RESTRICTED  
  
WT/DSB/M/342  
 
16 May 2014  
(14-3003)  Page: 1/29  
Dispute Settlement Body  
26 February 2014    
 
 MINUTES OF MEETING 
HELD IN THE CENTRE WILLIAM RAPPARD 
ON 26 FEBRUARY 2014 
Chairman: Mr. Jonathan Fried (Canada) 
Table of Contents 
1   SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY 
THE DSB ....................................................................................................................... .... 2 
A.  United States – Section 211 Omnibus Appropriations Act of 1998: Status report by 
the United States .............................................................................................................. 2  
B.  United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan: Status report by  the United States ............................................................................ 6  
C.  United States – Section 110(5) of the US Copyright Act: Status report by 
the United States .............................................................................................................. 7  
D.  European Communities – Measures affect ing the approval and marketing of biotech 
products: Status report by  the European  Union ..................................................................... 7  
E.  Thailand – Customs and fiscal measures on cigarettes from the Philippines: Status 
report by Thailand ............................................................................................................  8 
F.  United States – Anti-dumping measures on certain shrimp from Viet Nam: Status 
report by the Un ited States ................................................................................................ 9  
G.  Canada – Certain Measures Affect ing the Renewable Energy Generation 
Sector/Canada – Measures Relating to the Feed-In Tariff Program: Status report 
by Canada ..................................................................................................................... .. 9 
H.  China – Definitive Anti-Dumping duties on X-Ray Security Inspection Equipment from 
the European Union: Stat us report by China ........................................................................ 10 
2   UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 
2000: IMPLEMENTATION OF THE RECOMME NDATIONS ADOPTED BY THE DSB .............. 11  
A.  Statements by the Eu ropean Union and Japan ................................................................. 11 
3   CHINA – CERTAIN MEASURES AFFECT ING ELECTRONIC PAYMENT SERVICES ........... 12  
A.  Statement by th e United States .................................................................................... 12 
4   UNITED STATES – MEASURES AFFECTING THE CROSS-BORDER SUPPLY OF 
GAMBLING AND BETTI NG SERVICES .............................................................................. 13  
A.  Statement by Antigua and Barbuda regarding the implementation of the 
recommendations and ruling s adopted by the DSB ............................................................... 13 
5   UNITED STATES – MEASURES AFFECTING THE PRODUCTION AND SALE OF 
CLOVE CIGARETTES........................................................................................................ 16  
A.  Communication from  the Europe an Union ....................................................................... 16 
6   EUROPEAN UNION – MEASURES ON ATLANTO-SCANDIAN HERRING ......................... 21  
A.  Request for the establishment of a panel by Denmark in respect of the Faroe Islands ............ 21 WT/DSB/M/342 
 
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  7   UKRAINE – DEFINITIVE SAFEGUARD MEASURES ON CERTAIN PASSENGER 
CARS .......................................................................................................................... .... 22 
A.  Request for the establis hment of a pane l by Japan ........................................................... 22 
8   UNITED STATES – CERTAIN METHODOLOGIES AND THEIR APPLICATION TO 
ANTI-DUMPING PROCEEDINGS  INVOLVING CHINA ....................................................... 23  
A.  Request for the establis hment of a pane l by China ........................................................... 23 
9   CHINA – COUNTERVAILING AND ANTI-DUMPING DUTIES ON GRAIN 
ORIENTED FLAT-ROLLED ELECTRICAL ST EEL FROM THE UNITED STATES ...................... 24  
A.  Recourse to Article 21.5 of the DSU by the United States: request for the 
establishment of a panel ................................................................................................... 24 
10   AB SELECTION PROCESS UPDATE ............................................................................ 25  
 
 
1  SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB 
A.  United States – Section 211 Omnibus Appropriations Act of 1998: Status report by 
the United States (WT/DS176/11/Add.134) 
 
B.  United States – Anti-dumping measures on certain hot-rolled steel products from Japan: Status report by the United States (WT/DS184/15/Add.134) 
 
C.  United States – Section 110(5) of the US Copyright Act: Status report by the United States (WT/DS160/24/Add.109)  
D.  European Communities – Measures affecting the approval and marketing of biotech products: 
Status report by the European Union (WT/DS291/37/Add.72)  
E.  Thailand – Customs and fiscal measures on cigarettes from the Philippines: Status report 
by Thailand (WT/DS371/15/Add.21)  
F .   U n i t e d  S t a t e s  –  A n t i - d u m p i n g  m e a s u r e s  o n  c e r t a i n  s h r i m p  f r o m  V i e t  N a m :  S t a t u s  r e p o r t  b y  
the United States (WT/DS404/11/Add.20)  G.  Canada – Certain Measures Affecting the Renewable Energy Generation Sector/Canada – 
Measures Relating to the Feed-In Tariff Progra m: Status report by Canada (WT/DS412/17 – 
WT/DS426/17)  
H.  China – Definitive Anti-Dumping duties on  X-Ray Security Inspection Equipment from the 
European Union: Status report by China (WT/DS425/9)  
 
1.1.  The Chairman noted that there were eigh t sub-items under this Agenda item concerning 
status reports submitted by delegations as required under Article 21.6 of the DSU. He recalled that 
this provision was included by the DSU negotiators so  as to foster creative and progressive ways of 
ensuring implementation until the issue was resolv ed. Once again, he urged 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. With these introductory remarks, the 
Chairman proposed to turn to the first status report on the Agenda of the present meeting.  
A.  United States – Section 211 Omnibus Appr opriations Act of 1998: Status report by 
the United States (WT/DS176/11/Add.134) 
1.2.  The Chairman drew attention to docu ment WT/DS176/11/Add.134, which contained the 
status report by the United States on progress in the implementation of the DSB's 
recommendations in the case concerning US Section 211 Omnibus Appropriations Act of 1998. 
1.3.  The representative of the United States said  that his country had provided a status report in 
this dispute on 13 February 2014, in accordance with Article 21.6 of the DSU. At least six bills had 
been introduced in the current Congress in relation to the DSB's recommendations and rulings in this dispute. These included H.R. 214, H.R. 778, H.R. 872, H.R. 873, H.R. 1917 and S. 647. The WT/DSB/M/342 
 
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  US Administration would continue to work on solutions to implement the DSB's recommendations 
and rulings. 
1.4.  The representative of the European Union sa id that the EU thanked the United States for its 
most recent status report and the statement made  at the present meeting. The EU hoped that the 
US authorities would resolve this matter very soon. 
1.5.  The representative of Cuba said that her country had just heard, once again, and for the 
134th time, the US status report, which remained unchanged for the past many years reiterating 
that "relevant legislation has been introduced in  the current 113th session of the Congress". Cuba 
was assuming that "relevant legislation" meant the same bills that had been mentioned up until 
November 2013, but had never proceeded through legi slative channels or offered a solution to this 
dispute. The fact that these had been removed fr om the report confirmed that the United States 
did not envisage any solution or intend to meet it s legal obligations in this dispute. February 2014 
marked 12 years since the DSB had adopted the Appellate Body Report and had requested the 
United States to bring Section 211, which had been found to be inconsistent with the TRIPS Agreement, into conformity with those provisions. The situation of non-compliance was of concern 
to Cuba and to a large number of Members, in particular developing-country Members. The fact 
that one of the key players in the WTO had been violating its rules for such a long time demonstrated that the dispute settlement mechanism, which was already extremely costly, did not 
ensure compliance with the WTO Agreements or pr ovide a secure means of settlement of disputes. 
Failure to comply in this dispute concerned intellectual property rules, which was an area where the United States was a frequent complainant in various fora. Recently, on 31 January 2014, the "Inside US Trade" newsletter had announced that the US Chamber of Commerce had released an 
index of 25 countries infringing intellectual property . The criteria used related to the protection of 
patents, copyright, trademarks, trade secrets, market access and compliance following accession 
to and ratification of international treaties. The index established categories of compliance with 
intellectual property rights and gave each category a specific weight. The United States, a WTO 
Member that blatantly violated these rights and consistently failed to comply with its WTO obligations, gave itself the highest score, with 28.52 out of a maximum of 30, while accusing some 
developing countries of violating the current international intellectual property system and 
questioning their domestic policies in this area. This was an auditing exercise that the 
United States conducted every year. The country that consistently failed to comply with its obligations unilaterally assumed the right to judge other WTO Members and it imposed sanctions 
on them for alleged intellectual property vi olations. Meanwhile, under Section 211, the 
United States continued to infringe the intellectual property rights of Cuban trademark holders on US territory, violating commercial and international law and allowing the fraudulent sale of 
products that were not produced in Cuba, using the Havana Club trademark. This usurpation of the 
Havana Club trademark by the United States was a reality. The purpose of keeping Section 211 in force was to deny the right to renew registration of the trademark, hence the unending delay in 
complying with the DSB's recommendations and rulings. Cuba found it impossible to remain silent 
in the face of this situation of impunity that undermined confidence in the multilateral trading system. In Cuba's view, it was Members' collective responsibility to preserve the effectiveness and credibility of the institutions that had taken so much time and effort to establish. It was also an 
obligation to demand unconditional compliance with the commitments assumed by all the 
Members, and in this particular case the solution was to repeal Section 211.  
1.6.  The representative of Zimbabwe said that his country thanked the United States for its status 
report and thanked Cuba for the information it had just provided. Zimbabwe, however, was 
disappointed and regretted that the United States had continued to disregard the DSB's rulings and recommendations in this dispute concerning  Section 211. This continued failure by the 
United States to comply seriously undermined the in tegrity of the DSB as we ll as the efficacy and 
effectiveness of its rulings. Zimbabwe and othe r Members had, for a number of years now, been 
calling on the United State to end this flagrant violation of WTO rules and to honour its obligations. Zimbabwe, therefore, strongly supported Cuba's position and urged the United States to comply 
with the relevant DSB's rulings and recommendations. 
1.7.  The representative of China said that her country thanked the United States for its status 
report and the statement made at the presen t meeting. China believed that the prolonged 
situation of non-compliance in this dispute was highly incompatible with the prompt compliance 
requirement under the DSU, in particular since the interests of a developing-country Member were WT/DSB/M/342 
 
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  affected. China urged the United States to implement the DSB's recommendations and rulings 
without any further delay. 
1.8.  The representative of Brazil said that hi s country thanked the United States for its status 
report on the surveillance of implementation in th is dispute. Brazil noted that, once again, the 
United States reported lack of progress. Brazil  remained concerned about this situation of non-
compliance with the DSB's recommendations and urged the United States to bring its measures 
into conformity with WTO rules. 
1.9.  The representative of the Russian Federation  said that his country believed that the dispute 
settlement system guaranteed the stability of th e multilateral trading system. Russia urged the 
interested parties to finally reach a solution by using all the instruments available to them under the WTO Agreements. In Russia's view, the current situation undermined Members' confidence in 
the DSB and the WTO as a whole. 
1.10.  The representative of India said that his country thanked the United States for its status 
report and the statement made at the presen t meeting. India noted that, yet again, the 
United States did not report any progress. Once again, India was compelled to stress that the 
principle of prompt compliance was missing in this dispute. India renewed its systemic concern 
about the situation of continued non-compliance by Members which undermined the credibility and confidence that Members reposed in the system. India urged the United States to report full 
compliance without any further delay. 
1.11.  The representative of Ecuador said that his country supported Cuba's statement made at 
the present meeting. Ecuador, once again, recalled that Article 21 of the DSU referred to prompt 
compliance with the DSB's recommendations and rulings, in particular since the interests of a 
developing-country Member were affected. Ecuador hoped that the United States would step up its 
efforts in order to promptly comply with the DSB's recommendations and rulings by repealing 
Section 211. 
1.12.  The representative of Nicaragua said that his country thanked the United States for its 
status report. Nicaragua, once again, supported Cuba's statement in this dispute concerning 
Section 211 and the rights of Cuban owners of the Havana Club Rum trademark. Nicaragua noted 
that, for more than 12 years, the US status report did not report on any concrete steps taken 
towards the implementation of the DSB's recommend ations. Nicaragua noted the lack of political 
will on the part of the United States to inform the DSB of any progress made with regard to the bills submitted to Congress. Nicaragua was concerned about the continued US failure to comply 
with the DSB's recommendations and rulings, which undermined the credibility and efficiency of 
the DSB and the multilateral trading system. The US non-compliance could also set a precedent with consequences for other Members, in particular developing-country Members. Nicaragua, 
therefore, hoped that the United States would in troduce the necessary legislative reforms without 
delay so as to comply with the DSB's recommendations and rulings. 
1.13.  The representative of El Salvador said that her country thanked the United States for its 
status report. El Salvador joined the previous speakers in expressing its concern about the US lack 
of compliance in this dispute. This situatio n of non-compliance affected the interests of a 
developing-country Member and undermined the multilateral trading system. El Salvador urged the parties to this dispute to find a way to promptly comply with the DSB's recommendations and 
rulings.  
1.14.  The representative of Jamaica said that her country thanked Cuba for its statement and the 
United States for its status report and update. Jamaica, once again, joined the previous speakers 
in expressing its concern about the US failur e to implement the DSB's recommendations of 
February 2002 with respect to Section 211. The protracted US failure to take the steps necessary to comply with its obligations under the DSU was incompatible with its requirement for prompt and 
effective implementation of decisions. This was of particular concern in cases such as this where 
the failure to meet its obligations had an adverse effect on the economic interest of a developing-country Member. Furthermore, Jamaica was compelled to express its deep concern about the systemic implications of any disregard for decisi ons under the DSU. Such disregard could serve to 
undermine the overall integrity of the dispute se ttlement system, which remained a cornerstone of 
the WTO. Jamaica urged the United States to take the required steps to promptly comply with the 
DSB's recommendations and rulings.  WT/DSB/M/342 
 
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  1.15.  The representative of Angola said that his country thanked the United States for its status 
report in this dispute concerning Section 211. This issue had been discussed on many occasions 
over many years without any real solution for Cuba . Angola believed that lack of progress in this 
dispute undermined the efficiency and credibility of the DSB and the multilateral trading system in general. The DSB's recommendations and rulings must be respected because all Members must 
benefit in the same way and have to comply with the same obligations. In Angola's view, it would 
be regrettable if the dispute settlement system, which was important to the multilateral trading 
system, was affected because of measures taken by one Member that were contrary to its 
obligations. Angola supported Cuba's statement rega rding this dispute and urged the United States 
to bring its laws into conformity with the DSB's recommendations and rulings.  
1.16.  The representative of Argentina said that his country thanked the United States for its 
status report and the statement made at the present meeting. Argentina, once again, regretted 
that 12 years after the adoption of the DSB's recommendations and rulings in this case, the 
United States did not provide any substantive information on the matter. Argentina would have preferred if the United States had informed the DS B of the status of, or developments regarding, 
the various bills that had been introduced during the current 113th session of the US Congress, as 
suggested by Mexico at previous meetings. In Argentina's view, the lack of progress was inconsistent with the principle of prompt and effective implementation stipulated in the DSU 
provisions, in particular since the interests of  a developing-country Member were affected. 
Argentina, once again, supported Cuba in its request and urged the parties to the dispute, in particular the United States, to take the necessar y measures to finally remove this item from the 
DSB's Agenda. 
1.17.  The representative of the Bolivarian Republic of Venezuela said that his country supported 
Cuba, a developing-country Member that challenged the inconsistency of Section 211. The DSB 
had adopted the recommendations regarding Section 211, but the United States had yet to 
comply. The current situation of non-compliance not only affected Cuba, but also set a negative 
precedent for the credibility of the WTO and its ab ility to resolve disputes. Venezuela, therefore, 
urged the United States to end this non-compliance and to report, at the next DSB meeting, on 
the measures it intended to take to resolve this dispute.  
1.18.  The representative of Chile said that his country, once again, wished to reiterate its 
systemic concern about the US failure to comply with the DSB's recommendations and rulings, in 
particular since the interests of a developing-co untry Member were affected. Chile hoped that the 
United States would take the appropriate action to comply in this dispute.  
1.19.  The representative of Dominica, speaking on behalf of the Organization of Eastern 
Caribbean States1, thanked the United States for its status report and for its statement made at 
the present meeting. The OECS countries remained concerned about the continued non-
compliance with the DSB's rulings and recommendations, in particular since this had a negative economic impact on a small developing country. The OECS countries, therefore, urged the 
United States to implement the DSB's ruling s and recommendations without further delay. 
1.20.  The representative of Mexico said that his country, once again, urged the parties to this 
dispute to take necessary steps to comply with the DSB's recommendations and rulings to the 
benefit of all Members, in accordance with Article 21.2 of the DSU. 
1.21.  The representative of the United States said that his country would like to make two points 
in response to the comments made at the present meeting. First, in response to comments about 
systemic concerns about the dispute settlement system, the facts simply did not justify such 
concerns. The record was clear: the United States had come into compliance, fully and promptly, 
in the vast majority of its disputes. As for the remaining few instances where its efforts to do so had not been entirely successful, the United States was actively working towards compliance. 
Second, there were references at the present meeting to actions that the United States had 
recently taken to protect its intellectual property rights internationally in the territories of other Members. It was of course true that the United States had been and remained a strong advocate for substantial protections for intellectual property rights internationally. However, any suggestion 
that the United States did not apply the same high standard in its own territory was unfounded 
                                               
1 Antigua and Barbuda, Dominica, Grenada, St. Ki tts and Nevis, St. Lucia and St. Vincent and the 
Grenadines. WT/DSB/M/342 
 
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  and ill-placed. In that regard, Members should recall that Section 211 addressed the 
uncompensated expropriation of assets or businesses. Members should also recall that the 
Appellate Body in this dispute had not challeng ed the right of the United States to refuse 
recognition "in its own territory [to] trademarks, trade names or other rights relating to any intellectual property or other property rights that ... have been expropriated or otherwise 
confiscated in other territories". Instead, the Appellate Body had found that – when a Member 
chose not to recognize intellectual property rights in its own territory relating to a confiscation of rights in another territory – its measures must comport with the national treatment and MFN 
obligations of the TRIPS Agreement. The United States delegate hoped that this explanation 
helped clarify any concerns about any potential inconsistency in the US position. 
1.22.  The representative of Cuba said that her country wished to make a brief statement to clarify 
some of the legal arguments raised. First, Cuba had systemic concerns regarding the Section 211 
dispute. In a multilateral organization that sought to protect the multilateral trading system, it was 
not acceptable to comply with some of the reco mmendations of the DSB but with all of them. If 
some of those recommendations had not been implemented for 12 years this had an impact on the 
system, and it was costly, in particular for developing-country Members such as Cuba. Second, 
Cuba noted that the United States had mentioned that it was a strong advocate for the protection of intellectual property as such. If so, this di spute was an opportunity for the United States to 
prove it through action, by repealing a law and measures, which directly affected intellectual 
property rights. Cuba also wished to make some comments with regard to the issue of nationalization and the US argument, raised in th e context of the proceedings in this dispute, 
namely, that Cuba's concerns with Section 211 might be unfounded because it was a measure 
linked to the uncompensated appropriation of a ssets. Paragraph 111 of the Appellate Body Report 
stated that the United States "contends that Section 211 is an expression of the long-standing doctrine of the United States that those whose claim to ownership of a trademark is based on an 
uncompensated confiscation of assets cannot claim rights of ownership in the United States, 
absent the consent of the owners whose assets were confiscated". In Cuba's view, merely mentioning its doctrine during the dispute settlement proceedings did not give the United States 
the right to assume that this was recognized in law. Moreover, this argument had no basis if one 
looked at how the process of nationalization took place in Cuba. It was the United States that had prevented its nationals from being duly compen sated while the Cuban Government had always 
been in favour of doing so. In Cuba's view, it was unacceptable for the United States to suggest 
that the DSB had accepted the non-recognition of expropriation without compensation by a 
Member in as much as paragraph 362 of the Appellate Body's concluding remarks, which 
recognized another meaning. Cuba wished to point out that in the specific case of the only 
trademark that was affected by Section 211, na mely the Havana Club, the associated assets 
nationalized in Cuba belonged to the José Arechabala Corporation, which was not a US national. Therefore, any claim by the United States in defenc e of an entity that was not a US national when 
it was taken was unacceptable, as this would amo unt to the misrepresentation of a foreigner by 
another state. Through all the compensation agr eements that had been signed by Cuba, a basic 
accepted principle was that the claimants had to be nationals of the claimant state when the property claimed was taken. These were serious legal matters that directly affected Cuba and were 
part of the economic, trade and financial embargo imposed illegally and unilaterally by the 
United States. The Section 211 case was one aspect of the blockade which cost Cuba, a developing country-Member, billions of dollars. 
1.23.  The Chairman said that this sub-item co ncerned a specific ruling, but there was always a 
broader context in any particular dispute. He appreciated that most of the statements made had 
been focused on the implementation issue. As required under the DSU, the DSB collectively take 
note of all the statements and until such a time as there was full compliance, the DSB would revert 
to this matter.   
1.24.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
B.  United States – Anti-dumping measur es on certain hot-rolled steel products 
from Japan: Status report by the United States (WT/DS184/15/Add.134) 
1.25.  The Chairman drew attention to document WT/DS184/15/Add.134, which contained the 
status report by the United States on pr ogress in the implementation of the DSB's WT/DSB/M/342 
 
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  recommendations in the case concerning US anti-dumping measures on certain hot-rolled steel 
products from Japan. 
1.26.  The representative of the United States said that his country had provided a status report in 
this dispute on 13 February 2014, in accordance wi th 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 ha d yet to be addressed, the US Administration 
would work with the US Congress with respect to appropriate statutory measures that would 
resolve the matter. 
1.27.  The representative of Japan said that his country thanked the United States for its 
statement and the status report submitted on 13 February 2014. Japan referred to its previous 
statements regarding its hope that this issue would be resolved as soon as possible. 
1.28.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
C.  United States – Section 110(5) of the US Copyright Act: Status report by 
the United States (WT/DS160/24/Add.109) 
1.29.  The Chairman drew attention to document WT/DS160/24/Add.109, which contained the 
status report by the United States on pr ogress in the implementation of the DSB's 
recommendations in the case concerning Section 110(5) of the US Copyright Act. 
1.30.  The representative of the United States said that his country had provided a status report in 
this dispute on 13 February 2014, in accordan ce 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. 
1.31.  The representative of the European Union sa id that the EU thanked the United States for its 
status report and its statement made at the pr esent meeting. The EU referred to its previous 
statements regarding its wish to resolve this case as soon as possible. 
1.32.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
D.  European Communities – Measures affect ing the approval and marketing of biotech 
products: Status report by the Eu ropean Union (WT/DS291/37/Add.72) 
1.33.  The Chairman drew attention to document WT/DS291/37/Add.72, which contained the 
status report by the European Union on pr ogress in the implementation of the DSB's 
recommendations in the case concerning measures affecting the approval and marketing of 
biotech products. 
1.34.  The representative of the European Union said that, in recent DSB meetings, the EU had 
already reported on authorization decisions taken up to January 2014. At the last DSB meeting, 
the United States had enquired about the application for cultivation of GM maize 1507. A European Commission proposal for a decision to authorize the placing on the market of GM maize 1507 for 
cultivation had been presented to the Council of  the European Union for adoption. Since at its 
meeting of 11 February 2014, the Council had been unable to reach a decision by qualified majority either in favour or against the Commission proposal to authorize the placing on the market of 1507 for cultivation and the 3-month period  dedicated to the Council to take a decision 
had elapsed on 12 February 2014, these measures were now to be adopted by the European 
Commission in accordance with the applicable rules. The standing committee of 21 January 2014 had voted on a draft authorization decision for an oilseed rape
2, for food and feed uses, and had 
rendered no opinion. The draft decision would be presented to the Appeal Committee for a vote on  
 
                                               
2 GT73 oilseed rape. WT/DSB/M/342 
 
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  27 February 2014. In addition, the standing commi ttee of 20 February 2014 had voted on a draft 
authorization decision for a cotton product3, for food and feed uses, and had rendered no opinion. 
The draft decision would be pres ented to the Appeals Committee. 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. The GMO regulatory regime was working normally as evidenced by 
the approval decisions and other actions towards ap proval decisions just mentioned. The details on 
the relevant products were set out in the EU's written statement. 
1.35.  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 recalled most 
recently at the January DSB meeting, the EU had yet to address the product-specific DSB recommendation and ruling with respect to a variety of biotech corn known as BT-1507. The EU had also raised this issue at the present meeting. The application for approval of this product had 
been pending since 2001. In 2006, the DSB had found that the EU had breached its WTO 
obligations with respect to this product by not undertaking and completing approval procedures without undue delay.
4 The United States in this regard also took note that the EU's own scientific 
authority had issued positive opinions on this application for approval at least six times between 
2005 and 2012. In a development that was referred to by the EU, the United States understood that earlier in February, the EU Council had considered a regulation that finally would have 
authorized the approval of this product. The United  States regretted, however, that apparently the 
EU Council had declined to adopt the regulation. The United States further noted that the difficulties that had been faced by this applic ation exemplified the problems with EU measures 
affecting the approval of biotech products, and th e United States urged the EU to take steps to 
address these matters. However, in regard to the EU's intervention at the present meeting, it 
would be useful to get a clarification. The EU had stated that the Commission may take some sort of action with respect to this product and may approve it despite the fact that the Council had not 
adopted the regulation. The United States asked if the EU could clarify the status of the situation. 
1.36.  The representative of the European Union said that the EU was pleased to clarify how its 
rules functioned. The EU could confirm that the measures were now to be adopted by the 
European Commission, in accordance with the applicable rules. 
1.37.  The representative of the United States said  that, although this would have been a positive 
development, it also exemplified the problems with  EU measures affecting the approval of biotech 
products generally. Additional action by the Commission in the face of EU Council opposition was 
an extraordinary procedural step, and inevitably resulted in substantial delays. 
1.38.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
E.  Thailand – Customs and fiscal measures  on cigarettes from the Philippines: Status 
report by Thailand (WT/DS371/15/Add.21) 
1.39.  The Chairman drew attention to document WT/DS371/15/Add.21, which contained the 
status report by Thailand on progress in the implementation of the DSB's recommendations in the 
case concerning Thailand's customs and fiscal measures on cigarettes from the Philippines. 
1.40.  The representative of Thailand said that in its most recent status report, Thailand had 
indicated that it was continuing to prepare responses to the Philippines' recent request for 
additional information regarding certain aspects of Thailand's implementation and that it had 
provided some of these responses to the Philippi nes. Notwithstanding the current uncertainties in 
capital, Thailand hoped to provide the remainin g responses shortly and would discuss the relevant 
modalities bilaterally with the Philippines. Thailand looked forward to continuing its discussions 
with the Philippines and to resolving this matter in an amicable manner.  
1.41.  The representative of the Philippines said that his country thanked Thailand for its status 
report and for the statement made at the present meeting. Unfortunately, there were no new 
developments to report at the present meetin g. As it had mentioned at the January 2014 DSB 
                                               
3 T304-40 cotton. 
4 "European Communities – Measures Affecting th e Approval and Marketing of Biotech Products" 
(WT/DS291/R), adopted on 21 November 2006, at para. 8.18(a)(xi). WT/DSB/M/342 
 
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  meeting, the Philippines had asked Thailand for information on two issues concerning the 
implementation of the DSB's recommendations and ru lings in this dispute. Both issues related to 
customs valuation. The first concerned a recent deci sion by the Thai Attorney General to prosecute 
an importer of Philippine goods, and several of the importer's current and former employees, for 
alleged under-declaration of customs values in the 2003-2007 time-period, which included the 
period covered by the DSB's recommendations and rulings in this dispute. The importer had not 
yet been formally notified of the charges, and the Philippines' efforts to obtain more information on 
the bilateral level, thus far, remained unanswer ed. The second issue on which the Philippines had 
been trying to obtain more info rmation concerned a decision by the Thai Customs Board of Appeals 
to reject the declared transaction values for 210 entries of Philippine goods from 2002. The Philippines' questions on this matter dated back to September 2013. To date, the Philippines had 
not received anything other than indications that  Thai Customs was working on preparing answers 
to these questions. The Philippines was continuing  bilateral discussions to resolve the remaining 
issues in this dispute and hoped to be able to report on developments in that regard at the next regular DSB meeting.  
1.42.  The Chairman said that all Members hoped that further developments would be reported at 
the next meeting. 
1.43.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. F.  United States – Anti-dumping measures on certain shrimp from Viet Nam: Status 
report by the United States (WT/DS404/11/Add.20) 
1.44.  The Chairman drew attention to document WT/DS404/11/Add.20, which contained the 
status report by the United States on progress in the implementation of the DSB's 
recommendations in the case concerning US an ti-dumping measures on certain shrimp from 
Viet Nam. 
1.45.  The representative of the United States said that his country had provided a status report in 
this dispute on 13 February 2014, in accordance with Article 21.6 of the DSU. As the United States 
had noted at past DSB meetings, the US Department of Commerce had published a modification to 
its procedures in February 2012 in order to implement the DSB's recommendations and rulings 
regarding the use of "zeroing" in anti-dumping reviews. That modification addressed certain 
findings in this dispute. The United States would continue to consult with interested parties as it worked to address the DSB's recommendations and rulings. 
1.46.  The DSB took note of the statement and agreed to revert to this matter at its next regular 
meeting. 
G.  Canada – Certain Measures Affect ing the Renewable Energy Generation 
Sector/Canada – Measures Relating to the Feed-In Tariff Program: Status report by 
Canada (WT/DS412/17 – WT/DS426/17) 
1.47.  The Chairman drew attention to docu ment WT/DS412/17 – WT/DS426/17, which contained 
the status report by Canada on progress in the implementation of the DSB's recommendations in 
the cases concerning Canada's measures affecting the renewable energy generation sector and the measures relating to the feed-in tariff program. 
1.48.  The representative of Canada said that his country was providing the status report pursuant 
to its obligation under Article 21.6 of the DSU. As already indicated by the Chair, the 
documentation for this item had been circulated in documents WT/DS412/17 and WT/DS426/17. Canada recalled that, on 24 May 2013, the DSB had adopted recommendations and rulings in the 
FIT disputes, DS412 and DS426. Canada, Japan and the European Union had agreed shortly 
thereafter that the reasonable period of time for Canada to implement these recommendations and rulings would end on 24 March 2014, and they had jointly notified the DSB of this agreement on 
29 July 2013. On 12 June 2013, the Minister of En ergy of the Province of Ontario had issued a 
Ministerial Directive setting out that large procurements under the FIT program would be replaced with a new competitive procurement process through requests for proposal. As a result, large wind and solar electricity procurement were no longer subject to the domestic content requirements of 
the FIT program. On 16 August 2013, the Minister of  Energy of the Province of Ontario had issued WT/DSB/M/342 
 
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  a Ministerial Directive that lowered significantly the domestic content requirements for 
procurement of wind and solar electricity under the FIT program more generally. On 
11 December 2013, the Government of Ontario ha d tabled legislation (known as Bill 153 – 
Complying with International Trade Obligations Act, 2013) to remove domestic content requirements completely from the FIT program. Canada would continue to work with the 
Government of Ontario to ensure that the DSB's recommendations and rulings would be 
implemented on time. 
1.49.  The representative of Japan said that his country thanked Canada for its statement and the 
status report submitted on 13 February 2014. Japan took note of the actions taken by Canada to 
implement the DSB's recommendations and rulings and welcomed the fact that the Government of Ontario had tabled legislation to remove domestic content requirements from the FIT program in December 2013. Japan expected that the bill would be passed and be in force by 24 March 2014 
when the reasonable period of time for this dispute expired. Japan would closely monitor a new 
competitive procurement process, which would replace the FIT program. Since this dispute made it clear that the domestic content requirements under the FIT program were inconsistent with the 
WTO Agreements, Japan expected full resolution of this dispute within the reasonable period of 
time.  
1.50.  The representative of the European Union said that the EU thanked Canada for its status 
report. The EU had taken good note of the action s undertaken by the Government of Ontario thus 
far, in particular the plan to remove domestic content requirements from the FIT program. The EU 
trusted that the proposed amendment to the Electricity Act would be expeditiously considered by the Ontario Parliament with a view to its adoption before the end of the reasonable period of time. 
The EU asked Canada to keep the EU and the DSB informed of developments in that regard. The 
EU further noted the information in the status report according to which the FIT program would be discontinued for large projects, and would be replaced with a new competitive process through 
requests for proposals. This was a legitimate policy option. That said, the EU wished to recall that 
domestic content requirements should be eliminated also if the specific modalities of public support to renewable energy changed. The EU, therefore,  trusted that any new system introduced to 
replace the FIT program would ensure fair competition between domestic and imported generation 
equipment. 
1.51.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
H.  China – Definitive Anti-Dumping duties on X-Ray Security Inspection Equipment from 
the European Union: Status report by China (WT/DS425/9) 
1.52.  The Chairman drew attention to document  WT/DS425/9, which contained the status report 
by China on progress in the implementation of the DSB's recommendations in the case concerning 
China's anti-dumping duties on x-ray security inspection equipment from the European Union.  
1.53.  The representative of China said that, in accordance with Article 21.6 of the DSU, China had 
provided a status report in this dispute on 13 February 2014. On 10 January 2014, the Ministry of 
Commerce of China had published a notice and had launched a reinvestigation on the x-ray security inspection equipment from the European  Union. On 19 February 2014, the Ministry of 
Commerce had issued the determination (Notice (2014) No. 9) and the anti-dumping duty at issue 
had been terminated. Through these efforts, China had fully implemented the DSB's rulings and 
recommendations in this dispute. 
1.54.  The representative of the European Un ion said that the EU thanked China for the 
information provided at the present meeting according to which the measures at issue in this 
dispute had been terminated as from 19 Febr uary 2014. The EU appreciated that China had 
complied in such a clear manner with the DSB's recommendations and rulings in this dispute. The 
EU hoped that this marked a change in the way trade defence measures were used in China and 
that such measures would only be imposed when strict conditions provided for in the Anti-Dumping Agreement were met. In particular, certain Panel's findings in this dispute (such as, for example, the findings on the methodology followed by China's authorities in its price effects 
analysis or on transparency) were also relevant fo r other investigations. The EU expected that they 
would be followed in other cases. WT/DSB/M/342 
 
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  1.55.  The Chairman noted that this matter wo uld now be removed from the DSB's Agenda and 
the DSB would not revert to it at its next meeting. He thanked the parties to this dispute for 
having found a mutually acceptable solution to this matter. 
1.56.  The DSB took note of the statements. 
2  UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: 
IMPLEMENTATION OF THE RECOMME NDATIONS ADOPTE D BY THE DSB 
A.  Statements by the European Union and Japan 2.1.  The Chairman said that this item was on th e Agenda of the present meeting at the request of 
the European Union and Japan. He then invited the respective representatives to speak. 
2.2.  The representative of the European Union said that, once again, the EU requested that the 
United States stop transferring anti-dumping an d countervailing duties to the US industry. Such 
disbursements were clearly 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 
to submit status reports in this dispute. 
2.3.  The representative of Japan said that, since the distributions under the CDSOA had been 
continuing, Japan, once again, urged the United States to stop the illegal distributions in order to 
resolve this long-standing dispute. Japan was of the view that the United States was under obligation to provide the DSB with a status report in this dispute in accordance with Article 21.6 of 
the DSU. 
2.4.  The representative of Brazil said that hi s country thanked the EU and Japan for keeping this 
item on the DSB's Agenda. As it had expressed at previous DSB meetings, Brazil was a party to 
this dispute and was of the view that the United States was under obligation to submit status 
reports in this dispute until such time that no more disbursements were made pursuant to the 
Byrd Amendment. In order for the repeal of the Byrd Amendment to be considered compliant with 
the WTO, it should have entailed a discontinuation of disbursements originating in the new and old 
investigations. Only then would the issue be resolved within the meaning of the DSU and the 
United States would be released from its obligations to provide status reports in this dispute. 
2.5.  The representative of India said that his country thanked the EU and Japan for bringing this 
issue before the DSB once again. India shared their concerns and supported their views. India 
agreed with the previous speakers that this issue should remain subject to the surveillance of the 
DSB until the United States fully implemented the DSB's rulings and recommendations. 
2.6.  The representative of Canada said that his country agreed with the statements made by the 
previous speakers. 2.7.  The representative of Thailand said that, li ke the previous speakers, Thailand's position had 
not changed. Thailand urged the United States to cease the disbursements and fully implement the 
DSB's rulings and recommendations on this matter. 
2.8.  The representative of the United States said that, as his country had noted at previous DSB 
meetings, the President had signed the Deficit Reduction Act into law in 2006, including a provision 
repealing the Continued Dumping and Subsidy Offset Act of 2000. Accordingly, the United States 
had taken all actions necessary to implement the DSB's recommendations and rulings in these disputes. As Members had acknowledged during previous DSB meetings, the 2006 Deficit Reduction Act did not permit the distribution of duties collected on goods entered after 
1 October 2007. Therefore, the United States di d 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, 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 merely repeat what it had said at the present meeting. 
2.9.  The DSB took note of the statements. WT/DSB/M/342 
 
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  3  CHINA – CERTAIN MEASURES AFFECTING ELECTRONIC PAYMENT SERVICES 
A.  Statement by the United States  
3.1.  The Chairman said that this item was on th e Agenda of the present meeting at the request of 
the United States. He then invited the representative of the United States to speak. 
3.2.  The representative of the United States said that his country continued to have serious 
concerns that China had not implemented the DSB's recommendations and rulings in this dispute. 
Following China's adoption of measures purportedly taken to implement the DSB's recommendations and rulings, foreign suppliers of electronic payment services still could not do 
business within China in China's local currency. In particular, China imposed a licensing 
requirement, but provided no criteria or procedures for foreign suppliers to be approved. The result of this was a ban on foreign EPS suppliers. China Union Pay – which was China's own domestic champion – remained the only EPS company that had ever been able to operate in 
China's domestic market. Yet the DSB's recommendations and rulings in this dispute stated that 
China had both market access and national treatment commitments concerning Mode 3 for electronic payment services.
5 At prior DSB meetings, China had taken the extraordinary position 
that these particular DSB findings were not relevant for it to comply with its WTO obligations. 
However, China had no basis for such assertions. China also stated at last month's DSB meeting that it was working on the necessary regulations that would allow for the licensing of foreign EPS 
suppliers. Unfortunately, the United States had no t seen any evidence that such regulations had 
been issued. The United States called upon China to  inform the DSB of the issuance of a regulation 
that would allow for the licensing of foreign EPS suppliers and again encouraged China to meet its obligations to implement the DSB's recommendations and rulings in this dispute. 
3.3.  The representative of China said that her country regretted that the United States had, once 
again, brought this matter before the DSB. At pr evious DSB meetings, China had explained that it 
had fully complied with the DSB's recommendations and rulings in this dispute. China had further 
explained that the actions being sought by the United States were beyond the scope of China's 
compliance obligations. Notwithstanding these prior explanations by China, the United States had continued to characterize the actions that it was requesting of China as actions that were 
necessary to comply with the DBS's recommendations and rulings. It was not China that was 
taking an extraordinary position, but the United States. Whatever the "ban" the United States was 
talking about was out of the scope of the DSB's recommendations and rulings. These demands were based on a clear misunderstanding of the disp ute settlement process. In this dispute, the US 
market access claims were based on a "monopoly"  theory that it was unable to prove other than 
with respect to a single measure concerning Hong Kong and Macao. As a result, China's compliance obligations with regard to market access were limited to rectifying the one aspect of 
this measure that the Panel had found to be inconsistent with China's obligations under 
Article XVI:2(a) of the GATT 1994. The limited scope of this compliance obligation was a consequence of how the United States chose to style its claims and its inability to prove the 
greater part of its case. Based on the Panel's finding concerning the classification of the services at 
issue, the United States appeared to be arguing that China's compliance obligation extended beyond the single measure that the Panel had found to be inconsistent with China's market access commitments. But the Panel's classification finding,  and its identification of corresponding market 
access commitments, was merely a precursor to its evaluation of whether the measures identified 
by the United States were inconsistent with China's obligations under Article XVI. These findings had not given rise to independent compliance obligations on China, as the United States appeared 
to suggest. In sum, China had taken all necessary actions and had brought the measures into full 
conformity with the DSB's recommendations and rulings. Regarding the regulation that the United States called upon China to inform the DSB, it was in discussion through bilateral channels 
and not subject to the surveillance of implementation. China hoped that the United States would 
consider the systemic implications and reconsider its position. 
3.4.  The representative of the United States said that, as it had stated before, the United States 
strongly disagreed with China's statement and its assertion that it was in full compliance. Further, 
China's statement that language in the report adopted by the DSB that "China has made a 
commitment on market access concerning Mode 3" and that "China has made a commitment on 
                                               
5 "China – Certain Measures Affecting Electronic Payment Services", WT/DS413/R (adopted on 
31 August 2012), paras. 7.575, 7.678. WT/DSB/M/342 
 
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  national treatment concerning Mode 3" were merely "precursors" and not really findings or 
recommendations and rulings was extremely troublin g. It would be a significant repudiation of 
China's obligations for China to disagree with these findings of the Panel adopted by the DSB that 
defined China's commitments and were the core of  the dispute. China knew, and all knew, that 
China had commitments here, and the United States  would encourage China to live up to them. 
3.5.  The representative of China said that the identification of the commitment was an issue. 
However, this did not mean whether or not there was compliance with that commitment. China 
urged the United States to re-examine the Pa nel Report in this dispute more carefully. 
3.6.  The Chairman said that there was obviously a disagreement on compliance or what the 
obligation was to be complied with. There was an avenue set out in the DSU provisions for such 
matters and he had also heard both sides consider that at least bilateral discussions might further elucidate the issues concerned. In August 2013, the two parties had signed a so-called sequencing 
agreement. The more formal avenues were obviousl y being kept in reserve by each side and the 
DSB witnessed the exchange of legal views at the present meeting.  
3.7.  The DSB took note of the statements. 
4  UNITED STATES – MEASURES AFFECTING THE CROSS-BORDER SUPPLY OF GAMBLING 
AND BETTING SERVICES  
A.  Statement by Antigua and Barbuda regarding the implementation of the 
recommendations and rulings adopted by the DSB 
4.1.  The Chairman said that this item was on th e Agenda of the present meeting at the request of 
Antigua and Barbuda. He further stated that it  was his understanding that, in the absence of 
Antigua and Barbuda at the present meeting, th e representative of Dominica would make a 
statement on behalf of Antigua and Barbuda. 
4.2.  The representative of Dominica, speaking on behalf of Antigua and Barbuda, read out the 
following statement: "We are today reading a st atement prepared by and on behalf of the 
delegation of Antigua and Barbuda, which has requested that this item be placed on the Agenda 
for today's meeting of the DSB. Antigua and Barbuda wishes to update the DSB on the status of its 
dispute with the United States over the cross- border supply of gambling and betting services. 
Having over a year ago gained authorization from the DSB to suspend concessions and certain 
other obligations to the United States pursuant to Article 22 of the DSU, Antigua and Barbuda has nonetheless gone to great efforts to encourage the United States to make a sincere effort towards an agreed settlement of the dispute . Unfortunately, this has not happened. Antigua and Barbuda 
wishes to make clear to its fellow Members that, as was explained in the delegation's last 
presentation to the DSB, the United States has not made any effort to settle this dispute . It has 
not offered financial compensation. It has not o ffered Antigua and Barbuda market access of any 
kind, this even despite a long-standing offer to allow the United States full access to the Antiguan 
regulatory scheme in practice and, in fact, another long-standing offer to have the Americans fully 
co-regulate a pared down industry with Antiguan authorities. It has not offered any concessions or 
changes in its trading relationship with Antigua and Barbuda that could even begin to compensate 
for the loss to the domestic remote gaming industry  – even if viewed from the flawed perspective 
of two of the panel members in the Article 22.6 arbitration some six or seven years ago . It 
declined a gracious offer by the prior Director-Gen eral of the WTO to sit down with both parties 
and see if fair ground could be reached through th e exercise of his good offices – an opportunity 
which Antigua and Barbuda eagerly sought and greatly laments was not availed of by the USTR . 
Late last year, an Antiguan delegation once again travelled to Washington DC  on the heels of a 
promise by the USTR that a real and substantial settlement proposal was going to be presented – 
only to be bitterly disappointed to discover that the 'settlement proposal' was nothing more than a 
quickly cobbled together list of US aid-type training opportunities, educational seminars and 
similar programmes  currently on offer to most countries across the globe on a voluntary and 
largely self-funded basis. Further, licenced Antigu an remote gaming operators remain the subjects 
of criminal prosecutions in the United States by virtue of the exact same statutes that ten years ago were ruled contrary to the obligations  of the United States under the GATS.  WT/DSB/M/342 
 
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  4.3.  Antigua and Barbuda would like to point out that in all other respects, the two countries 
enjoy a cooperative and close relationship. In part because of that fact, it is very difficult for the 
Government of Antigua and Barbuda to understand why the United States has chosen to use this 
poor and slight country as an example of how it can pick and choose what i nternational obligations 
it decides to abide by, and how. Perhaps it is because of how the office of the USTR is organized in 
the American Government that it can do things that in normal circumstances would seem well 
beyond the pale for other agencies of the United States Government . Whatever the reason, it is a 
perplexing and, sadly for the citizens of Antigu a and Barbuda, cruelly damaging position for the 
United States to take against a good and vulnerable neighbour. Once again, the Government of 
Antigua and Barbuda call for the United States to comply with its obligations under the GATS; to deal fairly and honestly with this delicate and honest land; and also to at the very least accord the Government of Antigua and Barbuda the respect to report to the DSU on the status of the 
American progress towards implementation on this matter monthly as it is lawfully required to do 
and stop pretending as if this dispute has been long solved and sorted. In the meantime, progress continues on the implementation of the suspensi on of concessions and other obligations that 
Antigua and Barbuda might have to the United States under the TRIPS Agreement . In a wise, 
creative and reasoned fashion, the Government is close to the completion of the remedies mechanism, and if the USTR continues to maintain the blank-faced posture in this case that it has 
so stoically maintained for over ten years now, the remedies will be pursued . Then, perhaps, the 
affected industries in the United States can convince the United States Government to do what so far Antigua and Barbuda have been unable to."  
4.4.  Subsequently, t he representative of Dominica, speaking on behalf of the OECS member 
States, requested that the statement made at the DSB meeting on 20 January 2013 on behalf of 
the OECS member states be referred to in the record of the present meeting.6 
4.5.  The representative of the Bolivarian Repub lic of Venezuela said that his country supported 
Antigua and Barbuda, a small country with serious concerns, as stated by Dominica speaking on 
behalf of Antiqua and Barbuda. Venezuela supported the statement that it was necessary to rectify the measures so as to bring an end to this situation that had gone on for ten years.   
4.6.  The representative of Brazil said that hi s country thanked Antigua and Barbuda for including 
this item on the DSB's Agenda and thanked Domi nica for reading the statement on behalf of 
Antiqua and Barbuda. As it had stated before, Brazil was of the view that the dispute settlement system had proved to be a useful tool for resolving trade disputes among Members through a rule-
based mechanism. However, the credibility and effectiveness of the system depended on the 
premise that the mechanism worked for the benefit of all Members, regardless of their size or level of development. Bearing that in mind, Brazil en couraged both parties to engage in effective 
negotiations with a view to reaching a mutually agreed solution to the long-standing "US-
Gambling" dispute, in line with the DSB's rulings.  
4.7.  The representative of Argentina said th at his country thanked Antigua and Barbuda for 
inscribing this item on the Agenda of the pres ent meeting and for keeping the DSB abreast of 
developments. Argentina, however, regretted that, once again, there had been no progress regarding this matter. Argentina expressed its renewed concern about the systemic implications of protracted failure to comply with the DSB's reco mmendations and rulings, in particular since the 
interests of a developing-country Member were affected. Argentina noted that Article 21.1 of the 
DSU stipulated that "prompt compliance with the recommendations or rulings of the DSB is essential in order to ensure effective resolution of disputes to the benefit of all Members". 
Argentina, therefore, urged the parties to this disp ute to redouble their efforts to reach a fair and 
equitable solution to this long-standing dispute. 
4.8.  The representative of Jamaica said that her country fully supported the statement made by 
Dominica, on behalf of Antigua and Barbuda, under this Agenda item. Jamaica had consistently 
called for a timely resolution of this matter with the full implementation of the DSB's ruling in favour of Antigua and Barbuda. Jamaica was particularly concerned about the protracted failure by the United States to comply with the DSB deci sion of 20 April 2005. The member States of the 
Caribbean Community had consistently expressed the region's profound disappointment at the 
failure to resolve this matter in line with the DSB's ruling. Failure to comply with the DSB's decisions undermined the integrity of the DSB and weakened the foundation on which the WTO 
                                               
6 Dominica's statement made at 20 January 2013 is contained in WT/DSB/M/328. WT/DSB/M/342 
 
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  rested. For all countries that relied on the rule-based multilateral trading system, in particular 
small vulnerable economies, it was important that the credibility of the dispute settlement 
mechanism be preserved and strengthened through faithful implementation of the decisions, and 
that it not be undermined by non-compliance. Jamaica urged the United States to take the steps necessary to honour its obligations set out in the Appellate Body's Report as contained in 
WT/DS285/AB/R in favour of Antigua and Barbuda. 
4.9.  The representative of Cuba said that her country, once again, noted that the United States 
was faced with another case of non-compliance with the DSB's recommendations and rulings. 
Cuba supported the statement made by Dominica  on behalf of Antigua and Barbuda. Cuba 
reiterated the need for the United States to addr ess its failure to comply in this dispute and to 
avoid these prolonged situations of non-compliance. As Cuba had previously stated, the US lack of 
compliance undermined the efficiency and credibilit y of the dispute settlement system. In Cuba's 
view, this was a violation of Antigua and Barbuda's rights and seriously affected its small economy. 
Cuba called on the United States to implement the DSB's decisions and its commitments under the GATS.  
4.10.  The representative of Chile said that her co untry, once again, wished to express its systemic 
concern about non-compliance with the DSB's decision in the dispute, which affected the interests 
of a developing-country Member. Chile hoped that the United States would take the necessary 
steps to comply with the DSB's recommendations and rulings. 
4.11.  The representative of Nicaragua said that his country supported the statement made by 
Dominica, on behalf of Antigua and Barbuda. Nica ragua urged the United States to comply with 
the DSB's decisions in this dispute, which affected the interests of Antigua and Barbuda, a small 
and vulnerable economy. 
4.12.  The representative of India said that hi s country thanked Antigua and Barbuda for placing 
this item on the DSB's Agenda. India found it unfortunate that this matter had not been resolved 
for so long. India fully sympathized with Antigua and Barbuda and was of the view that continued 
non-compliance was a serious matter with systemic implications for the WTO. India urged both parties to resolve the matter through negotiations at the earliest. 
4.13.  The representative of China said that her country thanked Antigua and Barbuda for 
inscribing this item on the DSB's Agenda. China understood the concerns of a small and vulnerable 
economy regarding the implementation of this long-standing DSB decision. China encouraged the parties in this dispute to engage in consultations on this matter so as to resolve the dispute as 
soon as possible. 
4.14.  The representative of the United States said that his country remained committed to 
constructive dialogue with Antigua to resolve this matter and had been open to meeting with 
Antigua on this matter at many different levels of the US Government. The US delegate said that 
some of the comments that it had heard at the present meeting that had implied that the United States was not working in good faith were inaccurate and very unfortunate. As a policy, the 
United States typically did not comment publicly on ongoing negotiations. But, it was important to 
note that contrary to statements it had heard at  the present meeting, at a meeting last fall in 
Washington, the United States had presented, in good faith, a range of items that could be part of a final settlement package. The United States continued to await Antigua's answer to the 
settlement package it had presented. But, in an y event, the United States remained ready to 
engage with Antigua on these issues. With respect to the suggestion that this matter be referred to mediation or good offices with the Director-General, the United States considered that a serious 
effort to re-engage in negotiations would be mo re productive than referring the matter to the 
Director-General. In relation to the statement on further DSB surveillance/status reports, the United States recalled that it had invoked the GATS Article XXI process to withdraw the gambling 
concession at issue in this dispute. In fact, the United States had reached agreement with all other 
Members to complete that process by offering substantial new services concessions. Only Antigua prevented completion of the WTO process. Thus, ag ain, it was inappropriate to suggest that the 
United States had not been trying to resolve this matter in good faith. The United States had been 
trying to work through the GATS Article XXI proc ess, and it had been trying to engage with 
Antigua. The United States thought that the GATS Article XXI process was the proper forum for further discussion of this matter, not the DSB. The United States would continue to engage in 
these efforts and hoped that Antigua and Barbuda would as well. WT/DSB/M/342 
 
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  4.15.  The representative of the Bolivarian Republic of Venezuela said that the DSB's 
recommendations could not be negotiated and had to be implemented. Antigua and Barbuda was a 
small country that did not have any representation in Geneva. He said that perhaps the Director-
General could provide his good offices to help to solve this dispute, and noted that the US compliance would benefit Antigua and Barbuda.  
4.16.  The representative of Trinidad and Tobago recalled that in 2013, when his country was the 
WTO coordinator for CARICOM, it had delivered a statement in the DSB meeting supporting 
Antigua and Barbuda, a CARICOM member. Bearing in mind the statements, which were contained 
in the DSB minutes, Trinidad and Tobago wished, once again, to make some brief remarks on this 
particular Agenda item. Trinidad and Tobago reca lled the decision of the Heads of Government of 
CARICOM in 2013 in Haiti in support of Antigua and Barbuda in its efforts to obtain compliance by the United States with respect to the DSB's ruling regarding the cross border provision of gambling 
and betting services. The countries of CARICOM,  like all other small developing states, had 
consistently worked within the context of international cooperation as engaged members of the international community to defend the imperative of full compliance with internationally accepted 
norms and rules. In that regard, Trinidad and Tobago firmly believed that all sovereign WTO 
Members would be regarded as equals and must be respected accordingly. Trinidad and Tobago urged the United States to seek to engage Antigua and Barbuda in urgent, meaningful and 
constructive negotiations in order to arrive at an amicable, equitable and mutually acceptable 
settlement to this long-standing dispute. Trinidad and Tobago looked forward to an amicable resolution of this matter in the near future. 
4.17.  The representative of the United States said that his country appreciated the comment from 
Trinidad and Tobago about negotiation. The United States remained of the view that a negotiated 
resolution was the best outcome and remained ready to try through negotiation to resolve this matter. 
4.18.  The DSB took note of the statements. 
5  UNITED STATES – MEASURES AFFECTING THE PRODUCTION AND SALE OF CLOVE 
CIGARETTES 
A.  Communication from the European Union (WT/DS406/15) 
5.1.  The Chairman said that this item was on th e Agenda of the present meeting at the request of 
the European Union. In connection with this Agenda item, he drew attention to the communication 
from the European Union contained in document WT/DS406/15, and invited the representative of 
the European Union to make a statement. 
5.2.  The representative of the European Union sa id that, at the DSB meeting on 22 January 2014, 
the EU had made a statement concerning the Arbitration proceedings in the "US - Clove cigarettes" 
dispute. As that meeting had included a discussion about matters to be included under "Other 
Business" and in order to afford any interested Member the opportunity to comment further, the 
EU had requested that this matter be placed on the Agenda of the present meeting. In doing so, 
the EU did not concede that making a unilateral statement on the matter under "Other Business" 
at the January 2014 DSB meeting consisted of a brea ch of the Rules of Procedure. The EU simply 
wished to encourage Members to engage on the ma tter. The EU had recalled its position stated in 
the DSB meeting of 22 January 2014 in a communication circulated prior to the present meeting in 
document WT/DS406/15. As the EU had noted previously, it seemed uncontested that there was 
disagreement between the United States and Indo nesia with respect to compliance in the "US - 
Clove Cigarettes" dispute. Such disagreement must be decided through recourse to Article 21.5 of 
the DSU, before recourse to arbitration subsequent to a request under Article 22.2 of the DSU 
could be entertained. That was the correct sequence, even if Indonesia strongly believed that the United States had failed to comply and even if that belief was reasonably held. However, Indonesia 
had proceeded to request the authorization of su spension of concessions without and instead of 
launching the compliance procedure as foreseen un der Article 21.5 of the DSU. That meant that, 
contrary to the procedures and respective roles foreseen in the DSU for compliance panels on the one side and arbitration panels on the other side, the arbitration panel established according to 
Article 22.6 DSU would necessarily have to decide on compliance first before proceeding to its 
proper role, the adjudication of the level of concessions to be suspended.  WT/DSB/M/342 
 
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  5.3.  Such a deviation from the rules and procedures foreseen for compliance proceedings under 
Article 21.5 of the DSU raised serious systemic concerns that should be of interest to all Members. 
These concerns were particularly significant if such a course of action changed the procedures 
applicable to a proper compliance proceeding, such as the right of third-party participation, and, even more worrisome, placed the compliance dete rmination outside the scrutiny of the Appellate 
Body. But that was exactly what seemed to be happening. Given its interest in the original 
proceedings as well as in the compliance proceedi ngs, the EU had filed an application with the 
compliance/arbitration panel, seeking to ensure that it would have an opportunity to exercise its 
third-party rights. Brazil and Mexico had made similar requests. After a lapse of months, the EU 
had received the Arbitrator's decision, which had been designated as confidential and thus could 
not be circulated. Suffice it to say that it appear ed to envisage that no other Member apart from 
the parties was to have a role in or information about these Compliance/Arbitration Panel 
proceedings. This was despite the fact that these proceedings would necessarily need to deal with 
the question of compliance in which the EU had a particular interest. The EU was of the firm view 
that this was not only a breach of its third-party rights, as provided for under Article 10 of the 
DSU, and the principle of due process. The EU was also of the view that making an Article 22.2 of 
the DSU request in such a situation while omitting to initiate and pursue compliance proceedings or to suspend the arbitration panel proceedings, was inconsistent with Articles 23.1 and 23.2(a) of 
the DSU. This was a matter of very serious conc ern and the EU considered that it necessitated 
further action on its part. The EU, therefore, appreciated the opportunity to discuss this matter 
and to hear the views of other Members at the present meeting. 
5.4.  The representative of Mexico said that his country welcomed the fact that this matter had 
been placed on the Agenda at the request of the European Union. In order to be brief, Mexico 
referred to its statement made at the DSB meeting held on 22 January 2014 with respect to this 
matter. It should be noted that the decisions of  Arbitrators in proceedings for the suspension 
of concessions acquired a systemic importance that went beyond the characteristics of a particular 
dispute, and this justified the involvement of Members as third parties in appropriate circumstances. Mexico believed that third parties could make valuable contributions to the 
information and arguments presented before the Arbitrators, thus making it easier for them to 
objectively assess the case they were called upon to resolve. As had been reported, Mexico, Brazil and the European Union's requests to participate as third parties had been rejected.  
5.5.  The representative of Canada said that his country thanked the EU for placing this item 
formally on the Agenda of the present meeting. Wh ile the nature of the intervention meant that it 
might have been addressed under "Other Business", it was probably wise to err on the side of caution and have it discussed as a regular item. On the substance of the matter, on which Canada 
had declined to comment at the January DSB meeting, as it had indicated on previous occasions 
and in other venues, Canada did not consider that  third parties should be granted the right to 
participate in proceedings to determine the level of nullification and impairment. On the other 
hand, Canada did consider that the right of third parties to participate in compliance proceedings 
was an important one, and this had been unambiguously reflected in the DSU provisions. Compliance proceedings often raised systemic issues that may affect the rights and obligations of non-disputing parties and as such these parties should be given the opportunity to be heard in any 
compliance proceedings. For these and many other reasons, Canada agreed with the EU that 
disagreements about the compliance of measures taken to comply should be dealt with in full proceedings initiated under Article 21.5 of the DSU. The problem of the so-called "sequencing" of 
proceedings had been identified early on, as was an ad hoc solution to correct it. The 
circumstances that appeared to have arisen in the "US - Clove Cigarettes" dispute reinforced the importance that disputing parties followed proven  practices that had emerged to address lacunae 
in the DSU. Canada, therefore, echoed the EU's call for Members to be mindful of the systemic 
implications of their actions and to cooperate to ensure the correct functioning of the system. As Canada and others had mentioned at the previous DSB meeting, this situation might also remind Members that ad hoc solutions to problems in the DSU were not always substitutes for permanent 
solutions. Therefore, Canada once again encourag ed delegations to engage fully in the discussions 
in the DSB Special Session to resolve, once and for all, these outstanding issues. 
5.6.  The representative of Japan said that his country thanked the EU for bringing this important 
issue to the present DSB meeting as one of the formal Agenda items. Japan wished to state, once 
again, that procedural fairness was important for all WTO Members. In its view, it may be a good opportunity for Members to look carefully, once ag ain, at the DSB's Rules of Procedure, to reflect 
past practices and to reconsider how and what issues should be placed under "Other Business". WT/DSB/M/342 
 
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  Since the EU had raised the issue of "sequencing", Japan wished to reiterate the importance of the 
issue. Japan would not repeat its position at the present meeting, but referred Members to the 
details of its statement made at the January 2014 DSB meeting.  
5.7.  The representative of Brazil said that his country thanked the EU for sharing its views on this 
important issue regarding the sequencing of Arti cles 21.5 and 22 of the DSU in the "US - Clove 
Cigarettes" dispute. Brazil also recognized the und erlying question in this debate, which concerned 
the interpretation on the existence and the scope of measures taken or not taken to comply with the DSB recommendations. Brazil would continue to reflect upon the possible implications of this 
unfolding process on the proper and fair functioning of the DSU. 
5.8.  The representative of Chinese Taipei said that her country thanked the EU for inscribing this 
item on the Agenda and for its statement made at the present meeting. As the EU had pointed 
out, the present situation gave rise to the sequ encing issue and the issue of third-party rights. 
Chinese Taipei observed that the sequencing issue appeared to generate divergent views in the 
past, for instance the Decision of the Arbitrators in the "EC - Bananas III" dispute (WT/DS27/ARB) and the Appellate Body Report in "US - Certain EC Products" case (WT/DS165/AB/R). Chinese 
Taipei had also observed that the issue of third-party rights alluded to by the EU was interrelated 
with the sequencing issue. The present situation also demonstrated that while certain questions in the DSU may find ad hoc solutions on a case-by-case basis, permanent solutions would be more 
desirable, in the interest of legal certainty and predictability. Chinese Taipei agreed with Canada 
that discussions should take place on these questi ons in an appropriate forum, perhaps with an 
added sense of urgency generated by the present si tuation. Chinese Taipei wished to express its 
strong interest and readiness to enga ge with Members in such discussions. 
5.9.  The representative of Norway said that hi s country thanked the EU for placing this item on 
the Agenda of the present meeting. Norway had had the time to consult with capital on this 
matter. In terms of substance, Norway wished to  be associated with the EU's position on the 
sequencing issue in this dispute. Norway was of  the view that Article 21.5 of the DSU was the 
proper procedure for settling compliance disputes. 
5.10.  The representative of India said that th is issue had been discussed under "Other Business" 
at the January DSB meeting but considering the limitations on a discussion held under "Other 
Business", substantive discussion on this important issue could only take place under a regular Agenda item. India, therefore, thanked the EU for inscribing this issue on the Agenda of the 
present meeting. India was a proponent and suppor ter of sequencing. India believed that this 
issue had come into focus because of the difference in interpretation of the provisions of 
Articles 21 and 22 of the DSU, and this issue had been under discussion in the DSB Special 
Session for many years. Though the issue received a lot of support, no final agreement had yet 
been reached. Similarly, the issue of third-party rights had also been under discussion in the DSB 
Special Session. Article 10 of the DSU was about third parties. This Article stated that the interests of the parties to a dispute and those of other Members under covered agreements at issue in the 
dispute shall be taken into account during the panel process. Thus, from the plain reading of the 
text of Article 10 of the DSU, it appeared that this  Article was limited to the rights of third parties 
in the panel process only. The DSU was silent on the issue of third parties at the arbitration stage. India agreed that there could be occasions when the arbitration proceedings could involve issues of 
legal interpretation and, therefore, the issue of participation of third parties in arbitration 
proceedings required careful and detailed discu ssion amongst the Membership. Considering that 
there were differences in opinion on this issue and that the DSB took decisions by consensus, it 
was most unlikely that the DSB would be in a position to resolve this issue. In India's view, the 
DSB Special Session was the better forum for discussion on these two and other issues. India agreed that ad hoc solutions may not serve in all situations and there was a need to resolve these 
issues on a permanent basis at the earliest. 
5.11.  The representative of Australia said that, while Indonesia's approach in this dispute was not 
in keeping with the pattern that had develope d in the WTO around agreements to sequence 
compliance and arbitration panels, it was not, in Australia's view, inconsistent with the rules in the 
DSU itself. That the time-frames in Articles 22. 2, 22.6 and 21.5 of the DSU around arbitration 
requests, retaliation and compliance panels permitted retaliation prior to the determination of compliance was a well-known gap in the rules that had led to the development of sequencing 
agreements and to reform proposals on sequenci ng in the DSU review negotiations. Australia, 
therefore, did not share the view that Indonesia' s arbitration request might be inconsistent with WT/DSB/M/342 
 
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  the DSU provisions. Australia urged Members to be mindful of the adopted practice on sequencing 
as the most appropriate way forward in such situat ions, to avoid these types of problems arising in 
the future. As others had said, it also emphasized and showed again the importance of working to 
try and finalize the DSU negotiations as soon as possible so that issues such as this could be resolved. 
5.12.  The representative of China said that, with out prejudice to China's position on third-party 
rights in the arbitration proceedings under Article 22.6 of the DSU, China shared the EU's concerns 
over the sequencing issue in general. Sequencing was a long-standing issue recognized by 
Members and had been fully discussed in the contex t of the DSU negotiations. China believed that 
a multilateral clarification and improvement on this matter was the best means to resolve this issue. This dispute provided impetus for Members to advance the work in the DSU negotiations more urgently with a view to producing outcomes on this matter in the near future.  China hoped 
that Members could follow the sequencing agreement practice in order to provide security and 
predictability to the system. All Members acknowledged that certainty, predictability and security were of great value to the dispute settlement system. 
5.13.  The representative of Argentina said that his country had views regarding sequencing and 
the participation of third parties in arbitrations under Article 22.6 of the DSU. Argentina had 
expressed its views on this matter in the DSB Special Session. These views were similar to those 
expressed by Canada. Argentina also considered the DSB was not the right forum to address 
issues discussed under a specific mechanism created for that purpose. Argentina did not think that the DSB should discuss the same matters like th e DSB Special Session. Argentina, therefore, 
joined other delegations who had stated that Members actively participate in the DSB Special 
Session to address these matters.   
5.14.  The representative of Ecuador said that his country wished to point out two facts in relation 
to the sequencing of compliance and arbitration pa nel proceedings. First, a similar issue had arisen 
approximately 15 years ago. Second, it had occurred during a dispute that lasted about 14 years. 
In that dispute, two requests were submitted four days apart in January 1999. The first was a request for authorization to suspend concessions and the second was a request to establish 
a compliance panel with a view to determining whether the responding party had actually met its 
obligations within a reasonable period of time (WT/DS27/43 and WT/DS27/44). As a result, two sets of proceedings had been established at the same time. The responding party had requested that the Article 22.6 proceedings be suspended unt il the compliance panel had made a ruling, but 
this request had been refused by the Arbitrators. The Arbitrators' report determining the level of 
concessions to be suspended had been circulated on 9 April 1999 and the compliance panel's report was circulated three days later. As Ecuador understood, following this and another case in 
which a different approach had been used, this type of matter had been dealt with through ad hoc 
arrangements between the parties to the disputes concerned. However, Ecuador reiterated that a similar matter had arisen at least 15 years ago. Since then, several proposals had been submitted 
at the DSB Special Session. This matter and other issues that went well beyond procedural 
concerns were still being discussed in that fram ework, with various proposals regarding "prompt 
compliance" with the DSB's recommendations and rulings still on the table. Ecuador believed that these were essential for the smooth functioning an d credibility of the dispute settlement system. 
The process to "clarify" and "improve" the DSU should eventually produce a concrete outcome, 
so that substantive issues, especially those primarily affecting the interests of developing countries, would be dealt with effectively. 
5.15.  The representative of Indonesia said that her country appreciated the concerns raised by 
the EU and other Members regarding this dispute. Indonesia wished to refer to its statement made 
at the DSB meeting on 22 January 2014. Indonesia, once again, regretted that the ongoing 
dispute was being discussed in the DSB. In this dispute, Indonesia believed that it had acted within 
its rights and obligations as a WTO Member. Furthermore, Indonesia believed that nothing in the DSU precluded a complainant from having direct recourse to Article 22.2 of the DSU. This was especially true in this case where a respondent, the United States, readily conceded that it had 
taken no step to implement one or more of the DSB's rulings and recommendations. Article 21.5 of 
the DSU applied only to circumstances where th ere was a disagreement as to the existence or 
consistency of a covered agreement of measures taken to comply with the DSB's 
recommendations and rulings. In Indonesia's view, such a situation did not exist with respect to 
this dispute. Indonesia recalled Canada's statement made at the January 2014 DSB meeting when this issue had first been raised. Indonesia agreed with Canada that there were systemic issues WT/DSB/M/342 
 
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  relating to sequencing in the DSU. Indonesia also agreed that ad hoc solutions regarding 
sequencing agreements were no substitute for negotiations to clarify the DSU procedures. 
Indonesia also believed that the existing ad hoc solution did not fully take into account every 
circumstance that may arise in the conduct of di spute settlement proceedings including those that 
existed in this dispute. Indonesia also appreciated Members' concern about their third-party rights 
and their systemic interest in the WTO disputes. Indonesia fully supported further discussion in the 
DSB Special Session to resolve the ambiguity in the DSU provisions and to consider opening more opportunities for third party participation. But in the meantime, Indonesia must continue to defend 
its interests in accordance with the DSU provisions as they currently exist. 
5.16.  The representative of Honduras said that his country supported the statements made by 
other delegations and, like other delegations, considered that the DSB was not the right forum to 
discuss the sequencing issue. 
5.17.  The representative of the United States said that his country appreciated that the European 
Union had chosen to place this item on the proposed Agenda for the present meeting, in 
accordance with the 10-day rule set out in Rule s 2, 3, and 4 of the DSB's Rules of Procedure.7 As 
the United States had noted at the January 2014 DS B meeting, placing this item on the proposed 
Agenda gave all Members advance notice of items to be raised at the DSB meeting and provided 
delegations with an opportunity to confer with capital, receive instructions, and to engage in the 
discussion, as they considered appropriate. The United States was glad to hear that numerous 
other Members echoed this point at the present meeting. This was the appropriate way to proceed under the DSB's Rules of Procedure. On the other hand, raising an item under "Other Business", as had occurred in January, denied Members advance notice and equal notice of the matter to be 
raised, and therefore disadvantaged any Member that the delegation making the statement had 
not specifically selected to receive a "heads-up" . Placing the item on the Agenda of the present 
meeting as a regular item also helped avoid engaging in a discussion on substantive issues under 
"Other Business". Such a discussion, as occurred at the January DSB meeting, was contrary to 
Rule 25 of the DSB’s Rules of Procedure. Therefore,  the United States did appreciate the EU's more 
transparent and more inclusive approach consiste nt with the DSB's Rules of Procedure. With 
respect to the EU's written communication, the United States considered that this was a 
transparent means of informing Members of issues of  interest to the EU in advance of the present 
meeting. In that regard, the United States welcomed the EU's recognition that communications circulated in a DS document series could be a valuable means for a Member to share its views with 
all WTO Members, and the evolution in the EU's thinking since previously expressing a view to the 
DSB.
8 
5.18.  Turning to the substantive issues, the Un ited States observed that these were not new 
issues, but were issues that had been addressed by arbitrators in past proceedings, including in 
arbitration proceedings to which the EU had been a party, and which Ecuador had referenced in its statement. As a result, the United States did not understand the basis for the EU's concerns, nor 
the "urgency" necessitating the statement at the January 2014 DSB meeting. The first issue raised 
involved initiating compliance proceedings under Article 21.5 of the DSU rather than requesting authorization under Article 22.2 of the DSU. As the United States had noted, it would have 
preferred to have concluded such a so-called "sequencing" agreement with Indonesia as it initially 
had proposed. However, Indonesia had changed course and instead had decided to act on its view 
that sequencing was not required under the DSU and that issues of compliance may be resolved as part of the Article 22 arbitration. The United Stat es heard Indonesia repeat that view again at the 
present meeting.  
5.19.  On the one hand, the United States strongly disagreed with Indonesia's statement that the 
United States had taken no steps to come into compliance in this matter. That was absolutely not 
the case and was a subject in the ongoing proceedings. Nonetheless, while the United States may 
disagree with Indonesia on that issue, it did not disagree with Indonesia's reading of the DSU. This 
was a reading that had been confirmed by the arbitr ator in the "EC - Bananas III" dispute. In that 
dispute, the EU had made a claim of compliance, and the compliance issue was resolved in the 
course of the Article 22.6 arbitration, without re course to 21.5 of the DSU. The United States 
disagreed with the contrary notion expressed by some at the present meeting that Members were 
                                               
7 Rules of Procedure for Meetings of the General Council, WT/L/161 (applicable to meetings of the DSB, 
WT/DSB/9). 
8 See WT/DSB/M/254, paras. 74, 86 (22 October 2008). WT/DSB/M/342 
 
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  instead required to seek recourse to Article 21.5 of the DSU if the parties to the dispute disagreed 
on compliance. For these reasons, the United States did not see this as an open issue nor did it 
see the point in seeking to re-visit this issue at the DSB. Similarly, with respect to the issue of 
what the EU characterized as third-party "rights", the DSU was clear in not providing for third party participation in such proceedings. The United States appreciated that India had also pointed 
to this lack of any textual basis at the present meeting. While the EU characterized its request as 
one conferring "rights", it was important to note that its request would in fact impose additional "obligations" on the parties. The DSU was explicit that the dispute settlement system "serves to 
preserve the rights and obligations of Members under the covered agreements" and not to add to 
those obligations.
9 The United States, therefore, did not see how an arbitrator or adjudicator could 
grant a request to impose additional obligations on  a Member not agreed to in the DSU. Finally, 
the United States noted that the EU appeared to now want to refer to arbitrators by a new name – 
as a "compliance/arbitrator panel". But, using different terminology could not amend the DSU or 
transform the legal nature of the Article 22.6 arbitration. 
5.20.  The representative of the European Union sa id that the EU did not believe, as suggested by 
some delegations, that the DSB would not be th e appropriate forum for discussing this issue. 
There seemed to be a disagreement on the right fo rum. The EU had also just heard that Indonesia 
was of the view that an Article 21.5 compliance procedure was the correct way forward in the 
event of a disagreement on compliance. The United States had just confirmed again that there was 
clearly a disagreement on compliance. The EU, ther efore, hoped and urged Indonesia to draw the 
right conclusions to commence a compliance procedure, failing which the EU would have to consider other options on this matter.  
5.21.  The Chairman noted that a couple of central issues had been highlighted at the present 
meeting. They were not new issues as some had observed. The first issue was about finding the 
intent of the DSU drafters. It was about how one would fill the lacunae that they had left in terms 
of reconciling sequencing on the one hand, which was between the parties and, on the other hand, 
the inherent right of third parties to have a systemic interest in the proceedings. The second issue, as implied by India, was that what constituted a panel proceeding was amenable to different 
interpretations since reference was also made to compliance panels. The third issue was the role of 
the DSB Special Session on the DSU negotiations and whether Members were obliged to always have packages of "an all or nothing" approach or whether the DSB Special Session might consider particular issues, in a discrete manner, in order to address practical problems.  
5.22.  The DSB took note of the statements. 
6  EUROPEAN UNION – MEASURES ON ATLANTO-SCANDIAN HERRING 
A.  Request for the establishment of a panel by Denmark in respect of the Faroe Islands 
(WT/DS469/2) 
6.1.  The Chairman recalled that the DSB had considered this matter at its meeting on 
22 January 2014 and had agreed to revert to it. He drew attention to the communication from 
Denmark in respect of the Faroe Islands contai ned in document WT/DS469/2, and invited the 
representative of Denmark in respect of the Faroe Islands to make a statement. 
6.2.  The representative of Denmark in respect of the Faroe Islands said that, as set forth in 
document WT/DS469/2, the Kingdom of Denmark in respect of the Faroe Islands requested the 
DSB to establish a panel pursuant to Article 6 of the DSU, with standard terms of reference. The 
Kingdom of Denmark in respect of the Faroe Islands had made its first panel request at the DSB meeting held on 22 January 2014, where its request was blocked by the European Union. As this 
was the second request for the establishment of a panel made by a complaining party, in 
accordance with Article 6.1 of the DSU, a panel should be established unless the DSB decided by consensus not to do so.  
6.3.  The representative of the European Union said that the EU regretted this panel request. In 
light of the ongoing negotiations of the coastal States on herring and mackerel, the EU believed 
that there was still room to find an amicable solution. The EU was convinced that its measures 
                                               
9 Article 3.2 of the DSU. WT/DSB/M/342 
 
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  were in conformity with the WTO Agreements, notably the GATT, and would defend them 
vigorously. 
6.4.  The DSB took note of the statements and agreed to establish a panel in accordance with the 
provisions of Article 6 of the DSU with standard terms of reference. 
6.5.  The representatives of Australia, China,  Guatemala, Honduras, Iceland, India, Japan, 
New Zealand, Panama, the Russian Federation, Ch inese Taipei, Turkey and the United States 
reserved their third-party rights to participate in the Panel's proceedings. 
7  UKRAINE – DEFINITIVE SAFEGUARD MEASURES ON CERTAIN PASSENGER CARS 
A.  Request for the establishment of a panel by Japan (WT/DS468/5) 
7.1.  The Chairman drew attention to the communication from Japan contained in document 
WT/DS468/5, and invited the representative of Japan to speak. 7.2.  The representative of Japan said that his country had made this request for the 
establishment of a panel on 13 February 2014. This dispute concerned: (i) the illegitimate 
imposition of definitive safeguard measures by Uk raine on imports of certain passenger cars; (ii) 
the deficient investigation that had led to the imposition of those measures, and (iii) the 
inconsistency of these measures with several provisions of the GATT 1994 and the Agreement on 
Safeguards in particular. The claims had been explained in detail in the panel request and Japan would not repeat them at the present meeting. Instead, Japan wished to highlight certain 
conspicuous features of Ukraine's safeguard measures. First, in this case, the total number of the 
motor cars imported to Ukraine had actually decrea sed significantly during the investigation period 
between 2008 and 2010. This fact called into qu estion whether the safeguard measures fulfilled 
the requirements under the Agreement on Safeguards and the GATT 1994. Although Ukraine 
appeared to assert that the share of imports of the products relative to domestic production had 
increased, Ukraine had failed to make any reasoned and adequate findings at determination to justify the assertion. Second, Ukraine had applied the safeguard measures more than two years 
after the end of the investigation period and th e data on which the safeguard measures were 
grounded was utterly obsolete. Japan recalled that the Appellate Body had explained that increase of imports which would constitute the very basis of  the imposition of the safeguard measures must 
be "recent enough, sharp enough and significant enough". Ukrain e's flagrant disregard of the 
notification and consultation requirements was untenable, because such deliberate action would seriously undermine the operation of Article 12 of the Agreement on Safeguards. Specifically, Ukraine had failed to make a notification to the WTO providing all pertinent information including, 
but not limited to, evidence of serious injury or threat thereof caused by increased imports and a 
time-table for progressive liberalization. To da te, Japan had not received any time-table for 
progressive liberalization. Ukraine had also failed  to provide an adequate opportunity for prior 
consultations. Japan had requested consulta tions on 30 October 2013 and had engaged in 
consultations in good faith with Ukraine on 28 November 2013 as well as 21 January 2014 with a view to reaching a mutually satisfactory solution. While the consultations had been conducted 
under a cooperative atmosphere and had provided useful opportunities for the parties to better 
understand their respective positions on this matter, the parties were unable to resolve the problems. Japan, therefore, requested, pursuant  to Article 6 of the DSU, Article XXIII of the 
GATT 1994 and Article 14 of the Agreement on Safegu ards, 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. Finally, Japan wished to express its condolences to the people in Ukraine that had suffered from the recent political conflicts. Japan hoped that the political situation would 
be stabilized as soon as possible. 
7.3.  The representative of Ukraine said that his country regretted that Japan had considered it 
necessary to request the establishment of a panel in respect of Ukraine's safeguard measure on 
passenger cars. Ukraine recalled that, on 14 March 2013, it had published the Notice of the 
Decision to impose safeguard measures on imports of certain motor cars in the Official Gazette. On 21 March 2013, the Decision was notified to the WTO, in accordance with Ukraine's obligations under the WTO Agreement on Safeguards. This Decision was the result of a thorough and 
objective investigation by the relevant authorities in Ukraine, which had concluded that the 
domestic car industry in Ukraine was under threat of suffering serious injury as a result of the significant increase in the imports of cars. When confronted with that threat, and following an WT/DSB/M/342 
 
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  investigation, the rules of the WTO Agreement on Safeguards expressly allowed Members to 
impose temporary safeguard measures as Ukraine had done. Ukraine had engaged in constructive 
and meaningful consultations with Japan in an effort to find an amicable solution that was 
respectful of Ukraine's rights under the relevant WTO Agreements. Ukrainian experts had provided answers to numerous questions from Japan. Ukra ine believed that it had provided all the 
necessary information and clarification explaining its position. Ukraine remained open to continue 
these discussions in order to achieve a mutually acceptable solution. Ukraine was, therefore, not in a position, at the present meeting, to accept this  first request for the establishment of a panel by 
Japan. 
7.4.  The Chairman said that both countries had brought the constructive attitude to the 
consultations. He noted that a first panel request did not preclude continuing efforts to find a 
mutually acceptable solution. Since there was no agreement and this being a first request for a 
panel, the DSB was obliged to simply take note of the statements.  
7.5.  The DSB took note of the statements and agreed to revert to this matter. 
8  UNITED STATES – CERTAIN METHODOLOGIES AND THEIR APPLICATION TO ANTI-
DUMPING PROCEEDINGS INVOLVING CHINA 
A.  Request for the establishment of a panel by China (WT/DS471/5) 8.1.  The Chairman drew attention to the communication from China contained in document 
WT/DS471/5, and invited the representative of China to speak. 8.2.  The representative of China said that, on 3 December 2013, her country had requested 
consultations with the United States with regard to certain methodologies used in US anti-dumping 
proceedings. Consultations had been held on 23 January 2014. While these consultations had 
assisted in clarifying some of the issues before th e parties, they had failed to resolve the dispute. 
Therefore, China had requested, in document WT/DS471/5, that the DSB establish a panel to examine this matter, with standard terms of re ference. In the panel request, China had made 
claims regarding a number of measures. These measures reflected acts or omissions of the 
United States that, in China's view, failed to comply with provisions of the GATT 1994 and the 
Anti-Dumping Agreement. The US measures at issue may be placed into two broad groups. The 
first group encompassed the determinations in three original investigations and one administrative 
review. In these determinations, the United States Department of Commerce (USDOC) deviated from its normal practice, purportedly in order to  address dumping that had been "targeted" to 
particular customers, regions or time periods. In these determinations, the USDOC had used a 
"W-to-T" comparison methodology, in which a we ighted-average normal value was compared with 
transaction-specific export prices. It had used zeroing when aggregating the intermediate comparison results to determine the dumping margin, and had applied the methodology to all US 
sales by the exporter in question, even though the "targeting" had been found only in relation to a 
sub-set of sales. The second group of measures  covered by the panel request involved a number 
of measures falling within 13 different US anti -dumping proceedings, as well as two norms of 
general and prospective application, which China challenged "as such". China's claims in relation to 
these measures related, in significant part, to US practices relating to what the United States considered to be "Non-Market Economies". China' s claims, however, were of broader relevance. 
This was because, inter alia , they pertained to the failure by the USDOC to comply with basic 
procedural protections for interested parties required under the Anti-Dumping Agreement. China, 
therefore, requested the DSB to establish a pane l to examine the matter described in the panel 
request.  
8.3.  The representative of the United States said that his country had consulted with China with 
regard to the matters raised in China's request for consultations. The United States had explained 
to China that the measures in its request – to the extent that they had been properly identified – 
were fully consistent with US obligations under the WTO Agreement. Accordingly, the 
United States was not in a position to agree to the establishment of a panel at the present meeting. WT/DSB/M/342 
 
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  8.4.  The Chairman said that this was the first request for a panel and since it was hoped that the 
parties would continue to consult regardless, the DSB was not in a position to act on this request. 
The DSB would take note of the statements made and would, depending on developments, revert 
to this matter at its next regularly scheduled meeting. 
8.5.  The DSB took note of the statements and agreed to revert to this matter. 
9  CHINA – COUNTERVAILING AND ANTI-DUMPING DUTIES ON GRAIN ORIENTED FLAT-
ROLLED ELECTRICAL STEEL FROM THE UNITED STATES 
A.  Recourse to Article 21.5 of the DS U by the United States: request for the 
establishment of a panel (WT/DS414/16) 
9.1.  The Chairman drew attention to the comm unication from the United States contained in 
document WT/DS414/16 and invited the representative of the United States to speak. 
9.2.  The representative of the United States said that, on 16 November 2012, the DSB had 
adopted its recommendations and rulings in the dispute: China – Countervailing and Anti-Dumping 
Duties on Grain Oriented Flat-rolled Electrical Steel from the United States ("China – GOES"). Members would recall the DSB findings that China had imposed anti-dumping and countervailing 
duties on US exports of GOES in a manner that breached China's obligations under the Anti-
Dumping and SCM Agreements. The DSB had recommended that China bring its measures into conformity with these agreements. The Arbitrator  appointed under Article 21.3(c) of the DSU to 
determine China's reasonable period of time provided China until 31 July 2013 to implement the 
DSB's recommendations and rulings. On that date, China had issued a re-determination related to the duties at issue in this dispute. The redete rmination had continued the imposition of anti-
dumping and countervailing duties on imports of GOES from the United States. The United States 
considered that China had failed to bring its measures into conformity with the covered 
agreements, and the United States was seeking reco urse to Article 21.5 of the DSU. The apparent 
inconsistencies between China's re-determination and its obligations under the Anti-Dumping and 
SCM Agreements were set out in the US request fo r the establishment of a panel. They included 
the following briefly: (i) China had failed to support its price effects findings with positive evidence and to objectively examine the related evidence; (ii) China had failed to support its findings that 
GOES from the United States negatively impacted the domestic industry with positive evidence 
and to objectively examine the related evidence;(iii) China had failed to base its analysis of the alleged causal relationship between GOES from the United States and injury to the domestic industry on positive evidence, and had failed  to objectively examine the related evidence; 
(iv) China had attributed injuries caused by other factors to the dumped and subsidized imports; 
(v) China had failed to disclose essential facts underlying its conclusions; and (vi) China had failed to provide an adequate explanation of its calculations and legal conclusions. 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. 
9.3.  The representative of China said that her country was disappointed that the United States 
had requested a panel to be established under Article 21.5 of the DSU with regard to this dispute. 
On 24 January 2014, China had held consultations wi th the United States in good faith, and had 
introduced the relevant facts, had provided explanations to the United States and had answered its questions. China had always respected the DSB' s recommendations and rulings, and implemented 
them with good faith. For this particular dispute, in order to implement the DSB's 
recommendations and rulings, China had carried out a reinvestigation, had issued a determination before the expiration of the reasonable period of time and had greatly reduced the anti-dumping 
as well as the countervailing duty rates. Chin a had also enacted Preliminary Rules Regarding 
Implementation of WTO Determination of Trade Remedy Disputes, which had authorized the investigation authorities to reinvestigate and amend or repeal the disputed measure in order to 
implement the DSB's recommendations and rulings.  Those rules would apply to all future WTO 
trade remedy cases to which China was the responding Member. China believed its determination of the reinvestigation was in full compliance with the covered agreements. 
9.4.  The Chairman said that, as he understood and consistent with the sequencing agreement 
agreed by the parties to the dispute, China was not objecting to the establishment of a panel at 
the present meeting.  WT/DSB/M/342 
 
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  9.5.  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 document 
WT/DS414/16. The Panel would have standard terms of reference. 
9.6.  The representative of the European Union, India, Japan and the Russian Federation reserved 
their third-party right to participate in the Panel's proceedings. 
10  AB SELECTION PROCESS UPDATE 
10.1.  The Chairman said that this item had become a regular feature in the DSB's regular 
meetings. The update, in effect, was the communi cation from the Selection Committee which all 
Members had received by fax, addressed to Heads of Delegation, dated 24 February 2014. It was 
self-explanatory and it was up to the DSB to receive and to note. He invited delegations who so wished to provide comments regarding the communication. 
10.2.  The representative of Kenya said that his country appreciated 
the efforts made by the 
Selection Committee in line with its mandate. Kenya, however, regretted that a fter a ten-
month long selection proce ss, the Committee was unabl e to recommend a candidate for the 
vacant position in the Appellate Body. Kenya took this opportuni ty to mak e three brief poin ts. 
First, in order to break the impasse in the appointment process, voting was required. S econd, the 
geographical representation in the Appellate Body ou ght to guide the appointment in this 
case. Third , only the nom inating WTO Members may withdraw their nominees and no new 
nominees ought to be accepted . On the first po int, why was voting necessary to break the 
impasse? To break the impasse, and to restore confidence in the appointment process of the 
Appellate Body, Kenya recommended that th e DSB should vote to appoint one of the four 
nominees. The legal justificati on for a vote was that, g iven that the Rules of Procedure of the 
General Council applied to the DSB meetings, Kenya was of the view that Article IX:1 of the WTO 
Agreement, second sentence, which allowed to vote upon failure of cons ensus should apply to the 
decision on the appointment of Appellate Body members. Further, Artic le 17.2 of the DSU which 
provided for the DSB to make appointments to th e Appellate Body, did not use the word "decision"  
and so the con sensus rule in Article 2.4 of the DSU did not appl y to it. The c onsensus rule in 
Article 2.4 of the DSU was not directed at administrative issues such as the appointment of 
Appellate Body members particularly wher e there had been a failure of consensus . In addition, 
there was no inherent conflict betwee n Article IX:1, second sentence of the WTO Agre ement 
(which provided that wher e decision-making by consensus had failed, voting shall be conduc ted), 
and A rticle 2.4 of the DS U which prov ided that DSB decisions shall be taken by consensus. There 
was no language in the DSU to indicate an intent that A rticle IX:1 of the WTO Agreement did not 
apply to the DSB.10 In any case, even if there was a conflict , by virtue of Article  XVI:3 of the WTO 
Agreement , the recourse to majority vot ing in Article IX:1 of the WTO Agreement would trump any 
contradictory language in the DS U. In essence, Article IX:1 of the WTO Agreement, insofar as it 
provided decision-making by voting, applied to both the DSB and the General Council.  
10.3.  The second point concerned the criteria to be made in making this particular Appellate Body 
appointment. In making an appointment, Members ought to bear in mind Article 17.3 of the DSU. 
It provided that Appellate B ody "membership shall be broadly representative of Membership in the 
WTO". As such, factors such as different geographical areas , levels of development and legal 
systems were to be taken into account. This reference to different geograp hical areas and levels of 
development being taken into account was one of the Recommendations of the Preparatory 
Committe e for the WTO approved by the DSB on 10 February 1995 (establishment of the Appellate 
Body, 10 February 1995, WT/DSB/1, dated 19 June 1995, para. 5). Th e third po int was that 
nomina tions made by WTO Members could only be withdrawn by those Members and no new 
nominees ought to be accepted. Should Members decide not to take a vote before the current Selection Committee's term were to end, and before the Committee were to make a 
recommendation on an appointment , Kenya wanted the Membership to note that the current 
nominees did not have to be re-nominated. The ir nominations were still valid . The end of the one-
year tenure of Council Chairs did not term inate these nominations . This was because these 
candidates had validly been nominated by the exercise of the right each Member had. As such, the 
nominations did not exp ire until the selection process was over. Kenya recalled the circumstances 
                                               
10 Article XVI:3 of the WTO Agreement provides that: "In the event of a conflict between a provision of 
this Agreement and a provision of any of the Multilateral Trade Agreements, the provision of this Agreement shall prevail to the extent of the conflict". WT/DSB/M/342 
 
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  concern ing the reappointment process of Appellate Body member Mr. Ricardo Ramírez, whereby 
the process had been initiated by Mr . Shahid Bash ir, the then Chair of the Selection Committee 
and was concluded by his successor, Mr. Jonathan Fried, the current Chair. The process had 
proce eded expediently. It had been carried over from  one Chair to another without termination or 
starting a new selection process. Further, Kenya would not endors e the addition of other nominees 
to the curr ent four. The S election Committee had not found a ny of them u nqualified for the 
appointment t o the Appellate Body under Article 17 .3 of the DSU. The Artic le provided that the 
person must be of "recognized authority, with demonstrated expertise in law, international trade 
and the subject-matter of covered agreements generally". In conclusion, Kenya supported the 
views expressed by the United States in November 2007 on the occasion of the last deadlock of 
an Appellate Body selection process when the Un ited States had noted that the Appellate Body 
"must not be politicized in any way". Kenya requested that its statement be reflected in the 
minutes of the present meeting.  
10.4.  The representative of the European Union said that the EU confirmed its full engagement in 
the process of finding the best possible replacement for Mr. David Unterhalter. What was 
important was the appointment of the most qualified candidates to the Appellate Body. This was 
fundamental for the survival of the whole syst em. The EU was not convinced that the current 
situation was due to the lacking qualities of the candidates. However, the EU recognized that, at 
this point in time, it seemed impossible to find  a candidate that had the support of the whole 
Membership, which was also fundamental for th e credibility of the Appellate Body. Members 
needed to resolve the current impasse as soon as  possible. Members had, thus far, established a 
tradition in relation to the selection procedures that had served the Membership well and had 
resulted in the appointment of outstanding Appe llate Body members who had enjoyed the support 
of the whole Membership. The EU, therefore, co nfirmed its full engagement in the process of 
finding the best possible replacement for Mr. Unterhalter as a matter of urgency and would, 
therefore, support a decision to re-open the procedure. 
10.5.  The representative of Australia said that his country was disappointed that the Selection 
Committee had found itself in a position of being unable to recommend one of the candidates for 
appointment to the Appellate Body, in particular as Australia considered that a number of 
candidates from the existing pool of nominees could have made significant contributions to the work of the Appellate Body. Australia had put forward a candidate, in good faith, with 30 years of trade law experience, including on highly complex subject areas that comprised a majority of the 
Appellate Body's workload. As it had previously noted, Australia's view was that the overarching 
aim of the selection process must be to provide highly-qualified members for appointment to the Appellate Body. To do otherwise would risk the er osion over time of the high standards Members 
expected of the Appellate Body and, by implication, of the WTO's crown jewel, the dispute 
settlement system. In that context, the requirem ent in Article 17.3 of the DSU for the Appellate 
Body to be "broadly representative of Member ship in the WTO" could canvas many types of 
representation, including geographical spread, various legal systems (whether civil or common 
law), and different economies and levels of develo pment, as set out in paragraph 5 of WT/DSB/1. 
Certainly, that phrase in Article 17.3 did not mean that retiring Appellate Body members must, as a matter of course, be replaced by new members from the same geographical region or country. 
Australia would be very concerned if that were to become the case in the future. It was worth 
recalling that Australia's former Appellate Body member, John Lockhart, was, when he had unfortunately passed away early in his second term, replaced by South Africa's David Unterhalter. 
At that time, Mr. Unterhalter had been recommended for appointment ahead of a well-qualified 
Australian candidate. Australia, however, had no hesitation in accepting the recommendation to appoint Mr. Unterhalter, because it had clearly been based on merit and a proper interpretation of 
the guidance in WT/DSB/1. 
10.6.  Australia shared Kenya's disappointment with the state of play in this process. However, 
Australia did not agree with its proposal regarding voting. Furthermore, despite its concerns with how this selection process had played out, including in an unfortunately public way, Australia 
accepted that the Selection Committee considered a new selection process to be the only way 
forward to fill the current vacancy in the Appellate Body. For the future strength and legitimacy of 
the Appellate Body, Australia hoped that the new process would be carried out fairly, meritoriously 
and apolitically. In conclusion, Australia reiterated its belief that Ms. Joan Fitzhenry would have 
made an excellent contribution to the Appellate Body. However, given its disappointment with how this process had transpired, Australia would not be re-nominating Ms. Fitzhenry in the new 
selection process. WT/DSB/M/342 
 
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  10.7.  The representative of Egypt said that his country thanked the Selection Committee for its 
efforts aimed at selecting a new member of the A ppellate Body. Egypt would have wished that the 
selection process be concluded by now and was disappointed that this was not the case. Egypt 
believed that, although there was no written regulation, it was a common understanding that the current vacancy should go to the African continent. Egypt noted that its candidate was both from 
Africa and from the Arab region. However, given the current situation, which was not healthy for 
the system at large, Egypt did not wish to create any precedence that would further undermine the institutional integrity of the WTO by adopting any procedures or any new measures that would 
simply complicate matters further in the future. In  that regard, Egypt was willing to go along with 
the suggestion proposed by the Selection Committee. In Egypt's view, any decision on this matter should be without any prejudice to all the candidates, which were highly-outstanding and well-qualified, including the candidate from Egypt. 
10.8.  The representative of Norway said that his country thanked the Selection Committee for its 
efforts. Norway sincerely regretted that the Membership had not been able to reach a consensus. 
With regard to Kenya's proposal to put this ques tion to a vote, Norway supported the statements 
made by other delegations expressing their view th at it would be more appropriate to start a new 
selection process as proposed by the Selection Committee. 
10.9.  The representative of Turkey said that, like many other Members, his country was not 
content with the current situation and hoped that the selection process would be soon successfully 
concluded. Turkey did not believe that voting wo uld be an appropriate solution because consensus 
had been a core value of the WTO. Turkey was concerned that voting may open a way to recourse to voting and would deviate from consensus. Fo r that reason, Turkey was of the view that 
consensus was still of value and should be pursued in this process as well. 
10.10.  The representative of Japan said that his country appreciated the continued efforts made 
by the Selection Committee. However, it was regrettable that the Committee had concluded that it 
could not recommend a new Appellate Body member to the DSB on 24 February 2014. Japan was 
concerned that one position in the Appellate Body had remained vacant for more than several months. Taking into account the possibility that the number of disputes to be brought to the 
Appellate Body would increase in the near future, Japan, as stated in the previous DSB meeting, 
believed that a realistic approach on the way forward as suggested by the Selection Committee was indispensable for a new Appellate Body member  to be appointed in the near future. With 
regard to voting suggested by Kenya, Japan did not believe that voting was helpful to solve this 
issue and for the system. Japan reiterated that Ar ticle 2.4 of the DSU required that "where the 
rules and procedures of this Understanding provide fo r the DSB to take a decision, it shall do so by 
consensus". Thus, consensus had to be pursued so as to solve this problem. 
10.11.  The representative of Brazil said that his country noted with concern that Members had not 
been able to reach consensus on a candidate for the Appellate Body. It was fully regrettable that 
consensus had not materialized on the basis of the candidates at hand. The entire Membership 
would benefit in having, as soon as possible, a complete competent and independent Appellate 
Body. In view of the common interests that Members had in an efficient and operational Appellate Body, it was also expected that Members show common engagement towards an acceptable and expeditious solution as long as the qualification requirements foreseen in Article 17.3 of the DSU 
were observed. 
10.12.  The representative of the United States said that, as the Chairman had noted, all Members 
had received a fax from the Selection Committee recommending that the DSB commence as soon 
as practicable a new selection process, to be carried out by the Director-General and the 2014 
Chairpersons. As it had noted at the January DSB meeting, the United States viewed the current situation and this type of step forward as far from an ideal outcome. However, given the Selection 
Committee's view that consensus would not be reached on any of the prior candidates, the 
United States would support the recommendation of the Selection Committee to commence a new selection process. The United States did not believe that voting was an appropriate or permissible way of resolving the Selection Committee's inability to reach a consensus. The DSU was explicit 
that DSB decisions were taken by consensus, unle ss the DSB provided otherwise. A move to voting 
would have systemic consequences for the WTO as a whole that all Members would need to seriously reflect on. Taking this type of action would also threaten to politicize the Appellate Body 
selection process in this particular instance and in the future. WT/DSB/M/342 
 
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  10.13.  The representative of Chile said that his country regretted the current situation, which set 
a negative precedent. With regard to voting, Ch ile believed that this would again set a negative 
precedent and as Japan had mentioned, it would not be helpful for the procedure ahead. Chile, 
therefore, supported the suggestion made by the Selection Committee to engage in a new process. 
10.14.  The representative of China said that her country regretted that the Selection Committee 
was unable to recommend a candidate for the vacant post in the Appellate Body. In the WTO 
dispute settlement system, the Appellate Body played  a critical role in achieving a solution to a 
dispute and clarifying the existing provisions of the covered agreements. China, therefore, 
attached great importance to the work of the Appellate Body, and always hoped that the selection 
of an Appellate Body member would run smoothly. Since the workload of the Appellate Body would 
be increased in the coming years, in China's view, the smooth and successful selection of an Appellate Body member to fill the vacancy was urgent for the benefit of the system. China was 
open to any reasonable suggestion on how to address the current difficult situation, including 
exploring some further possible rules with respect to how the Selection Committee heard Members' views and made a recommendation to the DSB in order to avoid the same difficult 
situation happening again. China encouraged Members to follow past practice and show flexibility 
on this matter. 
10.15.  The representative of Hong Kong, China said that his delegation thanked the Selection 
Committee for its hard work. Hong Kong, China was disappointed that, after such a long period of 
time and with so much effort, Members were still not in a position to conclude the process. Hong Kong, China supported the way forward proposed by the Selection Committee in its fax of 24 February 2014 and hoped that Members would continue to work closely so as to find a qualified 
candidate for the vacancy by consensus soon. The post would remain vacant for some time and 
that was not good for the Appellate Body, which was expected to have an increased workload for this year. 
10.16.  The representative of Canada said that his country thanked the Selection Committee for its 
work, and for its persistent efforts to arrive at a recommendation for the appointment of one of the 
four candidates to the Appellate Body. Canada also shared the disappointment of others that these 
efforts had been unable to result in a recommendation, especially in light of the qualified 
candidates that had been put forward and of the amount of effort invested by all involved. This outcome was all the more regrettable given recent  concerns about the workload of the Appellate 
Body, which while light in recent months would only get heavier as the year went on. It was the 
Members, and their efforts to resolve their trad e disputes, that would ultimately suffer from a 
further delay in bringing the Appellate Body back to a full contingent. However, Canada did understand and accept that at this point, the best course of action was to start a new selection 
process, with new deadlines and under the direction of a Selection Committee made up of 2014 
Chairs, and with a call for additional candidates. To pursue any further efforts to force the existing process to result in a nomination risked compromi sing the legitimacy of any resulting appointment, 
and would unnecessarily and unhelpfully politicize appointments to the Appellate Body in the 
process. After all, for the Appella te Body to retain the level of respect and legitimacy that it 
currently enjoyed among the Membership, it was in all Members' interests, and in fact was the original mandate of the Selection Committee, to appoint an Appellate Body Member that enjoyed 
the full support of the entire Membership. Canada, therefore, took some consolation from the fact 
that the Selection Committee had put the highest priority on the interests of the institution by insisting on being able to make a recommendation that would enjoy full support. Canada was 
ready and willing to engage constructively in any consultations over the next few weeks in the 
preparation of a decision that the DSB may take at a future meeting on the launch of a new selection process. 
10.17.  The representative of Singapore said that his country thanked the Selection Committee for 
i t s  w o r k  i n  t r y i n g  t o  f i n d  c o n s e n s u s  o n  a  n e w  A p p e l l a t e  B o d y  m e m b e r .  H o w e v e r ,  S i n g a p o r e  
supported the statements made by other delegati ons expressing their concerns on the issue of 
voting. Singapore noted that Members had always  found a way of resolving issues. Singapore 
urged Members to carefully consider this issue before coming to any decision, especially with 
respect to the proposal on voting. 
10.18.  The representative of Chinese Taipei said that her country thanked the Selection 
Committee for its efforts made in the past months. At the same time, Chinese Taipei also shared 
some of the concerns expressed by other delegations with the current situation. Chinese Taipei WT/DSB/M/342 
 
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  regretted this situation, in particular given that the Selection Committee had itself recognized the 
skill and experience of the candidates. Chinese Ta ipei's concern also stemmed from the fact that 
the Appellate Body played a role in the multilateral trading system that was too important to have 
a vacancy in the Appellate Body for a protracted period of time. On the other hand, under the current situation, a new selection process might appear to be the only option although 
Chinese Taipei was also mindful of the risk th at this might set a negative precedent. In 
Chinese Taipei's view, Members must bear in mind that a new selection process itself was not a solution, and a new selection process did not guarantee success. The issue facing all Members was 
how to manage the new selection process to ensure that they do not face the disappointing 
situation again. Chinese Taipei was open to other ideas and believed that it would benefit from further reflections and discussions. Chinese Taip ei also shared the views expressed by other 
delegations that voting was not a solution. In any event, the consensus rule was at the heart of 
the WTO system, and resort to voting in the present situation may set a negative precedent with 
systemic implications that went beyond the DSB. In conclusion, the credibility of the Appellate Body was at the heart of the integrity of the WTO. Every Member had systemic interests in 
ensuring the proper functioning of the Appellate Bo dy composed of persons of the highest calibre. 
Chinese Taipei remained ready to engage, in a pragmatic spirit, to ensure the rapid conclusion of this process in the interest of the entire Membership. 
10.19.  The representative of Honduras said that her country regretted that, despite the efforts 
made by the Selection Committee, it had been unable to achieve a consensus. Honduras supported 
the recommendation made by the Selection Committee to start a new process that would result in the selection of a candidate that would attract consensus and had the support of all Members. 
10.20.  The representative of South Africa said that her country regretted that a definitive 
outcome could not be obtained pursuant to th e selection process and that a replacement for 
Mr. Unterhalter could not be appointed as a result of this process. South Africa was of the view 
that all proposed candidates held exemplary qualifications and presented outstanding credentials. 
South Africa continued to support all processes going forward with respect to future appointments and hoped that they would continue to be held in  an inclusive, transparent, balanced and fair 
manner, in accordance with the criteria of excellence established and demanded by this critical 
position. Furthermore, South Africa hoped that all attempts would be made to avoid future politicization of this process in the interests of expeditiously filling the vacant Appellate Body post and not hampering its important work. 
10.21.  The Chairman said that the DSB had, in effect, received the final report of the Selection 
Committee. The Selection Committee had concluded its deliberation and as mandated had made 
its recommendation. Thus, its report was a recomme ndation to the DSB and it was up to the DSB 
to decide what to do next. The Selection Committee had made a suggestion and many delegations 
had made careful and thoughtful observations. Some of those observations were consistent with, some with slight variants from, the recommendation of the Selection Committee. It was for the 
DSB itself to adopt a decision on the next steps. That was effectively for the next DSB meeting, 
since Members had all expressed an interest in moving expeditiously. That next meeting happened to be the time when Members would elect a new Chair and it was his intention to hand over the Chairmanship at the very start of that meeting so that the new Chair would coordinate whatever 
decision should be taken going forward. He said that he took his responsibilities seriously as the 
DSB Chair and, until the next meeting, he wo uld try and facilitate ongoing and further 
consultations among the Members themselves to assist the new Chair so that a consensus might 
emerge by the time of the next meeting on the details of a process. Different views had been 
expressed with regard to the status of the current candidates as well as the time-table for the selection process. He hoped that, by the time of  the next meeting, the new Chair might be in a 
position to consolidate a collective view on the next steps. In conclusion, he said that the DSB 
noted the Selection Committee's communication, dated 24 February 2014, as well as Kenya's statement, along with the other statements made at the present meeting, which would form part 
of the record of the meeting.  
10.22.  The DSB took note of the statements. 
__________