RESTRICTED  
  
WT/DSB/M/387  
 
5 December 2016  
(16-6635) Page: 1/15 
Dispute Settlement Body  
26 October 2016    
 
 MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 26  OCTOBER  2016 
Chairman: Mr. Xavier  Carim  (South Africa ) 
Prior to the adoption of the Agenda , the Chairman  informed delegations that Antigua and Barbuda 
had requested by letter, dated 24  October  2016, that the item entitled: "United  States  – Measures 
Affecting the Cross -Border Supply of Gambling and Betting Services: Statement by Antigua and 
Barbuda " (DS285) be removed from the proposed Agenda and that it be added to the proposed 
Agenda of the 23  November DSB meeting.  
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  ................................ ................................ ..............  2 
B.  United  States – Section 110(5) of the US Copyright Act: Status report by the 
Unite d States  ................................ ................................ ................................ .....................  3 
C.  European Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European Union ................................ ................................ ....... 3 
2   IMPLEMENTATION OF TH E RECOMMENDATIONS OF  THE DSB  ................................ ..... 4 
A.  United  States – Anti-dumping and countervailing measures on large residential 
washers from Korea  ................................ ................................ ................................ ............  4 
B.  Russia – Tariff treatment of certain agricultural and manufacturing products  .........................  4 
3   UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  OF 
2000: IMPLEMENTATION  OF THE RECOMMENDATIO NS ADOPTED BY THE DS B ................  5 
A.  Statements by the European  Union and Japan  ................................ ................................ ... 5 
4   CHINA – CERTAIN MEASURES AFFEC TING ELECTRONIC PAYM ENT SERVICES  .............  6 
A.  Statement by the United  States  ................................ ................................ .......................  6 
5   UNITED  STATES - COUNTERVAILING M EASURES ON CERTAIN H OT-ROLLED 
CARBON STEEL FLAT PR ODUCTS FROM INDIA  ................................ ................................ . 6 
A.  Statement by India  ................................ ................................ ................................ ........  6 
6   INDIA – MEASURES CONCERNING THE IMPORTATION OF CE RTAIN 
AGRICULTURAL PRODUCT S ................................ ................................ ..............................  8 
A.  Statement by the United  States  ................................ ................................ .......................  8 
7   CHINA - EXPORT DUTIES ON CER TAIN RAW MATERIALS  ................................ ............  9 
A.  Request for the establishment of a panel by the United  States  ................................ .............  9 WT/DSB/M/387  
 
- 2 - 
 
 8   EUROPEAN UNION – ANTI -DUMPING MEASURES ON BIODIESEL FROM 
ARGENTINA  ................................ ................................ ................................ ....................  10 
A.  Report of the Appellate Body and Report of the Panel  ................................ ........................ 10 
9   ADOPTION OF THE 2016  DRAFT ANNUAL REPO RT OF THE DISPUTE 
SETTLEMENT BODY  ................................ ................................ ................................ ........  14 
10   PROPOSED NOMINATION FOR THE INDICATIVE L IST OF GOVERNMENTAL 
AND NON -GOVERNMENTAL PANELIS TS ................................ ................................ ..........  14 
11   APPELLATE BODY MATTE RS................................ ................................ .....................  14 
12   DISPUTE SETTLEMENT W ORKLOAD  ................................ ................................ .........  15 
A.  Statement by the Chairman  ................................ ................................ ............................ 15 
 
 
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 th e United  States  (WT/DS184/15/Add .165)  
 
B.  United  States  – Section 110(5) of the US Copyright A ct: Status Report by the United  States  
(WT/DS 160/24/Add .140)  
 
C.  European Communities – Measures affecting the approval and marketing of biotech products: 
Status r eport by the European Union (WT/DS291/37/Add.103)  
 
1.1.  The Chairman noted that there were three 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 implementa tion of the 
recommendations or rulings shall be placed on the Agenda of the DSB meeting after six months 
following the date of establishment of the reasonable period of time and shall remain on the DSB's 
Agenda until the issue is resolved ". Under this Agen da item, the Chairman in vited 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 also reminded 
delegations that, as provided for in Rule  27 of the Rules of Procedure for DSB meetings: 
"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 n o change in Members' positions already on record ". He then turned to the first status report 
under this Agenda item.  
A.  United  States  – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status r eport by th e United  States  (WT/DS184/15/ Add.165)  
1.2.  The Chairman  drew attention to document WT/DS184/15/Add.165, 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 the United  States  said that his country had provided a stat us report in 
this dispute on 13  October  2016, in accordance with Article  21.6 of the DSU. The United  States  
had addressed the DSB's recommendation s and rulings with res pect 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 wor k with the US Congress with respect to appropriate statutory 
measures that would resolve this matter.  WT/DSB/M/387  
 
- 3 - 
 
 1.4.  The representative of Japan  said his country thanked the United  States  for its statement and 
its status report submitted on 15  September  2016. Japan refer red to its previous statements that 
this issue should 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) o f the US Copyright Act: Status r eport by th e 
United  States  (WT/DS160/24/Add .140)  
1.6.  The Chairman  drew attention to document WT/DS160/24/Add.140, which contained the 
status report by the United  States  on progress in the implementation of the DSB's 
recommendations in the case concerning Sectio n 110(5) of the US Copyright Act.  
1.7.  The representative of the United  States  said that his country had provided a stat us report in 
this dispute on 13  October  2016, in accordance with Article  21.6 of the DSU. The 
US Administration would continue to confer with  the EU, and 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 his delegation thanked the United  States  
for its status report and its statement. The EU  referred to its statements made under this Agenda 
item at previous DSB meetings. The EU said that it 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 – Measures affecting the approval and marketing of biotech 
products: Status r eport by the E uropean Union (WT/DS291/37/Add .103)  
1.10.   The Chairman  drew attention to document WT/DS291/37/Add.103, which contained th e 
status report by the Eur opean  Union on progress in the implementation 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 on 16  September  2016, the Commission 
had adopted an authorisat ion decision for one GM maize.1 Two other GMOs had been voted on with 
a no opinion result in the Standing Committee on 8  July 2016 an d in the Appeal Committee on 
15 September  2016. In accordance with the applicable regulations, it was  now for the Commission 
to decide on these authorisations. More generally, and as had been stated many times before, the 
EU recalled that the EU approval system was not covered by the DSB's recommendations and 
rulings.  
1.12.   The representative of the United  States thanked the European  Union  for its status report 
and its statement made at the present meeting. As the United  States  had noted at past DSB 
meetings, EU measures affecting the approval and marketing of biotech products remained of 
substantial concern to the United  States . The EU measures were characterized by lengthy, 
unpredictable, and unexplained delays in appro vals. The United  States  noted that the EU 's 
scientific review process seemed to have slowed in recent years. For instance, many corn and soy 
products had now been under consideration by the EU 's scientific authority for sev eral years. 
Further, the United  States  was concerned that products that had received positive scientific 
evaluations continued to languish without approval by the relevant EU bo dies. The delays in 
approvals caused adverse effects on trade, particularly with respect to soybeans and corn. The 
United  States  encouraged the EU to ensure that products in the biotech approval pipeline moved 
forward in a timely manner, as required by EU regulations and WTO rules. The United  States  urged  
                                                
1 Bt11 × MIR162 × MIR604 × GA21.  WT/DSB/M/387  
 
- 4 - 
 
 the EU to ensure that its biotech approval measures were consistent wit h its obligations under the 
SPS Agreement.  
1.13.   The DSB took note  of the statements and agreed  to revert to this matter at its next regul ar 
meeting.  
2  IMPLEMENTATION OF TH E RECOMMENDATIONS OF  THE DSB  
A.  United  States  – Anti-dumping and c ountervail ing measures on large residential w ashers from 
Korea  
 
B.  Russia – Tariff treatment of certain agricultural and manufacturing p roducts  
 
 
2.1.  The Chairm an recalled that, in accordance with the DSU provisions, the DSB was required to 
keep under surveillance the implementation of recommendations and rulings of the DSB in order to 
ensure effective resolution of disputes to the benefit of all Me mbers. In this  respect, Article  21.3 of 
the DSU provided that the Member concerned h ad to inform the DSB, within 30  days after the date 
of adoption of the panel or Appellate Body r eport, of its intentions in respect of implementation of 
the recommendations and rulings o f the DSB. The Chairman proposed that the two sub -items, to 
which he had just referred, be considered separately.  
A.  United  States  – Anti-dumping and countervailing measures on large residential 
washers from Korea  
2.2.  The Chairman  recalled that, at its meetin g on 26  September  2016, the DSB had adopted the 
Appellate Body Report and the Panel Report, as modified by the Appellate Body Report, pertaining 
to the dispute: "United  States  – Anti Dumping and Countervailing Measures on Large Residential 
Washers from Kor ea". He invited t he representative of the United  States  to inform the DSB of its 
intentions in respect of implementation of the DSB's recommendations.  
2.3.  The representative of the United  States  said that on 26  September  2016, the DSB had 
adopted the Panel and  Appellate Body Reports in the dispute: "United  States  – Anti-Dumping and 
Countervailing Measures on Large Residential Washers from Korea ". At the present meeting, as 
provided i n the first sentence of Article  21.3 of the DSU, the United  States  stated that it intended 
to implement the recommendations of the DSB in this disput e in a manner that respected US -WTO 
obligations. The United  States  said it would need a reasonable period of time for implementat ion. 
In accordance with Article  21.3(b) of the DSU, the United States  would discuss this matter with 
Korea with a view to reaching agreement on the period of time.  
2.4.  The representative of Korea  said that his country welco med the statement by the 
United  States  that it intended to comply with the recommendations and  rulings of the DSB in this 
dispute. As the DSU called for prompt compliance with the DSB's recommendations and rulings,  
Korea urged the United  States  to take necessary steps to immediately bring its measures into 
conformity with its obligations under the WTO Agreements. Korea said it believed that the 
appropriate and reasonable period of time for the United  States  to take necessary steps should be 
as prompt a s possible, pursuant to Article  21.1 of the DSU. In this regard, Korea was prepared to 
enter into c onsultations with t he United  States , under Article  21.3(b) of the DSU, on the 
reasonable period of time necessary for prompt compliance. In the meantime, Korea res erved its 
rights under Articles  21 and 22 of the DSU.  
2.5.  The DSB took note  of the statements, an d of the inf ormation provided by the United  States  
regarding its intentions in respect of implementation of the DSB's recommendations.  
B.  Russia – Tariff treatment of certain agricultural and manufacturing p roducts  
2.6.  The Chairman  recalled that, at its meeti ng on 26  September  2016, the DSB had adopted the 
Panel Report in the dispute: "Russia – Tariff Treatment of Certain Agricultural and Manufacturing 
Products ". He invited the representative of the Russian  Federation to inform the DSB of its 
intentions in res pect of implementation of the DSB's recommendations.  WT/DSB/M/387  
 
- 5 - 
 
 2.7.  The representative of the Russian  Federation  said that, at its meeting on 26  September  2016,  
the DSB had adopted the Panel Report in the dispute  "Russia – Tariff Treatment of Certain 
Agricultural and Man ufacturing Products " (DS485). The Panel had recommended Russia to bring 
duties on certain goods in conformity with its WTO commitments. The Russian Federation informed 
the Membership that the overwhelming majority of the measures challenged by the EU had 
already been brought into compliance with the Russian  Federation's WTO obligations prior to, and 
in the course of, the dispute settlement proceedings. With respect to the remaining measures, 
Russia informed the DSB that it intended to implement the recommen dations and rulings of the  
DSB in accordance with Article  21.3 of the DSU. To this end, the Russian  Federation stated that it 
needed a reasonable period of time for the implementation of the DSB recommendations and 
rulings in this dispute. The Russian  Federation said it looked forward to discussing this matter with 
the EU in due course with a view to resolving it in accordance with the DSU provisions.  
2.8.  The representative of the European  Union  said his delegation welcomed the statement made 
by the Russian  Federation with regard to its intentions to comply. The EU was ready to discuss a 
reasonable period of time for compliance. The EU recalled that the Panel had confirmed that the 
customs duties that the Russian  Federation had been required to apply, pursuant t o the Common 
Customs Tariff of the Eurasian Economic Union, with respect to a number of products, exceeded 
Russia's bound rates and  were inconsistent with Article  II:1(b) of the GATT  1994. While the EU 
had taken note of modifications that had already occur red for certain tar iff lines, it urged the 
Russian  Federation to promptly take the necessary steps to ensure WTO -compatibility of the 
measures for which inconsistency remained. The EU hoped that the Russian  Federation would fully 
respect the bindings that it had committed to in its Schedule.  
2.9.  The DSB took note  of the statements, and of the information provided by the 
Russian  Federation regarding its intentions in respect of implementation of the DSB's 
recommendations.  
3  UNITED  STATES  – CONTINUED DUMPING AN D SU BSIDY OFFSET ACT OF 2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE DSB  
A.  Statements by the European  Union and Japan  
3.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European  Union and Japan, and he invited the respective representatives to speak.  
3.2.  The representative of the European  Union  said his delegation  renewed its call on the 
United  States  to abide by its clear obligation, under Article  21.6 of the DSU, to submit 
implementation reports in this  dispute. The EU requested, once again, that the United  States  stop 
transferring anti -dumping and countervailing duties to its industry. Every disbursement that still 
took place was clearly an act of non -compliance with the recommendations and rulings of t he DSB.  
3.3.  The representative of Japan  said that since the distributions under the CDSOA continued, 
Japan, once again, urged the United  States  to stop illegal distributions in order to resolve this 
long-standing dispute. As had been stated at previous meeting s, Japan was of the view that the 
United  States  was under obligat ion, in accordance with Article  21.6 of the DSU, to provide the DSB 
with a status report in this dispute.  
3.4.  The representative of Canada  said his country thanked the EU and Japan for keeping th is 
item on the Agenda of the DSB. Canada agreed with them that the Byrd Amendment remained 
subject to the surveillance of the DSB until the United  States  ceased to administer it.  
3.5.  The representative of Brazil  said that her country thanked the EU and Japan f or keeping this 
item on the Agenda of the DSB and said that Brazil reiterated its previous statements on this 
matter.  
3.6.  The representative of China  said her country thanked the EU and Japan for raising this item 
at the present DSB meeting. China urged the United States  to come into full compliance with the 
DSB's rulings and recommendations on this matter, as soon as possible.  WT/DSB/M/387  
 
- 6 - 
 
 3.7.  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 be en 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 di sputes. The United  States  recalled, 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, which was over nine years ago.  
The United  States , therefore, did not understand 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  failed 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 disp utes. Indeed, as these very WTO  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 th ose DSB recommendations and rulings, regardless of whether the complaining 
party disagreed about compliance.  
3.8.  The DSB took note  of the statements.  
4  CHINA – CERTAIN MEASURES AFF ECTING ELECTRONIC PA YMENT SERVICES  
A.  Statement by the United  States  
4.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the United  States  and he invited the representative of the United  States  to speak.  
4.2.  The representative of the United  States  said that the DSB had adopted its recommendations 
in this dispute more than four years ago, and the reasonable period of time had expired more than 
three years ago. To the present day, however, China 's domestic supplier and national champion – 
a business set up by the People's Bank of China and other Chinese  Government -related entities – 
remained the only entity authorized to provide electronic payment services (EPS) in China. China 
had issued a regulation a few months ago that appeared to set out a licensing application process 
for EPS suppliers to enter the  domestic market. However, whether China would, in fact, allow 
foreign EPS suppliers to operate in the Chinese domestic mark et remained unclear. 
The United  States  urged China to ensure that the approval of foreign EPS suppliers occurred 
without delay, in a ccordance with China 's WTO obligations.  
4.3.  The representative of China  said her country regretted that the United  States  had, once 
again, brought this matter before the DSB. China referred to its statements made at previous 
meetings and emphasized that it had  taken all necessary actions to fully implement the DSB's 
recommendations and rulings in this dispute. China reiterated that the regulation mentioned by 
the United  States  was not relevant to the implementation of the DSB's recommendations and 
rulings in th is dispute. Nor was the DSB meeting an appropriate forum to discuss China 's domestic 
regulatory action which was irrelevant to this specific dispute.  
4.4.  The DSB took note  of the statements.  
5  UNITED  STATES  - COUNTERVAILING MEASU RES ON CERTAIN HOT -ROLLED CARBON 
STEEL FLAT PRODUCTS FROM INDIA  
A.  Statement by India  
5.1.  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.  
5.2.  The representative of India said that his country w as, once again, forced to raise the issue of 
the US' non -compliance and its failure to submit a status report, in accordance with Article  21.6 of 
the DSU, in this dispute. India said it would like to highlight to the DSB why it had, once again, 
raised this  issue at the present meeting. India said it was mindful of repetitive statements in the 
DSB, and had shortened its intervention considerably, in view of the Chairman's opening remarks. WT/DSB/M/387  
 
- 7 - 
 
 He recalled that the United  States  had explained, at the 26  September  2016 DSB meeting, that, 
under US law, the US Department of Commerce "has discretion with respect to the timing of a 
self-initiated investigation. And, Commerce has confirmed its commitment to exercise its discretion 
in a manner that is consistent with the international obligations of the United States" . Therefore, 
the United  States  had claimed that no further action was needed. This explanation was not legal ly 
tenable. The Appellate Body had categorically found, after a thorough analysis of the provisions o f 
the measure and the SCM Agreement, that Section  1677(7)(G)(iii) "requires " cross-cumulation, 
which was, in fact prohibited under WTO law. The law, as it existed on the statute, was 
WTO-inconsistent. Therefore, for the United  States  to argue in the DSB th at it had discretion to 
initiate an investigation, and that it would exercise this discretion consistently with its WTO 
obligations, disregarded the DSB's rulings and recommendations in this regard. The United  States  
was attempting to re -adjudicate the iss ue where it could not be adjudicated. Merely stating that it 
would act in a WTO -consistent manner without either modifying or repealing the measure could 
not, ipso facto, result in compliance with WTO obligations.  
5.3.  As had been previously stated, there exist ed, on the statute book, a law that had been found 
to be WTO -inconsistent by the DSB. It was also pertinent to note Agenda item  1A and 1B of the 
present meeting. In both these disputes, United  States ' law continued to be WTO -inconsistent and 
the United  States had stated that it was working with US Congress to bring in appropriate 
measures. The United  States  continued to submit status reports pertaining to work on statutory 
amendments to domestic laws that had been found to be inconsistent with US WTO obliga tions 
and were yet to be modified or repealed. Though compliance was less strict in the DSB, in terms of 
the time taken to comply, the approach of the United  States  in providing a status report was 
consistent with the DSU. India was disappointed to note th at a different legal standard was being 
pursued in the present dispute, which pertained to essentially the same issue: a law which was 
WTO-inconsistent, than the disputes under Age nda items  1A and 1B. The United  States  neither 
believed that it was necessar y to provide a status report in this case nor that it needed to work on 
repealing or modifying the statute. India said that the United  States  was bound to remove the 
inconsiste ncy, either by deleting Section  1677(7)(G)(iii) entirely, or by amending it to e nsure that 
USITC could not cumulate the effects of subsidized imports with the effects of dumped, 
non-subsidized imports. The United  States  could not absolve itself from this responsibility by 
stating that an illusory "discretion " would be exercised in a m anner consistent with its international 
obligations. India thus urged the United  States  to fully comply with the rulings and 
recommendations of the DSB in this dispute and, until then, to file status reports as it did in other, 
similar disputes.  
5.4.  The repres entative of the United  States  said that, as his country had explained at prior DSB 
meetings, the United  States  had completed implementation with respect to the DSB 
recommendations in this dispute. The United  States  remained willing to discuss with India any 
questions it may have. India, however, had not contacted the United  States  to do so. Accordingly, 
the United  States  failed to understand what purpose was served by India 's decision to place this 
item on the Agenda of the present meeting. As the United  States had consistently explained to the 
DSB, and again at the present meeting under Agenda item  3, there was no obligation under the 
DSU to provide further status reports once a Member had announced that it had implem ented 
those DSB recommendations,  regardl ess of whether the complaining party disagreed about 
compliance.  
5.5.  With respect to t he "as such " finding on Section  1677(7)(G)(i)(III) of the  Tariff Act of  1930, 
the United  States  had explained, both to India and to the DSB, that no further US action was 
needed. The provision of US law at issue had not been 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 the administering authority to self -initiate a CVD investigation on the same day as an 
AD petition was filed by  an industry, or vice versa. As the United  States  had explained before, 
under US law, the US Department of Commerce had discretion with respect to the timing of a 
self-initiated investigation. The discretion provided for under US law had not been the subje ct of 
any findings by the Appellate Body in its Report – not surprisingly, as this provision had not even 
been addressed by either of the Parties in the course of this dispute.  
5.6.  Nonetheless, the United  States  had previously confirmed that, having never been  exercised 
in a WTO inconsistent manner before, it was not now the intention of the United  States  to exercise WT/DSB/M/387  
 
- 8 - 
 
 this discretion 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 antidumping duty 
investigations, in a manner that was consistent with the WTO obligations of the United  States . 
Therefore, no f urther action was needed and India had no basis for its insistence that US law had 
to be changed in order for the United  States  to comply with the DSB recommendations in this 
dispute.  
5.7.  The DSB took note  of the statements.  
6  INDIA – MEASURES CONCERNING THE IMP ORTATION OF CERTAIN AGRICULTURAL 
PRODUCTS  
A.  Statement by the United  States  
6.1.  The Chairman said that this item was on the Agenda of the present meeting at the request of 
the United  States  and invited the representative of the United  States  to speak.  
6.2.  The rep resentative of the United  States  said that Members would recall  that India continued 
to modify its measures related to avian influenza, even though the reasonable period of time for 
compliance had expired in June  2016. Most recently, India had announced a revised me asure on 
22 September  2016. The  United  States  recalled that the Panel had found, and the Appellate Body 
had confirmed, that international standards issued by the OIE would meet India 's level of 
protection. Under the September  2016 version of Indi a's measure, however, the United  States  
continued to have concerns that India 's measure could be substantially more trade restrictive than 
a measure based on OIE recommendations. For example, the content of the veterinary certificates 
that India would requ ire upon the importation of agricultural products was an essential element in 
understanding India 's revised measure. India 's Department of Animal Husbandry, however, had 
removed from its website the veterinary certificates that would be required for the pr oducts 
covered by this dispute.2 The United  States  said it stood ready to work constructively with India to 
reach a resolution to this dispute. Regrettably, however, the United  States  had had no notice that 
the most recent revision to India 's measure was f orthcoming. As a practical matter, the par ties 
could not work together if India failed t o communicate with the United  States  on the revisions to 
the measures at issue in this dispute. Until its concerns were resolved, the United  States  would 
continue to pr eserve and enforce its rights under the DSU.  
6.3.  The representative of India said that, on 8 July 2016, India had published, in its Official 
Gazette, notification S.O.  2337(E), which had superseded the previ ous notification S.O.  1663(E).3 
India had notified th e DSB on 18  July 2016 that it had adopted measures necessary to comply with 
the recommendations and rulings of the DSB.4 Notification S.O.  2337(E) complied with the 
recommendations of the DSB in this dispute as it: (i)  allowed imports of poultry and poultr y 
products into India, in accordance with the relevant international standard, the OIE Terrestrial 
Animal Health Code ( "Terrestrial Code "); (ii)  recognized the concept of disease -free areas; and 
(iii) provided for a process to be followed for recognition o f such disease -free areas, zones or 
compartments, in conformity with the Terrestrial Code and the SPS Agreement. In this respect, 
India had also issued the relevant guidelines referred to in notification S.O.  2337(E), as well as a 
questionnaire, for recogn izing a part of a country, zone or compartment, for the purpose of trade 
in poultry and poultry products.  
6.4.  After the publication of S.O.  2337(E), India and the United  States  had entered into bilateral 
discussions to address additional concerns raised by the  United  States , and, pursuant to these 
discussions, India had further amended notification S.O.  2337(E) vide S.O.  2998(E) dated 
19 September  2016.5 The amendment notification had been notified to the SPS Committee.6 It had 
also been notified to the DSB on 22 September  2016 and was available in document 
WT/DS430/19. Notification S.O.  2337(E), dated 8  July 2016; the amendment notification 
                                                
2 See http://www.dahd.nic.in/Trade/Sanitary -requirement -veterinary -health -certificate -import -various -
livestock -products . 
3 See http://egazette.nic.in/WriteReadData/2016/170589.pdf . 
4 Communication from India, WT/DS43 0/18 circulated on 19  July 2016.  
5 See http://egazette.nic.in/WriteReadData/20 16/171799.pdf . 
6 See G/SPS/N/IND/160.  WT/DSB/M/387  
 
- 9 - 
 
 S.O. 2998(E), dated 19  September  2016; the guidelines; and the questionnaire, together, formed 
the "revised Avian Influenz a measures ". The notifications had been issued 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 had come into effect from the date of their publication in the Official Gazette.  
6.5.  In view of the above, India said it strongly considered that it had brought itself into 
conformity with its WTO obligations. It had complied with the recommendations and rulings of the 
DSB by rectifying the inconsistencies in S.O . 1663(E), issuing notificatio n S.O.  2337(E), issuing 
amendment notification S.O.  2998(E), and issuing the guidelines and questionnaire. India was 
disappointed that the United  States  had raised this issue at the DSB again; despite the fact that 
India was engaging in good faith efforts to discuss and resolve the issue with the United  States . 
The measure that had been found to be inconsistent by the DSB was no longer in force. It had 
been superseded and revised measures – consisting of S.O.  2337(E), S.O.  2998(E), the guidelines 
and the qu estionnaire – were in force. In view of the fact that India had brought itself into 
conformity with its WTO obligations, India urged the United  States  to terminate the Article  22.6 
proceedings in this dispute.  
6.6.  The representative of the United  States  said t hat, under Article  22.6 of the DSU, the negative 
consensus rule applied within 30  days of the end of the period for compli ance. By submitting the 
Article  22.2 request, the United  States  had preserved its negative consensus rights. Taking this 
step had been  neither surprising nor unusual. Similar actions had been taken in other disputes. 
The United  States  noted that, as of the end of the reasonable period of time, and indeed as of the 
time of the US request under Article  22.2 of the DSU, India had not even c laimed that the 
measures that were the subject to the DSB 's recommendations and rulings had been withdrawn or 
modified. As the United  States  had noted, it remained prepared to engage with the Government of 
India to facilitate its coming into compliance wit h the DSB 's recommendations and rulings in this 
dispute.  
6.7.  The representative of the European  Union  referred to his delegation's statement made at the 
special DSB meeting on 19  July 2016. The EU continued to trust that India and the United  States  
would ensur e that the DSU procedures with regard to compliance and suspension of obligations in 
this dispute, could be conducted efficiently and in the correct sequence. The EU would continue to 
follow the developments in this dispute.  
6.8.  The DSB took note  of the statem ents. 
7  CHINA - EXPORT DUTIES ON CER TAIN RAW MATERIALS  
A.  Requ est for the establishment of a p anel by the United  States  (WT/DS508/6)  
7.1.  The Chairman  drew attention to the communication from the United  States  contained in 
document WT/DS508/6 and invited t he rep resentative of the United  States  to speak.  
7.2.  The representative of the United  States  said his country recalled that, in two prior disputes, 
the DSB had found that China 's export restrictions on various raw materials had been inconsistent 
with WTO rules. Unfo rtunately, those raw materials were not the only ones on which China had 
imposed export restraints. China continued to maintain export restrictions on other raw materials. 
The US panel request reflected US concerns with China 's restraints on the exportatio n of antimony, 
chromium, cobalt, copper, graphite, indium, lead, magnesia, talc, tantalum, and tin. These 
materials were critical inputs to a wide range of industrial sectors in the United  States  and in other 
Members. China's export restraints provided an advantage to its domestic industries purchasing 
these raw materials, at the expense of industries elsewhere. As had been described in more detail 
in the US panel request, the export restraints at issue included export quotas, export duties, and 
restriction s on the rights of enterprises seeking to export. These restraints appeared to be 
inconsistent with provisions of the GATT 1994 and China 's Protocol of Accession. China 's 
persistence in maintaining such export restrictions, notwithstanding the United  State s' efforts to 
engage with China on this issue, and WTO findings in the two previous disputes, was troubling. 
The United  States  had attempted to resolve these issues through dialogue with China on a bilateral 
or multilateral basis. China had not taken any a ction to resolve the United  States ' concerns. The 
United  States  had then requested and held formal WTO consultati ons with China on 
8-9 September  2016. These efforts had also, unfortunately, failed to resolve the dispute. WT/DSB/M/387  
 
- 10 - 
 
 Accordingly, the United  States  was requesting that the DSB establish a panel to examine the 
matter set out in its panel request with standard terms of reference.  
7.3.  The representative of China  said her delegation wished to express its strong disappointment 
with the United  States ' decision to r equest the establishment of a panel to e xamine this dispute. 
The United  States  had filed a request for consultations, and supplementary request for 
consultations, with China on 13  July and 19  July 2016 respectively. China had held sincere 
consultations wit h the United  States  in early September and had positively responded to the 
questions. China said it had reiterated its steadfast stance on respecting WTO rules and abiding by 
its accession commitments.  
7.4.  There was increasing pressure on the protection of ex haustible natural resources and the 
environment. Given this, China's policies concerning the products at issue were an integral part of 
the comprehensive measures taken to promote the scientific management of natural resources 
products and strengthen ecolo gical environment protection, with the purpose of achieving 
sustainable development. In sum, China said it regretted the US decision to move this dispute into 
the panel phase. China said it was not in a position to accept the establishment of a panel at th e 
present meeting. China stood ready to safeguard its rights under the DSU and the covered 
agreements.  
7.5.  The representative of the European  Union  said his delegation shared the United  States ' 
concerns regarding China's continued export restrictions on certai n raw materials. The EU said that 
it was disappointed that China maintained such restrictions; despite two very clear rulings by the 
WTO (albeit on a differe nt set of raw materials). On 19  July and on 19  August  2016, the EU had 
requested consultations with  China with regard to its export restrictions on certain raw 
materials  (DS509). As the consultations had failed to resolve the dispute, and the EU had not 
received any information from China that the export restrictions in question would be removed, 
the EU  would later request the establishment of the panel in its own dispute to be considered by 
the DSB at its next meeting.  
7.6.  The DSB took note  of the statements and agreed  to revert to this matter.  
8  EUROPEAN UNION – ANTI -DUMPING MEASURES ON BIODIESEL FROM ARGEN TINA 
A.  Report of the Appellate Body (WT/ DS473/AB/R and WT/DS473/AB/R/Add .1) and 
Report of the Pane l (WT/DS473/R and WT/DS473/R/Add .1) 
8.1.  The Chairman  drew attention to the communication from the Appellate Body contained in 
document WT/DS473/14 transmitting t he Appellate Body Report in the dispute: "European  Union – 
Anti-Dumping Measures on Biodiesel from Argentina ", which h ad been circulated on 
6 October  2016 in document WT/DS473/AB/R and Add.1. The Chairman reminded delegations that 
the Appellate Body Report  and the Panel Report pertaining to this dispute had been circulated as 
unrestricted documents. As Members were aware, Article  17.14 of the DSU requires 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 ". The Chairman invited the 
parties of the dispute to present their views on the Reports before the DSB.  
8.2.  The representative of Argentina  said his country welcomed the two highly important Reports 
– for Argentina and for the system – that would be ad opted at the present meeting. First of all, 
Argentina wished to thank the Panel, the Appellate Body and both Secretariats for their work 
throughout the two year long dispute, as well as the staff who had, in one way or another, 
participated in the proceedi ngs. It was significant that the Appellate Body had substantively upheld 
all Panel's conclusions and recommendations, in particular those relating to the interpretation of 
the obligations laid down in Artic les 2.2 and 2.2.1.1 of the Anti -Dumping Agreement.  This 
highlighted the excellent work of the Panel in discerning the substantive aspects of the case, as 
well as their implications and importance. In this regard, Argentina noted that, in line with the 
proceedings conducted in the WTO, the General Court of  the European  Union had annulled 
Regulation No . 1193/2013, which had imposed anti -dumping duties on biodiesel from Argentina 
and Indonesia.  WT/DSB/M/387  
 
- 11 - 
 
 8.3.  Argentina believed that, with the adoption of the Reports of the Panel and the Appellate Body 
in the di spute on "European  Union – Anti-Dumping Measures on Biodiesel from Argentina " the 
entire WTO Membership would benefit from a sound, accurate and precise interpretation that 
would enhance the predictabilit y of key provisions of the Anti -Dumping Agreement in respect of 
the construction of normal value. The Reports threw light on certain systemic aspects that had not 
been addressed before. First, Argentina noted that the Appellate Body had reaffirmed and upheld 
the fact that the  object and purpose of the Anti -Dumping Agree ment was to remedy practices 
resulting from the pricing behaviour of exporters or foreign producers under investigation. Its 
scope could not therefore be expanded in an attempt to cover measures that were not in keeping 
with the letter and spirit of the Ag reement. Second, these Reports clearly showed that the purpose 
of anti -dumping proceedings was to determine the costs of production and sale of the product 
under consideration, produced by the producer under investigation, in the country of origin. The 
construction of normal value could not therefore be based on hypothetical costs that could have 
been incurred by the producer under investigation under different conditions or circumstances.  
8.4.  Third, Argentina emphasized that both the Panel and the Appellate Bo dy had found that a 
particular government policy measure did not, as such, constitute a sufficient legal basis for 
concluding that the accounting records kept by the producers or exporters did not reasonably 
reflect the costs associated with the production  and sale of the product under investigation. It was 
therefore highly relevant that both bodies had concluded that the first paragraph  of Article  2.2.1.1 
of the Anti -Dumping Agreement did not include a reasonableness test of the costs as such. Rather, 
it related to whether the accounting records of the exporter and/or producer under investigation 
suitably and sufficiently corresponded to or reproduced those costs incurred that had a genuine 
relationship with the production and sale of the specific product. Finally, with re gard to Article  2.2 
of the Anti -Dumping Agreement, Argentina noted that both bodies had made a finding that refuted 
the use of prices replacing the costs in the country of origin.  
8.5.  Fourth, with reg ards to Article  2.4 of the Anti -Dumping Agre ement, Argentina noted that 
even though the Appellate Body did not overturn the Panel's findings on this claim, it had not 
shared the latter's interpretation. The Appellate Body did not agree that there existed a "general 
proposition " establishing that dif ferences arising from the methodology applied for establishing the 
normal value could not, in principle, be challenged under this Article as "differences affecting price 
comparability ". Fifth, Argentina underscored that, although it was aware of the diffic ulty of 
prevailing in an "as such " claim and regretted not having been able to assert its position, it was 
confident that in future cases initiated by other WTO Members, the  second subparagraph of 
Article  2(5) of the European Basic Regulation would be foun d to be inconsistent by means of a 
holistic analysis that went beyond the analysis carried out in this dispute. Finally, Argentina said 
that it hoped that, pursuant to Article  21.3 of the DSU, the European  Union would inform the DSB 
of the prompt implement ation of the latter's conclusions and recommendations in this dispute. To 
conclude, Argentina once again thanked the Panel, the Appellate Body and both Secretariats for 
their work, as well as all the staff that had participated in the proceedings relating to this dispute.  
8.6.  The representative of the European  Union  said his delegation thanked the members of the 
Appellate Body, the Panelists and the Secretariat for their work on this case. The EU acknowledged 
the time and effort that had been dedicated to this dispute. The EU welcomed the Appellate Body's 
confirmation, of the Panel's finding, that the second subparagraph of  Article  2(5) of the basic 
anti-dumping EU regulation was WTO -consistent. With regard to the EU regulation imposing 
anti-dumping duties on im ports of biodiesel from Argentina, the EU was pleased that the Panel and 
the Appellate Body had rejected a number of claims of WTO inconsistency. Nevertheless, the Panel 
and the Appellate Body had made certain findings of WTO inconsistency with regard to t he specific 
anti-dumping measures imposed on biodiesel from Argentina. The EU took note of the Appellate 
Body's clarification that Article  2.2 of the Anti -Dumping Agreement and Article  VI:1(b)(ii) of 
the GATT 1994 did not preclude an investigating authorit y from using information on the cost of 
production "in the country of origin ", from sources outside the country, as long as this information 
was apt or capable of yielding a cost of production in the country of origin. The EU also took note 
that the Panel and the Appellate Body had made certain findings of WTO -inconsistency with regard 
to the specific anti -dumping measures imposed on biodiesel from Argentina and was analysing the 
impact of these findings for the EU internal regulations and legislations.  
8.7.  The representative of Mexico  said his country had been a third participant in this dispute and 
wished to comment on a systemic issue relating to open hearings, which had been settled by the 
Appellate Body in these proceedings. Thus far, Members had not reache d agreement on open WT/DSB/M/387  
 
- 12 - 
 
 hearings. This was one of the topics discussed in the DSU negotiations. The panels and the 
Appellate Body would agree to conduct open hearings, provided that the two parties to the dispute 
so agreed. In the absence of such agreement, re quests for oral hearings open to the public or 
alternative methods such as video recordings were declined. In the appeal proceedings, the EU 
had requested the adoption of additional procedures concerning public observation of the oral 
hearing and recording  of the latter by third participants. With respect to public observation of the 
oral hearing, the Appellate Body had explained that "the request to open the oral hearing in these 
proceedings was made by only one of the participants " and the other participa nt had expressed 
concerns about this request. The Appellate Body had accordingly denied the request for open 
hearings made by one of the participants. The request for video recording of the oral hearing had 
also been rejected. The same requests for open he arings or alternative methods had been settled 
differently in other ongoing proceedings. WTO Members hoped that similar situations were 
resolved in a similar way under the principle of "security and predictability " of the dispute 
settlement system provided  for in Article  3.2 of the DSU. Mexico called upon the panels and the 
Arbitrators, as well as the Secretariat, to take this into account in their decisions.  
8.8.  The representative of the United  States  said that, before addressing a systemic issued raised 
in the Appellate Body Report, the US  would first comment on the statement made by Mexico. The 
United  States  said that it was quite disappointing to hear Mexico express concerns with greater 
transparency in the WTO dispute settlement system. Mexico's position wa s surprising, given that it 
had agreed to open dispute  meetings in other international fora and even in some of its own WTO 
disputes. The United  States  said it would be interested in understanding better why Mexico was 
opposed to greater transparency. In t he United  States ' view, public hearings and greater 
transparency of the dispute settlement system promoted greater confidence in the system. It 
allowed other WTO Members and the public to observe the high -quality work of panels and  the 
Appellate Body. The United  States  recalled that in "US – Continued Suspension ", the Appellate 
Body had re asoned that pursuant to Article  18.2 of the DSU, each party had a right to disclose 
statements of its own position to the public and that such statements extended to oral statements 
and answers to questions at a hearing. Thus, a party had the ability to maintain the confidentiality 
of its own statements, but also the ability to request the confidentiality of the proceeding be lifted 
for its statements.7 
8.9.  The Reports of the P anel and Appellate Body in this dispute made findings on a number of 
matters regarding the interpretation and application of the Agreement o n the Implementation of 
Article  VI of the GATT 1994. The United  States  said it understood from those Reports that th ose 
findings turned on the facts and circumstances of the specific anti -dumping investigation at issue 
in this dispute. The United  States  would not comment on those facts and circumstances, and 
related findings, at the present meeting. The United  States , however, said it would like to draw the 
DSB's attention to an important systemic issue which had implications for the operation of the 
dispute settlement system. The issue was how the Appellate Body should approach appeals from 
panel findings on the meaning  of municipal law, as well as how the Appellate Body had approached 
Argentina 's particular appeal in this dispute on the meaning of the EU law being challenged.  
8.10.   In the WTO system, or in any international law dispute settlement system, the meaning of 
munici pal law was an issue of fact. In contrast, the interpretation of the WTO Agreement, or other 
relevant international law, was the  issue of law for that system. This proposition was not 
controversial. For example, one of the standard treatises on internation al law (Brownlie) states 
that "municipal laws are merely facts which express the will and constitute the activities of 
States ".8 The Appellate Body, however, had treated panel findings on the meaning of municipal 
law as a matter of WTO law, to be decided b y the Appellate Body de  novo in an appeal under 
Article  17.6 of the DSU. The Appellate Body had given no rationale – based in the text of the DSU 
or in any other source – for this fundamental departure from the principle that the meaning of 
municipal law w as an issue of fact in international dispute settlement.  
8.11.   In its Report in this dispute, the Appellate Body 's explanation for the proposition that the 
meaning of municipal law was an issue of law under Article  17.6 of the DSU was a single sentence: 
"Just as  it is necessary for the panel to seek a detailed understanding of the municipal law at 
issue, so too is it necessary for the Appellate Body to review the panel's exami nation of that 
                                                
7 "US – Continued Suspension" (AB), Annex IV, paragraph 4.  
8 Brownlie, Principles of Public International Law, at 39 (5th ed. 1998).  WT/DSB/M/387  
 
- 13 - 
 
 municipal law ".9 The only basis that had been given for this assertion wa s a citation to the 
Appellate Body 's own Report in "India – Patents " (US). That Report, however, provided no 
meaningful explanation for this proposition. Ironically, "India – Patents " cited the very same 
international law treatise quoted above, which state d that municipal law was an issue of fact for 
the purpose of internation al dispute settlement.10 That is, the "India – Patents " Report cited a 
treatise that stood for the opposite of what the Appellate Body cited it for.  
8.12.   Further, the Appellate Body 's stated  rationale – that a "detailed understanding " was 
important – said nothing about the proper role of the Appellate Body in reviewing a Panel 's 
findings. Indeed, many factual issues in WTO dispute settlement required "detailed 
understanding ". But that provide d no basis for treating those factual issues as issues of law to be 
decided de novo by the Appellate Body on appeal. The relevant provisions of the DSU reflected this 
straightforward division between issues of fact and law.  As Members knew, Article  6.2 of the DSU 
required a complaining party to set out "the matter " in its panel request comprised of "the specific 
measures at issue " – that is, the core issue of fact – and to "provide a brief summary of the legal 
basis of the complaint " – that is, the issue of  law. Article  11 of the DSU similarly distinguished 
between the panel 's "objective assessment of the facts of the case " and its assessment of "the 
applicability of and conformity with the covered agreements " – that is , the issue of law. And 
Article  12.7 of  the DSU made the same distinction in relation to the findings of fact and law in the 
Panel 's Report. Thus, the DSU made clear that the measure at issue was the core fact to be 
established by a complaining party, and the WTO -consistency of that measure was  the issue of 
law. 
8.13.   The lack of coherence in the Appellate Body 's approach had been noted by other 
commentators. For example, an entry in The Oxford Handbook of International Trade Law stated: 
"[T[he logic of the Appellate Body 's finding [that panel finding s on municipal law are issues of law 
under DSU Article  17.6] is difficult to understand. Just because a panel assesses whether a 
domestic legal act – which represents a fact from the perspective of WTO law – is consistent or 
inconsistent with WTO law does not suddenly turn the meaning of the domestic legal act into a 
question of WTO law  … [T]here must  … be a discernible  line between issues of fact and issues of 
law. After all, the Appellate Body 's jurisdiction is circumscribed precisely by this distinction ".11 
8.14.   The problems with the Appellate Body 's approach were highlighted by this very appeal. One 
of Argentina's claims had been that a provision of EU law, the Basic Regulation, was inconsistent 
"as such " with the Anti -Dumping Agreement. On appeal, Argentina h ad claimed that the Panel had 
erroneously construed that EU law. Argentina 's argument had been based on the text of the EU 
provision, legislative history, a supposed EU practice in several other investigations, a nd certain EU 
court decisions. On appeal, Ar gentina had claimed both that the Panel's interpretation of EU law 
was wrong as a matter of law (although under what provision of the Anti -Dumping Agreement or 
the DSU remained unclear) and that the Panel had failed to make an "objective assessment of the 
matter " under Article  11 of the DSU. Especially given the Panel's alleged error in examining all of 
the different types of evidence introduced by Argentina, the United  States  said that the Appellate 
Body could have, and should have, handled this ma tter as an appeal under Article  11 of the DSU. 
In an Article  11 appeal, of course, the Appellate Body would not have conducted a de novo review 
of EU law, but rather would have examined whether the panel had exceeded its "margin of 
appreciation " as the trier of fa ct. The Appellate Body, however, had examined the meaning of the 
EU law both as a de novo legal issue, and then proceeded to conduct a separate examination of 
whether the Panel had made an objective assessment. The United  States  said that , frankly,  this 
approach did not make sense. It departed from the Appellate Body 's frequent admonition that a 
party should present an issue as an error of law or an error under Article  11, but not both types of 
claims with respect to the same issue.12 Furthermore, it raised the prospect that the Appellate 
Body might find that the Panel had made an objective assessment of a complex factual record, and 
at the same time might find that precisely the same panel finding had been incorrect simply 
because the Appellate Body had made  a different factual determination based on its own de novo 
review.  
                                                
9 Appellate Body Report, "EU – Biodiesel ", paragraph 6.155 (citing "India – Patents " (US)).  
10 Appellate Body Report, "India – Patents" (US), paragraphs 65 and footnote  52. 
11 Jan Bohanes and Nick Lockhart, "Standard of Review in WTO Law", The Oxford Handbook of 
International Trade Law (2009), at 42.  
12 See, e.g., "EC – Fasteners " (China) (A B), paragraph  442; "Chile – Price Band System " (Article  21.5 – 
Argentina) (AB), paragraph  238. WT/DSB/M/387  
 
- 14 - 
 
 8.15.   This type of outcome – which followed from the Appellate Body 's finding that it could 
conduct its own de novo review of the meaning of domestic law – was inconsistent with the 
appropriate functioning of the dispute settlement system. It departed from the basic division of 
responsibilities where panels determined issues of fact and law, and the Appellate Body could be 
asked to review specific legal interpretations and legal conclusions. It a lso represented a serious 
waste of the limited resources of the WTO dispute settlement system, adding complexity and delay 
to the process. No purpose was served by having a panel engage in a detailed review of a factual 
record related to the meaning of a d omestic measure, and then to have the Appellate Body engage 
in its own de novo review of the exact same factual issues, so that the parties had to argue all the 
same factual issues a second time. The United  States  said that it looked forward to discussing 
these important issues with other Members to enhance the effectiveness and efficiency of the 
dispute settlement system.  
8.16.   The DSB took note  of the statements and adopted  the Appellate Body Report contained in 
document WT/DS473/AB/R and Add.1 and the Panel Re port contained in document WT/DS473/R 
and Add.1, as modified by the Appellate Body Report.  
9  ADOPTION OF THE 2016  DRAFT ANNUAL REPORT OF THE DISPUTE SETTL EMENT BODY 
(WT/DSB/W/577)  
9.1.  The Chairman  said he was submitting for adoption the draft text of the 2016 An nual Report 
of the DSB contained in document WT/DSB/W/577. He did so pursuant to the Procedures for an 
Annual Overview of WTO Activities and for Reporting under  the WTO, contained in 
document  WT/L/105. This Report covered the work of the DSB since the prev ious Annual Report 
contained in document WT/DSB/67. In other words, it cove red meetings of the DSB from 
25 November  2015 through to 26  September  2016. The Report contained a factual summary of 
DSB meetings during the period under review. As in the past, fo llowing the adoption of the 
Annual  Report at the present meeting, the Secretariat would update the Report, under its own 
responsibility, in order to include actions taken by the DSB both at  its special meeting held on 
14 October as well as at the present m eeting. Subsequently, the updated Annual Report would be 
submitted for consideration by the General Council at its meeting  scheduled for  7 and 
8 December  2016. The Chairman proposed that the DSB adopt the draft Annual Report of the DSB 
contained in documen t WT/DSB/W/577 on the understanding that it would be further updated by 
the Secretariat.  
9.2.  The DSB took note  of the statement and adopted  the draft Annual Report of the DSB 
contained in WT/DSB/W/577 on the understanding that it would be further updated by th e 
Secretariat.13 
10  PROPOSED NOMINATION FOR THE INDICATIVE L IST OF GOVERNMENTAL AND 
NON-GOVERNMENTAL PANELIS TS (WT/DSB/W/580)  
10.1.   The Chairman drew attention to document WT/DSB/W/580, which contained one additional 
name, proposed by Kenya, for inclusion on the Ind icative List of Governmental and 
Non-Governmental Panelists, in accordance with Article  8.4 of the DSU. The Chairman proposed 
that the DSB approve the name contained in document WT/DSB/W/580.  
10.2.   The DSB so agreed . 
11  APPELLATE BODY MATTE RS 
11.1.   The Chairman  said he w ished to make a short statement regarding the ongoing Appellate 
Body selection process, which had been initiated by the DSB at its meeting on 21  July 2016. As 
Members were all aware, by the deadlin e of 14  September for nominating candidates for the 
vacancy  that had been left by the non -reappointment, seven candidates had been proposed. In 
this regard, and pursuant to the 21  July 2016 DSB decision, Australia, China, Japan and Nepal had 
re-submitted their candidates for the new vacancy and two new nominations  had been submitted 
by Chinese  Taipei and Korea. The interviews by the Selection Committee of the two new 
candidates that had been submitted by Chinese  Taipei and Korea took place on 17  October  2016. 
                                                
13 Subsequently, the 2016 Annual Report of the DSB was circulated in document WT/DSB/71.  WT/DSB/M/387  
 
- 15 - 
 
 He recalled that the five re -nominated candidates from A ustralia, China, Japan and Nepal were not 
required to be interviewed for the second ti me by the Selection Committee. As part of the selection 
process, on 1 and 2  November  2016, the Selection Committee would make itself available to hear 
the views of delega tions on the candidates proposed for the second vacancy left by the 
non-reappointment of one A ppellate Body member. Delegations wishing to meet the Selection 
Committee were invited to contact the Secretariat – Council/TNC Division to make an 
appointment. H e said that many delegations had already done so. Alternatively, delegations could 
send comments in writing to the Chair of the DSB, in care of the Council/T NC Division, by no later 
than 2  November c.o.b. After the consultations with delegations, the Selec tion Committee would 
need to make its recommendation as soon as possible but by no later than 10  November in order 
to be considered by the DSB at its regular meeting on 23  November. The Selection Committee 
would also need to make a recommendation with rega rd to the first selection process so that the 
two new Appellate Body members could be approved by the D SB at its regular meeting on 
23 November  2016. 
11.2.   The representative of China  said her country would like to use this opportunity to express its 
gratitude t o Ms Yuejiao Zhang for her valuable contribution and service to the work of the 
Appellate Body over the past eight years. Chi na wished her all the best and reminded delegations 
that, after the farewell ceremony there would be a farewell reception, which wa s sponsored by the 
Chinese Mission.  
11.3.   The DSB took note  of the statements.  
12  DISPUTE SETTLEMENT W ORKLOAD  
A.  Statement by the Chairman  
12.1.   The Chairman , speaking under "Other Business ", said that as he wished to provide the DSB 
with information about the Appellate  Body's workload, the number of disputes before panels 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 cur rently dealing with two appeals14, including 
the extremely complex compliance proceedings in "EC and Certain Member States – Large Civil 
Aircraft " (Airbus). In addition, five panel reports, expected to be circulated in the following 
three  months, could also be appealed after their circulation.15 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 co uld turn to dealing with them. On 
Panels/Arbitrations, currently, there were  17 active panels (inclu ding three panels under 
Article  21.5 of the DSU) that had not yet issued a final report to the parties. Please note that 
multiple disputes that were being considered simultaneously by the same panel were being 
counted as one. As of the present meeting, there were three composed panels that had been 
assigned staff to assist them and were in the proc ess of commencing proceedings.16 There were an 
additional six panels at the composition stage. In addition, one matter had been referred to  
arbitration under Article  21.3(c) of the DSU, and two matters had been referr ed to arbitration 
under Article  22.6 of the DSU.  
12.2.   The DSB took note  of the statement.  
__________  
                                                
14 DS316 "EC and Certain Member States – Large Civil Aircraft" (Article 21.5 – US); and  
DS475  "Russia -Pigs".  
15 DS442 "EU – Fatty Alcohols" (Indonesia); DS471 "US – Anti-Dumping Methodologies" (China); 
DS477/DS478 "Indonesia – Import Licensing Regimes"; DS479 "Russia – Commercial Vehicles"; and 
DS487  "US – Tax Incentives".  
16 DS48 0 "EU – Biodiesel" (Indonesia); DS505 " US – Supercalendared Paper";  and 
DS437  "US Countervailing Measures" (China) (Article 21.5 - China) .