RESTRICTED  
  
WT/DSB/M/337  
 
13 January 2014  
(14-0130)  Page: 1/30  
Dispute Settlement Body 
25 September 2013    
 
 MINUTES OF MEETING 
HELD IN THE CENTRE WILLIAM RAPPARD 
ON 25 SEPTEMBER 2013 
Chairman: Mr. Jonathan Fried (Canada) 
Table of Contents 
1   SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY 
THE DSB ....................................................................................................................... .... 2 
A.  United States – Section 211 Omnibus Appropriations Act of 1998: Status report by 
the United States .............................................................................................................. 2  
B.  United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan: Status report by  the United States ............................................................................ 6  
C.  United States – Section 110(5) of the US Copyright Act: Status report by 
the United States .............................................................................................................. 6  
D.  European Communities – Measures affect ing the approval and marketing of biotech 
products: Status report by  the European  Union ..................................................................... 6  
E.  Thailand – Customs and fiscal measures on cigarettes from the Philippines: Status 
report by Thailand ............................................................................................................  7 
F.  United States – Anti-dumping measures on certain shrimp from Viet Nam: Status 
report by the Un ited States ................................................................................................ 8  
2   UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 
2000: IMPLEMENTATION OF THE RECOMME NDATIONS ADOPTED BY THE DSB ................ 9  
A  Statements by the Euro pean Union and Japan ................................................................... 9  
3   COLOMBIA – MEASURES RELATING  TO THE IMPORTATION OF TEXTILES, 
APPAREL AND FOOTWEAR .............................................................................................. 10  
A  Request for the establishm ent of a panel by Panama ......................................................... 10 
4   AUSTRALIA – CERTAIN MEASURES CONCERNING TRADEMARKS, 
GEOGRAPHICAL INDICATIONS AND OTHER PLAIN PACKAGING REQUIREMENTS APPLICABLE TO TOBACCO PR ODUCTS AND PACKAGING ................................................ 11
 
A  Request for the establishment of a panel by Honduras ....................................................... 11 
5   UNITED STATES – CERTAIN COUNTRY OF ORIGIN LABELLING (COOL) 
REQUIREMEN TS ............................................................................................................. 26  
A  Recourse to Article 21.5 of the DSU by Canada: Request for the establishment 
of a pa nel .................................................................................................................... ... 26 
B  Recourse to Article 21.5 of the DSU by Mexico: Request for the establishment 
of a pa nel .................................................................................................................... ... 26 
6   CHINA – ANTI-DUMPING AND COUNTERVAILING DUTY MEASURES ON 
BROILER PRODUCTS FROM THE UNITED STATES ........................................................... 27  
A  Report of  the Panel ...................................................................................................... 27 WT/DSB/M/337 
 
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7   PROPOSED NOMINATIONS FOR THE INDICATIVE LIST OF GOVERNMENTAL 
AND NON-GOVERNMENTA L PANELISTS .......................................................................... 29  
8   CHINA – CERTAIN MEASURES AFFECT ING ELECTRONIC PAYMENT SERVICES ........... 29  
A.  Statement by th e United States .................................................................................... 29 
9   STATEMENT BY THE CHAIRMAN RE GARDING SOME MATTERS RELATED TO 
THE APPELLATE BODY .................................................................................................... 30  
 
 
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.130) 
 B.  United States – Anti-dumping measures on certain hot-rolled steel products from Japan: Status 
report by the United States (WT/DS184/15/Add.130) 
 C.  United States – Section 110(5) of the US Copyright Act: Status report by the United States (WT/DS160/24/Add.105) 
 
D.  European Communities – Measures affecting the approval and marketing of biotech products: 
Status report by the European Union (WT/DS291/37/Add.68) 
 
E.  Thailand – Customs and fiscal measures on cigarettes from the Philippines: Status report by Thailand (WT/DS371/15/Add.17) 
 
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  r e p o r t  b y  the United States (WT/DS404/11/Add.16)  
 
1.1.  The Chairman 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. He recalled that Article 21.6 
of the DSU required that: "Unless the DSB decides otherwise, the issue of implementation of the 
recommendations or rulings shall be placed on the Agenda of the DSB meeting after six months following the date of establishment of the reasonab le period of time and shall remain on the DSB's 
Agenda until the issue is resolved". Once again, he urged delegations to provide informative, up-
to-date and new information about compliance efforts and to focus on recent developments. He invited delegations to focus their comments on suggestions and ideas for progress towards mutually agreed solutions. With these introductory  remarks, the Chairman proposed to turn to the 
first status report on the Agenda of the present meeting. 
A.  United States – Section 211 Omnibus Appr opriations Act of 1998: Status report by 
the United States (WT/DS176/11/Add.130) 
1.2.  The Chairman drew attention to docu ment WT/DS176/11/Add.130, 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 12 September 2013, in accordance with Article 21.6 of the DSU. As noted in the US 
status report, at least five bills had been introduced in the current Congress in relation to the recommendations and rulings of the DSB. These included H.R. 214, H.R. 778, H.R. 872, H.R. 873 
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 very soon take steps toward s implementing the DSB's ruling and resolve this 
matter. WT/DSB/M/337 
 
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 1.5.  The representative of Cuba said that, in the midst of the negotiating process and with the 
goal of achieving tangible results at the MC9 in Bali, Members faced enormous challenges in order 
to meet their WTO commitments. The situation was highly critical and required a great deal of collective effort and flexibility. Members' common objective should be to strike a fair balance 
in their negotiations and in any future endeavours, which would reaffirm the intrinsic value 
and effectiveness of the most important organization concerned with world trade. Members could not underestimate the role of the dispute settlement system as a pillar of compliance with the 
Agreements and as an instrument in support of the tenuous credibility of the multilateral trading 
system. However, the Agenda of the present meeting demonstrated that one Member who 
was behind many of the negotiating requests for Bali and the main proponents of the Trade Facilitation Agreement remained infl exible on many issues and continued to neglect 
its obligation to meet specific WTO commitments. As demonstrated by the Agenda of the present 
meeting, at least nine Members, most of them developing countries, were still waiting for the United States to comply with the recommendat ions and rulings adopted by the DSB. This was 
regardless of the fact that, 12 years ago, the DSB had ruled that Section 211 was inconsistent with 
WTO rules. However, the United States continued to violate the legitimate rights of Cuban trademark holders and allowed the Bacardi company to engage in the fraudulent and illegal sale of 
products that were not produced in Cuba using the Havana Club trademark. The US failure to 
comply in this dispute prompted Members to reflect on the balance between WTO rules and any new commitments that Members were being asked to undertake in the run-up to MC9 in Bali. Cuba could not accept that certain Members, due to their economic hegemony, ignored with impunity 
their legal responsibilities and the WTO rules that  Members were trying to improve. Cuba would 
continue to denounce the impact of non-compliance by the United States not only on Cuba but also on the system of rules, which other Members respected.  
1.6.  The Chairman reminded delegations, once again, that they should try to focus on new 
suggestions and constructive ideas to move forward in resolving this long-standing dispute. He 
then read out the long list of speakers and said that delegations may wish to adjust their lunch 
arrangements accordingly.   
1.7.  The representative of China said that her country thanked the United States for its status 
report and the statement made at the presen t meeting. China believed that the prolonged 
situation of non-compliance in this dispute was highly incompatible with the DSU provisions, in 
particular since the interests of a developing-country Member were affected. China joined other 
Members in urging the United States to implement the DSB's rulings and recommendations without any further delay. 
1.8.  The representative of Brazil said that hi s country thanked the United States for its status 
report on the surveillance of implementation in th is dispute. Brazil noted that, once again, the 
United States reported 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. 
1.9.  The representative of the Plurinational State of Bolivia said that, once again, his country 
noted that for the past 12 years, the US status report did not report on any breakthrough. Bolivia 
reiterated its concern about the US failure to co mply with the DSB's recommendations and rulings. 
This situation of non-compliance undermined the credibility of the multilateral trading system and harmed the interests of a developing-country Member. In Bolivia's view, the only solution to this 
dispute was for the United States to comply with the DSB's recommendations and rulings and to 
lift the restrictions imposed under Section 211. Bolivia supported the statement made by Cuba at the present meeting.  
1.10.  The representative of Ecuador said that his country supported the statement made by Cuba 
at the present meeting. Ecuador, once again, recalled that Article 21 of the DSU specifically 
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 
repealing Section 211. 
1.11.  The representative of India said that his country thanked the United States for its status 
report and the statement made at the present meeting. India noted that there was no change in 
the situation. India, once again, was compelled to stress that the principle of prompt compliance WT/DSB/M/337 
 
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 was missing in this dispute. India renewed its systemic concern about the continued non-
compliance in this dispute, as this undermined the credibility and Members' confidence in the system. India urged the United States to report full compliance in this dispute without any further delay. 
1.12.  The representative of El Salvador said that her country thanked the United States for its 
status report. El Salvador joined the previous speakers in expressing its concern about the US lack 
of compliance in this dispute. This situation of non-compliance undermined the multilateral trading 
system and affected the interests of a developi ng-country Member. El Salvador called on the 
parties to this dispute to promptly comply with the DSB's recommendations and rulings.  
1.13.  The representative of the Bolivarian Republic of Venezuela said that his country, once again, 
supported Cuba, a developing-country Member, that challenged the inconsistency of Section 211. 
The DSB had adopted the recommendations regarding Section 211, but the United States had yet 
to comply. Venezuela was concerned about the US President's renewal of the Helms-Burton Act, which had a direct impact on this dispute. The current situation of non-compliance not only 
affected Cuba, but also set a negative precedent for the credibility of the WTO and its ability to 
resolve disputes. Venezuela, therefore, urged the United States to end this non-compliance and to 
report on the measures it intended to take to solve this dispute. 
1.14.  The representative of Nicaragua said that his country thanked the United States for its 
status report concerning Section 211. Nicaragua noted that, for more than 11 years, the 
United States had failed to offer any concrete steps towards implementing the DSB's recommendations on this matter. In Nicaragua's view, the protracted situation of non-compliance 
in this dispute was regrettable, in particular since it affected the interests of Cuba, a small 
economy, and undermined the credibility of the WTO. Nicaragua supported Cuba's concerns and joined other delegations in urging the United States to bring its measure into conformity with 
the DSB's recommendations. 
1.15.  The representative of South Africa said that her country thanked the United States for its 
status report. South Africa, once again, joined the previous speakers in expressing its concern that 
since the August DSB meeting no concrete progress  had been made in the implementation of the 
DSB's recommendations and rulings in this dispute. South Africa referred to its previous statements in this regard. She highlighted her co untry's concern about the systemic effects of non-
compliance with the DSB's recommendations and rulings, including undermining the integrity of a 
critical enforcement pillar of the WTO. In addition, obvious economic consequences for particular 
economic interests of a developing-country Memb er were being perpetuated as a result of non-
compliance. South Africa, therefore, urged the United States to bring its legislation into compliance 
with the DSB rulings and recommendations.  
1.16.  The representative of Argentina said that his country thanked the United States for its 
status report. Argentina regretted that, once again, there was lack of progress, which was not 
consistent with the principle of prompt compliance stipulated in the DSU provisions, in particular 
since the interests of a developing-country Me mber were affected. Argentina supported the 
statement made by Cuba and the previous speakers . It called on the parties to the dispute, in 
particular the United States, to take the necessary measures so as to resolve this matter.  
1.17.  The representative of Mexico said that, on ce again, his country urged the parties to this 
dispute to take the necessary measures in orde r to comply with the DSB's recommendations and 
rulings to the benefit of all Members, in accordance with Article 21.1 of the DSU. He said that the 
Chairman had called for constructive comments so as to enable the parties to promptly resolve 
this dispute and that the United States had mentioned in its report five relevant legislative texts had been introduced in the US Congress. The fact that the United States had submitted five 
legislative texts indicated the US willingness to comply. However, Mexico believed that merely 
submitting the legislative texts might not be sufficient. Mexico asked the United States to provide information regarding meetings held by Congressional committees in charge of such legislative texts.  
1.18.  The representative of Chile said that his country thanked the United States for its status 
report. However, Chile noted that the report did not contain any information on substantive 
progress on this matter. Chile, therefore, reiterated its continued concern about the failure to WT/DSB/M/337 
 
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 comply with the DSB's recommendations and rulings. A solution to this matter would depend on 
the goodwill of both parties. 
1.19.  The representative of the Dominican Republic said that, once again, her country called upon 
the United States to comply with the DSB's recommendations since the long period of time that 
had passed without compliance undermined the DSB's credibility.  
1.20.  The representative of Uruguay said that his country thanked the United States for its status 
report. Uruguay, once again, noted that the situation in this dispute had not changed and, 
therefore, urged the United States to comply with its obligations in this matter. 
1.21.  The representative of Viet Nam said that his country thanked the United States for its status 
report. Viet Nam noted that more than ten years had passed, but the US Administration had not 
taken any action to implement the DSB's recommend ations and rulings. Viet Nam, once again, 
urged the United States to respect the DSB's recommendations and rulings so as to uphold 
international public law disciplines and for the benefit of Cuba, a developing-country Member. 
1.22.  The representative of Cuba said that fi rst her delegation wished to thank the previous 
speakers. Second, she said that the lack of compliance with the DSB's recommendations and 
rulings had a significant impact on Cuba, a developing-country whose interests were affected by the financial and economic embargo imposed by th e United States. Therefore, the Chair's remark 
about adjusting lunch plans was unfortunate, since this was an important matter and one had to 
be careful as to what one said in the context of the discussion on Section 211. Cuba reiterated its view that the only solution to this matter was for the United States to comply with the DSB's recommendations and rulings and immediately repeal Section 211. 
1.23.  The Chairman said that, before turning to th e delegation of the United States, he wished to 
make a clarification so that there was no misunder standing. He said that, from the outset when he 
had taken on the Chairmanship of the DSB, he had sought to emphasize the underlying purpose 
set out in the DSU provisions for having this discussion. The purpose of having an item on 
surveillance inscribed on the Agenda of each re gular DSB meeting was with a view to promoting a 
resolution of the dispute. Thus, he had consistently urged all delegations to orient their remarks 
towards that goal, including the reporting Member  to emphasize and put a focus on developments 
since the previous meeting, and any other Member in commenting on that, to offer concrete suggestions. He had simply been noting, as best as he could, that a repetition was in fact nothing other than repetition. Some delegations had chosen to refer back to their previous remarks while 
others, and he did not mean to single out any delegations, for example, Mexico, had offered a new 
suggestion in terms of consultation with Congressional Committees. He certainly did not make light, either of this particular item or of the ge neral item on the Agenda on surveillance, but he did 
believe strongly, as a matter of systemic interest, that Members could make better use of this 
surveillance time by focusing on the future. It was in that context that his remarks regarding how to use time had been made. He apologized if an yone had interpreted that as not showing full 
respect for each and every Member and their contribution to the DSB. 
1.24.  The representative of the United States said that Mexico had mentioned a desire for more 
information on the status of the legislation that would address this issue. The United States, 
therefore, wanted to provide information about the five bills that had been introduced to address 
this problem. They were similar to bills that had been introduced in prior Congresses and while 
several of the bills would repeal Section 211 outright, a number of other bills would modify Section 211. First H.R. 214 had been introduced on 4 January 2013 by representative Serrano of 
New York. That bill would repeal Section 211. The second piece of legislation, H.R. 778, had been 
introduced on 15 February 2013 by representative Issa of California. That bill would modify Section 211. H.R. 872 had been introduced on 27 February 2013 by representative Rangel of 
New York. That bill would repeal Section 211. H.R. 873 had been introduced on 27 February 2013 
by representative Rangel of New York. This bill would also repeal Section 211. Finally, S. 647 had 
been introduced on 21 March 2013 by Senator Bill Nelson of Florida. That bill would modify Section 211. 
1.25.  The Chairman said that, whether later in the meeting or in between meetings, it may be of 
interest to delegations to know where in the legisl ative process, beyond introduction, each of those 
bills stood.  WT/DSB/M/337 
 
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 1.26.  The representative of Cuba said that he r country thanked the Chairman for his remarks. 
With regard to what the United States had just mentioned, Cuba thanked the United States for the 
bills that had been presented, but wished to re iterate the statement made by Cuba in previous 
DSB meetings. Those bills had been submitted to the committees of the US Congress, but they 
had not been submitted to the Senate. To date, there was no specific action envisaged to make 
progress in the legislative process. Cuba urge d the United States to comply with the DSB's 
recommendations and rulings. 
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.130) 
1.28.  The Chairman drew attention to document WT/DS184/15/Add.130, 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 12 September 2013, 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  the DSB that had yet to be addressed, the US 
Administration would work with the US Congress with respect to appropriate statutory measures 
that would resolve this matter. 
1.30.  The representative of Japan said that his country thanked the United States for its 
statement and its status report submitted on 12 September 2013. Once again, Japan requested 
the United States to fully implement the DSB's recommendations in this long-standing dispute 
without further delay. 
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 the US Copyright Act: Status report by the 
United States (WT/DS160/24/Add.105) 
1.32.  The Chairman drew attention to document WT/DS160/24/Add.105, 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 12 September 2013, in accordance with Article 21.6 of the DSU. The US 
Administration would continue to confer with the EU, and to work closely with the US Congress, in order to reach a mutually satisfactory resolution of this matter. 
1.34.  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.68) 
1.36.  The Chairman drew attention to document WT/DS291/37/Add.68, 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. WT/DSB/M/337 
 
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 1.37.  The representative of the European Union said that the EU, once again, hoped that it would 
continue on the constructive path of dialogue with the United States. In recent DSB meetings, the 
EU had already reported on authorization decision s that had been taken in 2012. Most recently, at 
the end of June 2013, the Commission had auth orized Ms8, Rf3 and Ms8xRf3 oilseed rapes, 
following the absence of an opinion from the Appeal Committee. In July 2013, the Appeal 
Committee had voted on three authorization decisions1, rendering no opinion. The Commission 
would move to adopt them in the near future. Furthermore, in September, the Standing 
Committee had voted on draft authorization decision for drought-tolerant maize2 and had rendered 
no opinion. The draft decision would now be subm itted to the Appeal Committee. As stated many 
times before, the EU recalled that the EU a pproval system was not covered by the DSB's 
recommendations and rulings. The GMO regulatory regime was working normally as evidenced by 
the approval decisions just mentioned.  
1.38.  The representative of the United States said that his country thanked the EU for its status 
report and its statement made at the present meetin g. As the United States had explained at past 
meetings of the DSB, the United States had substantial concerns regarding EU measures affecting 
the approval of biotech products. As of that date  in September, the EU had not granted a single 
approval of a new biotech product in calendar year 2013. Yet dozens of products were waiting in 
the EU system. The only new approval thus far ha d been to extend the scope of approval for a 
previously approved product. The United States was closely following EU delays. One product of 
particular interest was a biotech corn variety that had received a favourable safety opinion from the European Food Safety Authority (EFSA) in November 2012. The United States had hoped that, 
in accordance with the EU's own laws, this product could have been approved within three months 
of the positive safety assessment. There were many other examples. For instance, the United States noted that two pending products had been considered by both the EU regulatory 
committee and the EU appeals committee, but had yet to see final action. As the United States had 
noted in the past, the EU measures were causing serious disruption of trade in corn and other agricultural products. The United States urged the EU to take steps to address these matters.  
1.39.  The Chairman noted that there continued to be a difference of view regarding the timetable. 
1.40.  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.17) 
1.41.  The Chairman drew attention to document WT/DS371/15/Add.17, 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. 
1.42.  The representative of Thailand said that his country wished to refer Members to its most 
recent status report on this matter. In addition, since that status report, Thailand had received a 
request from the Philippines for additional information on some of the technical aspects of its 
implementation, as well as other matters of concern to the Philippines. The relevant agencies of the Thai government were in the process of pr eparing responses to the Philippines' questions. 
Thailand looked forward to continuing its discussions with the Philippines on these matters and to 
resolving this dispute in an amicable manner.  
1.43.  The representative of the Philippines said that his country thanked Thailand for its status 
report and the statement made at the present meeting. In its status report, Thailand had referred 
to the information it had submitted to the Philippines in late August. At the DSB's August meeting, 
the Philippines had noted its regret for the time it had taken for this information to be provided. The Philippines had also noted that the information, which was being withheld from the importer 
concerned, was relevant in assessing whether one of Thailand's reported implementation measures 
was in conformity with the Customs Valuation Ag reement. Since the previous DSB meeting, the 
Philippines had had some time to assess the information received. The Philippines had found that 
                                               
1 Maize stack events MON89034 x 1507 x MON88017 x 59122 and GM maize MON89034×1507×NK603 
as well as GM maize MON810 pollen. 
2 MON87460 maize. WT/DSB/M/337 
 
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 the information had not only left many questions unanswered, but had also raised new questions, 
which gave rise to serious misgivings on the WTO-consistency of Thailand's declared measure taken to comply. In order to explore those issues, the Philippines had invited Thailand to discuss those questions in a bilateral technical meeting. The meeting had taken place in Geneva the 
previous week. In its questions to Thailand at  that meeting, the Philippines had covered all 
outstanding issues, including the criminal investigations that the Philippines had referred to, inter 
alia, in its statement made at the previous DS B meeting. The Philippines was grateful for 
Thailand's efforts to directly answer as many questions as possible at the meeting and its 
commitment to follow up on those questions it wa s unable to answer on the spot. The Philippines 
would await those further answers from Thailand before considering the next steps. 
1.44.  The representative of Thailand said that his country understood the Philippines concern 
referring to the ongoing investigations under Thai law to the extent that those investigations 
involved Thailand's obligations under WTO law. Thailand would strive to ensure that it acted in a WTO-consistent manner. 
1.45.  The Chairman said that he thanked both delegations for their candour and for sharing with 
the rest of the Membership the sincere efforts on both sides, including the previous week's 
technical consultations to reach a mutually acceptable agreement on full implementation of the 
decisions rendered. 
1.46.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. F.  United States – Anti-dumping measures on certain shrimp from Viet Nam: Status 
report by the United States (WT/DS404/11/Add.16) 
1.47.  The Chairman drew attention to document WT/DS404/11/Add.16, 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. 
1.48.  The representative of the United States said that his country had provided a status report in 
this dispute on 12 September 2013, in accordance with Article 21.6 of the DSU. In February 2012, 
the US Department of Commerce had published a modification to its procedures 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. In June 2012, the USTR had 
requested, pursuant to Section 129 of the Uruguay Round Agreements Act, that the Department of 
Commerce take action necessary to implement the DSB's recommendations and rulings 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. 
1.49.  The representative of Viet Nam said that his country thanked the United States for its status 
report and the statement made at the present meeting. Viet Nam noted that the reasonable period 
of time, agreed by the parties to the dispute, had expired 14 months ago. However, the US 
Administration had not taken any action to implement the DSB's recommendations and rulings. Viet Nam wished to express its systemic concerns about the US non-compliance with its WTO obligations in this case. Once again, Viet Nam urged the United States to implement, without any 
further delay, the DSB's recommendations and ruli ngs and, in particular, to revoke the anti-
dumping duty that was inconsistent with the WTO laws so as to maintain the multilateral trading discipline and for the benefit of Viet Nam's exporters. 
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 concern 
and called on the United States to put an end to this situation of non-compliance.  
1.51.  The representative of Cuba noted that, as reflected in the US status report, the legislative 
progress had been slow and had not produced a real conclusion with regard to the DSB's 
recommendations and rulings that had been adopted in September 2011. This negatively affected Viet Nam's economy and the trade of an essential product for its development. Cuba urged the WT/DSB/M/337 
 
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 United States to take effective measures in order to implement the DSB's rulings and to remove 
the measures that violated Viet Nam's rights.   
1.52.  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 stop transferring anti-dumping an d countervailing duties to the US industry. Every 
disbursement that still took place was clearly an act of non-compliance with the DSB's 
recommendations and rulings. The EU renewed its call on the United States to abide by its clear obligation under Article 21.6 of the DSU to submit status reports in this dispute. 
2.3.  The representative of Japan said that, since the distributions under the CDSOA had been 
continuing, Japan, once again, urged the United States to stop the illegal distributions so as to 
resolve this 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 Chairman said that, as under Agenda item 1, delegations may refer to their previous 
statements if there were no additional insights to offer. 
2.5.  The representative of Brazil said that hi s country thanked the EU and Japan for keeping this 
item on the DSB's Agenda. As it had expressed at  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 disbursements were made pursuant  to the Byrd Amendment. Only then would the 
issue be resolved within the meaning of the DSU an d the United States would be released from its 
obligation to provide status reports in this dispute. 
2.6.  The representative of India said that, lik e Canada, his country thanked the EU and Japan for 
regularly bringing this issue before the DSB. India shared their concerns. The CDSOA remained 
operational and the WTO-inconsistent disburse ments continued unabated to the US domestic 
industry. India agreed with previous speakers that this matter should continue to remain under the DSB's surveillance until such time full compliance was achieved. 
2.7.  The representative of Canada said that his country wished to refer to its statements made 
under this Agenda item at previous DSB meetings. Canada's position had not changed. 
2.8.  The representative of Thailand said that, like Canada, his country's position on this matter 
had not changed. 2.9.  The representative of the United States said that, as his country had already explained at 
previous DSB meetings, the President had signed the Deficit Reduction Act into law on 
8 February 2006. That Act included a provision repealing the Continued Dumping and Subsidy 
Offset Act of 2000. Thus, the United States had taken all actions necessary to implement the DSB's recommendations and rulings in these disputes. The United States recalled furthermore that Members had acknowledged during previous DSB meetings that the 2006 Deficit Reduction Act did 
not permit the distribution of duties collected on goods entered after 1 October 2007. With respect 
to comments regarding further status reports in this matter, as it had already explained at previous DSB meetings, the United States failed to see what purpose would be served by further 
submission of status reports repeating the progress the United States had made in the 
implementation of the DSB's recommendations and rulings. 
2.10.  The DSB took note of the statements. WT/DSB/M/337 
 
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 3  COLOMBIA – MEASURES RELATING TO THE IMPORTATION OF TEXTILES, APPAREL 
AND FOOTWEAR 
A  Request for the establishment of a panel by Panama (WT/DS461/3) 3.1.  The Chairman recalled that the DSB had considered this matter at its meeting on 
30 August 2013 and had agreed to revert to it. He drew attention to the communication from 
Panama contained in document WT/DS461/3, and invited the representative of Panama to speak. 
3.2.  The representative of Panama said that, for the second time, Panama was requesting the 
DSB to establish a panel to examine Colombia's tariff on imports of textiles, apparel and footwear, 
whose applied levels exceeded the levels bound in Colombia's Schedule of Concessions. Panama wanted to make it clear that it did not question Colombia's freedom to modify its ad valorem  tariff 
or apply any other method, including the introduc tion of a compound tariff. However, Panama 
challenged the fact that Decree No. 074 of 23 January 2013 did not provide for a "cap" mechanism 
to prevent the applied tariff from exceeding the bound level for the products in question, as well as the fact that Colombia had imposed tariffs, which did indeed exceed the bound levels. The 
measure at issue had a significant impact on Panama's exports, in particular in the present context 
when purchase orders were being placed for the Christmas and end of year marketing period. For P a n a m a  i t  w a s ,  t h e r e f o r e ,  u r g e n t  t o  f i n d  a  p r o m p t ,  i f  n o t  i m m e d i a t e ,  s o l u t i o n  t o  t h i s  d i s p u t e .  
Panama believed that this dispute could be reso lved in a relatively simple manner if Colombia 
introduced, without delay into its regulations, a guarantee or "cap" mechanism similar to the one suggested by the Appellate Body in its Report in the case: "Argentina - Textiles and Apparel" (DS56), which ensured that the applied tariff would not, under any circumstances, exceed bound 
levels. Panama hoped that the panel to be established at the present meeting would issue a 
prompt decision with respect to the consistency of the Colombian measure with WTO law. 
3.3.  The representative of Colombia said that his country was disappointed that Panama had 
resubmitted its panel request at the present meeting. Since the beginning of this dispute, 
Colombia had explained why it considered its measures to be consistent with its WTO obligations, as well as their importance for Colombia's trade policy, for compliance with its customs regulations 
and especially for security reasons, which were of vital interest to Colombia. At the same time, as 
it had previously mentioned, Colombia had stated at every occasion it was more than willing to address Panama's concerns. In fact, the very re cent signing of the Free Trade Agreement between 
the two countries had provided an opportunity fo r new exchanges of views on the matter. From 
those discussions, which had been conducted at the highest level, Colombia had understood that 
both parties shared a willingness to work together in order to reach a mutually agreed solution, in accordance with Article 3 of the DSU. Colombia regretted that, despite those recent talks and 
the fact that both parties had clearly expressed, at the highest level, their willingness to move 
towards a mutually agreed solution, Panama had chosen to resubmit its panel request to the DSB, thus preferring to trigger a mechanism that wo uld burden the system, the WTO and each of the 
parties concerned, instead of opting for the agreed approach involving direct dialogue between the 
two countries. Colombia urged Panama to consider, once again, taking the latter course of action. 
3.4.  The Chairman said that proceeding to the next stage did not preclude concurrent, friendly, 
amicable, neighbourhood conversations with a view to an agreed solution. Nonetheless, given that 
the DSB had discussed this matter at its previous meeting, and having taken note of the 
statements, it was necessary for the DSB to agree to establish a panel, in accordance with the provisions of Article 6 of the DSU, with standard terms of reference. 
3.5.  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. 
3.6.  The representatives of China, El Salvad or, Ecuador, the European Union, Guatemala, 
Honduras and the United States reserved their third-party rights to participate in the Panel's 
proceedings. WT/DSB/M/337 
 
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 4  AUSTRALIA – CERTAIN MEASURES CONCERNING TRADEMARKS, GEOGRAPHICAL 
INDICATIONS AND OTHER PLAIN PACKAGING REQUIREMENTS APPLICABLE TO TOBACCO PRODUCTS AND PACKAGING 
A  Request for the establishment of a panel by Honduras (WT/DS435/16) 
4.1.  The Chairman recalled that the DSB had considered this matter at its meeting on 
19 November 2012 and had agreed to revert to it. He drew attention to the communication from 
Honduras contained in document WT/DS435/16, and invited the representative of Honduras to 
speak. 
4.2.  The representative of Honduras said that his country was requesting the DSB to establish a 
panel under Article 6.1 of the DSU to examine Australia's measures concerning trademarks, 
geographical indications and other plain packaging requirements for the sale of tobacco products. 
This was the second time that Honduras was submitting its panel request on this matter. Honduras 
considered that Australia's plain packaging requirements constituted a measure that was inconsistent with the TRIPS Agreement and the TBT Agreement. Australia's plain packaging 
requirements seriously undermined the essential fu nction of a trademark, which was to ensure a 
distinction between different tobacco products that were sold legally in Australia. The measures also undermined geographical indications applicable to tobacco products. This was particularly true 
in the case of cigars, which have a special re putation for high-quality. The plain packaging 
requirements also constituted a measure that was more trade restrictive than necessary to achieve its objective, and consequently violated Australia's obligations under the TBT Agreement. Contrary to what Australia suggests, the measure at issue does not contribute, in any way, to the objective 
of protecting human health. Honduras had previous ly stated that it supported the adoption of 
tobacco control measures that sought to protect human health. However, it had also stated that when adopting such measures, WTO Members could not disregard their obligations under the WTO 
Agreements. This meant that measures that limited in tellectual property rights, or restricted trade, 
must be supported by sufficient evidence and appr opriate conclusions. Unfortunately, in adopting 
its plain packaging legislation, Australia had failed to comply with this basic principle. In view of 
these considerations, Honduras had decided, once again, to request the DSB to establish a panel 
under Article 6.1 of the DSU to examine the plain packaging measures vis-à-vis  Australia's 
obligations under WTO rules. 
4.3.  The representative of Australia said that  Australia's world first tobacco plain packaging 
measure had been in force since 1 December 2012. Tobacco plain packaging was a sound, well-
considered measure designed to achieve a legitimate objective, the protection of public health. The WTO covered agreements recognized the fundamen tal right of Members to implement measures 
necessary for the achievement of this objectiv e and provided the necessary flexibilities for 
Members to do so. While Australia expected that the public health benefits of its tobacco plain packaging measure would be demonstrated over the longer term, recently released research 
indicated that the plain packaging measure already appeared to be having a positive effect. The 
study of more than 500 smokers had revealed that  a majority of those smoking from plain packs: 
(i) perceived their cigarettes to be lower in quality; (ii) tended to perceive their cigarettes as less satisfying than a year ago; (iii) were more likely to have thought about quitting at least once a day 
in the past week, and (iv) were more likely to rate quitting as a higher priority in their lives.
3 As it 
had stated at previous DSB meetings, Australia was a world leader in effective tobacco control strategies and tobacco plain packaging was the next logical step in Australia's long history of 
tobacco control. Australia was pleased to note that other WTO Members had announced that they 
intended to adopt similar measures. All WTO Members had to confront the global tobacco epidemic. The World Health Organization's Report on the Global Tobacco Epidemic 2011 stated 
that: "Tobacco use continues to be the leading global cause of preventable death. It kills 
approximately six million people and causes hundreds of billions of dollars of economic damage worldwide each year". It added that: "If current trends continue, by 2030 tobacco will kill more than eight million people worldwide each year, with  80% of these living in low- and middle-income 
countries".
4 In Latin America and the central Caribbean region, tobacco related deaths were 
expected to triple from 3.3% of total deaths in  1990 to 9.4% in 2020, a clear indicator of the 
                                               
3 Wakefield MA, Hayes L, Durkin S, et al. "Introduct ion Effects of the Australian Plain Packaging Policy 
on Adult Smokers: a Cross-Sectional Study. BMJ Open 2013;3:e003175. 
4 WHO Report on the Global Tobacco Epidemic, 2011 (p . 8); see also WHO Tobacco Fact Sheet, updated 
July 2013 ( http://www.who.int/mediacentre/factsheets/fs339/en/index.html , visited 24 September 2013). WT/DSB/M/337 
 
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 increasing proportion of tobacco-related diseases which would be borne by countries such as 
Honduras. Both Australia and Honduras were parties to the WHO Framework Convention on Tobacco Control. Tobacco plain packaging was recommended in the guidelines for implementation of Articles 11 and 13 of the Convention. Both  Australia and Honduras had endorsed those 
Guidelines. Indeed, Honduras was a member of the Working Group that had developed those 
Guidelines in relation to Article 11.   
4.4.  Australia recognized that Honduras also conf ronted the significant public health challenge of 
tobacco use and acknowledged the important steps taken by Honduras in relation to tobacco 
advertising, sponsorship and promotion. Australia's tobacco plain packaging legislation did not undermine the protection afforded to trademarks and geographical indications under the TRIPS Agreement. Nor was the measure more trade restrictive than necessary to fulfil its legitimate 
public health objective. The tobacco plain packaging measure was origin neutral and even-handed 
in its application. It was clearly non-discriminatory. It applied to all tobacco products, regardless of type or origin, and represented best practice in tobacco control.  
4.5.  Australia noted that Honduras had first requ ested the establishment of a panel in relation to 
Australia's tobacco plain packaging measure at the DSB meeting held on 19 November 2012. Australia had rejected the establishment of a panel at that meeting, as it was entitled to do.
5 
Approximately ten months had elapsed since Honduras' request was made. Australia was not 
aware of any other instance where such a lengthy period had elapsed between a first panel request made under Article 6.1 of the DSU and a party again placing the issue on the DSB's Agenda. Article 6.1 of the DSU provided that: "If the complaining party so requests, a panel shall 
be established at the latest at the DSB meeting following that at which the request first appears as 
an item on the DSB's Agenda, unless at that meeting the DSB decides by consensus not to 
establish a panel". The language of Article 6.1 of the DSU was clear: where a complaining party 
made a request for the establishment of a panel, a panel shall be established at the latest at the 
DSB meeting following that at which a request fi rst appeared as an item on the DSB's Agenda, 
unless the DSB decided by consensus at that meet ing not to establish a panel. That requirement 
was reflected in long established DSB practice. Pu rsuant to that practice, a second request for a 
panel establishment was made at the next regular session of the DSB following that session at which the request first appeared on the DSB's Agenda, or at a meeting of the DSB specially convened for the purpose of making a second request.
6 As it had said, Australia had not identified 
any instance where a ten month delay had occurred between first and second panel requests made 
in accordance with Article 6.1 of the DSU.  
4.6.  The language in Article 6.1 of the DSU had its origins in paragraph F(a) of the Decision of 
12 April 1989 on Improvements to the GATT Dispute Settlement Rules and Procedures.7 The 
improvements in the 1989 Decision had arisen out of Members' concerns to address delays that 
had sometimes arisen in establishing a panel8, principally due to the actions of some respondents 
in repeatedly blocking requests for the establishment of panels. That was not the case at the 
present meeting. Indeed, it was the complainant that had taken just over ten months since the matter had first appeared on the DSB's Agenda to again request establishment of a panel, a delay 
that was completely at odds with established DSB practice. Neither the language of Article 6.1 of 
the DSU nor established DSB practice supported Honduras' assertion that the present request for 
the establishment of a panel, made ten months after its first request, should be considered to be a 
                                               
5 WT/DSB/M/325, pp. 11-14. 
6 Australia had identified only three instances where this practice has not been followed, and even then 
the time between first and second panel requests was no greater than two months: see Argentina - Ceramic 
Tiles (DS189, first request 26 September 2000, second request 17 November 2000); European Communities - Selected Customs Matters  (DS315, first request 25 January 2005, second request 21 March 2005); Brazil - 
Retreaded Tyres  (DS332, first request 28 November 2005, second request 20 January 2006). 
7 "If the complaining party so requests, a decision to establish a panel or working party shall be taken at 
the latest at the Council meeting following that at which the request first appeared as an item on the Council's regular agenda, unless at that meeting the Council decides otherwise." (BISD 36S/61) 
8 See e.g., Switzerland (MTN.GNG/NG13/W/8, pa ra. 2.1), Japan (MTN.GNG/NG13/W/9, para. 2) 
Australia (MTN.GNG/NG/13/W/11, pa ra. 7 and 3.2), Korea (MTN.GNG/NG13/W/19, para. 2(a)), EEC 
(MTN.GNG/NG13/W/22, para. 4). ("What is important is to fix deadlines for the beginning and the end of the 
process, in order to expedite exam ination of disputes and avoid delays  in the follow-up stage…the Council 
should take a decision on the setting up of a panel, normally at the first meeting, or at the latest, at the second 
meeting following the one where the request was made."); Austria (MTN.GNG/NG13/W/25, p. 3); Mexico 
(MTN.GNG/NG13/W/26/Rev.1, p. 2), Joint proposal of a number of contracting parties (MTN.GNG/NG13/W/30, 
p. 3). WT/DSB/M/337 
 
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 request on the basis of which the DSB could va lidly establish a panel without the responding 
party's consent. In Australia's view, the principle of automaticity for establishing panels under Article 6.1 was not unlimited and should not allow for first panel requests to remain open indefinitely in the face of lengthy inaction on the part of a complaining party. Such an approach 
would create uncertainty both for responding parties and for the system as a whole. It would 
require a responding party to maintain the resources necessary to defend a dispute indefinitely. That could be a challenge for any WTO Member. For developing-country Members with limited 
resources, this challenge would be even more diff icult to meet. It was, therefore, important that 
the implications of the present day's action by Ho nduras for the system as a whole, rather than 
just for this particular dispute, were properly considered. On this basis, Australia was of the view that the request made at the present meeting must be considered a first request, and that 
Honduras was not entitled to expect the automati c establishment of a panel by the DSB. For those 
reasons, Australia could not agree to the reques t made. In so doing, Australia noted that if 
Honduras wished to proceed to making a second request, it may do so in 15 days' time, pursuant 
to the terms of footnote 5 to Article 6.1 of the DSU, and Australia would not be able to oppose that 
second request. Australia noted that the request by Honduras related to the same matter that had 
been raised by Ukraine at the 28 September 2012 meeting of the DSB (DS434). Accordingly, 
pursuant to Article 9.1 of the DSU, Australia requ ested that those complaints be heard by a single 
panel. 
4.7.  The representative of Honduras said that his country considered that its panel request was on 
the Agenda of the DSB meeting for the second time and did not agree that its right to have a panel 
established by the DSB at this meeting, under Article 6.1 of the DSU, should be subject to 
additional requirements before a panel could be es tablished. Honduras found surprising the notion 
that, as suggested by Australia, a second request had to be made at a second consecutive DSB 
meeting following the meeting at which the first request was considered. This requirement was not 
specifically mentioned in the DSU provisions. Article 6.1 of the DSU simply stated that: "if the complaining party so requests, a panel must be established at the latest at the DSB meeting 
following that at which the request first appears as an item on the DSB's agenda, unless at that 
meeting the DSB decides by consensus not to estab lish a panel". The text of Article 6.1 of the DSU 
was sufficiently broad and it did not matter whether or not the second request was made the following month or several months after the first request. The language in Article 6.1 of the DSU 
specified that the panel must be established "if the complaining party so requests"; this suggested 
that the complaining party had control about the point in time as to when the second request was filed. The words: "at the latest", suggested that even though a panel may be established upon the 
first request, it would have to be established by negative consensus at the second meeting. The 
word "following" referred to the meeting of the DSB held after the meeting at which the first 
request was made. "Following" did not mean consecutive or immediately afterward. The reference 
to: "the meeting of the DSB" referred to the particular meeting at which the second request was 
on the Agenda. It must not be read as referring to the meeting of the DSB that was held immediately after the first meeting. Nothing in the DSU provisions prohibited the establishment of a panel in a situation where the second panel request was considered by the DSB at a non-
consecutive meeting.  
4.8.  Australia's interpretation was not supported by the text of the DSU. Under Article 6.1 of the 
DSU, in order to establish a panel at the first meeting, there was a need for positive consensus. 
However, at the second meeting, a panel would have to be established unless there was a 
consensus not to do so. The negative consensus rule as it applied to the DSB’s decision to establish a panel was one of the most important achievements of the WTO. Once the request was 
on the Agenda of the DSB, neither Article 6.1 of the DSU nor any other DSU provision 
contemplated action on the part of the DSB other than establishing a panel. It would be very restrictive to interpret Article 6.1 of the DSU such that a Member had to file its panel requests at 
consecutive meetings in order for the DSB to esta blish a panel. The only requirement was that a 
Member had to wait 60 days following the consultation period before requesting a panel. The DSU 
did not impose any other time-frame regarding wh en a Member can request the establishment of a 
panel. Therefore, if a Member could wait five ye ars to request the establishment of a panel, it 
would be odd to require that Member to make it s second request in five years and one month.  
4.9.  The DSB did not have jurisdiction to decide  whether or not a panel could be established once 
the second request is on the DSB Agenda. The same approach had been adopted in other 
circumstances where the DSU provided the DSB with authority to take certain actions. On different 
occasions, Members had expressed their view that the DSB did not have discretion to decide WT/DSB/M/337 
 
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 whether or not the suspension of concessions must  be granted under Article 22.2 of the DSU, or 
whether a matter should be referred to arbitration under Article 22.6 of the DSU. This was also the case in the dispute "US - Large Civil Aircraft" regarding the procedures for collecting information pursuant to paragraph 2 of Annex V of the SCM Agreement. It was understood under those 
circumstances that the DSB had to take certain action when a request to initiate an Annex V 
procedure was made. The DSB practice showed that there had been previous cases in which the DSB had established a panel even though the second DSB meeting in which the request for a 
panel was considered had not been held immediately after the meeting at which the first request 
had been made. This suggested that Members and the DSB had never interpreted Article 6.1 of the DSU as requiring that the complaining party must  make its second request for the establishment 
of a panel at the meeting that directly followed the meeting at which the first request was made. It 
may be that, in some of these cases, the complaining party had reserved its right to submit its 
panel request later, or that the time lapse between the first and second request had not been long. However, the important point was that a panel was established upon the second request even 
though that request had not been made at the consecutive DSB meeting. Furthermore, the need 
for the second request to be made at the consecutive meeting would mean that, when a special meeting of the DSB was convened  after the meeting where the first request was made, then the 
second panel request would have to be made at that special meeting. Article 6.1 of the DSU did 
not make any distinction between a regular or a special DSB meeting. Australia's interpretation would mean that a second panel request that was not made at a second consecutive DSB meeting would not be valid. However, practice had shown that Members usually waited for regular DSB 
meetings to submit their second requests. An  example was the "Canada - Renewable Energy" 
dispute (DS412), where Japan's first request for panel establishment had been considered at the DSB meeting on 17 June 2011. A special DSB was held on 15 July 2011, but Japan did not make 
its second request at that meeting. Japan, in fact, made its second request at the regular DSB 
meeting held on 20 July 2011. Honduras hoped that this clarification would make clear Honduras’ position, namely, that given the fact that Honduras' panel request was on the DSB's Agenda for 
the second time, the DSB must establish a panel at the present meeting. 
4.10.  The representative of the European Union said that the EU noted the disagreement between 
Australia and Honduras regarding the correct legal in terpretation of Article 6.1 of the DSU. In the 
EU's view, Honduras was correct in considering that this was a valid second request for the 
establishment of a panel that should be considered by the DSB pursuant to negative consensus. 
This was confirmed by a reading of the DSU based on  its ordinary meaning, considered in context, 
and in light of the object and purpose, and co nfirmed by DSB practice where panels had been 
established without discussion even if DSB meetings had taken place between the first and second 
panel request, such as special meetings. In the EU's view, this was an important institutional point and any disagreement regarding the interpretation of  Article 6.1 of the DSU should be the subject 
of a panel determination or ultimately the Appellate Body's determination. Therefore, the EU urged 
the DSB to establish a panel at the present meeting. Doing otherwise would allow a defendant to delay the settlement of disputes. The establishment of a panel at the present meeting would not prejudice Australia's legal position, as Australia could and, no doubt would  raise, this issue before 
the panel as a jurisdictional matter. The EU pr oposed that the minutes of the present meeting 
should record that a panel was established, with standard terms of reference,  without prejudice to 
the resolution by the Panel of the procedural di spute between Australia and Honduras concerning 
the meaning of Article 6.1 of the DSU. The EU noted that it had prepared further arguments on 
Article 6.1 of the DSU, but it did not think that the present meeting was the right forum to present 
those arguments. The EU intended to be a third party in this dispute and believed that the 
exchange of those arguments should be made befo re the Panel. This was of great importance to 
the EU as an institutional and systemic issue. 
4.11.  The representative of Ukraine said that his country regretted the fact that Australia was not 
able to accept the establishment of a panel at th e present meeting and seemed to raise procedural 
hurdles to such establishment by referring to Arti cle 6.1 of the DSU. Ukraine considered that the 
prompt settlement of the dispute, which was essent ial to the effective functioning of the WTO, was 
not served by Members raising procedural objectio ns before the DSB on a doubtful textual basis. 
Ukraine did not consider that the DSU required the Member to submit its second request at the 
DSB meeting that immediately followed the DSB meeting at which the request first appeared on the Agenda. Ukraine could not foresee what would happen if, in an effort to reach an amicable 
resolution, a Member allowed one or more DSB meetings to pass without submitting its second 
request. Therefore, Ukraine did not see any textual, political or systemic reason for the WT/DSB/M/337 
 
- 15 - 
 
 requirement Australia sought to read into Articl e 6 of the DSU. Ukraine did expect the DSB to 
establish a panel at the present meeting as requested by Honduras. 
4.12.  The representative of the Dominican Republic said that, first, his country supported 
Honduras' request for the establishment of a panel at the present meeting. Second, the Dominican 
Republic wished to indicate that the spirit of the WTO and of the DSB was to provide time for 
parties in dispute to arrive at an understanding in resolving that dispute before going into litigation, as had been indicated by Ukraine. Th e Dominican Republic welcomed the opportunity to 
address briefly this important issue, which had repercussions for the Dominican Republic in its 
dispute against Australia (DS441) and was of system ic importance to the Membership as a whole. 
The Dominican Republic supported Honduras' position  that, pursuant to Article 6.1 of the DSU, the 
DSB was required to establish a panel in the DS435 dispute, at this, the second meeting at which 
a request for panel establishment had been made. In its view, neither the text, object and purpose 
of Article 6.1 of the DSU nor Members' practice  to date under the DSU supported Australia's 
position that a panel may only be established at the very next DSB meeting following immediately 
the meeting at which a request for panel establishment had first appeared as an item on the DSB's 
Agenda. As regards the text of Article 6.1, the Dominican Republic noted first that the opening clause of Article 6.1 read: "[i]f the complainant so requests". That clause qualified the remainder 
of Article 6.1 of the DSU, which stated that a complaining party may place a "request" for the 
establishment of a panel on the Agenda of a DSB meeting. The two DSB meetings referred to in 
Article 6.1 were not just any DSB meetings or even temporally consecutive DSB meetings, as Australia suggested. Rather, they were DSB meetings at which the complainant had  "so 
request[ed]" the establishment of a panel. Accordin g to Article 6.1 of the DSU, if a panel was not 
established at the first DSB meeting at which the complainant "so requests", it must be 
established at the "following" DSB meeting at which the complainant "so requests", whether or not 
the two meetings were consecutive. For Honduras, that "following" DSB meeting was the present 
meeting.  
4.13.  Second, contrary to Australia's suggestion, Article 6.1 did not state that a request must be 
made at the DSB meeting immediately following the one at which a first request was made. 
Article 6.1 of the DSU provided that the sole condition that could limit a Member's right to establish a panel when it made its second request was positive consensus not to establish a panel. That condition did not arise at the present meeting. Accordingly, the panel must be established 
automatically. The DSB had no power to discuss, let alone decide, whether the panel may or may 
not be established. Giving effect to Australia's interpretation would be contrary to the object and purpose of Article 6.1 of the DSU in particular, and the DSU in general, which aimed at allowing 
parties to a dispute the time to arrive at a mutually agreed solution. According to Australia's view, 
following a first panel request, a complainant would be compelled to have a panel established at the very next DSB meeting, irrespective of whether there were ongoing discussions with a 
respondent following the first panel request.  
4.14.  Australia's position was not supported by Members' practice to date. In its statement, 
Honduras had referred to at least two previous cases in which the DSB had established a panel, even though the second meeting at which th e panel had been established did not follow 
consecutively from the DSB meeting at which the request was first made. As long ago as 1998, in 
"Brazil - Aircraft", a panel had been established pursuant to Canada's second request, which was 
filed almost two  years after the first request. In "Indonesia - Autos", the panel had also not been 
established at the DSB meeting immediately foll owing the first DSB meeting, but rather two 
months later.
9 Moreover, second panel requests had not been filed at consecutive DSB meetings 
when "special" meetings of the DSB had been held immediately following the "regular" meeting at 
which a first request had been made. For exampl e, in the dispute "Canada - Renewable Energy" 
(DS412), Japan had filed a first request at the DSB Meeting on 17 June 2011 but did not submit its second request at the very next DSB meeting, a "special" meeting held on 15 July 2011. Instead, Japan made its second request at the 20 July DSB meeting.
10 Article 6.1 of the DSU did not 
distinguish between "regular" and "special" DSB meetings, but referred to DSB meetings generally, 
whether regular or special. Australia's interpreta tion would, however, mean that a complainant 
would be obliged to place its second request on the Agenda of a "specially" convened DSB meeting 
                                               
9 Panel Report on "Indonesia – Certain Measures Affecting the Automobile Industry", WT/DS54/R, 
WT/DS55/R, WT/DS59/R, WT/DS64/R, adopted 23 July 1998, paras. 1.4, 1.13. 
10 See Minutes of DSB Meetings held on 17 June, 15 and 20 July 2011, WT/DSB/M/298, WT/DSB/M/299 
and WT/DSB/M/300. WT/DSB/M/337 
 
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 that was held after a regular meeting of the DSB at which a first panel request was made. 
Members had not, however, followed that practice. In that regard, Australia's position would introduce fundamental changes to Members' unders tanding of the operation of Article 6.1 of the 
DSU, which had prevailed since at least 1998. The Dominican Republic did not consider that it 
would be appropriate to allow a respondent to avoi d the establishment of a panel on the basis of a 
novel interpretation of the DSU provision that ha d not previously enjoyed support in the DSB. Any 
such changes to the understanding on Article 6. 1 of the DSU, which would diminish Members' 
rights under that provision, should be considered pursuant to the appropriate procedures set forth 
in the WTO Agreement. For all those reasons, th e Dominican Republic considered that the text, 
object and purpose, as well as practice concerning  Article 6.1, supported Honduras' right to have a 
panel established by negative consensus at the present meeting.  
4.15.  The representative of Guatemala said that his country wished to express its views with 
respect to Australia's comments regarding the establishment of a panel. Guatemala did not wish to 
comment on the substance of the dispute and its posi tion was without prejudice to its final position 
on this matter. In Guatemala's view, Australia's in terpretation of Article 6.1 of the DSU could not 
be justified by the text, object and purpose of that  provision. The DSB had no jurisdiction to rule 
on whether a panel should or should not be esta blished. Furthermore, the DSB did not have the 
authority to amend nor to make an authoritative in terpretation of Article 6.1 of the DSU. The DSB 
should not accept the imposition of additional conditions and/or qualifications to the second request for the establishment of a panel. That would be contrary to the object and purpose of Article 6.1. For those reasons, Guatemala would not be in a position to join in a consensus to rule 
on Australia's request. The panel requested by Honduras must be established at the present 
meeting, in accordance with Article 6.1 of the DSU. 
4.16.  The representative of the United States said that his delegation was surprised and 
disappointed with the position taken by Australia at the present meeting. The United States had 
thought that this issue had been resolved years ag o when it had first been raised in the DSB. The 
view that had been held then and now was that the DSU did not require that the second request 
for a panel be made at the meeting immediately following the first request in order for a panel to 
be established by negative consensus. Members had been operating under that assumption for 
years. There were a few examples identified by  Guatemala and the Dominican Republic in their 
interventions that highlighted the frequency with which this had happened. The United States said 
that it had a few other examples that it could provide but would save those for a later date. 
Instead, to illustrate how frequently this could come up, Members should just look at the Agenda item immediately preceding this item – the dispute between Colombia and Panama. A special DSB 
meeting had previously been scheduled to be held  at the beginning of September that would have 
fallen in between the first and second panel reques t in that dispute. If that meeting had not been 
cancelled, Australia's interpretation would allow Colombia to block the second panel request in that 
dispute as well. In the past five or six years, the United States was not aware of any Member 
raising such a concern before the DSB. The United  States had thought that this issue had been 
resolved and that was why the United States was disappointed to be having this discussion at the present meeting. This was an issue of systemic concern to the United States and other Members 
and adopting Australia's interpretation would impact the ability of Members to resolve disputes by 
forcing them to move forward with a second panel request. In terms of moving forward, the United States wished to echo a comment made by the EU. While it did not agree with everything 
that the EU had said in its statement about this i ssue, the United States did agree with the EU that 
it would be useful for Australia to reconsider it s position and agree to establish the panel without 
prejudice to its views. The United States believe d that this issue had been settled and believed 
that there was a pragmatic way forward that was available to Australia – to reconsider its position 
without prejudice to its views or the views of al l of the other Members at the present meeting. 
4.17.  The representative of Cuba said that her country supported Honduras' legal interpretation 
and wished to stress the importance of the principl e of negative consensus. Article 6.1 of the DSU 
provided a guarantee for the complaining party that a panel would be established. Australia's 
arguments made at the present meeting were not supported by the DSU text. Various Members had expressed their concerns with regard to Australia's measures on the plain packaging of 
tobacco. The repercussions and interest in Australia's measures were well known. About 35 
Members had expressed their interest to participate as third parties in the dispute initiated by Ukraine. Thus, many Members expressed concerns and Honduras' request for the establishment of 
a panel to examine those measures was aimed at resolving those concerns. That panel would not 
only hear Honduras' concerns but would also provide Australia the opportunity to defend itself and WT/DSB/M/337 
 
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 prove the consistency of its measures with WTO rule s. The establishment of a panel should also be 
of interest to Australia. Cuba did not see any n eed to delay the establishment of a panel and noted 
that such a delay would set a negative precedent. In that regard, Cuba made it clear that it would not accept setting a precedent that would have a negative impact on future complainants against 
Australia's plain packaging measures for tobacco products. There was no legal basis at the present 
meeting not to proceed with the establishment of a panel, as requested by Honduras. 
4.18.  The representative of Indonesia said that her country wished to highlight the procedural 
issue concerning this matter. Pursuant to Article 6.1 of the DSU, Indonesia supported Honduras' 
request for the establishment of a panel at th e present meeting to examine Australia's plain 
packaging measures. Indonesia was of the view that the DSB should consider this request as a second request. Indonesia had at least two ma in reasons why the DSB needed to consider 
Honduras' request in that manner. First, Article 6. 1 of the DSU stipulated that: "a panel shall be 
established at the latest at the DSB meeting following that at which the request first appears as an item on the DSB's Agenda". In Indonesia's view, there was nothing in WTO jurisprudence that 
required that a second request must, as a matter of law, follow a first request within a certain 
period of time in order for the DSB to establish a panel under Article 6.1 of the DSU. Second, there were various examples in prior WTO disputes where a second request had followed the first 
request two months later, such as in "Indonesia - Autos". In "Brazil - Aircraft", there was a gap of 
two years and yet the DSB had established a panel based on negative consensus. In that regard, in Indonesia's view, this request was legitimate and in accordance with WTO law and practices. Therefore, Honduras' request should be considered positively by the DSB at the present meeting.  
4.19.  The representative of China said that, although nearly ten months had elapsed since 
Honduras' first request had been filed to establish a panel, her country found it difficult to agree 
with Australia's interpretation of Article 6.1 of the DSU and to consider Honduras' request as the 
first request. The virtually automatic establishment of a panel at the second DSB meeting where 
the request was made was a great achievement of the DSU in the Uruguay Round negotiations. The principle had been finally established and clos ely followed by all Members and should not be 
shaken in any way. As the EU and other delega tions had already mentioned, the lapse of time 
between the first and second requests had appeared in several cases in the past, and Article 6.1 of the DSU did not distinguish between regular and special DSB meetings. Article 6.1 of the DSU should not be interpreted to require two consecutive meetings, or that the second request be 
made immediately following the first one. Accord ing to Article IX:2 of the WTO Agreement, the 
Ministerial Conference and the General Council shall have the exclusive authority to interpret the DSU provisions. Thus, China did not think it was appropriate for the DSB to interpret Article 6.1 at 
the present meeting. China joined the United States  in urging Australia to reconsider its position. 
Under Article 6.1 of the DSU, even if Australia ob jected, the panel should be established unless the 
DSB decided by consensus not to establish a panel. 
4.20.  The representative of New Zealand said that her country would refrain from commenting on 
the substance of this dispute but wished to take the opportunity to comment on one of the 
systemic issues raised by Honduras' request.  Regarding the timing and process for the 
establishment of panels, New Zealand had some sympathy for the views expressed by Australia 
regarding whether this request should be considered as a first or second panel request. 
New Zealand agreed with Australia's comments that it was important that the implications of Honduras' action for the system as a whole, rather than just for this particular dispute, were 
properly considered. New Zealand noted that Article 6.1 of the DSU gave a complaining party the 
ability to choose when to make its panel request, but also that the same Article envisaged the timely establishment of panels at the DSB meeting following an initial request. New Zealand 
agreed with Australia that the principle of automaticity for establishing panels under Article 6.1 
was not unlimited and should not allow for first panel requests to remain open indefinitely in the face of lengthy inaction on the part of a complaining party. As had already been noted at the present meeting, there may, and there had been, certain instances in which a second request was 
deferred in order to pursue settlement negotiat ions, which was something the DSU encouraged 
and had potential benefits for the Secretariat resources and the system, or to encourage or facilitate the formation of single panels by enablin g other complaints to "catch up". But, overall, 
there appeared to be good reasons for the assumption in the DSU that second panel requests be 
pursued in a timely manner including certainty and fairness for respondents and third parties. New Zealand was of the view that any departur e from that assumption and from established 
practice should be made only with good reason. WT/DSB/M/337 
 
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 4.21.  The representative of Panama said that the discussion at the present meeting concerned 
one of the most important principles of the dispute settlement system. Panama had taken note of 
all arguments but would not go into details because it agreed with those delegations who had stated that the interpretation of the WTO Agreement was reserved for Members in the context of 
the General Council or the Ministerial Conference. In that regard, the DSB was not the right forum 
to discuss this matter in detail. Panama noted Australia's statement and considered that, should the DSB take a decision contrary to what Honduras  had requested, it would enter into an exercise 
of interpreting the agreement which would raise a number of other systemic problems and issues. 
Members could discuss these issues in other fora. Panama believed that there were practical issues to be taken into account. If Members were to agre e with Australia, this would involve more work 
rather than reduce costs for the WTO. Delaying, ra ther than accelerating the process would reduce 
costs in particular for developing countries. The DSB must proceed with the establishment of the 
panel at the present meeting. Panama did not agree with the suggestion that the DSB should establish special terms of reference for this panel. Honduras had requested a panel with standard 
terms of reference and no other terms of refe rence should be considered. Panama noted the 
statements made by Australia as well as other delegations and believed that the DSB should establish a panel at the present meeting.  
4.22.  The representative of Japan said that, alth ough his country did not express any position on 
the facts and legal arguments in this dispute, Japan shared the concern expressed by many other 
Members with regard to Australia's interpretation of Article 6.1 of the DSU. Japan wished to reiterate that procedural issues that derived from the interpretation of the text should be resolved 
by a certain flexibility of the parties, and that such procedural matters which may affect 
jurisdiction should be carefully considered. 
4.23.  The representative of El Salvador said that her country did not agree with Australia's 
interpretation of Article 6.1 of the DSU. Honduras' request was well founded and therefore a panel 
must be established at the present meeting. 
4.24.  The representative of the Philippines said  that his country noted the systemic concerns 
expressed by many delegations on this matter. Si nce the issue concerned the understanding of the 
rights and obligations of Members under the covered agreements, the DSB may not be in a position to make a ruling or an authoritative interpretation on this matter.  
4.25.  The representative of Mexico said that, without prejudice to its position on the dispute 
before the DSB and without prejudice to the responsibilities of other WTO bodies, this procedural 
matter had systemic implications. A reading of the DSU did not point to the conclusion that Australia was putting forward in addition to the arguments on the ordinary meaning, context, 
object and purpose of Article 6.1 of the DSU. Mexico recalled Article 3.3 of the DSU. Article 3 
concerned "general provisions" and paragraph 3 referred to prompt settlement as essential to the effective functioning of the WTO. In fact, th e Article began with the words "[t]he prompt 
settlement … is essential". In Spanish, the wording was different, but it did say "es esencial … la 
pronta solución", and the French also spoke of "règlement rapide" as being "indispensable". Australia's position appeared to be contrary to the DSU principle. 
4.26.  The representative of Brazil said that there were several reasons why a delay or a gap may 
occur between the first and second panel requests. Bu t even if that delay kept the respondent in a 
"suspended state" about when and if the second re quest would be filed, in the absence of a cogent 
and clear interpretation of Article 6.1 of the DS U mandating the second panel request to be made 
at the subsequent meeting, one should be cautious not to engage in an exercise of interpretation. 
As the EU had suggested, this matter should be left to the panel. With regard to a special DSB meeting taking place between the first and second requests, Brazil found those arguments less 
convincing. Special meetings were convened for a particular purpose and a second panel request 
would not necessarily be considered during such meetings. Article 6.1 of the DSU could be read as referring to regular DSB meetings.  
4.27.  The representative of India said that his country had a systemic concern on this matter 
regarding the proper interpretation of Article 6 of the DSU. India respectfully disagreed with 
Australia's interpretation of Article 6 of the DSU.  Australia's interpretation was not supported by 
the text, the object and purpose of the DSU nor past practice. Article 6 of the DSU began with the 
phrase: "If the complaining party so requests, a panel shall be established...". In India's view, 
Article 6 of the DSU gave the complaining party th e choice when to establish a panel, which could WT/DSB/M/337 
 
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 at the latest be at the meeting following the meeting in which the request was first made. Article 6 
of the DSU did not prevent the complaining party fr om deciding to request a panel at a later time. 
Australia's argument to support its interpretation was that if the panel was not established in the subsequent meeting, then this had implications since it would lead to uncertainty, and that 
Members, especially developing countries, would not be able to plan their resources for the 
dispute. In India's view, that argument was not convincing. If one looked at the DSU, there was also uncertainty at other stages of the dispute settlement process, for example, whether or not the 
complaining party would request a panel after 60 days from the date of the request for 
consultations. There was also uncertainty at the panel composition stage where, often, the parties 
did not ask the Director-General to compose a panel after 20 days from the date of the establishment of the panel. There was a reason fo r this uncertainty. The purpose of the dispute 
settlement mechanism was to arrive at a mutually agreed solution. The DSU, therefore, required 
mandatory consultations to give diplomacy a chance to mutually resolve disputes. It was thus not proper to interpret Article 6 in a manner which would make Members rush for the establishment of 
panels without fully exploring the chances for arriving at a mutually agreed solution. India, 
therefore, disagreed with Australia's interpretation  and like the United States and China, requested 
Australia to reconsider its proposal. 
4.28.  The representative of Costa Rica said that  this matter had important systemic implications 
for all Members. Costa Rica considered that the text of Article 6.1 of the DSU did not specify any 
condition as to when the second panel request had to be filed, and the DSB would establish a panel automatically on the basis of negative consensus. For that reason, in Costa Rica's view there 
was no alternative but to establish a panel at the present meeting.  
4.29.  The representative of Nicaragua said that his country supported Honduras' request for the 
establishment of a panel. In its view, a panel must  be established at the present meeting. If not, 
this could set a negative precedent for the multila teral trading system. Nicaragua, a producer and 
exporter of tobacco and derivative products, had systemic interests in this matter. Nicaragua had expressed its concern about this matter and was of the view that a panel should be established at 
the present meeting. Nicaragua did not agree with Australia's position and referred to the 
jurisprudence from similar cases as well as the arguments set forth by Honduras and other delegations. Nicaragua would reserve its third-party right to participate in the Panel's proceedings.  
4.30.  The representative of Argentina noted that an important systemic issue had been raised and 
agreed with the majority of delegations who had expressed their views on this matter. In 
Argentina's view, neither the DSU text, DSB practice  nor DSU spirit, as encompassed in Article 3.7 
of the DSU, supported Australia's interpretation of  Article 6.1 of the DSU. It was for these reasons 
that Argentina was of the view that a panel mu st be established at the present meeting as 
requested by Honduras. 
4.31.  The representative of Chile said that his country supported the statement made by 
Argentina and would reserve its third-party rights to participate in the Panel's proceedings. 4.32.  The representative of Canada said that his country felt compelled, like others, to intervene 
on the systemic issues to add its views to those that considered Honduras' request at the present 
meeting as a second request. Canada did acknowledge, as others had, that there was and may still 
be some ambiguity surrounding the interpretation of  Article 6.1 of the DSU. However, Canada also 
agreed that more recent practice suggested more  certainty about the correct interpretation and 
many arguments that had been raised by others should be considered valid in that respect. More 
importantly, this debate perhaps put too much st rain on the DSB as a decision-making Body when 
it was raised in the context of a specific panel request, given that it went to the heart of the automaticity of panel establishment, the core inno vation in the DSU, as others had noted. Canada, 
therefore, was of the view that a panel should be  established at the present meeting. Canada was 
ready to join others in any necessary and separate discussions that would take place outside the context of this specific dispute to see whether or not Members needed to formally resolve any residual uncertainty around the correct operation of Article 6.1 of the DSU. 
4.33.  The representative of Thailand said that his country supported the majority of views that 
the first and second request did not have to come consecutively. Thailand was of the view that the 
DSB had no choice but to establish the panel at the present meeting. Thailand would reserve its 
third-party right to participate in the Panel's proceedings. WT/DSB/M/337 
 
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 4.34.  The representative of Ecuador said that, in accordance with Article 6.1 of the DSU, the DSB 
must establish a panel at the present meeting by negative consensus.    
4.35.  The representative of Zimbabwe said that her country supported the request made by 
Honduras and the statements made by India and other delegations. Zimbabwe recognized 
Honduras' request as a second request that was consistent with the existing rules, and supported 
the view that the panel should be established at the present meeting. 
4.36.  The Chairman noted that the discussion wa s stimulating and important. He was aware that 
Members were concerned that any unilateral ruling from the Chair may not necessarily carry the 
wishes of the entire Membership. Thus, any non-action, action, or action with conditions in any event constituted some form of interpretation. He  appreciated what had come out of the discussion 
and recalled the long history of the DSU provisions, which were an effort by the drafters to reform 
the GATT system whereby a responding party to a complaint could forever block a panel by not 
agreeing to its establishment. Thus, there was a common intention to add some element of automaticity in establishing a panel when efforts to mutually settle a dispute had been exhausted. 
As some Members had pointed out, adding a second request to a first request was to re-enforce 
the paramount desire wherever possible to have the parties directly concerned reach a mutually agreeable solution. However, differing views had been expressed at the present meeting, 
suggesting that the drafters may not have ever turned their attention beyond automaticity to 
consecutivity in any explicit manner. Having anticipated that this issue might arise, he had requested the Director of the Legal Affairs Divisi on, Ms. Valerie Hughes and her team, to undertake 
a review of the negotiating history and practice of the Membership since the WTO's inception. He 
invited Ms. Hughes to give a short synopsis of this research, so as to further inform the 
Membership of the context. 
4.37.  The Director of the Legal Affairs Divi sion, Ms. Valerie Hughes, made the following 
statement: "The results of our research are similar to what has already been articulated by some 
of the delegations today. We know, of course, that in  the vast majority of cases, consecutivity, if I 
may use that word, is followed. However, we found examples of situations that demonstrate that a 
particular Member was of the view that consecutivity is required and it felt obliged to make the 
second request at the immediately following meeting in order to, as it said, protect its rights. We 
also found examples where Members have not objected to panels being established, even when the requests for panel establishment were not consecutive. We found examples where a Member 
has withdrawn a second panel request from the DS B Agenda of the immediately following meeting, 
and in those instances stipulated that should the request be made a future meeting, it shall be 
treated as a second request. We also found in our files that there was a request in 1997 by a 
delegation that the DSB Chair, at the time, undertake consultations on the practice under 
Article 6.1 and on how Article 6.1 should be interpreted. In connection with that informal consultation, delegations asked the Secretariat to prepare a factual summary of the drafting 
history of Article 6.1. That factual summary reports that the intent was to, as the Chair has said, 
introduce automaticity in panel establishment in order to move away from the past practice of delays. The note also says that the Secretariat found no evidence that the negotiators discussed the consequences of a situation where the compla inant fails to inscribe its panel request as an 
Agenda item of the DSB meeting immediately fo llowing the meeting at which the request first 
appeared as an Agenda item. The files for that meeting include a document dated March 1997 entitled "Observations of [two Members]". It refe rs to the request made to the Chair to conduct 
consultations concerning Article 6.1. The document also makes several points. These two 
delegations indicate the view that consecutivity is not required and that the panel will be established at the subsequent meeting "regardle ss of when it takes place", unless there is a 
consensus otherwise. The document notes that the DSB practice has not been to require 
consecutivity. It says further that the DSU should not be interpreted in a manner that unduly limits a Member's flexibility after it makes a first request because it is desirable that settlement be pursued. The files do not reveal that any statemen t or interpretation or anything else was adopted 
or agreed after that consultation conducted by th e Chair. We also looked in the DSU negotiations 
files and found a note compiling "informal and preliminary comments submitted for the DSU Review by Members through 1 December 1998", reporting that several Members expressed the 
view that Article 6.1 does not require that requests for panel establishment be made at 
consecutive meetings. Of note is that there is no  overall statement. It is rather that several 
Members expressed the view that Article 6.1 does  not require consecutive meetings because to 
require that would, in the view of these delegati ons, seem to run contrary to the preference for 
working towards mutually acceptable solutions and can force a complaining party to request a WT/DSB/M/337 
 
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 panel when negotiations are proceeding to narrow or resolve the differences. One delegation is 
reported to have suggested that there should be a limit on that flexibility, while another delegation 
is reported to have said that there is ambiguity in the language of Article 6.1. That sums up our 
research on this question." 
4.38.  The Chairman said that, what he took from the research, from the present meeting's 
discussion and from the history, was that there was no definite interpretation among the 
Membership. The history showed that even in 19 97, when there had been a specific taskforce 
tasked to see if further precision was required, there had been no common position, despite some 
written papers on the subject. Second, he noted that, based on this discussion, delegations had cautioned that he should not, in any manner, take a decision contrary to Members' wishes. There had been various suggestions, or at least two major suggestions on how that follow up and focus 
might occur. The first one was via litigation, should it be raised in the course of this dispute by the 
parties themselves or by potential third parties. The second one was in some other form of discussion, whether at the DSB or in an informal grouping that Members may wish to undertake. 
Against that backdrop, it seemed that the Chair had a responsibility to all to respect the thoughtful 
views that each had offered and not to suggest any route that would offer any prejudice to any of the views. In listening to the debate, he had come to a conclusion similar to some of the 
delegations' suggestions that the DSB should take note of all of the views and comments 
expressed by the parties to the dispute and by ot her Members, and that the minutes should reflect 
this. He encouraged each delegation that had written statements to ensure that they were submitted for inclusion in the minutes of the pr esent meeting. The DSB would take note of all 
comments regarding Article 6.1 of the DSU and would note that many Members had suggested 
that the DSB should revert to this matter at a later date or in another setting. Against that 
backdrop of taking note for the purposes of th e dispute that was before the DSB at the present 
meeting, he proposed that the DSB, without prej udice to the views that had been expressed by 
any delegation, establish a panel with standard terms of reference. 
4.39.  The representative of the United States said that his country wished to intervene to get 
some clarity on the situation on where things stood. Before intervening, the United States 
recognized that this was an Agenda item in which the United States was a third party. The United States wondered whether Australia wished to take  the opportunity to respond. The United States 
did not want to deny Australia that opportunity and would thus defer to them should they wish to 
respond.  If not then the United States would offer some comments and thoughts. 
4.40.  The Chairman said that, should the DSB establish a panel in the manner he had suggested, 
which was without prejudice to the position of any party on this interpretive issue, he would ask 
delegations to indicate their third-party interest.  
4.41.  The representative of Australia said that his country had one query: it wished to know if the 
Chair was proposing that there be a decision with which all of the Members would actually concur. 
In that regard, Australia wished to clarify that it did not actually concur with the decision.  
4.42.  The Chairman said that, as he understood it, some Members had pointed out that a panel 
was established unless there was negative consensus. The unanimous consent of all Members was 
not required to establish a panel. As he had sa id at the outset, the views of each and every 
Member were recorded but the panel had been established. 
4.43.  The representative of Australia said that his country wished to reconfirm for the record that 
it did not agree with the views put forward by Honduras and other delegations about the 
interpretation of Article 6.1 of the DSU, nor did Au stralia accept the precedential value of some of 
the references to individual disputes put forwar d by a number of delegations. Australia noted the 
decision to establish a panel at the present meeting despite the important systemic concerns that 
it had raised and requested that its views be reflected in the record. Australia reserved its right to 
raise this issue before the Panel. Australia fully agreed that the WTO dispute settlement system should be flexible enough to allow parties to achieve a mutually agreed solution to a dispute at any time. However, Australia also wished to make it clear that, in the current case, the complaining 
party had made no attempt to reach out to Australia to resolve this dispute since the first panel 
request had been made at the DSB some ten months ago. Australia remained committed to 
defending this important public health measure. WT/DSB/M/337 
 
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 4.44.  The representative of the United States said that his country had difficulty understanding 
what had just transpired and would appreciate clarification on the matter. There were remarks 
made by many delegations, which seemed to express a view in this particular instance in opposition to the position held by Australia. The United States appreciated the views of the Chair 
as well as the research that had been provided by  the Secretariat, but it was having trouble seeing 
how the panel would be established. Could Australia clarify that, for the purposes of the present meeting, it was dropping its objection that this was not a second request and agreeing that it 
would be appropriate to establish a panel? If that was not the case, the United States did not 
entirely understand what the Chair was proposin g and whether there had been a ruling from the 
Chair, a decision by the DSB, or someone else. The United States felt that it was not appropriate to take a decision like this and did not understand what the mechanism would be to take a 
decision like this without the consent of the Members involved. 
4.45.  The Chairman said that he would try to be even more explicit. This would be a decision of 
the DSB to establish a panel under Article 6.1 of the DSU. That could be a decision taken and 
should be a decision taken, unless there was a consensus not to do so. Australia, in that context, 
with negative consensus, was free to record that it did not agree to a panel. To his knowledge, 
there was nothing that said that the parties to the dispute in particular must agree. 
4.46.  The representative of China said that her country did not agree with the United States that 
the DSB still needed to seek the consent from Aust ralia that the decision had been made and said 
that the Panel had been established at the presen t meeting, at the request of Honduras. As the 
Chair had made clear, the decision had been ma de on the basis of a negative consensus as 
provided in the DSU provisions. That was China's understanding of the situation. There was no 
need to seek a view from Australia on this. China hoped that the Chair would understand the current situation and not insist that Australia give its view on this. The Panel had been established 
by negative consensus. 
4.47.  The representative of Honduras said that his country was satisfied with the decision that 
had been taken to establish a panel. With regard to Australia's request for a single panel to 
examine Honduras' complaint and the complaint raised by Ukraine, Honduras noted that Article 9.1 
of the DSU stated that a single panel may be established to examine similar disputes. Under Article 9.1 of the DSU, however, there was no obligation to establish a single panel. In the "India - Patent" dispute, the Panel said that the establishment of a single panel was recommendatory and 
not mandatory. Article 9.1 of the DSU should not affect the substantive and procedural rights and 
obligations of individual Members. The establishment of a single panel without the agreement of the complaining Member could affect the right of that Member to a separate panel, thereby 
prejudicing that Member's procedural rights. As a result of Honduras' objection, a single panel 
could not be established. This decision to establish a single panel should be taken by positive consensus. This is in contrast to the negative co nsensus rule that applied under Article 6.1 of the 
DSU. This was confirmed by DSB practice and Hond uras wished to point out that on occasions, 
when the DSB had recommended the establishment of a single panel with respect to several 
complaints, no party had objected. If a party objected, then a single panel could not be 
established. In the "United States - Customs Bond Directive" dispute, a single panel had not been 
established because the United States had objected to it. In the "US - Steel Safeguards" dispute, 
the consolidation of several panels, in keeping with Article 9.1, had been established with the agreement of all parties. In the "Canada - Dairy" dispute, New Zealand stated that it did not object 
to its case being reviewed together with another complaint by a single panel. In "Korea - Alcoholic 
Beverages", the United States and Korea agreed to the establishment of a single panel. At the DSB 
meeting on 30 August 2013, a panel was establishe d to examine the dispute: "China - HP-SST". 
The DSB had previously established a panel with re gard to the dispute initiated by Japan on the 
same measure (DS454) imposed by China and the Panel had already been composed. A single panel was not established on 30 August 2013 because the complaining parties had not requested it. However, the parties had agreed that the same panelists would examine the dispute. DSB 
practice showed that Members understood that the establishment of a single panel was not 
automatic. Instead, parties can elect to have the panel proceedings harmonised pursuant to Article 
9.3 of the DSU. 
4.48.  The representative of the European Unio n said that the EU wished to draw Members' 
attention to Articles 2.2 and 2.4 of the DSU as context. What was clear in the EU's view was that 
there was no consensus at the present meeting not to establish a panel. Therefore, and with the 
caveat that Australia may raise this issue before the Panel as a jurisdictional matter, the DSB WT/DSB/M/337 
 
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 action that necessarily followed under Article 6.1 of the DSU was the establishment of a panel 
despite Australia's objection. 
4.49.  The representative of New Zealand said that her country wished to comment on Australia's 
request for the establishment of a single pane l to hear the complaints in DS434 and DS435. 
New Zealand firmly supported Australia's request and, in that regard, wished to place on record its 
views on this matter. In New Zealand's view, the DSU clearly encouraged and provided for single panels to be established for multiple complaints related to the same matter, and for good reason. 
The benefits of establishing a single panel incl uded efficiency, timeline ss and consistency for the 
system, fairness for respondents, and facilitation of the participation of smaller and more resource-constrained delegations in disputes affecting their interests. New Zealand did note that Article 9.1 of the DSU stopped short of requiring single panels. It provided that: "a single panel should be 
established to examine such complaints whenever feasible". In a situation such as the present 
one, where the two cases were similarly progressed, a single panel was clearly "feasible" in the sense of the DSU. While the overall number of di sputes/claims already brought against these same 
measures may increase the complexity of establishing a single panel, this did not, in 
New Zealand's view, make the establishment of a single panel for DS434 and DS435 "unfeasible". In its view, the slightly different scope of the claims in this instance did not have a bearing on the 
question of feasibility. A single panel could adopt appropriate procedures, for example, separate 
reports or findings for each complaint, to ensure that there was no disadvantage. Articles 9.1 and 10.1 of the DSU provided that the interests of th e parties to a dispute and those of other Members 
shall be fully taken into account during the panel process. Consequently, in New Zealand's view, 
the rights of the parties and the convenience of establishing a single panel must be balanced. 
Among the factors that favoured the establishment of a single panel were the common issues of fact and law that arose in both Ukraine and Honduras' complaints, and the savings that would be 
achieved in time and cost to the parties and to the WTO resources. In light of all the circumstances 
outlined at the present meeting, it was clear that Australia and, to a lesser extent, New Zealand and other third parties would suffer real prejudice if separate panels were established. On the 
other hand, it appeared that Honduras would not suffer any real prejudice if a single panel were 
established. All of these factors decisively outweighed Honduras' grounds for establishing separate panels. 
4.50.  The representative of Australia said that his country did not understand Honduras’ 
opposition to the establishment of a single panel. Australia had identified no other instance where 
either a complainant or a respondent had objected to the establishment of a single panel under Article 9.1 of the DSU where the original panel had not yet been composed. The practice, for a 
range of important reasons, had been to establish single panels in cases such as the one currently 
before the DSB. The procedures for multiple complainants under Article 9 of the DSU were another means of ensuring the security and predictability of the WTO dispute settlement system. The 
measure at issue in both disputes was the same measure; the claims in both disputes were very 
similar and, in some respects, identical. The Panel that had been established with respect to Ukraine's complaint had not yet been composed. There was, therefore, no practical impediment to the establishment of a single panel. The estab lishment of a single panel represented the most 
efficient means of hearing the disputes. To deci de otherwise would place an undue burden on 
Australia as the respondent by requiring Australia to respond to two very similar complaints in two separate proceedings. It would also place an undue burden on third parties participating in the 
separate proceedings and an undue burden on the WTO Secretariat in supporting separate 
proceedings. On the other hand, it was not clear how Honduras or Ukraine could be negatively affected by the establishment of a single panel, particularly as Honduras was so keen to have a 
panel established at the present meeting. Australia  noted that under Article 9.2 of the DSU, the 
Panel may provide separate panel reports if so requested by Honduras or Ukraine or any other party to the dispute. Australia strongly urged the Chairman to take into account the rights of all Members concerned, as the terms of Article 9.1 required. If however, despite Australia's views, 
and as a result of Honduras' opposition, a single panel were not established to hear these two very 
similar complaints relating to the same matter, Australia did expect that the same persons shall serve as panelists on each of the separate panels  and that the time-table for the panel process in 
such disputes shall be harmonized, pursuant to Article 9.3 of the DSU. 
4.51.  The representative of the United States said that his country was in a difficult position 
because, while it did not agree with Australia's interpretation of Article 6.1 of the DSU, the United 
States had thought that the issue had already been resolved. The United States wished to support 
Honduras' position and understood that Australia was still objecting to the establishment of a WT/DSB/M/337 
 
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 panel, or at least Australia had not clarified that it had dropped that objection. The United States 
had hoped that Members could find a pragmatic way forward and that Australia would withdraw its objection without prejudice to its systemic views. 
4.52.  The Chairman said that he and perhaps other Members may need clarity from the 
United States. This was, under Article 6.1, a second request for a panel. As the EU had noted, 
either there was a consensus not to establish a panel, or it shall be established. Australia was trying to generate a negative consensus but had not generated full support for that view. Thus, 
pursuant to Article 6.1 of the DSU, there seemed to be a common view that there was no lack of 
clarity as to how the DSB was proceeding or under what authority.  
4.53.  The representative of the United States said that his country's concern was that there was a 
Member objecting to a decision that was being taken and yet the DSB was proposing to take it 
anyway. 
4.54.  The Chairman said that a decision could be taken unless all Members agreed not to. 
4.55.  The representative of the United States said that his country was still trying to understand 
Australia's position. If the DSB were not able to get clarity on this issue, it may need to consider 
whether there were other ways to resolve it and whether it needed to suspend the proceedings to talk through exactly what was going on. The US concern was that by proposing to take a decision 
on the establishment of a panel without Australia's consent on whether or not this was the second 
request, the DSB was, de facto, taking a decision that this was a second request. It was the leap 
from the first step to the second step that was the problem with this approach. 
4.56.  The Chairman said that he would always welcome a consensus but the DSB did not have 
that at the present meeting. Australia's view, as he had noted, would be fully recorded. There was 
nothing extraordinary about a decision to establish a panel by the DSB since the second panel request would result in such a decision of the DS B. That was the automaticity – in the absence of 
negative consensus. He did not mean to speak for Australia but said that Australia may wish to 
respond to the US view to join the consensus in a manner that might still record fully their legal view, which ultimately may be subject to litigation or negotiations. But he was trying to reconcile 
the US concern with the plain language of negative consensus in Article 6.1 of the DSU.  
4.57.  The representative of the Bolivarian Republic of Venezuela said that, regarding the US 
statement, developing countries defended the principle of consensus in the DSB, and this principle 
must be preserved. However, Article 6.1 of the DSU referred to negative consensus. In 
Venezuela's view, from the moment Australia referred to establishing a single panel under 
Article 9.1 of the DSU, Australia had accepted a decision of the DSB to establish a panel. In other words, Australia had already accepted a panel at the present meeting.  
4.58.  The representative of Honduras said that  his country thanked Members and the DSB for the 
decision to establish a panel, in accordance with Ar ticle 6.1 of the DSU. With regard to the issue of 
a single panel raised by Australia, Honduras did not agree with the establishment of a single panel 
under Article 9.1 of the DSU. Honduras had already presented its views on this matter. The fact 
that there was no agreement between the parties to the dispute was enough to prevent the establishment of a single panel under Article 9.1 of the DSU. 
4.59.  The Chairman said that Members should k eep their focus on the Article 6 issue. The DSB 
would come back to the Article 9.1 issue and the single panel issue once it had settled the 
establishment issue, the negative consensus and Australia's objection.   
4.60.  The representative of the Dominican Republic said that his country believed that the 
Article 6.1 issue had been sufficiently discussed. Although the respondent had objected, there had 
been admission, as Venezuela had stated, by Australia on the establishment of a panel since they had requested the establishment of a single pane l. In that regard, as far as the Dominican 
Republic was concerned, Honduras' request had been accepted. WT/DSB/M/337 
 
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 4.61.  The Chairman said that the DSB procedure under the DSU provisions was that when there 
was a second request for a panel, at the following meeting, whatever that meant, a panel shall be 
established unless there was a consensus not to do so. There was at least one if not two delegations that had considered that those requir ements were not met. However, given the second 
request and given no negative consensus, the pa nel was established. In that context, the DSU 
fully noted the views of Australia, New Zealand and other delegations regarding the "consecutivity" issue. In his view, that preserved the US right to continue to advocate that this issue had been 
settled long ago, whether in a third-party contex t ,  b e f o r e  a  p a n e l ,  a t  t h e  D S B ,  o r  i f  M e m b e r s  
agreed to reconstitute the informal consultations that had taken place in 1997 or 1998. It fully preserved the rights of Australia and New Zealan d to argue that there must be two successive 
meetings and it preserved the right of all other delegations to deepen that debate by discussing 
whether it was two successive regular meetings, a special meeting, of what was the balance of 
rights and interests. It avoided any suggestion that the Chair alone had tried to direct the DSB to make a decision or an interpretation in one direction or another that would bound the Membership 
for the future. It preserved everything status quo ante but allowed a panel to be established, 
subject to the discussions on Article 9.1 and the issu e of a single panel. That was how he proposed 
to proceed.  
4.62.  The representative of the United States said that the Chair had been constructive and 
creative. The US views had been fully reflected in the debate and perhaps more reflected than 
other delegations would like. For the purposes of the present meeting, without prejudice to their 
views, as the United States understood it, Austra lia was acknowledging the fact that a panel was 
being established at the present meeting. This was not being done by the Chair, but this decision 
was being taken by the Membership with the agreement of Australia. 
4.63.  The Chairman said that he was prepared to  note the further diminution of any authority on 
his part as the Chair in the face of the Membership. The US view would be fully recorded. 
Whatever the right word of acknowledgement, acquiescence, non-objection, silence was, it was not endorsement of the procedure by Australia, but it was not a blocking of the DSB proceeding. 
Members had agreement on the Article 6 approach, which was not an action of the Chair. He saw 
no objection from Australia to his observations or to those of the United Sates. Having said that, 
he wished to proceed to any remaining discussion on the issue of a single panel.   
4.64.  The representative of the European Union said that the EU was slightly worried about where 
the discussion might be heading. For over 15 years Members had worked on the basis that, 
despite a Member formally objecting to a panel request, a panel was established at the second DSB meeting unless the DSB decided by consensus not to establish a panel. This was what 
negative consensus was about. The EU hoped that this would be clearly recorded. 
4.65.  The representative of the United States said that his country wished to respond to the 
comments raised by the EU. As the United States understood it, there were two issues: whether it 
was a first or second panel request and whether a panel could be established by negative 
consensus if it were a second request. The US concern was about the leap between the two steps 
rather than the latter step itself. 
4.66.  The Chairman said that he observed two thin gs with regard to Article 9.1 of the DSU. In his 
view, it was important to note that as early as 1998 in the "India - Patents" dispute, the Panel had 
been explicit in saying that the establishment of a single panel under Article 9.1 was not mandatory, it was a recommendation. It was an encouragement, as New Zealand and others had 
noted and there was a lot of common sense to consolidation and litigation economy where 
possible. However, the panel itself, and it was not reversed or challenged on appeal, said it was a 
recommendation. Second, in reviewing the history of single panels, it was interesting to note that, 
on the one hand, other cases were discovered where even if a second complainant came along 
later – as long as three or four months later – that length of time and that gap was not a bar to the establishment of a single panel. Members had been given an additional ten days to reserve 
their third-party rights because of the second compla int, even though it came along three, or four, 
or five months later. But what was interesting was that on no previous occasion had a single panel 
been established with regard to a second complaint after action had been taken by the panel that had been composed for the first complaint. If further steps had been taken, then it would not be a 
precedent for the situation before the DSB. Taking into account the "India - Patents" case, which 
determined that establishing a single panel was a recommendation, the issue under consideration at that point was a matter of positive rather than negative consensus and he did not hear full WT/DSB/M/337 
 
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 agreement to have the DSB positively agree that there shall be a single panel. There had been no 
universal decision to proceed that way. Against that backdrop, his suggestion was in effect the agreed approach the DSB had sought in order to exhaust this Agenda item. He noted that there 
was no need for additional observations on the si ngle panel because preferences had been strongly 
expressed each way. An affirmative consensus was required for the single panel, which was not 
the case at the present meeting. In that re gard, he noted that the DSB had exhausted the 
discussion on this Agenda item and that, subject to all the conditions and notes recorded, a panel 
was established.  
4.67.  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. 4.68.  The representatives of Argentina, Braz il, Canada, Chile, China, Cuba, the Dominican 
Republic, the European Union, Guatemala, Indi a, Indonesia, Japan, Korea, New Zealand, 
Nicaragua, Nigeria, Norway, Oman, Panama, the Philippines, Singapore, South Africa, Chinese 
Taipei, Thailand, Turkey, Ukraine, the United States, Uruguay and Zimbabwe reserved their third-
party rights to participate in the Panel's proceedings. 
5  UNITED STATES – CERTAIN COUNTRY OF ORIGIN LABELLING (COOL) REQUIREMENTS A  Recourse to Article 21.5 of the DSU by Canada: Request for the establishment of a 
panel (WT/DS384/26) 
B  Recourse to Article 21.5 of the DSU by Mexico: Request for the establishment of a 
panel (WT/DS386/25) 
5.1.  The Chairman proposed that the two sub-it ems to which he had just referred be considered 
together. He recalled that the DSB had considered  these matters at its meeting on 30 August 2013 
and had agreed to revert to them. He first drew attention to the communication from Canada contained in document WT/DS384/26 and invited the representative of Canada to speak. 
5.2.  The representative of Canada said that his country wished to refer to document 
WT/DS384/26 and to its statement made at th e August DSB meeting under the same Agenda 
item. As it had previously indicated, Canada considered that the amended COOL measure, adopted 
by the United States on 23 May 2013, did not bring the United States into compliance with the 
DSB's recommendations and rulings in the "US-COOL" dispute. Rather, the amended COOL measure only served to deepen the discrimination found in the original labelling requirements. Accordingly, Canada had no choice but to exercise its right at the present meeting to request, for a 
second time, that a panel with standard terms of  reference be established to examine whether the 
United States had brought its measure into compliance with the DSB's recommendations and rulings. As provided for in Article 21.5 of the DSU,  Canada hoped that it would be possible to refer 
this matter to the original Panel. If Mexico and the United States agreed, Canada would also agree 
that a single panel be established to deal both with its complaint and Mexico's.  Canada looked 
forward to working with the United States in the coming days to ensure that the panel could 
conduct its work within the prescribed timelines . In the meantime, Canada remained ready to 
discuss with the United States other measures it might take to bring itself into compliance as quickly as possible.  
5.3.  The Chairman drew attention to the communication from Mexico contained in document 
WT/DS386/25 and invited the representative of Mexico to speak. 5.4.  The representative of Mexico said that hi s country wished to refer to its statement made 
under the same Agenda item at the previous meet ing. Mexico was requesting the DSB to establish 
a panel under Article 21.5 of the DSU because it considered that the United States had failed to 
comply fully with the DSB's rulings and recommendat ions. Mexico urged the United States to adopt 
the necessary measures to do so. Mexico hoped that this matter would be examined by the 
original Panel. WT/DSB/M/337 
 
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 5.5.  The representative of the United States said that his country was disappointed that Canada 
and Mexico had made second requests for the es tablishment of panels in this matter. As the 
United States had explained at prior meetings of the DSB, the US Department of Agriculture had issued a final rule that fully met the concerns expressed in the adopted reports by ensuring that 
consumers were provided with detailed and accurate information on origin. Accordingly, the final 
rule had brought the United States into full compliance with the DSB's recommendations and rulings in this dispute. Although it was unfortunate that Canada and Mexico were nonetheless 
pursuing a compliance proceeding, the United States was prepared and ready to rebut any claims 
regarding the US compliance measure. 
5.6.  The DSB took note of the statements and agreed, pursuant to Article 21.5 of the DSU, to 
refer to an original Panel, if possible, the matter raised by Canada in document WT/DS384/26 and 
the matter raised by Mexico in document WT/DS386/25. It was agreed that the terms of reference 
would be standard.  
5.7.  The representatives of Brazil, China, the European Union, India, Japan, Korea and 
New Zealand reserved their third-party rights  to participate in the Panel's proceedings. 
6  CHINA – ANTI-DUMPING AND COUNTERVAILING DUTY MEASURES ON BROILER 
PRODUCTS FROM THE UNITED STATES 
A  Report of the Panel (WT/DS427/R and WT/DS427/R/Add.1) 
6.1.  The Chairman recalled that, at its meet ing on 20 January 2012, the DSB had established a 
panel to examine the complaint by the United States pertaining to this dispute. The Report of the 
Panel contained in document WT/DS427/R and Add.1 had been circulated on 2 August 2013 as an 
unrestricted document. The Report of the Panel was before the DSB for adoption at the request of 
the United States. The adoption procedure was without prejudice to the right of Members to express their views on the Report. 
6.2.  The representative of the United States sa id that his country was pleased to place the Panel 
Report on Broiler Products on the Agenda of th e present meeting. This dispute involved China's 
imposition of significant levels of anti-dumping (AD) duties and countervailing duties (CVD) on 
broiler products from the United States. As the Unit ed States said that it would summarize in a few 
minutes, the Panel had correctly found that China's AD and CVD measures had serious substantive and procedural deficiencies. The Report was important in at least three respects. First, the Report was important both for US exporters, and for Chinese consumers, of US chicken broiler products. 
The United States was the world's leading producer of these high-quality poultry products. The 
duties that China had maintained on US exports ha d unjustifiably restricted US exports, resulting 
in a drop of nearly 80% since China initiated its investigations. The United States looked forward 
to China's compliance with the recommendations and rulings in the Report, and to a return to prior 
levels of trade.  
6.3.  Second, this dispute was important because it was one of a series of disputes involving what 
appeared to be a systemic misuse by China of AD and CVD measures. In November 2012, the DSB 
had adopted similar findings with regard to China's AD and CVD measures on a high-tech US steel product. A third panel was currently considering US claims that China's AD and CVD measures on US automobiles likewise involved pervasive breaches of WTO obligations. The United States also 
noted that other Members also were pursuing similar claims involving other AD and CVD measures 
adopted by China. The United States hoped that Ch ina would respond to the series of disputes by 
making the systemic changes necessary to begin operating its AD and CVD regimes in accordance 
with WTO rules.  
6.4.  Third, this Report also had important systemic findings that would benefit all Members. For 
example, the Report confirmed that WTO rules re quired meaningful transparency, including with 
respect to the disclosure of the information that resulted in the dumping margin. The Report 
confirmed that price comparisons in injury dete rminations must not be distorted by comparing 
dissimilar products. The Report also found that authorities may not arbitrarily reject legitimate cost information submitted by respondents in order to create artificially inflated margins. More 
specifically, the Report that would be adopted at  the present meeting included the following key WT/DSB/M/337 
 
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 findings. The Panel had found that China had breached Article 6.2 of the AD Agreement11 by failing 
to provide an opportunity for interested parties with adverse interests to meet and present opposing views and to offer rebuttal arguments. The Panel had found that China had failed to require non-confidential summaries of allegedly conf idential information in breach of Article 12.4.1 
of the SCM Agreement
12, and Article 6.5.1 of the AD Agreem ent. This failure had prevented the 
United States and US companies from gaining a re asonable understanding of the substance of the 
information. The Panel had found that China had failed to disclose essential facts in breach of 
Article 6.9 of the AD Agreement, in particular the formulas and data used to determine the 
existence and margins of dumping. The Panel had found that China had breached Article 2 of the 
AD Agreement due to the unjustified rejection of certain US producers' costs as kept in their books and records. The Panel had found that China had breached Article 19.4 of the SCM Agreement and 
Article VI:3 of the GATT 1994 by levying countervailing duties in excess of the amount of 
subsidization. The Panel had found that China had breached its obligations under the AD and SCM Agreements when it applied facts available to calc ulate the "all others" rate for unknown producers 
and exporters in the AD and CVD investigations. The Panel had also found that China had 
breached the AD and SCM Agreements by failing to disclose the essential facts, as well as its 
findings and conclusions with regard to these rates.  
6.5.  Lastly, the Panel had found that China had breached its obligations under the AD Agreement 
and the SCM Agreement with respect to its underselling analysis because China had relied on subject import and domestic average unit values that included different product mixes, without taking any steps to control for differences affecting price comparability. In light of this flawed 
underselling analysis, the Panel had also found China's finding of price suppression to be 
inconsistent with China's obligations. The United States also noted, as was not surprising in a report covering such a broad range of issues, that the United States did not agree with every 
finding made by the Panel. The Panel had not up held the US claim that China had skewed the 
injury analysis by excluding domestic producers that did not support the investigation. The Panel 
had made this finding even though the Appellate Body had previously confirmed that an injury 
analysis must not be based on a biased subset  of the domestic industry. The United States 
understood that this finding related only to the unique facts of this dispute. The Panel had not found China's failure to compare prices at the same level of trade to be inconsistent with its obligations under the AD Agreement or SCM Agreem ent. Reconciling this finding with prior panel 
and Appellate Body reports was difficult. Again, the United States understood that this finding was 
tied to the unique facts of the dispute. In conclusion, for the reasons it had set out at the present meeting, the United States was pleased to propos e that the DSB adopt this important Report. The 
United States looked forward to prompt action by China to comply with the findings in this dispute. 
As noted, the United States also hoped that China would begin to address its systemic problems so as to ensure that all of its AD and CVD investigations comported with its WTO obligations. 
6.6.  The representative of China said that her country wished to register its disagreement with 
any comments that were not within the scope of the dispute under this Agenda item, especially 
those with respect to the trade remedy measures currently under the Panel's proceedings. China thanked the Panel and the Secretariat for their work in this dispute as well as the third parties for 
their participation. China welcomed the fact that the Panel supported China's claims regarding 
certain issues in this dispute, such as the definition of domestic industry, price comparability in terms of levels of trade, and the manner to info rm unknown exporters. China believed that these 
findings were correct and represented a proper resolution of these issues. However, China 
regretted that the Panel had concluded that the measures at issue were inconsistent with the Anti-Dumping Agreement and the SCM Agreement. China was also concerned about some of the Panel's 
rulings, in particular the Panel's approach regarding the disclosure of the essential facts. China 
believed that further clarification on such types of issues in the future would be helpful to Members.  
6.7.  The representative of Korea said that his country had not participated as a third party to this 
dispute, but wished to make brief comments on one point contained in the Panel Report. One of 
the issues in the dispute was whether communications to the general public were an adequate notice to unknown interested parties to which th e anti-dumping investigating authority had applied 
"facts available" under Article 6.8 and Annex II of the Anti-Dumping Agreement. On this issue, the 
Panel had ruled that notices published in an official gazette or on the internet were sufficient to 
                                               
11 Agreement on Implementation of Article VI of the GATT 1994 ("AD Agreement"). 
12 Agreement on Subsidies and Counterva iling Measures ("SCM Agreement"). WT/DSB/M/337 
 
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 provide adequate notice to unknown interested part ies. Korea agreed with the Panel on this point. 
As had rightly been pointed out by the Panel, investigating authorities may have no choice but to proceed through communications to the general public to request information from unknown interested parties. With regard to unknown interested parties who were unaware of the ongoing 
investigation at the time of the investigation, "facts available" should be applicable, provided that 
the investigating authority had exercised its best ef forts to give an appropriate public notice. This 
was precisely the position that Korea had presented in the DS440 dispute proceedings as a third 
party to the dispute. Korea believed that this was the right way of interpreting Article 6.8 and 
Annex II of the Anti-Dumping Agreement, and wa s pleased that the Panel had taken the same 
view. 
6.8.  The DSB took note of the statements and adopted the Panel Report contained in document 
WT/DS427/R and Add.1. 
7  PROPOSED NOMINATIONS FOR THE INDICATIVE LIST OF GOVERNMENTAL AND 
NON-GOVERNMENTAL PANELISTS (WT/DSB/W/512) 
7.1.  The Chairman drew attention to docu ment WT/DSB/W/512, which contained three new 
names proposed by Japan for inclusion on the indicative list of governmental and non-
governmental panelists, in accordance with Arti cle 8.4 of the DSU. He proposed that the DSB 
approve the names contained in document WT/DSB/W/512. 
7.2.  The DSB so agreed. 
8  CHINA – CERTAIN MEASURES AFFECTING ELECTRONIC PAYMENT SERVICES A.  Statement by the United States 
8.1.  The representative of the United States, speaking under "Other Business", said that China's 
measures affecting electronic payment services (EPS ) continued to be of significant and substantial 
concern to the United States. In the EPS dispute, the DSB had found that China had instituted 
measures to block and discriminate against non-Chinese suppliers of electronic payment services, 
all to protect and to privilege its own state-favoured entity, China Union Pay. China had agreed to bring its measures into compliance 11 months after the adoption of the DSB's recommendations 
and rulings – and that deadline was 31 July 2013. However, to date no foreign EPS suppliers were 
able to do RMB business in China; nor was there any way for them to obtain the authorization that China stated was necessary in order to do business in China. This was despite China's WTO commitments and the clear statement by the Panel that China's services commitments included an 
obligation to give EPS suppliers of other WTO Members access to its market. It was over one year 
since the adoption of the Panel Report and over tw o months since the conclusion of the reasonable 
period of time. The United States understood that a regulation to provide access for foreign EPS 
suppliers was being drafted. Although the United States had been engaging with China, China had 
not provided any specific time by which it woul d publish the draft nor had it communicated clearly 
what criteria it would employ in issuing licenses . The United States remained seriously concerned 
with China's compliance efforts and hoped the two Members could work together to achieve 
measurable progress in the near term. 
8.2.  The representative of China said that, as it had reported at the DSB meeting on 
23 July 2013, China had fully implemented the DSB's recommendations and rulings within the 
reasonable period of time in this dispute. With respect to the US concerns, China remained open to 
further bilateral discussion. At the two following bilateral technical meetings, China had made further explanation and clarification to the United States with respect to the implementation. 
Regarding the market access commitment issues, China urged the United States to read closely 
the Panel Report. The Panel's ruling on the market access commitment issue was very limited. In respect of mode 3 under Article XVI of th e GATS, the Panel had only found that the 
Hong Kong/Macao requirements were inconsiste nt with Article XVI:2(a) of the GATS. China 
remained open to discuss, at the appropriate forum, the US concerns that were outside the implementation of the DSB's rulings and recommendations in this dispute.  WT/DSB/M/337 
 
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 8.3.  The Chairman said that the two statemen ts had provided some enlightenment as to the 
current state of play. It was up to the two delegations to decide whether in future, either one 
would wish to inscribe this matter on the Agenda of the DSB so as to refrain from making longer statements under "Other Business". 
8.4.  The DSB took note of the statements. 
9  STATEMENT BY THE CHAIRMAN REGARDING SOME MATTERS RELATED TO THE 
APPELLATE BODY 
9.1.  The Chairman, speaking under "Other Business", said that he wished to provide delegations 
with a further update on the process for the possible reappointment of one Appellate Body 
member. He recalled that the DSB Decision of 24 May 2013 directed him to conduct consultations on the possible reappointment of Mr. Peter Van den Bossche. He assured delegations that he 
continued to take that responsibility very seriously and with a fair amount of focus and dedication. 
He had continued to conduct consultations and had particularly focused on Members and delegations who had a wealth of experience both offensive and defensive in dispute settlement 
matters. He had drawn on and sought the wisdom of those with special expertise, for example, 
former DSB Chairs, certain DDGs and others. He would continue those consultations and had every intention of meeting the deadline for coming forward with the results of those consultations.  
9.2.  With regard to the selection process for an Appellate Body member, the Chairman said that 
he had sent out a fax that set the date for the interviews by the Selection Committee. The interviews would be held on 21 October 2013. Delegations wishing to meet the candidates were invited to do so by contacting directly the Missions of the respective candidates.  As had been 
explained in the fax, delegations wishing to meet with the Selection Committee were invited to 
contact the Secretariat, Council/TNC Division, to make an appointment. The Selection Committee would be available to meet with delegations on 24, 25 and 28 October. Alternatively, delegations 
may send comments in writing to the Chair of the DSB, in care of the Council/TNC Division, no 
later than 31 October 2013. As had been agreed by the DSB, following the interviews and consultations with delegations, the Selection Committee intended to meet its deadline and to make 
its recommendation not later than 7 November 2013. The recommendation would be sent by fax 
to delegations so that it may be considered by the DSB at its meeting on 25 November 2013. 
9.3.  The representative of Brazil said that hi s country took note of the Chairman's statement 
regarding the possible reappointment of one Appella te Body member. Brazil was confident that the 
Chair, in the course of his consultations, would ensure the respect for the integrity, impartiality 
and independence of the Appellate Body member s with a view to strengthening the dispute 
settlement mechanism. Furthermore, he observed that it may be desirable for WTO Members to 
undertake a close look at Article 17.2 of the DS U in order to discuss and delimitate under which 
circumstances reappointment would or would not be automatic. 
9.4.  The representative of the European Union said that his delegation fully endorsed the 
statement made by Brazil. 9.5.  The DSB took note of the statements. 
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