Mexico in document WT/DS381/20. The 
Panel would have standard terms of reference.  
6.5.  The representatives of Canada, China, the European Union, Guatemala, Japan, Korea, 
Norway and Thailand reserved their third-party ri ghts to participate in the Panel's proceedings. 
7  PROPOSED NOMINATION FOR THE INDICATIVE LIST OF GOVERNMENTAL AND 
NON-GOVERNMENTAL PANELISTS (WT/DSB/W/518) 
7.1.  The Chairman drew attention to document WT/DSB/W/518, which contained one new name 
proposed by the European Union (Belgium) for inclusion on the indicative list of governmental and 
non-governmental panelists, in accordance with Ar ticle 8.4 of the DSU. He proposed that the DSB 
approve the name contained in document WT/DSB/W/518. 
7.2.  The DSB so agreed. 
8  UNITED STATES – MEASURES AFFECTING THE PRODUCTION AND SALE OF CLOVE 
CIGARETTES 
A.  Statement by the European Union 
8.1.  The representative of the European Union said  that the EU wished to take the opportunity to 
make a statement with regard to the pending compliance/arbitration Panel proceedings in the 
dispute: "United States - Clove Cigarettes" (DS406). The EU recalled that at the DSB meeting on 23 August 2013, when Indonesia had made its unil ateral request under Article 22.2 of the DSU, 
the EU had made a statement. The EU had no ted that there was disagreement between the 
United States and Indonesia with respect to co mpliance and recalled that such disagreement must 
be decided through recourse to Article 21.5 of the DSU, before recourse to arbitration subsequent 
to a request under Article 22.2 of the DSU could be entertained. That was the correct sequence, 
even if Indonesia strongly believed that the United States had failed to comply and even if that belief was reasonably held. The EU had reserved its rights in that regard. Consistent with that, on 
4 September 2013, the EU had filed an application with the compliance/arbitration panel, seeking 
to ensure that it would have an opportunity to ex ercise its third-party rights. Brazil and Mexico had 
made similar requests. The EU had explained in its application its systemic concerns with respect to the sequencing and related issues, as well as the specific interest that the EU had in the 
"United States - Clove Cigarettes" dispute. After a lapse of months, the EU had received the 
Arbitrator's decision, which had been designated as  confidential and could not be circulated to all 
Members. Suffice it to say that it appeared to envisage that no other Member, apart from the 
parties, was to have a role in or information about these compliance/arbitration Panel proceedings. 
This was despite the fact that these proceedings rais ed systemic issues as to the interpretation of 
the DSU and several other important systemic issues of interest to the wider Membership. It 
appeared that these issues would be dealt with behind closed doors. The EU considered this an 
egregious breach of its third-party rights, as pr ovided for under Article 10 of the DSU, and the 
principle of due process. This was a matter of very serious concern and the EU considered that it necessitated further action on its part. The EU intended to raise the issues outlined above in the 
appropriate manner at the earliest opportunity. In that regard, the EU was of the firm view that 
Article 21.5 of the DSU was the proper procedure for settling compliance disputes, and that making an Article 22.2 of the DSU request in such a situation, whilst omitting to initiate and 
pursue compliance proceedings or suspend the arbitration panel proceedings, was inconsistent 
with Articles 23.1 and 23.2(a) of the DSU. The EU wished to draw these issues to the attention of other interested Members whose views would be welcomed at the present meeting or at a later 
date. Thus to come back to the procedural discuss ion at the beginning of the present meeting, the 
EU had recalled its position already taken at the regular DSB meeting in August 2013, it had updated the Membership on events since that me eting and it had confirmed its strong systemic 
concerns on the matter. WT/DSB/M/341 
 
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  8.2.  The representative of Mexico said that this matter was of considerable interest to Mexico, and 
that was why Mexico was one of the three Members who had requested to participate in the 
proceedings as a third party, in particular with regard to the suspension of concessions issues. Mexico pointed out that a considerable number of arbitrations had taken place under Article 22.6 
of the DSU. In new arbitration proceedings, Arbitrators had often cited the findings of previous 
Arbitrators, in particular concerning issues ranging from the burden of proof to an Arbitrator's mandate to calculate the level of nullification or impairment. As a result, the decisions of those 
arbitrators acquired a systemic importance that went beyond the characteristics of a particular 
dispute, and this justified the involvement of Members as third parties in appropriate circumstances. In fact, in Panel and Appellate Body proceedings, Members routinely made useful contributions as third parties before the Arbitrators, thus making it easier for them to make an 
objective assessment of the case.  
8.3.  The Chairman recalled that, at the outset of  the present meeting, it had been agreed that 
Members would listen to the EU which had provided, for information of other Members, a 
statement of intent to have systemic and substantive issues raised "in the appropriate forum". 
Members were reminded about the standing rule which was that discussions on substantive issues under "Other Business", without adequate preparat ion, should be avoided. He encouraged other 
Members taking the floor to focus their remarks on the information provided and on how and 
where Members would wish to have a more substantive discussion.  
8.4.  The representative of China said that, wi thout prejudice to her country's position on the 
matter, China had no intention to have a substantive discussion at the present meeting. In 
general, China shared the concerns expressed by the EU over the issue of sequencing. This was a 
long-standing issue, which had been discussed fully in the DSU negotiations. China believed that a multilateral clarification and improvement on this matter was the best means of resolving this 
issue. Thus, China called on Members to advance the negotiations in the DSB Special Session with 
a view to achieving a substantive outcome in the near future. 
8.5.  The representative of Guatemala said that his country was taking the floor under this Agenda 
item simply to note its systemic concern about the problem raised by the EU. Guatemala 
recognized that third-party participation in the Article 22.2 of the DSU proceedings was not clear under the current rules. This issue would have to  be resolved by Members in the context of the 
DSU negotiations. However, there was no ambiguity regarding third-party participation in 
Article 21.5 of the DSU proceedings and, therefor e, it did not seem straight forward that the 
Arbitrator in the dispute under consideration needed to act with the necessary precaution with regard to the request to participate in the proceedings invoked by some Members. Guatemala 
would, therefore, agree with the EU's position. In Guatemala's understanding, this action did not 
contribute to the stability and predictability of the dispute settlement system. This dispute raised 
serious systemic issues of importance to all Memb ers. Guatemala remained at the disposal of any 
interested Members to discuss issues related to the enhanced participation of third parties in the 
dispute settlement system. 
8.6.  The representative of Brazil said that hi s country thanked the EU for sharing information on 
this important issue regarding the sequencing betw een Article 21.5 and Article 22.2 of the DSU in 
the "Cloves Cigarettes" dispute. Brazil also recognized the underlying question in this debate, 
which concerned interpretation, existence and scope of measures taken or not taken to comply with the recommendations of the DSB. In case this issue was placed on the Agenda of the next 
DSB meeting, Brazil might elaborate further on this matter. 
8.7.  The representative of Canada said that, if  there had been more time, his country might have 
been inclined as well to react in more detail on the issues raised by the EU. As others had stated, 
Canada was also prepared to have a discussion in a substantive manner if there was an occasion 
to do so. In the circumstances though, in order to  avoid an unduly long debate, Canada wished to 
make one brief point and it was mostly just to agree with China and Guatemala. The development 
cited by the EU involved, in their case, the issue of sequencing and others had raised the issue of 
third-party participation in Article 22.6 of the DSU proceedings. These developments may be a 
reminder that Members had become a little  bit complacent in their belief that ad hoc  solutions 
were substitutes for permanent solutions to certain lacunae in the current DSU. Canada wished to 
reiterate the point that had been made by China and Guatemala that both of these issues were 
under discussion in the DSB Special Session. This was perhaps a reminder that Members should WT/DSB/M/341 
 
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  make serious efforts to bring those discussions to a conclusion so that permanent solutions could 
be found so as not to depend on the current ad hoc  solutions.  
8.8.  The representative of Japan said that hi s country took note of the procedural concerns 
expressed by the United States about the ten-day advance notice and issues raised under "Other 
Business". Japan agreed that the ten-day advance notice rule, which was set out in the Rules of 
Procedure for meetings of the DSB must be observed so as to ensure the procedural fairness and equal opportunities for all Members. Since the EU ha d raised the issue of sequencing, as a result of 
exchanging views with the United States prior to  the adoption of the Agenda, Japan wished to 
briefly provide general observations as a supporter of sequencing. Japan recognized that a complaining Member had the legitimate right to have recourse to Article 22.6 of the DSU where relevant conditions under the DSU were satisfied. However, a practice developed to the effect that 
the parties to a dispute concluded an ad hoc  agreement on the procedures under Articles 21 and 
22 of the DSU to address the issue of the so-calle d sequencing. Under that practice, "where there 
is disagreement as to the existence or consistency with a covered agreement of measures taken to 
comply with the recommendations and rulings", the parties committed themselves to have 
recourse to the compliance proceedings under Ar ticle 21.5 of the DSU prior to the arbitration 
under Article 22.6 of the DSU. These procedural arrangements would certainly have implications 
for the time-frame of dispute settlement proceedi ngs, but provided a practical way forward by 
securing a legal certainty at that very critical stage in a dispute. Japan had more comments which it would provide in detail at a later stage. To the extent that "there is disagreement" within the meaning of Article 21.5 of the DSU, Japan found little reason to depart from this well-established 
practice.  
8.9.  The representative of India said that his co untry thanked the EU for bringing this issue before 
the DSB. The points which the EU had raised at the present meeting were very substantive and 
were under discussion in the DSU negotiations. India was a proponent of sequencing but this was 
an issue that was still under debate in the DSU negotiations. The second issue which the EU had raised was about the participation of third parties in an Arbitration proceeding. This was also a 
debatable issue under the DSU negotiations. India was aware that under Rule 25 of the Rules of 
Procedure for DSB meetings, substantive discussions of issues under "Other Business" should be avoided. Therefore, India would reserve its deta iled comments once this issue was placed on the 
Agenda of the next DSB meeting. India also agreed with Canada that it was the right time for 
Members to move from ad hoc  arrangements to clear rules so as to provide more predictability 
and security to the dispute settlement system. 
8.10.  The representative of Indonesia said that her country welcomed the EU's statement made at 
the present meeting concerning the dispute: "United States – Measures Affecting the Production 
and Sale of Clove Cigarettes" (DS406). Indonesia regretted that this ongoing dispute was a topic 
for discussion in the DSB. Indonesia had done everything it could to resolve the DS406 dispute as 
expeditiously as possible. However, Indonesia, a developing-country Member, lacked the resources 
of some Members that could drag a dispute for many years in the hope of wearing down its opponent. In this dispute, Indonesia believed that it had acted within its right as a WTO Member. Furthermore, Indonesia believed that nothing in the DSU precluded a complainant from having 
direct recourse to Article 22 of the DSU. This was especially true in this case where the responding 
Member, the United States, regularly conceded that it had taken no step of any kind to implement 
one or more of the DSB's rulings and recommendat ions. Why should a Member in a case, such as 
this, have to go before a compliance panel, purs uant to Article 21.5 of the DSU, and bear the 
burden of showing that the DSB's rulings and re commendations had not been complied with when 
nothing had been done. If the DSU was subject to multiple interpretations and the EU or others 
saw that as a problem, then Members needed to give priority to the conclusion of the DSU 
negotiations. But in the meantime, Indonesia was tr ying to defend its interests. Concerning the 
participation of third parties, Indonesia would maintain its position that third-party participation did not apply under Article 22 of the DSU. 
8.11.  The representative of the United States said that the United States feared that precisely 
what had been discussed when the EU had requested to add this item to the proposed Agenda had 
occurred and that delegations were having a substantive discussion under "Other Business" in 
violation of Rule 25 of the Rules of Procedure. In  the future, to avoid this, the EU should request 
that this item be put on the DSB's Agenda ten days in advance. The United States noted that a lot of Members had read prepared statements, which they had been able to prepare in advance. There 
were other Members, however, who had not been given adequate notice or time to prepare a WT/DSB/M/341 
 
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  statement. They also may have had very strong views on these important systemic issues, but 
may not have been comfortable stating these views off the cuff. In the interests of fairness and transparency, these Members also should have been given the same opportunity to prepare.  
8.12.  Putting all that aside, the United States said that it felt compelled to respond to some of the 
points raised by Members for both systemic reasons and in the context of this dispute, as they 
were important to the United States. As a primary matter, the United States said that it wanted to address the sequencing issue. This was a situation where the United States had originally received 
a proposal from Indonesia to enter into a sequ encing agreement and then Indonesia had stated 
that it was not interested in sequencing and ba cked out. Entering into a sequencing agreement 
would have been the preferred situation for the United States, especially in a situation where it had been clear that the Members disagreed with whether the United States had brought itself into 
conformity with the DSB's recommendations and ru lings. It was unfortunate that things were 
where they were, but the United States did have to respond to what had been stated by other Members. Even though the United States di d disagree with what Indonesia had done, the 
United States did believe that it was permissible to do so under the DSU, contrary to what some 
other Members had said at the present meeting. The United States also disagreed with the notion that, once a proceeding was brought under Article 22. 6 of the DSU, one could not look at issues of 
compliance. The "EC - Bananas III" Report was instructive on that point. The United States 
encouraged Members to look at paragraph 4.8, in which the Report stated that in order to make a determination, it was important to look at the nature and extent of compliance before considering the level of nullification and impairment. There was no reason why Members could not structure an 
Article 22.6 proceeding this way. On the question of third-party participation, the United States 
was glad that the EU had recognized that the Arbitrator's decision was confidential. The United States thought that it was unfortunate that Members were having a conversation about the 
substance on that. In trying to respect the confidentiality of that ruling, the United States would 
note that it believed that comments from the EU regarding third-party rights were inappropriate. There was no textual basis for this. On the substance of the dispute and as to what Indonesia had 
stated in its statement – that the United States had conceded that it had not taken measures to 
comply – nothing could be further from the truth. The United States encouraged all Members to look at its statement made at the meeting of the DSB in August 2013 where the United States had stated that it had come into compliance. It was quite clear from the record.  
8.13.  The representative of Indonesia said that her country wished to reserve its right to provide 
more elaborated comments on this matter. At the present meeting, Indonesia would not respond 
to any further comments.  
8.14.  The Chairman said that all were rule-abiding Members including with the rules that 
governed their own deliberations. He recalled what  delegations had agreed at the outset of the 
present meeting and although some policy position s had been stated in substantive terms, what 
had been put on the table could be interpreted as  information about positions that would be taken 
in the appropriate forum. Two or three suggestion s had been made that these issues were being 
discussed in the DSB Special Session in the contex t of the DSU negotiations. Delegations had also 
suggested moving from ad hoc  to permanent solutions. He invited delegations to consider whether 
they wished to place this issue or set of issues on the Agenda of the next DSB meeting. It was in 
that spirit that he had taken all the comments made by delegations, including many who had indicated that they would elaborate further in the appropriate forum.  
8.15.  The representative of China said that her country wished to comment on how to discuss 
items under "Other Business". According to the DSB's rules of procedure, representatives may 
suggest amendments to the proposed Agenda, or additions to the Agenda under "Other Business". 
When considering and approving a proposed Agenda, representatives shall provide the 
Chairperson and the Secretariat, as well as the other Members directly concerned, whenever possible, with an advance notice regarding any items that they wished to raise under "Other 
Business". Discussions on substantive issues under "Other Business" shall be avoided. However, 
sometimes it was not clear whether a discussion was substantive or not. Thus, Members should be 
cautious in introducing additional rules regarding the time for advance notice or the rules for discussing matters under "Other Business". 
8.16.  The Chairman thanked China for its further re flections. He said that, first, requesting ten 
days advance notice was the same as putting an item on the Agenda, which Members were free to 
do. An item may be placed on the Agenda for information and a statement regarding this matter WT/DSB/M/341 
 
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  could also be circulated in advance. This would provide the courtesy, as one delegation had 
observed, of giving everyone an opportunity to  comment. Second, in terms of substance, the 
Chairman was entrusted with a certain responsibility. As the Chairman, he was tolerant but could have been stricter. In that regard, there had to be some exercise of judgement. It was up to 
Members to reflect on whether they wanted to bring these issues back to the DSB or, as the EU 
had stated, in another appropriate forum. 
8.17.  The representative of the European Union said that the EU still failed to see what it should 
have done differently in terms of the procedure. The EU had simply made a statement at the 
present meeting. The EU had always considered that substantive issues under Rule 25 of the Rules of Procedure referred to situations where the DSB was called upon to act on a substantive matter. The EU failed to see why a statement could not be made under "Other Business". 
8.18.  The Chairman said that, in light of the discussion, he would undertake some consultations 
after the meeting to determine if delegations were interested to have a discussion or consultations 
or informal session to discuss procedural matters. He noted that, even at the present meeting, 
there were four items on the Agenda at the request of a Member, with a statement circulated and 
an opportunity to see other statements in advance. This was a normal procedure for the DSB, even for information exchange.  
8.19.  The representative of the United States said  that, in response to the EU, if a Member put an 
item on the Agenda, any interested Member would have ten days to get in touch with that 
Member. They would have ten days to learn what the intervention would be about and then to get in touch with capital and draft instructions if it was an issue that they cared about. The problem 
here was that there were many Members at the present meeting who had not had the time or 
opportunity to do so and the United States believed that such an opportunity should be afforded to 
all. 
8.20.  The DSB took note of the statements. 
9  STATEMENT BY THE CHAIRMAN REGARDING THE SELECTION PROCESS FOR A NEW AB 
MEMBER  
9.1.  The Chairman, speaking under "Other Business", said that, as Members were aware, he had 
circulated a fax on 20 January 2014 on behalf of the Selection Committee constituting a report on 
the ongoing process to appoint an Appellate Body  member. In that communication, on behalf of 
the Committee, he had proposed that the DSB decide, either at the present meeting or as soon as 
practicable thereafter, to open the process for further nominations. He had also set out, on behalf 
of the Committee, a proposed time-line for receiving nominations, and for consultations and deliberations by the Selection Committee that was established on 24 May 2013. Since the 
circulation of the fax, several delegations had indica ted that they needed time to reflect further on 
the procedures for moving forward with the se lection process. Under the circumstances, but 
bearing in mind the need to avoid undue delay in the selection process and given that the next 
regular DSB meeting was not scheduled until 26 February 2014, he intended to hold a special DSB 
meeting on 7 February 2014 to consider the matter. He intended to submit to all Members formally and, thus, with the required period of notice, a dr aft decision for consideration at that meeting. In 
that regard, he aimed to circulate a draft text of  such a decision by fa x on 27 January 2014, which 
would enable him to issue an Airgram convening the meeting on 28 January 2014. The draft 
decision would obviously be based on the elements outlined by the Selection Committee reflected in his fax of 20 January 2014 containing the Selection Committee's recommended course of action. 
But, any draft he prepared would have to take account of the views delegations may wish to 
express at the present meeting and any further views delegations may wish to express to the 
Chair directly or through the Secretariat between now and 27 January 2014. That was what he 
intended to do subject to further views that delegations may wish to express at the present 
meeting. Since he had received a few questions on  this matter, he wished to emphasize that the 
view of the Selection Committee in developing this recommendation was that this course of action constituted a continuation of the selection pr ocess that it had embarked upon in May 2013. 
Therefore, the Selection Committee, in this recommendation, did not consider it necessary for 
Members to re-nominate the candidates who were, had been and continued to be under consideration. Nor would it be the Selection Committee's intention to re-interview those four 
candidates. The Selection Committee hoped that this would be acceptable to all, but as always the 
floor was open for comments.  WT/DSB/M/341 
 
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  9.2.  The representative of Australia said that he r country was very disappointed to learn that the 
Selection Committee had been unable to agree on a nominee for the Appellate Body who it 
believed would attract the consensus of the WTO Membership. At the same time, Australia had some serious concerns with the proposal to re-open the process. Australia thanked the Chairman 
for providing more notice regarding a decision for taking the process forward. Australia observed 
that taking a decision on such an important issue would not have been reasonable in the time-frame provided in the Chairman's fax of 20 January 2014 for reasons that had already been 
discussed at the present meeting regarding adequate notice for proper consideration, especially for 
such an important issue. Australia agreed that a special DSB meeting with appropriate notice should be convened, and would agree to the 7 Febr uary date. Alternatively, the matter could be 
placed on the Agenda of the next regular DSB meet ing. With regard to the substance of the issue, 
the credibility of the Appellate Body was fundam ental to the integrity of the WTO and the rules-
based multilateral trading system that it repres ented. In that regard, Australia was deeply 
concerned about any suggestions that nominations would be considered on the basis of factors 
unrelated to the qualifications for Appellate Body membership set out in Article 17.3 of the DSU. 
Specifically, candidates should represent an a ppropriate balance of expertise in the covered 
agreements, independence, and representation of  the WTO Membership. Australia had put forward 
a candidate in good faith, with 30 years of trade law experience, including on subject matters that 
comprised a majority of the Appellate Body's workload. In the past, Australia had joined consensus around candidates based on the contribution that it considered they could make to the work of the Appellate Body; not, for example, as representa tives of their countries, but as persons with 
recognized authority in law and international trade. To Australia, some comments had indicated 
that the phrase "broadly representative of Membership in the WTO" meant that this vacancy was for a specific region to fill. This was not Australia's reading and Australia would not want to see 
that view become entrenched for Appellate Body  membership. While the overwhelming concern of 
the process was to provide highly qualified Memb ers for the Appellate Body, the requirement for 
the Appellate Body to be "broadly representative of Members in the WTO" itself could canvas many 
types of representation, including, geographical spread, various legal systems (whether civil or 
common law), different economies and levels of development, as set out in WT/DSB/1, paragraph 5. This should not mean that existi ng AB members must, as a matter of course, be 
replaced by new AB members from the same geographical region and there was no past practice 
indicating this. In conclusion, before considering its position on the proposal to re-open 
nominations for the Appellate Body vacancy, Australia would be seeking further information regarding the process that had led to this unusual situation. 
9.3.  The representative of Kenya said that his country thanked the Chairman for his statement. All 
Members recognized and appreciated that the WT O, successor to the GATT, was their collective, 
cherished Organization that had served Members well since its inception. The WTO had walked a 
long walk since 1995 and had successfully mana ged to withstand any challenges and landmines 
encountered on its way. Its principles of transp arency, most-favoured-nation treatment, decision-
making process through consensus and organizational structures envisaged in its top three organs, and in particular the DSB, continued to give the organization a unique character that had instilled 
confidence in the Membership. Kenya wished to make some observations and comments on the 
Chairman's report and on the recommendation of the Selection Committee that had been circulated. The Selection Committee, which had been established on 24 May 2013, had taken 
about eight months to make this recommendation to Members. The long waiting period for those 
countries that had candidates had obviously created some anxious moments and yet the whole process had ended up in disarray. It had created an environment that facilitated rumours to make 
their rounds and for the guess work to thrive. This scenario was not good for the health of the 
WTO which all Members trusted and believed in. Kenya did recognize that the Bali Ministerial Conference had come in-between, but the delay had been unnecessarily long. Kenya had also noted that the Committee had recognized the dive rse and embracive experience and expertise as 
well as the relevant skills and shared commitment that the four candidates had showed but yet 
there was no conclusion. This was disappointing and Kenya was reflecting on the draft report and the recommendation made and would revert with fu rther comments. In conclusion, merit as well 
as the creation of balance and diversity were some of the key ingredients to be observed in the 
whole process for the WTO to be truly global, to be a truly global body that served all, strong or weak, big or small.  
9.4.  The representative of Egypt said that his country thanked the Selection Committee for its 
continued efforts in this process. It had been noted that a few months had passed which had 
witnessed extensive deliberations to reach a reco mmendation. Nevertheless, the preparatory work WT/DSB/M/341 
 
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  for the Bali Ministerial had left no room. In addition, selecting only one candidate out of the four 
highly-qualified candidates proved difficult. Egypt was looking forward to completing this process at the present meeting by announcing the name of the selected candidate, based on the DSU 
provisions and past practice of taking decision s by consensus. However, Egypt had not expected 
the current suggestion of receiving further nominations. While it highly appreciated receiving 
additional clarification, Egypt also hoped that it would not set a precedent, confusing or complicating the future work of the Selection Committees established under the WTO rules. 
Article 17.3 of the DSU set clear criteria in relation to the composition of the Appellate Body, 
reflecting the determination of the drafters to ma intain the efficiency, impartiality, stability and 
predictability of the system. Egypt, being both an African country and an Arab country, believed that the diversity of membership in the Appellate Body, particularly the legal systems and 
geographical distribution in a broad sense enri ched the experience of the WTO system. Egypt 
reaffirmed its commitment to the WTO system and ex pressed its trust in the work of the Selection 
Committee. Egypt was confident that the Selection Committee and the WTO Membership would 
continue to work together with the aim of maintaining the objective nature of this process.  
9.5.  The representative of Cameroon said that his country was trying to understand the difficulties 
encountered by the Selection Committee to select one out of the four candidates for the Appellate 
Body. The Chairman had indicated that the four candidates were excellent but the Selection 
Committee would give further opportunity for other Members to propose new candidates in order to try to find a consensus candidate. His delegation would reserve its position on this matter pending its consultations with the capital. Cameroon believed that it was important to preserve a 
regional balance in the Appellate Body and to en sure transparency regarding the selection process 
in trying to find the right individual.  
9.6.  The representative of India said that his country thanked the Chairman for his statement. He 
noted that some of the questions had already been answered, but India sought certain 
clarifications regarding the fax of 20 January 2014. The Chairman had just clarified that the four 
candidates that were already on the table would continue to remain under consideration. The 
Chairman had mentioned that those candidates would not be interviewed again and that only new 
candidates would be interviewed by the Selection Committee. The composition of the Selection Committee had been specified in document WT/DSB/1, where it comprised the Chairs of different Councils. In 2014, the Chairs of those Councils would change. In that regard, India wanted to 
know whether a new Selection Committee would be established with new Chairs or if the 2013 
Selection Committee would continue its work.  
9.7.  The Chairman said that he was taking note of the comments and questions being raised and 
once all delegations wishing to speak had spoken, he would make a few comments and try to 
respond on behalf of the Selection Committee.  
9.8.  The representative of Japan said that his country thanked the Selection Committee for its 
efforts. However, given the current situation that  Mr. Unterhalter's term had already expired and 
that the Appellate Body had one vacancy at present, it was very regrettable that the Selection Committee had concluded that it could not recommend a new Appellate Body member to the DSB. On the other hand, under the situation that none of the candidates would, at present, enjoy the 
support of the Membership, Japan was of the view that it was a realistic approach to extend the 
current process and to ask Members to nominate additional candidates. Japan had heard similar views from some Members who had nominated candidates. If the current process continued, Japan 
wished to add one point which India had also raised. Although the continuation of the current 
Selection Committee would be inconsistent with the procedures under WT/DSB/1 and past practices, such continuation would also be a re alistic approach. Therefore, Japan believed that a 
DSB decision, in line with the fax of 20 January 2014,  should include a sentence to underline the 
extraordinary situation. In that regard, Japan would provide proposed language to the Chairman through the Secretariat. 
9.9.  The representative of the United States sa id that his country shared the views expressed by 
others at the present meeting that it was regrettable that this process had not resulted in a 
selection to date, but supported the Selection Committee in its ongoing difficult task ahead. What had been suggested in the fax to reopen the nomination period had been done before and it 
appeared to the United States that this may be a reasonable way forward. That said, India had 
raised an important question. Japan also had raised an important comment on language and Australia had raised important comments. This showed that more time was needed to consider and WT/DSB/M/341 
 
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  look at the draft decision closely. The United  States understood that the Chair would provide 
delegations that opportunity and the United States thanked him for that. 
9.10.  The representative of Brazil said that, as several Members had given their opinion, Brazil 
would comment briefly. Brazil noted with concern that the Membership had not, thus far, been 
able to reach consensus on a candidate for the Appellate Body. Given that the candidates were 
well qualified, it was truly regrettable that cons ensus had not materialized. The entire Membership 
would benefit in having, as soon as possible, a complete, competent and independent Appellate 
Body. Brazil considered that the importance of the issue and the consequences of a new 
nomination process justified, as the Chairman had outlined, the formal insertion of the item on the 
DSB's Agenda so as to allow Members enough time to reflect upon the matter and consult their capitals. Brazil also considered that all Members may make their objections to specific candidates 
known to the Selection Committee in the course of consultations. In fact, that was the moment 
they should be made rather than at the moment of a possible re-appointment when only exceptional circumstances could justify them. Although it was understood that the DSU required 
consensus to appoint Members to the Appellate Body, it was also expected that Members show 
common engagement towards an acceptable solution as long as the professional requirements foreseen in Article 17.3 of the DSU were observed. 
9.11.  The representative of China said that her country regretted to have heard that none of the 
four candidates would enjoy the support of the Membership. The opening of the process for 
additional nominations was not expected. In future, perhaps some additional rules could be developed with respect to how the Selection Committee reviewed the candidates and made a 
recommendation. China recalled that in the 2013 selection process for the Director-General, there 
were nine candidates and procedures for the select ion were agreed by Members. In China's view, it 
would be helpful to consider how to learn from the DG selection process.  
9.12.  The Chairman said that he wished to offe r one or two observations. First, he wished to 
share with all sincerity how deeply each and every member of the Selection Committee, including 
the Director-General himself, had regretted the delay. The Selection Committee wished to have 
concluded its work in a more timely fashion and the original target had been the end of November 
2013. The DSB had directed the Selection Committee to develop a recommendation by 7 November 2013 so that the DSB could take a decision at its meeting on 20 November 2013, which was ultimately held on 25 November 2013. Taking into account the Ministerial Conference in 
Bali and the holiday season, the Selection Committee had met as quickly as it conceivably could 
and as early following Bali as it could. Second, by way of re-assurance, he observed that at the 
very outset, in September/October 2013 (which was the period of time the DSB had directed the 
Selection Committee to conduct the consultations) the Selection Committee had had a joint 
reading of Article 17 of the DSU and the criteria. Thus, every member of the Selection Committee had been explicitly and fully aware of the elements of merit, and of the notion of 
representativeness that many had cited. Some delegations had cited properly that that was the 
criteria of the membership of the Appellate Body, not a test for any individual member. One looked at the institution because it is the Appellate Body that should be broadly representative. Third, the 
Selection Committee was also fully aware throughout the process from the outset, going back to 
WT/DSB/1, that the recommendation for a new AB member should be made jointly by the Chairs 
of the various Councils and the DG "after appropriate consultations". This was reiterated in the DSB decision of 24 May 2013. In that regard, both the inherent qualities of the candidates and the 
views of the Membership of the WTO were relevant.  
9.13.  Another aspect of the proposed course of action, which was not codified yet because he had 
undertaken to give delegations a draft decision, was why it was recommended that the process 
continue rather than start over? The Selection Committee had concluded that at present, a freeze 
frame snapshot in time, it was unable to identify a candidate that might enjoy consensus. The Selection Committee believed that each of the cand idates may, over the coming days and weeks, 
allay whatever questions or observations may have  been asked of them and thus even the current 
candidates' statures in the process may evolve. It was really for that reason that the Selection 
Committee's recommendation was to maintain continuity. One way to ensure consistency in how interviews were conducted in consultations was to keep the same membership. This was not 
unprecedented. This had been done in 1999 following the untimely death of 
Mr. Christopher Beeby, where the DSB had decided to continue the existing committee notwithstanding the annual rotation that would otherwise occur. This was in the interest of saving 
time. In his personal view, with a new committee there would be an obligation to conduct WT/DSB/M/341 
 
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  interviews of existing candidates and to hold a complete set of consultations. If many new 
candidates were to come forward in addition to the existing four, this may slow down the process further. None of the Selection Committee members, including himself, was saying that they must continue. The Selection Committee was at the hands of the Membership and should it be the 
collective view of the Membership to follow an annual rotation, in effect, the process would have to 
await the appointment of the new Chairpersons of the WTO Bodies which would only be in March 2014. Another month would be lost. These were the factors that Members may also wish to 
consider. The aim was not to respond to the report  of the Selection Committee, which embodied a 
narrative recommendation, but rather to a draft of  a decision that would be taken by the DSB, 
which he would circulate on 27 January 2014. Delegations with views on the content and 
substance of such a recommendation or draft decision should submit their views to him directly or 
through the Secretariat so that a draft could be  circulated for Members' further reflection, 
comments and consultation with capitals, in a timely manner. 
9.14.  The DSB took note of the statements. 
__________