WORLD TRADE  
ORGANIZATION  RESTRICTED 
WT/DSB/M/321 
7 November 2012 
 (12-6061) 
Dispute Settlement Body 
31 August 2012  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard 
on 31 August 2012 
 
Chairman:  Mr. Shahid Bashir (Pakistan) 
 
Subjects discussed: Page 
 
1.  Surveillance of implementation of recommendations adopted by the DSB ......................... 2  
(a)  United States – Section 211 Omnibus Appropr iations 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 Unite d States ................................................................................... 6 
(c)  United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States ............................................................................................................. ............ 6 
(d)  European Communities – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Union ......................................................................... 6  
(e)  United States – Anti-dumping administrative reviews and other measures related to 
imports of certain orange juice from Brazil:  Status report by the United States ....................... 7  
(f)  United States – Definitive anti-dumping and countervailing duties on certain products 
from China:  Status report by the United States .......................................................................... 8  
(g)  Thailand – Customs and fiscal measures on cigarettes from the Philippines:  Status 
report by Thailand ............................................................................................................ ........... 9 
(h)  United States – Anti-dumping measures on certain shrimp from Viet Nam:  Status 
report by the United States ................................................................................................... ..... 10 
(i)  European Communities – Definitive anti-dum ping measures on certain iron or steel 
fasteners from China:  Status re port by the European Union .................................................... 11  
2.  United States – Certain country of or igin labelling (COOL) requirements ...................... 12  
(a)  Implementation of the recommendations of the DSB ............................................................... 12  
3.  United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB .......................................... 13  
(a)  Statements by the European Union and Japan .......................................................................... 13  
4.  United States – Countervailing measures on certain hot-rolled carbon steel flat 
products from India ........................................................................................................... ..... 14 
(a)  Request for the establishment of a panel by  India .................................................................... 14  
5.  Australia – Certain measures concerning trademarks and other plain packaging 
requirements applicable to toba cco products and packaging ............................................. 14  
(a)  Request for the establishment of a panel by Ukraine ................................................................ 14  WT/DSB/M/321 
Page 2  
 
6.  United States – Countervailing duty measur es on certain products from China ............. 16  
(a)  Request for the establishment of a panel by China ................................................................... 16  
7.  China – Certain measures affectin g electronic payment services....................................... 17  
(a)  Report of the Panel............................................................................................................ ........ 17 
 
 
1. Surveillance of implementation of recommendations adopted by the DSB 
(a) United States – Section 211 Omnibus Appr opriations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.117) 
 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.117) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.92) 
 
(d) European Communities – Measures affecting the approval and marketing of  biotech products:  
Status report by the European Union (WT/DS291/37/Add.55) 
 (e) United States – Anti-dumping administrative revi ews and other measures related to imports of 
certain orange juice from Brazil:  Status report by the United States (WT/DS382/10/Add.8) 
 
(f) United States – Definitive anti-dumping a nd countervailing duties on certain products from 
China:  Status report by the United States (WT/DS379/12/Add.7) 
 (g) Thailand – Customs and fiscal measures on ciga rettes from the Philippines:  Status report by 
Thailand (WT/DS371/15/Add.4) 
 (h) United States – Anti-dumping measures on certain shrimp from Viet Nam:  Status report by 
the United States (WT/DS404/11/Add.3) 
 (i) European Communities – Definitive anti-dumpi ng measures on certain iron or steel fasteners 
from China:  Status report by the European Union (WT/DS397/15/Add.1) 
  1. The Chairman recalled that Article 21.6 of the DSU required that unless the DSB decided 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establis hment of the reasonable 
period of time and shall remain on the DSB's Agenda  until the issue was resolved.  He proposed that 
the nine sub-items under Agenda ite m 1 be considered separately.  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.117) 
2. The Chairman drew attention to document  WT/DS176/11/Add.117, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US Section 211 Om nibus Appropriations Act of 1998. 
3. The representative of the United States said that  his country had provided a status report in 
this dispute on 20 August 2012, in accordance with Article 21.6 of the DSU.  Legislative proposals 
had been introduced in the current 112th Congress to  implement the recommendations and rulings of  WT/DSB/M/321 
 Page 3 
 
 
the DSB.  The US Administration would continue to work on solutions to implement the DSB's recommendations and rulings.  
4. The representative of the European Union said that the EU thanked the United States for its 
most recent status report, and hoped that the US  authorities would very soon take steps towards 
implementing the DSB's ruling and resolve this matter. 
5. The representative of Cuba said that, once agai n, the United States had presented its status 
report which clearly demonstrated that the DSB's re commendations with regard to Section 211, issued 
in 2002, had not yet been implemented.  Not only di d the situation remain unchanged, but at the past 
two DSB meetings, the United States, in an attempt to weaken its obligations and undermine the legal 
reasoning and arguments of the case, had stated th at Section 211 was linked to the uncompensated 
expropriation of assets.  In this regard, Cuba wished to emphasize that the Appellate Body's 
conclusions were clear and precise as to the  incons istency of Section 211 with the national treatment 
and MFN principles of the TRIPS Agreement and made  no reference to the validity or otherwise of 
assets expropriation.  The findings were valid and le gally sufficient for the United States to comply 
with the DSB's recommendations in this dispute.  Cuba noted that the issue of expropriation of assets 
was not under discussion at the present meeting.  Howe ver, Cuba wished to take this opportunity to 
reiterate that the nationalization process, which had taken place in Cuba in the early 1960s, was 
legitimate and consistent with international precep ts.  Compensation agreements had been negotiated 
and adopted with all the countries concerned, excep t for the United States, which had deliberately and 
consciously deprived its citizens of the right to  compensation under Cuban law, due to the economic, 
commercial and financial blocka de imposed on Cuba shortly thereafter.  Therefore, the 
non-compensation of US assets nationalized in  Cuba was not the responsibility of the 
Cuban Government.  Cuba had al ways been willing to negotiate on an equal footing with the 
United States on this issue, but the only response from the United States was to tighten the blockade, 
which prevented trade relations between the two co untries and the possibility of compensation.  In 
1994, when the Bacardí family started its action to seize the Havana Club trade mark, the Cuban 
company, Cubaexport, had already been its legitimat e owner for 18 years.  Cubaexport had not only 
obtained ownership of the trade mark in 1976, in  accordance with the pro cedures established by the 
US Patent and Trade Mark Office (USPTO), it had al so renewed its registration in 1986 and 1996.  It 
had done all this unhindered until Section 211 was adopted, in order to seize the Cuban company's 
rights and to facilitate the commercial fraud by B acardí.  The illegitimacy of Section 211 and the US 
legal and moral obligation to comply with the reco mmendations in this dispute were unquestionable.  
The lack of guarantees for industrial property rights in the United States should be of concern to all 
WTO Members.  Cuba reiterated that it would con tinue to request the United States to take the 
appropriate decisions to grant the licence necessary for the renewal of the Havana Club trade mark to 
its rightful owner.  Nothing exempted the United States from complying with its WTO commitments, and the only viable option for resolving this dispute was to repeal Section 211. 
6. The representative of China said that her country  thanked the United States for its status 
report and statement made at the present meeting.  The prolonged situation of non-compliance in this 
dispute was highly incompatible with the prompt  and effective implementation required under the 
DSU provisions, in particular when the interests of a developing-country Member were affected.  
China urged the United States to implement the DS B's rulings and recommendations without further 
delay. 
7. The representative of Brazil said that his country thanked the United States for its status 
report in this dispute but noted that, once again, the United States reported l ack of progress on this 
issue.  Brazil remained concerned about this  situation of non-compliance with the DSB's 
recommendations and urged the United States to br ing its measures into conformity with WTO 
disciplines.   WT/DSB/M/321 
Page 4  
 
8. The representative of the Plurinational State of Bolivia said that her country had, once again, 
heard the same status report submitted by the United States, in which the United States did not report 
on any progress.  Bolivia noted the lack of political  will to resolve this dispute and reiterated its 
concern about the US failure to comply with the DSB's recommendations and rulings.  Such non-
compliance undermined the credibility and integrity of the multilateral trading system, caused serious 
harm to a developing-country Member and raised sy stemic concerns.  Bolivia urged the United States 
to comply with the DSB's recommendations and rulings  and to take steps to remove the restrictions 
imposed under Section 211.  Bolivia supported the con cerns raised by Cuba in its statement made at 
the present meeting.   
9. The representative of Angola said that his count ry thanked the United States for its status 
report, which showed political will and represented a st ep forward in finding a solution to this dispute.  
However, Angola recalled that the prompt complia nce with the DSB's recommendations and rulings 
was essential to ensure an effective resolution of di sputes to the benefit of all Members.  As Members 
were aware, in August 2001, the Panel Report had concluded that Section 211 was inconsistent with 
Article 42 of the TRIPS Agreement.  In February 2002, the Appellate Body Report had confirmed that 
paragraph A, section 2 and paragra ph B of Section 211 violated the national treatment and the most-
favoured-nation principles under the TRIPS Agreemen t and the Paris Convention and had requested 
the United States to bring Section 211 into conformity with its obligations under the TRIPS Agreement.  The delay in the implementation of th e DSB's decision affected a central element of the 
multilateral trading system, which provided security and predictability for all Members.  It also set a 
negative precedent for other cases.  Angola believed that  concrete signs and actions by the parties in 
this dispute would send a positive signal of respect for WTO rules.   
10. The representative of the Bolivarian Republic of  Venezuela said that her country regretted 
that it had to condemn, once again, what it had b een condemning at every DSB meeting over the past 
years.  Venezuela noted that the most recent status  report submitted by the United States contained the 
same information as the previous reports submitted over the past ten years by the United States.  
Venezuela, once again, supported C uba's statement and requested th e United States to end its policy 
of economic, trade and financial blockade against Cuba.  That policy resulted in the continued 
application of Section 211, the purpose of which wa s and continued to be, to usurp the well-known 
Cuban trade mark, the Havana Club.  Venezuela reca lled that, in February 2002, the DSB had adopted 
the Appellate Body's ruling to repeal Section 211, which was inconsistent w ith the TRIPS Agreement 
and the Paris Convention.  Venezuela was disappoi nted with the non-compliance and lack of action 
by the United States.  Venezuela, therefore, ur ged the United States to provide further details 
regarding the work being done in Congress, so as to keep Members informed and to comply 
immediately with the recommendations of the Appe llate Body, which was the ultimate authority in 
the dispute settlement process.  Venezuela was con cerned that the US non-compliance affected Cuba, 
undermined the credibility of the DSB and had a nega tive impact on the multilateral trading system.  
Venezuela reiterated its request for the Un ited States to respect the DSB's decisions. 
11. The representative of Argentina said that his c ountry thanked the United States for its status 
report and statement made at the present meeting.  However, Argentina regretted that the 
United States had, once again, reported non-complia nce.  The non-compliance was inconsistent with 
the principle of prompt and effective implementati on stipulated in the DSU provisions, in particular 
since the interests of a developing country were  affected.  As it had done on previous occasions, 
Argentina wished to stress that  when Members with relatively gr eater economic weight failed to 
comply with the DSB's rulings, to the detriment of the interests of developing-country Members, this 
undermined the credibility of the multilateral tradin g system, jeopardized its viability and affected 
trade interests.  Argentina, therefore, supported Cuba and joined previous speakers in urging both 
parties to the dispute, in particular the United Stat es, to take all necessary measures in order to be able 
to remove this matter from the DSB's Agenda.    WT/DSB/M/321 
 Page 5 
 
 
12. The representative of Mexico said that Article 21.1 of the DSU required prompt compliance 
with the DSB's recommendations and rulings in order to ensure the effective resolution of disputes to 
the benefit of all Members.  In that respect, Mexi co urged the parties to the dispute to adopt the 
necessary measures so as to comply with the DSB's recommendations and rulings.  
13. The representative of the Dominican Republic said that her country thanked the United States 
for its status report regarding its progress in th e implementation of the DSB's recommendations and 
rulings concerning the inconsistenc y of Section 211 with WTO rules, as set out in Article 42 of the 
TRIPS Agreement.  The Dominican Republic, once ag ain, urged the United States to expedite its 
domestic procedures so as to comply with the DSB's recommendations and rulings.  The lack of 
compliance over a long period of time in this dispute undermined the credibility of the DSB.   
14. The representative of Nicaragua said that, once again, her country supported Cuba's concerns 
about Section 211, which adversely affected the legitimate rights of Cuban owners of the Havana 
Club Rum trademark.  Like at previous meetings, Nicaragua, once again, noted that the US status report was identical to previous reports submitted by the United States over the past ten years.  The United States had, for ten years, been telling dele gations that it was working on the implementation of 
the DSB's recommendations in this dispute.  Nicarag ua was concerned that the US failure to comply 
with its obligations had become a routine feature of DSB meetings.  This undermined the credibility 
of the DSB and the multilateral trading system and could set a negative precedent for other Members, 
in particular developing countries.  Thus, Nicaragua  urged the United States to bring its legislation 
into conformity with the DSB's rulings and recommendations and to repeal Section 211. 
15. The representative of Viet Nam said that his co untry thanked the United States for its status 
report and statement made at the present meeting.  Once again, Viet Nam was concerned about the US 
lack of progress in implementing the DSB's recomme ndations and rulings in this case.  Viet Nam 
urged the United States to implement the DSB' s recommendations without further delay.   
16. The representative of Ecuador said that his c ountry supported the statement made by Cuba.  
Ecuador stressed, once again, that Article 21 of the DSU referred to prompt compliance with the 
DSB's recommendations and rulings, in particular if  the interests of a developing-country Member 
were affected.  Ecuador hoped that the United States  would step up its efforts in order to ensure 
immediate compliance with the DSB's recommendations and rulings by repealing Section 211. 
17. The representative of Chile said that his country supported the statement made by Cuba.  
Chile noted that this dispute was of systemic interest to many Members as it concerned compliance 
with, and respect for, WTO rules.  The lack of compliance by WTO Members affected the functioning 
of the Organization.  Chile, as a small country, had a particular interest in strengthening Members' 
compliance with WTO rules. 
18. The representative of the United States said that  there had been some questions about the 
activities being undertaken in the United States to address the recommendations and rulings of the 
DSB.  There were bills pending in the current C ongress that would address the WTO findings in this 
matter in different ways.  For example, S. 603 and HR 1166 would modify Section 211 to address the 
DSB's findings specifically.  Other bills, such as HR 1887 and 1888, would repeal Section 211.  
19. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. WT/DSB/M/321 
Page 6  
 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.117) 
20. The Chairman drew attention to document  WT/DS184/15/Add.117, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
21. The representative of the United States said that  his country had provided a status report in 
this dispute on 20 August 2012, in accordance with Article 21.6 of the DSU.  As of November 2002, 
the US authorities 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 inv estigation at issue in 
this dispute.  With respect to the recommendations and rulings of the DSB that had not already been 
addressed by the US authorities, the US Administ ration would work with the US Congress with 
respect to appropriate statutory measures that would resolve this matter.  
22. The representative of Japan said that his country  thanked the United States for, and took note 
of, its statement and status report.  Once again, Japan called on the United States to fully implement 
the DSB's recommendations in this long-s tanding dispute without further delay. 
23. 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.92) 
24. The Chairman drew attention to document WT/D S160/24/Add.92, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act. 
25. The representative of the United States said that  his country had provided a status report in 
this dispute on 20 August 2012, in accordance with Article 21.6 of the DSU.  The US Administration 
would continue to confer with the European Uni on, and to work closely with the US Congress, in 
order to reach a mutually satisfactory resolution of this matter.  
26. The representative of the European Union said that the EU noted and thanked the 
United States for its status report.  As it had stated  many times in the past, the EU wished to resolve 
this case as soon as possible. 
27. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.55) 
28. The Chairman drew attention to document WT/D S291/37/Add.55, which contained the status 
report by the European Union on progress in the implementation of the DSB's recommendations in 
the case concerning its measures affecting the approval and marketing of biotech products. 
29. The representative of the European Union said th at the EU, once again, wished to express its 
hope that it would continue on the constructive pa th of dialogue with the United States.  Three 
technical meetings had taken place since 2011.  T hose meetings had offere d a good opportunity to 
discuss directly issues of concern to both sides an d to follow up closely on developments in the  WT/DSB/M/321 
 Page 7 
 
 
biotech field.  In 2012, the European Commission had already authorized four more GMOs1 and had 
renewed the authorization of a fifth one.2  Three of those decisions3 had been adopted only six months 
after the relevant EFSA opinions ha d been published.  In addition,  EFSA had adopted an opinion on 
maize MIR 162, which had been published on 21 J une 2012.  EFSA had presented the opinion to 
member States on 16 July 2012.  It was foreseen that a proposal would be presented to the regulatory 
Committee on 10 September 2012.  Regarding the concerns expressed by the United States on the 
back-log of approvals, the EU, once again, recalled that the EU approval system was not covered by 
the DSB's recommendations and rulings.  The EU u nderlined that the GMO regulatory regime was 
working normally as evidenced by the approval decisions just mentioned.  The functioning of the GMO regime should not be rigidly assessed purely quan titatively and in the abstract, in terms of the 
number of authorizations per year, since this was dependent on various  product and case-specific 
elements and in particular on the quality of appli cations and on the time needed by applicants to 
answer requests from EFSA on additional scientific information. 
30. The representative of the United States said that hi s country would like to thank the EU for its 
status report and its statement made at the present me eting.  The United States said that it continued to 
remain greatly concerned about the effects of EU delays on US exports of  agricultural commodities 
and food products.  These delays had resulted in restrictions on the importation of US agricultural 
products, including corn and corn products from the current US growing season.  Even after the EU 
had approved a biotech product, individual EU memb er States had adopted their own product-specific 
bans.  An important example was the biotech va riety of corn known as MON810.  The DSB had 
found in this dispute that EU member State bans  on MON810 were inconsistent with the EU's 
obligations under the SPS Agreement.4  Despite this finding, additional EU member States had 
adopted bans on MON810.  The result had been the loss of market access in  additional EU member 
States, including France and Germany.  At the May 2012 meeting of the DSB, the United States had noted that the EU's scientific authority had published a scientific opinion finding that France had provided no scientific evidence in s upport of its ban.  The United Stat es regretted that despite the EU's 
own findings, the bans on MON810 adopted by Fran ce and other EU member States remained in 
place.  The United States urged the EU to take steps to address delays in appr ovals, and to take action 
to make EU biotech approvals effective in all EU member States.  
31. The representative of the European Union said that the EU wished to underline that this 
measure had not been addressed in the Panel Repor t.  MON810 was a product currently under renewal 
procedure under the GMO legislation.  The EU was reflecting on the most appropriate course of 
action within that framework. 
32. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(e) United States – Anti-dumping administrative review s and other measures related to imports of 
certain orange juice from Brazil:  Status report by the United States (WT/DS382/10/Add.8) 
33. The Chairman drew attention to document WT /DS382/10/Add.8, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US anti-dumping administrative reviews and other measures related to imports of certain orange juice from Brazil. 
                                                      
1 A5547-127 soybean, 356043 soybean, MON87701 soybean, MON87701 x MON 89788 soybean. 
2 40-3-2 soybean. 
3 Authorization decision for 356043 and MON87701 soybeans, MON 87701 x MON 89788 soybean. 
4 Panel Report, European Communities – Measures Affecting the Approval and Marketing of Biotech 
Products, WT/DS291/R, adopted 21 November 2006, paras. 8.24, 8.28. WT/DSB/M/321 
Page 8  
 
34. The representative of the United States said that  his country had provided a status report in 
this dispute on 20 August 2012.  Pursuant to th e sequencing agreement between Brazil and the 
United States5, the United States said that it was ready to engage with Brazil should it have any 
further questions regarding this matter. 
35. The representative of Brazil said that his country thanked the United States for its status 
report.  Brazil was following closely the implemen tation of the final rule published by the US 
Department of Commerce, which had modified the ca lculation of dumping margins in reviews.  Brazil 
would consult with the United States with a vi ew to achieving a solution to this dispute. 
36. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(f) United States – Definitive anti-dumping and countervailing duties on certain products from 
China:  Status report by the United States (WT/DS379/12/Add.7) 
37. The Chairman drew attention to document WT /DS379/12/Add.7, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US definitive anti-dumping and count ervailing duties on certain products from China. 
38. The representative of the United States said that  his country had provided a status report in 
this dispute on 20 August 2012, in accordance with Artic le 21.6 of the DSU.  As noted in that status 
report, on 31 July 2012, the US Department of  Commerce ("Commerce") had issued to interested 
parties final determinations with respect to the issues in this dispute in proceedings undertaken 
pursuant to Section 129(b) of the Uruguay Round Agreements Act.  On 21 August 2012, the US Trade Representative had directed the Depart ment of Commerce to implement its final 
determinations.  On 30 August 2012, a notice ha d been published in the US Federal Register 
announcing the implementation of Commerce's final de terminations, effective 21 August 2012.  That 
notice could be found at 77 FR 52683.  These steps completed the process under US law for implementing the recommendations and rulings adopt ed by the DSB.  As a result of the actions 
described in the US status report and at the present meeting, the United States had brought the 
measures at issue in this dispute into full complia nce with the DSB's recommendations and rulings.   
39. The representative of China said that her country wished to express its concerns about the US 
implementation of the DSB's rulings and recommenda tions in this dispute.  On 25 March 2011, the 
DSB had adopted the Appellate Body Report and th e Panel Report, as modified by the Appellate 
Body.  The reasonable period of time for implemen tation of the DSB's rulings and recommendations 
in this dispute was 11 months.  However, the Unite d States had not started issuing the questionnaires 
until five months after the adoption of the Reports and the public body questio nnaires had been issued 
eight months after the adoption of the Reports in this dispute.  The final determinations of the 
Section 129 investigation had been issued on 31 July 2012, more than five months after the originally 
agreed reasonable period of time.  Thus, China wish ed to express its strong objection to the delayed 
implementation by the United States in this dispute.   
40. Aside from the procedural non-compliance issu e, China was concerned as to whether the 
United States implemented the DSB's substantive rulings and recommendations in good faith.  As 
could be seen from the final determinations, some  of the revised countervailing subsidy rates for 
exporters had increased significantly.  For instance, the countervailing subsidy ra te for one exporter in 
the Laminated Woven Sacks investigation had been raised by 182 per cent as compared to the rate it 
had received in the original investigation.  The drastic increase had not been incidental to the 
particular situation concerning the exporter being investigated.  Rather, it had evinced a systematic 
approach that the United States had undertaken to get around the implementation of the DSB's rulings 
                                                      
5 WT/DS382/11.  WT/DSB/M/321 
 Page 9 
 
 
and recommendations in the DS379 dispute, in  good faith.  China regretted to see that the 
United States had not only failed to implement th e DSB's rulings and recommendations pertaining to 
this dispute within the agreed reasonable period of  time, but that it had also interpreted and applied 
those rulings and recommendations in a worrisome manner.  The US implementation action set a bad 
example for other Members and would have a nega tive impact on the dispute settlement system.  
Therefore, China reserved the right to take any n ecessary actions to address its concerns about the US 
implementation in this dispute in due course. 
41. The representative of the United States said that  his country wished to make two points in 
response to China's concerns.  First, with regard to  the issuance of questionnai res, the issues in this 
dispute were complex and involved several novel matte rs.  The United States needed to consider the 
findings and recommendations of the DSB carefully in order to bring the challenged measures into 
compliance with them.  Accordingly, the US Depa rtment of Commerce, in conjuncture with other 
agencies of the US Government, and in consu ltation with the US Congress, had taken the time 
necessary to consider the issues before preparing and issuing questionnaires.  The United States noted 
that Chinese respondents, including the Government of  China, also appeared to have recognized the 
complexity of the issues, as they had requested , on numerous occasions, additional time to provide 
complete responses to Commerce's questionnaires.  As  it had indicated previously, the United States 
and China had agreed to extend the reasonable peri od of time for implementation, due in significant 
part to China's request for more time to res pond to Commerce's questionnaires.  China had also 
expressed some concerns in its statement made at the present meeting about US implementation.  As 
stated previously, the actions descr ibed in the US status reports a nd in its statement at the present 
meeting had resulted in full compliance with the DSB's recommendations and rulings.  The 
United States said that it continued to stand ready to  discuss with China any questions or concerns it 
may have about the actions taken by the United St ates, and the United States looked forward to doing 
so. 
42. The representative of China said th at, with regard to the issuance of questionnaires, one could 
claim that every case involved complex issues.  However, the implementation of the DSB's 
recommendations and rulings could not be waived or  exempted by merely claiming that the issues 
involved were complicated.  Every Member should implement the DSB's recommendations and rulings in good faith.  China was also ready to c ontinue to discuss with the United States the issues 
involved in the implementation in this dispute.  China understood that the United States had claimed 
that it had fully complied with the DSB's recommenda tions and rulings in this dispute, but China did 
not agree with the US claim. 
43. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(g) Thailand – Customs and fiscal measures on cigare ttes from the Philippines:  Status report by 
Thailand (WT/DS371/15/Add.4) 
44. The Chairman drew attention to document WT /DS371/15/Add.4, which contained the status 
report by Thailand on progress in the implementati on of the DSB's recommendations in the case 
concerning Thailand's customs and fiscal m easures on cigarettes from the Philippines. 
45. The representative of Thailand said that her count ry wished to refer Members to its most 
recent status report in this dispute, which had b een circulated to Members on 21 August 2012.  After 
the informal consultations in Bangkok between  the Philippines and Thailand regarding the 
implementation of the DSB's recommendations and ru lings, the parties had continuously engaged in 
bilateral exchanges and discussions with a view to achieving a mutually satisf actory solution to this 
dispute.  The discussions were continuing.  Tha iland welcomed those discussions and considered 
them to be a valuable means of clarifying its inte ntions with respect to the implementation of the 
DSB's recommendations as well as clarifying some of the more technical aspects of the regulations WT/DSB/M/321 
Page 10  
 
being adopted by Thailand as part of its implemen tation in this dispute.  While it understood the 
Philippines' concerns about the co mpletion of implementation, Thaila nd considered this process to be 
worth pursuing in order to achieve a final resoluti on of the outstanding issues in this dispute.  
Therefore, Thailand looked forward to further discu ssions of technical details with the Philippines 
regarding implementation in this dispute. 
46. The representative of the Philippines said that his country thanked Thailand for its fifth status 
report and for its statement made at the present meeting.  The Philippines welcomed the steps 
Thailand had taken towards complianc e, but regretted that a number of issues remained unresolved, 
more than three months after the end of the reas onable period of time.  In the spirit of mutual 
cooperation, the Philippines had sought to address th ese outstanding matters on a bilateral level, short 
of a return to formal dispute settlement proceedi ngs.  Whether the dialogue had been fruitful would 
become clear in the coming weeks, when the Philippines would assess as to whether Thailand had 
followed through on specific actions committed fo r specific time-frames agreed during bilateral 
discussions.  The importance of the next weeks in de termining the next steps in the dispute could not 
be overstated.  The Philippines had been patient a nd had exercised restraint well beyond the end of the 
reasonable period of time.  Nonetheless, the Philippin es had been instructed to communicate, in clear 
and concise terms, that its patience and restraint w ould end if the milestones addressed in the bilateral 
discussions were to pass without resolving the outst anding issues.  While the Philippines reserved all 
its rights, it stood ready, between now and then, to do anything it could to assi st Thailand in achieving 
full compliance. 
47. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(h) United States – Anti-dumping measures on certain shrimp from Viet Nam:  Status report by 
the United States (WT/DS404/11/Add.3) 
48. The Chairman drew attention to document WT /DS404/11/Add.3, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US anti-dumping measures on certain shrimp from Viet Nam. 
49. The representative of the United States said that  his country had provided a status report in 
this dispute on 20 August 2012, in accordance with Article 21.6 of the DSU.  In October 2011, the 
United States and Viet Nam had jointly notified the DSB of their agreement that the reasonable period 
of time for the United States to implement the r ecommendations and rulings of the DSB would end on 
2 July 2012.6  In February 2012, the US Department of  Commerce had published a modification to its 
procedures in order to implement DSB recommendations  and rulings regarding the use of "zeroing" in 
anti-dumping reviews.  That modification addressed certain findings in this dispute.  On 28 June 2012, the US Trade Representative had re quested, 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 th e recommendations and rulings of the DSB. 
50. The representative of Viet Nam said that his co untry thanked the United States for its status 
report.  Viet Nam reiterated that Article 21 of th e DSU stipulated that prompt compliance with the 
DSB's recommendations and rulings was essential in orde r to ensure effective resolution of disputes to 
the benefit of all Members.  Viet Nam would consul t with the United States with a view to achieving 
an appropriate solution to this matter. 
51. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
                                                      
6 WT/DS404/10.  WT/DSB/M/321 
 Page 11 
 
 
(i) European Communities – Definitive anti-dumping measures on certain iron or steel fasteners 
from China:  Status report by the European Union (WT/DS397/15/Add.1) 
52. The Chairman drew attention to document WT /DS397/15/Add.1, which contained the status 
report by the European Union on progress in the implementation of the DSB's recommendations in 
the case concerning EU anti-dumping measures on certain iron or steel fasteners from China. 
53. The representative of the European Uni on said that the EU was working on the 
implementation of the DSB's recommendations and rulings  in this dispute and was making an effort to 
complete the implementation before the expiry  of the agreed reasonable period of time on 
12 October 2012.  First, the provision of the EU Basic Anti-Dumping Regulation that had been found 
to be "as such" incompatible with the Anti-Dump ing Agreement was being amended in a manner that 
fully respected the EU's WTO obligations.  The legi slative procedure was expected to be concluded 
with the publication of the amendment in the Official Journal of the EU in early September 2012.  Second, a review had been initiated in order to  implement the DSB's recommendations and rulings 
related to the specific EU anti-dumping measures on certain iron or steel fasteners originating in China.  The relevant procedures were ongoing and were  expected to be finalized in the near future.  
Finally, the EU wished to note that, regardless of the clear limits of the EU's implementation 
obligations arising from this dispute, the EU ha d also offered exporting producers in non-market 
economy countries, including China, the possibility to request a review of other anti-dumping measures currently in force with respect to any ap plication of Article 9(5) of the EU Basic Anti-
Dumping Regulation in those measures allegedly in  contradiction with the reasoning set out in the 
Appellate Body Report.  The EU hoped that this  initiative would inspire other WTO Members in 
similar circumstances. 
54. The representative of China said that her country thanked the EU for its status report and 
noted that the EU had made efforts to implement the DSB's rulings and recommendations prior to the 
expiry of the reasonable period of time.  However,  China was of the view that the EU had not yet 
fully and properly implemented the DSB's rulings  and recommendations.  With respect to the 
proposed amendment of Article 9(5) of the Europ ean Union's Basic Anti-Dumping Regulation, China 
believed that, among others, the criterion of the "ec onomic structure" of the supplying country that 
had been included in the proposed amendment to  Article 9(5) was not appropriate and was 
inconsistent with the Appellate Body's findings.  Concerns about this had be en resolved bilaterally 
with the EU and China would not go into detail about  the interpretation of the draft regulation at the 
present meeting.  China was also concerned about the R548 review, which the EU had just mentioned.  
The EU had subjected the granting of individua l treatment to exporting producers to certain 
conditions, it had failed to fully disclose normal value product type and to ensure fair price 
comparison, it had declined to redefine the domestic  industry, and therefore it had failed to comply 
with the DSB's recommendations and rulings.  Chin a hoped that the EU would make adequate and 
substantive efforts so as to fully implem ent the DSB's recommendations and rulings.  
55. The representative of the European Union said that the Amendment was in full compliance 
with the Appellate Body Report.  The Amendment removed completely the individual treatment test 
that had been found to be incompatible with the Anti-Dumping Agreement.  It also provided that, in 
certain situations, suppliers that were  legally distinct from other supplie rs or that were legally distinct 
from the State may, nevertheless, be considered as a single entity for the purpose of specifying the 
duty.  This simply reproduced the findings of the Ap pellate Body itself (in particular paragraph 367).  
In particular, the factors that may be taken into account by the investigating authority while making 
such a determination were taken verbatim from the Appellate Body  Report (paragraphs 376 and 367). 
56. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. WT/DSB/M/321 
Page 12  
 
2. United States – Certain country of origin labelling (COOL) requirements 
(a) Implementation of the recommendations of the DSB 
57. The Chairman recalled that, in accordance with the DSU provisions, the DSB was required to 
keep under surveillance the implementation of recomme ndations and rulings of the DSB, in order to 
ensure effective resolution of disputes to the benefit of all Members.  In that respect, Article 21.3 of 
the DSU provided that the Member concerned shall in form the DSB, within 30 days after the date of 
adoption of the panel or Appellate Body report, of its intentions in respect of implementation of the 
recommendations and rulings of the DSB.  He recall ed that, at its meeting on 23 July 2012, the DSB 
had adopted the Appellate Body Reports and the Pa nel Reports, as modified by the Appellate Body 
Reports, pertaining to the disputes on:  "United St ates – Certain Country of Origin Labelling (COOL) 
Requirements".  The 30-day time-period in th is case had expired on 22 August 2012 and, on 
21 August 2012, the United States had informed the DS B in writing of its intentions in respect of 
implementation of the DSB's recommendations.  The relevant communication was contained in 
document WT/DS384/19 – WT/DS386/18.  He invited th e representative of the United States to make 
a statement. 
58. The representative of the United States said that , on 23 July 2012, the DSB had adopted the 
Reports of the Panel and the Appellate Body in th e disputes:  "United States – Certain Country of 
Origin Labelling (COOL) Requirements" (DS384;  DS386).  On 21 August 2012, the United States had informed the DSB by letter that it intended to  implement the recommendations and rulings of the 
DSB in a manner that respected US WTO obligations and had begun to evaluate its options for doing 
so.  That letter had been circulated to the DS B (WT/DS384/19 – WT/DS386/18) .  Canada and Mexico 
had agreed with the United States that it was appropriate  to inform the DSB of US intentions by letter, 
rather than at a special meeting, in light of the fact that the 30 day period of time described in 
Article 21.3 of the DSU had expired before the ne xt regularly scheduled DSB meeting.  As the 
United States had noted in its letter, it would need  a reasonable period of time in which to implement 
the DSB's recommendations and rulings, and it hoped to  reach agreement with Canada and Mexico in 
accordance with Article 21.3(b) of the DSU.  
59. The representative of Canada said that her country thanked the United States for stating its 
intention to comply with the DSB's recommendations  and rulings.  Canada recalled that the COOL 
requirements had and continued to have a signifi cant adverse impact on the competitive position of 
Canadian cattle and hogs in the United States.  Canada had taken note of the statement by the 
United States that it would need a reasonable period of time to bring itself into compliance with the 
DSB's recommendations and rulings.  Canada and the United States had initiated discussions with a 
view to agreeing on a reasonable period of time. 
60. The representative of Mexico said that his country thanked the United States for its letter 
dated 21 August 2012 and for its statement made at th e present meeting.  Mexico  was ready to discuss 
the reasonable period of time for the United States to comply with the DSB's recommendations and 
rulings, taking into account the nature of the measu res that the United States would seek to adopt in 
order to comply in a timely manner. 
61. The DSB took note of the statements, and of the information provided by the United States 
regarding its intentions in respect of implementation of the DSB's recommendations.  WT/DSB/M/321 
 Page 13 
 
 
3. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Union and Japan 
62. The Chairman said that this item was on the Age nda of the present meeting at the request of 
the European Union and Japan.  He then i nvited the respective representatives to speak. 
63. The representative of the European Union said th at, as it had done many times before, the EU 
requested the United States to stop transferri ng anti-dumping and countervailing duties to the US 
industry.  Every disbursement that still took place was clearly an act of non-compliance with the DSB's recommendations and rulings.  Once again, the EU renewed its call on the United States to 
abide by its clear obligation under Article 21.6 of th e DSU to submit status reports pertaining to this 
dispute. 
64. The representative of Japan said that the CDS OA continued to be operational, as FY 2012 
Preliminary CDSOA Amount Available announced by the US Customs and Border Protection 
showed.  Under those circumstances, Japan had decided to continue, as from 1 September 2011, its 
suspension of concessions and related obligations  under the GATT 1994 on certain US imports.  
Details of that decision were provided in documen t WT/DS217/62.  Japan urged the United States to 
stop the illegal distributions and repeal the CDSOA, not  just in form but in su bstance, so as to resolve 
this dispute.  According to Article 21.6 of the DSU, the United States was under obligation to provide 
the DSB with a status report in this dispute. 
65. The representative of India said that his country thanked the EU and Japan for inscribing this 
item on the DSB's Agenda.  India shared their concerns and supported their views. 
66. The representative of Brazil said that his country  thanked the EU and Japan for keeping this 
item on the DSB's Agenda.  As it had expressed in previous meetings, Brazil was of the view that the 
United States was under obligation to submit status re ports in this dispute until such time as no more 
disbursements were made pursuant to the Byrd Amen dment.  Only then woul d the issue be "resolved" 
within the meaning of the DSU and the United States  would be released from its obligation to provide 
status reports pertaining to this dispute. 
67. The representative of Canada said that his country  wished to refer to its  previous statements 
made under this Agenda item.  Canada's position on this matter had not changed.   
68. The representative of Thailand said that her count ry thanked Japan and the EU for continuing 
to bring this item before the DSB.  Thailand re ferred to its previous statement made under this 
Agenda item.  Thailand's position on this matter had not changed.    
69. The representative of the United States said that, as his country had 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 Du mping 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 reca lled, furthermore, that Members had acknowledged 
during previous DSB meetings that the 2006 Defic it 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 explained at  previous DSB meetings, the United States failed to 
see what purpose would be served by further submissi on of status reports repeating the progress the 
United States had made in the implementation of the DSB's recommendations and rulings.  Finally, 
Japan referred to its renewed reta liation measures;  the United States would be reviewing carefully the  WT/DSB/M/321 
Page 14  
 
measures taken by Japan.  As the United States had observed previously, the DSB had only authorized 
the suspension of concessions or other obligations  as provided in the Award of the Arbitrator.  
70. The DSB took note of the statements. 
4. United States – Countervailing measures on certai n hot-rolled carbon steel flat products 
from India  
(a) Request for the establishment of a panel by India (WT/DS436/3) 
71. The Chairman recalled that the DSB had consider ed this matter at its meeting on 23 July 2012 
and had agreed to revert to it.  He drew atte ntion to the communication from India contained in 
document WT/DS436/3, and invited the representative of India to speak. 
72. The representative of India said that, at the 23 July 2012 DSB meeting, his country had 
expressed its concerns about the countervailing duty investigation by the United States and the 
imposition of duty on certain hot-rolled carbon steel flat  products from India.  India considered that 
the measures taken by the United States were in consistent with its obligations under several 
provisions of the SCM Agreement and the GATT 1994.  India acknowledged that every WTO Member had a right to levy countervailing duties, but that right could be exercised only within the 
framework of the SCM Agreement and the GATT 1994.  India did not agree with the US allegation 
that India's panel request included provisions of  US law about which no consultations had been 
requested or held.  India asserted that its pa nel request was fully consistent with the DSU 
requirements.  Therefore, India respectfully request ed that the DSB establish a panel to examine the 
matter set out in its panel request w ith standard terms of reference. 
73. The representative of the United States said that , as his country had noted at the July 2012 
DSB meeting, Members retained the right to levy countervailing duties to offset subsidies bestowed 
by another Member.  As the United States and other Members had found, India – at both the state and national levels – provided numerous subsidies to  its domestic steel industry.  And, as the 
United States and other Members had found, those s ubsidies caused material injury to manufacturers 
attempting to compete with India's steel industry.  In light of India's comments at the present meeting, 
the United States also recalled its concern with I ndia's panel request, which appeared to include 
provisions of US law about which consultations ha d neither been requested nor held.  For these 
reasons, the United States remained disappointed th at India had decided to request a panel on this 
matter.  The United States stood ready to defend th e use of WTO-consistent measures to countervail 
India's injurious use of subsidies. 
74. The DSB took note of the statements and agreed  to establish a panel in accordance with the 
provisions of Article 6 of the DSU w ith standard terms of reference. 
75. The representatives of Australia, Canada, China,  the European Union, Saudi Arabia and 
Turkey reserved their third-party rights to  participate in the Panel's proceedings. 
5. Australia – Certain measures concerning trademarks and other plain packaging 
requirements applicable to to bacco products and packaging 
(a) Request for the establishment of a panel by Ukraine (WT/DS434/11) 
76. The Chairman drew attention to the comm unication from Ukraine contained in document 
WT/DS434/11, and invited the repr esentative of Ukraine to speak. 
77. The representative of Ukraine said that, on 14 August 2012, her country had submitted its 
request for the establishment of a panel in resp ect of Australia's plain packaging requirements  WT/DSB/M/321 
 Page 15 
 
 
applicable to tobacco products and their packagi ng.  The measures imposed severe restrictions on the 
use of validly registered trademarks and impo sed a significant number of product and packaging 
requirements that would standardize tobacco product s and their packages in Australia.  Australia's 
unprecedented measures denied the essence of the rights that were protected under the TRIPS 
Agreement and eroded the protection of intellectual property rights, thus raising systemic concerns 
that directly affected Ukraine as a producer and ex porter of tobacco products and of other products 
that relied on trademarks for entering and competing in foreign markets.  Following the notification of 
the Tobacco Plain Packaging Bill to the WTO in Ap ril 2011, Ukraine had, on several occasions and in 
various international and domestic  fora, expressed its serious concerns about these measures, which 
were inconsistent with a number of Australia's WTO obligations.  In that cont ext, Ukraine and several 
other WTO Members had posed specific questions to  Australia in an attempt to obtain additional 
information from Australia concerning the basis for these measures and their alleged consistency with 
Australia's obligations.  Regrettably, Australia had never directly responded to the many constructive 
questions posed by Ukraine.   
78. On 13 March 2012, Ukraine had requested cons ultations with Australia on this matter and 
had, in good faith, engaged in tho se consultations with Australia with a view to reaching a mutually 
satisfactory solution.  Unfortunately, the consultatio ns had not been fruitful and had failed to resolve 
the dispute.  Thus, Ukraine felt obliged to request th e establishment of a panel to resolve this dispute.  
As described in more detail in its  panel request, Ukraine considered that Australia's plain packaging 
requirements, as identified in the request, violated  a number of Australia's obligations under the 
TRIPS Agreement, the TBT Agreement and the GATT 1994.  In particular, Ukraine considered that 
the plain packaging measures were inconsistent w ith the TRIPS Agreement and the Paris Convention 
because the measures failed to give  effect to the trademark holder' s legitimate intellectual property 
rights as protected under those agreements.  In add ition, Ukraine considered that the measures were 
clearly more trade restrictive than necessary to achie ve the stated health objectives and thus violated 
Article 2.2 of the TBT Agreement as an unnecessary ob stacle to trade.  Finally, Ukraine considered 
that the plain packaging measures adversely aff ected competitive opportunities for imported products 
and foreign trademark right holders  and thus failed to respect the national treatment requirement set 
out in several provisions of the WTO Agreements.  Accordingly, Ukraine requested that the DSB 
establish a panel to examine the matter set out in  its request for establishment of a panel, with 
standard terms of reference. 
79. The representative of Australia said that all WTO Members had to confront the global 
tobacco epidemic.  According to the World Health  Organization, tobacco killed nearly six million 
people a year and was the only legal product that kill ed up to half of those who used it as intended.  
Approximately 15,000 Australians died every year  from smoking.  Smoking was one of the leading 
preventable causes of death in Australia and cost  the Australian society and economy billions of 
dollars each year.  That was why the Australian Government had decided to introduce tobacco plain 
packaging as part of a balanced package of meas ures that would contribute to the reduction of 
smoking rates in Australia.  Tobacco plain packag ing was a sound, well-considered measure designed 
to achieve a legitimate objective, the protection of  public health.  As a matter of key systemic 
importance, the WTO Agreements recognized the fundamental right of Members to implement 
measures necessary for the achievement of that objec tive.  The tobacco plain packaging measure was 
endorsed by leading Australian and international public  health experts as well as the World Health 
Organization and was supported by extensive research  reports and studies.  Australia had provided a 
substantial amount of information about the measure  in relevant WTO fora and had undertaken an 
extensive domestic consultation process.  Where a ppropriate, adjustments had been made to the 
measure in response to concerns raised during those consultations.   
80. The High Court of Australia had recently dismis sed a challenge to th e constitutional validity 
of the tobacco plain packaging legislation.  Both  Australia and Ukraine were parties to the WHO 
Framework Convention on Tobacco Control.  Plain packaging was recommended in the guidelines for 
implementation of Articles 11 and 13 of the Conven tion.  Both Australia and Ukraine had endorsed WT/DSB/M/321 
Page 16  
 
those Guidelines and Ukraine w as a member of the Working Group that had developed the 
Guidelines.  Australia recognized th at Ukraine also confronted the significant public health challenge 
of tobacco use and acknowledged the important step s that Ukraine had taken recently to implement 
tobacco control measures.  Australia was, therefor e, surprised at Ukraine's decision to challenge 
Australia's measure.  The surpri se was compounded by the fact that Ukraine did not export tobacco 
products to Australia.  Australia's measure would not  affect Ukraine's tobacco exports.  Australia had 
held consultations with Ukraine on 12 April 2012.  However, Australia noted that Ukraine's panel 
request included claims that had not been in cluded in Ukraine's 13 March 2012 request for 
consultations.  The tobacco plain packaging legisla tion did not undermine the protection afforded to 
trademarks as required under the TRIPS Agreement.  Nor was the measure more trade restrictive than 
necessary to fulfil its legitimate public health obj ective.  The tobacco plain packaging measure was 
origin neutral on its face and even-handed in its app lication.  It was clearly non-discriminatory.  It 
applied to all tobacco products, regardless of type or  origin, and as such represented best practice in 
tobacco control.  Ukraine's clai m that the measure treated imported tobacco products less favourably 
than like domestic products was, therefore, uncl ear and Ukraine's panel request provided no further 
clarification in that regard.  The tobacco plain p ackaging measure was a world first and was the next 
logical step in Australia's long history of tobacco control efforts.  In adopting the measure, Australia 
had acted consistently with its WTO obligations.  For these reasons, Australia was disappointed that 
Ukraine had requested the DSB to establish a panel in relation to tobacco plain packaging and could 
not agree to that request. 
81. The DSB took note of the statements and agreed to revert to this matter. 
6. United States – Countervailing duty meas ures on certain products from China 
(a) Request for the establishment of a panel by China (WT/DS437/2) 
82. The Chairman drew attention to the comm unication from China contained in document 
WT/DS437/2, and invited the representative of China to speak. 
83. The representative of China said that first he r delegation wished to make a statement 
regarding Agenda item 1F of the present meeting, wh ich was closely related to Agenda item 6.  She 
said that the United States had twice claimed that China had requested additional time to provide responses to the US Department of Commerce's (USDOC) questionnaires regarding implementation 
of the DSB's recommendations and rulings in the DS379 dispute.  But what had not been mentioned was that the United States had requested excessive  information from the Chinese Government and 
after eight months of preparation in circulating th e questionnaires, only three weeks had been given to 
respond to those questionnaires.  That was why Chin a had no choice but to request additional time to 
coordinate among different agencies and enterprises.   To claim that the dispute involved complex 
issues could not exempt any Member from promptly implementing the DSB's recommendations and rulings.  The fact was that more than five months had lapsed since the expiry of the reasonable period 
of time agreed by the two parties.  China hoped that the United States would implement the DSB's 
recommendations and rulings in the DS379 dispute in good faith.  
84. With regard to Agenda item 6, China regrette d to request the establishment of a panel to 
examine the DS437 dispute.  As had been explaine d in the panel request, this case concerned the 
preliminary and final countervailing duty measur es imposed by the USDOC as well as the "rebuttable 
presumption" established and applied by the USDOC in its public body determinations.  China noted 
that some of the measures at issue had been adopt ed after the issuance of the Appellate Body Report 
in a previous dispute (DS379), in which the Appella te Body had clearly ruled that a similar set of 
measures were WTO-inconsistent.  Nevertheless, China regretted to note that the USDOC had not modified its conduct in the subsequent trade reme dy investigations.  Furthermore, the USDOC had 
made Chinese respondents worse off in some instanc es.  As had been indicated in the panel request, 
the USDOC's trade remedy practices at issue had si gnificantly impaired the legitimate interests of  WT/DSB/M/321 
 Page 17 
 
 
Chinese enterprises under the covered agreements.  Th e measures at issue had not only deprived the 
Chinese enterprises of the procedural fairness envisi oned by the WTO rules, but had also undermined 
their substantive rights.  China recognized Members'  legitimate right to adopt trade remedy measures 
in accordance with WTO rules.  Ho wever, China strongly believed that such rights must not be 
subject to any form of abuse.  China considered that the US trade remedy practices at issue amounted 
to an abuse of such rights and violated WTO rules.  Thus , China looked forward to a clear WTO 
finding to that effect.  Consultations in this disput e had been held on 25 June and 18 July 2012, with a 
view to reaching a mutually satisfactory solution.  While those consultations had clarified certain 
issues between the parties, they had failed to reso lve the dispute.  China,  therefore, respectfully 
requested, pursuant to Article 6 of the DSU, that th e DSB establish a panel to examine this matter.    
85. The representative of the United States said that  first, with respect to China's comments 
related to Agenda item 1F, his country did not belie ve it was appropriate to be returning to that 
Agenda item at this time and, therefore, would not  further disclose that discussion here.  Turning to 
the matter at hand, the United States was disappointed  that China had requested the establishment of a 
panel on this matter.  The WTO Agreements perm itted Members to levy a countervailing duty in 
order to offset injurious subsidies bestowed by another Member on the manufacture, production, or 
export of goods in or from that other Member's ju risdiction.  With respect to the countervailing duty 
proceedings at issue in this dispute, the United St ates had conducted the proceedings transparently and 
with all the procedural safeguards provided for under the WTO Agreement.  The United States also 
noted that China's panel request appeared to incl ude measures about which c onsultations had neither 
been requested nor held.  For those reasons, the Un ited States was not in a position to agree to the 
establishment of a panel. 
86. The DSB took note of the statements and agreed to revert to this matter. 
7. China – Certain measures affecting electronic payment services 
(a) Report of the Panel (WT/DS413/R and Add.1) 
87. The Chairman recalled that, at its meeti ng on 25 March 2011, 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 /DS413/R and Add.1 had been circulated on 16 July 2012 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. 
88. The representative of the United States said that his country thanked the Panel and the 
Secretariat assisting it for their hard work on this dispute.  Electronic payment services (EPS) allowed 
consumers to purchase goods and services without cash.  EPS enabled, facilitated and managed the 
flow of information and the transfer of funds fro m cardholders' banks to merchants' banks.  EPS were 
vital to facilitating global commerce and were familiar  to both consumers and merchants alike.  Each 
year well over US$1 trillion worth of electronic pa yment card transactions were processed in China 
alone.  China had instituted and maintained measure s that discriminated against foreign EPS suppliers 
at every stage of a card-based electronic paymen t that took place in China in China's domestic 
currency, the renminbi (RMB).  China's discrimin atory measures had ensured the market dominance 
of a Chinese entity, China UnionPay, Ltd. (CUP) an d had prevented foreign suppliers from providing 
these EPS.  China had committed to eliminate any measu res not consistent with its market access and 
national treatment obligations for "all payment and money transmission services, including credit, 
charge, and debit cards…".  The Panel Report that  was being adopted at the present meeting found 
that China had failed to do so, and that each aspect of China's regulatory architecture for payment card 
transactions was inconsistent with China's WTO oblig ations.  First, the Panel had found that China 
required that all payment cards issued in China bore  a UnionPay logo.  The Panel had also found that 
China required that the financial institutions that issued payment cards become members of the CUP WT/DSB/M/321 
Page 18  
 
network, and that the cards they issued in Ch ina met certain uniform business specifications and 
technical standards.  The Panel had properly fo und that these requirements discriminated against 
services and service suppliers of other Members.  Second, the Panel had found that China required 
that ATMs, merchant processing devices, and point-o f-sale terminals in China be capable of accepting 
all payment cards bearing the UnionPay logo.  Th e Panel had properly found that these requirements 
also discriminated against services and service suppliers of other Members.  Third, the Panel had 
found that China imposed requirements on acquiring institutions (acquirers).  These institutions 
sought to acquire payment card transactions, maintain  relationships with merchants, provide terminal 
equipment, and were also customers of EPS.  Th e Panel had found that China imposed requirements 
on acquirers to post the UnionPay logo, and to join the CUP network and comply with uniform 
business standards and technical specifications of in ter-bank interoperability.   The Panel had found 
that China required terminal equipment operated or  provided by acquirers be capable of accepting 
bank cards bearing the UnionPay logo.  The Pane l had properly found that these requirements also 
discriminated against other Members' services and ser vice suppliers.  In addition to finding that China 
had breached its national treatment obligations in each of these ways, the Panel had also found that 
China had breached its market access obligations unde r Article XVI of the GATS.  In particular, the 
Panel had found that the requirements pertaining to certain card-based electronic transactions related 
to Hong Kong and Macao were inconsistent with China's market access co mmitments because China 
maintained a monopoly over the processing of such transactions.   
89. The United States had also prevailed on each of the key threshold issues.  In particular, the 
Panel had confirmed that EPS was a single, fully  integrated service and that EPS was properly 
classified under a single subsector of China's Schedule,  subsector (d), rather than under subsectors for 
which China had no national treatment or market access WTO commitments.  While the United States was very pleased with those findings, there were ne vertheless a few aspects of the Panel Report with 
which it had concerns.  The United States said that it would like to take the opportunity to note one such area of concern.  The United States was disa ppointed that, having found that China's measures 
severely discriminated against foreign suppliers in  favour of CUP, and despite recognizing that CUP 
was the sole EPS supplier processing domestic RMB payment card transactions in China, the Panel 
nonetheless had failed to find that China's measures provided CUP with the status of a monopoly or exclusive supplier.  The United States was concerne d that this result failed to recognize the opaque 
manner in which China's measures operated, as that l ack of transparency was the principal reason for 
any perceived evidentiary insufficiencies cited by the Panel.  Overall, however, the United States was 
extremely pleased that the DSB would adopt this important Report.  The policies of China, as had 
been reflected in the measures at issue in this di spute, had caused pervasive discrimination at every 
stage of a card-based payment transaction and had severely distorted competition in China's market.  
The United States welcomed China's decision to accep t the adoption of the Panel Report at the present 
meeting.  The United States looked forward to constructive engagement with China to put this dispute 
behind the parties, in particular action by China to address its measures affecting electronic payment 
services – and more broadly – to meet its WT O obligations in light  of this Report. 
90. The representative of China said that her country thanked the Panel and the Secretariat for 
their work on this dispute.  This was one of a limited number of disputes that had arisen under the 
General Agreement on Trade in Services, and th e first dispute involving the Annex on Financial 
Services.  China appreciated that the Panel and the Secretariat had completed their work in a timely 
and efficient manner.  The centrepiece of the US cl aim in this dispute was that China had provided a 
monopoly to China UnionPay with respect to the pr ocessing of domestic payment card transactions.  
The United States had failed to establish the existe nce of any such "monopoly".  As the Panel had 
correctly found, none of the measures identified by the United States, whether viewed individually or collectively, had conferred any sort of domes tic processing monopoly upon China UnionPay.  China 
commended the Panel for its diligent and thorough examination of the measures at issue, and for its 
rejection of the unfounded "monopoly" claims by the United States.  China also welcomed the Panel's 
conclusion that a Member's market access obliga tions under Article XVI:2 of the GATS prevailed 
over the Member's national treatment obligations unde r Article XVII of the GATS, to the extent of  WT/DSB/M/321 
 Page 19 
 
 
any overlap between these two disciplines.  The Panel's conclusion was based on a straightforward 
reading of Article XX:2 of the GATS, which plainly indicated that a Member's market access commitments, or lack thereof, applied to any of the measures listed in Article XVI:2(a)-(f), including 
measures that were discriminatory in nature.  This  was an important systemic issue in the operation of 
the GATS, and one that had previously been the subject of extensive discussion in the Council for 
Trade in Services.  China believed that the Panel' s interpretation was correct and represented a proper 
resolution of this issue.   
91. However, China did not believe that the Panel Report was entirely free from error.  China was 
concerned, in particular, about the Panel's approach to the classification of the services at issue in this 
dispute.  The processing of payment card transactions involved a number of distinct and separately 
identifiable service subsectors, including data processing services and clearing and settlement 
services.  The Panel had classified these separate and distinct services into a single subsector, "payment and money transmission services", based on the idea that any service that was "necessary" or "essential" to the supply of another service should be classified as that other service.  The Panel's approach to services classification should be of br oader systemic concern to Members as a whole.  
This approach, if followed in other disputes, w ould undermine the taxonomy of distinct and mutually 
exclusive service subsectors that was the f oundation for negotiating and scheduling services 
commitments.  Many service transactions involved a number of distinct services operating in conjunction with each other.  Sometimes those services  were provided by the same service supplier, 
and sometimes they were provided by different ser vice suppliers.  If services were classified based on 
whether they were "necessary" or "essential" to the provision of some other service, Members would 
be left with an undifferentiated mass of "servi ces".  That was not how Members had agreed to 
negotiate and schedule their services commitments, a nd it was inconsistent with the Appellate Body's 
recognition that the service subsectors in a Memb er's Schedule of Specific Commitments were 
mutually exclusive.  While China was concerned ab out the Panel's approach to services classification, 
China believed that a more definitive resolution of this  issue could be desirable to all Members.  Even 
under the Panel's classification of the services at issue, the Panel's findings of inconsistency were 
limited in scope and effect, given the lack of a ma rket access commitment in Mode 1 and the nature of 
China's market access limitations in Mode 3.   
92. The representative of the United States said th at his country welcomed the sentiment of 
China's statement that CUP did not have a monopol y.  The United States looked forward to seeing 
those assertions reflected in foreign EPS supplie rs, including US EPS suppliers, processing domestic 
RMB payment card transactions. 
93. The DSB took note of the statements and adopted the Panel Report contained in document 
WT/DS413/R and Add.1. 
__________