RESTRICTED  
  
WT/DSB/M/380  
 
2 September  2016 
(16-4660) Page: 1/31 
Dispute Settlement Body  
22 June 2016    
 
 MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 22 JUNE 2016  
Chairman: Mr. Xavier  Carim  (South Africa ) 
Table of Contents  
1   SURVEILLANCE OF IMPL EMENTATION OF RECOMM ENDATIONS ADOPTED BY  
THE DSB ................................ ................................ ................................ ...........................  2 
A.  United  States – Anti–dumping measures on certain hot –rolled steel products from 
Japan: Status report by the United  States  ................................ ................................ ..............  3 
B.  United  States – Section  110(5) of the US Copyright Act: Status report by the 
United  States  ................................ ................................ ................................ .....................  3 
C.  European  Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European  Union ................................ ................................ ....... 3 
D.  United  States – Anti–dumping measures on certain shrimp from Viet  Nam: Status 
report by the United  States  ................................ ................................ ................................ .. 4 
E.  United  States – Countervailing duty measures on certain products from China: Status 
report by the United  States  ................................ ................................ ................................ .. 5 
F.  India – Measures concerning the importatio n of certain agriculture products: Status 
report by India  ................................ ................................ ................................ ...................  6 
2   UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  
OF 2000: IMPLEMENTATION  OF THE RECOMMENDATIO NS ADOPTED BY THE  DSB ...........  7 
A.  Statements by the European  Union and Japan  ................................ ................................ ... 7 
3   CHINA – CERTAIN MEASURES AFF ECTING ELECTRONIC PA YMENT SERVICES  .............  8 
A.  Statement by the United  States  ................................ ................................ .......................  8 
4   UNITED  STATES - COUNTERVAILING DUTY MEASURES ON CERTAIN 
HOT-ROLLED CARBON STEEL FLAT PRODUCTS FROM I NDIA  ................................ ............  9 
A.  Statement by India  ................................ ................................ ................................ ........  9 
5   CHINA – ANTI -DUMPING AND COUNTERV AILING DUTY MEASURES  ON 
BROILER PRODUCTS FRO M THE UNITED  STATES  ................................ ...........................  11 
A. Recourse to Article  21.5 of the DSU by the United  States: Request for the 
establishment of a panel  ................................ ................................ ................................ .....11 
6   UNITED  STAT ES – MEASURES CONCERNING THE IMPORTATION, MAR KETING 
AND SALE OF TUNA AND  TUNA PRODUCTS  ................................ ................................ ..... 12 
A.  Second recourse to Article  21.5 of the DSU by Mexico: Request for the establishment 
of a panel  ................................ ................................ ................................ ......................... 12 WT/DSB/M/380  
 
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 7   KOREA – ANTI -DUMPING DUTIES ON PN EUMATIC VALVES FROM JAPAN  ..................  13 
A.  Request for the establishment of a panel by Japan  ................................ ............................ 13 
8   UNITED  STATES – COUNTERVAILING MEASU RES ON SUPERCALENDER ED 
PAPER FROM CANADA  ................................ ................................ ................................ .... 14 
A.  Request for the establishment of a panel by C anada  ................................ .......................... 14 
9   COLOMBIA – MEASURES RELATING TO  THE IMPORTATION OF T EXTILES, 
APPAREL AND FOOTWEAR  ................................ ................................ ..............................  15 
A.  Report of the Appellate Bo dy and Report of the Panel  ................................ ........................ 15 
10   PRACTICES AND PROCED URES IN THE CONDUCT OF WTO DISPUTES  ......................  17 
A.  Statement by Canada  ................................ ................................ ................................ ....17 
11   STATEMENT BY THE CHA IRMAN REGARDING THE CONSULTATIONS ON 
APPELLATE BODY MATTE RS ................................ ................................ ...........................  22 
12   THAILAND – CUSTOMS AND FISCAL M EASURES ON CIGARETTES FROM THE 
PHILIPPINES  ................................ ................................ ................................ .................  30 
A. Statement by the Philippines  ................................ ................................ ........................... 30 
13   DISPUTE SETTLEMENT W ORKLOAD  ................................ ................................ .........  30 
A. Statement by the Chairman  ................................ ................................ ............................. 30 
 
 
1  SURVEILLANCE OF IMPL EMENTATION OF RECOMM ENDATIONS ADOPTED BY  THE DSB 
A.  United  States – Anti–dumping measures on certain hot –rolled steel products from Japan: 
Status report by the United  States (WT/DS184/15/Add.161)  
 
B.  United  States – Section  110(5) of the US Copyright Act: Status report by the United  States 
(WT/DS160/24/Add.136)  
 
C.  European  Communities – Measures affecting the approval and marke ting of biotech products: 
Status report by the European  Union (WT/DS291/37/Add.99)  
 
D.  United  States – Anti–dumping measures on certain shrimp from Viet  Nam: Status report by the 
United  States (WT/DS404/11/Add.47)  
 
E.  United  States – Countervailing duty measures on certain products from China: Status report by 
the United  States (WT/DS437/18/Add.2)  
 
F.  India – Measures concerning the importation of certain agriculture products: Status report by 
India (WT/DS430/15)  
 
 
1.1.  The Chairman  noted that there were six sub-items under this Agenda item concerning status 
reports submitted by delegations pursuant to Article  21.6 of the DSU. He recalled that Article  21.6 
required that: "Unless the DSB decides otherwise, the issue of implementation of the 
recommendations or r ulings shall be placed on the Agenda of the DSB meeting after six  months 
following the date of establishment of the reasonable period of time and shall remain on the DSB's 
Agenda until the issue is resolved". Under this Agenda item, he invited delegations to provide up -
to-date information about compliance efforts and to focus on new developments, suggestions and 
ideas on progress towards the resolution of disputes. He reminded delegations that, as provided 
for in Rule  27 of the Rules of Procedure for DSB me etings: "Representatives should make every 
effort to avoid the repetition of a full debate at each meeting on any issue that has already been 
fully debated in the past and on which there appears to have been no change in Members' 
positions already on recor d". He turned to the first status report under this Agenda item.  WT/D SB/M/380  
 
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 A.  United  States – Anti–dumping measures on certain hot –rolled steel products from 
Japan: Status report by the United  States (WT/DS184/15/Add.161)  
1.2.  The Chairman  drew attention to document WT/ DS184/15/Add.161, which contained the 
status report by the United  States on progress in the implementation of the DSB's 
recommendations in the case concerning US  anti-dumping measures on certain hot -rolled steel 
products from Japan.  
1.3.  The representative of t he United  States  said that his country had provided a status report in 
this dispute on 9  June 2016, in accordance with Article  21.6 of the DSU. The United  States had 
addressed the DSB 's recommendations and rulings with respect to the calculation of anti -dumping 
margins in the hot -rolled steel anti -dumping duty investigation at issue. With respect to the 
recommendations and rulings of the DSB that had yet to be addressed, the US Administration 
would work with the US Congress with respect to appropriate statu tory measures that would 
resolve this matter.  
1.4.  The representative of Japan  said that his country thanked the United  States for its statement 
and its status report submitted on 9  June 2016. Japan wished to refer to its previous statements 
that this issue sho uld be resolved as soon as possible.  
1.5.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
B.  United  States – Section  110(5) of the US Copyright Act: Status report by the 
United  States (WT/DS160/24/Add.136)  
1.6.  The Chairman  drew attention to document WT/DS160/24/Add.136, which contained the 
status report by the United  States on progress in the implementation of the DSB's 
recommendations in the case concerning Section  110(5) of the US Copyright Act.  
1.7.  The representat ive of the United  States  said that his country had provided a status report in 
this dispute on 9  June 2016, in accordance with Article  21.6 of the DSU. The US Administration 
would continue to confer with the European  Union, and to work closely with the US Congress, in 
order to reach a mutually satisfactory resolution of this matter.  
1.8.  The representative of the European  Union  said that the EU thanked the United  States for its 
status report and its statement made at the present meeting. The EU referred to its s tatements 
made under this Agenda item at previous DSB meetings. The EU wished to resolve this dispute as 
soon as possible.  
1.9.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
C.  European  Communities – Measu res affecting the approval and marketing of biotech 
products: Status report by the European  Union (WT/DS291/37/Add.99)  
1.10.   The Chairman  drew attention to document WT/DS291/37/Add.99, which contained the 
status report by the European  Union on progress in the im plementation of the DSB's 
recommendations in the case concerning measures affecting the approval and marketing of 
biotech products.  
1.11.   The representative of the European  Union  said that two GMOs1 had been voted on, with a 
no opinion result , in the Standing Co mmittee on 25  April and at the Appeal Committee on 
2 June 2016. It was now for the European Commission to decide on the approval. More generally, 
and as stated many times previously, the EU recalled that the EU approval system was not 
covered by the DSB's recommendations and rulings.  
                                                
1 Maize Bt11 × MIR162 × MIR604 × GA21 and cu t flowers carnation line SHD-27531 -4. WT/DSB/M/380  
 
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 1.12.   The representative of the United  States  said that his country thanked the EU for its status 
report and its statement made at the present meeting. As the United  States had noted repeatedly 
at past meetings of the DSB, EU measure s affecting the approval and marketing of biotech 
products remained of substantial concern to the United  States. The situation was only getting 
worse as the EU continued to delay pending approvals. These delays were having a dramatic 
impact on trade. For y ears, the delays had been restricting US exports of key agricultural products 
to the EU, including corn. Increasingly that year, US soybean exports were being negatively 
affected. As it had noted at the April and May DSB meetings, the United  States had ser ious 
concerns with the EU's significant delay in approving the applications of three varieties of biotech 
soybeans. These varieties were critical for US farmers because they included important 
technologies that promoted weed control, and the varieties were  grown across the United  States. 
The EU's scientific body had concluded extensive scientific reviews of these soybean varieties in 
June and July of  2015. Those reviews had confirmed that these biotech products were safe for use 
in the EU. The EU, however, had continued to delay approval of these products, without any 
legitimate basis. The EU's delays were impacting American and European farmers. European 
farmers needed US soybeans to feed their livestock. Traders were not entering into contracts for 
US soyb eans due to the EU 's failure to approve these products. The United  States again asked the 
EU to ensure that its biotech approval measures were consistent with its obligations under the 
SPS Agreement.  
1.13.   The representative of the Europea n Union  said that the E U wished to underline that the 
Commission was proceeding with the authorization of all GMOs that had received a favourable 
EFSA opinion. The three  pending soybeans applications were at the final stage of approval and the 
Commission was proceeding with the authorization.  
1.14.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
D.  United  States – Anti–dumping measures on certain shrimp from Viet  Nam: Status 
report by the United  States (WT/DS404/11/Add.47)  
1.15.   The Chairman drew attention to document WT/DS404/11/Add.47, which contained the 
status report by the United  States on progress in the implementation of the DSB's 
recommendations in the case concerning US anti -dumping measures on certain shrimp from 
Viet Nam.  
1.16.   The re presentative of the United  States  said that his country had provided a status report in 
this dispute on 9  June 2016, in accordance with Article  21.6 of the DSU. As the United  States had 
noted at past DSB meetings, in February  2012 the US Department of Comm erce had modified its 
procedures in a manner that addressed certain findings in this dispute. The United  States would 
continue to consult with interested parties regarding matters related to the other 
recommendations and rulings of the DSB.  
1.17.   The representat ive of Viet Nam said that her country thanked the United  States for its 
statement and its status report in this dispute. Viet Nam continued to expect the relevant parts of 
the DSB's rulings and recommendations in this dispute to be implemented by the Unite d States in 
the context of the implementation of the second shrimp dispute (DS429). Any delay in 
implementation of the DS429 dispute may also delay the implementation of relevant parts of the 
DS404 dispute.  
1.18.   The representative of the Bolivarian Republic of Venezuela  said that his country supported 
the statement made by Viet  Nam. Venezuela took note of the US status report of 9  June 2016, and 
referred to its previous statements made under this Agenda item. Venezuela reiterated the 
importance of prompt complia nce with the DSB's recommendations and rulings so as to ensure the 
effective resolution of disputes. Venezuela hoped that this dispute would be resolved soon.  WT/D SB/M/380  
 
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 1.19.   The representative of Cuba said that her country supported the statement made by 
Viet Nam. Cuba reiterated the importance of prompt compliance with the DSB's recommendations 
and rulings in this dispute as well as in other pending disputes, and in particular those where the 
interests of a developing -country Member were affected. Cuba expressed its con cern about th e 
situation of non -compliance with the DSB's recommendations.  
1.20.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
E.  United  States – Countervailing duty measures on certain products from China:  Status 
report by the United  States (WT/DS437/18/Add.2)  
1.21.   The Chairman  drew attention to document WT/DS437/18/Add.2, which contained the status 
report by the United  States on progress in the implementation of the DSB's recommendations in 
the case concerning US countervailing duty measures on certain products from China.  
1.22.   The representative of the United  States  said that his country had provided a status report in 
this dispute on 9  June 2016, in accordance with Article  21.6 of the DSU. As detailed in the status  
report, the United  States had taken all necessary actions to bring its measures into compliance 
with its WTO obligations and had completed its implementation process on 26  May 2016. The 
scope of this dispute was one of the most extensive in the history of  the dispute settlement 
system. Although the panel and the Appellate Body had rejected many of China' s claims, the DSB's 
recommendations and rulings called for further administrative action with respect to 15  separate 
countervailing duty (CVD) investigatio ns. The DSB's recommendations had also included one "as 
such" finding. Through extensive efforts, involving multiple CVD proceedings and multiple distinct 
issues, the United  States had completed the implementation process with respect to all findings in 
the dispute. The US implementation in this dispute, as that previously announced for the DS436 
dispute, further demonstrated the commitment of the United  States to comply with WTO findings, 
contributing to strengthening the dispute settlement system.  
1.23.   The rep resentative of China  said that her country thanked the United  States for its status 
report concerning US implementation of the DSB's recommendations and rulings in this dispute. 
China wished to make a few brief comments. It was not until 26  May that the US TR had finally 
finished requesting the USDOC to implement all the Section  129 determinations. The United  States 
had failed to implement the DSB's recommendations and rulings within the reasonable period of 
time. Implementation within the reasonable period of time was essential for the effective 
functioning of the dispute settlement system. The United  States had violated not only China's 
substantive right to achieve compliance with the covered agreements, but also a procedural right 
regarding the reasonable period of time that had been determined through binding arbitration. 
With regard to the substance of the Section  129 determinations issued by the USDOC, China 
regretted that those determinations did not bring the United  States into compliance with the 
SCM Agreement. Therefore, on 13  May 2016, China had filed its request for consultations with the 
United  States pursuant to Article  21.5 of the DSU. The parties had held such consultations on 
27 May. However, China regretted that the consultation did not addres s the concerns raised by 
China in its request with respect to the US implementation measure. China looked forward to the 
US effective engagement in eliminating the inconsistency of the implementation measures to solve 
the dispute, so as to avoid any unnece ssary further legal actions.  
1.24.   The representative of the United  States  said that his country found China's criticism with 
respect to the time required for implementation to be unwarranted. The scope of this dispute was 
one of the most extensive in the histor y of the dispute settlement system. As the United  States 
had noted, the DSB's recommendations and rulings called for further administrative action with 
respect to 15  separate CVD investigations. That is, t he claims here could have been brought in 
15 separa te disputes. For most of these separate investigations, the recommendations and rulings 
involved multiple obligations under the SCM Agreement. Through the devotion of administrative 
resources, the United  States had been able to implement all of the DSB's r ulings with respect to 
the majority of the CVD proceedings, as well as the one "as such" finding in this dispute, by the 
end of the reasonable period of time. Given the tremendous volume of work arising from the 
extensive scope of this dispute, the remaini ng proceedings could not be completed by the end of 
the reasonable period of time. But the United  States had nevertheless completed the remaining 
determinations within less than two months. The United  States regretted that China was 
suggesting that US comp liance was inadequate, particularly in light of China' s reluctance to WT/DSB/M/380  
 
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 provide necessary information during the course of the compliance proceedings. Contrary to 
China's view, there was no basis for suggesting that US compliance was inadequate.  
1.25.   The represen tative of China  said that his country noted that the United  States had 
frequently referred to this dispute as one of the largest disputes in the history of the dispute 
settlement system, pointing to the fact that the DSB had made findings of inconsistency with 
respect to 15  countervailing duty determinations. However, the fact was that the DSB's findings 
related to the USDOC's repeated application of the same unlawful standards and methodologies for 
evaluating the existence and extent of a subsidy. In that regard, this dispute was not a dispute 
about 15  distinct CVD determinations. China was concerned that, like the "zeroing" disputes, the 
DS437 dispute was about the same unlawful standards and methodologies having been applied 
repeatedly.  
1.26.   The representative  of the United  States  said that compliance in this dispute did not involve 
simply revisiting a single issue in 15  proceedings, but rather required the reconsideration of 
multiple complex issues in each of the proceedings. Moreover, these issues required Co mmerce to 
examine the extent of Chinese government involvement across a range of sectors. Commerce's 
finding pertaining to the use of out -of-country benchmarks provided a clear example of how 
complex and time -consuming implementation was in this dispute. I n response to Commerce's 
request for information on the input markets in question, China had responded with a submission 
containing more than 1,400  pages, including a detailed and lengthy econometric study and more 
than 80  exhibits. The US domestic industr y had filed its own competing evidence. Commerce then 
had to carefully consider all of this evidence in determining how to apply the Appellate Body 's 
findings on this benchmark issue in each of the relevant CVD investigations. This example 
illustrated just  one of the many complex issues that had been addressed in these proceedings.  
1.27.   The DSB took note  of the statements.  
F.  India – Measures concerning the importation of certain agriculture products: Status 
report by India (WT/DS430/15)  
1.28.   The Chairman  drew atten tion to document WT/DS430/15, which contained the status report 
by India on progress in the implementation of the DSB's recommendations in the case regarding 
India's measures concerning the importation of certain agricultural products.  
1.29.   The representative o f India said that his country had submitted its status report in this 
dispute, contained in document WT/DS430/15, on 8  June 2016, in accordance with Article  21.6 of 
the DSU. India recalled that, on 19  June 2015, the DSB had adopted the recommendations and 
rulings in this dispute. At the subsequent DSB meeting, India had informed the DSB of its intention 
to implement the DSB's recommendations and rulings in this dispute. On 8  December  2015, India 
and the United  States had informed the DSB that they had agree d that a reasonable period of time 
for India to implement the DSB's recommendations and rulings would end on 19  June 2016. Indian 
authorities had been conferring with interested parties since the adoption of the DSB's rulings and 
recommendations with the i ntention to fully comply within the reasonable period of time. Indian 
authorities had held extensive internal stakeholder consultations in that regard. Based on those 
consultations and deliberations, India had prepared the draft notification on the propose d measure 
and had notified the same to the SPS committee (notification G/SPS/N/IND/143 dated 
20 April 2016), allowing import of poultry and poultry products into India from countr ies, zone s or 
compartment s free from avian influenza, in accordance with the relevant international standard, 
i.e. the OIE Terrestrial Code. The draft notification had provided a 60 -day time -period for 
interested parties to provide comments on the draft notification. Further, India in its addendum 
dated 21  June 2016 had amended ite m 8 of the aforesaid notification to appropriately reflect the 
relevant international standard. The draft notification had been issued by the Department of 
Animal Husbandry, Dairying and Fisheries ; Ministry of Agriculture and Farmers Welfare ; of the 
Govern ment of India in exercise of the power conferred by sub -section  (1) of Section  3 and 
Section  3A of the Livestock Act,  1898 (9  of 1898) and in supersession of the notification of the 
Government of India in the Ministry of Agriculture published in the Gazett e of India, Extraordinary, 
part II, Section  3, sub -section  (ii) of number S.O.1663(E) dated 19  July 2011, which was the 
"measure" in the present dispute.  WT/D SB/M/380  
 
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 1.30.   The draft notification took into account the findings of the Panel and the Appellate Body in 
this disp ute and provided that the import ation of poultry and poultry products shall be allowed 
from zones/ compartments free from avian influenza virus in accordance with the relevant 
international standard, i.e. the OIE Terrestrial Code. The draft notification fu rther provided for the 
process to be followed for recognition of such zones/ compartments in conformity with 
Chapter  10.4 of the OIE Terrestrial Code and the SPS Agreement. As stated earlier, India had 
provided a 60 -day time -period for Members to comment o n the draft notification. Almost at the 
end of the 60 -day time -period, on 10  June, India had received comments from only one Member, 
namely the United  States, on the draft notification. India had taken into consideration the 
comments made by the United  States and the final notification, which would be issued shortly, 
would appropriately reflect the same. In addition to the draft notification, India had also finalized 
the guidelines to be followed for recognizing zones or compartments as stated under 
paragra ph 3(i) of the draft notification. The guidelines were currently being vetted by the 
concerned authorities and would shortly be made available to the interested parties. With the 
adoption of the new notification superseding the earlier measure, India would  fully comply with the 
DSB's rulings and recommendations in this dispute.  
1.31.   The representative of the United  States  said that his country took note of India's statement 
in its status report that it "has taken all steps required to comply with the findings an d 
recommendations of the DSB in this dispute."2 The United  States was not in a position to accept 
that assertion. The United  States had been unable to verify India's claim that it had promulgated a 
new draft notification. India had not done so at the time that it had circulated its communication 
claiming compliance. Given that India had not notified a final replacement measure to the SPS 
Committee, the United  States did not see how India could claim to be currently in compliance. To 
the extent India was cla iming that the proposed measure it had notified to the WTO SPS 
Committee would bring India into compliance once it entered into force, the United States had 
serious concerns, both on substance and procedure. Substantively, the United States noted that 
the proposed measure appeared to retain many of the features of India's prior measure that the 
DSB had found to be inconsistent with India's obligations under the SPS Agreement. For example, 
the proposed measure appeared to impose import prohibitions on accoun t of avian influenza 
outbreaks, contrary to the DSB 's findings on the OIE Terrestrial Code;3 and the proposed measure 
appeared more trade restrictive than measures based on international guidelines, contrary to the 
DSB's findings that international standar ds met India's level of protection.4 Procedurally, the DSB 
had found that India had breached its obligations under Annex  B by failing to ensure that its 
existing measure was notified so that amendments could be introduced and comments could be 
taken into a ccount.5 The notification stated the final measure would go into force the day following 
the close of the period to submit comments. Regrettably, this suggested India did not intend to 
take into account any comments submitted, nor to leave open the possibi lity of amending the 
proposed measure in response to the comments. The United  States had asked India for any risk 
assessment on which its proposed measure was based, but India had not provided any, or even 
indicated that such a risk assessment existed. Mor eover, the status report and the notification of 
the proposed measure omitted information as to how India had addressed certain other DSB 
findings, such as the need to ensure its AI measure did not unjustifiably discriminate against 
imports in light of the  conditions prevailing within India. The United  States did not see how India 
had addressed the problems found by the DSB with its import restrictions and the United  States 
would continue to review India's actions and consider how best to address its concer ns. 
1.32.   The DSB took note  of the statements.  
2  UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  OF 2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE  DSB 
A.  Statements by the European  Union and Japan  
2.1.  The Chairman  said that this item was on the A genda of the present meeting at the request of 
the European  Union and Japan, and he invited the respective representatives to speak.  
                                                
2 WT/DS430/15 (second to last sentence).  
3 "India – Agricultural Products", para . 7.270.  
4 "India – Agricultural Products" (AB), para. 5.232.  
5 "India – Agricultural Products", paras. 7.790, 8.1 c. xi.  WT/DSB/M/380  
 
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 2.2.  The representative of the European  Union  said that the EU, once again, requested the 
United  States to stop transferring ant i-dumping and countervailing duties to the US industry. 
These disbursements were incompatible with the DSB's recommendations and rulings. The EU 
renewed its call on the United  States to abide by its clear obligation under Article  21.6 of the DSU 
and to sub mit status reports in this dispute.  
2.3.  The representative of Japan  said that, since the distributions under the CDSOA had 
continued, Japan, once again, urged the United  States to stop the illegal distributions in order to 
resolve this long -standing dispute. A s it had stated at previous meetings, Japan was of the view 
that the United  States was under obligation to provide the DSB with a status report in this dispute, 
in accordance with Article  21.6 of the DSU.  
2.4.  The representative of Brazil  said that her country thanked the EU and Japan for keeping this 
item on the DSB's Agenda. Brazil, as one of the parties to this dispute, wished to refer to its 
statement made under this Agenda item at the 23  May 2016 DSB meeting.  
2.5.  The representative of Canada  said that his count ry wished to refer to its previous statements 
made under this Agenda item. Canada's position on this matter had not changed.  
2.6.  The representative of China  said that her country thanked the EU and Japan for placing this 
item on the Agenda of the present meeti ng. China urged the United  States to fully comply with the 
DSB's rulings in this dispute.  
2.7.  The representative of the United  States  said that, as his country had noted at previous DSB 
meetings, the Deficit Reduction Act, which included a provision repealing the Continued Dumping 
and Subsidy Offset Act of  2000, had been enacted into law in February  2006. Accordingly, the 
United  States had taken all actions necessary to implement the DSB's recommendations and 
rulings in these disputes. The United  States recalle d, furthermore, that the EU, Japan, and other 
Members had acknowledged that the Deficit Reduction Act did not permit the distribution of duties 
collected on goods entered after 1  October  2007, over eight years ago. The United  States 
therefore did not under stand the purpose for which the EU and Japan had inscribed this item on 
the Agenda of the present meeting. With respect to comments regarding further status reports in 
this matter, as it had already explained at previous DSB meetings, the United  States fai led to see 
what purpose would be served by further submission of status reports which would repeat, again, 
that the United  States had taken all actions necessary to implement the DSB 's recommendations 
and rulings in these disputes. Indeed, as these very WT O Members had demonstrated repeatedly 
when they had been a responding party in a dispute, there was no obligation under the DSU to 
provide further status reports once a Member announced that it had implemented those DSB 
recommendations and rulings, regardl ess of whether the complaining party disagreed about 
compliance.  
2.8.  The DSB took note  of the statements.  
3  CHINA – CERTAIN MEASURES AFF ECTING ELECTRONIC PA YMENT SERVICES  
A.  Statement by the United  States  
3.1.  The Chairman  said that this item was on the Agenda of th e present meeting at the request of 
the United  States and he invited the representative of the United  States to speak.  
3.2.  The representative of the United  States  said that the DSB had adopted its recommendations 
and rulings in this dispute in August  2012, and  the reasonable period of time had expired in 
July 2013. As the United  States had noted at past meetings of the DSB, China's sole domestic 
supplier continued to maintain control of the domestic electronic payment services ("EPS") market. 
In accord with its  WTO obligations, China must adopt measures necessary and take the required 
steps to allow the operation of foreign EPS suppliers in China. The United  States took note that 
earlier that month, nearly four  years after the DSB had adopted its recommendations  and rulings 
in this dispute, China had issued a regulation that appeared to set out a licensing application 
process for electronic payment service suppliers to obtain authorization to do business in the 
Chinese market. The United  States was in the process  of reviewing these regulations, with a view WT/D SB/M/380  
 
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 to determining whether the regulations would allow for the approval of foreign EPS suppliers 
without further delays.  
3.3.  The representative of China  said that her country regretted that the United  States had, once 
again, brought this matter before the DSB. China wished to refer to its statements made under 
this Agenda item at previous DSB meetings and emphasized that it had taken all necessary actions 
and had fully implemented the DSB's recommendations and rulings in  this dispute. China was 
pleased that the United  States had noticed the issuance of the regulation. China reiterated that the 
regulation mentioned by the United  States was not relevant to the implementation of the DSB's 
recommendations and rulings in this dispute. Nor was the DSB meeting the appropriate forum to 
discuss China's domestic regulatory action, which was irrelevant to this specific dispute.  
3.4.  The DSB took note  of the statements.  
4  UNITED  STATES - COUNTERVAILING DUTY MEASURES ON CERTAIN HOT-ROLLED 
CARBON STEEL FLAT PRODU CTS FROM INDIA  
A.  Statement by India  
4.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
India and he invited the representative of India to speak.  
4.2.  The representative of India said that, at the p revious DSB meeting, India had expressed its 
serious objection that the item regarding the surveillance of implementation of the 
recommendations adopted by the DSB in relation to the dispute: "United  States - Countervailing 
Duty Measures on Certain Hot -Rolled Carbon Steel Flat Products from India" (DS436) did not 
appear on the Agenda. India, once again, was disappointed that the United  States had not 
submitted a status report in this dispute as the United States had not fully complied with the DSB's 
rulings  and recommendations. The inclusion by India of the item on the Agenda of the present 
meeting was welcomed but not the ideal procedure. As it had been pointed out by India at the DSB 
meeting held on 23  May 2016, the United  States had not submitted a status  report in accordance 
with its binding obligation under the last sentence of Article  21.6 of the DSU. India was surprised 
that such a status report had not been submitted despite the lack of even a claim of full 
compliance in this dispute. The issue of the  non-submission of the status report was important 
since there had been a domestic law in this dispute that had been found to be inconsistent with a 
covered agreement. That law continued to remain on the statute book of the United  States. The 
United  States  had made no efforts to repeal or amend 19  USC 1677(7)(G)(iii) of its domestic law 
so as to bring it into conformity with Articles  15.1, 15.2, 15.3 and  15.5 of the SCM Agreement, in 
flagrant disregard of the DSB's recommendations. While the United  States m ight have taken some 
steps with regard to the CVD determinations or "as applied" claims, it was abundantly clear that no 
steps had been taken to address the "as such" claims by either repealing or modifying the law. 
India questioned whether it was the US p osition that there was no step required to be taken with 
respect to the WTO -inconsistent US domestic law. In India's view, this was not a minor procedural 
issue but a serious systemic issue. Ignoring this aspect would render Article  21.6 of the DSU 
ineffec tive and would seriously undermine the surveillance mechanism under the DSU. The 
indifference to this aspect was a cause of concern for the integrity and effectiveness of the WTO 
dispute settlement system. India reiterated that the recently issued findings  of the USDOC and 
USITC, purportedly issued to remove the inconsistencies noted by the Panel and Appellate Body 
Reports in the DS436 dispute, were also not in full conformity with the covered agreements. While 
it would consider and pursue appropriate legal  remedies in this respect, India urged the 
United  States to accord more serious consideration to implementing the DSB's recommendations 
and to clarify its position, through a status report, on the issue of inconsistency of its law. India 
reiterated that th e issue of the US implementation of the DSB's recommendations in the DS436  
dispute was not resolved because the United  States had not fully complied with the DSB's 
recommendations in the DS436 dispute. India urged the United  States to submit status reports  as 
per Article  21.6 of the DSU as well as to fully comply with the DSB's rulings and recommendations 
in this dispute.  
4.3.  The representative of the United  States  said that, as had been described at the meeting of 
the DSB on 22  April 2016, the United  States ha d completed implementation with respect to the 
DSB's recommendations and rulings in this dispute. Specifically, on 7  March  2016, the US WT/DSB/M/380  
 
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 International Trade Commission had issued a new CVD injury determination rendering the findings 
with respect to injury i n the underlying CVD proceeding on hot -rolled steel from India consistent 
with the DSB's recommendations in this dispute. On 14  April 2016, the US Department of 
Commerce had issued a new CVD determination rendering its determination with respect to 
subsidi zation and the calculation of countervailing duty rates consistent with the DSB's 
recommendations in this dispute. On 18  April 2016, the US Trade Representative had proceeded to 
complete this implementation process by directing Commerce to implement its ne w determinations 
pursuant to section  129(b)(4) of the Uruguay Round Agreements Act. The United  States did not 
understand the concern India now raised with respect to a finding on one provision of US law, 
Section  1677(7)(G)(i)(III) of the Trade Act of  1930.  As the United  States had explained to India 
previously, no further US action was needed with respect to this finding. The provision of US law at 
issue was not applied in the underlying investigation, and therefore had no bearing on compliance 
with respect  to the countervailing duty at issue in this dispute. Indeed, to the United  States'  
knowledge, this provision of US law had never been used in any investigation. With respect to any 
future investigations, the statutory provision related to a decision by th e administering authority to 
self-initiate a CVD investigation on the same day as an AD petition was filed by an industry, or vice 
versa. Under US law, Commerce had discretion to decide the timing when it would self -initiate an 
investigation. Having never been triggered before, it was not now the intention of the United 
States to exercise the discretion on timing provided under US law differently. That is, t he 
Department of Commerce had confirmed its commitment to exercise its discretion with respect to 
section 702(a) of the Tariff Act of 1930 pertaining to countervailing duty investigations and 
section  732(a) of that Act pertaining to anti -dumping duty investigations in a manner that was 
consistent with the international obligations of the United  States. Gi ven that the United  States had 
fully complied in this dispute, the United  States was not required to submit further status reports 
in this matter.  
4.4.  The representative of India said that his country thanked the United  States for the 
clarification regarding t he domestic law and its  non-utilization. India found it interesting to note 
that the United  States had adopted a different standard for implementing the DSB's rulings and 
recommendations in another dispute before the DSB at the present meeting. Item  1A of the 
Agenda of the present meeting demonstrated that point. It related to a dispute of over a decade 
with Japan that involved both "as applied" and "as such" findings in the context of anti -dumping. 
While the United  States had claimed compliance in respect of the USDOC determinations, it had 
continued submitting status reports to the DSB for over 13  years with respect to the US 
anti-dumping duty statute. Therefore, the United  States had not "fully" complied with the DSB's 
recommendations and rulings. This di d not warrant, and rightly so, the removal of the item from 
the DSB's Agenda. Another recent dispute that may be relevant to highlight in the present context 
was "United States – Section  211 Omnibus Appropriations Act of  1998" ( the Havana Club dispute) 
that had been under the DSB's surveillance until 25  January  2016. The United States, pursuant to 
that meeting, had stopped providing status reports on the matter. However, it was important to 
note that the complainant in that dispute, the European  Union, had stated at the 25  January  2016 
DSB meeting that the EU had not considered the matter to have been resolved within the meaning 
of Article  21.6 of the DSU. In order to resolve the matter, it had stated that the United  States 
would have to repeal Section  211. Further, although the matter had not been resolved, in view of 
the positive developments, and for the time being, the EU had not considered it necessary for the 
United  States to provide monthly reports or the submission of a status report for inclusion on the 
Agenda of regular DSB meetings. However, the EU reserved all its rights in relation to this issue. 
The issue of non -utilization of the law was irrelevant in the context of implementation of the DSB's 
rulings and recommendations. India urged the United  States to submit status reports pursuant to 
Article  21.6 of the DSU.  
4.5.  The representative of the European  Union  said that the EU understood that, at its April 
meeting, the DSB had "agreed to revert to this matter at its next regular meeting". Therefore, the 
EU had expected this dispute to be included on the Agenda of the following meeting, under Agenda 
item 1. The EU wished to stress the importance of obligations set out in Article  21.6 of the DSU. 
That being said, the EU did not take a position on compliance  in this dispute, and understood that 
there was a disagreement between the parties regarding this matter as well as on the issue as to 
whether the United  States had actually claimed full compliance at the April  2016 DSB meeting.  WT/D SB/M/380  
 
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 4.6.  The representative of the United States  said that, with regard to the other disputes 
referenced by India, the United  States noted that the present dispute was differently situated. As it 
had explained at the April DSB meeting and again at the present meeting, the United  States had 
completed implementation with respect to the DSB's recommendations and rulings in this dispute.  
4.7.  The DSB took note  of the statements.  
5  CHINA – ANTI -DUMPING AND COUNTERV AILING DUTY MEASURES  ON BROILER 
PRODUCTS FROM THE UN ITED  STATES  
A. Recourse to Article  21.5 of the DSU by the United  States: Request for the 
establishment of a panel (WT/DS427/11 and WT/DS427/11 /Corr.1)  
5.1.  The Chairman  drew attention to the communication from the United  States contained in 
documents WT/DS427/11 and Corr.1 and he invited the represe ntative of the United  States to 
speak.  
5.2.  The representative of the United  States  said that, on 25  September  2013, the DSB had 
adopted its recommendations and rulings in this dispute. Members would  recall the DSB's findings 
that China's anti -dumping and count ervailing duty measures on US broiler products had breached 
a number of China's obligations under the Anti -Dumping and SCM Agreements. The United  States 
and China had agreed that the reasonable period of time for China to implement the findings 
would be 9  months and 14  days from the adoption of the panel report, thus expiring on 
9 July 2014. On or about that date, China's Ministry of Commerce (MOFCOM) had issued a 
re-determination that continued the imposition of anti -dumping and countervailing duties on 
imports of US broiler products. The United  States considered that China had failed to bring its 
measures into conformity with the covered agreements, and the United  States was accordingly 
seeking recourse to Article  21.5 of the DSU. It appeared, as had been detailed in the US Panel 
Request, that MOFCOM's re -determination was inconsistent with a number of China's obligations 
under the Anti -Dumping and SCM Agreements. For example: (i) MOFCOM's analysis of the alleged 
price effects of imports under investigation  and the findings of adverse impact by imports on the 
domestic industry had not involved an objective examination of the record and had not been based 
on positive evidence; (ii) MOFCOM's determination that subject imports were causing injury to the 
domesti c industry had not been based on an examination of all relevant evidence, including that 
subject import volume did not increase at the expense of the domestic industry and that a large 
portion of subject imports consisted of products that could not have be en injurious, and was based 
on MOFCOM's flawed price and impact analyses; (iii) MOFCOM had not provided interested parties 
timely opportunities to see all non -confidential information or provide notice of the information it 
required; (iv) MOFCOM had failed  to inform interested parties of the essential facts under 
consideration which formed its basis to apply anti -dumping and countervailing duties; (v) MOFCOM 
had failed to set forth sufficient detail in its findings and conclusions on material issues of law and 
fact; and (vi) MOFCOM had failed to properly calculate the purported anti -dumping margins for US 
producers and exporters by acting inconsistently with a number of obligations, including those 
relating to the cost of production methodologies it employed , the use of facts available, and the 
calculation of rates for producers not under examination. Many of these issues had been raised in 
prior WTO disputes concerning the use of trade remedy measures by China, and had been found to 
be inconsistent with China's obligations. For these reasons, the United States sought recourse to 
Article  21.5 of the DSU and requested that the DSB refer the matter set out in the US panel 
request to the original Panel, wherever possible. Pursuant to the agreement on procedures 
between China and the United  States, China would not object to the referral to the original panel 
at the present meeting.  
5.3.  The representative of China  said that her country had received the US request for 
consultations in this dispute on 10  May 2016. China h ad engaged constructively and in good faith 
in the consultations held on 25  May (Beijing time) through video conference. China was 
disappointed that the United  States requested a panel to be established under Article  21.5 of the 
DSU. As it had informed the  DSB in July  2014, in order to implement the DSB's recommendations 
and rulings in this dispute, China had conducted reinvestigation on broiler products from the 
United  States and had announced the determination of reinvestigation before the expiry of the 
reasonable period of time. China believed that its challenged measures were fully in compliance 
with the WTO rules. Pursuant to the Agreed Procedures under Articles  21 and  22 of the DSU WT/DSB/M/380  
 
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 between China and the United  States, China accepted the establishment o f an Article  21.5 panel at 
the present meeting.  
5.4.  The DSB took note  of the statements and agreed , pursuant to Article  21.5 of the DSU, to 
refer to the original Panel, if possible, the matter raised by the United  States in documents 
WT/DS427/11 and Corr.1. Th e Panel would have standard terms of reference.  
5.5.  The representatives of Canada , the European  Union  and Japan  reserved their third -party 
rights to participate in the Panel's proceedings.  
6  UNITED  STATES – MEASURES CONCERNING THE IMPORTATION, MAR KETING AND 
SALE  OF TUNA AND TUNA PRO DUCTS  
A.  Second recourse to Article  21.5 of the DSU by Mexico: Request for the establishment 
of a panel (WT/DS381/38)  
6.1.  The Chairman  drew attention to the communication from Mexico contained in document 
WT/DS381/38 and he invited the re presentative of Mexico to speak.  
6.2.  The representative of Mexico  said that for almost 30  years, Mexican tuna products had been 
prevented from entering the US market despite Mexico repeatedly demonstrating that the US 
measures on labelling tuna as "dolphin -safe" were discriminatory. The measures continued to fail 
to comply with WTO rules, without regard for the true impact on dolphins of fishing methods other 
than those used by the Mexican tuna fleet. In October  2008, Mexico had initiated proceedings 
against th e US measures. After approximately eight  years of contention, the United  States had still 
not brought its measures into conformity. This impinges on the "prompt settlement" of disputes 
and "prompt compliance" with the DSB rulings and recommendations under Articles  3.3 and  21.1 
of the DSU. Mexico recalled that on 23  March  2016, the United  States had published a notice in its 
Federal Register revising the implementing regulations (the 2016 Rule), providing Mexico with one 
day's notice of this – in other words  without giving proper notice. Mexico believed that this 
measure failed to comply with the US obligations and did not resolve the tuna dispute. Instead, it 
preserved the status quo of discrimination against Mexican exports.  
6.3.  On 11  April 2016, the United  States, without first requesting consultations with Mexico, 
requested the establishment of a panel pursuant to Article  21.5 of the DSU in order to determine 
the consistency of the revised Tuna measure. The Panel had been established at the 9  May 2016 
DSB meet ing had been constituted on 27  May 2016. On 13  May 2016, Mexico had requested 
consultations with the United  States. However, these consultations had not settled the dispute. 
Consequently, on 9  June 2016 Mexico had requested the establishment of a panel pur suant to 
Article  21.5 of the DSU (WT/DS381/38). This was Mexico's second recourse to this Article in this 
dispute. Therefore, in accordance with Article  9.3 of the DSU, Mexico was requesting the 
establishment of a panel and noted that since these two compl aints related to the same issue, "to 
the greatest extent possible the same persons shall serve as panelists on each of the separate 
panels and the timetable for the panel process in such disputes shall be harmonized ". 
6.4.  The representative of the United  State s said that his country did not object to Mexico's panel 
request. Indeed, its only wish was that Mexico had requested this panel several months ago. As it 
had discussed several times, the United  States had amended the US dolphin safe labeling measure 
in a manner that directly addressed the DSB's recommendations and rulings, and brought the 
United  States into compliance with its WTO obligations. The United  States had discussed the rule 
with Mexico on a number of occasions and had expected that, if Mexico dis agreed that the 
measure brought the United  States into compliance, Mexico would refer the matter to a 
compliance panel. However, for several months, Mexico had indicated that it was not prepared to 
refer the matter of compliance back to a compliance panel.  To the contrary, Mexico had insisted 
that the arbitration under Article  22.6 of the DSU to review Mexico's request for authorization to 
suspend concessions must move forward immediately and at the DSB meeting on 23  March  2016, 
Mexico had said that it cons idered that the US compliance action was not "legally pertinent" for the 
arbitration. In short, Mexico had sought to avoid the fact that the United  States had now changed 
its measure to come into compliance with its WTO obligations and instead proceeded as  though 
the measure at issue were unchanged. As a result, in April, the United  States had taken the 
unusual step of requesting that the DSB establish a compliance panel pursuant to Article  21.5 of WT/D SB/M/380  
 
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 the DSU to confirm that the United  States had brought its m easure into compliance with the DSB's 
recommendations and rulings. That panel had been established at the DSB meeting on 
9 May 2016. As it had consistently stated, the United  States desired to bring this dispute to a close 
as soon as possible and surely di d not seek further delay. The United  States therefore looked 
forward to moving forward promptly with the compliance review pursuant to Article  21.5 of the 
DSU and to more cooperation on procedural matters going forward. To be clear, most Mexican 
tuna was n ot eligible for the dolphin -safe label because of the manner in which most Mexican 
vessels had chosen to fish for tuna. The fleets of other nations had abandoned the practice, but 
those Mexican vessels had chosen to employ a method of fishing, setting on d olphins, that was 
recognized to pose a particular risk to dolphins. Mexico's preferred fishing method involved 
deliberately chasing dolphins and capturing them. In so doing, it may result in dolphins being killed 
or seriously injured, separating dolphin ca lves from their mothers, reducing reproduction rates, 
and other harms. Simply put, tuna caught using this damaging fishing method was clearly not 
"dolphin safe," and it would be misleading to consumers to claim that it was. As such, denying 
eligibility to the "dolphin safe" label to tuna product produced in a manner that by its very nature 
was harmful to dolphins was not discriminatory and was not inconsistent with the WTO Agreement.  
6.5.  The representative of Mexico  said that his delegation had not intend ed to intervene at this 
point, but felt compelled to do so in order to clarify certain issues in response to the US statement. 
The United  States had stated that Mexico should have requested the panel "several months ago". 
However, the US measure had been publish ed on 23  March  2016, which was four months ago – 
the same four months during which Mexico had waited for the ruling in the arbitration proceedings 
under Article  22.6 of the DSU. As the complainant, Mexico would have liked it if the haste 
suggested by the U nited States had also been in October  2008, almost eight  years ago. With 
regard to the correct sequencing of Article  21.5 proceedings and Article  22.6 arbitration, Mexico's 
position on this matter was reflected in the minutes of the 22  April 2016 DSB meeti ng 
(WT/DSB/M/377). Mexico's position on this matter was also reflected in the minutes of the 
9 May 2016 DSB  meeting (WT/DSB/M/378). Therefore, there was no need to reiterate Mexico's 
position at the present meeting.  
6.6.  Regarding the substantive comments on la belling, Mexico wished to draw Members' attention 
to footnote  804 of the Appellate Body's report in the Article  21.5 proceedings, circulated on 
20 November  2015, which referred to evidence presented by Mexico on the subject of dolphin 
mortalities caused by  fishing methods other than purse seine nets and in other areas outside the 
Eastern Tropical Pacific Ocean. He did not wish to read the entire quote, but would only highlight a 
few ex cerpts . For example: in certain oceans more than 2,000  dolphins were kill ed; in others 
10,000  cetaceans lost their lives. In some parts of the Pacific Ocean, 18,000 dolphins were killed 
and etc. The aim of the tuna measure was a zero -tolerance approach to dolphin mortalities which 
meant "none". According to the aforementioned f ootnote, the evidence was clear: outside the 
Eastern Tropical Pacific Ocean and with different fishing methods, dolphins were killed and still the 
United  States granted the label.  
6.7.  The DSB took note  of the statements and agreed , pursuant to Article  21.5 of the DSU, to 
refer to the original Panel, if possible, the matter raised by Mexico in document WT/DS381/38. 
The Panel would have standard terms of reference.  
6.8.  The representatives of Australia , Brazil , Canada , China , Guatemala , the European  Union , 
Japan , Korea, New Zealand  and Norway  reserved their third -party rights to participate in the 
Panel's proceedings.  
7  KOREA – ANTI -DUMPING DUTIES ON PN EUMATIC VALVES FROM JAPAN  
A.  Request for the establishment of a panel by Japan (WT/DS504/2)  
7.1.  The Chairman  drew attentio n to the communication from Japan contained in document 
WT/DS504/2, and he invited the representative of Japan to speak.  
7.2.  The representative of Japan  said that this dispute concerned Korea's measures imposing 
antidumping duties on imports of pneumatic valve s originating from Japan. Japan considered 
Korea's measures to be inconsistent with Korea's obligations under the GATT  1994 and the 
AntiDumping Agreement, as explained in Japan's panel request. In particular, Japan considered WT/DSB/M/380  
 
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 that Korea's injury and causat ion analyses, including its analyses of the volume of imports under 
investigation, the effects of imports under investigation on prices and the impact of the imports 
under investigation on the domestic industry, as well as the alleged demonstration of a ca usal 
relationship between the imports under investigation and the alleged injury to the domestic 
industry including non -attribution analysis, did not involve an objective examination on the basis 
of all relevant positive evidence and thus were not consiste nt with the obligations set forth in 
Articles  3.1, 3.2, 3.4 and  3.5 of the Anti -Dumping Agreement. Japan also considered that Korea 
had failed to make an objective examination based on positive evidence in defining the domestic 
industry as required under A rticles  3.1 and  4.1 of the Anti -Dumping Agreement. Furthermore, 
Japan considered that Korea had failed to follow several procedural obligations set forth in 
Articles  6.5, 6.5.1, 6.9, 12.2 and  12.2.2 of the Anti -Dumping Agreement. Japan had requested 
consul tations on 15  March  2016 and had entered into consultations with Korea on 28  April with a 
view to reaching a mutually satisfactory solution. Unfortunately, the parties had been unable to 
resolve the differences. Japan therefore requested, pursuant to Artic le 6 of the DSU, that a panel 
be established to examine the matter as set out in its panel request with standard terms of 
reference in accordance with Article  7.1 of the DSU.  
7.3.  The representative of Korea  said that his country regretted that Japan had chosen  to request 
the establishment of a panel with regard to this matter. As referred to in Japan's request for the 
establishment of a panel, Korea and Japan had held consultations in April  2016 with a view to 
reaching mutually agreeable results. However, both sides had failed to resolve the dispute. 
Pneumatic valves at issue were one of the most important products for manufacturing -based 
economies, such as Korea, with great impact on a wide range of industries. During recent years, 
the amount of dumped imports of pneumatic transmission valves from Japan had rapidly increased 
in the Korean valve market. Thus, the Korea Trade Commission had conducted analyses on these 
increases and their market share. The analyses had been based on an objective examination over 
a sufficient period of time pursuant to the Anti -Dumping Agreement. The Anti -Dumping Agreement 
provided that Members had the right to take anti -dumping measures necessary for the protection 
of a domestic industry injured from significant increase of dumped i mports. Korea had done so in 
response to pneumatic valves from Japan, based on the Korea Trade Commission's objective 
examination. Moreover, Korea had made the final report of essential facts publicly available to the 
interested parties according to Articl e 6 of the Anti -Dumping Agreement prior to imposing anti -
dumping dut ies on pneumatic valves from Japan. Korea had also engaged constructively with 
Japan on this matter, and had diligently responded to Japan's requests for information in detail. 
Korea belie ved it had adopted and implemented its measures in a transparent and non -
discriminatory manner, and in full compliance with its WTO obligations. Korea, therefore, was not 
in a position to agree to the establishment of a panel at the present meeting.  
7.4.  The DS B took note  of the statements and agreed  to revert to this matter.  
8  UNITED  STATES – COUNTERVAILING MEASU RES ON SUPERCALENDER ED PAPER FROM 
CANADA  
A.  Request for the establishment of a panel by Canada (WT/DS505/2)  
8.1.  The Chairman  drew attention to the communica tion from Canada contained in document 
WT/DS505/2, and he invited the representative of Canada to speak.  
8.2.  The representative of Canada  said that, on 19  March  2015, the United  States Department of 
Commerce had announced the initiation of an investigation int o the alleged subsidization of 
supercalendered paper from Canada. The Department of Commerce had made its preliminary and 
final determinations on 28  July and 14  October  2015, respectively. These determinations had 
resulted in the imposition of countervaili ng duties of up to 20.18% on imports of supercalendered 
paper from Canada. As outlined in its request for the establishment of a panel, contained in the 
background documentation submitted for this item, Canada considered that the US measures were 
inconsist ent with its obligations under the SCM Agreement and the GATT  1994. In particular, 
Canada considered that the United  States had acted inconsistently with its obligations under these 
Agreements by improperly initiating an investigation, improperly conductin g the underlying 
investigation, improperly determining countervailing duty rates, and improperly initiating 
investigations against new subsidy allegations in the expedited reviews. Canada also considered 
that the ongoing US conduct of applying adverse fact s available to information discovered during 
verification was inconsistent with the obligations in these Agreements. The duties imposed as a WT/D SB/M/380  
 
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 result of US countervailing measures were having a negative impact on producers of 
supercalendered paper in various  Canadian provinces. Canada had held consultations with the 
United  States on these measures on 4  May 2015. Unfortunately, the parties had been unable to 
resolve their differences. Consequently, Canada was, at the present meeting, requesting that a 
panel be  established to examine this matter with standard terms of reference. Canada remained 
open to continuing its dialogue with the United  States in a manner that would address Canada's 
concerns.  
8.3.  The representative of the United  States  said that his country was  disappointed that Canada 
had chosen to request the establishment of a panel with regard to this matter. The underlying 
trade issue here was that Canada had decided to provide massive subsidies to a new Canadian 
paper factory that clearly had been establis hed for the purpose of selling into the US market. 
These subsidies and the resulting low -priced exports had harmed US workers and companies. For 
more than two years, the United  States had asked Canada to address the harm caused by 
Canadian subsidies, but C anada had refused. It was ironic now for Canada to invoke WTO dispute 
settlement to challenge a legitimate US response to the trade problem caused by Canada's own 
policy choices. Further, without prejudice to whether each item in Canada's panel request was  a 
measure, the United  States had explained to Canada that the measures identified in Canada's 
request were fully consistent with US obligations under the WTO Agreement. For those reasons, 
the United  States was not in a position to agree to the establishme nt of a panel at the present 
meeting.  
8.4.  The DSB took note  of the statements and agreed  to revert to this matter.  
9  COLOMBIA – MEASURES RELATING TO  THE IMPORTATION OF T EXTILES, APPAREL 
AND FOOTWEAR  
A.  Report of the Appellate Body (WT/DS461/AB/R and WT/DS461/AB /R/Add.1) and 
Report of the Panel (WT/DS461/R and WT/DS461/R /Add.1)  
9.1.  The Chairman  drew attention to the communication from the Appellate Body contained in 
document WT/DS461/9 transmitting the Appellate Body Report in the dispute: "Colombia – 
Measures Relati ng to the Importation of Textiles, Apparel and Footwear", which had been 
circulated on 7  June 2016 in documents WT/DS461/AB/R and  Add.1. He reminded delegations that 
the Appellate Body Report and the Panel Report pertaining to this dispute had been circula ted as 
unrestricted documents. As 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 express their views on an Appellate Body report".  
9.2.  The representative of Panama  said t hat her country than ked the Appellate Body, the 
members of the Panel and the Secretariat for their work and for assisting the parties in these 
proceedings. Panama welcomed the recent Appellate Body Report in this dispute, which confirmed 
the Panel's decision that the compound  tariff imposed by Colombia on textiles, apparel and 
footwear was inconsistent with Article II of the GATT and exceeded Colombia's bound tariff rates in 
the instances set out by the Panel. This decision reaffirmed Panama's confidence in the WTO 
dispute set tlement system. Panama also welcomed the Appellate Body's confirmation that the 
measure was not justified under the exceptions of public morals and necessity. Nonetheless, 
Panama wished to express some systemic concerns regarding the Appellate Body's reaso ning in 
some cases, which could be misinterpreted as a relaxation of the disciplines of Article  XX of the 
GATT  1994, in particular where a respondent alleged that a measure had been implemented in 
order to protect "public morals". Panama believed that a si mple claim that a measure had been 
designed to tackle a problem of public morals, or the consideration of the possibility that certain 
practices covered by the measure could relate to the objective of public morals, were not sufficient 
to assume that a res pondent had demonstrated that the measure was designed to achieve the 
alleged objective. Such an interpretation would partially shift the burden of proof onto the 
complainant, above all, and in all cases potentially covered by the measure. This could lead to 
abuses through the introduction of trade restrictive measures, which violated the basic principles 
of the WTO. Besides that clarification, Panama agreed with the recommendations of the Panel and 
the Appellate Body Reports and hoped that Colombia would b ring its measure into conformity with 
WTO law as soon as possible, as required under Article  21.1 of the DSU. Taking into account that WT/DSB/M/380  
 
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 under Colombian law, the compound tariff should expire on 30  July 2016, Panama hoped that 
Colombia would take advantage o f this situation to inform the next DSB meeting on 21  July 2016 
that it would comply with the DSB's rulings and recommendations by 31  July 2016.  
9.3.  The representative of Colombia  said that his country thanked the Appellate Body and the 
Panel for their respect ive Reports, as well as the relevant Secretariats for their support during 
these proceedings. The proceedings had focused on a problem which was increasingly serious for 
Colombia and many other Members - the use of foreign trade operations to launder asset s and 
finance terrorism. Illicit trade was a transnational problem and the most effective way of 
combatting this scourge, as Colombia had repeatedly stated, was through cooperation between 
countries. The burden of combatting illicit trade could not fall so lely on the importing country, 
especially because this type of operation was dependent upon the complicity of exporters and 
weak supervision in countries in which this trade originated or through which it transited. The 
problem, in this particular dispute,  was the use of apparel and footwear imports at artificially low 
prices to launder assets. The contested measure sought to discourage these imports, thereby 
reducing opportunities to launder illicit money. Both the Panel and the Appellate Body had found 
that, in the case of Colombia, combatting money laundering was an important political objective 
directed at protecting public morals, a situation that reflected societal interests that could be 
described as vital and important in the highest degree for Membe rs. The Appellate Body Report in 
this dispute made substantive modification to the Panel's analysis, which underlined the value of 
the appeal proceedings.  
9.4.  At first, the Appellate Body had accepted Colombia's argument that the Panel had made an 
error under Article  11 of the DSU, using false logic in its analysis of the arguments presented by 
Colombia with regard to Article  II of the GATT 1994.6 Nevertheless, Colombia regretted that the 
Appellate Body had not accepted its argument that Article  II did not cove r illicit trade. As Colombia 
had explained before the Panel and the Appellate  Body, with regard to investment, several courts 
had clearly ruled that bilateral or regional investment agreements did not cover foreign investment 
with illicit origins or object ives. Colombia believed that it would be inconsistent if this had been any 
different in the WTO; or if the covered agreements could be used to protect trade practices, the 
origins and objectives of which not only violated the law, but also threatened globa l peace and 
security (e.g. money laundering or financing terrorism). In spite of the above, it must be 
highlighted that the Appellate Body had "remark[ed] that [its] analysis … should not be understood 
to suggest that Members cannot adopt measures seeking to combat money laundering" and clearly 
had established "[a] Members' right to adopt and pursue measures seeking to address concerns 
relating to money laundering" in accordance with the general exceptions contained in Article  XX of 
the GATT  1994.1 The Appe llate Body had also accepted Colombia's arguments and had reversed 
the Panel's findings under Article  XX(a) and  (d) of the GATT  1994. The Appellate Body had 
corrected the excessively rigorous standard applied by the Panel. After having examined the 
Colombi an measure under the correct standard, the Appellate Body had confirmed Colombia's 
claim that the compound tariff was capable of combating money laundering, such that there was a 
relationship between that measure and the protection of public morals. It had  also determined that 
the compound tariff was capable of securing compliance with Article  323 of Colombia's Criminal 
Code, such that there was a relationship between that measure and securing compliance with this 
provision.  
9.5.  In its "necessity" analysis, the  Appellate Body had determined that Colombia's measure was 
not only capable of contributing to its objective, but also contributed to the objective of combatting 
money laundering, as had been shown by the Panel and reiterated by the Appellate Body. This 
finding was supported by, among other things, the Panel's findings that: "it cannot be ruled out 
that the importation of goods at prices below the thresholds established in Decree No.  456 could, 
in practice, reflect "artificially low" prices that do not refl ect market conditions"; "the information 
available suggests that the undervaluation of imports is, in fact, one of the methods used for 
money laundering detected by the Colombian authorities"; "since the compound tariff entered into 
force, Colombian import s of the products in question have declined and average import prices 
have increased"; and, "the compound tariff could reduce the incentives for importing textile 
products, apparel and footwear at prices below the thresholds laid down in Decree No.  456". On 
that basis, the Appellate Body had concluded that, "… some goods priced at or below the 
thresholds could be imported into Colombia at artificially low prices for money laundering 
purposes, and would thus be subject to the disincentive created by the high er specific duties that 
                                                
6 Appellate Body  Report, "Colombia – Textiles ", para. 5.47. WT/D SB/M/380  
 
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 apply to these goods. Therefore, we consider that these findings establish the Panel's recognition 
that there may be at least some contribution by the measure to the objective of comba tting money 
laundering.7"  
9.6.  Unfortunately, the Ap pellate Body had concluded that Colombia had not successfully 
demonstrated that the compound tariff was a "necessary" measure. Elements of this final part of 
the analysis of "necessity" were of concern to Colombia and should also be of concern to other 
Members. The  Appellate Body had ruled against Colombia on the issue of "necessity" because it 
had not found "sufficient clarity" in the Panel's reasoning regarding the degree of the measure's 
contribution and the degree of the measure's trade -restrictiveness,  and as such "a proper weighing 
and balancing that could yield a conclusion that the measure is 'necessary' could not be 
conducted8." Colombia found it extremely worrying that the Panel's lack of clarity on the degree  of 
contribution and the degree of rest rictiveness would lead to a ruling against the regulating country 
in the appeal. If "a proper weighing and balancing" had not been possible in the first instance, and 
Panama had not succeeded in demonstrating the existence of an alternative measure achievi ng the 
same objective whilst being less restrictive on trade, the suitable result should have been for the 
Appellate Body to rule in favour of the "necessity" of the measure. Finally, Colombia also regretted 
that the Panel's findings in relation to the fir st paragraph of Article  XX had not been declared moot 
by the Appellate Body. This analysis by the Panel contained countless errors. Nonetheless, 
Colombia understood that by abstaining from taking a stance on this part of the Report, the 
Appellate Body had made it clear that it did not concur with the Panel's assessment. Without 
prejudice to the above comments, in accordance with the procedures and timelines established in 
the DSU, Colombia intended to implement the DSB's recommendations and rulings in this dispute. 
The implementation of these recommendations and rulings would require rigorous analysis and 
administrative coordination from the Colombian State in order to bring the disputed measure into 
conformity with the obligations under the GATT 1994.  
9.7.  The D SB took note  of the statements and adopted  the Appellate Body Report contained in 
documents WT/DS461/AB/R and Add.1 and the Panel Report contained in documents WT/DS461/R 
and Add.1, as modified by the Appellate Body Report.  
10  PRACTICES AND PROCED URES IN THE CONDUCT OF WTO DISPU TES 
A.  Statement by Canada  
10.1.   The Chairman  said that this item was on the Agenda of the present meeting at the request 
of Canada and he invited the representative of Canada to speak.  
10.2.   The representative of Canada  said that, as delegations were aware, the dispute settlement 
system was straining under the increasing demand and complexity of the disputes brought before 
it. Members had been discussing these challenges for several years now. DSB delegates were also 
aware that after almost 20  years of discussion in the DSB in Special Session, Members had not 
managed to reach agreement on even the most modest changes to the DSU to improve and clarify 
the operation of the system. Most of the proposals discussed in the Special Session would do 
nothin g to alleviate the current strain on the system, and in fact many of them would probably 
exacerbate these strains. But Members' inability to reach consensus in the Special Session on any 
reforms did not bode well for Members' ability to reach consensus on the kinds of responses that 
were now required to address the workload challenges. One of the main achievements of the 
Uruguay Round was indeed to codify the dispute settlement procedures in a binding treaty 
instrument and to create the DSB to administer th e rules and procedures. These developments 
were in large part responsible for the extraordinary success of the system, especially in delivering 
the security and predictability of dispute settlement in the WTO. While this success was 
remarkable and unparall eled, perhaps one of the unintended consequences of making the dispute 
settlement rules both treaty -based and subject to multilateral consensus decision -making was that 
it had limited the opportunity for the rules and procedures to evolve organically in re sponse to 
experience, the changing nature of disputes, and the changing expectations of Members, as they 
apparently used to do under the GATT dispute settlement system. The Secretariat did its best to 
propose new ideas for incremental change through ad  hoc modifications to the Working Procedures 
in specific disputes. But Members also knew that it was difficult to implement new ideas this way 
                                                
7 Appellate Body Report, "Colombia  Textiles ", para. 5.106.  
8 Appellate Body Report, "Colombia  Textiles ", para. 5.116.  WT/DSB/M/380  
 
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 because in every dispute, at least one of the parties would always have the incentive to disagree 
with procedural inn ovations that might result in streamlining the process to the benefit of the 
other party.  
10.3.   Therefore, in response to both the workload challenges that were causing delays, and taking 
into account the deadlock in efforts to modify formally the DSU, Canada wa s, at the present 
meeting, proposing a different approach to developing new practices and procedures in the 
conduct of WTO disputes. Canada's approach was to create an informal framework for the 
development of procedural innovation that could take place bo th outside the bilateral context of 
specific disputes, and outside the multilateral context of discussions of changes to the DSU that 
would be binding on all Members. Using this framework, groups of Members would commit to 
trying out new ideas only with ot her Members who were also prepared to try them out. By 
agreeing to these changes outside of specific disputes, the pressure and opportunity to seek 
litigation advantage in a specific dispute was minimized. Anything these willing Members agreed to 
do in dis putes with each other would not be binding on Members who were not yet comfortable 
trying the new approaches. If certain practices did not work, or were not as beneficial as originally 
envisaged, they could simply be abandoned by those who had proposed and  had experimented 
with them. On the other hand, if they did work, in the longer run it would build confidence in their 
feasibility, could  be expanded to other Members, and could  eventually facilitate the codification in 
the DSU, once agreed by all Members.  In the room documents Canada had circulated, and that 
were available at the back of the room, Canada had set out both the framework and a few 
examples of the kinds of ideas that could be pursued in this way. Regarding the framework, Room 
Document number  1 contained a draft "Statement on a Mechanism for Developing, Documenting 
and Sharing Practices and Procedures in the Conduct of WTO Disputes". Canada, along with any 
Member that wanted to support this initiative, would formally deliver a final and joint ve rsion of 
that Statement at the July  2016 DSB meeting. The delivery of the Statement itself brought into 
existence an informal mechanism. The "mechanism" was essentially an invitation to develop novel 
practices in cooperation with other Members, to document  these practices, and to share these 
documented practices with other Members simply by circulating them as addenda to the 
Statement. Participation in the mechanism was essentially about learning from the circulated 
practices and procedures of other Members  and also circulating practices and procedures for the 
benefit of others. The Statement, at paragraph  6, invited the circulation of documented practices 
and procedures in at least three different formats.  
10.4.   First, paragraph  6(a) invited the circulation via t his mechanism of agreements between 
Members that set out their intentions to follow certain practices and procedures in their future 
disputes. These types of agreements would introduce more predictability than that which resulted 
through the use of ad -hoc dispute -specific procedural agreements, and would minimize the scope 
for opportunistic litigation tactics in specific disputes. Second, paragraph  6(b) invited the 
circulation via this mechanism of bilateral agreements made in specific disputes to bring to the 
attention of other Members models and examples of how to proceed in certain circumstances. The 
most prominent examples of this thus far were the so -called  Sequencing Agreements, and Canada 
would circulate at least one example of  a Sequencing Agreement at the launch of the mechanism. 
Third, paragraph  6(c) invited the circulation via this mechanism of sample, model or proposed 
practices and procedures for the purpose of raising awareness among other Members of new ideas 
for further discussion.  Canada woul d also circulate at least one example under this category upon 
the launch of the mechanism. Regarding the four documents containing  procedural agreements 
included in the package of room documents, these were examples of the types of agreements that 
would f all under paragraph  6(a) of the Statement. Canada hoped to be in a position to circulate, 
along  with a certain number of co -signatories, final versions of at least some of these documents 
at the same time that the final Statement was delivered at the July DSB meeting.  Canada would 
not explain them in detail at the present meeting but would be inviting delegations to join Canada 
for further discussion of them. The important point for the present meeting was that Canada was 
not proposing that the documents be  agreed by all Members, only that they be agreed by those 
Members that were prepared to indicate their intention to do the things set out in the documents. 
More importantly, these documents were provided as examples meant to inspire others to develop 
additional ideas for novel approaches.  
10.5.   Canada had put this item on the Agenda of the present meeting to bring this initiative to the 
attention of the DSB, not to seek Members' agreement or even necessarily to receive comment 
and reaction at the present meeting.  Over the course of the next three weeks, Canada would hold 
a series of meetings to discuss further both the main Statement and the proposed Practice WT/D SB/M/380  
 
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 Documents. Canada may also circulate additional draft practice documents for consideration. 
Canada invited  any delegation that wished to participate in these discussions to inform Canada 
before the end of that week, if they had not already done so. Participation in further discussion 
would be without prejudice to whether a Member ultimately endorsed the final Statement or any of 
the Practice Documents. Since endorsing the Statement did not create any additional obligations 
on the Members that endorsed it, Canada was hopeful that it could count on many Members 
endorsing  the Statement in July, and thereby demonst rating their support for a process of 
experimentation, documentation and sharing of practices and procedures that may allow more 
organic evolution of the system in response to the changing nature of disputes, and to the current 
workload challenges. Canada also hoped that Members would seriously consider signing on to 
some of the proposed Practice Documents and, more importantly, consider working with other 
Members to come up with ideas for additional practices and procedures, and that could be pursued 
throu gh the approach Canada had outlined at the present meeting. Canada looked forward to 
hearing from Members, and to working with others to move this forward.  
10.6.   The representative of Switzerland  said that his country welcomed and firmly supported 
Canada's init iative to share and identify best practices on dispute settlement. It was also a 
valuable opportunity for the less -experienced Members to become familiar with the operation of 
the dispute settlement system, and its unwritten state -of-the-art practices. Swi tzerland invited all 
Members to participate in the initiative as confidence -building on practices, and thereby to 
facilitate the codification of best practices in the DSB Special Session. Any practices that would 
contribute to easing the workload of the di spute settlement system w ere particularly welcomed 
and should be considered with priority. Switzerland expressed its gratitude to Canada for 
promoting this initiative with great competence, determination and endurance.  
10.7.   The representative of Australia  said that his country welcomed Canada's initiative in the 
development and circulation of a proposed "Mechanism for Developing, Documenting and Sharing 
Practices and Procedures in the Conduct of WTO Disputes". Australia considered that a formal 
information shari ng mechanism through the DSB would serve a useful transparency function for all 
Members. It would assist less -frequent users of the dispute settlement system to learn from the 
past practices and experience of more frequent users. The mechanism would also s upport 
Members who may wish to develop or experiment with new practices and procedures with the aim 
of improving the efficiency and operation of the dispute settlement system within the scope of the 
existing DSU rules. Australia hoped that, over time, such  a mechanism would incrementally allow 
for the evolution of common practices and procedures in WTO dispute settlement. This could assist 
in the development of more predictable and harmonized dispute settlement practices and reduce 
procedural delays and dis agreements. Australia acknowledged the ongoing efforts of the WTO 
Secretariat to streamline the dispute settlement processes and make them more efficient. All 
Members shared a responsibility to continue to work to support and improve the operation of the 
WTO dispute settlement system, and Australia encouraged all Members to give positive 
consideration to this proposed mechanism.  
10.8.   The representative of Chinese  Taipei  said that Chinese Taipei thanked Canada for its efforts 
and leadership in the discussions abo ut the potential improvement of dispute settlement practices 
and procedures. Chinese  Taipei believed that the approach proposed by Canada provided a good 
balance between procedural certainty and flexibility. It also laid the foundation for future 
discussio ns. Chinese  Taipei, therefore, supported Canada's initiative. Chinese  Taipei was willing to 
engage in discussions about the individual documents and encouraged other Members to give 
positive considerations to the initiative on these proposals.  
10.9.   The represen tative of New Zealand  said that her country thanked Canada for its work to 
date on leading this initiative, and agreed that enhanced transparency and information sharing 
could have a positive influence on the development of the dispute settlement system. N ew Zealand 
noted that the DSU itself reflected a range of practices and procedures that had been developed by 
parties to resolve disputes under the GATT  1947. In light of that background, and with 20  years of 
practice now developed under the WTO dispute se ttlement system, New  Zealand was interested to 
see the extent to which Canada's proposal to record and learn from dispute settlement practices 
may again be useful. In particular, New  Zealand was interested in exploring how Member -led 
initiatives such as th is could assist with relieving the current workload pressures faced by the DSB.  
10.10.   The representative of Brazil  said that his country thanked Canada for the work it had put 
into this initiative. Brazil was aware of how the ideas, contained in the documents di stributed at WT/DSB/M/380  
 
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 the present meeting, had evolved in the countless DSB Special Session meetings and numerous 
other meetings at the Canadian Mission and elsewhere. Brazil welcomed the efforts and the 
search, by all users of the dispute settlement system, for be tter practices and more streamlined 
and efficient procedures, provided they conformed to the DSU provisions. Brazil would consider 
carefully each suggestion and make appropriate comments at the next DSB meeting in July.  
10.11.   The representative of the European  Union said that the EU thanked Canada for its efforts 
in this area and appreciated the energy and time spent on this initiative. The EU would carefully 
study the documents distributed at the present meeting and may revert to this issue at future DSB 
meeting s. 
10.12.   The representative of Guatemala  said that his country supported the initiative and joined 
the previous speakers in thanking Canada for its efforts.  
10.13.   The representative of Chile said that her country thanked Canada for its dedication and 
efforts in seekin g to move ahead with a mechanism that would enable the sharing of practices 
related to dispute settlement procedures. Chile welcomed Canada's invitation to participate in the 
discussions. Chile would examine the documents circulated at the present meeting and would 
closely follow the discussions on this matter.  
10.14.   The representative of China  said that her country thanked Canada for its statement and for 
the documents it had circulated at the present meeting.  Given the importance of prompt and 
effective settlem ent of disputes to the well -functioning of the multilateral trading system, China 
welcomed Canada's initiative to share best practices and procedures in the conduct of disputes. 
China had participated in some meetings convened by Canada to discuss this iss ue. China noted 
that Members had agreed to negotiate to improve and clarify the DSU in the Special Session of the 
DSB. In China's view, when trying to share practices and procedures in regular DSB meetings, the 
scope of the discussion should be carefully a nd appropriately defined. The discussion should focus 
on what was common in many disputes and on what Members considered to be good practices. 
The discussion should not duplicate the work of the DSB Special Session. If any proposal or 
suggestion was shared  as a sample or model practice by only one or few Members, China believed 
that this would cause concerns in the DSB. China welcomed the clarification in paragraph  3 of the 
draft Statement proposed by Canada. However, in China's view, further assessment was  needed 
on its operation and possible impact on the system. For example, three proposals on the table 
covered the same issues as those under the DSU negotiations, but Members had not reached 
agreement on all those issues or all the elements of each issue. In that regard, China was 
concerned that it was still a question of whether the procedures in such a proposal were "sample" 
or "model". China hoped that any future discussions on this matter among Members would be 
inclusive in order to reflect the comments  of all Members and to help Members further assess this 
mechanism.  
10.15.   The representative of India said that his country thanked Canada for its statement made at 
the present meeting. India did not intend to offer any detailed comments and noted from Canada's 
statement the steps sought to address the workload issues. The sharing of experiences on existing 
dispute settlement procedures would definitely be useful for less -frequent users. India would 
revert to Canada's ideas in detail in the following days.  
10.16.   The rep resentative of Mexico  said that his country joined the previous speakers in thanking 
Canada for its efforts. Mexico would examine the documents submitted by Canada and would 
actively participate in the meetings.  
10.17.   The representative of Costa  Rica said that h is country joined the previous speakers in 
thanking Canada for its initiative. Costa Rica expressed its interest in the initiative and would 
follow the discussions with interest.  
10.18.   The representative of Korea  said that his country thanked Canada for its tire less efforts 
which went beyond the call of duty to try to improve the dispute settlement system. Korea would 
study the proposal carefully and provide its views at the next DSB meeting. Korea looked forward 
to engaging in the process.  WT/D SB/M/380  
 
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 10.19.   The representative of Indonesia  said that his country thanked Canada for its efforts in the 
initiative. Indonesia would carefully consider each of the items in the initiative and would revert to 
it at the next DSB meeting.  
10.20.   The representative of Argentina  said that his country w ished to join the previous speakers 
who thanked Canada for its tireless efforts on this matter. Argentina had participated in the 
previous meetings in this matter and would carefully examine the documents presented by 
Canada.  
10.21.   The representative of Panama  said that her country thanked Canada for its initiative and 
for the circulated documents which, in Panama's view, would contribute to improving the 
functioning of the dispute settlement system. Panama would continue to examine the documents 
and would contin ue to participate actively in discussions on this matter.  
10.22.   The representative of Nigeria  said that his country thanked Canada for the initiative and 
appreciated the series of meetings and consultations that it had organised and to  which the African 
Group h ad been invited. Nigeria noted Canada's statement and would refer Canada's proposal to 
the African Group for careful consideration. The African Group was always open to a 
wellfunctioning dispute settlement system and was concerned about the workload issue of the 
Appellate Body. The main issue for the African Group was access to the dispute settlement system, 
an issue that was still being discussed in the DSB Special Session. In Nigeria's view, trying to 
simplify the procedures as proposed in some of the pro posals could go a long way in addressing 
some of the immediate challenges facing the dispute settlement system.  
10.23.   The representative of the United  States  said that his country thanked Canada for providing 
copies of its proposals and for being willing to work  with Members. The United  States had some 
questions and was still reviewing those documents.  
10.24.   The representative of Viet Nam said that her country thanked Canada for its initiative. 
Viet Nam expressed its interest in joining Canada and other Members in the process of improving 
and streamlining the dispute settlement system.  
10.25.   The representative of Singapore  said that his country thanked Canada for its initiative. 
Singapore was studying the different documents that had been circulated and hoped to participate 
actively in the discussions that followed.  
10.26.   The representative of Honduras  said that her country thanked Canada for the documents 
and the highly valuable initiative. Honduras would transmit these documents to capital and was 
ready to work further on the init iative.  
10.27.   The representative of Uruguay  said that his country thanked Canada for its initiative. In 
Uruguay's view, the circulated documents constituted an important contribution to the Uruguay 
expressed its readiness to work on the basis of those documents . 
10.28.   The representative of Norway  said that her country thanked Canada for its initiative and 
looked forward to continued engagement in the discussions.  
10.29.   The representative of Peru said that his country thanked Canada for its efforts on its 
initiative. Peru wo uld closely examine Canada's initiative in order to provide its view on this 
matter.  
10.30.   The representative of Japan  said that his country thanked Canada and wished to engage in 
future discussions on this matter.  
10.31.   The representative of Hong Kong, China  said tha t Hong Kong, China thanked Canada for 
its initiative and for the documents circulated. Hong  Kong, China would carefully consider the 
documents and stood ready to participate in further discussions.  
10.32.   The representative of Colombia  said that his country thank ed Canada for its efforts on the 
initiative. Colombia would closely examine the documents and would revert to this matter at the 
next DSB meeting.  WT/DSB/M/380  
 
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 10.33.   The representative of Ukraine  said that his country joined the previous speakers in 
welcoming Canada's initia tive. Ukraine expressed its willingness to participate in the discussions.  
10.34.   The DSB took note  of the statements.  
11  STATEMENT BY THE CHA IRMAN REGARDING THE CONSULTATIONS ON APP ELLATE 
BODY MATTERS  
11.1.   The Chairman  said that, following up on his announcement at the previous DSB meeting, he 
had held informal consultations with Members on Appellate Body matters on 8  and 9  June 2016. 
He thanked the 14  delegations that had taken up the offer to meet with him, and said that he had 
found the exchange of views to be very us eful. In those consultations, he had asked delegations 
for their assessment of the current situation in the Appellate Body and had asked them to address 
two questions. First, he had asked delegations what they thought would be the best approach to 
fill the  Appellate Body vacancies as soon as possible, against the background of a growing 
workload in the Appellate Body. He had also asked delegations that, in light of the views expressed 
at the previous DSB meeting, whether they thought Members should and coul d make changes to 
the way they dealt with reappointments in the Appellate Body in future. He said that it was not 
possible to provide a full account of the views that had been expressed. He would therefore draw 
them together by offering his assessment of w here things stood on those questions. He said that 
he was making his assessment on his own responsibility and without prejudice to any Member's 
position on the serious and delicate matters under consideration. His assessment was that 
Members were not yet i n a position to move forward towards filling either of the two current 
vacancies in the Appellate Body. First, there was no agreement amongst Members to take any 
action to fill the vacancy created by the non -reappointment of the one Appellate Body member. 
Such agreement would be needed before Members could consider and decide on the process they 
would have to undertake to fill that vacancy.  
11.2.   Second, while the decision to appoint a new Appellate Body member was formally separate 
from the question of reappoint ment, the consultations had also revealed that the two current 
vacancies may need to be considered together. With regard to the issue of whether Members 
should and could adjust the way they dealt with reappointments in the future, he said that, in 
broachin g that question, many delegations had reiterated strongly held views, many of which had 
already been raised at the previous DSB meeting. He would therefore not repeat those views, as 
the full spectrum of views was on record. Having listened closely to dele gations, it appeared that 
Members were open to a discussion on the issues and options that had been raised. He had heard 
suggestions that the best way to proceed would be to initiate a dedicated process to discuss all 
these matters, if Members were to agre e. That concluded his statement on where things stood 
with regard to matters related to the Appellate Body that should be further considered by the DSB. 
In his view, if Members were to take the process forward in July, they would need to intensify their 
discussions on these matters with a view to putting themselves in a position to take decisions at 
the July DSB meeting. In that regard, delegations should bear in mind that the Agenda for the 
July DSB meeting would be closed on 8  July. He said that he remain ed available to listen to any 
views and suggestions that delegations may have regarding these matters.  
11.3.   The representative of Korea , speaking on behalf of Brazil , Canada , the European  Union , 
Guatemala , India, Indonesia , Israel , Jamaica , Korea , Mexico , Moroc co, Sri Lanka , Switzerland , 
Thailand  and Viet Nam said that, the mentioned countries strongly supported the rules -based 
multilateral trading system and reiterated their serious concerns about the recent decision by a 
Member regarding reappointment to the A ppellate Body. Dispute settlement was the central pillar 
of the multilateral trading system. The impartiality and independence of the Appellate Body was 
crucial to ensuring the proper functioning and credibility of the WTO dispute settlement mechanism 
and, in fact, of the entire multilateral trading system. While the mentioned countries recognized 
that a Member may disagree with reappointment, they were deeply worried that the reasons 
provided by a Member for disagreeing with the reappointment were undercut ting a basic premise 
that the rules -based WTO system was built upon: Members' trust. In particular, they wished to 
express grave concerns that linking reappointment of an Appellate Body member with rulings in 
specific cases was tantamount to interfering wi th the Appellate Body's deliberations and thus 
risked undermining its impartiality and independence. Moreover, singling out one Appellate Body 
member for criticisms directed at the Appellate Body reports was unjustifiable. The reports were 
those of the App ellate Body and not of an individual Appellate Body member. These concerns had 
been pointed out in unison by the sitting and former members of the Appellate Body. The WT/D SB/M/380  
 
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 mentioned countries agreed that such actions risked creating a dangerous precedent and sh ould 
not be repeated. They were also mindful of growing concerns over the possibility of a prolonged 
vacancy in the Appellate Body. In that regard, they supported the Chairman's efforts to find a 
solution in a balanced way. They looked forward to working w ith all Members to find a constructive 
path that addressed the systemic concerns raised by Members, bearing in mind the critical role 
that dispute settlement played in safeguarding the multilateral trading system. The group of 
countries reaffirmed their tr ust and confidence in the Appellate Body.  
11.4.   The representative of Korea  said that his country's concern, first and foremost, was about a 
large and influential WTO Member imposing its own views on the system, and the manner in which 
it did so. Whatever conce rn it wanted to address should have been voiced through earnest 
deliberations among Members, rather than th e way it was dealt with . A leading Member of the 
WTO and the dispute settlement system was expected to set an example by acting responsibly and 
const ructively. Creating a systemic problem that was more serious and fundamental than the one 
it was trying to fix was not an appropriate exercise of this important responsibility.  In its 
statement at the 23  May 2016 DSB meeting, the United States had pointed to four Appellate Body 
reports , none of which it had objected to its adoption , in order to justify its unilateral approach. 
Korea did not wish to engage in details of the disputes at the present meeting beyond what was 
necessary to demonstrate a single poi nt, namely that there could be, and in fact were, two sides to 
the story.  
11.5.   First, regarding the dispute: "Argentina – Measures Relating to Trade in Goods and 
Services" (DS453), it was stated that in the Appellate Body Report "more than two -thirds of the 
Appellate Body 's analysis – 46 pages – is in the nature of obiter  dicta". What the Member 
neglected to mention was that Panama had  actually appealed the Panel's interpretation and 
application of several key provisions of the GATS, including "treatment no less  favourable ", the 
legal matter in question analysed in the Appellate Body Report. Article  17.6 of the DSU directed 
the Appellate Body to review "issues of law covered in the panel report and legal interpretations 
developed by the panel ". Article  17.12 of t he DSU  required the Appellate Body to address each of 
the issues raised in the appeal . The Appellate Body 's interpretation of the GATS  provisions  
including the "treatment no less favourable" requirement was a legal interpretation developed by 
the panel. Korea expected that there were Members who would have questioned why t he Appellate 
Body had not address ed the matter, had the Appellate Body not done so . In fact, at the DSB 
meeting on 9  May 2016 where the Appellate Body Report had been adopted, the usefulne ss of the 
Appellate Body's ruling had been acknowledged by a Member as follows: "[R] egarding the 
'treatment no less favourable' standard to be applied under GATS Articles  II:1 and  XVII, we 
welcome the Appellate Body's clarification, at para graph  6.111, tha t the analysis should assess 
whether the measure at issue modifies the conditions of competition to the detriment of like 
services or service suppliers in question …". Moreover, Article  3.2 of the DSU made it clear that the 
dispute settlement mechanism serv ed to "clarify the existing provisions of [the covered] 
agreements ". Clarification of the agreements could be helpful in providing guidance to Members, 
traders and future panels. It may, contrary to what one Member implied, actually lessen the 
Appellate Bo dy's workload by promoting the predictability  of the agreements and lowering the 
desire or the need to re -litigate the same legal issues.  
11.6.   Second, regarding the dispute: "India – Measures Concerning the Importation of Certain 
Agricultural Products" ( DS430),  it had been stated that " the appellate report engaged in a lengthy 
abstract discussion of a provision of the SPS Agreement without ever tying that discussion to an 
issue on appeal ". The "abstract discussion " that was being criticized was the Appellate Bod y's 
overview of Article  6 of the SPS Agreement.9 In this dispute, India had specifically appeal ed the 
issue of the relationship between Article s 6.1 and 6.3 of the SPS Agreement.10 The Appellate 
Body's transgression, according to one Member, was that it looked more broadly at Article  6 before 
turning to the specific interpretative issue raised by India.  Why? The following was the Appellate 
Body's reasoning for doing so: " Before addressing this interpretative issue  [raised by India] , we 
seek to situate the  relationship between Articles  6.1 and  6.3 within the broader scheme of 
Article  6. We think it useful  to begin by considering the content and structure of Article  6 as a 
whole, and the relationship  among its three paragraphs ".11 "[T]he considerations above show the 
existence of important common elements  throughout Article  6, which reveal the interlinkages that 
                                                
9 Statement by the United  States at the Meeting of the WTO Dispute Settlement Body, 19  June 2015. 
10 Notification of an Appeal by India, para. 11.d.  
11 Report of the Appellate Body, para. 5.129  WT/DSB/M/380  
 
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 exist among the paragraphs of this  provision."12 The argument the United  States had presented 
before the Panel was: " Each of the three paragraphs under Ar ticle 6 should be read together. That 
is, each paragraph provides context for the other, and Article  6 must be read so that it works as a 
coherent whole, while the language in each of the three paragraphs is respected ".13 Korea would 
let these words speak f or themselves.  
11.7.   Third, regarding the dispute: "United  States – Countervailing Duty Measures on Certain 
Products from China"(DS437), it had been stated that the " approach [in the appellate report] 
suggests that panels and the Appellate Body are to conduct in dependent investigations and apply 
new legal standards, regardless of what either party actually argues to the panel or Appellate 
Body". This vague criticism avoided mention ing that the Appellate Body had in fact declined to 
complete the analysis with resp ect to many claims because it did not consider that "the 
participants ha [d] addressed sufficiently  … the issues that [the AB]  might need to examine if [it] 
were to complete the legal analysis ".14 With respect to a limited number of other claims, the 
Appella te Body had completed the analysis on the basis of undisputed facts and the factual 
findings of the Panel. The Appellate Body had sought clarification of undisputed facts at the oral 
hearing, but Korea failed to see how this amounted to conducting "indepen dent investigations ". 
11.8.   Fourth, regarding the dispute: "United States – Countervailing and Anti -dumping Measures 
on Certain Products from China"(DS449), it had been claimed that the Appellate Body report 
"risk[ed] turning the WTO dispute settlement system in to one that would substitute the judgment 
of WTO adjudicators for that of a Member 's domestic legal system as to what is lawful under that 
Member 's domestic law ". On ascertaining the meaning of domestic  law, the United  States was 
certainly entitled to its approach, which was that it should be assessed in accordance with the 
domestic legal system, including US constitutional principles. On the other hand, the Appellate 
Body Report took the following view: "[I] n ascertaining the meaning of municipal law, a pa nel 
should undertake  a holistic assessment of all relevant elements, starting with the text of the law 
and including, but  not limited to, relevant practices of administering agencies…All of these  
assessments are subject to the circumstances of each case, i ncluding the national legal system in  
which the municipal law operates".15 Korea believed that this approach was no less valid than the 
one argued by a Member. The WTO Agreements revealed no preference as to how the meaning of 
municipal law should be ascert ained. Korea failed to see how subjecting the Appellate Body's 
assessments on the meaning of municipal law "to the circumstances of each case, including the 
national legal system in  which the municipal law operates " was tantamount to " substitut[ing] the 
judgment of WTO adjudicators for that of a Member's domestic legal system ". Moreover, the 
Appellate Body in this dispute had closely followed the approach that had been laid out repeatedly 
in previous disputes including the " US – Carbon Steel" dispute  (DS213 ). In stark contrast to the 
position it said it was taking now, the United  States had praised the Appellate Body 's ruling of the 
issues in the DS213 dispute, applauding it as a "model" decision. This demonstrated Korea's point 
yet again, that views on a le gal matter could, and indeed did, vary across different Members, and 
in this case even for a particular Member. It was telling that the Appellate Body had decided in the 
end not to complete the legal analysis.  
11.9.   Finally, Korea noted that it had been stated a t the previous DSB meeting that one Member 
was "concerned about the manner in which [an AB] member has served at oral hearings, including 
that the questions posed spent a considerable amount of time considering issues not on appeal or 
not focused on the re solution of the matter between the parties". This attempt to place constraints 
on Division members' questioning at the oral hearing was deeply troubling. Division  members 
asked questions in order to better understand  the issues in their appropriate context , and to 
provide participants a full opportunity to make their views known. Appellate Body members must 
be allowed that discretion. Indeed, the Appellate Body's engagement with the issues at oral 
hearing s was often praised by participants and third partici pants  alike. Nor were Appellate Body 
members prejudging the issues  by asking questions. In fact, the Appellate Body made  this point 
clearly at the start of each oral hearing. When the United States asserted  that " it is not difficult to 
ascertain from the q uestions posed by a member of a division at an oral hearing that the [Division] 
member is associated with the views expressed in an Appellate Body report related to those 
questions" , the United  States was  conceding, rather frankly, that it was engaging in speculat ion. 
                                                
12 Report of the Appellate Body, para. 5.1 41. 
13 Responses of the United States to the Panel’s Questions Following the First Panel Meeting, para. 83 . 
14 Report of the Appellate Body, para. 4.208 . 
15 Report of the Appellate Body, para. 4. 101. WT/D SB/M/380  
 
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 What was remarkable was not that a WTO Member was taking positions on legal matters, but that 
it found it acceptable to impose its own views on the Membership by ousting an adjudicator about 
whom it had developed a certain impression that the individual in question must take the fall for 
the Appellate Body's perceived failings. This approach was not only unbecoming of a leader of the 
multilateral trading system; it was also destabilizing.  
11.10.   With regard to the next steps, as had been stated in the  joint statement, Korea was 
mindful of the growing concerns over the possibility of a prolonged vacanc y in the Appellate Body. 
However, what was clear was that there existed a  fast and systemically appropriate way to avoid 
an unnecessary vacancy which also  prevent ed long-lasting  harm to the  system . Despite what 
Members may have been led to believe, it only took one Member, who actually played a leading 
role in building the rules -based multilateral trading system from which it continued to benefit, to 
ensure  that the system could continue to function effectively. Korea wished to take the opportunity 
to express its own continued willingness to consult Members and the DSB Chair in the interest of 
finding a balanced solution to the current situation.  
11.11.   The represe ntative of Morocco , speaking on behalf of the African Group, said that the 
African Group shared the concerns about the effects that the recent decision by a Member 
regarding reappointment of an Appellate Body may have had on the independence and impartiali ty 
of the Appellate Body. Linking reappointment to an Appellate Body member's decision in specific 
cases risked fundamentally undermining the integrity and the rule of law of the dispute settlement 
system. Singling out one Appellate Body member for critici sms directed at the Appellate Body for 
its report was contrary to Article  17 of the DSU, which provided that "[t]he proceedings of the 
Appellate Body shall be confidential" and "[o]pinions expressed in the [AB] report…shall be 
anonymous". Besides, Appellat e Body rulings were made by the Division as a whole and not by 
individual members. In addition, to ensure consistency and coherence in decision -making, 
Divisions that were selected to hear each appeal exchanged views with the other members of the 
Appellate  Body before finalizing their reports. The African Group also shared the concerns about a 
prolonged vacancy in the Appellate Body and expressed its support to the Chair's efforts to reach 
an equitable solution. The African Group stressed that this unpreced ented situation, if not 
corrected, risked undermining the trust that Members placed on the WTO dispute settlement 
system and the entire multilateral trading system. The African Group reaffirmed its confidence in 
the Appellate Body and its members and looke d forward to working with all WTO Members to 
address these systemic concerns.  
11.12.   The representative of Peru said that his country believed that the dispute settlement 
system was a fundamental pillar of the multilateral trading framework. The rules governing t he 
operation of the dispute settlement system were forged with a view to achieving a delicate 
balance, a key aspect of which was to ensure the smooth functioning and the full operational 
capacity of the Appellate Body. WTO Members were all responsible for this, and it was their task to 
ensure the timely appointment and/or reappointment of Appellate Body members. Peru therefore 
believed that it was essential for the time and energy spent on the current debate to be redirected 
towards the discussions on resto ring the full operational capacity of the Appellate  Body, in order 
for it to address, in a timely manner, the complaints brought before it. In  that regard, Peru 
believe d that it was vital to resume, as soon as possible, the process of finding suitable cand idates 
to fill the vacant positions in the Appellate Body. Peru  urged Members to be as flexible and 
pragmatic as possible, and to prioritize the interests of the global trading community represented 
in this Organization, with a view to selecting the two  members yet to be appointed to the Appellate 
Body as quickly as possible. Nevertheless, in the spirit of paragraph  13 of the Nairobi Declaration, 
Peru recognized that the growing number of differences and their increasing complexity present ed 
new and greater  challenges for the dispute settlement system. Therefore, Peru remained open to 
participating in any debate aimed at bringing about "improvements and clarifications" of the DSU, 
in accordance with the Doha Ministerial mandate, in order to address the chall enges and to 
reinforce the system.  
11.13.   The representative of the Dominican  Republic  said that his country thanked the Chairman 
for his report. The Dominican  Republic supported the joint statement made by Korea regarding 
these matters.  
11.14.   The representative of Oman said that his country noted that this was an important matter 
that had implications on what was being referred to as the jewel in the crown of the WTO. Oman 
considered that the dispute settlement system set the WTO apart from other international WT/DSB/M/380  
 
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 organiza tions and was a crucial component o f its success. Oman was a firm believer in the 
importance of having clear and unambiguous rules that govern ed the affairs of the WTO, including 
the appointment of WTO officers in the various WTO bodies. Oman noted that th e governing 
provision in the matter of appointments of persons to the Appellate Body was contained in 
Article  17.2 of the DSU. That provision provided for the reappointment of a member of the 
Appellate Body for a second term. As such, it implied that there  was no automatic reappointment. 
The provision, however, was silent regarding the reasons, if any, that a Member could  base its 
objections to reappointment. Oman believed that it was important for the credibility and 
functioning of the WTO that the Appella te Body remained objective, impartial, and that it enjoyed 
all the benefits and privileges normally granted to authorities exercising a judicial function. This 
was not the first time that the reappointment of an Appellate Body member was being objected to.  
In fact, Oman understood that this had happened once before. In Oman's view, it was high time to 
act in order to prevent such a situation from recurring and invited Members to consider replacing 
the two four -year terms of office for Appellate Body members  with a single  longer  term of office.  
11.15.   The representative of China  said that his country thanked the Chairman and the Selection 
Committee for their efforts regarding the selection process to replace Ms Zhang Yuejiao. Taking 
into account the concerns about t he Appellate Body vacancy and given the Appellate Body 
workload, China hoped that the Selection Committee and Members would successfully resolve this 
matter as soon as possible. China shared the views and concerns expressed by many Members 
with regard to t he issue of reappointment. The Appellate Body played a fundamental role under 
the WTO dispute settlement mechanism, which was an important and central pillar of the 
multilateral trading system. In order to enhance the security and predictability of the rul es of 
international trade embodied in the WTO Agreements, it was critical to safeguard the 
independence and impartiality of Appellate Body members. Linking the reappointment of an 
Appellate Body member to the rulings in specific cases could have serious co nsequences on the 
independence and impartiality of Appellate Body members and on the trust and confidence of 
Members in the Appellate Body. China invited Members to carefully consider the systemic impact 
of this matter, and urged them to maintain the effic iency, impartiality, stability and predictability 
of the system. At the same time, China also took note of the increasing concerns over the vacancy 
in the Appellate Body and its workload, and urged Members to resolve this situation as soon as 
possible  in order to safeguard the smooth operation of the Appellate Body and the dispute 
settlement system.  
11.16.   The representative of Turkey  said that, a lthough Members seemed to agree that the WTO 
dispute settlement system was the jewel in the crown , and that they  were r eady to do their u tmost 
to protect it, unfortunately they had not been able to reappoint one Appellate Body member. 
Turkey deeply regretted that this impasse continued. Given the current dispute settlement 
workload, Turkey was concerned that the Appellate Body may not be able to continue to operate 
with five members only.  Turkey had listened to the statements of the previous speakers and 
shared most of their concerns. As Turkey had stated at the previous DSB meeting, reappointment 
was not automatic and any Member could  break the consensus on reappointment. But such a veto 
should be based on professional or personal incompetency of Appellate Body members, not on the 
reports of the Appellate Body, which belonged to not only one Appellate Body member but to all  of 
them. Turkey, therefore, believed that the current reappointment problem should be resolved , in a 
constructive manner , taking into account the critical role of the Appellate Body for the dispute 
settlement system.  
11.17.   The representative of Chile said that her country thanked the Chair for his efforts on this 
matter and for his report. Chile had listened carefully to the systemic and institutional concerns 
expressed by Members regarding the need to preserve the independence of the Appellate Body. In 
Chile's view, such concerns demonstrated the importance of dialogue amongst Members and the 
importance of maintaining the proper functioning of the dispute settlement system. While the DSU 
was clear that Members were responsible for the reappointment of Appellate Body members, it did 
not provide further guidance in that respect. If all Members were concerned about this 
responsibility, they should look at defining long -term steps to address that concern. Chile stressed 
that it was important to fill the two A ppellate  Body vacancies as soon as possible, either together 
or separately. That process should be guided by pragmatism and should therefore not be linked to 
more general initiatives relating to the appointment process. The aim would be restore full 
membership to the Appellate Body as soon as possible. Chile was committed to the dispute 
settlement system and noted that trust formed the basis for any dispute settlement mechanism. 
Chile hoped that Members could find a way forward to resolve this issue as soon as poss ible. WT/D SB/M/380  
 
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 11.18.   The representative of Hong Kong, China  said that Hong Kong, China thanked the Chairman 
for his report and his efforts in working towards a solution. Hong Kong, China was disappointed 
that Members were still unable to reach consensus regarding the rea ppointment and new 
appointment of Appellate Body members. Noting that reappointments were not automatic, 
Hong Kong, China considered that some important systemic issues being raised, such as what 
considerations should or should not be taken into account fo r the reappointment of Appellate Body 
members, warranted more in -depth discussion amongst Members. In due course, Members needed 
to find, and agree on, a right balance between respecting Members' right to appoint Appellate 
Body members and ensuring that th e Appellate Body could work independently and impartially 
without undue influence. Regarding the current impasse, Hong  Kong, China was concerned that if 
vacancies were prolonged indefinitely, it would affect the effective operation of the Appellate Body 
which already had a heavy workload. Within the parameters of the ongoing exercises, Hong  Kong, 
China stood  ready to work constructively with the Chairman and other Members to find a 
satisfactory solution to both the reappointment and new appointment of Appel late Body members 
as soon as possible . 
11.19.   The representative of New Zealand  said that her country wished to take the opportunity to 
emphasise the importance of ensuring that the two Appellate Body vacancies were filled as soon as 
possible. The Appellate Body could not effectively fulfil its function without seven members, and 
New Zealand was therefore concerned about the practical and systemic implications of the current 
vacancies. These considerations were of particular importance at a time when the dispute 
settlement system was experiencing an increased work load pressure. New  Zealand noted in 
particular that consultations to appoint a successor to Ms  Zhang had been ongoing for a number of 
months. New  Zealand emphasized the importance of ensuring that this pr ocess was not delayed 
any further. New  Zealand urged all Members to work constructively, and to be pragmatic in their 
approach to these matters in order to find prompt solutions to ensure that both Appellate Body 
vacancies were filled as soon as possible.  
11.20.   The representative of Chinese  Taipei  said that Chinese  Taipei thanked the Chairman for his 
report. Chinese  Taipei shared the systemic concerns raised by Korea and other Members in the 
joint statement made at the present meeting. As Chinese  Taipei had state d at the previous DSB 
meeting, linking reappointment to the Appellate Body's legal views in certain disputes may affect 
the Appellate Body's authority. Singling out one Appellate Body member for certain legal views in 
the Appellate Body reports was also un dermining the impartiality and independence of the 
Appellate Body. Chinese  Taipei expressed its serious concerns about the prolonged vacancies in 
the Appellate Body and the potential delays at the appeal stage. In Chinese  Taipei's view, the 
reappointment a nd the appointment matters should be addressed quickly and pragmatically. Any 
new vacancies should be filled in a due and efficient process. Chinese  Taipei thanked the Chairman 
for his efforts in these important and complex matters and expressed its readin ess to work further 
with the Chair and Members to find solutions to the current problems. He then referred to an old 
Chinese proverb that "a bell can only be untied by the person who tied it." Chinese  Taipei therefore 
urged the Members concerned to conside r the issues in a well -balanced manner and to work 
together to find a way forward for the best interest of the Membership. Chinese  Taipei placed its 
utmost trust and confidence in the Appellate Body.  
11.21.   The representative of Australia  said that his country th anked the Chairman for his update 
and for his ongoing efforts to progress these important Appellate Body issues. Australia remained 
committed to working with all Members to reach a prompt resolution, which would take into 
account the interests and concerns  of all Members. In that regard, Australia had listened carefully 
and agreed with the views put by many at the present and previous DSB meetings regarding the 
systemic concerns which the recent reappointment process had raised. Australia suggested that 
the DSB Chair should begin consulting informally with Members on the range of concerns with a 
view to finding a path forward. However, having failed to achieve consensus to date, Australia 
believed that Members should focus their efforts on filling the two Ap pellate Body vacancies as 
soon as possible. Filling those vacancies was essential to the efficient and effective functioning of 
the Appellate Body. Australia wished to see an approach that was pragmatic, efficient , fair and that 
minimized interruptions to the Appellate Body's capacity to carry out its important duties.  WT/DSB/M/380  
 
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 11.22.   The representative of Norway  said that h er country was deeply concerned about the 
current situation in the Appellate Body since there were two vacancies and no immediate prospects 
for a solut ion. This was in addition to the well -known challenges faced by the Appellate Body as a 
result of its significant workload, and consequent delays in appeals. As had already been stated by 
several delegations at the present meeting, pragmatism must guide th is process. Norway 
encouraged all Members to show the utmost flexibility in order to fill both vacancies as soon as 
possible. Norway stood ready to join other Members in any efforts to resolve this matter.  
11.23.   The representative of Japan  said that his country took note of the Chairman's statement 
reporting on his consultations with Members on the matters related to the appointment of a new 
Appellate Body member as well as the reappointment of one Appellate Body member. Japan 
wished to first thank the Chairman f or his efforts in this important matter. Given the workload of 
the Appellate Body, the dispute settlement system could not afford the luxury of having two 
unfilled vacancies for an extended period of time. The high -quality work and the proper functioning 
of the Appellate Body depended on the qualities and qualifications of the individuals who served as 
Appellate Body members. In that regard, Japan, once again wished to emphasize that an 
individual's quality and qualification should be the guiding principle in the selection and 
appointment of an Appellate Body member. Japan was ready to engage in the consultations to 
discuss the systemic issues, once these were initiated. Japan trusted that the Chairman would 
facilitate the process of discussions so that Memb ers could find the best way forward to resolve the 
current situation. Japan hoped that Members would cooperate in that regard.  
11.24.   The representative of Mexico  said that his delegation wished to thank the Chairman for his 
report and the Selection Committee for  its work on the AB process. Mexico considered that the 
Selection Committee had enough candidates to recommend an individual to the DSB to fill the 
vacancy in the Appellate Body left by Ms  Yuejiao Zhang. At the same time, Mexico noted the 
Guidelines for Ap pointment of Officers to WTO Bodies and, in particular, the statement by the 
Chair of the General Council made in July  2012, which read as follows: "The existing guidelines are 
in general adequate and are reaffirmed. … The selection process should be chara cterized by 
transparency, and at the same time, recognize the need to provide the … selection committee … 
with a certain degree of flexibility ….Second, Members should exercise restraint in blocking 
consensus on a candidate and should explain to the select ion committee the reasons why, if they 
are doing so".16. In Mexico's view, these guidelines which were applicable for the selection of 
Chairpersons of WTO Bodies, could also be applicable to the AB selection process. The entire 
Membership must therefore do everything possible to support the Selection Committee in reaching 
a conclusion as soon as possible. Regarding the vacancy resulting from one Appellate Body 
member's term of office not being renewed, Mexico believed the DSB must quickly begin the new 
proce ss to fill the vacancy, so that Members could nominate candidates, and the Selection 
Committee and Members could interview them. Mexico reiterated its commitment to working 
together under the Chair's leadership.  
11.25.   The representative of Zimbabwe  said that his  country wished to associate itself with the 
statement made by Morocco on behalf of the African Group. Zimbabwe also shared the concerns 
that had been raised by other Members. Zimbabwe was deeply concerned about the failure to 
reach consensus on the reappo intment of an Appellate Body member and the singling out of one 
member of the Appellate Body over the reports of the Appellate Body. This was a worrying 
development, and it had the potential to undermine the credibility of the dispute settlement 
mechanism and the multilateral trading system in general. Zimbabwe, therefore, encouraged a 
constructive engagement among Members to address the concerns that had been raised and also 
in filling the two vacancies in the Appellate Body.  
11.26.   The representative of Canada  said that his country wished to add its voice to those that 
had already indicated that, in the absence of a consensus on the reappointment, it was imperative 
that the DSB move quickly to launch a process to fill this new vacancy. Canada also encouraged 
the DSB Chair to make a concrete proposal at the July DSB meeting for a new appointment 
process, alongside the one to fill the existing vacancy for which there was also no consensus on 
the current candidates. In the interests of restoring the Appellate Body to  a full contingent as 
quickly as possible, Canada hoped that Members would work constructively and pragmatically to 
ensure that the DSB could act decisively at the July DSB meeting to move the appointments for 
both vacancies forward. This did not prevent M embers from continuing to discuss the implications 
                                                
16 WT/GC/M/137, paras . 187 and 188.  WT/D SB/M/380  
 
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 of the DSB’s failure to reappoint on that occasion , and perhaps also to discuss whether Members 
wished to modify the rules governing Appellate Body appointments more generally, but that 
needed to proceed o n a separate track.  
11.27.   The representative of Brazil  said that his country thanked the Chairman for his report. As 
Brazil had stated at the previous DSB meeting, this issue was not simply another regular item on 
the DSB's Agenda. The joint statement of Members , made by Korea, as well as other statements 
made at the present meeting, provided ample evidence of the importance Members attached to 
the independence and impartiality of the Appellate Body and of the serious concerns raised by 
actions that risked underm ining the core of those fundamental principles. In light of the 
Chairman's report, it seemed that Members had two issues to consider: (i) a procedural issue on 
how and when to fill the vacancies left open in the Appellate Body, which resulted in a situatio n of 
an Appellate Body having to function with only five members; and (ii) a systemic challenge against 
the very fulcrum that sustained the impartiality and independence of the Appellate Body. Should 
this fulcrum be removed, the dispute settlement system w ould not be in a position to properly 
serve its purpose in a multilateral context. Brazil questioned the purpose of having a fully 
operational Appellate Body, if its independence was also not fully safeguarded. Brazil also 
understood from the Chairman's re port, that Dedicated Sessions would be held to discuss both 
issues. Brazil noted that some Members seemed to have focused only on one concern, that the 
increased number of disputes would have to be dealt with by an Appellate Body reduced to five 
members. B razil noted this concern, which it also shared. Brazil was certain that the Membership, 
in light of the grave concerns expressed in the joint statement about the risks to the independence 
and impartiality of the Appellate Body, would know how to preserve t he integrity of the DSB and 
would work constructively to address all concerns raised by many Members, and would a lso resist 
the temptation to let the systemic implications of the current events simply fade away or to be 
drowned in the cacophony of divergen t voices. The joint statement made at the present meeting 
was, fortunately, a clear testimony to the harmonious belief of Members in the principles that 
allowed the Appellate Body to adequately perform what it had been tasked to do. In Brazil's view, 
it would not be reasonable to conceive a solution for the topical question without also finding an 
adequate response to the systemic problem. As the reappointment process had unfortunately 
started to imperil the independence of Appellate Body members, Brazil wi shed to recall its 
suggestion, made at the previous DSB meeting, for Members to ponder the idea of a single 
mandate for Appellate Body members, so as to close the loophole for undue interference and 
pressure and to ensure an adequate working environment fo r Appellate Body members. In Brazil's 
view, the fact that future reappointments might simply not happen should not be discarded. Other 
suggestions had also been mentioned by other Members, at the present meeting and at the 
previous meeting and all should b e carefully analysed by Members. Brazil hoped that, collectively, 
Members could endeavour to find a constructive solution to these important systemic concerns.  
11.28.   The representative of the United  States  said that his country thanked the  Chairman for his 
continued work in carrying out consultations on these matters. In response to the apparent 
suggestion that the United  States reconsider its position and support the reappointment of 
Mr. Chang to a second term on the Appellate Body, the US position was clear and  would not 
change. For several years, the United  States had been raising with Members its systemic concerns 
with the operation of the WTO dispute settlement system, and in particular with the adjudicative 
approach of certain Appellate Body reports. The Uni ted States had also noted that these concerns 
were widely shared in the United  States. For example, the recent letter from six former US Trade 
Representatives reinforced those concerns. The United  States had explained in detail how those 
concerns had infor med its decision regarding the reappointment of Mr.  Chang. Rather than repeat 
that explanation at the present meeting, the United  States would refer Members to the US 
statement at the 23  May 2016 meeting of the DSB. The United  States would recall, however,  the 
question it had posed to WTO Members at that meeting: if a candidate for appointment to the 
Appellate Body were to say openly that he or she would issue Appellate Body reports reflecting the 
systemic concerns the United  States had identified, would Me mbers' governments support that 
candidate for appointment? The United  States would think most WTO Members would say no. And 
a candidate not suitable for appointment was no more suitable for reappointment. 
The United  States continued  to appreciate the enga gement it had had with delegations and looked   WT/DSB/M/380  
 
- 30 - 
 
 forward to engaging with all Members on the critical issues of how to reinforce the aim and proper 
adjudicative approach of the dispute settlement system. At the same time, however, the 
United  States consider ed that the DSB should continue to work to find a consensus on the 
appointment of persons to fill the two current vacancies on the Appellate Body.  
11.29.   The DSB took note  of the statements.  
12  THAILAND – CUSTOMS AND FISCAL M EASURES ON CIGARETTE S FROM THE 
PHILIPPINE S 
A. Statement by the Philippines  
12.1.   The representative of the Philippines , speaking under "Other Business", recalled that on 
4 May 2016, the Philippines had requested consultations with Thailand regarding the dispute: 
"Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines" (DS371). The 
Philippines wished to provide Members with a brief report on those consultations. The parties had 
held consultations in Bangkok on 2  June 2016. The consultations had been conducted in a positive 
spirit and h ad succeeded in clarifying a number of points. Unfortunately, however, Thailand had 
not been in a position to respond fully to the Philippines' questions at the consultations. Thailand, 
therefore, had committed to provide the Philippines with specific info rmation in documents 
pertinent to the dispute. In particular, Thailand had committed to explaining to the Philippines, by 
27 June 2016, the specific allegations underlying the criminal charges regarding the declared 
customs value of imports from the Philip pines and to provide copies of the evidence supporting the 
additional allegations. Thailand had also agreed to provide copies of certain other documents 
identified in a letter of 8  June 2016, sent by the Philippines to the Permanent Mission of Thailand 
to the WTO. In return for Thailand's commitment, and in recognition of the constructive 
relationship between the two countries, the Philippines had agreed to wait until 27  June 2016 
before filing a request for the establishment of a panel. The Philippines loo ked forward to receiving 
the relevant documents and information from Thailand no later than 27  June 2016.  
12.2.   The representative of Thailand  said that his country took note of the Philippines' statement 
and would continue to work closely with the Philippines to find a solution to this dispute.  
12.3.   The DSB took note  of the statements.  
13  DISPUTE SETTLEMENT W ORKLOAD  
A. Statement by the Chairman  
13.1.   The Chairman , speaking under "Other Business", said that he wished to provide information 
about the Appellate Body's workload,  the number of disputes before panels, in the panel queue, 
and at the panel composition stage, and the ability of the Secretariat to meet expected demand 
over the coming period. On appeals, the Appellate Body was currently dealing with three 
appeals.17 In addition, four panel reports were expected to be circulated in the next three months 
that may also be appealed18, including the report of the Panel in the extremely complex 
compliance proceedings in the "EC and Certain Member States – Large Civil Aircraft" ( Airbus) 
dispute. Given the limited number of staff available in the Appellate Body Secretariat, there was 
soon likely to be a waiting period before appeals could be staffed and Appellate Body Members 
could turn to dealing with them. The two vacancies in th e Appellate Body were likely to exacerbate 
this situation. On panels/arbitrations, currently there were 17 active panels (including one panel 
under Article  21.5 of the DSU) that had not yet issued a final report to the parties. He noted that 
he was countin g multiple disputes that were being considered simultaneously by the same panel 
as one. For example, the "Australia – Tobacco Plain Packaging" panels, which in fact comprised 
four active disputes, was counted as a single panel in his report. In addition, h e said that he had 
excluded suspended panels. As of the present day, there were two composed panels awaiting staff 
to assist them19, both of which had been composed after 31  October  2015 when 
the Director -General had undertaken to staff all panels in the qu eue at that time. Currently, there 
                                                
17 DS456 "India – Solar Cells"; DS464 "US – Washing Machines"; and DS473 "EU – Biodiesel".  
18 DS316 "EC and Certain Member States – Large C ivil Aircraft"; DS475 "Russia – Pigs"; DS485 "Russia 
– Tariff Treatment"; and DS471 " US – Anti-dumping Methodologies" (China).  
19 DS480 "EU – Biodiesel" (Indonesia); and DS491 "US – Coated Paper" (Indonesia).  WT/D SB/M/380  
 
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 were six panels at the composition stage. In addition, one matter has been referred to arbitration 
under Article  22.6 of the DSU.  
13.2.   The DSB took note  of the statement.  
__________