RESTRICTED  
  
WT/DSB/M/418  
 
14 January 2019  
(19-0207) Page: 1/4 
Dispute Settlement Body  
21 September 2018    
 
MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 21  SEPTEMBER  2018 
Chairperson: Ms. Sunanta Kangvalkulkij (Thailand)  
1  UNITED  STATES – CERT AIN METHODOLOGIES AN D THEIR APPLICATION TO 
ANTI -DUMPING PROCEED INGS INVOLVING CHINA  
A.  Recourse to Article  22.2 of the DSU by China (WT/DS471/18)  
1.1.  The Chairperson  drew attention to the communication from China contained in document 
WT/DS471/18 , and invite d the representative of China to speak.  
1.2.  The representative of China  said that,  as indicated in the US status report, the United  States 
had not yet initiated any substantive  implementation process to address  the DSB 's recommendations 
in this dispute, other than "consulting with the interested parties ". China was very disappointed and 
deeply  concerned with the US failure to implement the recommendations and rulings  adopted by the 
DSB. The WTO -inconsistent measures taken by  the United  States ha d seriously infringed China 's 
legitimate economic and trade interests , distorted the relevant international market  as well as 
seriously damaged the rule -based multilateral trading system . This should alert all WTO Members.  
In the absence of an agreement on sequencing or compensation  and pursuant to Article  22.2 of the 
DSU, China was request ing authorization from the DSB to suspend concessions or o ther obligations 
vis-à-vis the United  States at a level equivalent to the nullification or impairment suffered as a result 
of the US failure to comply with the DSB's recommendations and rulings . China  under stood that the 
United  States  had object ed to the level of the proposed suspension and that the matter was being  
referred to arbitration pursuant to  Article  22.6 of the DSU.  China,  once again , urged the 
United  States  to take concrete actions, respect WTO rules, and faithfully implement the DSB's 
recommendations and rulings in this dispute  in order  to fully comply with its  obligations under the 
covered a greements . 
1.3.  The representative of the United  States  said that , on 9 September  2018, China had requested 
that the DSB authorize China to suspend concessions and related obligations with respect to goods 
under the agreements described in Article  22.3(g)(i) of the Understanding on Rules and Procedures 
Governing the Settlemen t of Disputes ( "DSU"). By letter dated 19  September  2018, the 
United  States had objected to the level of suspension of concessions or other obligations proposed 
by China. Under the terms of Article  22.6 of the DSU, the filing of such an objection had automatically 
result ed in the matter being referred to arbitration. The United  States said that Article  22.6 of the 
DSU did not refer to any decision by the DSB, and no decision was therefore required or possible . 
Consequently, because of the US objection under Article  22.6 of the DSU , the matter already ha d 
been referred to arbitration. The United  States said  that n evertheless, although unnecessary, the 
DSB could  take note of t hat fact and confirm that it could  not therefore consider China 's request for 
authorization. The United  States took  note of China 's statement concerning implementation actions 
taken to date by the United  States and w ould convey it to capital. The United  States said that it wa s 
willing to discuss this matter with China on a bilateral b asis. T he United  States said that t o be clear, 
however, it was incorrect to suggest that the United  States ha d taken no action. As the United States  
had reported to the DSB during regular DSB meetings, the United  States continue d to consult with WT/DSB/M/418  
 
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  interested  parties on options to address the recommendations of the DSB. That internal process was 
ongoing.  
1.4.  The representative of Brazil  said that , independently of the facts of this dispute, Brazil wished 
to make two specific  comments . First, the objection to the level of suspension propos ed by a Member 
should be made at a  DSB meeting , both for transparency reasons and because there was no 
participation of third parties in the arbitration proceedings  under Article  22.6 of the DSU. Second , if, 
as the U nited States had stated, this was a routine and automatic  procedure  which rendered a  DSB 
meeting unnecessary, it was interesting to note that the language in Article  22.6 of the DSU ("the 
matter shall be referred to arbitration ") was the same  as the language  in Art icle 17.2 of the DSU 
("vacancies [to the Appellate Body ] shall be filled as they arise "). Brazil believed that t his structural 
similarity  should also allow the selection process es for new Appellate Body members to be initiated 
automatically.  
1.5.  The representative of the United  States  said that Brazil had stated  that an objection under 
Article  22.6 of the DSU should be made at a meeting of the DSB. Th e United  States said that the re 
was no such requirement provided for in the text of the DSU.  While  the United  States  had no desire 
to extend a meeting t hat was unnecessary in light of the US  objection to China 's request two days 
prior to the present DSB meeting , the United  States  took the opportunity to again highlight an 
important  issue that should be  of interest to all Members concerned with the correct interpretation 
of the DSU.  Article  22.6 of the DSU provide d that, "if the Member concerned objects to " the request 
of another Member under Article  22.2 of the DSU for authorization to suspend concessio ns or related 
obligations under the covered agreements, "the matter shall be referred to arbitration. "1 No further 
action by that Member or by the DSB was set out in the text of that provision.  The United  States 
said that m inutes of past meetings of DSB an d past experience show ed that matters had  been 
referred to arbitration in the past without any DSB action or any DSB item having arisen under the 
Agenda. For example, interventions  by Members and the DSB Chair reflect ed the understanding that 
no DSB action  had been requested or taken at a DSB meeting at which a request for authorization 
had appeared on the agenda that ha d already been the subject of an objection. And requests for 
authorization ha d also been removed from the A genda of a DSB meeting following  objections to 
those requests, which also demonstrat ed that no DSB action ha d been taken to refer those matters 
to arbitration.2 
1.6.  The United  States said that t he DSU text demonstrate d why it ha d already been established 
that this was the correct reading of Article  22.6 of the DSU . The United States said that a s noted, 
following a request by a Member under Article  22.2 of the DSU for authorization to suspend 
concessions or related obligations, the text of the second sentence of Article  22.6 stated plainly: "if 
the Member concerned objects to the level of suspension proposed, … the matter shall be referred 
to arbitration ". Thus, the text establishe d that referral of the matter to arbitration result ed as a 
consequence "if the Member concerned objects ", much as, under the second sentence of Article  16.4 
of the DSU , an appeal of a panel report result ed as a consequence "[i]f a party has notified its 
decision to appeal ". The United  States said that i t was significant that Article  22.6 of the DSU 
specifically refer red in the first sentence to a decision by the DSB and furthermore provide d that any 
such decision wa s by negative consensus. The United States  said that t he decision by negative 
consensus was a departure from Article  2.4 of the DSU, which require d that decisions by the DSB 
shall be by positive consensus of Members. The second sentence of Article  22.6 of the DSU , by 
contrast, d id not contain any reference to a decision by the DSB. Nor d id it prescribe any departure 
                                                
1 The full text of this Article provides: "When the situation described in paragraph  2 occurs, the DSB, upon 
request, shall grant authorization to suspend concessions or other obligations within 30  days of the expiry of the 
reasonable period of time unless the DSB decides by consensus to reject the request. However, if the Member 
concerned objects to the level of suspension proposed, or claims that the princ iples and procedures set forth in 
paragraph  3 have not been followed where a complaining party has requested authorization to suspend 
concessions or other obligations pursuant to paragraph  3(b) or (c), the matter shall be referred to arbitration. 
Such arbi tration shall be carried out by the original panel, if members are available, or by an arbitrator appointed 
by the Director -General and shall be completed within 60  days after the date of expiry of the reasonable period 
of time. Concessions or other obliga tions shall not be suspended during the course of the arbitration ". DSU, 
Article  22.6 (footnote omitted).  
2 See, e.g., Minutes of 4  June 2007 DSB Meeting, WT/DSB/M/233 (relating to DS268), paras.  3, 4, 5 
(noting agreement of parties that the matter had alr eady been referred to arbitration by filing of objection); 
Minutes of 21  January  2008 DSB Meeting, WT/DSB/M/245 (relating to DS322), p.  2 (first through fourth 
paragraphs) (noting agreement of parties that the matter had already been referred to arbitratio n by the filing 
of an objection; the request for authorization was withdrawn from the DSB meeting agenda).  WT/DSB/M/418  
 
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  from the DSU req uirement that any DSB d ecision wa s to be taken by a positive consensus. The 
United States  said that t he absence in the second sentence of a reference to  a DSB decision that 
was present in the first sentence should be given meaning. It further demonstrate d that the referral 
of the matter to arbitration d id not require a decision by the DSB. Instead, the referral occur red by 
virtue of the objection of the Member concerned. This reflect ed the fact that the granting of 
authorization a nd the referral to arbitration we re two related bu t distinct acts. The United  States 
said that u nder the secon d sentence of Article  22.6 of the DSU, it wa s not the complainant 's request, 
but the respondent 's objection  to the request, that led to the subsequent legal event or consequence 
(i.e., the referra l to arbitration).  
1.7.  The United  States said that n otwithstanding this fact, a few Members  would insist that 
Article  22.6 of the DSU should be read to require DSB action for the matter to be referred to 
arbitration as though it contained the words "by a decision of the Dispute Settlement Body " or "at a 
meeting of the Dispute Settlement Body ". However, those words d id not appe ar in Article  22.6 of 
the DSU. The United  States said that c onsistent with the text -based approach reflected in customary 
rules of i nterpretation of public international law, and in order to avoid adding to or diminishing the 
rights  and obligations of Members contrary to Articles  3.2 and  19.2 of the DSU , it wa s not a correct 
legal interpretation  to read into a WTO provision words that were not there.3 To the contrary, 
"omissions have meaning ".4 The United  States said that , furthermore , to read Article  22.6 as though 
it contained the words "by a decision of the Dispute Settlement Body " or "at a meeting of the Dispute 
Settlement Body " would mean that any such decision would need to be by positive consensus, since 
Article  22.6 of the DSU did not provide for a departure from the positive consensus requirement 
under Article  2.4 of the DSU . But that outcome would permit any Member to block the decision, 
which would defeat the referral to arbitration contemplated by the DSU and would leave unclear the 
status of the request for authorization. The United States  said that t o overcome this problem, 
perhaps certain Members  would propose that Artic le 22.6 of the DSU should be read as though it 
contained the additional words "unless the DSB decides by consensus not to do so ". However, the 
United  States said that this only compound ed the legal error by reading into Article  22.6 of the DSU 
even more wo rds that were not there.  The United  States said that the fact that the referral occurred  
by virtue of the objection of the Member concerned was not a departure from the approach taken in 
other provisions of the DSU. No DSB decision was required for referra l of a matter to arbitration 
under Article  25 of the DSU, nor was a DSB decision required for referral of a matter to arbitration 
under Article  21.3(c) of the DSU .5 The United  States  said that s imilarly, were a DSB decision required 
to refer  the matter to arbitration, it wa s not clear how the Rules of Procedure for Meetings of the 
Dispute Settlement Body would accommodate that decision. The decision would be based on the 
objection of the Member concerned. Accordingly, under the DSB Rules of P rocedure, the objection 
would need to have been submitted and an agenda item requested by the Member concerned at 
least 11  days in advance of the DSB me eting. It wa s unclear how this would proceed in light of the 
fact that the request for authorization would have already been placed on the A genda for a 
(presumably separate and earlier) DSB meeting. Moreover, this would consume even more time and 
be further contrary to the expedited timeframe for the arbitration agreed under the DSU.  
1.8.  The United  States noted that in its statement, Brazil had also referred to the text of Article  17.2 
of the DSU. If Brazil intend ed to suggest that vacancies on the Appellate Body were somehow to be 
filled automatically, the United  States  would disagree. Article  2.4 of the DSU req uired that decisions 
by the DSB shall be taken by positive consensus of Members.  
                                                
3 See, e.g., Appellate Body Report, "United  States – Definitive Safeguard Measur es on Imports o f Circular 
Welded Carbon Quality Line Pipe f rom Korea" , WT/DS202/AB/R, para. 250; Appellate Body Report,  "India – 
Patent Protection for Pharmaceutical and Agricultural Chemical  Products ", WT/DS50/AB/R;  Appellate Body 
Report,  "India – Quantitative Restrictions on Imports of Agricultural, Textile and Industrial  Products ", 
WT/DS90/AB/R, para.  94; Appellate Body Report,  "European  Communities – Measures Concerning Meat and 
Meat Products (Hormones) ", WT/DS26/AB/R,  WT/DS48/AB/R. See also, Appellate Body Report,  "European 
Communities – Anti-Dumping Duties on Imports o f Cotton -Type Bed Linen from India" , WT/DS141/AB/R;  
Appellate Body Report,  "European  Communities – Customs Classification of Certain Computer Equipment ", 
WT/DS62/AB/R, WT/DS67/AB/R,  WT/DS68/AB/R, para.  83; and Appellate Body Report,  "European Communities 
– Measures Affecting Importation of Certain Poultry Products ", WT/DS69/AB/R, para.  146. 
4 See, e.g., "United  States – Definitive Anti -Dumping and Countervailing Duties on Certain Products from 
China (WT/DS379/AB/R), para.  567. 
5 Note 12 to Article  21.3(c) reads in part : "[i]f the parties  cannot agree on an arbitrator within 10  days 
after referring the matter to arbitration , …". WT/DSB/M/418  
 
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  1.9.  The representative of Brazil  thank ed the United  States  for its statement. With regard to the 
issue of transparency raised by Brazil,  she wished to reiterate that since third parties could not 
participate in the Arbitration proceedings under Article  22.6 of the DSU, it was important for the 
DSB meeting to take place . Holding such a meeting would enable interested Members  to express 
any doubts or clarify issues relat ed to the  information provided by the parties to the arbitration 
proceedings under Article  22.6 of the DSU. With regard to the issue of the Appellate Body  
appointments,  Brazil  wished to refer to  its previous statement  made at  the present DSB meeting.  
1.10.   The r epresentative of the United  States  said that the United  States  disagree d with Brazil 's 
statement that a DSB meeting must be held so that Members were informed of  a DSU Article  22.6 
proceeding, and to allow them to express any doubts or clarify issues relating to such a proceeding. 
The United States  said that i n light of the role of the DSB in granting any request for authorization 
to suspend concessions or other obligations, Members should be, and were, fully informed about 
arbitration proceedings unde r DSU Article  22.6 when the matter wa s referred to arbitration by virtue 
of the objection of the Member concerned. The United States  said that i n this regard, the fact was 
that, in particular : (i) the request for authorization to suspend concessions was circulated to 
Members ; (ii) the communication of the Member concerned objecting to that request was also 
circulated to Members ; and (iii)  the notification of the constitution of the Arbitrator was also 
circulated to Members. Accordingly, there was no basis t o assert that Members would not be 
informed about DSU Article  22.6 proceedings absent a DSB meeting. The United  States said that 
similarly, Members always ha d an opportunity to express their views at a meeting of the DSB with 
respect to a particular arbitr ation if they so wish ed. 
1.11.   The DSB took note  of the statements and that the matter raised by the United  States  in 
document WT/DS471/19 ha s been referred to arbitration, as required by Article  22.6 of the DSU.  
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