RESTRICTED  
  
WT/DSB/M/411  
 
28 June 2018 
(18-4101) Page: 1/5 
Dispute Settlement Body  
9 April 2018    
 
MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 9 APRIL 2018 
Chairperson : Ms. Sunanta Kangvalkulkij  (Thailand)  
Prior to the adoption of the Agenda , the item concerning the adoption of the Panel Report in the 
dispute " Korea – Import Bans, and Testing and Certification Requirements for Radionuclides 
(Japan)"  (DS495) was removed from the proposed Agenda following Korea's decision to appeal the 
Report.  
 
Table of Contents  
 
1   UNITED  STATES – COUNTERVAILING MEASU RES ON SOFTWOOD LUMB ER 
FROM CANADA  ................................ ................................ ................................ .................  1 
A.  Request for the establishment of a panel by Canada  ................................ ...........................  1 
2   UNITED  STATES – ANTI -DUMPING MEASURES APP LYING DIFFERENTIAL 
PRICING METHODOLOGY TO SOFTWOOD LUMBER F ROM CANADA  ................................ ... 2 
A.  Request for the establishment of a panel by Canada  ................................ ...........................  2 
3   RUSSIA – ANTI -DUMPING DUTIES ON LI GHT COMMERCIAL VEHIC LES FROM 
GERMANY AND ITALY  ................................ ................................ ................................ ....... 3 
A.  Report of the Appellate Body and Report of the Panel  ................................ .........................  3 
 
 
1  UNITED  STATES – COUNTERVAILING MEASU RES ON SOFTWOOD LUMB ER FROM 
CANADA  
A.  Request for the establishment of a panel by Canada (WT/DS533/2)  
1.1.  The Chairperson  recalled that the DSB had consi dered this matter at its meeting on 
27 March  2018 and had agreed to revert to it. She drew attention to the communication fro m 
Canada, contained in document WT/DS533/2, and invited the representative of Canada to speak.  
1.2.  The representative of Canada  said that, on 27  March  2018, his country had requested the 
establishment of a panel to review countervailing measures, which  had been imposed by the 
United  States, on certain softwood lumber products from Canada. Consultations, which had been 
held in Janu ary 2018, had failed to resolve the matter. Canada found it unfortunate that the 
United  States had decided to block this request. Canada considered that the 
United  States'  measures were inconsistent with its obligations under the Agreement on Subsidies 
and Countervailing Measures and the GATT  1994. Therefore, Canada was requesting, once again, 
the establishment of a WTO panel to examine this matter with standard terms of reference. The 
duties, which had been imposed as a result of the United  States' counter vailing measures, were 
having a negative impact on Canadian softwood lumber producers in various Canadian provinces. 
Canada remained open to continue its dialogue with the United  States in a manner, which would 
address Canada's concerns.  WT/DSB/M/411  
 
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  1.3.  The representative  of the United  States  said that the United  States  was disappointed that 
Canada had chosen to move forward with a request for panel establishment. As the United  States 
had explained to Canada, the measures identified in the request were fully co nsistent wit h US 
obligations under the WTO Agreement. Additio nally, as had been noted at the  27 March 2018 DSB 
meeting, the United  States had serious concerns with this panel request. Aside from the flawed 
substance of the request, the panel request included an item t hat had not been identified in 
Canada's request for consultations, and thus had not been the subject of consultations. Further, 
the panel request included claims against so -called "measures" that did not exist and could not be 
challenged "as  such". The Uni ted States was disappointed that Canada had not addressed these 
concerns, but had instead immediately requested a special DSB meeting to consider its panel 
request for a second time.  
1.4.  The representative of Canada  said that his country had requested cons ultations concerning 
the United  States' final countervailing and anti -dumping determinations. C anada had identified the 
United  States countervailing and anti -dumping duty orders as measures that would subsequently 
form part of these proceedings. The fact t hat these orders had been issued after the consultations 
request had been filed, had not changed the scope or the essence of this dispute between the 
parties. Therefore, these orders fell properly within the Panel's terms of reference.  
1.5.  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.  
1.6.  The representatives of Brazil , China , the European  Union , Japan , Kazakhstan , Korea , the 
Russian  Federation , Turkey  and Viet Nam reserved  their third -party rights  to participate in the 
Panel's proceedings . 
2  UNITED  STATES – ANTI -DUMPING MEASURES APP LYING DIFFERENTIAL P RICING 
METHODOLOGY TO SOFTW OOD LUMBER FROM CANA DA 
A.  Request for the establishment of a panel by Canada (WT/DS534/2 ) 
2.1.  The Chairperson  recalled that the DSB considered this matter at its meeting on 
27 March  2018 and had agreed to revert to it. She drew attention to the communication from 
Canada, contained in document WT/DS534/2, and invited the representative of Canada to speak.  
2.2.  The representative of Canada  said that, on 27  March  2018, his country had also requested 
the establishment  of a panel to review the United  States' application of the Differential Pricing 
Methodology in its anti -dumping determinations re garding certain softwood lumber products from 
Canada. Canada and the United  States had held consultations in January  2018, which had not 
resulted in the resolution of this dispute. Canada had requested the establishment of a panel to 
examine this matter, a nd had been disappointed that the United  States had decided to also block 
this request. As had been outlined in Canada's panel request, Canada considered that the 
United  States' application of the Differential Pricing Methodology was inconsistent with its 
obligations under the Anti -Dumping Agreement and the GATT  1994. As a result, Canada reiterated 
its request for the establishment of a WTO panel to examine this matter with the standard terms 
of reference. Furthermore, Canada was requesting that this matter  be referred to the original 
panel that considered the Differential Pricing Methodology in "US – Washing Machines " (DS464 ), in 
accordance with Article  10.4 of the DSU. For Canadian softwood lumber producers and 
communities across Canada, these anti -dumping  duties represented a considerable hardship, 
which only furthered the negative impact of the punitive countervailing measures imposed by the 
United  States on the same products. Canada remained open to continuing its dialogue with the 
United  States in a man ner, which would address Canada's concerns.  
2.3.  The representative of the United  States  said that the United  States  was also disappointed 
that Canada had chosen to move forward with a request for panel establishment on thi s second 
dispute. As the United  States  had explained to Canada, the measures identified in the request 
were fully consistent with U S obligations under the WTO  Agreement. In addition, as had been 
noted at the 27 March  2018 DSB meeting, the United  States had serious concerns with this panel 
request. The panel request raised an item that had not been identified in Canada's request for 
consultations and thus had not been the subject of consultations. The panel request included an 
unwarranted assertion of urgency. Canada's allegation of harm appeare d to be no more urgent WT/DSB/M/411  
 
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  than those alleged by nearly all complainants in WTO dispute settlement. The panel request 
included the baseless argument that the measures at issue were already the subject of a panel 
proceeding. This argument had no basis in fact. The measure at issue was the final determination 
in the anti -dumping investigation of softwood lumber from Canada, and that determination had 
been made on ly in this past November  2017. The United  States was disappointed that Canada had 
not addressed these concerns, but instead had immediately requested a special DSB meeting to 
consider its panel request for a second time.  
2.4.  The representative of Canada  said that, with respect to the assertion by the United  States 
that an item in Canada's panel request had not  been identified in Canada's request for 
consultations, Canada referred to its second intervention under the first Agenda item at the 
present meeting. With respect to the concerns, which had been raised by the United  States 
regarding Article  10.4 of the DS U and Canada's claim of urgency under Article  4.9 of the DSU, 
Canada referred to its comments on these matters at the last regular DSB meeting.  
2.5.  The representative of the United  States  said that with respect to Article  10.4 of the DSU, that 
Article concerns  situations involving "a measure already the subject of a panel proceeding". The 
United  States did not agree with Canada's assertion that the measure identified in Canada's panel 
request was "a measure already the subject of a panel proceeding". Canada's p anel request 
referred to "[t]he US anti -dumping measures applying the Differential Pricing Methodology ('DPM') 
to certain softwood lumber products from Canada". The measure that had been the subject of the 
"US – Washing Machines" panel proceeding, to which  Canada made reference, had been a 
methodology that Korea had challenged "as such", not measures on softwood lumber products. 
Those were different measures. Furthermore, Article  10.4 of the DSU was written in the present 
tense, "If a third party considers that a measure already the subject of a panel proceeding nullifies 
or impairs benefits accruing to it …". Whether or not the measure Canada challenged now was the 
same measure that had been the subject of the "US – Washing Machines " panel proceeding, that 
measure was no longer the subject of the "US – Washing Machines " panel proceeding, as that 
panel proceeding had concluded with the circulation of the Panel Report in March  2016. 
Accordingly, the United  States did not agree that this dispute could be referr ed to the original 
Panel in the "US – Washing Machines " dispute (DS464), as Canada requested. In the absence of 
consensus, the DSB could not refer this dispute to the original Panel in the "US – Washing 
Machines " dispute. If Canada was proposing that the D SB should refer this dispute to the original 
Panel in "US – Washing Machines", the United  States did not agree to such proposal, and thus 
there was no consensus to take that action. While Article  6.1 of the DSU provided for the 
establishment of a panel at this meeting, pursuant to the negative consensus rule, nothing in 
Article  10.4 of the DSU suggested that referral of the dispute to the "original panel" in another 
dispute could be taken by the DSB in the absence of consensus to do so . For these reasons, t he 
United  States could not agree that this dispute should be referred to the Panel in "US – Washing 
Machines", and there was, as a consequence, no consensus for the DSB to take that action.  
2.6.  The representative of Canada  said that, in response to the concern  raised by the 
United  States regarding Article  10.4 of the DSU, Canada reiterated that all it was requesting from 
the DSB was to establish a panel to consider this matter, with standard terms of reference. The 
composition of the panel would be dealt with i n due course.  
2.7.  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.  
2.8.  The representatives of Brazil , China , the European  Union , Japan , Kazakhstan , Korea , the 
Russian  Federation  and Viet Nam reserved  their third -party right to participate in the Panel's 
proceedings.  
3  RUSSIA – ANTI -DUMPING DUTIES ON LI GHT COMMERCIAL VEHIC LES FROM GERMANY 
AND ITALY  
A.  Report of the Appellate Body (WT/DS479/AB/R  and WT/DS479/ AB/R/Add.1 ) and 
Report of the Panel  (WT/DS479/ R and WT/DS479/ R/Add.1) 
3.1.  The Chairperson  drew attention to the communication from the Appellate Body, contained in 
document WT/DS479/10 transmitting the Appellate Body Report in the dispute: " Russia – WT/DSB/M/411  
 
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  Anti-Dumping Duties on Light Commercial Vehicles  from Germany and Italy ", which had been 
circulated on 22 March  2018, in document WT/DS479/AB/R and Add.1. The Appellate Body Report 
and the Panel Report pertaining to this dispute had been circulated as unrestricted documents. She 
noted that a s Members were aware, Article  17.14 of the DSU required that: "An  Appellate Body 
report shall be adopted by the DSB and unconditionally accepted by the parties to the dispute 
unless the DSB decides by consensus not to adopt the Appellate Body report within 30  days 
following its circulation to Members. This adoption procedure is without prejudice to the right of 
Members to e xpress their views on an Appellate Body report".  
3.2.  The representative of the European  Union  said that the EU  thanked the Appellate Body, the 
Panel and the WTO Secretariat for their work on this dispute. The EU welcomed the overall 
outcome of the dispute. The  rulings of the Panel and of the Appellate Body confirmed most of the 
claims, which had been made by the EU, with regard to Russia's anti -dumping measures on light 
commercial vehicles from Germany and Italy. The verdict was clear; Russia's anti -dumping 
measures were inconsistent with the WTO Anti -Dumping Agreement and Article  VI of the 
GATT  1994. Most importantly, the Appellate Body had confirmed the Panel's findings that an 
investigating authority could not exclude, from the domestic industry, a domestic c ompany, which 
had participated in the investigation and produced the products concerned. Furthermore, the 
Appellate Body had confirmed that the price suppression analysis, which had been conducted by 
the Russian investigating authority, had not met WTO sta ndards. In particular, the Appellate Body 
had considered that an investigating authority could not disregard evidence that called into 
question that dumped imports led to significant domestic price suppression. Furthermore, an 
investigating authority had t o ensure that its price suppression methodology assessed price 
increases, "which otherwise would have occurred" in the absence of dumped imports. The EU was 
very pleased, including from a systemic point of view, that the Appellate Body had upheld the EU's  
cross-appeal and had considered that a Panel should examine the validity of a "confidential 
investigation report" and assess whether it had formed part of the contemporaneous written 
record of the investigation before accepting it as evidence. Likewise, th e EU was pleased that the 
Appellate Body had acknowledged the importance of disclosure of essential facts. Overall, the 
Appellate Body had retained the systemic concerns, which had been raised by the EU throughout 
the case. In this regard, the Appellate Bo dy had recognized that, in certain circumstances, 
evidence concerning a related dealer could be pertinent to the evaluation of the state of the 
domestic industry. In light of these clear -cut findings of the Appellate Body and the Panel, t he EU 
expected tha t the Russian  Federation would promptly comply with all recommendations and 
rulings by repealing the anti -dumping measures at issue.  
3.3.  The representative of the Russian  Federation  said that her country thanked the Panel, the 
Appellate Body and the WTO Secret ariat for their work on this dispute. The Russian  Feder ation also 
thanked the European  Union and third parties for their constructive participation in this dispute. 
The dispute had provided an opportunity to develop certain interpretations of the Anti -Dump ing 
Agreement, which the Russian  Federation found to be of systemic importance. While the 
Russian  Federation was disappointed with certain aspects of the findings, it considered that the 
Reports provided useful clarifications of certain provisions of the A nti-Dumping Agreement. The 
Russian  Federation considered some of these findings as a positive contribution to a better 
understanding of the Anti -Dumping Agreement. The Russian  Federation welcomed the fact that the 
Appellate Body had agreed with the Russian  Federation and had found that the Panel had erred in 
its interpretation of Article  6.9 of the Anti -Dumping Agreement by considering that, where 
essential facts were not properly treated as confidential in accordance with Article  6.5 of the said 
Agreement,  this automatically led to an inconsistency with Article  6.9 of the Anti -Dumping 
Agreement. The Appellate Body had made an important conclusion, namely that a panel had to 
always examine whether any disclosure, which had been made, including those through 
non-confidential summaries under Article  6.5.1 of the Anti -Dumping Agreement, met the 
requirements of Article  6.9. The Russian  Federation noted that the EU's claim that the DIMD had 
acted inconsistently with Articles  3.1 and 3.4 of the Anti -Dumping  Agreeme nt was not upheld, 
when it did not consider the inventories data of a related dealer in the investigation report. The 
Appellate Body had upheld the Panel's finding on the mentioned issue and had clarified that an 
investigating authority's assessment of the  state of the domestic industry did not focus on the 
nature of the relationship between related companies, but focused instead on whether the relevant 
economic factors and indices had a bearing on the state of the domestic industry. The 
Russian  Federation also welcomed the Panel's findings with regard to the selection of periods for 
the injury and causation analyses, as well as the Panel's findings with regard to several "other 
factors" in the non -attribution analysis under Article  3.5 of the Anti -Dumping A greement. WT/DSB/M/411  
 
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  Specifically, the Panel had correctly rejected the EU's claim that the DIMD had acted inconsistently 
with Article  3.1 of the Anti -Dumping Agreement by purportedly using "non -equal and 
non-consecutive" periods in the examination of developments in  injury indicators for the domestic 
industry. In the context of the non -attribution analysis, the Panel had found that an investigating 
authority was not required to address every argument and element of evidence, which had been 
raised by interested partie s, and that such a requirement would make the investigating authority's 
task largely impossible.  
3.4.  Some findings, however, also raised serious concerns. The Russian  Federation drew attention 
to the Appellate Body's approach to the permissible ways of disclos ure of essential but confidential 
facts under consideration. The Appellate Body had decided to complete its examination with regard 
to the DIMD's disclosure of the essential facts and had found that the Russian  Federation had 
acted inconsistently with Arti cle 6.9 of the Anti -Dumping Agreement. The Russian  Federation was 
concerned about the fact that the Appellate Body had dedicated only one paragraph to the 
examination of this issue, which was sensitive to any investigating authority, and had stated that 
"information on a change in relation to the preceding period in percentage terms" had been an 
"uninformative" method of disclosure of essential but confidential facts under consideration. Taking 
account of past Panel and the Appellate Body findings, the Russ ian Federation considered such 
conclusion vague, broad and, hence, did not contribute positively to the common understanding of 
possible ways of acting consistently with Article  6.9 of the Anti -Dumping  Agreement when 
disclosing confidential essential facts . The Russian  Federation also took note of the Appellate 
Body's clarifications concerning the definition of the domestic industry. The Appellate Body 
suggested a number of tools to address the inaccuracy and incompleteness of data, including the 
use of fac ts available. The Appellate Body had also clarified that the provisions of Articles  3.1 
and 4.1 of the Anti -Dumping Agreement did not prevent an investigating authority from 
undertaking an initial examination of the information, which had been submitted by  the domestic 
producers, before defining the domestic industry, to the extent that the information, which had 
been submitted or collected was pertinent to defining the domestic industry. While these 
clarifications could provide useful guidance for the purp oses of defining the domestic industry, 
from a practical point of view however, the issue of absence of reliable data from a domestic 
producer and the ability to base an injury determination on "positive evidence" remained 
unresolved. These findings could have serious systemic implications for the investigating 
authorities across the world and their ability to implement Articles  3.1 and 4.1 of the Anti -Dumping 
Agreement. The Russian  Federation intended to comply with the DSB's recommendations and 
rulings.  
3.5.  The representative of the  United  States  said that the United  States  had participated as a third 
party in this dispute, and had sha red the concern of the European  Union in relation  to a number of 
approaches by the Eurasian Economic Commission and the applica tion of anti -dumping duties by 
the Russian  Federation. The U nited States was therefore pleased with the findings of the reports 
before the DSB  at the present meeting that these duties were not consistent with the 
Anti-Dumping Agreement. In particular, the United  States wished to note that, in relation to the 
EU's appeal concerning the disclosure of methodologies, its appreciation for the finding on appeal 
that certain types of calculations may be essential facts under Article  6.9 of the Anti -Dumping 
Agreeme nt. As the United  States had argued, and certain previous reports had found, some 
calculations or uses of data, sometimes described as methodologies, could be necessary for 
participants to understand the basis of the investigating authority's decision and to defend their 
interests. Therefore, it had not been correct to say categorically that, under Article  6.9 of  the 
Anti-Dumping Agreement, methodologies could never qualify as essential facts. The United  States 
therefore welcomed the panel and appellate reports and was  pleased to support their  adoption.  
3.6.  The DSB took note  of the statements and adopted  the Appellate Body Report, contained in 
WT/DS479/AB/R and  Add.1, and the Panel Report, contained in WT/DS479/R and  Add.1 , as 
modified by the Appellate Body  Report.  
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